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Laudable Rule or Unfair Hardship?

Commenters Dispute the Proposed Requirement To Record and Archive Programming

Commenters Dispute the Proposed Requirement To Record and Archive Programming

This is the first in a series excerpting public comments filed with the FCC on its proposal to require broadcasters to record and retain programming for some specified time, such as 60 to 90 days. The commission proposed this requirement to increase the effectiveness of its enforcement restrictions on obscene, indecent and profane programming.

United States Conference of Catholic Bishops

USCCB supports the commission’s proposed rule to require broadcasters to maintain archives of programs aired by the broadcast licensees to enable the public to acquire evidence that indecent material has been aired. The current procedure for indecency complaints, which puts the initial burden on listeners and viewers to obtain a transcript from the broadcaster of the program at issue, but does not require the broadcaster to provide it when requested by the listener or viewer, inhibits the appropriate enforcement of indecency rules.

Absent a transcript or tape, the commission is forced to make its initial decision based on a listener’s or viewer’s memory alone, a situation unfair to the complainant, the broadcaster and the commission. …

USCCB also supports the commission’s proposal, in this Notice, that program archives rules be developed so that citizens will have much-needed information with which to file petitions to deny, and file thorough comments in future and current proceedings before the commission. To succeed, petitions to deny a license renewal must “contain specific allegations of fact sufficient to show that … a grant of the application is prima facie inconsistent with (the public interest).” …

Since the commission eliminated much of the documentation formerly required of broadcast renewal applicants … the public must rely instead on time-consuming and elaborate viewer (or listener) logs of programs or on broadcasters’ vague quarterly program/issues lists. The commission itself has recognized that licensees can easily defeat petitions to deny based on the quarterly lists by providing information they did not include on those lists. …

With access to actual program records, the public may make their case against renewal on a more even footing with licensees (who have always had access to their own programming records). …

USCCB applauds the commission’s recognition that more tools, such as citizens’ access to program records, are needed to assist it in “enforce(ing) … other types of complaints based on program content.” However laudable these efforts are, the commission must take the next necessary step by defining what “program content” will satisfy the statutory requirement that broadcasters serve the public interest.

The commission must move decisively and open for public comment a rulemaking to establish clear, enforceable requirements that broadcasters determine the needs and interests of their communities of license, air at least a minimum amount of public affairs, news and independently produced programs which meet those needs and interests, and report to the public their actions.

National Association of Broadcasters

NAB observes that the commission is clearly able to enforce its indecency rules effectively without the proposed recording requirement, especially given, in Chairman (Michael) Powell’s words, the FCC’s recent “sharpen(ing)” of its “enforcement blade.” In any event, the commission dismisses only about 1 percent of all indecency complaints filed for failure to provide sufficient information (such as a tape, transcript or excerpt of the challenged programming), so the imposition on broadcasters of a program recording requirement would not aid the FCC’s enforcement processes in any material way.

By any standards, the commission’s proposal to require all broadcasters in the country – regardless of their size and resources and their past record in complying with the indecency rules – to record all their programming and to retain those recordings, perhaps for months, is extraordinarily overbroad and fundamentally unfair. In 2002, 2003 and 2004 combined, only one television station received a notice of apparent liability … for forfeiture for airing indecent programming.

Over that same period, merely a small fraction of 1 percent of all radio stations in the U.S. received a NAL for indecency. An exceptionally small number of broadcast programs are ever the subject of indecency complaints (let alone NALs), as the vast majority of complaints filed at the commission concern literally a handful of programs.

There are simply no grounds for the commission to justify its astoundingly overbroad and punitive proposal, which will force thousands of broadcasters to record and retain tens of millions of hours of programming. Not only does the commission’s proposal fail to serve any reasonable regulatory purpose, as the vast majority of stations upon which the requirements would be imposed already fully comply with the indecency rules, it would also fail any reasonable cost/benefit analysis.

The equipment and personnel costs involved in the recording and retention of (at a minimum) tens of millions of hours of programming will not be insignificant across the radio and television industries as a whole. These costs and burdens, moreover, will fall in a disproportionately heavy manner on smaller market and non-commercial stations, especially television stations that multicast.

For stations on fixed capital budgets, recording requirements could force them to expend scarce resources now available for programming or other purposes, even though most stations have never received an indecency complaint, let alone a forfeiture. In addition to the equipment and personnel costs, the commission’s proposal would entail the completely redundant recording by thousands of broadcast stations of the exact same television and radio network programming, syndicated programming and musical programming, virtually none of which will ever be the subject of an indecency complaint.

Just as the commission in 1977 declined to adopt a more narrow taping requirement, the commission should conclude in this proceeding that the benefits of an even broader recording mandate do not outweigh the costs imposed.

Station Resource Group and the National Federation of Community Broadcasters

The (Notice of Proposed Rule Making) is silent on the critical issue of whether the recorded programs would have to be kept in a station’s public file, or otherwise be made available to the public, but even if retained programs were not made part of the public file, the proposed rule would subject NCE stations to an unprecedented potential for governmental intrusion into program content.

Has an NCE station arguably broadcast a “view” on a subject of public importance or interest? Aired a statement that supports or opposes a political candidate? Advocated a position on a matter of pending legislation? Aired a program possibly lacking in objectivity and balance? Broadcast a program injurious to the reputation of a public official?

The proposed rule would provide a new basis for investigating all these questions. If a station’s programming had to be retained for 60 to 90 days, such records would undoubtedly be subject to subpoena or other legislative, judicial or regulatory scrutiny.

The FCC, Congress, CPB and public officials would be able to subject programming on NCE stations to a level of governmental interference that would make the former “Fairness Doctrine” seem benign by comparison.

The proposed requirements would fall, like regulatory rain, on the just and the unjust alike. The rule would apply to all broadcasters, regardless of their ability to afford such burdens, or the likelihood that they will violate indecency rules. These burdens are particularly severe for NCE stations, including new LPFM stations, for whom the costs of recording and storing copies of programs cannot be recovered as a business expense.

Because NCE stations operate on limited budgets, and have a limited ability to expand revenues to satisfy new capital and administrative expenses, the proposed rule would impose a significant hardship for many stations.

More than 550 comments may be found in MB Docket 04-232.