Candor requires acknowledgment, for me at least, that the Commission's position strains the outer limits of even the open-ended and pervasive jurisdiction that has evolved by decisions of the Commission and the courts. * * *
There is a public interest in a diversity of broadcast entertainment formats. The disappearance of a distinctive format may deprive a significant segment of the public of the benefits of radio, at least at their first-preference level. When faced with a proposed license assignment encompassing a format change, the FCC is obliged to determine whether the format to be lost is unique or otherwise serves a specialized audience that would feel its loss. If the endangered format is of this variety, then the FCC must affirmatively consider whether the public interest would be served by approving the proposed assignment, which may, if there are substantial questions of fact or inadequate data in the application or other officially noticeable materials, necessitate conducting a public hearing in order to resolve the factual issues or assist the Commission in discerning the public interest. Finally, it is not sufficient justification for approving the application that the assignor has asserted financial losses in providing the special format; those losses must be attributable to the format itself in order logically to support an assignment that occasions a loss of the format.
must be accommodated to the realities of judicial scrutiny, which do not contemplate that the court itself will, by a laborious examination of the record, formulate in the first instance the significant issues faced by the agency and articulate the rationale of their resolution. * * * (The record must) enable us to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them as it did.
how cablecasting can best be regulated to provide a beneficial supplement to over-the-air broadcasting without at the same time undermining the continued operation of that “free” television service.
Total household | 75,400,000 | |
TV set penetration | percent | 97 |
CATV penetration | do | 35 |
CATV penetration with pay | ||
TV potential | do | 80 |
Pay subscriber penetration | ||
of systems with pay | ||
potential | do | 15 |
Percent of pay subscribers | ||
viewing program | do | 50 |
Charge to subscriber for | ||
program | dollars | 2.25 |
Percent of pay fee collected | ||
passed on to program | ||
producers | percent | 35 |
(p)ay cable operations will have more money than television stations or television networks to purchase programming and, being creatures of a competitive economic system, will inevitably purchase much of the best programming now broadcast on free television and leave free television only with what is left over. * * *
Notice of Proposed Rule Making in Docket 19554 is hereby announced. All interested persons are invited to file written comments on the rule making proposals on or before September 15, 1972 and reply comment on or before September 29, 1972. . . . In reaching a decision in this matter, the Commission may take into account any other relevant information before it, in addition to the comments invited by this Notice.
*64 **197 Once a notice of proposed rulemaking has been issued that will involve competing private claims to a valuable privilege3 or selective treatment of competing business interests of great monetary value . . . etc.
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