TRANSCRIPT OF PROCEEDINGS
TAKEN ON JUNE 8, 1998
AT 9:38 A.M.
Morning Session
[Click to view the afternoon session]
Reported by:
BARBARA J. STROIA, RPR
2
TRANSCRIPT OF PROCEEDINGS, taken
on the 8th day of June, 1998, commencing at 9:38
a.m., at the Marquette Hotel, 710 Marquette Avenue,
Minneapolis, Minnesota, before Barbara J. Stroia,
notary public.
APPEARANCES
MR. LESLIE MOONVES, Co-Chair,
President and CEO, CBS Television.
MR. NORMAN J. ORNSTEIN,
Co-Chair, Resident Scholar, American Enterprise
Institute.
MR. CHARLES BENTON, Chairman and
CEO, Benton Foundation, Public Medica, Inc.
MS. PEGGY CHARREN, Visiting
Scholar, Harvard University Graduate School of
Education, Founder, Action for Children's
Television.
MR. HAROLD C. CRUMP, Vice
President, Hubbard Broadcasting, Inc.
3
MR. FRANK H. CRUZ, Vice
Chairman, Corporation for Public Broadcasting.
MR. ROBERT W. DECHERD, CEO,
Chairman of the Board and President, A.H. Belo
Corporation.
MR. BARRY DILLER, Chairman and
CEO, HSN, Inc.
MR. WILLIAM F. DUHAMEL, Ph.D.,
President, Duhamel Broadcasting Enterprises.
MS. KAREN EDWARDS, Designated
Federal Officer, NTIA.
MR. ROBERT GLASER, Chairman and
CEO, RealNetworks, Inc.
MR. JAMES FLETCHER GOODMON,
President and CEO, Capitol Broadcasting Company,
Inc.
MR. PAUL A. LA CAMERA, President
and General Manager, WCVB-TV.
4
MR. RICHARD MASUR, President,
Screen Actors Guild.
MR. NEWTON N. MINOW, Professor,
Communications Policy and Law, Northwestern
University, Counsel, Sidley & Austin.
MR. JOSE LUIS RUIZ, Executive
Director, National Latino Communications Center.
MS. SHELBY SCHUCK SCOTT,
President, American Federation of Television and
Radio Artisits.
MS. GIGI B. SOHN, Executive
Director, Media Access Project.
MS. KAREN PELTZ STRAUSS, Legal
Counsel for Telecommunications Policy, National
Association of the Deaf.
MR. CASS R. SUNSTEIN, Karl N.
Llewellyn Distinguished Service Professor,
University of Chicago law School.
5
MS. LOIS JEAN WHITE, President,
National Parent Teacher Association.
MR. JAMES YEE, Executive
Director, Independent Television Service.
* * *
6
CHAIRMAN MOONVES: It is June 8,
1998. We are in Minneapolis, Minnesota. First
of all, I'd like to thank Mr. Crump for his
fine hospitality. Great to be in your fine
city, and you've done a spectacular job and,
we're very happy to be here.
In addition, Rob Glaser in RealNetwork,
we'd like to thank them for sponsoring this
broadcast on the NTIA website.
Frank Blythe will not be here, and Barry
Diller will be participating via telephone, as
will Richard Masur and Shelby Scott from
Geneva, Switzerland. Are we trying to get in
touch with them now via the operator?
MS. EDWARDS: Yes, we are.
CHAIRMAN MOONVES: So because
three of the members will be joining us by
telephone, please identify yourselves so they
will know who is talking.
In a moment, Norm is going to talk about
the process we would like to do, take today in
terms of an outline that he has drawn up about
the various issues. I'd like to thank all the
members for participating, and there's a lot of
very good thought put into the process. I'd
7
like to thank Norm for drawing up an outline
which at least gives us the framework to begin
our discussions today because I think there
will be a lot of interesting things to come out
of it.
As you know, our next meeting officially
was scheduled for September. There is a real
possibility -- and it depends on what happens
today and in the next few weeks -- there's a
real possibility we may have to add a meeting
in August, so we should leave open that
possibility. Once again, that's something that
we won't be able to determine for a few weeks
to see how close to a consensus we are. As I
said, my guess is we probably will need another
meeting.
And Norman, I will turn it over to you,
your opening remarks.
CHAIRMAN ORNSTEIN: Thanks very
much, Les. I also want to thank Harold, and I
urge all of you to look out the window and see
the beautiful lakes that makes this the area
of -- it's actually more than 11,000 lakes, but
for public relations purposes, they've said
10,000 lakes. I speak as a native of this
8
state born in Grand Rapids, Minnesota, the
birth place of Francis Gump. People here know
some others, Judy Garland, of course. But I
find whereever I go, people ask me why there is
a typo on my resume when it should be
Grand Rapids, Michigan. So it's good to be in
a place where they know the reality here.
As Les suggested, we're going to try to
work through the major areas that we have
identified and that you have identified as core
of what we might recommend here and try to come
as close as we can to reaching understanding on
both the broad ones -- some areas we clearly
already have -- and as many of the specifics as
we possibly can. I think the process that
we'll follow is at the conclusion of this
meeting, we will canvas all of our members
again and see where we are.
The meeting, I suspect, will be just like
our previous ones in that it will not be simply
an opportunity for members to exchange views,
but we will -- we all learn from and change, to
some degree, our perspectives, and so we may
have somewhat different ideas, especially on
some of these specifics.
9
And from that, over the course of the few
weeks that will follow, Les and I will canvass
you all again, talk amongst ourselves, begin a
drafting process, we hope, and it's quite
possible, although nowhere near certain from
that, that we'll actually be in a position
where we won't have to have another meeting.
But at this point, it is also something we
needed to reserve. Yes, Bill?
MR. DUHAMEL: How are we going
to do the drafting process? I don't understand
that.
CHAIRMAN ORNSTEIN: We are in
the process of -- our staff has been in the
process for a while of taking bids from
professional writers who have both been
experienced in drafting reports of this sort
for different advisory committees and who are
knowledgeable in this area, and they are going
to pick some individual or two.
It's possible it will be an individual to
do a lot of the first drafting, and then
somebody else will work the production through
because we're on a fairly tight time frame.
That's all for drafting purposes, and
10
obviously, we circulate whatever comes out of
that among the group we hope several times
along the way.
MR. DUHAMEL: Of course I know
dealing with my lawyers they say the power of
the first draft is important. That's why we
always have our lawyer do the first draft. Who
does the draft is important in this.
CHAIRMAN ORNSTEIN: There's no
question about it. This is, from what I can
gather, the practice that is normally followed
with advisory committees.
MR. DUHAMEL: Which writers are
we looking at?
CHAIRMAN MOONVES: Karen has
brought a number of writers to our attention.
And once again, Bill, I think the important
thing is -- and I don't disagree with you in
terms of the first draft -- the important thing
is we will all have ample time to comment in
great detail to every line in that draft.
CHAIRMAN ORNSTEIN: We have left
it up to our staff to go through a professional
process of picking the writers here. We're not
doing it. So if you're suspicious that either
11
Leslie or I are going to try to manipulate this
process so that we can have our lawyers do it,
rest assured that this is being handled at a
different level. Anyhow --
CHAIRMAN MOONVES: By
nonmanipulative persons.
CHAIRMAN ORNSTEIN: Having gone
through the calendars that we have generally
pretty much settled on, it appears -- of course
it's difficult to find any date in the summer
when we can get the vast bulk of our members
together -- it appears that August the 5th,
Wednesday, August the 5th, seems to be the date
that works for the most members. It's a
Wednesday. I'm sorry that it's a Wednesday.
We tried to pick something that had the least
absences, and I'm sorry that it's a Wednesday.
It's just one of those things that happens.
By the way, Barry Diller is now joining
us. Here's not in Geneva, he's in Los Angeles,
I think, but welcome, Barry.
We were saying that we were going to try
and go through the areas today that we think
will possibly comprise the core of any report
recommendations that we'll make, try and come
12
as close as we can today to a consensus on the
larger issues and some of the specifics.
If we can't, in the weeks that follow,
begin to pull things together, if there are a
few areas even where there are serious matters
of contention among the members, then we're
going to reserve the date of Wednesday,
August 5th for another meeting. So let's -- if
you can, just simply put that aside and hold it
on your calendars.
MR. RUIZ: For those of us who
finance our own -- (inaudible) -- it's a $1,700
ticket.
CHAIRMAN MOONVES: If it doesn't
go through a Saturday?
MR. RUIZ: Yeah.
MR. DUHAMEL: $1,500 from Kansas
City.
CHAIRMAN ORNSTEIN: Well, we'll
try to figure out something or work with you as
best we can. We've set out in all of our
meeting to try and pick dates that would
facilitate weekend travel. This one we may not
even have the meeting, but this just seemed to
be the date that worked the best.
13
MR. DUHAMEL: What about the
following Monday?
CHAIRMAN ORNSTEIN: I'll give
you a couple of tricks.
MR. DUHAMEL: Monday the 10th,
which would allow a Saturday night stay
Saturday night stay. There's an alternate date
listed there of Monday the 10th when Paul La
Camera --
MS. EDWARDS: I think we were
trying to keep it as close to the beginning of
August as possible, I think the thinking there
that you would need a final meeting. So the
thought would be end of July, which is
absolutely impossible.
MR. DUHAMEL: The middle of the
week is an expensive trip, while a Friday or a
Monday, you know, allows a Saturday night stay,
and it literally makes a difference of $1,200,
you know, between $1,500 and $300.
CHAIRMAN ORNSTEIN: Yeah, it is
a big difference. We wanted to make this late
in July if we could.
CHAIRMAN MOONVES: I think the
five days between the 5th and the 10th.
14
CHAIRMAN ORNSTEIN: All right.
CHAIRMAN MOONVES: Change to the
10th.
CHAIRMAN ORNSTEIN: That one
doesn't work for you, Paul? Can you phone in?
MR. LA CAMERA: I'll be in
Sicily. It might be difficult.
CHAIRMAN ORNSTEIN: Well, we've
got two phoning in from Geneva. I don't know.
We've set precedent.
CHAIRMAN MOONVES: We may need
some help from Sicily at that point.
CHAIRMAN ORNSTEIN: Let's see if
we can get that outline.
MS. EDWARDS: Yes, we'll do that
today, Xerox that.
CHAIRMAN ORNSTEIN: Well,
let's -- I think we ought to start with the
Code of Conduct.
CHAIRMAN MOONVES: Did you pass
out the outline?
CHAIRMAN ORNSTEIN: Yeah, it's
being Xeroxed now.
MS. CHARREN: Can I ask one
question? I take it that the date of the
15
September meeting--
CHAIRMAN ORNSTEIN: We're not
going to set that yet until we see where we
are. We'll work that one through.
We have had a couple of task forces
working and doing a tremendous amount in the
last couple of weeks so that we could try and
take the areas where we clearly seem to have an
overall agreement, a voluntary Code of Conduct
and some variation of the education proposal
that both Gigi and Robert came up with and work
through some of the details to try and come up
with as much as we can before this meeting. So
maybe we should start and spend as much time as
we need to, certainly this morning, on those
two, and perhaps we should start with the Code
of Conduct.
You have all seen, I hope, and read the
draft that Cass Sunstein, who chaired this
committee and put a tremendous amount of work
into coming up with hopefully some
understanding for us of the antitrust issues
here, and reading, in particular, that letter
from Sheila Anthony, the head of the antitrust
division, on why we had controversies over
16
antitrust questions in the Code of Conduct. It
at least made it clear to me that we shouldn't
have any difficulties with what we're doing
here. That was a very narrow question of
trying to preclude -- basically trying to raise
the price of advertising, which I don't think
we need to worry about, but we can easily come
up with a rationale there, and with a draft of
specifics of the code, including how it might
be monitored and enforced down the road.
And Cass, maybe you could start with a few
minutes on what you did and where you are. And
we also have now a fairly interesting proposal
that perhaps Jim Whitman can discuss on the
table, specifically for minimum level of
obligations, but let's hear from Cass first.
MR. SUNSTEIN: Yeah, I wanted to
make sure that the members of the Broadcasting
Task Force got copies first. So all of the
members of that task force have had faxed to
them what I did.
The rest of you may or may not have it.
I'm not sure.
MS. SOHN: We haven't gotten it.
MR. SUNSTEIN: Okay. Is it
17
being copied now, Karen, for everybody?
MS. EDWARDS: Did you want
everyone to have a copy?
MR. SUNSTEIN: Yeah, let's make
a copy for everybody. I wanted to make sure
that the task force people had a crack at it
first, but let me just describe it. It's very
simple.
The first idea is that this idea of codes,
actually, has a very long history. What
surprised me was that the 58 Code was a
successor to a long series of practices of
self-regulation in the broadcasting industry
that were followed until the antitrust
challenge, so there's a discussion of the
history here. So it wouldn't surprise you the
concerns that have come up since 1923 or so are
about the same with changing technologies as
the concerns that we have.
The antitrust issue is more easily
remedied and less of a concern than I and I
think some others had feared. The lower
court's opinion, district court opinion,
involved a narrow segment of the old code; that
is, that segment that seemed to control
18
advertising time in the interest of driving up
advertising revenue. So it really wasn't an
antitrust challenge. The Justice Department
didn't bring an antitrust challenge to those
parts of the old code that tried to protect
programming content. It was about restrictions
on advertising time. It seemed like a
traditional form of collusion. That's what the
court held.
There are two lower court opinions, also,
upholding content controls as against antitrust
challenge, and there's a Justice Department, an
official position by the Justice Department in
1993, suggesting that efforts to regulate
violence on television through something like a
code wouldn't create an antitrust problem.
So the basic idea is that the kind of
restrictions that we're talking about; that is,
voluntary restrictions, would probably have
little adverse effect on competition, they'd
allow a large room for competition among the
signatories to the code, and they would
probably be upheld under the Rule of Reason,
which the antitrust law applies to regulations
of this kind.
19
There's a lot of technical detail here,
but I think it would really be boring. So just
the bottom line is the antitrust concern isn't
trivial, but it's not a lot more than trivial.
There's an important First Amendment
notation that should be added here, which is
that if there's a sense that the government is
mandating this code or imposing it on threat of
coercion, then the First Amendment kicks in.
The code, by itself, so long as it's genuinely
voluntary, raises no First Amendment problem at
all. But if there's a sense that we're
threatening or mandating a code, then there is
a problem, so this has to be handled very
delicately as a suggestion, which if adopted,
would be adopted only voluntarily and without
any coercion in the background.
With respect to the content of the code,
basically what I've done is to take the old NAD
code to delete the provisions that seem
unrelated to our concerns, to take away those
provisions that raise antitrust problems and
basically to do maybe a tiny bit of tinkering
and updating with those old provisions of the
code that seem connected with what our mission
20
is about.
I guess the way to think about this is
that there's a general principles and rationale
section which is a very slight amendment of the
old NAD code. Then there are substantive
provisions for which maybe the most important
to us involve responsibility to our kids and
covering elections. Those that have been kept
tried to steer middle course between the
vacuous and the unduly specific.
And then there's a provision on
enforcement, which is very much like the old
NAB enforcement provision, but it's put in a
little more in the way of carrots; that is,
rewards for good programming and a tiny bit
more in the way of at least symbolic sticks in
the form of notification to the FCC of
egregious or continuing violations,
notifications which are, by themselves,
entirely without legal force and effect.
That's very important, maybe a First Amendment
problem otherwise.
I'm not sure what way to organize the
discussion, but we have provisions here which
have been based on our previous discussions and
21
some informal discussions between me and some
of you. But basically, these are, you know, an
introduction to discussion, and I bet we can do
a lot better. They're just my, with
consultation, minor revisions to the old NAB
codes with a few editions.
CHAIRMAN ORNSTEIN: Okay. I
think there are, clearly, several areas we need
to consider, Cass.
We need to consider the substance of the
code itself, what we would recommend
specifically, go into it in each of these
areas. We need to consider what follows from
the code, including reporting requirements of
public interest activities and how we want to
frame those, and we've had some discussion of
that, as well as monitoring the performance and
highlighting the adherence here.
And I think with that, especially given
your admonition about the First Amendment
considerations, we need to have some discussion
of how we can keep this a voluntary process
while making sure that it achieves -- or if not
making sure, enhancing greatly the chances that
it will achieve what we want it to achieve,
22
which is stations adhering to the code.
MR. SUNSTEIN: Right. It should
be voluntary. Our relationship to the
broadcasting industry should be one of
recommendation and nothing else.
CHAIRMAN ORNSTEIN: Yes.
MR. SUNSTEIN: It is fine if the
broadcasting industry makes the code mandatory
on its members. So self-enforcement that has
strict punishment, so long as it's not
government mandates, that's fine.
CHAIRMAN ORNSTEIN: What if we,
as an independent body, but which has its
genesis in the federal government, recommended,
not only that broadcasters create a code, but
that it be taken into account in the license
removal process.
MR. CRUMP: This is what
occurred, you may recall, in the old code.
This is exactly how it was handled. It was
strictly a voluntary basis on the part of the
broadcaster, but there was a little section in
the old license renewal form where you had to
indicate whether or not you were a code
member. And if you were not, it simply opened
23
the door for perhaps further investigation, and
usually did, on the part of the FCC at license
renewal time. So you had an implied situation
there that I think this is good.
CHAIRMAN ORNSTEIN: I'll give
you my own. This is a personal preference.
What I would like to see happen down the road
is that if you end up with stations that fall
way below any of the minimum standards that we
set that, in effect, you turn around the
license renewal process. The burden goes to
the broadcaster to show why he has not come
anywhere close to this, and in a way,
strengthening what became the practice of the
FCC under Chairman Wiley when stations were not
performing their public interest obligations,
the license renewal got racheted up to the
level of the commissioners themselves.
MR. CRUMP: Well, I would remind
you again that under the old code, the way it
was enforced, the code itself had it's own
enforcement wing, and they pushed this and they
did mean it. They did put clamps on the guy.
It was not a government regulatory portion at
all.
24
CHAIRMAN ORNSTEIN: Right.
Well, we don't want to make it that. Clearly,
the other area we need to discuss is what kind
of enforcement wing would emerge in the
industry itself.
MS. CHARREN: Peggy Charren.
