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In Re Application of WGN of COLORADO, INC., DENVER, COLO. For Renewal of License for Station KWGN-TV

 

File No. BRCT-104

 

FEDERAL COMMUNICATIONS COMMISSION

 

31 F.C.C.2d 413

 

RELEASE-NUMBER: FCC 71-827

 

August 25, 1971 Released

 

 Adopted August 4, 1971

 


JUDGES:

BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.  COMMISSIONER HOUSER ABSENT.


OPINION:

 [*413]  1.  The Commission has before it for consideration: (a) the above-captioned application for renewal of license of Station KWGN-TV, Denver, Colorado filed by WGN of Colorado, Inc. (licensee); (b) a Petition to Deny the above-captioned license renewal application filed on March 16, 1971, by the Colorado Committee on the Mass Media and the Spanish-Surnamed, Inc. (Committee); n1 and, (c) the licensee's Opposition to the Petition to Deny, filed on March 31, 1971. 

n1 The Committee claims to be responsible to the Mexican-American, Hispanic-American and the Spanish-Surnamed community of Colorado.

STATEMENT OF FACTS

2.  Initially, by way of background, it is noted that by Memorandum Opinion and Order adopted on March 4, 1971, the Commission granted the Committee an extension of time until March 12, 1971, to file petitions to deny the renewal applications of 46 Colorado broadcast stations (28 F.C.C. 2d 375). By letters of March 12, 1971, and March 14, 1971, the Committee requested a further extension of time until March 19, 1971, or, alternatively, an extension until March 15, 1971.  By letter dated March 17, 1971, this request for a further extension of time was denied (29 F.C.C. 2d 11). Nevertheless, on March 16, 1971, the Committee filed its petition to deny the above-captioned license renewal application for KWGN-TV.  Since the petition to deny was filed four days after the extension granted by the Commission it does not meet the requirements with respect to timeliness and is thus procedurally defective.  Sound regulation, of course, has procedural as well as substantive elements, and the public interest comprehends both.  Consequently, in view of the dilatoriness in raising their objections, we believe that the record before us warrants the dismissal of the Committee's petition as coming too late.  However, even considering the substance of the Committee's objections under Section 1.587 of the rules, we cannot say that the facts, or alleged facts, warrant designating the above-captioned license renewal application for hearing.

 [*414]  3.  The Committee first alleges that the licensee has failed to ascertain the problems of its service area, particularly with regard to the Spanish-Surnamed (Chicano) community.  In support of this contention the Committee points out that the licensee's Advisory Council, organized in 1954 and composed of 54 members, has only three Chicano members (an elected official, the head of the Denver Department of Welfare, and a doctor).  It is the Committee's position that placement of only three Chicanos on the Advisory Council does not meet the Commission's requirement of consulting with the community leaders of a significant segment of the community, since the Chicano community is not a monolithic community.  Further, the Committee contends that the licensee has not consulted with Chicanos who represent the "unorganized segments" of the Chicano community.  The licensee, in its opposition, stresses that its consultations with members of the KWGN Television Advisory Council "form only a part of the continuing relationship that station personnel maintain with representatives of civic, racial, ethnic, and cultural groups..." (Opposition, p. 3).  The licensee notes that, in addition to the Television Advisory Council, it conducted a survey of the Denver, Colorado area to ascertain the needs and interest of the public served by the station.  Regarding this survey, the licensee notes that it interviewed several Spanish-Surnamed community leaders, namely, Miss Marcella Trujillo of La Raza Unida (The United Race); James A. Garcia, Associate Director, Metro Denver Urban Coalition; and Armando R. Atencio, Chairman, American G. I. Forum, Skyline Chapter.  The licensee also notes that other problems confronting the Chicano community were learned from representatives of the Colorado and Denver Commissions on Civil Rights, Denver Opportunity, and the Metro Denver Fair Housing Center, Inc.  Further, the licensee points out that its survey of the general public included a 7% response from Spanish-Surnamed individuals in the service area.

