LEXSEE 37 F

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In re Applications of CENTRAL STATES BROADCASTING, INC. For Renewal of Licenses of Stations KOIL and KOIL-FM, Omaha, Nebr.; GRACE BIBLE INSTITUTE, INC. For Renewal of License of Station KGBI-FM, Omaha, Nebr.; HERALD CORP. For Renewal of License of Station KETV-TV, Omaha, Nebr.; KFAB BROADCASTING Co. For Renewal of Licenses of Stations KFAB and KFAB-FM, Omaha, Nebr.; MAY BROADCASTING CO. For Renewal of License of Station KMTV-TV, Omaha, Nebr.; MEREDITH CORP. For Renewal of Licenses of Stations WOW, KFMX-FM, and WOW-TV, Omaha, Nebr.; NEBRASKA EDUCATIONAL TELEVISION COMMISSION For Renewal of License of Station KYNE-TV, Omaha, Nebr.; PAXTON RADIO, INC. For Renewal of License of Station KLNG, Omaha, Nebr.; PIER SAN OF NEBRASKA, INC. For Renewal of License of Station KOOO, Omaha, Nebr.

File Nos. BR-516, BRH-992; File No. BRH-1885; File No. BRCT-401; File Nos. BR-681, BRH-1152; File No. BRCT-67; File Nos. BR-686, BRH-1210, BRCT-39; File No. BRET-104; File No. BR-1185; File No. BR-3530

FEDERAL COMMUNICATIONS COMMISSION

37 F.C.C.2d 500

RELEASE-NUMBER: FCC 72-866

October 6, 1972 Released

Adopted September 27, 1972

JUDGES:

BY THE COMMISSION: COMMISSIONER HOOKS DISSENTING AND ISSUING A STATEMENT IN WHICH COMMISSIONER JOHNSOM JOINS.

OPINION:

[*500] 1. The Commission has before it for consideration: (a) the above-captioned applications for renewal of the licenses of stations KETV-TV, KFAB-AM-FM, KGBI-FM, KLNG, KMTV-TV, KOIL-AM-FM, KOOO, KYNE-TV, WOW-AM, KFMX-FM, and WOW-TV, Omaha, Nebraska; (b) a petition to deny these applications, filed on May 3, 1971, by the Black Identity Education Association (hereinafter [*501] BIEA), of Omaha, Nebraska; (c) pleadings in opposition and reply thereto. n1

n1 Central States Broadcasting Co., licensee of KOIL-AM-FM, is presently involved in a hearing and, therefore, has not filed opposition pleadings in this matter.

BACKGROUND

2. It is first noted, by way of background, that BIEA filed a petition to deny the above renewal applications on March 22, 1971. In this petition broad allegations were directed against each of the stations charging discrimination in employment practices and failure to program for the black community. With few exceptions the allegations against each station were identical in both form and wording. The petitioner failed to give any extrinsic evidence indicating racial discrimination on the part of any of the Omaha stations. n2 The allegations concerning programming were deficient in that they were framed as broad conclusory statements, unsupported by factual data. Thus, on April 9, 1971, the Commission directed a letter to Mrs. Aleane Carter, President of BIEA, setting forth the deficiencies found in the petition. This communication set out in detail the factual information, required in a formal petition to deny. Pertinent sections of the Commission's rules regarding petitions to deny were also forwarded to Mrs. Carter. Thereafter, on May 3, 1971, BIEA filed the pleadings now under consideration.

n2 The only specific allegation in regard to discriminatory employment practices concerned Juanito Rodriquez, a black, who, the petitioners state, applied for a position at each of the stations under consideration here, but was not hired by any of them. The pleadings did not specify the dates of Mr. Rodriquez's applications, and gave no further details to support this allegation.

STANDING

3. As a threshold matter, some question is raised regarding the petitioner's standing as a party in interest. The pleadings do not set out the composition of the association, its purpose or any organizational details, other than a general statement that it is composed of members of minorities residing in Omaha. All Commission contact with BIEA and, with a few exceptions, apparently all contact on the part of the licensees with BIEA, has been through Mrs. Carter, the group's president. The question of standing is raised explicitly by Herald Corp., licensee of station KETV-TV. According to the licensee, the petitioner has not shown that it acts as the spokesman for "any representative groups having significant roots in the listening community," citing Office of Communications of United Church of Christ v. FCC, 359 F. 2d 994 (D.C. Cir. 1966). Petitioner's standing is also questioned by the licensee of station KLNG. The licensee points out that the petitioner has given no specific information concerning the make-up of the group represented and, therefore, it is impossible to determine whether the petitioner qualifies as a party in interest.

4. In reply to KETV-TV, petitioner states that the group is made up of black educators and ministers. Petitioner, however, for security purposes, refuses to give the names of members or the number of people in the group. Petitioner does not elaborate as to why it feels these security measures are necessary.

[*502] 5. It has long been held that members of the public in the community of license have standing to contest a licensee's renewal application. Office of Communications of United Church of Christ v. FCC, 359 F. 2d 994 (D.C. Cir. 1966). More recent Commission rulings aimed at this question make clear that standing will not be denied if the petitioner represents members of the listening and viewing audience of the licensee. See Hale v. FCC, 425 F. 2d 556 (D.C. Cir. 1970). Although more detail on the composition of the group is desirable, presumably Mrs. Carter and other members of BIEA are residents of Omaha, Nebraska, and qualify as members of the listening and viewing audience of the stations in question. We find, therefore, the BIEA has standing as a party in interest.

STATEMENT OF FACTS

6. According to the 1970 U.S. Census, Omaha, Nebraska, the city of license, has 34,431 black residents. This represents 9.9 per cent of the total population of Omaha. Less than one per cent of the population is made up of various other minority groups. Douglas County, in which Omaha is located, claims 8.5 per cent of its population as black with other minority groups making up 0.9 per cent.

