In Re Applications of FORT COLLINS BROADCASTING CO., INC. For Renewal of Broadcast License for
Stations KIIX-AM-FM, Fort Collins, Colorado
File Nos. BR-3761 and BRH-1734
FEDERAL COMMUNICATIONS COMMISSION
38 F.C.C.2d 707
RELEASE-NUMBER: FCC 72-1197
December 29, 1972 Released
Adopted December 21, 1972
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT. COMMISSIONER HOOKS DISSENTING.
[*707] 1. The Commission has before it for consideration (i) the above captioned license renewal applications, filed by Fort Collins Broadcasting Co., Inc. (Fort Collins); (ii) petitions to deny the above captioned license renewal applications, filed March 16, 1971, by the Colorado Committee on the Mass Media and the Spanish-Surnamed, Inc. (Committee); and (iii) Fort Collins' opposition to the petitions to deny.
2. To place this proceeding in proper perspective, it is noted, by way of background, that the Commission, on September 11, 1970, consented to the voluntary assignment of the licenses for KIIX and KIIX-FM from Poudre Valley Broadcasting Co., Inc. to Fort Collins Broadcasting Co., Inc. The assignment of license applications were consummated on September 21, 1970. Then, on January 5, 1971, the new licensee timely filed applications for renewal of the broadcast licenses of KIIX and KIIX-FM. These licenses, along with all other broadcast licenses in the State of Colorado, were scheduled to expire April 1, 1971.
3. Pursuant to Section 1.580(i) of the Commission's rules (47 C.F.R. § 1.580(i)), a petition to deny a Colorado broadcast renewal application was required to be filed on or before March 1, 1971. Unable to meet this deadline, the Colorado Committee filed a petition requesting a 60-day extension of time to file petitions to deny 46 Colorado broadcast renewal applications, including those for KILX and KIIX-FM. The Commission, by Memorandum Opinion and Order adopted March 4, 1971, 28 FCC 2d 375, denied the requested 60-day extension of time on the grounds that the Committee had shown no basis therefore. Nevertheless, since the Commission noted that it was setting forth a "new mood", the Committee was granted an extension of time until March 12, 1971, within which to file its petitions to deny.
[*708] 4. Unable to meet the March 12th deadline, the Committee, by letters dated March 12 and 14, 1971, requested a further extension of time until March 19, 1971, or, alternatively, March 15, 1971. The Commission, by letter dated March 17, 1971, FCC 71-289, denied the Committee's alternative request. In the meantime, however, on March 16, 1971, the Committee filed petitions to deny the license renewal applications for Stations KILX and KIIX-FM. In short, the Committee maintains that the Commission should designate for evidentiary hearing KILX and KIIL-FM's license renewal applications on the grounds that Fort Collins has: (a) failed to maintain employment practices which avoid discrimination against employees and applicants on the grounds of national origin; (b) failed to ascertain the needs of the public, particularly of the Spanish-surnamed community; (c) violated the Commission's rules regarding the filing of time-broker agreements; (d) violated the Commission's rules regarding making available for public inspection the stations' license files; and, (e) demonstrated lack of good character by the use of threats and harassment tactics in an attempt to discourage citizen action in broadcasting.
5. Each of the Committee's allegations, and Fort Collins' responses thereto, will be discussed below. At the outset, however, it is noted that the Committee's petitions to deny were filed on March 16, 1971, four days after the extension of time granted by the Commission. The petitions, therefore, do not meet the requirements with respect to timeliness and are, thus, procedurally defective. Accordingly, the Committee's petitions to deny will be dismissed as formal petitions to deny filed pursuant to Section 309(d)(1) of the Communications Act of 1934, as amended (47 U.S.C. § 309(d)(1)), as implemented by Section 1.580(i) of the Commission's rules. However, due to the nature of the matters raised by the Committee, we have elected to treat the petitions as informal objections filed pursuant to Section 1.587 of the Commission's rules (47 C.F.R. § 1.587).
6. Section 73.125 and 73.303 of the Commission's rules (47 C.F.R. § 73.125, 73.303) provide that licensees of standard and FM broadcast stations shall give all persons equal employment opportunities, and shall not discriminate against any person because of race, color, national origin, religion, or sex.
7. The Committee maintains that Fort Collins is guilty of discriminatory employment practices in violation of Section 73.125 and 73.303. In support of its position, the Committee submits that Larry Mendoza is not an actual employee of KIIX-AM-FM but an independent contractor operating under a brokered-time agreement with the stations (see paragraphs 13-15, below). The Committee also submits that two other employees claimed to be American Indians by Fort Collins are, "... apparently, only nominally Indians with few if any ties, ethnic or cultural, with the Indian community." The Committee also questions the employment status of Miss Valdez, stating that it was unable to elicit from the station manager any details concerning her position with the station.
