This statement summarizes our response to the Report of the Advisory Committee with regard to the public interest obligations that should be applicable to over-the-air broadcasters as the nation's television system shifts from an analog to a digital transmission format. We applaud the Advisory Committee's conscientious efforts to achieve a consensus and agree with a number of the concepts set forth in the Report. We regret, however, that it appears that a majority of Advisory Committee members are not prepared to embrace a public interest model for the coming digital age which appropriately reflects (1) the tremendous commitments to localism and public service programming long demonstrated by the industry, and (2) the marketplace incentives which will ensure an ample supply of non-entertainment programming in the future.
Section II of the Advisory Committee Report espouses historical and legal notions from the history of television industry regulation that will have very limited currency in the digital age. We see no scarcity in electronic outlets for free expression now or in the future and thus take exception to this section.
Having worked diligently and participated faithfully in the work of the Advisory Committee, we are disappointed that we must disagree with many of the recommendations. We continue to believe everyone's purposes would be better served if the Advisory Committee had taken a more general approach such as the one set forth in our statement. The digital world is evolving at a stunning pace and no one can predict with certainty today how public interest obligations -- or most other aspects of digital television -- will play out. We believe quality journalism and public service will carry the day with viewers no matter what the technologies or delivery systems of the future might be.
Additional Public Interest Programming Expectations for Digital Broadcasters Who Choose to Multiplex
The Advisory Committee's report addresses "whether the public interest requires a different formula" for television broadcasters who decide to use their DTV allotments for multiple channels of commercial programming. The Report recommends that, after a 2 year moratorium for experimentation, Congress or the FCC should require the payment of fees or "inkind contributions" (e.g., dedication of one of the channels to public interest purposes, or provision of free time to political parties) by broadcasters who realize a substantial increase in revenue from multiplexing. With this fee or inkind arrangement in place, statutory or other public interest obligations would attach only to the primary channel.
We support the notion of a moratorium to allow broadcasters to explore the many possibilities offered by DTV but believe it is inappropriate at this point to contemplate the imposition of fees or the extraction of specific public interest concessions from broadcasters based only upon speculative assumptions about the possible use of DTV channels. Television broadcasters will have strong incentives to continue to provide news and other nonentertainment programming to meet the needs and interests of their audiences as the transition to DTV progresses. At this early stage in the DTV implementation process, however, it is impossible to determine precisely the manner in which the transition to digital broadcasting will unfold, or the economic impact of that transition on television broadcasters and the marketplace in which they compete. That transition will be achieved most rapidly and efficiently if broadcasters are free to experiment with HDTV, multiplexed SDTV, and other variations of digital transmission and to develop innovative programming and other services to take full advantage of the enormous potential of digital technology. The transition to DTV will be expensive and difficult for broadcasters. Congress and the FCC should proceed with caution and avoid the imposition of any additional burdensome regulatory requirements which may stifle experimentation and slow the implementation of digital technology.
In these circumstances, existing public interest obligations should be maintained but certainly should not be increased for broadcasters who determine to use their DTV allotments to provide a single channel of high-definition television service. Those broadcasters will be providing a one-for-one replacement of existing NTSC service, which carries with it significant trusteeship obligations already tailored to that service. Similarly, because channels devoted to ancillary and supplementary services will be subject to fees under existing law, a broadcaster's decision to offer such services in addition to a single channel of DTV programming should not trigger any additional public interest obligations.
Television broadcasters who choose to transmit more than three channels of digital programming may reasonably be expected to devote some additional time to public interest programming. However, the imposition of fees or any sort of specific quantitative guidelines for additional public interest programming contributions are unnecessary and inappropriate. Accordingly, broadcasters choosing to multiplex their DTV offerings should be given the flexibility to determine the appropriate level and scheduling of such additional public interest programming and to decide whether that programming will be aired on one or more of their digital video channels. The community will be the judge of the sufficiency of these multiplexed program offerings. As the transition to DTV unfolds, broadcasters will learn from the reaction of the marketplace whether they have accurately gauged the needs and interests of their local audiences.
