In re Application of JOHN POOLE
BROADCASTING CO., INC., AND KBIQ, INC.. (ASSIGNORS) AND BONNEVILLE
INTERNATIONAL CORP. (ASSIGNEE) For Assignment of Licenses of Station KBIG,
Avalon,
File Nos. BAL-6373 and BALE-1108
FEDERAL COMMUNICATIONS COMMISSION
16 F.C.C.2d 458 (1969); 15 Rad. Reg.
2d (P & F) 609
RELEASE-NUMBER: FCC 69-118
February 7, 1969 Adopted
BY THE
COMMISSION: COMMISSIONERS BARTLEY AND JOHNSON
DISSENTING AND ISSUING STATEMENTS; COMMISSIONER COX DISSENTING;
COMMISSIONER H. REX LEE CONCURRING AND ISSUING A STATEMENT.
[*458] 1.
The Commission has before it for consideration the above-entitled
applications.
2. The proposed assignee, a wholly owned
subsidiary of the corporation of the president of The Church of Jesus Christ of
Latter-Day Saints (parent corporation) is the licensee of stations KMBZ-AM and
KMBR-FM, Kansas City, Mo., and has an interest in or controls the following
broadcast stations: an AM, FM, and TV combination in Salt Lake City, Utah,
Idaho Falls, Idaho, and Seattle, Wash., and a commercial FM and an
international short wave station in New York, N.Y. Additionally, Brigham Young
University, owned by The Church of Jesus Christ of Latter-Day Saints, is
licensee of noncommercial stations KBYU-TV and KBYU-FM, Provo, Utah.
3. The Church of Jesus Christ of Latter-Day
Saints through its subsidiaries owns 4.79 percent of the Times Mirror Corp.
which has long been controlled by the
[*459]
4. The assignee has adequately
met the Commission's programming survey requirements. In addition to interviewing numerous community leaders in the
5. As a result of these interviews and the data
from its professional audience survey, assignee has determined that there is a need
in the Los Angeles and Avalon areas for expanded local and national news and
adult oriented programming in which news, public affirs, educational, religious
and other public service programming will be well balanced with adult music
throughout the broadcast day. The
proposed general format of both stations, except for the early Sunday morning
periods which contain religious and public affairs programs, is standard
popular music interspersed with 5 minutes of news and/or weather per hour and
anywhere from one to three 1-minute vignettes described as "public
affairs," "educational" or "religious programs."
Ninety-four of these programs per week are proposed for the AM and 194 per week
for the FM, under the following titles and program types: Devotional, (R.);
Educational News (Ed.); Library Report (Ed.); Better Business Bureau (I); Food
Tips (I); Editorial (I).
6. Assignee states that the programming of
KBIG-FM will duplicate the programming of KBIG-AM for "* * * 6 hours a
day, but not to exceed 49 percent of KBIG-AM broadcast time." There was no
duplication by KBIG-FM during the composite week, but assignor states that as
of March 18, 1968, KBIG-FM has been duplicating the programming of KBIG-AM
during the hours of sign-on to 10 a.m., Monday through Friday only.
