Fox Stations Complain About DTV Mandates

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Washington -- Fox Television Stations, a division of Rupert Murdoch’s News Corp., is objecting to proposed federal rules that would require the broadcast of public service announcements designed to educate American TV viewers about the impending digital TV transition.

Mandating PSAs would not only be bad policy and exceed FCC legal authority but would also violate the First Amendment because the federal government can’t tell TV stations what content to broadcast, Fox outside counsel Clark Wadlow argued in a letter filed at the FCC on Nov. 7.

Fox’s lawyer also suggested that if mandating PSAs were so important, the federal government should step up and buy advertising time from TV stations and cable companies rather than shift the expense elsewhere.

“The [FCC] would essentially be using its rulemaking authority to compel broadcasters to provide free air time for the promulgation of a government message – air time that the government would otherwise have to pay millions of dollars to purchase,” Wadlow wrote.

The National Association of Broadcasters (NAB) is also strongly opposed to DTV PSA mandates. Ironically, some of Fox’s legal arguments against forced distribution of DTV PSAs were closely aligned with the cable industry’s ongoing attack on NAB-supported regulations that force cable operators to carry local TV station content.

FCC chairman Kevin Martin has disclosed that he wants to force TV stations to air DTV transition education PSAs throughout the day, including during evening “primetime” hours when TV stations tend to maximize their ad revenue and DTV PSA substitutes could do the most financial damage.

But Martin has not moved quickly on the DTV PSA issue. Instead, he has been spending agency time looking for ways to relax some TV ownership regulations and scouring communications law to find new ways of adding regulatory burdens onto cable operators and their programmers.

The DTV PSA issue had taken on some urgency because on Feb. 17, 2009, all full-power analog TV stations are required by law to shut down. Many Capitol Hill lawmakers maintain that a public education campaign that includes a healthy dose of PSAs is essential to ensure that millions of consumers are aware of the steps they must take to view TV stations’ new digital signals after the analog cutoff.

Martin’s plan involves PSA quotas with the broadcast day broken down into four, six-hour segments, with PSAs required to air in each segment. Since primetime is three hours long and would not be its own PSA segment under Martin’s plan, TV stations could easily avoid giving up primetime ads for DTV PSAs. A Martin aide said the agency would not allow that evasion to happen.

In his letter, Fox lawyer Wadlow said FCC rules were unnecessary because NAB has already announced a $697 million DTV education campaign that addresses the consumer education issue on a number of fronts, including PSAs.

The Fox Network inserted DTV education PSAs into network programming from Oct. 22 to Oct. 30 at a cost of $260,000, Wadlow said, adding that Fox-owned stations aired “several hundred 15- and 30-second DTV PSAs” throughout the day during the week of Oct. 28.

“No party has even remotely made the case that intrusive government mandates are required,” Wadlow said.

The NAB has a six-point DTV education plan as enunciated by its president David Rehr. Five of the points have nothing to do with using the broadcast-TV medium to educate the TV viewing public about the demise of analog TV in 464 days.

The plan includes a vaguely defined PSA program, and the remainder relies on either low-cost or no-cost components, such as generating news stories, sending a truck made up to look like a giant TV screen to 600 locations, forming a 700-person speaker bureau, and creating English-Spanish Web sites.

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