On May 14, 1971, Clarence S. Duke was convicted of second degree murder for killing his wife's lover. After serving three years in prison, he was paroled and applied for a license to start a radio station in Southern California.
Last year, after several years of consideration, the Federal Communications Commission turned him down. In its final decision, the FCC did not disqualify Duke on grounds that his character was questionable. Rather, it was primarily their concern that he didn't have enough money to finance the station, according to an FCC official.
The Duke decision is an example of what many industry experts see as a significant shift in the rules governing the moral fitness of candidates for the ownership of broadcast stations.
Such a crime "fifteen years ago would have been taken much more seriously," said one FCC official who asked not to be identified. In fact, the license would have likely been denied on character grounds, he said.
Today, the FCC is less concerned about general crimes and more concerned about whether a broadcast candidate would lie to the commission or violate its rules. It has launched a proceeding where only evidence that addresses those factors would be considered, sources at the commission said. The commission could rule on the proceeding as early as next week.
Previous attention to a person's character "used to encourage broadcast applicants to go on a witch hunt against other applicants in hopes it would give them a competitive leg up in comparative licensing situations," the FCC official said. Moving away from close scrutiny of character "is probably a good thing," he added.
But critics fear the FCC proceeding could make it potentially easier for "unsavory" characters to hold broadcast licenses, which are viewed as a public trust.
"Somebody who is a rapist, a perjurer, a cheat or a general slime is less likely to report news in a responsible manner and less likely to ensure that the congressional mandate of fairness and equal time be met," said Andrew Schwartzman, executive director of the Media Access Project, a public interest group. Fairness and equal time rules require broadcasters to present two sides of a controversial issue and grant political candidates equal time in presenting views.
"Therefore, it is entirely appropriate for broadcast licensees to be closely scrutinized as to their character," said Schwartzman, who opposes the direction the commission appears to be taking in its proposal to change the rules. Schwartzman wants the rules tightened.
Currently, a candidate for a broadcast license must be a U.S. citizen and meet technical, financial and character qualifications to win commission approval.
While questions of citizenship, technical and financial qualification are easy to determine, the question of character has been "amorphous," said one high-level FCC official. "We will try to make character much more relevant to what we care about," he said. "That means making sure broadcasters will be truthful to us and will comply with our rules."
In the process, the FCC would still evaluate criminal records but some crimes that in administrations past would have disqualified someone from holding a license on character grounds may no longer apply, said another official.
"We would potentially eliminate some categories of crimes and not look at them," said another official. "Drug dealing may be a bad thing, murder may be all right -- those are extreme examples but those might be things the commisssion would do," he said.
The move comes in the wake of questions raised about the transfer of broadcast licenses in hostile media takeovers. In recent months, media magnate Ted Turner made a hostile takeover bid for CBS Inc. and asked the FCC to grant him a transfer of broadcast license. CBS's Chairman Thomas H. Wyman has said Turner does not have the "conscience" to own a network.
CBS is carefully examining Turner's background to see if it can find material information not previously brought to light about his character in an effort to block Turner's bid. Broadcast lawyers doubt that CBS can build a case against Turner, however the network's task will be made even harder under the new standards.
The new rule in effect "helps people involved in media takeovers in that it eliminates the character issue," said one broadcast lawyer who asked not to be identified. "They could not look at anything that relates to his personal habits or allegedly racist views."
The new ruling could make it easier for people of ill repute to hold licenses, said Joseph Fogarty, an FCC commissioner from the mid '70s to the early 1980s. "It would be much easier under the relaxed standard for an unsavory character to hold a broadcast license," he said. "But so what?"
For years, the FCC has been making decisions along the same lines, it has just not been in writing, he said. "You could rape or pillage domestically or abroad and could still be a fit person to hold a license, nothing has changed since then but the definition," he said.
Nevertheless, with the spate of media mergers and takeovers the commission may have a greater responsibility in determining whether transfers are in the public interest, and that includes character, he said.
"We have to wait and see how it works out and how many mafiosi apply," he added.