In Re Applications of CHRONICLE BROADCASTING CO., SAN FRANCISCO, CALIF. For Renewal of Licenses of
Stations KRON-FM and KRON-TV, San Francisco, Calif.
Docket No. 18500 File No. BRH-926
File No. BRCT-94
FEDERAL COMMUNICATIONS COMMISSION
40 F.C.C.2d 775
RELEASE-NUMBER: FCC 73-468
May 9, 1973 Released
Adopted May 3, 1973
JUDGES:
COMMISSION WILEY FOR THE COMMISSION:
COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.
OPINION:
[*775] 1. This
proceeding involves the applications for renewal of licenses of broadcast
stations KRON-FM and KRON-TV, San Francisco, California, filed by Chronicle
Broadcasting Co. (hereinafter Chronicle), which is a wholly owned subsidiary of
The Chronicle Publishing Co. The latter company also owns the San
Francisco Chronicle, one of the two daily newspapers published in San
Francisco, and is part owner and publisher of San Francisco's only Sunday
newspaper. By Memorandum Opinion and Order, FCC 69-262, 16 FCC 2d 882,
released March 20. 1969, reconsideration denied, FCC 69-1388, 20 FCC 2d 903,
released December 22, 1969, we designated the above-captioned applications for
hearing.
[*776] 2. The
issues specified for hearing in the designation order, n1 as enlarged by the Review Board
(FCC 69 R-255, 18 FCC 2d 120 and FCC 69 R-337, 19 FCC 2d 240; application for
review denied, FCC 70-529, 23 FCC 2d 162, released May 26, 1970) are as
follows:
n1 The hearing issues were amplified and further explained by a Commission Specification Order ( FCC 69-376, 17 FCC 2d 245) released April 23, 1969.
1. Whether Chronicle
Publishing Company, the parent of the licensee, has an undue concentration of
control of the media of mass communications in the San Francisco Bay area;
2. Whether the Chronicle
Publishing Company has engaged in anti-competitive or monopolistic practices in
the newspaper field in the San Francisco Bay area;
3. Whether the licensee has
used the facilities of Stations KRON-FM and KRON-TV to "manage" or
slant the news and public affairs for the purpose of advancing the interests of
the Chronicle Publishing Company;
4. Whether the past
programming of Stations KRON-FM and KRON-TV, particularly with regard to public
service programming was of such high quality as to constitute a countervailing
factor in the resolution of this case insofar as it relates to Issues (2) and
(3), above;
5. (a) To determine the facts
and circumstances relating to and surrounding the investigation of Albert Kihn
and Blanche Streeter by Chronicle Broadcasting Co.;
(b) To determine whether the conduct
of such investigations constituted attempts to harass, coerce and intimidate
such persons and, if so, what effect such conduct has upon the qualifications
of Chronicle Broadcasting Co. to be a Commission licensee;
6. Whether, in the light of
the evidence adduced pursuant to the foregoing issues, a grant of the
above-captioned applications would serve the public interest, convenience and
necessity.
In addition, inasmuch as the
complaints of Albert Kihn and Blanche Streeter ('ereinafter Complainants)
formed the bases for designating the proceeding for hearing, we named them as
parties to the proceeding. With respect to issues 1 and 2, the burden of
going forward with the introduction of evidence was placed on Complainant
Streeter and the Broadcast Bureau (hereinafter Bureau); with respect to issue
3, the burden of going forward with the introduction of evidence was placed on
Complainant Kihn and the Bureau; with respect to issue 4, the burden of
proceeding with the introduction of evidence was placed upon Chronicle; with
respect to issue 5, the burden of proceeding was placed upon Complaints Kihn
and Streeter; and the ultimate burden of proof on all of the issues was placed
upon Chronicle.
3. In an Initial Decision, FCC
71D-6, released March 1, 1971, as corrected by Mimeo Nos. 64706 and 64768,
released March 2 and March 4, 1971, respectively, Hearing Examiner Chester F.
Naumowicz, Jr., n2
resolved all of the hearing issues in Chronicle's favor and concluded that the
public interest would be served by a grant of the renewal applications.
Exceptions to the Initial Decision and a brief in support thereof were filed by
the Complainants on June 1 and June 3, 1971, respectively. Replies were
filed by Chronicle and by the Bureau on July 2, 1971. n3 In addition, Chronicle filed a
renewed motion to disqualify [*777] Commissioner Nicholas Johnson
on September 21, 1971, and the Complainants filed an opposition thereto on October
18, 1971.
n2 By Order, FCC 72-760, released August 30, 1972, we authorized these officials to change their title from Hearing Examiner to Administrative Law Judge, with the change to be effective September 6, 1972.
n3 Also
before us are the following pleadings: (a) statement in support of the Initial
Decision filed March 31, 1971, by Chronicle; (b) motion for permission to file
pleading in excess of prescribed length filed July 2, 1971, by Chronicle; (c)
motion for leave to file reply filed July 14, 1971, by Chronicle; (d) reply to
the Bureau's reply filed July 14, 1971, by Chronicle; (e) limited exceptions to
the Initial Decision filed June 1, 1971, by Chronicle; (f) petition for level
to amend filed April 28, 1971, by Chronicle; (g) motion to correct transcript
and an erratum thereto filed June 21, 1971, and May 26, 1972, respectively, by
Chronicle; and (h) petition for leave to amend and the accompanying amendments
to the applications for renewal of licenses for broadcast stations KRON-FM and
KRON-TV filed October 19, 1972, by Chronicle.
Renewed Motion to Disqualify
Commissioner Johnson
4. We shall consider first
Chronicle's renewed motion to disqualify Commissioner Johnson. In order
to place this request in its proper perspective, it is necessary to recount
briefly some of the background of this case. On August 18, 1969,
Chronicle filed a motion asking that Commissioner Johnson disqualify himself
from any further participation in this proceeding or that, if he failed to do
so, the Commission conclude that he was disqualified. In urging the
disqualification by the Commission, Chronicle alleged, inter alia, that
Commissioner Johnson had received prohibited ex parte presentations from
certain interested parties to this proceeding; that he had failed to disclose
such matters in a timely fashion; and that he "has created the appearance
of providing preferential treatment to individuals, of losing independence of
judgment, and of participating in an agency decision outside official
channels...."
5. By Memorandum Opinion and
Order, FCC 69-1311, 20 FCC 2d 33, adopted October 15, 1969, we denied the above
motion. n4
In sum, we held that all of Chronicle's allegations treated together, as well
as separately, did not support its claim for disqualification.
Specifically we held that the receipt of a letter concerning KRON-TV written by
Albert Kihn (a former KRON-TV cameraman) on February 7, 1969, after a petition
to deny the Chronicle renewal application was filed -- but prior to the
designation of the application for hearing -- was not a violation of the ex
parte rules and did not constitute any indication of bias. We also held
that the indication in the Kihn letter that there had been previous
correspondence between himself and the Commissioner raised no further questions
of violations of the ex parte rules or any improper involvement in the case by
the Commissioner. Respecting three letters sent to Commissioner Johnson
from a publisher of a San Francisco publication, we held that such letters
should have been placed in the Commission's public files since Chronicle's
renewal applications had been designated for hearing; that the mere receipt of
such correspondence by the Commissioner was not disqualifying; and that the
Commission's replies thereto did not indicate any improper prejudgement of the
case or other lack of impartiality.
n4 Commissioner Johnson not participating.
6. Finally, we held that
certain of Commissioner Johnson's public statements, including a statement on a
Public Broadcasting Laboratory (hereinafter PBL) program, concerning the need
of the Commission to reply on citizens' complaints, did not indicate bias; that
the Commissioner's publicly expressed views on Commission policy, e.g., the
concentration of control of media of mass communications, do not
[*778] indicate a predisposition of this particular case or any other
wherein such matters are at issue; that any prior involvement by the
Commissioner with certain parties in this proceeding, both prior to and after
the KRON applications were designated for hearing, was perfectly proper and
consonant with, if not required by, the functions of a Commissioner's office;
and that, in view of the foregoing, Chronicle had failed to substantiate its
claim that Commissioner Johnson had either prejudged this case or reasonably
given the appearance of doing so.
7. In urging us to reconsider
our prior rulings respecting the disqualification of Commissioner Johnson,
Chronicle has now filed a renewed motion presenting alleged new facts which
have recently come to its attention. This alleged new information is as
follows: (a) the Commissioner's alleged receipt of further correspondence from
Albert Kihn during the period prior to designation of this case for hearing;
(b) the alleged funding of counsel for parties in this proceeding from the
royalties from one of the Commissioner's books; and (c) the Commissioner's
participation in a PBL program in which Albert Kihn also appeared. n5 We shall first set forth the
substance of these alleged new matters prior to our consideration of
them.
n5 In our opinion a majority of this alleged new information was previously raised by Chronicle in its prior motion and thoroughly considered by us in disposing of that request. However, because of the seriousness of the charges again raised and to be sure that no salient fact has been ignored, we have nevertheless considered all of the contentions raised in the instant motion, even though we may have already stated our views with respect to a major part of them.
8. The Kihn-Johnson
Correspondence. Chronicle points out that the February 7, 1969, letter
from Albert Kihn to Commissioner Johnson referred to previous letters sent to
the Commissioner and to two other letters sent to the Commission concerning
KRON-TV. Chronicle also states that Kihn's testimony at the evidentiary
hearing indicates that he wrote to the Commissioner in 1967 to tell him about
events in the news department of a television station without mentioning the
station by name, and that since the February 1969 letter states that Kihn had
written to the Commissioner a number of time about KRON-TV, the correspondence
between 1967 and 1969 "must have reached a significant volume in order to
familiarize Commissioner Johnson with the place of Kihn's employment and the
identity o the station...." According to Chronicle, Kihn also testified
before the Commission that he had written letters to the Commission, or its
members, or staff, subsequent to the letter of December 22, 1968.
Moreover, Chronicle also alleges that the Kihn-Johnson correspondence was not
one-way because Kihn testified that he received replies to his letters to the
Commissioner, although he refused to make them available. Chronicle also
states that the Kihn letter of February 1969 indicates that the material he
sent to Commission on December 22, 1968, was the same as the material
previously sent to Commissioner Johnson; that this same letter also mentions
that Kihn is still working on his study of TV; and that the mentioning of these
matters for the Commissioner's benefit tends to indicate that there were other
letters from Kihn to the Commissioner.
9. The "Funding" of
Complainants' Counsel. According to Chronicle, the new information that
has come to its attention in this respect [*779] is a letter to the
editor of a magazine written by Mr. Robert Manning of The Atlantic
Monthly. Chronicle points out that in this letter it is specifically
stated that there is a provision in Commissioner Johnson's contract with the
publishers of his book ("How to Talk Back to Your Television Set")
that the royalties derived therefrom shall be distributed to an entity or
entities devoted to the improvement of American television and that the
publishers decided to distribute the first accrued income to the Citizens
Communications Center of Washington (hereinafter Center). According to
Chronicle, the publishers' decision to select the Center as a recipient of such
royalties is readily understandable and is entirely consistent with
Commissioner Johnson's oft-spoken and written views that he would subscribe to
the publishers' determination that the Center is an organization devoted to the
improvement of American television. Moreover, Chronicle also points out
that Commissioner Johnson has done nothing since the disclosure of his
financial support of the Center in April and May of 1971 to suggest the
contrary. Chronicle also points out that the Center has served as counsel
to Complainants Kihn and Streeter in this proceeding.
10. The PBL Appearance.
Chronicle submits that in a PBL program of February 16, 1969, Albert Kihn
discussed both his complaints concerning the KRON-TV news operation and his
writing to the Commission about them, and that on this same program there was
also interspersed a comment by Commissioner Johnson in which he stated that the
Commission is "very much dependent upon complaints and statements that are
filed by private citizens" since this is the only way such information
would come to the Commission's attention. Essentially, it is Chronicle's
position that the Commissioner's comments on this PBL program indicate the
Commissioner's familiarity with this case and were obviously in reference to
this case. In this vein, Chronicle points out that the taped interview
with Kihn for the program must have taken place prior to January 6, 1969, since
Kihn left the station on that date and since the PBL announcer referred to Kihn
as working for KRON-TV at the time his interview was recorded. This being
the case and since there is no indication that Commisioner Johnson taped his
interview before the Kihn tape, Chronicle asserts it is reasonable to infer
"that the Commissioner was a aware of the Kihn interview and that he used
it as a springboard for his own remarks." Even more significant, says Chronicle,
is the fact that Commissioner Johnson had already seen Kihn's first letter of
September 8, 1968, thus indicating that the Commissioner's statement on the
broadcast may have been "a direct reflection of his interest in the
complaint letter of September 8 filed by Kihn." Finally, Chronicle notes
that Kihn testified at the hearing that the PBL people told him that they had
gotten a copy of his letter and that, based upon this letter, they invited him
to appear on their program. Chronicle therefore infers that the
Commissioner furnished the Kihn letter to the PBL researchers. n6
n6
Chronicle also asserts that another reasonable inference is that the
Commissioner knew some of his remarks would be interpolated within those of
Albert Kihn.
11. Essentially, it is Chronicle's
position that the above alleged matters, when considered together, tend to form
a picture of at least an apparently [*780] improper
"involvement" in the case by the Commissioner and also tend to show
that he "has become so involved in this matter as to create the appearance
of a personal interest." n7 We disagree. All of the matters set forth above together with
those alleged by Chronicle in its previous motion which will not be reiterated
here, do not warrant the disqualification of Commissioner Johnson. Merely
because Chronicle believes that it has now shown that Albert Kihn must have
written to Commissioner Johnson a number of times prior to his letter of
February 7, 1969, n8 and that the Commissioner responded thereto, adds nothing to what was
before us at the time of Chronicle's previous motion; nor would it require us
to arrive at a different determination herein. In its previous motion,
Chronicle pointed out that Kihn's February 7, 1969, letter to the Commissioner
indicated that Kihn had written a number of times about KRON-TV and that
"more important, the tone of the letter as a whole contains clear
indications that the correspondence was not all one-way." This
correspondence, and the Commissioner's failure to release it, was the basis for
a claim in the first disqualification motion of apparent partiality, as well as
a claim concerning an alleged violation of the ex parte rules which is not now
renewed. At that time, we rejected the claim of partiality on the grounds
that it was perfectly proper for a Commissioner to receive and consider
complaints about station operation and that such correspondence need not be
placed in a public file. The "newly discovered" facts that Kihn
may have begun his correspondence in 1967, that he taped conversations with
fellow employees, and that he used these tapes in preparing his letters, add
nothing of significance to the material previously considered by us.
n7 The
Chronicle motion also refers to certain peripheral matters which add nothing of
significance to its basic point. Thus, it relates that Albert Kihn in
June 1967 began to tape conversations with employees and former employees of
KRON-TV; that Kihn gave a copy of his complaint letter of September 8, 1968, to
Mr. Bruce Brugmann, publisher of the Bay Guardian; that Mr. Burgmann made use
of it in an article and also wrote to Commissioner Johnson (this correspondence
was considered in our earlier opinion); that in a thesis for a graduate degree
the writer (who studied at the school where Mr. Brugmann taught) referred to
the Kihn and Streeter complaints and stated: "At least one FCC
Commissioner is also interested in the KRON television operation." and
that the writer of this thesis relied on the Guardian article for material
(this thesis was also previously considered by us in our earlier opinion, see
20 FCC 2d 37, note 6).
n8 Kihn's
hearing testimony that he wrote one letter to Commissioner Johnson and that he
might have written other letters, when asked if he had any communications with
the Commission or any of its members or staff subsequent to his letter of
December 22, 1968, is at best ambiguous and does not, in our opinion, establish
that there was in fact a further correspondence with the Commissioner.
12. One further matter with
respect to the Kihn-Johnson correspondence warrants brief comment. In
again bringing these matters to our attention, Chronicle has indicated that
there seems to be a continuing reluctance (apparently on the part of the
Commission) to reveal this correspondence. Chronicle has not indicated
the basis upon which it arrived at such a supposition, nor can we reasonably
surmise any. In our earlier opinion disposing of Chronicle's previous
motion, we specifically apprised Chronicle that any complaint letters which may
warrant an investigation "will be made available for public inspection
under certain conditions upon request when it is determined that no
investigation is to be conducted or when the investigation is completed."
(20 FCC 2d at 35; see also Section 0.457(g) of the Commission's Rules).
The Commission to this date has not received any such [*781]
requests from Chronicle, and we do not agree with Chronicle's supposition that
merely because such materials have not been made public by the Commission, they
must necessarily contain disqualifying matters. n9 Chronicle on the one hand refrains
from making a direct request, and thus deprives the Commission of an
opportunity to consider such request on its merits, to see non-public material
contained in the Commission's files to support its allegations, and then, on
the other hand, relies on the Commission's failure to make such matters public
as an indication that the material does in fact contain disqualifying
statements. We do not believe that this is a valid approach or that it
raises any substantial issue of disqualification.
n9 By letter of May 16, 1969, to the Executive Director of the Commission, Chronicle did request all correspondence received by the Commission concerning KRON-TV after the proceeding became restricted. At no time has Chronicle requested letters going back to 1967.
13. Chronicle's contentions
with respect to the disbursement of the royalties from Commissioner Johnson's
book similarly present no basis for disqualification. The significant consideration
here, we believe, is that the Commissioner turned over to his publishers
absolute discretion with respect to the use of the royalties under a standard
so broad that it cannot reasonably be suggested that he was indicating any
preference for any possible recipient. Moreover, we find no merit to
Chronicle's assertion that Commissioner Johnson is in actuality funding the
Citizens Communications Center since that organization is one of the recipients
of the royalties from his book. He was not consulted on the publisher's
decision to make payments to the Center and has given no indication of improper
partiality toward that organization. Whether or not the Commissioner
believes the award to be a sound one is, in our opinion, an exercise in mere
speculation which has no place in the resolution of the serious charges here
advanced.
14. Chronicle's remaining
alleged new information revolves about the PBL program in which a brief
statement by the Commissioner, separately recorded, was interpolated by the
producers within a discussion by Albert Kihn. n10 In our opinion, the Commissioner's
statement raises no possible issue of bias, and its use with the Kihn interview
is similarly of no significance since it was the producers of the PBL program
and not the Commissioner who made the interpolation. In any event, the
Commission receives many letters of complaint from the public, and as the
Commissioner pointed out in his comments, this agency is very much dependent
upon such complaints in the proper discharge of its regulatory functions.
Moreover, the Commissioner's comments in this respect were most general and
expressed no view, directly or by inference, upon the merits of the Kihn
complaint. They were instead merely a reiteration of the Commissioner's
oft-spoken and well known view that citizens complaints may be of considerable
value to the Commission.
n10 In our first opinion, we stated that the Commissioner's appearance was "apparently" recorded on a separate occasion and inserted in Mr. Kihn's remarks without the knowledge of the Commissioner. He has confirmed that this was the case.
15. In view of the foregoing,
we shall not attempt to determine whether or not the Commissioner's taped
comments were recorded prior to or after Kihn's interview or whether or not the
Commissioner's [*782] comments were motivated by and/or in response
to Kihn's complaint and statements with respect to KRON-TV. Here again,
Chronicle would have us engage in both an exercise of surmise and a probe of the
Commissioner's mental processes. Such procedures are totally uncalled for
based on the facts before us.
16. In addition to the above,
Chronicle also points out that since our decision on its previous motion, the
United States Court of Appeals in Cinderella Career and Finishing Schools, Inc.
v. Federal Trade Commission, 425 F. 2d 583 (D.C. Cir. 1970), has specifically
delineated the well established test for disqualification and submits that in
light of this decision, we "must reconsider and weigh the facts set forth
in both this and the previous petition". According to Chronicle, the
test of disqualification as stated by the Court in the Cinderella case is
whether a disinterested observer may concluded that in some measure the facts
as well as the law have been adjudged in advance of the hearing.
Chronicle also notes that an administrative hearing, as the Court pointed out
in the Cinderella case, must be attended not only with every element of
fairness but with the very appearance of complete fairness. We agree that
the Cinderella decision reiterates the well-established law for
disqualification. Indeed, we decided Chronicle's previous motion under
the same standard, stating that the pertinent issue was whether Commissioner
Johnson had "formed an opinion prior to decision as to the facts or
outcome of this case, closing his mind to persuasion, or has reasonably given
the appearance of doing so." (See 20 FCC 2d at 38.) Thus, we find no
reason to reconsider our prior determinations with respect to Chronicle's previous
motion simply because of the Court's pronouncements in the Cinderella case.
17. In sum, all of the facts
alleged by Chronicle do not warrant the disqualification of Commissioner
Johnson, whether considered alone or together with the facts alleged in
Chronicle's previous motion. Indeed, we are convinced that nothing before
us suggests that Commissioner Johnson has not remained an impartial member of
this Commission. Accordingly, the renewed motion to disqualify
Commissioner Johnson will be denied.
Hearing Examiner's Initial Decision
18. In order to place the
Complainants' exceptions in proper context, we believe that a brief summary of
the Examiner's Initial Decision is necessary. Concerning hearing Issue 1,
the concentration of control issue, the Examiner concluded that although the
Chronicle interests amount to a powerful voice in the San Francisco area, all
segments of Chronicle's media holdings face extensive competition. In
this respect, the Examiner found that the record evidence reveals that of Chronicle's
total potential audience only about one-half actually listened to any of its
broadcasting voices; that only one in ten are exposed exclusively to the
Chronicle outlets; and that the combined advertising revenues of both the
Chronicle broadcasting stations and the newspaper amount to 7-8% of the total
monies devoted to advertising in the area. Moreover, the Examiner
concluded that the record fails to establish that Chronicle "even attempts
to speak with a single voice..." or that [*783] the owners of
the Chronicle properties have a greater concentration of media control than
exists in numerous other cities.
19. Regarding hearing Issue 2,
the anti-competitive practices issue, the Examiner concluded that the record
evidence reveals that all of the San Francisco papers sustained losses as a
result of the public's nationwide move from the cities to the suburbs during
the period 1954-64; that while competing vigorously, Chronicle was the
"least unprofitable" of the San Francisco papers and was able to stay
in the black only due to the substantial profits generated by KRON-TV; that
while substantial sums were spent by both Chronicle and the Examiner (San
Francisco's other daily newspaper) for promotional campaigns during this
period, both papers continued to lose money; and that the record fails to
establish that Chronicle's practices during this period were in any way unusual
or unfair, or that the profits from KRON-TV were devoted to financing any
improper competitive procedures.
20. With respect to the Chronicle-Examiner
joint operating agreement, the Examiner found from the evidence of record that
the Hearst Corporation (owner of the Examiner and the News Call Bulletin)
initially confronted Mr. Charles deYoung Thieriot (who was then Chairman of the
Board of the Chronicle Broadcasting Co. and also President and Director of
Chronicle Publishing Co.) with a proposal to enter into a joint operating
agreement for the San Francisco papers; that Mr. Thieriot was receptive to such
a proposal; that the parties thereafter entered into a joint operating
agreement which created the San Francisco Newspaper Printing Company to handle
the mechanical, advertising, business and circulation affairs of the San
Francisco papers; and that such agreement provided, inter alia, that the joint
newspaper printing company would pool all of the revenues of the two papers,
pay all of the costs of both papers, retain 5% of any excess of its
compensation, and distribute any remainder to the two papers in equal
shares. In respect to the above, the Examiner concluded that despite
whatever antitrust arguments might be made as to the current propriety of the
Chronicle-Examiner joint operating agreement, the Newspaper Preservation Act
(15 U.S.C. � 1801) refutes these arguments and also establishes the
legality of such agreements. However, the Examiner further concluded that
this Act does not answer the Commission's public interest questions concerning
such joint operating agreements. In this regard, the Examiner noted that
prior to entering into the joint-operating agreement, Mr. Thieriot insisted on
a "Business Review Letter" n11 from the Department of Justice; that Mr. Thieriot
acted responsibly in this respect; and that, consequently, the qualifications
of Chronicle to be a Commission licensee are not called into question.
The Examiner also concluded that it was not demonstrated on the record that the
functioning of the Chronicle-Examiner joint operating agreement had any adverse
effect upon the public interest considerations with which [*784]
the Commission was concerned when it designated this issue for hearing.
n11 Under certain circumstances the Department of Justice will review a given factual situation and provide a letter stating that it has no present intention of initiating antitrust action under the circumstances in question.
21. With respect to hearing
Issue 3, the news management issue, the Examiner concluded that, according to
the Commission's specification order (cited supra), this issue does not pertain
to the fairness or quality of KRON's programming, but rather to whether such
programming was governed by self-interest. The Examiner also pointed out
that, although to some extent improper motives can be inferred from program
content, for the Commission to rely primarily on content would be to act the
role of a censor and that, therefore, any "adverse conclusions under this
issue are to be reached only if KRON's improper motives have been established
by the most clear, convincing and unambiguous evidence." In reaching his
decision, the Examiner concluded that such evidence had not been adduced under
this issue.
22. With respect to the
allegations that the facilities of KRON-TV were used to enhance Chronicle's
CATV interests, the Examiner's findings revolved around three incidents: a
documentary about the city of Vallejo, California; coverage of the San Carlos,
California, "Chicken's Ball"; and coverage of a library dedication in
South San Francisco.
23. Concerning the Vallejo
incident, the Examiner found that the record evidence reveals that at a
"community luncheon" Mr. Harold P. See (then President and
Director of Chronicle), at the suggestion of city officials, decided to explore
the concept of a KRON-TV documentary on the Vallejo area. Thereafter, See
assigned a reporter to the project who wanted to do an expose type program but
was told by See, and the reporter so testified, that an expose was unsuitable
because it might jeopardize Chronicle's CATV interest in the area. In his
hearing testimony, See denied having said this is or even discussing the
program with the reporter after the latter's return from Vallejo. In
evaluating the above testimony, the Examiner concluded that the reporter's
recollection was "dim" and that all available evidence, although
inconclusive, supported See's version of facts. Thus, the Examiner
concluded that a finding adverse to Chronicle was not warranted with respect to
this incident, since there was absolutely no evidence of record indicating that
CATV considerations motivated KRON-TV's carriage of this program.