There's some aspects of the codes that are very
easily enforced, especially if they tend to be
taught the numerical way of thinking about
content, some percent of, or you must do this
when it's very specific, just the way the
advertising limits in the Children's Television
Act are carefully enforced by the FCC and
stations are getting fined for going over those
limits. That's an easy thing to count.
When it comes to defining for the FCC to
talk about the educational programmings,
they're going to find that very tough if they
try to do it, and that's always a part of the
problem of that law because that's, you know,
that's one person's opinion versus somebody
else's.
There are aspects of the old code, like
the description of how to serve children, that
were never paid any attention to. They
25
actually sounded like I wrote them, and if they
were happening during the 30 years that I was
in business, I never would have started to
act. It was a very nice description of what
the public interest obligation to children
was. I'm looking at Paul La Camera who
understood them and started the life of that
station when it was taken over by -- what was
it called?
MR. LA CAMERA: Boston
Broadcasting.
MS. CHARREN: Boston
Broadcasting with a daily children's program.
So there are some broadcasters who do pay
attention to even the soft and fuzzy language.
But when they don't, I suggest that it's
going to be impossible even for the industry to
say they're not doing it, and that we shouldn't
think that that part of the code, which is
different from some discussion of free time
maybe, which is easy to see if they're doing
that or not doing that, that came into the
code.
That will never work, and just as a
commission, we should understand that it will
26
never work to be enforced. I don't mean it's
illegal, but we'll never be able to enforce it,
so that we shouldn't have that as the way we
think that that programming is going to
happen.
CHAIRMAN ORNSTEIN: We also have
to consider what our alternatives realistically
are, and I think, frankly, there are always
going to be areas of subjectivity where form
location alone won't work.
What one has to hope in that process is if
you can have a disclosure of what stations are
doing and you have a process where outside
groups and others bring public attention to
what they feel are the failings here.
MS. CHARREN: And that's what
happened with children, but I'm just saying 30
years later it still isn't fixed.
CHAIRMAN ORNSTEIN: Sure, but we
don't have a better way to do it.
MS. CHARREN: We shouldn't get
too optimistic about what it's going to mean
for public interest in the question.
MR. BENTON: Charles Benton.
Just to question your having raised the issue
27
from your 30 years' experience what should be,
what should we do because, clearly, to have, as
Cass said, the big question is the vacuous
issue specifically -- I thought that was a
great point. If the old description of
children's programming falls into the category
of vacuous --
MS. CHARREN: I don't mean the
description is vacuous. I mean the enforcement
has to be vacuous. That's different. Even the
description wasn't bad in the original
document.
MR. BENTON: What should be done
about that?
MS. CHARREN: What should be
done? My solution had nothing to do with the
code, and therefore, I would rather discuss
those at other parts as we go into the report.
CHAIRMAN ORNSTEIN: It is
important to emphasize that this is not the
only recommendation we're going to make here,
obviously. It interacts with the others. Some
of what you're talking about may be dealt with
with minimum standards, too. And Goodmon has a
question.
28
MR. GOODMON: Just for
information, how many stations are in the NAB?
How many are in the NAB? That's for
information purposes. I mean, there could
be -- not everybody is going to subscribe to
the code. We're not suggesting everybody has
to subscribe to the code.
Minimum standards, from my point of view,
is outside of the code, so that there's a
minimum standard for everybody. And then the
next level is in the voluntary NAB code, and
rather than having minimum standards in the
code as a voluntary basis. Maybe I'm just
missing the --
CHAIRMAN ORNSTEIN: No, if --
MR. GOODMON: But how many
stations are in the NAB, is my question? I
don't know that. Jack is --
MR. JACK GOODMAN: About 1,100
television stations.
MR. GOODMON: Out of how many
overall.
MR. JACK GOODMAN: 1,500 full
power stations.
CHAIRMAN ORNSTEIN: So 1,100 out
29
of 1,500. So what you're talking about, Jim,
is a set of minimum standards that would apply
to all 1,500, every broadcaster, every
full-power broadcaster.
MR. MINOW: Newt Minow. Jim's
point is a very good one. The best
broadcasters belong to the NAB. The worst
broadcasters do not belong to the NAB, and
you're very often preaching to the choir.
Now, I know Cass has said that it would
not be proper to require membership in the
NAB. However, I would point out under the
Securities Act, every broker/dealer must belong
to the National Association of Broker/Dealers
which is able to discipline broker/dealers for
violating its code. I don't know why that
isn't relevant -- or a relevant precedent here.
MR. SUNSTEIN: I didn't mean to
take a position on that.
MR. MINOW: I recognize the
problem. I favor mandatory membership in the
NAB.
MS. SOHN: Is that a possible
thing to do? I mean, can you make membership
mandatory?
30
MR. MINOW: Congress would have
to pass a law.
MR. SUNSTEIN: Versus who would
the "you" be. If the "you" would have to be
Congress, it would appear, and then the
question would be, would there be a First
Amendment problem if Congress required all
stations to be in the NAB with the knowledge
and hope that participation required adherence
to a code which had substantive control.
MR. MINOW: My argument, Gigi,
is I don't think broadcasters are less
important than broker/dealers, and I think if
Congress looked at it, they'd see is.
MR. DUHAMEL: It may be a First
Amendment. Broker/dealers don't have a First
Amendment.
MR. MINOW: If the NAB created
its own standards.
MS. CHARREN: Peggy Charren. I
think I understand what you're saying, and I
used to take that position about advertising to
children; that it should be like a disclosure
when you put a stock up for sale instead of
what we do.
31
But I think that in the court of public
opinion, it's better to have the broadcasters
not belong and sort of take the people who do
that kind of thing can take them apart for
being part of the -- you know, there's the 400,
the Society 400. We can have the Broadcaster
400 who put it to the industry. It's sort of a
nice way of separating the wheat from the chap
maybe.
And given that I don't think the code is
going to be a very significant way to get
public interest anyway, I don't really mind
that the broadcasters don't belong. How does a
station that just does home shopping manage to
get to be part of some wonderful series of
things that we should do in the public
interest? You're changing the whole way
broadcasting functions today by doing that.
CHAIRMAN ORNSTEIN: Of course,
one of the things, we're going to, no doubt
later on, have an animated discussion on the
pay or play issues. I mean, partly my support
for provision of that sort is because it seems
to me that stations that do shopping or
religious programming, that we'd be much better
32
off, instead of requiring them to put on the
kind of programming for which they are
ill-suited, to have them pay in lieu of those
things and put the money into better
broadcasting, although we have a wide range of
views here.
Let me just focus our discussion. We can
have a very interesting discussion about
mandatory membership, and I don't know what the
NAB's position on this would be either, but we
don't need to get into that at the moment. All
those revenues against a government mandate, an
interesting balance to strike, but let's not
discuss that now.
And since Jim has put a proposal on the
table for us, which most of us haven't read yet
about minimum standards, but this is outside of
the code. Well, at one level we might want to
consider that first. I think it is appropriate
to consider it later and give us a chance to
read it, perhaps, and discuss it after lunch.
Obviously, if we agreed on the set of minimum
standards that either fit these specifics or
came close to it, then it does change the
dynamic here in terms of the code itself as
33
well, and so that's something that we need to
come back to.
CHAIRMAN MOONVES: This is
getting away from the volunteerism, this
minimum code, is that what you're saying?
CHAIRMAN ORNSTEIN: Well, what
Jim Goodmon, I think, has thrown on the table
is a set of minimum standards that would not be
incorporated into the code, but rather be a
separate entity so that it brings in all
broadcasters, including those who are not
members of the NAB and who, therefore, don't
adhere to the code.
MR. BENTON: One factual
clarification. Charles Benton here. There are
1,541 broadcasters, as I understand it, of
which about 350 are public broadcasters. That
leaves approximately 1,200 commercial
broadcasters. I'm wondering, of the 1,100, are
these mostly commercial broadcasters? Is the
preponderance of absence among the public
broadcasters? What are the facts here, Jack?
MR. JACK GOODMAN: I don't have
that number at hand, but the large number,
there are a large number of public
34
noncommercial stations in membership, but the
percentage of membership among noncommercial
stations is lower than it is among commercial
stations. I don't have the numbers at hand.
MS. SOHN: I'd like to get the
numbers.
MR. BENTON: Yeah, let's get the
numbers. We need the facts here.
CHAIRMAN ORNSTEIN: Let's then,
for now, separate out the issue of minimum
standards for what I suspect will be a vigorous
discussion later on, although we should note
for the record that this interesting proposal
has come from the president of Capitol
Broadcasting, and talk about the code itself.
And maybe, Cass, we could just go through
not every specific, but the sort of bullet
points in these areas that we've raised and
then have some discussion. Let's go through
each of them seriatim and then maybe talk about
a self-enforcement mechanism after that.
MS. SOHN: We still don't have
Cass' thing.
CHAIRMAN ORNSTEIN: It's a
little slow to get them produced on the
35
copier.
MS. SOHN: Can I just ask a
question really quick while this is getting
copied.
On the antitrust thing -- and I don't know
why I didn't read this, I thought I've read
every piece of paper I've been sent in the last
month, but I guess not. Tell me a little bit
more about the antitrust concerns. You said
they're not huge, but there are still -- you
still have some antitrust concerns. Can you
tell me what they are?
MR. SUNSTEIN: Well, you could
imagine a lawsuit brought by a disappointed
producer who wanted to get programming which
would violate the code. They'd have to show an
antitrust injury. It's not at all clear that
they could show that. They'd have to show
their inability to get on television is a
product of the code. Extremely speculative.
Possible they could show an antitrust injury,
and what they'd claim then is that this
caramelizes the industry in such a way as to
prevent certain programming from getting on the
air.
36
And then the question would be is this
Cartel, subject to -- this is going to be
really boring, so I apologize. Is it subject
to a per se rule of invalidity which the
antitrust law applies to price fixing. That
would be a shock. That would be like a meteor
hitting the earth tomorrow. It's very
unlikely.
And if they show an antitrust injury, the
question is whether this fails under the Rule
of Reason, and the first question would be
whether this actually decreases competition
rather than increases it, and it's not --
that's not clear. It might increase
competition by putting on shows that wouldn't
otherwise be on shows, increasing viewer
choice, and there would be internal competition
among signatories to the code in different
areas. So it's not at all clear that this
isn't pro competitive.
If you can show that this has anti-
competitive effects, the question is whether it
can be justified by social welfare
consequences, which may be such things as
producing more programming for kids, serving
37
educational goals for adults as well, serving
political process codes by entering more
informed electorates, so forth.
Those sorts of things the court has shown
some hospitality to in cases involving what
Newt is describing; that is, efforts by
professional associations to engage in self-
regulation.
CHAIRMAN ORNSTEIN: We don't
need to get into anymore detail.
MS. SOHN: I just have one
thought, if I could just ask about. Perhaps
one thing to do -- and this is not a cure-all
yet. I've enjoyed this, but probably only one
of the people that has.
But perhaps it's not a complete code.
Perhaps one of the things that could be done is
maybe one of the networks and some others, some
other broadcasters, could kind of like, if this
code develops, say, you know, we believe this
is legal, certified this is legal. That,
obviously, wouldn't stop anybody from
eventually bringing an antitrust suit, but the
point is to try to get as many people to say,
yeah, this is kosher, this is legal and perhaps
38
sort of serve as a beacon that this code is
okay.
MR. SUNSTEIN: I'm going to do
some more work on this, and I have talked to a
bunch of antitrust specialists, and not one
think this raises serious antitrust problems so
far.
If it, otherwise, does raise an antitrust
problem, the fact that the signatories
certificate that it's legal won't help.
MR. DUHAMEL: One question that
I have on this, in Sheila Anthony's letter, she
says, "The conditions of the exemption --" this
is the antitrust exemption "-- that any
guidelines be truly voluntary and the
collective activity not result in the boycott
of any person."
Wouldn't that raise the, you know, the
satisfied producer who didn't -- wouldn't he be
just almost --
MR. SUNSTEIN: It wouldn't be a
boycott victim. If someone is excluded because
there's an agreement, there's a difference
because someone is excluded because there's an
agreement that you can't have, let's say,
39
really violent programming on and a boycott of
a particular person.
The reference is to if there's a boycott
of a particular producer or some such, then you
have a hard time, but if you have people that
don't get on because of the agreement, that's a
different --
MR. DUHAMEL: I was worried
about that collective activity because this is
essentially what a code is, it's a collective
activity.
MR. SUNSTEIN: She's referring
to something very specific, that is a boycott,
and the exclusion, the de facto exclusion that
might result from this -- this is very
speculative -- wouldn't be what she's talking
about.
Basically, what this letter says is that
Senator Simon's exemption from the antitrust
laws was entirely unnecessary, that if there
was an agreement on guidelines, that agreement,
by itself, would raise no antitrust problem.
Now, that's the Justice Department
position. That's very important because the
other case was brought by the Justice
40
Department. That's one reason the court took
it very seriously. The Justice Department has
a very strong position here.
There's only one sentence that I think is
any concern at all in that letter, and that's
the sentence that says there's a difference
between agreements on a code and an effort to
enforce its provisions. The enforcement
action, she leaves a little bit of an opening
there, and that's the sentence maybe that is
worth underlining. But I really think this is
not worth worrying about very much, the
antitrust.
CHAIRMAN ORNSTEIN: Yeah, we
don't want to take anymore time on getting into
the specifics of antitrust other than to make
it clear that the reasons that caused the
original code to be withdrawn, we should be
able to deal with, handle it here, and we do
have some questions about enforcement that
we're going to have to be sensitive to, and we
discussed that.
MR. GOODMON: I think we should
mention at least twice in the last few months,
Congress has suggested that if the industry
41
will adopt a voluntary code, they, Congress,
will help us with the antitrust and have
suggested we do it. We might have problems,
but I think we also can get some help.
CHAIRMAN ORNSTEIN: We needed to
be sensitive to this, and we need to in the
presentation of our recommendations, but I
don't think we need to spend a lot of our
precious time on this.
MR. BENTON: Norm, as a final
point of clarification, as I understand it, the
antitrust really applied entirely to the
advertising part of the code and not to the
programming part of the code.
CHAIRMAN ORNSTEIN: Yes.
MR. BENTON: The program part,
that's not -- and this is not an issue, the
antitrust, as I understand it.
CHAIRMAN ORNSTEIN: We want to
be sure that we don't raise red flags. We also
want to be sure that we cover our bases, and we
will do that.
Well, what we have here and what Cass has
done, and I hope will be delivered to you all
momentarily, we have a set of -- let me just go
42
over these quickly and you can supplement -- a
set of general principles and a rationale for a
code, most of which was taken from the original
code, basically the broadcasters of public
trustees, that there are some obligations that
have been imposed on broadcasters, but that the
government has generally restrained itself from
going further because of a belief that
broadcasters are doing themselves, voluntarily,
what should be done, that most broadcasters do
take their obligations seriously going beyond
the requirements of law, and they do offer
public service announcements, provide
educational programming for children, offer
community services, cover substantive issues in
a serious way, avoid exploitation,
sensationalism and attend to important issues,
public debates and elections, and the purpose
of the code is to reflect an explicit and
voluntary commitment to certain basic
principles, to ensure that broadcasters
generally act as public trustees and are not
penalized in the marketplace for doing so, and
it explains why we need a code.
Then we move on to some of the substantive
43
areas.
MS. STRAUSS: Norm, I think that
she has the copies. It would be helpful to
people.
CHAIRMAN ORNSTEIN: Yes.
MS. STRAUSS: Can I just ask a
quick question while they're being passed out?
I'm a little confused about the
relationship between the codes and the public
interest obligations that we arrive at, and
here's the source of my confusion.
It seems to me that the code is going to
be above and beyond the obligations that we
determined, and therefore, it would seem to
make sense to determine those obligations
first.
I understand that you just want to go over
the code, but it doesn't make much sense, it
seems to me, to determine what the code is
since that's a voluntary effort because I know
that, for one, I'm not sure what I want to
agree on within the code, and I don't want to
say it has to be in the code if it's already in
the obligations, but I do have to worry about
it at least getting into the code if it's not
44
in the obligations.
CHAIRMAN ORNSTEIN: Well, we
don't have to agree on every -- we're not going
to vote on line items in a code, Karen.
MS. STRAUSS: No, I understand.
CHAIRMAN ORNSTEIN: I would
argue, even if it's an obligation, an
obligation can be given and taken away, and
whether it's an obligation or not doesn't mean
it's redundant to have it in a voluntary Code
of Conduct.
But for our purposes of discussion here,
since this is an area, if we start to discuss
the areas where we have disagreements or
potentially deep disagreements and leave for
the end getting to the specifics of the areas
where we have some agreement, we will probably
never get to those.
MS. STRAUSS: I was hoping to
discuss the areas where we had agreement first
within the obligations. Is that--
CHAIRMAN ORNSTEIN: I'll tell
you what. If you have questions about the code
that you want to raise after we've discussed
those, then we will come back to them, but I
45
think we can safely go through most of the
general principles here and see where we
highlight disagreements.
And if you would turn, basically, I think
to page -- page 12 had the general principles.
The first 10 pages of this are a very nice
discussion of the antitrust issues. 11 gives
the overall code provisions, and then 12 was
that first discussion. I'm looking at the --
CHAIRMAN MOONVES: Oh, got it.
CHAIRMAN ORNSTEIN: Look at the
top, the faxed pages. So turn to page 13 of
the 20 or page 12 at the bottom of your page,
and that's the first substantive discussion.
MS. CHARREN: Page 12 at the
bottom?
MR. SUNSTEIN: Most people are
looking at page 12 at the bottom.
CHAIRMAN ORNSTEIN: 12 at the
bottom. So what we had a couple of pages
earlier was the outline on page 7 at the
bottom, the general principles and rationale,
which I think we've basically covered. It's
more or less what was there before, and I think
it's largely boilerplate, and we can talk about
46
responsibilities towards children.
MR. SUNSTEIN: This is very much
like the old provision. Maybe number 4 is the
one we might focus on, which is about
educational programming for kids, including a
minimum of or a reasonable number of hours of.
The rest is, I think, entirely vacuous because
you can imagine what an egregious violation
would look like.
MS. CHARREN: For all the help
that is. Peggy Charren. I always was able to
imagine what an egregious violation would look
like. For example, I think it's egregious to
promote violent programming in programming that
you want children to watch, like sports
programming, so that the minute or half minute
of violent content of a program that isn't as
violent as that promo because, after all,
that's contexted in the movie but there isn't
in the promo. It would be nice if it that
didn't show up in sports programming.
