TRANSCRIPT OF PROCEEDINGS
TAKEN ON JUNE 8, 1998
AT 9:38 A.M.
Morning Session
[Click to view the afternoon session]
Reported by:
BARBARA J. STROIA, RPR
2
TRANSCRIPT OF PROCEEDINGS, taken
on the 8th day of June, 1998, commencing at 9:38
a.m., at the Marquette Hotel, 710 Marquette Avenue,
Minneapolis, Minnesota, before Barbara J. Stroia,
notary public.
APPEARANCES
MR. LESLIE MOONVES, Co-Chair,
President and CEO, CBS Television.
MR. NORMAN J. ORNSTEIN,
Co-Chair, Resident Scholar, American Enterprise
Institute.
MR. CHARLES BENTON, Chairman and
CEO, Benton Foundation, Public Medica, Inc.
MS. PEGGY CHARREN, Visiting
Scholar, Harvard University Graduate School of
Education, Founder, Action for Children's
Television.
MR. HAROLD C. CRUMP, Vice
President, Hubbard Broadcasting, Inc.
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MR. FRANK H. CRUZ, Vice
Chairman, Corporation for Public Broadcasting.
MR. ROBERT W. DECHERD, CEO,
Chairman of the Board and President, A.H. Belo
Corporation.
MR. BARRY DILLER, Chairman and
CEO, HSN, Inc.
MR. WILLIAM F. DUHAMEL, Ph.D.,
President, Duhamel Broadcasting Enterprises.
MS. KAREN EDWARDS, Designated
Federal Officer, NTIA.
MR. ROBERT GLASER, Chairman and
CEO, RealNetworks, Inc.
MR. JAMES FLETCHER GOODMON,
President and CEO, Capitol Broadcasting Company,
Inc.
MR. PAUL A. LA CAMERA, President
and General Manager, WCVB-TV.
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MR. RICHARD MASUR, President,
Screen Actors Guild.
MR. NEWTON N. MINOW, Professor,
Communications Policy and Law, Northwestern
University, Counsel, Sidley & Austin.
MR. JOSE LUIS RUIZ, Executive
Director, National Latino Communications Center.
MS. SHELBY SCHUCK SCOTT,
President, American Federation of Television and
Radio Artisits.
MS. GIGI B. SOHN, Executive
Director, Media Access Project.
MS. KAREN PELTZ STRAUSS, Legal
Counsel for Telecommunications Policy, National
Association of the Deaf.
MR. CASS R. SUNSTEIN, Karl N.
Llewellyn Distinguished Service Professor,
University of Chicago law School.
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MS. LOIS JEAN WHITE, President,
National Parent Teacher Association.
MR. JAMES YEE, Executive
Director, Independent Television Service.
* * *
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CHAIRMAN MOONVES: It is June 8,
1998. We are in Minneapolis, Minnesota. First
of all, I'd like to thank Mr. Crump for his
fine hospitality. Great to be in your fine
city, and you've done a spectacular job and,
we're very happy to be here.
In addition, Rob Glaser in RealNetwork,
we'd like to thank them for sponsoring this
broadcast on the NTIA website.
Frank Blythe will not be here, and Barry
Diller will be participating via telephone, as
will Richard Masur and Shelby Scott from
Geneva, Switzerland. Are we trying to get in
touch with them now via the operator?
MS. EDWARDS: Yes, we are.
CHAIRMAN MOONVES: So because
three of the members will be joining us by
telephone, please identify yourselves so they
will know who is talking.
In a moment, Norm is going to talk about
the process we would like to do, take today in
terms of an outline that he has drawn up about
the various issues. I'd like to thank all the
members for participating, and there's a lot of
very good thought put into the process. I'd
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like to thank Norm for drawing up an outline
which at least gives us the framework to begin
our discussions today because I think there
will be a lot of interesting things to come out
of it.
As you know, our next meeting officially
was scheduled for September. There is a real
possibility -- and it depends on what happens
today and in the next few weeks -- there's a
real possibility we may have to add a meeting
in August, so we should leave open that
possibility. Once again, that's something that
we won't be able to determine for a few weeks
to see how close to a consensus we are. As I
said, my guess is we probably will need another
meeting.
And Norman, I will turn it over to you,
your opening remarks.
CHAIRMAN ORNSTEIN: Thanks very
much, Les. I also want to thank Harold, and I
urge all of you to look out the window and see
the beautiful lakes that makes this the area
of -- it's actually more than 11,000 lakes, but
for public relations purposes, they've said
10,000 lakes. I speak as a native of this
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state born in Grand Rapids, Minnesota, the
birth place of Francis Gump. People here know
some others, Judy Garland, of course. But I
find whereever I go, people ask me why there is
a typo on my resume when it should be
Grand Rapids, Michigan. So it's good to be in
a place where they know the reality here.
As Les suggested, we're going to try to
work through the major areas that we have
identified and that you have identified as core
of what we might recommend here and try to come
as close as we can to reaching understanding on
both the broad ones -- some areas we clearly
already have -- and as many of the specifics as
we possibly can. I think the process that
we'll follow is at the conclusion of this
meeting, we will canvas all of our members
again and see where we are.
The meeting, I suspect, will be just like
our previous ones in that it will not be simply
an opportunity for members to exchange views,
but we will -- we all learn from and change, to
some degree, our perspectives, and so we may
have somewhat different ideas, especially on
some of these specifics.
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And from that, over the course of the few
weeks that will follow, Les and I will canvass
you all again, talk amongst ourselves, begin a
drafting process, we hope, and it's quite
possible, although nowhere near certain from
that, that we'll actually be in a position
where we won't have to have another meeting.
But at this point, it is also something we
needed to reserve. Yes, Bill?
MR. DUHAMEL: How are we going
to do the drafting process? I don't understand
that.
CHAIRMAN ORNSTEIN: We are in
the process of -- our staff has been in the
process for a while of taking bids from
professional writers who have both been
experienced in drafting reports of this sort
for different advisory committees and who are
knowledgeable in this area, and they are going
to pick some individual or two.
It's possible it will be an individual to
do a lot of the first drafting, and then
somebody else will work the production through
because we're on a fairly tight time frame.
That's all for drafting purposes, and
10
obviously, we circulate whatever comes out of
that among the group we hope several times
along the way.
MR. DUHAMEL: Of course I know
dealing with my lawyers they say the power of
the first draft is important. That's why we
always have our lawyer do the first draft. Who
does the draft is important in this.
CHAIRMAN ORNSTEIN: There's no
question about it. This is, from what I can
gather, the practice that is normally followed
with advisory committees.
MR. DUHAMEL: Which writers are
we looking at?
CHAIRMAN MOONVES: Karen has
brought a number of writers to our attention.
And once again, Bill, I think the important
thing is -- and I don't disagree with you in
terms of the first draft -- the important thing
is we will all have ample time to comment in
great detail to every line in that draft.
CHAIRMAN ORNSTEIN: We have left
it up to our staff to go through a professional
process of picking the writers here. We're not
doing it. So if you're suspicious that either
11
Leslie or I are going to try to manipulate this
process so that we can have our lawyers do it,
rest assured that this is being handled at a
different level. Anyhow --
CHAIRMAN MOONVES: By
nonmanipulative persons.
CHAIRMAN ORNSTEIN: Having gone
through the calendars that we have generally
pretty much settled on, it appears -- of course
it's difficult to find any date in the summer
when we can get the vast bulk of our members
together -- it appears that August the 5th,
Wednesday, August the 5th, seems to be the date
that works for the most members. It's a
Wednesday. I'm sorry that it's a Wednesday.
We tried to pick something that had the least
absences, and I'm sorry that it's a Wednesday.
It's just one of those things that happens.
By the way, Barry Diller is now joining
us. Here's not in Geneva, he's in Los Angeles,
I think, but welcome, Barry.
We were saying that we were going to try
and go through the areas today that we think
will possibly comprise the core of any report
recommendations that we'll make, try and come
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as close as we can today to a consensus on the
larger issues and some of the specifics.
If we can't, in the weeks that follow,
begin to pull things together, if there are a
few areas even where there are serious matters
of contention among the members, then we're
going to reserve the date of Wednesday,
August 5th for another meeting. So let's -- if
you can, just simply put that aside and hold it
on your calendars.
MR. RUIZ: For those of us who
finance our own -- (inaudible) -- it's a $1,700
ticket.
CHAIRMAN MOONVES: If it doesn't
go through a Saturday?
MR. RUIZ: Yeah.
MR. DUHAMEL: $1,500 from Kansas
City.
CHAIRMAN ORNSTEIN: Well, we'll
try to figure out something or work with you as
best we can. We've set out in all of our
meeting to try and pick dates that would
facilitate weekend travel. This one we may not
even have the meeting, but this just seemed to
be the date that worked the best.
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MR. DUHAMEL: What about the
following Monday?
CHAIRMAN ORNSTEIN: I'll give
you a couple of tricks.
MR. DUHAMEL: Monday the 10th,
which would allow a Saturday night stay
Saturday night stay. There's an alternate date
listed there of Monday the 10th when Paul La
Camera --
MS. EDWARDS: I think we were
trying to keep it as close to the beginning of
August as possible, I think the thinking there
that you would need a final meeting. So the
thought would be end of July, which is
absolutely impossible.
MR. DUHAMEL: The middle of the
week is an expensive trip, while a Friday or a
Monday, you know, allows a Saturday night stay,
and it literally makes a difference of $1,200,
you know, between $1,500 and $300.
CHAIRMAN ORNSTEIN: Yeah, it is
a big difference. We wanted to make this late
in July if we could.
CHAIRMAN MOONVES: I think the
five days between the 5th and the 10th.
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CHAIRMAN ORNSTEIN: All right.
CHAIRMAN MOONVES: Change to the
10th.
CHAIRMAN ORNSTEIN: That one
doesn't work for you, Paul? Can you phone in?
MR. LA CAMERA: I'll be in
Sicily. It might be difficult.
CHAIRMAN ORNSTEIN: Well, we've
got two phoning in from Geneva. I don't know.
We've set precedent.
CHAIRMAN MOONVES: We may need
some help from Sicily at that point.
CHAIRMAN ORNSTEIN: Let's see if
we can get that outline.
MS. EDWARDS: Yes, we'll do that
today, Xerox that.
CHAIRMAN ORNSTEIN: Well,
let's -- I think we ought to start with the
Code of Conduct.
CHAIRMAN MOONVES: Did you pass
out the outline?
CHAIRMAN ORNSTEIN: Yeah, it's
being Xeroxed now.
MS. CHARREN: Can I ask one
question? I take it that the date of the
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September meeting--
CHAIRMAN ORNSTEIN: We're not
going to set that yet until we see where we
are. We'll work that one through.
We have had a couple of task forces
working and doing a tremendous amount in the
last couple of weeks so that we could try and
take the areas where we clearly seem to have an
overall agreement, a voluntary Code of Conduct
and some variation of the education proposal
that both Gigi and Robert came up with and work
through some of the details to try and come up
with as much as we can before this meeting. So
maybe we should start and spend as much time as
we need to, certainly this morning, on those
two, and perhaps we should start with the Code
of Conduct.
