[Federal Register Volume 69, Number 146 (Friday, July 30, 2004)]
[Proposed Rules]
[Pages 45665-45668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17428]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 04-232; FCC 04-145]


Retention by Broadcasters of Program Recordings

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In this document, the Commission proposes to require that 
television and radio stations retain program recordings for a period of 
time for purposes of enforcing the statutory prohibition against 
obscene, indecent, or profane broadcast programming, among other 
reasons.

DATES: Comments due on or before August 27, 2004; reply comments are 
due on or before September 27, 2004.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554. For further filing information, see SUPPLEMENTARY 
INFORMATION.

FOR FURTHER INFORMATION CONTACT: Ben Golant, 202-418-7111 or 
[email protected].

SUPPLEMENTARY INFORMATION: This is a synopsis of the Notice of Proposed 
Rulemaking, FCC 04-145, adopted June 21, 2004 and released July 7, 
2004. The full text of the Commission's NPRM is available for 
inspection and copying during normal business hours in the FCC 
Reference Center (Room CY-A257) at its headquarters, 445 12th Street, 
SW., Washington, DC 20554, or may be purchased from the Commission's 
copy contractor, Qualex International, (202) 863-2893, Portals II, Room 
CY-B402, 445 12th St., SW., Washington, DC 20554, or may be reviewed 
via Internet at http://www.fcc.gov/mb.

Synopsis of the Further Notice of Proposed Rulemaking

    1. In this Notice of Proposed Rulemaking (``NPRM''), we propose to 
require that broadcasters retain recordings of their programming for 
some limited period of time (e.g., 60 or 90 days) in order to increase 
the effectiveness of the Commission's process for enforcing 
restrictions on obscene, indecent, and profane broadcast programming.
    2. It is a violation of federal law to broadcast obscene, indecent, 
or profane programming. Specifically, Title 18 of the United States 
Code, Section 1464, prohibits the utterance of ``any obscene, indecent, 
or profane language by means of radio communication.'' Congress has 
given the Federal Communications Commission the responsibility for 
administratively enforcing 18 U.S.C. 1464. In doing so, the Commission 
may, for example, revoke (or decline to renew) a station license or 
impose a monetary forfeiture for the broadcast of such prohibited 
material.
    3. The Commission's enforcement policy under Section 1464 has been 
shaped by a number of judicial and legislative decisions. In 
particular, because the Supreme Court has determined that obscene 
speech is not entitled to First Amendment protection, obscene speech 
cannot be broadcast at any time. Indecent speech is protected by the 
First Amendment and cannot be outlawed completely, but, pursuant to 
Commission regulations, implementing a subsequent statute and court 
decision, the airing of such programming is restricted to the hours of 
10 p.m. to 6 a.m., when children are less likely to be in the audience. 
The courts have consistently upheld the Commission's authority to 
regulate indecent speech, albeit with certain limitations. In this 
NPRM, we seek comment on enhancing our enforcement processes through 
proposed program recording retention requirements for broadcast 
stations in order to improve the adjudication of complaints.
    4. The Commission's current procedures for the filing and 
consideration of complaints were articulated in its Indecency 
Guidelines Policy Statement. The Commission does not independently 
monitor broadcasts for obscene, indecent, or profane material. Its 
enforcement actions are based on documented complaints received from 
the public. Given the sensitive nature of these cases and the critical 
role of context in a determination, it is important that the Commission 
be afforded as full a record as possible to evaluate allegations of 
objectionable programming. In order for a complaint to be considered, 
our practice is that it must generally include: (1) A significant 
excerpt from the program or a full or partial tape or transcript of the 
program; (2) the date and time of the broadcast; and (3) the

[[Page 45666]]

