[Federal Register: July 30, 2004 (Volume 69, Number 146)]
[Proposed Rules]
[Page 45665-45668]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jy04-44]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 04-232; FCC 04-145]
Retention by Broadcasters of Program Recordings
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this document, the Commission proposes to require that
television and radio stations retain program recordings for a period of
time for purposes of enforcing the statutory prohibition against
obscene, indecent, or profane broadcast programming, among other
reasons.
DATES: Comments due on or before August 27, 2004; reply comments are
due on or before September 27, 2004.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554. For further filing information, see SUPPLEMENTARY
INFORMATION.
FOR FURTHER INFORMATION CONTACT: Ben Golant, 202-418-7111 or
Ben.Golant@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Notice of Proposed
Rulemaking, FCC 04-145, adopted June 21, 2004 and released July 7,
2004. The full text of the Commission's NPRM is available for
inspection and copying during normal business hours in the FCC
Reference Center (Room CY-A257) at its headquarters, 445 12th Street,
SW., Washington, DC 20554, or may be purchased from the Commission's
copy contractor, Qualex International, (202) 863-2893, Portals II, Room
CY-B402, 445 12th St., SW., Washington, DC 20554, or may be reviewed
via Internet at http://www.fcc.gov/mb.
Synopsis of the Further Notice of Proposed Rulemaking
1. In this Notice of Proposed Rulemaking (``NPRM''), we propose to
require that broadcasters retain recordings of their programming for
some limited period of time (e.g., 60 or 90 days) in order to increase
the effectiveness of the Commission's process for enforcing
restrictions on obscene, indecent, and profane broadcast programming.
2. It is a violation of federal law to broadcast obscene, indecent,
or profane programming. Specifically, Title 18 of the United States
Code, Section 1464, prohibits the utterance of ``any obscene, indecent,
or profane language by means of radio communication.'' Congress has
given the Federal Communications Commission the responsibility for
administratively enforcing 18 U.S.C. 1464. In doing so, the Commission
may, for example, revoke (or decline to renew) a station license or
impose a monetary forfeiture for the broadcast of such prohibited
material.
3. The Commission's enforcement policy under Section 1464 has been
shaped by a number of judicial and legislative decisions. In
particular, because the Supreme Court has determined that obscene
speech is not entitled to First Amendment protection, obscene speech
cannot be broadcast at any time. Indecent speech is protected by the
First Amendment and cannot be outlawed completely, but, pursuant to
Commission regulations, implementing a subsequent statute and court
decision, the airing of such programming is restricted to the hours of
10 p.m. to 6 a.m., when children are less likely to be in the audience.
The courts have consistently upheld the Commission's authority to
regulate indecent speech, albeit with certain limitations. In this
NPRM, we seek comment on enhancing our enforcement processes through
proposed program recording retention requirements for broadcast
stations in order to improve the adjudication of complaints.
4. The Commission's current procedures for the filing and
consideration of complaints were articulated in its Indecency
Guidelines Policy Statement. The Commission does not independently
monitor broadcasts for obscene, indecent, or profane material. Its
enforcement actions are based on documented complaints received from
the public. Given the sensitive nature of these cases and the critical
role of context in a determination, it is important that the Commission
be afforded as full a record as possible to evaluate allegations of
objectionable programming. In order for a complaint to be considered,
our practice is that it must generally include: (1) A significant
excerpt from the program or a full or partial tape or transcript of the
program; (2) the date and time of the broadcast; and (3) the
[[Page 45666]]
call sign of the station involved. Although a complainant is not
required to provide a tape or transcript, he or she must provide
sufficient information regarding the content at issue to place it in
context. The amount of information provided need not be extensive.
5. The staff reviews each complaint to determine whether the
relevant material may violate the obscenity, indecency or profanity
standards and, in the case of indecency and profanity, whether the
material was broadcast outside the safe harbor hours. If there is
sufficient information in the complaint that the facts, if true,
suggest a violation may have occurred, the staff will commence an
investigation by issuing a letter of inquiry (``LOI'') that, among
other things, requires the licensee to produce a recording or
transcript of the program, if it has one. Otherwise, the complaint is
generally dismissed or denied. If, based on the complaint, the
licensee's response to the LOI and other facts in the record, it
appears that a violation has occurred, the staff or the Commission will
take enforcement action, such as issuing a Notice of Apparent Liability
(``NAL'') proposing a forfeiture or potentially an order to show cause
to revoke the station's license.
