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In Re Objections by ANTHONY KING, SAN FRANCISCO, CALIF.

Concerning request by KSAN, Inc. (KSOL) for change of call signs

 

FEDERAL COMMUNICATIONS COMMISSION

 

35 F.C.C.2d 402

 

JANUARY 14, 1971

 


JUDGES:

          Letter authorized by the Commission


OPINIONBY: LEVY

 

OPINION:

Mr. ANTHONY KING, 2297 Sutter Street, Apt. 107, San Francisco, California 94115.

DEAR MR. KING: This refers to your objection, dated November 9, 1970, to the request of KSAN, Inc., licensee of radio station KSOL, San Francisco, California, for a change of call sign from KSOL to KEST.  Your objection failed to set forth any factual or legal basis for denial of KSAN's request, but merely registered your opposition to the requested change.

The call letters KEST are available for assignment.  Their assignment to KSAN, Inc., would be fully consistent with Commission rules and policies governing call sign changes.  Accordingly, your objection IS DISMISSED, and the call letters KEST will be assigned as requested, effective January 24, 1971.

This action is not connected with outstanding complaints before the Commission against KSAN, Inc.

Sincerely yours,

 

MARTIN I. LEVY, Chief, Broadcast Facilities Division, Broadcast Bureau.


 

DISSENTBY: JOHNSON

 

DISSENT:

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

ABANDONMENT OF MINORITY PROGRAMMING FORMAT

[In re Letters Dismissing Complaints Against KSOL, San Francisco]

The Federal Communications Commission today holds, in effect,

(1) that no public interest question is raised when the licensee of the only San Francisco radio station serving the black community decides to abandon black-oriented programming for what it calls a "middle-of-the-road" format served by numerous other stations,

(2) that the F.C.C. will not rule on a complaint alleging discriminatory employment practices by a radio station which fired six black announcers while a lawsuit challenging such practices is pending in a Federal District Court, and

(3) that the change of a station's call letters from those identified with the previous format in the context of the dispute, is "fully consistent with Commission rules and policies."

Since October 1, 1970, a number of complaints have been filed with the Commission against KSAN, Inc., licensee of radio station KSOL, San Francisco, California, alleging that the station is failing to serve the black community and that it has engaged in discriminatory employment practices and objecting to its attempt to change its call letters.  Related complaints also have been received by the United States Commission on Civil Rights and the Community Relations Service of the Department of Justice, and both agencies have made inquiries to the FCC.

The Commission's response is a decision (1) to ignore the complaints relating to the change of format without offering an explanation for its action, (2) to ignore the complaints of employment discrimination on the ground that related claims are now pending "before the courts," and (3) to send a letter to the complainants notifying them that their objections to the call letter change has been dismissed.  By direction of the Commission, the attached letters were sent to a number of complainants.

I dissent.

KSOL is a Class 4 station (a 1,000-watt daytime, 250-watt nighttime facility) which until September 21, 1970, had been serving the black community with what the licensee characterized as "specialized Negro oriented programming." n1 KSOL was the only radio station in San Francisco which directed its programming primarily at serving the black community.  The only other radio station with black-oriented programming which puts any signal over San Francisco is KDIA, a 5,000 watt, full-time, Class 3 facility assigned to Oakland, California.

The licensee of KSOL places great emphasis on the service provided by KDIA; it argues:

n1 Letter from licensee to FCC, dated September 15, 1970.

 

"...  The Negro community will continue to be served competently by the 100% Negro oriented programming of KDIA.  According to all accepted rating sources,...  KDIA leads KSOL by a wide majority and as a consequence, the change in format on KSOL will have little effect on the over-all Negro listemership...." n2

n2 Id.

Obviously, the complainants do not agree.

The licensee glosses over the fact that KSOL is a San Francisco station and KDIA is an Oakland station by treating the issue as a "San Francisco Bay Area" question.  Thus, it states: "According to the 1969 census, Negroes comprise only 9.7% of the total population of the Greater San Francisco Bay/Oakland area...." n3 This approach ignores the fact that the black communities of Oakland and San Francisco are distinct communities with differing problems and different leaders.  A complainant from San Francisco wrote that "it is an absolute outrage that the only black radio station in San Francisco is no longer in existence.  I feel that this is an injustice to all concerned...." n4

n3 Id.

n4 Letter from Miss Paula Farley to FCC, dated September 25, 1970.

