LEXSEE 30 F

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In the Matter of KSAN, INC., LICENSEE OF RADIO STATION KEST, SAN FRANCISCO, CALIF.

Requests for Investigation

FEDERAL COMMUNICATIONS COMMISSION

30 F.C.C.2d 907

RELEASE-NUMBER: FCC 71-737

August 2, 1971 Released

Adopted July 14, 1971

JUDGES:

BY THE COMMISSION: COMMISSIONERS ROBERT E. LEE AND WELLS ABSENT; COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT; COMMISSIONER H. REX LEE NOT PARTICIPATING.

OPINION:

[*907] 1. The Commission has under consideration (1) a letter dated September 30, 1970, signed by Tamlin Henry, Franklin Middleton, Anthony Flemming, Reedy Williams, John Arnett n1 and others requesting an investigation into the circumstances surrounding their discharge from the employment of KSAN, Inc., licensee of KEST; n2 (2) a letter dated October 7, 1970, from the Joint Strategy and Action Commission of the Northern California Council of Churches requesting an investigation into the elimination of KEST's program service to the black residents of the station's service area and the firing of six black employees of the station; (3) Commission letters dated January 15, 1971, responding to these two letters; (4) a Petition for Reconsideration of the Commission's action set forth in its January 15, 1971, letters in this matter; n3 (5) an Opposition to that Petition, filed by KSAN, Inc.; and (6) a Reply to that Opposition.

n1 Henry, Middleton, Flemming, Williams and Arnett are plaintiffs in an action brought in the U.S. District Court for the Northern District of California against the licensee of KEST. (henry, et al. v. Radio Station KSAN, dba KSOL, et al., Civil Action No. C-70, 2303 WTS.) The suit seeks injunctive and declaratory relief, and compensatory and punitive damages totaling $1,625,000.

n2 At the request of the licensee, the call letters were changed from KSOL to KEST effective January 25, 1971.

n3 The document referred to herein as Petition for Reconsideration is captioned "Petition for Reconsideration of Commission Act, and Disclosure of San Francisco/Oakland Radio Station Financial Reports." The Petition seeks Commission action beyond that sought in the September 30 and October 7, 1970, letters. All requests made in the instant petition are disposed of herein.

2. Prior to September 21, 1970, KEST was a "black oriented" radio station. Seventy-five percent of its 163 hour per week operating schedule was devoted to the broadcast of "rhythm and blues" music n4 in an effort to attract the listenership of the 221.000 black residents of the San Francisco/Oakland community. n5

n4 Application for renewal of license (BR-41), filed September 3, 1968. (The license for KEST will expire on December 1, 1971. An application for renewal is required to be filed on or before September 1, 1971, by Section 1.539(a) of the Rules.)

n5 Petition for Reconsideration, p. 5, fn. 1.

3. By means of a September 15, 1970, letter to the Commission, licensee gave notice of a change in KEST's entertainment format from [*908] "rhythm and blues" to "middle-of-the-road" music "as soon as possible." Licensee stated that surveys conducted by several rating services had shown that most of the black residents of its service area listened to KDIA in Oakland, California. Licensee stated that it would continue to carry "programs of especial interest to the Negro population." The format change occurred on September 21, 1970, and was accompanies by the dismissal of the station's six black disc jockey-announcers. Five of the six discharged employees brought suit against the station licensee and their labor union, Local 202 of the International Brotherhood of Electrical Workers. (See footnote 1, above.) Among other things, the suit alleges that licensee's action contravened Section 73.125 of the Commission’s Rules. n6

n6 § 73.125 of the Rules prohibits Commission licensees of broadcast facilities from discriminating in employment based on race, color, religion, national origin or sex. Broadcast licensees are also required to "establish, maintain, and carry out, a positive continuing program of specific practices designed to assure equal opportunity in every aspect of station employment policy and practice." The Rule lists five specific actions broadcast licensees are required to take.

4. In its January 15, 1971, letter responding to the above-mentioned letters requesting Commission investigation into alleged employment discrimination and the program format change, the Commission stated that, since "proceedings alleging discrimination in employment practices by the licensee of KSOL have been initiated in Federal District Court in San Francisco by former employees of the station, the Commission has decided to defer further consideration of that matter until completion of the court proceedings." With respect to the change in KEST's entertainment format from "rhythm and blues" to "middle-of-the-road" music, the Commission noted licensee's assertion that it had "attempted to maintain its former schedule of non-entertainment programming of particular interest to black residents of its service area." The letter then expressed the Commission's belief that "(with) respect to the change in musical programming... the licensee acted within its discretion and violated no rule or policy of the Commission."

5. The Petition for Reconsideration, after setting forth a number of reasons why the Commission's action of January 15, 1971, was erroneous, prayed that the Commission:

(a) Withdraw its letters of January 15, 1971, in this matter;

(b) Initiate an inquiry into the charges of employment discrimination;

(c) Find that KSAN, Inc., failed to make a showing that the format change at issue was consistent with the public interest, convenience and necessity;

(d) Direct KSAN, Inc., to show cause why it should not cease and desist from broadcasting "middle-of-the-road" music or, alternatively, find that it had "failed to make the requisite public interest showing to justify its format change, and that this failure will be considered when... [its] renewal term next expires;"

(e) Make available the financial statements of all stations in the San Francisco/Oakland area; n7

n7 Petitioners' request is made applicable to (1) KDIA and KEST; (2) stations in the San Francisco/Oakland area programmed with "middle-of-the-road" music; and (3) all other stations in the San Francisco/Oakland area.

(f) Rule on the complaint of Reverend George C. Conklin, Jr., Associate Director, and Reverend Robert Davidson, Jr., staff member, [*909] Joint Strategy & Action Commission, Northern California Council of Churches, that the licensee of KEST failed to make available for their inspection the records of that station as required by Section 1.526 of the Commission's Rules. n8

n8 § 1.526 of the Rules requires that licensees maintain available for public inspection a file of materials specified in that Rule. The Conklin-Davidson complaint resulted from their demand to inspect that file and the station's insistence that an appointment first be made with the station manager who was not, at the time of their visit, available.

6. It is clear that the requests described in subparagraphs 5e and 5f, above, are in no way requests for reconsideration of the Commission's action of January 15, 1971, but are instead original requests for Commission action. Petitioners' request for access to the financial reports submitted pursuant to Section 1.611 of the Rules is discussed in paragraphs 12 and 13 below. The complaint of Reverend Conklin and Reverend Davidson resulted in a Commission letter of November 6, 1970, informing them that information received by the Commission indicated that appropriate arrangements for inspection of KEST's records could be made by a telephone call to the station's offices. Moreover, as a result of complaints similar to that of Reverends Conklin and Davidson, the Commission, on February 23, 1971, adopted a Public Notice entitled "Availability of Locally Maintained Records for Inspection by Members of the Public," 28 FCC 2d 71 (1971), which clarifies the obligations of licensees under Section 1.526(a) of the Commission's Rules. This ruling is dispositive of Petitioners' request for a ruling on the complaint in question.