8. Fort Collins became the licensee of KIIX-AM-FM on September 21, 1970, approximately three months before filing the stations' [*709] pending license renewal applications, and approximately five months before the Committee filed the instant petitions to deny. According to Fort Collins, KIIX-AM-FM employ a total of nine (9) persons, two of whom are Spanish-surnamed Americans (namely, Larry Mendoza and Miss Valdez) and two of whom are American Indians (namely, Francis Lilly and J. J. McPartrin). Fort Collins submits that Mr. Mendoza, a blind Mexican American, does a one-hour, five day per week, Spanish language program consisting of music, news, commercials and public service material of interest to the Mexican American community. Fort Collins also states that Miss Valdez assists Mr. Mendoza by converting his material to braille; and, further, since Mr. Mendoza's program is conducted in Spanish, monitors his program to assure proper licensee control. With regard to Miss Lilly and Mr. McPartrin, Fort Collins submits that they are American Indians and that both have been employed since the licensee purchased KIIX-AM-FM.
9. In view of the above, we do not believe that the Committee's allegations regarding Fort Collins' employment practices warrant further exploration in an evidentiary hearing. To warrant an evidentiary hearing on an employment discrimination issue, a petitioner must go beyond allegations such as those submitted herein and at least establish with some degree of specificity that the licensee has followed an exclusionary pattern or otherwise discriminated against applicants or employees because of race, color, religion, national origin, or sex. It is clear here that the Committee has fallen short of establishing with any degree of specificity any such pattern or instances of discrimination subsequent to the licensee's acquisition of KIIX-AM-FM.
10. The Committee also maintains that Fort Collins' community survey is inadequate. The Committee notes, in support of its position, that the Spanish speaking community represents eight per cent of Fort Collins' 43,000 total population. Recognizing that Fort Collins' survey of community leaders gives pro-rata attention to the Spanish speaking community, the Committee nonetheless states that such attention may be insufficient to meet the special obligations a licensee has to a minority group. The Committee also takes issue with Fort Collins' general public survey asserting that the telephone method utilized was inadequate in that the licensee failed to give pro-rata attention to the Spanish speaking community.
11. Fort Collins, in opposition, notes that its community survey was approved by the Commission when it consented to the voluntary assignment of KIIX-AM-FM's licenses. Briefly, in its portion of the aforementioned assignment application, Fort Collins submitted a list of 15 community leaders interview regarding community problems. Fort Collins also conducted a survey of 100 members of the general public. As a result of these surveys, Fort Collins enumerated the various community problems ascertained and proposed programming responsive to those problems. In this latter respect, it is noted that, after the assignment of licenses was granted to Fort Collins, the licensee expanded the stations' one-hour Spanish language program from one day per week to five days per week, and that it proposed to devote other weekly air time to present programming relevant to minority interests.
[*710] 12. The Committee did not file any objections concerning Fort Collins' community survey at the time the assignment applications for KIIX-AM-FM were pending before the Commission, and we are of the opinion that petitioner has not shown any unusual, compelling, or extraordinary circumstances which justify a re-evaluation of the licensee's ascertainment efforts. In short, in view of the size of Fort Collins' staff, we are satisfied that the licensee has ascertained the problems of its proposed service area from a representative cross-section of persons in that area -- including the Spanish-surnamed community, has effectively evaluated the problems ascertained, and has proposed programming to meet those problems. We conclude, therefore, that there is no necessity for a hearing on the basis of the Committee's allegations regarding Fort Collins' ascertainment efforts.
13. Section 1.613(c) of the Commission's rules (47 C.F.R. § 1.613(c)), requires a licensee to file with the Commission any "[contracts] relating to the sale of broadcast time to 'time brokers' for resale." One who buys time from the broadcaster and resales the time to advertisers or others is a time broker. United Broadcasting Co. of New York, FCC 65-52, 4 RR 2d 167, 173 (1965).
14. The Committee maintains that Fort Collins has entered into a time brokerage agreement with Larry Mendoza, that this agreement is oral in violation of Section 1.613(c), and that the agreement constitutes a discriminatory pricing practice since advertisers on Mr. Mendoza's program are charged higher rates than other advertisers are charged. The crux of a time brokerage agreement is the sale of time by the station to the time broker. The Committee has not presented any facts which would indicate that Fort Collins has sold time to Mr. Mendoza or that Mr. Mendoza has bought time from Fort Collins. Radio Station KAYE, 2 FCC 2d 440 (1966). n1 On the other hand, Fort Collins' submission shows that Mr. Mendoza presents a one-hour Spanish language show five days per week and that he sells advertising time on this show, as well as other programs, and receives a commission for the success of his efforts. The mere selling of advertising time does not constitute a time brokerage arrangement.
n1 Assuming, arguendo, that Mr. Mendoza has a time brokerage arrangement with Fort Collins and that the licensee has failed to file a contract in accordance with Section 1.613(c), such an isolated violation of the Commission's rules would be insufficient to designate for hearing KIIX-AM-FM's license renewal applications. Instead, other administrative sanctions, such as a forfeiture, would be more appropriate.
