Short title

This Act may be cited as the

Digital Television Accountability and Governance Enhancement Act of 2005

or the

DTV–AGE Act

Findings

The Congress finds the following: (1)The broadcast airwaves are an extremely valuable public resource. If television broadcast licensees had to pay for their access to spectrum, it could generate in excess of $750 billion for the public treasury. Research by the Federal Communications Commission (FCC) has found that the typical profit margin for a local broadcast station is around 40 percent—four to five times higher than the typical Fortune 500 company. (2)The Communications Act of 1934 requires the FCC and broadcast licensees to promote the public interest. As public trustees, over-the-air television broadcast licensees have been granted the unique privilege of using a scarce public asset—the airwaves—for free in exchange for their promise to serve the public interest, convenience and necessity. (3)In 1969, the Supreme Court declared that it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of the market, and thus, it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. (4)Over the past two decades, deregulation in the telecommunications sector has led to rapid consolidation of media ownership. Five companies now own the broadcast networks, control 90 percent of the top 50 cable networks, produce three-quarter of all prime time programming, and control 70 percent of the prime time television market share. (5)The drastic media consolidation has greatly diminished the television broadcast licensee’s performance of public interest obligation and its ability to foster diversity, competition, and localism in the media market. (6)An October 2003 analysis of seven media markets shows that just 0.4 percent of television programming is devoted to local public affairs. By contrast, 14.4 percent is paid programming such as infomercials, 9.9 percent is reality or game shows and 7.9 percent is sporting events. In addition, most of the local public affairs programming airs on weekend mornings, at times with lower television viewership. (7)The percentage of independently produced pilots and new series on the four national broadcast networks has declined from 87.5 percent in 1990 to 22.5 percent in 2002. (8)A survey of evening news broadcasts of 44 local affiliates of broadcasters in 11 markets prior to the 2004 election showed that only eight percent of such broadcasts contained a story about a local candidate race. In contrast, eight times more coverage went to stories about accidental injuries, and 12 times more coverage to sports and weather. Nineteen percent of the stories focused on voting issues such as the location of polling stations, absentee ballot information and reports on early voting efforts. Just under five percent of the stories focused on local and statewide ballot initiatives. (9)A study of the 2000 election found that 60 percent of debates among gubernatorial, senatorial and congressional candidates were not televised. Another 19 percent appeared only on public or independent stations. (10)Local television broadcasters claim to have contributed $9.6 billion worth of community service in 2003. However, $5.6 billion of that came from public service announcements, and an additional $2.3 billion came from fundraisers for charitable causes. Among the public service announcements, roughly one-quarter featured the stars of the networks’ own prime time shows, thereby advancing the networks’ own commercial interests. (11)Since the mid-1980s, Congress and the FCC have played major roles in the development of digital television, which provides sharper pictures, a wider screen, CD-quality sound, better color rendition and simultaneous transmission of multiple video programming in standard definition television (SDTV) or a single program of high definition television (HDTV). It allows the same kind of digitally-based services offered by cable and satellite television providers and provides a more efficient use of the radio-frequency spectrum than traditional analog television, thereby conserving bandwidth. (12)In 1997, the FCC decided to grant existing, full-power television stations additional spectrum to facilitate the transition from analog to digital television. The Balanced Budget Act of 1997 set the deadline for such transition by stating that a broadcast license that authorizes analog television service may not be renewed to authorize such service for a period that extends beyond December 31, 2006. (13)In 2004, Congress passed the Intelligence Reform and Terrorism Prevention Act of 2004, which included the sense of Congress that Congress must act to pass legislation in the first session of the 109th Congress that establishes a comprehensive approach to the timely return of analog broadcast spectrum as early as December 31, 2006 and that any delay will delay the ability of public safety entities to begin planning to use this needed spectrum. (14)As of March 10, 2005, there were 1,373 commercial and public stations broadcasting digital signals in 211 markets, representing about 86 percent of the nation’s approximately 1,600 television stations. The 211 markets currently receiving digital television transmissions cover over 99 percent of U.S. television households. (15)In 1997, President Clinton established an Advisory Committee on Public Interest Obligations of DTV Broadcasters, to make recommendations on how DTV licensees should serve the public interest in exchange for free access to digital spectrum. The Committee submitted a set of ten recommendations to the FCC, Congress and the Administration and the broadcast industry in 1998. (16)On December 15, 1999, the FCC opened a Notice of Inquiry proceeding to solicit public comment on public interest obligations of TV broadcasters as they transition to DTV (MM Docket No. 99–360). In September 2000, the FCC issued the DTV Public Interest Form Notice of Proposed Rulemaking (NPRM) which sought to require television broadcasters (both digital and analog) to disclose on a quarterly standardized form how they are serving the public interest (MM Docket No. 00–168). (17)After more than four years, the FCC has not taken final action in those proceedings. (18)On September 9, 2004, the FCC adopted a Report and Order addressing children’s programming obligations for digital television broadcasters. The FCC required amount of core educational programming proportionally to the amount of increased free video programming offered by the broadcaster on digital multicast channels. The Order also concluded that commercial limits apply to all digital programming directed at children 12 years and under, whether the programming is provided on a free or pay multicast channel. (19)Congress is currently considering legislative efforts to address the December 31, 2006 deadline for reclaiming the analog spectrum. (20)The transition to digital television offers a profound opportunity to improve television broadcasters’ service to the public by enhancing the diversity of viewpoints, promoting civic participation, expanding local and community programming, and increasing children’s programming.

