Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 ) In the Matter of ) ) MB Docket No. 04-233 Broadcast Localism ) ) REPLY COMMENTS OF THE NATIONAL ASSOCIATION OF BROADCASTERS NATIONAL ASSOCIATION OF BROADCASTERS 1771 N Street, NW Washington, DC 20036 (202) 429-5430 Marsha J. MacBride Jane E. Mago Jerianne Timmerman Larry A. Walke Erin L. Dozier Scott A. Goodwin NAB Legal Interns Tyler Baker Maria Kaminska Erin McLauthlin June 11, 2008 Executive Summary The National Association of Broadcasters (“NAB”) hereby submits its reply comments in response to the Commission’s Report on Broadcast Localism and Notice of Proposed Rulemaking (“Notice”). As NAB stated in its initial comments, and as thousands of commenters, both broadcasters and third parties, have now shown, radio and television broadcasters are closely connected with their local communities and provide a wealth of community-responsive programming. The record in this proceeding demonstrates that local stations acknowledge and embrace their obligation to serve the public interest every day. Local broadcasters offer valuable local and national news, political, public affairs and other informational programming, vital emergency information and entertainment to viewers and listeners free of charge. They also provide additional, unique community service, including giving a voice to local organizations and raising monies for charities, local groups and causes and needy individuals. Broadcasters actively participate in their local communities – they work hard to understand the needs and interests of their audiences and to provide programming every day to address those needs. Moreover, as demonstrated by commenters in this proceeding, serving the needs of local communities is the cornerstone of the broadcasting business. Without local programming and services to differentiate their offerings from a myriad of competitors, broadcasters will lose viewers and listeners and thus the advertisers that are vital to their business. The record contains no evidence that responsive programming and other services are not widely available to viewers and listeners on a market basis. i Certainly the general, empirically unsupported assertions of small numbers of media critics that local stations should do “more” – especially offer more programming of the specific type preferred by these critics of all commercial media – cannot justify the imposition of new and intrusive regulation in the name of localism. As an initial matter, the record demonstrates that, despite the Commission’s elimination of its non- entertainment programming requirements in the 1980s, there has not been a decline – in fact there has been an increase – in the amounts of non-entertainment programming, especially local news, aired by television stations and available to consumers on a market basis. Moreover, consumers evidently do not believe that their local radio and television stations are failing to serve their needs. As NAB shows in these replies, during the last two license renewal cycles, petitions to deny or informal objections were filed against only approximately 0.9% of all renewal applications, indicating that 99.1% of all licensees were serving their communities so well that their license renewal applications were unopposed. The Commission cannot disregard this concrete, numerical evidence as to viewer and listener satisfaction with their local broadcast stations, and adopt intrusive regulation on the alleged (but unproven) existence of a small number of underperforming stations. The record clearly does not provide any factual or legal basis to turn back the clock to reinstate regulations that the Commission found ineffective and unnecessary in the less competitive media marketplace of the 1980s. Today, with the media market changing dramatically and competition from multiple digital sources growing continuously, there is no reason to maintain the current level of regulation on broadcasters, let alone increase regulation on an industry that remains the most heavily- ii regulated in the media market. While NAB and other commenters agree that local community service is an important part of their public service obligations, the reimposition of burdensome and outdated restrictions is not needed to enhance local public service. In fact, numerous commenters explain that certain proposals in the Notice would impair broadcasters’ abilities to serve their local communities by imposing significant costs and diverting limited resources away from programming and services that directly serve their local markets. Reversing course and reimposing more restrictive rules regarding main studio location and unattended operation, for instance, would burden many broadcasters with substantial, possibly financially devastating, new costs. Commenters stress that small- and mid-sized broadcasters and those in rural areas would be particularly adversely affected in their ability to serve their local communities. An inflexible, one-size-fits-all federal mandate also fails to consider the vast differences between the communities that broadcasters serve. What may be appropriate programming for a television station in a top-ten Designated Market Area (“DMA”) may likely not be appropriate for a television station in DMA #100, let alone a radio station in an unrated rural area. Given these differences, commenters virtually unanimously oppose the proposal to require all broadcast stations in the country to form community advisory boards for the purpose of ascertaining the needs and interests of their communities. Commenters point out the numerous practical problems with such an inflexible approach, especially because broadcasters today already employ a wide variety of proven and effective methods to ascertain the specific needs and interests of their audiences. Initial comments filed by hundreds of broadcasters demonstrated the range of voluntary ascertainment activities currently undertaken, and reflect the need for iii such ascertainment methods to be tailored to the mission of the station. For example, successful and cost effective ascertainment methods will likely differ greatly between a radio station with an all-news format and one that plays country music. Moreover, commenters virtually unanimously agree that the legal basis for several of the proposals in the Notice appears questionable at best. The D.C. Circuit Court of Appeals has found that the Commission lacks statutory authority to adopt regulations affecting program content without express congressional directive, and any such regulation of the content aired on broadcast stations raises serious First Amendment concerns. These concerns are only magnified by proposals that would apply to all radio and television stations in the country, regardless of the level of service being provided by an individual station and regardless of the level of service available to consumers across their local markets as a whole. Many commenters, for example, explained that proposed content-based license renewal processing “guidelines,” which were eliminated as unnecessary, ineffective and constitutionally suspect in the 1980s, would operate as de facto programming quotas that would infringe upon broadcasters’ editorial discretion and interfere with the rights of viewers and listeners. Basing radio stations’ license renewals, at least in part, on mandatorily-supplied data about their compilation of playlists and their airing of particular content raises similar legal and constitutional concerns. The record in this proceeding establishes that, instead of achieving the Commission’s stated goal of promoting connections between broadcasters and their communities, the proposed rule changes will often produce the contrary effect, resulting in a broadcasting industry less able to serve the public interest. Especially in light of broadcasters’ and other outlets’ increasing service to local markets made possible by iv technological developments, NAB urges the Commission not to return to a regulatory regime from the analog era that would harm rather than help promote our common goal of providing service to local viewers and listeners. v Table of Contents EXECUTIVE SUMMARY ................................................................................................................................. i I. THE RECORD OVERWHELMINGLY DEMONSTRATES LOCAL BROADCAST STATIONS’ SERVICE TO THEIR COMMUNITIES ................................................................................................... 6 A. RADIO AND TELEVISION STATIONS AIR SIGNIFICANT AMOUNTS OF LOCALLY RESPONSIVE PROGRAMMING.............................................................................................................................. 7 i. Local Stations Offer an Array of News and Other Locally Oriented Informational Programming ........... 7 ii. Local Stations Air Significant Amounts of Local Political and Public Affairs Programming .................. 12 iii. Local Stations Provide Locally-Oriented Sports and Entertainment Programming .............................. 15 iv. Local Stations Provide Programming Targeted to Underserved Audiences ........................................ 17 v. Many Stations Utilize On-Air Programming to Raise Significant Funds for Local Community Organizations....................................................................................................................................... 19 B. BROADCASTERS PROVIDE EXTENSIVE AND UNIQUE ADDITIONAL PUBLIC SERVICE TO THEIR LOCAL COMMUNITIES