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 *Pages 1--510 from  n:\utility\503800267\5006314258\5006314258.pdf*
 Citation  65  FR  4211-  01 
 2000  WL  57806  (F.  R.)  (Cite  as:  65  FR  4211) 


 FOR  EDUCATIONAL  USE  ONLY  c 
 Search  Result  Rank(  R)  1  of  25 
 Page 


 Databas' 


 PROPOSED  RULES 
 FEDERAL  COMMUNICATIONS  COMMISSION 
 47  CFR  Part,  73  --  v 
 [MM  Docket  No. 
 Public  Interest  Obligations 
 Wednesday, 


 99-  360  FCC  99-  3901  I 
 of  Television  Broadcast  Licensees 
 January  26,  2000 
 "4211  AGENCY:  Federal  Communications  Commission. 
 ACTION:  Notice  of  Proposed  Rulemaking. 
 SUMMARY  :  This  document  solicits  comments  on  how  broadcasters  can  best  serve  thf  public  interest  as  they  transition  to  digital  transmission  technology. 
 The  document  is  guided  by  several  proposals  the  Commission  has  received  and  other 


 recommendations  that  have  been  made  in  recent  years. 


 DATES:  Comments  are  due  on  or  before  March  27,  2000;  before  April  25,  2000.  reply  comments  are  due  on  o 


 (1. 
 ADDRESSES:  Federal  Communications  Commission,  445  12th  Street,  Room  TW-  A306,  SW,  Washington,  DC  20554. 


 FOR  FURTHER  INFORMATION  CONTACT:  Eric  Bash,  Policy  and  Rules  Division,  Mass  Media  Bureau  (202)  418-  2130,  TTY  (202)  418-  1169. 
 SUPPLEMENTARY  INFORMATION:  This  is  a  summary  of  the  Commission's  Notice  of  Inquiry  ("  NOI"),  FCC  99-  390,  adopted  December  15,  1999; 
 released  December  20,  1999.  The  full  text  of  the  Commission's  NO1  is  available  for  inspection  and 


 copying  during  normal  business  hours  in  the  FCC  Dockets  Branch  (Room  TW-  A306),  445  12  St.  SW,  Washington,  DC. 
 The  complete  text  of  this  NO1  may  also  be  purchased  from  the  Commission's  copy  contractor,  International  Transcription 


 Services  (202)  857-  3800,  1231  20th  St.,  NW,  Washington,  DC  20036. 
 Synopsis  of  Notice  of  Inquiry 
 I.  Introduction 
 1.  Television  is  the  primary  source  of  news  and  information  to  Americans,  and  provides  hours  of  entertainment  every  week. 
 In  particular,  children  spend  far  more  time  watching  television  that  they  spend  with  any  other  type  of  media. 


 Those  who  broadcast  television  programming  thus  have  a  significant  impact  on  society. 


 airwaves,  Given  the  impact  of  their  programming  and  their  use  of  the  public  broadcasters  have  a  special  role  in  serving  the  public. 


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 seventy  years,  broadcasters  have  been  required  by  statute  to  serve  the  "public  interest,  convenience,  and  necessity."  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.  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. 
 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. 
 Broadcasters  must  also  comply  with  statutory  political  broadcasting  requirements  regarding  equal  opportunities,  charges  for  political  advertising,  and  reasonable 
 access  for  federal  candidates.  In  addition,  television  broadcasters  must  provide  children's  educational  and  informational  programming  under  the 
 Children's  Television  Act  of  1990.  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.  Similarly,  broadcasters  also  have  obligations  regarding  closed 
 captioning,  equal  employment  opportunity,  sponsorship  identification,  and  advertisements  during  children's  programming. 
 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  l'multicastl'  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.  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.  Congress  stated  in  section  336  of  the  Communications  Act  that 
 "  [nlothing  in  this  section  shall  be  construed  as  relieving  a  television  broadcasting  station  from  its  obligation  to  serve  the  public  interest, 
 convenience,  and  necessity."  Likewise,  in  implementing  section  336  in  the  5th  Report  and  Order  in  the  DTV  proceeding  (62  FR  26966,  May  16,  1997),  the 
 Commission  reaffirmed  that  digital  TV  broadcasters  remain  public  trustees  and  must  serve  the  public  interest,  and  that  existing  public  interest  obligations 
 continue  to  apply  to  all  broadcast  licensees.  5.  The  Commission  also  indicated,  however,  that  "[  blroadcasters  and  the  public 
 are  also  on  notice  that  the  Commission  may  adopt  new  public  interest  rules  for  digital  television."  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 


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 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."  The  Commission  declined  to  resolve  the  *4212 
 issue  in  the  DTV  proceeding,  instead  choosing  to  issue  a  notice  to  consider  all  views  at  a  later  point. 
 6.  We  undertake  that  task  with  this  NOI.  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."  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.  On  October  20,  1999,  Vice  President  Gore  submitted  a  letter  to  Chairman  Kennard  asking  the 
 Commission  to  focus  on  several  of  the  Advisory  Committee's  recommendations  in  particular. 
 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.  People  for  Better  TV  also  includes  a  number  of  diverse  groups.  People  for  Better  TV  argues  that  the  Telecommunications  Act  of  1996  requires  the 
 Commission  to  determine  the  public  interest  obligations  of  DTV  broadcasters,  that  the  advent  of  DTV  requires  the  Commission  to  consider  public  interest 
 obligations  anew,  and  to  clarify  whether  existing  guidelines  apply,  and  that  both  broadcasters  and  the  public  need  a  basic  set  of  public  interest  standards. 
 The  group  contends  that  the  Commission  should  initiate  a  rulemaking  proceeding  to  determine  the  public  interest  obligations  of  digital  broadcasters.  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.  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. 
 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.  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  'Ia  supple  instrument"  designed  to  be  flexible  enough  to  accommodate  the  "dynamic  aspects  of  radio  transmission,"  and 


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 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.  These  broadcasters,  as  well  as  all  television  licensees  upon  the  conversion  to  DTV,  have  the 
 flexibility  either  to  llmulticast,  'l  to  provide  HDTV,  or  to  "multiplexl'  DTV  programming  and  "ancillary  and  supplementary  services"  at  the  same  time.  Both 
 the  Act  and  the  Commission's  implementing  actions  make  it  clear  that  DTV  broadcasters  must  continue  to  serve  the  public  interest.  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."  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."  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? 
 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.  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.  We  seek  comment  on  these  approaches.  In  addition,  how  should  we  take  into  account  the  fact  that  DTV  broadcasters  can  choose  either  to  multicast 


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 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."  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  *4213  services,  which 
 might  include  data  transmission  for  schools.  In  addition,  PBTV  suggests  that  the  increased  information  capability  of  digital  technology  could  improve  the 
 current  voluntary  ratings  system.  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 
 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.  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,"  and  points  out  that  section  336(  a)  (2)  states  that  the  Commission  I'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."  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."  The  Advisory  Committee  Report  recommends  that  "[  blroadcasters  that 
 choose  to  implement  datacasting  should  transmit  information  on  behalf  of  local  schools,  libraries,  community-  based  organizations,  governmental  bodies,  and 
 public  safety  institutions."  The  Advisory  Committee  Report  suggests  that  "[  tlhis  activity  should  count  toward  fulfillment  of  a  digital  broadcaster's  public 
 interest  obligations,"  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. 
 Another  of  its  most  basic  obligations  in  responding  to  the  public's  informational  needs  is  to  air  emergency  information.  Technological  advances, 


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 including  digital  technology,  may  allow  broadcasters  to  fulfill  these  obligations  better.  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."  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."  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,  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."  The  Committee  also  recommends  that  digital  TV  broadcasters  take  steps  to  distribute  public  interest  information  more  widely, 
 through  newspapers  and  websites.  We  seek  comment  on  these  recommendations.  16.  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.  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  Advisory  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  198Os,  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. 


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 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.  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  *4214  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  "[  blroadcasters  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."  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  II[  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. 
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 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.  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.  They  also  express  the  concern  that  television  broadcasters  are  not  airing 
 a  sufficient  amount  of  public  interest  programming,  including  local  public  affairs  programming. 
 22.  We  invite  comment  on  this  debate.  Should  the  Commission  establish  more  specific  minimum  requirements  or  guidelines  regarding  television  broadcasters' 
 public  interest  obligations.  3  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.  3  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  to  make  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  *  *  *  .I'  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.  Given  the 
 efficiencies  of  digital  technology,  DTV  broadcasters  will  be  able  to  llmulticast"  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."  The  group  specifically  suggests  that  a  "digital  broadcast  station  should  provide  closed  captioning  and  description  services  for 


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 the  blind  of  PSAs,  public  affairs  programming,  and  political  programming."  It  urges  that  "[  claptioning  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."  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." 
 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  *4215  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.  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,  and  to 
 caption  75%  of  "pre-  rule"  programming  by  2008.  Our  rules  also  require  broadcasters  to  pass  through  the  captioning  provided  by  program  suppliers, 
 unless  it  requires  reformatting.  Certain  types  of  programming  and  providers,  however,  are  exempt  from  these  requirements.  Should  the  Commission  impose 
 different  requirements  on  DTV  broadcasters.  7  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.  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),  and  recently  proposed  limited 
 rules  to  phase  video  description  into  the  marketplace.  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 


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 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  continue  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."  In  part,  to  fulfill  that  mandate,  we 
 offered  a  bidding  credit  to  new  entrants  in  our  recent  auction  of  broadcast  licenses.  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  'Ia  factor  of  primary  significance"  in  its  comparative  licensing  processes,  and  adopted 
 diversity  and  minority  "preferences"  in  certain  of  its  random  selection  processes.  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.  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.  However,  we  issued  a  Notice  of 
 Proposed  Rulemaking  (63  FR  66104,  December  1,  1998)  proposing  new  EEO  rules,  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.  In  addition,  many  broadcasters  have  made  voluntary  commitments  to  abide  by  equal  opportunity  principles,  whether  required  by  law  to  do  so  or  not. 
 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. 
 32.  The  Advisory  Committee  Report  states  that  l'[  d]  iversity  is  an  important  value  in  broadcasting,  whether  it  is  in  programming,  political  discourse, 
 hiring,  promotion,  or  business  opportunities  within  the  industry."  As  such,  it  recommends  that  "broadcasters  seize  the  opportunity  inherent  in  the  digital 
 television  technology  to  substantially  enhance  the  diversity  available  in  the 
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 television  marketplace."  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,  "4216  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,  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.  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."  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  NO1  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. 
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 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"),  in  the  1996  election  cycle  broadcasters  valued  the  time  they  voluntarily  devoted  to  political  campaigns  at 
 $148.4  million.  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.  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  Joint  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.  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.  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.  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.  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.  More 
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 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.  Geller  et  al.  contend  that  the  Commission's  public  interest  authority  extends  to  requiring 
 broadcasters  to  provide  time.  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. 
 IV.  Administrative  Matters 
 39.  Comments  and  Reply  Comments.  Pursuant  to  applicable  procedures  set  forth  in  ~~  1.415  and  1.419  of  the  Commission's  rules,  47  CFR  1.415  and  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  FR  24,121 
 (1998).  *4217  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  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, 


 Copr.  (C)  West  2000  No  Claim  to  Orig.  U.  S.  Govt.  Works 
13
 FOR  EDUCATIONAL  USE  ONLY  Page  14 
 65  FR  4211-  01  (Cite  as:  65  FR  4211,  f4217) 


 preferably  in  a  single  electronic  file.  In  addition,  comrnenters  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.  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  Arminta  Henry  at  (202)  4810-  0260,  TTY  (202)  418-  2555,  or 
 ahenry@  fcc.  gov.  45.  Ex  Parte  Rules.  Pursuant  to  the  provisions  of  47  CFR  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. 


 IV.  Ordering  Clause 
 46.  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. 
 [FR  DOC.  00-  1794  Filed  l-  25-  00;  8:  45  am] 
 BILLING  CODE  6712-  01-  P 
 65  FR  4211-  01,  2000  WL  57806  (F.  R.)  END  OF  DOCUMENT 


 Copr.  (C)  West  2000  No  Claim  to  Orig.  U.  S.  Govt.  Works 
14
 Cheri  Huffman  3439  Wayne  Rankin  Lane 
 Louisville,  Tennessee  37777 
 March  17,  2000 
 William  E.  Kennard 
 Chairman  Federal  Communications  Commission 


 445  12*  Street  SW  Room  8B-  201  H 
 Washington,  DC  20554 
 RE:  Public  interest  Obligations  of  Television  Broadcast  Licensees  47  CFR  Part  73 
 MM  Docket  No.  99-  360  FCC  99-  390 


 Dear  Chairman  Kennard: 
 I  am  certified  public  accountant  currently  in  my  second  year  of  law  school 
 at  the  University  of  Tennessee,  Knoxville.  I  am  commenting  on  the  proposed 
 rule  for  the  public  interest  obligations  of  television  broadcast  licensees  (MM 
 Docket  No.  99-  360)  as  a  component  of  an  administrative  law  class. 
 The  Federal  Communications  Commission  (FCC)  should  not  impose  new 
 or  additional  public  interest  obligations  on  digital  television  licensees  until  the 
 transition  to  digital  television  is  complete  and  the  operations  of  the  industry  are 
 firmly  established.  Broadcasters  already  face  an  unstable  environment  due  to 
 the  technical  and  economic  uncertainties  included  in  the  transition  to  digital 
 television.  The  current  public  interest  requirements  for  analog  television,  which 
 also  apply  to  digital  transmission,  will  adequately  serve  to  protect  the  publics 
 interest  until  the  digital  industry  is  fully  developed. 
15
 TECHNICAL  UNCERTAINTIES 
 The  technical  uncertainties  in  the  transition  to  digital  television  (DTV) 
 include:  1)  the  methods  that  licensees  will  use  to  broadcast,  2)  the  impact  that 
 cable  television  providers  will  have  on  the  provision  of  digital  service,  and  3)  the 
 timing  of  the  transition  to  DTV.  These  uncertainties  make  it  unreasonable  to 
 estimate  the  obligations  that  should  be  placed  on  broadcasters  prior  to  the 
 complete  transition  to  DTV.  Absent  a  strong  analysis  of  the  actual  benefits 
 and/  or  burdens  of  Dn/  on  broadcasters,  the  type  and  amount  of  new  or 
 additional  public  interest  obligations  can  not  be  sufficiently  appraised. 
 Broadcast  Methods 


 At  this  juncture,  the  methods  that  licensees  will  use  to  broadcast  is 
 unpredictable.  Whether  broadcasters  will  primarily  utilize  single-  signal  high 
 definition  broadcasting  or  multiple  channel  multiplexing  is  unknown.  This 
 variable  contributes  to  the  difficulty  of  adequately  estimating  the  profitability  of 
 digital  television. 
 With  respect  to  multiplexing,  the  Gore  Advisory  Commission  made  the 
 following  recommendation: 
 Once  digital  television  becomes  a  reality,  apply  a  two-  year  moratorium  to  provide  ample  opportunity  for  broadcasters  to 
 explore  options  in  the  marketplace.  Thereafter,  if  broadcasters 
 elect  to  multicast  and  in  so  doing  realize  a  substantial  increase  in 
 revenue,  Congress  or  the  FCC  should  apply  a  menu  of  options  to 
 multicasting  broadcasters.  2 


 The  recommended  options  included  either  a  monetary  fee  or  an  in-  kind  public 
 service  contribution. 


 2 
16
 Although  this  idea  has  merit,  the  subjective  elements  overshadow  the 
 basic  premise.  First,  the  Gore  Advisory  Commission  fails  to  provide  the  criteria 
 that  will  establish  DW  as  a  reality.  Second,  two  years  may  not  provide 
 sufficient  time  to  develop  the  stable  revenue  history  necessary  to  calculate  a 
 revenue-  based  fee  for  stations  that  choose  not  to  air  the  specified  public  interest 
 programming.  Third,  the  amount  necessary  to  constitute  a  substantial  increase 
 in  revenue  is  subject  to  considerable  interpretation.  Before  the  subjective 
 elements  of  the  Gore  Advisory  Commissions  recommendation  are  clarified, 
 broadcasters  should  first  have  ample  opportunity  to  explore  broadcasting 
 methods. 
 Impact  of  Cable 
 Imposing  public  interest  requirements  on  broadcasters  at  this  time  also 
 fails  to  recognize  the  potential  impact  of  cable  providers,  who  are  less  restricted 
 by  governmental  regulation.  3  Unfortunately,  the  likely  impact  of  cable  providers 
 on  digital  television  may  remain  unknown  for  some  time  because  cable  providers 
 and  consumer  electronics  manufacturers  have  yet  to  agree  on  many  DTV-  Cable 
 compatibility  issues4  The  minimal  amount  of  technical  standards  already 
 agreed  upon  came  only  after  the  FCC  threatened  immediate  rulemaking  on  the 
 technical  issues.    The  effect  of  cable  providers  on  the  revenues  and  market 
 share  of  television  broadcasters  could  significantly  alter  the  risks  and 
 opportunities  available. 
 The  pay-  or-  play  model  considered  by  the  Gore  Advisory  Commission 
 would  level  the  disproportionate  regulation  between  broadcasters  and  cable. 


 3 
 .-  -.  -  I__  .-._..  --  .----  ---.  .,  __.--.  .  I  ._..  __  ,--__-_--  ..-.  I__.  __..  l___  -..  .__  ~.- 
17
 Unfortunately,  that  proposal  was  emphatically  rejected  by  the  Advisory 
 Commission.  Until  the  consequences  of  cable  DTV  development  can  be 


 adequately  assessed,  the  FCC  should  not  attempt  to  set  regulations  in  an 
 unpredictable  environment. 
 Transition  Timing 
 All  stations,  except  the  Public  Broadcasting  Station,  are  required  to 
 broadcast  digitally  by  2006  unless  85  percent  of  the  broadcasters  communities 
 do  not  have  a  television  set  that  receives  digital  signals.  This  creates  a  flexible 
 deadline  that  could  delay  digital  broadcast  requirements  until  after  2010. 
 Consumers  may  be  reluctant  to  purchase  digital  televisions  until  broadcasters 
 have  provided  additional  DTV  programming.  Conversely,  broadcasters  may  be 
 reluctant  to  provide  additional  DW  programming  until  more  televisions  receive 
 the  broadcasts.  This  Catch-  22  has  the  ability  to  significantly  delay  the  transition 
 to  DTV.  Until  these  matters  are  addressed  and  resolved,  new  public  interest 
 requirements  only  add  an  additional  variable  to  an  already  chaotic  mix. 
 ECONOMIC  UNCERTAINTIES 
 Additional  public  interest  requirements  would  also  add  more  financial 
 demands  on  broadcasters  already  facing  an  uncertain  economic  future  with 
 digital  television.  The  extreme  capital  requirements  needed  for  the  transition,  in 
 combination  with  an  unconvinced  consumer  base  and  increased  programming 
 costs,  pose  huge  challenges  for  the  broadcasting  industry. 
 Equipping  a  local  television  for  digital  television  costs  between  three 
 million  and  ten  million  dollars.  7  During  the  transition  to  digital  television, 


 4 
18
 broadcasters  also  must  continue  broadcasting  in  analog.  One  of  the  risks 
 assumed  by  broadcasters  is  that  these  capital  expenses  will  be  offset  by  a 
 consumer  base  that  has  yet  to  materialize. 
 Prices  for  analog  television  decoders  begin  at  approximately  $650,  while 
 high-  definition  digital  televisions  start  at  $3,000  and  most  are  over  $5,000.8  The 


 premise  that  Americans  can  afford  to  pay  this  premium  in  return  for  enhanced 
 viewing  seems  dubious  at  best.  Although  manufacturers  expect  prices  for  the 
 television  units  to  drop  below  $3,000,  these  televisions  will  remain  out  of  the 
 price  range  of  most  families  until  their  prices  become  comparable  with  analog 
 sets.  In  essence,  the  broadcasters  are  investing  material  capital  sums  in 
 preparation  for  a  consumer  base  that  is  currently  undeveloped. 
 The  Gore  Advisory  Commission  recognized  that  the  production  costs 
 associated  with  digital  programming  are  IO  to  20  percent  higher  than  the  costs 
 required  for  analog  programming.  Therefore,  broadcasters  will  also  be  forced  to 
 absorb  an  increase  in  variable  costs  before  the  consumer  base  is  stabilized. 
 In  an  effort  to  offset  these  costs,  broadcasters  have  entered  into 
 underwriting  deals  with  electronics  manufacturers.  For  example,  CBS 
 agreements  with  Mitsubishi  and  Samsung  have  subsidized  specific  HDTV 
 broadcasts.  However,  the  future  of  this  type  of  programming  assistance  is 
 speculative.  Whether  or  not  these  underwriting  agreements  should  be 
 considered  in  assessing  the  burdens  placed  on  broadcasters  will  depend  on 
 whether  the  underwriting  subscriptions  continue  after  the  transition  to  DTV  is 
 complete. 


 5 
19
 ALTERNATIVE  PROPOSAL 
 I  propose  that  the  FCC  delay  any  new  or  additional  public  interest 
 requirements  for  broadcasters  until  the  transition  to  DTV  is  fully  complete  and 
 the  repercussions  of  any  additional  obligations  can  be  assessed  with  greater 
 accuracy.  The  information  received  from  this  Notice  of  Inquiry  (MM  Docket  No. 


 99-  360)  can  certainly  provide  future  assistance  in  formulating  public  concerns. 
 However,  to  truly  meet  the  publics  interest  the  FCC  should  focus  current  efforts 
 on  methods  to  ensure  that  the  transition  from  analog  is  as  smooth  as  possible. 
 Broadcasters  are  required  to  continue  to  transmit  in  analog  signals  until  at 
 least  2006.  During  the  transition,  broadcasters  should  continue  to  meet  existing 
 public  interest  requirements.  If  a  broadcaster  chooses  to  multi-  cast  during  the 
 transition,  the  existing  public  interest  requirements  should  be  met  on  the 
 broadcasters  primary  channel.  When  analog  reception  is  no  longer  a  viable 
 alternative  for  consumers,  the  DTV  market  will  be  forced  to  develop. 
 Broadcasters  will  no  longer  have  the  additional  expense  of  transmitting  on  two 
 frequencies,  and  the  total  capital  costs  associated  with  the  implementation  of 
 DTV  will  be  known. 
 Once  a  complete  transition  to  digital  has  occurred,  the  FCC  should  apply 
 the  two-  year  moratorium  suggested  by  the  Gore  Advisory  Commission  to  all 


 additional  public  interest  requirements.  At  the  end  of  this  interim  period,  the 
 adequacy  of  existing  public  interest  requirements  in  the  digital  format  can  be 
 assessed  from  a  current  perspective.  Broadcasters  will  have  had  the  chance  to 
 experiment  with  the  opportunities  provided  by  the  digital  medium  after  the 


 6 
20
 transition  responsibilities  have  concluded.  The  consumer  market  for  the  DW 
 should  be  stabilized,  and  all  consumers  will  have  the  need  as  well  as  the 
 opportunity  to  address  any  relevant  concerns.  At  the  current  time,  comments 
 from  consumers  are  incomplete  due  to  both  the  limited  number  of  digital 
 televisions  in  use  and  the  fact  that  most  consumers  continue  to  purchase  and 
 view  analog  televisions.  Postponing  any  regulations,  even  if  voluntary,  would 
 allow  more  thorough  input  into  the  process.  Until  that  time,  broadcasters  would 
 be  free  to  experiment  with  any  new  or  additional  public  interest  requirements 
 they  feel  necessary  to  maintain  their  public  trusteeship. 


 In  conclusion,  the  FCC  should  not  impose  new  or  additional  public 
 interest  obligations  on  DTV  licensees  until  the  technological  and  economic 
 uncertainties  facing  the  industry  are  resolved.  Once  a  complete  transition  to 
 DTV  and  a  two-  year  moratorium  have  occurred,  the  rulemaking  procedures 
 should  begin. 
 I  respectfully  request  that  the  FCC  consider  this  proposal  as  one  that 
 keeps  the  broadcasting  industry  from  absorbing  an  undue  burden  while 
 maintaining  the  public  interest  requirements  necessary  to  meet  the  broadcasters 
 public  trusteeship. 


 Sincerely, 


 Cheri  Huffman 
 7 
 -.^-  .l---...-.-(  -  -..  -  .  .  ,...  __  ^  .-.-..~,__  .  --,  l--  lll.  .._.-~-- 
21
   5  Report  and  Order  in  the  DTV  Proceeding,  60  Fed.  Reg.  26,966  (1997)  2  Final  Report  of  the  Presidents  Advisory  Committee  on  the  Public  Interest  Obligations  of  Digital 
 Television  Broadcasters  Report  (Dec.  18,  1998)  3  Dick  Wiley,  From  the  Desk  of..  .Dick  Wiley,  Communications  Today,  Feb.  7,  2000. 
 4  This  Weeks  News,  Television  Dioest,  Feb.  28,  2000.  5  Id. 
 6  Gigi  Sohn,  National  Center  for  Accessible  Media  (visited  Mar.  13,  2000) 
 chttp:/  Ewww.  wgbh.  org/  wgbh/  pages/  ncame/  dtv.  html~.  7  Rocky  Swift,  Florida  Television  Stations  Ready  for  2002  Switch  from  Analog  to  Digital9  Sun 


 Herald,  Mar.  2,  2000.  8ision  and  Video.  Special  Section.  TV  Now  (Your  guide  to  the  chokes  in  a  time  of  television 
 transition),  Consumer  Reports,  Dee,  1999,  at  12. 
   James  Morrow,  News  You  Can  Use;  Personal  Technology,  U.  S.  News  and  World  Report,-  Feb.  28,2000, 
 at  82.    Glen  Dickson,  CBS  nets  HD  Spotts  Deals,  Broadcastina  8  Cable,  Jan.  10,  2000,  at  52. 


 8 
22
 Administrative  Law:  Comment  to  F.  C.  C 
 Steve  Cox 
 414-  37-  9767 


 -...  .___.  l_._  l  I 
 __  __  -.  l--......-.-.-. 


 -  -  _  -  .  .._-_ 
 -- 
23
 Introduction 
 This  comment  is  in  response  to  the  F.  C.  C.  s  Notice  of  Proposed  Ruiemaking 
 dated  January  26,200O  (MM  Docket  No.  99-  360;  F.  C.  C.  99-  390;  65  FR  421  l),  entitled 
 Public  Interest  Obligations  of  Television  Broadcast  Licensees.  My  name  is  Steve  Cox 
 and  I  am  a  law  student  at  the  University  of  Tennessee.  I  am  currently  enrolled  in  a  class 
 on  Administrative  law  and  am  writing  to  you  as  part  of  an  assignment.  In  this  comment  I 
 will  discuss  proposals  for  new  requirements  as  they  would  relate  to  digital  broadcasters, 
 the  obligations  every  broadcaster  has  (or  should  have)  to  disclose  the  content  and 
 programming  they  transmit,  obligations  of  digital  broadcasters  as  they  relate  to  disaster 
 warnings,  and  every  broadcasters  minimum  public  interest  requirements.  Briefly,  I 
 believe  that  more  stringent  requirements  should  not  be  placed  on  digital  broadcasters  as 
 opposed  to  regular  broadcasters,  but  the  digital  broadcasters  should  have  to  comply  with 
 all  present  and  hereinafter  adopted  regulations  on  each  of  their  broadcast  streams.  I 
 believe  that  all  broadcasters  should  post  the  content  and  type  of  programming  they  are 
 broadcasting  on  their  website,  and  provide  a  vehicle  for  public  comment.  Furthermore,  I 
 believe  that  digital  broadcasters,  (if  economically  feasible)  should  provide  enhanced 
 disaster  warnings.  Finally,  I  encourage  the  Commission  to  define  its  minimum  public 
 interest  requirements  more  concretely. 


 I.  Application  of  New  Reauirements 


 First,  in  paragraph  five  of  the  NO1  the  Commission  indicated  that  [  blroadcasters 
 and  the  public  are  also  on  notice  that  the  Commission  may  adopt  new  public  interest  rules 


 1 
 -.  ___.  -_  _  ._-_--  -.  I...  ____  I..,__  .  _.-  __-.  --.  lll  _)  I  -- 
24
 for  digital  television.  This  statement  met  with  two  main  reactions.  The  tirst  claimed 
 that  the  new  rules  should  be  clearly  defined  and  commensurate  with  the  new 
 opportunities  provided  by  the  digital  channels  broadcasters  are  receiving.  .  .  .  The 
 second  viewpoint  exposed  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.  65  FR  4211,4212  (2000).  I  believe  the  proper  course  is 
 somewhere  in  between. 
 As  long  as  broadcasters  are  offering  the  same  services,  there  is  no  reason  to  issue 
 new  rules  and  regulations  simply  because  they  are  now  using  a  more  efficient  and  diverse 
 means  to  transmit  their  signals.  I  do  not  believe  we  should  succumb  to  the  notion  that 
 just  because  we  have  something  different  we  have  to  pass  new  regulations  and  standards. 
 So  in  one  sense,  I  see  no  reason  to  burden  digital  broadcasters  with  government 
 regulation  that  they  would  not  otherwise  have  to  deal  with.  Why  should  the  FCC  make  it 
 more  difficult  and  orrnerous  for  digital  broadcasters  to  comply  with  regulation?  What 
 purpose  does  that  serve? 
 By  the  same  token,  however,  digital  broadcasters  should  not  get  a  break  from  the 
 rules  because  they  find  a  more  efficient  way  to  broadcast.  Digital  broadcasters  should 
 not  be  allowed  one  signal  that  complies  with  the  Commissions  regulations  while  its 
 other  signals  are  free  from  any  and  all  requirements.  Therefore,  I  propose  that  if  a 
 broadcaster  chooses  to  multicast  (sending  out  multiple  signals  along  the  same  channel 
 allowing  the  customer  to  choose)  he  should  be  required  to  comply  with  all  Commission 
 regulations  on  all  signals.  In  effect,  he  should  commit  the  same  percentage  of  time, 


 2 
25
 money,  and  energy  to  public  interest  requirements  on  all  signals.  This  brings  me  to  my 
 second,  related  point. 
 Page  4212  of  the  NOI  states  in  part: 
 It  is  .  .  .  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  childrens  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  mulitcast?  Do 
 a  licensees  public  interest  obligations  attach  to  the  DTV  channel  as  a 
 whole  .  .  .  or  to  air  some  of  its  public  interest  programming  on  more 
 than  one  of  its  program  streams?  .  .  .  A  majority  of  the  members  of  the 
 Advisory  Committee  believe  that  the  FCC  should  prohibit  broadcasters 
 from  segregation  candidate-  centered  programming  to  separate  program 
 streams,  because  they  believe  that  would  violate  candidates 
 reasonable  access  and  equal  opportunities. 


 How  these  questions  are  answered  depend  on  which  theory  one  adheres  to  regarding  the 


 reason  for  regulation.  According  to  one  viewpoint,  the  regulations  provide  for  certain 
 information  to  be  made  available  to  the  public.  The  Commissions  rules  state  the  type  of 
 information  to  be  made  available  is  valuable  and  necessary.  Whether  or  not  the  public 
 uses  or  accesses  this  information  is  entirely  up  to  them.  The  point  is  that  every 
 broadcaster  has  a  duty  to  make  the  information  available.  According  to  this  viewpoint,  it 
 would  be  perfectly  acceptable  for  a  digital  broadcaster  to  broadcast  all  material  necessary 
 to  fulfill  the  requirements  as  directed  by  the  FCC  on  one  signal.  The  public  would  have 
 access  to  the  information  if  they  want  it,  and  if  they  do  not,  the  other  signals  will  be  free 
 to  broadcast  without  FCC  requirements. 
 According  to  the  second  viewpoint,  the  goal  of  the  regulations  mandating  the 
 access  to  public  information  is  to  make  sure  the  public  gets  the  information.  The 
 information  is  important.  Therefore  it  is  necessary  to  inform  people  using  rules  and 
 regulations  that  govern  the  broadcast  of  public  interest  information  because  they  would 


 3 


 -  ._-._.  ._.  .._-_.I  .-~I  -.  _I_  t_  lX--  l-.  l.^  ,.  _~  ~._-  - 
26
 not  otherwise  access  it.  Here,  digital  broadcasters  should  be  required  to  fulfill  public 
 interest  requirements  on  all  streams. 
 For  the  same  reasons  I  stated  in  my  first  point,  I  believe  digital  broadcasters 
 should  be  required  to  transmit  the  required  public  interest  information  on  all  broadcast 
 streams.  Allowing  a  digital  broadcaster  to  allocate  all  public  interest  requirements  to  one 
 digital  stream  would  not  further  Congress  goal  of  giving  wide  access  to  public  interest 
 information.    Fewer  people  would  choose  to  access  the  information.  The  FCC  does  not 
 mandate  these  requirements  so  the  public  will  have  the  information  at  its  disposal;  the 
 requirements  are  mandated  to  make  sure  the  public  watches  and  receives  the  information. 
 Otherwise,  public  interest  information  would  not  be  required  on  television.  People  can 
 always  buy  newspapers. 


 II.  Disclosure  Oblkations 
 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.*  Furthermore,  the  enhanced 
 disclosures  should  include,  but  not  be  limited  to  contributions  to  political  discourse, 
 public  service  announcements,  childrens  and  educational  programming,  local 
 programming,  programming  that  meets  the  needs  of  underserved  communities,  and 
 community-  specific  activities.  These  recommendations  are  reasonable.  The  only  real 


   47  U.  S.  C.  A.  9  336(  d)  states  Nothing  in  this  section  shall  be  construed  as  relieving  a  television 
 broadcasting  station  from  its  obligation  to  serve  the  public  interest.  .  .  . 


 4 
27
 problem  I  have  with  these  requirements  is  that  they  appear  to  apply  only  to  Digital 
 Broadcasters.  If  these  disclosure  requirements  are  to  become  regulations,  they  should 
 apply  across  the  board  to  all  broadcasters.  That  being  said,  however,  I  believe  these 
 requirements  would  go  toward  achieving  the  Commissions  goal  in  making  public  interest 
 material  accessible  to  the  public.  Most  all  Broadcasters  today  have  a  website.  By 
 mandating  that  public  interest  programming  information  be  placed  on  a  Broadcasters 
 website,  the  information  will  be  readily  available  for  concerned  parents  and  other 
 members  of  the  public.  I  think  we  all  know  that  TV  listings  in  the  newspaper  are  not 


 always  accurate  or  complete  as  to  the  content  and  themes  of  certain  programs.  Placing 
 descriptions  of  public  interest  programming  on  the  web  will  allow  any  one  to  shop  for 
 the  best  source  and  variety  of  public  interest  TV. 
 Furthermore,  this  should  not  be  a  large  expense  to  broadcasters.  As  mentioned 
 previously,  the  Advisory  Committee  recommended  that  check-  off  forms  be  used  to 
 reduce  administrative  burden  in  handling  the  disclosures.  The  reduction  of  administrative 
 burden  should  likewise  reduce  the  burden  on  the  broadcasters  to  disclose  their  public 
 interest  programming.  Again,  placing  this  information  on  the  internet  would  not  be  a 
 significant  burden.  This  information  should  include  the  type  of  program,  and  the 
 broadcast  should  be  classified  as  to  its  intended  audience.  Is  this  a  childrens  show?  If 
 so,  what  are  the  intended  age  groups  ?  If  the  show  is  one  dedicated  to  political  discourse, 
 the  subject  matter  to  be  covered  should  be  made  available  on  the  web  so  that  people  can 
 choose  what  they  are  interested  in.  These  disclosure  requirements  will  be  of  great  help  to 
 the  public,  yet  should  not  be  overly  burdensome  to  broadcasters. 


 '65FR4211,4213(  2000). 
 5 
28
 I  would  also  like  to  comment  on  the  how  broadcasters  could  use  the  Internet  to 
 ensure  that  they  are  responsive  to  the  needs  of  the  public.  On  each  broadcasters  website 
 where  public  interest  broadcasts  are  described  and  listed,  there  should  be  opportunity  for 


 feedback.  The  easiest  way  would  be  to  include  a  survey  along  with  each  show.  The 
 survey  could  be  a  form  drafted  by  the  Commission  to  insure  fair,  unbiased  questions  and 


 ease  of  understanding.  The  survey  form  would  be  the  same  for  each  type  of  public 
 interest  show,  i.  e.,  political,  children,  etc.,  and  would  be  uniform  for  all  broadcasters. 
 This  would  allow  the  public  to  comment  directly  to  the  broadcaster  on  any  given  show. 
 Each  website  could  contain  an  email  address  specifically  for  the  publics  concerns. 
 However,  for  the  same  reason  that  the  enhanced  disclosures  would  be  done  on  check-  off 
 forms  to  reduce  administrative  burden,  requiring  broadcasters  to  read  through  each  e-  mail 
 may  prove  too  burdensome.  The  forms  would  likewise  reduce  the  broadcasters  burden 
 of  responding  to  public  opinion  regarding  public  interest  material.  Plus,  the  relative  ease 
 of  tabulating  the  responses  would  allow  broadcasters  to  meet  the  publics  needs  more 
 quickly. 


 III.  Disaster  Warninps 
 The  Advisory  Committee  reports  that  Digital  Television  will  enable  broadcasters 
 to  pinpoint  certain  households  in  transmitting  disaster  warnings.  Should  this 
 advancement  be  possible  without  undue  burden  on  the  broadcasters,  this  type  of 
 pinpointing  should  be  mandatory.  Although  this  recommendation  conflicts  with  my 
 general  belief  that  Digital  Broadcasters  should  not  be  subject  to  requirements  other 


 6 
29
 broadcasters  are  not,  I  believe  there  should  be  an  exception  here  due  to  the  overwhelming 
 public  safety  interest.  I  suggest  that  some  people  see  a  warning  on  television  and  instead 
 of  paying  attention  to  the  message,  they  complain  about  that  annoying  little  sound  that 
 comes  with  it.  The  bottom  line  is  that  some  people  do  not  believe  the  dangerous 
 conditions  apply  to  them.  By  letting  everyone  know  the  exact  location  of  a  tornado,  or 
 the  path  of  a  thunderstorm,  the  public  as  a  whole  will  pay  more  attention  to  the  warning. 
 In  addition  to  increased  awareness,  the  new  technology  could  serve  to  warn 
 certain  groups  specifically.  For  instance,  those  in  the  direct  path  of  a  tornado  would 
 know  to  go  to  the  basement.  The  specificity  of  a  transmission  will  bring  its  import  closer 
 to  home. 
 If  this  pinpointing  is  possible,  the  NO1  asks  how  the  Commission  should 
 encourage  digital  broadcasters  to  deploy  such  technology.  If  the  burden  is  not 
 significantly  higher  than  the  current  cost  and  expense  to  broadcasters  to  broadcast 
 emergency  warnings,  then  the  current  regulations  should  simply  be  modified  to  include 
 this  type  of  transmission.  Should  the  costs  of  such  transmissions  be  higher  than  those 
 broadcasters  currently  experience,  the  Commission  should  attempt  to  alleviate  some  of 
 the  cost. 
 IV.  Minimum  Public  Interest  Requirements 


 First,  I  have  made  my  position  clear  that  digital  broadcasters  should  not  have 
 higher  or  more  stringent  standards  in  the  area  of  public  interest  transmissions.  The 
 standards  should  be  the  same  for  everyone.  That  being  said,  I  believe  the  Commission 
 should  look  into  how  to  define  public  interest  broadcasting.  The  regulations  do  not  give 


 7 
30
 any  definite  instruction  on  public  interest  programming  such  as  childrens  education.  3 
 Indeed,  the  current  regulations  do  not  even  mandate  affording  time  to  political 
 candidates.  They  simply  state  that  if  time  is  afforded,  it  should  be  equal.  4 
 I  believe  the  Commission  should  define  public  interest  requirements  more 
 specifically,  although  I  do  not  believe  the  cost  to  the  broadcasters  must  increase 
 significantly.  Each  broadcaster  should  be  required  to  give  equal  time  to  local  and 
 national  politics.  This  requirement  may  be  filled  on  the  local  news  every  night.  Indeed, 
 many  broadcasters  may  already  adhere  to  this  proposed  rule,  and  therefore  there  will  not 
 be  any  additional  burden  on  them.  Other  digital  broadcasters  may  wish  to  contract  with 
 local  stations  to  carry  their  local  news.  In  either  case,  no  more  than  half  an  hour  should 
 be  mandated  by  the  commission  for  either  regular  or  digital  broadcasters.  The 
 regulations  in  place  currently  regarding  giving  each  candidate  for  office  equal  air-  time 
 are  prudent  and  should  not  be  altered. 
 V.  Conclusion 


 To  conclude,  digital  broadcasters  should  not  face  heavier  burdens  and  greater 
 regulation  simply  because  they  broadcast  using  the  new  digital  technology.  To  the  extent 
 that  it  is  economically  feasible,  digital  broadcasters  should  provide  greater  accuracy  in 
 warning  of  impending  disasters.  Television  as  a  whole  would  benefit  from  more 
 disclosure  by  broadcasters,  and  the  intemet  would  be  an  effective  and  relatively 
 inexpensive  way  to  communicate  with  the  public  at  large.  Lastly,  minimum  public 


   47  C.  F.  R.  $  73.671  simply  states  that  broadcasters  should  broadcast  educational  programming  for  children 
 over  the  term  of  their  license. 
   47  C.  F.  R.  3  73.1941 


 8 
31
 interest  requirements  are  good  for  television  if  they  are  defined  precisely  by  the 
 commission  and  are  not  too  burdensome  on  broadcasters  as  a  whole. 
 I  ask  that  you  consider  carefully  any  new  rules  regarding  digital  television. 
 DTV  has  the  potential  to  open  up  new  paths  of  communication.  However,  access  to  these 
 paths  should  not  be  made  too  difficult  by  excessive  regulation.  To  the  extent  feasible, 
 however,  television  as  a  whole  can  be  improved  with  more  precise,  definite  requirements. 


 Sincerely, 


 Stephen  E.  Cox,  Jr. 
32
 Comments  to  the  Federal  Communications  Commission 
 47  CFR  73  (MM  Docket  No.  99-  360;  FCC  99-  390) 
 Public  Interest  Obligations  of  Television  Broadcast  Licensees 
 This  comment  discusses  the  applicability  of  the  Childrens  Television  Act  of  1990 
 to  digital  television  licensees. 


 Rachel  M.  Eaton 
 Introduction: 
 This  comment  is  narrowly  focused  on  the  Childrens  Television  Act  of  1990 
 (  Act)  as  it  should  be  applied  to  digital  television  licensees.  I  am  writing  this  comment 
 as  a  third  year  law  student  at  the  University  to  Tennessee  College  of  Law.  As  a  young 
 person  planning  to  have  children  of  my  own,  I  see  digital  television  as  effecting  my 
 future  family  life  in  a  significant  way.  However,  my  concern  also  lies  with  the  rest  of 
 i\  merican  children,  some  of  whom  will  not  enjoy  DTV  technology  for  many  years. 
 My  proposals  seek  to  find  a  balance  between  the  compelling  interest  in  childrens 
 education  with  our  nations  valued  First  Amendment  rights.  In  the  past  the  limitations  of 
 traditional  television  broadcasting  created  a  need  for  regulation  of  childrens  television. 
 However,  the  advent  of  DTV,  along  with  VHS  and  DVD  technology  will  gradually  make 
 regulation  unnecessary.  I  propose  the  regulations  contained  in  the  Act  continue  to  apply 
 to  non-  digital  broadcasters.  Digital  television  broadcasters,  however,  should  not  be  held 
 to  the  standard  set  out  in  the  Act.  DTV  licensees  should  be  given  every  incentive  to 
 self-  regulate,  but  it  is  likely  the  market  will  take  care  of  itself,  as  pressure  from  parent 


 and  school  groups  increases.  Broadcasters  are  seeing  childrens  television  as  a  valuable 
 market,  with  quality  childrens  programming  becoming  the  standard,  not  the  exception. 
33
 A  History  of  Childrens  Television  Regulation: 
 A  reading  of  the  first  amendment  would  seem  to  imply  an  attitude  against 
 restrictions  in  television  broadcasting.  However,  the  Federal  Communications 
 Commission  (FCC)  exists  to  regulate  various  aspects  of  human  expression,  including 
 television  broadcasts.  What  has  been  called  the  Reagan  Revolution    of  the  1980s 
 sought  to  deregulate  all  industry  in  the  United  States.  The  trend  toward  deregulation  was 
 adopted  by  the  FCC  and  the  television  industry  began  a  move  away  from  regulation. 
 This  hands-  off  approach  continued  until  the  passage  of  the  Childrens  Television  Act  of 
 1990.  The  Act  was  prompted  by  public  sentiment  that  the  deregulation  policy  of  the 
 Reagan  administration  was  having  a  negative  impact  on  childrens  television 
 programming.  It  should  be  noted  that  the  Act  was  not  passed  until  Reagan  was  out  of 
 office,  and  even  then  Bush  merely  allowed  the  passage  of  the  Act,  never  actually  signing 
 the  bill  into  law.    Studies  conducted  in  the  1980s  suggested  television  licensees 
 were  not  offering  enough  childrens  programming  because  there  was  no  financial 
 incentive  to  do  so.   
 Basically,  the  Act  consists  of  three  parts:  time  restrictions  on  commercials  during 
 childrens  broadcasting,  the  programming  standards  under  consideration  for  license 
 renewal,  and  the  establishment  of  an  endowment  to  promote  quality  childrens 
 programming.  Another  element  has  been  added  to  the  Act  under  the  Clinton 


 Michael  J.  Palumbo,  Broadcast  Regulation,  Has  the  Marketplace  Failed  the  Children: 
 The  Childrens  Television  Act  of  1990,  15  Seton  Hall  Legis.  J.  345  (1991)  (this  article 
 was  written  just  after  the  passage  of  the  Act,  and  contains  constitutional  concerns  raised 
 by  the  limitations  of  the  Act). 
 Palumbo,  supra  note  1  at  356. 
 John  Uscinski,  Deregulating  Commercial  Television:  Will  the  Marketplace  Watch  Out 
 for*  Children.  ,  3  34  Am.  U.  L.  Rev.  141,  142  (1984)  (a  article  written  before  the  passage  of 
 the  Act,  which  expresses  the  fundamental  concerns  leading  up  to  the  passage  of  the  Act). 


 .  .  -..----  -  .-.  ._---  .  ._  ~.  ,^._..  _  -.._  ---  I__  ._-  I 
34
 administration,  which  includes  mandatory  minimums  on  the  amount  of  childrens  shows 
 with  more  specific  quality  standards  required  for  license  renewal. 
 The  Act  itself  appears  to  have  a  broad  policy  motive:  putting  the  best  interests  of 
 children  first.  It  calls  for  programming  that  develops  fundamental  intellectual  skills   
 and  demands  overall  programming  which  serves  the  educational  and  informational 


 needs  of  children.    However,  the  actual  regulations  of  the  Act  are  very  specific.  The 
 commercial  restrictions  are  clear,  limiting  broadcasters  to  specific  amounts 
 commercial  air  time  per  hour.  Also,  the  more  recent  three  hour  minimum  of  childrens 
 programming  is  quite  strict.  Stations  which  broadcast  at  least  three  hours  each  week  of 
 programming  specifically  designed  to  serve  the  educational  and  informational  needs  of 
 children  will  be  found  in  compliance  with  their  general  obligation  under  the  Act.  6  Of 
 course,  clearly  written  regulations  are  appreciated,  especially  in  light  of  the  rather 
 nebulous  public  interest  standard  of  the  Communications  Act  of  1934.  However,  it 
 seems  as  though  the  Act  treats  broadcasters  much  like  the  children  it  seeks  to  protect. 
 By  passing  the  Act,  Congress  .  .  .  sought  to  protect  children  from  the  abuse  of  the 
 lack  of  programming  choices  television  imposes.    However,  digital  television  does  not 
 limit  broadcasters  to  airing  one  show  at  a  time.  It  is  very  possible  the  Act  has  no 
 relevance  in  the  realm  of  DTV.  Broadcasters  are  no  longer  are  forced  to  choose  between 
 highly  rated  adult  programming  and  less  profitable  childrens  shows.  Of  course, 
 non-  digital  broadcasters  are  still  limited  to  airing  one  show  in  any  given  time  slot.  The 
 4Childrens  Television  Act  of  1990,  47  USCA  sec.  394(  a)  (1999). 
 hi.  at  sec.  303b(  a)(  2).  James  .I.  Popham, 
 Passion,  Politics  and  the  Public  Interest:  The  Perilous  Path  to  a  Quantitative  Standard  in  the  Regulation  of  Children  s  Television  Programming,  5 


 CommLaw  Conspectus  1  (1997)  (  contains  a  detailed  account  of  the  political  process 
 leading  up  to  the  passage  of  the  mandatory  minimum  programming  guidelines). 
 Palumbo,  supra  at  note  1,400. 
35
 Act  still  has  a  place  for  non-  digital  licensees,  and  should  continue  to  be  in  effect  so  long 
 as  there  are  children  without  the  privilege  of  DTV.  It  appears  as  though  a  return  to 
 Reagan-  era  deregulation  will  work  in  relation  to  digital  television  licensing.  Children  are 
 a  powerful  audience,  and  there  is  money  to  be  made  by  airing  shows  which  educate 
 children  and  impress  parents.  Networks  now  have  the  incentive  they  need  to  air  quality 
 childrens  television,  without  sacrificing  prime  time  adult  programming. 


 The  Nickelodeon  Effect: 
 Since  the  introduction  of  Sesame  Street  more  than  thirty  years  ago,  PBS  has  set 
 the  standard  for  childrens  broadcasting.  Quality  childrens  television  is  easy  to  find 
 when  Wishbone,  Big  Bird  or  Barney  come  on  the  air  at  times  geared  to  increase  viewing 
 by  children.  But,  PBS  is  a  public  television  station,  which  generally  means  the 
 pressure  of  turning  a  profit  is  not  a  factor  in  choosing  programming.  As  much  as  PBS 
 programs  may  be  a  model  to  other  networks,  it  is  unrealistic  to  expect  a  profit-  driven 
 network  to  produce  and  air  shows  which  create  little  or  no  revenue.  A  better  model  is  a 
 network  which  seems  to  produce  entertaining  and  educational  shows  while  still  turning  a 
 profit.  In  the  past  decade,  one  network  has  proven  this  is  possible.  That  network  is 
 Nickelodeon,  a  network  parented  by  MTV. 
 Nickelodeon  has  tuned  into  the  recent  trend  of  children  in  the  marketplace.  It  is 
 easy  to  see  from  the  sale  of  Pokemon  cards  or  the  box  office  returns  from  Disney  movies 
 that  parents  spend  huge  amounts  of  money  on  their  kids.  Increasingly  parents  are 
 pushing  their  children  toward  entertainment  which  is  also  educational. 


 -.__  ._.....__  -  .  _  .-_;___.--  ,,  l. 
36
 The  most  impressive  example  if  Nickelodeons  commitment  to  quality 
 programming  is  Nick  Jr.,  a  series  of  shows  airing  weekday  mornings.  With  Nick  Jr.,  the 
 network  demonstrates  over-  compliance  with  the  commercial  restrictions  of  the  Act. 
 Instead  of  spreading  commercials  throughout  an  hour  of  programming,  the  commercials 
 are  shown  as  a  group  at  the  end  of  the  hour.  The  only  breaks  during  programming  are  for 
 educational  skits  and  station  identification.  Nickelodeon  takes  a  big  risk  by  airing  an 
 hours  worth  of  commercials  at  once.  Viewers  could  simply  anticipate  the  hourly  break 
 and  not  watch  the  commercials.  But  the  network  is  catering  to  its  preschool  audience, 
 with  an  understanding  of  how  important  the  educational  needs  of  young  children  are. 
 A  primary  reason  for  the  commercial  limits  imposed  by  the  Act  is  the  suggestion 
 that  children  are  influenced  by  the  content  of  commercials.  8  Studies  have  shown  that 
 children  5  years  or  younger  have  difficulty  identifying  advertising  content  and 
 discriminating  the  advertisements  from  the  program.  9  Nick  Jr.  eliminates  this  problem 
 by  the  use  of  Face.  Face  is  a  cartoon  face  who  appears  on  the  screen  between  the  show 
 and  the  commercials.  Face  informs  the  audience  of  the  upcoming  commercials  and  when 
 programming  will  resume.  Additionally,  Face  throws  in  educational  tidbits  for  the 
 viewer. 
 However,  the  primary  achievement  of  Nick  Jr.  is  not  in  its  advertising  policy. 
 What  impresses  me  most  is  the  content  of  the  programming.  Two  shows  in  particular 
 demonstrate  how  a  private  network  can  produce  quality  entertainment  for  children. 
 These  shows  are  Gula  Gula  Island  and  Alegras  Window.  Gula  Gula  Island  involves  a 


 Diane  Aden  Hayes,  The  Children  s  Hour  Revisited:  The  Children  s  Television  Act  of 
 1990,  46  Fed.  Comm.  L.  J.  293,  296  (1994)  (an  excellent  article  filled  with  suggestions  to 
 make  the  Act  more  effective,  also  a  good  explanation  of  the  Act  and  its  implementation). 
 Palumbo,  supra  note  1,  at  376. 
37
 family  living  on  the  Carolina  coast  as  they  learn  and  deal  with  new  situations  in  daily  life. 
 The  unusual  aspect  of  the  show  is  the  diversity  of  the  cast.  The  main  characters  are  part 
 of  an  African  American  family  who  educate  other  characters  about  their  heritage.  The 
 rest  of  the  cast  are  a  mixture  of  Asian,  Hispanic,  and  Caucasian  neighbors  in  the 
 community.  The  example  set  by  the  show  is  one  of  close  family  ties  and  close 
 community  bonds,  without  regard  to  race  or  color. 
 Another  well  written  show  on  Nick  Jr.  is  Alegras  Window.  The  fact  that  most  of 
 the  characters  are  puppets  does  not  make  this  show  unrealistic.  The  setting  of  much  of 
 Alegras  Window  is  at  the  daycare  center  Alegra  attends.  Nickelodeon  has  chosen  to 
 deal  with  the  emotional  issue  of  children  going  to  daycare  when  mothers  go  back  to 
 work.  Naturally,  the  primary  focus  of  the  programming  is  educational,  but  very  often 
 Alegras  feelings  come  into  play.  The  characters  help  Alegra  deal  with  her  insecurities 
 about  daycare  and  develop  a  positive  attitude  toward  the  experience.  The  overall  attitude 
 of  the  show  is  very  positive,  giving  the  viewer  a  sense  that  daycare  can  be  fun. 
 These  are  just  a  few  examples  of  Nickelodeons  responsible  efforts  to  educate  and 
 entertain  children  while  existing  in  a  profit-  driven  environment.  If  Nickelodeon  can 
 devote  large  portions  of  its  programming  to  childrens  television,  then  certainly  DTV 
 broadcasters  can  find  time  on  one  of  their  channels  to  do  the  same.  There  is  an  obvious 
 market  for  quality  childrens  television,  and  digital  technology  will  allow  broadcasters  to 
 serve  the  needs  of  children  without  sacrificing  valuable  air  time.  Additionally,  many 
 digital  channels  will  be  commercial  free,  allowing  parents  to  choose  these  channels  over 
 those  that  do  air  commercials. 
38
 Conclusion: 
 It  is  easy  to  justify  restrictions  on  freedom  of  speech  when  the  interests  of 
 children  are  involved.  However,  regulations  should  only  exist  when  there  is  an  obvious 
 need.  The  deregulation  of  television  broadcasting  during  the  1980s  created  a  need  in 
 the  1990s  for  the  Childrens  Television  Act  of  1990.  But  new  technology  brings  with  it 
 the  opportunity  to  cure  past  problems  and  learn  from  our  mistakes.  Digital  television  is 
 going  to  do  great  things  for  childrens  programming.  Non-  digital  networks,  such  as 
 Nickelodeon,  have  already  noticed  the  demand  for  and  profit  potential  of  quality 
 childrens  television. 
 Digital  television  has  made  the  restrictions  imposed  by  the  Act  unnecessary. 
 Licensees  are  now  equipped  to  meet  the  demands  of  parents  and  educators  without 
 threatening  the  stability  of  a  networks  finances.  As  long  as  the  market  for  quality 
 childrens  television  exists,  there  will  be  programming  available  on  digital  television. 
 Naturally,  until  all  children  have  access  to  DTV,  the  Act  should  remain  in  effect  for 
 non-  digital  licensees.  But  as  we  move  toward  this  new  technology,  we  should  embrace 
 what  digital  television  allows  us:  freedom  fi-  om  the  restrictions  of  the  past. 
39
 TO:  William  E.  Kennard,  Chairman-  FCC 
 FROM:  Natalya  L.  Sowers 


 cc:  Professor  Glenn  H.  Reynolds 
 DATE:  March  11,  2000 
 RE:  Mandatory  Public  Interest  Obligations  Of  DTV 
 Broadcasters 


 INTRODUCTION  AND  BACKGROUND 
 Dear  Chairman  Kennard: 
 On  January  26,  2000,  the  Federal  Communications 
 Commission  published  a  notice  of  proposed  rulemaking 
 regarding  the  public  interest  obligations  on  the 
 broadcasters  as  they  adopt  digital  transmission  technology. 
 Proposed  Rules,  47  Fed.  Reg.  73  (Jan.  26,  2000).  The 
 Commission  noted  that  for  seventy  years,  since  the 
 Communication  Act  of  1934,  "broadcasters  have  been  required 
 .  .  .  to  serve  the  'public  interest,  convenience,  and 
 necessity.  '"  The  Commission  reaffirmed  that  digital  TV 
 broadcasters  must  comply  with  these  existing  public 
 interest  obligations. 
 The  Commission  is  considering,  however,  to  adopt  new 
 public  interest  rules  that  would  affect  digital  television 
 only.  These  new  rules  would  be  adopted  in  addition  to  the 


 1 
 --.-  "--- 
40
 already  existing  public  interest  standards  applicable  to 
 digital  TV  broadcasters.  The  Commission  seems  to  be  of 


 the  opinion  that  these  additional  rules  are  justified  by 
 the  new  opportunities  that  the  digital  TV  broadcasters  will 
 receive  in  the  future. 
 I  am  writing  in  opposition  to  these  new  additional 
 public  interest  standards.  First,  these  additional  rules 
 are  unwarranted  in  view  of  the  uncertainties  that  surround 
 the  digital  TV  technology.  Second,  these  rules  would  not 
 serve  any  public  interest,  while  unnecessarily  burdening 
 broadcasters. 


 DISCUSSION 
 Under  the  Communications  Act  of  1934,  broadcasters 
 must  comply  with  a  number  of  "affirmative  public  interest 
 programming  and  service  obligations."  The  Commission 
 ensures  this  compliance  by  approving  or  transferring 
 broadcast  licenses  only  when  it  "first  find[  s]  that  doing 
 so  will  serve  the  public  interest."  As  a  part  of  their 
 public  interest  service,  broadcasters  must  cover  issues 


 "facing  their  communities,"  air  "children's  educational  and 
 informational  programming,"  and  comply  with  the  political 
 broadcasting  requirements.  The  statutory  political 
 broadcasting  requirements,  for  example,  concern  such  issues 


 2 
41
 as  "equal  opportunities,  charges  for  political  advertising, 
 and  reasonable  access  for  federal  candidates."  Moreover, 
 broadcasters  are  "prohibited  from  airing  programming  that 
 is  obscene,  and  [are]  restricted  from  airing  programming 
 that  is  'indecent'  during  certain  times  of  the  day." 
 Throughout  the  years  since  the  Communications  Act  was 
 passed,  the  Commission  has  been  satisfied  with  this  set  of 
 standards  for  the  analog  TV  broadcasters  and  found  them 
 sufficient  to  ensure  that  broadcasters  act  as  public 
 trustees"  and  "serve  public  interest."  I  believe  that  the 
 same  set  of  public  requirement  standards  should  apply  to 
 the  digital  TV  broadcasters  and  that  the  Commission  should 
 not  burden  DTV  broadcasters  with  any  new  additional  public 
 interest  rules. 


 Uncertainties  Facing  Digital  TV  Broadcasters 
 No  one  denies  that  digital  TV  broadcasters,  just  as 
 analog  TV  broadcasters,  should  strive  to  serve  public 
 interest.  It  is  not  at  all  clear,  however,  that  there 
 should  be  adopted  an  additional  set  of  mandatory  public 
 interest  requirements  specifically  and  exclusively  for 
 digital  TV  broadcasters. 
 One  of  the  proposals  in  this  regard  is  that  of  the 
 Advisory  Committee  that  recommended  in  its  report  that 


 3 
42
 "[  tlhe  FCC  .  .  .  adopt  a  set  of  mandatory  minimum  public 
 interest  requirements  for  digital  broadcasters  that  would 
 not  impose  an  undue  burden  on  digital  broadcast  stations, 
 [and  that]  should  apply  to  areas  generally  accepted  as 
 important  universal  responsibilities  for  broadcasters." 
 There  are  several  problems  with  this  proposal. 
 First,  it  "ask[  s]  broadcasters  to  take  a  pledge  to  do 
 something  that  they  are  already  doing."  l  Second,  and  most 
 importantly,  it  ignores  the  uncertainties  that  surround  the 
 digital  services. 
 One  of  the  uncertainties  that  the  digital  TV 
 broadcasters  face  is  what  will  be  their  market.  This 
 market  can  certainly  be  affected  by  the  high  prices  of  the 
 DTV  sets2  and  the  ease  or  difficulty  with  which  those  sets 
 will  be  compatible  with  other  consumer  electronics,  such  as 
 VCRs,  DVDs,  and  camcorders.  3 


 '  Paige  Albiniak,  Gore  Plan  to  Move  Forward,  BROADCASTING  & 
 CABLE,  Nov.  16,  1998,  at  24. 


 2  "Currently,  a  monitor  capable  of  showing  a  full  high- 
 definition  picture  .  .  .  may  cost  from  $3,000  to  $10,000, 
 and  set-  top  boxes  that  receive  DTV  broadcasts  start  at 
 about  $700."  New  Motorola  Module  technology  Puts  DTV  on 
 Standard  Television;  TVs,  VCRs  and  Set-  Top  Boxes  with  Motorola's  Affordable  M-  DTV  Technology  Puts  DTV  in  Front  of 


 Consumers.  BUSINESS  WIRE,  Oct.  4,  1999,  at  57. 
 3  None  of  these  devices  are  compatible  with  the  DTV  sets 
 presently. 


 4 
43
 The  DTV  market  will  also  be  affected  by  whether 
 stations  in  a  given  market  will  be  broadcasting  digital 
 signals.  In  its  turn,  the  local  stations'  willingness  to 
 convert  to  DTV  will  be  affected  by  the  cost  of  this  change4 
 and  by  the  advertisers'  and  consumers'  reaction  to  the  new 
 digital  technology. 
 It  is  thus  unclear  what  will  be  the  digital 
 technology's  place  in  the  communications  market.  Because  of 
 the  uncertainty  of  the  success  of  the  digital  technology, 
 it  is  hard  to  define  exactly  what  public  interests  this  new 
 technology  will  affect,  and,  as  a  result,  what  public 
 interests  must  be  protected.  After  all,  such  standards  may 
 prove  to  be  unworkable,  if  not  obsolete,  when  the 
 technology  finally  reaches  the  public. 


 Burdens  and  Challenges  Surrounding  Digital  TV 
 Attempts  to  define  the  "universal  responsibilities" 
 for  DTV  broadcasters  appear  misplaced  especially  in  light 
 of  the  technical  difficulties  with  which  these  broadcasters 
 are  currently  struggling.  The  Commission  should  pay  closer 
 attention  to  the  numerous  technical  issues  unresolved 
 instead  of  simply  pressuring  for  a  faster  industry  action 


 4  TVNetworks  Differ  On  Digital,  L.  A.  TIMES,  Apr.  3,  1998,  at  D4. 


 5 
44
 on  "standards  for  a  device  that  will  allow  TV  sets  to 
 receive  a  high-  definition  picture."  5  The  Commission  had 
 stated  that  it  wants  the  digital  standards  debate  to  focus 
 on  consumers,  6  but  at  the  same  time,  it  has  unrealistically 
 urged  the  industry  for  an  aggressive  timetable  for 
 completing  the  standard.  In  fact,  the  Commission  is 
 concerned  with  the  content  of  the  media  that  is  not  so  sure 
 to  reach  the  American  homes. 
 First,  there  is  the  equipment  problem:  consumer  video 
 equipment  like  VCRs,  camcorders,  DVDs,  and  satellite  TV 
 dishes  that  do  not  work  with  the  new  digital  TV  sets.  7 
 Second,  even  the  development  of  the  wire  connecting  the 
 cable  system's  digital  inputs  to  the  digital  TV  set  is  not 
 yet  complete,  so  the  consumers  will  not  be  able  to  receive 
 high  definition  digital  broadcasts  at  all.  '  In  fact,  the 
 designated  transmission  standard  cannot  be  received  based 


 '  Chris  McConnell  &  Price  Colman,  FCC  Tackles  Digital  Must- 
 Carry,  BROADCASTING  &  CABLE,  July  13,  1998,  at  8. 


 6  Must  Carry,  BROADCAST  ENGINEERING,  Sept.  17,  1998. 
 7  Transition  to  HDTV:  Hearing  Before  the  Senate  Comm.  on  Commerce,  Science  and  Transp.,  110  Gong.  (1998)  (statement 
 of  John  McCain,  Senator). 
 '  Id. 


 6 
 -.-_- 
45
 on  currently  available  technology.  g  It  is  unclear, 
 therefore,  why  new  and  different  standards  should  be 


 imposed  if  the  picture  that  the  consumers  will  get  on  their 
 expensive  DTV  sets  will  be  "no  different  than  what  they 
 would  have  gotten  on  their  old  TV  set."  l' 
 These  technical  problems  certainly  present  significant 
 obstacles  to  the  success  of  the  new  digital  technology  and 
 are  quite  worthy  of  being  addressed  by  the  Commission 
 before  it  focuses  exclusively  on  the  content  of  the  new 
 media.  If  the  Commission  does  not  choose  to  address  these 
 technical  difficulties,  it  should,  at  least,  not  strive  to 
 slow  the  future  development  and  implementation  of  the  new 
 digital  technology  by  the  imposition  of  the  new  mandatory 
 standards. 


 CONCLUSION 
 While  it  is  quite  clear  that  the  digital  franchise 
 will  be  "infinitely  more  flexible  and  more  valuable  than 
 its  analog  counterpart,"  ll  this  alone  does  not  justify 


 '  Sinclair  Files  Petition  With  the  FCC  Modification  To  Digital  Television  Rules  Urged,  PR  NEWSWIRE,  Oct.  11,  1999, 
 at  3550. 
 lo  Id. 
 I1  David  Hatch,  Wiley:  Take  it  Easy  on  New  Digital  Rules, 
 ELECTRONIC  MEDIA,  July  21,  1997,  at  59. 


 7 
46
 imposition  of  the  standards  by  the  Commission  that  would 
 not  resolve  the  significant  technical,  programming  and 
 economic  problems  facing  the  broadcasters'  transition  to 
 digital,  but  will  only  burden  them  with  more  rules  of  the 
 kind  with  which  they  already  comply.  The  Commission  should 
 be  wary  of  the  negative  effect  of  these  additional 
 duplicative  rules  on  the  development  and  implementation  of 
 digital  technology.  Perhaps,  the  Commission  should 
 continue  its  support  of  such  industry  initiatives  as  those 
 of  the  Advanced  Television  Systems  Committee  (ATSC).  12 
 American  public  and  development  of  standards  for  digital 
 television  are  certain  to  benefit  from  the  ATSC's  efforts 
 to  "develop[]  digital  television  implementation  strategies 
 and  [to]  create[]  a  certification  program  for  television 
 sets,  computers,  and  other  consumer  video  devices."  13 


 I2  Bitstream  Joins  Advanced  Television  Systems  Committee;  Bitstream  Will  Support  the  Organization's  Mission  To 
 Enhance  the  Functionality  of  the  Digital  Television  Standard,  BUSINESS  WIRE,  July  13,  1999,  at  1238. 


 l3  Id. 
 8 
47
 To:  Federal  Communications  Commission  (FCC) 
 From:  Valorri  Jones 
 cc:  Professor  Glenn  H.  Reynolds 
 Date:  March  16,  2000 
 Re:  Comments  on  Public  Interest  Obligations  of  Television  Broadcast  Licensees 


 INTRODUCTION  AND  BACKGROUND 
 In  the  early  1990s,  the  FCC  began  to  take  steps  away  from  an  analog  broadcasting 
 systems  to  a  fully  digital  system.  The  Commission  adopted  rules  that  required  stations  to  build 
 new  digital  facilities.  The  FCC  gave  broadcasters  a  timeline  based  on  the  size  of  each  market 
 and  required  that  the  top  four  commercial  networks  in  the  top  ten  markets  have  digital  facilities 
 constructed  prior  to  May  1,  1999.  The  FCC  gave  all  other  stations  until  May  1,2002.  Currently 
 most  stations  are  required  to  simulcast  in  both  analog  and  digital  formats.  The  concern  that 
 consumers  will  not  invest  in  digital  television  is  a  valid  one. 
 I  wish  to  respond  to  your  recent  notice  of  proposed  rulemaking  on  how  broadcasters  can 
 best  serve  the  public  interest  as  they  transition  to  digital  transmission  technology.  I  have  read  the 
 The  Gore  Commission  Report  on  Public  Interest  Obligations  of  Digital  Broadcasters,  and 
 similar  reports  on  this  topic.  I  am  aware  that  the  FCC  is  in  need  of  comments  and  proposals  on 
 how  to  best  serve  the  public  interest. 
 The  transition  from  analog  to  digital  broadcasting  raises  several  concerns  and  questions. 
 1)  What  standards  will  govern  digital  television,  and  who  will  determine  them?  2)  More 
 specifically,  what  reasons  can  the  FCC  and/  or  digital  broadcasters  give  the  public  as  to  how 
48
 digital  communication  will  better  serve  them  than  analog?  3)  What  are  the  negative 
 consequences  (expected  or  unexpected)  to  changing  to  digital  technology? 


 WHAT  STANDARDS  WILL  GOVERN  DIGITAL  TELEVISION,  AND  WHO 
 WILL  DETERMINE  THEM? 


 Currently  public  concern  with  television  is  chiefly  centered  around  censorship. 
 Government  control  over  what  viewers  will  and  will  not  see  on  television  has  been  the 
 subject  of  much  controversy.  Too  much  government  control  in  this  new  era  of 
 communication  could  be  counterproductive  to  its  potential  benefits.  I  agree  with  the 
 Gore  report  that  the  National  Association  of  Broadcasters  (NAB)  should  determine  the 
 standards  for  digital  technology  and  the  transition  to  digital  technology.  As  I  initially 
 experienced  in  trying  to  obtain  knowledge  on  this  subject,  it  would  be  taxing  on  the 
 public  to  determine  these  standards  because  of  the  difficulty  in  understanding  the  subject 
 matter.  The  NAB  is  probably  the  expert  in  this  field  and  is  undoubtedly  the  most 
 qualified  group  to  set  such  standards  for  this  new  form  of  communication. 
 However,  I  am  aware  that  up  to  400  broadcasters  do  not  belong  to  the  NAB  which 
 raises  concerns  about  how  these  companies  will  be  affected  by  standards  drafted  by  the 
 NAB.  Accommodations  must  be  made  for  these  broadcasters,  especially  if  they  are 
 forced  to  compete  with  other  digital  television  broadcasters.  These  broadcasters  should 
 have  some  voice  in  creating  the  standards  by  which  they  will  ultimately  be  governed.  I 
 suggest  the  NAB  invite  representatives  from  those  companies  that  are  not  members  to 
 join  in  this  decision  making  process.  Full  support  from  all  broadcasters  in  the  standard 


 2 
 ,  .  ._.  .__-.  l-----_-.  l_.  ----____~~_.  ._  -.. 
49
 setting  for  digital  television  could  foster  a  positive  public  interest  for  digital  television. 
 This  support  could  also  minimize  government  interference  in  the  process. 


 HOW  CAN  DIGITAL  COMMUNICATIONS  BETTER  SERVE  THE  PUBLIC 
 THAN  ANALOG? 


 Currently  broadcast  stations  have  several  public  interest  obligations.  They  must 
 provide  service  to  local  needs,  or  provide  programming  that  will  better  serve  their 
 communities.  Also  the  Childrens  Television  Act  of  1990  requires  that  broadcasters 
 establish  childrens  educational  programming  for  a  minimum  number  of  hours.  Political 
 broadcasting  is  another  obligation  that  serves  the  public  interest.  Broadcasters  are 
 required  to  provide  access  to  political  candidates  and  their  opponents  for  political 
 debates.  Closed  captioning  serves  the  blind  or  those  individuals  visually  impaired,  and 
 disaster  warnings  help  those  residing  in  areas  that  could  be  hit  by  storms.  Furthermore, 
 the  FCC  requires  that  broadcasters  provide  equal  employment  opportunities  to  applicants 
 and  employees. 
 With  such  current  public  interest  obligations  in  place,  the  public  should  at  the 
 very  least  be  afforded  the  opportunity  to  receive  such  benefits  from  digital  programming. 
 Thus,  digital  television  should  offer  more  benefits  than  what  the  public  is  already 
 receiving  from  analog  television.  Offering  more  channels  is  insufficient.  Those 
 individuals  living  in  certain  local,  urban  and  mountain  areas  should  benefit  more  from 
 such  a  costly  transition.  If  low  power  televisions  that  typically  provide  for  these  areas  are 
 unable  to  switch  to  digital  programming,  then  those  living  in  such  areas  gain  nothing.  If 
50
 digital  television  becomes  the  accepted  form  of  broadcasting,  low  power  televisions 
 would  be  forced  into  an  unfair  competition  with  digital  television.  Also,  this  competition 
 could  cause  an  economic  burden  of  attempting  to  switch  to  digital  programming,  thus 
 forcing  their  communities  to  do  the  same. 
 Digital  programming  offers  multiple  programming,  datacasting,  and  other 
 services,  yet  it  is  still  unclear  what  all  of  these  services  mean  to  the  public.  Internet 
 access  to  this  information  is  a  start,  but  the  public  needs  to  understand  what  digital 
 programming  is  exactly.  Public  opinion  polls  could  give  broadcasters  the  necessary 
 insight  into  the  public  mind  on  this  issue.  Television  advertising  could  help,  as  would 
 major  and  local  newspapers  advertisements.  The  Advisory  Committees  suggestion  that 
 digital  broadcasters  disclose  their  public  interest  programming  and  activities  is  also  a 
 sufficient  way  to  increase  public  knowledge  about  digital  television  and  what  it  has  to 
 offer. 


 WHAT  ARE  THE  NEGATIVE  CONSEQUENCES  TO  SWITCHING  TO 
 DIGITAL  TECHNOLOGY? 


 Of  all  the  information  I  have  read  on  the  subject,  I  have  been  unable  to  find 
 negative  information  that  would  impact  the  public.  I  have  learned  much  about  how 
 digital  technology  could  negatively  affect  local  broadcasters  and  low  power  television; 
 however,  I  am  still  unclear  as  to  what  the  public  concern  should  be  over  this  technology. 
 Public  concerns  over  such  mediums  tend  to  center-  around  expenses  and  what  their 
 children  could  be  exposed  to. 


 4 
 _I  -.  .  .  ._  .-^  .,_-  _  .-.  ._  ....  -_  _^.  ..,  .  .  .  -__~  -.-.  .--  l-.--_..  -*..^--  ~_-~ 
51
 The  first  of  these  concerns  is  expenses.  Will  digital  technology  simply  drain  the 
 publics  wallet?  As  it  stands  now,  the  majority  of  Americans  have  cable  television.  In 
 some  areas  having  a  television  that  was  not  cable  ready  is  often  useless  to  individuals. 
 Thus,  those  persons  are  forced  to  purchase  a  particular  type  of  television,  and  forced  to 
 pay  connection  fees,  and  the  monthly  service  fees  for  cable.  Digital  television  prices 
 range  from  $5,000  to  $16,000.  Cost  with  added  taxes  on  receiving  digital  technology 
 plays  a  major  concern.  Most  Americans  have  not  forgotten  how  just  a  few  years  ago  the 
 FCC  imposed  a  new  tax  on  all  communication  services  (telephone,  cell,  phones,  pagers, 
 etc.).  Therefore,  digital  television  as  it  stands  is  not  affordable  for  the  average  working 
 class  American.  This  problem  would  prevent  the  public  from  spending  such  a  vast 
 amount  of  money  on  a  digital  system;  thus  making  it  impossible  for  them  to  receive  the 
 potential  benefits  that  digital  television  may  have  to  offer. 
 Financial  concerns  probably  are  less  important  than  the  concern  for  Americas 
 children.  The  debate  over  what  television  currently  exposes  to  children  is  endless.  The 
 current  standards  governing  childrens  programming  is  satisfactory  for  analog  television. 
 However,  it  is  not  clear  that  these  standards  will  be  sufficient  for  digital  television.  The 
 same  concerns  will  likely  bleed  into  digital  programming.  The  Childrens  Television  Act 
 of  1990  requires  that  broadcasters  establish  a  minimum  number  of  hours  to  childrens 
 educational  programming.  Since  digital  television  offers  more  channels  than  does 
 analog,  it  should  be  required  to  offer  more  hours  to  childrens  programming.  However, 
 even  if  the  digital  television  dedicates  more  hours  to  programs  for  adolescents,  other 
 programs  children  could  be  exposed  to  presents  an  entirely  different  problem. 


 5 
52
 Given  the  number  of  new  channels  offered  by  digital  television,  children  are  more 
 likely  to  be  exposed  to  nudity,  sex,  and  violence.  The  violence  that  we  see  everyday  in 
 the  media  reveals  that  children  are  getting  mixed  messages  from  different  mediums. 
 Some  are  receiving  it  from  their  peers,  families,  and  even  in  school.  But  it  goes  without 
 argument  that  television  presents  probably  the  most  significant  source  of  these  problems. 
 It  is  important  at  this  early  stage  that  digital  broadcasters  begin  to  put  procedures  in  place 
 to  avoid  these  problems.  They  should  offer  policy  creating  parental  control  measures  to 
 combat  some  of  these  issues.  Therefore,  I  agree  that  a  public  file  should  contain 
 information  on  what  programming  has  closed  captioning  and  video  description.  This  file 
 could  become  a  significant  source  for  those  parents  concerned  about  bringing  digital 
 television  into  their  homes. 


 CONCLUSION 
 The  ultimate  dilemma  for  the  FCC  is  serving  the  public.  The  actual  transition 
 from  analog  to  digital  communications  technologically  has  never  been  an  issue.  The 
 FCC  has  done  an  excellent  job  at  attempting  to  make  this  transition  a  smooth  one  for 
 most  broadcasters,  especially  the  major  companies.  However,  broadcasters  acted 
 somewhat  prematurely  in  deciding  on  making  the  change  without  thinking  about  pubic 
 reaction  to  it.  With  present  public  interest  obligations  in  place,  broadcasters  should  have 
 been  more  alert  to  public  needs  concerning  digital  programming.  Offering  the  same 
 incentives  as  analog  televisions  simply  will  not  suffice  as  a  legitimate  reason  why  the 
 public  should  invest  in  digital  television.  It  must  offer  more  benefits  than  does  analog 
 television. 


 6 
 II  _  _  ._  ..-.  .  .  .  I-~  _.  ,,,  .-----  ___.  .,.--.- 
53
 People  with  disabilities  should  be  made  to  feel  that  digital  programming  could 
 make  their  already  challenging  lives  easier.  Parents  of  adolescent  children  should  not  be 
 concerned  that  digital  programming  will  contribute  to  the  existing  violence  and  drug  use 
 among  their  children.  Also,  broadcasters  should  find  ways  to  off  set  the  economic  burden 
 of  purchasing  digital  television  for  homes.  Digital  television  could  prove  to  be  one  of  the 
 greatest  technological  advances  known  to  America.  However,  the  FCC  must  find  ways 
 to  serve  the  publics  interest  as  well. 


 REFERENCES 
 1)  http:  Nwww.  digitaltelevision.  com/  law  1198n.  shml 
 2)  http:  Nwww.  digitaltelevison.  comIlaw  199p.  shtml 


 7 
 ---  ,  .  .-  ll.---...  l.  --._.. 
54
 To:  biagalie  Roman  Salas,  Secretary-  FCC 
 Fmm:  Amanda  Renea  Cox  MAR  2  3  2000 
 CC:  Professor  Glenn  H.  Reynolds 
 Date:  3-  1  O-  00 
 Re:  Comments  on  Proposed  Regulations  Co  nceming  Public  Interest  Obligations  of 
 Television  Broadcast  Licensees. 


 --~  -~  ~.~ 


 Dear  Secretary  Salas, 


 In  response  to  the  FCCs  request  for  public  comments,  65  Fed.  Reg.  4211,  w 
 Docket  No.  99-  360;  FCC  99-  3901  I  would  like  to  express  my  views  as  a  law  student, 
 who  has  always  been  and  will  continue  to  be  an  American  affected  by  television  and  the 
 power  of  the  media  As  I  understand  it,  the  FCC  would  like  comments  on  how 
 broadcasters  can  best  serve  the  public  interest  as  they  change  to  digital  transmission 
 technology.  Several  issues  within  the  notice  concerned  me  a  great  deal..  .specifically  the 
 disclosure  obligations  of  broadcasters,  how  broadcasters  can  utilize  the  Internet  to  be 
 more  responsive  to  the  needs  of  the  public,  and  enhancing  political  discourse. 
 Introduction  and  Background 
 It  is  evident  that  the  transition  to  digital  television  will  create  major  changes  and 
 numerous  new  issues  that  will  have  to  be  agreed  upon  in  order  to  ensure  that  broadcasters 
 meet  their  goal  of  serving  the  public.  Since  it  has  been  required  by  statute  that 
 broadcasters  serve  the  public  interest,  convenience,  and  necessity,  it  is  only  logical  to 
 ensure  that  they  continue  to  do  so  whatever  their  means  of  transmission  may  be. 
 However,  it  is  also  easy  to  recognize  that  as  society  and  technology  continually  change,  it 
55
 Amanda  chx-  3/  10/  00 
 becon~  more  diflkult  to  decide  how  bro&  asters  can  best  carry  out  this  statutory 
 mandate. 


 As  811  dogy,  I  ask  you  to  consider  for  a  moment,  the  Constitution  of  the  United 
 States  Tberearethoseamonguswhobelievethatitshouldbeinterpretedjustasitwas 
 writteq  while  others  like  myself,  believe  that  we  must  interpret  it  dBerently  as  times  and 
 circumstances  change.  Situations  evolve  daily  which  our  forefathers  could  never  have 
 predicted  nor  foreseen  Therefore,  it  seems  only  logical  that  we  must  read  the  intentions 
 and  meanings  behind  the  constitution  in  a  way  that  will  allow  us  to  apply  it  to  todays 
 changing  issues,  as  we  deem  appropriate.  I  see  the  transition  to  DTV  in  much  the  same 
 way.  This  is  a  change  that  will  have  different  effects  and  repercussions  and  must  be 
 treated  as  such.  Simply  allowing  licensees  to  continue  following  the  current  public 
 interest  rules  without  modification  will  firll  far  short  of  meeting  the  public  interest  goals 
 that  broadcasters  are  expected  to  meet. 


 Disclosure  Obligations  Should  be  Stricter 
 Guidelines  and  requirements  in  our  daily  lives  are  set  for  a  reason.  While  many 
 individuals  may  consider  themselves  disciplined  and  task-  oriented,  many  also  will  admit 
 that  without  deadlines,  it  is  quite  likely,  that  at  times,  a  project  would  not  be  completed. 
 Likewise,  it  seems  only  logical  that  by  requiring  broadcasters  to  disclose  information 
 regarding  pubic  interest  progr  amming  and  activities,  the  broadcasters  woukl  be  more 
 inclined  to  meet  what  is  expected  of  them  Requiring  broadcasters  to  disclose  such 
 information  on  a  quarterly  basis  does  not  seem  to  be  an  overly  burdensome  requirement. 
 It  seems  only  &ir  that  the  citizens  who  own  the  air-  ways  should  have  the  right  to  know 


 I  .--  ...  I  .  ..--  ._.--.  ._  ___.--  xII__  ..__.  .--  --..-.  *__  ._.  .~--  ._.------ 
56
 what  broadcasters  in  their  areas  are  doing.  Additionally,  in  a  period  of  transition,  hm 
 analog  to  digitd,  it  makes  sense  that  not  only  the  FCC,  but  citizens  as  well,  should  have 
 tbeabiitomonitorbroadc&  e&  actionsandtheprogramming  provided.  Tightening 
 thcnrlesabitto~  ethatbroadcastersate  livingup  tottaeiremlortfsedealis~ 
 fkom  unfkir,  especially  considering  the  major  advances  that  they  will  be  obtai&  g  from 
 DTV. 


 How  Broadcasters  Can  Use  the  Internet  to  be  More  Resr>  onsive  to  Public  Needs 
 In  addition  to  heightened  disclosure  obligations,  consider  this  for  a  moment..  . 
 wouldnt  it  be  wonder&  l  to  simply  log  on  to  the  Internet  and  make  suggestions  to  the  *. 
 broadcasters  in  your  area  about  the  types  of  programming  you  wished  to  s&  i-  p  the  local 
 events  you  wished  to  see  covered?  Wouldnt  it  be  even  more  amazing  to  think  that  those 
 stations  would  actually  take  such  comments  and  suggestions  into  consideration?  How 
 could  broadcasters  serve  the  community  better  than  to  listen  directly  to  the  comments  and 
 suggestions  made  by  its  communitys  citizens?  A  study  conducted  by  the  Media  Access 
 Project  and  the  Benton  Foundation  found  that  stations  devoted  only  one  third  of  one 
 percent  of  their  air-  time  to  local  public  affairs.  (www.  current.  org/  tech/  tech807g.  htmI)  If 
 that  is  truly  the  case,  are  those  stations  actually  donating  a  significant  portion  of  their 
 time  to  the  community  and  public  interest?  Wouldnt  it  be  interest&  g  to  find  out  exactly 
 how  those  stations  are  meeting  the  needs  of  the  public  interest  ifit  is  clear  that  they  are 
 not  doing  so  by  airing  local  public  affairs?  By  having  stations  disclose  how  they  meet 
 such  requirements  over  the  Internet,  no  question  would  remain.  Citizens  would  have 
 access  to  the  information,  and  in  addition,  could  make  suggestions  concern& 
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 Amanda  chx-  3/  10/  00 
 .-  . 
 progmmming  that  they  would  like  to  see  broadcast.  The  suggestion  in  the  notice 


 concerning  forums  in  which  the  public  could  post  comments  and  engage  in  an  ongoing 
 dialogueaboutthebroadcastersprogramming  isanabsolute~  sslperbicgea,  aad 
 certaidy  one  that  many  parents  would  waste  no  time  in  utilizing.  For  mstance  those 
 parents  who  feel  that  stations  are  broadcasting  too  many  programs  that  include  sex  and 
 violence  would  then  have  a  forum  which  would  allow  them  to  express  their  concerns  and 
 suggestions.  People  for  Better  TV  listed  the  number  of  acts  of  violence  that  an  18-  year- 
 old  will  have  witnessed  on  TV  at  200,000.  (www  bettertv.  orn/  factsheet.  htm)  Why  not  Sk 
 use  this  enormous  transition  t+  om  analog  to  digital  and  the  issues  surrounding  it  as  the 
 opportunity  to  decide  as  a  nation  what  should  be  done  about  the  televised  violence  and 
 sex  that  is  detested  by  so  many  Americans?  Could  DTV  and  the  technological  advances 
 not  be  used  to  solve  some  of  those  problems,  and  could  suggestions  for  solutions  to  those 
 problems  be  discussed  via  the  Internet?  If  DTV  will  actually  Yke  up  parts  of  the 
 broadcast  spectrum,  (www.  fcc.  gov/  mmb/  prd/  dtv/#  4)  why  couldnt  programming 
 containing  sex  and  violence  simply  be  separated  from  the  programming  that  does  not? 
 In  addition,  if  viewers  did  participate  in  forums  concerning  programming,  and  a 
 station  had  a  general  consensus  of  the  programmin  g  the  majority  of  its  viewers  wished  to 
 see,  how  could  it  go  wrong  by  broadcasting  much  of  that  programming? 


 Enhancing  Political  Discourse 
 Within  the  notice  there  was  a  question  raised  (seeking  comment)  as  to  what  steps  the 
 Commission  can  take  to  promote  vohmtary  efforts  to  enhance  political  debate  and  the 
 information  the  public  receives  concernin  g  candidates.  One  possible  step  would  be  that 
58
 AnIan&  cox-  3/  10/  00 
 the  Commission  stop  exempting  efforts  like  those  made  in  the  last  six  weeks  of  the  1996 
 presidential  campaign  The  notice  stated  that  the  Commission  exempted  those  e&  rts 
 fbm  the  equal  opportunity  requirements  becaux  they  wer8  viewed  as  an  on&  e-  spot 
 coverage  of  a  bona  fide  news  event.  Rather  than  completely  exempt  such  attempts  by 
 broadcasters  to  meet  their  public  interest  requirements,  could  the  Commission  not  reward 
 them  in  some  way  for  offering  free  airtime?  Furthermore,  although  the  majority  of  the 
 Committee  seemed  to  favor  requiring  broadcasters  to  provide  some  airtime  for  national 
 and  local  candidates,  just  the  thought  of  it  is  enough  to  run  shivers  down  an  Americans 
 spine.  If  broadcasters  are  required  to  broadcast  a  set  amount  of  time  to  candidates,  what 
 will  they  be  required  to  broadcast  next?  What  if  a  station  or  network  prefers  not  to 
 become  involved  in  airing  political  campaigns  or  advertisements,  but  decides  to  meet  the 
 public  interest  requirement  by  other  means?  What  if  those  means  are  more  applicable  to 
 that  station  or  networks  viewers  than  is  the  campaign  coverage?  Television  has  longed 
 been  viewed  by  many  (pun  intended)  as  part  of  Americas  feeling  of  freedom.  How  t?  e.  e 
 would  you  feel  as  a  broadcaster,  if  you  were  required  to  air  certain  amounts  of  political 
 coverage?  The  chances  are  that  the  major  political  campaigns  will  always  have  adequate 
 airtime  to  ensure  that  Americans  are  abreast  of  the  issues.  Local  campaigns  may  be 
 different  indeed,  and  receive  less  coverage,  but  if  we  had  forums  (say,  over  the  Internet, 
 as  suggested  earlier)  in  which  citizens  could  voice  their  opinions  concerning  the  amount 
 of  coverage  that  they  wish  local  politics  or  public  affairs  to  receive,  it  seems  unnecessary 
 to  have  requirements  imposed  on  broadcasters  in  regard  to  political  coverage.  One 
 might  wonder  what  would  follow..  .  saluting  that  Committee  perhaps  -  while  walking  a 
 Hitler&  h  march?  Allow  the  bro&  asters  to  chose  how  much  coverage  of  political 


 5 
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 Amanda  cox-  3/  10/  00 
 txmpigm  they  wish  to  pmvide.  Perhaps  offer  incentives  to  provide  free  air  time,  and 
 reward  such  e&  rt.  s  rather  than  exempt  them  completely.  Once  one  major  network 


 decides  to  hcus  on  the  political  campaign,  it  would  seem  likely  that  its  close  competitors 
 woukl  follow,  at  kast  somewhat.  Lets  not  ever  force  our  network  broadcasters  to  cover 
 politics. 


 Conchsion 
 DTV  seems  new  to  most  of  us.  It  will  change  many  aspects  of  the  televised 
 programming  and  affect  not  only  broadcasters  but  also  the  little  couch  potatoes  who  so 
 religiously  tune  in  to  the  set.  It  only  makes  sense  that  as  a  new  form  of  television  enters 
 our  homes,  that  a  new  set  of  rules  accompanies  it.  Perhaps  not  rules  for  the  every  day 
 soap  opera  addict,  but  for  the  network  that  broadcasts  all  of  the  shows  we  enjoy.  DTV 
 will  provide  many  opportunities  that  we  have  not  previously  been  offered,  and  to  require 
 DTV  to  simply  abide  by  the  same  rules  and  regulations  that  have  been  in  place  for 
 television  as  we  have  previously  known  it  seems  somewhat  of  an  inadequate  policing 
 system.  New  situations  are  bound  to  arise,  and  we  may  not  End  an  answer  in  such 
 instances  simply  by  referring  to  the  old  system. 
 As  a  law  student,  I  am  aware  that  my  knowledge  of  the  FCC  rules  and  regulations  is 
 somewhat  limited,  but  I  am  also  aware  of  the  power  of  television.  DTV  without  the 
 appropriate  guidance  and  regulation  could  become  the  kind  of  monster  that  gets  out  of 
 hand  much  more  quickly  than  we  could  imagine.  I  feel  that  by  making  the  citizens 
 aware  of  the  changes  that  will  be  occurring,  and  listening  to  the  responses  that  those 
 citizens  have  will  make  the  transition  to  DIV  occur  more  smoothly.  I  know  very  few 
 people  who  do  not  own  a  television.  It  is  part  of  our  independence,  yet  also  a  huge  part 


 6 
60
 Amanila  cox3/  1  woo 
 OfOur  aepenaenCe.  We  depend  on  it  fbr  news  coverage,  for  the  latest  issues,  for  weather 
 iafommtioo,  and  yes,  for  entertainment.  When  agencies,  committees,  and  commissions 
 that  the  average  citizen  knows  nothing  about  start  making  decisions  that  afkct  the 
 manner  in  which  that  television  fbnctions,  the  average  Joe  may  become  tightened.  By 
 setting  rules  to  govern  how,  what,  and  when  DTV  will  be,  those  fkrs  can  be  diminished. 
61
 To:  William  E.  Kennard,  Chairman  -  FCC 
 From:  Mary  Taylor  Gallagher 


 RECEIVED 
 MAR  23  2000 
 mI#  AKm 


 cc:  Professor  Glenn  H.  Reynolds 
 Date:  03/  l  7100 
 Re:  Comments  on  Proposed  Rulemaking  for  Digital  Transmission  Technology  MM  Docket  No.  99-  360 


 Dear  Secretary  Kennard, 
 In  response  to  the  FCCs  request  for  comments  on  how  broadcasters  can  best 
 serve  the  public  interest  as  they  transition  to  digital  transmission  technology,  64  Fed. 
 Reg.  4211,  (January  26,  2000)  I  want  to  communicate  my  views  as  a  law  student  and 
 as  a  member  of  the  public  who,  collectively,  has  given  television  broadcasters  free  use 
 of  our  airspace.  I  am  writing  to  encourage  the  FCC  to  establish  specific  guidelines 
 regarding  the  public  interest  obligations  of  digital  television  broadcasters.  Additionally,  I 
 strongly  urge  the  FCC  to  hold  public  hearings  regarding  these  issues.  After  all,  who  is 
 more  qualified  to  determine  the  public  interest  responsibilities  of  digital  television 
 broadcasters  than  the  public  who  not  only  watches  television  programs  but  also  owns 
 the  airwaves  over  which  those  very  programs  are  broadcast? 
 Introduction  and  Background 
 On  February  25,  2000,  the  Consumer  Electronics  Association  (CEA)  released 
 figures  indicating  that  for  the  fourth  consecutive  month  factory-  to-  dealer  sales  of  digital 
62
 televisions  (DTV)  exceeded  the  20,000  unit  mark.    Moreover,  since  DTVs  introduction 
 into  the  market  in  August  of  1998,  155,410  units  have  been  sold.  2  CEA  projections 
 indicate  that  by  2003  total  DlV  sales  will  be  in  excess  of  ten  million  units.  Whether  the 
 public  is  ready  or  not,  it  appears  that  DTV  is  here  to  stay. 
 Chances  are  that  the  majority  of  Americans  are  not  fully  aware  of  the  potential 
 benefits  and  the  possible  pitfalls  of  digital  television.  A  broadcasters  ability  to  transmit 


 five  or  more  channels,  as  opposed  to  the  single  analog  channel  currently  used, 
 dramatically  increases  the  amount  of  information  that  can  be  communicated  to  the 
 public.  The  resulting  educational  opportunities,  improvements  to  community  life  and 
 political  exposure  are  boundless.  Unfortunately,  the  same  connection  with  the  Internet 
 that  will  allow  television  to  become  interactive  might  also  expose  television  viewers  to 
 specific  marketing  techniques  and  ploys. 
 In  the  Final  Report  of  the  Advisory  Committee  on  Public  Interest  Obligations  of 
 Digital  Broadcasters,  submitted  December  1998,  the  Gore  Commission  noted,  [  t]  he 
 foundation  of  the  American  system  of  broadcasting  is  that  Congress  placed  the  basic 
 trust  and  responsibility  for  all  matters  of  broadcast  to  the  public  in  the  hands  of  the 
 station  licensee.  A  quick  look  at  the  development  of  television  in  the  last  sixty  years 
 shows  that  broadcasters  have  not  lived  up  their  end  of  the  bargain  and  that  its  time  for 
 the  public  to  demand  more  control  over  our  airwaves.  Television  programs  such  as 
 The  Jerry  Springer  Show  and  the  Howard  Stern  Show  are  axiomatic  of  the  direction 


   DTV  Sales  Start  Off  Strong  in  2000  (visited  Mar.  11,  2000) 
 http://  www.  dtvweb.  orcjnews/  press  release.  cfm. 
 2  Id. 


 2 


 .-.  I  ._  -  -  ._.  _...  ._.  I_.~_  _.  I..-  l.  l..-.  ___..  .------  -.- 
63
 in  which  television  is  headed.  Sex  and  violence  are  available  on  all  channels  at  all 
 hours  of  the  night.  What  indications  do  we,  as  the  public,  have  to  expect  anything 
 different  in  the  near  future? 
 The  proposal  of  Lowell  W.  Paxson,  Chairman  of  Paxson  Communications, 
 submitted  to  the  FCC  February  11,  2000,  suggests  that  broadcasters  voluntarily  adopt  a 
 Public  Interest  Code  of  Conduct  for  which  they  would  receive  such  incentives  as 
 renewal  expectancy  and  mandatory  carriage  of  the  licensees  digital  signal.  With  all  due 
 respect,  Chairman  Paxson  seems  to  be  forgetting  that  it  is  not  the  broadcasters  who  are 
 doing  the  public  a  favor,  but  rather  the  public  is  licensing  our  airwaves  to  them  free  of 
 charge.  Congress  has  mandated  that  broadcasters  programming  be  in  the  public 
 interest.  While  Chairman  Paxsons  Code  of  Conduct  certainly  is  noble,  with  the 
 exception  of  the  specific  time  limits  for  politically  centered  programming  during  an 
 election  cycle,  it  merely  promises  more  of  the  same  with  no  guidelines  as  how  to  fulfill 
 the  goals. 
 Jeffrey  Chester,  executive  director  of  the  Center  for  Media  Education  (CME) 
 made  an  astute  observation  in  a  recent  press  release.  In  1996  broadcasters  received 
 extremely  valuable  public  property-  worth  as  much  as  $70  billion  -  and  paid  nothing. 
 .  ..  giving  them  the  equivalent  of  free  beachfront  property  on  the  Information 
 Superhighway.  The  public  deserves  a  dividend  in  return.  3  For  more  than  half  a 
 century  broadcasters  have  in  fact  received  the  use  of  our  airwaves  for  free  and  it  is  time 


 for  the  public  to  determine  whether  broadcasters  have  lived  up  to  their  end  of  the 
 bargain. 


 3  Digital  Broadcasting  Must  Serve  Public  Merest  (visited  March  9,  2000) 
 http://  www.  cme.  or~/  press/  991215pr.  html. 


 3 
64
 It  is  incumbent  upon  the  FCC  to  take  a  more  hands  on  approach  with  respect  to 
 enforcing  the  congressionally  mandated  public  interest  obligations  or  risk  relinquishing 
 control  of  the  airwaves  to  the  digital  broadcasters.  Public  interest  obligations  should 
 attach  to  each  program  stream  offered  by  the  licensee.  According  to  Section  336(  d)  of 
 the  1996  Telecommunications  Act: 
 Nothing  in  this  section  shall  be  construed  as  relieving  a  television  broadcasting  station  from  its  obligation  to  serve  the  public  interest,  convenience,  and 
 necessity.  In  the  Commissions  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  ifs  program  services  on 
 the  existing  or  advanced  television  spectrum  are  in  the  public  interest.  (emphasis 
 added)  4 


 The  statutory  language  specifically  requires  that  all  of  a  broadcasters  program 
 services  be  in  the  public  interest.  With  the  transition  to  digital  broadcasting  and  the 
 opportunity  to  broadcast  on  five  or  more  channels,  broadcasters  should  be  not  be 
 allowed  to  fulfill  their  CTA  requirements  by  utilizing  only  one  channel.  Each  and  every 
 channel  must  be  used  to  serve  the  public  interest.  Therefore,  it  is  important  for  the  FCC 
 to  act  promptly  to  clarify  the  duties  of  the  digital  broadcasters  in  this  area. 
 It  only  seems  logical  that  as  the  number  of  channels  provided  to  a  broadcaster 
 increase  that  the  public  interest  obligations  should  increase  as  well.  As  such,  I  ask  the 
 FCC  to  begin  proposed  rulemaking  and  hold  public  hearings  in  two  specific  areas: 
 Childrens  Welfare  and  Free  Airtime  for  Political  Candidates. 


 4  47  U.  S.  C.  336(  d). 
 4 


 -.. 
65
 Childrens  Welfare 
 Digital  television  broadcasters  must  be  required  to  comply  with  the  Childrens  by 
 the  FCC  in  1996,  in  order  to  receive  or  renew  their  license.  5  Television  Act  (CTA), 
 passed  in  1990  and  strengthened  by  new  rules  established 
 On  average,  children  ages  3-  17  watch  more  than  three  hours  of  television  per 
 day.  Much  of  what  they  see  on  television  is  not  positive.  In  a  study  published  in  the 
 January  1999  issue  of  Pediatrics,  the  peer-  reviewed  scientific  journal  of  the  American 
 Academy  of  Pediatrics  (AAP),  the  authors  noted  the  following: 
 .  Young  people  view  an  estimated  10,000  violent  acts  each  year.  A  recent 
 National  Television  Violence  Study  examined  nearly  10,000  hours  of  television  programming  over  a  three-  year  period  and  found  that  61  percent  contained 


 violence,  with  childrens  programming  being  the  most  violent.  .  Each  year,  teenagers  view  nearly  15,000  sexual  references,  innuendoes, 
 and  jokes  of  which  less  than  170  will  deal  with  abstinence,  birth  control,  sexually  transmitted  diseases,  or  pregnancy.  The  so-  called  family  hour  of  prime  time 
 television  (8  to  9  p.  m.)  contains  more  than  eight  sexual  incidents  per  hour,  more  than  four  times  as  much  as  in  1976. 
 Alcohol,  tobacco,  or  illicit  drugs  are  present  in  70  percent  of  prime  time  ietwork  dramatic  programs,  38  out  of  40  top-  grossing  movies,  and  half  of  all 
 music  videos.  For  every  just  say  no  or  know  when  to  say  when  public  service  announcement,  teens  will  view  25  to  50  beer  and  wine  advertisements.  Tobacco 
 manufacturers  spend  $6  billion  per  year,  and  alcohol  manufacturers  $2  billion  per  year  in  all  media,  trying  to  entice  young  people  into  just  saying  yes.  16 


 In  addition,  a  study  done  by  the  FCCs  Childrens  Task  Force  merely  confirmed 
 what  most  researchers  and  educators  have  previously  suggested:  educational 
 programming  positively  affects  childrens  development,  particularly  the  development  of 
 those  who  have  not  yet  learned  to  read.  7  Shows  such  as  Mister  Rogers 


 5  47  U.  S.  C.  99  303(  a),  303(  b). 
 6  Article  Underscores  Media  impact  on  Children  and  Adolescents  (visited  March  16,  2000) 
 http://  www.  aap.  or~/  advocacv/  akhives.  html. 
   Federal  Communications  Commission,  Television  Programming  for  Children:  A  Report  of  the  Childrens 
 Task  Force,  Vol.  I,  at  20  (1979). 


 5 


 .  .I-.  ..-..  ._  _  .  I  .  -  --_-  .--_-..-  ~- 
66
 Neighborhood  and  Sesame  Street  reinforce  concepts  learned  in  school  while 
 presenting  the  information  in  a  fun  and  appropriate  manner. 
 Moreover,  low  income  and  minority  children  do  not  have  equal  access  to 
 alternative  sources  of  education.  Children  who  are  unable  to  attend  pre-  school  often 
 find  themselves  behind  on  the  first  day  of  grammar  school.  A  1989  Senate  Report 
 indicated  not  only  that  television  reached  ninety-  eight  percent  of  all  homes,  but  that  it 
 also  reached  ninety  percent  of  the  homes  with  an  annual  income  below  $5,000  dollars.   
 Developing  programs  in  compliance  with  the  CTA  is  crucial  to  the  furtherance  of  literacy 
 in  our  country  as  many  low-  income  children  are  first  exposed  to  the  alphabet  on  shows 
 such  as  Sesame  Street.  In  order  for  our  children  to  have  an  equal  start  in  life,  digital 
 broadcasters  must  play  their  part  to  establish  and  promote  educational  programs 
 designed  specifically  to  meet  their  needs. 
 Current  FCC  guidelines  developed  to  clarify  broadcasters  obligations  under  the 
 CTA  state  that  TV  stations  must  air  core  educational  programming.  To  qualify,  a 
 program  must  serve  the  educational  and  information  needs  of  children  aged  16  and 
 under  as  a  significant  purpose  and  must  be  a  regularly  scheduled  program  lasting  at 
 least  thirty  minutes  per  day  (three  hours  per  week)  and  aired  between  the  hours  of  7:  00 
 a.  m.  and  IO:  00  p.  m.  My  hope  is  that  the  FCC  would  consider  increasing  the  required 
 broadcasting  time.  With  so  many  channels  available  to  broadcasters  it  would  not  be  an 
 undue  burden  for  them  to  air  more  childrens  programming  over  our  airwaves.  In  a 
 national  survey  commissioned  by  the  Project  on  Media  Ownership  eighty  percent  of 


 *  S.  Rep.  No.  797,  101  Cong.,  1  Sess.  4  (1989)  (Senate  Report  accompanying  the  National  Endowment 
 for  Childrens  Educational  Television  Act)  at  12. 


