I.          Introduction

Pursuant to the Notice of Proposed Rulemaking (“NPRM”) adopted by the Commission on April 25, 2007 seeking comments in the third periodic review of rules and policies affecting the conversion to digital television (“DTV”), the Benton Foundation, the Campaign Legal Center, Free Press, Communication Service For The Deaf, Hearing Loss Association Of America – New York State, Northern Virginia Resource Center for Deaf and Hard of Hearing Persons, United States Conference of Catholic Bishops, National Hispanic Media Coalition, Democracy Now, Consumer Action, Common Cause, Citizen Advocacy Center, Common Cause Illinois,  Common Cause Michigan, Common Cause Ohio, Common Cause Wisconsin, Illinois Campaign For Political Reform, Illinois PIRG, League of Women Voters of Minnesota, League Of Women Voters Of Wisconsin, Ohio Citizen Action Education Fund, Sunshine Project -- University Of Illinois At Springfield, Take Action Minnesota, Wisconsin Democracy Campaign, the Michigan Campaign Finance Network, the Alliance for Community Media, the Center for Digital Democracy, and Chicago Media Action (“Benton et al.”),[1] hereby submit these comments.

In this NPRM, the Commission addresses a variety of DTV transition issues, including the Status of Consumer Capability to Receive DTV Signals, Status of Broadcasters’ Transition, Reduction and Termination of Analog Service, Return of Pre-Transition DTV Channels, Construction Deadlines, Interference Standards, the DTV Transmission Standard, Fees for Ancillary and Supplementary Services, Station identification and Coordination with Cable Operators, Satellite Systems and Other MVPD Providers. Strikingly absent from the Commission’s third review, however, is a discussion of the public interest obligations of digital television broadcasters. 

The Commission’s failure to address the question of public interest obligations in this NPRM has been highlighted by its own Commissioners. In a separate statement accompanying the adoption of the NPRM, Commissioner Jonathan Adelstein remarked that:

“I am concerned that we have not yet provided broadcasters and the public with a concrete understanding of broadcasters’ public interest obligations in the digital age.  This necessary piece of the transition continues to lag further and further behind.  Congress made clear that broadcasters continue to have public interest obligations in the digital world, but left it up to us to specify how to apply them. 

Commissioner Adelstein further recommended that the Commission address this subject before it finalizes the transition to all-digital television broadcasting:

“. . . I urge my colleagues to act on clarifying the public interest obligations of digital broadcasters as soon as possible. . . . We owe it to the public and to broadcasters to devote sufficient time and resources of this Commission to establishing concrete, measurable public interest obligations to fulfill Congress’s vision of this enhanced digital viewing experience.  Let us not leave the public behind as we continue finalizing the blueprints for digital television.”(Emphasis added.)

Benton et al. cannot agree more. With less than 600 days before the completion of the transition to all-digital television broadcasting in the US, the American public deserves to know how television broadcasters will fulfill their role as public trustees of the airways in the digital age. Benton and CLC therefore urge the Commission to issue clear guidelines to ensure that broadcasters adhere to the law and serve the local educational, informational, civic, minority, and disability needs of the children and adults in the communities that TV stations are licensed to serve.

II.        Broadcasters Have a Statutory Duty to Serve the Public.

Broadcasters have an obligation to serve the public’s interests, not just their own commercial interests.[2] The government provides broadcasters free and exclusive access to a portion of the public airwaves – “spectrum” – for broadcasting. These profitable licenses come in exchange for broadcasters’ commitment to serve the “public interest, convenience, or necessity.” Television has never played a more important role in our lives. It is our primary source of news and entertainment.[3] But today’s television is too often out of touch with today’s realities: parent’s struggling to find educational programming for their children, voters struggling to find basic coverage of campaigns and elections so vital to our democracy, and minorities too often having difficulty finding programming reflective of their lives. In each case, broadcasters have too often lost touch with the needs of the people who own the airwaves.