7. Petitioner makes identical allegations against each licensee. Briefly stated, petitioner charges that the stations in question have participated in discriminatory hiring practices by employing few members of minority groups. BIEA also raises the question of programming, stating that each of the stations "reserve little or no space for locally-produced programming geared to meeting the needs and interests of the minority group peoples in contrast to the time reserved for local white programming." Although the petitioner makes the same general allegations against each licensee, the pleadings contain a myriad of elements relating to the various stations. For the purpose of clarity, a discussion of each allegation as it relates to the individual licensee is set out in detail below.

8. KGBI-FM. Petitioner first alleges that Grace Bible Institute, Inc., Licensee of KGBI-FM, practices a policy of discriminatory hiring. This is instantiated, BIEA states, by the fact that KGBI-FM does not now have, and has never had, any blacks employed at the station. Petitioner also avers that the station has failed to program with an eye directed to the needs of minority groups. To substantiate this claim, petitioner alleges that KGBI-FM has only one album in its music library performed by a black and that the station devotes no air time to regular minority programming.

9. In opposition, the licensee denies that it has discriminated against blacks in its employment practices. Moreover, the licensee notes that KGBI-FM has only three full-time employees and, hence, is not required to file an equal employment opportunity program in accordance with the guidelines set forth in Section VI of the Commission's application form. In regard to the allegations concerning programming, the licensee states that its past programming has included blacks, citing as an example its weekly 15-minute public affairs program "Chat Time," which has, on occasion, featured blacks. The licensee also states that, beginning July 4, 1971, it will be broadcasting a weekly one-half [*503] hour program featuring a black evangelist. Station KGBI-FM also denies the allegation that it has only one album by a black artist stating: "Our collection contains a few more than that, and they are used regularly." The licensee further states that musical selections are chosen not on the basis of the race of the performer, but on the basis of conformance to the station's format of sacred and classical music.

In reply, petitioner reaffirms its allegations regarding KGBI-FM's discriminatory hiring practices. The petitioner states, in response to the licensee's statement that it has never had a black applicant, that Juanito Rodriquez, a black minister, has applied for a position at the station many times. However, no specific dates or any other details of Mr. Rodriquez' experiences with the station are set out. The reply then goes on to admonish the licensee severely for misrepresenting itself when it, as a church-oriented station, should serve as an example for all other Omaha stations. Petitioner also reaffirms its allegation regarding inadequate black programming, stating that the examples given by the licensee represent only "token" efforts. Concerning its allegation that station KGBI-FM has only one album by a black artist in its collection, petitioner states that this was determined after speaking with a member of the station's staff and by a search through the music library by BIEA members. Petitioner, however, readily acknowledges the possibility that the station may have obtained other albums by blacks subsequent to their search.

10. KFAB-AM-FM. To substantiate its allegations in regard to discriminatory employment practices, petitioner notes that stations KFAB-AM and FM, at the time the present pleading was filed, had an employment force of 33 people with two of the staff members being black. As an exhibit to the petition, BIEA attached a portion of Section VI of the licensee's renewal application, which describes the station's efforts to recruit minorities. BIEA notes that the licensee states in Section VI that the station experiences a low employee turnover, and: "When vacancies have occurred in the past, we have contacted schools and other employment sources. Minority people with the necessary qualifications have not been available." Following this statement is the handwritten parenthetical comment by the petitioner, "This is a lie." The segment of the petition to deny dealing with programming n3 consists of portions of Section IV of the licensee's renewal application and a discussion by the petitioner of a number of songs written and recorded by blacks which apparently have not been played on KFAB. The caption to this discussion indicates that it applies with equal force to KOIL-AM-FM, KLNG, WOW, KOOO, and KFAB. The petitioner describes in detail a number of songs which hold special messages for blacks and include the lyrics from one such song.

n3 Although the petition to deny is directed against both KFAB and KFAB-FM, it does not specifically mention the KFAB-FM program service.

11. In opposition, the licensee denies the allegations made against it by BIEA. The licensee states that the percentage of blacks on the station's staff (seven per cent) exceeds the percentage of blacks in its service area (four per cent), which includes not only the metropolitan Omaha area, but much of eastern Nebraska and western Iowa. The licensee also states that, because of the difficulty it has experienced [*504] in recruiting qualified minority employees, it has initiated a training program specifically for minorities which has produced one black newsman who is now employed at the station. The licensee also states that it is presently working to train another minority member. According to the licensee, station KFAB is also participating in Operation DRUM to prepare minority people for jobs in the broadcasting industry. With respect to the petitioner's allegations regarding the station's program service, the licensee notes that one-quarter of its broadcast service is devoted to news, weather, public affairs, agriculture and other related programming, exclusive of entertainment and sports. The licensee claims that this type of programming is aimed at minority needs as well as those of the white community. KFAB's entertainment programming, according to the licensee, is made up of "middle-of-the-road" music, geared for the widest general appeal. The licensee also notes that two Omaha stations, KOWH and KOWH-FM, program exclusively to meet the needs and interests of black listeners.

12. In reply, petitioner states that the licensee's program to train a minority person for a place on the KFAB staff represents only "token" efforts on the part of the station. The petitioner again repeats its allegation that the type of music played on KFAB is devoid of any black-composed or performed works. Incorporated with petitioner's reply is a letter from Walt Kavanagh, News and Public Affairs Manager of KFAB, to the Rev. James D. Hendrickson of the Omaha Human Relations Board. The letter is dated December 22, 1970, and deals with the station's efforts to serve the minority community. Attached to the letter are comments by BIEA criticizing the licensee's efforts described in the letter. For example, the petitioner alleges that the licensee has not actively searched out qualified blacks by sending recrutiers into black neighborhoods or to places in the community where blacks normally congregate. Petitioner also asserts that the licensee has not made any effort to search out and hire qualified blacks from other areas of the country. BIEA again refers to Juanito Rodriquez, who apparently applied for a position with the station but was not hired. Finally, the Kavanagh letter refers to a weekly series entitled "Minority America" broadcast on KFAB. The petitioner is critical of this program, stating that it is broadcast at an early hour, 8:05 on Sundays, and runs only 25 minutes.