7. The proposed programming compared with the
past programming for each of the stations is as follows:
PAST
|
|
|
|
Percent
of total
time on air |
|
|
Percent
of total
time on air |
|
|
|
Hours |
Minutes |
Hours |
Minutes |
|
||
|
|
|
|
|
|
|
||
|
KBIG-AM |
|
|
|||||
|
News |
6 |
7 |
7.4 |
4 |
4 |
3.1 |
|
|
Public affairs |
|
||||||
|
All other programs, exclusive of entertainment |
|
||||||
|
and sports |
8 |
37 |
10.4 |
|
|
||
|
Total broadcast hours per week |
|
||||||
|
|||||||
|
82 1/2 |
|
|
130 |
|
|
||
|
|
|
PROPOSED |
|
|
|||
|
News |
6 |
18 |
9.0 |
10 |
30 |
5.25 |
|
|
Public affairs |
|
||||||
|
1 |
6 |
1.5 |
1 |
10 |
.69 |
|
|
|
All other programs, exclusive of entertainment and sports |
|
||||||
|
|||||||
|
|||||||
|
|||||||
|
2 |
49 |
4.02 |
4 |
52 |
2.89 |
|
|
|
Total broadcast Hours per week |
|
||||||
|
|||||||
|
|||||||
|
70 |
|
|
168 |
|
|
|
|
[*460]
8. The normal commercial
limitation for the proposed operation of both stations is 18 minutes per hour
which may be exceeded during: (1) political campaigns; (2) special programming
which preempts regularly scheduled advertising; (3) public emergencies; (4)
equipment failures; (5) suspension of broadcasts; and (6) special community
events. Concerning the frequency of the
expected overages and the limits which would then apply, assignee states as
follows:
BIC will
exert its best efforts to assure that in the event any of the above-enumerated
exceptions occurs, KBIG or KBIG-FM will not broadcast more than 20 minutes of
commercial matter per hour. However,
should an exceptional circumstance arise where BIC believes it would be in the
best interest of the public in the southern
9. The stations being acquired by the assignee
are located in the
10. Accordingly, the above-entitled applications
Are granted.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCURRING
OPINION OF COMMISSIONER H. REX LEE
I join
the majority decisions to approve the transfer of WTVM (TV), Columbus, Ga. and
WTVC(TV), Chattanooga, Tenn. to Fuqua Industries, Inc.; of WRTH, Wood River,
Ill. to Avco Broadcasting Co.; and KBIG, Avalon, Calif. and KBIG-FM, Los
Angeles, Calif. to Bonneville International Corp.
I take
such action because the proposed transfers conform to existing Commission laws,
regulations and public interest standards.
The FCC, through orderly procedure, has established rules and guidelines
in the realm of media concentration.
But these rules do not go far enough.
They do not specifically spell out the line of public interests which
broadcasters may serve in the fulfillment of substantial public objectives.
In view
of this situation, a hearing is not deemed necessary. The scope of questions addressed to media concentration is
narrowly confined by FCC multiple ownership rules. In these cases, this results in neither the public interests nor
the interests of fairness in administrative due process being served by an
evidentiary hearing. Even in such an
examination, the lack of standards makes it difficult for the interested
parties, including the public, to present evidence, and for the Commission to
make a sound judgment. The argument is
noted that under existing Commission procedures, the hearing process is
frequently the equivalent of a denial -- if for no other reason than the amount
of time and expense consumed by it. It
is hoped these two hardships of the hearing process can be alleviated through
the development of new procedural standards which may be applied when needed.
Nevertheless,
there is concern in various quarters about the growth of media
concentration. The political, social and
economic influence, concentrated in a few broadcast facilities, raises fears --
a dimension of which cannot be dispelled by the Commission's multiple ownership
rules.
The
FCC's examination of this problem must keep pace with the changing complexion
of the broadcast industry. In this
period of change, the FCC is in transition between its existing rules and the
formulation of new standards. This
means that parties to Commission transfer proceedings also find themselves in a
difficult position. It is [*466] often impossible for them to prior
assess whether their transfer proposals will constitute a prohibited media
concentration. In fact, there is
virtually no way of knowing what is or is not prohibited. These difficulties are magnified because the
FCC lacks adequate standards by which to judge the nature of these new
developments. This not only creates
problems for the Commission, but causes confusion within the broadcasting
industry.
Therefore,
I am pleased that the Commission is issuing a public notice of inquiry. It is hoped that the inquiry will result in
the formulation of more precise standards which will better serve the public
interest, as well as afford the broadcasting industry an opportunity to see
where it stands.
The
Commission should consider the findings which emerge from such an inquiry in
processing normal filings. For
certainly, if standards are derived by which a more meaningful test of public
benefits can be proved, the course of future actions will be carefully
distinguished. In sum, I stress that I
intend to examine future cases very carefully to determine what public benefits
will result.