6. We seek comment on steps the Commission could take to improve
our complaint process and better enforce our existing standards by
requiring broadcasters to retain recordings of their broadcast for a
limited period of time. Because the specifics and context of the
broadcast are critical to the determination of whether material is
obscene, indecent, or profane, the more information the Commission can
have in its possession about a program when it concludes an
investigation and decides whether or not to initiate an enforcement
proceeding, the more informed a decision it can make. Many complainants
are able to provide enough detail for us to determine that enforcement
action is warranted, even if the licensee has no transcript or
recording of the program to provide in response to an LOI. In other
cases, however, the Commission may lack a sufficient record where the
licensee is unable to provide a tape or transcript in response to an
LOI.
7. Accordingly, we propose to improve our indecency complaint
process by requiring broadcasters to retain a recording of all material
they air during the hours of 6 a.m. and 10 p.m., when children are
likely to be in the audience, for a limited period of time. This
approach would ensure that the Commission has a complete record before
it in deciding whether to initiate enforcement proceedings after an
investigation. We seek comment on this proposal, including the proper
length of time a copy of programming should be retained by a licensee,
such as 60 or 90 days. Our goal is to establish a retention period that
is long enough to ensure that the recording will be available in
response to an LOI, but not so long that it imposes unreasonable
burdens. We also seek comment on whether the proposed record retention
requirements should be crafted so that they can be useful to
enforcement of other types of complaints based on program content. For
example, the proposed record retention requirements may aid us in
enforcing our children's television commercial limits and sponsorship
identification requirements. We seek comment on whether there have been
problems in enforcing those requirements that justify imposition of a
retention requirement, as well as whether the benefits of this
additional enforcement tool justify requiring broadcasters to record
their programming 24 hours a day, rather than only 6 a.m. to 10 p.m.,
the hours when indecent programming is prohibited. We seek comment on
how the proposed record retention requirement should apply to digital
television and radio stations. Should the proposed rules apply to all
digital streams, including programming offered on a subscription basis?
8. We seek comment on whether the proposed requirements should
affect our established broadcast complaint process. Currently, we
generally require a complainant to submit a tape, transcript, or
significant excerpt before we will consider a complaint so that we have
some sense of whether the material broadcast may have violated the law
before we commence an inquiry. We ask whether we should change this
policy if we were to require records to be retained. For example, a
complaint containing a general description of the relevant broadcast
programming may be adequate to trigger Commission action because we
could obtain the actual recording from the station. We seek comment on
this matter as well as other possible revisions to our current
complaint process.
9. The proposed record retention requirements will affect the
record-keeping practices of broadcast stations. We seek comment on the
financial burden the proposals may impose. What are broadcasters'
current practices in terms of recording programming and retaining
copies of the recordings? What steps would a broadcast station have to
take to comply with the proposed requirements? How much would it cost
to keep programming for 60 days, 90 days? Does the development and
increased use of digital recording and storage reduce the costs? We
recognize that it may be more costly to retain high definition
television content because of the equipment required to record such
material. We propose that it would be permissible for such content to
be recorded at a lower bit rate so that it is not as expensive to
retain. We seek comment on this proposal. Are there any other means to
reduce the financial costs of complying with the proposed requirements?
We seek specific comment on the impact that retention rules may have on
small broadcasters.
10. We are mindful that we must be cautious in our enforcement of
Section 1464 with respect to indecency and profanity because free
speech rights are involved. We therefore seek comment on whether our
proposals raise any First Amendment issues.
11. We also seek comment on how the proposed record retention
requirements may affect parties other than broadcast stations. For
example, would the retention of third party commercial material, such
as broadcast advertisements or infomercials, raise copyright or
contractual issues? What other issues should we consider in this
context? Although we seek comment on approaches for improving our
enforcement process, we do not raise for comment in this proceeding our
substantive standards for indecency or any other rules that may be
implicated. Any comments beyond the scope of this NPRM will not be
considered.
12. Ex Parte Rules. This proceeding will be treated as a ``permit-
but-disclose'' proceeding subject to the ``permit-but-disclose''
requirements under Section 1.1206(b) of the Commission's rules. Ex
parte presentations are permissible if disclosed in accordance with
Commission rules, except during the Sunshine Agenda period when
presentations, ex parte or otherwise, are generally prohibited. Persons
making oral ex parte presentations are reminded that a memorandum
summarizing a presentation must contain a summary of the substance of
the presentation and not merely a listing of the subjects discussed.
