On December 18, 1998, the final report of the bi-partisan Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters (PIAC) was sent to the President, Congress, and the Federal Communications Commission (FCC). Five years later, "unfinished business" would be the term that best describes action on the committee's recommendations.
The recent FCC decision opening the door to further media consolidation, and the pending ruling on "cable must-carry," makes resolution of the matter all the more critical. The FCC must finally establish how the continued transition to digital television will benefit the American public. They are not lacking a road map.
Background: the DTV Imperative
In opening most Sunday newspapers, readers are inundated with ads for digital television (DTV) sets. And the DTV sets, especially the upper end, high-definition, or HDTV, sets, do live up to their promise of incredible, crystal clear image and sound -- albeit at a cost.
But other than sharper images on television sets, DTV also enables your local television station to broadcast multiple, over-the-air digital channels, using the same airwaves required for one analog channel. For example, many local Public Broadcasting Stations (PBS) have the capacity to "multi-cast" a digital PBS-kids channel, a PBS-state and local public affairs channel, a PBS business channel, or a PBS-music channel.
In the U.K., Freeview, a rapidly expanding and commercial digital service provides up to 30 quality, DTV channels and over 20 digital radio stations, plus a new whole world of interactive services -- all free and available over the air. The Freeview models depends on the expanded content to provide consumers with the needed incentive to purchase digital converters for their existing analog TVs or buy new digital televisions. It is a model that Public TV officials in the U.S. are currently discussing with potential commercial partners.
In the U.S., the DTV broadcast transition is not moving as quickly as in the U.K., but with FCC clarification on channel allocation, tuner requirements, "cable plug-&-play," broadcast "flag" and other issues, the pace is quickening. The FCC is requiring that all of the nation's broadcast stations transmit their signals in digital format by the end of 2006, arguing that digital technology is a more efficient use of spectrum than the current analog system. Until the transition to DTV is completed, TV stations are required to broadcast on both digital and analog channels. As of May 2003, more than 1,000 stations were on the air with DTV signals, and every major TV market was served by at least one DTV station.
While many of the technical hurdles to the DTV transition had been worked out by late 2003, a more fundamental issue looms. FCC Commissioner Michael Copps stated in a 2002 speech that "amidst all the many conversations about the tuners and boxes and antennas and signal replication and all the rest, there exists a great big digital gap: how is digital television going to serve the public," adding "It's another great debate that we're not having."
Digital Broadcasting and Public Interest Obligations
The 1996 Telecommunications Act granted broadcasters billions of dollars worth of the American public's airwaves, or spectrum, free of charge. But, in exchange for the rights to both this analog and digital spectrum, broadcasters pledge to serve "the public interest," a concept that appears over a hundred times in the act. Many Americans do not realize that the airwaves belong to them; it is public property like national forests. Unfortunately, too many broadcasters have paid little more than lip service to their public interest obligations, and the FCC has failed to hold them accountable.
The transition to digital broadcast television opened up a new array of opportunities to better serve the public. PIAC's final report, Charting the Digital Broadcasting Future, contained recommendations on the public interest obligations that digital television broadcasters could assume.
The U.S. Senate Commerce Committee held hearings in July 2003 to address, according to Chairman John McCain (R-Az.), charges by critics, including several recent and former FCC commissioners, "that the 'public interest' mandate is vague, providing neither guidance nor constraint on the agency's regulatory and licensing actions." Senator McCain added in his opening remarks that the hearing was meant to, in part, consider if "Congress should use other means to achieve these goals, such as putting 'teeth' in the public interest standard." FCC Commissioner Copps, following McCain, argued: "If we are going to take down the structural bars to media consolidation, then we'd better try to put some vitality back into the public interest."
Most recently, U.S. broadcasters - who now benefit from "must-carry" rules requiring cable companies to carry their local analog signal - have urged the FCC to require that cable companies also carry their additional DTV channels. The cable companies balked. The FCC is caught in the middle. The question of how the public will benefit is still unanswered. FCC Commissioners Copps and Jonathan Adelstein, and others, have been vocal in arguing that before making any determination about digital multicasting must-carry, the "public interest" issue must be addressed.
The Roadmap: Update on PIAC Recommendations
Unfortunately, over the last five years, many ideas have been explored and proposals floated but little FCC action taken on the PIAC recommendations, which called for:
Improving Disclosure of Broadcaster, Public Interest Activities
Effective self-regulation, PIAC concluded, would require public information about what a local broadcaster is doing. PIAC recommended creating a "Public Interest Programming And Community Service Certification Form."
