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File No. BR-4081




16 F.C.C.2d 340 (1969); 15 Rad. Reg. 2d (P & F) 458




January 15, 1969 Adopted





[*340] 1. This matter coming on for consideration by the Commission and there being an equally divided vote of the Commissioners participating thereon;


2. It is ordered, That the petition for reconsideration Is denied.







1. The Commission has before it the "Petition for Reconsideration" filed November 7, 1968 by Ethel C. Hale and W. Paul Wharton directed against the Commission's action of October 4, 1968 granting the application of KSL, Inc., for renewal of license of station KSL, Salt Lake City, Utah.


2. In order to better understand this situation, a statement of the pleadings is necessary:


July 31, 1968. -- The Commission received a letter dated July 29 from Ethel C. Hale and W. Paul Wharton of Salt Lake City, Utah. The Writers objected, among other things, to renewal of the license of KSL stating that the station serves the interests of its licensee "to the exclusion of serving equally other segments of the public." The letter also accused the licensee of serving the economic interests of some of its directors as well as related enterprises. Petitioners criticized the station's policy with respect to news broadcasting, religious programming, editorializing and alleged that the station favors the interests of its advertisers over the listening public.


August 14, 1968. -- The Commission received another letter dated August 10 from Miss Hale and Mr. Wharton. Petitioners submitted information on the corporate interrelationship between the licensee, other broadcast stations, newspaper interests, and, The Church of Jesus Christ of Latter-day Saints. A list of [*341] the business interests of the officers and board of directors of KSL, Inc., was appended. The complainants asserted that the information showed a "dominant influence by the economic corporations of The Church of Jesus Christ of Latterday Saints (LDS, Mormon)" and that this is "* * * inimical to the interest and well being of citizens in the area of their influence."


August 30, 1968. -- The Commission sent KSL, Inc., a copy of the contents of the letter received July 31, insofar as it pertained to KSL and asked for its response to the complaints.


September 16, 1968. -- The Commission received a reply from KSL, Inc., in which it answered the allegations, stating that instead of controlling the content of news KSL employs three national wire services and receives news from its Washington news bureau, among other sources. In response to the allegation that it served the interest of the church, KSL replied that it has had a long-standing and well-established policy of fairness and equal treatment to all segments of the community.


September 27, 1968. -- The Commission sent a copy of the August 14 letter from Hale and Wharton to KSL for comment. KSL was advised to send copies of all further correspondence on this matter to the complainants.


September 30, 1968. -- The Commission received another letter from complainants which essentially reiterated their previous complaints against the station.


September 30, 1968. -- The Commission received a letter from KSL, Inc., stating that its Washington counsel had noted the August 10 letter in the license file and also that the license for renewal of KSL did not appear on the public notice listing those Utah stations whose licenses were renewed, which notice was released on September 26, 1968. KSL thereupon replied to the allegations contained in the August 10 letter as follows: The information contained in the letter with respect to other business interests was well known to the Commission and evinced no violation of any Commission policy or rule. KSL pointed out that there are other stations in the Salt Lake City market which are not owned or controlled by the Mormon Church; that there are two competing daily newspapers and six weekly newspapers in the Salt Lake City area, only one of which is owned by the Mormon Church, and that the coowned newspaper and broadcasting station are under separate management and compete vigorously with all media in the area. It discussed generally the right of religious organizations to become licensees of broadcast stations an the fact that newspaper ownership of broadcast interests does not bar grant of a broadcast license. Finally, in answer to arguments that the station favors the interests of the Mormon Church, the licensee referred to panel programs featuring spokesmen for both sides on a "liquor-by-the-drink" referendum despite the editorial position of the station and the position of he Mormon Church opposing adoption of he referendum. Licensee also referred to the fact that businesses owned or associated with the Mormon Church pay regular advertising rates and are afforded no special treatment, and in fact, according to a recent station survey, purchase more time on competing stations than on KSL.


3. On October 4, 1968, after carefully considering all of the material submitted in this matter, the Commission determined, on balance, that a grant of the application for renewal of license for station KSL would serve the public interest, convenience and necessity and adopted a letter directed to Miss Hale and Mr. Wharton explaining the reasons for the action. Three Commissioners voted to grant the KSL renewal and one Commissioner dissented. One Commissioner was present but did not participate.