 6 
67
 those  polled  favored  requiring  broadcasters  to  meet  certain  public  obligations  like  more 
 childrens  educational  programming  in  exchange  for  free  use  of  DTV  channels.  g 
 While  some,  including  Chairman  Paxson,  argue  that  extra  programs  should  be 
 aired  voluntarily,  advertisers  are  less  likely  to  buy  ad  space  during  childrens 
 programming  due  to  a  decreased  target  audience  and  the  low  numbers  of  actual 
 consumers  who  view  the  program.  Therefore,  broadcasters  will  have  little  incentive  to 
 air  large  amounts  of  educational  programming  because  they  will  be  at  a  competitive 
 disadvantage  compared  to  those  who  choose  only  to  meet  the  current  minimum 
 requirements. 
 Additionally,  I  urge  the  FCC  to  take  a  closer  look  at  the  programs  currently 
 permitted  to  satisfy  the  CTA  and  consider  altering  the  definition  of  core  programming  so 
 that  the  program  must  have  as  its  primary  purpose  the  educational  and  informational 
 needs  of  children.  Whats  more,  it  would  behoove  the  FCC  to  set  forth  specific 
 examples  of  programs  that  fit  the  educational  and  informational  needs  of  children.  As 
 I  understand  it,  under  the  current  definition  used  by  analog  broadcasters,  programs 
 such  as  The  Mighty  Morphin  Power  Rangers  qualify  as  educational  and  informational 
 programming.  While  this  show  may  be  entertaining,  I  fail  to  see  how  it  compares  with  a 
 program  such  as  Reading  Rainbow.  Perhaps  broadcasters  could  satisfy  the  public 
 interest  needs  of  the  local  community  along  with  those  of  children  by  visiting  local 
 historic  sites  or  taking  a  trip  to  the  zoo  or  nature  conservatory.  One  such  program  could 
 be  done  in  the  same  format  as  career  day  at  school  where  each  week  the  show  goes 
 to  a  different  job  site  to  see  what  a  fireman  or  a  park  ranger  does  each  day.  Not  every 
 program  has  to  teach  the  alphabet  to  be  educational.  However,  I  do  believe  that 


   Poll:  8  in  IO  say  commercial  broadcasters  should  aid  public  TV  (visited  March  16,  2000) 
 7 


 .  _  ._  _  _  _  ____    ..I  I  _  __..  _---__  _I  .I  .-.  ___~.__  .-  -,.-  ___----.---  -- 
68
 children  deserve  more  than  cartoon  programming.  I  recommend  that  the  FCC  to  take 
 seriously  the  requests  of  the  Center  for  Media  and  Education  and  develop  a 
 comprehensive  plan  for  the  expansion  of  mandatory  childrens  educational 
 programming. 
 Finally,  in  conjunction  with  childrens  programming,  I  propose  that  the  FCC 
 enhance  the  public  disclosure  requirements  for  broadcasters.  In  addition  to  making  a 
 quarterly  public  filing,  broadcasters  should  place  all  that  information  on  a  web  page  so 
 that  the  public  will  not  only  have  easier  access  but  will  also  have  the  chance  to  provide 
 invaluable  feedback.  The  development  of  interactive  web  sites  will  also  allow  the 
 broadcasters  to  keep  closer  tabs  on  the  needs  of  the  local  community  and  provide  a 
 public  forum  for  programming  discussions.  Along  those  same  lines,  I  ask  that  the  FCC 
 reconsider  the  ascertainment  guidelines  repealed  in  the  1980s  as  they  set  forth  specific 
 standards  for  broadcasters  on  consulting  with  various  community  leaders  and 
 identifying  and  addressing  community  needs. 
 Enhance  Political  Discourse 
 As  the  presidential  election  year  heats  up,  the  need  for  effective  and 
 informational  political  programming  becomes  more  apparent.  One  simply  has  to  tune  in 
 to  an  episode  of  David  Letterman  or  Jay  Leno  to  realize  that  a  vast  segment  of  the 
 population  is  dealing  in  serious  misinformation.  Returning  once  again  to  Chairman 
 Paxsons  proposal,  I  support  his  suggestion  that  television  stations  provide  five  minutes 
 per  night,  between  the  hours  of  500  p.  m.  and  1  I:  35  p.  m.,  in  the  thirty  days  prior  to  an 
 election  for  political  discourse  and  for  candidates  to  reach  the  voters.  The  transition  to 
 digital  broadcasting  presents  a  wonderful  opportunity  to  expand  political  coverage  and 


 8 
 _I--  .-..  ll  _    .,..  l.-  l  .  .._  _-..--.-.----- 
69
 allow  candidates  to  get  in  touch  with  the  voters.  While  I  would  like  to  see  mandatory 
 time  limits  on  childrens  educational  programming,  with  respect  to  enhanced  political 
 discourse,  I  am  only  advocating  for  voluntary  free  airtime  for  candidates. 
 Democracy  is  the  cornerstone  of  our  country.  In  light  of  that  fact,  political 
 candidates  should  have  the  opportunity  to  have  free  use  of  the  airwaves  to 
 communicate  directly  with  the  public.  Advertising  costs  for  candidates  have 
 skyrocketed  in  recent  years.  While  politicians  spent  $98  million  for  TV  time  in  1972, 
 costs  increased  to  $424  million  in  1996  and  are  expected  to  top  $600  million  in  2000.10 
 Moreover,  the  public  has  a  deep-  seeded  interest  in  gaining  full  exposure  to  the 
 platforms  of  each  candidate.  However,  the  FCC  should  limit  its  involvement  in  the 
 debate  over  free  airtime  to  asking  that  stations  voluntarily  observe  this  guideline.  Like 
 Commissioner  Furchtgott-  Roth,  I  question  the  FCCs  authority  to  regulate  the  electoral 
 process  without  legislation  passed  by  Congress.  Moreover,  a  recent  poll  of  Super 
 Tuesday  voters  conducted  by  Witthlin  Worldwide  showed  that  while  34%  support  free 
 time  mandates,  54%  oppose  the  mandates  with  12%  undecided.  Prior  to  initiating  the 
 rulemaking  process  regarding  required  free  airtime,  the  FCC  should  seriously  examine 
 whether  they  have  the  authority,  both  Constitutionally  and  under  their  operating  statute, 
 to  alter  the  electoral  process.  Given  the  results  of  the  Super  Tuesday  poll,  the  FCC 
 should  also  hold  public  hearings  to  find  out  if  the  American  people  support  them  in 
 requiring  broadcasters  to  give  candidates  free  airtime. 
 Additionally,  I  agree  with  Chairman  Paxsons  suggestion  that  the  stations  be  able 
 to  choose  the  candidates  and  the  races.  Forcing  broadcasters  to  give  all  candidates 


 lo  Is  five  Minutes  Too  Much  To  Ask?,  CHICAGO  TRIBUNE  (Feb.  17,  2000),  2000  WL  11966241. 
   Super  Tuesday  Voters  Satisfied  with  Local  Radio/  TV  Election  Coverage  (visited  March  14,  2000) 
 http://  www.  nab.  orn/  newsroom.  html. 


 9 
70
 free  airtime  raises  serious  First  Amendment  issues  as  the  FCC  would  in  effect  be 
 regulating  the  content  of  the  programs.  While  I  do  have  some  concern  that  not  all 
 stations  will  provide  equal  air-  time  to  the  candidates  and  will  therefore  provide  skewed 
 coverage,  stations  should  nonetheless  be  allowed  to  determine,  in  their  professional 
 judgment,  which  races  and  candidates  are  news  worthy.  Requiring  broadcasters  to  give 
 free  air  time  to  any  individual  claiming  to  be  a  candidate  could  open  a  veritable 
 Pandoras  box  with  candidates  crawling  out  of  the  woodwork  to  receive  free  TV  time. 
 Although  I  think  that  it  is  important  for  the  stations  to  cover  federal,  state  and  local  races 
 instead  of  focusing  on  just  one  area,  it  should  be  up  to  the  broadcasters  to  determine 
 how  best  to  serve  their  markets. 
 Conclusion 


 The  FCC  needs  to  act  quickly  to  determine  whether  digital  broadcasters  must 
 abide  by  any  additional  public  interest  obligations  in  exchange  for  free  use  of  the  public 
 airwaves.  Therefore,  it  is  imperative  that  the  FCC  hold  public  hearings  to  examine  the 
 need  for  proposed  rulemaking  before  the  time  comes  to  examine  license  renewal 
 applications.  Broadcasters  deserve  to  know  what  the  public  and  the  FCC  expects  of 
 them.  Thank  you  for  your  consideration. 


 Cordially, 
 Mary  Taylor  Gallagher 


 IO 
 -  .I  _,_  __-_.  -_-.--  - 
71
 Mm?  2  3  zuu(  j  Comment  to  Public  Interest  Obligations  of  Televis' 
 Broadcast  Licensees  65  FR  4211(  MM  Docket  No.  99-  360,  FCC 
 99-  390) 


 My  name  is  Amy  Paul  and  I  am  currently  a  third  year 
 law  student  at  the  University  of  Tennessee.  I  am  writing  to 
 comment  on  the  issue  of  regulating  digital  television  for 
 the  educational  benefit  of  children.  Although  I  currently 
 have  no  children  of  my  own,  I  have  observed  enough  of  my 
 relatives  to  know  the  tremendous  impact  that  can  be  made  on 
 a  child's  thinking  and  interaction  with  others  through 
 television. 
 In  seeking  a  license  to  broadcast  from  a  governmental 


 agent  a  broadcaster  is,  in  effect,  agreeing  to  uphold 
 certain  standards  in  programming  and  to  serve  the  public 
 interest.  l  This  is  a  great  responsibility  that  no 
 broadcaster  should  take  lightly.  While  I  realize  that 
 broadcasting  is  a  business,  and  as  such  is  primarily 
 concerned  with  making  a  profit2,  I  do  not  think  the  impact 
 which  television  has  on  our  young  people  can  be  easily 
 dismissed  or  discounted.  In  1960,  the  Commission  itself 


 1  See  Improving  Childrens  Television  Programming:  Hearings  on  H.  R.  3216  Before  the 
 Subcomm.  On  Telecommunications,  Consumer  Protection,  and  Finance  of  the  House 
 Comm.  on  Enexy  and  Commerce,  99th  Cong.,  1st  Sess.  3  (Oct.  25,  1985)  (statement  of 
 Representative  Bryant). 


 - 
72
 realized  that  children's  television  was  necessary  to  serve 
 the  public  interest.  3  This  is  probably  because  America  has 
 become  such  a  television-  oriented  society.  As  has  been 
 noted, 
 Children  spend  an  inordinate  amount  of  time  actively  paying  attention  to  television. 
 Television  has  enormous  potential  to  educate  and  socialize  our  children  in  ways  unlike  any  other 
 medium.  Television,  like  the  family,  church,  and  school,  has  a  powerful  influential  role  in  a 
 child's  development,  more  time  than  they  spend  in  the  classroom,  in  social  interaction  with  family 
 members,  or  in  any  other  activity  except  sleep.  Television  also  becomes  firmly  established  in 
 children's  lives  before  their  first  experience  in  formal  education  settings.  4 


 What  messages  we  allow  our  children  to  see  and  make 
 available  for  our  children  to  see  can  make  a  huge 
 difference  in  the  way  they  see  the  world. 
 It  is  because  of  this  that  such  a  great  burden  is  and 
 should  be  on  our  broadcasters.  Publicly  accessible 
 television  is,  for  some  children,  a  primary  source  of 
 education  and  entertainment.  There  are  currently  too  few 
 freely  accessible  educational  programs  available  for 
 children.  I  can  off-  hand  think  of  only  two  stations  that 
 currently  serve  any  sort  of  educational  purpose  for  our 


 2  R.  LIEBERT,  J.  SPRAFKIN  8a  E.  DAVIDSON,  THE  EARLY  WINDOW:  EFFECTS  OF 
 TELEVISION  ON  CHILDREN  AND  YOUTH,  16  (2nd  ed.  1982). 
 3  Report  and  Statement  of  Policy  Re:  Programming,  20  P.  &  F.  R.  R.  1901  (1960),  cited  in 
 Childrens  Television  Report  8&  Policy  Statement,  50  F.  C.  C.  2d  1,  4  (1974). 
 4  Alison  L.  Thorburn,  Regulating  Television  For  the  Sake  of  Children,  67  U.  Det.  L.  Rev. 
 413  at  428  (Spring  1990). 


 . 
73
 young  viewers:  PBS  and  Nickelodeon.  These  stations  have 
 consistently  tried  to  make  available  educational 
 programming  for  the  younger  audience.  However,  there  is  a 
 large  portion  of  the  viewing  public  that  does  not  have 
 cable.  That  narrows  down  the  educational  options  to  only 
 one.  That  is  simply  not  sufficient. 
 It  is  clear  that,  left  to  its  own  devices,  the  television 
 industry  would  like  to  ignore  the  need  for  educational 
 children's  programming.  5  Children  are  not  primary  consumers 
 after  all,  especially  very  young  children,  and  can 
 therefore  not  make  their  demands  known  by  the  use  of  their 
 pocketbooks.  6  Broadcasters  respond  to  the  type  of 
 programming  that  makes  them  money;  children's  television  is 
 not  the  largest  moneymaker.  As  it  has  been  demonstrated 
 time  and  again  that  when  left  alone  television  will  not 
 respond  to  the  needs  of  the  young  viewer,  it  then  becomes 
 obvious  that  in  order  to  serve  the  public  interest 
 broadcasters  must  be  required  to  make  children's 
 educational  programming  available. 
 This  need  for  educational  children's  programming  can 
 be  even  better  served  for  the  community  through  the  use  of 


 5  See  CHILDRENS  TELEVISION  TASK  FORCE,  F.  C.  C.,  1  TELEVISION  PROGRAMMING 
 FOR  CHILDREN:  A  REPORT  OF  THE  CHILDRENS  TELEVISION  TASK  FORCE,  26-  45 
 (1979)  (realizing  the  lack  of  financial  incentives  for  commercial  broadcasters  concerning 
 childrens  programming). 
74
 digital  television.  With  its  multicasting  capability, 
 digital  television  can  serve  the  interests  of  the  children 
 with  some  of  the  available  channels  while  leaving  the 
 others  for  more  "adult"  programming  or  there  is  always  the 
 option  of  setting  aside  small  increments  of  prime  child 
 viewing  time  on  a  vast  number  of  channels  in  order  to  serve 
 the  viewing  public. 
 The  public  interest  would  also  be  greater  served  if  a 
 few  of  the  channels  could  be  set  aside  for  data 
 transmissions  for  schools,  a  small  example  would  be  analog 
 television's  use  of  Channel  One.  Television  is  an 
 entertaining  learning  tool,  one  we  need  to  take  advantage 
 of  for  the  benefit  of  our  children.  There  are  many 
 subjects  that  could  be  easily  taught  in  this  format  if  only 
 the  opportunity  would  be  made  available.  Of  course,  there 
 is  always  the  risk  of  that  opportunity  going  unused,  but 
 that  is  no  reason  not  to  require  the  chance  to  use  it  in 
 the  first  place. 
 There  are,  of  course,  those  who  say  that  if  there 
 truly  was  a  demand  for  this  type  of  children's  programming 
 the  industry  would  have  met  it  by  now  so  as  not  to 


 6  1980  Proposed  Rulemaking,  75  F.  C.  C.  2d  138,  147  (1980)  (recognizing  broadcasters 
 lack  economic  incentives  for  childrens  programming). 


 _  ,-_-_-----..---..  -l..  l-_..  x  _-.-  -- 
75
 antagonize  the  viewing  audience.  7  The  parents  of  the 
 children  we  are  so  concerned  about  educating  would  have 
 voiced  a  public  outcry  to  make  broadcasters  respond.  That 
 argument  is  on  its  face  persuading,  but  we  need  to  look 
 behind  it  for  a  minute.  Is  it  really  a  practical  argument? 
 To  some  degree,  admittedly,  yes  the  logic  is  sound. 
 However,  the  children  that  public  broadcasting  would  serve 
 the  most  by  showing  educational  children's  programs  during 
 children's  viewing  times  are  those  children  whose  parents 
 may:  one,  not  care  about  what  their  children  watch  and  who 
 will  not  direct  their  children  to  the  more  youth-  oriented 
 programs;  two,  not  have  the  economic  power  to  purchase  the 
 extra  stations  that  might  provide  for  more  educational 
 programming  even  if  they  are  concerned;  or  three,  once 
 again  not  have  the  economic  power  to  threaten  broadcasters 
 with  if  their  programming  demands  are  not  met. 
 When  we  rely  on  the  market  to  dictate  the  programming 
 decisions,  we  are  in  essence  letting  those  with  the  buying 
 power  say  what  goes  on  the  air.  The  poor  citizens  are  not 
 well  represented  in  that  arena.  Those  viewers  who  do  have 
 the  "purse  power"  to  sway  broadcasting  decisions  will  more 
 than  likely  be  the  same  people  who  can  afford  to  supplement 


 7  See  Fowler  86  Brenner,  A  Marketplace  Approach  to  Broadcast  Regulation,  60  Tex.  L. 
 Rev.  207,  210,  239  (1982). 
76
 the  free  channels  with  pay  television  or  even  videos  when 
 public  television  does  not  meet  their  needs.  Thus,  there 
 is  no  public  outcry  because  the  needs  of  their  children  are 
 satisfied.  I  am  not  as  concerned  about  those  children  as 
 much  as  I  am  about  the  underprivileged  children  whose 


 parents  might  not  have  the  economic  clout  to  make  their 
 needs  known.  Of  course,  even  in  the  homes  of  middle-  and 
 upper-  class  families  there  is  still  the  risk  of  the 
 television  being  the  baby-  sitter  and  primary  educational 
 source  for  the  children.  Even  for  those  homes  there  needs 
 to  be  a  wider  array  of  educational  programming  available. 
 It  has  long  been  the  idea  that  there  are  some 
 instances  where  the  government  may  step  in  and  act  as 
 parens  patriae  for  the  nation's  children.  This  may  very 
 well  be  one  of  the  instances  where  that  intervention  is 
 needed.  However,  the  regulations  themselves  mean  nothing 
 without  some  way  to  back  them  up.  I  would  suggest  in  this 
 instance  allowing  broadcasters  a  certain  amount  of  time  in 
 order  to  get  their  programming  in  compliance  with  the 
 regulation,  perhaps  even  a  five-  year  period.  At  the  end  of 
 that  time,  when  their  broadcasting  license  is  up  for 
 renewal,  the  FCC  can  then  view  the  broadcasters  programming 
 history  to  see  if  they  have  been  in  compliance.  The 
 possible  sanctions  for  non-  compliance  could  be  fines  for 
77
 relatively  small  infractions,  delayed  license  renewal  with 
 the  opportunity  to  still  remedy  the  non-  compliance  for 
 slightly  larger  infractions,  as  well  as  larger  fines  and  a 
 possible  denial  of  license  renewal  for  the  egregious  acts 
 of  non-  compliance.  If  the  public  can  not  or  will  not  make 
 their  needs  known  to  the  industry,  then  it  is  up  to 
 government,  ultimately  the  agencies,  to  be  the  voice  that 
 needs  to  be  heard. 
 In  conclusion,  I  believe  that  there  is  a  demonstrated 
 lack  of  educational  programming  available  for  children, 
 especially  on  publicly  accessible  channels.  The  market  is 
 not  doing  enough  to  demonstrate  to  broadcasters  that  there 
 is  a  programming  need  that  is  not  yet  being  met.  With  the 
 dawning  new  age  of  digital  television,  it  becomes 
 increasingly  more  important  for  the  government  itself  to 
 step  in  and  let  that  need  be  known.  Publicly  available 
 television  is  a  powerful  market  with  which  to  demonstrate 
 to  children  the  desirability  of  getting  an  education  and  is 
 also  an  important  tool  with  which  to  help  satisfy  that 
 goal.  By  imposing  mandatory  children's  programming  upon  the 
 broadcasters  of  digital  television,  not  only  would  the 
 special  needs  of  America's  youth  be  served  but  also  the 
 needs  of  the  parents  who  otherwise  might  not  be  able  to  use 
 that  medium  for  the  best  interests  of  their  children. 
78
 NICOLE  C.  LALLY  1406  Agawela  Ave.  Apt.  C 
 Knoxville,  TN  37919  (423)  546-  l  551 
 lallync@  justice.  law.  utk.  edu 


 The  Honorable  William  Kennard 
 Secretary  The  Federal  Communications  Commission 


 445  12th  Street  SW  Room  TW-  A306 
 Washington,  DC  20554 
 RE:  MM  Docket  No.  99-  360  FCC  99-  390 


 March  15,200O 
 Dear  Chairman  Kennard: 


 The  following  comment  is  submitted  per  the  Federal  Communication  Commissions  [FCC] 


 request  for  comment  published  in  the  Notice  of  Inquiry  [NOI]  regarding  the  Public  Interest 
 Obligations  of  Television  Broadcast  Licensees,    65  F.  R.  42  1  l-  01.  As  a  concerned  citizen  and  a 
 registered  voter,  I  am  responding  to  your  request  for  public  comment  on  the  proposed  measures  for 
 enhancing  political  discourse.  The  proposed  additional  regulatory  requirements  are  ill-  advised  and 
 problematic,  because  (a)  the  FCC  should  not  mandate  additional  obligations  for  Digital  Television 
 [DTV]  broadcasters  from  which  other  forms  of  media  are  exempt;  (b)  mandating  that  broadcasters 
 provide  free  air  time  to  political  candidates  amounts  to  a  violation  of  the  United  States  Constitutional 
 Takings  Clause  [Takings  Clause];  and  (c)  allowing  the  station  to  decide  which  political  candidates 
 will  receive  air  time  is  impractical  and  will  only  lead  to  more  governmental  intervention  and 
 administrative  burden. 


 .I  _  .I  .  ..--..-  -_._-  _l~  l_-  -- 
79
 (A)  Additional  Requirements  for  DTV  are  Uniust  and  Stifling 
 The  DTV  broadcasters  are  making  the  transition  from  an  analog  to  digital  due  to  a 


 governmental  mandate.  Therefore,  because  this  transition  was  not  volitional,  it  is  unjust  for  the  FCC 
 to  impose  additional  requirements  on  DTV  broadcasters.  Although  DTV  broadcasters  could  have 
 made  the  transition  on  their  own  accord,  the  lack  of  governmental  involvement  would  have  allowed 
 them  to  transition  at  a  slower  pace  and  with  a  smaller  capital  investment.  Therefore,  because 
 governmental  intervention  has  already  made  a  greater  capital  investment  necessary,  it  follows  that 
 the  FCC  should  not  impose  additional  financial  burdens  in  the  form  of  mandatory  free  air  time. 
 Additionally,  the  evolution  of  DTV  is  by  no  means  a  windfall  for  the  industry.    Indeed, 


 [  llicensees  must  endure  considerable  expense  in  equipping  and  operating  two  stations  --  analog  and 
 digital  --  over  a  lengthy  period  of  time,  without  any  assurance  of  increased  audience  or  advertising 
 revenue.  While  the  government  has  provided  accessibility  to  the  digital  spectrum,  stations  are  still 
 responsible  for  financing  the  infrastructure  necessary  to  utilize  this  technology.  2  The  mere  fact  that 
 broadcasters  must  invest  huge  amounts  of  money  in  the  infrastructure  necessary  to  air  DTV  debunks 
 the  myth  perpetrated  by  supporters  of  imposing  requirements  of  mandatory  free  air  time  --  that  DTV 
 broadcasters  have  been  given  the  outright  gift  of  a  public  airway  and  should  therefore  not  object  to 
 any  additional  requirements  made  of  them.  A  true  gift  is  given  without  strings  attached,  and  the 


   See  Richard  E.  Wiley,  Proceed  With  Caution,  13  DTV  BUS.  (January  24,200O). 
 2  See  Public  Interest  Mandate  Under  DTVDebated,  TELEVISION  DIG.  (December  8, 
 1997)(  discussing  the  heavy  cost  of  switching  to  DTV).  One  broadcaster,  Belo  Broadcasting,  will 
 spend  more  than  $50  million  switching  to  DTV.  Id. 


 2 


 .._  -....  _..  _-...  ^  ..-.  --  -  .-_-  1-_~-._  1_-.-~.~-. 
80
 recipient  is  not  forced  to  take  it. 
 Moreover,  in  the  likely  advent  of  a  diverse  and  fiercely  competitive  video  marketplace,  DTV 


 will  soon  be  competing  with  other  forms  of  media,  such  as  cable  providers,  satellite  providers, 
 telecommunications  providers,  and  computer  operators.  Some  of  these  future  DTV  competitors  are 
 being  deregulated,  while  Congress  is  allowing  others  considerable  flexibility.  3  This  disparity  of 
 treatment  --  decreasing  regulation  of  DTVs  future  competitors  while  increasing  regulation  of  DTV 
 -  is  not  a  just  course  or  one  the  FCC  should  embrace. 


 DTV  should  not  be  burdened  with  additional  regulations,  not  only  because  it  is  would  be 
 unjust,  but  also  because  it  would  stifle  the  implementation  of  DTV  and  discourage  experimentation. 
 DTV  is  a  young  industry;  its  technology  and  service  are  both  new  and  evolving.  It  has  yet  to  firmly 
 establish  itself  in  todays  marketplace,  and  therefore  regulation  in  this  infantile  stage  could  possibly 
 impede  its  progress.  4  This  is  particularly  important  when  considering  that  the  DTV  transition  has 
 recently  gained  momentum;  the  FCC  has  recently  taken  action  evidencing  its  support  of  the 


 3See  Richard  E.  Wiley,  The  Digital  Television  Future,  COMM.  LAW.  (Fall  1998). 
 [  Ulnder  the  1996  Telecommunications  Act,  cable  is  on  its  way  to  being  substantially  rate 
 deregulated  once  again.  And  Congress  also  has  allowed  the  telephone  industry  considerable 
 flexibility  to  provide  in-  region  video  service  --  either  as  a  common  carrier,  a  cable  operator,  a 
 wireless  cable  provider,  or  under  a  new  open  video  service  model  in  which  telcos  can  carry 
 their  own  programing  as  long  as  they  make  capacity  available  to  non-  affiliated  program 
 providers. 


 4See  Wiley,  supra  note  3.  The  imposition  of  new  and  burdensome  regulatory 
 requirements  at  this  point,  when  the  success  of  digital  services  (i.  e.  HDTV,  SDTV,  data  and 
 interactive  offerings)  is  still  uncertain,  could  stifle  experimentation  and  slow  the  entire 
 implementation  of  digital  technology.  Id. 


 3 
81
 industrys  growth.  5  Therefore,  it  does  not  follow  that  the  FCC  would  now  take  action  which  would 
 impede  its  growth. 


 (B)  Mandating  that  Broadcasters  Give  Free  Air-  Time  is  a  Violation  of  the  Takings  Clause 
 The  Takings  Clause  of  the  Fifth  Amendment  to  the  United  States  Constitution  provides:  Nor 


 shall  private  property  be  taken  for  public  use,  without  just  compensation.  The  majority  of  the 
 Advisory  Committee  supports  --  and  Geller  et  al.  promotes  --  a  proposal  that  would  force  DTV 
 broadcasters  to  provide  political  candidates  with  free  air  time,  a  violation  of  the  Takings  Clause.  In 
 order  for  this  clause  to  apply,  several  criteria  must  be  met.  First,  the  property  must  be  private.  The 
 FCC  must  concede  that  the  television  air  time  of  privately  owned  and  operated  broadcasters  is 
 private  property  --  they  have  invested  a  huge  amount  of  capital  to  make  this  service  available  to  their 
 viewers,  and  the  sale  of  it  for  commercial  use  is  the  primary  means  by  which  broadcasters  earn 
 revenue.  Secondly,  the  property  must  be  taken  for  public  use.  The  FCC  must  concede  that  this  air 
 time  would  be  taken  for  public  use;  the  very  rationale  behind  mandating  that  broadcasters  relinquish 
 their  air  time  is  that  it  is  necessary  to  introduce  the  public  to  the  candidates  seeking  public  office. 


 See  Richard  E.  Wiley,  DTV:  Stay  the  Course!  DTV  BUS.  (March  2000).  The  FCC  is 
 encouraging  the  growth  of  the  DTV  industry:  [  Clable-  ready  DTV  sets  should  be  available  in 
 the  next  12-  18  months  .  .  .  ;  resolution  of  the  remaining  standards-  related  issues  .  .  .  appears 
 likely  in  the  relative  near  term;  the  modulation/  reception  concern  should  be  remedied  in 
 successive  generations  of  receiver  designs  (much  of  the  progressive/  interlaced  scanning  debate, 
 so  evident  a  year  or  two  ago,  has  faded  away  with  DTV  equipment  interoperability  progress);  a 
 wide  variety  of  digital  equipment,  both  consumer  and  professional,  is  now  available;  and  a 
 number  of  video  networks  --  broadcast,  cable,  and  satellite  alike  --  are  increasing  their  DTV 
 program  offerings  .  .  .  .  Id. 


 4 
82
 Finally,  the  property  must  be  taken  without  just  compensation.  The  FCC  must  also  concede  that  the 
 two  proposals  promoting  mandatory  free  air  time  do  not  include  an  offer  to  justly  compensate  the 
 broadcasters  for  their  private  property.  Therefore,  as  is,  the  proposals  could  not  pass  constitutional 
 muster. 
 If,  however,  the  FCC  agrees  that  political  candidates  access  to  the  public  through  privately 


 owned  and  operated  television  air  time  is  necessary  for  the  reasons  set  forth  in  the  NOI,  then  the  FCC 
 would  be  required  to  justly  compensate  the  private  broadcasters.  The  determination  of  the  air  times 
 value  would  require  research  into  the  fair  market  value  of  that  particular  block  of  time.  In  order  to 
 make  such  a  determination,  one  must  consider  factors  such  as  the  common  asking  price  for  the  block 
 on  that  specific  time  of  day,  day  of  week,  time  of  year,  as  well  as  any  special  events  that  the  station 
 is  broadcasting  which  may  affect  ratings.  This  very  elaborate  factual  determination  would  have  to 
 be  made  on  a  station-  by-  station  (case-  by-  case)  analysis  --  a  process  which  would  require  a  great  deal 
 of  agency  resources.  Furthermore,  compensating  broadcasters  in  this  manner  could  prove  to  be 
 prohibitively  expensive,  as  the  NAB  Report  states  that  in  one  election  cycle  its  broadcasters 
 voluntarily  devoted  $148.4  million  worth  of  air  time.  6 


 (C)  The  Proposal  is  Impractical  and  Will  Onlv  Lead  to  More  Governmental  Intervention 
 and  Administrative  Burden 
 The  proposals  purpose,  as  advocated  by  the  Gore  Commission  and  Geller,  et  al.,  is  to 


 %ee  NOI,  item  #35. 
83
 provide  more  political  candidates  with  access  to  air  time.  These  proposals,  if  implemented,  would 
 therefore  fundamentally  affect  the  electoral  process.  7  Surely  the  FCC,  as  an  unelected  body,  would 
 not  want  to  tamper  with  the  electoral  process,  as  Congress  is  the  sole  governmental  branch  entrusted 
 with  such  power.  Such  action  would  constitute  a  separation  of  powers  conflict,  in  that  the  executive 
 branch  would  be  exercising  powers  specifically  reserved  by  the  Constitution  to  the  legislative 
 branch.  For  an  executive  agency  to  exempt  a  Constitutional  Amendment  is  per  se  unconstitutional. 
 Additionally,  because  the  purpose  behind  adopting  these  proposals  is  to  affect  candidate 


 access  to  the  public  and  thereby  affect  the  electoral  process,  station  management  and  discretion,  as 
 proposed  in  the  NOI,  would  become  impractical.  Indeed,  involvement  in  the  electoral  process 
 signals  the  necessity  for  governmental  involvement.  One  can  easily  imagine  a  scenario  in  which  a 
 disgruntled  political  candidate,  who  was  denied  access  to  air  time  due  to  either  logistical  reasons 
 (only  so  many  candidates  could  logistically  be  allowed  access)  or  his  unpopularity  (broadcasters  as 
 a  rule  try  to  air  subjects  that  attract  viewer  interest),  would  attempt  to  redress  his  concerns  in  court. 
 A  tribunal  would  decide  that  because  governmental  action  had  mandated  that  candidates  have  access 
 to  the  air  time,  and  because  the  political  process  is  also  governmentally  supervised,  the  government 
 should  also  regulate  the  process  by  which  political  candidates  gain  access  to  the  air  time.  However, 


 7Commissioner  Powells  expressed  reservations  about  the  constitutionality  of  the 
 proposed  rulemaking.  Specifically,  Powell  said  that  he  had  grave  concerns  about  whether  the 
 FCC  should  act  issues  that  could  fundamentally  affect  the  electoral  process  without  specific 
 Congressional  direction.  Additionally,  Commissioner  Furchtgott-  Roth  stated  that  Congress  has 
 deliberately  decided  not  to  act  on  free  air  time,  and  therefore  he  asked  whether  the  FCC  should 
 become  involved  in  subsidizing  the  political  process.  CFCC  Opens  DTV  Public  Interest  Inquiry 
 Despite  Reservations,  COMM.  DAILY  (December  16,  1999). 


 6 
84
 several  questions  would  remain:  Which  governmental  entity  would  be  entrusted  with  the  decision- 
 making  process  ?  The  FCC?  The  FEC?  Local  government  ?  How  would  that  governmental  body 
 decide  which  candidates  receive  access  to  air  time?  Would  this  require  mandating  that  broadcasters 
 allocate  additional  free  air  time  out  of  their  broadcasting  day?  Would  the  governmental  entity  have 
 the  resources  to  allocate  to  the  decision  making  process  ?  Simply  put,  by  involving  private  entities 
 in  the  public  political  process,  the  FCC  would  be  opening  the  door  not  only  to  constitutional 
 challenges  but  also  to  increased  governmental  involvement  and  administrative  burden. 


 Conclusion 
 In  sum,  the  proposals  made  by  the  Gore  Commission  and  by  Geller,  et  al.  would  stunt  the 


 only  recent  progress  of  DTV  implementation,  impose  obligations  not  required  of  DTVs  competitors 
 in  the  communications  marketplace,  raise  such  constitutional  problems  as  a  Takings  Clause  violation 
 and  a  separation  of  powers  violation,  and  ultimately  require  more  governmental  interference  in  the 
 DTV  industry.  Additionally,  it  is  not  entirely  clear  why  the  advent  of  DTV  should  trigger  the 
 imposition  of  new  requirements  on  broadcasters.  The  NO1  recognizes  that  broadcasters  have 
 donated  a  considerable  amount  of  air  time  to  public  interest  matters8  a  definite  sign  of  successful 
 self-  regulation.  The  recommendation  proposed  by  the  FCC  (as  opposed  to  the  regulations  also 
 proposed)  would  encourage  broadcasters  to  devote  more  time  to  the  public  interest  and  allow  the 


 Specifically,  in  the  1996  election  cycle,  broadcasters  valued  their  time  at  $148.4  million, 
 and  several  large  networks  provided  free  air  time  to  presidential  candidates.  See  NOI,  item  #35. 


 7 
85
 young  DTV  industry  to  implement  these  recommendations  without  triggering  all  of  the  constitutional 
 and  pragmatic  problems  that  would  accompany  a  mandate. 


 Sincerely, 
 l&&  C. 
 Nicole  C.  Lally 
86
 TO  :  Chairman  William  E.  Kennard 
 FROM  :  Robert  R.  Kurtz 
 cc  :  Professor  Glenn  H.  Reynolds 
 DATE  :  March  16,  2000 
 RE  :  Comment  on  Proposed  Public  Interest  Obligation  of 
 Television  Broadcast  Licensees" 


 Dear  Chairman  Kennard, 
 In  response  to  the  Federal  Communication  Commission's 
 request  for  public  comment,  65  Fed.  Reg.  4211,  (January  26, 
 2000),  I  would  like  to  express  my  concerns  about  the  obligations 
 of  Television  Broadcast  Licensees  as  they  make  the  transition 
 from  analog  to  digital  television.  From  the  perspective  of  a 
 graduating  law  student  about  to  enter  the  private  sector,  the 
 potential  of  digital  television  to  affect  change  in  the  community 
 at  large  is  unmatched.  The  Federal  Communication  Commission's 
 [FCC]  Notice  of  Inquiry  noted  a  panoply  of  concerns  raised  by 
 various  special  interest  groups.  Based  on  the  "Gore  Commission" 
 recommendations,  the  FCC  Notice  of  Inquiry  sought,  in  particular, 
 comment  and  reaction  to  the  duties  or  obligations  of  broadcast 
 licensees  concerning  (1)  the  potential  effects  the  new 


 1 
87
 technology  has  on  children,  (2)  public  health,  and  (3)  greater 
 accessibility  to  technology  by  persons  with  disabilities.  I  am 
 writing  in  support  of  placing  greater  responsibilities  on 
 broadcast  licensees  as  they  make  the  transition  from  analog  to 
 digital  television. 


 Introduction 
 Digital  Television  holds  the  promise  of  providing 


 interactive  programming  in  every  home  in  the  country  who  cares  to 
 own  a  television.  Digital  Television  broadcasters  will  have  the 
 potential  to  transmit  more  data  into  a  household  than  ever  before 
 considered  possible.  The  combination  of  traditional  television 
 programming  coupled  with  Internet-  like  access  to  information  and 
 products  makes  Digital  Television  an  unmatched  tool  for  marketing 
 and  advertising-  l 
 Broadcasters  will  have  the  ability  to  target  individual 
 homes,  and  individual  viewers,  with  taste  specific 
 advertisements.  Broadcasters  will  have  the  ability  to  track 
 viewing  preferences  and  send  targeted  advertisements  directed  at 
 the  particular  viewer.  Rather  than  waiting  for  the  consumer  to 
 decide  to  purchase  a  product,  advertisers  will  be  able  to  take 


 The  Center  For  Media  Education-  http://  www.  cme.  org/ 
 2 
88
 advantage  of  impulse  buying  tendencies.  Broadcasters  and 
 advertisers  will  have  the  ability  to  send  specific  advertisements 
 to  a  consumer.  Through  interactive  programming,  the  consumer 
 will  be  able  to  change  screens  and  purchase  the  product 
 instantly.  This  tool  has  great  potential  in  helping  the 
 community,  but  it  also  has  great  potential  for  abuse. 
 Children  and  Disital  Television 
 The  1990  Children's  Television  Act  limited  the  duration  of 


 advertisements  directed  at  children  to  twelve  (12)  minutes  per 
 hour  on  week  days  and  ten  minutes  and  thirty  seconds  (10.5)  per 
 hour  on  weekends.  2  This  presents  a  serious  problem  when  applied 
 to  the  realm  of  Digital  Television.  While  it  is  fairly  easy  for 
 a  broadcaster  to  determine  the  number  of  minutes  advertisements 
 have  been  directed  at  children  per  hour  in  analog  broadcasts,  it 
 is  much  more  difficult  in  Digital  Television. 
 If  a  child  has  the  capacity  to  switch  screens  from  a  program 
 to  an  "Internet  like"  screen  for  interactive  communication  with  a 
 favorite  cartoon  character  on  a  commercial  site,  should  the 
 broadcaster  count  this  as  part  of  the  time  directed  at  children. 
 The  answer  must  be  an  unequivocal  yes.  Studies  have  shown  that 


 *Children's  Television  Act  codified  at  47  U.  S.  C.  A.  $303a. 
 3 
89
 children  are  more  susceptible  to  advertisements  than  adults.  3 
 Furthermore,  studies  have  shown  that  children  have  greater 


 difficulty  distinguishing  between  the  reality/  fiction  of 


 Inquiry  must  be  made  into  the  effects  this  type  of 
 interactive  programming  will  have  on  children.  The  specter  of 
 children's  individual  viewing  habits  being  tracked  and  then 
 targeted  by  advertisers  should  cause  adults  to  question  the 
 intrusiveness  of  this  tool  in  the  home.  Broadcast  Licensees  need 
 to  take  extra  care  to  assure  that  children  are  not  exposed  to 
 products  that  present  serious  risks  to  their  well-  being. 
 Public  Health 
 Directly  related  to  the  concern  for  children  interacting 


 with  Digital  Television,  is  the  obligation  of  broadcast  licensees 
 concerning  public  health.  As  the  Center  for  Media  Education  has 
 noted,  the  Internet  is  already  full  of  web  sites  and  web 
 advertisements  devoted  to  liquor  companies  and  tobacco 
 companies.  5  The  challenge  facing  broadcast  licensees  is  to 


 3The  Center  For  Media  Education-  http://  www.  cme.  org/ 
 4Childrens  Understanding  of  What  is  Real  on  Television- 
 http://  www.  aber.  ac.  uk/-  dgc/  realrev.  html 


 5The  Center  for  Media  Education-  http://  www.  cme.  org/ 
 4 
90
 guarantee  that  advertisements  are  targeted  at  the  appropriate 
 audience.  Tobacco  companies  have  been  banned  from  television 
 advertising  since  the  1970's.  Liquor  companies  have  voluntarily 
 limited  their  advertisements  for  many  years.  With  Digital 
 Television,  it  will  be  possible  for  a  consumer  to  switch  from  a 
 program  to  a  web  site  advertising  a  product  not  traditionally 
 advertised  on  television. 
 The  issue  is  whether  a  child  will  have  access  to  the  \\  Joe 
 Camel"  character  through  the  Internet  capacity  attached  to 
 Digital  Television.  If  this  threat  is  not  severe  enough,  it  is 
 quite  possible  that  Joe  Camel"  will  become  interactive,  and 
 entertain  children.  The  same  concerns  are  relevant  in 
 considering  adult  viewers. 
 Americans  across  the  nation  are  growing  more  unhealthy  every 
 year.  Popular  culture  continues  to  glorify  the  perfect  body,  but 
 in  reality  Americans  are  getting  larger  every  year.  Digital 
 Television  has  the  potential  to  increase  the  rate  of  America's 
 health  decline.  Cigarette  advertisements  will  be  available,  as 
 well  as  liquor  advertisements.  Consumers  will  now  have  little 
 reason  to  leave  their  homes,  as  Digital  Television  allows  people 
 to  shop  from  home.  Additionally,  the  relatively  few  broadcast 
 licensees  will  control  the  flow  of  health  related  information  to 


 5 
91
 the  public. 
 It  is  necessary  to  require  that  broadcast  licensees  dedicate 
 a  substantial  portion  of  broadcast  time  to  health  issues. 


 Digital  Television  has  the  technical  capacity  to  transmit  health 
 news  in  multiple  formats.  It  is  certain  that  the  more 
 information  available  to  the  public  in  varying  formats,  will 
 benefit  the  greatest  number  of  people. 
 Access  for  the  Disabled 
 Digital  Television  broadcasts  can  be  transmitted  in  several 
 different  levels.  A  broadcaster  will  be  able  to  broadcast  a 
 traditional  television  program.  At  the  same  time,  the 
 broadcaster  will  have  the  ability  to  overlay  that  program  with 
 other  information,  such  as  closed  captioning  or  other  services 
 related  to  allowing  access  for  the  disabled. 
 Broadcasters  should  be  required  to  provide  more  of  these 
 services.  People  For  Better  TV  [PBTV]  has  suggested  that  closed 
 captioning  and  descriptive  services  be  phased  in  over  the  first 
 four  (4)  years  of  a  stations  digital  broadcast.  PBTV  limits  its 
 recommendations  to  public  service  announcements,  public  affairs 
 programming,  and  political  programming.  6  These  recommendations 


 6People  For  Better  TV-  http://  www.  bettertv.  org/  dangers.  html 
 6 
92
 do  not  go  far  enough. 
 Digital  Television  can  revolutionize  technology  for  the 
 disabled.  Digital  Television  can  open  up  almost  unlimited 


 amounts  of  information  and  entertainment  for  the  disabled.  The 
 ease  of  access  Digital  Television  offers  is  unparalleled. 


 Broadcasters  should  be  required  to  expand  closed  captioning  and 
 descriptive  services  to  all  programming.  Four  years  will  provide 
 ample  time  to  phase  in  this  additional  information,  if  it  is  done 
 at  the  same  time  as  the  digital  system  is  developed.  Rather  than 
 bear  the  expense  of  retroactive  action,  broadcasters  should  be 
 required  to  add  these  services  at  the  same  time  they  provide  new 
 'traditional'  programming. 
 Conclusion 
 As  broadcast  licensees  begin  the  transition  from  analog  to 


 digital  television,  we  are  presented  with  a  unique  opportunity  to 
 make  some  necessary  improvements  for  the  public.  Digital 
 Television  Broadcasters  need  to  consider  the  potential  effects  on 
 children,  and  must  accept  stricter  standards  of  conduct  to 
 protect  the  nation's  children.  Broadcasters  also  need  to  be 
 aware  that  the  adult  population  is  at  risk  as  well.  Broadcasters 
 need  to  accept  greater  responsibility  in  providing  the  public 
 with  health  information.  Furthermore,  broadcasters  must  guard 


 7 
93
 against  the  invasion  of  advertising  dollars  from  tobacco  and 
 liquor  companies.  Finally,  broadcasters  must  assume 
 responsibility  for  providing  greater  access  to  the  disabled  with 
 the  advance  technology  available.  This  will  assure  that  a 
 significant  minority  will  have  greater  access  to  information  and 
 entertainment. 
 Thank-  you. 
 Robert  R.  Kurtz 
94
 March  11,  2000 
 The  Honorable  William  E.  Kennard  Chairman 
 Federal  Communications  Commission  445  lZth  street,  S.  W. 
 Washington,  B.  C.  20554 
 FE:  Public  Interest  Obligations  of  Television  Broadcast  Licensees 


 Dear  Chairman  Kennard: 
 I  am  a  third  year  law  student  at  the  University  of  Tennessee 
 College  of  Law  commenting  on  the  Proposed  Rules  for  the  Public 
 Interest  Obligations  of  Television  Broadcast  Licensees.  '  Although  I 
 am  somewhat  opposed  to  stricter  regulations  for  television 
 broadcasters  solely  based  on  the  conversion  to  digital,  I  do 
 understand  the  need  for  regulation  considering  the  enhanced  quality 
 of  television.  However,  I  believe  that  all  efforts  should  be  made  to 
 encourage  voluntary  efforts  on  the  part  of  broadcasters.  Because  the 
 future  of  knerica's  children  is  so  important,  if  stricter  regulations 
 are  deemed  necessary,  educational  programming  is  an  area  that  should 
 be  addressed.  Free  air  time  for  political  candidates  and  the 
 promotion  of  diversity  are  also  issues  of  such  critical  importance. 


 I.  Is  there  an  identifiable  need  for  further  regulation  of 
 television  program  content? 
 Under  the  Communications  Act  of  1934,  before  issuance,  renewal, 
 or  transfer  of  a  broadcast  license  there  must  be  a  finding  that  it 
 will  serve  the  public  interest.  To  this  end,  the  Commission  has 
 already  delineated  regulations  regarding  the  public  interest 
 obligations  of  broadcasters.  Are  stricter  regulations  required 
 simply  because  broadcasters  are  changing  from  analog  to  digital? 


 1 
95
 Many  would  argue  yes,  relying  on  the  new  technical  capability  and 
 improved  picture  quality  of  digital  television.  However,  considering 


 the  financial  burdens  that  have  been  placed  on  broadcasters  to  make 
 the  transition  from  analog  to  digital,  any  new  regulations  should  be 


 as  burdenless  as  possible. 
 Although  it  is  arguable  that  the  enhanced  quality  of  digital 
 television  requires  more  stringent  public  interest  obligations,  the 
 huge  costs  of  transition  endured  by  the  industry  suggest  that  a 
 different  course  should  be  taken.  Among  the  120  stations  in  the  top 
 thirty  markets,  the  average  allocation  for  equipment  expenditures  in 
 the  first  year  of  digital  adoption  was  "$  3  million  -  about  S-  five 
 percent  of  average  annual  revenues  of  $57  million."  '  Although  five 
 percent  may  seem  like  a  small  amount  when  compared  to  the  average 
 annual  revenue,  for  smaller  stations  the  burden  could  become 
 intolerable.  For  example,  many  smaller  stations  have  opted  to  sale 
 rather  than  incur  the  burdens  of  digital  conversion.  3  David  Woods, 
 owner  of  WCOV-  TV  in  Montgomery,  AL,  is  looking  to  invest  over  $4.5 
 million  over  the  next  three  years  in  station  that  he  paid  $4  million 
 for  thirteen  years  ago.  4  The  amount  he  is  required  to  invest  to  make 
 the  conversion  is  about  "100  percent  of  average  annual  revenue  for  a 
 station  in  markets  100-  150.5  Many  stations  have  had  to  petition 
 their  state  legislatures  for  funding  to  make  the  transition.  6 
 If  new  and  stricter  regulations  are  adopted,  they  will  apply 
 equally  across  the  board.  The  financial  burdens  of  additional  public 


   Notice  of  Proposed  Rulemaking,  Public  Interest  Obligations  of  Television  Broadcast  Licensees,  65  FR  4211  (Jan.  26,200O). 
 *  Deborah  McAdams,  The  Business  of  Digital  Television:  September  1998  -  Digital  Disparity  (visited 
 $u  f;  lZOOO)  <http://  www.  cligitatelevision.  com/  business998p.  shtml~. 


 4id.      Id. 
 6  See  Current  Briefing:  Public  TV  Goes  Digital  and  High-  definition:  How  will  public  TVpay  for  the 
 transition  to  DW,  (visited  Feb.  26,  2000)  <http://  www.  current.  org/  Qv/>. 


 2 
96
 interest  obligations  will  fall  most  heavily  upon  those  stations  least 
 able  to  afford  them.  These  stations,  because  they  are  typically 
 based  locally,  are  the  ones  who  offer  more  programs  in  the  local 
 public  interest.  Why  impose  additional  burdens  that  could  possibly 
 eliminate  valuable  broadcasters  who  already  serve  the  public 
 interest?  Furthermore,  the  Commission  claims  that  diversification  is 
 one  of  its  important  goals.  It  must  be  recognized  that  minorities 
 own  many  of  the  smaller  broadcasting  stations.  Additional  burdens 
 that  may  cause  the  sell  or  merger  of  minority-  owned  stations  defeats 
 the  Commission's  efforts  at  diversification. 
 Opponents  of  stricter  regulation  point  out  that  program  quality 
 cannot  be  regulated.  New  public  interest  obligations  could  result  in 
 added  low  quality  programming  of  marginal  public  interest  value.  If 
 any  new  regulations  are  to  be  instituted,  they  should  be  in  areas  of 
 prime  importance. 


 II.  Children  and  Television 
 The  Children's  Television  Act  of  1990  enables  the  Federal 
 Communications  Commission  to  prescribe  standards  regarding  children's 
 television  programming.  '  Congress  has  recognized  that  children  are 
 of  vital  importance  and  that  television  is  a  factor  in  their  healthy 
 development.  In  1999,  the  proportion  of  children  with  television 
 sets  in  their  rooms  reached  a  four-  year  high  of  48.2%.  '  The  average 
 total  time  children  spent  in  front  of  the  television  averaged  4  l/  2 
 hours  per  day  among  2-  17  year  olds.  '  This  data  underscores  the  fact 
 that  television  is  an  important  medium  that  influences  children. 


   47  U.  S.  C.  5  303a(  a)(  2000).  *  Jeffrey  D.  Stanger  and  Nataha  Gridina,  The  Anne&  erg  Pub.  Pol'y  Ctr.,  MEDIA  IN  THE  HOME  1999:  THE 
 FOURTH  ANNUL  SURVEY  OF  PARENTS  AND  CHILDREN  8  (1999). 
 Id.  at  9. 


 3 
97
 If  the  Commission  feels  that  stricter  regulations  should  be 
 imposed  on  broadcasters,  children's  television  is  one  area  that  is 
 important  enough  to  be  considered.  People  for  Better  TV  proposes 
 that  a  minimum  number  of  hours  each  week  should  be  set  aside  for 
 educational  programs  or  services,  which  might  include  data 
 transmission.  They  suggest  a  minimum  of  seven  hours  each  week." 
 This  could  be  accomplished  by  one  hour  each  day.  This  requirement 
 will  not  be  particularly  burdensome  considering  that  most 
 broadcasters  already  offer  this  much."  Raising  the  standard  will 
 also  not  be  particularly  burdensome  in  the  digital  age  because  of  the 
 increased  amount  of  prograrmning  available.  Broadcasters  must  now  air 
 three  hours  out  of  168  hours  of  available  programming  per  week.  With 
 the  advent  of  digital,  programming  capabilities  will  be  doubled. 
 Distribution  of  the  educational  programming  requirement  should 
 be  left  to  the  discretion  of  the  broadcasters.  For  instance,  those 
 broadcasters  who  choose  to  multicast  should  be  allowed  to  satisfy  the 
 requirement  on  one  program  stream  instead  of  having  to  distribute 
 programs  throughout  all  their  program  streams.  Broadcasters  are  more 
 knowledgeable  of  which  streams  would  be  likely  to  reach  the  greatest 
 number  of  children. 
 People  for  Better  TV  also  suggest  that  commercials  be  limited 
 during  children  s  programs.  Current  regulations  limit  the  "duration 
 of  advertising  in  children's  television  programming  to  not  more  than 
 10.5  minutes  per  hour  on  weekends  and  not  more  than  12  minutes  per 


 lo  Comment  by  People  for  Better  TV  by  Mark  Lloyd,  Counsel,  to  William  E.  Kennard,  Chairmaq  Federal  Communications  Commission  2  (Nov.  16,  1999)(  on  file  with  the  Federal  Communications  Commission). 
 l1  Data  from  the  National  Association  of  Broadcasters  compiled  in  1995,  showed  that  the  amount  of  educational  and  informational  programming  designed  for  children  had  increased  more  than  100  percent 
 between  the  fall  of  1990,  before  the  Childrens  Television  Act  took  effect,  and  the  f&  ll  of  1994.  National  Assoc.  of  Broadcasters,  NAB  Survey  Shows  More  Than  I  OO!%  Increase  in  Childrens  Educational 
 Programming  Since  1990,  (Oct.  12,  1995)  <http://  www.  nab.  org/  Newsroom/  PressRel/  Releases/  5295.  asp>. 


 4 
98
 hour  on  weekdays."  12  People  for  Better  TV  advocates  that  digital 
 broadcasters  be  limited  to  no  more  than  four  commercials,  no  more 
 than  sixty  seconds  long,  per  hour.  13  This  proposed  requirement  is 
 particularly  stringent  when  it  is  considered  that  advertising  is  the 
 way  in  which  broadcasters  generate  revenue  which  enable  them  to 
 broadcast  educational  programs.  Because  of  the  already  burdensome 
 costs  of  converting  to  digital,  I  suggest  that  additional 
 requirements  limiting  commercials  during  childrens  progranrming  be 
 postponed  until  a  later  date  when  thgr  are  found  to  be  necessary  and 
 feasible. 


 III.  Enhancing  Political  Discourse 
 The  Gore  Commission  focused  its  attention  on  encouraging  voluntary  efforts  on  the 


 part  of  broadcasters.  The  Gore  Commission  recommends  a  voluntary  standard  of  five 
 minutes  per  night  for  candidate  centered  discourse  thirty  days  before  an  election.  I4 
 Although  it  is  agreed  that  voluntary  efforts  should  be  encouraged,  a  more  beneficial 
 approach  would  be  to  grant  free  air  time  and  restrict  the  amount  of  total  air  time  a 
 political  candidate  would  have  for  advertising.  This  would  ensure  that  more  affluent 
 candidates  could  not  saturate  the  airwaves  just  because  they  have  more  funds  to  purchase 
 airtime  with.  However,  this  proposal  may  have  constitutional  limitations  and  may  be 
 better  addressed  by  political  campaign  reform. 
 Why  free  air  time  for  political  candidates?  Money  is  pervasive  in  todays  political 
 arena.  Those  with  a  good  message  but  less  money  are  at  a  disadvantage  when  compared 


 I2  47  U.  S.  C.  303a(  b).  13Comment  by  People  for  Better  TV  by  Mark  Lloyd,  Counsel,  to  William  E.  Kexmard,  Chairman,  Federal 
 Communications  Commission2  (Nov.  16.  1999)(  on  filewiththeFed&  Communications  Commission). 


 5 
99
 to  their  more  affluent  counterparts.  Free  air  time  would  equalize  their  positions.  Free  air 
 time  would  reduce  the  influence  of  money  in  politics.  It  would  help  underfbnded 
 challengers  make  their  views  known  to  the  public.  Also,  it  would  increase  and  improve 
 the  information  the  public  receives. 
 Many  would  argue  that  free  air  time  would  saturate  the  market  and  thus 
 discourage  people  from  participating  in  the  political  process.  I5  However,  a  1997  survey 
 by  the  National  Association  of  Broadcasters  showed  that  many  candidates  reject  free  time 
 due  to  political  considerations.  l6  Over  a  quarter  of  stations  had  debate  offers  rejected. 
 This  phenomenon  would  most  likely  continue  even  if  free  air  time  were  required. 
 Another  argument  that  is  advanced  is  that  more  free  political  advertising  would  mean 
 more  pressure  on  broadcasters  and  more  negative  campaign  ads.  However,  the  data  is  to 
 the  contrary.  In  a  1997  study  of  advertising  in  the  New  Jersey  Governors  Race,  the 
 Annenberg  Public  Policy  Center  concluded  that  there  is  a  relative  lack  of  attack  during 
 free  air  time.    The  Center  attributed  this  to  the  fact  that  [  wlhen  candidates  speak  on 
 camera,  they  are  more  accountable  for  the  messages  they  disseminate  and,  as  a  result,  less 
 likely  to  attack  their  opponents.  g  Because  the  time  given  to  candidates  is  free,  they  may 
 feel  more  responsible  for  the  content  of  their  messages. 


 l4  James  M.  Burger  and  Todd  Gzay,  The  Gore  Commission  Report  on  Public  Interest  Obligations  of  Digital  Broadcasters:  Self-  Regulation  andIncreasedFkxibility,  713  (visited  Feb.  28,200O) 
 <http:  www.  digitaltekvision.  com/  law199p.  shtml~.  I5  Se  National  Asscc.  c$  E?  twdcasters,  Issue  Papers,  Political  2000:  Campaign  Fhnce  Reform, 
 (June  1999)  <http://  www.  tvb.  or~~  litics/  campaign_  ref.  html>. 


   Id. 
 l7  Id.  Is  Paul  Waldman,  Anne&  erg  pub.  Poiy  Ctr,  Free  Time  andddvertising:  The  1997  New  Jersey  Governors 
 p;.  4  (Feb.  1998). 


 6 
 _  .-  _-  .__-.  .  -. 
100
 Most  importantly,  the  burden  on  broadcasters  will  not  be  great  because  they  are 
 already  offering  free  time.  An  April  1998  report  of  the  shows  that  the  projected  value  of 
 free  air  time  donated  by  television  and  radio  stations  and  national  networks  for  debates, 


 candidate  forums,  and  convention  coverage  was  about  $148.4  million.  20 


 IV.  Diversification 
 The  Commissions  efforts  at  diversification  are  noble.  As  of  1997,  minorities 
 owned  2.8  percent  of  all  broadcast  properties  in  the  United  States.  21  Lack  of  minority 
 ownership  can  probably  be  attributed  to  lack  of  access  to  investment  capital  and  historical 
 structures.  However,  the  Commission  has  recognized  that  policy  initiative  and  incentive- 
 based  programs  must  be  implemented.  If  one  of  the  Commissions  goal  is  to  further  the 
 public  interest,  diversification  serves  this  goal.  Minority  ownership  can  enhance 
 diversity  of  viewpoint  and  raise  minority  employment. 
 Although  the  Commissions  Notice  of  Proposed  Rulemaking  identifies  many 
 noteworthy  policies,  one  in  particular  is  worth  commenting  on.  The  Advisory  Committee 
 Report  recommends  that  out  of  the  returned  analog  spectrum  one  new  6  MHz  channel  be 
 reserved  for  purposes  such  as  educational  programming  directed  at  minority  groups.  This 
 plan  is  analogous  to  giving  AM  radio  stations  to  minority  owners  -  lesser  quality  and  a 
 smaller  audience.  As  an  African-  American  I  feel  that  it  is  suggested  that  I  should 
 appreciate  the  free  air  time  given,  even  if  it  is  of  lesser  quality  and  capability  than  digital. 


 *  National  Assoc.  of  Broadcasters,  A  Natl  Rep.  on  the  Broadcast  Industrys  Community  Serv.  (April  1998)  <http://  www.  broadcastpublicservice.  orgl1998/  default.  asp>. 
 *  Nat1  Tekcommunications  and  Information  Administration  Minority  Telecommunications  Dev.  Program,  Minority  Commercial  Broadcast  Ownership  Overview,  (visited  Mar.  10,200O) 
 <http://  www.  ntia.  doc.  gov/  reports97minority/  overview.  htm~. 


 7 


 -.  ._.  .  .,  __,_  I  .__,.  -_._  .__,.  -  .  --.-.-.  .-  I---  -  ..--.  II  - 
101
 Once  the  transition  to  digital  is  made,  only  those  without  the  ability  to  view  digital  will 
 rely  on  analog.  Therefore,  a  smaller  audience  will  be  the  result. 
 If  the  Commission  wants  to  give  minorities  greater  opportunities,  why  not  do  it  by 
 providing  more  funds.  Provision  of  more  funds  would  lead  to  the  accomplishment  of 
 several  goals.  First,  it  would  aid  minorities  in  purchasing  broadcast  stations.  Secondly, 
 minority  owners  are  more  likely  to  provide  entertainment,  news,  and  information  that 
 appeal  to  minority  audiences.  Thus,  a  wider  and  vastly  underrepresented  portion  of  the 
 population  will  be  served.  Finally,  minority  ownership  fosters  minority  employment. 


 V.  Conclusion 
 Any  additional  requirements  placed  on  broadcasters  should  be  in  areas  of  such 
 importance  that  they  cannot  be  ignored.  Increased  educational  programming  for  children, 
 free  advertising  for  pofitical  candidates,  and  the  promotion  of  diversity  in  the  form  of 
 investment  grants  are  important.  I  feel  that  these  issues  are  of  such  importance  and  so 
 vital  to  the  welfare  of  the  public  and  our  society  that  they  would  be  prime  targets  for  rule 
 making.  Please  consider  the  burden  that  will  be  placed  on  broadcasters  as  compared  to 
 the  benefits  to  be  gained  when  addressing  the  public  interest  obligations  of  broadcasters, 
 and  thus  address  only  issues  that  are  vital  to  the  welfare  of  the  public. 


 Sincerely, 


 Valerie  Latosha  Mason  3L 
 University  of  TN  College  of  Law 


 8 
 I.  .  .  .I-  __._-.  -  -__  .  ._.  .._  _.-.  I  .._.  ._.__._  l__.  l.___-__,__.  _ 
102
 To:  Federal  Communications  Commission 
 From:  South  Lewis 
 Re:  Proposed  Rulemaking 


 Date:  March  16,  2000 


 MAR  23  2000 


 INTRODUCTION  AND  BACKGROUND 
 I  am  responding  to  the  request  for  comment  by  the  Federal 
 Communications  Commission  regarding  the  public  interest  obligations  of 
 digital  television  broadcast  licensees.  (65  Fed.  Reg.  4211  (January 


 26,  2000)).  As  a  law  student  who  watches  a  fair  amount  of  television 
 (and  looks  forward  to  watching  even  more  after  I  graduate),  I  want  to 


 comment  on  three  particular  areas  of  proposed  licensee  responsibility: 


 I.  The  Market  Should  Decide  what  Television  Broadcasters  Offer 
 II.  Minority  Access  to,  and  Representation  in,  the  Television  Media 
 III.  Candidate  Access  to  Television 


 DISCUSSION 
 I.  The  Market  Should  Decide  what  Television  Broadcasters  Offer 
 Digital  television  capability  will  certainly  allow  broadcasters 
 to  enhance  the  services  it  provides  to  its  viewers.  This  enhancement 
 not  only  encompasses  the  quality  of  the  picture,  but  digital  television 
 technology  also  increases  the  number  of  viewers  that  can  be  reached. 
 To  many,  such  as  People  for  Better  TV,  these  technological  advancements 
 mean  greater  social  responsibillt  y  on  behalf  of  the  broadcasters.  I 
 propose  that  because  the  services  are  for  the  viewers,  and  the  market 
 is  made  up  of  the  viewers,  the  market  should  determine  the  obligations 
 of  the  digital  broadcasters. 
103
 There  are  existing  regulations  which  mandate  certain  obligations 
 that  analog  broadcasters  owe  to  the  viewing  public.  I  urge  this 
 Commission  not  to  impose  further  restrictions  on  the  broadcasters 
 merely  because  they  have  greater  technological  capabilities  through 
 digital  television.  I  am  of  the  belief  that  if  the  viewing  public  at 
 large-  the  market-  truly  demands  such  services  and  obligations  from  the 
 broadcasters,  then  the  broadcasters  will  respond  in  order  to  keep 
 viewers  from  seeking  their  competitors'  alternatives. 
 If  the  experts  are  correct,  digital  television  technology  will 
 allow  major  markets  which  currently  have  lo-  15  over-  the-  air  stations  to 
 add  40  to  60  new  television  channels.  '  Therefore,  digital  television 
 seems  to  result  in  more  competition,  which  ultimately  decreases  the 
 need  for  federal  regulation.  If  digital  television  had  the  effect  of 
 decreasing  the  total  number  of  broadcasters  and  channels,  then  perhaps 
 heightened  federal  regulation  would  make  more  sense.  However,  digital 
 television  clearly  increases  the  number  of  channels;  therefore,  if 
 broadcasters  choose  to  utilize  the  additional  channels,  the  market  will 
 force  them  to  expand  and  diversify  the  programs  and  services  offered. 
 The  ineffectiveness  of  mandatory  programming  has  already  been 
 exhibited.  In  1997,  television  stations  were  required  to  show 
 "educational"  programs  for  children.  The  broadcasters  were  forced  to 
 create  new  programs  to  meet  the  federal  standards,  which  limited  the 
 "educational"  programs  to  30  minutes  in  length.  The  Washington  Post 
 reported  that  every  single  program  was  a  failure.  Children  opted  for 
 Nickelodeon  and  other  cable  stations  over  the  federally  mandated 


 "educational"  programs  on  broadcast  television.  In  fact,  research 
 after  the  failed  programs  revealed  that  children  between  the  ages  2  and 
 17  were  watching  five  hours  a  week  less  television  than  their  parents 


 2 
104
 watched  when  they  were  children.  '  There  is  something  ironic  about  this 
 generation  of  children-"  the  couch  potato  generation/  '-  being  driven  away 
 from  television  by  federally  mandated  and  inspected  "educational" 
 programming  aimed  directly  at  children.  Statistics  such  as  these 
 support  the  proposition  that  the  market,  not  the  federal  government,  is 
 the  best  indicator  of  what  the  viewing  public  will  watch  on  television. 


 II.  Minority  Access  to,  and  Representation  in,  the  Television  Media 
 I  have  already  addressed  the  general  proposition  that  the  market 
 should  determine  what  services  and  programs  digital  television 
 broadcasters  offer.  I  wish  now  to  specifically  comment  on  the  Advisory 
 Committee's  call  for  more  diversity,  particularly  minority  involvement 
 and  representation,  in  television. 
 While  I  recognize  and  appreciate  the  call  for  more  minority 
 representation  on  television,  I  again  propose  that  the  market  is  a  more 
 effective  indicator  (versus  the  federal  government)  of  what  action 
 broadcasters  should  take  to  address  the  perceived  disparity. 
 Additionally,  I  subrr,  it  that  African-  Americans  are  not  really  under- 
 represented  on  television,  contrary  to  the  beliefs  of  the  Advisory 
 Committee  and  many  others;  if  African-  Americans  are  in  fact  being 
 proportionally  represented,  then  this  is  further  proof  that  the  market 
 is  keeping  the  broadcasters  "in  check"  and  is  effectively  driving  the 
 television  programming. 
 We  are  all  aware  of  the  belief  of  numerous  civil  rights  groups 
 that  minorities  are  not  fairly  represented  in  television.  I  realize 


 that  Vminority"  does  net  refer  only  to  "African  American";  however, 
 African-  Americans  are  the  class  that  I  most  often  hear  of  as  the  under- 


 '  http://  reason.  com/  9804/  col.  powell.  html 
 =  Id. 
105
 represented  class  on  television.  Darnell  Hunt,  Professor  of  Sociology 
 at  the  University  of  Southern  California,  recently  conducted  a  five 
 week  study  of  the  comedy  and  drama  series  that  aired  on  NBC,  ABC,  CBS, 


 Fox,  and  the  2  newer  networks.  "Hunt  found  that  blacks  were 
 numerically  well  represented.  Blacks  make  up  12.2  percent  of  the  U.  S. 
 population  but  accounted  for  nearly  16  percent  of  the  characters  seen 
 on  the  six  networks  during  the  period  reviewed.#  13  Fox  and  NBC  have  10 
 percent  and  11  percent  African-  American  character  representation  on  its 
 programs,  respectively;  on  the  other  hand,  nearly  15  percent  of 
 characters  on  ABC  series  and  13  percent  of  CBS  characters  are  African- 
 American.  4  These  statistics  further  show  how  the  market  effectively 
 works:  those  broadcasters  that  have  the  demand  for  certain 
 representation  on  its  channels  provide  such.  Broadcasters,  as  we  are 
 aware,  are  money-  making  entities  that  respond  to  market  demand  in  order 
 to  protect  their  market  share  and  profit  margin.  Therefore,  I  am  of 
 the  belief  that  market  demand,  not  federal  demand,  creates  a  better, 
 more  diversified  product. 
 The  call  for  additional  rulemaking  that  would  "strongly 
 encourage"  more  minority  representation  among  broadcast  licensees 
 essentially  ignores  other  important  sources  of  information  and 
 entertainment.  Just  as  many  policy  makers  assert  that  there  is  a 
 "racial  divide"  in  television,  there  still  exists  the  misguided  belief 
 that  there  is  also  a  "racial  divide"  on  the  Internet.  With 
 reinforcement  of  this  idea  in  the  media  (and  from  the  White  House), 
 even  the  well-  informed  have  come  to  believe  in  the  "digital  divide."  ' 


 The  United  States  Commerce  Department  incorrectly  supported  this 
 "digital  divide"  by  the  results  of  its  1998  survey,  which  determined 


 3  http:  llwww.  washingtonpost.  com/  wp-  srv/  apon~  inel2OOOO225~  aponlineO1  1027-  OOO.  htm 
 4  Id. 


 4 
106
 that  minorities  had  less  access  to  the  Internet  in  their  homes. 
 However,  the  survey  did  not  account  for  access  to  the  Internet  at  work 
 and  school."  A  survey  by  the  Pew  Research  Center  for  the  People  in  the 


 Press  revealed  that  62  percent  of  working  Americans  obtain  Internet 
 access  at  work,  while  75  percent  of  students  get  online  at  school.  ' 
 Such  studies  demonstrate  that  many  Americans,  both  minority  and  non- 
 minority  alike,  gather  news  directly  off  of  the  Internet.  Hence, 
 television  is  not  necessarily  the  primary  source  of  news  for  many 
 Americans. 
 The  evidence  suggests  that  the  Federal  Communications  Commission 
 needs  to  take  no  steps  to  force  or  "strongly  encourage  the  digital 
 broadcasters  to  distribute  public  interest  information  on  alternate 
 mediums,  such  as  on  the  Internet.  The  statistics  show  that  a  majority 
 of  the  public  uses  the  Internet  at  least  as  frequently  as  television. 
 Reasonable  business  owners  (the  broadcasters)  will  certainly  avail 
 themselves  of  the  online  medium,  as  it  is  almost  another  form  of 
 television.  Currently  some  personal  computers  cost  less  than 
 televisions  and  Internet  access  is  certainly  cheaper  than  cable,  if  not 
 free.  6  With  so  many  options  that  digital  technology  will  provide, 
 broadcasters  are  forced  to  either  provide  programs  and  services  to 
 minority  consumers  or  risk  losing  those  viewers  to  the  willing 
 competitors. 
 Finally,  the  last  point  that  I  wish  to  make  on  this  topic.  I 
 realize  that  federal  licensees  can  be  rightfully  restricted  and 
 "encouraged  by  the  FCC.  However,  licenses  granted  due  to  race-  based 
 restrictions  and  incentives  are  subject  to  a  standard  of  strict 


 5  http://  reason.  com/  991  l/  fe.  ap.  falling.  html 
   Id. 
   Id. 
 *  Id. 


 5 
107
 scrutiny."  I  assert  that  the  more  feasible  approach  (and  the  "stay  out 
 of  court  approach)  is  to  allow  the  market  to  drive  the  type  of 
 programming  offered  by  the  digital  broadcasters. 


 III.  Candidate  Access  to  Television 
 In  the  midst  of  a  heated  campaign  primary  season,  I  am  confident 
 that  most  of  us  appreciate  the  need  for  open  political  discourse  on 
 television.  Television  airtime  for  candidates  is  not  cheap;  for 
 example,  in  an  average  Senate  race,  60  percent  of  a  candidate's 
 campaign  funds  are  spent  on  broadcasting  (including  radio  airtime,  as 
 well)  .  lo  However,  I  assert  that  requiring  free  airtime  to  political 
 candidates  will  not  increase  political  discourse  and  will  do  no  great 
 service  to  the  American  television  viewers-  the  market. 
 Fox  tried  a  political  "experiment"  in  the  1996  election.  It 
 provided  30  minutes  of  free  airtime  on  the  eve  of  the  presidential 
 election  and  10  l-  minute  segments  in  the  month  before  the  election.  ll 
 Apparently,  Fox's  "experiment"  was  no  great  success.  The  Anneberg 
 Public  Policy  Center  survey  showed  that  fewer  voters  were  reached  by 
 the  method  used  by  Fox  than  by  paid  advertisements,  debates,  and  other 
 forms  of  candidate  campaigning.  l'  Even  if  all  of  the  broadcasters  were 
 forced  to  donate  airtime  to  candidates,  I  think  the  outcome  would  still 
 be  the  same.  One  problem  that  I  anticipate  is  that  if  the  broadcasters 
 donate  short  segments  prior  to  the  campaign,  there  is  no  guarantee  that 
 viewers  will  be  present.  As  previously  mentioned,  many  Americans  get 
 their  news  from  sources  outside  of  television.  My  concern  is  that  in 
 the  near  future  the  federal  government  will  attempt  to  regulate  every 


 9  Adarand  Contructors,  Inc.  v.  Penn.  5  15  U.  S.  200  (  1995);  http:/  lwww.  thebba.  org$  NTIA.  html 
 lo  www.  senate.  govi-  dpclcrslreportslascii/  97-  680 
   Id. 
   Id. 


 6 
108
 source  of  news.  Senator  John  McCain,  who  thinks  favorably  of  airtime 
 donations,  even  shares  some  of  my  concern.  "What  prevents  them  from 


 saying,  'You've  got  to  give  free  time  to  the  next  FCC  hearing,  or  the 
 Commerce  Committee  chairman's  next  speech?"  McCain  asked  The  New  York 


 Times.  "Where  does  it  end?"" 
 My  experience  is  that  most  network  broadcasters  already  dedicate 
 a  sufficient  amount  of  time  to  political  discourse  and  candidate 
 airtime.  There  are  numerous  political  "Sunday  morning  shows,"  such  as 
 Meet  the  Press,  Face  the  Nation,  and  Fox  News  Sunday,  which  battle  each 
 other  for  viewers.  Those  shows  are  definitely  driven  by  the  market.  I 
 certainly  have  noticed  no  shortage  of  coverage  for  the  four  leading 
 Presidential  candidates.  I  understand  the  counterargument:  the  purpose 
 of  the  proposed  airtime  is  not  to  benefit  the  popular  candidates,  but 
 rather  the  unpopular  candidates.  Although  not  a  problem  in  the  current 
 Presidential  election,  there  could  be  a  problem  with  some  of  the  local 
 political  races.  Every  candidate,  even  the  fringe  candidates  with 
 little  support,  would  be  entitled  to  free  airtime.  It  would  be  very 
 difficult  for  the  broadcasters  to  draw  the  line.  Allowing  every 
 candidate  free  airtime,  especially  in  the  local  elections,  may  have  the 
 unintended  consequence  of  driving  people  away  from  gathering  candidate 
 information  on  television.  Candidates  may  actually  not  value 
 television  time  if  it  is  given  to  everyone.  It  may  have  the  effect  of 
 forcing  candidates  to  spend  more  money  and  find  different  mediums 
 through  which  they  can  campaign.  Therefore,  I  propose  that  the  market 
 will  be  the  most  effective  indicator  of  which  candidates  need  more 
 airtime.  The  higher  number  of  viewers  will  reward  those  broadcast 
 channels  which  meet  the  market  demand. 


 I3  http://  reason.  com/  9804/  col.  powell.  html 
 7 
109
 The  Supreme  Court  has  recognized  the  government  s  interest  in 
 putting  restraints  on  licensees.  14  Additionally,  the  Court  has  upheld 
 the  statutory  right  of  access  by  political  candidates  to  airtime.  I' 
 However,  I  doubt  CBS  supports  the  proposition  that  political  candidates 
 are  entitled  to  free  airtime. 


 CONCLUSION 
 I  urge  the  Commission  to  consider  the  ramifications  and  likely 
 effects  of  further  regulations  upon  digital  television  licensees. 
 While  I  fully  trust  that  the  Commission  intends  to  act  in  the  best 
 interests  of  the  viewing  public,  I  fear  the  unintended  consequences  may 
 be  the  opposite  of  the  Commission's  desired  result.  Digital  television 
 licensees  can  do  much  more  in  terms  of  technology;  therefore,  the 
 market  will  create  a  demand  for  more  diverse  services.  As  a  member  of 
 the  viewing  public,  I  would  rather  watch  the  stations  that  respond  to 
 market  demand  upon  their  own  initiative-  not  the  stations  that  act 
 solely  because  of  federal  regulation.  The  market  may  actually  respect 
 and  reward  those  stations  that  show  initiative.  Thank  you  for  your 
 consideration  of  my  comments. 


 I4  Red  Lion  Broadcasting  Co.  v.  FCC,  395  U.  S.  367  (1969). 
   Columbia  Broadcasting  System  (CBS)  v.  FCC,  453  U.  S.  367  (1981). 


 8 
110
 March  1% 
 .  MAR  2  3  2000 


 m  Federal  Communications  Commission 


 47  CFR  Part  73 
 MM  Docket  No.  99-  360;  FCC  99-  390 
 Public  Interest  Obligations  of  Television  Broadcast  Licenses 
 Re:  Enhancing  Political  Discourse 
 The  FCC  Should  Promulgate  Specific  Obligations  for  Television  Broadcasters  in 
 Order  to  Facilitate  Political  Discourse 


 In  the  notice  of  proposed  rulemaking,  the  FCC  inquired  into  how  the  quality  of 
 political  discourse  could  be  improved.  While  the  agency  did  not  propose  any  rules  or 
 policies  in  the  notice  of  inquiry,  the  FCC  correctly  wished  to  initiate  a  public  debate  on 
 the  question  of  whether,  and  how,  the  broadcasters  public  interest  obligations  can  be 
 refined  to  promote  democracy  and  better  educate  the  voting  public.  This  public  debate 
 is  necessary  to  emphasize  the  current  lack  of  political  discourse  provided  by  broadcasters, 
 especially  in  the  local  political  sense. 
 This  comment  comes  from  a  concerned  law  student  who  feels  that  television 
 broadcasters  are  not  actively  attempting  to  provide  sufficient  political  discourse  for  the 
 public.  As  a  prime  example  of  this  position,  I  refer  to  the  recent  primary  election  for  the 
 state  of  Tennessee.  During  the  weeks  before  the  primary,  the  only  election  that  received 
 any  significant  broadcast  attention  was  the  presidential  primary.  The  relatively  few  local 
 elections  received  scant,  if  any,  recognizable  broadcast  time. 


 1 
 --  ,  _-...  __.~  ..--  ----..  .--- 
111
 This  comment  acknowledges  that  there  are  elections  other  than  the  presidential 
 election.  In  addition,  these  local  elections  may  play  a  far  more  direct  role  in  local  voters 
 lives.  While  this  comment  concedes  that  there  are  often  numerous  elections  to  cover, 
 local  elections  need  broadcast  time  in  order  for  the  public  to  be  sufficiently  aware  of 
 candidates  and  even  more  basically,  the  elections  themselves.  The  only  way  to  provide 
 sufficient  broadcast  time  for  all  political  candidates  is  for  the  FCC  to  promulgate  specific 
 and  detailed  requirements  for  broadcasters  public  interest  requirements. 
 Promotion  of  Democracy 
 One  Man,  One  Vote.  This  short  maxim  is  a  bedrock  principle  of  our  nation. 
 Every  instance  where  one  group  has  tried  to  take  away  that  vote  has  caused  severe 
 outcries  throughout  society.  The  beginning  of  the  maxim  was,  One  Free  Property 
 Owning  White  Man,  One  Vote.  This  early  construct  quickly  evolved  throughout  the  next 
 225  years.  Soon  after  the  Civil  War,  the  maxim  became  One  Man,  One  Vote.  Yet,  there 
 were  still  those  who  tried  to  keep  certain  groups  from  voting.  After  some  of  these 
 problems  were  rectified,  the  maxim  became  One  Person,  One  Vote.  While  this  was  not 
 the  original  meaning  of  the  maxim,  our  current  nation  is  based  on  the  fact  that 
 EVERYONE  has  the  power  to  influence  the  system.  Implicit  in  this  simple  maxim  is  the 
 idea  that  an  informed  electorate  is  better  able  to  make  a  wise  decision.  In  order  for  the 
 electorate  to  become  sufficiently  informed,  the  public  must  have  access  to  information. 
 However,  the  public  does  not  just  need  information  on  a  national  level.  Local 
 elections  require  just  as  much  information  as  national  elections.  The  question  is  how  do 
 we  get  enough  information  to  the  public  for  it  to  make  an  informed  decision  in  every 
 election?  The  answer  is  simple.  We  must  require  broadcasters  to  provide  this 


 2 
112
 information  to  the  public.  Currently  the  amount  of  information  broadcast  to  the  public 
 dealing  with  elections,  local  elections  in  particular,  falls  well  short  of  the  amount  required 
 to  make  an  informed  decision. 
 Television  has  been  accepted  as  the  prime  media  source  in  current  society  and 
 plays  a  paramount  role  in  the  dissemination  of  information  to  the  public.  While 
 television  has  become  the  preferred  media  for  todays  society,  it  fails  to  provide  sufficient 
 information  to  promote  the  democratic  process.  The  FCC  must  step  in  and  micro-  manage 
 broadcasters  public  interest  requirements  in  order  to  preserve  the  democratic  process. 
 Without  intervention  by  the  FCC,  the  current  trend  of  low  voter  turnout  will  probably 
 continue.  When  a  democracy  elects  representatives  to  office  without  a  majority  of  the 
 electorate  even  voting,  the  democratic  process  is  failing.  Someone  must  step  in  and 
 reverse  the  trend.  The  FCC  is  this  someone  and  the  public  interest  requirements  are  the 
 vehicle. 
 The  first  goal  of  broadcasters  public  interest  requirements  should  be  the 
 promotion  of  democracy.  In  order  to  promote  democracy,  the  FCC  must  provide 
 adequate  and  detailed  requirements  that  broadcasters  must  meet  in  order  for  the  public  to 
 become  adequately  informed.  Broadcasters  have  already  proven  that  they  will  not 
 voluntarily  provide  sufficient  coverage  to  all  elections.  This  inability  to  cover  local 
 political  issues  with  the  same  zeal  as  national  issues  has  contributed  to  voter  apathy 
 during  recent  elections.  In  order  to  promote  democracy  in  present  day  society, 
 broadcasters  need  to  provide  better  coverage  of  local  political  issues.  The  FCC  must  take 
 an  affirmative  role  by  requiring,  in  detail,  broadcasters  to  provide  sufficient  time  for  local 
 candidates  and  local  elections. 


 3 
113
 Some  critics  of  this  idea  will  say  that  the  FCC  should  not  micro-  manage  the 
 public  interest  requirements  of  broadcasters;  however,  this  is  exactly  what  the  FCC 
 should  do.  The  FCC  is  the  only  entity  that  can  effectively  require  broadcasters  to  provide 
 a  sufficient  amount  of  airtime.  In  determining  that  the  FCCs  involvement  is  required,  it 
 is  important  to  weigh  the  benefits  and  consequences  of  this  action. 
 The  positives  of  the  FCC  micro-  managing  broadcasters  public  interest 
 requirements  are  overwhelming.  The  democratic  process  is  a  fundamental  aspect  of  our 
 society  that  must  be  protected.  Without  the  democratic  process,  our  Constitution  and  225 
 years  of  history  mean  relatively  little.  In  order  to  insure  that  the  democratic  process  is 
 preserved,  the  public  must  have  access  to  enough  information  in  order  to  make  an 
 informed  decision.  Presently,  broadcasters  are  providing  less  and  less  time  for  local 
 political  issues.  While  local  political  elections  are  admittedly  not  as  important  as  the 
 presidential  election,  there  is  absolutely  no  reason  why  local  events  should  not  be  covered 
 at  all.  Local  events  need  to  be  given  sufficient  time  in  relation  to  national  elections. 
 Additionally,  since  local  elections  heavily  outnumber  national  elections,  providing  a 
 majority  of  available  broadcast  time  for  national  elections  is  irresponsible.  Broadcasters 
 must  provide  more  broadcast  time  for  local  elections. 
 However,  there  are  consequences  to  the  FCC  micro-  managing  broadcasters 
 public  interest  requirements.  As  with  all  additional  agency  action,  more  involvement 
 takes  away  freedom  and  choice  from  the  broadcasters.  This  could  be  a  serious  problem  if 
 the  agency  dictated  programming  choice  to  broadcasters  out  of  the  days  of  Stalin.  This 
 need  not  be  the  case  here.  The  FCC  can  provide  substantial  requirements  to  broadcasters, 
 but  allow  individual  broadcasters  to  satisfy  these  requirements  in  different  fashions. 


 4 
114
 Digital  Television  (DTV)  provides  expansive  alternative  ways  to  satisfy  these  increased 
 public  interest  requirements.  The  ability  of  broadcasters  to  multicast  and  datacast 
 enables  broadcasters  to  provide  more  extensive  coverage  of  local  political  events  through 
 a  variety  of  different  means.  The  minimal  infringement  on  the  broadcasters  freedom  is 
 easily  outweighed  by  the  promotion  of  democracy  that  can  be  gained  through  increased 
 public  interest  requirements. 
 It  is  quite  clear  that  the  democratic  process  is  falling  far  short  of  its  intended  goal. 
 In  order  for  the  democratic  process  to  regain  a  foothold  on  American  society,  the  quantity 
 and  quality  of  information  must  improve.  With  this  increased  information,  the  electorate 
 will  possess  the  necessary  knowledge  to  make  an  informed  decision.  Once  the  public  can 
 make  this  informed  decision,  it  will  exercise  it. 
 Educate  The  Voting  Public 
 A  second  purpose  of  the  broadcasters  public  interest  requirements  should  be  the 
 education  of  the  public.  This  purpose  addresses  the  quality  of  information,  not  just  the 
 quantity  of  information.  There  are  certain  items  of  information  that  the  public  must  be 
 given  in  order  to  make  an  informed  choice.  The  first  piece  of  information  is  the  simple 
 time  and  dates  of  elections,  primaries  included.  This  commentator  was  wholly 
 dissatisfied  with  the  local  broadcasters  and  their  failure  to  inform  the  public  of  the  simple 
 fact  of  the  date  of  the  primary.  This  piece  of  information  is  essential.  The  FCC  must 
 require  that  broadcasters  provide  dates  and  times  of  elections  to  the  public. 
 DTV  enables  broadcasters  to  datacast  this  information  through  television  media 
 with  a  continuity  before  unavailable.  The  FCC  should  require  broadcasters  to  provide 
 information  concerning  the  dates  and  times  of  elections  on  a  continual  basis  for  the  two 


 5 
115
 weeks  prior  to  primaries  and  elections.  This  requirement  should  be  more  extensive  than 
 just  a  five-  second  comment  from  local  news  media.  Broadcasters  can  overlay  election 
 dates  and  times  on  screen,  similar  to  storm  warnings.  This  information  is  needed  to 
 educate  the  public  on  its  ability  to  vote,  and  when  to  do  so. 
 Another  important  aspect  of  educating  the  public  is  informing  the  electorate  about 
 the  candidates.  The  coverage  of  local  elections  is  appallingly  low.  This  in  turn  creates 
 low  voter  turnout,  because  voters  really  do  not  know  who  to  vote  for.  The  FCC  must 
 require  broadcasters  to  provide  airtime  to  candidates  at  all  levels.  In  the  notice  of 
 inquiry,  section  37  states  that  the  Advisory  Committee  Report  would  allow  broadcasters 
 maximum  flexibility  in  deciding  what  candidates  and  elections  to  cover.  This  approach 
 does  not  solve  the  apparent  problem  of  broadcasters  failing  to  provide  information  on 
 local  elections. 
 The  FCC  must  require  broadcasters  to  provide  airtime  to  local  candidates  in 
 addition  to  time  for  national  candidates.  The  FCC  could  require  a  proposal  similar  to  the 
 proposal  of  former  FCC  General  Counsel  Henry  Geller  et.  al.  in  section  38.  But  in 
 addition  to  the  Geller  proposal,  broadcasters  should  be  required  to  provide  time  before 
 primaries,  although  admittedly  this  time  would  be  less  than  the  general  elections.  The 
 problem  with  the  Geller  proposal  is  that  it  still  gives  broadcasters  the  discretion  as  to 
 which  races  and  candidates  are  given  time.  The  result  of  this  proposal  will  be  to,  once 
 again,  provide  less,  if  any  education  on  local  candidates.  The  FCC  should  at  a  minimum 
 provide  percentages  of  time  for  each  level  of  election.  For  example,  out  of  the  allotted 
 time,  broadcasters  could  use  34%  of  the  time  for  national  elections,  33%  for  state 


 6 
116
 elections,  and  33%  for  local  elections.    Whatever  the  percentages,  the  FCC  should 
 determine  guidelines  for  where  broadcasters  place  their  allotted  time. 
 While  this  comment  requests  the  FCC  to  regulate  the  amount  of  time  that 
 broadcasters  spend  on  elections,  the  decision  as  to  what  type  of  information  is  broadcast 
 should  remain  in  the  hands  of  the  broadcasters.  As  long  as  broadcasters  are  required  to 
 spend  certain  allotments  of  time  on  certain  races,  hopefully  the  broadcasters  will  use  this 
 time  to  their  own  advantage.  2  By  allowing  broadcasters  to  decide  what  fora  they  use  to 
 disburse  information  to  the  public,  within  the  guidelines  provided  by  the  FCC,  the  FCC  is 
 still  allowing  broadcasters  broad  power  over  their  broadcasts. 
 Conclusions 
 The  current  status  of  informational  broadcasts  about  local  elections  is  appalling. 
 While  national  elections  still  garner  broadcast  headlines,  local  elections  have  been  cast 
 aside.  The  nation  needs  to  be  educated  on  all  elections,  and  television  will  be  the 
 medium  to  promote  that  message.  The  problem  under  current  guidelines  is  that 
 broadcasters  can  satisfy  their  public  interest  requirements  in  very  general  manners.  The 
 FCC  needs  to  step  in  and  require  broadcasters  to  provide  added  coverage  of  state  and 
 local  elections.  In  addition,  the  FCC  needs  to  require  broadcasters  to  provide  pertinent 
 information  dealing  with  elections,  such  as  dates  and  times. 
 More  stringent  public  interest  requirements  will  provide  the  public  with 
 information  they  have  not  been  receiving  lately.  Candidates  for  all  elections  should  be 
 able  to  be  heard,  and  voters  should  be  able  to  hear  them.  Without  these  abilities  the 


   The  percentages  reflect  the  amount  of  emphasis  that  should  be  placed  on  the  national  election,  but  contrasts  with  that  the  fact  that  state  and  local  elections  will  have  more  races  and  candidates. 
 *  It  should  go  without  saying  that  broadcasters  are  required  to  provide  equal  time  to  all  candidates. 


 7 
 _-.-  --_l  ---,.-.l    ~I  .-  -- 
 1 
117
 democratic  process  can  not  work.  The  idea  of  democracy  is  for  everyone  to  have  a  voice 
 in  the  election  of  those  who  govern.  If  the  public  is  not  given  adequate  information  about 
 the  candidates  who  are  likely  to  run  the  country,  our  system  is  failing.  A  choice  for  an 
 elected  official  should  always  be  an  informed  choice,  and  the  FCC  is  in  a  position  to 
 correct  the  current  flaws  in  the  system.  By  requiring  broadcasters  to  provide  information 
 on  every  election  from  President  of  the  United  States  to  City  Alderman,  the  FCC  can 
 promote  the  democratic  process  and  enable  every  choice  to  be  a  well-  informed  choice. 
 For  these  reasons,  it  is  imperative  for  the  FCC  to  address  the  issues  dealing  with 
 political  discourse.  The  democratic  process  must  be  maintained  and  the  trend  of  voter 
 apathy  must  be  reversed. 


 N&  l  Brunetz,  2L 
 Univ.  of  Tenn.  College  of  Law 


 8 
 _  .  ..-.  _  .  .  _ 
118
 Fred  Baker  Comment  to  Notice  of  Proposed  Rulemaking 
 I%?  Docket  No.  99-  360;  FCC  99-  390 
 I.  SCOPE  OF  COMMENTS 


 MAR  2  3  moo 


 With  this  comment,  I  respond  to  the  following  issues 
 raised  in  the  Notice  of  Proposed  Rulemaking:  (A)  whether 
 the  Commission  should  adopt  new  public  interest  rules  to 
 obligate  television  broadcasters  after  their  transition  to 
 digital  television;  and  (B)  to  what  extent  should  public 
 interest  rules  apply  .to  the  new  opportunities  offered  by 
 digital  television,  such  as  multicasting,  datacasting,  and 
 "ancillary  and  supplementary  services." 
 I  am  a  second-  year  law  student  at  the  University  of 
 Tennessee  College  of  Law.  With  this  comment,  I  argue  that: 
 (A)  yes,  the  Commission  should  promulgate  new  public 
 interest  requirements  for  digi-  tal  television  broadcasters; 
 and  (B)  the  public  interest  requirements  should  be  applied 
 to  each  manifestation  of  the  new  digital  television 
 technology,  like  multicasting  and  datacasting. 
 II.  ARGUMENT  --. 
 A.  New  Public  Interest  Requirements  for  DTV 
 The  Commission  should  adopt  new  public  interest  rules 


 for  digital  television  broadcasters.  Some  comrnenters  in  the 
 DTV  proceeding  argue  that  current  public  in-  terest  rules 
 need  not  change  simply  because  broadcasters  will  be  using 
119
 digital  technology  to  provide  the  same  broadcast  service  to 
 the  public.  This  argumen-  t  fails  in  -two  respec-  ts.  Firs-  t,  i-  t 
 fails  to  take  into  account  the  many  additional  options  that 
 tne  new  technology  of  digital  television  will  offer  both 
 the  broadcasters  and  the  public.  Second,  and  more 
 importantly,  such  an  argument  ignores  -the  additional 
 responsibilities  imposed  by  these  new  opportunities. 
 Wi-  th  the  advent  of  new  broadcasting  technologies,  the 
 public  interest  requirements  should  be  increased  to 
 correspond  to  these  changes  in  technology.  How  should 
 existing  public  interest  requirements  be  applied  to  a  new 
 technology  ?  For  some  valuable  guidance  on  this  issue, 
 consider  some  statements  made  by  the  Supreme  Court  during 
 the  1940's  when  it  addressed  -the  then-  novel  question  of  how 
 public  interest  requirements  should  apply  to  radio 
 broadcas-  ters. 
 In  these  cases,  the  Supreme  Court  made  it  clear  that 
 the  "public  interest"  required  under  the  Communications  Act' 
 is  the  interest  of  the  listening  public  in  "the  larger  and 
 more  effective  use  of  radio."  2  Moreover,  the  Court  noted 
 tha.  t  "an  important  element  of  public  interes.  t  and 
 convenience  affecting  the  issue  of  a  license  is  the  ability 


   47  U.  S.  C.  5  309(  a) 
 2  Nutional  Broodcasting  Cb.  \.  Y  l  hited  Stutes,  3  19  U.  S.  I  90,  2  16,  3  I  9  S.  Ct.  997,  1009  (  1943) 


 2 


 --.-..---_  -  _,__.__  I___..  ._    -._  II____.-._  _.  -..-l  --  -._..  I  -I  I  _ 
 I  _ 
120
 of  the  Licensee  to  render  the  best  practicable  service  to 
 the  communit-  y  reached  by  its  broadcast."  3 
 As  these  cases  indicate,  one  important  aspect  of  any 
 broadcaster's  public  interest  obligation  is  u-  tilize  that 
 broadcaster's  medium  in  the  most  practicable  and  effective 
 way  to  benefit  the  public.  If  that  medium  provides  added 
 opportunities  and  technologies  to  communicate  to  the 
 public,  -the  public  interes-  t  obligations  should  reflect  this 
 increased  potential  for  communication.  Applying  this 
 standard  to  digital  television,  i-  t  is  clear  that  these 
 broadcasters  are  obligated  to  use  the  added  features  of 
 this  technology,  like  multicasting  and  datacasting,  in  ways 
 that  will  serve  the  public.  Thus,  the  public  interest 
 obligations  should  be  extended  to  these  aspects  of  digital 
 television. 
 The  conclusion  that  digital  television  broadcasters 
 should  be  subject  to  broader  public  interest  obligations  is 
 further  supported  by  the  underlying  policy  behind  these 
 requirements.  The  public  airwaves  are  not  owned  by  the 
 broadcasters.  Rather,  broadcasters  are  only  allowed  to  use 
 these  airwaves  when  the  pubTic,  -through  i-  ts  government, 
 grants  them  permission  to  do  so  through  the  licensing 
 process.  This  feature  of  broadcasting  serves  as  a  double- 


   kderal  ~  ommutticutiotts  ~  ommissiott  v.  Sanders  Bras.  Radio  Services,  309  U.  S.  470,  475,  60  S.  Ct.  693, 
 3 
121
 edged  sword  for  the  broadcasters.  On  one  hand,  the 
 broadcasters  must  go  througn  .the  hassle  of  the  licensing 
 process  and  be  subject  to  government  regulation  in  order  to 
 tise  these  airwaves.  On  the  o.  ther  hand,  by  jumping  through 
 these  hoops,  television  broadcasters  are  given  the 
 exclusive  permission  to  ci-  tilize  this  very  powerful  and 
 lucrative  medium.  Hence,  the  public  and  the  broadcasters 
 have  struck  a  social  contract  of  sorts,  whereby  .the 
 broadcasters  are  allowed  the  sole  privilege  of  tapping  into 
 this  profitable  medium  in  re.  turn  for  promising  to  devote 
 some  of  this  medium's  use  to  the  public.  4 
 When  the  digi-  tal  -television  movement  is  viewed  in  -this 
 light,  it  is  clear  that  DTV  broadcasters  should  be  subject 
 to  increased  public  interest  obligations  commensurate  with 
 the  increased  benefits  they  have  received.  With  the 
 -transition  from  analog  to  digital  television,  broadcasters 
 are  given  many  more  opportunities  to  use  the  public 
 airwaves  for  their  own  financial  benefit.  In  return  for 
 these  i-  ncreased  opportunities  for  financial  gain  by  using 
 the  public's  airwaves,  digital  broadcasters  should  be 
 obligated  to  compensate  the  public  through  additional 


 697,  84  LEd.  869,  1037  (  1940). 
 4  Reed  E.  Hun&,  The  Public  Airwaves:  What  Ikm  7he  Plthlic  Interest  Require  of  Television 
 Hroudcasters.?.  45  Duke  L.  J.  1089,  1095  (1996). 


 4 
122
 public  interest  regulations  related  to  these  new 
 opportunities. 
 Es.  Public  Interest  Rules  for  Specific  DTV  Opportunities 
 1.  Multicasting 
 It  is  well  documented  that  with  the  advent  of  digital 
 teievision,  broadcasters  will  be  able  to  offer  the  public 
 far  more  than  a  simple  analog  television  signal.  In 
 addi-  tier,,  digital  broadcasters  will  be  able  to  multicast, 
 allowing  broadcasters  to  offer  three  or  more  programming 
 optior.  s.  5  This  (could  allow  viewers  .to  choose  between 
 regularly  scheduled  programming,  twenty-  four  hour  news 
 coverage  or  "all  spar-  ts"  programming,  to  name  but  a  few 
 examples."  With  such  added  programming  choices,  digital 
 -television  broadcasters  stand  -to  gain  considerably  more 
 advertising  revenue,  while  still  using  the  public  airwaves. 
 In  return  for  these  financial  benefits,  digi-  tal 
 broadcasters  should  be  subject  to  immediate  and  specific 
 public  in-  terest  obligations  in  their  use  of  multicasting. 
 Al-  1  of  the  broadcasters'  existing  public  interest 
 obligations  should  apply  to  each  programming  stream  as  if 


 it  were  a  separate  channel.  That  is,  the  same  obligations 


 5  James  M.  Burger  and  Todd  Gray,  I>  utacastil~-(  reati?  l~  hcentives:  Fees  for  Ancillary  Services  ofsered  by 
 Digital  Television  Stations,  (December  1998)  htt~:  lfwww.  digitaltelevision.  com/  lawl298tuhtml.    Id. 
123
 regarding  children's  television,  7  political  campaigns,  *  and 
 indecent  broadcasts9  should  still  obtain,  but  should  apply 


 to  each  and  every  programming  stream  -that  is  broadcast. 
 The  Notice  of  Proposed  Rulemaking  asked  whether 
 multicasting  broadcasters  should  be  allowed  to  satisfy 


 these  requirements  on  just  one  of  the  streams,  leaving  the 
 o.  ther  streams  free  of  such  public  interest  applications. 
 This  option  should  not  be  available  to  broadcasters  because 
 such  an  approach  misconstrues  the  public  interest  rules  as 
 broadcaster-  centered,  rather  than  public-  centered.  After 
 all,  the  obligations  are  not  to  "punish"  the  broadcasters; 
 IL  'F  they  were,  then  allowing  the  broadcasters  to  pay  this 
 penal-  ty  all  on  one  stream  would  be  sufficient  as  long  as 
 the  broadcasters'  total  obligations  were  paid. 
 However,  instead  of  being  aimed  a-  t  the  broadcasters, 
 the  public  interest  rules  are  intended  to  benefit  the 
 public.  This  elementary  concept  is  one  tha.  t  has  seemingly 
 been  lost  in  the  technological  shuffle.  That  is,  if 
 broadcasters  are  allowed  .to  offer  mul-  tiple  programming 
 streams,  while  including  public  interest  features  on  only 
 one  of  them,  then  -the  public  will  lose.  Consider  the 
 example  of  a  broadcaster  offering  three  programming 


   See  47  U.  S.  C.  $303(  b)(  a) 
 *  See  47  U.  S.  C.  $3  15 
   See  47  U.  S.  C.  9303 


 6 
124
 streams:  an  ally-  news  stream,  an  all-  sports  stream,  and  a 
 stream  tha-  t  only  includes  public  service  announcements, 
 local  campaign  news,  etc.  In  this  scenario,  only  one  stream 
 would  be  used  to  numerically  sa.  tisfy  the  broadcaster's 
 publi-  c  I  nterest  requirements,  while  other  more  popular 
 programming  streams  would  be  transmitted  totally  free  of 
 public  interest  rules.  In  theory,  the  public  would  still 
 have  -the  choice  of  which  programming  to  view.  However,  in 
 reality,  the  public  would  be  ill-  served  if  broadcasters 
 were  allowed  to  take  advantage  of  this  right  of  the  public 
 to  choose  by  placing  lucrative  advertising  on  popular 
 programming  streams  while  putting  all  the  public  interest 
 features  on  other  less  popular  streams.  The  public  will  not 
 served  by  features  they  do  no.  t  see. 
 3  -.  Datacasting 


 Ancther  potential  advan-  tage  offered  by  digital 
 television  is  datacasting,  where  the  broadcaster  is  able  to 
 offer  the  public  additional  information  about  the  programs 
 they  are  watching,  up-  to-  date  stock  information,  CD  quality 
 r;  iusic,  and  even  access  to  high  speed  internet  service." 
 These  services  will  benefit  broadcasters  either  through 
 advertising  or  by  being  offered  on  a  subscribership  basis. 
 In  return  for  using  public  airwaves  for  their  own  profit, 


 7 
 - 
 ,-.  _  ___-  _.  _  ----  ,-~.1  ..-.- 
125
 broadcasters  should  be  subject  to  public  interest 
 obilgatlons  applying  to  each  of  these  datacasting  features. 
 Scme  examples  of  how  broadcasters  could  use 
 datacasting  for  -the  public  benefit  include  offering  news 
 tickers  of  local  or  community  significance.  Also,  they 
 could  use  datacasting  to  increase  the  availability  of  local 
 disaster  warnings.  In  addition,  datacasting  offers  viewers 
 .the  ability  to  be  interactive.  This  could  be  especially 
 valuable  in  serving  the  public  by  giving  the  viewing  public 
 a  unique  opportunity  -to  communicate  with  broadcasters  and 
 to  sl~  pply  broadcasters  with  more  information  to  determine 
 what  specific  locai  needs  should  be  addressed. 
 Some  of  these  applications  were  discussed  by  the  Gore 
 Commission  Report.  I  will  no-  t  comment  extensively  on  the 
 Gore  Commission's  report,  but  I  would  like  to  comment  on 
 one  proposal  made  therein.  The  Gore  Commission  suggested 
 that  there  should  be  a  two-  year  moratorium  on  additional 
 public  interest  obligations  for  stations  that  choose  to 
 multicast.  This  is  intended  to  give  broadcasters  an 
 opportunity  to  explcre  options  in  -the  market  p1ace.  l' 
 While  I  agree  with  many  of  the  Gore  Report's  proposals 
 to  impose  additional  public  interest  obligations  on  digital 


   James  M.  Burger  and  Todd  Gray,  I~  a~  a~  asti~~--(~  eatil?  l:  hcentives:  Feesfor  Ancillary  Services  ofsered 
 Ly  Digital  Television  Stations,  (December  1998)  .~  http:..  www.  digitaltlelevision.  com/  law1298p.  shtml~. 


