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the population, it seems to me if they have made huge profits, and most of them have all this time, with this business as usual approach of denying access to the airwaves to 12 percent of the population, then it seems to me that they have no claim-particularly since the airwaves are publicly owned, which means that I own part of those airwaves as well as they do, it seems to me that they have no claim whatsoever to considerations of whether or not they are going to lose any money. Those are crocodile tears. I haven't had a chance to make any money to lose.

It seems to me there is an overconcern with the fact that they are going to lose some money, which, I believe, with regards to those broadcast facilities, it seems to me there is no reason under the sun why black owners or black prospective owners or white prospective owners for that matter could not buy and thereby prevent them from taking such financial losses.

Senator PASTORE. I am not talking about losing and making money. I am talking about divesting a person of his interest without remuneration, and that is confiscatory. We have to be very careful. I think that you gentlemen have raised an excellent point, there is no question at all about it. I stay awake at nights trying to figure out how we are ever going to do this. It doesn't apply only to the broadcasting industry. It applies to a lot of other industries as well.

Mr. BRANCH. But particularly in this industry.

Senator PASTORE. Somehow we have got to resolve it. But don't let's resolve it with a club. Let's do it in the good old American way. It has worked up to now. Let's see if it can't work in the future.

Mr. BRANCH. It has not worked up to now with regard to the black community, or I wouldn't be sitting here today.

Senator PASTORE. The Portuguese are saying the same thing. The Italians are saying the same thing.

Mr. BRANCH. The black stay back. That is what the good old American way has meant since the founding of this Nation. I want to see some changes in the good old American way which includes me as well as you.

Senator PASTORE. Without destroying the Constitution.

Mr. BRANCH. It seems to me this is a matter of implementing the Constitution, because it has never truly been implemented. It is not a question of destroying it, it is a question of making people live up to it, especially those who have a temporary franchise on the publicly owned airways.

Senator PASTORE. And I agree, of course, in the objectives. It is a question in how to get to it. That is a very important subject. I tell you very frankly I find no fault with your presentation at all. There has been this constant emphasis on S. 2004. I don't know what is going to happen to it. But it doesn't strike me to be the answer to the ills that beset us today.

There is not any ulterior motive by anyone connected with that bill. We are not beholden to the broadcasting industry either. In this committee we are pretty tough with the broadcasting industry. We are tougher than the FCC.

I am glad to see that they are getting a little backbone down there Up to now they have not exercised that authority under the law. Now, the argument has been made that a license has never been. revoked. Whose fault is that? The same people who are going to

give that renewal to somebody else are the same people who have the right to revoke the license. If there has been any fault at all, it has been in the administration of the law, not the law.

Mr. BRANCH. That is one reason we are here, because we want to see good people administer the law.

Father DRINAN. May I go back to a point that was raised before, that the executive committee of the NCCB met with the Commissioners some time ago, and they raised the obvious argument which I mention in the testimony of Mr. Earl K. Moore that they do not have the resources to adequately review 2,400 license renewals each year, and they said we have four examiners or a very, very small staff, and their budgetary allocations prevent the FCC from doing even an adequate job.

I am wondering rather than move toward S. 2004 would you have any thoughts on what would be an adequate budgetary situation where they can adequately say to the 2,400 licensees each year that you have been inadequate in the following areas, or you are good here but weak here. It is absolutely a minimal thing now. This is done on a triennial basis, and we must give up the illusion that there is any renewal process. It is done in an absolute rubber stamp basis.

Senator PASTORE. The only trouble that you have there is the trouble that you have even in our church. You just can't get enough priests to do the job that needs to be done with the people. We can't get the dollars to give every department all the money they want.

You have put your finger right on it. These budgets are being constantly cut down.

Let's assume that we get into the habit of challenging every license at renewal time which, of course, is not beyond the realm of imagination or possibility. As you pointed out, there are over 8,000 licenses in this country. Let's assume that each license becomes contested by a competitive application. You would have chaos, would you not? How could they possibly hear them all? You would have chaos. That is what I am trying to avoid. You have got to get into some systematic way that will bring about equity and justice without bringing in chaos. It has already started over the country, there has been contest after contest after contest. You have to have a hearing officer. Then it goes before the Federal Communications Commission. Then you take an appeal from that and go to the courts. You go to the appellate court, and you go to the Supreme Court.