13. KOOO. The portion of the petition dealing with station KOOO again concerns the station's employment practices and minority programming. The pleadings, dealing with discriminatory hiring practices, consist of an assertion that the station's is made up of eight persons, one being an American Indian. To substantiate its allegation regarding programming, petitioner encloses a copy of portions of the licensee's renewal application. Appended to a description of KOOO's program "The Polish Hour" are the handwritten comments: "This is a need for soul music for black people," and "People of African descent, commonly called 'nEgroes' have no such recognition for their needs and interests to be met along this same line." The petition also contains a page describing two black religious series which had been carried by the station in the past with the handwritten note that these programs were paid for by minorities. The petitioner concludes with the parenthetical statement that, on April 22, 1971, Mrs. Carter went [*505] to the station to review the license files, but was told that the station manager was out and that the secretary did not know where the files were kept.

14. In opposition, the licensee primarily questions the quality of the pleadings, stating that the petitioner's allegations are cast in terms too broad and general to raise any substantial and material questions of fact. The licensee points out that the petitioner's own pleadings show that the station has minority staff members. The licensee also points out that KOOO has implemented an equal employment policy. The licensee finds it significant that BIEA fails to mention the black-oriented KOWH-AM-FM stations in its allegations regarding insufficient black programming. The licensee claims that the existence of these stations in Omaha negates any claim by petitioner concerning the absence of black programming in the community. The licensee also includes a report on the incident referred to by the petitioner concerning the unavailability of the station's license file for public inspection. The licensee states that Mrs. Carter came to the station over the noon hour, that the general manager was away from the office, and that his secretary did not know what portion of the file was open to the public. The licensee states further that, upon returning to the station and learning of this incident, the general manager contacted Mrs. Carter and sent her copies of the portion of the renewal file which she had been seeking. The licensee also states that, subsequent to this incident, pertinent members of the staff have been instructed as to the location of the public file.

15. In reply, BIEA reiterates its original allegations, stating that the KOOO staff has only "token" minority representation. Petitioner states that the licensee's reference to KOWH and KOWH-FM is not germane, since blacks should be able to find programs suited to their tastes on any station. BIEA expands this point by saving that many blacks do not listen to KOWH and suggest the possibility that many blacks may own faulty or worn-out radios that cannot receive all stations clearly. If KOWH is one of these stations which some blacks cannot receive, then, the petitioner alleges, these people must now be satisfied with the white programming of KOOO and the other stations in Omaha.

16. KLNG. The thrust of the petitioner's complaint against KLNG as it relates to discriminatory employment practices, is that the station employs only three blacks out of a total employment force of 21 people. As exhibits to its pleadings, BIEA submits several parts of the licensee's renewal application, namely: Exhibit 11 of Section IV-A, which consists of a numerical compilation of the employees by job description; Exhibit 14 to section VI, which describes the efforts made by KLNG to recruit qualified blacks; and Exhibit 8 of Section IV-A, captioned "Typical Programs Serving Public Needs." Petitioner further alleges that the music played on KLNG is devoid of works composed or performed by black artists. Finally, BIEA claims that KLNG broadcasts a weekly program by the Faith Temple Church, a black church in Omaha; that the station charges $100.00 for this broadcast; that this program should be considered a public affairs program, and that the church should not be made to pay for the broadcast.

[*506] 17. In response to these allegations, the licensee, Paxton Radio, Inc., states that petitioner has failed to establish any facts indicating that the operation of KLNG has been inconsistent with the public interest. The licensee states that, since acquiring control of KLNG on April 1, 1970, it has hired three blacks, placing two in executive positions. The licensee also notes the program format of KLNG consists of news and information programming from 6 a.m. to 8 p.m., and music during the evening hours. The licensee asserts that its program service is not directed to any particular group but, rather, is designed to appeal to the listening audience in general. The licensee states that it keeps no list of music played segregating performers by race, and that the station does not follow a practice of discrimination directed toward black artists. The licensee concedes that it does broadcast the services of the black Faith Temple Church and that it charges $100.00 for this broadcast. The licensee asserts, however, that this does not indicate discrimination in any way.

18. In reply, the petitioner reemphasizes the station's alleged lack of musical programming for blacks by claiming "The white man continues to insist that 'his' music is the only 'good' music around * * *" and that "By listening to their station, BIEA can state that any black music is played [solely] on a 'token' basis." With regard to the services broadcast from Faith Temple Church, the petitioner suggests that the station, in charging the church $100.00 per week, is attempting to force the program off the air or is trying "to plainly 'take advantage' of their zeal and determination to broadcast a weekly religious program." Finally, petitioner includes an article from the April 22, 1971, issue of Jet Magazine discussing the dissatisfaction of blacks with the way the broadcasting industry relates to them in its programming.

