**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

)

In the Matter of )

Public Interest Obligations ) MM Docket No. 99-360

of TV Broadcast Licensees )

)

#########  NOTICE OF INQUIRY

Adopted: December 15, 1999 Released: December 20, 1999

Comment Date: March 27, 2000

Reply Comment Date: April 25, 2000

By the Commission: Commissioner Furchtgott-Ruth concurring in part,
dissenting in part and issuing a statement; Commissioner Powell
concurring and issuing a statement; Commissioner Tristani issuing a
statement.

**I. INTRODUCTION**

1.  Television is the primary source of news and information to
    Americans, and provides hours of entertainment every week.[^1] In
    particular, children spend far more time watching television that
    they spend with any other type of media.[^2] Those who broadcast
    television programming thus have a significant impact on society.
    Given the impact of their programming and their use of the public
    airwaves, broadcasters have a special role in serving the public.
    For over seventy years, broadcasters have been required by statute
    to serve the "public interest, convenience, and necessity."[^3]
    Congress has charged the Federal Communications Commission with the
    responsibility of implementing and enforcing this public interest
    requirement. Indeed, this is the "touchstone" of the Commission's
    statutory duty in licensing the public airwaves.[^4] Under the
    Communications Act of 1934, the Commission may issue, renew, or
    approve the transfer of a broadcast license only upon first finding
    that doing so will serve the public interest.[^5]

2.  There has been considerable debate over the years about how the
    Commission should carry out this statutory mandate. Currently,
    broadcasters must comply with a number of affirmative public
    interest programming and service obligations. For example, broadcast
    licensees must provide coverage of issues facing their communities
    and place lists of programming used in providing significant
    treatment of such issues in their public inspection files.[^6]
    Broadcasters must also comply with statutory political broadcasting
    requirements regarding equal opportunities, charges for political
    advertising, and reasonable access for federal candidates.[^7] In
    addition, television broadcasters must provide children's
    educational and informational programming under the Children's
    Television Act of 1990.[^8] The Commission enacted new rules
    implementing this statute in 1996.[^9] In terms of programming
    obligations, broadcasters are also prohibited from airing
    programming that is obscene, and restricted from airing programming
    that is "indecent" during certain times of the day.[^10] Similarly,
    broadcasters also have obligations regarding closed captioning,[^11]
    equal employment opportunity,[^12] sponsorship identification,[^13]
    and advertisements during children's programming.[^14]

3.  The discussion of television broadcasters' public interest
    obligations has been renewed by their transition from analog to
    digital television (DTV) technology. This is due in part to the new
    opportunities DTV provides. DTV holds the promise of reinventing
    free, over-the-air television by offering broadcasters new and
    valuable business opportunities and providing consumers new and
    valuable services. DTV broadcasters will have the technical
    capability and regulatory flexibility to air high definition TV
    (HDTV) programming with state-of-the-art picture clarity; to
    "multicast" by simultaneously providing multiple channels of
    standard digital programming and/or HDTV programming; and to
    "datacast" by providing data such as stock quotes, or interactive TV
    via the DTV bitstream.[^15]

4.  In establishing the statutory framework for the transition to DTV,
    Congress directed the Commission to grant any new DTV licenses to
    all existing television broadcasters.[^16] Congress stated in
    section 336 of the Communications Act that "\[n\]othing in this
    section shall be construed as relieving a television broadcasting
    station from its obligation to serve the public interest,
    convenience, and necessity."[^17] Likewise, in implementing section
    336, the Commission reaffirmed that "digital broadcasters remain
    public trustees with a responsibility to serve the public
    interest,"[^18] and stated that "existing public interest
    requirements continue to apply to all broadcast licensees."[^19]

5.  The Commission also indicated, however, that "\[b\]roadcasters and
    the public are also on notice that the Commission may adopt new
    public interest rules for digital television."[^20] Commenters in
    the DTV proceeding adopted different views on this issue, with some
    arguing that broadcasters' public interest obligations in the
    digital world "should be clearly defined and commensurate with the
    new opportunities provided by the digital channels broadcasters are
    receiving," while others contended that "current public interest
    rules need not change simply because broadcasters will be using
    digital technology to provide the same broadcast service to the
    public."[^21] The Commission declined to resolve this issue in the
    DTV proceeding, instead choosing to issue a "Notice to collect and
    consider all views" on this subject at a later date.[^22]

6.  We undertake that task with this *Notice of Inquiry*. In doing so,
    we are guided by several proposals and recommendations made in
    recent years. Among the most significant of these are the
    recommendations of the President\'s' Advisory Committee on the
    Public Interest Obligations of Digital Television Broadcasters
    ("Advisory Committee"). The Advisory Committee was comprised of a
    broad cross-section of interests, consisting of twenty-two members
    chosen by the President from "the commercial and noncommercial
    broadcasting industry, computer industries, producers, academic
    institutions, public interest organizations, and the advertising
    community."[^23] On December 18, 1998, the Advisory Committee
    submitted a report, which contains ten separate recommendations on
    the public interest obligations digital television broadcasters
    should assume. [^24] These range from enhanced disclosures of
    existing public interest activities to wholly new approaches and
    theoretical frameworks toward the public interest obligations of TV
    broadcasters. Implementation proposals range from asking the
    broadcast industry to make voluntary commitments in some areas, to
    suggesting that the Commission regulate in other areas, and that
    Congress legislate in still others. On October 20, 1999, Vice
    President Gore submitted a letter to Chairman Kennard asking that
    the Commission focus on several of the Advisory Committee's
    recommendations in particular.[^25] We discuss below some of the
    Advisory Committee's ten recommendations that envision a role for
    the Commission.[^26]

7.  In addition to the Advisory Committee's recommendations, on June 3,
    1999, People for Better TV filed a petition for rulemaking and a
    petition for notice of inquiry.[^27] People for Better TV also
    includes a number of diverse groups.[^28] People for Better TV
    argues that the Telecommunications Act of 1996 requires the
    Commission to determine the public interest obligations of DTV
    broadcasters,[^29] that the advent of DTV requires the Commission to
    consider public interest obligations anew, and to clarify whether
    existing guidelines apply,[^30] and that both broadcasters and the
    public need a basic set of public interest standards.[^31] The group
    contends that the Commission should initiate a rulemaking proceeding
    to determine the public interest obligations of digital
    broadcasters.[^32] People for Better TV also urged the Commission to
    issue a notice of inquiry and hold hearings on the public interest
    obligations of digital television licensees, focusing on a variety
    of categories.[^33] On November 16, 1999 People for Better TV
    submitted a letter to Chairman Kennard reiterating its request that
    the Commission initiate a proceeding to determine the public
    interest obligations of DTV broadcasters.[^34]

8.  We are also guided by the thoughts and work of other advocates
    regarding broadcasters' public interest obligations, including those
    proposals that are not as closely tied to the new opportunities
    inherent in digital technology. The conversion from analog to
    digital is a long transition, and both analog and digital
    broadcasters must operate consistently in the public interest during
    the transition. At the same time, we acknowledge that many
    broadcasters have served the public interest in numerous ways over
    the years. According to a report of the National Association of
    Broadcasters published in 1998, the nation's broadcasters provided
    \$6.85 billion in community service in 1996.[^35] Therefore, by this
    *NOI*, we are asking broadcasters and members of the public to
    present their views or ideas on how best to implement the public
    interest standard during the transition. As the courts have
    acknowledged, and the transition to DTV reinforces, the public
    interest standard is "a supple instrument" designed to be flexible
    enough to accommodate the "dynamic aspects of radio
    transmission,"[^36] and we believe that it is an appropriate time to
    create a forum for public debate.

**II. AREAS OF INQUIRY AND REQUEST FOR COMMENTS**

9.  At this the advent of the digital age, we seek comment on how
    broadcasters can best serve the public interest during and after the
    transition to digital technology. We seek comment on challenges
    unique to the digital era, how broadcasters can meet their public
    interest obligations on both their analog and digital channels
    during the transition period, and on various proposals and
    recommendations that have been made on how broadcasters could better
    serve their communities of license. We welcome other proposals, and
    request parties to articulate legal bases for their proposals, and
    explain how they would serve the public interest.

######### A. Challenges Unique to the Digital Era

10. More than 100 DTV stations are currently on the air.[^37] As
    indicated above, these broadcasters, as well as all television
    licensees upon the conversion to DTV, have the flexibility either to
    "multicast," to provide HDTV, or to "multiplex" DTV programming and
    "ancillary and supplementary services" at the same time.[^38] Both
    the Act and the Commission's implementing actions make it clear that
    DTV broadcasters must continue to serve the public interest.
    However, how this obligation may be fulfilled in the digital era has
    become a subject of discussion, given the new capabilities of
    digital technology. We seek comment on how to define these
    obligations. We are especially interested in specific proposals
    addressing whether and how existing public interest obligations
    should translate to the digital medium.

11. In implementing section 336, the Commission required that
    broadcasters air "free digital video programming service the
    resolution of which is comparable to or better than that of today's
    services, and aired during the same time period that their analog
    channel is broadcasting."[^39] In doing so, the Commission stated
    that "broadcast licensees and the public are on notice that existing
    public interest requirements continue to apply to all broadcast
    licensees."[^40] It is thus clear that DTV broadcasters must air
    programming responsive to their communities of license, comply with
    the statutory requirements concerning political advertising and
    candidate access, and provide children's educational and
    informational programming, among other things. But as People for
    Better TV ask, how do these obligations apply to a DTV broadcaster
    that chooses to multicast?[^41] Do a licensee's public interest
    obligations attach to the DTV channel as a whole, such that a
    licensee has discretion to fulfill them on one of its program
    streams, or to air some of its public interest programming on more
    than one of its program streams? Should, instead, the obligations
    attach to each program stream offered by the licensee, such that,
    for example, a licensee would need to air children's programming on
    each of its DTV program streams? The Advisory Committee Report
    contemplates that, under certain circumstances, a digital
    broadcaster should not have nonstatutory public interest obligations
    imposed on channels other than its "primary" channel.[^42] A
    majority of the members of the Advisory Committee believe that the
    FCC should prohibit broadcasters from segregating candidate-centered
    programming to separate program streams, because they believe that
    would violate candidates' reasonable access and equal
    opportunities.[^43] We seek comment on these approaches. In
    addition, how should we take into account the fact that DTV
    broadcasters can choose either to multicast multiple standard
    definition DTV program streams or broadcast one or two HDTV program
    streams during different parts of the day? In addressing these
    issues, commenters should discuss the requirements of section 336(d)
    of the Act, which states that a "television licensee shall establish
    that *all* of its program services on the existing or advanced
    spectrum are in the public interest."[^44]

12. People for Better TV propose several other ways that digital
    broadcasters might better serve the nation's children, such as
    setting aside a minimum number of hours each week to provide
    educational programs or services, which might include data
    transmission for schools.[^45] In addition, PBTV suggests that the
    increased information capability of digital technology could improve
    the current voluntary ratings system.[^46] We seek comment on these
    ideas. In addition, should the ratings of programs promoted by
    broadcasters be consistent with the rating of the program during
    which the promotions run? We also ask commenters to address how the
    policies set forth in the Children's Television Policy
    Statement[^47] should be applied in the digital environment.

