With the bitter financial interest and syndication rules fight staggering to a conclusion, tv execs can expect a new donnybrook to erupt in 1991 over another time-honored federal broadcast regulation: the primetime access rule.

PTAR, which dates from September 1975, requires network affiliates in the top 50 markets to set aside one hour of programming each night for off-net fare. The rule was originally designed to limit network dominance by encouraging the development of local and pubaffairs programming, but in reality PTAR has spurred an industry of national firstrun syndication firms churning out gameshows such as “Family Feud” and “reality” programs such as “Inside Edition.”

For more than a decade and a half, PTAR has been considered sacrosanct by D.C. bureaucrats. Not even Reagan-appointed Federal Communications Commission Chairman Mark Fowler – dubbed the “mad monk of deregulation” during his tenure in the mid-1980s – could muster the nerve to challenge the primetime access rule.

However, given the fundamental change in tv viewership of late (i.e., the continued erosion of network viewership, the growing cable audience and the VCR boom), it was perhaps inevitable that PTAR would come under scrutiny.

In fact, conventional wisdom in D.C. holds that the networks themselves might have launched a frontal attack on PTAR long ago, had they not been preoccupied with overturning the finsyn rules.

As it turned out, the webs didn’t have to fire the first volley. It was done for them last April a D.C.-based firm called First Media Corp., the owner of CBS affiliate WCPX-TV Orlando. In a petition to the FCC, First Media called for complete elimination of PTAR on the grounds that the regulation has outlived its usefulness.

First Media argued that programming scarcity – the rationale for PTAR when it was adopted – no longer exists.

The company backed up its claim by reminding the FCC of a 1987 commission decision overturning the Fairness Doctrine, the rule that required broadcasters to air both sides of a controversial issue. The FCC tossed out the Fairness Doctrine on the grounds that the explosion in video programming options had rendered it unnecessary. First Media reasoned that if the Fairness Doctrine was obsolete, the same should be said for PTAR.

First Media’s case was bolstered two months ago when the Walt Disney Co. launched a PTAR challenge of its own. Disney asked the FCC to change the reg to allow network affils to air off-net reruns in the 7 to 8 p.m. access slot. Under the Disney request webs would still be prevented from scheduling all four hours of primetime.

Full-court stall

FCC commissioners have responded to both petitions with a full-court stall, claiming that they have been too busy with finsyn and cable-rate regulation matters. But the commission can’t delay action indefinitely; FCC Chairman Al Sikes conceded that point recently when he said PTAR would be addressed head-on in 1991.

It’s no secret that a majority of FCC commissioners, including Sikes, strongly support retaining PTAR. The trick is for the panel to justify its decision in a way that withstands judicial review – a high-wire act made more difficult by the earlier commission decision to abandon the Fairness Doctrine.

“The scarcity argument places the FCC in a real box,” says Andy Schwartzman, head of the D.C.-based public-interest law firm Media Access Project. Schwartzman says the commission could justify retaining PTAR by simply reversing its earlier decision on the Fairness Doctrine. Such a scenario, however, is “unlikely,” he says.

More likely, the FCC will muster an argument in support of PTAR that barely passes judicial muster, predicts Schwartzman. “Experience tells me that the amount of justification the FCC needs is very minimal,” he says.

If, however, the courts buy First Media’s argument that PTAR can no longer be justified, the FCC will be “hard-pressed” to defend a whole slew of regulations, says Schwartzman. These include broadcast-cable cross-ownership restrictions, “equal time” regs imposed on broadcasters during an election year, and the broadcast licensing renewal system itself.

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