Term of license

(a)

Amendment

Section 307(c)(1) of the Communications Act of 1934 (47 U.S.C. 307(c)(1)) is amended by striking 8 years each place it appears and inserting 3 years. (b)

Effective date

The amendment made by subsection (a) shall be effective with respect to any license granted by the Federal Communications Commission after the date of enactment of this Act.

Implementation of public interest standards

Subsection (d) of section 336 of the Communications Act of 1934 (47 U.S.C. 309) is amended to read as follows:

(d)

Implementation of public interest standard

(1)

Requirements necessary to license renewal

Nothing in this section shall be construed as relieving a television broadcasting station from its obligation to serve the public interest, convenience, and necessity. In the Commission's review of any application for renewal of a broadcast license for a television station that provides ancillary or supplementary services, the television licensee shall establish that all of its program services on the existing or advanced television spectrum are in the public interest. Any violation of the Commission rules applicable to ancillary or supplementary services shall reflect upon the licensee's qualifications for renewal of its license. Any station licensee that uses advanced television spectrum to broadcast multiple channels of programming in the digital television service shall establish that the program services on such spectrum are in the public interest by demonstrating compliance with the requirements of paragraphs (2) and (3). (2)

Programming obligations of multicasting stations

Each broadcast television station licensee providing multiple channels of programming in the digital television service shall, in accordance with regulations prescribed by the Commission under this subsection, provide the following: (A)

Public affairs requirement

An amount of qualifying local civic affairs programming or qualifying local electoral affairs programming on its primary channel equal to a total of at least 3 hours per week, and, on the remainder of the multi-cast digital channels, a total of at least 3 hours per week of such programming multiplied by the number of such remainder channels, except that the licensee shall have the discretion to determine how to allocate such amount of programming among such remainder non-primary channels. (B)

Independent or locally produced programming

An amount of programming on its primary channel that is independently produced or locally produced programming equal to not less than 25 percent of the programming aired during primetime hours on the primary channel. (C)

Children’s educational programming

A minimum of 3 hours per week of children’s educational programming on each of the primary and remaining multi-cast digital channels, in accordance with section 102(a) of the Children’s Television Act of 1990, except that the licensee shall have the discretion to determine how to allocate such amount of programming among the remaining multi-cast digital channels. (D)

Public hearings

At least 2 public hearings per year to ascertain the needs and interest of the communities they serve, one of such hearings taking place at least 2 months prior to the date of application for license issuance or renewal. (E)

