In the Matter of AMENDMENT OF SECTION 1

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In the Matter of AMENDMENT OF SECTION 1.580 OF THE RULES, GOVERNING PUBLIC NOTICE OF BROADCAST LICENSE

RENEWAL APPLICATIONS, AND SECTIONS 1.227, 1.516, 1.571, AND 1.591,

RELATING TO APPLICATIONS MUTUALLY EXCLUSIVE THEREWITH

Docket No. 18495

FEDERAL COMMUNICATIONS COMMISSION

20 F.C.C.2d 191(1969)

RELEASE-NUMBER: FCC 69-534

May 14, 1969 Adopted

ACTION:

REPORT AND ORDER

BY THE COMMISSION: COMMISSIONER COX CONCURRING AND ISSUING A STATEMENT; COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.

[*191]1.Our proposal to require local notice to the public before instead of after the filing of applications for renewal of broadcast station licenses was supported by all parties except American Broadcasting Co. and General Electric Broadcasting Co., Inc.Pointing out that broadcast licensees in given areas normally expire on a fixed, known date at 3-year intervals, these two parties contended that those desiring to file competing applications thus ample notice without the prefiling publication.Storer Broadcasting Co. suggested that local publication within the 4 weeks (rather than the proposed 6 weeks) preceding the deadline for filing renewal applications would be ample.

2.We believe that local public notice prior to filing is preferable to post-filing notice because it gives more notice to the public and affords additional time for republication of defective notices.This will expedite the readying of renewal applications for grant prior to expiration of the current license term.Stations which find a 4-week period ample, as suggested by Storer, may time their local notices accordingly.We retain the proposed 6-week leeway, however, for the benefit of stations who may find it more convenient to allow a longer time in which to assemble their renewal applications, including the required certification of the giving of local public notice.

3.All but two parties supported our proposal to establish deadlines for the filing of petitions to deny broadcast station license renewal applications and applications mutually exclusive therewith.A number of the parties urged, however, that the deadlines be advanced.We had proposed that in the case of timely filed renewal applications, this deadline be the 15th day of the last full calendar month of the expiring license term.This proposal was supported by Columbia Broadcasting System, McClatchy newspapers, Golden West Broadcasters, Mullins[*192]Broadcasting Co., Palmer Broadcasting Co., WOC Broadcasting Co., and Westinghouse Broadcasting Co., Inc.

4.ABC and General Electric Preferred a cutoff date 30, rather than 15 days, before expiration of the current license term.This, they say, would leave enough time to dispose of frivolous petitions to deny, without deferring action on the renewal applications beyond the expiration of the current license term.

5.The law firm of Dempsey & Koplovitz urges that the filing of competing applications and petitions to deny be barred if filed more than 30 days after the Commission gives public notice of the acceptance of the renewal application for filing.This party suggests that the cutoff should in any event be no later than 60 days after the date renewal applications are required to be filed.This would leave the Commission free to act on renewal applications at any time within the last 30 days of the license term, as permitted under section 307(e) of the Communications Act.

6.Another group of parties urged that competing applications be barred unless filed by the date the renewal application is due to be filed.These included the National Association of Broadcasters, National Broadcasting Co., Storer Broadcasting Co., Taft Broadcasting Co., and the licensees of 102 AM, FM, and TV broadcast stations, in behalf of which two sets of joint comments were filed by their counsel.These parties urged principally that competitors for the facilities of existing stations should base their proposals on surveys of their communities, and that it is undesirable and inequitable to afford them the opportunity to examine the renewal application and then outpromise the proposals of existing stations.They believe that simultaneous filings are proper because the competing applicant knows in advance the date when the renewal application is due, and because competing proposals should be the product of familiarity with the community and independent evaluation of its broadcast needs.

7.We do not agree that it would give competing applicants undue advantage to see the renewal proposals of the existing station before filing a competing application.First, it is questionable whether the later filing would give competing applicants significant advantage.The program services of the existing station are publicly known.Few stations alter their proposals significantly at license renewal time.A satisfactory community survey, evaluation and preparation of a sound programming proposal would be difficult to prepare after a renewal application is filed.