I could talk myself blue in the face for
100 years and I couldn't do anything about
that. So that my only concern is that, as a
body, we don't look at this and say, we have
47
dealt with the need to take care of children on
television. I think it's perfectly reasonable
to have this in the code. I used to use it in
testimony in Washington. I would read what the
industry said about what it should be doing,
and I'd read it, and then I would take it
apart. I'd make fun of it. I would say, if
they did it. It's sort of an excuse for people
like me to have something to talk about it.
But let's understand that this doesn't
then qualify as this committee's way of dealing
with the needs to serve children. It does not
bother me that this would be in a
recommendation for broadcasters anymore than it
bothered me that it was there. It only
bothered me when the NAB used it to prove that
they were taking care of kids.
MR. RUIZ: Peggy, what is the
age group when you say children?
MS. CHARREN: The industry has
made it 2 to 17 by working on the legislation,
to deal with 2 to 17. My feeling was it sort
of stopped at 15 because if you call any
16-year-old a child, they'd have a nervous
breakdown.
48
On the other hand, I am willing to go to
17, which NBC says it is serving. It would be
nice if they did some election-related
programming so kids might vote when they got to
be 18, but I don't mind that. That's the
number.
For advertising purposes in the law, it's
2 to 12. There's two different numbers. They
can't decide which children are in that law,
but that's the way it is.
MS. STRAUSS: I think I didn't
articulate myself well enough before, but this
is exactly what I was getting at.
What Peggy, I think, is saying is that
there are principles in here that we can all
live with, but the question is, is this going
to be the be-all and end-all of what we
require, and that's why I think it's fine to go
through it now, but I think that the only way
that we can agree on what's in the paper is to
first agree on what are the obligations that we
want to require.
CHAIRMAN ORNSTEIN: I think you
can discuss the principles that we can all
agree on and recognize that, for most of the
49
members, a code may be a necessary but not
sufficient recommendation to make. We're not
suggesting this is the only thing that we're
doing, so --
MS. CHARREN: These are very
content-sensitive rules as they're put here. I
mean, violent programming, you know, a civil
rights drama is violent, and we hope that
they're not going to do in a civil rights drama
in the interest of children, especially if it's
a children's program, which can also be violent
if it's a good children's program.
But there's nothing in here about
advertising, and one of the major programming
problems of programming for children is in the
content of the advertising, and we could
discuss at some point in this endeavor whether
we can talk about the content of the
advertising in terms of where it appears, when
it appears.
And I would ask Cass, would that get us in
too close to a constitutional problem without
making the rule of you can't do it, just
suggest? After all, this is a suggestion.
Maybe we can suggest that you don't promote
50
their worst programs directly to children.
MR. SUNSTEIN: No constitutional
problem but a possible antitrust problem. But
we shouldn't be terrified of the word possible
antitrust problem from my -- if you think about
it.
CHAIRMAN ORNSTEIN: We can also
recognize that, basically, we're not -- any
voluntary code is going to be put together by
the broadcasters. All we can do is recommend
language, and the greater the unanimity we have
or consensus we have in our committee,
presumably more impact it has, but we have to
start with that premise, that nobody is going
to take this and adopt it in toto.
MS. CHARREN: For example, when
it says three hours, which is what's in the law
now, it also has limits on advertising in the
law, which are very high, but you might want to
put them in again because the FCC is already
finding stations that go over it. That can't
really be a problem.
MS. SOHN: You can make a broad
statement about how children can't really
express themselves in the marketplace and
51
broadcasters should be careful not to, you
know, over --
MS. CHARREN: We do that for
programming.
MS. SOHN: The other thing that
I saw was missing, also, was we were talking
about different ages. There isn't anything
about serving children of different ages. I
mean, I just skimmed it. Did I miss
something?
Because if all your shows are directed
towards kids between the age of 4 and 7, then
what about everybody else? You might want to
put some language in there about certain
different age settings.
MR. RUIZ: I would answer that,
you know, some of the demographics. You may
have areas where they're largely a Native
American population, and the programming --
MS. CHARREN: Could you talk a
little louder?
MR. RUIZ: You may have areas of
large Native American, Asian, Latino
populations, yet the program is not reflective
of that society. Are they seeing themselves?
52
Are they seeing their world in the
programming? There's no mention of that.
MS. CHARREN: That diversity
covers a lot of various public interest
concepts.
CHAIRMAN ORNSTEIN: Any other
suggestions in this part? I think maybe what
we can do here is go over that and subsequently
we can embellish or change.
MR. SUNSTEIN: This is helpful.
There are three new provisions we can think
about.
CHAIRMAN ORNSTEIN: Maybe
briefly discuss -- let's move on to the next
one, public elections.
MR. SUNSTEIN: Yeah, what this
tried to do is a couple of things. One is
emphasize the role of television in promoting
democraticals, another is stressing the value
of coverage of federal, state and local
elections, as well as initiatives and
referendums, and a third is to have some
language about the value of having covered the
substantive oriented issues rather than sound
byte issues and horse race issues. I'm
53
thinking of the Belmont stakes, tragic loss.
And the last -- the last is to say
something, and this is Section 5, about the
need for candidate-centered discourse, not
defined, in the evenings.
Now, this may be too specific. It would
be interesting to get people's reactions to all
of this.
MS. STRAUSS: I have a question.
CHAIRMAN ORNSTEIN: Yes, Karen.
MS. STRAUSS: I had a question
about Number 4. You say that the station would
focus on races and candidates the station
believes is important and deserving of
attention by its viewers.
Can you give anymore thoughts about how
the station would determine that and whether
you could add something about making such
determinations based on ascertainment of
community needs for information in certain
elections?
MR. DUHAMEL: You're going to
overwhelm the station in detail. The stations
know -- the news people know where the interest
is. In other words, there's occasions we've
54
had debates on attorney general candidates.
Typically we don't, but when you have an
important attorney general's race and it looks
like there's interest in it, we will cover it.
Otherwise, some of those are just routine, and
nothing happens.
You can't get into -- if you really want
to run surveys, the general public, the general
public does not understand -- not understand --
the general public does not want -- I've never
seen anything. They vote by viewing, and I've
never seen anything that says they want to have
half hours of discourse with candidates. I
think a station that ran half hours, the public
would vote by leaving. They would go alternate
places.
MS. STRAUSS: I'd be interested
in hearing some other views on this, whether
you feel -- I mean, this is not my particular
area of expertise. This jumped out at me, that
the station decides. So other people around
the table that have had more background in
this, I'd be curious to know your views.
MS. SOHN: This is Gigi. I'm not
trouble by --
55
MS. SCOTT: Hello?
CHAIRMAN ORNSTEIN: Shelby?
MS. SCOTT: Yeah, I can barely
hear anything.
CHAIRMAN ORNSTEIN: Because
you're too far away, Shelby.
MS. SOHN: We can hear you,
Shelby.
MS. SCOTT: Well, that's great,
but I can't hear a thing. I hear mumbling like
in the background.
CHAIRMAN ORNSTEIN: Well, we'll
try and speak up and speak right into the
microphones.
MS. SCOTT: Thank you.
MS. SOHN: Shelby, this is
Gigi.
I'm not that troubled by allowing
broadcasters to use their discretion on what
races are important. What I am troubled by are
sort of absolute blanket bans on either
covering or even selling time to candidates.
Now, we've seen this, I think -- did you,
Charles, attach an article to your issues and
consensus memorandum about how basically some
56
of the California stations are absolutely
refusing to sell time to down-ticket
candidates? That's something of great
concern.
So reasonable -- the point I was going to
make, Cass, is that reasonable access has to
mean that you just can't -- the law says, this
is CBS versus FCC certainly says this, but you
can't have blanket policies refusing to even
sell time. I think broadcasters should have a
firm obligation to cover these races. You
can't just say we're only going to cover the
governor's race, and that's what's been going
on in California.
But generally, Karen, I'm comfortable, you
know, within the grander scheme of ensuring
that, you know, local and important local races
are covered. Why should a broadcaster have to
cover the race for the dogcatcher where the guy
is going unopposed or he's going up against a
crank candidate.
CHAIRMAN ORNSTEIN: Well, I
guess the question there, Gigi, would be
whether that sixth provision, which is the
station should provide reasonable access, is
57
enough to cover those concerns. The term
reasonable access is, in fact, one that comes
out of the law, is it not?
MS. SOHN: Yeah, and in fact,
the way the law has been interpreted, it's been
interpreted -- again, CBS versus FCC -- that a
broadcaster cannot make a blanket policy of
refusing to sell. Remember, reasonable access
under 312 (A)(7) is only for federal
candidates, not for state.
CHAIRMAN ORNSTEIN: The use of
the term reasonable access here ought to
take that into account, I would think.
MS. SOHN: I'd make it more
specific. I would say this means that
broadcasters cannot have a right to refuse --
MR. LA CAMERA: That's
different. Are you mandating what item -- this
is Paul La Camera -- mandate that television
stations provide access to local and state
candidates, news access?
MS. SCOTT: I hate to interrupt,
but am I still hooked in?
MS. STRAUSS: You're hooked in.
MS. SCOTT: You cut out
58
completely. I'm hearing static.
MR. LA CAMERA: Right now we're
obligated, obviously, with federal candidates
but we'll have a similar obligation with local
and state candidates.
MS. SOHN: Yeah, that's what 6
says, that stations should provide reasonable
access to candidates of state and local
offices, as well as to federal candidates, and
I'm all for that, but --
MR. LA CAMERA: I'm sorry, Gigi,
are you talking about news public peer
coverage, or are you talking about access in
terms of purchasing commercial time?
CHAIRMAN ORNSTEIN: Yes.
MS. SOHN: Well, you have to ask
Cass. He wrote it. I'm assuming that he means
in terms of selling time.
MR. SUNSTEIN: I wrote it, and I
have no idea what it means.
CHAIRMAN ORNSTEIN: I think the
reference here is, in the context of what's
here, is selling time, and that is a response
to what has become a practice that's occurred
in a number of areas.
59
MR. LA CAMERA: I know it
happened in the Washington, D.C. market.
CHAIRMAN ORNSTEIN: Not only the
Washington, D.C. market, but it happened some
in California, and that is, as Gigi said, it's
not just a selective refusal; we don't have the
time, but we will accept no time even for those
who have cash in hand for these races. And, of
course, in California, that also included no
news coverage of the races either.
So I think, you know, this is an attempt
through a code to get at the need for some
sensitivity to --
MR. SUNSTEIN: One question is
should we clarify it to say that, and another
question is so clarify that people like it. I
consider myself agnostic right now, but --
MR. LA CAMERA: I'm fine on the
issue of the commercial time. I mean, I'm
always uncomfortable when we start dictating
journalistic policy.
MR. CRUZ: That was covering
elections.
MR. GLASER: That's what I was
saying to Karen. I'm fine with the broadcaster
60
choosing what important races to cover. What
I'm not fine with is a blanket policy that we
will not sell time to candidates. That's
what's been going on.
MR. LA CAMERA: I have no
problem with that. Just in item 5, just for
the sake of reality, 6:00 p.m. to 11:00 p.m.,
11:30 p.m.. Make that 11:35 p.m., which is the
reality of late night local news.
MR. DUHAMEL: In the mountains,
a lot of times our prime local newscasts is
5:30, and we have a higher proportion of adults
watching the 5:30 than we do --
MR. LA CAMERA: 5 o'clock p.m.
MR. SUNSTEIN: Should it be 5:00
to 11:30?
MR. CRUZ: California starts in
at 4:00 in the newscasts. If you want to
blanket the country, let's go with that.
CHAIRMAN ORNSTEIN: If you want
the evening hours here, 5:00 is okay. Charles,
Charles Benton?
MR. BENTON: Charles Benton.
Cass, I'm just as the original. The old NAB
code broke itself into program standards and
61
advertising standards. It seems to me that,
especially in this elections area, you might --
there might be some refinement in not just
lumping everything in together, but of thinking
about it in terms of program standards and
advertising standards.
Clearly, in the program area, the notion
of diverse views and conflict is the -- and
avoiding propaganda or avoiding unbalanced
coverage of competing candidates is kind of a
part of it.
And in terms of the advertising time,
there's -- there were a lot of comments in our
various papers about no less than one minute of
spots are given and no less than one minute,
and the candidate has got to appear 75 percent
of the time, issues like that.
I'm not -- I'm not enough of an expert to
dictate precisely what those things ought to
be, but the general point has been to try to
move away from the manipulation of advertising,
especially as done by outside forces and having
the candidate be more directly -- if free time
is to be given and all that free time were
given --
62
CHAIRMAN MOONVES: We're not
dealing with free time here.
MR. BENTON: All right.
CHAIRMAN MOONVES: And may I add
that I think this is a very good document. The
more we get bogged down with tiny specifics,
the harder it will be to draft something that
we will get a consensus on.
I think there are a lot of very good
points in here, and I know I may feel
differently than some of you, but the
generalism of it is a very positive thing.
MR. BENTON: I hear you, but I
think still thinking it through, both from the
standpoint of programming standards and the
commercial standards would be very good.
CHAIRMAN ORNSTEIN: Some of that
is in the next section as well, which we can
turn to with news and public events, which also
has relevance for elections.
How much of this, Cass, was in the --
basically in the original?
MR. SUNSTEIN: Most of this was
in the original. I think the third sentence
under 2, I think the word "gossip" I added.
63
CHAIRMAN ORNSTEIN: Well, that
would really test whether there's any meaning
to a code.
MR. SUNSTEIN: It should be
undo.
MS. CHARREN: Might do in the
news altogether.
CHAIRMAN ORNSTEIN: Actually, if
we took all the gossip out, we'd leave enough
time in the newscast for whatever free time we
wanted to provide for candidates.
CHAIRMAN MOONVES: How about the
stories of crime or sex, or take out crime, sex
and gossip. We would have had a hard time
covering the government the last few months,
wouldn't we, if you adhere to that.
CHAIRMAN ORNSTEIN: It's mostly
gossip about government.
MS. CHARREN: A lot of blank
screens.
CHAIRMAN ORNSTEIN: Maybe we
should take a minute to just read this, but
most of it is, I think as Cass suggested, was
in the original.
MR. SUNSTEIN: I added 9. 9 is
64
the only one I added, and the word gossip.
MR. BENTON: Is there an 8?
MR. SUNSTEIN: Yes, but it's
mysterious.
MS. CHARREN: There's something
about saying undo the simple versus complex
issues. Something I feel I need a lot of the
time is for a very simple discussion of a
complex issue so that I can manage to
understand it, and I think that this could be
misconstrued somehow. I mean, I know what it
means, but --
MR. CRUMP: I have to agree with
you because, to me, the purpose of a newscast
is to explain to the general public what's
going on when they're getting all the
gobbledygook that are being putting out, many
times, by the constituents themselves.
MS. CHARREN: I think this can
be misconstrued.
MR. SUNSTEIN: What would be
better?
MS. CHARREN: I don't know.
MR. SUNSTEIN: Maybe we could
just delete the first phrase, "The station
65
should make an effort to devote sufficient time
to produce --"
MS. SOHN: That's a good idea,
yeah.
MS. CHARREN: That says it,
right.
MR. DUHAMEL: I think you're
right, sure.
CHAIRMAN ORNSTEIN: Let's move
on to community responsibility then, and we
could move through some of the substantive
stuff here really quickly and then turn to what
is a more contentious, I suspect, or at least a
more difficult question, and that is the
question of how you revise and enforce. Maybe
the responsibility was also largely taken from
the previous code.
MS. CHARREN: I like this. Is
this new?
MR. SUNSTEIN: A lot of it's
new. It's from one of our colleagues.
MS. CHARREN: That's nice.
CHAIRMAN ORNSTEIN: Yeah, Jim?
MR. YEE: Jim Yee. Luis brought
it up again, but also, since this code, should
66
we also reflect the changes of the community in
the issue of how do you address the fact about
issue of diversity and makeup? I know it's
sort of a static term these days. I'm just
wondering how can we reflect the changes? I'm
looking to you, Cass, for that.
And also, there was discussion last time,
predominantly about the PSA about being such a
major centerpiece of the commercial
broadcasters when we had not talked about local
programming or had it represented in the
language as much as it should be. Again,
that's an area I hope could be addressed.
MR. SUNSTEIN: I think that's an
interesting idea, a provision that says the
broadcaster shall attend to the diverse
demographic segments of the community and
provide a reasonable service for all viewers.
CHAIRMAN ORNSTEIN: I think that
would be a very wise thing for us.
MR. LA CAMERA: I think the
others addition there would be an emphasis on
local groups that's in other documents and not
necessarily on this page.
MS. CHARREN: Is this a good
67
place to talk about the fact that in public
service speech, particularly, with diverse
populations, the use of the same way we do the
captioning can help in terms of language, for
example. It's very important that everybody
vote, and if you have a language problem, where
do we -- there's an opportunity there for
broadcasters to make use of technology in that
area to help that process a little more. I
don't know where that belongs, but it just
occurred to me when somebody said something.
MS. STRAUSS: Well, I'd like to
respond. I'm kind of sitting here again
thinking that most of the captioning rules do
not cover most of the principles in here.
Again, the captioning rules, right now, don't
require captioning on political debates, PSAs,
local news, or at least not real-time
captioning.
So that was part of my concern, because
the question is where do I go for broke? Do I
go for broke on here on the code of the
voluntary code or --
CHAIRMAN ORNSTEIN: Again, I
don't think they're mutually exclusive.
68
MS. STRAUSS: One possibility is
in general principles and rationale to have
this overriding statement that indicates the
need for disability access where it's not an
undue burden, which would be consistent with
all of the federal laws on that.
MS. CHARREN: And in talking
about captioning, we could add language there,
which is a way of dealing with people who can't
speak English.
MR. DUHAMEL: You said where
it's not an undue burden. That's an
important --
MS. STRAUSS: Oh, yeah, I have
no problem with that. That's been the law of
the land for quite some time, the undue burden.
MR. DUHAMEL: In South Dakota,
it was going to cost South Dakota broadcasters
about a billion dollars a year.