FCC reports

A report quarterly to the Commission on how the ascertainment of such needs and interests has led to public interest programming in accordance with this subsection, and describing the number of hours and the programs or program segments devoted to local civic affairs programming, independent or locally produced programming, and children's educational programming (as required by subparagraphs (A), (B), and (C)). The report shall be made available to the public and the Commission no later than 30 days after the end of the quarter, by placing a copy in the station's public file, posting a copy in the station’s website (if it has one), with a prominent and clearly identified link on the home page of the website, and filling it with the Commission. (3)

Definitions

As used in this subsection: (A)

Primary channel

The term primary channel means the over-the-air channel that the station licensee designates or determines as the primary video signal of that station for purposes of section 614 (must-carry). (B)

Qualifying local civic affairs programming

The term qualifying local civic affairs programming means local civic programming that is designed to provide the public with information about local issues. Local civic programming includes broadcasts of interviews with, or statements by, elected or appointed officials and relevant policy experts on issues of importance to the community, government meetings, legislative sessions, conferences featuring elected officials, and substantive discussions of civic issues of interest to local communities or groups. (C)

Qualifying local electoral affairs programming

The term qualifying local electoral affairs programming means programming that consists of candidate-centered discourse focusing on the local, State, and Federal races for public offices to be elected by a constituency within the licensee’s broadcast area. Local electoral affairs programming includes broadcasts of candidate debates, interviews, or statements, as well as substantive discussions of ballot measures that will be put before the voters in a forthcoming election. Programming that focuses on the horserace aspects of an election does not qualify as local electoral affairs programming. Programming that is primarily concerned with the political strength or viability of a candidate or ballot issue; that focuses on a candidate or ballot issue’s status in relation to polling data, endorsements or fundraising totals; or discusses an election in terms of who is winning or losing is considered to be focused on such horserace aspects. (D)

Exclusions from definitions

Public service announcements and paid political advertisements shall not be treated as qualifying local civic affairs programming or qualifying local electoral affairs programming. (E)

Additional qualification requirements

Local civic and electoral affairs programming must meet the following qualification requirements in order to be counted towards the 3 hour minimums under paragraph (2)(A): (i)The programming must be aired between 7:00 a.m. and 11:35 p.m., with at least 50 percent of that programming being aired between 5:00 p.m. and 11:35 p.m., Monday through Friday, and between 7:00 a.m. and 12:00 p.m., Saturday and Sunday mornings. (ii)At least 75 percent of the required minimum must be first-run programming by the licensee. For purposes of this clause, first-run programming means a program which has never before been distributed by a broadcast licensee and which will be distributed for the first time by the licensee. (iii)A licensee holding multiple licenses within the same area (as defined by the Commission’s rules permitting multiple ownership) may not fulfill its requirements by duplicating original first run programming on its stations. (iv)Programming that is aired during regularly scheduled newscasts on the primary channel that otherwise meets the definition of qualifying local civic affairs programming or qualifying local electoral affairs programming may be counted towards the licensee’s weekly minimum, up to 30 minutes per week. (F)

Independently produced or locally produced programming

(i)The term independently produced or locally produced programming means programming produced by an entity not owned or controlled by an owner of a national television network. (ii)If an owner of a national television network owns or controls more than a one-third financial interest in the program, acts as the distributor of such program in syndication, or owns the copyright in such program, the owner of a national television network shall be considered to be the producer of that program for the purposes of this section. A program cross-licensed by one network entity to another network entity shall not be considered independent or locally produced programming. (iii)Programming that meets the definition of qualifying local civic or electoral affairs programming shall not be included as independently produced or locally produced programming under this subparagraph.

Commission action required

The FCC shall, consistent with the amendment made by section 4, within 9 months after the date of enactment of this Act— (1)issue a final decision in the Matter of Public Interest Obligations of TV Broadcast Licensees, MM Docket No. 99–360; (2)issue a final decision in the Matter of Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, MM Docket No. 00–168; and (3)complete a rulemaking proceeding to determine how the broadcast licensees may utilize distribution and promotion mechanisms, such as personal video recorders, video-on-demand, and electronic program guides, to make available and promote local civic and electoral affairs programming.