4. After the grant of the renewal, the Commission received the following documents:


October 17, 1968. -- Miss Hale and Mr. Wharton in a letter dated October 15 entitled "Petition for Reconsideration of Decision" asserted they had not had sufficient time to rebut the replies filed by KSL, Inc. They pointed out that they were private citizens and were trying to collect data to substantiate their claims. They questioned the date on which the Commission acted on the renewal [*342] application; whether or not the application was voted on by a majority of the Commission; and, whether participation of Chairman Hyde was proper because he is a member of the Mormon Church. They also inquired as to whether the Commission complied with section 5(e) of the Communications Act by informing Congress that the KSL application had been pending for over 3 months and whether the rights conferred by section 6(a) of the Administrative Procedure Act applied to them.


October 28, 1968. -- The Commission replied by letter to the above communications pointing out the requirements of section 405(a) of the Communications Act and section 1.106 of the Commission's rules relating to the requirements for the filing of petitions for reconsideration. Copies of these sections were included with the letter and the sections were explained.


November 4, 1968. -- The Commission received from Miss Hale and Mr. Wharton a letter purporting to be a response to KSL's letters of September 16 and September 30, 1968, which were received and considered, prior to action on KSL's renewal application. The main contensions may be summarized as follows:


Religion. -- "The religious question overshadows all local problems." They summarized their position by stating "We are not asking for less RELIGION; we are asking for more RELIGIONS." Complainants concluded that KSL favors The Church of Jesus Christ of the Latter-day Saints over all other religions.

The program entitled "Public Pulse" is allegedly announced as "presented in cooperation with the Deseret News." Miss Hale and Mr. Wharton stated that this announcement belies the assertion of the station that the radio station and the newspaper are in competition.


They complain that they have seldom heard a Catholic service on the station and have never heard a Buddhist, Muslim, or humanist service. Also, they "* * * deplore the lack of programming of Negro religious services."


Political Content. -- Under this heading, Miss Hale and Mr. Wharton reiterated their allegation that viewpoints presented in programs over KSL are weighted to one side on most controversial issues, and that the time provided over the "Public Pulse" program to persons who wish to present contrary viewpoints is not, in the judgment of the petitioners, sufficient. They also claim that public service announcements are "politically oriented." For example, announcements are given for Radio Free Europe but allegedly not for UNICEF.


Newspapers. -- They disputed licensee's statements with respect to the financial viability of the Deseret News and also disputed the disclaimer of a close relationship between the Deseret News and the Mormon Church.


News Content. -- Miss Hale and Mr. Wharton claimed that they are convinced that news is selected to favor the viewpoints of the current administration of the Mormon Church. They stated that an interview with Mayor Hatcher of Gary, Ind., which defended the Black Power concept was broadcast at a time other than during the regular news broadcast and concluded this was done to discredit his address. In the opinion of the complainants, coverage of an appearance by presidential candidate, George Wallace, underplayed the extent of anti-Wallace demonstrations.


They disputed the statement by KSL that the Kearns-Tribune has "long been identified with Catholic interests." Complainants did not dispute the station's contentions that both sides were presented in the "liquor-by-the-drink" referendum but concluded that other national and international issues were more important and, presumably, should have been given more coverage over KSL. Miss Hale and Mr. Wharton alluded to farm holdings of prominent Mormons and repeated their view that too much time is devoted to farm programming. They intimated that "unseen ties" between the licensee and other corporations color the programing judgment of the licensee. No specifics were offered to back up this allegation.


Finally, Miss Hale and Mr. Wharton disputed the station's statements with respect to the number of times they participated in the Herb Jepko telephone program and listed 16 suggestions for changes in KSL's program policies.


Although they referred to "3 tapes" to be submitted "under separate cover," no tapes have been received by the Commission.