Based in part on this recommendation, the FCC began a Notice of Proposed Rulemaking (NPMM) in 2000 proposing standardization of disclosure and requiring broadcasters to complete a form outlining how they meet their obligations to serve the public interest. It was proposed that this form be completed on a quarterly basis, replacing the requirement for a station to maintain an issues/program list in a public file. The rules have never been put in place.
FCC Commissioner Copps stated in his Senate Commerce Committee testimony that he would be asking his FCC colleagues to consider implementing an "effective license renewal process," under which the FCC would abandon the current post-card license renewal system and once again consider, as part of the process, the manner in which a station has served the public interest.
Copps also suggested "that the public interest would profit immeasurably with some meaningful, but user-friendly, successor to the old ascertainment process. As media conglomerates grow ever bigger and control moves further away from the local community, doesn't it make sense to require, as a condition of renewal or new acquisitions, that the owners come to town and visit with their listeners and viewers to learn about the problems, needs, and issues facing the local community, and understand what the people there really want to see and hear in their programming?"
Industry Adopting a New, Voluntary Code of Conduct
PIAC's recommendations were based on an assumption that most broadcasters were committed to fulfilling their public interest obligations. Three decades ago, the National Association of Broadcasters (NAB) adopted a "Code of Conduct," and recognized those stations that adhered to it. The code was abandoned in 1982.
PIAC recommended the adoption of an updated code reflecting the promise of digital broadcasting. NAB officials have asserted that its very general "Statement of Principles," adopted in June 1990 and reaffirmed in 1992, are sufficient. In late 2000, Capitol Broadcasting CEO James Goodmon, a PIAC member, renewed the call for a new code, stating that if broadcasters wanted must-carry for DTV signals over cable and satellite systems, they would need to show "a commitment to the public interest."
Establishing Minimum Public Interest Requirements
PIAC called on the FCC to adopt a set of minimum public interest requirements for digital television broadcasters covering such topics as community outreach, public service announcements, public affairs programming, and closed captioning.
In a Notice of Inquiry (NOI) adopted in late 1999, the FCC asked for public comment on whether or not it should establish these requirements. Specific questions explored included: would such requirements make the license renewal process more efficient by spelling out the public interest standard? How would the requirements be defined? What additional costs, if any, might they impose? Were there sufficient marketplace incentives to ensure the provision of such public interest programming?
A full set of minimum public interest obligations has not yet been adopted by the FCC.
Securing Public Broadcasting's Future
PIAC called on Congress to create a trust fund to ensure enhanced and permanent funding for public broadcasting to help it fulfill its potential in the digital television environment and remove it from the vicissitudes of the political process. This has not taken place.
But, recognizing the importance of "must carry," one compromise solution being currently advanced by public TV supporters is a request that the FCC grant special digital carriage status to public broadcasting, arguing that they have by federal law a special mission and status and represent the last bastion of locally controlled, free-over-the-air media. This would help public television be more competitive by strengthening the cable access to its diverse and local community programming. Such a limited new "must carry rule" would allow public broadcasting to lead the way in developing new DTV programming services that could be adopted by commercial television later, once its success is proven.
Improving Education Through Digital Broadcasting
PIAC suggested that when the DTV transition is complete and spectrum now used for analog broadcasting is returned to the government, Congress should reserve the equivalent of 6 MHz of spectrum for each viewing community in order to establish channels devoted specifically to noncommercial educational programming. PIAC also called on broadcasters that begin datacasting to also transmit information on behalf of local schools, libraries, community-based nonprofit organizations, local governments and public safety institutions. The Benton foundation has filed comments with the New America Foundation and others suggesting new models of spectrum usage to benefit the public.
Related to this recommendation, The Digital Opportunity Trust Fund concept was developed and advanced by Newton Minow and Larry Grossman, and designed to create resources for new content that leverages the power of digital technologies (including DTV) for education, lifelong learning, civic and cultural purposes. The proposal calls for allocating billions of dollars from spectrum auctions to create such a trust fund. Several bills have been introduced but not passed in Congress to create the trust. Finding the spectrum to auction, given the needs of the military and broadcasters' slow march to digital and the current federal budget deficits, makes creating the trust an uphill battle. But proponents of the idea remind people that two other of America's most significant investments in education -- the Land Grant College Act of the Lincoln Administration and the G.I. Bill -- were passed during times of war.
Improving the Quality of Political Discourse
PIAC argued that if Congress undertakes comprehensive campaign finance reform, broadcasters should commit firmly to do their part to reform the role of television in campaigns, including repeal of the "lowest unit rate" requirement in exchange for free airtime, a broadcast bank to distribute money or vouchers for airtime, and shorter time periods of selling political airtime, among other changes. In addition, PIAC called on the broadcasting industry to voluntarily provide 5 minutes each night for candidate-centered discourse in the 30 days before an election. Such a law has been subsequently passed by Congress and upheld by the U.S. Supreme Court.
