KOB’S Decades of Conflict Concludes
[August 2023] In our last exciting episode, we learned how KOB rose through controversy and the opportunity to become a major Southwest radio voice. Challenges were met and usually overcome. But big issues still faced the station as it fought to obtain the coverage protection it felt it needed and deserved. Now the action on 770 kHz moved from New Mexico to Washington.
However, to ensure we do not get lost in the timeline, let us start with a bit of catchup:
In 1948 we see that Wayne Coy, while still FCC Chairman, had told Congress that the Mexicans intended to build a station on 770 kHz under the NARBA treaty (which Mexico still had not signed). He told the Representatives that unless 770 were duplicated (presumably by a New Mexico authorization), the Mexicans would probably move ahead.
Coy also suggested the FCC could duplicate 770 while still allowing the channel to remain I-A under treaty obligation. What was not made clear was whether the FCC would be plowing new ground by this option – after all, at the same time, the Commission was considering breaking up the clear-channel frequencies.
Nevertheless, the Mexican-770 threat would serve as a stimulus to address the KOB matter.
NOW, JUST WAIT
ABC was watching all this.
In 1949, ABC (as a licensee of WJZ) asked the FCC to put KOB back on 1030, where they still held a license. The FCC, in response, cited the impending Clear-Channel break-up rule-making as a reason for keeping its powder dry. KOB, in response, asked that both 770 stations be authorized to operate full-time, full-power, and both with directional antennas (in effect, two I-B stations on an I-A channel). They said this was a simple solution in alignment with proposed Clear-Channel rule-makings.
Faced with this business of a major Clear-Channel proceeding, the FCC staff took a deep breath and “denied all KOB/WJZ/770 petitions for now.” This was followed by a denial of WJZ’s demand for a KOB move to 1030.
A CROWDED FIELD
There were now several applications on file for 770, and the 1030 applications now included KARM, KWBU, KTHT, KUTA, KWSC, and KGA. It must have been fun to be around the FCC’s water cooler when all these applications were tendered.
In a 1951 filing, WJZ told the FCC “it will offer a new frequency proposal for KOB,” although no such proposal was forthcoming, and most observers seemed to agree that 770 was the best channel for a 50-kilowatt station in the Southwest.
WJZ also went before the U.S. Court of Appeals for the District of Columbia and smiled as the judges remanded the case to the Commission, directing the FCC to “resolve this issue with all deliberate speed,” while also reversing the continued extensions of KOB’s temporary authority for 770. The Court said such continued extensions had the effect of modifying WABC’s license without affording WABC an opportunity for a hearing.
The Court said to the Commission: “Follow the laws” but added: “The FCC must exercise its discretion.”
BACK TO THE FRONT BURNER
The Commission thus reactivated the KOB case, removing it from its “pending Clear-Channel-matter-resolution” files. More hearings were scheduled.
WJZ told the FCC to also “look at every other I-A channel before a final determination is made.” A 1951 news report announced that “a showdown is near.” That was a proclamation that would be frequently re-uttered.
There were other skirmishes before the FCC in 1952: WJZ filed to claim it would undergo a “severe loss of listeners” with I-B status, and KOB said, “Prove it.” The FCC seemed to agree with KOB’s suggestion and scheduled another hearing. (Wag’s note: Did the FCC action reflect that their recent Chairman was now a KOB owner?)
JUST DO AS WE SAY, AND WE WILL AGREE
In response to this latest hearing announcement, WJZ said, “Just move KOB to 1030, and we won’t participate as an adversary in the hearings.”
“Besides,” WJZ argued: “the FCC should remember it told WJZ in 1941 that the move was only temporary,” WJZ added that the 1030 issue with WBZ was only a nighttime matter. It weakly suggested that “Westinghouse/WBZ could make up any nighttime losses through coverage by its other stations.” Finally, from WJZ: “If the FCC’s not going to move KOB to 1030, the Commission must look for another channel for KOB” (though WJZ still offered no suggestions).
In March of 1953, WJZ became WABC.
CAN THEY CO-EXIST?
The next FCC hearing was on the wider matter of WABC/KOB co-existence.
On April 6, 1953, the Commission’s Hearing Examiner concluded KOB should stay on 770 and be granted a license co-terminus with its 1030 authorization (5/1/54). (Anecdotally, this hearing and following oral arguments got emotional. KOB later filed to modify part of its pleading “regarding certain characterizations made about ABC.”)
There things sat … for almost a year.