[*343] 5. We now come to the "Petition for Reconsideration." The petitioners largely reiterated the contentions of their letter of October 15, 1968; questioned the manner in which the Commission has handled this matter and averred that they had insufficient time to offer material to the Commission in rebuttal to the assertions made in the replies filed by KSL, Inc., because they were not advised of the Commission's action in granting the renewal application. Again, the petitioners questioned the fact that the license was renewed by a vote of a majority of a quorum of the Commission, and the fact that Chairman Hyde, a member of the Mormon Church, voted on the renewal application. Further, they inquired as to whether section 5 (e) of the Act was complied with and whether they have a "right to appear" before the Commission under section 6(a) of the Administrative Procedure Act. They also stated that "We believe the Commission has acted arbitrarily on the bureau, level, and unjustly, in having refused to investigate our charges."


6. Notwithstanding their disclaimers of lack of notice with respect to the Commission's action of October 4 granting KSL's renewal application, the letter received October 17 from Miss Hale and Mr. Wharton entitled "Petition for Reconsideration of Decision" raised questions indicating that both had knowledge of the Commission's action (see par. 4, supra). Moreover, after having been apprised by telephone on November 5 that the petitioners had not received the public notice of October 8, 1968, the Chief of the Broadcast Bureau sent them a copy of the public notice. Despite the petitioners' assertions that they had insufficient time to offer material in rebuttal, they have in fact filed such material as referred to in paragraph 4, supra.


7. The Chief of the Broadcast Bureau advised Miss Hale and Mr. Wharton in a letter dated October 28, 1968, that the vote of a majority of a quorum of the Commission is sufficient to conduct Commission business. We point out that section 4(h) of the Communications Act states that four members shall constitute a quorum. It is a well established principle of procedure that a majority of a quorum can conduct business. See Jefferson Standard Broadcasting, 1 R.R. 2d 423 (1963).


8. As to the section 5(e) contention, the report sent to Congress by the Commission in accordance with section 5(e) of the Communications Act on November 1, 1968 listed the KSL application as pending for 90 days as of September 30, 1968. Petitioners also have been accorded their rights pursuant to section 6(a) of the Administrative Procedure Act. n1


n1 Petitioners have urged that Chairman Hyde should not participate because he is an "important member" of the Mormon Church. But it is well established that churches may be broadcast licensees (e.g., Kansas City Broadcasting Co., Inc., 5 Pike & Fischer, Radio Reg. 1057 (1952); Loyola University,

12 Pike & Fischer, Radio Reg. 1115 (1957), affirmed Noe v. FCC, 260 F. 2d 739 (D.C. Cir 1955): Riverside Church of the City of New York, 19 Pike & Fischer, Radio Reg. 81 (1960). When the applications of such churches come before the Commission in various proceedings, the Commission members of the same faith are not disqualified on that ground. nor, similarly, are appellate judges. F g., Loyola University, supra, affirmed Noe v. FCC, supra. Rather, the Commission member and the judge have sworn to uphold the law and to render impartial judgments, based upon the law, not their religious affiliations.Petitioners have cited no case in support of their novel and bare assertion; because they are laymen, we have researched the matter and have found no supporting authority.


9.There are some threshold procedural arguments raised by the licensee. Thus, on November 19, 1968, the Commission received from [*344] the licensee an opposition to the petition for reconsideration which requested the Commission to dismiss the petition for lack of standing on the part of the petitioners. In response to the opposition, on December 9, 1968, the Commission received further communications dated December 7, 1968, from petitioners in which they reassert their right to petition this Commission. The essence of the procedural argument is that the requirements of section 309(d)(1) 'that petitioners set forth specific allegations of fact sufficient to show that they are parties in interest), and of Office of Communications of United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966) (that petitioners must have a legitimate interest in the proceedings, by showing that they are responsible representatives of groups representative of the listening public, rather than speaking for only individuals) and of section 1.106(c) of the rules (governing petitions for reconsideration) have not been met. There are certainly substantial procedural issues raised. However, we need not pursue these issues in view of our disposition of the case on the merits. In this connection, we note further that whether on a formal or informal basis, Congress has sought to encourage the submission to the Commission of pertinent information by listeners at the time of renewal of license. See, e.g., section 311(a) and its legislative history. We therefore turn to a consideration of the substance of the petition for reconsideration and related pleadings.


