In re Applications of RKO GENERAL,
INC. For Renewal of Licenses of Stations KHJ-AM and KHJ-FM, Los Angeles, Calif.
and
For Renewal of Licenses of Stations
KFRC-AM and KFMS-FM, San Francisco, Calif.
Files Nos. BR-22 and BRH-25; Files
Nos. BR-43 and BRH-1190
FEDERAL COMMUNICATIONS COMMISSION
16 F.C.C.2d 989 (1969)
RELEASE-NUMBER: FCC 69-236
March 13, 1969 Adopted
ACTION:
MEMORANDUM
OPINION AND ORDER
BY THE
COMMISSION: COMMISSIONER BARTLEY ABSTAINING FROM VOTING; COMMISSIONER COX ABSTAINING
FROM VOTING ON KFRC-AM AND KFMS (FM); COMMISSIONER
JOHNSON DISSENTING AND ISSUING STATEMENTS; COMMISSIONER H. REX LEE
CONCURRING IN THE RESULT.
[*989] 1.
The Commission has before it the above captioned renewal applications.
2. RKO-General has adequately surveyed the
3. The format proposals for the four stations
are as follows:
(a) KHJ,
News, 11
hours, 32 minutes, 6.5 percent.
Public
affairs, 5 hours, 2 minutes, 3 percent.
Other
nonentertainment, 6 hours, 43 minutes, 4 percent.
(b)
KHJ-FM,
News, 5
hours, 3 percent.
Public
affairs, 3 hours, 30 minutes, 2.1 percent.
Other
nonentertainment, 6 hours, 47 minutes, 4.1 percent.
(KHJ-FM
does not duplicate station KHJ-AM.)
(c)
KFRC,
News, 11
hours, 46 minutes, 7 percent.
Public
affairs, 3 hours, 37 minutes, 2.2 percent.
Other
nonentertainment, 4 hours, 26 minutes, 2.6 percent.
(d)
KFMS-FM,
News, 9
hours, 16 minutes, 7.4 percent.
Public
affairs, 2 hours, 50 minutes, 2.3 percent.
[*990]
Other nonentertainment, 3 hours, 15 minutes, 2.6 percent.
(KFMS-FM
duplicates KFRC-AM on weekends, as follows: 18 hours Saturdays and 19 hours, 15
minutes Sundays.)
4. The proposed commercial limitations for the
four stations are:
(a) KHJ
-- 18 minute per hour ceiling with no exceptions.
(b)
KHJ-FM -- 15 minute per hour ceiling with no exceptions.
(c) KFRC
-- 18 minute per hour ceiling with no exceptions.
(d)
KFMS-FM -- 8 minute per hour ceiling with no exceptions.
5. The applications have been found to be
adequate in all respects and RKO, except for the antitrust problem discussed
below, is legally, technically, financially, and otherwise qualified and we
find that a grant of the applications will serve the public interest,
convenience, and necessity.
6. There is presently pending in the U.S.
District Court for the Northern District of Ohio an action entitled
7. Accordingly, It is ordered, That the
above-captioned applications of RKO General, Inc., for renewal of licenses of
Stations KHJ-AM, KHJ-FM, KFRC-AM, and KFMS-FM Are granted, subject to the
following condition:
(1) This
grant is subject to whatever action the Commission may deem appropriate as a
result of developments and findings arising in the pending civil action of
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
KHJ-AM-FM
DISSENTING
STATEMENT OF COMMISSIONER NICHOLAS JOHNSON
The
Commission here renews the licenses of the RKO General radio stations in
This
grant is subject to whatever action the Commission may deem appropriate as a
result of developments and findings arising in the pending civil action [*991]
United States of America v. The General Tire and Rubber Co., Aerojet
General Corp., A. M. Byers Co., and RKO General, Inc. (No. 6-67-155), filed
March 2, 1967, in the U.S. District Court for the Northern District of Ohio
and, further, is subject to whatever action the Commission may deem appropriate
as a result of developments and findings arising in the pending FCC proceeding
in docket No. 16679.
This is
the first RKO General renewal to come up since the Commission added a disqualifying
issue in another proceeding involving KHJtv/.
A review of the actions involving KHJ will be helpful.
More
than 3 years ago KHJ-TV was challenged at renewal by another applicant for the
license. That case is still in hearing
although the record is closed (docket No. 16679). That applicant charged, among other things, that:
The past
broadcast record of RKO in its operation of Station KHJ-TV is unusually poor,
since it did not ascertain the needs tastes, and desires of its service area;
did not create programing to meet the needs of its service area; misused the
facility to gain profits at the expense of its service area; and violated the
public trust inherent in its broadcast license. RKO should receive a major demerit because of unusually poor past
performance. (Emphasis in original.)
Proposed
findings of fact and conclusions of Fidelity Television, Inc., in docket No.
16679 et al., p. 124, par. 41.
RKO
General, Inc., has, of course, disputed these charges. I do not imply any judgment by citing
them. My point is only that there are
outstanding unresolved questions with regard to this licensee --questions now
before this Commission.
In March
1967 the U.S. Department of Justice filed a civil complaint against General
Tire & Rubber including its subsidiary RKO General. The offenses charged included violating
section 1 of the Sherman Act:
(a) By
engaging in a combination and conspiracy to utilize reciprocity whereby the
purchasing power of all of said defendants is used to coerce and persuade
certain actual and potential suppliers of the defendants to purchase tires,
wrought iron products, advertising time, and other products and services from
said defendants, in unreasonable restraint of the aforesaid trade and commerce;
and
(b) By
entering into contracts, agreements, and understandings expressed and implied,
involving reciprocal purchasing arrangements with respect to a substantial
amount of interstate commerce whereby the defendants purchase products and
services sold by various suppliers on condition that said suppliers purchase
the products and services of such defendant or defendants, in unreasonable
restraint of the aforesaid trade and commerce.
In 1968
the examiner in the KHJ-TV case (docket No. 16679) reopened the record to
examine KHJ-TV's involvement in the allegations concerning reciprocity. (F.C.C. 68M-394). The full Commission
declined to review that action but did, on its own motion, add a disqualifying
issue against KHJ-TV in the renewal proceeding:
To
determine, in light of the evidence adduced with respect to the proceeding
issues, whether RKO General, Inc., should be disqualified or, if not, whether a
comparative demerit should be assessed against it in this proceeding.
F.C.C.
68-892, par. 6; 14 P & F Radio Reg.
2d 90, 91 (1968).
[*992]
Now the Commission renews the RKO General licenses for AM and FM radio
stations in
Nor do I
believe that this matter necessarily has been adequately examined in the KHJ-TV
proceeding. The addition of a
disqualification issue in that proceeding was preceded by the following
comment:
We
further note that Fidelity, while still wishing the Commission to make its own
investigation, obtain material from the Department of Justice, and place the
burden of going forward with the introduction of evidence on RKO, claims the
ability to prove its own case without assistance. It would therefore appear that Fidelity has already obtained
essentially the relief it seeks, save for the addition of a disqualification
issue (par. 3) id.
Our
staff has not participated in that case, and while I have not yet examined the
record the Commission should not rely solely on the ability of a private
applicant to conduct an adequate investigation of the alleged reciprocal
practices of RKO General. Normally,
when a disqualifying issue is part of a comparative hearing proceeding the
Commission's staff actively participates in the case. But in the KHJ-TV proceeding evidence on RKO General reciprocal
practices was taken under the standard comparative issue, and was limited to
its bearing on RKO General's comparative merits. The record was closed prior to the addition of the disqualifying
issue and the Commission's hearing staff did not participate.
Under
these circumstances the Commission's condition offers little guide as a future
action. A conditional grant is a
well-established, if somewhat questionable, procedure designed to avoid
prolonged deferrals on applications. But
a condition suggests that there are unresolved factual matters that might at
some future date require further proceedings or even denial. The Communications Act bars a grant under
such circumstances. 47 U.S.S. sec. 309(e) (1964). Such is the case for the license renewals of RKO General. In a not dissimilar case the Commission
first refused, but then sought Court remand to designate for hearing renewal
applications on anticompetitive issues where private parties were present to
seek Court relief if the Commission did not act. Florida-Georgia Television
Co., Inc., 13 F.C.C. 2d 53 (1968).
The
Communications Act is very express in its injunction that we must find the
public interest served by a license renewal.
When there are questions of fact involved it expressly requires us to
hold a hearing.
[*993]
We have before us a licensee that is one of the Nation's classic
examples of a conglomerate corporate broadcaster. It is one of the most politically powerful group owners. It has a TV-AM-FM in
Thus, it
would seem to me that this very ownership pattern, taken alone, would be enough
to warrant a closer look at KHJ-AM-FM's ability to meet our public interest
standards. The media ownership problem
-- conglomerates, multiple owners, multimedia, and so forth -- has recently
been receiving widespread interest and concern from many quarters -- including
the Justice Department and this Commission.
RKO raises many, if not all, of the media ownership problems. That its licenses should be automatically
renewed seems a little unusual. The
very license renewal before us is in conflict with the Department of Justice's
proposals for a given market in our one-to-a-market proposed rulemaking, in
that RKO owns not one, or even two, but three full-time properties in the
The
company has a serious antitrust suit pending against it, involving, among other
things, its use of its broadcast properties in ways violating the antitrust
laws.
Local
citizens are challenging its ownership of broadcast properties in this very
market -- KHJ-TV. It is one thing --
and troublesome enough -- to grant a multiple owner a license renewal in one
market while holding a hearing on one of its properties in another market. It is quite another to renew two properties
of a single owner in one market while holding a hearing on its third property
in that very market.
One
would think that any one of these elements -- let alone all of them together --
would be enough to warrant setting the KHJ-AM-FM license renewal for hearing. At the very least, if for administrative
reasons the Commission does not wish to hold a hearing at this time, the better
course would seem to be to hold the license renewal in abeyance until such a
KHJ-AM-FM hearing can be held. It is
impossible for me to see the legal justification or logical rationale, however,
for granting the licenses subject to some sort of "condition." If the
argument is to be advanced that RKO is somehow inconvenienced by having its
licenses held in suspension in this way, it would seem to me [*994]
to miss the mark. Our concern is
supposed to be principally directed to the public's best interest, not the licensee's
convenience.
If the
Commission action here is premised on a future thorough investigation and
evaluation of the reciprocity charges then today's renewal action would seem to
be premature. If its future actions are
only to follow automatically the results in the court case and the KHJ-TV
renewal proceeding then the Commission is abdicating its responsibility. But one cannot tell what the Commission's
intentions are from this renewal action.
I dissent.
KFRC
(AM)-KFMS (AM)
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
KFMC
(AM) and KFMS (FM) are the RKO General stations in
This
grant is subject to whatever action the Commission may deem appropriate as a
result of developments and findings arising in the pending civil action
I have
already detailed my views concerning renewal of RKO General stations in an
opinion dissenting to the renewals of KHJ-AM-FM,
The
reasons against conditional renewal for RKO's