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Introduction: What's At Stake
Despite the current frenzy surrounding new media, TV is still the most watched and most trusted source of information in the US. Ninety-three percent of Americans watch a network television program in the course of a week, and 69 percent of Americans say TV is the most trusted source of information.
For over seventy years, television station owners have been required by law to serve the "public interest, convenience, and necessity." These broadcasters - worth billions of dollars - use a publicly-owned resource, the airwaves, free of charge because they agree to serve the public interest. Congress has charged the Federal Communications Commission with the responsibility of implementing and enforcing this public interest requirement. Indeed, this is the "touchstone" of the FCC's statutory duty in licensing the public airwaves. Under the Communications Act of 1934, the FCC may issue, renew, or approve the transfer of a broadcast license only upon first finding that doing so will serve the public interest.
The FCC adopted a Notice of Inquiry (NOI) in mid-December opening an opportunity for the public to express its view of the public interest performance of television broadcasters and the public interest potential of digital broadcast technology being deployed around the nation. Although not a proposal for new rules, the NOI allows Americans to tell the FCC and television station owners what we think of our primary source of news, information and entertainment. In effect, the FCC is asking for comment on whether or not it needs to news rules to ensure that broadcasters fulfill their role as "public trustees" of the airwaves.
The FCC's NOI provides us with a critical opportunity to unlock the educational, cultural, and civic potential of television. Since the marketplace cannot alone serve the diverse needs of America's people, we must reassert the principles of society and apply them to the new world of digital television. If advanced television is to serve America as a people and not just as a market, then we must seize this critical time to harness television's full potential to serve the public good.
At stake in this debate is the availability and affordability of a broad range of education, health, public affairs, and government information services. In an increasingly "pay-per" world, we need to reserve free, broadcast outlets for these essential services. Although choice for television programming is most often exercised through a remote control, we now have the opportunity to debate and decide the fundamental speech and access rights of viewers and producers. Will our broadcast system be forever focused on commercialism or can we guarantee a vital public sector at its core?
Who should benefit from the move from analog to digital? The National Association of Broadcasters argues that the transition is just an "even up" trade of spectrum and that broadcasters presently do plenty in the public interest. The public by and large disagrees. More than 80% of Americans - across political parties and gender lines - support the demand for more educational and noncommercial programming. Public interest groups moreover argue that the new capacity of digital broadcasters should be harnessed to promote public interest media.
Areas of Inquiry
The questions guiding the FCC's proceeding are: How can broadcasters best serve the public interest during and after the transition to digital technology? How can broadcasters meet their public interest obligations on both their analog and digital channels during the transition period? And how can broadcasters better serve their communities of license? Specifically, the FCC is seeking comment on the topics below, but welcomes other proposals, requesting that parties articulate a legal bases for their proposals, and explain how they would serve the public interest.
1. Challenges Unique to the Digital Era
  As required by law, a "television licensee shall establish that all of its program services on the existing or advanced spectrum are in the public interest." In this proceeding, the FCC is asking on how to define "in the public interest" in the digital age: whether and how existing public interest obligations should translate into the digital medium.
  1. Multiplexing
    Through digital encoding and compression technology, stations are able to broadcast up to six channels over the same amount of spectrum currently used to provide one analog channel. This format, called multiplexing or multicasting, could turn a broadcaster into a mini cable system. Beyond multicasting and the provision of additional video services, stations will have capacity left over to offer other communications services such as paging, wireless telephony and data transmissions like Internet access. In light of digital broadcasters' ability to provide high-definition programming, multiple, simultaneous standard-definition program streams as well as data-based services, how should existing public interest requirements apply to digital licenses? It is clear that DTV broadcasters must air programming responsive to their communities of license, comply with the statutory requirements concerning political advertising and candidate access, and provide children's educational and informational programming, among other things. But as People for Better Television (PBTV), a broad-based coalition of organizations that petitioned the FCC to begin this proceeding, asks, how do these obligations apply to a DTV broadcaster that chooses to multicast? Do a licensee's public interest obligations attach to the DTV signal as a whole, giving a licensee the discretion to fulfill them on one of its program streams, or to air some of its public interest programming on more than one of its program streams? Should, instead, the obligations attach to each program stream offered by the licensee, such that, for example, a licensee would need to air children's programming on each of its DTV program streams?