MS. STRAUSS: No, it's
reasonable to have a defense where it's going
to be a financial hardship, and that's always
been incorporated in the Rehabilitation Act of
1973, Americans with Disabilities Act, and now
the captioning provisions of the
69
Telecommunications Act.
But I do think it would be nice to have
something in here that recognizes disability
access since that was not on the radar screen
when the original code was created.
MR. SUNSTEIN: There are two
ways to do it offhand. One is to have it in
the general principles, another is to have it
under some of the provisions.
MS. STRAUSS: Right. I suppose
that my preference would be to specifically
have it under the individual provisions,
especially the election provisions, the news
and public events and the community
responsibility.
MS. CHARREN: Peggy Charren. I
think it's also important because we're talking
about the future here. This isn't supposed to
be a rewrite of the code for broadcasting as we
know it now. It's for digital television,
right? And these kind of opportunities are
going to be more easier to make it happen in a
digital universe.
CHAIRMAN ORNSTEIN: It seems to
me a provision that basically says that
70
broadcasters will be sensitive to the diverse
elements of a local community to make sure that
all of these provisions of news and programming
otherwise will, as much as possible, without
undue expense, be sensitive to the needs of the
disability community or other groups, including
through language, to meet what would be
perfectly --
MR. SUNSTEIN: Let me think
about whether that should be under general
principles or under the specifics, and we can
certainly --
CHAIRMAN MOONVES: Peggy just
brought up a very interesting point in that she
said this is for digital television. Digital
television, we're looking into the future. Is
this a Code of Conduct for today, for right
now? Are we dealing with analog and as we move
forward? I think we have to specify if that
is, in fact, the intent of what we're doing
here.
CHAIRMAN ORNSTEIN: One element
of that, Les, is that a little further down
where we're talking about revisions and
enforcement authority, we don't need to get too
71
far into it here, but there's a provision to
basically go back and reconsider the code
periodically as digital television changes.
CHAIRMAN MOONVES: Well, Norm,
there are certainly things that we're obviously
going to get into a little bit later on about
HDTV and multiplexing and talking about the
eventuality of that world, what would happen if
there are three channels or four channels or
five channels, et cetera, et cetera.
So I think it's very important on every
issue to distinguish whether we are talking
about what is going to go on with broadcasting
today. Are we including any other people, such
as cable? We really have to distinguish
between what is happening with the world and,
when appropriate, if we're looking down the
road. Charles?
MR. BENTON: Yes, Charles
Benton. I think Les has made a very good
point. What was sent out to us in preparation
of this meeting was this NAB code, which I
believe is over 20 years old. We were handed
out, at the last meeting in mid April, a
four-page quote "statement of principles" of 3
72
pages -- 3 and one-third pages statement of
principles, and clearly, and given the
antitrust blanket that NAB has apparently
applied to, not only advertising but
programming standards, maybe this has fell
into, if not disuse, much less use now, and so
the move from analog to digital does give the
profession and the association a leadership
opportunity here to rethink through the code
and how it should apply today and in the future
with technology.
So I think it's a great opportunity for
the NAB to reassert its leadership role in
this, which historically, as I understand it
from talking to some of the broadcasters here
last night in particular, it was very important
in the life of broadcasters 20 years ago.
Obviously, this is fallen. There are a
lot of changes many of us don't understand or
don't know, but the move from analog to digital
does give it an enormous opportunity for
reasserting leadership by the profession and by
the association here on the standards to help
reposition broadcasting, vis-a-vis the
competition of cable and the tel cos.
73
So therefore, this is a real opportunity,
it seems to me, and shouldn't be looked upon as
a threat or thou shalts, et cetera. There's a
real opportunity for leadership.
CHAIRMAN ORNSTEIN: We do need,
I think as Les is suggesting, to be sensitive
to what are principles that apply no matter
what the electronic era brings us, and many of
them here clearly do, and where we begin to get
into specifics and specific standards and
quantification, we clearly need to be very
sensitive to the reality of what applies today
may not make sense a few years down the road.
And I think since our core responsibility
is digital television broadcasters, we can,
obviously, recommend strongly a code for the
NAB here in a separate spot assuming that we
can all reach agreement on many of these
issues.
It is utterly appropriate for us, it seems
to me, to recommend that some standards apply
in other areas as we move into the digital
age. But it also means, Les, that we need to
be sensitive to what we, I hope, will get to in
a few minutes, which is the question of how you
74
have an ongoing process of altering the code to
take into account these changing realities.
So let's turn to controversial public
issues, and I think we probably can work
through most of these relatively quickly.
MS. SOHN: Norm, can I just -- I
like this language very much, though one thing
that's missing.
MS. CHARREN: Which language?
MS. SOHN: The controversial
public issues, except local is missing.
There's not one mention of local.
And the thing I am a little bit concerned
about as I look through community
responsibility and controversial public issues
is some sort of statement about covering local
communities, underserved communities. Jose and
Jim did mention that. I don't know exactly
where that would fall in, whether it would fall
in under E or F or somewhere else but --
CHAIRMAN ORNSTEIN: There's
probably no problem with mentioning sensitive
to local concerns in each of these areas. You
can add a clause here that basically says alter
the life or welfare of a substantial segment of
75
the public, including the sensitivity to those
issues that are specific to a local community,
or something of that sort.
MS. CHARREN: I'd like to add
something as wispy as that also, to the
children's page, because serving the particular
needs of children in the community is different
than national programming for children, and
very productive.
MR. SUNSTEIN: We can do that.
MS. SOHN: I just wanted to add
one other thing on a technical thing. You
could add something either to Section A, or
again, to any of these saying how the
broadcasters should deploy new technology to
ensure access, you know, a broad statement
about employment of digital television to sort
of A, B, C. Just a thought.
CHAIRMAN ORNSTEIN: Okay. Let's
move on to special program standards, crime,
violence.
MR. SUNSTEIN: There's actually
nothing here on sexual materials except sexual
violence, and I just noticed that the NAB's
current principles has some material on
76
sexually-oriented material. It isn't bad.
CHAIRMAN ORNSTEIN: Then maybe
if that's in the NAB's current material --
MS. CHARREN: Read it.
MR. SUNSTEIN: Okay. "Obscenity
is not constitutional for speech. It is, at
all times, unacceptable for broadcasts."
That's the least controversial. "Where
significant child audiences can be expected,
particular care should be exercised when
addressing sexual themes. All programming
decisions should take into account current
federal requirements limiting the broadcast of
indecent matter. Creativity and diversity in
programming that deals with human sexuality
should be encouraged. Programming that purely
panders morbid interests should be avoided. In
evaluating programming dealing with human
sexuality, broadcasters should consider the
composition and expectations of the likely
audience and the context."
All that's good. We might want to have a
separate provision on sexual violence,
something about special care with respect to
sexual violence.
77
MS. CHARREN: That's a good
idea.
MR. SUNSTEIN: I did add,
already, a section in the last sentence of 2.
MS. CHARREN: I think that's
very good. Peggy Charren.
I once asked a big-deal psychiatrist who
was at Yale, what is the most -- the worst
thing that children can see on television,
because a lot of what we talk about is okay if
we use it to educate. What's the worst thing
they can see? And his answer was, sex with
violence.
CHAIRMAN ORNSTEIN: And gossip
and lying.
MR. SUNSTEIN: We'll add
something along those lines. The trick here is
that, you know, you wanted to say something
that gives guidelines but not something that
restricts diverse views. So there's this last
sentence.
MR. RUIZ: How much of this will
apply to cable?
CHAIRMAN ORNSTEIN: How much of
it will apply to cable is the question, and the
78
answer, at least on the surface, is this would
be a code created by the NAB for broadcasters.
There is nothing that I can see that would
prevent us from recommending that, among other
things, the National Cable Television
Association adopt a comparable code and that
whatever association exists for satellite
broadcasters also adopt a code and for strongly
recommending that that occur.
MR. RUIZ: You mentioned
gambling, point 3 here. They now have on cable
handicappers for ball games with 900 numbers
that diagnose the game and then have you call
them for -- I don't know how much they charge
and stuff like that, and a lot of kids are
watching this, high school and college kids,
and I haven't seen it on the commercial
broadcast, but I see it on cable, and I think
they're buying the time.
CHAIRMAN ORNSTEIN: Well, again,
we have no compunction about strongly
recommending that, if not the same code, a very
comparable code that may have some particular
sensitivity to those issues.
MR. MINOW: Newt Minow. I'd
79
emphatically endorse that. I think it's unfair
now to have the cable industry, which is
getting more than half the audience in prime
time, not subject to the same rules, standards
of broadcasters.
MR. SUNSTEIN: Barley Diller has
said exactly the same thing.
MS. SOHN: But understand, I
don't necessarily disagree with you, that there
is very little local -- local programming on
cable and non --
MR. MINOW: That's a
different --
MS. SOHN: It is if you're
talking about -- if you're talking about
requirements to do local programming. I'm just
saying -- I'm not disagreeing with you, Newt.
I'm just saying you have to be sensitive. You
can't really impose local requirements on DBS.
They don't do any local programming. It's all
national.
MR. SUNSTEIN: We can write it
up in such a way to apply those provisions that
make sense to apply to cable.
MS. CHARREN: Yes, because a
80
diversity provision that is appropriate for
somebody legally mandated to serve the public
interests is different than mandating that kind
of diversity on a channel that is just a
cartoon channel or that is -- you know,
channels are different for cable.
CHAIRMAN ORNSTEIN: Let us
recognize that there are, of course, public
interest obligations for cable. The way
they've been defined is through this set-aside
of channel space which, presumably, is
sensitive to local programming which, for the
most part, has not been.
And I frankly -- although our mandate is,
one again, broadcasters, making a strong
suggestion that perhaps the local content that
comes through that channel space be
strengthened and changed and made meaningful
certainly ought to be within our purview to
recommend as well. So we can hit the local
issues.
MR. MINOW: The viewer has no
understanding or no care about whether he sees
a program on cable or over the air. It makes
no difference to the viewer, and it's wrong for
81
us to separate those two things. Put yourself
in the viewer's position.
CHAIRMAN MOONVES: Especially
the younger viewer who has grown up with 50
channels in his house. Channel 33 is no
different than Channel 2 to the average kid.
MR. BENTON: Maybe this is a
question. Charles Benton.
Since our commission mandate is the public
interest obligations of digital television
broadcasters, how can we structurally address
this very important issue that has been raised
by several people? What do you suggest is the
structural approach on this?
CHAIRMAN ORNSTEIN: Some of this
we will have to work out in the process of
drafting a report, but it seems to me that,
among other things, we are looking at the
public interest obligations of digital
television broadcasters, which means that we're
trying to look at public interest obligations
in a new era, and in the process of doing that,
since every aspect of the use of the spectrum
is going to change.
And what is likely to happen is that a
82
continuation and enhancement of what Les just
suggested; namely, a blurring of the lines here
for viewers, at least, that -- and since we are
also making recommendations that go formally to
the vice president, but which are clearly going
to include recommendations for action by
Congress or by the FCC, as well as by the
broadcasters, that's suggesting, for example,
Congress revisit the question of the set-aside
space for local programming and community needs
by cable to take into account some of these
considerations. I don't see why we can't make
that suggestion or even a suggestion or report
to the vice president that the strong
recommendation be made to the cable industry to
get their own house in order through voluntary
means the same way that broadcasters are.
Where we include it may be a question, but
how we include it should be a fairly easy thing
to do.
MR. BENTON: Thank you. Can I
raise one more question?
Most of these issues under the special
program standards are dealing with the extremes
and aberrational points, and they seem fairly
83
self-evident.
I want to come back to Les's point about
the application of these standards and just say
a word about the treatment of news and public
affairs.
A number of foundations recently have been
studying local news in particular, and the
facts of the analysis are really depressing.
39 percent of local news is crime, most of it
violent crime. If it bleeds, it leads. 45
percent is involved in sports, in weather and
commercials. That leaves 15 percent for
everything else.
Now, maybe Cass, in the treatment of news
and public affairs, one can say something about
the mix of content to try to see if there can't
be some breaking of that pattern that is, I
think, causing increasing dissatisfaction on
the part of the public. You know, it's the
body count, we're tired of the body count. The
competition of the local level is more
violence.
CHAIRMAN MOONVES: You're
getting very dangerous.
MR. CRUMP: This is Harold
84
Crump, if I might jump in here for just a
moment.
Let's not forget that we have, in every
market, usually a number of stations who are
competing for audience at the same time with
newscasts, and if you don't believe that the
reason for the amount of coverage that is given
to the various stories has to do with, one,
what we think the public needs to know about,
and two, what the public will accept itself,
and therefore, watch this station, then the
assumption, I believe, is incorrect.
And we have -- we go through cycles. If
you've been in the business a long time, as I
have, you see cycles where various types of
newscasts come and go, and they generally come
and go because of the interests of the viewer
itself. He votes every day when he turns his
set to one channel or another. And you want to
put on a quality newscast, but if no one sees
it, then you're saying, gee, I need to wiggle
it here a little, and it's an awfully hard
call.
And this is where we get back, I think,
into trying to say -- dictate what the program
85
content would be, and that's going to be tough
because that's what we should not be doing.
MS. CHARREN: I think that's
right. If we come out with micromanaging the
news, we'll get ourselves in big trouble. But
that's what I find, if we're talking now about
the code, the code says it. The first one is
news schedules should be substantive and well
balanced and devote substantial attention, and
it's there. It doesn't say 20 percent, and I
don't think it can.
And I think that we have to be careful on
that score. Those of us who, after the fact,
talk, and some people are more likely to talk
about news than others of us, can keep making
that point, and few can keep going to those
meetings, and -- but it does say --
MR. BENTON: It's the same gap
between the reality of what's on the air and
what's in the code, and Peggy was talking about
it earlier.
MR. CRUMP: There's another gap
here, too, that we're not mentioning, and that
is let's not forget that 20 years ago, most
television stations that were in the news
86
business had either one or two half-hour
programs per day. And now when you look at the
expansion that we have with the early morning
hours, with the expansions in the afternoon,
just as Frank was bringing up in really large
markets, the news starts at 4 o'clock in the
afternoon, what you have -- the percentages may
be the same, but the total amount of time
that's devoted to these -- all of these types
of stories is totally different and much, much
enlarged.
CHAIRMAN ORNSTEIN: We take it,
I think, as far as one can reasonably take a
code that talks about what's appropriate.
MR. CRUZ: Yeah, I would agree
with that also. It's difficult to get into the
realm of dictating newscasts and so forth. I
would agree to take that kind of approach.
One of the other factors that has played
into this is the evolution of the industry
itself. Not too many years ago, you didn't
have cameras like this that were capable of
going out into the field and covering stories.
One of the concerns, I guess that you have
as a news director and a producer of a
87
newscast, it seems odd that you will spend an
inordinate amount of time covering a fire,
really of no major consequence, but you can
spend a lot of time on air because the public
supposedly is interested in that and tuning
into that, yet the next day, it's only a minor
paragraph on page 28 of the Los Angeles Times.
MR. CRUMP: What you see in the
newspaper is yesterday's news. We put it on
today. Thank you for the point.
MR. CRUZ: It's the length of
time.
And I guess the other concern that really
goes to some of the sensitivity of the coverage
of the news, for example, in Los Angeles,
there's been an inordinate amount of coverage
on high-speed automobile chases. A highway
patrolman recently said that they've been going
on for a long time. It's only you folks that
have gotten interested lately with helicopters
and so forth.
It came, all of that, to a screeching halt
recently when the police thought, the highway
patrol thought that they were after another
high-speed chase and a young man pulled over on
88
the Harbor Freeway in Los Angeles and blew his
head off, and it was covered. So that's the
kind of area of concern that we have to be
very, very sensitive to, and I think we have to
make sure the code does cover it in that
context.
MR. CRUMP: But you know, you
make a good point there, Frank, in that as our
technology has changed, being totally candid,
we are changing with it, but it's an
educational process. We're learning what we
can do that we couldn't do yesterday. We have
to deal with what is acceptable, what is not
acceptable.
Hopefully, I would say I -- I would
hopefully think that you would agree -- that
the news itself has changed in many ways that
is much better than it was before and makes the
American public much more aware of what is
occurring at the time that it's happening, and
that's what the live coverage has gotten us
into.
When you get down to the coverage of the
Viet Nam War, it was the first one where we
hear over and over again where the American
89
public really understood what war was all
about.
MR. CRUZ: I just mention that
it's a sensitive area that we have to be very
careful.
MR. CRUMP: I'll agree with you,
but we learn as we go, unfortunately.
CHAIRMAN ORNSTEIN: One of the
reasons, it seems to me, why this is an
important recommendation for us, it isn't just
boilerplate, is that we're moving into an era
where newspapers don't just present yesterday's
news, but they go right up on the web to try
and compete with television stations where
you've got the drudges of the world and others
who are out there as journalists, and it's
going to change the competitive environment for
broadcasters and for others on television. And
if we can't -- appropriately can't get into
questions of even voluntary codes for internet
providers or websites, it may have even more
impact to suggest that, under these
circumstances, broadcasters and other
journalists have codes that they adhere to even
in a very different and changing and
90
competitive environment, and we need to be,
obviously, sensitive to that.
Let's talk about enforcement.
MS. CHARREN: Something I
forgot, and I don't know if this belongs, but
it's been a concern of mine for 30 years, and I
don't know if Cass can fit into this kind of
paper, maybe either in responsibilities to
children or in the news page, some sense that
it's appropriate to have news programs for
young audiences; that if we expect our nation's
children to vote at age 18 and we consider them
children up to age 17 for purposes of
broadcasting, that if we're encouraging all
kinds of programming, it makes sense to
encourage news programming for young
audiences. And obviously, I don't mean two-,
three-, four-year-olds, although when there was
a set of assassinations in this country,
Mr. Rogers, in public broadcasting, did a
program for kids, for preschoolers. It was
Mr. Rogers on assassinations. You can handle
even those kinds of things sensitively.
And it's a big poll in the broadcasting
schedules of this country, something that in
91
the late '70s was working. CBS had 20 people
in their news department doing news. I don't
expect that to happen again.
CHAIRMAN ORNSTEIN: CBS has 20
people in their news department.
MS. CHARREN: This was news for
children.
CHAIRMAN ORNSTEIN: I'm not
going to comment on that.
MS. CHARREN: It's an
opportunity to make a point that's sort of
worth making.