13. By definition, ancillary and supplementary services, such as
    datacasting or paging, are services other than free, over-the-air
    services.[^48] Do a licensee's public interest obligations apply to
    its ancillary and supplementary services? In addressing these
    issues, commenters should discuss the relevance of several sections
    of section 336. People for Better TV contends that "the public
    interest standard attends to all DTV uses of the spectrum,"[^49] and
    points out that section 336(a)(2) states that the Commission "shall
    adopt regulations that allow the holders of \[DTV\] licenses to
    offer such ancillary and supplementary services on designated
    frequencies as may be consistent with the public interest,
    convenience, and necessity." We note that section 336(e) requires
    the Commission to collect fees from DTV broadcasters that offer
    ancillary and supplementary services, which fees must "recover for
    the public an amount that, to the extent feasible, equals but does
    not exceed (over the term of the license) the amount that would have
    been recovered had such services been licensed pursuant to the
    provision of section 309(j) of this Act and the Commission's
    regulations thereunder."[^50] In addition, section 336(b)(3) simply
    requires the Commission to "apply to any other ancillary and
    supplementary service such of the Commission's regulations as are
    applicable to the offering of analogous services by any other
    person."[^51] The Advisory Committee Report recommends that
    "\[b\]roadcasters that choose to implement datacasting should
    transmit information on behalf of local schools, libraries,
    community-based organizations, governmental bodies, and public
    safety institutions."[^52] The Advisory Committee Report suggests
    that "\[t\]his activity should count toward fulfillment of a digital
    broadcaster's public interest obligations,"[^53] without indicating
    which regulations are applicable to ancillary and supplementary
    services. We seek comment on this proposal. How would datacasting
    count toward the

DTV broadcasters' public interest obligations? We also seek comment more
generally on whether the public interest obligations should apply to
ancillary and supplementary services, and if so, how.

**B. Responding to the Community**

14. One of a broadcaster's fundamental public interest obligations is to
    air programming responsive to the needs and interests of its
    community of license.[^54] Another of its most basic obligations in
    responding to the public's informational needs is to air emergency
    information.[^55] Technological advances, including digital
    technology, may allow broadcasters to fulfill these obligations
    better. For example, digital technology enables broadcasters to
    track storms house by house.[^56] In addition, broadcasters might
    make information about their programming more accessible, and
    therefore more responsive, to their communities of license through
    posting such information on websites on the Internet. As
    broadcasters move forward with their transition to digital
    technology, we seek to find ways to help them serve their
    communities better and more fully.

**1. Disclosure Obligations**

15. People for Better TV states that DTV broadcasters should "disclose
    their public interest programming and activities on a quarterly
    basis, matched against ascertained community needs," gathered by
    reaching out to "ordinary citizens and local leaders" and sought
    through "postal and electronic mail services as well as broadcast
    announcements."[^57] The Advisory Committee Report recommends that
    DTV broadcasters "should be required to make enhanced disclosures of
    their public interest programming and activities on a quarterly
    basis, using standardized check-off forms that reduce administrative
    burdens and can be easily understood by the public."[^58] The
    Advisory Committee Report explains that effective self-regulation
    requires broadcasters to make available to the public adequate
    information about what they are doing. The Committee notes that the
    Commission already requires all TV broadcasters to place in their
    public files separate quarterly reports on their non-entertainment
    programming responsive to community needs and on their children's
    programming,[^59] and recommends that the Commission require
    broadcasters to augment these reports. The enhanced disclosures
    "should include but not be limited to contributions to political
    discourse, public service announcements, children's and educational
    programming, local programming, programming that meets the needs of
    underserved communities, and community-specific activities."[^60]
    The Committee also recommends that digital TV broadcasters take
    steps to distribute public interest information more widely, through
    newspapers and websites.[^61]

16. We seek comment on the above recommendations. Our rules currently
    require commercial TV broadcasters to include in their public file,
    among other things, citizen agreements, records concerning
    broadcasts by candidates for public office, annual employment
    reports, letters and e-mail from the public, issues/programming
    lists, records concerning children's programming commercial limits,
    and children's television programming reports.[^62] Should
    broadcasters provide the additional types of public service
    information proposed by the Advisory Committee Report and People for
    Better TV? Should they provide information in addition to, or in
    lieu of, that proposed by the Committee and People for Better TV?
    Should the public file contain information on what programming has
    closed captioning and video description? We seek comment on the
    extent to which the Advisory Committee's and People for Better TV's
    proposals parallel the Commission's previous ascertainment
    requirements, which the Commission repealed in the 1980s,[^63] and
    we ask parties to address whether the Commission's reasons for
    eliminating those requirements apply to our consideration of these
    proposals. These ascertainment guidelines set forth specific
    standards for broadcasters on consulting with community leaders,
    identifying and responding to community needs and problems through
    programming, and maintaining and making available various records on
    their ascertainment procedures.

17. We currently allow licensees to maintain their public inspection
    file in computer databases, and encourage licensees that elect this
    option to post their public file on any websites they maintain.[^64]
    We seek comment on how many broadcasters provide their public file
    in this format, and the costs and benefits of doing so. In
    particular, we seek comment on how broadcasters could use the
    Internet to ensure that they are responsive to the needs of the
    public. We seek comment on whether broadcasters should be required
    to make their public files available on the Internet, and whether
    those broadcasters that maintain a station website on the Internet
    could or should use the Internet to interact directly with the
    public, perhaps by establishing forums in which the public could
    post comments and engage in an ongoing dialogue about the
    broadcaster's programming. How could these websites and forums be
    made accessible to persons with disabilities? In addition, we seek
    comment on whether it would promote responsiveness to the community
    to require the disclosure of certain information (e.g., the
    individual ultimately responsible for a program's airing or content)
    that would enable public input more easily and meaningfully.

**2. Disaster Warnings**

18. The Advisory Committee Report recommends that "\[b\]roadcasters
    should work with appropriate emergency communications specialists
    and manufacturers to determine the most effective means to transmit
    disaster warning information. The means chosen should be minimally
    intrusive on bandwidth and not result in undue additional burdens or
    costs on broadcasters. Appropriate regulatory authorities should
    also work with manufacturers of digital television sets to make sure
    that they are modified to handle these kinds of transmissions."[^65]
    The Advisory Committee Report explains that digital technology will
    provide innovative and new ways to transmit warnings, such as
    pinpointing specific households or neighborhoods at risk, and
    suggests that DTV broadcasters take advantage of these technological
    advances. The Advisory Committee Report also states that most of
    these innovations will require only minimal use of the 6 MHz
    bandwidth allocated to digital broadcasters.

19. We seek comment on the Advisory Committee Report's recommendation.
    One of broadcasters' fundamental public interest obligations is to
    warn viewers about impending disasters and keep them informed about
    related events. What unique capabilities does digital technology
    give broadcasters to deliver disaster-related information? What role
    should the Commission play to encourage broadcasters to deploy such
    technology to deliver enhanced disaster information? How can we
    facilitate the realization of the Advisory Committee's goals? We
    note that the Commission recently adopted its "Emergency Alert
    System" requirements, set forth in Part 11 of the Commission's
    rules. Should the Commission adopt any different requirements for
    DTV broadcasters?

**3. Minimum Public Interest Obligations**

20. The Advisory Committee Report recommends that \"\[t\]he FCC should
    adopt a set of mandatory minimum public interest requirements for
    digital broadcasters . . . that would not impose an undue burden on
    digital broadcast stations, . . . should apply to areas generally
    accepted as important universal responsibilities for broadcasters,\"
    and should be phased in over several years.[^66]

21. We seek comment on the Advisory Committee Report\'s recommendations
    regarding minimum public interest requirements. Many members of the
    Advisory Committee were concerned that not all television
    broadcasters would adopt voluntary measures, while other members
    strongly opposed Commission-imposed minimum public interest
    requirements as unnecessary, preferring to give television
    broadcasters maximum flexibility and discretion in meeting their
    public interest obligations. This issue has previously generated
    strong debate. Some television broadcasters have previously opposed
    increasing or making more specific their public interest
    obligations, reasoning that the marketplace is sufficient to produce
    adequate local programming and meet community needs. Indeed, many
    television broadcasters have demonstrated a strong record of
    community service.[^67] Other parties have argued in our DTV
    proceeding that the Commission should adopt more specific public
    interest programming requirements given the new opportunities
    broadcasters will have in converting to DTV.[^68] They also express
    the concern that television broadcasters are not airing a sufficient
    amount of public interest programming, including local public
    affairs programming.[^69]

22. We invite comment on this debate. Should the Commission establish
    more specific minimum requirements or guidelines regarding
    television broadcasters' public interest obligations? Would this
    make the license renewal process more certain and meaningful by
    spelling out the public interest standard in more detail? How would
    such minimum requirements be defined? What additional costs, if any,
    would those requirements impose? Are there sufficient marketplace
    incentives to ensure the provision of programming responsive to
    community needs, obviating the need for additional requirements?

**C. Enhancing Access to the Media**

23. One of the Commission's long-standing goals in the area of broadcast
    regulation is to enhance the access to the media by all people,
    including people of all races, ethnicities, and gender, and, most
    recently, disabled persons. Congress emphasized this goal when it
    amended section 1 of the Communications Act in 1996 to refine this
    agency's mission as making available "to all people of the United
    States, without discrimination on the basis of race, color,
    religion, national origin, or sex, a rapid, efficient, Nation-wide,
    and world-wide wire and radio communication service. . . ." It
    further highlighted this goal when it added provisions to the Act
    concerning people with disabilities, such as section 713 relating to
    closed captioning and video description.[^70] Given the efficiencies
    of digital technology, DTV broadcasters will be able to "multicast"
    and air several programs at the same time, as well as provide more
    information within the signal of each programming stream. We seek
    comment on the ways broadcasters can use this technology to provide
    greater access to the media.

**1. Disabilities**

24. Digital technology offers great possibilities for broadcasters to
    make their programming more accessible to persons with disabilities.
    For example, digital technology could enable viewers to change the
    size of captions in order to see both captions and the text
    appearing on a TV screen. In addition, digital technology permits
    broadcasters to provide several different audio programs, which
    could make video description more widely available.

