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In Re Application of KCMC, INC., TEXARKANA, TEX.  For renewal of license of station KTAL-TV, Texarkana, Tex.




19 F.C.C.2d 10  (1969)




JULY 29, 1969







[*109]  KCMC, INC., Station KTAL-TV, 315 Pine Street, Texarkana, Tex. 75501


GENTLEMEN: This refers to your application for renewal of the license of station KTAL-TV, Texarkana, Tex., and to the various complaints and pleadings filed with the Commission with respect to your application.


In January 1969 the Texarkana Junior Chamber of Commerce and a group composed of 12 local unincorporated associations filed separate documents with the Commission alleging that station KTAL-TV had failed to serve the needs and interests of the people of Texarkana, the city to which KTAL-TV is licensed.  During our review of these complaints and your responses thereto, we noted a number of allegations which were not contradicted by you and which reflected adversely on your service to your principal city.  For example, it appeared that you did not include any Texarkana Negro leaders in your survey of that community to determine the tastes, needs and desires of the people served by KTAL-TV, even though approximately 26 percent of the Texarkana population is Negro.  In addition, you acknowledged that you had no color origination equipment in Texarkana, although this equipment was available at your auxiliary studio in Shreveport, La.  We also received complaints that Texarkana residents found it difficult to establish telephone or personal contact with KTAL-TV personnel.  We do not undertake here to detail all of the charges made against your operation of KTAL-TV in Texarkana.  However, it is clear from the above matters that a greater effort could have been made during the renewal period to serve your city of license.


Subsequent to the filing of these complaints, KTAL-TV personnel met with representatives of the complaining organizations.  As a result of the meetings, the complaints were settled and the complainants notified the Commission that they wished to withdraw their pleadings.  We believe that this Commission should encourage licensees to meet with community oriented groups to settle complaints of local broadcast service.  Such cooperation at the community level should prove to be more effective in improving local service than would be the imposition of strict guidelines by the Commission.


 [*110]  In view of the resolution of the matters filed against KTAL-TV and the measures adopted to improve the television service to Texarkana, the Commission has granted your application for renewal of the KTAL-TV license for the period ending August 1, 1971, as serving the public interest, convenience and necessity.  You are cautioned, however, that your performance during this period will be carefully examined at the end of the license term to determine whether you have made an affirmative and diligent effort to serve the needs and interests of the city to which KTAL-TV is licensed.


Commissioner Robert E. Lee absent; Commissioner Johnson concurring and issuing a separate statement; Commissioner H. Rex Lee concurring and issuing a statement.







The alleged public interest failings of KTAL-TV have been described by the Commission majority and Commissioner Rex Lee. I will not repeat them.


The parties who protested this license renewal are now willing to "settle" the case, as it were, in return for certain agreed-upon future conduct from the station.


A license renewal proceeding is, in my judgment, a matter between the broadcaster-licensee and all the people in the community, a matter to be resolved by the FCC according to the statutory standard of the "public interest." The Commission can utilize the services of volunteer local groups.  Indeed, it is so woefully understaffed that any thorough review of broadcaster performance simply must depend upon an aroused and involved citizenry.


But just as licenses should not wrongfully be withheld, revoked or denied in response to unwarranted citizen protest, so they should not be granted automatically because a certain group of once-protesting citizens has for some reason withdrawn its objections.


I am not fully convinced that any agreement could justify a finding that the KTAL's past performance has been a service to "the public interest" of its service area.


I am disturbed by the pattern of media ownership which KTAL represents, and Commissioner Rex Lee has so fully documented. 


I regret, however, that I cannot share his view as to the significance of these facts.


The FCC obviously has not only the "power" (concurring opinion, p. 3) to decide antitrust issues, but the responsibility to do so as well.  The Supreme Court has clearly ruled on this point -- "Congress intended to leave competition in the business of broadcasting * * *," F.C.C. v. Sanders Bros. Radio Station, 309 U.S. 470, 475 (1940) -- and has told the Commission that it "should administer its regulatory powers with respect to broadcasting in the light of the purposes which the * * * (antitrust laws were) designed to achieve." National Broadcasting Co. v. U.S., 319 U.S. 190, 223 (1943). See Federal Maritime  [*111]  Comm'n v. Aktiebolaget Svenska Amerika Linien, 390 U.S. 238, 245-46 (1968).


Most importantly, individuals' access to the media could not possibly "partially qualify" the effect of the antitrust laws in the area (concurring opinion, p. 4).  Nor can it be said that the standards for potential anticompetitive effects should be treated any differently "in a regulated industry, such as broadcasting" (concurring opinion, p. 5).  If anything, the Commission's responsibilities to ward the broadcasting industry and the public go far beyond the antitrust laws.