Retention by Public Television Stations of a Second Channel in Each Market to Be Devoted Primarily to Educational Programming
We strongly support the Advisory Committee's recommendation that, in each market, a second transition channel be retained permanently to be used for additional educational, instructional, and public interest programming by noncommercial TV stations. In this way, the availability of such programming can be expanded without displacing the programming currently available on PBS or commercial TV stations.
We also support the suggestion that the existing local public television station (or stations) be given the first opportunity to operate the additional educational DTV channel. We are opposed, however, to the Advisory Committee's suggestion that the FCC would have the power to approve or disapprove a plan for programming the station or for involving the local community in the station's operations; such additional regulatory oversight is unnecessary.
We also agree with the Advisory Committee's suggestion that the fees charged commercial broadcasters for ancillary and supplementary services can be used as one source of funding for the program services on these second channels. Further, the Corporation for Public Broadcasting (CPB) should continue to act as the umbrella organization for allocating funds to local noncommercial stations. Reliance on CPB to perform that function would also avoid the need for establishment of any new bureaucracy. Additionally, as the Advisory Committee suggests, Congress may wish to consider devoting a portion of the proceeds of the auctions of returned analog television channels to the support of additional noncommercial programming to serve local educational and informational needs.
We share the belief of other members of the Advisory Committee that the availability of a second public television channel would strengthen noncommercial broadcasting and provide new opportunities for public access to the airwaves, including outlets for independent program producers and local residents and community organizations. Additional spectrum dedicated to public use could also create a permanent pipeline for political candidates to communicate with the electorate.
Reliance on Voluntary Adherence by Television Broadcasters to Broadly Shared Public Interest Principles
As the Advisory Committee's Report recognizes, for many years, the great majority of broadcasters have voluntarily adhered to generally accepted, industry-wide principles in providing public interest programming to serve their local communities. We strongly believe that continued voluntary adherence to these salutary principles, updated as may be appropriate to reflect the intentions of television broadcasters as they enter the digital age, will serve the industry and the public well.
We are prepared to commit to the following public interest principles and objectives for the DTV era:
- Renewed and systematic efforts by station licensees to identify the concerns and interests of their local communities.
- A continuing commitment to provide public interest programming responsive to those concerns and interests.
- Provision of programming (including educational programming) specifically addressed and intended to be responsive to the needs and interests of children.
- Coverage of debates and other candidate forums.
- Voluntary provision by television stations of air time for uninterrupted statements by candidates for public office, to encourage a meaningful dialogue with the electorate on the central issues of their campaigns.
- Airing of town meetings and similar open forums for discussion of local issues by area residents, officials, and community leaders.
- Continuing efforts (such as closed captioning) to utilize available technology to make the benefits of broadcast television more widely available to individuals with disabilities.
We do not believe, however, that it is appropriate for the Advisory Committee either to identify the industry group expected to develop a new code, or statement of principles or standards, or to provide models of what such standards might look like. First, the NAB and the majority of broadcasters have made clear that the implementation of a new code by the NAB is not feasible. Any suggestion that a new code is expected, that it should conform to some "model," or that, as some members suggest, the FCC might step in if the industry does not produce such a document, is inconsistent with the concept of truly voluntary self- regulation.
Mr. Crump disagrees with this language and supports a new voluntary code of conduct to replace the old NAB Code of 1952.
Minimum Public Interest Requirements
The Advisory Committee's Report suggests that "not all broadcasters will subscribe to voluntary guidelines" and that "a set of mandatory minimum public interest requirements for digital broadcasters" should be developed. Indeed, some Advisory Committee members would use the occasion of the DTV transition as an excuse to reinstate governmentally mandated programming standards, such as formal ascertainment procedures and quantitative guidelines, that were rescinded as unnecessary and ineffective.
For the reasons set forth above, we strongly oppose the imposition of such mandatory standards. The vast majority of American broadcasters have demonstrated their awareness of and responsiveness to the concerns and needs of their local communities. The marketplace, moreover, provides very substantial incentives for broadcasters to provide locally oriented news and other informational and public service programming. These incentives will only increase in the digital era, and broadcasters will need maximum flexibility to experiment and develop suitable programming and other digital services. The dawn of the digital age should not be accompanied by a return to government micromanagement of programming service.