19. WOW-AM, KFMX-FM and WOW-TV. BIEA alleges that the licensee of WOW-AM and TV and KFMX-FM n4 is in violation of the Commission's rules with regard to equal employment practices, in that the stations have an employment force of 109 people, out of which only nine employees are black. Of these nine black employees, five are employed on a full-time basis, with the remaining four people serving as part-time employees. As part of its petition, the petitioner also includes a letter written on April 13, 1971, by the licensee to the Commission in response to the earlier petition to deny filed by BIEA. Next to a statement by the licensee stating that the WOW stations became the first broadcasters in the Omaha area to hire a black in the early 1960's is the handwritten interjection, "tokenism." Petitioner also alleges that the licensee has failed to program to meet the needs and interests of the minority community. Petitioner claims that only one hour a month is devoted to black programming. To substantiate this allegation, petitioner submits portions of Section IV-B of the WOW-TV renewal application which, contains descriptions of past programs. Written next to a description of a program entitled "Omaha, Can We Do?" is the comment, "Only black program;" next to the program "Fam Family of the Week," is the comment, "all white;" next to the program "Easter Services" is the comment, "white only;" next to the program "Romper Room" is the comment, "All white teachers, for [*507] white kids participations only in past, few black now;" and, finally, next to the program "Martha's Kitchen" is the comment, "white folks cooking -- no soul food or low income recipes or few."

n4 Subsequent to the filing of the petition to deny, WOW-FM changed its call letters to KFMX-FM.

19. The licensee, Meredith Corp., denies each allegation raised by the petitioner. In essence, the licensee challenges the quality of the evidence used to support the BIEA allegations, emphasizing that that portion of the petition which relates to the WOW stations is, for the most part, pages from the licensee's renewal application with handwritten statements in the margins.

20. In its reply to the licensee's opposition pleading, the petitioner again maintains that the licensee has mae only "token" efforts in both employment and program service related to blacks. To further substantiate the allegation that the WOW stations discriminate in employment practices, the petitioner refers to a situation involving Mrs. Katherine Archie who was apparently, until recently, an employee of KFMX-FM. According to the petitioner, "She was first hired to pad the FCC report on minority employment. Secondly, she was given wrong instructions as how to operate on her job and was accused by the 'boss' as doing her job 'wrong.' When she stood up for her rights she was told that her services henceforth were to be terminated." The petitioner has attached Mrs. Archie's letter of resignation in which she accuses the station of discrimination in its treatment of her. Meredith Corp., in response to petitioner's allegation regarding the situation involving Mrs. Archie, avers that it made every effort to adequately train her. Licensee concedes that upon one occasion she was given incorrect instructions, but was informed shortly thereafter of the correct procedure. In conclusion, licensee states that the only reason Mrs. Archie was asked to resign was that she was unable to adequately perform the duties assigned to her.

21. KMTV. Petitioner charges the licensee, May Broadcasting Company, with discriminatory employment practices and cites the company's employment statistics to substantiate this point. According to the BIEA, the station has an employment force of 95 people with three full-time and eight black part-time employees. The petitioner submits a portion of the licensee's FCC Form 395 to verify these statistics. Petitioner further charges that four of the part-time black employees are used solely on KMTV's monthly 30-minute program, "Black on Black," dealing with problems in the black community. The petitioner also alleges that the licensee has failed to meet the needs of Omaha's minority community, in that only one-half hour a month is devoted to regular minority programming. Petitioner states that other programs, specifically the program "Hiring Line" which is hosted by a black, are only of general interest to the black community.

22. With regard to the petitioner's allegations concerning discriminatory employment practices, licensee points out that the employment statistics cited do not support this conclusion. The licensee states that blacks comprise 11 per cent of the KMTV staffers, while blacks make up less than four per cent of the population within the station's market area, as defined by the American Research Bureau. The licensee also points to its efforts to train minority members for broadcast employment, which are outlined in detail in its renewal application. These efforts include participation in Operation DRUM, working with the [*508] Omaha Junior Achievement program to interest high school students in the industry and the initiation of a training program at Boys' Town, Nebraska, specifically aimed at minority students. Addressing itself to the petitioner's allegation of inadequate program service for minorities, the licensee again emphasizes that blacks comprise a tiny portion of the station's service area. The licensee defends the program "Hiring Line," which is criticized in the petition as not specifically pertaining to blacks. According to the licensee, unemployment is a problem in Omaha, especially in the black community, and "Hiring Line" is designed to deal with the unemployment problem, both as it affects blacks and the rest of the Omaha citizenry. In reply to the licensee's opposition, the petitioner merely reiterates the allegations made in the previous pleadings.

23. KETV-TV. The petitioner alleges that the employment practices of KETV-TV are discriminatory, and to substantiate this allegation points out that the station employs 69 people, out of which seven full-time employees and two part-time employees are black. As a part of its petition, petitioner includes Exhibit 17 of Section IV-B of the licensee's renewal application, which gives a numerical break-down of the employees by job description. Also included is Exhibit 17 to Section IV-B, which sets out the management of Station KETV-TV. The petitioner then goes on to allege that the licensee has ignored the needs of the minority community in that only one and one-half hours a week is devoted to regularly scheduled minority programming. Included with the pleadings are descriptions of a number of programs broadcast on KETV-TV, some of which dealt with minority problems and some of which did not. The petitioner is especially critical of the KETV-TV program, "Tell Me, Mr. Preacher," which is hosted by a white minister. According to the BIEA, this program is valueless to blacks, because a white minister cannot relate to the problems facing a black person. The petitioner further objects to the weekly broadcast of the services at Kountze Lutheran Church. According to the petitioner, very few of the minority people in Omaha are Lutheran, and the music sung by the church choir is not "soul music." Nor does the petitioner feel that the American Indian is adequately served by the programming of KETV-TV. The petitioner states that the station directs none of its programming to the problems of the Indian, except for an occasional news item. The petitioner further alleges that the station manifested its disinterest in serving the black community by refusing to hire Mrs. Carter as the hostess of a program now being aired on KETV-TV. The pleadings indicate that Mrs. Carter submitted a program suggestion to the station. This program was to consist of an hour of gospel music performed by the choirs of various black churches in the area and would have featured Mrs. Carter as the hostess. The pleadings state that, although KETV-TV used this suggested format, the station changed the name of the show and utilized a person already in the employ of the station as the host. According to Mrs. Carter, "they took my idea, my show, gave it another name * * *. They did not apparently want a black person to become a warm television personality." The petitioner also criticizes the quality of the program, stating that the station has refused to provide an organ to accompany the choirs. Finally, the petitioner refers to Operation DRUM, claiming that this program was organized [*509] quite recently and "just in time to report that the stations are trying to give the impression to the FCC that they had all along been interested in helping the young minority members."

