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THE FATE OF PUBLIC IN THE FACE OF FEDERAL FUNDING CUTS

Patricia M. Chuh

7 The 104th Congress has vowed to cut government tions, are at stake. funding for the arts and humanities.' The Corpora- This Comment examines the Congressional debate tion for ("CPB") which distrib- over whether to continue government funding of utes federal funds to the Public Broadcasting Service, public broadcasting in today's economic and techno- National Public , and directly to local public logical climate. Part I discusses public broadcasting's broadcasting stations is a primary target.' Public purpose. Part II sets forth an historical background broadcasting's funds were first threatened when the of public broadcasting. Part III examines the pri- new Republican House Speaker, Newt Gingrich, mary arguments for cutting federal funding of public announced his intentions to abolish federal funding broadcasting and the counter-arguments asserted by of public broadcasting.' the supporters of continued government subsidies. The decision whether Congress will discontinue fi- Part IV analyzes the results of funding cuts on the nancing the CPB was first played out in the House CPB as well as the effects on the small public broad- of Representatives where the House approved budget casting stations it supports. Finally, this Comment cuts for the CPB for 1996 and 1997." The Senate concludes that federal funding for the Corporation restored some of the House's proposed budget cuts.' for Public Broadcasting should be continued due to Even though cuts in appropriations were not as the need for the educational and the cultural pro- devastating as feared, the final decision to slash the gramming provided by public broadcasting. CPB funding could effect as many as 110 million people who watch public .6 Nearly three I. PURPOSE OF PUBLIC BROADCASTING hundred million dollars for the CPB, which finances over one thousand public television and radio sta- The Public Broadcasting Act of 1967' declares

' See Louise Freedberg, S.F. Could Lose Major Arts Fund- 4 Ellen Edwards, Is Public TV a Purple Dinosaur?, WASH. ing: GOP Raid on NEA Would Hit City Hard, S.F. CHRON., POST, Dec. 22, 1994, at Dl; Nina J. Easton and Judith Jan. 13, 1995, at Al. Michaelson, PBS. Behind the Sound and Fury, L.A. TIMES, ' Id.; Karen De Witt, Gingrich Foresees a World Without Jan. 31, 1995, at Al; Not as Bad as Feared, COMM. DAILY, Public Broadcasting,N.Y. TIMES, Dec. 17, 1994, at A9. Feb. 24, 1995, at 2; Ellen Edwards, Speaks Out for IId.; Industry Reaction; Gingrich Announces Plan to 'Zero- Public Television; Vows to Fight GOP 'Extremists, Out' CPB, COMM. DAILY, Dec. 9, 1994, at 3. Ironically, public WASH. POST, Mar. 3, 1995, at BI; Judith Michaelson, Public broadcasting supports many mandates of the new Congress in TV and Radio Face Their Budget Fate, L.A. TiMES, Mar. 15, the Republican Party's Contract With America. "Domino Ef- 1995, at Fl; Rod Dreher, Public Broadcasters Cringe as House fect" Feared, COMM. DAILY, Jan. 11, 1995, at 2. Public broad- Axes Budget; Small Stations Most Vulnerable to Cutbacks Over casting furthers the strengthening of children's education, pro- Next Two Years, WASH. TIMES, Mar. 17, 1995, at A12; Dan motes anti-violence efforts, and encourages family values. Id.; Morgan, House Approves $17.1 Billion in Spending Cuts, See also Text of Republican Contract With America, U.S. NEW- WASH. POST, Mar. 17, 1995, at A7. SwIRE, Nov. 30, 1994. For example, WGBY-TV in Springfield, " David R. Sands, Senate Panel Cuts Back on Cuts; Package Massachusetts broadcasts approximately forty-one hours per of '95 Rescissions Falls Short of House Approval, WASH. week of nonviolent preschool programming that prepares chil- TIMES, Mar. 25, 1995, at A4; Dan Morgan, Senate Panel Re- dren for school. "Domino Effect" Feared, COMM. DAILY, Jan. stores Key Spending Cuts; House Budget Plan Faces More 11, 1995, at 2. WGBY-TV's station manager said, "we'll be re- Change, WASH. POST, Mar. 25, 1995, at Al. placing with The " if Congress succeeds o Easton and Michaelson, supra note 4, at A10. in eradicating public television's endowment. Id. Representative 7 Freedberg, supra note 1, at Al; De Witt, supra note 2, at Edward J. Markey (D-Ma.) says that the PBS is "the most A9. CPB funds 351 television stations and 629 radio stations. family-oriented network on television, and there is no close sec- Easton and Michaelson, supra note 4, at Al. ond." De Witt, supra note 2, at A9. s Public Broadcasting Act of 1967, Pub. L. No. 90-129, 81 COMMLAW CONSPECTUS [Vol. 3 that the Corporation for Public Broadcasting was from producing its own programs.1 The PBS does created to provide all citizens of the have a national schedule that is broadcast by mem- with access to noncommercial educational radio and ber stations during prime and non-. 9 television service.0 The public broadcasting services The National Public Radio ("NPR") was should be responsive to the interest of local commu- chartered in 1970 as public radio's counterpart to the nities and constitute an expression of diversity and PBS." The NPR is also a membership organization excellence."0 The language in the 1967 Act states that supplies national programming services to pub- 2 "that it is in the public interest to encourage the lic radio stations. One fundamental difference be- growth and development of noncommercial educa- tween the PBS and the NPR is that NPR can pro- 2 tional radio and , including duce its own programs. the use of such media for instructional purposes."" Beth Courtney, Executive Director of Louisiana II. HISTORICAL OVERVIEW Educational Television, summarizes the findings of the bipartisan Carnegie Commission as stating that In order to analyze whether the federal govern- the good of the public broadcasting system are to ment should continue the funding of public television provide quality programming for children, to pro- with taxpayers' dollars, it is necessary to review the mote discourse about important current issues, and history and the organizational structure of public to provide lifelong learning.12 Therefore, the pri- broadcasting. mary purpose of public broadcasting can be said to be the fulfillment of the void of cultural and educa- tional programming left by commercial broadcast- A. Public Broadcasting: The Early Years ing." The CPB accomplishes these goals by distrib- 1. Educational Television uting funds received from the federal government to the Public Broadcasting Service, National Public 1 Government funded public broadcasting has its Radio, and local public broadcasting stations. ' roots in providing the public with educational televi- The Public Broadcasting Service ("PBS") was sion.2" The need for a national system of noncom- chartered by the CPB for television in 1969.1 The mercial broadcasting was first noted by the federal PBS is a membership organization that supplies na- government in the Communications Act of 1934.2' tional programming services to local public television The Communications Act of 1934 gave licensing and stations by coordinating the planning, funding, regulatory powers to the Federal Communications scheduling, and distribution of national program- Commission ("FCC"). 25 In 1952, the FCC set aside ming for public television." The PBS is owned and 242 channels exclusively for noncommercial educa- tional television, 2" and promulgated rules and regu- operated by its own member stations, or public tele- lations to govern the licensing and operation of non- vision licensees.1" The PBS is prohibited by law

Stat. 365 (codified with revisions at 47 U.S.C. §390 et seq. VICE BROADCASTING IN A MULTICHANNEL ENVIRONMENT: (1988)). THE HISTORY AND SURVIVAL OF AN 160-61, 185 (Rob- 9 47 U.S.C. § 396(a)(5) (1988). ert K. Avery ed., 1993). Part II.E. 10 47 U.S.C. § 396(a)(4). 'a Id. at 185-86. See infra " 47 U.S.C. § 396(a)(1). 19 LASHLEY, supra note 15, at 48. I0Id. at 31. 12 Statement of Beth Courtney before the House Appropria- tions Subcommittee on Labor, Health and Human Services, and 21 Rowland, supra note 17, at 185-86. 22 Id. Another difference is that NPR has some institutional Education on January 19, 1995, at 1 (on file with CommLaw Conspectus). lobbying authority, while members of PBS have taken that "I See Howard A. White, Fine Tuning the Federal Govern- power away from PBS and placed it in a separate organization, ment's Role in Public Broadcasting,46 FED. COMM. L.J. 491, America's Public Television Stations (APTS). Id. 496-97 (1994). 23 Id. at 159-60. The FCC allocated frequencies for com- 14 De Witt, supra note 2, at A9; See infra Part II.D. mercial use, provided the guidelines for licensing and regula- 12 MARILYN LASHLEY, PUBLIC TELEVISION: PANACEA, tions, and also authorized a study of reserving frequencies for PORK BARREL, OR PUBLIC TRUST? 18, 31 (Greenwood Press public interest use. LASHLEY, supra note 15, at 18. 1992). 24 Id. 16 Id. at 36, 48. 25 Id. 17 Willard D. Rowland, Jr., Public Service Broadcasting in 11 LASHLEY, supra note 15, at 19. The channel assignments the United States: Its Mandate, Institutions, and Conflicts, in included both (VHF) and ultra high fre- THE ANNENBERG WASHINGTON PROGRAM, COMMUNICATIONS quency (UHF) bands. Id. The FCC has subsequently changed POLICY STUDIES NORTHWESTERN UNIVERSITY, PUBLIC SER- the number of channels set aside for educational television. Id.; 1993] PUBLIC BROADCASTING commercial educational television stations.27 requests directly to Congress, since it is not a sepa- , under the Johnson Administration, Con- rate agency with a separate treasury account.30 gress commissioned a task force on educational tele- Funds are disbursed by the Department of Health, vision, the Carnegie Commission on Educational Education and Welfare's Office of Education Television ("Carnegie-I"). s The Carnegie-I report (HEW-OE)3 The CPB distributes monies to pub- recommended the establishment of "a well-financed lic television stations, PBS, NPR, and independent and well-directed educational , sub- producers.38 In addition, public television stations re- stantially larger and far more pervasive and effective ceive funding from the National 29 than that which now exists in the United States." and Information Administration ("NTIA"), 9 an- The 1960's brought about a change in policy which 3 0 other government agency. Congress authorized the included more general programming. The Car- CPB to institute two entities to distribute programs negie Commission also adopted the term "public tel- and provide other services to enhance program- evision" 8 to replace "educational television." " Con- ming.'" Acting within that authority, the CPB cre- gress and the President responded by enacting the ated the PBS in 1969 and Public Broadcasting Act of 1967.82 the NPR in 1970.1 The 1967 Act also created a Board of Directors with fif- teen members who were appointed by the president, 2. The Public Broadcasting Act with Senate confirmation, to govern the administra- tion of a national public broadcasting system.' The Public Broadcasting Act of 1967 ("1967 Act") created the Corporation for Public Broadcast- ing ("CPB") to develop and support noncommercial B. Restructuring of Public Broadcasting: A Part- television and radio as a public service."8 CPB is a nership Agreement Between the CPB and the PBS government sponsored enterprise.8 4 The CPB dis- tributes federal funding and furnishes assistance to Restructuring of public broadcasting occurred in noncommercial telecommunications entities through- the early 1970's under the Nixon administration out the United States. 6 when the CPB and the PBS entered into a partner- Under the 1967 Act, the CPB makes its budgetary ship agreement in order to secure long-term fund-