CHAIRMAN ORNSTEIN: I would
think under the --
CHAIRMAN MOONVES: Peggy, I
think that gets a little too specific. You're
going to demand or request that each local
station, all 1,500 of them, have a children's
news program?
MS. CHARREN: This is not news.
This is a recommendation to the industry to do
the kinds of things that we would love to see
on the television, and one of the things we
would love to see on television, which is not a
mandate from the government -- it's not a
92
mandate from anybody -- is more programming,
news and public affairs programming, for young
audiences.
CHAIRMAN MOONVES: As long as
it's phrased that way, absolutely. That's
fine.
CHAIRMAN ORNSTEIN: The easy way
to do that is going back to the
responsibilities towards children, under 3
where it talks about programming for children
should take into the account range of interests
and needs of children from a structural and
cultural material and a wide a wide variety of
entertainment material to include a provision
on news and public affairs.
MS. CHARREN: That's all I
meant.
MR. RUIZ: And I also think that
the age group -- (inaudible).
MR. BENTON: Not to beat a dead
horse here.
CHAIRMAN ORNSTEIN: Let's move
on, Charles. We've beaten this horse.
Cass, why don't you briefly describe the
enforcement?
93
MR. SUNSTEIN: What the old code
did is it had two bodies. It had a television
code board, which was basically in charge, and
it had a code authority general manager who was
likely day-to-day authority.
Now, I've added a few things here, you
know, after talking to Norm and others about
this, and the idea, really, was to try to use
rewards for good programming as the first
incentive.
So there is this old provision, which is a
seal of approval for complying stations, and
then there's this notion of special public
recognition for those who had a public -- an
excellent public service record. That's new
and wouldn't do a whole lot, but it might do
something.
Then the question is what to do to punish
those who haven't complied, if anything, and
one idea is the old idea; that is, to deny the
seal of approval. Another idea is to have
publicity for noncomplying or egregiously
noncomplying stations. And another idea is to
have that go to the FCC and to Congress.
Norm was actually talking about something
94
a little tougher, which was to say that in
cases of continuing or egregious violations,
the burden would be shifted to the station to
show that it should be renewed.
Now, the code itself would not raise First
Amendment problems if it did that, but insofar
as the FCC relied on the violations of the code
to deny a license, then there would be an
as-applied First Amendment issue. It's not to
say there would be an as-applied First
Amendment violation, but if someone was denied
a license because of violations of some code
provision calling for lots of programming
involving public affairs, on one view of the
First Amendment, there would be a problem.
CHAIRMAN MOONVES: What
currently goes on?
MR. SUNSTEIN: Nothing.
CHAIRMAN MOONVES: Absolutely
nothing?
MR. SUNSTEIN: The last sentence
of the principles are timorous, I think is the
word. It's like they're cowering maybe is the
word.
It says, "This statement of principles is,
95
of necessity, general and advisory. There will
be no interpretation or enforcement of these
principles by NAB or others. They are not
established basically to do anything other than
reflect existing practice."
MS. CHARREN: Is that what it
says?
MR. SUNSTEIN: That's what it
says.
MS. CHARREN: That makes my
point at the beginning of this meeting. That's
why I was a little concerned about us focusing
too much time on the code.
MR. LA CAMERA: I think it's a
reflection of the fact that they've been made
gun-shy about litigation that they've
experienced in the past.
MR. SUNSTEIN: The old code had
a enforcement provision that was similar to
this. It had somewhat less in the way of
rewards, and it had somewhat less in the way of
punishment. There was a denial of a seal of
approval, and the informal understanding was
that repeated code violations would become an
issue before the FCC. So one reason for
96
compliance was concern about that, so it is
said.
CHAIRMAN MOONVES: No, no. I'm
having trouble understanding it. This code
board, however it's formed, is going to meet
twice a year to go through 1,500 stations to
see who the good guys are and the bad guys?
MR. SUNSTEIN: This is just a
description of what was under the old code.
There was the old code, which lasted a long,
long time, and then there was the antitrust
challenge, then there was fear, then more
recently there was these principles, which are
fearful both of antitrust challenge and the
absence of such principles, which Congress is
very upset about. This is staring between two
perceived tigers.
CHAIRMAN ORNSTEIN: If we, to
get very quickly back to the antitrust issue,
if we accept the idea that having moved away
from a portion of the code that deals with
advertising issues, we have really gotten away
from the serious core antitrust questions,
there are still, obviously, questions to be
raised about enforcement, but it seems to me
97
that we can then move away from timorousness
and towards boldness in terms of trying to
build some teeth into this, and --
MR. DUHAMEL: Except it's
voluntary. The more teeth you get into it, the
less voluntary it is.
MR. SUNSTEIN: It's voluntary,
vis-a-vis government. It's not voluntary --
MR. DUHAMEL: You got 1,500
broadcasters, and some of them are going to
say, shove it. You get something that's really
wicked, I tell you just some of the small guys,
some of the independent stations, you know,
they're just lucky to be surviving. You know,
they don't have much of a news department, and
you start dumping a lot of stuff on them,
they're going to say, hey, I got other things
to do in this world than voluntarily comply,
and they'll say, we'll take public deals and
just say to Congress, we don't have any money.
MR. SUNSTEIN: I should say I
have no position on this. I just want to hear
what people have to say.
The thing that would seem least
controversial maybe or the special
98
commendations for excellent service
broadcasting, or is that, in itself,
controversial?
CHAIRMAN MOONVES: Well, I don't
think it's controversial. As I said, the
practicality of it, I'm hoping of the 1,500
stations, 1,200 get, you know, the special seal
of approval. And I don't know how this board
does it, and frankly, the ability of the
enforceability of this group is going to be
very difficult.
MR. SUNSTEIN: I see the
problem.
CHAIRMAN ORNSTEIN: There is a
problem here, but let's face it. We either
want a code because we just want to avoid
dealing with any of the issues of public
interest so we can put something out there that
is a bunch of words that has no meaning
whatsoever, or we want a code so that, in
effect, not that there's coercion here, but
that there is at least peer pressure, and that
if these broadcasters want to say, forget it,
we're not going to do anything, then what the
NAB has said about the sterling record of
99
broadcasters in performing public interest and
dealing with the public, there ought to be some
obloguy brought upon these stations, and they
ought to pay a price for it, at least in the
public eye, and if you don't think they should
pay a price for it then, in effect, Bill,
you're aligning yourself with the worst
performers.
MR. DUHAMEL: I'd say that's a
small group, but there's a lot of small
independent stations that are struggling. I'm
talking about the high UHF stations out there,
and they don't have big staffs, and those are
the people -- I can see a lot them just saying,
hey, I'm surviving, and I'm not -- I'm not -- I
just can't do it.
CHAIRMAN MOONVES: Bill, it's a
much larger issue than that because now we're
getting into the question of how voluntary are
we? What are we talking about?
You know, we use the word voluntary and
obligation in the same sentence, and I think we
have to stop doing that, if I may pose the
question without editorializing like my
co-chair.
100
CHAIRMAN ORNSTEIN: Oh, I think
you're editorializing very nicely.
CHAIRMAN MOONVES: All right.
Maybe just a little.
MS. CHARREN: I am so sensitive,
though, Les, to what you're saying, that I
think that for us to set out enforcement
standards that include things like special
public recognition, which means we're telling
the NAB to recognize their good members. I
mean, what kind of organization has to tell
another organization to make nice on people who
are doing good by their own rights?
I think that a paragraph saying that we
hope the industry is going to pay some
attention to the substance of these guidelines
and take appropriate action to encourage more,
you know, paying attention to them is one kind
of thing.
I think -- this is somebody who has spent
her life in front of the FCC asking for things,
so it's not like I object to the FCC saying
things out loud about broadcasting, but I don't
see how the -- what the code is relates to the
FCC overseeing it. I just can't get my arms
101
around that as a way of doing business with
broadcasting.
I think we can say all kinds of things in
the rest of the report that the industry isn't
going to like, and as a president of CBS won't
like either, and maybe will never say them, but
that's where that should get said, and the
enforcement mechanism for this code has to be
within the NAB itself.
And to tell you the truth, given what they
have put out over the last years whenever
they're up against it with issues in terms of
what they're doing right, I tend not to believe
most of it anyway.
MS. SOHN: Norm?
MR. SUNSTEIN: Can I just say
this is the NAB's own mechanism from the old
code. The mechanism is just what they had.
Does anyone here now how it worked?
Because Les's question is very good about can
you oversee 1,500? Has anyone here -- we're
all so young.
MR. MINOW: The way it worked
was at the FCC, if the station came in with the
seal on it, the FCC said, well, they're
102
complying pretty much with the industry
standards, and that's no longer true.
I take very seriously what Les said, but I
want on the record I disagree. Nobody makes
anybody become a broadcaster. Nobody makes
anybody become a broker/dealer. If you decide
to become a broker/dealer, you subscribe to the
NASD. You know that going in. Congress should
do the same thing here.
You want to get the FCC off peoples' back,
the industry has got to regulate more of
itself. If they don't want to, then you're
going to have more and more government and more
and more First Amendment issues.
MS. SOHN: Norm, I've actually a
more sort of basic point to make, and that is
we're a body that's gathered here to make
recommendations to the FCC and to Congress and
to the Vice President. We've already spent all
morning on this code.
Do you have any guarantee that the NAB is
going to adopt it? That's point number 1.
MR. CRUMP: You don't have a
guarantee Congress is going adopt it, Gigi.
All this is is a recommendation.
103
MS. SOHN: I agree, but we were
not formed to make recommendations to the
broadcasting industry, okay. We have -- we
don't have control over what anybody does,
that's true, but we've gotten some assurance
over the NAB has been at the table -- it's been
a major player here -- that it would be
inclined to adopt such a code, I might feel a
little more comfortable.
I want to make a second point, and it
relates to two things that Bill said. I think,
Bill, you make an excellent case what Peg has
been saying all morning, and I haven't had to
say it because I think it's pretty obvious,
that the fact that a significant number of
broadcasters can say "go to hell" is the reason
why we need minimum guidelines.
MR. MINOW: Is the reason what,
Gigi?
MS. SOHN: That we need some
sort of minimum guidelines, and that's why this
afternoon discussion is going to be very
important.
Voluntary, you're right, it is voluntary,
and I am troubled by the mix of voluntary
104
enforcement, and I am very concerned, and I'd
like to find a way we can legally put teeth
into this. I'm not so sure.
You're second point, Bill, is that, well,
some broadcasters, they're small, they're this,
they're that, they can't afford. I have to
agree with Newt on this point. Turn your
license back in. If you can't do it, there's
somebody else who will. There has to be a
certain base minimum about which you serve the
public interests. You just can't say, I don't
have enough money justify my license. If you
don't have enough money, go sell donuts.
MR. DUHAMEL: The things we got
to get down to are what these minimums are that
you're talking about. Why do you say take
20 percent? A lot of small broadcasters don't
have 20 percent to the bottom line.
MS. SOHN: I'm not saying --
MR. DUHAMEL: You're the one, in
April, proposed that deal.
MS. SOHN: It's a proposal,
Bill.
MR. DUHAMEL: It's outrageous.
MS. CHARREN: That's something
105
else, and we're going to talk about it.
MS. SOHN: I told you, if you
listened to what I said the last meeting, I
said I'm not laying any particular number. The
next meeting I said that.
MR. GOODMON: I still am very
positive about the notion of a code, and we all
know that you don't have to join, you don't
have to comply, but I'm hoping that, as an
industry -- and I believe that, as an industry,
we can do this and make it a source of
professional pride that we subscribe, and we do
it. I mean, that's not hard. I mean,
that's -- and some people will and some people
won't, but I believe that we can do that, and
it's just as simple as that. Here's the code,
and as a mater of pride, we want to follow it
and be part of that and say that we are, just
like we did before, and I believe that will
work. I mean -- and it is certainly preferable
to increased regulations and stuff. I'm
positive about that. I see more positives than
negatives is what I'm trying to shift.
CHAIRMAN ORNSTEIN: To follow
that with what Gigi said, I don't have a
106
problem making recommendations that hit
broadcasters, and it seems to me, going back to
some of the things Cass said early on, if we
look at our various models, I believe, as he
does, that it's preferable to do this without
regulatory mechanisms if we can.
And that, in the first instance, the
industry, on its own, creates a set of
standards and regulates itself internally,
making a regulatory apparatus or legal changes
unnecessary or superfluous, we are all better
served.
Creating a challenge to the industry by
putting as much explicitly as we can out there
in recommendations, including using an
enforcement mechanism that existed before that
is self-enforcement and maybe even enhancing it
a little bit so we can make sure that the
stations that meet those standards are out
there, which means that those that don't are
going to have to justify it in some way in the
court of public opinion, or possibly in the
regulatory arena, would be a preferable way to
go.
And if, in the end, the industry, through
107
its association, does not step up to the plate
in that regard, that any recommendations that
we make to Congress or the agencies ought to
then have more resonance because, in effect,
what the industry itself has said, that we can
do this, would ring more hollow.
So that makes, it seems to me -- that's
why we are spending this much time on a
voluntary code and why it is important to make
sure that it isn't just out there without any
mechanism internally.
MS. CHARREN: Internally?
CHAIRMAN ORNSTEIN: Internally.
That's what we're talking about here.
MR. BENTON: Following up on
this great speech that you've just made, we
have a representative to the NAB here. Are
they open to what we're talking about?
MS. CHARREN: I don't want to
discuss that now with them.
CHAIRMAN ORNSTEIN: We're
talking among ourselves here.
MS. SCOTT: The NAB attorney is
here in Geneva. Do you want me to ask him?
CHAIRMAN ORNSTEIN: Geneva would
108
be a good place for those negotiations.
Let me just add, from what I can gather,
the NAB didn't drop its code like a hot rock
because it wanted to. What ended up happening
after the antitrust challenge was a consent
decree, basically. And there is no sense out
there -- and certainly the broadcasters that we
have on this panel, many NAB members in good
standing and active in the organization, have
given us no indication that would suggest the
NAB would be adverse to returning to a code if
there are no legal or antitrust implications,
isn't that correct?
MR. CRUMP: I think we all speak
for ourselves, but that's certainly my personal
opinion.
MS. CHARREN: Peggy Charren. I
think the best thing is that this is a separate
organization appointed to look at how
broadcasting is working, and for us to have, as
part of this report, these kinds of suggestions
enables the public, that court of public
opinion, to be more specific about what it's
talking about, whether its station is doing
what it should do. It's kind of an education
109
for activist groups in the broadcasting arena
to hold their stations to some kind of
standards. And from that point of view, I
think it's helpful outside the industry, but
not for the FCC to hold the stations to this
standard. I just think like that relationship,
the more likely to get it thrown out. But the
public can say anything it pleases.
CHAIRMAN MOONVES: I think Cass
asked a very good question. I would love to
know how this code board operated way back
when, how it, in fact, functioned, what was its
authority, et cetera, et cetera, et cetera. I
think that's a fairly important question.
MR. BENTON: A lot of it is
built into this code that was passed out that's
20 years old.
CHAIRMAN MOONVES: We have no --
in January, they went through 750 stations and
in June they went through 750 stations, and
these stations got a star and these got a slap
on the wrist. I mean, I think that's an
important question.
MR. CRUZ: And I think the
conversation also indicates there's an
110
evolution of the applicability of these states
over years, and that has changed. So you're
really looking at something that's
metamorphosed over X amount of years, right,
Newt?
MR. MINOW: Right. Right.
CHAIRMAN ORNSTEIN: Well,
perhaps since we have a task force on this
subject, we can ask the task force to
communicate with the NAB and find some people
who are a part of that old board and see what
worked and what didn't and maybe adjust the
standards to fit those recommendations.
One thing we should note here is that if
we do build in a robust reporting requirement,
that it doesn't require an inordinate
expenditure of resources from the stations, but
that works. It will make that task of a board
easier if, in fact, they have what the stations
themselves have done.
MR. SUNSTEIN: I suggest that
what I'll do in the next few days is
incorporate the many good suggestions and wait
for any E-mails or faxes or phone calls and get
out something to the broadcasting -- to the
111
code task force within the week and then get
something out within two weeks to everybody.
MR. RUIZ: Would that include
checking with the NAB as to whether we would
recommend to Congress that all broadcasters
become members of the NAB?
MR. SUNSTEIN: Checking on their
position on that? Happy to do that?.
CHAIRMAN ORNSTEIN: I think more
significant is checking to see whether that's
kosher, whether we can actually do that within
the constitutional framework.
MR. SUNSTEIN: That's a hard
one.
CHAIRMAN ORNSTEIN: That's a
harder question, but if we can surmount that
barrier.
CHAIRMAN MOONVES: And I still
think we have to reserve the right that we have
some serious enforcement questions at this
point.
MR. MINOW: As a member of the
task force, I want to thank Cass for a great
job.
(Clapping.)
112
CHAIRMAN ORNSTEIN: Now, we can
either discuss reporting requirements at this
point in terms of the reports of stations on
their public interest activities, or we could
move to the educational arena.
I suspect the minimum standards is
something we ought to put aside until people
have had a chance to read it, and that's,
obviously, going to be something of real
contention there.
Maybe we should move on to the educational
task force and see how far we can get before we
break for lunch. Perhaps Lois Jean White who
chaired it and Frank Cruz and who drafted up
some of the consensus recommendations.
Ms. White?
MS. WHITE: Thank you,
Mr. Chairman. There is a bit of housekeeping
that we need to do.
CHAIRMAN ORNSTEIN: Move the
microphone a little closer.
MS. WHITE: There's several
documents in front of you. One is dated June
3rd, and it was an operative passed out to you
in error. Would you please turn that back in.
113
At the top it says, Corporation for Public
Broadcasting, June 3rd. This is a copy -- this
is a copy that was meant for the committee
members only for their discussion and
comments.
The one we will be discussing is dated
June 5th, and that's the one that you need.
MS. SOHN: It's one of the
smaller typed.
MR. DUHAMEL: Oh, is that what
that is? That's the small type.
MS. WHITE: Do we have the old
copies here, because they're completely
different. Committee members made changes,
additions and what have you, so you do not need
to be looking at the June 3rd edition.
