In Re Applications of NATIONAL BROADCASTING CO., NEW YORK, N.Y. For Renewal of License of Station WNBC-TV, New York, N.Y.; COLUMBIA BROADCASTING CO., NEW YORK, N.Y. For Renewal of License of Station WCBS-TV, New York, N.Y.; AMERICAN BROADCASTING CO., NEW YORK, N.Y. For Renewal of License of Station WABC-TV, New York, N.Y.

File No. BRCT-1; File No. BRCT-3; File No. BRCT-7

FEDERAL COMMUNICATIONS COMMISSION

20 F.C.C.2d 58; 17 Rad. Reg. 2d (P & F) 563

RELEASE-NUMBER: FCC 69-1041

September 24, 1969 Adopted

ACTION:

MEMORANDUM OPINION AND ORDER

JUDGES:

BY THE COMMISSION: COMMISSIONER COX CONCURRING IN THE RESULT; COMMISSIONER

JOHNSON DISSENTING AND ISSUING A STATEMENT; COMMISSIONER H. REX LEE ABSENT.

OPINION:

[*58] 1. The Commission has before it: (1) Three substantially identical pleadings entitled "Petition To Revoke Broadcasting License," directed against the three network owned-and-operated television stations in New York, the so-called network "flagships," filed by Anthony R. Martin-Trigona on May 28, 1969; (2) letters of response from NBC, CBS, and ABC dated June 11, June 17, June 16, 1969, respectively, and; (3) letters of comment on those responses from Mr. Martin-Trigona. Since the three applications for renewal are still pending, we shall treat these petitions as petitions to deny the renewal applications.

2. Petitioner Anthony R. Martin-Trigona identifies himself as a citizen of the United States and a resident of Urbana, Ill. He states, without further clarifying comment, that he has had "extensive opportunity to study and investigate the antitrust, conglomerate and concentration of media violations posed * * *" by the ownership of the above-referenced New York television stations by the three national networks. He also asserts that he is a shareholder -- to the extent of one share -- in CBS, RCA, and ABC. He affirms that he has standing as a party in interest to file these petitions by virtue of his shareholder status, "his specialized study" of NBC, CBS, and ABC corporate affairs and because he is a "viewer" of television programs produced by the three networks and broadcast by their affiliates in Illinois. Martin-Trigona predicates his standing, in part, on what he calls the "but for" test; "but for the ownerships of WABC-TV, WCBS-TV, and WNBC-TV," "and the lucrative oligopoly profits" which such ownership [*59] gives the respective networks, he says, the programming and policies of the networks would be "significantly modified."

3. Petitioner's final basis for the claim of standing he says -- is predicated on the independent "public interest" standing which exists regardless of petitioner's residence, location or relationship to the licensee (i.e. "ombudsman" status intervention). This inherent standing exists because all licensees must operate at the necessity and convenience of the American public and have an affirmative, non-delegable duty to operate in the national public interest. To the extent that any licensee does not operate in the public interest, a public interest cause of action for revocation of a license may be asserted by any member of the public. Petitioner asserts that the Commission recognized this "general public interest standing," when it stayed the renewal of Time-Life licenses in California at the request of John F. Banzhaf III. In that case, however, the Commission did not reach the question of Mr. Banzhaf's standing when it dismissed Mr. Banzhaf's petition as moot on March 31, 1969. Petitioner cites no other cases or authority to support his claim of standing. Each of the networks individually allege the petitioner lacks standing as a party in interest.

