In the Matter of AMENDMENT OF SECTIONS 73.35, 73.240, AND 73.636 OF THE COMMISSION'S RULES RELATING TO MULTIPLE OWNERSHIP OF STANDARD, FM AND TELEVISION BROADCAST STATIONS
Docket No. 18751; RM-1460.
FEDERAL COMMUNICATIONS COMMISSION
34 F.C.C.2d 889
RELEASE-NUMBER: FCC 72-391
May 11, 1972 Released
Adopted May 9, 1972
BY THE COMMISSION: COMMISSIONER ROBERT E. LEE CONCURRING IN THE RESULT; COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT IN WHICH COMMISSIONER BARTLEY JOINS.
[*889] 1. The Commission has before it for consideration the Notice of Proposed Rule Making and Notice of Inquiry (FCC 69-1286, released November 25, 1969) and the comments filed in response thereto. Comments were filed by the American Bankers Association (ABA), the petitioner in this proceeding and by American Broadcasting Companies, panies, Inc. (ABC); Broadcast-Plaza, Inc. (Travelers' Insurance); Columbia Broadcasting System, Inc. (CBS); Corinthian Broadcasting Corporation (Corinthian); General Electric Broadcasting Company, Inc. (GE); RKO General, Inc. and Time-Life Broadcast, Inc. (RKO/Time-Life); Storer Broadcasting Company (Storer); Taft Broadcasting Company (Taft); and WGN Continental Broadcasting Company, Inc. (WGN).
2. Also, on September 1, 1970, at the request of the ABA, an administrative conference was held at the offices of the Commission. Senior trust officers from 4 large banks orally presented papers on various aspects of trust department operations and responded to questions following the presentations. The ABA also submitted, in response to the Notice of Inquiry, certain statistical data concerning (a) interlocking directorates between the banks and the licensees; and (b) loans by banks to licensees in which they hold the power to vote stock held in their trust departments.
3. The Notice of Proposed Rule Making solicited comments on the following two questions:
A. Is the filing of trust agreements or abstracts thereof, as required by Section 1.613(b) of the Commission's Rules, necessary so that the Commission will have adequate information to enable it to carry out its responsibilities under the Communications Act and other Commission's Rules and policy? If such filings are necessary in some cases, could they be dispensed with partly or [*890] entirely in others, for example by the presumption that unless otherwise indicated a bank holding as trustee has unqualified power to vote and acquire or dispose of the stock of the licensee company?
B. Assuming that banks execute disclaimers of intention to control the management or policy of a broadcast company as to stock held by the banks as trust investments over which they hold the power to determine how the stock will be voted, is the 1% benchmark specified in Sections 73.35(b), 73.240(b) and 73.636(a) (2) a reasonable and proper standard as to stock held by banks in their trust departments, or should a higher figure, such as 3%, be permitted.
4. We shall treat with Question B first. The trust departments of banks are unique entities. They operate under the trust laws of their respective states and act in a number of capacities in their fiduciary functions. The bulk of trust business deals with the management of trusts that are created in many ways. For instance, they hold pension and profit-sharing trusts of companies which are created by contract. In most of these pension and profit-sharing trusts, the bank has the sole power to control the vote of the stock, but there are a few exceptions such as a case in which the trust must invest in the commercial company that sets up the trust account by contract.
5. The remainder of trust accounts in the trust department deal with personal trusts and custody accounts. Personal rusts cover executorships and administratorship, testamentary trusts, inter vivos trust (revocable and irrevocable) and guardianships and committees for minors and incompetents. They must be handled on an individual basis and the purposes of the trusts vary widely. A number of these trusts have a co-trustee, and in such cases, the bank acts as bookkeeper-adviser and has a partial or whole voting right. In the custody and investment advisory accounts, the bank is the holder of record, but the decisions are all made by the owner of the trust assets. Thus, the bank is a bailee agent that acts strictly on instructions.
6. As to the operation of the trust accounts, the bank follows the terms of the trust instrument from which the trust was created. Testamentary trusts are created out of estates and are created for two principal purposes: (a) deferral of tax consequences and (b) to provide for the testator's beneficiaries. The other types of personal trusts are created for many purposes such as care of children, payment of child support, alimony or other marriage settlements, or some other specific purpose. In the trusts, the bank quite often is limited in its investments to stocks on state approved lists. If there is no approved list in the given jurisdiction, the banks follow the "prudent man" rule based on precedents contained in trust and fiduciary law. The ABA contends, in its comments and in the testimony at the administrative conference, that banks acquire and hold stocks for investment purposes and not to control the management or policies of a company, and, in furtherance of this policy endorses the filing, by banks, of disclaimers of the intent to control the managements or policies of such companies.
