In Re Application of WGN of COLORADO, INC., DENVER, COLO.
For Renewal of License for Station KWGN-TV
File
No. BRCT-104
FEDERAL
COMMUNICATIONS COMMISSION
31 F.C.C.2d 413
RELEASE-NUMBER: FCC 71-827
August 25, 1971 Released
Adopted August 4, 1971
JUDGES:
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.
COMMISSIONER HOUSER ABSENT.
OPINION:
[*413] 1. The
Commission has before it for consideration: (a) the above-captioned application
for renewal of license of Station KWGN-TV, Denver, Colorado filed by WGN of
Colorado, Inc. (licensee); (b) a Petition to Deny the above-captioned license
renewal application filed on March 16, 1971, by the Colorado Committee on the
Mass Media and the Spanish-Surnamed, Inc. (Committee); n1 and, (c) the licensee's Opposition to the Petition
to Deny, filed on March 31, 1971.
n1 The Committee claims to be
responsible to the Mexican-American, Hispanic-American and the Spanish-Surnamed
community of Colorado.
STATEMENT OF FACTS
2. Initially, by way of
background, it is noted that by Memorandum Opinion and Order adopted on March
4, 1971, the Commission granted the Committee an extension of time until March
12, 1971, to file petitions to deny the renewal applications of 46 Colorado
broadcast stations (28 F.C.C. 2d 375). By letters of March 12, 1971, and March
14, 1971, the Committee requested a further extension of time until March 19,
1971, or, alternatively, an extension until March 15, 1971. By letter
dated March 17, 1971, this request for a further extension of time was denied
(29 F.C.C. 2d 11). Nevertheless, on March 16, 1971, the Committee filed its
petition to deny the above-captioned license renewal application for
KWGN-TV. Since the petition to deny was filed four days after the
extension granted by the Commission it does not meet the requirements with
respect to timeliness and is thus procedurally defective. Sound
regulation, of course, has procedural as well as substantive elements, and the public
interest comprehends both. Consequently, in view of the dilatoriness in
raising their objections, we believe that the record before us warrants the
dismissal of the Committee's petition as coming too late. However, even
considering the substance of the Committee's objections under Section 1.587 of
the rules, we cannot say that the facts, or alleged facts, warrant designating
the above-captioned license renewal application for hearing.
[*414] 3. The
Committee first alleges that the licensee has failed to ascertain the problems
of its service area, particularly with regard to the Spanish-Surnamed (Chicano)
community. In support of this contention the Committee points out that
the licensee's Advisory Council, organized in 1954 and composed of 54 members, has
only three Chicano members (an elected official, the head of the Denver
Department of Welfare, and a doctor). It is the Committee's position that
placement of only three Chicanos on the Advisory Council does not meet the
Commission's requirement of consulting with the community leaders of a
significant segment of the community, since the Chicano community is not a
monolithic community. Further, the Committee contends that the licensee
has not consulted with Chicanos who represent the "unorganized segments"
of the Chicano community. The licensee, in its opposition, stresses that
its consultations with members of the KWGN Television Advisory Council
"form only a part of the continuing relationship that station personnel
maintain with representatives of civic, racial, ethnic, and cultural
groups..." (Opposition, p. 3). The licensee notes that, in addition
to the Television Advisory Council, it conducted a survey of the Denver,
Colorado area to ascertain the needs and interest of the public served by the station.
Regarding this survey, the licensee notes that it interviewed several
Spanish-Surnamed community leaders, namely, Miss Marcella Trujillo of La Raza
Unida (The United Race); James A. Garcia, Associate Director, Metro Denver
Urban Coalition; and Armando R. Atencio, Chairman, American G. I. Forum,
Skyline Chapter. The licensee also notes that other problems confronting
the Chicano community were learned from representatives of the Colorado and
Denver Commissions on Civil Rights, Denver Opportunity, and the Metro Denver
Fair Housing Center, Inc. Further, the licensee points out that its
survey of the general public included a 7% response from Spanish-Surnamed
individuals in the service area.
