In our recent summary of the Commission’s order on Digital Radio, we wrote about the Further Notice of Proposed Rulemaking that raised specific proposals to adopt new rules regulating the public interest obligations of radio broadcasters.  These proposals included the possible requirements for a standardized disclosure form for a stations public service programs, limits on a station’s ability to originate programming from locations other than the station’s main studio, and possible limitations on the current ability of stations to operate without manned studios.  A recent Commission decision reminds television broadcasters that there is another proceeding – one six years old – that proposes many of the same restrictions on television broadcasters.  Does the recent mention of this proceeding that so closely parallels the recent radio proposals indicate that some action may soon be forthcoming on the TV proceeding?

The TV proceeding was mentioned in an FCC decision released last week rejecting Petitions to Deny that had been filed against a number of license renewal applications for television stations in Wisconsin and Illinois alleging that the stations had not adequately served the public interest through the broadcast of issue responsive programming, especially programming covering election issues.  In rejecting those Petitions, the FCC stated that its ability to second guess the editorial discretion of a licensee was limited by the First Amendment and by the Communications Act’s prohibition against broadcast censorship.  In this case, the FCC said that the showing made by the Petitioner was not sufficient to demonstrate that the stations had not served the public interest of their communities.  However, the decision noted that the Commission was considering quantitative standards for evaluating the public service of broadcast licensees, citing to the long-pending rulemaking proceeding, and implying that the evaluation of these licensees might have been at least somewhat different had these proposed standards been in place.

The pending proceeding to set more detailed public interest standards for TV broadcasters has origins very similar to the one now pending for radio, growing out of the FCC proceeding on digital television and the permission given to TV broadcasters to operate multiple digital programming streams.  In adopting those proposals, the FCC decided that it had to consider what public interest standards should apply to these multiple streams, and asked for public comment on those standards, and whether they should apply to analog programming as well.  The text of the Commission’s proposal,  which can be found here, raises a number of issues including the following:

  • Whether to adopt a single standardized form on which broadcasters would report on their programming responsive to the public interest
  • What kind of information should be required on this form, tentatively concluding that reporting should be required on the percentages of specific types of programming (e.g. news and public affairs) provided by stations and on the amount of closed captioned and video description programming. The notice also asked what other information might be helpful in defining the service provided by stations (e.g. information about the specific efforts to address local political issues)
  • Should broadcasters be required to report on their efforts to identify the issues of importance to their community?
  • Whether broadcasters should be obligated to report on activities (e.g. fundraisers) that they undertake for the betterment of the community in addition to their over-the-air programming
  • Whether the broadcaster’s public inspection file should be maintained on station websites

Many of these proposals echo those recently made by Commissioner Copps in his Op-Ed piece in the New York Times, which we commented on here.  Bringing back specific quantification of the types of programming offered by broadcasters and reporting on how they determine what the public is concerned about would bring broadcasters back to the state of the FCC rules as they existed until the middle of the 1980s.  Then, the Commission concluded that these rules were unnecessary, as the marketplace would insure that broadcasters kept their community in mind in making programming decisions.  Now, 20 years later, when marketplace competition has markedly increased, do broadcasters really need to be told how to serve their communities?  We’ll see if the Commission thinks that they do when it finally resolves this proceeding.