24. With respect to the San
Carlos "Chicken's Ball," a biennial fund raising project of the
area's PTAs and an event which KRON-TV had covered in past years, the Examiner
found that the record evidence shows that a postscript to a letter to the mayor
of San Carlos regarding a CATV applicant emphasized the connection between KRON
and the CATV applicant by mentioning that Mr. See had promised to cover the
Ball in color on KRON-TV; that the evidence also shows that See had been appointed
as a judge of the skits to be presented at the Ball; that the KRON news
director acted as the reporter for the event and also assigned two cameras
thereto; that when questioned by the KRON assignment editor and a cameraman
about the generous facilities utilized for an event "of marginal
interest", the news director "responded that the coverage was
relative to the seeking of a CATV franchise in that area"; that on
February 18, 1968, a half hour [*785] program of this event was
shown on KRON-TV; n12 and that, shortly thereafter, the San Carlos CATV franchise was awarded
to one of Chronicle's competitors. The Examiner concluded that the weight
of all the evidence developed in this respect does not warrant a conclusion
that the KRON-TV coverage of the San Carlos "Chicken's Ball" was
influenced by Chronicle's interest in CATV in that city.
n12 The Examiner found that previous coverage of the Ball consisted of 3 min. 50 sec. (1962), 8 min. 5 sec. (1964), and 4 min. 10 sec. (1966).
25. Concerning the coverage of
the South San Francisco library dedication, the Examiner found that the
evidence of record developed in this regard shows that after a conversation
between See and the KRON news director, a memo from the news director was sent
to the KRON assignment editor which stated that See wanted to pay increased
attention to South San Francisco and wanted a library dedication there covered;
that when the assignment editor questioned this, the news director explained
that See had ordered the coverage because of Chronicle's CATV interests in the
area; that in another memo, the KRON news director wrote that "[See] wants
to make sure that the mayor of SOUTH SF is prominent in any film we do!";
that, shortly thereafter, the dedication ceremony was covered by KRON-TV, but
the bulk of the film was ruined in the lab and the salvaged portion, about 30
seconds' worth, was shown twice; that See wrote a letter to the mayor of South
San Francisco explaining the diminished coverage; and that although both See
and the KRON news director denied that CATV considerations played a role in the
coverage of the dedication, See nevertheless admitted that such considerations
may have motivated his explanatory letter to the mayor, since Chronicle's CATV
application had emphasized KRON's technical expertise. The Examiner
concluded that the coverage of the library dedication, including the customary
attention paid to political notables present at the occasion, was
routine. Notwithstanding See's instructions to pay particular attention
to South San Francisco, the Examiner stated that "there is no strong
evidence linking this to the CATV applications."
26. Concerning the statements
that were attributed to KRON's middle managers that certain stories should be
covered to advance Chronicle's CATV interests, the Examiner found that the
"in" joke among KRON's employees at that time was to explain any
undesired assignment as a reflection of the company's pursuit of CATV
interests. In this vein, the Examiner concluded that there was no
evidence that any of these middle managers were ever told by their superiors to
base their decisions with respect to KRON-TV programming on Chronicle's CATV
interests. Hence, what everybody "knew" turned out to be
"wholly lacking in demonstrable factual foundation," the Examiner
concluded. The Examiner also concluded that the testimony of See and
Thieriot showed them to be "practical and realistic"; that their
testimony completely refutes the statements of certain KRON employees
concerning the coverage of these events; that there is no evidence of record to
cast doubt upon their veracity; and that in [*786] weighing all the
evidence bearing on this matter, it is not unreasonable to attribute the
conflicting testimony to a misunderstanding between a superior and an employee
concerning a given assignment.
27. With respect to
Chronicle's coverage of labor disputes, the Examiner concluded that they had
been "balanced." Although there were disputes between newsman and
supervisors over certain incidents, the Examiner found that the evidence did
not indicate that the KRON programming was designed to favor management.
Finally, taking all of the incidents bearing on this issue, the Examiner
concluded that no pattern emerges, and "no judgment is shown to have been
made for the purpose of serving any express or implied policy to slant or bury
certain news." Although there were instances of KRON employees' awareness
of the effect of their actions on their employer's interest, there was no
showing that KRON's management deliberately fostered such awareness or that it
actually affected news coverage. The Examiner stated: "While such a
climate is undesirable and potentially dangerous, it does not of itself justify
a conclusion that KRON did, in fact, slant news to serve its own interest."
28. Concerning Issue 4, the
Examiner concluded that it was unnecessary to consider evidence of past
programming since such evidence was only to be considered in mitigation of
adverse conclusions under Issues 2 and 3, which were resolved favorably to the
licensee. However, the Examiner commented that the licensee had made a
"sincere and substantial" effort to serve the needs of its audience
and, if the conclusions on Issues 2 and 3 were in need of mitigation, KRON's
evidence of past programming would be entitled to "not insignificant"
weight to that end.
29. Lastly, with respect to
Issue 5, the investigative issue, the Examiner found that the evidence
establishes that upon learning of Complainants' letters to the Commission,
KRON's general counsel advised See to undertake an investigation; that See
concurred in this suggestion, and that the general counsel thereafter employed
an investigative firm which he considered the "most able and
discreet" in the city; that Kihn was placed under surveillance for 28 days
during 1968 and 1969; n13 that the investigators conducting this surveillance utilized
automobiles to observe Kihn's home and movements, recorded the license plate
numbers of persons with whom Kihn came in contact and ascertained their
identities through the Motor Vehicle Bureau; that although Kihn was not aware
that he was under observation, his neighbors were and had complained twice to
the police; and that eventually Kihn discovered that he was being followed and
the investigators were instructed to discontinue the surveillance. n14
n13
Streeter was not placed under surveillance.
n14 Also
placed under surveillance was an editor of a San Francisco newspaper after he
visited KRON's offices to inspect the station's renewal application. This
visit, together with reports that a competing application was about to be
filed, aroused KRON's suspicions that there might be connections between Kihn
and such an applicant.
30. The Examiner's findings
further reveal that after the designation of this proceeding for hearing,
KRON's attorneys decided to order a further investigation of Complainants Kihn
and Streeter so that information could be developed for cross-examination
purposes; that this [*787] subsequent investigation was conducted
by the same investigative firm and consisted of interviewing persons who might
have knowledge of the Complainants; that the investigators performed the
investigation under the guise of conducting a check on both Kihn and Streeter
for a potential employer; that more than 50 persons were interviewed; and that
ultimately both Kihn and Streeter learned of these interviews. The
Examiner's findings also reveal that the investigators employed the technique
of undercover contact -- that is, becoming friendly with Kihn, his wife, a
close friend, and an editor who had looked at the KRON renewal
application. The investigation was discontinued following the pre-trial
depositions of Complainants. A total of 1,426 1/2 hours was devoted to
the case by the investigating firm.
31. The Examiner concluded
that neither "the decision to investigate or the conduct of the
investigation was unreasonable or malicious, or had the design or effect of
chilling citizen complaint to the Commission." With respect to the earlier
aspects of the investigation (i.e., surveillance of Kihn), the Examiner found
the conduct of the investigators to be discreet and, since the surveillance was
discontinued as soon as Kihn discovered it, concluded that it was not intended
to harass or discourage Kihn from "pursuing his objective."
Similarly, the Examiner concluded that the subsequent aspects of the
investigation did not discredit KRON since none of the data obtained was
permitted to become public. In conclusion, the Examiner stated that KRON
did no more than has been long recognized to be proper for a litigant in an
American trial and that the investigation did not constitute an attempt to
harass, coerce or intimidate the Complainants or anyone else.
Complainants' Principal Exceptions
to the Initial Decision
32. Burden of Proof.
Complainants first claim is that the Examiner erroneously placed the burden of
proof upon them. Regarding Issue 3, the news management issue,
Complainants allege that the Examiner exhibited a "curious
neutrality" in favor of Chronicle when he stated that "... adverse
conclusions under this issue are to be reached only if KRON's improper motives
have been established by the most clear, convincing and unambiguous
evidence." Thus, Complainants argue that the Examiner has, in effect,
ruled that if the evidence is conflicting (i.e., ambiguous) on an issue, it
must be resolved in favor of Chronicle and, accordingly, he has required them
to prove their charges beyond a reasonable doubt. Complainants further
submit that the parallel between the burden of proof question in this case and
that in the second United Church of Christ case is "striking".
Office of Communication of the United Church of Christ v. Federal
Communications Commission, 425 F. 2d 543 (D.C. Cir. 1969). Complainants also
claim that the Examiner's failure to give "probative weight" to the
admissions of KRON employees, which related to KRON's programming allegedly
designed to enhance Chronicle's CATV interest, simply because he found those
employees to be without "actual knowledge" of the truth of those
statements, is totally without support in the law. [*788]
According to the Complainants: "The general rule of law is that
declarations of an employee or agent made during the course and scope of that
agency are binding on the principal." Moreover, Complainants state that
since the KRON employees did, in fact, present news and public affairs programs
in a certain manner because they thought management wanted it that way,
Chronicle must be held responsible for its employees' motives. United
Broadcasting Co., 23 FCC 2d 493 (1970); Regal Broadcasting Corp., 27 FCC 2d
694, 695 (1971). If those motives cannot be attributed to Chronicle,
Complainants urge that Chronicle nevertheless failed to supervise its employees
and maintain control of its station and thus failed to operate in the public
interest. The Court House Broadcasting Company, 21 FCC 2d 792 (1970).
Finally, Complainants allege that the Examiner's First Amendment rationale for
imposing a higher burden of proof on them on the news management issue simply
because the Commission eschews the role of a censor is unpersuasive.
According to the Complainants, the alleged management of news programs is in
the realm of "commercial" speech rather than "political" or
"social" speech and as such is not protected by the First
Amendment. Thus, Complainants conclude that they have been deprived of a
fair hearing by the Examiner's state of mind toward the burden of proof.
33. The Joint Operating
Agreement, Concentration of Control, and the Newspaper Preservation Act.
Complainants claims that, when entered into, the joint operating agreement
between the Hearst Corporation and The Chronicle Publishing Company was illegal
as a matter of law, citing United States v. Citizen Publishing Co., 394 U.S.
131 (1969). Complainants alleged that the anti-competitive controls imposed by
the newspapers involved in the Citizen case were all present in this case,
i.e., price fixing, pooling of profits pursuant to an inflexible ratio, and an
agreement not to engage in any other publishing business in a geographical
area. Such conduct, Complainants state, is in blatant violation of the
antitrust laws, is as anti-competitive as a matter of law as was held to be the
situation in the Citizen case, and reflects adversely upon Chronicle's
character to be a Commission licensee.
34. Complainants also allege
that the Examiner erred in failing to apply standard anti-merger law to find
that the combination of the Hearst-Chronicle interests is San Francisco
constituted an undue concentration of control of the communications media and
that Hearst and Chronicle effectuated a horizontal merger within the overall
relevant market (i.e., the entire "communications media").
Moreover, Complainants state that the standards established by the Supreme
Court in prior horizontal merger cases n15 were violated by the Hearst-Chronicle joint
operating agreement and that such agreement also created an undue concentration
of control in the communications media as prohibited by Section 7 of the Clayton
Act, 15 U.S.C. � 18. In this connection, Complainants contend that the
Examiner erred in utilizing [*789] the entire nine-county San
Francisco Bay Area as the relevant geographic market for evaluating the
concentration of control issue.
n15 Complainants cite: Brown Shoe Co. v. United States, 370 U.S. 294 (1962); United States v. Philadelphia National Bank, 374 U.S. 321 (1963); United States v. Aluminum Co. of America, 377 U.S. 271 (1964); United States v. Von's Grocery Co., 384 U.S. 270 (1966); and United States v. Pabst Brewing Co., 384 U.S. 546 (1966).
35. Complainants also aver
that there is no evidence that the Newspaper Preservation Act is applicable
since it has not been demonstrated on the record that any of the San Francisco
papers was a "failing newspaper" within the definition of that Act or
that the Examiner (San Francisco's other daily newspaper) was unlikely
"... to become a financially sound publication." In addition,
Complainants claim that the Newspaper Preservation Act was not intended to
apply to a newspaper which also had other media interests, but was instead
intended to broaden the "failing company" doctrine, i.e., to include
a newspaper division of a healthy company where the newspaper was in probable
danger of financial failure although the company was healthy.
36. News Management and
Slanting. Complainants allege that the Examiner erred in isolating and
evaluating each separate instance of alleged news management and
slanting. According to the Complainants, the Examiner obscured and
distorted the overall picture in evaluating the record evidence in such a
fashion. Furthermore, Complainants aver that the Examiner nowhere
analyzed this overall picture. Complainants cite Miami Broadcasting
Corporation, 19 FCC 2d 651 (Rev. Bd. 1969), wherein the Review Board,
disagreeing with the Hearing Examiner's ultimate approach, found that he erred
in considering each factual question separately and resolving each in favor of
Miami. Quoting from The Walmac Co., 36 FCC 507, 508 (1964), the Board
stated: "Isolating and evaluating each of the items in this fashion
obscures and distorts the overall picture. Nowhere does the Examiner
consider altogether the collective effect of all the * * * information * * *
and * * * explanations thereof * * *". The procedure objected to in
Miami, Complainants argue, is precisely the procedure the Examiner followed
here, i.e., taking each item of alleged news management, analyzing it
separately, and ruling on each in favor of Chronicle.
37. Complainants also claim
that the Examiner failed to consider the overall approach to KRON's
programming, which was "making friends in the community." To this
end, Complainants submit, that Mr. Harold P. See inaugurated a "community
luncheon program" which was intended to create a public service image for
the station. Complainants indicate that all of the important people in
the community were invited to these luncheons, which were also attended by the
"entire upper station management" of KRON; that Mr. See arranged such
luncheons so that he could discover the "pet projects" of the
community leaders and design broadcast to satisfy them; and that the sole
purpose of these luncheons was to enhance the station's competitive position
when it later sought CATV franchises in those communities. n16 Complainants also state that the
above community luncheon [*790] program was instituted by Mr. See
at a time contemporaneous with Chronicle's interest in CATV; that a clear
pattern thus emerges of a bold, pervasive public relations effort, dedicated
and conceived in the early 1960's, to utilize the facilities of KRON-TV to
assist in obtaining cable television franchises for the Chronicle interests;
and that, as a result thereof, Chronicle has succeeded in becoming the second
largest cable television franchise holder in the Grade B contour of
KRON-TV.
n16 Complainants suggest that these public relations efforts took a variety of forms. In Vallejo, Mr. See allegedly followed every program suggestion made by the Mayor at a community luncheon and made a documentary emphasizing the positive aspects of the area, although the writer wanted to tell the "true story" of the political turmoil in the area. In South San Francisco, the day after Chronicle's board of directors had discussed the expenditure of $600,000 for a CATV franchise, Mr. See instructed his news director to broadcast anything newsworthy that came up in that community. In San Carlos, Mr. See ordered the "Chicken's Ball" to be filmed in color because all of the community leaders would be there and because it would enhance KRON's public relations image.
38. Complainants also allege
that when KRON-TV has been called upon to cover a newsworthy labor dispute and
where the news story surrounding such an event is related to matters
conceivably adverse to the public relations and/or business interests of
Chronicle, there has been a clear pattern on the part of the station to provide
either non-carriage or late carriage.
39. The Investigative
Issue. Complainants allege that the Examiner erred in absolving the
licensee of any liability for the acts of the investigating firm.
Complainants assert that the KRON investigation of them was accompanied by
fraudulent conduct, was admittedly done under subterfuge and misrepresentation,
and was intended to intrude unreasonably into their private personal lives for
the sole purpose of eliciting information which could be used by Chronicle to
dissuade the Complainants from further participation in this litigation.
Complainants claim that such investigative conduct is illegal under California
law. n17
Moreover, in their invasion of privacy cases now pending against the
investigating firm, the Complainants emphasize that the California courts have
held that they have stated causes of action for invasion of privacy. n18
n17 Complainants cite: California Business and Professions Code � � 7528(b) and 7551; Wayne v. Bureau of Private Investigators and Adjusters, 201 Cal. App. 2d 427, 20 Cal. Rptr. 194 (1962); Taylor v. Bureau of Private Investigators and Adjusters, 128 Cal. App. 2d 219, 275 P. 2d 579 (1954); Carmona v. Keller, L.A. Superior Court, EAC 5881; and Carmona v. Transport Indemnity, L.A. Superior Court EAC 6659.
n18 Complainants point out that the
trial court in the Kihn case expressly followed Nader v. General Motors
Corporation, 25 N.Y. 2d 560, 255 N.E. 2d 765 (1970), in recognizing the tort of
unreasonable intrusion into a person's private personal life.
40. It is also Complainants'
position that Chronicle is clearly responsible for the actions of the
investigators, particularly since Chronicle knew that the investigators'
improper conduct was taking place, authorized and paid for the investigation
and reaped the benefits therefrom. In support of this position,
Complainants cite Van Arsdale v. Hollinger, 68 Cal. App. id 245, 66 Cal. Rptr.
20, 437 P. 2d 508 (1968), and state that the California Supreme Court held
therein that the exceptions to the general rule of non-liability for the torts
of an independent contractor are numerous and that such rule is applied only
where no good reason is found for departing from it. In view of the
foregoing, Complainants conclude that contrary to the Examiner's determination,
the Chronicle investigation of them was clearly a device to harass, coerce and intimidate
and is not the type of conduct in which Commission licensees endowed with a
public trust should engage.
CONCLUSIONS
41. The findings and
conclusions contained in the Examiner's Initial Decision have been fully
reviewed in light of the arguments urged [*791] by the parties in
the pleadings now before us. In our opinion those findings and
conclusions represent a fair and reasonable interpretation of the record
evidence compiled in this case and, accordingly, they are adopted except as
modified in this Decision and in the rulings on the exceptions as set forth in
the Appendix. We shall now consider the Complainants' principal arguments
in the same order as they have been set forth.
42. Burden of Proof.
Complainants' arguments in this respect center primarily around the Examiner's
treatment of the record evidence developed under Hearing Issue 3, i.e., whether
Chronicle used its broadcast facilities to manage or slant the news and public
affairs for the purpose of advancing the interests of its parent company, The
Chronicle Publishing Company. In designating this hearing issue, we
placed the burden of proceeding with the introduction of evidence on
Complainant Kihn and the Broadcast Bureau and the burden of proof on
Chronicle. n19 In so allocating the evidentiary burdens (particularly the burden of
proof) under this hearing issue and others so designated, we concluded that a
departure from the Commission's general practice in this area n20 was justified because of the factual
situation of this case, i.e., the principal facts surrounding Chronicle's
alleged misconduct were peculiarly within its knowledge since those facts
concerned the use of Chronicle's broadcast facilities. n21
n19
Section 309(e) of the Communications Act of 1934, as amended (47 USC �
309(e)), sets forth the governing standards for allocating evidentiary burdens
in a proceeding such as this one. In pertinent part, that section states:
"The
burden of proceeding with the introduction of evidence and the burden of proof
shall be upon the applicant, except that with respect to any issue presented by
a petition to deny or a petition to enlarge the issues, such burden shall be as
determined by the Commission."
As is
readily apparent from the above, the Commission's discretionary powers in this
respect are broad so that proceedings before it may be conducted in such a
manner as will best serve the ends of justice (Section 4(j) of Act, 47 U.S.C.
� 4(j)). The above enabling statute is also reflected in Section
1.254 of the Commission's Rules (47 C.F.R. � 1.254).
n20 In D
and E Broadcasting Co., 1 FCC 2d 78, 5 RR 2d 475 (1965), the Commission
outlined its policy on burden of proof questions and stated, inter alia, the
following:
"Generally speaking, when hearing issues involving serious misconduct are designated as the result of a petition to deny or a petition to enlarge issues, the burden of proceeding with the evidence and the burden of proof will be placed upon the party making the charges. We recognize that there may be cases in which departure from this general practice may be justified." 5 RR 2d at 478.
n21 Cf. Elyria-Lorain Broadcasting Co., 6 RR 2d 191 (1965), and Washington Broadcasting Co., 3 FCC 2d 777, 7 RR 2d 601 (1966), where the Commission exercised its discretionary powers in a similar manner by placing the burden of proof on the applicants rather than upon the petitioners.
43. We now turn to the
specifics of the Complainants' arguments. As heretofore summarized, the
Complainants do not question the allocation of the evidentiary burdens among
the parties to this proceeding, but they contend that the Examiner in
considering some of the record evidence has improperly placed the burden of
proof on them rather than on Chronicle. In support of this contention,
the Complainants refer to certain statements n22 made by the Examiner in his Initial
Decision [*792] and submit that these statements show a
predisposition on the part of the Examiner in his treatment of the evidentiary
burdens in this case. The short answer to the above, we believe, is that
a few isolated phrases and sentences extracted from the Examiner's total
analysis of all of the record evidence developed surrounding a given matter are
wholly inadequate to support the serious contentions the Complainants here raise.
Certainly, in the absence of something more concrete, we are not prepared to
say that such statements, in and of themselves, clearly demonstrate the
Examiner's partiality toward Chronicle in his consideration of the record
evidence in this case. In any event, we are convinced that in every
instance the particular statement relied on by the Complainants is, in essence,
language clearly taken out of context. For instance, Complainants allege
that the Examiner improperly placed the burden of proof on them and also
required them to prove their allegations beyond a reasonable doubt when he
stated that adverse conclusions under Hearing Issue 3 are to be reached only if
KRON's improper motives have been established by the most clear, convincing and
unambiguous evidence. However, the Examiner's complete statement in this
respect is as follows and does not, in our opinion, suggest what the
Complainants contend.
n22 Complainants contend that the following statements clearly show the Examiner's state of mind toward the burden of proof: (a) in paragraph 253 of the Initial Decision, the Examiner stated "... adverse conclusions under this issue are to be reached only if KRON's improper motives have been established by the most clear, convincing and unambiguous evidence"; (b) in footnote 35, at page 23 of the Initial Decision, the Examiner stated "... Such a showing does not convince the Examiner that the sole or primary cause of the cessation of the business was the increase in advertising rates"; and (c) in paragraph 107 of the Initial Decision where the Examiner considered certain evidence regarding statements by the KRON management employees and where he held that such statements "... were received in contemplation of further evidence either that they were based on knowledge or could be presumed to be so based... the Examiner now regards them as without probative weight". In the interest of brevity, we have not attempted to list all of the Examiner's statements upon which the Complainants reply. We have, nevertheless, thoroughly considered all such matters in reaching our decision.
In its Specification Order released
April 23, 1969, the Commission emphasized that this issue did not contemplate a
generalized examination of KRON'S PROGRAMMING TO SEE IF IT WAS FAIR.
Rather the inquiry was initiated 'because of the presence of outside business
interests and specific allegations that the preparation of programs has been
deliberately made compatible with those interests'. That is to say, the
judgment, in this instance, is not of the content of programming per se.
It is of the motives which underlay the presentation of that programming,
specifically whether it was governed by self-interest.
Such motives can, of course, be
inferred from program content. However, if program content is the sole or
primary evidence relied upon, the Commission would, in effect, be placed in the
role of a censor imputing improper motivation for programming of which it
disapproves. Since the Examiner is aware that the Commission eschews such
a role, he believes that adverse conclusions under this issue are to be reached
only if KRON's improper motives have been established by the most clear,
convincing and unambiguous evidence.
No such evidence has been
adduced. To a tiny core of incidents not inconsistent with guilt has been
added a welter of rumor, innunendo, suspicion, and office jokes... [The
Examiner next proceeds with a lengthy analysis of some of the incidents which
illustrate his point.] I.D. para. 252-54.
44. Moreover, what the Complainants
fail to point out, and what we have found after our review, is that the
Examiner's conclusions under this hearing issue were based not upon
Complainants' failure to prove their case "beyond a reasonable
doubt," but rather upon the record as a whole and the weight of the
evidence. The Examiner found that the record evidence completely refuted
or explained the Complainants' prima facie showing (see, for example,
paragraphs 113 and 128 of the I.D.). No useful purpose would be served by
further recounting all of the Examiner's complete statements from which the
Complainants have selected portions to support their contentions in this
respect (see footnote 22, supra). For the purposes of this review, we
believe that it is sufficient merely to point out that we have thoroughly
reviewed all such matters and find that these phrases and sentences were
likewise set forth out of context and that the Examiner's complete statements,
from which these quoted matters have been taken, [*793] clearly
demonstrate that the Complainants' contentions are without merit.
45. Equally without merit is
the Complainants' contention that the Examiner's conduct in this case is
similar to the type of conduct exhibited by the Hearing Examiner in the second
United Church of Christ case, cited supra, which the United States Court of
Appeals for the District of Columbia Circuit found objectionable. In the
United Church of Christ case, the Court found that the Examiner, pursuant to
the Commission's designation order and contrary to a previous ruling of the
Court, improperly placed the ultimate burden of proof on certain issues upon
the intervenors rather than the applicant and held that the Examiner, in
conducting the evidentiary hearing, demonstrated a "curious-neutrality-in-favor-of-the-licensees."
The Court also stated that the Examiner's erroneous concept of the burden of
proof prevented the development of a satisfactory record since he consistently
confused mere allegation with testimonial evidence, dismissing the latter by characterizing
it as the former. Thus, the Court concluded that the administrative
conduct reflected in the record was beyond repair, and ordered a new
hearing. In the instant case, however, none of the irregularities noted
by the Court in the United Church case are present. As previously
discussed, we believe that the apportionment of the evidentiary burdens among
the parties to this proceeding was proper, and indeed, the Complainants have
not contended otherwise. Moreover, except for surmise and conjecture, the
Complainants have offered no specific examples showing the Examiner's
"curious neutrality-in-favor-of-the-licensee" or showing his alleged
improper exclusion of relevant testimonial evidence as was shown in the United
Church of Christ case.