25. In urging that the Commission issue this *NOI*, People for Better TV
    ask that the Commission emphasize, among other things, the
    "expansion of services to person with disabilities."[^71] The group
    specifically suggests that a "digital broadcast station should
    provide closed captioning and description services for the blind of
    PSAs, public affairs programming, and political programming."[^72]
    It urges that "\[c\]aptioning and descriptions in these areas should
    be phased in over the first 4 years of a station's digital
    broadcasts, but should be completed no later than 2006."[^73]
    Similarly, the Advisory Committee Report recommends that digital TV
    broadcasters "take full advantage" of new digital technologies to
    provide "maximum choice and quality for Americans with disabilities,
    where doing so would not impose an undue burden on the
    broadcasters."[^74] The Committee specifically enumerates closed
    captioning, video description, and disability access to ancillary
    and supplementary services. The Committee asks broadcasters to take
    full advantage of digital closed captioning technology that will
    enable viewers to change the size of captions to see both the
    caption and text otherwise behind the caption, and also calls on
    broadcasters to expand gradually captioning on PSAs, public affairs
    programming, and political programming. The Committee also requests
    digital broadcasters to allocate sufficient bandwidth among their
    multiple audio channels to make expanded use of video description
    technology feasible. The Committee further suggests that any digital
    broadcaster that provides ancillary and supplementary services not
    impinge on the 9600 baud bandwidth currently set aside for closed
    captioning, and encourages broadcasters to explore new digital
    technologies to expand access to such services to persons with
    disabilities, such as offering text options for material presented
    orally and an audio option for material presented visually. The
    Committee finally recommends that the Commission and other
    regulatory authorities work with set manufacturers to ensure that
    modifications in audio channels, decoders, and other technical areas
    are designed to ensure the most efficient, inexpensive, and
    innovative capabilities for disability access.

26. We seek comment on these proposals. We note that the Commission has
    adopted closed captioning rules to implement section 305 of the 1996
    Act.[^75] These closed captioning rules require broadcasters (both
    analog and digital TV broadcasters, among other video programming
    distributors and providers) to caption new programming gradually,
    according to a phase-in schedule,[^76] and to caption 75% of
    "pre-rule" programming by 2008.[^77] Our rules also require
    broadcasters to pass through the captioning provided by program
    suppliers, unless it requires reformatting.[^78] Certain types of
    programming and providers, however, are exempt from these
    requirements.[^79] Should the Commission impose different
    requirements on DTV broadcasters? We note that we have recently
    proposed to adopt technical standards for the display of closed
    captioning on DTV receivers, and to require the inclusion of closed
    captioning decoder circuitry in DTV receivers.[^80]

27. With respect to video description, we note that the Commission has
    submitted two reports to Congress, pursuant to section 305(f) of the
    1996 Act (codified as section 713(f) of the 1934 Act), [^81] and
    recently proposed limited rules to phase video description into the
    marketplace.[^82] In both of its reports to Congress, the Commission
    noted that, since digital technology does not have the capacity
    limitations of analog, its more widespread deployment will, in turn,
    make more widespread video description available. The Commission
    therefore suggested that any phase-in schedules should take into
    account the transition to DTV. In the *Video Description Notice*, we
    thus proposed limited rules for analog broadcasters, but made clear
    our intention to extend video description to digital broadcasters.
    We seek comment on how the Commission could encourage DTV
    broadcasters to take advantage of the enhanced capabilities of the
    technology to provide more video description.

28. The Advisory Committee Report also recommends that DTV broadcasters
    make ancillary and supplementary services available to persons with
    disabilities. We seek comment on what types of ancillary and
    services broadcasters might provide, and on how they could be made
    accessible to persons with disabilities.

**2. Diversity**

29. Diversity of viewpoint, ownership, and employment have long been and
    continues to be a fundamental public policy goal in broadcasting. In
    section 309(j) of the Act, Congress directed the Commission to
    prescribe competitive bidding rules to promote "economic opportunity
    for a wide variety of applicants, including small businesses, rural
    telephone companies, and businesses owned by members of minority
    groups and women."[^83] In part, to fulfill that mandate, we offered
    a bidding credit to new entrants in our recent auction of broadcast
    licenses.[^84] Prior to the adoption of section 309(j), and
    throughout its history, the Commission has also pursued a number of
    initiatives to diversify broadcast station ownership and employment.
    For example, the Commission identified "diversification of control
    of the media of mass communications" as "a factor of primary
    significance" in its comparative licensing processes,[^85] and
    adopted diversity and minority "preferences" in certain of its
    random selection processes.[^86] In addition, we are currently
    conducting a number of studies to evaluate the barriers to
    acquisition of broadcast licenses, and barriers to entry or growth,
    that small, minority-, and women-owned businesses face, as well as
    to examine the impact of our multiple ownership rules on broadcast
    station ownership, and the impact of small, minority, and women
    ownership of broadcast stations on service.[^87] The Commission has
    also adopted equal opportunity rules that are designed to foster
    opportunity in the broadcast industry for minorities and women. The
    outreach portion of these rules was struck down on constitutional
    grounds by the D.C. Circuit.[^88] However, last November, we issued
    a *Notice of Proposed Rulemaking* proposing new EEO rules,[^89] and
    expect to issue an order in the near future.

30. Broadcasters have voluntarily pursued a number of initiatives to
    foster diversity. Most recently, broadcasters created an investment
    fund, with current initial cash commitments of \$175 million and
    ultimate purchasing power of possibly \$1 billion, to spur ownership
    of television and radio by minorities and women.[^90] In addition,
    many broadcasters have made voluntary commitments to abide by equal
    opportunity principles, whether required by law to do so or
    not.[^91]

31. People for Better TV ask that DTV broadcasters exploit digital
    technology to reflect the diversity of their communities, through
    any number of practices. The group explains that network programming
    cannot respond to diverse needs of each community, and so local
    stations must come to know and provide service to diverse
    communities. It asks that broadcasters support the goal of diversity
    and report quarterly on their efforts.[^92]

32. The Advisory Committee Report states that "\[d\]iversity is an
    important value in broadcasting, whether it is in programming,
    political discourse, hiring, promotion, or business opportunities
    within the industry."[^93] As such, it recommends that "broadcasters
    seize the opportunity inherent in the digital television technology
    to substantially enhance the diversity available in the television
    marketplace."[^94] Many of the Advisory Committee's other
    recommendations bear on its goal of diversity in broadcasting. For
    example, the Advisory Committee Report advocates flexibility in
    multiplexing so that broadcasters can create new opportunities for
    minority entrepreneurship through channel-leasing arrangements,
    partnerships and other creative business arrangements. In addition,
    the Advisory Committee Report recommends that, out of the returned
    analog spectrum one new 6 MHz channel for each viewing community be
    reserved for noncommercial purposes, including educational
    programming directed at minority groups and other underserved
    segments of the community. The Committee also recommends that
    "broadcasters voluntarily redouble their individual and collective
    efforts during the digital transition to encourage effective
    participation by minorities and women at all levels of the
    industry," including hiring and promotion policies that result in
    significant representation of minorities and women in the
    decision-making positions in the broadcast industry. The Committee
    hopes that all of the recommendations will help independent
    producers provide new programming. We note that several major civil
    rights organizations, including NAACP and La Raza, have raised
    similar concerns about the lack of cultural diversity on network
    programming.

33. The Advisory Committee Report generally does not contain separate,
    stand-alone recommendations on how to achieve diversity in
    broadcasting; its recommendations are largely contained within other
    portions of the report on which we have sought comment above. In
    addition, as indicated above, the Commission currently has a number
    of initiatives underway designed to diversify broadcast ownership
    and employment. What other ways could and should the Commission
    encourage diversity in broadcasting, consistent with relevant
    constitutional standards? We seek comment on innovative ways unique
    to DTV that the Commission could use to encourage diversity in the
    digital era, and encourage commenters to submit specific proposals.

**D. Enhancing Political Discourse**

34. The Commission has long interpreted the statutory public interest
    standard as imposing an obligation on broadcast licensees to air
    programming regarding political campaigns.[^95] The Supreme Court
    likewise has recognized the impact television broadcasting has on
    our political system: "Deliberation on the positions and
    qualifications of candidates is integral to our system of
    government, and electoral speech may have its most profound and
    widespread impact when it is disseminated through televised debates.
    A majority of the population cites television as its primary source
    of election information, and debates are regarded as the 'only
    occasion during a campaign when the attention of a large portion of
    the American public is focused on the election, as well as the only
    campaign information format which potentially offers sufficient time
    to explore issues and policies in depth in a neutral forum.'"[^96]
    We seek comment on ways that candidate access to television and thus
    the quality of political discourse might be improved. We propose no
    rules or policies in this *NOI*. Rather our goal in this *NOI* is to
    initiate a public debate on the question of whether, and how,
    broadcasters' public interest obligations can be refined to promote
    democracy and better educate the voting public. This debate will
    greatly assist the Commission and Congress in determining what, if
    any, further steps should be taken on these important issues.

35. We note that some broadcasters have devoted many hours of program
    time to political coverage. According to a report recently issued by
    the National Association of Broadcasters (\"NAB Report\"),[^97] in
    the 1996 election cycle broadcasters valued the time they
    voluntarily devoted to political campaigns at \$148.4 million.[^98]
    This programming took the form of coverage of debates, conventions
    and issue fora. Many more hours of news programming not accounted
    for in these figures have been dedicated to covering local and
    national campaigns. In addition, during the 1996 elections, the Fox,
    PBS, and ABC networks voluntarily provided free airtime to the major
    presidential candidates using a variety of formats. For example,
    during the last six weeks of the 1996 presidential campaign the Fox
    television network offered each major presidential candidate free
    airtime, including the opportunity to make ten one-minute position
    statements that were broadcast in prime time. The PBS and ABC
    television networks also set aside free airtime for presentations by
    the major presidential candidates, and the A.H. Belo Corporation
    provided free airtime in selected federal congressional elections
    and gubernatorial races.[^99] The Commission exempted these efforts
    from the equal opportunity requirements, finding that the proposals
    qualified as on-the-spot coverage of a bona fide news event. We seek
    comment on what the Commission can do to encourage these kinds of
    voluntary efforts by television broadcasters.