See also, Hyman H. Goldin, The Federal Communications (B) assist in the establishment and development of one Commission and Educational Television Stations, in CARNEGIE or more systems of to be used for the dis- COMM'N ON EDUC. TV, PUBLIC TELEVISION: A PROGRAM FOR tribution of educational television or radio programs so ACTION (1967). that all noncommercial educational television or radio 27 Id. broadcast stations that with to may broadcast the pro- 28 LASHLEY, supra note 15, at 6. grams at times chosen by the stations; 29 Id.at 30; CARNEGIE COMM'N ON EDUC. TV, PUBLIC (C) assist in the establishment and development of one TELEVISION: A PROGRAM FOR ACTION 3 (1967) (hereinafter or more systems of noncommercial educational television CARNEGIE-I]. or radio broadcast stations throughout the United States; 80 Rowland, supra note 17, at 160-61. (D) carry out its purposes and functions and engage in 3' Id.at 2. The change was probably for public relations its activities in ways that will most effectively assure the purposes and to avoid confusion that public television would be maximum freedom of the noncommercial educational tele- limited to instructional or formal education. White, supra note vision or radio broadcast systems and local stations from 13, at 498. interference with or control of program content or other " Public Broadcasting Act of 1967, Pub. L. No. 90-129, 81 activities. Stat. 365 (codified as amended at 47 U.S.C. §390 et seq (1988)). Id. s Public Broadcasting Act of 1967, Pub. L. No. 90-129, 81 " Id. at §395 (6)(j). Stat. 365 (codified with some differences in language at 47 35 Id. U.S.C. § 396(g)(1) (1988)). The Public Broadcasting Act of 36 47 U.S.C. §396(b). 1967 provides, in pertinent part: 87 LASHLEY, supra note 15, at 32. (g)(1) In order to achieve the objectives and to carry out IId. at 31-33. the purposes of this subpart, as set out in subsection (a), 89 Id. Funds for broadcasting facilities are provided directly the Corporation is authorized to- to stations through the Public Telecommunications Facilities (A) facilitate the full development of educational broad- Program ("PTFP"). PTFP appropriates to the NTIA, which in casting in which programs of high quality, obtained from turn funds local stations with monies as technical improvement diverse sources, will be made available to noncommercial grants. Id. educational television or radio broadcast stations, with 40 Id. at 31. strict adherence to objectivity and balance in all programs 41 Id. or series of programs of a controversial ; "' 47 U.S.C. § 396(c). COMMLAW CONSPECTUS [Vol. 3 ing.43 The partnership agreement overhauled pro- membership on the CPB board from fifteen members gramming operations in the areas of interconnection, to ten, with a maximum of six members to be ap- discretion, and distribution."" The partnership agree- pointed by the President from the President's own ment gave more power to local public television sta- political party.5" In addition, local stations were rep- tions and increased funding for public television."" resented for the first time on the Board, one member Public television stations would receive financing for for television and one for radio.54 programming, promotion, public information, re- search, and representation from the PBS, while the CPB would finance technical operations through a D. Current Distribution of Funds by the CPB contract with the PBS." The distribution of the CPB funds to public broadcasting entities are governed by statute."5 The C. Further Changes CPB can (1) make grants or contract with public broadcasting companies for the acquisition or pro- Public broadcasting experienced further changes duction of programs for use by the public broadcast- during President Carter's Administration. The Ad- ing stations, (2) make payments to public broadcast- ministration transferred the CPB appropriation from ing companies to finance the production or and Welfare's the Department of Health, Education acquisition of public telecommunications services, Office of Education to the House Committee on and (3) arrange for interconnection facilities for dis- Communications Subcommittee on Telecommunica- tribution and transmission of public broadcasting." tions, Consumer Protection, and Finance.4 In addi- Federal money is distributed by the CPB to approxi- tion, the Administration established a trust fund mately one thousand public television and radio sta- with the United States Treasury, allowing monies to 7 and groups including the PBS and the NPR.5 be advanced directly from the Treasury to the tions CPB. 8 The CPB's autonomy was thereby increased The CPB money is used by broadcasters to buy as a result.49 The NTIA and the CPB disbursed equipment, to attract corporate financing for new even more funds directly to local stations, and the programs, and to provide educational and training 58 CPB continued dispensing monies to the PBS for in- courses for local communities. On average, public terconnection5" and program distribution." television stations receive from four percent to forty When President Reagan replaced Carter in the percent of their financing from the CPB." An addi- , the Reagan Administration imple- tional $1.5 billion is raised by stations from corpora- mented substantial changes to the CPB's Board of tions, individuals, foundations, universities, and some Directors. 2 The Reagan Administration reduced legislatures.60 For example, public television stations

43 LASHLEY, supra note 15, at 35. Id. " BROADCASTING, Aug. 13, 1973, at 23. The bill was 5 47 U.S.C. §§ 396(g), (k). signed on Aug. 6, 1973. Id. "a 47 U.S.C. § 396(g)(2). The statute further specifies the " LASHLEY, supra note 15, at 35. The partnership agree- CPB's distribution powers. 47 U.S.C. § 396(k). For example, ment increased the CPB's community service grants to local seventy-five percent of the CPB's monies, after administrative public broadcasting stations. Id. This reduced the CPB's discre- costs, are earmarked for distribution to public television stations tion over programming. Id. in the form of basic grants. 47 U.S.C. § 396(k)(3)(A)(ii)(I). The 46 Id. CPB distributes the other twenty-five percent for national public '" LASHLEY, supra note 15, at 37-38. television programming. 47 U.S.C. § 396(k)(3)(A)(ii)(II). 48 Id. at 38. " De Witt, supra note 2, at A9. CPB funds 351 television 49 Id. stations and 629 radio stations. Easton and Michaelson, supra 60 Interconnection is any system of relays which link broad- note 4, at Al. cast stations with each other and with central broadcast distribu- 5' De Witt, supra note 2, at A9. tion centers by electronic means for simultaneous broadcasting. 6I Id. WTTW in receives a community service CARNEGIE I, supra note 29, at 26, 53. The 1967 Act defines the grant from CPB of six percent, San Francisco's KQED and term interconnection as "the use of equipment, boost- KERA of Dallas receive seven percent, while WCTF in Waco, ers, translators, , communication space satellites, or Texas gets fifty-four percent and KEET in Eureka, California other apparatus or equipment for the transmission and distribu- thirty-eight percent. See infra note 230. See also, Statement of tion of television or radio programs to public telecommunications Jane Krutz on behalf of the Association of America's Public entities." 47 U.S.C. § 397(3). Television Stations before the House Appropriations Subcom- 61 Id. mittee on Labor, Health and Human Service, and Education on 58 LASHLEY, supra note 15, at 38-40. Jan. 19, 1995, at 3 (on file with CommLaw Conspectus). 58 Id. 10 Easton and Michaelson, supra note 4, at Al. Since the 19951 PUBLIC BROADCASTING engage in ambitious fund-raising drives." Viewers Nova, , Nature, The MacNeil/ become members of the public broadcasting station Lehrer Newshour, and .7 by pledging monetary support for the station.62 The national schedule is comprised of programs originating from a variety of production arrange- E. National Public Television Programming ments.72 These include commercial, local production, major public television production, foreign produc- From 1974 to 1990, the Station Program Cooper- tion, international co-production, and consortium ative ("SPC") primarily supplied the national public production arrangements. Commercial arrangements television broadcast schedules.63 The SPC was ad- consist of syndicated reruns.73 When stations broad- ministered by the PBS.6' The SPC provided a sys- cast programs produced in their own facilities, the tem which allowed public television stations to coop- programs are described as local productions. 4 Major eratively choose and fund national programming public television productions are programs produced which was distributed by the PBS.65 The pooling of by major public television stations such as 's resources funded almost half of the National Pro- WGBH and City's WNET.75 Shows gram Service ("NPS"), the most visible public produced abroad are foreign productions, and inter- broadcasting service of that time.6 national co-production are shows produced by a 76 In 1990, the financing and management of na- public and a foreign producer. tional programming was restructured by the PBS Consortium production includes multiple sponsors 7 and the NPS completely replaced the SPC. As a for a single production team or program. 7 result, programming decisions are now made by a Chief Programming Executive of the NPS, with the Public television stations obtain programming by advice of the PBS National Program Service Advi- several means. Stations may purchase programs from sory Committee, which is comprised of public televi- the NPS, which are simultaneously broadcast sion programming professionals and independent throughout the public television system by the producers.6" Almost half of the funding for the NPS PBS. 8 Stations also obtain programming by is provided by the CPB, with public broadcasting purchasing broadcast programs procured from other stations contributing the rest.69 In addition, two producers or houses, air reruns syndicated by thirds of local station's money from Community Ser- commercial networks, or programming produced by vice Grants ("CSG") is returned to national pro- another station, consortium of stations, or a station gramming through the NPS. 70 Programs funded and in cooperation with independent or foreign distributed by SPC/NPS include , producers.79