7. In its Opposition, licensee argued that Section 1.106(a) of the Commission's Rules prohibits the Commission from entertaining "Petitions requesting reconsideration of an interlocutory ruling made by the Commission." Inasmuch as the Commission's letter of January 15, 1971, did not finally dispose of the requests for investigation into KEST's allegedly discriminatory employment practices, KSAN, Inc., maintained, but only deferred consideration thereof, the Commission's ruling did not constitute final adjudication of the matter and, therefore, could not be the subject of a petition for reconsideration.

8. In retort, Petitioners stated that the Commission's decision to defer consideration of the requests for investigation of the employment discrimination matter because it is pending before a U.S. District Court was not interlocutory within the meaning of Section 1.106(a) of the Rules. Petitioners supported this statement by the assertion that the rationale underlying Section 1.106(a) of the Rules was the avoidance of unnecessary delay in the orderly and prompt disposition of the Commission's business. Petitioners emphasized that the September 30 and October 7, 1970, letters constituted "original" requests for Commission action and that the Commission should, therefore, entertain the Petition for Reconsideration of its action deferring consideration of the requests contained in those letters, since to do so would not impede the disposition of any on-going proceeding. Moreover, Petitioners stated, "There is no danger of inconsistent Commission action."

9. A Commission decision to defer action "until completion of court proceedings" does not constitute a final disposition of the matter. The Commission has frequently stated that it would not entertain a petition [*910] for reconsideration of a ruling which did not have the effect of finally disposing of the matter in controversy. KBLI, Inc. (KTLE), FCC 71R-152, released May 13, 1971; Columbia Empire Broadcasting Corporation (WNDO-TV), 7 RR 2d 502 (1966); Laramie Community TV Co., 23 RR 533 (1962); Hershey B/casting Co., Inc., 22 RR 1072 (1962); Melody Music, Inc. (WGMA), 22 RR 870 (1962); KWK Radio, Inc., 22 RR 372c (1961); KWK Radio, Inc., 21 RR 204 (1961); Fisher B/casting Co., 18 RR 594 (1959); Deep South B/casting Co. (WSLA), 13 RR 196d (1955); Indianapolis B/casting, Inc., 10 RR 1010a (1955); Head of the Lakes B/casting Co., 9 RR 1072 (1953); Westinghouse Radio Stations, Inc., 99 RR 623 (1953); WGAL, Inc. (WGAL-TV), 9 RR 120a (1953). Our holdings in these cases have been directed toward the discouragement of fragmented litigation resulting from piecemeal appeals. Cf. Switzerland Cheese Association v. E. Horne's Market, 351 F. 2d 552 (CA, 1st Cir. -- 1965). But even if we were to consider Petitioners' request on the merits, we would not be disposed to undertake an investigation of a matter currently being litigated before the U.S. District Court for the Northern District of California. Wometco Enterprises, Inc. (WTVJ), 9 FCC 2d 535 (1967). Compare: Florida-Georgia Television Co., Inc., et al., 11 FCC 2d 643 (1968). Our restraint in this respect is required by the necessity for maintaining a proper relationship between Federal courts and administrative agencies. Cf. Covell v. Heyman, 111 U.S. 176 (1884); Scott v. Industrial Accident Commission, 293 p. 2d 18 (1956). The potential for "unseemly conflict" between the Commission and the courts, the harassment of multiple litigation and the expense to the parties argue for the kind of abeyance which Petitioners seek to overturn. We are not, in this case, confronted with the necessity for resolving a character issue based upon facts being litigated in another forum so that disposition may be made of an outstanding application pending before the Commission. Cf. Granik v. F.C.C., 234 F.d 682 (CA, DC-1956); Community Radio of Saratoga Springs, New York, Inc., 33 RR 2d 644 (1964).

10. In its adoption of the AM & FM Program Form, 1 FCC 2d 439 (1965), the Commission stated that representations made in new and renewal applications would be relied on by the Commission and that licensees would be responsible for advising it of "substantial changes" in programming during the license term. The Report and Order said:

If the type of change raises serious public interest questions, the licensee will be so advised and an inquiry may be made in order to ascertain complete details... The station's performance in the public interest will be evaluated in any event at the time of next renewal.

The Commission then cited, as an example of the type of "substantial change" which would have to be reported, a change or program format from popular music and news to all talk or all news. The Report and Order did not impose upon licensees a duty to demonstrate that program format changes made during the license term were consistent with the public interest, but only the duty of notifying the Commission of "substantial changes" in program format. The initiative for action responsive to notification of any such change was placed [*911] upon the Commission. It necessarily follows that licensee was under no duty to demonstrate that the public interest was served by the format change even if the change were to be considered a "substantial" one. There is, therefore, no basis for the institution of proceedings under Section 312(b) of the Communications Act for the issuance of an order commanding KSAN, Inc., to cease and desist from the broadcast of "middle-of-the-road" music as Petitioners request. Neither is there any predicate for notifying KSAN, Inc., that we will consider in conjunction with its next renewal application the fact that it failed to do what, as we have found, it was not required to do.

11. Recently, in KNOK Broadcasting, Inc., 29 FCC 2d 47 (1971), we said that we would not

Permit the Commission's processes to be employed to subject to litigation during its license term a licensee electing to change its entertainment program format.

In that case, which took cognizance of similar "format change" problems in WCAB, Inc. v. F.C.C. (WTOS-FM), 27 FCC 2d 743, 21 RR 2d 146 (1971), and The Citizens Committee to Preserve the "Voice of the Arts in Atlanta" on WGDA-AM and FM v. F.C.C., F2d (CA DC -- 1970) [Case No. 23.515, decided October 30, 1970], we noted that a change in entertainment format from "middle-of-the-road interspersed with good country music" to "rhythm and blues" had formed the basis for the charge that the station concerned, KKDA, Grand Prairie, Texas, had been re-oriented toward serving the black population of 200,000 located in Dallas County, Texas, rather than the 52,000 (mostly white) inhabitants of Grand Prairie. In that case, as in this, the licensee represented that the non-entertainment portions of its programming were not affected by the entertainment format change. We held in that case that the kind of music presented by a broadcast licensee as its entertainment programming was a matter within the discretion of that licensee, at least insofar as changes therein during the license term were concerned. KNOK, Inc., 29 FCC 2d 47 (1971).

12. Petitioners' request for inspection of financial reports filed with the Commission by KSAN, Inc., pursuant to Section 1.611 of the Rules arises, apparently, from statements in the Citizens Committee case, supra, to the effect that changes in entertainment program formats may be justified or not by economic considerations. The Commission has consistently stated that the annual financial reports filed by broadcast licensees pursuant to Section 1.611 of the Rules are submitted with the understanding that such reports will be held in confidence. Section 0.457(d)(1)(i) of the Rules affirms this understanding, and that section parallels applicable provisions of the Freedom of Information Act, 5 U.S.C. § 552(d)(4) (Supp. V, 1969), as well as 18 U.S.C. § 1905 (1964) and 26 U.S.C. § 7213 (1964). Access to such reports is granted by the Commission only upon a "persuasive showing" of reasonable necessity, and upon consideration of the position of the station in the proceeding, the inability to obtain the requested information from other sources, and the relevancy and materiality of the information. KOWL, Inc., 24 FCC 2d 305, 306 (1970). We do not find that these standards are met by the request before us.