There are a number of reasons why economic concentrations of control in broadcasting cannot be ignored merely because rights of access have been extended to citizens.  First, the concentration of communications control in the hands of a few may create dangerously excessive "political" power over the minds and thoughts of, and information available to, citizens and politicians alike.  Second, undue concentration reduces the competitive incentives to produce better and more innovative programming.  Third, such concentration ignores the fundamental antitrust tenet of "incipiency" -- that monopolies must be stopped short of the point where the monopolist is in a position to exercise his power in anticompetitive or antisocial ways.  Fourth, the existence of competition in an industry permits less, not more, governmental supervision over the day-to-day operations of that industry.  A competitive system, to some extent, is one that polices itself -- not one that requires continual governmental surveillance.  In sum, although "access" to broadcast facilities is one of the most vital concepts inherent in a system of broadcasting in the "public interest," it is only one of a number of equally important policies in the field.


The Commission is, of course, concerned with economic concentration in the marketplace of broadcast finance, because it must be.  But it must also be concerned with ideological, intellectual, and aesthetic concentrations in the marketplace of ideas.  Our responsibilities not only encompass, but go far beyond, the standards of antitrust law.


It is conceivable that, someday, a "common carrier" concept will be applied to a national cable television system.  If so, anyone could obtain access to a channel in every major community to "televise" his programs to anyone who wished to watch.  Such a system might easily alter our concerns about the potential threats from "concentration of control" of the mass media.  We are not concerned, for example, about the telephone company's potential power to grant or withhold access to personal communication because the tradition, law, and supply of telephones, have made it possible for anyone to have a telephone who can pay for it.  A comparable common carrier cable television system might have a similar impact upon our concerns about media monopolies.  But the important point is that that day has not yet arrived.  Whatever the Red Lion case ultimately may come to mean ( Red Lion Broadcasting Co., Inc. v. FCC, 37 U.S. L. W. 4509 (U.S., June 9, 1969)), it has not yet operated in a manner comparable to the common carrier cable system just described.  In short, any thought of loosening the already feeble bonds of antitrust protection surrounding the broadcasting industry is, in my judgment, very premature.


 [*112]  I support the majority's disposition of this case because it represents a first effort at a commendable innovation in the process of public participation in the license renewal process.  Hearings are cumbersome, expensive, and truly a last resort -- for licensee and contestant alike.  I have long recommended that anyone who is dissatisfied with his local broadcaster's performance should always, as a first step, endeavor to work the problem out with the broadcaster directly.  Broadcasters have an economic incentive, even if they do not feel their personal responsibility and legal obligation, to serve the needs, tastes and interests of their listeners and viewers.  My own view is that many of this country's leading citizens are as much at fault as the broadcasters for the poor quality of today's programming -- if they have not offered their ideas, and personal talents, to their local stations.


There will, of course, be instances in which fruitful citizen-broadcaster discussion is not possible without the threat of a contested license renewal -- or even with such a contest.  And I believe the public simply must be permitted to retain the ultimate power of participation in license renewal and revocation proceedings which Congress in its wisdom so wisely wrote into the Communications Act of 1934.  But just as the settlement procedure has been widely used throughout the legal process, so I believe we should experiment with its use in the administrative license renewal process of this agency.  If local groups can be satisfied with the terms of agreements they can work out with local broadcasters I believe they are entitled to great -- although perhaps not conclusive -- weight.


This is the first such agreement to come before the FCC.  By voting, in effect, to "accept" it I do not mean to foreclose my subsequent investigation into this, or other cases that may come before us.  It is the FCC's ultimate responsibility to find that the "public interest" will be served by a license grant.


I am prepared to make such a finding in this case, at this time, however, as an experimental gesture to explore what may prove to be a very useful tool in our administrative process.





I concur in the Commission's decision to renew the broadcast license of KTAL-TV, because the matter raises major issues which are not fully discussed in the notice.  These should have been reviewed against the background history of the licensee's performance and the facts of this case.


The Commission, by the Chief, Broadcast Bureau, on October 21, 1968, renewed the license of KCMC, Inc., the licensee of station KTAL-TV.  The action was rescinded pursuant to section 1.113 of the Commission's rules on November 14, 1968, pending Commission consideration of a complaint regarding the licensee's alleged failure to serve the needs and interests of the Texarkana area.  This complaint, submitted by the Texarkana Junior Chamber of Commerce, alleged that KTAL-TV practiced a pattern of operation resulting in inadequate  [*113]  news coverage, discriminatory advertising, inadequate local programming, and deficient local studio facilities.  n1


n1 This complaint was withdrawn by the junior chamber in February 1969, after a group of its members and the licensee met to discuss ways of improving KTAL-TV's service in Texarkana.  The withdrawal of a specific complaint does not foreclose Commission review and investigation of the facts out of which it arose, especially where the allegation raises substantial questions of great concern.  Midwest Radio-Television, Inc., 16 F.C.C. 2d 943-4 (1969).


