AIRTIME: Making Localism Illogical

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The FCC is considering new “localism” rules that have raised the ire of broadcasters. The regulations would presumably get broadcasters more in touch with their audiences, but broadcasters say the rules would bankrupt some smaller operations and restrict free speech. Below is an excerpt from a response to an FCC notice for a proposed rulemaking, written by attorneys John M. Pelkey and Daniel J. Margolis; they represent Broadcast Co. of America (BCA), whose chief executive has had an attributable interest in numerous FCC licenses over the last 30 years.

The most eye-catching proposal made by the FCC in the Localism Notice for Proposed Rulemaking is the proposal to require each broadcaster to construct and operate a main studio in each of its communities of license. So if, for example, the broadcaster were licensee of five stations in a market and each of those stations had a different community of license, it would be required to construct and operate five separate main studios.

Coupled with the FCC's policy requiring each studio to be staffed by two full-time employees, the broadcaster could be required to expend more than a million dollars per year in operating expenses, plus the costs of construction. Given the current state of the broadcast industry and the economy, such a result would be catastrophic.

There is no need, however, to adopt a requirement. Broadcasters have proved themselves to be heavily involved with their communities. It is these types of relationships, and not the location of a building, that is important.

Most studios, regardless of their locations, receive very few visitors other than contest winners, advertisers and people who are being interviewed. The lobbies of radio studios are notoriously boring places. It is like going to the doctor's office. To think that placing a studio in a community of license will increase interaction between the station and the community is unrealistic.

In the proposed rulemaking, the commission also mentions that it is “considering requiring that licensees maintain a physical presence at each radio broadcasting facility during all hours of operation.” The commission contends that would increase the ability of stations to provide information of a local nature, particularly during local emergencies. In fact, marginally performing stations are able to provide overnight programming simply because the costs required to keep those stations on the air at a time when few people are listening are kept to a minimum. If the commission requires that such a station be staffed overnight, the stations become financially untenable.

The commission proposes that stations convene community advisory boards consisting of officials and leaders from all segments of the community. As proposed, stations would meet quarterly with their advisory boards to determine matters of local interest to be covered in programming.

That is a potentially divisive means of soliciting local input. While community advisory boards could initially be helpful in providing the reaction of some community members to the station's public affairs and news programming, their utility would quickly diminish. The prospect is real that the boards would degenerate into a forum on entertainment programming and preferences. This, the commission has long recognized, is an area left to the exclusive domain of the licensee, without government intervention or interference.

Imposition of a community board raises the specter of control—and abdication of control—over programming. Members of community boards could force broadcasters to air what licensees do not believe to be in the public interest or consistent with the interests of their target audience. Armed with the imprimatur of government, members might use their seats to bully stations into airing material that favors their own niche causes and special interests. The threat of a challenge to the renewal application would force many broadcasters to capitulate to such demands.

In part because of the protections afforded by the First Amendment and Section 326 of the Communications Act, programming decisions are to be made by the broadcaster, without second-guessing or other intrusion into the broadcaster's editorial discretion by the government. For example, if a broadcaster decides to air a public affairs program and a member or, even worse, a majority of the members of the advisory board concludes that the program is too liberal, is the broadcaster required to cease airing it?

If it does not, is it leaving itself open to a petition to deny claiming that it is ignoring the input of the community advisory board? Can its renewal be challenged on that basis? In any event, will the mere filing of the petition to deny with the commission mean that the renewal application will, like so many television renewal applications in the last renewal cycle, be held up for years?

The commission mentions, as an alternative to community boards, involvement in organizations by station management. It is unclear whether the commission proposes to require such participation. It is abundantly clear, however, that community involvement should not be forced upon licensees by federal fiat. In 75 years of regulation, the FCC has not seen fit to require station management to be members of Kiwanis, the United Way, the Jaycees or the American Legion. There is no compelling reason for this commission to require it, on this record, at this time.

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