House Appropriations Subcommittee approved cuts in the CPB's schedule, the children's segment, Saturday's "How To" segment, budget, there has been some concern over whether the various and the fringe time feed of PBS. Id. states who contribute money to public broadcasting stations will 67 Id. at 90. NPS is an effort to combine funding, lower follow the federal government's lead. Not as Bad as Feared, costs, and avoid duplication of programming for the national supra note 4, 225, at 2. For example, Louisiana's six educational schedule. Id. public television stations receive forty-eight percent of their fi- 68 Id. nancing from the state. Id. The executive director and general 69 "Domino Effect" Feared, supra note 3, at 3. Public manager of Louisiana Educational TV has been reassured that broadcasting stations pay a fee to the NPS to air programs that Louisiana would not target public broadcasting. Id. are simultaneously transmitted throughout the public broadcast- " Judith Michaelson, Public TV Stations Cash in on ing system by PBS. LASHLEY, supra note 15, at 91. Drives; Television, L.A. TIMES, Mar. 23, 1995, at F2. 70 Kathy Coe, Congress is Looking at a Dietary Change for 62 Id. For example, WPBA-TV in Atlanta raised $104,000 Public BroadcastingConsumers, NEWS & RECORD (Greensboro, in thirteen days of pledging. The record setting amount may be NC), Jan. 13, 1995, at A8. partially explained by House Speaker Newt Gingrich's thirty 71 LASHLEY, supra note 15, at 89. second advertisement challenging viewers to match his two thou- 72 Id. at 90. sand dollar contribution. Id.; See also, Kathey Alexander, Ging- 7$ Id. rich's public broadcasting spots begin airing locally, ATLANTA 74 Id. J.& CONST., Mar. 5, 1995, at C2. 76 Id. at 110, n. 11. Programs produced by all other public es LASHLEY, supra note 15, at 89-91; CARNEGIE COMM'N television stations were re-classified as local productions in 1986. ON THE FUTURE OF PUBLIC BROADCASTING, A PUBLIC TRUST, Id. 323 (1979) [hereinafter CARNEGIE-II]. 76 Id. at 90. 64 LASHLEY, supra note 15, at 89. 77 Id. 66 Id. 78 Id. at 91. 66 Id. at 89, n.10. The NPS consisted of the prime time 79 Id. COMMLAW CONSPECTUS [Vol. 3

III. 104TH CONGRESS' PLAN TO ELIMI- S.D.), Chairman of the Senate Commerce, Science NATE FEDERAL FUNDING and Transportation Committee, sent a letter to CPB Chairman Henry Cauthen requesting him to Federal funding of public television has enjoyed a privatization plan for public broadcasting.88 bipartisan support in the past in spite of the appro- Pressler stated that "[in today's budget climate, [the priations process,80 which makes the CPB vulnerable CPB's] $300 million annual subsidy simply cannot to executive and congressional pressure.8 Congres- be justified. CPB officials must face this reality and sional leaders in the Republican dominated 104th reinvent their system."8' Pressler attached a detailed Congress have framed an attack on government sub- list of questions to the letter to further request infor- sidies for public broadcasting in terms of financial mation about public broadcasting's financial struc- constraints, citing efforts to balance the federal ture, ideological balance of programming content, budget as a justification for the funding cuts.8 On lobbying budget, and other issues.88 The inquiry December 6, 1994, House Speaker Newt Gingrich contained over 200 questions.89 (R-Ga.) said that Congress should "zero-out" fund- Pressler also wrote separately to President Clin- ing for the CPB in an effort to cut government ton, praising the administration's proposals for the spending. 3 Gingrich further stated that federal privatization of various government agencies. 90 funding of the CPB has resulted in the public paying Pressler indicated in his letter that he would like to taxes "involuntarily" for biased television. 8 ' work with the Clinton Administration in a biparti- The debate over public broadcasting funds began san fashion to privatize the CPB.91 on Capital Hill on January 19, 1995, when the On February 10, 1995, the CPB responded to House Appropriations Subcommittee on Labor, Pressler's questions, submitting charts, graphs, docu- Health and Human Services, and Education heard ments, and other data meant to clear up misconcep- testimony on whether federal funding for the CPB tions about public television, but failing to answer should continue.86 many of the inquiries."2 PBS President Ervin Dug- On January 27, 1995, Senator Larry Pressler (R- gan told Pressler that the CPB's answers were

00 Id. at 41. 88 Rod Dreher, Public TV, Radio Urged to 'Reinvent, a' Id. Some even contend that PBS may be better off without WASH. TIMES, Jan. 30, 1995, at Al. government financing because public broadcasting would be re- 87 Id. lieved from any political pressures. PBS has been criticized for 88 Id. at Al, A6. being overly concerned about offending the powers that be. War- 89 Id. at A6. The inquiry included questions regarding ren Berger, We Interrupt This Program. . .Forever?, N.Y. whether taxpayer funds were used to lobby Congress. Id. TIMES, Jan. 29, 1995, at BI. The most often cited example is Pressler also requested lists of on-air campaigns, mailings and PBS's refusal to produce a sequel to Tales of the City, a highly programming guides, as well as transcripts of all news pro- acclaimed series that included homosexual characters. Id. Even grams, and details of "efforts by recipients of CPB funds to gen- though the series attracted good ratings, Tales of the City drew erate congressional support for continued federal funding." Id. disapproval from Congress and some local PBS stations. Id. This inquiry was apparently prompted by an executive of a However, Jennifer Lawson, the head of programming at PBS, New Orleans public television station, WYES, who urged view- denied the charge and stated the decision not to do a sequel was ers to Louisiana Representative Bob Livingston, the Re- because the co-producer wanted a budget that was three times publican chairman of the House Appropriations Committee, to the amount spent on Tales of the City. Id. voice their support of continued federal funding of public broad- 82 Political Overtones Seen: Gingrich Modifies Stance on casting. Id. As a result of the action taken by WYES, Livingston CPB Funding, COMM. DAILY, Jan. 20, 1995, at 2. has been receiving 300 - 400 calls per day. Political Overtones 82 Industry Reaction, supra note 3, at 3; see also, De Witt, Seen, supra, note 82 at 2. In response to Pressler's questions, supra note 2, at 9. Subsequently, Gingrich backed off from his PBS stated that none of its CPB money was used to lobby sup- attack. Political Overtones Seen, supra note 82, at 2. Gingrich port for continued federal funding of public broadcasting. Dug- said that he would be interested in a proposal that would end gan Cites 'Misconceptions'; Public Broadcasters Respond to federal funding for financially stable stations in big-city markets, Pressler's Questions, COMM. DAILY, Feb. 15, 1995, at 3. while the funding for small-market stations would be continued. 80 Senator urges public TV to draft privatization plan, REU- Easton and Michaelson, supra note 4, at Al. TER BUSINESS REPORT, Jan. 29, 1995. 8 Industry Reaction; Gingrich Announces Plan to 'Zero- 81 Id. Out' CPB, supra note 3. Some even go as far as to state that 82 Duggan cites 'misconceptions', supra note 89, at 3. The government funding of "public broadcasting is immoral because reply to Pressler's inquiry consisted of thousands of , and it forces individuals to pay for the promotion of ideas and pro- took approximately 1,800 man-hours to gather at a cost of about grams whether they agree with them or not." Michael J. Hurd, $92,000. Id. $15,000 of the $92,000 was paid to law firms, for The Crux of the CPB debate, WASH. TIMES, Jan. 29, 1995, at proprietary information review. Ellen Edwards, The $92,000 B5. questions; CPB's voluminous reply to Sen. Pressler's query, "8 See Political Overtones Seen, supra note 82 at 2. WASH. POST, Feb. 14, 1995, at B2. 1995] PUBLIC BROADCASTING meant to clear up any misconceptions about public seven to one, the Senate Appropriations Committee 03 television, some of which were reflected in Pressler's approved a $13.2 billion package of spending cuts, questions.9" For example, Duggan cited the miscon- resulting in a freeze in funding for the CPB at 1995 1 4 ceived idea that PBS is thought of as a network like levels. The $13.2 billion package was significantly ABC, NBC, and CBS, as giving rise to Pressler's re- less than the $17.1 billion approved by the House.08 quest for a comparison of programming and opera- These spending cuts continued when the $141 mil- tional costs of the PBS and the NPR to commercial lion cut by the House for the CPB's proposed budg- 0 networks."' Duggan said it would be impossible to ets for 1996 and 1997 was reduced to $55 million.' compare the costs since the PBS and the NPR are Although the cutbacks have not "zeroed-out" fundamentally different than commercial networks."' funding altogether, the topic of whether to continue On February 23, 1995, the House Appropriations federal financing of public broadcasting has become Subcommittee recommended cutting the CPB fund- a hot partisan issue, symbolizing the Republican ing for fiscal years 1996 and 1997 as part of a $6 party's approach to balancing the budget by reducing 07 billion rescission package.9 6 The funding cut did not government spending. John Porter (R-Ill.), the effect the $285.6 million already allotted to the CPB Chairman of the House Appropriations Subcommit- for this fiscal year.9" The reductions would decrease tee on Labor, Health and Human Services, and Ed- the CPB's funding from $305 million to $258 mil- ucation, said he "would like to see [the public broad- lion for fiscal year 1996 - a fifteen percent cut that casting] industry eventually weaned from dependence 1 08 is equal to a savings of $47 million. 8 The $94 mil- on [government] money." In addition, many lion cut from the CPB's budget for fiscal year 1997 Republicans argue that public broadcasting contin- would reduce the CPB's budget from $315 million to ues to ask Congress for money, while producers of $221, a thirty percent decrease.99 On March 2, 1995, programs like Barney and Friends and Sesame the full House Appropriations Committee approved Street are getting rich off merchandise bearing the the Subcommittee's figures.' The House of Repre- likeness of a purple dinosaur and a big yellow sentatives voted on March 16, 1995 to approve the bird.'0 9 cuts as part of a $17 billion rescission package.' On the other hand, Democratic party members On March 24, 1995, the Senate modified some of generally support government funding for the the cuts made in the house.'0 2 By a vote of twenty- CPB."O For example, Representative David R.