[*912] 13. With respect to the request for the financial reports of stations KEST and KDIA, Petitioners contend that Commission disclosure of those reports is justified by the licensee's reliance upon economic necessity as a motive for the entertainment format change. But Petitioners have not shown how the financial reports would be germane to the reconsideration of our decision. While economic considerations were adverted to by KSAN, Inc., n9 such considerations were not the basis of, or any part of, our decision. Nor has KSAN, Inc., itself referred to the reports. See: Cape Cod Broadcasting Co., Inc., 22 FCC 2d 403 (1970); rev. denied 23 FCC 2d 277. The same considerations are applicable to Petitioners' request for disclosure of all confidential reports of stations presenting "middle-of-the-road" music and all other stations in the San Francisco/Oakland area. These reports, of course, are even further removed from the controversy before us. Petitioners' request for such disclosure must, therefore, be in all respects denied.

n9 See: Henry, et al. v. Radio Station KSAN, dba KSOL, et al., supra; Memorandum of Decision dated December 17, 1970; and affidavit of Allan Schultz, vice president and general manager of KEST, filed as part of defendant's answer in that proceeding.

14. In view of the foregoing, the Petition of Tamlin Henry, Frankie Middleton, Anthony Flemming, Reedy Williams, John Arnett and the Joint Strategy and Action Commission for Reconsideration of the Commission's January 15, 1971, action, and for other relief as set forth in paragraph 5, above, IS DENIED. As stated above, we shall defer further consideration of the alleged discrimination in employment practices until completion of the court proceedings.

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

DISSENTBY: JOHNSON

DISSENT:

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

With this decision on the complaints against KSAN the Commission refuses to examine in detail complaints of employment discrimination, failure by a licensee to serve its listening audience, abdication by a licensee of its continuing responsibility to program for its community, and withholding valuable and relevant information from the public.

I dissent.

Station KEST, formerly KSOL, is a Class 4 station (1,000-watt daytime, 250-watt nighttime facility) which until September 21, 1970, had been serving the Black Community of San Francisco with the licensee's format characterized as "specialized Negro oriented programming." n1 KSOL was the only radio station in San Francisco which maintained a programming format primarily serving the Black community. Since KSOL has discontinued its Black oriented programming, station KDIA is the only remaining station with programming catering principally to the Black Community of the Bay Area. KDIA is an Oakland-based station located ten miles across the Bay from San Francisco.

n1 Letter to the F.C.C. dated September 15, 1970.

Since October 1, 1970, numerous complaints have been filed with the Commission against KSAN, Inc., the licensee of radio station KEST, alleging that the station is failing to serve the Black community, that it has engaged in discriminatory employment practices, [*913] and objecting to the change of call letters from KSOL to KEST. On January 15, 1971, the Commission notified a number of complainants it was deferring consideration of complaints that KSAN had discriminated against six black disc jockeys it had discharged. The disc jockeys filed a civil suit alleging, among other things, that KSAN, Inc., had violated Section 73.125 of the Commission's Rules which prohibit broadcast station licensees from discriminating in employment on the basis of sex, race, color, national origin or religion. The suit is now pending. The Commission also notified KSOL that the station had not violated any rule or policy of the Commission by changing its entertainment format from music oriented exclusively for the Black community to "popular-middle-of-the-road" music.

In its January 15th letter responding to the complaints requesting Commission investigation into alleged employment discrimination and the program format change, the Commission stated that it was deferring further consideration of the discrimination charges due to the fact that a suit had been filed in the Federal District Court. The Commission noted the licensee's assertion that it had "attempted to maintain its former schedule of non-entertainment programming of particular interest to black residents of its service area," and then expressed the Commission's belief that in changing its format the licensee acted within its discretion and violated no rule or Commission policy.

I dissented to that decision, which is attached as an Appendix. n2

n2 Dissenting Opinion of Commissioner Nicholas Johnson, F.C.C. Report No. 9628, January 27, 1971.

A Petition for Reconsideration of the Commission's earlier action has now been filed with the Commission asking that the Commission:

(1) Withdraw its letters of January 15, 1971, in this matter;

(2) Initiate an inquiry in the charges of employment discrimination;

(3) Find that KSAN, Inc., failed to make a showing that the format change at issue was consistent with the public interest, convenience and necessity;

(4) Direct KSAN, Inc., to show cause why it should not cease and desist from broadcasting "middle-of-the-road" music, or, alternatively, find that it had "failed to make the requisite public interest showing to justify its format change, and that this failure will be considered when... [its] renewal term next expires;"

(5) Make available the financial statements of all stations in the San Francisco/Oakland area;

(6) Rule on the complaints of Reverend George C. Collins, Jr., Associate Director, and Reverend Robert Davidson, Jr., staff member, Joint Strategy and Action Commission, Northern California Council of Churches, that the licensee of KEST failed to make available for their inspection the records of that station as required by section 526 of the Commission's Rules. n3

n3 Petition for Reconsideration of Commission Action, and Disclosure of San Francisco/Oakland Radio Station Financial Reports.

The events surrounding the actual program change itself demonstrate the licensee's lack of sensitivity to its listening public and its obligations to serve their needs. The change of format occurred virtually [*914] overnight. When the former employees reported for work they found the locks on the studio had been changed and learned they had been fired. Several hundred demonstrators assembled in front of the studio to protest KSOL's change. Hundreds of letters from outraged listeners, and petitions including 1,000 individuals and a dozen community organizations, were received by the Commission. Five of the former announcers filed suit in United States District Court alleging racial discrimination and breach of contract, and asked for reinstatement and compensatory damages. Eleven local organizations, including the Oakland Black Caucus, the National Association for the Advancement of Color People (NAACP), and the Northern California Council of Churches, protested KSOL's programming and discriminatory practices.

The Commission has now decided to deny the Petition for Reconsideration.

I. Employment Discrimination

The Commission argues that Section 1.106(a) of the Commission's Rules prohibits the Commission from entertaining "Petitions requesting reconsideration of an interlocutory ruling made by the Commission." In its Opinion the Commission adopted KSAN's contention that: "Inasmuch as the Commission's letter of January 15, 1971, did not finally dispose of the requests for investigation into KEST's allegedly discriminatory employment practices,... but only deferred consideration thereof, the Commission's ruling did not constitute final adjudication of the matter and, therefore, could not be the subject of a petition for reconsideration." n4

n4 Majority Opinion, p. 4.

In essence, the Commission has refused to examine a prima facie case of racial discrimination by a licensee against some of its employees for the sole reason that those employees have also sought relief from a Federal Court in San Francisco. Not only is there no precedent for this refusal to examine a claimed denial of fundamental rights, it also runs counter to the strong Federal policy of protection of such rights.

The claim that this Petition is interlocutory is utterly without basis. There was no related pending proceeding before the Commission, no hearing which a petition for reconsideration would delay, no possibility of inconsistent action on the part of the Commission in related pending matters (both principal reasons for prohibiting petitions for reconsideration on interlocutory rulings) and further, no danger that the Commission process would be abused. n5 In fact, by filing the Petition for Reconsideration the petitioners have primarily sought to have the Commission reconsider its decision to defer any action until the outcome of the civil litigation. The Commission's reasoning is circular. They defer action because a case is pending elsewhere, and then they deny a Petition for Reconsideration of the decision to defer action because they have decided to defer action.

n5 The Commission cites Columbia Empire Broadcasting Corporation (WNDO) 7 RR 2d 502 (1966) to support the proposition that a Commission decision to defer action until after court proceedings does not constitute a final disposition and therefore a petition to reconsider was inappropriate. However, in the Columbia case the Commission deferred decision on a license renewal because of a related proceeding pending before the Commission. The other cases cited by the majority are equally unsupportive in that they involved related pending proceedings.

