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Mr. KASTENMEIER. The Chair would now like to call George J. Barco, general counsel for the Pennsylvania Cable Television Association.
Mr. Barco, you may proceed.
TESTIMONY OF GEORGE J. BARCO, GENERAL COUNSEL,
Mr. BARCO. First, may I point out here on the map what part of Pennsylvania I come from, so that you know the place from which I come.
Mr. Chairman and members of the Subcommittee on Courts, Civil Liberties and the Administration of Justice-I purposely mention that title because that is one of the reasons I'm here today because I believe that the orbit of your jurisidiction can afford us some of the relief we are seeking. Having seen you gentlemen on television in the execution of your duty, I was reinforced in my belief.
Further, Mr. Chairman, I want you to know that we have a statement here that is longer than the 5 minutes allocated to us, and we would ask that it be included in the record. I have prepared my remarks to fit within the time which has been allowed to me.
Mr. KASTENMEIER. The Chair appreciates that, Mr. Barco, and your statement and the Pennsylvania Cable Television Association policy position statement of March 1975, will be received in the record.
Mr. BARCO. Thank you, Mr. Chairman.
I am George J. Barco of Meadville, Pa. For the past 23 years I have been a part owner and president of several cable television companies, and I have served as general counsel for the past 20 years of Pennsylvania Cable Television Association. Pennsylvania is the State where commercial CATV started some 27 years ago, and where more communities and a greater percentage of the television viewing public secure reception by CATV service than in any other State.
For the past 10 years particularly, I have been concerned that the views and concepts, and, in turn, many aspects of government treatment accorded to the industry have been influenced to a great extent by a pervasive preoccupation, inside and outside the industry, with the technical and theoretical capabilities of cable television to provide broad television and communications services.
This preoccupation has been obsessive to such an extent that the financial, technological, and practical requirements for such an evolution have not been fully analyzed, or recognized, on the one hand, and, at the same time, the significance of the television reception function being provided by CATV has been discounted and the real nature of the service today confused and distorted.
The Pennsylvania position on copyright places the television reception function in clear focus and places that function in proper perspective, both with relation to the subscribers it presently serves, and with relation to the capabilities for cable to improve and equalize television reception opportunities for the public generally. The Pennsylvania position also recognizes the desirability of realizing the potential of cable television for providing increased program choices in part through microwaving of additional signals, acknowledging that this function is distinct from the television reception function, and that
providing such service may be subject to reasonable copyright payment.
It is no secret that there is a fundamental and serious division in the industry on the issue of copyright payment. The Pennsylvania position in essence represents the view of a substantial segment of the industry that is opposed in principle to the concept of across-the-board. copyright liability, and particularly, copyright liability for television reception of signals received off the air.
The other substantial segment of the industry-and particularly on the board of directors of the NCTA-has been willing, and even eager, to agree to payment of copyright fees "across the board" in response to an assortment of influences, including the appeal of an expedient response to the pressure for copyright payment; the desperate hope that such a commitment will evoke some response from the Federal Communications Commission in the direction of relaxing its very restrictive regulations of CATV; and the expectation that such payment from the existing industry will be the means of securing the availability of microwaved signals thought to be a prerequisite for the economic viability of cable television for the large cities and the cable communications industry of the future.
One measure of the extent of the division is that some 18 State and regional associations have either drafted a resolution for action, or have taken action, in opposition to the NCTA position of copyright payment "across the board".
The basic principle of the Pennsylvania position that off-the-air television reception should not be subject to the burdens and risks involved in a commitment to copyright payment is founded on the pertinent facts and circumstances. The broadcasters and copyright owners make use of the public resource of the airwaves without payment.
In addition, the policy of the 1934 Communications Act favors the widest possible distribution of broadcast services for the general benefit and welfare of all citizens. As a consequence, there must accrue a fundamental right in the public to utilize on an equal basis all signals receivable off the air, whether by conventional rooftop antenna, or by
I am unable in the time allotted to me to further detail the philosophical and factual basis for the Pennsylvania position, and I have, therefore, attached the position in full to this statement for the record.