While the Commission had this complaint under study, 12 unincorporated Texarkana associations n2 filed a petition to deny the renewal application on the ground of the licensee's alleged failure to serve the needs and interests of the Negro population of Texarkana. 


n2 Petitioners are: Texarkana Organization: "Citizens Committee to Improve Local Television Service; Carver Terrace Community Club; Negro Community Leaders Committee; National Association for the Advancement of Colored People; Texarkana Improvement Club; Marshall Alumni Chapter of Kappa Alpha Psi Fraternity; Gamma Kappa Zeta Chapter of Zeta Phi Beta Sorority; Phi Beta Sigma Fraternity; Lonoke Baptist Church; Model Cities Planning Area P7, (all of the Texarkana); and New Hope Baptist Church, Kiblah, Ark.


Their joint petition, filed on January 10, 1969, alleged that: (a) The licensee did not consult with Texarkana Negro leaders or organizations concerning their tastes, needs and desires; (b) the station did not present public service announcements for Negro or integrated groups; (c) Negroes were not presented on local public affairs programs; (d) the station deleted network programs of particular interest to Negroes; (e) the views of Negroes were rarely presented with respect to issues of concern to Negroes; (f) the licensee did not live up to the programming proposals of its 1965 renewal application; (g) the licensee has an undue concentration of control of communications media; and (h) the KTAL-TV studio facilities have been moved from Texarkana.


This petition to deny was accompanied by an additional petition containing approximately 7,000 names, wherein it was charged, inter alia, that the licensee "disorientated itself from the affairs, desires, and needs of the people of Texarkana." Further pleading gave rise to the complaint that it is difficult for people in Texarkana to establish contact with the licensee's responsible employees.  None of the pleadings filed by the licensee had the effect of substantially controverting charges that KTAL-TV, among other things: (a) Excluded Negros from participating in KTAL-TV programming; (b) refused to present certain public service announcements and news items requested by Negro, integrated groups, or others; and (c) excluded pictures of Negroes at integrated events.


On June 9, 1969, the Commission received copies of an agreement entered into between KTAL-TV and the parties to the petition to deny.  As part of the agreement, the parties requested that their petition to deny be given no further consideration, and that the Commission act to renew the KTAL-TV license for a full term.  Generally, the agreement establishes new station operating conditions for management decisions in programming, the assignment and allocation of personnel and equipment, and the protection of local public access to prime-time programming.  (See agreement attached exhibit A.) Most significantly, the licensee covenanted with its community that any material variance from the agreement would be deemed a failure to operate substantially as set forth in the station license.


 [*114]  It would not seem appropriate, at least at present, for the Commission to order a hearing into the issues raised by the petitioners who are now seeking to withdraw.  The Commission's decision stems from the overwhelming public interest in such an agreement, the whole community's expectations in obtaining a broadcast service uniquely in its own interests, and the consistency of the undertaking to Commission policies on the ascertainment and service of community broadcast needs.


Nevertheless, this proceeding raises extremely important issues which are not simply resolved by finding that certain complaints have been settled.  The primary issue is that of undue media concentration of control.  A media concentration issue does not disappear merely by withdrawing a complaint.  In a renewal proceeding especially, the Commission should closely examine media concentrations.  They should be approved only if there ae sound reasons based upon contemporary social and economic considerations which permit finding that the public interest will be served by the issuance of a license.


The Commission action approving KTAL-TV's license renewal, asserts that no question about the issue of media concentration warrants denial of the license because of the licensee's media holdings alone.  This does not mean the elements and effect of a media concentration are immune from inquiry.  The Commission has designated renewal applications for hearing where interlocking broadcast, newspaper, and CATV interests have been shown or found to have had some undesirable effect upon a community.  Chronicle Broadcasting Co., 17 F.C.C. 2d 245 (1969); Midwest Radio-Television, Inc., 16 F.C.C. id 943-4 (1969).