Let's assume you get yourself into that kind of hassle. I understand it costs $250,000 in the major cities to bring it right through to the ultimate result. In a situation of that kind you would have chaos. We are trying to avoid that. If every license in this country became challenged on renewal time by a half dozen new applicants, where would we be? Where would we get the personnel to handle all the cases? Father DRINAN. I am not certain that will happen, Senator.

Senator PASTORE. It is apt to happen. From where I sit, it is going to happen.

Mr. BRANCH. Senator, it seems to me that the reverse, which is currently true, and that is that the broadcasters up until now have received virtually automatic granting of renewals

Senator PASTORE. Which is wrong

Mr. BRANCH (continuing). Is equally wrong.
Senator PASTORE. I said that.

Mr. BRANCH. Somewhere along the line there has to be a meeting of minds. Somewhere along the line there has to be greater opportunity provided for a turnover in terms of these franchises in which holders of these franchises are not doing an adequate job, are not devoted to the public interest, but are devoted instead primarily to lining their own pocketbooks at the expense of the public.

Senator PASTORE. I agree with you.

Mr. BRANCH. Black as well as white, it seems to me.

Senator PASTORE. I agree with you. But we are talking about a different subject.

Mr. BRANCH. I do not think so, Senator. I think we are talking about the same subject.

Senator PASTORE. Oh, no; we are not.

Mr. BRANCH. Because if S. 2004 as presently conceived is passed into law, then it seems to me that black people will never get a chance to adequately participate in the operation and use of the publicly owned airwaves. We are frozen out, Senator. We are frozen out now. This bill is merely going to put the stamp of finalizing approval upon that being frozen out.

Senator PASTORE. Do you think the Supreme Court would hold constitutional a white man losing his license even though he has done an exemplary job because that license should go to a black man?

Mr. BRANCH. Not at all. The point is the white man has not been doing the job.

Senator PASTORE. Then take his license away. That is what I am talking about. If he hasn't been doing the job, revoke the license.

Mr. BRANCH. If this were applied, and I cannot quite agree with with you, there would be something like 7,000 revocations tomorrow morning.

Senator PASTORE. The same agency that is going to give the new license to the new group is the same agency that has the authority and the gumption to revoke the license.

Mr. BRANCH. I think this subcommittee ought to get after the FCC to see that they do a little revoking.

Senator PASTORE. You ought to come to Washington more often and listen to me in this committee room.

Senator Cook.

Senator Cook. Mr. Chairman, I was just thinking while Mr. Branch was talking that he really ought to be a Republican in my community of Louisville, Ky. We have one newspaper company that prints a morning and an evening paper. I recall that somewhere in its history it endorsed a couple of Republican candidates, so that it can say it is impartial. You should live under those circumstance, and then find out after you fight radio and television how you are going to fight the newspaper situation. Newspapers are not the most profitable institution in this country anymore.

Also, more and more communities have only one newspaper and they are able to ignore the political system, give only their own individual feelings. Then you may feel the same way about newspapers as you do about radio and television.

Mr. BRANCH. I have some knowledge of that, Senator. I have been involved from time to time as a journalist, and I do have some understanding of this whole question of newspaper blanket control as well and the problems involved in newspaper publishing in the country.

In Harlem, for example, the black newspaper most usually circulated is the New York Amsterdam News, and most whites are surprised to find out that technically it is a Republican newspaper.

Senator Cook. Republicans constitute about 48 percent of the representation, but we have to look on pages B-17 or B-14 to find any Republican news after a meeting or a press conference.

Senator PASTORE. Don't lets forget that these nominees were both Republicans.

Senator COOK. That is a switch.

Senator PASTORE. Any further questions?

(No response.)

Senator PASTORE. Father, I want to thank you very much. I want to thank you, Mr. Branch, very much, and you, Mr. Kubasik. We have Mr. Robert Bennett.

STATEMENT OF ROBERT BENNETT, ATTORNEY FOR THE CITIZENS COMMITTEE TO SAVE WFMT, CHICAGO, ILL.