4. The issue of standing in this case is concerned with the principles set down by the court of appeals in Office of Communications of United Church of Christ v. FCC, 359 F. 2d 994, 1001-1002 (CADC, 1966). That case established that the responsible representatives of the listening public in an area had standing to challenge the renewal of license of the stations serving the area, and further stated that the Commission might adopt appropriate regulations in this field to delineate which challengers represent responsible community groups or organizations. We believe that Mr. Martin-Trigona lacks standing to challenge the renewals in question. The stations which he views are Illinois stations, not these New York stations. Of course, these Illinois stations present network programming, but they remain fully responsible for all programming presented. For example, fairness questions or questions of excessive commercialization remain the full responsibility of the individual licensee. To the extent that petitioner bases his standing on challenges concerning the programming he has been receiving, such challenges should be directed to the stations from which he is receiving service. To the extent petitioner bases his challenge on the above-described "but for" argument (i.e., "but for" the network 's ownership of these New York stations, petitioner would obtain different and better program service), we note that petitioner has not met the burden imposed upon him by section 309(d), of showing that a grant or denial of license renewals to these three New York stations would affect the programming viewed by him; that he has simply made a bare allegation in this respect. Elimination of all networking would of course affect the programming received by petitioner, but here again there is no showing that such a drastic occurrence would benefit petitioner or the millions of viewers of network television. Finally, a denial of license would not benefit petitioner as a shareholder of these companies. We find that Martin-Trigona has not demonstrated that he has standing as a party in interest in this matter. We will, however, briefly discuss the petitioner's claims, since as we have stressed, we welcome and examine [*60] complaints from the listening public in line with the statutory obligation. (See sec. 311(a).)

5. The petitioner's complaints break down into three main headings: (1) Antitrust violations; (2) conglomerate conflicts of interest; and (3) undue concentration of media power in New York City and in the national market. n1 Additionally, CBS and ABC are accused of fairness doctrine violations concerning unspecified controversial issues of public importance and all three networks are accused of excessive commercialization, excessive use of movies in prime time, misleading program practices, failure to program to the needs of racial minority groups and failure to program in areas where "the interests of advertisers and potential advertisers, or [their] own corporate conglomerate interests might be adversely affected." All networks, the petitioner alleges, present "unimaginative, uninteresting, and unentertaining programming" and CBS is singled out for presenting "geriatric" programming and for "objectionable censorship such as the 'Smothers Brothers Comedy Hour' which detract and vitiate from any social commentary."

n1 The petitioner prefaces these charges with this statement: "If the Commission rules that the entire broadcast record of [these stations] must be considered, then the petitioner respectfully reserves the right to amend and supplement this petition to provide additional information. * * *"

6. The petitioner has nowhere set forth facts that show the networks to be in violation of any law, Commission policy or rule. Ownership of the New York stations is consistent with our rules and our policy, and indeed flagship stations may be necessary to networking, which in turn provides great public benefits. n2 For the most part, petitioner's pleadings recite conclusions, not factual allegations. They are replete with pejorative language, highly individual opinions and unsupported and unsubstantiated accusations. The petitioner has not made any showing as to how the grant of these renewals would be prima facie inconsistent with the public interest, convenience, and necessity. On the broadcast policy questions of multiple ownership and conglomerate control of licensees, the Commission has issued public notices and instituted rulemaking proceedings, and is thus exploring the general issues in this important area. This does not mean that we should, or would, ignore serious questions raised in individual proceedings, and, as shown by recent actions, we have not done so. But no such showing of serious questions is made here; rather there is an absence of any specific showing of abuse, law violation, or discernible overriding public interest concern. n3

n2 We shall not repeat here the policy rulings which we have made in the network field, concerning both the basis for viable networking and the benefits derived there from.

n3 Petitioner's assertions of alleged violations of law are no more than that. For example, petitioner asserts that NBC uses profits from its owned and operated stations, including WNBC-TV, to augment and subsidize its network activities and thus excludes new network entrants because of this unfair competitive advantage. But, petitioner has made no substantive showing in this respect. Based on our own experience, we believe that network ownership of stations is important to effective networking, which in turn serves the public interest. But again, our experience leads us to believe that it is not network ownership of stations which blocks development of new networks; after all, there are other multiple owners with stations in the larger markets, and we have stated our willingness to consider waiver of our multiple ownership policies, if we had some assurance that such waiver would result in a fourth network. The main obstacle, as we see it, is the difficulty of entering the field in light of the limited number of presently prized VHF stations in many markets available for affiliation to any new network. (See legislative history of 1962 all channel law, H.R. 1559, 87th Cong., 2d sess., pp. 3, 4 (S. Rept. No. 1526, 87th Cong., 2d sess., pp. 4, 7).)