10. The petition for reconsideration itself does not provide new material for consideration. We have fully reviewed all of the material filed by pertitioners and the licensee prior, and subsequent, to the October 4, action. Much of this material is repetitious and argumentative rather than factual. The petitions provide no factual basis for their opinions with respect to the alleged evils engendered by the Mormon Church's control of broadcast and other properties, and there is no apparent violation of the Communications Act or Commission rules or policy by this licensee. Many of the areas at which petitioners direct their fire simply involve programming judgments or policies which lie within the licensee's judgment and discretion. Without going into all the matters, we shall treat briefly the following as representative:


(i) News -- Against petitioners' allegations that its news operations are biased and do not serve the public interest, the licensee cites the awards it has won in this field; the fact it employs three network wire services and a large number of other news services precisely for the purpose of giving its listeners the broadest possible view of all local, network and international news; and that it carries the CBS News "live" from the network. Against this, petitioners cite two examples, which do not at all constitute significant extrinsic evidence of slanting the news but rather come within the ambit of licensee judgment as to the manner of covering and presenting news events.


(ii) Fairness -- As to fairness, the licensee sets out its policy to comply with the fairness doctrine and the personal attack rules and cites a recent example of its fairness with respect to coverage of a controversial issue involving the Mormon Church. It also describes the program, "Public Pulse," which is another forum for the expression of viewpoints. Petitioners cite the fact that KSL carries a number of controversial issue programs, but this fact does not raise an issue of compliance with the fairness doctrine. See Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 F.R. 10415, 10416 (1964) for the appropriate procedure to be followed in this respect.


(iii) Favoritism to the Mormon Church -- Petitioners charge that the licensee favors the Mormon Church in its programing efforts. The licensee points out that [*345] of course it presents religious programs for the Mormon Church, since 70 percent of its coverage area are adherents of the Mormon Church. But other religious groups, such as, for example, the Catholic Church, are also afforded time. Further, it points to one particular program, on which representatives of every major denomination have appeared, including, contrary to petitioner's allegation, Buddhists and humanists. Finally, it states that all Mormon Church associated or owned businesses pay regular rates and are afforded no special treatment; that only six such accounts are on KSL and with only minimal schedules.


We do not believe it necessary to continue the above analysis. The point is that petitioners' complaint is largely one for the judgment of the licensee, to be made on the basis of all such contacts with his listening public. It is not, however, a matter coming within this agency's ambit whether the "Herb Jepko Show" allows discussion of controversial issues, or whether on "Public Pulse," a show which does, there is a 3 to 4 minute limitation per call, or whether the licensee should carry more information about air pollution (as well as the present warnings against smoking) or more reports on "food purity," equally with other "health admonitions." These are all part of the many programming judgments which every licensee is called upon to make in light of the many competing demands for limited broadcast time.


11. Finally, on the concentration issue, we adhere to what was stated in our previous ruling. We would also note here that the critical issue is whether a grant would result in a concentration of control inconsistent with the public interest. We do not believe that any such finding can be appropriately made. There is an independent newspaper voice (see our previous ruling), and in the broadcast field, there are in Salt Lake City two other commercial television stations, one educational television station, one FM educational station, six other FM stations, and 11 other AM stations, not controlled by the Mormon Church. Similar recitations of ample competing media could be made when the matter is viewed on a regional basis.


12. In sum, while complaints from the listening public are always welcome and will receive careful consideration, fairness and the proper discharge of our responsibilities require that action on those complaints meet the standard laid down by Congress in the Communications Act -- that there be substantial and material questions of fact or issues going to the public interest, before we designate a licensee'sapplication for hearing. Cf. section 309(d)(1). That standard has not been met here; indeed, we note that other than on the concentration issue, even the dissenting Commissioner from our previous ruling stated that he was "* * * satisfied that by most standards [these] stations have performed as well as or better than most others in the broadcast industry * * *"


13. In view of the foregoing, we would deny the petition for reconsideration on its merits and would affirm the Commission's action of October 4, 1968, finding that the renewal of the KSL license serves the public interest, convenience and necessity.





