6

intervention, but it has not increased the discussion of public issues. On one hand, the most visible aspect of the fairness doctrine has been the requirement to provide air time for contrasting points of view. In the 1973-74 fiscal year, the FCC received about 4,300 complaints that licensees had not been 19

fair. On the other hand, for that same period of time, the commission staff claimed to have received no allegations that broadcasters did not provide public issues programming to begin with—the first requirement of the fairness 20

doctrine." In other words, broadcasters risked more when they provided public issues discussions than when they did not. That is hardly likely to stimulate more of that kind of programming.

In addition, the FCC has demonstrated dangerous tendencies toward interfering directly in broadcast program selection. In the name of the first half of the fairness doctrine, the FCC has contended that it can decide when 21 stations ought to program particular subject material." The commission also has demonstrated a willingness to thoroughly examine the content of controversial

22

programs. Thus far, the commission has carefully limited its actions in both

of these areas, but the potential of political influence on the commission makes 23 such policies highly suspect."

However, my belief in the need for a change in the FCC's regulatory policy does not stem alone from concerns about First Amendment values or the lack of enforcement of statutory mandates. The current approach to program regulation also has been very expensive. The American taxpayer has financed a huge bureaucracy, most of it preoccupied with the license renewal and complaint processes. Citizen groups have wasted thousands of dollars financing futile license challenges-futile because of the inexperience of the groups and because of the attitudes of the FCC commissioners. Finally, broadcasters have been forced to spend substantial amounts of money defending themselves. They have

7

had to hire lawyers who could interpret FCC policies and practices. And they have had to hire personel just to complete the seemingly endless amounts of paperwork required by the commission.

This money and paperwork accomplishes very little, and therefore it is quite appropriate—after 51 years—that we reexamine the FCC's policies. Hopefully, Congress, in the next few years, will make some changes.

FOOTNOTES

william F. Chamberlin, "A History of Public Issues Programming Regulation by the Federal Communications Commission: More Rhetoric Than Action," unpublished Ph.D. dissertation (University of Washington, 1977), p. 23-27. See also U.S., Congress, Senate, Senator Dill Speaking for Radio Regulation, H.R. 9971, 69th Cong., 2d sess., Feb. 18, 1927, Congressional Record, LXVIII, p. 4111 and U.S., Congress, House, Committee on the Merchant Marine and Fisheries, Jurisdiction of Radio Commission, Hearings, before the committee, on H.R. 8825, 70th Cong., 1st sess., 1928, p. 144.

2Sen. Clarence C. Dill, interview, Spokane, Wash., March 7, 1975. See also

Louis G. Caldwell, "The Standard of 'Public Interest, Convenience or Necessity'— Quasi-Legislative Duties of the Federal Radio Commission, and its Quasi-Judicial Duties as Applied to Non-Broadcasting Stations," Catholic University of America Radio Law Bulletin of the School of Law, XVII (Aug., 1931), p. 31.

3U.S., Federal Communications Commission, Application for Renewal of Broadcast Station License; Form 303 (1974) (Washington, D.C.: Government Printing Office, 1974), secs. IV-A, p. ii; IV-B, p. ii.

See Administrative Procedure Act, U.S. Code, Vol. I, secs. 551, 553, 558 (1970).
Mayflower Broadcasting Corp., 8 F.C.C. 333 (1941).

Applicability of the Fairness Doctrine to Cigarette Advertising, 9 F.C.C. 2d

921 (1967).

7For discussions of the advantages and disadvantages of rule-making, see Cornelius J. Peck, "The Atrophied Rule Making Powers of the National Labor Relations Board," Yale Law Journal, LXX (April, 1961), 729-61; David Shapiro, "The Choice of Pule Making or Adjudication in the Development of Administrative Policy," Harvard Law Review, LXXVIII (March, 1965), pp. 921-72; and Glen O. Robinson, "The Making of Administrative Policy: Another Look at Rule-Making and Adjudication Procedure Reform, University of Pennsylvania Law Review, CXVIII (1970), 485–539.

8Public Communications, Inc., 50 F.C.C. 2d 395, 400 (1974).

American Broadcasting Cos., Inc., 56 F.C.C. 2d 275, 283–284 (1975).

10 See Chamberlin, pp. 120-128 and Barry Cole and Mal Oettinger, Reluctant Regulators (Reading, Mass.: Addison-Wesley Publishing Co., 1978), p. 134. 11See the Titanic Corp., 31 F.C.C. 2d 81 (1971).

13s

'See John Abel, Charles Clift III, and Frederic A. Weiss, "Station License Renovations and Denials of Renewal, 1934-1969," Journal of Broadcasting, XIV (Fall 1970), pp. 411-21. See also Brandywine-Main Line Radio, Inc., 24 F.C.C. 2d 18 (1970), aff'd, 743 F. 2d 16 (D.C. Cir. 1972), cert. denied, 412 U.S. 922 (1973); Alabama Educational Television Commission, 50 F.C.C. 2d 461 (1975); and Star Stations of Indiana, Inc., 51 F.C.C. 2d 95 (1975).