4. The Committee also alleges
that the licensee has failed to maintain nondiscriminatory employment
practices. In support of this allegation the Committee draws certain
presumptions from the Commission's rules concerning nondiscrimination
employment practices (Section 73.680). For instance the Committee asserts
that, "... where employment records of a station show that it does not
have any or many Spanish-Surnamed employees on the payroll, the station is
prima facia guilty of discrimination in employment practices based on national
origin..." (Petition, p. 20). In this regard, the Committee states
that "... it follows a fortiori, that stations which have training
programs to make the qualificable into qualified employees, are prima facia
guilty of employment discrimination where they fail to have any or many Spanish-Surnamed
employees" (Petition, p. 20). The Committee also state that, where
the population includes a substantial percentage of Spanish-Surnamed Americans,
a station, which in good faith is attempting to meet its obligations of
nondiscriminatory employment will employ a percentage of Spanish-Surnamed
employees which approximates the percentage of Spanish-Surnamed Americans in
the total population. In this connection, the Committee maintains that
stations which fail to meet this standard are prima facia guilty of employment
discrimination and must rebut this presumption [*415] (Petition, p.
20). The Committee also states that "... where the employment
records of a station show that it has Spanish-Surnamed employees only at the entry-levels
and menial levels of employment, the station is prima facia guilty of
'patronismo'; i.e., employment discrimination on the grounds of national origin
by relegating the Spanish-Surnamed to servile positions..." (Petition, p.
21). With specific reference to the licensee's employment practices, the
Committee points out that of a total of 79 employees of the licensee, only two
(2.4%) are Chicano, while the metropolitan Denver area has a Chicano population
of 9.8% and Denver has a Chicano population of 15.5%. The Committee also
maintains that the two Chicano employees hold "how if not
non-visible" positions of a continuity clerk and a midnight news
announcer. The licensee, in its opposition, maintains that both of its
Chicano employees (a news reporter-editor and a continuity clerk responsible
for maintaining station logs) have positions involving "significant
responsibilities in the successful operation of the station" (Opposition,
p. 4). The licensee also makes reference to its detailed showing in its
renewal application in its program designed to insure equal opportunity in
employment (Renewal Application, Exhibits E-1 and E-2). Further, the
licensee states that of 67 full-time employees, six are from minority groups,
namely, three Black employees (news reporter, engineer, continuity clerk), one
oriental employee (sales traffic clerk), and two Spanish-Surnamed employees
(news reporter-editor, and continuity clerk).
FINDINGS OF FACT
5. The Committee's assertion
that the licensee has failed to ascertain the problems of its service area,
particularly with regard to the Spanish-Surnamed community, is totally
unsupported by the facts. In essence, the Committee's pleading only takes
issue with the composition of the KWGN Television Advisory Council in terms of
the alleged under representation of the Chicano community. However, we
note that the Advisory Council is used by the licensee as part of its efforts
to maintain a continuing relationship with community leaders. In addition
to the efforts of the licensee's Advisory Council, a formal ascertainment
survey was conducted in conjunction with the renewal application. The
community leader portion of this survey consists of interviews with 81
community leaders of the service area, including representatives of the Spanish
community. Furthermore, a survey, primarily by telephone, was made of 500
members of the general public. Moreover, this telephone survey was
supplemented by personal interviews with members of the general public to
insure a statistically reliable sample. The public survey yielded a 7%
response from Spanish-Surnamed individuals. In its renewal application
exhibits the licensee also enumerated and evaluated the problems ascertained,
and proposed programming which, in its judgment, will attempt to meet these
problems. In sum, this record clearly demonstrates that the licensee has
realistically and successfully endeavored to ascertain the needs, interests and
problems from a representative cross-section of persons in that area. It
has effectively analyzed and evaluated these ascertained needs, interests and
problems and set forth programming [*416] proposals specifically
designed to meet those problems. Accordingly, based upon the record in
this case, we find no necessity whatsoever for a hearing under a suburban
issue. Likewise, with regard to the Committee's employment discrimination
allegations, the record before us adequately refutes these assertions.
The Commission's rules require licensees to establish and maintain a positive,
continuing program of specific practices designed to assure equal opportunity
in every aspect of station operation without regard to race, creed, color,
religion, or national origin. In its renewal application exhibits the
licensee has clearly demonstrated that it has such a program.
Furthermore, we also note that the licensee employs members of three minority
groups (see paragraph 4 above). The Committee has submitted no evidence
whatsoever of discrimination by the licensee, nor has the Commission received
any complaints of discrimination from either employees of the licensee or job
applicants. Accordingly, we find that the licensee has not been guilty of
discrimination and, further, that it maintains a program designed to promote
the hiring and training of minority employees. n2
n2 The licensee is working with Mr.
