I concur in the publication of the proposed rule for the purpose of securing comment on, facts relating to, and public discussion of, the proposal and the problem to which it relates. However, I deem the matter of sufficient importance to justify a separate statement of my own views which are not completely identical with those of my colleagues. It seems to me that the public interest in the field of broadcasting is best served by a system in which government control of, or influence over, the program content is at an absolute minimum, and the programs broadcast are determined by the desires primarily of the public and secondarily of the licensee. This requires that there be a diversity of program sources for the right of choice to be effective. With a diversity of program sources and a free choice among them available to the public, I am not concerned, and I do not believe that this Commission should be concerned, whether program production is financed by advertisers, by licensees or by independent production companies. In those circumstances I am not concerned, and I do not believe that this Commission should be concerned, whether the programs meet my own standards of taste and quality. This, of course, has nothing to do with the Commission's right to prohibit legally objectionable programs. See Loevinger, The Role of Law in Broadcasting, 8 Journal of Broadcasting 113 (1964). The inferences to be drawn from the Commission's prior hearings and investigations into the matter of program sources suggest that the diversity of sources which a system of free broadcasting rests upon, has been restricted in recent years. The facts referred to in the Commission's Notice, and to be found in the records before the Commission, indicate that formerly there were a significant number of independent program production companies offering products to networks, to advertisers, and to television stations. By the end of the 1950's the networks had either acquired substantial proprietary interests in the great bulk of network shows or selected the great bulk of network shows from those in which they had proprietary interests. Regardless of how this came about, the result was that the market for independent program production was very substantially constricted, and that most of the independent program producers were reduced to the status of satellites of the networks. This situation seems to me to present an issue that deserves public consideration and discussion. This is what is sought by the Notice of Proposed Rulemaking. In voting for the Notice of Proposed Rulemaking I do not indicate any fixed conclusion as to what the facts are, as to whether the facts present a problem requiring Commission action, or as to what action is appropriate if there is a serious problem. I would welcome representations and discussion on all of these aspects of the matter. In particular, questions which seem to me to merit the most widespread public consideration and discussion are these: (1) Is it desirable for the great preponderance of television shows available to the public to be produced, owned or controlled by three network corporations? (2) Are there independent production companies able and willing to produce programs of network quality without network assistance or participation if there is a market for such programs? (3) If there are such persons or enterprises, would it be desirable to separate the production of television programs from the control of exhibition altogether under the rule of United States v. Paramount Pictures, 334 US 131? If not, why not? (4) If the complete separation of production and exhibition is not deemed appropriate, is the proposed rule attached to the Commission Notice the best approach to the problem? (5) Would adoption of a rule prohibiting network syndication and acquisition of proprietary rights other than exhibition rights in programs produced by others suffice to promote diversity of program sources? (6) If the proposed rule, or some similar rule, is deemed desirable, should its application be limited to networks serving more than some specified number (such as 50) affiliated stations, in order to offer encouragement to the development of new networks? (7) Is the principle of licensee responsibility consistent with network control, and is network control consistent with independent production? If these principles or objectives are not wholly consistent, which should the FCC prefer or emphasize? (8) If the proposed rule, or some similar rule, is deemed substantively desirable, is the jurisdictional basis of the proposed rule legally sound? If not, is there any legally sound jurisdictional basis for FCC promulgation of a substantive limitation of this kind under present statutes? (9) If the Commission concludes that some action is appropriate to encourage a greater diversity of program sources, is there any course of action which would be more effective than, or otherwise preferable to, the proposed rule? In voting for the Notice and the publication of the proposed rule I indicate no more than that I consider the foregoing questions to be relevant and material to the Commission's function and to be worthy of investigation and widespread discussion. I think it preferable that these questions be frankly confronted and openly discussed, rather than avoided or covertly or privately considered. I hope that the Commission will receive specific and useful answers to these difficult questions. (The text of the Television Code, National Association of Broadcasters, Thirteenth Edition, August 1968 follows:) Preamble T ELEVISION is seen and heard in every type of American home. These homes include children and adults of all ages, embrace all races and all varieties of religious faith, and reach those of every educational background. It is the responsibility of television to bear constantly in mind that the audience is primarily a home audience, and consequently that television's relationship to the viewers is that between guest and host. The revenues from advertising support the free, competitive American