4.  The Committee also alleges that the licensee has failed to maintain nondiscriminatory employment practices.  In support of this allegation the Committee draws certain presumptions from the Commission's rules concerning nondiscrimination employment practices (Section 73.680).  For instance the Committee asserts that, "... where employment records of a station show that it does not have any or many Spanish-Surnamed employees on the payroll, the station is prima facia guilty of discrimination in employment practices based on national origin..." (Petition, p. 20).  In this regard, the Committee states that "... it follows a fortiori, that stations which have training programs to make the qualificable into qualified employees, are prima facia guilty of employment discrimination where they fail to have any or many Spanish-Surnamed employees" (Petition, p. 20).  The Committee also state that, where the population includes a substantial percentage of Spanish-Surnamed Americans, a station, which in good faith is attempting to meet its obligations of nondiscriminatory employment will employ a percentage of Spanish-Surnamed employees which approximates the percentage of Spanish-Surnamed Americans in the total population.  In this connection, the Committee maintains that stations which fail to meet this standard are prima facia guilty of employment discrimination and must rebut this presumption  [*415]  (Petition, p. 20).  The Committee also states that "... where the employment records of a station show that it has Spanish-Surnamed employees only at the entry-levels and menial levels of employment, the station is prima facia guilty of 'patronismo'; i.e., employment discrimination on the grounds of national origin by relegating the Spanish-Surnamed to servile positions..." (Petition, p. 21).  With specific reference to the licensee's employment practices, the Committee points out that of a total of 79 employees of the licensee, only two (2.4%) are Chicano, while the metropolitan Denver area has a Chicano population of 9.8% and Denver has a Chicano population of 15.5%.  The Committee also maintains that the two Chicano employees hold "how if not non-visible" positions of a continuity clerk and a midnight news announcer.  The licensee, in its opposition, maintains that both of its Chicano employees (a news reporter-editor and a continuity clerk responsible for maintaining station logs) have positions involving "significant responsibilities in the successful operation of the station" (Opposition, p. 4).  The licensee also makes reference to its detailed showing in its renewal application in its program designed to insure equal opportunity in employment (Renewal Application, Exhibits E-1 and E-2).  Further, the licensee states that of 67 full-time employees, six are from minority groups, namely, three Black employees (news reporter, engineer, continuity clerk), one oriental employee (sales traffic clerk), and two Spanish-Surnamed employees (news reporter-editor, and continuity clerk).

FINDINGS OF FACT

5.  The Committee's assertion that the licensee has failed to ascertain the problems of its service area, particularly with regard to the Spanish-Surnamed community, is totally unsupported by the facts.  In essence, the Committee's pleading only takes issue with the composition of the KWGN Television Advisory Council in terms of the alleged under representation of the Chicano community.  However, we note that the Advisory Council is used by the licensee as part of its efforts to maintain a continuing relationship with community leaders.  In addition to the efforts of the licensee's Advisory Council, a formal ascertainment survey was conducted in conjunction with the renewal application.  The community leader portion of this survey consists of interviews with 81 community leaders of the service area, including representatives of the Spanish community.  Furthermore, a survey, primarily by telephone, was made of 500 members of the general public.  Moreover, this telephone survey was supplemented by personal interviews with members of the general public to insure a statistically reliable sample.  The public survey yielded a 7% response from Spanish-Surnamed individuals.  In its renewal application exhibits the licensee also enumerated and evaluated the problems ascertained, and proposed programming which, in its judgment, will attempt to meet these problems.  In sum, this record clearly demonstrates that the licensee has realistically and successfully endeavored to ascertain the needs, interests and problems from a representative cross-section of persons in that area.  It has effectively analyzed and evaluated these ascertained needs, interests and problems and set forth programming  [*416] proposals specifically designed to meet those problems.  Accordingly, based upon the record in this case, we find no necessity whatsoever for a hearing under a suburban issue.  Likewise, with regard to the Committee's employment discrimination allegations, the record before us adequately refutes these assertions.  The Commission's rules require licensees to establish and maintain a positive, continuing program of specific practices designed to assure equal opportunity in every aspect of station operation without regard to race, creed, color, religion, or national origin.  In its renewal application exhibits the licensee has clearly demonstrated that it has such a program.  Furthermore, we also note that the licensee employs members of three minority groups (see paragraph 4 above).  The Committee has submitted no evidence whatsoever of discrimination by the licensee, nor has the Commission received any complaints of discrimination from either employees of the licensee or job applicants.  Accordingly, we find that the licensee has not been guilty of discrimination and, further, that it maintains a program designed to promote the hiring and training of minority employees.  n2

n2 The licensee is working with Mr. W. Thomas Cook (Chairman of the Department of Speech, Radio and Television at Metropolitan State College of Denver) toward establishment of a financial assistance program for minority students.  Further, the licensee has offered to make available the use of its equipment and studio for a "work-shop" for students.

