In Re Application of MINNEAPOLIS
STAR & TRIBUNE CO. (TRANSFEROR) and WKY TELEVISION SYSTEM, INC.
(TRANSFEREE) For Voluntary Transfer of Control Wichita-Hutchinson Co.,Inc.,
Licensee of Station KTVH-TV, Hutchinson, Kans.
Docket No. 18631 File No. BTC-5848
FEDERAL COMMUNICATIONS COMMISSION
20 F.C.C.2d 951 (1969)
RELEASE-NUMBER: FCC 69-1354
December 10, 1969 Adopted
BY THE
COMMISSION: CHAIRMAN BURCH DISSENTING AND ISSUING A STATEMENT; COMMISSIONERS
ROBERT E. LEE AND WELLS CONCURRING IN PART AND DISSENTING IN PART AND ISSUING
STATEMENTS; COMMISSIONER JOHNSON ISSUING A SEPARATE
STATEMENT.
[*951] 1.
On September 16, 1969, WKY Television System, Inc., and the Oklahoma
Publishing Co. petitioned for reconsideration of the Commission's order n1 designating the above-captioned
application for hearing, and requested a grant of the application without
hearing. Petitioners asserted that the
transferor, Minneapolis Star & Tribune Co. (M.S. & T.), intended to
exercise the right contained in the contract for transfer of control to
terminate the contract if Commission approval is not obtained by December 31,
1969. By a "Memorandum Opinion and
Order," F.C.C. 69-1200, released October 31, 1969, the petition was denied
on the grounds that certain of the issues required a hearing for their
resolution and that a favorable public interest determination could not be made
on the basis of the information then before the Commission.
n1 F.C.C. 69-907, released Sept.
3, 1969.
2. Now before the Commission is a petition
filed by WKY on November 26, 1969, requesting that disposition of the pending
application be made on the basis of the exhibits attached thereto and other
matters of record. Both WKY and M.S.
& T. have waived a hearing pursuant to the provisions of section 1.603 of
the rules. n2 WKY asserts that the information
submitted is sufficient to enable the Commission to resolve all of the
designated issues without further hearing, that the issues should be resolved
in favor of WKY, and that the application for transfer of control should be
approved. If, however, the Commission
concludes that a hearing is necessary on any of the issues, WKY requests in the
alternative that the Commission grant the application subject to a condition
subsequent that a hearing be held to determine whether WKY should be required
to divest itself of KTVH-TV (at
[*952] no profit) if after the
hearing the Commission were to determine that the public interest would be
served thereby.
n2 The waivers were filed by WKY
on Nov. 26, 1969, and by M.S. & T. on Dec. 5, 1969. Also before the Commission is a pleading
filed by the Broadcast Bureau on Dec. 8, 1969.
3. The alternative request of a grant subject
to a condition subsequent of a possible divestiture after hearing must be
denied. Section 310(b) of the
Communications Act expressly provides that no transfer of control may be
effected except upon a finding by the Commission that the public interest,
convenience, and necessity will be served thereby. Since the public interest finding is a prerequisite to favorable
action on the application, the deferment thereof until after consummation of
the transfer would be contrary to the express provisions of the act. Therefore, a grant is possible only if all
issues are resolved in favor of the proposed transfer or, failing this, if the
Commission should decide that any unfavorable factors which might be developed
at the hearing are outweighed by the favorable factors so that, on balance, the
public interest, convenience, and necessity would be served by a grant of the
proposed transfer.
4. As pointed out and explained in our order
denying reconsideration and a grant without hearing, we are concerned at this
stage of the proceeding primarily with three issues: Whether approval of the
transfer would result in an undue concentration of control of the media of mass
communication (issue (a)); based on their past broadcast records, contributions
to program diversity, fairness in presentation of controversial issues, and
proposed expenditures for programming, whether the transferee can be expected
to provide at least as good a service to the community as the transferor (issue
(c)); and the purposes and effect of certain corporate and family trusts and
estates of the Gaylord family (issue (f)).
By its pending petition and the attachments thereto, WKY has undertaken
to demonstrate that each issue should be resolved in its favor and that a grant
of the application for transfer of control would serve the public interest.
