140. Action Memorandum From the Director of the Policy Planning Staff (Lord), the Legal Adviser (Leigh), and the Special Assistant to the Under Secretary for Security Assistance (Lewis) to Under Secretary for Political Affairs (Habib)1 2
Direct Broadcast TV Satellites (DBS)
The Problem
In March, the UN Outer Space Committee’s Legal Subcommittee will resume negotiation of principles concerning the use of direct broadcast satellites (DBS) for broadcasting television programs internationally. Since such satellites will not require the large ground antennas needed by present communications satellites, the prospective emergence of DBS has raised the prospect of one country’s beaming television programs directly into homes in another without the receiving country’s consent.
An already substantial and still growing majority of members of the Legal Subcommittee favors adoption of a principle requiring the prior consent of countries intended to receive television broadcasts via DBS. In view of our longstanding support of the free international flow of information and ideas, we have thus far opposed adoption of the “consent principle” (although we have made clear our willingness to undertake advance consultations).
This issue will come to a head at the Legal Subcommittee’s March meeting, and we have been reviewing our approach with the other interested agencies—the FCC, USIA, Board for International Broadcasting, Office of Telecommunications Policy, NASA, AID, and the NSC Staff.* The uniform reaction of these agencies is that [Page 2] we cannot successfully sustain our present position.
The main considerations bearing on this problem and the options available are summarized below and reviewed in the attached paper (Tab 1). However, we are lacking one of the principal ingredients of an eventual decision—the current views of the major US television broadcasters and other key elements of the news media.
The purpose of this memorandum is to ask you to meet with a group to discuss the complex DBS issues, looking toward your approval of staff-level consultations with the corporate media. This would enable us to present the issues to the Secretary for decision; or, if the matter is held over for consideration by the next Administration, the basis for an informed decision would be ready. In this regard, an early decision would be helpful in strengthening our position in the related ITU negotiations in January described below. Indeed, our particular reason for seeking at this time a decision on consultations with the media is to help lay the groundwork for the January ITU meeting. In addition, we and a number of close allies believe that the March Legal Subcommittee meeting is the last real chance to shape the UNGA resolution on DBS. If we are to be effective we need prompt consultations, which the UK and FRG expect. Failing such consultations soon, there is a substantial risk of being isolated even from our Western Allies, without further opportunity to bring on an acceptable UNGA outcome.
Background
Countries supporting the “consent principle” in the Legal Subcommittee include not only the Soviet Union and East European countries (for obvious reasons), but also developing countries (concerned about the political, social, or cultural impact of television), and several western countries, in particular, France, Canada, and Sweden. The UK may soon join the global and European majority, and we suspect that Japan is [Page 3] prepared to do so, as well. We could wind up with only the reluctant support of the FRG.
The issue has also figured in transactions of the International Telecommunication Union (ITU), where regulatory (technical) restrictions are gradually being imposed on frequencies which might be used for broadcasting via DBS. The ITU started down this road in 1971, and the next step is likely to be taken in January, when channels in a particular band of frequencies usable for DBS will probably be assigned to specific countries for their own use (thereby precluding their use by other countries except on the basis of a specific understanding). Although the US will support a more flexible approach, this is not likely to be accepted (except possibly in our own region which includes Latin America as well as US and Canada), particularly if we maintain our well-known opposition to any form of prior consent. If a decision is reached to change our present position this might strengthen our hand in dealing with other countries in the ITU in the January negotiations.
In the Legal Subcommittee meetings in March, we could find ourselves in the profitless position of continuing to oppose the consent principle even though restrictions imposed by the ITU on the use of frequencies will have eroded the practical significance of our position. The main options are to maintain our present form of consent principle (for example, licensing* by the receiving country); or to let the problems be resolved against us through the continued [Page 4] narrowing of technical possibilities by the ITU, a course which would nevertheless require some formal recognition of these practical restraints on DBS in the Legal Subcommittee.