Okay. The committee met, the committee to
discuss educational programming for the digital
age, met on May 28th via a telephone conference
a conference call, and I'm very pleased to say
that all of the committee members participated,
and I'd like to thank them for doing that. I'd
also like to thank Frank Cruz, as Norm alluded
to, for printing the draft and passing it out.
The committee members also adhered to the
114
timetable, which enabled to us have this
presented to you at this time. I thank you
also for that.
Our committee members are sitting at
various seats of the table; let's see, Frank
Cruz, Peggy Charren, Gigi Sohn, Robert Decherd,
and they will be participating in the
discussion as they wish.
MS. CHARREN: And Richard Masur.
MS. WHITE: Right, Richard. Is
he on?
MS. CHARREN: Yes.
MS. WHITE: He's probably
joining us by telephone.
The report is in three parts. The first
part is an introduction, the second part
consists of a discussion area, and the third
part on the back page is a recommendations from
the subcommittee.
The introduction does not involve the
definition of educational programming, and I
suspect that all of us have our own particular
definitions for that. I'll give you mine if
you'd like to have it. We'll do that later,
too.
115
Our recommendations you can read. I think
the most important area of this report was the
discussion area, and that begins on the second
page. What I'll do is just sort of go down
each bullet, and our committee members may give
their input, whether they agreed, disagreed.
Is that okay? And we'll go as far as we can
go.
The first bullet is allowing public
broadcasters to retain a second channel, which
would further the committee's goal of
increasing public service broadcasting.
I'll read it. If you have some comments,
you may stop.
The second channel would enable public
broadcasters to explore new ways to provide
greater access to local educational, civic,
cultural, minority and other nonprofit
organizations.
Public broadcasting can achieve increased
public service only with guaranteed adequate
public support.
Proposed sources of funding for the
additional public service channels may not be
adequate. Fees imposed upon commercial
116
broadcasters from ancillary and supplemental
services is speculative and may not be
sufficient.
Creation of a trust fund for public
broadcasting by Congress that will adequately
ensure public service in the digital age.
No comments?
Funding of a trust fund to come from
various sources.
Educational trust fund to be administered
by CPB with a percentage going to an alternate
system for independent producers.
Programming content of extra spectrum to
include children's programming, nonfiction,
news, public affairs, KidSpan, local
programming and programming for underserved and
diverse audiences and audiences with
disabilities, long-distance learning and
universal access, job training and arts
education.
The next bullet is trust fund monies
should also go to independent producers and
other noncommercial television providers.
The last bullet on that page, a $5 to $6
billion dollar trust fund for public
117
broadcasting covers only the current annual
appropriation by Congress and not enough for
additional services. New opportunities would
require additional sources for revenue. No
unfunded mandates.
MR. DUHAMEL: Do you have any
idea how much you're talking about?
MS. WHITE: Committee members,
who dealt with that? Was that you, Gigi?
MS. SOHN: What was the
question?
MR. DUHAMEL: The question is
the current $5 to $6 billion dollars, does
anyone have a feel for how much -- (inaudible).
MS. SOHN: Frank should be the
person you ask about that.
MR. CRUZ: It would be difficult
to come up with an accurate figure. Basically
what we mean by the $5 to $6 million basis, is
that would basically cover the annual allotment
Congress makes for public broadcasting in FDR
as it stands now.
If added responsibilities were added on to
public broadcasting, as has been suggested by
some of the proposals, that would be additional
118
funding. That would be determined by whatever
those additional services might be.
MS. CHARREN: That should be
part of what we covered in our discussions of
what our rules have been for how we make all
these things happen, and we didn't feel that
the length of time we were together created an
adequate answer to that question, which is
certainly an important question, but it was
understood, by at least most of us, I think,
that just funding public broadcasting to the
extent it's underground is not enough to cover
a digital age.
MS. WHITE: The next bullet on
page 2 is establishing an adequate trust fund
would get public broadcasting away from the
catch 22 of asking Congress for money, and at
the same time, doing pledge weeks and more
commercial underwriting.
MR. RUIZ: Did you say the trust
it was established -- (inaudible).
MS. CHARREN: Could you speak
into the microphone?
MR. RUIZ: Jose Luis Ruiz. I
think this is dangerous. I don't think you
119
should say this because many stations,
especially the larger ones like WNT or KCT, the
congressional funding is a very small portion
of their annual budget. Their larger portions
come from their membership. A small radio
station perhaps, but they're not going to give
a pledge in that membership base, in that
database that they have established in
Los Angeles and --
MS. WHITE: Remember, this is
just for discussion.
MR. CRUZ: The key word here is
an adequate trust fund.
MS. WHITE: This is not
recommendations now.
MS. SOHN: Just something we
talked about.
MS. CHARREN: This was something
we talked about, but that was not a
recommendation because I don't agree with that
either, and I was on that committee.
MS. WHITE: What we tried to do
is record everything that we discussed, just so
you know.
MS. CHARREN: This was not
120
decisions made by this group.
MS. WHITE: The next bullet is
concern not to fund additional public
broadcasting services from commercial
broadcasters' revenues because they were given
a great gift.
MR. DUHAMEL: What does that
mean? I don't understand the second sentence.
MS. WHITE: Who brought that
up?
MR. DECHERD: I made the point
in response to the renewed suggestion that
we're dealing with a great gift here, and I
thought we had left that subject in November.
MR. DUHAMEL: What?
MR. DECHERD: The idea that
spectrum is this great giveaway to
broadcasters, and therefore, we should extract
from broadcasters some sort of economic
concession, and we got -- these are just
discussions.
MR. DUHAMEL: I agree with you
on that. Just the English, I wasn't sure what
that sentence really said. That's what I was
having trouble with.
121
MS. WHITE: It was taken from
the transcript, so we were talking then.
MS. CHARREN: Peggy Charren.
Extremely disagrees, violently disagrees with
that statement.
MS. WHITE: Please remember that
these are --
CHAIRMAN MOONVES: Very
difficult ideas.
MS. WHITE: Please remember
these are not the recommendations, just the
discussion.
CHAIRMAN MOONVES: Keep going.
MS. WHITE: Concern that delving
into the relationships between CPB, PBS,
Congress and the administration regarding a
trust fund risk getting into highly divisive
and contentious issues.
It is important to give a broad definition
of what educational programming is and then
permit broadcasters to determine how to fulfill
the goal.
This is a discussion, not a
recommendation.
Digital technology provides additional
122
spectrum, and our commission should recommend
constructive ways it can be used and let the
broadcasters decide the details on how to use
it.
Public interest obligations for commercial
broadcasters in the digital era should be the
same as exist now and could involve more
depending on how digital television evolves.
The broadcast industry is spending
billions of its own dollars on public interest
programming, and the broadcast industry will
oppose any additional mandates.
Debate over whether commercial
broadcasters have any or minimal public
interest obligations with multiplex channels,
creating an option for commercial broadcasters
to have a channel with educational
programming.
Belief that commercial broadcasters should
work with those advocates who favor
Congressional funding for public broadcasting.
Chances of getting congressional funding
greatly improve with a united effort.
There should be incentives for commercial
broadcasters to do more public interest
123
programming by having 80 percent of the funds
go to noncommercial broadcasters and 20 percent
to commercial broadcasters.
This is still discussion.
MR. RUIZ: Which one are you
on?
MS. SOHN: This is my suggestion
based on conversations I had with Barry
Diller's staff, that there needs to be -- that
there's no incentive for commercial
broadcasters, commercial producers to produce
good public interest programming.
There's also something I heard. I gave a
speech on a kids program in digital age in
New York, and several producers came up to me
and said, you know, the money is not there for
us to do this stuff.
I thought maybe one way -- and again,
let's not get -- I'm not wedded to these
numbers at all -- that maybe some of the money
should go to commercial producers to do public
interest programming, and you would apply just
as you would apply to CPB for a noncommercial
programmer, you'd apply to CPB to get funding
for a good public interest programming.
124
MS. CHARREN: Let me reiterate
that this was not this committee agreeing to
anything.
MS. SOHN: It was my idea.
MR. DUHAMEL: Incidentally, I
think Gigi has got an interesting point there.
I really do.
CHAIRMAN ORNSTEIN: Well, if we
strongly recommend, and if we ever got anywhere
with the notion of taking revenues from the
auctions and putting them into a fund to
produce programming for public interest
purposes focusing on education, and I think we
have to emphasize here that what we would be
talking about is public interest programming
beyond the specific obligations that exist,
that there, clearly, is a case to be made that
in areas where it's simply not commercially
feasible to have some revenue available.
MS. CHARREN: Let me remind
everybody that this creates a content-
sensitive decision, and that NBC's idea of what
is educational, like "Hang Time" and "Saved by
the Bell" is not really mine.
Now, I am not the genius to decide, but I
125
think whenever you get into public money going
to commercial interests, there's something
that's defined as good, you have the problem of
what is good.
CHAIRMAN ORNSTEIN: In this
case, Peggy, it would be, presumably, either
NBC or an independent producer making an
application to an entity like a foundation,
probably CPB, and if they made an application
for funding for " Saved by the Bell", trying to
make the case that it's not commercially
feasible otherwise and this would serve the
public interest and it's beyond the three hours
that they have, they'd have to make an awfully
good case.
MS. CHARREN: I accept that, and
they were separate caveats that go with this
kind of recommendation.
MR. RUIZ: The recommendation, I
think there's public affairs programs,
informational programs, and there's educational
programs. Most educators are going to tell
you -- and we're not talking about preschool --
that an educational for them to use has to fit
into their curriculum.
126
Nova, for example, is a great science
series, but it's information. A teacher can
recommend that the children see it that evening
and watch it, but they cannot build a class
curriculum around it.
MS. SOHN: Well, that's why that
you'll see one of the recommendations, once we
get to them, is that educational program needs
go beyond classroom learning.
I don't know -- I think the majority -- I
don't want to say there's nobody, but the
majority of the subcommittee thought that
educational programming definitely needed to go
beyond curriculum type stuff. Otherwise, we
wouldn't be talking about it.
MS. WHITE: My definition
doesn't even include that. Would you like to
hear my definition?
MS. CHARREN: If we're talking
about -- be careful because if we're talking
about long-distance learning, that is
classroom.
MS. WHITE: That is true.
MS. CHARREN: This is no longer
the code. This is recommendations for a
127
digital age, and curriculum-related educational
programming is certainly part of what you would
hope would happen in a digital age.
MR. RUIZ: I think if we're
discussing partnership with the libraries and
school systems that are especially involved in
distant learning, we should have something that
is uniform.
CHAIRMAN ORNSTEIN: Well, it
would seem to me that we obviously need to
spend some time discussing what we mean here by
educational programming, and we'll get to your
definition in a minute.
But suggesting that educational
programming goes beyond classroom and
instructional programming, whether it's distant
learning or in the classroom itself, doesn't
mean that it excludes such programming. So I
don't think any of us would suggest that an
educational channel or a channel devoted to
education oriented public interest programming
should set aside instructional learning, but I
doubt, Luis Ruiz, that you want to suggest that
issue do only such programming.
MR. RUIZ: No, I'm suggesting
128
that maybe we add another word here so that
educators don't go crazy.
MS. WHITE: I think we could
probably add it in the definition, more
definition of educational program in the
introduction.
MS. SOHN: You do. You have
some introduction. You say, in the first
sentence, educational and instructional
programming, including local, educational,
children's and other public interest
programming. You can't get much broader than
that.
MS. STRAUSS: I have a question
for Gigi on your suggestion about the 80
percent, 20 percent.
First, were you referring to educational
programming or all public interest
programming? And secondly, if it was
educational, are you proposing that it be above
and beyond the three-hour requirement?
MS. SOHN: Well, again, I would
define educational to include just about every
public interest program. I would define it
very, very broadly, and you know, that's
129
basically -- public broadcast stations were
originally tasked -- Frank, please correct me
on the history if I'm wrong -- to do
educational programming. It was thought of as
this more kind of narrow learning type concept,
and over the years, it's evolved to be much,
much, much, much more.
I don't see any reason to why we should go
back to what it was eons ago. So that's the
answer to question number 1. Tell me what
question number 2 was.
MS. STRAUSS: Well, that kind of
answers it, I think. I was asking whether it
was three hours.
MS. CHARREN: Three hours,
that's a legal mandate. That's a law that says
every broadcaster has to provide, and I think
this doesn't apply to that.
CHAIRMAN ORNSTEIN: No, this is
over and above that. If they want to do
additional programming, that's not feasible.
Charles?
MR. BENTON: Charles Benton. I
think we do disservice to the idea of
educational programming by following Gigi's
130
definition of throwing everything into it that
is public service. I think this is not
appropriate.
Let me speak to Robert Decherd's very
imaginative and even courageous proposal that
he shared with us in April. The struggle
between defining noncommercial television as
educational or public has been the history of
the business. The Ford Foundation put a
quarter of a billion dollars on the line in the
'50s to support educational television.
Cardine Corporation wrote its reports in 1967
giving us a paradigm shift and moving us to
public television. And I think now that we're
talking about educational television, we ought
to be clear about what we're talking about, and
it doesn't mean everything.
And that, it seems to me, was the heart of
what Robert, in responding to the panel as I
remember that we had in January about
educational programming, I think if we are to
adopt the number one proposal here on this
list, the discussion area; namely, allows a
broadcaster to retain a second channel, which
is not recommended by certain members of the
131
committee, for example, if we are to adopt that
idea, the only way Congress is going to go
along with this is having us devote the second
channel down the line because I know it's being
led now, and we're talking not just the next
two or three years, but we're talking the next
50 years, and we got to be thinking about
this.
The only way Congress would allow that is
by having that second channel devoted to
education. Now, I'm not thinking narrowly
curriculum or K-12, but a preschool education,
K-12, open university type of programs,
Mr. Adenburg's original dream following the
British, and then lifelong learning, but those
are not public affairs programming and access
programming, and they're not children's
entertainment programming. Those are different
things, and I think we really do need to be
more explicit about what we mean by education.
And I believe that the other -- the second
general point, which picks up on Luis's point,
is by encouraging the linkage of community
level with the other institutions that have the
word public in them, the public schools and the
132
public library and public television would
really provide the basis then of cooperation at
the community levels with public schools,
public education -- I'm sorry, public schools,
public library and public television where you
have the institutional basis to be level, to be
supplemented by a lot of others that would
support education and programming and then
public interest.
So I think keeping the integrity of the
word education and meaning what we say, not
just it's everything and we're going to throw
in the kitchen sink in public service, and I
think, Bob, that's what you had in mind, and I
really subscribe to that, and I think we ought
to be very clear about that and stick to that
vision because if we depart from that vision,
then I think the idea of the public service
broadcasting, keeping the second channel
instead of having to return it as the
commercial television will is -- just won't
happen.
This could drive that decision long-term,
and I'd like to have your reactions to that and
what you had in mind with your bold and
133
imaginative proposal.
MR. DECHERD: Charles, that is
essentially what I had in mind, and as you'll
recall, the proposal also suggested that if
this 6 megahertz is multiplexed in the future,
that there might be a purpose there well-served
for public interest or political time.
I think it's interesting to look at CPB's
submission here because their focus, Frank, if
I am reading it correctly, is on this very
point. Said another way, with our existing
6 megahertz, we have our hands full providing
adequate funding for this large array of
programming that fits under these other
headings; public broadcasting largely defined,
public affairs, community affairs and so forth,
and I interpreted that document to suggest that
CPB and PBS have a very ambitious agenda
already to take advantage of the potentially
five additional channels which they can program
within the 6 megahertz.
MS. CHARREN: Can I ask you, you
just said -- you mentioned political speech,
free time or something.
MR. DECHERD: Right.
134
MS. CHARREN: Which set of
megahertz were you thinking for that, the
original or the second?
MR. DECHERD: Well, what I had
originally proposed, Peggy, is that if you look
at this additional spectrum as being primarily
for educational purposes as Charles has defined
it, that if you, again working through this
evolutionary logic, believe that that's its
primary purpose, and at the outset we might
have our hands full putting one good and
effective interactive educational channel
across 50 states, but as that evolved and it
became an accepted new medium almost, that it
could then, through multiplexing, have the
capacity to address unserved public interest
requirements or even political speech
requirements.
But that's not its primary purpose, and
then when you then overlay CPB's proposal, I
think where you come back is to the crux of
Charles' point and question; namely, should we
put these two things together as we, as a
committee, address a broad array of public
broadcasting. And I believe it's a mistake to
135
do that.
I believe that we need to follow Frank's
and CPB's lead here and say, today we have a
funding shortage for public broadcasting as
it's evolved. And then, on a separate page, if
you will, say there is this choice, and that
choice is to fund, in a discrete and separate
way, a truly interactive educational national
medium in cooperation with public schools,
public universities, private universities,
public libraries, the people Charles is talking
about, and if other things evolve there, fine,
but the real issue is, can we or should we
propose that as a stand-alone idea which must
be funded on a stand-alone basis.
I think it would be a terrible mistake to,
in effect, realize CPB's fears that we're just
going to create more capacity with no
additional funding and look up in ten years
only to discover that we now have 12 megahertz
allocated to the existing PBS, CPB regime, if
you will, and no funding.
MS. CHARREN: Have you got
specific ideas for funding that second
educational focus?
136
MR. DECHERD: Yes, my proposal
was whatever fees are obtained from the sale of
spectrum in the future, and I said at the
outset, and still believe, if it's so
meritorious and an idea around which all
political philosophies can rally, that Congress
ought to fund it and assume that there will be
funding from public schools and public
universities and people truly interested in
education who are the people we heard from in
January.
I sensed a tremendous amount of enthusiasm
to come up with creative ways to obtain funding
and create that capability, but that's
completely different than the idea of a
permanent trust fund for public broadcasting.
I think to mix those two things is a
nonstarter. I would be opposed to recommending
additional spectrum if that's the only --
MR. BENTON: If I could just add
one final specific, and others that want to
come in here, right now, the most important new
money for schools and libraries is in the New
Schools and Libraries Corporation, which has
two and a quarter billion dollars as a part of
137
the Universal Service Fund, and all that does
is help with connections. It does not help
with programming.
So there is no money for programming short
of thinking about this as a new challenge, and
I come back to my basic point in support of
your proposal, Robert. Unless we can be
explicit about this educational vision, if you
will, and public telecommunications in the
educational from cradle to grave, really, I do
not think it will attract additional funding
nationally. But if we can stick to that, with
two and a quarter billion dollars that are
already there, one might look towards a --
CHAIRMAN ORNSTEIN: Let's see
what areas Gigi has.