In 1969, the Supreme Court declared that “it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of the market,” and thus, it is “ the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”[4]

III.       The Commission Has Failed to Provide Guidance On DTV Broadcasters’ Obligations for Over a Decade.

For over 12 years, the Commission has recognized the importance of addressing the public interest obligations of digital television broadcasters, but has failed on the legal mandate to do so despite recommendations from a Presidential Advisory Committee, public interest groups, the Commission’s own Consumer Advisory Committee and broadcasters themselves.

In the 1995 Notice of Proposed Rulemaking on Advanced Television Services and Their Impact Upon the Existing Television Broadcast Service[5] (“1995 NPRM”), the Commission noted that the rules imposing public interest obligations on broadcast licensees originate in the statutory mandate that broadcasters serve the “public interest, convenience, and necessity,” as well as other provisions of the Communications Act.[6] These obligations include the requirements that broadcasters must provide “reasonable access” to candidates for federal elective office and must afford “equal opportunities” to candidates for any public office[7] and that weekly they must provide three hours of children’s educational programming.[8] Licensees must also adhere to restrictions on the airing of indecent programming,[9] must make television programming accessible to people with disabilities,[10] and must comply with the 1996 Act provisions relating to the rating of video programming.[11] The Commission noted that these current public interest rules were developed under the analog model and therefore were shaped by the limitations inherent in analog technology. The Commission sought comment on whether the greater capabilities afforded by digital technology should affect licensees’ obligations to serve the public interest, and if so, how those obligations might be adapted to the digital context. 

Specifically, the Commission asked:

“Should a licensee’s public interest obligations depend on the nature of the services it chooses to provide and, if that is the case, how so?  For example, if a broadcaster chooses to provide multiple standard definition services, should public interest obligations attach to each one? [S]hould public interest obligations be seen as attaching not to services but to licensees, each of whom would be required to operate the facilities  associated with its 6 MHz [digital] channel in the public interest?” [12]

On April 3, 1997, the Commission adopted the Fifth Report and Order on Advanced Television Services and Their Impact Upon the Existing Television Broadcast Service (“Fifth Report & Order”).[13] The order explicitly did not resolve the public interest obligation debate, stating:

“Some argue that broadcasters’ public interest obligations in the digital world should be clearly defined and commensurate with the new opportunities provided by the digital channel broadcasters are receiving. Others contend that our current public interest rules need not change simply because broadcasters will be using digital technology to provide the same broadcast service to the public. We are not resolving this debate today. Instead, at an appropriate time, we will issue a Notice to collect and consider all views. As we authorize digital service, however, broadcast licensees and the public are on notice that existing public interest requirements continue to apply to all broadcast licensees. Broadcasters and the public are also on notice that the Commission may adopt new public interest rules for digital television. Thus as to the public interest, our action today forecloses nothing from our consideration.”[14]

Nearly three years after the Fifth Report & Order and one year after a Presidential Advisory Committee concluded, “As this Nation’s 1,600 television stations begin to convert to a digital television format, it is appropriate to reexamine the long-standing social compact between broadcasters and the American people,”[15] the Commission adopted a Notice of Inquiry on the Public Interest Obligations of TV Broadcast Licensees[16] (“1999 NOI”).

The 1999 NOI again raised unresolved questions about multicasting and the “challenges unique to the digital era”:

“It is thus clear that DTV broadcasters must air programming responsive to their communities of license, comply with the statutory requirements concerning political advertising and candidate access, and provide children’s educational and informational programming, among other things.  But as People for Better TV ask, how do these obligations apply to a DTV broadcaster that chooses to multicast? Do a licensee’s public interest obligations attach to the DTV channel as a whole, such that a licensee has discretion to fulfill them on one of its program streams, or to air some of its public interest programming on more than one of its program streams?  Should, instead, the obligations attach to each program stream offered by the licensee, such that, for example, a licensee would need to air children’s programming on each of its DTV program streams? The Advisory Committee Report contemplates that, under certain circumstances, a digital broadcaster should not have nonstatutory public interest obligations imposed on channels other than its “primary” channel.   A majority of the members of the Advisory Committee believe that the FCC should prohibit broadcasters from segregating candidate-centered programming to separate program streams, because they believe that would violate candidates’ reasonable access and equal opportunities.  We seek comment on these approaches.  In addition, how should we take into account the fact that DTV broadcasters can choose either to multicast multiple standard definition DTV program streams or broadcast one or two HDTV program streams during different parts of the day?”[17]