93 Edwards, supra note 92, at B2. supra note 4, at A7. Six Republican voted against the bill and 94 Id. six democrats voted for the rescission package. Id. The House of 72 to 350, an amend- 98 Id. PBS is not a network but a private, nonprofit corpora- also overwhelmingly defeated, by a vote tion governed by public television stations. Id. Each station ment proposed by Phil Crane (R-Ill.) which would further cut makes individual decisions about which programs to carry, while government funding for the CPB by one-third in 1996, two- commercial network affiliates generally carry a complete pro- thirds in 1997, and eliminate all support in 1998. Barney, Ses- gram feed. Id. Business practice of PBS was also cited as an ame Street Survive Doubled Cut Attempt, , Mar. 15, often misconceived area of public broadcasting. Id. PBS Presi- 1995; Michaelson, supra note 4, at Fl. 102 Sands, supra note 5, at A4; Morgan, supra note 5, at Al. dent Duggan said PBS could not respond to Pressler's many 108 Michael Ross, Senate Offers its Version of Spending questions about public television stations' finances since PBS does not direct individual station finances nor control the sta- Cuts, L.A. TIMES, Mar. 25, 1995, at A19. 104 Sands, supra note 5, at A4; Morgan, supra note 5, at Al. tions. Id. 105 Ross, supra note 103, at A19. " Not as Bad as Feared, supra note 4, 225, at 2. The Re- 106 supra note 5, at Al. publican package was authored by John Edward Porter of Illi- Sands, supra note 5, at A4; Morgan, nois, who is the chairman of the House Appropriations Subcom- 107 Id. See generally, Political Overtones Seen, supra note mittee on Labor, Health and Human Services, and Education. 82, at 2 (recapping January 19, 1995 hearing regarding cessa- Representative Nita M. Lowey's (D-NY) proposed amendment tion of CPB funding). to Porter's plan that would have voided the CPB cuts was de- 108 Larson, supra note 96, at Al. Other subcommittee mem- feated by the subcommittee on a party-line vote of 9 to 5. Ruth bers, including Representative Istook (R-Okla.), voiced their Larson, Public TV, Radio Hit Hard in GOP Plan; Democrats support to cease federal financing of public broadcasting. Id. Fail in Bit to Stop Cuts, WASH. TIMES, Feb. 23, 1995, at Al. Representative Dana Rohrabacher (R-Huntington Beach) filed 97 Larson, supra note 96, at Al. a proposed amendment to double the CPB cuts with the House 98 Id. Rules Committee on March 13, 1995. Michaelson, supra note 4, 99 Id. at Fl. Representative Philip M. Crane (R-Ill.) also filed an 10 Edwards, supra note 4, at B1; Michaelson, supra note 4, amendment proposing annual cut of CPB funding each year, ul- at Fl. timately phasing out all government funding. Id. 109 Easton and Michaelson, supra note 4, at Al. 101 Michaelson, supra note 4, at Fl; Dreher, supra note 4, 110 See Michaelson, supra note 4, at Fl; Edwards, supra at A12. The bill was passed by a vote of 227 to 200. Morgan, COMMLAW CONSPECTUS [Vol. 3

Obey (D-Wis.) proposed an amendment to restore 1. Privatization of the CPB ninety percent of the cuts for the CPB."1 Further, on March 3, 1995, Vice President Al Gore warned House Speaker Gingrich and Senator Pressler are that if Republicans tried to decrease funding for the primary leaders in the move to privatize public public broadcasting, the White House would fight broadcasting. The Republican leaders have strong every step of the way." 2 Essential to much of this allies in members of the cable industry, who would support is the view that the attack on public broad- benefit from the discontinuation of government sub- casting is a political strategy employed by the Re- sidies for public broadcasting.'" However, any at- publican party to ease the distaste for future Repub- tempt to eliminate funding and privatize the CPB lican budget cuts."' Furthermore, some Democratic will meet opposition from those in the public broad- strategists predict that the Republicans will point to casting industry as well as the general public. the CPB as an example of a program for the rich that was cut, proving that programs for the poor were not the only programs hit in trimming the a. Arguments in Support of Privatization budget.114 Supporters of privatization of the CPB argue that privatization will save tax dollars and improve pub- A. The Clash Between Advocates of Federal Fund- lic broadcasting."' The main thrust of the argument ing Cuts and Opponents of Budget Cuts is that the public broadcasting industry could sup- port itself on merchandising revenues from popular Advocates of federal funding cuts assert that there shows such as Barney and Friends and Sesame is no longer a need for public broadcasting and that Street." 7 House Speaker Gingrich said that if the public broadcasting is biased and elitist. Those who CPB were "simply run as a commercially rational advocate federal funding cuts argue that public enterprise," the CPB could be a self-sufficient insti- broadcasting should be privatized. On the other tution. 1 Gingrich pointed out that Sesame Street hand, opponents of budget cuts argue that there is grosses $1 billion per year and Barney and Friends still a need for public television. Those opposing grosses $800 million per year. 1 9 Gingrich went on budget cuts assert that public television is cost effec- to say that the PBS channels, which are similar to tive, and that federal funds are needed as necessary cable channels such as Arts & , C- seed money. There are valid arguments on both sides SPAN, ESPN, and History Channel, would remain of the debate. viable even without government funding.' In addition, a Senate Commerce Committee anal- ysis shows that government financing of public broadcasting far exceeds the appropriated amount to note 4, at B1. total gross sales figures for goods and services related to public '1' Michaelson, supra note 4, at Fl. broadcasting in the inquiry submitted to CPB by Senator 112 Id.; Edwards, supra note 4, at B. Pressler, CPB responded that such a figure "is not - and can- Ila Id.; see also, Political Overtones Seen, supra note 82, at not be - known to CPB because its components are not known 2. to any public broadcasting entity from which the information 114 Easton and Michaelson, supra note 4. could be collected." Edwards, supra note 92, at B2. 118 See generally, George Archibald, Public broadcasters 118 COMM. DAILY, February 23, 1995, at 9. House Speaker object to cuts in money already granted; House panel meets to- Gingrich has even promised to personally contribute $2,000 per morrow to discuss $315.4 million appropriated for '97, WASH. year to finance a privately funded network for Sesame Street and TIMES, Feb. 21, 1995, at AI0 (Burton Yale Pines, Vice-Chair- Barney and Friends. Gingrich pledges contribution if PBS net- man and Chief Operating Officer of National Empowerment work goes private, SUN, Jan. 3, 1995, at A6. Television, a private public affairs network that broadcasts to eleven million to eighteen million homes by cable and satellite, .1. Id.; Representative Philip Crane (R-Ill.) also asserts that urged the House Appropriations Subcommittee to consider cuts Sesame Street grosses $1 billion a year in merchandising reve- for fiscal year 1997. Pines compared public broadcasting to "a nue. Edwards, supra note 4, at Dl. Karen Raugust, executive longtime alcoholic," who is addicted to public subsidies. The editor of the Licensing Letter, an industry trade paper, says that only solution, Pines insisted, was for PBS to recognize its addic- Sesame Street made approximately $800 million in retail sales of tion and refuse future federal funding.) toys and other products last year. Sara Groves, Put End to PBS 11a "Assisted Suicide," Not Reform; Privatization Equals Funding, PLAIN DEALER (Cleveland), Mar. 20, 1995, at 1E. Extinction, PBS's Duggan Tells Press Club, COMM. DAILY, The share for the Children's Television Workshop, creators of Jan. 18, 1995, at 2. Sesame Street, was $20 million. Id. 117 Id.; De Witt, supra note 2, at A9. When asked to provide 120 Political Overtones Seen, supra note 82. 19951 PUBLIC BROADCASTING the CPB."2' Public television and radio stations re- tions to fund programming solely by other resources, ceive a monopoly of broadcast licenses worth approx- including advertising revenues. 29 The result would imately $5 billion,122 studio and broadcast equip- be another commercial channel.130 Commercializa- ment grants worth hundreds of millions of dollars,12 tion of public broadcasting is against the public's in- and additional funding from the National Endow- terest because commercial television focuses most of ment for the Arts and the National Endowment for its efforts on advertising and entertainment, special- 31 the Humanities. 24 Further, public broadcasting's izing in professional sports and sensationalism.1 nonprofit tax exempt status is the catalyst for billions Public broadcasting would be forced to offer pro- of dollars in donations." 5 Therefore, the advocates gramming to appeal to the lowest common denomi- for the discontinuation of government financing nator in order to achieve the broadest appeal. 2 Beth claim that privatization of the public broadcasting Courtney, Executive Director of Louisiana Educa- industry will result in the saving of several hundreds tional Television, compares the differences between of million dollars for the federal government. public television and commercial television to the dif- ferences between a public library and a bookstore."' b. Arguments Against Privatization While is driven by ratings and profits, public broadcasting aims to inform and educate its audience.'34 The PBS is a better alterna- Public television cannot serve the gods of education, cul- tive because, as PBS President Ervin .Duggan points ture and citizenship and also serve the god of commerce at out, commercial television is "increasingly violent the same time.""' and exploitative. "35 Public broadcasting supporters argue that priva- Opponents of budget cuts for public broadcasting tization is against the public interest. Ervin Duggan, insist that contributions from business and industry, the president of the PBS, says that the Republican foundations, subscribers, public auctions, and state party's plan to privatize the CPB is similar to "as- and local governments, will not be able to make up sisted suicide," not reform.127 Duggan further stated the financial gap left by Congress if federal support that "[t]o remove 14 percent [of federal funding] is to is discontinued. "' For example, philanthropic and remove the public from television.11 28 of private sector contributions did not meet the expecta- federal support would force public broadcasting sta- tions of Congress and the President during the Rea-