36. On the other hand, we note that there are indications that many
    television broadcasters are providing scant coverage of local public
    affairs, and what coverage there is may be shrinking. For instance,
    a 1998 study by the University of Southern California Annenberg
    School for Communication found that only 0.31% of local news focused
    on the California governor's race, compared to a figure of 1.8%
    in 1974. Similarly, an April 1998 Join Report by the Media Access
    Project and the Benton Foundation found that, in the markets
    examined, 35% of the stations provide no local news, and 25% offer
    neither local public affairs programming nor local news.[^100]

37. The Advisory Committee Report recommends that television
    broadcasters provide five minutes each night between 5:00 p.m. and
    11:35 p.m. (or the appropriate equivalent in Central and Mountain
    time zones) for "candidate-centered discourse" thirty days before an
    election.[^101] The Committee envisions maximum flexibility for
    broadcasters, allowing them to choose the candidates and races --
    federal, state, and local -- that deserve more attention. The
    Committee envisions that stations could choose formats, which might
    include giving candidates one minute of airtime, conducting
    mini-debates, or doing brief interviews, or including the
    "discourse" in newcasts. We seek comment on this idea. More
    generally, are there steps the Commission can take to promote
    voluntary efforts to enhance political debate and the information
    the public receives concerning candidates?

38. Others have proposed that the Commission adopt rules requiring
    broadcast licensees to provide time to candidates.[^102] Although
    the Advisory Committee Report proposed voluntary efforts, thirteen
    members of the Committee - a majority -- contend that the
    Committee's recommendations do not go far enough, and that the
    Commission should, among other things, require television
    broadcasters to provide some airtime for national and local
    candidates.[^103] In addition, former FCC General Counsel Henry
    Geller, on behalf of himself and others, ask the Commission to
    require television broadcasters to provide political candidates a
    reasonable amount of time each day in advance of a general
    election.[^104] More specifically, Geller et al. propose that the
    Commission require television broadcasters to provide twenty minutes
    of airtime each day thirty days before a general election in
    even-numbered years, and fifteen days before in odd-numbered years,
    when there are fewer elections. Geller et al. suggest that the
    Commission give television broadcasters the flexibility to decide
    how to provide the total of twenty minutes, except that the time
    should be provided between 6:00 a.m. to midnight, with at least five
    minutes in prime time. Geller et al. further suggest that the
    Communications Act requires the Commission to leave the selection of
    the races to be covered to the licensees.[^105] Geller et al.
    contend that the Commission's public interest authority extends to
    requiring broadcasters to provide time.[^106] We seek comment on
    these approaches, and on the Commission's authority to require
    broadcasters to provide airtime to political candidates. We also
    seek comment on the Advisory Committee's recommendation that the
    Commission should prohibit television broadcasters from adopting
    blanket bans on the sale of airtime to state and local
    candidates.[^107]

**IV. ADMINISTRATIVE MATTERS**

39. [Comments and Reply Comments]{.underline}. Pursuant to applicable
    procedures set forth in sections 1.415 and 1.419 of the Commission's
    rules, 47 C.F.R. §§ 1.415, 1.419, interested parties must file
    comments on or before March 27, 2000, and reply comments on or
    before April 25, 2000. Comments may be filed using the Commission's
    Electronic Comment Filing System (ECFS) or by filing paper copies.
    *See Electronic Filing of Documents in Rulemaking Proceedings*, 63
    Fed. Reg. 24,121 (1998).

40. Comments filed through ECFS can be sent as an electronic file via
    the Internet to <http://www.fcc.gov/e-file/ecfs.html>. Generally,
    only one copy of an electronic submission must be filed. In
    completing the transmittal screen, commenters should include their
    full name, Postal Service mailing address, and the applicable docket
    or rulemaking number. Parties may also submit an electronic comment
    via e-mail. To get filing instructions for e-mail comments,
    commenters should send an e-mail to <edfs@fcc.gov>, and should
    include the following words in the body of the message, "get form
    \<your e-mail address\>." A sample form and directions will be sent
    in reply.

41. Parties who choose to file by paper must file must file an original
    and four copies of each filing. All filings must be sent to the
    Commission's Secretary, Magalie Roman Salas, Office of the
    Secretary, Federal Communications Commission, 445 Twelfth Street,
    S.W., TW-A325, Washington, D.C. 20554.

42. Parties who choose to file paper should also submit their comments
    on diskette. These diskettes should be addressed to: Wanda Hardy,
    Paralegal Specialist, Mass Media Bureau, Policy and Rules Division,
    Federal Communications Commission, 445 Twelfth Street, S.W., 2-C221,
    Washington, D.C. 20554. Such a submission should be on a 3.5 inch
    diskette formatted in an IBM compatible format using Word 97 or
    compatible software. The diskette should be accompanied by a cover
    letter and should be submitted in "read only" mode. The diskette
    should be clearly labeled with the commenter's name, proceeding
    (including the lead docket number in this case (MM Docket No.
    99-360), type of pleading (comment or reply comment), date of
    submission, and the name of the electronic file on the diskette. The
    label should also include the following phrase "Disk Copy -- Not an
    Original." Each diskette should contain only one party's pleadings,
    preferably in a single electronic file. In addition, commenters must
    sent diskette copies to the Commission's copy contractor,
    International Transcription Service, Inc., 445 Twelfth Street, S.W.,
    CY-B402, Washington, D.C. 20554.

43. Comments and reply comments will be available for public inspection
    during regular business hours in the FCC Reference Center, Federal
    Communications Commission, 445 Twelfth Street, S.W., CY-A257,
    Washington, D.C. 20554. Persons with disabilities who need
    assistance in the FCC Reference Center may contact Bill Cline
    at (202) 418-0270, (202) 418-2555 TTY, or <bcline@fcc.gov>. Comments
    and reply comments also will be available electronically at the
    Commission's Disabilities Issues Task Force web site:
    [www.fcc.gov/dtf](http://www.fcc.gov/dtf). Comments and reply
    comments are available electronically in ASCII text, Word 97, and
    Adobe Acrobat.

44. This document is available in alternative formats (computer
    diskette, large print, audio cassette, and Braille). Persons who
    need documents in such formats may contact Armetta Henry at (202)
    4810-0260, TTY (202) 418-2555, or
    [ahenry@fcc.gov](mailto:ahenray@fcc.gov).

45. [*Ex Parte* Rules]{.underline}. Pursuant to the provisions of 47
    C.F.R. § 1.1204(b)(1) this is an exempt proceeding. *Ex parte*
    presentations to or from Commission decision-making personnel are
    permissible and need not be disclosed.

46. [Additional Information]{.underline}. For additional information on
    this proceeding, please contact Eric Bash in the Mass Media Bureau,
    Policy & Rules Division, (202) 418-2130, TTY (202) 418-1169.

**IV. ORDERING CLAUSE**

47. Accordingly, IT IS ORDERED that pursuant to the authority contained
    in sections 4(i), 303(g), 303(r), 336 and 403 of the Communications
    Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(g), 303(r), 336,
    and 403, this *Notice of Inquiry* IS ADOPTED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**SEPARATE STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH, CONCURRING
IN PART AND DISSENTING IN PART**

*Re Public Interest Obligations of TV Broadcast Licensees, Notice of
Inquiry*

I believe today's Notice of Inquiry is a significant step in
implementing Section 336's directives regarding the transition from
analog to digital broadcast services. The birth of digital television
raises discrete issues regarding application of our existing public
interest requirements during the transition period and beyond. I concur
in the Commission's decision to utilize the flexibility afforded by a
Notice of Inquiry to develop a record on these narrow issues.

However, I am both surprised and disturbed by many aspects of the
Notice. First, the majority has crafted a document of vast breadth,
often musing about public interest mandates that have no discernible
nexus to the transition to digital technology. Rather, it appears that
special interests have seized on this opportunity to wring as many
concessions as possible out of broadcasters. For example, the NOI
considers proposals that broadcasters fund solutions to such diverse
problems as minority access to capital and the quality of our political
discourse. I believe even suggesting such broad policies in this
deregulatory and competitive age is pure folly.

Second, this NOI is remarkably out-of-step with today's communications
marketplace. The Notice seems to reflect a vintage 1960s' big-government
pro-regulation philosophy based on the fundamental factual premise that
broadcast television is the sole, dominant media outlet. Yet the new
millennium is a vastly different time. The Commission's rules should be
moving towards deregulation, not further burdening the emergence of one
nascent mass media competitor: digital television (DTV).

Third, I am uncomfortable with this [independent]{.underline} agency
taking its "guidance" and "focus" from an executive branch Committee and
the Vice President on issues that are exclusively within our
jurisdiction[^108] ^1^ Moreover, the timing of today's Inquiry -- only
weeks after the arrival of a letter request for such action by the Vice
President -- casts unfortunate doubt on our independence as an agency.

Based on these three factors, I respectfully dissent in part from this
Notice of Inquiry.

**I. A Limited Inquiry**

As noted above, I do believe that this proceeding will assist the
Commission in applying our current public interest obligations to DTV.
As acknowledged by the Notice, Section 336 (d) of the Act states
"\[n\]othing in this section shall be construed as relieving a
television broadcasting station from its obligation to serve the public
interest, convenience and necessity.[^109] ^2^ That section also
requires that "\[i\]n the Commission's review of any application for
renewal of a broadcast license for a television station that provides
ancillary or supplementary services, the television licensee shall
establish that all of its program services on the existing or advanced
television spectrum are in the public interest." Thus, the statute
supports the Commission's application of its current public interest
obligations to DTV and an assessment of the role of these obligations,
if any, to ancillary or supplementary services.

Therefore I believe this NOI rightly addresses such issues as how the
public interest obligations apply in a multicast environment (¶ 11), the
public interest obligations (if any) that should apply to ancillary and
supplementary services provided by DTV broadcasters (¶ 13), and the
closed captioning obligations of DTV under Section 305 (f) (¶ 23).
Unfortunately, the NOI does not stop there. Instead it goes on (and on)
with a laundry list of potential opportunities for "freebies" to be
extracted from broadcasters for various "public" purposes -- most of
questionable utility and legality.

**II. The Great DTV Society?**

The NOI transforms this proceeding into a roving mandate to seek out
"good" things that we can make broadcasters do. The item does not appear
to require any particular linkage between the proposals and the
transition to DTV. In some cases, there is little connection to
broadcasting at all. Moreover, there seems to be little regard for the
nature of our statutory authority in this area or the limits imposed by
the Constitution.

The proposals are breathtaking in scope. The NOI postulates that
broadcasters may: be forced to provide subsidized datacasting to schools
and libraries (¶ 13), face new minimum standards for satisfying their
public interest obligation (¶ 19), and be required to set up Internet
chat rooms to discuss their public interest obligations (¶ 17). The NOI
also details a proposal to carve out a channel in cleared analog
spectrum for minority educational broadcasting (¶29) and searches for
ways broadcasters can be used so that "the quality of political
discourse might be improved" (¶ 31). Apparently the Notice dreams of
creating a new Great DTV Society.