Nevertheless, a letter from the Rev. Robert Davidson, Jr., of the Joint Strategy and Action Commission of the Northern California Council of Churches, addresses itself directly to the Bay Area argument.  The letter states:

"There are more than 6/ AM and FM radio stations serving the San Francisco Bay Area with programs.  Only two of those stations devoted themselves to serving the black community.  The KSOL action reduces by one-half that service. ...  We ask that the Federal Communications Commission judge whether KSOL has made any valid effort at ascertainment of community need which would justify its change in service.  Its new programming duplicates that of at least a dozen stations in the area." n5

n5 Letter to FCC dated October 7, 1970. 

 

That there is community concern seems obvious.

The employment discrimination complaints relate directly to the change of programming format, as the licensee concedes KSOL had previously featured "rhythm and blues" or, as its call letters suggest, "soul" music.  It employed nine blacks -- three full-time and four part-time announcers, a sales manager and a salesman.  On September 21, 1970, the licensee changed its music format and terminated the employment of six of its nine black employees -- the three full-time and three part-time announcers.  In a letter to the FCC, the licensee explained that "with the format change it was decided by management that certain of the announcers would not be able satisfactorily to handle the new format...." n6

n6 Letter to FCC dated October 7, 1970.

It is self-evident that the licensee's request to change the station's call-letters from KSOL to KEST is also directly related to the change of programming format.

In its Report and Order in Docket No. 13961 amending Section IV of the application forms, the Commission stated in paragraph 12:

"Because the proposals [in the renewal form] as to programming and commercial matter are representations relied upon by the Commission in determining whether grant of an application is in the public interest, licensees are given the responsibility to advise the Commission whenever substantial changes occur. ...  Obvious examples of the type of program format alteration which would be reported are a change in format from popular music and news to all talk or all news;...  If the type of change raises serious public interest questions, the licensee will be so advised and an inquiry may be made in order to ascertain complete details...." n7

n7 1 F.C.C. 2d 439, 441 (1965) (emphasis added).

Clearly, the change in format at issue here is a "substantial change" requiring notification of the FCC; the licensee apparently does not dispute this point, since it notified the Commission on its own initiative.  The question presented, therefore, is whether the change raises "serious public interest questions" which should compel further Commission inquiry.

It is a longstanding and well-established policy of the Commission that a licensee's obligation to serve the public interest, convenience and necessity includes a continuing obligation to "seek out and be responsive to a community's needs and interests." n8 Thus, in Sioux Empire Broadcasting Co., we said, in part:

n8 In re Application of City of Camden, released June 13, 1969, FCC 69-644 18 FCC 2d 412 (1969). See Commission En Banc Programming Inquiry, FCC 60-970, 20 RR 1901 (1960); Minshall Broadcasting Co., 11 FCC 2d 796 (1968); Suburban Broadcasters, 30 FCC 1021 (1961); Public Notice Relating to Ascertainment of Community Needs by Broadcast Applicants, FCC 68-847, released August 22, 1968, 13 RR 2ld 1903.

 

"...  As early as 1960 we had occasion to indicate that '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.' Report and Statement of Policy Re: Commission En Banc Programming Inquiry, FCC 60-970, released July 29, 1960, 20 RR 1901, 1915 (1960). (Emphasis added.) The importance of this matter was emphasized in our Report and Order of 1965, amending Section IV of the broadcast application form, where we stressed that 'the Commission has an interest in how the licensee discovers the needs of his community and what he does to meet those needs.' 1 FCC 2d 439, 442 (1965). We again stated in our Report and Order, 5 FCC 2d 175, 178 (1966), amending the television application form, that a broadcast applicant must make a 'diligent and continuing effort to provide a program schedule designed to serve the needs and interests of the public.'

"The primary purpose of this policy is to guarantee 'that the programming service will be rooted in the people whom the station is obligated to serve and who will be in a much better position to see that the obligation to them is fulfilled, thus lessening the enforcement burden of the Commission.' Public Notice Relating to Ascertainment of Community Needs by Broadcast Applicants, FCC 68-847, released August 22, 1968, 13 RR 2d 1903. In that same Public Notice and in Minshall, supra, we have reiterated the elements that must be shown in support of each program proposal.  In line with our long standing policy, each applicant is now required to show his consultations with community leaders to become informed of the real needs and interests of the area to be served, the suggestions that he received in those consultations as to community needs, and the specific programs that he has proposed to meet particular community needs, as he has evaluated them.  n9

n9 FCC 69-213, 16 FCC 2d 995 (1969) (footnote omitted).