 8 
 -_.  ._  _  ___---  ._.__.  I  _..----.-  --..- 
126
 broadcasters,  the  two-  year  moratorium  is  a  bad  idea  for 
 -three  reasons.  Firs-  t,  it  would  unjustly  enrich  broadcasters 
 at  the  expense  of  the  public.  Under  such  a  moratorium, 
 broadcas,  ters  could  reap  -two  years'  worth  of  revenue  by 
 multicasting,  all  while  being  completely  unfettered  by  the 
 obiigation  to  compensate  the  public.  Second,  broadcasters 
 would  use  this  two-  year  head  start  to  explore  the  market 
 for  more  and  better  ways  to  benefit  financially  at  the 
 expense  of  the  public.  And  third,  during  this  time,  these 
 public  interest-  free  practices  would  become  more  entrenched 
 and  harder  to  change  once  the  moratorium  expires.  A  better 
 solution  would  be  for  the  public  interest  obligations  to 
 attach  immediately  to  any  multicasting  and  datacasting  used 
 by  broadcasters.  That  is  the  only  way  to  ensure  the  proper 
 balance  under  this  "social  contract"  between  broadcasters 
 and  the  public. 
 ITi  LA.  Conclusion 


 Digital  television  offers  great  opportunities  to  both 
 digital  broadcasters  and  -the  viewing  public.  However, 
 unless  the  existing  public  interest  obligations  are  applied 
 to  these  expanded  opportunities,  only  the  broadcasters  will 
 reap  the  benefits  of  this  technology.  Thus,  additional 
 public  interest  requirements  should  be  imposed  on 


   James  Burger  and  Todd  Gray,  Ihe  Bore  Commission  Report  on  Iuhiic  Interest  Obligations  of  Digdai 
 9 


 -_  .~  .._...  _-._.  _....  ..--.-..  -  ..-  ..*---,-.  ---  .-,  ll  lllllllll  ri-. 
127
 broadcasters  utilizing  digital  technology.  Not  only  should 
 these  public  interest  requirements  be  increased,  they 
 should  apply  to  each  new  aspect  of  digital  technology 
 Iutilized  by  broadcasters.  The  soundness  of  this  principle 
 is  underscored  by  the  Congress'  enactment  of  5336  of  the 
 Communications  Act,  which  addresses  the  new  "ancillary  and 
 supplementary  services"  offered  with  more  broadcast 
 spectrum  flexibility.  The  statute  states  tha-  t  holders  of 
 broadcasting  licenses  will  be  allowed  to  offer  "such 
 anciliary  and  supplementary  services  on  designa-  ted 
 frequencies  as  may  be  consistent  with  the  public  interest, 
 convenience,  and  necessity."  12  The  statute  further  states  - 
 that  "Nothing  in  this  section  shall  be  construed  as 
 reiievlrig  as  television  broadcasting  sta.  tion  from  its 
 obligation  to  serve  the  public  interest,  convenience,  and 
 necessity.  "I3  The  language  clearly  indicates  that 
 broadcasters  are  not  supposed  to  be  the  sole  beneficiaries 
 of  the  advantages  offered  by  digital  technology.  The  public 
 is  also  entitled  to  benefit.  However,  the  public  may  be 
 lef-  t  out  of  these  benefits,  unless  additional  public 
 interest  ob  ligations  should  be  imposed  on  broadcasters 
 using  digital  technology. 


 Bwadca.  skrs,  (January  1999)  htt~://  www.  digitaItelevision.  com/  law  199pshtml. 
 I2  47  U.  S.  C.  $336(  a)(  2)  [Emphasis  added.] 
   47  U.  S.  C.  $336(  d) 
128
 B.  Snyder-  3/  16/  00 
 .  MAR  2  3  2uuo  To:  Magalie  Roman  Salas,  Secretary-  FCC 
 From:  Brent  Snyder 


 cc:  Professor  Glenn  H.  Reynolds 
 Date:  03/  11/  00 
 Re:  Public  interest  obligations  of  DTV  Broadcasters. 


 Dear  Secretary  Salas, 
 As  a  law  student  and  current  digital  cable  television 
 subscriber,  I  want  to  express  my  views  on  the  public  interest 
 requirements  of  television  broadcasters  which  will  be  put  in 
 place  for  the  transition  to  digital  television  (  DTV").  It 
 appears  to  me  that  the  majority  of  comments  already  filed  on 
 this  matter  have  been  received  from  either  public  interest 
 groups  or  affected  corporations.  While  reading  this,  keep  in 
 mind  that  I  am  an  individual  consumer,  motivated  merely  by  my 
 feelings  on  what  should  be  imposed  on  current  licensees.  With 
 that  said,  I  want  to  state  my  general  position  that  I  oppose  any 
 requirements  imposed  on  broadcasters  and  urge  the  Commission  to 
 charge  broadcasters  for  the  use  of  our  public  airwaves  or  sell 
 them  at  auction. 
 Introduction  and  Background 


 As  I  understand  them,  the  previous  public  interest 
 requirements  pertaining  to  analog  TV  were  justified  because 
 there  was  a  "spectrum  scarcity".  It  has  been  stated  that  the 
 1 
129
 B.  Snyder-  3/  16/  00 
 spectrum's  'inherent  physical  limitation'  justifies  the  federal 
 imposition  of  public  service  obligations  in  return  for  the  'free 
 and  exclusive  use  of  a  limited  and  valuable'  public  resource.  nl 
 This  is,  however,  no  longer  the  case.  DTV  utilizes  a  huge 
 spectrum  that  was  not  in  existence,  or  even  known  about,  at  the 
 time  these  original  standards  were  created.  Additionally, 
 charging  the  broadcasters  for  use  of  the  airwaves  would 
 alleviate  any  responsibility  to  the  federal  government  under  the 
 above  rationale.  Because  I  doubt  the  Commission  will  accept  a 
 non-  regulatory  approach,  I  also  have  a  common  sense  approach  to 
 some  of  the  specific  requirements  being  proposed,  such  as  free 
 airtime  to  political  candidates  and  emergency  service 
 announcements. 
 Corporate  Welfare 
 The  giving  away  of  the  additional  spectrum  needed  for  the 
 transition  to  DTV  has  been  described  by  many  as  one  of  the 
 greatest  instances  of  corporate  welfare  this  country  has  ever 
 seen.  William  Safire  made  a  worthy  comparison  when  he  stated 
 that  giving  broadcasters  free  use  of  the  airwaves  is  "like 
 giving  Yellowstone  National  Park  to  the  timber  companies."  2  Not 
 only  would  charging  broadcasters  for  the  use  of  our  airwaves,  or 


 'William  H.  Read  &  Ronald  A.  Weiner,  FCC  Reform:  Governing  Requires  A  New 
 Standard,  49  Fed.  Comm.  L.  J.  289,  294-  95. 
 2  Digital  TV  in  the  Public  Interest  (visited  Mar.  10,  2000) 
 <http://  www.  cme.  org/  dtv_  in.  html>. 


 2 
130
 B.  Snyder-  3/  16/  00 
 auctioning  them  off,  put  possibly  more  than  $20  billion  into  the 
 economy3,  it  would  allow  broadcasters  to  pursue  a  free-  market 


 approach  and  broadcast  exclusively  what  the  public  wants  to 
 watch. 
 One  suggestion  I  have,  although  I  feel  not  necessary  due  to 
 private  contributions  and  donations,  is  using  some  of  the  funds 
 obtained  from  the  auction  to  assist  broadcasters,  whether  public 
 or  private,  in  providing  public  interest  programs,  messages  or 
 services  (i.  e.  closed  captioning).  However,  this  assistance 
 should  only  be  provided  during  the  interim  transition  to  DTV 
 until  broadcasters  can  determine  the  level  of  public  interest  TV 
 their  market  wants  and  how  best  to  provide  it.  On  a  similar 
 topic,  the  Commission  should  understand  that  regardless  of  any 
 requirements  it  adopts,  under  no  circumstance  should  the  federal 
 government  award  waivers  of  these  requirements  to  broadcasters 
 providing  programs  with  "public  interest"  messages  contained 
 within  (i.  e.  anti-  drug  themes  in  Sabrina  the  Teenage  Witch; 
 among  others).  Unless  the  government  is  listed  in  the  credits 
 of  the  program  as  providing  support,  I  believe  this  is  a 


 violation  of  current  anti-  payola  laws.  4 


 3  ihttp://  www.  cbo.  gov>.  ($  20  billion  was  the  approximate  amount  obtained  by 
 auctioning  off  the  spectrum  for  wireless  and  cellular  communication.  It  has 
 been  suggested  that  auctioning  off  the  DTV  spectrum  would  produce  a  possibly 
 greater  amount;  projections  suggest  between  $lO-$  40  billion). 
 4  47  U.  S.  C.  A.  5508. 


 3 


 -  __^,  -_-_  _..  .---  ll..-  l  1.1  11-  1--  ^..  I 
131
 B.  Snyder-  3/  16/  00 
 Comments  on  Specific  Standards 
 From  my  reading  of  the  NO1  it  is  apparent  that  the  FCC  and 
 others  are  of  the  opinion  that  broadcasters  must  continue  to 
 satisfy  some  form  of  public  interest  requirements.  Although  I 
 believe  none  of  these  requirements  are  needed  or  justified  in  a 
 free-  market  system;  I  would  like  to  offer  my  opinions  on  why 
 some  of  the  more  specific  standards  proposed  do  not  follow 
 reason. 
 Programming  Streams  and  Public  Interest  Requirements 
 Because  I  believe  that  some  form  of  requirement  for  public 
 interest  broadcasting  will  be  imposed,  I  urge  the  Commission  to 
 allow  broadcasters  to  satisfy  these  requirements  on  one  channel. 
 The  invention  of  the  remote  control  has  got  to  be  one  of  the 
 greatest  inventions  promoting  free  choice  and  variety  in  TV 
 programming.  Because  of  the  remote  control,  people  from  the 
 comfort  of  their  chair  change  channels  with  unbelievable  fury 
 when  bombarded  with  commercials  or  public  service  announcements 
 ("  PSA's").  Additionally,  with  so  many  channels,  and  a  great 
 deal  more  to  come,  people  can  click  and  click  until  they  find 
 what  they  want  to  watch.  Now  this  may  be  a  sad  state  of 
 affairs,  but  the  truth  is  that  people  who  watch  PSA's  or  other 
 public  interest  broadcasting  do  so  because  they  choose  to. 
 Thus,  I  argue  that  requiring  broadcasters  to  show  public 
 interest  programming  on  more  than  one  channel  serves  no  purpose. 
 4 
132
 B.  Snyder-  3/  16/  00 
 Allowing  broadcasters  to  choose  on  what  streams  they 
 broadcast  their  programs  will  result  in  a  situation  similar  to 
 cable  television  with  more  specific  interest  programming  (i.  e. 
 Food  TV  and  HGTV).  Not  only  will  this  benefit  consumers,  by 
 offering  more  choice  in  what  to  watch,  but  it  benefits 
 advertisers  by  providing  them  a  specific  market  to  target. 
 Community  Broadcasting 
 The  NO1  addresses  the  lack  of  community  coverage  of  public 
 affairs.  While  this  may  be  the  case  in  many  places,  forcing 
 broadcasters  to  show  community  based  programs  will  have  little 
 positive  effect.  The  best  example  of  this  can  be  seen  on  cable 
 TV.  In  my  hometown  of  Knoxville,  Tennessee,  the  local  cable 
 company  provides  a  channel  to  be  used  by  the  community.  What 
 sort  of  great  community  programming  is  shown  on  this  station 
 besides  city  council  meetings?  Two  of  the  most  notable  are 
 Wrestle  Talk  (a  phone  in  Q&  A  show  with  local  area  wrestlers)  and 
 a  broadcast  of  Fetish  Night  from  one  of  the  local  nightclubs.  I 
 find  it  hard  to  believe  that  this  is  the  sort  of  programming 
 that  was  intended  when  creating  a  public  access  channel,  but 
 this  is  what  resulted.  The  local  news  channels  already  cover 
 most  other  community  events,  often  times  to  the  extent  that 
 real  m  news  is  ignored.  I  recall  one  instance  when  I  was 
 waiting  for  an  important  story  to  be  presented;  I  had  to  wait 


 5 
133
 B.  Snyder-  3/  16/  00 
 through  twenty  minutes  of  high  school  and  college  football 
 coverage  and  a  report  on  a  craft-  fair  featuring  soap  carving. 
 On  occasion  the  local  affiliates  will  band  together  and 
 present  a  community  affairs  program.  This  occurred  most 
 recently  here  with  a  program  entitled  "nine  counties-  one  vision" 
 which  was  broadcast  on  all  of  the  local  affiliate  stations.  The 
 program  featured  local  area  children  engaged  in  various 
 performances  with  the  hopes  of  promoting  community  forums  to 
 improve  areas  of  east  Tennessee.  While  this  is  noble  of  the 
 stations,  I  suspect  those  who  watched  it  did  so  because  they 
 were  interested  in  the  topic  and  perhaps  in  seeing  their 
 children  on  TV,  not  because  it  had  replaced  their  regularly 
 viewed  programming.  I  also  suspect  that  many  people  watched 
 other  non-  local  cable  programming,  rented  videos  or  perhaps  did 
 something  besides  watching  TV. 
 Political  Discourse 


 The  advisory  committee  and  others  have  recommended  that 
 requirements  should  be  set  which  would  force  broadcasters  to 
 provide  airtime  to  local  and  national  candidates.  I  suggest 
 that  this  is  unneeded  and  unwanted. 
 First  and  foremost,  this  was  previously  attempted  in  the 
 1996  elections  and  was  what  can  only  be  described  as  a  failure. 
 All  the  major  networks  gave  free  airtime  to  both  Bill  Clinton 
 and  Bob  Dole.  What  resulted?  According  To  Thomas  W.  Hazlett, 
 6 


 _  ,_  _  _    ,_  __._  ._,.  I  -.--..-  _....^._...  ~. 
134
 B.  Snyder-  3/  16/  00 
 It  turns  out  that,  when  politicians  come  on  the  screen, 
 Americans  exhibit  the  hand-  speed  of  Sugar-  Ray  Leonard  grabbing 
 for  their  remotes."  '  Additionally,  I  read  a  story  a  few  years 
 ago  about  a  new  technique  that  New  York  cable  companies  were 
 using  to  persuade  subscribers  who  had  become  delinquent  on  their 
 bills  to  pay  up.  Instead  of  just  shutting  off  the  cable  box, 
 the  company  would  block  all  channels  on  the  box  except  for  C- 
 SPAN.  Never  before  had  the  companies  had  such  a  high  rate  of 
 on-  time  bill  payment  after  this  practice  began.  Thus,  I  believe 
 that  more  political  discourse  on  TV  is  unwanted  by  the  majority 
 of  Americans. 
 I  also  believe  it  is  unneeded.  As  has  been  demonstrated 
 only  those  who  are  truly  interested  in  the  political  discourse 
 are  the  ones  watching  the  existing  programming.  For  those  who 
 want  the  information,  it  is  not  hard  to  obtain.  The  local  and 
 national  news  does  some,  albeit  not  very  good,  reporting  on 
 candidates,  and  when  enough  people  are  interested  they  will 
 provide  even  more  coverage  (as  when  election  time  draws  closer). 
 Also,  there  are  other  media  sources  which  interested  parties  can 
 utilize  besides  TV,  such  as  newspaper,  internet  and  radio.  In 
 this  day  and  age  of  technology  it  can  not  be  said  that  there  is 


 5  For  an  excellent  article  discussing  the  problem  of  free  airtime  for 
 candidates,  DTV  and  corporate  welfare,  See  Thomas  W.  Hazlett,  Must  Scream  TV: 
 The  Hidden  Costs  of  Free  Television  Time  For  Politicians  (visited  Mar.  10, 
 2000)  <http:  /  /reason.  com/  97Ol/  col.  hazlett.  html>. 


 7 
135
 B.  Snyder-  3/  16/  00 
 not  enough  political  discourse.  What  can  be  said  is  that  it  is 
 depressing  that  more  Americans  do  not  care  about  it;  however, 
 forcing  broadcasters  to  provide  the  more  of  it  will  not  make 
 Americans  care  or  even  watch. 
 Emergency  Alert  System 


 The  Commission  also  is  considering  what  requirements  to 
 impose  on  broadcasters  concerning  public  interest  services  such 
 as  the  Emergency  Alert  System  ("  EAS").  While  I  feel  this 
 service  did  serve  a  purpose,  I  believe  requiring  broadcasters  to 
 provide  it  is  no  longer  necessary.  Local  stations  provide 
 sufficient  coverage  of  emergency  situations  to  do  away  with  the 
 EAS. 
 The  need  for  the  EAS  does  not  exist  in  today's  technology 
 or  media.  Local  news  stations  jump  at  the  opportunity  to 
 broadcast  bad  weather  or  other  major  "crisis".  Just  the  threat 
 of  snow,  tornadoes  or  even  heavy  rain  is  enough  to  interrupt  a 
 program  already  in  broadcast  or  at  least  display  the  little  maps 
 and  warnings  on  top  of  the  current  program.  Local  news 
 commercials  usually  involve  how  superb  their  weather  coverage 
 is.  Why  do  local  stations  provide  this  service?  Probably 
 because  they  know  numerous  people  are  interested  and  want 
 information  about  a  local  impending  disaster.  With  DTV  the 
 ability  to  broadcast  warnings  will  be  greater,  therefore  it  is 
 hard  to  believe  that  the  broadcasters  will  give  up  something 
 8 
136
 B.  Snyder-  3/  16/  00 
 that  draws  such  a  huge  audience  solely  because  the  Commission  no 
 longer  requires  it. 
 Conclusion 
 While  I  feel  the  proponents  of  the  public  interest 
 requirements  have  good  intentions;  I  believe  they  are  misguided 
 and  lack  the  common  sense  notion  that  people  choose  what  they 
 want  to  watch.  Again  the  first  step  in  solving  the  "because  we 
 gave  you  this  for  free  you  now  owe  us"  problem  is  to  simply 
 charge  or  auction  off  the  spectrum  thus  relieving  the 
 broadcasters  of  any  responsibility  under  the  old  regime.  If  the 
 Commission  does  not  take  this  approach,  it  should  focus  on  the 
 behavior  patterns  of  both  TV  viewers  and  TV  broadcasters.  By 
 doing  so,  the  Commission  can  only  come  to  the  conclusion  that 
 people  are  not  going  to  be  watching  programs  they  do  not  want  to 
 see  when  they  have  100  other  channels  to  chose  from.  I  think 
 looking  at  the  cable  TV  system  that  has  emerged  over  the  last 
 several  years  and  the  specific  interest  channels  it  has 
 generated  proves  this  is 
 Are  public  interest 
 for  people?  Of  course. 
 information  on  political 


 the  case. 
 and  community  affairs  programming  good 
 Does  America  as  a  whole  lack 
 policy  and  discourse?  Most  likely.  Is 
 requiring  broadcasters  to  air  it  going  to  make  Americans  watch 
 it?  Certainly  not.  Thank  you  for  your  consideration  on  this 
 matter. 
 9 
137
 Sincerely, 
 ./  .&  -c  ,  -x  '  5,  '  -2  _.  : 
 7  Brent  Snyder 


 B.  Snyder-  3/  16/  00 


 10 
 __--. 
 .  .-  -.  .  _._.  .-.I  - 
138
 Before  the  Federal  Communications  Commissio  %!  AR 
 2  3  zooo  Comments  of  M.  Grae  Griffin 


 Regarding  the  Public  Interest  Obligations  FCC  fNAH  RUUWi 
 Of  Television  Licensees 


 On  January  26,2000,  the  Federal  Communications  Commission  published  a  request 
 for  comments  regarding  potential  changes  in  the  public  interest  obligations  of  broadcasters  as 
 they  transition  to  digital  transmission  technology.  Notice  of  Proposed  Rulemaking,  65  Fed. 
 Reg.  4211  (Jan.  26,200O).  In  response,  I  would  like  to  communicate  my  views  as  an  avid 
 television  consumer,  and  one  who  hates  to  see  unnecessary  governmental  regulations.  From 
 the  reports  I  have  read,  you  have  received  a  lot  of  pressure  from  public  advocacy  groups  to 
 increase  the  quality  and  quantity  of  public  interest  programming.  I  am  writing  in  opposition 
 to  these  lofty,  yet  misguided,  goals,  as  they  can  only  lead  to  broadcasters  bearing  an  unfair 
 cost  burden,  and  the  needless  waste  of  market  resources. 


 Introduction  and  Background 
 Public  advocacy  groups  postulate  that  broadcasters  can  better  serve  the  public 
 interest  by  donating  more  broadcast  time  for  political  discourse,  providing  more  educational 
 programming,  and  developing  more  programs  that  focus  on  community  affairs.  Furthermore, 
 they  claim  that  80%  of  the  public  is  interested  in  broadcasters  providing  these  services  in 
 exchange  for  their  free  licenses.    However,  these  groups  fail  to  recognize  that  broadcasters 
 already  donate  time,  provide  station  resources  and  donate  money  in  the  public  interest.  In 
 addition,  these  groups  have  failed  to  answer  the  critical  question  of  whether  people  would 


 1  Benton  Foundation,  PROMOs  Poll  on  American  Attitudes  About  TV  Programming,  Public  Interest 
 Obligations  in  Digital  Age,  1999  WL  4634442,  January  14,  1999. 


 ..-  *.    .  _-_  .^-_  .._._.  ----  l._  l  ll  l-  l.  ,-.---  .-  I--.-  -.  1_-  --, 
139
 actually  watch  more  public  interest  broadcasting.  Ratings  have  traditionally  answered  this 
 question  in  the  negative. 
 It  is  doubtful  that  mandating  minimum  public  interest  standards  in  addition  to 
 providing  more  programming  would  increase  historically  poor  ratings.  Therefore,  there  is  no 
 need  to  penalize  broadcasters  by  forcing  them  to  provide  programming  that  no  one  will  watch. 
 Broadcasters  bore  a  similar  burden  when  they  were  forced  to  provide  additional  educational 
 programming  for  children.  The  federal  mandate  did  not  provide  a  more  useful  tool  with 
 which  to  educate  our  children,  rather  it  resulted  in  programs  that  kids  werent  interested  in 
 watching.  2 
 Broadcasters  are  Dayinp  their  fair  share 
 The  public  interest  programming  debate  is  fueled  by  a  multitude  of  erroneous 
 assumptions  made  by  these  public  advocacy  groups.  First,  they  are  ignoring  the  fact  that  the 
 broadcast  industry  is  already  donating  $5  billion  per  year  in  airtime  for  public  service 
 announcements  and  political  coverage,  and  raising  $2  billion  per  year  for  charities,  all  in  the 
 public  interest.  3  They  are  also  ignoring  the  existing  local  news  programs  (morning,  mid- 
 day,  afternoon  and  nightly  news)  and  community  commitments  (broadcasting  local  church 
 services  on  Sunday,  announcing  upcoming  community  events,  public  service  announcements, 
 etc.)  that  stations  are  already  making.  Finally,  they  are  overlooking  the  fact  that  some  stations 
 are  beginning  to  comply  with  requests  to  donate  more  airtime  for  the  public  interest.  E.  W. 
 Scripps  Co.  has  announced  that  it  will  provide  free  airtime  to  candidates  on  its  stations  in 


 2  See  Farhi,  Flunking  the  Ratings  Test  CBS  Dumps  Educational  Childrens  Shows,  The  Washington  Post, 
 January  9,  1998.  at  Al. 


 3  Chen,  Issue  of  TV  Air  Time  for  Public  Affairs  Is  Raised  Anew,  The  Wall  Street  Journal,  December  15, 
 1999,  at  B4. 
140
 Cleveland,  Cincinnati,  Detroit,  Tampa,  Baltimore,  Phoenix,  West  Palm  Beach,  Kansas  City, 
 and  Tulsa. 
 Despite  these  facts,  public  interest  groups  continue  to  push  broadcasters  to  go  well 
 beyond  current  efforts.    One  reason  they  give  is  that  broadcasters  are  receiving  a  gift  of 
 public  resources  that  has  resulted  in  a  $70  billion  dollar  windfall.  6  Another  reason  is  that, 


 according  to  the  Benton  Foundation  poll,  80%  of  Americans  feel  that  broadcasters  should 
 meet  additional  public  interest  obligations. 
 Broadcasters  have  the  right  to  be  skeptical  of  such  a  poll,  because  ratings  have  not 
 historically  validated  these  feelings.  If  an  opportunity  to  generate  an  80%  share  of  audience 
 existed,  broadcasters  would  have  certainly  capitalized  on  it  by  now.  More  than  likely  this  poll 
 shows  that  people  are  asking  for  something  that  they  have  no  intention  of  using.  Asking  for 
 more  public  interest  programming  in  a  poll  does  not  correlate  to  actually  sitting  down  to 
 watch  the  program  (a  point  I  will  elaborate  in  the  next  section). 
 Additionally,  these  groups  are  ignoring  the  economic  pressure  that  broadcasters  are 
 facing  from  the  continual  evolution  of  entertainment  outlets  such  as  the  Internet,  cable,  and 
 satellite  television.  Currently,  broadcast  network  ratings  are  on  life  support  as  cable 
 television  continues  to  diminish  the  networks  share  of  the  pie.  7  The  primary  result  is  less 
 advertising  revenue.  Thus,  broadcasters  are  not  generating  the  profit  levels  that  will  sustain 
 programming  that  generates  even  less  revenue  than  their  regular  programming. 
 These  groups  must  also  take  into  account  the  considerable  expense  in  equipping  and 


 4  Stammen,  Scripps  Stations  Offer  Free  Airtime  in  Political  Races,  The  Cincinnati  Post,  January  17, 
 2000,  at  4C.  5 
 http:  l/  www.  bettertv.  or&&  eback.  html  6 
 g.  7 
 Brown,  98  In  Review:  Not  A  Prettv  Picture,  Electronic  Media,  January  4,  1999. 


 3 
141
 operating  both  analog  and  digital  television  stations  over  the  lengthy  transition  time.  There  is 
 and  will  be  considerable  costs  involved  with  constructing  new  transmitter  towers, 
 transmitters,  control  rooms,  and  antennas.  There  is  no  doubt  that  larger  television  markets 


 like  New  York  will  be  able  to  make  up  these  costs  faster  than  smaller  markets  like  Glendive, 
 Montana.  Larger  markets  have  the  audiences  and  the  advertisers  to  make  the  transition  work 
 more  effectively  for  them.  However,  smaller  markets  do  not  have  these  resources  readily 
 available,  and  feel  that  that  the  switch  to  digital  television  is  a  mandate  for  them  to  loose 
 money.  Forcing  them  to  provide  certain  programming  will  only  compound  the  problem. 
 Thus,  the  short-  term  future  for  many  broadcast  markets  has  a  lot  of  economic  downside. 
 With  that  forecast,  there  is  no  need  to  continue  to  punish  them  by  restricting  the  ways  they 
 can  generate  revenue  to  compensate  for  their  losses. 
 Learn  From  Past  Mistakes 
 Not  to  long  ago,  the  Commission  required  broadcasters  to  develop  educational 
 programming  that  met  certain  minimum  standards  for  children.  Because  of  First  Amendment 
 issues  the  standards  were  left  vague.  In  spite  of  the  vague  standards,  broadcasters  introduced 
 a  plethora  of  new  childrens  programs.  Now  studies  are  indicating  that  this  approach  has 
 been  a  failure,  claiming  one  in  five  educational  shows  has  little  to  no  educational  value.   
 This  study  also  indicated  that  there  is  little  in  the  way  of  childrens  programming  at  night, 
 when  children  are  most  likely  to  view  television.  Interestingly,  this  study  also  showed  that  the 
 federally  mandated  program  resulted  in  a  reduction  of  locally  produced  educational 
 programming. 
 These  studies  are  of  little  consequence  because  kids  arent  watching  the  programs. 
 Instead  of  watching  what  parents,  politicians,  and  public  interest  groups  asked  for,  kids 


 4 
142
 quickly  turned  to  cable,  video  games,  the  Internet,  CD-  ROMs  or  whatever  they  found  to  be 
 more  entertaining.  One  example  makes  this  point  abundantly  clear.  Popular  Mechanics  for 
 Kids  has  performed  better  than  many  childrens  shows  but  still  gets  ratings  that  are  30 
 percent  lower  than  a  show  like  Beast  Wars.   
 The  low  ratings  have  lead  to  high  turnover  in  childrens  programming.  Between  19 
 and  26  percent  of  the  childrens  titles  in  1998  were  scrapped  before  the  new  1999  season.  lo 
 Despite  this,  broadcasters  continue  to  try  and  provide  educational  programs  that  deliver 
 ratings.  However,  this  is  extremely  difficult  because,  as  one  analyst  put  it,  educational 
 programming  is  the  television  equivalent  of  broccoli.  l1  There  is  little  question  why 
 broadcasters  arent  excited  about  being  forced  to  provide  what  amounts  to  the  same  type  of 
 programming  for  their  parents. 
 Free  airtime  only  benefits  popular  candidates  and  maior  political  groups 
 One  of  the  most  controversial  issues  surrounding  the  public  interest  programming 
 debate  is  the  donation  of  airtime  for  political  discourse.  Some  feel  the  public  interest 
 programming  should  be  an  endless  line  up  of  different  political  discussions  about  issues  of 
 vital  importance  to  the  people  they  represent.  Some  envision  the  broadcast  day  starting  with 
 NOW  activists  discussing  current  events  without  hostile  opponents  interrupting  and 
 distorting  the  message,*  followed  by  the  NAACP  hour,  and  then  a  round-  table  discussion 
 hosted  by  the  League  of  United  Latin  Americans  Citizens.  Finally,  the  broadcast  day  would 
 end  with  a  panel  of  ACLU  members  discussing  the  decay  of  civil  liberties. 


 8  http:  liwww.  aapcpenn.  org/  kidstv99/  release.  html 
 9  Farhi,  Flunking  the  Ratings  Test  CBS  Dumps  Educational  Childrens  Shows,  The  Washington  Post, 


 $m.  mry  9,  1998,  at  A  1. 
 http://  www.  aapcpenn.  org/  kidstv99/  release.  html  11 
 Farhi,  Flunking  the  Ratings  Test  CBS  Dumps  Educational  Childrens  Shows,  The  Washington  Post, 
 January  9,  1998,  at  A  I. 
143
 Others  see  an  opportunity  for  local  politicians  to  use  otherwise  cost  prohibitive 
 television  time  as  a  means  to  get  their  message  across  to  a  mass  audience.  They  have  a 
 vision  of  congressmen  debating  issues  of  local  importance,  or  the  school  board  candidates 
 debating  the  future  of  area  schools.  All  of  this  time  is,  of  course,  donated,  because  their 
 message  serves  the  public  interest  by  improving  the  democratic  process.  Furthermore,  they 
 feel  that  this  gesture  is  a  critical  step  in  campaign  finance  reform. 
 While  these  ideas  are  fine  from  a  broad  perspective,  the  actual  means  of 
 implementing  them  are  full  of  pitfalls.  First,  networks  already  donate  free  time  to  political 
 candidates  in  addition  to  the  discounted  rates  they  must  provide  for  such  purposes.  In  fact,  in 
 the  last  election  cycle,  the  National  Association  of  Broadcasters  estimates  that  broadcasters 
 donated  $148  million  in  free  time.  i3  An  additional  $15  million  was  offered,  but  turned 
 down.  l4  Moreover,  broadcasters  provide  endless  hours  of  news  coverage,  televised  debates, 
 and  free  time  for  candidates  that  want  to  appear.  Some  argue  that  providing  more  time  will 
 make  campaign  fund-  raising  less  of  an  issue.    In  reality,  more  heavily  funded  parties  will 
 have  to  spend  more  to  counterbalance  the  messages  provided  by  their  opponents  during  their 
 free  airtime. 
 Second,  and  more  importantly,  these  groups  have  failed  to  realize  that  airtime  is  a 
 finite  commodity.  Therefore,  it  will  be  impossible  to  provide  airtime  to  all  of  the  groups  or 
 candidates  that  will  want  access.  There  will  have  to  be  some  standard  to  decide  who  gets  to 
 receive  the  time.  However,  almost  any  standard  that  is  created  will  have  First  Amendment 


 12  Toledo  and  Rabin,  NOW  Foundation  Calls  for  Better  Television,  National  NOW  Times,  October  1, 
 1999.  13 
 Boliek.  FCC  Begins  Public  Service  Work,  Hollywood  Reporter,  December  16,  1999.  14  J& 


 15  &  Omstein,  One  Small  Step  for  TV  Stations,  One  Giant  Leap  for  Political  CampaiPning,  USA  Today, 
 December  15,  1999.  at  3  1  A. 


 6 


 -  -  .  ...  I_,..  -._-.-.-_..---  ._  I 
144
 implications.  Though  they  would  not  want  to  squeeze  the  KKK  hour  between  the  Rainbow 
 Coalition  and  La  Razas  programs,  there  would  be  no  way  to  justify  barring  them  from  the 
 public  airwaves.  Along  those  same  lines,  station  manages  would  want  to  only  provide 
 limited  airtime  to  the  serious  candidates,  leaving  candidates  without  a  major  party 
 affiliation  with  no  access. 
 So  who  benefits?  Large  established  groups  and  candidates  with  popular  party 
 affiliations.  These  entities  have  the  means  to  put  a  great  deal  of  pressure  on  station  owners  at 
 the  local  level.  However,  their  less  powerful  political  or  ideological  rivals  will  not  likely  fair 
 so  well.  It  is  a  simple  truth  of  politics;  those  that  can  mount  the  most  political  pressure  will 
 have  their  demands  met.  There  is  no  way  that  such  a  plan  could  be  consistent  with  the 
 principles  of  the  First  Amendment,  or  benefit  the  public  interest.  This  may  be  why 
 Congress  hasnt  pushed  very  hard  for  a  specific  program.  Through  much  thought  and  debate, 
 they  have  undoubtedly  concluded  that  these  types  of  mandates  would  create  more  problems 
 than  they  solve. 
 Will  the  public  continue  to  be  interested? 
 I,  like  many  Americans,  believe  in  the  principle  behind  public  interest  programming.  I 
 think  that  involvement  by  the  local  media  outlets  plays  an  important  role  in  community 
 development.  For  the  most  part  audience  response  has  driven  broadcasters  to  voluntarily 
 meet  the  goals  the  public  deemed  important.  However,  it  seems  apparent  that  to  have  the 
 federal  government  taking  on  the  role  of  station  manager  would  hardly  improve  televisions 
 role  in  the  community.  Assuming  otherwise  dismisses  the  work  done  by  local  broadcasters 
 to  determine  what  will  and  wont  work  in  the  communities  they  serve. 


 7 
 I  ~  .._.._.  ._..__  _  _-_  -___-.  .-  I--.-...--.~.-  -__- 
145
 Furthermore,  it  would  seem  prudent  to  wait  and  monitor  the  role  that  digital  television 
 will  actually  play  in  society.  People  from  both  sides  of  the  aisle  will  agree  that  the  role  of 
 broadcast  television  is  currently  evolving.  As  the  Internet,  cable,  and  satellite  television 
 blossom,  the  public  may  not  be  as  interested  in  many  of  the  features  of  broadcast  television. 
 It  is  possible  that  broadcast  television  may  become  strictly  an  entertainment  vehicle,  while 
 people  choose  to  get  their  information  from  other  sources.  It  is  too  early  to  tell  just  yet,  so 
 new  mandates  seem  premature. 
 Conclusion 
 There  is  certainly  no  doubt  that  broadcasters  owe  a  duty  to  the  public.  The 
 Telecommunications  Act  provides  that  Congress  intended  for  broadcast  licensees  to  have  the 
 duty  to  serve  the  public  convenience,  interest  and  necessity.  16  However,  Congress  did  not 
 intend  for  broadcasters  to  serve  the  public  interest  to  their  financial  detriment.  Requiring 
 new,  more  stringent  public  interest  standards  would  certainly  be  a  detriment.  Had  Congress 
 intended  broadcasters  to  pay  for  their  licenses,  they  would  have  written  it  into  the  statute. 
 Along  those  same  lines,  if  Congress  wanted  to  impose  a  tax  on  broadcasters  in  exchange  for 
 the  broadcast  resources,  they  would  have  provided  for  it  in  the  statute.  But  they  havent,  and 
 the  FCC  should  not  try  and  backdoor  such  financial  penalties  under  the  guise  of  the  public 
 interest.  Therefore  I  oppose  any  attempt  to  try  and  put  the  financial  burden  of  the  public 
 interest  on  the  broadcast  industry. 


 16  47  U.  S.  C.  9;  303 
 8 


 -  ._  ~..-..  _  -.  _  -  -.-..  .I 
146
 Dykstra,  1 
 To: 
 From: 
 William  E.  Kennard,  Chairman  -  Federal  Communication 
 Thomas  A.  Dykstra  MAR  2  3  moo 
 cc:  Professor  Glenn  H.  Reynolds 
 Date:  March  9,  2000 
 RE:  Public  Interest  Obligations  of  Television  Broadcast  Licensees 
 FCC  Docket  No.  99-  390 
 65  Fed.  Reg.  4211-  01 


 Dear  Chairman  Kennard: 
 In  response  to  the  FCCs  request  for  public  comments  concerning  the  public 
 interest  obligations  of  digital  television  broadcast  licensees,  I  would  like  to  voice  my 
 concerns  as  both  a  television  consumer  and  future  participant  in  local  politics.  From  the 
 comments  that  have  been  filed  and  posted  thus  far,  I  have  noticed  that  a  number  of 
 groups  argue  in  favor  of  modified  public  interest  requirements  for  providers  of  digital 
 television.  While  I  agree  with  the  underlying  ideals  of  both  the  NO1  and  many  of  the 
 comments,  I  would  respectfully  argue  for  more  sweeping  measures  as  concern 
 encouraging  political  discourse. 
 I.  Introduction  and  Background: 
 Since  the  introduction  of  the  radio  wave  medium  of  communication,  there  has 
 been  an  understanding  that,  given  the  inherently  public  nature  of  their  medium, 
 broadcasters  have  a  special  responsibility  to  their  respective  communities.  The 
 enforcement  of  broadcasters  responsibilities  to  the  public[  s]  interest,  convenience,  and 


 __-_  _  -^,..  _-.--  -1.111~.---  ---  -  ..__  ._  . 
147
 Dykstra,  2 
 necessity    has  been  legitimately  delegated  to  the  FCC  by  Congress*,  and  with  this 
 responsibility  comes  the  prerogative  to  review  the  public  interest  requirements  of 


 broadcasters  in  light  of  the  technological  advances  of  digital  television.  With  digital 
 advancements  including  the  potential  for  interactive  television  and  viewer  control  over 
 various  features  of  the  presentation  of  programming,  the  potential  for  advancing  the 
 public  good  is  tremendous.  With  that  in  mind,  I  hope  to  address  one  of  the  legitimate 
 concerns  with  the  NOI,  namely  that  it  often  mus[  es]  about  public  interest  mandates  that 
 have  no  discernable  nexus  to  the  transition  to  digital  technology.  3 
 I  urge  the  Commission  to  adopt  more  extensive  measures  to  encourage  political 
 discourse.  Specifically,  I  support  measures  that  would  require  broadcasters  of  digital 
 television  to  promote  political  discourse  by  providing  interactive  coverage  of  public 
 meetings  within  their  communities.  4  Furthermore,  I  would  urge  the  Commission  to 
 compel  the  broadcasters  to  utilize  the  technological  benefits  of  digital  television  to  make  I 
 these  broadcasts  both  understandable  and  meaningful  for  all  of  those  able  to  receive  free 
 television.  While  Americans  are  able  to  view  the  workings  of  their  national  legislatures 
 through  CSPAN  I  and  II,  there  exists  no  counterpart  for  local  legislatures  and 
 committees.  As  a  result,  those  who  are  unable  to  attend  the  meetings,  whether  because  of 
 work  conflicts  or  the  unavailability  of  transportation  to  the  meetings,  are  left  to  the  mercy 
 of  local  newspapers  for  details  of  their  communitys  governing  committees. 


 NOII  1. 
   FCC  v.  WNCN  Listners  Guild,  4.50  U.  S.  582,596  (1981)  quoting  FCC  v.  Nat1  Citizens  Comm.  For  Broadcasting,  436  U.  S.  775,  810  (1978). 


 3  Separate  Statement  of  Commissioner  Harold  Furchtgottroth,  p.  1. 
 4  Examples  of  community  meetings  that  a  licensee  may  cover  include,  but  are  certainly  not  limited  to 
 School  Board  Meetings,  Chamber  of  Commerce  Meetings,  and  Town  Council  Meetings. 
148
 Dykstra,  3 
 Furthermore,  those  in  the  community  who  do  not  have  access  to  newspapers  or  are 
 unable  to  read  English  have  little  or  no  say  in  the  communitys  governance. 
 II.  Promotion  of  Political  Discourse  Through  Digital  Television: 
 By  requiring  digital  broadcast  licensees  to  provide  coverage  of  community 
 meetings,  while  utilizing  all  of  the  benefits  of  digital  television,  the  FCC  would 
 accomplish  a  number  of  the  goals  and  priorities  that  it  sets  forth  in  the  NOI.  Firstly,  the 
 above  measures  would  satisfy  in  part  the  broadcasters  responsibility  to  the  needs  and 
 interests  of  its  community  of  license  by  promoting  interest  and  access  to  the  communitys 
 administration. 
 Second,  the  possibility  of  interactive  television  could  go  a  long  way  towards 
 involving*  those  with  disabilities  in  the  administration  of  community  affairs.  An  elderly 
 person  with  hearing  difficulties  could  take  advantage  of  the  close  captioning  option,  and 
 be  able  to  respond  interactively  with  those  conducting  the  meeting  through  the  use  of  the, 
 Internet.  In  addition,  those  who  are  of  able  mind,  but  disabled  in  a  way  that  would 
 ordinarily  prevent  them  from  actually  attending  community  meetings  would  be  able  to 
 participate  in  the  communitys  affairs  as  well. 
 Third,  the  ability  of  digital  licensees  to  provide  services  in  different  languages 
 would  serve  to  promote  the  goal  of  diversity  in  politics  and  the  community  as  a  whole. 
 The  promotion  of  diversity  is  particularly  appealing  in  community  matters  in  that  those 
 from  other  countries  who  have  not  yet  learned  English  could  offer  valuable  insights  to 
 value  and  responsibility  of  the  freedoms  we  enjoy  in  America.  An  illustration  of  how 
 valuable  digital  television  could  be  to  the  goal  of  diversity  is  the  example  of  one  of  my 
 college  friends  and  her  family  from  Romania.  While  Irene  had  managed  to  learn  English, 
149
 Dykstra,  4 
 her  father,  who  MS  a  significant  leader  in  the  freedom  movement  in  Romania,  had  yet  to 
 learn,  and  had  great  difficulty  communicating  with  others.  I  dare  say  that  his  views  on 


 the  responsibilities  that  follow  freedom  would  be  of  value  to  any  community,  and  with 
 the  advancements  of  digital  television,  it  may  be  possible  for  his  community  to  benefit 
 from  his  insights. 
 Fourth,  interactive  community  meetings  would  provide  an  education  tool  for 
 children,  another  prime  objective  of  the  FCC.  By  allowing  children  a  voice  in  the 
 community,  especially  School  Board  meetings,  through  two  mediums  that  they  are 
 intimately  familiar  with,  television  and  computers,  broadcasters  would  serve  to  promote 
 childrens  interest  in  their  communities,  and  ingrain  civic  responsibilities.  Furthermore, 
 to  anyone*  who  would  argue  that  such  a  measure  would  be  meaningless  given  kids 
 terminal  apathy  when  it  comes  to  local  administrative  matters,  I  would  suggest  that  he  or 
 she  consult  a  child  about  many  communities  measures  to  enact  school  uniforms.  7 
 III.  Implementation  of  Proposed  Requirements: 
 Returning  again  to  Commissioner  Harold  Furchtgottroths  complaints  with  the 
 NOI,  I  will  articulate  a  number  of  ways  in  which  increased  political  discourse  can  be 
 realized  through  digital  television  with  a  minimum  of  intrusion  on  the  broadcasters 
 interests.  With  the  advent  of  digital  television,  broadcasters  who  before  could  only 
 utilize  one  channel,  can  now  utilize  five.  With  the  increase  of  four  available  channels,  it 
 would  not  be  a  terrible  or  unreasonable  burden  to  require  broadcasters  to  devote  a  portion 
 of  a  few  or  even  just  one  of  the  channels  air  time  to  local  community  matters.  In  the 
 alternative,  however,  if  the  broadcasters  find  this  requirement  to  be  too  burdensome,  then 
 it  may  be  possible  to  create  a  subsidy  system  in  which  the  broadcasters  support  a  channel 


 ! 
 - 
   ..--  _Il-.------  . 
150
 Dykstra,  5 
 for  each  community  that  continually  broadcasts  community  matters,  as  does  the  cable 
 industry  for  CSPAN  I  and  II.  Either  way  the  broadcasters  choose  to  serve  the 
 community,  it  does  not  appear  that  the  burden  would  be  intolerable. 
 IV.  Arguments  Against  the  Imposition  of  Additional  Requirements  on 
 Broadcasters: 
 In  browsing  the  comments  posted  on  the  FCC  Internet  site,  as  well  as  the 
 concurring  and  dissenting  opinions  attached  to  the  NOI,  I  have  come  across  a  number  of 
 valid  criticisms  of  additional  requirements  for  broadcasters  of  digital  television.  One 
 criticism  of  additional  public  service  burdens  on  broadcasters  is  that  the  advent  of  new 
 digital  technology  of  itself  should  not  justify  additional  public  service  requirements.  This 
 argumentassumes  that  there  is  a  fixed  level  of  public  service  required  of  the  broadcasters 
 regardless  of  advances  in  technology.  If  government  regulations  were  static,  as  this 
 argument  assumes,  then  the  government  would  still  be  limited  to  regulations  established 
 for  typewriter  and  dirigible  safety.  More  reasonable,  however,  is  the  argument  that 
 broadcasters  responsibilities  to  their  communities  should  be  commensurate  with  their 
 technological  advances.  From  this  argument,  it  makes  sense  for  broadcasters  to  assume 
 greater  roles  in  community  service,  specifically  in  the  advancement  of  political  discourse, 
 as  their  ability  to  broadcast  becomes  more  flexible  and  advanced. 
 Another  valid  criticism  of  increased  public  service  requirements  for  broadcasters 
 is  the  argument  that  expanded  community  service  is  contrary  to  the  current  trend  of 
 deregulation,  and  is  a  symptom  of  the  federal  governments  insistence  on  big 
 government.    Assuming  that  the  first  prong  of  the  argument  is  true,  and  that  the 
 government  is  in  a  period  of  deregulation,  the  fact  that  one  would  argue  that  an  effort  to 


 5  See  note  3  supra. 
151
 Dykstra,  6 
 increase  political  discourse  is  symptomatic  of  big  government  is  interesting.  In  the 
 NOI,  the  initial  proposal  in  support  of  political  discourse  involves  increased  airtime  for 
 political  candidates.  While  the  NO1  does  not  go  into  detail,  one  can  only  assume  that  the 
 increase  in  airtime  is  across  the  political  spectrum,  involving  neo  -  Marxists  as  well  as 
 Bombs  and  Bridges  John  Birch  Society  members.  Therefore,  it  seems  paradoxical  that 
 one  would  maintain  that  an  increase  in  political  candidate  awareness,  whoever  the 
 candidate  may  be,  would  lead  directly  to  big  government.    Moreover,  the  more 
 sweeping  provisions  that  I  propose  would  lead  to  an  even  greater  rise  in  voter  awareness, 
 allowing  the  populace,  if  they  should  so  choose,  to  strike  down  big  government 
 measures. 
 Yet  another  criticism  of  additional  public  service  responsibilities  for  broadcasters 
 is  that  it  is  not  at  all  clear  that  free  airtime  would  advance  the  .  .  .  goals  of  promoting 
 democracy  and  better  educating  the  voting  public.  6  Even  if  one  takes  the  NOIs 
 proposals  for  increased  political  discourse  involving  free  air  time  for  political  candidates, 
 it  is  hard  to  countenance  an  argument  that  providing  more  information  on  a  candidates 
 positions  and  weaknesses  in  the  opponents  campaign  does  not  educate  the  populace,  and 
 thereby  lead  to  a  more  vital  democracy.  The  opponents  argument  becomes  even  more 
 baseless  when  applied  to  my  proposals  for  heightened  public  service  requirements.  By 
 providing  interactive  broadcasts  of  local  political  and  administrative  meetings,  it  seems 
 clear  that  the  public  would  have  more  opportunities  to  educate  themselves  on  and  involve 
 themselves  in  community  matters. 


 6  Separate  Statement  of  Commissioner  Harold  Furchtgottroth,  p.  3  quoting  NOI  9  3  1. 


 __..  _  __  .-  ..__.  --_  _  .,,.__  ._..  ^  ....I  ^..  -  -I  .  .-.. 
 -.  ll_- 
152
 Conclusion 
 Dykstra,  7 


 In  conclusion,  Mr.  Commissioner,  I  think  that  the  ideals  behind  the  promotion  of 
 political  discourse  through  additional  public  service  requirements  is  both  noble  and 
 necessary.  In  fact,  I  think  that  more  sweeping  measures  should  be  adopted  by  the  FCC 
 requiring  broadcasters  to  somehow  implement  community  political  and  administrative 
 meetings  into  the  program  line  up.  In  so  doing,  the  FCC  would  further  virtually  all  of  its 
 stated  goals  in  working  with  broadcasters  to  serve  the  public  interest,  convenience,  and 
 necessity.  When  I  was  a  college  student,  I  volunteered  with  a  local  senators  branch 
 office.  Most  of  my  time  was  spent  processing  calls  from  constituents  that  had,  through 
 watching  CSPAN,  become  concerned  with  a  particular  piece  of  legislation,  and  wanted  to 
 voice  their  epinion  on  the  matter  so  that  our  office  could  forward  their  ideas  to  the 
 senator.  While  this  work  required  a  great  deal  of  patience  and  time,  it  was  nothing  short 
 of  inspirational  to  be  such  a  vital  cog  to  democracy.  In  implementing  in  part  or  whole  my 
 proposals,  it  is  possible  to  generate  that  type  of  enthusiasm  at  every  level  of  government. 
153
 To: 
 From: 
 cc: 
 Date: 
 Re: 


 MAR  2  3  zooo 
 m  MAIL 


 Magalie  Roman  Salas 
 Robert  Lee  McElroy  IV 
 Professor  Glenn  Reynolds 
 3/  10/  00 
 Comments  on  Proposed  Public  Interest  Obligations 
 of  Television  Broadcast  Licensees 


 The  FCC  requested  comments  on  proposals  of  how 
 broadcasters  can  best  serve  the  community  with  the  advent  of 
 digital  television"  After  researching  this  topic  on  the 
 Internet,  it  is  clear  that  broadcasters  were  given  a  gold 
 mine  by  the  1996  Telecommunications  Act.  l  For  this  reason, 
 broadcasters  should  adhere  to  certain  rules  created  by  the 
 your  agency. 
 Digital  television  is  an  amazing  leap  in  technology. 
 Now  instead  of  one  broadcast,  a  station  will  be  able  to  send 
 out  different  broadcasts  over  one  frequency  at  the  same 
 time.  This  allows  for  more  varied  programming  and  a  chance 
 to  increase  television's  usefulness  to  the  public.  How  to 
 accomplish  this  goal  is  the  problem.  This  creates  the  first 
 issue.  Should  the  FCC  regulate  digital  television  with 
 rules  requiring  compliance  with  minimum  standards  or  just 
 furnish  recommendations  to  the  stations? 


 www.  bettertv.  org/  background.  html 


 _-.  --  ..-  ,...  -..  -.--.  -  .^  .__  .  -.,..  .I....  ix--. 
154
 Normally  I  would  be  against  governmental  regulation  of 
 an  industry.  I  support  it  here  for  two  reasons.  First  the 
 broadcasters  received  a  windfall  in  garnishing  the  digital 
 spectrum  for  free  under  the  1996  Telecommunications  Act. 
 Second,  television  has  become  America's  most  important 
 information  medium*. 
 My  first  principle  relies  largely  on  the  idea  that 
 Congress  gave  the  airwaves  to  the  stations,  so  the  stations 
 owe  Congress,  and  thus  the  people.  If  broadcasters  wanted 
 the  freedom  to  air  whatever  show  they  wanted  to  air,  in 
 whatever  format  they  wanted  to,  they  should  have  purchased 
 the  digital  airwaves.  The  FCC  has  the  right  and  the  duty  to 
 impose  rules  and  regulations  on  what  the  stations  can  air. 
 The  second  reason  is  policy  based.  Since  its  inception 
 television  has  become  more  and  more  important  as  an 
 information  tool.  One  study  found  that  69  percent  of 
 Americans  say  TV  is  the  most  trusted  source  of 
 information."  3  This  is  only  for  information  and  news,  think 
 of  how  many  people  just  watch  for  entertainment.  Children 
 are  targeted  also.  Starting  at  3:  OOpm  everyday,  Fox  starts 
 two  hours  of  programming  aimed  exclusively  at  elementary 


 school  and  pre-  school  age  children.  As  a  powerful  influence 


   www.  bettertv.  or,  g/  background.  html 
155
 upon  all  Americans,  broadcasters  have  a  duty  to  serve  the 
 public  interest. 
 The  major  guideline  that  television  stations  must 
 follow  is  serve  public  interest."  4  Now  that  it  is  clear 
 that  the  FCC  should  regulate  the  broadcasters,  what  should 
 the  FCC  focus  on?  A  very  important  issue  is  political 
 coverage. 
 As  the  21    century  begins,  the  importance  of  increasing 
 political  discourse  and  information  available  about  our 
 representatives  is  obvious.  Your  own  notice  that  I  am 
 commenting  on  notes  this  importance  by  citing  the  Supreme 
 Court  and  other  studies.  5  For  that  reason  you  asked  for 
 suggestions  on  how  to  increase  the  broadcasting  of  political 
 shows  and  viewpoints. 
 The  simplest  option  is  to  require  broadcasters  to  give 
 an  allotted  amount  of  time  to  candidates  during  prime  hours. 
 This  would  be  a  mistake  for  two  reasons.  The  most  prominent 
 is  that  a  voluntary  system  works  now.  Your  own  report  cites 
 the  National  Association  of  Broadcasters  report,  which 
 states  that  broadcasters  devoted  almost  150  million  dollars 
 to  political  campaigns.  6  In  a  poll  done  on  Super  Tuesday, 
 almost  half  of  the  respondents  surveyed  said  that  local 


 4  1996  Telecommunications  Act 
   65  Fed.  Reg.  4211,4216 
 6  65  Fed.  Reg.  4211,4216 
156
 disabled.  Here  I  think  digital  television  is  a  great  tool 
 to  be  used.  The  increased  bandwidth  will  allow  broadcasters 
 to  air  programs  of  higher  quality  and  provide  more  access  to 
 them.  Since  digital  broadcasters  have  much  more  bandwidth 
 they  can  reasonably  provide  closed  captioning,  video 
 description,  or  other  comparable  means  for  the  disabled. 
 People  for  Better  TV  wants  stations  to  "provide  closed 
 captioning  and  description  services  for  the  blind  of  PSAs, 
 public  affairs  programming,  and  political  programming."  ' 
 They  would  like  to  see  this  implemented  by  2006,  at  the 
 latest.  g  Currently  mandatory  closed  captioning  is  being 
 phased  in  (finished  around  2008.) 
 The  FCC  should  adopt  guidelines  specifically  relating 
 to  the  use  of  digital  television  to  increase  access  for  the 
 disabled.  2006  is  not  an  unreasonable  date  and  the  FCC 
 should  mandate  that  broadcaster  meet  this.  The  FCC  should 
 constantly  look  to  develop  new  services  that  digital 
 television  could  provide  the  disabled.  Closed  captioning  or 
 comparable  descriptive  service  should  be  available  when 
 stations  begin  broadcasting  in  digital.  Broadcasters  were 
 given  billions  of  dollars  worth  of  airwaves;  l'  the  least  that 


 865  Fed.  Reg.  4211,4214 
 96.5  Fed.  Reg.  4211,4214 
 lo  www.  cme.  or&  xdCn.  html 


 _  --.  -.  -l.  l_-.-----  l^  lII  -_-.- 
157
 they  can  do  is  provide  service  to  make  it  more  accessible 
 for  the  disabled. 


 Another  important  goal  for  the  FCC  is  increasing 
 diversity  in  voice  and  ownership  of  digital  television. 
 Digital  television  provides  an  excellent  opportunity  to 
 increase  the  diversity  of  the  voice  on  television.  With 
 multiplexing,  each  local  station  could  provide  news  coverage 
 focussing  on  different  areas  of  the  community. 
 Deciding  where  this  could  be  done  will  be  more 
 difficult.  The  FCC  should  not  mandate  that  any  or  all 
 stations  do  this.  Rather,  wherever  fiscally  profitable  this 
 would  be  an  excellent  way  to  increase  the  political,  social, 
 and  moral  views  on  television.  To  spur  this  movement 
 incentives  should  be  given  to  stations  that  multicast  local 
 coverage.  If  viewers  really  want  more  diverse  television 
 views  it  will  be  evident  from  the  success  or  failure  of 
 these  secondary  channels. 
 Finally,  with  the  advent  of  digital  television  there 
 are  some  people  who  want  stations  to  disclose  more 
 information  to  the  public  on  their  affairs.  Currently 
 stations  must  file  "quarterly  reports  on  their  non- 
 entertainment  television  and  children's  programming."  l' 
 People  for  Better  TV  want  a  more  comprehensive  survey 


 I1  65  Fed.  Reg.  4211,4213 
158
 including  electronic  surveys  and  announcements."  The 
 Advisory  Committee  asked  for  more  standardized  forms  that 
 are  easier  for  the  public  to  understand."  They  also 
 recommend  that  the  stations  make  this  information  more 
 available  to  the  public. 
 I  think  that  these  measures  are  a  waste  of  time  and 
 money.  During  the  1980's  the  FCC  vacated  regulations  very 
 similar  to  these.  14  There  is  no  reason  for  them  to  reinstate 
 them.  Almost  everyday  during  the  local  news  and  during  the 
 children's  programming  Knoxville  affiliates  tell  me  where 
 and  how  I  can  find  the  information  currently  required. 
 Making  them  put  it  on  the  Internet  or  including  simplified 
 forms  will  not  make  me  care  anymore  about  it  or  make 
 television  better.  The  best  thing  for  the  Commission  to  do 
 is  maintain  its  current  rules  that  apply  to  analog 
 broadcasts  and  apply  them  to  digital  ones  as  well. 
 Conclusion 


 The  need  to  increase  political  discourse  is  false. 
 There  is  already  a  glut  of  national,  state,  and  local 
 politics  all  over  major  networks,  subsidiaries  like  CNN,  and 
 local  affiliates.  Mandating  that  broadcasters  allot  a 


 I2  65  Fed.  Reg.  4211,4213 
 I3  65  Fed.  Reg.  4211,4213 
 I4  65  Fed.  Reg.  4211,4213 


 __  - 
 .  ___  I_^_-__  I---  x--  l  ---. 
159
 certain  amount  of  time  to  political  views  would  be 
 pointless. 
 Many  others  would  like  to  see  stations  disclose  more  of 
 what  they  do  for  the  public.  However  the  FCC  already 
 decided  in  the  1980's  that  stations  did  not  need  to  disclose 
 as  much.  Honestly,  I  have  never  heard  of  or  known  anyone 
 who  went  down  to  a  station  to  check  on  their  disclosures. 
 More  regulation  would  just  be  a  waste  of  time. 
 One  area  that  should  be  regulated  and  could  be  done 
 with  minimal  intrusion  is  increasing  access  to  television 
 for  the  disabled.  Every  station  that  provides  digital 
 television  should  be  required  to  provide  enhanced  closed 
 captioning  or  video  description  by  2006.  The  cost  is 
 minimal  and  with  a  broader  spectrum  every  digital  station 
 should  be  able  to  meet  minimal  standards. 
 The  broadcasters  received  a  deal  of  a  lifetime  with 
 free  digital  airwaves.  They  accepted  it  and  should  accept 
 any  regulation  that  FCC  deems  appropriate.  However,  because 
 broadcasters  are  more  inclined  to  act  for  monetary  reasons 
 than  arbitrary  rules  the  FCC  should  limit  its  mandates  on 
 digital  broadcasters. 


 Sincerely, 
 Robert  Lee  McElroy  IV 


 ._  _.__.  l_..._  l_.  lll.  l_,  ._^,,  .I  -...  -..-  l--__  1____^  1_ 
160
 To:  Magalie  Roman  Salas,  Secretary-  FCC 
 From:  Shandry  Castelow 
 CC:  Professor  Glenn  Reynolds 
 Date:  03/  l  7/  00 
 Re:  Public  Interest  Obligations  of  Television  Broadcast  Licensees 


 Dear  Secretary  Salas, 
 In  response  to  the  FCCs  request  for  public  comments,  65  FR  42  11,  (January  26, 
 2000),  I  want  to  communicate  my  views  as  a  television  consumer  who  is  concerned  about 
 the  business  aspect  of  digital  television.  I  am  writing  in  opposition  to  new  minimum 
 public  interest  guidelines  that  would  be  imposed  on  television  stations. 


 Responding  to  the  Communitv: 
 Minimum  Public  Interest  Obligations: 
 Introduction  and  Background 
 As  broadcasters  transition  to  digital  transmission  technology,  they  encounter  many 
 financial  burdens  and  are  faced  with  creating  new  ways  to  do  business.  In  addition,  the 
 Advisory  Committee  Report  recommends  that  [  tlhe  FCC  should  adopt  a  set  of 
 mandatory  minimum  public  interest  requirements  for  digital  broadcasters  .  .  .  .  Some 
 members  of  the  Committee  reason  that  broadcasters  have  been  given  a  free  gift  of 
 expanded  channels  and  that  many  broadcasters  would  not  voluntarily  add  public  interest 


 __  _-._  .--..~--_-- 
161
 shows.  However,  the  marketplace  offers  sufficient  incentives  for  stations  to  include 
 diverse  public  interest  programming  (e.  g.  the  Internet).    Also,  stations  will  be  spending 
 millions  of  dollars  to  build  new  towers,  to  pay  for  electricity,  and  to  secure  the  highest 
 technology  in  order  to  compete  in  the  market.  Many  stations  admit  that  they  have  no  idea 
 if  their  investment  will  pay  off,  and  they  will  have  to  look  to  sources  other  than 


 advertising  for  revenue  because  the  current  trend  is  toward  commercial  free 
 programming.  In  sum,  far  from  digital  television  being  a  free  gift,  most  broadcasters  are 
 unsure  of  what  options  exist  or  how  to  become  profitable  after  spending  millions  for  the 
 upgrade.  Instead  of  imposing  one  more  mandate  on  the  stations,  the  FCC  should 
 encourage  seamless  transition  into  digital  television. 
 An  illustration  may  help  to  illustrate  my  concern.  Many  mom  and  pop  stations  are 
 selling  the  station  rather  than  make  the  expensive  transition.  In  Montgomery,  Alabama, 
 David  Woods,  owner  of  WCOV-  TV,  only  has  a  market  of  219,000  viewers,  He  says  that 
 he  will  have  to  spend  4.5  million  dollars  over  the  next  three  years  to  meet  the  transition 
 deadline.  He  states  that  spending  that  amount  of  money  on  equipment  is  100  percent  of 
 annual  average  revenue  .  .72 


   In  an  attorneys  summary  of  the  Commissions  report,  December  18,  1998,  a  core 
 concept  of  the  report  was  that  information,  voluntary  self-  regulation  and  economic 
 incentives  are  preferable  to  regulation. 
 2  http://  www.  digitaltelevision,  com/  business998p.  shtml 


 ._.  .    _...  _  _...._____^___  --  ---- 
162
 FCC  Should  Focus  on  Economic  and  Technical  Realities  of  Transition,  Not  New  Public 
 Interest  Requirements 
 While  no  exact  dollar  figure  can  be  set,  experts  believe  that  it  will  cost  between 
 $5  million  and  $12  million  per  station  to  make  the  [digital]  change.  And  since 
 Congress  has  mandated  that  this  be  done  by  2006,  stations  with  limited  budgets 
 have  been  struggling  to  find  a  way  to  comply.  3 


 The  first  concern  is  that  while  the  larger  companies  have  the  budget  to  build  towers  and 
 the  staff  to  oversee  digital  programming,  smaller  companies  do  not  have  these  resources. 
 While  presidents  of  ABC  are  contemplating  live-  action  sports4  smaller  companies  are 
 struggling  to  negotiate  loans  with  banks  and  to  pay  an  increased  energy  bill  every  month. 
 For  example,  smaller  stations  fear  that  given  increased  competition  from  satellite 
 television  and  that  digital  television  has  yet  to  prove  viable,  banks  will  hesitate  to 
 finance  the  venture.  Also,  with  no  cash  reserve,  a  smaller  company  will  have  to  find 
 collateral  for  loans.  David  Woods,  owner  of  a  small  station  calculated  that  if  he  borrows 
 $3  million  for  a  transmitter,  his  expenses  will  increase  $200,000  a  year.  So,  he  will  have 
 to  have  other  collateral  for  the  loan  because  he  cannot  tell  the  bank  that  he  will  have 
 increased  revenue.  It  will  actually  decrease  revenue. 
 Another  example  is  that  once  the  digital  signal  is  up,  a  station  has  additional  energy 
 bills  to  keep  it  there.  At  WBNS  in  Columbus,  Ohio,  the  digital  transmitter  sucks  up 


 3  http://  www.  digitaltelevision.  com/  business1298bp,  shtml 
 4  http://  www.  digitaltelevision.  combusiness  1199p.  shtml 
 5  Owner  of  a  small  station  states  that  in  five  years,  what  are  you  going  to  have  that 
 people  cant  get  anywhere  else  ?  http://  www.  digitaltelevision.  com/  business998p.  shtml 
 6  Id. 


 i  -  ..---_  _..,_..  -.-_^-  c----  i  ..----..- 
163
 about  $22,000  a  month  in  energy  costs  (as  opposed  to  $5,000  a  month  for  the  analog 
 transmitter).      That  discrepancy  is  the  worst  combination,  having  V  for  your  analog  and 


 the  U  for  your  digital.  A  Even  though  the  station  increased  their  viewers  (although  only 
 334  viewers  watched  a  HDTV  football  game  because  not  many  people  have  receivers 
 yet),  the  station  has  petitioned  the  FCC  to  broadcast  the  signal  only  intermittently,  since 
 the  station  wasnt  required  to  have  its  signal  up  until  November  2003.  9  The  owner 
 stated  that  [  w]  e  turn  it  off  once  in  a  while.  We  realized  what  the  operating  cost  was,  so 
 there  was  no  reason  to  run  our  transmitter  at  $22,000  a  month. 
 The  second  concern  is  that  even  big  stations  are  uncertain  about  the  future  of  digital 
 television.  Stations  are  trying  a  lot  of  new  things  to  stay  competitive  in  their  market. 
 While  advertising  is  usually  a  huge  source  of  revenue  for  stations,  the  prediction  is  that 
 digital  broadcasting  will  deliver  the  final  blow  to  commercials.*  Stations  are  trying 
 everything  from  real-  time  web  casting  with  news  broadcasts  to  technical  advice  for 
 HDTV  makers  in  exchange  for  equipment  use.  12  Stations  are  using  a  lot  of  their 
 resources  to  develop  new  business  models  while  being  completely  uncertain  of  the 
 benefits. 


   Id. 
 *  Id.  This  technical  problem  seems  to  be  common. 
   Id. 
 lo  Id. 
 I1  http://  www.  digitaltelevision.  com/  business199p.  shtml 
 l2  Id. 
164
 For  example,  in  a  recent  interview  with  Preston  Davis,  president  of  the  Broadcast 
 Operations  &  Engineering  division  ABC: 


 DTV:  Do  you  see  a  clear  business  model  for  DTV? 
 Davis:  Your  question  assumes  that  anybody  thought  that  there  was  going 
 to  be  a  way  to  make  money  off  of  digital  television  [laughing].  I  dont. 
 We  certainly  didnt  go  into  this  believing  that  that  was  necessarily  the 
 case,  and  I  think  history  will  prove  that  it  probably  wasnt.  13 


 The  Marketplace  Provides  Sufficient  Incentives  to  Respond  To  Communitv  Needs 
 The  Internet  is  a  great  model  for  and  testament  to  the  unregulated  growth  of  an 
 industry.  With  viewers  having  choices  of  satellite,  cable,  and  additional  networks,  the 
 market  will  encourage  programmers  to  cater  to  their  local  community.  Today,  the  trend 
 is  toward  specialization  and  niches  that  target  a  specific  audience.  My  Internet  Service 
 Provider  regularly  hosts  exotic  pet  chat  nights,  The  communications  business  is  so  large 
 that  now  minorities  and  once  overlooked  groups  are  being  recognized  as  viable 
 consumers. 
 Also,  as  companies  struggle  to  compete  with  so  many  other  companies  for  viewers, 
 they  have  come  up  with  completely  innovative  solutions  such  as  delivering  specific 
 shows  at  a  specific  times,  Broadcasters  have  sought  out  the  best  available  equipment  so 
 that  they  can  deliver  the  most  data  at  the  fastest  rate  and  in  several  mediums.  In  fact,  in 
 the  race  to  deliver  more  information  at  a  faster  rate,  stations  look  to  the  Internet  for 
 answers.  I4  And  with  lots  of  people  communicating  via  e-  mail,  viewers  have  access  to 
 reach  their  stations  and  voice  their  concerns  and  ideas. 


 I3  Id. 
 I4  http://  www.  digitaltelevision.  com/  business199p.  shtml 
165
 Conclusion 
 New  minimum  public  interest  requirements  are  not  necessary  to  drive  broadcasters  to 
 produce  community  service  shows.  Plenty  of  marketplace  incentives  exist  such  as  the 
 Internet,  competing  markets,  and  public  access.  Also,  broadcasters  face  enough 
 mandates  and  technical  and  financial  burdens  in  their  transition  to  digital  transmission. 
 Extra  requirements  will  burden  already  strained  finances  and  resources,  particularly  small 
 stations.  And  specific  requirements  might  actually  keep  new  programming  out  of 
 broadcasting.  For  example,  lots  of  small  Internet  companies  catered  to  a  specific  interest 
 because  they  were  economically  and  technically  supported.  If  the  small  companies  had 
 been  regulated  or  if  the  Internet  could  only  host  certain  sites,  then  maybe  a  new  area 
 would  not  have  been  developed.  Today,  lots  of  web  sites  exist  that  respond  to  the 
 smallest  of  matters.  I  think  any  interest  can  be  found  on  the  Web.  I  think  that  digital 
 television  should  be  given  the  same  opportunity  to  grow. 
 Thank  you  for  your  consideration. 
 Cordially, 


 Shandry  Castelow 


 .  ,.  -.  I_..  .  -  ..-..  --..  l-..  l  __.  1.  -  ---.-.-  1 
166
 To:  The  Federal  Communications  Commission 
 From:  Nathan  D.  Sukhia 


 cc:  Professor  Glenn  H.  Reynolds 
 Date:  03/  1  l/  O0 
 Re:  Additional  public  interest  requirements  for  digital  television  broadcasters 


 Dear  Commission, 
 In  response  to  your  Notice  of  Inquiry,  MM  Docket  No.  99-  360,  (December  15, 
 1999),  I  want  to  communicate  my  views  as  a  regular  consumer  of  television  broadcasting. 
 I  am  writing  in  opposition  to  increased  public  interest  requirements  for  digital  television 
 broadcasters.  I  trust  that  you  have  not  ceased  consideration  of  comments  offered. 
 Introduction  and  Backpround 
 The  Presidents  Advisory  Committee  on  the  Public  Interest  Obligations  of  Digital 
 Television  Broadcasters  (  Advisory  Committee)  and  People  for  Better  TV  have 
 submitted  recommendations  on  the  public  interest  obligations  digital  television 
 broadcasters  should  assume.  These  recommendations  are  premised  on  the  notion  that 
 broadcasters  have  been  given  a  gift  of  free  additional  spectrum  with  which  to  offer  new 
 and  potentially  profitable  services.  Because  this  spectrum  could  have  been  auctioned  to 
 support  various  public  needs,  the  gift  of  additional  spectrum  brings  with  it  increased 


 public  interest  obligations. 
 What  Broadcasters  have  Received 


 Digital  television  has  provided  broadcasters  the  means  to  multicast  (multiplex)  or 
 datacast.  When  a  digital  broadcaster  multicasts,  that  broadcaster  provides  more  than  one 
167
 program  on  a  bandwith  normally  used  for  only  one  program,  When  a  digital  broadcaster 
 datacasts,  that  broadcaster  uses  bandwith  not  consumed  by  normal  broadcasting  to  send 


 out  data.  Both  multicasting  and  datacasting  are  considered  ancillary  benefits  because 
 they  are  offered  in  addition  to  the  main  or  foundation  program.  Of  course,  the  most 
 obvious  import  of  digital  television  is  a  digital  picture  that  is  of  better  quality  than  that  of 
 a  standard  analog  picture. 
 Public  Interest  Reauirements  for  Multicasting 
 Cutting  through  the  technical  terminology,  the  ability  to  multicast  means  one 
 thing:  digital  broadcasters  have  the  option  to  operate  two  or  more  programs  with  only  one 
 license.  Except  for  the  existence  of  an  additional  channel,  the  choice  to  exercise  that 
 option  will  go  unnoticed.  When  one  changes  the  channel  on  ones  television,  one  may  be 
 unaware  of  the  fact  that  the  program  one  is  currently  watching  and  the  program  one  was 
 previously  watching  are  actually  coming  from  the  same  television  station.  To  put  it  more 
 simply,  the  public  will  be  unable  to  distinguish  between  a  multicast  and  non-  multicast 
 programming. 
 The  public  interest  requirements  currently  placed  on  all  digital  and  analog 
 broadcasters  came  into  effect  because  broadcasters  were  provided  a  gift  that  incidentally 
 gave  them  a  unique  ability  to  benefit  the  public.  If,  as  the  Advisory  Committee  and 
 People  for  Better  TV  claim,  that  original  gift  has  been  increased  or  digital  broadcasters 
 have  been  provided  a  better  gift  that  requires  increased  public  interest  obligations,  then  it 
 seems  that  digital  broadcasters  must  have  also  incidentally  received  a  greater  ability  to 
 benefit  the  public.  However,  the  greater  ability  to  benefit  the  public  is  no  where  to  be 
 found.  The  ability  to  multicast  is  nothing  more  than  the  ability  to  broadcast  another 


 2 
168
 television  program  that  has  the  same  ability  to  benefit  the  public  as  any  other  digital  or 
 analog  program. 
 The  fact  that  the  ability  to  multicast  bears  no  increased  ability  to  benefit  the 
 public  is  reinforced  by  a  cursory  examination  of  the  public  interest  standards  proposed  by 
 the  Advisory  Committee  and  People  for  Better  TV.  With  the  exception  of  those 
 standards  that  target  datacasting,  the  proposed  standards  can  be  as  easily  implemented 
 through  analog  broadcasting  as  digital  broadcasting.  Furthermore,  and  most  importantly, 
 the  proposed  standards  would  have  the  same  impact  on  the  public  regardless  of  whether 
 those  standards  were  implemented  through  analog  broadcasting  or  digital  broadcasting. 
 As  to  multicasting,  clearly  the  Advisory  Committee  and  People  for  Better  TV  are 
 not  motivated  by  the  fact  that  digital  broadcasters  suddenly  have  at  their  disposal  new 
 technology  that  can  be  used  to  better  serve  the  public  interest.  Instead,  they  have,  as 
 Commissioner  Harold  Furchtgottroth  so  plainly  put  it,  seized  on  this  opportunity  to 
 wring  as  many  concessions  as  possible  out  of  broadcasters.  The  [Advisory  Committee 
 and  People  for  Better  TV]  do  not  appear  to  require  any  particular  linkage  between  the 
 proposals  and  the  transition  to  DTV.  Because  the  Advisory  Committee  and  People  for 
 Better  TV  are  unable  to  demonstrate  any  link  between  their  proposals  and  an  increased 
 ability  to  serve  the  public,  their  proposals  should  be  rejected.  Furthermore,  because  it  is 
 impossible  to  demonstrate  that  the  ability  to  digital  multicast  bears  an  increased  ability  to 
 benefit  the  public,  the  Commission  should  refrain  from  altering  the  standards  that  are 
 currently  in  place. 
 As  the  D.  C.  Circuit  stated  in  1969,  in  applying  the  public  interest  standard  to 
 programming,  the  Commission  walks  a  tightrope  between  saying  too  much  and  saying 


 3 
 -  ..-  .-.-.  __-..._.  -I  .  _  -  ..--.  .-.  ..--~  11_ 
169
 too  little.    The  Commission  must  walk  that  tight  rope  because  it  must  minimize  the 
 dangers  of  censorship  or  pervasive  supervision.  2  The  United  States  Supreme  Court  has 
 made  that  tight  rope  even  slimmer  by  pointing  out  that  the  notion  that  broadcasters  can  be 
 regulated  because  they  are  the  only  source  of  information  has  come  and  gone.  3  In  most 
 areas  [the  FCC]  has  resolved  the  dilemma  by  imposing  only  general  affirmative  duties 
 -  e.  g.,  to  strike  a  balance  between  the  various  interests  of  the  community.  4 
 By  statute,  the  Commission  is  required  to  apply  to  any  other  ancillary  and 
 supplementary  service  such  of  the  Commissions  regulations  as  are  applicable  to  the 
 offering  of  analogous  services  by  any  other  persons.  5  As  to  multicasting,  the  analogous 
 service  is  clearly  standard  analog  broadcasting.  The  courts  have  affirmed  that  public 
 interest  requirements  for  analog  broadcasting  meet  Constitutional  as  well  as  statutory 
 requirements.  The  Commission  should  be  very  reluctant  to  dispose  of  public  interest 
 requirements  that  have  passed  Constitutional  and  statutory  muster  and  have  fixrctioned 
 well,  when  there  is  no  reason  to  do  so. 
 Public  Interest  Reauirements  for  Datacasting 
 Datacasting,  as  distinguished  from  multicasting,  is  completely  different  from  any 
 other  broadcasting  formerly  regulated  by  the  FCC.  Datacasting  has  enormous  potential 
 to  offer  the  public  such  things  as  CD  quality  music,  personalized  stock  quotes,  and  so  on. 
 Indeed,  it  is  unclear  what  broadcasters  may  choose  to  do  with  their  bandwith  that  is  not 
 consumed  by  multicasting  because  at  this  point,  the  possibilities  are  endless. 


   Banzhufv.  FCC,  405  F.  2d  1082,  1095  (D.  C.  Cir.  1968). 
 z  Id. 
 See  Red  Lion  Broadcasting  Co.  v.  FCC,  395  U.  S.  367  (1969). 
 4  Banzhafat  1095.  (emphasis  added). 
   47  U.  S.  C.  $  336(  b)(  3)  (emphasis  added). 


 4 
170
 In  order  to  retain  their  license,  broadcasters  are  required  to  apply  to  build  DTV 
 facilities,  be  granted  a  construction  permit,  and  then  complete  construction,  all  of  which 
 costs  millions  of  dollars.  Although  stations  are  required  to  broadcast  one  free  television 
 program  service  of  a  quality  at  least  equal  to  that  of  a  standard  analog  signal,  broadcasters 
 are  permitted  to  receive  payment  for  advertising  on  the  free  program  that  will  allow  them 
 to  recover  the  cost  of  operating  the  required  free  program.  Broadcasters  are  then 
 permitted  to  either  multicast  or  datacast  on  excess  bandwith  for  a  fee,  less  the  5%  charge 
 established  by  the  Commission.  Fee  broadcasting  will  allow  broadcasters  to  recover  the 
 cost  of  building  a  digital  television  station.  Thus,  the  ability  of  a  broadcaster  to  recover 
 the  cost  is  largely  dependent  on  the  development  of  financially  viable  datacasting  and 
 multicasting. 
 In  order  to  multicast,  digital  broadcasters  must  develop  programs  in  addition  to 
 the  foundation  program.  Thus,  broadcasters  that  were  operating  only  one  analog  program 
 must  find  the  financial  means  to  operate  two,  three,  or  even  four  digital  programs  in  order 
 to  derive  income  from  multicasting.  Because  digital  broadcasters  will  be  reeling  from  the 
 cost  of  building  a  new  digital  broadcasting  facility,  many  may  be  unable  to  finance  the 
 startup  and  maintenance  costs  of  additional  programs.  On  the  other  hand,  datacasting 
 will  undoubtedly  have  much  smaller  startup  and  maintenance  costs.  Thus,  in  the  early 
 stages  of  the  conversion  to  digital  television,  broadcasters  will  inevitably  turn  to  paid 
 datacasting  to  recover  the  cost  of  a  new  digital  station. 
 As  previously  stated  the  Commission  is  by  statute  required  to  apply  to  any  other 
 ancillary  and  supplementary  service  such  of  the  Commissions  regulations  as  are 


 5 
171
 applicable  to  the  offering  of  analogous  services  by  any  other  person.  6  Thus,  the  public 
 interest  requirement  for  datacasting  is  dependent  on  the  type  of  data  being  cast.  Because 
 the  Commission  has  not  previously  regulated  such  data,  it  will  have  to  develop 
 specialized  public  interest  requirements  for  each  new  type  of  data  that  broadcasters 
 choose  to  cast.  However,  at  this  time  it  is  uncertain  just  what  type  of  data  stations  will 


 choose  to  broadcast.  Because,  at  least  initially,  digital  broadcasters  will  be  largely 
 relying  on  datacasting  income,  the  form  of  datacasting  will  be  particularly  market  driven. 
 The  Advisory  Committee  and  People  for  Better  TV  would  have  the  Committee 
 apply  sweeping  public  interest  requirements  for  datacasting.  The  public  interest 
 requirements  proposed  by  both  organizations  would  be  particularly  taxing  for  newly 
 created  digital  broadcasting  stations  because  they  will  inevitably  decrease  income  that  is 
 and  will  be  so  desperately  needed,  especially  before  digital  television  is  embraced  by  the 
 public.  In  particular,  stringent  public  interest  requirements  at  the  outset  may  frustrate 
 broadcasters  financial  ability  to  experiment  with  new  and  innovative  uses  for  datacasting. 
 Finally,  the  proposals,  although  sweeping,  provide  little  if  any  actual  guidance  as  to  how 
 public  interest  requirements  will  be  implemented  because  neither  organization  knows  just 
 what  forms  of  datacasting  broadcasters  may  choose  to  implement.  For  these  reasons,  the 
 Commission  should  reject  the  proposals  of  the  Advisory  Committee  and  People  for  Better 
 TV. 
 The  Commission  should  decline  to  apply  public  interest  standards  to  datacasting 
 until  recognizable  forms  of  datacasting  come  into  existence  and  become  financially 
 viable.  By  so  doing,  the  Commission  will  allow  market  principles,  rather  than  FCC  rules, 
 to  drive  the  development  of  datacasting.  This  works  to  the  advantage  of  the  public 


   47  U.  S.  C.  8  336(  b)(  3). 
 6 


 -    I  I  ..--.  -.-  ^.r  ..  --...  I    -_._-  __-_~-_-  ..I  _ 
172
 because  public  interests  can  only  be  served  through  sustained  datacasting,  and  datacasting 
 can  only  be  sustained  if  it  is  allowed  to  become  and  remains  economically  viable.  Once 
 forms  of  datacasting  are  developed  and  it  is  apparent  they  will  be  sustained,  the 


 Commission  will  be  better  situated  to  understand  just  what  public  interests  datacasting 
 can  benefit.  In  addition,  at  that  time  the  Commission  will  be  better  equipped  to 


 determine  what  if  any  presently  regulated  services  is  analogous  to  the  datacasting  in 
 question  so  as  to  meet  statutory  requirements. 
 As  the  Supreme  Court  stated,  the  public  interest  standard  is  a  supple  instrument 
 designed  to  be  flexible  enough  to  accommodate  the  dynamic  aspects  of  radio 
 transmission  .  .  ..    Accordingly,  the  Commission  should  not,  out  of  fear  that  it  might  fall 
 behind  the  public  interest  rulemaking  curve,  rush  to  set  standards  for  forms  of 
 communication  that  have  not  yet  solidified.  Additional  rulemaking  will  always  available. 
 Conclusion 
 The  Commission  should  not  adopt  additional  public  interest  requirements  for  digital 
 broadcasters  at  this  time.  Multicast  programs  are  not  significantly  different  from 
 traditional  analog  programs  and  because  they  cannot  provide  the  public  greater  benefits, 
 they  should  not  have  to  meet  a  greater  public  interest  standard.  In  addition  it  is  uncertain 
 just  what  forms  of  datacasting  broadcasters  will  choose  to  utilize  and  will  become 
 financially  viable  to  utilize.  Finally,  additional  public  interest  standards  will  place  an 
 unnecessary  financial  burden  on  digital  broadcasters  at  a  time  when  digital  broadcasters 
 are  particularly  financially  vulnerable. 


   FCC  v.  Postville  Broadcasting  Co.,  309  U.  S.  134,  138  (1940). 
 7 
173
 To:  Magalie  Roman  Salas,  Secretary-  FCC 
 From  :  Robert  L.  Vance 
 cc:  Professor  Glenn  H.  Reynolds 
 Date:  03/  17/  00 
 Re:  Comments  on  Proposed  Public  Interest  Obligations  of  Television  Broadcast  Licensees"  Regulations 


 Dear  Secretary  Salas, 
 I  am  writing  in  response  to  the  FCC's  request  for  comments, 
 65  FR  4211,  (January  26,  2000),  on  broadcasters'  public  interest 
 obligations  during  and  after  their  transition  from  analog  to 
 digital  television  (  DTV").  As  an  avid  television  watcher,  a 
 parent,  and  law  student,  this  issue  both  interests  and  concerns 
 me.  While  I  recognize  the  importance  and  benefits  of  community 
 service  by  broadcasters,  I  do  not  believe  that  excess  government 
 regulation  is  the  proper  method  for  obtaining  this  service.  I 
 feel  that  the  open  market,  along  with  minimal  government 
 regulation,  can  make  DTV  a  valuable  asset  for  serving  the  public 
 interest.  Specifically,  I  propose  that,  at  the  very  least,  no 
 new  public  interest  obligations  be  imposed  on  broadcasters  and 


 that  broadcasters  have  the  choice  of  which  program  streams  they 
 will  use  to  fulfill  their  existing  obligations  to  broadcast 
 children's  programming  and  programming  that  serves  local  needs. 


 In  proposing  this  choice,  I  am  not  referring  to  broadcasters' 
 obligations  to  utilize  closed  captioning  or  to  provide  equal 
 access  to  political  candidates. 


 _._  __..  .-  .-  _  .-.-.l  ... 
 _--  ._._-_  ...-  X--  t-_  llllll  -.-- 
174
 Introduction 
 Imposing  public  interest  obligations  on  broadcasters  should 
 serve  the  goal  of  providing  access  to  programming  that  educates 
 and  informs  about  public  affairs  to  those  people  who  want  access 
 to  this  type  of  programming.  This  goal  should  not  be  confused 
 with  the  goal  of  forcing  viewers  to  be  interested  in  "public 
 interest"  programming.  The  FCC  needs  to  keep  this  distinction  in 
 mind  when  considering  the  public  interest  obligations  it  will 
 impose  on  broadcasters  as  they  make  the  transition  to  DTV.  While 
 the  FCC  has  a  legitimate  interest  in  promoting  access  to 
 different  types  of  programming,  it  should  not  be  in  the  business 
 of  attempting  to  force  viewers  to  watch  programming  the 
 government  has  determined  is  beneficial  to  the  public. 
 Digital  Television  will  allow  broadcasters  to  give  viewers 
 more  choices  in  deciding  which  programs  to  watch  by  offering 
 television  stations  more  program  streams  over  which  they  can  air 
 their  broadcasts.  Broadcasters  should  be  given  the  discretion  to 
 fulfill  their  obligation  to  air  public  interest  programming  on 
 whichever  of  these  streams  they  choose,  as  long  as  viewers  have 
 access  to  those  streams.  (As  stated  above,  this  does  not  include 
 broadcasters'  obligations  to  utilize  closed  captioning  or  to 
 provide  equal  access  to  political  candidates).  If  the  viewer  can 
 gain  access  to  the  public  interest  programming,  the  FCC  has 
 achieved  its  goal.  Requiring  broadcasters  to  fulfill  their  duty 
 to  air  public  interest  programs  on  each  program  stream  can  only 
175
 serve  the  goal  of  forcing  viewers  who  are  not  interested  in 
 watching  public  interest"  programming  to  choose  between  watching 
 government  imposed  programming  and  not  watching  broadcast 
 television  at  all.  Rather  than  promoting  DTV  as  a  tool  for 
 serving  the  public  interest,  these  regulations  could  have  the 
 unintended  consequence  of  chasing  viewers  away  from  broadcast 
 television  altogether. 
 Another  point  that  the  FCC  should  pay  attention  to  when 
 considering  these  regulations  is  the  operation  of  the  free 
 market.  In  a  free  market  system,  the  consumer  ultimately  decides 
 which  products  will  be  available.  The  government  does  not  have 
 to  tell  the  manufacturer  what  products  to  make.  The  manufacturer 
 makes  the  products  that  consumers  are  buying. 
 The  free  market  is  equally  suited  to  determine  which 
 programs  are  shown  on  television.  Broadcasters  want  people  to 
 watch  their  programs.  They  have  long  realized  that  the  way  to 
 achieve  this  goal  is  to  broadcast  programs  that  people  want  to 
 watch.  If  the  public  is  interested  in  a  program,  broadcasters 
 will  naturally  broadcast  that  program.  Digital  television  will 
 not  change  this  obvious  dynamic.  If  DTV  can  enable  broadcasters 
 to  serve  the  public  in  new  and  better  ways,  and  the  public  wants 
 this  service,  broadcasters  will  respond  without  government 
 intervention.  Therefore,  I  believe  that,  at  the  very  least,  no 
 new  public  interest  obligations  should  be  imposed  on  broadcasters 
 as  they  change  over  to  DTV. 
176
 Children's  Programmina 
 When  broadcasters  air  programming  that  benefits  children, 
 the  public  interest  is  definitely  served.  Children  in  the  United 
 States  gain  large  amounts  of  information  by  watching  television. 
 I  believe  that  the  public  has  an  interest  in  making  sure  that 
 suitable  information  is  available  to  children  on  broadcast 
 television.  However,  I  also  believe  that  excessive  government 
 regulation  is  not  the  proper  means  for  ensuring  this 
 availability. 
 Broadcasters  doing  business  in  the  free  market  realize  that 
 a  large  portion  of  their  audience  is  children.  Broadcasters  want 
 people  to  watch  their  programs  and  they  realize  that  children 
 like  to  watch  children's  programs.  These  considerations 
 obviously  contribute  to  the  decisions  broadcasters  make  when  they 
 choose  to  air  children's  programming  right  after  school  hours  and 
 on  Saturday  mornings.  The  desire  to  appeal  to  a  target  audience 
 and  the  attempt  to  get  that  audience  to  watch  their  programs  are 
 probably  the  biggest  motivating  factors  causing  broadcasters  to 
 air  children's  programming  during  these  hours. 
 Of  course,  the  public  interest  obligations  imposed  on 
 broadcasters  by  the  government  to  air  children's  programming  may 
 also  play  a  part  in  their  decision  to  broadcast  these  shows. 
 However,  I  believe  that  the  motivation  these  obligations  provide 
 is  secondary  to  the  motivation  created  by  the  free  market. 
 Broadcasters  air  children's  programming  because  children  provide 


 _  _  _.  __-_  .^  l_,  ll  ._________  -.-.  lll_..__  l_.-. 
177
 a  valuable  market.  Currently,  broadcasters  are  required  to  air 
 only  three  hours  of  programming  that  is  beneficial  to  children 


 per  week,  yet  many  broadcast  stations  exceed  this  amount  in  a 
 single  day.  The  reason  broadcasters  exceed  their  obligations  is 
 that  children  watch  television  and  broadcasters  want  to  take 
 advantage  of  an  available  audience.  The  popularity  of  cable 
 stations  aimed  solely  at  children,  such  as  Nickelodeon  and 
 Cartoon  Network,  provide  additional  evidence  that  children  are  an 
 audience  worth  pursuing.  Children  also  happen  to  like  shows  that 
 can  be  considered  educational.  This  means  that  broadcasters  have 
 a  reason  to  air  these  programs  even  without  government 
 intervention. 
 Since  children's  shows  are  extremely  popular  and 
 broadcasters  like  to  air  popular  shows,  broadcasters  would  most 
 likely  air  these  shows  even  if  the  government  did  not  require 
 them  to.  The  goal  of  the  FCC  in  imposing  obligations  to  air 
 children's  programming  should  be  to  make  sure  that  children  have 
 access  to  such  programming.  Since  children  have  this  access 
 under  the  current  regulations,  I  do  not  believe  that  new 
 obligations  to  air  children's  programming  should  be  imposed  on 
 broadcasters  as  they  switch  to  DTV. 
 In  addition,  I  believe  that  broadcasters  should  be  allowed 


 to  choose  which  program  streams  they  will  use  to  fulfill  their 
 obligation  to  broadcast  children's  programming  once  stations 
 change  over  to  DTV.  I  do  not  think  that  broadcasters  should  be 


 .-.  -  ..  -  .--  .._..  ,  .I__^ 
 ._^_  l.  l__  -11-  ,..-  I  -  ~,  ---. 
178
 required  to  broadcast  children's  programming  on  every  stream,  as 
 long  as  all  of  the  viewers  in  the  broadcast  area  have  access  to 
 the  stream  on  which  the  broadcaster  is  fulfilling  its  obligation 
 to  air  children's  programming.  The  fact  that  the  broadcaster  is 
 making  children's  shows  available  to  children  should  satisfy  the 


 public  interest  in  this  area. 
 Children  are  very  sophisticated  viewers  in 
 Sunday  mornings,  my  three-  year-  old  can,  without 
 many  ways.  On 
 my  help,  find  the 
 station  that  is  airing  a  children's  show  when  :a11  of  the  other 
 stations  are  airing  talk  shows.  I  do  not  think  that  the  switch 
 to  DTV  and  the  availability  of  additional  programming  streams 
 will  hamper  his  effort  to  find  these  shows.  In  fact,  allowing  a 
 broadcaster  to  use  only  one  of  its  programming  stream  to  fulfill 
 its  public  interest  obligation  to  air  children's  programming 
 would  make  matters  less  confusing  for  children,  since  their  shows 
 would  all  air  on  one  channel.  However,  I  do  not  think  that 
 broadcasters  should  be  required  to  air  children's  programming  on 
 only  one  stream  any  more  than  I  believe  broadcasters  should  be 
 required  to  air  children's  programming  on  all  streams.  The 
 demand  for  children's  programming  after  the  transition  to  DTV  may 
 be  such  that  broadcasters  feel  compelled  to  offer  more  children's 
 programming  than  they  offered  with  analog  technology.  The  free 
 market,  through  the  viewer,  should  dictate  how  many  program 
 streams  are  dedicated  to  children's  programming.  In  other  words, 
 children  should  ultimately  decide  how  and  where  children's  shows 


 -...  _.  __    _  -...  __-.  ^..  .l-.-  l.-  _  -.-..-  1__  1-_----  .^ 
179
 are  broadcast,  not  the  government. 
 I  believe  that  under  the  current  regulations,  broadcasters 
 have  shown  a  commitment  to  broadcast  children's  programming. 
 Under  these  regulations,  children  can  watch  hours  of  children's 
 programming  every  day  on  broadcast  television.  I  believe  that 


 DTV  will  improve  children's  access  to  shows  without  requiring 
 broadcasters  to  air  these  shows  on  each  of  their  program  streams. 
 In  addition,  I  believe  that  this  requirement  would  be  unfair  to  a 
 large  portion  of  the  public  that  broadcast  television  is  supposed 
 to  serve.  Many  viewers  do  not  have  children  and  are  not 
 interested  in  children's  programming.  Requiring  a  broadcaster  to 
 air  children's  programming  on  each  of  its  streams  will  take 
 valuable  air  time  away  from  this  large  segment  of  viewers. 
 People  will  actually  be  denied  one  of  the  greatest  benefits  that 
 DTV  should  provide.  This  benefit  is  variety.  The  government 
 should  be  satisfied  when  its  goal  of  providing  children  access  to 
 appropriate  programming  is  achieved.  This  goal  of  access  will  be 
 achieved  in  a  fair  manner  by  allowing  broadcasters  to  choose 
 which  program  streams  they  will  use  to  fulfill  their  obligation 
 of  broadcasting  children's  programming. 
 Serving  Local  Needs 


 Another  public  interest  obligation  of  broadcasters  with 
 which  I  am  concerned  is  broadcasters'  obligation  to  service  the 
 local  needs  of  their  communities.  As  in  the  area  of  children's 
 broadcasting,  I  believe  that  no  new  obligations  should  be  imposed 
180
 on  broadcasters  as  they  switch  to  DTV.  If  viewers  are  interested 
 in  this  type  of  programming,  broadcasters  will  air  it. 
 The  term  "public  interest  obligations"  suggests  that  the 
 public  is  interested  in  this  type  of  information.  Since  the  goal 
 of  broadcasters  is  to  get  people  to  watch  their  programs, 
 broadcasters  obviously  want  to  air  programs  that  are  interesting 
 to  viewers.  Broadcasters  compete  with  other  broadcasters  in 
 their  area.  If  viewers  are  interested  in  public  affairs  and 
 information  about  their  community,  they  are  going  to  watch  the 
 station  that  offers  the  most  programs  containing  this 
 information.  The  government  does  not  need  to  impose  new 
 obligations  on  broadcasters  to  air  more  programming  that  serves 
 local  needs.  If  the  community  wants  more  of  this  type  of 
 programming,  broadcasters  will  air  it  if  they  have  the  technology 
 to  do  so. 
 The  goal  of  the  FCC  in  this  area  should  be  to  ensure  that 
 broadcasters  provide  access  to  information  about  local  concerns 
 to  the  community.  Since  broadcasters  using  DTV  will  have  the 
 capacity  to  broadcast  over  more  than  one  program  stream,  they  can 
 provide  access  to  a  wider  variety  of  shows.  Broadcasters  should 
 be  allowed  to  fulfill  their  obligation  to  air  programs  that 
 service  local  needs  over  whichever  of  these  streams  they  choose. 
 Under  this  system,  viewers  who  are  interested  in  local 
 information  will  have  access  to  that  information,  and  viewers  who 
 are  not  interested  can  choose  to  watch  something  else  aired  by 
181
 the  same  broadcaster.  By  requiring  broadcasters  to  air  "public 
 interest"  information  on  all  available  streams,  the  FCC  may 
 inadvertently  chase  viewers  away  from  broadcast  television 
 altogether.  Broadcasters  must  compete  with  cable  and  satellite 
 television,  both  of  which  offer  vast  amounts  of  variety.  Digital 
 television  will  allow  broadcasters  to  be  more  competitive  with 
 these  companies  by  allowing  them  to  provide  more  variety  as  well. 
 Allowing  broadcasters  to  choose  the  program  streams  over  which 
 they  fulfill  their  public  interest  obligations  will  both  provide 
 the  desired  access  to  public  interest  programming  and  allow 
 broadcasters  to  offer  and  take  advantage  of  more  variety.  With 
 proper  regulation,  DTV  will  enable  broadcasters  to  offer  more 
 information  about  local  concerns  without  the  fear  of  chasing  away 
 those  viewers  who  are  not  interested  in  this  type  of  programming. 
 Conclusion 
 I  believe  that  children's  programming  and  programming  that 
 provides  information  about  local  concerns  are  important  services 
 offered  by  broadcasters.  I  also  believe  that  the  FCC  has  a  valid 
 interest  in  ensuring  that  broadcasters  continue  to  serve  the 
 public  as  they  make  the  transition  from  analog  to  DTV.  However, 
 I  do  not  believe  that  excessive  government  regulation  is 
 necessary  to  achieve  this  goal.  The  free  market  and  viewers' 
 interests  should  dictate  the  programs  aired  by  broadcasters. 
 Digital  television  will  offer  broadcasters  new  opportunities  to 
 better  serve  the  public.  If  the  public  wants  this  service, 
182
 broadcasters  will  make  sure  that  it  is  available.  Therefore,  I 
 propose  that  no  new  public  interest  obligations  be  imposed  on 
 broadcasters  as  they  switch  to  DTV  and  that  broadcasters  be 
 allowed  to  fulfill  their  existing  obligations  on  whichever 
 program  streams  they  choose. 


 Robert  L.  Vance 
183
 To: 
 From: 
 cc: 
 Date: 
 Re: 


 William  E.  Kennard,  Chairman-  FCC 
 Kenneth  H.  Berry,  Jr. 
 Professor  Glenn  H.  Reynolds 
 03/  l  7/  00 
 Comments  on  Proposed  Rule-  making  for  Broadcasters  Public  Interest 
 Requirements  in  the  Age  of  Digital  Transmission  Technology 


 Dear  Commissioner  Kennard, 
 In  response  to  the  FCCs  request  for  public  comments,  65  Fed.  Reg.  4211,  (January  26, 
 2000)  I  wish  to  express  my  views  as  a  citizen  that  our  system  of  financing  elections  -  local, 
 state,  and  federal,  is  dysfunctional.  It  is  dysfunctional  principally  because  of  the  corrosive  effect 
 of  money  in  politics.  Your  efforts  to  review  the  role  that  television  broadcasters  should  ideally 
 play  in  our  democracy  are  commendable.  It  is  heartening  that  the  FCC  keeps  an  open  mind 
 about  the  issues  it  raises  in  the  proposed  rule-  making,  especially  considering  the  many  attacks 
 made  upon  the  FCCs  jurisdiction  by  the  Republican  majority  in  Congress.  I  am  writing  in 
 strong  support  of  the  requirement  that  television  broadcasters  must  contribute  free  air  time  to 
 political  candidates  and  parties.  My  focus  will  be  upon  federal  candidates  but  a  strong  case 
 exists  that  the  requirement  should  extend  to  candidates  for  state  and  local  offices  as  well. 
 Introduction  and  Background 
 I  wholeheartedly  support  the  recommendations  made  by  former  FCC  General  Counsel 
 Geller  and  others  on  the  Advisory  Committee  that  licensed  broadcasters  should  be  required  by 


 the  FCC  to  provide  free  air  time  before  elections.  Unlike  the  views  of  some,  I  argue  that  the 
 FCC  has  the  regulatory  authority  to  accomplish  this  exceedingly  modest  approach  right  now 


 1 
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 K.  H.  Berry,  Jr.,  3/  17/  00 
 without  further  statutory  enactments.  Furthermore,  I  will  point  out  several  other  proposals  that 


 are  far  more  ambitious  in  reach  and  breadth. 


 Commissioner  Kermard,  I  must  admit  that  it  takes  a  considerable  amount  of  willpower 
 on  my  part  to  refrain  from  launching  into  an  in-  depth  recitation  of  the  chamber  of  horrors  that 
 campaign  financing  resembles.  I  take  solace  in  the  knowledge  that  the  FCC  is  well  aware  of  how 
 much  valuable  time,  effort,  and  money  is  wasted  raising  funds  before,  during,  and  after  each 
 election  cycle  by  candidates  at  probably  every  level  of  elective  office.  You  are  also  well  aware 
 that  the  overwhelming  proportion  of  treasure  expended  in  this  regard,  is  expended  in  the  hunt  for 
 dollars  to  produce  commercials  and  buy  television  air  time. 
 Unfortunately,  politicians  have  few  alternatives  to  television  for  effectively  spreading 
 their  message.  Americans  are  a  nation  of  television  viewers.  Some  might  say  a  nation  of 
 television  addicts.  Be  that  as  it  may,  digital  technology  will  only  exacerbate  the  problem  of  too 
 many  politicians  chasing  too  many  bucks.  New  digital  technology  promises  to  make  access  to 
 the  airways  even  easier  because  of  the  multiplication  of  available  signals,  thus  politicians  will 
 feel  driven  to  put  on  more  spots,  which  means  they  will  need  more  money.  We  face  a  real  risk  of 
 the  money  chase  getting  more  heated  not  less.  It  is  time  to  take  action  and  the  FCC  can  and 
 should  take  the  actions  outlined  below. 
 What  can  be  done  and  under  what  authority 
 What  can  the  FCC  require  that  broadcast  licensees  do  to  fulfill  their  public  interest 


 obligations?  Suggestions  run  the  gamut  from  nothing  to  coerced  devotions  of  large  segments  of 
 prime  time  to  ail  candidates  and  parties.  Besides  Mr.  Gellers  recommendations  specifically 


 2 
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 K.  H.  Berry,  Jr.,  3/  17/  00 
 mentioned  in  the  proposed  rule-  making,  we  can  group  most  suggestions  under  two  broad 


 categories. 
 First,  the  simplest  and  least  objectionable  category  includes  variations  on  the  theme 
 proposed  by  Mr.  Geller  and  others.  Namely,  broadcasters  have  a  duty  to  promote  a  core  value 
 of  public  interest,*  which  they  can  fulfill  by  providing  blocks  of  free  air  time  during  the 
 broadcast  day.  What  differentiates  the  varieties  of  the  Geller  scheme,  if  you  will,  is  how  much 
 time  broadcasters  should  allot,  in  what  increments,  provided  to  whom,  and  at  what  point  during  a 
 campaign.  Subtler  refinements  of  the  Geller  scheme  even  address  such  topics  as  production 
 value  and  content,  e.  g.,  only  the  candidate  speaking  and  no  surrogates,  no  background  music. 
 A  second,  and  more  progressive,  category  is  the  notion  of  the  time  bank.  In  a  time 
 bank  approach,  networks  grant  candidates  a  set  amount  of  air  time  that  the  candidates  can  opt  to 
 use  whenever  wanted.  Usually  in  this  approach  the  minutes  in  the  time  bank  are  weighted  so 
 that,  for  example,  prime  time  minutes  are  worth,  say,  twice  that  of  early  morning  minutes. 
 Another  time  bank  approach  would  involve  the  FCC  assessing  fees  of  one  sort  or  another  on 
 broadcasters,  which  they  would  pay  into  a  fund  that  the  agency  would  then  use  essentially  to 


 /  Henry  Geller,  Article:  Public  Interest  Regulation  in  the  Digital  TV  Era,  16  Cardozo 
 Arts  &  Ent  L.  J.  341  (1998).  In  this  article,  Geller  makes  essentially  the  same  proposal  as  that 


 credited  to  him  in  the  proposed  rulemaking.  In  any  event,  Geller  stresses  the  importance  that 
 the  broadcaster  contribute  to  an  informed  electorate  through  .  .  .  political  broadcasts,  citing  the 
 public  service  requirements  of  the  1934  Communications  Act.  While  others  have  characterized 
 this  public  interest  requirement  as  almost  Jeffersonian  in  nature.  See,  e.  g.,  Jeffrey  A.  Levinson, 
 An  Informed  Electorate:  Requiring  Broadcasters  to  Provide  Free  Air  time  to  Candidates  for 
 Public  UfJice~  72  B.  U.  L.  Rev.  143  (1992)  (wherein  he  states  that  requiring  _  .  broadcasters  to 
 provide  free  air  time  .  .  .  would  best  promote  Jeffersons  idea  of  ensuring  that  Americans  are 
 informed  and.  in  [Jeffersons]  view,  free. 