Even if the proposals contained in this Notice had merit -- which I
believe most of them do not -- it eludes me as to why this NOI has
become the vehicle for so many big government causes designed to cure
virtually every social ill through the mandated largesse of
broadcasters. To be sure, there was an argument to be made that
broadcasters should pay for their DTV spectrum. Indeed that argument was
made in the proper time and place: during the legislative process in
Congress. That debate has now been settled through passage of Section
336. It is not for us to backdoor that process by now extracting our
pound of flesh for this spectrum.

The vast number of ideas set forth in the Notice makes it difficult to
address them all in any detail. However, I discuss below two prominent
examples that illustrate these misguided applications of our "public
interest" authority.

**A. Improving Political Discourse?**

In paragraphs 31-34, the Notice sets forth various proposals to grant
candidates "free" air time. Congress has repeatedly debated and refused
to adopt such a requirement. This legislative activity makes it all the
more difficult to assert the legal argument that we have had "public
interest" authority to adopt such a requirement all along.[^110] ^3^
Indeed, I have trouble imagining how we could explain, as the Supreme
Court has consistently required, that "free" time is \"\'reasonably
ancillary to the effective performance of the Commission\'s various
responsibilities for the regulation of television broadcasting.\'[^111]
^4^

Free air time is also just bad policy -- a bad policy that has no
relationship to the stated purpose of the NOI. First, just who would pay
for all of this \"free\" air time? Broadcasters would, through lost
advertising revenue. What this proposal thus amounts to is a painful and
targeted tax on their industry in order to fund a general public
benefit. This proposal would merely shift the costs of political air
time from those who willingly donate to political candidates to the
broadcast industry and American consumers, whose resultant funding of
this speech could hardly be considered voluntary. In addition, it is not
at all clear that free airtime would advance the majority's apparent
goals of "promot\[ing\] democracy" and "better educating the voting
public.[^112] ^5^

**B. New Minimum Obligations?**

I am also troubled by the portion of the item that asks whether we
should specify and quantify broadcasters\' public interest obligations.
Of course, the closer the Commission gets to outright mandates of type
and time for broadcast programming, the more perilously near protected
First Amendment ground one gets. As the D.C. Circuit put it:

\"\[I\]n applying the public interest standard to programming, the
Commission walks a tightrope between saying too much and saying too
little. In most areas it has resolved this dilemma by imposing only
*general* affirmative duties‑e. g., to strike a balance between the
various interests of the community, or to provide a reasonable amount of
time for the presentation of programs devoted to the discussion of
public issues. . . . Given . . . \[the Commission\'s\] long‑established
authority to consider program content, this general approach probably
minimizes the dangers of censorship or pervasive supervision.[^113] ^6^

This is reason enough for caution.

I also believe that it is simply better policy to leave broadcasters
with discretion to define and implement their public interest
programming, especially local programming. Broadcasters have every
reason to serve their local communities and, if they do not meet that
challenge, they will go out of business. Ultimately, it is the
broadcaster who seeks and finds the local public interest. To my mind,
that is a \"public interest\" standard that has worked well. Indeed I am
quite skeptical of government's ability to substitute its judgment for
the broadcasters in order to "help \[broadcasters\] serve their
communities better and more fully.[^114] ^7^

**III. The Wrong Direction**

Fundamentally, the NOI is out-of-step with today's market and regulatory
landscape. In an age where Americans receive information from an
increasing diversity of sources, including cable television and the
Internet, it seems increasingly anachronistic to saddle broadcasters
with additional unique regulatory burdens. Even without such diversity,
in a purportedly deregulatory era at the Commission, vast new
obligations on broadcast licensees untethered to any technological
change seems bizarre. Although I am heartened that this is only an NOI,
the mere presence of these notions troubles me greatly.

The primary rationale for broadcasters' public interest obligations has
been the theory that broadcast spectrum is a peculiarly scarce
resource.[^115] Absent spectrum scarcity, however, the justification for
affording broadcasters less First Amendment protection than persons
engaged in other modes of communication becomes difficult to discern. As
I explained in the Biennial Review of Mass Media Ownership Rules, I
believe that the Commission must review the empirical basis of
\"spectrum scarcity\" in that proceeding. Should we conclude in that
docket that spectrum scarcity is no longer viable as a factual matter,
then the instant effort to engage in additional regulation will be
highly problematic in constitutional terms[^116] ^9^

Even beyond the questionable legitimacy of the scarcity rationale, the
NOI seems to signal a willingness by the Commission to return to the
highly regulatory policies of the past to achieve tangential policy
goals. For example, in the 1980s we eliminated our ascertainment
requirements as an unnecessary burden on broadcasters[^117] ^10^ Yet
this NOI describes enhanced disclosure requirements including that
"digital TV broadcasters take steps to distribute public interest
information more widely, through newspapers and websites.[^118] ^11^ Now
broadcasters would apparently not only be forced to use their own
mediums to advance general public policy goals, but also required to
spend funds on other media. Apparently intoxicated by the opportunity
presented by the NOI, the majority seems to have imposed no limits on
"goodies" to be extracted from broadcasters for their DTV spectrum.

The NOI also fails to acknowledge the current critical stage of the
broadcast industry. The industry faces many difficult and expensive
challenges in moving into the digital age. The Commission should focus
its attention on maximizing the public benefits from the promises of
digital broadcasting, not creating new regulatory burdens that may slow
down that process[^119] ^12^

**IV. Dancing to the Executive Branch's Tune?**

Finally I would like to voice my discomfort with the unfortunate timing
of this item and the prominent role given in the NOI to the President's
Advisory Committee on the Public Obligations of Digital Television
Broadcasters (Advisory Committee). I know that some of my fellow
Commissioners have supported many of the proposals in the Notice for a
very long time and have supported Commission action to further those
policies. I fear the Executive Branch's actions may undermine my fellow
Commissioners' policy goals.

The Advisory Committee, chosen by the President, produced a thorough and
interesting report on DTV. Yet regardless of its merit, I see no basis
for the FCC to be "guided by" this Report[^120] ^13^ As an agency we are
not designed to be beholden to the Administration. To the contrary, we
are designed to be independent. As such, the Administration's policy
wish list is entitled to no greater attention than that of any other
party to our proceedings. Indeed, where Congress wishes us to give
executive branch views special weight, it says so directly[^121] ^14^ By
ceding guidance of this NOI to the Administration, we undermine the very
core of our mission as an agency.

Our independent status is also undermined by the appearance that this
NOI is being issued at the behest of the Executive Branch. Many of these
public interest proposals for DTV have been floating around the agency
for years. Indeed, the Fifth Report and Order calling for the initiation
of this inquiry was released on April 21, 1997[^122] ^15^ Even the
foundational documents cited by the Notice are over sixth months old.
The Advisory Committee Report itself was filed on December 18, 1998. The
People for Better TV petition was filed on June 3.

However, a few weeks ago we received a letter from the Vice President
urging the Commission "to begin . . . addressing the following four
issues in public proceedings: the need for higher quality political
discourse, disaster warnings in the digital age, disability access to
digital programming, and diversity in broadcasting.[^123] ^16^ Today's
NOI addresses each of those four areas. The timing of this Notice
creates the unfortunate appearance that we are acting at the direction
of the Administration.

\* \* \* \* \*

I look forward to reviewing the materials filed in this NOI. It is my
hope that, once the record is complete, we will pull away from the more
questionable proposals and focus on our mission: to translate our
existing public interest mandates into the DTV age. Due to the scope of
the Notice, I

nonetheless dissent in part from this item.

**CONCURRING STATEMENT OF COMMISSIONER MICHAEL K. POWELL**

*Re: Notice Of Inquiry, In the Matter of Public Interest Obligations of
TV Broadcast Licensees*

Although I join with my fellow Commissioners today in adopting this
Notice of Inquiry, I do so with the concerns and reservations outlined
in this statement.

As an initial matter, I am unpersuaded that the time is ripe for this
Notice of Inquiry (NOI). Undoubtedly, there are important questions
concerning the application of existing public interest obligations to
the new digital medium. Digital transmission affords the opportunity and
flexibility to offer HDTV, several standard DTV channels, ancillary
services and any combination of them all. These new possibilities raise
questions as to what facet of a multidimensional offering the public
interest duty runs. Yet, we are at the very preliminary stages of the
digital transition, and it is far from clear what form new services will
take in the digital era. While I applaud the uncustomary effort to get
far in front of the curve, it seems to me premature to attempt to fix
public interest obligations to a service that has yet to blossom. The
wiser course would have been to initiate this inquiry at a time when we
understand more about the proposed or likely applications of digital
television so our proposal would bear some plausible nexus to the
service itself, rather than its potential.

I am reminded of the designers of the Empire State Building in New York
City, who designed a building that, at the time, was the tallest
man-made structure on the planet. In designing the building, the
designers took into account features that might be needed for such a
world-class structure. One of the most visionary features was a mast for
mooring dirigibles atop the Empire State Building that would be used by
dirigibles carrying passengers visiting the City. Needless to say, mass
transit by dirigible never came to pass, but its prospects were well
anticipated by the designers of the building. I have some reservation
that some of the proposals floated in the Notice of Inquiry may one day
suffer the same fate as the Empire State Building\'s dirigible mast.

Further, as a fundamental matter, I question why the mere use of a
digital medium rather than an analog one justifies *new* public interest
obligations, particularly ones of the breadth and scope envisioned in
this NOI. Underlying many of these proposals seems to be the supposition
that we gave broadcasters valuable spectrum for free, and thus we want
payment in the form of new obligations. Yet, the government had the
option to make broadcasters pay for their spectrum, and chose not to I
assume because it believed the "public interest" was served by advancing
free over-air-television. Thus, I recoil somewhat from the view that the
transition to digital (and its putative commercial value to
broadcasters) justifies consideration of new and expansive public
interest duties.

Moreover, I believe that as we undertake this inquiry we have a solemn
obligation to evaluate honestly the extent to which scarcity can still
justify greater intrusion on broadcasters' First Amendment rights. It is
ironic to me that as we enter the digital age of abundance and tout its
myriad opportunities for more information through more outlets, we
simultaneously propose greater public interest obligations that infringe
upon speech, justified on the crumbling foundation of scarcity.
Something must give.

Finally, this item seeks comment on a vast menu of proposals loosely
aggregated under the heading of "political discourse." In their various
iterations, these proposals contemplate the Commission requiring
broadcasters to provide time for "candidate-centered discourse" or other
types of air time under the mantle of the public interest standard. I
have made no secret of my views concerning the appropriateness of the
Commission initiating an inquiry into free air time for political
candidates, without specific direction from Congress[^124] ^1^ The
Commission here avowedly promises not to propose such rules or polices,
however, but only to initiate public debate on "whether, and how,
broadcasters' public interest obligations can be refined to promote
democracy and better educate the voting public." In light of this
promise, and because I do not make a habit of dissenting on the
initiation of inquiries generally, I have not dissented on this portion
of the item.