6.  One other matter concerning this proceeding warrants brief comment.  By affidavit, Mr. Richard E. Jungers, Vice-President and General Manager of WGN of Colorado, Inc., states that during a meeting held on March 15, 1971, representatives of the Committee informed him that no agreement would be possible unless KWGN hired two Spanish-Surnamed employees at salaries of not less than $600 per month.  Alternatively, the Committee offered to withdraw its petition and make no demands for programming or minority employment if KWGN would make a $15,000 contribution to the Colorado Committee on the mass media and Spanish-Surnamed, Inc.  Mr. Jungers states further that he found both alternatives unreasonable and, accordingly, rejected them.  These uncontested facts trouble us greatly.  The Commission has consistently encouraged community groups and licensees to meet in order to resolve their differences, particularly in the areas of programming and employment practices.  We have taken this approach in the belief that such problems are best resolved at the local level, rather than through government intrusion.  However, while we realize the great contribution made by responsible and representative citizen groups in promoting more responsive broadcast service, we fail to see how a demand for a contribution of any amount made contingent on the filing vel nom of a petition to deny contributes to worthwhile negotiations between such groups and broadcast licensees.  Rather, we are of the firm opinion that such demands are contrary to the concept of good faith negotiations and the public interest.

7.  Based upon the foregoing, it is concluded that the public interest, convenience and necessity will be served by a grant of WGN of Colorado, Inc.'s above-captioned license renewal application for Station KWGN-TV for a regular three-year term.

 [*417]  8.  Accordingly, IT IS ORDERED, That the informal objections filed by the Colorado Committee on the mass media and Spanish-Surnamed, Inc., against the license renewal application for Station KWGN-TV, Denver, Colorado are hereby DISMISSED.

9.  IT IS FURTHER ORDERED, That the application of WGN of Colorado, Inc. for renewal of license for Station KWGN-TV is hereby GRANTED for a term expiring April 1, 1974.

 

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.


 

DISSENTBY: JOHNSON

 

DISSENT:

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

In renewing the license of KWGN-TV, Denver, Colorado, and dismissing the petition to deny, the Federal Communications Commission today again frustrates minority participation in broadcasting.  In failing to find any significant material questions to designate for hearing the Commission erects what I believe to be an unreasonable barrier against a citizen organization attempting to vindicate fundamental minority rights.

I dissent.

On March 4, 1971, the Commission granted the Colorado Committee on the Mass Media and the Spanish-Surnamed, Inc. (the Committee) an extension of time until March 12, 1971, by which to file petitions to deny renewal application of 46 Colorado broadcast stations.  Colorado Broadcast Stations, 28 F.C.C. 2d 375 (1971). On March 12 and 14, 1971, the Committee requested a further brief extension of time.  The Commission denied that request, and I dissented.  29 F.C.C. 2d 11 (1971). The Committee eventually filed its petition to deny on March 16, 1971.  Since the petition was four days tardy the Commission decided to treat the complaint as an "informal objection." In any event, the Commission went on to address the merits of the petition.  Considerations of justice, traditional notions of administrative fairness, and the importance of the issues raised require no less.

The complaint of Denver's Chicano community raises two fundamental issues -- (1) ascertainment and (2) employment discrimination -- that I will explore in some detail below.

Before turning to these issues, however, I find it necessary to address a continuing problem that plagues the Commission's treatment of community groups.  The keystone of the appropriate Commission attitude has been well stated by then Circuit Judge Burger, now the Chief Justice of the United States: "The Commission... [has] an affirmative duty to assist in the development of a meaningful record which can serve as the basis for the evaluation of the licensee's performance of his duty to serve the public interest." United Church of Christ v. F.C.C., 425 F. 2d 543, 548 (1969). (Emphasis supplied.)

Despite this affirmative obligation, the Commission continues to treat racial complaints with a less than helpful "please-don't-bother-us" attitude.  This is plainly evident in much of the language the majority uses, i.e., referring to the community group's "dilatoriness in raising their objections" and in dismissing their petition as "totally unsupported by the facts." If anyone is proceeding with "dilatoriness"  [*418]  in a posture "totally unsupported by the facts," it is the Federal Communications Commission -- and not the Colorado Committee on the Mass Media and the Spanish-Surnamed, Inc.