Disclosure of Public Interest Activities by Broadcasters
To assist individual communities in assessing and understanding the public interest programming efforts of local TV stations, television broadcasters should be encouraged to disseminate more broadly information on their efforts to identify and address local concerns in their public interest programming offerings.
We do not believe that it is necessary or appropriate for the FCC to impose specific additional recordkeeping or reporting requirements. Rather, television station owners navigating the difficult and expensive transition to DTV operations will have every incentive to take appropriate steps to ensure that they identify and satisfy the needs, interests, and tastes of their audiences.
Voluntary Provision of Airtime for Coverage of Federal Election Campaigns
We are cognizant of the widespread concern with respect to the increasingly important role of television spot advertising in political campaigns and of the accompanying issues such as negative campaigning and fundraising abuse. Therefore, broadcasters should be strongly encouraged to provide airtime to candidates on a voluntary basis for more meaningful discussion of campaign issues and proposals. A number of TV station licensees already do so, and others have expressed the intention voluntarily to provide such airtime in upcoming election periods.
Broadcasters also should be encouraged to consider, on a voluntary basis, a broad range of programming and other options to help elevate political discourse. This process should not be mandated by the Federal Government; it can and should be a voluntary standard agreed to and promoted by the industry and its leading members. Thus, the Advisory Committee should not attempt to articulate or endorse any particular plan for the use of airtime for political messages. Further, as the Advisory Committee Report notes, "television is only one part of a campaign system filled with serious problems." Broadcasters can and should be expected to do their fair share to contribute to solutions to those problems.
Disaster Warnings in the Digital Age
As the Advisory Committee Report recognizes, broadcasters have always taken seriously their fundamental public interest responsibility to warn viewers about impending natural disasters and to keep them informed about disaster-related events. We join in the Advisory Committee's exhortation to broadcasters to work with emergency communications specialists and equipment manufacturers to utilize digital technology to transmit emergency-warning and related information in a manner that will be as effective as possible, with minimal intrusion on bandwidth or undue burdens on broadcasters. We also agree that regulatory authorities should coordinate with manufacturers of DTV receivers to ensure that new digital TV sets and converters are fully capable of handling such emergency transmissions.
Disability Access to Digital Programming
We agree with the Advisory Committee recommendation that broadcasters should be encouraged to explore vigorously ways to provide greater access to the disabled, including expanded closed-captioning and video description where feasible, as well as creative uses of data streaming, in ways that will not create an undue burden on broadcasters. Again, as the Advisory Committee Report suggests, the FCC and/or other regulatory authorities should work with set manufacturers to ensure compatibility and maximum utilization of available technology. Broadcasters should not be subject to specific additional requirements, beyond those already enumerated for the television industry in general, by virtue of the initiation of DTV operations.
A New Approach to Public Interest Obligations
In the final section of its Report, the Advisory Committee states that "[a]pplying existing public interest obligations to [the] variegated universe [of DTV offerings] will not be easy, and will certainly not entail a simple one-for-one exchange." We strongly agree that "flexibility to fit the different patterns that will develop and that will change over time will be increasingly important."
We do not believe that the "pay-or-play" model identified in the Advisory Committee Report offers an appropriate model for future public interest regulation. In essence, it would appear to require broadcasters either to meet governmentally mandated standards or to pay an alternative tax for use of the airwaves. We believe that this sort of approach would be inconsistent both with the tradition of public trusteeship on which broadcasting has been built and on the history of reliance, to the maximum extent possible, on the good-faith discretion of licensees to meet the needs of their audiences.
Conclusion
For the reasons set forth above, we recommend that Congress, the FCC, and the television industry proceed cautiously at this stage in the transition to digital, avoiding the imposition of any additional and onerous regulatory burdens that may stifle the rapid introduction of DTV service and the expanded programming services it will make possible. As the country moves forward with the introduction of digital television and we gain a clearer understanding of the future shape of the industry, it may then be appropriate to consider whether the adoption of any additional measures are warranted. At that point, we would expect to have a much more meaningful basis for evaluating any further steps.