MR. RUIZ: I think this is a
very complex idea, mainly because public
broadcasting is so complex. I think some of
these work very well in especially state
networks like Kentucky, Iowa, Alabama, but when
you move into states like California, Texas,
the licensees are so different. You have
anywhere from a community licensee to a
university licensee to a board of education
138
licensee. You have all the overlapping
stations. You have San Bernardino, Orange
County, two in LA, and you're going to leave
all these spectrums there.
CHAIRMAN ORNSTEIN: There are a
couple of additional areas here that we need to
discuss at some length.
We clearly have a problem that exists in
places in California, it exists in Washington,
D.C. where we have two public television
stations, of setting aside one channel and
figuring out which one.
We also have the question which I would
raise, which we've discussed a little bit
before, and I put a suggestion on the table as
well, as to whether this just automatically
under every circumstance goes to a local public
television station or not, and it shouldn't.
MR. GOODMON: Should not.
CHAIRMAN ORNSTEIN: And what I
would suggest is if we can resolve the question
in areas where there's overlap which one moves
forward, that any station be required to submit
a plan for how it would use this spectrum to
fit the objectives that we lay out, and that
139
plan go to the FCC, which can accept it or
reject it. And if it's rejected, then it would
be open for bid by other entities in the
community to come up with a comparable plan so
we can have at least some competition here with
the initial nod to the local broadcast.
We do have to resolve the question of
overlap, but let's see if we can at least come
to a consensus on the other areas.
We, I think, have a consensus that we
should recommend that public broadcasting in
one fashion or another, if we can resolve the
overlap, be able to keep its analog share of
the spectrum rather than turn it back as other
broadcasters will have to do with the proviso
that it be used in a dedicated way to
educational programming which we still need to
define, and that adequate funding be there so
that it not be an unfunded mandate.
I would suggest to you that the obvious
and logical thing, since we're tying this to
the analog spectrum and since, presumably,
public broadcasting is going to lag a little
bit behind many of the others, is that our
recommendation being simply that the funding
140
for -- that come from the auction of the other
analog spectrum, which now in the law go toward
deficit reduction, and it seems logical to
suggest that this be linked directly to that.
Suggesting that the fees go to some
entity. I assume we're talking about the
Corporation for Multibroadcasting to then
allocate it among the other -- these new
entities, and that a portion, which we can
discuss, 15 or 20 percent, be set aside for
open bidding to cover educational programming
that otherwise would not be commercially
feasible by commercial stations over and above
whatever explicit legal obligations they have.
I think we can probably all agree on that.
Where we need to talk a little bit further
is how we define the educational programming
and how we deal with the overlap question and
whether that process that I've described of
creating a plan and bidding for it would be
adequate.
MR. RUIZ: I'm not so sure that
I can agree on all that. I think, first of
all, if we want a level playing field and we
didn't have various underserved audiences, and
141
how many years have we been dealing with the
minority question in broadcasting.
Here we have an opportunity take some very
bold steps and try to level that playing
field. Instead, we have to take safe steps,
and we're going to go safe areas that we've
always been in, we feel comfortable in, and I'm
concerned that if you've got all these analog
systems, wouldn't it be wonderful if we could
build a system that serves reservations and
makes people who feel that they're not part of
the American public, that they've been defeated
in war, that they've lost all their country,
start to become part of the American society
and see programming that reflects their
culture, that reflects them, that reflects them
in positive ways? Can't we see a -- we look at
the ghettos of this country where kids don't
often see themselves in the way they should be
seeing themselves in television in positive
ways.
If you're going to use that system, let's
use it to level that playing field. Let's go
into those areas that we've never gone into
before. Let's go into programming and really
142
bring this country back together, and let's
talk about the underserved. Why give it back
to the overserved?
Are we talking about building a system
that today has more British programming in its
prime time schedule than that underserved
audience? Why do we want to do that?
Public broadcasting is primarily, when you
get into prime time schedules, it's a very
elite group. It's college-educated. They can
afford the membership.
When we talk about the school districts,
who's going to have -- what's the have and
have-nots? It's going to be the poor school
districts that aren't going to have the
capacity. That's who we should focus on.
MS. CHARREN: I suppose, in
theory, that learning piece of the spectrum
should be serving those audiences. The
question is what you do in the meantime, but
we're talking about digital television.
CHAIRMAN ORNSTEIN: And we're
not talking about replicating the prime time
schedule of public broadcasters.
MS. CHARREN: What do you think
143
would happen, for example, with the second --
MR. RUIZ: I think there are
very specific things in here. History will
repeat itself, and those that have will get
more, and those who have not, who don't have,
will, once again, be left out.
MS. CHARREN: How would you
propose to affect the long-distance learning,
for example, of the Native American community?
MR. RUIZ: I would put money
aside for that, and I would say specific money
here would go for the underserved audiences.
If we can write independent producers, can't we
prioritize this money to go to the underserved
audiences, those spectrums to go to the
underserved audiences? Can't we build a trust
to start to level that playing field? Can
anybody argue?
MR. YEE: I support you in the
politics and the history of what you're talking
about because I've been there, and I don't
think that is an automatic guarantee it is
going to go to the present PBS stations --
better not because I won't support it.
But I do think, when asking the commercial
144
counterparts, we're also asking the public
television counterparts to come up with a new
plan, a new vision with accountability built
in, because we're just giving spectrum to that
is one thing, but I don't want to be,
necessarily, going to the same people either.
So I think there are ways of doing that.
It's got to be dealt with in the details.
Certainly it will not be a continuation of
public television as it stands. If it is, I
think a lot of us would just walk out of the
room, but I don't think by -- the issue of a
trust fund is a magnet, and already we're
seeing the magnet taking on a lot of
connotations, a lot of layering.
I think we have to be very careful about
how we do that in terms of microengineering,
because -- (inaudible) in the next two, three
months working it out.
But I believe that the recommendations
that I see a lot of in all these reports,
there's something promising here. I don't want
to kill it. I also don't want to be exclusive
either, and I think we've got to be as
inclusive in this experiment as possible.
145
Start creating set-asides which I do believe
and I think is a way to navigate the language
of that in terms of priorities and
accountability, but I don't think -- I agree
with what you're saying. I think we got to be
a little bit more farsighted rather than
just --
CHAIRMAN MOONVES: I don't think
they're mutually exclusive. I think there is a
way. What is set up here is a mechanism,
basically, for financing educational
programming in a new and exciting way. I don't
think it's impossible to also incorporate
language that says that those that are
underserved should be part of this time, and I
think you could accomplish both.
MR. RUIZ: I would like to see
more than just part of it. I think the
priority should be a level playing field.
CHAIRMAN ORNSTEIN: Well, we may
not be able to come to a complete agreement on
that, but I do think we clearly are trying to
send a signal here, first of all, that this
space would have to be justified by stations as
distinct from and very different from the
146
programming that they do otherwise. It is a
new and different entity. It would have to be
justified in terms of its links to local
communities and organizations that -- with a
cooperative and interactive effort.
And clearly, it is designed to complement
the Schools and Libraries Act, which probably
needs more of a focus on making sure that the
underserved schools are wired first. But just
to wire them isn't going to matter if you don't
have something to put in there, and that's what
we're designed to do, what we're trying to
design something to do.
And we want to make this a competitive
process so that stations don't just get it and,
in a cavalier way, ignore those communities.
So I would hope we can, as James suggests, work
out language.
MR. BENTON: Norm, a very
concrete point, the majority of money in
elementary and secondary education under
Title 1 is aimed specifically to the
underserved. So by tying in this with
legislation, ESEA and the Higher Educational
Act, which is up for renewal next year, and
147
LSTA, these are the three acts to think about
all this in big terms.
CHAIRMAN ORNSTEIN: Just to take
one example, a couple of which you mentioned,
South Dakota Public Television, for example, is
given this opportunity to do educational
programming and given funding to do it. I
would have a hard time imagining that
South Dakota Public Television wouldn't go out
of its way to serve the Indian reservations in
that particular community, and if they came up
with a plan that didn't do that, then the FCC
would be well-justified to reject it and open
it up for bidding and maybe some other group,
including an Indian group, might come forward
with a better plan.
MS. CHARREN: I have a
question. It seems to me that I hear two
funds; one fund is for public interest
programming that is separate from this other
way of thinking about education, which I think
is good and important, and the other is mostly
spectrum auction of a piece for the education
channel or the education hunk of spectrum.
CHAIRMAN ORNSTEIN: Well, I
148
think what we're suggesting, there are actually
three things that are out there on the table.
One is a suggestion that has come from all of
those in the public broadcasting world, which
basically is set up a trust fund for public
broadcasting and fund it so that along the way
it can reach a level of $5 or $6 billion
dollars and we can do what we need to do with
the digital age of public broadcasting.
What Robert is suggesting, what many
others I think agree with, is put that issue
aside from a dedicated channel for educational
purposes and see if we can come up with a
specific link. You know, we may very well want
to recommend that Congress fund a trust fund
for public broadcasting.
MS. CHARREN: So it's two.
CHAIRMAN ORNSTEIN: It's two.
Now, we could also consider a third area,
which is -- and we haven't discussed in any
detail now what to do with the fees, which
maybe small or may not, specifically for
ancillary and supplementary uses, which now are
going to have to be collected by the FCC, and
we also haven't discussed yet, but we will get
149
to, the question of whether funds come in on a
separate track if stations move towards
multiple channels of commercially-driven
programming, which we'll get to at some other
time.
So there may be multiple streams of
funding coming in. The question is what gets
dedicated to what or what we recommend.
MS. CHARREN: At least there are
two big hunks now. If the public system is to
keep its second one, and that is really a way
of thinking about a democratic society and how
it works and how education isn't working, and
it starts to deal with some of the real
problems in the way of this country is going.
It does have two things, and I think that's
good.
CHAIRMAN ORNSTEIN: What Robert
is saying, which I think most of us would agree
with, is we do not want to commingle the idea
of making sure that public broadcasting as an
entity is funded adequately for its move to the
digital age, and adding a new educational
component to this that would be separate and
distinct in term of its programming, though
150
there's some overlap, obviously, and its intent
that we would try to fund separately.
MS. CHARREN: I like that
because I didn't understand that from the
initial thing.
MR. CRUZ: I think it's
evolved. I think, in fairness to Gigi's
proposal and Robert's proposal, what we
attempted to do in the proposal that public
broadcasting, as a whole, has submitted to the
committee members -- and I trust, I hope by now
all of you have gotten a copy of it -- what we
try to do is we try to talk about the need for
the creation of a trust fund so public
broadcasting can do its job well that it's
doing now into the digital era. And then we
look at if you agree to recommend that public
broadcasting take on those second channels and
those added ancillary responsibilities, then
that should be something that should be with a
proviso of adequate funding for that also in
that context. And I think if you look in our
proposal, it's pretty well spelled out in that
context.
MS. SOHN: Well, I really like
151
the way CPB, on pages 7 and 8 of their
proposal, have laid out the types of public
services they provide with a channel. That's
how I would define -- I mean, if we're saying
you can only do educational programming on the
second channel, this is how I would define
that, and it's really very broad, but it may be
too broad for some folks.
MR. CRUZ: Does everyone have a
copy of the public broadcasting proposal? If
not, I've got some extras here that I can let
you have.
MR. DUHAMEL: What's the date?
MR. CRUZ: Well, we dated it for
today, but I had it Fed Exed to everyone, I
think Wednesday or Thursday of last week. But
I've got some extras here.
MS. SOHN: Once everybody has
that in front of them, I would suggest two just
minor, minor changes, editorial changes, but
otherwise that's -- pages 7, bullet point at 7.
MR. DECHERD: May I just make
one observation, and it really relates to
Peggy's point about how these things
momentarily need to be emerged and now we're
152
separating them again.
The idea that on the outset on our part is
that they be separate, and I think the funding
mechanism for them as described are absolutely
the place we should begin, but I will also say
that I think if this works, that the
inclination of the Congress to provide funding
for this separately would be an entirely
different political discussion than funding of
PBS. I mean, it's hard to imagine anyone being
against this for work. There's just an
incredible yearning, I mean back to Jose Luis's
point or anybody. This is one way.
MR. BENTON: If I may add again,
I think it's really important to be clear about
what we're saying. We're talking about
educational outreach.
Here is -- the CPB, in its testimony to
Congress, is passing out this brochure, which
this is sort of the case in point, in effect.
This is Maryland's, Maryland's idea, but it's
kind of the model that CPB is putting out for
the world here.
And here's the analog for a single channel
here, and the four channels, digital television
153
and the multiplexing, the first channel,
children's channel, ready to learn. This is
just one state's idea now. The next one,
Maryland Public Service, Maryland Public
Service. Then there's educational
instructional, and then there's business and
information. Okay. This is one vision of the
use of digital television in a multiplexing
world.
These kinds of things can be done with and
in line with DT's broad definition of all the
public programming there is room for within
this one channel, but what we're talking about
now is phase two. After this has been done
over the next five years, talking about phase
two, which is another channel, and that's the
channel we're talking about now, vis-a-vis
education, because if --
MS. CHARREN: Five channels.
MR. BENTON: In the current
situation, one can do, for example, a national
campaign on literacy, and we need a national
campaign on literacy, can do job retraining
programs. We need job retraining desperately,
and television can play a major role. Those
154
are ideas that can be experimented with in this
role model. But that is not speaking to
Bob's -- to Robert's vision of keeping the next
6 megahertz for education, which then can, in
effect, evolve in its definition so that we can
really roll out, in a major way, mid 2005.
CHAIRMAN ORNSTEIN: Let me just
procedurally suggest something here. Karen had
a comment she had wanted to make. Let me say
that our schedule, in our schedule, we were
supposed to break at 12:30, but we were
actually supposed to stop our discussion around
12:15 for a brief period of public comment,
which is required under the law, and I would
suggest that we take Karen's brief comment and
then open up for our public comments, and when
we return after lunch, we can, I hope in an
expeditious way, move to our discussion of how
we want to define under these circumstances
educational programming, have at least a brief
discussion of where we want to go in terms of
this problem of overlap, and then conclude with
this area and move on to our more contentious
area.
MS. CHARREN: Somebody just gave
155
me this public interest obligation broadcast,
and I don't know where this came from.
MR. GOODMON: I didn't mean for
that to be passed out. I had it copied. On
one side is the current. I want to pass it out
when we talked about public interest
obligations rather than now. On the left side
is what the public interest obligations of
broadcasters are now, and on the right side is
what they had been at various times in the
past.
CHAIRMAN ORNSTEIN: So retain
that for our discussion later on.
MS. WHITE: I actually have more
recommendations. We dealt with some.
CHAIRMAN ORNSTEIN: But some of
these in the pay or play vein, for example, are
in areas that move beyond the specific ones.
We'll take them up.
MS. STRAUSS: This is just a
minor point again. I just noticed that in all
the discussions, again the Disability Act is
not mentioned, so I just wanted to add that
where funds -- I would propose that where funds
are distributed to stations, whether they be
156
public stations or commercial stations, that
there be a condition imposed on those funds
that the programming used or the programming
that uses those funds contain closed
captioning.
CHAIRMAN ORNSTEIN: Yes.
MR. GOODMON: I'm trying to
think through how we keep Robert's idea going
and this is six, seven, eight -- if it's 85
percent, I don't know what it is, but I think
it would be important for us to say we need to
keep this spectrum, and if we set up some
mechanism to work on how to do it, I mean to
define this and somebody set up a task force or
something, to keep this -- I'm afraid this will
be lost. I don't know how. Since this could
be six or eight years from now, we need someway
to --
CHAIRMAN ORNSTEIN: It has to be
embodied in the legislature, basically. Among
other things, the Telecommunications Act
specified that the revenues from any auction of
the analog spectrum would go to the general
treasury, so you need a legislative fix
anyhow.
157
But I think, as Robert said, it strikes me
as being so politically attractive and
nonidealogical that I don't think we'll have
any difficulty finding support if we want to
move this forward.
MS. CHARREN: It's a hell of a
thing to impose.
CHAIRMAN ORNSTEIN: Therefore,
we can pinpoint those who will oppose it.
MS. CHARREN: That's right.
Exactly.
CHAIRMAN ORNSTEIN: We will now
open up for public comment. We're going to
have a second period of public comment in the
afternoon, so I would ask that if there are
public comments, that they be basically
tailored or targeted towards what we've
discussed this morning. Is that appropriate --
or whatever else.
Please identify yourself and step up to
the microphone.
MS. FRENZEL: Hi. My name is
Sue Frenzel, and I live in Minneapolis, and I
think I should tell you a little bit about
myself so you know where I'm coming from.
158
I was raised on a dairy farm. My
background is German Lutheran -- or German
Catholic and Swedish Lutheran, and I was in
Girl Scouts and 4H, and I'm engineer, and I'm
working as a legal secretary right now, and I'm
unemployed, which is why I can be here today.
I worked as a disk jockey. I love the
media, but boy, do I have criticisms for you.
After being here today, more than ever I feel
that the public that owns the airways should be
leasing the airways so that we can cut the plug
on people that aren't representing us.
There's another thing that I'm not sure
the people know because it's just been
discovered in the past 20 years. Men and
women's brains are different. Men have 20 to
40 times the amount of testosterone than a
women does, and those are the things that drive
aggression and that drive lust, and that's why
women are less interested in sexual and violent
programming than men are.
You're not serving us. The majority of
the demographics in the United States is
female, and I've really been thrilled by the
fact that the women on your panel have been so
159
active and that you men have listened to them
so well because they really represent the
majority of the population in the United States
right now.
What else did I want to say? Let me look
at my list really quick. Oh, yeah, this is
really important to me.
Even though my last name is Frenzel, I'm
not related to Congressman Bill Frenzel in
Minnesota, and I care very much that we're not
getting the coverage locally of political
issues that we care about. Our system is being
subverted by the lack of publicity that some of
our politicians get when they do things.
75 percent of this area, of this state, is
a canopy state, and the right now the land is
being cleared by the City of Minneapolis at the
tune of $12 million dollars, and during the
last elections, no one told what the different
city council members in Minneapolis's views on
the stadium were. I knew because I went to the
city council meeting, so I knew where they
stood. By the newspapers wouldn't listen to me
because the newspaper is in favor of the
stadium.
