First Amendment applies even in Delaware


The FCC has turned down a license renewal challenge to WHYY-TV (PBS) Wilmington, DE (Philadelphia, PA) from the City of Wilmington. The city had charged that the station was too focused on Philly and failed to serve its city of license.

City officials had been particularly upset by the station’s cancellation of its daily, hour-long “Delaware Tonight,” substituting a weekly half-hour program “First” focused on Delaware. WHYY did not dispute that it had reduced its Delaware programming, but pointed to the benefit to all of its viewers from its national programming and children’s programming. It also noted that it did indeed broadcast programming that addressed local issues in Delaware, including pre-election debates and forums.

“The Commission is prohibited by the First Amendment to the United States Constitution and Section 326 of the Communications Act of 1934, as amended, from censoring programs or from interfering with freedom of expression in broadcasting.  The choice of what is or is not to be covered in the presentation of broadcast news is a matter committed to the licensee’s good faith discretion.  Although every licensee has an obligation to present programming which is responsive to the problems, needs and interests of its service area, it is the responsibility of, and within the discretion of, each individual licensee to select the problems, needs and interests to be covered, as well as the particular programs to address those interests.  Additionally, the Commission has specifically noted that programming not produced in or targeted at a local community may nonetheless serve the needs and interests of the community. Indeed, the issues selected by a licensee to be addressed may be determined by the interests and nature of its audience and the availability of other program services, including national programs.  Because of this broad programming discretion allotted WHYY, the shift from ‘Delaware Tonight’ to ‘First,’ a shorter, less frequent locally-targeted program, does not violate any Commission rule or policy. Therefore, absent a showing that there has been an abuse of discretion or a violation of our Rules, the Commission will not substitute its judgment for that of the licensee,” wrote Barbara Kreisman, Chief, Video Division, FCC Media Bureau, in rejecting the City of Wilmington objection.

Kreisman also rejected the city’s claim that WHYY was in violation of the Main Studio Rule, since a city attorney, by his own statement, viewed and copied documents from the station’s public file at its offices in Wilmington. While WHYY has a larger staff in Philadelphia, the station maintains a Wilmington phone number and informed the FCC that it employs eight people at the Wilmington studio.

RBR-TVBR observation: As we noted when the City of Wilmington filed its objection in December, the First Amendment came into play and the city lost its argument. Because broadcasting signals do not observe state boundaries, it is unavoidable that people in a small state like Delaware might feel slighted as a full-power station tilts its programming to the adjacent large state where far more of its viewers reside.