 3 


 .  _.  _  .__^  .-  ^.  _  -..--  _...___  I  .  ._.-  -..--.-.  - 
 -.I  _ 
186
 K.  H.  Berry,  Jr.,  3/  17/  00 
 buy  time  for  candidates. 


 In  both  of  the  standard  models  under  consideration,  debate  continues  to  rage  over  whether 
 broadcasters  should  provide  time  solely  to  major  candidates  or  should  they  also  accord  some  to 
 political  parties  as  entities  to  divvy  up  and  distribute  as  they  see  fit.  In  any  event,  the  participants 
 in  these  debates  have  not  even  settled  the  fundamental  question  of  what  is  a  major  party  or  a 
 major  party  candidate. 
 Having  sketched  in  these  broad  outlines,  I  would  like  to  commend  to  your  attention 
 several  specific  recommendations  to  implement  free  air  time.  Afterwards,  I  will  make  a  personal 
 pitch  for  my  favorite  and  then  move  onto  the  next  topic  that  you  solicited  commentary  on:  What 
 authority  does  the  FCC  possess  to  do  any  of  this? 
 *Been  there  -  done  that:  In  1996  advocates  of  free  air  time  persuaded  some  of  the 
 nations  major  broadcasters  to  offer  two  of  the  presidential  candidates  some  one  to  two-  and  one- 
 half  minute  segments.  Another  major  broadcaster,  ABC,  offered  them,  however,  an  entire  prime- 
 time  hour  on  the  eve  of  the  November  election  -  both  refused. 
 3The  5-  percent  solution:  Also  in  1996,  Your  predecessor  at  the  FCC,  Reed  Hundt 
 recommended  that  broadcasters  devote  a  modest  5  percent  of  programming  time  on  digital 
 TV.  Specifically,  he  stated  that  broadcasters  should  apportion  this  5  percent  between 


 */  Channeling  Injluence,  The  Broadcast  Lobby  and  the  %70-  Billion  Free  Ride,  How  Free 
 Air  Time  for  Federal  Candidates  Can  Be  Achieved,  at  2  or  5, 
 <http://  www.  commoncause.  org/  publications/  O40297  rpt8.  htm>.  - 


 3/  Id.  at  4  of  5. 
 4 
187
 K.  H.  Berry,  Jr.,  3/  17/  00 
 educational  TV  and  free  time  for  candidates.  Interestingly,  he  posited  that  the  increased  digital 


 spectrum  allowed  for  even  including  state  and  local  candidates  within  the  5  percent  plan.  In 
 1996  numbers  this  approach  would  today  yield  about  1,750  hours  of  free  digital  air  time  every 
 year.  Unfortunately,  Hundt  has  not  sketched  out  his  idea  in  any  greater  depth.  But  it  does  not 
 require  a  perceptive  genius  to  envision  the  FCC  directing  each  national  digital  broadcaster  to 
 make  available  to  each  major  party  a  fair  proportion  of  the  5  percent.  In  this  way,  the  networks 
 could  hand  off  the  thorny  problem  of  which  candidates  at  what  level  they  should  allot  time. 
 Putting  the  national  parties  on  the  hook  to  work  out  the  problem  with  their  state  affiliates  and  so 
 on  down  the  food  chain  with  each  affiliate  dealing  one-  to-  one  with  a  broadcasters  affiliate  might 
 put  meat  on  the  bones  of  Hundts  proposal.  4 
 A  five-  minute  fix:  Former  journalist  and  now  campaign  finance  reform  gadfly  Paul 
 Taylor  has  proposed  that  presidential  candidates  should  receive  five  minutes  of  free  air  time  on 
 alternating  nights,  to  be  carried  by  all  radio  and  television  stations,  for  the  last  five  weeks  of  the 
 campaign.  5 
 Two  modest  proposals:  In  recent  Congressional  history,  members  have  proposed  many 
 different  plans  for  free  air  time.  Two  such  representative  proposals,  one  each  from  the  House 
 and  Senate,  called  for  broadcasters  to  provide  free  air  time  for  the  45-  days  before  the  general 


 4/  0ne  statistical  tidbit  of  which  you  may  not  be  aware  is  that  as  of  1991,  every 
 industrialized  nation  in  the  world,  save  the  United  States,  Norway,  and  Sri  Lanka  provided  some 
 free  air  time  to  parties.  Id. 


 5/  Levinson.  72  B.  U.  L.  Rev.  at  150  &  n.  22. 
 5 
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 K.  H.  Berry,  Jr.,  3/  17/  00 
 election  to  all  legally  qualified  candidates  for  president,  vice-  president,  senator,  and 


 representative,  and  as  a  condition  upon  broadcast  license  renewal  [that  broadcasters  should] 
 provide  at  least  two  hours  annually  to  the  national  organization  of  each  qualified  political  party 
 and  the  state  organization  of  each  qualified  .  .  .  party  of  the  state  within  which  the 


 preponderance  of  the  stations  audience  resides.  6 
 Of  course,  any  of  the  foregoing,  in  addition  to  Gellers  recommendation,  is  far  preferable 
 to  the  status  quo.  However,  my  specific  recommendation  in  this  category  of  Geller  schemes  is 
 drawn  from  a  piece  of  legislation  first  proposed  by  then  Senator  Al  Gore,  Jr.,  in  1988.7  Gores 
 bill  provided  that  broadcasters  .  .  .  give  thirty  minutes  per  week  during  prime  time  .  .  .  for  the 
 major  party  presidential  nominees  .  .  .  in  the  next  to  last  month  before  the  election.  During  the 
 .  .  .  last  month,  the  .  .  .  allotment  would  be  raised  to  one  hour,  and  in  the  final  week  .  .  .  one  and 
 one-  half  hours.  The  relative  beauty  of  Gores  plan,  and  we  are  talking  about  which  of  the  seven 
 dwarves,  so  to  speak,  is  prettier  than  the  rest,  is  that  it  also  provides  time  for  house  and  senate 
 candidates.  They  would  get  5-  10-  30  minutes  each  per  week  in  the  next  to  last  month  before-  last 
 month  before-  week  before  an  election. 
 8A  Piggv  Bank  Approach:  As  mentioned  above,  the  second  category  of  proposals 


 includes  those  calling  for  broadcasters  to  create  time  banks.  This  technique  would  have  media 


 b/  Id.  at  15  1  &  nn.  24-  25. 
 7/  Id.  at  158  &  nn.  19,  52-  58. 
 /  A  great  discussion  of  these  and  other  proposals  can  be  found  in  Reed  Hundt,  Article: 
 The  Public  3  Airwaves:  What  Does  the  Public  Interest  Require  of  Television  Broadcasters?,  45 
 Duke  L.  J.  1089.  1105-  09  (1996). 


 6 
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 K.  H.  Berry,  Jr.,  3/  17/  00 
 donate  air  time  from  which  candidates  could  withdraw  during  their  campaigns.  Two  specific 


 plans  Reed  Hundt  has  discussed  are  worthy  of  further  consideration: 
 [O]  ne  approach  would  be  to  grant  each  eligible  candidate  a  right 
 to  a  specific  dollar  amount  of  free  time.  Candidates  would  then 
 negotiate  with  broadcasters  for  advertising  time,  just  as  they  currently 
 do,  but  would  pay  with  time  bank  credits  rather  than  actual  dollars. 
 Why  would  broadcasters  accept  credits?  Because  they  would  be 
 required  to  provide  free  time  worth,  say,  2%  of  their  annual  advertising 
 revenues  as  a  condition  of  using  the  public  airwaves  for  free. 


 Another  approach  to  which  he  alludes  is  one  first  proposed  by  columnist  William  Safire. 
 One  aspect  of  this  suggestion  is  that  the  FCC  can  offer  bidding  credits  to  broadcasters  [who] 
 could  decide  to  reduce  the  cash  price  of  their  licenses  by  agreeing  to  provide  in  kind  public 
 service. 
 Does  the  FCC  have  rule-  making  authority  for  any  of  these  proposals? 
 Yes,  is  the  short  answer  to  this  question.  Although  there  is  a  school  of  thought  that 
 provisions  of  the  sort  discussed  in  this  comment  are  clearly  violative  of,  among  others,  the  First 
 Amendment  rights  of  the  broadcasters.  9  While  others  might  argue  that  the  types  of  reforms 
 covered  herein  require  statutory  cover.  lo  Still,  most  commentators,  including  Hundt  and  Geller, 
 have  concluded  that  the  FCC  has  within  its  power  to  review  licensing,  the  additional  power  to 


 /  See,  e.  g.,  Douglas  C.  Melcher,  Note:  Free  Air  Time  for  Political  Advertising:  An 
 Invasion  of  the  Protected  First  Amendment  Freedoms  of  Broadcasters,  67  Geo.  Wash.  L.  Rev. 
 100  (1998). 


 O/  See  e.  g.,  Levinson,  supra  at  note  1;  Susanna  M.  Zwerling,  Note:  Reclaiming  a  Public 
 Resource:  TAe  Constitutionality  of  Requiring  Broadcasters  to  Provide  Free  Television 
 Advertising  Time  to  Candidates  for  Federal  Ofice,  18  N.  Y.  U.  Rev.  L.  &  Sot.  Change  213 
 (1991). 


 7 
190
 K.  H.  Berry,  Jr.,  3/  17/  00 
 attach  qualifications  to  granting  those  licenses.  It  derives  this  power  from  its  congressional 


 mandate  to  regulate  broadcasters  according  to  the  public  interest.  In  fact,  the  President  in  an 
 address  in  1997  to  a  conference  held  at  the  Annenberg  Public  Policy  Center  on  the  subject  of  free 
 air  time  stated  that  I  have  supported  the  idea  of  free  TV  time  for  many  years  .  .  .  [and][  e]  ver 
 since  the  FCC  was  created,  broadcasters  have  had  a  compact  with  the  public:  in  return  for  the 
 public  airwaves,  they  must  meet  public  interest  obligations.  Later  in  this  address  the  President 
 also  stated:  I  believe  broadcasters  who  receive  digital  licenses  should  provide  free  air  time  for 
 candidates,  and  I  believe  the  FCC  should  act  to  require  free  air  time  for  candidates.  Reed  Hundt 
 has  repeatedly  talked  about  how  the  FCC  has  the  power,  the  precedent,  and  the  procedures  to 
 assure  free  access  to  the  airwaves.  The  current  administration  has  reiterated  its  belief  that  free 
 air  time  is  a  public  interest  obligation  and  consequently  subject  to  FCC  regulation. 
 I  argue  that  President  Clinton,  Hundt,  Geller,  et.  al.  are  on  strong  ground  when  they  argue 
 that  the  FCC  can  regulate  free  air  time.  The  agency  derives  this  authority  from  both  the  old 
 Communications  Act  of  1934  and  the  new  Telecommunications  Act  of  1996.  Furthermore,  the 
 agency  derives  solid  support  from  the  Supreme  C~  urt.~ 
 Conclusion 


 l  /  The  Telecommunications  Act  specifically  states:  [  nlothing  in  this  [Act]  shall  be 
 construed  as  relieving  a  broadcasting  station  from  its  obligation  to  serve  the  public  interest, 
 convenience,  and  necessity. 


 */  See,  e.  g.,  Red  Lion  v.  FCC,  395  U.  S.  367  (1969)  (where  the  Court  held  the  FCCs 
 public  interest  authority  included  the  adoption  of  the  fairness  doctrine  and  that  the  public  owns 
 the  broadcast  spectrum  and  their  interest  should  be  served.) 


 8 


 -.  ^  I_-  __._  ___  __,-.  .  ._  _  .-._-^  ll--......-.  _---..  T.  11.  ---..  - 
191
 K.  H.  Berry,  Jr.,  3/  17/  00 
 Nonstop  fund-  raising  is  a  problem  that  besets  modern  day  politics.  Politicians  need 


 money  in  ever  larger  quantities  because  to  compete  they  feel  they  must  advertise.  They  feel  they 
 must  advertise  on  television  to  capture  the  attention  of  the  bulk  of  the  electorate.  Our  national 
 broadcasters  claim  countless  billions  in  advertising  dollars  from  politics  but  many  thoughtful  and 
 concerned  observers  contend  that  this  mess  can  be  cleaned  up.  The  shovel  with  which  these 
 reformers  wish  to  clean  out  the  stables  is  the  public  interest  obligation  broadcasters  must  fulfill  to 
 retain  their  licenses.  These  reformers  argue  that  the  FCC  can  through  its  rule  making  authority 
 require  broadcasters  to  donate  free  air  time  to  political  candidates.  Many  different  sources  have 
 forwarded  many  different  suggestions  to  enact  this  reform.  Examples  of  the  two  broad  categories 
 under  which  most  of  these  suggestions  fall  include  mandating  blocks  of  time  or  time  banks. 
 One  of  my  purposes  for  writing  this  comment  is  to  support  the  proposal  of  Henry  Geller 
 and  to  propose  several  others.  Another  of  my  purposes  in  writing,  is  to  lend  support  to  the  voices 
 of  those  who  would  argue  to  you  that  Congress  has  enabled  the  FCC  to  make  rules  governing 
 granting  free  air  time  to  political  candidates.  Therefore,  I  urge  you  to  give  great  weight  to  Mr. 
 Gellers  proposal  and  those  I  have  mentioned  herein. 
 Respectfully, 
192
 William  D.  Hood 
 Administrative  Law 
 Professor  Reynolds 
 Spring  2000 


 Introduction 
 In  response  to  the  Federal  Communications  Commissions  request  for  public  comments 
 entitled  Public  Interest  Obligations  of  Television  Broadcast  Licenses(  FCC  99-  390;  47  C.  F.  R. 
 Part  73),  my  views  are  described  below.  I  am  a  second  year  law  student  at  the  University  of 
 Tennessee  College  of  Law.  I  feel  that  Digital  Television  technology  offers  a  unique  opportunity 
 to  increase  the  quality  of  television  for  all  Americans.  The  transition  by  many  broadcasters  from 
 analog  service  to  a  digital  one  provides  the  Federal  Communications  Commission  an  opportunity 
 to  promulgate  and  expand  the  existing  public  interest  rules.  By  clarifying  the  public  interest 
 obligations  of  broadcast  licensees  specifically  in  the  areas  of  emergency  warnings,  political 
 discourse,  services  to  the  disabled,  and  educational  programming,  digital  television  technology 
 has  the  potential  to  be  one  of  the  most  significant  technological  advances  enjoyed  by  all 
 American  viewers. 
 Emergency  Warning  System 
 Television  has  long  been  the  first  warning  for  many  Americans  in  times  of  impending 
 disaster  or  emergencies.  Many  viewers  are  familiar  with  the  Emergency  Broadcast  System,  its 
 alarm,  and  the  running  line  of  text  that  accompanies  these  warning  at  the  bottom  of  the  television 
 screen.  Although  these  are  tremendous  advances,  with  the  advent  of  digital  television, 
 broadcasters  should  be  encouraged  to  go  farther  and  develop  a  more  comprehensive  warning 
 system.  Paragraph  eighteen  (18)  of  the  request  for  comments  quotes  the  Advisory  Committee  as 
 saying  digital  technology  will  provide  innovative  and  new  ways  to  transmit  warnings,  such  as 


 __  _._  .,.  ._.----..-  11.  _  1  ._.~  I  --.   
193
 pinpointing  specific  households  or  neighborhoods  at  risk,  and  suggests  that  digital  television 
 broadcasters  take  advantage  of  these  technological  advances.  Not  only  do  I  agree,  but  I  also 
 would  propose  that  the  broadcasters  make  greater  technological  advances  that  include  providing 
 safety  information  specific  to  the  particular  area  as  well. 
 One  of  the  biggest  problems  with  the  present  Emergency  Broadcast  System  is  that  the 


 information  provided  to  viewers  is  vague  and  nonspecific.  Many  television  viewers  discover  that 
 the  county  in  which  they  live  is  part  of  a  larger  area  that  is  under  some  type  of  a  warning  for 
 potentially  damaging  or  harmful  events.  The  warnings  typically  create  three  types  of  responses 
 in  viewers.  The  first  is  one  of  apathy.  This  type  of  individual  reasons  that  since  every  other  time 
 a  warning  is  issued  he  or  she  is  never  affected.  As  a  result,  this  individual  does  little  to  prepare 
 for  the  impending  danger.  The  second  type  of  individual  is  the  cautious  one.  The  cautious 
 individual  immediately  begins  taking  precautions  once  the  warning  is  issued  to  ensure  that  he  or 
 she  is  safe  should  danger  come  his/  her  way.  The  third  type  of  viewer  is  a  combination  of  the 
 previous  two  and  reacts  in  the  same  way  depending  on  their  individual  assessment  of  what  is 
 going  on  before  deciding  how  to  respond. 
 All  three  types  of  individuals  would  be  better  served  by  the  technological  advantages  of 
 individualized  warnings  and  safety  information  that  digital  television  make  available.  The 
 apathetic  viewer  would  be  informed  only  when  he  or  she  is  at  risk.  On  the  other  hand,  the 
 cautious  would  know  when  not  to  panic.  Furthermore,  by  including  safety  instructions,  both 
 types  of  individuals  would  be  better  prepared  to  confront  whatever  potential  danger  for  which 
 they  are  at  risk.  Targeted  information  should  include  information  on  how  best  to  prepare  for  the 
 potential  effects  of  a  storm.  It  could  include  evacuation  information  if  necessary.  If  at  all 


 2 
194
 possible,  the  information  could  include  the  location  of  shelters  and  aid  facilities  closest  to  the 
 area  in  which  the  viewer  resides.  By  providing  such  information  the  viewer  is  better  informed  on 


 how  to  deal  with  the  situation  at  hand  and  can  best  be  best  prepared  how  to  avoid  a  potentially 
 harmful  event.  When  confronted  with  the  potential  of  damaging  weather,  I  feel  confident  in 
 saying  that  most  Americans  turn  to  their  television  for  information.  In  this  age  of  vast 
 technology,  such  as  digital  technology,  broadcasters  should  be  required  to  provide  the  best 
 possible  warning  devices  at  their  disposal. 
 The  costs  of  such  added  benefits  seem  to  far  outweigh  any  additional  burden  that  would 
 be  placed  on  broadcasters.  This  is  confirmed  by  the  Advisory  Committees  Report  finding  cited 
 in  paragraph  eighteen  (18)  that  most  of  these  innovations  will  require  only  nominal  use  of  the 
 six  megahertz  (6  MHz)  bandwidth  allocated  to  digital  broadcasters.  Potential  arguments  against 
 the  above  proposals  probably  would  fall  along  the  lines  of  undue  cost  and  increased  potential  for 
 mistake.  All  of  these  problems,  though,  are  outweighed  by  the  public  good  and  are  well  within 
 the  Federal  Communications  Commissions  statutory  requirement  to  serve  the  public  interest, 
 convenience,  and  necessity.  Further  complicating  the  implementation  of  such  a  policy  is  the 
 question  of  whether  such  technology  now  exists.  If  not,  then  the  Federal  Communications 
 Commission  in  cooperation  with  FEMA  should  promote  the  development  and  phasing  in  of  such 
 programs  within  a  certain  period  of  time. 
 Political  Discourse 


 My  second  subject  for  comment  deals  with  those  requested  on  the  potential  for 
 broadcasters  to  be  used  to  promote  political  discourse.  As  is  stated  in  paragraph  thirty-  four  (34) 
 of  the  request  for  comments,  and  accepted  as  true  by  this  writer,  the  Federal  Communications 


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 Commission  has  interpreted  the  public  interest  standard  to  include  political  campaign 
 programming.  The  request  for  comments  also  correctly  states  the  effect  television  has  on 
 political  discourse  and  apathy  in  the  quoted  material  from  the  Supreme  Court  in  the  same 
 paragraph.  Both  of  these  statements  point  to  a  greater  responsibility  for  broadcasters  in  political 
 discourse.  The  request  correctly  concludes  that  a  majority  of  Americans  rely  on  television  for 
 their  news  and  information.  This  being  the  case,  no  better  medium  provides  an  opportunity  to 
 engage  potential  voters  in  one  of  their  more  important  constitutional  rights.  Digital  television 
 technology  further  this  potential  by  making  interactive  information  available  while  viewers  are 
 watching  their  favorite  programs.  One  can  easily  imagine  such  abuses  as  political  slogans  and 
 propaganda  at  the  bottom  of  television  screens  while  viewers  are  watching  their  favorite  nightly 
 programs.  Despite  this  potential  for  abuse,  the  availability  of  air  time  to  potential  candidates  far 
 outweighs  this  possibility  for  abuse. 
 I  support  the  recommendations  made  in  paragraphs  thirty-  seven  (37)  and  thirty-  eight  (38) 
 which  would  require  broadcasters  to  provide  a  certain  amount  of  time  to  each  candidate  for  a 
 particular  election  each  night.  For  example,  as  a  general  election  draws  near,  broadcasters  would 
 be  required  to  allow  the  candidates  for  state  Senator  to  speak.  The  following  night,  the 
 candidates  for  House  of  Representatives  could  speak.  Inherent  in  this  recommendation  is  that 
 certain  parameters  would  be  imposed  that  limited  the  amount  of  time  available  and  how  far 
 before  each  election  the  air  time  would  be  made  available.  Furthermore,  using  the  selectivity  that 
 digital  television  creates,  one  can  imagine  allowing  local  candidates  for  a  specific  district  within 
 one  community  being  able  to  speak  to  only  the  potential  voters  in  that  candidates  district  while 
 another  candidate  speaks  only  to  his  or  hers.  In  meeting  this  requirement,  broadcasters  should  be 


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 left  with  the  discretion  to  decide  what  candidates  will  be  allowed  to  speak  on  a  certain  night  and 
 at  what  time  that  night  they  will  be  allowed  to  use  the  air  time.  Finally,  it  seems  well  within  the 
 Federal  Communications  Commissions  goal  of  having  broadcasters  serve  the  public  interest  to 
 have  them  provide  air  time.  It  also  would  appear  to  be  a  part  of  the  broadcasters  civic  duty  that 
 it  should  do  so.  Furthermore,  ten  minutes  each  night  does  not  seem  to  be  a  substantial  burden  on 
 broadcasters  in  light  of  the  potential  good. 
 The  broadcasters  should  also  be  required  to  provide  air  time  for  political  advertisements 
 especially  for  local  elections.  In  paragraph  thirty-  eight  (38),  the  Federal  Communications 
 Commission  seeks  comments  on  the  proposal  of  former  General  Counsel  Henry  Geller  to  require 
 broadcasters  to  provide  a  certain  amount  of  air  time  to  candidates  in  advance  of  a  general 
 election.  I  support  this  recommendation  because  of  the  positive  effect  it  could  have  for  local 
 candidates.  Local  candidates  often  find  it  hard  to  get  their  message  to  the  voting  public  due  to 
 the  overwhelming  cost  of  television  advertisements.  By  removing  this  burden,  candidates  are 
 allowed  to  get  their  views  to  the  public,  and  the  public  is  thereby  able  to  make  a  more  informed 
 judgement.  I  agree  with  Gellers  suggestion  that  the  licensees  should  be  left  to  decide  what  races 
 are  to  be  covered,  but  I  also  feel  that  the  burden  should  be  placed  on  the  licensee  to  show  why  it 
 chose  as  it  did.  Finally,  I  fully  agree  with  the  Advisory  Commissions  recommendation  that  the 
 Federal  Communications  Commission  should  prohibit  broadcasters  from  making  blanket  bans  on 
 the  sale  of  air  time  to  political  candidates.  (Paragraph  thirty-  eight)  As  is  noted  time  and  time 
 again,  television  is  the  major  source  of  information  for  many  Americans.  To  allow  blanket  bans 
 would  undercut  the  broadcasters  duty  to  promote  the  public  interest.  Broadcasters  have  a  duty 
 to  keep  their  viewers  well  informed  of  all  events  in  the  community  in  which  they  serve  and  this 


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 includes  political  discourse. 
 In  making  this  comment,  I  feel  there  should  be  some  provision  for  review  of  this  type  of  a 
 program  to  see  if  it  is  working.  It  seems  contradictory  to  impose  these  requirements  for  political 
 air  time  if  the  public  does  not  take  advantage  of  the  information  that  it  provides.  A  situation  can 
 easily  be  created  where  the  public  pays  little  or  no  attention  to  the  air  time  being  provided  to 
 political  candidates.  After  a  certain  number  of  years,  if  voter  participation  has  not  increased  or 
 where  there  is  a  backlash  against  the  program,  then  a  review  of  this  requirement  would  be  more 
 than  necessary.  If  it  were  ever  to  reach  this  point,  the  requirement  would  clearly  have  become  a 
 burden  and  therefore  outweigh  the  Federal  Communications  Commissions  duty  to  promote 
 public  interest. 
 Services  to  Disabled  Viewers 
 Equally  as  important  as  the  broadcasters  duty  to  its  viewers  regarding  political  discourse, 
 is  its  responsibility  to  its  disabled  viewers.  This  duty  can  be  met  in  two  major  ways:  (1) 
 improving  currently  available  services,  and  (2)  introducing  new  services  that  digital  technology 
 makes  available.  Disabled  viewers  as  a  matter  of  public  policy  deserve  to  be  treated  equally  and 
 receive  the  same  quality  of  experience  that  television  affords  as  non-  disabled  viewers.  Digital 
 television  technology  offers  a  truly  unique  opportunity  to  improve  the  quality  of  television  to  all 
 viewers. 
 Closed  captioning  has  greatly  improved  television  quality  for  hearing-  impaired  viewers. 
 Like  most  advances,  closed  captioning  does  have  its  problems.  Frequently,  closed  captioning 
 text  and  the  captions  that  broadcasters  place  at  the  bottom  of  the  screen  interfere  with  one 
 another.  As  is  pointed  out  in  paragraph  twenty-  four  (24)  of  the  request  for  comments,  allowing 


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 viewers  to  change  the  size  of  the  text  in  order  to  see  both  the  test  and  the  caption  would  be  a 
 significant  improvement.  The  availability  of  digital  technology  should  be  used  to  expand  closed 
 captioning,  and  it  should  be  used  to  make  closed  captioning  available  for  all  television  programs 
 offered  by  the  broadcaster.  Disabled  viewers  deserve  to  be  able  to  watch  any  program  they  desire 
 and  not  be  limited  to  watching  only  those  that  have  closed  captioning  available.  As  is  mentioned 
 in  paragraph  twenty-  six  (26)  of  the  request  for  comments,  broadcasters  were  to  gradually 
 implement  closed  captioning.  With  the  advent  of  digital  television  technology,  the  time  is  now 
 to  make  significant  improvement  in  closed  captioning.  Clearly  gradually  needs  to  be  replaced 
 with  a  more  stringent  requirement  such  as  as  soon  as  possible,  but  within  reason. 
 Digital  technology  also  increases  the  possibilities  for  new  programs  to  be  made  available 
 to  disabled  viewers.  Specifically,  video  description  to  accompany  oral  description  and 
 conversation  would  greatly  improve  television  quality  for  those  viewers  with  sight  impairments. 
 I  fully  agree  with  the  recommendations  contained  in  paragraph  twenty-  seven  (27).  With  the 
 enhanced  capability  of  digital  technology,  it  is  time  for  broadcasters  to  take  the  necessary  steps  to 
 meet  the  needs  of  sight  impaired  viewers.  Video  description  can  create  an  experience  for  sight 
 impaired  viewers  similar  to  that  created  by  closed  captioning  that  is  enjoyed  by  hearing-  impaired 
 viewers.  Clearly,  video  description  technology  cannot  be  developed  overnight,  but  digital 
 technology  greatly  increases  the  possibility  that  video  description  can  become  a  reality. 
 Broadcasters  should  be  required  to  develop  video  description  technology  and  provide  it  to 
 viewers  within  a  time  period  such  as  five  years.  If  they  are  unable  to  do  so,  the  Federal 
 Communications  Commission  should  require  the  broadcasters  to  point  to  a  concrete  reason  why. 


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 Childrens  Proeramminq 
 Finally,  digital  television  technology  should  be  used  to  improve  the  quality  of  television 
 available  to  children.  Specifically,  I  agree  with  the  views  raised  by  People  for  Better  Television. 
 First,  broadcasters  should  make  more  educational  programming  available.  For  some  children, 
 other  than  school,  television  is  the  only  other  educational  medium  available  to  them.  They  come 
 home  from  school  and  immediately  turn  on  the  television.  Broadcasters  should  target  the  after- 
 school  hours  to  show  educationally  oriented  programming.  Second,  I  also  agree  with  People  for 
 Better  Televisions  proposal  to  improve  the  voluntary  rating  system.  For  some  parents,  this  is  the 
 only  way  for  them  to  know  what  their  children  are  watching.  As  noted,  the  increased  capability 
 offered  by  the  digital  technology  makes  this  more  than  realistic.  These  ratings  should  be 
 associated  with  the  show  during  promotions  of  the  show  as  well  as  when  the  show  is  actually 
 being  viewed  as  recommended.  Again,  both  of  these  programs  seem  to  be  well  within  the  FCCs 
 duty  to  promote  the  public  interest.  Broadcasters  are  already  providing  educational  programs  and 
 ratings  systems.  Requiring  them  to  improve  these  systems  using  the  available  digital  television 
 technology  does  not  appear  to  impose  a  significant  burden  on  them. 
 One  final  comment  on  the  proposals  for  childrens  programming  I  would  make  is  in 
 regard  to  violence  and  adult  oriented  themes  that  are  currently  prevalent.  I  would  recommend 
 that  broadcasters  seek  to  create  a  mechanism  by  which  parents  could  program  their  televisions  to 
 block  these  types  of  programs.  It  would  seem  to  be  a  viable  possibility  if  each  show  of  this  type 
 carried  a  certain  code  that  when  recognized  by  the  television  would  be  refused.  Another 
 suggestion,  would  be  to  require  that  when  broadcasters  provide  a  range  of  programming  at  one 
 specific  time  slot  so  that  parents  can  choose  what  programs  their  children  can  watch.  This 


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 enables  parents  to  better  police  what  shows  are  available  to  their  children  and  provides  them  with 
 a  mechanism  to  prevent  their  children  from  viewing  inappropriate  shows. 
 Digital  television  offers  a  unique  opportunity  to  improve  the  quality  of  television  for  all 
 viewers.  For  most  Americans,  television  is  the  most  widely  used  of  all  entertainment  media 
 available.  In  meeting  its  duties  to  these  viewers,  broadcasters  should  be  required  to  use  digital 
 technology  to  improve  emergency  warning  systems  as  well  as  provide  important  safety 
 information  in  potentially  dangerous  circumstances.  Second,  broadcasters  are  already  required 
 to  participate  in  political  discourse  by  providing  air  time  for  commercials,  but  this  responsibility 
 should  be  expanded  especially  in  local  communities.  Third,  broadcasters  in  providing  services  to 
 disabled  Americans  should  be  required  to  offer  the  best  available,  state-  of-  the-  art,  services. 
 Digital  technology  should  serve  as  a  catalyst  to  increase  broadcasters  responsibilities  to  disabled 
 viewers.  Finally,  digital  technology  offers  a  unique  opportunity  to  improve  the  quality  of 
 childrens  programming.  As  a  responsible  American,  I  feel  that  the  Federal  Communications 
 Commission  should  use  digital  technology  as  an  opportunity  to  improve  the  quality  of  television 
 for  all  Americans. 


 .x  -  II-^._  ^  ..-.-.  ,-  lll.---..--- 
201
 Raymond  Kyle  Williams 
 1501  Clinch  Avenue 
 Knoxville,  Tennessee  379  16 
 March  11,200O 


 Federal  Communications  Commission 
 445  12h  Street,  Room  TW-  A306,  SW 
 Washington,  DC  20554 


 Re:  Public  Interest  Oblipations  of  Television  Broadcast  Licensees 
 MM  Docket  No.  99-  360;  FCC  99-  390 


 Freedom  of  Speech  Implications  to  Digital  Television  Regulation 


 Dear  Sir  or  Madam: 
 I  am  writing  to  you  to  express  my  concern  over  compromises  in  First  Amendment 
 liberties  that  will  result  if  FCC  99-  390,  Public  Interest  Obligations  of  Television  Broadcast 
 Licensees,  is  used  as  a  vehicle  to  adopt  generic,  across-  the-  board,  content-  based  regulations, 
 restrictions,  and  obligations.  I  am  a  second  year  law  student  at  the  University  of  Tennessee  with 
 not  only  a  professional  interest  in  constitutional  liberties,  but  also  a  personal  stake  in  the  future 
 of  my  freedom  of  speech.  I  have  two  objections  to  the  approval  of  new  public  interest  rules  for 
 digital  television;  one  a  matter  of  substantive  application,  another  an  issue  of  timing.  While  free 
 speech  within  the  newer  forms  of  mass  communication  is  not  absolute,  each  standard  is 
 evaluated  differently  according  to  the  inherent  characteristics  of  that  particular  media  medium. 
 Because  digital  television  is  not  readily  accessible  by  the  vast  populate  and  is  unlikely  to  be 
 within  the  immediate  future,  this  medium  should  be  afforded  a  higher  level  of  free  speech 
 protection  subject  only  to  compelling,  legitimate  government  interests.  This  First  Amendment 
 protection  should  exceed  that  afforded  to  television  broadcasts  and  cable  communications 
 ensuring  the  growth  of  the  marketplace  of  ideas.  Secondly,  adopting  regulations  during  this  the 
202
 preliminary  stages  of  the  digital  transition,  while  it  still  remains  unclear  what  form  the  new 
 services  will  take,  are  bound  to  both  vague  and  overbroad.  Quite  simply,  adopting  any  form  of 


 regulations  today  would  be  premature. 
 FIRST  AMENDMENT  FREE  SPEECH  LIBERTIES 
 When  the  founders  of  our  country  set  forth  the  limitation  that  Congress  shall  make  no 
 law  .  .  .  abridging  the  freedom  of  speech,  it  is  unlikely  that  any  of  the  authors  could  envision  the 
 protection  applying  to  any  form  of  communicating  other  than  the  written  or  spoken  word.  It  is 
 easy  to  concede  that  the  framers  could  not  have  predicted  the  emergence  of  modem 
 communications  through  radio  and  television  broadcasts,  telephone  transmissions,  cable 
 television,  the  Internet,  and  digital  television.  However,  it  does  not  logically  follow  that  these 
 new  forms  of  mass  communication  would  not  be  afforded  the  protections  and  liberties  provided 
 by  the  First  Amendment.  It  is  more  feasible  that  the  Framers  would  have  encouraged  the 
 development  of  new  forms  of  communication  that  allow  the  furtherance  of  free  speech  interests 
 and  an  open  exchange  of  ideas. 
 The  protections  and  liberties  embodied  within  the  text  of  the  First  Amendment  rest  upon 
 a  profound  national  commitment  to  the  principle  that  debate  on  public  issues  should  be 
 uninhibited,  robust,  and  wide  open.  l  Supreme  Court  Justice  Oliver  Wendell  Holmes  insisted 
 that  the  primary  goal  of  the  First  Amendment  was  to  guarantee  a  marketplace  of  ideas,  where 
 truth  and  honest  debate  emerged  from  a  multiplicity  of  voices.  772  The  free  exchange  of  ideas 


 within  this  market  serves  as  a  protector  of  American  democracy,  a  promoter  of  public  discussion 


   New  York  Times  Co.  v.  Sullivan,  376  U.  S.  254,  270  (1964). 
   Justice  Holmes  introduced  the  marketplace  of  ideas  doctrine  in  Abrams  v.  United  States,  250  U.  S.  616,630  (1919), 
 where  he  argued: 
 [W]  hen  men  have  realized  that  time  has  upset  many  fighting,  they 
 may  come  to  believe  .  that  the  ultimate  good  desired  is  better 
 reached  by  free  trade  of  ideas  -  that  the  best  test  of  truth  is  the  power 
 of  the  thought  to  get  itself  accepted  in  the  competition  of  the  market.  . 


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 of  competing  ideas,  and  as  a  multiplier  of  peoples  participation  in  society  and  government.  This 
 market  is  essential  to  our  democracy,  growth,  and  future  leadership. 
 In  order  to  protect  and  ensure  a  free,  unfettered  interchange  of  ideas3  the  Supreme  Court 
 has  consistently  held  that  it  is  the  role  of  the  judiciary  to  prevent  the  government  from  interfering 
 with  the  growth  of  the  marketplace  of  ideas.  Because  the  American  political  system,  culture, 
 and  societal  life  rests  upon  the  forbiddance  of  government  censorship  and  imposed  silences 
 based  on  content  of  a  message,  the  Supreme  Court  insists  that  such  a  content-  based  restriction  is 
 presumptively  invalid.  5  However,  the  protection  of  free  speech  is  not  absolute.  The  Court  has 
 carved  out  instances  where  the  governmental  interests  outweigh  the  right  of  free  speech.  In 
 determining  the  amount  of  free  speech  protection  due  and  the  extent  of  allowable  regulation  the 
 Court  utilizes  different  standards  based  on  the  speech  medium  and  form  of  regulation.  The  Court 
 has  followed  this  approach  in  its  analysis  of  newly  developed  forms  of  speech. 
 FREE  SPEECH  &  NEW  FORMS  OF  MEDIA 
 The  Court  has  long  held  that  as  new  forms  of  media  and  mass  communication  are 
 introduced,  new  First  Amendment  standards  must  be  applied  to  each  if  there  are  differences  in 
 the  characteristics  of  each  new  forrn6  In  an  attempt  to  modernize  First  Amendment  application 


 That  at  any  rate  is  the  theory  of  our  Constitution. 
   See  Hustler  Magazine  v.  Falwell,  485  U.  S.  46,  50  (1988)  (stating  that  [  a]  t  the  heart  of  the  First  Amendment  is  the 
 recognition  of  the  fundamental  importance  of  the  free  flow  of  ideas  and  opinions  on  matters  of  public  interest 
 concern.);  New  York  Times  Co.  v.  Sullivan,  376  U.  S.  254,  269  (1964)  (stating  that  the  First  Amendment  was 
 fashioned  to  assure  unfettered  interchange  of  ideas  for  the  bringing  about  of  political  and  social  changes.  .) 
   &  FCC  v.  League  of  Women  Voters,  468  U.  S.  364,381-  82  (1984)  (stating  that  [  tlhe  freedom  of  speech  and  of 
 the  press  guaranteed  by  the  Constitution  embraces  at  the  least  the  liberty  to  discuss  publicly  and  truthfully  all 
 matters  of  public  concern  without  previous  restraint  or  fear  of  subsequent  punishment.);  In  re  Svracuse  Peace 
 Council  v.  Television  Station  WTVH,  2  FCC  Red.  5043,  5056  (1987)  (memorandum  opinion  order)  (stating  a 
 cardinal  tenet  of  the  First  Amendment  is  that  government  intervention  in  the  marketplace  of  ideas  .  .  .  is  not 
 acceptable  and  should  not  be  tolerated.) 
   See  Consolidated  Edison  Co.  v.  Public  Serv.  Commn,  447  U.  S.  530,  536  (1980)  (allowing  speech  restrictions 
 based  on  time,  place,  or  manner,  but  not  on  content);  Police  Deut.  v.  Moslev,  408  U.  S.  92,  95  (1972)  (stating  that 
 content-  based  regulations  are  presumptively  invalid). 
 6  Stephen  C.  Jacques,  Reno  v.  ACLU:  Insulatine  the  Internet,  the  First  Amendment,  and  the  Markemlace  of  Ideas, 
 American  Univ.  L.  Rev.  Vol.  46,  Book  6  (1997). 


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 to  new  technology,  the  Court  has  established  different  sets  of  rules.  The  Court  has  used  a 
 medium-  by-  medium  approach,  when  determining  the  appropriate  level  of  protection  that  should 
 be  afforded  to  print,  broadcast  radio  and  television,  telephone  communications,  and  cable 
 television,  as  each  has  emerged  onto  the  communications  landscape.  This  medium-  specific 
 approach  to  the  regulation  of  mass  communication  considers  each  medium  separately  and  applies 


 a  balancing  approach  of  competing  government  interests  to  each  form  in  a  slightly  different 
 manner.    For  the  past  century  the  Supreme  Court  has  held  that  the  amount  of  protection  offered 
 to  information  by  the  First  Amendment  depends  on  the  medium  by  which  that  information  is 
 conveyed.    Thus,  the  same  restriction  on  the  same  words  would  be  analyzed  differently  under 
 the  First  Amendment,  depending  on  whether  those  words  were  uttered  on  a  street  comer,  printed 
 in  a  newspaper,  transmitted  through  telegraph  wire,  broadcast  through  on  the  radio,  spoken  into  a 
 telephone,  or  aired  over  new  digital  television  channels.    Simply  put,  the  Court  will  review  the 
 underlying  technology  and  inherent  characteristics  of  each  new  form  of  communication  before 
 determining  whether  there  exists  a  government  interest  that  may  outweigh  the  First  Amendment 
 liberty  of  unrestrained  speech  over  that  particular  medium. 
 THE  AMERICAN  BROADCATING  SYSTEM 
 The  system  of  American  broadcasting  is  founded  upon  three  basic  principles:  (1)  the 
 electromagnetic  spectrum  through  which  broadcast  signals  travel  has  been  determined  by  the 
 government  to  be  public  property;  (2)  broadcasters  are  granted  licenses,  at  no  cost,  by  the 
 federal  government  to  use  a  portion  of  that  public  property  in  a  limited  geographical  area;  (3)  in 
 exchange  for  the  free  use  of  this  public  property,  broadcasters  are  obligated  to  act  in  the  public 


   See  Red  Lion  Broad.  Co.  v.  FCC,  395  U.  S.  367,386  (1969).  Addressing  the  First  Amendment  protections  of 
 broadcast  media,  the  Supreme  Court  in  Red  Lion  stated  that  the  differences  in  the  characteristics  of  new  media 
 justify  differences  in  the  First  Amendment  standards  applied  to  them. 


 4 
205
 interest,  convenience,  and  necessity.  Since  this  electromagnetic  spectrum  by  which  digital 
 television  is  broadcast  has  been  found  to  be  public  property  it  must  be  afforded  the  fundamental 
 protections  of  the  First  Amendment  in  order  to  be  consistent  with  the  scope  and  purpose  of  the 
 amendment  and  the  intent  of  the  Framers.  However,  within  this  broadcast  spectrum  there  exist 
 differences  that  necessitate  a  variety  of  determinative  standards. 


 Radio  and  Television  Broadcasts 
 Early  in  this  century  the  emergence  of  radio  and  television  broadcasts  brought  new 
 technology  and  communication  advances  into  the  world  of  mass  media  and  free  speech.  In  the 
 seminal  case  of  FCC  v.  Pacitica  Foundation,  the  Court  drew  new  boundaries  by  establishing 
 how  far  the  government  may  go  in  restricting  free  speech  over  broadcast  radio  and  television. 
 In  Pacifica,  the  Court  diluted  the  First  Amendment  protection  afforded  to  radio  and 
 television  broadcasts  by  drawing  a  distinction  between  obscene  speech  and  indecent  speech.  The 
 Court  concluded  that  the  FCC  law  in  question  prohibited  the  broadcast  not  only  of  obscene 
 speech,  but  also  of  the  less  harmful  indecent  speech.  The  Court  afforded  the  medium  of  radio 
 and  television  broadcasting  a  lower  level  of  First  Amendment  protection  than  any  other  form  of 
 mass  communication  previously  considered.  12 
 In  Pacifica,  the  Court  made  clear  that  the  reason  for  this  lower  standard  of  constitutional 
 protection  was  tied  directly  to  the  nature  and  characteristics  of  the  broadcast  medium  that  set  it 
 apart  from  print  communications.  The  Court  noted  two  specific  characteristics  of  the  broadcast 
 media  when  distinguishing  it  from  print  communications:  its  pervasiveness  and  its  ease  of  access 


 9  See  Fred  H.  Cate,  The  First  Amendment  and  the  National  Information  Infrastructure,  30  Wake  Forest  L.  Rev.  1,  3 
 (1995). 
 lo  Mark  Crispin  Miller,  Digital  Television  &  the  Public  Snectrum:  What  does  the  Public  think  Public  Interest 
 Oblieations  should  be? 
   438  U.  S.  726  (1978)  (determining  primarily  whether  the  FCC  has  the  power  to  regulate  radio  broadcast  that  is 
 indecent  but  not  obscene). 


 .  .-  _.  ..-.--.  ---  .--.  -_--  ____  ,-. 
206
 to  children.  13  The  Court  reasoned  that  the  Government  was  allowed  to  regulate  broadcasting  of 
 radio  and  television  because  these  specific  forms  of  communication  have  a  uniquely  pervasive 


 presence  in  the  lives  of  all  Americans  .  .  .  [and  are]  uniquely  accessible  to  children,  even  those 
 too  young  to  read.  14  The  Government  can  regulate  and  restrict  the  speech  of  the  broadcasts  of 
 radio  and  television  based  on  these  criteria  without  running  afoul  of  the  First  Amendment  even  if 
 similar  restraints  could  not  be  applied  to  the  print  medium.  15  It  was  the  unique  characteristics  of 
 the  medium  that  was  the  basis  for  the  Courts  decision  of  allowable  speech  regulation. 
 Cable  Television  Communications 
 With  the  emergence  of  cable  television,  the  Court  again  employed  a  medium-  specific 
 analysis,  reiterating  its  intent  to  apply  different  standards  of  First  Amendment  protection  to  new 
 forms  of  communication  based  on  their  unique  characteristics.  l6 
 Although  the  Supreme  Court  has  not  adopted  a  clear,  unequivocal  standard  in  which  to 
 measure  the  required  First  Amendment  protection  afforded  to  cable  broadcasts,  federal  courts 
 have  consistently  held  that  cable  deserves  a  level  of  protection  greater  than  that  granted  to 
 broadcast  communications.  7  The  reason  behind  the  greater  protection  for  cable  over  broadcast 
 communications  is  the  fimdamental  technological  differences  between  the  two  mediums.  The 
 main  difference  focused  on  by  the  Court  was  that  cable  communications  do  not  suffer  from 
 spectrum  scarcity  as  do  television  broadcasts.  Since  there  exists  only  a  limited  number  of 


   [  O]  f  all  forms  of  communication,  it  is  broadcasting  that  has  received  the  most  limited  First  Amendment 
 protection.  Irl,  at  748. 
 I3  u  at  748-  49. 
 I4  u 
   See  id.  at  748  (comparing  Red  Lion,  395  U.  S.  367,  which  forbids  government  from  forcing  newspaper  to  print 
 replies  of  those  whom  they  criticize  ,  with  Miami  Herald  Publg  Co.  v.  Tomillo,  418  U.  S.  241  (1974),  which  forces 
 broadcasters  to  give  free  time  to  victims  of  their  criticism). 
 I6  See  Los  Anaeles  v.  Preferred  Communications.  Inc.,  476  U.  S.  488,494-  95  (1986)  (indirectly  reafftig  support 
 for  different  standards  for  different  media,  but  not  deciding  specifically  the  appropriate  standard  for  cable 
 broadcasts,  which  were  viewed  as  being  roughly  analogous  both  to  newspapers) 
   See  Turner  Broad.  Svst..  Inc.  v.  FCC,  5  12  U.  S.  622  (1994). 
   ZII,  at  637-  39. 
207
 broadcast  frequencies,  unlike  the  virtually  unlimited  cable  opportunities,  the  Government  and  the 
 public  have  a  greater  interest  in  regulating  the  use  of  those  resources.  Since  cable 
 communications  differed  on  that  factor  the  Court  regarded  the  medium  as  deserving  the 
 constitutional  protection  nearing  or  equaling  that  of  the  print  media.  Only  with  broadcast 
 communications  did  the  Court  find  that  the  unique  characteristics,  namely  its  pervasiveness  and 
 accessibility  to  children,  justified  granting  a  lower  level  of  protection. 
 Digital  Television 
 With  the  transition  from  analog  to  digital  television  (DTV)  the  debate  on  regulations  and 
 obligations  are  once  again  renewed.  Presumptively  DTV  will  offer  new  opportunities  and 
 endless  possibilities  in  furthering  not  only  entertainment  concerns  but  could  serve  as  an 
 important  cornerstone  in  public  interest  duty.  Yet,  DTV  does  not  exhibit  the  necessary 
 characteristics  that  would  justify  Government  intrusion  and  speech  inhibition.  DTV  does  not 
 exhibit  the  unique  characteristics  justifying  a  lower  level  of  protection,  namely  it  is  not  readily 
 available  and  accessible  to  the  vast  populate.  So  few  people  have  the  expensive  television  sets 
 needed  for  watching  digital  television.  20  During  the  transition  from  analog  to  digital 
 transmissions  the  electronic  industry  has  tried  to  digitize  the  American  household.  However,  this 
 is  not  economically  feasible  to  all  citizens.  Sony  has  lead  the  industry  in  its  introduction  of  its 
 flat  display  Trinitron  tube,  a  high-  resolution  flat  picture  display  compatible  for  both  the  analog 
 and  digital  spectrum.  The  costs  range  from  $449.99  for  a  twenty-  inch  screen  to  $2299.00  for  a 
 thirty-  six  inch  screen.  22  Such  staggering  expense  makes  digital  television  distinguishable  from 


 I9  See  id.  at  639.  See  also  Denver  Area  Educ.  Telecomm.  Consortium.  Inc.  v.  FCC,  116  S.  Ct.  2374,2385  (1996)  (characterizing  standard  of  review  in  Turner  as  heightened  scrutiny). 
 I0  Reuters,  Cable  e;  roup  ooooses  DTV  rules,  November  9,  1998,  http://  news.  cnet.  cominew/  O-  1005-  200- 
 335127.  html?  st.  ne.  fd.  mdh 
   http:  lJwww.  sel.  sony.  comiSELlconsumer/  wega/  products/  index.  html 
 22  d. 


 __...  .I  .__...  ..-  .,-  .--1  --.1  -----  -.- 
208
 television  broadcasts  and  cable  communications.  This  cost  characteristic  translates  into  an 
 availability  and  accessibility  issue. 
 With  digital  television,  at  least  currently,  not  being  uniquely  pervasive  presence  in  the 


 lives  of  all  Americans  23  or  uniquely  accessible  to  children,  even  those  too  young  to  read*  it 
 should  be  afforded  a  higher  level  of  speech  protection,  even  more  than  that  allowed  of  cable 
 communications.  Content-  based  regulations,  restrictions,  or  obligations  imposed  on  digital 
 television  communications  should  only  be  justified  by  a  compelling,  legitimate  government 
 interest.  Digital  television,  by  its  inherent  characteristics,  is  due  a  heighten  level  of  First 
 Amendment  protection  and  any  regulation  thereof  should  be  evaluated  under  a  strict  scrutiny 
 analysis.  Under  this  analysis,  there  would  always  be  a  chance  that  some  expression  of  speech 
 might  run  counter  to  the  greater  interest  of  the  counter,  or  that  some  compelled  speech  would 
 further  the  collective  societal  interest,  but  those  instances  should  be  few  and  far  between.  The 
 proper  balance  should  still  lie  in  applying  a  standard  by  which  only  the  most  compelling 
 government  interests,  when  applied  using  the  least  restrictive  means  possible,  will  override  the 
 interest  in  protecting  free  speech. 
 RIPENESS  OF  DIGITAL  TELEVISION  REGULATION 
 Digital  transmission  affords  the  opportunity  and  flexibility  to  offer  high  definition 
 television  (HDTV),  several  standard  DTV  channels,  ancillary  services,  and  any  combination  of 
 them  all.  These  new  possibilities,  however,  are  still  not  fully  developed  and  only  exist  in  the 
 very  early  preliminary  stages  of  digital  technology.  If  generic,  across-  the-  board  regulations  are 


 passed  without  more  concrete  information  as  to  the  exact  details  of  digital  television,  it  is  likely 


 23  See  FCC  v.  Pacifica  Found.,  438  U.  S.  726  (1978). 
 24  z 


 8 
209
 that  they  will  be  dangerously  vague  and  clearly  unconstitutional  under  a  strict  scrutiny  analysis.  25 
 Such  inevitable  vagueness  will  result  in  an  inconsistency  among  broadcasters  that  the  Court  will 
 view  as  critical  because  it  will  be  accompanied  by  a  risk  of  a  chilling  effect  on  free  speech.  26 
 Regulation  today  of  an  uncertain  digital  era  will  also  likely  result  in  overbreadth  effects. 
 The  Court  has  emphasized  its  commitment  to  making  sure  that  statutes  and  regulations 


 accomplish  their  purposes  without  imposing  unnecessarily  greater  restrictions  of  speech.  27 
 Premature  digital  television  regulation  will  exhibit  overbreadth  in  two  ways:  in  its  infringement 
 upon  the  First  Amendment  rights  of  adults,  and  in  its  application  to  such  a  broad  spectrum  of 
 speech. 
 Digital  television  speech  restrictions  and  obligations  if  enacted  today  will  amount  to 
 bum[  ing]  the  house  to  roast  the  pig.*    Adopting  regulations  today  will  accomplish  little  more 
 than  casting  a  dark  shadow  over  free  speech  and  inhibiting  a  large  segment  of  the  digital 
 television  community.  29  It  is  anything  but  clear  as  to  what  form  these  services  will  take  in  the 
 digital  era.  With  nothing  more  than  mere  speculation  as  to  what  path  digital  television  will  take, 
 formulating  regulations  and  public  interest  obligations  is  a  premature  fix  for  problems  that  have 
 not  yet  come  to  fruition.  While  early  establishment  of  debate  and  discussion  on  this  topic  can 
 only  help  in  arriving  at  workable  solutions,  the  wiser  choice  is  to  wait.  The  actual  effects  of 
 digital  television  must  first  be  felt  so  that  any  regulation  or  forced  obligation  will  bear  some 
 plausible  relationship  to  the  actualities  of  the  service  itself,  rather  than  its  potential. 


 I5  See  Reno  v.  ACLU,  117  S.  Ct.  2329,2346  (1997). 
 26  Id-  at  2344-  45. 
 27  See  Denver  Area  Educ.  Telecomm.  Consortium,  Inc.  v.  FCC,  116  S.  Ct.  2374,2385  (1996). 
 x  See  Sable  Communications  of  Cal..  Inc.  v.  FCC,  492  U.  S.  115,  127  (1989) 


 9 
210
 CONCLUSION 
 For  the  reasons  set  forth  above,  I  oppose  any  action  imposing  on  broadcasters  additional 
 unique  regulatory  burdens  during  the  preliminary  transition  stages  from  analog  to  digital 
 communication.  I  urge  you  to  carefully  consider  the  inherent  characteristics  of  digital  television 
 when  evaluating  the  level  of  speech  protection.  Although  public  interest  concerns  and  duties  are 
 important  to  our  society,  I  advise  caution  in  pursuing  this  path  that  remains  obscured  by 
 speculation. 
 Respectfully  Submitted,  l 


 Raymond  Kyle  Williams 


   See  Reno,  117  S.  Ct.  at  2350. 
 10 
211
 Justin  R.  Martin  834  Bluff  Dr. 
 Knoxville,  Tennessee  37919 


 March  16,200O 
 Honorable  Roman  Salas 
 Office  of  the  Secretary 
 Federal  Communications  Commission 
 445  Twelfth  Street,  S.  W. 
 Suite  TW-  A325 
 Washington,  D.  C.  20554 


 RE:  MM  Docket  No.  99-  360;  FCC  99-  390 
 Dear  Mr.  Salas, 
 Please  find  enclosed  my  Comment  regarding  the  above  referenced  rulemaking.  It 
 is  my  feeling  that  the  FCCs  implementation  of  section  336  of  the  Communications  Act 
 of  1934  should  consider  current  problems  associated  with  analog  TV  broadcast  of 
 sexually  explicit  video  programming.  The  implementation  procedures  and  policies 
 governing  Digital  Television  (DTV)  during  transition  period  (MM  Docket  No.  99-  360; 
 FCC  99-  390)  must  be  evaluated  in  the  context  of  analog  TV  and  not  in  a  vacuum.  Until 
 the  technological  advances  promised  by  DTV  are  uniformly  installed  in  all  American 
 homes,  an  event  which  is  only  projected  to  occur,  DTV  broadcasting  regulations  will 
 occupy  a  unique  position  in  the  fabric  of  our  society. 


 It  is  vitally  important  that  DTV  broadcaster  recognize  and  respond  to  the  publics 
 interest,  convenience,  and  necessity  during  the  transition  period.  The  rulemaking 
 notice  that  you  have  issued  concerning  section  336  noted  that  the  Acts  central  policys 
 provides  that  DTV  broadcasters  consider  the  public  interest  of  the  license  community  to 
 which  they  broadcast.  DTV  broadcast  regulations  should  confront  the  concerns  raised 
 by  signal  bleed  of  sexually  explicit  video  programming  because  DTV  and  analog  TV 
 simulcasts  will  overlap  for  some  time  to  come. 


 The  transition  from  analog  to  digital  TV  is  optimistically  set  for  completion  in 
 2006-  07.  However,  it  is  contemplated  that  some,  if  not  many  viewers,  will  continue  to 
 receive  analog  broadcasts  even  in  2007  and  beyond.  In  fact,  the  Commission  itself  has 
 provided  that  broadcasters  will  retain  analog  broadcast  rights  in  areas  where  less  that 
 85%  of  the  viewers  receive  digital  television. 


 Digital  TV  will  doubtlessly  one  day  extinguish  the  controversy  and  litigation  over 
 signal  bleed  of  sexually  explicit  programming.  Yet  in  the  meanwhile,  common  sense 
 dictates  that  DTV  broadcasters  should  not  escape  their  duty  to  benefit  the  publics 
212
 interests  just  because  signal  bleed  is  projected  to  cease  causing  problems  in  the  future.  Specifically,  analog  and  DTV  simulcasters  should  be  barred  from  relying  on  DTV  to 
 exculpate  them  from  the  substantial  threat  to  parental  autonomy  caused  by  signal  bleed. 
 Instead,  DTV  broadcasters  should  at  least  be  required  to  act  without  haste  to  correct  the 
 problems  associated  with  partially  scrambled  signals  viewed  by  children  and  adolescents 
 by  informing  parents  of  the  existence  and  severity  of  signal  bleed.  DTV  broadcasters 
 could  provide  adequate  notice  in  the  monthly  billing  statements  received  by  cable 
 subscribers,  not  to  mention  public  access  TV  channels,  the  intemet  and  public  files. 


 The  signal  bleed  issue  is  hotly  contested,  with  both  the  Judiciary  and  Congress 
 considering  cases  and  statutory  reformation  respectively.  But  regardless  of  their 
 decisions,  the  Commission  should  decrease  the  potential  for  harm  from  signal  bleed  to 
 children  by  requiring  DTV  and  analog  TV  broadcasters  to  serve  notice  of  the  phenomena 
 to  all  cable  subscribers  To  further  its  goal  of  promoting  the  common  good  of  the  public 
 interest,  the  Commission  should  require  notice  from  adult  oriented  simulcasters  to 
 discontinue  to  the  ongoing  threat  to  a  parents  constitutional  right  to  raise  their  children 
 as  they  see  fit.  This  issue  deserves  resolution  because  satellite  and  digital  TV  offer  only 
 the  hope,  but  not  the  promise  of  resolving  all  of  the  problems  with  signal  bleed. 


 Sincerely, 
 Justin  R.  Martin 


 2 
213
 BEFORE  THE  FEDERAL  COMMUNICATIONS  COMMISSION 
 COMMENTS  OF  JUSTIN  MARTIN 
 REGARDING  PUBLIC  INTEREST  OBLIGATIGNS 
 OF  TELEVISION  BROADCAST  LICENSES 


 INTRODUCTIONANDBACKGROUND 
 Section  336  (d)  of  the  Communications  Act  of  1934  plainly  states  that  a  television 
 licensee  shall  establish  that  all  of  its  program  services  on  the  existing  or  advanced  spectrum  are 
 in  the  public  interest.  In  the  twilight  of  the  analog  TV  era,  a  recent  flurry  of  activity  amongst 
 the  Judicial  and  Congressional  branches  of  government  established  that  the  issues  created  by 
 analog  TV  broadcasting  will  continue  to  be  of  relevant  concern  in  the  21  century.  Through  the 
 instant  rulemaking  the  FCC  has  the  unusual  opportunity  to  create  a  policy  equally  binding  in 
 force  and  effect  on  both  analog  and  DTV  broadcasters.  Thus,  the  FCCs  rulemaking 
 construction  of  section  336  should  address  the  residual  problems  embedded  within  analog  TV 
 when  it  issues  its  DTV  regulations. 
 By  addressing  the  public  interest  responsibilities  of  both  DTV  and  analog  TV 
 broadcasters,  the  FCC  could  provide  a  flexible  policy  accountable  for  both  types  of  sexually 
 explicit  analog  broadcasts  through  the  transition  period  and  beyond.  At  the  same  time,  the  FCC 
 will  institute  a  policy  malleable  enough  to  account  for  unknown  future  problems,  e.  g., 


 communities  that  receive  DTV  transmissions  after  2007  or  viewing  areas  that  never  receive  DTV 
 broadcasts.  Finally,  this  rulemaking  procedure  provides  for  the  future  of  DTV  by  ensuring  that 
 the  transition  period  accounts  for  future  technological  advances,  e.  g.,  satellite  intercept  devices 
214
 or  DTV  de-  scramblers,  which  could  resurrect  the  current  problems  associated  with  analog  TV 
 broadcasts  of  sexually  explicit  programming. 
 DISCUSSION 
 Before  I  illustrate  section  561  of  the  1996  Communications  Decency  Acts  role  (hereafter 
 the  Telecommunications  Act)  in  the  FCCs  implementation  of  section  336  of  the 
 Communications  Act  of  1934,  it  is  helpful  to  first  examine  section  561  itself.  Section  561 
 currently  governs  the  standards  of  analog  transmission  of  sexually  explicit  audiovisual 
 broadcasts.  Section  56  1  (a)  of  the  Telecommunications  Act  requires  all  multi-  signal  video 
 programming  distributors  to  scramble  sexually  explicit  adult  programming  or  other 
 programming  that  is  indecent  on  any  channel  of  its  service  primarily  dedicated  to  sexually- 
 oriented  programming.  47  U.  S.  C.  3  561  (a)  (1996).  Section  561(  b)  of  the  Act  required  that 
 multi-  signal  or  multi-  channel  operators  (MSOs)  who  fail  to  comply  with  section  561(  a)  shall  not 
 provide  such  programming  during  the  hours  of  the  day  when  .  .  .  a  significant  number  of 
 children  are  likely  to  view  it.  47  U.  S.  C.  A.  6  561(  b)  (1996).  The  practice  instituted  in  9  561(  b) 
 is  commonly  known  as  time  channeling.    The  Federal  Communications  Commission  set  that 
 period  between  10:  00  p.  m.  to  6:  00  a.  m.  2  Over  the  past  three  years,  the  federal  courts  decided 
 that  section  56  1  creates  an  unconstitutional  limitation  on  the  free  speech  rights  of  MSOs. 
 Plavbov  Entertainment  Corn.,  Inc.  v.  United  States,  918  F.  Supp.  813  (D.  Del.  Mar.  7, 
 1996)(  Plavbov  I)  and  Playboy  Entertainment  Corn.,  Inc.  v.  United  States,  30  F.  Supp.  2d  702  (D. 
 Del.  Dec.  28,  1998)(  Plavbov  II).  The  Supreme  Court  affirmed  Plavbov  II  without  opinion.  3 
 However,  the  Court  also  granted  a  writ  of  certiorari  to  decide  the  constitutional  issues  contained 


   See  Playboy  II  at  777. 
 3  See  520  U.  S.  1141  (1996). 
 2 


 I_-- 
215
 in  Plavbov  I  and  Plavbov  II  once  and  for  all  in  the  Spring  2000  term.  United  States  v.  Plavbov 
 Entertainment  Group,  Inc.,  119  S.  Ct.  2365  (1999).  In  addition,  the  106h  Congress  itself  is 


 currently  considering  amending  section  561  of  the  Act.  4  This  relatively  lively  spurt  of  energy 
 emitted  by  Congress  and  the  Judiciary  suggests  that  the  signal  bleed  issue  is  alive  and  breathing 
 both  now  and  for  the  forseeable  future. 


 In  implementing  the  purpose  of  the  Federal  Communications  Commission  Act  and  the 
 subsequent  statutory  laws  written  by  Congress  governing  analog  television  broadcasts  under 
 Title  47,  it  is  incumbent  upon  the  FCC  to  consider  Congress  goals  for  DTV  in  the  context  of 
 residual  analog  TV  problems  like  signal  bleed.  Congress  section  336  instruction  to  the 
 Commission  requiring  that  DTV  broadcasters  to  serve  the  public  interest,  convenience  and 
 necessity  cannot  be  fulfilled  without  accounting  for  the  problems  engendered  by  analog 
 transmission  of  sexually  explicit  adult  video  programming  because  analog  broadcasting  will 
 continue  to  be  broadcast  until  at  least  until  2007. 
 The  current  flurry  of  activity  in  Congress  regarding  communications  decency  and  signal 
 bleed  and  suggests  that  the  current  regulations  fail  to  enact  Congress  intent.  Of  course  it  is 
 possible  that  Congress  realized  it  imposed  a  more  restrictive  means  necessary  when  it  passed 
 section  561  than  the  governments  regulatory  interest  permitted.  Indeed,  the  Judiciarys  interest 
 in  the  constitutionality  of  section  561  may  render  Congress  amendment  efforts  moot.  At  the 
 same  time,  Congress  clearly  enunciated  its  viewpoint  that  broadcasters  who  transmit  partially 
 unscrambled  or  wholly  unscrambled  sexually  explicit  video  programming  fail  to  serve  the 
 publics  interests  or  needs.  Therefore,  the  FCC  should  heed  section  561  when  considering  the 


 4  See  1999  H.  R.  3085,  106th  CONGRESS,  1st  Session  (Oct.  14,  1999)  (Providing  discretionary 
 spending  offsets  for  fiscal  year  2000),  and  1999  H.  R.  2834,  106th  CONGRESS,  1st  Session 
 (Sept.  9,  1999)  (Amending  the  Communications  Act  of  1934  to  clarify  State  and  local  authority 


 3 
216
 manner  and  method  by  which  section  336  shall  be  given  effect.  Nothing  associated  with  the 
 impending  controversy  over  section  561  suggests  that  the  FCCs  legislative  mandate  under 


 section  336  is  in  jeopardy,  or,  even  more  to  the  point,  rendered  moot.  The  enactment  of  section 
 561  makes  it  clear  that  Congress  and  its  constituents  fear  the  consequences  of  children  viewing 
 unregulated  transmission  of  sexually  explicit  adult  video  programming.  Therefore,  the 
 Commission  must  implement  section  336s  intent,  while  keeping  the  implications  of  section  561 
 in  mind  when  implementing  section  336  in  the  theater  of  DTV.  In  fact,  the  inherent  authority  of 
 section  336  clarifies  that  the  Commission  must  regulate  all  broadcasting  in  the  name  of  the 
 public  interest,  which  thereby  requires  that  the  conduct  of  both  DTV  and  analog  broadcasters  of 
 sexually  explicit  programming  submit  to  the  same  standard.  The  key,  therefore,  is  doing  so  in 
 such  a  manner  that  the  Commissions  actions  withstand  even  the  strictest  scrutiny  by  the 
 judiciary.  Luckily,  this  goal  is  possible. 
 ANALOGSOLUTIONS 
 Even  the  judicial  decisions  interpreting  section  561  admitted  that  would  bepossible  for 
 the  FCC  to  enforce  section  336  in  such  a  way  that  section  56  1  s  overall  spirit  is  incorporated  in  a 
 narrowly  tailored  and  least  restrictive  means.  The  Playboy  II  court  examined  three  ways  by 
 which  adult  oriented  transmissions  can  be  completely  scrambled.    Of  the  three  methods, 
 lockboxes  and  negative  traps  proved  to  be  overly  burdensome  because  of  the  associated  ecnomic 
 costs.  However,  the  Playboy  II  court  indicated  that  the  third  alternative,  positive  traps,  could  be 
 both  effective  and  economical.  But  Playboy  II  dismissed  the  latter  alternative  as  overly 


 to  regulate  the  placement,  construction,  and  modification  of  broadcast  transmission  and 
 telecommunications  facilities). 


 5  Playboy  II  at  780 


 4 
217
 burdensome  to  adult  broadcasters  because  it  constrained  the  impulse  nature  of  purchasing  adult 
 programming  such  that  lost  revenues  could  not  be  recouped. 


 But  heres  how  we  could  prevent  children  and  immature  minors  from  receiving  signal 
 bleed  during  the  transition  from  analog  to  digital  TV.  The  proper  analysis  should  ask  two 
 questions.  First,  what  are  the  needs  and  interests  of  Playboys  community  of  license,  i.  e.,  what 
 obligation,  if  any,  does  Playboy  have  to  its  subscribers  considering  the  nature  of  its  programming 
 content.  In  this  case,  Playboys  obligation  is  obviously  very  low  because  naked  frolicking  and 
 orgasms  are  exactly  the  reason  that  viewers  pay  to  watch  the  Playboy  channel.  If  their  children 
 see  explicit  sexual  acts  performed,  it  is  because  those  viewers  have  assumed  the  risk  that  a 
 subscription  to  Playboy  might  reveal  the  vagaries  of  sexual  intercourse  to  their  children  before 
 the  public  schools,  Catholic  nuns  they  themselves  intended. 
 The  second  question  asks,  therefore,  what  needs  and  interests  comprise  the  public  interest 
 of  the  community  receiving  partially  scrambled  television  feeds  from  Playboy?  The  community 
 of  license  in  this  sense  is  different  from  the  community  of  paying  Playboy  subscribers  because  it 
 includes  the  vast  public  community  of  cable  subscribers  at  large.  And  it  is  this  majority  of  cable 
 viewers  that  are  affected  by  signal  bleed.  In  the  latter  instance,  viewers  unaware  of  signal  bleed 
 should  be  educated  about  it,  and,  moreover,  all  cable  subscribers  should  have  the  option  of 
 blocking  signal  bleeds  if  it  is  economically  feasible.  Signal  bleeding  should  not  act  as  free 
 advertising  or  act  a  teaser  for  the  Playboy  channel.  If  regulation  of  signal  bleed  is  ultimately 
 adjudicated  by  the  Supreme  Court  to  be  a  impermissible  content  restriction  under  the  First 
 Amendment,  however,  Playboy  should  still  be  required  to  provide  notice  to  all  of  its  affected 
 cable  subscribers  regarding  nature  and  content  of  partial  scrambling.  This  remedy  should  be 
 born  by  both  DTV  and  analog  broadcasters  because  the  households  may  most  likely  to  subscribe 
218
 to  DTV  are  also  the  most  likely  to  own  multiple  televisions,  including  analog  televisions  that  will 
 continue  to  be  affected  by  signal  bleed. 
 The  notice  expenses  should  be  born  both  by  the  cable  operator  and  broadcasters  like 
 Playboy,  6  since  they  each  profit  from  the  considerable  publicity  gained  from  a  partially  obscured 
 signals  featuring  orgiastic  moaning.  As  the  recent  movie  American  Pie  demonstrated,  the 
 graphic  nature  of  the  acts  depicted  is  often  substantial  enough  to  provide  viewers  with 
 considerable  stimulation  even  though  the  signal  is  technically  scrambled. 
 Playboy  and  other  adult  oriented  stations  arent  in  the  same  club  as  other  premium 
 channels  like  HBO,  Showtime  and  Cinemax.  Children  and  adolescents,  whose  attentions  spans 
 are  ever  on  the  downturn,  simply  arent  willing  to  listen  to  a  movie  smeared  by  squiggly  lines 
 and  random  half  pictures  in  the  hope  of  a  partially  exposed  breast  or  a  few  muttered  moans  and 
 groans  of  the  course  of  a  two  hour  movie  with  real  acting  (if  the  acting  between  sex  xcenes  were 
 better,  then  they  might).  However,  when  partial  audio  and  video  feeds  provide  constant  sexual 
 feedback  to  the  viewer,  the  pull  of  signal  bleed  may  be  strong  enough  to  captivate  a  young 
 audience.  Whether  we  want  Playboy  to  educate  children  about  sex,  or  whether  we  would  prefer 
 that  our  public  schools  do  so  is  an  important  matter  because  parents  are  deprived  of  due  process 
 in  the  former  setting.  In  the  case  of  signal  bleed,  parents  of  children  and  teenagers,  who  view 
 Playboys  partially  bled  signal,  are  bereft  of  the  notice  and  opportunity  to  be  heard  regarding 
 their  First  Amendment  rights  to  oversee  the  development  of  their  children  into  adults.  See 
 Wisconsin  v.  Yoder,  406  U.  S.  205  (1972).  In  contrast,  parent  teachers  association  board 
 meetings,  school  referendums  and  formal  requirements  imposed  on  County  Boards  of  Education 


 6  Other  adult  oriented  channels  include  AdulTVision  (owned  by  the  Playboy  Entertainment 
 Group),  Adam  &  Eve,  and  Spice,  (the  latter  two  are  both  owned  by  Graff  Pay-  Per-  View). 


 6 


 _-.-.-_.  .-._  -_  __  .,.~--..  l_.-  ._-,-.-.-.-  I___.-~-  -- 
219
 provide  substantial  procedural  safeguards  concerning  the  substantive  issues  concerning  sexual 
 education  that  the  Playboy  channel  lacks. 
 The  Playboy  channel  stands  as  an  end  run  around  Yoders  constitutionally  approved 
 process,  which  impliedly  violates  the  restriction  placed  on  each  and  every  broadcaster  to 
 consider  the  publics  interest  and  the  fundamental  needs  and  interests  of  its  community  of 


 license.  Recipients  of  signal  bleed  are  the  unwilling  prisoners  of  the  broadcaster  and  should  at 
 least  receive  notice,  if  not  the  choice  to  black  out  such  signals  where  economically  feasible. 
 Thus,  notices  informing  subscribers  of  signal  bleed  and  its  effects  in  sexually  explicit 
 programming  should  accompany  each  billing  statement  submitted  by  ones  cable  company.  In 
 addition,  Playboy  should  register  with  websites  that  distribute  public  interest  information  to 
 interested  parents  and  cable  subscribers.  These  notices  should  also  comprise  part  of  the  FCCs 
 public  file  for  Playboys  commercial  TV  broadcast  account  and  all  viewers  should  have  access  to 
 this  information.  Finally,  notice  of  sexually  explicit  signal  bleed  should  be  prominently 
 displayed  and  easily  located  on  channels  that  display  public  information.  If  Playboy  ever  begins 
 to  offer  intemet  access  through  its  DTV  channel,  the  notices  should  be  accordingly  modified. 
 The  costs  and  burdens  associated  with  these  public  interest  obligations  under  section  336  may 
 even  encourage  Playboy  to  fully  scramble  its  channels,  which  it  has  argued  would  constitute  and 
 excessive  cost  but  which  in  reality  might  just  be  smokescreen. 
 A.  CONSTITUTIONALCONCERNS 
 Noticing  all  analog  and  DTV  viewers  of  the  possibility  of  signal  bleed  is  not  an 
 infringement  of  First  Amendment  content  in  programming.  Requiring  Playboy  and  its  brethren 
 to  serve  the  public  interest  by  informing  the  cable  subscription  community  does  not  ask  it  to 
 change  or  alter  its  content,  thereby  causing  a  putative  First  Amendment  free  speech  intrusion. 


 7 
 ,,  __-__._._  _-_._  ----.--.---  I-  ____  -..- 
220
 Instead,  Playboy  is  merely  asked  to  inform  cable  subscribers  and  satellite  viewers  of  the  nature 
 of  its  programming  and  inform  its  users  that  any  concerns  over  signal  bleed  can  be  remedied  by 


 blacking  out  the  signal  in  its  entirety.  Even  if  requiring  notice  and  information  from  Playboy  to 
 its  viewers  is  found  to  be  an  intrusion,  this  remedy  is  narrowly  tailored  and  is  the  least  restrictive 
 means  possible  of  enforcing  Congressional  mandate  that  DTV  broadcasters  serve  the  needs  and 
 interest  of  the  public.  Any  substantive  deprivation  of  rights  are  therefore  de  minimus. 
 B.  ANALOG  TV  REMAINSIMPORTANTINSPITEOFSATELLITEBROADCASTINGAND  DTV 
 The  development  and  implementation  of  new  technologies  fails  to  sufficiently  ensure  that 
 the  phenomenon  of  signal  bleed  will  ever  become  totally  non-  existent.  Direct  broadcast  satellite 
 technology7  and  DTV  promises  to  end  signal  bleed  only  to  the  extent  that  all  the  televisions 
 within  a  single  household  can  accommodate  digital  satellite  technology.  Section  561  has  not 
 been  specifically  amended  to  encompass  DTV  and  or  satellites,  but  regulation  of  these  forms  of 
 broadcasting  could  be  equally  well  managed  under  the  auspices  of  the  FCCs  regulation  of 
 Section  361  of  the  1934  Communications  Act.  Even  if  a  household  receives  only  DTV  or 
 satellite  TV  broadcasts,  such  subscribers  may  be  indirectly  impacted  by  their  childrens  friends 
 who  visit  the  same  sexually  explicit  programming  at  their  friends  home(  s). 
 Digital  cable  service,  is  also  an  advanced  technology  eliminates  signal  bleed.  The 
 Plavbov  II  court  noted  that  approximately  2  million  households  already  receive  such  service,  and 
 that  MSOs  will  most  likely  make  the  premium  channels  the  first  channels  they  switch  over  to 
 digital  cable.  The  upgrade  from  traditional  coaxial  cable  to  hybrid  fiber-  optic  coaxial  cable  is 


 estimated  to  cost  MSOs  collectively  close  to  $25  billion,  which  is  peanuts  compared  to  the 


   Direct  broadcast  satellite  systems  include  such  services  as  DirecTV,  Primestar,  and  EchoStar  Communications.  However,  DirecTV,  DISH  Network,  and  Primestar  all  have  Playboy 
 Television  available  24  hours  per  day,  in  addition  to  pay-  per-  view  services  and  24  hour 
 availability. 
221
 maximum  estimated  cost  of  complying  with  section  561  (one  billion  max).  Forcing  DTV  and 
 analog  TV  MSOs  to  comply  with  the  spirit  of  section  561  would  not  result  in  throwing  money 
 away,  even  during  the  transition  period.  It  will  take  at  least  six  to  seven  years  to  complete  the 
 transition,  during  which  time  millions  of  children  will  be  bombarded  by  the  unnecessary  and 
 unwanted  invasion  of  adult  themed  signal  bleed.  Any  delays  in  construction  of  the  DTV  web 
 will  extend  the  expected  completion  date  well  beyond  the  contemplated  date  of  2006-  07.  In 
 addition,  signal  bleed  will  continue  to  plague  areas  that  are  slow  and/  or  resistant  to  the  DTV 
 changeover.  Finally,  the  Commission  has  already  decided  that  analog  TV  will  continue  to  be 
 broadcast  wherever  DTV  is  received  by  fewer  than  85%  of  the  households.  There  is  a  dramatic 
 contrast  between  requiring  MSOs  to  furnish  notice  to  parents  about  the  nature  and  effect  of 
 sexually  explicit  signal  bleed  and  permitting  children  or  immature  minors  to  watch  sexually 
 explicit  adult  programming  without  the  knowledge  or  approval  of  parents  whose  First 
 Amendment  rights  have  been  deprived. 
 CONCLUSION 
 Ultimately,  section  561  may  be  found  unconstitutional.  Yet  the  courts  in  Playboy  I  and  Plavbov 
 11  found  that  complete  scrambling  could  be  achieved  for  a  mere  fraction  of  the  costs  of 
 implementing  DTV  or  satellite  TV.  Thus,  at  the  very  least,  analog  TV  and  DTV  MSOs  should 
 notice  parents  about  the  nature  and  occurrence  of  signal  bleed.  The  costs  of  noticing  parents  as 
 to  the  nature  and  effect  of  signal  bleed  are  cheap  and  the  intrusion  is  de  minimus.  The  mandate 
 of  section  336  requires  that  the  FCC  respond  by  subjecting  both  DTV  and  analog  TV 
 broadcasters  to  the  same  standard  of  disclosure  in  order  to  meet  the  publics  interest  as  opposed 
 to  profits  and  fiscal  bottom  lines.  We  should  not  limit  notice  requirements  affecting  subscribers 
 subjected  to  signal  bleed  to  the  Playboy  channel  alone,  but  should  apply  it  to  all  premium 


 9 
 --  _.  _._._  -  __._..  -  l_.  ._-...---  -_  I--  .  . 
222
 channels  that  air  sexually  explicit  programs  during  daytime  and  early  evening  hours.  Since  at 
 least  four  channels  program  virtually  100%  sexually  explicit  adult  programming,  8  it  is  the  signal 


 bleed  from  channels  like  these  that  section  561  was  designed  to  block  but  which  section  361  can 
 remedy. 


 *  See  note  6  infra  and  accompanying  text. 
 10 
223
 Jama  McMurray 
 March  17,200O 
 Administrative  Law 


 BEFORE  THE  FEDERAL 
 COMMUNICATIONS  COMMISSION 


 COMMENTS  ON  THE  PUBLIC 
 INTEREST  OBLIGATIONS  OF 
 TELEVISION  BROADCASTING  LICENSEES 


 l(  lgtroductiou 
 On  the  26*  of  January  2000,  the  Federal  Communications  Commission  published  its 
 notice  of  proposed  rulemaking  for  comments  on  how  broadcasters  can  best  serve  the  public 
 interest  as  the  switch  to  digital  transmittion  technology  is  made.  Notice  of  Proposed  Rulemaking, 
 65  Fed.  Reg.  4211  (Jan.  26,200O).  The  Commissions  document  is  based  on  recommendations 
 and  proposals  from  such  groups/  persons  as  the  Presidents  Advisory  Committee  on  the  Public 
 Interest  Obligations  of  Digital  Television  Broadcasters,  People  for  Better  TV,  and  Vice  President 
 Al  Gore.  The  Commission  is  now  requesting  ideas  from  the  general  public  and  broadcasters  on 
 the  best  way  to  maintain  a  public  interest  standard  during  the  transition  to  digital  television. 
 My  name  is  Jama  McMurray.  I  am  a  third  year  law  student  at  the  University  of  Tennessee 
 College  of  Law.  These  comments  are  based  on  a  requirement  of  an  administrative  law  class 
 taught  by  Professor  Glenn  Reynolds.  I  will  attempt  to  comment  on  the  issue  of  Enhancing 
 Access  to  the  Media  in  areas  such  as  disability  and  diversity. 
224
 Television  is  by  far  the  means  by  which  most  Americans  obtain  news,  information  and 
 entertainment.  Even  those  who  do  not  yet  own  a  computer  usually  own  at  least  one  television. 
 Broadcasters  have  a  duty  of  controlling  what  is  aired  on  these  stations  and  the  Federal 
 Communications  Commission  has  been  given  the  authority  to  enforce  the  public  interest 
 requirement.  The  only  way  the  Federal  Communications  Commission  can  issue,  renew,  or 
 approve  a  transfer  of  a  license  is  if  broadcasters  comply  with  an  affirmative  public  interest 
 program.  With  the  arrival  of  digital  television,  public  interest  obligations  have  been  revisited. 
 Although  the  Commission  may  adopt  new  public  interest  rules,  some  argue  that  these  rules 
 should  change  to  fit  the  opportunities  provided  by  digital  channels,  while  others  argue  that  there 
 is  no  need  to  change  the  rules. 
 In  1998,  the  Presidents  Advisory  Committee  on  the  Public  Interest  Obligation  of  Digital 
 Television  Broadcasters  provided  ten  separate  recommendations  on  public  interest  obligations 
 that  digital  television  broadasters  should  assume.  In  1999,  People  for  Better  TV  requested  that 
 the  Commission  have  a  rulemaking  proceeding  to  determine  what  the  obligations  are.  Still  others 
 are  dealing  with  issues  that  are  not  directly  related  but  have  a  connetion  with  digital  television. 


 The  Commission  seeks  comments  on  how  broadcasters  can  make  a  smooth  transition  to 
 digital  television  while  still  serving  the  public  interest.  Areas  of  interest  include  challenges 
 unique  to  the  digital  era,  how  to  respond  to  the  communities,  and  enhancing  access  to  the  media. 
 With  the  introduction  of  digital  television  the  original  rules  should  be  amended  to  change  so  that 
 the  public  can  be  given  the  newest  and  best  technology  out  there.  Also  the  fields  related  to 
 digital  television  should  open  to  those  who  before  have  been  limited  in  their  access  to  the 
 ecomonic  opprotunities  to  the  media. 
225
 Discussion_ 
 While  not  a  direct  result  of  the  transition  to  digital  television,  a  long  standing  goal  of  the 
 Federal  Communication  Commission  has  always  been  to  broaden  access  to  the  media  to  include 
 everyone  reqardless  of  race,  gender,  ethnicity  or  disability. 


 Disability 
 Many  years  ago  if  a  person  were  to  have  a  broken  leg  or  be  confined  to  a  bedfast  for  a 
 period  of  time,  he  would  only  be  able  to  watch  whatever  channel  was  on  or  no  television  unless 
 there  were  someone  there  to  change  the  channel  or  turn  it  on  for  him.  Then  came  the  remote 
 control  which  enabled  him  to  have  access  to  the  power  and  all  the  channels  fi-  om  bed  or  a  chair 
 with  the  push  of  a  button.  Assuming,  that  is,  that  he  had  working  batteries. 
 How  much  more  distressing  it  must  be  for  those  with  hearing  or  vision  imparements. 
 Every  effort  should  be  made  to  provide  these  people  with  the  maximum  access  available  for  them 
 to  enjoy  television  programing  as  any  other  citizen  may.  A  few  years  ago,  businesses,  schools, 
 state  parks,  etc.  were  required  to  provide  access  to  our  handicapped  persons.  There  are  many 
 severly  handicapped  and  older  citizens  that  may  not  be  able  to  take  advantage  of  these 
 improvements  because  they  are  confined  to  their  homes.  Why  should  thearea  providing  the  most 
 information  to  Americans  be  exempt  from  more  accessibility? 


 Closed  captioning  has  brought  some  access  to  the  hearing  impared  over  the  past  few 
 years.  However,  not  every  type  of  programming  is  included.  Several  areas  have  been  exempt 


 3 


 _..  -.-.  .._.  ~  .I-  l_--.__-  ..__  _.  .  .-..  -  ..-  .-  I  .__.-. 
226
 from  the  requirements.  Among  those  exemptions  are:  advertisements  of  less  than  five  minutes, 
 non  English  programming,  promotional  and  public  service  announcements,  late  night 
 programming,  and  political  programming.    Not  every  average  citizen  is  interested  in  the  same 
 type  of  programming  or  watches  television  at  the  same  time.  Why  should  the  disabled  receive 
 only  a  particular  base  of  programming.  Do  we  assume  that  all  handicapped  persons  go  to  bed  at 
 9:  00  PM?  Are  all  handicapped  persons  English  speaking?  The  Commission  has  called  for  the 
 gradual  expansion  of  PSAs  and  political  programming.  This  is  a  step  forward  but  it  appears  that 
 there  should  be  an  expansion  into  more  of  a  variety  of  different  types  of  programs  and  timing  for 
 the  shows  that  are  closed  captioned.  While  funds  and  resources  may  not  be  available  to 
 immediately  provide  handicap  access  to  every  program,  there  should  at  least  be  an  effort  made  to 
 provide  at  least  some  access  to  all  types. 


 The  1996  Act  requires  new  programming  to  be  closed  captioned  by  2006  in  phases. 
 Older  library*  programs  have  a  ten  year  set  limit.  The  Federal  Communications  Commission 
 is  to  measure  compliance  with  the  rules  quarterly. 
 However,  there  may  be  special  exemptions  given  in  certain  instances.  New  networks 
 have  up  to  four  years  aRer  launching  to  provide  closed  captioning.  Those  broadcasters  with 
 gross  revenues  of  less  than  three  million  qualigy  for  exemptions  and  the  larger  entities  do  not 
 have  to  exceed  two  percent  of  revenues  from  the  previous  year. 


   498  PLUPat  73,  Developments  in  Communications  Law,  Richard  E.  Wiley, 
 November  1997. 


 2  498  PLI/  Pat  73.  New  programming  is  any  that  was  published  or  exhibited  after  January 
 1,  1998.  Library  programming  is  any  published  or  exhibited  before  that  date. 


 4 
227
 With  the  coming  of  digital  television,  video  description  will  be  more  easily  available  and 
 should  be  required  to  have  a  phase  in  and  compliane  schedule  similar  to  that  of  closed  captioning. 
 The  Commission  shoudl  impose  different  requirements  on  digital  television  broadcasters  in 
 accord  with  the  advances  in  technology.  Perhaps  the  phase-  in  scheduling  should  be  revised  to  a 
 shortened  period  of  time  if  possible.  As  People  for  Better  TV  suggest,  every  effort  should  be 
 made  to  probide  expansion  of  services  to  persons  with  disabilities.  Perhaps  where  there  are 
 undue  financial  burders  on  broadcasters  a  supplimental  fund  may  be  available  and/  or  trade-  offs 
 made  in  other  areas. 


 Diversity 
 Another  goal  of  broadcasting  is  that  of  diversity  of  viewpoint,  ownership,  and 
 employment.  It  is  unlawful  for  an  employer  to  refuse  to  hire,  discharge,  or  discriminate  against 
 any  individual  because  of  race,  color,  religion,  sex,  or  national  origin.   
 People  for  better  TV  has  suggested  that  broadcasters  for  digital  television  exploit  digital 
 technology  to  reflect  the  diversity  of  their  communities.  The  changes  brought  by  digital 
 television  also  bring  more  employment  opportunities  and  opportunities  for  expanded  diversity  in 
 programming.  So  long  as  the  minorities  and  women  are  adequately  trained  to  perform  the  jobs, 
 the  creative  business  arrangements,  inclucing  channel-  leasing  and  partnerships,  are  a  good  start 
 to  providing  a  more  diverse  environment  within  broadcasting.  Congress  has  found  that  dispite 
 a  dramatically  growing  presence  in  the  workplace,  women  and  minorities  remain 
 underrepresented  in  management  and  decision  making  positions  in  business.  The  glass  ceiling 


 3  42  U.  S.  C.  2000e-  2.  Unlawful  employment  practices. 
228
 commission  was  established  in  order  to  study  policies  to  improve  such  access.  4  The  Agency 
 Committee  has  suggested  that  broadcasters  encourage  effective  participation  by  minorities  and 
 women  in  all  areas  and  in  particular,  gaining  these  groups  access  to  more  of  the  decision-  making 
 positions  in  the  industry. 
 The  representation  of  minority  groups  in  higher  positions  should  have  a  positive  effect  on 
 programming  also.  Just  as  all  handicappped  persons  should  not  be  limited  in  the  programming 
 they  have  access  to,  nor  should  these  minority  groups.  Digital  television  will  provide  the 
 availability  of  greater  programming  capability.  Therefore,  there  should  be  no  reason  that  there 
 cannot  be  a  healthy  blend  of  programming  for  all  viewers. 
 In  this  country  we  are  lucky  that  we  have  the  right  to  have  and  express  different  views. 
 Even  though  everyones  view  may  not  be  represented  by  a  decision-  making  employee,  programs 
 and  research  groups  should  be  set  up  to  study  and  see  that  the  broadest  diversity  possible  be 
 available  in  programming.  Also  the  lines  of  communication  should  be  kept  open  with  the  public 
 and  a  system  should  be  in  place  to  make  sure  the  public  opinion  and  comments  are  recognized. 


 Although  different  in  many  aspects,  the  issues  of  diversity  and  disacility  are  similar  in  one 
 way.  Provisions  should  be  made  to  provide  both  complete  access  to  media.  The  disabled  should 
 have  means  available  where  they  can  enjoy  programming  while  minority  groups  should  have 
 access  to  employment  opportunities  and  dicision  making  over  the  programming.  The 
 advancement  of  digital  television  should  open  the  door  for  many  new  opportunities  for  all. 


 4  Glass  Ceiling  Act  of  1991,  $202(  a)(  1) 
 6 
229
 With  the  changing  of  technology  to  include  advances  such  as  digital  television,  an 
 evaluation  of  the  rules  on  public  interest  programming  and  all  other  areas  of  access  to  the  media 
 should  be  refined  to  reflect  the  advancements  in  society.  Everything  possible  should  be  done  to 
 provide  our  handicapped  and  economically  disadvantaged  citizens  the  West  access  possible  to 
 the  media  and  new  technologies. 