1 George Archibald, Public Broadcasting'sFederal Subsidy nomic Research Associates, informed the CPB's board that Far Exceeds Appropriation, WASH. TIMES, Feb. 19, 1995, at "public broadcasting would likely become much more commer- Al. cial" if federal funding was eliminated. Rod Dreher, CPB I . Id. The Federal Communications Commission sets aside Funding Called Pivotal; Study Envisions Little Revenue From television channels for public television, including VHF (chan- Donations, Licensing, WASH. TIMES, Mar. 15, 1995, at All. nels 2 to 13) stations in major markets like New York's WNET, But cf. Alan Bash, The Public Battle Over Public Television: Channel 13, Chicago's WTTW, Channel 11, St. Louis' KETC, Congress' Budget Ax Aimed at PBS, USA TODAY, Jan. 9, Channel 9, and New Orleans' WYES, Channel 12. Id. The 1995, at D1 (arguing that the public television system is already VHF channels in New York and Chicago are valued at $500 highly commercial because public television depends on viewer million to $700 million on the open market. Id. Public radio also support and corporate sponsors already get on-air advertisements has a similar set-aside system. Id. before and after the programs). 118 Id. The U.S. Commerce Department's National Tele- "' William H. Helme, The Need for Public TV, WASH. communications and Information Administration has dispersed POST, Feb. 11, 1995, at A22. more than $500 million in grants for equipment and facilities "' Manuel Mendoza, Will D.C.'s New Powers-That-Be under the Public Telecommunications Facilities Program. In ad- Pull the Plug on Public TV?, SACRAMENTO BEE, Dec. 18, dition, Congress paid $198.4 million for CPB to replace satel- 1994, at EN4. lites, and further financed for the development of a nationwide s Courtney, supra note 12, at 2. satellite interconnection system for public broadcasting. Id. 14 Bruce Ranes, Think Before Slicing Public Radio's Fund- 124 Id. ing, BILLBOARD, Mar. 25, 1995, at 8. 11' About $6.4 billion, or 43%, of monies raised by public 13 "Assisted Suicide," Not Reform, supra note 116, at 2. broadcasting stations are in the form of federal tax exempt con- 186 LASHLEY, supra note 15, at 77. Not as Bad as Feared, tributions. Id.; but see infra Part III.B. supra, 4, 225, at 2. The general manager of WGBY-TV of 116 Tom Feran, A Child Leads PBS Countering of Ging- Springfield, Massachusetts, which obtains 14.5% of its annual rich, PLAIN DEALER (Cleveland), Jan. 6, 1995, at 1E. budget from CPB, is confident that other sources of funding will 127 "Assisted Suicide," Not Reform, supra note 116, at 2. compensate for the reduction in federal funds. Additionally, 1"' Feran, supra note 126, at 1E. Massachusetts Governor William Weld has indicated that the 129 Id. state would seriously consider assisting public broadcasting sta- 1SO Id. Steven Schwartz, an economist with National Eco- tions if federal funds were eliminated. Id. COMMLAW CONSPECTUS [Vol. 3

3 7 gan Administration, contrary to expectations." Fi- PBS slogan "[i]f we don't do it, who will?" 146 Cable nancial support from foundations and local and state access makes available over 120 channels, soon to be governments also decreased in response to the de- 500 channels, of educational and cultural program- creased federal role in public broadcasting."' ming." Jeff Jarvis, a critic for TV Guide says that Furthermore, the public broadcasting industry "the cable channels now do what PBS has tradition- could not support itself on revenues from popular ally done."" 8 Cable channels such as Arts & En- shows." 9 As PBS President Duggan says, "the num- tertainment, the Discovery Channel, the Learning bers just don't add up."14 Even if the CPB obtained Channel, and Bravo provide viewers with a signifi- a portion of popular shows' revenues, the CPB's cant amount of documentaries, news analyses, and share would be meager since its contribution to the other educational and cultural programming."' For overall costs of the popular programs is typically example, Jones Education Networks, a subsidiary of small."" Michael J. Schoenfeld, the CPB spokes- Jones International cable company, uses satellite, man, argues that it would be unfair for the CPB to and the broadcast and cable infrastructure to provide demand a portion of profits from a show that is access to formal education for individuals in remote greater than the CPB's initial investment in the geographic areas and under-served urban areas, dis- show, since it is "[tihe people who produce these abled individuals, and individuals whose life styles 14 programs [who] take the risk.' ' The money col- are such that conventional education is not an op- lected from popular shows would never equal the tion.' 50 This service is called "distance learning. "151 43 government's c6ntribution. b. Still a Need for Public Broadcasting 2. Public Broadcasting's Purpose Opponents of budget cuts for public broadcasting a. No Longer a Need for Public Television argue that since charges fees for ac- cess, cable is still inaccessible to many viewers, par- Those who favor funding cuts for public broad- ticularly low-income Americans. 15 For instance, casting argue that there is no longer a need for pub- forty percent of American homes either do not re- lic broadcasting in today's marketplace"" because ceive multichannel service or cannot afford cable. 53 advances in technology have made public broadcast- The CPB supplies certain segments of the popula- 5 ing obsolete." These advocates of government fund- tion, especially rural areas, with irreplaceable ser- ing cuts say cable television is the answer to the new vices' 54 through programming that would otherwise

