In December 1999, the Federal Communications Commission issued a Notice of Inquiry on the public interest obligations of digital television broadcasters. Public Interest Obligations of TV Broadcast Licensees, Notice of Inquiry, MM Docket No. 99-360, FCC 99-390 (adopted Dec. 15, 1999). This Notice was issued just one year after release of the Final Report of the president’s Advisory Committee on Public Interest Obligations of Digital Television Broadcasters (popularly known as the Gore Commission). See Charting the Digital Broadcasting Future, available at < The 1999 Notice of Inquiry is described in The First Amendment and the Media - 2000.

    Pursuant to this Notice of Inquiry, on Oct. 5, 2000 the FCC took three actions on aspects of such public interest obligations.

Standardized Disclosure Requirements

    First the Commission proposes to standardize and enhance public interest disclosure requirements for television broadcasters. Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, Notice of Proposed Rule Making, MM Docket No. 00-168, FCC 00-345 (rel. Oct. 5, 2000) ("Disclosure NPRM").

    The FCC’s tentative conclusion is to require station licensees to fill out, on a quarterly basis, a new standardized form providing information on how the station serves the public interest in a variety of ways. The form would replace the currently required issues/programs lists in the station’s public inspection files. The licensee also would have to make this form available on its own or a state broadcasters association’s Internet Web site. The FCC’s stated intent is to ìenhance the public’s ability to access information on the extent to which broadcasters are serving the public interest.î Disclosure NPRM, at para. 3.

    The proposed standardized form would ask questions about certain categories of programming and include a ìcatch-allî category for public interest programming that does not fit neatly into one of the categories to be defined. The FCC seeks comment on what categories to include, referring to proposals from the Gore Commission, but tentatively concludes that the new form should include information on broadcasters’ provision of closed captioning and video description. The Commission also seeks comment on whether broadcasters should provide on the form a narrative description of their actions taken to assess a community’s programming needs and interests, and a description of their community service activities.

    Commissioner Harold Furchtgott-Roth concurred in the Disclosure NPRM only insofar as the transition to digital television necessitates clarification of broadcasters’ public interest obligations. He noted, however, that the transition does not provide any basis ìfor increasing or otherwise changing the nature of broadcasters’ public interest duties ... [T]he Commission seems to be using the fact of the transition as a Trojan horse for increased regulation of broadcasters.î Id., Statement of Commissioner Harold W. Furchtgott-Roth.

    Commissioner Furchtgott-Roth also ìhighlight[ed] the clear and present First Amendment danger posed by the concept of breaking out categories of programming on broadcasters’ FCC formsî that would create a ìsoft quotaî on ìFCC-favored contentî and ìcoercion to air certain kinds of programming.î He ìstrongly urge[d] broadcasters to resist this potential incursion on their editorial rights.î Id.

    Commissioner Michael Powell voiced similar concerns and reservations but nonetheless joined the Disclosure NPRM. Id., Separate Statement of Commissioner Michael K. Powell. Commissioner Gloria Tristani wanted the standardized forms submitted directly to the FCC without information on non-broadcast community activities. Id., Separate Statement of Commissioner Gloria Tristani.

    The Commission made a number of changes to the children’s educational television reporting requirements of commercial broadcast television licensees. Extension of the Filing Requirement for Children’s Television Programming Reports (FCC Form 398), Report and Order and Further Notice of Proposed Rule Making, MM Docket No. 00-44, FCC 00-343 (rel. Oct. 5, 2000). First the FCC extended indefinitely its formerly experimental requirement that commercial broadcast television licensees electronically file quarterly Children’s Television Programming Reports (FCC Form 398).

    Moreover, these reports now must be filed on a quarterly basis, as they are prepared, rather than annually. Finally, the FCC revised its reporting form to make it clearer and more useful. The new form specifically includes information about licensees’ preemption and rescheduling of core children’s educational programming, and about information licensees provide about such programming to publishers of program guides.

    These changes were made to ìfacilitat[e] monitoring by the FCC and the public of the amount and quality of educational television programming for children and industry compliance with the Commission’s children’s educational programming requirements.î Id. at para. 1. The Commission noted that a variety of organizations ìuse the reports to track national trends in children’s television programming and to develop tools to inform parents and others about children’s programming.î Id. at para. 10.

