Ethel C. Hale and W. Paul Wharton v. Federal Communications Commission, Ksl, Incorporated, Intervenor

425 F.2d 556, 18 Rad. Reg. 2d (P & F) 2014, 138 U.S. App. D.C. 125, 1970 U.S. App. LEXIS 10703

Opinions

PER CURIAM:

This statutory review proceeding under the Federal Communications Act, 47 U.S.C. § 151 et seq., relates to the Commission’s renewal, without an evidentiary hearing, of the radio broadcasting license of KSL-AM, a clear channel station broadcasting throughout the Salt Lake City area.¹ Section 309(a) of the Act authorizes renewal only upon the Commission’s finding that the “public interest, convenience, and necessity” would be served thereby. Appellants, individual residents of the Salt Lake area, had filed with the Commission letters protesting renewal, and requesting that the matter be set down for hearing pursuant to Section 309(e) of the Act, which reads in part:

If, in the case of any application to which subsection (a) of this section applies, a substantial and material question of fact is presented or the Commission for any reason is unable to make the finding [that the public interest would be served], it shall formally designate the application for hearing * * *.

The Commission, however, determined that there were no substantial questions of fact requiring resolution by means of a hearing, and that it was able to make a public interest finding without the aid of a hearing.

The two matters which require the illumination of a hearing, so appellants assert, are (1) the quality and fairness of the licensee’s programming and (2) the impact upon the public interest of the concentration of ownership in the intervenor of communications and other business interests.² As to the first, we have examined carefully the assertions made in appellants’ letters to the Commission, and we find them far short of the kind of factual allegations which were brought forward by the protestants in United Church of Christ, note 2 supra. Mainly appellants have attempted to establish that KSL-AM has been broadcasting in violation of the FCC’s “fairness doctrine.” That doctrine, relating to the broadcasting of controversial issues of public importance, requires that a station’s programming present the several viewpoints that have developed around such issues. Its concern is with the scope of coverage of the station’s total programming.³

To establish a violation of this doctrine, appellants must show that specific programs have dealt with controversial issues partially, and, if so, that other programs on the station have not balanced the coverage by presenting the alternative viewpoints.⁴ While the doctrine does look to the general balance of a station’s programming, proof of a violation must be based on quite specific facts:

Where complaint is made to the Commission, the Commission expects a complainant to submit specific information indicating (1) the particular station involved; (2) the particular issue of a controversial nature discussed over the air; (3) the date and time when the program was carried; (4) the basis for the claim that the station has presented only one side of the question; and (5) whether the station had afforded, or has plans to afford, an opportunity for the presentation of contrasting viewpoints.⁵

When viewed against this not unreasonable standard, it cannot be said that appellants’ allegations present material questions of fact with respect to fairness doctrine violations, or the calibre of programming generally, that would require a hearing.⁶

The second issue raised by appellants is of more substance. It rests upon the claim that KSL-AM is part of a business conglomerate so constituted as to create an undue concentration of business and broadcasting influence in the Salt Lake City area communications market. We perceive no disputed factual issues regarding the existence of the conglomerate structure. Those facts, set out in the margin,⁷ are agreed upon by the parties. The policy questions they raise are applicable to the communications industry as a whole, and are not peculiar to one unit of it.

Appellants do assert that this particular concentration has had ill effects on the communications media in Salt Lake City, and is thus not in the public interest. But here again, to merit a hearing under Section 309(e), appellants must go beyond generalization and allege some specific instances of injury in the immediate context of the intervenor’s operations, not merely that it is unwise for newspapers to be under common ownership with radio and television interests, and for both to be part of a broader business combine. In two recent opinions, involving the license renewals of WCCO-AM ⁸ and KRON-FM,⁹ the Commission designated the renewal applications for hearing after the parties protesting the renewals had alleged, in the case of WCCO, that the conglomerate was using the economic power of its newspaper to obtain unique sports events broadcasting rights for its television station and, in effect, to subsidize advertising for its television station; and in the case of KRON, that the conglomerate was using the economic power of its television station to subsidize the subscription campaigns of its newspaper. Appellants hei’e have not made such specific allegations.¹⁰

Appellants essentially argue that the fact of the concentration, without further showing, is enough to require a hearing to determine whether the license renewal would serve the public interest. This is in reality a challenge to the wisdom of the Commission’s existing multiple ownership rules,¹¹ which have allowed the granting of licenses to conglomerate structures of the kind involved here. Thus it is that, in the context of this particular renewal proceeding, appellants seek a hearing to effectuate an overhaul of the Commission’s general policy that multiple ownership and resulting concentration are not per se against the public interest. The Commission has, however, embarked upon rule-making in this very area of multiple ownership of AM, FM, and TV operations, 33 Fed.Reg. 5315; and it has initiated investigations into conglomerate ownership. Dismissing informal renewal protests very similar to those made by appellants, the Commission had this to say:

We believe that, in view of this showing, there is no basis for ad hoc action against the licensee on grounds of undue concentration of control of media of mass communications. Rather, any actions in this area as to a licensee such as this would be appropriate only in the context of overall rule-making proceedings. In this connection we point out the outstanding inquiry on conglomerate ownership and the specific rule-making proceeding, FCC Docket No. 18110.¹²

There is a rational foundation for the Commission’s position that a basic change in policy such as appellants here seek is better and more fairly examined and considered in rule-making proceedings, where the inquiry can be thorough and where all interested parties can participate. Appellants’ protests seem to us to assert that undue concentration of communications media has a tendency towards adverse impact on the public interest which warrants a policy of flat prohibition without reference to whether there are incidental injuries in fact. But this is the very question which the Commission is presently pursuing in actual rule-making and in investigations looking toward rule-making. That pursuit may be more effectively and properly carried on there than by setting this renewal application down for hearing with a view to a change in policy with respect to this particular applicant.

Affirmed.

Footnotes

1

. Intervenor KSL, Incorporated, owns, in addition to KSL-AM, television and FM licenses in Salt Lake City which were renewed at the same time. The initial protest by appellants was directed in terms only against the AM renewal, although in this court appellants, now represented by counsel for the first time, appear to assume that the validity of the other two license renewals is before us. We do not think it important to resolve this ambiguity, since the disposition we make of the AM protest would apply to the TV and FM licenses as well.

2

. The intervenor, but not the Commission, urges upon this appeal that appellants are without standing to complain, either before the Commission or in this court, of the license renewal. AVe think the Commission’s position here reflects the more prescient reading of our opinion in Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994 (1966).

3

. The fairness doctrine deals with the broader question of affording reasonable opportunity for the presentation of contrasting viewpoints on controversial issues of public importance. * * * [T]he licensee, in applying the fairness doctrine, is called upon to make reasonable judgments on the facts of each situation — as to whether a controversial issue of public importance is involved, as to what viewpoints have been or should be presented, as to the format and spokesmen to present the viewpoints, and all the other facets of such programming.

FCC., Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed.Reg. 10415, 10416, (1964).

4

. Appellants claim their inability to survey KSD-AM’s general programming is due to the fact that the station does not publish a daily log of its programming in any newspaper. Such logs, however, are required to be kept by the licensee and could have been made available upon request. See 47 C.F.R. §§ 73.111-.116.

5

. FCC., supra note 3, at 1041G.

6

. It is not without significance that of the three Commissioners who would have set the matter for hearing, only one purported to think that the individual programming performance of the licensee needed to be pursued. His primary concern, as it was the exclusive one of the other two, was with the broader policy considerations inherent in the undisputed concentration of ownership and the mingling of newspaper and radio-television interests.

7

. Appellants, in their brief, offer the following uncontested description of the conglomerate’s holdings within the Salt Lake City market:

* * * KSL, Inc. is owner of TV-AM-FM broadcast licenses in Salt Lake City. KSL is affiliated with the Col-. umbia Broadcasting System. The TV license is of the vhf type, one of three vhf stations in Salt Lake City. The AM station is one of the few so-called clear channel stations in the country. From its base in Salt Lake City, KSL-AM has a service area that blankets 11 western states. KSL, Inc. is a corporate subsidiary of Bonneville International Corporation which, in turn, is wholly owned by the Mormon Church. In addition to KSL-TV-AM-FM in Salt Lake City, the Church also owns Brigham University and, through the University, an educational TV-FM complex at Provo, Utah.

Beyond its broadcasting interests, the Church is also ultimate owner of a number of mass publications, including one of the two metropolitan dailies in Salt Lake City, the Deseret News.

8

. 16 F.C.C.2d 943 (1969); 17 F.C.C.2d 290 (1969).

9

. 16 F.C.C.2d 882 (1969); 17 F.C.C.2d 245 (1969).

10

. Compare Joseph et al. v. FCC, 131 U.S. App.D.C. 207, 404 F.2d 207 (1968), where the appellants had presented “detailed reasons why the assignment [of a license] was not in the public interest.” Moreover, there the Commission had failed to find that the public interest would be served. The panel remanded for the making of such a finding or the setting of the matter for hearing.

11

. 47 C.F.R. §§ 73.35, 73.240, 73.636.

12

. Commission letter of November 25, 1969, to protestants of renewal of the Post-Newsweek Stations WTOP-AM-FMTV in the Washington, D. C. area. (FCC 69-1312 38959). It is of interest to note that no dissents were recorded to this disposition, perhaps reflective of the fact that now the Commission is seriously engaged in a sweeping policy review.