 

KSOL is currently operating with a "middle-of-the-road" format although its most recent "Ascertainment of Community Needs" statement on file with the Commission, dated September 1, 1968, is focused almost exclusively on its previous service directed at the black community.  The licensee of KSOL has made no attempt to fulfill its continuing obligation to ascertain the community's needs, tastes and desires as they relate to its change of programming format even though we have held that ascertainment is "the principal ingredient of the licensee's obligation to operate his station in the public interest...." n10 This ignoring of Commission policy clearly raises "substantial public interest questions."

 

n10 Report and Statement of Policy Re: Commission En Banc Programming Inquiry, FCC 69-970, released July 29, 1960, 20 RR 1901, 1915 (1960).

Of course, the licensee makes a number of self-serving assertions; for example:

"It is our belief also that a substantial number of black citizens of the community will be interested in the new KSOL format...

"This middle-of-the-road music policy will expand our broadcasting base to better serve the Bay area residents and the 750,000 inhabitants of San Francisco.  There is only one other San Francisco radio station currently programming a similar format and we respectfully submit that the public need and interest will be more widely served by our instituting this format change." n11

n11 Letter to FCC dated September 15, 1970.

The claim that there is only one other San Francisco station programming a similar format is disputed by the Broadcast Bureau which has told me informally that there are at least five comparable San Francisco stations with a similar "middle-of-the-road format." Moreover, the licensee itself has claimed, by implication at least, that the relevant area is the San Francisco Bay Area, and one of the complainants quoted above, the Joint Strategy and Action Commission, claims that KSOL's "new programming duplicates that of at least a dozen stations in the area." The fact is that the Commission does not have the facts.  As Judge McGowan of the United States Court of Appeals recently declared in another case of Commission avoidance of citizen outrage:

"The truth is most likely to be refined and discovered in the crucible of an evidentiary hearing, and it is precisely a situation like the one revealed by this record which motivated the Congress to stress the availability to the Commission of the hearing procedure.  The controversy that developed in this case is the one that characteristically continues to be blurred until it is subjected to the adversary process-inside the hearing room and not out." n12

n12 The Citizens Committee to preserve the present programming of the "Voice of the Arts in Atlanta on WGKA-AM and FM" v. FCC,     U.S. App. D.C.    ,     F.2d    , No. 23,515 slip opinion, p. 15 (Oct. 30, 1970) [hereinafter "Voice of the Arts"].

 

Instead of using its powers to discover the facts, the Commission has chosen to abdicate.

Another "area of factual inquiry clamoring for the clarifying influence of direct testimony subject to cross-examination" n13 is the licensee's attempt to justify the change of format as "predicated in part on the competitive situation caused by KDIA with its far superior technical facilities." n14 Although KDIA is more profitable than KSOL, the Broadcast Bureau has informed me that KSOL has operated at a net profit for the last two years and has had substantial revenues for its size.  In fact, according to the Bureau, KSOL is operating on a basis that is more profitable than, or at least as profitable as, 10 of the 18 comparable stations in San Francisco, including at least five stations with "middle-of-the-road" programming.  In any event, as the U.S.  Court of Appeals has recently pointed out in another (less compelling) case involving a substantial alteration in a program format incident to a change of ownership of a licensee: "The prospect that a change in programming might increase profits does not... include of its own force the question of who should be the licensee." n15 If the prospect of an increase in profits does not conclude of its own force the public interest question in a change of format incident to a change of ownership, I see no reason why it should have any greater weight in resolving the public interest question raised by a licensee's change of format from minority-oriented programming to "middle-of-the-road" programming.  But, notwithstanding this substantive issue, even if it were decisive, the Commission simply does not have the facts needed for a rational decision regarding profitability either. 

n13 Id., p. 12.

n14 Letter to FCC dated October 7, 1970.

n15 Voice of the Arts, supra note 12, at 11, 12.

