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In re Application of WFMJ BROADCASTING CO. For Renewal of License of Station WFMJ, Youngstown, Ohio; RADIO STATION WHHH, INC. For Renewal of License of Station WHHH, Warren, Ohio; CLEVELAND BROADCASTING, INC. For Renewal of License of Station WLEC, Sandusky, Ohio

File No. BR-1010; File No. BR-1158; File No. BR-1873

FEDERAL COMMUNICATIONS COMMISSION

14 F.C.C.2d 423; 13 Rad. Reg. 2d (P & F) 1226

RELEASE-NUMBER: FCC 68-682

June 26, 1968 Adopted

ACTION:

MEMORANDUM OPINION AND ORDER

JUDGES:

BY THE COMMISSION: COMMISSIONER JOHNSON CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT.

OPINION:

[*423] 1. The Commission has before it (1) a petition to deny filed on August 9, 1967, by Local 880 of the Retail Store Employees Union (hereinafter "Local 880") against the renewal of license of stations WLEC, Sandusky, Ohio, and WHHH, Warren, Ohio; (2) a petition to deny filed August 9, 1967, by Local 880 against WFMJ, Youngstown, Ohio; and (3) oppositions to these pleadings. Local 880 did not file a reply to any opposition. n1

n1 The Local 880's petition was also directed against the grant of the renewal of license of station WREO, Ashtabula, Ohio (BR-950). Action, however, is being deferred on that application (and Local 880's petition to deny as it pertains to WREO) while the Commission makes further inquiries.

2. On March 6, 1968, the Commission directed letters to each of the above applicants and to Local 880 to clarify certain disputed facts and to elicit from the licensees direct responses on the subject matter on the controversy. The Commission has also before it the answers from the three licensees to the March 6 inquiries and comments from Local 880.

3. Local 880, the recognized collective bargaining agent for employees of Hill's department stores (hereinafter "Hill's") began a strike at Hill's Ashtabula outlet at an unspecified date in 1966. Shortly thereafter, Local 880 began to buy time on various Ohio radio stations to urge a boycott of Hill's Ashtabula store. Local 880 states "suddenly, without warning or without adequate explanation," on an unspecified date, "station after station in Northeast Ohio found it necessary to cut off the Union's advertising." Local 880 alleges that the cancellation of its advertising was a result of Hill's influence with the various stations. "The answer * * *" Local 880's pleading continues, "* * * is [*424] as old as the history of human pressure; one may assume that Hill's passed the 'word' to the station, and that was enough." Beyond this assumption, no substantiation of the charge is offered by Local 880.

4. Local 880 formally charged Hill's with violations of the National Labor Relations Act for exerting economic pressure against certain radio stations to cause the cancellation of its ads. This charge was rejected initially by the NLRB's regional office and finally by its National Office of Appeals in August 1967.

5. In April of 1966, Local 880 had charged various Ohio and Pennsylvania radio stations (including some of those here petitioned against) with violations of the fairness doctrine. The Commission's letter to Local 880 of April 29, 1966, found no controversial issue of public importance involved in the factual situation and, citing the Communications Act and relevant case law, pointed out that a broadcaster is not a common carrier in the sense that he must accept advertising from all comers or permit broadcasting by anyone who seeks to use his facilities. This does not mean, of course, that a licensee can discriminate unfairly in the sale of time.

6. Underlying the charges that the stations violated the National Labor Relations Act and the fairness doctrine is the broad contention by Local 880 that the three stations bowed to some sort of economic pressure instigated by Hill's department stores and, in doing so, agreed to the cancellation of the union's ads. As pointed out above, this charge, however, has not been substantiated by Local 880, either in the original petitions or subsequent filings. The NLRB has found, after its investigation, no evidence to support it. Contrary to the Communications Act, no affidavit was filed by Local 880 attesting to the facts pleaded in its petition and affirming them on the personal knowledge of some individual familiar with those facts. On the other hand, the stations here challenged have categorically denied that such pressure ever existed or was ever exerted against them by Hill's, either directly or indirectly. In this connection, we note that WHHH, although charged by Local 880 with carrying and later "canceling" union ads, denied ever having broadcast such ads. Local 880, in its March 25, 1968, filing, stipulated that WHHH had never, in fact, carried its ads, offering no explanation for its erroneous charged against WHHH in the first instance.

7. Because Local 880's charges lack specificity, and because in our view there are no substantial or unresolved questions of fact remaining, the Local 880 petitions, insofar as they pertain to WHHH, WLEC and WFMJ shall Be denied: because we find that the public interest, convenience and necessity will be served thereby, those renewal applications shall Be granted.

8. It is ordered, that insofar as they pertain to stations WHHH, WFMJ, and WLEC, Local 880's petitions to deny Are denied; the above-captioned renewal applications of WHHH, WFMJ, and WLEC Are granted.

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

CONCURBY: JOHNSON (IN PART)

DISSENTBY: JOHNSON (IN PART)

DISSENT:

OPINION OF COMMISSIONER NICHOLAS JOHNSON CONCURRING IN PART AND DISSENTING IN PART

[*425] Fairness Doctrine

[In re Applications of WFMJ Broadcasting Co. et al.]

I concur in the results reached by the Commission today. However, I strongly object to the reasoning adopted by the majority. My colleagues have, in my judgment, misinterpreted the broad objectives of the fairness doctrine. They have couched today's decision in language calculated not only to defeat eventually Local 880's claim, but to retard further development of fairness principles as well.

