7 F.C.C.2d 122

In the Matter of RENEWAL OF STANDARD BROADCAST STATION LICENSES

FEDERAL COMMUNICATIONS COMMISSION

7 F.C.C.2d 122 (1967), 9 Rad. Reg. 2d (P & F) 687

January 25, 1967

OPINION:

[*122] The Commission, on January 25, 1967, with Commissioners Cox and Johnson dissenting and issuing statements, instructed the Chief, Broadcast Bureau, to act on various renewal applications under his existing delegation of authority.

DISSENTBY: COX; JOHNSON

DISSENT:

DISSENTING STATEMENT OF COMMISSIONER KENNETH A. COX

I wish to record my dissent to the renewal of certain AM radio stations -- some already renewed, a few being renewed at this time, and some to be renewed in the future, if and when other difficulties are resolved.

Some of these are stations whose license periods expired on December 1, 1966. My dissent was noted at that time, with the indication that I would file my views at a later time. Due to the pressure of other matters another renewal period has expired before my dissent could be drafted. Since my reasons are essentially the same for the two groups, I will discuss only the February 1, 1967, renewals now before us, simply noting in the footnote n1 below the December renewals to which I dissented, grouped according to my major objection to their program proposals.

n1 (a) Because of inadequate news programming: WAAA, WGTL, WGIV, WESC, WTHB, WAAK; (b) because of inadequate public affairs programming; WABZ, WREV, WPGF, WJAY, WGBR, WIFM, WCPS, WRNB, WSYD, WPYB, WAGS, WAIR, WCNF, WHNC, WAAK, WKIX; (c) because of inadequate aggregate time for public affairs and other (agricultural, religious, and instructional) programming: WKSC, WAIR, WKIX, WCNF, WSTH, WTNC, WTOB, WJRM, WCOG, WORD, WBZB, WMBL, WCHL, WUSM, WADE, WEEW, WKDX, WLSE, WQOK, WYNA, WCBT, WSKY. (For some stations, more than one reason is given.)

The February 1 renewals about which I have question involve the same issues as did those of December 1 -- on their face, they appear to reflect too little service in the informational and inspirational areas and too great a concentration on entertainment and, in some cases, perhaps, sports. Certainly, the amount of proposed news and other (agricultural, religious, and instructional) programming is minimal. There may be sound reasons for this in individual cases, or it may be that the renewal applications of some of the stations do not fairly reflect the service actually provided. I do not believe we should renew -- as the majority has voted to do -- without making further inquiry to determine whether these stations are, in fact, reasonably serving the ascertainable needs of their communities.

Let us consider what we had before us when we acted on these renewals. The applications filed showed the following:

[*123] One station (WGNP) proposes no news programs.

There stations (WDCJ, WAYR, WRHC) propose from 0.6 to 1.6 percent news. n2

n2 One station (WLEY) previously proposed 14.9 percent news and now proposes 10 percent. However, in its 1966 composite week it broadcast only 0.6 percent news. Its present proposal is in a range which raises no question, but I think it should have been queried -- and probably designated for hearing -- on its failure to perform as promised.

Seven stations (WDCJ, WGNE, WGNP, WIVV, WMEN, WOCN, WONS) propose no public affairs programs.

Six stations (WSBB, WKIZ, WJNO, WZEP, WYOU, WAXE) propose from 0.03 to 0.4 percent public affairs.

Ten stations (WFUN, WJCM, WOKB, WQIK, WDLP, WMOP, WONN, WFFG, WCOF, WSUN) propose from 0.6 to 0.9 percent public affairs.

One station (WOCN) proposes no public affairs or other (agricultural, religious, instructional) programs.

Five stations (WSBB, WJNO, WFUN, WOKB, WZST) propose from 0.1 to 2.6 percent public affairs and other.

Nine stations (WAPA, WHOO, WDCJ, WGGG, WIRK, WZEP, WKWF, WFFG, WVOZ) propose from 3 to 3.9 percent public affairs and other.

Fifteen stations (WJCM, WOGO, WNSM, WALT, WROD, WIXX, WMBR, WVJP, WLEO, WONS, WKIZ, WMFJ, WNEL, WINT, WBOP) propose from 4 to 4.9 percent public affairs and other.

I would like to treat each station individually, after considering its full renewal application which may contain explanatory information not called to our attention. However, time does not permit this, and I will have to deal in generalities, with some particularization in a few cases. But I repeat that the above is the only information before the majority when they voted to renew the licenses of these stations. I think that these bare data call for inquiry rather than routing renewal.

Consider the matter of news programming. Broadcasters talk very persuasively -- and at length -- about their journalistic functions, and we have licensed many stations for small communities on the representation that there was a need for a local outlet for community expression, usually with special emphasis on news and public affairs. WGNP is the only station assigned to Indian Rocks Beach, Fla., a community of some 2,000 population near, but not contiguous to, St. Petersburg. In its last renewal it proposed 3.9 percent news, but in its 1966 composite week it broadcast none at all and it proposes none for the future. This seems, on the surface, to raise a question of promise versus performance which should be further explored. In addition, it would seem likely that Indian Rocks Beach has a need for a local news service which is not being met either by the stations or by the newspapers in Tampa-St. Petersburg. Though I have not checked the record, I would suspect that the original application for the facility emphasized this need and what the station would do to fulfill it. I do not believe this Commission should ratify, without further inquiry, a program proposal submitted by the only station in a community and making no provision for news.