You have all seen, I hope, and read the
draft that Cass Sunstein, who chaired this
committee and put a tremendous amount of work
into coming up with hopefully some
understanding for us of the antitrust issues
here, and reading, in particular, that letter
from Sheila Anthony, the head of the antitrust
division, on why we had controversies over
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antitrust questions in the Code of Conduct. It
at least made it clear to me that we shouldn't
have any difficulties with what we're doing
here. That was a very narrow question of
trying to preclude -- basically trying to raise
the price of advertising, which I don't think
we need to worry about, but we can easily come
up with a rationale there, and with a draft of
specifics of the code, including how it might
be monitored and enforced down the road.
And Cass, maybe you could start with a few
minutes on what you did and where you are. And
we also have now a fairly interesting proposal
that perhaps Jim Whitman can discuss on the
table, specifically for minimum level of
obligations, but let's hear from Cass first.
MR. SUNSTEIN: Yeah, I wanted to
make sure that the members of the Broadcasting
Task Force got copies first. So all of the
members of that task force have had faxed to
them what I did.
The rest of you may or may not have it.
I'm not sure.
MS. SOHN: We haven't gotten it.
MR. SUNSTEIN: Okay. Is it
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being copied now, Karen, for everybody?
MS. EDWARDS: Did you want
everyone to have a copy?
MR. SUNSTEIN: Yeah, let's make
a copy for everybody. I wanted to make sure
that the task force people had a crack at it
first, but let me just describe it. It's very
simple.
The first idea is that this idea of codes,
actually, has a very long history. What
surprised me was that the 58 Code was a
successor to a long series of practices of
self-regulation in the broadcasting industry
that were followed until the antitrust
challenge, so there's a discussion of the
history here. So it wouldn't surprise you the
concerns that have come up since 1923 or so are
about the same with changing technologies as
the concerns that we have.
The antitrust issue is more easily
remedied and less of a concern than I and I
think some others had feared. The lower
court's opinion, district court opinion,
involved a narrow segment of the old code; that
is, that segment that seemed to control
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advertising time in the interest of driving up
advertising revenue. So it really wasn't an
antitrust challenge. The Justice Department
didn't bring an antitrust challenge to those
parts of the old code that tried to protect
programming content. It was about restrictions
on advertising time. It seemed like a
traditional form of collusion. That's what the
court held.
There are two lower court opinions, also,
upholding content controls as against antitrust
challenge, and there's a Justice Department, an
official position by the Justice Department in
1993, suggesting that efforts to regulate
violence on television through something like a
code wouldn't create an antitrust problem.
So the basic idea is that the kind of
restrictions that we're talking about; that is,
voluntary restrictions, would probably have
little adverse effect on competition, they'd
allow a large room for competition among the
signatories to the code, and they would
probably be upheld under the Rule of Reason,
which the antitrust law applies to regulations
of this kind.
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There's a lot of technical detail here,
but I think it would really be boring. So just
the bottom line is the antitrust concern isn't
trivial, but it's not a lot more than trivial.
There's an important First Amendment
notation that should be added here, which is
that if there's a sense that the government is
mandating this code or imposing it on threat of
coercion, then the First Amendment kicks in.
The code, by itself, so long as it's genuinely
voluntary, raises no First Amendment problem at
all. But if there's a sense that we're
threatening or mandating a code, then there is
a problem, so this has to be handled very
delicately as a suggestion, which if adopted,
would be adopted only voluntarily and without
any coercion in the background.
With respect to the content of the code,
basically what I've done is to take the old NAD
code to delete the provisions that seem
unrelated to our concerns, to take away those
provisions that raise antitrust problems and
basically to do maybe a tiny bit of tinkering
and updating with those old provisions of the
code that seem connected with what our mission
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is about.
I guess the way to think about this is
that there's a general principles and rationale
section which is a very slight amendment of the
old NAD code. Then there are substantive
provisions for which maybe the most important
to us involve responsibility to our kids and
covering elections. Those that have been kept
tried to steer middle course between the
vacuous and the unduly specific.
And then there's a provision on
enforcement, which is very much like the old
NAB enforcement provision, but it's put in a
little more in the way of carrots; that is,
rewards for good programming and a tiny bit
more in the way of at least symbolic sticks in
the form of notification to the FCC of
egregious or continuing violations,
notifications which are, by themselves,
entirely without legal force and effect.
That's very important, maybe a First Amendment
problem otherwise.
I'm not sure what way to organize the
discussion, but we have provisions here which
have been based on our previous discussions and
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some informal discussions between me and some
of you. But basically, these are, you know, an
introduction to discussion, and I bet we can do
a lot better. They're just my, with
consultation, minor revisions to the old NAB
codes with a few editions.
CHAIRMAN ORNSTEIN: Okay. I
think there are, clearly, several areas we need
to consider, Cass.
We need to consider the substance of the
code itself, what we would recommend
specifically, go into it in each of these
areas. We need to consider what follows from
the code, including reporting requirements of
public interest activities and how we want to
frame those, and we've had some discussion of
that, as well as monitoring the performance and
highlighting the adherence here.
And I think with that, especially given
your admonition about the First Amendment
considerations, we need to have some discussion
of how we can keep this a voluntary process
while making sure that it achieves -- or if not
making sure, enhancing greatly the chances that
it will achieve what we want it to achieve,
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which is stations adhering to the code.
MR. SUNSTEIN: Right. It should
be voluntary. Our relationship to the
broadcasting industry should be one of
recommendation and nothing else.
CHAIRMAN ORNSTEIN: Yes.
MR. SUNSTEIN: It is fine if the
broadcasting industry makes the code mandatory
on its members. So self-enforcement that has
strict punishment, so long as it's not
government mandates, that's fine.
CHAIRMAN ORNSTEIN: What if we,
as an independent body, but which has its
genesis in the federal government, recommended,
not only that broadcasters create a code, but
that it be taken into account in the license
removal process.
MR. CRUMP: This is what
occurred, you may recall, in the old code.
This is exactly how it was handled. It was
strictly a voluntary basis on the part of the
broadcaster, but there was a little section in
the old license renewal form where you had to
indicate whether or not you were a code
member. And if you were not, it simply opened
23
the door for perhaps further investigation, and
usually did, on the part of the FCC at license
renewal time. So you had an implied situation
there that I think this is good.
CHAIRMAN ORNSTEIN: I'll give
you my own. This is a personal preference.
What I would like to see happen down the road
is that if you end up with stations that fall
way below any of the minimum standards that we
set that, in effect, you turn around the
license renewal process. The burden goes to
the broadcaster to show why he has not come
anywhere close to this, and in a way,
strengthening what became the practice of the
FCC under Chairman Wiley when stations were not
performing their public interest obligations,
the license renewal got racheted up to the
level of the commissioners themselves.
MR. CRUMP: Well, I would remind
you again that under the old code, the way it
was enforced, the code itself had it's own
enforcement wing, and they pushed this and they
did mean it. They did put clamps on the guy.
It was not a government regulatory portion at
all.
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CHAIRMAN ORNSTEIN: Right.
Well, we don't want to make it that. Clearly,
the other area we need to discuss is what kind
of enforcement wing would emerge in the
industry itself.
MS. CHARREN: Peggy Charren.
There's some aspects of the codes that are very
easily enforced, especially if they tend to be
taught the numerical way of thinking about
content, some percent of, or you must do this
when it's very specific, just the way the
advertising limits in the Children's Television
Act are carefully enforced by the FCC and
stations are getting fined for going over those
limits. That's an easy thing to count.
When it comes to defining for the FCC to
talk about the educational programmings,
they're going to find that very tough if they
try to do it, and that's always a part of the
problem of that law because that's, you know,
that's one person's opinion versus somebody
else's.
There are aspects of the old code, like
the description of how to serve children, that
were never paid any attention to. They
25
actually sounded like I wrote them, and if they
were happening during the 30 years that I was
in business, I never would have started to
act. It was a very nice description of what
the public interest obligation to children
was. I'm looking at Paul La Camera who
understood them and started the life of that
station when it was taken over by -- what was
it called?
MR. LA CAMERA: Boston
Broadcasting.
MS. CHARREN: Boston
Broadcasting with a daily children's program.
So there are some broadcasters who do pay
attention to even the soft and fuzzy language.
But when they don't, I suggest that it's
going to be impossible even for the industry to
say they're not doing it, and that we shouldn't
think that that part of the code, which is
different from some discussion of free time
maybe, which is easy to see if they're doing
that or not doing that, that came into the
code.
That will never work, and just as a
commission, we should understand that it will
26
never work to be enforced. I don't mean it's
illegal, but we'll never be able to enforce it,
so that we shouldn't have that as the way we
think that that programming is going to
happen.
CHAIRMAN ORNSTEIN: We also have
to consider what our alternatives realistically
are, and I think, frankly, there are always
going to be areas of subjectivity where form
location alone won't work.
What one has to hope in that process is if
you can have a disclosure of what stations are
doing and you have a process where outside
groups and others bring public attention to
what they feel are the failings here.
MS. CHARREN: And that's what
happened with children, but I'm just saying 30
years later it still isn't fixed.
CHAIRMAN ORNSTEIN: Sure, but we
don't have a better way to do it.
MS. CHARREN: We shouldn't get
too optimistic about what it's going to mean
for public interest in the question.
MR. BENTON: Charles Benton.
Just to question your having raised the issue
27
from your 30 years' experience what should be,
what should we do because, clearly, to have, as
Cass said, the big question is the vacuous
issue specifically -- I thought that was a
great point. If the old description of
children's programming falls into the category
of vacuous --
MS. CHARREN: I don't mean the
description is vacuous. I mean the enforcement
has to be vacuous. That's different. Even the
description wasn't bad in the original
document.
MR. BENTON: What should be done
about that?
MS. CHARREN: What should be
done? My solution had nothing to do with the
code, and therefore, I would rather discuss
those at other parts as we go into the report.
CHAIRMAN ORNSTEIN: It is
important to emphasize that this is not the
only recommendation we're going to make here,
obviously. It interacts with the others. Some
of what you're talking about may be dealt with
with minimum standards, too. And Goodmon has a
question.
28
MR. GOODMON: Just for
information, how many stations are in the NAB?
How many are in the NAB? That's for
information purposes. I mean, there could
be -- not everybody is going to subscribe to
the code. We're not suggesting everybody has
to subscribe to the code.
Minimum standards, from my point of view,
is outside of the code, so that there's a
minimum standard for everybody. And then the
next level is in the voluntary NAB code, and
rather than having minimum standards in the
code as a voluntary basis. Maybe I'm just
missing the --
CHAIRMAN ORNSTEIN: No, if --
MR. GOODMON: But how many
stations are in the NAB, is my question? I
don't know that. Jack is --
MR. JACK GOODMAN: About 1,100
television stations.
MR. GOODMON: Out of how many
overall.
MR. JACK GOODMAN: 1,500 full
power stations.
CHAIRMAN ORNSTEIN: So 1,100 out
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of 1,500. So what you're talking about, Jim,
is a set of minimum standards that would apply
to all 1,500, every broadcaster, every
full-power broadcaster.
MR. MINOW: Newt Minow. Jim's
point is a very good one. The best
broadcasters belong to the NAB. The worst
broadcasters do not belong to the NAB, and
you're very often preaching to the choir.