PICKING UP FROM ’53
In 1955, the FCC re-opened the 1953 hearing, initially calling KOB, WABC, and WBZ as participants. Then KXA filed to join the hearing to support its own 770 filing (now 13 years old).
This time KOB won an extension for its 770 operation – the FCC cited statistics that showed this was a better solution than 1030. Also, the Commission turned against WABC its own previous argument (“If WBZ loses with KOB on 1030, WBZ’s co-owned stations can make up the difference”). The Commission pointed out that, absent KOB on 770, WABC’s ‘gain’ would be mostly in areas served by other ABC stations.” KOB and WABC were also told to provide mutual protection. Both stations were ordered to find “representative parcels of land” on which to build directional antennas.
ABC in response, would take the matter to court.
DC LAWYERS AND COURT DECISIONS
1956 was a busy year for the attorneys and the filing clerks.
In response to follow-up pressure from the 1951 Court, the Commission announced the hold-up was due to their discovery that the 1946 data that informed the Clear-Channel matter was “out of date.”
The Clear-Channel Broadcasting Service, sensing shifts in the political winds regarding Clear-Channel break-downs, now chimed in to ask for an entirely new proceeding, not just a data update. Besides, it was pointed out in October 1956 that negotiations with Mexico “may have obviated aspects of the situation.”
In late 1956 the U.S. Court of Appeals ordered the FCC to take immediate action to eliminate the interference to WABC, adding: “Either move KOB or require them to protect WABC.” So the FCC gave KOB ten days to agree to protect WABC by: “Going off the air, going to 1030 (protecting WBZ) or building a directional antenna to protect WABC.”
The Order added that, from its interference data, the FCC thought the last option was the best. And then it added, politically, this was all “pending resolution of the Clear-Channel matter.”
KOB TO GO DIRECTIONAL
KOB was asked how long it would take them to build a directional antenna (90 days seemed to be a good estimate).
This was followed by a Construction Permit for KOB to build the directional system. KOB agreed to directionalize, and the Commission removed KOB’s 770 operating-authority pro forma extensions – while continuing to issue those extensions but now formally qualifying them as “contingent on the resolution of the Clear-Channel proceedings.”
In what was probably a record turn-around time, air-space approval for KOB’s new antenna was granted a month later. The station is set to work, adding a second tower at its transmitter site. The directional system was approved, and 50 kilowatts full-time DA-night was authorized on 4/22/57 (but let us note here that placement of the second tower was not designed to provide the full protection toward WABC that would be mandated later).
Still, that might have been the end of things … but:
AN OWNERSHIP CHANGE AT KOB
While all this was going on, KOB was acquired by Hubbard Broadcasting (over WABC’s objection), and a new level of energy would be inserted into the matter.
Folks not deeply acquainted with the KOB/WABC story believe this fight was always between Hubbard and ABC, but these records have demonstrated how much had gone on pre-Hubbard. KOB may have been fighting defensive battles to this point. Now Hubbard wanted the football.
There is something you need to know about the Hubbard ethic: When Stanley E. and Stanley S. Hubbard believed they were right in fighting for an issue, they would enlist their superb attorneys and consultants and go right to the wall, never accepting defeat when there was one more avenue of approach.
Determination and fairness reflected the Hubbards’ business dealings. “Always fight for what you believe in” was a Hubbard mantra.
In the news reports to follow on the continued battle, we found the headlines in Broadcasting Magazine including words like “battle,” “imbroglio,” “debate,” “feud,” “hoary problem,” “quarrel,” “wrangle,” “fight.” (From this point, we use “Hubbard” and “KOB” interchangeably.)
THE CLEAR CHANNEL HEARING
Hubbard was first able to secure another FCC hearing reiterating the 1949 arguments, and the Hearing Examiner proposed that both 770 stations operate with nighttime directional antennas. That solution would have reclassified 770 as an I-B channel or created a singular I-A channel.
In a Further Notice of Proposed Rule-Making issued in April 1958, this time on the Clear-Channel matter itself, the FCC proposed that five I-A stations (on 660, 770, 880, 1100, and 1180) build directional antennas to protect new western assignments on those channels – solving the KOB problem. Full-time duplicated Class II assignments would also be made on seven other channels. Twelve I-As would remain untouched, and 1030 was “set aside” pending the KOB resolution.
In a 1959 comment on the Clear-Channel proceeding, Commissioner Robert E. Lee said, “Class I stations should provide protection the same way Class II stations do.” He reasoned that “one class of stations should not be allowed to generate more interference than another class of stations.” He was apparently in the minority.