WAYR is the only station assigned to Orange Park, Fla., a community with a population of some 2,600, some 13 miles from downtown Jacksonville. In fact, as far as I can determine, it is the only station [*124] in Clay County, which has a population of about 20,000. It proposes to devote 1.4 percent of a typical week to news. As a daytimer it has varying hours, so it is perhaps better to talk about it on an hourly basis. Thus considered, the station represents that it will present 0.84 of a minute of news per hour, with no allowance of any time for a morning or evening news roundup of, say, 10 or 15 minutes. In fact, if we assume a day on which the station was broadcasting for 13 hours, its total news time would be less than 11 minutes for the whole day. And I think this kind of a representation says something about the kind of news the station will present. It would hardly seem likely that so minimal an effort would be thought to justify any local news staff, in the sense of someone whose major responsibility would be the gathering and presentation of news of the community and county. I am afraid that the station's audience will not only get very little news, but that it will consist mostly of "rip, or clip, and read" material.

WRHC is 1 of 10 AM stations assigned to Jacksonville (1 of which may not be on the air yet). It proposed 1.6 percent news, or 0.96 of a minute per hour. While it is true that the other stations no doubt provide a more extensive news service, it seems to me that one of two things must be true. Either this station has an audience which listens principally to its programming and gets virtually no news, or its audience listens to its other programs but turns to other stations for news. If the first, a segment of the public is less informed than it should be as to news developments; if the latter, the station is shirking part of its responsibility and letting other stations in the community bear the cost of providing the people of Jacksonville with radio news. I think neither alternative is a desirable one. I have not been able to check the revenue, expense, and other figures for all the stations dealt with here, so may be criticizing some for doing things they can's afford -- though the majority did not know this, if it is the case, when they acted. However, I have checked on this station and it has substantial revenues and produces what I would imagine most broadcasters would regard as a satisfactory salary-profit figure. I do not think we should routinely renew a station in these circumstances which proposes so little in the way of news. I recognize that all these figures are minimum representations and that the stations may intend to exceed them. However, they are all we have to go on and I do not think we should accept nominal figures on the assumption that the stations will do substantially better. WRHC represented in its last previous renewal application that it would broadcast 4.9 percent news, but actually presented only 2.9 percent in the 1966 composite week. It is, of course, now proposing still less. It seems to me that it -- and I am afraid other stations -- are downgrading their commitments in the more expensive and difficult, and often less popular program categories because they feel the majority of the Commission will not do anything about it. I think this represents abdication of one of our major regulatory responsibilities.

Public affairs programs constitute another important aspect of broadcast journalism. Broadcasters have claimed that many, many [*125] small communities require stations which can discuss local affairs, present local candidates, editorialize on local issues, and otherwise serve as a means of local expression. The Commission has recognized this as an important area of broadcast service. Yet here we have seven stations which propose no programs of this type at all. This includes the only station in Arlington, Fla., a community of 23,000 nearly adjacent to Jacksonville; the only station in Indian Rocks Beach (discussed above); 1 of 2 stations in Panama City Beach, Fla.; the only station on the island of Vieques, off Puerto Rico; and 2 of the 4 AM stations in Tallahassee, the capital of Florida. Certainly, these seem to me situations in which we should inquire further before accepting total absence of any programming in this important program category.

Another group of stations proposes from 0.03 to 0.4 percent in this category. The former is virtually equivalent to no undertaking at all, and the latter represents less than 22 minutes a week for a daytimer on an assumed rough average of 13 hours per day, and only some 40 minutes per week for a full-time station operating 24 hours a day. This still seems to me a grudging contribution to the public's understanding of its problems -- especially when it is noted that this includes one of the two AM stations in New Smyrna Beach, Key West, De Funiak Springs, and Vero Beach.

The third category noted above includes stations with from 0.6 to 0.9 percent public affairs -- the latter figure representing only 91 minutes a week for a 24-hour-a-day station, and much less, of course, for stations -- daytime only or otherwise -- which operate on more limited schedules. This group includes the only station in communities such as South Miami (which, of course, receives service from Miami and Miami Beach, but was found deserving of a station of its own), Immokalee (a town of over 3,000 population which is not close to any larger community), Marathon (a community of over 3,000 in the Florida Keys), and Winter Garden (a town of over 5,500 some 15 miles west of Orlando), as well as 1 of the 2 stations in Sebring (a community of some 7,000 people which is not near any major community). I think we should inquire further before accepting these proposals as a reasonable service to the communities in question. n3

n3 From a late filing it appears that WSLC in Clermont proposes to devote only 0.19 percent of its time to public affairs. This means less than 10 minutes out of its weekly schedule of 87 hours, which hardly seems adequate service in this important area by the only station in this community of over 3,300 population.