Now, I know Cass has said that it would
not be proper to require membership in the
NAB. However, I would point out under the
Securities Act, every broker/dealer must belong
to the National Association of Broker/Dealers
which is able to discipline broker/dealers for
violating its code. I don't know why that
isn't relevant -- or a relevant precedent here.
MR. SUNSTEIN: I didn't mean to
take a position on that.
MR. MINOW: I recognize the
problem. I favor mandatory membership in the
NAB.
MS. SOHN: Is that a possible
thing to do? I mean, can you make membership
mandatory?
30
MR. MINOW: Congress would have
to pass a law.
MR. SUNSTEIN: Versus who would
the "you" be. If the "you" would have to be
Congress, it would appear, and then the
question would be, would there be a First
Amendment problem if Congress required all
stations to be in the NAB with the knowledge
and hope that participation required adherence
to a code which had substantive control.
MR. MINOW: My argument, Gigi,
is I don't think broadcasters are less
important than broker/dealers, and I think if
Congress looked at it, they'd see is.
MR. DUHAMEL: It may be a First
Amendment. Broker/dealers don't have a First
Amendment.
MR. MINOW: If the NAB created
its own standards.
MS. CHARREN: Peggy Charren. I
think I understand what you're saying, and I
used to take that position about advertising to
children; that it should be like a disclosure
when you put a stock up for sale instead of
what we do.
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But I think that in the court of public
opinion, it's better to have the broadcasters
not belong and sort of take the people who do
that kind of thing can take them apart for
being part of the -- you know, there's the 400,
the Society 400. We can have the Broadcaster
400 who put it to the industry. It's sort of a
nice way of separating the wheat from the chap
maybe.
And given that I don't think the code is
going to be a very significant way to get
public interest anyway, I don't really mind
that the broadcasters don't belong. How does a
station that just does home shopping manage to
get to be part of some wonderful series of
things that we should do in the public
interest? You're changing the whole way
broadcasting functions today by doing that.
CHAIRMAN ORNSTEIN: Of course,
one of the things, we're going to, no doubt
later on, have an animated discussion on the
pay or play issues. I mean, partly my support
for provision of that sort is because it seems
to me that stations that do shopping or
religious programming, that we'd be much better
32
off, instead of requiring them to put on the
kind of programming for which they are
ill-suited, to have them pay in lieu of those
things and put the money into better
broadcasting, although we have a wide range of
views here.
Let me just focus our discussion. We can
have a very interesting discussion about
mandatory membership, and I don't know what the
NAB's position on this would be either, but we
don't need to get into that at the moment. All
those revenues against a government mandate, an
interesting balance to strike, but let's not
discuss that now.
And since Jim has put a proposal on the
table for us, which most of us haven't read yet
about minimum standards, but this is outside of
the code. Well, at one level we might want to
consider that first. I think it is appropriate
to consider it later and give us a chance to
read it, perhaps, and discuss it after lunch.
Obviously, if we agreed on the set of minimum
standards that either fit these specifics or
came close to it, then it does change the
dynamic here in terms of the code itself as
33
well, and so that's something that we need to
come back to.
CHAIRMAN MOONVES: This is
getting away from the volunteerism, this
minimum code, is that what you're saying?
CHAIRMAN ORNSTEIN: Well, what
Jim Goodmon, I think, has thrown on the table
is a set of minimum standards that would not be
incorporated into the code, but rather be a
separate entity so that it brings in all
broadcasters, including those who are not
members of the NAB and who, therefore, don't
adhere to the code.
MR. BENTON: One factual
clarification. Charles Benton here. There are
1,541 broadcasters, as I understand it, of
which about 350 are public broadcasters. That
leaves approximately 1,200 commercial
broadcasters. I'm wondering, of the 1,100, are
these mostly commercial broadcasters? Is the
preponderance of absence among the public
broadcasters? What are the facts here, Jack?
MR. JACK GOODMAN: I don't have
that number at hand, but the large number,
there are a large number of public
34
noncommercial stations in membership, but the
percentage of membership among noncommercial
stations is lower than it is among commercial
stations. I don't have the numbers at hand.
MS. SOHN: I'd like to get the
numbers.
MR. BENTON: Yeah, let's get the
numbers. We need the facts here.
CHAIRMAN ORNSTEIN: Let's then,
for now, separate out the issue of minimum
standards for what I suspect will be a vigorous
discussion later on, although we should note
for the record that this interesting proposal
has come from the president of Capitol
Broadcasting, and talk about the code itself.
And maybe, Cass, we could just go through
not every specific, but the sort of bullet
points in these areas that we've raised and
then have some discussion. Let's go through
each of them seriatim and then maybe talk about
a self-enforcement mechanism after that.
MS. SOHN: We still don't have
Cass' thing.
CHAIRMAN ORNSTEIN: It's a
little slow to get them produced on the
35
copier.
MS. SOHN: Can I just ask a
question really quick while this is getting
copied.
On the antitrust thing -- and I don't know
why I didn't read this, I thought I've read
every piece of paper I've been sent in the last
month, but I guess not. Tell me a little bit
more about the antitrust concerns. You said
they're not huge, but there are still -- you
still have some antitrust concerns. Can you
tell me what they are?
MR. SUNSTEIN: Well, you could
imagine a lawsuit brought by a disappointed
producer who wanted to get programming which
would violate the code. They'd have to show an
antitrust injury. It's not at all clear that
they could show that. They'd have to show
their inability to get on television is a
product of the code. Extremely speculative.
Possible they could show an antitrust injury,
and what they'd claim then is that this
caramelizes the industry in such a way as to
prevent certain programming from getting on the
air.
36
And then the question would be is this
Cartel, subject to -- this is going to be
really boring, so I apologize. Is it subject
to a per se rule of invalidity which the
antitrust law applies to price fixing. That
would be a shock. That would be like a meteor
hitting the earth tomorrow. It's very
unlikely.
And if they show an antitrust injury, the
question is whether this fails under the Rule
of Reason, and the first question would be
whether this actually decreases competition
rather than increases it, and it's not --
that's not clear. It might increase
competition by putting on shows that wouldn't
otherwise be on shows, increasing viewer
choice, and there would be internal competition
among signatories to the code in different
areas. So it's not at all clear that this
isn't pro competitive.
If you can show that this has anti-
competitive effects, the question is whether it
can be justified by social welfare
consequences, which may be such things as
producing more programming for kids, serving
37
educational goals for adults as well, serving
political process codes by entering more
informed electorates, so forth.
Those sorts of things the court has shown
some hospitality to in cases involving what
Newt is describing; that is, efforts by
professional associations to engage in self-
regulation.
CHAIRMAN ORNSTEIN: We don't
need to get into anymore detail.
MS. SOHN: I just have one
thought, if I could just ask about. Perhaps
one thing to do -- and this is not a cure-all
yet. I've enjoyed this, but probably only one
of the people that has.
But perhaps it's not a complete code.
Perhaps one of the things that could be done is
maybe one of the networks and some others, some
other broadcasters, could kind of like, if this
code develops, say, you know, we believe this
is legal, certified this is legal. That,
obviously, wouldn't stop anybody from
eventually bringing an antitrust suit, but the
point is to try to get as many people to say,
yeah, this is kosher, this is legal and perhaps
38
sort of serve as a beacon that this code is
okay.
MR. SUNSTEIN: I'm going to do
some more work on this, and I have talked to a
bunch of antitrust specialists, and not one
think this raises serious antitrust problems so
far.
If it, otherwise, does raise an antitrust
problem, the fact that the signatories
certificate that it's legal won't help.
MR. DUHAMEL: One question that
I have on this, in Sheila Anthony's letter, she
says, "The conditions of the exemption --" this
is the antitrust exemption "-- that any
guidelines be truly voluntary and the
collective activity not result in the boycott
of any person."
Wouldn't that raise the, you know, the
satisfied producer who didn't -- wouldn't he be
just almost --
MR. SUNSTEIN: It wouldn't be a
boycott victim. If someone is excluded because
there's an agreement, there's a difference
because someone is excluded because there's an
agreement that you can't have, let's say,
39
really violent programming on and a boycott of
a particular person.
The reference is to if there's a boycott
of a particular producer or some such, then you
have a hard time, but if you have people that
don't get on because of the agreement, that's a
different --
MR. DUHAMEL: I was worried
about that collective activity because this is
essentially what a code is, it's a collective
activity.
MR. SUNSTEIN: She's referring
to something very specific, that is a boycott,
and the exclusion, the de facto exclusion that
might result from this -- this is very
speculative -- wouldn't be what she's talking
about.
Basically, what this letter says is that
Senator Simon's exemption from the antitrust
laws was entirely unnecessary, that if there
was an agreement on guidelines, that agreement,
by itself, would raise no antitrust problem.
Now, that's the Justice Department
position. That's very important because the
other case was brought by the Justice
40
Department. That's one reason the court took
it very seriously. The Justice Department has
a very strong position here.
There's only one sentence that I think is
any concern at all in that letter, and that's
the sentence that says there's a difference
between agreements on a code and an effort to
enforce its provisions. The enforcement
action, she leaves a little bit of an opening
there, and that's the sentence maybe that is
worth underlining. But I really think this is
not worth worrying about very much, the
antitrust.
CHAIRMAN ORNSTEIN: Yeah, we
don't want to take anymore time on getting into
the specifics of antitrust other than to make
it clear that the reasons that caused the
original code to be withdrawn, we should be
able to deal with, handle it here, and we do
have some questions about enforcement that
we're going to have to be sensitive to, and we
discussed that.
MR. GOODMON: I think we should
mention at least twice in the last few months,
Congress has suggested that if the industry
41
will adopt a voluntary code, they, Congress,
will help us with the antitrust and have
suggested we do it. We might have problems,
but I think we also can get some help.
CHAIRMAN ORNSTEIN: We needed to
be sensitive to this, and we need to in the
presentation of our recommendations, but I
don't think we need to spend a lot of our
precious time on this.
MR. BENTON: Norm, as a final
point of clarification, as I understand it, the
antitrust really applied entirely to the
advertising part of the code and not to the
programming part of the code.
CHAIRMAN ORNSTEIN: Yes.
MR. BENTON: The program part,
that's not -- and this is not an issue, the
antitrust, as I understand it.
CHAIRMAN ORNSTEIN: We want to
be sure that we don't raise red flags. We also
want to be sure that we cover our bases, and we
will do that.
Well, what we have here and what Cass has
done, and I hope will be delivered to you all
momentarily, we have a set of -- let me just go
42
over these quickly and you can supplement -- a
set of general principles and a rationale for a
code, most of which was taken from the original
code, basically the broadcasters of public
trustees, that there are some obligations that
have been imposed on broadcasters, but that the
government has generally restrained itself from
going further because of a belief that
broadcasters are doing themselves, voluntarily,
what should be done, that most broadcasters do
take their obligations seriously going beyond
the requirements of law, and they do offer
public service announcements, provide
educational programming for children, offer
community services, cover substantive issues in
a serious way, avoid exploitation,
sensationalism and attend to important issues,
public debates and elections, and the purpose
of the code is to reflect an explicit and
voluntary commitment to certain basic
principles, to ensure that broadcasters
generally act as public trustees and are not
penalized in the marketplace for doing so, and
it explains why we need a code.
Then we move on to some of the substantive
43
areas.