When the licensee argues that "the public need and interest will be more widely served by our instituting this format change," n16 its reasoning includes a premise of majority rule in broadcasting which has recently been condemned by the Court of Appeals in the leading "Voice of the Arts in Atlanta" case.  n17 As Judge McGowan said:

n16 Letter to FCC dated September 15, 1970.

n17 Supra note 12.

"The Commission's point of departure seems to be that, if the programming contemplated... is shown to be favored by a significant number of the residents of Atlanta, then a determination to use that format is a judgment for the broadcaster to make, and not the Commission.  Thus, so the argument proceeds, since only some 16% of the residents of Atlanta appear to prefer classical music, there can be no question that the public interest is served if the much larger number remaining are given what they say they like best.

In a democracy like ours this might, of course, make perfect sense if there were only one radio channel available to Atlanta.  Its rationality becomes less plain when it is remembered that there are some 20 such channels, all owned by the people as a whole, classic lovers and rock enthusiasts alike.  The public interest, convenience, and necessity can be served in the one way that it cannot in the other, since it is surely in the public interest as that was conceived of by a Congress representative of all the people, for all major aspects of contemporary culture to be accommodated by the commonly-owned public resources whenever that is technically and economically feasible.  n18

n18 Id. at 10.  (emphasis added).

The Court went on to observe that 16% "is not an insignificant portion of the people who make up Atlanta; and their minority position does not exclude them from consideration in such matters as the allocation of radio channels for the greatest good of the greatest number.  The Commission's judgmental function does not end simply upon a showing that a numerical majority prefer the Beatles to Beethoven impressive as that fact may be in the eyes of the advertisers." n19

n19 Id. at 10, 11.

The licensee refers to the black community, some 238,754 citizens according to its own figures, as "this small group." However, even according to the 1960 census, over 14% of the residents of the "inner city" of the Bay Area are black, and by whatever measure, the black population is certainly " a major aspect of contemporary culture" of the Bay Area.

I trust it is unnecessary to discuss at length the extent to which even this Commission has noted that the broadcasters' special implication in America's race relations goes well beyond its responsibility to other minority groups such as classical music lovers.  n20

n20 Our regulations provide unequivocally that "Equal opportunity in employment shall be afforded by all licensees... to all qualified persons, and no person shall be discriminated against in employment because of race, color, religion, or national origin." 47 C.F.R.   73.125(a).  (emphasis added).  See also, Nondiscrimination in Broadcast Employment, Report and Order released June 6, 1969, 18 FCC 2d 240, 16 RR 2d 1561; Report and Order released June 3, 1970, 23 FCC 2d 430, 19 RR 2d 1571.

Compare the Kerner Commission's emphasis on the media's responsibility and pivotal role in race relations in this country.

"The Commission's major concern with the news media is not in riot reporting, as such, but in the failure to report adequately on race relations and ghetto problems and to bring more Negroes into journalism...  The communications media, ironically, have failed to communicate...  They have not shown understanding or appreciation of -- and thus have not communicated -- a sense of Negro culture, thought, or history." Report of the National Advisory Commission on Civil Disorders, 1968.

The licensee's answer to this is that "The Negro community will continue to be served competently by the 100% Negro oriented programming of KDIA" together with a few black-oriented programs which KSOL says it intends to broadcast.  n21 As indicated above, this is mere conjecture as far as the record before this Commission is concerned, and it is contradicted by a substantial number of complaints.  Moreover, in KDIA's most recent "Statement of AM or FM Program Service," on file with the Commission and dated August 24, 1968, the licensee states: "KDIA is the only Negro oriented radio station in the East Bay Area." In its "Ascertainment of Community Needs," filed as Exhibit 1, the licensee describes "a meeting of a broad cross-section of community leaders from the entire area locally referred to as the 'East Bay,' which includes the cities of Oakland, Berkeley and Richmond." KDIA also claims, in the same Exhibit, that although it does have sizeable audiences in San Francisco, Berkeley, and Richmond, "primary emphasis is placed on serving the city of Oakland as the city of license, which has a population of 35% Negroes...." An examination of the remainder of KDIA's "Ascertainment" statement lends support to this assertion of primary orientation toward Oakland. 

n21 Letter to FCC dated September 15, 1970.