More than a one- or two-sentence description of the views and arguments
presented is generally required. Additional rules pertaining to oral
and written presentations are set forth in section 1.1206(b).
13. Comments and Reply Comments. Pursuant to sections 1.415 and
1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested
parties must file comments on or before August 27, 2004,
[[Page 45667]]
and reply comments on or before September 27, 2004. Comments may be
filed using the Commission's Electronic Comment Filing System
(``ECFS'') or by filing paper copies. Accessible formats (computer
diskettes, large print, audio recording, and Braille) are available to
persons with disabilities by contacting Brian Millin, of the Consumer &
Governmental Affairs Bureau, at (202) 418-7426, TTY (202) 418-7365.
14. Comments filed through the ECFS can be sent as an electronic
file via the Internet to http://www.fcc.gov/e-file/ecfs.html.
Generally, only one copy of an electronic submission must be filed. In
completing the transmittal screen, commenters should include their full
name, U.S. Postal Service mailing address, and the applicable docket or
rulemaking number. Parties may also submit an electronic comment by
Internet e-mail. To get filing instructions for e-mail comments,
commenters should send an e-mail to ecfs@fcc.gov, and should include
the following words in the body of the message, ``get form < your e-mail
address>.'' A sample form and directions will be sent in reply.
15. Parties who choose to file by paper must file an original and
four copies of each filing. Filings can be sent by hand or messenger
delivery, by commercial overnight courier, or by first-class or
overnight U.S. Postal Service (although we continue to experience
delays in receiving U.S. Postal Service mail). The Commission's
contractor, Best Copy and Printing, Inc., will receive hand-delivered
or messenger-delivered paper filings for the Commission's Secretary at
Suite CY-B402, 445 12th Street, Washington, DC 20554. All hand
deliveries must be held together with rubber bands or fasteners. Any
envelopes must be disposed of before entering the building. Commercial
overnight mail (other than U.S. Postal Service Express Mail and
Priority Mail) must be sent to 9300 East Hampton Drive, Capitol
Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail,
and Priority Mail, should be addressed to 445 12th Street, SW.,
Washington, DC 20554. All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
16. The Regulatory Flexibility Act of 1980, as amended (``RFA''),
requires that a regulatory flexibility analysis be prepared for notice
and comment rule making proceedings, unless the agency certifies that
``the rule will not, if promulgated, have a significant economic impact
on a substantial number of small entities.'' The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A ``small business concern'' is one which: (1) Is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the Small Business
Administration (SBA). By the issuance of this NPRM, we seek comment on
the impact our suggested proposals would have on small business
entities. The complete regulatory flexibility analysis is attached as
Appendix A.
17. This NPRM contains proposed information collection(s) subject
to the Paperwork Reduction Act of 1995 (``PRA''), Public Law 104-13. It
will be submitted to the Office of Management and Budget (``OMB'') for
review under the PRA. OMB, the general public and other Federal
agencies are invited to comment on the proposed information collections
contained in this proceeding. Comments should address: (a) Whether the
proposed collection of information is necessary for the proper
performance of the functions of the Commission, including whether the
information shall have practical utility; (b) the accuracy of the
Commission's burden estimates; (c) ways to enhance the quality,
utility, and clarity of the information collected; and (d) ways to
minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology.
18. Written comments on the proposed new and modified information
collections must be submitted on or before 60 days after date of
publication in the Federal Register. In addition to filing comments
with the Secretary, a copy of any Paperwork Reduction Act comments on
the information collection(s) contained herein should be submitted to
Leslie Smith, Federal Communications Commission, Room 1-A804, 445 12th
Street, SW., Washington, DC 20554, or via the Internet to Leslie
Smith@fcc.gov, and to Kristy L. LaLonde, OMB Desk Officer, Room 10234
NEOB, 725 17th Street, NW., Washington, DC 20503 via the Internet to
Kristy L.LaLonde@omb.eop.gov or by fax to 202-395-5167. For more
information concerning the information collection(s) contained in this
document, contact Leslie Smith at 202-418-0217, or via the Internet at
Leslie Smith@fcc.gov.
19. This document is available in alternative formats (computer
diskette, large print, audio record, and Braille). Persons with
disabilities who need documents in these formats may contact Brian
Millin at (202) 418-7426 (voice), (202) 418-7365 (TTY), or via email at
bmillin@fcc.gov. For additional information on this proceeding, contact
Ben Golant, ben.golant@fcc.gov, of the Media Bureau, Policy Division,
(202) 418-7111.
