THE IMPACT OF UHF PROMOTION: THE ALL-CHANNEL TELEVISION RECEIVER LAW DouGLAS W. WEBBINK* INTRODUCTION The All-Channel Television Receiver Law1 was passed by Congress in the spring of 1962 at the request of the Federal Communications Commission and was signed into law by President Kennedy on July io,1962. This law gave the Federal Communications Commission the authority to require that all television receivers sold to the public should be capable of receiving all frequencies allocated for tele- vision use.' On November 21, 1962, using the authority given it by this law, the Federal Communications Commission ruled that after April 3o, 1964, "all TV receivers shipped in interstate commerce [must] be able to adequately receive UHF as well as VHF channels."3 As a consequence, the All-Channel Television Receiver Law required that after April 1964 all new television receivers would be all- channel receivers, and it made illegal the sale of new television receivers capable of receiving only very-high frequencies. Although this law has been in existence for eight years, almost no one has questioned the basic assumption that this law was "in the public interest." The purposes or goals of this law may be inferred by studying the hearings4 and the reports5 of the Congressional committees which held hearings on the law. There appear to have been several separate but related reasons given for the passage of the law. The law was expected to increase the number of new ultra-high frequency commercial and noncommercial television stations going on the air. The law could also be described as a piece of special-interest legislation whose pur- pose was to help existing ultra-high frequency stations which were making relatively small profits or outright losses. In addition, the law was expected to increase the number and diversity of program choices, and to make noncommercial (educational) *A.B. 1964, Brown University; Ph.D. 1968, Duke University. Assistant Professor of Economics, University of North Carolina at Chapel Hill. This study is based in large part on D. Webbink, The All-Channel Television Receiver Law and the Future of Ultra-High Frequency Television (unpublished Ph.D. dissertation, Duke University, 1968). S47 U.S.C. § 303(s) (1964). SId. 'FCC Public Notice 28141 (Nov. 21, x962). 'Hearings on All Channel Television Receivers and Deintermixture Before the House Comm. on Interstate and Foreign Commerce, 87th Cong., 2d Sess. (1962) [hereinafter cited as 1962 House Hearings]; Hearings on All-Channel Television Receivers Before the Subcomm. on Communications of the Senate Comm. on Commerce, 87th Cong., 2d Sess. (1962) [hereinafter cited as z962 Senate Hearings]. 5 HousE CoMM. oN INTERSTATE AND FoREIGN COMMnaERCE, ALL-CHANNEL TELEVISION RECEIVEs, H.R. REP. No. 1559, 87 Cong., 2d Sess. (1962); SENATE CO-M. ON COMMERCE, ALL-CHANNEL TELEVISION RECEIVERS, S. REP. No. 1526, 87 th Cong., 2d Sess. (x962). 536 LAw AND CONTEMPORARY PROBLEMS television programs available to more viewers, thereby increasing the number of persons who watched those programs. Finally, the law was supposed to encourage the development of more programs specifically designed for local markets, such as local news, political, religious, and sports programs. Clearly, the goals or purposes of the law are all highly interrelated; nevertheless, they need to be considered separately because the law did not have an equal impact with respect to all of these goals. For example, it is possible that the law might have had a large effect with respect to those goals involving subsidization of UHF tele- vision stations without having any significant effect on those goals involving an in- crease in the quantity and diversity of television programs available to viewers. I HIsToRY OF ULTRA-HIGH FREQUENCY TELEVIsION A. Early History In order to understand the All-Channel Television Receiver Law (All-Channel Law), it is necessary to review the history of ultra-high frequency television. The Communications Act of 19346 established the Federal Communications Commission (FCC) to replace the Federal Radio Commission.7 The Act of 1934 gave the FCC the authority to issue licenses to all nonmilitary broadcasting stations in the United States, thereby prohibiting any station from operating without a license. The FCC was also given the authority to assign to stations particular locations, frequencies, and call letters. It could specify their output power, antenna height, and hours of operation 8 Commercial television regulation actually began with the issuance of the first commercial television station license by the FCC in 1940. At first, television stations simply applied to the FCC for a license to operate in whatever community and on whatever channel they chose. In 1945, however, the FCC issued its first television allocation table, which determined a priori how many channels and which ones would be available in each city. A total of 405 assignments were made in the 140 largest metropolitan population centers, with seven each in New York, Chicago, and Los Angeles. This assignment plan was based on thirteen channels, for at that time the FCC had made only very-high frequency Channels i to 13 available for television.' 