MILLERD TVPUBINT 93 RTVJ Serving Public Interest w/o
Ascertainment
SERVING the Public Interest in the Absence of
Ascertainment Rules: A Survey of Kentucky Broadcasters
David T. Miller
and
Haeryon Kim
College of Communications
University of Kentucky
Lexington, KY 40506-0042
(606) 257-3021
Bitnet: KIM@UKCC
Please address all correspondence to Haeryon Kim
Paper submitted to Radio-Television Journalism Division
AEJMC Annual Conference, Kansas City, 1993
SERVING the Public Interest in the Absence of
Ascertainment Rules: A Survey of Kentucky Broadcasters
Abstract
This paper is an attempt to investigate broadcasters' programming
efforts to serve the "public interest" in the absence of ascertainment
rules. This paper first introduces a brief history of ascertainment
rules. Then this paper reports the results of a survey of members of
the Kentucky Broadcasters Association. This paper concludes that
despite the elimination of formal ascertainment rules, broadcasters
still operate under the old public interest paradigm which
emphasized news, interview, and talk show programming to fulfill
the public interest obligation.
Introduction
The Communications Act of 1934 requires that the Federal
Communications Commission award broadcast licenses on the basis of
the public interest, convenience and necessity, although those terms
are not defined in the Act. Until the deregulation of radio and
television in the early 1980s, the FCC required broadcasters to take
positive steps to demonstrate an understanding of community "needs
and problems," and to present specific programming to address such
needs and problems. However, with the deregulation of many
aspects of broadcasting licensees are no longer required to research
or report on local problems--although the requirement that they
operate in the public interest remains.
The Public Interest Standard
The Communications Act represented a compromise between
commercial entities who desired to operate stations for the highest
degree of profit and a public who regarded the airwaves as a
national resource (Paglin, 1989). The compromise allowed the
government, through the Federal Communications Commission, to
award station licenses in exchange for the broadcasters' agreement to
operate in the interests of the public. The physical limitations of the
broadcasting spectrum obviously limited the number of broadcasters
who could operate, if the anarchy prevailing in radio before the
adoption of the Act and its predecessor, the Radio Act of 1927, was to
be avoided. The licensing scheme was upheld by the U.S. Supreme
Court in NBC v. United States (1943).
Broadcasters were thus considered trustees of a scarce public
resource, subject to licensing requirements analogous to those
imposed upon other publicly-owned resources. However, the
broadcast industry is unique in that it involves not widgets but
words; to avoid the specter of government censorship, the Section
326 of the Communications Act of 1934 specifically directs that the
Commission not dictate programming content.
The standard chosen for the Commission's exercise of its
oversight duties was that the Commission should adopt such rules as
the "public convenience, interest, or necessity" required, a standard
reiterated in one form or another in all major sections of the Act.
The flexibility of the public interest standard gave the Commission
the ability to respond to new technological or social developments.
The Act also requires that the Commission "make such
distribution of licenses . . . among the several States and communities
as to provide a fair, efficient, and equitable distribution" (Sec. 307b)
of broadcasting services to each, a mandate which the Commission
interpreted as requiring that broadcasters become cognizant of, and
respond to, the needs and interests of the communities in which the
broadcasters operated. It was never clear, however, what type of
programming was required to satisfy this so-called "localism"
mandate. Broadcasters might propose programming designed to
meet the requirement, but after the Commission awarded the
broadcast license the mechanisms for punishing the broadcaster,
such as warnings and fines, rarely led to an FCC refusal to renew a
license.
In response to public complaints that some licensees were
ignoring local problems, in 1946 the FCC issued a memorandum
entitled "Public Service Responsibilities of Broadcast Licensees,"
widely known as the Blue Book. The Blue Book required
broadcasters to provide airtime for controversial, experimental, and
otherwise commercially risky programming, as well as programming
directed to "minority tastes and interests." These duties were
strengthened in 1949 with the promulgation of the Fairness Doctrine,
requiring that broadcasters provide airtime for opposing viewpoints,
as well as free equal time for political opponents of candidates
appearing on the station. Industry response to these duties was
"explosive" (Friendly, 1975, p. 22) and uniformly negative (Meyer,
1962).