MS. STRAUSS: Norm, I think that
she has the copies. It would be helpful to
people.
CHAIRMAN ORNSTEIN: Yes.
MS. STRAUSS: Can I just ask a
quick question while they're being passed out?
I'm a little confused about the
relationship between the codes and the public
interest obligations that we arrive at, and
here's the source of my confusion.
It seems to me that the code is going to
be above and beyond the obligations that we
determined, and therefore, it would seem to
make sense to determine those obligations
first.
I understand that you just want to go over
the code, but it doesn't make much sense, it
seems to me, to determine what the code is
since that's a voluntary effort because I know
that, for one, I'm not sure what I want to
agree on within the code, and I don't want to
say it has to be in the code if it's already in
the obligations, but I do have to worry about
it at least getting into the code if it's not
44
in the obligations.
CHAIRMAN ORNSTEIN: Well, we
don't have to agree on every -- we're not going
to vote on line items in a code, Karen.
MS. STRAUSS: No, I understand.
CHAIRMAN ORNSTEIN: I would
argue, even if it's an obligation, an
obligation can be given and taken away, and
whether it's an obligation or not doesn't mean
it's redundant to have it in a voluntary Code
of Conduct.
But for our purposes of discussion here,
since this is an area, if we start to discuss
the areas where we have disagreements or
potentially deep disagreements and leave for
the end getting to the specifics of the areas
where we have some agreement, we will probably
never get to those.
MS. STRAUSS: I was hoping to
discuss the areas where we had agreement first
within the obligations. Is that--
CHAIRMAN ORNSTEIN: I'll tell
you what. If you have questions about the code
that you want to raise after we've discussed
those, then we will come back to them, but I
45
think we can safely go through most of the
general principles here and see where we
highlight disagreements.
And if you would turn, basically, I think
to page -- page 12 had the general principles.
The first 10 pages of this are a very nice
discussion of the antitrust issues. 11 gives
the overall code provisions, and then 12 was
that first discussion. I'm looking at the --
CHAIRMAN MOONVES: Oh, got it.
CHAIRMAN ORNSTEIN: Look at the
top, the faxed pages. So turn to page 13 of
the 20 or page 12 at the bottom of your page,
and that's the first substantive discussion.
MS. CHARREN: Page 12 at the
bottom?
MR. SUNSTEIN: Most people are
looking at page 12 at the bottom.
CHAIRMAN ORNSTEIN: 12 at the
bottom. So what we had a couple of pages
earlier was the outline on page 7 at the
bottom, the general principles and rationale,
which I think we've basically covered. It's
more or less what was there before, and I think
it's largely boilerplate, and we can talk about
46
responsibilities towards children.
MR. SUNSTEIN: This is very much
like the old provision. Maybe number 4 is the
one we might focus on, which is about
educational programming for kids, including a
minimum of or a reasonable number of hours of.
The rest is, I think, entirely vacuous because
you can imagine what an egregious violation
would look like.
MS. CHARREN: For all the help
that is. Peggy Charren. I always was able to
imagine what an egregious violation would look
like. For example, I think it's egregious to
promote violent programming in programming that
you want children to watch, like sports
programming, so that the minute or half minute
of violent content of a program that isn't as
violent as that promo because, after all,
that's contexted in the movie but there isn't
in the promo. It would be nice if it that
didn't show up in sports programming.
I could talk myself blue in the face for
100 years and I couldn't do anything about
that. So that my only concern is that, as a
body, we don't look at this and say, we have
47
dealt with the need to take care of children on
television. I think it's perfectly reasonable
to have this in the code. I used to use it in
testimony in Washington. I would read what the
industry said about what it should be doing,
and I'd read it, and then I would take it
apart. I'd make fun of it. I would say, if
they did it. It's sort of an excuse for people
like me to have something to talk about it.
But let's understand that this doesn't
then qualify as this committee's way of dealing
with the needs to serve children. It does not
bother me that this would be in a
recommendation for broadcasters anymore than it
bothered me that it was there. It only
bothered me when the NAB used it to prove that
they were taking care of kids.
MR. RUIZ: Peggy, what is the
age group when you say children?
MS. CHARREN: The industry has
made it 2 to 17 by working on the legislation,
to deal with 2 to 17. My feeling was it sort
of stopped at 15 because if you call any
16-year-old a child, they'd have a nervous
breakdown.
48
On the other hand, I am willing to go to
17, which NBC says it is serving. It would be
nice if they did some election-related
programming so kids might vote when they got to
be 18, but I don't mind that. That's the
number.
For advertising purposes in the law, it's
2 to 12. There's two different numbers. They
can't decide which children are in that law,
but that's the way it is.
MS. STRAUSS: I think I didn't
articulate myself well enough before, but this
is exactly what I was getting at.
What Peggy, I think, is saying is that
there are principles in here that we can all
live with, but the question is, is this going
to be the be-all and end-all of what we
require, and that's why I think it's fine to go
through it now, but I think that the only way
that we can agree on what's in the paper is to
first agree on what are the obligations that we
want to require.
CHAIRMAN ORNSTEIN: I think you
can discuss the principles that we can all
agree on and recognize that, for most of the
49
members, a code may be a necessary but not
sufficient recommendation to make. We're not
suggesting this is the only thing that we're
doing, so --
MS. CHARREN: These are very
content-sensitive rules as they're put here. I
mean, violent programming, you know, a civil
rights drama is violent, and we hope that
they're not going to do in a civil rights drama
in the interest of children, especially if it's
a children's program, which can also be violent
if it's a good children's program.
But there's nothing in here about
advertising, and one of the major programming
problems of programming for children is in the
content of the advertising, and we could
discuss at some point in this endeavor whether
we can talk about the content of the
advertising in terms of where it appears, when
it appears.
And I would ask Cass, would that get us in
too close to a constitutional problem without
making the rule of you can't do it, just
suggest? After all, this is a suggestion.
Maybe we can suggest that you don't promote
50
their worst programs directly to children.
MR. SUNSTEIN: No constitutional
problem but a possible antitrust problem. But
we shouldn't be terrified of the word possible
antitrust problem from my -- if you think about
it.
CHAIRMAN ORNSTEIN: We can also
recognize that, basically, we're not -- any
voluntary code is going to be put together by
the broadcasters. All we can do is recommend
language, and the greater the unanimity we have
or consensus we have in our committee,
presumably more impact it has, but we have to
start with that premise, that nobody is going
to take this and adopt it in toto.
MS. CHARREN: For example, when
it says three hours, which is what's in the law
now, it also has limits on advertising in the
law, which are very high, but you might want to
put them in again because the FCC is already
finding stations that go over it. That can't
really be a problem.
MS. SOHN: You can make a broad
statement about how children can't really
express themselves in the marketplace and
51
broadcasters should be careful not to, you
know, over --
MS. CHARREN: We do that for
programming.
MS. SOHN: The other thing that
I saw was missing, also, was we were talking
about different ages. There isn't anything
about serving children of different ages. I
mean, I just skimmed it. Did I miss
something?
Because if all your shows are directed
towards kids between the age of 4 and 7, then
what about everybody else? You might want to
put some language in there about certain
different age settings.
MR. RUIZ: I would answer that,
you know, some of the demographics. You may
have areas where they're largely a Native
American population, and the programming --
MS. CHARREN: Could you talk a
little louder?
MR. RUIZ: You may have areas of
large Native American, Asian, Latino
populations, yet the program is not reflective
of that society. Are they seeing themselves?
52
Are they seeing their world in the
programming? There's no mention of that.
MS. CHARREN: That diversity
covers a lot of various public interest
concepts.
CHAIRMAN ORNSTEIN: Any other
suggestions in this part? I think maybe what
we can do here is go over that and subsequently
we can embellish or change.
MR. SUNSTEIN: This is helpful.
There are three new provisions we can think
about.
CHAIRMAN ORNSTEIN: Maybe
briefly discuss -- let's move on to the next
one, public elections.
MR. SUNSTEIN: Yeah, what this
tried to do is a couple of things. One is
emphasize the role of television in promoting
democraticals, another is stressing the value
of coverage of federal, state and local
elections, as well as initiatives and
referendums, and a third is to have some
language about the value of having covered the
substantive oriented issues rather than sound
byte issues and horse race issues. I'm
53
thinking of the Belmont stakes, tragic loss.
And the last -- the last is to say
something, and this is Section 5, about the
need for candidate-centered discourse, not
defined, in the evenings.
Now, this may be too specific. It would
be interesting to get people's reactions to all
of this.
MS. STRAUSS: I have a question.
CHAIRMAN ORNSTEIN: Yes, Karen.
MS. STRAUSS: I had a question
about Number 4. You say that the station would
focus on races and candidates the station
believes is important and deserving of
attention by its viewers.
Can you give anymore thoughts about how
the station would determine that and whether
you could add something about making such
determinations based on ascertainment of
community needs for information in certain
elections?
MR. DUHAMEL: You're going to
overwhelm the station in detail. The stations
know -- the news people know where the interest
is. In other words, there's occasions we've
54
had debates on attorney general candidates.
Typically we don't, but when you have an
important attorney general's race and it looks
like there's interest in it, we will cover it.
Otherwise, some of those are just routine, and
nothing happens.
You can't get into -- if you really want
to run surveys, the general public, the general
public does not understand -- not understand --
the general public does not want -- I've never
seen anything. They vote by viewing, and I've
never seen anything that says they want to have
half hours of discourse with candidates. I
think a station that ran half hours, the public
would vote by leaving. They would go alternate
places.
MS. STRAUSS: I'd be interested
in hearing some other views on this, whether
you feel -- I mean, this is not my particular
area of expertise. This jumped out at me, that
the station decides. So other people around
the table that have had more background in
this, I'd be curious to know your views.
MS. SOHN: This is Gigi. I'm not
trouble by --
55
MS. SCOTT: Hello?
CHAIRMAN ORNSTEIN: Shelby?
MS. SCOTT: Yeah, I can barely
hear anything.
CHAIRMAN ORNSTEIN: Because
you're too far away, Shelby.
MS. SOHN: We can hear you,
Shelby.
MS. SCOTT: Well, that's great,
but I can't hear a thing. I hear mumbling like
in the background.
CHAIRMAN ORNSTEIN: Well, we'll
try and speak up and speak right into the
microphones.
MS. SCOTT: Thank you.
MS. SOHN: Shelby, this is
Gigi.
I'm not that troubled by allowing
broadcasters to use their discretion on what
races are important. What I am troubled by are
sort of absolute blanket bans on either
covering or even selling time to candidates.
Now, we've seen this, I think -- did you,
Charles, attach an article to your issues and
consensus memorandum about how basically some
56
of the California stations are absolutely
refusing to sell time to down-ticket
candidates? That's something of great
concern.
So reasonable -- the point I was going to
make, Cass, is that reasonable access has to
mean that you just can't -- the law says, this
is CBS versus FCC certainly says this, but you
can't have blanket policies refusing to even
sell time. I think broadcasters should have a
firm obligation to cover these races. You
can't just say we're only going to cover the
governor's race, and that's what's been going
on in California.
But generally, Karen, I'm comfortable, you
know, within the grander scheme of ensuring
that, you know, local and important local races
are covered. Why should a broadcaster have to
cover the race for the dogcatcher where the guy
is going unopposed or he's going up against a
crank candidate.