In a statement attached to report No. 6064, issued July 8, 1966, I set forth my reasons for dissenting to the renewal of the licenses of 19 AM or combination AM-FM broadcast operations in New York and New Jersey because they proposed to devote less than 5 percent of their time to the public affairs and other categories. I made clear -- as I want to do here -- that it was quire possible that the proposals could be justified, but that I was protesting the routine grant of their applications without inquiring further into the matter.

I am of the same view with respect to the 30 stations listed above which propose less than 5 percent public affairs and other (religious, instructional, and agricultural) programming. I see no reason to restate [*126] my earlier arguments, so am simply attaching them in an appendix. However, I would note a few specifics as to these applications. WSBB, one of two stations in New Smyrna Beach, proposes a total of 0.1 percent for four of our seven program categories; WOKB, the only station in Winter Garden, proposes 1.2 percent. Without explanation, this seems to me so ridiculously inadequate that I cannot comprehend my colleagues' acquiescence without some inquiry into the matter. WDCJ, the only station in Arlington, proposes 3.6 percent for these categories -- along with the 0.6 percent it proposes for news -- which seems, again, to raise obvious questions.

Others of the stations in this category listed above propose a little more in these areas, and in some instances they operate in markets with other broadcast services -- but quite possibly more complex problems requiring broadcast exposure and consideration. However, the proposals are still so minimal as to require further investigation. A very hurried check indicates that some of these stations are not profitable, which may explain some of the programming deficiencies in question. If this is true, I think we should know it, because such information might be of value to us in our overall regulation of AM broadcasting. On the other hand, however, my check indicated that some of these stations are producing quite satisfactory profits or other returns to their owners, so that the need of finding other explanations for their program policies is even clearer. So for these reasons -- and those more basic ones stated in connection with New York-New Jersey renewals -- I think the Commission should not renew these licenses without further inquiry.

WOCN is a special case. It originally proposed 100 percent entertainment, but later amended to add 5.4 percent news programming. However, it still proposes no public affairs, religious, instructional, or agricultural programs. Apparently this station had in the past won some kind of approval for an all-entertainment format, though I have no recollection of ever participating in such a judgment. If so, I think this is an undesirable precedent. If all of the other stations in Miami can claim the same privilege, I would think we could expect a fairly general sloughing off of nonentertainment programming, with consequent diminution in the service radio would provide to the community. If the Commission has authorized this kind of programming on the grounds that the station broadcasts especially meritorious musical programming and would not permit other stations to devote nearly all their time to less meritorious entertainment, I would think this would involve the majority in the kind of subjective programming actions they normally avoid. Again, I do not think it is sound policy to excuse a station -- even in a multistation market like Miami -- from any responsibility for public affairs or other programming, unless it be shown that it has undertaken a corresponding obligation in some other area aside from entertainment, sports, and perhaps news. I might agree that a station could avoid responsibility for extensive religious programming if it demonstrated that it was [*127] making a special effort in the area of instructional programming. What bothers me about approving a very narrow program format is that it may shift the burden of less popular and more difficult or expensive programming to the remaining stations. I do not consider this fair to the competing stations or in the interests of the radio audience in the community.

For these reasons I dissent to the renewals in question, whether now or hereafter granted.

DISSENTING STATEMENT OF COMMISSIONER KENNETH A. COX

I dissent to the renewal of the licenses of these stations without further inquiry as to the adequacy of their service in the areas of public affairs, agriculture, instruction, and religion. What I have to say applies also to WBBF, Rochester, and WTLB, Utica, both in New York, and to WJRZ and WVNJ, Newark, N.J. These four stations are not being renewed at this time because of other deficiencies which will no doubt soon be resolved. However, I believe the Commission should have directed letters to them as well as to the stations listed above.

We have recently adopted a new AM-FM program from which is being used by current renewal applicants to report the programming they propose to present during the upcoming license period. Under more carefully drawn definitions, applicants are asked to state the minimum amount of time they propose to devote normally each week to "news," to "public affairs," and to "all other programs, exclusive of entertainment and sports." This latter grouping includes "religious," "agricultural," "instructional," and "other" programming.

A study of the applications filed by the June 1, 1966, renewal group discloses that 19 AM stations propose to devote less than 5 percent of their broadcast time to the "public affairs" and "other" categories. In some cases other portions of the application seem to suggest that these figures are too low, since reference is made to programming that does not seem to fit into the time allotment indicated. If this is true, we should write the stations to get the matter clarified.

However, if the figures given are accurate, this means that these stations propose to spend as little as 21 minutes a day on such programming and to devote from 95.4 to 98.5 percent of their broadcast time to "entertainment," "news," and "sports." Certainly these latter categories of programming serve the public interest and would be expected to occupy a large percentage of the time of most stations. However, the remaining categories so minimally represented in the proposed schedules of these stations are also vitally important to the public. But they are far less likely to be commercially salable than entertainment, news, and sports; are often more difficult to develop and present; and generally attract smaller audiences. In short, normal self interest and competitive pressures do not serve to stimulate programming in these [*128] categories as well as in the areas more likely to attract maximum audiences and advertiser support.