In reviewing the charges of undue concentration of media control, the following ownership interests were carefully considered.  KTAL-TV is licensed to KCMC, Inc., which is owned by Walter E. Hussman, his wife and his mother-in-law, Bettie M. Palmer. KCMC, Inc., is also licensee of station KCMC and KTAL-FM in Texarkana (population: 56,400).  n3 Although there are three other AM and two other FM stations in Texarkana, the three broadcast stations licensed to KCMC, Inc., accounted for approximately 80 percent of the broadcast revenues of that city in 1968.  The grade B signals of KTAL-TV reach approximately 1,024,100 people residing in the four-State area of Texas, Arkansas, Louisiana, and Oklahoma.  n4 This family, furthermore, owns Texarkana Newspapers, Inc., publishers of the only two newspapers in the city of Texarkana.  The Texarkana Gazette (m) and News (e) have a combined daily circulation of 30,343, and the circulation of the Gazette on Sunday is 30,314.  n5 KCMC, Inc., also holds more than a 25 percent interest in Business Music, Inc., a background music service in Shreveport, La.  The Hussman-Palmer family owns Palmer Realty of Texarkana. 


n3 Estimated 1969 population, Spot Television Rates and Data, June 15, 1969, p. 434.


n4 This figure is derived from FCC engineering standards and estimated 1969 population figures from Spot Television Rates and Data.  June 15, 1969.


n5 Ayre Directory of Newspapers and Periodicals, 1969, p. 1064.


The Hussmans and Palmer have controlling interest in Camden Radio, Inc., licensee of station KAMD and permittee of KEWH-FM  [*115]  in Camden, Ark. (population: 19,051).  n6 They also substantially own the only newspaper in Camden, the News.  n7 Large interests in Marigayle Realty Co. of Camden are held by the Hussmans.  Through their ownership of Texarkana Newspapers, Inc., these individuals have a 3.5 percent interest in station KXAR, Hope, Ark. (population: 10,440).  n8 The Hussman-Palmer family owns 50 percent of the Hope Star, the town's only newspaper.  n9


n6 Estimated 1969 population, Editor and Publisher International Yearbook, 1969, p. 25.


n7 The Camden News has a circulation of 6,712.  Ayre, 1969, p. 59.  This city is one of the 38 communities in the United States with two radio stations (either AM, AM-FM, or FM) and one daily newspaper, with the newspaper having ownership interest in one of the two stations.  Newspaper-broadcast joint interests as of Novembr 1968, tabulation prepared by the Federal Communications Commission, table 3.  From time to time, the Hussmans, one or both, vote the stock in Camden Radio, Inc., held by Texarkana Newspapers, Inc., and Camden News Publishing Co., which together hold 34.18 percent interest in the licensee.


n8 Estimated 1969 population, Editor and Publisher International Yearbook, 1969, p. 26.


n9 The Hope Star has a circulation of 3,349.  Ayre, 1969, p. 63.  This city is one of the 62 communities in the United States with one radio station (either AM. AM-FM, or FM) and the newspaper having ownership interest in the station.  Newspaper-broadcast joint interests, table 2.


W. E. Hussman, his wife, and Bettie M. Palmer own and manage the Palmer Media Group which has controlling interest in five other Arkansas newspapers (the Eldorado Times, Eldorado News, Hot Springs New Era, Hot Springs Sentinel Record, and the Magnolia Banner-News), and own 25 percent of the Jacksonville (Tex.) Daily Progress. Mr. Hussman is the publisher of the Palmer Media Group.  In addition to the daily newspapers, the Hussman-Palmer family owns weekly newspapers in Magnolia, Stephens, and Smackover, Ark. All of these Arkansas cities are within 100 miles of Texarkana, and none has a competing newspaper.  n10 Only in Jacksonville, Tex., is there a weekly newspaper not controlled by the Hussman-Palmer family.  The total circulation of Palmer Media Group newspapers as of the end of 1968 was 78,324.  n11


n10 KTAL-TV has over a 50-percent net weekly circulation in Hempstead and Columbia Counties, Ark., where Hussman-Palmer publishes the Hope Star and Magnolia Banner-News, respectively: a 25-49 percent net weekly circulation in Quachita and Union Counties, Ark., where the Camden News, the Stephens Star, and the Eldorado Times and News are published; and between 5-24 percent net weekly circulation in Cherokee County, Tex., where the Jacksonvile Daily Press is published. 39 Television Factbook, Stations Volume, 1969-70, p. 334-b, 336-b.


n11 Newspaper Circulation Analysis, 1968-69, Standard Rate and Data Service, Inc., p. B-13.


The signals of KTAL-TV are carried on six CATV systems (Camden, Hot Springs, Hope, and Prescott, Ark.; Long View and Kilgore, Tex.) in which Hussman and his wife own or control, directly or indirectly, a 25 percent or greater interest.  The Hussmans also have a financial interest in CATV systems in Vicksburg, Miss., and Henderson, Tex.  (See media map attached as exhibit "B".)