CHAIRMAN ORNSTEIN: Well, I
guess the question there, Gigi, would be
whether that sixth provision, which is the
station should provide reasonable access, is
57
enough to cover those concerns. The term
reasonable access is, in fact, one that comes
out of the law, is it not?
MS. SOHN: Yeah, and in fact,
the way the law has been interpreted, it's been
interpreted -- again, CBS versus FCC -- that a
broadcaster cannot make a blanket policy of
refusing to sell. Remember, reasonable access
under 312 (A)(7) is only for federal
candidates, not for state.
CHAIRMAN ORNSTEIN: The use of
the term reasonable access here ought to
take that into account, I would think.
MS. SOHN: I'd make it more
specific. I would say this means that
broadcasters cannot have a right to refuse --
MR. LA CAMERA: That's
different. Are you mandating what item -- this
is Paul La Camera -- mandate that television
stations provide access to local and state
candidates, news access?
MS. SCOTT: I hate to interrupt,
but am I still hooked in?
MS. STRAUSS: You're hooked in.
MS. SCOTT: You cut out
58
completely. I'm hearing static.
MR. LA CAMERA: Right now we're
obligated, obviously, with federal candidates
but we'll have a similar obligation with local
and state candidates.
MS. SOHN: Yeah, that's what 6
says, that stations should provide reasonable
access to candidates of state and local
offices, as well as to federal candidates, and
I'm all for that, but --
MR. LA CAMERA: I'm sorry, Gigi,
are you talking about news public peer
coverage, or are you talking about access in
terms of purchasing commercial time?
CHAIRMAN ORNSTEIN: Yes.
MS. SOHN: Well, you have to ask
Cass. He wrote it. I'm assuming that he means
in terms of selling time.
MR. SUNSTEIN: I wrote it, and I
have no idea what it means.
CHAIRMAN ORNSTEIN: I think the
reference here is, in the context of what's
here, is selling time, and that is a response
to what has become a practice that's occurred
in a number of areas.
59
MR. LA CAMERA: I know it
happened in the Washington, D.C. market.
CHAIRMAN ORNSTEIN: Not only the
Washington, D.C. market, but it happened some
in California, and that is, as Gigi said, it's
not just a selective refusal; we don't have the
time, but we will accept no time even for those
who have cash in hand for these races. And, of
course, in California, that also included no
news coverage of the races either.
So I think, you know, this is an attempt
through a code to get at the need for some
sensitivity to --
MR. SUNSTEIN: One question is
should we clarify it to say that, and another
question is so clarify that people like it. I
consider myself agnostic right now, but --
MR. LA CAMERA: I'm fine on the
issue of the commercial time. I mean, I'm
always uncomfortable when we start dictating
journalistic policy.
MR. CRUZ: That was covering
elections.
MR. GLASER: That's what I was
saying to Karen. I'm fine with the broadcaster
60
choosing what important races to cover. What
I'm not fine with is a blanket policy that we
will not sell time to candidates. That's
what's been going on.
MR. LA CAMERA: I have no
problem with that. Just in item 5, just for
the sake of reality, 6:00 p.m. to 11:00 p.m.,
11:30 p.m.. Make that 11:35 p.m., which is the
reality of late night local news.
MR. DUHAMEL: In the mountains,
a lot of times our prime local newscasts is
5:30, and we have a higher proportion of adults
watching the 5:30 than we do --
MR. LA CAMERA: 5 o'clock p.m.
MR. SUNSTEIN: Should it be 5:00
to 11:30?
MR. CRUZ: California starts in
at 4:00 in the newscasts. If you want to
blanket the country, let's go with that.
CHAIRMAN ORNSTEIN: If you want
the evening hours here, 5:00 is okay. Charles,
Charles Benton?
MR. BENTON: Charles Benton.
Cass, I'm just as the original. The old NAB
code broke itself into program standards and
61
advertising standards. It seems to me that,
especially in this elections area, you might --
there might be some refinement in not just
lumping everything in together, but of thinking
about it in terms of program standards and
advertising standards.
Clearly, in the program area, the notion
of diverse views and conflict is the -- and
avoiding propaganda or avoiding unbalanced
coverage of competing candidates is kind of a
part of it.
And in terms of the advertising time,
there's -- there were a lot of comments in our
various papers about no less than one minute of
spots are given and no less than one minute,
and the candidate has got to appear 75 percent
of the time, issues like that.
I'm not -- I'm not enough of an expert to
dictate precisely what those things ought to
be, but the general point has been to try to
move away from the manipulation of advertising,
especially as done by outside forces and having
the candidate be more directly -- if free time
is to be given and all that free time were
given --
62
CHAIRMAN MOONVES: We're not
dealing with free time here.
MR. BENTON: All right.
CHAIRMAN MOONVES: And may I add
that I think this is a very good document. The
more we get bogged down with tiny specifics,
the harder it will be to draft something that
we will get a consensus on.
I think there are a lot of very good
points in here, and I know I may feel
differently than some of you, but the
generalism of it is a very positive thing.
MR. BENTON: I hear you, but I
think still thinking it through, both from the
standpoint of programming standards and the
commercial standards would be very good.
CHAIRMAN ORNSTEIN: Some of that
is in the next section as well, which we can
turn to with news and public events, which also
has relevance for elections.
How much of this, Cass, was in the --
basically in the original?
MR. SUNSTEIN: Most of this was
in the original. I think the third sentence
under 2, I think the word "gossip" I added.
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CHAIRMAN ORNSTEIN: Well, that
would really test whether there's any meaning
to a code.
MR. SUNSTEIN: It should be
undo.
MS. CHARREN: Might do in the
news altogether.
CHAIRMAN ORNSTEIN: Actually, if
we took all the gossip out, we'd leave enough
time in the newscast for whatever free time we
wanted to provide for candidates.
CHAIRMAN MOONVES: How about the
stories of crime or sex, or take out crime, sex
and gossip. We would have had a hard time
covering the government the last few months,
wouldn't we, if you adhere to that.
CHAIRMAN ORNSTEIN: It's mostly
gossip about government.
MS. CHARREN: A lot of blank
screens.
CHAIRMAN ORNSTEIN: Maybe we
should take a minute to just read this, but
most of it is, I think as Cass suggested, was
in the original.
MR. SUNSTEIN: I added 9. 9 is
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the only one I added, and the word gossip.
MR. BENTON: Is there an 8?
MR. SUNSTEIN: Yes, but it's
mysterious.
MS. CHARREN: There's something
about saying undo the simple versus complex
issues. Something I feel I need a lot of the
time is for a very simple discussion of a
complex issue so that I can manage to
understand it, and I think that this could be
misconstrued somehow. I mean, I know what it
means, but --
MR. CRUMP: I have to agree with
you because, to me, the purpose of a newscast
is to explain to the general public what's
going on when they're getting all the
gobbledygook that are being putting out, many
times, by the constituents themselves.
MS. CHARREN: I think this can
be misconstrued.
MR. SUNSTEIN: What would be
better?
MS. CHARREN: I don't know.
MR. SUNSTEIN: Maybe we could
just delete the first phrase, "The station
65
should make an effort to devote sufficient time
to produce --"
MS. SOHN: That's a good idea,
yeah.
MS. CHARREN: That says it,
right.
MR. DUHAMEL: I think you're
right, sure.
CHAIRMAN ORNSTEIN: Let's move
on to community responsibility then, and we
could move through some of the substantive
stuff here really quickly and then turn to what
is a more contentious, I suspect, or at least a
more difficult question, and that is the
question of how you revise and enforce. Maybe
the responsibility was also largely taken from
the previous code.
MS. CHARREN: I like this. Is
this new?
MR. SUNSTEIN: A lot of it's
new. It's from one of our colleagues.
MS. CHARREN: That's nice.
CHAIRMAN ORNSTEIN: Yeah, Jim?
MR. YEE: Jim Yee. Luis brought
it up again, but also, since this code, should
66
we also reflect the changes of the community in
the issue of how do you address the fact about
issue of diversity and makeup? I know it's
sort of a static term these days. I'm just
wondering how can we reflect the changes? I'm
looking to you, Cass, for that.
And also, there was discussion last time,
predominantly about the PSA about being such a
major centerpiece of the commercial
broadcasters when we had not talked about local
programming or had it represented in the
language as much as it should be. Again,
that's an area I hope could be addressed.
MR. SUNSTEIN: I think that's an
interesting idea, a provision that says the
broadcaster shall attend to the diverse
demographic segments of the community and
provide a reasonable service for all viewers.
CHAIRMAN ORNSTEIN: I think that
would be a very wise thing for us.
MR. LA CAMERA: I think the
others addition there would be an emphasis on
local groups that's in other documents and not
necessarily on this page.
MS. CHARREN: Is this a good
67
place to talk about the fact that in public
service speech, particularly, with diverse
populations, the use of the same way we do the
captioning can help in terms of language, for
example. It's very important that everybody
vote, and if you have a language problem, where
do we -- there's an opportunity there for
broadcasters to make use of technology in that
area to help that process a little more. I
don't know where that belongs, but it just
occurred to me when somebody said something.
MS. STRAUSS: Well, I'd like to
respond. I'm kind of sitting here again
thinking that most of the captioning rules do
not cover most of the principles in here.
Again, the captioning rules, right now, don't
require captioning on political debates, PSAs,
local news, or at least not real-time
captioning.
So that was part of my concern, because
the question is where do I go for broke? Do I
go for broke on here on the code of the
voluntary code or --
CHAIRMAN ORNSTEIN: Again, I
don't think they're mutually exclusive.
68
MS. STRAUSS: One possibility is
in general principles and rationale to have
this overriding statement that indicates the
need for disability access where it's not an
undue burden, which would be consistent with
all of the federal laws on that.
MS. CHARREN: And in talking
about captioning, we could add language there,
which is a way of dealing with people who can't
speak English.
MR. DUHAMEL: You said where
it's not an undue burden. That's an
important --
MS. STRAUSS: Oh, yeah, I have
no problem with that. That's been the law of
the land for quite some time, the undue burden.
MR. DUHAMEL: In South Dakota,
it was going to cost South Dakota broadcasters
about a billion dollars a year.
MS. STRAUSS: No, it's
reasonable to have a defense where it's going
to be a financial hardship, and that's always
been incorporated in the Rehabilitation Act of
1973, Americans with Disabilities Act, and now
the captioning provisions of the
69
Telecommunications Act.
But I do think it would be nice to have
something in here that recognizes disability
access since that was not on the radar screen
when the original code was created.
MR. SUNSTEIN: There are two
ways to do it offhand. One is to have it in
the general principles, another is to have it
under some of the provisions.
MS. STRAUSS: Right. I suppose
that my preference would be to specifically
have it under the individual provisions,
especially the election provisions, the news
and public events and the community
responsibility.
MS. CHARREN: Peggy Charren. I
think it's also important because we're talking
about the future here. This isn't supposed to
be a rewrite of the code for broadcasting as we
know it now. It's for digital television,
right? And these kind of opportunities are
going to be more easier to make it happen in a
digital universe.