[*61] 7. With regard to the petitioner's programming criticisms, it has long been our policy that the selection and presentation of programming material is essentially a matter within the sound discretion of the individual licensee. It is not our function to make artistic value judgments as to the worth or demerits of a given entertainment program. We cannot properly deal with the blanket charge that network programming is unimaginative, unentertaining or geriatric. The fairness doctrine question raised by the petitioner is similarly not litigable. The fairness doctrine necessarily deals with specific controversial issues of public importance, not vague and formless generalities. Here, the petitioner is silent as to what controversial issues were allegedly involved, what specific views were aired and what basis he has for the belief that fairness was not achieved.

8. Because the petitioner has not demonstrated that he has standing as a party in interest, It is ordered, That the petition to revoke broadcasting license directed against the three stations listed above Is dismissed.

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

DISSENTBY: JOHNSON

DISSENT:

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

Anthony R. Martin-Trigona has petitioned this Commission to revoke the licenses of the three network owned and operated television stations in New York City. He asks that the Commission revoke the licenses of these "flagship stations" because of "antitrust violations, conglomerate conflicts of interests, and undue concentration of media power in the New York City and national market. " These charges are serious ones. The Commission, in ordering a study of conglomerate broadcasters, 16 F.C.C. 2d 436 (1969), has recognized that a problem exists, but here summarily dismisses petitioner's contentions. The majority apparently justified the dismissal upon petitioner's lack of standing, but, perhaps as a sop to a reviewing court, the merits are mentioned and quickly rejected.

STANDING

Petitioner has alleged four bases for his standing to seek revocation of the licenses: First, that he has had "extensive opportunity to study and investigate " the antitrust and concentration problems involved; second, that he is a shareholder in each of the conglomerate owners of the stations; third, that "but for" the tremendous oligopolistic profits made by these three stations, he would receive significantly modified programming from the networks, I will not consider the validity of these three allegations, because I feel that a grant of standing is justified on the fourth basis, which encompasses the other three.

Petitioner asserts, fourth, that he has standing to bring this case because of an "independent 'public interest' standing which exists regardless of petitioner's residence, location or relationship to the licensee." It is his contention that because all licensees operate as a public trustee for the American people, any alleged violation of the public interest by a licensee may be raised in a petition by an individual [*62] member of that public -- by a beneficiary of that public trust. Petitioner therefore has standing in this action, both as an ombudsman representing the public in general -- and thus reminiscent of the Federal courts' private attorneys general who are given standing to represent the public interest, see Associated Industries v. Ickes, 134 F.2d 694, 704 (2d Cir.), rev'd per curiam on other grounds, 320 U.S. 703 (1943) -- and as one of many individual members of the public who, collectively, are the beneficiaries of the broadcaster's public trust.

In recent years the Federal courts have eased the strictness of the standing requirement whenever the conditions of adversity and ripeness were reasonably met. See Flast v. Cohen, 392 U.S. 83, 99-100 (1968); Griswold v. Connecticut, 381 U.S. 479 (1965); Baker v. Carr, 369 U.S. 186, 204 (1962). The Supreme Court has said that all that is needed for a party to have standing is "a personal stake in the outcome of the controversy." Baker v. Carr, 369 U.S. 186, 204. Similarly, to insure that the case is presented in a concrete manner so that both sides are adequately presented to the Court, the parties must have "adverse legal interests." Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240 (1937). Certainly the petitioner in this case has a sufficient interest in the outcome of the case to be an effective spokesman for the public interest, for his personal stake in the quality of television service available to him is exactly the same as that of any television viewer. And there can be little doubt that he is in an adverse position to the three networks. I do not see how this Commission can, at the same time, regulate broadcasting in this country by a public interest standard, and yet not listen to the arguments seriously advanced by individual members of that public.

