In the Matter of
Liability of McLENDON PACIFIC CORP., LICENSEE OF STATION
KABL, OAKLAND, CALIF. For Forfeiture
Docket No. 16214
5 F.C.C.2d 855 (1966), 8 Rad. Reg. 2d (P & F) 1187 (1966)
RELEASE NUMBER: FCC 66-1014
(November 16, 1966 Adopted)
COMMISSIONER JOHNSON FOR THE COMMISSION: CHAIRMAN HYDE ABSENT: COMMISSIONER COX CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT.
Marcus Cohn and Martin J. Gaynes, on behalf of McLendon Pacific Corp. (KABL), respondent; Wilbur C. Cole, Jr., on behalf of the city of Oakland, Calif., and its officials; and William A. Kehoe, Jr., and Edward J. Reilly, on behalf of the Commission's Broadcast Bureau.
1. McLendon Pacific Corp., licensee of KABL(AM) in Oakland, Calif., [FN1] has been charged with violations of the Communications Act and the Commission's regulations in two particular respects. One charge concerns the failure to identify the sponsor of commercial messages. [FN2] The other involves KABL's efforts, through station identification and otherwise, to identify itself with San Francisco rather than Oakland. [FN3] Chief Hearing Examiner James D. Cunningham recommended a forfeiture in the sum of $10,000 and KABL has filed exceptions to his decision. [FN4]
FN1 McLendon is also the licensee of KABL-FM, San Francisco, but that station is not involved in this proceeding.
FN2 Sec. 317 of the Communications Act of 1934, as amended, and sec. 73.119 of the rules.
FN3 Sec. 73.117 of the rules.
FN4 The initial decision of the Chief Hearing Examiner (FCC 66D-27) was released May 11, 1966, and KABL filed exceptions and a brief in support thereof on June 10, 1966. Other pleadings before the Commission are: The reply to exceptions and brief, filed by the Chief, Broadcast Bureau, on July 8, 1966; a statement in lieu of a reply brief, filed by the city of Oakland on July 13, 1966; a motion to accept the filing of an answer to the Broadcast Bureau's pleading, filed by McLendon Pacific Corp. on July 13, 1966; and an answer to the Broadcast Bureau's pleading, tendered by McLendon Pacific Corp. on July 13, 1966. Oral argument was held before the Commission, en banc, on Sept. 29, 1966. Except as modified by our decision herein, and by our rulings on exceptions attached hereto as an appendix, we adopt the findings and conclusions set forth in the initial decision.
2. KABL was charged with airing upon 57 occasions between February 1 and 19, 1965, a commercial message concerning automatic washers and dryers in behalf of the United States Steel Corp. without disclosing the name of the sponsor. KABL concedes the truth of the charge but contends that no forfeiture may be imposed since the omissions were neither willful nor repeated. [FN5] In our view the offenses were clearly repeated, and we shall therefore assess a forfeiture of $2,000.
FN5 KABL argues that United States v. Midwest Radio-Television, Inc. (D.C. Minn., 1966), 249 F. Supp. 936, precludes the imposition of a forfeiture for such conduct as not within the contemplation of sec. 503(b)(1)(B) of the act. In Midwest, two omissions of sponsorship identification occurred within the same hour on one day. The court, after a trial de novo, refused enforcement of the monetary forfeiture imposed by the Commission (FCC 63-1024, 1 R.R. 2d 491). Manifestly, the case is factually distinguishable from the one before us where there were committed 57 offenses over a period of 19 days.
3. We expressly find that the failureto identify the sponsor did not result from any improper intent to conceal from, or to mislead, the public; that it resulted from the merely careless failure to add the 'live tag' to the recorded announcement. [FN6] We therefore conclude that no additional forfeiture is warranted for willfulness.
FN6 The 'live tag' is that portion of the commercial message which is added to the prerecorded announcement at the broadcast station. Usually, the manufacturer or national advertiser prepares and distributes the prerecorded announcement, and the 'live tag' identifies the local dealer or dealers who carry the product advertised.
4. Our assessment of a forfeiture of only $2,000 for KABL's violation of the sponsorship identification rule is based on the particular facts of this case. It should not be construed as an indication that the Commission will tolerate any laxity by broadcast stations in meeting their obligation to identify the sponsors of commercial programs.