In addition, the FCC asked for comments on the following issues that have not been resolved yet: 

·                    Disclosure Obligations:[18] Current Commission rules require commercial TV broadcasters to include in their public file, among other things, citizen agreements, records concerning broadcasts by candidates for public office, annual employment reports, letters and e-mail from the public, issues/programming lists, records concerning children’s programming commercial limits, and children’s television programming reports.[19] The 1999 NOI led to a Notice of Proposed Rulemaking,[20] but the Commission has not yet issued a Report & Order.

·                    Minimum public interest obligations:[21] The Commission asked for comments on the Advisory Committee recommendation that “[t]he FCC should adopt a set of mandatory minimum public interest requirements for digital broadcasters . . . that would not impose an undue burden on digital broadcast stations, . . . should apply to areas generally accepted as important universal responsibilities for broadcasters,” and should be phased in over several years.[22] The Commission has not reported on its findings on minimum public interest obligations.

·                    Access to the media:[23] One of the Commission’s long-standing goals in the area of broadcast regulation is to enhance the access to the media by all people, including people of all races, ethnicities, and gender, and, most recently, people with disabilities.  Congress emphasized this goal when it amended section 1 of the Communications Act in 1996 to refine this agency’s mission as making available “to all people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service....”  It further highlighted this goal when it added provisions to the Act concerning people with disabilities, such as section 713 relating to closed captioning and video description.[24]  Given the efficiencies of digital technology, DTV broadcasters are able to “multicast” and air several programs at the same time, as well as provide more information within the signal of each programming stream. The Commission sought comment on the ways broadcasters can use this technology to provide greater access to the media for people with disabilities and innovative ways unique to DTV that the Commission could use to encourage diversity in the digital era. The Commission has not issued a report on its findings.[25]

·                    Enhancing political discourse:[26] The Commission has long interpreted the statutory public interest standard as imposing an obligation on broadcast licensees to air programming regarding political campaigns.[27]  The Supreme Court likewise has recognized the impact television broadcasting has on our political system.[28]   The Commission sought comment on ways that candidate access to television and thus the quality of political discourse might be improved.  The Commission has not reported on its findings.

IV.       The Commission’s Failure to Act Has Been Recognized by Its Own Commissioners and Oversight Committee.

The Commission’s repeated failure to address broadcasters’ public interest obligations in the 1997 NPRM, the 1999 NOI and the 2000 NPRM has not gone unnoticed.  FCC Commissioners Michael Copps and Jonathon Adelstein have been vocal about the importance of resolving the public interest obligation debate. During the Commission’s consideration of the dual and multicast carriage issues in 2005, Commissioner Copps stated:

“We are told to act now because this proceeding has been pending for so long. Other items integral to this one, prerequisites for today’s vote, have been around even longer. Consider that in 1999, more than a year before our first must-carry vote, we opened a proceeding on the public interest obligations of digital TV broadcasters. And in that public interest proceeding, remember that we were not writing on a blank slate. Rather, we were addressing issues raised in a report from a Presidential advisory committee that was issued a full year before that. It is six years later now, and this Commission still has not provided the American people with a clear idea as to how broadcasters’ enhanced digital spectrum is going to improve our viewing experience. The must-carry decision was a golden opportunity in which to consider this—but we let it slip away. Instead we have a record of inaction that will go down, I believe, as the Commission’s major failing in its efforts to move the digital transition forward.”[29] [emphasis added]

Commissioner Adelstein echoed this sentiment, stating:

“For nearly two years, both internally and externally, I have consistently maintained that it would be premature to decide multicast carriage without assurance that each programming stream would indeed serve its local community through the imposition of concrete and meaningful public interest requirements… Unfortunately, for two years I was unable to engage the industry in an effective fashion to step forward and engage in public interest discussions. Illustrating the resistance, the NAB expressed hostility to the Commission even inquiring into broadcast localism. And aside from concluding a children’s programming item last year, the Commission until today continued to sit on an enhanced public disclosure proposal and a more than five-year old general inquiry into digital public interest obligations.”[30]