[*891] 7. The Commission rules now in force limit holdings to 1% in companies that have over 50 shareholders when such 1% holdings in companies exceed the maximum number of stations permitted by the rules. These limitations are 7 AM, 7 FM and 7 TV stations. As to TV, the interest in the 7 TV stations may not exceed an interest in 5 VHF stations. At the time of the ABA fillings, based on a survey of the 19 largest banks, n1 there were violations of the 1% rule by banks that would require divestiture of $976,000,000 involving 25 companies. On the same basis, the divestiture required by the 19 banks at the following percentages would be: at 3%, $256,000,000 (15 companies); at 5%, $84,000,000 (9 companies); and at 10%, $4,000,000 (1 company).
n1 Survey taken as of April 3, 1969.
While we have no data beyond the survey, the foregoing figures adequately indicate the scope of the problems for the purposes of our decision herein.
8. We must also make a threshold decision concerning attribution of ownership as well as aggregation of ownership. As we stated in the previous proceeding in this case (Docket No. 15627, released June 17, 1968, 13 FCC 2d 357), we reiterate that, for the purposes of the multiple ownership rules, we will consider the person or entity that controls the right to determine how the stock is voted as the owner of the stock. Thus, in cases in which banks have any right to vote the stock, irrespective of whom the beneficial holder is, the bank will be considered the owner for the purpose of the multiple ownership rules.
9. As to the question of aggregation of stock, we will follow our attribution rule. Therefore, in cases in which the bank holds any right, partial or whole, to determine how the stock will be voted, the stock will be aggregated to the bank. For example, if the bank possesses the power to vote 3% of the shares of a given company (even though it is held in 1,000 trust accounts), the bank will be considered to have a 3% position in the company. The Commission has adopted aggregation of ownership of stock in trust accounts where banks hold any right, either partial or whole, to vote for the reason that any large position in itself has the potential to be a force in management because banks generally vote the stock one way. The testimony in the comments and at the administrative conference by the trust officers clearly pointed out that the banks (where they hold the sole power to vote) generally vote all the stock of a given company in the same way. (Transcript, Administrative Conference, page 27.)
10. With the questions of attribution and aggregation decided, and with the scope of divestiture at various percentages outlines, we now turn to the question of whether we should raise the 1% benchmark as it applies to banks under the foregoing attribution and aggregation guidelines. The ABA strongly urges that the benchmark be raised to 10%. Traveler's Insurance, RKO, Time-Life and WGN all support the 10% position urged by the ABA. GE, CBS, and ABC support a 5% position; Corinthian supports a benchmark of at least 3%; and Taft and Storer urge an increase in the limitation, but do not state a specific benchmark. The rationale set forth by the ABA is that all existing presumptions [*892] of control in statutes are at least 10% and as high as 20%. Specifically cited as a 20% standard is the alien control ownership provision of Sections 222(d) and 310(d)(4) of the Communications Act of 1934, as amended. Urged as support of the 10% standard are the Public Utility Holding Company Act of 1935 and the Investment Company Act of 1940 (as supplemented by state statutes in California and Ohio). Also urged as a 10% support are the Federal Aviation Act and the Federal Deposit Insurance Corporation Act. The foregoing 10% standards deal with presumption of control and it is urged that the Commission should follow such 10% standard as a presumption of control.
11. The Securities Act of 1934 also set a 10% standard for reporting of insider activities and possible corporate takeovers. However, in December, 1970, the "corporate Takeover Act" was enacted which now requires that reports be filed, with minor exceptions when an investor reaches a 5% position in a company rather than the previous 10% reporting benchmark.
12. Another contention of the ABA is that any benchmark under 10% will have a clear depressing effect on the broadcast industry's ability to raise needed capital in the institutional money markets as well as causing severe hardships in divestitures of existing holdings. The parties that urged a less than 10% benchmark based their positions on the same or similar positions as those urged by the ABA, but the percentages urged would have wiped out any violations as to their own company. The summary thrust of all the comments is that if divestiture is ordered, there will be an "overhang" on broadcast stock which would depress the stock, and that banks may well release all broadcast stocks because of the administrative burdens of attempting to comply with the multiple ownership rules.