If broadcasting is not to drift into an ever-increasing concern for ratings and profits -- and if broadcasters who would like to serve the full range of interests and needs in their communities are not to be placed at an intolerable disadvantage by their more materialistic competitors -- I believe that the public, through its Government, must regularly review the performance of those to whom it has entrusted the airwaves. I think this review should be designed to see that certain very general minimum standards are maintained -- and that this can be done without violating the first amendment or section 326 of the Communications Act.

I am not prepared to say that all 19 of these stations are falling so far short of their obligation to serve the public interest in the areas of public affairs, religion, instruction, and agriculture that their licenses should not eventually be renewed. But I am satisfied that they should not be given renewals on the information new before us. I think we should make further inquiry as to the basis for their determination that the minimal time proposed will be sufficient to serve their communities' needs in these critical areas. If the matter is then still in doubt, we should explore the question further in local hearings. There may be valid reasons for the level of programming proposed in some, or all, of these cases. But if, without determining this, we simply accept whatever is proposed -- no matter how slight -- then this makes a farce of the whole reporting and reviewing process.

Our new program form requires an applicant to state the methods used to ascertain the needs and interests of the public served, to describe the significant needs and interests he believes his station will serve during the coming license period, and to list typical and illustrative programs (excluding entertainment and news) which he plans to broadcast to meet those needs and interests. To permit a renewal applicant to recite a long list of community activities engaged in by his staff, to indicate that he concentrates on "government, politics, and public affairs," or to refer to his "dedication in the area of public affairs, documentary, and discussion programs" -- as 2 of the 19 stations here in question do! -- and then to accept without question a grudging 20 or 30 minutes a day as fulfilling his obligation to serve his community's needs in these important areas seems to me an abdication of our duty to the public whose interests we are charged to protect.

This process should lead to the ascertainment of specific needs and to the development of identifiable programs to serve those needs. We cannot say that a licensee in a community faced with the typical problems of today has either accurately measured the needs of his audience or adequately served them if the end result is a schedule overwhelmingly devoted to entertainment and sports, enriched in some cases by a competent, or even distinguished, news service, but with only a crumb of time here and there to discuss and analyze the problems reported in the news, or to bring the inspiration of religion or [*129] the wisdom of its lay and clerical leaders to the public, or to educate them concerning the arts, the sciences, new vocations, or leisure time activities. Radio is now some 45 years old. Surely, it should strive to be -- with due allowance for the admitted need for a viable economic base -- something more than a jukebox, a ball park, and a news ticker. If it is permitted to aim no higher than this, I think a vital resource for community service will be squandered -- and this agency will be largely responsible for that result.

It will not do, I think, to wrap oneself in the first amendment and say that broadcasters must be free to speak as they will. Let them speak, and let them present others whom they believe to be qualified to speak -- but if none of this speech is devoted to commentary on crucial problems of the day, or to religious inspiration, or to instruction, or to service to the agricultural audience (if the station has one), all this concern for freedom has a hollow ring. I think objections to our consideration of the degree to which broadcasters meet the needs of their communities arise more from a desire to be free from the observance of standards of service which may restrict profits than from a burning desire for freedom of expression. Surely, the licensees of these stations can provide adequate time for these important community needs and still have plenty of time for the broadcast of any message they may have for their audiences.

I think it is ridiculous to argue that a broadcaster who has played records, covered sports events, and presented news for more than 23 hours of each day -- all commercially sponsored -- is being subject to an impairment of his freedom to speak if someone inquires whether it would not better serve the public interest, though perhaps not his private interest, if more than 25 or 30 minutes of the remaining hour could be devoted to public affairs, religion, etc. No one proposes to tell him what issues he should discuss, what candidates he should present, what religious services or other programs he should broadcast, what subjects he should teach, or what special programs for the agricultural audience he should offer. He is free to design his service in these areas as he wishes -- but I do not think his right of free speech can be equated with freedom to squeeze the last collar of profit from his use of his publicly licensed channel by playing more records, presenting more sports, and broadcasting more news. The public interest in such programming has presumably been adequately served already -- certainly in relation to the attention given to the other areas in which broadcasters have traditionally served their audiences. I think the maintenance of minimum standards of service in these often less-favored categories of programming actually promotes freedom of expression, since they are precisely the ones which involve ideas and opinion. I think that discharge of a broadcaster's obligations in these areas will represent a more significant exercise of free expression than the playing of another record!

I think it should be recognized that many stations do present substantial amounts of programming in these categories. In this renewal group, 12 stations showed 15 percent or more of their time devoted to [*130] these areas, and 6 of these devoted 20 percent or more of their time to such programming. It, therefore, seems clear that an inquiry to the stations here in question asking them to explain the basis for their proposals would not be unreasonable. It is the contrary course of accepting, without question, whatever they choose to offer the public which seems unreasonable to me. I, therefore, dissent to the renewal of these licenses without further inquiry.

PROGRAMMING RESPONSIBILITY -- RENEWAL OF LICENSE FOR 206 STANDARD BROADCAST STATIONS IN FLORIDA, PUERTO RICO, AND THE VIRGIN ISLANDS

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

I dissent from the almost complete lack of concern for the programming performance and proposals of licensed stations the Commission evidences by this action.

It is appropriate that this Commission give attention to the painting and location of antenna towers, and that it enforce licensees' compliance with the engineering standards of frequency and power essential to an orderly national system of broadcasting.

But to assume that such actions are the beginning and end of our responsibility in licensing radio stations seems, to me, to ignore what the broadcasting business and our statutory mandate are all about.

Broadcasting is programming. n1 It is probably the most powerful means of mass communications man has ever turned loose upon himself. It gains its power not from kilowatts but from content -- from its capacity to create and contort the mind and spirit of a nation.

n1 As this Commission earlier put it: "It is generally recognized that programming is of the essence of radio service." Programming Policy, 20 R.R. 1901, 1910 (1960).

Individual broadcasters operate and program at the pleasure of the American people, as limited licensees of the public's airwaves. n2 Most broadcasters of my acquaintance take this responsibility seriously -- as conscientious citizens and as proud professional men, as well as in their capacity as responsible FCC licensees.

n2 The Communications Act provides that "no * * * license shall be construed to create any right, beyond the terms, conditions, and periods of the license." 77 U.S.C. sec. 301 (1964). And if any doubt could remain as to the meaning of this provision, the Supreme Court has expressed itself unequivocally: "The policy of the act is clear that no person is to have anything in the nature of a property right as a result of the granting of a license. Licenses are limited to a maximum of 3 years' duration, may be revoked, and need not be renewed. Thus the channels presently occupied remain free for a new assignment to another licensee in the interest of the listening public." Federal Communications Comm'n v. Sanders Bros. Radio Station, 309 U.S. 470, 476 (1940).

But this agency also has its responsibility: To renew the broadcasting licenses of none but those licensees serving the public interest. n3 How can that responsibility best be exercised with regard to the programming product of the station owner?

n3 The Communications Act provides that, "Upon the expiration of any license * * * a renewal of such license may be granted * * * for a term of not to exceed 3 years * * * if the Commission finds that public interest, convenience, and necessity would be served thereby." 47 U.S.C. sed. 307(d) (1964). And, as the court of appeals has recently reminded us: "A broadcaster seeks and is granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations. A newspaper can be operated at the whim or caprice of its owners; a broadcast station cannot. After nearly five decades of operation the broadcast industry does not seem to have grasped the simple fact that a broadcast license is a public trust subject to termination for breach of duty." United Church of Christ v. FCC, 359 F. 2d 994, 7 R.R. 2d 2001, 2010 (D.C. Cir. 1966).

[*131] I would be among the last to make hasty proposals as to how the Commission’s responsibility can best be exercised. I would be among the first to caution of the real dangers of governmental abridgment of our freedoms of speech and press. Even had I the power to do so, I would be disinclined to impose my personal standards of taste upon millions of American listeners and viewers. Governmental previewing of all commercial radio and television shows, or the prescribing of their program formats, is, quite wisely, out of the question under our American system.

There are many paths open to a Commission in search of a responsible and effective way to contribute to better programming in the public interest. The alternatives need not be politically unrealistic, offensive to the broadcasting establishment, or appear the hallmark of a "tough regulator." Indeed, some proposals might even be seen by the industry as far preferable to what they must now endure. I will suggest (without endorsement) some illustrative possibilities a little later in this opinion.

It is even conceivable that rational analysis might lead a reasonable man to conclude that the public interest in programming would be best served by encouraging broadcasters to select those program formats that will create the greatest possible advertising revenue. If that position -- held by some broadcasters -- has now been endorsed by the present Commission majority, as it appears to have been, I would prefer that we make this an explicit, public, reasoned judgment rather than go through the motions of appearing to review programming against a public-interest standard when in fact doing nothing of the sort. n4

n4 The economic-administrative-esthetic rationale for doing nothing about programming might run along these lines. The only feasible way to administer standards of programming quality is in the marketplace. Let the broadcaster program what he will. So long as (1) the broadcaster seeks to maximize profit, (2) advertising revenue is based on size of audience, and (3) a given market is served by competing stations, a station owner must program to interest the public. ("The public interest is what interests the public.") When his programming quality falls below a given level, or commercial content rises too high, he will lose audience, his advertising rates will decline, and ultimately he will be driven out of the market and into bankruptcy. Moreover, to pose the conclusion from the either-or logic of such advocates, "If we do not rely upon the diversity achieved by affording these broadcasters a wide area of freedom and independence, then we must rest our hopes for diversity, quality, and freedom entirely on the good will and judgment of the seven men comprising a Government Commission." Loevinger, "The Issues in Program Regulation." 20 Fed'l Communications B.J. 3, 15 (1966).