Only in the 1960's, however, did the FCC begin to strenuously
enforce the requirement that broadcasters actively research the
needs and interests of their communities. The activist FCC of the
period required, via the "1960 Programming Policy Statement," that
broadcasters "make a positive, diligent and continuing effort in good
faith, to determine the needs, tastes and desires of the public" in
their broadcast area. Also in the 1960s, an increasing number of
minority and consumer groups began to challenge stations license
renewals, claiming that their interests were not being sufficiently
represented by broadcasters. The challenges were strengthened by a
string of legal successes, most notably Office of Communication of
United Church of Christ v. Federal Communications Commission
(1966), and the Supreme Court's affirmation of the scarcity rationale
in Red Lion Broadcasting Co. v. Federal Communications Commission
(1969). The Court reaffirmed that it is the "right of the viewers and
listeners, not the rights of the broadcasters, which is paramount" (p.
389).
The FCC's focus on the public's rights culminated in the City of
Camden decision (1969), in which the FCC denied a license
application on the basis that the application failed to adequately
survey the community in which the broadcaster intended to operate.
After Camden, the Broadcast Bar Association asked the Commission
to more clearly state the criteria for evaluating public interest
service (Heller, 1981, p.72). In response, the FCC in 1971
promulgated a "Primer on Ascertainment of Community Problems,"
which, as amended through 1976, remained in effect until their
deregulation of radio in 1981 and television in 1984. The Primer
required that stations conduct interviews with community leaders,
solicit and maintain public files of comments about programming,
and make the public aware of the station's duty to address
community issues. Stations were also required to file
Problems/Programs Lists with the FCC, outlining community
problems and listing specific programs broadcast to address them.
The Lists, never popular with broadcasters (Hafer & Fletcher, 1983;
Heller, 1981), tended to provide a minimum of information, and
doubts about their effectiveness in encouraging broadcasters to
program in the public interest were widespread. The Lists were,
however, important tools for audience groups challenging license
renewals.
Beginning in the late 1970s, but accelerating swiftly in the
1980s, Congress and the FCC began deregulating the communications
industry. Broadcasters were among the most vocal proponents of
deregulation, arguing that FCC paperwork such as the Lists was too
cumbersome and expensive, especially for smaller stations (Powell &
Gair, 1988). The scarcity rationale which had, as a constitutional
matter, permitted public needs to compromise the First Amendment
rights of broadcasters, had in the view of the then-FCC chair Mark
Fowler been undercut by the tremendous diversity of other means of
public expression, eliminating the basis for governmental intrusion
into the business of broadcasting (Fowler & Brenner, 1982, pp. 225-
26). The trusteeship model under which the FCC had, with varying
degrees of enthusiasm, operated since the adoption of the
Communications Act was replaced by the marketplace model
championed by Fowler, a model in which the market, it was argued,
would supply the programming the community considered most
valuable.
Research conducted before the elimination of the ascertainment
requirements set out in the Primer indicated that most broadcasters
viewed the ascertainment procedures as useless for either gathering
new information and for determining what issues are most important
to the local public (Heller, 1981; Smith, 1989). Indeed, a large
percentage of broadcasters surveyed indicated that their public
affairs programming would not change should the FCC drop the
ascertainment rules. Broadcasters cited the rules as an example of
the type of expensive, time-consuming regulation that prevented
them from getting on with conducting their business (Heller, 1981).
With the elimination of ascertainment rules for both radio (FCC,
1981; 1986) and television (FCC, 1984), broadcasters now must only
maintain a public file containing basic documents pertaining to the
licensee's operation and file quarterly reports describing some
community issues and the stations' programming giving "significant
treatment" to such issues. The relaxation of the record-keeping and
ascertainment rules can be expected to have the long-term effect of
removing a major weapon used by various groups to challenge
license applications and renewals (Smith, 1989). Moreover, none of
the surviving FCC rules require the type of affirmative inquiry into
community concerns mandated by the discarded ascertainment rules.
The FCC signalled, in its 1986 "Deregulation of Radio," that coverage
of only five community issues in a quarter would probably show
compliance with the requirement. Broadcasters thus have
considerable latitude in their presentation of public interest
programming. In short, while the duty remains that broadcasters
operate in the public interest, the FCC has made it clear that it is up
to the marketplace to dictate what programming the community
considers important.