20. As required by the Regulatory Flexibility Act of 1980, as
amended (``RFA'') the Commission has prepared this Initial Regulatory
Flexibility Analysis (``IRFA'') of the possible significant economic
impact on a substantial number of small entities by the policies and
rules proposed in the NPRM. Written public comments are requested on
this IRFA. Comments must be identified as responses to the IRFA and
must be filed by the deadlines for comments on the NPRM provided above.
The Commission will send a copy of this entire NPRM, including this
IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration (``SBA''). In addition, the NPRM and the IRFA (or
summaries thereof) will be published in the Federal Register.
21. Need For, and Objectives of, the Proposed Rules. This
rulemaking proceeding is initiated to obtain comments concerning the
Commission's proposals to enhance the indecency enforcement process by
requiring television and radio broadcast licensees to retain recordings
of their programming for some limited period of time.
22. Legal Basis. The authority for this proposed rulemaking is
contained in sections 1, 2, 4(i), 303, and 307, of the Communications
Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, and 307.
23. Description and Estimate of the Number of Small Entities to
Which the Proposed Rules Will Apply. The RFA directs the Commission to
provide a description of and, where feasible, an estimate of the number
of small entities that will be affected by the proposed rules. The RFA
generally defines the term ``small entity'' as encompassing the terms
``small business,'' ``small organization,'' and ``small governmental
entity.'' In addition, the term ``small Business'' has the same meaning
as the term ``small business concern'' under the Small Business Act. A
small business concern is one which: (1) Is independently owned and
operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the Small Business
Administration (``SBA'').
24. Television Stations. The proposed rules and policies will apply
to television broadcasting licensees, and potential licensees of
television service.
[[Page 45668]]
The Small Business Administration defines a television broadcasting
station that has $12 million or less in annual receipts as a small
business. Television broadcasting stations consist of establishments
primarily engaged in broadcasting visual programs by television to the
public, except cable and other pay television services. Included in
this industry are commercial, religious, educational, and other
television stations. Also included are establishments primarily engaged
in television broadcasting and which produce taped television program
material. Separate establishments primarily engaged in producing taped
television program materials are classified under another SIC number.
As of December 31, 2003, there were 1,733 full power television
stations in the United States. There were also 605 Class A television
stations and 2,129 low power television stations. Therefore, the rules
we may adopt in this proceeding will likely affect nearly 4,500
television station licensees.
25. Radio Stations. The proposed rules and policies potentially
will apply to all AM and FM radio broadcasting licensees and potential
licensees. The SBA defines a radio broadcasting station that has no
more than $5 million in annual receipts as a small business. A radio
broadcasting station is an establishment primarily engaged in
broadcasting aural programs by radio to the public. Included in this
industry are commercial, religious, educational, and other radio
stations. Radio broadcasting stations which primarily are engaged in
radio broadcasting and which produce radio program materials are
similarly included. However, radio stations which are separate
establishments and are primarily engaged in producing radio program
material are classified under another SIC number. As of December 31,
2003, official Commission records indicate that 11,011 radio stations
were in operation, of which 4,794 were AM stations. Thus, the proposed
rules will affect over 11,000 radio stations.
26. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements. The proposed rules would impose additional
reporting or recordkeeping requirements on existing television and
radio stations. We seek comment on the possible cost burden these
requirements would place on small entities. Also, we seek comment on
whether a special approach toward any possible compliance burdens on
small entities might be appropriate.
27. Steps Taken to Minimize Significant Impact on Small Entities,
and Significant Alternatives Considered. The RFA requires an agency to
describe any significant alternatives that it has considered in
reaching its proposed approach, which may include the following four
alternatives (among others): (1) The establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use
of performance, rather than design, standards; and (4) an exemption
from coverage of the rule, or any part thereof, for small entities. The
Commission seeks comment on alternative timeframes for record retention
in order to lessen the regulatory burden on broadcast television and
radio stations. Specifically, we propose relatively short time frames
in order to minimize the burden on broadcasters. We are also cognizant
of the difficulties associated with recording high definition content,
and for that reason propose to allow broadcasters to record programming
at a lower bit rate. The Commission also seeks specific comments on the
burden our proposals may have on small broadcasters. There may be
unique circumstances these entities may face and we will consider
appropriate action for small broadcasters at the time when a Report and
Order is considered.
28. Federal Rules Which Duplicate, Overlap, or Conflict With, the
Commission's Proposals. None.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 04-17428 Filed 7-29-04; 8:45 am]
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