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Article Section 1

PACE LAW REVIEW

Comment

THE PUBLIC INTEREST, CONVENIENCE, OR NECESSITY: A DEAD STANDARD IN THE ERA OF BROADCAST DEREGULATION?

Section I

Pace University School of Law

Summer, 1990

Marc Sophos [FNa]

Vol. 10 No. 3 Page 661

Citation: 10 Pace L. Rev. 661 (1990)

Copyright 1990 by the Pace Law Review; Marc Sophos

You can also read this article in pdf format.

The [Federal Communications] Commission, if public convenience, interest, or necessity will be served thereby, . . . shall grant to any applicant therefor a station license provided for by this act. [FN1]

I. Introduction

The Communications Act of 1934 [FN2] established the Federal Communications Commission [FN3] and directed it to license broadcasting stations using as its standard "the public convenience, interest, or necessity." [FN4]  Although the standard is somewhat vague, the Commission developed a number of policies designed to protect the public interest as it is served by broadcasting. [FN5]  However, during the 1980s, a mood of deregulation and free-market competition swept through Washington, and much of the broadcast regulation designed to ensure that radio and television stations serve the public interest, convenience, or necessity was eliminated. [FN6]  In many cases, regulations were eliminated to reduce what broadcasting stations themselves considered overly burdensome requirements. [FN7]  However, the Commission also eliminated or substantially relaxed regulations designed to promote the public interest through diversity of viewpoint, programming, and ownership, something it has long considered important. [FN8]  This Comment will focus on three specific deregulatory actions the Commission has taken in recent years: the relaxation and elimination of the multiple ownership rule; [FN9] the relaxation of the radio duopoly rule; [FN10] and the relaxation of the one-to-a-market rule. [FN11]

Section II of this Comment will provide a brief overview of the history and evolution of broadcast regulation and the public interest standard, and will describe some of the policies the Commission adopted to ensure that stations would serve the public interest; Section III will describe the elimination or relaxation of these policies; Section IV will describe twenty-four hour satellite radio programming services, a recent development which has had a substantial impact on the broadcasting industry and on its service of the public interest; and Section V will analyze the status of the public interest standard in light of the Commission's deregulation of the broadcast industry.


Foonotes

FNa This Comment is dedicated to the memory of Eric William Didul (1968-1990). During his short life, Eric developed a real love for broadcasting, and a dedication to its betterment. Those of us who are fortunate enough to have known him are left to speculate on what he might have accomplished.  Return

FN1. Communications Act of 1934, 47 U.S.C. 307(a) (1982 & Supp. V 1987).  Return

FN2. 47 U.S.C. 151-805 (1982 & Supp. V 1987).  Return

FN3. Id. 151. The Act gave the newly formed Commission broad jurisdiction to regulate "interstate and foreign communication by wire or radio" as described in the Act's title. Within this jurisdiction were radio broadcasting (Subchapter III) and common carriers (Subchapter II), among other things. Television, in its infancy at the time, was not mentioned specifically in the Act; however, television uses radio frequencies for transmission. See, e.g., S. HEAD, BROADCASTING IN AMERICA 31, 34, 51-52 (3d ed. 1976). Television thus came within the Commission's jurisdiction over radio broadcasting. Transmission by government-owned stations was excluded from the Commission's jurisdiction. 47 U.S.C. 305. Cable television did not exist when the Act was passed; however, as this technology developed and started to play an increasing role in the communications marketplace, the Commission asserted jurisdiction over it. Cable Television Report and Order, 36 F.C.C.2d 143 (1972).  Return

FN4. 47 U.S.C. 307(a) (1982 & Supp. V 1987).  Return

FN5. For example, the nonentertainment programming guidelines, 47 C.F.R. 0.281(a)(8) (1982), which required stations to program a prescribed amount of nonentertainment (generally news and public affairs) programming; the requirement that stations maintain their main origination studios within their communities of license, 47 C.F.R. 73.1125 (1986), which was intended to ensure that stations would stay in contact with their communities of license; the ascertainment rules, 27 F.C.C.2d 650 (1971), 53 F.C.C.2d 3 (1975), 57 F.C.C.2d 418 (1975), and 61 F.C.C.2d 1 (1976), which required that stations conduct formal studies every year to determine the significant problems and needs of their communities and develop programming designed to address those problems and needs; and the anti-trafficking provision, 47 C.F.R. 73.3597 (1982), which strongly discouraged licensees from selling their stations unless they had owned them for at least three years. This provision was intended to ensure that licensees maintained a commitment to the public interest in the community of license; the Commission considered ownership turnover in less than three years inimical to the public interest. Report and Order, 32 F.C.C. 689, 690-91 (1962).  Return

FN6. Such eliminations included: the nonentertainment programming guidelines, 84 F.C.C.2d 968 (1981); the main studio rule, 2 F.C.C. Rec. 3215 (1987); the ascertainment requirement, 84 F.C.C.2d 968 (1981); and the anti-trafficking provision, 52 Rad. Reg. 2d (P & F) 1081 (1982).  Return

FN7. For example, stations argued that they could, and would, ascertain the problems and needs of their communities without a formal procedure imposed by the Commission. See Deregulation of Radio, 84 F.C.C.2d 968, 1076-77 (1981); cf. S. HEAD, supra note 3, at 354.  Return

FN8. See Multiple Ownership of Standard, FM and Television Broadcast Stations, 22 F.C.C.2d 306, 310 (1970); Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393 (1965).  Return

FN9. Report and Order, 100 F.C.C.2d 17 (1984) [hereinafter the Multiple Ownership Decision].  Return

FN10. Report and Order, 4 F.C.C. Rec. 1723 (1989) [hereinafter the Duopoly Decision].  Return

FN11. Report and Order, 4 F.C.C. Rec. 1741 (1989) [hereinafter the One-to-a- Market Decision]. The one-to-a-market rule was also known as the radio/television cross ownership rule. Id.  Return