I vote to reconsider the KSL renewal and to set it for evidentiary hearing, on the Commission's own motion, to determine whether, in light of the licensee's interrelated commercial interests, there is an [*346] undesirable concentration of control of mass media or a situation which would tend unduly to further or to concentrate economic dominance over the population of the Salt Lake City market. See Hershey Broadcasting Co., Inc. 22 R.R. 1071, 1072.


I voted against a grant without hearing of recent applications by the licensee of KSL or related companies for acquisition of station WRFM, New York City (1966); and stations KMBC and KMBR-FM, Kansas City, Mo. (1967), raising therein the question of how the multiple ownership situation would, in fact, serve the public interest.

I believe that the overall situation should be explored fully in an evidentiary hearing on the above-referenced issues.





I believe we should reconsider our action renewing the licenses of KSL, KSL-FM, and KSL-TV -- and of the other stations having interlocking business relations with their licensee -- for the reasons set forth in connection with my dissent to the original action taken on October 4, 1968.

In addition, while the petition for reconsideration is still not as factually specific as I would like -- which is quite understandable when private parties are complaining of the broadcast service they receive -- I think petitioners have now raised questions about KSL's fairness in handling controversial issues, personal attacks, and the provision of full informational service to all significant elements in the community sufficient to justify exploration of these matters in a hearing.

KSL Renewal [In the matter of Petition for Reconsideration * * *]





This matter comes to the Commission on reconsideration from an action taken in a three-to-one "majority" vote announced October 8, 1968. I was absent from the country at the time of initial consideration. The action was taken by "circulation," rather than waiting for the next regular Commission meeting on October 9. Had I been accorded the opportunity to participate in this case initially I would have dissented. I now dissent to the Commission's refusal to grant reconsideration in this case.

The primary issue in this renewal proceeding is the media ownership structure in Salt Lake City and the State of Utah. The facts about this ownership pattern have been detailed in Commissioner Cox's opinion dissenting to the initial renewal action (F.C.C. 68-1005), and in Senate hearings (Hearings Before the Subcommittee on Antitrust and Monopoly of the U.S. Senate Committee on the Judiciary, The Failing Newspaper Act, pp. 328-69; 892-905 (1967)). The Commission must find that the public interest is served by renewing the KSL licenses, and to do so it must approve the following media ownership patterns.


[*347] The Mormon Church owns, in Salt Lake City, KSL TV-AM-FM and the "Deseret News," one of two daily newspapers; it is the ultimate licensee of the educational TV-FM complex at the Mormon university Brigham Young in Provo, Utah. (But for the exemption for educational stations this would be a violation of our "duopoly" rules, in that these stations have overlapping signals.) Nor is the coverage of KSL-TV restricted to the Salt Lake City area.KSL-TV is carried on 71 translators in the State of Utah, serving communities from Aneth to Woodruff, and covering all but a few of the towns of any size in the entire State. (A preliminary analysis of the Census Bureau's list of urban places in the State of Utah indicates that KSL-TV provides service either in its own coverage area or through translators to 35 of the 39 Utah communities.) Ksl/, Inc., is the licensee of four of these translators. KSL-TV is also carried on eight translators in Nevada, six in Wyoming, and seven in Idaho. ARB figures indicate that KSL-TV net weekly circulation is over 50 percent throughout Utah (all but three counties), in one county in Colorado, and three counties in each of the following States: Idaho, Nevada, and Wyoming.


The Mormon Church also owns a TV-AM-FM in Idaho Falls, Idaho; a TV-AM-FM in Seattle, Wash.; an AM-FM in Kansas City, Mo.; an FM in New York City; a private international shortwave station in New York City; a 5.12 percent interest in the Times-Mirror Corp. of Los Angeles; and it is the applicant for an AM-FM in the Los Angeles area. The other daily newspaper in Salt Lake City -- the Tribune -- has a joint operating agency agreement with the Deseret News for combined publishing and business operations. This is a type of operation recently attacked successfully in Tucson, Ariz., by the U.S. Department of Justice in a case now on appeal to the Supreme Court. The Tribune, in turn, has a substantial interest in the second of the three commercial TV stations in Salt Lake City (and Utah) -- KUTV-TV. The other owners of KUTV-TV have substantial media interests, including the daily newspaper in another large and nearby Utah city, Ogden. And all three TV stations in Salt Lake City have jointly acquired the franchise for that city's CATV system.