I fully recognize that the expense of political campaigns, particularly
broadcast air time, has a direct impact on democracy by affecting those
who can run for and win political office. It may very well be the case
that digital transmission technology holds promise to greatly reduce
these expenses in a way that does not unduly interfere with the reasoned
editorial and business judgments of broadcasters. Yet, putting aside the
question of our authority, I feel strongly that a federal agency of
un-elected officials should not on its own initiative tread in an area
that may fundamentally affect the electoral process. Such modification
or reform should come from the people through their duly elected
representatives in Congress. It is even more troubling that an agency
would pursue such questions, when the issue has been raised and debated
by the Congress, but has to date been rejected, as is the case with this
bevy of issues. Such action risks opening a back door to the legislative
and electoral process. That said, to the extent the inquiry will develop
useful information that proves useful to the legislature's
consideration, I am unopposed.

For the foregoing reasons, I concur in the Notice of Inquiry.

**SEPARATE STATEMENT OF COMMISSIONER GLORIA TRISTANI**

*In the Matter of Public Interest Obligations of TV Broadcast Licensees,
Notice of Inquiry*

*. . . I will think of the public interest standard as a sort of
once-handsome thoroughbred, so abused and neglected that it has finally
broken down in the middle of the track. Perhaps we can take it back to
the paddock in the hope that, with care and love, it can recover -- or
at least produce offspring that recall the beauty of the original. If
not, let us simply put the poor beast out of its misery once and for
all.*

*Commissioner Ervin S. Duggan, 8 FCC Rcd at 5340 (1993)*

This proceeding is long overdue. The public interest standard \-- the
bedrock obligation of those who broadcast over the public airwaves \--
has fallen into an unfortunate state of disrepair over the years. It's
time to put up scaffolding and get the restoration underway.

The most important aspect of the public interest standard is this: it's
the law. Congress imposed the public interest standard seventy years ago
and has never wavered in its insistence that it apply to every broadcast
licensee. Indeed, in the Telecommunications Act of 1996, Congress
expressly provided that the public interest standard will continue to
apply in the digital world. Those who believe that broadcast television
should be treated just like any other commodity ("a toaster with
pictures") should complain to Congress, not the FCC.

The difficulty, of course, is in defining the public interest. On its
face, the standard is broad and requires the Commission to exercise a
great deal of discretion. But simply because the task is difficult is no
excuse for shirking it. At this point, there are more questions than
answers, but there are principles that should guide our deliberations:

1\. The public interest standard must have *some* substantive meaning.
It cannot not simply be \"whatever interests the public.\" That is
simply an attempt to deprive the term of any real meaning. It also
assumes that Congress puts meaningless requirements in statutes. After
all, if a broadcaster\'s private interests always served the public
interest, Congress didn\'t have to say a word. Congress does not enact
meaningless or unnecessary language -- much less language that has been
as scrutinized and debated over the years as much as the public interest
standard.

2\. The public interest requirements should be specific. While Congress
gave the Commission broad and flexible authority to define the public
interest as technology and the needs of the public change, the actual
requirements should be as specific as possible. While some may claim
that the standard's vagueness gives too much power to the Commission to
impose wide-ranging requirements on licensees, just the opposite is
true. The standard's vagueness has not led to a standard that means
virtually anything, but to a standard that means virtually nothing.

3\. The public interest standard should be a \"safety net\" to protect
the public against those broadcasters who might be tempted to avoid
their obligations in the absence of a rule. The fact that many
broadcasters may be fulfilling their public interest obligations does
not make the standard unnecessary. It\'s like laws against speeding.
While most people drive at a safe speed regardless of whether there is a
speed limit or not, many others drive at unsafe speeds. Once a speed
limit is in effect, however, more people drive at a safe speed. And if
drivers know that there\'s a police car in the area ticketing speeders,
the incidence of speeding may fall to almost zero. The public interest
standard is the speed limit on the public airwaves. Most broadcasters
may voluntarily comply with these limits, even though they know that the
Commission hasn\'t been handing out many speeding tickets lately. It\'s
the lead-footed broadcasters who don\'t take their public interest
obligations seriously that we should be concerned about.

4\. The public interest standard should apply to *every* broadcast
station, not to the industry as a whole. If it\'s the bad actors that
we\'re concerned about, those broadcasters should not be able to
piggy-back on the efforts of others.

5\. The public interest standard should protect and enrich our children.
Children spend far more time with television than any other medium, and
the vast majority of that time is unsupervised[^125] ^1^ There is no
doubt that television exerts a great influence on their development and
well-being. We must do what we can to protect our children from material
that may harm them and to ensure that they have access to programming
that meets their particular needs.

6\. The public interest standard should promote diversity over the
public airwaves. That includes giving all segments of the community the
opportunity to participate in broadcasting, both as owners and as
employees responsible for the day-to-day decision-making.

7\. The public interest standard should promote an open and robust
debate on issues of public concern. As the Supreme Court has said on
more than one occasion, \"speech concerning public affairs . . . is the
essence of self-government.[^126] ^2^ The importance of television to
the democratic process cannot be overstated. A majority of Americans
still rely on television as their primary source of electoral
information[^127] ^3^

8\. The public interest standard does not countenance censorship. The
government should not decide which views we can and cannot hear. But it
is fully consistent with the First Amendment \-- indeed, it promotes
First Amendment values \-- for the public to be exposed to a wide range
of views on issues of public concern. The public is always better served
when it hears different viewpoints than when it hears only one side of
the story, whether that one side is the government\'s or the
broadcaster\'s.

9\. The public interest must be considered in the context of our other
proceedings considering the relationship of broadcasting to the public.
For instance, some will assert that the explosion in media outlets over
the past thirty years (e.g., cable, satellite, the Internet) means that
we should impose minimal, if any, public interest requirements on
broadcasters. The argument is that consumers are so awash in
substitutable media that it no longer makes sense to single out
broadcasters for special treatment. But in other proceedings, like
digital must-carry, we hear a completely different story. In digital
must-carry, the argument is that broadcasting still provides a unique
service, especially to the 30% of Americans who do not subscribe to
cable, and that because of this special role, broadcasting is entitled
to special treatment by the government. Both of these cannot be true.
Either broadcasting is special and worthy of special concern or it is
not.

In sum, today's proceeding is a welcome first step in reinvigorating the
public interest standard. Most broadcasters do a good job of serving the
public interest. But it would be nothing short of miraculous if they
*all* did. We owe it to the public, and we owe it to those broadcasters
who are carrying the full load, to better define and enforce the public
interest standard.

[^1]: *See, e.g.,* Roper Starch Worldwide, *America's Watching: Public
    Attitudes Toward Television* at 1-2 (1997) (stating that "television
    remain\[s\] Americans' primary and most credible source of news and
    information, as well as a source of information on important social
    issues" and that "\[n\]etwork television is still overwhelmingly the
    way that Americans choose to entertain themselves at home").

[^2]: *See, e.g.,* Henry J. Kaiser Family Foundation, *Kids and Media at
    the New Millenium* at 20 (Nov. 1999) (finding that children, on
    average, spend almost three hours a day watching television,
    compared to, for instances, twenty-one minutes using the computer,
    twenty minutes playing video games, or eight minutes on the
    Internet).

[^3]: 47 U.S.C. § 309(k). This public interest requirement goes back to
    the Radio Act of 1927, 44 Stat.1162, and was carried over by
    Congress in the Communications Act of 1934, 48 Stat. 1064.

[^4]: *National Broadcasting Co. v. United States*, 319 U.S. 190, 216
    (1943).

[^5]: 47 U.S.C. §§ 307(a), 309(a), 309(k), 310(d).

[^6]: 47 C.F.R. §§ 73.3526(a)(8) and (9) and 73.3527(a)(7). *See also*
    Deregulation of Radio, BC Docket No. 79-219, *Report and Order*, 84
    FCC 2d 968, 982 (1981).

[^7]: *See* 47 U.S.C. §§ 312(a)(7), 315; 47 C.F.R. § 73.1941 (equal
    opportunities); 47 C.F.R. § 73.1942 (candidate rates); 47 C.F.R. §
    73.1944 (reasonable access).

[^8]: Children's Television Act of 1990, Pub. L. No. 101-437, 104 Stat.
    996-1000, *codified at* 47 U.S.C. §§ 303a, 303b, 394.

[^9]: Policies and Rules Concerning Children's Television Programming,
    Revision, Revision of Programming Policies for Television Broadcast
    Stations, MM Docket No. 93-48, *Report and Order*, 11 FCC Rcd 10660
    (1996).

[^10]: 18 U.S.C. §1464; 47 C.F.R. § 73.3999.

[^11]: 47 C.F.R. Part 79.

[^12]: 47 C.F.R. § 73.2080. The United States Court of Appeals for the
    District of Columbia Circuit has declared the some of the
    Commission's EEO policies and rules unconstitutional, and remanded
    certain aspects of these policies and rules to the Commission for
    further consideration. *Lutheran Church-Missouri Synod v. FCC*, 141
    F.3d 344, 393 (1998). As indicated below, the Commission's EEO
    policies and rules are the subject of an ongoing proceeding.

[^13]: 47 C.F.R. § 73.1212.

[^14]: 47 C.F.R. § 73.670.

[^15]: *Fifth Report and Order*, 12 FCC Rcd at 18826, ¶ 42.

[^16]: 47 U.S.C. § 336(a). ("If the Commission determines to issue
    additional licenses for advanced television services, the Commission
    (1) should limit the initial eligibility for such licenses to
    persons that, as of the date of such issuance, are licensed to
    operate a television station or hold a permit to construction such a
    station (or both). . .").

[^17]: 47 U.S.C. § 336(d).

[^18]: Advanced Television Systems and Their Impact upon the Existing
    Television Broadcast Service, MM Docket No. 87-268, *Fifth Report
    and Order*, 12 FCC Rcd 12809, 12810-21811 (1997) (*Fifth Report and
    Order*).

[^19]: *Fifth Report and Order*, 12 FCC Rcd at 12830.

[^20]: *Fifth Report and Order*, 12 FCC Rcd at 12830.

[^21]: *Fifth Report and Order*, 12 FCC Rcd at 12830^.^

[^22]: *Fifth Report and Order*, 12 FCC Rcd at 12830^.^

[^23]: Exec. Order No. 13,038, 62 Fed. Reg. 12.065 (1997). The original
    executive order stated that the Committee would consist of not more
    than fifteen members, but subsequent executive orders ultimately
    amended that number up to twenty-five. *See* Exec. Order No. 13,062,
    62 Fed. Reg. 51,755 (1997); Exec. Order No. 13065, 62 Fed. Reg.
    55,329 (1997).