    Chairman William E. Kennard would have added a requirement that broadcasters describe their efforts to increase the public’s awareness of children’s programming as disclosed in their reports. Id., Statement of Chairman William E. Kennard. Commissioner Furchtgott-Roth dissented from extending any filing requirement because ìthe record revealed scant evidence that these reports accomplish the Commission’s asserted goals, including helping parents plan their children’s television viewing.î Id., Dissenting Statement of Commissioner Harold W. Furchtgott-Roth.

    Commissioner Powell supported continuation of the reporting obligations and the change from an annual to a quarterly filing. But he emphasized that the enhanced reports cannot be viewed as facilitating enforcement of children’s programming requirements because there is no such enforcement. The FCC rules on children’s television are just ìprocessing guidelinesî -- a broadcaster who offers three hours of regularly scheduled children’s educational programming per week simply enjoys a ìsafe harborî for license renewal. Id., Separate Statement of Commissioner Michael K. Powell. Commissioner Tristani would have required broadcasters to state with specificity and in detail the efforts they have undertaken to make the information in the reporting form available to viewers and parents. Id., Partial Dissent of Commissioner Gloria Tristani.

    Finally, the FCC sought comment on the obligation of television broadcast licensees to provide educational and informational programming for children and the requirement that they limit the amount of advertising in children’s programs. Children’s Television Obligations of Digital Television Broadcasters, Notice of Proposed Rule Making, MM Docket No. 00-167, FCC 00-344 (rel. Oct. 5, 2000) ("Children’s Television NPRM").

    Here the Commission first concludes that digital broadcasters are subject to all the requirements the FCC has imposed up to now on analog broadcasters under the Children’s Television Act of 1990. These include commercial limits and the provision of appropriate educational and informational programming. Digital broadcasters also must comply with Commission policies regarding program-commercial separation, host selling, and program-length commercials. Children’s Television NPRM, at para. 12. The purpose of the Children’s Television NPRM, then, is ìto determine how these requirements should be interpreted and adapted with respect to digital broadcasting in light of the new capabilities made possible by that technology.î Id.

    First the FCC invited comment on how the current guideline for three hours per week of children’s core educational programming should be applied in light of the ìmyriad of possible ways that broadcasters may choose to use their DTV spectrum.î These could include multicasting several simultaneous program streams and mixing pay and free services. Id. at para. 15. The Commission discussed several proposals including a ìpay or playî model under which broadcasters could either meet the quantified core programming obligation through their own programming or pay other networks or channels to air additional such programming, or a combination of both. Id. at para. 20.

    Next the Commission inquired as to how it should treat broadcasters’ preemption of ìregularly scheduledî core programming and the rescheduling and promotion of preempted programming, given the increased flexibility multicasting digital broadcasters will enjoy. Id. at paras. 25-28. As to commercial limits, the FCC asked ìwhether children’s advertising limits and policies should apply only to free over-the-air channels, or to all digital channels both free and pay.î Id. at para. 30. The Commission also asked whether ìcommercial matterî should be defined to include certain types of program interruptions (such as program promotions) as counting toward the commercial limits. Id. at para. 33.

    The Commission also asked whether there were steps it could take ìto ensure that programs designed for children or families do not contain promotions for broadcast, cable or theater movies or other age-inappropriate product promotions that are unsuitable for children to watch.î Id. at para. 36. Such promotions, for example, could themselves be rated and encoded so they could be screened by V-chip technology. Finally, the FCC asked what steps it could take to increase public awareness of the availability of core educational programming and how to locate it. Id. at para. 38.

    Commissioner Furchtgott-Roth described this Children’s Television NPRM as a ìmissed opportunity. It should read: ‘Here are the old rules that are no longer necessary for digital broadcasting.’ Instead, it reads: ‘Here are additional burdensome rules that will discourage and delay digital broadcasting.’î The increased burdens are ìboth ill timed and technologically misdirected.î Id., Separate Statement of Commissioner Harold W. Furchtgott-Roth, Concurring in Part and Dissenting in Part.

    Commissioner Powell also thought it ìpremature to attempt to fix public interest obligations to a service that has yet to blossom.î And he expressed ìcaution against introducing subjective tests that require the Commission to make value judgments about the appropriateness of certain content for children’s viewing.î Id., Separate Statement of Commissioner Michael K. Powell. Commissioner Tristani questioned whether, in light of the additional program capacity of digital technology, a three-hour guideline is sufficient, and whether a broadcaster’s core programming should be distributed among more than one, or all, of the broadcaster’s program streams. Id., Separate Statement of Commissioner Gloria Tristani, Concurring in Part and Dissenting in Part.

    These and other issues involving the public interest obligations of digital television broadcasters are sure to persist in 2001.