137 Id. at 81. In the past, funding from nonfederal sources Haithman, 1994/Year in Review; Arts and the Coming Storm, generally increased when federal funding decreased. Id. L.A. TIMES, Dec. 25, 1994, at 6. 138 Id. 145 Berger, supra note 81, at BI. 13 Mendoza, supra note 132, at 4. 148 "Domino Effect" Feared, supra note 3, at 2. 14o "Assisted Suicide," Not Reform, supra, note 116, at 2. 14 Id.; Haithman, supra note 144, at 93. " Easton and Michaelson, supra note 4, at Al. Although 14 Berger, supra note 81 at 27. Sesame Street products generate approximately $750 million per year, the nonprofit producers of Sesame Street, Children's Tele- " Id.; "Domino Effect" Feared, supra note 3, at 2; vision Workshop, return the $20 million profit back into the Haithman supra note 144, at 93. But cf. Not as Bad as Feared, show. Public Radio Bracing for Cuts; But NPR Chief Plans to supra note 4, 225, at 2. CPB Chairman Henry Cauthen agreed Make Case for Subsidy, WASH. POST, Jan. 28, 1995, at Dl. with CPB President Richard Carlson that educational services Noting that Sesame Street itself does not receive federal funds, would be the "first and hardest" hit. Id. the proceeds from Sesame Street products could not aid in sup- 130 Statement of Dr. Bernard Luskin, President of Jones porting the public broadcast industry. Id. This is even more Education Networks, before the Labor, Health and Human Ser- clear for public radio. Id. As NPR President Delano Lewis vices & Education Subcommittee of the House Appropriations points out, public radio does not have programs such as "Bar- Committee on January 19, 1995, at 3-4 (on file with CommLaw ney" or "Sesame Street," which could subsidize less popular ra- Conspectus). In partnership with more than 100 Colleges and dio programs. Id. Universities, Jones Education Network carries courses for credit 141 Id. and degree programs. Id. at 4-5. 143 Mendoza, supra note 132 at EN4. In addition, PBS is 181 Id. at 3. currently sharing in the proceeds made from Barney & Friends 13 Bennett Roth, Republican ax aimed at PBS could take merchandise sales. Id. By the terms of their agreement with slice out of Barney, CHRONICLE, Dec. 24, 1994, at PBS, the creators of Barney & Friends are obligated to fully Al. reimburse PBS for its outlay. Easton and Michaelson, supra 1" Max Frankel, Word & Image; PBS's Wheel of Fortune, note 4, at A10. N.Y. TIMES MAGAZINE, Jan. 8, 1995, at 16. 144 "Domino Effect" Feared, supra note 3, at 2; Diane 154 "Domino Effect" Feared,supra note 3, at 3. 1995l PUBLIC BROADCASTING be unavailable.155 For instance, in Louisiana, where Public broadcasting is the major producer of pro- one third of the children live in , public tele- gramming for children.' Supporters of public tele- vision supplies students with satellite-based distance vision contend that only public stations have the lati- learning and interactive classrooms."' The PBS cov- tude to run as many as three or four hours of ers almost 100% of the country, while cable reaches Sesame Street each day, uninterrupted by commer- only sixty-six percent of America's homes."' cials.' Opponents respond that public television Further, there remains a need for public broad- stations broadcast several hours of Sesame Street be- casting that is free from marketplace pressures and cause they have no other programming of interest to ratings.1 58 Over 180 million people are served by viewers. public broadcasting each month. 59 Without assis- Public broadcasting also provides a source of edu- 61 7 tance from the CPB, programming for minority cational resources. More that one million children audiences, which can not be easily found on com- in the state of Georgia as well as millions of other mercial networks, will be lost.' 0 For example, if children across rural America attend school via pub- KSJV-FM of Fresno, California lost its $917,000 lic television."' In addition to offering educational funding from the CPB (which is fifty-three percent shows like Sesame Street and for of its annual budget), two million spanish speaking children, the PBS also televises college level courses 69 listeners would lose a major source of news and pub- for adults. For example, Coastline Community lic affairs. 6' College in Orange County, California, telecasts doc- umentary-style classes on KOCE-TV, which serves The true value of public broadcasting is its will- about four thousand students. 70 ingness to create programs on the basis of educa- The PBS also pro- vides access to satellite-based distance learning and tional value, and not just for their popularity or sala- 7 interactive classrooms.'1 bility. 6 Commercial networks have turned away from documentaries and other in-depth program- ming, leaving public broadcasting to become the 3. A Neutral Voice principal source of humanities and science program- ming.' 63 Altogether, commercial television has a. Allegations of Bias proved less willing than the CPB to take risks in de- veloping ambitious programs because of its reliance Conservatives have repeatedly accused public on ratings.' broadcasting of supporting a liberal agenda. 72 In

15 De Witt, supra note 2, at A9. Poverty, a five hour report on poverty in the 1960's, and e "Domino Effect" Feared, supra note 3, at 3. Messages From , a four hour program on the . 157 Ann Hodges, Public TV Takes Up Sword for Funds, Id. , Jan. 6, 1995, at 3. 104 Leonard Garment, Clinton & Congress; How Not to Fix 158 Berger, supra note 81, at 27. There are others who have Public Broadcasting, N.Y. TIMES, Dec. 21, 1994, at A27. noted that ratings have become more important at PBS. Bill '" De Witt, supra note 2, at A9. James W. Carey, a profes- Moyers, PBS producer and host, comments "[ilf we start think- sor of journalism at , says that public ing of attracting an audience instead of serving constituencies, broadcasting has been the major source of children's programs, that's a problem. We must again ask ourselves, what is our mis- including innovative entertainment as well as educational pro- sion?" Id. grams. Id. He says "[clhildren are a minority audience, and no 159 De Witt, supra note 2, at A9. one has shown an interest, except a commercial one, in them 180 Easton and Michaelson, supra note 4, at A9; De Witt except public broadcasting." Id. supra note 2, at A9. Speaking for the public television stations 180 Spare Public Broadcasting, supra note 163, at Section 4 that America's Public Television Stations represents, APTS page 8. President David Brugger said that APTS "do not believe ... 167 Id. that the programs and services that public television stations 168 Id. have delivered . . . will continue without some federal funding." 169 Berger, supra note 81, at 27. Assignments and quizzes Not as Bad as Feared, supra note 4, 225, at 2. are mailed or faxed to college telecourse instructors who are .81 Easton and Michaelson, supra note 4, at A9. available for office or hours. Tina Nguyen, Cuts may 163 Serving Elite Folks, and Common Ones Too; Public TV, mean bleak picture for TV courses, L.A. TIMES, Feb. 12, 1995, a Valuable Cultural Tool, is on Gingrich Blacklist, L.A. TIMES, at B1. Examinations are taken on the campus. Id. Telecourses Jan. 9, 1995, at B6. range from Chinese brush painting, geology, or English litera- 1e3 Spare Public Broadcasting,N.Y. TIMES, Dec. 25, 1994, ture. Id. at Sec. 4 page 8. New PBS titles will include The American "0 Nguyen, supra note 169. Cinema, a series of ten one hour programs about the movies, 171 Spare Public Broadcasting, supra note 163, at Section 4 Inside the F.B.I., a four hour history program, What Can We page 8. Do About Violence?, a special, America's War on 178 Peter Johnson, Gingrich Wants to Pull Plug on Public COMMLAW CONSPECTUS [Vol. 3 support of these allegation, advocates of federal cast stations are accountable to public authorities be- funding cuts refer mainly to alleged biased news re- cause they receive public money.'81 Ceasing the allo- porting. In one instance, NPR correspondent Nina cation of federal funds will remove officials' capacity Totenberg interjected her own liberal opinions dur- to influence the system.'82 As one reporter writes: ing her coverage of the televised Clarence Thomas "[i]f Congress gets out of the business of supporting hearings on WFDD.'7 Another example of public public broadcasting, that sword of Damocles [the broadcasting's biased news reporting is the on-air congressional appropriations process] is gone, and cheering of President Clinton's victory during Bos- there is little to prevent public television and radio ton's WGBH's coverage of election night.' 74 Other from becoming a genuinely liberal alternative to the types of programming are also under attack. Armis- conservative ideology now spreading through the ' tead Maupin's Tales of the City has been commercial airwaves. "183 reproached by conservative groups and lawmakers Criticisms of bias in public television have only because it focused on life among a group of people been directed at a handful of shows, and not the bulk living in an apartment house in the 1970's, including of public . 8" In the CPB's homosexual characters.' 75 response to Pressler, PBS President Duggan said In his inquiry addressed to the CPB, Pressler spe- that only ten to twelve hours, the "tiniest fraction," cifically questioned Frontline, The American Expe- of the total 3500 hours of public television's pro- rience, and American Playhouse, which have often gramming could be considered controversial.' 85 The been criticized as being biased.'78 Furthermore, the CPB President Richard Carlson points out that Center for Media and Public Affairs conducted a Congress should not "throw out the baby with the study in 1992, reporting that PBS documentaries bath water."' 86 lack "diversity and balance" and consistently favor positions. 1 7 liberal 4. Public Broadcasting Ideologically Based Public broadcasting is criticized for not following programming guidelines, established in 1946 by the a. Broadcasting for the Elite Federal Communications Commission, which re- quire balanced programming.' 78 In addition, the PBS has also been denounced as elitist, catering to Public Broadcasting Act mandates "strict adherence a highly educated audience. 87 House Speaker Ging- to objectivity and balance" in all programs or series rich calls public television a toy for "rich, upper- 1 79 88 of programs of a controversial nature. class people."' Public broadcast programming of classical and British comedies and dramas are charged as catering exclusively to a highly educated, b. Counter Arguments to Charges of Bias discriminating audience.' 89 Republican consultant Steve Hofman says the move to cut public broadcast- Advocates of full federal funding of public televi- ing's government funding originates from the belief sion maintain that the cessation of financing to the that if Republicans do not deal with elite federal CPB would not address the problem of bias in public subsidies, then other spending cuts from the federal broadcasting.' 80 Under today's system, Public broad- budget will not seem politically legitimate. 90