We would not wish any Changes in our position on DBS to be construed as reflecting a lessening of our basic commitment to the free flow of information and ideas. Therefore, we would in any event continue to oppose other proposals before the Legal Subcommittee (or possibly the ITU) which would, for example, seek to restrict the content of television programs via DBS (an approach which could, in effect, be viewed as requiring prior censorship of television broadcasts). Indeed, we should be able in the Legal Subcommittee to defeat such proposals as they relate to DBS if for example, we were prepared to agree to the licensing approach.
A further consideration is that by seeking to make the DBS issue unique and adopting a more forthcoming stance, we may be strengthened in preventing any similar issue from being successfully raised in other areas, such as short-wave broadcasting. This is of particular concern to VOA and BIB (RFE/RL). They have told us they could support a more forthcoming stance on DBS if the sui generis nature of any agreements for prior consent are clearly demonstrated. It is noteworthy that virtually all parties to this debate have established negotiation records indicating that DBS is substantially different from other forms of broadcasting.
Consultation with the Media
When the DBS issue became “hot” internationally several years ago, US media promptly and strongly expressed not only their support of the “free flow” principle but also their opposition to any approach smacking of censorship. The television networks also made clear their desire to keep their options [Page 5] open (even though none has any current plan to use DBS for international television broadcasting since it is not clear that this would be profitable).
We will need, therefore, to explain frankly what the situation is and to determine what the views of the media are at this juncture. Our strong and successful opposition to the Soviet-inspired “mass media” declaration in UNESCO and our continuing opposition to any comparable approach in the DBS matter should enhance our position. Moreover, difficulties confronting us in the ITU are already known to US broadcasters. Among the options, the licensing approach would at least represent an arrangement with which the broadcasters are familiar.
However, until consultations have been held, we cannot be sure that the media would not choose to “view with alarm” any changes in our present position, and without some understanding on the part of the media, we believe that any Administration would be reluctant to alter our present course.
Specifically we would approach representatives of CBS, NBC, ABC, and the Public Broadcasting System, for consultations, no later than the week of December 20. State representatives would be Thomas Hirschfeld and Abraham Sirkin of S/P and Ronald Stowe, of L/UNA. We would sketch out the situation facing the United States in the Legal Subcommittee of the Outer Space Committee in March and at the ITU in January, pointing out how the prospects for national allocation of DBS bands is narrowing our options and specifically what the options for choice are, with particular emphasis on our potential isolation from other countries, and the future costs of such isolation. We would sketch out in a purely illustrative way the three possible courses of action—stick with the present position, accede to some form of licensing principle, or to acknowledge formally, in some way, that the assignment of bands to national broadcasting authorities has the effect of establishing prior consent. We would simply seek and record media reactions [Page 6] for the sake of reporting to the Secretary. We would take care not to suggest any USG preference and make clear that these consultations were simply part of the policy formulation process.
A more complete analysis of the issues and options is enclosed, at Tab 1.
Recommendation:
That you meet with a small group, including the above mentioned team very soon to discuss this complex of issues, including the desirability of meeting with the media.
Approve [PH initialed]
Disapprove __________
Time
12/14 1030 am
- Source: Washington National Records Center, RG 59, L/OA Files: Lot 99 D 369, Box 12, Space—Direct Broadcast Satellites (DBS) 1976. Limited Official Use. Drafted by Gathright and Hirschfeld. A stamped notation on the memorandum indicates Habib saw it on December 8. Habib approved a meeting for December 14 at 10:30. Attached but not published is a November 15 detailed review of U.S. policy concerning direct broadcast television satellite issues. No record of the meeting was found.↩
- Habib approved the memorandum’s recommendation to convene a meeting with television industry representatives to reconsider the U.S. position concerning direct broadcast satellites.↩
- This matter does not fall within the purview of the NSC/USC’s Standing Committee on Space Policy.↩
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A principle of this type might be phrased illustratively as follows:
↩“Any broadcasting entity planning to undertake direct television broadcasting by satellite intended for reception in a country other than that in which the broadcast originates should obtain a license from the appropriate authorities recognized by such receiving country before initiating those broadcasts.”