5. Congress intended by the enactment of the sponsorship identification rule to prevent public deception by concealing the fact that the broadcast of particular programming was induced by the payment of a consideration to the licensee. [FN7] As we have previously stated: [FN8]
FN7 Sponsorship Identification of Broadcast Material, FCC 60-239, 19 R.R. 1569, 1570 (1960).
FN8 Northern Pacific Radio Corp., FCC 62-1184, 24 R.R. 543, 545 (1962).
6. * * * The fact that a station may broadcast unidentified paid matter for what it considers a good cause, that it may be discovered after such broadcasts that no undesirable results were produced thereby, and the fact that the broadcasting station may have been unaware of the requirement that all paid matter must be identified, cannot serve to excuse the noncompliance with the law. Broadcast licensees are expected to be aware of the requirements of the laws under which they operate and the purpose for which they operate their stations cannot alter those requirements. The members of the public have the right to evaluate the person or concern with whom they are asked to deal, and it is the purpose of section 317 of the act and section 3.119 of the rules to require that the names of such persons or concerns be announced to the public so that the right may be exercised.
The public interest requires strict compliance with the sponsorship provisions of the act and of our rules. We shall, therefore, insist upon such compliance by all operators of broadcast facilities.
6. KABL's alleged violation of the station identification rule [FN9] is based upon its conduct in making announcements required by the rule at specified intervals and in its 'local color' announcements at other than the specified intervals. [FN10] In making the required station identification, KABL coupled the announcement of its call letters and location with language concerning its coverage of San Francisco (e.g., 'in the air everywhere over San Francisco ') and the clanging of a cable car bell. Both before and after the announcements made at the required intervals KABL broadcast 'programettes' and 'vignettes' relating principally to San Francisco. Unquestionably, KABL was attempting to create the impression that KABL is a San Francisco rather than an Oakland station.
FN9 Sec. 73.117 of the Commission's rules provides in pertinent part that: '(a) A licensee of a standard broadcast station shall make station identification announcements (call letters and location) at the beginning and ending of each time of operation and during operation (1) on the hour and (2) either on the half hour or at the quarter hour following the hour and at the quarter hour preceding the next hour: * * *.'
FN10 The charges relate to conduct on Feb. 17 and 18 and on Aug. 19, 1965, when the station's programs were monitored.
7. Full measure of our concern over this practice is reflected in the fact that we have under consideration amending the station identification rule to prohibit a station permittee or licensee from engaging in this clearly undesirable practice. Some of the reasons for our concern are set forth in the dissenting opinion -- reasons we find, however, more persuasive in supporting a change in the rule than in urging its applicability in this adjudicatory case. For the fact remains that by announcing the station's call letters and the city in which it is licensed, KABL complied with the literal provisions of the rule and nothing more was required.
8. KABL has excepted to the Commission's consideration of an alleged violation of section 73.30 of the rules. [FN11] The notice of apparent liability identified the rule as one involved in this proceeding. Thus, the notice was not deficient in that respect. [FN12] The notice did not, however, support the charge with sufficient factual allegations. [FN13] Only acts and omissions concerning KABL's station identification procedures were specified. KABL's exception is, therefore, sustained.
FN11 KABL alleges that a violation of the rule was not pleaded in the notice of apparent liability or, if pleaded, that the factual proof does not support a conclusion adverse to the licensee. Sec. 503(b)(2) of the Communications Act provides that a notice of apparent liability is not valid unless it 'sets forth the date, facts, and nature of the act or omission * * * charged and specifically identifies the particular provisions of the law, rule, or regulation * * * involved.'
FN12 KABL's argument is premised on the omission of any mention of sec. 73.30 in par. 11 of the notice, which specified the other laws and rules which KABL was charged with violating. A fairminded person reading the entire document would be placed on notice that the provisions of sec. 73.30 were under examination. We must, therefore, reject KABL's argument.
FN13 Sec. 73.30 provides that each standard broadcast station will be licensed to serve primarily a particular community which will be specified in the station license. In addition, the rule concerns station location, transmitter site, program origination, signal strength, and the like.