There is little need to spell this out in much detail here.  We have traveled this wearisome road before.  This Commission twice before renewed the license of a station intertwined in racial discrimination problems.  Twice we were reversed -- in cases that have become classics in administrative law.  United Church of Christ v. F.C.C., 359 F. 2d 994 (D.C. Cir. 1966); United Church of Christ v. F.C.C., 425 F. 2d 543 (D.C. Cir. 1969).

The U.S. Court of Appeals in the last of those two celebrated cases said:

[A] "Public Intervenor" who is seeking no license... is, in this context, more nearly like a complaining witness who presents evidence to police or a prosecutor whose duty it is to conduct an affirmative and objective investigation of all the facts and to pursue his prosecutorial or regulatory function if there is probable cause to believe a violation has occurred.  n1

 

n1 United Church of Christ v. F.C.C., 425 F. 2d 543, 546 (1969).

 

As the Commission should come more and more to recognize, public interest groups have undertaken to supply on a local level the scrutiny of renewal applications that the Commission is simply unable to do because of a lack of time, manpower, or will. cf.  In re WSNT, Inc., 27 F.C.C. 2d 993, 1001 (1971) (concurring opinion of Commissioner Johnson).  When serious questions are raised, as they have been here by the Denver Chicano community, I firmly believe the Commission has an "affirmative duty" to seek the facts before dismissing the petition out of hand.  But this we have failed to do.  Instead of according the petitioners here the favored status of Public Intervenor "more nearly like a complaining witness" the Commission comes closer to dismissing them as a public nuisance.

 

I.  Ascertainment of Community Problems

The Committee first contends KWGN-TV has not conducted its ascertainment consistent with serving the interests of the Spanish-surnamed minority community.  This Commission has long recognized that the proper discharge of the licensee's duty to ascertain the needs and problems of the public it serves is crucial to serving the public interest, convenience and necessity:

The principal ingredient of the licensee's obligation to operate his station in the public interest is the diligent, positive and continuing effort by the licensee to discover and fulfill the tastes, needs and desires of his community, or service area for broadcast service.  n2

 

n2 Report and Statement of Policy re Commission En Ban Programming Inquiry, FFC 60-970. 20 P & R Radio Reg. 1901, 1915 (1960).

The importance of proper ascertainment of community problems is clear, and, therefore, any complaint based on the failure of the licensee to effectively ascertain community needs raises major public interest questions.

To facilitate effective ascertainment of community needs the Commission issued a Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 F.C.C. 2d 650 (1971). The Primer requires, inter alia, that the licensee determine the composition of the  [*419]  community in order to discover which leaders of various community groups must be consulted.

Question: How should ascertainment of community problems be made?

Answer: By consultations with leaders of the significant groups in the community to be served and surrounding areas the applicant has undertaken to serve, and by consultations with members of the general public.  In order to know what significant groups are found in a particular community, its composition must be determined...  The word "group" as used here is broad enough to include population segments, such as racial and ethnic groups, and informal groups, as well as groups with formal organization.  n3

n3 Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 F.C.C. 2d 650, 682 (1971).

 

In the face of this clear Commission policy, the Committee alleges the KWGN-TV Advisory Council, composed of 54 community leaders and established in 1965 to assist the station in consultation efforts with community leaders, contains only three Chicanos -- therefore grossly under representing the Spanish community.  This community is Denver's largest minority and number 15.4 percent of the city of Denver and 9.8 percent of the metropolitan area, for a total of approximately 120,000.  n4 In its renewal application the licensee says of the Council:

n4 Petition to Deny license of KWGN, Denver, Colorado for Renewal of Permit to Operate a Television Station, p. 5.

To assist it in its consultation efforts, KWGN-TV formed the Channel 2 Program Advisory Council in September, 1965.  The Council, which is now known as the KWGN Television Advisory Council, is composed of civic, business, religious, educational, cultural, agricultural, sports and labor leaders from Metropolitan Denver and surrounding areas.  The Advisory Council was initially created in connection with the application for the assignment of the Station's license from the previous owner...  A number of highly successful meetings of the Council prior to the assignment helped enable KWGN-TV to go on the air with a balanced television programming service, designed to meet the needs and interests of the community.  Since the assignment on March 4, 1966, the personnel of KWGN-TV have continued to seek program advice and suggestions from members of the Council through correspondence, telephone conversations and individual meetings.  It is the intention of Station KWGN-TV to continue to seek from the Advisory Council its advice and suggestions with respect to community needs and interests as well as the programming of the Station.  n5

n5 Renewal Application of WGN of Colorado, Inc., Exhibit P-1, pp. 1-2.

