In Re Applications of NATIONAL
File No. BRCT-1; File No. BRCT-3; File No. BRCT-7
FEDERAL COMMUNICATIONS COMMISSION
20 F.C.C.2d 58; 17 Rad. Reg. 2d (P & F) 563
RELEASE-NUMBER: FCC 69-1041
September 24, 1969 Adopted
MEMORANDUM OPINION AND ORDER
BY THE COMMISSION: COMMISSIONER COX CONCURRING IN THE RESULT; COMMISSIONER
; COMMISSIONER H. REX LEE ABSENT.
[*58] 1. The Commission has before it: (1) Three substantially identical
pleadings entitled "Petition To Revoke Broadcasting License,"
directed against the three network owned-and-operated television stations in
2. Petitioner Anthony R. Martin-Trigona
identifies himself as a citizen of the
3. Petitioner's final basis for the claim of
standing he says -- is predicated on the independent "public
interest" standing which exists regardless of petitioner's residence,
location or relationship to the licensee (i.e. "ombudsman" status
intervention). This inherent standing
exists because all licensees must operate at the necessity and convenience of
the American public and have an affirmative, non-delegable duty to operate in
the national public interest. To the
extent that any licensee does not operate in the public interest, a public
interest cause of action for revocation of a license may be asserted by any
member of the public. Petitioner asserts that the Commission recognized this
"general public interest standing," when it stayed the renewal of
Time-Life licenses in
4. The issue of standing in this case is
concerned with the principles set down by the court of appeals in Office of
Communications of United Church of Christ v. FCC, 359 F. 2d 994, 1001-1002
(CADC, 1966). That case established
that the responsible representatives of the listening public in an area had
standing to challenge the renewal of license of the stations serving the area,
and further stated that the Commission might adopt appropriate regulations in
this field to delineate which challengers represent responsible community groups
or organizations. We believe that Mr.
Martin-Trigona lacks standing to challenge the renewals in question. The stations which he views are
5. The petitioner's complaints break down into
three main headings: (1) Antitrust violations; (2) conglomerate conflicts of
interest; and (3) undue concentration of media power in
n1 The petitioner prefaces these charges with this statement: "If the Commission rules that the entire broadcast record of [these stations] must be considered, then the petitioner respectfully reserves the right to amend and supplement this petition to provide additional information. * * *"
6. The petitioner has nowhere set forth facts
that show the networks to be in violation of any law, Commission policy or
rule. Ownership of the
n2 We shall not repeat here the policy rulings which we have made in the network field, concerning both the basis for viable networking and the benefits derived there from.
n3 Petitioner's assertions of alleged violations of law are no more than that. For example, petitioner asserts that NBC uses profits from its owned and operated stations, including WNBC-TV, to augment and subsidize its network activities and thus excludes new network entrants because of this unfair competitive advantage. But, petitioner has made no substantive showing in this respect. Based on our own experience, we believe that network ownership of stations is important to effective networking, which in turn serves the public interest. But again, our experience leads us to believe that it is not network ownership of stations which blocks development of new networks; after all, there are other multiple owners with stations in the larger markets, and we have stated our willingness to consider waiver of our multiple ownership policies, if we had some assurance that such waiver would result in a fourth network. The main obstacle, as we see it, is the difficulty of entering the field in light of the limited number of presently prized VHF stations in many markets available for affiliation to any new network. (See legislative history of 1962 all channel law, H.R. 1559, 87th Cong., 2d sess., pp. 3, 4 (S. Rept. No. 1526, 87th Cong., 2d sess., pp. 4, 7).)
[*61] 7. With regard to the petitioner's programming criticisms, it has long been our policy that the selection and presentation of programming material is essentially a matter within the sound discretion of the individual licensee. It is not our function to make artistic value judgments as to the worth or demerits of a given entertainment program. We cannot properly deal with the blanket charge that network programming is unimaginative, unentertaining or geriatric. The fairness doctrine question raised by the petitioner is similarly not litigable. The fairness doctrine necessarily deals with specific controversial issues of public importance, not vague and formless generalities. Here, the petitioner is silent as to what controversial issues were allegedly involved, what specific views were aired and what basis he has for the belief that fairness was not achieved.