[^24]: *See* Advisory Committee on Public Interest Obligations of
    Digital Television Broadcasters, *Charting the Digital Broadcasting
    Future: Final Report of the Advisory Committee on the Public
    Interest Obligations of Digital Television Broadcasters* (1998)
    (Advisory Committee Report). The report is available at
    [www.ntia.doc.gov/pubintadvcom/pubint.htm](http://www.ntia.doc.gov/pubintadvcom/pubint.htm).

[^25]: Letter from Vice President Al Gore to William E. Kennard,
    Chairman, FCC, Oct. 20, 1999 (Vice President's Letter). A copy of
    this letter will be placed in the record of this proceeding.

[^26]: We do not seek comment on the Advisory Committee's
    recommendations that do not envision a role for the Commission.
    Thus, for example, we do not seek comment on the Advisory
    Committee's recommendations that the NAB prepare an updated Code of
    Conduct (recommendation #2), and that the Congress create enhanced
    and permanent funding for noncommercial broadcasting, and create a
    new 6 MHz channel for public broadcasting when the analog spectrum
    is returned to the government (subpart of recommendation #4).

[^27]: People for Better TV, Petition for Rulemaking and Petition for
    Notice of Inquiry (filed June 3, 1999) (PBTV Petition). A copy of
    this petition will be placed in the record of this proceeding.

[^28]: For example, the steering committee includes American Academy of
    Pediatrics, the Civil Rights Forum on Communications Policy,
    Communications Workers of America, Consumer Federation of America,
    League of United Latin American Citizens, NAACP, National Council of
    Churches, National Organization for Women and Project on Media
    Ownership.

[^29]: PBTV Petition at 3-7.

[^30]: PBTV Petition at 7-12.

[^31]: PBTV Petition at 12-15.

[^32]: PBTV Petition at 17-20.

[^33]: PBTV Petition at 20-21.

[^34]: Letter from People for Better TV to William E. Kennard, Chairman,
    FCC, Nov. 16, 1999 (PBTV Letter). A copy of this letter will be
    placed in the record of this proceeding.

[^35]: NAB, *Broadcasters Bringing Community Service Home: A National
    Report on the Broadcast Industry's Community Service* at 2 (April
    1998) (*NAB Report*). A copy of this report will be placed in the
    record of this proceeding.

[^36]: *FCC v. Pottsville Broadcasting Co*., 309 U.S. 134, 138 (1940).

[^37]: Summary of DTV Applications Filed, Nov. 10, 1999, available at
    [www.fcc.gov/mmb/vsd/files/dtvsum.html](http://www.fcc.gov/mmb/vsd/files/dtvsum.html)
    (noting that 83 DTV stations are on air with full facilities, and
    that another 25 are on air with special or experimental authority).

[^38]: *Fifth Report and Order*, 12 FCC Rcd at 12826, ¶ 42.

[^39]: *Fifth Report and Order*, 12 FCC Rcd at 12820, ¶ 28.

[^40]: *Fifth Report and Order*, 12 FCC Rcd at 12830, ¶ 50.

[^41]: PBTV Petition at 11.

[^42]: Advisory Committee Report at § III.5.

[^43]: Advisory Committee Report at § IV, Statement of Charles Benton,
    Part I (joined by 12 other members of Advisory Committee).

[^44]: 47 U.S.C. 336(d) (emphasis added).

[^45]: PBTV Letter at 2.

[^46]: PBTV Letter at 2. In 1997, pursuant to section 551 of the 1996
    Act, the broadcast and cable television and motion picture
    industries adopted a voluntary ratings system. The ratings, which
    identify the age group for which a particular program is appropriate
    and when the program contains violence, sexual content, suggestive
    or coarse language, are intended to provide parents with the
    information necessary to guide their children's television viewing.
    In 1998, the Commission found this ratings system acceptable and
    required television set manufacturers to include in certain new sets
    "V-Chip" technology that will screen programming based upon these
    ratings. *See* Section 551 of the Telecommunications Act of 1996,
    Video Programming Ratings, CS Docket No. 97-55, *Report and Order*,
    11 FCC Rcd 8232 (1998).

[^47]: Petition of Action for Children's Television (ACT) for Rulemaking
    Looking Toward Elimination of Sponsorship and Commercial Content in
    Children's Programming and the Establishment of a Weekly 14-Hour
    Quota of Children's Television Programs, Docket No. 19142,
    *Children's Television Report and Policy Statement*, 50 FCC 2d 1
    (1974).

[^48]: *Fifth Report and Order*, 12 FCC Rcd at 12821, ¶ 30.

[^49]: PBTV Petition at 5.

[^50]: 47 U.S.C. § 336(e).

[^51]: 47 U.S.C. § 336(b)(3).

[^52]: Advisory Committee Report at § III.4.

[^53]: Advisory Committee Report at § III.4.

[^54]: Revision of Programming and Commercialization Policies,
    Ascertainment Requirements, and Program Log Requirements for
    Commercial Television Stations, MM Docket No. 83-670, *Report and
    Order*, 98 FCC 2d 1076, 1091 (1984).

[^55]: Amendment of Part 73, Subpart G, of the Commission's Rules
    Regarding the Emergency Broadcast System, FO Docket Nos. 91-301,
    91-171, *Report and Order and Further Notice of Proposed
    Rulemaking*, 10 FCC Rcd 1786 (1994).

[^56]: Advisory Committee Report at § III.7.

[^57]: PBTV Letter at 4.

[^58]: Advisory Committee Report at § III.1.

[^59]: 47 C.F.R. §§ 73.3526, 73.3527.

[^60]: Advisory Committee Report at § III.1.

[^61]: Advisory Committee Report at § III.1.

[^62]: 47 C.F.R. § 73.3526(e). We note that we streamlined our public
    file rules in 1998 . *See* In the Matter of Review of the
    Commission's Rules Regarding the Main Studio and Local Public
    Inspection Files of Broadcast Television and Radio Stations, MM
    Docket No. 97-138, *Report and Order*, 13 FCC Rcd 15691 (1998)
    (*Public File Report and Order*).

[^63]: Revision of Programming and Commercialization Policies,
    Ascertainment Requirements, and Program Log Requirements for
    Commercial TV Stations, MM Docket No. 83-670, *Report and Order*, 98
    FCC 2d 1076 (1984) (*TV Deregulation Order*), *recon. denied*, 104
    FCC 2d 358 (1986), *rev'd in part, ACT v. FCC*, 821 F.2d 741 (D.C.
    Cir. 1987). The ascertainment requirements contained detailed
    methodologies for ascertaining the problems, needs, and interests of
    a broadcaster's community, some of which were to be addressed by
    programming.

[^64]: *Public File Report and Order*, 13 FCC Rcd at 15714-15715, ¶ 53.

[^65]: Advisory Committee Report at § III.7.

[^66]: Advisory Committee Report at § III.3.

[^67]: *NAB Report*.

[^68]: *See* Comments of Media Access Project at 20-32 (filed Nov. 20,
    1995 in MM Docket No. 87-268); Reply Comments of the Benton
    Foundation at 6-10 (filed Feb. 1, 1996 in MM Docket No. 87-268).

[^69]: In April 1998, the Media Access Project and the Benton Foundation
    issued a report titled, "What's Local about Local Broadcasting?"
    that surveyed stations in selected markets regarding the amount of
    local public affairs programming aired weekly. We will place a copy
    of this report in the record of this proceeding.

[^70]: 47 U.S.C. § 613.

[^71]: PBTV Petition at 20.

[^72]: PBTV Letter at 3. PSAs funded by the federal government already
    must be close captioned pursuant to the Americans with Disabilities
    Act. 47 U.S.C. § 611.

[^73]: PBTV Letter at 3.

[^74]: Advisory Committee Report at § III.8.

[^75]: Closed Captioning and Video Description of Video Programming,
    Implementation of Section 305 of the Telecommunications Act of 1996,
    Video Programming Accessibility, MM Docket No. 95-176, *Report and
    Order*, 13 FCC Rcd 3272 (1997), *recon. granted in part and denied
    in part*, 13 FCC Rcd 19973 (1998).

[^76]: 47 C.F.R. § 79.1(b)(1).

[^77]: 47 C.F.R. § 79.1(b)(2). Broadcasters that captioned more than 75%
    of \"pre-rule\" programming during the first six months of 1997 must
    at least maintain the percentage they captioned during that period.
    47 C.F.R. § 79.1(b)(3).

[^78]: 47 C.F.R. § 79.1(c).

[^79]: 47 C.F.R. § 79.1(d).

[^80]: Closed Captioning Requirements for Digital Television Receivers,
    ET Docket No. 99-254, *Notice of Proposed Rulemaking*, FCC 99-180
    (released July 15, 1999).

[^81]: Closed Captioning and Video Description of Video Programming,
    Implementation of Section 305 of the Telecommunications Act of 1996,
    Video Programming Accessibility, MM Docket No. 95-176, *Report*, 11
    FCC Rcd 19214 (1996). *See also* Annual Assessment of the Status of
    Competition in the Markets for the Delivery of Video Programming, CS
    Docket No. 97-141, *Fourth Annual Report*, 13 FCC Rcd 1034,
    1163-1170 at ¶¶ 258-271 (1998).

[^82]: Implementation of Video Description of Video Programming, MM
    Docket No. 99-339, *Notice of Proposed Rulemaking*, FCC 99-353
    (released Nov. 18, 1999) (*Video Description Notice*).

[^83]: 47 U.S.C. § 309(j)(4)(C).

[^84]: Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding for Commercial Broadcast and Instructional
    Television Fixed Service Licenses, MM Docket No. 97-234,
    Reexamination of the Policy Statement on Comparative Broadcast
    Hearings, GC Docket No. 92-52, Proposals to Reform the Commission's
    Comparative Hearing Process to Expedite the Resolution of Cases, GEN
    Docket No. 90-264, *First Report and Order*, 13 FCC Rcd 15920,
    15994-15995 at ¶ 189 (1998) (*Competitive Bidding First Report and
    Order*), *recon*., 14 FCC Rcd 8724 (1999)

[^85]: Public Notice, *Policy Statement on Comparative Broadcast
    Hearings*, 1 FCC 2d 393, 394 (1965).

[^86]: Amendment of the Commission's Rules to Allow the Selection from
    Among Certain Competing Applications for Using Random Selection or
    Lotteries Instead of Comparative Hearings, Gen. Docket No. 81-768,
    *Second Report and Order*, 93 FCC 2d 952, 973-977 at ¶¶ 59-70
    (1983).

[^87]: *See Competitive Bidding Report and Order*, 13 FCC Rcd at 15994,
    ¶ 188 and n.224.

[^88]: *Lutheran Church-Missouri Synod v. FCC*, 141 F.3d 344 (1998).