[*915] But the real issue is not whether the Commission decision to defer consideration is interlocutory in nature, but whether the Commission has inappropriately declined to rule on the issue of racial discrimination by a licensee and address the substantive issues presented, ignoring inquiries from the U.S. Commission on Human Rights and the Community Relations Service of the Justice Department with the unprecedented excuse that related claims are now before a Federal District Court.

In support of its abdication, the only case which the majority cites that is even remotely on point is Wometco Enterprises, Inc., (WTVJ) 9 FCC2d 535 (1967) -- and it is inapplicable. In that case petitioners sought to deny a renewal application alleging that the licensee engaged in monopolistic and fraudulent practices in violation of anti-trust provisions. That case has no bearing at all on the present case, first because the provisions in that case were not F.C.C. Rules and Regulations, but instead were provisions of the Federal antitrust law which are particularly within the jurisdiction of the Federal courts. The F.C.C. would naturally defer to the special competence and expertise of the Federal courts in interpreting and applying such provisions. In the case before us, petitioners are asking the Commission to interpret and apply its own Rules and Regulations, an area where it is presumed to have special competence and expertise. Secondly, the Federal court suit related to this case is primarily a claim under 42 U.S. § 1981, the Civil Rights Act. The claim for relief for violation of F.C.C. Rules and Regulations is made only secondarily and in the alternative, and the District Court judge may well not rule on the F.C.C. claim, which involves no provision of the Communications Act, and which, under the doctrine of exhaustion of administrative remedies, is more properly considered by this Commission. Finally, Wometco did not involve racial discrimination -- a matter subject to one of the strongest Federal policies from all three branches of this Government.

In fact, in denying the petitioners a ruling on the merits of its racial discrimination complaint the Commission totally ignores past Commission precedent and policy. Our regulations specifically require that all licensees afford equal opportunity in employment. n6 The Commission has a responsibility under law to enforce this provision. Also, in issuing its 1969 equal employment rules, the Commission stated:

n6 47 C.F.R. § 73.125.

The importance and urgency of the equal employment opportunity policy in the areas covered command its implementation on every appropriate front... It is also clear that we have an independent responsibility to effectuate such a strong national policy in broadcasting, and that we need not await a judgment of discrimination by some other forum or tribunal. 18 FCC2d 240, 241 (1969). n7 (Emphasis added.)

n7 18 F.C.C. 2d 240, 241 (1969).

In the face of such a clearly enunciated policy, I believe the Commission has abdicated its legal responsibility to investigate the charges of employment discrimination now before us.

I believe there is a substantial basis for inquiry into the charges of discrimination. The licensee claims that the six black announcers were terminated "as a result of the change in format because they were [*916] rhythm and blues personalities and the professional skills and experience of the announcers who were terminated were not consistent with the new format... Ours [KSOL's black announcers]..., in the opinion of management, were not capable of performing in that format because, to the best of our knowledge, none had any prior experience in any field other than black-oriented 'soul' music." n8

n8 Letter to the F.C.C. dated November 2, 1970.

As I stated in the earlier KSOL dissent I find this reasoning repugnant. The suggestion that blacks are suitable for Black shows but not for "middle-of-the-road" shows is an almost classic racist statement -- precisely what our equal employment rules are all about. In any event, KSOL has not made a showing as to how the qualifications for the two positions are different, if in fact they are, which I doubt.

Much more disturbing, however, is the fact that there is no suggestion whatsoever that these employees were given a reasonable opportunity to obtain whatever training that might be required for the format change -- even though our regulations specifically provide that each station "shall establish, maintain, and carry out" an equal employment opportunity program, and that under the terms of its program, a station shall:

Conduct continuing review of job structure and employment practices and adopt positive recruitment, training, job design, and other measures needed in order to insure genuine equality of opportunity... n9

n9 47 C.F.R. § 73.125(b)(5).

As I stated in the KSOL dissent: "The licensee's conduct in this case can only be interpreted as a flagrant and deliberate violation of this provision, because the licensee not only failed to train the black announcers for the new format, but it also apparently concealed the planned change of format from those employees." n10

n10 Supra note 2, p. 12.

Also, the licensee's suggestion that it took steps to prepare some of its employees for their sudden firing is simply not plausible. The licensee stated:

Knowing that this formatic change would occur, the licensee offered to assist those employees who would be affected by the change by sending each of them to the School of Communications & Electronics so that they could obtain their first-class licenses... None of the four men involved who indicated their willingness to participate in this schooling completed the course, which of course destroyed the ability of the licensee to replace these men at the time of the formatic change. n11

n11 Letter to the F.C.C. dated October 10, 1970.

But nowhere in the licensee's submissions relating to the Communications School is there even a hint of warning to the employees that the First Class license course is in any way concerned with a change of format or the possibility of sudden termination; in other words, although the licensee admits that it was aware at least six months ahead of time that there would be a format change, it apparently did not inform its employees. In fact, the station first failed to be forthright with its black employees, effectively preventing them from taking whatever steps might be necessary to prepare themselves for a new format, and then used their lack of preparation as an excuse for firing them. It seems to me that this is another "area of factual inquiry [*917] clamoring for the clarifying influence of direct testimony subject to cross-examination." n12 Based on the facts now before the Commission, its refusal to act is incomprehensible to me.

n12 The Citizens Committee to preserve the present programming of the "Voice of the Arts in Atlanta on WGKA-AM and FM" v. F.C.C. U.S.A. App. D.C. , F.2d , No. 23, 515, slip opinion p. 12 (October 30, 1970).

II. Change of Format

On the change of format issue, I continue to adhere to the views expressed in my initial dissenting opinion. Nevertheless, I feel compelled to address the majority's attempt to rewrite history by an ipse dixit which would have the effect of barring the listening public from ever challenging a format change until the end of the license term. The majority concedes, as it must, that in our adoption of the AM and FM Program Form, 1 FCC 2d 439 (1965), we held that licensees have the responsibility to advise the Commission of any "substantial change" in program format and that: "If the type of change raises serious public interest questions, the licensee will be so advised and an inquiry may be made in order to ascertain complete details...." n13 (Emphasis added) At the very least, this language clearly imposes upon the Commission the obligation to determine whether such "serious public interest questions" have been raised, since the opinion states that the licensee "will be so advised." Moreover, the Commission reserved the right to make an inquiry if the facts are insufficiently complete to enable it to make the public interest determination. Plainly then, this language indicates (1) that a change of format can raise serious public interest questions, (2) that the Commission will make a determination sufficient to advise licensees if such questions are raised, and (3) that the Commission will, if necessary to that determination, make an inquiry into the facts.

n13 AM and FM Program Form, 1 F.C.C. 2d 439, 441 (1965).