In summary, the Pennsylvania position so far as payment of copyright fees is as follows:
One. No copyright fees should be payable for television reception of off-the-air signals, regardless of the total number involved.
Two. No copyright fees should be payable for basic television reception, whether secured off the air, or by microwave. While we have stated that basic television reception should include the national networks, three independent television stations, and one educational television station, we recognize that there is room for differences of opinion as to what basic television reception should include.
Three. Copyright fees would be payable on the reception of microwaved signals, other than those required for basic television reception in two above, at the rate of two-tenths of 1 percent per microwaved channel.
Another fundamental concern emphasized in the Pennsylvania position is that the copyright bill not effect a confirmation of the present FCC regulatory treatment of the industry. For example, the FCC definition of so-called distant and local signals has little relation to actual reception conditions for signals received off the air; and the application of these artificial and arbitrary definitions results in unreasonable, unfair, and discriminatory treatment for television viewers.
Finally, and most important, cable television viewers-comprising 10 million subscriber homes with over 30 million viewers-have never been informed of the proposal for copyright payment for their television reception service, while payment will not be required for the same reception by their next door neighbor using a conventional rooftop antenna. In this day of consumer concern and special awareness for due process, the lack of fairness and reasonable treatment for cable subscribers for television reception-both off the air and for basic television service-is most evident, is not supportable, and certainly should not be countenanced by this committee whose very title stands as a beacon light for the citizens of our Nation for proper protection of their basic rights.
Mr. Chairman and members of this committee, I have been a member of the negotiating committee of the industry; and I was party to the consensus agreement. I should be very glad to answer any questions you have.
Mr. KASTENMEIER. Thank you, Mr. Barco. In that connection, when the agreement was concluded in 1971, you were one of those who were agreeable to the provisions?
Mr. BARCO. Absolutely not. There was a very strong division, then, and we were told by the then Chairman of the FCC that this had to be because it was demanded by the White House, otherwise we cannot relax the rule. There had been a freeze on the industry, and the industry was desperate. The manufacturers were going out of business, the industry was at a standstill; and it was only by a two-vote majority that that was carried and accepted by the board of our directors and the officers of the association. There were very, very violent arguments about the whole thing. And, as Mr. Ford has pointed out, the other factors shortly followed, so it was never given any credence by anybody.
Mr. KASTEN MEIER. Off the record.
[Discussion off the record.]
Mr. KASTENMEIER. Mr. Barco, we do have another witness whom we will not be able to hear without returning. So, I will request that we recess and then return during what would otherwise be the lunch hour, and proceed with our last witness.
I propose we will return at 1:45, after we vote, and conclude at 2 o'clock.
Mr. BARCO. Mr. Chairman, before I am dismissed, may I please just make one suggestion? You note that our position provides that when a signal is carried far beyond its normal area of operation
Mr. KASTENMEIER. By microwave.
Mr. BARCO. Yes. We believe that under some circumstances a copyright fee should be paid.
Mr. KASTENMEIER. I was interested in this and hoped to question you about this.
Mr. BARCO. I will be glad to come back after lunch.
Mr. KASTEN MEIER. The subcommittee will be in recess for 15 minutes, until 1:45.
[Whereupon, at 1:30 p.m. a recess was taken until 1:55 p.m.] Mr. KASTEN MEIER. The subcommittee will come to order for the resumption of our testimony today. When we recessed we were hearing from Mr. George Barco, who had submitted his testimony, and was in the position of anticipating a question of mine, to the position of the Pennsylvania Cable Television Association, No. 3, that copyright fees would be payable on the reception of microwaved signals.
What are microwave signals, in common parlance, so that we might understand what that refers to?
Mr. BARCO. There are two types of signals in cable television systems received and transmitted to their subscribers. One, what we receive normally over the air, and the other where we have to use microwave operations, where you bring a signal by long distance with a series of retransmitting of signals, reaching the ultimate destination. Now, may I explain that?
Mr. KASTENMEIER. Yes.