But the Mormon Church is not only a media baron of substantial proportions, it is also a significant industrial conglomerate corporation. Its holdings are reported to include a 50 percent interest in the Utah Idaho Sugar Co. (beet sugar); its $20 million investment in the Los Angeles Times; a 25 percent interest in Zion's Cooperative Mercantile Institution (a Salt Lake City department store); Hotel Utah and Hotel Temple Square in Salt Lake City; Beneficial Life Insurance Co. (insurance in force of $535 million); Home Fire Insurance Co.; Deseret Book Store; Deseret Farms, Inc.; Deseret Farms of Florida, Inc.; Zion's Securities Corp. (real estate management); a trucking company; a pineapple plantation; three large ranches in Canada; a total of 600 farms, 40 mills, factories, and salvage stores; a 6,500 acre sugar plantation in Hawaii; and 360,000 acres (another source indicates 700,000 acres) in Florida. [Material in this part is drawn from Mullen, The Latter-day Saints 205-07 (1966); Whalen, The Latterday Saints in the Modern World 152-53 (1964); and Turner, The Mormon Establishment 102-36, 267-94 (1966).]


[*348] The Commission has before it substantial complaints about this cartelization of media and its association with dominant economic power. Two citizens of Salt Lake, Ethel C. Hale and W. Paul Wharton, are formally protesting this renewal as petitioners. The majority's original letter dismissing the complaints of petitioners gave media concentration questions only the most cursory treatment. The opinion today adds virtually nothing to that analysis. Yet for the Commission to find the KSL renewals in the public interest it must approve the media structure as it will exist in the Salt Lake City market after renewal. The three Commissioners n1 say: "We would also note here that the critical issue is whether a grant would result in a concentration of control inconsistent with the public interest. We do not believe that any such finding can appropriately be made." (par. 11). But that is the very question that should be tested in the crucible of the hearing process, especially when reconsideration is denied by an equally divided Commission.


n1 I refer to the statement of Chairman Hyde, Commissioner Robert Lee, and Commissioner Wadsworth who, while not a majority on reconsideration, were a majority for the initial renewal decision.


In renewing the KSL license over petitioners' protests the three Commissioners ignore the question of the economic power of the Mormon Church industrial conglomerate; ignore the questions raised by the joint venture operations of the supposed independent media voices to which the three Commissioners refer; and offer no analysis of the competitive market situation in Salt Lake City -- in spite of the strong evidence of domination and concentration of control in the hands of KSL and its business compatriots. As to the numbers of AM and FM stations, the three Commissioners have apparently not learned that numbers of stations equal neither sufficiently effective competition to satisfy the antitrust laws nor satisfactory evidence that media domination is consistent with our "public interest" standards for the marketplace of ideas. Accepted measures of competition depend on a detailed market analysis, including an evaluation of shares of the market. As recently as last week, even this Commission saw the need to set for hearing the WGN application to acquire an FM in Chicago where, on remand from the Court of Appeals, "ample competing media" were insufficient to preclude a hearing.


The three Commissioners' willingness to sustain renewal without adequate substantive explanation flies in the face of the court's concern in the WGN case:


When the subject of surveillance is as sensitive as that involved here, when there is no hearing at which the full facts are brought out, promoting confidence that all relevant facts and aspects have been considered and that the public interest would be served by the grant, when the affirmative finding of public interest required by Congress does not appear expressly, when there is no opinion or other statement providing a reasoned application of articulated standards to the facts of the case, and when the Commission has at least some concern that under today's conditions the public interest requires a strict approach, there exists a combination of danger signals that cannot be ignored or bypassed. (Citizens Committee To Save WFMT-FM v. F.C.C. [D.C. Cir. 1968], No. 21,873, decided July 30, 1968; slip opinion p. 9.)


[*349] But there is a second important question that is linked to the problem of media ownership. The petitioners essentially have charged in their pleadings that the licensee uses its stations to further its own economic and ideological interests in ways that are inconsistent with the public interest. These charges are serious. And a review of all the pleadings indicates that petitioners have raised substantial questions that cannot be resolved on the basis of pleadings -- questions which preclude a grant of the renewals without a hearing.