In February 2007, these same commissioners repeated their warnings to the House Subcommittee on Telecommunications and the Internet.  Commissioner Copps stated:

“Consumer education and outreach are indispensable in gaining consumer acceptance of DTV… Another—and critically important—step we could take is to revive some of our long dormant inquiries into the public service obligations of TV and radio broadcasters after the digital transition. I believe that resolving these questions as soon as possible will help consumers understand the benefits of going digital, which will in turn allow them to make the appropriate buying decisions in advance of the transition.”[31]

And Commissioner Adelstein stated:

“The FCC must develop DTV public interest obligations and encourage more PSAs. First, in order to maximize the benefits to the American people, the Commission needs to determine DTV broadcasters’ public interest obligations. This proceeding has been pending since 1999, and the Commission has failed to produce final rules. Quantitative public interest obligations would encourage broadcasters to develop news and entertainment programming that is compelling and relevant to the viewing audience.”[32]

Additionally, in November 2005, the Commission’s own Consumer Advisory Committee, expressed similar concerns.  Citing a woeful lack of progress, the Committee recommended that FCC should, within six months, issue Reports & Orders in the matters of 1) Public Interest Obligations of DTV broadcast Licensees (MM Docket No. 99–360) and 2) Standardized and Enhanced Disclosure Requirements for Digital Television Broadcast Licensee Public Interest Obligations (MM 20 Docket No. 00–168).[33]

V.        Conclusion

As the foregoing history makes clear, the Commission has repeatedly failed to redefine broadcasters’ public interest obligations in light of the nation’s ongoing transition to DTV. In the words of Commissioner Copps, this “record of inaction” may “go down . . . as the Commission’s major failing in its efforts to move the digital transition forward.”   

The obligation of broadcasters to serve local educational, informational, civic, minority, and disability needs of the public has been created by statute and upheld by the courts.  Further guidance from the Commission is necessary to clarify how these public interest obligations apply to DTV broadcasters and to answer outstanding questions raised by the increased technological capabilities of the digital medium.  Benton et al. urge the Commission to issue clear, concrete guidelines on this subject, and to provide notice to regulated entities and the public regarding how broadcasters will continue to fulfill their public interests obligations in the digital age. 

Respectfully submitted,                                                            

BENTON ET AL.

By: /s/ Charles Benton and Meredith McGehee

August 15, 2007

Appendix I

Descriptions of Commenters

Benton Foundation

The mission of the Benton Foundation is to articulate a public interest vision for the digital age and to demonstrate the value of communications for solving social problems. The foundation is a long-time advocate of defining the public interest obligations of digital broadcasters. Benton Foundation Chairman Charles Benton served on the Presidential Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters and currently serves on the Commission’s Consumer Advisory Committee.

The Campaign Legal Center Media Policy Program

The Legal Center's Media Policy Program shapes political broadcasting policy by promoting awareness and enforcement of political broadcasting laws through FCC rulemaking proceedings, congressional action, and public education.

Free Press

Free Press is a national nonpartisan organization working to increase informed public participation in crucial media policy debates, and to generate policies that will produce a more competitive and public interest-oriented media system with a strong nonprofit and noncommercial sector.

Communication Service for the Deaf

Communication Service for the Deaf (CSD) is a private, non-profit organization that provides programs and services intended to increase communication, independence, productivity, and self-sufficiency for all individuals who are deaf and hard of hearing.  Originally established as part of the South Dakota Association of the Deaf in 1975, CSD provides direct assistance to individuals through education, counseling, training, communication assistance, and telecommunications relay services. 

Hearing Loss Association of America  - New York State

The Hearing Loss Association of America - New York State chapter is  an educational and advocacy organization of people working together across New York State to promote issues of importance to New Yorkers with hearing loss.