One can imagine how that would go over with the five unprotected 1-A stations.
TRYING ANOTHER APPROACH
In a follow-on Third Notice of Proposed Rule-Making in September 1959, the FCC tried a “substantially different approach” and issued a Table of Proposed Secondary Assignments on 23 of the 25 I-A clears (660 and 770 excepted).
The I-A primary stations would not have to directionalize as I-Bs.
Specific states were called out for some of the duplications; in the case of 770, the assignment read: “at a western state to be determined.”
A SOLUTION IN SIGHT?
Now for the first time, the record shows a glimmer of what would become a decisive argument: network flagship parity.
In late 1958 ABC suggested to the Court that KOB move to 660, 880 (or even 1180) since CBS’s 880 and NBC’s 660 have “a plethora of skywave services in the East.” WABC said that if KOB were to remain on 770, it should be reclassified as a “Class II Station.” (Class II stations were subjected to additional interference and were required to provide additional protection to existing I-A stations.)
Meanwhile, WABC continued to file for extensions in opposition to the FCC order to build an antenna to protect KOB.
In response to one such request, the FCC directed WABC to file for early license renewal with license terms requiring the station to protect KOB at night. ABC ignored the directive. For some reason, the FCC staff concurrently told KOB not to go full-power at night, directional, “until WABC’s license was renewed on its normal date (6/1/60).”
TWO DECADES INTO THE FIGHT
By 1960, as the 770 fight was nearing its 20th year, this is how things stood: KOB was operating full-time at 50 kilowatts, DA/N as an I-B, protecting WABC as though it too were I-B – not as an I-A, which would have required further protection). WABC operated full-time at 50 kilowatts and was not about to protect KOB.
Meanwhile, others were planning to build 50-kilowatt Class II secondary stations across the West on clear channels.
Hubbard Broadcasting now filed on WABC’s license renewal and announced that Hubbard would file to build a 770 I-B operation in New York, protecting KOB. (Hubbard may have also told the Commission it would withdraw this application if WABC agreed to protect KOB). ABC’s opposition was a general objection to the FCC’s policy of allowing competing applications during license renewal.
YES, NO, MAYBE KOB WINS
Then the FCC issued a 1961 “Decision” on the omnibus Clear-Channel matter, walking back its September 1959 “Third NPRM” proposal to duplicate almost all I-As.
This “Decision” would reserve the original twelve I-A channels for possible higher-power operation. Calling out possible states to locate secondary stations, the FCC assigned 770 to New Mexico but did not specify what class of secondary operation would be required there. Artful, to say the least.
A follow-on 1962 hearing was scheduled in which WABC reintroduced the “flagship-parity” argument, and the Commission confirmed KOB’s full-time, DA-night operation on 770. ABC requested the FCC remove WABC’s directional-antenna requirement or said it would take the matter back to court.
KOB in response, asked the FCC to uphold this order, “or this matter will drag on for years.” (Hubbard Broadcasting added in a “salt-to-the-wound” footnote that, if granted 770 in New York, they would have the station on the air in six months.)
That hearing’s 1963 Report said that it partially accepted the WABC argument regarding parity with other flagship stations and pointed out again that other ABC stations covered the service area WABC might lose. The Hearing Examiner had recommended the denial of ABC’s request for “license-renewal specifying non-directional operation,” and the FCC issued an order rejecting WABC’s application for license renewal as a non-directional station.
“MAY IT PLEASE THE COURT…”
Now ABC went before the District of Columbia Court of Appeals, armed with the argument that WABC’s coverage would suffer by comparison with the CBS and NBC flagship stations. ABC pleaded for “equal treatment with the other networks.”
The FCC also wanted standing in the Court to deal with Hubbard’s challenge to WABC’s license “since it was “properly filed during the license-renewal term.” Hubbard said, “WABC created its predicament by refusing to directionalize,” and told the Court that “the FCC has been more than generous in allowing WABC so much time to comply when KOB had only been given ten days to agree to protect WABC.”
Finally, Hubbard argued again that WABC should lose its license since it would not accept the FCC’s order to protect KOB.
But then…
ANOTHER REVERSAL OF MATTERS
In early 1965 that Court, in a unanimous decision, reaffirmed the 1961 Court directive to take into account ABC’s competitive standing, and it reversed the FCC’s directive that both stations be Class I-B.