DISSENTING
STATEMENT OF COMMISSIONER ROBERT T. BARTLEY
In the absence
of rules prohibiting continuing concentration of the broadcasting structure,
the only alternative is through the hearing process where case law can be
applied. The mere pendency of an
inquiry will not serve to halt the present trend. In the interim, I believe we should institute hearings where
concentration is increased.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
Bonneville
International Corp. receives approval today from this Commission to add to its
stable of industrial and mass media properties an AM radio station, and an FM
radio station, in the second largest market in the
This
action is taken without a public discussion of the principal issues raised by
this case: the conflicts with the public interest in granting ever-increasing
mass media power -- with all its economic, political, and social implications
-- to large industrial conglomerate corporations in the United States, in this
case an industrial conglomerate that is inexorably intertwined with a religious
sect, the Mormon Church. n1
n1 Much
of the general discussion in the recent KSL license renewal reconsideration is
also relevant here. See, KSL, F.C.C.
69-40 (1969).
[*461]
Originally not deigning to issue even a skeleton order in the case, the
majority has now prepared an opinion, and I have revised this dissenting
statement accordingly. It has now
provided a dry recitation of the corporation's undistinguished programming
proposals, its skimpy local surveys, and its commercial content -- 18 minutes
per hour, except for five categories of exceptions. But after reciting some of the church's other properties, its
discussion of the ownership issues is only to be found buried in two short
sentences in the last paragraph. The
majority's analysis reads, in its entirety, as follows:
The
stations being acquired by the assignee are located in the Los Angeles market
and the acquisition thereof present [sic] no question of regional or national
concentration of control. A grant of
the applications is consistent with the Commission's multiple ownership rules
and the policies established there-under over the past several years.
It might
have been better had it stuck with issuing no opinion at all. Apparently the Commission's position on
ownership is now so bankrupt that past errors must serve as the structural
braces for actions in the public interest.
How
ironic that this Commission has also, today, issued a notice of general inquiry
into the question of conglomerate ownership of the mass media. Inquiry into the ownership of broadcast
stations by persons or entities with other business interests, docket No.
18449, F.C.C. 69-117. In that action
the Commission takes note of the fact that –
There is
today a heightened interest generally in the problems posed by conglomerate
merger trends, and we believe it appropriate to focus on such problems as may
be presented in the broadcast field by conglomerates * * *.
* * *
It [the
Commission] will * * * look for possible hazards to the fair and free
presentation of material by the stations owned by conglomerates * * *,
reciprocity arrangements in advertising, lack of licensee responsibility due to
inadequate supervision by top officials, siphoning of broadcast profits for
other operations or acquisitions, increased leverage either in the broadcast or
non-broadcast fields, and the possible impediments to technological
developments.
The
foregoing is simply a skeletal outline of the Commission's interest, with a few
examples to point up its scope. It is,
we stress, a broad-ranging inquiry to encompass the possible social, economic,
and political consequences in the broadcast field of the conglomerate trend and
of the licensing of broadcast stations to any other person or entity with other
large-scale business interests.
Whatever
all this language may mean, it is obvious that the Commission is taking public
notice of the fact that "grave doubt [exists] as to whether such
assignments are in the public interest."
The last
time this Commission issued a general inquiry into ownership matters and the
same day approved a case seemingly contrary to the standards newly proposed it
was reversed by the U.S. Court of Appeals:
The Communications Act requires the Commission to designate
an application for hearing if a substantial and material question of fact is
presented or if the Commission is unable, for any reason, to find that the
public interest, convenience, and necessity would be served by granting the
application. The public welfare
requires the Commission to provide the "widest possible dissemination of
information from diverse and antagonistic sources" and to guard against
undue concentration of control of communications power. The Act expressly prohibits assignment of a
broadcast license "except upon application to the Commission and upon
finding by the Commission that the public interest, convenience, and necessity
will be served thereby."
* * *
[*462]
Assuming for sake of discussion that in a proper case such finding of
public interest may be implied, certainly that finding cannot fairly be
inferred when the decision was made without a hearing or any statement of
reasons, and at a time when the Commission's contemporaneous action revealed at
least grave doubt as to whether such assignments are in the public
interest. For on the same day, and in
the same Commission meeting at which the WFMT (FM) assignment was approved, the
Commission adopted a notice of proposed rule making which would prohibit such
an acquisition in the future as on its face contrary to the public interest.
Joseph v. FCC, 13 P. & F. Radio Reg.
2116, 2121-22 (D.C. Cir. 1968). I have
considerable difficulty distinguishing the spirit -- if not the literal holding
-- of that case from the one before us.