24. The licensee, Herald Corp., denies that it has discriminated in its hiring practices and that it has failed to program for Omaha's blacks. The licensee finds it significant that the petitioner has included some parts of the licensee's renewal application, but has excluded other relevant portions; e.g., licensee's Section VI submission. The licensee also states that the petitioner has not given a complete picture of KETV-TV's efforts in the area of minority programming. The licensee states that the program descriptions included by the petitioner does not include the station's weekly series entitled "Rap About It," which deals directly with the problems currently facing minority groups in the city. The pleading then goes on to list other programs discussed in the renewal application which the licensee states are of direct interest to minority groups. In discussing the allegation regarding lack of Indian programming, the licensee points out that the petition to deny contains a description of a program carried by the station on the problems of the Omaha Indians. To further evidence its awareness of minority needs, the licensee states that a portion of the KETV-TV evening newscast is focused on minority issues. Turning to the petitioner's criticisms of the "Tell Me, Mr. Preacher" program and the Kountze Lutheran Church broadcasts, the licensee states that a number of ministers representing minority congregations have appeared on various programs, notably the "Filled With Soul" series. The licensee contests the validity of the BIEA allegation that the station appropriated Mrs. Carter's program idea. The program in question is entitled "Filled With Soul" and the licensee asserts that it is patterned after similar programs in other parts of the country. According to the licensee, Mrs. Carter has been involved in approximately eight of these programs. Licensee also states that a member of the station's staff, rather than Mrs. Carter, was made host of this show because of budgetary considerations and not out any desire an the licensee's part to restrain Mrs. Carter's television career. Finally, the licensee states that offers have been extended to the petitioners to discuss their grievances, but that these offers have not been accepted.

25. In their reply, the petitioner simply repeats its original allegations, and contends that the licensee has not rebutted any of the charges made against it. The petitioner also states that KETV-TV's two black newsmen have now left the station and, therefore, the station has ceased its daily presentation of minority news. According to the petitioner, the director of a program to train minorities in the broadcasting industry, located in New York City, contacted KETV-TV with information on qualified trainees, but the station refused to act on this information.

26. KYNE-TV. Station KYNE-TV is a non-commercial, educational television station and is licensed to the Nebraska Educational Television Commission (hereinafter NETC). The petitioner charges the licensee with discriminatory employment practices, and goes on to point out that the station employs one black teacher on a full-time basis and one on a part-time basis. This is the only evidence given to support the petitioner's contention. BIEA further alleges that the class schedule [*510] presented by the station is devoid of programs with which black students can relate. To substantiate this allegation, the petitioner cites as an example the fifth grade level social studies program entitled "Americans All." The petitioner claims that the lesson materials for this 31-program series show that only one program dealt with a black man. This program featured Ralph Bunche. Petitioner concludes by submitting the 1970-71 program schedule to show that none of the programming on station KYNE-TV is relevant to black students.

27. The licensee denies that it engages in discriminatory employment practices stating that, at the present time, Station KYNE-TV has one black and one person of another minority group in its employ. The licensee also states that it has been working with Operation DRUM to train minority people. With regard to the BIEA allegations concerning inadequate programming, the licensee sets out in detail the processes through which programming is determined. The Metropolitan Omaha Educational Broadcasting Association, Inc. (MOEBA) Program Council is the programming arm of NETC, the licensee. The Department of Instruction of the Omaha School District works with MOEBA in planning the curriculum. The assistant director of curriculum of the Department of Instruction is a black as are others of the staff involved in the curriculum planning. The opposition pleadings describe in detail programs aimed to meet the needs and interests of minority students. Included in the programs cited is an eight lesson series entitled "The History of the Negro People," a ten lesson series on black literature entitled "Dark Reflections," and four lessons on black music in the "Living with Music" series. The licensee also describes a series of programs entitled "Cultural Understandings," which includes 16 lessons dealing with black, Indian, Oriental and Spanish Americans. The pleadings go on to list a number of special programs dealing with black problems. To further illustrate its awareness of minority needs, the licensee states that the KYNE-TV staff worked with a student group, Black Liberators for Action on Campus, on a 15-minute program promoting Black Heritage Week at the University of Nebraska.

28. In reply, the petitioner doubts the relevancy of the licensee's discussion of the make-up of the MOEBA and Department of Instruction staffs. The petitioner also points out that the programs listed as being of special interest to minorities are all "special" programs of limited duration. According to the petitioner, the station has no regularly scheduled year-round program service for blacks and other minorities. The petitioner goes on to state that special programs dealing with black heritage are not taught by blacks and are unable to instill in black students a sense of ethnic pride. Finally, the petitioner attaches to the pleadings a letter written by the licensee to the Omaha Human Relations Department, which discusses NETC's interest in hiring minority employees. Appended to this letter is a comment by BIEA stating that station KYNE-TV has an opening for a station manager. The petitioner claims that they have given the station information on qualified minority persons to fill this position, but apparently the station has not sought them out.

[*511] 29. The recitation of facts set forth above does not purport to include every detail set out in these very voluminous pleadings. However, it is felt that the foregoing does accurately describe the petitioner's allegations and the nature of the respective licensees' opposition pleadings.