 7 
 --.  ~~  .-^-.._.._  _-.  ---  --  I  -  _-  -----.  1.  -. 
230
 ~~~~~~~~ 
 BEFORE  THE  FEDERAL  COMMUNICATIONS 
 COMMISSION 


 COMMENTS  OF  JILL  R.  SCHMIDTKE 
 REGARDING  MM  DOCKET  NO.  99-  360; 
 FCC  99-  390 
 PUBLIC  INTEREST  OBLIGATIONS  OF 
 TELEVISION  BROADCAST  LICENSEES 


 INTRODUCTION  AND  BACKGROUND 
 On  January  26,2000,  the  Federal  Communications  Commission  published  a 
 notice  of  proposed  rulemaking  soliciting  comment  on  how  broadcasters  can  best  serve  the 
 public  interest  as  they  transition  to  digital  transmission  technology.  The  Commission 
 acknowledged  that  television  is  a  primary  source    of  news  and  information  that  have  a 
 great  impact  on  Americans  and  in  particular  children.  As  a  third  year  law  student  and 
 mother  of  three  small  children  I  am  especially  concerned  with  the  role  the  media  plays  in 
 serving  the  public.  In  particular,  I  would  like  to  respond  to  the  Commissions  request  for 
 comment  on  the  role  of  digital  television  (DTV)  in  regards  to  childrens  programming 
 and  the  obligations  set  forth  in  the  Childrens  Television  Act  of  1990. 
 Currently  the  Federal  Communications  Commission  takes  a  limited  role  in 
 ensuring  compliance  with  the  Childrens  Television  Act  of  1990  by  non-  digital  licensees. 
 Although  the  Commission  establishes  certain  minimum  standards  that  must  be  met  it 
 does  not  extend  its  authority  to  micro-  management  of  individual  licensees.  Under  the 
 Act  a  licensee  meets  its  obligation  to  childrens  programing  when  it  has  aired  at  least 
 three  hours  per  week  of  Core  Programming  during  the  hours  of  7:  00  a.  m.  to  10:  00  p.  m., 
 limits  the  amount  of  commercials  aimed  at  children,  limits  adult  content  programming 


 -  -__-.  ,I  .  -_-.-..--.- 
 l.-  .--.-..-.--  .  ~  ___  ,.._  .,...---  -  ~. 
231
 to  appropriate  time  slots,  and  publishes  the  educational  and  informational  objectives  in 
 writing  in  the  licensees  Childrens  Television  Programming  Report.    While  1  do  not 
 advocate  an  increase  in  the  responsibility  of  individual  licensees,  1  do  urge  the  Committee 
 and  Congress  to  take  the  necessary  measures  to  ensure  that  the  current  requirements  for 
 Childrens  programming  continue  to  be  met  in  the  digital  era. 


 DISCUSSION 
 It  has  long  been  established  that  a  primary  goal  of  the  Communications  Act  of 
 1934  is  to  ensure  that  a  public  interest  is  served  by  broadcast  licensees.  A  component  of 
 this  public  service  requirement  is  that  broadcasters  serve  the  educational  and 
 informational  needs  of  children  with  programming  specifically  designed  for  that 
 purpose.*  This  view  was  reinforced  when  Congress  passed  the  Childrens  Television  Act 
 of  1990  to  ensure  broadcasters  complied  with  this  component  of  the  public  interest 
 standard. 
 In  the  digital  age  this  requirement  can  be  a  complex  and  difficult  undertaking  for 
 individual  licensees  that  broadcast  on  multiple  band  frequencies  or  multi-  cast.  As  a 
 result  it  is  unclear  whether  or  not  the  F.  C.  C.  should  demand  that  childrens  programming 
 be  provided  on  each  digital  band  that  an  individual  licensee  owns  or  whether 
 programming  on  one  band  is  sufficient  to  meet  the  requirements  of  the  Childrens 


 47  C.  F.  R.  5  73.671 
 21  6  Cardozo  Arts  &  Ent.  L.  J.  341,  *342 
232
 Television  Act  of  1990  (CTA).  I  believe  that  individual  licensees  can  meet  the 
 obligations  set  forth  in  the  CTA  by  broadcasting  childrens  programming  on  one  of  their 
 band  width  frequencies  instead  of  being  required  to  broadcast  the  requisite  three  hours  per 
 week  on  all  of  their  band  width  frequencies. 
 With  the  advent  of  cable  we  have  seen  the  success  of  tailored  programming 


 stations  such  as  ESPN,  MTV,  Lifetime,  and  Nickelodeon.  These  channels  target  a 
 specific  audience  with  a  stylized  viewing  format.  When  you  turn  on  ESPN  you  know 
 you  are  getting  sports  and  nothing  else.  You  dont  want  or  expect  anything  else.  But  in 
 the  same  turn,  if  you  are  a  parent  looking  for  quality  television  for  your  children  you 
 know  that  you  can  turn  to  Nickelodeon,  the  Disney  channel,  or  PBS  for  the  kind  of 
 educational  programming  suitable  for  children.  Channels  like  Nickelodeon  and  Disney 
 has  been  a  commercial  success  in  the  American  television  market.  It  would  probably 
 interest  many  Nickelodeon  moms  that  Nickelodeon  is  owned  and  operated  by  MTV.  It 
 is  possible  for  licensees  who  participate  in  adult  content  channels  to  also  meet  their 
 public  interest  obligation  in  the  form  of  channels  dedicated  to  children  centered  viewing. 
 I,  as  a  mother,  would  be  uncomfortable  with  my  three-  year-  old  being  encouraged  to 
 watch  MTV  through  child  friendly  programming. 
 Although  I  believe  that  the  programming  requirement  can  be  met  by  an  individual 
 licensee  broadcasting  childrens  programming  on  only  one  of  its  band  widths,  I  would 
 enforce  the  limit  on  childrens  advertising  and  the  limit  on  adult  content  programming  on 
 all  bandwidths  held  by  the  individual  licensee.  The  CTA  recognized  the 
 impressionability  of  children  when  it  set  out  the  guidelines  for  childrens  programming. 
 It  specifically  places  restrictions  on  advertising  and  content  because  children  cannot 


 .  .-  .._  ._.-.._  1  ,-.,  ._.-  -_.___  -  ..  C,,.-  I--.,  _____- 
233
 always  distinguish  the  difference  between  what  is  real  and  what  is  make-  believe.  It 
 would  be  easy  to  put  the  burden  on  parents  to  ensure  what  types  of  programming  to 
 which  their  children  are  exposed.  However,  this  assumes  that  each  channel  has  a  specific 
 format  and  allows  for  no  mixed-  format  programming.  That  is  not  reality.  The  reality  is 
 that  in  an  effort  to  reach  multiple-  target  audiences  many  stations  have  a  mixed  format. 
 Fox  is  a  perfect  example  of  a  station  that  targets  children  in  the  morning  and  adults  in  the 
 evening.  As  a  result  children  looking  for  childrens  programming  may  be  exposed  to 
 adult  programming.  They  dont  know  that  adult  programs  come  on  channel  11  but  they 
 do  know  that  Batman  does. 
 The  second  issue  I  would  like  to  address  is  the  possibility  of  allowing  licensees  to 
 provide  a  usage  fee  or  financial  donation  to  facilitate  public  service  goals.  I  am 
 uncomfortable  with  this  idea  for  the  simple  reason  that  it  sounds  like  a  bribe.  Instead  of 
 holding  licensees  responsible  for  meeting  their  public  interest  obligation  on  the  airwaves 
 they  can  simply  buy  their  way  out  of  any  type  of  programming  regulation.  While  this 
 may  enhance  the  media  viewing  opportunities  for  our  children  in  school  it  my  leave  a 
 media  viewing  void  in  our  homes.  I  am  concerned  that  the  programming  at  home  could 
 slip  to  a  marketing  extravaganza  for  producers  of  childrens  products.  If  the  only  goal 
 was  to  syphon  off  part  of  the  advertising  revenues  to  meet  the  public  interest  goal  then 
 licensees  would  be  encouraged  to  accept  more  advertising  in  the  form  of  commercials  and 
 programs  aimed  directly  at  the  childrens  market.  This  type  of  public  interest  fulfillment 


 would  allow  broadcasters  to  bypass  any  obligation  for  educational  and  informative 
 programming  in  Americas  households. 
 This  is  not  to  say  the  public  would  not  demand  educational  television  for  their 
234
 children.  However  in  the  two-  parent  working  home  who  has  time  to  demand  it.  As 
 parents  we  rely  on  PBS,  Disney  and  Nickelodeon  to  provide  the  educational 
 programming  we  want  for  our  children.  But  without  it  we  easily  go  the  way  of  the 
 Cartoon  Network  which  has  little,  if  any,  educational  value  for  our  children.  Is  if  fair  to 
 put  the  burden  on  broadcasters  ?  Maybe  not  but  it  may  be  fair  to  ensure  a  partnership  with 


 parents  that  considers  the  needs  of  our  children  over  the  greed  of  the  advertisers. 
 The  third  issue  I  would  like  to  address  is  self-  regulation  by  the  media.  It  has 
 been  suggested  that  if  you  allow  the  media  to  self-  regulate  that  quality  childrens 
 programming  will  continue  out  of  market  demand.  I  must  disagree.  The  Childrens 
 Television  Act  of  1990  is  a  direct  result  of  the  medias  attempt  to  self-  regulate.  In  the 
 late  70s  and  early  80s  the  government  took  a  hands-  off  approach  to  television  in  an 
 attempt  to  deregulate  the  industry.  After  this  deregulation  the  quality  of  childrens 
 programming  dropped  to  an  all  time  low  and  childrens  television  quickly  became  one 
 giant  commercial.  3  In  response  Congress  passed  the  CTA  with  two  goals  in  mind:  (1) 
 reinstating  the  commercial  restrictions  of  the  1974  Policy;  and  (2)  tying  broadcasters 
 license  renewal  to  the  quality  of  its  childrens  programs.  4  In  a  mere  matter  of  a  few 
 years  self-  regulation  failed  childrens  programming.  Broadcasters  blamed  market 
 pressures  and  the  fight  for  the  almighty  advertising  dollar  instead  of  lack  of  self- 


 regulation  as  the  cause  of  the  decline  in  childrens  programming. 


 351  SMU  L.  Rev.  413,  *416 
 451  SMU  L.  Rev.  413,  *416 
235
 There  are  arguments  for  self-  regulation.  Proponents  of  self-  regulation  argue  that 
 it  is  more  efficient,  more  flexible,  has  more  incentives  for  compliance  and  is  less  costly.  5 
 However,  I  cant  help  but  wonder  if  you  are  leaving  the  wolf  to  guard  the  hen  house  here. 
 The  key  factor  to  self-  regulation  working  is  industry  expertise  and  motivation.  6  In  this 
 situation  greed  may  override  the  motivation  to  self-  regulate.  Advertising  dollars  provide 
 a  strong  incentive  to  broadcasters  and  we  have  to  look  at  what  point  broadcasters  would 
 be  willing  to  forego  self-  regulation  in  a  bid  to  earn  those  precious  advertising  dollars.  In 
 a  domino  effect  other  broadcasters  competing  for  those  same  dollars  may  be  willing  to 
 abandon  self-  regulation.  And  therein  lies  the  true  danger  of  self-  regulation.  It  relies  on 
 the  recipient  of  the  benefit  to  police  themselves. 
 Secondarily,  the  cost  of  self-  regulation,  although  less  expensive  than  government 
 regulation,  may  be  prohibitive  to  broadcasters.  Particularly  those  broadcasters  with  a 
 smaller  market  share  of  view.  As  a  result  small  broadcasters  may  not  adequately  self- 
 regulate.  This  could  lead  to  several  problems:  (1)  lack  of  regulation  among  small 
 broadcasters;  (2)  attempts  by  larger  broadcasters  to  squeeze  out  smaller  broadcasters  by 
 reporting  noncompliance  to  the  F.  C.  C.;  or  (3)  government  intervention  in  self-  regulation 
 of  noncomplying  broadcasters. 
 Because  of  these  concerns,  I  urge  the  Committee  to  recommend  against  self- 
 regulation.  As  we  saw  in  the  1970s  and  early  1980s  self-  regulation  by  the  media  failed 
 this  Nations  children.  Children  provide  a  smaller  target  audience  and  are  the  first 


 %I  Fed.  Comm.  L.  J.  711,  *718 
 %I  Fed.  Comm.  L.  J.  711,  *718 
236
 victims  of  media  self-  regulation. 
 Conclusion 
 For  the  reasons  set  out  above,  I  urge  the  Committee  to  recommend  continued 
 enforcement  of  the  Childrens  Television  Act  of  1990  in  regards  to  Digital  Television  to 
 ensure  continued  quality  educational  programming  for  our  children.  I  believe  this  can  be 
 accomplished  through  dedicated  childrens  channels  but  not  through  usage  fees  or 
 financial  donations.  I  strongly  recommend  that  the  F.  C.  C.  maintain  regulation  over  the 
 industry  by  predicating  licensing  on  compliance  with  the  Childrens  Television  Act  of 
 1990.  Although  the  media  presents  a  large  and  powerful  lobbying  group,  they  should  not 
 be  rewarded  for  using  their  power  to  gain  a  bigger  market  share  at  the  expense  of 
 children. 


 Jill  R.  Schmidtke 
 84  18  Foxworth  Trail 
 Powell,  Tennessee  37849 
 (865)  938-  0243 
237
 To: 
 From: 
 cc: 
 Date: 
 Re: 


 William  Kennard,  Chairman  -  FCC 
 Alex  Waddey 
 Professor  Glenn  H.  Reynolds 
 03/  l  7/  00 
 Comments  on  Proposed  Minimum  Public  Interest  Obligations 


 Dear  Chairman  Kennard, 
 In  response  to  the  FCCs  request  for  comment,  65  FR  4211,  (December  20,  1999) 
 I  want  to  communicate  my  view  as  a  law  student  and  as  an  avid  viewer  of  television.  I 
 realize  that  numerous  comments  support  furthering  regulation.  At  this  time,  I  would  like 
 to  present  a  view  from  the  people  which  opposes  mandatory  public  interest  obligations. 


 Introduction  and  Backmound 
 On  December  20,  1999,  the  Federal  Communications  Commission  issued  a  notice 
 of  inquiry  regarding  the  public  interest  obligations  of  broadcasters  in  the  transition  from 
 analog  to  digital  television.  Broadcasters  have  a  major  impact  on  both  children  and 
 society  as  a  whole.  They  are  a  prime  source  of  news  and  information  and  contain  the 
 power  to  shape  the  way  we  view  the  world.  Because  of  their  impact,  broadcasters  have  a 
 certain  duty  to  serve  the  public.  However,  this  role  is  not  something  new  to  the 
 broadcasters.  The  1934  Communications  Act  requires  broadcasters  to  serve  the  public 
 interest,  convenience  and  necessity.  While  the  language  seems  extremely  broad,  the 
 requirement  has  evolved  into  obligations  regarding  childrens  programming,  politics  and 


 1 
 .  .  .~.    _..__..  -..-.  _..  .l.  l--._  I__.  _-_-^-_  -,  ..,.-  --- 
238
 community  issues.  Specifically,  broadcasters  must  air  three  hours  of  childrens 
 programming  and  provide  political  candidates  lower  advertising  rates. 
 As  technology  progresses  into  the  future,  the  switch  from  analog  to  digital 
 television  has  enhanced  the  concern  of  public  interest  groups.  The  concern  focuses  on 
 the  public  interest  requirement  of  the  broadcasters  as  technology  progresses  into  this  age. 


 The  concern  arises  because  digital  television  offers  numerous  systems  over  which  to 
 broadcast.  With  the  increased  systems,  proponents  of  public  interest  feel  that 
 broadcasters  are  receiving  something  for  nothing. 


 Public  Interest  Oblipations  are  Unnecessary 
 Since  1934,  the  FCC  has  had  a  duty  to  protect  the  interests  of  the  people.  The 
 broadcasters  have  upheld  their  end  of  the  bargain  and  have  gone  above  and  beyond  what 
 has  been  expected.  However,  with  the  onset  of  digital  television,  a  coalition,  the  People 
 for  Better  TV,  has  formed  to  try  to  mandate  certain  minimum  public  interest  obligations. 
 The  coalition  claims  that  broadcasters  have  not  adequately  supplied  public  interest 
 subject  matter. 
 Proponents  claim  that  broadcasters  are  receiving  a  $70  million  benefit  for  free. 
 However,  the  argument  is  misguided.  The  broadcasters  are  not  receiving  anything  for 
 free.  In  fact,  they  are  being  forced  into  purchasing  $30  to  $40  million  of  equipment  in 
 order  to  make  the  transition.   


   Catalina  Camia,  Debate  on  Rules  for  Digital  Television  Continues,  The  Dallas  Morning  News,  May  27, 
 1999. 


 2 
239
 Furthermore,  research  gathered  by  the  NM  leads  one  to  a  realize  that 
 broadcasters  are  not  receiving  anything  for  free.  Broadcasters  are  considered  one  of  the 
 largest  providers  of  public  service  in  the  nation.  Over  the  past  year  broadcasters  have 
 provided  over  $6.8  billion  in  total  public  interest  stories.  The  amount  is  divided  among 
 $4.6  billion  in  public  service  announcements  and  $2.  I  billion  raised  for  charities  and 


 other  various  causes.  2 
 Currently,  an  evaluation  of  the  hard  numbers  of  community  service 
 underestimates  the  value  broadcasters  contribute  to  the  community.  The  numbers  are 
 skewed  because  they  omit  various  other  contributions  that  broadcasters  make  to  the 
 community.  Some  contributions  include,  but  are  not  limited  to  the  following:  charity 
 events,  blood  drives  and  serving  on  boards  and  commissions3 
 These  contributions  are  overlooked  in  calculations  but  play  a  major  role  in 
 supporting,  educating  and  assisting  with  the  community.  Broadcasters  are  role  models  as 
 well  as  community  cheerleaders.  While  they  may  not  be  educating  the  public  directly, 
 they  are  playing  a  major  role  in  assisting  with  the  further  education  of  the  public.  Just 
 think  about  how  many  times  you  have  seen  your  local  broadcaster  supporting  The  Race 
 for  the  Cure  or  hosting  a  Muscular  Dystrophy  Telethon.  While  merely  supporting 
 such  causes  may  not  directly  educate  the  people,  their  support  helps  to  inform  the  people 
 of  certain  problems  that  exist  and  provides  them  with  a  resource  and  understanding  of 
 how  they  can  help  out  in  the  community.  Their  role  of  getting  people  in  the  community 
 to  join  together  in  support  of  those  in  need,  I  argue,  is  much  more  important  than  having 


   www.  nab.  orghewsroom/  issues/  commserv/  defaukasp 
 3  Id. 


 3 
240
 them  remain  isolated  in  the  station.  The  development  of  local  stories  which  will  be  aired 
 make  the  broadcaster  a  more  passive,  distant  part  of  the  community,  whereas,  now  they 
 are  an  active  participant.  With  that  said,  I  want  to  address  more  specific  areas  under 
 regulatory  consideration. 


 Providing  Political  Candidates  with  Excess  Advertising 
 The  Gore  Commission  urges  that  political  candidates  receive  free  air  time  for 
 advertising  before  elections.  The  Commission  proposes  an  argument  without  considering 
 the  desire  for  such  material.  The  People  for  Better  TV  argue  that  there  is  a  huge  gap 
 between  what  people  need  and  what  broadcasters  are  willing  to  provide.  4  The  argument 
 is  misplaced.  In  the  1998  elections,  exit  polls  revealed  that  eight  out  of  ten  voters  said 
 there  was  either  an  excess  of  coverage  or  the  amount  of  coverage  was  ideal5  Also, 
 broadcasters  donated  over  $148  million  in  free  air  time  for  candidates,  public  forums  and 
 debates.  6  Broadcasters  even  offered  $15  million  in  free  air  time  to  candidates,  but  as 
 Dennis  Wharton,  a  spokesman  for  the  National  Association  of  Broadcaster,  says,  [  tlhe 
 dirty  little  secret  about  free  time  is  that  when  broadcasters  offer  it,  it  is  turned  down7 
 Politicians  turn  it  down  because  they  know  that  nationally  televised  debates  are  not 
 necessarily  the  best  way  for  them  to  spend  their  time.    Debates  cost  time  and  energy  and 


 Kathy  Chen,  Regulators  Weigh  How  fo  Expand  Sfanahr&,  for  Digifal  Broadcasfing  WALL  ST.  J.,  Dec. 
 15,  1999,  at  B4. 
   www.  nab.  org/  newsroo~  issues/  commseN/  ay~~  ee~~  r~  times.  asp 
   Brooks  Boliek,  FCC  Begins  Public  Service  Work,  360  Hollywood  Reporter  47,  4  (1999) 
   /UT 
   www.  usatoday.  comfnews/  e9g/  el067.  htm. 


 4 
241
 are  not  the  most  impressive  to  the  people.  The  public  is  often  more  impressed  by 
 personal  interaction.  9 
 Further,  the  lack  of  desire  for  more  political  programming  is  apparent  in  the 


 ratings.  Political  debates  receive  some  of  the  worst  ratings  among  programs  aired. 
 Ratings  for  this  years  presidential  debates  show  that  all  the  debates  combined  have 


 received  fewer  viewers  than  some  of  the  lowest  rated  weekly  programs.  The  WWF 
 Smackdown,  the  9  1  st  ranked  show  of  one  week,  received  7.2  million  viewers,  and 
 Buffy  the  Vampire  Slayer,  the  93  ranked  show,  attracted  3.9  million  viewers.  lo 
 Wharton,  adds,  [  w]  e  dont  hear  a  lot  of  clamoring  from  the  public  for  more  time  for 
 politicians. 
 No  matter  the  popularity  of  political  debates,  viewers  use  specialized  news 
 channels  to  find  out  about  such  matters.  The  public  primarily  turns  to  stations  such  as 
 CNN,  MSNBC  and  C-  SPAN  because  this  subject  matter  is  the  sole  mission  of  these 
 channels.  They  have  the  resources  available  to  cover  the  issues  in  the  most  effective, 
 insightful  and  entertaining  manner,  and  they  do  not  face  regulations.  If  broadcasters 
 were  subject  to  regulation,  they  would  not  only  be  hamstrung  by  new,  narrow, 
 qualitative,  one-  size-  fits-  all  public  interest  obligations  12  but  also  by  their  limited 
 resources. 
 People  may  argue  that  extra  information  would  help  the  public  form  a  more 


 educated  opinion.  In  response  to  such  an  argument,  I  say  be  realistic.  When  elections 


 I  Id.  lo  Id. 
   Kathy  Chen,  Regzdafors  Weigh  How  to  Expand  Standardsfor  Digital  Broadcasting,  WALL  ST.  J.,  Dec. 
 15,  1999,  at  B4. 
 *  I  brying  Lersions  of  Public  Interest  Heard  By  Gore  Commission,  Public  Broad.  Report,  (1997). 


 5 
242
 are  over,  people  rejoice  -  no  more  arguing  or  bashing  of  opponents;  no  more  boring 
 Gore/  Bradley  debates.  I  would  tend  to  agree  that  such  programs  may  further  educate  the 
 public,  but  they  only  do  so  if  people  actually  watch  the  programs.  No  matter  how  much 
 political  content  you  air,  There  will  be  a  slice  of  the  American  public  who  will  wake  up 
 and  say,  Huh?  What  happened?  My  state  hasnt  even  voted  yet!     


 Increased  Childrens  Educational  Programming;  -  More  Harm  than  Help 
 The  Commission  also  seeks  comment  on  whether  broadcasters  should  be  required 
 to  increase  the  amount  of  childrens  educational  television.  Presently,  the 
 Telecommunications  Act  of  1996  requires  broadcasters  to  ensure  that  4%  of  their 
 programming  content  consists  of  educational  programming.  Broadcasters  have 
 strained  to  met  such  requirements  throughout  the  analog  phase.  Such  a  requirement  in 
 the  digital  phase  for  each  stream  wouId  extremely  overburden  the  broadcaster.  Andrew 
 Paul,  a  lobbyist  for  the  Satellite  Broadcasting  and  Communications  Association,  is 
 concerned  as  to  where  broadcasters  can  find  the  necessary  content  that  such  obligations 
 would  require.  With  a  nationwide  base  of  customers,  broadcasters  cannot  use  local 
 environmental  issues  therefore  eliminating  a  large  block  of  what  is  available  now.  16  A 
 lack  mandatory  regulation  does  not  mean  that  broadcasters  will  ignore  public  interest 
 TV.  As  the  numbers  have  shown,  broadcasters  have  voluntarily  upheld  their  end  of  the 


 bargain  and  will  continue  to  do  so  with  digital  TV.  Broadcasters  have  even  considered 


   www.  usatoday.  comlnews/  e98/  e1067.  htm 
 I  Bill  McConnell,  FIT  Sefs  lhe  Price  for  Digital,  Broad.  &  Cable,  November  23,  1998. 
 I5  Bill  McConnell,  DeciJiq  011  Digital  Public  Interest,  Broad.  &  Cable,  October  12,  1998. 
   Id. 


 6 
243
 making  one  stream  an  entire  language  teaching  channel.  Public  advocate  Gigi  Sohn 
 agrees  that  [  she]  can  live  with  the  4%  number  as  long  as  the  FCC  is  willing  to  revisit  the 
 issue  in  the  future.  917  Sohns  request  is  justifiable,  but  I  believe,  in  the  future,  public 
 advocates  will  see  that  broadcasters  have  lived  up  to  their  responsibility. 
 Additional  reasons  an  increase  in  childrens  television  is  not  the  answer  are  the 


 harm  caused  to  the  parent/  child  relationship  as  well  as  the  harm  to  the  child  individually. 
 Children  are  in  school  from  eight  oclock  in  the  morning  to  three  in  the  afternoon.  Often, 
 extracurricular  activities  occupy  an  hour  or  so  after  school;  then,  they  have  an  hour  or  so 
 of  homework.  At  this  time,  it  is  around  five  oclock  in  the  afternoon,  a  time  when 
 parents  begin  to  arrive  home.  My  plea  to  the  commission  here  is  not  to  let  parents  take 
 the  easy  way  out.  Parents  shold  not  rely  on  broadcasters  to  provide  addditional 
 educational  guidance  that  their  children  may  need.  The  growing  distance  between 
 children  and  parents  would  only  be  furthered  by  such  a  decision. 
 Parents  will  gain  a  false  sense  of  security  in  allowing  their  kids  to  watch  TV.  One 
 study  already  shows  that  parents  and  kids  spend  a  quarter  of  their  time  together 
 watching  TV.  a  This  time  spent  watching  TV  means  less  time  for  talking,  interacting 
 and  establishing  a  friendship  with  one  another.  Parents  may  respond  that  at  least  they  are 
 learning  something.  It  is  helpful  to  their  education.  However,  parents  should  first 
 consider  studies  which  address  this  argument. 
 Studies  reveal  that  the  more  children  watch  TV,  the  more  likely  they  are  to 
 underachieve  in  academics.  In  addition,  researchers  notice  a  connection  between  the 


   Id. 
   wwwpink-  bubble.  com/  subcategories/  media.  hvguidance 
244
 amount  of  TV  watched  by  a  child  and  the  likelihood  of  developing  attention  deficit 
 disorder  (ADD)  or  attention  deficit  hyperactive  disorder  (ADHD).  The  connection  is 


 obvious.  The  rapidly  changing  TV  screens  help  form  a  childs  brain  waves.  While 
 parents  may  believe  that  more  educational  TV  will  benefit  children,  children  who  watch 
 more  TV  have  less  creative  and  imaginative  skill.  A  child  grows  accustomed  to  the 


 frenetic  pace  of  television  whether  it  be  from  changing  from  channel  to  channel  or 
 watching  the  images  on  one  channel  change  at  a  rapid  pace.  l9  Kids  should  be  outside 
 playing  and  exercising;  instead  of  inside  watching  Nickelodeon  game  shows  which  have 
 children  diving  into  sundaes  and  running  obstacle  courses. 


 Conclusion 
 As  technology  progresses  at  a  rapid  pace,  the  FCC  is  trying  its  best  to  ensure  that 
 the  publics  interests  are  not  being  left  behind.  However,  the  increased  enforcement  of 
 public  interest  obligations  is  not  the  way  to  accomplish  that  objective.  Broadcasters  have 
 lived  up  to  their  responsibility  and  will  continue  to  do  so  on  their  own.  By  allowing  them 
 to  police  themselves,  they  will  able  to  compete  with  other  mediums  while  still  providing 
 the  public  with  educational  programming  in  the  childrens  arena  as  well  as  the  political 
 advertising  venue.  Therefore,  additional  regulation  will  merely  hamstring  the 
 broadcasters.  Thank  you  for  your  consideration. 


 Sincerely, 
 Alex  Waddey 


 I9  www.  limitv.  org/  tvaddadhd 
 8 
245
 March  17,200O 
 April  M.  York 
 301  Cheshire  Drive  #86 
 Knoxville,  TN  37919 


 Federal  Communications  Commission  445  12th  Street 
 Room  TW-  A306,  SW 
 Washington,  DC  20554 


 Re:  Public  Comment  in  response  to  the  FCCs  Notice  of  Inquiry; 
 MM  Docket  No.  99-  360;  FCC  99-  390;  65  FR  4211; 
 Public  Interest  Obligations  of  Television  Broadcast  Licensees 


 Dear  Commissioners: 
 I  am  a  graduate  student  writing  in  response  to  the  Commissions  Notice  of  Inquiry 
 (FCC  99-  390),  adopted  December  15,  1999.  The  Notice  of  Inquiry  indicates  that  the 
 Commission  is  considering  whether  it  should  redefine  the  public  interest  obligations  of 
 television  broadcast  licensees  in  light  of  the  advent  of  new  digital  television  technology. 
 I  believe  that  the  Commission  should  seize  this  opportunity  to  define  the  contours  of 
 broadcasters  public  interest  obligations  and  should  establish  new  minimum  guidelines  to 
 remedy  the  lack  of  sex  education  for  adolescents. 


 SEXEDUCATIONISINTHERJBLIC~  SINTEREST 
 Every  year,  approximately  three  million  cases  of  sexually  transmitted  diseases 
 (S  TDs)  occur  among  teenagers,  r  and  approximately  one  million  teenagers  become 


 pregnant.*  Birth  rates  for  unmarried  teens  rose  steadily  in  the  198Os,  increasing  62% 
 from  1980  to  1990  alone,  resulting  in  a  rate  of  44.8  births  per  1,000  women  in  the  15-  19 


   INSTITUTE  OF  ~~  EDICINE,  THE  HIDDEN  EPIDEMIC  1  (1997). 
   ALAN  GUTTMACHER  INSTITUTE,  SEX  AND  AMERICAS  TEENAGERS  4  (1994) 


 1 


 .,-__  .-  _  ._  .,  I  _.-.  _.  -,_.-_  l^._..-  .,..  _  --- 
246
 age  group.    More  than  500,000  teens  in  this  age  group  gave  birth  in  1990.4  The  statistics 
 concerning  HIV/  AIDS  infection  and  other  STDs  among  this  age  group  were  even  more 
 disturbing.  The  Centers  for  Disease  Control  (CDC)  indicate  that  the  rate  of  gonorrhea 


 among  teens  increased  almost  50%  from  198  1  to  1990,  with  adolescents  accounting  for 
 24-  30%  of  the  total  reported  cases  in  1990.   


 Society  has  responded  with  a  series  of  locally  based  sex  education  programs  that 
 contain  a  variety  of  diverse  curriculums  aimed  at  curtailing  the  problem.  6  The  good  news 
 is  that  new  CDC  statistics  analyzing  youth  behavior  between  199  1  and  1997  show  that 
 the  percentage  of  U.  S.  high  school  students  who  have  sexual  intercourse  is  decreasing.  7 
 Furthermore,  the  use  of  condoms  among  sexually  active  students  has  increased 
 dramatically,*  and  teen  pregnancy  rates  fell  four  percent  in  1997.9  While  the  reduction  in 
 the  number  of  diseases  and  pregnancies  is  good  news,  a  majority  of  high  school  students 
 still  engage  in  sexual  intercourse.  1  In  fact  the  number  of  teens  with  the  AIDS  virus 
 increased  65%  between  1991  and  1992  alone.*   


 3  See  Stephanie  J.  Ventura,  Recent  Tren&  in  Teen-  Age  Child  Bearing  in  the  United  States,  75  STAT.  BULL. 
 Yl.  994). 
 5  See  William  Adams,  But  Do  You  Have  to  Teli  My  Parents?  The  Dilemma  for  Minors  Seeking  HIV  Testing 
 and  Treatment,  27  J.  MARSHALL  L.  REV.  495  (1994)  (discussing  studies  on  adolescent  HIV/  STD  rates). 
 6  See  Trends  in  Sexual  Risk  Behaviors  Among  High  School  Students  --  United  States  1991-  1997, 
 MORBIDITY  &  MORTALITY  WKLY.  REP.  (CDC,  Atlanta,  Ga.),  Sept.  18,  1998,4. 
   See  id.  at  2 
   See  id. 
 9  MSNBC,  Teen  Pregnancy  Rates  Plummet  (visited  Apr.  29,  1999)  <http://  msnbc.  comlnews/  263778.  asp> 
 (United  States  Department  of  Health  and  Human  Services  reports  teenage  pregnancy  rates  to  be  the  lowest 
 since  1973). 
 lo  See  id.  at  3;  see  also  Bridget  Murray,  Debates  Over  Sex  Education  May  Put  Teen  Health  at  Risk,  APA 
 MONITOR,  Nov.  1996,  at  15  (Statistics  from  the  Alan  Guttrnacher  Institute  show  that  56%  of  girls  and  65% 
 of  boys  have  reported  having  sex  by  the  age  of  18). 
   See  Adams,  supra  note  5,  at  499. 


 2 


 -. 
247
 Society  has  an  interest  in  ensuring  that  all  children  are  armed  with  accurate 
 information  regarding  sexual  activity.  l2  The  Institute  of  Medicine,  the  World  Health 
 Organization,  and  the  Center  for  Disease  Control  agree  that  sexuality  education  is  the 
 best  way  to  prevent  pregnancies  and  sexually  transmitted  diseases.  t3  Those  people 
 opposed  to  sex  education  believe  that  young  people  who  know  about  sex  will  have  it.  14 


 However,  research  shows  that  high  school  students  who  understand  their  sexuality  tend  to 
 delay  their  first  sexual  experience  and  to  use  birth  control  when  engaging  in  intercourse.  l5 
 A  lack  of  accurate  sexual  information  can  lead  to  a  sex  education  fueled  by  the  media  and 
 peers.  l6 


 The  need  for  sex  education  becomes  evident  by  examining  the  common 
 misperceptions  shared  by  teenagers  about  sex.  An  interview  of  high  school  girls  about 
 sexual  practices  revealed  an  alarming  depth  of  ignorance  regarding  sexuality.  For 
 example,  one  girl  believed  that  taking  one  of  her  mothers  birth  control  pills  made  her 
 permanently  infertile.*  Another  girl  believed  if  she  only  had  sex  during  the  middle 
 of..  .  [her]  .  .  ,period,  then  pregnancy  was  impossible.  Yet  another  eighteen-  year-  old 
 woman  thought  she  could  not  get  pregnant  because  she  believed  she  was  a  lesbian.  The 
 woman  had  unprotected  sex  with  a  gay  male  friend,  and  became  pregnant  as  a  result.  20 


 *  Id. 
 l3  Felix  E.  Gardon,  Talking  to  Your  Kia!  s  About  Sexualify  (visited  Mar.  25,  1999) 
 ~http://  www.  siecus.  org/  pubs/  pubsOOOl  .html>. 
   See  id. 
   See  id. 
 l6  See  id.  at  379. 
 7  See  id.  at  393. 
   See  id. 
 9  See  id. 
248
 THE  GOAL  OF  SEX  EDUCATION 
 The  goal  of  sex  education  is  to  provide  the  young  people  of  our  country  with 


 accurate  information  and  various  points  of  view  regarding  issues  of  sexuality.  By  arming 
 young  people  with  knowledge,  many  undesirable  results  of  relationships  can  be  avoided. 
 For  instance,  a  young  man  may  attempt  to  use  coercion  to  convince  his  girlfriend  to 
 consent  to  sex.  2  This  type  of  coercion  involves  intimidation  by  physical  aggression  or 
 threats  to  a  persons  sense  of  self.  22  The  classic  words  in  male-  female  relationships  are, 
 You  would  if  you  loved  me.  23  Yet,  a  girl  exposed  to  sexual  education  would  be  better 
 able  to  mitigate  such  p10ys.~    Moreover,  she  may  be  likely  to  discuss  the  issue  of  sex 
 with  her  boyfriend,  instead  of  feeling  too  embarrassed  to  talk  with  him.  25  This  discussion 
 would  allow  her  to  express  why  she  can  love  him  without  having  sex.  26  By  equipping 
 teenagers  with  the  tools  of  reason,  teenage  sexual  issues  can  be  confronted  forthrightly, 
 and  the  ignorance  that  causes  teenage  pregnancies  and  sexual  diseases  can  be  stymied.  27 
 Television  represents  a  mechanism  capable  of  reaching  all  students  with  an  authoritative 
 method  of  instruction  regarding  facts  about  sexual  activity  that  can  help  reduce  teenage 
 pregnancy  and  sexual  diseases.  28 


 *  See  Murray,  supra  note  10,  at  16. 
 2'SeeN~~~  W~~~,  P~~~~~~~~~~~:  T~  S~~~~  S~~~~~~~~  W0h~~~  00~,  142(  1997). 
 22  See  id. 
 23  See  SUZETTE  H.  ELGIN,  GENDERSPEAK,  165  (1993). 
 24  See  WOLF,  supra  note  2  1,  at  143. 
 *  See  id. 
 26  See  id.  at  170. 
 27  See  id.  at  168-  7  1. 
   Id. 


 4 


 .-  ^I_  .,..  -  .-_.  ---..--  .  _  I  __.  .-.  ..,  ^,_._  ..-  .--~ 
249
 How  TELEVISIONBROADCASTERSCANADDRESSTHISPUBLICINTEREST 
 In  its  Final  Report,  the  Gore  Commission  recognized  that  federal  oversight  of 
 broadcasting  has  had  two  general  goals:  to  foster  the  commercial  development  of  the 
 industry  (and  new  technology)  and  to  ensure  that  broadcasting  serves  the  educational  and 
 informational  needs  of  the  American  people.  29  Even  with  the  advent  of  digital 
 television,  broadcasters  remain  the  public  trustees  of  a  public  resource  and  continue  to 
 have  an  obligation,  first  and  foremost,  to  serve  the  public  interest.  30  Access  to 
 educational  programming  is  an  effective  means  of  serving  the  public  interest.  The 
 nations  future  strength  may  well  depend  upon  the  access  of  all  members  of  society  to 
 educational  resources.  No  means  of  communication  is  as  effective  an  educator  as 
 television.  Television  is  still  the  most  watched  and  most  trusted  source  of  information  in 
 the  United  States.  31  Specifically,  children  and  adolescents  spend  many  hours  each  week 
 watching  television. 


 Although  many  shows  watched  by  youth  address  sexuality  issues,  few  offer  any 
 meaningful  or  informative  perspective  on  sexuality.  For  example,  many  of  the  shows 
 found  on  the  WB  Network  depict  high-  school  students  engaging  in  sexual  activity,  but 
 few  address  the  consequences  of  that  activity.  32  As  a  result,  viewers  are  often  left  with  a 


 29  Final  Report,  Section  II:  The  Public  Interest  Standard  in  Television  Broadcasting  (Dec.  18,  1998) 
 3o  Telecommunications  Act  of  1996,  Pub.  L.  No.  104-  104  (codified  at  47  U.  S.  C.  Q  151  et  seq.)  (Feb.  8, 
 1996);  47  U.  S.  C.  0  336(  a-  b)  (1999). 
 j  Deciding  the  Future  of  Television,  The  Digital  Beat,  Vol.  2,  No.  22  (Jan.  2000)  (noting  that  93%  of 
 Americans  watch  a  television  program  in  the  course  of  a  week  and  69%  of  Americans  view  television  as 
 the  most  trusted  source  of  information). 
 32  An  anomaly  can  be  found  in  a  recent  episode  of  Popular,  which  depicted  a  sixteen  year  old  girl  faced 
 with  a  positive  home  pregnancy  test  result  after  having  protected  sex  with  her  ex-  boyfriend  one  time.  This 
 episode  showed  a  very  real  perspective  on  teenage  pregnancy  including  a  dream  sequence  where  the  girls 
 teacher  became  a  Las  Vegas  lounge  singer  and  sang  to  her  about  being  a  pregnant  dirty  ho  and  prom 
 mom  on  the  floor.  By  demonstrating  one  of  the  risks  of  sexual  intercourse,  albeit  in  a  humorous  light,  the 


 5 
250
 misconception  about  sexuality.  Television  can  correct  those  misperceptions  and  educate 
 those  who  may  not  be  fortunate  enough  to  have  parents  or  other  educators  who  will 
 answer  their  questions  and  keep  them  informed.  Since  television  already  plays  a  role  in 
 the  sexual  socialization  of  children,  broadcasters  should  be  required  to  use  that  role 
 responsibly. 


 Proposals  for  Increased  Sex  Education  Programming 
 To  whom  much  is  given,  much  is  required.  As  digital  television  expands 
 broadcasters  capacities  to  provide  programming  through  multi-  casting,  broadcasters 
 public  interest  obligations  should  be  expanded  proportionately.  Broadcasters  could, 
 through  the  use  of  multi-  casting,  create  channels  specifically  devoted  to  sex  education.  33 
 While  this  would  be  a  positive  outcome,  completely  relegating  sex  education 
 programming  to  one  program  stream  may  create  an  educational  ghetto  that  is  not 
 commonly  watched  by  adolescents  because  of  a  perception  that  it  is  like  PBS  stations. 
 As  a  result,  broadcasters  should  be  required  to  meet  their  public  interest  obligations  on 
 each  program  stream  they  utilize. 


 Requiring  programming  on  popular  channels  may  be  necessary  to  achieve  the 
 goal  of  sex  education.  However,  to  avoid  placing  an  unreasonable  burden  on 
 broadcasters,  the  form  of  this  programming  should  be  left  to  the  broadcasters  discretion. 
 Thus,  a  broadcaster  may  choose  to  air  many  types  of  programming  ranging  from  the 


 episode  broke  the  traditional  mold.  Unfortunately,  many  other  shows  stop  with  the  scene  of  the  couple  engaging  in  sexual  activity  and  never  follow  up  on  the  emotional  or  physical  consequences  of  such  action. 
251
 traditional  afterschool  special,  to  a  special  news  or  talk  program  geared  toward 
 teenagers  and  devoted  to  sexual  topics,  or  sexually  explicit  public  service  announcements 
 similar  to  the  this  is  your  brain;  this  is  your  brain  on  drugs  campaign.  When  placed 
 strategically  to  precede  or  follow  other  popular  shows,  these  forms  of  sex  education 
 programming  may  reach  the  desired  audience  and  provide  them  with  needed  information. 


 First  Amendment  Concerns 
 Determining  exactly  what  type  of  programming  would  fulfill  the  goal  of  sex 
 education  may  engender  dispute  and  raise  First  Amendment  concerns.  However,  given 
 the  prevalence  of  teen  pregnancy  and  STDs  today,  it  should  not  be  difficult  to 
 demonstrate  that  such  programming  serves  a  compelling  governmental  interest  and  is 
 narrowly  tailored  to  achieve  that  interest.  Applying  the  more  common  standard  used  to 
 evaluate  content-  based  regulation  in  the  television  industry,  such  programming  is 
 rationally  related  to  an  important  governmental  interest.  So  long  as  the  FCC  does  not 
 decide  which  views  adolescents  can  and  cannot  hear,  this  proposal  is  fully  consistent  with 
 the  First  Amendment  and  indeed  promotes  First  Amendment  values  by  exposing  the 
 public  to  a  wide  range  of  views  on  an  issue  of  public  concern. 


 CONCLUSION 
 The  need  for  children  in  America  to  understand  the  risks  and  dangers  associated 
 with  engaging  in  sexual  activity  is  obvious.  The  three  million  teenagers  contracting 
 sexual  diseases  and  one  million  teenagers  getting  pregnant  every  year  can  be  prevented 


 33  While  this  proposal  may  sound  alarming  to  some,  its  usefulness  in  attracting  teenagers  through  a  title 
 such  as  Sex  TV  may  prove  successful.  Such  a  station  may  promote  a  dialogue  between  parents  and 


 7 
 --.  .-  .  _.  _ 
252
 through  an  effective  educational  program.  This  Comment  advocates  a  solution  to  the 
 problem  of  dispersed,  inefficient,  and  ineffective  sexual  education.  Society  should  teach 
 children  how  to  deal  with  their  sexuality.  By  using  educational  programming  to  help 
 teenagers  think  through  situations,  the  number  of  sexual  diseases  and  teen  pregnancies 
 can  be  reduced.  We  must  seize  the  opportunity  presented  by  digital  television  to  fulfill 
 televisions  potential  to  serve  the  public  good  in  this  manner. 


 Sincerely, 
 April  M.  Y 


 children  about  sexual  topics. 
 8 
253
 R.  Jackson  Pope 
 Page  1 
 3.17.00 


 William  E.  Kennard  Chairman 
 Federal  Communications  Commission  445  12  Street  SW 
 Room  SB-  201H 
 Washington,  DC  20554 


 March  17,200O 


 Re:  Public  Interest  Obligations  of  Television  Broadcast  Licensees 
 47  CFR  Part  73;  MM  Docket  No.  99-  360;  FCC  99-  390 


 Chairman  Kennard: 


 In  response  to  the  Federal  Communications  Commissions  (FCC)  request  for  public 
 comments,  47  CFR  Part  73,  of  January  26,  2000,  I  would  like  to  take  this  opportunity  to 
 communicate  my  views  regarding  the  public  interest  obligations  of  television  broadcast 
 licensees.  As  a  law  student  and  an  active  and  eager  participant  in  the  growing 
 technological  marketplace  and  culture  that  includes  digital  television  (DTV)  technology, 
 I  feel  compelled  to  express  my  view  that  the  public  interest  obligations  of  broadcast 
 licensees,  particularly  those  of  minimum  standards,  political  discourse,  disclosure,  and 
 equal  access,  should  be  reconsidered  in  light  of  the  new  capabilities  and  opportunities 
 DTV  technology  provides.  Translating  the  current  obligations  of  the  licensees  from  the 
 analog  to  digital  format  is  insufficient  because  it  does  not  take  into  account  the  potential 
 for  impact  on  our  society  nor  the  commercial  possibilities  that  exist  in  the  digital  future. 
 Any  diminution  or  repeal  of  the  current  obligations  would  result  in  the  unjust  neglect  of 
 our  common  interests,  convenience,  and  necessity  by  entities  whose  overriding  purpose 
 is  their  own  enrichment  via  a  domain  belonging  to  the  public.  With  the  proper  balancing 


 of  the  public  interest  and  the  private  concerns  of  broadcasters,  it  is  possible  to  formulate 
 a  framework  of  mandatory  minimum  standards  and  voluntary,  incentive-  driven  enhanced 
 standards  that  will  allow  the  public  at  large  and  the  broadcasters  to  take  full  advantage  of 
 the  advent  of  the  digital  age. 
254
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 Minimum  Public  Interest  Requirements 


 I  have  no  doubt  that  the  FCC  is  receiving  numerous  comments  regarding  the  public 
 interest  obligations  of  broadcast  licensees.  What  concerns  me  is  that  the  majority  are 
 likely  from  broadcasters  and  organizations  thereof.  The  ones  I  have  accessed  on  the 
 intemet  generally  advocate  the  implementation  of  a  voluntary  code  of  conduct  that 
 broadcasters  could  submit  to  that  would  somewhat  resemble  the  public  interest 
 obligations  that  already  exist  under  the  current  licensure  standards  applied  by  the  FCC. 
 This  type  of  proposal  trumpets  the  virtues  of  economic  incentives  and  the  civic  goodwill 
 of  broadcasters  in  safeguarding  the  public  interest.  It  is  implicit  in  their  contentions  that 
 the  marketplace  and  good  will  of  broadcasters  are  sufficient  to  achieve  the  furtherance  of 
 fundamental  public  interests.  They  cite  the  First  Amendment  and  Section  326  of  the 
 Communications  Act  as  limitations  on  the  regulatory  powers  of  the  FCC.  The 
 development  of  the  digital  bandwidth  and  the  full  economic  impact  of  its 
 commercialization  are  too  important  to  be  hindered  by  excessive  regulatory  initiatives,  or 
 so  the  argument  goes. 
 To  the  contrary,  I  submit  that  such  voluntary  incentive-  based  schemes  are,  in  fact,  not 
 sufficient  to  effectively  or  properly  guarantee  the  advancement  of  the  substantial  public 
 interest  in  this  context.  There  are  numerous  broadcasters  who  are  not  members  of  the 
 National  Association  of  Broadcasters  or  other  industry  organizations  and  thus  industry- 
 based  initiatives  would  not  necessarily  affect  them.  These  broadcasters  could  comply  or 
 not  as  was  their  preference  until  license  renewal  without  consequence.  With  that  sort  of 
 incomplete  ability  to  self-  regulate,  it  is  simply  not  feasible  to  allow  the  broadcasting 
 industry  to  operate  solely  of  their  own  recognizance. 
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 That  said,  a  voluntary,  incentive-  driven  scheme  of  enhanced,  aspirational  standards 


 would  be  an  appropriate  supplement  to  a  set  of  mandatory  minimum  public  interest 
 requirements  administered  by  the  FCC  under  the  authority  conferred  upon  it  by  Congress 
 in  the  Communications  Act  of  1934.    Under  such  an  approach,  all  licensed  digital 
 broadcasters  would  be  covered  at  least  with  respect  to  certain  floor  requirements. 
 Moreover,  digital  broadcasters  with  genuine  public  interests  at  heart  would  be  more  than 
 welcome,  in  fact  encouraged  and  rewarded,  to  go  beyond  the  barest  minimums  of 
 compliance.  This  type  of  system  would  encompass  the  best  of  both  worlds,  the  market 
 mechanisms  and  industry  inertia,  on  the  one  hand,  and  independent  oversight  and 
 enforcement  on  the  other.  A  blend  of  the  two  would  result  in  the  flexibility  desired  by 
 the  broadcasters  to  enhance  the  development  of  the  digital  market  and  the  bolstering  of 
 the  core  public  interests  the  broadcasters  have  long  been  charged  with  serving.  A  phase- 
 in  period  of  a  year  or  two  might  be  appropriate  to  see  where  the  industry  seems  to  be 
 headed  and  what  issues  may  be  important  which  are  not  yet  apparent.  That  would 
 prevent  an  undue  burden  from  falling  upon  broadcasters  considering  they  would  have 
 considerable  notice  of  what  will  be  expected  of  them  upon  full  implementation  of  the 
 standards. 
 Political  Discourse 
 An  exciting  area  in  which  the  expanded  capabilities  of  DTV  promise  to  command 
 great  attention  and  generate  much  comment  is  that  of  the  role  of  broadcasters  in 
 promoting  political  discourse,  including  that  of  local,  regional,  and  national  politics.  This 
 role  has  been  a  significant  aspect  of  the  public  interest  obligations  of  the  broadcasting 
 industry  since  the  earliest  regulation  of  the  medium.  Broadcasters  have  long  been 


   Notice  of  Inquiry,  In  the  Matter  of  Public  Interest  Obligations  of  TV  Broadcast  Licensees,  MM  Docket  No.  99-  360,  p.  1-  2. 
256
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 required  to  allocate  certain  amounts  of  airtime  during  certain  time  periods  to  political 


 candidates  and  for  debates,  issue  fora,  as  well  as  other  events  and  happenings  of  political 
 import.  From  the  earliest  days  of  American  democracy,  it  has  been  widely  asserted  that 
 the  media  plays  a  crucial  function  in  the  maintenance  of  an  informed,  participatory,  and 
 self-  governing  citizenry.  2  Television  has  become  the  primary  source  of  political 
 information  and  access  to  public  debate.  Therefore,  the  importance  of  the  promotion  of 
 political  discourse  remains,  regardless  of  the  technological  nature  of  the  system  over 
 which  it  is  transmitted.  Digital  or  analog,  broadcasters  have  an  continuing  obligation  to 
 provide  access  to  airtime  for  political  programming  and  public  affairs  programming. 
 Given  the  current  state  of  our  stagnant  partisan  political  discourse,  I  submit  that  now 
 more  than  ever,  is  the  public  interest  in  democracy  implicated  by  broadcasting  issues,  in 
 this  case,  the  transition  from  analog  technology  to  the  digital  revolution  and  DTV 
 licensees  obligations. 
 The  need  for  reform  of  our  political  system,  made  so  readily  apparent  everyday  in  the 
 commercial  media,  is  well  served  by  the  media  revolution  that  is  taking  place,  including 
 but  not  limited  to  DTV.  The  primary  blights  on  our  system  -  the  partisan  wrangling,  the 
 hegemony  of  the  special  interests,  the  campaign  finance  morass,  the  need  for  which  could 
 be  obviated  by  enhanced  access  by  and  to  the  common  citizen  -  are  entrenched.  The 
 untold  potential  of  broadband  digital  technology  is  very  promising  in  regard  to  addressing 
 these  problems.  It  contains  the  possibility  of  near  universal  access  of  the  citizenry  to  the 
 political  arena  and  of  those  in  the  political  arena  to  the  citizenry.  The  expediency  of 
 special  interest  organizations,  which  purport  to  give  deserving  people  a  more  salient 
 voice  but  result  all  too  often  in  undue  influence  for  the  undeserving,  could  be  countered 


 2  Making  Media  Democratic,  Robert  McChesney,  Boston  Review  Online,  http://  bostonreview.  mit.  edu/  BR23.3/  mcchesney.  hti 
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 by  virtual  access  to  legislative  and  administrative  bodies,  all  with  the  ease  of  digital 


 communications.  The  functionality  of  political  parties  in  getting  a  message  out  and 
 organizing  in  furtherance  of  it  could  be  matched  by  amplifying  the  messages  of 
 individuals  who  could  find  themselves  inside  the  process  by  virtue  of  technological 
 access,  all  without  serving  some  political  machine.  The  maniacal  hoarding  of  campaign 
 warchests  and  the  improprieties  and  influence  peddling  that  accompany  it  could  be 
 rendered  obsolete  by  enhanced  access  to  the  electorate  made  technologically  feasible  by 
 digital  communications  and  made  available  inexpensively  pursuant  to  broadcasters 
 public  interest  obligations. 
 Substantial  reform,  first  and  foremost  campaign  finance  reform,  is  of  the  utmost 
 significance  to  the  continued  vitality  and  strength  of  our  democracy.  There  is  great 
 opportunity  for  societal  advancement  in  the  discovery  and  development  of  new 
 technologies.  We  are  on  the  cusp  of  some  of  the  most  remarkable  technological  feats  in 
 human  history.  It  would  be  a  great  shame  not  to  take  full  advantage  of  the  potential  they 
 represent.  Not  only  should  broadcasters  be  required  to  maintain  their  current  political 
 discourse  public  interest  obligations,  they  should  be  charged  with  even  greater  ones  in 
 conjunction  with  the  reform  of  our  wayward  system  of  governance.  Ideas,  issues,  and 
 vision  could  be  the  principle  political  currency,  rather  than  connections,  favors,  and 
 money.  Our  democracy  could  finally  aspire  to  be  just  that,  rather  than  a  self-  deluding 
 oligarchy. 
 Equal  Access 
 DTV  likewise  portends  significant  opportunities  for  the  advancement  of  equal  access 
 to  social,  political,  economic,  and  cultural  power  of  broadcast  media  by  all  people, 
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 including  people  of  all  races,  ethnicities,  and  disabled  persons,  and  regardless  of  gender. 


 The  opening  of  an  entire  new  bandwidth  will  allow  for  the  return  of  the  analog  bandwidth 


 by  the  licensed  broadcasters.  Disenfranchised  persons,  unable  to  participate  in  the 
 mainstream,  established  media  market,  could  then  have  access  to  these  alternatives 
 thereby  circumventing  the  obstacles  they  had  previously  faced.  The  FCC  could  distribute 
 funds  in  support  of  this  public  policy  goal  generated  in  part  or  in  whole  from  the  fees  it 
 charges  existing  broadcast  licensees.  I  would  suggest  a  program  of  this  sort  for 
 implementation  once  the  switchover  and  simulcasting  periods  have  elapsed  and  the 
 digital  broadcast  licensees  return  the  analog  bandwidth.  This  is  a  key  component  in  the 
 continuing  effort  to  provide  access  to  our  societys  many  opportunities  to  people 
 regardless  of  race,  color,  religion,  national  origin,  sex,  or  disability  status. 
 Furthermore,  DTV  technology  will  allow  disabled  persons  much  greater  access  to  the 
 world  around  them.  By  implementation  of  closed  captioning  systems,  and  the  remarkable 
 datastream  capabilities  of  DTV,  blind  and  deaf  persons  will  enjoy  unprecedented  access 
 to  information,  entertainment,  and  the  electronic  marketplace.  The  FCC  should  set  forth 
 mandatory  minimum  requirements,  again  with  voluntary,  incentive-  driven  higher 
 standards,  for  the  availability  of  closed  captioning,  video  description  services,  and 
 associated  technologies  in  the  new  digital  broadcasting  format.  A  phase-  in  period  of 
 several  years  would  be  appropriate  given  the  significant  costs  involved  and  the  legitimate 
 interest  in  avoiding  undue  burdens  on  the  broadcast  licensees. 
 Disclosure 
 Finally,  I  recommend  enhanced  disclosure  requirements  pertaining  to  DTV  broadcast 
 licensees.  Increased  specificity  and  access  on  the  near  universal  licensee  website. 
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 Implemented  together  with  the  mandatory  minimum  public  interest  requirements 


 suggested  above,  as  well  as  the  voluntary,  incentive-  based  enhanced  standards,  this 
 would  permit  public  as  well  as  official  scrutiny  of  the  broadcast  licensees  compliance, 
 specifically,  and  their  level  of  commitment  to  the  public  interest,  generally.  Individual 
 members  of  the  community  would  invariably  be  much  more  likely  to  virtually  inspect  a 
 licensees  required  public  filings  via  the  intemet  at  their  convenience  than  they  would  be 
 to  travel  to  the  licensees  location  and  physically  inspect  them.  Licensees  are  currently 
 permitted  to  maintain  their  public  file  electronically.  This  simply  expands  upon  that 
 provision  and  allows  access  to  the  public  by  means  the  public  is  increasingly  using  as  a 
 tool  for  civic  and  commercial  behavior. 
 Conclusion 
 In  conclusion,  I  would  like  to  remark  that  while  flexibility  in  implementation  and 
 avoidance  of  undue  burdens  upon  the  DTV  broadcast  licensees  are  important  goals,  the 
 underlying  public  policy  interests  are  crucial.  They  must  be  preserved  at  the  very  least 
 and  enhanced  if  at  all  possible.  Digital  technology  is  indeed  a  wonderful  opportunity  for 
 this  nation,  its  citizens,  and  future  generations.  DTV,  in  particular,  is  important  due  to 
 the  familiarity  of  the  vast  majority  of  Americans  with  televisions  general  format,  relative 
 to  the  intemet  or  wireless  communications  technology.  To  most  folks  a  TV  is  a  TV. 
 That  being  the  case,  this  represents  an  opportunity  to  include  them  in  the  digital 
 revolution  even  if  they  dont  realize  they  are  participating. 
 Very  truly  yours, 


 CC:  Glenn  H.  Reynolds 
260
 March  17,  2000 
 Michael  L.  Berman  301  Cheshire  Drive  #86 
 Knoxville,  TN  37919 


 MAR  2  3  2000 


 Federal  Communications  Commission  445  12th  Street 
 Room  TW-  A306,  SW 
 Washington,  DC  20554 


 Re:  Public  Comment  in  response  to  the  FCC's  Notice  of  Inquiry; 
 MM  Docket  No.  99-  360;  FCC  99-  390;  65  FR  4211;  Public 
 Interest  Obligations  of  Television  Broadcast  Licensees 


 Dear  Commissioners: 
 I  am  law  student  at  the  University  of  Tennessee 
 writing  in  response  to  the  FCC's  request  for  public  comments,  65 
 Fed.  Reg.  4211,  (January  26,  2000).  The  FCC  should  take  this 
 opportunity  in  formulating  new  policy  regulations  regarding 
 digital  television  to  protect  children  from  violent  television. 
 In  order  to  serve  the  public  interest,  broadcasters  should  be 
 required  to  develop  mechanisms  to  protect  children.  The 
 interactive  capabilities  of  digital  television  make  it  possible 
 to  require  viewers  to  prove  their  age. 


 1 
261
 Violent  Television  Significantly  Damages  Children 
 Children  learn  from  the  events  that  they  watch  on 
 televisi0n.  l  The  behavior  that  children  witness  is  considered 
 acceptable  behavior  and  may  be  reproduced  in  their  everyday 
 activities.  2  Due  to  this  mimicking  or  social  effect  from 
 watching  violent  television,  people  should  not  be  surprised  to 
 read  about  shootings  at  elementary  and  high  schools  across  the 
 United  States.  3  In  fact,  violence  experienced  by  American 
 students  in  public  schools  is  reaching  epidemic  proportions.  4 


 The  Surgeon  General  has  classified  television  violence  as  a 
 public  health  problem,  and  the  placing  of  the  TV  violence 
 controversy  in  the  same  context  as  the  smoking  and  lung  cancer 
 controversy  accurately  frames  the  issue.  '  The  1972  Surgeon 
 General's  report  concluded  that  violence  on  television  does 
 influence  children  who  view  that  programming  and  does  increase 
 the  likelihood  that  they  will  become  more  aggressive  in  certain 
 ways.  6  In  1982,  a  landmark  report  based  on  ten  years  of  research 
 from  the  National  Institute  of  Mental  Health  concluded  that 


 1  See  Eleanor  Singer,  Reference  Groups  and  Social  Evaluations,  in  SOCIAL 
 PSYCHOLOGY:  SOCIOLOGICAL  PERSPECTIVES  90-  91  (Morris  Rosenberg  &  Ralph  H.  Turner 
 eds.,  1992). 
 2  W.  JAMES  POTTER,  ON  MEDIA  VIOLENCE  43  (1999). 
 3  Id. 
 4  See  M.  Furlong,  G.  Morrison,  &  J.  Dear,  Addressing  School  Violence  as  Part 
 of  Schools'  Educational  Mission,  38  PREVENTING  SCH.  FAILURE  10,  11  (1994). 
 '  See  NEWTON  N.  MINOW  &  CRAIG  L.  LAMAY,  ABANDONED  IN  THE  WASTELAND:  CHILDREN,  TELEVISION, 
 AND  THE  FIRST  AMENDMENT  28  (1995)  . 
 6  Id. 


 2 
262
 violence  on  television  affects  the  aggressive  behavior  of 
 There  is  a  wide  range  of  research  to  support  the 
 detrimental  effects  that  violent  programming  has  on  children.* 
 Further,  the  short-  term  effects  of  viewing  violent  television 
 have  a  longer  lasting  impact  on  younger  children.  g  Longer-  term 
 studies  are  fewer  in  number,  but  the  studies  still  conclude  that 
 children  watching  violent  television  are  more  violent  than  other 
 chi1dren.  l' 


 One  long-  term  study  began  in  1960  by  assessing  the 
 development  of  aggression  in  eight-  year-  olds  in  a  small  upstate 
 New  York  town.  ll  In  the  course  of  the  study,  the  researcher 
 asked  children  to  report  on  their  television  viewing  and  other 
 activities.  12  The  researcher  also  interviewed  teachers  and 
 children  to  determine,  which  children  were  more  aggressive  or 
 less  aggressive.  13 


 7  Id. 
 '  See  T.  VAN  DER  VOORT,  TELEVISION  VIOLENCE:  A  CHILD'S-  EYE  VIEW  16  (1986). 
 '  See  Harris  Pack  &  Glenn  Comstock,  The  Effects  of  Television  Violence  on 
 Antisocial  Behavior,  21  COMM.  R.  3,  516  (1994). 
 lo  See  L.  D.  Eron  &  R.  G.  Slaby,  Introduction,  IN  REASON  TO  HOPE:  A  PSYCHOLOGICAL 
 PERSPECTIVE  ON  VIOLENCE  AND  YOUTH  2  (L.  D.  Eron,  et.  al.,  eds.  1994). 
 l1  See  L.  D.  Eron,  Parent  Child  Interaction,  Television  Violence  and 
 Aggression,  27  AMER.  PSYCHOL.  197,  198  (1982). 
 I2  See  id. 
 I3  See  id. 


 3 
 -____  _.".^..  l_-..----- 
263
 Information  from  parents  about  children's  television 
 viewing  and  the  parent's  home  discipline  and  family  values  were 
 incorporated  into  the  results  of  the  study.  14  At  the  age  of 
 eight,  the  research  revealed  a  relationship  between  a  child's 
 level  of  aggressive  behavior  and  their  television  viewing.  15 


 These  children  were  re-  examined  at  the  age  of  ten  and  eighteen.  16 
 The  research  revealed  that  the  children  who  watched  violent 
 television  at  age  eight  were  more  likely  to  display  violent 
 behavior  at  age  eighteen,  even  though  the  child's  viewing  of 
 violent  television  had  decreased.  17 


 In  the  1980's,  the  study  re-  interviewed  these  children  who 
 were  now  the  age  of  3O.  l*  Interestingly,  there  was  a 
 relationship  between  early  television  viewing  and  arrest  and 
 conviction  for  violent  interpersonal  crimes:  spouse  abuse,  child 
 abuse,  murder,  and  aggravated  assault.  1g  Thus,  there  are  long- 
 term  effects  of  early  television  viewing  on  later  aggressive 
 behavior." 


 I4  See  id. 
 I5  See  id.  at  199. 
 I6  See  id.  at  200-  01. 
 l7  See  id.  at  201. 
 la  See  id.  at  203. 
 I9  See  id. 
 2o  See  id.  at  209. 


 4 
 -....  _  .._  -~  --...,.  ..-  -  -_,,  1  .l___  l_...  ________  .-.._  l.---__--_- 
264
 Current  Efforts  are  Insufficient  to  Protect  Children  From 
 Harmful  Television 
 Over  thirty  years  ago,  the  FCC  began  to  recognize  the 
 detrimental  effects  that  television  could  have  on  children  and 
 requested  that  broadcasters  do  a  better  job  of  protecting  the 
 nation's  children.*  l  Despite  the  request  for  voluntary  action 
 from  the  private  sector,  television  programming  did  not  change 
 significantly.  22  Nor  is  it  likely  that  the  private  sector  will 
 voluntarily  implement  mechanisms  to  prevent  children  from  seeing 
 violent  and  sexually  explicit  television  programming.  23  In  1990, 
 Congress  tried  to  intervene  with  the  passage  of  the  Children's 
 Television  Act.  24  While  this  agency  responded  by  requiring 
 broadcasters  to  air  educational  children's  television,  beyond  a 
 passive  ratings  system,  nothing  has  been  done  to  protect 
 children  from  seeing  other  television  programming.*  ' 


 21  See  Ronald  J.  Krotoszynski,  The  Inevitable  Wasteland:  Why  the  Public 
 Trustee  Model  of  Broadcast  Television  Regulation  Must  Fail,  95  MICH.  L.  REV. 
 2101  (1997). 
 22  Id.  at  2103. 
 23  Id.  at  2104. 
 24  Pub.  L.  No.  101-  437  (1990). 
 25  See  Michael  J.  Palumbo,  Broadcast  Regulation,  Has  the  Market  Place  Failed 
 the  Children,  15  SETON  HALL  LEGIS.  J.  345,  398-  99  (1991). 


 5 
 .-  ._.  --.._  .  I  .--.  I  .  _*__..  _.__-  I____  F.-.---  -----_  l 
 -..,. 
265
 Digital  Television  Can  Help  Child-  proof  Television  Broadcasts 
 Since  digital  television  has  the  capability  to  be 
 interactive,  the  FCC  should  require  that  broadcasters  develop 
 technology  to  "child-  proof"  violent  programs.  26  In  other  words, 
 the  broadcasters  should  receive  a  message  that  the  viewer  is 
 over  the  age  of  eighteen.  This  would  allow  the  broadcaster  to 
 know  that  the  audience  receiving  the  programming  has  reached  an 
 appropriate  age  necessary  to  view  violent  programming. 


 While  educational  television  can  definitely  benefit 
 children,  the  requirements  for  educational  television  do  not 
 stop  children  from  viewing  violent  programs.  There  are  many 
 household  items  that  require  "child-  proofing"  for  the  safety  of 
 the  child.  For  instance,  parents  often  cover  electrical  outlets 
 or  buy  lighters  with  child  safety  features.  Like  these  lighters 
 with  child  safety  features  or  pill  bottles  with  child  safety 
 lids,  violent  television  may  be  rendered  harder  to  access. 
 However,  a  parent  would  h  ave  to  be  able  to  easily  access  the 
 information  with  some  degree  of  privacy.  In  other  words,  the 
 parent  would  send  some  information  over  digital  television  to 


 26  See  GERALD  O'DRISCOLL,  THE  ESSENTIAL  GUIDE  TO  DIGITAL  SET-  TOP  BOXES  AND  INTERACTIVE 
 TELEVISION  2  (1999);  see  also  Eric  Gsell  et.  al  .,  Digital  Television 
 Interoperability  Issues  and  Progress  (visited  Mar.  14,  1999) 
 <http://  www.  attc.  org.>  (explaining  the  technological  feasibility  of  sending 
 messages  from  digital  televisions). 
266
 let  the  broadcaster  know  that  the  viewer  is  over  the  age  of 
 eighteen. 


 Privacy  Concerns 
 While  some  people  may  be  concerned  about  privacy,  this 
 proof  of  age  is  a  minimal  intrusion  that  is  common  to  many  other 
 daily  activities.  A  digital  television  should  only  let  the 
 broadcaster  know  that  the  viewer  is  over  the  age  of  eighteen  and 
 not  collect  any  other  information.  This  could  be  accomplished 
 by  attaching  a  card-  swiping  device  to  each  television  or  issuing 
 a  code  number  to  all  people  over  the  age  of  eighteen. 


 Certainly,  the  public  may  be  inconvenienced  by  the  need  to 
 prove  one's  age  before  watching  violent  television,  but  people 
 have  to  prove  their  age  for  a  multitude  of  activities.  For 
 instance,  a  person  has  to  prove  their  age  before  buying  liquor, 
 buying  tobacco,  buying  pornography,  or  going  to  an  "R"  or  "X" 
 rated  movie.  By  requiring  people  to  prove  that  they  have 
 reached  a  certain  age,  society  is  protecting  children  from 
 harmful  substances  and  information. 


 Since  people  are  conditioned  or  expect  to  prove  their  age 
 before  experiencing  an  explicitly  violent  movie,  the  public  will 
 probably  not  mind  submitting  to  "child-  proofing"  television.  In 


 7 
267
 fact,  broadcasters  could  send  truly  violent  programming  to 
 viewers  over  the  age  of  eighteen  without  being  afraid  that 
 children  would  watch  this  programming.  Thus,  the  public  will 
 appreciate  the  ability  to  be  able  to  view  adult-  oriented 
 programming,  and  the  adults  will  not  mind  this  new  confirmation 
 of  age  before  viewing  these  new  shows  on  digital  television. 


 Conclusion 
 The  FCC  should  take  this  opportunity  in  formulating  new 
 policy  regulations  regarding  digital  television  to  protect 
 children  from  violent  television.  In  order  to  serve  the  public 
 interest,  broadcasters  should  be  required  to  develop  mechanisms 
 to  protect  children.  The  interactive  capabilities  of  digital 
 television  make  it  possible  to  require  viewers  to  prove  their 
 age. 


 Sincerely, 
 Michael  L.  Berman 
268
 _l__  l-_.,--  --..-.  --  I 
 FORMER  STAFF  MEMBER  TO 
 U.  S.  CONGRESSMEN 
 WILLIAM  L.  BILL.  JENKINS 
 JAMES  H  JIMMY  QUILLEN 


 FROM  THE  DESK  OF 
 BEN  M.  ROSE  116  HIGHWOOD  DRIVE 


 KNOXVILLE.  TENNESSEE  37Y20 


 MAR  23  TELEPHONE  (423)  609-  7769  2000  March  17,  2000 


 Ms.  Magalie  Roman  Salas 
 Office  of  the  Secretary 
 Federal  Communications  Commission 
 445  Twelfth  Street,  S.  W.,  TW-  A325 
 Washington,  D.  C.  20554 


 Dear  Ms.  Salas, 
 I  am  writing  this  letter  regarding  the  Notice  ofProposed  Rulemaking,  Public  Interest 
 Obligations  of  Television  Broadcast  Licensees,  January  26,2000,  MM  Docket  No.  99-  360,  FCC 
 99-  390,47  CFR  Part  73,  and  will  comment  on  public  interest  requirements  of  broadcasters  in  the 
 age  of  digital  television,  proposals  by  the  Commission  related  to  enhancing  diversity  in  this  new 
 medium,  and  in  general  access  to  the  media  by  political  candidates. 
 As  a  former  legislative  assistant  to  two  members  of  the  U.  S.  House  of 
 Representatives,  I  have  had  a  general  exposure  to  these  and  other  related  telecommunications  issues. 
 However,  this  comment  is  a  product  of  a  legal  course  on  Administrative  Law  at  the  College  of  Law, 
 University  of  Tennessee-  Knoxville,  Tennessee.  In  this  regard,  it  should  be  noted  that  the  views 
 contained  herein  do  not  necessarily  represent  the  views  of  my  former  employers. 


 INTRODUCTION 
 Before  commenting  on  specific  areas  in  the  summary  of  the  notice  of  inquiry,  I  think 
 it  is  important  to  keep  in  mind  the  general  spirit  of  the  Telecommunications  Act  of  1996.  In  my 
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 Ms.  Magalie  Roman  Salas 
 March  17,  2000  Page  2 


 view,  this  enactment  which  comprehensively  reformed  telecommunications  for  the  first  time  in 
 nearly  70  years  was  meant  to  effectively  deregulate  television,  telephone,  and  other  important 
 communications  industries.  By  deregulating  these  industries,  the  theory  is  that  competition  is 
 increased,  prices  are  reduced,  and  innovations  are  created  more  rapidly. 
 Unfortunately,  this  goal  has  not  yet  become  a  reality.  I  believe  this  result  is  the 
 product  of  three  main  ingredients:  (1)  an  ambiguous  statute  passed  by  the  U.  S.  Congress  and  signed 
 into  law  by  President  William  J.  Clinton,  (2)  a  cadre  of  special  interests  including  various  television 
 broadcasters,  cable  and  satellite  companies,  long  distance  and  local  telephone  communications 
 corporations,  and  numerous  others,  and  (3)  an  activist  federal  agency,  namely  the  Commission, 
 which  aims  to  produce  new  regulations  to  justify  its  bureaucracy  rather  than  enforce  its  current 
 regulations.  Taken  together,  these  have  radically  distorted  the  dream  of  a  truly  deregulated 
 telecommunications  industry,  and  at  best,  our  Nation  can  now  only  hope  for  this  reality  in  the  distant 
 future. 
 As  Chairman  of  the  House  Telecommunications  Subcommittee  W.  J.  Billy  Tauzin 
 recently  remarked,  the  Telecommunications  Act  of  1996  was  made  as  ambiguous  as  possible  to  get 
 it  passed  and  signed  into  law.  Special  interests  do,  have,  and  always  will  influence  the  legislative 
 process  despite  even  the  most  well  intentioned  reforms.  However,  in  my  mind  there  is  simply  no 
 excuse  for  overactive  administrative  agencies  that  are  more  concerned  about  protecting  their  own 


 I  In  reality,  of  course,  nothing  in  Washington,  D.  C.  is  actually  deregulated,  i.  e.  freed 
 from  all  oppressive  government  regulation.  This  is  a  misnomer.  Rather,  these  areas  are  re- 
 regulated  to  better  enhance  these  important  goals  and  at  the  same  time  retain  accountability. 
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 Ms.  Magalie  Roman  Salas 
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 bloated  bureaucracies  than  the  welfare  of  the  American  public.  In  this  vein,  I  would  like  to  comment 
 on  the  public  interest  requirements  of  television  broadcasters  in  this  digital  age,  diversity  proposals, 
 and  enhancing  access  to  the  media  by  political  candidates. 
 PUBLIC  INTEREST  REQUIREMENTS 
 47  U.  S.  C.  9  336(  h)  p  rovides,  Nothing  in  this  section  shall  be  construed  as  relieving 
 a  television  broadcasting  station  from  its  obligation  to  serve  the  public  interest,  convenience,  and 
 necessity  .  .  .  the  television  licensee  shall  establish  that  all  of  its  program  services  on  the  .  .  . 
 spectrum  are  in  the  public  interest.  I  would  encourage  the  Commission  to  read  this  statute  as 
 narrowly  as  possible.  There  is  nothing  in  5  336(  h)  which  imposes  additional  public  interest 
 requirements  on  digital  television,  despite  the  contentions  of  the  Advisory  Committee  on  Public 
 Interest  Obligations  of  Digital  Television  Broadcasters,  People  for  Better  TV,  and  indeed  the  Federal 
 Communications  Commission  itself. 
 Rather,  digital  television  broadcasters  should  be  held  to  the  current  public  interest 
 requirements  for  regular  analog  licenses  and  nothing  more.  This  interpretation  is  within  the 
 boundaries  of  the  statute.  Although  perhaps  beyond  the  scope  of  this  notice  of  inquiry,  I  would 
 encourage  both  the  Congress  and  the  Commission  to  go  beyond  these  boundaries  in  the  original 
 spirit  of  the  Telecommunications  Act  of  1996  and  allow  the  free  market  to  better  influence  these 
 public  interest  requirements  with  a  few  exceptions.  These  exceptions  include  notification  of  the 
 public  in  times  of  emergency  or  disaster,  prohibitions  on  broadcast  of  obscene  material  for  minor 
 viewers,  and  some  limited  services  for  the  disabled. 
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 Ms.  Magalie  Roman  Salas 
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 In  considering  the  public  interest,  I  am  often  aghast  at  the  presumption  by  some  that 
 this  interest  requires  additional  oppressive  regulation  and  not  an  enhancement  of  the  free  market. 
 With  our  current  economic  boom,  it  should  come  as  no  surprise  even  to  the  bureaucracy  of  the 
 federal  government  that  often  the  public  interest  can  best  be  served  by  deregulation  and  allowing  our 
 free  enterprise  system  to  fulfill  the  needs  of  the  polity.  Imagine,  if  you  will,  a  brave  new 
 telecommunications  world  relatively  free  of  regulation.  In  this  case,  digital  television  that  is 
 constrained  only  by  requirements  to  provide  services  for  emergencies,  protect  children,  and  in  a 
 limited  capacity  provide  services  for  the  disabled. 
 A.  Emergency  Services 
 In  paragraph  18  of  the  notice  of  inquiry,  the  Advisory  Committee  Report  is  quoted 
 as  stating,  Broadcasters  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  bandwith  and  not  result  in  undue  additional  burdens 
 or  costs  on  broadcasters.  This  recommendation  is  appropriate  although  due  consideration  needs 
 to  be  given  for  privacy  concerns.  2  Our  federal  government  has  a  responsibility  to  protect  the  public 
 from  harm  as  reflected  in  the  preamble  to  the  U.  S.  Constitution. 


 1  According  to  the  notice  of  inquiry,  the  Advisory  Committee  Report  suggests  new 
 ways  that  digital  technology  can  help  alert  citizens  to  certain  disasters  or  emergencies  including 
 pinpointing  specific  households  or  neighborhoods  at  risk.  While  this  is  certainly  an  admirable 
 goal,  I  believe  that  steps  would  need  to  be  taken  to  protect  the  identities  of  these  individual 
 residences  or  in  some  cases  neighborhoods.  Also,  there  should  be  consideration  given  to  state  and 
 local  agencies  in  performing  these  functions. 
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 Ms.  Magalie  Roman  Salas 
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 It  provides  in  pertinent  part  We  the  people  of  the  United  States,  in  Order  to  .  .  . 
 insure  domestic  Tranquility  .  .  promote  the  general  Welfare  .  .  .  do  ordain  and  establish  this 
 Constitution  for  the  United  States  of  America.  While  providing  emergency  services  could  be 
 performed  in  large  part  by  the  free  market,  I  believe  our  federal  government  should  require 
 broadcasters  to  provide  for  this  service.  The  Commission  should  enact  regulations  after  appropriate 
 comment  from  the  public  and  due  consideration  by  the  broadcast  industry,  to  make  as  a  requirement 
 for  licensure  that  digital  television  broadcasters  provide  some  type  of  emergency  warning  or  service 
 for  disasters  or  other  similar  emergencies.  3 
 B.  Obscenity 
 While  much  ado  has  been  made  recently  about  the  amount  of  violence  on  broadcast 
 television  and  several  remedies  have  been  proposed,  relatively  little  has  been  mentioned  about  the 
 alarming  increase  in  sexual  content  and  depictions  of  sexuality  on  broadcast  television,  not  to 
 mention  cable  and  satellite  subscription  services.  Whether  it  is  NYPD  Blue  or  the  briefly  popular 
 sitcom  Ellen,  our  children  are  being  infiltrated  with  messages  of  sexual  promiscuity  and 
 demoralization  of  sexual  preferences.  As  I  understand  the  current  federal  law,  under  the  Childrens 
 Television  Act  of  1990  broadcasters  are  prohibited  from  airing  programming  that  is  obscene,  and 


 3  I  do  not  mean  that  the  Commission  should  formulate  a  standardized  plan  or  system 
 which  would  be  applied  to  all  digital  broadcasters.  Such  micromanagement  will  only  lead  to 
 inefficiency  and  ultimately  failure  to  achieve  the  stated  goal  of  warning  the  public  about 
 emergencies. 
273
 Ms.  Magalie  Roman  Salas 
 March  17,  2000  Page  6 


 restricted  from  airing  programming  that  is  indecent  during  certain  times  of  the  day.  14  It  is  my 
 belief  that  our  Constitution  also  provides  for  additional  protections. 
 Although  admittedly  not  an  immediate  issue  in  this  notice  of  inquiry,  I  would 
 encourage  the  Commission  to  interpret  this  and  similar  statutes  dealing  with  obscenity  in  the 
 broadest  sense.  Obscenity,  unfortunately,  is  one  of  the  few  areas  that  the  free  market  has  failed  to 
 appropriately  regulate.  Here,  like  with  emergency  services,  is  an  opportunity  for  the  federal 
 government  to  play  a  role.  Such  a  notion  may  be  known  as  moral  capitalism.  The  Commission 
 should  enact  regulations  again  after  appropriate  comment  from  the  public  and  due  consideration  by 
 the  broadcast  industry,  to  make  as  a  requirement  for  licensure  that  digital  broadcasters  eliminate  any 
 indecent  m  obscene  programming  during  any  time  of  the  day  with  regard  to  sexual  content. 
 Such  action  would  be  in  the  public  interest  and  especially  in  the  interests  of  minors  without  proper 
 parental  authorities.  While  I  certainly  have  regard  for  the  rights  contained  within  the  1  *  Amendment, 
 our  children  and  their  future  should  at  times  come  before  mere  expression  and  entertainment. 
 C.  Services  for  the  Disabled 
 Finally,  in  paragraph  24  of  this  notice,  People  for  Better  TV  ask  the  Commission  to 
 emphasize  the    expansion  of  services  to  person  [sic]  with  disabilities.    In  a  similar  vein,  the 
 Advisory  Committee  recommends  that  digital  broadcasters  take    full  advantage  of  new  digital 
 technologies  to  prove  maximum  choice  and  quality  for  Americans  with  disabilities.    Of  course, 
 maximum  choice  will  only  come  from  the  free  market.  However,  I  believe  that  in  this  area  of 


 l  See  paragraph  2  of  this  notice. 
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 Ms.  Magalie  Roman  Salas 
 March  17,  2000 


 Page  7 


 disability  services  there  is  also  a  role  for  the  federal  government  and  which  is  provided  by 
 the  Constitution. 
 Part  of  these  services  are  already  being  offered  by  broadcasters  including  closed 
 captioning  for  the  hearing  impaired.  [  Cllosed  captioning  rules  require  broadcasters  .  .  .  to  caption 
 new  programming  gradually,  according  to  a  phase-  in  schedule,  and  to  caption  75%  of  pre-  rule 
 programming  by  2008.  15  This  policy  is  working  and  should  be  maintained  along  this  schedule.  In 
 addition,  as  I  understand  the  issue  of  closed  captioning,  these  efforts  are  also  being  helped  by  private 
 enterprises  like  Bell  Atlantic  and  others. 
 The  Commission  should  enact  regulations  after  appropriate  comment  from  the  public 
 and  due  consideration  by  the  broadcast  industry,  to  make  as  a  requirement  of  licensure  that  digital 
 television  broadcasters  provide  some  type  of  services  for  individuals  with  disabilities  including 
 ancillary  services.  However,  due  care  should  be  taken  to  prevent  overburdening  broadcasters  with 
 these  requirements  and  locking  them  into  broad  unfunded  federal  mandates  as  are  contained  within 
 the  American  with  Disabilities  Act  of  1990. 
 Providing  emergency  services,  protecting  children  from  obscenity,  and  providing 
 disability  services  should  be  the  only  requirements  imposed  by  the  Commission  in  this  area.  I 


 vigorously  object  to  the  Advisory  Committees  proposal  that  there  be  minimum  public  interest 
 requirements.  The  Commission  should  work  with  the  digital  broadcasters  in  a  flexible  manner,  and 
 in  my  opinion,  minimum  requirements  militate  against  this  important  goal. 


 5  See  paragraph  26  of  this  notice. 
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 Ms.  Magalie  Roman  Salas 
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 DIVERSITY  REQUIREMENTS 
 I  want  to  congratulate  the  Clinton  Administration  for  the  appointment  of  Chairman 
 William  E.  Kennard,  who  as  an  African-  American  has  been  a  role  model  for  all  Americans. 
 However,  I  am  dismayed  by  the  fact  that  this  notice  of  inquiry  contains  a  section  which  amounts  to 
 what  I  fear  may  be  an  advocacy  of  affirmative  action  with  a  foundation  of  race  and  gender-  based 
 preferences.  While  it  is  true  that  47  U.  S.  C.  9  309(  j)  contains  language  directing  the  Federal 
 Communications  Commission  to  formulate  competitive  bidding  rules  which  would  promote  the 
 economic  opportunities  of  racial  minorities  and  women,  I  would  remind  the  Commission  that  this 
 statute  does  not  contemplate  institution  of  an  affirmative  action,  racial  quota,  or  similar  schemeper 
 se.  This  interpretation  would  also  seem  to  go  against  the  spirit  of  the  Administrations  policy  of 
 mend  it,  dont  end  it. 
 However,  I  believe  that  such  a  scheme  was  contemplated  and  proposed  by  the 
 Advisory  Committee.  In  its  report,  the  Committee  recommended  out  of  the  returned  analog 
 spectrum  one  new  6  Mhz  channel  for  each  viewing  community  to  be  reserved  for  noncommercial 
 purposes,  including  educational  programming  directed  at  minority  groups.  One  need  not  look  any 
 further  than  Black  Entertainment  Television  (BET)  to  determine  why  this  is  a  poorly  conceived  idea. 
 As  indicated  by  the  success  of  BET,  the  free  market  should  determine  whether,  if  all,  it  is  in  the 
 public  interest  to  have  channels  dedicated  exclusively  to  minorities  in  our  country. 
 The  Commission  should  not  misinterpret  9  309(  j)  and  enact  regulations  which  are  in 
 essence  affirmative  action  or  racial  quota  programs  that  discriminate  on  the  basis  of  skin  color. 
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 Moreover,  the  Commission  should  explicitly  reject  the  Advisory  Committees  recommendations 
 which  would  require  broadcasters  to  provide  black,  brown,  or  similar  minority  focused 
 television  channels.  Finally,  I  would  caution  the  Commission  to  not  be  overly  influenced  by  special 
 interest  groups  like  La  Raza  and  the  National  Association  for  the  Advancement  of  Colored  People 
 (NAACP)  which  have  their  own  agendas  which  may  arguably  be  different  than  that  of  a  majority 
 of  their  constituencies. 
 CAMPAIGN  REFORM  AND  THE  MEDIA 
 Recently,  the  issue  of  campaign  finance  reform,  although  of  relative  unimportance 
 to  a  majority  of  the  American  electorate  according  to  recent  polling,  has  been  at  the  forefront  of  our 
 public  debate.  Alas,  a  proposal  of  requiring  television  broadcasters  to  essentially  donate  free 
 television  time  for  political  candidates  is  contained  in  this  summary  of  the  notice  of  inquiry.  Similar 
 proposals  are  contained  in  the  famed  and  yet  ill-  conceived  McCain-  Feingold  Campaign  Reform  Bill 
 and  other  legislative  campaign  reform  plans.  I  believe  that  such  reforms  are  shortsighted  and  should 
 be  discouraged  by  the  Commission. 
 Interestingly,  the  area  of  campaign  reform  is  representative  of  the  view  that  the 
 Commission  is  an  activist  federal  agency  which  aims  to  produce  new  regulations  to  justify  its 


 bureaucracy  rather  than  enforce  its  current  regulations.  For  example,  the  Telecommunications  Act 
 of  1934  instituted  the  so-  called  Fairness  Doctrine.  This  doctrine  essentially  provides  that 


 h  Telecommunications  Act  of  1934,  0  3(  h).  During  the  rise  of  the  Rush  Limbaugh 
 Show,  a  conservative  political  radio  program,  many  commentators  felt  that  the  Fairness  Doctrine 
 should  have  been  used  by  the  Commission  to  provide  a  more  liberal  political  view  on  AM  Radio. 
277
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 Page  10 


 broadcasters  should  give  equal  time  to  political  candidates.    However,  the  doctrine  is  infrequently 
 enforced  by  the  Commission  and  complicated  by  the  protections  of  the  1    Amendment.  Most 
 certainly,  this  criticism  is  not  limited  to  this  particular  statute. 
 The  Advisory  Committee  recommended  in  its  report  that  television  broadcasters 
 voluntarily  provide  5  minutes  each  evening  for    candidate-  centered  discourse    30  days  before  an 
 election.  Although  not  officially  recommended,  a  majority  of  the  Committee  desired  to  have 
 broadcasters  required  to  provide  up  to  20  minutes  of  what  is  basically  free  political  airtime.  Once 
 again,  even  in  this  political  campaign  context,  the  best  remedy  is  found  in  the  free  market.  Political 
 candidates  which  raise  money  given  to  them  voluntarily  by  individuals,  corporations,  unions,  and 
 other  special  interests  should  be  allowed  to  spend  it,  if  they  so  choose,  on  television  advertising. 
 Candidates  are  perfectly  free  to  choose  not  to  purchases  advertisements  and  spend  their  resources 
 on  other  media,  and  this  campaign  freedom  should  be  left  unencumbered  by  federal  regulations. 


 7  In  fairness  to  the  Commission,  the  decision  of  the  U.  S.  Supreme  Court  in  FCC  v. 
 A4iclwest  Video  Corp.,  440  U.  S.  689  (1979)  in  the  context  of  cable  television  regulations  should  be 
 noted.  In  regard  to  the  so-  called  fairness  doctrine,  a  majority  of  the  court  stated: 


 The  language  of  9  3(  h)  is  unequivocal;  it  stipulates  that  broadcasters 
 shall  not  be  treated  as  common  carriers.  As  we  see  it,  5  3(  h), 
 consistently  with  the  policy  of  the  Act  to  preserve  editorial  control  of 
 programming  in  the  licensee,  forecloses  any  discretion  in  the 
 Commission  to  impose  access  requirements  amounting  to  common- 
 carrier  obligations  on  broadcast  systems. 


 Midwest  Video  Corp.  at  140  n.  9. 
278
 Ms.  Magalie  Roman  Salas 
 March  17,  2000 
 Page  11 


 In  addition,  such  requirements  raise  similar  1    Amendment  questions  as  does  the  so- 
 called  Fairness  Doctrine.  The  federal  government  and  its  associated  bureaucracy  cannot  determine 
 what  is  fair  and  which  political  candidate  deserves  equal  time.  It  is  a  self-  interested  party  and  will 
 undoubtedly  be  biased  by  those  candidates  which  appreciate  its  needs.  Rather,  the  free  market  and 
 private  enterprise  system  are  the  best  arenas  for  this  campaign  discourse. 
 This  view  is  reflected  by  the  notice  of  inquiry  which  states  that  in  1996  the  National 
 Association  of  Broadcasters  (NAB)  voluntarily  devoted  $148.4  million  to  political  campaigns.  In 
 addition,  private  corporations  like  A.  H.  Belo  provided  free  airtime  for  candidates.  It  is  my  firm 
 belief  that  this  kind  of  activity  can  only  be  supported  by  the  free  enterprise  economic  system  of  our 
 Nation,  and  not  by  so-  called  reform  regulation. 
 The  Commission  should  resist  proposals  that  as  apart  of  licensure  digital  broadcasters 
 voluntarily  provide  free  airtime  to  candidates,  and  it  should  explicitly  reject  any  mandatory 
 requirements  recommended  albeit  not  officially  by  the  Advisory  Committee. 
 CONCLUSION 
 As  a  former  federal  government  employee,  I  realize  that  most  employees  and  even 
 federal  agencies  have  the  best  intentions  at  heart.  In  the  words  of  one  of  my  former  employers,  The 


 people  of  government  are  good,  it  is  just  the  bureaucracy  that  gives  us  a  bad  result.  It  is  my  hope 
 that  the  Commission  will  seriously  consider  these  brief  comments  and  more  importantly  the  original 
 drafters  intent  of  the  Telecommunications  Act  of  1996. 
279
 Ms.  Magalie  Roman  Salas 
 March  17,  2000 
 Page  12 


 The  Commission  should  work  with  broadcasters  to  ensure  that  as  a  requirement  for 
 licensure  digital  television  broadcasters  provide  some  kind  of  emergency  services,  protection  of 
 children  against  obscenity,  and  limited  services  for  the  disabled.  However,  the  Commission  should 
 explicitly  reject  proposals  for  affirmative  action  and  free  airtime  in  the  brave  new  world  of  digital 
 television 


 Sincerely, 


 --  -.-  -...  .-_  _  .  .-  ..,..___  l_  l  I__  - 
280
 To:  R~  a3v&-  J  Magalie  Roman  Salas,  Secretary,  Federal  Communications  Commission 
 From:  Darren  Mitchell  MAR  2  3  20(-&  j 
 cc:  Professor  Glenn  H.  Reynolds 
 Date:  March  17,200O 
 Re:  Proposed  Rulemaking  (Docket  No.  FCC  99-  390),  Public  Interest  Obligations  of 
 Television  Broadcast  Licensees,  65  Fed.  Reg.  4211  (January  26,200O). 


 Secretary  Salas: 
 I  am  a  third-  year  law  student  at  the  University  of  Tennessee  College  of  Law,  and  I  am  writing  to 
 add  my  voice  to  the  public  debate  over  the  proper  scope  of  public  interest  activities/  obligations 
 required  of  broadcasters  in  the  digital  television  age.  There  are  a  number  of  topics  in  this  area 
 that  I  would  like  to  comment  on;  such  as  childrens  programming,  increasing  diversity  in  the 
 broadcast  industry,  and  making  television  more  accessible  to  people  with  disabilities.  However, 
 in  the  interests  of  brevity  I  will  confine  myself  to  commenting  on  that  section  of  the  proposed 
 rulemaking  dealing  with  enhancing  political  discourse. 


 The  first  question  one  might  ask  is  whether  enhancing  political  discourse  is  a  proper,  or  even 
 desirable,  role  for  television  broadcasters.  However,  it  may  be  a  little  late  in  the  process  to  ask 
 this  question  since  [  tlhe  Commission  has  long  interpreted  the  statutory  public  interest  standard 
 as  imposing  an  obligation  on  broadcast  licensees  to  air  programming  regarding  political 
 campaigns.  65  Fed.  Reg.  42  11,4216  (January  26,200O).  Additionally,  one  might  wonder  if 
 airing  programming  regarding  political  campaigns  necessarily  promotes  or  enhances  political 
 discourse.  If  the  programming  in  question  is  a  debate  between  candidates,  or  a  one-  on-  one 
281
 interview  of  a  candidate  by  a  journalist,  or  a  news  report/  documentary  about  a  political  issue  or 
 campaign,  or  similar  programming,  then  such  programming  most  likely  does  enhance  political 


 discourse.  On  the  other  hand,  if  the  programming  in  question  involves  paid  political 
 commercials,  or  the  quadrennial  love-  ins  of  the  respective  national  parties,  then  the  political 
 discourse,  although  certainly  affected,  is  by  no  means  enhanced.  However,  the  question 


 presented  is  not  whether  television  broadcasters  should  be  required  to  enhance  political 
 discourse,  but  rather  to  what  extent  television  broadcasters  should  be  required  to  enhance 
 political  discourse  and  what  form  such  enhancement  will  take.  Specifically,  whether,  and  how, 
 broadcasters  public  interest  obligations  can  be  refined  to  promote  democracy  and  better  educate 
 the  voting  public.  65  Fed.  Reg.  42  11,42  16  (January  26,200O). 


 The  question  whether  broadcasters  public  interest  obligations  can  be  refined  is,  of  course, 
 distinct  from  the  question  whether  said  obligations  should  be  refined.  The  simple  answer  is  that 
 any  and  all  products  of  human  endeavor  can  be  refined.  For  example,  Article  V  of  the  United 
 States  Constitution  provides  a  mechanism  whereby  the  Constitution  can  be  amended  when 
 deemed  necessary.  Amendment  is  a  type  of  refinement,  and  the  Constitution  has  been  so 
 refined  twenty-  seven  times  to  date.  Therefore,  the  public  interest  obligations  in  question  can 
 undoubtedly  be  refined  to  promote  democracy  and  educate  the  voting  public,  and  I  suggest  a  few 


 such  refinements  below.  However,  whether  broadcasters  public  interest  obligations  can  be  so 
 refined  in  such  a  way  as  to  take  advantage  of  the  unique  aspects  and  capabilities  of  digital 


 television  is  a  separate  question  entirely. 


 2 
 .  __  ^  ._.___  ..--  ~-  I  .--.- 
282
 I  am  neither  a  digital  television  expert,  nor  an  authority  on  communications  law.  Therefore,  I  am 
 not  in  a  position  to  recommend  refinements  specific  only  to  digital  television.  At  least,  not  in  the 
 area  of  promoting  democracy  or  educating  the  voting  public.  The  suggestions  that  follow  are  as 
 applicable  to  analog  television  broadcasters  as  to  digital  television  broadcasters,  with  one 
 exception.  Digital  broadcasters  can  multicast  separate  channels  simultaneously  over  the  same 
 assigned  frequency.  Whatever  rules  are  adopted  to  enhance  political  discourse  should  ensure 
 that  broadcasters  are  prevented  from  segregating  all  of  their  political  programming  on  one 
 program  stream.  Instead,  broadcasters  should  be  required  to  offer  such  programming  on  each  of 
 its  DTV  program  streams.  Furthermore,  such  programming  should  not  be  cumulative.  For 
 example,  if  the  Commission  were  to  adopt  the  Advisory  Committees  recommendation  that 
 broadcasters  provide  five  minutes  each  night  between  5:  00  p.  m.  and  11:  35  p.  m.  for  candidate- 
 centered  discourse  thirty  days  before  an  election,  then  broadcasters  should  be  required  to 
 provide  five  minutes  per  night  on  each  program  stream  rather  than  five  minutes  per  night  spread 
 out  over  multiple  program  streams.  If  a  broadcaster  multicasts  over  five  program  streams 
 simultaneously,  then  said  broadcaster  would  have  to  provide  five  minutes  of  candidate-  centered 
 discourse  on  each  program  stream;  not  one  minute  per  program  stream  for  a  total  of  five 
 minutes. 


 A  stated  goal  of  the  proposed  rulemaking  is  to  improve  candidate  access  to  television  and  thus 
 improve  the  quality  of  political  discourse.  I  believe  that  the  premises  underlying  this  goal  are 
 faulty  in  that  there  is  no  evidence  that  accomplishing  the  former  will  necessarily  result  in  the 
 latter.  In  fact,  there  is  considerable  evidence  to  the  contrary  as  demonstrated  by  the  proliferation 
 of  negative  attack  ads  in  recent  political  campaigns.  Be  that  as  it  may,  the  following  suggestions 


 3 
283
 are  made  under  the  assumption  that  greater  candidate  access  to  television  is  a  desirable  objective 
 and  that  such  increased  access  will  have  positive  effects  on  the  political  discourse  of  the  nation. 


 Currently,  television  broadcasters  are  required  to  provide  equal  access  to  candidates  in  political 
 campaigns.  If  they  provide  airtime  to  one  candidate,  then  they  must  provide  equal  time  to  the 


 opposition  candidate.  47  U.  S.  C.  A.  5  315(  a).  This  rule  is  subject  to  various  exceptions  such  as 
 coverage  of  a  candidate  in  a  bona  fide  news  story.  Additionally,  the  rates  that  broadcasters  can 
 charge  political  candidates  are  limited.  47  U.  S.  C.  A.  0  3  15(  b).  I  am  not  aware  of  any  proposal  to 


 refine  or  eliminate  the  equal  access  provision.  Instead,  the  majority  of  reform  efforts  focus  on 
 charging  candidates  for  airtime.  Specifically,  whether  candidates  for  public  office  should  be 
 charged  for  use  of  the  public  airwaves  at  all.  The  present  system,  so  the  argument  goes,  favors 
 the  well-  financed  candidate  at  the  expense  of  underfunded  or  marginal  candidates.  As  a  result, 
 there  have  been  numerous  proposals  to  level  the  playing  field  by  providing  free  an-  time  to 
 candidates.  The  challenge,  as  I  see  it,  is  how  to  provide  free  airtime  in  such  a  way  that  will 
 reasonably  guarantee  that  the  political  discourse  is  enhanced.  Free  airtime  to  deliver  negative 
 attack  ads  do  not  enhance  political  discourse.  Nor,  at  the  other  extreme,  do  political  ads  that 
 merely  extol  the  qualities  and  patriotism  of  the  candidate  without  addressing  the  issues. 


 There  are  two  constants  in  political  campaigns  whether  on  the  local,  state,  or  national  level.  The 
 first  constant  is  that  the  best  way  to  judge  the  relative  strengths  and  weaknesses  of  the  candidates 
 is  to  have  the  candidates  debate  the  issues.  People  just  naturally  like  to  comparison  shop  before 
 deciding  on  a  purchase.  In  this  respect,  choosing  a  candidate  for  public  office  is  no  different 
 than  choosing  a  personal  computer  or  a  washing  machine.  [  Tlhe  ultimate  good  desired  is  better 


 4 
 .._-  l-._--.  .~  --,-~.  .-_  .-  -  ..---. 
284
 reached  by  free  trade  in  ideas  .  .  .  the  best  test  of  truth  is  the  power  of  the  thought  to  get  itself 
 accepted  in  the  competition  of  the  market.  Abrams  v.  United  States,  250  U.  S.  616,630,40 
 S.  Ct.  17,  22,  63  L.  Ed.  1173  (1919)  (Holmes,  J.,  dissenting).  Justice  Holmes  celebrated 
 marketplace  of  ideas  is  just  as  applicable,  if  not  more  applicable,  to  political  campaigns  as  any 
 other  area  of  free  speech.  As  is  apparent  to  anyone  who  has  witnessed  a  political  campaign  in 


 recent  years,  candidates  will  not  address  the  issues  unless  forced  to,  and  sometimes  not  even 
 then.  If  left  to  their  own  devices,  candidates  will  produce  an  endless  parade  of  advertisements 
 attacking  their  opponent  or  praising  their  own  character.  However,  a  debate  forces  candidates  to 
 address  the  issues,  or  at  least  a  debate  comes  closest  to  forcing  candidates  to  address  the  issues 
 than  anything  else  short  of  the  rack  or  sodium  pentothal.  Therefore,  public,  contested  political 
 debates  enhance  political  discourse,  and  should  be  encouraged  as  much  as  possible. 


 Which  brings  us  to  the  second  constant  in  political  campaigns.  The  front-  runner  will  do 
 everything  in  his  or  her  power  to  avoid  a  debate  on  the  issues  because  he  or  she  has  everything  to 
 lose  and  nothing  to  gain.  If  forced  to  debate,  the  front-  runner  typically  will  demand  concessions 
 for  agreeing  to  participate.  These  concessions  include,  but  are  not  limited  to,  location,  length  of 
 debate,  format  of  debate,  scope  of  questions,  time  provided  for  answers,  and  types  of  questions. 
 Conversely,  those  candidates  who  trail  in  the  polls  will  struggle  mightily  to  force  a  debate 
 because  they  have  everything  to  gain  and  nothing  to  lose  by  debating  the  front  runner.  These 
 candidates  will  accede  to  almost  any  conditions  demanded  by  the  front-  runner.  The  result  is 
 fewer  debates,  or  debates  so  limited  in  scope  and  format  as  to  not  deserve  to  be  called  a  debate. 
 Consequently,  the  best  forum  available  to  enhance  political  discourse  and  educate  the  voting 
 public  is  seldom  utilized. 
285
 The  dilemma  is  clear,  The  public  airwaves,  whether  provided  free  of  charge  or  purchased,  will 
 be  used  by  candidates  in  ways  that  do  not  enhance  political  discourse.  Debates,  the  best 
 available  forum  for  enhancing  political  discourse,  are  seldom  used,  or  used  under  less  than 
 optimal  conditions.  Broadcasters  can  not  regulate  the  content  of  political  commercials,  even  if 
 the  airtime  is  provided  free  of  charge.  Therefore,  we  can  not  force  candidates  to  stop  running 


 negative  ads.  Furthermore,  a  candidate  can  not  be  required  to  participate  in  a  debate.  One 
 possible  solution  to  both  problems  is  to  exchange  airtime  for  participation  in  political  debates. 
 Candidates  who  participate  in  debates  will  receive  free  airtime  on  a  pre-  determined  schedule. 
 For  example,  a  candidate  who  participates  in  a  debate  will  receive  five  minutes  of  free  airtime 
 each  night  between  5:  00  p.  m.  and  11:  35  p.  m.  for  a  specified  period  of  time.  Broadcasters  will 
 provide  additional  free  airtime  for  each  subsequent  debate  in  which  a  candidate  participates. 
 Under  this  proposal  everybody  wins.  Broadcasters  fulfill  part  their  public  interest  obligation, 
 candidates  receive  free  airtime,  which  they  are  free  to  utilize  as  they  wish,  and  the  public  gains  a 
 greater  understanding  of  the  various  candidates  views  on  the  issues. 


 Of  course  such  a  plan  has  the  potential  to  overwhelm  individual  broadcasters  and  convert  them 
 into  virtual  C-  SPAN  clones.  All  politics,  all  of  the  time.  If  individual  broadcasters  are  required 
 to  provide  free  airtime  to  every  candidate  for  political  office  from  dog  catcher  to  President  of  the 
 United  States,  then  there  will  be  very  little  time  remaining  for  other  programming.  Obviously, 
 some  limits  are  necessary.  Perhaps  only  campaigns  for  certain  public  offices  will  be  eligible  for 
 free  airtime,  or  the  amount  of  free  airtime  will  be  limited.  The  goal  is  to  increase  participation  in 
 debates  and  thereby  improve  political  discourse,  not  to  provide  free  airtime  to  every  candidate 
 for  public  office. 
286
 In  addition,  the  program  outlined  above  may  be  subject  to  attack  on  First  Amendment  grounds. 
 Inevitably  a  situation  will  arise  in  which  a  candidate  for  public  office  will  pay  for  airtime 
 provided  free  to  other  candidates  for  the  same  office.  The  resolution  of  such  disputes  will,  of 


 course,  be  dependent  upon  the  facts  of  each  case,  and  it  is  impossible  to  anticipate  every  situation 
 that  may  arise.  Suffice  it  to  say  that  if  the  proposed  rule  is  drafted  carefully  so  that  every 
 candidate  for  a  given  public  office  is  afforded  the  same  opportunity  to  participate  in  a  given 
 debate  and  thereby  receive  free  airtime,  then  such  incidents  will  be  rare. 


 Enhancing  political  discourse,  promoting  democracy,  and  educating  the  voting  public  are 
 important  and  worthy  goals  for  broadcasters,  and  other  mass  media,  to  undertake,  voluntarily  or 
 otherwise.  Furthermore,  it  is  incumbent  upon  government  to  promote  these  goals  whenever  and 
 however  possible.  Having  said  that,  it  is  important  to  stress  that  stating  an  objective  is  not  the 
 same  as  accomplishing  it.  Vague  mandates  and  empty  platitudes  do  not  make  sound,  or 
 workable,  policy.  Providing  a  forum  for  political  discourse  is  ineffectual  unless  the  forum  is 