The Commission has no power to decide antitrust issues, but may consider Federal antitrust policy in determining whether the public interest will be served by a broadcaster's conduct, operations, and action.  U.S. v. RCA, 358 U.S. 334, 351-2 (1958).  Midwest Radio-Television, Inc., supra, established that where a broadcast licensee is charged with specific abusive economic and business practices which may substantially lessen competition or restrain commerce among other broadcasters within a market, an inquiry will be ordered to explore the use of media holdings for the purpose of creating and maintaining an undue concentration.


 [*116]  Analysis of the elements of a media concentration, however, is not limited solely to consideration of its economic and business practices.  The distribution of news, information and programming is "* * * an inseparable part of the flow of interstate commerce." Lorain Journal Co. v. U.S. 143 (1951).  Any combination inhibiting competition in the line of this commerce is to be condemned.  Association Press v. U.S., 326 U.S. 1, 17 (1945). In the Associated Pres case, the Supreme Court of the United States said, "* * * a command that the Government shall not impede the free flow of ideas does not afford nongovernmental combinations a refuge if they impose restraints on that constitutionally guaranteed freedom.  Freedom to publish means freedom for all and not for some." (At p. 20).  Mr. Justice Frankfurther gave this theme a new dimension in his concurring statement to the case, where he observed that, "* * * the incidence of restraints upon the promotion of truth through the denial of access to the basis of understanding calls into play considerations very different from comparable restraints in a cooperative enterprise having merely a commercial aspect." (At p. 28).


Freedom for all to publish, reasonably balanced against the illegality of denying media access for the widest dissemination of information from diverse and antagonistic sources, emerged as a new standard in national communications policy, transcending immediate antitrust and monopoly concerns.  The Federal Communications Commission picked up this notion in its 1948 Editorializing Report, codifying prior law and practice, and imposing on broadcast licensees the affirmative obligation to present opposing views on controversial issues of public importance.  The policy statement, in effect, affirmed both the public interest in, and a legally enforceable right of the public to media access for the dissemination of diverse, antagonistic and contrasting views.  In the recent decision of Red Lion Broadcasting Co. v. FCC,     U.S.     (1969), 37 L.W. 4509, not only did the Supreme Court reaffirm the view that "there is no sanctuary in the first amendment for unlimited private censorship operating in a medium not open to all," but specifically acknowledged "* * * the right of the public to suitable access to social, political, esthetic, moral, and other ideas and experiences."


This right partially qualifies the effect of antitrust laws in the formulation of communications policy.  The multimedia combination of a broadcast licensee's holdings may properly be the subject of Justice Department actions sounding in Sherman and Clayton Act violations, but insofar as the Federal Communications Commission is concerned, the protection which a licensee affords to the public's right of access may, in part, overcome condemnation of the combination as an undue concentration.  The Commission acknowledges this fact in renewing the license of KTAL-TV.  It believes the public interest will be served by allowing the broadcast licensee to enter into agreement with "community-oriented groups" to insure the presentation of local programming as a condition of the broadcaster's license.


Traditional antitrust law does not require proof of actual restraint in a line of commerce in order to establish illegality.  Rather, the reasonable likelihood of a substantial lessening of competition may be sufficient.   [*117]  U.S. v. Penn-Olin Chemical Co., 378 U.S. 158 (1964). The essential concern is in arresting the threat that any one enterprise will gain an undue share of economic control within a relevant market.  But in a regulated industry, such as broadcasting, the standard which relies on the potential probability of anticompetitive effects has not been utilized as an instrument of control in preference to basing decisions on the actual effects of an economic concentration of media.  Elyria-Lorain Broadcasting Co., 5 F.C.C. 2d 231 (1966). In terms of communications policy, an economic concentration may be justified where anticompetitive effects are not collaterally produced.  Midwest Radio-Television, Inc., 16 F.C.C. 2d 943, 946 (1969). Thus, where the public's access to information, news, and entertainment is an issue to be decided in renewal proceedings, the question of whether media holdings create the potential probability of conferring an undue share of the licensee's relevant market does not lead to an entirely useful inquiry.  Because of the public's right to suitable access, no licensee is permitted a control in broadcast programming superior to that of its listening audience.  For that reason, a licensee may be able to show that anticompetitive effects are not produced by the economic concentration of its media interests.  Cf.  U.S. v. Philadelphia National Bank, 374 U.S. 321, 362-367 (1962). An undue concentration of media control is one which is created and functions in an environment of restraint, actually lessening competition in the dissemination of information and entertainment from the widest possible number of diverse and antagonistic sources.


These considerations emphasize the fact that management practices in the news and information field, as distinguished from anticompetitive economic practices, may in themselves bear a substantial relation to the question of whether multimedia interests possess an undue concentration of control.  Chronicle-Broadcasting Co., 17 F.C.C. 2d 245, 247 (1969).


