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Senator HARTKE. I will tell you quite honestly that as far as your proposals are concerned, you have asked for greater authority, you say, on a local level, while, at the same time, you have put in a special service agency to dominate the public broadcasting, right?
You have a different criteria.
In other words, you want centralized control of public broadcasting, local control of commercial broadcasting, and in between all of this we will come up with a 5-year extension if everybody can stay in line, politically, right?
Dr. WHITEHEAD. I think you misunderstand what we are trying to do.
Senator HARTKE. I think I understand, too well. Thank you. The whole question of telecommunications at international levels, I under stand, Mr. Chairman, is still under discussion.
Mr. ZAPPLE. That is in the record.
Senator HARTKE. I would hope we would have time to come back to this at a later date.
Senator PASTORE. We will. At this point I would like to submit questions to which Senators Hart and Hollings have requested your answer, Dr. Whitehead.
(The questions and answers follow:)
QUESTIONS OF SENATOR HART
Senator HART. Dr. Whitehead, my primary concern with your office is with the pressures that are coming on program content, both on the networks and on public television.
There is growing apprehension—and I believe with justification- over the club that seems to be raised to bring the networks and public television into greater harmony with the Administration point of view.
Your December 18 speech, combining as it does the offer to local stations of the carrot of 5-year license renewal together with the stick of "full accountability" if they don't get rid of network bias, is particularly alarming.
Let me ask you :
When an incumbent licensee comes in for renewal, who will be judging whether he has complied with his "fairness obligation?"
Now, since the legislation would forbid the FCC from setting up predetermined standards of performance ("quantification of the public interest," as you call it) what criteria will be used to measure compliance?
In an October 6, 1971 speech, you describe the Fairness Doctrine as "simply more government control masquerading as an expansion of the public's right of free expression."
How do you reconcile that statement with the requirement in your new bill that the broadcaster must adhere to the fairness obligation?
Your bill requires the broadcaster to "turn toward his local audiences." How does the broadcaster determine the needs of the local audience? Since the FCC requirements for public service would be dropped, supposing a local audience wanted only movies, or only sports? Would there be no public service requirement?
Your bill abolishes the requirement for a comparative hearing when a license is challenged. You describe the comparative hearing as "not unlike the medieval trials by battle, and the winner of this trial is not necessarily the person who will best serve the interests of the local community but rather the one who can afford to stay in the heat of battle the longest--the one with the most time, the deepest pocket, and the best lawyer. Certainly, in this day and age, we can devise more rational and equitable procedures especially when, in all cases, a substantial public interest is at stake.”
Lacking the public hearing, what assurances do blacks or other minorities have that their effort to break into TV will not be voted down without their having their day in court?
You note that the third change under the new bill would preclude the FCC from "restructuring the broadcasting industry through license renewal hearings." I gather this means you would throw away this tool for preventing further concentration in the media industry?
You recommend that the FCC be prohibited from establishing any performance criteria "respecting the extent, nature or content of broadcast programming." Does this prohibition apply to the Commission guidelines on over-commercialization? On children's programs?
Does your recommendation covering criteria for license renewal prohibit the FCC from taking into account such issues as discriminatory employment practices?
The U.S. Court of Appeals for the District of Columbia Circuit has ruled that, in resolving competing applications, the Commission should give preference for diversity of ownership and should particularly encourage ownership by racial minorities. Accordingly, most competing applications now include minority participation.
The new bill would apparently cut off this opportunity for minority ownership? Dr. Whitehead, you have expressed concern over what you describe as the centralization of power in the Public Broadcasting Service. At the same time you urge that the local stations should be the primary decision-makers in matters of programming.
Just recently the Corporation for Public Broadcasting announced that it was planning to assume all responsibility for national television programming and PBS, which is governed by a board with a majority of station representatives, would be responsible only for the operation of the interconnection system. A question which naturally comes to mind is "How do you, Dr. Whitehead, feel about the apparent contradiction between your stated position of concern over the centralization of powers in Washington and the recent CPB action which serves to centralize those powers in an even more concentrated manner?" "Where is the Administration's long-range financing plan for public broadcasting which was promised many months ago?"
"How do you feel about public affairs or current events programming on public television?"
"What is the role of the local stations with regard to programming decisions for the national service?"
(With regard to last question, I must state my own prejudice that the local stations must have a major role in decisions affecting national programming. The freedom to use or not use nationally distributed programs is not the same as playing an active role in the decisions about which programs will be offered and at what time.)
Answers. The questions you raise fall into two categories. The first pertains to OTP's proposed legislation concerning license renewals, and the second to public broadcasting.
In response to your questions on our license renewal proposal:
The "fairness" obligation is a statutory policy relating to the broadcaster's programming performance, that would continue to be enforced by the FCC under our license renewal bill.
Use of the fairness obligation as a standard for license renewal is fully consistent with the law and the established practice of the FCC. The Supreme Court in the Red Lion case specifically stated:
"To condition the greeting or renewal of licenses on a willingness to present representative community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgment of freedom of speech and freedom of the press."
(Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 394 (1969)).
The obligation was initially enforced by reviewing the overall performance of the licensee at renewal time. For example, the FCC's 1960 "Programming Inquiry" report stated that:
"The responsibility usually is of the generic kind and thus, in the absence of unusual circumstances, is not exercised with regard to particular situations but rather in terms of operating policies of stations as viewed over a reasonable period of time. This, in the past, has meant a review, usually in terms of filed complaints, in connection with the applications made each three-year period for renewal of station licenses." 20 RR 1901, 1910.
Under OPT's proposed legislation, however, the Commission's review of program performance would be based upon a number of considerations, such as:
(1) the mechanics, quantity and quality of the applicant's ascertainment efforts;
(2) an evaluation of the applicant's past, present, and proposed programming in light of the ascertained needs, interests, problems and issues, i.e., the community's standards of program performance and not the FCC's program standards;
(3) The "promise v. performance" aspects of the broadcaster's programming showing; and
(4) various "content neutral" aspects of the applicant's programming expenditures: equipment and facilities devoted to programming; policies regarding preemption of time to present special programs; and the like.
You questioned the apparent inconsistency in my criticizing the FCC's Fairness Doctrine and my support for continued broadcaster adherence to the fairness obligation set out in the Communications Act. This question came up during the course of my appearance before the Subcommittee and was covered in the following way:
Dr. Whitehead. You have to differentiate between the "fairness doctrine," which is the case law that has grown up in the FCC, and the fairness obligation. We certainly are not opposed to the fairness obligation.
Senator Pastore. Suppose you make the distinction?
Dr. Whitehead. The fairness doctrine is a body of cases and interpretations that has evolved as the FCC has tried to deal with various cases brought before it dealing with the broadcaster's general obligation to be fair and objective. It is hard for anyone to be opposed to the idea that the broadcaster should be fair and objective in how he discusses his views, or in who he lets on to discuss various points of view.
This is a very great power that the broadcaster has and he certainly should exercise it in a fair way. However, in the absence of any clear and definitive policy as to what that means, the FCC and the courts together have been interpretating this on a case-by-case basis. As a result there is a confusing welter of precedents, opinions, judgments, and rough guidelines, and I think it is safe to say that the broadcaster and the public at large are very hard pressed to know what the fairness doctrine, as an embodiment of the fairness obligation means and how it is to be interpreted.
Senator Moss. Do you remain opposed to the fairness doctrine criteria?
Dr. Whitehead. I am not opposed and have never been opposed to the fairness obligation that is written under the Act. I am opposed to the chaotic enforcement scheme known as the fairness doctrine, which has grown up to enforce that obligation.
Senator Moss. You are
Dr. Whitehead. I think in the long run, that case by case enforcement by the FCC ought to be done away with. In the shorter run, I fully support the FCC's attempts to clarify this as to what areas it will be applied.
Senator Moss. You prefer to shift the enforcement, though, to a five-year plan, right?
Dr. Whitehead. It is my feeling that that would be constructive, yes. Senator Moss. It would be remote in the political situation, would it not? Say the license would not be renewed?
Dr. Whitehead. It would be remote and there would have to be clear exceptions where the issues are particularly significant and time-critical.
Political elections are certainly one case.
You also asked how the broadcaster would determine the needs of his local audience. The public interest standard of the Act requires licenses to make a "diligent, positive, and continuing effort to discover and fulfill the tastes, needs and desires of [the] . . . community or service area, for broadcast service." ("Report and Statement of Policy Re: Commission En Banc Programming Inquiry," 20 RR 1901, 1915 (1960)). This has been explained as consisting in part of eliciting information concerning the community's needs, interests, problems and issues. Ascertainment, which is a continuing process throughout the licensee period, requires the broadcaster to consult with a representative range of community leaders and members of the general public. The broadcaster must not only seek out and determine the nature of significant public issues, he must respond to them specifically. In television, this most usually means news, public affairs discussions, and other informational programming.
In further response to your questions, the legislation specifies that in order to obtain renewal, an applicant must be qualified to hold a license under the Communications Act and the FCC's rules and regulations. This would include, for
example, rules pertaining to minority employment practices. The OTP bill would not prohibit the FCC from taking into account these matters. Indeed, this specific provision regarding the applicant's competence under FCC rules and regulations does not throw away any "tool for preventing further concentration in the media industry" or any consideration of such matters as minority participation. It simply requires that any such policies be applied through general rules, rather than through case-by-case adjudication.
The proposed legislation would not make any change whatsoever in the ability of minority groups, or of any community group, to "break into TV" or to have their "day in court." The bill would not change existing substantive law regarding minority participation. With regard to petitions to deny-and this is the means that by far the most community and minority groups use to reach into the renewal process-the OTP bill would make no change whatsoever in existent procedures. FCC records show that, during fiscal year 1972, 68 petitions to deny were filed against the renewal applications of 108 broadcast stations. Most of the petitions were filed by minority and special interest groups in the broadcasters' communities and contained allegations directed toward the licensee's ascertainment efforts, programming for minority groups, and employment practices. Nothing in the proposed legislation would adversely affect the ability of these groups to file such petitions. No hearing would be denied them.