CHAIRMAN ORNSTEIN: It seems to
me a provision that basically says that
70
broadcasters will be sensitive to the diverse
elements of a local community to make sure that
all of these provisions of news and programming
otherwise will, as much as possible, without
undue expense, be sensitive to the needs of the
disability community or other groups, including
through language, to meet what would be
perfectly --
MR. SUNSTEIN: Let me think
about whether that should be under general
principles or under the specifics, and we can
certainly --
CHAIRMAN MOONVES: Peggy just
brought up a very interesting point in that she
said this is for digital television. Digital
television, we're looking into the future. Is
this a Code of Conduct for today, for right
now? Are we dealing with analog and as we move
forward? I think we have to specify if that
is, in fact, the intent of what we're doing
here.
CHAIRMAN ORNSTEIN: One element
of that, Les, is that a little further down
where we're talking about revisions and
enforcement authority, we don't need to get too
71
far into it here, but there's a provision to
basically go back and reconsider the code
periodically as digital television changes.
CHAIRMAN MOONVES: Well, Norm,
there are certainly things that we're obviously
going to get into a little bit later on about
HDTV and multiplexing and talking about the
eventuality of that world, what would happen if
there are three channels or four channels or
five channels, et cetera, et cetera.
So I think it's very important on every
issue to distinguish whether we are talking
about what is going to go on with broadcasting
today. Are we including any other people, such
as cable? We really have to distinguish
between what is happening with the world and,
when appropriate, if we're looking down the
road. Charles?
MR. BENTON: Yes, Charles
Benton. I think Les has made a very good
point. What was sent out to us in preparation
of this meeting was this NAB code, which I
believe is over 20 years old. We were handed
out, at the last meeting in mid April, a
four-page quote "statement of principles" of 3
72
pages -- 3 and one-third pages statement of
principles, and clearly, and given the
antitrust blanket that NAB has apparently
applied to, not only advertising but
programming standards, maybe this has fell
into, if not disuse, much less use now, and so
the move from analog to digital does give the
profession and the association a leadership
opportunity here to rethink through the code
and how it should apply today and in the future
with technology.
So I think it's a great opportunity for
the NAB to reassert its leadership role in
this, which historically, as I understand it
from talking to some of the broadcasters here
last night in particular, it was very important
in the life of broadcasters 20 years ago.
Obviously, this is fallen. There are a
lot of changes many of us don't understand or
don't know, but the move from analog to digital
does give it an enormous opportunity for
reasserting leadership by the profession and by
the association here on the standards to help
reposition broadcasting, vis-a-vis the
competition of cable and the tel cos.
73
So therefore, this is a real opportunity,
it seems to me, and shouldn't be looked upon as
a threat or thou shalts, et cetera. There's a
real opportunity for leadership.
CHAIRMAN ORNSTEIN: We do need,
I think as Les is suggesting, to be sensitive
to what are principles that apply no matter
what the electronic era brings us, and many of
them here clearly do, and where we begin to get
into specifics and specific standards and
quantification, we clearly need to be very
sensitive to the reality of what applies today
may not make sense a few years down the road.
And I think since our core responsibility
is digital television broadcasters, we can,
obviously, recommend strongly a code for the
NAB here in a separate spot assuming that we
can all reach agreement on many of these
issues.
It is utterly appropriate for us, it seems
to me, to recommend that some standards apply
in other areas as we move into the digital
age. But it also means, Les, that we need to
be sensitive to what we, I hope, will get to in
a few minutes, which is the question of how you
74
have an ongoing process of altering the code to
take into account these changing realities.
So let's turn to controversial public
issues, and I think we probably can work
through most of these relatively quickly.
MS. SOHN: Norm, can I just -- I
like this language very much, though one thing
that's missing.
MS. CHARREN: Which language?
MS. SOHN: The controversial
public issues, except local is missing.
There's not one mention of local.
And the thing I am a little bit concerned
about as I look through community
responsibility and controversial public issues
is some sort of statement about covering local
communities, underserved communities. Jose and
Jim did mention that. I don't know exactly
where that would fall in, whether it would fall
in under E or F or somewhere else but --
CHAIRMAN ORNSTEIN: There's
probably no problem with mentioning sensitive
to local concerns in each of these areas. You
can add a clause here that basically says alter
the life or welfare of a substantial segment of
75
the public, including the sensitivity to those
issues that are specific to a local community,
or something of that sort.
MS. CHARREN: I'd like to add
something as wispy as that also, to the
children's page, because serving the particular
needs of children in the community is different
than national programming for children, and
very productive.
MR. SUNSTEIN: We can do that.
MS. SOHN: I just wanted to add
one other thing on a technical thing. You
could add something either to Section A, or
again, to any of these saying how the
broadcasters should deploy new technology to
ensure access, you know, a broad statement
about employment of digital television to sort
of A, B, C. Just a thought.
CHAIRMAN ORNSTEIN: Okay. Let's
move on to special program standards, crime,
violence.
MR. SUNSTEIN: There's actually
nothing here on sexual materials except sexual
violence, and I just noticed that the NAB's
current principles has some material on
76
sexually-oriented material. It isn't bad.
CHAIRMAN ORNSTEIN: Then maybe
if that's in the NAB's current material --
MS. CHARREN: Read it.
MR. SUNSTEIN: Okay. "Obscenity
is not constitutional for speech. It is, at
all times, unacceptable for broadcasts."
That's the least controversial. "Where
significant child audiences can be expected,
particular care should be exercised when
addressing sexual themes. All programming
decisions should take into account current
federal requirements limiting the broadcast of
indecent matter. Creativity and diversity in
programming that deals with human sexuality
should be encouraged. Programming that purely
panders morbid interests should be avoided. In
evaluating programming dealing with human
sexuality, broadcasters should consider the
composition and expectations of the likely
audience and the context."
All that's good. We might want to have a
separate provision on sexual violence,
something about special care with respect to
sexual violence.
77
MS. CHARREN: That's a good
idea.
MR. SUNSTEIN: I did add,
already, a section in the last sentence of 2.
MS. CHARREN: I think that's
very good. Peggy Charren.
I once asked a big-deal psychiatrist who
was at Yale, what is the most -- the worst
thing that children can see on television,
because a lot of what we talk about is okay if
we use it to educate. What's the worst thing
they can see? And his answer was, sex with
violence.
CHAIRMAN ORNSTEIN: And gossip
and lying.
MR. SUNSTEIN: We'll add
something along those lines. The trick here is
that, you know, you wanted to say something
that gives guidelines but not something that
restricts diverse views. So there's this last
sentence.
MR. RUIZ: How much of this will
apply to cable?
CHAIRMAN ORNSTEIN: How much of
it will apply to cable is the question, and the
78
answer, at least on the surface, is this would
be a code created by the NAB for broadcasters.
There is nothing that I can see that would
prevent us from recommending that, among other
things, the National Cable Television
Association adopt a comparable code and that
whatever association exists for satellite
broadcasters also adopt a code and for strongly
recommending that that occur.
MR. RUIZ: You mentioned
gambling, point 3 here. They now have on cable
handicappers for ball games with 900 numbers
that diagnose the game and then have you call
them for -- I don't know how much they charge
and stuff like that, and a lot of kids are
watching this, high school and college kids,
and I haven't seen it on the commercial
broadcast, but I see it on cable, and I think
they're buying the time.
CHAIRMAN ORNSTEIN: Well, again,
we have no compunction about strongly
recommending that, if not the same code, a very
comparable code that may have some particular
sensitivity to those issues.
MR. MINOW: Newt Minow. I'd
79
emphatically endorse that. I think it's unfair
now to have the cable industry, which is
getting more than half the audience in prime
time, not subject to the same rules, standards
of broadcasters.
MR. SUNSTEIN: Barley Diller has
said exactly the same thing.
MS. SOHN: But understand, I
don't necessarily disagree with you, that there
is very little local -- local programming on
cable and non --
MR. MINOW: That's a
different --
MS. SOHN: It is if you're
talking about -- if you're talking about
requirements to do local programming. I'm just
saying -- I'm not disagreeing with you, Newt.
I'm just saying you have to be sensitive. You
can't really impose local requirements on DBS.
They don't do any local programming. It's all
national.
MR. SUNSTEIN: We can write it
up in such a way to apply those provisions that
make sense to apply to cable.
MS. CHARREN: Yes, because a
80
diversity provision that is appropriate for
somebody legally mandated to serve the public
interests is different than mandating that kind
of diversity on a channel that is just a
cartoon channel or that is -- you know,
channels are different for cable.
CHAIRMAN ORNSTEIN: Let us
recognize that there are, of course, public
interest obligations for cable. The way
they've been defined is through this set-aside
of channel space which, presumably, is
sensitive to local programming which, for the
most part, has not been.
And I frankly -- although our mandate is,
one again, broadcasters, making a strong
suggestion that perhaps the local content that
comes through that channel space be
strengthened and changed and made meaningful
certainly ought to be within our purview to
recommend as well. So we can hit the local
issues.
MR. MINOW: The viewer has no
understanding or no care about whether he sees
a program on cable or over the air. It makes
no difference to the viewer, and it's wrong for
81
us to separate those two things. Put yourself
in the viewer's position.
CHAIRMAN MOONVES: Especially
the younger viewer who has grown up with 50
channels in his house. Channel 33 is no
different than Channel 2 to the average kid.
MR. BENTON: Maybe this is a
question. Charles Benton.
Since our commission mandate is the public
interest obligations of digital television
broadcasters, how can we structurally address
this very important issue that has been raised
by several people? What do you suggest is the
structural approach on this?
CHAIRMAN ORNSTEIN: Some of this
we will have to work out in the process of
drafting a report, but it seems to me that,
among other things, we are looking at the
public interest obligations of digital
television broadcasters, which means that we're
trying to look at public interest obligations
in a new era, and in the process of doing that,
since every aspect of the use of the spectrum
is going to change.
And what is likely to happen is that a
82
continuation and enhancement of what Les just
suggested; namely, a blurring of the lines here
for viewers, at least, that -- and since we are
also making recommendations that go formally to
the vice president, but which are clearly going
to include recommendations for action by
Congress or by the FCC, as well as by the
broadcasters, that's suggesting, for example,
Congress revisit the question of the set-aside
space for local programming and community needs
by cable to take into account some of these
considerations. I don't see why we can't make
that suggestion or even a suggestion or report
to the vice president that the strong
recommendation be made to the cable industry to
get their own house in order through voluntary
means the same way that broadcasters are.
Where we include it may be a question, but
how we include it should be a fairly easy thing
to do.
MR. BENTON: Thank you. Can I
raise one more question?
Most of these issues under the special
program standards are dealing with the extremes
and aberrational points, and they seem fairly
83
self-evident.
I want to come back to Les's point about
the application of these standards and just say
a word about the treatment of news and public
affairs.
A number of foundations recently have been
studying local news in particular, and the
facts of the analysis are really depressing.
39 percent of local news is crime, most of it
violent crime. If it bleeds, it leads. 45
percent is involved in sports, in weather and
commercials. That leaves 15 percent for
everything else.
Now, maybe Cass, in the treatment of news
and public affairs, one can say something about
the mix of content to try to see if there can't
be some breaking of that pattern that is, I
think, causing increasing dissatisfaction on
the part of the public. You know, it's the
body count, we're tired of the body count. The
competition of the local level is more
violence.
CHAIRMAN MOONVES: You're
getting very dangerous.