SURVEY
To investigate broadcasters' programming efforts to serve the
public interest in the absence of ascertainment rules, a survey was
sent to commercial radio and television stations throughout
Kentucky. For clarity in concept and wording of the questionnaire,
several broadcasters were consulted. In mid-June of 1992 the final
version of the questionnaire (with slight differences between the
radio and television versions) was sent to the general managers of
137 radio and 13 television stations listed as members of the
Kentucky Broadcasters Association. Reminders were sent in mid-July
to non-respondents. By the end of July 1992, 61 radio stations and 7
television stations had submitted useable responses, for total
responses of 45% and 54% of stations surveyed, respectively. Sixteen
radio station questionnaires were returned as undeliverable.
The questionnaires included items concerning station power,
market size, and (for radio) format and (for television) whether the
station is full- or low-power and whether it is UHF or VHF.
Questionnaires for both radio and television explored the perceived
effects of deregulation in the area of public interest programming.
Of radio stations responding to the survey (N = 61), 46 were
AM/FM combinations. Ten were AM only and five were FM only.
Most operated within medium-sized broadcast markets, with 20
operating in markets of 10,000-25,000 listeners and 21 in markets
of 25,000-100,000 listeners. Thirteen stations reported that their
daily listenership to average more than 100,000. On the television
side (N = 7), only one of the respondent stations operated in a market
with an average viewership of less than 100,000. All television
stations responding to the survey were full-power stations.
Country music was the most dominant format, accounting for
19 AM stations and 22 FM stations. Adult Contemporary format
accounted for 11 of the remaining FM stations and nine FM stations
said they had no particular format. Oldies (12 stations), Gospel and
Adult Contemporary formats (7 stations each) accounted for most of
the other AM stations.
FINDINGS
Defining the Public Interest
One survey question on the perceived effects of deregulation
asked "Has your station's public interest programming changed as a
result of the deregulation of the broadcasting industry?" Among
radio stations (N = 61), all but three said deregulation had not
changed their approach to serving the public interest. All three
stations which said it had reported that deregulation had allowed
them to focus more freely on the problems which the community
perceived as important, without the necessity for following FCC rules.
All television stations (N = 7) stated that deregulation had no impact
on their public interest programming. These findings should come as
no surprise. In a previous study Heller (1981) reported that
broadcasters generally found ascertainment procedures not very
useful (p. 79). The next question should be then, how is "the public
interest" determined by broadcasters?
Stations were also asked "What specific steps does your station
take to assure that it operates to meet the 'public interest'
obligation?" Interestingly, 23 radio stations still profess to rely on
interviews with both community leaders and the general public to
determine what programming will serve the public interest. Listener
surveys and regular ascertainment meetings, such as were required
under previous FCC guidelines, were cited by five and six stations
despite the removal of FCC guidelines requiring formal community
research. However, the news department, mentioned by 25 stations
was the most-cited source of the stations' public interest information.
Talk shows and interview programs were considered separate
categories, being mentioned by 23 and 15 stations respectively.
Stations reported that they also rely on listeners to tell the stations
what the community deems important: 15 stations cited call-in
shows and the same number of stations cited public service
announcements as a major source of information on community
needs.
In television, three stations said they engage in some form of
ascertainment procedures such as were previously required. Call-in
shows and interviews were cited as a source of information only by
one and two stations respectively. Four television stations reported
that news as a major source of community information, thus relying
on their news department to identify community concerns.
Public Interest Programming
With the burden of finding out what the community thinks is
important having shifted to the news department and to the
community itself through call-in shows and public service
announcements, how do broadcasters program to meet the perceived
needs of the community? The survey also asked stations to list
specific programs broadcast in the last 12 months which they think
fulfilled the public interest obligation. Twenty-five radio stations
cited various forms of talk or call-in shows as programming meeting
the public interest, while 22 cited news department interviews.
General news programming was cited by 15 radio stations. All these
responses, moreover, held approximately steady when market size
was considered, indicating that these radio stations approach to
public interest programming is not driven by the size of the apparent
audience being considered. This finding confirms Hafer & Fletcher's
finding (1983) that programming to meet the public interest did not
differ across market sizes, as would be expected were ascertainment
procedures truly identifying the unique problems of a particular
market.