9. Accordingly, it is ordered, This 16th day of November 1966, that the motion to accept filing of answer, filed by McLendon Pacific Corp. (footnote 4, supra), Is granted, and the answer to Broadcast Bureau's reply, tendered by McLendon Pacific Corp. (footnote 4, supra), Is accepted.
10. It is further ordered, That McLendon Pacific Corp., licensee of station KABL, Oakland, Calif., Forfeit to the United States the sum of $2,000 for repeated failure to observe section 317 of the Communications Act of 1934, as amended, and section 73.119 of the Commission's rules. Payment of the forfeiture may be made by mailing to the Commission a check or similar instrument drawn to the order of the Treasurer of the United States. Pursuant to section 504(b) of the Communications Act and section 1.621 of the Commission's rules, an application for mitigation or remission of the forfeiture may be filed within 30 days of the date of receipt of this decision; and
11. It is further ordered, That the Secretary of the Commission send a copy of this decision by certified mail, return receipt requested, to McLendon Pacific Corp., licensee of station KABL, Oakland, Calif.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
STATEMENT OF COMMISSIONER KENNETH A. COX, CONCURRING IN PART AND DISSENTING IN PART
I concur as to the majority's disposition of the sponsorship identification question but dissent as to its ruling on the station identification issue.
KABL's alleged violation of the station identification rule [FN14] is based upon its conduct in making announcements required by the rule at specified intervals and in its 'local color' announcements at other than the specified intervals. [FN15] During February 1965, the required station identification was announced as follows:
FN14 Sec. 73.117 of the Commission's rules provides in pertinent part that: '(a) A licensee of a standard broadcast station shall make station identification announcements (call letters and location) at the beginning and ending of each time of operation and during operation (1) on the hour and (2) either on the half hour or at the quarter hour following the hour and at the quarter hour preceding the next hour: * * *.'
FN15 The charges relate to conduct on Feb. 17 and 18, and on Aug. 19, 1965, when the station's programs were monitored. The notice of apparent liability charged that respondent's conduct indicated a willful or repeated violation of sec. 73.117. It further charged a willful or repeated violation of sec. 503(b)(1)(A) of the Communications Act for the failure to operate KABL substantially as set forth in the station license which, in accordance with sec. 73.30 of the Commission's rules, specifies the particular community which the licensee must primarily serve.
This is Cable, K-A-B-L Oakland -- 960 on your dial, in the air everywhere -- in San Francisco. (Sound effect of cable car bell.)
In April 1965, McLendon
acquired an FM station which is licensed to San Francisco. This station,
which duplicates the programming of the standard
broadcast facility at Oakland, is assigned the call letters KABL-FM. After acquiring KABL-FM, the following identification announcement was used: [FN16]
This is Cable, KABL, Oakland, and KABL-FM, San Francisco. In the air everywhere over San Francisco (sound effect of cable car bell).
FN16 The examiner's finding concerning the station identification announcement used after the acquisition of KABL-FM is apparently in error.
Thus, the station locale, Oakland, was mentioned in all of the hour and half hour required announcements on the monitored dates. However, even these announcements tend to dilute the required identification of the station with its city of assignment and thereby to confuse the listening public as to the location and primary service obligation of the station. More significantly, in the numerous time and temperature announcements, the unsponsored programettes and vignettes, and the promotional announcements which were broadcast frequently between the required station identifications, Oakland was almost completely ignored. When mention was made of the temperature 'in the city' or 'downtown,' KABL concedes that San Francisco, not Oakland, was intended. The programettes and vignettes broadcast by the station described historical events and landmarks of San Francisco, or extolled the beauty and virtues of that city. Only rarely did the programettes mention the history or landmarks of Oakland. The question which the Commission must answer is whether the mention of Oakland in the required hour and half hour station announcements precludes a finding that the licensee's general practice violates the station identification rule. For the reasons set forth below I conclude that it does not.