160
So I want to see things like the school
boards. The school board a real hot issue in
Minneapolis right now. It's explosive, and you
didn't see the school board's nominees in front
on the TV.
Do not cover them the way the politicians
want to be covered. Do not give them free ad
time. Ask them the hard questions about what
their stands on controversial issues are so
that we know who they are. I want to know what
their religious background is and if they're
favoring the religious rights or not. That's
all I have.
CHAIRMAN ORNSTEIN: One thing I
should mention to you is there's an
organization now called the Minnesota Compact.
It's not exactly an organization but it's a
coming together of a variety of interests here
in Minnesota, including broadcasters and
newspapers and others with an agreement to move
towards robust, in a voluntary way, robust
coverage of election issues, such as the ones
that you mentioned.
So there is a movement here, which I think
will be a model for the rest of the nation
161
actually, of having responsible broadcasters
and other journalists join together with the
political parties and organizations like the
League of Women Voters to try to do some of the
things.
MS. FRENZEL: Still, I want to
see teeth, and I want the public to have teeth,
and the only way we can have teeth is if we
lease the airways instead of -- (inaudible).
I listened to you talk this morning about
voluntary, and what I see on TV is what we got
right now because of voluntary compliance, and
it's not sufficient, and it's not okay.
CHAIRMAN ORNSTEIN: Go ahead.
Go to the microphone.
MR. VOLARI: Hi, my name is
Steve Volari. I live in St. Paul.
I would, first of all, agree strongly that
I think the airways need to be leased because
we have a lot of large corporations that have a
great deal of money and an ability for freedom
of speech, and you have not a really powerful
mechanism to prevent them from imposing what
they would consider speech out on to the world
versus what we, the citizenry, would say we
162
want to hear and putting the mechanisms into
the digital broadcasting medium would give us
the ability to have a much stronger voice in
terms of how that content is laid out and what
parts of that content belong to what minorities
or what specific political movements we, in our
community or other communities, would feel.
So I would like to see a law set up so
that, for example, you might have -- you might
lease the airways for 10 years at a time and
have a five-year review process, and after that
five years, if a specific company doesn't meet
the review process, then, you know, a third of
their profits are turned into the Congress of
the United States and they're used to fund
either other public television broadcasting
interests or interests that the organization
that handles that funding would use.
My second comment would be specific to
this board, and that would be I was looking at
the schedule, and I was kind of angry because I
felt like 90 percent of the citizens of the
State of Minnesota might want to make a
comment, but if you travel to the State of
Minnesota and put this board together and start
163
talking about the topics but give 30 minutes of
public commentary at 12:15 to 12:30 and 4:15 to
4:30, it becomes very difficult for us who work
during the day to take an hour and a half or so
out of our day and make our comments.
It might be better to set the board up so
that the comments came from -- you might
convene and have an hour and a half or two
hours, from 5:30 to 7:30, and make it a little
bit more publicly available for those of us who
have jobs and work and so forth to come down
and make comments related to how we would like
to see the content laid out and to other parts
of your discussion.
CHAIRMAN ORNSTEIN: I should
note that we've had, in previous meetings, we
had some hearings, but we have a website and we
get a very vigorous amount of public comment
that comes in over the internet.
Karen mentioned the address, and we
welcome and have circulated among all of our
members, and we pay great attention to what we
get that comes in that way that doesn't require
you to come in person.
MS. EDWARDS: And Steve, I would
164
just add to that, certainly the committee wants
to hear from you. And often, the best way to
do that is not to talk here but really write
in. All of the comments that we receive are
circulated, I know they are read and
considered. So don't think of this opportunity
as the only opportunity that you have to share
your views. Certainly you can contact me
directly.
I think one other thing I'd want to say, I
think it's a good point you're making about
having an evening meeting. This committee
doesn't really make decisions itself about
exactly how to run it. It is governed by the
Federal Advisory Committee Act, and that act
has, as part of it, a requirement that the
meetings be held during normal business hours.
So part of your concern here I think needs
to be taken a little bit above this committee,
and you say to your Congressman that you don't
like that, that you think that there is value
to having the meetings be after hours, but just
so you have a bit more context about why the
meetings are scheduled as they are.
CHAIRMAN ORNSTEIN: Mention the
165
website address.
MS. EDWARDS: Sure. You can
access it through the home page of the National
Telecommunications Information and
Administration, and that's WWW.NTIA.DOC.GOV,
and you can get that information right out here
on the table if anybody else wants it as well.
MR. VOLARI: Thank you.
MR. CASHMAN: (Through
interpreter). Good afternoon. My name is Mike
Cashman, and I'm with the State of Minnesota's
Department of Human Services for the Deaf and
Hard of Hearing.
I'm really happy to be able to come to
this meeting at the last minute. I just read
the article this morning.
I have a very important issue that I
wanted to bring up that focuses on captions,
and that's during the -- on the TV stations. I
know that that's their responsibility to have
real-time captioning. It's not really closed
captioning. It's real-time live captioning
that we're talking about here.
I've had different experiences over the
years and different problems with captioning,
166
especially during emergencies, and I just
wanted to let you know about a report that I
have here in Minnesota, especially greater
Minnesota.
Recently during the storms that we had,
the tornados that we had -- and we had a person
here who was from that area in St. Peter.
During that time -- really my goal here is --
the big picture is the public, the airways
there are open to the public but not always to
deaf people, just to let you know that. A lot
of times we're left out.
Yeah, we do have some contact here, some
assistance, and we do have some technology
here, but really, it's not being used, and it's
very important that we let you know that this
is a very important issue because deaf people
are having a hard time accessing that, during
emergencies especially.
I encourage that TV stations have
real-time captioning on their programs during
emergencies. Do you have any questions for
me?
MS. STRAUSS: I'm from the
National Association of the Deaf, and there is
167
an FCC proceeding right now that's going on to
require real-time captioning of emergencies.
And actually, I would also support that in the
NAB voluntary code, that we encourage
broadcasters to have real-time captioning,
which is basically simultaneous captioning.
Although there are, right now, are other laws
in effect or other regulations in effect to
caption emergencies, there are quite a few
holes in those laws.
CHAIRMAN ORNSTEIN: Is that
going to be made easier, Karen, with digital
technology, or is it the same?
MS. STRAUSS: I think it's the
same. I think it's going to probably be made
easier with speech recognition technology. I
don't think digital technology will change
anything, but speech recognition, hopefully,
will because that will bring down the cost
considerably over real-time captioning.
MS. CHARREN: Can I ask Karen a
question? For now when stations aren't
captioning live, do they hold up boards with
warnings on them, oh, your house is about to
get knocked down?
168
MS. STRAUSS: Different stations
do different things. Some stations have
crawls, emergency crawls.
The problem is that when the stations cut
to live programming, more often than not,
there's not live captioning.
MS. CHARREN: I understand that
there isn't live captioning, which is one kind
of technology that they have to put in place,
but it seems pretty easy to hold up some kind
of a board, I mean something.
MR. CASHMAN: (Through
interpreter.) I want to add something to
that. Really, holding up a board would not
work. The FCC, its critical work called --
it's really essential for something to be
shown, like a person, a weather person who is
on the air would interrupt, would have these
interruptions to explain what's going on.
You've seen that on television.
Really, what needs to be happening is
captioning going along the bottom, called a
crawl, and it's not the same. Let's suppose
that there's hail or something like that, it
would say "large hail", and it would be
169
captioned across the bottom. So if a man was
talking, hail, very large hail, size of a
softball, that would be different. That would
be different. It's not called captioning. If
that's essential information, it needs to be
shown.
And also, the crawl, as it's called, will
say, you know, there has been a tornado
touchdown, and that's it. When a weather
person is talking and saying the situation is
really serious and that something is happening,
please take cover immediately, that's not
captioned. That's not shown. So that's a lot
of different information coming across.
MS. STRAUSS: In the recent
tornados that just occurred, that was exactly
the problem that occurred. The crawl was
giving information that the tornado was
occurring, but the newscaster was giving
information minute-by-minute information about
where to go and which community was being hit.
MS. CHARREN: And that wasn't in
the crawl?
MS. STRAUSS: That was not
captioned and not in the crawl.
170
MR. CRUMP: If I might interrupt
here, since I'm a hometown guy and I hear what
you're saying, and I'm most interested in it.
One of the good situations I believe has
occurred, and I'd like to hear your comments on
it, is the fact that several of the stations
now display, when the weathercaster is talking,
a time line as to where the storm is going and
the exact minute that it will arrive so that
you have, going out in front of these storms,
exactly where they're going and the people that
need to take cover at that point.
Have you noticed this, and how did you
feel about that? Was that a good improvement?
MR. CASHMAN: (Through
interpreter.) No, really that's not good
enough. There has to be a greater improvement
than that. Really, there has to be a better
way than that. Really, for deaf people,
they're not happy with that. They're not happy
with the system. It's not working, and I just
feel like that's the most honest, direct answer
I can give you.
Another situation through WCCO Radio, my
boss is hearing, he told me -- he informed me
171
that it was a hard of hearing woman -- two
women in St. Peter, who tried to -- they were
trying to hold their door during the tornado.
They didn't know what was going on. They
didn't know what was happening or what kind of
storm it was. They didn't know. They had no
idea.
So maybe there needs to be something that
says something about that, like the tornado has
been seen. They need to describe in more
detail about what's going on, and it was left
out.
MS. STRAUSS: I have one last
comment. First of all, I did not plant this
person here. And secondly -- although it's
worked out very well -- but secondly, I just
want to say that this is actually a significant
concern of the deaf community and that I've
worked on deaf issues now for about 15 years,
and I would say that this is probably number
one.
I hadn't raised it because I've raised
just generally closed captioning throughout
every conversation, and also because the SEC is
hopefully going to handle it, but I would just
172
love to have this committee address it.
We're talking about life and death. I
mean, this is something that when the SEC
opened up its proceedings, received hundreds,
if not thousands of letters from people around
the country who have said, please, we do not
get the information. Please, we are dying.
Stories of hurricanes, tornados, earthquakes,
people just completely uninformed about
emergencies that are occurring, and this is
probably number one on the issues of the agenda
of deaf people.
MR. LA CAMERA: Karen, do you
have any information or knowledge at all about
the capacity of captioning to provide --
MS. STRAUSS: Well, that's a
really good question. One of the two things
that came out of this proceeding is the fact
that remote captioning is now being used on a
much more wide-scale basis than it had in the
past. So whereas before there were only three
or so main caption centers, as you know now,
there are hundreds around the country, and
there's one in particular, Caption Colorado,
that uses exclusively remote captioning. They
173
use stenographers and transcribers or real-time
captioners that can operate in their homes,
have pagers and be on call so that when an
emergency occurs, the costs are incredibly
low. I think they're around $120 per hour to
real-time caption. They're available quickly.
They are skilled workers.
And like anything else, we create a
requirement. You will have more people become
skilled at a particular area.
So I don't think that the supply is a
problem here. I think it's just a requirement
that's the problem.
MR. SUNSTEIN: Karen, could you
send some language for the code on this?
MS. STRAUSS: Sure.
MR. SUNSTEIN: Maybe we can talk
about it. It will be in --
MS. STRAUSS: I have more than
enough in my office.
MS. CHARREN: Can you describe
for me, if there is a difference, the
difference between a crawl and a caption?
MS. STRAUSS: Well, really, the
point is that we want real-time captioning,
174
live captioning on the spot as it occurs,
spontaneous captioning.
MS. CHARREN: Is a crawl --
MS. STRAUSS: A crawl could be
live, but it isn't always.
MS. CHARREN: It could be the
way the caption hits the screen.
MS. STRAUSS: It doesn't have to
be through closed captioning. Closed
captioning you have to have special equipment.
If it's live and if it's open, that's fine. In
fact, it's even better.
MS. CHARREN: It's goods for me.
MS. STRAUSS: There are a lot of
people who don't have their caption decoders
turned on.
MS. CHARREN: I'm saying that
crawl is good for me, and I can hear.
MS. STRAUSS: Right, would
benefit from open captioning. And in an
emergency, it's not like it has to be
aesthetically pleasing. You want information.
MR. DUHAMEL: Well, there's a
delay, though, on live captioning.
MS. STRAUSS: Well, there may be
175
a few-second delay, but it's still going to be
a lot faster.
MR. DUHAMEL: In Colorado, you
got to dial them up, get them transferred.
MS. STRAUSS: There is going to
a period of time where you have to make the
hookup, but once you make that hookup, it's
simultaneous. It's done now for -- like I
said, it's done for emergencies, and a few
years ago -- or actually, this year it was done
for the flooding in California, last year as
well, and what was good was that because it can
be done remotely, even if there are multiple
emergencies in a given area, such as occurred
in California, they can reach out to other
parts of the country where the emergency is not
occurring and get the real-time captioners to
do it.
CHAIRMAN ORNSTEIN: A couple of
things we should remember here. Definitely we
need to build this in.
I recall that we had testimony from this
emergency task force, which is already ahead of
the curve on some of these areas, but we need
to keep that in mind when we make our
176
recommendations, which is to reserve what is a
tiny portion of this ban for what will -- what
is going to be the state-of-the-art, which can
be, in fact, oriented to households, and they
are very much on top of the question of making
sure that for people who are hearing impaired
or sight impaired, they have ways of reaching
people to let them know that a tornado may hit
their house.
So it may very well be -- we can't count
on it. I think we need to build in as much as
we can now, but a few years down the read, the
technology will, in fact, help to enhance
this.
And already, I wish Rob Glaser were here
because I'm sure he knows the state of the art
of voice recognition software, and my guess is
that by the time we actually get digital
programming out there in any kind of a
widespread way, that much of what we're talking
about in terms of what Colorado is doing or
otherwise that involves individuals sitting and
transcribing will be superfluous, that for
$49.95, we'll be able to get software.
MS. STRAUSS: And just have a
177
skilled or an articulate person reading in the
information. From what I've been told, it's
not here yet. We're not at that point.
CHAIRMAN ORNSTEIN: It's moving
rapidly.
MS. CHARREN: And this is like
public radio, the service public radio provided
in, I think it was Alaska, where there was no
connection in rural areas for emergencies in
public radio. This isn't for the deaf, but
public radio was the way you learned what was
happening that you needed to know. And life
and death is different from entertainment.
CHAIRMAN ORNSTEIN: This is the
essence of serving the community, obviously, of
making sure that it works.
MR. CLIFT: Yes, hi. My name is
Steven Clift, and I have a handout. And just
quickly, by way of background, my name is
Steven Clift, an independent consultant, I
guess, here in Minnesota. For three years I
coordinated the State of Minnesota's government
on-line project. I do a lot of public speaking
on internet democracy around the world, and I
have a lot of interest in how we leverage
178
additional broadcasting as, basically, what I
consider the one-way internet. What ones and
zeros do we send out do we want to have in
everyone's homes, and they're set for digital
TV.
What I've handed out -- and there are
copies on the table for those in the
audience -- is just a good concept that I call
community information syndication.
Stepping -- earlier this morning I was
listening on real audio, so listening to you
via the internet, and I heard you mention local
and what sort of learning from public access
and some of the different -- the things we've
done in the past.
Well, video is very expensive to produce,
but because these are just ones and zeros,
perhaps we think about what web pages, what
images, what small audio files, perhaps what
video files might we want to send out in a
community and how might, within a community,
there be some aggregation. There will be,
obviously, lots of commercial aggregation.
But stemming back to my government on-line
experience, I looked at a screen for three
179
years and thought, how in the heck can we serve
the citizens?
Well, really, it's through television and
telephone after three years of looking at the
web. And so part of it is you think about
government information, and whether it be
police reports or crime watch warnings or
community information like neighborhood picnic
information or information about how to become
involved in a global group.
There's a lot -- there's a lot of stuff
out there that if you can add geography as an
indicator, if you streamed it out, with a
set-top box and served by Teletext in Europe,
you would be able to make available, really in
a very tailored way, bits and pieces of
information just as soon as you watch the
sports, and they'd say look here to see the
stat card on that football player. You'd be
able to make it more possible for other types
of community information to be available.
And so one of the key concepts is the idea
of internet studio. Obviously, you have to
aggregate the stuff in some way.
The other issue is how might it be
180
accessible. Well, digital broadcasting would
be a key one-way vehicle. Really, the most
important information that you would want
everyone to have by virtue of existing for the
people who really only have the one-way
connection to the net. That's really, really
important.
Another area would be just on-line
distribution as well as multi-tech access,
figuring out how to use that information via
telephone and fax back and the like.
And just quickly to conclude, on the
second page, I have community digital
broadcasting where I basically suggest that
perhaps it's one of the most fundamentally
democratic opportunities, one discussion is
election information. Does it have to be just
video? Would you be able to make the last leap
of the election, short nonpartisan constituents
about candidates and information how to contact
candidates for more information. If every
set-top box had it, that's access. Not that
people are going to necessarily use it all the
time, but it can be out there. It's possible.
The big question is, with this convergence
181
of this intermediating force, who aggregates?
Obviously, public television, public
broadcasters, public access, they all could
play a role, and should play a role.
And the other question is what -- you
know, how do you fund aggregation. Also, whose
airways is it on? Is it just on the public
television's bands. Could it be on some of the
bands with some of the commercial broadcasters;
all issues to consider. So thanks for being in
Minnesota. You've got a great view here. You
can see my house. So thanks for coming to
Minnesota, and if you have any questions, feel
free to ask me.
CHAIRMAN ORNSTEIN: Thank you
very much. Okay. If that's what we have for
public comment for now, let's adjourn for
lunch. We'll reconvene at 1:45.
(Whereupon, a recess was taken.)
STATE OF MINNESOTA )
) ss
COUNTY OF ANOKA )
Be it known that I took the foregoing
meeting;
That I was then and there a notary public
in and for the County of Anoka, State of Minnesota;
That the foregoing transcript is a true
and correct transcript of my original stenographic
notes in said matter;
That I am not related to nor an employee
of any of the parties hereto, nor a relative nor
employee of any attorney or counsel employed by the
parties hereto, nor interested in the outcome of
the action;
WITNESS MY HAND AND SEAL THIS 10TH OF
JUNE, 1998.
_________________________
BARBARA J. STROIA, RPR
Notary Public