Broadcasting Telecasting (Apr-Jun 1958)

SPECIAL REPORT CONTINUED formation on. among other things, the stations whose programs were being offered to CATV subscribers, the originating channel and the channel on which service was delivered; the approximate number of homes served by each CATV system, the counties in which they were located and an estimate of the number of homes able to receive television without the cable service. The purpose. Nielsen authorities explained, was to provide "a check against normal tv ownership in marginal areas." This information, they noted, "is extremely helpful to us in editing mentions [of viewership] for stations at distances or in locations where we would not normally expect direct service." Who owns the programs? Are community antenna tv systems "pirates?" Yes, say program producers and many broadcasters. Of course not, CATV operators reply indignantly. They pick up our programs, often without permission, and re-sell them to subscribers, according to the broadcaster version. But CATV people reply that broadcasters are getting free and extra circulation in places outside the range of reliable reception. The property rights question has never been settled in court. One of these days a hardy broadcaster is expected to start a test case, challenging the right of a CATV system to re-transmit his programs without permission and at a profit. A clear-cut decision would wipe out a lot of the commercial static in the CATVbroadcaster controversy. Unheeded protests: For many years broadcasters, program owners and networks have formally protested unauthorized retransmission of their programs on CATV. They can get pretty indignant about it. But they often slip us a wink with the protest, the CATV people say, as they blithely ignore these legalistic formalities. One tv station, KLTV (TV) Tyler, Tex., raised the "pirate" cry in protesting to the FCC that a CATV project in Texas wanted microwave licenses to extend and improve its service (see Tyler story, page 36). KLTV is blunt in its formal protest: "For this Commission to grant licenses to someone engaging in such illegal pirating so that they can better continue that practice, is to aid and abet an illegal or tortious act." These formal protests have been made to the CATV operator in Tyler, according to KLTV's FCC petition: • NBC-TV objected "to any use by your community antenna system of the NBC Television Network programs as broadcast by KTBS-TV Shreveport, La., and will consider any such use by you to be unauthorized and a violation of our rights." • KTBS-TV told the CATV operator its NBC-TV affiliation contract indicates "that we must request that you do not include our station" in the Tyler system. • Ziv Television Programs said, "This Page 40 • May 12, 1958 unauthorized use of our property has and is causing us serious damage. We have been advised by our attorneys that this use, without our permission or license, constitutes an unlawful infringement of our copyright as well as unfair competition. Wc must, therefore, insist that such misappropriation of this company's property be ended immediately." Follow-up letters were sent, the last one dated March 14, 1958. • National Telefilm Associates, mentioning Dallas, Shreveport and Fort Worth pickups, wrote April 3, 1958: ". . . We demand that you refrain from picking up any of our pictures for transmission to your subscribers. Any such further activity on your part will result in legal action." One angle that concerns tv and theatrical film companies is the fact that stations whose service areas are penetrated by signals from other stations might refuse to pay first-run rates for films that have come in via CATV. An aging question: Every NAB convention and regional meeting held in the last decade has taken up, formally or in a bedroom huddle, the matter of property rights and CATV. The association has shown official concern but must await a willing broadcaster before suit can be started. The CATV trade association, National Community Television Assn., says it will welcome a test case. The association, which meets June 10-12 in Washington, has a code of ethics that includes a clause pledging to deliver tv signals without additions or changes in broadcast intelligence and to comply with all legally applicable governmental relations. Then, too, there is another property problem— the rights of a station in the electronic signal it propagates. This subject, too, may be litigated one of these days. FCC ducks jurisdiction The FCC has had the nettlesome CATV problem in its hand several times — but each time it has dropped the issue. The Commission said it doesn't have jurisdiction and doesn't want the authority to regulate CATV systems. And, furthermore, it said, if it had to regulate CATV operators in order to protect broadcasters, it might have to regulate broadcasters too. FCC Chairman John C. Doerfer has made these points twice in the last four years. In public speeches, he has gone on record as being opposed to the Commission taking jurisdiction over antenna distribution systems. The latest ruling: A basic CATV case was handed the FCC in 1956 when a group of 1 3 western radio and tv operators filed a complaint against more than 250 CATV operators. The broadcasters asked the Commission to assume the responsibility of regulating the antenna systems as common carriers. They charged that CATV operators defeated one of the priorities in the Commission's Sixth Report and Order, that there be at least one local service in all communities, by inhibiting local tv service in small communities; that CATV upset the allocations table by bringing in distant tv signals to areas where they were not supposed to reach, etc. In April 1958 the Commission ruled (with Comr. Robert E. Lee not participating) that CATV systems do not perform the functions of a common carrier as set out in the Communications Act. The FCC said that there is a basic difference between CATV and common carrier. The latter, it pointed out, carries traffic determined by the user. In the CATV case, it declared, the signals put on the coaxial cable were determined by the operator of the antenna system, not by the subscribers. It also said it doubted that it could assume jurisdiction under its broadcast licensing authority. Even if it could, the Commission added, it doubted whether it should restrict or control CATV to protect broadcast stations. Last week, the western broadcasters filed with the FCC a plea to reopen and reconsider the complaint. The complainants made these points: • In many instances in its decision the Commission expressed doubts as to its jurisdiction, as to the advisability of regulating CATV operators, etc. If there are doubts, they should be decided after an open hearing. • The Commission might not consider it wise to regulate CATV to protect local station service, but it could prohibit unfair practices. For instance it could prohibit CATV operators from "breaching" the first refusal rights of network affiliates. • It could also impose a requirement on intercity microwave "specialized" common carriers that they not feed big city tv programs to CATV systems in direct competition with tv broadcast stations in the same area. Or the Commission could indirectly accomplish this by forbidding stations to permit this to be done with their signals. Doerfer's reasons: Some of the statements of Chairman Doerfer spell out his attitude — presumably shared by some of his colleagues — that it would not be advisable for the Commission to assert jurisdiction over CATV. In 1954, in a speech to the National Assn. of Railroad & Utilities Commissioners in Chicago, he explained the "dilemma" confronting the FCC in the CATV problem. On the one hand, he said, CATV brings network service to communities. On the other hand, he added, local stations bring local .expression to their cities, but no network service, or at best only one. Which is best for the public? And, he asked, how about those viewers who are too far out for connection with the CATV system and don't get clean signals from the local station? In a June 1955 speech to the National Community Television Assn. in New York he repeated some of the above, and added a serious note for broadcasters to ponder: "If a CATV is declared a common carrier, then if anyone is entitled to protection it is the common carrier under the ordinarily understood concepts of regulation. Hence if broadcasters seriously contend that they are entitled to protection, they, in effect, are asking for eventual regulation of their rates and services." Broadcasting