Mr. BARCO. I said we take three positions, as Your Honor will remember. First, anything "off the air" should pay no copyright because it is a basic right of the American citizen to receive these broadcast television signals. Number two, we said there is also a right to basic television reception, regardless of how it is received, by the public.
Now, even though in Pennsylvania there is no need to have anything except what we receive off the air-in any part of Pennsylvania-there are some signals brought in by microwave from New York City, for instance. But they are not needed for basic television reception excepting in those instances where we want it.
Now, we think there are some communities in the Midwest and Far West where they cannot get the signals any way except by microwave, but it is a very small number of communities. We think that those people should be entitled to receive television reception, regardless of whether it's off the air, or by microwave, without the payment of copyright because of the fact that it is important to the welfare of our Nation to have everybody receive television reception. And we say they should be able to receive the three networks, three independents, and one educational station.
You might ask, why do we cite that number-this is the reception provided to people in the large cities. Why should there be second-class citizens in the smaller communities. Television reception in the small communities, gentlemen, is more important than television reception in the big cities because this is the most important thing they have outside eating and sleeping.
Mr. KASTENMEIER. In terms of the networks, the independent and educational television stations, there is an FCC determination of what constitutes a complete service within a market in terms of some configuration as to what type of network stations constitute
Mr. BARCO. A market.
Mr. KASTENMEIER. A fully served area. I guess this is somewhat different.
Mr. BARCO. Mr. Chairman, that definition is an artificial one, established by the FCC. The amazing thing to us in the industry is that they will give a license to a broadcaster to put a signal out in the air. They can't restrict that licensed signal, where it goes. And then they come and say to us, "Well, you can't carry it" even though we pick it out of the air. They say, "You can receive this one, but you can't receive that one." Frankly, we can't understand it at all.
And the other thing we have to keep in mind, Mr. Chairman, is that, if in the same community, if you use a rooftop antenna, you can receive anything that is receivable off the air, like you do with the CATV system. But the FCC comes and says to us, "If you have to buy television reception service from a cable company, you can't bring in but so many stations," but they make no such restriction on rooftop antennas, regardless of the number of signals received.
Mr. KASTENMEIER. Mr. Barco, do the members of your association— and it is a very old one in Pennsylvania-differ in terms of their characteristics, or types of programs, the type of transmitting they are involved in, than the members of the national association that testified before?
Mr. BARCO. No, generally not. I would say to you that from our personal knowledge, we have about 60 systems which do cable casting, which is local origination. Our system has been doing that for 8 years, and we know a number of other systems who do the same thing.
Mr. KASTENMEIER. Thank you. The gentleman from California, Mr. Danielson.
Mr. DANIELSON. Thank you, Mr. Chairman.
Thank you, Mr. Barco. On cable casting for origination of programs you do not question that copyright fees should be paid on that type of
Mr. BARCO. Absolutely not. And we do pay on those we buy.
Mr. DANIELSON. I just wondered whether you had any question on that.
Mr. BARCO. No, no question.
Mr. DANIELSON. Under the formula that you come up with here, your three points, can you give me an estimate of how many CATV systems would be paying copyright, and how many would not?
Mr. BARCO. My recollection is that that was checked by the NCTA Office, and they estimated about 750 systems would be paying copyright, that is if they brought it in by microwave beyond, off the air. Mr. DANIELSON. I understand. Well, 750-how many systems are there?
Mr. BARCO. Altogether around 3,000.
Mr. DANIELSON. About 25 percent?
Mr. BARCO. But you must keep in mind, Congressman, that 89 percent of the top 100 market, or 89 markets rather, have not been developed for CATV, and this is where the play is going to come in because they think that they are going to develop those markets by bringing in the distant signals by microwave. And when they get beyond the basic television reception, then they will have to pay.
And of course, that is all based on the proposition that when you bring in a signal by microwave, there has not been any compensation to the copyright owner. If he is being compensated because he knows about it, then of course we don't think there should be double payment. But if he hasn't been paid, it's only right that he should be paid.