Northern Virginia Resource Center for Deaf and Hard of Hearing Persons

Established in 1989, Northern Virginia Resource Center for Deaf and Hard of Hearing Persons (NVRC) is a 501(c)(3) nonprofit organization working to empower deaf and hard of hearing individuals and their families through education, advocacy and community involvement. The organization serves these counties and cities: Fairfax /Falls Church; Arlington; Loudoun; Alexandria; Manassas/ Manassas Park

United States Conference of Catholic Bishops

The USCCB is a nonprofit corporation organized under the laws of the District of Columbia.  All active Catholic Bishops in the United States are members of the USCCB.  USCCB advocates and promotes the pastoral teachings of the Bishops in such diverse areas as education, health care, social welfare, immigration, civil rights, family life and communications.  USCCB has extensive experience producing, funding and placing quality programming for television, radio and cable outlets.  USCCB is committed to maintaining a place for religion and values on the public airwaves and to programming that inspires, informs and educates.  Protection of the public’s rights to disseminate and receive information from diverse sources on the scarce public resource of the airwaves is at issue in this rulemaking and is a matter of particular concern to the USCCB.

National Hispanic Media Coalition

NHMC is a non-profit organization established in 1986 in Los Angeles, California.  The organization has grown to have statewide chapters in Sacramento, San Jose, and San Diego, CA; New York, NY; Chicago, IL; Phoenix, AZ;  Atlanta, GA; and Detroit, MI.  NHMC's mission is to 1) improve the image of American Latinos as portrayed by the media; 2) increase the number of American Latinos employed in all facets of the media industry; and 3) advocate for media and telecommunications policies that benefit the Latino community.

Democracy Now!

Democracy Now! is a national, daily, independent, award-winning news program hosted by award-winning journalists Amy Goodman and Juan Gonzalez. Pioneering the largest public media collaboration in the U.S., Democracy Now! is broadcast on Pacifica, NPR, community, and college radio stations; on public access, PBS, satellite television (DISH network: Free Speech TV ch. 9415 and Link TV ch. 9410; DIRECTV: Link TV ch. 375); and on the internet. DN!’s podcast is one of the most popular on the web.

Consumer Action

Consumer Action is a consumer education and advocacy membership organization that works through its national network of more than 9,000 community based organizations.  It represents the interests of  low income consumers and people of color before legislative and regulatory bodies on a wide range of consumer and privacy issues.  It provides a wide range of multilingual materials on its web sites and  provides more than one million free publications, in five languages, to consumers each year through its network.

Common Cause

Common Cause is a nonpartisan, nonprofit advocacy organization founded in 1970 by John Gardner as a vehicle for citizens to make their voices heard in the political process and to hold their elected leaders accountable to the public interest.

Citizen Advocacy Center

The Citizen Advocacy Center is an award-winning, non-profit, non-partisan, free community legal organization based in the suburbs of Chicago. Founded in 1994, the Center’s mission is to build democracy for the 21st Century by strengthening the public’s capacities, resources, and institutions for self-governance. Community lawyers at the Center simultaneously utilize community organizing, coalition building, advocacy, civic education, and litigation to create systemic reform. 

Common Cause Ohio

Common Cause is a nationwide, nonpartisan, nonprofit advocacy organization founded in 1970 by John Gardner, as a vehicle for citizens to make their voices heard in the political process and to hold their elected leaders accountable to the public interest. Today we have nearly 300,000 members and supporters across the country, including nearly 10,000 members and supporters in Ohio, where Common Cause has been in operation since the 1970s, and we remain committed to honest, open and accountable government, as well as encouraging citizen participation in democracy.

Wisconsin Common Cause

Common Cause in Wisconsin (CC/WI) is the largest non-partisan reform advocacy organization in Wisconsin with more than 4,000 members. It is the only remaining Common Cause state organization in the Great Lakes -- Midwest region of the country.  It has a paid staff of two, with student interns, volunteers and a 23 member bipartisan state governing board.  The 2007 operating budget is $125,000 – half of which is raised from its membership for its advocacy work.