On the other hand, where broadcast and newspaper enterprises are commonly owned, the actual configuration of management and economic relations affecting competition may require review not only of the manner in which a media concentration operates, but also of the diversity of its approach to programming.  Existing Commission policies require multimedia owners to maintain the separate and distinct character of broadcast facilities for independent social, political, and business decisions fostering the maximum possible competition.  Huntingdon Broadcasters, Inc., 5 F.C.C. 2d 246, 293-4 (1966); James B. Childress, 3 F.C.C. 2d 32, 45 (1965).


Where, on a petition to deny, opposing parties in the broadcaster's community of license enter into written agreement with the existing licensee, which, in effect, establishes new management relations separate and distinct from the licensee's newspaper, radio, and CATV interests, the Commission cannot regard its hearing process as a more expeditious or better way of correcting deficiencies in the operations of a broadcast licensee.


The Commission also satisfied itself in the instant proceeding that other charges dealing with the inadequate survey of community needs, and the inadequate presentation of local news coverage and programming,  [*118]  raised substantial and material questions of fact.  There was no clear showing in the renewal application and the licensee's pleading that it had consulted any Texarkana Negro leader or organization in connection with its 1968 renewal application.  Thus, there was a material question as to whether the licensee had undertaken the required measures to determine the needs and interests of substantial minority groups within its city of license.  n12 As we stated in Capitol Broadcasting Co., 38 F.C.C. 1135, 1139 (1965):


n12 According to most recent census statistics, approximately 26.5 percent of the population of Texarkana (Texas-Arkansas) is Negro.  In addition, the junior chamber of commerce charges of inadequate local news coverage and programming indicate a further insufficient attention and lack of survey to determine the economic and social needs for programming serving the licensee's principal city of license.  Cf.  City of Camden, New Jersey, 18 F.C.C. 2d 412 (1969).


A licensee's programming must be designed in good faith to serve its area.  Thus, if a licensee had one rotating church program and never presented Negro churches even though they represented half the churches or population in the area, the obvious question is presented whether the licensee is seeking in good faith to serve his area's needs or simply following or acquiescing in a deliberate exclusionary pattern.  The same consideration would be true in other programming areas.  If, for example, a licensee never sought to ascertain or serve the needs of predominantly Negro colleges in the area -- even though there were a large number of such colleges -- the question is presented whether the licensee can be said to be "equitably" and in good faith meeting his obligations under the public interest standard.


Every broadcast licensee is obligated both to design its programming, and to make a good faith attempt to meet the program needs, not only of its city of license, but of the entire area it serves.  Petersburg Television Corp., 10 R.R. 567, 584j (1954). The entire Texarkana-Shreveport area is involved here.  "(A) broadcast station (cannot) serve the needs and interests of any substantial minority group population within its service area by ignoring them." Lamar Life Broadcasting Co., 14 F.C.C. 2d 431, 436 (1968).


Commission policy reflects the vitality broadcasting possesses as a means for expressing the values and culture of a democratic society.  The National Advisory Commission on Civil Disorders has enunciated the urgent necessity for the media to achieve the fullest potential of this mission.  Indeed, the FCC officially acknowledged the report in describing broadcasting's obligation to meet the nighttime needs of the black community.  Stewart Electronics (WCCR), 18 F.C.C. 2d 553 (1969). It is well, therefore, to restate a conclusion of that report which should apply to all the media:


The failings of the media must be corrected and the improvement must come from within the media.  A society that values and relies on a free press as intensely as ours is entitled to demand in return responsibility from the press and conscientious attention by the press to its own deficiencies.  Report of the National Advisory Commission on Civil Disorders, 1968, U.S. Government Printing Office, p. 203.


As a matter of overwhelming public interest, the Commission approves renewal of the KTAL-TV license because the agreement of its licensee attempts improvements of the type which most appropriately should come from within the media.