The legal rationale is that, "an attempt to impose any regulatory standard on programming * * * is not content-neutral and is inconsistent with the first amendment" (ibid.). See also Lee Roy McCourry, 2 R.R. 2d 895, 898 (1964) (Commissioner Loevinger dissenting); Television Program Forms, 8 R.R. 2d 1512, 1524 (1966) (Commissioner Loevinger dissenting); Loevinger, "Religious Liberty and Broadcasting," 33 Geo. Wash. L. Rev. 631 (1965); Kalven and Rosenfield, "Minow Should Watch His Step in the Wasteland," Fortune, Oct. 1962, p. 116, reprinted in, 3A O'Neil. "Government Regulation of Radio and Television," 450 (mimeo. materials, Univ. Calif. (Berkeley) 1966). Yet one must note that the inquiry into program content can on occasion go pretty far before those who hold to this view find it applicable in a given case. Pacifica Foundation, 1 R.R. 2d 747, 752 (1964). ("We find, therefore, that the programming matters raised with respect to the Pacifica renewals pose no bar to a grant of renewal.")

But the Commission can do nothing until it is willing to alter its present complacent and comfortable hear-no-evil, see-no-evil slouch in front of the radio and television sets of America.

The matter presently before the Commission would appear to be relatively routine -- if the staff and majority's response is any indication. In fact, that is the heart of the problem. The FCC's Broadcast [*132] Bureau is about to issue renewal licenses to 206 standard broadcast stations in Florida, Puerto Rico, and the Virgin Islands for 3-year terms beginning February 1, 1967. Whether the authority to issue the renewals has been delegated by the Commission to the Bureau is unclear. n5 In any event, the Bureau feels compelled to report its actions to the full Commission and await word that its report has been noted before issuing the licenses. The Commission has duly noted the report and the licenses will issue.

n5 The Bureau may renew licenses if, among other things, the applicants "accord with Commission policy and standards." 47 C.F.R. sec. 0.281(a)(1) (1966).

The Commission's current ambivalence, born of the conflict between authority and inaction, is revealed in the searching questionnaire which each renewal applicant must fill out, but which is then put to little if any useful purpose whatsoever by the Commission. Each applicant for renewal must indicate what proportion of his programming he proposes for a number of categories, such as news, public affairs, and "other" (meaning agricultural, religious, and instructional). Those applicants whose proposals the staff thinks might concern individual Commissioners are singled out for attention in the Bureau's report.

Let us examine for a moment. Because Commissoner Cox has provided in his opinion a very thorough and useful analysis of these applicants' programming a summary will be adequate for my present purposes.

In the group whose applications for renewal the Commission now approves:

Two stations propose no news programming whatsoever.

Seven propose no public affairs programming -- a total of 23 conceding they plan less than 1 percent.

A total of 88 stations plan to spend less than 5 percent of their time on all "other" (agricultural, religious, and instructional) programming combined.
And note that these are "just promises." Promises that licensees can assume will be ignored by this Federal regulatory commission (judging by today's action). For the report also shows that although only 23 stations (over 10 percent of the group of 206) presently intend to program less than 1 percent "public affairs" during 1967, for the year 1966 not 23, but 49 of the 206 fell below this standard. n6

n6 Statistics aside, if the Commission will renew licenses of stations which propose no public affairs programming, or a de minimis amount, it is hard to see why any licensee would feel himself bound to present any programming in this vitally important area.

What is the point of pretending this is anything other than the total abdication of Commission responsibility that must be obvious to any casual observer? n7 The point, of course, is that millions of Americans are reassured in the belief that there is an FCC in Washington, [*133] reassured in the assumption that the Federal Government is insisting the public's airwaves be operated in the public interest. The point is that, through inaction, the Government enables the occasional irresponsible broadcaster to walk the streets of his community with head high. Each licensee can be self-confident in the satisfaction that on his studio wall hang, side by side, two framed imporimaturs: The Seal of Good Practice of his industry association, and a license from his Federal Government. The existence of the FCC, like other governmental agencies, creates a sense of security and complacency for the citizenry, snug in its assumption that there is effective regulation. So assuming, it does not demand more.

n7 Though scarcely a "casual observer," at least one U.S. court of appeals has reached a similar conclusion: "The theory that the Commission can always effectively represent the listener interests in a renewal proceeding * * * is one of those assumptions we collectively try to work with so long as they are reasonably adequate. When it becomes clear, as it does to us now, that it is no longer a valid assumption which stands up under the realities of actual experience, neither we nor the Commission can continue to rely on it." United Church of Christ v. FCC, 359 F. 2d 994, 7 R.R. 2d 2001, 2010-11 D.C. Cir. 1966). Prof. Louis Jaffe has noted that "There are many persons * * * who feel that neither the industry nor the FCC can be trusted to protect the listener interest." Jaffe, "Standing to Secure Judicial Review: Private Actions," 75 Harv. L. Rev. 255, 284 (1961).

Ultimately, of course, responsible regulators must formulate useful and appropriate procedures for Commission evaluation of programming in the public interest. In devising such procedures one would hope for means that are effective, appropriate, legal, fully considerate of the owner's investment and professional experience, and fully representative of local interests. But so long as we do that, the method we choose is in no sense as important as that we stop abiding the foolishness that section 326 renders us impotent. n8

n8 Sec. 326 of the Communications Act provides in pertinent part: "Nothing * * * shall give the Commission the power of censorship over * * * radio communications * * * and no regulation * * * shall interfere with the right of free speech * * *." 47 U.S.C. sec. 326 (1964). Other sections of the act, its legislative history, prior Commission action, relevant court opinions, and the thoughtful comment in the literature would appear to suggest the inappropriateness of arguing this provision prohibits any Commission involvement in programming review. See, e.g., Programming Policy, 20 R.R. 1901 (1960), and authorities and analysis in Rosenbloom, Authority of the Federal Communications Commission," in "Freedom and Responsibility and Broadcasting," 96 (Coons ed. 1961), and Barrow, "The Attainment of Balanced Program Service in Television," 52 Va. L. Rev. 633, 644 n. 45 (1966). But see note 4, supra.

I agree with Commission Cox that -- given the Commission's present standards and procedures and the past promises of these 206 licensees -- the licenses of some of the broadcasters presently before us [*134] ought not to be renewed without further examination. n9 I am much less certain, however, that the prescription of programming categories is necessarily the best long-range, overall approach for this Commission to take. n10 Local conditions do vary. This variance, this diversity, is at the heart of the greatness of America -- and its broadcasting system. It may be as foolish for a New York City station to carry farm news as it would be irresponsible for a rural Iowa station not to.

n9 Simply in terms of presently applicable statutes and Commission decisions, a station operator is not entitled to retain his license when he operates the station without regard to local needs and interests or the basic purposes for which radio licenses are issued. The Commission has previously made this amply clear. It has stated in its 1960 report regarding Programming Policy, 20 R.R. 1901, 1909, that, "The Commission may not grant, modify, or renew a broadcast station license without finding that the operation of such station is in the public interest. Thus, faithful discharge of its statutory responsibilities is absolutely necessary in connection with the implacable requirement that the Commission approve no such application for license unless it finds that 'public interest, convenience, and necessity would be served'." This "implacable requirement" includes at least the assurance that a licensee will properly devote his station to the development of an informed public opinion and that he will make a reasonable effort to ascertain and meet local programming needs.

With respect to the first of these elements, the Commission stated as follows in its Report on Editorializing by Broadcast Licensees, adopted in 1949, 14 R.R. 3055, at 3056: "It is axiomatic that one of the most vital questions of mass communication in a democracy is the development of an informed public opinion through the public dissemination of news and ideas concerning the vital public issues of the day. Basically, it is in recognition of the great contribution which radio can make in the advancement of this purpose that portions of the radio spectrum are allocated to that form of radio communications known as radio broadcasting. Unquestionably, then, the standard of public interest, convenience, and necessity as applied to radio broadcasting must be interpreted in the light of this basic purpose. The Commission has consequently recognized the necessity for licensees to devote a reasonable percentage of their broadcast time to the presentation of news and programs devoted to the consideration and discussion of public issues of interest in the community served by the particular station."

On the other basic aspect of public service (ascertainment and service of local needs), the Commission stated in the 1960 report, at 1912: "The confines of the licensee's duty are set by the general standard 'the public interest, convenience, or necessity.' The initial and principal execution of that standard, in terms of the area he is licensed to serve, is the obligation of the licensee. The principal ingredient of such obligation consists of a diligent, positive, and continuing effort by the licensee to discover and fulfill the tastes, needs, and desires of his service area. If he has accomplished this, he has met his public responsibility. It is the duty of the Commission, in the first instance, to select persons as licensees who meet the qualifications laid down in the act, and on a continuing basis to review the operations of such licensees from time to time to provide reasonable assurance to the public that the broadcast service it receives is such as its direct and justifiable interest requires." The entire licensing and allocation system is based upon the public value of local facilities serving local needs -- among which, it is universally agreed, the dissemination of information on public affairs ranks high.

Accordingly, it seems to me the Commission has no alternative but to designate for hearing the license renewal of any station which proposes no time, or patently insubstantial amounts of time, for news programs, public affairs programs, or other nonentertainment programming coming under the heading of agricultural, religious, and instructional. The same conclusion would flow, of course, with respect to any station whose past performance indicates such a programming policy. Such action by the Commission does not deprive the licensee of his continuing responsibility to make the initial programming judgments. It does deprive the licensee of the power to make such judgments arbitrarily and without regard to the public interest he is licensed to serve. This is the Commission's own "implacable" duty. I thus agree with Commissioner Cox that -- given the Commission's present standards and procedures and the past promises of these 206 licensees -- the licenses of some of the broadcasters presently before us ought not to be renewed without further examination.

n10 For example, programming categories (1) are extraordinarily broad, and are incapable of meaningful impact on the character and quality of programs; (2) fail to distinguish between relative impact of programming in terms of, for example, the time of day the programming is scheduled; (3) are accompanied by inadequate procedures for obtaining (and meaningfully reviewing) a record of stations' actual programming logs, let alone content; (4) often fail to take account of the local role of broadcasting, and variation in programming needs, desires, and service (for example, coverage of sponsored local high school sports, or other events, may be a form of public service in some communities); (5) do not distinguish the multiple-station, special-service market from the single-station market, and, of course, (6) are not subject to meaningful enforcement by the Commission when substantial discrepancies are found between proposals and performance. And see Lee Roy McCourry, 2 R.R. 2d 895, 898 (1964) (Commissioner Loevinger dissenting). Nevertheless, it may well be this approach, adequately refined, is the most effective and administratively practical solution.