5. On the basis of the information submitted,
we are unable to conclude that no undue regional concentration of control would
result from approval of the proposed transfer.
As we stated in our designation order (pars. 11-13), WKY is the licensee
of a VHF television station and a standard broadcast station (WKY-AM-TV) in
Oklahoma City, Okla.; and television stations in Fort Worth-Dallas (KTVT-TV
(VHF)) and in Houston (KHTV-TV (UHF)), Tex.
n3
In addition, the Oklahoma Publishing Co. prints Oklahoma's two largest
newspapers, the Daily Oklahoman (morning) and the Oklahoma City Times (evening)
with a combined circulation of 301,591 daily and 278,075 on Sunday. It also publishes the Farmer-Stockman, a
monthly agricultural periodical with separate editions for
n3 WKY is also the licensee of
television stations at Tampa-St. Petersburg,
n4 This constitutes approximately
33 percent of the State's total population of 2,272,000.
6. In the circumstances set forth herein, the
increased area in which the transferee would have a voice provides substantial
support for a finding that approval of the transfer would result in an
unwarranted or undue regional concentration of control. It may be that in a full evidentiary hearing
WKY could develop countervailing factors which would establish that no basis
exists for our concern. However, the
transferor and transferee have waived a hearing and the pleadings and other
matters of record are insufficient to overcome the substantial doubt raised by
the matters of record as to the advisability of permitting WKY to extend its
influence into this enlarged area. We
therefore conclude that WKY has failed to sustain burden of showing that
approval of the application for transfer of control is consistent with the
public interest.
7. In view of our determination with respect to
the concentration of control issue, no extended discussion of the remaining
issues is necessary. Nevertheless, in
view of WKY's contention that the failure to dispose of certain issues would
leave unresolved charges involving its credibility and qualifications to be a
licensee, we have examined carefully the data submitted concerning its proposed
programming at KTVH-TV and the expenditures to be made in connection
therewith. On the basis of our
examination, we are satisfied that the proposals were made in good faith and
with the intention of maintaining a program format at least as good as that of
the licensee under the control of M.S. & T. We find nothing in the submissions of the parties to this
proceeding which raises any question as to WKY's credibility or character
qualifications to be the licensee of a broadcast facility and our denial of the
transfer application is not intended as any adverse reflection on its
credibility or character.
8. On the trust issue (issue (f)), there has
been no hearing, nor has the Broadcast Bureau focused on this aspect. We are not in a position, therefore, to
resolve this issue and we do not do so.
However, we do note that WKY has made an extensive showing which, on the
basis of the information presently before us, would appear substantially to
allay the problem presented as to the trust situation.
9. Accordingly, It is ordered, That the application
for transfer of control of the Wichita-Hutchinson Co., Inc., from the
Minneapolis Star & Tribune Co. to WKY Television System, Inc., Is denied.
10. It is further ordered, That the petition
filed November 26, 1969, by WKY Television System, Inc., for immediate relief
Is granted to the extent reflected herein but in all other respects Is denied.
11. It is further ordered, That this proceeding
Is terminated.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
SEPARATE STATEMENT OF COMMISSIONER NICHOLAS JOHNSON
This
statement is issued to correct any possible misunderstanding about the meaning
of today's majority decision. The
chairman suggests that the majority should have considered in hearing any issue
as serious as the concentration matter posed in this case. But, of course, that is precisely what the
majority wanted to do all along. It was
the parties in this case who did not wish to face a hearing on the
concentration of control issue (each for reasons of its own), who waived a
hearing pursuant to section 1.603 of our rules, and who asked us to resolve the
issues on the pleadings and record before us.
The
parties urged us to approve the transfer, without hearing, because the purchase
contract terminates December 31, 1969.
In so doing, they have assumed the posture of holding a gun to their
collective [*955] heads and threatening to pull the trigger unless
we approve the transfer. This
Commission cannot respond to such pressure.
The Chairman
contends, incorrectly, that the majority has concluded that the public interest
will not be benefited by the transfer.