Finally, the three Commissioners question the standing of petitioners, while stopping short of rejecting the petition for reconsideration on that ground. They cite the United Church of Christ case ( Office of Communication of United Church of Christ v. F.C.C., 359 F. 2d 994 [D.C. Cir. 1966]). One would think this Commission had learned something as a result of the experience of that case. Apparently not. The three Commissioners assert that the petitioners "must have a legitimate interest in the proceedings, by showing that they are responsible representatives of groups representative of the listening public, rather than speaking for only individuals" (par. 9). There is no explanation as to how the determination was made that petitioners are not responsible representatives.


Perhaps they rely on the lack of formal organizations. But surely there are few people who do not recognize the ease by which paper groups can be organized around a few activists. Corporations and trade associations have used this practice for years. Private citizens have caught on. But does this Commission really intend to sacrifice the public interest on the altar of such hollow legalisms?


If necessary, the interests of an individual member of the audience can be identified. There is no such thing as free television. The average homeowner bears a proportionate share of the $20 billion national investment in radio and television receivers (about $300 per home), the radio and television advertising expense built into product cost (about $50 per home per year), the cost of cable television service (about $60 per home per year for subscribers), and a not inconsequential payment for repairs and electricity. These interests are, of course, in addition to his interest as a part owner of the public's airwaves used by the broadcaster in exchange for his commitment to program in the public interest.


The court recognized in the United Church of Christ case that "* * * the Commission has always viewed its regulatory duties as guided if not limited by our national tradition that public response is the most reliable test of ideas and performance in broadcasting as in most areas of life." ( Id. at 1003.) The court also noted:


The theory that the Commission can always effectively represent the listener interests in a renewal proceeding without the aid and participation of legitimate listener representatives fulfilling the role of private attorneys general is one of those assumptions we collectively try to work with so long as they are reasonably adequate. When it becomes clear, as it does now, that it is no longer a valid assumption which stands up under the realities of actual experience, neither we nor the Commission can continue to rely on it.


Id. at 1003-04. It is true that the court spoke of responsible and representative groups as examples of those qualified to intervence. But [*350] there is no indication it meant to limit its holding to a precondition of formal, paper organizations. Quite the contrary.


Concern had been expressed by the Commission in that case that large numbers of groups would seek to intervene, that the Commission would have to choose among groups, that briefs and pleadings would have to be consolidated. The court found such fears substantially outweighed by its desire to provide protection of the viewing audience.


It is difficult to anticipate the range of claims which may be raised or sought to be raised by future petitioners asserting representation of the public interest. It is neither possible nor desirable for us to try to chart the precise scope of patterns for the future. The need sought to be met is to provide a means for reflection of listener appraisal of a licensee's performance as the performance meets or fails to meet the licensee's statutory obligation to operate the facility in the public interest.


Id. at 1006. The means for reflection of listener appraisal is presented only by the petitioners in this case. I think the three Commissioners' gratuitous effort to question their standing is legally wrong and administratively unwise. The contrast between their characterization of petitioners' complaints and KSL's responses speaks for itself. The contrast between the administrative treatment received by both parties from this agency is, to put it most charitably, unfortunate. n2


n2 On Oct. 15, 1968, petitioners filed a petition for reconsideration in which they stated that they understood that KSL had been renewed. (Apparently petitioners, who were parties to the renewal proceeding, had not received notification of the FCC renewal action released Oct. 8.) The response of the Commission to this petition was a letter from the Chief of the Broadcast Bureau mailed Oct. 28. (Because the petition for reconsideration must be filed within 30 days, this delay on the part of the Bureau was obviously prejudicial to petitioners.) He notified petitioners that their filing did not comply with various procedural rule of this Commission, calling their attention to, particularly subsection (f), of 47 CFR 1.106. This rule provides, in pertinent part, that "The petition for reconsideration shall [be on] * * * double spaced typewritten pages." Despite the delay in the Commission's response, substantially the same pleading was refiled on Nov. 6, and is the basis for the Commission's action here.


I dissent to the renewal of the KSL license without a decent inquiry by the FCC into what I consider most serious charges.


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