Illinois Campaign for Political Reform

The Illinois Campaign for Political Reform (ICPR) is a nonpartisan public interest group that conducts research and advocates reforms to reduce the influence of money in politics and to promote integrity, transparency, accountability and public participation in government.  The late Senator Paul Simon (D) and Illinois' former Lt. Governor Bob Kustra formed ICPR in 1987.  ICPR has been successful in expanding the state's campaign disclosure law, passing groundbreaking ethics legislation and major elections reform legislation.  ICPR, with its partner the Sunshine Project, maintains an award-winning campaign finance database, which can be accessed at www.ilcampaign.org

Illinois PIRG

Illinois PIRG was founded in 1987, and has offices in Chicago, Springfield, and a national lobbying office in Washington, D.C. The organization conducts investigative research, publishes reports and exposés, advocates new laws, and, when necessary, takes corporate wrongdoers or unresponsive government to court.

League of Women Voters of Minnesota

The League of Women Voters, a nonpartisan political organization, encourages informed and active participation in government, works to increase understanding of major public policy issues, and influences public policy through education and advocacy. The League of Women Voters of Minnesota affirms its commitment to reflecting the diversity of Minnesota in its membership and strives to overcome barriers of gender, race, creed, age, sexual orientation, national origin, or disability in the activities of the organization.

League of Women Voters of Wisconsin/ Education Fund

The League of Women Voters is a nonpartisan political organization that encourages active and informed participation in government and influences policy through education and advocacy. With approximately 1,500 members and 22 local Leagues in Wisconsin, LWVWI is part of a national grassroots network working for responsive and responsible government at the national, state, local and regional levels.  The League provides unbiased voter education through public forums and publications.  We encourage civic participation year-round, not just before elections.

Ohio Citizen Action Education Fund

The Ohio Citizen Action Education Fund, formerly Citizens Policy Center, has been producing money and politics studies for the past ten years.  The Education Fund created the first computerized database of contributions to statewide and legislative candidates and to Ohio political party committees in 1994. 

Sunshine Project at the University of Illinois - Springfield

The Sunshine project is a nonpartisan campaign finance research project based in the Center for State Policy and Leadership at the University of Illinois at Springfield. Its goal is to increase public awareness and knowledge of the role of money in Illinois politics. It is funded by the Center and grants from the Joyce Foundation. The Sunshine project partners closely with the Illinois Campaign on Political Reform to present information, analysis and policy recommendations on the role that money plays in the political process.

TakeAction Minnesota

TakeAction Minnesota is a new organization formed from the merger of the Minnesota Alliance for Progressive Action and Progressive Minnesota. We are a broad-based coalition of organizations and grassroots activists working statewide to build political power,  by effectively combining grassroots organizing, coalition-building, public policy advocacy, and electoral work.

Wisconsin Democracy Campaign

The Wisconsin Democracy Campaign is a nonpartisan political watchdog group founded in 1995 that tracks the money in state politics and advocates for campaign finance reform, media reform and other pro-democracy reforms.

Michigan Campaign Finance Network

The Michigan Campaign Finance Network is a resource for the people and the press of Michigan on issues that affect the functioning of the state's democracy. Core competencies are original research, analysis and communications. Core issues are campaign finances, lobbying, ethics, election administration, judicial independence, redistricting and term limits. 

Alliance for Community Media

The Alliance for Community Media, a national membership organization represents 3,000 Public, Educational and Governmental (PEG) Access centers across the nation.  PEG channels are used by 1.2 million volunteers and 250,000 community organizations.  Local PEG programmers produce 20,000 hours of new programs per week –more new programming than all of the broadcast networks combined.

Center for Digital Democracy

The Center for Digital Democracy (CDD) is dedicated to ensuring that the public interest is a fundamental part of the new digital communications landscape. From open broadband networks, to free or low-cost universal Internet access, to diverse ownership of new media outlets, to privacy and other consumer safeguards, CDD works to promote an electronic media system that fosters democratic expression and human rights. A national, not-for-profit group based in Washington, D.C., CDD is on the cutting edge of new media developments, especially tracking the commercial media market. Through outreach to the press, policymakers, reports, blogs, investigative research and organizing, CDD plays a unique and pivotal role helping foster the development of sustainable online communities and services essential to civil society in the 21st Century.

Chicago Media Action

Founded in 2002, Chicago Media Action (CMA) is an activist group dedicated to analyzing and broadening Chicago's mainstream media and to building Chicago's independent media.