system of telecasting, and make available to the eyes and ears of the American people the finest programs of information, education, culture and entertainment. By law the television broadcaster is responsible for the programming of his station. He, however, is obligated to bring his positive responsibility for excellence and good taste in programming to bear upon all who have a hand in the production of programs, including networks, sponsors, producers of film and of live programs, advertising agencies, and talent agencies. The American businesses which utilize television for conveying their advertising messages to the home by pictures with sound, seen free-of-charge on the home screen, are reminded that their responsibilities are not limited to the sale of goods and the creation of a favorable attitude toward the sponsor by the presentation of entertainment. They include, as well, responsibility for utilizing television to bring the best programs, regardless of kind, into American homes. Television and all who participate in it are jointly accountable to the American public for respect for the special needs of children, for community responsibility, for the advancement of education and culture, for the acceptability of the program materials chosen, for decency and decorum in production, and for propriety in advertising. This responsibility cannot be discharged by any given group of programs, but can be discharged only through the highest standards of respect for the American home, applied to every moment of every program presented by television. In order that television programming may best serve the public interest, viewers should be encouraged to make their criticisms and positive suggestions known to the television broadcasters. Parents in particular should be urged to see to it that out of the richness of television fare, the best programs are brought to the attention of their children. I. Advancement of Education and Culture 1. Commercial television provides a valuable means of augmenting the educational and cultural influence of schools, institutions of higher learning, the home, the church, museums, foundations, and other institutions devoted to education and culture. 2. It is the responsibility of a television broadcaster to call upon such institutions for counsel and cooperation and to work with them on the best methods of presenting educational and cultural materials by television. It is further the responsibility of stations, networks, advertising agencies and sponsors consciously to seek opportunities for introducing into telecasts factual materials which will aid in the enlightenment of the American public. 3. Education via television may be taken to mean that process by which the individual is brought toward informed adjustment to his society. Television is also responsible for the presentation of overtly instructional and cultural programs, scheduled so as to reach the viewers who are naturally drawn to such programs, and produced so as to attract the largest possible audience. 4. The television broadcaster should be thoroughly conversant with the educational and cultural needs and desires of the community served. 5. He should affirmatively seek out responsible and accountable educational and cultural institutions of the community with a view toward providing opportunities for the instruction and enlightenment of the viewers. 6. He should provide for reasonable experimentation in the development of programs specifically directed to the advancement of the community's culture and education. 7. It is in the interest of television as a vital medium to encourage and promote the broadcast of programs presenting genuine artistic or literary material, valid moral and social issues, significant controversial and challenging concepts and other subject matter involving adult themes. Accordingly, none of the provisions of this Code, including those relating to the responsibility toward children, should be construed to prevent or impede their broadcast. All such programs, however, should be broadcast with due regard to the composition of the audience. The highest degree of care should be exercised to preserve the integrity of such programs and to ensure that the selection of themes, their treatment and presentation are made in good faith upon the basis of true instructional and entertainment values, and not for the purposes of sensationalism, to shock or exploit the audience or to appeal to prurient interests or morbid curiosity. II. Responsibility Toward Children 1. The education of children involves giving them a sense of the world at large. It is not enough that only those programs which are intended for viewing by children shall be suitable to the young and immature. In addition, those programs which might be reasonably expected to hold the attention of children and which are broadcast during times of the day when children may be normally expected to constitute a substantial part of the audience should be presented with due regard for their effect on children. 2. Such subjects as violence and sex shall be presented without undue emphasis and only as required by plot development or character delineation. Crime should not be presented as attractive or as a solution to human problems, and the inevitable retribution should be made clear. 3. The broadcaster should afford opportunities for cultural growth as well as for wholesome entertainment. 4. He should develop programs to foster and promote the commonly accepted moral, social and ethical ideals characteristic of American life. 5. Programs should reflect respect for parents, for honorable behavior, and for the constituted authorities of the American community. 6. Exceptional care should be exercised with reference to kidnapping or threats of kidnapping of children in order to avoid terrorizing them. 7. Material which is excessively violent or would create morbid suspense, or other undesirable reactions in children, should be avoided. 8. Particular restraint and care in crime or mystery episodes involving children or minors should be exercised. |