The licensee counters the Committee's charge that the Council does not contain enough Chicano leaders to effectively represent the community not by denying the charge; rather, the licensee states, by way of avoiding the central issue, that the members of the Advisory Council are not the only community leaders consulted.  The licensee alleges that it consulted three additional leaders of the Spanish community, although it is not clear that these individuals represent any group primarily organized to further the interests of Chicanos.  The licensee's response thus leaves open the question why there is such serious under representation on the Advisory Council -- as well as the actual role of the Council in the Denver ascertainment process.

The licensee never comes to grips with the Committee's charge that the licensee's ascertainment is inadequate:

Placement of two or three Chicano leaders on an advisory council does not satisfy the requirement of consulting with community leaders of a significant segment of the community.  While these three gentlemen represent the Chicano to a limited extent, the Commission should be appraised that the Chicano community  [*420]  in Denver, 120,000, is not a monolithic community in which the interests of that community can be represented by such a small number of representatives.  n6

n6 Petition to Deny, supra note 3, at 6.

 

The policy purpose of the Primer is clear: "Groups with the greatest problems may be the least organized and have fewest recognized spokesmen.  Therefore, additional efforts may be necessary to identify their leaders so as to better establish a dialogue with such groups and better ascertain their problems." n7 (Emphasis supplied.) It is abundantly clear that by simply stating that it consulted only three additional Chicano individuals who do not appear to represent significant Chicano groups the licensee has not come close to the "additional efforts' the law requires for an adequate ascertainment showing.  The Primer is clear in its requirement that the leaders of significant minority groups must be consulted, and it is no answer to the Committee's allegations that the licensee's public survey included a 7 percent Chicano response (which in any event is still inadequate in terms of percentage of the total community that is Chicano), thereby implying that the Chicano community -- and its leadership -- was effectively consulted.  It is not at all clear that the licensee has met its responsibility of seeking out leaders of the Chicano community, either through the dubious arrangements for the Advisory Council or through other devices outside the Council.

n7 Primer, supra note 2, at 684.

... an applicant may not arbitrarily avoid personal consultations with significant groups because the groups lack a highly developed formal structure; we believe that it is appropriate to revise the answer to indicate that additional efforts may be needed to identify leaders of less organized groups.  This may require... asking members of the particular group to identify who they consider to be their local leaders.  n8

n8 Id., at 666.

 

The purpose of this requirement is to ensure that minorities with important problems of concern to the whole community will be represented in the public affairs programming efforts of the stations.  There is little indication that the licensee in this instance put forth the necessary "additional efforts" to identify Denver's Chicano leadership.

If... such a group constitutes a significant group within the community, and an applicant fails to consult leaders of that group, his showing will be questioned by the Commission and is potentially subject to petition or informal objections from others.  n9  

n9 Id., at 665.

 

The real issue here is whether the licensee has adequately determined local problems so that it will be capable of effective public service programming.  In the final analysis, if the licensee has failed to consult seriously with minority groups (or has gone through sham motions for window-dressing purposes), it is the licensee's programming itself which will indicate the true effectiveness of the ascertainment efforts.

Moreover, the performance that concerns us is not the degree of sophistication used by the applicant in obtaining data.  Rather, it is his proposed programming.  n10

n10 Id., at 662.

 

As might be expected, KWGN-TV has reaped the harvest of a half-hearted ascertainment effort: Its programming only remotely touches the "tastes, needs, and desires' of Denver's Chicano community.  No-where  [*421]  in its renewal application does the licensee propose any Spanish language programming -- or any other programming -- which is specifically directed to the problems of its Chicano community.  Does the licensee believe that the problems of this group, the largest minority in Denver, are nonexistent or do not merit special treatment?  If so, there is significant evidence to the contrary.

The educational system in the United States, conducted in English, has not reached the substantial number of native Spanish speakers in this Community.  As a result, most of this Community does not read well in English or in Spanish.

Mexican Americans have an average educational level of only 7.1 years.  This is two years less than Blacks and five years less than Anglos.  Five out of eight Mexican American children in school today will drop out before the eighth grade.