 used  for  political  discourse,  and  not  for  ad  hominem  attacks,  or  self-  aggrandizing  political 
 puffery.  However,  regulating  the  content  of  speech  is  as  abhorrent  and  wrong-  headed  as 
 censoring  speech  in  its  entirety.  But  if  candidates  for  public  office  are  allowed  to  use  the  public 
 airwaves  for  political  discourse,  then  surely  it  is  possible  to  promulgate  simple,  common  sense 
 rules  to  ensure  that  at  least  some  political  discourse  occurs.  I  believe  that  exchanging  airtime  for 
 participation  in  debates  is  such  a  rule. 


 Respectfully, 
 Dan-  en  Mitchell 
 7 
 ._  -.--.---.--  _--_-  l_  l--  l-  l-  l 
287
 BEFORE  THE  FEDERAL  COMMUNICATIONS  COMMI##@    3  2ooo 
 RE:  Public  Comments  on  Public  Interest  Obligations  of 
 Television  Broadcast  Licensers,  MM  Docket  No.  99-  360,  FCC  99-  390 


 Introduction  and  Background 
 This  comment  is  in  response  to  the  notice  of  proposed  rulemaking,  published 


 January  26,2000,  with  summary  of  the  Commissions  Notice  of  Inquiry,  FCC  99-  390, 
 adopted  December  15,  1999.  Notice  of  Proposed  Rulemaking,  65  Fed.  Reg.  42  1  l-  01 
 (Jan.  26,200O).  The  FCC  noted  that  it  was  seeking  comment  on  how  broadcasters  can 
 best  serve  the  public  interest  as  they  transition  to  digital  television  transmission 
 technology. 
 As  a  second  year  law  student  at  the  University  of  Tennessee,  I  will  tailor  this 
 comment  specifically  as  a  general  legal  and  public  policy  response  to  the  Commissions 
 request  for  discussion  regarding  the  extent  that  broadcasters  public  interest  obligations 
 can  be  refined  to  promote  and  enhance  political  discourse.  There  have  been  legislative 
 proposals,  highlighted  in  the  Notice  of  Inquiry  supplement  to  the  Notice  of  Proposed 
 Rulemaking  at  42  16,  and  include  providing  qualified  political  candidates  with  limited 
 amounts  of  free  access  to  the  airwaves  as  part  of  broader  campaign  finance  reforms.   
 In  effect,  I  contend  that  the  Commission  has  constitutional  authority  to  regulate 
 broadcasters  dissemination  of  political  information.  With  such  authority,  the  FCC 
 should  embrace  mandatory  measures,  including  free  air  time  to  candidates  of  greater 
 duration  than  the  five  minute  sound  bites  proposed  by  the  Advisory  Committee  on 
 Public  Interest  Obligations  of  Television  Broadcasters  (  PIAC). 


   See  S.  25,  105th  Cong.,  1st.  Sess.  102  (1997)  (providing  qualified  Senate  candidates  with  30  minutes  of 
 free  broadcast  time  except  if  there  are  more  than  two  candidates,  in  which  case  all  the  candidates  together 
 get  a  total  of  60  minutes  free  time). 


 1 
288
 Constitutionality  of  FCC  Regulation  of  Political  Discourse 
 In  the  FCCs  adoption  of  Notice  of  Inquiry  in  December  1999,  FCC  99-  390, 


 Commissioner  Harold  Furchtgott-  Roth  chastised  the  Commission  for  its  misguided 
 application[]  of  our  public  interest  authority  to  improve  political  discourse  through  free 
 air  time  to  political  candidates.  He  suggests  that  such  proposals  exceed  the  agencys 
 authority  in  that  they  may  be  unconstitutional  and  simply  bad  policy  because  such  a 
 proposal  would  unduly  burden  the  industry  by  imposing  a  hidden  tax.  2 
 Congress  consistently  has  required  that  broadcast  licenses  be  assigned  and 
 renewed  on  the  basis  of  the  public  interest,  convenience,  and  necessity.  3  Broadcasters, 
 therefore,  are  public  trustees  with  a  fiduciary  obligation  to  serve  the  public  through  their 
 programming.  As  Chief  Justice  Burger  wrote,  then  acting  as  judge  for  the  D.  C.  Circuit,  a 
 broadcaster  seeks  and  is  granted  the  free  and  exclusive  use  of  a  limited  and  valuable  part 
 of  the  public  domain;  when  he  accepts  that  franchise  it  is  burdened  by  enforceable  public 
 obligations....[  A]  broadcast  license  is  a  public  trust  subject  to  termination  for  breach  of 
 duty.  4 
 Although  every  broadcast  television  and  radio  station  in  this  country  operates 
 under  these  valuable  licenses  to  use  this  public  property,  broadcasters  are  not  required  to 
 pay  for  them.  In  response,  the  Commission  is  delegated  the  authority  to  supervise  the 


 2  FCC  Notice  of  Inquiry,  FCC  99-  390,  Dec.  20,  1999  at  65-  80. 
 3  FCC  Notice  of  Inquiry,  FCC  99-  390,  Dec.  20,  1999;  47  U.  S.  C.  A.  307(  c)(  1). 
 4  Charles  W.  Logan,  Jr.  Getting  Beyond  Scarcity:  A  New  Paradigm  for  Assessing  the  Constitutionality  of 
 Broadcast  Regulation,  85  Calif.  L.  Rev.  1687  (Dec.  1997)  (quoting  Office  of  Communication  of  United 
 Church  of  Christ  v.  FCC,  359  F.  2d  994.1003  (D.  C.  Cir.  1966)) 


 2 
289
 traffic  of  the  communications  airwaves.  5  The  statutory  public-  interest  mandate  puts 
 upon  the  Commission  the  burden  of  determining  the  composition  of  that  traffic.  6 
 While  the  Commission  has  eliminated  a  number  of  programming  rules, 
 broadcasters  still  must  affirmatively  seek  to  promote  public  interest  programming. 
 Broadcasters  have  the  general  requirement  to  air  programming  responsive  to  the  needs 
 and  interests  of  their  local  communities.  7 
 For  example,  both  Congress  and  the  FCC  have  established  rules  to  ensure  greater 
 access  to  the  airwaves  for  political  candidates.  In  particular,  broadcasters  must  provide 
 reasonable  access  to  candidates  for  federal  public  office  and  equal  opportunities  to 
 opposing  candidates  of  all  candidate-  users  of  airtime.*  The  Communications  Act  also 
 limits  the  advertising  rates  candidates  may  be  charged  to  the  lowest  unit  charge  paid  by 
 the  stations  most  favored  commercial  advertisers.  g 
 Although  the  FCCs  regulatory  regime  has  been  in  place  for  nearly  a  centuryO,  as 
 Charles  Logan  indicates,  it  is  primarily  premised  on  the  constitutionally  tenuous 
 scarcity  rationale  set  forth  in  Red  Lion  Broadcasting  Co.  v.  FCC.  In  this  1969 
 decision,  the  Supreme  Court  held  that  the  Federal  Communications  Commission  (FCC) 
 did  not  violate  the  First  Amendment  in  requiring  a  radio  or  television  station  to  give  reply 
 time  to  people  who  were  the  subject  of  a  personal  attack  or  political  editorial  aired  by  the 
 station.  In  reaching  this  decision,  the  Court  emphasized  that  there  are  substantially  more 


 5  Logan  1687  (citing  Communications  Act  of  1934  $  603;  NBC  v.  United  States,  319  U.  S.  190,215 
 (1943).) 
 6  Id.  at  216. 
 7  En  Bane  Programming  Inquiry,  44  F.  C.  C.  2303,23  12  (1960). 
 *  47  U.  S.  C.  312(  a)(  7),  315(  a)  (1994);  47  C.  F.  R.  73.1941,73.1944  (1996) 
 947  U.  S.  C.  315(  b)  (1994);  47  C.  F.  R.  73.1942  (1996). 
 lo.  For  history  of  broadcast  regulation,  see  Mark  S.  Fowler  &  Daniel  L.  Brenner,  A  Marketplace  Approach 
 to  Broadcast  Regulation,  60  Tex.  L.  Rev.  207,2  13-  17  (1982). 


 3 
290
 individuals  who  want  to  broadcast  than  there  are  frequencies  to  allocate,  and  because  of 
 the  scarcity  of  radio  frequencies,  the  Government  is  permitted  to  put  restraints  on 
 licensees  in  favor  of  others  whose  views  should  be  expressed  on  this  unique  medium.  12 


 The  scarcity  rationale  has  been  criticized  for  years  since,  for  example,  newspaper 
 publishing  enjoys  full  First  Amendment  protection.  l3  Thus,  as  Logan  contends,  the 
 analytical  weaknesses  behind  Red  Lions  central  rationale  has  led  to  its  attack  over  the 
 years  by  academia,  politicians,  the  courts,  and  even  the  FCC  led  by  a  Republican 
 chairman.  l4  A  number  of  Justices  have  indicated  that  they  would  like  to  reexamine  the 
 validity  of  Red  Lion,  though  never  specifically  doing  s0.  l  The  Court,  however,  declined 
 to  apply  the  scarcity  rationale  to  the  Internet,  distinguishing  it  from  the  broadcasting 
 medium  and  its  history  of  regulation.  16  However,  Congress  still  endorses  spectrum 
 scarcity  to  justify  broadcast  regulation.  l7 
 It  is  in  this  regulatory  framework  that  Commissioner  Furchtgott-  Roth  questions 


   Charles  W.  Logan,  Jr.  Getting  Beyond  Scarcity:  A  New  Paradigm  for  Assessing  the  Constitutionality  of 
 Broadcast  Regulation,  85  Calif.  L.  Rev.  1687,  1746  (Dec.  1997),  (citing  395  U.  S.  367  (1969X) 
 I2  Id.  at  388,  390. 
 I3  Miami  Herald  Publishing  Co.  v.  Tomillo,  418  U.  S.  241  (1974). 
 l4  Thomas  W.  Hazlett,  The  Rationality  of  the  U.  S.  Regulation  of  the  Broadcast  Spectrum,  33  J.  L.  &  Econ. 
 133  (1990)  (arguing  that  federal  regulatory  decisions  were  designed  to  generate  profits  for  influential 
 constituents.);  The  Dole  Goal:  Get  Government  out  of  the  way,  Broadcasting  &  Cable,  Oct.  14,  1996,  at 
 29  (quoting  presidential  candidate  Bob  Dole  as  saying,  Sure,  broadcasters  should  enjoy  the  same  First 
 Amendment  rights  as  publishers.  I  know  my  opponent  doesnt  agree,  but  that  is  because  he  subscribes  to 
 the  outdated  scarcity  principle.    Imagine  telling  broadcasters  that  they  cant  have  equal  footing  with 
 publishers  because  there  is  a  scarcity  of  licenses,  even  though  we  all  know  there  are  far  more  TV  and  radio 
 stations  in  any  given  market  than  there  are  newspapers.);  Telecommunications  Research  &  Action  Ctr.  v. 
 FCC,  801  F.  2d  501,  508  (D.  C.  Cir.  1986)  (Judge  Robert  Bork  argued  that  since  scarcity  is  a  universal  fact 
 for  all  economic  goods,  including  newspapers  and  broadcasting,  it  can  hardly  explain  regulation  in  one 
 context  and  not  another.);  Syracuse  Peace  Council,  2  F.  C.  C.  R.  5043,5052-  58  (1987). 
 I5  CBS,  Inc.  v.  Democratic  Nat1  Comm.,  412  U.  S.  94,  154  (1973)  (Douglas,  J.,  concurring)  (stating  that  he 
 would  not  support  the  scarcity  rationale.);  FCC  v.  League  of  Women  Voters,  468  U.  S.  364,  376  n.  11 
 (1984)  (recognizing  that  the  scarcity  principle  has  come  under  criticism  but  refusing  to  overturn  it  and 
 undo  50  years  of  FCC  regulation  without  signal  from  the  FCC  or  Congress.);  Turner  Broad.  Svs.,  Inc.  v. 
 a,  114  S.  Ct.  2445  (1994);  Denver  Area  Educ.  Telecomm.  Consortium,  Inc.  v.  FCC,  116  S.  Ct.  2374 
 (1996). 
 l6  Reno  v.  ACLU,  117  S.  Ct.  2329,2344-  45  (1997). 
 I7  S.  Rep.  No.  227-  101,  at  lo-  16  (1989)  (enacting  Childrens  Television  Act  over  the  Bush  administrations 
 First  Amendment  objections.) 


 4 


 .  _  I  .  .  .  ..--  -.-  *  I  -.  -_.-.  .--__-~-  - 
291
 the  constitutionality  of  the  FCCs  authority  to  regulate  political  discourse. 
 Consequently,  as  Charles  W.  Logan,  Jr.  asserts,  the  Supreme  Court  will  have  to  address 
 this  unstable  scarcity  and  First  Amendment  legacy  the  FCC  has  inherited  as  the  basis 
 for  its  regulatory  regime. 
 Logan  suggests  that  the  FCCs  regulatory  broadcast  regime  can  survive  First 
 Amendment  constitutional  scrutiny.  He  asserts  that  the  Supreme  Courts  public  forum 
 doctrine20  provides  a  basis  for  treating  broadcasting  as  a  limited  public  forum  since 
 broadcasting  waves  are  public  property  licensed  for  use  and  not  ownership  by  private 
 entities.  Consequently,  regulation  would  be  upheld  so  long  as  it  is  reasonable  and 
 viewpoint  neutral. 
 He  posits  two  theories  to  justify  this  rationale.  Primarily,  the  First  Amendment 
 enables  democratic  self-  government  by  providing  the  means  of  generating  robust  and 
 open  debate  on  public  issues.  Consequently,  the  government  may  play  an  active  role  in 
 to  generate  and  ensure  that  the  public  debate  is  open  and  robust.  For  this  proposition,  he 
 relies  heavily  on  the  works  of  professors  Cass  Sunstein2  and  Owen  Fiss22.  In  effect, 


 I8  FCC  99-  390  at  70-  7  1  (Furchtgott-  Roth  separate  statement  of  dissent  and  concurrence). 
 I9  Charles  W.  Logan,  Jr.  Getting  Beyond  Scarcity:  A  New  Paradigm  for  Assessing  the  Constitutionality  of 
 Broadcast  Regulation,  85  Calif.  L.  Rev.  1687,  1746  (Dec.  1997). 
 *  Logan  gives  the  following  analysis  of  the  pertinent  category  of  public  forums  applicable  to  FCC 
 broadcast  regulations:  The  second  category  is  designated  public  forums,  i.  e.,  public  property  which  the 
 State  has  opened  for  use  by  the  public  as  a  place  for  expressive  activity.    Perrv  Educ.  Assn  v.  Perrv  Local 
 Educators  Assn,  460  U.  S.  37,45  (1983).  There  are  two  kinds  of  designated  public  forums:  limited  and 
 unlimited.  A  designated  public  forum  of  unlimited  character  is  generally  open  to  all  comers,  such  as  a 
 municipal  auditorium  that  a  town  has  permitted  the  general  public  to  use.  Southeastern  Promotions,  Ltd.  v. 
 Conrad.  420  U.  S.  546,555  (1975).  A  limited  designated  public  forum,  by  contrast,  is  created  for  a  limited 
 purpose  such  as  use  by  certain  groups,...  or  for  the  discussion  of  certain  subjects.  Perrv,  460  U.  S.  at  46  n.  7 
 (citing  Widmar  v.  Vincent,  454  U.  S.  263  (1981)  (student  groups)  and  City  of  Madison  Joint  Sch.  Dist.  v. 
 Wisconsin  Pub.  Employment  Relations  Commn.  429  U.  S.  167  (1976)  (school  board  business)).  .  . 
 Limited  public  forums  receive  a  lower  level  of  scrutiny:  A  recent  decision  by  the  Court  holds  that  content- 
 based  restrictions  on  speech  in  limited  public  forums  are  permissible  provided  they  are  reasonable  in  light 
 of  the  purpose  served  by  the  forum  and  do  not  discriminate  against  speech  on  the  basis  of  its  viewpoint.   
 Rosenberger  v.  Rector  &  Visitors  of  the  Univ.  of  Va.,  I  15  S.  Ct.  25  IO,  25  I7  (1995)  (quoting  Cornelius,  473 
 U.  S.  at  804-  06).  85  Calif.  L.  Rev.  at  170809. 
 *  Cass  R.  Sunstein,  Democracy  and  the  Problem  of  Free  Speech  5  (1993);  (2d  ed.  1995). 
292
 these  authors  posit  that  the  First  Amendment  emphasizes  deliberate  functions  of  free 
 speech  as  essential  to  democracy.  However,  often  the  forces  of  majoritarian  tyranny  and 
 the  markets  indifference  to  public  interest  programming23  assert  pressures  for  direct 
 government  intervention  to  promote  the  First  Amendment  political  candor  and  thus 
 democracy. 
 The  Supreme  Court  has  ratified  the  importance  of  broadcasting  political  discourse 
 to  the  preservation  of  First  Amendment  democracy.  The  Supreme  Court  upheld  the 
 constitutionality  of  the  lowest  unit  charge  for  television  advertising  and  reasonable  access 
 to  the  medium  provisions  for  political  candidates.  According  to  the  Court,  Section 
 3  12(  a)(  7)...  makes  a  significant  contribution  to  freedom  of  expression  by  enhancing  the 
 ability  of  candidates  to  present,  and  the  public  to  receive,  information  necessary  for  the 
 effective  operation  of  the  democratic  process.  124 
 Secondly,  Logan  argues  that  broadcasters  receive  preferential  treatment  in  being 
 granted  valuable  rights  to  use  the  regulatory  regime  that  other  mediums  do  not  enjoy. 
 These  valuable  benefits  are  bestowed  on  broadcasters  at  the  exclusion  of  others  in  return 


 *  Owen  M.  Fiss,  The  Irony  of  Free  Speech  2-  3  (1996);  Owne  M.  Fiss,  Why  the  State?,  100  Harv.  L.  Rev. 
 781  (1987). 
 u  These  effects  can  be  exacerbated  in  broadcasting  markets,  which  earn  revenue  through  selling 
 advertising  rather  than  through  subscriber  fees.  To  attract  advertisers,  a  broadcaster  places  a  premium  on 
 programming  that  generates  the  largest  possible  audience  and  targets  preferred  demographic  groups.  The 
 nature  of  this  market  can  result  in  the  undersupply  of  certain  types  of  socially  beneficial  programming,  as 
 well  as  a  lack  of  diversity  in  programming.  Government  intervention  tries  to  correct  these  market 
 imperfections  consistent  with  the  First  Amendment.  Logan  at  1720. 
 24  Logan  1687  (quoting  CBS,  Inc.  v.  FCC,  453  U.  S.  367,396  (1981).) 
 The  First  Amendment  interests  of  candidates  and  voters,  as  well  as  broadcasters,  are  implicated  by 
 3  12(  a)(  7).  We  have  recognized  that  it  is  of  particular  importance  that  candidates  have  the...  opportunity  to 
 make  their  views  known  so  that  the  electorate  may  intelligently  evaluate  the  candidates  personal  qualities 
 and  their  positions  on  vital  public  issues  before  choosing  among  them  on  election  day.  Indeed,  speech 
 concerning  public  affairs  is...  the  essence  of  self-  government[.]  The  First  Amendment  has  its  fullest  and 
 most  urgent  application  precisely  to  the  conduct  of  campaigns  for  political  office. 


 6 


 I_  ..-  .  ~_,  ,__  __-_--  -.___  _  --  _.___.  .l..--  l--  l-- 
293
 for  promoting  important  social  goals  in  terms  of  greater  access  to  the  medium  and 
 attention  to  public  interest  programming2 
 Americans  rely  on  television  to  get  their  news  more  than  any  other  source.  26 
 Consequently,  this  poses  a  burden  of  accountability  to  the  public  interest  not  present  to 
 the  same  degree  in  other  forms  of  media.  A  burden  that  is  far  outweighed  by  the 
 advantages  broadcasters  have  in  their  position  with  the  American  public  and  the 
 government. 
 Instead  of  being  charged  a  fee  for  their  use  of  the  spectrum,  all  current 
 broadcasters  have  been  awarded  their  licenses  on  the  condition  that  they  serve  the  public 
 interest.  27  This  presumptively  favors  incumbent  licensees  so  long  as  they  comport  with 
 public  interest  standards  .28  While  the  FCC  has  moved  to  an  auction  and  bidding  process 
 for  licensing,  Congress  clarified  that  the  digital  television  channels  incumbent  television 
 broadcasters  will  be  receiving  are  exempt  from  the  auction  authority  it  has  given  the  FCC 
 in  assigning  new  broadcast  licenses  in  the  future.  29  In  addition  to  the  receipt  of  spectrum, 
 broadcasters  have  enjoyed  other  government-  conferred  benefits.  These  include  statutory 
 must-  carry  rights  that  entitle  television  broadcasters  to  carriage  on  local  cable 
 systems3 


 *  Logan,  85  Cahf.  L.  Rev.  1687 
 16  FCC  Notice  of  Proposed  Rulemaking,  FCC  99-  360,65  FR  at  4211;  Roper  Starch  Worldwide,  Americas 
 Watching:  Public  Attitudes  Toward  Television  (1995)  (reporting  results  of  public  survey  and  stating  that 
 television  continues  to  be  far  and  away  Americans  primary  and  most  credible  source  for  news  and 
 information). 


 27  Logan  at  1727. 
 *  Logan  at  1729-  34. 
 29  See  Section  3002  of  the  Balanced  Budget  Act  of  1997,  143  Cong.  Rec.  H6029,  H6031  (daily  ed.  July  29, 
 1997)  (codified  at  47  U.  S.  C.  A.  309  (j)(  2)(  B)). 
 3o  Logan  1687:  These  must-  carry  provisions  have  been  upheld  by  the  Supreme  Court  against  First 
 Amendment  attack  by  the  cable  industry.  See  Turner  Broad.  Sys.,  Inc.  v.  FCC,  1  I7  S.  Ct.  I  174  (1997). 


 7 
294
 Newspaper  publishers  are  not  the  recipients  of  any  of  these  special  governmental 
 benefits  in  the  allocation  of  the  resources  that  go  into  communicating  their  speech.  In 
 contrast,  broadcasters  have  enjoyed  the  fruits  of  a  government  allocations  system  that  has 
 granted  them  the  exclusive  right  to  use  the  broadcast  spectrum.  And  these  rights  have 
 proven  to  be  extremely  valuable.  The  National  Telecommunications  and  Information 
 Administration,  of  the  Department  of  Commerce,  has  estimated  the  marketplace  value  of 
 the  current  television  and  radio  broadcast  spectrum  at  $  11.5  billion.  31  Furthermore,  each 
 existing  television  station  has  been  awarded  a  second  6  MHz  channel  to  use  for  its  digital 
 transmissions32,  with  the  total  value  of  the  spectrum  that  will  be  used  for  digital  television 
 estimated  to  be  between  $  11  to  $70  billion.  33 
 The  courts  have,  in  turn,  recognized  this  advantage  and  upheld  regulatory  public 
 obligations.  34  Red  Lion  also  recognized  that  the  preferential  treatment  broadcasters 
 receive  in  being  granted  their  rights  to  use  the  spectrum  consequently  provides  an 
 independent  basis  for  upholding  regulations  requiring  a  licensee  to  share  his  frequency 
 with  others  and  to  conduct  himself  as  a  proxy  or  fiduciary  with  obligations  to  present 
 those  views  and  voices  which  are  representative  of  his  community  and  which  would 
 otherwise,  by  necessity,  be  barred  from  the  airwaves.  135 
 The  idea  that  broadcasters  should  give  free  air  time  to  candidates  in  exchange  for 
 the  spectrum  set-  asides  is  at  the  forefront  of  public  policy  debates  in  Congress  regarding 
 DTV.  The  set-  aside  prompted  President  Clinton  to  establish  an  Advisory  Committee  to 


 31  Logan  at  1730  citing  Nat1  Telecomm.  &  Info.  Admin.,  U.  S.  Dept  of  Comm.,  U.  S.  Spectrum 
 Management  Policy:  Agenda  for  the  Future,  NTIA  Special  Pub.  No.  91-  23  (Feb.  1991). 
 32  See  Fifth  Report  and  Order  in  MM  Docket  No.  87-  268,  FCC  97-  116,  PP  1  l-  12,  17  (released  Apr.  2  1, 
 1997) 
 33  Logan  at  1730. 
 34  CBS,  Inc.  FCC,  453  U.  S.  367  (1981). 
 35  Red  Lion  Broad  v.  FCC,  395  U.  S.  367,389  (1969). 


 8 


 _  _  ..-.__  I  .-.~.~  ,._--  1--- 
295
 examine  the  public  interest  obligations  of  television  broadcasters.  36  It  has  also  led  several 
 prominent  bi-  partisan  members  of  the  community,  including  former  President  Jimmy 
 Carter  and  Walter  Cronkite,  to  advocate  requiring  broadcasters  to  provide  free  airtime  to 
 political  candidates.  37 
 Several  public  interest  groups  have  emerged  to  address  this  issue,  including  the 
 Civil  Rights  Forum,  the  Center  for  Media  Education,  and  a  Task  Force  on  Campaign 
 Reform  chaired  by  Princeton  University  professor  Larry  M.  Bartels  and  endorsed  by  Paul 
 Taylor  and  Walter  Cronkite  through  The  Free  TV  for  Straight  Talk  Coalition  and 
 Alliance  for  Better  campaigns.  38  In  effect,  these  groups  have  recognized  that  the  United 
 States,  compared  to  other  industrialized  nations,  is  seriously  lacking  in  its  effective  use  of 
 television  as  a  medium  for  political  discourse.  They  indicate  that  several  broadcasters  are 
 decreasing  the  level  of  political  information  that  is  transmitted  through  television,  and 
 have  lukewarm  responses  to  voluntary  free  air  time  for  candidates. 
 Conclusion  and  Suggestions 
 As  indicated,  the  FCC  is  constitutionally  free  to  regulate  broadcasters  use  of  their 
 licensing  advantage  to  promote  public  discourse.  Furthermore,  market  mechanisms  have 


 36  Exec.  Order  No.  13,038,62  Fed.  Reg.  12,065  (1997). 
 37  Alliance  for  Better  Campaigns,  www.  bettercampaigns.  org  (endorsing  the  Vice  Presidents  Commission 
 suggestion  for  5  minute  free  air-  time  for  campaigners). 
 In  addition,  Logan  cites  Broadcasting  &  Cable  quoted  Senator  McCain  as  saying, 


 I  believe  that  when  [broadcasters]  receive  their  licenses  for  use  of  extremely  valuable  spectrum,  when  they 
 agree  to  act  in  the  public  interest,  part  of  that  obligation  might  be  to  provide  political  candidates  with  an 
 opportunity  to  express  their  views....[  Broadcasters]  do  use  something  thats  owned  by  the  public,  just  like 
 the  rafter  uses  the  Grand  Canyon.  I  believe  the  American  taxpayer  should  have  the  benefit  of  that 
 something. 


 Toughs  the  Word  for  John  McCain,  Broadcasting  &  Cable,  Mar.  3,  1997,  at  19. 
 38  www.  civihightsforum.  org/  dtv/;  www.  bettercampaigns.  org. 
296
 pressured  broadcasters  to  forego  free  air  time  and  other  measures  to  increase  political 
 information  to  the  public. 
 While  the  PIAC  suggestions  for  voluntary  efforts  by  broadcasters  to  promote 
 democracy  and  the  specific  five-  minute  free  soundbites  for  candidates  is  a  start,  the 
 initiative  does  not  go  far  enough.  As  several  people  in  the  industry,  including  Dan 
 Rather,  Walter  Goodman,  and  Thomas  Hazlett,  have  commented,  this  plan,  or  any  like  it 
 is  nothing  more  than  meaningless  (and  monotonous)  fluff  that  pays  only  lip  service  to 
 democratic  intellectual  discourse.  39 
 The  FCC  should  rethink  the  automatic  renewal  of  licensing  and  the  exemption 
 from  the  bidding  process  of  incumbent  licensees  in  renewing  licensing  for  DTV 
 spectrum.  Such  a  policy  would  foster  competition  and  introduce  more,  and  hopefully 
 better,  news  and  politics-  oriented  broadcasting.  In  addition,  the  FCC  should  require  that 
 broadcasters  provide  free  air  time  a  day  for  at  least  30  minutes  during  prime  time, 
 including  use  of  time  for  debates,  political  analysis,  etc.  Furthermore,  as  an  alternative,  a 
 broadcast  bank  could  be  created  wherein  each  broadcaster  would  be  required  to 
 donate  two  hours  of  prime  time  advertising  in  each  two-  year  election  cycle.  Buy-  out 
 plans  may  also  be  feasible  wherein  a  broadcaster  can  instead  of  airing  political 
 informational  programming,  provide  equivalent  monetary  contribution  to  PBS  or  another 
 government  operated  broadcasting  system,  not  unlike  the  pro  bono  requirements  of 
 many  attorneys  who  similarly  are  accountable  to  a  higher  level  of  public  interest  than 
 other  professionals. 


 3g  www.  bettercampaigns.  org; 
 Thomas  W.  Hazlett,  Must  Scream  TV,  www.  reasonmag.  com/  970l/  col.  hazlett.  html. 


 10 
297
 11 
298
 March  17,  2000  .  Mm  2  3  zooo 
 m 
 Magalie  Roman  Salas  Secretary 


 Federal  Communications  Commission  445  12th  Street  SW 
 Washington,  DC  20554 
 RB:  Public  Interest  Obliqations  of  Television  Broadcasters  Licensees  MM  Docket  No.  99-  360;  FCC  99-  390;  65  Fed.  Reg.  4211  (2000) 


 Dear  Secretary  Salas: 
 I  am  writing  to  comment  on  the  public  interest 
 requirements  the  Commission  should  impose  on  digital 
 broadcasters.  As  a  law  student  and  a  concerned  member  of  the 
 public,  I  have  focused  my  suggestions  in  the  four  areas  that 
 need  the  most  protection  and  reform  as  we  move  into  the 
 digital  age.  Digital  television  will  provide  broadcasters 
 with  more  programming  options  which  should  be  used  to  better 
 serve  the  citizenry.  Imposing  more  public  service 
 requirements  on  digital  broadcasters  in  these  areas  will 
 give  more  Americans  the  opportunity  to  participate  and 
 prosper  in  the  digital  age.  Therefore,  I  hope  the 
 Commission  will  take  the  incentive  to  impose  more  public 
 interest  requirements  in  the  areas  of  education,  political 
 participation,  community  programs  and  services,  and 
 broadcasting  safeguards. 
 Education 


 I  believe  digital  technology  should  be  used  to  serve 
 the  educational  needs  of  both  adults  and  children.  Digital 
 television  broadcasters  should  be  required  to  deliver 
299
 Magalie  Roman  Salas  March  17,  2000 
 Page  2 


 innovative  and  interactive  programs  and  services  from 
 traditional  educational  institutions.  These  telecast 
 requirements  will  enhance  the  work  of  schools,  libraries, 
 training  centers,  and  distance  education.  '  I  believe  the 
 Federal  Communications  Commission  should  focus  educational 
 regulations  for  digital  broadcasters  in  three  areas: 
 children's  programs,  lifelong  learning,  and  access  to 
 technology. 
 Children's  Program= 
 In  my  opinion,  broadcasters  should  be  required  to  go 
 far  beyond  the  minimum  of  three  hours  per  week  of  education 
 programming  now  required  under  the  1990  Children's 
 Television  Act.  Stations  should  provide  a  minimum  of  one 
 hour  per  day  of  programming  designed  to  serve  children  of 
 all  ages,  including  news  and  public  affairs  programming.  I 
 also  believe  that  the  Commission  should  continue  to  impose 
 the  six  requirements  defined  in  the  1996  rules  for 
 children's  programming  [(  l)  have  a  significant  purpose  of 
 educating  children  16  and  under;  (2)  have  a  clearly  stated, 
 written  educational  objective;  (3)  have  a  target  age  group 
 as  the  intended  audience;  (4)  be  at  least  30  minutes  in 
 length;  (5)  b  e  regularly  scheduled;  and  (6)  be  broadcast 
300
 Magalie  Roman  Salas  March  17,  2000 
 Page  3 


 between  the  hours  of  7:  00  AM  and  1O:  OO  PM].  '  Moreover,  I 
 agree  with  the  People  for  Better  TV  that  digital 
 broadcasters  should  be  limited  to  no  more  than  four 
 commercials  per  hour  during  children's  programs.  3  These 
 requirements  will  be  very  beneficial  to  children  in  rural 
 areas  who  would  not  otherwise  receive  any  educational 
 programs  outside  of  school.  Furthermore,  the  news  and 
 public  affairs  programming  of  these  programs  will  help 
 educate  all  children  about  the  world  them. 
 Lifelong  Learninq: 
 Broadcasters  should  also  provide  access  to  continuing 
 adult  education,  college  courses,  and  other  educational 
 opportunities  for  the  public.  This  type  of  public  interest 
 programming  will  give  individuals  both  the  convenience  and 
 freedom  to  enrichment  their  educational  capabilities. 
 Access  to  Technoloqy: 
 As  part  of  their  community-  service  requirement,  I 
 believe  broadcasters  should  provide  schools  and  other 
 nonprofit  institutions  with  support  for  Internet  access  and 


 !Report  to  the  Federal  Communications  Commission,  Advisory  Committee  on  the  Public  Interest  Obligations  of  the  Digital 
 Television  Broadcasters  (December  29,  1998).  '  A  Field  Guide  to  the  Children's  Television  Act  (visited 
 March  13,  2000)  ,h~,~~~~~~~~~.~~  me.  or~~  ctatcolI'fs-  uide.  f~  tml.  '  Letter  from  Albert  Gore,  Jr.,  Vice  President,  to  William 
 Kennard,  Chairman,  Federal  Communications  Commission  (October  20,  1999). 
301
 Magalie  Roman  Salas  March  17,  2000 
 Page  4 
 other  digital  TV  services.  Being  from  a  rural  area,  I  have 


 seen  first-  hand  the  financial  difficulties  some  schools  have 
 providing  technological  innovations  for  students.  Moreover, 
 I  endorse  requiring  digital  broadcasters  to  support 
 community  technology  centers,  which  provide  essential  access 
 and  training  to  those  who  might  otherwise  be  excluded  from 
 full  participation  in  the  digital  age.  '  Both  school 
 Internet  and  community  technological  support  requirements 
 will  expand  the  facilities'  educational  capabilities  that  in 
 turn  will  improve  the  opportunities  available  for  students. 
 Particivation  Political 


 Current  television  practices  have  contributed 
 significantly  to  the  deterioration  of  the  political  process. 
 The  high  cost  of  TV  advertising  time  has  required  political 
 candidates  to  raise  larger  and  larger  campaign  funds  which 
 has  made  these  candidates  vulnerable  to  increasing  special- 
 interest  influence.  At  a  time  when  voter  participation  is 
 at  an  all-  time  low,  the  television  industry  should  be  called 
 upon  to  make  a  significant  contribution  to  our  democracy.  5 


 "  Public  Interest  Goals  for  Digital  Television:  An 
 Opportunity  to  Reinvent  TV  (visited  on  March  8,  2000)  /  /s~~~~.(-  me.:~~  rg/  pubin,  ht_  r~~.  http: 


 'rd. 
302
 Magalie  Roman  Salas  March  17,  2000 
 -.-  !-  'a  '2  e  3 


 Access  to  Political  Information: 
 Digital  technology  provides  new  opportunities  for 
 broadcasters  to  connect  views  with  a  broad  range  of  civic 


 information  resources,  from  background  material  on 
 candidates  and  campaign  platforms  to  legislative  proposals, 
 referenda,  and  other  nonpartisan  material.  I  support 
 requiring  local  stations  to  work  with  state  and  community 
 governments  and  agencies  to  develop  local  and  state  versions 
 of  C-  SPAN  and  other  political  educational  stations.  These 
 stations  will  aid  the  public  in  expanding  their  knowledge  of 
 government  as  well  as  serve  as  a  watchdog  on  elected 
 officials  by  keeping  a  regular  watch  on  their  governmental 
 activities. 
 Free  Air  Time: 
 At  a  minimum,  television  broadcasters  should  be 
 required  to  provide  free  airtime  for  political  candidates, 
 federal,  state,  and  local.  I  join  the  Gore  Commission  and 
 the  Paxson  Communications  Corporation's  proposal  that 
 digital  stations  be  required  to  provide  5  minutes  per  night, 
 during  prime-  time,  for  candidate-  centered  discourse  in  the 
 30  days  before  an  election.  '  I  believe  the  stations  should 


 6  Report  to  the  Federal  Communications  Commission,  Advisory  Committee  on  the  Public  Interest  Obliga-  tions  of  the  Digital 
 Television  Broadcasters  (December  29,  1998);  Letter  from  Lowell  Paxson,  Chairman,  Paxson  Communications  Corporation, 


 - 
303
 Magalie  Roman  Salas  March  17,  2000 
 Page  6 


 rotate  which  races  are  represented  during  this  free  airtime 
 and  should  strive  to  give  equal  time  to  federal,  state,  and 
 local  candidates.  This  air  time  will  give  voters  the 


 opportunity  to  make  more  informed  choices  and  will  give 
 exposure  to  less  known,  but  otherwise  qualified  candidates.  ' 
 Communitv  Procrrams  and  Services 


 Television  stations  are  licensed  to  serve  local 
 communities.  But  except  for  local  news,  programming 
 designed  to  serve  communities  has  all  but  disappeared  from 
 broadcast  television.  '  Digital  technology  makes  possible 
 new  levels  of  community  programs  and  services.  With  each 
 station  programming  5  to  6  additional  new  channels,  the 
 opportunity  for  serving  community  needs  expands 
 significantly.  ' 
 Public  affairs:- 
 I  support  requiring  digital  stations  to  use  some  of 
 their  new  channel  capacity  to  provide  public  affairs 
 programs  that  address  issues  and  problems  facing  their 


 --~  --  ---  _I_.--_--.--~..__  .----_~-..-  ._-_,._.__  _-._-._-.----  .---  __~---- 
 to  William  Kennard,  Chairman,  Federal  Communications  Commissions  (February  11,  2000). 


 Public  Interest  Goals  for  Digital  Television:  An 
 Opportunity  to  Reinvent  TV  (visited  on  March  8,  2000)  http:  /  /'~~/~~:.  c~~~~?.  orslpubi~  l,.  h'r!  n~.. 
 --.  '  Id. 


 '  Digital  Television:  The  Site  (last  modified  January  24,  2  000  )  i&&  p:  /  ;-  fi%~~~  2w_  lfl  4;  ~~.  t.  alt~  ncvisiori.  cai~~. 
 L  ..---  -.__--- 


 --- 
304
 Magalie  Roman  Salas  March  17,  2000 
 Page  7 


 communities.  Digital  broadcasters  should  also  telecast 
 interactive  forums  that  make  possible  participation 
 from  community  members  to  address  matters  normally 


 overlooked  by  the  local  news.  This  participation  will 
 enable  decisions  formulated  by  more  members  of  the  effective 
 public.  Moreover,  community  forums  should  promote  local 
 leaders  who  can  better  represent  these  areas  in  higher 
 political  arenas. 
 Public  Accountability; 
 I  believe  digital  broadcasters  should  place  online  full 
 documentation  of  their  plans  to  serve  the  public  interest. 
 I  do  not  see  this  requirement  as  an  added  burden  to 
 broadcasters  since  many  local  stations  now  maintain  Internet 
 websites  where  this  public  interest  information  can  easily 
 be  updated.  Moreover,  I  support  the  Gore  Commission's 
 recommendation  that  digital  broadcasters  work  with  local 
 newspapers  and/  or  local  program  guides  to  enable  viewers  to 
 identify  public  interest  broadcasts."  These  disclosure 
 requirements  will  supply  individuals  with  the  information  to 
 fully  benefit  from  digital  technology  programming. 


 "  Report  to  the  Federal  Communications  Commission,  Advisory  Committee  on  the  Public  Interest  Obligations  of  the  Digital 
 Television  Broadcasters  (December  29,  1998). 


 .I  .--.  ,....  -  -,._  .l  ---.-_.-.  _-  l_  l._^  l-_,  l,  l_ 
305
 Magalie  Roman  Salas  March  17,  2000 
 Page  8 
 Broadcastinq  Safesuards 


 The  expansion  of  channels  and  the  introduction  of 
 interactivity  will  bring  new  forms  of  programming  and 
 advertising.  Interactive  marketing  will  be  embedded  within 


 programming,  further  blurring  the  lines  between  advertising 
 and  editorial  content.  Personalized  marketing  directed  at 
 individual  children  could  seriously  threaten  the  privacy  of 
 both  children  and  their  families. 
 V-  Chip: 
 Broadcasters  must  be  required  to  ensure  that  the  V-  chip 
 and  the  new  TV  ratings  system,  designed  to  protect  children 
 from  inappropriate  content,  work  effectively  with  digital 
 programming.  The  Commission  should  ensure  that  the  ratings 
 system  can  take  advantage  of  digital  technologies  to  help 
 parents  and  others  block  unwanted  programming.  These 
 requirements  are  necessary  in  order  to  prevent  a  backward 
 advance  in  protecting  our  children  from  viewing  improper 
 programming. 
 Privacy  Protections: 
 Digital  television  will  enable  broadcasters  to  acquire 
 vast  information  about  consumer's  personal  choices  in  many 
 areas.  The  Commission  must  develop  rules  to  protect  the 
 privacy  of  viewers  from  inappropriate  and  manipulative  data 
 collection  by  digital  broadcasters.  These  regulations  also 
 need  to  ban  the  sale  of  information  about  consumer's 
306
 Magalie  Roman  Salas  March  17,  2000 
 Page  9 
 personal  program  and  product  choices.  The  Commission  must 
 also  develop  new  safeguards  to  protect  the  public  from 
 manipulative  interactive  advertising  practices."  These 
 advertising  regulations  are  necessary  to  prevent  consumers 


 from  falling  prey  to  targeted  programming  and  commercials  by 
 digital  broadcasters. 
 Conclusiop 


 As  my  suggestions  reveal,  I  believe  that  the  Federal 
 Communications  Commission  should  impose  specific  public 
 interest  obligations  on  digital  television  broadcasters. 
 These  requirements  in  education,  political  participation, 
 community  programs  and  services,  and  broadcasting  safeguards 
 will  enable  average  Americans  to  benefit  from  digital 
 television.  I  feel  giving  Americans  the  opportunity  to  take 
 advantage  of  digital  technology  broadcasting  should  be  the 
 overall  goal  of  the  Federal  Communications  Commission. 


 Sincerely, 
 Glenda  H.  Pipkin 
 cc:  Professor  Glenn  H.  Reynolds 


 "  Letter  from  Mark  Lloyd,  Counsel,  People  for  Better  TV,  to  William  Kennard,  Chairman,  Federal  Communications  Commission 
 (November  16,  1999). 


 -  .  .  .  -_..  ...  .-  .-.-..  ..  l_..  l-  l--~  l- 
307
 To:  Magalie  Roman  Salas,  Secretary-  FCC 
 From:  Dale  E.  Burdette 
 cc:  Professor  Glenn  H.  Reynolds 
 Date:  15  March  2000 
 Re:  Comments  on  Debate  over  Minimum  Public  Interest  Obligations 


 Dear  Secretary  Salas, 
 I  am  responding  to  the  FCCs  request  for  comments  on  how  broadcasters  can  best 
 serve  the  public  interest  as  they  transition  to  digital  transmission  technology,  47  CFR  Part 
 73  (January  26,  2000).  Although  I  am  a  graduate  student,  I  find  time  to  watch  a  wide 
 array  of  television  programs.  Since  I  believe  my  views  will  reflect  similarly  situated 
 individuals,  I  am  writing  in  opposition  of  proposals  to  elevate  the  minimum  public 
 interest  obligations  of  broadcasters  standard. 
 Introduction 
 I  agree  with  both  the  Advisory  Committee  and  People  for  Better  TV  on  the  notion 
 that  the  advent  of  the  Digital  Era  requires  a  review  of  the  existing  public  interest 
 obligations  and  their  applicability  to  digital  television.  If  there  is  going  to  be  a  minimum 
 public  interest  standard,  both  broadcasters  and  the  general  public  need  to  clearly 
 understand  the  standard.  Since  content-  neutral  speech  regulations  are  void  on  their  face 
 if  explicitly  vague,  the  standard  must  reasonable  notice  of  what  is  required  and  what  is 
 prohibited.   
 Economically,  since  competition  in  the  marketplace  produces  the  best  results  for 
 society  as  a  whole,  in  the  absence  of  government  intervention,  I  do  not  believe  the 


   Reno  v.  ACLU,  521  U.  S.  844. 
308
 standard  should  be  elevated.  Assuming  television-  programming  consumers  must  pay  for 
 their  services,  I  believe  the  telecommunications  industry  should  be  deregulated,  possibly 
 to  the  point  of  removing  any  minimum  public  interest  requirements.  Only  by 
 deregulation  will  the  public  receive  a  free  flow  of  information  at  the  minimum  possible 
 cost.  To  date,  two  main  goals  of  regulating  these  media  are  not  being  met:  federal 
 oversight  is  not  fostering  the  commercial  development  of  the  industry  and  falls  short  of 
 serving  societys  informational  needs.  What  is  in  societys  best  interest  is  providing  them 
 with  as  much  information  as  is  feasible,  in  the  most  accessible  format,  because 
 information  is  the  foundation  of  learning  and  education.  Once  the  citizens  of  our  nation 
 are  able  to  tap  into  the  vast  amount  of  information,  now  possible  via  digital  television, 
 they  will  be  empowered  with  a  choice  of  what  they  desire  to  view  and  what  they  do  not. 
 At  this  transitional  point  in  the  telecommunications  field,  digital  television  has  the 
 capabilities  to  perform  many  valuable  services,  and  Congress  has  the  power  to  allow 
 society  to  reap  the  full  benefits  of  the  digital  arrival. 
 The  Impact  of  Television  on  Society 
 Does  television  shape  society  or  does  society  shape  television?  While  many 
 believe  that  television  programming  has  a  significant  impact  on  society,  the  opposite  also 
 holds  true.  Television  must  be  responsive  to  the  needs  and  desires  of  society  or  else  it  is 
 unappealing,  and  thus,  unsuccessful.  Unappealing  programming  is  not  in  great  public 
 demand.  If  programming  does  not  flourish,  it  fails  to  attract  the  much-  needed  revenue 


 that  keeps  broadcasters  in  business  and  on  societys  TV  sets. 
 With  the  new  business  opportunities  provided  by  digital  television,  there  exist 
 potentially  positive  effects  on  broadcasters  earnings.  In  turn,  these  benefits  can  be 
309
 passed  on  to  viewers,  not  only  by  way  of  new  services  being  provided,  but  also  by 
 decreasing  costs  to  the  consumer.  Additionally,  any  new  service  digital  TV  provides  can 


 supplement  societys  wants  (for  example,  by  data  casting). 
 Since  broadcasters  are  utilizing  the  public  airwaves,  they  do  have  a  special  role  in 
 serving  the  public.  They  should  be  required,  if  anything,  to  respond  to  what  their  viewers 
 want  to  see  and  what  they  need  to  watch.  Further,  programs  should  be  convenient  to 
 access,  and  should  meet  particular  consumers  specific  needs.  Certain  programming  may 
 be  more  successful  in  one  geographic  location  and  not  so  prosperous  in  others.  For 
 instance,  rural  programming  may  significantly  differ  from  their  urban  counterparts. 
 Likewise,  national  broadcasters  should  be  required  to  respond  to  the  national  consensus 
 and  local  broadcasters  should  fulfill  community  specific  needs  and  desires.  Therefore,  if 
 any  burden  is  to  be  placed  on  broadcasters,  it  should  be  one  of  responsiveness.  In  a 
 competitive  market,  this  obligation  will  necessarily  exist,  and  government  intervention 
 may  do  more  harm  than  good. 
 More  Specific  Regulation  is  Restraint 
 I  reject  the  notion  that  society  is  best  served  by  restricting  its  ability  to  receive 
 information.  In  regulating  the  type  of  information  conveyed  over  the  public  airwaves  by 
 digital  TV  technology,  certain  information  will  not  reach  society  through  this  medium.  If 
 individual  consumers  do  not  receive  cable,  they  may  never  receive  the  benefit  derived 
 from  areas  of  restricted  knowledge.  Instead,  society  should  profit  from  technological 
 advances  the  free  flow  of  information  made  available  by  digital  TV,  especially  from 
 those  advances  which  allow  broadcasters  to  experience  gain  by  using  public  airwaves. 
 Programming  should  go  unrestricted,  or  at  the  very  least,  remain  at  current  restriction 
310
 levels  (after  all,  they  are  continuing  to  offer  the  same  services  as  before  digital  TV.  Part 
 of  informing  is  responding  to  what  people  want  to  know. 
 Even  if  more  specific  public  interest  standards  are  applied,  as  proposed,  they  may 
 be  avoided.  According  to  the  Advisory  Committees  proposal,  broadcasters  would  be 
 allowed  to  pay  a  fee  in  lieu  of  fulfilling  the  public  interest  requirement.  Likewise,  the 
 fee  could  be  circumvented,  absent  specific  guidelines  to  the  contrary,  by  the  multicasting 
 and  meeting  their  public  interest  requirement  on  one  or  a  select  few  of  their  channel 
 streams.  If  standards  are  placed  on  all  of  a  broadcasters  streams,  services  or 
 programming  that  a  particular  community  desires  may  result  in  restricted  viewing.  At  the 
 same  time,  broadcasting  consumers  may  receive  services  that  they  do  not  want  or  even 
 watch.  This  just  appears  to  be  a  waste  of  the  resources  available  with  the  coming  of 
 digital  TV. 
 One  chief  goal  of  federal  regulation  in  telecommunications  is  to  keep  the  public 
 informed.  To  this  end,  society,  as  a  whole  and  within  its  geographical  communities, 
 should  be  allowed  to  watch  what  they  want  and  need. 
 What  Should  Society  Be  Allowed  to  Watch 
 Consumers  should  be  allowed  to  receive  the  signals  they  desire,  and  the  ability  to 
 black-  out  programming  found  undesirable.  This  decision  should  be  made  at  the 
 household  level.  Several  factors  may  shape  the  choices  desired  in  determining  the 
 combination  of  channels  the  consumer  will  receive.  One  such  factor  is  economic  in 
 nature,  and  rests  upon  a  cost-  benefit  analysis.  For  each  programming  choice,  there  exists 
 a  certain  dollar  amount,  at  which  purchasing  the  channel,  the  consumer  will  derive  a 


   Presidents  Advisory  Committee  on  the  Public  Interest  Obligations  of  Digital  Television  Broadcasters 
 Report  to  Vice-  President  Gore  .  Dec.  18,  1998. 
311
 benefit  equal  to  that  value.  In  determining  what  the  value  is  worth  to  the  individual 
 consumer,  what  is  needed  and/  or  desired  factors  in.  These  needs  and  desires  are  weighed 
 against  the  cost  in  determining  the  programmings  worth  to  the  viewer.  Finally,  another 
 major  factor  that  may  be  taken  into  consideration  is  the  broadcasts  moral  stature.  If  a 
 certain  program  is  particularly  offensive  to  a  household,  it  should  be  able  to  block  the 
 signal.  If  it  is  of  a  nature  the  consumer  desires  (and  possibly  if  it  fits  the  economically), 
 they  may  choose  to  allow  the  signal  to  enter  the  home  or  purchase  its  access,  whatever 
 the  case  may  be.  If  the  particular  programming  is  desirable  only  to  a  small  group,  a 
 premium  price  may  be  necessary.  Everyone  should  not  be  required  to  receive  the  signal, 
 or  purchase  it,  if  they  find  it  unappealing.  If  this  programming  is  of  the  character  that 
 requires  a  charge,  this  would  only  help  to  defray  costs  for  those  who  want  the  signal. 
 What  Interest  Is  Being  Promoted? 
 Besides  the  goals  of  promoting  commercial  development  within  the  industry  and 
 ensuring  information  reaches  the  general  public,  what  other  interests  does  federal 
 oversight  concern.  3  Assuming  these  goals  are  not  being  met  adequately,  there  must  be 
 something  else  were  trying  to  protect.  Whenever  obscenity  is  in  issue,  regulation  has 
 undertones  of  morality.  If  the  public  interest  lies  in  protecting  society  against  any  moral 
 wrongs,  that  reasoning  will  not  suffice.  People  in  this  society  hold  the  power, 
 government  is  for  the  people.  Free  thought  in  society  is  not  at  governments  disposal. 
 What  is  morally  correct?  If  morality  can  only  be  supported  by  religious  views, 
 the  separation  of  church  and  state  prohibits  government  regulation.  Broadcasting  is 
 afforded  First  Amendment  speech  protection,  unless  it  is  obscene.  And  this  is  obscene  to 
 whom?  The  individual  viewer  should  be  able  to  decide:  on  a  personal  level. 
312
 If  individuals  act  out  some  a  legally  unacceptable  wrong,  of  course  they  should  be 
 punished.  A  fellow  high  school  student  of  mine  built  pipe  bombs,  was  caught  by  the 
 police,  and,  in  court,  blamed  it  on  the  TV  series  McGyver.  The  point  is,  some  people 
 may  not  be  able  to  handle  it.  Some  people  may  not  be  able  to  cope  with  competition,  but 
 it  should  not  be  eliminated  from  society.  Competition  can  prove  very  beneficial  within 
 certain  spheres  of  conduct.  We  should  not  deprive  those  in  society  who  can  learn  and 
 benefit  from  particular  information.  The  same  holds  true  in  television  programming. 
 Congress  should  not  deprive  certain  programs  of  air-  time  when  these  would  be  beneficial 
 to  certain  segments  of  our  society,  simply  because  some  consumers  are  unable  to 
 understand  it  properly. 
 If  viewers  have  an  interest  in  their  communities,  their  desires  will  be  reflected  in 
 television  coverage  (as  long  as  broadcasters  know  what  people  want  to  see).  Just  as 
 people  have  a  right  to  speak,  they  have  a  right  to  not  speak.  Similarly,  these  same  people 
 have  the  right  to  vote  or  abstain  from  doing  so.  If  the  interest  in  political  broadcasting  is 
 significant,  it  should  be  reflected  on  societys  screens.  Further,  there  may  be  certain 
 geographical  locations  where  childrens  programming  is  more  or  less  appropriate  than  in 
 other  areas.  Whether  or  not  these  areas  exist  is  unimportant,  as  long  as  people  are  able  to 
 tailor  programming  to  meet  their  specific  wants  and  requirements. 
 Marketplace  Incentives 


 If  the  market  is  allowed  to  operate  without  government  interference, 
 programming  must  be  responsive  to  community  needs.  If  broadcasters  are  unresponsive 
 to  programming  desires,  they  will  be  forced  out  of  the  industry  for  failure  to  produce 
 revenues.  People  will  not  be  watching  their  programs  if  it  is  not  what  they  want  to  watch. 
313
 Adam  Smith,  often  cited  as  the  founder  of  economics,  developed  much  of  the 
 theory  about  markets  that  we  regard  as  standard  today.  In  his  main  work,  know  as  The 
 Wealth  of  Nations,  Smith  argued  that  market  forces  ensure  the  production  of  the  right 


 goods  and  services,  because  producers  would  want  to  make  profits  by  providing  them. 
 Without  government  intervention,  competition  would  increase  the  public  well-  being  by 
 providing  goods  and  services  suitable  to  the  public.  With  producers  attempting  to  outsell 
 each  other,  prices  would  be  suppressed  to  their  lowest  possible  levels,  just  enough  to 
 allow  a  minimal  profit.  If  competition  is  insufficient,  this  will  attract  more  entry  into  the 
 industry  by  producers  attempting  to  get  these  profits,  thus  bringing  prices  down.  The 
 only  requirements  that  must  be  met  under  this  economic  model  are  (1)  competition,  and 
 (2)  the  absence  of  government  intervention.  3 
 When  government  intervenes,  they  create  barriers  to  entry  of  the  marketplace. 
 With  fewer  firms  in  an  industry,  competition  is  stifled  to  some  degree.  To  get  the  full 
 effects  of  Smiths  model,  perfect  competition  must  be  present.  Perfect  competition  is  not 
 a  reality,  but  the  effectiveness  of  the  theory  remains  intact.  The  more  commerce  is 
 regulated,  the  more  competition  will  suffer,  and  also  the  benefits  that  are  derived  from  a 
 competitive  market  place.  While  Congress  is  attempting  to  lower  the  barriers  of  entry 
 into  the  telecommunications  industry  on  one  hand,  they  turn  around  negate  their  efforts. 
 With  this  in  mind,  the  public  interest  standard,  even  in  its  current  state,  acts  as  a  barrier  to 
 entry  because  it  is  putting  its  hand  into  a  competitive  market  that  will  operate  without 
 assistance.  Not  only  should  Congress  refrain  from  making  the  standard  more  specific,  it 
 should  lessen  the  bar  if  it  can  find  a  way. 


 3  www.  bizednet.  bris.  ac.  uWvirtual/  economy 
314
 How  Do  Broadcasters  Know  What  People  Want 
 One  way  is  to  ask  them.  Not  only  would  this  be  inefficient,  due  to  the  amount  of 


 time  and  resources  it  would  consume,  it  may  also  lack  something  else:  accuracy. 
 Consumers  may  not  be  as  candid  if  they  are  asked  in  person,  or  if  their  name  is  in 
 someway  attached  to  their  comments.  They  may  feel  compelled  to  answer  in  a  certain 
 manner,  similar  to  peer  pressure. 
 Another  way,  which  is  currently  in  use,  is  the  voluntary  participation,  ratings 
 system.  Upon  a  persons  consent,  a  box  is  hooked  up  to  their  television  set,  and  a  ratings 
 arbitrator  receives  information  concerning  what  the  household  watched  over  a  specified 
 period  of  time.  The  problem  with  this  system  of  ratings  is  that  people,  who  know  the  box 
 is  there,  may  not  watch  their  usual  programming.  Additionally,  since  only  a  random 
 sample  of  society  is  being  tested,  we  do  not  get  an  accurate  gauge  of  what  specific 
 households  desire  to  watch. 
 I  propose  an  alternate  regime.  Instead  of  receiving  every  signal  that  is  on  the 
 airwaves,  each  household  should  have  the  ability  to  block  undesirable  signals.  This  way, 
 each  individual  household  can  determine  what  comes  onto  their  TV  screen.  If  this  is  not 
 economically  or  technologically  feasible,  I  propose  in  the  alternative,  a  system  that 
 monitors  every  single  household.  When  the  TV  is  turned  on,  a  signal  is  transmitted  to  a 
 remote  transmission  collection  device  (mechanical,  not  human),  when  data  concerning 
 the  type  of  programming  viewed  and  time  spent  on  the  particular  signal  is  tabulated. 
 Only  the  results,  no  individual  names  (so  as  to  protect  any  privacy  interest  that  may  be 
 involved)  are  then  sent  to  the  broadcaster.  After  all  the  results  are  combined  for  a  given 
315
 period,  broadcasters  would  know  which  types  of  programming  are  most  suitable  for  a 
 particular  community. 
 Conclusion 
 The  public  interest  can  only  be  served  when  people  are  given  the  option  to 
 explore  their  own  discretion.  People  must  be  empowered  with  the  ability  to  decide  what 
 to  watch  and  where  they  watch  it.  Consumers  know  what  they  want,  they  do  not  need 
 government  deciding  this  for  them.  Congress  has  the  power  to  empower  people  with  a 
 wealth  of  knowledge.  Until  people  are  fully  informed,  it  will  remain  difficult  for  them  to 
 make  educated  decisions.  Educated  decisions  not  only  concerning  choice  of  TV  shows, 
 but  in  other  aspects  of  life  as  well.  Congress  should  not  elevate  the  public  interest 
 standard  by  making  it  more  specific.  Instead,  with  the  era  of  digital  TV  upon  us,  and 
 more  technological  advances  on  the  horizon,  they  should  utilize  the  momentous 
 opportunity  to,  itself,  serve  the  public  interest  and  deregulate  TV. 
 Respectfully  submitted, 
 Dale  E.  Burdette 


 .~  ,._...._  __  _  .    _  .-  I__^___.  .,  .  -...----  ..-_  l.  l-  --I  ~.  I~_-~ 
316
 To: 
 From: 
 cc: 
 Date: 
 Re: 


 Magalie  Roman  Salas,  Secretary-  FCC 
 Carol  Guthrie 
 Professor  Glenn  H.  Reynolds 


 March  17,  2000 
 Comments  on  Public  Interest  Obligations  of  Television  Broadcast  Licensees 


 Dear  Secretary  Salas, 
 I  am  writing  in  response  to  the  FCCs  request  for  public  comments  on  how  broadcast 
 licensees  can  best  serve  the  public  interest  as  they  transition  to  digital  transmission 
 technology.  (MM  Docket  No.  99-  360,  FCC  99-  390).  My  comments  will  focus  on 
 suggestions  for  strengthening  commercial  broadcasters  public  interest  obligations  in  the  areas 
 of  education  and  community  outreach.  I  have  taught  history  at  the  college  level  for  the  past 
 fifteen  years  and  have  witnessed  first  hand  the  ways  in  which  advances  in  technology  and 
 communications  have  transformed  teaching  and  learning.  As  an  educator  and  third-  year  law 
 student,  I  know  that  educational 
 accommodate  those  changes  and 
 century. 


 strategies  must  continue  to  be  redesigned  in  order  to 
 prepare  American  students  for  life  in  the  digital  21st 


 Specifically,  I  endorse  several  of  the  suggestions  proposed  by  the  Advisory  Committee 
 on  Public  Interest  Obligations  of  Digital  Television  Broadcasters,  as  well  as  those  of  other 
 commentators  and  educators.  My  comments  will  address  three  areas:  1)  suggestions  for 
 strengthening  public  broadcasting,  2)  the  benefits  of  creating  a  public,  noncommercial 


 1 


 -  .-  ^.-.  ..-_  .-    .,,  .  -.  ._.  .--__-  ._._  _  ,.  _____-_  -  _-._-.  ~*  -..-- 
317
 educational  analog  channel,  and  3)  the  need  for  reaffirming  and  strengthening  the  public 
 interest  requirement  on  commercial  broadcasters  childrens  programming. 
 BackPround 
 Congress  granted  the  broadcast  industry  a  significant  benefit  when  it  gave  current 
 broadcasters  free  access  to  the  digital  broadband.  As  the  Center  for  Media  Education 
 executive  director,  Jeffrey  Chester,  has  noted  this  grant  was  the  equivalent  of  free 
 beachfront  property  on  the  Information  Superhighway.  I  I  acknowledge  that  broadcasters 
 will  have  to  expend  millions  of  dollars  to  make  the  shift  from  analog  to  digital,  but  there  is 
 no  reason  that  broadcast  networks  could  not  compensate  the  American  public  in  some  small 
 way  for  this  grant.  By  requiring  broadcasters  to  contribute  to  advancing  educational  and 
 community  interests,  Congress  and  the  FCC  would  not  be  treading  on  new  ground.  In  the 
 1780s,  the  Northwest  Ordinances  required  that  proceeds  from  one-  sixteenth  of  every 
 township  sold  had  to  be  used  to  build  a  public  school  and  hire  a  teacher.  In  the  1860s,  the 
 Morrill  Act  provided  that  a  percentage  of  every  plot  of  public  land  sold  be  used  to  establish 
 land  grant  colleges.  Unlike  these  two  examples,  broadcasters  access  to  21st  century  public 
 land  (i.  e.  the  airwaves)  was  acquired  for  free.  Thus,  it  seems  reasonable  for  the  public  to 
 realize  some  greater  benefit  for  this  grant,  and  what  better  way  to  serve  the  public  trust  than 
 by  having  broadcasters  contribute  in  some  way  to  improving  education  and  community 
 outreach. 


 www.  cme.  org/  press/  991215pr.  html 
 2 


 __-  .I  I  .  ..I  -.  .  .-._.  .)___.  --.-  ___  I  .---  -  -~-..  -  -.  _,_,  __  ,._,_  l,.  ..__.  -.------I  .^  - 
 I  ,_ 
318
 $trenPthenine  Public  Broadcasting 
 As  the  Advisory  Committee  on  Public  Interest  Obligations  of  Digital  Television 
 Broadcasters  has  proposed,  an  effective  way  to  strengthen  education  would  be  to  assure  the 
 ongoing  efforts  of  public  broadcast  networks  to  provide  commercial-  free  educational  and 
 informational  programming.  I  agree  with  the  Advisory  Committee  that  a  trust  fund  should  be 


 established  to  help  offset  the  costs  of  public  television.  The  proposed  two  percent  fee  on  the 
 sale  of  broadcast  and/  or  telecommunications  properties  and  a  two  percent  fee  on  broadcasters 
 gross  revenues  would  assure  that  public  television  broadcasters  have  adequate  resources  to 
 continue  their  current  efforts  at  providing  free,  over-  the-  air  quality  programming. 
 Establishing  a  trust  fund  would  also  make  funds  available  for  public  broadcasters  as  they 
 transition  into  digital  programming.  Contributing  to  such  a  trust  fund  seems  to  me  a  small 
 price  to  pay  for  the  enormous  benefit  the  American  public  has  bestowed  on  commercial 
 broadcasters  for  their  free  access  to  the  digital  airwaves. 
 I  also  believe  that  public  broadcasters  should  be  allowed  to  keep  control  over  their 
 analog  channel  in  addition  to  gaining  access  to  a  local  six  megahertz  digital  broadband. 
 Whereas  commercial  broadcasters  will  be  required  to  return  their  analog  channel  for  some 
 future  sell-  off,  public  broadcasters  could  continue  using  their  analog  channel.  Alternatively, 
 local  analog  channels  could  be  turned  over  to  local,  noncommercial  broadcasters  who  could 
 use  that  broadband  for  community  outreach,  such  as  providing  free  air  time  to  local  political 
 candidates  and  airing  locally-  produced  educational  and  instructional  programming.  Ideally, 
 public  broadcasters,  local  educators,  and  civc  and  political  leaders  could  join  together  to 
 transform  the  analog  channel  into  an  integrated  community  service  network.  In  any  event, 


 3 
319
 the  local  public  analog  channel  should  not  be  auctioned  off,  but  should  continue  to  be 
 available  free  to  the  community. 


 Another  mechanism  for  strengthening  public  broadcasting  would  be  to  allow  public 
 broadcasters  to  lease  a  small  portion  of  their  digital  band  for  ancillary  services,  such  as 
 paging.  This  would  provide  a  steady  stream  of  income  to  local  public  stations,  thereby 


 helping  them  to  offset  the  costs  of  transitioning  to  digital  and  developing  local  educational, 
 instructional,  and  community  programming. 
 Creating  a  New  Noncommercial.  Educational  Channel 
 I  agree  with  the  Advisory  Committees  recommendation  that  one  six  megahertz  analog 
 channel  be  reserved  in  each  viewing  area  for  the  establishment  of  a  noncommercial 
 educational  channel.  As  the  Committee  and  many  other  supporters  of  this  proposal  have 
 suggested,  an  educational  channel  could  be  used  in  a  number  of  innovative  ways  to  further 
 advance  the  publics  need  for  continued  education,  instruction,  and  training. 
 Local  school  systems,  community  colleges,  and  universities  could  assume  control  of 
 this  channel,  perhaps  in  conjunction  with  local  public  broadcasters.  Educational  grants  could 
 be  established  to  help  fund  and  run  the  channels.  The  programming  possibilities  are  endless. 
 As  an  educator  who  has  taught  at  the  community  college  level  for  ten  years,  I  know  that 
 video  courses  (as  well  as  modem/  internet  courses)  are  supplanting  the  traditional  classroom. 
 By  having  access  to  a  public  analog  channel,  colleges  and  universities  could  expand  their 
 video  course  offerings  and  make  them  available  to  students  have  been  hampered  in  taking 
 video  courses  because  they  do  not  own  video  cassette  recorders.  Furthermore,  traditional 
 classroom  teachers  could  develop  innovative  ways  to  incorporate  local  analog  programming 


 4 


 _.  .  .  .  ,.._  _..  -.  .  ,-_---^_(  r  -- 
 -. 
320
 into  their  courses--  perhaps  even  having  a  class  develop  an  educational  or  instructional 
 television  program. 


 In  fact,  this  area  seems  to  me  to  be  a  fruitful  way  to  utilize  an  educational  channel. 
 Students  at  all  levels  of  the  educational  process,  preschool,  elementary,  secondary,  and  post- 
 secondary,  could  gain  hands-  own  experience  in  broadcasting  by  working  at  and  with  local 
 educational  channels.  Students  could  learn  to  operate  broadcast  equipment,  thereby  helping 
 transform  them  into  more  technologically  savvy  citizens.  Students  could  write  and  produce 
 programs  on  subjects  ranging  from  art  to  zoology  as  a  class  project.  Students  could  even 
 learn  about  the  financial  side  of  broadcasting  by  leaning  how  to  budget  and  manage 
 resources. 
 Aside  from  benefitting  students,  local  educational  channels  could  also  serve  the  wider 
 public  by  providing  instructional  and  educational  programming  that  would  foster  lifelong 
 learning.  The  digital  information  revolution  is  a  fact  of  21st  century  life  and  Americans  must 
 be  prepared  to  meet  the  daily  changes  that  technological  innovation  brings.  Local  educational 
 channels  could  provide  instructional  programming  designed  to  inform  viewers  of  all  ages 
 about  ongoing  advances  in  computer  and  Internet  technology.  Private  businesses  would  likely 
 donate  money  to  local  educational  channels  which  would  agree  to  offer  programming  on  such 
 topics  as  computer  literacy.  What  better  way  for  a  small  business  owner  to  upgrade  the  skills 
 of  his  workforce  than  by  having  them  turn  on  the  local  educational  channel  and  watch  a 


 program  about  the  latest  updates  to  Windows? 
 I  do  acknowledge  that  copyright  issues  could  possibly  hamper  the  development  of 
 programming  on  public  educational  channels.  For  example,  to  what  extent  would  Mr. 


 5 
321
 Smiths  11th  grade  American  history  class  have  property  rights  in  its  program  on  the  life  and 
 times  of  Abraham  Lincoln?  Conversely,  what  kind  of  copyright  problems  would  Mr.  Smiths 
 1  lth  grade  class  have  in  using  text  and  pictures  from  in  its  Lincoln  saga?  I  do,  however, 


 believe  that  current  copyright  laws  provide  a  solution  through  the  educational-  use  exceptions. 
 As  the  Advisory  Committee  aptly  recognizes,  funding  for  educational  channels  must 


 be  made  available.  I  believe  that  local  and  regional  business  would  be  one  source  of  funding, 
 particularly  if  they  could  be  made  to  see  the  benefits  such  channels  could  offer  them  in 
 educating  and  training  their  workforce.  Also,  the  Department  of  Education  could  provide 
 grants  to  local  educational  channels.  Finally,  I  agree  with  the  Advisory  Committee  that  the 
 President  and  Congress  should  reconsider  the  decision  to  direct  revenues  from  the  auction  of 
 the  analog  spectrum  and  fees  from  ancillary  and  supplementary  services  to  the  General 
 Treasury.  Instead,  those  monies  should  be  used  to  enhance  the  public  interest  in 
 broadcasting,  especially  in  helping  to  nurture  and  grow  public  educational  channels. 
 Strengtheninp  the  Public  Interest  Reauirement 
 on  Commercial  Broadcr&  ers  Childrens  Pronramming 


 Aside  from  the  aforementioned  proposals  for  enhancing  local  educational,  community 
 outreach,  and  instructional  opportunities,  I  also  believe  that  the  general  public  interest 
 requirement  currently  applied  to  analog  broadcasters  must  be  reaffirmed,  if  not  strengthened, 
 for  digital  broadcasters.  As  Newton  Minnow  and  Henry  Geller  have  noted,  not  to  mention 
 the  United  States  Supreme  Court,  the  airwaves  are  owned  by  the  public  and  granted  to 
 commercial  broadcasters,  free  of  charge,  with  the  understanding  that  those  broadcasters  will 


 6 
 -  I_  ,,  .__..  .,  _.  -.-.  --...  -  _..--  .I._,..  I  ~,  I.--.  ~- 
322
 serve  the  public  trust.  2  I  agree  with  the  Advisory  Committee  that  commercial  broadcasters 
 must  be  encouraged  to  use  the  new  digital  technology  in  ways  that  would  promote  diversity, 
 ensure  open  political  discourse,  and  provide  access  to  the  disabled. 
 Specifically,  I  believe  that  commercial  broadcasters  should  be  called  upon  to  make  a 
 renewed  commitment  to  developing  quality  childrens  programming.  Under  the  Childrens 


 Television  Act  of  1990,  commercial  broadcasters  are  required  to  provide  three  hours  of 
 childrens  programming  per  week.  Obviously,  that  requirement  should  continue  to  apply  to 
 the  digital  airwaves.  However,  the  FCC  should  more  closely  scrutinize  the  content  of 
 childrens  programming  to  assure  that  programs  such  as  CBSs  Secrets  of  the  Crypt-  Keepers 
 Haunted  House  and  G.  I.  Joe  would  not  alone  fulfill  a  broadcasters  three-  hour 
 requirement. 
 I  do  not  mean  to  demean  such  programs.  I  have  a  five-  year-  old  son  who  (much  to  my 
 chagrin)  has  become  a  Pokemon  fanatic.  I  even  recognize  the  possible  educational  benefits 
 such  a  show  offers  (e.  g.  learning  to  catalogue  large  amounts  of  information  about  various 
 Pokemon  characters).  However,  I  also  recognize  that  commercial  broadcasters  are  exploiting 
 my  son  in  order  to  sell  products.  That  is  the  nature  of  the  commercial  broadcasting  game 
 and  I  accept  it.  But  in  return  commercial  broadcasters  should  be  encouraged  to  improve  the 
 educational  and  informational  quality  of  childrens  programming,  and  the  FCC  can  play  a 
 role  by  drafting  guidelines  which  provide  more  concrete  descriptions  of  what  constitutes 
 educational  and  informational  childrens  programming. 


 s  Geller,  Public  Interest  Regulation  in  the  Digital  TV  Era,  16  Cardoza  Arts  & 
 Entertainment  L.  J.  34  1,  and  Statement  of  Newton  N.  Minnow  at  www.  benton.  org/  PIAC/  minowltr.  html. 


 7 


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323
 I  acknowledge  the  First  Amendment  concerns  commercial  broadcasters  raise  when 
 confronted  with  more  precise  content  regulations.  However,  I  disagree  with  the  National 
 Association  of  Broadcasters  argument  that  creating  more  clearly  defined  guidelines  would 
 violate  the  First  Amendment.  Broadcasters  cannot  have  it  both  ways:  they  cant  get  free 
 access  to  the  public  airwaves  while  skirting  their  public  interest  obligations.  The  Supreme 


 Court  has  concluded  that  the  government  can  regulate  television  content  if  the  regulation  is 
 reasonably  fashioned  in  such  a  way  to  serve  the  public  interest.  3  I  firmly  believe  the  FCC 
 can  fashion  reasonable  guidelines  that  would  result  in  commercial  broadcasters  creating 
 programming  which  would  more  fully  realize  the  goals  of  the  Childrens  Television  Acts 
 three  hour  a  week  mandate. 
 Conclusia 
 I  agree  with  the  Advisory  Committee  that  the  transition  to  commercial  digital 
 broadcasting  must  bring  with  it  a  renewed  and  strengthened  commitment  to  the  public  interest 
 requirement.  As  a  parent,  educator,  and  student  I  believe  that  commercial  broadcasters  must 
 be  called  upon  to  make  better  use  of  their  free  access  to  the  digital  airwaves,  particularly  to 
 advance  the  ever  more  complex  educational  needs  of  American  society.  I  am  not  alone,  for  a 
 majority  of  the  American  public  also  seems  to  widely  support  asking  television  broadcasters 
 to  do  more  in  return  for  the  free  use  of  public  airwaves.  4  As  a  survey  conducted  for  the 
 Benton  Foundation  found,  79%  of  those  polled  supported  a  proposal  requiring  broadcasters  to 


 3s  Geller  at  355. 
 4A  Report  on  Findings  From  Focus  Groups  and  a  National  Survey  Conducted  for  the  Benton  Foundation,  Lake  Snell  Perry  &  Associates,  www.  benton.  org/  Television/  edtv.  html. 


 8 
324
 contribute  5  %  of  their  profits  into  a  Public  Broadcasting  Fund,  while  84  %  of  respondents 
 favor  extending  the  three  hour  childrens  educational  programming  requirement  (with  55% 
 strongly  favoring).  Given  the  widespread  support  for  improving  education  and  strengthening 


 the  public  interest  requirements  of  commercial  broadcasters,  I  believe  that  the  FCC  and 
 Congress  should  adopt  the  foregoing  proposals,  along  with  others  made  by  the  Advisory 
 Committee. 


 Sincerely, 
 Carol  Guthrie 


 9 
 ^_  _  .  ..-  .._-_.  ____  _I-  _..-  II  ~-  _ 
325
 .  MAR  2  3  aJu(  j 
 To:  Magalie  Roman  Salas,  Secretary-  Federal  Communications  Co  =mL 


 From:  John  T.  Dixon 


 cc:  Professor  Glenn  H.  Reynolds 
 Date:  3/  17/  00 
 Re:  Comments  on  Public  Interest  Obligations  and  the  Transition  to  Digital  Television 


 Dear  Secretary  Salas, 
 I  am  responding  to  the  FCCs  request  for  public  comments,  65  Fed.  Reg.  4211, 
 (January  29,  2000),  and  will  direct  my  comments  to  the  FCCs  identified  goal  of 
 enhancing  political  discourse.  As  a  law  student  who  contemplates  serving  his  local 
 government  in  the  future,  I  have  serious  concern  for  the  lack  of  political  participation  by 
 the  public  at  the  local,  state  and  national  levels.  In  reassessing  the  public  interest 
 obligations  of  broadcasters  within  the  setting  of  the  digital  transition,  the  FCC  has  an 
 excellent  opportunity  to  further  its  encouragement  of  political  discourse  through 
 heightened  political  coverage  requirements.  The  FCC  should  require  broadcasters  to 
 expand  their  coverage  of  local,  state,  and  national  elections  as  well  as  require  innovation 
 in  the  coverage  of  political  debates  regarding  central  issues  which  figure  prominently  in 
 political  discourse.  By  doing  so,  the  FCC  would  promote  interest  in  and  scrutiny  of 
 politicians  and  the  issues  which  they  control. 
 In  its  NOI,  the  FCC  quoted  the  Supreme  Court  as  stating  that  deliberation  on  the 


 positions  and  qualifications  of  candidates  is  integral  to  our  system  of  government.  65 
 Fed.  Reg.  at  4215.  The  Courts  assertion  implies  that  the  election  process  through  which 
 government  officials  gain  their  positions  is  patently  deficient  if  a  significant  part  of  the 


 1 
326
 electorate  fails  to  engage  in  such  deliberation.  Sadly,  and  not  surprisingly,  such  is 
 presently  the  case.  Voter  turnout  rates  for  national  elections  are  at  a  low  point  in  the 


 nations  history.  In  addition,  almost  two-  thirds  of  Americans  do  not  trust  the 
 government,  and  almost  three-  quarters  of  Americans  state  that  politics  is  too  complicated. 
 (National  Election  Studies,  www.  umich.  edu).  These  statistics  suggest  that  most  Americans 


 are  not  participating  in  the  political  process  of  choosing  leaders,  and  what  is  worse,  are 
 not  engaged  by  the  political  issues  that  surround  elections. 
 As  the  University  of  Southern  California  Annenberg  School  for  Communication 
 study  shows,  local  news  coverage  of  the  California  gubernatorial  election  constitutes  less 
 than  1%  of  local  news  in  that  state.  Additionally,  evidence  indicates  that  25%  of  stations 
 provide  no  local  news  or  coverage  of  public  affairs.(  65  Fed.  Reg.  at  4216).  These 
 numbers  partially  explain  the  political  malaise  that  plagues  the  public.  Certainly,  stations 
 give  local  and  state  public  affairs  news  little  coverage  because  few  people  watch  the 
 programming.  The  FCC  states,  however,  that  public  service  remains  a  touchstone 
 among  the  goals  of  broadcast  communication  and  that  broadcasters  assume  a  significant 
 duty  to  serve  the  public  interest  when  they  take  control  of  airwaves.  The  situation  is  ripe 
 for  the  FCC  to  place  the  statutory  burden  squarely  on  broadcasters  to  foster  attention  to 
 the  political  process. 
 The  FCC  should  begin  by  requiring  more  time  for  political  coverage.  The 
 Advisory  Committees  proposal  of  five  minute  coverage  each  night  between  5:  00  p.  m. 
 and  11:  35  p.  m.  for  candidate  centered  discourse  during  the  thirty  days  before  an 
 election  seems  like  a  good  start.  Former  FCC  General  Counsel  Henry  Gellers  proposal, 
 however,  looks  much  better  in  that  it  contemplates  longer  spots,  15  to  20  minutes,  for 


 2 
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327
 candidate  speeches  and  response  to  issues  each  night  during  the  month  before  an  election. 
 In  order  for  expanded  coverage  of  elections  and  issue  debate  to  effect  increased  political 
 discourse,  the  coverage  must  take  the  form  (that  is,  more  time)  through  which  members 
 of  the  media  can  force  politicians  to  answer  specific  questions  directly.  With  additional 
 time  on  a  daily  basis,  media  personnel  will  have  the  opportunity,  and  should  have  an 
 FCC-  imposed  duty,  to  elicit  answers  from  politicians  that  at  least  approach  a  clearly 
 discernible  meaning.  Now,  the  media  fosters  sound-  bite  responses  from  politicians  to 
 the  degree  that  their  formulation  has  moved  from  the  repetition  of  a  fortuitously  phrased 
 quip  to  an  art  form  the  cultivation  of  which  dominates  a  large  part  of  a  candidates 
 election  strategy.  Many  people,  myself  included,  do  not  tune  in  to  a  candidates  message 
 when  that  message  is  so  short  so  as  not  really  to  say  anything. 
 Certainly,  the  media,  simply  by  throwing  more  time  at  elections,  will  not  improve 
 the  quality  of  political  discourse  as  it  is  practiced  by  shrewd  politicians.  Further,  many 
 contradictions  are  documented  on  Sunday  morning  political  talk  shows  and  of  course  the 
 daily  newspaper.  But  as  the  FCC  notes,  television  remains  the  most  dominate  medium 
 through  which  people  and  especially  young  people  get  their  information.  I  once  watched 
 Tim  Russert  ask  White  House  Chief  of  Staff  John  Podesta  if  President  Clinton  accepted 
 that  his  fine  imposed  by  a  federal  district  court  judge  was  a  correct  decision.  Podesta 
 responded  repeatedly  that  President  Clinton  would  pay  the  fine  and  was  happy  that  the 
 matter  was  over.  Russert  asked  him  whether  Clinton  thought  that  he  should  have  been 
 fined  by  the  judge  or  whether  the  judge  made  a  mistake.  Podesta  flatly  refused  to 
 endorse  either  conclusion  even  though  both  are  mutually  exclusive  and  one  or  the  other 
 necessarily  follows  from  a  contemplation  of  the  efficacy  of  the  judges  decision.  These 
328
 types  of  exchanges  frustrate  onlookers  and  encourage  them  not  to  tune  next  week. 
 Russert  can  only  do  so  much  in  30  minutes  a  week,  especially  in  the  setting  of  a  polite 


 discussion  between  himself  and  a  high  ranking  official  in  the  Presidents  cabinet. 
 Consequently,  the  setting  of  political  coverage  must  change  in  conjunction  with 
 increased  time  requirements.  That  change  should  center  on  more  requirements  for  debate 


 coverage  and  the  expanded  use  of  forums  for  politicians  even  without  the  setting  of  an 
 impending  election.  Live  debate  fosters  candid  discourse-  the  necessity  for  increased 
 attention  to  politics.  The  series  of  debates  during  the  presidential  primaries  ranked 
 around  150th  in  the  Nielsen  ratings  in  January.  (  Debates  Little-  Seen,  but  Influential, 
 Richard  L.  Berke,  January  19,  2000,  www.  nytimes.  com).  Nevertheless,  the  debates  spawned 
 dramatically  increased  awareness  about  the  election  and  the  campaigns.  The  Harvard 
 University  poll  found  that  twice  as  many  Americans  had  heard  or  seen  something  about 
 the  campaigns  compared  to  the  week  before  the  first  round  of  debates.(  Berke. 
 Debates).  More  importantly,  the  debates  forced  candidates  both  to  bring  substance  to 
 their  ideas  and  principles  and  to  face  the  consequences.  For  instance,  on  January  5th, 
 Vice-  President  Gore  answered  a  question  regarding  gays  in  the  military  during  a  debate 
 by  asserting  that  he  would  insist  before  appointing  anybody  to  the  Joint  Chiefs  of  Staff, 
 that  that  individual  support  [his]  policy[  allowing  gays  to  serve  openly],  and  yes,  [he] 
 would  make  that  a  requirement.(  Berke.  Debates)  Two  days  later,  Vice-  President  Gore 
 admitted  that  he  really  would  not  implement  that  requirement  in  an  appointment  to  the 
 Joint  Chiefs  of  Staff.  (Berke.  Debates).  The  debate  created  a  situation  in  which  Vice- 
 President  Gore  carried  his  espoused  ideas  to  a  logical  conclusion  and  then  was  given  an 
 opportunity  to  maintain  his  position  or  admit  a  lack  of  credibility.  Although  the  record  of 


 4 
329
 Gores  flip-  flop  remains,  how  much  more  powerful  would  it  have  been  if  the  frequency 
 of  debates  and  political  coverage  forced  Gore  to  revisit  his  statement  in  the  same  setting 
 in  which  it  was  made  rather  than  retracting  his  position  off  screen  within  the  print  media. 
 Former  FCC  General  Counsel  Gellers  proposal  would  be  a  good  beginning  step 
 in  the  direction  of  placing  such  candid  political  discourse  in  the  lime  light  and  thus 


 encouraging  the  public  to  embrace  political  discussion  as  it  takes  on  the  more  tangible 
 form  of  position-  taking  and  retracting  all  on  television-  preferably  during  prime-  time. 
 Certainly,  any  serious  increase  in  political  coverage  will  be  aesthetically  displeasing  to 
 some  portion  of  the  population.  Doubtless,  repeated  debates  and  coverage  of  political 
 issues  could  easily  tire  one  who  is  accustomed  to  one  no-  brain  sitcom  after  another- 
 myself  included.  But  if  substantive,  meaningful  political  coverage  greets  young  people 
 (adolescents,  12-  18)  on  a  regular  basis  in  the  evenings-  early  enough  that  they  are  not 
 already  asleep  or  doing  something  else-  then  perhaps  the  next  generation  might  come  of 
 age  with  the  habit  of  concerning  themselves  with  critical  issues  that  face  the  country  as  a 
 whole.  Further,  they  might  translate  that  concern  into  holding  their  politicians  more 
 accountable. 
 The  idea  of  routine  evening  coverage  of  political  issues  goes  beyond  Mr.  Gellers 
 proposal.  In  order  to  promote  meaningful  and  lasting  discourse  about  politicians  and 
 political  issues,  broadcasters  must  maintain  attention  on  the  everyday  occurrences  of 
 government  after  the  big  election.  The  FCC  should  go  Mr.  Geller  one  better  and  mandate 
 that  broadcasters  come  up  with  innovative  ways  to  bring  candid  political  debate  between 
 the  major  political  parties  on  the  whole  range  of  issues  that  fuel  the  political  process  and 
 the  everyday  administration  of  the  government.  When  the  nightly  news  reports  that  the 


 5 
 _.  ____  ~...  _I_  ..-.  __  __  l_---..-  ll_-- 
330
 Clinton  administration  and  the  Congress  are  in  a  deadlock  over  the  budget  and  a  federal 
 government  shut-  down  is  in  the  offing,  why  not  provide  incentive  to  broadcasters  to 
 invite  the  president  and  the  majority  leader  to  have  a  sit-  down  on  prime-  time  television  to 
 talk  candidly  about  their  differences.  The  president  and  his  counterpart  would  then  have 
 an  opportunity  to  state  directly  their  views  on  allocations  for  social  security,  paying  down 
 the  debt,  and  the  defense  budget.  If  they  appeared  less  than  candid,  perhaps  moderators 
 could  pose  questions  concerning  specific  allocations  and  other  budgetary  decisions. 
 Additionally,  the  FCC  could  encourage  broadcasters  to  create  and  extend 
 coverage  of  political  discourse  beyond  that  directly  surrounding  the  president.  Anytime 
 there  is  a  contentious  vote  in  the  House  of  Representatives  or  the  Senate,  broadcasters 
 could  provide  a  forum  in  which  members  of  Congress  could  voice  the  bases  for  their 
 decisions  to  vote  yes  or  no.  Such  forums  would  provide  an  invaluable  opportunity  for 
 freshmen  members  of  Congress  to  get  out  their  message,  challenge  their  own  partys 
 hierarchy,  and  assert  their  legislative  raison  d$  tre.  Additionally,  anytime  a  member  of 
 Congress  appeared  on  such  a  forum  in  prime-  time,  the  state  from  which  he  or  she  hailed 
 would  certainly  have  cause  for  heightened  interest.  When  Senator  Fred  Thompson  of 
 Tennessee  gave  the  Republican  Response  to  President  Clintons  State  of  the  Union 
 address  to  Congress  several  years  ago,  I  was  much  more  interested  not  only  in  what  he 
 had  to  say  but  the  Presidents  speech  in  general  and  the  issues  that  each  of  them  raised. 
 In  short,  in  order  to  enhance  political  discourse,  the  FCC  must  require  broadcasters  to 
 spend  more  time  on  the  political  process  both  during  elections  and  in  the  interim  and 
 must  require  broadcasters  to  create  more  innovative  and  effective  ways  to  formulate 
 political  coverage. 


 6 
331
 CONCLUSION 
 To  sum  up,  broadcasters  presently  provide  coverage  of  politics  and  public  affairs 
 the  quantity  and  quality  of  which  is  wholly  deficient.  This  deficiency  results  both  in  an 
 uninformed  and  uninvolved  electorate  and  a  government  of  politicians  who  are  left 


 unaccountable  for  their  positions  and  decisions.  In  reevaluating  the  public  interest 
 obligations  of  broadcasters  during  the  transition  to  digital  television,  the  FCC  should  take 
 significant  measures  to  require  broadcasters  to  improve  dramatically  their  coverage  of  the 
 political  process.  The  FCC  should  devise  rules  that  require  broadcasters  to  create  forums 
 conducive  to  more  candid  political  discussion  among  politicians  such  as  debates  and 
 issue-  specific  interviews.  The  FCC  should  require  broadcasters  to  provide  these 
 improved  forums  more  frequently,  at  more  significant  times  (early  prime-  time),  and  in 
 settings  beyond  presidential  elections  such  as  Congressional  debate  and  interaction 
 between  Congress  and  the  President.  While  these  objectives  are  far-  reaching  and 
 ambitious,  anything  short  of  initiatives  of  this  sort  will  accomplish  too  little.  Thank  you 
 for  your  consideration. 


 Cordially, 
 John  T.  Dixon 


 7 
 ..-  __  ,-I    ..~  ._.._.-.  .  ,..  .-  I_____ 
332
 w=  N  2  3  zoo(  J 
 REGINA  M.  LAMBERT  1161  Edenbridge  Way  *  Knoxville,  TN  37923  *  423-  769-  5605  *  Lambe  mm?;: 


 March  17,  2000 
 William  E.  Kennard  Chairman 
 Federal  Communications  Commission  445  12fh  Street  SW 
 Room  TW-  A306  Washington,  DC  20554 


 Re:  Public  Interest  Obligations  of  Television  Broadcast  Licensees  47  C.  F.  R.  Part  73 
 MM  Docket  No.  99-  360  FCC  99-  390 


 INTRODUCTION  AND  BACKGROUND 
 I  am  a  law  student  at  the  University  of  Tennessee  College  of  Law  in 
 Knoxville,  Tennessee.  In  conjunction  with  an  Administrative  Law  class  in  which  I 
 am  enrolled,  I  am  writing  to  comment  on  your  solicitation  regarding  how 
 broadcasters  can  best  serve  the  public  interest  as  they  transition  to  digital 
 transmission  technology.  Specifically,  I  address  the  topic  of  voluntary  self- 
 regulation  of  a  public  interest  standard.  While  the  public  should  ultimately  benefit 
 from  the  transition  to  digital  television,  it  would  be  premature  to  determine 
 mandated  regulations  prior  to  the  completed  transition  to  digital.  The 
 technological  and  economic  uncertainties  that  are  associated  with  the  transition 
 from  analog  to  digital  support  implementation  of  flexible  and  voluntary  self- 
 regulations  joined  by  economic  incentives. 


 1 
333
 In  order  to  promote  a  complete  transition  from  analog  to  digital  television 
 by  the  year  2006,  the  Federal  Communications  Commission  (FCC)  gave  each 
 existing  analog  television  station  an  extra  channel  to  begin  transmitting  digital 
 signals.    As  broadcasters  undertake  this  mandatory  transition  from  analog  to 
 digital,  questions  arise  regarding  whether  current  public  interest  obligations 


 should  be  expanded  to  accommodate  the  change  and  account  for  the  gift  of 
 free  airwaves.  However,  while  stations  did  receive  the  extra  channel  at  no 
 cost,  the  required  facilities  that  broadcasters  must  build  to  be  capable  of 
 transmitting  the  necessary  digital  signals  are  enormously  expensive.* 
 Supporters  of  additional  requirements  note  the  opportunities  that 
 accompany  the  signal  given  to  broadcasters:  dramatic  increase  in  the  number  of 
 channels;  sharpened  clarity  of  images;  variety  of  the  type  of  signals  that  can  be 
 transmitted;  greater  ability  for  programming;  and  increased  ability  to  provide 
 access  to  more  people.  In  sum,  because  digital  broadcasters  have  increased 
 opportunities,  they  should  be  required  to  provide  additional  public  interest 
 obligations. 


   While  the  FCC  originally  mandated  broadcasters  to  made  a  complete  transition  to  digital  by  the 
 year  2006,  this  date  was  superseded  when  Congress  passed  a  law  permitting  analog  transmission  to  continue  until  85%  of  the  country  has  televisions  that  can  receive  digital  signals. 


 Some  predict  this  could  prevent  a  complete  transition  to  digital  until  after  2010. 


 2  Eric  Deggans,  St.  Petersburo  Times,  Oct.  31,  1999  at  1  F  (noting  that  one  broadcaster,  WEDU, 
 reports  that  they  expect  to  spend  $10  million  updating  their  facilities  for  digital  broadcasting);  see 
 a/  so  Rocky  Swift,  Florida  Television  Stations  Readv  for  2002  Switch  from  Analoa  to  Diaital,  Sun 
 Herald,  Mar.  2,  2000  (  Outfitting  a  local  n/  station  for  digital  broadcasting  can  cost  between  $3 
 million  to  $10  million.) 


 2 
334
 EXISTING  UNCERTAINTIES 
 However,  increased  revenue  for  applicable  broadcasters  is  not  an 


 absolute.  A  vice  president  of  a  major  network  stated,  [  I)  will  take  a  long  time 
 before  the  digital  TV  audience  is  large  enough  to  make  a  difference  in  the 
 financials  of  our  business.  3  Numerous  variables  contribute  to  the  uncertainties 
 regarding  the  future  benefits  and/  or  burdens  from  the  shift  to  digital  television. 
 At  the  top  of  the  list  is  the  issue  of  cost  to  consumers.  At  price  tags  of 
 $  3,500  or  more,  4  digital  televisions  are  out  of  reach  to  many  American 
 consumers,  and  thus  far  are  not  compatible  with  cable.  5  Additionally,  cable, 
 satellite  providers  and  computer  operators  -  all  of  which  are  subject  to  much 
 less  governmental  oversight  -  will  be  competing  with  broadcasters  in  the  digital 
 video  future.  6  Thus,  [  wlhile  broadcasters  are  regulated  under  a  public  trustee 
 model,  cable  and  satellite  providers  are  subject  to  much  less  government 
 oversight  -  and  computer  operators  essentially  none  at  all.  7  This  disparity  could 
 further  complicate  any  potential  projected  revenues  of  a  broadcaster. 
 Another  variable  which  frustrates  accurate  predictions  is  the  current  and 
 future  availability  of  digital  television  programming  for  those  who  can  afford 
 digital  televisions.  While  the  quality  of  DTV  is  reported  as  exceptional,  [  elven  if 


 3  Peter  Lewis,  lndustrv  Hopes  Price  Wont  Cloud  Picture  for  Viewers  of  Futuristic  Screens,  Seattle 
 Times,  Jan.  19,  1999  (quoting  Peter  Smith,  vice  president  of  technology  with  NBC). 


 4  Christopher  Stern,  FCC  Revisits  Dioital  Equitv  Dilemma,  Daily  Variety,  Dec.  16,  1999,  at  5. 
   Id.;  see  also  Lewis,  supra  note  2. 
 6  Dick  Wiley,  Communications  Today,  Feb.  7,  2000,  Vol.  6,  No.  23. 
 7  Dick  Wiley,  The  Bio  Picture.  Gore  Commission  Recommendations:  Premature?,  DV  Business, 
 Feb.  8,  1999,  Vol.  12,  No.  3. 


 3 


 _  _  __.  _  ,_.__  _,.  ..__-  ..,._  .  ,...-  - 
335
 you  have  [a  digital  television]  theres  precious  little  in  the  way  of  live  digital 
 broadcasts  to  watch.  8  With  limited  broadcasting,  the  incentive  to  purchase  an 


 expensive  digital  television  is  curbed.  These  reasons  help  explain  why  it  is  not 
 rationally  possible  at  this  time  to  accurately  forecast  how  digital  broadcasting  will 
 develop  or  whether  the  uncertain  future  of  broadcasters  will  be  successful. 
 Therefore,  while  digital  broadcasting  may  provide  many  new  ways  to 
 benefit  the  public  interest,  compelling  broadcasters  to  adhere  to  mandatory 
 requirements  during  a  costly  and  questionable  transition  period  is  not  the  best 
 way  to  accomplish  this  goal.  Rather,  it  would  be  more  judicious  to  allow  the 
 uncertainties  to  resolve  prior  to  imposing  mandatory  regulations. 
 COLLABORATIVE  APPROACH 
 It  is  best  for  all  interested  parties  to  collaborate  on  the  ways  in  which 
 digital  television  can  provide  increased  public  services  while  creating  a  voluntary 
 self-  regulation  proposal.  Currently,  a  public  interest  requirement  is  imposed 
 obligating  a  television  broadcasting  station  to  serve  the  public  interest, 
 convenience,  and  necessity.    Voluntary  self-  regulation  does  not  involve  ending 
 any  present  regulations  of  broadcasters  public  interest  obligations.  Rather,  it 
 requires  a  current  assessment  of  technological  changes  and  the  addition  of 
 further  reasonable  and  desirable  regulations. 


 a  Lewis,  supra  note  2. 
   47  U.  S.  C.  9  336(  d)  (1999). 
 lo  Broadcasters  are  currently  required  to  meet  FCC  policed  guidelines  in  exchange  for  free  use  of 
 analog  airwaves.  For  example,  every  week  a  broadcasting  station  is  required  to  air  three  hours  of 
 educational  children  programs.  See  Deggans,  supra  note  2. 


 4 


 ._  .  .  _  _.._  -_  I  __^_  _  -.__  ..,  -  _I-.._^  ..-.  -.._  _.  l--_  -_.  -----.,____. 
336
 If  the  FCC  permits  broadcasters  to  develop  reasonable  self-  regulations 
 which  they  will  voluntarily  assume,  the  broadcasters  will  feel  more  strongly 
 committed  to  the  public  interest  and  the  regulations  they  had  part  in  designing. 
 Additionally,  broadcasters  will  be  able  to  provide  valuable  contributions  through 
 their  analysis  of  current  standards  and  input  regarding  improvements  that  should 
 be  made.  The  end  result  will  find  broadcasters  actively  involved  in  the  concerns 
 of  their  community  without  unnecessary  and  unwanted  government  involvement. 
 As  suggested  in  the  recommendations  of  the  Final  Report  of  the  Advisory 
 Committee  on  Public  Interest  Obligations  of  Digital  Broadcasters  (the  Gore 
 Commission  Report),  the  National  Association  of  Broadcasters  (NAB)  can  act  as 
 the  representative  of  the  broadcasting  industry.  The  Gore  Commission  also 
 recommends  that  the  NAB  develop  and  recommend  self-  regulatory  standards  to 
 and  for  the  industry.  I  agree.  Additionally,  in  return  for  a  broadcasters  voluntary 
 self-  regulation  of  industry  agreed  standards,  the  FCC  should  provide  economic 
 incentives  -  such  as  automatic  license  renewal  upon  proof  the  voluntary  standard 
 was  adhered  to.  In  this  way,  the  broadcasting  industry  can  police  itself  during  a 
 time  of  drastic  change,  absent  undue  government  interference. 
 REPORTING  REQUIREMENTS 


 Broadcasters  have  shown  a  strong  desire  and  willingness  to  commit  to  the 
 public  interest.  However,  there  may  be  concern  regarding  determining  and 
 monitoring  self-  regulation.  In  order  to  police  self-  regulation,  the  current  quarterly 
 reports  in  which  broadcasters  are  required  to  account  for  their  non-  entertainment 
 programming  should  be  expanded  to  identify  ways  in  which  they  are  complying 


 5 
337
 with  the  voluntary  self-  regulation  standards.  The  availability  of  information  will 
 encourage  broadcasters  to  fulfill  their  obligations  and  will  also  provide  public 
 information  to  any  interested  party. 
 Once  digital  stations  are  completely  active  and  in  operation  for  a  period  of 
 two  to  five  years,  a  commission  can  observe  the  actual  revenues  of  a 


 broadcaster  and  determine  whether  increased  opportunities  are  in  fact  proving 
 lucrative.  If  this  is  the  case,  adjustments  can  be  made  and  obligations  increased. 
 This  will  prevent  broadcasting  stations  from  additional  and  costly  responsibilities 
 prior  to  realizing  any  financial  benefit  from  digital  television.  It  will  also  prevent 
 further  financial  burdens  during  a  time  when  the  station  must  spend  millions  in 
 order  to  build  digital  facilities  and  make  the  necessary  conversions  to  go  digital. 
 Additionally,  because  current  obligations  of  analog  television  stations  will 
 remain  in  effect  during  the  transition  stage.  Stations  must  continue  to  maintain 
 their  duty  to  serve  the  public  interest.  This  duty  includes  the  requirement  that 
 they  serve  the  needs  of  their  community  by  accomplishing  the  following: 
 providing  programming  that  addresses  local  issues;  maintaining  minimal 
 showings  of  educational  childrens  programs  while  limiting  the  amount  of 
 advertising  during  those  programs;  3  providing  political  candidates  with  access  to 


   Broadcast  stations  have  a  number  of  current  requirements  that  form  the  core  of  their  obligation 
 to  serve  the  public  interest,  convenience,  and  necessity. 


 *  Commission  Policy  on  Programming,  20  Rad.  Reg  (P  &  F)  1901,  1913  (1960);  Cable  Television 
 Consumer  Protection  Act  of  1992,  Pub.  L.  No.  102-  385,  106  Stat.  1460,  1461  (1992). 


   Childrens  Television  Act  of  1990,  Pub.  L.  No.  104-  437,  104  Stat.  996  (1990)  (codified  as  47 
 U.  S.  C.  Q  303(  a),  303(  B)  and  394). 


 6 
338
 public  forums;  4  providing  closed  captioning  for  the  hearing  impaired;  15  and 
 providing  equal  employment  opportunities.  16 
 The  Gore  Commissions  report,  which  was  formulated  after  a  charge  from 
 President  Clinton  to  study  and  recommend  what  public  interest  responsibilities 
 should  accompany  the  broadcasters  receipt  of  digital  television  licenses,  17  relies 
 on  three  basic  principles.  First,  the  public  should  benefit  from  the  change  of 
 analog  to  digital;  second,  public  interest  obligation  recommendations  should  be 
 flexible  so  that  they  can  grow  and  change  with  the  technology;  and  finally, 
 information,  voluntary  self-  regulation  and  providing  economic  incentives  are 
 better  than  government  regulation.  18  My  suggestion  will  satisfy  all  three  criteria. 
 While  there  is  no  denial  that  additional  obligations  will  be  desirable, 
 important,  and  possible,  there  is  simply  no  immediate  need  at  this  time  to 
 mandate  government  regulations.  Voluntary  self-  regulation  will  prove  far 
 superior  during  the  challenging  transition  ahead. 


 l4  47  U.  S.  C.  3s  312  (a)(  7)  and  315. 
 l5  Television  Decoder  Circuitry  Act  of  1990,  Pub.  L.  No.  104431,  104  Stat.  960  (1990)  (codified  at 
 47  U.  S.  C.    303(  u),  330(  b);  Telecommunications  Act  of  1996  Q  713  (codified  at  47  U.  S.  C.   
 613);  Report  and  Order,  MM  Docket  No.  95-  l  76,  12  F.  C.  C.  Red.  3272  (1998). 


 l6  47  C.  F.  R.  Q  73.2061.  In  Lutheran  Church-  Missouri  Svnod  v.  FCC,  _  F.  3d  _  (D.  C.  Cir.  1998), 
 the  U.  S.  Court  of  Appeals  struck  down  the  EEO  program  requirements  as  unconstitutional.  The 
 FCC  currently  has  pending  a  rulemaking  proceeding  to  consider  what  EEO  requirements  may 
 and  should  service.  Notice  of  Proposed  Rule  Making  in  MM  Docket  No.  s  98-  204  and  96-  16,  FCC 
 98-  305  (released  Nov.  20,  1998). 


   Exec.  Order  No.  13,038,  62  Fed.  Reg.  12,065  (March  II,  1997). 
   The  final  report  was  released  on  December  18,  1998. 


 7 


 -_  .._.  --._.  ..--~  ---_.  --.  ._ 
339
 CONCLUSION 
 In  conclusion,  while  the  possibility  for  great  advances  in  broadcasting 
 exists  with  digital  advancements,  much  is  unknown  regarding  the  future  of  digital 
 television.  Although  the  airwaves  that  broadcasters  received  were  free  of 
 charge,  DTV  is  by  no  means  a  windfall  for  the  industry.  Utilizing  voluntary  self- 


 regulation  in  conjunction  with  economic  incentives  will  result  in  an  increased 
 public  duty  without  unduly  burdening  or  alienating  broadcasters.  Therefore,  the 
 FCC  should  be  reluctant  to  impose  any  additional  public  interest  obligations  on 
 broadcasters.  It  will  be  more  prudent  to  allow  the  broadcasting  industry  to 
 determine  voluntary  self-  regulated  standards  regarding  an  increased  public 
 interest  obligation  during  the  transition  from  analog  to  digital.  As  appropriately 
 stated  in  Communications  Today: 
 Iw]  e  are  dealing  with  a  nascent  technology  and  service  that  still 
 must  find  its  appropriate  place  in  the  communications  marketplace. 
 The  imposition  of  new  and  burdensome  regulatory  requirements  at 
 this  point,  when  the  success  of  various  digital  services  is  still 
 uncertain,  could  stifle  experimentation  and  slow  the  entire 
 implementation  of  digital  technology. 
 Once  digital  stations  are  all  active  and  a  determination  can  be  made 
 factually  regarding  revenue  and  opportunities,  adjustments  can  be  made,  if 


 I9  Wiley,  supra  at  note  6. 
 2o  j&.  Licensees  must  endure  considerable  expense  in  equipping  and  operating  two  stations  - 
 analog  and  digital  -  over  a  lengthy  period  of  time,  without  any  assurance  of  increased  audience 
 or  advertising  revenue.  !c& 


 8 


 .  ..-  ---_.  I    ---.-__..  -  -~-  ^-__-.  I-.  -.  .----_..  l.  -.-~- 
340
 necessary,  for  public  benefit.  In  the  meantime,  the  uncertainties  ahead,  coupled 
 with  the  myriad  of  challenges  facing  broadcasters,  render  mandatory  regulations 
 imprudent  and  uncalled-  for.  At  this  time,  the  public  will  clearly  be  better  served 
 by  ensuring  a  smooth  transition  to  digital  absent  additional  mandatory  public 
 interest  obligations. 
 I  respectfully  request  consideration  of  this  Comment  as  one  that  will 
 ensure  the  participation  and  attention  of  broadcasters  during  the  shift  from 
 analog  to  digital,  as  well  as  one  that  will  increase  obligations  to  the  public  interest 
 as  feasible. 
 Sincerely, 


 Regina  M.  Lambert 


 9 
 I  .  i  _  _.  -  -  .~  1_  1,._.  _,^  __.  ..-  -..*  __  ----- 
341
 JENNIFER  NILES  COFFIN  MAR  2  3  2000 
 March  17,  2000 
 William  E.  Kennard,  Chairman 
 Federal  Communications  Commission 
 445  12th  Street  SW 
 Washington,  DC  20554 


 RE:  Public  Interest  Obligations  of  Digital  Broadcasters:  Free  Air  Time  for  Political  Candidates 
 Dear  Chairman  Kennard: 
 I  am  writing  in  response  to  the  Notice  of  Inquiry,  In  the  Mutter  of  Public  Interest 
 Obligations  of  TVBroadcast  Licensees,  MM  Docket  No.  99-  360.  In  particular,  I  would  like  to 
 respond  to  the  invitation  for  comments  set  forth  in  paragraph  38.  In  that  paragraph,  you  report 
 that  a  majority  of  the  members  of  the  Advisory  Committee  on  Public  Interest  Obligations  of 
 Digital  Television  Broadcasters  have  suggested  that  digital  television  broadcasters  should  be 
 required  by  the  FCC  to  provide  free  air  time  to  national  and  local  candidates.  Contrary  to  the 
 opinions  of  some,  I  am  convinced  that  the  FCC  has  the  authority  to  impose  such  regulations  on 