TV Funding, USA TODAY, Dec. 8, 1994, at D3. the Public Broadcasting Act provision mandating objectivity and 178 Coe, supra note 70, at A8. balance was not a substantive standard). 174 Dreher, supra note 86, at Al, A6. 180 Garment, supra note 164, at A27. 178 De Witt, supra note 2, at A9. 181 Id. 178 Dreher, supra note 86, at A6. Pressler also wanted to 182 Id. know what disciplinary actions, if any, were taken against the "' Judy Mann, Keeping a Hand in Public Broadcasting, Boston station WGBH when its on-air personality and staff WASH. POST, Feb. 24, 1995, at E3. "cheered" 's presidential victory during its coverage. '8 Roth, Id. See infra, Part III.A.3.b. supra note 152, at Al. 17 Roth, supra note 152, at A8. 186 Duggan cites 'misconceptions', supra, note 89, at 3. 178 The FCC, in its publication Public Service Responsibil- 188 Kim McAvoy, Public broadcastersgo on offense, BROAD- ity of Broadcast Licensees, made licensing contingent upon com- CASTING & CABLE, Dec. 19, 1994, at 48. pliance with the "Fairness Doctrine," which required broadcast- 187 Coe, supra note 70, at A8; Feran, supra note 126, at El; ers to provide balanced programming. LASHLEY, supra note 15, Serving Elite Folks, supra note 162, at B6. at 18. 188 Serving Elite Folks, supra note 162, at B6. 179 47 U.S.C. §396(g)(1)(A). But see Accuracy in Media, 188 Coe, Supra note 70, at A8. Inc. v. FCC, 521 F.2d 288, 297 (D.C. Cir. 1975) (holding that eo Mann, supra note 183, at E3. 19951 PUBLIC BROADCASTING b. Defenders of Public Broadcasting Deny Charges B. Additional Arguments Asserted by Those Op- of Elitism posing Budget Cuts

To counter charges of elitism, advocates of public Federal funding provides necessary seed money. 9 8 broadcasting point to Nielsen studies that show that The local stations and independent producers who PBS's audience reflects the American population. 91 generate new programs for public broadcasting rely Public television brings cultural events such as the on federal seed money to attract other investors."' ballet and opera to many people who otherwise Each dollar from the federal government is used to could not afford them.' 92 Jane Krutz, representing leverage additional dollars in public support.2 00 A the Association of America's Public Television Sta- new children's program called Kratt's Creatures il- tions, stated before the January 19, 1995 House Ap- lustrates public broadcasting's use of federal funds as propriations Subcommittee hearing that the fact that seed money."0 1 The show is being developed by over four thousand adults are enrolled in the GED MPT, the fourth largest producer of programming program in Arkansas alone, and that over 1.5 mil- for PBS.20 2 MPT received $1.5 million from the lion adults obtained their high school diplomas government for the initial episodes.20 3 The $1.5 mil- through programs on public television, disposes of lion was used as leverage to raise another $5 million the idea that public broadcasting's viewership is from other sources to finance the show that cost $6.5 composed of only the elite. 93 The Nielsen study also million to make.0 " Sesame Street is another public shows that the majority of PBS viewers (sixty per- television program that started with seed money cent), earn less than $40,000 a year.' Further, from the CPB.205 Once a fledgling show dependent sixty-three percent of the approximately 100 million on government financing, Sesame Street has turned 95 PBS viewers have less than a college degree.1 into a $1 billion a year success and is now com- Some defenders of public broadcasting, such as pletely self-sufficient.20 6 Child, who has been hosting a cooking show Public Broadcasting is also cost effective. 0 7 Tax- on PBS for 25 years, rebuts charges of elitism by payer contributions equal only about one dollar per commenting that it is "a very elitist remark to think person per year.2 0 8 As PBS personality Bill Moyers that only rich, wealthy people can enjoy the opera, explains "[c]ompare that to the $300 to $500 that plays and culture."' 9' Judy Mann, a for the cable costs."' 9 In 1993, the $253 million that , asks if the millions of children CPB received from the Federal Government gener- who watch Sesame Street could be considered ated more that $1.5 billion in investment from mem- 7 elitist.' 9 bership contributions, matching grants and program

191 Feran, supra note 126, at 1E. 200 De Witt, supra note 2, at A9. PBS President Duggan 192 Mann, supra note 183, at E3. has likened the 14% federal subsidy of public broadcasting to 19. Statement of Jane Krutz, on behalf of the Association of "money that a farmer spends on his seed. If you destroy the America's Public Television Stations before the House Appro- seed, the rest of the planting can't be done." Easton and priations Subcommittee on Labor, Health and Human Services, Michaelson, supra note 4, at Al. and Education hearing on January 19, 1995, at 2 (on file with 201 David Zurawik, Sound, Fury Rise Over PBS Funding, CommLaw Conspectus). BALTIMORE SUN, Jan. 6, 1995, at Dl. 194 Bash, supra note 130, at Dl; Easton and Michaelson, 202 Id. supra note 4, at Al; Hodges, supra note 157, at 3. Compare, 203 Id. , Privatizing PBS is about money - for investors, 204 Id. HOUSTON POST, Feb. 8, 1995, at A19 (citing 56% as the per- 205 De Witt, supra note 2, at A9. centage of PBS viewers who make less than $40,000 per year). 206 Sesame Street no longer receives any federal funding. 190 Ivins, supra note 194, at A19. Easton and Michaelson, supra note 4, at A10. 199 Feran, supra note 126, at 1E. 207 Hodges, supra note 157, at 3; De Witt, supra note 2, at 197 Mann, supra note 183, at E3. 9. But see, Berger, supra note 81, at BI (noting that even de- 199 De Witt, supra note 2, at A9; Berger, supra note 81, at fenders of public broadcasting acknowledge the existence of B1. shortcomings of the present system). Robert MacNeil of the 9"i Easton and Michaelson, supra note 4, at Al. For exam- MacNeil-Lehrer Newshour, believes that too little money has ple, Puzzle Place, a PBS series that promotes racial harmony been spent on national programming and too much money spent and self-esteem among preschoolers, would not have been pro- on the operation of the 350 PBS stations, which overlap because duced without federal seed money. Id. CPB commissioned the one geographic area is served by more than one public broad- project with a $4.5 million grant to KCET, the producer of the casting station. Id. For example, the New York market is served program with Lancit Media. Id. William Kobin, president of by six public stations. Id. KCET, says "we wouldn't have been able to go to Southern 208 De Witt, supra note 2, at A9. California Edison for (another) $3.5 million." Id. 200 Hodges, supra note 157, at 3. COMMLAW CONSPECTUS [Vol. 3 sponsorships."1O Further, public broadcasting enjoys since the CPB funding became an issue.2 9 In fact, widespread public support.2" Polls conducted by APTS President David Bruger has appeared on four Opinion Research Corporation for PBS and a television news programs when normal press inquir- CNN/USA Today poll indicate that a majority of ies total only two or three per year, all as a result of those surveyed support the continued federal funding the debate over continuation of government subsidies of public television. 21 2 The PBS poll shows that 80% for public broadcasting. 2 of Republicans, 86% of independents, and 90% of It is also very interesting that House Speaker Democrats endorse continued federal subsidies of Gingrich chose his weekly television program on the public broadcasting." 8 National Empowerment Network, a conservative cable channel, to announce his intentions to "zero- out" government funding for the CPB.12 ' This may IV. THE RESULTS OF CONGRESS' be interpreted as evidence of his partnership with the THREAT TO SHUT-OUT FEDERAL FUND- cable industry to wipe out public broadcasting. In ING OF PUBLIC BROADCASTING addition, as Bill Moyers, a producer and commenta- tor for PBS, told television critics, it is also "intrigu- A. The Projected Budget Cuts of the CPB May Be ing that his [Gingrich's] second big attack on public a Mere Political Strategy broadcasting came in an interview with C-Span... which is a creature of the cable industry and is run '222 The federal subsidy of the CPB comprises of a by friends of the new speaker of the House. minuscule portion of the federal budget.2 " Federal funds apportioned for the CPB amounted to 0.0003% of the 1996 federal budget.2 15 The debate B. Negative Effects of Reduced or "Zero-ed Out" over the CPB funding may be an attempt by the Federal Funding Republicans to counter future criticism that the Re- publican Congress only cut programs for the poor in More than one thousand public radio and televi- its effort to balance the federal budget.216 The elimi- sion stations are in jeopardy if the reduction in fed- nation or reduction of federal monies for the CPB eral funding of public broadcasting is ultimately ap- could be hailed as an example of a program for the proved in Congress. 2 8 Top officials of public 217 rich which was also cut. broadcasting forecast that one station in ten could be 22 The battle over whether to continue federal fund- forced to cease operations. 4 Smaller, rural stations ing for the CPB simply may also be a way for the would be affected most,225 since rural stations do not 2 8 new congressional leaders to attract publicity. have the community resources at their disposal en- America's Public Television Stations, (APTS), an joyed by larger urban station, and depend heavily on organization which lobbies for PBS, received thirty federal stipends. 2 telephone calls from reporters in a two-day period Of the eighty-seven stations that receive twenty to