The Commission also reviewed those charges concerning the allocation of the licensee's personnel and equipment between the Texarkana and Shreveport studios in order to determine whether section 73.613 [*119]  of the Commission's rules had been violated.  Because of overriding public interest considerations in the agreement between the licensee and petitioning community groups, the Commission, in effect, decided not to resolve this question at the present time.  Nevertheless, in view of its importance to the service of local public interests in broadcasting, it seems advisable that the licensee's future course of conduct should be guided by past Commission decisions in this area.  The licensee cited to us certain cases which, in its view, stand as a bar to Commission inquiry into whether the Shreveport studio is in fact the "main" KTAL-TV studio.  Those cases seem inapposite.  The facts of Gulf Television Co., (KGUL-TV), 20 F.C.C. 734 (1956), are too dissimilar to justify considering the case as binding precedent in this situation.  For example, in that case, the licensee maintained a personnel ratio of 2 to 1 for the main and auxiliary studio; whereas, in the instant case, the facts tend to indicate that the ratio is nearly 10 to 1 favoring the Shreveport studio.  Also in that case, all network programming connections were made in the city of license, and the majority of live programming originated there.  The opposite seems true here.  In North Dakota Broadcasting Company, Inc., 27 F.C.C. 246 (1959), the Commission found no "preponderance of local activity" originating in the auxiliary studio.  Here, there are allegations in evidence of substantial local activity in the KTAL-TV Shreveport studio.  In reaching the question of whether an inquiry is barred, it should be noted that in William E. Walker, et al., 22 F.C.C. 1142 (1957), the Commission indicated its willingness to look into the issue of a licensee's allocation of studio facilities where there is evidence that the station has neglected its city of license.  As has been shown, here there is such evidence in dispute.


Generally the Commission has left the location of auxiliary studios to the decision of the licensee.  Gulf Television Co., supra. The Commission's policy "* * * requires licensees to serve the needs and interests of [their] entire area, while at the same time placing primary emphasis on [their] city of license.  This policy affords licensees a good deal of flexibility [in] striking a balance between area wide and city needs." Nationwide Communications, Inc., 18 F.C.C. 2d 171, 172 (1969). The adjustment of a balance is essential because there is a direct relationship between the location of a television main studio and the manner in which a licensee serves the community concerned.  WSIX Broadcasting, 8 R.R. 216 (1952). The percentage of programming originated from the main studio is a prime factor in deciding whether a station is serving those residing in its area; and is used as a basis for making case-by-case determinations when a main studio question is placed in issue.  Gulf Television Co., supra; Nationwide Communications, Inc., supra. It may be observed, however, that the Commission generally has not permitted less than 50 percent local origination from a main studio, adjusted to serve only the most efficient development of programming for local interests.  In Ponce Television Corp., 17 F.C.C. 2d 411 (1969), n13 the Commission required that more than 50 percent of the station's nonnetwork programming, excluding entertainment, must [*120]  be originated in its main studio; while in the Nationwide case origination of more than 50 percent of local programming, including entertainment, was required.  n14 In addition, this obligation was buttressed by requiring, in subsequent renewal applications, a showing of where the station's programming originated.  In order to insure minimum parity between the main and auxiliary studios, both the Ponce and Nationwide cases held that where a licensee maintains color equipment in an auxiliary studio, the main studio must also have color origination capability.  Thus, the allocation of programming, personnel, and equipment are determinative factors in reaching a conclusion relevant to a licensee's local service.  


n13 Cf. also Ponce Television Corp., 18 F.C.C. 2d 543 (1969) on petition for reconsideration.


n14 The Ponce case, supra, involved broadcast service in San Juan, P.R. Stricter requirements have been imposed on mainland stations.  Petersburg Television Corp., F.C.C. 69-640, June 9, 1969.


Because of the overriding public interest consideration to be served by granting renewal of the KTAL-TV license, the main studio questions here involved are more appropriately reached by subsequent inquiry; or upon further complaint, by the issuance of a cease and desist order.  47 U.S.C. 312, 403.  The Commission's primary concern is in the public interest to be served by the renewal of a license.  On a petition to deny, the efficacy of the hearing process to correct deficiencies of a station's operations, which the parties are willing to adjust by more expeditious means, is at best doubtful.  This is especially true where the Communications Act, itself, affords remedial devices which can be employed in the event of the licensee's failure to observe a condition of its license.






KCMC, Inc., licensee of KTAL-TV, and al parties to the petition to deny and to the reply filed with respect to KCMC, Inc.'s application for renewal of its television broadcast license, being hereinafter collectively referred to as "Petitioners," agree as follows:


1.  KCMC, Inc., will broadcast on prime time the statement of policy attached hereto.  This agreement and this statement will also be filed with the Federal Communications Commission as an amendment to the pending renewal application.  Any material variance from said statement shall be deemed to be a failure to operate substantially as set forth in the license.


2.  Simultaneously with the filing of said statement, petitioners will join and hereby join in requesting the Federal Communications Commission to give no further consideration to the pleadings filed by petitioners, or any o them, with respect to KTAL-TV.  Petitioners also join in requesting the Federal Communications Commission to renew KTAL-TV's television broadcast license for a full term.


3.  This agreement ad the attached statement contain the complete agreement of the parties, and there are no other promises or undertakings, express or implied.


Signed this 8th day of June 1969.