W. Thomas Cook (Chairman of the Department of Speech, Radio and Television at
Metropolitan State College of Denver) toward establishment of a financial
assistance program for minority students. Further, the licensee has
offered to make available the use of its equipment and studio for a
"work-shop" for students.
6. One other matter concerning
this proceeding warrants brief comment. By affidavit, Mr. Richard E.
Jungers, Vice-President and General Manager of WGN of Colorado, Inc., states
that during a meeting held on March 15, 1971, representatives of the Committee
informed him that no agreement would be possible unless KWGN hired two
Spanish-Surnamed employees at salaries of not less than $600 per month. Alternatively,
the Committee offered to withdraw its petition and make no demands for
programming or minority employment if KWGN would make a $15,000 contribution to
the Colorado Committee on the mass media and Spanish-Surnamed, Inc. Mr.
Jungers states further that he found both alternatives unreasonable and,
accordingly, rejected them. These uncontested facts trouble us
greatly. The Commission has consistently encouraged community groups and
licensees to meet in order to resolve their differences, particularly in the
areas of programming and employment practices. We have taken this
approach in the belief that such problems are best resolved at the local level,
rather than through government intrusion. However, while we realize the
great contribution made by responsible and representative citizen groups in
promoting more responsive broadcast service, we fail to see how a demand for a
contribution of any amount made contingent on the filing vel nom of a petition
to deny contributes to worthwhile negotiations between such groups and
broadcast licensees. Rather, we are of the firm opinion that such demands
are contrary to the concept of good faith negotiations and the public interest.
7. Based upon the foregoing,
it is concluded that the public interest, convenience and necessity will be
served by a grant of WGN of Colorado, Inc.'s above-captioned license renewal
application for Station KWGN-TV for a regular three-year term.
[*417] 8.
Accordingly, IT IS ORDERED, That the informal objections filed by the Colorado
Committee on the mass media and Spanish-Surnamed, Inc., against the license
renewal application for Station KWGN-TV, Denver, Colorado are hereby DISMISSED.
9. IT IS FURTHER ORDERED, That
the application of WGN of Colorado, Inc. for renewal of license for Station
KWGN-TV is hereby GRANTED for a term expiring April 1, 1974.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
In renewing the license of KWGN-TV,
Denver, Colorado, and dismissing the petition to deny, the Federal
Communications Commission today again frustrates minority participation in
broadcasting. In failing to find any significant material questions to
designate for hearing the Commission erects what I believe to be an
unreasonable barrier against a citizen organization attempting to vindicate
fundamental minority rights.
I dissent.
On March 4, 1971, the Commission
granted the Colorado Committee on the Mass Media and the Spanish-Surnamed, Inc.
(the Committee) an extension of time until March 12, 1971, by which to file
petitions to deny renewal application of 46 Colorado broadcast stations.
Colorado Broadcast Stations, 28 F.C.C. 2d 375 (1971). On March 12 and 14, 1971,
the Committee requested a further brief extension of time. The Commission
denied that request, and I dissented. 29 F.C.C. 2d 11 (1971). The
Committee eventually filed its petition to deny on March 16, 1971. Since
the petition was four days tardy the Commission decided to treat the complaint
as an "informal objection." In any event, the Commission went on to
address the merits of the petition. Considerations of justice,
traditional notions of administrative fairness, and the importance of the issues
raised require no less.
The complaint of Denver's Chicano
community raises two fundamental issues -- (1) ascertainment and (2) employment
discrimination -- that I will explore in some detail below.
Before turning to these issues,
however, I find it necessary to address a continuing problem that plagues the
Commission's treatment of community groups. The keystone of the
appropriate Commission attitude has been well stated by then Circuit Judge
Burger, now the Chief Justice of the United States: "The Commission...
[has] an affirmative duty to assist in the development of a meaningful record
which can serve as the basis for the evaluation of the licensee's performance
of his duty to serve the public interest." United Church of Christ v.
F.C.C., 425 F. 2d 543, 548 (1969). (Emphasis supplied.)
Despite this affirmative obligation,
the Commission continues to treat racial complaints with a less than helpful
"please-don't-bother-us" attitude. This is plainly evident in
much of the language the majority uses, i.e., referring to the community
group's "dilatoriness in raising their objections" and in dismissing
their petition as "totally unsupported by the facts." If anyone is
proceeding with "dilatoriness" [*418] in a posture
"totally unsupported by the facts," it is the Federal Communications
Commission -- and not the Colorado Committee on the Mass Media and the
Spanish-Surnamed, Inc.