call sign of the station involved. Although a complainant is not 
required to provide a tape or transcript, he or she must provide 
sufficient information regarding the content at issue to place it in 
context. The amount of information provided need not be extensive.
    5. The staff reviews each complaint to determine whether the 
relevant material may violate the obscenity, indecency or profanity 
standards and, in the case of indecency and profanity, whether the 
material was broadcast outside the safe harbor hours. If there is 
sufficient information in the complaint that the facts, if true, 
suggest a violation may have occurred, the staff will commence an 
investigation by issuing a letter of inquiry (``LOI'') that, among 
other things, requires the licensee to produce a recording or 
transcript of the program, if it has one. Otherwise, the complaint is 
generally dismissed or denied. If, based on the complaint, the 
licensee's response to the LOI and other facts in the record, it 
appears that a violation has occurred, the staff or the Commission will 
take enforcement action, such as issuing a Notice of Apparent Liability 
(``NAL'') proposing a forfeiture or potentially an order to show cause 
to revoke the station's license.
    6. We seek comment on steps the Commission could take to improve 
our complaint process and better enforce our existing standards by 
requiring broadcasters to retain recordings of their broadcast for a 
limited period of time. Because the specifics and context of the 
broadcast are critical to the determination of whether material is 
obscene, indecent, or profane, the more information the Commission can 
have in its possession about a program when it concludes an 
investigation and decides whether or not to initiate an enforcement 
proceeding, the more informed a decision it can make. Many complainants 
are able to provide enough detail for us to determine that enforcement 
action is warranted, even if the licensee has no transcript or 
recording of the program to provide in response to an LOI. In other 
cases, however, the Commission may lack a sufficient record where the 
licensee is unable to provide a tape or transcript in response to an 
LOI.
    7. Accordingly, we propose to improve our indecency complaint 
process by requiring broadcasters to retain a recording of all material 
they air during the hours of 6 a.m. and 10 p.m., when children are 
likely to be in the audience, for a limited period of time. This 
approach would ensure that the Commission has a complete record before 
it in deciding whether to initiate enforcement proceedings after an 
investigation. We seek comment on this proposal, including the proper 
length of time a copy of programming should be retained by a licensee, 
such as 60 or 90 days. Our goal is to establish a retention period that 
is long enough to ensure that the recording will be available in 
response to an LOI, but not so long that it imposes unreasonable 
burdens. We also seek comment on whether the proposed record retention 
requirements should be crafted so that they can be useful to 
enforcement of other types of complaints based on program content. For 
example, the proposed record retention requirements may aid us in 
enforcing our children's television commercial limits and sponsorship 
identification requirements. We seek comment on whether there have been 
problems in enforcing those requirements that justify imposition of a 
retention requirement, as well as whether the benefits of this 
additional enforcement tool justify requiring broadcasters to record 
their programming 24 hours a day, rather than only 6 a.m. to 10 p.m., 
the hours when indecent programming is prohibited. We seek comment on 
how the proposed record retention requirement should apply to digital 
television and radio stations. Should the proposed rules apply to all 
digital streams, including programming offered on a subscription basis?
    8. We seek comment on whether the proposed requirements should 
affect our established broadcast complaint process. Currently, we 
generally require a complainant to submit a tape, transcript, or 
significant excerpt before we will consider a complaint so that we have 
some sense of whether the material broadcast may have violated the law 
before we commence an inquiry. We ask whether we should change this 
policy if we were to require records to be retained. For example, a 
complaint containing a general description of the relevant broadcast 
programming may be adequate to trigger Commission action because we 
could obtain the actual recording from the station. We seek comment on 
this matter as well as other possible revisions to our current 
complaint process.
    9. The proposed record retention requirements will affect the 
record-keeping practices of broadcast stations. We seek comment on the 
financial burden the proposals may impose. What are broadcasters' 
current practices in terms of recording programming and retaining 
copies of the recordings? What steps would a broadcast station have to 
take to comply with the proposed requirements? How much would it cost 
to keep programming for 60 days, 90 days? Does the development and 
increased use of digital recording and storage reduce the costs? We 
recognize that it may be more costly to retain high definition 
television content because of the equipment required to record such 
material. We propose that it would be permissible for such content to 
be recorded at a lower bit rate so that it is not as expensive to 
retain. We seek comment on this proposal. Are there any other means to 
reduce the financial costs of complying with the proposed requirements? 
We seek specific comment on the impact that retention rules may have on 
small broadcasters.
    10. We are mindful that we must be cautious in our enforcement of 
Section 1464 with respect to indecency and profanity because free 
speech rights are involved. We therefore seek comment on whether our 
proposals raise any First Amendment issues.
    11. We also seek comment on how the proposed record retention 
requirements may affect parties other than broadcast stations. For 
example, would the retention of third party commercial material, such 
as broadcast advertisements or infomercials, raise copyright or 
contractual issues? What other issues should we consider in this 
context? Although we seek comment on approaches for improving our 
enforcement process, we do not raise for comment in this proceeding our 
substantive standards for indecency or any other rules that may be 
implicated. Any comments beyond the scope of this NPRM will not be 
considered.
    12. Ex Parte Rules. This proceeding will be treated as a ``permit-
but-disclose'' proceeding subject to the ``permit-but-disclose'' 
requirements under Section 1.1206(b) of the Commission's rules. Ex 
parte presentations are permissible if disclosed in accordance with 
Commission rules, except during the Sunshine Agenda period when 
presentations, ex parte or otherwise, are generally prohibited. Persons 
making oral ex parte presentations are reminded that a memorandum 
summarizing a presentation must contain a summary of the substance of 
the presentation and not merely a listing of the subjects discussed. 
More than a one- or two-sentence description of the views and arguments 
presented is generally required. Additional rules pertaining to oral 
and written presentations are set forth in section 1.1206(b).
    13. Comments and Reply Comments. Pursuant to sections 1.415 and 
1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested 
parties must file comments on or before August 27, 2004,