A broadcast facility is expected to program for its entire service area. [FN17] Nevertheless, it is required to serve primarily the community to which it is assigned and which is specified in the station's license. [FN18] At least one purpose of the station identification rule [FN19] is to publicize the station's relationship to its assigned community so that listeners may judge whether the station is fulfilling its community obligations; another purpose is to enable members of the public to ascertain which facilities are available for local public service programming or for local public service announcements. A passing reference in the required announcements to the name of the assigned community which is so completely submerged by references to another, usually larger, community both in those announcements and in innumerable announcements which precede and follow identification of the licensed location as to efface from the recollection of the listener that the assigned community had been mentioned does not, in my opinion, constitute a station identification within the contemplation of the rule. [FN20] On the contrary, I believe that a licensee is not only prohibited from making 'studied attempts * * * to conceal the true location of broadcast facilities,' but that he must exercise care to 'avoid promotional material which might be construed as an affirmative representation that a station is assigned to a city other than that specified in the construction permit' or station license. [FN21] I also believe that a licensee which fails truly to identify its facility with the community in which the station is licensed comes within the contemplation of section 503 (b)(1)(A) of the act.
FN17 In re Petersburg Television Corp., 10 R.R. 567 (1954).
FN18 Sec. 307(b) of the Communications Act; sec. 73.30 of the Commission's rules. The pertinent portion of sec. 73.30 provides that 'each standard broadcast station will be licensed to serve primarily a particular city, town, political subdivision, or community which will be specified in the station license and the station will be considered to be located in such place.' I cannot agree with the majority that the notice of apparent liability did not sufficiently support the charged violation of sec. 73.30 with factual allegations. The effort to associate the station with San Francisco through its identification practices was clearly alleged and those same practices constitute operation inconsistent with the license and with the important policies underlying its specification of the city of assignment. Sec. 503(b)(1)(A) of the Communications Act provides that a forfeiture may be assessed against a licensee or permittee of a broadcast station who 'willfully or repeatedly fails to operate such station substantially as set forth in his license or permit.'
FN19 Sec. 73.117 of the Commission's rules.
FN20 Star Broadcasting, Inc., FCC 63-63, 24 R.R. 919, 920 (1963).
FN21 Gulf Television Company, 12 R.R. 447, 470(1), 473 (1956).
The wording of KABL's identification announcements at the required times points up service 'in San Francisco' or 'over San Francisco.' The clanging of the cable car bell is a distinctive characteristic of that city. The emphasis upon San Francisco and the absence of, or only occasional references to, Oakland in the programmettes, promotional statements, and other announcements preceding and following the required station identification seems of decisive significance to me. In view of the combined effect of the foregoing factors, the single mention of the licensed location in the announcements on the hour and half hour was so completely offset as to create the image of a station assigned to San Francisco, or at most having a dual location, Oakland-San Francisco. In the latter connection, it should be noted that KABL has never sought or been granted permission to have such a dual location, as required by our rules, and, therefore, could not properly convey to the listening public the image of dual Oakland-San Francisco location in the manner in which it did, both in the required announcements and the promotional announcements. The conduct established in this case thus defeated to a substantial degree the intent and purpose of requiring station identification announcements. In my judgment, therefore, KABL repeatedly violated section 73.117 of the rules and section 503(b)(1)(A) of the act. [FN22] In this connection, it should be noted that the offenses occurring in February 1965 preceded the acquisition of the San Francisco FM station, so that there was even less excuse at that time for the overwhelming emphasis upon the AM station's identity with San Francisco and the deemphasis of Oakland.
FN22 In reaching this conclusion, I have relied upon matter broadcast over the air. However, newspaper advertisements, business letterheads, or other nonbroadcast matter referred to by the examiner in his initial decision (pars. 12, 13) are relevant as indicating intent underlying the form of broadcast announcements used.
I believe that the licensee of KABL repeatedly violated the spirit and purpose of the identification requirements of section 73.117 of our rules. I think the Commission's construction of this rule provision in Gulf Television Company, 12 R.R. 447 (1956), put broadcasters on notice that they cannot rely on token compliance in the required announcements and then subvert the purpose of the rule by use of a flood of additional announcements which create a completely different impression. I believe these practices also constituted repeated violation of section 73.30 of the rules by undercutting the Commission's policy of assigning standard broadcast stations on a basis of association with, and service of, their cities of assignment. Under all the facts in this case, I conclude that these violations were also willful. I would therefore sustain the examiner's imposition of the maximum forfeiture of $10,000.
RULINGS ON EXCEPTION BY McLENDON PACIFIC CORP. TO THE INITIAL DECISION
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE