« iepriekšējāTurpināt »
and 3 percent for mutual funds.23 One rationale given for holdings in two or more competing broadcasting comthis limitation was the great public interest in preserving panies. Comment received from the CAB recognizes this the diversity of programing and service.
problem and suggests that the CAB is unlikely to permit
the potential weakening of competition by such means. RULE NOT ENFORCED
5. Disclosure of Portfolio Concentration in the Same However, the rule on additional holdings was not
Industry by One or a Few Institutions enforced. One reason was the difficulty the FCC had in learning who had the proprietary ownership of the stock
The development of strong portfolio concentrations in when large blocks were held in street names.” The FCC presumably competing companies by the same financial
intermediaries carries a potential danger with it that has began an inquiry into this matter on November 25, 1969. During the course of its inquiry it learned that 19 of the
not as yet been widely recognized. largest banks were in violation of the 1 percent rule.
Concentration in Airlines Divestiture back to the 1 percent level would have involved the sale of $976 million of stock in 25 companies.
For example, bank numbered two in the IIS special Divestiture back to the 3 percent level would have involved the sale of $256 million of stock in 15 companies, different airlines included in the sample. In two of these
tabulation held more than 2 percent of the stock of five and divestiture back to the 5 percent level would have involved $84 million and 9 companies. The American
instances its holdings exceeded 4 percent and in another it Bankers Association and others urged the 10 percent level airlines in the country were not included among the sample
exceeded 6 percent. All of the primary and secondary which would have involved the divestiture of only $4 million of the shares of one company. The Columbia of the stock in five airlines. In one of these cases it held
companies. Bank numbered three held 3 percent or more Broadcasting System, the American Broadcasting System, almost 5 percent and in two others it held over 7 percent and others urged a 5-percent level, while three other broadcasters, faft, Storer, and Corinthian, supported alone held more than 10 percent of the stock of three
of the common stock. These two bank trust departments a 3-percent "benchmark."
different airlines. Last year the FCC established-for banks only—a 5percent concentration limit on the stock of a broadcasting in 19 different industries. These detailed data are shown
Similar stock holding and voting patterns were reviewed company with 50 or more stockholders (for holdings in excess of the seven AM, seven FM and seven TV limit
as Appendix D, Table 2. mentioned above). If a bank holds more than 5 percent in an industry by a limited number of financial institutions
The whole subject of portfolio concentration patterns it must file a disclaimer of intent to control the manage
is so important that it is discussed separately in the ment of the policies of the broadcasting corporation. Second major section of this report. Insurance is another The banks were given 3 years to bring themselves into industry in which the stock holding and voting pattern compliance with the new FCC rules. The 3 percent limit merits substantial attention. for mutual funds and 1 percent limit for individuals were maintained.24
Holdings Should be Public
Surely when a financial institution holds a very subFCC Commissioner Johnson addressed himself to in- stantial percentage of one company in an industry, the stitutional ownership in his dissent in a related case later extent of its holdings in competing companies in that last year. Said Johnson:
industry should be readily available to investors, governOne looks in vain in the majority document
ment bodies, and the public at large. A substantial percentfor any discussion of the important issues con
age of voting control for this purpose might be set at 5 cerning institutional ownership of the stock of
percent. There is ample precedent for the 5 percent level
in the rules of the FCC and CAB, the disclosure level for other companies--questions of control, influence,
takeovers, and the presumption of control in the Bank collusive or paralles behavior where a number of institutions own a company, and the impact on
Holding Company Act. Furthermore, the original draft
of the Investment Company Act of 1940 would have managerial decisions to expend resources to serve limited mutual funds to 5 percent of the shares of a the public. The majority is content to rely on the
portfolio company in addition to the free pool that was assurances of non-interference offered by those seeking the benefits of the rule change.25
provided. (The free pool is no longer of great importance
but was a useful part of the evolution of mutual funds.) Commissioner Johnson pointed out that the views of the Justice Department were not requested, that there 6. Special Problems That Might Exist or Develop in was no reference to the studies of the House Banking the Broadcasting and Publication Industries Committee prepared under Chairman Patman or any evidence of the extent of ownership by mutual funds. Ho The potential implications of concentrated ownership raised the question of why banks should be treated more by a group of financial institutions in the broadcasting and favorably than mutual funds.