Mr. BENNETT. Thank you, Mr. Chairman.

My name is Robert Bennett. I am assistant professor of law at Northwestern University School of Law. I am here in my capacity as attorney for the Citizens Committee to Save WFMT.

I apologize for the rough form in which you have my remarks, but they were prepared only very recently.

The Citizens Committee to Save WFMT is a group of over 400 listeners of the Chicago FM station WFMT.

If I might take a page out of the book of the last witness to indicate that that 400 figure is the magnitude of the people who indicated that we could use their names publicly. There are actually over a thousand financial contributors to the Citizens Committee.

The committee has been opposing before the courts and the FCC the attempt to transfer the license of WFMT to the Tribune Co., already Chicago's dominant media owner. The matter of that application for transfer, while apparently about to be resolved in a manner satisfactory to the Citizens Committee, is still before the courts and the Commission, and I will therefore not make reference to the specific issues involved in the case.

I am here neither as a proponent nor opponent of either of the nominees. I am here rather because the executive committee of the Citizens Committee to Save WFMT has directed me to testify concerning today's overriding and preeminent issue of communications policy-concentration of control of the mass media. It is not only appropriate, it is vital that you consider this issue as you pass on the President's two nominees for the Federal Communications Commission. I would urge you to examine these men closely on their views on this issue and to withhold your approval if they do not demonstrate a sufficient sensitivity to the need to diversify the control of the mass media.5

The present ownership patterns for the mass media in this country are very disturbing to any one who will bother to examine them and ponder their implications. I will refer specifically to the situation in Chicago, but the Chicago experience is duplicated elsewhere. In our city we have four metropolitan daily newspapers. We have four com

5 The responses of the two nominees appear on p. 70-73.

mercial VHF television stations, with no present sign that the twooperating UHF's are turning the corner toward success. And while there are over 30 radio stations of one sort or another, five of these by virtue of authorized power, antenna height and operating schedule, are so clearly superior to the others that they command more than half the radio advertising revenues. Thus there are a total of 13 mass media which might be called major in Chicago and which have a meaningful capacity to reach the entire city and have an impact upon it. But althrough there are 13 such media, there are not 13 owners. The four newspapers are under two ownerships. One of the newspaper owners owns one of the VHF television stations and one of the five major AM's. Each of the other three VHF's is owned by a network, and each of those networks owns one of the AM's. Thus, there are not 13 owners but six.

None of these six owners of Chicago's major media is controlled in any significant way by black people, though Afro-Americans make up approximately 40 percent of the population of Chicago. Only one of the six-and that the least significant by far is an entity which could truly be said to represent large numbers of Chicagoans.

Some of these media owners make an attempt to present diverse points of view. None of them succeed very well, but even if they did, that would be beside the point. Avoiding concentration of media power is necessary as a prophylactic measure. For in the long run the only assurance against abuse of the media lies in a healthy pattern of media ownership.

Though I favor a vigorous fairness doctrine, let us not fool ourselves that it presents any significant cure for the present structural concentration of media ownership. First of all, policing stations with regard to the doctrine is a haphazard endeavor at best, in large part I might interject, due to the personal problems referred to earlier. Second, the doctrine really requires very little when it is applied. If a broadcaster gives 15 minutes at six in the morning to one side of an issue, the Commission is unlikely to object even though the other side received a full hour during prime time. Third, I doubt that the members of the FCC are attuned to issues of importance to some members of our society, and I suppose this does back at least in part to some of the matters you were discussing with the previous witnesses. Thus the question of whether black capitalism is the fullfilment or antithesis of black power might never be deemed worthy for application of the fairness doctrine. And finally, of course, the fairness doctrine does not require any discussion of issues of public importance. It only requires that, when issues are discussed, all sides be given some access to the medium in question.

Now can we accept the view of many major broadcasters and newspaper owners that there is no concentration problem because anyone can print a pamphlet and because there are several minor radio stations. Tell a citywide advertiser that he can use a 250-watt daytime only station or leaflet advertising and he will scoff in just the same way you must scoff at these broadcaster arguments. The simple fact is that the economic and technological situation is such that very few media are available in any realistic sense to reach the people in a given area and that those that are available are concentrated in even fewer hands.

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