    After a year-long examination of digital television and public interest obligations, the President's Advisory Committee on Public Interest Obligations of Digital Broadcasters (Advisory Committee) recommended that digital television broadcasters who choose to multiplex should 1) assume greater public interest obligations and 2) have the flexibility to choose between paying fees, providing a dedicated channel for public interest purposes, or making an in-kind contributions to fulfill these obligations.
  2. Datacasting
    A DTV licensee will be able to transmit telephone directories, stock market updates, computer software distribution, interactive education materials or virtually any other type of information. The DTV standard allows broadcasters to send video, voice and data simultaneously and to provide a range of services dynamically, switching easily and quickly from one type of service to another. These non-broadcast transmissions are called ancillary and supplementary services. How should public interest obligations apply to these ancillary and supplementary services?
    The Advisory Committee, for example, recommended that "[b]roadcasters that choose to implement datacasting should transmit information on behalf of local schools, libraries, community-based organizations, governmental bodies, and public safety institutions." The Advisory Committee report, Charting the Digital Future (www.benton.org/PIAC/report.html), suggests that datacasting that benefits these organizations "should count toward fulfillment of a digital broadcaster's public interest obligations."
2. Responding to the Community
  One of a broadcaster's fundamental public interest obligations is to air programming responsive to the needs and interests of its community of license. However, in April 1998, the Media Access Project and the Benton Foundation published a report, "What's Local about Local Broadcasting?" (www.benton.org/Television/whatslocal.html), that surveyed stations in selected markets regarding the amount of local public affairs programming aired weekly. The survey found that, in the markets five markets examined, 40 commercial broadcasters provided 13,250 total hours of programming -- just 0.35% (46.5 hours) were devoted to local public affairs over a two-week period.
  As broadcasters move forward with their transition to digital technology, the FCC seeks ways to help them serve their communities better and more fully. Technological advances, including digital technology, may allow broadcasters to fulfill these obligations better. Broadcasters might make information about their programming more accessible, and therefore more responsive, to their communities through posting such information on Web sites.
  1. Disclosure Obligations
    Current FCC rules require commercial TV broadcasters to include in their public file, among other things, citizen agreements, records concerning broadcasts by candidates for public office, annual employment reports, letters and e-mail from the public, issues/programming lists, records concerning children's programming commercial limits, and children's television programming reports.
    How could broadcasters use the Internet to ensure that they are responsive to the needs of the public? Should broadcasters be required to make their public files available on the Internet, and for those broadcasters that maintain a station Web site, could or should they use the Internet to interact directly with the public, perhaps by establishing forums in which the public could post comments and engage in an ongoing dialogue about the broadcaster's programming? How could these Web sites and forums be made accessible to persons with disabilities? In addition, the FCC asks whether it would promote responsiveness to the community to require the disclosure of certain information (e.g., the individual ultimately responsible for a program's airing or content) that would enable public input more easily and meaningfully.
    Both the Advisory Committee and PBTV recommend augmenting the FCC's rules to require broadcasters to disclose more about how they are addressing a community's needs and using the Internet to disperse this information, making it easier for citizens to access. The Advisory Committee wrote: " Digital stations should be required to develop a method for determining or "ascertaining" a community's needs and interests. This process of reaching out and involving the community should serve as the station's road map for addressing these needs through news, public affairs, children's and other local programming, and public service announcements. Further public input should be invited on a regular basis through regular postal and electronic mail services. The call for requests for public input should be closed captioned. The stations should regularly report during the year to the public on their efforts."
    The FCC's ascertainment guidelines , which the FCC repealed in the 1980s, set forth specific standards for broadcasters on consulting with community leaders, identifying and responding to community needs and problems through programming, and maintaining and making available various records on their ascertainment procedures. The FCC returns to these policies in this proceeding, asking if the reasons for eliminating those requirements apply to the consideration of these proposals.
  2. Minimum Public Interest Obligations
    The Advisory Committee recommended that the FCC adopt a set of mandatory minimum public interest requirements for digital broadcasters in the following categories:
    - Community Outreach. [see Disclosure section above].
    - Accountability. Whatever the mandatory minimums, stations should report quarterly to the public on their public interest efforts.
