Sep 9, 2005 -- Legal Center Sends Letter to Hill Regarding Public Interest Obligations and the Digital Transition

The Honorable Ted Stevens
Chairman, Senate Commerce, Science and Transportation Committee Dirksen 508
Washington , DC 20510

The Honorable Daniel Inouye
722 Hart Senate Office Building
Washington , DC 20510

The Honorable Joe Barton
Chairman, House Energy & Commerce Committee
2125 Rayburn HOB
Washington, DC 20515

The Honorable John Dingell
2328 Rayburn House Office Building
Washington , DC 20515

Re: Public Interest Obligations and Multicasting Must-Carry

Dear Chairmen Stevens and Barton and Ranking Members Inouye and Dingell:

As you get closer to reporting out legislation to manage the digital television conversion, we strongly urge you to ensure that public interest obligations are at the core of the upcoming debate about the future of television, especially in light of critical decisions you are facing regarding multicasting must-carry.

We are aware that the National Association of Broadcasters is pushing strongly for you to include provisions in the digital transition legislation to require cable carriers to carry additional streams of programming stations may broadcast. No decision on must-carry should be made until and unless your Committees have set forth provisions which spell out meaningful and effective public interest obligations for digital television broadcasters. Not only will clear public interest obligations ensure strong civic discourse and quality programming for viewers, but it will also increase certainty for broadcasters who must build a business model that can succeed in a new, extremely competitive environment. Of course, once these new meaningful obligations are in place, the Commerce Committees may decide that these obligations are still not sufficient to require multicasting must-carry. But instituting a new must-carry regime without having first implemented clear and strong obligations is certain to be a public policy disaster, giving a sweetheart deal to broadcasters and a raw deal to the American people.

Taking this opportunity to define public interest obligations in the digital age is critical because even in the current analog scheme, most broadcasters do not fulfill their most basic pledge to serve the American viewers. Studies show that broadcasters have provided little civic and electoral affairs programming, even during the most recent election cycle. A University of Southern California study found that during the 2004 election cycle, a typical half-hour news broadcast contained only three minutes and 11 seconds of campaign coverage. Although 55 percent of broadcasts included stories about the presidential election, just eight percent reported on local races for Congress, state legislature, city council or other local posts. Only one-third of election programming related to issues; most pertained to campaign strategy and the "horserace."

Congressional action on public interest obligations takes on even greater importance because of continuing delays at the Federal Communications Commission. Nearly six years have passed since the agency began the formal rulemaking process on broadcasters' public interest obligations in the digital age - and still no rules have been issued.

Public interest obligations in the digital age should include processing guidelines that ensure each local television station provides a minimum of three hours per week of local civic or electoral programming on its most-watched channel. Additionally, in the six weeks prior to a general election for federal, state or local public office, a minimum number of hours of the station's local civic or electoral affairs programming should air when the most adult viewers are watching. Any additional streams of programming operated by broadcasters should have commensurate minimum qualifying programming requirements. Just as in the case of children's educational programming guidelines, broadcasters who fulfill these guidelines would be guaranteed an expedited license renewal process. Broadcasters who do not meet the minimum guidelines would have the opportunity to explain to the FCC why their public service is adequate. In order to ensure that the public interest obligations guidelines are fulfilled, the Committee should also direct the FCC to adopt a clear definition of what qualifies as local civic and electoral affairs programming. This programming should include issues of importance to the community, local, state as well as information about U.S. Congressional races, and discussions of ballot measures that will be put before the voters. Programming that focuses on the "horserace" aspects of an election should not qualify.

In addition to public interest obligations, appropriate disclosure requirements would give the FCC more complete and accurate information to make better policy, as well as provide viewers with information about the programming being aired in their communities. Broadcasters - who use a publicly owned resource - should post quarterly reports identifying all civic and electoral affairs in their public files and on the Internet.

Congress has both the authority and responsibility to define what constitutes public interest obligations. Moreover, NAB President Eddie Fritts, in his July testimony before the Senate Commerce Committee, said that broadcasters were prepared to accept specific DTV public interest obligations. The use of processing guidelines is already established, and is currently being used for children's programming. Those who claim that such processing guidelines are unconstitutional are simply putting up a smokescreen to evade the responsibilities that come with having the ability to exploit a valuable public resource.

For 70 years federal communications law has required broadcasters to serve the public interest, convenience and necessity. We strongly urge you to first implement clear and strong public interest obligations before making any decision on multicasting must-carry.

Sincerely,

Campaign Legal Center , Media Policy Program
Common Cause
Media Access Program
New America Foundation
Office of Communication of the United Church of Christ, Inc.

cc: Senate Commerce and Transportation Committee and House Energy and Commerce Committee