46. Likewise, we find no merit
to the Complainants' contention that the Examiner erred in failing to give any
probative weight to certain admissions made by the KRON middle managers which
related to programming allegedly designed to enhance Chronicle's CATV interests.
While we agree with the Complainants that, under certain circumstances, the
general rule of Agency Law requires that declarations made by employees and/or
agents are binding upon their principals, we do not believe that such a general
rule of law is either applicable or governing with respect to the admissibility
of evidence. On the contrary, we are persuaded that the appropriate rule
in this respect is set forth in 4 Wigmore Section 1078 (3d ed. 1940), which
provides, in essence, that the question of the admissibility and weight to be
accorded the admissions of employees and/or agents must necessarily turn on the
scope of the authority of the speaker. In our opinion, the Examiner, in
considering and weighing the admissions made by the KRON middle managers,
properly applied this latter test. For instance, he concluded that those
particular admissions could not be given any probative weight because it had
been clearly shown on the record that they were made not within the scope of
the speaker's actual or apparent authority and were not based on actual
knowledge. On this matter, the Examiner stated the following:
"... The individuals to
whom [the admissions] were attributed were middle management personnel whose
duties were related to the operation of KRON [*794] as a television
station, not the business activities of either the station or its owners.
If, in fact, KRON programming was being used to advance Chronicle's business
interests, it would have been necessary to issue appropriate orders to these
people, but it would have been neither necessary nor natural to have informed
them of the motives for such orders. Hence, there is no presumption that
their statements in this area are based on actual knowledge.
"This is not to say that they
could not have possessed such knowledge: only that it must be proven and not
presumed. Such proof is totally lacking...." I.D. para. 107-08.
47. We also find no merit in
Complainants' additional argument that Chronicle has failed to supervise its
employees and maintain control of its stations. Except for bare
assertions, the Complainants have offered Except for bare assertions, the
Complainants have offered no evidence to substantiate this claim.
Regarding the Complainants' First Amendment arguments, we do not believe that
they are applicable to the facts of this case. The "commercial"
speech cases relied on by the Complainants ( Valentine v. Chrestensen, 316 U.S.
52 (1942) and Ginzberg v. United States, 383 U.S. 463, 474 n. 17 (1966)) apply
solely to "purely commercial advertising." In the instant case,
however, we do not believe that commercial advertising is at issue.
Merely because the Complainants attempt to equate certain news and public
affairs programs carried by the KRON broadcast stations with commercial
advertising does not in our opinion alter the facts of this case. In any
event, and as will be shown hereafter, we are convinced that it has not been
shown on this record that Chronicle either slanted or managed the news and
public affairs programming for commercial profit or for any other
self-interest.
48. In sum, we are convinced
that the Examiner in conducting the evidentiary hearing in this case has acted
properly and within his delegated authority and that the Complainants' contrary
contentions are totally without merit.
49. Joint Operating Agreement,
Concentration of Control, and the Newspaper Preservation Act. As will be
shown hereafter, the Newspaper Preservation Act clearly exempts the
Chronicle-Hearst joint operating agreement from the provisions of the antitrust
laws. Thus, we need not determine, as Complainants' request, the legality
of that agreement at the time it was executed simply because the Department of
Justice was then actively engaged in court proceedings challenging a joint
operating agreement between two daily newspapers in Tucson, Arizona, which was
subsequently found to be illegal (Citizens Publishing Co., cited supra).
Therefore, our only concern in this area is to determine whether Chronicle's
conduct at that time was of such a nature as to reflect adversely upon its
qualifications to be a Commission licensee. Based on our review, we find
that the record evidence clearly demonstrates that the principals of Chronicle
acted responsibly in both negotiating and executing the Chronicle-Hearst joint
operating agreement; that their conduct does not call into question the
qualifications of Chronicle as a corporate licensee; and that the Complainants'
contrary contentions are completely without merit. The Examiner's recapitulation
of the evidence of record compiled in this respect is adequately set forth in
paragraphs 36-41 of the Initial Decision and need not be repeated here.
[*795] 50. We find
Complainants' "horizontal merger" arguments inapposite since no
merger or consolidation has taken place between Chronicle and Hearst.
Briefly stated, a merger as defined by the courts is the absorption by one
corporation of the properties and franchises of another whose stock it has
acquired, with the latter corporation ceasing to exist and the former
surviving. n23
In a consolidation, an entirely new corporation is created and the
consolidating corporations surrender their separate existence. n24 As previously noted, the
Chronicle-Hearst agreement essentially provides for the creation of an equally
owned corporation to handle the mechanical, advertising, business and
circulation affairs of the two San Francisco newspapers. Under the
agreement, both newspapers continue to exist as separate corporate entities and
neither has acquired the stock of the other. In view of the foregoing,
and under the definitions above, we are not persuaded that Chronicle and Hearst
have effectuated a merger or consolidation in violation of Section 7 of the
Clayton Act, as the Complainants contend.
n23 Fisher
v. Commissioner of Internal Revenue, 108 F. 2d 707, 709 (6th Cir. 1939), cert.
denied, 310 U.S. 627 (1940); Ahles Realty Corporation v. Commissioner of
Internal Revenue, 71 F. 2d 150, 151 (2d Cir. 1934), cert. denied, 393 U.S. 611
(1934); and Commissioner of Internal Revenue v. Dana, 103 F. 2d 359, 361 (3d
Cir. 1939).
n24
Metropolitan Edison Co. v. Commissioner of Internal Revenue, 98 F. 2d 807, 810
(3d Cir. 1938), aff'd, 306 U.S. 522 (1939).
51. As previously stated, we
believe, as did the Examiner, that the Newspaper Preservation Act clearly
exempts the Chronicle-Hearst agreement from the provisions of the antitrust
laws and prohibits us from taking any action based thereon. Briefly
stated, the Newspaper Preservation Act grants immunity from the antitrust laws
for any joint operating agreement between competing newspapers where such an
agreement was entered into because of the economic distress of all but one of
the parties involved. This immunity permits competing newspapers to
produce jointly and distribute their papers and, at the same time, eliminates
all competition between such papers by permitting the fixing of identical
subscription and advertising rates, and the pooling of profits. Section 4
of this Act prevents the Department of Justice or any private party from suing
under the antitrust laws, and prohibits any department or regulatory agency of
the government from "imposing sanctions or taking any other action on the
ground that entering into, performing, enforcing or renewing such a joint
operating arrangement violates or is inconsistent with the antitrust laws or is
contrary to the public interest." S. Rep. No. 91-535, 91st Cong., 1st
Sess. 5 (1969). Particularly germane to the matters now before us is a
limited exception also set forth in Section 4 of the Act, which specifically
states that joint operating agreements entered into prior to the effective date
of the Act are retroactively granted immunity from the antitrust laws.
H.R. Rep. No. 91-1193, 91st Cong., 2nd Sess. 3, 5 (1970). Though entered
into prior to the Newspaper Preservation Act, it is readily apparent from the
above that the Chronicle-Hearst joint operating agreement is specifically
exempt from the antitrust laws, and thus we find no merit to the Complainants'
contrary contentions.
[*796] 52. We now
turn to Complainants' arguments relating to concentration of control via
commonly owned newspaper-broadcast combinations in the same market. In
Midwest Radio-Television, Inc., 24 FCC 2d 625 (1970), when presented with the
question of whether to rule on this particular matter on an ad hoc basis, we
decided that it would not be in the public interest to examine
newspaper-broadcast joint ownerships in the context of that renewal proceeding,
but that such matters could be more appropriately dealt with in general
rulemaking proceedings. n25 Similarly, in Michinana Telecasting Corp., et al., 26 FCC 2d 21 (1970),
we stated that questions of general cross ownership policy relating to the
structure of the broadcasting and CATV industries, absent clear and substantial
evidence of abuse or extreme concentration, are more appropriately resolved in
rulemaking proceedings, rather than on an ad hoc basis. See also Chuck
Stone v. FCC, 24 RR 2d 2105, 2122-24 (D.C. Cir. 1972), rehearing denied 25 RR
2d 2001.
n25 See Docket No. 18110, Further Notice of Proposed Rulemaking, 22 FCC 2d 339 (1970), where we have proposed rules aimed at reducing common ownership, operation or control of daily newspapers and broadcasting stations within the same market.
53. Given the above, we
believe that the question now presented is whether there is "substantial
evidence of abuse or extreme concentration" by Chronicle in the San
Francisco market which would warrant a departure from our general rule.
We think not. As the Hearing Examiner has found, the San Francisco area
is served by a plethora of media. At least 7 other TV stations serve the
area covered by KRON-TV's Grade A contour; at least 21 AM primary services
day-time and 3 such services nighttime are available throughout the KRON-TV
Grade A contour; at least 30 FM stations serve parts of the "Bay
Area." Also, the "Bay Area" is served by 29 daily newspapers of
general circulation, only two of which are published in San Francisco itself.
Of the others, at least 8 are widely read in the area. In addition,
numerous other publications are available in the area, including at least 34
national magazines. Thus, we can find no evidence of abuse or extreme
concentration and believe that there is no basis for ad hoc action in this
particular case. See also Federation of Citizens Associations of the
District of Columbia, et al., 21 FCC 2d 12, 14 (1969).
54. Finally, we find
Complainants' relevant geographic market arguments to be without merit.
The short answer to all of the Complainants' contentions in this respect is
that the criteria utilized by the Courts in determining whether a particular
newspaper has an undue concentration of control of the printed press are
neither appropriate nor applicable for determining undue concentration of
control in the broadcasting industry. Stated more specifically, even
though it may be determined that the San Francisco printed press enjoys a five
county newspaper market, this does not mean that such an area is the relevant market
for all of the broadcast stations located in that city or, more particularly,
KRON-TV's relevant market. On the contrary, we agree with the Examiner
that the nine county San Francisco Bay Area properly depicts the relevant
market of KRON-TV. Such an area roughly approximates the station's Grade
B contour [*797] and, more importantly, is the area served by that
station. The Commission has traditionally utilized a station's service
area in determining the relevant geographic market of a broadcast station.
n26
n26 See
Sections 73.35(b), 73.240(a)(2) and 73.636(a)(2) of the Commission's Rules; see
also Lee Enterprises, Inc., 18 FCC 2d 684 (1969); cf. Massachusetts Bay
Telecasters v. FCC, 261 F. 2d 55 (1968).
55. Moreover, in Docket No.
18110, 22 FCC 2d 339, 349 (1970), we specifically indicated that the Commission
would continue to apply the criteria set forth in the duopoly rules (Sections
73.35, 73.240 and 73.636) in resolving undue concentration of control
issues. However, we recognized in that proceeding that newspapers do not
have service contours and, therefore, a difficult problem is presented when
their areas of concentration are compared with those of broadcast
stations. Accordingly, we invited comment on how newspaper markets should
be defined for purposes of measuring undue concentration of control. In
view of the foregoing, and in the absence of an overriding public interest
showing which would require us to hold otherwise, we are convinced that such
matters here raised by the Complainants are more appropriately dealt with in
the context of rulemaking proceedings rather than on an ad hoc basis in an
adjudicatory proceeding.
56. News Management and
Slanting. We find no merit to the Complainants' contention that the
Examiner's consideration of all of the record evidence bearing on this hearing
issue was unduly restrictive. Based on our review of the record vis-a-vis
the Initial Decision we find that the Examiner had indeed analyzed the evidence
of record in precisely the manner that the Complainants claim he did not, i.e.,
after considering each alleged instance of improper news management, and
concluding that individually none was based on Chronicle's self-interest, the
Examiner then proceeded to consider and analyze the collective effect of all of
the evidence compiled in this respect. For instance, see paragraphs
252-258 of the Initial Decision and, more particularly, paragraphs 259-260
where the Examiner specifically stated the following:
"... There remains to be
considered whether, viewed as a whole, [the incidents relating to the charge of
news management] show a consistent course of action from which such policy or
practice [of improperly promoting the station's own interests] can be
reasonably inferred. The Examiner does not conclude this to be the case.
"No pattern emerges. Each
incident is shown to have been judged on its own facts and the decisions
relating thereto made on the basis of those special facts. In retrospect,
not every judgment was perfect, but no judgment is shown to have been made for
the purpose of serving andy express or implied policy to slant or bury certain
news. This is not to say that KRON employees were unaware of the impact
their actions might have on their employer's interests... However, it is
not shown that this awareness actually affected the coverage of any news story
or that it was deliberately fostered by KRON's management... While such a
climate is undesirable and potentially dangerous, it does not of itself justify
a conclusion that KRON did, in fact, slant news to serve its own
interest."
57. We likewise cannot accept
the contention that the Examiner erred in failing to consider or weigh properly
certain evidence surrounding a "community luncheon program" which was
sponsored by Chronicle and which the Complainants believe was part of a bold,
pervasive public relations effort instituted by Chronicle for enhancing
its [*798] position in acquiring CATV franchises. Indeed,
what we have found after our review is that the Complainants' arguments in this
respect are based solely upon misstatements of the evidence and also either
ignore or mischaracterize the Examiner's proper analysis of all of the evidence
surrounding this matter.
58. While it is true that the
record does contain some evidence from which it might be inferred that the
Chronicle community luncheon program was utilized solely for the purposes the
Complainants suggest, n27 we are persuaded, as was the Examiner, that a preponderance of the
record evidence bearing on this matter clearly dispels any doubts in this
regard and indeed refutes the Complainants' interpretation of these community
luncheons. For instance, the record reveals and the Examiner found
(paragraphs 76-96 of the Initial Decision) that the community luncheon program
was one of a series of public relations efforts originated by Chronicle in 1961
as a means of determining community needs and interests; that, since its
inception, a total of 72 luncheons in 17 communities in the KRON-TV service
area have been held, with attendance ranging from 27 to 60 persons; and that
the location and guest list of such luncheons is determined by KRON's Public
Affairs Director, who had neither responsibility for nor authority to pursue
Chronicle's CATV interests.
n27 The record reveals and the Examiner found that in early 1965 Chronicle manifested an interest in acquiring a CATV franchise in Vallejo, California (footnote 45 of the I.D.); that Chronicle sponsored a luncheon in Vallejo on March 16, 1966, which was attended by some of the Chronicle officials and the community leaders who had earlier discussed Chronicle's CATV interests in the area; that at the luncheon these same Chronicle officials and community leaders also discussed the possibility of a KRON-TV documentary program for the North Bay area of San Francisco, California, which would relate, in part, to the city of Vallejo (paragraph 79 of the I.D.); and that shortly thereafter, KRON-TV did in fact carry such a documentary program which was titled "Where the Bay Begins" and of which 38% of the program was related to Vallejo (paragraph 89 of the I.D.).
59. The record likewise
reveals that Chronicle's interest in CATV did not manifest itself until 1965,
some four years after the luncheon program was instituted, and that the principals
of Chronicle (particularly Mr. Harold See) who were charged with pursuing
Chronicle's CATV interests had no role in the selection of either the location
or the guest list of these community luncheons, except to issue general
instructions that the luncheons be rotated throughout the area and the guest
list be representative of the surrounding area where the luncheon was to be
held. We further note that, since the inception of the luncheon program
in 1961 and prior to 1965 when Chronicle expressed an interest in obtaining a
CATV franchise in Vallejo, California, a total of five luncheons had been held
in that community; that the determination to hold the 1966 Vallejo luncheon,
which was contemporaneous in time with Chronicle�s efforts to obtain a CATV franchise
for that community, and the selection of the guests to be invited were made by
the KRON Public Affairs Director rather than by any of the principals of
Chronicle who were then actually pursuing Chronicle's Vallejo CATV interests;
and that the testimony of some of the persons attending this 1966 Vallejo
luncheon indicates that Chronicle's CATV interests were not discussed at this
particular luncheon, nor were they brought up in the discussions centering
around the KRON-TV documentary program for the Vallejo area.
[*799] 60. Based
on the above and other countervailing evidence of similar nature, which we have
not recounted but which is specifically pointed out in our rulings on
Complainants' exceptions as contained in the attached Appendix, the Examiner
concluded, and we agree, that Chronicle's public relations efforts were not
conceived and dedicated solely or primarily for enhancing its CATV interests or
for any other self-interest, as the Complainants suggest.
61. As previously stated, the
Complainants also contend that it has been clearly shown on the record of this
proceeding, and the Examiner has failed to so find or conclude, that certain
KRON-TV programming (the documentary program about the city of Vallejo, as
noted above; a program covering the San Carols, California, "Chicken's
Ball", a fund raising project by the San Carlos, California, area's PTAs;
a program covering the South San Francisco library dedication; and KRON-TV
coverage of certain local labor disputes) was likewise motivated by Chronicle's
CATV and other self-interests. We disagree. What we have found
after our review is that the Complainants' contentions respecting these matters
are grounded upon distortions and/or misrepresentations of the record evidence;
upon selected circumstantial evidence which is clearly outweighed by a
preponderance of all of the other evidence; upon hearsay testimony which the
Examiner properly rejected; and finally upon numerous mischaracterizations of
the Examiner's analysis of the evidence surrounding these matters of
record. In order for us to answer individually all of the Complainants'
contentions it would be necessary to recount all of the evidence compiled on
the record bearing on this hearing issue. No useful purpose would be served
by such a procedure since the Examiner's findings in this respect (paragraphs
67-134 of the I.D.) represent, in our opinion, a fair and reasonable
recapitulation of the evidence surrounding the alleged management and/or
slanting of the KRON programming, as the Complainants have charged. Thus,
for the purpose of this review and in view of our detailed analysis of each of
the Complainants' assertion surrounding this portion of the record set forth in
our rulings on the exceptions in the attached Appendix, we believe that it is
sufficient merely to point out that we have thoroughly reviewed the record
evidence vis-a-vis the Initial Decision in light of the arguments urged by the
Complainants. Based on such a review, we conclude that the Examiner's
findings of fact relating to these matters are completely supported by the
record evidence and that his conclusions are a fair and reasoned interpretation
of those findings.
62. The Investigative
Issue. A brief analysis of this particular hearing issue is necessary so
that the Complainants' arguments may be considered in their proper
perspective. In adding this issue the Review Board stated, and we agree,
that by voluntarily placing themselves in an adversarial posture the
Complainants exposed themselves to a reasonable and proper search of their
credentials; that while such an investigation is permissible in a litigative
context, this is not to say that the Complainants have consented to an exposure
of their entire background and living habits; and that the manner in which the
investigation was conducted, its scope, and the purpose for which it was
instituted are all factors to be considered in determining whether it
[*800] was proper and permissible. n28 With this background, we now turn
to the specifics of the Complainants' arguments bearing on this hearing
issue.
n28 19 FCC
2d 240, 244-45 (1969).
63. As previously stated, the
Complainants' contend that the Examiner erred in absolving Chronicle of any
liability, presumably adverse conclusions resulting in disqualification,
respecting the investigations of them, because such investigations were clearly
illegal under California state law since they were accompanied by fraudulent
investigative conduct, were admittedly done under subterfuge and
misrepresentation, and were intended to intrude unreasonably into Complainants'
private lives. The short answer to this contention is that California
state law and the court's interpretation thereof are neither applicable nor
governing under the hearing issues of this proceeding, i.e., whether or not the
conduct of the KRON investigation of the Complainants constituted attempts to
harass, coerce and intimidate and, if so, what effect such conduct has upon the
qualifications of Chronicle to be a Commission licensee.
64. Irrespective of the
foregoing, and in light of the Complainants' general contention reflected
throughout their exceptions (i.e., the Examiner erred in considering and
weighing the record evidence in this proceeding), we have on our own motion
nevertheless reviewed the evidence bearing on this hearing issue vis-a-vis the
Initial Decision to be certain that the Examiner's findings of fact are
supported by and reflective of the record evidence and to be certain further
that his conclusions also represent a fair and reasonable analysis of those
findings. Based on our review, we are in full accord with the Examiner's
ultimate conclusions that it has not been demonstrated that the KRON
investigations were either intended to or did in fact constitute attempts to
harass, coerce or intimidate the Complainants; and that, consequently,
Chronicle's qualifications to remain a Commission licensee are not called into
question as a result of these investigations. See discussion, paragraph
66, infra.
65. While we are convinced
that the conduct of Chronicle was reasonable and prudent in undertaking these
investigations of the Complainants, n29 we have nevertheless noted some disturbing aspects
of those investigations during our review of this portion of the record.
Specifically, we note that some of the investigators in conducting their
interviews under subterfuge sought information which does not appear in keeping
with the purpose and objectives of the investigations n30 and which the Review Board
specifically pointed out should be avoided in defining the permissible scope of
an investigation when it [*801] added this hearing issue. n31 For instance, the record reveals
that the investigators sought information as to the Complainants' personal
social lives (Tr. 6541-43, 6648), past marital history (Tr. 6730-32) and
whether or not the Complainants had ever indulged in the use of drugs (Tr.
6707).
n29 The record reveals, and the Examiner found, that these investigations were commissioned on the recommendation of Chronicle's legal counsel; that Chronicle relied totally on the advice of its counsel, who were not without experience, in recommending and selecting an able investigative firm of excellent reputation to conduct these investigations; and that authorities of unquestionable competence on the subject of proper investigative techniques testified at the hearing that the objectives and methods of these investigations were both conventional and legitimate. See paragraphs 214-235 of the I.D.
n30
Chronicle has maintained throughout this proceeding that the purposes of its
investigation were to determine the backgrounds of Kihn and Streeter, to
determine what their motives were in filing their complaints against the KRON
renewal applications, and to determine who was behind, acting in concert with,
or responsible for their respective actions. (Tr. 6516, 6520, 6848, 6859, 7256
and 7269.)
n31 As
previously mentioned (paragraph 62 supra), the Review Board stated that by
voluntarily placing themselves in an adversarial posture the Complainants exposed
themselves to a reasonable and proper search of their credentials, but this is
not to say that the Complainants consented to an exposure of their entire
backgrounds and living habits.
66. Whether or not the above
was a result of ineptitude on the part of some of the investigators or was
brought about because of an absence of specific instructions to these
individuals need not be determined in the context of this proceeding, n32 since we have already concluded
that Chronicle acted reasonably and prudently in commissioning these
investigations and that the Complainants were not in fact harassed, coerced or
intimidated so as to discourage their active participation in this
proceeding. This is not to say, however, that we are not concerned about
the type of investigative conduct here noted or that we intend to condone all
future litigative investigations utilizing such procedures. Indeed, the
danger of sanctioning such investigations, we believe, is readily apparent
since it would clearly discourage members of the public, more timid than the
Complainants in this proceeding, from bringing matters to the Commission's
attention which fall within its regulatory powers and would also dampen the
active participation of interested parties in Commission adjudicatory
proceedings. We thus hold that the licensee will be held strictly
accountable for all such investigations; that it is therefore incumbent upon
the licensee not only to choose responsible investigators but to impress upon
them the need to adhere closely to legitimate means and purposes in the
investigation; and that the investigators' failure in these respects will
reflect adversely upon the licensee, and in a particularly flagrant case can
even be disqualifying. Thus, we wish to make it clear that, even though
an investigation is not intended for the purpose of harassment, coercion, or
intimidation, this Commission will nevertheless continue to examine thoroughly
any investigation of parties participating in adjudicatory proceedings before
this Agency. When it is found that the scope, breadth, and techniques
employed in such investigations are improper in the context of a particular
proceeding, the party instituting this type of investigation will be held
responsible and, where appropriate, adverse conclusions will be drawn. In
this case, the matter is one of first impression, and KRON-TV proceeded
reasonably in choosing a responsible investigating organization under our new
guidelines, it should have also impressed upon the investigators specifically
rather than generally, the need to adhere to legitimate means and purposes in
the investigation (see footnote 30). We hold that in these circumstances,
what occurred reflects adversely on KRON-TV, but is certainly not
disqualifying. Since all licenses are now put on notice as to what is
expected of them, and that we do not mean to temporize [*802] in
this area, we expect strict future compliance, with the warning that the
adverse finding may be heightened in light of an improper occurrence after
issuance of the guidance here given.
n32 These matters are more appropriately directed to the Complainants' contentions of whether or not Chronicle is liable for the acts of the investigative firm under California state law involving action for the invasion of privacy, which we understand is presently before the state courts.
67. Accordingly, IT IS
ORDERED, That the renewal of motion for disqualification of Commissioner
Johnson filed September 21, 1971, by Chronicle Broadcasting Co., IS DENIED.
68. IT IS FURTHER ORDERED:
(a) That the petition for leave to
amend filed April 28, 1971, by Chronicle Broadcasting Co., IS GRANTED, and the
amendment associated therewith, IS ACCEPTED;
(b) That the motion for permission
to file pleading in excess of prescribed length filed July 2, 1971, by
Chronicle Broadcasting Co., IS GRANTED, and the brief in reply to Complainants'
exceptions associated therewith IS ACCEPTED;
(c) That the motion for leave to
file reply to Broadcast Bureau's reply to exceptions, filed July 14, 1971, by
Chronicle Broadcasting Co., IS GRANTED, and the reply associated therewith, IS
ACCEPTED;
(d) That the motion to correct
transcript filed June 21, 1971, by Chronicle Broadcasting Co., as amended by an
erratum filed May 26, 1972, also by Chronicle Broadcasting Co., IS GRANTED;
(e) That the petition to amend filed
October 19, 1972, by Chronicle Broadcasting Co., IS GRANTED, and the amendment
associated therewith, IS ACCEPTED; and
(f) That the above-captioned
applications (File Nos. BRH-926 and BRCT-94) of Chronicle Broadcasting Co., for
renewal of licenses of Stations KRON-FM and KRON-TV, San Francisco, California,
ARE GRANTED.