    - Public Service Announcements. A minimum commitment to public service announcements should be required of digital television broadcasters, with at least equal emphasis placed on locally produced PSAs addressing a community's local needs. PSAs should run in all day parts including in primetime and at other times of peak viewing.
    - Public Affairs Programming. A minimum commitment to public affairs programming should be required of digital television broadcasters, again with some emphasis on local issues and needs. Such programming should air in visible time periods during the day and evening. Public affairs programming can occur within or outside regularly scheduled newscasts, but is not defined as coverage of news itself.
    - Closed Captioning. A digital broadcast station should provide closed captioning of PSAs, public affairs programming, and political programming. Captioning in these areas should be phased in over the first 4 years of a station's digital broadcasts, where doing so would not impose an undue burden, but should be completed no later than the FCC-imposed deadline of 2006 for captioning most programming [see Disabilities section below].
    The FCC now invites comment. Should the agency establish more specific minimum requirements or guidelines regarding television broadcasters' public interest obligations? Would this make the license renewal process more certain and meaningful by spelling out the public interest standard in more detail? How would such minimum requirements be defined? What additional costs, if any, would those requirements impose? Are there sufficient marketplace incentives to ensure the provision of programming responsive to community needs, obviating the need for additional requirements?
3. Enhancing Access to Media
  One of the main goals of American broadcast regulation is to enhance media access to all people. Congress emphasized this goal when it amended the Communications Act in 1996, refining the FCC's mission as making available "to all people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service ....." In the NOI, the FCC seeks comment on ways broadcasters can use digital technology to provide the public with greater access to the media.
  1. Disabilities
    Digital technology offers great possibilities for broadcasters to make their programming more accessible to persons with disabilities. For example, digital technology could enable viewers to change the size of captions in order to see both captions and the text appearing on a TV screen. In addition, digital technology permits broadcasters to provide several different audio programs, which could make video description more widely available. Both PBTV and the Advisory Committee recommend the expansion of services to persons with disabilities.
  2. Diversity
    Diversity of viewpoint, ownership, and employment have long been and continues to be fundamental public policy goals in American broadcasting. PBTV asks that DTV broadcasters exploit digital technology to reflect the diversity of their communities, through any number of practices. The group explains that network programming cannot respond to diverse needs of each community, and so local stations must come to know and provide service to diverse communities. It asks that broadcasters support the goal of diversity and report quarterly on their efforts. The Advisory Committee Report states that "[d]iversity is an important value in broadcasting, whether it is in programming, political discourse, hiring, promotion, or business opportunities within the industry." As such, it recommends that "broadcasters seize the opportunity inherent in the digital television technology to substantially enhance the diversity available in the television marketplace."
    The FCC asks in what ways -- especially innovative ways unique to DTV -- could and should diversity be encouraged in broadcasting, consistent with relevant constitutional standards? Commenters are encouraged to submit specific proposals.
4. Enhancing Political Discourse
  The Commission has long interpreted the statutory public interest standard as imposing an obligation on broadcast licensees to air programming regarding political campaigns. There are indications, however, that many television broadcasters are providing scant coverage of local public affairs, and what coverage there is may be shrinking. For instance, a 1998 study by the University of Southern California Annenberg School for Communication found that only 0.31% of local news focused on the California governor's race, compared to a figure of 1.8% in 1974. Similarly, as noted above, an April 1998 report by the Media Access Project and the Benton Foundation found that, in the markets examined, 35% of the stations provide no local news, and 25% offer neither local public affairs programming nor local news. The FCC seeks comment on ways that candidate access to television and thus the quality of political discourse might be improved. The goal in this NOI is to initiate a public debate on the question of whether, and how, broadcasters' public interest obligations can be refined to promote democracy and better educate the voting public. This debate will greatly assist the FCC and Congress in determining what, if any, further steps should be taken on these important issues.
  The Advisory Committee recommended that broadcasters provide five minutes of "candidate-centered discourse" each night (between 5:00pm and 11:35 pm) in the thirty days before an election. The FCC asks for comment on this suggestion and any other ways in which it could encourage voluntary efforts by broadcasters. Additionally, a majority of the Advisory Committee supported
  The FCC asks about its authority to require broadcasters to provide "free time" for political candidates and a number of approaches to do so. Finally, it asks for comment on a Advisory Committee recommendation to prohibit television broadcasters from adopting blanket bans on the sale of airtime to state and local candidates.
