In Re Complaints by PROF. DONALD W. HENDON, UNIVERSITY OF NEVADA Concerning
Channel 13 of Las Vegas, Inc., station KSHO-TV
FEDERAL COMMUNICATIONS COMMISSION
33 F.C.C.2d 789
RELEASE-NUMBER: FCC 72-137
FEBRUARY 16, 1972
[*789] GENTLEMEN: This refers to complaints against you which were considered by the Commission before its grant of your applications for renewal of the license of Station KSHO-TV and for transfer of negative control of the licensee.
Complaints were received from Professor Donald W. Hendon of the University of Nevada at Las Vegas alleging (1) that you were not carrying ABC network programs in their entirety, and (2) that the licensee attempted to bring about termination of Professor Hendon's employment by the University because he had filed the first complaint with the Commission.
The Commission conducted a filed investigation into both of Professor Hendon's complaints.
Information obtained regarding failure to carry network programs in their entirety is summarized in a Notice of Apparent Liability issued to you on January 26, 1972 for violation of Section 317 of the Communications Act of 1934, as amended, and Sections 73.654 and 73.1205 of the Commission's Rules.
The investigation into the allegation that you sought to bring about termination of Professor Hendon's employment included interviews with Mr. Hendon, the President and other officials of the University, and the Vice President and General Manager of the licensee. A copy of a letter from a major stockholder of the licensee to the University was obtained. The writer of the letter submitted an affidavit regarding his alleged intentions in writing the letter and the circumstances which he states prompted the writing of it.
Careful consideration of all of the information thus obtained resulted in our determination that the evidence does not justify designation of your applications for hearing.
We wish to remind you and all other licensees, however, that intimidation or harassment of persons for filing complaints with the Commission is contrary to the public interest in that it tends to discourage expression of public opinion on the service being rendered by broadcast stations. Appropriate sanctions will be imposed whenever evidence is available to establish that a licensee engages in such practices.
[*790] Commissioners Robert E. Lee and H. Rex Lee absent; Commissioner Johnson dissenting and issuing a statement.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENTBY: DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
A private citizen investigates programming practices of a television station and presents evidence to the FCC sufficient to induce a rare FCC filed investigation and resulting maximum $10,000 fine against the station. That citizen also charges that the station and its stockholders subsequently pressured the citizen's employer to fire him; there is strong evidence to substantiate the charges; the citizen loses his job, and the Commission concludes that a renewal application should be granted without even a hearing on this issue.
BACKGROUND OF THE CASE
Professor Donald W. Hendon, formerly of the University of Nevada at Las Vegas, and now at Columbus College, Columbus, Georgia, undertook a survey of the advertising practices of TV stations in Las Vegas. He concluded that Las Vegas stations, including KSHO-TV, Channel 13, were "clipping" the ends of network programs in order to add additional local commercials. The Commission, after a field investigation, has today proposed a $10,000 fine against KSHO-TV, and in addition sent a pre-hearing letter to KORK-TV asking it to respond to charges of clipping and bringing pressure at the University of Nevada in an effort to have Professor Hendon fired or forced to discontinue his activities in monitoring the performance of KORK-TV.
In my view the Commission's action in proposing a $10,000 fine for clipping network programs is a totally inadequate penalty for KSHO-TV's activity. The station has apparently carried out a systematic fraud on the ABC network and its viewers, affirming that programming had been carried when in fact it had not, and dropping parts of programs its viewers were entitled to see, including programming required to be be broadcast by FCC rules (sponsorship information). I believe sufficient material has been alleged by Professor Hendon, and collected by our filed investigation, to require a hearing on the extent of clipping, and the true state of affairs with respect to Professor Hendon's other allegations. I do not understand how the Commission can find the public interest to be served by this renewal and transfer until the issues have been explored in hearing.
It is no argument to say that the practice of clipping is widespread, or that the Commission has not explicitly ruled on the question. From my mail I know that many viewers are convinced they are being deprived of programming because stations overrun programming with their own commercials. Our own staff indicates the practice may be widespread and that it is wrong. I believe a renewal hearing would be required even if clipping were the only issue, but it is not.
CHARGES OF HARRASSMENT AND INTIMIDATION
The University of Nevada at Las Vegas was hoping to secure some surplus broadcast equipment from KSHO-TV at the same time KSHO-TV learned of Professor Hendon's investigation and charges. One of KSHO-TV's senior officers and major shareholders wrote the University complaining about Professor Hendon's work and indicating that the surplus equipment he controlled would not be available to the University because the University had permitted Professor Hendon's inquiry. As for the surplus KSHO-TV equipment, not then available because of the station's tax loss status, its future availability depended on what the University regents did about Professor Hendon. KSHO-TV also told the University Professor Hendon had solicited a research contract with the station, inferring that Professor Hendon's charges were in retaliation for his failure to get station financing. Professor Hendon has flatly denied the allegation as a lie. Professor Hendon was told by the Chairman of his department that the University administration would be unhappy about the complaints from KSHO-TV, and that in view of the circumstances he should look for a new job. Similar charges of pressure by another Las Vegas station have resulted in inquiry by the Commission in a pre-hearing letter adopted today. I cannot understand why in one instance of alleged intimidation, the Commission sends a pre-hearing letter and in another -- involving clipping as well -- the charges are whitewashed.
The basic problem in this case is that a contract for the transfer of negative control of the station runs out February 1, 1972, and unless the Commission gives complete approval, the contract will be terminated. We have rushed the investigation, we have rushed the preparation of materials for the Commission, and now we rush through the approval. For the other station in the market against whom intimidation charges are made, we have more time, and also additional evidence involving other commonly owned stations. I would set KSHO-TV's renewal application for hearing on both the clipping and harassment issues, where the truth of the disputed facts could be tested under oath and cross-examination, and I would hold the proposed transfer in abeyance.
The rise of private attorneys general in broadcast regulation has been an arduous one. The Commission, with its meager resources, relies almost entirely on private citizens to bring matters to its attention. Rarely is a Commission proceeding against a licensee begun unless evidence is first presented from outside by interested citizens.
In addition, private citizens face substantial barriers. A citizen is expected to make a complete evidentiary case based on his own investigation. Often he faces a hostile Commission. Delays eat into his limited resources. Many of his most important victories have been won in court over vigorous Commission opposition. But he is having an increasing impact -- in renewal, transfer, and revocation proceedings, in agreements and negotiations with stations, and in rulemaking/policy making before the Commission. But now he faces a new barrier. If he dares to complain about a station, he may lose his livelihood even though the Commission agrees his charges are correct. The Commission will do nothing to protect him. The Commission's record of hostility toward private attorneys general helping it to do its Congressionally mandated job is intact.