Television stations also reported heavy reliance on interview
programs and talk shows to satisfy the public interest obligation.
Five stations cited interview programs, four cited talk shows, and
four cited general news programming as satisfying the public
interest programming requirement. Again, no difference was found
based on market size.
DISCUSSION
Despite the elimination of formal ascertainment rules,
broadcasters in Kentucky continue to consider news and other
informational programs as fulfillment of the public interest
obligation. Stations appear to be relying upon their news
departments to identify issues of importance to the community and
counting on talk and call-in shows to serve the public interest
obligation. The reliance on such programming to fulfill the public
interest obligation is defensible as allowing the listeners to directly
state their concerns--that is, if the public feels an issue is important
enough to talk about over the air, the very act of discussion is
assumed to satisfy the public interest requirement. The most
obvious problem with this approach, however consistent it may be
with the goals of deregulation, is that important minority voices may
be drowned out by the din of the majority, and truly controversial
local issues may never make it to the news or talk show agenda in
the first place. Also, such programming may permit the public
interest mandate to be satisfied by allowing broadcasters to present
listener commentary without reflecting upon the importance to the
community of the matters discussed.
That the vast majority of respondents in this study denied that
deregulation affected their programming at all lends credence to
Hafer and Fletcher's (1983) speculation that even the pre-
deregulation ascertainment procedures were relatively ineffective, or
ineffectively carried out, for stations to truly differentiate the needs
of their listeners on a localized basis. While ascertainment
procedures were imperfect tools for encouraging reflection on
important local issues, their legacy is the heavy reliance stations
still
placed on pre-deregulation ideas of what programming satisfies the
public interest obligation. A decade after the demise of the most
onerous aspects of public interest programming regulations,
broadcasters in Kentucky still operate under the old public interest
paradigm which emphasized news, interview and talk programming.
REFERENCES
City of Camden, 16 R.R.2d 555 (1969).
Communications Acts of 1934, 48 Stat. 1064 (1934).
Federal Communications Commission (1946). Memorandum on
public service responsibilities of broadcast licensees. Washington,
D.C.: Government Printing Office.
Federal Communications Commission (1960). En banc
programming inquiry, 44 FCC 2303.
Federal Communications Commission (1971). Primer on
ascertainment of community problems by broadcast applicants, FCC
71-176.
Federal Communications Commission (1976). Primer on
ascertainment of community problems by broadcast applicants, FCC
75-1361.
Federal Communications Commission (1981). Deregulation of radio,
84 F.C.C.2d 968.
Federal Communications Commission (1984). Revision of
programming and commercialization policies, ascertainment reports,
and program log requirements for commercial television stations, 98
F.C.C.2d 1076 (1984).
Federal Communications Commission. (1986). Deregulation of
radio, 104 F.C.C.2d 505.
Fowler, M.S. & Brenner, D.L. (1982). A marketplace approach to
broadcast regulation. Texas Law Review 60, 207-257.
Friendly, F.W. (1975). The good guys, the bad guys, and the first
amendment. New York: Vintage.
Hafer, M. & Fletcher, J. (1983). An analysis of television
problems/programs lists: Is station compliance pro forma? Journal
of Broadcasting, 27(3), 291-296.
Heller, M.A. (1981). An argument for elimination of ascertainment
requirements. Journal of broadcasting 25(1), 71-81.
Meyer, R. (1962). Reaction to the "Blue Book." Journal of
Broadcasting, 6(4), 295-312.
National Broadcasting Co. v. United States, 319 U.S. 190 (1943).
Office of Communication of United Church of Christ v. Federal
Communications Commission, 359 F.2d 994 (D.C. Cir., 1966).
Paglin, M. (1989). A legislative history of the Communications Act
of 1934. New York: Oxford University Press.
Powell, J. & Gair, W. (Eds.). (1988). Public interest and the business
of broadcasting. New York: Quorum Books.
Red Lion Broadcasting C. v. Federal Communications Commission,
359 U.S. 367 (1969).
Smith, K. (1989). Why ascertainment failed. Communications and
the Law, 11(2), 49-59.
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