In view of the licensee's obligation to "seek out and be responsive to a community's needs and interests," In re Application of City of Camden, 18 FCC 2d 412 (1969), it is not only logical, but compelled, that a licensee has the duty of demonstrating that program format changes are consistent with the public interest. Isn't that the conclusion basic to this Commission's responsibility to the public interest?

In the case now before us, the Commission majority says: "No!" In paragraph 10, they state:

The Report and Order [ AM & FM Program Form, supra] did not impose upon licensees a duty to demonstrate that program format changes made during the license term were consistent with the public interest, but only the duty of notifying the Commission of "substantial changes" in program format. The initiative for action responsive to notification of any such change was placed upon the Commission. It necessarily follows that licensee was under no duty to demonstrate that the public interest was served by the format change even if the change were to be considered a "substantial" one. n14

n14 Supra note 4, p. 5.

Such language succeeds in insulating broadcasters from legal challenges by the listening public, but is hard to square with the law and any conceivable definition of the public interest.

The Commission majority also misstates our holding in KNOK Broadcasting, Inc., 29 FCC 2d 47, 51 (1971). The majority claims that in KNOK,

[*918] We said that we would not "permit the Commission's processes to be employed to subject to litigation during its license term a licensee electing to change its entertainment program format." n15

n15 Id., p. 6.

This broad dictum is considerably narrowed by the sentence in the KNOK opinion immediately following in the same paragraph:

KKDA's [the station which changed its format] decision in this regard may well operate to the economic disadvantage of KNOK [a competitor seeking either revocation or a premature renewal hearing], but that fact, standing alone, does not raise the type of public interest question requiring resolution through the hearing process. n16

n16 KNOK Broadcasting Inc., 29 F.C.C. 2d 47, 51 (1971).

Thus, KNOK only holds that economic harm to a competitor which may be caused by a change of format "does not raise the type of public interest question requiring resolution through the hearing process." This clearly implies that impact on others, or other format changes, can raise public interest questions requiring a hearing. I believe that the case now before us, where the format change involved abandonment of minority-oriented programming in the context of a prima facie case of racial discrimination, is a classic case of the latter type.

Similarly, the majority's reliance on WCAB, Inc. (WTOS-FM), 27 FCC 2d 743, 21 RR 2d 146 (1971), is misplaced. In that case the Commission determined that the change of format was justified by the fact that the station was "in dire financial straits...." n17 There is no evidence whatsoever that financial loss compelled the change of format in the case now before us. In fact, the majority opinion itself concedes this fact by stating that "While economic considerations were adverted to by KSAN, Inc., such considerations were not the basis of, or any part of, our decision. Nor has KSAN, Inc., itself referred to the [confidential financial] reports." n18

n17 21 RR 2d 146, 152.

n18 Supra note 4, p. 7.

In sum, the majority opinion represents an unsupported, and unsupportable, departure from Commission precedent. It can only be taken as an effort to undermine the Court of Appeals decisions in Voice of the Arts and WONO. n19

n19 Supra note 12. Citizens Committee to preserve the present programming of WONO v. F.C.C., Case No. 71-1336, D.C. Circuit May 13, 1971. The Court, citing Voice of the Arts, summarily reversed and remanded to the Commission for an evidentiary hearing.

III. Financial Data

The Commission denies the petitioners' request for a full and public financial disclosure by KEST with the assertion that the petitioners have not made a "persuasive showing" of reasonable necessity and that the data is not material to the proceedings. The Commission cites KOWL, Inc., 24 FCC 2d 305 (1970), to support this ruling. However, in that case a competing station, seeking to block an application, had asked for financial disclosure in an attempt to demonstrate that the applicant was financially unable to operate a fulltime station. In other words, the station seeking denial of a competitor's application wanted to show that the applicant was financially unstable. The Commission said:

The [financial] reports contain information understandably guarded from competitors as "trade secrets," and the Commission must be circumspect in releasing them. n20

n20 24 F.C.C. 2d 305 (1970).

[*919] The Commission went on to state that petitioner KOWL had not demonstrated that the reports were relevant and material, or that the information contained would be useful on appeal. Significantly, the Commission pointed out that KOWL had the means at its disposal to determine for itself the economic possibilities of the applicant, KTHO.

Quite obviously, for purposes of controverting KTHO's first year estimates for full-time operation, the information contained in its own Forms 324 would be highly material and relevant in testing such estimates since that information would reflect KOWL's actual full-time experience in the same market. Reliance on its own experience is conspicuous by its absence from the total of KOWL's pleadings,... and the "persuasive showing" required by the Commission in cases of this nature cannot be said to have been made by KOWL. n21

n21 Id., p. 306.

In the instant case the petitioners are not competitors, and had no alternative way of acquiring the necessary information. Moreover, the financial issue was first raised by KSAN, Inc., itself in its letter notifying the Commission of the format change.

The Commission also says that the petitioners have not shown how the financial reports would be germane to a reconsideration. Conceding that KSAN, Inc. itself referred to economic considerations, the Commission now says that the reports were not the basis of any part of its decision. But this does not meet the contentions of the petitioners that such reports should have been considered in the decision, and therefore disclosed, because petitioners have been denied the opportunity to use the financial data in support of their own case. For example, if petitioners could show that there was in fact no basis whatsoever for KSAN's representation to the Commission that financial considerations motivated the change of format, that would demonstrate an intentional deception of the Commission, and would almost certainly require further Commission investigation into the actual motivation.

Moreover, as indicated above, the Commission majority itself relies on a case which holds that financial considerations may be the decisive material fact in Commission approval of a change of format. WCAB, Inc. (WTOS-FM), supra. In fact, it is conceivable that the financial data could show that the new format is less profitable, on the average, than the prior black-oriented programming, which would be some evidence of ulterior motives behind the change. Was KSAN willing to take a financial loss in changing format in order to avoid facing a license renewal challenge from the black community? This question must be examined in detail and without doubt will not be fully clarified until the Commission makes available the relevant financial material to the petitioners and the public as well.

The Commission majority relies on Cape Cod Broadcasting Co., Inc. 22 FCC 2d 403 (1970), rev. denied 23 FCC 2d 277 (1970). But in that case a pre-designation financial disclosure was granted to an applicant to allow it to be better able to refute financial questions [a Carroll issue, Carroll Broadcasting Co. v. F.C.C., 258 F. 2d 440 (1958)] raised by a competitor station seeking to deny the application. Thus, the Commission decided that a financial disclosure would be permitted to allow [*920] a party to properly present its case. For the same reasons, the Commission should have allowed financial disclosure to the present petitioners -- especially to the extent necessary to prepare their appeals. n22 Whether the licensee is making a profit or not is certainly a relevant question.

n22 Supra note 20.

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

The Federal Communications Commission today holds, in effect,

(1) That no public interest question is raised when the licensee of the only San Francisco radio station serving the black community decides to abandon black-oriented programming for what it calls a "middle-of-the-road" format served by numerous other stations,

(2) That the F.C.C. will not rule a complaint alleging discriminatory employment practices by a radio station which fired six black announcers while a lawsuit challenging such practices is pending in a Federal District Court, and

(3) That the change of a station's call letters from those identified with the previous format in the context of the dispute, is "fully consistent with Commission rules and policies."