There is little need to spell this
out in much detail here. We have traveled this wearisome road
before. This Commission twice before renewed the license of a station
intertwined in racial discrimination problems. Twice we were reversed --
in cases that have become classics in administrative law. United Church
of Christ v. F.C.C., 359 F. 2d 994 (D.C. Cir. 1966); United Church of Christ v.
F.C.C., 425 F. 2d 543 (D.C. Cir. 1969).
The U.S. Court of Appeals in the
last of those two celebrated cases said:
[A] "Public Intervenor"
who is seeking no license... is, in this context, more nearly like a
complaining witness who presents evidence to police or a prosecutor whose duty
it is to conduct an affirmative and objective investigation of all the facts
and to pursue his prosecutorial or regulatory function if there is probable
cause to believe a violation has occurred. n1
n1 United Church of Christ v.
F.C.C., 425 F. 2d 543, 546 (1969).
As the Commission should come more and more to recognize,
public interest groups have undertaken to supply on a local level the scrutiny
of renewal applications that the Commission is simply unable to do because of a
lack of time, manpower, or will. cf. In re WSNT, Inc., 27 F.C.C. 2d 993,
1001 (1971) (concurring opinion of Commissioner Johnson). When serious
questions are raised, as they have been here by the Denver Chicano community, I
firmly believe the Commission has an "affirmative duty" to seek the
facts before dismissing the petition out of hand. But this we have failed
to do. Instead of according the petitioners here the favored status of
Public Intervenor "more nearly like a complaining witness" the
Commission comes closer to dismissing them as a public nuisance.
I.
Ascertainment of Community Problems
The Committee first contends KWGN-TV
has not conducted its ascertainment consistent with serving the interests of
the Spanish-surnamed minority community. This Commission has long
recognized that the proper discharge of the licensee's duty to ascertain the
needs and problems of the public it serves is crucial to serving the public
interest, convenience and necessity:
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. n2
n2 Report and Statement of Policy re
Commission En Ban Programming Inquiry, FFC 60-970. 20 P & R Radio Reg.
1901, 1915 (1960).
The importance of proper ascertainment of community problems
is clear, and, therefore, any complaint based on the failure of the licensee to
effectively ascertain community needs raises major public interest questions.
To facilitate effective
ascertainment of community needs the Commission issued a Primer on
Ascertainment of Community Problems by Broadcast Applicants, 27 F.C.C. 2d 650
(1971). The Primer requires, inter alia, that the licensee determine the
composition of the [*419] community in order to discover which
leaders of various community groups must be consulted.
Question: How should ascertainment
of community problems be made?
Answer: By consultations with
leaders of the significant groups in the community to be served and surrounding
areas the applicant has undertaken to serve, and by consultations with members
of the general public. In order to know what significant groups are found
in a particular community, its composition must be determined... The word
"group" as used here is broad enough to include population segments,
such as racial and ethnic groups, and informal groups, as well as groups with
formal organization. n3
n3 Primer on Ascertainment of
Community Problems by Broadcast Applicants, 27 F.C.C. 2d 650, 682 (1971).
In the face
of this clear Commission policy, the Committee alleges the KWGN-TV Advisory
Council, composed of 54 community leaders and established in 1965 to assist the
station in consultation efforts with community leaders, contains only three
Chicanos -- therefore grossly under representing the Spanish community.
This community is Denver's largest minority and number 15.4 percent of the city
of Denver and 9.8 percent of the metropolitan area, for a total of
approximately 120,000. n4 In its
renewal application the licensee says of the Council:
n4 Petition to Deny license of KWGN,
Denver, Colorado for Renewal of Permit to Operate a Television Station, p. 5.
To assist it in its consultation
efforts, KWGN-TV formed the Channel 2 Program Advisory Council in September,
1965. The Council, which is now known as the KWGN Television Advisory
Council, is composed of civic, business, religious, educational, cultural,
agricultural, sports and labor leaders from Metropolitan Denver and surrounding
areas. The Advisory Council was initially created in connection with the
application for the assignment of the Station's license from the previous
owner... A number of highly successful meetings of the Council prior to
the assignment helped enable KWGN-TV to go on the air with a balanced
television programming service, designed to meet the needs and interests of the
community. Since the assignment on March 4, 1966, the personnel of
KWGN-TV have continued to seek program advice and suggestions from members of
the Council through correspondence, telephone conversations and individual
meetings. It is the intention of Station KWGN-TV to continue to seek from
the Advisory Council its advice and suggestions with respect to community needs
and interests as well as the programming of the Station. n5
n5 Renewal Application of WGN of
Colorado, Inc., Exhibit P-1, pp. 1-2.