69. IT IS FURTHER ORDERED,
That this proceeding IS TERMINATED.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENT:
[*828] DISSENTING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
On March 20, 1969, based on serious
and substantial allegations in a petition to deny filed by Albert Kihn and
Blanche Streeter, the FCC designated a hearing on Chronicle Broadcasting
Company's applications to renew its licenses for KRON-TV and KRON-FM, San
Francisco, California. Today, after four years of procrastinated
maneuvering, the majority -- like the Hearing Examiner before it -- literally
twists and squirms in order to avoid the impact of its own findings. In
the face of immense problems of concentrated media control, anticompetitive
practices, and illegal harassment of certain concerned members of the public,
the majority, in what is by all odds one of its most outrageous decisions to
date, simply winces and renews Chronicle's licenses. I dissent.
In its initial designation order,
the Commission allegedly sought to discover (1) whether the licensee's parent,
Chronicle Publishing Co. (Chronicle) had amassed an undue concentration of
media control in the San Francisco market; (2) whether Chronicle had engaged in
anticompetitive practices with respect to its newspaper ownership and
affiliations; and (3) whether Chronicle had employed its enormous media power
in an effort to manage the news for the purposes of further expanding its
burgeoning communications empire. 16 F.C.C. 2d 882 (1969). Subsequently,
in the summer of 1969, the Review Board enlarged these issues in order to
consider whether the public interest had been served by the licensee's covert
"investigation" of the two citizens who had initiated this proceeding
by filing petitions to deny Chronicle's license renewal applications. 18
F.C.C. 2d 120 (1969).
That hearing is now completed.
Indeed, that hearing -- and the staff's resolution of the complainant's
exceptions to the Hearing Examiner's findings -- have been completed for
several months. n1 Now, at last, the majority is prepared to issue its decision which
concludes -- not surprisingly, but nevertheless remarkably -- that renewal of
these licenses will serve the public interest. With this bizarre example
of FCC wish fulfillment I cannot agree.
n1 Why
this hearing and review process has lasted for so many years is, itself, an
interesting question. Professor Stephen Barnett has suggested that by
having its 1968 renewal application designated for such a prolonged hearing
process, KRON has retained all the benefits of operating its station without
the additional responsibilities of filing for future renewals, without the need
for informing either the public or the FCC of its programming plans, and
without the risk of dealing with a potential competing application. See
Barnett, "A Kronic Case," San Francisco Magazine, 38 (April 1973).
As Professor Barnett adds: "The Commission typically moves like a snail
when this suits the interests of broadcasters, as it usually does."
I. CONCERTRATION OF MEDIA
CONTROL AND ITS ABUSES
Aside from its ownership of
KRON-TV-FM, Chronicle also owns the San Francisco Chronicle -- one of the
city's two daily newspapers -- and is part owner and publisher of the city's
only Sunday paper. Chronicle also owns Western Communications Inc., a
CATV management company which, itself, owns and operates -- contrary to FCC
policy -- several cable systems within KRON-TV's grand B contour. n2 [*829] Chronicle has also
entered into a possibly illegal joint operating agreement with San Francisco's
only other daily newspaper, the Examiner, and, among other things, this
agreement has produced a commonly owned corporation to handle both newspapers
advertising and circulation affairs.
n2 These cable interests, of course, conflict with the FCC's rules barring broadcasters from owning or having interests in cable systems in the same market. 47 CFR � 76.501. Presumably, then, Chronicle is in the process of resolving these rule violations through divestiture proceedings.
In view of these ownership patterns,
coupled with substantial interlocking directorships and management at the
highest levels, it is no wonder that the Hearing Examiner observed that
Chronicle has a "powerful voice" in the San Francisco area.
Yet, despite this obviously euphemistic description of Chronicle's media power,
the majority has no difficulty concluding that renewal of these broadcast
licenses will serve the interests of the San Francisco public.
%first, the majority hesitates to
reach the concentration issue at all, on the grounds that the FCC is currently
considering the problem of newspaper-broadcast cross-ownership in a rulemaking
proceeding, FCC Docket No. 18110. On March 25, 1970, subsequent to the
hearing designation in the instant case, the FCC issued a notice of proposed
rulemaking designed to foster a diversity of communications services and
viewpoints by limiting newspaper-broadcast bross-ownership in the same market.
Further Notice of Proposed Rulemaking, 22 F.C.C. 2d 339 (1970. In Hale v.
FCC, 18 P.F. RR2d 2014 (1970), the United States Court of Appeals for the
District of Columbia approved the FCC's policy of deferring questions of
newspaper cross-ownership in the context of adjudicatory proceedings pending
the Commission's resolution of Docket 18110.
That case was decided in 1970.
At that time, such judicial deference to the FCC's desire to formulate a coherent
policy prior to the application of such policy in adjudicatory proceedings
might have appeared reasonable. However, it is by now mid-1973, and the
resolution of the FCC's never-ending newspaper cross-ownership docket is
nowhere in sight.
At this late juncture, no court
could possibly approve this Commission's blatant policy of deferring to a
rulemaking proceeding which was allegedly initiated to resolve a very serious
problem, but which is really nothing more than a means of avoiding the need to examine
that problem in the context of renewal proceedings. Professor Stephen
Barnett has dubbed this ingenious practice the FCC's "shell game,"
see Barnett, The FCC's Nonbattle Against Media Monopoly, COLUMBIA JOURNALISM
REVIEW, 43 (Jan/Feb 1972), and the majority has repeatedly sought refuge in
this game in order to avoid having to deal with problems of newspaper-broadcast
cross-ownership. See, e.g., Application of Radio hio, Inc., 38 F.C.C. 2d
721, 748 (1972). The instant case is yet another example of this sort of abuse
of process.
Perhaps even more frustrating is the
fact that in both Hale and RadiOhio the majority had declined to designate a
hearing on the concentration issue pending resolution of Docket 18110, whereas
in the instant case a hearing on this issue was not only designated, but it
was, at least in theory, explored carefully by the Hearing Examiner and the
staff before the majority decided to engage in its now infamous "shell
game." Thus, the instant case is distinguishable from Hale and RadiOhio at
least in part because deference to our rulemaking in those [*830]
cases was, among other things, arguably a means of employing scarce man-power
resources in what some might term an intelligent fashion. In the instant
case, those resources have already been expended. The "shell
game" has only resulted in waste.
Despite its eagerness to rely on its
"shell game" as a means of avoiding the resolution of the instant
concentration question -- a question which, I emphasize, was designated for
hearing prior to the initiation of the further notice of proposed rulemaking in
Docket 18110 and which, for that reason alone, should demand our immediate
attention -- the majority admits that it will examine such questions if there
is substantial evidence that the licensee's concentration of media control is
"extreme" or has resulted in abusive, anticompetitive conduct.
See, e.g., Michiana Telecasting Corp., 26 F.C.C. 2d 21 (1970). Without even
attempting to define these terms, the majority then simply decrees that
Chronicle's concentration of control is neither extreme nor productive of
anti-competitive practices.
In order to determine whether
Chronicle's concentration meets the majority's undefined "extreme"
standard, it is first necessary to define the relevant geographic market.
The majority asserts, without any
authority, that the relevant market is KRON's grade B contour, and that the
communities within this contour are served by several television stations, AM
and FM stations as well as by at least 29 daily newspapers. Even given
this overly-expansive market definition, the staff concluded that about 10% of
the population was exposed exclusively to media services owned by
Chronicle. Apparently, even this significant percentage does not meet the
majority's non-standard of "extreme," concentration, but the more
important point is that the majority did not correctly define the relevant
market.
In Frontier Broadcasting Co., 21
F.C.C. 2d 570 (1970), the Commission designated a hearing on the licensee's
renewal application (as in the instant case, prior to the initiation of the
further notice of proposed rulemaking in Docket 18110) to determine whether
Frontier had amassed an undue concentration of media control in the Cheyenne,
Wyoming market. n3 The licensee held the license to Cheyenne's only TV station, one of
Cheyenne's four AM stations and one of Cheyenne's two FM's. Frontier also
owned the community's only newspaper, and had acquired a non-exclusive
franchise for a cable system which would serve the same community.
n3 Interestingly, Frontier argued that the Commission should not consider the concentration issue on an ad hoc basis but should wait until resolution of the proceeding in Docket 18110. That Docket had not yet been specifically expanded to encompass consideration of the newspaper-cross-ownership problem. But, in any event, the Commission, obviously aware of its impending further notice, specifically declined to delay consideration of Frontier's concentration of media control until after the culmination of Docket 18110. In my view, that result cannot be reconciled with today's contrary conclusion.
Frontier argued that the relevant
market (for purposes of determining whether these ownership patterns were
unduly concentrated) was the market covered by the TV station's grade B
contour. That contour, said the licensee, extended into areas which were
also served by Denver, Colorado stations, as well as Denver newspapers.
But the majority, agreeing with the arguments in a brief filed by the
Justice [*831] Department, refused to so view the relevant market,
defining it instead as the far more geographically limited area in and around
Cheyenne.
Apart from this clear precedent,
there are, moreover, strong policy reasons for defining the relevant market in
a manner more limited than that adopted by the majority in the instant
case. Underlying the Commission's alleged concerns about undue
concentration of media control is the belief that common ownership of those
means of communications which provide a given community with information about
local issues is not likely to produce a diversity of views on such
issues. Such diversity of views -- and hence diversity of media-ownership
-- is valued because, as the courts have so often enunciated, our society is premised
upon the proposition that truth will be more likely to emerge from vigorous
debate than from adherence to a single source of information. See, e.g.,
Judge Learned Hand's opinion in U.S. v. Associated Press, 52 F. Supp. 362, 372
(S.D.N.Y. 1943), aff'd sub nom, 326, U.S. 1 (1945).
While Chronicle's numerous media
interests begin to encounter greater competition as one moves out of
metropolitan San Francisco into the surrounding Bay area communities, the fact
remains that a substantial (or, to use the majority's terminology, an
"extreme") percentage of the medial outlets designed to serve the
local needs of those persons in San Francisco proper are owned by
Chronicle. Thus, while the people in the nine-county Bay area may be
exposed to some diversity of media views, those in San Francisco clearly are
not.
In short, In believe that the
relevant market in this case should be the metropolitan area of San Francisco,
where Chronicle has an iron grip on the various sources of communication, and
not the greater Bay area to which KRON-TV's grade B contour extends, and in
which there are additional media services controlled by sources other than
Chronicle. n4
For these additional media services are not designed to, and do not, serve the
local needs of the people of metropolitan San Francisco, but, rather, are
designed to serve their own local communities. In terms of what one
student has called "local service potential," n5 then, those newspapers and radio
and television stations whose primary service is to communities outside of San
Francisco are simply not relevant to the San Francisco market. And it is
within that market that Chronicle has "extreme" concentration of
media control.
n4 The majority, by so broadly defining the geographic market, fails to focus on the fact that the San Francisco public has little choice but to receive its local news and information from Chronicle's media outlets. In short, for this large segment of the population there are few alternatives to Chronicle's news sources. See, e.g., the discussion in Mr. Justice Fortas' opinion in U.S. v. Grinnell Corp., 384 U.S. 563, 585 (1966), for the problems inherent in a market approach such as that taken by the majority in circumstances such as these. While this approach obviously benefits the Chronicle corporation's interests, it simply ignores the interests of a very substantial number of people living within the boundaries of San Francisco.
n5 This
term was used in a paper prepared by Douglas Woodlock for a seminar I taught at
Georgetown law school in the fall of 1972. Newspaper Ownership of
Broadcast Facilities. The paper in unpublished and is on file in my
office.
The majority, of course, struggles
to apply the broadcast possible market definition in the hopes of justifying
the extremely tenuous conclusion that Chronicle's media empire is really not so
powerful after all. But even assuming arguendo that the majority is
correct in [*832] concluding that Chronicle's control over the
media in this area is not "extreme," the majority's conclusion that
Chronicle's media concentration has not led to anticompetitive abuses is surely
ridiculous.
First, complainants allege that the
Chronicle Publishing Co. has engaged in anti-competitive practices through the
imposition of unreasonably restrictive syndication contracts.
Interestingly, the majority does not even refer to this charge in the test of
its opinion.
Complainants argue that with respect
to most of these syndication contracts, Chronicle has extended territorial
exclusivity within the entire nine county Bay area. In other words, no
other newspaper in that area may publish the syndicated columns for which
Chronicle has contracted. Yet, by publishing only 10% of such columns,
Chronicle has prevented readers of other newspapers in the Bay area from
reading the remaining 90%.
Apart from the question whether such
a practice can possibly serve the public interest is the more serious question
whether Chronicle has employed this territorial exclusivity unlawfully to
defeat the interests of potential competitors. Such contracts are not, of
course per se violations of the Sherman Act, but they must be reasonably
designed for a legitimate purpose -- e.g., copyright protection -- and may only
be as extensive in territorial scope as is necessary to protect that
purpose. See, e.g., U.S. v. Chicago Tribune-N.Y. News Syn., Inc., 309 F.
Supp. 1301 (S.D.N.Y. 1970).
In my view, by extending its
exclusive syndication rights to the entire Bay area while, at the same time,
refusing to publish 90% of those syndicated columns for which it has
contracted, Chronicle has at the very least illustrated a prima facie case of
bad faith and has very possibly violated the anti-trust laws. It is
difficult for Chronicle to argue -- unblushing at least -- that such extensive
territorial restrictions are necessary to protect the rights of those
columnists whose columns Chronicle never intended to publish. The
majority -- as it does so often -- resolves this thorny question by simply
ignoring it.
Second, there is a serious question
in my mind about whether Chronicle exhibited good faith in entering into its
Joint Operating Agreement with its competing newspaper, the Examiner.
That agreement was executed in 1964, at the same time the Justice Department
was proceeding against a similar agreement in Tucson, Arizona. Chronicle
argues that it did not indicate bad faith by executing this agreement in these
circumstances because, despite advice of counsel (which argued against seeking
Justice Department approval), Chronicle's president nevertheless wrote to the
Justice Department seeking approval of the agreement. That letter,
however, was written in 1965 -- after the agreement had become a fait accompli;
and, in any event, the Justice Department advised Chronicle that the agreement
might well be subject to attack at some future time.
The majority does not consider the
question of Chronicle's bad faith in these circumstances. Rather, the
majority simply notes that the Newspaper Preservation Act of 1970 grants
retroactive protection to this Joint Operating Agreement and also precludes
this or any other agency from penalizing the parties to that agreement.
If this statute grants limited retroactive antitrust immunity to any company,
it [*833] grants it to Chronicle's agreement only if either
Chronicle or Hearst (owner of the Examiner) had been in sufficient financial
straits to meet the Act's requirement that all but one newspaper to an
agreement of this sort be in serious financial difficulty.
It is not clear to me that the Hearing
Examiner made such a finding with regard to either of these newspapers.
But perhaps the more important point is that, at the time this agreement was
reached, there was no Newpaper Preservation Act, and Chronicle's conduct was
certainly designed for purposes which must be viewed as anticompetitive and
which, at the time, were almost surely illegal. See Citizens Publishing
Co. v. U.S., 394 U.S. 131 (1969). Though the statute would appear to preclude
the FCC from attempting to interfere with this agreement (provided it meets the
statutory test regarding financial difficulty), the statute does not prevent us
from considering Chronicle's apparent bad faith in entering into this
agreement.
When viewed together, then,
Chronicle's joint operating agreement and its territorially exclusive
syndication contracts, if not illegal, at least suggest that Chronicle was
attempting to utilize its powerful media control in the San Francisco market
for purposes antithetical to the public interest. Under � 309 of
the Communications Act of 1934, the FCC has no choice but to deny a renewal
application where the licensee's conduct, even if not illegal, fails to serve
the public interest. This, in my view, is definitely that case.
II. NEWS MANAGEMENT
Complainants contend that the
Chronicle Broadcasting Co. Manipulated KRON-TV's news and public affairs
coverage in an effort to enhance and further Chronicle's CATV and newspaper
interests. In essence, these allegations suggest further abuses arising
from Chronicle's already ample media holdings in the San Francisco area.
In our order designating this issue for hearing, we placed the burden of
introducing evidence on the complainants but put the ultimate burden of proof
on the licensee.
Complainant Kihn was employed at
KRON-TV for several years as a cameraman. He explained that he became
disillusioned with KRON's alleged policy of manipulating news and public
affairs coverage of numerous events in an apparent effort to enhance
Chronicle's CATV and newspaper interests. Such disillusionment led Kihn
to compile a diary of abuses. Several instances of such alleged
manipulation were reviewed during the hearing, and I deal here only with some
of the more egregious examples, examples which, in turn, received equally
egregious "resolution" by both the staff and the majority.
First, complainants alleged that
KRON-TV engaged in numerous activities designed to encourage local communities
to grant Chronicle's pending applications for CATV franchises.
Robert Anderson, a KRON writer
assigned to do a documentary dealing with Vallejo, California (where Chronicle
was seeking a franchise) testified that when he suggested an expose of that
community's political factionalism, Harold P. See, one of Chronicle's
[*834] officers and directors, told him to kill the story in order not to
jeopardize Chronicle's franchise application.
See, of course, denied the
conversation. The Hearing Examiner found that Anderson was not attempting
to falsify his testimony, though with the exception of See's allegedly extraordinary
remarks, Anderson's memory of the events regarding the documentary was
vague. The staff appears to hold Anderson's "dim" memory
against him. Personally, I can see no reason why Anderson should have
recalled any of the detailed events surrounding the Vallejo project except for
any events which might have appeared bizarre. See's alleged admonishments
were surely bizarre, and it does not seem at all surprising that those remarks
are the ones Anderson recalled.
The Hearing Examiner concluded that
the evidence was inconclusive. He then chose, for reasons which remain
unclear, to believe See's denial. The majority is eager to agree.
On another occasion, when KRON
produced a one-half hour program on the San Carlos "Chicken Ball"
(Chronicle also had a pending CATV application in San Carlos), a KRON cameraman
testified that he heard KRON's news director tell the assignment editor (in the
presence of one of Chronicle's corporate directors) that the extensive KRON
coverage was due to the pending CATV franchise. The majority does not
argue that this and similar statements were never made; rather, the majority
argues that they were made only by lower or middle management officials, not by
major Chronicle officials.
There is also evidence that with
respect to South San Francisco (where Chronicle also had a CATV application
pending), See ordered KRON's news director to cover a story in that community
in order to improve Chronicle's CATV chances. Kihn produced a copy of a
memo from the news director to this effect, but, not surprisingly, the original
of that memo no longer appears in KRON's files. See denies having so
instructed his news director, though See admits that when the completed film
was accidentally destroyed, See did write the mayor of South San Francisco
apologizing and urging him not to hold the film's loss against Chronicle's
pending CATV application.
Amazingly, the staff and majority
conclude that "a finding that CATV interests affected KRON's programming
is not warranted."
Complainants also allege that KRON
manipulated certain news stories in order to foster Chronicle's newspaper
interests. For example, complainants allege that KRON refused to
broadcast news of the Chronicle-Examiner joint agreement and that KRON also
refused to broadcast news of a threatened Teamsters Union strike against San
Francisco's newspapers.
Kihn alleges further that he was
ordered by a fellow reporter to avoid extensive coverage of events occurring
during a prolonged strike against the Chronicle newspaper. The staff
concluded, without either explanation or supportive testimony, that Kihn and
the reporter had "had a simple disagreement on the value" of the
story.
In response to evidence of various
memoranda from See and the KRON news director concerning the need for Chronicle's
media sources to maintain a good public image regarding Chronicle's media
[*835] interests, the staff simply asserted, without any apparent basis,
that See was concerned only with news accuracy.
There are, of course, many other
allegations of news manipulation and an equal number of facile FCC
responses. What emerges from these responses is the rather disturbing
realization that no matter what the allegation, no matter what the evidence, no
matter how clear the proof, complainants never had a chance. Aside from
simply refusing to believe complainants' allegations, and aside from finding
flimsy justifications for very damaging documents, the majority has employed
two primary tools to defeat complainants' case against KRON.
First, the majority asserts that
wherever the facts are so clear that incriminating manipulative conduct by
various middle-management personnel cannot simply be disregarded, such conduct
will not be held against the Chronicle corporation. Aside from raising
the question whether news manipulation by middle-management personnel somehow
serves the public interest better than manipulation that is personally
supervised by the corporate president, the majority's approach makes it almost
impossible for these and other complainants to call corporate activities into
serious question.
It is the rare case, indeed, where a
member of the public -- or even a station's cameraman -- will be able to trace
back orders from middle-management to the corporation's highest
officials. The majority, by requiring that the corporation's highest
executives must be proved to have had knowledge of -- and to have condoned --
middle-management conduct, erects an impenetrable shield around the corporate
vehicle. The majority has recently expressed its preference for corporate
-- as opposed to individual -- illegality, see Teleprompter Cable
Systems, F.C.C. (1973), and so
it simply extends that philosophy in this case.
But even assuming arguendo that the
majority is correct in its holding that Chronicle's highest officials neither
knew about nor approved the conduct of KRON's middle-management, the majority
would seem to have established a prima facie case that Chronicle's highest
officials simply abdicated their role as corporate supervisors. The majority,
of course, denies that complainants have established such a case of faulty
supervision, but the majority does not even stop to ponder that it has done so
itself.
In those cases where certain of
Chronicle's higher management officials were allegedly linked to the various
events of alleged news manipulation, both the staff and the majority conclude
that the complainants failed to carry their burden of proof with regard to the
motives of such high officials. But, as we stated in our designation order,
the ultimate burden of proof in this area was properly placed on the licensee
because the facts surrounding Chronicle's conduct in this area were peculiar
within its knowledge.
The Hearing Examiner concluded,
however, that complainants could not prevail on the news management issue
absent "clear, convincing and unambiguous evidence" of the licensee's
motives. Complainants suggest that such a standard requires that they
prove KRON's motives beyond a reasonable doubt rather than by a preponderance
of the evidence [*836] and that such a proof requirement reverses
the burdens as determined in our designation order.
Complainants are surely correct, but
both the staff and the majority attempt to support the Examiner's conclusions
through reliance on our decision in Hunger in America, 20 F.C.C. 2d 143 (1969),
where the Commission held that examples of alleged news management cannot be
established absent evidence extrinsic to the actual contested programming
content. And, indeed, if a complaint of news management were to rely
solely upon program content, the Commission would encounter substantial First
Amendment problems if it did not demand such extrinsic evidence.
But the point in the instant case is
that complainants have produced "extrinsic evidence," indeed voluminous
extrinsic evidence, to establish KRON's rather insidious motives for the
various programming practices documented in the petition to deny. Such
evidence is not only extrinsic to program content but, though it includes
"speech" to the extent that it involves conversations and management
orders, it is surely not subject to First Amendment protections. Such
conversations were clandestine. They were surely not designed to
encourage debate on public issues. Further, those words which were
introduced as evidence were the sort of speech encountered in conspiracy cases
where X orders Y to "take care of" Z. What the majority holds,
in effect, is that even if it is clear that X so directed Y, principles of free
speech somehow demand that X's motives be established by proof beyond a
reasonable doubt. This, I think, is absurd.
Like the majority's approach to the
middle-management problem, the majority's imposition of such an impossible and
unreasonable burden of proof not only illustrates the sort of typical FCC
"curious neutrality in favor of the licensee" prohibited by the court
in Office of Communications of United Church of Christ v. FCC, 425 F. 2d 543
(D.C. Cir. 1969), but it also reveals the extent to which this Commission will
go to free a corporation from the implications of its own conduct.
In the instant case, complainants
Kihn and Streeter have established substantial evidence of abusive conduct by
the Chronicle Broadcasting Co., conduct which cannot possibly be in the public
interest. Complainants documentation of the alleged incidents of news
management and manipulation are extensive and, in my view, terribly convincing
and devastating. But the majority -- in a manner very similar to that
employed by various White House officials confronted with similarly damning
charges with regard to corrupt practices -- squirms, twitches, and fidgets to
avoid the truth, truth which can only lead the FCC to deny Chronicle's renewal
applications.
Though the majority attempts to
argue that complainants have failed to make out a particularly powerful case
against Chronicle, it is obvious that the licensees was of a decidedly
different view. For, once confronted with this petition to deny and the
accompanying factual allegations which Chronicle recognized as terribly
serious, the licensee did the only thing it thought adequate to head off the
complainants' charge: it attempted to harass and intimidate Kihn and Streeter.
[*837] III. THE
INVESTIGATION
Upon learning that complainants had
filed a petition to deny Chronicle's license renewal applications, the licensee
employed a private firm to investigate Kihn. See contended that this
investigation was conducted solely to determine whether Kihn was leading
disgruntled KRON employees in some form of concerted conduct against the
licensee.
The investigators gave false names
to various records custodians in order to prevent Kihn from learning of the
investigation. The investigators followed Kihn by automobile and
interviewed his neighbors. Kihn only discovered that he was being
investigated when he noticed a car was following him after a malfunction in the
investigators' two-way radio system.
Upon being discovered, the
investigation was temporarily discontinued. But, after a hearing had been
designated in this case, KRON had the stupidity, brazen confidence in the FCC,
and gall to continue the invasion of Kihn's privacy. But, the Hearing
Examiner had even more gall when he concluded that under the circumstances, it
would have been imprudent for KRON to have declined to engage in such an
investigation. One could, I suppose, say the same thing about General
Motors' investigation of Ralph Nader, or the Republicans'
"investigation" of the Democratic National Committee.
The staff found solace in the fact
that the investigation was "discreet." Apparently, had the
investigators been total buffoons, physically thrusting themselves awkwardly
into Kihn's path, the staff might have been concerned. But, no doubt,
were the latter the case, the staff would simply note that nobody can really be
harassed or intimidated by such incompetence.
Like the staff before it, the
majority holds that the investigation does not reflect badly upon KRON and does
not suggest that Chronicle is unqualified to hold broadcast licensee. And
this despite the fact that this investigation was almost certainly a violation
of Kihn's rights to privacy. See, e.g., Nader v. General Motors Corp., 25
N.Y. 2d 560, 255 N.E. 2d 765 (1970), which case has been expressly followed by
the California court in which complainant Kihn has brought a civil action
against the investigative firm.