APPENDIX:

JANUARY 15, 1971.

AIR MAIL

REVEREND ROBERT M. DAVIDSON,

Joint Strategy and Action Commission,

Northern California Council of Churches,

83 McAllister Street,

San Francisco, California 94102.

DEAR REVEREND DAVIDSON: This is with further reference to correspondence regarding Station KSOL, San Francisco, California.

In view of the fact that proceedings alleging discrimination in employment practices by the licensee of KSOL have been initiated in Federal District Court in San Francisco by former employees of the station, the Commission has decided to defer further consideration of that matter until completion of the court proceedings.

The Commission has also considered complaints based on a change in the programming of KSOL. In response to Commission inquiry, the licensee asserts that although it has changed its entertainment programming from "rhythm and blues" to "middle-of-the-road" music, it has attempted to maintain its former schedule of non-entertainment programming of particular interest to black residents of its service area. With respect to the change in musical programming, the Commission believes that the licensee acted within its discretion and violated no rule or policy of the Commission.

Sincerely yours,

WILLIAM B. RAY, Chief, Complaints and Compliance Division, for Chief, Broadcast Bureau.

Since October 1, 1970, a number of complaints have been filed with the Commission against KSAN, Inc., licensee of radio station KSOL, San Francisco, California, alleging that the station is failing to serve the black community and that it has engaged in discriminatory employment practices and objecting to its attempt to change its call letters. Related complaints also have been received by the United States Commission on Civil Rights and the Community Relations Service of the Department of Justice, and both agencies have made inquiries to the FCC.

The Commission's response is a decision (1) to ignore the complaints relating to the change of format without offering an explanation for its action, (2) to ignore the complaints of employment discrimination on the ground that related claims are now pending "before the courts," and (3) to send a letter to the complainants notifying them that their objections to the call letter change has been dismissed. By direction of the Commission, the attached letters were sent to a number of complainants.

I dissent.

KSOL is a Class 4 station (a 1,000-watt daytime, 250-watt nighttime facility) which until September 21, 1970, had been serving the black community with what the licensee characterized as "specialized Negro oriented programming." n1 KSOL was the only radio station in San Francisco which directed its programming primarily at serving the black community. The only other radio station with black-oriented programming which puts any signal over San Francisco is KDIA, a 5,000 watt, full-time, Class 3 facility assigned to Oakland, California.

n1 Letter from licensee to FCC, dated September 15, 1970.

The licensee of KSOL places great emphasis on the service provided by KDIA; it argues:

... The Negro community will continue to be served competently by the 100% Negro oriented programming of KDIA. According to all accepted rating sources,... KDIA leads KSOL by a wide majority and as a consequence, the change in format on KSOL will have little effect on the over-all Negro listenership... n2

n2 Id.

Obviously, the complainants do not agree.

The licensee glosses over the fact that KSOL is a San Francisco station and KDIA is an Oakland station by treating the issue as a "San Francisco Bay Area" question. Thus, it states: "According to the 1969 census, Negros comprise only 9.7% of the total population of the Greater San Francisco Bay/Oakland area...." n3 This approach ignores the fact that the black communities of Oakland and San Francisco are distinct communities with differing problems and different leaders. A complainant from San Francisco wrote that "it is an absolute outrage that the only Black radio station is San Francisco is no longer in existence. I feel that this is an injustice to all concerned...." n4

n3 Id.

n4 Letter from Miss Paula Farley to FCC, dated September 25, 1970.

Nevertheless, a letter from the Rev. Robert Davidson, Jr., of the Joint Strategy and Action Commission of the Northern California Council of Churches, addresses itself directly to the Bay Area argument. The letter states:

There are more than 60 AM and FM radio stations serving the San Francisco Bay Area with programs. Only two of those stations devoted themselves to serving the black community. The KSOL action reduces by one-half that service. ... We ask that the Federal Communications Commission judge whether KSOL has made any valid effort at ascertainment of community need which would justify its change in service. Its new programming duplicates that of at least a dozen stations in the area. n5

n5 Letter to FCC dated October 7, 1970.

That there is community concern seems obvious.

The employment discrimination complaints relate directly to the change of programming format, as the licensee concedes KSOL had previously featured "rhythm and blues" or, as its call letters suggest, "soul" music. It employed nine blacks -- three full-time and four part-time announcers, a sales manager and a salesman. On September 21, 1970, the licensee changed its music format and terminated the employment of six of its nine black employees -- the three full-time and three part-time announcers. In a letter to the FCC, the licensee explained that "will the format change it was decided by management that certain of the announcers would not be able satisfactorily to handle the new format...."

n6 Letter to FCC dated October 7, 1970.

It is self-evident that the licensee's request to change the station's call-letters from KSOL to KEST is also directly related to the change of programming format.

In its Report and Order in Docket No. 13961 amending Section IV of the application forms, the Commission stated in paragraph 12:

Because the proposals [in the renewal forms] as to programming and commercial matter are representations relied upon by the Commission in determining whether grant of an application is in the public interest, licensees are given the responsibility to advise the Commission whenever substantial changes occur. ... Obvious examples of the type of program format altyeration which would be reported are a change in format from popular music and news to all talk or all news;... If the type of change raises serious public interest questions, the licensee will be so advised and an inquiry may be made in order to ascertain complete details.... n7

n7 1 F.C.C. 2d 439, 441 (1965) (emphasis added).

Clearly, the change in format at issue here is a "substantial change" requiring notification of the FCC; the licensee apparently does not dispute this point, since it notified the Commission on its own initiative. The question presented, therefore, is whether the change raises "serious public interest questions" which should compel further Commission inquiry.

It is a longstanding and well-established policy of the Commission that a licensee's obligation to serve the public interest, convenience and necessity includes a continuing obligation to "seek out and be responsive to a community's needs and interests." n8 Thus, in Sioux Empire Broadcasting Co., we said, in part:

n8 In re Application of City of Camden, released June 13, 1969, FCC 69-644 18 FCC 2d 412 (1969) See Commission En Banc Programming Inquiry, FCC 60-970, 20 RR 1901 (1960); Minshall Broadcasting Co., 11 FCC 2d 796 (1968); Suburban Broadcasters, 30 FCC 1021 (1961); Public Notice Relating to Ascertainment of Community Needs by Broadcast Applicants, FCC 68-847, released August 22, 1968, 13 RR 2d 1903.

... As early as 1960 we had occasion to indicate that "the principal ingredient of the licensee's obligation to operate his station in the public interest is the diligent, positive and continuing effort by the licensee to discover and fulfill the tastes, needs, and desires of his community, or service area for broadcast service." Report and Statement of Policy Re: Commission En Banc Programming Inquiry, FCC 60-970, released July 29, 1960, 20 RR 1901, 1915 (1960). (Emphasis added.) The importance of this matter was emphasized in our Report and Order of 1965, amending Section IV of the broadcast application form, where we stressed that "the Commission has an interest in how the licensee discovers the needs of his community and what he does to meet those needs." 1 FCC 2d 439, 442 (1965). We again stated in our Report and Order, 5 FCC 2d 175, 178 (1966), amending the television application form, that a broadcast applicant must make a "diligent and continuing effort to provide a program schedule designed to serve the needs and interests of the public."