It is important to note that the policies underlying the doctrines of standing to participate in broadcast renewal proceedings before this Commission differ importantly from the standing doctrines normally applied by the courts. In civil proceedings, for example, a court may wish to spare a defendant the burden of defending himself where the trial might otherwise be completely avoided -- that is, where the plaintiff lacks the involvement required for standing. In FCC license renewal proceedings, however, an examination of the licensee’s past record and future proposals can never be avoided -- for this Commission is required by statute to conduct an examination of the licensee's qualifications every 3 years, whether intervening members of the public participate or not. For this reason the question before the FCC is not, "will there or will there not be an examination of the licensee's qualifications?" but rather, "Will individual members of the public be allowed to contribute their views on the licensee's qualifications in a proceeding which must be conducted in any case?" The question is not whether the licensee will be spared the burden of defending his prior 3-year record, but whether in the process of making that defense he will be required to respond to public-interest arguments which the FCC should be raising, but which are often more easily raised by members of the public.

For this Commission to deny standing to the petitioner's is to retreat into the realm of legalisms and forsake its duty to serve the public interest. In Barrows v. Jackson, 346 U.S. 249, 257 (1953), the Court [*63] said: "Standing, which is only a rule of practice, is outweighed by the need to protect the fundamental rights which would be denied by [not allowing the action to be brought]." Even to the Supreme Court, standing is not a doctrine that must be enforced regardless of the public interest in the merits of the case. In Barrows, as here, the petitioner may well have been the only effective advocate of the position being espoused. If the case is dismissed on a procedural technicality, then a crucial issue of public policy might never be advanced. Furthermore, it is both logical and consistent with precedent for a party, willing to argue the public interest, to be granted standing as a representative of the public. Prof. Louis Jaffe has written that in Associated Industries v. Ickes, 134 F. 2d 694 (2d Cir.) rev'd per curiam on other grounds, 320 U.S. 703 (1943), Judge Frank argued that a consumer had standing as a member of a class which is coterminous with the entire human population. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265, 1314 (1961).

Decisions directed at the FCC have similarly liberalized the doctrine of standing. Early cases gave competing private litigants standing as representatives of the public interest, see Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 14 (1942); FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940), and recent decisions have emphasized that this right exists for individual consumers of broadcasting's product. See Hale v. FCC Case No. 22751 (D.C.Cir., May 15, 1969); Joseph v. FCC, 404 F. 2d 207 (D.C.Cir. 1968). But certainly the most significant court decision on the subject of FCC standing was Office of Communication of United Church of Christ v. FCC 359 F. 2d 994 (D.C. Cir. 1966). Judge Burger, writing for a unanimous court, reviewed briefly the history of standing before the Commission. Prior to his decision, only two categories of complainants had standing to be heard before the FCC – those alleging electrical interference and those alleging some economic injury. He noted that "* * * the Commission's traditionally narrow view of standing initially led it to deny standing to the very categories it now asserts are the only ones entitled thereto." Id. at 1000. This history of unsuccessful Commission attempts at excluding anyone other than the immediate parties and the Commission staff showed Judge Burger "that neither administrative nor judicial concepts of standing have been static." Id. He said that the courts have always resolved questions of standing as they arose and never intended to limit the categories of parties with standing to any set number. Logically, when the court broadened standing to include individual members of the listening public, it could not have meant thereby to freeze the doctrine and limit standing to any definite number of categories.