publishing industries are so great as to merit special attenThe FCC rules do not seem to provide for the situation tion. These problems would be potentially more intense if in which the same financial interests have substantial the same group of financial intermediaries held a significant
proportion of the outstanding voting stock of two or more » Lee Metcalf, "The Secrecy of Corporate Ownership,” Indiana large competing companies. Any direct or indirect efforts to Law Review, vol. 6, No. 4, 1973. 24 Federal Communication Commission, Docket No. 18751,
limit the diversity, range of programing, or local originaRM-1460, Adopted May 9, 1972.
tions of news and entertainment are a matter of highest 25 FCC 72-525, 79407, File No. BTL-6682, adopted June 14, national concern. The independence of newspapers, 1972.
magazines, radio broadcasting, television, CATV, motion
pictures, and other media that now exist or that might 7. Uniformity of Treatment of Financial Institutions develop would be better safeguarded by a truly wide dispersion of stock holdings in "widely held" corpora- The federal regulations governing the holding and retions.
porting requirement for stocks held by regulated invest
ment companies and by the trust departments of commerBroadcast Company Data Inadequate
cial banks are strikingly different. The holdings of reguThe state of ownership concentration in broadcasting SEC and to those who own shares in such companies.
lated investment companies are reported regularly to the and several other industries that might be of particular These reports are the basis of summaries that are prepared national interest cannot be analyzed in this paper because of lack of data in the 1969 IIS sample. 27
by several businesses. No such data are available regularly Concentrated holdings of the voting stock in broad
from banks except that small part of their share holdings
which is invested in their common trust funds. casting and publishing companies is shown in part by available historical evidence. In 1966, four mutual fund complexes owned 19.5 percent of the common stock of
Review of Portfolio Concentration Limits Appropriate Metro-Goldwyn-Mayer. Only limited information about the extent of bank trust department holdings of common
Specific limitations on individuel portfolio concentrastock in 1967 was made available to the House Banking tions for regulated investment companies were written into and Currency Committee.
the Investment Company Act of 1940 and have not been
revised since that date. In view of the growth the WARRANTED BY PUBLIC CONCERN
institutional investment in general and the changing
meaning of presumptive ownership for regulatory purThe IIS report did not include the institutional stock poses, a searching reconsideration and modernizing of the holdings of most of the major broadcasting, television, relevant provision of the Investment Company Act would magazine, and newspaper corporations. Such information appear to be appropriate. Some criteria for limiting the is warranted because of public concern. None of those concentrated holdings and the potential effect that such corporations that were included in the sample of 800 holdings have on competition might well be considered at stocks were at the 15 percent concentration level among this time. The continuing growth of institutional holdings the holdings of bank trust departments, and only Tele- of votings tock increases the urgency of such considerations. prompter and Norton Simon were at that level
the mutual fund holdings.
NO EXPLICIT REGULATIONS At the end of 1972, mutual funds alone as a group held 15 percent or more of the common stock of the following Except for the regulation of the concentration ratios for three companies: 30
common trust funds, there appears to be no explicit regulaPercent
tions for the limitations upon the portfolio concentrations American Broadcasting Company..
developed by bank trust departments. Capital Cities Broadcasting Corp.
18. 5 Columbia Broadcasting System...
The portfolio concentrations of life insurance companies 15. 3
and property and casualty insurance companies are These summary data do not show the degree of concen
limited generally to 2 to 5 percent depending upon the trated ownership among mutual fund complexes, and states in which the insurance companies are domiciled there are no data for bank trust department holdings since
and in which they operate. State and local pension funds 1969.31 The need for regularly published information for include portfolio concentration limitations similar to various public policy uses and for investor information is those in state legislation governing the investments of too obvious to merit any elaboration.
life insurance companies. Even though stock holdings of 26 The number 50 has been used by the FCC and CAB as an arbi- life insurance companies and especially those of state and trary dividing line for distinction between closely held and widely local pension funds will continue to grow rapidly for the held corporations. In the past, 20 stockholders has often been used rest of this century, the danger of excessively concentrated as the arbitrary breaking point between closely and widely-held corporations. The exact number will always be a matter of judgment ownership by these financial intermediaries appears to be or law but the number selected for the present purposes is unlikely
small at the present time.88 to be of much importance for the large corporations which are the subject of this paper.
8. Future Growth of Individual Portfolio Concentra27 For specific and current (1972) data on bank voting rights in broadcast companies, see pp. 165–182.
tion, and Industry and Overall Concentration Levels 38 Teleprompter is the largest CATV company. Norton Simon, Inc., publishes McCalls and Redbook and also prints magazines for The reason for consideration of concentration now is to other publishers. Norton Simon is a widely diversified company. Some of the other products that it manufactures and/or distributes
contain pools of financial power within acceptable bounds include Hunt Foods, Canada Dry, and Walker Scotch.
before they grow beyond what would be generally accept29 The companies in the 800-stock 118 sample that might be able. First, the present 10 percent limitation for the portconstrued as being in the broadcasting and publishing industry that folio concentration might be reconsidered and reduced-to were recognized as such were: Communications Satellite Corpora- 7.5 percent, for examplo-for regulated investment tion, Gulf & Western Industries, Metro-Goldwyn-Mayer, Twentieth Century-Fox, Technicolor, Time Inc., and Dow Jones & Co., companies, and this same limitation might be applied to Inc.
mutual fund complexes, that is, mutual funds under a ** Investment Companies—1978 (New York: Wiesenberger Services, common management. The free pool, which exempts Inc., 1972) p. 477. a' Recently several of the largest banks have voluntarily disclosed
up to 25 percent of a fund's assets from this limitation, the market value of their largest common stock holdings. These might be reconsidered. Several states have already elimidisclosures generally have been limited to their top 50 holdings in nated the free pool provision for mutual funds operating terms of market value. For example, on August 6, 1973, the Con- within their borders. A review of portfolio concentration tinental Illinois National Bank and Trust Company of Chicago announced its top 50 holdings. Their three largest holdings were
percentages in the special IIS tabulation for regulated as follows: IBM, $210 million; Eastman Kodak, $210 million; and
investment companies indicates that this free pool proTexaco, $166 million. The only publishing company recognized on this list was Dun & Bradstreet, Inc.
33 Robert M. Soldofsky, op. cit., pp. 54-72.
vision is not being utilized anyway. Considerations for larger offerings. Under Regulation A 838 notifications relating to ownership of two or more companies in the for offerings of $254 million were made in fiscal 1971. same industry will be set forth in the next section after In fiscal 1972 there were 1,087 Regulation A notifications the evidence is discussed.
for offerings of $404 million.33 In more than half of these
cases no underwriter was used. PORTFOLIO CONCENTRATION LIMITATION
Arguments for Limitation A similar portfolio concentration limitation might well be applied to both bank trust departments and regulated
Arguments are made for reviewing and reducing the investment companies. Only in 14 instances among the 800
present 10 percent portfolio concentration limitation stocks in the 1969 IIS sample was the illustrative 7.5 quickly. First, the larger the concentrations, the more subpercent concentration ratio exceeded by bank trust de- ject the market will be to wide price fluctuations as a few partments as shown in Table 1. The 7.5 percent level was
larger owners lean in the same direction. The greater the exceeded by mutual funds in only 9 instances for the 800
number of owners in the range of about 1 to 7.5 percent, stocks included in the 1969 IIS sample.
the greater the chances for more diversity of opinion as compared with even higher concentrations. The degree of
price stability and liquidity in the market for a specific Arguments Against Limitation
stock would tend to be increased by lower permitted con
centration levels. Three notable arguments have been made against a Second, the larger the portfolio concentration, the more specific limitation. First, close historical ownership ties likely the holder is to have direct or indirect day-to-day may exist between a company and a specific bank. These influence on the decisions of the business. have been provided for in the case of investment trusts by the free pool arrangement. A free pool providing that
CONCENTRATION OF POWER not more than a specified percentage of the discretionary funds of a bank trust department may be exempted from these portfolio concentration limitations would be useful. limited number of holders or voters is fraught with sus
Third, the concentration of power in the hands of a The
free pool plan was worked out originally because of picion in the United States. In numerous instances such the problems that were encountered in the holdings of suspicion has been well founded. Even with a limitation investment companies prior to the Investment Company such as 7.5 percent, seven institutional investors holding Act of 1940. The problems resulting from the heavy the maximum percentage would have potential absoluto holdings of investment companies in a few industries are a matter of painful historical record. Such a free pool plan was being approached in 1969 is summarized in Table 5
control of the company. The extent to which that condition for stock held by bank trust departments is likely to result in the need for little portfolio adjustment. If such adjust- aspect of the scope of the power of commercial banks was
and shown in detail in Appendix D, Tables 1 and 2. One ments are necessary, a period such as 3 years could be allowed to complete such adjustments, as was provided Conflicts of Interest Related to Nondisclosure”.**
discussed earlier under the subtopic of "Self-Dealing and for in the FCC rulings previously discussed.
