PUBCASTERS DIVIDED ON FCC'S TAPE RETENTION PROPOSAL
The FCC proposal that broadcasters retain recordings of their programs for 60-90 days (CD July 8 p4) drew mixed initial responses from public broadcasters. The Assn. of Public TV Stations (APTS), representing more than 350 stations, said it would oppose the proposal, while some public radio stations welcomed it as a good administrative procedure that would bail them out in the event of listener complaints. Public radio attorney and former NPR legal counsel Ernest Sanchez said what’s largely gone unnoticed is a U.S. Appeals Court, D.C., decision in 1978 striking down FCC requirements that noncommercial broadcast stations keep audio recordings of their programs for 60 days.
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The FCC rules passed in 1975 required that all public TV and radio stations that received federal funding from the Corp. for Public Bcstg., the NTIA or the Endowments of the Arts and Humanities keep audio copies of their programs in which “any issue of public importance is discussed” for 60 days and make it available to the FCC on request. Community- Service Bcstg. of Mid-America challenged the rules, arguing they violated the First and 5th Amendments. The D.C. Circuit agreed, ruling them unconstitutional and as having a chilling effect on political speech.
Against the backdrop of the court’s ruling, there were 2 ways of looking at the FCC’s recent inquiry, said Sanchez: (1) The appeals court had already spoken and it will look with disfavor on any retention requirements because they would generally have a chilling effect on political or other speech, including satire and political commentary. (2) Part of what the court may have been concerned about then was that the FCC’s 1975 requirements applied only to political speech and not to other kinds of speech and that political speech was being singled out. “If this requirement is put in place across the board, maybe the court would be more willing to accept it as reasonable,” he said.
As for why many public radio stations were favorable, he said even when the FCC passed the rules in 1975 and they were in effect for a couple years, there wasn’t a lot of objection from the radio side because equipment was already available to make very low-speed archival copies of the programming, he said: “Many people had it and had their own administrative or institutional reasons to have an archival record of what was on the air.” The equipment has become even less expensive now, he said, so there’s a split in opinion on the cost burden and whether it’s prudent to comply. “I think public stations by and large take their responsibilities to comply with FCC rules very seriously. So I don’t think that the typical NPR or PBS station is going to be greatly concerned about this, although there are some philosophical issues beyond whether compliance is practical.”
Some public radio station managers, especially those licensed to universities, said it was good to have a recording of programs in case of complaints from listeners and to deal with problems associated with having a primarily student staff after hours. They also said European stations having been living with an archiving mandate for many years and have developed inexpensive software for capture and storage. Others said they saw no reason why stations shouldn’t do it, considering the current regulatory environment and the minimal cost of digital storage.
“It’s going to be terribly expensive [for TV stations] and we are trying to get some specific figures for that,” an APTS spokesman said. Stations costs would go up because of storage and transfer requirements, she said: “We are definitely going to oppose the proposal.” NPR declined comment.
Meanwhile, Miller Communications Pres. Randal Miller told the FCC that keeping recorded programming an extended time will be costly. The FCC last week proposed that broadcasters be required to retain recordings of their programming 60-90 days in case the Commission needs to determine whether it contains indecent content (CD July 8 p4). Miller, in an ex parte filing, suggested that stations that have kept “their nose clean” shouldn’t be subject to the requirement, “especially in small markets where installations and maintenance of such recording equipment would be costly and a burden to maintain.” Miller owns 7 small market radio stations in Ill.