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In re Application of ACCOMACK-NORTHAMPTON BROADCASTING CO., INC., TASLEY, VA. For Construction Permit for New FM Station

File No. BPH-5692


8 F.C.C.2d 357 (1967); 10 Rad. Reg. 2d (P & F) 142

May 24, 1967 Adopted

The Commission, with Commissioner Wadsworth absent, and Commissioner Johnson dissenting and issuing a statement in which Commissioner Cox joined insofar as the issue of commercial policy is concerned.

[*357]  Granted a construction permit to the Accomack-Northampton Broadcasting Co., Inc., for a new class B FM station to operate on channel 277 (103.3 Mc/s), in Tasley, Va.


I would concur in the grant of this application for the only FM station in Tasley, Va., to the owner of the only AM station, with the qualifications and concerns expressed in the similar case of Paris-Bourbon County Broadcasting, Inc., 6 F.C.C. 2d 894, 9 P&F Radio Reg. 2d 122 (1967) (concurring statement), if the only issue were concentration of control of mass media in small communities with no prospects for competing applications.  However, examination of the quantity of advertising proposed by this applicant leads me to dissent.

The standard generally accepted for such a station -- by the Commission's general questionnaire (FCC public notice No. 66-923, Oct. 24, 1966) and the National Association of Broadcasters Code of Good Practice -- is a maximum of 18 minutes of commercials per hour (roughly 1 out of every 3 minutes).  Although this applicant appears at first blush to comply with the 18-minute standard, a careful reading of its conditions and exceptions indicates its standard will be, in fact, "not normally expected to exceed" 33 minutes of commercials per hour.  Here is how the applicant expresses its standard: The maximum amount of commercial matter in any 60-minute segment which the applicant normally proposes is 18 minutes.  The applicant further states that in order to fulfill its obligations to the public and maintain its economic health, the proposed station will find it necessary to increase the percentage of commercial time during special occasions such as before elections,  [*358] Christmas, Old Timers Days, Thanksgiving, during vegetable harvest time, and during periods immediately after an outage due to equipment failures; however, during these periods the commercial time is not normally expected to exceed about 55 percent in any hour.  It is not normally expected to occur on more than about 2 or 3 days in any typical composite week.

I feel constrained to make the observation that, while the issues posed by this case are deep and broad, under our present procedures the outcome in the individual case is really of relatively little significance.

Some would agree with this observation and conclude that, therefore, the Commission should not regulate advertising content at all, leaving the matter wholly in the hands of the station operator.  The "public interest" served by such a role is presumably the listeners' option to turn either his station selector knob or his on-off switch.  The administrative ease offered by such a course is appealing.  The administrative responsibility I find less attractive.

In any event, such cases now come before us; they must be responsibly disposed of.

Few issues in the history of broadcasting have created as much concern and as little consensus as what to do about advertising.

In the 1920's industry and Government representatives alike expressed concern lest this new information medium of radio be turned to private profit at public expense.  Congress gave the matter its attention.

Today the industry recognizes in its Code of Good Practices that commercial practices are relevant to broadcasting in the public interest.

Congress -- even those Members concerned about Commission rulemaking regarding commercial practices -- recognizes the propriety and desirability of some form of Commission regulation of advertising.

The Commission has, since its earliest days, regulated advertising policies -- and been consistently encouraged and supported by the courts in doing so.

Finally, even if one adopts the slogan that "the public interest is what interests the public," the Commission's mail would seem to confirm that little interests the listening public more than commercial practices.

The principal question, therefore, is not whether, but what to do about advertising in broadcasting -- and who should do it.  Even a Commission decision to do nothing (or to delegate to the industry), if that be its view, ought to be adequately analyzed and explained as a form of Commission action in terms of the public interest.  Many relevant questions are, however, for me, as yet unanswered.  I believe they should be addressed in something other than a case-by-case environment.  What is the FCC doing?  Why?  At what price? To produce what result?  What alternative results are there to the same goal?  Why is our present way the best?

Recently I characterized the Commission's fulfillment of its responsibility to uphold the public interest in the quantity of broadcast advertising in these words:

Regulation of commercial content by the FCC has always been a concern to you (the broadcasting industry).  It requires a substantial effort by the Commission staff.  And yet, the FCC has not only failed to enforce standards any stricter than your own, it has actually tended to depress the broadcasting industry's code standards to lower levels.  It was only by dint of industry pressure that the FCC raised its standards from 20 to 18 minutes of commercials per radio hour to comply with your code.  Now the FCC is eroding standards once more by waiver and exception, and I gather the  [*359]  code may give up the fight in despair.  Given this FCC record the public interest might be better served if the industry were left to regulate itself.  If that be the case, and there be no hope for reforming the agency, even basic principles of cost-conscious management would dictate the FCC invest its staff's time elsewhere.

"Reevaluating the Regulatory Role," speech to the Iowa Association of Broadcasters, May 13, 1967.  It was recently reported ("Broadcasting," Mar. 6, 1967, pp. 36-37):

In effect, he [Howard Bell, NAB code director] complained that the Commission had forced the NAB to make its 18-minute rule more flexible.  "We were in the posture of being rigid and inflexible? on the time limits allowed, "and the FCC was more permissive," he said.

At the time I had no idea the characterization would so soon be borne out.  Here is a perfect example.  It is disgusting and discouraging, hilarious and serious, but seems to be firmly fixed as Commission policy.  See also Renewal of Standard Broadcast Station Licenses, 7 F.C.C. 2d 122, 130, 9 P&F Radio Reg. 2d 687, 695 (1967) (dissenting opinion), and Station Inspection Forms Revised, FCC public notice No. 99626, April 25, 1967 (dissenting statement).

When the broadcasting industry and Congress were first considering Federal Regulation of broadcasting it was Secretary of Commerce Herbert C. Hoover who said, "It is inconceivable that we should allow so great a possibility for service to be drowned in advertising chatter." Who in the 1934 Congress would have predicted that its emphasis on "the public interest" in the then new Communications Act would be used to sanction 33 minutes of commercials per broadcast hour a mere 33 years later?  Can the public be offered nothing save the realization that, at this rate, it will be 1994 before the radio hour is totally consumed with commercials?

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