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URL 32: Nick Johnson’s Complete Dissent (February 16, 1972)

URL 32: Nick Johnson’s Complete Dissent (February 16, 1972) (In Chapter 36, page 171) (968 words) (34,700 cum words)

In re the matter of Channel 13 of Las Vegas, Inc. Dissenting Opinion of Commissioner Nicholas Johnson:

A private citizen investigates the programming practices of a television statement and presents evidence to the FCC sufficient to induce a rare FCC field investigation and resulting maximum $10,000 fine against the station. That citizen also charges that the station and its stockholders subsequently pressured the citizen’s employer to fire him There is strong evidence to substantiate the charges. The citizen loses his job. And the Commission concludes that a renewal application should be granted without even a hearing on this issue.

I dissent.

Professor Donald W. Hendon, formerly of the University of Nevada Las Vegas, and now at Columbus College, Columbus, Georgia, undertook a survey of the advertising practices of TV stations in Las Vegas. He concluded that Las Vegas stations, including KSHO-TV, Channel 13, were “clipping” the ends of network programs in order to add additional local commercials. The Commission, after a field investigation, has today proposed a $10,000 fine against KSHO-TV, and in addition sent a pre-hearing letter to KORK-TV asking it to respond to charges of clipping and bringing pressure at the University of Nevada in an effort to have Professor Hendon fired or for forced to discontinue his activities in monitoring the performance of KORK-TV.

In my view, the Commission’s action in proposing a $10,000 fine for clipping network programs is a totally inadequate penalty for KSHO-TV’s activity. The station has apparently carried out a systematic fraud on the ABC network and its viewers, affirming that programming had been carried when in fact it had not, and dropping parts of programs its viewers were entitled to see, including programming required to be broadcast by FCC rules (sponsorship information). I believe sufficient material has been alleged by Professor Hendon, and collected by our field investigation, to require a hearing on the extent of clipping, and the true state of affairs with respect to Professor Hendon’s other allegations. I do not understand how the Commission can find the public interest to be served by this renewal and transfer until the issues have been exposed in hearing.

It is no argument to say that the practice of clipping is widespread, or that the Commission has not explicitly ruled on the question. From my mail, I know that many viewers are convinced they are being deprived of programming because stations over-run programming with their own commercials. Our own staff indicates the practice may be widespread and that it is wrong. I believe a renewal hearing would be required even if clipping were the only issue, but it is not.

The University of Nevada Las Vegas was hoping to secure some surplus equipment from KSHO-TV at the same time KSHO-TV learned of Professor Hendon’s investigation and charges. One of KSHO-TV’s senior officers and major stockholders wrote the University complaining about Professor Hendon’s work and indicating that the surplus equipment he controlled would not be available to the University because the University had permitted Professor Hendon’s inquiry. As for the surplus KSHO-TV equipment, not then available because of the station’s tax loss status, its future availability depended on what the University regents did about Professor Hendon. KSHO-TV also told the University that Professor Hendon had solicited a research contract with the station, inferring that Professor Hendon’s charges were in retaliation for his failure to get station financing. Professor Hendon has flatly denied the allegation as a lie. Professor Hendon was told by the Chairman of his department that the University administration would be unhappy about the complaints from KSHO-TV, and that in view of the circumstances he should look for a new job. Similar charges of pressure by another Las Vegas station have resulted in inquiry by the Commission in a pre-hearing letter adopted today. I cannot understand why in one instance of alleged intimidation, the Commission sends a pre-hearing letter, and in another—involving clipping as well—the charges are whitewashed.

The basic problem in this case is that a contract for the transfer of negative control of the station runs out February 1, 1972, and unless the Commission gives complete approval, the contract will be terminated. We have rushed the investigation, we have rushed the preparation of materials for the Commission, and now we rush through the approval. For the other station in the market against whom intimidation charges are made, we have more time, and also additional evidence involving other commonly owned stations. I would set KSHO-TV’s renewal application for hearing on both the clipping and harassment issues, where the truth of the disputed facts could be tested under oath and cross-examination, and I would hold the proposed transfer in abeyance.

The rise of private attorneys general in broadcast regulation has been an arduous one. The Commission, with its meager resources, relies almost entirely on private citizens to bring matters to its attention. Rarely is a Commission proceeding against a licensee begun unless evidence is first presented from outside by interested citizens.

In addition, private citizens face substantial barriers. A citizen is expected to make a complete evidentiary case based on his own investigation. Often, he faces a hostile Commission. Delays eat into his limited resources. Many of his most important victories have been won in court over vigorous Commission opposition. But he is having an increasing impact—in renewal, transfer, and revocation proceedings, in agreements and negotiations with stations, and in rulemaking / policy-making before the Commission. But now he faces a new barrier. If he dares to complain about a station, he may lose his livelihood even though the Commission agrees his charges are correct. The Commission will do nothing to protect him. The Commission’s record of hostility toward private attorneys general helping it to do its Congressionally mandated job is intact.

I dissent.

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