13. The Commission has considered the questions raised in the Notice and the testimony submitted in the comments and at the administrative conference and is of the opinion that the benchmark should be raised for the reasons urged by the parties. With rare exceptions, the banks are passive investors who manage the trusts for investment purposes for the beneficiaries and not to control the management or policies of a broadcast company. To help insure this passive role, the Commission will require a disclaimer by banks that hold stock in an amount that exceeds the reporting requirements but is less than the benchmark contained in the multiple ownership rules. We have examined the various so-called "10% control" figures cited in the above statutes and conclude that those standards were a legislative determination as to a particular industry or duty, but that they are not, ipso facto, applicable to broadcasting. In broadcasting, one of the greatest public interest considerations is the preservation of diversity of programming and service. Thus special caution is warranted. Based on all the facts, we conclude that an ownership interest of 5% by banks is consistent with the special caution required, will require some divestiture, but significantly less than at a 3% benchmark, provided an appropriate disclaimer is filed and that the holding remains a passive one.
[*893] 14. The first question (Question A) in the notice dealt with the need for filing of trust instruments or abstracts thereof. All comments supported the tentative conclusion that such instruments generally served no useful purpose and that the Commission could secure the information in cases where such information was necessary to the Commission's processes. We agree that the perfunctory filing of such trust agreements and abstracts, in the main, serve no useful purpose because the reporting on FCC Form 323 (Ownership Report) will indicate the person that has the power to vote the stock. As we said above and in Docket No. 15627 (the mutual fund proceeding) we shall consider the owner to be the person who controls the power to vote the stock. Thus, we shall generally dispense with the filing of the trust agreements as abstracts thereof, but will retain the power to specifically request them if circumstances dictate.
15. The information submitted in response to the Notice of Inquiry indicated that there are at most 6 cases in which a bank official was a director of one broadcast company and that same bank had an interest of 1% or more in another broadcast company. The directorship by the bank official in a broadcast company would cause that individual to be subject to the multiple ownership rules if the bank's numerical holdings are the maximum allowable by the rules. Thus we will attribute stock held by the bank to the bank official that is a director of the broadcast company but not vice versa.
16. With respect to violations that exist under the revised benchmark, the data is nearly three years old, so the extent of the violations is not currently known. We recognize that the trust departments which hold stock in violation of the rules will have to do extensive analysis of individual trust accounts to meet legal and fiduciary duties. We therefore will give a three-year period for banks to bring themselves in compliance with the revised standard. After that time, any violations will be dealt with based on the circumstances present at the time. This may include possible cease and desist proceedings, deferral of pending applications and other such appropriate remedies.
17. In view of the foregoing, and pursuant to authority contained in Sections 4(i) and 303(r) of the Communications Act of 1934, as amended, IT IS ORDERED, That effective June 23, 1972, Sections 1.613, 73.35, 73.240 and 73.636 of the Commission's Rules and Regulations ARE AMENDED as set forth in the attached Appendix, and the proceedings IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
[*895] DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON, IN WHICH COMMISSIONER ROBERT T. BARTLEY JOINS
Monopoly, banking power, and corporate abuses involve issues and arguments that have raged for at least the last 100 years in this country. There is little likelihood that I can add very much new to that dialogue.
Some -- a majority of those who hold power in this country -- believe that criticism of corporate power is, at best, exaggerated; that corporations have contributed far more than they have detracted; that, indeed, they possess a certain special wisdom that should be heeded rather than frustrated.
Others -- generally a minority -- believe that corporate control tends to produce an overemphasis upon economic, rather than human, values; that it reduces individuality; that it makes for the relative irresponsibility of anonymity; and that it makes possible the abuse of power by those heading such institutions.
Today the Commission reaches the rather surprising conclusion that bank ownership of broadcast licensees in conflict with FCC multiple ownership rules is less important than individual ownership also in conflict. I dissent.
Present Commission rules set certain ownership standards for the holding of broadcast stations. For widely held entities, ownership attribution is made when a person holds one percent, or a mutual fund owns three percent. Now for banks it will be five percent. Because I believe those seeking relaxation of the Commission rules have totally failed to show how the public interest will be improved, I cannot support the change the majority adopts.
One looks in vain in the majority document for any discussion of the important issues concerning institutional ownership of the stock of other companies -- questions of control, influence, collusive or parallel behavior where a number of institutions own a company, and the impact of institutional ownership on managerial decisions to expend resources to serve the public. The majority is content to rely on the assurances of non-interference offered by those seeking the benefits of the rule change.
One looks in vain for any suggestion that the views of the Antitrust Division of the Department of Justice were requested, despite the fact that the Division has pending a suit against a bank's trust holdings of the stock of firms which compete with each other. See Business Week, April 4, 1970, at 24.
One looks in vain for any discussion of the issues that have been raised in this preceding by Chairman Patman of the House Banking Committee, or any reference to the work published by that committee. In fact, the delay in concluding this proceeding is principally attributable to the concerns that Chairman Patman has expressed, and the majority has apparently been waiting in hope that his interest would flag. Perhaps the majority now believes it has.