But, at the July Senate Commerce Committee hearing, Dean Kaplan presented data on the disturbing dearth of coverage of political campaigns by broadcasters. Senator McCain announced that he would be introducing a bill that would: establish minimum requirements for issue-centered or candidate-centered programming by broadcasters, provide candidates and national committees of political parties with vouchers that they may use for political advertisements. McCain argued "the purpose of the legislation is to increase the flow of political information in broadcast media and to reduce the cost to candidates of reaching voters." He concluded, "Our democracy is stronger when a candidate's success is achieved by ideas, and not by dollars."
Enhancing Disaster Warnings in the Digital Age
PIAC called on broadcasters to work with appropriate emergency communications specialists and manufacturers to determine the most effective means to transmit disaster warning information, stating that the means chosen should be minimally intrusive on bandwidth and not result in undue additional burdens or costs on broadcasters. PIAC also suggested that appropriate regulatory authorities work with manufacturers of DTV sets to make sure that they are modified to handle these kinds of transmissions.
In the FCC's 1999 NOI on digital television, the Commission noted that one of broadcasters' fundamental public interest obligations is to warn viewers about impending disasters and keep them updated. The FCC inquired about the unique capabilities afforded by digital technology to deliver disaster-related information and the role the Commission should play to encourage broadcasters to deploy such technology to deliver enhanced disaster information?
In a post 9/11 world, the FCC should deliver some answers.
Expanding Diversity in Broadcasting
PIAC noted that diversity is an important value in broadcasting, whether it is in programming, political discourse, hiring, promotion, or business opportunities within the industry. The Advisory Committee recommended that broadcasters seize the opportunities inherent in digital television technology to substantially enhance the diversity available in the television marketplace, noting that serving diverse interests within a community is both good business and good public policy.
In the FCC's recent media ownership decision it promised to initiate a proceeding to increase the participation of minorities and women in our media. FCC Commissioner Copps noted in his Senate Commerce Committee testimony that in reaching the media ownership decision, "the Commission did not even attempt to understand what further consolidation means in terms of providing Hispanic Americans and African Americans and Asian-Pacific Americans and Native Americans and women and other groups the kinds of programs and access and viewpoint diversity and ownership and career opportunities and even advertising information about products and services that they need."
On the programming front, the Center for the Creative Community (CCC) and others have argued that consolidation of network and cable television ownership has harmed free expression, quality, and creativity in television. In a study specifically conducted for the FCC's media ownership proceeding, independent producers and network executives expressed concern over the increasing network monopolization of program production. The CCC, in particular, has called on the FCC to require that networks not exclude independently-owned programming from their primetime schedules and proposed a new, flexible rule requiring a certain percentage of independently-produced programming on the networks primetime schedules.
Conclusion
Congress made it clear that the public interest obligations of broadcasters would apply in the new digital world. Five years ago, the bi-partisan, Presidential Advisory Committee on the Public Interest Obligations of Digital Television Broadcast helped outline a vision of how that promise could be realized.
But, the Federal Communications Commission has not followed up on its responsibility to update its rules accordingly. With the FCC's recent conclusion of a proceeding that is likely to - pending judicial and Congressional intervention - result in the relaxation of local and national media ownership rules, broadcasters and other media groups will have to potential to own even more outlets within local communities and reach larger national audiences. In the face of this increasing consolidation, the public interest obligations become more important than ever to advance FCC goals of localism, competition, and diversity in media.
We urge FCC Chairman Michael Powell and the commission to complete the necessary rulemaking on the public interest obligations of digital broadcasters before making any determination about digital multicasting must-carry or any other action on DTV.
Several old proceedings on the issue have been dusted off and put out for further comment. But it is not time for further proposals and inquiry, it is time for action. It is imperative that the American public know that digital TV will serve their interests and broadcasters know and understand the rules of the road.
Related Websites
FCC DTV website
http://www.fcc.gov/dtv
Benton Foundation PIAC legacy site
http://www.benton.org/PIAC
Benton Foundation Media Ownership Issue Page
http://www.benton.org/initiatives/ownership.html
U.S. Senate Commerce Committee Hearing on the Public Interest, July 2003
http://www.senate.gov/~commerce/hearings/witnesslist.cfm?id=874
New America Foundation Spectrum Policy Program
http://www.newamerica.net/index.cfm?pg=program&ProgID=3
Digital Promise
http://www.digitalpromise.org
Center for the Creative Community
http://www.creativecommunity.us