This is inaccurate. Unlike an
Attorney General who may prosecute some cases and ignore others, the FCC is
compelled by the Communications Act to consider every license transfer. That act gives us the affirmative obligation
to withhold our approval unless we can make a positive finding, supported by
sufficient evidence, that the transfer will serve the public interest,
convenience, and necessity. Today we do
not find, as the Chairman contends, that the public interest will not be
benefited by the transfer. Rather, we
find, "[on] the basis of the information submitted," that "we
are unable to conclude that no undue regional concentration of control would
result. * * *" (Majority opinion,
par. 5.) This holding is important: It announces this Commission's intention
not to approve transfer applications where the concatenation of evidence
suggests a concentration of media control which, as here, may be excessive.
The
Chairman also suggests that the Commission should have moved more expeditiously
in this matter. With this I wholly
agree. The Commission has numerous
rulemaking proceedings (including the 50-50 -- Westinghouse network control
proceeding, one to a market, and CATVcross-ownership) where the time for filing
comments is long past, oral argument has been held where appropriate, and staff
work is surely completed by now. If the
Commission would move in these areas, some of the delay in individual matters,
as typified by this case, could be avoided.
For it was, frankly, careful and serious thought on questions involving
undue local and regional concentration of control that led to the long period
of consideration in this case. Anyone
who is truly interested in resolving problems of delay in individual cases
might consider expediting the rulemaking proceedings in these areas which were
designed to clarify our policies and have been pending for so long. Already there is the suspicion that powerful
interests who oppose consideration of these matters are more than happy with
past delays -- and urge further delay in the hope that the climate at the
Commission will become more favorable to their cause in the future.
I join
in the Chairman's urging of speedier Commission action.
DISSENTING
STATEMENT OF CHAIRMAN DEAN BURCH
I
dissent to the holding in this case on the critical issue of undue
concentration of control based solely on pleadings and exhibits.
I cannot
condone making such a finding on the basis of pleadings to the exclusion of the
hearing processes where allegations can be tested by cross-examination and
rebuttal evidence.
[*954]
The majority included charges of improper concentration of control in
the hearing order and now, on petition of the transferee, and because the
expiration of the purchase contract precludes these issues being tested in the
hearing process, has concluded that the public interest will not be benefited
by the transfer. I am convinced that
the public interest is not served by deciding such significant issues in this
ipse dixit manner.
One
further comment is required in this case.
The instant application was filed on January 17, 1969. It took the Commission nearly 9 months to
designate this application for hearing on 8 issues -- 7 of which were
subsequently resolved to the majority's satisfaction, based on the filing of
additional information.
First, I
find it difficult to believe that there is any good reason for waiting 9 months
to act on a transfer application.
Second, while one can only speculate, it does seem that if the
Commission had drafted its hearing order in a more precise manner, or had
sought to accumulate additional information during the 9 months that the
application was under study, a hearing could have been concluded by this
time. I hope that in the future the
Commission will draft its hearing orders with more expertise as to the issues
and will seek to dispose of its business in a more timely fashion.
STATEMENT
OF COMMISSIONER ROBERT E. LEE CONCURRING IN PART AND DISSENTING IN PART
I concur
with the result reached here insofar as it disposes of the unresolved charges
involving WKY's credibility and qualifications to be a licensee (see pars. 7
and 8 of the letter). However, based on
the extensive record now before us, and in the absence of any creditable
challenge to the facts presented to refute such showing, I believe these
matters could and should have been disposed of in a more positive manner.
I
dissent to the majorities denial of this application on the ground that the
issue of possible regional concentration of control is still unresolved. (See the dissenting statement of Chairman
Rosel H. Hyde in which I joined, docket No. 18631, F.C.C. 69-907, Mimeo No.
35070, released September 3, 1969.)
SEPARATE
STATEMENT OF COMMISSIONER ROBERT WELLS DISSENTING IN PART AND CONCURRING IN
PART
I
dissent to the denial of this transfer on the basis of undue concentration of
control.
I concur
in the denial of the request to grant the applications subject to the outcome
of a subsequent hearing because the Communications Act plainly bars a grant
unless the Commission first determines that the public interest, convenience,
or necessity would be served. I concur
in the opinion with respect to the issues concerning programing proposals and
expenditures and the issue concerning trust interests and arrangements.