MR. CRUMP: This is Harold
84
Crump, if I might jump in here for just a
moment.
Let's not forget that we have, in every
market, usually a number of stations who are
competing for audience at the same time with
newscasts, and if you don't believe that the
reason for the amount of coverage that is given
to the various stories has to do with, one,
what we think the public needs to know about,
and two, what the public will accept itself,
and therefore, watch this station, then the
assumption, I believe, is incorrect.
And we have -- we go through cycles. If
you've been in the business a long time, as I
have, you see cycles where various types of
newscasts come and go, and they generally come
and go because of the interests of the viewer
itself. He votes every day when he turns his
set to one channel or another. And you want to
put on a quality newscast, but if no one sees
it, then you're saying, gee, I need to wiggle
it here a little, and it's an awfully hard
call.
And this is where we get back, I think,
into trying to say -- dictate what the program
85
content would be, and that's going to be tough
because that's what we should not be doing.
MS. CHARREN: I think that's
right. If we come out with micromanaging the
news, we'll get ourselves in big trouble. But
that's what I find, if we're talking now about
the code, the code says it. The first one is
news schedules should be substantive and well
balanced and devote substantial attention, and
it's there. It doesn't say 20 percent, and I
don't think it can.
And I think that we have to be careful on
that score. Those of us who, after the fact,
talk, and some people are more likely to talk
about news than others of us, can keep making
that point, and few can keep going to those
meetings, and -- but it does say --
MR. BENTON: It's the same gap
between the reality of what's on the air and
what's in the code, and Peggy was talking about
it earlier.
MR. CRUMP: There's another gap
here, too, that we're not mentioning, and that
is let's not forget that 20 years ago, most
television stations that were in the news
86
business had either one or two half-hour
programs per day. And now when you look at the
expansion that we have with the early morning
hours, with the expansions in the afternoon,
just as Frank was bringing up in really large
markets, the news starts at 4 o'clock in the
afternoon, what you have -- the percentages may
be the same, but the total amount of time
that's devoted to these -- all of these types
of stories is totally different and much, much
enlarged.
CHAIRMAN ORNSTEIN: We take it,
I think, as far as one can reasonably take a
code that talks about what's appropriate.
MR. CRUZ: Yeah, I would agree
with that also. It's difficult to get into the
realm of dictating newscasts and so forth. I
would agree to take that kind of approach.
One of the other factors that has played
into this is the evolution of the industry
itself. Not too many years ago, you didn't
have cameras like this that were capable of
going out into the field and covering stories.
One of the concerns, I guess that you have
as a news director and a producer of a
87
newscast, it seems odd that you will spend an
inordinate amount of time covering a fire,
really of no major consequence, but you can
spend a lot of time on air because the public
supposedly is interested in that and tuning
into that, yet the next day, it's only a minor
paragraph on page 28 of the Los Angeles Times.
MR. CRUMP: What you see in the
newspaper is yesterday's news. We put it on
today. Thank you for the point.
MR. CRUZ: It's the length of
time.
And I guess the other concern that really
goes to some of the sensitivity of the coverage
of the news, for example, in Los Angeles,
there's been an inordinate amount of coverage
on high-speed automobile chases. A highway
patrolman recently said that they've been going
on for a long time. It's only you folks that
have gotten interested lately with helicopters
and so forth.
It came, all of that, to a screeching halt
recently when the police thought, the highway
patrol thought that they were after another
high-speed chase and a young man pulled over on
88
the Harbor Freeway in Los Angeles and blew his
head off, and it was covered. So that's the
kind of area of concern that we have to be
very, very sensitive to, and I think we have to
make sure the code does cover it in that
context.
MR. CRUMP: But you know, you
make a good point there, Frank, in that as our
technology has changed, being totally candid,
we are changing with it, but it's an
educational process. We're learning what we
can do that we couldn't do yesterday. We have
to deal with what is acceptable, what is not
acceptable.
Hopefully, I would say I -- I would
hopefully think that you would agree -- that
the news itself has changed in many ways that
is much better than it was before and makes the
American public much more aware of what is
occurring at the time that it's happening, and
that's what the live coverage has gotten us
into.
When you get down to the coverage of the
Viet Nam War, it was the first one where we
hear over and over again where the American
89
public really understood what war was all
about.
MR. CRUZ: I just mention that
it's a sensitive area that we have to be very
careful.
MR. CRUMP: I'll agree with you,
but we learn as we go, unfortunately.
CHAIRMAN ORNSTEIN: One of the
reasons, it seems to me, why this is an
important recommendation for us, it isn't just
boilerplate, is that we're moving into an era
where newspapers don't just present yesterday's
news, but they go right up on the web to try
and compete with television stations where
you've got the drudges of the world and others
who are out there as journalists, and it's
going to change the competitive environment for
broadcasters and for others on television. And
if we can't -- appropriately can't get into
questions of even voluntary codes for internet
providers or websites, it may have even more
impact to suggest that, under these
circumstances, broadcasters and other
journalists have codes that they adhere to even
in a very different and changing and
90
competitive environment, and we need to be,
obviously, sensitive to that.
Let's talk about enforcement.
MS. CHARREN: Something I
forgot, and I don't know if this belongs, but
it's been a concern of mine for 30 years, and I
don't know if Cass can fit into this kind of
paper, maybe either in responsibilities to
children or in the news page, some sense that
it's appropriate to have news programs for
young audiences; that if we expect our nation's
children to vote at age 18 and we consider them
children up to age 17 for purposes of
broadcasting, that if we're encouraging all
kinds of programming, it makes sense to
encourage news programming for young
audiences. And obviously, I don't mean two-,
three-, four-year-olds, although when there was
a set of assassinations in this country,
Mr. Rogers, in public broadcasting, did a
program for kids, for preschoolers. It was
Mr. Rogers on assassinations. You can handle
even those kinds of things sensitively.
And it's a big poll in the broadcasting
schedules of this country, something that in
91
the late '70s was working. CBS had 20 people
in their news department doing news. I don't
expect that to happen again.
CHAIRMAN ORNSTEIN: CBS has 20
people in their news department.
MS. CHARREN: This was news for
children.
CHAIRMAN ORNSTEIN: I'm not
going to comment on that.
MS. CHARREN: It's an
opportunity to make a point that's sort of
worth making.
CHAIRMAN ORNSTEIN: I would
think under the --
CHAIRMAN MOONVES: Peggy, I
think that gets a little too specific. You're
going to demand or request that each local
station, all 1,500 of them, have a children's
news program?
MS. CHARREN: This is not news.
This is a recommendation to the industry to do
the kinds of things that we would love to see
on the television, and one of the things we
would love to see on television, which is not a
mandate from the government -- it's not a
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mandate from anybody -- is more programming,
news and public affairs programming, for young
audiences.
CHAIRMAN MOONVES: As long as
it's phrased that way, absolutely. That's
fine.
CHAIRMAN ORNSTEIN: The easy way
to do that is going back to the
responsibilities towards children, under 3
where it talks about programming for children
should take into the account range of interests
and needs of children from a structural and
cultural material and a wide a wide variety of
entertainment material to include a provision
on news and public affairs.
MS. CHARREN: That's all I
meant.
MR. RUIZ: And I also think that
the age group -- (inaudible).
MR. BENTON: Not to beat a dead
horse here.
CHAIRMAN ORNSTEIN: Let's move
on, Charles. We've beaten this horse.
Cass, why don't you briefly describe the
enforcement?
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MR. SUNSTEIN: What the old code
did is it had two bodies. It had a television
code board, which was basically in charge, and
it had a code authority general manager who was
likely day-to-day authority.
Now, I've added a few things here, you
know, after talking to Norm and others about
this, and the idea, really, was to try to use
rewards for good programming as the first
incentive.
So there is this old provision, which is a
seal of approval for complying stations, and
then there's this notion of special public
recognition for those who had a public -- an
excellent public service record. That's new
and wouldn't do a whole lot, but it might do
something.
Then the question is what to do to punish
those who haven't complied, if anything, and
one idea is the old idea; that is, to deny the
seal of approval. Another idea is to have
publicity for noncomplying or egregiously
noncomplying stations. And another idea is to
have that go to the FCC and to Congress.
Norm was actually talking about something
94
a little tougher, which was to say that in
cases of continuing or egregious violations,
the burden would be shifted to the station to
show that it should be renewed.
Now, the code itself would not raise First
Amendment problems if it did that, but insofar
as the FCC relied on the violations of the code
to deny a license, then there would be an
as-applied First Amendment issue. It's not to
say there would be an as-applied First
Amendment violation, but if someone was denied
a license because of violations of some code
provision calling for lots of programming
involving public affairs, on one view of the
First Amendment, there would be a problem.
CHAIRMAN MOONVES: What
currently goes on?
MR. SUNSTEIN: Nothing.
CHAIRMAN MOONVES: Absolutely
nothing?
MR. SUNSTEIN: The last sentence
of the principles are timorous, I think is the
word. It's like they're cowering maybe is the
word.
It says, "This statement of principles is,
95
of necessity, general and advisory. There will
be no interpretation or enforcement of these
principles by NAB or others. They are not
established basically to do anything other than
reflect existing practice."
MS. CHARREN: Is that what it
says?
MR. SUNSTEIN: That's what it
says.
MS. CHARREN: That makes my
point at the beginning of this meeting. That's
why I was a little concerned about us focusing
too much time on the code.
MR. LA CAMERA: I think it's a
reflection of the fact that they've been made
gun-shy about litigation that they've
experienced in the past.
MR. SUNSTEIN: The old code had
a enforcement provision that was similar to
this. It had somewhat less in the way of
rewards, and it had somewhat less in the way of
punishment. There was a denial of a seal of
approval, and the informal understanding was
that repeated code violations would become an
issue before the FCC. So one reason for
96
compliance was concern about that, so it is
said.
CHAIRMAN MOONVES: No, no. I'm
having trouble understanding it. This code
board, however it's formed, is going to meet
twice a year to go through 1,500 stations to
see who the good guys are and the bad guys?
MR. SUNSTEIN: This is just a
description of what was under the old code.
There was the old code, which lasted a long,
long time, and then there was the antitrust
challenge, then there was fear, then more
recently there was these principles, which are
fearful both of antitrust challenge and the
absence of such principles, which Congress is
very upset about. This is staring between two
perceived tigers.
CHAIRMAN ORNSTEIN: If we, to
get very quickly back to the antitrust issue,
if we accept the idea that having moved away
from a portion of the code that deals with
advertising issues, we have really gotten away
from the serious core antitrust questions,
there are still, obviously, questions to be
raised about enforcement, but it seems to me
97
that we can then move away from timorousness
and towards boldness in terms of trying to
build some teeth into this, and --
MR. DUHAMEL: Except it's
voluntary. The more teeth you get into it, the
less voluntary it is.
MR. SUNSTEIN: It's voluntary,
vis-a-vis government. It's not voluntary --
MR. DUHAMEL: You got 1,500
broadcasters, and some of them are going to
say, shove it. You get something that's really
wicked, I tell you just some of the small guys,
some of the independent stations, you know,
they're just lucky to be surviving. You know,
they don't have much of a news department, and
you start dumping a lot of stuff on them,
they're going to say, hey, I got other things
to do in this world than voluntarily comply,
and they'll say, we'll take public deals and
just say to Congress, we don't have any money.