In today's technological society the Community's low educational level confines it to the lower rungs of the economy.  The unemployment rate of Mexican Americans is twice that of Anglos.  In Colorado, 8.5% of Anglo families live in overcrowded and/or dilapidated housing, compared to 35.3% of Spanish-speaking families.  n11

n11 Petition to Deny, supra note 3, at 24.

 

In a speech on the floor of the United States Senate, Senator Joseph Montoya of New Mexico recently documented the plight of this minority.  This is not new; but this information has long been absent from significant public discussion about America's racial problems.

A Mexican American is seven times more likely to live in substandard housing than an Anglo.  The chance that his baby will be born dead, or will die before his first birthday, is roughly twice as great.

When talking on jobless statistics among the Spanish-speaking it is well to remember that 80% of those employed work at unskilled or semiskilled jobs.

The U.S. government has done more to help citizens of other lands learn English than it has for non-English-speaking American citizens in this country.

Meanwhile, selective service boards across the Southwest contain slightly less than 6% Spanish-speaking American membership, yet Chicanos account for nearly 20% of all Southwesterns killed in Vietnam.  n12

n12 117 Cong. Rec. S6311-S6314 (Daily Ed. May 6, 1971).

 

Senator Motoya also points out the significance of the media and its impact on this group:

Yesterday's shame burns in their hearts and minds.  Today's discrimination and bigotry is a lump in their collective throats they absolutely refuse to swallow.

America ignores their indignation and turns her back on their outrage at her peril.

Today it is the norm to pay lip service to equality while denying it in reality.  America's Hispanos are fully aware of this as well.  Their faith in broken promises and paper programs is waning rapidly.

Here lies the nub of our tragedy.  Anglo America actually believes in the reality of the image of the Hispano it has itself created.  Most Americans even peripherally aware of such problems do not consider it in any kind of serious light.  It will go away, they feel.  They are not really serious, they think.  They will go back to their chili and siestas, many actually believe.  And our media does nothing to disabuse the mass of Americans of either such false images or false sense of security.  Rather they make matters worse.  So the explosion, growing increasingly more severe, actually comes as a shocking surprise to most Anglo Americans.  n13 (Emphasis supplied.)  

n13 Id.

This language is reminiscent of the Kerner Commission's findings that the American media has failed in its obligation to present "A sense of the problems America faces and the sources of potential solutions." n14  [*422]  But most ominous, and similar in tone to the Kerner Commission's findings, Senator Montoya stated further:

n14 Cf., We need to heed the warnings of the Kerner Commission:

The absence of Negro faces and activities from the media has an effect on white audiences as well as black.  If what the white American reads in his newspapers or sees on television conditions his expectation of what is ordinary and normal in the larger society, he will neither understand nor accept the black American.  By failing to portray the Negro as a matter of routine and in the context of the total society, the news media have, we believe contributed to the black-white schism in this country.

Report of the National Advisory Commission on Civil Disorders 383 (Bantam Book Ed. 1968).

... realities of Spanish life grow uglier daily.  It is worth taking careful note of such Americans for time is running out.  There has been violence in recent months in several Spanish-speaking barrios.  Such disturbances are indications of what is coming.  We should heed them immediately.  n15

n15 Supra, note 12.

Has KNGN-TV presented significant programming to meet the significant problem of Denver's Chicano community -- i.e., education, discrimination, unemployment, substandard housing?  I think not. KWGN's record here is particularly inadequate.  In light of this evidence and the failure of KWGN-TV to propose any new programming directed primarily at the Chicano community, I find it dismaying that the Commission is able to find as "fact":

In its renewal application exhibit the licensee also enumerated and evaluated the problems ascertained, and proposed programming which, in its judgment, will attempt to meet these problems.  In sum, this record clearly demonstrates that the licensee has realistically and successfully endeavored to ascertain the needs, interests and problems for a representative cross-section of persons in that area.  n16

n16 Majority Opinion, p. 3.

However this case might be resolved, I believe the issues raised by the Denver Chicanos at least merit a full hearing.