In effect, the majority asserts --
and this is surely a most astounding comment, even in an opinion loaded with
astounding comments -- that the fact that Chronicle may have violated the law
does not mean that it has violated the public interest. n6 I had always thought that one is
entitled to presume that conduct prohibited by law is not in the public
interest. The majority, however, takes a decidedly more libertarian view
-- at least when the interests of large corporations are at stake.
n6 Oddly enough, with respect to the Joint Operating Agreement, the majority appears to conclude that since that agreement does not violate the law, it cannot be a violation of the public interest. While I have substantial problems with the majority's analysis of the joint operating agreement, the majority's own reasoning would seem to suggest that if a licensee does violate the law, he has probably violated the public interest as well. The majority asserts. However, that the "short answer" to complainants' contention to this effect is that violations of California law by Chronicle have no relevance to the question whether Chronicle is a qualified licensee. The short answer to the majority's "short answer" is unprintable, even in the FCC official reports.
[*838] The majority
concludes further that this investigation was not designed to harass or
intimidate Kihn or Streeter. What, then, was the purpose of this covert
attempt to pry into complainants' private lives? Why, in short, did
Chronicle investigate complainants' marital affairs if not in an attempt to
uncover damning and intimidating evidence?
The majority concludes, mercifully,
with the assertion that since these investigations obviously did not divert
complainants from the their attack on KRON's licenses, such investigations do
not suggest that KRON's licenses should not be renewed. Perhaps this is
the most remarkable conclusion of them all, for the point is not whether Kihn
and Streeter were successfully intimidated (though Chronicle certainly tried
its best); it is, rather, whether potential complainants against future renewal
applications of different licensees will be made reluctant by today's approval
of Chronicle's conduct. And I think there can be no question but that
members of the public will think twice before initiating petitions to deny once
they realize that such petitions could open them up to investigations of this
type.
On at least one prior occasion the
majority has expressed its disapproval of such intimidating tactics by
licensees, Fort Collins Broadcasting, 38 F.C.C. 2d 707 (1972). But, as in that
case and today's such admonishments are words and nothing more. n7
n7 During the Commissioners' brief discussion of its opinion, the majority decided to add some concluding language disapproving the scope of the licensee's investigation of Kihn. Such disapproval, the majority assured, would not lead to denial of renewal but would serve as a "warning" to licensees not to conduct such investigations in the future. Similar cautionary language was added to the Fort Collins decision when it was discussed late last year. The sad fact is that such admonishments are words but nothing more, for no licensee could have believed, prior to the issuance of the majority's opinion in today's case, that an investigation of the sort engaged in here could serve either the public interest or the FCC's processes.
And therein lies the tragedy of
today's decision. Today the FCC majority has proved beyond a shadow of a
doubt that the public must lose when it attempts to correct the grossest wrongs
committed by the largest of America's communications corporations. The
fact is that this entire license renewal proceeding has been a ritual -- nothing
more and nothing less. It has wasted countless amounts of time and
effort. It has produced some incredible casuistry from those charged with
finding the facts and enunciating the appropriate policy choices. But the
result was preordained a long time ago. The long process of hearings and
opinion-writing has added nothing of value either to the law or the public
interest. The only addition has been paper.
I dissent. n8
n8, By my
participation in this case, I obviously concur, without comment, in the majority's
disposition of the disqualification issue in this case.
APPENDIX:
APPENDIX
Rulings on
Exceptions of Complainants Albert Kihn and Blanche Streeter to the Initial
Decision
|
Exception No. |
Ruling |
|
1 (1st
Para., 1st sent.), 1 |
Denied.
By commonly accepted |
|
|
definition,
the San |
|
(2d
para.), 38. |
Francisco
"Bay Area" is |
|
|
comprised
of the nine |
|
|
counties
bordering on the |
|
|
Bay.
Since these nine |
|
|
counties
comprise the area |
|
|
of the
Chronicle's pri- |
|
|
mary
circulation, the area |
|
|
of active
competition |
|
|
between
the Chronicle and |
|
|
other Bay
Area news- |
|
|
papers,
the area of territorial |
|
|
exclusivity
com- |
|
|
monly
granted the Chronicle |
|
|
in its
contracts for |
|
|
syndicated
materials, and |
|
|
since the
area roughly |
|
|
approximates
the Grade B |
|
|
contour
of KRON-TV, |
|
|
the
Hearing Examiner, in |
|
|
making
the comparisons |
|
|
of
newspaper circulations, |
|
|
properly
chose the en- |
|
|
tire nine
county area as the |
|
|
relevant
market. |
|
1 (1st
para., 2d sent), 17 |
Denied.
The Examiner's |
|
|
findings
are adequately sup- |
|
(p. 6),
30 np. 10), 34, 35 |
ported by
the record |
|
|
evidence
and represent a fair |
|
(re
KRON-TV), 48 (1st |
and
reasonable interpretation |
|
|
thereof. |
|
sent.),
51, 52, 71 (p. |
|
|
21), 145,
160, 164, 168, |
|
|
194, 195
(2d & 3d sent.), |
|
|
221, 269,
271, 280, 281, |
|
|
289,
293-295, 323, 336, |
|
|
354 (1st
para.), 362, |
|
|
363 (1st
sent.), 364. |
|
|
2 |
Denied.
The requested |
|
|
finding
would provide only |
|
|
a partial
picture of |
|
|
the
actual situation and is |
|
|
thus
contrary to the |
|
|
weight of
the evidnece. See |
|
|
KRON Ex.
No. 154, App. A. |
|
3-5, 7, 8 |
Denied.
The requested |
|
|
findings
assume that the |
|
|
relevant
market is a five |
|
|
county
area, whereas the |
|
|
Examiner
has properly |
|
|
found the
relevant market |
|
|
to be a
nine county area. |
|
|
See the
ruling on excep- |
|
|
No. 1,
above. |
|
6 |
Denied.
The requested |
|
|
finding
is of no decisional |
|
|
significance.
Moreover, |
|
|
"California
Living" is a |
|
|
supplement
to the Sunday |
|
|
Examiner
and Chronicle |
|
|
newspaper
and is not |
|
|
a
separate magazine in the |
|
|
usual sense. |
|
9 |
Denied.
Complainants' |
|
|
contention
that the survey |
|
|
was based
on hearsay |
|
|
and
should thus be given no |
|
|
evidentiary
weight does |
|
|
not
represent the appli- |
|
|
cable
law. Cf., for instance |
|
|
In Re
Crown Zellerbach |
|
|
Corporation,
51 FTC 1105 |
|
|
(1955);
United States v. |
|
|
88 Cases,
Etc., Bireley's |
|
|
Orange
Beverage, 187 F. |
|
|
2d 967
(3d Cir. 1951) |
|
|
cert.
denied, 342 U.S. 861 |
|
|
(1951).
Moreover, the |
|
|
Complainants
were afforded |
|
|
ample
opportunity to |
|
|
submit
rebuttal evidence and |
|
|
to
conduct such cross-examination |
|
|
as they
believed |
|
|
necessary
to show that |
|
|
the
survey was either im- |
|
|
proper or
unrepresentative |
|
|
as is
contended. Fur- |
|
|
termore,
the underlying |
|
|
documents
upon which |
|
|
the
survey was based |
|
|
were
always available to |
|
|
the
Complainants and |
|
|
were not
withheld from |
|
|
them.
The Examiner's |
|
|
findings
and conclusions |
|
|
were
correct and are |
|
|
supported
by law. Wirtz v. |
|
|
Baldor
Electric Co., 337 |
|
|
F. 2d 518
(D.C. Cir. 1963). |
|
10, 22,
25, 26-29 (pp. 9- |
Denied.
The requested |
|
|
findings
are of no decisional |
|
10),
29-33 (pp. 11-12), |
significance. |
|
44 (p.
16), 46 (p. 16, 1st |
|
|
sent.),
68 (p. 21), 92, 96, |
|
|
100, 108,
110, 156, 170, |
|
|
176, 184,
188, 192, 212, |
|
|
252, 262,
266, 278, 290, |
|
|
297, 314,
316, 383, 515, |
|
|
522, 533,
534. |
|
|
11, 50,
77, 79, 81, 105, 158, |
Denied.
The Examiner's |
|
|
findings
are adequately |
|
175, 179,
181, 182, 223, |
supported
by the record |
|
|
evidence
and represent a |
|
224, 237,
254-256, 261, |
fair and
reasonable |
|
|
interpretation
thereof. Further |
|
332. |
Complainants'
requested |
|
|
findings
are of no de- |
|
|
cisional
significance. Also, |
|
|
the
Examiner is not re- |
|
|
quired to
make findings |
|
|
on every
conceivable point |
|
|
on which
evidence is offered. |
|
12 |
Denied.
The Examiner |
|
|
has found
that Western TV |
|
|
Cable
does not propose |
|
|
to
activate its San Fran- |
|
|
cisco
franchise (I.D. |
|
|
para.
9). Thus, the requested |
|
|
finding
is of no decisional |
|
|
significance. |
|
13-16
(pp. 4-5), 16 (p. 6), |
Denied.
The Examiner's |
|
|
findings
on these matters |
|
24, 49,
67 (pp. 20-21), |
of record
are, for all |
|
|
intents
and purposes, simi- |
|
66 (p.
22), 72 (p. 24), |
lar to
those requested |
|
|
by the
Complainants. The |
|
78, 91,
98, 99, 157, 161, |
additional
details outlined |
|
|
in
Complainants' ex- |
|
163, 189,
210, 227, 238, |
ceptions
would add |
|
|
nothing
of substance to the |
|
240, 274
(1st para.), 298, |
Examiner's
findings |
|
|
and are
therefore of no de- |
|
350-352,
353 (1st sent.), |
cisional
significance. |
|
17 (p. 5) |
Denied.
We find nothing |
|
|
unusual
or illegal in the |
|
|
Chronicle
trade agreement |
|
|
to which
the Complain- |
|
|
ants'
refer, and thus |
|
|
the
requested findings in |
|
|
this
respect would be |
|
|
decisionally
insignificant. The |
|
|
requested
finding as to |
|
|
money
spent by the San |
|
|
Francisco
Chronicler for |
|
|
advertising
in other media |
|
|
owned or
controlled by |
|
|
Chronicle
is contrary to the |
|
|
record
and the exhibit |
|
|
cited
(see B. B. Ex. No. 4, |
|
|
p. 5). |
|
15 (p.
6), 18, 35 (re. news- |
Denied.
The Complainants' |
|
|
exceptions
clearly vio- |
|
paper),
36, 37, 45 (p. |
lat
Section 1.277(a) |
|
|
of the
Commission's Rules |
|
15),
146-151, 206, 207, |
in that
they are |
|
|
argumentative
and/or unsup- |
|
209,
242-250, 253, 257- |
ported by
record citations. |
|
260, 263,
268, 270, 274 |
|
|
(2d
para.), 299-303, |
|
|
310-313,
327, 344-346, |
|
|
349, 353
(2d & 3d |
|
|
sents.),
503, 504. |
|
|
19, 74
(p. 24), 272, 337, |
Denied.
Section 1.277(a) |
|
|
of the
Commission's Rules |
|
356. |
provides
that each exception |
|
|
to an
initial deci- |
|
|
sion
shall contain specific |
|
|
references
to the (pages) |
|
|
of the
transcript of |
|
|
hearing,
exhibit, or order on |
|
|
which the
exception is |
|
|
based.
Complainants' ex- |
|
|
ceptions
contain no such |
|
|
citations.
In addition, the |
|
|
requested
findings are of |
|
|
no
decisional significance. |
|
20, 21 |
Denied.
These exhibits |
|
|
were
given proper weight by |
|
|
the
Examiner. The exhibits |
|
|
were
prepared by an |
|
|
expert on
the basis of |
|
|
the best
information and |
|
|
techniques
available. |
|
|
The
originally prepared ex- |
|
|
hibit was
revised in accordance |
|
|
with
suggestions |
|
|
by the Complainants
and |
|
|
the
Bureau (Tr. 4493- |
|
|
4508,
4602-13). Further, |
|
|
the
Examiner categorized |
|
|
his
findings as estimates |
|
|
and
properly treated them |
|
|
as such
(I.D. fn. 17). |
|
23, 55,
56, 69 (p. 21), 70 |
Denied.
The Examiner's |
|
|
findings
are adequately sup- |
|
(p. 21),
82, 83, 112-116), |
ported by
the record evidence |
|
|
and
represent a fair |
|
153, 154,
198, 203, 319, |
and
reasonable interpretation |
|
|
thereof.
Further, |
|
320, 365,
366 (2d-5th |
Complainants'
exceptions |
|
|
are
unsupported by a |
|
and 7th
sents.) |
citation
to the record as |
|
|
required
by Section 1.277 |
|
|
(a) of
the Commission's Rules. |
|
39 |
Denied.
Complainants' |
|
|
assumption
is not supported |
|
|
by the
record. Further, |
|
|
the
exception is not sup- |
|
|
ported by
a citation to |
|
|
the
record as required by |
|
|
Section
1.277(a) of the |
|
|
Commission's
Rules. |
|
40 |
Denied.
The requested finding |
|
|
is not
supported by |
|
|
the
record. B.B. Ex. |
|
|
No. 39
refers only to the |
|
|
advertising
revenue of the |
|
|
San
Francisco Chronicle. |
|
41 (pp.
13-14) |
Denied.
The requested finding |
|
|
is
contrary to the evi- |
|
|
dence of
record (see the |
|
|
stipulation
of the parties at |
|
|
Tr.
5397). |
|
41 (p.
14) |
Denied.
The Examiner's |
|
|
finding
is not based upon |
|
|
KRON Ex.
No. 183 but |
|
|
rather
upon testimony elic- |
|
|
ited by
counsel for Complainants |
|
|
and the
Broadcast |
|
|
Bureau
concerning the |
|
|
Hearst
losses (Tr. 5049, |
|
|
5070).
The "actual figures" |
|
|
cited by
Complainants |
|
|
in their
exception are |
|
|
irrelevant
since the exhibit |
|
|
upon
which they are based |
|
|
has not
been admitted |
|
|
into
evidence. The Hearing |
|
|
Examiner
properly |
|
|
precluded
testimony |
|
|
relating
to the effects of a |
|
|
modern
plant on Hearst's |
|
|
operations,
since such |
|
|
matters
relate solely to |
|
|
the San
Francisco Exam- |
|
|
iner and
are therefore |
|
|
irrelevant
to this proceed- |
|
|
ing.
The last sentence |
|
|
of
Complainants' exception |
|
|
is
speculative, argumentative |
|
|
and is
not based on |
|
|
the
evidence of record. |
|
42 |
Denied.
The Examiner's |
|
|
finding
is supported by the |
|
|
evidence
(Tr. 5111-12, |
|
|
5179 (2d
page so numbered), |
|
|
5258-59). |
|
43 (p.
15), 47, 66 (p. 20) |
Denied.
The Examiner's |
|
|
finding
concerning the "basic |
|
|
thrust"
of Chronicle's |
|
|
campaign
is supported by |
|
|
the
evidence (Tr. 5132-33, |
|
|
5180-81).
Complainants' |
|
|
assertion
relating to |
|
|
accumulated
surplus is of no |
|
|
decisional
significance. |
|
|
The
Examiner's finding that |
|
|
the
profits generated by |
|
|
Chronicle's
broadcast in- |
|
|
terests
were used to support |
|
|
its
newspaper inter- |
|
|
ests is
supported by |
|
|
the
evidence. In addition, these |
|
|
exceptions
are not |
|
|
supported
by citations to the |
|
|
record as
required by |
|
|
Section
1.277(a) of the |
|
|
Commission's
Rules. |
|
44 (p.
15) |
Denied.
The Examiner's |
|
|
finding
reflects the census |
|
|
data
determined and |
|
|
published
by an agency of the |
|
|
United
States government |
|
|
and is a
proper subject |
|
|
for
judicial notice. |
|
|
Complainants
do not allege that |
|
|
they were
denied "an |
|
|
opportunity
to show the con- |
|
|
trary"
as permitted by |
|
|
Section
7(d) of the Admin- |
|
|
istrative
Procedure Act. |
|
|
Alkima
Broadcasting Co., |
|
|
21 R.R.
742a, 742c (1961). |
|
46 (pp.
15-16) |
Denied.
The record reflects |
|
|
that the
sale of the San |
|
|
Francisco
Examiner |
|
|
was not
an available alter- |
|
|
native
(Tr. 6310), and |
|
|
the
Complainants cite no |
|
|
evidence to
the contrary. |
|
|
The
Hearing Examiner's |
|
|
evidentiary
ruling was |
|
|
correct
for the reason he |
|
|
stated
(Tr. 4796). |
|
43 (p.
16) |
Denied.
The requested finding |
|
|
is of no
decisional sig- |
|
|
nificance.
The fact |
|
|
remains
that Chronicle volun- |
|
|
tarily
requested a Business |
|
|
Review
Letter and the |
|
|
Civil
Investigative Demand |
|
|
was
issued thereafter. |
|
45 (p.
16, 1st sent.), 58-62, |
Denied.
The Hearing |
|
|
Examiner
found that although |
|
64 (p.
20). |
Mr.
Thieriot "was not |
|
|
privy to
the Examiner's |
|
|
financial
records,..." |
|
|
he knew
that it was losing |
|
|
money
(I.D. para. 37). |
|
|
This
finding is supported |
|
|
by the
record (Tr. 4845-46, |
|
|
4848-49).
That neither |
|
|
Mr.
Thieriot nor any |
|
|
other
executive of Chronicle |
|
|
knew
exactly how much |
|
|
money the
Examiner was |
|
|
losing is
not of decisional |
|
|
significance
since the |
|
|
record
shows that Mr. |
|
|
Thieriot
knew that the |
|
|
major
question before |
|
|
the
Department of Justice |
|
|
was the
financial condition |
|
|
of the
Hearst news- |
|
|
papers
(Tr. 5259). In |
|
|
addition,
Exception Nos. 60- |
|
|
62 are
not supported |
|
|
by
citations to the record as |
|
|
required
by Section |
|
|
1.277(a)
of the Commission's |
|
|
Rules. |
|
45 (p.
16, 2d sent.) |
Denied.
The requested |
|
|
finding
is irrelevant to this |
|
|
proceeding
since it |
|
|
relates
solely to the Hearst |
|
|
newspapers. |
|
46 (p.
16, 2d sent.), 72 |
Denied.
See paras. 49-52 |
|
|
of our
decision herein. |
|
(p. 21). |
|
|
48 (2d
sent.) |
Denied.
Complainants' |
|
|
exception
is contrary to the |
|
|
evidence.
The record |
|
|
indicates
that Mr. Thieriot's |
|
|
primary
motives were |
|
|
the
survival of the Chronicle |
|
|
newspaper
and the |
|
|
maintenance
of two editorial |
|
|
voices in
San Francisco |
|
|
(Tr.
4863, 4866, 5258-59). |
|
|
In
addition, this exception |
|
|
is not
supported by a |
|
|
citation
to the record |
|
|
as
required by Section |
|
|
1.277(a)
of the Commission's |
|
|
Rules. |
|
|
53, 54 |
|
Denied.
The requested |
|
|
|
findings
are of no decisional |
|
$'significance
in light |
|
|
|
of the
Newspaper Preserva- |
|
|
tion Act,
15 U.S.C. 1801. |
|
|
In
addition, Complainants' |
|
|
exceptions
are not |
|
|
supported
by a citation to the |
|
|
record as
required |
|
|
by
Section 1.277(a) of the |
|
|
Commission's
Rules. |
|
57 |
Denied.
The requested |
|
|
finding
is contrary to the evi- |
|
|
dence and
is not supported |
|
|
by
Complainants' cita- |
|
|
tion to
the record. |
|
63 |
Denied.
The requested |
|
|
finding
is contrary to the |
|
|
evidence
(Tr. 6268-72, |
|
|
6308-09)
and is not sup- |
|
|
ported by
a citation |
|
|
to the
record as required by |
|
|
Section
1.277(a) of the |
|
|
Commission's
Rules. |
|
65 (p.
20) |
Denied.
The evidence of |
|
|
record
indicates that the sale |
|
|
of the
San Francisco |
|
|
Examiner
was not an avail- |
|
|
able
alternative (Tr. |
|
|
6310) and
Complainants cite |
|
|
no
evidence to the |
|
|
contrary.
The fact that the |
|
|
Chronicle
was never |
|
|
placed on
the open market for |
|
|
sale is
irrelevant |
|
|
and is
not of decisional |
|
|
significance. |
|
73 (p.
21) |
Denied.
The Examiner's |
|
|
finding
is correct and is |
|
|
supported
by the record. |
|
|
The
requested finding is |
|
|
not
supported by Complainants' |
|
|
citations
to the |
|
|
record. |
|
64 (p.
22) |
Denied.
The record indicates |
|
|
that the
increase in |
|
|
advertising
rates was |
|
|
caused by
an increase in |
|
|
costs
(Tr. 4781, 4789, |
|
|
4804-05). |
|
65 (p.
22) |
Denied.
The requested |
|
|
finding
is contrary to the evi- |
|
|
denied.
The record indicates |
|
|
that the
rates were |
|
|
never
reduced because |
|
|
there was
no way to reduce |
|
|
them and
not incur losses |
|
|
(Tr.
4803). |
|
67 (pp.
22-23) |
Denied.
It was conceded |
|
|
that the
committee was un- |
|
|
able to
find a situation |
|
|
totally
comparable to that |
|
|
in San
Francisco, and |
|
|
and
Examiner so found (I.D. |
|
|
fn.
29). It cannot be said |
|
|
that the
committee erred |
|
|
in
choosing Detroit, |
|
|
Michigan,
as the next best |
|
|
alternative. |
|
68 (p.
23) |
Denied.
The Examiner's |
|
|
findings
are supported by |
|
|
the
record (Tr. 5307-15, |
|
|
6101-02,
6108, KRON Ex. |
|
|
Nos. 177,
187), and the |
|
|
studies
were properly ac- |
|
|
corded
evidentiary weight. |
|
|
In
addition, Complain- |
|
|
ants'
exception is not |
|
|
supported
by a citation to the |
|
|
record as
required by |
|
|
Section
1.277(a) of the Com- |
|
|
mission's
Rules. |
|
69 (p.
23), 621 |
Denied.
The record |
|
|
supports
the Examiner's charac- |
|
|
terization
oif Prof. |
|
|
Rostow as
an experty witness |
|
|
(Tr.
6191-97, KRON |
|
|
Ex. No.
193) and his opin- |
|
|
ions and
conclusions |
|
|
were
within his area of |
|
|
competence
and were |
|
|
subjected
to extensive cross- |
|
|
examination.
The weight |
|
|
to be
accorded Prof. |
|
|
Rostow's
expert testimony |
|
|
was
within the discre- |
|
|
tion of
the Examiner |
|
|
(Arc
Realty Co. v. Commis- |
|
|
sioner of
Internal Revenue,$ |
|
295 F. 2d
98, 103, (8th |
|
|
|
Cir.
1961)). In addition, |
|
|
Complainants'
Exception |
|
|
No. 69
(p. 23) is not |
|
|
supported
by a citation to |
|
|
the
record as required |
|
|
by
Section 1.277(a) of the |
|
|
Commission's
Rules. |
|
70 (pp.
23-24) |
Denied.
The Examiner's |
|
|
finding
is supported by the |
|
|
record,
and the Complainants' |
|
|
requested
finding is |
|
|
contrary
thereto (Tr. |
|
|
5048-51,
5075-76, 5082-83, |
|
|
6258-59,
6304-05, 6310). |
|
|
In
addition, the requested |
|
|
finding
is not supported |
|
|
by a
citation to the record |
|
|
as
required by Section |
|
|
1.277(a)
of the Commis- |
|
|
sion's
Rules. |
|
71 (p.
24, 1st and 2d |
Denied.
The Examiner's |
|
|
finding
is supported by the |
|
sents.) |
evidence,
and the |
|
|
Complainants'
requested finding |
|
|
is
contrary thereto (Tr. |
|
|
4772-73,
5242-43, 5384-85).$ |
|
In
addition, the requested |
|
|
|
finding
is not supported |
|
|
by a
citation to the |
|
|
record as
required by Sec- |
|
|
tion
1.277(a) of the |
|
|
Commission's
Rules. |
|
71 (p.
24, 3d sent.) |
Denied.
The record |
|
|
indicates
that the percentage of |
|
|
advertisers
using the |
|
|
combination
rate is in line |
|
|
with
national trends |
|
|
(Tr.
6117-18, 6127, 6149-50, |
|
|
6167-68),
and the exact |
|
|
percentage
in San Fran- |
|
|
cisco is
without decisional |
|
|
significance.
The "sanc- |
|
|
tions"
alleged by |
|
|
Complainants
are not supported |
|
|
by the
evidence. The |
|
|
record
indicates that the |
|
|
Chronicle
Only and |
|
|
the
Examiner Only want ads |
|
|
are
placed in separate |
|
|
sections
of the newspapers |
|
|
for
reasons of economy |
|
|
of
production (Tr. 4773- |
|
|
74) and
that the Chronicle |
|
|
Only
section receives |
|
|
the same
classification |
|
|
titles
and numbers as those |
|
|
advertisements
appearing |
|
|
in the
combination ad- |
|
|
vertising
(Tr. 4831-32). |
|
73 (p.
24) |
Denied.
Complainants' |
|
|
exception
is without decisional |
|
|
significance.
The Examiner's |
|
|
finding
is supported |
|
|
by the
evidence, and |
|
|
the
Complainants' argument |
|
|
with
respect to the |
|
|
burden of
proof is without |
|
|
merit. |
|
75 |
Denied.