15. Another characteristic of a time brokerage arrangement is that the buyer of the time bears the risk for its resale; that is, he is directly liable to the licensee for payment of the time. WGOK, Inc., 2 FCC 2d 245 (1965). The Committee presents no facts suggesting that Mr. Mendoza would be liable to Fort Collins for any time he was unable to sell. We note, in this connection, that the advertising rates, billing, collection and all other business associated with Mr. Mendoza's program are handled by Fort Collins. We also note that the Committee has failed to submit any evidence that advertisers on Mr. Mendoza's program are charged higher rates than other advertisers are charged, whereas Fort Collins' submission shows that advertisers on Mr. Mendoza's [*711] program are charged three to five dollars per announcement, depending on the number of commercials purchased, just as in other time segments. Finally, contrary to the Committee's allegation, Mr. Mendoza's program is logged in accordance with the Commission's rules.
PUBLIC FILE -- HARASSMENT
16. In addition to the foregoing, the Committee contends that a grant of the above-captioned renewal applications would not be in the public interest because Fort Collins does not possess the requisite good character qualifications. In support of this contention, the Committee asserts that Fort Collins failed to make available for inspection the stations' files when so requested on March 9, 1971, but, instead, raised questions about the credentials of the Committee's representations. While the Committee notes that the public file was made available on March 10, 1971, it nevertheless maintains that Fort Collins' violation of the Commission's applicable regulation "not only demonstrates the stations' failure to operate in the public interest, but also is an indictment of the licensee's character and commitment to the policies of the federal law." The Committee also asserts that Fort Collins used threats and harassment tactics in an attempt to dissuade the Committee from filing its petition. In this regard, the Committee notes that Fort Collins threatened to file suit against the Committee for defamation if it did not withdraw its petitions and, moreover, broadcast an editorial wherein the Committee was "blasted."
17. In opposition, Fort Collins acknowledges that it threatened to file suit against the Committee for defamation but has delayed such action on the advice of counsel pending Commission action on the Committee's petitions. Fort Collins also notes that it broadcast and editorial regarding the Committee's petitions. In this respect, however, Fort Collins states that the Committee was offered time for reply and that the Committee refused this offer. Concerning the Committee's other allegation, the licensee asserts that "[any] statement that the licensee was reluctant to show public information is absolutely false." Rather, the licensee states that the Committee was "shown every single document they asked for, and without hesitation."
18. We have carefully reviewed the allegations set forth in paragraphs 16 and 17 and, based upon the facts presented, do not believe that a hearing is warranted. We have examined the editorial broadcast by Fort Collins on March 6, 1971, and we find that it in no way attempts to discourage the Committee from expressing its grievances to the Commission. The editorial merely gives Fort Collins' opinions as to the merits of the petitions to deny and questions the responsibility of its authors. Moreover, we note that the Committee was offered reply time by Fort Collins, which was declined. With regard to Fort Collins' alleged harassment tactics, we must take into account two considerations: (1) licensees, as do all individuals, have the right to pursue any legal remedies they may have at their disposal; and (a) the Act is especially designed so that the Commission's processes are available to members of the public and, therefore, caution should be [*712] exercised by licensees so as not to hinder public participation. Obviously, Fort Collins, acting like any other potential litigant, believed in good faith that it could advise the Committee that it might file suit. Further, Fort Collins' actions were undoubtedly influenced to a degree by the fact that it had just recently purchased KIIX-AM-FM and felt that the Committee's charges were unjustified. Under these circumstances, and particularly since this is a matter of first impression, we do not believe that these facts reflect adversely on the licensee's character qualifications. But we do stress that broadcast licensees should exercise great care and caution in any statements or threats to petitioners that if they file or maintain their filing, they may be subject to suit. For, such notification may discourage access to this Commission, and we certainly do not wish to make the matter turn on the agency's judgment of the reasonableness or good faith of the threat of suit. In our view, the most appropriate course is therefore generally to refrain from any threat of suit by a broadcast licensee in these circumstances at least until the matter is concluded by the Commission.
19. Finally, with respect to the question of compliance with Section 1.526 of the Commission's rules, this Commission is constantly confronted with conflicting claims regarding the availability for public inspection of a station's renewal application and related documents. Here the Committee claims that its representatives were denied access to Fort Collins' public files on March 9, 1971. Conversely, Fort Collins claims that this allegation is absolutely false. One fact is clear: the Committee admittedly was able to inspect Fort Collins' public file on March 10, 1971. Therefore, we consider this matter closed. However, we wish to emphasize that licensees should not deny the examination of their renewal applications by public groups. Rather, such files should be made available upon request and every reasonable effort should be made to facilitate examination of the application by citizens; this includes, of course, provision of a desk or other writing surface unless that is impossible. These requirements must be observed whether or not the person examining the application is sympathetic to the station.