The primary purpose of this policy is to guarantee "that the programming service will be rooted in the people whom the station is obligated to serve and who will be in a much better position to see that the obligation to them is fulfilled, thus lessening the enforcement burden of the Commission." Public Notice Relating to Ascertainment of Community Needs by Broadcast Applicants, FCC 68-847, released August 22, 1968, 13 RR 2d 1903. In that same Public Notice and in Minshall, supra, we have reiterated the elements that must be shown in support of each program proposal. In line with our long standing policy, each applicant is now required to show his consultations with community leaders to become informed of the real needs and interests of the area to be served, the suggestions that he received in those consultations as to community needs, and the specific programs that he has proposed to meet particular community needs, as he has evaluated them. n9

n9 FCC 69-213, 16 FCC 2d 995 (1969) (footnote omitted).

KSOL is currently operating with a "middle-of-the-road" format although its most recent "Ascertainment of Community Needs" statement on file with the Commission, dated September 1, 1968, is focused almost exclusively on its previous service directed at the black community. The licensee of KSOL has made no attempt to fulfill its continuing obligation to ascertain the community's needs, tests and desires as they relate to its change of programming format even though we have held that ascertainment is "the principal ingredient of the licensee's obligation to operate his station in the public interest...." n10 This ignoring of Commission policy clearly raises "substantial public interest questions."

n10 Report and Statement of Policy Re: Commission En Banc Programming Inquiry, FCC 69-970, relased July 29, 1960, 20 RR 1901, 1915 (1960).

Of course, the licensee makes a number of self-serving assertions; for example:

It is our belief also that a substantial number of Black citizens of the community will be interested in the new KSOL format...

This middle-of-the-road music policy will expand our broadcasting ease to better serve the Bay area residents and the 750,000 inhabitants of San Francisco. There is only one other San Francisco radio station currently programming a similar format and we respectfully submit that the public need and interest will be more widely served by our instituting this format change. n11

n11 Letter to FCC dated September 15, 1970.

The claim that there is only one other San Francisco station programming a similar format is disputed by the Broadcast Bureau which has told me informally that there are at least five comparable San Francisco stations with a similar "middle-of-the-road format." Moreover, the licensee itself has claimed, by implication at least, that the relevant area is the San Francisco Bay Area, and one of the complainants quoted above, the Joint Strategy and Action Commission, claims that KSOL's new programming duplicates that of at least a dozen stations in the area." The fact is that the Commission does not have the facts. As Judge McGrowan of the United States Court of Appeals recently declared in another case of Commission avoidance of citizen outrage:

The truth is most likely to be refined and discovered in the crucible of an evidentiary hearing, and it is precisely a situation like the one revealed by this record which motivated the Congress to stress the availability to the Commission of the hearing procedure. The controversy that developed in this case is the one that characteristically continues to be blurred until it is subjected to the adversary process-inside the hearing room, and not out. n12

n12 The Citizens Committee to preserve the present programming of the "Voice of the Arts in Atlanta on WGKA-AM and FM" v. FCC, -- U.S. App. D.C. , F 2d , No. 23,515, slip opinion, p. 15 (Oct. 30, 1970) [hereinafter "Voice of the Arts"].

Instead of using its powers to discover the facts, the Commission has chosen to abdicate.

Another "area of factual inquiry clamoring for the clarifying influence of direct testimony subject to cross-examination" n13 is the licensee's attempt to justify the change of format as "predicated in part on the competitive situation caused by KDIA with its far superior technical facilities." n14 Although KDIA is more profitable than KSOL, the Broadcast Bureau has informed me that KSOL has operated at a net profit for the last two years and has had substantial revenues for its size. In fact, according to the Bureau, KSOL is operating on a basis that is more profitable than, or at least as profitable as, 10 of the 18 comparable stations in San Francisco, including at least five stations with "middle-of-the-road" programming. In any event, as the U.S. Court of Appeals had recently pointed out in another (less compelling) case involving a substantial alteration in a program format incident to a change of ownership of a licensee: "The prospect that a change in programming might increase profits does not... include of its own force the question of who should be the licensee." n15 If the prospect of an increase in profits does not conclude of its own force the public interest question in a change of format incident to a change of ownership, I see no reason why it should have any greater weight in resolving the public interest question raised by a licensee's change of format from minority-oriented programming to "middle-of-the-road" programming. But, notwithstanding this substantive issue, even if it were decisive, the Commission simply does not have the facts needed for a rational decision regarding profitability either.

n13 Id., p. 12.

n14 Letter to FCC dated October 7, 1970.

n15 Voice of the Arts, supra note 12, at 11, 12.

When the licensee argues that "the public need and interest will be more widely served by our instituting this format change," n16 its reasoning includes a premise of majority rule in broadcasting which has recently been condemned by the Court of Appeals in the leading "Voice of the Arts in Atlanta" case. n17 As Judge McGowan said:

n16 Letter to FCC dated September 15, 1970.

n17 Supra note 12.

The Commission's point of departure seems to be that, if the programming contemplated... is shown to be favored by a significant number of the residents of Atlanta, then a determination to use that format is a judgment for the broadcaster to make, and not the Commission. Thus, so the argument proceeds, since only some 16% of the residents of Atlanta appear to prefer classical music, there can be no question that the public interest is served if the much larger number remaining are given what they say they like best.

In a democracy like ours this might, of course, make perfect sense if there were only one radio channel available to Atlanta. Its rationality becomes less plain when it is remembered that there are some 20 such channels, all owned by the people as a whole, classic lovers and rock enthusiasts alike. The public interest, convenience, and necessity can be served in the one way that it cannot in the other, since it is surely in the public interest as that was conceived of by a Congress representative of all the people, for all major aspects of contemporary culture to be accommodated by the commonly-owned public resources whenever that is technically and economically feasible. n18

n18 Id. at 10. (emphasis added).

The Court went on to observe that 16% is not an insignificant portion of the people who make up Atlanta; and their minority position does not exclude them from consideration in such matters as the allocation of radio channels for the greatest good of the greatest number. The Commission's judgmental function does not end simply upon a showing that a numerical majority prefer the Beatles to Beethoven impressive as that fact may be in the eyes of the advertisers. n19

n19 Id. at 10, 11.

The licensee refers to the black community, some 238,754 citizens according to its own figures, as "this small group." However, even according to the 1960 census, over 14% of the residents of the "inner city" of the Bay Area are black, and by whatever measure, the black population is certainly "a major aspect of contemporary culture" of the Bay Area.

I trust it is unnecessary to discuss at length the extent to which even this Commission has noted that the broadcasters' special implication in American's race relations goes well beyond its responsibility to other minority groups such as classical music lovers. n20

n20 Our regulations provide unequivocally that "Equal opportunity in employment shall be afforded by all licensees... to all qualified persons, and no person shall be discriminated against in employment because of race, color, religion, or national origin." 47 C.F.R. § 73.125(a). (emphasis added). See also, Nondiscrimination in Broadcast Employment, Report and Order released June 6, 1969, 18 FCC 2d 240, 16 RR 2d 1561; Report and Order released June 3, 1970, 23 FCC 2d 430, 19 RR 2d 1571.