The Viewers' Bill of Rights
The Benton Foundation will encourage the FCC to move forward to a formal rulemaking process and guarantee that "in the public interest" is a phrase that delivers tangible results for Americans in the digital age of broadcasting. We will ask the FCC to base its decisions on the use of our airwaves on ten core values or principles we call the Viewers Bill of Rights. We ask that you show your support of these principles by contacting the FCC and letting decisionmakers know that the public owns the airwaves and cares how they are used.
The Viewers Bill of Rights are:
1. The Rights Of Viewers Are Paramount -- As the public owns the airwaves, the FCC shall license use of spectrum for broadcast while retaining the public's free speech rights as listeners and speakers and our collective right to have the media function consistently with the ends and purposes of the First Amendment.
2. Commitment To Localism -- Broadcasters are licensed to serve communities, not markets. The needs of communities must be ascertained and addressed by fair, balanced and amble programming. Issues of importance at the local, state, federal, and international level must be given significant coverage, this coverage should be substantive and issue-oriented.
3. The Needs Of Democracy -- The needs of our nation's democracy demand fairness of debate in political coverage. A well-functioning democracy depends on access to information and ideas. An informed citizenry is vital to a democracy that prizes both accountability and deliberation. The needs of an informed citizenry must be addressed above all others. During elections, viewers have a right to coverage of competing candidates and viewpoints. Candidates should be given the opportunity to address voters through a variety of formats including, but not limited to, debates, interviews, features and grants of free air time.
4. Treatment Of News, Public Events, Emergencies, And Controversial Issues -- Communities have a right to fair and balanced treatment of news, public events, emergencies, and controversial public issues. Broadcasting serves educational and democratic functions. To permit the genuine understanding of problems and disagreements, citizens need access to local and national news through factual, fair and unbiased reporting that is clearly distinguished from advertising.
5. Diversity -- Diverse voices shall find expression on the airwaves. The strength of our democracy flows from the diversity of our voices. Broadcasting should provide a platform through which the public will express its views on issues of community interest. As a window to the world for viewers, broadcasting should mirror religious, demographic, racial and ethnic diversity.
6. Accessibility -- Programming must be accessible to all citizens. Persons with hearing and seeing disabilities have full rights to free, over-the-air broadcast programming.
7. A Safehaven For Children -- It is difficult to think of an interest more substantial than the promotion of the welfare of children who watch so much television and rely upon it for so much of the information they receive. All children deserve access to programming that addresses their range of interests and needs at various ages including educational programming that can supplement schooling and good parenting. News and public affairs programming should be made available too in preparing children for the rights and responsibilities of citizenship. Broadcasting must be a safehaven for children -- both providing the tools to parents to help them choose appropriate programming and preventing exposure to excessively violent and harmful programming or exploitative advertising.
8. Education -- Broadcasting makes possible schools without walls and lifelong learning. The opportunities for broadcasting to improve education have extraordinarily high stakes for our nation. The acquisition and use of knowledge is a major resource for our society in the coming century and is pivotal for our quality of life, our economic development, our democracy, and indeed our security. The nation's success depends upon how effectively all members of our society are prepared to use information technologies, which in turn means that the proficiency of our citizens depends upon the quality of our educational offerings and our capacity to utilize information technologies for educational ends. We put our children and ourselves at a competitive disadvantage in the global economy if we do not invest wisely in educational resources. In allocating spectrum for broadcast licenses, the FCC should devote entire channels and sub-channels to the lifelong educational needs of all citizens.
9. Disclosure of Public Interest Activity -- The public has a stake in who uses the airwaves and therefore full disclosure of public interest activity is a requirement of any licensee. Through programming on a variety of media, licensees will report on their process of ascertaining community needs and the programming created to meet those needs. The FCC shall include disclosed public interest activity as well as the community served in the renewal process.
10. Spectrum Fees -- If commercial broadcasting cannot meet all the needs of the public as expressed in the principles above, the broadcast industry should share revenues to support public, noncommercial broadcasting. Those who profit from use of the airwaves must compensate the public for that use - preferably through public interest programming, but through spectrum fees, if necessary.
For additional information about how you can get involved, see this document online at (www.benton.org/DigitalBeat).

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