20. Section 309(d) of the Communications Act provides for the grant of a license renewal application where the Commission finds, after full consideration all pleadings, that there are no substantial and material questions of fact and that a grant of the application would be consistent with the public interest. Section 309(d) also provides that where a petition to deny is filed it must contain specific allegations of fact sufficient to show that a grant of the application would be prima facie inconsistent with the public interest. Where the Commission finds that such a showing has not been made, it may deny the petition. Accordingly, based upon our review of Fort Collins' renewal applications and all the pleadings filed in this proceeding, we find that The Colorado Committee on the Mass Media and Spanish-Surnamed, Inc. has failed to raise a substantial and material question of fact which establishes a prima facie case for denial of KIIX-AM-FM's licenses. We also find that a grant of Fort Collins Broadcasting [*713] Co., Inc.'s license renewal applications for KIIX and KIIX-FM would serve the public interest, convenience and necessity.
21. In reaching our conclusions, we are not unaware of the concern being expressed by The Colorado Committee and other minority groups about the responsiveness of the broadcast media to their problems. Hence, we note with concern the fact that petitioners herein have filed petitions to deny the license renewal applications of several stations located in Colorado. We also note with concern that similar petitions have been filed against many stations in other states. The Commission, of course, cannot waive or ignore the pleading standards set forth in Section 309(d) to accommodate petitioners. Clearly, if members of the public choose to wait until the end of a license term and then petition to deny renewal of license, they must meet the strict requirements of Section 309(d). This does not mean however, that members of the public are left without the means to improve local broadcast service. We have found that cooperation at the local level is the best and most effective method of resolving local problems and improving local service. Accordingly, we wish to reaffirm our prior expression of policy approving community-broadcaster discussions throughout the license term. Obviously, while under an obligation to ascertain and program for community problems, no broadcaster can be aware of everyone's needs all the time. Therefore, interested citizens who feel a station's performance is inadequate should so advise the broadcaster to provide him the opportunity to consider their ideas and suggestions. Such discussions will, of course, be more effective if conducted throughout the license term and not only at renewal time.
22. Accordingly, IT IS ORDERED, That the petitions to deny filed by the Colorado Committee on the Mass Media and Spanish-Surnamed, Inc., ARE DISMISSED, and when considered as informal objections ARE DENIED.
23. IT IS FURTHER ORDERED, That the above-captioned license renewal applications for Stations KIIX and KIIX-FM, filed by Fort Collins Broadcasting Co., Inc., ARE GRANTED.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
Fort Collins Broadcasting Company's application to renew its license for stations KIIX (AM and FM), Fort Collins, Colorado, has been challenged by the Colorado Committee on the Mass Media and Spanish Surnamed, Inc. (Committee). Among other things, the Committee's petition to deny charges the licensee with harassment. Petitioners contend that the licensee did not make its station file available when requested. Further, petitioners allege that the licensee, when confronted by the Committee's inquiries and petition to deny, broadcast an editorial against the Committee and threatened to sue the Committee for defamation if it did not withdraw its petition.
Fort Collins admits that it threatened the Committee with a defamation action, admits that it broadcast an editorial against the Committee [*714] (to which it invited the Committee to respond), but denies that it was reluctant to show the Committee its public file.
The Federal Communications Commission, announcing out of one side of its collective mouth that broadcaster harassment of citizens groups will not be tolerated, nevertheless grants the licensee's renewal application. At first blush, those two acts might appear inconsistent. Upon more studied analysis, they appear down right irreconcilable.
The majority explains that the licensee, in threatening petitioners with a defamation suit, was merely pursuing the legal remedies at its disposal. Yet, the majority does not designate this matter for a hearing in order to determine the licensee's motives. And, indeed, it seems fair to suggest that those motives were questionable, since the licensee's counsel apparently advised against bringing the defamation action at least until after the FCC's renewal of the station's license.
The majority, however, is obviously not concerned with such harassment. Nor is it troubled by the Committee's claim that the licensee initially refused to make its station file public. The majority notes that petitioners were eventually shown the file, and that ends the matter.
The difficulty with this myopic approach is that when one considers the cumulative effect of the licensee's conduct (i.e., threat of a law suit, refusal to make the station's public file available, and an editorial launched against petitioners), one cannot help but conclude that the licensee was attempting, through coercive means, to head off the petitioner's challenge. Such harassment tends to defeat the entire purpose of this Commission's rules regarding citizens' complaints and petitions to deny.
The majority, of course, does not like those rules anyhow, and does not appreciate the various concerned citizens groups that seek to have their communities' broadcasters better serve the public interest.