The goal of fostering competition in broadcasting is fundamental to the Communications Act, including minority group participation in ownership, but the present procedures for competing applications are not the most appropriate means of serving this goal. This amounts to nothing more than one applicant vying with another before a government agency for the license privilege. It does not usually result in more minority participation in ownership. There is a need for increased competition among broadcasters and more minority ownership, but this need should be met by government policies that expand broadcast outlets and reduce economic concentration among existing broadcasters.
Your other questions touched on public broadcasting and certain recent developments in the relationship between the Corporation for Public Broadcasting and the Public Broadcasting Service.
At the outset, let me state that I share your "prejudice" in favor of local stations and the weight they should carry in public broadcasting generally. I continue to believe, as I have previously indicated, that decentralization of programming activities should be a cornerstone of the public broadcasting foundation, and that local stations should play a major role in decision-making in matters of programming. The most effective way for them to play this role is not to provide for some limited local station representation in national entities that make program decisions, but to implement the plan of the Public Broadcasting Act, which gives local stations the autonomy and authority for complete control over their program schedules.
Once this and other issues in public broadcasting are resolved it will be appropriate to consider long-range financing.
Finally, public affairs and current events programming is an important component of public television's contribution to the flow of information. Indeed, this type of programming is recognized as part of every broadcasters responsibilities under the Communications Act of 1934.
While I support public affairs and current events programming done by local educational broadcast stations on public television. I have been concerned about use of appropriated funds to produce and disseminate such programming at the national level, especially with the tendency of program production to become centralized in New York or Washington based production centers. Reliance on federal monies for the maintenance of public affairs programming is inappropriate and potentially dangerous. Robust electronic journalism cannot flourish when federal funds are used to support such programming.
QUESTIONS OF SENATOR HOLLINGS
You indicated in your prepared statement that OTP has several studies either underway or recently completed, which concern cable television. When will the studies be complete and what do you propose to do with the results of these various studies?
What is your present and planned level of staffing and what is the nature of the assistance you receive from other departments and agencies of government?
Answers. The President's Cabinet Committee on cable television has already completed its studies. The results of those studies will provide the foundation for the recommendations on long-range cable policy which the Committee will shortly make to the President.
Our FY-73 authorized ceiling is 65 permanent positions. Our request for FY-74 is for 52 permanent positions, a reduction of 13 positions in line with the President's desire to reduce the size of the Executive Office.
While the usual assistance accorded the Exectuive Office is recieved from the departments and agencies, the Department of Commerce, Office of Telecommunications provides particular assistance in several areas; the secretariat for the Interagency Radio Advisory Committee (IRAC); technical and analytical support for OTP's spectrum management responsibilities for the federal government; and technical and economic analyses in support of OTP's policy development responsibilities.
Senator PASTORE. Any further questions? If not, we want to thank you very much, Mr. Whitehead. I look with great anticipation to your speech, the title of which I hope will be "Mea Culpa." Dr. WHITEHEAD. Thank you, Mr. Chairman.
(Whereupon, at 12:45 p.m., the hearing was adjourned.)
(The following information was referred to on p. 3:)
[From the Washington Post, Tuesday, Dec. 19, 1972]
ADMINISTRATION MOVES TO TIE TV LICENSES TO NEW SHOWS (By John Carmody)
In a speech sharply critical of the television networks, a Nixon administration spokesman announced yesterday that legislation has been prepared that would make local stations responsible for the objectivity of network news shows.
Dr. Clay T. Whitehead, director of the Office of Telecommunications Policy, said the proposed legislation would amend the TV station license renewal provisions of the Communications Act of 1934.
His comments and some of the legislative proposal were contained in a speech before the Indianapolis, Ind. chapter of Sigma Delta Chi, a professional journalism society.
Whitehead said the legislation would establish two criteria for renewal, which each TV station would have to meet before the Federal Communications Commission would grant a new license.
"The broadcaster must demonstrate he has been substantially attuned to the needs and interests of the communities he serves . . irrespective of where the programs were obtained. . . and
"The broadcaster must show that he has afforded reasonable, realistic, and practical opportunities for the presentation and discussion of conflicting views on controversial issues."
(In Washington, an OTP source said the bill now being discussed at the Office of Management and Budget would also increase the license renewal period from every three to every five years. He also said another proviso, not discussed by Whitehead, would "put the burden" on community groups to prove their complaints against local broadcasters before the FCC would hold a hearing. In the past, lengthy adjudication has sometimes arisen from renewal complaints.
All these points, the source said, were "actually pro-broadcasting" and arose from a meeting between some 30 broadcasters and President Nixon here last June).