The record |
|
|
indicates
that the linage figures |
|
|
were adjusted
to reflect |
|
|
the
newspaper strike (Tr. |
|
|
5225,
6142-43). In addition, |
|
|
Complainants'
excep- |
|
|
tion is
not supported |
|
|
by a
citation to the record as |
|
|
required
by Section |
|
|
1.277(a)
of the Commission's |
|
|
Rules. |
|
76 |
Denied.
The Examiner's |
|
|
finding
is correct and is sup- |
|
|
ported by
the record |
|
|
(Tr.
4446-48, 5419-21, 5439). |
|
|
In
addition, Complainants' |
|
|
exception
is not sup- |
|
|
ported by
a citation |
|
|
to the
record as required by |
|
|
Section
1.277(a) of |
|
|
the
Commission's Rules. |
|
80 |
Denied.
The Examiner correctly |
|
|
found
that Chronicle |
|
|
has
rights to 70 nationally |
|
|
syndicated
features, |
|
$'most of
which provide |
|
|
|
for
territorial exclusivity |
|
|
(I.D.
paras. 58-60). No |
|
|
useful
purposes would |
|
|
be served
by enumerating |
|
|
each
syndication con- |
|
|
tract
which Chronicle |
|
|
has
executed as the Com- |
|
|
plainants
request. Such |
|
|
additional
findings would |
|
|
be
decisionally insignificant. |
|
84 |
Denied.
The requested |
|
|
finding
is contrary to the |
|
|
record
(Tr. 4584-85) and |
|
|
is not
supported by a |
|
|
citation
thereto as required |
|
|
by
Section 1.277(a) |
|
|
of the
Commission's Rules. |
|
85 |
Denied.
The requested finding |
|
|
is
contrary to the |
|
|
evidence
(KRON Ex. |
|
|
Nos. 155,
178). In addition |
|
|
Complainants'
exception |
|
|
is not
supported by a |
|
|
citation
to the record |
|
|
as
required by Section |
|
|
1.277(a)
of the Commission's |
|
|
Rules. |
|
86 |
Denied.
The requested |
|
|
finding
is contrary to the |
|
|
weight of
the evidence (Tr. |
|
|
4989,
5011-15, 5135-42, |
|
|
5183-84). |
|
87 |
Denied.
The requested |
|
|
finding
is contrary to the |
|
|
evidence
(Tr. 6100-02, 6108, |
|
|
6307-09,
KRON Ex. |
|
|
No.
187). In addition, |
|
|
Complainants'
exception is |
|
|
not
supported by a citation |
|
|
to the
record as required |
|
|
by
Section 1.277(a) of |
|
|
the
Commission's Rules. |
|
88 |
Denied.
The Examiner's finding |
|
in I.D.
para. 76 |
|
|
|
does not
imply that Mr. |
|
|
See's
interest in CATV |
|
|
originated
in 1964 but |
|
|
only that
it matured in |
|
|
1964.
This finding is supported |
|
|
by the
evidence of |
|
|
record.
(Tr. 1393, 1724, |
|
|
KRON Ex.
No. 47). |
|
89 |
Denied.
The requested finding |
|
|
is
contrary to the |
|
|
record.
Mr. See was referring |
|
|
to pay TV
by wire, |
|
|
not CATV
(Tr. 1575-76). |
|
90 |
Denied.
See paragraphs 57-60 |
|
|
of our
Decision. |
|
93 |
Denied.
The Examiner has |
|
|
found
that the purpose |
|
|
of the
community luncheon |
|
|
program
was to deter- |
|
|
mine
community needs and |
|
|
interests
(I.D. fn. 42) |
|
|
and his
finding is supported |
|
|
by the
record. The |
|
|
remainder
of Complainants' |
|
|
exception,
concerning |
|
|
Mr. See's
motives, is speculative, |
|
|
argumentative, |
|
|
and in
large part is totally |
|
|
unsupported
by the |
|
|
record. |
|
94 |
Denied.
The requested finding, |
|
|
as it
concerns Mr. |
|
|
See's
motives, is speculative |
|
|
and
argumentative. |
|
|
In
addition, Complainants' |
|
|
exception
is not sup- |
|
|
ported by
a citation to the |
|
|
record as
required by |
|
|
Section
1.277(a) of the |
|
|
Commission's
Rules. |
|
95 |
Denied.
The requested findings, |
|
|
in the
first sentence, |
|
|
fourth
sentence, and the |
|
|
first
clause of the fifth |
|
|
sentence,
are adequately |
|
|
outlined
in the Examiner's |
|
|
findings
in I.D. para. |
|
|
76.
(Cf., our ruling on |
|
|
Complainants'
Exception |
|
|
No. 88,
supra). The re- |
|
|
mainder
of Complainants' |
|
|
exception
is speculative, |
|
|
argumentative,
and without |
|
|
record
support. |
|
97 |
Denied.
Mr. See clarified his |
|
|
position
with respect to |
|
|
pay TV
(Tr. 1574, lines 16-17). |
|
|
101-104 |
|
Denied.
The Examiner found |
|
|
|
that Mr.
See contacted |
|
|
various
California communities |
|
|
inquiring
about |
|
|
CATV
franchises (I.D. |
|
|
para.
76). The record indi- |
|
|
cates,
and Complainants |
|
|
acknowledge
in their ex- |
|
|
ceptions,
that the contacts |
|
|
referred
to were form |
|
|
letters.
The record further |
|
|
indicates
that these let- |
|
|
ters were
primarily aimed |
|
|
at
obtaining information |
|
|
(Tr.
1731, 1733, 2903-04, |
|
|
2906).
Therefore, the texts |
|
|
of these
letters and the |
|
|
names of
the persons or |
|
|
communities
to which they |
|
|
were sent
is without |
|
|
decisional
significance. |
|
106 |
Denied.
The location of |
|
|
the
communities in which |
|
|
Chronicle
has filed CATV |
|
|
applications
does not re- |
|
|
flect
adversely upon Chronicle. |
|
|
The
record indicates |
|
|
that both
KRON and the |
|
|
Chronicle
are located in |
|
|
San
Francisco and that |
|
|
the
parent company owns |
|
|
no
broadcast or publishing |
|
|
business
elsewhere. We |
|
|
believe,
therefore, that |
|
|
it is
both reasonable and |
|
|
logical
that Chronicle |
|
|
would
seek to enter CATV |
|
|
in this
same area. |
|
107, 366
(6th sent.) |
Denied.
The requested finding |
|
|
distorts
the testimony |
|
|
of Mr.
See. He testified |
|
|
that
KROZ-TV would |
|
|
cover all
news stories, if |
|
|
warranted
out -- "Not to |
|
|
enhance
our competitive |
|
|
position."
(Tr. 1963). |
|
|
109 |
|
Denied.
Since Mr. See was |
|
|
|
responsible
for Chroni- |
|
|
cle's
CATV activities, it |
|
|
was not
improper for him |
|
|
to activities,
it |
|
|
was not
improper for him |
|
|
to
actively promote CATV |
|
|
applications.
Nor can |
|
|
it be
said that the promotional |
|
|
methods
he used |
|
|
were
improper. Finally, |
|
|
the
Examinr has found |
|
|
that
subordinate employees |
|
|
of
KRON-TV were uti- |
|
|
lized on
occasion through |
|
|
March,
1967 (I.D. para. |
|
|
77). |
|
111 |
Denied.
The Examiner's findings |
|
|
are fully
supported |
|
|
by the
evidence of record |
|
|
(Tr.
1681-83, 2881-82, |
|
|
3542-43,
KRON Ex. No. |
|
|
33).
In addition, Complain- |
|
|
ants'
exception is not |
|
|
supported
by a citation to |
|
|
the
record as required |
|
|
by
Section 1.277(a) of the |
|
|
Commission's
Rules. |
|
117 |
Denied.
The Examiner's |
|
|
finding
is correct and is sup- |
|
|
ported by
the record |
|
|
(Tr.
1620-21, 1776-77, 3074, |
|
|
3412-13,
3466, 3650-51, 3667). |
|
118 |
Denied.
Mr. See's testimony |
|
|
has been
taken out of |
|
|
context.
He testified that |
|
|
his
interest in Vallejo as |
|
|
a city
for a possible |
|
|
CATV
franchise was, "Not |
|
|
above any
other city." |
|
|
(Tr.
1396) |
|
119 |
Denied.
The Examiner found |
|
|
that Mr.
See attended |
|
|
the
January 1966, meeting |
|
|
(I.D. fn.
45). The re- |
|
|
mainder
of Complainants' |
|
|
exception
is without |
|
|
decisional
significance. |
|
120 |
Denied.
In response to an |
|
|
interrogatory
concerning |
|
|
the
genesis of the Vallejo |
|
|
documentary,
Chronicle |
|
|
cited
both the March |
|
|
1965 and
March 1966 com- |
|
|
munity
luncheons (B.B. |
|
|
Ex. No.
3, p. 48, Tr. 1617). |
|
|
Although
Chronicle had |
|
|
no active
CATV interest in |
|
|
the area
at the time of |
|
|
the first
luncheon, Mr. See |
|
|
testified
that Chronicle |
|
|
was
"within three weeks" |
|
|
of
sending out the form |
|
|
letter of
inquiry (Tr. 1617). |
|
|
The fact
that the documentary |
|
|
was done
after the |
|
|
letter
was sent does not |
|
|
reflect
adversely on the |
|
|
licensee.
See also paragraphs |
|
|
57-60 of
our Decision. |
|
121 |
Denied.
The Examiner has |
|
|
found
that Chronicle was |
|
|
interested
in CATV in the |
|
|
Vallejo
area (I.D. para. |
|
|
93).
The correspondence |
|
|
between
Mr. See and City |
|
|
Manager
Ficklin is not |
|
|
decisionally
significant in |
|
|
view of
the preponderance |
|
|
of the
other evidence |
|
|
developed
in this case. |
|
122 |
Denied.
The Examiner has |
|
|
made the
findings re- |
|
|
quested
in the first two |
|
|
sentences
of Complainants' |
|
|
exception
(I.D. paras. 80,89). The remainder of |
|
|
Complainants'
exception |
|
|
is of no
decisional |
|
|
significance. |
|
|
123 |
|
Denied.
The Examiner's finding |
|
|
|
is fully
supported by |
|
|
the
evidence of record |
|
|
(Tr.
1404, 1625-26, 1785-87, |
|
|
5809-10). |
|
124-131,
133-136 |
Denied.
The Examiner's findings |
|
|
in I.D.
paras. 82-88 |
|
|
are
complete and accurately |
|
|
reflect
the record. |
|
|
Complainants'
requested |
|
|
findings
reflect primarily |
|
|
the
testimony of Mr. |
|
|
Anderson
given on direct ex- |
|
|
amination
and do not take |
|
|
into
account the matters |
|
|
elicited
on cross-examination. |
|
|
Although
it is appar- |
|
|
ent that
Mr. Anderson had |
|
|
no motive
to misrepre- |
|
|
sent, his
testimony clearly |
|
|
shows his
"recollection |
|
|
to be
dim." |
|
132 |
Denied.
See paragraphs 57-60 |
|
|
of our
Decision. |
|
137 |
Denied.
The Examiner found |
|
|
that Mr.
See both cau- |
|
|
tioned
Mr. Anderson and |
|
|
discussed
the program |
|
|
with him
(I.D. para. 81) |
|
|
and that
finding is sup- |
|
|
ported by
the record. |
|
138 |
Denied.
The Examiner so |
|
|
found
(I.D. paras. 81, 84). |
|
139 |
Denied.
KRON Ex. No. 116 |
|
|
refers to
news stories |
|
|
(Tr.
3456), not documentaries. |
|
|
There is
no support |
|
|
in the
record for Complainants' |
|
|
assertion. |
|
140 |
Denied.
The statements made |
|
|
to the
Commission in |
|
|
the
letters cited were |
|
|
truthful.
The "interest" |
|
|
which
Chronicle had was |
|
|
limited
to the mailing |
|
|
of form
letters regarding |
|
|
CATV to a
large number |
|
|
of
California communities. |
|
|
These
letters were pri- |
|
|
marily
aimed at obtaining |
|
|
information
(Tr. 1726- |
|
|
27, 1730,
1732-33, 2903-04, 2906). |
|
141, 142 |
Denied.
The record indicates |
|
|
that Mr.
See did, in fact, |
|
|
attend
the June 27, 1966, |
|
|
meeting
but that he left |
|
|
after
receiving an award |
|
|
which was
the first item |
|
|
on the
agenda. He did not |
|
|
attend
any portion of |
|
|
the
meeting which considered |
|
|
the
proposed CATV |
|
|
ordinance
(Tr. 1800, 1839, |
|
|
3468,
3644-45). The purpose |
|
|
for the
attendance |
|
|
of the
attorneys at the |
|
|
1967
meetings was to ensure |
|
|
the
passage of good, |
|
|
non-punitive,
CATV legislation |
|
|
in
Vallejo (Tr. |
|
|
2887-88,
2928-29). The |
|
|
purpose
of the luncheon |
|
|
with Mr.
Spight was to |
|
|
discuss
the possibility of |
|
|
CATV
joint ventures, |
|
|
principally
in South San |
|
|
Francisco,
and although |
|
|
Vallejo
was discussed it |
|
|
was only
with reference to |
|
|
the
defeat of the CATV |
|
|
ordinance
the previous day |
|
|
(Tr.
1839-40, Comp. |
|
|
Ex. No.
59). The possibility |
|
|
of a
joint venture in |
|
|
Vallejo
did not arise until |
|
|
1967 (Tr.
1412). Mr. |
|
|
Ficklin's
letter is completely |
|
|
true and
honest |
|
143 |
Denied.
The "interest" |
|
|
Chronicle
had in Vallejo |
|
|
CATV at
the time of the |
|
|
community
luncheon was |
|
|
only a
general one, as evidenced |
|
|
by the
fact that |
|
|
only form
letters were sent. |
|
|
These
letters were pri- |
|
|
marily
aimed at obtaining |
|
|
information
(Tr. 1395- |
|
|
96,
1413-14, 2903-06). |
|
|
Complainants
have taken the |
|
|
quoted
from Mr. Ficklin's |
|
|
letter
out of context (see |
|
|
Tr.
1413). |
|
144 |
Denied.
Mr. See's representation |
|
|
to the
Commission |
|
|
was
true. The record |
|
|
indicates
that in April, 1966, |
|
|
Mr.
Hammett verbally |
|
|
reported
his conclusion to |
|
|
Mr. See
that most of |
|
|
Vallejo
received tolerable |
|
|
signals
and was "well |
|
|
illuminated"
(Tr. 1835-36). |
|
|
Complainants'
exception |
|
|
refers to
Mr. Hammett's |
|
|
written
confirmation of |
|
|
this
earlier oral report. |
|
152 |
Denied.
The Examiner's |
|
|
finding
is supported by the |
|
|
weight of
the evidence. |
|
|
Both
Messrs. See and |
|
|
Anderson
testified that |
|
|
there was
only one meeting |
|
|
between
them. (Tr. 1799, |
|
|
2651).
Mr. Anderson's |
|
|
explanation
of his language |
|
|
in the
June, 1967, |
|
|
tape that
they told him |
|
|
"previous
to the time |
|
|
[he]...
went into production, |
|
|
why they
wanted |
|
|
the show
done" (Tr. 2717, |
|
|
emphasis
added) further |
|
|
supports
the Examiner's finding. |
|
155 |
Denied.
The Examiner |
|
|
found
that the San Carlos |
|
|
CATV
franchise was |
|
|
not
awarded to Chronicle |
|
|
(I.D.
para. 112). While |
|
|
Mr. See's
statement was |
|
|
inaccurate,
it cannot |
|
|
be said
that it constituted |
|
|
a
misrepresentation to |
|
|
the
Commission. The record |
|
|
discloses
that Chronicle's |
|
|
subsidiary
was not a |
|
|
serious
contender for the |
|
|
franchise,
since the City |
|
|
Council
had decided on |
|
|
an
underground system |
|
|
whereas
the Chronicle |
|
|
subsidiary
continued to pro- |
|
|
pose an
overhead system |
|
|
(Tr.
2897, 2927, 2932, |
|
|
3191-92,
3197, 3198, |
|
|
KRON Ex.
Nos. 97, 106). |
|
159 |
Denied.
The Examiner |
|
|
found
that Mr. Sutton was |
|
|
formerly
employed by |
|
|
Chronicle
(I.D. para. 110). |
|
|
The
remainder of the |
|
|
requested
finding is of no |
|
|
decisional
significance. |
|
|
In
addition, the requested |
|
|
finding
is not supported |
|
|
by a
citation to the record |
|
|
as
required by Section |
|
|
1.277(a)
of the Commis- |
|
|
sion's
Rules. |
|
162 |
Denied.
The Examiner |
|
|
found
that an "unusually |
|
|
large"
amount of film |
|
|
was shot
(I.D. para. 109) |
|
|
and the
exact footage |
|
|
is
without decisional sig- |
|
|
nificance.
Complainants' |
|
|
statement
that camera- |
|
|
men were
"given" a |
|
|
certain
amount of film to |
|
|
shoot is
inaccurate. B.B. |
|
|
Ex. No. 6
shows how much |
|
|
film was
actually shot, not |
|
|
that a
certain amount |
|
|
of film
was assigned. Similarly, |
|
|
Complainants'
com- |
|
|
ments
concerning Mr. |
|
|
Constant
are inaccurate. |
|
|
The
record indicates not |
|
|
that he
complained about |
|
|
the
amount of color film |
|
|
shot, but
that he merely |
|
|
wanted to
know why it |
|
|
was
shot. The record also |
|
|
shows
that he was satisfied |
|
|
with the
answers he |
|
|
received,
and that is why |
|
|
he did
not pursue the |
|
|
matter.
(Tr. 3111, 3424). |
|
165 |
Denied.
The Examiner has |
|
|
made
these findings (I.D. |
|
|
para.
109). The requested |
|
|
finding
relating to cov- |
|
|
erage of
the renewal hearing |
|
|
is
irrelevant. |
|
166 |
Denied.
The Examiner |
|
|
found
that it was "un- |
|
|
precedented"
for Mr. |
|
|
Kampmann
to act as a re- |
|
|
porter
(I.D. para. 106). |
|
|
Complainants
do not take |
|
|
into consideration
Mr. |
|
|
Kampmann's
testimony as |
|
|
to why he
acted in such |
|
|
capacity
(Tr. 3727-28). |
|
167 |
Denied.
The Examiner |
|
|
has made
most of these |
|
|
findings
(I.D. paras. |
|
|
106, 109)
and the others |
|
|
requested
would merely |
|
|
be
cumulative. Concern- |
|
|
ing
overtime pay, Mr. |
|
|
Kampmann
testified that |
|
|
at the
time of the 1968 |
|
|
Ball
there was a news- |
|
|
paper
strike which had |
|
|
caused
KRON-TV to ex- |
|
|
pand its
news programs |
|
|
and all
of the news de- |
|
|
partment
staff was placed |
|
|
on
overtime (Tr. 3727). |
|
169 |
Denied.
The Examiner |
|
|
found
that the decision to |
|
|
expand
the show to thirty |
|
|
minutes
was made by |
|
|
Messrs.
Kampmann, |
|
|
Behrendt,
and Noble (I.D. |
|
|
para.
109). Although |
|
|
Mr. See
testified that this |
|
|
was his
idea, other |
|
|
testimony
establishes that he |
|
|
was
mistaken in his |
|
|
recollection,
and that he did |
|
|
not
suggest a thirty minute |
|
|
program
(Tr. 3069, |
|
|
3357,
3358, 3729). |
|
171-173 |
Denied.
The record reflects |
|
|
that the
Chicken's Ball |
|
|
was
placed on "Community |
|
|
Circle"
because "Bay |
|
|
Region
Report", where |
|
|
it had
been placed in pre- |
|
|
vious
years, was no longer |
|
|
being
broadcast and |
|
|
"Community
Circle" was |
|
|
a color
program (Tr. |
|
|
1487-88,
3725). |
|
174 |
Denied.
The record indicates |
|
|
that no
other television |
|
|
stations
were contacted |
|
|
regarding
coverage of the |
|
|
Ball (Tr.
3142-43). In |
|
|
addition,
Complainants' |
|
|
exception
is not supported |
|
|
by a
citation to the |
|
|
record as
required by Section |
|
|
1.277(a)
of the Com- |
|
|
mission's
Rules. |
|
177 |
Denied.
Mr. See testified |
|
|
that he
had not made an |
|
|
investigation
into this |
|
|
area
prior to appearing as a |
|
|
witness
and that that |
|
|
was the
reason he didn't |
|
|
know of
any similar programming |
|
|
(Tr.
1491). |
|
178 |
Denied.
The Examiner |
|
|
has made
the findings re- |
|
|
quested
in the first two |
|
|
sentences
and the last |
|
|
clause of
the third sentence |
|
|
(I.D.
paras. 99, 105). |
|
|
Mr. Kelly
testified as |
|
|
to why he
chose Mr. See |
|
|
as a
judge (Tr. 3158, |
|
|
3178-79).
Complainants' |
|
|
requested
finding that |
|
|
Mr. See
had never seen a |
|
|
Chicken's
Ball is contrary |
|
|
to the
record (Tr. 3158, |
|
|
lines
10-12). |
|
180 |
Denied.
Complainants' |
|
|
requested
findings are of no |
|
|
decisional
significance. |
|
183 |
Denied.
The first sentence |
|
|
of
Complainants' proposed |
|
|
finding
is of no decisional |
|
|
significance.
Mr. See's |
|
|
testimony
about public |
|
|
relations
efforts related to |
|
|
the
promotion of KRON-TV's |
|
|
Chicken's
Ball cov- |
|
|
erage,
not the CATV franchise |
|
|
(Tr.
1495). |
|
185, 187 |
Denied.
The letter to Mr. |
|
|
Francesconi
is without |
|
|
decisional
significance. |
|
|
The last
sentence of Ex- |
|
|
ception
No. 185 is contrary |
|
|
to the
evidence, and is |
|
|
not
supported by |
|
|
Complainants'
citation to the |
|
|
record
(see Tr. 3152). |
|
186, 190 |
Denied.
Mr. Kelly's remarks |
|
|
to the
City Council |
|
|
were in
response to the |
|
|
two
preceding presenta- |
|
|
tions,
were not pre-planned, |
|
|
and were
not made to |
|
|
obtain a
competitive advantage |
|
|
(Tr.
3162, 3173- |
|
|
74).
Concerning the |
|
|
meeting
in the restaurant, |
|
|
the
Examiner so found |
|
|
(T.D.
para. 101). In addi- |
|
|
tion,
Exception No. 190 |
|
|
is not
supported by a |
|
|
citation
to record as |
|
|
required
by Section 1.277(a) |
|
|
of the
Commission's Rules. |
|
191, 197,
200-202 |
Denied.
Complainants' requested |
|
|
findings
are un- |
|
|
supported
conclusions, are |
|
|
argumentative,
are not |
|
|
supported
by a preponderance of the evidence, and |
|
|
do not
contain citations to the record as required |
|
|
by
Section 1.277(a) of the Commission's Rules. |
|
193, 195
(1st sent.) |
Denied.
The testimony indicates |
|
|
that the
body of |
|
|
Mr.
Kelly's letter was a part of Chronicle's CATV |
|
|
public
relations effort in San Carols and that the |
|
|
postscript
was not a part of that effort (Tr. 2930, |
|
|
3175). |
|
196 |
Denied.
The requested finding is of no decisional |
|
|
significance.
(See also our |
|
ruling on
Complainants' |
|
|
|
Exception
Nos. 186 and 190). |
|
199 |
Denied.
The record indicates that the promotional |
|
|
efforts
were "as usual" for KRON-TV (Tr. |
|
|
1495-98).
The last sentence of this exception is |
|
|
not
supported by Complainants' citation to the |
|
|
record. |
|
|
204, 366
(8th sent.) |
|
Denied.
The Examiner's findings |
|
|
|
are
supported by the |
|
|
weight of
the evidence. Mr. Kampmann testified |
|
|
that the
statements he made were made "in com- |
|
|
miseration"
with operational personnel in order "to |
|
|
hold the
news department together" (Tr. 3701-02, |
|
|
3784,
3833-34). In addition, Complainants' excep- |
|
|
tions are
not supported by citations to the record |
|
|
as
required by Section 1.277(a) of the Commis- |
|
|
sions'
Rules. |
|
205 |
Denied.
Mr. See testified that the letter to the Com- |
|
|
mission
was based upon the best information available |
|
|
at the
time (Tr. 1452), and Complainants cite |
|
|
no
evidence to the contrary. Complainants' claims |
|
|
for its
cross-examination of Mr. See are exagger- |
|
|
ated.
B.B. Ex No. 5, which furnished the basis |
|
|
for such
cross-examination, was produced by |
|
|
KRON
pursuant to the Examiner's Memorandum |
|
|
Opinion
and Order, FCC 69M-1238, released Sep- |
|
|
tember
30, 1969. The last sentence of Complainants' |
|
|
exception
is contrary to the record (KRON Ex. |
|
|
Nos. 68,
116, p. 179, Tr. 1865-66, 1942-43). In addi- |
|
|
tion,
portions of Complainants' exception are ar- |
|
|
gumentative
in violation of Section 1.277(a) of the |
|
|
Commission's
Rules. |
|
208 |
Denied.
Mr. Constant testified that when he found |
|
|
Dr.
Alvarez's letter in the files he stopped looking |
|
|
(Tr.
2419-20). His decision to discuss the events |
|
|
with Mr.
Kampmann, who was the news director |
|
|
at the
time of the library dedication, was not un- |
|
|
reasonable.
In addtion, Complainants' exception |
|
|
contains
argumentative matter in violation of Sec- |
|
|
tion
1.277(a) of the Commission's Rules. |
|
211 |
Denied.
Messrs. Thieriot and See did not testify that |
|
|
they
would not rely on the reputation and experi- |
|
|
ence of
KRON-TV in applying for CATV fran- |
|
|
chises,
but that they would not permit their CATV |
|
|
interests
to affect the operation and programming |
|
|
of
KRON-TV (Tr. 1681, 3542-43). |
|
213 |
Denied.