Moreover, the number of stations in a community are relevant in evaluating the programming of each. Presumably, most people would agree that Broadcasters in one- or two-station markets should program a wide variety of services -- including a substantial amount of news and public affairs. In the major markets, where 10 or 20 stations may be available, the listener may be able to receive an "all news" station, the networks' news and other programming, and a "community" or "educational" station providing treatment of local issues. Considering the programming available to such a community as a whole, it may be that little harm is done by other stations providing mostly talk shows, classical music, or rock-and-roll. n11 But these are not the extremes we deal with today.

n11 I appreciate that the matter may not be quite this simple. In the first place, it may be that (a) most radio listeners do, in fact, have one favorite station which they listen to virtually all of the time, and that (b) this ought to be relevant to the Commission. (It is also, of course, quite possible that neither is true.) If that is the case, perhaps may be that there is no administrative feasible way to achieve balance in the total radio programming within a major market without holding each station to the same standard. So long as "market forces" tend to produce "balanced programming" in a given metropolitan area there is, of course, no problem. But what if they do not? Assuming that some program formats are more expensive than others, how is the Commission to decide which what if they do not? Assuming that some station owner is to bear the greater financial burdens?

[*135] Perhaps, rather than devising a more effective role for the FCC, we (and the broadcasting industry) should welcome greater public participation in program judgments. n12 Would some well-publicized, community-wide local hearings into the public service of selected radio stations -- like those in Chicago and Omaha for television stations -- be useful at the time of license renewals? Should we provide more meaningful opportunity for applicants competing for those stations doing least well in serving their communities? Should we make efforts to encourage more letter-writing from the public to the FCC and the broadcasters? Could ratings services, or other polling techniques, be turned to better advantage? Should we provide more precise procedures to be used by broadcasters in surveying the programming needs of the communities they serve? Would it be useful for someone, perhaps the broadcasters themselves, to identify the most important issues confronting the communities involved and the broadcasters' response to those issues? Could periodic, publicized, transcribed, "open-mike" programs, inviting public comment on the station's service, be turned to useful purpose? In polling public opinion, how can we gather information about possible listener and viewer preference for the kinds of alternative programming they are not now receiving and have not experienced?

n12 "[Individual] citizens and the communities they compose owe a duty to themselves and their peers to take an active interest in the scope and quality of the television service which stations and networks provide and which, undoubtedly, has a vast impact on their lives and the lives of their children." FCC, "Television Network Program Procurement." H.R. Rept. No. 281, 88th Cong., 1st sess., 20 (1963). To which the court of appeals has added, "Taking advantage of this 'active interest in the * * * quality' of broadcasting rather than depending on governmental initiative is also desirable in that it tends to cast governmental power, at least in the first instance, in the more detached role of arbiter rather than accuser." United Church of Christ v. FCC, 359 F. 2d 994, 7 R.R. 2d 2001, 2010 (D.C. Cir. 1966).

Another area of potential Commission activity with significant impact on programming diversity, if not quality, are regulations of the often anticompetitive and restrictive practices surrounding program creation, procurement, and distribution by networks and others.

The creation and support of noncommercial, experimental, educational, "public television" represents another area of potential Commission activity affecting the quality and variety of programming fare received by America's listeners and viewers. n13

n13 "President's Message on Health and Education," 113 Cong. Rec., S2677, S2679 (daily ed. Feb. 28, 1967).

Such observations are certainly not exhaustive or dispositive, and some may not even be relevant. But even this brief survey is sufficient to suggest the magnitude and depth of issues and alternatives that must be explored. n14

n14 Certainly I am very mindful of the complexity and sensitivity of the issues involved. Many wise, experienced, and responsible men have struggled with them in the past; undoubtedly many more will do so in the years to come. Any judgments or even concerns which I express now are, of course, tentative. But the problems are so central to the FCC's effective and meaningful functioning that I believe it useful for Commissioners to state their positions from time to time -- whatever they may be. My predecessors and colleagues followed this practice, and I have chosen this occasion to do so. Obviously, the issues warrant far more from a Commissioner than the cursory initial comments I have set forth in this opinion. Hopefully, in the months and years to come, I may be able at least to participate in the kind of more substantial contribution I have called for.

[*136] Two conclusions are clear. First, there are many courses open to us that could vastly improve broadcasting and its vital role in our society without engaging in the fruitless debate about possible censorship that leaves us divided and motionless. Second, within the experience of this Commission, America's great broadcasting industry, and its thoughtful students and critics, simply must lie viable alternatives to the abdication of responsibility evidenced by the Commission's approach to the renewals approved today.