Fourth, academic research has shown that only 15-20
stocks need to be owned to eliminate systematic or marSECOND ARGUMENT
ket-related risk of price fluctuations. As professional se
curity analysts and executives apply these findings more A second argument that dates back to the 1940 hearings vigorously, the strong tendency will be to reduce the numon the Investment Company Act is that a small percentage ber of stocks in a portfolio and to increase the portfolio of the funds of the institutional investor will amount to a concentration ratios. Such actions would tend also to revery large proportion of the value of the outstanding stock duce the costs of analyzing and following a larger list of of a small company. The point is well made, but the histor- stocks that are in a portfolio or might be considered for ical record will show very few, if any, instances in which purchase. Imposing a reasonable ceiling on portfolio conthe stocks of emerging companies were not purchased for centrations now would be more desirable and easier to adsuch a reason. Even if a magnificent opportunity is some- minister than to call for a rollback a few years from now. time partly missed because of legislative restrictions, the safeguard is prudent and will tend to prevent unwarranted excesses. When the ownership concentration ratio reaches some level such as 10 percent or above, the case for
Fifth, institutional holdings of common stock are concalling the institutional holder of that much stock the tinuing to increase in relative and absolute terms. Institupresumptive maker of major policy decisions within the
tional holdings are increasing faster than the total market firin is extremely strong.
value of all stocks. The inevitable result is an increase in the extent of concentrated holdings as we move toward the year 2000 and beyond. For the NYSE as now consti
tuted, by 1980 about 30-38 percent of the total market A third argument is to provide access to the capital value of listed shares will be in the hands of institutional markets for small, emerging firms. Surely the capital investors; by 2000 that range will increase to 46-58 permarkets are available to small firms even though they do not offer their shares directly to institutional investors.
33 38th Annual Report of the Securities and Exchange Commission,
1971 (Washington, D.C.: Government Printing Office, 1973), For example, under Regulation A of Section 3(b) of the p. 28. The Regulation A exemption was increased from $300,000 Securities Act of 1934, securities may be offered to the to $500,000 in 1971. public for amounts not above $500,000 provided specific nature of power as it applies to the concentration of ownership
3* For a more wide ranging and philosophical discussion of the conditions are met. Regulation A provides for less stringent within financial intermediaries, see Robert M. Soldofsky, op. cit., requirements for public offerings of $500,000 or less than pp. 114-138.
CENTRAL PUBLIC DEPOSITORY
cent. These projections are discussed in more detail in the
Reporting No Burden final part of this paper. As individual company portfolio concentrations increase, these concentrations will tend to Some means will have to be devised to require instituspread more widely and deeply over industries that have tional investors owning 1 percent or more of a portfolio desirable characteristics for common stock investment by company to report that fact to the company itself in financial institutions.
sufficient time to have that information included in its
next annual report. The major problem is the widespread THE REASONABLENESS OF THE ONE PERCENT custom of institutional investors of holding shares in LEVEL FOR PUBLIC DISCLOSURE
street name for convenience. Although larger companies
may have the time and the staff to sift through the street Table 1 shows that the number of instances of concen- names and to learn the identity of the institutional holder, trated holdings increases at an increasing rate as the that task is often extremely difficult if not impossible. Inconcentration ratio percentage decreases. Within the IIS stitutional owners generally either know or should know sample, 577 instances of concentrations above the 1 per- the extent of their stock holdings in their portfolio comcent level were located. As remarked earlier, the sample panies. Reporting such information to their portfolio comwas so drawn that one could only make an educated esti- panies regularly would require such a relatively small mate that the total number of institutional holdings at
amount of time and added outlay that time and cost the 1 percent level or above may be in the range of 3 to 5
could not be taken seriously as a defense against such a times larger than that of the sample. Numbers of portfolio reporting requirement. concentrations of 1 percent or more is probable in the 1,500 to 2,500 range. Such numbers are well within the CAB REQUIRES PUBLICATION OF INSTITUTIONAL OWNERSITIP limits of administrative feasibility and understanding.
The CAB now requires publication in corporate annual reports of institutional ownership of their stock at the 5
percent level or above. 35 From the individual company's point of view, most The 1 percent level of portfolio concentration as the companies that are subject to portfolio concentration threshold point for the regular reporting and convenient ratios of 15 percent or above would have to list, in their publication of such information appears reasonable. After annual reports, the names of 5 to 10 institutional owners some experience with this threshold level, administrative of their stock along with the number of shares owned. revisions that app to be necessary should be conThe same information would have to be reported by the sidered. During the coming years the background basis for institutional investor, to the portfolio company and to a this threshold point will be changing, and reconsideration contral public depository such as the Library of Congress, will be merited on that basis also. for each stock held at the 1 percent level or above. Table 6 shows the frequency distribution of instances in which the portfolio concentration was 1 percent or more for the 800 companies in the 1969 IIS sample. The tabulation is An argument might be made for moving the threshold limited to total portfolio concentration ratios of 15 percent down to 0.75 percent or even lower to provide stock traders or more for bank trust departments and regulated invest
and investors with additional information. Just how such ment companies.
additional information may be of general use is difficult to
envision. What most stock traders would prefer to know Table 6.-FREQUENCY DISTRIBUTION OF HOLDINGS OF is who bought or sold which shares yesterday, and what
1 PERCENT OR MORE OF THE OUTSTANDING COM. the buyers and sellers are going to do both during the MON STOCK IN THE SAME COMPANY BY INSTITUTIONAL present trading day and the next trading day. They would INVESTORS
also like to have all of the information about each stock, as well as the basis of each trader's decision to buy, hold, or sell. The SEC, the exchanges, the National Association of Securities Dealers, the corporations themselves and the accounting profession have progressed rapidly in the past few years in furnishing more information, better quality information, and more timely information. Even
projected earnings will soon be published in large numbers 7
of corporate annual reports. Regular disclosure of port11
folio concentration information will be useful to investors 10
and others, but there is very great doubt that portfolio 8.
concentration information below the recommended i percent level will be of enough further use to warrant its publication.
REGULAR DISCLOSURE USEFUL
1. 2. 3. 4. 5. 6. 7.
9. 10. 11 12 13. 14. 15.
FULL AND PARTIAL VOTING RIGHTS
1 Number of stocks held in concentrations of 1 percent or above by an institutional investor.
3 Number of institutional investors holding given number of stocks at the 1 percent level or above.
Source: Tabulation for 90 companies from Appendix D, Tables 1-A and 1-B. Based upon 1969 118 sample. Includes only those instances in which the portfolio concentration ratio is 15 percent or above.
The special tabulations made of the IIS data which are being used for this study show both full and partial voting rights for bank trust departments. In numerous instances
28 Civil Aeronautics Board, Part 245—Reports of Ownership of Stock and Other Interests, op. cil. This report summarizes comment received on the preliminary proposal received from two scheduled air carriers, four financial institutions, the Aviation Consumer Action Project, and the Flight Engineers International Association.