The Examiner made the findings requested |
|
|
in the
first two sentences of Complainants' excep- |
|
|
tion
(I.D. paras. 76-77). The findings requested in |
|
|
the third
sentence of Complainants' exception is |
|
|
implicit
in the Examiner's findings in I.D. paras. |
|
|
76-77.
The remainder of Complainants' exception |
|
|
is
without decisional signficance. |
|
214 |
Denied.
As the individual responsible for Chroni- |
|
|
cle's
CATV activities, it was only natural for Mr. |
|
|
See to
have undertaken the activities outlined in |
|
|
Complainants'
requested finding and no adverse |
|
|
conclusions
can be drawn therefrom. |
|
215 |
Denied.
The subsequent unavailability of pole line |
|
|
rights
was irrelevant to the merits of the prior |
|
|
award of
the San Francisco CATV franchise to |
|
|
Western
TV Cable Co. |
|
216 |
Denied.
The record indicates that Mr. See had no |
|
|
knowledge
of actions taken at Chronicle's Board |
|
|
of
Directors meetings (Tr.1457-58, 1612-13, 3570). |
|
217, 218 |
Denied.
The Examiner has made these findings (I.D. |
|
|
para.
117). The record indicates that Mr. See often |
|
|
requested
coverage of events in suburban com- |
|
|
munities
(KRON Ex. Nos. 161, 162). |
|
219 |
Denied.
Complaints' contention is without merit. |
|
|
The fact
that 4 minutes and 20 seconds of news |
|
|
time was
devoted to South San Francisco during |
|
|
November,
1966, does not preclude the possibility |
|
|
of
residents of that city suggesting more coverage. |
|
|
In
addtion, Complainants' exception is argumenta- |
|
|
tive in
violation of Section 1.277(a) of the Com- |
|
|
mission's
Rules. |
|
220 |
Denied.
KRON Ex. 116, pp. 173-1808 shows that |
|
|
in 1965
KRON-TV devoted 10 min. 20 sec. to news |
|
|
stories
devoted to South San Francisco; in 1966 it |
|
|
devoted
11 min. 55 sec. to such stories; |
|
|
in 1967
it de- |
|
|
voted 11
min. 46 sec. (this figure does not include |
|
|
3 min. 55
sec. which was devoted to a political de- |
|
|
bate
between congressional candidates); and in |
|
|
1968 it
devoted 8 min. to such stories. The variation |
|
|
between
these figures is of no decisional |
|
|
significance. |
|
222 |
Denied.
The requested finding presents an incom- |
|
|
plete
picture of the "must go" technique (see Tr. |
|
|
2495,
2499-2501, 2503-05, 2574, 3682-83, 3693-94, |
|
|
3768-69).
The memo quoted by the Examiner in |
|
|
I.D.
para. 121 indicates that coverage of the library |
|
|
dedication
was a "HPS-MG" -- "Harold P. See -- |
|
|
Must
Go." Further, the Examiner found that the |
|
|
coverage
was ordered by Mr. See and that it was |
|
|
questioned
by Mr. White (I.D. paras. 117, 118). |
|
225, 226 |
Denied.
Complainants' requested findings do not |
|
|
take into
consideration Mr. Kampmann's explana- |
|
|
tion for
his remarks (Tr. 3701-02, 3784, 3833-34). |
|
|
In
addition, Complainants' exceptions are not sup- |
|
|
ported by
citations to the record as required by |
|
|
Section
1.277(a) of the Commission's Rules. |
|
228 |
Denied.
The Examiner found that Mr. Picken cov- |
|
|
ered the
art show (I.D. para. 119); that he re- |
|
|
ceived a
copy of the memo of December 20, 1966 |
|
|
(I.D.
para. 117); and that the art show was cov- |
|
|
ered and
broadcast by KRON-TV (I.D. para. 119). |
|
|
That no
other radio or television stations covered |
|
|
the
library dedication is irrelevant, since the rec- |
|
|
ord
supports the Examiner's finding that coverage |
|
|
of such
events was not unusual at KRON (I.D. |
|
|
para
126). |
|
229 |
Denied.
The Examiner's finding that Mr. Picken |
|
|
indicated
that he would cover the dedication if |
|
|
he could
is supported by the record (Tr. 2953). |
|
|
Complainants'
requested finding concerning Mr. |
|
|
Picken's
characterization of the library dedication |
|
|
is
adequately reflected in the Examiner's finding |
|
|
that the
dedication was "hardly an event of grip- |
|
|
ping
interest throughout the bay area...." (I.D. |
|
|
para.
130). |
|
230 |
Denied.
Mr. Picken testified that he was not sure |
|
|
that Mr.
White told him of Chronicle's interest in |
|
|
CATV in
South San Francisco (Tr. 844-45, 865), |
|
|
and that
he did not learn of Chronicle's interest |
|
|
until
after the dedication was covered (Tr. 865). |
|
|
The
record indicates that the basis for Mr. Picken's |
|
|
state of
mind was "news room scuttlebutt" (Tr. |
|
|
844). |
|
231 |
Denied.
The requested finding is based on heresay. |
|
232 |
Denied.
The Examiner found that the memo was |
|
|
given to
Mr. Kihn by Mr. Blair (I.D. para. 121). |
|
|
The
remainder of Complainants' exception is of no |
|
|
probative
weight since Mr. Blair did not testify |
|
|
in this
proceeding. |
|
233 |
Denied.
The Examiner found that KRON frequently |
|
|
mentioned
political figures in covering events in |
|
|
which
they participated (I.D. para. 126), and the |
|
|
filming
of the Mayor of South San Francisco was |
|
|
in line
with this policy. The remainder of Com- |
|
|
plainants'
requested finding is of no decisional |
|
|
significance. |
|
234 |
Denied.
The Examiner made the findings requested |
|
|
in the
first three sentences of Complainants' ex- |
|
|
ception
(I.D. paras. 121, 124-125). The last sen- |
|
|
tence of
Complainants' requested finding is not |
|
|
supported
by a citation to the record as required |
|
|
by
Section 1.277(a) of the Commission's Rules. |
|
235 |
Denied.
Mr. See testified that the changes requested |
|
|
were not
"extensive" and that all competitors for |
|
|
the CATV
franchise were invited to comment on the |
|
|
proposed
ordinance (Tr. 1529). In any event, the |
|
|
requested
finding is of no decisional significance. |
|
236 |
Denied.
Insofar as Complainants' requested finding is |
|
|
relevant,
the Examiner so found (I.D. para. 119). |
|
239 (1st
sent.) |
Denied.
While Complainants' statement is correct, the |
|
|
variation
between the figures is not decisionally |
|
|
significant. |
|
239 (2d
sent.) |
Denied.
There is no support in the record that the |
|
|
Mayor or
City Council appeared in the dedication |
|
|
story
broadcast by KRON-TV, and the Examiner |
|
|
found
that there was no reference to these persons |
|
|
therein
(I.D. fn. 51). |
|
241 |
Denied.
Mr. Allen testified that Western Communi- |
|
|
cations,
Inc. has never applied for a rate increase |
|
|
on any of
its systems (Tr. 2898-99). Messrs. See |
|
|
and Allen
testified that the former has neither seen |
|
|
nor
received a copy of the Kirkeeng memo (Tr. |
|
|
1527,
2899). |
|
251 |
Denied.
The Examiner's finding is correct and ade- |
|
|
quately
reflects the record (Tr. 1235, 1237, 1248-49, |
|
|
3072,
KRON Ex. No. 16). |
|
264, 265 |
Denied.
The record reveals that Mr. Kampmann often |
|
|
used the
"must go" designation on his own initia- |
|
|
tive (Tr.
3683, 3768, 3769). |
|
267 |
Denied.
The Examiner quoted the relevant portions |
|
|
of this
memo (I.D. para. 195). The long-standing |
|
|
policy
referred to in Complainants' requested find- |
|
|
ing was
that there be accuracy in any news story |
|
|
broadcast
about the Chronicle Publishing Co. (Tr. |
|
|
1959).
The record indicates that the procedures |
|
|
outlined
in Mr. See's memo were not generally fol- |
|
|
lowed
(Tr. 2465, 3705, 3707, 3713). |
|
273 |
Denied.
Mr. Kampmann testified that he rescinded the |
|
|
memo
"after about two or three days" (Tr. 3710; |
|
|
see also
Tr. 3270-72, 3299-3300). |
|
275 |
Denied.
The Examiner found that Mr. Kampmann |
|
|
issued
the memo the preserve newsroom objectivity |
|
|
in
reporting labor strife in broadcasting (I.D. |
|
|
para.
197). This is in accord with Mr. See's state- |
|
|
ment of
policy as reflected in his testimony. |
|
276 |
Denied.
Mr. Constant's testimony referred to the last |
|
|
sentence
of Mr. Kampmann's memo and there is no |
|
|
evidence
it represented KRON policy. Mr. Kamp- |
|
|
mann
testified that he rescinded the memo "after |
|
|
about two
or three days" (Tr. 3710; see also Tr. |
|
|
3270-72,
3299-3300). Mr. See testified that he didn't |
|
|
repeal or
revoke the memo because he "didn't pay |
|
|
much
attention to it." (Tr. 1599). |
|
277 |
Denied.
Complainants' requested finding is of no de- |
|
|
cisional
significance. Further there is no evidence |
|
|
that Mr.
Kampmann's superiors were familiar with |
|
|
the
entire contents of the book, and the Examiner |
|
|
found,
specifically, that neither Mr. See nor Mr. |
|
|
Constant
was aware of the issuance of Mr. Kamp- |
|
|
mann's
memo. |
|
279 |
Denied.
The requested finding is contrary to the |
|
|
weight of
the evidence (Tr. 2465, 3259, 3261-62, |
|
|
3705-07)
and is based upon hearsay (Tr. 2103). |
|
282 |
Denied.
The requested finding is contrary to the evi- |
|
|
dence
(Tr. 1374, 1376, 3546-47, 3565) and is argu- |
|
|
mentative
in violation of Section 1.277(a) of the |
|
|
Commission's
Rules. |
|
|
283 |
|
Denied.
The Examiner's findings that Mr. See's |
|
|
|
motive
was not to suppress news (I.D. para. 141) |
|
|
and that
Mr. See acted in a reasonable manner |
|
|
(I.D.
para. 140) are correct and are supported by |
|
|
the
weight of the evidence (Tr. 1372, 1514, 1517- |
|
|
18). |
|
284 |
Denied.
The requested finding is not supported by |
|
|
the
evidence and is a presumption not based on |
|
|
knowledge. |
|
285 |
Denied.
The Examiner found that news of the agree- |
|
|
ment
leaked out (I.D. para. 135). |
|
286 |
Denied.
The requested finding is contrary to the |
|
|
record
and is argumentative in violation of Section |
|
|
1.277(a)
of the Commission's Rules. |
|
287 |
Denied.
The Examiner found that all of KRON's |
|
|
newsmen
were familiar with the story and that |
|
|
many of
them importuned their superiors for per- |
|
|
mission
to cover it (I.D. para. 136). The additional |
|
|
details
outlined in Complainants' exception are |
|
|
without
decisional significance. The Examiner also |
|
|
made the
finding requested in the the last sentence |
|
|
of
Complainants' exception (I.D. para. 138). |
|
288 |
Denied.
The Examiner made reference to the New |
|
|
York
Times story (I.D. para. 135). The remainder |
|
|
of the
requested finding is without decisional |
|
|
significance. |
|
291 |
Denied.
Complainants' requested finding is based on |
|
|
hearsay,
is of no decisional significance and is |
|
|
argumentative
in violation of Section 1.277(a) of |
|
|
the
Commission's Rules. |
|
292 |
Denied.
The requested finding is based on hearsay. |
|
296 |
Denied.
The requested finding is not supported by |
|
|
the
record. Mr. See testified that he had not viewed |
|
|
the news
broadcasts (Tr. 1378-79) and Mr. Sacks' |
|
|
testimony
does not show otherwise. |
|
304 |
Denied.
It is implicit in the Examiner's findings in |
|
|
I.D.
paras. 138 and 140 that Mr. See did not con- |
|
|
tact any
representatives of the Hearst Corpora- |
|
|
tion.
The remainder of this requested finding is |
|
|
speculative
and argumentative in violation of Sec- |
|
|
tion
1.277(a) of the Commission's Rules. |
|
305, 306 |
Denied.
The Examiner found that KRON covered |
|
|
the story
and that only the first part of the story |
|
|
was
prepared by Messrs. Constant and Cothran |
|
|
(I.D.
para. 139). The record further indicates that |
|
|
a
newswriter wrote the remainder of the story |
|
|
from the
Chronicle's "dupe" (Tr. 2470-71, 2546). |
|
|
Since the
publisher's statement was the only source |
|
|
of the
story available (Tr. 2471, 2546), and |
|
|
since the
"dupe" was charged, KRON's policy |
|
|
against
verbatim use of Chronicle "dupes" was |
|
|
not
violated (Tr. 2547-48). In addition, Com- |
|
|
plainants'
Exception No. 306 is argumentative in |
|
|
violation
of Section 1.277(a) of the Commission's |
|
|
Rules. |
|
|
307 |
|
Denied.
The Examiner found that the story could not |
|
|
|
be
covered until an official announcement was |
|
|
made
(I.D. para. 138). The publisher's statement |
|
|
was the
only source of the story available (Tr. |
|
|
2471,
2546). The remainder of Complainants' ex- |
|
|
ception
is without decisional significance. |
|
308 |
Denied.
The substance of the testimony cited is to |
|
|
the
effect that there was a limit on the type of |
|
|
reporting
which could be done prior to an official |
|
|
announcement
by the newspapers, and the Ex- |
|
|
aminer so
found (I.D. para. 136). After the story |
|
|
broke
there was no such limit (Tr. 953-56). |
|
309 |
Denied.
The requested findings are based on hearsay. |
|
|
Mr. Kihn
also testified that he knew of no other |
|
|
station
having done a documentary on the merger |
|
|
(Tr.
526). |
|
315 |
Denied.
The requested finding is argumentative in |
|
|
violation
of Section 1.277(a) of the Commission's |
|
|
Rules and
is composed of subjective judgments of |
|
|
the type
of questions asked and the type of report |
|
|
broadcast.
Further, there were no Justice Depart- |
|
|
ment,
advertiser, or union representatives at the |
|
|
luncheon
(KRON Ex. No. 75). |
|
317, 318 |
Denied.
The requested finding is contrary to the |
|
|
weight of
the evidence, and Mr. White has ad- |
|
|
mitted to
lapses of memory (Tr. 2098-2100). |
|
321 |
Denied.
The Examiner's findings at I.D. para. 145 |
|
|
are
supported by the record (Tr. 413, 415, 420, |
|
|
436,
1144, 1149-51). |
|
322 |
Denied.
The Examiner's findings at I.D. para. 146 |
|
|
are
supported by the record (Tr. 2483-84). With |
|
|
respect
to the relationship between Mr. Cothran |
|
|
and his
superiors, the testimony of Messrs. Kihn |
|
|
and White
is hearsay. Further Comp. Ex. No. 4 was |
|
|
issued
after Mr. Cothran left KRON-TV, and the |
|
|
record
reflects that the procedures outlined in |
|
|
Comp. Ex.
No. 3 were not generally followed (Tr. |
|
|
2465,
3705, 3707, 3713). |
|
324 (1st
sent.) |
Denied.
The Examiner's finding in I.D. para. 144 is |
|
|
supported
by the evidence (Tr. 2480-81, 3604, 3715, |
|
|
KRON Ex.
No. 12). |
|
324 (2d
sent, et seq.) |
Denied.
Mr. Constant did |
|
|
not
testify that there was a |
|
|
threatened
I.B.E.W. strike, however negotiations |
|
|
were
going on (Tr. 3334-35, 3603-04). To the ex- |
|
|
tent that
Complainants' requested findings go into |
|
|
greater
detail than the Examiner's findings at I.D. |
|
|
paras.
142-144, they are cumulative and are not |
|
|
decisionally
significant. |
|
325 |
Denied.
The Examiner's findings in I.D. para. 144 |
|
|
adequately
cover the findings requested in the first |
|
|
two
sentences of Complainants' exception. The fact |
|
|
that KRON
did not cover the first day of the strike |
|
|
is not
decisionally significant, since the record re- |
|
|
veals
that the remainder of the strike was covered. |
|
|
The last
sentence of this exception is not supported |
|
|
by
Complainants' citations to the record. |
|
326 |
Denied.
The first sentence of Complainants' excep- |
|
|
tion is
not supported by the weight of the evidence |
|
|
(Tr.
2480-81, 3715). Mr. Fleming's complaint about |
|
|
the news
story stemmed not from KRON but from |
|
|
his own
interviews of union members (Tr. 971-72). |
|
|
The last
sentence of Complainants' exception is not |
|
|
supported
by a citation to the record as required |
|
|
by
Section 1.277(a) of the Commission's Rules. |
|
328 |
Complainants
have filed no exception so numbered. |
|
329 |
Denied.
The Examiner's findings at I.D. para. 148 are |
|
|
correct
and are supported by the record (Tr. 1601, |
|
|
1852-53,
2410, 3331, 3551, 3846-47). Comp. Ex. No. |
|
|
4 was
issued on April 6, 1967, whereas the threat- |
|
|
ened
strike was on March 15-17, 1967. The reasons |
|
|
for
issuing the Kampmann memo had nothing to |
|
|
do with
the 1967 threatened Teamster's strike (see |
|
|
I.D.
paras. 195-196). The last sentence of Com- |
|
|
plainants'
exception is contrary to the weight of |
|
|
the
evidence (Tr. 2465, 3259, 3261-62, 3705-07) and |
|
|
is based
on hearsay (Tr. 2103). In addition, Com- |
|
|
plainants'
exception contains argumentative matter |
|
|
in
violation of Section 1.277(a) of the Commis- |
|
|
sion's
Rules. |
|
330 |
Denied.
The Examiner's findings at I.D. para. 147 |
|
|
and fn.
56 adequately cover this matter. Complain- |
|
|
ants'
requested finding is contrary to the record, is |
|
|
argumentative,
and the last paragraph is not sup- |
|
|
ported by
a citation to the record as required by |
|
|
Section
1.277(a) of the Commission's Rules. |
|
331 |
Denied.
The threatened Guild strike occurred during |
|
|
February,
1966 (see I.D. para. 142). The reference |
|
|
at Tr.
2974 to February, 1967, is a reporter's error. |
|
|
The
settlement of the threatened February, 1966, |
|
|
strike
resulted in a three-year contract (KRON |
|
|
Ex. No.
12, pp. 11-12). The Examiner found that |
|
|
the
strike threat was covered by KRON-TV. |
|
333 |
Denied.
There is no evidence that the filming of the |
|
|
pickets
was in any way unusual. |
|
334 |
Denied.
The requested finding is not supported by the |
|
|
evidence
of record. In addition, it is argumentative |
|
|
and does
not contain a citation to the record as |
|
|
required
by Section 1.277(a) of the Commission's |
|
|
Rules. |
|
335 |
Denied.
The Examiner's finding at I.D. para. 153 is |
|
|
correct
and is supported by the record. The cited |
|
|
testimony
of Mr. Kihn (Tr. 425-26) is his own sub- |
|
|
jective
judgment of the coverage. The cited testi- |
|
|
mony of
Mr. White (Tr. 2107, 2112-13) is not sup- |
|
|
ported by
the weight of the evidence (Tr. 2996-97, |
|
|
3000,
3002-03; see also I.D. paras. 154-156). Mr. |
|
|
Raudebaugh
also testified that the coverage by |
|
|
KRON-TV
was "no better or no worse than any |
|
|
other
television station" (Tr. 2969; I.D. para. 164). |
|
338 |
Denied.
Complainants' exception is without support |
|
|
in the
record. In addition, it is argumentative in |
|
|
violation
of Section 1.277(a) of the Commission's |
|
|
Rules. |
|
339 |
Denied.
The Examiner's findings at I.D. para. 193 |
|
|
adequately
cover this matter. Mr. Constant's ex- |
|
|
planation
is reasonable and is uncontradicted (Tr. |
|
|
3606).
The last sentence is argumentative and is |
|
|
not
supported by a citation to the record as re- |
|
|
quired by
Section 1.277(a) of the Commission's |
|
|
Rules. |
|
340, 341 |
Denied.
The Examiner's findings at I.D. para. 193 |
|
|
adequately
cover this matter. The additional de- |
|
|
tails
provided in Complainants' exception are |
|
|
without
decisional significance. The record indi- |
|
|
cates
that the story was run (Tr. 3288-89). |
|
342 |
Denied.
The first sentence of Complainants' excep- |
|
|
tion
distorts the record. Mr. Constant testified that |
|
|
the
statement of management in the first story was |
|
|
meaningless
(Tr. 3345). No changes in Mr. Bur- |
|
|
ton's
story were made by Mr. See (Tr. 3346). The |
|
|
last
sentence of this requested finding is of no |
|
|
decisional
significance. |
|
343 |
Denied.
Mr. Burton testified that the story was |
|
|
covered
and written prior to his meeting with |
|
|
Mr. See
and that he met with Messrs. See and |
|
|
Constant
in order to get a statement of manage- |
|
|
ment's
side of the story (Tr. 3287-89, 3304-05). |
|
347 |
Denied.
The Examiner's finding at I.D. para. 155 and |
|
|
fn. 57
correctly and adequately reflects the record |
|
|
(Tr.
2057-58, 3718). Mr. See's representation to the |
|
|
Commission
was truthful and Complainants have |
|
|
not shown
otherwise. |
|
348 |
Denied.
Complainants' requested finding is not sup- |
|
|
ported by
the record (KRON Ex. Nos. 76, 77, 101, |
|
|
102). |
|
354 (2nd
para.) |
Denied.
There is no evidence of record supporting |
|
|
Complainants'
requested finding that Canadian |
|
|
Pacific
Airlines was a substantial advertiser in |
|
|
the
Chronicle newspaper and over KRON-TV. The |
|
|
evidence
is to the contrary(B.B. Ex. No. 4, Att. |
|
|
II-1,
II-2). The mentions of Canadian Pacific |
|
|
Airlines
were due to the fact that it donated the |
|
|
first
prizes for the tournament (Tr. 3385, KRON |
|
|
Ex. No.
95, p. 5, KRON Ex. No. 120). |
|
355 |
Denied.
Complainants' requested finding is contrary |
|
|
to the
evidence, is argumentative, and is not sup- |
|
|
ported by
a citation to the record as required by |
|
|
Section
1.277(a) of the Commission's Rules. |
|
357 |
Denied.
The requested finding is of no decisional |
|
|
significance.
The record indicates that KRON-TV |
|
|
has
covered this event from 1961 through 1969 with |
|
|
the
exception of 1966 (KRON Ex. No. 78). The |
|
|
last
sentence of Complainants' exception is argu- |
|
|
mentative
in violation of Section 1.277(a) of the |
|
|
Commission's
Rules. |
|
358 |
Denied.
The Examiner's finding at I.D. para. 199 is |
|
|
supported
by the record. With respect to Canadian |
|
|
Pacific
Airlines see our ruling on Complainants' |
|
|
Exception
No. 354 (2d para.), supra. |
|
359 |
Denied.
The script as broadcast contains references |
|
|
to all of
the subjects mentioned in Complainants' |
|
|
requested
findings (KRON Ex. No. 18, pp. 1-2, 5-6; |
|
|
Tr.
1318-20). The portion deleted dealt with spe- |
|
|
cific
magazines and was deleted on the advice of |
|
|
counsel
(KRON Ex. No. 19; Tr. 1313-14). |
|
360, 361 |
Denied.
Complainants' requested findings have no |
|
|
support
in the record. In addition, they are argu- |
|
|
mentative
and contain no citations to the record |
|
|
as
required by Section 1.277(a) of the Commis- |
|
|
sion
Rules. |
|
363 (2d
sent., et seq.) |
Denied.
See paragraphs |
|
|
41-48 of
our Decision. In |
|
|
addition,
Complainants' exception contains a dis- |
|
|
cussion
of law in violation of Section 1.277(a) of |
|
|
the
Commission's Rules. |
|
366 (1st
sent.) |
Denied.
The Examiner's findings in I.D. para. 107 |
|
|
and 108
are correct and are supported by the |
|
|
weight of
the evidence. See also paragraphs 56-60 |
|
|
of our
Decision and our ruling on Complainants' |
|
|
Exception
No. 204, supra. |
|
366
(9th-12th sents.) |
Denied.
See paragraphs 56-60 of our |
|
|
decision.
In |
|
|
addition,
Complainants' exceptions are argumenta- |
|
|
tive,
contain discussions of law and are not sup- |
|
|
ported by
citations to the record as required by |
|
|
Section
1.277(a) of the Commission's Rules. |
|
366 (13th
sent.) |
Denied.
The portion of I.D. para. 128 to which |
|
|
Complainants
take exception is correct and is sup- |
|
|
ported by
the weight of the evidence. |
|
|
367 |
|
Denied.
The decision was made after consultation |
|
|
|
with, and
upon the advice of counsel and was not |
|
|
an
immediate reaction (I.D. paras. 215-216). |
|
368-374,
377-379, 382, 385- |
Denied.