8. Because the petitioner has not demonstrated that he has standing as a party in interest, It is ordered, That the petition to revoke broadcasting license directed against the three stations listed above Is dismissed.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
R. Martin-Trigona has petitioned this Commission to revoke the licenses of the
three network owned and operated television stations in
Petitioner has alleged four bases for his standing to seek revocation of the licenses: First, that he has had "extensive opportunity to study and investigate " the antitrust and concentration problems involved; second, that he is a shareholder in each of the conglomerate owners of the stations; third, that "but for" the tremendous oligopolistic profits made by these three stations, he would receive significantly modified programming from the networks, I will not consider the validity of these three allegations, because I feel that a grant of standing is justified on the fourth basis, which encompasses the other three.
Petitioner asserts, fourth, that he has standing to bring this case because of an "independent 'public interest' standing which exists regardless of petitioner's residence, location or relationship to the licensee." It is his contention that because all licensees operate as a public trustee for the American people, any alleged violation of the public interest by a licensee may be raised in a petition by an individual [*62] member of that public -- by a beneficiary of that public trust. Petitioner therefore has standing in this action, both as an ombudsman representing the public in general -- and thus reminiscent of the Federal courts' private attorneys general who are given standing to represent the public interest, see Associated Industries v. Ickes, 134 F.2d 694, 704 (2d Cir.), rev'd per curiam on other grounds, 320 U.S. 703 (1943) -- and as one of many individual members of the public who, collectively, are the beneficiaries of the broadcaster's public trust.
recent years the Federal courts have eased the strictness of the standing requirement
whenever the conditions of adversity and ripeness were reasonably met. See Flast v. Cohen, 392
It is important to note that the policies underlying the doctrines of standing to participate in broadcast renewal proceedings before this Commission differ importantly from the standing doctrines normally applied by the courts. In civil proceedings, for example, a court may wish to spare a defendant the burden of defending himself where the trial might otherwise be completely avoided -- that is, where the plaintiff lacks the involvement required for standing. In FCC license renewal proceedings, however, an examination of the licensee’s past record and future proposals can never be avoided -- for this Commission is required by statute to conduct an examination of the licensee's qualifications every 3 years, whether intervening members of the public participate or not. For this reason the question before the FCC is not, "will there or will there not be an examination of the licensee's qualifications?" but rather, "Will individual members of the public be allowed to contribute their views on the licensee's qualifications in a proceeding which must be conducted in any case?" The question is not whether the licensee will be spared the burden of defending his prior 3-year record, but whether in the process of making that defense he will be required to respond to public-interest arguments which the FCC should be raising, but which are often more easily raised by members of the public.
this Commission to deny standing to the petitioner's is to retreat into the
realm of legalisms and forsake its duty to serve the public interest. In Barrows v. Jackson, 346
directed at the FCC have similarly liberalized the doctrine of standing. Early cases gave competing private litigants
standing as representatives of the public interest, see Scripps-Howard Radio,
Inc. v. FCC, 316 U.S. 4, 14 (1942); FCC v. Sanders Brothers Radio Station, 309
U.S. 470 (1940), and recent decisions have emphasized that this right exists
for individual consumers of broadcasting's product. See Hale v. FCC Case No. 22751 (D.C.Cir., May 15, 1969); Joseph
v. FCC, 404 F. 2d 207 (D.C.Cir. 1968). But certainly the most significant court
decision on the subject of FCC standing was Office of Communication of United
Standing must be thought of as a practical and functional concept to be applied for particular purposes -- to regulate the flow of cases to the Commission and to ensure sufficient timeliness and adversity to make the case suitable for decision. At present, the Commission treats the doctrine as one to be applied rotely whenever anyone outside of the existing mechanical categories asks to be heard. I have had sufficient administrative experience to be as mindful as my colleagues of the potential impact upon this Commission of a flood of citizen protests. [*64] But I believe that there will be time enough to address such a change in circumstances when and if it arises. In the meantime, I believe we should make every effort not to -- or appear to -- be unduly restrictive in our interpretation of the standing requirements of this agency.