15

Eugene J. Roth, 12 F.C.C. 102, 106 (1947).

16. Herman C. Hall, 11 F.C.C. 2d 344 (1968).

17Five of these stations were satellites, but two were KHON-TV of Honolulu and VIR of Charlottesville, Virginia.

18.

See, Bill F. Chamberlin, "Public Affairs Programming Regulation-What Has it Given Us?", accepted as an award winner, 1978 BEA annual meeting, Las Vegas, Nevada. Accepted for publication by Journal of Broadcasting.

19 Testimony by former FCC Chairman Richard E. Wiley in U.S., Congress, Senate, Committee on Commerce, Fairness Doctrine, Hearings before the Subcommittee on Communications on S. 2, S. 608, and S. 1178, 94th Cong., 1st sess., 1975, p. 50.

20.

Milton O. Gross, interview, Washington, D.C., Feb. 5, 1976 (at the time of the interview Gross was the chief of the fairness-political broadcasting branch of the Complaints and Compliance Division).

21 See Rep. Patsy Mink, 59 F.C.C. 2d 987 (1976).

22 See Complaint Concerning the CBS Program "The Selling of the Pentagon," 30 F.C.C. 2d 150 (1971), Complaints Covering CBS Program "Hunger in America," 20 F.C.C. 2d 143 (1969), Inquiry into WBB-TV's Broadcast on November 1 and 2, 1967, of a Report on a Marijuana Party, 18 F.C.C. 2d 124 (1969); and Accuracy in Media, Inc. 40 F.C.C. 2d 958, aff'd on reconsideration, 44 F.C.C. 2d 1027 (1973).

23. of course, the commissioners are appointed by the President of the United States. Political considerations by the FCC have not often been obvious. However, in the 1950s, at least two of the commissioners were allies of Sen. Joseph McCarthy of Wisconsin and harassed at least one Democratic activist who also happened to be a broadcast licensee. See Erik Barnouw, Tube of Plenty; The Evolution of American Television (New York: Oxford University Press, 1975), pp. 152-53. See also David E. Rosenbaum, "Threats by Nixon Reported on Tape Heard by Inquiry," New York Times (NYT), May 16, 1974, pp. 1, 26; Philip Shabecoff, "White House Defends Deletion of Threat," NYT, May 17, 1974, p. 24; James M. Naughton, "Impeachment Panel Hears Evidence on Hush Money," NYT, May 17, 1974, p. 1; John J. O'Conner, "No Back Talk from the Press, Please," NYT, Nov. 11, 1973, sec II, p. 17; Les Brown, "The Administration vs. TV: How the Tide Turned," NYT, Dec. 17, 1973, p. 75; and "Memos on the Media," Washington Post, Dec. 3, 1973, p. A24.

Copyright by Bill F. Chamberlin.

Mr. VAN DEERLIN. I thank you for being with us for this testimony.

STATEMENT OF NOLAN A. BOWIE

Mr. BowIE. Good afternoon. As you know, I am executive director of Citizens Communications Center, which is a nonprofit, foundation funded, public interest law firm specializing in communications law and policy. We represent citizen consumers before the FCC and the Federal courts in efforts to make the electronic media more responsible and more responsive.

I had an opportunity to read the testimony given by former FCC Commissioner Nicholas Johnson, and wish to incorporate that, so I won't have to repeat some of the things he said about radio.

I would like to respond to the questions in the order in which they were given.

The first question is, what costs are imposed upon, and what benefits flow to, both consumers and TV broadcasters under the current regulatory scheme?

As far as cost imposed upon TV broadcasters, I would state that the opportunity cost includes the expense to purchase a facility, that is, if one is available and affordable; and they also involve nominal cost imposed by the public interest standard which includes time, money and personnel in order to maintain the facility, to keep logs, to ascertain community problems, to respond to such problems with programing, to provide the barest minimum of socially responsible programing and public service, to inform the citizens within the community of service and not to discriminate in employment practices.

As far as the benefits which flow from that, the chief benefit to the TV broadcaster under the current regulatory scheme is the exclusive right and opportunity to operate and use a public re source-the public-owned airwaves-persuade, to influence, and to make enormous profits.

The FCC just yesterday reported total net TV broadcast revenues amounted to $3.5 billion in calendar year 1978, up 15.1 percent from 1977, profits before Federal income tax were $560 million.

The net broadcast revenues of the 15 stations owned and operated by the TV networks were $585 million, up 16.1 percent from 1977. Profits before Federal income taxes were $186.3 million, nearly 25 percent above the previous year's total.

In a nutshell, TV broadcasters have the ability to control others while making money. This translates to power, and an expectation of renewal of the license for the limited cost of acting as public trustee.

As far as costs imposed upon consumers under the current regulatory scheme, consumers pay for TV broadcasting both directly and indirectly; they pay for the cost of regulation through Federal taxes; and they pay for programing by the add-on costs of products and services advertised on TV.

Commercial television in the United States today is really a byproduct of advertising. The individual viewer has little choice in programing, since economic considerations force networks and stations to aim for the largest possible audience. The result: lowest common denominator programing.