8.We are now persuaded that it is desirable to fix the cutoff date at the first day of the last full month of the expiring licensee term, instead of the 15th day, as proposed.This will leave the Commission free to act on renewal applications otherwise ready for grant, at any time during the last 30 days of the current license term as permitted by the act.We do not believe that a persuasive case has been made by parties favoring a cutoff 30 days after public notice of acceptance of the renewal application.It appears appropriate, in the public interest, to permit competing applications and petitions to deny renewal applications to be filed up to the date beyond which the orderly processing of and action upon the bulk of each area's renewal applications[*193]would be impeded by holding up all renewals against the possibility of such filings.The date we have chosen meets this test, and is not, we think, unfair to existing stations or contrary to the principles of the Communications Act, which permits competition, at license renewal time, for existing facilities.

9.We have carefully considered the two oppositions, filed by the United Church of Christ and the National Citizens Committee for Broadcasting, to the establishment of a cutoff date for the filing of applications for existing broadcast station facilities for which a license renewal application is pending.These parties believe a cutoff to be adverse to the public interest because members of the public should have every possible opportunity to file complaints and petitions to deny license renewal applications aganst broadcasters who fail to serve the public interest, and because a cutoff would protect deficient licensees at the moment those deficiencies became known to the Commission and the public, among other related reasons.

10.On the first point, and to the extent that petitions to deny renewal applications may rest, in part, on the contents of renewal applications, including composite logs mentioned by the United Church of Christ, we think the 60-day interval between the filing (and substantially simultaneous local availability to the public) of a renewal application and the cutoff date is adequate for the purposes of evaluation of, and comment to the Commission on, renewal applications by parties seeking to oppose their grant.Nor would the cutoff on formal petitions to deny preclude the submission of, or our consideration of, informal complaints about a station which may be filed with the Commission at any time.Invariably, when such complaints have substance material to a pending license application, they are entertained and carefully considered despite their failure to meet the requirements of a formal petition to deny.

11.As for competing applications, we cannot agree with the contention that there is hardship in requiring their preparation and filing by a date 2 months after the license renewal applications is filed.The United Church of Christ also suggests that the Commission's deferral of action on a renewal application may provide the first spur to the development of a competing application.But the mere circumstance that our action on a renewal application is deferred past the expiring term is not necessarily indicative to dereliction on the licensee's part of a kind which raises a presumption of unfitness.Invariably, among each bimonthly group of licensee renewals, action is deferred in some dozens of cases, mostly because of technical or procedural circumstances which can be, and are, remedied by the licensees, and which do not raise presumptions of unfitness or dereliction so serious as to disqualify the applicant or even to weigh materially against the applicant in a comparative hearing.In those cases where our investigations and hearing processes establish disqualification, the renewal application is denied and the facility becomes available for other applicants.

12.Where competitors for a facility rely upon deficiencies of existing service and upon programming proposals so significantly superior as to enable them to be given decisional weight in a comparative hearing,[*194]we see no hardship in looking to such competitors to commence their preparation -- including the required community survey and the elaboration of programming proposals based upon careful evaluation of its results -- early enough to permit the completion and filing of the competing application not later than 2 months after the renewal application is due to be filed and a month before the license term expires.The programming services of the existing station are matters of public knowledge, as are the dates when the license term expires and when renewal applications are due to be filed.We think that the cutoff date we now adopt reasonably balances all the pertinent considerations of the public interest, administrative practicality and reasonable notice to prospective applicants, complainants and licensees.

13.Several parties in their reply comments suggested that the rule should fix the cutoff, in the case of older renewal applications already on file, at 30 days after publication of the rule in the Federal Register.The rule changes we adopt herein will enter into effect on June 25, 1969.That will be the cutoff date for filing applications mutually exclusive with, and petitions to deny, then pending applications for renewal of licenses whose terms expired June 1, 1969, of earlier.This conforms substantially with the suggested provision, but designates a fixed cutoff date, embodied in the rule, applicable to now pending renewal applications on which action has been deferred past the expiration of the previous license term.The regular cutoff date prescribed in the rules (first day of the last full month of the expiring license term) will apply to pending applications for the renewal of licenses expiring August 1, 1969, n1 and thereafter.

n1 The Aug. 1, 1969, expiration date applies to radio and regular television stations in Pennsylvania and Delaware, and to television translators inMontana.

14.We retain the proposed delay of the deadline for late-filed renewal applications.

15.In cases where renewal applications are deferred pending action on assignment and transfer applications, the deadlines applicable to the assignor or transferor will apply.