 its  broadcast  licensees  without  trampling  on  either  the  First  Amendment  rights  or  the  property 
 rights  of  the  broadcasters.  In  doing  so,  the  FCC  would  merely  be  adding  substance  to  an 
 otherwise  nebulous  mandate  of  the  Federal  Communications  Act,  which  is  that  in  exchange  for 
 spectrum  rights,  broadcast  licensees  must  serve  the  public  interest.  Further,  in  light  of  the 
 substantial  value  of  the  digital  spectrum  rights  loaned  to  existing  licensees,  the  FCC  can 
 legitimately  impose  these  obligations  as  carefully  measured  conditions  that  promote  political 
 democracy.  Finally,  claims  by  broadcasters  that  only  Congress  can  impose  mandatory  public 


 interest  obligations  represent  their  maddeningly  selective  invocation  of  the  non-  delegation 
 doctrine,  which  ultimately  serves  to  paralyze  the  substantive  shaping  of  the  public  interest 
 obligation  by  any  branch  of  the  government. 
342
 I.  The  FCC  has  the  authority  to  impose  regulations  that  require  broadcasters  to 
 provide  free  air  time  to  political  candidates. 


 It  is  clear  from  the  Congressional  mandate  that  the  FCC  was  granted  the  authority  to 
 impose  obligations  on  broadcast  licensees  in  exchange  for  the  free  use  of  spectrum  space.   
 Congress  long  ago  deemed  the  airwaves  part  of  the  public  domain,  and  both  Congress  and  the 
 courts  have  characterized  broadcast  licensees  as  public  trustees  who  have  a  fiduciary 
 obligation  to  serve  the  public  interest,  convenience,  and  necessity.*  As  the  Supreme  Court  has 
 acknowledged,  broadcasters  have  been  given  the  privilege  of  using  scarce  [spectrum  space]  as 
 proxies  for  the  entire  community.  In  exchange  for  this  privilege,  broadcasters  are  subject  to 
 limitations  on  their  First  Amendment  freedoms,  and  to  a  certain  amount  of  taking  by  the 
 community  through  the  mechanism  of  the  FCC. 
 Although  the  FCC  has  steadfastly  avoided  precisely  defining  the  term  public  interest,  it 
 has  nevertheless  regulated  broadcast  licensees  with  the  overarching  goal  of  requiring  licensees  to 
 serve  the  public  interest.  3  For  example,  in  the  area  of  childrens  programming,  the  FCC  has  not 
 hesitated  to  set  forth  quantifiable  guidelines,  which,  if  followed  by  the  licensee,  assure  renewal 
 of  that  portion  of  the  license  by  the  FCC.  In  addition,  Congress  and  the  FCC  have  established 
 rules  that  require  broadcasters  to  provide  reasonable  access  at  the  lowest  unit  cost  to 


   47  U.  S.  C.  9  309(  k)(  l)(  A)  (1994  &  Supp.  III  1997)  (setting  forth  license  renewal  standards  for  broadcast 
 stations) 


 2See,  e.  g.,  Red  Lion  Broad.  Co.  v.  FCC,  395  U.  S.  367  (1969)  (declaring  that  the  government  can  require  a 
 licensee  to  .  .  .  conduct  himself  as  a  proxy  or  fiduciary  with  obligations  to  present  those  views  and  voices 
 which  are  representative  of  his  community  and  which  would  otherwise,  by  necessity,  be  barred  from  the 
 airwaves);  see  also  CBS,  Inc.  v.  FCC,  453  U.  S.  367,  395  (1981)  (  A  licensed  broadcaster  is  granted  the 
 free  and  exclusive  use  of  a  limited  and  valuable  part  of  the  public  domain;  when  he  accepts  that  franchise 
 it  is  burdened  by  enforceable  public  obligations.)  (quoting  Office  of  Communication  of  United  Church 
 of  Christ  v.  FCC,  359  F.  2d  994,  1003  (D.  C.  Cir.  1966)).  And  as  Judge  (later  Chief  Justice)  Burger  wrote 
 for  the  D.  C.  Circuit,  [  A]  broadcast  license  is  a  public  trust  subject  to  termination  for  breach  of  duty. 
 OfJice  of  Communication  of  United  Church  of  Christ,  359  F.  2d  at  1003. 


 3See  Childrens  Television  Act  of  1990,  Pub.  L.  No.  101-  437,  104  Stat.  996  (codified  at  47  U.  S.  C.  $9 
 303a,  303b,  394);  47  C.  F.  R.  8  73.671  n.  2  (1996)  (setting  forth  guidelines  strengthening  the  requirement 
 that  licensees  serve  the  educational  and  informational  needs  of  children). 


 2 
 .  l----_.-_-.-~--. 
343
 candidates  for  federal  public  ofIice.  4  These  rules  and  regulations  have  been  necessary  to  alert 
 broadcasters  to  exactly  what  hoops  they  must  jump  through  before  their  licenses  will  be 
 renewed.  On  the  other  hand,  voluntary  guidelines,  as  suggested  by  the  Advisory  Committee,  do 
 not  fairly  alert  broadcasters  of  their  obligations,  and  those  who  wish  to  avoid  their  requirements 
 may  easily  do  so.  To  require  free  broadcasting  time  would  merely  be  a  fleshing  out  [of]  a  core 


 responsibility  of  broadcasters  as  public  trustees  5  and  of  our  collective  conception  of  the 
 democratic  process. 
 Both  of  these  policy  goals  can  be  implemented  by  the  FCC,  which  was  granted  authority 
 by  Congress  to  grant  and  renew  licenses  only  to  those  broadcasters  who  serve  the  public  interest 
 by  meeting  the  criterion  of  presenting  candidates  to  the  public.  Members  of  Congress  who 
 declare  that  the  FCC  may  not  do  so  without  legislation  apparently  have  forgotten  Congressional 
 statements  to  the  contrary.  6  But  most  fundamentally,  because  Congress  has  decided  to  loan 
 substantially  larger  digital  spectrum  rights  to  existing  licensees  until  2006,  it  should  not  wonder 
 that  the  public-  or  the  FCC-  considers  increased  governmentally  subsidized  licenses  to  come 
 with  increased  burdens.    To  claim  that  an  FCC  mandate  would  violate  the  non-  delegation 
 doctrine  in  this  instance,  but  not  in  many  other  comparable  instances,  is  nothing  more  than  an 
 effort  to  paralyze  the  very  agency  to  which  Congress  obviously  intended  to  delegate  a  certain 


 4See  47  U.  S.  C.  $9  312(  a)(  7),  315(  a)-(  b)  (1994);  47  C.  F.  R.  $0  73.1941,  .1942,  .1944  (1996). 
 Henry  Geller  et.  al,  Petition  of  Common  Cause  for  Inquiry  or  Rulemaking  to  Require  Free  Time  for 
 Political  Broadcasts  (tiled  Oct.  2  1,  1993)  (Geller  Petition). 


 See  id.  at  2-  3,  17  (quoting  S.  Rep.  No.  92-  96,  92d  Cong.,  1st  Sess.  28  (1971))  (  The  presentation  of 
 legally  qualified  candidates  for  public  office  is  an  essential  part  of  any  broadcast  licensees  obligation  to 
 serve  the  public  interest,  and  the  FCC  should  continue  to  consider  the  extent  to  which  each  licensee  has 
 satisfied  his  obligation  in  this  regard  in  connection  with  the  renewal  of  his  broadcast  license.) 


 See  Press  Release,  Media  Access  Project,  Media  Access  Project  Welcomes  FCC  Action  on  Public 
 Interest  Obligations  of  Digital  Broadcasters,  Dec.  15,  1999  (  Now  that  broadcasters  have  double  the 
 spectrum,  they  should  provide  at  least  twice  as  much  service.).  The  president  of  Media  Access  Project, 
 Andrew  Jay  Schwartzman  stated,  The  cost  of  political  advertising  and  the  a  perception  by  programming 
 executives  that  politics  doesnt  sell  has  reduced  us  to  a  sound-  byte  electorate.  Hopefully  the 
 Commissions  [NOI]  will  force  broadcasters  to  re-  evaluate  their  priorities  and  live  up  to  their  obligations 
 to  the  American  people.  Id. 


 3 
344
 amount  of  discretion.  If  Congress  wont  define  public  interest  to  include  mandatory  air  time 
 on  public  airwaves,  and  the  FCC  can  t  because  its  Congresss  responsibility  to  do  so,  then 
 broadcasters  and  Congress  are  in  a  merry  state  indeed.  And  it  is  the  public  who  suffers  from  this 
 trumped-  up  political  handwringing,  the  very  public  whose  access  to  the  political  process  is  at 
 issue  here. 


 II.  The  First  Amendment  rights  of  broadcast  licensees  would  not  be  unconstitutionally 
 restricted. 


 The  Supreme  Court  has  consistently  upheld  the  regulation  of  broadcasters  speech,  basing 
 its  decisions  on  the  scarcity  rationale  articulated  in  Red  Lion.  It  is  true  that  the  scarcity  rationale 
 articulated  in  Red  Lion  has  been  subject  to  increasing  criticism,  no  doubt  due  in  large  part  to  the 
 massive  increase  in  available  outlets  for  the  dissemination  of  information.  Thus,  it  becomes  less 
 tenable  to  argue  that  the  government  may  restrict  the  speech  of  broadcasters  because  there  are 
 only  a  few  speech  outlets  to  be  had.  Nevertheless,  there  are  at  least  two  other  viable  rationales 
 for  restricting  the  speech  of  broadcasters  without  running  afoul  of  the  First  Amendment. 
 a.  A  broadcast  license  can  be  conceived  of  as  creating  a  limited  public  forum. 
 The  first  alternative  rationale  is  that  the  broadcast  license  creates  a  limited  designated 
 public  forum,  and  that  as  such  it  can  be  subject  to  legitimate  government  restraints  on  speech.   
 Under  this  rationale,  the  FCC  can  point  to  the  public  debate  theory  of  the  First  Amendment. 
 And  in  response  to  the  laissez-  faire  approach  to  the  First  Amendment,  the  FCC  can  make  the 
 thoughtful  and  well-  reasoned  argument  that  given  the  disproportionate  aggregations  of  power  in 
 our  market  economy,  a  democratic  system  must  permit  the  government  to  take  an  active  role  in 
 promoting  free  speech  values  and  political  deliberation,  g  and  to    try  to  ensure  political 
 equality.    lo  Further,  the  FCC  can  point  to  the  proposition  that  the  marketplace  does  not  always 


 See  Charles  W.  Logan,  Jr.,  Getting  Beyond  Scarcity:  A  New  Paradigm  for  Assessing  the  Constitutionality  of  Broadcast  Regulation,  85  Cal.  L.  Rev.  1687,  1690  (1997). 
 91d.  at  1717  (citing  Cass  R.  Sunstein,  Democracy  and  the  Problem  of  Free  Speech  256  (2d  ed.  1995)) 
 Id.  (quoting  Sunstein,  supra  note  9  at  256). 


 4 
 .._  --_-----  ._  ll-._  l  -  .~  I_____ 
345
 function  to  properly  include  important  political  issues  or  views  and,  most  importantly,  that  the 
 market  is  not  an  adequate  substitute  for  the  marketplace  of  ideas. 


 In  my  view,  market  efficiency  functions  by  definition  to  exclude  important  issues  and 
 views,  as  they  may  be  by  their  very  nature  inefficient.  If  the  First  Amendment,  which  is  at  its 
 very  essence  the  champion  of  the  democratic  ideal  of  self-  governance,  were  left  to  market  forces, 


 we  would  likely  be  left  with  the  irony  of  a  de  facto,  but  market-  driven,  censorship  of  the  political 
 process.  The  notion  of  the  First  Amendment  as  a  wide-  open  gate  to  the  vast  marketplace  of  ideas 
 should  not  used  by  broadcasters  to  limit  its  benefits  to  the  majoritarian  and  utterly  commercial 
 pressures  of  the  market.  Indeed,  if  we  could  comfortably  leave  our  government  to  the  market, 
 we  wouldnt  need  the  First  Amendment  in  the  first  place.  I  do  not  mean  to  suggest  that  we  can 
 comfortably  do  the  opposite-  that  is,  leave  the  market  to  the  government-  because  of  course  we 
 cannot  and  do  not.  However,  there  must  be  in  some  instances  a  comfortable,  fair,  and 
 democratic  middle  ground.  In  the  specific  context  of  broadcasters,  the  middle  ground  is  that  the 
 broadcasters  have  agreed  to  be  subject  to  regulation  in  exchange  for  the  exclusive  and  designated 
 use  of  valuable  public  property  in  the  form  of  a  limited  public  forum.  And  if  that  regulation  is  in 
 the  form  of  the  governments  assistance  in  promoting  the  free  speech  rights  and  political 
 involvement  of  the  citizenry,  then  the  middle  ground  is  even  more  constitutionally  firm. 
 b.  The  broadcast  license  can  be  conceived  as  a  quid  pro  quo  arrangement. 
 The  concept  of  an  exchange  leads  to  the  second  rationale  for  imposing  regulations  that 
 may  restrict  the  speech  of  broadcasters,  the  quid  pro  quo  rationale.*  Broadcasters  get  free 
 spectrum  space;  in  exchange,  the  government  imposes  regulations  on  the  broadcasters  as  public 
 fiduciaries.  This  is  not  to  say  that  under  the  quid  pro  quo  rationale,  the  government  has  an 


 121d.  at  1729-  33.  Logan  persuasively  argues  that  it  is  the  preferred  position  of  the  broadcasters,  as 
 compared  with  newspaper  publishers  for  example,  that  justifies  the  reduced  First  Amendment  protection 
 afforded  broadcasters:  It  is  not  scarcity  that  is  the  distinguishing  factor,  rather  it  is  the  subsidy  of 
 broadcaster  speech  that  has  taken  place  in  the  governments  allocation  of  scarce  spectrum  rights.  Id.  at 
 1730. 
346
 unlimited  right  to  restrict  or  regulate  the  speech  of  broadcasters.  The  regulation  must  be 
 reasonable  and  viewpoint  neutral,  and  above  all,  must  allow  the  broadcaster  to  retain  its 
 discretion.  13  To  require  broadcasters  to  give  twenty  minutes  of  free  air  time  during  a  limited 
 period  before  an  election,  in  my  view,  would  not  be  an  outrageous  incursion  into  broadcasters 
 space,  but  would  instead  be  an  example  of  democracy  at  its  finest.  Because  the  both 
 broadcasters  and  the  public  have  legitimate  concerns  about  journalistic  discretion,  the 
 broadcaster  of  course  would  be  permitted  to  determine  the  format  of  the  presentations,  the  time 
 of  the  presentations,  and  which  race  to  follow.  But  as  public  trustees,  the  broadcaster  would  also 
 be  required  to  provide  the  public  with  free,  open,  and  uninhibited  commentary  and  debate  from 
 the  candidates  themselves. 
 Some  commentators  dispute  the  quid  pro  quo  rationale,  claiming  that  the  free  grant  of 
 digital  broadcast  spectrum  is  by  no  means  a  windfall.  r4  According  to  this  argument,  licensees 
 must  spend  money  to  equip  their  new  digital  stations,  as  well  as  keep  their  analog  stations  up  and 
 running.  However  superficially  appealing  this  argument  may  be,  it  ignores  the  fact  that  while 
 broadcasters  may  have  to  endure  considerable  expense  to  operate  their  digital  stations,  one 
 thing  they  dont  have  to  pay  for  is  a  multimillion-  dollar  broadcasting  license.  The  appeal  of  this 
 argument  can  be  even  further  discredited  when  one  notes  the  alacrity  with  which  the  broadcast 
 industry  resists  proposals  that  they  pay  for  their  spectrum  rights,  being  quick  to  cloak 
 themselves  in  their  public  trustee  robes  whenever  they  need  something  from  Congress-  be  it  free 
 spectrum  for  digital,  or  the  must-  carry  rule  that  Congress  adopted.  5  Again,  the  argument  that 
 13See  genera&  id.  I  am  sensitive  to  the  need  for  broadcaster  discretion,  and  only  argue  that  the 
 broadcasters  be  required  to  provide  time  to  political  candidates,  without  condition  on  the  content  or  viewpoint  or  presentation. 


 14See,  e.  g.,  Dick  Wiley,  Public  Interest  Obligations  for  DTV  Licensees:  Proceed  with  Caution, 
 Communications  Today,  Feb.  7,200O. 


 Paul  Taylor,  Superhighway  Robbery:  Americas  Broadcasters  v.  the  Public  Good,  The  New  Republic 
 (May  5,  1997),  at  20.  And  as  Henry  Geller  has  noted,  calling  the  turnabout  a  new  definition  of  chutzpah,  [  blroadcasters  themselves  vigorously  opposed  spectrum  usage  fees  or  spectrum  auctions 


 specifically  on  the  ground  that  they  have  public  service  obligation  and  therefore  cannot  act  like  the  usual 
 business  simply  to  maximize  profits.  Geller  et.  al,  supra  note  5  at  2  &  n.  4  (citing  Broadcasting 
 Magazine,  April  19,  1993,  at  64). 


 6 
347
 the  broadcasters  need  less  regulation  in  order  to  compete  fairly  with  other  information  providers 
 subordinates  our  political  process  to  the  increasingly  consumption-  driven  forces  of  the  body 
 politic.  16 


 III.  Requiring  broadcasters  to  provide  free  air  time  would  not  be  an  unconstitutional 
 taking  under  the  Fifth  Amendment. 


 The  general  hue  and  cry  over  this  issue  has  been  that  if  the  government  requires  free  air 
 time,  it  would  in  effect  be  taking  many  billions  of  dollars  worth  of  air  time  from  broadcasters 
 without  just  compensation.  This  argument  strains  credulity.  First,  it  is  hard  to  swallow  the 
 notion  that  broadcasters  have  any  greater  property  right  than  what  they  were  granted  in  the  first 
 place,  which  was  a  license  burdened  with  public  interest  obligations.  Because  broadcasters  have 
 gotten  no  more  than  that,  if  the  government  imposes  public  interest  obligations,  it  takes 
 nothing.  The  government  is  simply  exercising  the  condition  that  originally  burdened  the  license 
 (and  presumably  lowered  its  value).  And  despite  the  theoretical  discount  in  value  created  by  the 
 attached  obligations,  the  burdened  license  is  extremely  valuable.  Although  it  may  be  difficult  to 
 measure,  the  estimated  marketplace  value  of  the  licenses  granted  to  broadcasters  falls  somewhere 
 between  $11.5  and  $132  billion.  Furthermore,  the  total  value  of  digital  set-  asides  that  have 
 already  been  granted  to  existing  licensees  has  been  estimated  to  be  between  $11  and  $70 
 billion.  18  Thus,  the  combined  value  of  these  licenses  approaches  $2  10  billion  (and  they  do  exist 


   When  it  comes  to  news  coverage,  serious  news  is  out,  the  exotic  is  in-  the  scandal,  personal  peccadillo 
 stories,  crime,  minor  things  that  dont  reflect  the  public  interest.  Kathy  Chen,  Issue  of  TV  Air  Time  for 
 Public  Affairs  Is  Raised  Anew:  Regulators  Weigh  How  to  Expand  Standards  for  Digital  Broadcasting, 
 Wall  St.  J.  (Dec.  15,  1999),  at  B4.  Cable  and  satellite  TV  has  put  pressure  on  broadcasters  to  pander  to 
 the  lower-  common-  denominator  taste  as  a  way  to  hold  onto  market  share.  Id. 


 See  Logan,  supra  note  8  at  1727  &  n.  235  (citing  an  FCC  staff  study;  Nat1  Telecomm.  &  Info.  Admin., 
 U.  S.  Dept  of  Commerce,  U.  S.  Spectrum  Management  Policy:  Agenda  for  the  Future  (NTIA  Special  Pub. 
 No.  91-  23,  Feb.  1991);  Christopher  Stem,  HDTV  Spectrum  May  Be  Auction  Target,  Broadcasting  & 
 Cable,  Mar.  27,  1995,  at  9) 


 *  See  id.  ;  see  also  Taylor,  supra  note  15. 


 7 
 -..  .-.  .-.  _  .l._.--~-  l__  .- 
348
 in  combination,  at  least  until  2006).  According  to  the  National  Association  of  Broadcasters, 
 broadcasters  boast  that  they  provided  $148  million  in  free  air  time  to  politicians  in  the  last 
 general  election  in  1  996.  19  The  simplest  math  suggests  to  me  that  broadcasters  are  coming 
 away  from  this  deal  with  a  subsidy  of  tens  of  billions  of  dollars,  even  considering  the  free  air 
 time  so  generously  donated. 


 Second,  broadcasters  wildly  profit  from  the  use  of  their  free  spectrum  rights,  with  the 
 means  to  those  profits  being  provided  by  the  public.  Thus,  the  requirement  of  free  air  time  for 
 candidates  could  be  viewed  as  simply  a  return  on  the  publics  investment  in  broadcasting  via  the 
 subsidy.  According  to  industry  estimates,  candidates  spent  $500  million  in  paid  political  spots 
 on  television  in  1995  and  1996.*    In  light  of  the  fact  that  the  figure  represents  less  than  1 
 percent  of  gross  advertising  revenues  over  that  two-  year  period,  broadcasters  can  certainly 
 afford  the  outlay.  Broadcasters  dire  warnings  of  Big  Brother  are  disingenuous.  Because 
 broadcasters  made  a  social  compact  with  big  brother-  and  through  him,  with  the  American 
 public-  sixty  three  years  ago,  they  should  now  be  required  to  live  up  to  their  end  of  the  bargain** 
 and  even  pay  out  a  dividend  in  the  process. 
 IV.  Conclusion 
 Due  to  the  special  relationship  between  broadcast  licensees  and  the  government,  it  is  fair, 
 legal,  and  necessary  that  the  FCC  take  this  opportunity  to  establish  and  enforce  an  obligation  on 
 the  part  of  broadcasters  to  provide  free  air  time  to  political  candidates.  In  doing  so,  the  FCC  can 
 rely  on  established  First  Amendment  jurisprudence  to  avoid  constitutional  challenges  based  upon 


 Chen,  supra  note  16,  at  B4. 
 20Taylor,  supra  note  15. 
 *  Thats  a  small  fortune  in  politics,  but  its  small  change  to  the  industry  .  .  .  .  Id 
 221d. 


 8 
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 free  speech.  With  respect  to  the  Fifth  Amendment  argument,  the  FCC  can  remind  the 
 broadcasting  industry  of  the  deal  it  struck  many  years  ago,  and  of  the  considerable  public  subsidy 


 it  continues  to  receive  with  the  digital  set-  asides.  Finally,  it  might  be  argued  that  broadcasters  as 
 fiduciaries  owe  the  public  a  fair  return  on  its  investment  and  should  not  be  permitted  to  choke  the 
 administrative  process  only  after  they  have  reaped  the  benefits. 


 I  do  not  doubt  that  the  details  of  a  free  air  time  obligation  would  be  better  hashed  out  by 
 those  most  intimate  with  the  industry,  and  I  know  that  there  have  been  workable  proposals 
 brought  to  the  FCCs  attention.  23  My  comments  have  been  aimed  more  at  adding  my  opinion  to 
 the  fray,  an  opinion  backed  in  part  by  authority  and  in  part  by  an  urgent  sense  that  we  are 
 dangerously  near  accepting  the  application  of  market-  based  standards  to  our  very  political 
 process.  As  a  citizen,  I  object.  For  these  reasons,  I  urge  the  FCC  to  reject  those  standards  and 
 take  a  firm  stance  against  industry  pressures,  refusing  to  yield  to  the  demands  of  the  market.  In 
 requiring  public  trustees  to  yield  instead  to  the  demands  of  democracy,  the  FCC  will  help  place 
 this  democratic  nation  in  the  company  of  other  democratic  nations  who  have  already  taken  this 
 step. 


 Sincerely  yours, 


 Third-  year  Student 
 University  of  Tennessee  College  of  Law 
 1.505  W.  Cumberland  Ave. 
 Knoxville,  TN  37996 


 cc:  Glenn  Harlan  Reynolds 
 23See  Geller  Petition,  supra  note  5  . 
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350
 To:  FCC  From:  Chris  Wimberly  Rc 
 Re:  DTV  Comment 
 Date:  March  17,  2000  i 


 -_  -  ,_  ,.  ,__-.  w  __.  ,__,.  -- 
 --  _  _.^ 
351
 My  name  is  Chris  Wimberly,  and  I  am  an  Administrative  Law  student  at  the 
 University  of  Tennessee  Law  School.  This  comment  addresses  two  issues.  The  first 
 issue  is  whether  the  Federal  Communications  Commissions  public  interest  requirements 
 should  change  or  remain  the  same  during  the  transition  from  analog  television  to  digital 
 television.  The  second  issue  is  whether  the  increased  costs  of  digital  television  equipment 
 will  allow  such  public  interest  material  to  reach  the  general  public  after  the  complete 
 transition  to  digital  television. 
 I.  Public  Interest  Reauirements  During  the  Transition  from  AnaloF  to  DiPital 
 Television 
 Notice  of  Inquiry  65  FR  4211  could  not  have  been  more  correct  when  it  stated 
 that  [  tlelevision  is  the  primary  source  of  news  and  information  to  Americans. 
 Television  not  only  provides  the  majority  of  Americans  with  60  second  analyses  of 
 important  local  and  world  events,  but  also  tells  Americans  what  to  wear,  what  to  eat,  what 
 to  look  like,  and  who  to  be  like.  Television  is  much  more  popular  and  powerful  than 
 other  media  forms  such  as  radio  and  printed  matter  because  television  consists  of  visual 
 images  whose  primary  purpose  is  entertainment.  This  entertainment  form  necessarily 
 affects  the  type  of  content  and  information  that  television  provides  to  most  Americans. 


 Therefore,  since  the  transition  from  analog  to  digital  television  entails  a  shift  to  an  even 
 more  entertainment  based  form  of  television,  care  must  be  taken  to  craft  public  interest 


 1 
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 requirements  that  will  be  effective  in  the  age  of  digital  entertainment  technology. 
 The  transition  from  analog  television  to  digital  television  and  high  definition 
 television  will  eventually  result  in  the  complete  replacement  of  one  entertainment  based 
 form  of  media  with  an  even  more  entertainment  based  form  of  media.  Digital  television 
 (DTV)  and  high  definition  television  (HDTV)  are  advanced  forms  of  television  that  have 
 been  described  as    watching  a  moving  photograph,  with  a  clarity  and  level  of  detail  more 
 akin  to  looking  out  the  window  than  watching  TV.  Both  DTV  and  HDTV  have  also 
 been  described  as  delivering  a  big,  bright,  and  absolutely  stunning  picture.  Suzanne 
 Kantra  Kirschner,  HDTV  Comes  Home,  Popular  Science,  Fall  1999,  at  96.  Descriptions 
 such  as  these  suggest  that  the  main  effect  of  DTV  will  be  to  increase  the  quality  of  the 
 visual  imagery  of  television  and  therefore  increase  the  entertainment  value  of  television. 
 Since  the  transition  involves  a  shift  from  one  entertainment  based  form  of  media  to  an 
 even  more  entertainment  based  form  of  media,  the  Federal  Communication  Commissions 
 public  interest  requirements  must  be  reconsidered  during  the  transition  in  order  that  they 
 begin  to  adapt  to  the  environments  of  DTV  and  HDTV. 
 In  concluding  that  public  interest  requirements  need  to  be  reconsidered  when  one 
 form  of  entertainment  based  media  shifts  to  an  even  more  entertainment  based  form  of 
 media,  it  was  helpful  to  compare  the  present  day  analog  to  DTV  shift  to  the  original  radio 
 to  TV  media  shift.  At  first  glance,  these  two  media  transitions  may  seem  to  have  very 
 little  in  common.  However,  they  are  actually  quite  similar  because  both  transitions  deal 


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 with  a  change  in  the  media  source  from  which  most  Americans  obtain  their  information. 
 The  effect  of  the  change  from  radio  to  television  was  substantial.  Pre-  television  radio 
 was  well  suited  to  provide  important  information  about  complex  subjects.  But  when 
 television  appeared,  more  Americans  began  to  obtain  their  information  from  television 
 because  of  its  increased  entertainment  potential  and  visual  imagery.  The  entertainment 
 aspect  of  TV  attracted  a  larger  audience  and  the  overall  result  of  this  was  that  television 
 became  more  concerned  about  entertainment  and  less  concerned  about  providing  detailed 
 information  to  Americans.  The  shift  from  analog  television  to  DTV  is  similar  to  the  shift 
 from  radio  to  television  in  that  it  is  a  transition  from  the  major  source  where  most 
 Americans  get  their  information  (analog  TV)  to  a  more  entertainment  based  source  where 
 most  Americans  will  get  their  information  (DTV).  However,  the  shift  from  analog  TV  to 
 DTV  has  the  unique  opportunity  to  lay  a  foundation  of  enhanced  public  interest 
 programming  during  its  transition  period.  If  more  attention  was  paid  to  public  interest 
 programming  in  the  transition  period  between  radio  and  television,  then  possibly  the 
 entertainment  aspect  of  television  would  not  so  grossly  outweigh  the  other  aspects  of 
 television.  Therefore,  it  is  important  to  stress  public  interest  programming  during  the 
 transition  from  analog  TV  to  DTV  so  that  the  entertainment  aspect  of  DTV  does  not 
 totally  encompass  the  airwaves. 
 II.  Increased  Costs  of  DTV 
 The  transition  from  analog  TV  to  DTV  and  HDTV  is  unique  in  that  the  new  media 


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 form  will  completely  supplant  the  old  analog  media  form.  This  type  of  transition  is 
 different  from  past  media  transitions  such  as  network  TV  to  cable  TV  and  radio  to 


 television  because  after  transitions  such  as  these,  a  consumer  could  still  use  his  or  her 
 older  equipment  to  get  a  signal  and  access  information  or  entertainment.  After  the 
 transition  from  radio  to  television,  a  consumer  could  still  use  his  or  her  radio.  After  the 
 transition  from  network  to  cable  TV,  a  consumer  could  still  use  his  or  her  television  to 
 obtain  network  or  cable  television  programming.  The  transition  from  analog  to  DTV  and 
 HDTV  is  different.  In  order  for  a  consumer  to  enjoy  DTV  or  HDTV  he  or  she  must 
 purchase  a  special  set  of  equipment.  A  consumers  old  analog  equipment  cannot  be  used 
 to  access  DTV  or  HDTV. 
 The  fact  that  consumers  cannot  automatically  access  this  new  media  form  poses 
 certain  problems  concerning  the  public  interest  requirements  that  the  FCC  decides  to 
 impose  upon  DTV  and  HDTV  when  it  has  completely  supplanted  analog  television.  The 
 main  problem  that  arises  is  that  DTV  and  HDTV  equipment  is  considerably  more 
 expensive  than  analog  television  sets.  Consumer  will  have  to  pay  a  large  amount  of 
 money  in  order  to  use  DTV  because  their  old  analog  sets  will  not  be  useful  anymore.  This 
 was  a  concern  of  Congress  when  it  enacted  the  Telecommunications  Act  1996.  The 
 legislative  history  of  the  Telecommunications  Act  states: 
 [t]  he  Committee  is  particularly  concerned  that  the  consumer 
 equipment  necessary  to  implement  digital  technology  will  be 
 too  expensive  for  most  consumers.  Some  observers  have 
 estimated,  for  example,  that  the  cost  of  a  digital  converter 


 4 
355
 is  expected  to  be  in  the  $400-$  500  range,  with  monthly 
 charges  in  excess  of  $4. 


 Act  of  Feb.  1,  1996,  Pub.  L.  No.  104-  104,  1996  U.  S.  C.  C.  A.  N.  (110  Stat.  56)  75.  The 
 $400-$  500  estimate  given  by  Congress  is  likely  a  low  estimate.  An  article  in  Popular 
 Science  states  that: 


 [a]  DTV  ready  set  costs  about  twice  that  of  an  analog 
 TV  ($  1,800  for  Panasonics).  In  most  cases,  its  a 
 4-  by-  3  ratio  screen,  so  it  cant  display  16-  by-  9 
 ratio  broadcasts  without  either  cropping  the  image  or 
 using  only  a  portion  of  the  screen.  And  you  have  to  buy 
 a  decoder  box  costing  $1500~$  2500  to  receive  digital 
 signals.  Thats  a  lot  for  satellite-  level  quality,  but  only 
 half  the  cost  of  an  HDTV. 


 Suzanne  Kantra  Kirschner,  HDTV  Comes  Home,  Popular  Science,  Fall  1999,  at  96.  The 
 combined  prices  of  a  television  set,  decoder  box,  and  antenna  can  range  from  $4,000- 
 $25,000.  The  television  sets  alone  range  from  $1,800  up  to  $22,000.  The  fact  that  DTV 
 equipment  is  much  more  expensive  than  analog  equipment  creates  a  problem  with  regard 
 to  the  FCCs  public  interest  requirements  in  that  the  overall  effectiveness  of  public 
 programming  will  be  lessened  if  the  general  public  cannot  access  that  programming.  This 
 problem  is  unique  to  the  analog/  DTV  shift  because  other  media  shifts  throughout  history 
 have  allowed  the  consumer  to  have  the  option  of  using  his  or  her  older  form  of  media  to 
 access  information.  The  transition  to  DTV  does  not  give  consumers  that  option.  The 
 transition  to  DTV  will  not  even  give  broadcasters  the  option  of  broadcasting  with  analog 
 equipment  after  the  changeover  date  has  passed.  Thus  the  transition  to  DTV  not  only 


 5 
356
 results  in  increased  costs  for  consumers,  but  also  results  in  increased  costs  for 
 broadcasters  who  must  buy  special  equipment  to  survive  in  a  digital  world.  What  about 
 the  consumers  who  cannot  afford  the  increased  prices  of  DTV  technology?  What  about 
 the  consumers  who  prefer  analog  TV?  What  about  the  consumers  who  prefer  black  and 
 white  TV?  What  about  the  smaller  broadcasters  who  cannot  compete  because  they  cannot 
 afford  digital  technology?  These  are  questions  that  should  be  considered  when  a 
 complete  replacement  of  a  form  of  media  is  contemplated,  especially  when  the  new  form 
 is  considerably  more  expensive  than  the  old  form.  I  understand  that  prices  are  high  now 
 because  the  technology  is  new.  But  even  if  the  prices  go  down  in  the  future,  public 
 interest  programming  after  the  transition  to  DTV  will  not  be  immediately  accessible  to  the 
 general  public  because  the  general  public  was  waiting  for  prices  to  go  down.  Therefore, 
 the  cost  of  DTV  and  HDTV  must  be  caretilly  considered  so  that  the  general  public  will 
 have  access  to  the  general  information,  entertainment,  and  public  interest  programming 
 provided  by  DTV. 
 Conclusion 
 The  transition  to  DTV  entails  a  media  shift  from  one  entertainment  source  where 
 the  majority  of  Americans  obtain  their  information  (analog  TV)  to  an  even  more 
 entertainment  related  source  (DTVEIDTV)  where  most  Americans  will  presumably 
 obtain  their  information.  This  enhanced  entertainment  value  seems  to  be  the  main  feature 
 of  DTV/  HDTV.  Aside  from  features  such  as  multicasting  and  datacasting,  the  main 


 6 
357
 technological  advancement  of  DTV  seems  to  be  that  the  picture  looks  better.  DTV  will 
 possess  the  same  entertainment  appeal  that  analog  TV  did,  and  as  a  result,  the 
 entertainment  aspect  of  DTV  will  grossly  outweigh  the  public  interest  aspect  of  DTV. 
 This  problem  of  making  public  interest  programming  noticeable  on  DTV  should  not  be 
 approached  by  tailoring  public  interest  requirements  to  the  new  technology  DTV  has  to 
 offer.  No  one  is  going  to  pay  more  attention  to  public  interest  programming  just  because 
 the  picture  is  a  little  clearer.  The  FCCs  public  interest  requirements  should  instead  be 
 reconsidered  and  implemented  during  the  transition  from  analog  TV  to  DTV.  This 
 transition  period  presents  a  unique  opportunity  to  lay  a  foundation  for  better  public 
 interest  programming  before  everyone  has  focused  all  their  attention  on  how  much  better 
 that  explosion  looked  on  DTV.  A  transition  period  such  as  the  one  during  the  shift  to 
 DTV  was  not  present  during  the  shift  from  radio  to  TV.  Perhaps  revamped  public  interest 
 requirements  implemented  early  on  in  the  transition  will  have  a  beneficial  effect  down  the 
 road. 
 The  transition  from  analog  TV  to  DTV  and  HDTV  is  not  just  another 
 technological  advancement.  Advanced  television  systems  such  as  DTV  and  HDTV  are 
 different  from  technological  advancements  in  the  past  because  this  time  the  new 
 technology  is  completely  supplanting  the  old  technology.  A  consumer  who  has  analog 
 TV  equipment  will  not  be  able  to  use  that  equipment  once  the  switch  to  digital  television 
 completely  takes  place.  This  was  not  the  case  when  the  media  shift  from  radio  to 


 7 
358
 television  took  place,  nor  was  it  the  case  when  the  shift  from  network  TV  to  cable  TV 
 took  place.  In  those  instances  a  consumer  could  always  choose  to  utilize  his  or  her  older 
 equipment.  In  the  case  of  DTV,  a  consumer  will  have  to  purchase  a  rather  expensive  set 
 of  equipment  in  order  to  access  DTV.  It  is  entirely  possible  that  some  consumers  might 
 not  like  DTV  or  might  not  be  able  to  afford  DTV  at  first.  Thus  any  public  interest 
 programming  that  takes  place  after  the  complete  transition  to  DTV  might  not  be 
 accessible  by  the  general  public.  In  order  to  solve  this  problem,  DTV  should  be  made 
 optional  both  to  the  consumer  and  to  the  broadcaster.  The  legislative  history  of  the  1996 
 Telecommunications  Act  states  as  its  purpose  to    promote  competition  and  reduce 
 regulation  in  order  to  secure  lower  prices  and  higher  quality  services  for  American 
 telecommunications  consumers  and  encourage  the  rapid  development  of  new 
 telecommunications  technologies.  Act  of  Feb.  1,1996,  Pub.  L.  No.  104-  104,  1996 
 U.  S.  C.  C.  A.  N.  (110  Stat.  56)  11.  I  dont  understand  how  eliminating  from  the  market 
 those  broadcasters  who  cant  afford  to  immediately  switch  over  to  DTV  technology 
 promotes  competition.  Nor  do  I  understand  how  increasing  the  prices  of  television 
 equipment  constitutes  securing  lower  prices.  After  every  other  media  shift  in  this 
 country,  the  consumer  and/  or  broadcaster  has  always  retained  a  choice  in  deciding 
 whether  or  not  to  utilize  the  newest  and  most  expensive  technology.  A  consumer  could 
 still  choose  to  use  a  radio  from  19  12  if  he  or  she  desires.  In  my  opinion,  the  transition 
 from  analog  TV  to  DTV  should  be  no  different. 


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 ADMINISTRATIVE  LAW  COMMENTS 
 Submitted  by:  Katrina  Shepherd 
 Submitted  to:  Professor  Reynolds 


 March  17.2000 


 ._.  __-.__  xI...-  ._-__^  ____  ._...__  ----  --- 
360
 IntroductionBackmound 
 On  January  26,2000,  the  Federal  Communications  Commission  issued  an  advance  notice 
 of  proposed  rule  making  regarding  the  public  interest  obligations  of  television  broadcast 
 licensees.  Advance  Notice  of  Proposed  Rule  making,  65  Fed.  Reg.  4211  (Jan.  26,200O).  This 
 notice  of  proposed  rule  making  solicited  comments  on  how  broadcasters  can  best  serve  the  public 
 interest  as  broadcasters  make  the  transition  from  the  traditional  National  Television  Standard 
 Committees  analog  televisions  to  the  technologically  advanced  High  Definition  Televisions 
 (HDTV).  By  the  year  2006,  and  probably  later,  the  television  that  almost  every  American  has  in 
 their  home  will  be  obsolete.    This  is  due  to  the  fact  that  the  analog  television  sets  that  most  of  us 
 own  will  be  off  the  air.  The  Federal  Communications  Commission  initially  decided  to  move 
 from  analog  television  to  let  over-  the-  air  broadcasters  offer  high  definition  programs,  but  the 
 FCC  later  realized  that  High  Definition  Television  provided  new  opportunities  for  television 
 programming.    The  technological  advancement  of  High  Definition  Television  can  provide 
 broadcasters  with  better  ways  of  fulfilling  their  public  interest  obligations. 
 One  of  the  areas  of  public  interest  for  which  High  Definition  Television  may  have  a 
 profound  effect  involves  disaster  warnings.  As  a  law  student  and  interested  citizen,  I  am  writing 


 HDTV:  The  Future  of  Television  (visited  March  13,  2000) 
 chttp://  coverage.  cnet.  com/  Content/  Gadg;  endex.  html>. 


 2Current  Briefing:  Public  TV  Goes  Digital  and  High  Definition  (visited  March  13,200O) 
 <http://  www.  current.  org/  dtv/>. 
361
 this  comment  in  response  to  the  Advisory  Committees  recommendation  that  broadcasters  should 
 work  with  the  appropriate  emergency  communications  specialists  and  manufacturers  to 
 determine  the  most  effective  means  to  transmit  disaster  warning  information.  The  committee 
 advises  that  the  means  chosen  to  transmit  these  warnings  should  be  minimally  intrusive  on  the 
 bandwidth  and  not  result  in  undue  additional  burdens  or  costs  on  broadcasters.  Because  of  the 
 potential  applications  of  High  Definition  Television,  it  is  my  contention  that  this 
 recommendation  could  and  should  be  met. 
 Discussion 


 Many  towns  and  cities  throughout  this  country  do  not  benefit  from  local  disaster  warning 
 systems.  This  is  because  many  of  these  cities  or  towns  cannot  afford  to  purchase  these  systems. 
 The  people  who  live  in  these  towns  and  cities  rely  on  the  warning  information  they  receive  from 
 or  during  television  broadcasts.  If,  as  the  Advisory  Committee  Report  explains,  digital 
 technology  will  provide  innovative  and  new  ways  to  transmit  warnings,  such  as  pinpointing 
 specific  households  or  neighborhoods  at  risk;  then  broadcasters  would  be  providing  a  tremendous 
 public  service  by  taking  advantage  of  these  technological  advances.  If  we  were  to  conduct  a 
 cost-  benefit  analysis,  it  would  be  clear  that  the  benefit  of  saving  lives  would  far  outweigh  any 
 costs  that  may  be  incurred  by  broadcasters. 
 Capabilities  that  Digital  Television  Can  Give  to  Broadcasters  to  Deliver  Disaster-  Related 
 Information 


 How  can  digital  television  help  broadcasters  effectively  transmit  disaster  warning 
 information?  To  answer  this  question,  it  may  be  best  to  examine  some  of  the  technological 


 2 
362
 benefits  that  digital  television  can  provide  in  order  to  determine  how  these  advancements  can  be 
 used  to  transmit  disaster  warning  information.  Some  of  the  technological  advancements  of 


 digital  television  that  I  believe  may  have  an  important  impact  on  the  transmission  of  disaster 
 warning  information  includes:  the  width-  to-  height  ratio  of  the  digital  television  screen,  the 
 capability  of  digital  television  to  receive  the  new  Emergency  Alert  System,  the  capability  of 
 digital  television  to  conduct  multicasting,  and  the  capability  of  digital  television  to  interact  with 
 the  Internet. 
 Width-  to  Height  Ratio 


 First,  digital  television  is  a  new  way  to  transmit  programming  material,  such  as  the 
 transmission  of  disaster  warning  information.  A  digital  television  has  the  potential  to  provide 
 much  more  information  on  your  television  set.  By  transmitting  the  information  used  to  make  a 
 television  picture  and  sound  as  data-  bits  (  as  does  a  computer),  a  digital  broadcaster  can  carry 
 more  information  than  is  currently  possible  with  analog  broadcast  technology.  3  Digital 
 television  boasts  a  16:  9  wide  screen  picture  as  opposed  to  the  4:  3  wide  screen  picture  of  current 
 television  models.    Because  of  the  larger  screens,  emergency  information  can  be  displayed  at  the 
 same  time  that  a  program  is  being  shown  without  substantially  obscuring  the  regular  program. 
 Information  can  be  displayed  on  more  than  one  line  at  a  time.  The  viewer  can  receive  all  of  the 
 information  at  once.  If  the  information  is  taking  up  less  space  on  the  screen,  then  the  information 
 can  remain  on  the  screen  for  a  longer  period  of  time.  Therefore,  the  viewer  can  be  sure  to  see  the 


 3Digital  Television  Tower  Siting  Fact  Sheet  and  Frequently  Asked  Questions  (visited 
 March  14,200O)  <http://  www.  fcc.  gov/  mmb/  prd/  dtv/>. 


 HDTV,  The  Future  of  Television,  supra  note  1,  at  1. 
 3 


 -  --___  I...-  ._.  x_.  ,_~_--.--  _-___  .-. 
363
 warning  at  any  time  rather  than  risk  the  possibility  of  missing  the  warning  by  leaving  the  room 
 during  the  same  interval  when  the  warning  is  flashed  on  the  screen. 
 Capability  to  Receive  the  Emergency  Alert  System 


 Second,  the  all  digital  television-  broadcast  signal  of  High  Definition  Television  will  be 
 receptive  to  the  new  Emergency  Alert  System  because  the  Emergency  Alert  System  uses  digital 
 technology  to  distribute  messages.  5  As  I  understand  it,  the  Emergency  Alert  System  replaced  the 
 Emergency  Broadcast  System,  which  was  created  in  1963  to  provide  the  President  with  a  means 
 to  address  the  American  people  in  the  event  of  a  national  emergency.  6  This  new  system 
 replaced  the  weekly  only  a  test  message  with  less  obtrusive  weekly  tests  and  shorter,  monthly 
 on-  air  tests  for  television  and  radio  stations.  7  Television  stations  are  also  required  to  transmit  a 
 visual  message  once  a  month.  *  These  messages  are  supposed  to  last  for  a  duration  of  about  eight 
 seconds.   
 Because  of  the  digital  nature  of  the  new  Emergency  Alert  System  and  High  Definition 
 Television,  the  potential  for  automated  operation  can  be  viewed  as  a  cost  efficient  benefit  for 
 broadcasters.  The  Emergency  Alert  System  uses  digital  system  architecture  that  will  allow 
 broadcast  stations,  cable  systems  participating  satellite  companies,  and  other  services  to  send  and 


 Emergency  Alert  System  Fact  Sheet  (visited  March  14,  2000) 
 <http://  www.  fcc.  gov/  easfact.  html>. 


 61d  at  1.  A 
 71d.  at  1. 
 81d.  at  1. 
 91d  at  1.  - 
364
 receive  emergency  information  quickly  and  automatically.  Therefore,  by  utilizing  these  new 
 technologies,  broadcasters  could  continue  providing  this  national  service  without  at  least  one 
 additional  cost  because  they  would  not  have  to  employ  individuals  just  to  operate  the  alert  system 
 in  the  event  a  national  emergency  should  arise. 
 Multicasting  Capabilities 


 Third,  digital  television  provides  technology  that  can  facilitate  multicasting  capabilities 
 that  could  assist  broadcasters  in  their  transmission  of  disaster  warning  information.  Multicasting 
 capabilities  allow  stations  to  air  four,  six  or  more  standard  definition  program  streams  at  a  time. 
 This  technology  also  allows  stations  to  broadcast  various  data  and  audio  channels. 
 Broadcasters  have  been  granted  free  bandwidth  for  use  with  the  transition  to  High  Definition 
 Television.  High  Definition  Television  requires  a  bandwidth  of  6MHz,  which  is  four  times  that 
 of  a  normal  analog  signaLl  This  means  that  a  traditional  television  network  could  broadcast  its 
 regular  network  programming  as  well  as  have  two  other  stations  broadcasting  different  programs, 
 and  network  broadcasters  would  still  have  free  signal  space  that  could  be  used  for  any  purpose 
 the  broadcaster  chooses.  The  broadcaster  could  use  this  extra  signal  space  for  the  transmission  of 
 emergency  information.  Since  the  government  has  already  developed  a  plan  that  would  involve 
 broadcasters  returning  the  free  parts  of  the  broadcast  spectrum  to  the  government  to  be  used  for 


   a  at  2. 
 The  Future  of  Television,  supra  note  1,  at  3. 
 12HDTV:  Join  the  Resolution  (visited  March  13,  2000) 
 <httn://  www.  sinfonia.  net/  mike/  hdtv/  faa.  html>. 


 131d.  at  3. 
 5 


 -  _  --_--..-  .  -_  .---.-  -  -  .--  ,__  _,  I_  _--____  l  ---..  -.- 
365
 public  safety,  police  and  fire  usage,  the  only  thing  left  to  say  is  that  I  hope  that  this  plan  will  be 
 implemented. 


 Internet  Capabilities 


 Finally,  broadcasters  could  also  consider  utilizing  the  emerging  Internet  opportunities  that 
 have  been  opened  up  with  the  growth  of  the  digital  television  market  to  assist  them  in  the 
 transmission  of  disaster  warning  information.  The  computer  industry  is  moving  in  the  direction 
 of  data  broadcasting,  and  it  is  planning  to  make  over-  the-  air  data  reception  a  key  feature  in  future 
 products.  As  we  have  witnessed  with  the  introduction  of  WebTv  boxes,  the  television  can  be 
 used  in  conjunction  with  the  Internet.  The  digital  signals  of  High  Definition  Television  will 
 contain  a  data  channel  which  could  carry  related  information  such  as  scrolling  text  or  computer 
 software  downloads.  Television  broadcasters  could  expand  their  viewing  services  by  acting  in 
 conjunction  with  Internet  Service  Providers  to  provide  viewers  with  quick  and  easy  access  to  the 
 information  superhighway  as  a  way  to  more  effectively  transmit  warning  information. 
 People  who  live  in  rural  areas  can  have  easier  access  to  the  World  Wide  Web  by  just 
 turning  on  their  televisions.  Those  people  who  live  in  these  rural  areas  could  obtain  up  to  the 
 minute  warning  reports  by  pushing  a  button  on  their  remote  control.  For  instance,  the 
 broadcaster  and  the  Internet  Service  Provider  could  develop  an  arrangement  where  they  set  up  a 
 link  to  a  warning  center  Internet  site  that  could  be  designed  to  provide  specific  warning 
 information  to  a  particular  area.  If  a  viewer/  user  were  watching  a  television  news  broadcast  and 


 Digital  Television  99:  Navigating  the  Transition  in  the  U.  S.  (visited  March  12,  ZOOO) 
 <httn:  Nwww.  nab.  org/  Research/  Reports/  DIGITALTV.  htm>. 


 The  Future  of  Television,  supra  note  1,  at  1. 
 6 
366
 there  was  a  report  of  a  storm  warning  for  the  entire  state,  the  viewer/  user  could  access  the  link  to 
 her  area  warning  center  to  find  out  a  possible  estimation  of  the  impact  of  the  storm  on  her 


 particular  area.  In  light  of  the  fact  that  this  technology  has  not  been  developed  yet,  it  can  only  be 
 suggested  that  broadcasters  consider  this  technological  possibility  as  a  way  to  fulfill  its  public 
 interest  obligation  to  transmit  disaster  warning  information. 
 What  Role  should  the  Federal  Communications  Commission  Plav  in  the  Realization  of 
 Advisorv  Committee  Goals? 


 It  is  my  opinion  that  the  Federal  Communications  Commission  should  assume  the  role 
 that  it  has  already  assumed  on  this  issue.  I  assume  that  the  Federal  Communications 
 Commissions  role  on  this  issue  will  be  that  of  a  rule  maker.  I  suggest  that  the  Federal 
 Communications  Commission  establish  rules  that  will  ensure  that  digital  television  services 
 provided  by  broadcasters  will  incorporate  viewer  friendly  technology  that  all  citizens  can  receive. 
 Ultimately,  it  is  my  belief  and  hope  that  the  Federal  Communications  Commission  will  maintain 
 an  active  involvement  in  this  transition  from  analog  to  digital  television  and  that  this 
 Commission  will  remind  broadcasters  that  public  safety,  through  disaster  warnings,  is  a  worthy 
 incentive  to  develop  new  technology  that  will  provide  this  service. 
 Conclusion 


 In  closing,  I  would  like  to  say  that  if  consumers  are  going  to  have  to  pay  thousands  of 
 dollars  to  purchase  a  digital  television,  the  government  and  broadcasters  should  be  willing  to 
 provide  consumers  with  a  quality  product  and  service  that  can  benefit  the  public.  Digital 
 television  has  the  potential  to  broaden  the  impact  of  television  and  digital  communication  on  the 


 7 
367
 public.  Therefore,  by  taking  advantage  of  the  technological  advantages  of  digital  television,  as 
 they  may  impact  public  safety  concerns,  broadcasters  can  ensure  viewers  that  they  will  be 


 receiving  services  that  would  be  worth  every  penny  of  their  investment  in  these  new  televisions. 


 8 
 _...._..  -Ix  ...  ..-  l.._  l_--  F.  l-__--  --  _-~---.  - 
368
 William  E.  Kennard 
 Chairman 
 Federal  Communications  Commission  445  12th  Street  SW 


 Room  8B-  20  1  H 
 Washington,  DC  20554 


 RE:  CS  Docket  No.  98-  120 
 MM  Docket  No.  99-  360 
 Public  Interest  Obligation  of  Digital  Television  Broadcasters 


 Dear  Chairman  Kennard, 
 I  am  a  student  at  the  University  of  Tennessee  School  of  Law.  I  am  responding  to 
 the  request  for  public  comments,  65  Fed.  Reg.  421  l-  01,  (January  26,  2000),  Public 
 Interest  Obligations  of  Digital  Television  Broadcasters.  I  am  concerned  about  the  impact 
 digital  television  regulations  will  have  on  the  flexibility  broadcasters  will  have  in 
 carrying  out  their  public  service  obligations. 
 Introduction 
 The  Federal  Communications  Commission  is  charged  with  regulating  the 
 television  broadcast  industry  to  ensure  that  the  broadcast  licensees  serve  the  public 
 interest,  convenience,  and  necessity    as  they  are  required  to  do  in  return  for  their  free 
 use  of  the  public  airwaves.  In  carrying  out  this  duty,  the  FCC  must  be  careful  not  to 
 infringe  the  First  Amendment  rights  of  the  broadcasters2  Therefore,  the  FCC  currently 
 allows  a  great  deal  of  discretion  to  the  broadcasters  in  how  they  perform  their  public 
 interest  services.  The  FCC  should  formulate  a  set  of  guidelines  that  will  be  minimally 


 1 
 Angela  R.  Bolton 
369
 intrusive  upon  the  broadcasters  discretion  to  air  programs  that  will  appeal  to  the  tastes  of 
 the  communities  that  they  serve.  In  order  to  maximize  broadcaster  discretion  any  new 
 requirements  should  be  phased  in  over  time  and  should  focus  on  enhancing  access  to 
 television  media  by  those  who  are  disabled. 
 Ensuring  Broadcaster  Discretion 


 At  the  present  time,  broadcasters  serve  the  public  interest  in  a  variety  of  ways.  In 
 the  process,  they  have  discovered  that  serving  the  public  interest  also  serves  their  own 
 financial  interest.  I  have  always  found  the  advertisements  for  local  news  stations  to  be 
 amusing.  They  rarely  talk  about  their  news-  gathering  abilities.  Instead  they  tout  how 
 much  they  care  about  the  community  and  brag  about  all  the  good  things  that  they  do. 
 While  I  laugh  at  their  lack  of  modesty,  the  fact  remains  that  these  stations  do  a  lot  of 
 good  things  for  the  communities  they  serve.  They  host  telethons  and  other  fundraisers 
 for  charities,  inform  the  public  of  community  events,  let  their  viewers  know  of  public 
 health  risks  and  dangerous  weather  conditions,  and  the  list  continues.  According  to  the 
 National  Association  of  Broadcasters,  $6.85  billion  was  spent  by  broadcasters  in 
 fulfilling  the  obligation  to  serve  the  public  interest,  convenience  and  necessity.  3 
 However,  the  broadcasters  motive  in  all  of  this  public  service  is  not  purely 
 altruism.  Nor  is  it  merely  compliance  with  FCC  regulations.  Public  interest  programming 
 attracts  viewers  to  watch  local  television.  In  fact  such  services  are  important  functions 
 for  all  media.  For  example,  newspapers  are  not  subject  to  FCC  regulations  but  perform 
 many  of  the  same  services.  Keeping  the  public  informed  and  participation  in  the 


   Communications  Act  of  1934,  chap.  652,  sec.  303. 
   See,  Turner  Broadcasting  Svstem,  Inc.  v.  FCC,  5  12  U.  S.  622,650  (1994). 
 3  National  Association  of  Broadcasters,  Broadcasters,  Bringing  Community  Service  Home, 
 April  1998,  p.  2. 
 2  Angela  R.  Bolton 


 .,..._.  -_____  l_-  --. 
370
 community  sells  newspapers.  Similarly,  broadcasters  make  money  by  spending  money 
 for  public  service. 
 Digital  television  will  offer  new  ways  for  the  broadcast  licensees  to  fulfill  their 
 public  service  obligations.  Broadcasters  also  have  financial  incentives  to  offer  these  new 
 services  to  the  public.  If  they  provide  more  services  and  better  quality  programming, 


 then  more  people  will  choose  to  watch  their  stations.  Advertisers  will  pay  more  to  have 
 their  advertisements  shown  on  popular  stations.  That  is  simple  economics. 
 Unfortunately,  an  economic  analysis  is  not  well-  suited  to  the  broadcast  industry 
 because  it  is  not  an  true  free  market.  Only  those  broadcasters  who  agree  to  serve  the 
 public  interest,  convenience,  and  necessity  may  become  licensed  to  use  the  airwaves. 
 A  problem  exists  when  it  comes  to  deciding  what  exactly  is  in  the  public  interest. 
 Apparently,  it  means  much  more  than  just  what  interests  the  public,  otherwise  Howard 
 Stern  and  Jerry  Springer  would  qualify  as  public  interest  programming  because  of  the 
 large  number  of  viewers.  In  defining  the  public  interest,  the  FCC  must  be  careful  to  not 
 impose  upon  [the  broadcasters]  its  private  notions  of  what  the  public  ought  to  hear.  4 
 There  are  some  things  that  are  unquestionably  in  the  public  interest.  For  example, 
 no  reasonable  person  would  dare  suggest  that  broadcasters  do  not  have  a  responsibility  to 
 report  that  a  dangerous  storm  is  approaching  a  community  in  its  service  area.  Other  items 
 such  as  public  service  announcements  are  somewhat  trickier,  however.  Public  service 
 announcements  can  be  very  informative.  They  often  can  be  little  reminders  not  to  use 
 drugs  or  can  teach  a  lesson  in  respecting  others.  Such  announcements  have  public  value 
 and  so  clearly  serve  the  public  interest.  However,  there  are  also  other  public  service 


 4  Network  Programming  Inquiry,  Report  and  Statement  of  Policy,  25  Fed.  Reg.  7293  (1960).  3 
 Angela  R.  Bolton 


 -_  .  _  -  -.  _  _  _ll--_  l_-._-..-__-.-  --_  I_. 
 _____  .-__- 
371
 announcements  that  are  somewhat  controversial.  Such  announcements  could  discuss  sex 
 or  the  use  of  condoms  or  refer  to  homosexuality.  While  I  personally  feel  that  such 
 announcements  also  serve  the  public  interest,  I  can  understand  the  position  some 


 broadcasters  find  themselves  in  when  they  have  to  decide  whether  or  not  to  air  such 
 announcements.  They  have  to  serve  the  community  they  are  in  and  attempt  to  maintain 


 their  audience.  Other  broadcasters  may  have  to  decide  whether  to  include  religious 
 organization  events  in  their  schedules.  The  broadcaster  is  in  the  best  position  to 
 determine  what  the  community  it  serves  wants  to  watch  and  should  continue  to  be 
 allowed  the  discretion  to  choose  how  best  to  fulfill  its  public  duties  in  the  least 
 burdensome  way. 
 Another  potential  problem  with  requiring  greater  public  interest  obligations  for 
 broadcast  licensees  is  that  compliance  could  be  so  costly  that  many  smaller  broadcasters 
 will  not  be  able  to  afford  it.  These  broadcasters  would  lose  their  license  and  the  First 
 Amendment  right  to  free  speech  would  be  thereby  be  limited. 
 Currently,  the  broadcaster  has  plenty  of  flexibility  in  determining  the  content  of 
 its  programming.  More  specific  guidelines  could  reduce  that  flexibility.  In  effect,  the 
 FCC  would  be  dictating  the  content  of  what  the  broadcast  licensee  airs  on  its  station, 
 which  it  clearly  cannot  do  without  infringing  the  First  Amendment.  Steps  need  to  be 
 taken  to  ensure  the  greatest  amount  of  discretion  to  broadcasters  as  to  the  content  of  their 
 programming. 
 New  Requirements  Should  Be  Phased  in  Over  Time 
 Any  new  requirements  for  the  broadcast  licensees  should  be  phased  in  over  time. 
 Digital  television  is  a  new  concept.  Although  success  is  likely,  no  one  is  sure  exactly 


 4  Angela  R.  Bolton 
372
 how  successful  it  will  be  or  even  if  it  will  ultimately  be  successful.  Any  guidelines 
 should  be  phased  in  to  reflect  the  acceptance  of  digital  television  in  the  marketplace. 
 A  more  important  question  is  when  the  transition  from  analog  to  digital  television 
 will  actually  be  completed.  Right  now,  people  are  not  going  out  and  buying  digital 
 televisions.  They  are  purchasing  much  less  expensive  analog  televisions.  They  will 


 continue  to  do  so  until  digital  television  sets  become  affordable  which  does  not  seem  to 
 be  likely  to  happen  any  time  soon.  The  new  requirements  for  digital  television  should  be 
 phased  in  gradually  as  the  television  sets  become  more  popular. 
 Broadcasters  should  not  necessarily  be  required  to  do  more  just  because  they  will 
 be  able  to  do  more.  Compliance  with  the  guidelines  will  be  costly  to  the  broadcasters.  If 
 broadcasters  are  required  to  follow  guidelines  too  early  they  may  have  less  money  to 
 spend  on  services  in  the  future  while  they  attempt  to  recoup  their  early  investments. 
 They  may  also  have  less  money  to  spend  to  perform  the  services  they  are  currently 
 performing. 
 The  FCC  could  work  with  the  broadcast  industry  to  develop  a  set  of  guidelines  for 
 digital  television  when  it  is  fully  active.  During  the  transition  period,  compliance  with 
 the  guidelines  would  be  voluntary.  The  transition  period  would  serve  as  a  testing  period 
 to  gauge  the  capabilities  of  digital  television.  The  FCC  would  then  be  in  a  better  position 
 to  analyze  what  digital  television  will  realistically  be  able  to  do.  It  will  then  be  able  to 
 determine  the  public  service  obligations  of  the  broadcasters  in  the  digital  television  era 
 based  upon  more  than  an  assumption  that  digital  television  will  be  a  huge  success  that 
 will  revolutionize  television  viewing. 


 5  Angela  R.  Bolton 
373
 The  Gore  Commission  has  suggested  voluntary  self-  regulation  as  an  alternative 
 to  mandatory  government  regulation.  The  broadcasters  could  formulate  their  own  set  of 


 guidelines.  Compliance  would  be  voluntary  but  the  peer  pressure  effect,  also  called 
 competition,  would  create  an  incentive  for  the  broadcasters  to  follow  the  guidelines.  I 
 agree  with  this  approach  while  digital  television  is  still  in  its  infancy.  However,  as  digital 
 television  becomes  more  common,  the  guidelines  would  become  mandatory  for  license 
 renewal. 
 As  digital  television  evolves,  the  FCC,  broadcasters,  and  other  concerned  citizens 
 may  see  that  changes  need  to  made.  Phasing  new  requirements  for  digital  television  in 
 over  time  creates  a  mechanism  for  adapting  to  the  changes  and  any  unforeseen 
 consequences  of  the  digital  television  era. 


 Enhancing  Access  to  Television  Media 
 An  important  part  of  the  public  service  of  television  broadcasters  is  their 
 obligation  to  make  the  television  media  accessible  to  persons  with  disabilities.  Such 
 persons  would  often  not  be  considered  in  the  absence  of  regulation.  Television  is  a  major 
 source  of  information  for  Americans.  Disabled  Americans  deserve  access  to  that 
 information.  Any  steps  that  can  improve  that  access  should  be  required. 
 Much  of  television  depends  upon  the  advertisers.  After  all,  television 
 broadcasters  make  their  money  by  selling  advertisements.  Popular  shows  generate  more 
 advertising  dollars  than  non-  popular  shows.  Persons  with  disabilities  are  not  a  big  focus 
 group  for  marketers.  Services  to  provide  television  access  to  persons  with  disabilities 
 cost  money  without  generating  any  return  on  the  investment.  Profit-  motivated 


 5  The  Advisory  Committee  on  Public  Interest  Obligations  of  Digital  Television  Broadcasters  created  6 
 Angela  R.  Bolton 
374
 broadcasters  may  want  to  keep  this  expense  to  a  minimum.  It  is  therefore  important  for 
 the  FCC  to  prevent  the  disabled  from  being  left  out  of  the  advantages  of  digital  television. 


 Clearly,  providing  access  to  the  disabled  is  in  the  public  interest.  It  is  a  service 
 that  only  the  television  broadcasters  can  provide.  Broadcasters  are  currently  required  by 
 the  Telecommunications  Act  of  1996  to  provide  closed  captioning  for  the  hearing- 
 impaired  on  specific  programs.  6  With  digital  television,  the  broadcasters  will  be  able  to 
 provide  even  more  services. 
 Under  current  regulations,  broadcasters  are  only  required  to  provide  closed 
 captioning  for  certain  programs.  Under  digital  television,  there  should  be  no  limit  to  the 
 programs  that  should  be  closed  captioned.  Description  services  for  the  blind  could  also 
 be  enhanced  for  all  programs. 
 It  is  especially  important  that  closed  captioning  and  description  services  be 
 enhanced  for  political  programming  and  other  public  affairs  programming.  For  instance, 
 news  shows  are  closed-  captioned  but  the  features  are  not  closed-  captioned.  The  viewer 
 who  is  hearing-  impaired  gets  to  learn  everything  the  reporter  says  but  nothing  the 
 characters  in  the  features  say.  Since  digital  television  is  supposed  to  be  such  a  vast 
 improvement  over  analog  television,  surely  it  could  solve  this  simple  problem. 
 Another  problem  with  closed  captioning  is  that  the  fonts  used  are  often  hard  to 
 read.  Sometimes  the  location  of  the  fonts  on  the  screen  interferes  with  the  informational 
 captioning  on  the  screen.  The  broadcaster  should  be  required  to  format  the  fonts  in  such 
 a  way  that  the  viewer  will  be  able  to  read  them  more  clearly.  The  viewer  should  be  able 


 pursuant  to  Exec.  Order  No.  13,038,  62  Fed.  Reg.  12,065  (1997). 
 6  The  Telecommunications  Act  of  1996,  Pub.  L.  No.  104-  104,  110  Stat.  56  (codified  at  47  USC.  5  151,  et. 
 seq.)  (Feb.  8,  1996).  7 


 Angela  R.  Bolton 
375
 to  change  the  size  and  text  of  the  captioning  to  make  it  more  readable.  The  viewer  should 
 also  be  able  to  change  the  location  of  the  fonts  on  the  screen. 
 Improving  services  to  the  disabled  should  be  a  primary  focus  of  digital  television 
 regulation  by  the  FCC.  The  disabled  could  all  too  easily  be  left  out  of  the  digital 
 revolution  without  the  aid  of  the  FCC. 
 Conclusion 
 Digital  television  promises  to  be  an  exciting  and  valuable  resource  in  the  future. 
 That  future  is  very  near.  In  the  meantime,  the  FCC  should  proceed  cautiously  in 
 regulating  the  new  industry.  Broadcast  licensees  should  be  required  to  continue 
 performing  all  of  their  current  obligations  but  should  also  continue  to  be  allowed  great 
 discretion  in  how  to  fulfill  those  obligations.  Any  new  obligations  should  be  imposed 
 gradually  in  response  to  industry  changes  and  the  FCC  should  continue  to  ensure  that 
 persons  with  disabilities  have  the  greatest  possible  access  to  the  media  that  is  available. 
 Such  caution  could  help  to  determine  the  success  of  digital  television  so  that  it  can 
 provide  the  maximum  the  public  services. 
 Respectfully, 


 Angela  R.  Bolton 


 8  Angela  R.  Bolton 
376
 Mm  2  3  2000  To:  Magalie  Roman  Salas,  Secretary-  FCC 
 From:  Stephen  E.  Verotsky  RI% 
 cc:  Professor  Glenn  H.  Reynolds 
 Date:  March  15,  2000 
 Re:  Docket  No.  99-  360.  Comment  on  the  public  interest 
 obligations  of  digital  television  broadcast  licensees. 


 Dear  Secretary  Salas, 
 In  response  to  the  FCC's  request  for  public  comment, 
 47  C.  F.  R.  pt.  73  (99-  3601,  I  want  to  express  my  views  as  a 
 law  student  at  the  University  of  Tennessee.  I  believe  that 
 the  FCC  should  not  only  ensure  that  broadcasters  intensify 
 their  commitment  to  serve  the  public  interest  but  also 
 ensure  that  broadcasters  will  be  able  to  compete  with  cable 
 and  other  multiple  channel  programming. 


 Introduction 
 When  Congress  passed  the  Telecommunications  Act  of 
 1996,  it  endowed  broadcasters  with  a  valuable  commodity: 
 the  use  of  the  digital  spectrum.  In  exchange  for  this 
 valuable  asset,  broadcasters  were  put  on  notice  that  they 
 should  expect  an  increased  obligation  to  serve  the  public 
 interest.  The  rationale  for  increasing  broadcaster's 
 public  interest  obligations  is  that  if  broadcasters  benefit 
 from  the  transition  to  digital  television,  then  the 
 American  people,  who  have  entrusted  the  broadcast  media 


   -.  .-  ..,    ^  _._---._-...-.___  X____  I_ 
 -  -..-  -.-  -l._,_-  X_ 
377
 with  integrating  vital  public  goals  into  a  commercial 
 setting,  should  also  benefit. 
 Broadcasting  companies  are  expecting  to  profit  by 


 switching  to  the  digital  spectrum.  They  are  currently 
 making  large  capital  expenditures  by  purchasing  equipment, 


 erecting  towers,  and  converting  programming  to  digital 
 formats.  However,  broadcasters  and  many  economists  are  not 


 certain  what  effect  digital  broadcasting  will  have  on 
 revenues  because  it  is  hard  to  predict  how  digital 
 broadcasting  will  develop.  For  example,  when  will  receiver 
 costs  come  down  to  appeal  to  a  large  audience;  when  will 
 digital  supplant  analog  broadcasting;  and  to  what  extent 
 will  broadcasters  rely  on  a  high  definition  signal  or 
 multiple  channel  multiplexing. 
 Given  these  economic  and  technological  uncertainties, 
 increasing  the  public  interest  obligations  of  digital 
 broadcasters  may  delay  the  long  anticipated  competition  to 
 cable  and  other  multiple  channel  programming  that  digital 
 broadcasting  may  bring.  However,  with  careful  attention 
 given  to  the  harm  that  any  regulation  may  cause  consumers, 
 this  is  a  risk  that  must  be  taken.  Competitive  forces  in 
 the  television  market  have  had  an  array  of  harmful  effects, 
 ranging  from  inadequate  programming  for  children,  to 
 substance-  free  and  scandal-  pervaded  treatment  of  political 


 2 


 -  .---  -  -  ..-  ----  .-..  _I_  _. 
 --  -_  I-_-  -_.~  -  -_  l.  ll-  ll. 
378

379
 issues,  to  news  as  ninfotainment.  N  The  FCC  needs  to 
 counteract  these  prevailing  market  forces  by  (1)  providing 
 adequate  funding  for  public  broadcasting,  (2)  providing 
 economic  incentives  to  broadcasters  to  address  local 
 issues,  and  (3)  increasing  the  disclosure  obligations  of 


 broadcasters. 


 Increase  Funding  for  Public  Broadcasting 
 Digital  broadcasting  will  be  available  to  most  people 
 in  America  free  of  charge.  Unfortunately,  these  same 
 people  would  rather  watch  professional  wrestling  and  Jerry 
 Springer.  Broadcasters  have  responded  to  these  preferences 
 with  even  more  sensationalistic,  violent,  or  prurient 
 programming.  Although  the  FCC's  role  is  not  to  change  the 
 preferences  of  consumers,  the  FCC  can  ensure  that  viewers 
 who  want  educational  programs  for  their  children  and  public 
 affairs  programming  will  have  options  available  to  them. 
 Rather  than  forcing  commercial  broadcasters  to  provide 
 this  type  of  programming,  public  broadcasting,  which  has 
 accommodated  the  public  interest  programming  needs  of 
 America  in  the  analog  era  with  some  degree  of  success, 
 could  carry  most  of  this  "burden."  With  the  new 
 capabilities  of  the  digital  spectrum  the  value  of  public 
 broadcasting  could  be  enhanced  dramatically.  However,  the 


 ..  ..  l,.  l.  -...  I-.  --..-_  ------_,  l.  ll-_  ____ 
380
 intrinsic  value  of  the  digital  signal  will  be  of  no  benefit 
 if  public  broadcasters  do  not  have  adequate  financial 
 backing.  The  startup  costs  of  converting  to  digital 


 signals  and  providing  digital  programming  are  ten  to  twenty 
 percent  higher  than  the  costs  of  producing  analog 
 programming.  Although  public  broadcasting  already  receives 
 funding  from  the  federal  government  and  other  private 
 sponsors,  more  funding  will  be  needed  if  public 
 broadcasters  increase  the  number  of  programs  that  they 
 offer. 
 Congress  could  have  conducted  a  lucrative  funding 
 drive  for  public  television  when  it  was  deciding  how  to 
 distribute  the  digital  spectrum,  but  it  chose  instead  to 
 succumb  to  special  interest  groups  and  give  away  a  valuable 
 source  of  potential  revenue.  Although  I  do  not  propose 
 that  we  "take  back"  the  digital  spectrum  from  broadcasters, 
 there  are  several  mechanisms  that  could  be  used  to  increase 
 funding  for  public  broadcasting.  For  example,  public 
 broadcasting  could  be  funded  by  (1)  revenues  generated  from 
 the  auction  of  other  spectrum,  including  the  analog 
 spectrum  and  (2)  the  fees  generated  from  ancillary  and 
 supplementary  services  offered  by  digital  broadcasters. 


 Provide  Economic  Incentives  for  Broadcasters  to 
 Address  Local  Issues  in  the  Communities  they  Serve. 
381
 Local  programming  should  be  one  of  the  main 
 requirements  under  which  every  broadcaster  operates. 
 Although  the  notion  that  a  broadcaster  receives  a  license 
 to  act  as  a  trustee  of  the  public  interest  is  expressed  in 
 court  rulings  and  FCC  policy,  broadcasters  are  providing 
 very  little  programming  that  addresses  local  issues  in  the 
 communities  they  serve. 
 In  a  recent  study  conducted  by  the  Benton  Foundation, 
 in  consultation  with  the  Media  Access  Project,  researchers 
 found  that  in  the  five  television  markets  studied, 
 broadcasters  provided  13,250  hours  of  programming  but  only 
 46.5  hours  of  local  public  affairs-  l  Moreover,  genuine 
 discussion  of  local  issues  appears  to  comprise  an  even 
 smaller  proportion  programming.  A  recently  published 
 survey  conducted  by  eight  universities  found  that,  once 
 weather,  sports  and  advertising  were  accounted  for, 
 "government  and  politics"  comprised  only  15.3%  of  local 
 news  content.  2 
 In  light  of  these  two  studies,  two  questions  surface. 
 Do  people  really  want  to  know  what  is  going  on  in  their 


 '  BENTONFOLJNDATION&  THEMEDIAACCESS  PROJECT,  COMMLJNJCATIONSJNTHEPUBLJC  INTEREST: 
 WHATS  LOCAL  ABOCT  LOCAL  BROADCASTING?  (April  1998)  (visited  March  10,200O) 
 http::~~~  w~  v.  benton.  orgPolicvlTL.  whatslocal.  htn~  l.  (the  study  included  every  full  power  television  station 
 in  f>  ve  CS  markets:  Chicago,  Illinois;  Phoenix,  Arizona;  Nashville.  Tennessee;  Spokane,  Washington;  and 
 Bangor,  Maine). 


 5 


 -.-.I  I  __-  --  --,.- 
382
 community?  If  so,  would  they  rather  read  a  newspaper  or  go 
 online  or  watch  the  local  news.  Both  these  questions  are 
 difficult  to  answer  and  this  is  the  reason  why  broadcasters 
 should  not  be  forced  to  air  local  affairs  programming.  If 
 broadcasters  are  forced  to  air  programming  that  consumers 


 do  not  want,  broadcasters  will  not  be  able  to  compete  with 
 cable  companies  that  are  not  required  to  satisfy  public 
 interest  obligations.  However,  this  should  not  stop  the 
 FCC  and  other  government  agencies  from  encouraging 
 broadcasters  to  cover  local  issues  by  providing  them  with 
 economic  incentives.  For  example,  if  broadcasters  provide 
 at  least  25  hours  of  local  programming  per  week  on  one  of 
 their  stations,  then  the  revenues  generated  from 
 advertising  during  these  hours  could  be  taxed  at  a  more 
 favorable  rate.  In  addition,  the  amount  of  local 
 programming  could  also  have  a  corresponding  positive  or 
 negative  affect  on  the  FCC's  licensing  procedures. 


 The  FCC  Should  Increase  the  Disclosure  Obligations  of 
 Broadcasters 


 How  do  most  people  find  out  what  is  on  TV?  If  they 
 are  anything  like  myself,  they  turn  on  the  television  and 
 partake  in  what  is  commonly  referred  to  as  "channel 


 '  Id.  at  6. 
 6 


 -.  ---.-  ,  --....  _...    _,_- 
383
 surfing."  Sometimes  I  stumble  upon  some  quality 
 programming  or  programs  that  are  "in  the  public  interest," 
 but  most  of  the  time  I  give  up  and  find  something  else  to 
 do.  However,  I  really  do  believe  that  there  are  programs 
 worth  watching. 
 The  FCC  could  perform  a  great  service  to  this  country 
 if  they  required  broadcasters  to  coordinate  their  resources 
 to  produce  a  single  weekly  Internet  publication  that 
 contains  detailed  programming  information.  It  is  not 
 practical  for  someone  to  go  to  each  broadcaster's  web  site 
 to  see  what  they  will  be  airing  that  week.  Moreover,  the 
 advertisements  and  other  sources  of  propaganda  that  clutter 
 most  websites  and  other  print  media  obscure  the  information 
 the  people  should  have  easy  access  to. 
 The  solution:  (1)  create  a  site  that  has  a  clever 
 address;  such  as  www.  whatsontv.  com;  (2)  require  all 
 broadcasters  to  provide  information  about  their  programs; 
 such  as  time,  suggested  audience,  content  description,  and 
 whether  the  program  has  closed  captioning  or  other 
 disability  features;  (3)  limit  the  number,  size,  and 
 location  of  advertisements;  and  (4)  require  broadcasters  to 
 advertise  this  website  in  a  "reasonable"  manner. 


 Requiring  broadcasters  to  combine  all  of  their 
 broadcasting  information  and  publish  it  on  one  website  may 


 7 


 ----  I  I  -..  ___  l_  l_.___...   
 --.-_-..-..    -.---.--  .,  .,_. 


 ~----.- 
384

385
 decrease  the  revenues  generated  from  their  current,  highly 
 commercialized  sites.  This  problem  could  be  alleviated  by 
 allowing  broadcasters  to  provide  links  to  their  home  pages 
 so  that  people  who  want  more  information  about  their 
 favorite  shows  can,  with  the  click  of  a  button,  transport 
 themselves  back  to  destination  capitalism. 


 Conclusion 
 Increasing  the  public  interest  obligations  of 
 broadcasters  could  give  a  competitive  advantage  to  cable 
 companies  who  do  not  have  to  satisfy  this  requirement. 
 This  could  forestall  the  long  anticipated  competition  to 
 cable  and  other  multiple  channel  programming  that  digital 
 broadcasting  may  bring.  Consequently,  the  FCC  could  better 
 serve  this  country  if  they  focussed  more  resources  on 
 public  broadcasting  which  does  not  have  to  respond  to  the 
 market  force  of  ratings. 
 Although  the  FCC  should  focus  more  of  its  resources  on 
 public  broadcasting,  the  FCC  still  needs  to  ensure  that 
 broadcasters  cover  local  affairs  by  providing  them  with 
 economic  incentives  to  do  so.  If  the  FCC  simply  required 
 broadcasters  to  cover  local  affairs  this  could  also  give 
 cable  companies  an  advantage  if  consumers  are  not  concerned 
 about  local  affairs  or  would  rather  get  this  information 
386
 from  other  sources.  The  FCC  could  also  provide  a  great 
 service  to  this  country  if  they  required  broadcasters  to 
 create  one  website  that  contained  detailed  programming 
 information.  Thank  you  for  your  consideration. 
 Cordially, 
 _ 
 L 
 Stephen  E.  Verotsky 
387
 Before  the  Federal  Communications  Commission 
 Comments  of  Dationa  Osborn  m 
 Regarding  the  proposed  ~~~  Public  Interest  Obligations  of  Television 


 Broadcast  Licensees 


 Introduction  and  Background 
 In  deciding  whether  the  Commission  should  establish  more 
 specific  minimum  requirements  or  guidelines  regarding  television 
 broadcasters  public  interest  obligations,  the  Commission  must  first 
 decide  what  its  objectives  would  be  in  establishing  such  guidelines  and 
 whether  it  would  benefit  the  public  to  make  these  new  guidelines. 
 Current  public  interest  programming  include  educational  children 
 programs,  public  affairs  and  general  educational  programming.  If  the 
 commission  wants  to  see  these  types  of  programs  enhanced  and 
 improved,  and  if  the  commission  wants  the  programs  to  play  an 
 important  part  of  the  21St  century,  it  will  want  to  make  the  programs  part 
 of  the  new  opportunities  that  digital  television  is  bringing. 
 A.  A  need  to  move  from  deregulation  to  regulation 
 One  thing  is  certain,  the  1996  Telecom  Act  specifically  states  that  the 
 public  interest  standard  is  applicable  to  television  broadcasting  including 
 digital  TV.  1  However,  if  regulations  are  made,  they  should  be  regulated 
 not  deregulated.  This  has  not  always  been  the  case  in  the 


   Telecommunications  Act  of  1996,47  U.  S.  C.  6336(  d)(  1994). 
388
 past.  The  current  public  interest  regulations  are  somewhat  vague.  The 
 Commissions  guidelines  for  local  or  informational  programming  are 
 neither  effective  nor  objective  .  2 
 Dean  Burch  once  said  in  an  address  to  the  International  Radio  and 
 Television  Society  in  1993,  that  neither  the  Broadcasters  of  that  group 
 or  the  FCC  could  probably  state  what  the  specific  guidelines  and  renewal 
 policies  were.   
 B.  Clearly  Defined  Guidelines  will  be  Essential 
 Because  of  the  lightweight  handling  with  regards  to  standards  and 
 guidelines  in  the  past,  the  Commission  should  strive  to  establish  clearly 
 defined  guidelines  that  will  be  promulgated  properly.  This  will  assure 
 compliance  by  each  broadcaster  who  expects  to  get  their  license  renewed. 
 This  is  especially  important  for  when  the  FCC  is  confronted  with  possible 
 licensee  violations. 
 C.  Postcard  Renewal  Is  Outdated 
 One  thing  that  the  Commission  may  think  about  abolishing,  is  the 
 license  renewal  by  postcard.  This  requirement,  which  was  adopted  in  the 
 198Os,  has  also  contributed  to  the  deregulation  if  broadcasting. 
 Although  they  may  be  quick  and  efficient,  postcards  tend  to  undermine 
 the  whole  concept  of  making  the  public  interest  requirements  effective. 
 For  example,  with  a  post  card  there  is  no  room  to  show  how  or 


 *  Broadcast  renewal  License:  Hearing  Before  the  House  Subcomm.  on  Comm.,  93d  Cong.,  1  sess.,  ser.  93- 
 36,  pt.  2,  at  1120  (testimony  of  Chairman  Dean  Burch). 
389
 when  guidelines  were  complied  with.  And  although  broadcasters  are 
 required  to  keep  a  file  with  this  type  of  information,  no  one  from  the 
 Commission  conducts  routine  checks  to  make  sure  the  files  are  complete 
 or  that  they  even  exist. 
 Discussion 
 A.  Stricter  Regulations 
 The  Communications  Act  awards  short-  term  broadcasters  licenses 
 to  parties  that  volunteer  to  service  the  publics  interest.  The  Act  imposes 
 several  basic  public  service  requirements.  The  broadcasters  are  required 
 to  serve  the  local  needs  with  community  issue-  oriented  programming. 
 They  are  required  to  contribute  to  an  informed  electorate  through 
 informational  and  political  broadcast.  And,  the  broadcasters  are 
 required  to  serve  the  educational  and  informational  needs  of  children. 
 These  general  requirements  are  good,  but  they  should  be  more 
 detailed.  This  may  take  time  and  a  little  research.  When  meeting  the 
 needs  of  the  public,  the  FCC  wants  to  be  sure  that  the  public  is  receiving 
 the  benefit.  Therefore,  the  programming  should  be  tailored  or  scheduled 
 so  that  the  particular  audience,  whether  it  is  children  or  adults,  is 
 watching  the  TV  at  that  time.  Effectiveness  is  better  than  quantity. 
 What  do  I  mean  by  that  statement?  Well,  for  example,  a  one  hour 
 requirement  of  educational  programming  at  a  time  when  the  audience  is 
 sure  to  be  watching  is  better  than  a  five  hour  requirement  that  is  used 
 between  1  am  and  6  am. 
390
 Requiring  2  to  4  hours  of  public  interest  programming  for  each 
 audience  (local,  adult,  and  children)  per  day  at  a  time  when  the  audience 


 for  that  particular  program  is  watching,  seems  to  be  more  than  enough. 
 Anyone  who  watches  more  television  than  that  is  probably  not  making 
 good  use  of  his  or  her  life.  Plus,  we  shouldnt  leave  the  burden  on  the 
 broadcasters  to  meet  all  of  the  public  needs.  There  are  other  interactive 
 things  that  take  place  in  the  community  that  can  fulfill  those  needs. 
 Using  the  Childrens  Television  Act  of  1990  as  a  model,  the  FCC 
 could  require  broadcasters  to  serve  the  educational  and  informational 
 needs  of  children  and  adults  with  specifically  designed  programming. 
 Also  equally  important  are  the  types  of  programs,  which  the  broadcasters 
 consider  educational  and  informational.  For  example,  if  animated 
 programming  is  used,  would  shows  such  as  Pokemon  or  Catdog  be 
 considered  educational  or  would  the  program  resemble  shows  like 
 Barney  or  Arthur?  Even  with  adult  programming,  would  the  news  be 
 considered  informative?  Or  what  about  game  shows  like  How  to  be  a 
 Millionaire? 
 The  FCC  should  be  specific  in  what  types  of  programming  or 
 commercials  are  considered  and  which  types  of  programming  absolutely 
 would  not  pass. 
 B.  Compliance 
 This  takes  us  into  compliance.  If  the  Commission  creates  the 


 ..-  --.  ._  --  __  _.  _  .  ..._.  ..-  ~  ~.--  -.~- 
391
 type  of  guidelines  that  I  have  mentioned,  the  FCC  should  make  sure  that 
 the  licensees  comply  with  the  new  guidelines.  Since  most  of  the  rules 
 dealing  with  compliance  are  already  in  place,  the  Commission  just  needs 
 to  assure  that  the  broadcasters  abide  by  the  statue. 
 First,  instead  of  using  postcards,  the  FCC  could  receive 


 programming  information  to  help  it  assess  whether  the  public  service 
 efforts  of  particular  licensees  are  being  met.  The  broadcaster  could  be 
 asked  to  keep  semi-  annual  reports  in  their  files,  which  focus  in  their 
 public  service  record.  The  file  should  include  the  current  programming 
 used,  including  the  number  of  hours  and  which  audience  it  is  intended 
 to  serve.  Secondly,  the  file  should  also  have  plans  for  any  new 
 programming  and  changes  and  suggestions.  The  programming  should 
 include  educational,  cultural,  and  in-  depth  informational  programming.  3 
 The  FCC  should  conduct  random  inspections  where 
 representatives  would  go  to  the  broadcasting  company  and  evaluate  their 
 public  service  efforts.  If  that  process  becomes  too  costly,  the  Broadcast 
 Company  could  mail  in  annual  reports,  which  indicate  significant 
 treatment  of  community  issues,  along  with  illustrative  programs.  If 
 nothing  else,  the  records  could  be  kept  on  disk  or  CD-  Rom. 
 Other  things  the  FCC  may  want  to  start  doing  more  effectively  is 
 investigating  complaints  by  people  dealing  with  programming  or  some 


 3  Actually,  broadcasters  are  asked  to  keep  a  file  under  the  present  guidelines,  but  the  files  do  not  have  to  be 
 submitted  to  the  FCC. 
392
 content  feature.  Having  a  copy  of  the  file  or  access  to  the  file  allows  the 
 Commission  to  address  the  publics  issues  quicker  and  more  effectively. 
 Failure  to  comply  with  these  guidelines  should  result  in  non- 
 renewal  of  the  license.  The  license  renewal  should  be  conditional  upon 
 compliance. 
 C.  The  Unconstitutionality  Argument 
 Along  with  new  regulations  is  often  someone  or  some  group  who 
 will  oppose  the  regulation.  A  broadcaster  from  the  National  Association 
 of  Broadcasters  (NAB)  stated  that  clearly  defined  guidelines  for  public 
 service  would  violate  the  broadcasters  first  Amendment  right.  4  However, 
 I  feel  that  if  the  NAB  really  thought  that  the  public  interest  obligation 
 was  problematic,  they  would  have  opposed  it  much  sooner  than  now. 
 The  lack  of  strict  compliance  of  public  interest  guidelines  in  the 
 past  by  the  FCC  has  likely  created  a  false  sense  of  control  among  the 
 broadcasters.  Therefore,  when  the  Commission  try  to  enforce  the  new 
 clearly  stated  guidelines,  the  NAB  may  retaliate  by  non-  compliance  or  by 
 filing  first  amendment  violation  claims. 
 Neither  one  of  these  choices  will  be  a  good  idea  for  the  NAB  to 
 exercise.  First,  if  they  refuse  to  comply  with  the  guidelines,  they  will  lose 
 their  license  renewal  and  there  are  plenty  of  other  companies  wanting  to 
 get  one  of  these  licenses  at  the  small  price  of  complying  with  some 
 minimum  public  interest  obligations.  Second,  going  to  court  costs 


 4  Edward  Fritts,  Response  to  FCC  Chairman  Reed  Hundt,  Broadcasting  and  Cable,  April  7,  1967,  at  36. 


 ,_----  _  -  __.  _.  .  _*_,^  III_  .._  I  ..-.  __  ,.  -  _.-.  ^-..-  _--  -----.  - 
393
 money  and  it  take  time  and  then  there  is  no  guarantee  that  they  would 
 win  in  the  end.  It  sounds  good  to  say  that  your  first  amendment  rights 
 have  been  violated,  but  how  would  that  argument  stand  against  a 
 substantial  or  compelling  public  interest  need  which  serves  an 
 audience  much  greater  than  a  broadcast  company. 
 The  best  thing  to  do  so  that  no  one  feels  threatened  is  the  hold  a 
 session  between  the  FCC  and  the  broadcaster  which  give  the  broadcaster 
 a  chance  to  express  their  views  in  a  face  to  face  forum,  or  maybe  their 
 needs  can  be  met  by  sending  in  comments  to  the  Commission  on  the  new 
 proposed  guidelines. 
 One  other  thing  that  may  help  is  for  the  Commission  to  define 
 what  they  consider  public  interest  programming  as  mentioned  above.  If 
 the  Commission  comes  up  with  a  liberal  definition  the  NAB  may  be  more 
 susceptible  to  the  entire  process.  Other  things  would  include  the  choice 
 of  how  many  hours  are  required  and  the  freedom  to  choose  among  both 
 non-  commercial  programs  and  commercial. 
 Conclusion 
 Whatever  guidelines  the  Commission  decides  to  use,  it  should  also 
 keep  its  objective  in  mind.  It  shouldnt  be  that  difficult  to  consider  the 
 NAB  wants  while  meeting  the  publics  need.  The  NAB  should  feel  that 
 they  are  a  part  of  the  regulation  and  not  just  a  victim  of  it.  Taking  the 
 feelings  of  everyone  who  will  be  effected  by  this  new  guideline  into 
 consideration  assures  that  no  one  looses  in  the  end. 
394
 To:  Magalie  Roman  Salas 
 From:  Nicholas  J.  Peterson 


 cc:  Professor  Glenn  H.  Reynolds 


 Re:  Comments  on  Proposed  Public  Interest  Obligations  of  Television  Broadcast  Licensees 
 Regulations 


 In  response  to  the  Federal  Communications  Commissions  request  for  public  comments, 
 65  Fed.  Reg.  4211,  (January  26,  2000)  I  wish  to  express  my  views  as  a  law  student  at  the 
 University  of  Tennessee.  As  consumers  of  television  programming,  my  family,  myself  and  the 
 community  in  which  we  live  will  be  directly  affected  by  the  new  Digital  Television  (DTV)  era.  I 
 am  commenting  in  particular  on  the  issue  of  the  broadcasters  duty  to  provide  programming  in  the 
 publics  interest,  specifically  childrens  programming.  Further,  I  am  submitting  comments  on  the 
 issue  of  enhancing  political  discourse  through  the  use  of  DTV. 


 Introd.  uction 
 Television  is  the  most  influential  image  and  information  machine  of  American  society.   
 This  quote  is  most  probably  a  true  depiction  of  the  twentieth  century.  Some  may  argue  that 
 computers  and  the  Internet  have  been,  and  will  become  the  most  influential.  But  as  American 
 society  moves  further  into  the  digital  age  of  TV  and  its  convergence  with  user  interactive 
 capabilities,  the  argument  becomes  moot.  There  is  no  denying,  however,  that  television  shapes, 
 influences,  and  changes  vital  aspects  of  our  society.  Legislation  regulating  broadcasters  dating 
 back  to  the  nineteen-  twenties  and  thirties  still  remains  virtually  unchanged  today.  Unfortunately 
 the  current  regulations  in  place  fail  to  instruct  television  broadcasters  regarding  specific  public 
395
 interest  obligations  such  as  childrens  programming  and  political  campaign  discourse.  As  the 
 technology  surrounding  DTV  continues  to  evolve,  so  should  the  requirements  on  broadcasters  to 
 better  serve  the  publics  interest, 


 Childrens  ProPramming. 
 The  typical  American  child  consumes  nearly  five  and  one-  half  hours  of  media  outside 
 school  per  day;  half  of  that  figure  consists  of  television.  2  Currently,  broadcasting  networks 
 assert  that  they  are  complying  with  the  three  hour  per  week  rule  for  childrens  programming. 
 Special  interest  groups  like  the  People  for  Better  TV  argue  that  three  hours  per  week  is  just  not 
 enough.  But  before  the  issues  of  how,  when  and  how  much  childrens  programming  should  be 
 available  on  the  DTV  format,  I  need  to  make  a  general  assumption. 
 For  the  purposes  of  this  comment,  I  will  assume  that  given  an  option,  broadcasters  will 
 choose  to  multicast  rather  than  to  produce  one  HDTV  signal.  In  support  of  this  assumption,  the 
 ABC  TV  Network  President  Preston  Padden  stated  that  his  company  is  leaning  toward 
 multichannel  digital  broadcasts  rather  than  dedicating  its  stations  spectrum  to  a  single  HDTV 
 channel.  CBS  has  also  mentioned  that  it  is  eyeing  multiplexing  as  a  potential  revenue  source. 
 And  NBC  indicated  that  it  will  likely  broadcast  in  both  HDTV  and  multicast  at  different  times  of 
 the  day.  It  is  unlikely  that  the  networks  will  waste  precious  spectrum  with  HDTV  when  four  to 
 six  video  or  data  channels  can  be  utilized  in  the  same  space.  Based  on  the  likelihood  that 
 networks  will  multicast  programs  on  several  channels,  the  FCC  should  redefine  the  standards  for 
 which  the  networks  are  required  to  air  childrens  programs, 
 A  good  starting  point  is  to  ask  whether  broadcasters  of  DTV  should  be  required  to  abide 
 by  any  of  the  traditional  public  interest  requirements  regarding  childrens  programming  that 


 2mumc*  ons  .  .  Da  ly,  Vol.  19;  Issue  222;  November  18,  1999. 
 3John  M.  Hgg  ins,  Glenn  Dickson,  Broadcasting  &  Cable  7  HDTV  Falling  Out  of  Favor  Vol. 
 127,  No.  34,  August  18,  1997 


 __._  _...._._  _,  l--_  l-  --  .-._--  )_--  .l.  __---.  .  .  I 
396
 analog  broadcasters  must  follow.  There  is  no  legitimate  reason  why  broadcasters  of  DTV  should 
 not  be  required  to  maintain  at  least  the  minimum  requirements  that  have  been  in  place  for  nearly 
 70  years.  Broadcasters  have  received  what  equates  to  rent-  free  office  space  -  the  public 
 airwaves.  4  In  return  for  free  access  to  the  airwaves,  broadcasters  are  required  to  repay  the 
 American  citizens  by  providing  some  public  interest  programming  and  features  like  closed 


 captioning.  It  should  be  viewed  as  an  affirmative  duty  that  the  broadcasters  have  to  the  American 
 people  to  provide  at  least  the  minimum  standards  set  forth  in  the  Telecommunications  Act  of 
 1996,  even  on  the  new  digital  spectrum. 
 The  next  step  is  to  ask  whether  increased,  and  more  specific  standards  of  public  interest 
 programming  (specifically  childrens  and  educational  shows)  are  permissible  in  the  new  spectrum 
 of  DTV.  Of  course  the  broadcasters  answer  adamantly  in  the  negative.  Broadcasters  argue  that 
 the  First  Amendment  applies  to  them  just  as  it  does  to  the  press,  and  forbids  the  government  from 
 mandating  the  programming  aired  on  their  channels.  However,  because  broadcasters  are 
 licensed  to  use  a  scarce  public  property,  the  Supreme  Court  has  consistently  ruled  that  with 
 regard  to  the  public  airwaves  it  is  the  First  Amendment  rights  of  the  viewers,  not  the  broadcasters, 
 which  is  paramount.  5  Others  argue  that  if  the  broadcasters  want  to  be  treated  like  the  press,  they 
 should  pay  for  the  digital  spectrum  that  they  are  using.  Furthermore,  the  constitutionality  of  clear 
 and  concrete  public  interest  obligations  was  upheld  in  1997  in  Time  Warner  Entertainment  Co.  vc 
 m.  6  The  District  of  Columbia  District  Court  held  that  the  educational  and  informational 
 programming  requirements  were  constitutional  for  at  least  two  reasons.  First,  the  spectrum  in 
 which  broadcasters  air  their  programs  is  scarce  and  the  public  is  therefore  entitled  to  condition  its 
 use.  And  second,  a  specific  public  interest  requirement  may  be  justified  as  payment  in  kind  for  the 
 use  of  the  public  spectrum.  (see  footnote  6)  Therefore,  it  is  clearly  permissible,  not  to  mention 


 http://  www.  bettertv.  net/  takeback.  html 
 5http://  epn.  org/  prospect/  22/  22suns.  html 
 6Reed  Hunt,  oadcastinp.  Br  7  First  Things  First  Vol.  127,  No.  9,  March  3,  1997 
397
 desirable  that  the  FCC  place  new  and  more  specific  standards  on  broadcasters  of  DTV  regarding 
 childrens  programming. 


 One  problem  with  setting  firm  requirements  on  DTV  broadcasters  that  choose  to  multicast 
 is  whether  to  provide  for  childrens  programs  on  all  the  channels  (potentially  6  channels  or  more 
 per  network),  or  treat  the  network  as  one  single  unit  and  apply  programming  requirements  that 


 way.  While  it  might  seem  easiest  to  simply  apply  the  programming  requirements  equally  across 
 the  board,  one  must  take  into  account  the  fact  that  many  multicasted  channels  will  not  lend 
 themselves  to  video  formatted  programming.  Such  channels  include  those  that  the  broadcasters 
 will  use  for  datacasting  or  e-  mail.  In  fairness  to  the  broadcasters,  the  three  hour 
 educational/  children  programming  requirement  could  potentially  create  serious  problems  when 
 interjected  into  a  channel  which  is  dedicated  to  providing  e-  mail  service  to  customers.  However, 
 in  fairness  to  the  public,  the  broadcaster  should  still  be  held  accountable  to  provide  public  interest 
 programming  for  the  free  use  of  that  spectrum. 
 What  I  propose  can  be  classified  as  somewhat  of  a  compromise  between  the  two.  For  the 
 broadcaster  who  chooses  to  multicast,  the  educational  and  childrens  programs  could  be  aired  on 
 DTV  channels  which  are  more  conducive  to  video  broadcasts.  Each  of  the  multicasted  channels 
 should  be  counted  as  one  spectrum  unit,  which  is  required  to  broadcast  programs  in  the  publics 
 interest.  But  where  a  broadcaster  can  demonstrate  that  airing  childrens  programs  on  certain 
 channels  (such  as  data  channels)  is  a  substantial  burden,  the  broadcaster  may  have  the  option  to 
 air  the  programming  on  video  DTV  channels.  For  example,  if  CBS  chose  to  multicast  its  DTV 
 signal  and  broadcast  6  different  channels  (4  video  and  2  data),  every  channel  should  be 
 responsible  for  airing  at  least  the  minimum  3  weekly  hours  of  childrens  programming.  When 
 considering  the  2  data  channels,  the  required  6  weekly  hours  of  childrens  programming  could  be 
 distributed  among  the  remaining  4  video  channels,  provided  that  CBS  could  show  a  substantial 
 burden  in  airing  the  shows  on  the  data  channels.  The  outcome  is  fair  and  equitable  to  both  the 
 public  and  networks.  The  public  would  continue  to  receive  a  satisfactory  level  of  childrens 


 _. 
398
 programs,  while  the  broadcasters  would  still  air  the  same  hours  of  childrens  programming  per 
 week,  per  channel  as  the  analog  system. 


 Enhancing  Political  Discourse 
 In  this  portion  of  the  comment,  I  will  provide  suggestions  pertaining  to  the  use  of  DTV  to 
 enhance  the  political  discourse  and  the  democratic  election  process  in  America.  It  is  safe  to 
 assume  that  the  vast  majority  of  Americans  would  benefit  from  enhanced  coverage  and 
 accessibility  to  the  political  process  and  its  candidates.  Television  (including  DTV)  is,  and  will 
 continue  to  be  one  of  the  most  utilized  formats  in  which  the  American  population  receives  its 
 information  on  candidates.  DTV  provides  a  new  forum  with  greater  possibilities  in  which  to 
 engage  candidate  debate  and  audience  participation. 
 New  and  more  stringent  regulations  regarding  DTV  air  time  allotments  for  political 
 candidates  however  will  not  enhance  political  discourse.  While  more  air  time  for  candidates  and 
 easier  access  to  the  airwaves  would  likely  benefit  the  public,  there  is  little  guarantee  that  the 
 majority  of  DTV  consumers  will  even  watch  it.  Broadcasters  have  said  that  they  dont  hear  a  lot 
 of  clamoring  from  the  public  for  more  time  for  politicians.  7  It  does  seem  clear  though  that 
 reform  in  some  manner  regarding  the  requirements  on  broadcasters  is  needed  to  further  the 
 political  discourse  coverage  on  DTV  in  the  future. 
 The  debate  on  whether  to  require  broadcasters  to  provide  free  air  time  to  political 
 candidates  has  been  raging  for  several  years.  One  of  the  possibilities  for  a  solution  would  be  to 
 formally  require  broadcasters  who  are  granted  DTV  licenses  to  provide  a  minimum  amount  of 
 free  air  time  for  political  candidates.  The  Gore  Commission  has  recently  addressed  the  issues  in 
 this  debate.  In  fact,  the  Commission  has  said  that  at  the  very  least,  the  FCC  should  consider  the 


 7Kathy  Chen,  The  Wall  Street  Journal  )  Regulators  Weigh  How  to  Expand  Standards  for  Digital 
 Broadcasting  December  15,1999 
399
 committees  recommendation  that  broadcasters  voluntarily  give  candidates  five  minutes  of  free  air 
 time  in  the  last  month  of  an  election  campaign.*  And  in  early  1998,  in  President  Clintons  State 
 of  the  Union  Address,  he  called  for  requirements  on  TV  stations  to  provide  free  air  to  political 
 candidates.  9  These  suggestions  from  the  Commission  and  Clinton  have  come  under  heavy  attack 
 from  both  the  broadcasters  and  Congress. 
 First,  broadcasters  rightly  argue  that  additional  public  interest  requirements,  especially 
 those  that  require  free  air  time  for  candidates,  are  unnecessary  and  that  there  is  no  compelling 
 reason  for  saddling  the  industry  with  additional  obligations.  Requirements  in  the  current  Act 
 already  provide  for  lower  advertising  rates  for  political  candidates.  And  in  compliance  with  the 
 Act,  the  broadcasting  industry  currently  offers  political  candidates  advertising  at  the  lowest 
 rates.  (see  footnote  8)  Broadcasters,  on  their  own  accord  have  offered  free  air  time  to  political 
 candidates  in  the  past.  During  the  last  election  cycle,  broadcasters  gave  $148  million  in  free 
 time  to  political  candidates  for  advertising.  lo  However,  $15  million  of  that  free  air  time  was 
 turned  down  by  the  candidates.  The  dirty  little  secret  about  free  time  is  that  when  broadcasters 
 offer  it,  its  often  turned  down.  (see  footnote  10)  Furthermore,  broadcasters  assert  that 
 requirements  for  free  air  time  on  DTV  channels  are  not  needed  particularly  in  a  time  when 
 alternative  media  outlets  are  exploding,  like  the  Internet.  (see  footnote  10) 
 The  simple  fact  is  that  any  formal  minimum  requirement  for  free  air  time  is  unnecessary.  It 
 is  not  required  in  the  current  Act,  and  candidates  arent  even  taking  advantage  of  the  free  air  time 
 that  the  broadcasters  currently  offer  voluntarily.  Taking  such  an  affirmative  step  would  result  in 
 at  least  one  problem.  What  do  you  do  with  the  broadcaster  who  does  not  fill  the  minimum  air 
 time  with  political  discourse,  not  because  the  broadcaster  chose  not  to  do  so,  but  because 
 candidates  chose  not  to  take  advantage  of  the  free  time  to  advertise  on  TV?  Is  it  the 


 *Jim  Landers,  Knight-  Ridder  Tribune  Business  News,  Digital  Broadcasters  May  Have  to  Give 
 Candidates  Free  Time  December  16,  1999 
 9Kathy  Chen,  The  Wall  Street  Journal  ,  Regulators  Weigh  How  to  Expand  Standards  for  Digital 
 Broadcasting  December  15,1999 
 10Brooks  Boliek,  Hollywood  Reporter,  FCC  Begins  Public  Service  Work  December  16,1999 
400
 broadcasters  fault  for  not  airing  the  minimum  campaign  advertisements,  or  is  it  the  political 
 candidates  fault  for  not  taking  full  advantage  of  the  free  air  time?  The  requirement  will  very 
 likely  result  in  an  accountability  problem. 