[[Page 45667]]

and reply comments on or before September 27, 2004. Comments may be 
filed using the Commission's Electronic Comment Filing System 
(``ECFS'') or by filing paper copies. Accessible formats (computer 
diskettes, large print, audio recording, and Braille) are available to 
persons with disabilities by contacting Brian Millin, of the Consumer & 
Governmental Affairs Bureau, at (202) 418-7426, TTY (202) 418-7365.
    14. Comments filed through the ECFS can be sent as an electronic 
file via the Internet to http://www.fcc.gov/e-file/ecfs.html. 
Generally, only one copy of an electronic submission must be filed. In 
completing the transmittal screen, commenters should include their full 
name, U.S. Postal Service mailing address, and the applicable docket or 
rulemaking number. Parties may also submit an electronic comment by 
Internet e-mail. To get filing instructions for e-mail comments, 
commenters should send an e-mail to [email protected], and should include 
the following words in the body of the message, ``get form .'' A sample form and directions will be sent in reply.
    15. Parties who choose to file by paper must file an original and 
four copies of each filing. Filings can be sent by hand or messenger 
delivery, by commercial overnight courier, or by first-class or 
overnight U.S. Postal Service (although we continue to experience 
delays in receiving U.S. Postal Service mail). The Commission's 
contractor, Best Copy and Printing, Inc., will receive hand-delivered 
or messenger-delivered paper filings for the Commission's Secretary at 
Suite CY-B402, 445 12th Street, Washington, DC 20554. All hand 
deliveries must be held together with rubber bands or fasteners. Any 
envelopes must be disposed of before entering the building. Commercial 
overnight mail (other than U.S. Postal Service Express Mail and 
Priority Mail) must be sent to 9300 East Hampton Drive, Capitol 
Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, 
and Priority Mail, should be addressed to 445 12th Street, SW., 
Washington, DC 20554. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
    16. The Regulatory Flexibility Act of 1980, as amended (``RFA''), 
requires that a regulatory flexibility analysis be prepared for notice 
and comment rule making proceedings, unless the agency certifies that 
``the rule will not, if promulgated, have a significant economic impact 
on a substantial number of small entities.'' The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A ``small business concern'' is one which: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the Small Business 
Administration (SBA). By the issuance of this NPRM, we seek comment on 
the impact our suggested proposals would have on small business 
entities. The complete regulatory flexibility analysis is attached as 
Appendix A.
    17. This NPRM contains proposed information collection(s) subject 
to the Paperwork Reduction Act of 1995 (``PRA''), Public Law 104-13. It 
will be submitted to the Office of Management and Budget (``OMB'') for 
review under the PRA. OMB, the general public and other Federal 
agencies are invited to comment on the proposed information collections 
contained in this proceeding. Comments should address: (a) Whether the 
proposed collection of information is necessary for the proper 
performance of the functions of the Commission, including whether the 
information shall have practical utility; (b) the accuracy of the 
Commission's burden estimates; (c) ways to enhance the quality, 
utility, and clarity of the information collected; and (d) ways to 
minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology.
    18. Written comments on the proposed new and modified information 
collections must be submitted on or before 60 days after date of 
publication in the Federal Register. In addition to filing comments 
with the Secretary, a copy of any Paperwork Reduction Act comments on 
the information collection(s) contained herein should be submitted to 
Leslie Smith, Federal Communications Commission, Room 1-A804, 445 12th 
Street, SW., Washington, DC 20554, or via the Internet to Leslie 
[email protected], and to Kristy L. LaLonde, OMB Desk Officer, Room 10234 
NEOB, 725 17th Street, NW., Washington, DC 20503 via the Internet to 
Kristy [email protected] or by fax to 202-395-5167. For more 
information concerning the information collection(s) contained in this 
document, contact Leslie Smith at 202-418-0217, or via the Internet at 
Leslie [email protected].
    19. This document is available in alternative formats (computer 
diskette, large print, audio record, and Braille). Persons with 
disabilities who need documents in these formats may contact Brian 
Millin at (202) 418-7426 (voice), (202) 418-7365 (TTY), or via email at 
[email protected]. For additional information on this proceeding, contact 
Ben Golant, [email protected], of the Media Bureau, Policy Division, 
(202) 418-7111.
    20. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA'') the Commission has prepared this Initial Regulatory 
Flexibility Analysis (``IRFA'') of the possible significant economic 
impact on a substantial number of small entities by the policies and 
rules proposed in the NPRM. Written public comments are requested on 
this IRFA. Comments must be identified as responses to the IRFA and 
must be filed by the deadlines for comments on the NPRM provided above. 
The Commission will send a copy of this entire NPRM, including this 
IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration (``SBA''). In addition, the NPRM and the IRFA (or 
summaries thereof) will be published in the Federal Register.
    21. Need For, and Objectives of, the Proposed Rules. This 
rulemaking proceeding is initiated to obtain comments concerning the 
Commission's proposals to enhance the indecency enforcement process by 
requiring television and radio broadcast licensees to retain recordings 
of their programming for some limited period of time.
    22. Legal Basis. The authority for this proposed rulemaking is 
contained in sections 1, 2, 4(i), 303, and 307, of the Communications 
Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, and 307.
    23. Description and Estimate of the Number of Small Entities to 
Which the Proposed Rules Will Apply. The RFA directs the Commission to 
provide a description of and, where feasible, an estimate of the number 
of small entities that will be affected by the proposed rules. The RFA 
generally defines the term ``small entity'' as encompassing the terms 
``small business,'' ``small organization,'' and ``small governmental 
entity.'' In addition, the term ``small Business'' has the same meaning 
as the term ``small business concern'' under the Small Business Act. A 
small business concern is one which: (1) Is independently owned and 
operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the Small Business 
Administration (``SBA'').
    24. Television Stations. The proposed rules and policies will apply 
to television broadcasting licensees, and potential licensees of 
television service.