16.Accordingly, It is ordered, under authority found in sections 4(i), 303(f), and 307 of the Communications Act of 1934, as amended, that effective June 25, 1969, the rule amendments Are adopted, and this proceeding Is terminated.

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

SEPARATE STATEMENT OF COMMISSIONER KENNETH A. COX

I concur in this action, though I would have preferred the proposal set forth in the Notice.That would have fixed the cutoff date at the 15th of the month preceding the renewal date, thus giving the public 25 percent more time, after the date by which the station's renewal must be filed, in which to complete and file a petition to deny or a competing application.

I sympathize with the desire of the United Church of Christ and the National Citizens Committee for Broadcasting that the public have as much time as possible to file whatever pleadings may be felt[*195]necessary in order to improve local broadcast service.This leads them to feel that there should be no cutoff, so that counterpleadings could be filed against a renewal application even after expiration of the old term -- assuming, of course, that no action has been taken and the station is, therefore, in deferred renewal status.

However, I don't think such a vague, open-ended arrangement serves anyone's interest, certainly a station whose renewal has not been granted before the expiration of the old license because of some technical deficiency in its filing or because of delay on the Commission's part has a right to be concerned about an extended period of exposure to adverse filings.I think the Commission needs to have the option of deferring renewal while it completes processing or conducts an investigation, without feeling that it is thereby exposing the subject station to risks not shared by others in its renewal group.

And I really think that those members of the public who are dissatisfied with the performance of a local station and want to do something about it are best served by definite rules which tell them precisely when they must act.Most of us tend to work toward deadlines.So the members of such a group can plan most effectively if they know that their pleadings must be filed by a specified date.If they simply proceed on the assumption that renewal of the station they are concerned with might be deferred, and count on being able to file after the renewal date, they are likely to find their efforts aborted by an announcement that the Commission has renewed the license.Indeed, even in the absence of the rule we have just adopted, their opportunity to challenge the station's renewal could be terminated by a grant any time within 30 days prior to the renewal date.So I think they are better off knowing that they can file any time up to the specified date, and that they have to meet that deadline.

The cutoff date has to fall before the renewal date so that all unopposed applications which are found to be in proper order can be granted in a timely fashion -- simple good administration requires that.The real question, therefore, was whether the cutoff for filing should be fixed at 15, 30, or 90 days before the renewal date.I think the first alternative would have been the best, since it would have fit our processing patterns and at the same time would have allowed public groups the maximum reasonable time for contesting renewal of stations which they feel have not served the public interest adequately.Having been unable to persuade my colleagues to adhere to this proposal -- though it had substantial broadcaster support -- I concur in the 30 day provision as the next best alternative.

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

The majority's "Report and Order", 16 R.R. 2d 1512 (1969), makes two changes in the Commission's rules: first, it requires broadcast licensees to notify the public, during the 6-week period before they must file their renewal applications, that their license renewal is pending in Washington before the Federal Communications Commission; second, it cuts off the filing of any petition to deny a license renewal or any mutually exclusive application which is received more[*196]than 60 days after the date on which renewal applications must be filed.n1 I have no major complaint with the first change -- although I would also require licensees to bradcast the new deadlines specified in our rules for the filing of petitions to deny and competing applications.My essential disagreement with the majority concerns its second change -- the 60-day cutoff for the filing of petitions to deny and competing applications.

n1 If the renewal application is not timely filed, petitions to deny or competing applications must be filed within 60 days after the Commission has given public notice that it has accepted the late application for filing.

In our "Notice of Proposed Rule Making" in this proceeding (FCC 69-253, docket No. 18495, released Mar. 20, 1969, 34 Fed. Reg. 7964), we stated our view that it might be desirable to limit the filing dates for petitions to deny and competing applications in the interests of orderly and timely processing of such pleadings.(Id. at par. 3.) We suggested a cutoff date of 2 weeks before the expiration of any broadcast license (or 75 days after filing).Although most of the broadcasting industry comments supported this 75-day cutoff, the Commission majority has seen fit to double the industry's ante and cut an additional 16 days off the time previously given to the public to file petitions to deny or competing applications.