The licensee counters the
Committee's charge that the Council does not contain enough Chicano leaders to
effectively represent the community not by denying the charge; rather, the
licensee states, by way of avoiding the central issue, that the members of the
Advisory Council are not the only community leaders consulted. The
licensee alleges that it consulted three additional leaders of the Spanish
community, although it is not clear that these individuals represent any group
primarily organized to further the interests of Chicanos. The licensee's
response thus leaves open the question why there is such serious under
representation on the Advisory Council -- as well as the actual role of the
Council in the Denver ascertainment process.
The licensee never comes to grips
with the Committee's charge that the licensee's ascertainment is inadequate:
Placement of two or three Chicano
leaders on an advisory council does not satisfy the requirement of consulting
with community leaders of a significant segment of the community. While
these three gentlemen represent the Chicano to a limited extent, the Commission
should be appraised that the Chicano community [*420] in Denver,
120,000, is not a monolithic community in which the interests of that community
can be represented by such a small number of representatives. n6
n6 Petition to Deny, supra note 3,
at 6.
The policy purpose of the Primer is clear: "Groups with
the greatest problems may be the least organized and have fewest recognized
spokesmen. Therefore, additional efforts may be necessary to identify their
leaders so as to better establish a dialogue with such groups and better
ascertain their problems." n7
(Emphasis supplied.) It is abundantly clear that by simply stating that it
consulted only three additional Chicano individuals who do not appear to
represent significant Chicano groups the licensee has not come close to the
"additional efforts' the law requires for an adequate ascertainment
showing. The Primer is clear in its requirement that the leaders of
significant minority groups must be consulted, and it is no answer to the
Committee's allegations that the licensee's public survey included a 7 percent
Chicano response (which in any event is still inadequate in terms of percentage
of the total community that is Chicano), thereby implying that the Chicano
community -- and its leadership -- was effectively consulted. It is not
at all clear that the licensee has met its responsibility of seeking out
leaders of the Chicano community, either through the dubious arrangements for
the Advisory Council or through other devices outside the Council.
n7 Primer, supra note 2, at 684.
... an applicant may not arbitrarily
avoid personal consultations with significant groups because the groups lack a
highly developed formal structure; we believe that it is appropriate to revise
the answer to indicate that additional efforts may be needed to identify
leaders of less organized groups. This may require... asking members of
the particular group to identify who they consider to be their local
leaders. n8
n8 Id., at 666.
The purpose of this requirement is to ensure that minorities
with important problems of concern to the whole community will be represented
in the public affairs programming efforts of the stations. There is
little indication that the licensee in this instance put forth the necessary
"additional efforts" to identify Denver's Chicano leadership.
If... such a group constitutes a
significant group within the community, and an applicant fails to consult
leaders of that group, his showing will be questioned by the Commission and is
potentially subject to petition or informal objections from others. n9
n9 Id., at 665.
The real issue here is whether the licensee has adequately determined
local problems so that it will be capable of effective public service
programming. In the final analysis, if the licensee has failed to consult
seriously with minority groups (or has gone through sham motions for
window-dressing purposes), it is the licensee's programming itself which will
indicate the true effectiveness of the ascertainment efforts.
Moreover, the performance that
concerns us is not the degree of sophistication used by the applicant in
obtaining data. Rather, it is his proposed programming. n10
n10 Id., at 662.
As might be expected, KWGN-TV has reaped the harvest of a
half-hearted ascertainment effort: Its programming only remotely touches the
"tastes, needs, and desires' of Denver's Chicano community.
No-where [*421] in its renewal application does the licensee
propose any Spanish language programming -- or any other programming -- which
is specifically directed to the problems of its Chicano community. Does
the licensee believe that the problems of this group, the largest minority in
Denver, are nonexistent or do not merit special treatment? If so, there
is significant evidence to the contrary.
The educational system in the United
States, conducted in English, has not reached the substantial number of native
Spanish speakers in this Community. As a result, most of this Community
does not read well in English or in Spanish.