LACK OF INFORMATION
partial voting rights amount to 1 to 2 percent of the out- vestment companies had assets of $4.7 billion; noninsured standing stock of the portfolio companies. Most instances corporate pension funds owned about $774 million of stock; of the partial voting authority of stocks held by banks life insurance companies held about $2.1 billion; property is found among the personal trusts and estates admin- and casualty insurance companies held about $3.4 billion, istered by the banks. The stock held by personal estates and state and local pension funds held almost no stock. and trusts constituted somewhat less than half of the $231 The total assets of state and local pension funds were only billion of stock held by the trust departments at the end about $5.3 billion in 1950. of 1970. Banks typically have sole voting authority in employee benefit accounts, which are the most rapidly growing sector of their stock holdings. For large employee benefit accounts, bank trust departments had full
Under those circumstances no one in the 1950's-nor voting authority in about 80.5 percent of the 493 cases
many in the 1960's--seems to have been concerned with sampled by the 11S report. In 8.2 percent of these cases
the potentially explosive growth of institutional ownerthe bank is reported as having no authority; in another ship of common stock that would lead to significant po2.1 percent it consults in voting; in 7.3 percent of these
tential voting control in two or more competing companies cases listed as partial voting authority the bank votes the
in the same industry by a rather limited number of prestock if instructions are not received; and in 1.8 percent this coming development may have been overlooked was
dominant financial intermediaries. One major reason that of the cases the authority differs among stocks within a given portfolio. This paper understates the potential the trust departments of commercial banks.
the lack of detailed information about the stock held by voting power of bank trust departments in that only their sole voting rights have been tabulated.
The 11S report does not provide any direct tabulations
of the extent to which financial intermediaries hold stock Banks Generally Vote All Stock One Way in companies within the same roughly defined industries.
However, the form of the data in the special tabulations The preceding summary of voting rights is not ade- prepared for Senator Metcalf from information collected quately instructive about what happens when stock is for the IIS report made possible the unique industry voted regularly on routine issues. The FCC inquired into analysis presented here. the matter of full and partial voting rights in the investi- Appendix D, Table 2, which has separate subtables for 19 gation it began November 25, 1969, and completed May 9, industries, shows the extent to which the same bank trust 1972. At the conclusion of its investigation the FCC reaf- departments hold stock in companies in the same industry. firmed its position that full and partial voting rights would be treated the same way. The testimony heard by the
IMPORTANT LIMITATIONS FCC included oral presentations from the senior trust officers of four large banks; these officers were questioned few of the companies in some industries were included in
One important limitation of these tables is that only a by the FCC commissioners after their presentations. The FCC Report and Order included the following statement: in terms of understanding the extent to which financial
the basic 800-stock sample of the IIS. Another limitation, The Commission has adopted aggregation of intermediaries may be predominant among a number of ownership of stock in trust accounts where banks corporations in the same industry, is the fact that these hold any right, either partial or whole, to vote tables are prepared for bank trust departments only. For for the reason that any large position in itself the airline industry alone, a broader showing of instituhas the potential to be a force in management tional holdings in 1966 from an earlier study will be prebecause banks generally vote the stock one way. sented. The testimony in the comments and at the The 19 industries and the number of companies inadministrative conference by the trust officers cluded in each are as follows: clearly pointed out that the banks (where they hold the sole power to vote) generally vote all
Number of the stock of a given company in the same way.37
companies Appendix D
in industry table No. Industry
tabulations FURTHER INVESTIGATION WARRANTED
2-A. Airlines. The FCC investigation was apparently more thorough 2-B. Banking, finance and related on this point than that of the SEC. However, further
2-C. Buildinginvestigation is clearly called for. If it turns out that the
2-D. Chemical and allied products... person or organization whose stock is held by a bank trust
Conglomerates and aerospace.. department rarely or never exercises his partial voting 2-F
Drugs, cosmetics, and toiletries.
2-G. authority, the shares held with partial and full voting
Electrical equipment and elec
trical industry. authority should be totaled in applying the recommended
2-H. Electric light and power. 1 percent reporting threshold. Individuals and/or banks
Insurance.. could be required to show cause for any other treatment. 23. Machinery except electrical..
2-K. Meat packing, food, and related PORTFOLIO CONCENTRATIONS COVERING
10 TWO OR MORE COMPETING COMPANIES
2-M. Office equipment/computers.--
2-N.--. Petroleum and gas production The amazingly rapid growth of the absolute and relative
2-0. Primary metals and mining... amounts of common stock held by institutional investors
Retail trade.did not start until about 1950. At that date regulated in- 2-0
2R. Transportation equipment and 36 IIS, vol. 2, table V-13, p. 438.
related products. Federal Communication Commission, op. cit. The term "posi
2-S.-- Wood, paper, and building tion” refers to the number and dollar yalue of shares held in the
materials. stock of a corporation.