One looks on vain for any discussion of why a one percent rule is applied to individuals, a three percent rule to mutual funds and a [*896] five percent rule for banks. The single unifying thread seems to have been to set the standard in a way that would not require much divestiture. In fact, the Commission does not know if the three percent rule on mutual funds has been complied with. Apparently one licensee, Corinthian, would have settled for three percent here.
While many statutes are discussed, one looks in vain for a discussion of a statute of great significance to bank ownership questions -- the Bank Holding Company Act Amendments of 1970. 12 U.S.C. § § 1841-1850. While this statute sets out a five percent standard for ownership attribution, it does so in the form of presumptions with opportunity for further inquiry.
One looks in vain for any discussion of problems presented by differing geographical or market situations. Surely substantial bank ownership, even of less than five percent, of several close competitors in a state or region should be viewed differently from bank holdings of five percent in widely-scattered licensees. And there is no distinction for bank ownership of network stock, despite the existence of a highly concentrated market where competitors meet each other in a variety of contexts. Nor does there appear to be any recognition that specific factual situations may require special Commission inquiry on its own motion -- in fact it is not clear that the Commission will know about bank ownership situations where the holdings are less than five percent.
It may be that there are no potential problems with treating banks more favorably than mutual funds or individuals. But there has been no demonstration on this record to justify a change in rules to satisfy banks and bank-held broadcasters -- a change adopted only to avoid divestiture.
I. Part 1 of the Commission's Rules and Regulations is amended as follows:
1. In § 1.613, paragraph (b)(3) is amended to read as follows:
§ 1.613 Filing of contracts.
* * *
(b) * * *
(3) Any agreement, document or instrument (i) providing for the assignment of a license or permit or (ii) affecting, directly or indirectly, the ownership or voting rights of the licensee's or permittee's stock (common or preferred, voting or non-voting), such as: (a) agreements for transfer of stock; (b) instruments for the issuance of new stock; and (c) agreements for the acquisition of licensee's or permittee's stock by the issuing licensee or permittee corporation. Pledges, trust agreements, options to purchase stock and other executory agreements are required to be filed: Provided, however, That trust agreements or abstracts thereof are not required to be filed, unless requested specifically by the Commission. Should the Commission request an abstract of the trust agreement in lieu of the trust agreement, the licensee or permittee will submit the following information concerning the trust: (1) name of trust; (2) duration of trust; (3) number of shares of stock owned; (4) name of beneficial owner of stock; (5) name of record owner of stock; (6) name of the party or parties who have the power to vote or control the vote of the shares; and (7) any conditions on the powers of voting the stock or any unusual characteristics of the trust.
* * *
II. Part 73 of the Commission's Rules and Regulations is amended as follows:
1. In § 73.35, NOTES 6, 7 and 8 are redesignated NOTES 7, 8 and 9, respectively, and new NOTE 6 is added, the new NOTE reading as follows:
§ 73.35 Multiple Ownership.
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NOTE 6: In applying the provisions of paragraphs (a) and (b) of this this section to the stockholders of a corporation which has more than 50 voting stockholders, a bank holding stock through its trust department in trust accounts need be considered only if such bank directly or indirectly owns 5 percent or more of the outstanding voting stock: Provided, the bank files a disclaimer of intent to control the management or policies of the broadcast corporation. Holdings by banks shall be aggregated if the bank has any right to determine how the stock will be voted.
* * *
2. In Section 73.240, NOTES 6, 7 and 8 are redesignated NOTES 7, 8, and 9, respectively, and new NOTE 6 is added, the new NOTE reading as follows:
§ 73.240 Multiple ownership.
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NOTE 6. In applying the provisions of paragraphs (a) and (b) of this section to the stockholders of a corporation which has more than 50 voting stockholders, a bank holding stock through its trust department in trust accounts need be considered only if such bank directly or indirectly owns 5 percent or more of the outstanding voting stock: Provided, the bank files a disclaimer of intent to control the management or policies of the broadcast corporation. Holdings by banks shall be aggregated if the bank has any right to determine how the stock will be voted.
* * *
3. In § 73.636, NOTES, 6, 7 and 8 are redesignated NOTES 7, 8, and 9, respectively, and new NOTE 6 is added, the new NOTE reading as follows:
§ 73.636 Multiple ownership.
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NOTE 6: In applying the provisions of paragraphs (a)(1) and (a)(2) of this section to the stockholders of a corporation which has more than 50 voting stockholders, a bank holding stock through its trust department in trust accounts need be considered only if such bank directly or indirectly owns 5 percent or more of the outstanding voting stock: Provided, the bank files a disclaimer of intent to control the management or policies of the broadcast corporation. Holdings by banks shall be aggregated if the bank has any right to determine how the stock will be voted.