30. Petitioner charges each of the stations made the subject of the instant petition to deny with discriminatory employment practices. In so doing, petitioner relies almost exclusively upon statistical data by comparing the number of minority persons employed with the station's total workforce. Simply indicating the number of minority persons employed, without citing specific instances of discrimination or a conscious policy of exclusion, is not sufficient under Section 309(d)(1) of the Communications Act of 1934, as amended (47 U.S.C. 309(d) (1)), to require an evidentiary hearing. Universal Communications Corp., 27 FCC 2d 1022 (1971); The Evening Star Broadcasting (WMAL), 27 FCC 2d 316 (1971), affirmed sub nom. Chuck Stone v. Federal Communications Commission, Case No. 71-1166, D.C. Cir., June 30, 1972, rehearing denied September 1, 1972. We also note that most of the stations n5 made the subject of the instant petition have employees drawn from the minority community. We have at no time indicated that fully proportional employment of minority groups is called for by our rules, since we do not believe that fair employment practices will necessarily result in the employment of any minority group in direct proportion to its number in the community, Nondiscrimination in Employment Practices of Broadcast Licensees, 23 FCC 2d 430 (1970). Nevertheless we note that the racial composition of the staffs of several of the stations herein clearly fall within a range of reasonableness when compared to the percentage of minorities within their service areas, cf. Chuck Stone v. Federal Communications Commission, supra. n6 Further, several of these minority employees, as well as a number of women employed by the stations, occupy high paid positions -- i.e., are in positions other than those generally classified as menial. Also, each of the stations, with the exception of KGBI-FM which because of its staff size is not required to do so, has developed an equal employment opportunity program designed to assure equal opportunities to all persons in the employment policies and practices. We have reviewed each of these programs and conclude that they do not contain barriers to equal employment opportunity and petitioners have failed to show that the licensees are exercising bad faith in the implementation of their programs.

n5 Station KGBI-FM only has three employees, none of whom are minorities. Station KYNE-TV has no employees since it is operated by remote control from Channel 12 in Lincoln, Nebraska, licensed to the Board of Regents of the University of Nebraska.

n6 While no employer's status can be judged alone by the percentage of minorities and women employed, as noted by the court in Chuck Stone v. Federal Communications Commission, supra, an extremely low rate of such employees may raise question requiring appropriate administrative action. See Report and Order re: Nondiscrimination in Employment Practices of Broadcast Licensees, 23 FCC 2d 430, 431 (1970).

31. Concerning Mr. Rodriquez's attempt to obtain employment at a number of the stations made the subject of the instant petition, we do not believe that merely applying for a job at a number of stations is sufficient to raise a substantial and material question of fact warranting exploration in an evidentiary hearing. Petitioners have not submitted [*512] any facts which would at least indicate that positions were available at any of the stations. Nor do the situations involving Mrs. Archie and Mrs. Carter indicate discriminatory employment practices. With reference to Mrs. Archie, we take note of the licensee's letter of July 1, 1971, explaining the efforts undertaken to train and qualify her and her subsequent employment termination. Mrs. Archie was given a written evaluation of her performance and, apparently, in preference to accepting the evaluation, requested permission to dictate a letter of resignation. The efforts undertaken to train Mrs. Archie and her subsequent dismissal do not disclose discriminatory employment practices. Further, with regard to Mrs. Carter, we find the licensee's explanation as set forth in paragraph 24 herein adequate.

32. The petitioner's allegations concerning the lack of programming for the black community has two aspects. The first concerns the question of discrimination against black recording artists. Generally, this is an area which the Commission is reluctant to enter since the choice of musical selections played is, to a large extent, a matter of the licensee's discretion. Any other decision would place this Commission in the role of a censor, a posture which the Communications Act of 1934 prohibits us from taking. Additionally, BIEA has failed to submit any evidence that the stations made the subject of its petition do, in fact, discriminate against black artists who have recordings consistent with their overall program formats.

33. BIEA's second assertion is that the licensees have failed to present programs of specific interest to minority groups. A licensee is under an affirmative obligation to program to meet the needs and interests of his service area, including service to significant minority groups. This mandate, however, in no way requires that the licensee divide his program schedule so that a percentage of it corresponds to the percentage of minority groups in the community. See Universal Communications Corp., supra, and Stone v. FCC, supra. A licensee is faced with many conflicting and competing needs of various groups within his service area. How a licensee responds to these needs is a matter largely within its discretion. "He may not flatly ignore a strongly expressed need; on the other-hand, there is no requirement that a station devote twenty percent of its broadcast time to meet the need expressed by twenty percent of its viewing audience." Stone v. FCC, supra. An examination of each licensee's renewal application discloses that each station has featured programs relevant to community problems, including programs addressed to the problems of various ethnic and minority groups. Further, each of the stations has proposed programming which will adequately meet the ascertained needs and interests (i.e., problems) of its service area. We conclude, therefore, that each licensee in its overall programming has served the needs and interests of the public within its service area.

34. In view of the foregoing, we find that petitioner has failed to raise any substantial and material questions of fact which would warrant exploration in an evidentiary hearing, 47 U.S.C. 309(d)(1). We further find, upon our consideration of the above-captioned license renewal applications and other documents cited herein, that the licensees are qualified and that a grant of the above captioned applications, [*513] with the exception of those for Stations KOIL-AM-FM and KLNG, would serve the public interest, convenience and necessity.

35. Accordingly, IT IS ORDERED, That the petition to deny filed by the Black Identity Education Association is DENIED, and that the above-captioned applications, with the exception of KOIL-AM and FM and KLNG are hereby GRANTED. n7

n7 Final action on the renewal applications for KOIL-AM and FM and KLNG will be deferred pending the outcome of the proceedings in Dockets 19124 and 19274, respectively.

