McCLATCHY NEWSPAPERS, Sacramento, California
March 8, 1972
JUDGES: Commissioner Nicholas Johnson dissenting; Commissioner H. Rex Lee absent.
This is in reference to McClatchy Newspapers' license renewal applications for Stations KOH, Reno, Nevada (File No. BR-742); KVOR-TV, Stockton, California (File No. BRCT-339); KFBK-AM-FM, Sacramento, California (File Nos. BR-36 and BRH-722); KBEE-AM-FM, Modesto, California (File Nos. BR-2680 and BRH-516); and KMJ-AM-FM-TV, Fresno, California (BR-7, BRH-538, and BRCT-166).
We have reviewed the above-noted license renewal applications and have concluded that McClatchy Newspapers is legally, technically, financially and otherwise qualified to be a broadcast licensee, and that a grant of the applications would serve the public interest, convenience and necessity. Accordingly, we are granting the license renewals for the above-noted stations for the remainder of their normal license terms subject to the condition that the Commission may subsequently take appropriate action in light of the Equal Employment Opportunity Commission's ultimate disposition of the matter discussed below (i.e., EEO complaint TSF-10891).
In doing so, it is observed that your responses to Part III of Section VI of FCC Form 303 disclose that the Equal Employment Opportunity Commission is investigating two complaints of alleged unlawful discrimination in the employment practices of McClatchy Newspapers. One of these complaints is not relevant here, since it was specifically directed against a memorandum of instructions issued by the Managing Editor of the Sacramento Bee. The other complaint (TSF-10891) is related to the employment practices of McClatchy Newspapers, which may also involve its broadcast employment practices.
We are deferring action on this latter complaint to the EEOC, since that Agency has already instituted an investigation into the relative merits of the alleged unlawful practices. However, you are advised to keep the Commission informed of all future developments regarding this complaint (i.e., TSF-10891).
Commissioner Nicholas Johnson dissenting; Commissioner H. Rex Lee absent.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
The Commission today grants McClatchy Newspapers' application for the renewal of two TV stations, four AM stations, and three FM stations in Nevada and California, despite the fact that there are outstanding against McClatchy two investigations by the Equal Employment Opportunity Commission (EEOC) of complaints charging unlawful employment practices. The FCC's reaction to the existence of these investigations is all too familiar, belying our oft-expressed concern for the need for broadcasters to respond affirmatively to the challenge of providing equal employment opportunities. In granting these renewal applications, and not deferring action on the applications pending the outcome of the EEOC investigations, the FCC avoids its statutory and moral responsibilities. I strongly dissent.
Under Section 307(d) of the Federal Communications Act, the Commission grants licenses to broadcast stations for a period of three years or less. After the expiration of the license term, the licensee must come to the Commission and apply for a renewal. If the Commission finds that the renewal would be in the "public interest, convenience, and necessity," then the Commission grants the renewal application, for a period of up to three years. n1
n1 47 USC § 307(d).
If the Commission cannot make the required finding, either because of "a substantial and material question of fact" or "for any reason" other than the presence of such a question of fact, n2 then the Commission must hold a hearing in which it decides whether the license renewal would be in the public interest. n3 Or, the Commission can merely defer acting upon the license renewal application while it awaits the outcome of some outstanding development. Of course, in the meantime, the license rests with the existing licensee. n4
n2 47 USC § 309(3) (1970).
n4 47 USC § 307(d).
In other words, the design of the Communications Act clearly is that a license renewal is not a ministerial act on the Commission's part. This does not mean that the Commission can act arbitrarily or capriciously in any individual case, but it does mean that if there is a cloud hanging over any particular application, the Commission can (and ought to) wait for that cloud either to disperse or to break into rain.
If EEOC informs the Commission in due time that McClatchy is not guilty of any infractions of the Civil Rights Act or our own equal employment opportunity regulations, n5 then we can quickly grant the license renewal applications. If, on the other hand, EEOC informs us that the licensee has violated pertinent laws, then a substantial public interest question will have been raised as to whether the public interest would be served by granting a license renewal application to a licensee who has been found by the Federal Government to have violated the law. In that case, surely it would be our obligation to hold a hearing under Section 309(e) of the Communications Act. We need not await the filing of a petition to deny the license renewal. We may act on our own. n6
n5 47 CFR § § 73.125, 73.301, 73.599, 73.680, 73.793.
n6 47 USC § 309(e).
The facts currently before us are these:
(1) On October 12, 1970, the Sacramento Newspaper Guild, Local 92, filed a complaint against the Sacramento Bee, owned by the McClatchy chain, alleging that a memorandum from the paper's managing editor had stated: "Hereinafter do not assign women reporters to cover men's clubs such as the Elks, Sutter Club, etc." On December 6, 1971, the Director of the San Francisco District Office of EEOC made an official finding of fact that McClatchy was in violation of Title VII of the Civil Rights Act by denying job opportunities to women reporters because of their sex.
(2) On March 29, 1971, EEOC issued a complaint against McClatchy, stating that reasonable cause exists to believe that McClatchy has violated Section 703(a) of the 1964 Civil Rights Act by discriminating against Blacks, Spanish surnamed Americans, American Indians, and Orientals, on the basis of their race, color and national origin, with respect to recruitment, hiring, training, and other terms and conditions of employment.
We have no way of knowing whether or not these complaints issued by EEOC are well-founded. McClatchy may well not be in violation of the 1964 Civil Rights Act. But the EEOC, to whose expertise we admit we refer in this area, has found that reasonable cause exists to support such a belief. We ought at least to await their findings on these complaints.
Are we not part of the same Government? Do we not owe it to the public to whose service we are dedicated to make an elemental attempt to coordinate our actions, where possible, with those of other agencies of the Government?
The majority will claim that if the EEOC complaints are resolved against McClatchy, we still have the authority under Section 312(a) to revoke the station's license. True. But I would advise the disgruntled people who may have faced employment discrimination from this or any other FCC licensee not to hold their breath awaiting that eventuality. And even if such an eventuality were likely, it doesn't get the majority over today's hurdle of finding the licensee - based upon evidence now before us - to be serving the public interest.
Instead of granting these renewal applications, I would defer action pending the outcome of the two EEOC investigations. Any other action represents a mockery of our duties under the law. I dissent.