Mexican Americans have an average
educational level of only 7.1 years. This is two years less than Blacks
and five years less than Anglos. Five out of eight Mexican American
children in school today will drop out before the eighth grade.
In today's technological society the
Community's low educational level confines it to the lower rungs of the
economy. The unemployment rate of Mexican Americans is twice that of
Anglos. In Colorado, 8.5% of Anglo families live in overcrowded and/or
dilapidated housing, compared to 35.3% of Spanish-speaking families. n11
n11 Petition to Deny, supra note 3,
at 24.
In a speech on the floor of the United States Senate,
Senator Joseph Montoya of New Mexico recently documented the plight of this
minority. This is not new; but this information has long been absent from
significant public discussion about America's racial problems.
A Mexican American is seven times
more likely to live in substandard housing than an Anglo. The chance that
his baby will be born dead, or will die before his first birthday, is roughly
twice as great.
When talking on jobless statistics
among the Spanish-speaking it is well to remember that 80% of those employed
work at unskilled or semiskilled jobs.
The U.S. government has done more to
help citizens of other lands learn English than it has for non-English-speaking
American citizens in this country.
Meanwhile, selective service boards
across the Southwest contain slightly less than 6% Spanish-speaking American
membership, yet Chicanos account for nearly 20% of all Southwesterns killed in
Vietnam. n12
n12 117 Cong. Rec. S6311-S6314
(Daily Ed. May 6, 1971).
Senator Motoya also points out the significance of the media
and its impact on this group:
Yesterday's shame burns in their
hearts and minds. Today's discrimination and bigotry is a lump in their
collective throats they absolutely refuse to swallow.
America ignores their indignation
and turns her back on their outrage at her peril.
Today it is the norm to pay lip
service to equality while denying it in reality. America's Hispanos are
fully aware of this as well. Their faith in broken promises and paper
programs is waning rapidly.
Here lies the nub of our
tragedy. Anglo America actually believes in the reality of the image of
the Hispano it has itself created. Most Americans even peripherally aware
of such problems do not consider it in any kind of serious light. It will
go away, they feel. They are not really serious, they think. They
will go back to their chili and siestas, many actually believe. And our
media does nothing to disabuse the mass of Americans of either such false
images or false sense of security. Rather they make matters worse.
So the explosion, growing increasingly more severe, actually comes as a
shocking surprise to most Anglo Americans. n13 (Emphasis supplied.)
n13 Id.
This language is reminiscent of the Kerner Commission's findings
that the American media has failed in its obligation to present "A sense
of the problems America faces and the sources of potential solutions." n14 [*422] But most ominous, and similar in
tone to the Kerner Commission's findings, Senator Montoya stated further:
n14 Cf., We need to heed the
warnings of the Kerner Commission:
The absence of Negro faces and
activities from the media has an effect on white audiences as well as
black. If what the white American reads in his newspapers or sees on television
conditions his expectation of what is ordinary and normal in the larger
society, he will neither understand nor accept the black American. By
failing to portray the Negro as a matter of routine and in the context of the
total society, the news media have, we believe contributed to the black-white
schism in this country.
Report of the National Advisory Commission on Civil
Disorders 383 (Bantam Book Ed. 1968).
... realities of Spanish life grow
uglier daily. It is worth taking careful note of such Americans for time
is running out. There has been violence in recent months in several
Spanish-speaking barrios. Such disturbances are indications of what is
coming. We should heed them immediately. n15
n15 Supra, note 12.
Has KNGN-TV presented significant
programming to meet the significant problem of Denver's Chicano community --
i.e., education, discrimination, unemployment, substandard housing? I
think not. KWGN's record here is particularly inadequate. In light of
this evidence and the failure of KWGN-TV to propose any new programming
directed primarily at the Chicano community, I find it dismaying that the
Commission is able to find as "fact":
In its renewal application exhibit
the licensee also enumerated and evaluated the problems ascertained, and
proposed programming which, in its judgment, will attempt to meet these
problems. In sum, this record clearly demonstrates that the licensee has
realistically and successfully endeavored to ascertain the needs, interests and
problems for a representative cross-section of persons in that area. n16
n16 Majority Opinion, p. 3.
However this case might be resolved,
I believe the issues raised by the Denver Chicanos at least merit a full
hearing.
