In Re
Complaints by PROF. DONALD W. HENDON, UNIVERSITY OF NEVADA Concerning
Channel 13
of Las Vegas, Inc., station KSHO-TV
FEDERAL COMMUNICATIONS COMMISSION
33 F.C.C.2d 789
RELEASE-NUMBER: FCC 72-137
FEBRUARY 16, 1972
OPINION:
[*789] GENTLEMEN: This
refers to complaints against you which were considered by the Commission before
its grant of your applications for renewal of the license of Station KSHO-TV
and for transfer of negative control of the licensee.
Complaints were received from
Professor Donald W. Hendon of the University of Nevada at Las Vegas alleging
(1) that you were not carrying ABC network programs in their entirety, and (2)
that the licensee attempted to bring about termination of Professor Hendon's employment
by the University because he had filed the first complaint with the Commission.
The Commission conducted a filed
investigation into both of Professor Hendon's complaints.
Information obtained regarding
failure to carry network programs in their entirety is summarized in a Notice
of Apparent Liability issued to you on January 26, 1972 for violation of
Section 317 of the Communications Act of 1934, as amended, and Sections 73.654
and 73.1205 of the Commission's Rules.
The investigation into the allegation
that you sought to bring about termination of Professor Hendon's employment
included interviews with Mr. Hendon, the President and other officials of the
University, and the Vice President and General Manager of the licensee. A
copy of a letter from a major stockholder of the licensee to the University was
obtained. The writer of the letter submitted an affidavit regarding his
alleged intentions in writing the letter and the circumstances which he states
prompted the writing of it.
Careful consideration of all of the
information thus obtained resulted in our determination that the evidence does
not justify designation of your applications for hearing.
We wish to remind you and all other
licensees, however, that intimidation or harassment of persons for filing
complaints with the Commission is contrary to the public interest in that it
tends to discourage expression of public opinion on the service being rendered
by broadcast stations. Appropriate sanctions will be imposed whenever
evidence is available to establish that a licensee engages in such practices.
[*790] Commissioners
Robert E. Lee and H. Rex Lee absent; Commissioner
Johnson dissenting and issuing a statement.
BY DIRECTION
OF THE COMMISSION, BEN F. WAPLE, Secretary.
JOHNSON
DISSENTBY:
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
A private citizen investigates
programming practices of a television station and presents evidence to the FCC
sufficient to induce a rare FCC filed investigation and resulting maximum
$10,000 fine against the station. That citizen also charges that the
station and its stockholders subsequently pressured the citizen's employer to
fire him; there is strong evidence to substantiate the charges; the citizen
loses his job, and the Commission concludes that a renewal application should
be granted without even a hearing on this issue.
I dissent.
BACKGROUND OF THE CASE
Professor Donald W. Hendon, formerly
of the University of Nevada at Las Vegas, and now at Columbus College,
Columbus, Georgia, undertook a survey of the advertising practices of TV
stations in Las Vegas. He concluded that Las Vegas stations, including
KSHO-TV, Channel 13, were "clipping" the ends of network programs in
order to add additional local commercials. The Commission, after a field
investigation, has today proposed a $10,000 fine against KSHO-TV, and in
addition sent a pre-hearing letter to KORK-TV asking it to respond to charges
of clipping and bringing pressure at the University of Nevada in an effort to
have Professor Hendon fired or forced to discontinue his activities in
monitoring the performance of KORK-TV.
In my view the Commission's action
in proposing a $10,000 fine for clipping network programs is a totally
inadequate penalty for KSHO-TV's activity. The station has apparently
carried out a systematic fraud on the ABC network and its viewers, affirming
that programming had been carried when in fact it had not, and dropping parts
of programs its viewers were entitled to see, including programming required to
be be broadcast by FCC rules (sponsorship information). I believe
sufficient material has been alleged by Professor Hendon, and collected by our
filed investigation, to require a hearing on the extent of clipping, and the
true state of affairs with respect to Professor Hendon's other
allegations. I do not understand how the Commission can find the public
interest to be served by this renewal and transfer until the issues have been
explored in hearing.
It is no argument to say that the
practice of clipping is widespread, or that the Commission has not explicitly
ruled on the question. From my mail I know that many viewers are
convinced they are being deprived of programming because stations overrun
programming with their own commercials. Our own staff indicates the
practice may be widespread and that it is wrong. I believe a renewal
hearing would be required even if clipping were the only issue, but it is not.
[*791]
CHARGES OF HARRASSMENT AND
INTIMIDATION
The University of Nevada at Las
Vegas was hoping to secure some surplus broadcast equipment from KSHO-TV at the
same time KSHO-TV learned of Professor Hendon's investigation and
charges. One of KSHO-TV's senior officers and major shareholders wrote
the University complaining about Professor Hendon's work and indicating that
the surplus equipment he controlled would not be available to the University
because the University had permitted Professor Hendon's inquiry. As for
the surplus KSHO-TV equipment, not then available because of the station's tax
loss status, its future availability depended on what the University regents
did about Professor Hendon. KSHO-TV also told the University Professor
Hendon had solicited a research contract with the station, inferring that
Professor Hendon's charges were in retaliation for his failure to get station
financing. Professor Hendon has flatly denied the allegation as a lie.
Professor Hendon was told by the Chairman of his department that the University
administration would be unhappy about the complaints from KSHO-TV, and that in
view of the circumstances he should look for a new job. Similar charges
of pressure by another Las Vegas station have resulted in inquiry by the
Commission in a pre-hearing letter adopted today. I cannot understand why
in one instance of alleged intimidation, the Commission sends a pre-hearing
letter and in another -- involving clipping as well -- the charges are
whitewashed.
CONCLUSION
The basic problem in this case is
that a contract for the transfer of negative control of the station runs out
February 1, 1972, and unless the Commission gives complete approval, the
contract will be terminated. We have rushed the investigation, we have
rushed the preparation of materials for the Commission, and now we rush through
the approval. For the other station in the market against whom
intimidation charges are made, we have more time, and also additional evidence
involving other commonly owned stations. I would set KSHO-TV's renewal
application for hearing on both the clipping and harassment issues, where the
truth of the disputed facts could be tested under oath and cross-examination,
and I would hold the proposed transfer in abeyance.
The rise of private attorneys
general in broadcast regulation has been an arduous one. The Commission,
with its meager resources, relies almost entirely on private citizens to bring
matters to its attention. Rarely is a Commission proceeding against a
licensee begun unless evidence is first presented from outside by interested
citizens.
In addition, private citizens face
substantial barriers. A citizen is expected to make a complete
evidentiary case based on his own investigation. Often he faces a hostile
Commission. Delays eat into his limited resources. Many of his most
important victories have been won in court over vigorous Commission
opposition. But he is having an increasing impact -- in renewal, transfer,
and revocation proceedings, in agreements and negotiations with stations, and
in rulemaking/policy making before the Commission. But now he faces a new
barrier. If he dares to complain about a station, he may lose his
livelihood even though the Commission agrees his charges are correct. The
Commission will do nothing to protect him. The Commission's record of
hostility toward private attorneys general helping it to do its Congressionally
mandated job is intact.
I dissent.