URL 34: My Biggest Victory: FCC Says Clipping Is Not Allowed Anymore (March 2, 1973) (In Chapter 37, page 174) (937 words) (38,539 cum words)
|Affiliation contracts between broadcast stations and networks typically provide that the station will be compensated for carrying specific network programs, commercials, and other material, including, but not limited to, network identifications, credit announcements or promotional material. In order to collect payment, the station periodically submits a statement to the network certifying that the specified network material has been broadcast. A certification form usually has space to indicate deletions or cancellations of network material. If deletions or cancellations are indicated by the station, the amount of payment received from the network may be reduced. “Network clipping” means that the licensee has not fulfilled its contractual obligation to the network, by certifying that specified network material was broadcast in full when there were, in fact, cancellations or deletions. Because of the number of complaints that have been filed with the Commission on network clipping, often confirmed upon investigation, this public notice is being issued to clarify further the Commission’s policy in this area, as well as pertinent rules and Commission cases dealing with network clipping.
Licensees are cautioned that, as a general proposition, the Commission considers falsely certifying that network material has been carried to be a use of a licensed facility for fraudulent purposes, which raises serious questions as to a licensee’s qualifications to hold a broadcast authorization. The Commission’s concern exists regardless of whether the clipped material consists of advertising, program content, or other material provided by the network, and regardless of whether network clipping exists because of the licensee’s knowing participation, its indifference, of its failure to adequately supervise or control is employees or agents.
One party has indicated that it believes that the Commission’s concern as to network clipping expressed above is a change from the policy set out in Radio Station WSOC, Inc. 21 FCC 887, 943, 12 BR 953, 1007 (1956). In the WSOC decision, the Commission did not award a demerit in a comparative hearing where an applicant had deleted network material (not program content), because the deletions were made with the full knowledge of the network. Network clipping, as defined above, refers only to situations where the network is not aware of the clipping because of false certifications submitted by the affiliated station. Thus, there is no inconsistency between the WSOC case and the Commission’s statement here.
Where the clipped material contains advertising, licensees are subject to forfeitures under the fraudulent billing rule, Section 73.1205. See, for example, Radiozark Broadcasting of Louisiana, 32 FCC 2d 603 (1971). Licensees should note that the material appearing at the end of certain television contest or quiz programs disclosing the receipt of payment for the use of merchandise on the program is a commercial announcement, unless the announcement comes under the terms of the proviso clause of Section 317(a) of the Communications Act, National Broadcasting Co., 27 FCC 2d 75, 20 RR 2d 901 (1970), affirmed on reconsideration; American Broadcasting Co., 30 FCC 2d 827, 22 RR 2d 220 (1971). Clipping of such commercial material, while certifying to the network that it was broadcast, has resulted in the assessment of a forfeiture, Channel 13 of Las Vegas Inc., 37 FCC 2d 518, 25 RR 2d 286 (1972). Clipped material at the end of programs may also contain the sponsor identification required by Section 317 of the Communications Act and by Sections 73.119,73.289, and 73.654 of the Commission’s Rules, providing another basis for the imposition of forfeitures or other sanctions.
In some situations, primarily involving TV stations, the network may determine that no payments to the station are warranted because of the station’s limited audience. The network may, however, agree to pay all or part of the costs of providing is programming to the station by wire or microwave transmission. The assumption of these costs constitutes consideration. Licensees in these circumstances should carefully read their affiliation contracts to assure that no certifications are issued to the network that provide false information as to the station’s compliance with the terms of the contract.
Nothing in this Notice should be interpreted to place any limitation on the licensee’s discretion to delete any material that it believes to be indecent, profane, obscene, in bad taste, or otherwise contrary to the public interest. The Notice is intended to emphasize that such deletions or cancellations should be accurately disclosed in the certifications to the network. This Notice is not intended to apply to clipping of a few seconds duration that occasionally results from switching or other technical problems. Finally, this Notice is directed toward the obligations of the licensee. The licensee is not responsible for material deleted by the network; for example, the editing of films by a network to conform to time requirements, or returning to a sports event after a network commercial when play was resumed during the commercial.
The above refers to situations in which fraudulent certifications are given to networks. In some circumstances, licensees may delete portions of network program content in order to insert local commercial announcements, but notify the network of the deletions. If information coming to the attention of the Commission indicates that this is a frequent practice, (Footnote 1) the Commission will consider, on the facts presented, whether the licensee has subordinated the public’s interest in viewing or hearing programs in their entirety to the licensee’s private interest in maximizing the sale of commercial time.
Action of the Commission March 2, 1973. Commissioners Burch (Chairman), Robert E. Lee, Johnson, H. Rex Lee, Reid, Wiley, and Hooks. Sent to all broadcast licensees.
Footnote 1: As in the case of the three Vegas TV stations, which I first brought to the attention of the FCC.)