The Examiner's |
|
|
findings
and conclusions at |
|
387,
389-412, 416-436, |
I.D.
paras. 214-235 and |
|
|
267 are
correct and ade- |
|
438-451,
454, 456-460, |
Quately
reflect the relevant |
|
|
portions
of the record. |
|
463-473,
485-488, 490, |
The
additional details |
|
|
provided
in Complainants' |
|
492, 493,
496-500, 502, |
requested
findings are of |
|
|
no
decisional significance. |
|
505,
507-513, 516-521, |
See,
however paragraphs |
|
|
62-66 of
our Decision. |
|
535-542,
544-556, 558, |
In
addition, the following |
|
|
exceptions
are argu- |
|
560-565,
567, 568 (1st |
mentative
and/or contain |
|
|
no
citations to the rec- |
|
sent.),
569, 571-574, |
ord in
violation of Section |
|
|
1.277(a)
of the Com- |
|
592. |
mission's
Rules: Nos. 391, |
|
|
393, 396,
416, 4178 419, |
|
|
420, 424,
426, 432, 439-441, 446, 450, 467, 468, |
|
|
487, 505,
510, 519, 520, 535, 536, 547, 550, 556, |
|
|
563,
571-573, and 592. |
|
375 |
Denied.
The record reveals that the investigators |
|
|
were also
instructed not to the alert Mr. Kihn under |
|
|
any
circumstances, and the Examiner so found |
|
|
(I.D.
paras. 218, 267; Tr. 7278-79, KRON Ex. Nos. |
|
|
201-203). |
|
376 |
Denied.
The motives of an individual may affect the |
|
|
question
of credibility (Tr. 7153, 7162). The last |
|
|
sentence
of I.D. para. 215 adequately covers the |
|
|
last
sentence of Complainants' requested finding. |
|
380 |
Denied.
The testimony reveals that the specific em- |
|
|
phasis
contained in the oral and written instruc- |
|
|
tions to
the investigators was not a normal pro- |
|
|
cedure
(Tr. 7323-24, 7346-47). |
|
381 |
Denied.
Complainants' requested finding is an unsup- |
|
|
ported
conclusion. In any event, the Examiner's |
|
|
finding
at I.D. para. 220 adequately and correctly |
|
|
reflects
the record. |
|
384 |
Denied.
Concerning subparagraph (A), the state- |
|
|
ments
allegedly edited out of the investigators' |
|
|
reports
appear in substance in the final reports of |
|
|
the
investigating firm (compare, e.g., Tr. 7214-17, |
|
|
with KRON
Ex. No. 209, pp. 65-67, 84). Subpara- |
|
|
graphs
(B) and (C) do not support Complainants' |
|
|
contention.
In addition, Complainants' requested |
|
|
finding
is argumentative in violation of Section |
|
|
1.277(a)
of the Commission's Rules. |
|
388, 413 |
Denied.
Mr. Wichelmann's testimony was clarified |
|
|
on
cross-examination (Tr. 6746, 6741). |
|
414, 415 |
Denied.
Mr. Raymer testified that since he knew that |
|
|
Mr.
Kihn's charges were false, the initial investiga- |
|
|
tion did
not have as its primary purpose the in- |
|
|
vestigation
of those charges but rather the motives |
|
|
and
associations of Mr. Kihn (Tr. 6858-61). In |
|
|
addition,
Complainants' exceptions are not sup- |
|
|
ported by
citations to the record as required by |
|
|
Section
1.277(a) of the Commission's Rules, and |
|
|
Exception
No. 415 is argumentative in violation |
|
|
of the
same rule. |
|
437 |
Denied.
The requested finding is contrary to the |
|
|
weight of
the evidence (Tr. 6677-78). |
|
452 |
Denied.
Complainants' have misinterpreted the cited |
|
|
testimony
(Tr. 7115-16). |
|
453 |
Denied.
The suggestion to move into Mr. Kihn's |
|
|
apartment
came from Miss Hausmann and not |
|
|
Mr.
Orwitz (Tr. 6969, 7192), and Mr. Green specific- |
|
|
cally
rejected this idea (Tr. 7195-96). |
|
455 |
Denied.
Mr. Wichelmann testified that he did not |
|
|
start
dating the former baby sitter until March or |
|
|
April,
1970 (the investigation was discontinued in |
|
|
June,
1969), that she knew of his prior participa- |
|
|
tion in
the case, and that they did not discuss the |
|
|
case (Tr.
6745-46). In addition, Complainants' |
|
|
requested
finding is not supported by a citation to |
|
|
the
record as required by Section 1.277(a) of the |
|
|
Commission's
Rules. |
|
461 |
Denied.
The requested finding does not take into |
|
|
consideration
Dianne Kihn's testimony on cross- |
|
|
examination
that Mr. Spillane had visited her as |
|
|
a result
of a letter she had written to KRON-TV in |
|
|
which she
indicated she had information "regard- |
|
|
ing the
ruthlessness of Mr. Al Kihn's character" |
|
|
(Tr.
6949-50). |
|
474 |
Denied.
Complainants' requested finding ignores Mr. |
|
|
Green's
testimony that each investigator would |
|
|
Generally
choose his own particular subterfuge |
|
|
(Tr.
6525-26, 6555). In addition, Complainants' |
|
|
exception
is speculative and argumentative, in |
|
|
violation
of Section 1.277(a) of the Commission's |
|
|
Rules. |
|
475, 476 |
Denied.
The record reveals that Mr. Green chose the |
|
|
potential
interviewees from persons he felt would |
|
|
be the
least likely to inform the Complainants and |
|
|
who had
some differences of opinion with them |
|
|
(Tr.
6523-24, 6551-52). |
|
477-479 |
Denied.
The Examiner found that a background in- |
|
|
vestigation
was recommended and completed and |
|
|
that such
an investigation involved checking all |
|
|
available
public records (I.D. paras. 217, 219). |
|
|
The additional
details outlined in Complainants' |
|
|
exceptions
are of no decisional significance. In |
|
|
addition.
Exception No. 478 does not contain a |
|
|
citation
to the record as required by Section 1.277 |
|
|
(a) of
the Commission's Rules. |
|
480-484 |
Denied.
The record reflects that no instructions were |
|
|
given to
inquire about the private sex lives of |
|
|
Complainants.
The information received by the |
|
|
investigators
on this subject was volunteered by |
|
|
certain
interviewees (Tr. 6520-21, 6541-42, 6751- |
|
|
53, 6762,
6764, 6900-A). See, however, paragraphs |
|
|
62-66 of
our Decision. |
|
489 |
Denied.
Prior to the interview with Mr. Winkelmann |
|
|
it was
not known where Mr. Kihn resided between |
|
|
December,
1963, and April 1964 (KRON Ex. No. |
|
|
207, p.
17, note). |
|
491, 570 |
Denied.
The requested findings are speculative, argu- |
|
|
mentative
and are not supported by Complainants' |
|
|
citations
to the record. |
|
494 |
Denied.
The first sentence of the requested finding |
|
|
is
contrary to the record (Tr. 6662-63). The re- |
|
|
mainder
of the requested finding is not supported |
|
|
by
Complainants' citation to the record. |
|
495 |
Denied.
There is no evidence that Mr. Wichelmann |
|
|
asked Mr.
Kurtz any questions about the private |
|
|
sex life
of Mr. Kihn, and Complainants' cita- |
|
|
tions to
the record do not show otherwise. The |
|
|
evidence
is to the contrary (see our ruling on Com- |
|
|
plainants'
Exception Nos. 480-484). The last sen- |
|
|
tence of
this exception is speculative, argumenta- |
|
|
tive and
is not supported by a citation to the record |
|
|
as
required by Section 1.277(a) of the Commis- |
|
|
sion's
Rules. |
|
501 |
Denied.
Mr. See placed the emphasis on not alerting |
|
|
either
Complainant that they were being investi- |
|
|
gated
(Tr. 6516, 6578-79, 7259), and it cannot be |
|
|
said that
the interviews under subterfuge violated |
|
|
this
instruction. |
|
506 |
Denied.
This information was gathered and used for |
|
|
impeachment
purposes (Tr. 7053-58, 7081-82) and |
|
|
was
public information (Tr. 7081). |
|
514 |
Denied.
The requested finding distorts the record (Tr. |
|
|
6853,
7294-95). In any event it is of no decisional |
|
|
significance. |
|
523-532 |
Complainants
have filed no exceptions so numbered. |
|
543 |
Denied.
Complainants' requested finding is contrary |
|
|
to the
record (KRON Ex. No. 206, p. 23). |
|
557, 594 |
Denied.
The Examiner's finding at I.D. para, 133 is |
|
|
correct
and is supported by the evidence of record |
|
|
(see Tr.
6830-31). In addition, Exception No. 557 |
|
|
is not
supported by Complainants' citation to the |
|
|
record
and Exception No. 594 contains no such |
|
|
citation,
as required by Section 1.277(a) of the |
|
|
Commission's
Rules. |
|
559 |
Denied.
Complainants' requested finding is not sup- |
|
|
ported by
the record. In addition, it is argumenta- |
|
|
tive and
does not contain a citation to the record, |
|
|
as required
by Section 1.277(a) of the Commis- |
|
|
sion's
Rules. |
|
566 |
Complainants
have filed no exception so numbered. |
|
568 (2nd
sent.) |
Denied.
Mr. Lindberg was no longer employed by |
|
|
Neilson
and Green at the time he purchased the |
|
|
subscription
(Tr. 7296-97). |
|
575-579,
581, |
|
|
582, 590, |
Denied.
Complainants' requested findings are unsup- |
|
591. |
ported
conclusions. In addition, they are argu- |
|
|
mentative
and do not contain citations to the record |
|
|
as
required by Section 1.277(a) of the Commis- |
|
|
sion's
Rules. |
|
580, 583
(p. 138) |
|
|
586, 593, |
Granted
to the extent reflected in paragraphs 62-66 |
|
625,
628-634. |
of our
Decision and denied in all other respects. |
|
583 (p.
137) |
Denied.
This proposed finding is technically not an |
|
|
exception
but rather an explanation by Com- |
|
|
plainants'
counsel of his purpose for reciting |
|
|
certain
information contained in previous excep- |
|
|
tions. |
|
587-589 |
Denied.
The requested findings are of no decisional |
|
|
significance.
In addition, Complainants' Exception |
|
|
Nos. 588 and
589 do not contain citations to the |
|
|
record as
required by Section 1.277(a) of the |
|
|
Commission's
Rules. |
|
595 |
Denied.
There is no evidence that the Examiner per- |
|
|
mitted a
"generalized study of the programming" |
|
|
of
KRON. The Examiner's findings relate primarily |
|
|
to the
news, documentary, public service, agricul- |
|
|
tural,
and religious programming of the station |
|
|
(I.D.
paras. 200-213), and such an examination |
|
|
was
contemplated by the Review Board's decision |
|
|
adding
this issue (18 FCC 2d 120). Further, there |
|
|
is ample
precedent for considering such evidence |
|
|
in
mitigation of adverse findings under existing |
|
|
issues
(see, e.g., Westnghouse Broadcasting Co., |
|
|
Inc., 22
R.R. 1023 (1962); General Electric Co., |
|
|
2 R.R. 2d
1038 (1964); Wagoner Radio Co., 12 FCC |
|
|
2d 978
(1968); and Bluegrass Broadcasting Co., |
|
|
Inc., 14
FCC 2d 788 (1968)). Finally, Issue 4 was |
|
|
not
considered in association with the investigative |
|
|
issue as
Complainants have stated. |
|
596, 597,
644 |
Denied.
The Examiner did not consider the evidence |
|
|
adduced
under Issue 4 in reaching his ultimate |
|
|
decision
(I.D. para. 262). The Examiner's "com- |
|
|
ments"
at I.D. para. 263 are supported by the |
|
|
record,
and the Complainants presented little evi- |
|
|
dence to
rebut the program showing of KRON (I.D. |
|
|
para.
213). |
|
598, 639 |
Denied.
The Examner's conclusions at I.D. paras. |
|
|
236-241
are correct and are supported by the |
|
|
weight of
the evidence. Complainants' proposed |
|
|
conclusion
in Exception No. 598 assumes a five |
|
|
county
relevant market whereas the Examiner |
|
|
properly
chose the entire nine county Bay Area as |
|
|
the
relevant market. The Examiner's conclusion at |
|
|
I.D.
para. 241 correctly reflects Commission policy |
|
|
and
precedent. In any event, the Examiner's uliti- |
|
|
mate
conclusion on this issue was not based |
|
|
thereon.
(See also our rulings on Complainants' |
|
|
Exception
Nos. 1-5, 7, 8, 38, supra.) |
|
599, 640,
641 |
Denied.
The Examiner's conclusions at I.D. paras. |
|
|
242-251
are correct and are supported by the weight |
|
|
of the
evidence. Further, there is no basis in the |
|
|
record
for the conclusions requested by Complain- |
|
|
ants.
(See also our rulings on Complainants' Ex- |
|
|
ception
Nos. 43 (p. 15), 47, 66 (p. 20), supra.) |
|
600 |
Denied.
The Hearing Examiner's conclusion at I.D. |
|
|
para. 245
is correct and is supported by the weight |
|
|
of the
evidence. The record reveals that prior to |
|
|
1960,
Chronicle's promotional efforts were no more |
|
|
extensive
than those of the San Francisco Ex- |
|
|
aminer
(Tr. 5042-44, 5179 (second page so num- |
|
|
bered),
5190). After 1960 it was the San Fran- |
|
|
cisco
Examiner which initiated intensified promo- |
|
|
tional
efforts (Tr. 5047, 5114, 5117, 5125, KRON |
|
|
Ex. No.
171, Table 3). |
|
601 |
Denied.
See our Decision dealing with this matter. |
|
602, 642 |
Denied.
The Examiner's conclusions at I.D. para. 248 |
|
|
are
correct and are supported by the weight of the |
|
|
evidence.
The requested conclusions relating to ad- |
|
|
vertising
rates are not supported by the record (see |
|
|
our
rulings on Complainants' Exception Nos. 64 |
|
|
(p. 22),
65 (p. 22), 66 (p. 22), supra). The re- |
|
|
quested
conclusions concerning syndication con- |
|
|
tracts
and supplementary news services are con- |
|
|
trary to
the record (see our rulings on Complain- |
|
|
ants'
Exception Nos. 76-84, supra). |
|
603, 604,
643 |
Denied.
The Examiners' conclusions at I.D. paras. |
|
|
254-261
are correct and are supported by the |
|
|
weight of
the evidence. (See also our rulings on |
|
|
Complainants'
Exception Nos. 88-366). |
|
605,
622-624, |
|
|
626, 627,
635, |
Denied.
The Examiner's conclusions at I.D. paras. |
|
636. |
264-269
are correct and are supported by the |
|
|
weight of
the evidence. (See also our rulings on |
|
|
Complainants'
Exception Nos. 367-594, supra). |
|
606 |
Denied.
We have thoroughly reviewed the record rela- |
|
|
tive to
the excluded testimony of Messrs. McCabe |
|
|
and
Berner (Tr. 3862-70, 4033-35, 4038, 4405-06, |
|
|
4482-83,
4706-11; B.B. Proffer No. 2; KRON |
|
|
Proffer
No. 3), and we conclude that the Exam- |
|
|
iner's
ruling was correct. The Examiner based his |
|
|
ruling
first on Constitutional grounds and later on |
|
|
the
grounds of relevance and materiality. We affirm |
|
|
on both
grounds. United States v. Citizen Publish- |
|
|
ing Co.,
394 U.S. 131 (1969), relied on by Complain- |
|
|
ants is
inapposite since the excluded testimony in |
|
|
no way
concerns business or commercial advertis- |
|
|
ing
practices of the newspaper which would limit |
|
|
the
protection of the First Amendment. Likewise, |
|
|
Red Lion
Broadcasting Co. v. Federal Communica- |
|
|
tions
Commission, 395 U.S. 367 (1969) is not con- |
|
|
trolling
here. Further, the excluded testimony in |
|
|
no way
relates to the use of the broadcast stations |
|
|
to
advance the interests of the publishing company |
|
|
and is
thus not relevant or material to the issues of |
|
|
this
proceeding. Moveover, there is no evidence that |
|
|
the
failure to publish Mr. McCabe's column was |
|
|
more than
an isolated instance or that the dismis- |
|
|
sal of
Mr. Berner was for reasons other than those |
|
|
expressed
in Mr. Newhall's letter (KRON Proffer |
|
|
No. 3, p.
10). Finally, the Examiner's ruling was |
|
|
clearly
within his discretion, Chronicle Broadcast- |
|
|
ing Co.,
20 FCC 2d 33, fn. 11 (1969); Chronicle |
|
|
Broadcasting
Co., 20 FCC 2d 903, 909-10 (1969). |
|
607 |
Denied.
The Examiner's ruling was correct. The mat- |
|
|
ters
sought to be elicited by Complainants were |
|
|
strictly
intra-Hearst matters and were outside the |
|
|
scope of
this proceeding (Tr. 4722, lines 7-14). |
|
|
While
Complainants' argument with respect to ad- |
|
|
missions
of a co-conspirator is valid when a conspir- |
|
|
acy has
been established, that is not the case here, |
|
|
as the
Examiner properly found (Tr. 4697-98). |
|
608, 618 |
Denied.
The Examiner's rulings were correct. Yet, |
|
|
even if
they were not so, the exclusion of the testi- |
|
|
mony of
Messrs. Sparks and Craemer and of Com- |
|
|
plainants'
Ex. No. 92 was not prejudicial. The |
|
|
syndication
contracts themselves were placed in |
|
|
evidence
(B. B. Ex. No. 33), and the Examiner |
|
|
found
that Chronicle requests provisions for terri- |
|
|
torial
exclusivity in its syndication contracts and |
|
|
that
Chronicle does not make a practice of waiving |
|
|
those
provisions (I.D. paras. 59, 62). |
|
609 |
Denied.
Contrary to Complainants' assertion, the |
|
|
Examiner
quashed the subpoena on the ground of |
|
|
attorney-client
privilege (Tr. 2204) and not on the |
|
|
ground of
work product, and his ruling was correct. |
|
610 |
Denied.
The Examiner's ruling was correct for the |
|
|
reasons
he stated (Tr. 2923-24). WNER Radio, |
|
|
Inc.,
cited in Complainants' brief, is distinguish- |
|
|
able. |
|
611 |
Denied.
The Examiner's rulings were correct. Prof. |
|
|
Barnett
failed to qualify as an expert witness and |
|
|
his
opinions were therefore, inadmissible. Com- |
|
|
plainants'
contention that the transcript of the |
|
|
Senate
hearing is admissible under the official rec- |
|
|
ords
exception to the hearsay rule is without merit. |
|
|
Concerning
Prof. Barnett's status as a public wit- |
|
|
ness, see
Tr. 7246-53. |
|
612 |
Denied.
The Examiner's ruling was correct. Prof. |
|
|
Owen testified
that his study contained no informa- |
|
|
tion
relating to the rates of any particular firm, |
|
|
including
the Chronicle and KRON-TV (Tr. 4350- |
|
|
51).
See also the Examiner's statement at Tr. |
|
|
5205-06. |
|
613 |
Denied.
The Examiner's rulings are correct for the |
|
|
reasons
he stated (Tr. 3937-60, 4671-87). |
|
614 |
Denied.
The Examiner's ruling was correct (Tr. 5727- |
|
|
28).
Complainants did not demonstrate the rele- |
|
|
vance of
the proffered exhibits to the programming |
|
|
issue. |
|
615 |
Denied.
Complainants' contention is without merit, |
|
|
The
Banzhaf and ASH petitions were considered in |
|
|
our
designation order (16 FCC 2d 882), wherein |
|
|
we
stated: "... the licensee has been making |
|
|
substantial
efforts to meet the essence of our |
|
|
holding
that... it must devote a significant |
|
|
amount of
time to informing the listeners of the |
|
|
health
issue posed by cigarette smoking...." |
|
|
Complainants
have offered no evidence to the |
|
|
contrary. |
|
616 |
Denied.
The Examiner's ruling was correct. There |
|
|
is no
evidence that "Where the Bay Begins" was |
|
|
the only
program that resulted from the March, |
|
|
1966,
community luncheon (Tr. 2843-49). |
|
617 |
Denied.
The Examiner's ruling admitting KRON Ex. |
|
|
Nos.
204-210 was correct for the reason he stated |
|
|
at Tr.
6612. Further, no prejudice has resulted |
|
|
since
these exhibits have been sequestered. |
|
619 |
Denied.
The Examiner's ruling was correct. The evi- |
|
|
dence was
relevant and material to show the |
|
|
reasonableness
of the actions taken by the prin- |
|
|
cipals of
KRON. |
|
620 |
Denied.
The Examiner's rulings were correct. Mr. |
|
|
Evans was
properly qualified as an expert witness |
|
|
(Tr.
7134-39) and his opinions were admissible. |
|
|
Yet, even
if this were not so, the testimony of |
|
|
Chief
Nelder and Mr. Sims covers the same points |
|
|
as those
made by Mr. Evans. |
|
637 |
Denied.
The Examiner's ruling on Complainants' mo- |
|
|
tion was
correct (Tr. 3896-97, 3899-3900). As the |
|
|
Examiner
stated, twelve months were permitted |
|
|
for the
preparation of the case for hearing, and |
|
|
Complainants
have consistently opposed all sug- |
|
|
gestion
for and continuance thereof (Tr. 39-41, |
|
|
45,
61-62, 72, 251, 253, 255). We cannot now accept |
|
|
Complainants'
argument that they had insufficient |
|
|
time to
prepare for hearing, or that by virtue of the |
|
|
Examiner's
ruling they were denied a fair hearing |
|
|
and due
process of law. The Examiner's ruling was |
|
|
clearly
within his discretion (see Section 1.243(f) |
|
|
of the
Commission's Rules) and "will not be |
|
|
overturned
in the absence of a clear abuse of dis- |
|
|
cretion
by arbitrary or capricious action." Selma |
|
|
Television,
Inc., 3 FCC 2d 63, 64 (Rev. Bd. 1966). |
|
|
Complainants
have made no such showing. Gale |
|
|
Broadcasting
Co., cited in Complainants' brief is |
|
|
clearly
distinguishable. In that case only about |
|
|
two
months had elapsed between the designation |
|
|
for
hearing and the certification of the record to |
|
|
the
Commission (see footnote 1). |
|
638 |
Denied.
The Examiner's order was correct and was a |
|
|
proper
exercise of his discretion (see Sections |
|
|
0.341 and
1.44(d) of the Commission's Rules). |
|
|
Moreover,
there were adequate grounds for deny- |
|
|
ing the
motion on its merits. |
|
645 |
Denied.
The Examiner's ultimate conclusion at I.D. |
|
|
para. 270
is correct and is supported by the weight |
|
|
of the
evidence. Complainants' requested conclusion |
|
|
is not
supported by the evidence. |
Rulings on Limited Exceptions of
Chronicle Broadcasting Co. to the Initial Decision
|
Exception No. |
Ruling |
|
1-4,
12-14, 16, |
|
|
17, 22,
23, |
Denied.
The Examiner's findings represent a fair and |
|
25, 27. |
reasonable
recapitulation of a preponderance of |
|
|
evidence
and are adequately supported by the |
|
|
record. |
|
5 |
Granted.
Para. 12(b) of the Examiner's decision is |
|
|
amended
to read "... 18.4% read the Tribune; |
|
|
...."
instead of "... 10.4% read the Trib- |
|
|
une;...." |
|
6 |
Granted,
The last clause of the second sentence of |
|
|
I.D.
para. 24 is amended to read "... and its |
|
|
thirteenth,
ninetieth." instead of "... and its |
|
|
thirteenth,
nineteenth." |
|
7 |
Denied.
The Examiner's findings at I.D. para. 33 |
|
|
adequately
reflect the record. See also our ruling on |
|
|
Complainants'
Exception No. 600, supra. |
|
8 |
Denied,
The Examiner's findings at I.D. para. 37 |
|
|
adequately
reflect the record. See also our ruling |
|
|
on
Complainants' Exception No. 48 (2d sent.), |
|
|
supra. |
|
9-11 |
Granted
to the extent reflected in our Decision and |
|
|
denied in
all other respects. |
|
15, 24 |
Denied.
The Examiner's findings adequately reflect |
|
|
the
record. The additional findings requested by |
|
|
Chronicle
are of no decisional significance. In |
|
|
addition,
Chronicle's exceptions contain argu- |
|
|
mentative
matter in violation of Section 1.277(a) |
|
|
of the
Commission's Rules. |
|
18, 19,
21 |
Denied.
The Examiner's findings at I.D. paras. 122- |
|
|
123, 128
(5th sent.), and 129 (1st sent.) adequately |
|
|
reflect
the record. With respect to the last clause |
|
|
of the
last sentence of Chronicle's Exception No. |
|
|
18, see
I.D. fn. 51. |
|
20 |
Denied.
The Examiner's finding at I.D. para. 128 |
|
|
adequately
reflects the record. Kampmann's sub- |
|
|
ordinates
were also See's subordinates. |
|
26 |
Granted
to the extent reflected in our Decision and |
|
|
denied in
all other respects. See also I.D. para. 237 |
|
|
(5th
sent.). |
|
28 |
Denied.
The Examiner's ruling was correct for rea- |
|
sons he
stated (Tr. 699). |
|
|
29 |
Denied.
The Examiner's ruling was correct. Mr. An- |
|
|
derson
testified under oath in this proceeding, and |
|
|
portions
of KRON Ex. No. 87 were read into the |
|
|
record.
The Examiner's finding at I.D. para. 88 |
|
|
was based
on one of the portions read into the |
|
|
record
(Tr. 2718). The remainder of the exhibit |
|
|
was
irrelevant and was properly rejected by the |
|
|
Examiner. |
|
30 |
Denied.
The Examiner's rulings rejecting KRON Ex. |
|
|
Nos. 135,
136, and 137 on the grounds of relevance |
|
|
and
materiality were correct. |
|
31 |
Denied.
The Examiner's ruling was correct. We have |
|
|
reviewed
KRON Proffer No. 1 and believe that it |
|
|
is not
relevant to this proceeding. |
|
32 |
Denied.
We have reviewed KRON Proffer No. 4 and |
|
|
conclude
that the Examiner's ruling was correct |
|
|
for the
reasons he stated (Tr. 5696-98). |
|
33, 34 |
Denied.
The Examiner's rulings were correct on the |
|
|
grounds
of relevance and materiality. |