I can only conclude that this Commission is not listening to either the words of the Federal courts, or the trend of their decisions, in the area of standing. We do not enforce ownership, programming or engineering standards with much vigor. Recently, this Commission made clear it is not going to hold its licensees to minimal standards of business ethics either. Star Stations of Indiana, Inc. (WIFE-AM-FM), F.C.C. 69-992. If we are to judge licensees' performance or nonperformance in the public interest at all, as the law charges us to do, it is simply essential that the public be allowed to communicate with us. Judge Burger in United Church of Christ wrote:
theory that the Commission can always effectively represent the listener
interests in a renewal proceeding without the aid and participation of legitimate
listener representatives fulfilling the role of private attorneys general is
one of those assumptions we collectively try to work with so long as they are
reasonably adequate. When it becomes
clear, as it does to us now, that it is no longer a valid assumption which
stands up under the realities of actual experience, neither we nor the
Commission can continue to rely on it.
The gradual expansion and evolution of concepts of standing in
administrative law attests that experience rather than logic or fixed rules has
been accepted as the guide. (
Whether it be as private attorneys general, or in ombudsman status, or in one 's own right, each member of the American public should be allowed to question the performance of their broadcast licensees. When the performance of the giant networks is challenged by a member of the public, especially one experienced and well-versed in the problems he alleges, it is the Commission's statutory duty to hear his charges, rather than hide behind the formal doctrine of standing.
section 309(e) of the Communications Act, the Commission must order a hearing
on a renewal application when "a substantial and material question of fact
is presented or the Commission for any reason is unable to make the finding
" that the public interest, convenience, and necessity will be served by
renewing the license. In addition, the
Court of Appeals for the
The majority of the Commission concludes:
The petitioner has nowhere set forth facts that show the networks to be in violation of any law, Commission policy or rule.
[*65] The petitioner has not made any showing as to how the grant of these renewals would be prima facie inconsistent with the public interest, convenience and necessity.
[No] * * * showing of serious questions is made here; rather there is an absence of any specific showing of abuse, law violation or discernible overriding public interest concern.
In their opinion the majority does not correctly summarize the petitioner's allegations; it does not answer the substantial issues raised by the petitions; and contrary to law and precedent it refuses to set the issues for hearing so that the questions can be resolved.
The majority has said that petitioner has not "set forth facts" showing a "violation of any law." But to the contrary, in the petition against CBS, for example, petitioner states:
WCBS-TV ownership by CBS stands as an egregious example of a major corporate licensee operating in violation of antitrust requirements, both as regards to a lessening of competition in an industry -- i.e., the television broadcasting and networking industry -- and as regards to actual economic power being used and tending to create a monopoly-oligopoly, In essence, all three national networks are operating in violation of, inter alia, the act of July 2, 1890, and the act of October 14, 1914 (15 U.S.C.A. sec. 1, 15) and all acts amendatory thereto, commonly known as the Sherman and Clayton Acts.
owns five major market VHF television stations with an estimated audience reach
of 38 million persons, or roughly 19 percent of the total population of the
* * *
* * CBS not only owns television stations and operates a national television
network, it also produces television programs, syndicates reruns, and is
entering the motion picture production business (see "Broadcasting,"
Apr. 14, 1969, p. 56). CBS also owns
the New York Yankees, the publishing house of Holt, Renehart & Winston, and
is no more contradictory nor scandalous concentration of economic power and
activities that CBS could be engaged in, when weighed against its public
service requirements and free market competition in the entertainment industry.
As a matter of longstanding precedent, ownership of motion picture production
and exhibition facilities -- i.e. in the case of CBS, exhibition on the CBS
television network -- has been incompatible with antitrust policy interests
In addition, ownership of WCBS-TV by a parent corporation which also operates a national radio network is also contrary to the public interest and antitrust requirements. Ownership of competitive media networks by the same company, in addition to its own competitive media license holdings, tends to produce conditions which effectively restrict competition from potential competitors.