[^89]: Review of the Commission's Broadcast and Cable Equal Employment
    Opportunity Rules and Policies, MM Docket No. 98-204, Termination of
    the EEO Streamlining Proceeding, MM Docket No. 96-16, *Notice of
    Proposed Rulemaking*, 13 FCC Rcd 23004 (1998).

[^90]: Broadcasting Industry Announces Minority Investment Fund, NAB
    Press Release, Nov. 3, 1999, available at www.nab.org.

[^91]: FCC New Release, FCC Chairman Applauds Media Companies'
    Commitment to EEO Principles (July 30, 1998).

[^92]: PBTV Letter at 4.

[^93]: Advisory Committee Report at § III.9.

[^94]: Advisory Committee Report at § III.9.

[^95]: *See, e,g.,* Licensee Responsibility as to Political Broadcasts,
    15 FCC 2d 94 (1968).

[^96]: *Arkansas Educational Television Commission v. Forbes*, 118 S.Ct.
    1633, 1640 (1998).

[^97]: *See supra* note 35.

[^98]: *NAB Report* at 3.

[^99]:  *See* Requests of Fox Broadcasting Company, Public Broadcasting
    Service, and Capital Cities/ABC, Inc. for Declaratory Rulings,
    *Declaratory Ruling*, 11 FCC Rcd 11101 (1996); A.H. Belo Corp. for
    Declaratory Ruling, *Staff Ruling*, 11 FCC Rcd 12306 (MMB 1996).

[^100]: Joint Report of the Media Access Project and Benton Foundation,
    *What's Local About Local Broadcasting?* at 1 (Apr. 1998).

[^101]: Advisory Committee Report at § III.6(b).

[^102]: President Clinton has called upon the Commission "to develop
    policies, as soon as possible, which ensure that broadcasters
    provide free and discounted airtime for candidates to educate
    voters." Letter from President Clinton to Chairman William E.
    Kennard, Feb. 5, 1998. Seventy-two members of the United States
    House of Representatives and eleven United States Senators have
    urged us to propose regulations providing for free or reduced rate
    air time for candidates. Forty-two Members of the United States
    House of Representatives signed Rep. Tierney\'s February 19, 1998
    letter to President Clinton, supporting the President\'s request
    that the Commission propose regulations providing for free or
    reduced rate time for candidates. In addition, thirty Members of the
    House of Representatives signed Rep. Slaughter\'s and Rep. Bonior\'s
    June 4, 1997 letter to the Commission and four more supplemental
    signatures were added subsequently. The June 4 letter asks the
    Commission to conduct an inquiry into what \"additional public
    interest responsibilities\" should accompany the expanded rights of
    broadcasters \"in a digital age;\" they also specifically urged the
    Commission to focus on \"the proposals for licensees to provide free
    broadcast air time to candidates, as advocated by Members of
    Congress, broadcast executives like Rupert Murdoch and Barry Diller,
    and respected journalists such as Walter Cronkite and David
    Broder.\" Id. On June 13, 1997, eleven Senators, led by Senator Dick
    Durbin, sent a similar letter requesting that the Commission solicit
    and examine free time proposals as a method of facilitating campaign
    finance reform.

[^103]: Advisory Committee Report at § IV, Statement of Charles Benton
    (joined by 12 other members). In addition, the majority recommends
    that the Commission consider whether political parties should
    administer any of the airtime and whether it should specify a scheme
    to administer the free time. The majority also recommends that the
    Commission give broadcasters discretion over the format of candidate
    appearances, with a few exceptions.

[^104]: Petition for Rule Making filed by Henry Geller, Common Cause,
    Benton Foundation, American Association of Retired Persons, Center
    for Responsive Politics, Honorable Dick Clark, Democratic Leadership
    Council, Public Citizen, and Honorable Lionel Van Deerlin (filed
    Oct. 21, 1993) (Geller Petition).

[^105]: Geller et al. also asked the Commission to require radio
    stations to provide political candidates six minutes per day of free
    airtime, with one of these minutes required to be in "drive time."

[^106]: Various members of Congress disagree. On February 27, 1998,
    seventeen members of Congress, including Rep. Billy Tauzin, Chairman
    of the U.S. House of Representatives Subcommittee on
    Telecommunications, sent a letter to Chairman Kennard to "express
    our concern with a possible attempt by the Federal Communications
    Commission to proceed beyond its mandated authority provided by
    Congress by attempting to issue an order granting political
    candidates free commercial time for televised broadcasts." See also
    Letter from Sen. Don Nickles, Assistant Majority Leader, U.S.
    Senate, to William Kennard, Chairman, FCC, Feb. 5, 1998; Letter from
    Rep. John D. Dingell, Ranking Member, U.S. House of Representatives
    Committee on Commerce, to William E. Kennard, Chairman, FCC, Feb. 4,
    1998.

[^107]: Advisory Committee Report at § III.6(c); Vice President's Letter
    at 2.

[^108]: ^.^1 See NOI ¶ 6.

[^109]: ^"^2 See NOI ¶ 4.

[^110]: 3 Putting aside the scope of our statutory authority, it is also
    not clear that such a requirement would be constitutional. *See,
    e.g,* Lillian R. BeVier, *Is Free Time for TV Candidates
    Constitutional?* (AEI 1998); Rodney A. Smolla, *Free Air Time for
    Candidates and the First Amendment* (The Media Institute 1998).

[^111]: ^\"^4 *FCC v. Midwest Video*, 440 U.S. 689, 708 (1979)(quoting
    *United States v. Southwestern Cable Co.*, 392 U.S. 157, 178
    (1968)). It seems to me that the essential aim of the current
    proposal is not necessarily to promote goals directly related to
    broadcasting but rather to redress the perceived problem of
    escalating campaign costs and the public\'s attendant opinion of the
    influence of money on politics. The proposal\'s relation to
    broadcasters is really an incidental one: broadcasters provide a
    convenient means to achieving the posited governmental end \--
    decreasing the influence of money in politics \-- but they are not
    in themselves part of the problem at which the proposal is aimed.
    Mandating "free" television \-- when section 312(a)(7) expressly
    provides broadcasters with a choice between the provision of free
    and paid time and when section 315 guarantees political candidates
    \"equal opportunities\" but \"no more,\" *Kennedy v. FCC*, 636 F.2d
    172 176 (D.C. Cir. 1980), as well as air time at the \"lowest unit
    charge\" not free of charge --simply disregards the overall
    statutory scheme. Such an approach would violate the
    well-established maxim that statutes should not be read so as to
    render other parts superfluous. *See* *United States v. Menasche*,
    348 U.S. 528, 538‑539 (1955)).

[^112]: ^"^5 NOI ¶ 31.

[^113]: ^\"^6 *Banzhaf v. FCC*, 405 F.2d 1082, 1095 (D.C. Cir. 1968)
    (emphasis added).

[^114]: ^"^7 NOI ¶ 14.

[^115]: ^8^Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).

[^116]: ^.^9 Even prior to the pervasive availability of the Internet,
    there was no scarcity of criticism of the lessened First Amendment
    protections afforded broadcasters based on the discrete amount of
    spectrum available. *See* Separate Statement of Commissioner Harold
    Furchtgott-Roth, *In the Matter of Review of the Commission\'s
    Regulations Governing Television Broadcasting, MM Docket No. 91-221;
    and in the Matter of Television Satellite Stations Review of Policy
    and Rules, MM Docket No. 87-8* (Aug. 5, 1999); Michael K. Powell,
    \"Willful Denial and First Amendment Jurisprudence,\" Speech
    delivered to the Media Institute, Washington, D.C. (April 22, 1998);
    *Action for Children's Television v. FCC*, 58 F.3d 654, 670-683
    (1995)(Chief Judge Edwards Dissenting)("And with the development of
    cable, spectrum-based communications media now have an abundance of
    alternatives, essentially rendering the economic scarcity argument
    superfluous."); *Telecommunications Research & Action Ctr. v. FCC*,
    801 F.2d 501, 508-09)(D.C. Cir. 1986), *cert. denied*, 482 U.S. 919
    (1987); Lucas Powe, American Broadcasting and the First Amendment
    197-209 (1987); Matthew Spitzer, Seven Dirty Words and Six Other
    Stories 1013-1020 (1986)

[^117]: ^.^10 *Revision of Programming and Commercialization Policies,
    Ascertainment Requirements, and Program Log Requirements for
    Commercial TV Stations*, MM Docket No. 83-670, Report and Order, 98
    FCC 2d 1076 (1984), *recon. denied*, 104 FCC 2d 358 (1986), *rev'd
    in part,* *ACT v. FCC*, 821 F.2d 741 (D.C. Cir. 1987).

[^118]: ^"^11 NOI ¶ 15.

[^119]: ^.^12 For example, any delay in digital deployment could
    correspondingly hold up efforts to use the spectrum for Channels
    60-69 for other public interest purposes.

[^120]: ^.^13 The NOI has even put forth ideas that did not garner the
    full support of the Advisory Committee. NOI ¶ 34.

[^121]: ^.^14 See 47 U.S.C. § 271 (d)(2)(a)(requiring the FCC to give
    "substantial weight" to comments filed by the Attorney General).

[^122]: ^.^15 *Advanced Television Systems and Their Impact upon the
    Existing Television Broadcast Service*, MM Docket No. 87-268, Fifth
    Report and Order, 12 FCC Rcd 12809 (April 21, 1997).

[^123]: ^"^16 Letter from Vice President Al Gore to William E. Kennard,
    Chairman, FCC Oct. 20, 1999).

[^124]: ^.^1 Remarks of Commissioner Michael K. Powell before The
    Freedom Forum, April 27, 1998. The full text of these remarks is
    available on the Commission's website
    \<HREF=\"http://www.fcc.gov/Speeches/Powell/spmkp809.html\"\>. Press
    Statement of Commissioner Michael K. Powell Regarding Free Time for
    Candidates, January 28, 1999. The full text of this press statement
    is available on the Commission's website
    \<HREF=\"http://www.fcc.gov/Speeches/Powell/Statements/stmkp802.html\"\>.

[^125]: ^.    ^1*Kaiser Family Foundation Report* (1999) (finding that:
    (1) on average, children watch two hours and forty-six minutes of
    television a day, compared to 48 minutes spent listening to CD's or
    tapes, the second most popular media activity; and (2) 8-18
    year-olds watch television without their parents 95% of the time,
    while 2-7 year-olds watch without their parents 81% of the time).

[^126]: ^\"    ^2*CBS v. FCC*, 453 U.S. 367, 395 (1981), quoting
    *Garrison v. Louisiana*, 379 U.S. 64, 74-75 (1964).

[^127]: ^.    ^3*Arkansas Ed. Television Commission v. Forbes*, 523 U.S.
    666 (1998).