II. Employment Discrimination
The Committee also alleges, as a
second major issue, that KWGN-TV "has not conducted its activities as a
broadcaster in a manner commensurate with the public interest in employment
practices which do not discriminate." n17
By now it should be understood that ensuring equal employment opportunity in
broadcasting is an increasingly important responsibility for all
licensees. Equal Employment Opportunities, 47 CFR § 73.680
(1971). This Committee correctly states that the purpose of the Commission's
Equal Employments rules is to open the door to minority employment
participation in broadcasting. The Committee alleges that only two of
KWGN-TV's 67 full-time employees (something less than three percent) are
Spanish-surnamed. Further, even these two individuals are in jobs
involving minimum responsibility; in any event, both are
"off-camera."
n17 Petition to Deny, supra note 3,
at 18.
The licensee answers by pointing out
that it has six employees from racial minorities, and that the "detailed
showing in the KWGN-TV renewal application on equal employment opportunity
policies and practices clearly demonstrates that the station has pursued an
affirmative policy of according equal employment opportunities." n18 This neatly avoids the Committee's allegation that
Chicanos are seriously [*423] underrepresented on the station's
staff in relation to the large Chicano population (15.4 percent in Denver, 9.8
percent in the metropolitan area) of the service area. The obvious
question: If KWGN-TV has such an "affirmative policy of according equal
opportunities," why are Chicanos conspicuously underrepresented in all
phases of employment, and why are there no Chicanos "on-camera"?
n18 Opposition to "Petition to
Deny" for Renewal of license of Station KWGN-TV, Denver, Colorado, p. 4.
The Commission requires:
Each station shall 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. n19
n19 47 C.F.R. § 73.680.
The rules clearly require equal employment opportunity at
all levels of station operations. A station's equal employment program,
no matter how elaborate it may be on paper, cannot count for much unless and
until hiring of racial minorities bears some reasonable relationship to the
minorities' compoisiton of the area's population. In view of this KWGN-TV
has not come close to rebutting the charge that it has failed -- and failed
dismally -- to conduct its broadcasting activities in line with the spirit and
intent of the Commission's employment discrimination rules.
A more detailed examination of the
station's employment policies (as stated in its renewal application) poses
serious questions about the effectiveness of the station's efforts.
First, the station's program merely "parrots" the Commission's
suggested steps for affirmative action. n20 This suggests that KWGN-TV has not taken these rules seriously, but has
merely adopted word for word the Commission's suggestions without effective
implementation. Nonetheless, the Commission accepts without question the
licensee's assertions as findings of fact. In his affidavit, Richard E.
Jungers, the licensee, states:
n20 18 F.C.C. 2d 249, 251.
... the station is taking further
steps toward the establishment of a program in cooperation with the
Metropolitan State College of Denver for the training of minority
students. n21
n21 Affidavit of Richard E. Jungers,
pp. 2-3.
The licensee states elsewhere:
In addition to being aware of its
responsibilities to provide equal employment opportunities for members of
minority groups, Station KWGN-TV also has taken steps to help provide education
and training for those members of minority groups interested in gaining
employment within the broadcasting industry. n22
n22 Supra, note 5. Exhibit
E-2.
Yet neither in the affidavit or the application is this
program, still in the proposal stage, apparently tied to increasing minority
employment at KWGN-TV itself. If appears to be offered rather as a
proposal to help increase minority participation in broadcasting generally,
rather than primarily directed toward the large Chicano minority in
Denver. Nevertheless, the licensee emphasizes the importance of this
program as a part of its equal employment practices -- even though it is by and
large beside the point.
Although the Committee has made no
allegation of a specific incident of discrimination, there is little doubt that
Denver Chicanos are not represented in the station's employment program in significant
[*424] numbers. I am deeply disturbed with the Commission's failure
to even recognize (let alone investigate) the Committee's complaints.
In conclusion, it is my belief that
the Committee has met its necessary procedural burden of a substantial showing
in raising material questions of fact which should be investigated
further. The major importance of the issue presented, the failure to
ascertain community needs, and serious charges of racial discrimination, lessen
the "showing" necessary to trigger the hearing process.
"Procedural requirements depend in part on the importance of the issues
before the agency." n23 I am convinced that the Committee
has met the required burden and that this Commission should first have its
staff investigate the charges further, and, absent a clear showing that the
licensee is proceeding to remedy the deficiencies, a full evidentiary hearing
is clearly in order.
n23 Marine Space Enclosures Inc. v.
FMC, 137 U.S. App. D.C. 9, 18 (Note 22) (1969).