At the
very least, I do not believe it is adequate to say, as has Commissioner Rex Lee
in a separate opinion concurring in each of today's decisions, that [The]
proposed transfers conform to existing Commission laws, regulations, and public
interest standards. The FCC, through
orderly procedure, has established rules and guidelines in the realm of media
concentration. But these rules do not
go far enough.
* * *
[There]
is concern in various quarters about the growth of media concentration. The political, social and economic
influence, concentrated in a few broadcast facilities, raises fears -- a
dimension of which cannot be dispelled by the Commission's multiple ownership
rules.
* * *
[P]arties
to Commission transfer proceedings also find themselves in a difficult
position. It is often impossible for
them to prior assess whether their transfer proposals will constitute a
prohibited media concentration. In
fact, there is virtually no way of knowing what is or is not prohibited media
concentration. In fact, there is
virtually no way of knowing what is or is not prohibited. These difficulties are magnified because the
FCC lacks adequate standards by which to judge the nature of these new
developments. This not only creates
problems for the Commission, but causes confusion within the broadcasting
industry.
The
parties before this Commission have the burden of proving to the satisfaction
of a majority of the Commissioners that the public interest, convenience, and
necessity will be served by the transfer of license, section 310(b). The burden is not upon the seven of us, or
the occasional protester, to prove that the public interest will be somehow
harmed.
I would
be the last to urge that all the evidence is in and that conclusions are
irrefutable with regard to the consequences of trends in media ownership upon
the public interest in a Nation dedicated to informed self-governing by the
people. That is why I support our
general inquiry. I probably feel as
deeply as any Commissioner this agency's lack of fully adequate data and
analysis for addressing these issues.
But that does not remove from our shoulders the responsibility for
casting votes. We must go on the best
we have.
Dr.
Wilbur Schramm has spoken of other threats from the mass media by saying they
were "[dangers] to which we need not expose our children any more than we
need expose them to tetanus, or bacteria from unpasteurized milk." That is
the way I feel about the threats to our deomcratic society from the ownership
of the mass media -- by local media monopolies, by regional concentrations, by
multimedia owners, by chain and multiple-station owners, and by conglomerate
corporations. There is evidence that
these threats are real and with us.
[*463] See, for example, the
material cited in the text and footnotes of the ABC-ITT opinions and the Chet
Huntley conflict-of-interest case.
ABC-ITT Merger, 7 F.C.C. 2d 245, 278 (1966); 7 F.C.C. 2d 336, 343
(1967); National Broadcasting Co., 14 F.C.C. 2d 713, 718, 741 (1968). The
arguments about the benefits of such ownership have come to me principally, if
not exclusively, from those whose personal or corporate economic interests were
served thereby. I would welcome an
opportunity to examine the evidence and arguments of benefits that might be
mustered by some intellectually competent and truly independent source. I hope we will get such from our inquiry.
There is
no irremediable harm that can possibly come to our Nation by failing to approve
applications. Listeners and viewers
will continue to get service from someone's operation of the stations in
question. (And even if they did not,
where there are competing media in the larger cities, one might argue that such
a result would not be the ultimate national disaster either.) If, as a result
of our inquiry, we should decide that the benefits of such ownership outweigh
the burdens and the risks -- that is, that the public interest is served thereby
-- then there will be time enough for these applicants before us to make new
applications to us for these, or other, properties. There may be some private harm, yes. Stock prices or dividends may even be a little lower than they
might otherwise be for the corporations involved -- though I doubt it. But private interest is not our statutory
Polaris.
But
there is irremediable harm that may come to the public interest from our
approval of these applications. Properties
once acquired are only rarely surrendered involuntarily. If that is not a principle of law or
economics, it comes close to being a law of politics. If, as a result of our general inquiry we should decide that
there are very persuasive reasons why today's actions should not have been
approved, we are unlikely to have much luck unscrambling the omelet.