6 0 47 U.S.C. § 151 (1964)- 7 See generally W. EMRY, BROADCASTING AND GOVERNMENT: RESPONSIBILITIES AND REGULATIONS 19-24 (g6i); J.M. EDELMAN, THE LICENSING OF RADIO SERVICES IN THE UNITED STATES, 1927 TO 1947: A STuDy IN ADMINISTRATIVE FORMULATION OF POLICY 5-7 (ig5o). 8 47 U.S.C. §§ 303(c), (d), (e), (o) (1964). See also EMERY, supra note 7, at 32-33. 9 AD Hoc ADVISORY Comm. oN ALLOCATIONS OF THE SENATE COMM. ON COMMERCE, 85TH CoNO., 2D SESs., REPORT ON ALLOCATION OF TV CHANNELS 19 (Comm. Print 1958) [hereinafter cited as ALLOCATION OF TV CHANNELS]. " ld. at x9. Tim AxT-CHu,,E TELEvISION REcEIVER LA-w The decision of the FCC to issue an allocation plan was to have a profound effect on the future development of the television industry. The FCC had decided to replace free market choice by regulatory control over entry in the television industry. Instead of merely issuing licenses for stations in cities where there was a definite demand for stations (as evidenced by the willingness of businessmen to spend the money necessary to build the stations), the FCC decided to determine in advance where stations could be built, thus limiting businessmen to building stations in the cities that the FCC had chosen.11 In 1948 the FCC planned to extend its earlier allocation plan by making alloca- tions available in a total of 340 cities. In the meantime it had assigned Channel i to fixed and mobile radio services, so that only twelve channels were available for television use.12 It became apparent, however, that there were significant problems of interference between television stations which were operating in different places but on the same or adjacent frequencies. As a result, on September 3o, 1948, the FCC announced a "freeze" policy,:" which meant that no new permits to construct tele- vision stations would be issued until after the question of interference and minimum spacing between stations had been studied. The thirty-seven stations already on the air were allowed to continue broadcasting, and the eighty-six stations which had already been issued construction permits were allowed to go ahead with their plans to construct stations and go on the air.14 Originally the FCC had expected the freeze to last only a few months. Con- temporaneously, however, it also became involved in the question of what kind of color television system the industry should have in the future.' 5 Because the FCC held protracted hearings on color television and television interference problems, three and one-half years passed before it lifted the freeze. Finally, on April 14, 1952, the FCC issued its Sixth Report and Order which ended the freeze on applications 16 for construction permits. At the time the Sixth Report and Order was issued, there were io8 commercial very-high frequency stations on the air.'7 It is certain there would have been con- siderably more stations on the air by 1952 if the FCC had not limited entry between 1948 and 1952. "1Although it was still possible for a station to get a license to operate in a city which did not originally have an unused channel, this could only be accomplished through a change in the table of allocations. Because such changes require administrative hearings, they are rarely made. See id. at 1g. 12 EMERY, su ra note 7, at 14. "5 Amendment of Section 1.371 of the Commission's Rules and Regulations, Nos. 8736 & 8975, 13 Fed. Reg. 586o (F.C.C., released Sept 30, 1948). "ALnocArsoN oF TV CHA-NELs, supra note 9, at ig-2i. 6 " 1d. at 2o. 1L Amendment of Section 3.606 of the Commission's Rules and Regulations; Amendment of the Commission's Rules, Regulations and Engineering Standards Concerning the Television Broadcast Service; Utilization of Frequencies in the Band 470 to 890 Mcs for Television Broadcasting (Sixth Report and Order), Nos. 8736, 8795, 9175, & 8796, 17 Fed. Reg. 3905 (F.C.C., filed May i, 1952) [hereinafter cited as Sixth Report and Order]. " ALLOCATION oF TV CHANNELs, supra note 9, at 21. LAw AND CONTEMPORARY PROBLEMS B. The Sixth Report and Order The Sixth Report and Order provided a new allocation plan which made a total of eighty-two channels available, of which twelve were the old very-high-frequency (VHF) channels 2-13, and seventy were on the new ultra-high-frequency (UHF) television band as channels I4-8338 Table i shows the over-all allocation plan of the Sixth Report and Order. Significantly, over two-thirds of the commercial sta- tion allocations were made on UHF channels.