II.  Employment Discrimination

The Committee also alleges, as a second major issue, that KWGN-TV "has not conducted its activities as a broadcaster in a manner commensurate with the public interest in employment practices which do not discriminate." n17 By now it should be understood that ensuring equal employment opportunity in broadcasting is an increasingly important responsibility for all licensees.  Equal Employment Opportunities, 47 CFR   73.680 (1971).  This Committee correctly states that the purpose of the Commission's Equal Employments rules is to open the door to minority employment participation in broadcasting.  The Committee alleges that only two of KWGN-TV's 67 full-time employees (something less than three percent) are Spanish-surnamed.  Further, even these two individuals are in jobs involving minimum responsibility; in any event, both are "off-camera."

n17 Petition to Deny, supra note 3, at 18.

The licensee answers by pointing out that it has six employees from racial minorities, and that the "detailed showing in the KWGN-TV renewal application on equal employment opportunity policies and practices clearly demonstrates that the station has pursued an affirmative policy of according equal employment opportunities." n18 This neatly avoids the Committee's allegation that Chicanos are seriously  [*423]  underrepresented on the station's staff in relation to the large Chicano population (15.4 percent in Denver, 9.8 percent in the metropolitan area) of the service area.  The obvious question: If KWGN-TV has such an "affirmative policy of according equal opportunities," why are Chicanos conspicuously underrepresented in all phases of employment, and why are there no Chicanos "on-camera"?

 

n18 Opposition to "Petition to Deny" for Renewal of license of Station KWGN-TV, Denver, Colorado, p. 4.

The Commission requires:

Each station shall establish, maintain, and carry out a positive continuing program of specific practices designed to assure equal opportunity in every aspect of station employment policy and practice.  n19

 

n19 47 C.F.R.   73.680.

 

The rules clearly require equal employment opportunity at all levels of station operations.  A station's equal employment program, no matter how elaborate it may be on paper, cannot count for much unless and until hiring of racial minorities bears some reasonable relationship to the minorities' compoisiton of the area's population.  In view of this KWGN-TV has not come close to rebutting the charge that it has failed -- and failed dismally -- to conduct its broadcasting activities in line with the spirit and intent of the Commission's employment discrimination rules.

A more detailed examination of the station's employment policies (as stated in its renewal application) poses serious questions about the effectiveness of the station's efforts.  First, the station's program merely "parrots" the Commission's suggested steps for affirmative action.  n20 This suggests that KWGN-TV has not taken these rules seriously, but has merely adopted word for word the Commission's suggestions without effective implementation.  Nonetheless, the Commission accepts without question the licensee's assertions as findings of fact.  In his affidavit, Richard E. Jungers, the licensee, states:

n20 18 F.C.C. 2d 249, 251.

... the station is taking further steps toward the establishment of a program in cooperation with the Metropolitan State College of Denver for the training of minority students.  n21

n21 Affidavit of Richard E. Jungers, pp. 2-3.

 

The licensee states elsewhere:

In addition to being aware of its responsibilities to provide equal employment opportunities for members of minority groups, Station KWGN-TV also has taken steps to help provide education and training for those members of minority groups interested in gaining employment within the broadcasting industry.  n22

n22 Supra, note 5.  Exhibit E-2.

 

Yet neither in the affidavit or the application is this program, still in the proposal stage, apparently tied to increasing minority employment at KWGN-TV itself.  If appears to be offered rather as a proposal to help increase minority participation in broadcasting generally, rather than primarily directed toward the large Chicano minority in Denver.  Nevertheless, the licensee emphasizes the importance of this program as a part of its equal employment practices -- even though it is by and large beside the point.

Although the Committee has made no allegation of a specific incident of discrimination, there is little doubt that Denver Chicanos are not represented in the station's employment program in significant  [*424]  numbers.  I am deeply disturbed with the Commission's failure to even recognize (let alone investigate) the Committee's complaints.

In conclusion, it is my belief that the Committee has met its necessary procedural burden of a substantial showing in raising material questions of fact which should be investigated further.  The major importance of the issue presented, the failure to ascertain community needs, and serious charges of racial discrimination, lessen the "showing" necessary to trigger the hearing process.  "Procedural requirements depend in part on the importance of the issues before the agency." n23 I am convinced that the Committee has met the required burden and that this Commission should first have its staff investigate the charges further, and, absent a clear showing that the licensee is proceeding to remedy the deficiencies, a full evidentiary hearing is clearly in order. 

n23 Marine Space Enclosures Inc. v. FMC, 137 U.S. App. D.C. 9, 18 (Note 22) (1969).


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