* * *
CBS is obviously not a monopoly in the strict sense of the word, since it has two competitors; but to the extent it engages in monopoly practices (ownership [*66] of stations and networks, and punative motion picture production, and diversification in New York Yankees, Holt, and other activities) CBS represents a monopoly grafted on an oligopoly.
The majority also states that there is no showing that the renewal grant of these licensees would be "inconsistent with the public interest." The Communications Act does not require that an absolute showing be made in a petition; rather the mere presentation of a substantial and material question of fact necessitates a hearing. Petitioner has certainly met this minimum requirement. As an example, in the CBS petition, he says:
CBS owns three full-time maximum-power licenses in
Nationally, CBS owns 19 full-time stations, including AM-FM-TV stations in the Nation's top three markets. Looked at in conjunction with ownership of competing networks, this concentration of media power tends to further discourage competition and in fact, because of structural limitations in the spectrum, to lock in the existing national networks in perpetuity. The Commission is already aware of the coercive effects of undue market power in proposing its longstanding 50-50 rulemaking.
CBS fails to sustain any convincing burden of proof of operating WCBS-TV in the
overall public interest both as to concentration of media power and ownership
of competitive media. Nationally, CBS
controls 19 major market licenses and has affiliation agreements with hundreds
of stations. Wcbs-tv/ and the other O.
& O.'s provide a protective profit penumbra behind which the CBS corporate
complex has increased its power and expanded the scope of its activities in
areas totally unrelated to broadcasting.
The public interest would be better served both locally and nationally,
if the current network-owned stations in
In its most sweeping statement, the majority finds "no serious questions" and nothing of "overriding public interest concern" in the three petitions. Again from the CBS petition:
Derivative from and associated with CBS's antitrust and public policy violations and concentration of media power are the very real problems posed by internal conflicts in the CBS organization. CBS is an obvious entertainment and related activity conglomerate which has used television-radio profits to expand in numerous directions.
is more significant, and more difficult to discern on first sight, is the great
conflict between being a national news and programming source, and being a
secret defense contractor at the same time.
CBS must censor its news if it is to please its Department of Defense
customer; significant, and a particularly good instance thereof, is the case of
the CBS laboratories laser cameras used in
deciding to grant a license renewal to WCBS-TV, the crucial issue is not
whether CBS may have operated the station in compliance with minimum public
service requirements, in effect providing mechanical pro forma data on renewal
applications, but rather an examination of what the competitive and
countervailing advantages accruing to the public both locally and nationally
would be from a locally owned
It is clear that under the existing corporate structure of CBS, management has its hands full overseeing activities from baseball to book publishing, in addition to station and network ownership and management, and now movie production, as well as secret defense contracting, manufacturing, and record production, and that CBS as a corporate entity is unable to devote full and substantial attention to the major function and responsibility of a broadcast licensee: serving the public interest in the direct operation of the station license.
Not only does the corporate conglomerate status of CBS/ affect entry into the broadcasting industry, but in publishing, sports, and now movie production as well. The guaranteed (almost) profit potential of a New York VHF license is not being used to serve the necessity and convenience of the American public; it is being used to finance CBS corporate conglomerate venture which are in most instances totally unrelated or incompatible with the public interest requirements of a licensee. Clearly, as in the case of one-bank holding companies having other business interests, it is evident that essentially public service corporations with the inherent protections of legally restricted market entry and technical limitations (in the cast of radio and television) should not be allowed to speculate in unrelated and incompatible activities which do not serve the genuine and direct public interest of the station license itself.
If in all of these three lengthy petitions -- raising antitrust, concentration, and conglomerate issues -- the majority can find "no serious questions," then I have little hope that these important issues will ever be addressed by this Commission. The allegations I have quoted, and comparable ones from the other two petitions, raised substantial questions as to these licensee's performance in the public interest. I do not believe that this Commission has the legal authority summarily to dismiss such petitions without a hearing on their merits.