Standing must be thought of as a practical and functional concept to be applied for particular purposes -- to regulate the flow of cases to the Commission and to ensure sufficient timeliness and adversity to make the case suitable for decision. At present, the Commission treats the doctrine as one to be applied rotely whenever anyone outside of the existing mechanical categories asks to be heard. I have had sufficient administrative experience to be as mindful as my colleagues of the potential impact upon this Commission of a flood of citizen protests. [*64] But I believe that there will be time enough to address such a change in circumstances when and if it arises. In the meantime, I believe we should make every effort not to -- or appear to -- be unduly restrictive in our interpretation of the standing requirements of this agency.

I can only conclude that this Commission is not listening to either the words of the Federal courts, or the trend of their decisions, in the area of standing. We do not enforce ownership, programming or engineering standards with much vigor. Recently, this Commission made clear it is not going to hold its licensees to minimal standards of business ethics either. Star Stations of Indiana, Inc. (WIFE-AM-FM), F.C.C. 69-992. If we are to judge licensees' performance or nonperformance in the public interest at all, as the law charges us to do, it is simply essential that the public be allowed to communicate with us. Judge Burger in United Church of Christ wrote:

The theory that the Commission can always effectively represent the listener interests in a renewal proceeding without the aid and participation of legitimate listener representatives fulfilling the role of private attorneys general is one of those assumptions we collectively try to work with so long as they are reasonably adequate. When it becomes clear, as it does to us now, that it is no longer a valid assumption which stands up under the realities of actual experience, neither we nor the Commission can continue to rely on it. The gradual expansion and evolution of concepts of standing in administrative law attests that experience rather than logic or fixed rules has been accepted as the guide. ( Id. at 1003-04.)

Whether it be as private attorneys general, or in ombudsman status, or in one 's own right, each member of the American public should be allowed to question the performance of their broadcast licensees. When the performance of the giant networks is challenged by a member of the public, especially one experienced and well-versed in the problems he alleges, it is the Commission's statutory duty to hear his charges, rather than hide behind the formal doctrine of standing.

HEARING

Under section 309(e) of the Communications Act, the Commission must order a hearing on a renewal application when "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, convenience, and necessity will be served by renewing the license. In addition, the Court of Appeals for the District of Columbia has said: "It is fundamentally abhorrent to our system of jurisprudence to deny a hearing to a litigant where justice and law require that a hearing be held." National Broadcasting Co. v. FCC, 362 F. 2d 946 (D.C. Cir. 1966). Yet in this case the Commission concludes that even if petitioner had standing he has produced nothing to justify a hearing. Given the standards of section 309(e) and the language of the National Broadcasting Co. case, one would assume that the Commission's denial of petitioner's requests without a hearing meant the Commission was confronted with clear issues totally devoid of any relevant problems. But that was not the case.

The majority of the Commission concludes:

The petitioner has nowhere set forth facts that show the networks to be in violation of any law, Commission policy or rule.

[*65] The petitioner has not made any showing as to how the grant of these renewals would be prima facie inconsistent with the public interest, convenience and necessity.

[No] * * * showing of serious questions is made here; rather there is an absence of any specific showing of abuse, law violation or discernible overriding public interest concern.

In their opinion the majority does not correctly summarize the petitioner's allegations; it does not answer the substantial issues raised by the petitions; and contrary to law and precedent it refuses to set the issues for hearing so that the questions can be resolved.

The majority has said that petitioner has not "set forth facts" showing a "violation of any law." But to the contrary, in the petition against CBS, for example, petitioner states:

WCBS-TV ownership by CBS stands as an egregious example of a major corporate licensee operating in violation of antitrust requirements, both as regards to a lessening of competition in an industry -- i.e., the television broadcasting and networking industry -- and as regards to actual economic power being used and tending to create a monopoly-oligopoly, In essence, all three national networks are operating in violation of, inter alia, the act of July 2, 1890, and the act of October 14, 1914 (15 U.S.C.A. sec. 1, 15) and all acts amendatory thereto, commonly known as the Sherman and Clayton Acts.

CBS owns five major market VHF television stations with an estimated audience reach of 38 million persons, or roughly 19 percent of the total population of the United States. * * * Court decisions have held that far less concentration than 19 percent of an industry is sufficient to constitute a restraint against trade when the industry as a whole is made up of small producers (which a television station is). Clearly, CBS, controlling access to 19 percent of the Nation's television audience through its O. & O.'s, with almost 50 percent of this total coming from WCBS-TV constitutes a major monopolistic-oligopolistic factor in the television broadcasting industry.

* * *

* * * CBS not only owns television stations and operates a national television network, it also produces television programs, syndicates reruns, and is entering the motion picture production business (see "Broadcasting," Apr. 14, 1969, p. 56). CBS also owns the New York Yankees, the publishing house of Holt, Renehart & Winston, and the Columbia records division. Not only are such varied and diverse interests funded by television monopoly-oligopoly profits, it is a classic example of accretion leading to widening violation of antitrust considerations (networking, station ownership, sports, and publishing expansion, motion picture production for the captive CBS network, etc.).

There is no more contradictory nor scandalous concentration of economic power and activities that CBS could be engaged in, when weighed against its public service requirements and free market competition in the entertainment industry. As a matter of longstanding precedent, ownership of motion picture production and exhibition facilities -- i.e. in the case of CBS, exhibition on the CBS television network -- has been incompatible with antitrust policy interests (q.v. U.S. v. Paramount Pictures, 334 U.S. 131, 68 S. Ct. 915 [1948]). When the antitrust implications of motion picture production and exhibition are coupled with a similar stranglehold on television production and exhibition over the captive CBS television network, the gross and far ranging boundaries of the monopoly implications are perceived.

In addition, ownership of WCBS-TV by a parent corporation which also operates a national radio network is also contrary to the public interest and antitrust requirements. Ownership of competitive media networks by the same company, in addition to its own competitive media license holdings, tends to produce conditions which effectively restrict competition from potential competitors.

* * *

CBS is obviously not a monopoly in the strict sense of the word, since it has two competitors; but to the extent it engages in monopoly practices (ownership [*66] of stations and networks, and punative motion picture production, and diversification in New York Yankees, Holt, and other activities) CBS represents a monopoly grafted on an oligopoly.

The majority also states that there is no showing that the renewal grant of these licensees would be "inconsistent with the public interest." The Communications Act does not require that an absolute showing be made in a petition; rather the mere presentation of a substantial and material question of fact necessitates a hearing. Petitioner has certainly met this minimum requirement. As an example, in the CBS petition, he says:

CBS owns three full-time maximum-power licenses in New York City. All three licenses are palpably used to enhance the profit potential of network operations and are operated in the best interests of the CBS corporate structure, not the public interest. Together with its competitor networks, the group owns nine full-time maximum-power licenses in New York City. Ownership of the three full-time stations in New York inhibits growth and development not only of local program service and local license ownership, but also of competitive network service. It would be almost impossible for a new competitor to overcome the structural advantage of the existing networks with their free public O. & O. profits to fend off any challenges. Furthermore, ownership of flagship stations for both television and radio inhibits the joint and several development of both media. Not only does CBS control the existing network apparatus for both television and radio (and in the case of radio, record production, and distribution facilities as well), but CBS controls the most desirable market licenses, creating a situation which is calculated to dissuade new competition in such a monopolistically structured industry. The structure and dissuasion come not because of any corporate acumen, bur because of licenses furnished free to CBS by the public.

Nationally, CBS owns 19 full-time stations, including AM-FM-TV stations in the Nation's top three markets. Looked at in conjunction with ownership of competing networks, this concentration of media power tends to further discourage competition and in fact, because of structural limitations in the spectrum, to lock in the existing national networks in perpetuity. The Commission is already aware of the coercive effects of undue market power in proposing its longstanding 50-50 rulemaking.

