Ethel C. Hale and W. Paul Wharton v. Federal Communications Commission, Ksl, Incorporated, Intervenor

This statutory review proceeding under the Federal Communications Act, 47 U.S.C. § 151 et seq., relates to the Commission’s renewal, without an evidentiary hearing, of the radio broadcasting license of KSL-AM, a clear channel station broadcasting throughout the Salt Lake City area.1 Section 309(a) of the Act authorizes renewal only upon the Commission’s finding that the “public interest, convenience, and necessity” would be served thereby. Appellants, individual residents of the Salt Lake area, had filed with the Commission letters protesting renewal, and requesting that the matter be set down for hearing pursuant to Section 309(e) of the Act, which reads in part:

If, in the case of any application to which subsection (a) of this section applies, a substantial and material question of fact is presented or the Commission for any reason is unable to make the finding [that the public interest would be served], it shall formally designate the application for hearing * * *.

The Commission, however, determined that there were no substantial questions of fact requiring resolution by means of a hearing, and that it was able to make a public interest finding without the aid of a hearing.

The two matters which require the illumination of a hearing, so appellants assert, are (1) the quality and fairness of the licensee’s programming and (2) the impact upon the public interest of the concentration of ownership in the intervenor of communications and other business interests.2 As to the first, we have examined carefully the assertions made in appellants’ letters to the Commission, and we find them far short of the kind of factual allegations which were brought forward by the protestants in United Church of Christ, note 2 supra. Mainly appellants have attempted to establish that KSL-AM has been broadcasting in violation of the FCC’s “fairness doctrine.” That doctrine, relating to the broadcasting of controversial issues of public importance, requires that a station’s programming present the several viewpoints that have developed around such issues. Its concern is with the scope of coverage of the station’s total programming.3

To establish a violation of this doctrine, appellants must show that specific programs have dealt with controversial issues partially, and, if so, that other programs on the station have not balanced the coverage by presenting the alternative viewpoints.4 While the doctrine does look to the general balance of a station’s programming, proof of a violation must be based on quite specific facts:

Where complaint is made to the Commission, the Commission expects a complainant to submit specific information indicating (1) the particular station involved; (2) the particular issue of a controversial nature discussed over the air; (3) the date and time when the program was carried; (4) the basis for the claim that the station has presented only one side of the question; and (5) whether the station had afforded, or has plans to afford, an opportunity for the presentation of contrasting viewpoints.5

When viewed against this not unreasonable standard, it cannot be said that appellants’ allegations present material questions of fact with respect to fairness doctrine violations, or the calibre of programming generally, that would require a hearing.6

The second issue raised by appellants is of more substance. It rests upon the claim that KSL-AM is part of a business conglomerate so constituted as to create an undue concentration of business and broadcasting influence in the Salt Lake City area communications market. We perceive no disputed factual issues regarding the existence of the conglomerate structure. Those facts, set out in the margin,7 are agreed upon by the parties. The policy questions they raise are applicable to the communications industry as a whole, and are not peculiar to one unit of it.

Appellants do assert that this particular concentration has had ill effects on the communications media in Salt Lake City, and is thus not in the public interest. But here again, to merit a hearing under Section 309(e), appellants must go beyond generalization and allege some specific instances of injury in the immediate context of the intervenor’s operations, not merely that it is unwise for newspapers to be under common ownership with radio and television interests, and for both to be part of a broader business combine. In two recent opinions, involving the license renewals of WCCO-AM 8 and KRON-FM,9 the Commission designated the renewal applications for hearing after the parties protesting the renewals had alleged, in the case of WCCO, that the conglomerate was using the economic power of its newspaper to obtain unique sports events broadcasting rights for its television station and, in effect, to subsidize advertising for its television station; and in the case of KRON, that the conglomerate was using the economic power of its television station to subsidize the subscription campaigns of its newspaper. Appellants hei’e have not made such specific allegations.10

Appellants essentially argue that the fact of the concentration, without further showing, is enough to require a hearing to determine whether the license renewal would serve the public interest. This is in reality a challenge to the wisdom of the Commission’s existing multiple ownership rules,11 which have allowed the granting of licenses to conglomerate structures of the kind involved here. Thus it is that, in the context of this particular renewal proceeding, appellants seek a hearing to effectuate an overhaul of the Commission’s general policy that multiple ownership and resulting concentration are not per se against the public interest. The Commission has, however, embarked upon rule-making in this very area of multiple ownership of AM, FM, and TV operations, 33 Fed.Reg. 5315; and it has initiated investigations into conglomerate ownership. Dismissing informal renewal protests very similar to those made by appellants, the Commission had this to say:

We believe that, in view of this showing, there is no basis for ad hoc action against the licensee on grounds of undue concentration of control of media of mass communications. Rather, any actions in this area as to a licensee such as this would be appropriate only in the context of overall rule-making proceedings. In this connection we point out the outstanding inquiry on conglomerate ownership and the specific rule-making proceeding, FCC Docket No. 18110.12

There is a rational foundation for the Commission’s position that a basic change in policy such as appellants here seek is better and more fairly examined and considered in rule-making proceedings, where the inquiry can be thorough and where all interested parties can participate. Appellants’ protests seem to us to assert that undue concentration of communications media has a tendency towards adverse impact on the public interest which warrants a policy of flat prohibition without reference to whether there are incidental injuries in fact. But this is the very question which the Commission is presently pursuing in actual rule-making and in investigations looking toward rule-making. That pursuit may be more effectively and properly carried on there than by setting this renewal application down for hearing with a view to a change in policy with respect to this particular applicant.

Affirmed.