Compare the Kerner Commission's emphasis on the media's responsibility and pivotal role in race relations in this country:

The Commission's major concern with the news media is not in riot reporting, as such, but in the failure to report adequately on race relations and ghetto problems and to bring more Negroes into journalism... The communications media, ironically, have failed to communicate... They have not shown understanding or appreciation of -- and thus have not communicated -- a sense of Negro culture, thought, or history. Report of the National Advisory Commission on Civil Disorders, 1968.

The licensee's answer to this is that "The Negro community will continue to be served competently by the 100% Negro oriented programming of KDIA" together with a few black-oriented programs which KSOL says it intends to broadcast. n21 As indicated above, this is mere conjecture as far as the record before this Commission is concerned, and it is contradicted by a substantial number of complaints. Moreover, in KDIA's most recent "Statement of AM or FM Program Service," on file with the Commission and dated August 24, 1968, the licensee states: "KDIA is the only Negro oriented radio station in the East Bay Area." In its "Ascertainment of Community Needs," filed as Exhibit 1, the licensee describes "a meeting of a broad cross section of community leaders from the entire area locally referred to as the 'East Bay,' which includes the cities of Oakland, Berkeley and Richmond." KDIA also claims, in the same Exhibit, that although it does have sizeable audiences in San Francisco, Berkeley, and Richmond, "primary emphasis is placed on serving the city of Oakland as the city of license, which has a population of 35% Negroes...." An examination of the remainder of KDIA's "Ascertainment" statement lends support to this assertion of primary orientation toward Oakland.

n21 Letter to FCC dated September 15, 1970.

Thus, what the Commission is in fact sanctioning is the silencing of the only radio station directed primarily to ward serving the black citizens of one of our most important cities. To my mind, this not only raises "substantial public interest questions," it is also de facto against the public interest, based on the limited facts which are now before the Commission.

I also believe that there is a substantial basis for Commission inquiry into the charges of employment discrimination. The licensee claims that the six black announcers were terminated

As a result of the change in format because they were rhythm and blues personalities and the professional skills and experience of the announcers who were terminated were not consistent with the new format... Ours [KSOL's black announcers]..., in the opinion of management, were not capable of performing in that format because, to the best of our knowledge, none had any prior experience in any field other than black-oriented "soul" music. n22

n22 Letter to FCC dated November 2, 1970.

I find the tone of this reasoning repugnant in its suggestion that blacks are OK for black shows but not for "middle-of-the-road" shows. KSOL has made no showing as to how the qualifications for the two positions might differ, if tin that they should, which I tend to doubt. Much more disturbing, however, is the fact that there is no suggestion whatsoever that these employees were given a reasonable opportunity to obtain whatever training that might be required for "middle-of-the-road" music; even though our regulations specifically provide that each station "shall establish, maintain, and carry out" an equal employment opportunity program, and that under the terms of its program, a station shall:

(5) Conduct continuing review of job structure and employment practices and adopt positive recruitment, training, job design, and other measures needed in order to insure genuine equality of opportunity... n23

n23 47 C.F.R. § 73.125(b)(5). See also supra note 20.

Clearly, the licensee's conduct in this case can only be interpreted as a flagrant and deliberate violation of this provision, because the licensee not only failed to train the black announcers for the new format, but it also apparently concealed the planned change of format from those employees.

I consider the licensee's suggestion that it took steps to prepare some of its employees for their sudden firing disingenuous at best. The licensee states:

Knowing that this formatic change would occur, the licensee offered to assist those employees who would be affected by the change by sending each of them to the School of Communications Electronics so that they could obtain their first class licenses... None of the four men involved who indicated their willingness to participate in this schooling completed the course, which of course destroyed the ability of the licensee to replace these men at the time of the formatic change. n24

n24 Letter to FCC dated October 7, 1970.

An examination of the licensee's submissions relating to the Communications School reveals that there is not even a hint of warning to the employees that the First Class License course is in any way related to a contemplated change of format or the possibility of sudden termination; in other words, even though the licensee concedes that it know at least six months ahead of time that a change of format would occur, it apparently concealed that fact from its employees. Thus, by its failure to be candid with its black employees, the licensee precluded them from taking whatever steps might be necessary to prepare themselves for a new format, and then used the lack of preparation as an excuse for firing them. In these circumstances, I can only conclude that the licensee is responsible for intentionally creating an excuse for firing six black announcers. This is simply another "area of factual inquiry clamoring for the clarifying influence of direct testimony subject to cross-examination." n25 However, based on the facts now before the Commission, there is a prima facie case of racial discrimination.

n25 Supra, note 12.

Nevertheless, the Commission majority abdicates its responsibility on this issue as well, ignoring inquiries from the U.S. Commission on Human Rights and the Community Relations Service of the Justice Department with the unprecedented excuse that related claims are now before a federal District Court. The FCC regulations specifically require that all licensees afford equal opportunity in employment, n26 and we have a responsibility under law to enforce that provision.

n26 47 C.F.R. § 73.125.

Finally, it is apparent to all concerned that the change of call letters is obviously intended to erase the "soul" or "100% black orientation" image of KSOL and is therefore inseparable from the other issues raised by his case. The Commission majority plays ostrich when it declares, in this context, that the change in call letters "would be fully consistent with Commission rules and policies governing call sign changes."

There is one additional matter which concerns me. The FCC file on the case contains an unexplained letter from the Oakland Black Caucus to KSOL, dated September 10, 1970, which states, in part:

For several months, the Oakland Black Caucus have been monitoring your station...

It has come to the attention of the Oakland Black Caucus that KSOL Radio Station is not attempting nor is it meeting the needs of the black community...

In fact, KSOL Radio Station takes the black community as a joke. It does not take it seriously at all...

Could it be that the white owners of KSOL balked at the increasing social awareness of the black community and took what they saw as the easy way out, rather than face a possible license renewal challenge this year? This case literally cries out for "the crucible of an evidentiary hearing." n27

n27 Supra, note 12.

JANUARY 15, 1971.

AIR MAIL REVEREND ROBERT M. DAVIDSON, Joint Strategy and Action Commission, Northern California Council of Churches, 83 McAllister Street, San Francisco, California 94102.

DEAR REVEREND DAVIDSON: This is with further reference to correspondence regarding Station KSOL, San Francisco, California.

The Commission has also considered complaints based on a change in the programming of KSl. i/n response to Commission inquiry, the licensee assets that although it has changed its entertainment programming from "rhythm and blues" to "middle-of-the-road" music, it has attempted to maintain its former schedule of non-entertainment programming of particular interest to black residents of its service area. With respect to the change in musical programming, the Commission believes that the licensee acted within its discretion and violated no rule or policy of the Commission.

Sincerely yours,

WILLIAM B. RAY, Chief, Complaints and Compliance Division, for Chief, Broadcast Bureau.

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

The Federal Communications Commission today holds, in effect,

(2) That the F.C.C. will not rule on a complaint alleging discriminator employment practices by a radio station which fired six black announcers while a lawsuit challenging such practices is pending in a Federal District Court, and

(3) That the change of a station's call letters from those identified with the previous format in the context of the dispute, is "fully consistent with Commission rules and policies."