Petitioner, Local 880 of the Retail Store Employee's Union (certified by the NLRB in April 1965 as the collective-bargaining agent of the employees of Hill's department store) struck Hill's Ashtabula, Ohio, store in January or February 1966. Local 880 alleges that, when the Ashtabula strike began, it began to purchase commercial time over radio stations in the northeastern Ohio area covered by the Hill's chain of retail outlets, to tell the public its side of the story of the strike, and to urge union members, families and friends to respect the picket line around the Ashtabula store. After an unspecified period of time, the local's complaint states, "station after station in northeastern Ohio found it necessary to cut off the union's advertising." The union alleges that this boycott was a product of pressure by the department store chain, a substantial purchaser of commercial time from radio stations in its area.

In the spring of 1966, Local 880 went to the National Labor Relations Board for action against Hill's. At the same time, it appeared before this Commission for aid in its efforts to gain access to stations WLEC, WHHH, WFMJ, and WREO in order to broadcast its views on the strike. The local met with defeat at both agencies. The Labor Board ruled against the union on the facts, finding that evidence turned up by NLRB investigators "failed to support the allegation that Hill's had exerted economic pressure on certain radio stations to refuse to carry union advertising." Case No. 8-CA-4316, letter from Office of the General Counsel, NLRB, to counsel for petitioners, dated August 12, 1967, exhibit F (attached to opposition to petition of Local 880). The FCC rejected as a matter of law the union's attempt to invoke the Commission's fairness doctrine. Commission letter, April 29, 1966. The union is also pursuing its claims in the Ohio courts; litigation there is still in progress.

Now Local 880 has returned to the Commission, in opposition to the renewal of four radio licenses. The local advances two claims. First, it argues that the licensees' willingness to accede to the pressure allegedly used by Hill's constitutes a per se offense against their obligation to serve the public interest. Second, it claims that, whether or not it can be proved that economic pressure was the basis for the stations' refusal to carry union advertisements, these refusals nevertheless ran afoul of the fairness doctrine.

[*426] Local 880 here advances a theme which would expand the reach of the obligation imposed on broadcast licensees to insure fair exposition of all viewpoints on controversial issues of public importance. The local's suggestion is that the question of whether to stop at Hill's or participate in the attempted boycott of the department store is a controversial issue of public importance. Further, it is suggested, Hill's routine advertising takes sides on that question -- Hill's advertisements urge customers to shop at Hill's and, in effect, to thereby ignore the boycott. Therefore, Local 880 contends, radio stations which carry Hill's advertisements incur an obligation to provide fair exposition of the contrary view -- the local's position that potential Hill's customers should respect the boycott.

The Commission today hands down a partial response to these claims. I find this partial response only partially satisfactory.

The majority accepts Local 880's first claim -- that the stations should be denied renewal of their licenses because they succumbed to economic pressure by advertisers -- as valid as a matter of law, but unsubstantiated as a matter of fact, at least as far as three of the stations are concerned. I concur in the majority's result on this point as it is applied to WFMJ of Youngstown, WHHH of Warren, and WLEC of Sandusky. My agreement with the majority's summary treatment of this issue is somewhat grudging. Had Local 880 specified in its complaint some ground for its presumption of economic pressure as the motivation for the stations' decision not to carry union advertising, I would have felt otherwise. However, it appears that WFMJ made a good faith investigation into the local import of the Ashtabula strike, before concluding that it was not an issue of local importance, and that WFMJ promptly notified the union of this decision. WLEC made a conscientious attempt to air the local's side of the issue, and discontinued ads only after it had determined, first, that its own Sandusky store was not going to be struck, and second, that sufficient exposure had been afforded the local's point of view (170 ads in 1 month's time). WHHH avers that on advice of counsel -- and contrary to the local's contentions – it declined to accept union ads from the beginning (and, thus, could not have "canceled" them), believing that no fairness question was presented. The evidence, then, is not overwhelming for the stations' assertions that economic pressure was not a motivating force. However, each station has submitted a reasonable explanation detailing how that decision was reached, and the local has not since come forward with pleadings specifying anything more than its initial assertion that "The answer is as old as the history of human pressure. * * *" The lessons of history are mighty, but not a priori persuasive of the reality of contemporary life. I also concur in the majority's decision to ask WREO of Ashtabula for a clear statement of the reasons why it suddenly stopped carrying Local 880's boycott announcements after carrying 322 of them during the period of the strike. Thus far, WREO has been unable to muster any explanation of its turn-about other than the limp conclusory assertion that it was based on "reasons of policy." This is a fancy way of declining to divulge any reasons at all.

[*427] WREO's position seems to me distinct from that of the other three stations involved, not merely because its response to FCC inquiry has appeared more evasive. WREO has a unique fairness obligation. It serves Ashtabula, the city in which Local 880's strike is located. That strike is a local matter, but within its locality it is a matter of unquestioned public importance. Consequently, issues related to that strike -- such as the question whether to shop at Hill's or respect the union's boycott -- are controversial issues of public importance. By permitting the use of its facilities for urging the Ashtabula public to shop at Hill's WREO incurs, in my view, the corollary obligation to see that the other side of the issue is fairly presented to its listeners as well.

The majority, however, rejects the claim that these circumstances give rise to any fairness considerations. In so doing, it has proscribed further examination of WREO's responses to determine the nature and sufficiency of the station's efforts to insure that Local 880 was afforded reasonable access to present its views on the question of whether viewers should shop at Hill's.

I do not believe that this expression of the fairness doctrine comports with Commission precedent or with the logic of the doctrine itself. Accordingly, I dissent to today's opinion, to the extent that it fails to find Local 880's complaint constitutes a valid claim arising under the fairness doctrine.