210 De Witt, supra note 2, at A9. point to CPB as an example of a program for the 'rich' that was 211 "Assisted Suicide," Not Reform, supra note 116, at 2; axed." Easton and Michaelson, supra note 4. See also, supra Easton and Michaelson, supra note 4, at AI0. Part III.A.3. 212 "Assisted Suicide," Not Reform, supra note 116, at 2. 212 Mendoza, supra note 132, at ENS; Easton and Michael- But see poll that showed a bipartisan 63% son, supra note 4, at Al. affirmative answer in favor of cutting public broadcasting "in 219 Mendoza, supra note 132, at EN5. order to reduce the federal deficit." Easton and Michaelson, 220 Id. supra note 4, at AI0. 221 Industry Reaction, supra note 3, at 3; De Witt, supra 212 "Assisted Suicide," Not Reform, supra note 116, at 2. note 2, at A9. Note, challenger of the poll point out that those participating in .22 Zurawik, supra note 201, at Dl. the poll were not asked to compare funding of public broadcast- 2" De Witt, supra note 2, at A9. ing against funding other programs like welfare. Id. "2 Senator urges public TV to draft privatization plan, 214 Easton and Michaclson, supra note 4, at Al. REUTER BUSINESS REPORT, Jan. 29, 1995. 212 Id. 225 "Assisted Suicide," Not Reform, supra note 116, at 2; see 216 See Political Overtones Seen, supra note 82, at 2; Easton Not as Bad as Feared, supra note 4, 225, at 2; Garment, supra and Michaelson, supra note 4. note 164, at A27. 217 Political Overtones Seen, supra note 82, at 2. Reporters "' Easton and Michaelson, supra note 4, at A9 ; Not as Bad Nina J. Easton and Judith Michaelson say that Democratic as Feared, supra note 4, 225, at 2. But cf. Even Large Public lawmakers think that the Republican attack on public broadcast- TV Stations Can't Survive Proposed Cuts, N.Y. TIMES, Feb. 1, ing is "a calculated political strategy: [w]hen budget-cutters 1995, at A20. William F. Baker, President of Channel Thirteen come under attack for trimming programs for the poor, they can (WNET) in New York, stated "without [F]ederal financing, 1995] PUBLIC BROADCASTING fifty percent of their annual budgets from the CPB, would go off the air without federal monies.23 6 about half of the stations could go off the air imme- These programs include courses offered via distance diately.2 This would create a "domino effect." 22 learning for college or high school credit, teaching The shutdown of the eighty-seven stations would re- services for thirty million students, noncommercial sult in higher national programming fees for the re- programming for off-air taping and use, maining stations, since the smaller stations would training and development programs for teachers, not be in existence to pay their portion of the NPS computer linked on-line educational networks, and 2 2 9 fees. courses to prepare for high school equivalency exam- For example, experts speculate that KCTF of inations.237 For example, Coastline Community Col- Waco, Texas, which receives thirty-nine percent230 lege, (CCC), which broadcasts college courses on of its total operating budget from the CPB, would be KOCE-TV, serving Orange County, California, one of the first public television stations to go off the may have to reduce class offerings if federal cuts re- 38 air."' Due to the loss of fees from stations such as duce KOCE-TV's funding. CCC's President Les- KCTF, mid-range stations like WSBE-TV in Provi- lie Purdy, who has made Coastline one of the na- dence, Rhode Island, which gets ten percent of its tion's leading telecourse institutions, said that a decrease in government funding would be like budget from the CPB, would be in the round of ' "someone taking away a classroom "239 shut-downs because it would not be able to afford site. the rising national programming fees.282 In addition, the end of federal funding would also C. A Reduction in Federal Funding Now May Be 3 create a Catch-22 situation. ' The larger stations an Indicator of Total Elimination of Federal Fund- that produce programs would halt production in or- 23 4 ing for the CPB in the Future der to afford the rising NPS programming fees. But, a Catch-22 situation arises because the result Although the recent approval of decreases in ap- would be no NPS programming, since the larger sta- propriations for public broadcasting by the House tions that produce programs had to halt production Appropriations Subcommittee on Labor, Health and so that they could afford the rising NPS program- Human Services, and Education was only the first ming fees.23 step of many in a lengthy process, the subcommit- Twenty-four national educational organizations tee's action indicates general support for House that support government financing of public broad- Speaker Gingrich's plan to end federal subsidies for casting advised that several educational programs public broadcasting.2"" Federal funding of public

Channel 13 will have to change its nature forever." Id. Channel tional services would be destroyed first, with the rippling effect 13's community service grant from CPB supports only Channel that would eventually wipe out PBS's National Programming 13 as a public television station, amounting to 15% of the sta- Service, on which the public television system depends on for tion's budget. Id. CPB funds do not aid Channel 13's program most of its programming. Id. production center, which produces about one-third of all the pro- 235 Id. grams enjoyed by public television viewers. Id. The loss of fed- 22I COMM. DAILY, February 23, 1995, at 9. A letter signed eral funding cannot be diverted from Channel 13's program pro- by 24 educational organizations supporting continued federal duction center to support the public television station because funding for CPB was distributed to members of Congress on funds granted to support the production of a program are project February 22, 1995. Id. The American Federation of School Ad- specific. Id. Therefore, if Channel 13 loses its community service ministrators, Center for Media Education, National Association grant, Channel 13 as a local public television station will cease of Elementary School Principals, National Association of School to exist as locals viewers knew it. Id. The 5.6 million viewers of Psychologists, National Black Child Development Institute, Na- Channel 13 will end up with a diminished Channel 13. Id. tional Education Association, and the National School Boards 227 "Domino Effect" Feared, supra note 3, at 2. Association were among the signatories of the letter. Id. 228 Id. 237 Id. 229 Id. CPB Chairman Henry Cauthen estimates one-third 228 Nguyen, supra note 169, at BI. Carolann Young, a 36- of public television stations would go under. Easton and year old mother and homemaker, would be unable to finish her Michaelson, supra note 4, at AI0. pursuit of a teaching certificate because telecourses are the only 220 "Domino Effect" Feared, supra note 3, at 2. The Associ- way Young can earn her degree. Id. Telecourses are a trend ation of America's Public Television Stations cite WCTF's fund- among adults who cannot afford to be on college campuses. Id. ing from CPB as 54%. See Krutz, supra note 193, at 3. 229 Id. 231 "Domino Effect" Feared, supra note 3, at 2. 240 Larson, supra note 96, at Al. But see, Not as Bad as 232 Id. Feared, supra note 4, 225, at 2. The fact that the plan approved 223 Id. by the House Appropriations Subcommittee on Labor, Health 284 Id. See also Not as Bad as Feared,supra note 4, 225, at and Human Services, and Education did not eliminate federal 3. If the rescissions were adopted, public broadcasting's educa- funding for CPB gives hope for the 1998 budget. Id. COMMLAW CONSPECTUS [Vol 3 broadcasting will be difficult to justify in today's eco- public broadcasting's Sesame Street versus the com- nomic climate. There will be no exception for public mercial alternative, the Power Rangers. Therefore, a broadcasting when Congress is also considering shut down of public broadcasting will mean a great budget cuts for programs to combat homelessness, decline in educational programming. In addition, prevent drug and alcohol abuse, and programs for more than one million children in Georgia, as well 24 senior citizens. ' as the millions of others across rural America, will no longer be able to attend school via public television. 4 2 D. The Bottom Line Further, public television still serves a vital public Although the issue is an explosive one, there are service by providing quality programming to the persuasive arguments on both sides of the debate on most remote areas of the United States. While PBS whether federal funding for the CPB should be re- covers almost one hundred percent of the country, duced, 'zero-ed out,' or left alone. Today, there is ac- cable reaches only about sixty-six percent of house- 243 cess to over 500 cable channels in addition to on-line holds. Thus, a fair conclusion is that there is still computer networks of information, as well as other a need for public broadcasting in the areas of educa- advances in technology that many argue have re- tional programming and providing access to remote duced the need for public broadcasting. Many of the areas. services traditionally provided by public television are now also provided by commercial sources. Cul- V. CONCLUSION tural and educational cable channels such as Arts & Entertainment, the Discovery Channel, the Learning The examination of the debate between the advo- Channel, and Bravo give viewers more documenta- cates of federal funding cuts and those opposed to ries, news analyses, and other educational and cul- budget cuts, demonstrates that federal funding for tural programming. Private entities such as the the Corporation for Public Broadcasting is still Jones Education Networks, a subsidiary of a cable needed to guarantee continued funding for educa- company, provides educational programming via dis- tional public broadcast programming and to provide tance learning. Further, and perhaps most influen- broadcast service to remote areas. The logical source tial, is the fact that the federal government faces a for public broadcast funding is the federal govern- huge budget deficit. Politicians are struggling to find ment since public broadcasting's original purpose ways to cut the deficit, and to balance the federal was to provide noncommercial educational, radio and budget. television services to all citizens of the United States. On the other hand, there is still a void left by the Therefore, until the void left by the commercial sta- commercial stations and the cable industry. Com- tions and the cable industry with respect to providing mercial stations and cable channels, for all of their quality educational programming and providing programming variety, lack quality educational and broadcast service to the most remote areas have been cultural programming. Left only to market forces, filled, the federal government should continue fund- the choice for children's programming is between ing the Corporation for Public Broadcasting.

241 Frederic M. Biddle, WGBH; Public TV says federal ... Spare Public Broadcasting, supra note 163, at 8. budget ax imperils popular shows, BOSTON GLOBE, Dec. 21, 248 Hodges, supra note 157, at 3. 1994, at 89.