The Court ruled that ABC was not given fair treatment in the orders to share 770 with KOB since that order would have downgraded WABC from an I-A to an I-B station. It noted that CBS now had its duplication in the West and still managed to maintain protection for the New York flagship as an I-A station.
Few were aware that WCBS worked very closely with KRVN, the 880 duplicating station, to eliminate all nighttime 880 signals to the East. KRVN ended up building a four-tower antenna. (The other duplicating stations in the West would typically use two towers.)
The Court went on to suggest the earlier FCC decision favorable to KOB “may have been overtaken by events or otherwise rendered obsolete.” It even recognized WABC’s argument about the cost of adding a directional antenna. The Court then suggested, ‘maybe Albuquerque does not need a Class I station.’ In strongly chiding the FCC for the length of this proceeding, the justices offered an alternative: the FCC could downgrade all three network flagships to maintain parity.
Then the Court held Hubbard’s New York City 770 application in abeyance.
RETURNING TO THE BASIC 770 ISSUE
In response, the FCC re-opened what had essentially been a closed case (were it not for WABC’s refusal to comply with its orders).
The Commission suggested that, absent a 770 solution that was within its power to enforce, it may have to reduce protection for all three network flagships. (This of course ignited yet another group of attorneys.)
The FCC requested additional information on whether Albuquerque “deserved an I-B station.” It asked the Court for further clarification on its rulings (that request was denied). It asked for Certiorari from the Supreme Court for resolution; that, too, was denied.
So the FCC reopened the Clear-Channel matter for the sole purpose of clarifying the 770 situations and once again asked WABC to propose an alternative, workable channel for KOB, and suggested that absent such an alternative, according to the Court’s order, KOB may very well be reduced to Class II status. (It’s now possible to read into the FCC’s language some sympathy for KOB and an emerging bias against the so-called need for flagship parity…this perhaps in reaction to the Court’s forceful language.)
THE FCC SEARCH FOR A SOLUTION
In April 1966, the FCC, in an Inquiry, called for collaboration among applicants and regulators to find a “fresh solution to the problem.”
All parties recognized the need for large-area service to white areas, but the Commission now suggested that higher-grade (I-B) facilities were not worth the disruption of existing I-A service from the East. ABC agreed, saying New Mexico is no more important than other western areas where Class II stations were being authorized. In response, Hubbard then asked the FCC to hold a hearing with all three New York network licensees to discuss downgrading all of them to I-B.
The Broadcast Bureau’s response to the April 1966 Inquiry was that 770 should remain I-A, that WABC would retain its I-A status, and that KOB should be granted “II-A authority as a secondary station on a I-A channel.” (Class II-A stations must protect I-As but do not receive reciprocal protection.)
Hubbard objected, arguing that all such secondary stations must be I-B, not II-A, and it said the conversion of the secondary authorizations to Class I-B status is a practical solution that allows the existing I-A to retain its facilities. Hubbard added that the FCC is ignoring its mandate to provide public service and suggested that “if the Commission can’t handle this, perhaps Congress could provide the solution.” Hubbard said, “those attempting to provide wide-area service are being thrown to the wolves.” KOB believed the 1958 decision to make both stations I-B is “useful and correct” and should stand.
Hubbard’s next step was legislative. A New Mexico Senator introduced a bill to affirm that “The public interest, not equal treatment” should define FCC actions. There is no further information on whether this bill was heard.
KOB TO STAY ON 770 BUT AS A II-A
The FCC’s 1969 NPRM (Notice of Proposed Rule-Making) was extensive and explanatory – if somewhat defensive.
The Commission acknowledged that giving KOB I-B status on a Class I-A channel was fraught with difficulty, not the least of which was setting a precedent that would invite challenges from other Class II stations wanting equal treatment. It would also thoroughly upset the Table of Assignments constructed during the Clear-Channel rule-making. The FCC proposed that KOB return to the II-A status it had from 1957 to 1963 – thus requiring further protection for WABC.
The NPRM also eliminated a KOB 1030 alternative as unworkable. It noted no one had proposed a workable alternative to 770 except perhaps 1210 and that had been assigned to Guymon, Oklahoma. It rejected the idea of downgrading all three network flagships to parity as contrary to the public interest and defended its original choice of 770 for KOB. It then reminded all parties that AM and FM were now being recognized as a “single aural service,” and noted the many FM stations within KOB’s coverage area.