 Next,  in  addition  to  the  unnecessary  argument,  broadcasters,  and  in  particular  the  NAB, 
 maintain  that  free  air  time  requirements  will  not  make  for  better  campaigns.  (see  footnote  10) 


 This  argument  stands  up  best  with  a  simple  analogy  that  functions  under  the  fundamental 
 economic  principle  of  supply  and  demand.  For  example,  we  all  know  that  exercise  is  good  for  us, 
 and  there  is  no  dispute  that  if  the  majority  of  the  population  would  exercise,  we  would  be  happier 
 and  healthier.  Now  assume,  based  on  this  fact  that  Congress  passes  a  statute  that  requires  every 
 exercise  equipment  manufacturer  in  America  to  produce  some  minimum  number  of  free  workout 
 videos  to  the  American  public.  Just  because  so  many  workout  videos  are  now  available  does  not 
 necessarily  mean  that  everyone,  or  even  a  majority  will  take  advantage  of  the  videos,  much  less 
 use  them.  The  regulation  will  result  in  many  unused  videos  that  heavily  outnumber  the  demand 
 for  such  videos.  The  same  goes  for  placing  minimum  requirements  for  free  air  time  for  political 
 candidates.  Just  because  the  rule  provides  free  time  for  the  talking  heads  on  the  DTV  screen  does 
 not  guarantee  that  anyone  will  watch  them,  or  that  the  candidates  will  make  use  of  the  free  air. 
 Another  of  the  possibilities,  and  the  one  I  endorse,  is  for  the  FCC  to  suggest  voluntary 
 DTV  industry  standards  for  free  air  time  coverage  for  political  candidates.  Generally, 
 Broadcasters  have  been  much  more  receptive  to  providing  voluntary  free  air  time  for  political 
 discourse.  In  response  to  the  proposition  of  statutory  mandates  on  air  time  for  political 
 campaigns,  Dennis  Wharton  of  the  NAB  said  that  the  opposition  comes  when  you  turn  to  federal 
 mandate.  l  l  Voluntary  standards  could  have  a  sweeping  effect  on  broadcasters,  especially  when 
 reminded  that  they  do  indeed  occupy  and  to  a  great  degree  control  a  scarce  commodity  with 


 1  Kathy  Chen,  The  Wall  Street  Journal  7  Regulators  Weigh  How  to  Expand  Standards  for  Digital 
 Broadcasting  December  15,1999 
401
 estimated  values  in  excess  of  $70  billion  per  license,  essentially  for  free.  I*  Further,  suggesting 
 voluntary  standards  would  result  in  an  equitable  middle  ground  and  most  networks  that 
 currently  offer  free  air  time  to  candidates  will  likely  continue  to  do  so.  In  addition  to  suggesting 
 standards  for  broadcasters  to  voluntarily  provide  free  air  time,  it  also  makes  good  sense  to 
 continue  the  regulations  under  the  current  Act  that  require  broadcasters  to  charge  candidates  a 


 reduced  rate  for  advertisements. 
 Once  again,  what  I  propose  here  can  be  classified  as  a  compromise  for  both  the  public  and 
 the  broadcasters.  DTV  broadcasters  should  maintain  the  current  public  interest  standards  that 
 apply  to  analog  stations,  such  as  reduced  advertising  rates  for  political  candidates.  In  addition, 
 the  FCC  should  suggest  voluntary  industry  standards  for  providing  free  time  for  political 
 discourse.  The  result  would  be  a  satisfied  public  that  receives  just  the  right  amount  of  politics  and 
 is  not  overdosed  with  campaign  advertisements.  In  addition,  the  public  would  have  access  to 
 the  voluntary  industry  standards  that  the  FCC  sets  by  which  to  measure  broadcasters  compliance. 
 Lastly,  broadcasters  bear  no  additional  unfair  financial  burden  as  they  would  if  mandates  required 
 them  to  involuntarily  give  away  valuable  air  time. 


 Conclusion 
 In  summary,  I  feel  the  public  still  deserves  to  be  repaid  for  allowing  broadcasters  to 
 maintain  free  air  waves.  However,  I  see  no  need  to  substantially  increase  those  requirements  on 
 broadcasters.  Through  some  compromise  and  minor  modifications,  analog  broadcasting 
 requirements  can  be  translated  equitably  to  DTV.  The  broadcasters  who  multicast  should  be 
 responsible  for  providing  the  three  hours  of  childrens  programming  per  week,  per  channel.  If  it 
 can  show  substantial  burden  to  air  the  childrens  shows  on  some  channels,  the  broadcaster  may  air 


 l*  Jube  Shiver  Jr.,  Los  Angeles  Times,  FCC  Weighing  Free  TV  Time  for  Candidates  December 
 16,  1999 


 _~.  _  _  .  _  ;;.  .  -----~--- 
402
 the  shows  on  other  channels  more  conducive  to  video  programming.  Furthermore,  the  FCC 
 should  only  suggest  industry  standards  regarding  voluntary  free  air  time  for  political  candidates. 
 Changes  in  the  rule,  structured  as  I  have  suggested,  will  result  in  fair  and  equal  treatment  for  both 
 the  public  and  broadcasters. 
403
 To:  The  Honorable  William  E.  Kennard,  Federal  Communications  Commission 
 From:  Nichole  D.  Bass 
 CC:  Professor  Glenn  Harlan  Reynolds 
 Date:  March  17,200O 
 Re:  Public  Interest  Obligations  for  Broadcasters  Changing  to  Digital  Technology 


 Dear  Chairman  Kennard, 
 In  response  to  your  Notice  of  Inquiry,  MM  Docket  No.  99-  360,  (December  15, 
 1999)  I  want  to  express  my  views  as  a  law  student  and  a  consumer  of  digitally  televised 
 media  through  DirecTV.  I  support  the  transference  of  the  current  analog  public  interest 
 obligations  of  broadcasters  to  digital  broadcasters,  and  I  support  further  obligations  that 
 may  be  necessary  due  to  new  technological  advances.  One  such  area  that  should  be 
 considered  because  of  advancements  in  digital  technology  is  that  of  invasion  of  privacy. 
 Introduction  and  Background 
 On  December  20,  1999,  the  Federal  Communications  Commission  published  an 
 advance  notice  of  proposed  rulemaking  regarding  potential  changes  in  broadcasters 
 public  interest  obligations  as  they  transition  to  digital  transmission  technology.  The 
 Commission  has  received  proposals  of  requirements  for  consideration,  namely  from  the 
 Presidents  Advisory  Committee  on  the  Public  Interest  Obligations  of  Digital  Television 
 Broadcasters  (  Advisory  Committee)  and  from  People  for  Better  TV.  The  Advisory 
 Committee  released  its  report  on  December  18,  1999,  in  which  they  proposed  that  many 
 of  the  same  analog  standards  should  apply  to  digital  television  in  a  voluntary  self- 
 regulation  scheme  supplemented  by  minimum  public  interest  obligations  to  be  regulated 
404
 by  the  FCC.    People  for  Better  TV  assert  that  the  Federal  Communications  Commission 
 must  adhere  to  the  mandate  of  the  United  States  Congress  and  clearly  establish  public 
 interest  obligations  for  digital  broadcasters,  citing  the  Telecommunications  Act  of  1996, 


 as  showing  that  public  interest  obligations  extend  to  digital  transmission  technology.  2 
 People  for  Better  TV  and  the  Advisory  Committee  fkrther  assert  that  this  additional 


 spectrum  given  to  digital  media  broadcasters  is  a  gift  that  could  have  been  auctioned  by 
 the  government  to  acquire  fimds  for  public  interest  needs.  3 
 The  Commission  was  interested  in  how  broadcasters  can  best  serve  the  public 
 interest  as  they  transition  to  digital  transmission  technology.  In  particular,  the 
 Commission  desired  comments  on  whether  and  how  existing  public  interest  obligations 
 should  translate  to  the  digital  medium,  and  whether  the  Commission  should  adopt  any 
 different  requirements  for  DTV  broadcasters  regarding  Disaster  Warnings.  I  am  pleased 
 to  respond. 
 Briefly,  the  current  public  interest  obligations  for  analog  broadcasting  should 
 transfer  to  digital  broadcasting.  Because  of  this  new  technology,  lkrther  requirements 
 become  necessary  to  ensure  protection  of  the  public  interest  in  areas  such  as  the  right  to 
 privacy.  The  implications  of  pinpointing  a  home  for  a  disaster  warning4  are  deserving  of 
 consideration  and  regulation. 


   The  Gore  Commission  Report  on  Public  Interest  Obligations  of  Digital  Broadcasters:  Sel$  Regulation  and  Increased  Flexibility,  by  James  M.  Burger,  Esq.  and  Todd  Gray,  Esq. 
 www.  di~  italtelevision.  com/  lawl99p.  shtml. 
 2  People  for  Better  TV-  Petition,  _www.  bettertv.  orp/  petition.  html.  3  The  Gore  Commission  Report  on  Public  Interest  Obligations  of  Digital  Broadcasters:  Self-  Regulation  and 


 Increased  Flexibility,  by  James  M.  Burger,  Esq.  and  Todd  Gray,  Esq.  www.  digitaltelevision.  comAaw199p.  shtm1,  and  People  for  Better  TV-  Petition, 
 www.  bettertv.  org/  petition.  html 


 2 
405
 Discussion 
 Under  the  regime  proposed  by  the  Advisory  Committee,  six  obligations  should  be 


 regulated  by  the  FCC:  (1.)  disclosure  of  public  interest  activities  by  broadcasters,  (2.) 
 voluntary  standards  of  conduct,  (3.)  minimum  public  interest  requirements,  (4.) 
 improving  education  through  digital  broadcasting,  (5.)  multiplexing  and  the  public 


 interest,  and  (6.)  new  approaches  to  public  interest  obligations  in  the  new  television 
 environment.  5  Some  members  of  the  Advisory  Committee  support  a  kind  of  pay-  or- 
 play  model  in  which  broadcastenare  given  a  choice  of  either  adhering  to  these  minimum 
 public  interest  standards  or  paying  a  fee  which  would  be  used  toward  public  interest 
 needs6 
 Current  Obligations  with  Flexibility  for  Future  Developments 
 The  current  requirements,  as  noted  in  the  six  aspects  above,  should  be 
 implemented  with  special  consideration  and  flexibility  for  htture  concerns.  These 
 obligations  that  current  licensees  now  have  should  transfer  to  the  digital  transmissions: 
 providing  coverage  of  issues  facing  their  communities  and  place  lists  of  programming 
 used  in  providing  significant  treatment  of  such  issues  in  their  public  inspection  files 
 (consideration  of  making  it  available  on  the  intemet  is  an  example  of  the  flexibility 
 needed  for  digital  media),  providing  political  broadcasting  with  equal  opportunities, 
 providing  childrens  educational  and  informational  programming  under  the  Childrens 
 Television  Act  of  1990,  restrictions  of  indecent  programs  during  certain  times, 
 providing  closed  captioning,  having  equal  employment  opportunities,  providing 


 4  Proposed  Rules,  Federal  Communications  Commission,  47  CFR  73,  MM  Docket  No.  99-  360,65  FR  4211,4213  (Janua1y26,2000). 
 5  Charles  Bentons  letter  to  FCC  Chairman  Kennard,  www.  benton.  or&  PIAC/  cbl03099.  html.    Id. 


 3 
406
 sponsorship  identification,  and  regulating  advertisements  during  childrens 
 programming.  7  More  access  and  accountability  to  the  public  can  only  enhance  and  focus 
 attention  on  what  the  public  really  wants  and  needs.  Measures  such  as  making 


 information  available  for  discussion  via  the  intemet  would  serve  much  the  same  purpose 
 as  these  comments  serve  in  rule-  making  procedures. 


 Pay-  or-  Play  Model 
 While  the  pay-  or-  play  model  seems  tidy  and  expeditious,  relieving  digital 
 broadcasters  of  this  duty  will  only  lessen  the  publics  awareness  of  diverse  ideas  and 
 discourse.  Without  regulation,  digital  broadcasters  are  allowed  to  control  the  flow  of 
 ideas  by  replacing  educational  programs  with  advertisements  and  commercial  programs.* 
 The  alternatives  do  not  serve  as  substitute  goods  because  the  stations  used  for 
 educational,  cultural,  and  informational  programs  would  be  reduced  to  a  pay-  per-  view 
 type  of  situation  or  would  be  perceived  as  inferior  or  cerebral  just  as  many  perceive  the 
 current  analog  public  access  stations  such  as  public  access  on  cable  or  PBS.  Television 
 is  the  primary  source  of  news  and  information  to  Americans..  .children  spend  far  more 
 time  watching  television  than  they  spend  with  any  other  type  of  media.*  With  a 
 responsibility  this  prodigious,  surely  the  networks  and  broadcast  executives  are  not 
 entrusted  to  dutifully  tend  the  minds  of  the  American  public.  These  same  media  leaders 
 make  daily  decisions  and  deals  that  sell  airtime  to  corporations  for  advertising  in  order  to 


   Proposed  Rules,  Federal  Communications  Commission,  47  CFR  73,  MM  Docket  No.  99-  360,65  FR  42  11,421l  (January  26,200O). 
   A  Consumer  Perspective  on  Economic,  Social,  and  Public  Policy  Issues  in  the  Transition  to  Digital  Television:  A  Report  of  the  Consumer  Fe&  ration  of  America  to  People  for  Better  TK  by  Mark  Cooper, 
 www.  bettertv.  ordconsumerperspective.  html.  9  Id. 
 lo  Proposed  Rules,  Federal  Communications  Commission,  47  CFR  73,  MM  Docket  No.  99-  360,65  FR  42  11,42  11  (January  26,200O). 


 4 
407
 keep  the  organization  in  the  black.  These  are  the  people  who  run  a  for-  profit  company.  I 
 am  sure  there  are  many  amiable,  responsible  people  in  these  leadership  roles,  but  as  with 
 any  hmnan,  it  is  more  difficult  to  see  your  own  interests  gored  rather  than  those  of  the 
 invisible,  faceless  publics. 
 Invasion  of  Privacy  Concerns 
 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.      Certainly  any  sane  person  would  desire  to  promote  the  health 
 and  general  welfare  of  the  public  by  alerting  possible  victims  that  a  hurricane,  flood,  or 
 blizzard  is  on  the  way  to  their  home  or  neighborhood.  However,  the  concern  should  lie 
 with  the  implications  of  this  pinpoint  warning. 
 A  program  can  also  be  non-  television  data.  Using  opportunistic 
 or  left  over  bandwidth,  broadcasters  can  transmit  data  over  the  air. 
 What  kind  of  data?  Web  content,  stock  reports,  electronic  coupons 
 that  a  computer  printer  could  print  out,  or  even  a  telephone  directory.,  . 
 data  can  be  television,  non-  television  data,  or  a  combination  of  both.  2 
 This  area  is  deserving  of  regulation  especially  in  light  of  the  recent  concerns  with 
 intemet  cookies  that  trade  information  about  intemet  users  every  day  without  their 
 knowledge  or  permission.  If  left  unchecked,  corporations  will  have  the  capability  to  buy, 
 sell,  and  trade  consumer  information  and  profiles  gained  from  this  new  digital 


   Id.  at  4213. 
408
 transmission  media  without  the  consumers  consent  or  knowledge.  13  The  transformation 
 of  advertising  is  driven  by  two  characteristics  of  the  new  advertising  medium-  the 
 immediacy  of  the  purchase  and  the  targeting  of  the  message.  Interactive  digital  networks 


 create  the  possibility  of  generating  the  information  necessary  to  identify  individual 
 preferences  and  tailor  the  message..  .  the  result  is  direct  mail  on  steroids  14  All  of  the 


 increased  costs  associated  with  the  transition  to  digital  television  (building  new  digital 
 facilities)  will  push  the  executives  to  sell  even  more  advertising;  however,  the  need  to  be 
 cost  efficient  will  spur  the  information  acquisition  that  is  available  through  the  digital 
 channels  in  order  to  target  individual  consumers  and  exploit  these  avenues.  15 
 Furthermore,  as  the  programming  and  advertising  become  individualized  and  targeted  for 
 selling,  the  average  consumer  is  disarmed  and  the  ability  to  distinguish  between  the 
 advertisement  Tom  the  entertainment  and  to  exercise  informed  choice  is 
 undermined.  ..  16 
 The  American  Civil  Liberties  Union  has  expressed  concern  for  privacy  as  well. 
 Your  right  to  privacy..  .  is  under  unprecedented  assault..  .  from  the  private  sector  interests 
 that  want  access  to  intimate  information  about  you..  .  I7  In  a  1994  study,  U.  S.  computers 


 I2  What  is  Digital  Television?  Consumer  Information  Page,  www.  di&  altelevision.  com/  what.  shtml.  The  speed  at  which  this  information  can  be  transferred  is  346  times  that  of  a  56k  modem.  Microsoft  Word 
 could  be  transmitted  within  five  seconds.  Id  I3  .  .  .the  single  digital  channel  provided  to  each  station  can  be  used..  .  for  downloading  of  data  for 
 computers  or  other  interactive  and  new  services.  It  is  at  the  broadcasters  discretion  ass  to  how  it  uses  it  digital  channel.  Digital  Television,  (November  2,  1999),  www.  fcc.  nov/  mmb/  vsd/  files/  descrip.  html. 
 4  A  Consumer  Perspective  on  Economic,  Social,  and  Public  Policy  Issues  in  the  Transition  to  Digital 
 Television:  A  Report  of  the  Consumer  Fe&  ration  of  America  to  People  for  Better  TV,  by  Mark  Cooper, 
 www.  bettertv.  orp/  consumerperspective.  html.  (The  result  is  (1)  an  ability  to  click  through  for  immediate  purchases,  (2)  in  response  to  digitally  inserted  advertising,  (3)  targeted  at  demographically  compatible 


 viewers  identified  by  detailed  information  on  viewing  patterns  and  past  purchases,  (4)  that  is  embedded  in 
 programming  suggested  by  an  intuitive  programming  guide  and/  or  restricted  by  affiliate  relationships.)  I5  Id 


 I6  Id. 
 I7  Defend  Your  Data:  What  They  Do  Know  Can  Hurt  You,  www.  aclu.  orp/  privacy/. 


 6 
409
 traded  information  of  every  man  woman,  and  child  an  average  of  five  times  every  day.  l8 
 If  the  FCC  does  not  actively  protect  the  American  public  at  this  early  stage  in  digital 
 television  development,  then  an  uncontrollable  situation  similar  to  the  intemet  is  likely  to 
 occur.  Children  are  especially  vulnerable  to  targeted  ads.  To  some  extent  this  already 
 happens  when  toys  are  advertised  during  childrens  programs,  but  when  the  media 


 becomes  so  fluid  and  targeted  that  the  children  can  no  longer  discern  the  Pokemon  show 
 from  the  Pokemon  advertisement,  then  we  are  moving  toward  a  predetermined 
 brainwashing  of  our  people.  I  submit  that  this  is  not  in  the  public  interest  to  allow 
 unfettered  access  to  private  information  through  new  digital  technologies,  but  that  it  is 
 only  in  the  economic  interest  of  the  executives  and  corporations  that  received  this  free 
 gill  from  our  own  government.  I  further  submit  that  the  FCC  would  be  wise  to  protect 
 the  Constitution  by  regulating  the  use  and  access  of  broadcasters  into  the  private  realm  of 
 the  home. 
 Conclusion 
 For  the  reasons  set  out  above,  I  support  proposed  regulation  transfers  from  the 
 analog  obligations  to  digital  obligations  for  the  public  interest.  I  propose  that  flexibility 
 is  needed  to  address  future  needs  as  they  may  arise.  My  concern  is  that  digital 
 broadcasters  will  commandeer  information  about  private  individuals  without  their 
 consent  and  use  that  information  for  economic  gain  through  specially  engineered 
 advertising  and  selling  of  that  information.  A  moratorium  on  information  would  be 


   Privacy  in  the  Information  Age:  Some  Thoughts  for  US,  Policymakers,  by  Fred  H.  Cate,  www.  law.  indiana.  edu/  webinit/  cate  e..  .m/  privacy  in  the  information  age.  html.  (Among  details  regularly 
 collected  are:  health,  credit,  marital,  educational,  and  employment  histories;  times  and  telephone  numbers  of  every  call  you  make  and  receive;  the  magazines  you  subscribe  to  and  the  books  you  borrow  form  the 
 library;  your  cash  withdrawals;  your  purchases  by  credit  card  or  check;  your  email  and  telephone  messages;  and  where  you  go  to  on  the  World  Wide  Web.  Cate  citing  James  Gleick,  Behind  Closed  Doors;  Big 
 Brother  is  Us,  IV.  1  Times,  Sep.  29,  1996,  at  130.) 


 7 
410
 drastic,  but  certainly  the  broadcasters  should  be  required  to  affirmatively  gain  individual 
 consent  in  an  open  and  obvious  manner  before  gaining  access  to  private  details.  Finally, 


 a  check  should  be  made  to  determine  whether  or  to  what  extent  this  already  exists,  and  in 
 doing  so,  remedy  the  problem  by  using  the  regulations  to  retroactively  apply,  ifpossible, 
 or  to  end  the  misappropriation.  l9  Thank  you  for  your  time  and  consideration. 


 Regards, 


 Nichole  D.  Bass 


 I9  I  am  a  subscriber  to  DirecTV,  and  I  have  always  wondered  why  the  representatives  tell  me  that  my  system  will  not  work  if  the  phone  cord  is  not  plugged  into  my  receiver  at  all  times.  I  know  that  it  works 
 fine  without  the  phone  cord  attached.  I  suspect  that  the  phone  cord  is  useless  in  receiving  a  signal  from  a  satellite,  but  that  it  is  actually  for  another  reason. 


 8 
411
 Richard  T.  Scrugham,  Jr.  -  3/  15/  00 
 To:  Federal  Communications  Commission 
 From:  Richard  T.  Scrugham,  Jr. 
 cc:  Professor  Glenn  H.  Reynolds  .  MAR  2  3  ZU@ 
 Date:  3/  l  5/  00  sccAAAK/#  f&  f 
 Re:  Comments  on  Proposed  Digital  Television  Regulations 


 Dear  Federal  Communications  Commission, 
 In  response  to  the  FCCs  request  for  public  comments,  65  Fed.  Reg.  4221, 
 (January  26,  2000),  Public  Interest  Obligations  of  Television  Broadcast  Licensee,  MM 
 Docket  No.  99-  360,  FCC  00-  390,  I  want  to  communicate  my  views  on  the  new  era  of 
 digital  television  and  the  responsibilities  of  the  broadcasting  industry.  I  am  a  graduate 
 student  who  hopes  to  one  day  have  a  family  and  children  of  my  own.  I  believe  that  the 
 federal  government  should  hold  the  entertainment  industry  accountable  for  its  public 
 interest  obligations. 
 Introduction 
 Congress  has  already  expressed  its  concern  for  the  content  and  quality  of 
 childrens  television  by  passing  the  Childrens  Television  Act  of  1990.  In  attempting  to 
 legislate  what  was  broadcast  into  the  living  rooms  of  American  families,  Congress  was 
 recognizing  what  most  parents  know  already  -  that  their  children  are  significantly 
 affected  by  the  medium  of  television.  A  1999  survey  by  the  Annenburg  Public  Policy 
 Center  found  that  children  in  the  U.  S.  spend  an  average  of  4.35  hours  per  day  in  front  of 
 a  screen  of  some  kind  (watching  television,  playing  video  games,  or  on  the  computer). 
 The  same  survey  also  found  that  more  1  O-  l  7  year  olds  recognized  the  Simpsons  (91%), 


 I__  I  -.  __,  -_  .  ._  .,_  .- 
412
 Richard  T.  Scrugham,  Jr.  -  3/  15/  00 
 Joe  Camel  (69%),  Dennis  Rodman  (69%)  and  the  Budweiser  frogs  and  lizards  (67%) 
 than  knew  the  name  of  the  Vice  President  of  the  United  States  (63%).   


 Recommendations 
 With  the  obvious  influence  that  television  has  on  our  nations  youth,  I  am  writing 
 in  favor  of  several  recommendations  that  should  be  incorporated  into  the  FCCs  new 
 regulations  regarding  the  public  interest  requirements  of  broadcasters  as  they  affect 
 children.  The  first  area  that  the  FCC  should  address  is  the  actual  content  of  the 
 programs  produced  by  the  entertainment  industry.  The  level  of  gratuitous  violence, 
 sexual  situations  and  innuendo  and  overall  moral  decay  in  many  of  the  television 
 programs  being  produced  today  is  frightening  and  a  matter  of  concern  to  any  parent. 
 Major  studies  confirm  that  television  programs  encourage  negative  values,  such  as 
 disrespect  for  ones  parents,  and  dangerous  practices,  such  as  early  sexual 
 promiscuity.*  The  culture  of  violence  that  America  finds  itself  in  today  has  not  been 
 spurred  on  by  the  National  Rifle  Association  or  the  proliferation  of  handguns,  but  by  the 
 de-  sensitizing  of  Americas  children  to  violence  through  television. 
 I  do  not  believe  that  the  FCC  should  or  could  eliminate  all  violence,  sex,  and 
 adult  situations  from  broadcast  television.  However,  your  agency  could  do  much  to  aid 
 the  parents  of  America  through  several  important  steps.  First,  I  would  advocate  an 
 improved  mandatory  ratings  system  that  all  broadcasters  must  follow  in  order  to 
 qualify  for  a  FCC  digital  television  license.  The  current  voluntary  structure  is  unhelpful 
 to  parents  and  unequally  enforced  across  the  industry.  Several  networks,  including 


   Media  in  the  Home  1999:  The  Forth  Annual  Survey  of  Parents  and  Children,  April  20  -  May  18,  1999, 
 Annenberg  Public  Policy  Center,  http://  www.  appcpenn.  org/  kidstv99/  survey5.  htm.  [Complete  Report] 
   Childrens  Television  Programming,  Federal  Communications  Commission  Fact  Sheet,  April  1995, 
 http://  www.  fcc.  gov/  Bureaus/  Mass_  Media/  Factsheets/  kidstv.  txt. 


 2 
413
 Richard  T.  Scrugham,  Jr.  -  3/  15/  00 
 NBC  and  BET,  have  publicly  refused  to  use  the  content  ratings  in  the  labeling  of  their 
 shows.  3 
 The  current  voluntary  system  of  ratings  (TV-  Y,  TV-  Y7,  TV-  G,  TV-  PG,  TV-  14,  TV- 


 MA)  is  inadequate  to  give  adults  a  true  idea  of  what  their  children  might  be  exposed  to 
 during  a  particular  program.  As  a  remedy,  I  would  strongly  propose  a  stricter  content 
 information  structure,  which  lists  not  only  a  general  rating,  but  also  specific  guidelines 
 about  the  nature  of  the  program.  I  support  the  recommendation  of  People  for  Better  TV, 
 in  which  it  argues  that  broadcasters  should  provide  the  public  much  more  information 
 from  a  variety  of  independent  sources,  about  the  nature  (such  as  violent  or  sexual 
 content)  of  the  programs  being  broadcast,  as  they  are  being  broadcast.  This  should 
 enable  parents  to  screen  out  programs  they  do  not  want  in  their  homes.  4  Instead  of 
 flashing  up  a  cryptic  rating  in  the  first  30  seconds  of  a  program,  broadcasters  should 
 display  specific  content  information,  such  as  V  for  violence,  S  for  sexual  content  or 
 L  for  foul  language,  during  the  show  itself.  In  this  way,  a  parent  that  missed  the 
 beginning  of  the  program  could  still  monitor  what  their  children  might  be  watching. 
 There  is  an  alternative  to  this  on  the  screen  during  the  show  method  of  viewing 
 the  content  information.  With  the  new  technology  opportunities  that  digital  television 
 promises,  I  believe  it  would  be  very  simple  to  create  a  system  in  which  a  parent  could, 
 with  the  push  of  a  button,  display  this  information  on  the  screen  itself  and  get  a  full 
 report  of  the  content  of  that  specific  program.  This  would  be  an  acceptable  option, 
 which  would  still  give  parents  a  way  to  obtain  quick,  reliable  information  about  what 
 exactly  their  children  were  viewing. 


 3  Annenberg  Survey,  supra,  p.  27. 
 4  People  for  Better  TV,  Recommendation:  A  Content-  Based  Ratings  System,  1999, 
 http:  Nwww.  bettertv.  org/  rec5.  htmI 


 3 
414
 Richard  T.  Scrugham,  Jr.  -  3/  15/  00 
 The  second  area  the  FCC  should  address  is  the  amount  and  quality  of  childrens 
 programming  that  is  actually  being  broadcast.  In  the  1990s  Congress  adopted  the 
 Three  Hour  Rule  in  which  broadcasters  were  required  to  show  a  minimum  amount  of 
 programs  geared  toward  children.  This  was  a  commendable  guideline,  however  the 
 industry  has  been  recalcitrant  even  in  this  modest  requirement,  as  the  following  quote 


 from  the  Benton  Foundation  suggests: 
 The  National  Association  of  Broadcasters  (NAB)  defines  childrens  educational  television  as  programming  originally  produced  and  broadcast 
 for  an  audience  of  children  16  years  of  age  and  younger  which  serves  their  cognitive/  intellectual  or  social/  emotional  needs.    As  examples  of 
 shows  that  fall  within  the  NAB  definition,  Dr.  Kunkel  points  to  Americas  Funniest  Home  Videos,    Biker  Mice  from  Mars,    Bugs  and  Friends,   
 Mighty  Morphin  Power  Rangers,    Woody  Woodpecker,    X-  Men,    and  Yogi  Bear.    5 


 More  guidance  should  be  given  to  broadcasters  about  the  type  of  programming  which 
 would  qualify  as  childrens  television  and  satisfy  any  minimum  requirement  which  the 
 government  would  impose.  Some  type  of  an  independent  council  could  be  assigned  the 
 task  of  reviewing  what  is  being  produced  by  the  entertainment  industry  and  whether  it 
 actually  passes  FCC  standards  for  educational  and  developmental  quality. 
 In  addition  to  the  quality  of  the  shows  being  broadcast,  the  industry  should  also 
 focus  on  when  the  shows  are  being  aired.  Very  little  childrens  programming  is  currently 
 shown  during  the  prime-  time  hours  of  between  7pm  and  IOpm.  During  this  time  the 
 highest  percentage  (between  25  and  45  percent  depending  on  age)  of  children  are  in 
 the  audience,  but  almost  the  lowest  percentage  (6  percent)  of  programs  designed 
 specifically  for  them  air.  6  It  is  understandable,  from  an  economic  perspective,  that 
 broadcasters  would  have  more  of  an  incentive  to  neglect  childrens  programming  in 


 5  Benton  Foundation,  Childrens  Television  Programming:  The  FCC  Gives  Teeth  to  the  Childrens 
 Television  Act  of  1990,  1996,  http://  www.  benton.  org/  Policy/  TV/  kidstv-  sum.  html. 
 6  Annenberg  Survey,  supra,  p.  28. 


 4 
415
 Richard  T.  Scrugham,  Jr.  -  3/  15/  00 
 favor  of  adult  shows,  particularly  during  the  prime  time  hours.  There  are  more  adults 
 watching  TV  and  they  represent  the  majority  of  the  consumer  buying  power.  These 
 adult  viewers  attract  the  advertisers,  which  in  turn  pay  the  broadcasting  industry. 
 However,  simply  recognizing  that  the  industry  has  an  economic  motivation  to 
 cater  to  an  adult  audience  does  not  justify  a  neglect  of  broadcasters  social 
 responsibility  to  the  large  numbers  of  children  watching  television  during  the  evening 
 hours.  With  the  advent  of  new  technologies,  especially  the  mulitcast  options  under 
 high-  definition  television,  or  the  multiplex  options  under  digital  television,  the 
 broadcasting  industry  will  have  more  choices.  I  believe  it  would  be  reasonable  to 
 require  broadcasters  to  include  at  least  one  channel  of  a  multicast  signal  that  just 
 showed  programming  appropriate  for  children. 
 In  reviewing  the  comments  of  the  Presidents  Advisory  Committee  on  the  Public 
 Interest  Obligations  of  Digital  Television  Broadcasters,  I  noticed  that  some  broadcasters 
 were  advocating  a  change  to  the  current  system  of  public  interest  requirements.  This 
 change  would  entail  the  adoption  of  a  pay  or  play  model  in  which  broadcasters  would 
 be  given  the  choice  of  maintaining  the  existing  regime  of  their  public  interest  obligations, 
 or  of  paying  a  share  of  their  revenues  to  bypass  those  obligations.    This  suggestion 
 reeks  of  corporate  irresponsibility  and  should  be  rejected  out  of  hand.  The  television 
 industry  should  not  be  allowed  to  escape  its  social  obligations  to  the  American  public. 
 This  is  especially  true  in  light  of  the  fact  that  the  entire  industry  received  a  tremendous 
 windfall  when  Congress  in  1996,  after  intense  lobbying  efforts  by  the  National 
 Associations  of  Broadcasters,  gave  away  the  use  of  additional  broadcast  spectrum  for 
 digital  television  at  no  extra  charge. 


 5 
416
 Richard  T.  Scrugham,  Jr.  -  3/  15/  00 
 By  obtaining  the  use  of  this  additional  spectrum  rent-  free,  the  broadcasting 
 industry  received  an  estimated  $40  billion  worth  of  corporate  welfare  from  the  United 
 States  government.  In  comparison,  from  1993-  1996,  the  FCC  auctioned  off  the  rights  to 
 the  use  of  non-  broadcast  spectrum  to  the  cellular  phone  industry.  The  proceeds  of 
 these  auctions  raised  over  $19  billion.  8  After  receiving  such  a  valuable  public  property 
 right,  the  broadcasting  industry,  represented  by  the  NAB,  has  no  right  to  complain  about 
 the  minimal  public  interest  requirements  that  are  currently  or  might  be  imposed  upon  it 
 by  the  FCC  or  another  federal  agency.  The  American  people  appear  to  solidly  support 
 these  requirements.  In  a  December  1998  national  survey,  the  firm  of  Lake,  Snell,  Perry 
 81  Associates  asked  over  1150  adults  the  following  question:  Do  you  favor  or  oppose 
 requiring  broadcasters  to  meet  certain  public  obligations  like  more  childrens  educational 
 programming  and  local  programming  in  return  for  free  access  to  the  new  public 
 airwaves  to  provide  digital  television  ?  Over  80%  of  the  respondents  were  in  favor  of 
 requiring  broadcasters  to  meet  these  obligations.   
 In  addition  to  more  and  better  programming  for  children,  I  believe  that  the 
 television  industry  should  not  grossly  exploit  the  susceptibility  of  young  children  to 
 commercial  advertising.  This  is  counterproductive  to  the  goal  of  developing  our  nations 
 youth  mentally  and  emotionally.  I  support  the  ideas  of  People  for  Better  TV  when  it 


 7  Presidents  Advisory  Committee  on  Public  Interest  Obligations  of  Digital  Television  Broadcasters, 
 Recommendation  10:  New  Approaches  to  Public  Interest  Obligations  in  the  New  Television 
 Environment,  http://  www.  benton.  org/  PIAC/  reclO.  htm. 
 *  Center  for  Media  Education,  Broadcasters  Oft-  Ignored  Public  Interest  Obligations, 
 http://  www.  cme.  org/  broad.  html 
   Lake,  Snell,  Perry  &  Associates,  Dec.  1998,  Education  &  Digital  Television:  Seizing  the  Opportunity  to 
 Realize  the  Mediums  Potential  -  A  National  Survey  conducted  for  the  Benton  Foundation, 
 http://  www.  benton.  orgmelevision/  edtv.  html. 


 6 


 ,..  _  ---_..  ,_..  ..__  ----.---I  .--  -I  -~ 
417
 Richard  T.  Scrugham,  Jr.  -  3/  15/  00 
 recommends  that  digital  broadcasters  be  limited  to  no  more  than  four  commercials,  no 
 more  than  sixty  seconds  long,  per  hour  during  childrens  programs.  lo 
 Conclusion 


 In  the  Telecommunications  Act  of  1996,  Congress  wrote,  Nothing  in  this  [Act] 
 shall  be  construed  as  relieving  a  television  broadcasting  station  from  its  obligation  to 


 serve  the  public  interest,  convenience  and  necessity.    In  forming  new  regulations  for 
 the  era  of  digital  television,  the  FCC  should  take  this  charge  from  Congress  seriously 
 and  should  hold  the  broadcasting  industry  accountable  to  its  public  interest  obligations. 
 I  believe  the  changes  I  have  advocated,  a)  additional  content  description  of  all  television 
 programming,  b)  better  quality  childrens  shows  at  more  convenient  hours  of  the  day 
 and  c)  a  limitation  on  commercial  advertising  during  childrens  television  programs, 
 would  be  effective  ways  to  enforce  these  obligations.  The  FCC  should  remember  that 
 its  customers  are  not  the  members  of  the  National  Association  of  Broadcasters  but  the 
 American  people  who  fund  its  budget  and  whose  representatives  authorize  its  continued 
 existence.  The  Supreme  Court  expressed  this  succinctly  in  a  1969  decision:  It  is  the 
 right  of  the  viewers  and  listeners,  not  the  right  of  the  broadcasters,  which  is 
 paramount.  * 
 Thank  you  for  your  consideration. 


 Sincerely, 


 Richard  T.  Scrugham,  Jr.  Knoxville,  Tennessee 
 lo  People  for  Better  TV,  Recommendation:  Limits  on  Commercials  During  Childrens  Programs,  1999,  http://  www.  bettertv.  org/  rec2.  html. 
   47  U.  S.  C.  5  251,  et.  seq.  (1996). 
 l2  Red  Lion  Broadcasting  Co.  v.  FCC,  395  U.  S.  367,  390  (1969). 


 7 
418
 March  17,  2000 
 Proposed  Rules  Comment 
 Brian  Molde  m  m&  f 


 William  E.  Kennard 
 Chairman 
 Federal  Communications  Commission 
 445  12th  Street  SW  Room  8B-  201H 


 Washington,  D.  C.  20554 
 Re:  MM  Docket  No.  99-  360 
 My  comments  are  directed  towards  the  notice  of  inquiry 
 and  notice  of  proposed  rulemaking  concerning  the  public 
 interest  obligations  of  television  broadcasters  as  the 
 switch  is  made  from  analog  to  digital  television.  Iama 
 third  year  law  student  at  the  University  of  Tennessee 
 College  of  Law,  and  I  am  making  these  comments  as  part  of 
 the  Administrative  Law  course  that  I  am  currently  taking. 
 Because  I  believe  that  the  advent  of  digital  television  is 
 a  unique  chance  for  a  re-  working  of  the  FCC's  regulation  of 
 broadcasters  and  because  I  believe  that  the  television 
 industry  should  be  subject  to  more  stringent  control,  these 
 comments  argue  in  favor  of  more  regulation.  Specifically, 
 these  comments  will  address  the  need  for  diverse  interests 
 in  the  digital  television  market  and  for  more  regulation  to 
 open  the  digital  television  media  to  more  political 
 discourse. 


 1 
 I.-.-_-  .  .  -...  II  ..-  -  --.  -- 
419
 The  FCC's  goal  of  serving  the  public  interest,  or 
 prompting  the  broadcasters  to  serve  this  goal,  can  only  be 
 achieved  by  presenting  a  wide  variety  of  television  formats 
 and  programs  on  the  public  airwaves.  This  is  true  simply 
 because  the  public  interest  is  such  an  amorphous  concept, 
 with  few  clear  markers  outlining  what  is  the  public 
 interest  and  what  is  not.  For  that  reason,  and  to  add  to 
 the  type  and  variety  of  television,  the  first  need  is  to 
 expand  the  ownership  base  of  television  stations  so  that 
 broadcasters  are  a  better  reflection  of  the  public,  and 
 thereby  the  public  interest. 
 A.  THE  NEED  FOR  DIVERSE  DIGITAL  TELEVISION  OWNERSHIP 
 Television  is  without  doubt  the  most  important  source 
 of  information  for  the  majority  of  Americans.  It  is  our 
 source  of  news,  political  debate,  and  entertainment. 
 According  to  People  for  Better  TV  and  the  Roper  News 
 Service,  "  93  percent  of  Americans  watch  a  network 
 television  program  in  the  course  of  a  week,  and  69  percent 
 of  Americans  say  TV  is  the  most  trusted  source  of 
 information."  l  Americans  are  dependent  upon  accurate 
 information  from  television  because  it  is  such  an  important 
 source  of  news. 


 'See  http://  www.  roper.  com/  news/  content/  newslO.  htm 
 2 
420
 The  Communications  Act  of  1996  granted  to  all  existing 
 broadcasters  an  additional  mu32  of  spectrum  to  begin 


 digital  programming.  It  did  not  provide  any  additional 
 spectrum  for  people  who  were  not  owners  of  operating 
 television  stations.  In  fact,  although  the  FCC  claims  that 
 digital  television  will  use  less  of  the  spectrum  of  radio 
 waves  than  analog  television  currently  does,  the  agency  has 
 not  stated  that  the  surplus  spectrum  will  be  available  for 
 new  operators  of  digital  stations.  2  This  is  contrary  to  the 
 public  interest  goals  of  the  Commission.  Only  by 
 encouraging  station  ownership  by  smaller  operators  will  the 
 emphasis  in  programming  be  adjusted  to  the  community  level. 
 Large  communication  corporations3  which  do  not  cater  to  the 
 individual  needs  of  communities  dominate  the  current 
 system.  Therefore,  much  of  the  public  interest  programming 
 that  takes  place  on  television  is  not  directly  related  to 
 the  public  served  by  the  television  station  in  their 
 community.  Moreover,  broadcasters  are  no  longer  required 
 to  determine  community  needs,  adhere  to  a  Fairness 
 Doctrine,  or  any  code  of  conduct.  4  The  relaxation  in 
 control  of  television  broadcasters  has  developed  a  system 


 2  See  http://  www.  fcc.  gov/  mmb/  pr#  dtv/ 
 3  See  Letter  to  Chairman  Kennard  from  Lowell  W.  Paxson,  Chairman,  Paxson 
 Communications  Corporation,  dated  February  11,200O. 
 4  See  http://  www.  bettertv.  org/  background.  html 


 3 
421
 in  which  television  broadcasters  are  no  longer  required  to 
 serve  the  public  interest  as  a  primary  goal  of  television 
 broadcasting.  Part  of  this  decline  may  have  to  do  with  the 
 fact  that  the  number  of  stations  that  one  entity  may 
 control  is  significantly  more  than  it  was  when  the 
 Communications  Act  of  1934  was  passed. 
 As  a  result,  the  public  interest  has  suffered. 
 Television  broadcasters  are  less  concerned  with  what  the 
 public  needs  and  are  rather  determined  to  dictate  to  the 
 public  what  it  will  see.  Advertising  revenue  has  become 
 the  driving  force  behind  the  television  market,  and 
 television  programs  have  become  increasingly  severe  in 
 order  to  attract  attention  and  viewers.  One  need  only  look 
 at  the  prices  charged  during  the  Super  Bowl  to  understand 
 what  the  actual  forces  are  in  the  television  market. 
 Re-  enforcing  the  goal  of  serving  the  public  interest 
 while  expanding  the  base  of  ownership  of  digital  television 
 stations  would  have  numerous  benefits.  More  competition 
 among  owners  for  markets  would  drive  the  owners  to 
 concentrate  on  distinct  markets  in  order  to  capture  their 
 viewers.  Television  stations  with  the  technology  of 
 digital  television  would  be  able  to  present  programs  in 
 languages  other  than  English  and  would  also  be  able  to 
 broadcast  more  and  better  close-  captioned  programs.  Local 


 4 
 ,.  -    __  II.____  I_..,  .,..  ._----*..  l..  ll~.  _l_--  ,.-. 
 -~..-__  I_- 
422
 news  programs  would  also  cater  to  these  distinct  markets  by 
 focusing  on  the  issues  central  to  those  communities.  The 
 increased  competition  among  television  stations  would  also 
 spur  the  operators  to  think  of  new  and  innovative  ways  to 
 use  the  digital  television  format  to  reach  their  viewers. 
 Furthermore,  because  the  digital  television  market  will  use 
 less  of  the  airwaves  than  analog  currently  does,  adding  new 
 operators  can  be  accomplished  with  the  same  amount  or  less 
 of  the  spectrum  currently  used. 
 At  the  same  time,  the  expansion  of  ownership  must  be 
 accompanied  by  real  regulation  of  the  market  to  ensure  that 
 the  existing  large  corporations  cannot  drive  out  smaller 
 competitors.  The  regulations  concerning  percentage  of 
 viewers  and  number  of  stations  owned  must  be  strengthened 
 and  new  regulations  governing  and  enforcing  the  public 
 interest  goal  of  television  must  be  created. 
 The  new  regulations  of  the  public  interest  burden 
 should  focus  on  the  new  technologies  available  to  digital 
 television  station  operators.  Using  these  new  technologies 
 to  serve  the  public  interest  must  be  the  goal  of  the  FCC 
 regulations  in  order  to  both  increase  public  interest 
 television  and  promote  the  growth  of  digital  television. 
 For  instance,  People  for  Better  TV  propose  setting  aside  7 
 hours  per  week  for  educational  programs  that  use  the 


 5 
423
 digital  television  format  for  educational  programs  directed 
 at  children  of  all  ages.  5  Regulations  could  also  institute 
 a  meaningful  rating  system  based  on  content,  oversight  of 
 commercials  broadcast  at  children,  and  rate  controls  for 
 the  pay-  per-  view  events  digital  television  operators  choose 
 to  offer. 
 Digital  television  is  an  emerging  technology.  As 
 such,  it  is  difficult  to  perceive  what  uses  will  be  made  of 
 this  product  in  the  future.  Only  by  structuring 
 regulations  to  position  the  Federal  Communications 
 Commission  in  a  flexible  stance  can  the  goal  of  public 
 service  be  continued  and  strengthened  in  this  new  arena. 
 B.  REGULATIONS  AIMED  TOWARDS  OPEN  POLITICAL  DISCOURSE 
 As  stated  above,  television  has  become  the  major 
 source  of  news  for  most  Americans.  This  is  even  truer  of 
 political  news  and  issues.  Broadcasters  using  the  free 
 airwaves  provided  by  the  people  of  the  United  States 
 therefore  have  a  burden  to  provide  access  and  information 
 to  candidates  and  voters. 
 The  public  interest  in  equal  access  to  political 
 discourse  is  the  foundation  of  our  democracy.  Restricting 
 access  through  the  publicly  owned  airwaves  cannot  be  handed 
 to  the  few  operators  of  television  stations.  Likewise, 


 5  See  Letter  to  William  Kennard  from  People  for  Better  TV  dated  Nov.  16,  1999. 
 6 
424
 neither  the  Constitution  nor  the  Communications  Act  would 
 permit  the  government  to  dictate  what  information  should  be 
 broadcast.  Striking  the  balance  between  these  two  ideas 


 has  already  prompted  debate  over  campaign  reform  and 
 financing.  To  an  extent,  television  operators  are 
 compelled  to  cover  major  political  battles  because  they  are 
 viewed  as  news  in  which  the  public  is  interested.  This  is 
 primarily  true  only  in  the  national  elections.  Coverage  of 
 Presidential  races  and  national  party  conventions  already 
 receives  wide  coverage  from  the  major  networks.  However, 
 as  the  notice  of  proposed  rulemaking  points  out,  coverage 
 of  local  elections  may  be  on  the  decline.  6  The  market  is 
 not  sufficient  by  itself  to  compel  serious  coverage  of 
 these  elections  because  they  are  not  viewed  as  significant 
 news  events.  The  lack  of  coverage  itself  may  be  a 
 contributor  to  the  lack  of  interest  in  these  elections. 
 This  downward  spiral  of  no  interest  and  therefore  no 
 coverage  and  therefore  no  interest  must  be  intercepted 
 through  regulations  designed  to  promote  television 
 coverage. 
 A  majority  of  the  Advisory  Committee  believed  that 
 their  report  did  not  go  far  enough  in  providing  access  to 


 6  See  Notice  of  Proposed  Rulemaking,  65  F.  R.  4211,4216. 


 .-...  _-_-  ---..-_  _  I.-  _- 
425
 television  for  local  elections.  7  I  agree  with  that  view, 
 and  propose  that  coverage  of  local  elections  be  mandated  by 
 the  FCC.  Furthermore,  I  believe  that  leaving  the  choice  of 
 elections  solely  in  the  hands  of  the  broadcasters  will  do 
 little  to  enhance  the  coverage  of  elections. 
 To  this  point,  much  of  the  focus  on  regulations 
 requiring  broadcasters  to  cover  local  elections  has  focused 
 on  airtime  requirements.  For  example,  the  Advisory 
 Committee  proposes  five  minutes  of  airtime  between  5:  00 
 p.  m.  and  11:  35  p.  m.  8  Requiring  airtime  only  does  half  the 


 job,  however.  The  FCC  should  not  allow  the  operators  sole 
 discretion  concerning  which  elections  to  cover.  In  order 
 to  provide  diverse  coverage,  the  FCC  should  require 
 coverage  of  elections  either  as  a  percentage  of  total 
 elections  or  as  a  number  of  elections.  Covering  30%  of  the 
 elections  in  any  given  year  for  the  electorate  which  the 
 station  covers  would  provide  more  diversity  of  coverage  and 
 would  also  promote  interest  in  those  elections  by 
 highlighting  the  candidates  and  issues.  If,  in  larger 
 metropolitan  areas,  the  30%  figure  is  too  large,  a  station 
 could  be  allowed  to  cover  a  certain  number  of  elections 
 with  the  goal  of  canvassing  the  entire  area.  By  enforcing 


 'SeeNoticeofProposedRulemaking,  65  F.  R.  4211,4216. 
 *SeeNotice  ofProposedRulemaking,  65  F.  R.  4211,4216. 


 8 


 -  .  .,  .  .  ..-.-..--  I_-.  ~~  --,-- 
426
 airtime  and  diversity,  the  FCC  could  enhance  the  public 
 knowledge  and  interest  in  these  local  elections. 
 Television  has  reached  the  public  of  our  country  like 


 no  medium  before  it.  With  the  advent  of  digital  television 
 and  its  new  capabilities,  the  public  interest  must  again  be 
 guarded  to  ensure  that  television  fulfills  its  goal  of 
 furthering  both  free  expression  and  free  access  to  all  who 
 desire  to  make  their  views  heard.  We  can  learn  from  the 
 past  use  of  television  to  encourage  the  growth  and  use  of 
 the  new  television  in  a  manner  that  is  informative  and 
 educational.  Preserving  the  public  interest  in  the  medium 
 is  paramount.  Opening  the  market  to  new  voices  and 
 requiring  all  broadcasters  to  air  a  variety  of  opinions  is 
 in  line  with  the  goals  of  the  Federal  Communications 
 Commission's  duty  to  serve  the  public  interest, 
 convenience,  and  necessity."  9 


   See  Notice  of  Proposed  Rulemaking,  65  F.  R.  42  11. 
 9 


 .---  I  _  ._  I,,  I  _  .._-.  ._.  .,.  _-.--.-- 
427
 Before  the 
 Federal  Communications  Commission  Washington,  D.  C.  20554 


 In  the  Matter  of 
 Proposed  Rules 
 Federal  Communications  Commission 
 47  CFR  Part  73 
 [MM  Docket  No.  99-  360;  FCC  99-  3901 
 Public  Interest  Obligations  of  Television  Broadcast  Licensees 


 Comments  of  Vance  W.  Dennis 
 Vance  W.  Dennis 
 C/  O  University  of  Tennessee  College  of  Law 
 1505  Cumberiand  Avenue 
 Knoxville,  Tennessee  37996 
 vwdennis@  utk.  edu 


 .-.._..~.  .  .  ,-._____  ,_  ^_  __--  ..  __.    --.--  .._-.  - 
428
 I.  Introduction 
 I  am  a  student  at  the  University  of  Tennessee  College  of  Law.  I  am  submitting  these 
 comments  in  conjunction  with  a  course  in  Administrative  Law.  These  comments  will 
 focus  on  section  II-  B-  3  of  this  Notice  of  Inquiry.  More  specifically,  these  comments  will 


 concentrate  on  the  need  for  more  specific  minimum  requirements  and  guidelines 
 regarding  television  broadcasters  public  interest  requirements,  as  well  as 
 recommendations  regarding  ways  that  broadcasters  should  implement  these  public 
 interest  requirements.  Also,  these  comments  will  address  the  need  for  governmental 
 requirements,  as  opposed  to  recommended  voluntary  measures,  to  achieve  these  goals. 
 Furthermore,  these  comments  will  address  the  severe  lack  of  local  public  affairs 
 programming  that  broadcasters  are  currently  providing. 


 The  Commission  should: 
 l  Establish  clear  minimum  public  interest  requirements  that  television  broadcasters 
 must  meet; 


 a  Require  television  broadcasters  to  devote  one  of  the  many  SDTV  stations  they 
 will  be  able  to  broadcast  strictly  to  non-  commercial  public  interest  programming,  and; 


 0  Develop  appropriate  sanctions  for  television  broadcasters  who  do  not  meet  the 
 minimum  public  interest  requirements  instead  of  relying  on  voluntary  actions  by  broadcasters. 
429
 3 
 II.  The  Commission  Should  Establish  Clear  Minimum  Public 
 Interest  Requirements 


 Television  broadcasters  have  been  required  to  serve  the  public  interest  since  the  first  half 
 of  this  century.  However,  the  public  interest  standard  has  been  subject  to  a  great  deal 
 of  modification  over  the  years.  The  last  two  decades  have  seen  a  major  shift  in  the 
 regulatory  practices  of  the  government  over  television  broadcasters.    Though  this 
 deregulation  has  resulted  in  a  wider  variety  of  programming,  this  shift  to  a  marketplace 
 approach  has  not  resulted  in  an  increase  in  quality,  non-  commercial  programming.  If 
 Congress  and  the  FCC  proceed  into  the  era  of  digital  programming  with  the  same  attitude 
 concerning  public  interest  regulations,  there  will  likely  be  a  dramatic  decrease  in  non- 
 commercial  public  interest  programming  in  relation  to  the  total  amount  of  programming 
 available  to  the  public.  The  FCC  should  act  now  to  ensure  that  television  broadcasters 
 increase,  or  at  the  very  least  maintain  the  amount  of  public  interest  programming  they  air 
 in  relation  to  other  forms  of  programming. 


 Television  broadcasting  is  a  business,  and  must  remain  profitable  ifit  is  to  continue. 
 Therefore,  commercial  progr  amming  and  advertising  must  occupy  a  large  portion  of  the 
 available  broadcasting  time  in  order  for  the  business  to  operate.  However,  the  change  to 
 digital  progr  amming  will  allow  each  broadcaster  to  multiply  their  available  programming 
 time  several  times  over.  The  increased  costs  associated  with  the  change  to  digital 
 television  will  require  broadcasters  to  increase  their  revenue,  and  will  justify  the  use  of  a 
 large  portion  of  the  additional  broadcasting  time  for  commercial  purposes.  Nevertheless, 


   .  n~~:  n-.  ntia.  doc.  no~,/~  ubintad\.  colll/  no~  lllt~~  ubint.  htm  (Advisory  Committee  report,  section  III) 
 -~  I    .  ^_._.,..  -._,..  -  ._.-...  ___-  ^.---  ~.._ 
430
 4 
 the  broadcaster  is  using  an  extremely  valuable  public  resource  that  no  one  else  may  use. 
 Broadcasters  must  pay  for  the  use  of  public  airwaves  by  devoting  a  significant  portion  of 


 their  progr  amming  to  satisfying  the  needs  of  their  community. 


 Television  broadcasters  have  been  especially  lacking  in  their  coverage  of  local  public 
 affairs.  The  courts  have  interpreted  the  public  interest  requirements  of  the 
 Communications  Act  of  1934  to  encompass  community  needs  for  programs  of  local 
 interest  and  importance  and  for  organs  of  local  self-  expression.  2  However,  most 
 broadcasters  currently  provide  very  little  local  public  affairs  progmmming.  A  recent 
 study  of  five  markets  (Chicago,  Phoenix,  Nashville,  Spokane,  and  Bangor)  found  that 
 broadcasters  devoted  only  0.35%  of  their  total  programming  time  to  local  public  affairs 
 over  a  two-  week  period.  3  Some  stations  carried  no  local  programming  at  all. 
 Broadcasters  should  be  required  to  provide  adequate  local  public  affairs  programming  in 
 return  for  the  use  of  publicly  owned  airwaves.  This  programming  should  include 
 attempts  to  educate  the  public  about  local  elections,  candidates,  laws,  and  other  political 
 events. 


 Many  broadcasters  have  demonstrated  excellence  in  serving  the  public  interest. 
 However,  the  very  nature  of  capitalism  tends  to  suggest  that  some  broadcasters  will  do  as 
 little  as  possible  to  serve  the  public  interest  because  there  are  usually  more  profitable 
 alternatives.  Voluntary  standards  of  conduct  would  be  an  ideal  solution  ifall 
 broadcasters  would  agree  to  meet  the  established  public  interest  requirements,  but  this 


 *  Pinellas  Broadcasting  Co.  v.  FCC,  230  F.  2d  204,206  cert.  denied,  350  US  1007  (D.  C.  Cir.  1956) 
 3  \~~~~~~.  benton.  ora/  Polic\~/  TV/~~  l~  atsloca1.  htlnl  (Whats  Local  About  Local  Broadcasting?) 
431
 5 
 will  probably  never  happen  Standards  established  by  the  National  Association  of 
 Broadcasters  may  not  rise  to  the  level  that  should  be  required  of  television  broadcasters. 
 Individual  members  of  the  NAB  may  not  follow  standards  that  do  meet  public  interest 


 requirements,  and  the  NAB  has  no  way  to  compel  broadcasters  to  meet  the  public  interest 
 standards  they  establish.  Furthermore,  there  are  almost  400  broadcasters  who  are  not 
 even  members  of  the  NAK4  The  FCC  should  not  rely  on  the  broadcast  industry  to 
 voluntarily  give  up  valuable  airtime  for  public  interest  programming  when  the  industry 
 has  no  real  way  to  enforce  the  standards  it  establishes.  The  FCC  should  establish  and 
 enforce  public  interest  guidelines  that  each  broadcaster  must  meet.  These  guidelines 
 should  include  the  following  requirements: 


 Minimum  hours  of  non-  commercial,  educational  programming  for  children; 
 PvF  amming  guidelines  to  ensure  that  educational  programming  is  shown  at 
 times  that  children  will  most  likely  see  it; 


 Minimum  hours  of  local  public  interest  programming,  including  coverage  of  local 
 government  activities,  cultural  events,  and  adult  education  opportunities,  and; 
 Increased  access  to  the  airwaves  by  members  of  the  community. 


 The  broadcasting  industry  is  likely  to  object  to  mandates  concerning  these  public  interest 
 requirements.  The  additional  costs  for  broadcasters  will  likely  be  the  major  reason  for 
 protest.  However,  any  additional  costs  associated  with  these  services  will  be  more  than 
 offset  by  the  increased  revenue  broadcasters  will  receive  from  the  huge  increase  in 


 4  wvw:.  ntia.  doc.  go~/  pubinta~  co~  no~~  rnt~~  bint.  l~  t~  n  (Advisory  Committee  report,  Section  III) 
432
 6 
 available  programming  time.  5 


 III.  Broadcasters  Should  Be  Required  to  Devote  One  SDTV  Channel 
 to  Non-  Commercial  Public  Interest  Programming 


 Analog  broadcasting  forces  broadcasters  to  utilize  their  most  limited  resource,  time,  in 
 ways  that  will  maximize  profit.  This  often  means  shifting  the  most  profitable 
 programming  to  times  that  offer  the  best  opportunity  for  the  most  viewers.  Since  public 
 interest  progr  amming  is  not  generally  produced  for  profit,  it  is  often  aired  at  times  when  a 
 very  small  percentage  of  the  viewing  public  will  benefit  ffom  it.  This  means  that  while 
 broadcasters  might  technically  be  meeting  their  public  interest  requirements,  they  are 
 actually  doing  very  little  to  serve  the  needs  of  a  majority  of  the  viewing  public. 
 Requiring  broadcasters  to  devote  one  SDTV  channel  to  public  interest  programming 
 could  alleviate  this  problem. 


 With  the  advent  of  digital  technology,  broadcasters  will  soon  be  able  to  broadcast  six  to 
 eight  SDTV  channels.  6  The  Advisory  Committee  recognized  that  one  of  the  options 
 available  for  broadcasters  to  satisfy  their  public  interest  responsibilities  was  to  dedicate 
 one  of  their  multicasted  channels  to  public  interest  purpose~.~  This  could  be  the  most 
 effective  and  beneficial  way  for  broadcasters  to  serve  the  public  interest.  First,  a  single 
 channel  devoted  to  the  public  interest  would  eliminate  the  need  to  air  profitable 


   This  is  based  on  the  assumption  that  broadcasters  will  broadcast  multiple  SDTV  signals.  Broadcasters  who  elect  to  broadcast  one  HDTV  signal  should  have  comparable  requirements  that  are  modified  in  relation 
 to  the  ability  to  use  their  excess  spectrum  to  satisfy  public  interest  nquirements.  6  ~~  n~.~~  tia.  doc.~  o~/  pubintad\~  colo~~~  t~~  ubint.  htm  (Advisory  Committee  report,  Section  III) 
   id 
433
 7 
 programming  at  prime  viewing  times.  Progr  amming  times  could  be  determined  by  the 
 importance  of  the  progr  amming  to  the  community  instead  of  its  profitability.  The 
 additional  costs  of  providing  this  service  could  be  more  than  offset  by  the  huge  increase 


 in  broadcasting  time  on  the  other  channels  that  the  broadcaster  can  devote  to  commercial 
 Purpos=- 


 The  major  drawback  to  this  proposal  would  be  its  impact  on  broadcasters  who  wish  to 
 broadcast  one  HDTV  station  instead  of  several  SDTV  stations.  Broadcasters  who  wish  to 
 broadcast  one  HDTV  station  will  not  have  the  increased  revenue  that  multicasting 
 broadcasters  will  have.  However,  those  broadcasters  should  not  be  exempt  from  serving 
 the  public  interest.  Therefore,  new  regulations  should  be  more  flexible  with  HDTV 
 broadcasters  so  they  can  take  advantage  of  digital  technology  without  any  undue  burden. 
 One  suggestion  would  be  to  establish  a  certain  percentage  of  total  programming  that  each 
 broadcaster  must  devote  to  public  interest  progr  amming.  This  requirement  could  be  met 
 with  a  dedicated  station  for  SDTV  broadcasters  and  other,  less  stringent  requirements, 
 such  as  the  use  of  extra  bandwidth  for  public  interest  obligations,  for  HDTV 
 broadcasters.* 


 IV.  The  Commission  Should  Develop  Sanctions  for  Broadcasters  Who 
 Do  Not  Satisfy  Their  Public  Interest  Responsibilities 


 Broadcasters  can  develop  extensive  codes  of  conduct  in  their  attempts  to  serve  the  public 
 interest.  They  can  also  promise  to  abide  by  any  regulations  that  the  FCC  adopts. 


 *  Less  stringent  requirements  for  HDTV  broadcasters  might  also  encourage  broadcasters  to  broadcast  iu  HDTV,  which  is  the  route  that  Congress  and  the  FCC  originally  expected  broadcasters  to  pursue. 
434
 8 
 However,  without  the  threat  of  sanctions  against  stations  that  do  not  meet  the 
 requirements,  broadcasters  will  continue  to  conduct  business  as  usual  and  public  interest 
 programming  will  continue  to  decline  in  relation  to  the  total  amount  of  available 
 programming.  The  only  way  to  ensure  that  broadcasters  use  digital  technology  to  benefit 
 the  public  interest  is  to  develop  graded  sanctions  for  broadcasters  who  chose  not  to 


 follow  public  interest  guidelines. 


 A  system  of  graded  sanctions  for  broadcasters  who  do  not  satisfy  their  public  interest 
 obligations  would  be  much  more  effective  in  promoting  public  interest  programming  than 
 our  current  system.  Withdrawal  of  a  license  is  an  extreme  sanction,  and  will  very  rarely 
 be  done.  When  it  is  the  only  available  sanction,  broadcasters  can  be  reasonably  sure  that 
 it  will  not  occur,  and  can  reduce  public  interest  programming  with  little  fear  of 
 repercussions.  However,  a  graded  system,  such  as  the  one  used  in  Italy,  would  be  much 
 more  effective.  The  1990  Broadcasting  Act  allows  the  regulatory  authority  in  Italy  to 
 fine  broadcasters  or  temporarily  suspend  licenses  for  violations  that  would  not  justify 
 revocation  of  a  license.    This  type  of  graded  sanctioning  system  would  give  the 
 Commission  the  strength  it  needs  to  enforce  any  regulations  it  chooses  to  adopt. 


 v.  Conclusion 
 Broadcasters  have  done  a  fair  job  of  repaying  society  for  the  use  of  the  public  airwaves 
 by  broadcasting  programs  that  serve  the  public  interest.  Nevertheless,  the  advent  of 
 digital  technology  will  enable  broadcasters  to  greatly  expand  their  programming  and 


 9  ivww.  benton.  org/  DigitalBeat/  dbO4  1699.  html  (Public  Merest  Obligations  iu  Broadcasting-  Internsttional 
 Comparisons) 
435
 9 
 revenue.  The  Commission  should  take  action  now  to  ensure  that  broadcasters  use  this 
 new  technology  in  a  way  that  will  benefit  the  public  interest.  By  establishing  clear  public 
 interest  requirements  that  broadcasters  must  meet,  requiring  a  small  but  substantial 
 portion  of  total  programmin  g  time  to  be  devoted  to  public  interest  programming,  and 
 developing  sanctions  for  broadcasters  who  do  not  meet  minimum  public  interest 
 requirements,  the  Commission  can  make  sure  that  society,  as  well  as  broadcasters,  benefti 
 from  the  switch  to  digital  broadcasting. 


 _..  ...  II.-^__.._.  ..-.__  l_  -.._  -.-~~-..  l.*-_  ll___  l.- 
436
 To:  Magalie  Roman  Salas,  Executive  Secretary-  Fe 
 Communications  Commission 


 From:  Amy  E.  Neff 
 cc:  Professor  Glenn  H.  Reynolds,  University  of  Tennessee  College  of  Law 


 Date:  March  17,  2000 
 Re:  Comments  on  Proposed  Rulemaking  Concerning  Public 
 Interest  Obligations  of  Television  Broadcast  Licensees 
 (Docket  No.  99-  360) 


 Dear  Secretary  Salas, 
 This  comment  is  sent  in  response  to  the  FCC's  request  for 
 public  comments,  65  Fed.  Reg.  4211  (January  26,  2000),  regarding 
 the  public  interest  responsibilities  of  television  broadcasters 
 in  the  wake  of  digital  technology.  Specifically,  I  am  writing  to 
 advocate  that  the  FCC  capitalize  on  the  timing  of  this 
 transition  to  digital  television  ("  DTU")  in  order  to  formulate 
 new,  more  quantitative  guidelines  regarding  children's 
 programming.  These  new  guidelines  should  be  designed  to  make 
 broadcasters  take  responsibility  for  the  role  television  plays 
 in  the  development  of  our  nation's  children. 
 Although  the  views  contained  within  this  comment  may 
 reflect  my  views  as  a  law  student,  my  comments  primarily  stem 
 from  my  role  as  a  soon-  to-  be  stepmother  to  two  school-  age  girls 
 and  from  my  hopes  that  someday  I  will  raise  a  child  of  my  own. 
437
 Amy  E.  Neff 
 March  17,  2000 


 Introduction: 
 Like  it  or  not,  television  has  become  a  prevalent  part  of 
 most  children's  lives.  It  is  the  after-  school  baby-  sitter  for 
 children  arriving  home  from  school  before  their  parents  arrive 
 home  from  work.  It  is  the  pacifier  to  young  children  whose  busy 
 parents  do  household  chores.  It  is  a  major  form  of  recreation 
 for  many  children,  who,  unexplainably,  are  not  as  interested  in 
 playing  in  the  neighborhood  as  my  friends  and  I  were  as 
 children.  Today's  children  prefer  watching  television  to  more 
 active  pursuits.  Consequently,  it  is  probable  that  when  children 
 are  introduced  to  the  additional  features  DTV  can  offer,  it  will 
 be  even  more  difficult  to  separate  them  from  the  television. 
 Since  our  children  are  spending  an  increasing  amount  of 
 time  in  front  of  the  television,  our  need  for  broadcasters  to 
 provide  programming  specifically  geared  towards  children's 
 education  increases.  This  is  not  an  "if  you  can't  beat  them, 
 join  them"  approach;  rather,  it  is  a  realistic  approach  that 
 takes  into  account  the  unavoidable  fact  that  children  watch  a 
 significant  amount  of  television,  '  and  will  continue  to  do  so. 
 Broadcasters  Have  Been  Allowed  to  Shirk 
 Their  Public  Interest  Duties. 


 The  Federal  Communications  Commission  ("  FCC")  has  been  down 
 this  proverbial  road  before  with  television  broadcasters 


 1  On  the  average,  children  ages  2-  17  watch  3  hours  of  television  per  day. 
 Television  Audience  1993  at  14,  Nielsen  Media  Research,  1993. 


 2 
438
 Amy  E.  Neff 
 March  17,  2000 


 regarding  their  public  interest  obligations  to  children.  In  the 
 early  1970's  the  FCC  explicitly  recognized  that  broadcasters  had 
 an  obligation  to  provide  educational  programming  to  children.  At 
 that  time  though,  the  FCC  determined  that  no  quantitative 
 requirements,  other  than  a  limit  on  the  amount  of  commercials, 
 were  needed  to  ensure  that  the  obligation  was  recognized.  Not 
 surprisingly,  this  hope  for  self-  regulation  in  the  industry 
 regarding  children's  programming  remained  just  that,  a  hope. 
 Then,  in  1984,  even  after  a  task  force  determined  that 
 broadcasters  were  only  making  half-  hearted  efforts  to  provide 
 children's  programming,  the  FCC  again  chose  to  refrain  from 
 structuring  a  quantitative  standard  for  measuring  the 
 broadcasters'  performances.  Finally,  when  Congress  enacted  the 
 Children's  Television  Act  ("  CT,")  in  1990,  the  FCC  responded 
 with  a  rulemaking  to  accommodate  mandates  in  the  legislation 
 regarding  children's  programming. 
 After  the  public  expressed  concern  at  the  lack  of  guidance 
 provided  for  broadcasters  in  the  CTA  rulemaking,  the  FCC  issued 
 its  children's  television  policy  statement  and  accompanying 
 rules  to  alleviate  this  concern.  Still,  the  problem  is  that  the 
 FCC  has  not  required  enough  of  broadcasters.  Too  many  of  the 
 policies  propagated  by  the  FCC  in  1996  allow  broadcasters  the 
 "wiggle  room"  to  opt  out  of  making  any  real  substantive  changes 


 3 
439
 Amy  E.  Neff 
 March  17,  2000 


 to  the  children's  programming  they  provide.  Recall  the  following 
 portions  of  the  policy: 
 1.  The  FCC  created  a  term  called  "core  programming"  that 


 encompassed  the  agency's  requirements  for  children's 
 programming.  In  this  definition,  the  FCC  declined  to 


 require  that  such  programming  have  education  as  its  primary 
 purpose.  Instead,  programming  only  had  to  have  children's 
 education  as  a  significant  purpose.  Additionally,  the  FCC 
 stated  that  it  would  rely  on  the  good  faith  judgment  of 
 broadcasters  to  determine  whether  a  program  had  this 
 significant  educational  purpose.  (Clearly,  this  is  a  self- 
 regulating  measure.) 
 2.  No  particular  age  groups  needed  to  be  targeted  in  order  to 
 qualify  as  core  programming. 
 These  and  other  provisions  of  the  policy  statement  enabled 
 broadcasters  to  meet  their  public  interest  obligations  with 
 minimal  effort. 


 The  Guidelines  for  DTV  Broadcasters  Should  Include  Quantitative  Standards 
 The  FCC's  Notice  of  Proposed  Rulemaking  ("  NPRM")  asked  how 
 its  children's  television  policy  statement  should  apply  in  a 


 digital  environment.  The  answer  is  that  the  policy  needs  to  be 
 strengthened  before  it  is  applied  to  DTV  broadcasters. 


 4 
 _  _  I^  _...  -  _  ..  I  .,.  .  ..-.  ._,_,,...._  ---  I- 
440
 Amy  E.  Neff 
 March  17,  2000 


 Several  letters  from  members  of  Congress  have  preceded  this 
 NPRM  suggesting  that  DTV  broadcasters  simply  be  required  to 


 comply  with  provisions  of  the  CTA  in  order  to  receive  a  DTV 
 license.  These  legislators  are  advocating  that  the  FCC  simply 
 reasserts  a  position  that  has  proven  to  be  ineffective  in 
 improving  children's  programming.  To  merely  require  the  FCC  to 
 enforce  the  CTA  and  its  accompanying  rules  would  allow  DTV 
 broadcasters  to  once  again  escape  from  providing  the  children's 
 programming  that  is  needed 
 However,  federal  legislators  aren't  the  only  ones  backing 
 away  from  a  stronger  position  by  the  FCC  regarding  children's 
 programming.  Industry  insiders,  as  expected,  are  promoting  an 
 approach  that  isn't  going  to  put  any  real  pressure  on 
 broadcasters  to  make  any  substantive  changes.  For  example,  in  a 
 letter  written  by  the  Chairman  of  Paxson  Communication 
 Corporation  to  the  FCC,  the  Chairman  recommends  that  the  FCC 
 adopt  the  company's  proposed  Public  Interest  Code  of  Conduct 
 ("  Code")  .2  In  this  Code,  there  is  only  one  reference  to  children, 
 and  it  is  a  general  one.  3  Conversely,  scattered  throughout  the 
 Code  is  text  that  ensures  broadcasters  will  retain  their  prized 


 '  Letter  from  Lowell  Paxson,  Chairman  of  Paxson  Communication  Corporation,  to  William  Kennard,  Chairman,  Federal  Communications  Commission  (Feb.  11,  2000). 
 3  "Television  stations'  service  to  their  communities  includes  contributions  to 
 political  discourse,  public  service  announcements,  children's,  religious, 
 educational  and  cultural  programming  as  well  as  involvement  in  specific 
 community  activities."  Letter  from  Paxson  to  Kennard,  at  4. 


 5 


 .  ..-_-._^  __-..._  _.,_.__  __--_.  "~..."_  -- 
441
 Amy  E.  Neff  March  17,  2000 
 discretion,  allowing  them  to  essentially  opt  out  of  the  Code's 
 requirements. 
 It  is  apparent  that  broadcasters  are  not  going  to  move 
 beyond  what  is  required  of  them,  unless  compelled  to  do  so  by 
 the  guidelines  for  DTV  licensees.  Therefore,  broadcasters  that 
 have  become  accustomed  to  fulfilling  their  existing  public 
 interest  obligations  regarding  children  by  doing  the  bare 
 minimum  need  to  have  the  bar  raised.  Establishing  some  new 
 quantitative  standards  would  accomplish  this  goal. 
 The  FCC  Should  Adopt  the  Recommendations  for  Quantitative 
 Standards  Proposed  by  People  for  Better  TV. 


 As  People  for  Better  TV  (PTV)  correctly  pointed  out,  DTV 
 technologies  provide  a  fertile  ground  for  the  expansion  of 
 children's  educational  programming.  4  Accordingly,  PTV  advocates 
 that  DTV  broadcasters  should  be  required  to  set  aside  a  minimum 
 of  7  hours  each  week  for  children's  educational  programs.  Since 
 DTV  enables  data  transmissions  to  schools  and  multicasting, 
 broadcasters  would  seem  to  have  ample  opportunity  to  meet  such  a 
 standard. 
 Even  if  the  level  of  children's  programming  was  already  at 
 the  7  hours  per  week  level,  frequent  interruptions  for 
 commercials  would  still  effectively  divert  children's  attention 
 from  educational  topics.  In  its  reminder  to  the  FCC  that  a 
442
 Amy  E.  Neff 
 March  17,  2000 


 public  proceeding  on  the  public  interest  obligations  of  DTV 
 broadcasters  should  be  held,  PTV  recommended  that  commercials  be 
 limited  during  children's  programs  to  four  sixty-  second 
 commercials  per  hour.  5  That  would  allow  for  56  of  every  60 
 minutes  of  children's  programming  to  be  free  of  advertising. 
 Currently,  broadcasters  may  use  10.5-  12  minutes  (weekends  or 
 weekdays  respectively)  of  every  hour  of  children's  programming 
 for  commercials.  6 
 Historically,  the  reason  broadcasters  have  not  been 
 supportive  of  more  children's  programming,  particularly  for 
 younger  children,  is  that  children  are  not  consumers,  and  the 
 advertising  spots  that  make  the  broadcasters  money  are  more 
 effectively  shown  during  adult  programming.  Yet,  it  is  these 
 same  broadcasters  that  oppose  limits  to  the  amount  of 
 commercials  that  may  be  shown  during  children's  programs.  This 
 fickle  position  indicates  that  broadcasters  really  just  don't 
 like  being  told  what  to  do  by  the  FCC. 
 The  commercial  limits  proposed  by  PTV  could  go  a  step 
 further,  however.  Why  not  require  DTV  broadcasters  to  schedule 
 commercials  only  at  the  beginning  and  at  the  end  of  programs, 
 particularly  30-  minute  programs.  3  A  guideline  such  as  this  would 


 4  Letter  from  Mark  Lloyd,  Counsel  for  People  for  Better  TV,  to  William  Kennard,  Chairman,  Federal  Communications  Commission  (Nov.  16,  1999),  at  2. 
 '  Letter  from  Lloyd  to  Kennard,  at  2. 
 6  47  U.  S.  C.  S.    303a  (1990). 


 7 


 -.  ^.  .  ..-  -_  ._  -_.  s    ___  x-.-  I.  _I_  _  _._-  ^,,.  .,--  ...  ..--  m-  w--- 
443
 Amy  E.  Neff 
 March  17,  2000 


 allow  children  to  watch  a  program  free  of  interruption.  7  This 


 approach  would  be  more  in  keeping  with  a  serious  commitment  to 
 educating  children  through  the  medium  of  television,  a  definite 
 public  interest. 
 Other  quantitative  measures  that  could  be  implemented  would 
 simply  require  some  fine-  tuning  of  the  1996  policy  statement. 
 For  instance,  perhaps  core  programming  should  target  specific 
 age  groups  of  children.  Currently,  broadcasters  tend  to  meet 
 existing  weekly  children's  programming  goals  by  airing  primarily 
 programs  targeted  at  teenage  "children."  They  do  this  because 
 teenagers,  unlike  toddlers,  are  consumers  that  can  and  do 
 respond  to  advertising. 
 I  would  also  suggest  that  the  FCC  modify  its  requirement 
 that  core  programming  occur  between  7:  00  a.  m.  and  10:  00  p.  m.,  by 
 requiring  broadcasters  to  include  children's  programming  at 
 specific  times  of  the  day  when  children  are  watching-  after 
 school,  before  bedtime,  during  the  dinner  hour,  etc.  This  would 
 preclude  broadcasters  from  grouping  children's  programs  at  non- 
 peak  viewing  times  in  an  effort  to  save  prime  time  for  adult 
 programming  exclusively.  Again,  with  multicasting  capabilities, 
 this  guideline  should  not  be  difficult  to  meet. 


 '  This  is  an  idea  called  "clustering"  by  Action  for  Children's  Television,  the 
 group  that  first  promoted  the  concept.  Charting  the  Digital  Broadcasting 


 8 
444
 Amy  E.  Neff 
 March  17,  2000 


 DTV  Broadcasters  Can  Be  Precluded  from 
 Hidinq  Behind  the  First  Amendment. 


 Concededly,  the  FCC's  control  of  DTV  broadcasters  is 
 limited  by  the  First  Amendment,  which  accords  significant 
 editorial  powers  to  broadcasters  in  the  name  of  free  speech.  At 
 this  same  time,  the  FCC  has  been  given  a  counteracting  power  to 


 specifically  determine  the  public  interest  obligations  of 
 broadcasters. 
 Television  broadcasters  have  a  duty  to  be  public  trustees.  ' 
 They  must  act  as  fiduciaries  of  the  public  interest,  as  if  owned 
 by  the  public.  At  the  same  time,  broadcasters  are  in  business  to 
 make  money.  These  rivaling  goals  put  broadcasters  in  a  unique 
 position  where  they  must  serve  two  masters-  the  government  and 
 the  broadcasting  companies'  shareholders. 
 Congress  was  clearly  concerned  about  the  failure  of 
 broadcasters  to  place  priority  on  children's  programming  when  it 
 passed  the  CTA.  During  the  discussion  of  the  CTA,  Congress 
 concluded  that  the  First  Amendment  would  not  prevent  the  FCC 
 from  considering  whether  a  television  licensee  has  provided 
 programming  specifically  designed  for  children  when  issuing  or 
 renewing  a  license. 
 The  United  States  Supreme  Court  has  echoed  the  views  of 
 Congress  regarding  the  First  Amendment's  application  to 


 Future:  Final  Report  of  the  Advisory  Committee  on  Public  Interest  Obligations  of  Digital  Television  Broadcasters,  (Dee  18,  1998),  at  29. 


 9 
445
 Amy  E.  Neff 
 March  17,  2000 


 children's  programming.  In  fact,  the  Court  has  even  gone  so  far 
 as  to  hold  that  the  FCC  has  the  ability  to  impose  limited 
 content  restraints  on  broadcasters.  g 
 The  quantitative  standards  proposed  in  this  comment,  if 
 implemented  by  the  FCC,  do  not  contemplate  regulating  content. 
 They  are  content  neutral  and  only  impose  quantitative 
 constraints  on  the  broadcaster's  use  of  digital  television. 
 Surely,  if  content  limitations  would  be  allowable,  quantitative 
 standards  should  pass  First  Amendment  scrutiny. 
 Conclusion 
 Although  the  technology  of  DTV  promises  to  enhance  all 
 types  of  programming,  including  children's  programming,  it  is 
 really  the  advent  of  its  use  that  is  more  significant.  The 
 transition  to  DTV  allows  the  FCC  to  exert  real  pressure  on 
 broadcasters  that  desire  digital  licenses.  Through  the 
 propagation  of  some  rules  with  "bite,"  the  FCC  can  finally  stop 
 broadcasters  from  shirking  important  public  interest 
 responsibilities.  The  FCC  should  create  guidelines  that 
 acknowledge  the  active  role  television  plays  in  children's 
 education.  Congress  recognized  this  and  stated:  it  has  been 
 clearly  demonstrated  that  television  can  assist  children  to 
 learn  important  information,  skills,  values,  and  behavior."" 


 a  Charting  the  Digital  Broadcasting  Future,  supra  note  8,  at  19. 
 '  Turner  Broadcastinq  v.  FCC,  512  U.  S.  622  (1994). 
 lo  47  U.  S.  C.  S.  9  303a  (1990). 


 10 


 .  ,....  __._"  _.__  .^  .._...  ^^  I__,  .I--"*.--_---_-"  X. 
446
 To:  William  Kennard,  Chairman,  Federal  Communications  Commission 
 From:  Amy  Fletcher 
 CC:  Prof.  Glenn  Reynolds 


 Date:  March  17,  2000 
 Re:  Comments  on  Public  Interest  Requirements  for  Digital  Broadcasters 


 Dear  Chairman  Kennard, 
 I  am  writing  to  you  in  response  to  the  Federal  Communications  Commissions 
 request  for  comments  on  public  interest  requirements  for  broadcasters  during  the 
 transition  to  digital  technology,  65  FR  4211,  FCC  99-  390  (Jan.  26,  2000). 


 Introduction  and  Background 
 With  ninety-  eight  percent  of  American  households  having  at  least  one  television 
 set,  television  has  arguably  the  most  influential  presence  in  American  culture.  I  have 
 relied  on  television  for  varying  purposes  at  every  point  in  my  life,  and  it  has  undoubtedly 
 had  an  influence  on  me.  As  a  child  of  the  Eighties,  I  grew  up  watching  educational 
 programs  such  as  Sesame  Street  and  Mister  Rogers    Neighborhood.  As  I  matured,  I 
 began  to  rely  on  television  more  for  entertainment  value  and  for  my  primary  source  of 
 news.  A  day  rarely  goes  by  that  I  do  not  turn  on  my  television  set.  Since  television  is 
 such  an  influential  medium,  public  interest  requirements  should  become  more 
 sophisticated  to  keep  up  with  the  transition  into  a  digital  era. 
 The  notice  of  proposed  rulemaking  for  public  interest  obligations  of  television 
 broadcast  licenses  addresses  two  particular  areas  that  are  of  great  concern  to  me: 
 childrens  programming  and  political  programming.  Television  broadcasters  must  be 
 aware  that  many  parents  choose,  whether  right  or  wrong,  to  use  television  as  a  babysitter. 


 1 
 ._._  _  .-~  ~.~-  ,-  I.,_-..--.,  .---.-  I_..--  ,.  I- 
447
 The  FCC  should  impose  the  highest  obligations  on  broadcasters  of  childrens 
 programming  to  ensure  that  children  will  not  be  adversely  affected  by  the  things  they  see 
 and  hear  on  television  during  the  times  of  day  they  are  likely  to  be  watching. 
 My  second  concern  is  the  amount  of  airtime,  or  lack  thereof,  that  is  dedicated  to 
 political  candidates  and  campaigns,  as  well  as  issues  that  may  be  affecting  communities 
 locally.  Technically,  broadcasters  are  merely  borrowing  the  airwaves  from  the  viewing 
 public.  With  this  being  the  case,  broadcasters  should  have  explicit  obligations  to  provide 
 coverage  of  the  issues  that  affect  the  viewing  public  they  serve. 
 As  a  young  adult  female  who  desires  both  a  family  and  a  career  in  the  political 
 arena,  I  am  very  concerned  about  the  impact  digital  technology  may  have  on  my  children 
 and  my  career.  I  would  like  to  urge  the  FCC  to  continue  to  hold  television  broadcast 
 licensees  to  high  standards  for  public  service.  As  we  move  forward  into  a  digital  age,  we 
 must  use  advancements  in  technology  to  likewise  advance  the  quality  of  public  service. 


 Standards  for  Childrens  Programming 
 An  article  I  read  recently  described  television  in  two  distinct  ways  as  to  its  effect 
 on  a  childs  life:  it  can  be  a  positive  educational  tool,  or  a  value-  destroying  influence. 
 The  FCC  must  ensure  that  television  continues  to  be  an  educational  tool  for  children  of 
 all  ages.  Current  regulations  place  limits  on  the  duration  of  advertisements  that  can  be 
 shown  during  childrens  programs.  Broadcasters  are  limited  to  only  10.5  minutes  per 
 hour  on  weekends  and  12  minutes  per  hour  on  weekdays.    Frequency  may  become  a 
 bigger  problem  than  duration  when  the  internet  merges  with  television,  and  these 
 numbers  may  become  obsolete. 


   17  U.  S.  C.  A.  Q  303a(  b) 
 2 


 -  ..-_  _  -  .-.-  _  ,-...  r--  ~-_ 
448
 Surfing  the  web  without  seeing  advertisements  on  every  site  you  visit  is 
 practically  impossible  today.  In  addition,  these  advertisements  may  be  targeted  for  a 
 specific  product  or  service  that  is  related  to  the  subject  of  the  site  you  are  visiting.  As  I 
 was  doing  web-  based  research  for  this  comment,  the  website  mvp.  com  mysteriously 
 appeared  on  my  screen  without  my  having  to  link  to  it.  Out  of  nowhere,  Wayne  Gretzky, 


 Michael  Jordan,  and  John  Elway,  all  smiling,  decided  they  wanted  me  to  push  a  button  so 
 I  could  have  the  latest  pair  of  New  Balance  tennis  shoes  for  only  $89.99.  Children  should 
 not  be  subjected  to  this  manner  of  targeted  advertising.  Without  strict  standards,  this 
 capability  will  be  carried  over  to  our  television  sets  as  digital  technology  becomes  more 
 prevalent. 
 One  of  the  greatest  threats  to  the  well  being  of  children  is  the  ability  to  target 
 commercials  to  specific  households  depending  on  the  choice  of  programming.  Marketers 
 will  know  what  we  watch,  and  when  and  how  often  we  watch  it.  This  poses  a  serious 
 enough  threat  to  adults  who  are  easily  coaxed  into  buying  products.  Imagine  if 
 vulnerable  children  could  ORDER  NOW  by  the  simple  click  of  a  button  while  they  are 
 watching  their  favorite  cartoon.  Children  should  be  able  to  enjoy  watching  television 
 without  being  bombarded  with  advertisements.  When  television  does  merge  with  the 
 World  Wide  Web,  the  FCC  should  place  limits  on  the  number  of  advertisements  that  can 
 be  shown  during  the  hours  of  childrens  programming.  People  for  Better  TV  has 
 recommended  a  limit  of  four  commercials  per  hour  during  childrens  programs.  2  While 
 this  number  may  be  too  low,  the  maximum  limit  should  not  exceed  twelve.  Working 
 with  the  current  duration  limits,  this  would  allow  two  quality  commercials  for  every  ten 
 minutes  of  programming.  By  imposing  these  limits,  children  will  be  limited  as  to  the 


 3 
449
 number  of  products  that  they  can  be  influenced  to  purchase  while  watching  their  favorite 
 shows. 
 In  addition  to  imposing  advertising  obligations,  the  FCC  should  consider  ways  to 
 enhance  educational  programming  through  the  increase  in  the  number  of  channels 
 available.  Since  broadcasters  do  not  own  the  airwaves  they  are  currently  licensed  to  use, 
 they  could  be  required  to  donate  a  specified  number  of  hours  for  use  by  schools  and 
 other  educational  institutions.  The  number  of  hours  they  donate  should  be  based  on  the 
 schedules  of  local  school  districts.  Due  to  the  added  capabilities  of  multicasting,  they 
 may  have  the  option  of  donating  an  entire  channel  to  further  educational  purposes.  The 
 individual  schools  could  evaluate  how  to  allocate  the  time  that  they  are  given  to  enhance 
 the  education  of  students.  Perhaps  the  students  could  develop  their  own  programming  to 
 be  shown  to  the  community  at  large,  thus  improving  relationships  between  the 
 community  and  the  school.  Schools  may  wish  to  use  their  airtime  strictly  for 
 programming  to  be  shown  throughout  the  school.  The  school  could  also  develop 
 programs  to  keep  children  who  are  ill  at  home  from  getting  behind  other  classmates 
 through  tutorial  programs.  With  unlimited  options,  educational  institutions  would  have 
 access  to  a  powerful  educational  tool  that  would  otherwise  be  unaffordable  without  the 
 support  of  local  broadcasting  stations. 


 Standards  for  Political  Programming 
 According  to  the  Alliance  for  Better  Campaigns,  broadcast  time  is  the  single 


   Peoplejbr  Better  TVRecommendations  (visited  Mar.  11,2000)~  httr,://  www.  bettertv.  or~.  pbtvrec.  htm>. 
 3 
450
 largest  expense  in  political  campaigns.  3  In  1998,  a  White  House  advisory  panel  of 
 broadcasters  and  public  interest  advocates  recommended  that  television  stations  should 
 devote  five  minutes  a  night  to  political  discourse  as  part  of  their  public  interest 
 obligations.  As  of  the  February  1,  2000,  New  Hampshire  primary,  the  national  networks 
 were  airing  an  average  of  only  thirty-  four  seconds  of  political  discourse  a  night.  4  This 


 problem  of  lack  of  coverage  on  the  networks  has  some  roots  in  the  extensive  coverage 
 offered  by  cable  channels  such  as  CNN,  MSNEE,  and  the  Fox  News  Channel.  While 
 many  Americans  can  tune  in  to  these  cable  networks  for  political  news,  around  85  million 
 Americans  are  left  out,  because  they  either  are  unwilling  or  unable  to  pay  for  cable. 
 Access  to  political  information  should  not  be  an  economic  issue. 
 The  FCC  should  impose,  not  merely  recommend,  obligations  on  broadcasters  to 
 offer  free  airtime  to  candidates  running  in  local  or  national  elections.  This  airtime  should 
 be  allotted  among  all  interested  candidates,  so  that  the  station  does  not  inadvertently 
 endorse  one  candidate  over  another.  This  requirement  would  not  only  free  up  funds  for 
 political  candidates  to  use  in  other  ways,  but  it  would  also  ensure  that  the  entire  American 
 viewing  population  remains  informed  about  elections  and  political  issues.  People  should 
 not  be  forced  to  buy  cable  just  so  they  can  remain  reasonably  informed  about  current 
 events.  The  remedy  to  this  problem  can  be  justified  once  again  by  #z.  f&  o!  that 
 broadcasters  pay  nothing  for  the  use  of  airwaves.  Since  the  airwaves  are  borrowed  from 
 the  public  domain,  users  of  those  airwaves  should  be  required  to  keep  the  public  they 
 serve  informed  on  local  and  national  elections. 


   Issue  Briej  Free  Air  Time  (visited  Mar.  11,200O) 
 <http://  www.  bettercamticins.  or~  doeuments/  freetime.  htm>.    :Vetwork  I,  iewers  Get  Fleeting  Glimpses  of  Presidential  Hopefuls,  Study  Finds  (visited  Mar.  7,200O) 


 <http:  llwww.  bettercamDaiws.  or~>. 


 I..  _  .  .  .  _  --_  ._...  ---_  I  ----. 
451
 Requiring  broadcasters  to  offer  free  airtime  to  further  political  debate  will 
 hopefully  improve  the  quality  of  candidate  centered  programming.  A  study  by  the 
 Project  for  Excellence  in  Journalism  found  that  eighty  percent  of  the  network  coverage 


 leading  up  to  this  years  New  Hampshire  primary  focused  on  campaign  tactics  and 
 strategies,  while  only  thirteen  percent  was  devoted  to  issues.  5  If  broadcast  networks 
 would  devote  free  airtime  to  political  candidates  by  providing  forums  where  important 
 issues  could  be  debated  and  expressed,  voters  would  be  more  informed  when  they  head  to 
 the  ballot  box.  Likewise,  if  the  viewing  public  knows  more  about  the  candidates  actual 
 platforms,  as  opposed  to  their  campaign  strategies,  more  people  may  feel  compelled  to 
 vote.  An  additional  benefit  may  be  that  free  airtime  would  level  the  playing  field 
 between  candidates,  thus  diminishing  the  public  perception  that  the  candidate  who  raises 
 the  most  money  wins. 
 With  so  many  benefits  possible,  broadcasters  should  be  required  by  the  FCC  to 
 donate  airtime  to  political  campaigns.  Three  and  one-  half  hours  a  week,  or  thirty  minutes 
 per  day,  seems  to  be  an  appropriate  minimum.  Broadcasters  would  have  the  option  of 
 how  to  allocate  these  hours  during  the  week  based  on  the  types  of  programming  they 
 would  like  to  show.  In  non-  election  years,  the  required  hours  could  be  devoted  to  local 
 issues  that  individual  communities  may  be  faced  with.  In  election  years,  the  required 
 hours  should  be  allotted  equally  to  important  local  and  national  campaigns.  Citizens  are 
 entitled  to  adequate  coverage  of  and  reasonable  access  to  issues  that  may  affect  them. 
 The  FCC  must  impose  minimum  requirements  on  local  broadcasters  to  ensure  that  this 


 duty  is  not  left  up  to  cable  stations. 


 5  Sean  Elder.  Election-  free  71  (visited  Mar.  11,  2000) 
 ~http:  ll~~  w.  salon.  com/  media/  col/  elde/  20~~  02~  29/  camDai~  index.  html~. 


 6 


 _.  -  ^__  _  -..  ..-  .__*-  -~._--- 
452
 Conclusion 
 Since  the  introduction  of  digital  television  sets  into  the  market  in  August  of  1998, 


 over  155,000  units  have  been  sold.  Sales  of  digital  television  sets  have  increased  over 
 475  percent  since  this  time  last  year.  6  With  more  Americans  having  access  to  digital 
 technology,  the  FCC  must  take  action  to  impose  higher  standards  on  digital  broadcasters. 
 The  increase  in  capabilities  must  be  accompanied  by  an  increase  in  the  public  interest 
 standards  in  order  to  provide  adequate  protection  to  the  viewing  public. 
 The  FCC  must  continue  to  afford  the  most  protection  to  children  through  limits  on 
 advertising.  Children  can  also  benefit  from  the  transition  to  digital  technology  through 
 mandatory  education  requirements  for  local  broadcasters.  In  addition,  the  FCC  must 
 ensure  that  broadcasters  devote  a  specified  amount  of  free  airtime  to  political  discourse. 
 As  digital  technology  creates  endless  possibilities  for  the  way  that  we  watch  television, 
 broadcasters  must  likewise  be  held  accountable  for  serving  the  public  interests  as  these 
 possibilities  are  explored.  The  airwaves  they  use  are  on  loan  from  the  public.  The  FCC 
 has  a  duty  to  make  certain,  through  the  imposition  of  high  public  interest  requirements, 
 that  broadcasters  are  worthy  of  the  airwaves  they  use. 
 Thank  you  for  your  consideration  of  these  matters. 
 Cordially, 


 Amy  D.  Fletcher 


   DTTSales  Start  OffStrong  in  2000  (visited  Feb.  29.  2000) 
 <w~  siwyg:  fJ4.55lhttp:  lhww.  dtvweb.  orglnews~  press  release.  cfm?  RecordID=  148>.  - 


 7 
453
 TO:  Magalie  Roman  Salas,  Office  of  the  Secretary,  Federal  Communications  Commission 
 FR0M:  Chad  E.  Wallace 
 DATE:  March  16,  2000 
 RE:  Comments  on  Commission's  Notice  of  Inquiry  on  Public  Interest  Obligations  of  Television  Broadcast  Licensees 


 1NTRoDucT1oNANDBAcKGRouND 
 On  January  26,  2000,  the  Federal  Communications  Commission 
 published  a  notice  of  inquiry  concerning  the  public  interest 
 obligations  of  television  broadcast  licensees  with  the  advent  of 
 digital  television.  65  Fed.  Reg.  4211  (Jan.  26,  2000).  Under 
 the  current  regulatory  scheme,  broadcast  licensees  must  comply 
 with  various  pubic  interest  obligations  dealing  with  such  issues 
 as  community  programming,  political  discourse,  and  educational 
 programming.  The  old  analog  format,  under  which  the  present 
 regulatory  scheme  is  based,  is  being  replaced,  by  mandate,  with 
 digital  technology.  The  Commission's  notice  of  inquiry  was 
 undertaken  to  "collect  and  consider  all  views"  on  broadcasters' 
 public  interest  obligations  in  the  digital  world.  With  these 
 comments,  I  respectfully  respond. 
 I  am  a  second-  year  law  student  at  the  University  of 
 Tennessee  College  of  Law  and  a  consumer  of  television 
 programming.  I  am  writing  to  voice  my  conviction  that  more 
 public  interest  obligations  should  be  imposed  on  television 
 broadcast  licensees  with  the  arrival  of  digital  technology.  In 
454
 particular,  with  the  importance  of  an  informed  electorate,  more 
 time  should  be  devoted  to  political  discourse  either  with  free  or 


 reduced  rate  time  for  candidates.  And,  with  the  unwavering 
 importance  of  educational  programming  for  children,  the  minimum 
 weekly  air  time  devoted  to  this  subject  should  be  increased. 
 Moreover,  or  in  the  alternative,  the  existing  or  any  new 
 obligations  imposed  should  be  enforced  in  a  way  that  truly  serves 
 "the  public  interest,  convenience  and  necessity."  Existing 
 regulations  are  too  relaxed  and  allow  broadcasters  to  fulfill 
 their  obligations  in  irrational  forms. 
 MoREi  ,J?  UBLIC  I-  ST  OBLIGXi!  IWS  SHOULD  BE  RdPOSED  ON  BROADCAST 
 LICENSEES  WITH  THE  INCREASED  CAPABILITY  OF  DIGITAL  TEZEVISION 


 The  Telecommunications  Act  of  1996  specifically  provides 
 that  the  public  interest  standard  is  applicable  to  television 
 broadcasting  in  the  digital  era.  Digital  television  allows 
 broadcasters  to  do  more  with  their  existing  space  in  the 
 bandwidth:  broadcasters  will  have  the  capability,  if  they  so 
 choose,  to  offer  as  many  as  six  channels  on  the  digital  bandwidth 
 where  they  could  only  offer  one  on  the  analog  format.  With  the 
 increased  capability  should  come  increased  public  interest 
 obligations  and  not  just  increased  commercial  opportunity  for 
 broadcasters.  In  all  fairness,  I  do  recognize  that  it  may  play 
 out  in  the  end  that  broadcasters  will  still  only  use  one  channel 
 of  high  definition  television  (HDTV).  If  that  turns  out  to  be 


 2 
 _-,.  _  _  -_--  -_..  .-  --_  1-~ 
455
 true,  their  situation  will  be  no  different  than  under  the  analog 
 format  and  more  regulation  may  not  be  appropriate. 
 If  broadcasters  are  only  required  to  continue  to  air  the 


 same  level  of  public  interest  programming  with  digital  television 
 as  they  do  with  analog,  the  percentage  of  public  interest 


 television  in  relation  to  broadcasters'  capability  will  decline. 
 This  means  that  the  on-  air  public  services  the  broadcasters  do 
 provide  will  become  mixed  in  with  an  even  larger  mass  of 
 commercial  programming.  Thus,  the  overall  effect  will  be  a 
 further  "diluting"  of  public  service  programming-  such  programming 
 will  be  harder  to  find  or  stumble  upon  among  all  the  other  non- 
 public  service  programming. 
 On  the  other  hand,  imposing  more  public  interest  obligations 
 on  broadcasters  with  digital  television  would  not  raise  the 
 overall  percentage  of  public  interest  programming  in  relation  to 
 their  overall  capability.  The  level  of  obligation  would  remain 
 the  same  relatively.  But  broadcasters  oppose  any  new  obligations 
 because  such  would  only  cut  into  the  additional  profits  that 
 digital  television  is  certain  to  bring.  Critics  of  the 
 television  industry  warn  that  "digital  TV  will  give  broadcasters 
 free  reign  to  make  more  money  and  ignore  their  public  service 
 obligations  to  the  public."  ' 


 l  Tim  Jones,  Panel  on  TV  Standards  Shuns  New  Regulations,  Chicago  Tribune  1  (Nov.  6,  1998),  1998  WL  2913733. 
 3 
 -  -..  .__._._  I_  I_ 
456
 There  are  a  couple  of  areas  that  I  would  like  to 
 specifically  comment  on-  political  discourse  and  educational 


 programming.  The  "Introduction"  to  the  Notice  of  Inquiry  stated 
 it  best:  "Television  is  the  primary  source  of  news  and 
 information  to  Americans,  and  provides  hours  of  entertainment 
 every  week.  In  particular,  children  spend  far  more  time  watching 
 television  that  [sic]  they  spend  with  any  other  type  of  media. 
 Those  who  broadcast  television  programming  thus  have  a 
 significant  impact  on  society." 
 With  the  additional  temptation  that  digital  television 
 brings  to  watch  a  movie  or  a  rerun  of  a  soap  opera  instead  of  a 
 political  debate  or  community  service  message,  the  voting  public 
 will  be  even  more  ignorant  than  what  it  is  under  the  analog 
 format:  "Better  television  doesn't  mean  prettier  pictures  or 
 better  sound,  it  means  more  access  to  educational  programming  for 
 children  and  adults,  programming  on  local  issues  and  interactive 
 data  services  for  schools.  N2  I  understand  that  people  can  not  be 
 forced  to  watch  political  debates  or  educational  shows  or  the 
 like,  but  the  opportunity  should  still  be  present.  For  example, 
 I  do  not  get  the  opportunity  to  watch  much  television,  but  when  I 


 do,  I  can  not  recall  seeing  much  programming  that  could  be 
 classified  as  meaningful  public  interest  programming.  Instead,  I 


 see  soap  operas,  movies,  wrestling,  music  videos,  Jerry  Springer, 
457
 or  professional  sports.  I  understand  that  most  of  these  programs 
 have  some  kind  of  value  if  nothing  but  for  entertainment.  I  also 


 am  not  advocating  for  television  that  airs  nothing  but  political 
 debates  or  congressional  hearings.  What  I  am  saying  is  that  the 
 public  would  be  better  served  if  it  was  more  informed,  or  at 
 least  had  the  opportunity  to  be  more  informed,  about  the  issues 
 and  decisions  that  will  eventually  affect  their  lives  in  the 
 future.  One  of  the  main  reasons  I  do  not  vote  as  much  as  I 
 should  is  that  I  simply  do  not  know  enough  about  the  candidates 
 or  what  they  stand  for.  To  me,  voting  under  these  conditions 
 would  be  like  flipping  a  coin.  This  is  not  informed 
 decisionmaking. 
 Thus,  in  response  to  your  goal  of  initiating  a  public  debate 
 on  whether  broadcasters'  public  interest  obligations  should  be 
 refined  to  promote  democracy  and  better  educate  the  voting 
 public,  I  must  emphatically  reply  "yes."  Society  could  only 
 benefit  with  the  increased  political  discourse  by  being  better 
 decisionmakers.  Therefore,  I  must  agree  with  numerous  members  of 
 Congress  that  this  Commission  should  propose  regulations 
 providing  for  free  or,  at  the  very  least,  reduced  rate  time  for 
 political  candidates. 
 Another  particular  area  is  educational  programming  for 
 children.  The  importance  of  this  subject  can  not  be  overstated. 


 '  Robin  Brown,  Hollywood  Reporter  64(  l)  (Jan.  15,  1999)  (Statement  of  Larry  Kirkman,  executive  director  of  the  Benton 
458
 No  means  of  communication  is  as  ubiquitous  or  effective  an 
 educator  as  television.  Thus,  the  increased  capability  of  digital 
 television  should  be  used  to  provide  more  time  to  educational 
 programming.  The  minimum  time  set  aside  each  week  for 
 educational  programming  under  the  present  regulatory  scheme-  three 
 hours  per  week-  should  be  increased.  In  addition,  the  amount  of 
 advertisement  that  takes  place  during  these  times  should  be 
 limited.  This  time  should  not  be  exploited  by  broadcasters  as  an 
 additional  source  of  revenue.  It  is  especially  important  during 
 this  time  that  broadcasters  make  a  conscious  effort  to  stay 
 focused  on  their  public  interest  obligations. 
 EXISTING  OR  NEW  PUBLIC  INTEREST  OBLIGATIONS  SHOULD  BE  ENFORCED  IN 
 A  MENIINGE'UL  WAY 


 III  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  a11.3 


 Basic  assumptions  underlying  television  broadcasting  are 
 that  the  airwaves  are  public  property  and  a  scarce  commodity. 
 That  being  so,  under  the  Communications  Act  of  1934  and 
 subsequent  legislation,  the  government  allows  broadcasters  to  use 
 the  spectrum  for  free  so  long  as  they  serve  "the  public  interest, 
 convenience  and  necessity"-  i.  e.,  quid  pro  quo.  However,  it  is  no 


 Foundation),  1999  WL  9555950. 


 6 
 -.  _.  _-,_  _  .  --  ."  --  I.  ._..  _  -I".-_--".  l_  -  -1- 
459
 secret  that  regulators  have  only  vaguely  defined  these 
 obligations,  and  broadcasters  have  met  their  requirements  in  a 
 variety  of,  and  sometimes  disingenuous,  ways:  "FCC  regulation  of 


 broadcasting  [is]  a  charade-  a  wrestling  match  full  of  fake  grunts 
 and  groans  but  signifying  nothing."  4  For  example,  I  do  not 


 believe  shows  like  "The  Jetsons"  and  "Wheel  of  Fortune  2000"  are 
 quite  what  we  had  in  mind  when  mandatory  children's  programming 
 was  imposed  upon  broadcasters.  Similarly,  I  do  not  think  that 
 "The  Little  Mermaid"  meets  the  definition  of  educational 
 programming  because  it  teaches  girls  how  to  be  leaders.  Yet 
 these  are  exactly  the  types  of  arguments  that  broadcasters  are 
 advancing.  Another  example  is  that  broadcasters  are  "expected" 
 to  air  public-  service  announcements.  However,  there  are  no 
 guidelines  that  outline  how  many  of  these  announcements 
 broadcasters  are  to  air  or  how  often. 
 Once  it  has  been  established,  and  it  has,  that  the 
 television  spectrum  is  public  property  and  that  broadcasters  use 
 it  for  free  in  exchange  for  serving  "the  public  interest, 
 convenience  and  necessity,"  public  interest  programming  should 
 actually  mean  something.  In  short,  the  public  should  get  the 
 "benefit  of  its  bargain."  The  Gore  Commission  Report  noted  that 


 [  t]  he  foundation  of  the  American  system  of  broadcasting  is  that 


 3  Statement  of  Commissioner  Ervin  S.  Duggan,  8  FCC  Rec.  at  5340  (1993). 
 4  Henry  Geller,  Public  Interest  Regulation  in  the  Digital  TV  Era,  16  Cardozo  Arts  &  Ent.  L.  J.  341,  344  (1998). 


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