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

DISSENTBY: HOOKS

DISSENT:

DISSENTING STATEMENT OF COMMISSIONER BENJAMIN L. HOOKS IN WHICH COMMISSIONER JOHNSON JOINS

This matter is representative of ferment existing in virtually every major city in the country. Specifically, black community groups have petitioned to deny the license renewals of (almost) all broadcast stations in a particular market for failure on the part of the licensees to (1) serve the programming needs and interest of the black community, and (2) eliminate discriminatory employment practices.

In the present matter, the city involved is Omaha, Nebraska, the licensees are KETV-TV, KFAB (AM-FM), KGBI-FM, KLNG, KMTV-TV, KOIL (AM-FM) KOOO, KYNE-TV, WOW, KFMX-FM and WOW-TV, and the petitioner is the Black Identity Education Association ("BIEA"). The allegations proffered by BIEA are unquestionably serious enough to warrant renewal hearings. Radio Station WSNT, Inc., 27 FCC 2d 993 (1971); Alabama Educational Television Commission, FCC 2d , 23 RR 2d 800 (1972).

With respect to the first allegation, inadequate minority programming, the Commission as far back as 1928 (when it was the Federal Radio Commission) held that a licensee must serve the needs of all substantial groups within its service community in some fair proportion. See Great Lakes Broadcasting Company [FRC, December 17, 1928]; rev'd on other grounds, sub nom, Great Lakes Broadcasting v. FRC, 59 App. D.C. 197, 37 F. 2d 993 (1930). n1 That venerable case also recognized that, on the question of serving those needs, the Commission can consider programming. n2

n1 See generally, Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 F.C.C. 2d 650, 36 Fed. Reg. 4092, 13 RR 2d 1903 (1971).

n2 See also, F.R.C. v. Nelson Bros. Bond and Mortgage Co., 289 U'S. 266 (1933); National Broadcasting Co. v. United States, 319 U.S. 190; Red Lion Broadcasting v. F.C.C., 395 U.S. 367 (1969); Office of United Church of Christ v. F.C.C., 123 U.S. App. D.C. 328, 359 F. 2d 994 (1966).

Later, in the 1960 Network Programming Inquiry, 25 F.R. 729, we stated:

* * * 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 communities or service area, for broadcast service. 20 RR 1901.

And, on the singular topic of programming for blacks, the Commission has asserted:

We agree * * * that all broadcasters can make a significant contribution in understanding the serious racial crisis confronting [*514] our cities and that there is a need for broadcasters to be more responsive to the problems which exist in Negro communities. Mel-Lin, Inc., 22 F.C.C. 2d 165, 171, 18 RR 2d 787, 794 (1970).

With respect to the second allegation, discriminatory employment, the Commission has no long regulatory trail to meander. But, in a commendable display of social concern, the Commission was the first amongst the independent federal regulatory agencies to require those under its adjudicatory umbrella to establish, maintain and carry out a positive, continuing program of specific practices to assure equal opportunity in station employment. Nondiscrimination in Broadcast Employment, 18 F.C.C. 2d 240, 16 RR 2d 1561 (1969). In adopting its equal employment opportunity rules n3 the Commission explained its purpose:

n3 As they relate to broadcast facilities, such rules are codified as 47 CFR � 73.125 (AM), � 73.301 (FM), � 73.599 (Educational FM), and � 73.680 (TV). All of those sections require licensees to: 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 to participate fully in all organizational units, occupations, and levels of responsibility in the station.

The Commission's EEO rues were fortified by Report and Order, released June 3, 1970, 23 FCC 2d 430 (1970), which added a new � 1.612 (47 CFR � 1.612) to our Rules. � 1.612, in general, requires licensees to file annual statistical reports (Forms 395) and equal employment programs (Section VI of FCC Forms 301, 303, 309, 311, 315, 340 and 342).

We propose to require that each station with five or more fulltime employees develop an equal employment opportunity program, taking due account of such factors as station size and location, and demographic makeup of the area. [footnote omitted]. The scope of the program would vary with the size of the station and the nature of the community and the racial makeup, but its essential purpose for every station would be to assure equal opportunity in every aspect of station employment practice, including training, hiring, promotion, pay scales and work assignments. Id., 18 F.C.C. 2d at 244, 16 RR 2d at 1566, 1567.

The detailed programs required of licensees were designed to aid "significant minority groups (Negroes, Orientals, American Indians and Spanish Surnamed Americans) which may be in most need of assistance in achieving equal employment." Id., 18 F.C.C. 2d at 244, 16 RR 2d at 1568.

Not only are the foregoing laudatory goals a precatory enunciation of policy, the Commission's EEO requirements are embodied by federal rules (see f.n. 3, supra.) which have the force of law, the violation of which rules could subject a licensee to monetary forfeiture (47 U.S.C. � 503(b)(1)(B)), license revocation (47 U.S.C. � 312(a)(4)), or criminal prosecution (47 U.S.C. � 502).

Today, a black group from Omaha, with admitted standing to participate in this matter, (Memorandum Opinion and Order, pars. 3-5) has filed a number of petitions to deny. Under Section 309 of the Communications Act, n4 petitioners need only make "specific allegations of fact to show * * * that a grant of the application would be prima facie inconsistent with [the public interest]." n5

n4 47 U.S.C. � 309, as amended (1964).

n5 Id. at 309(d)(1).

Unlike the deficiencies found by the Court in Stone v. F.C.C. Case No. 71-1166 (D.C. Cir., June 30, 1972), BIEA does plead specific allegations including omissions by several licensees to develop "training, [*515] hiring and promotion" programs for minority employees. Nondiscrimination in Broadcast Employment, supra, 18 FFC 2d at 244. Another station (KETV-TV), according to BIEA's pleadings, lost two black newsmen, deleted its minority news program, was contacted by a New York City minority training program about the vacancies, and refused to act on the information. Id., par. 25.