Hubbard, in response, reminded the record that KOB once had Class I-A status (on 1180), and the station should be returned to that status on 770. Hubbard also argued that WABC provided very little “flagship” programming to its network, that 770 New York programming was now highly local – that radio-network programming on all networks had seriously diminished.
WABC did not respond to this claim.
A FINAL DECISION – ALMOST
After accepting replies, comments, counter-comments, and further replies, the FCC issued its “Final” Report and Order on April 30, 1976.
It confirmed its positions in the 1969 NPRM, noting that Hubbard’s NYC-770 application is thus “moot,” but leaving the door open to further challenges against WABC. It ordered KOB to protect WABC under the standard requirements imposed on a Class II station. And it “Terminated” the proceeding.
Hubbard immediately went to the U.S. Court of Appeals for the District of Columbia. It affirmed the FCC’s Report and Order. In April 1978, Hubbard appealed to the Supreme Court; it refused to hear the case.
So Hubbard’s fight was over. But: Remember the mantra…
DOOR NUMBER TWO
Now trying “Door Number Two,” in 1978, KOB applied for operation as a Class I-A on 770.
KOB had filed on WABC’s license-renewal application and argued that if 770 was to have an I-A station protected by II-A duplication, the I-A assignment should be moved to Albuquerque. At stake, said KOB, was a potential nighttime gain of some 7 million listeners, many of them in underserved areas. Such an I-A move would be “mutually-exclusive” with WABC’s I-A license and, therefore, KOB said, deserved a hearing.
Citing “non-conformance with the Table of Assignments,” the FCC dismissed Hubbard’s application on 11/13/78 (some commissioners voiced fears that “a new round of litigation may be starting”). In 1979 the case went again to the Court of Appeals, this time at the FCC’s request. The arguments were detailed, but the Court affirmed the FCC’s position: the I-A would remain in New York, and KOB would be given II-A status.
And that was that. Or was it?
A NEW PETITION
But then what Broadcasting Magazine called “KOB II” appeared in the March 1981 notices.
Hubbard had petitioned to amend the Table of Assignments, placing the I-A location in New Mexico, and was now filing for a Construction Permit to build an I-A facility there. Hubbard’s argument for this filing was that it needed “to protect its rights” against a 770 application filed for Lafayette, LA.
Hubbard asked the FCC to hold Lafayette’s application “in abeyance” since KOB clearly deserved the channel. It cited the Commission’s mandate to provide “fair and equitable service” and noted the “heavy migration to the Sunbelt,” reminding the FCC that 18 of the 25 I-A channels are located in eastern areas of diminishing population.
Of course, Lafayette fought back. Hubbard’s filing, it said, was based on “speculative, hypothetical and unlikely future Commission determination.” (Lafayette finally came on the air low power in 1981).
A LAST TRY IN THE COURTS
The Broadcast Bureau denied Hubbard’s application for an Albuquerque I-A assignment.
Hubbard applied for review; this was denied on September 30, 1981. Then came a try at the 8th District Court of Appeals: That Court said it “lacks jurisdiction in the matter.”
KOB would now have to conform to the technical rules defining “protection by a II-A station toward a I-A station.” The original I-B directional antenna parameters would not do the job, and KOB would have to rebuild its directional antenna system. That meant moving a tower.
THE ANTENNA WAS MODIFIED
We completed that work in the mid-1980s. Around that time, the station was rebranded as KKOB.
Loss of nighttime service to the state capitol Santa Fe was immediate. KKOB reminded the FCC that the station’s obligations as a primary provider of emergency information to the state’s capitol city were now seriously impaired and proposed synchronous 770 operations in Santa Fe.
We installed a 230-Watt station in Santa Fe in the mid-1980s – it is still running.
KKOB STILL ON 770, STILL 50 KW
The bottom line: KKOB was granted permanent, full-time “II-A” operation on an I-A frequency.
As we know, eventually, those sacred I-As were further duplicated, and at the time of this writing, the FCC is considering relaxing the skywave protection on the remaining I-A stations.
In the context of the dissolution of “Clear-Channel AM” protection and the proliferation of alternative aural services, it now seems the fight was akin to tilting at windmills. But at the time, the stakes were high, and station values and revenues may have been worth the cost.
Besides, “You always fight for what you believe in.”
– – –
Now retired from Hubbard and CBS Radio, Mark Durenberger has long enjoyed looking into the interesting backgrounds of many of the stations and operators that build the broadcast industry. You can contact Mark at Mark4@durenberger.com