MR. SUNSTEIN: I should say I
have no position on this. I just want to hear
what people have to say.
The thing that would seem least
controversial maybe or the special
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commendations for excellent service
broadcasting, or is that, in itself,
controversial?
CHAIRMAN MOONVES: Well, I don't
think it's controversial. As I said, the
practicality of it, I'm hoping of the 1,500
stations, 1,200 get, you know, the special seal
of approval. And I don't know how this board
does it, and frankly, the ability of the
enforceability of this group is going to be
very difficult.
MR. SUNSTEIN: I see the
problem.
CHAIRMAN ORNSTEIN: There is a
problem here, but let's face it. We either
want a code because we just want to avoid
dealing with any of the issues of public
interest so we can put something out there that
is a bunch of words that has no meaning
whatsoever, or we want a code so that, in
effect, not that there's coercion here, but
that there is at least peer pressure, and that
if these broadcasters want to say, forget it,
we're not going to do anything, then what the
NAB has said about the sterling record of
99
broadcasters in performing public interest and
dealing with the public, there ought to be some
obloguy brought upon these stations, and they
ought to pay a price for it, at least in the
public eye, and if you don't think they should
pay a price for it then, in effect, Bill,
you're aligning yourself with the worst
performers.
MR. DUHAMEL: I'd say that's a
small group, but there's a lot of small
independent stations that are struggling. I'm
talking about the high UHF stations out there,
and they don't have big staffs, and those are
the people -- I can see a lot them just saying,
hey, I'm surviving, and I'm not -- I'm not -- I
just can't do it.
CHAIRMAN MOONVES: Bill, it's a
much larger issue than that because now we're
getting into the question of how voluntary are
we? What are we talking about?
You know, we use the word voluntary and
obligation in the same sentence, and I think we
have to stop doing that, if I may pose the
question without editorializing like my
co-chair.
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CHAIRMAN ORNSTEIN: Oh, I think
you're editorializing very nicely.
CHAIRMAN MOONVES: All right.
Maybe just a little.
MS. CHARREN: I am so sensitive,
though, Les, to what you're saying, that I
think that for us to set out enforcement
standards that include things like special
public recognition, which means we're telling
the NAB to recognize their good members. I
mean, what kind of organization has to tell
another organization to make nice on people who
are doing good by their own rights?
I think that a paragraph saying that we
hope the industry is going to pay some
attention to the substance of these guidelines
and take appropriate action to encourage more,
you know, paying attention to them is one kind
of thing.
I think -- this is somebody who has spent
her life in front of the FCC asking for things,
so it's not like I object to the FCC saying
things out loud about broadcasting, but I don't
see how the -- what the code is relates to the
FCC overseeing it. I just can't get my arms
101
around that as a way of doing business with
broadcasting.
I think we can say all kinds of things in
the rest of the report that the industry isn't
going to like, and as a president of CBS won't
like either, and maybe will never say them, but
that's where that should get said, and the
enforcement mechanism for this code has to be
within the NAB itself.
And to tell you the truth, given what they
have put out over the last years whenever
they're up against it with issues in terms of
what they're doing right, I tend not to believe
most of it anyway.
MS. SOHN: Norm?
MR. SUNSTEIN: Can I just say
this is the NAB's own mechanism from the old
code. The mechanism is just what they had.
Does anyone here now how it worked?
Because Les's question is very good about can
you oversee 1,500? Has anyone here -- we're
all so young.
MR. MINOW: The way it worked
was at the FCC, if the station came in with the
seal on it, the FCC said, well, they're
102
complying pretty much with the industry
standards, and that's no longer true.
I take very seriously what Les said, but I
want on the record I disagree. Nobody makes
anybody become a broadcaster. Nobody makes
anybody become a broker/dealer. If you decide
to become a broker/dealer, you subscribe to the
NASD. You know that going in. Congress should
do the same thing here.
You want to get the FCC off peoples' back,
the industry has got to regulate more of
itself. If they don't want to, then you're
going to have more and more government and more
and more First Amendment issues.
MS. SOHN: Norm, I've actually a
more sort of basic point to make, and that is
we're a body that's gathered here to make
recommendations to the FCC and to Congress and
to the Vice President. We've already spent all
morning on this code.
Do you have any guarantee that the NAB is
going to adopt it? That's point number 1.
MR. CRUMP: You don't have a
guarantee Congress is going adopt it, Gigi.
All this is is a recommendation.
103
MS. SOHN: I agree, but we were
not formed to make recommendations to the
broadcasting industry, okay. We have -- we
don't have control over what anybody does,
that's true, but we've gotten some assurance
over the NAB has been at the table -- it's been
a major player here -- that it would be
inclined to adopt such a code, I might feel a
little more comfortable.
I want to make a second point, and it
relates to two things that Bill said. I think,
Bill, you make an excellent case what Peg has
been saying all morning, and I haven't had to
say it because I think it's pretty obvious,
that the fact that a significant number of
broadcasters can say "go to hell" is the reason
why we need minimum guidelines.
MR. MINOW: Is the reason what,
Gigi?
MS. SOHN: That we need some
sort of minimum guidelines, and that's why this
afternoon discussion is going to be very
important.
Voluntary, you're right, it is voluntary,
and I am troubled by the mix of voluntary
104
enforcement, and I am very concerned, and I'd
like to find a way we can legally put teeth
into this. I'm not so sure.
You're second point, Bill, is that, well,
some broadcasters, they're small, they're this,
they're that, they can't afford. I have to
agree with Newt on this point. Turn your
license back in. If you can't do it, there's
somebody else who will. There has to be a
certain base minimum about which you serve the
public interests. You just can't say, I don't
have enough money justify my license. If you
don't have enough money, go sell donuts.
MR. DUHAMEL: The things we got
to get down to are what these minimums are that
you're talking about. Why do you say take
20 percent? A lot of small broadcasters don't
have 20 percent to the bottom line.
MS. SOHN: I'm not saying --
MR. DUHAMEL: You're the one, in
April, proposed that deal.
MS. SOHN: It's a proposal,
Bill.
MR. DUHAMEL: It's outrageous.
MS. CHARREN: That's something
105
else, and we're going to talk about it.
MS. SOHN: I told you, if you
listened to what I said the last meeting, I
said I'm not laying any particular number. The
next meeting I said that.
MR. GOODMON: I still am very
positive about the notion of a code, and we all
know that you don't have to join, you don't
have to comply, but I'm hoping that, as an
industry -- and I believe that, as an industry,
we can do this and make it a source of
professional pride that we subscribe, and we do
it. I mean, that's not hard. I mean,
that's -- and some people will and some people
won't, but I believe that we can do that, and
it's just as simple as that. Here's the code,
and as a mater of pride, we want to follow it
and be part of that and say that we are, just
like we did before, and I believe that will
work. I mean -- and it is certainly preferable
to increased regulations and stuff. I'm
positive about that. I see more positives than
negatives is what I'm trying to shift.
CHAIRMAN ORNSTEIN: To follow
that with what Gigi said, I don't have a
106
problem making recommendations that hit
broadcasters, and it seems to me, going back to
some of the things Cass said early on, if we
look at our various models, I believe, as he
does, that it's preferable to do this without
regulatory mechanisms if we can.
And that, in the first instance, the
industry, on its own, creates a set of
standards and regulates itself internally,
making a regulatory apparatus or legal changes
unnecessary or superfluous, we are all better
served.
Creating a challenge to the industry by
putting as much explicitly as we can out there
in recommendations, including using an
enforcement mechanism that existed before that
is self-enforcement and maybe even enhancing it
a little bit so we can make sure that the
stations that meet those standards are out
there, which means that those that don't are
going to have to justify it in some way in the
court of public opinion, or possibly in the
regulatory arena, would be a preferable way to
go.
And if, in the end, the industry, through
107
its association, does not step up to the plate
in that regard, that any recommendations that
we make to Congress or the agencies ought to
then have more resonance because, in effect,
what the industry itself has said, that we can
do this, would ring more hollow.
So that makes, it seems to me -- that's
why we are spending this much time on a
voluntary code and why it is important to make
sure that it isn't just out there without any
mechanism internally.
MS. CHARREN: Internally?
CHAIRMAN ORNSTEIN: Internally.
That's what we're talking about here.
MR. BENTON: Following up on
this great speech that you've just made, we
have a representative to the NAB here. Are
they open to what we're talking about?
MS. CHARREN: I don't want to
discuss that now with them.
CHAIRMAN ORNSTEIN: We're
talking among ourselves here.
MS. SCOTT: The NAB attorney is
here in Geneva. Do you want me to ask him?
CHAIRMAN ORNSTEIN: Geneva would
108
be a good place for those negotiations.
Let me just add, from what I can gather,
the NAB didn't drop its code like a hot rock
because it wanted to. What ended up happening
after the antitrust challenge was a consent
decree, basically. And there is no sense out
there -- and certainly the broadcasters that we
have on this panel, many NAB members in good
standing and active in the organization, have
given us no indication that would suggest the
NAB would be adverse to returning to a code if
there are no legal or antitrust implications,
isn't that correct?
MR. CRUMP: I think we all speak
for ourselves, but that's certainly my personal
opinion.
MS. CHARREN: Peggy Charren. I
think the best thing is that this is a separate
organization appointed to look at how
broadcasting is working, and for us to have, as
part of this report, these kinds of suggestions
enables the public, that court of public
opinion, to be more specific about what it's
talking about, whether its station is doing
what it should do. It's kind of an education
109
for activist groups in the broadcasting arena
to hold their stations to some kind of
standards. And from that point of view, I
think it's helpful outside the industry, but
not for the FCC to hold the stations to this
standard. I just think like that relationship,
the more likely to get it thrown out. But the
public can say anything it pleases.
CHAIRMAN MOONVES: I think Cass
asked a very good question. I would love to
know how this code board operated way back
when, how it, in fact, functioned, what was its
authority, et cetera, et cetera, et cetera. I
think that's a fairly important question.
MR. BENTON: A lot of it is
built into this code that was passed out that's
20 years old.
CHAIRMAN MOONVES: We have no --
in January, they went through 750 stations and
in June they went through 750 stations, and
these stations got a star and these got a slap
on the wrist. I mean, I think that's an
important question.
MR. CRUZ: And I think the
conversation also indicates there's an
110
evolution of the applicability of these states
over years, and that has changed. So you're
really looking at something that's
metamorphosed over X amount of years, right,
Newt?
MR. MINOW: Right. Right.
CHAIRMAN ORNSTEIN: Well,
perhaps since we have a task force on this
subject, we can ask the task force to
communicate with the NAB and find some people
who are a part of that old board and see what
worked and what didn't and maybe adjust the
standards to fit those recommendations.
One thing we should note here is that if
we do build in a robust reporting requirement,
that it doesn't require an inordinate
expenditure of resources from the stations, but
that works. It will make that task of a board
easier if, in fact, they have what the stations
themselves have done.
MR. SUNSTEIN: I suggest that
what I'll do in the next few days is
incorporate the many good suggestions and wait
for any E-mails or faxes or phone calls and get
out something to the broadcasting -- to the
111
code task force within the week and then get
something out within two weeks to everybody.
MR. RUIZ: Would that include
checking with the NAB as to whether we would
reco