Thus, what the Commission is in fact sanctioning is the silencing of the only radio station directed primarily toward serving the black citizens of one of our most important cities.  To my mind, this not only raises "substantial public interest questions," it is also de facto against the public interest, based on the limited facts which are now before the Commission.

I also believe that there is a substantial basis for Commission inquiry into the charges of employment discrimination.  The licensee claims that the six black announcers were terminated "as a result of the change in format because they were rhythm and blues personalities and the professional skills and experience of the announcers who were terminated were not consistent with the new format...  Ours [KSOL's black announcers]..; in the opinion of management, were not capable of performing in that format because, to the best of our knowledge, none had any prior experience in any field other than black-oriented 'soul' music." n22

n22 Letter to FCC dated November 2, 1970.

 

If find the tone of this reasoning repugnant in its suggestion that blacks are OK for black shows but not for "middle-of-the-road" shows.  KSOL has made no showing as to how the qualifications for the two positions might differ, if in that they should, which I tend to doubt.  Much more disturbing, however, is the fact that there is no suggestion whatsoever that these employees were given a reasonable opportunity to obtain whatever training that might be required for "middle-of-the-road" music; even though our regulations specifically provide that each station "shall establish, maintain, and carry out" an equal employment opportunity program, and that "under the terms of its program, a station shall:

(5) 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...." n23

n23 47 C.F.R.   73.125(b)(5).  See also supra note 20.

 

Clearly, the licensee's conduct in this case can only be interpreted as a flagrant and deliberate violation of this provision, because the licensee not only failed to train the black announcers for the new format, but it also apparently concealed the planned change of format from those employees.

I consider the licensee's suggestion that it took steps to prepare some of its employees for their sudden firing disingenuous at best.  The licensee states:

"Knowing that this formatic change would occur, the license offered to assist those employees who would be affected by the change by sending each of them to the School of Communications Electronics so that they could obtain their first class licenses...  None of the four men involved who indicated their willingness to participate in this schooling completed the course, which of course destroyed the ability of the licensee to replace these men at the time of the formatic change." n24

n24 Letter to FCC dated October 7, 1970.

 

An examination of the licensee's submissions relating to the Communications School reveals that there is not even a hint of warning to the employees that the First Class License course is in any way related to a contemplated change of format or the possibility of sudden termination; in other words, even though the licensee concedes that it knew at least six months ahead of time that a change of format would occur, it apparently concealed that fact from its employees.  Thus, by its failure to be candid with its black employees, the licensee precluded them from taking whatever steps might be necessary to prepare themselves for a new format, and then used the lack of preparation as an excuse for firing them.  In these circumstances, I can only conclude that the licensee is responsible for intentionally creating an excuse for firing six black announcers.  This is simply another "area of factual inquiry clamoring for the clarifying influence of direct testimony subject to cross-examination." n25 However, based on the facts now before the Commission, there is a prima facie case of racial discrimination.

n25 Supra, note 12.

Nevertheless, the Commission majority abdicates its responsibility on this issue as well, ignoring inquiries from the U.S. Commission on Human Rights and the Community Relations Service of the Justice Department with the unprecedented excuse that related claims are now before a federal District Court.  The FCC regulations specifically require that all licensees afford equal opportunity in employment, n26 and we have a responsibility under law to enforce that provision. 

n26 47 C.F.R.   73.125.

Finally, it is apparent to all concerned that the change of call letters is obviously intended to erase the "soul" or "100% black orientation" image of KSOL and is therefore inseparable from the other issues raised by this case.  The Commission majority plays ostrich when it declares, in this context, that the change in call letters "would be fully consistent with Commission rules and policies governing call sign changes."

There is one additional matter which concerns me.  The FCC file on the case contains an unexplained letter from the Oakland Black Caucus to KSOL, dated September 10, 1970, which states, in part:

"For several months, the Oakland Black Caucus have been monitoring your station...

"It has come to the attention of the Oakland Black Caucus that KSOL Radio Station is not attempting nor is it meeting the needs of the black community...

"In fact, KSOL Radio Station takes the black community as a joke.  It does not take it seriously at all...."

Could it be that the white owners of KSOL balked at the increasing social awareness of the black community and took what they saw as the easy way out, rather than face a possible license renewal challenge this year?  This case literally cries out for "the crucible of an evidentiary hearing." n27

n27 Supra, note 12.


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