[[Page 45668]]

The Small Business Administration defines a television broadcasting 
station that has $12 million or less in annual receipts as a small 
business. Television broadcasting stations consist of establishments 
primarily engaged in broadcasting visual programs by television to the 
public, except cable and other pay television services. Included in 
this industry are commercial, religious, educational, and other 
television stations. Also included are establishments primarily engaged 
in television broadcasting and which produce taped television program 
material. Separate establishments primarily engaged in producing taped 
television program materials are classified under another SIC number. 
As of December 31, 2003, there were 1,733 full power television 
stations in the United States. There were also 605 Class A television 
stations and 2,129 low power television stations. Therefore, the rules 
we may adopt in this proceeding will likely affect nearly 4,500 
television station licensees.
    25. Radio Stations. The proposed rules and policies potentially 
will apply to all AM and FM radio broadcasting licensees and potential 
licensees. The SBA defines a radio broadcasting station that has no 
more than $5 million in annual receipts as a small business. A radio 
broadcasting station is an establishment primarily engaged in 
broadcasting aural programs by radio to the public. Included in this 
industry are commercial, religious, educational, and other radio 
stations. Radio broadcasting stations which primarily are engaged in 
radio broadcasting and which produce radio program materials are 
similarly included. However, radio stations which are separate 
establishments and are primarily engaged in producing radio program 
material are classified under another SIC number. As of December 31, 
2003, official Commission records indicate that 11,011 radio stations 
were in operation, of which 4,794 were AM stations. Thus, the proposed 
rules will affect over 11,000 radio stations.
    26. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements. The proposed rules would impose additional 
reporting or recordkeeping requirements on existing television and 
radio stations. We seek comment on the possible cost burden these 
requirements would place on small entities. Also, we seek comment on 
whether a special approach toward any possible compliance burdens on 
small entities might be appropriate.
    27. Steps Taken to Minimize Significant Impact on Small Entities, 
and Significant Alternatives Considered. The RFA requires an agency to 
describe any significant alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): (1) The establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for small entities; (3) the use 
of performance, rather than design, standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for small entities. The 
Commission seeks comment on alternative timeframes for record retention 
in order to lessen the regulatory burden on broadcast television and 
radio stations. Specifically, we propose relatively short time frames 
in order to minimize the burden on broadcasters. We are also cognizant 
of the difficulties associated with recording high definition content, 
and for that reason propose to allow broadcasters to record programming 
at a lower bit rate. The Commission also seeks specific comments on the 
burden our proposals may have on small broadcasters. There may be 
unique circumstances these entities may face and we will consider 
appropriate action for small broadcasters at the time when a Report and 
Order is considered.
    28. Federal Rules Which Duplicate, Overlap, or Conflict With, the 
Commission's Proposals. None.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 04-17428 Filed 7-29-04; 8:45 am]
BILLING CODE 6712-01-P