The
evidence before me is sketchy, but it is unquestionably enough to bring me to
the conclusion that the parties have not carried their burden of proving to me
that the public interest is served by this transaction. I would be willing to reconsider the matter
after our inquiry. I am unwilling to
put my name to a public interest finding today. And if there were any more doubt in my mind, as there appears to
be in the mind of Commissioner Rex Lee, I would have been inclined to vote
"abstain" rather than "concur" -- if I correctly interpret
his opinion. But he is a gentleman of
uncommon intelligence, courage, and commitment to the public weal, and there is
no doubt in my mind that he has, and will continue to, vote his conscience on
these matters.
Having
said all this, I would like to provide a brief recounting of the interests of
the applicant in order to more fully demonstrate the problems I believe this
particular case raises.
Bonneville
International Corp. is a subsidiary of Deseret Management Corp., which is a
subsidiary of The Corporation of th8e President of the Church of Jesus Christ
of Latter-day Saints (the Mormon Church).
The Mormon Church already has substantial media interests in
In
addition to its present and newly-acquired media interests in Los Angeles, the
Mormon Church also owns or has substantial interests in the following media
properties (with a heavy emphasis in the Rocky Mountain area): KSL-TV-AM-FM,
Salt Lake City, Utah; the Deseret News, a daily newspaper in Salt Lake Ciyt;
KID-TV-AM-FM, Idaho Falls, Idaho; KIRO-TV-AM-FM, Seattle, Wash.; KMBZ-AM and
KMBR-FM, Kansas City, Mo.; WRFM, New York, N.Y.; educational stations
KBYU-TV-FM, Provo, Utah; and even one of this country's three privately-owned
international short wave stations, WNYW, New York, N.Y. The Deseret News and the Salt Lake Tribune
jointly own the Newspaper Agency Corp., under a joint operating agreement of
the type recently attached by the Department of Justice. The Salt Lake Tribune has a substantial
interest in Salt Lake City TV station KUTV-TV.
This station, in turn -- with the third TV station, KCPX-TV and KSL-TV
-- has formed a triple joint venture to operate the Salt Lake City CATV
franchise. For a fuller detailing of
the Mormon Church's implications in media ownership in Utah see, "Hearings
Before the Subcommittee on Antitrust and Monopoly of the U.S. Senate Committee
on the Judiciary," The Failing Newspaper Act, pp. 328-69; 892-905 (1967);
and Commissioner Cox's dissenting opinion in the Commission's renewal of the
KSL licenses, F.C.C. 68-1005 (1968).
The extent of the Church's national media power, especially in the
western regions, is obvious from the mere listing of these properties and
business relationships.
But the
Mormon Church is not only a media baron of substantial proportions, it is also
a significant industrial conglomerate corporation. Its holdings are reported to include a 50 percent interest in the
Utah Idaho Sugar Co. (beet sugar); its $20 million investment in the Los
Angeles Times; a 25 percent interest in Zion's Cooperative Mercantile
Institution (a Salt Lake City department store); Hotel Utah and Hotel Temple
Square in Salt Lake City; Beneficial Life Insurance Co. (insurance in force of
$535 million); Home Fire Insurance Co.; Deseret Book Store; Deseret Farms,
Inc.; Deseret Farms of Florida, Inc.; Zion's Securities Corp. (real estate
management); a trucking company; a pineapple plantation; three large ranches in
Canada; a total of 600 farms, 40 mills, factories, and salvage stores; a 6,500
acre sugar plantation in Hawaii; and 360,000 acres (another source indicates
700,000 acres) in Florida. [Material in
this part is drawn from Mullen, "The Latter Day Saints," 205-07
(1966); Whalen, "The Latter-day Saints in the Modern World," 152-53
(1964); and Turner, "The Mormon Establishment," 102-36, 267-94
(1966).]
[*465]
This combination of media and other economic power raises a final issue
-- the domination of a city, State, and region by a particular religious sect. The issue is subtle -- it is not occasioned
simply by church ownership of property or a media outlet -- rather the question
arises because of the accumulation of power by the Mormon Church, and the
increase of that power by actions of this Commission.
The
media cross-ownership in Los Angeles, the concentration of control over media
nationally, the accumulation of conglomerate economic and political power,
combined with a practicing religious group strongly indicate to me that this
application should not be approved without the fullest investigation into the
present holdings of the Mormon Church.
I
dissent.