Clearly, CBS fails to sustain any convincing burden of proof of operating WCBS-TV in the overall public interest both as to concentration of media power and ownership of competitive media. Nationally, CBS controls 19 major market licenses and has affiliation agreements with hundreds of stations. Wcbs-tv/ and the other O. & O.'s provide a protective profit penumbra behind which the CBS corporate complex has increased its power and expanded the scope of its activities in areas totally unrelated to broadcasting. The public interest would be better served both locally and nationally, if the current network-owned stations in New York were freed and allowed to choose affiliation or programming service independently of parent corporation network policy.

In its most sweeping statement, the majority finds "no serious questions" and nothing of "overriding public interest concern" in the three petitions. Again from the CBS petition:

Derivative from and associated with CBS's antitrust and public policy violations and concentration of media power are the very real problems posed by internal conflicts in the CBS organization. CBS is an obvious entertainment and related activity conglomerate which has used television-radio profits to expand in numerous directions.

What is more significant, and more difficult to discern on first sight, is the great conflict between being a national news and programming source, and being a secret defense contractor at the same time. CBS must censor its news if it is to please its Department of Defense customer; significant, and a particularly good instance thereof, is the case of the CBS laboratories laser cameras used in Vietnam. It is virtually impossible for a company which derives financial sustenance [*67] from the war, and which also relies on Government cooperation for prime licenses, not to be swayed by the countervailing (to the public interest) pressures of the military-industrial complex. It is impossible for CBS to air local or network editorials in opposition to the Vietnam war, or make other observations on the folly of a massive military-industrial establishment to placate defense contractors, when CBS itself is one of those contractors. A company which is developing and providing defense products for the Government cannot render an impartial view on Government policies which involve the Nation in distant wars and domestic dissension. CBS can of course make pro forma editorial and news presentations, but it cannot make a genuine contribution to unbiased and meaningful national debate when it has a division serving the needs of the military-industrial complex and which is actively supporting Government policy and spy surveillance in Vietnam (for a discussion of the laser camera, finally unveiled by CBS after approval by the Department of Defense, see "Broadcasting," Apr. 7, 1969, p. 49).

In deciding to grant a license renewal to WCBS-TV, the crucial issue is not whether CBS may have operated the station in compliance with minimum public service requirements, in effect providing mechanical pro forma data on renewal applications, but rather an examination of what the competitive and countervailing advantages accruing to the public both locally and nationally would be from a locally owned New York station which was not the captive of a national network or group broadcaster. It is more than a remote possibility that a free New York channel could develop into a significant national voice and provide national syndication of programs all on its own.

It is clear that under the existing corporate structure of CBS, management has its hands full overseeing activities from baseball to book publishing, in addition to station and network ownership and management, and now movie production, as well as secret defense contracting, manufacturing, and record production, and that CBS as a corporate entity is unable to devote full and substantial attention to the major function and responsibility of a broadcast licensee: serving the public interest in the direct operation of the station license.

Not only does the corporate conglomerate status of CBS/ affect entry into the broadcasting industry, but in publishing, sports, and now movie production as well. The guaranteed (almost) profit potential of a New York VHF license is not being used to serve the necessity and convenience of the American public; it is being used to finance CBS corporate conglomerate venture which are in most instances totally unrelated or incompatible with the public interest requirements of a licensee. Clearly, as in the case of one-bank holding companies having other business interests, it is evident that essentially public service corporations with the inherent protections of legally restricted market entry and technical limitations (in the cast of radio and television) should not be allowed to speculate in unrelated and incompatible activities which do not serve the genuine and direct public interest of the station license itself.

If in all of these three lengthy petitions -- raising antitrust, concentration, and conglomerate issues -- the majority can find "no serious questions," then I have little hope that these important issues will ever be addressed by this Commission. The allegations I have quoted, and comparable ones from the other two petitions, raised substantial questions as to these licensee's performance in the public interest. I do not believe that this Commission has the legal authority summarily to dismiss such petitions without a hearing on their merits.

I dissent.