KCMC, Inc., W. E. Hussman, President; Texarkana Organization, Robert D. Smith, President; Citizens Committee to Improve Local Television Service, David E. Stephens, Chairman; Carver Terrace Community Club, Eldridge Robertson, Chairman; Negro Community Leaders Committee, G. W. Thompson, M.D.; National Association For the Advancement of Colored People, Mrs. Jennie Dansby, Secretary; Texarkana Improvement Club, H. F. Langford, Jr., President; Marshall Alumni Chapter Kappa Alpha Psi  [*121]  Fraternity, Denzer Burke; Gamma Kappa Zeta Chapter, Zeta Phi Beta Sorority, Helen McNeal, President; Phi Beta Sigma Fraternity, M. D. Dodd, President; New Hope Baptist Church, Kiblah, Ark., N. E. Jones, Pastor; Lonoke Baptist Church, C. K. Yarber, Pastor; Model Cities Planning Area P7, Miss Helen S. King; Earle K. Moore, Attrney for Petitioners; James E. Greeley, attorney for KCMC, Inc.




KTAL-TV, having in mind its duty to serve equally all segments of the public, makes the following statement of policy:


1.  KTAL will continue to observe all laws and Federal policies requiring equal employment practices and will take affirmative action to recruit and train a staff which is broadly representative of all groups in the community.  As part of this policy, KTAL will employ a minimum of two full-time Negro reporters, one for Texarkana and one for Shreveport.  These reporters will appear regularly on camera.  In addition, KTAL will designate one person on its program staff to be responsible for developing local public affairs programs of the type described later in this statement and for obtaining syndicated or other programs to serve similar needs.


2.  KTAL will continue to maintain and will publicize a toll-free telephone line from Texarkana to its studios in Shreveport.  A person will be available in Shreveport to receive requests for news coverage and inquiries about public service announcements.  KTAL will give adequate coverage to events in the State capitols of Texas and Arkansas, as well as those of Louisiana and Oklahoma.


3.  KTAL recognizes its continuing obligation to maintain appropriate facilities in Texarkana, its city of assignment.  To this end, it will assign to its main studios in Texarkana a color television camera.


4.  KTAL recognizes its obligations to present regular programs for the discussion of controversial issues, including, of course, both black and white participants.  The station will not avoid issues that may be controversial or divisive, but will encourage the airing of all sides of these issues.


5.  Poverty is a primary problem in KTAL's service area.  KTAL is obligated to try to help solve this problem by publicizing the rights of poor persons to obtain services and the methods by which they may do so.  KTAL will also inform public opinion about the problem of poverty and the steps that are being taken to alleviate it.  An aggregate of at least one-half hour of programming will be devoted to this subject each month.


6.  KTAL religious programming should cover the entire range of religious thought.  As part of its continuing effort to meet this obligation, KTAL will carry the religious programs presented by NBC representing the three primary American faiths.  A discussion program will also be presented, to explore current religious issues, at least monthly.  KTAL will regularly present ministers of all races on local religious programs.  These ministers will be regularly rotated, in an effort to represent fairly all religious groups.


7.  Network programs of particular interest to any substantial group  [*122]  in the service area will not be preempted without appropriate advance consultation with representatives of that group.


8.  KTAL is obligated to discuss programming regularly with all segments of the public.  In particular, a station employee with authority to act will meet once a month with a committee designated by the parties to the petition to deny KTAL's TV application for license renewal.  Similar efforts will be made to consult with groups representing other segments of the public.


9.  KTAL will regularly announce on the air that the station will consult with all substantial groups in the community regarding community taste and needs and will accept suggestions on how best to render this service.  This announcement will be broadcast once a week, on a weekday, between 7 and 11 p.m.


10.  KTAL reaffirms its existing policy to make no unessential reference to the race of a person.  In cases where such references are made, the same practice shall be and will be followed for blacks as for whites.  KTAL will continue to use courtesy titles for all women, without regard for race.


11. KTAL will endeavor to develop and present at least monthly, in prime time, a regular local magazine-type program, including not only discussion but also local talent, and seeking participation from the entire service area.


12.  KTAL will solicit public service announcements from local groups and organizations.  Sound on film will be used more extensively in covering local news.  In covering demonstrations, picketing, and similar events, KTAL-TV will seek to present the diverse views which gave rise to the event.


13.  KTAL-TV's undertakings are subject to all valid laws, rules and regulations of the Federal Communications Commission and to KTAL's primary obligation as a broadcast licensee to use its own good faith and judgment to serve all members of the viewing public.  It is recognized that needs and circumstances change, that events may compel departure from these undertakings.  However, KTAL-TV will not depart from these undertakings without advance consultation with the affected groups in the service area and advance notice to the Federal Communications Commission stating the reasons for the departure.  In such instances KTAL will seek to adhere to the objectives of this statement by alternative action.



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