Statement of Commissioner Gloria Tristani, Dissenting in Part: In the Matter of Reexamination of the Comparative Standards for Noncommercial Educational Applicants -- MM Docket No. 95-31

STATEMENT OF COMMISSIONER GLORIA TRISTANI,
DISSENTING IN PART

In the Matter of Reexamination of the Comparative Standards for
Noncommercial Educational Applicants -- MM Docket No. 95-31

While I generally support the point system adopted in the Order, I would have given an additional boost to stations that promised to provide a minimum level of locally- originated programming. Local-origination programming is one of the foundations on which the noncommercial educational service was built. As the Order notes, the 1967 Carnegie Report, which Congress relied upon to develop and improve noncommercial educational television stations, provided that:

The heart of the system is to be the community . . . [T]he overwhelming proportion of programs will be produced in the stations . . . local skills and crafts will be utilized and tapped . . . Like a good metropolitan newspaper, the local station will reflect the entire nation and the world, while maintaining a firm grasp on the nature and needs of the people it serves.¹

Congress and the Supreme Court have repeatedly endorsed the preservation of local-origination programming as a legitimate and substantial governmental interest. In its official findings underlying the 1992 Cable Act, Congress stated: "A primary objective and benefit of our Nation's system of regulation of television broadcasting is the local origination of programming. There is a substantial government interest in ensuring its continuation."² In Turner, the Supreme Court expressly cited this finding in rejecting the argument that Congress' "legitimate legislative goals" would be satisfied by the preservation of a truncated broadcasting industry providing a minimum level of service.³ Similarly, in Midwest Video, the Court upheld an FCC requirement that cable operators make facilities available for local programming production as reasonably furthering the goal of "increasing the number of outlets for community self-expression."⁴

In the Community Broadcasters Protection Act of 1999 ("CPBA"), Congress recently reaffirmed the value it places on local-origination programming. In the CPBA, Congress provided additional "Class A" protection to certain low-power television stations who have "operated their stations in a manner beneficial to the public good." One of the primary qualifications for Class A status is that the station must broadcast at least 3 hours a week of locally-produced programming. Similarly, in the Commission's recent Order on low power radio, it gave additional points to applicants who would air at least eight hours a day of local-origination programming.

The majority argues that the examples of Class A LPTV and LPFM are inapposite because they involve services that are highly localized, unlike full-service NCE stations that have broader goals and a wider signal range. In adopting the LPFM local program origination rule, however, the Commission expressly stated that "[t]his criterion derives from the service requirements for full-service broadcast stations, which are required to maintain the capacity to originate programming from their main studios."⁵ Thus, awarding additional credit for local-origination was not based on the localized nature of the service, as the majority now asserts, but on the obligation of full-power stations to maintain the ability to produce local programming.

In sum, awarding additional points for local-origination programming would: (1) promote the purpose of the noncommercial educational service; (2) advance Congress' goal of preserving local origination programming; and (3) pass muster in court. The majority's argument against adoption is specious. I therefore dissent.

1. Carnegie Commission on Educational Television, Public Television: A Program For Action 87 (1967).

2. Cable Television Consumer Protection and Competition Act of 1992, 102 P.L. 385 (1992) Sec. 2(a)(10).

3. Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997). See also Chicago Cable Communications, et al. v. Chicago Cable Commission, 879 F.2d 1540 (7th Cir. 1989).

4. United States v. Midwest Video Corp., 406 U.S. 649, 668 (1972). See also National Broadcasting Co. v. United States, 319 U.S. 190, 203 (1943) ("A station should be ready, able, and willing to serve the needs of the local community by broadcasting such outstanding local events as community concerts, civic meetings, local sports events, and other programs of local consumer and social interest.").

5. Report and Order, MM Docket 99-25, para. 144 (rel. January 27, 2000) (emphasis added).