In connection with these allegations, and mindful of the requirement that licensees must conduct a continuing, affirmative, equal employment program with "positive recruitment, training, job design, and other measures needed to insure genuine equality of opportunity" (See f.n. 3, supra), the allegations were treated as follows. KETV-TV, as far I can discern from the ruling, has not answered the charge against it. KFAB (AM-FM) retorts: "When vacancies have occurred in the past, we have contacted schools and other employment sources. Minority people with the necessary qualifications have not been available." Memorandum Opinion and Order, par. 10.

The majority ruling regards the allegations and responses as raising no "substantial and material questions of fact warranting a hearing". Id., par. 32. See, however, f.n. 7, infra. But, � 309(d)(2) of the Communications Act merely requires petitioners to make specific "allegations" of fact at this stage of the proceedings; n6 petitioner is not obliged to offer conclusive proof until hearing.

n6 Stone v. FCC, supra.

BIEA "specifically" alleges the KFAB (AM-FM) assertion regarding unavailability of qualified minority staff applicants is a "lie". n7 Today's Memorandum Opinion and Order does not even attempt to delve into that conflict; rather the decision erroneously decrees that "petitioner has merely compared the number of minority employees at each station with the station's total employment force", Memorandum Opinion and Order, par. 30, and that "the allegations raised by BIEA have been effectively rebutted by the licensees." Id. at par. 35. It follows from the ruling, then, that KFAB (AM-FM) has satisfactorily shown the absence of qualified or qualifiable minority applicants when job openings arose. If so, where?

n7 While BIEA's one-word retort as to the verisimilitude of the assertion may not qualify in a majority's view, as a specific factual allegation, 47 U.S.C. � 309(d)(1), it would certainly be sufficient in any legal proceeding, from Common Law to Federal Practice, to trigger a substantial and material factual dispute and isolate a contested issue. Additionally, the Commission is by no means compelled to renew because a petition to deny has not achieved some abstract standard of specificity; the Commission may renew only in the absence of "substantial and material [questions] of fact." 47 U.S.C. � 309(d)(2)(e), no matter how those questions surface.

Assume, arguendo, that the aforementioned allegations do not somehow represent "specific allegations of fact." 47 U.S.C. � 309(d) (1). Inaction here by the Commission would still fly in the face of its express posture on equal employment, to wit:

It has also been urged by a substantial number of parties active in this field that the equal employment opportunity policy cannot be effectively implemented by relying solely upon individual complaints. They point out that consideration of complaints, particularly if referred to other agencies, is time consuming (a point also made by industry parties), and they state their experience that many people will not complain even though they suspect or know they have been treated unfairly in respect either to initial [*516] employment or management practices, that many people will not even seek employment where they believe discriminatory practices to exist and that individuals have great difficulty in demonstrating the existence of discrimination where it does exist.

* * *

Moreover, reliance solely upon a complaint procedure to implement equal employment opportunity cannot cope with general patterns of discrimination, developed out of indifference as much as out of outright bias.

* * *

Despite the workload problems, these conditions impel us to adopt further requirements to assure equal employment opportunity especially in view of the urgent national need cited in our earlier opinion. We believe it is vital that such action be taken. n8

n8 Nondiscrimination in Broadcast Employment, 18 FCC 2d 240, 242-243, 16 RR 2d 1561, 1564-1565 (1969). That document quotes, at length, the view of the United States Civil Rights Commission that complaint-oriented equal employment programs are generally weak and ineffective.

There is no conceivable way I can square the above language with the Commission's summary treatment when alerted by BIEA's averments.

I here stress that I am in no way prejudging the efficacy of BIEA's allegations or assuming EEO rule violations or failure to serve the community on the part of any licensee named; if there are reasonable explanations, particularly with respect to the allegations concerning KFAB (AM-FM) and KETV-TV, I am open to them. I am, though, closed to the Commission's apparent neglect in today's decision to heed Judge Burger's (now Chief Justice Burger) edict in Office of Communication of the United Church of Christ v. F.C.C. 138 U.S. App. D.C. 11, 425, F 2d 543 (1969), that:

* * * a "Public Intervenor" who is seeking no license or private right is, in this context, more nearly like a complaining witness who presents evidence to police or a prosecutor whose duty 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. Id., 138 U.S. App. D.C. at 115, 425, F 2d at 546 (1969). (Emphasis added).

Hence, not only does the majority (1) abjure from inquiring into the substance of petitioners allegations, sua sponte, as it vowed to do in its EEO rule making; (2) overlook controverted -- and in several instances uncontroverted -- factual allegations evincing possible rule violations; it (3) also fails to follow a fundamental precept of administrative law that "an agency must articulate with clarity and precision its findings and the reasons for its decisions." WAIT Radio v. F.C.C., 135 U.S. App. D.C. 317, 320, 418 F 2d 1153, 1156 (1969) (citing Justice Harlan in the Permian Basin Area Rate Cases, 390 U.S. 747, (1968)); See also, 560 Broadcast Corporation v. F.C.C., 135 U.S. App. D.C. 330, 418 F 2d 1166 (1969); Cf., West Michigan Telecasters v. F.C.C. U.S. App. D.C., F 2d (1972).

In this instance, and although the Commission's "statement of the reasons for denying the [BIEA] petition" is certainly "concise", 47 [*517] U.S.C. � 309(d)(2), the statutory finding that there "are no substantial and material questions of fact and that a grant of the applications would be consistent with [the public interest]", Ibid, has not been made with anything resembling the obligatory lucidity.

Therefore, sharing the concern of the minority groups across this land for a better shake from the broadcast medium and a more understanding ear from the government, at a minimum, I would have looked deeper into the protestations of BIEA. Somebody, someday soon, must get to the source of black disaffection with the media. Omaha is as good a place as any to start.