If the public is to lose one-third of its present filing time, one would hope the majority would be able to offer a strong public interest justification for its action.Unfortunately, it has not.I urge any interested reader to examine carefully paragraph 8 of the majority's opinion.I do not believe he will find there any reasoned justification for a 60-day cutoff date.The majority does not even attempt to explain why it has picked 60 days, and not 75, or 30, or even zero (simultaneous filings).It assures us only that it is persuaded its decision is correct, and that 60 days is the period beyond which the orderly processing of and action upon the bulk of each area's renewal applications would be impeded by holding up all renewals against the possibility of such filings.(Majority opinion, at par. 8.)

But of course this reasoning is both specious and misleading.It is specious, because the Commission has never held up renewal applications beyond the 60-day period against the possibility of such filings -- nor does any party make this contention.Indeed, the Communications Act expressly permits the Commission to renew broadcast licenses at any time during the last 30 days before expiration.(47 U.S.C. §307(e).)

The majority's reasoning is also misleading, because it suggests that renewal applications would normally be granted shortly after the 60-day period had run.In actual fact, this has never been the case.During the past six renewal periods, for example, virtually no license was renewed earlier than the last week before expiration.This would suggest, at the most, that a cutoff date 7 days before expiration might be appropriate; but nothing in the majority's opinion supports cutting off filings 30 days before expiration.The paucity of reasoning in the majority's opinion unavoidably suggests that there is no public interest justification for reducing the public's filing time.It can only be understood as an out-and-out concession to the industry's interests.

[*197]II.

Quite apart from the majority's failure to justify its decision, there are, in addition, definite reasons why the majority's 60-day cutoff is not in the public's best interest.First, the Communications Act already gives incumbent licensees a substantial headstart in preparing their renewal applications by allowing them to omit information they have previously filed with the Commission.n2 This means that existing licensees can file abbreviated renewal applications, while competing applicants must start from scratch.For this reason it does not seem unfair to give competing applicants additional time to prepare their filings.

n2 47 U.S.C. §307(d) provides: "In order to expedite action on applications for renewal of broadcasting station licenses and in order to avoid needless expense to applicants for such renewals, the Commission shall not require any such applicant to file any information which previously has been furnished to the Commission or which is not directly material to the considerations that affect the granting or denial of such application.* * *"

Second, members of the public may often find it necessary to examine the licensee's renewal application before filing their own documents.This is so for many reasons.The licensee may have upgraded his programing since the last renewal period -- making a petition to deny or a competing application unnecessary.To this extent, the extra time accrues to the benefit of the broadcaster as well as the public.Or a member of the public may wish to question the licensee's promise versus performance in terms of programing during the last renewal term, and compare it with the licensee's current promises.Or a citizens group may wish to check the accuracy of facts contained in the licensee's application -- whether, for example, the community leaders allegedly surveyed were actually consulted, or the list of individuals consulted was truly representative for that community, or network programming on racial issues was systematically preempted.Or, finally, a group having negotiated a contract with a licensee similar to the Texarkana agreement, see KCMC, Inc., 19 F.C.C. 2d 109, 16 R.R. 2d 1067 (1969), may wish to examine the licensee's application to determine whether it has performed its promises.Much of this information may become available only when the renewal application is filed.Members of the public may have difficulty assimilating and analyzing (much less even obtaining) this information in the 8 short weeks now allotted them by the majority.

Third, the majority's 60-day cutoff date does not mean that interested persons have 60 days to examine license renewal applications on file with the Commission.Too often days or even weeks pass before the Commission's staff gets around to making such renewal applications available for public inspection.Administrative delays are legion, and interested citizens groups (as contrasted with industry lawyers) too often get the run around when they ask to examine a particular file.In the recent Washington, D.C.-Virginia-West Virginia-Maryland group of license renewals, for example, over a half-dozen applications due on July 1, 1969, were not available for public inspection until after July 15, 1969 -- more than 2 weeks later.In actual fact, therefore, citizens wishing to examine these applications had less than 45 days, not 60.

The United Church of Christ has had perhaps more experience in representing citizens groups in broadcasting matters than any other comparable organization -- having successfully won the WLBT-TV,[*198]Jackson, Miss., case and negotiated a landmark agreement with KTAL-TV in Texarkana, Tex.In comments filed in this proceeding, the United Church of Christ observed:

In preparing complaints and petitions to deny which are sufficiently factual and specific to obtain a hearing, it is often necessary to consult a station's pending license application and composite week logs.These documents are not always immediately available to the public at the beginning of the 90-day renewal period.Valuable time is lost in having these documents duplicated for use away from the Commission offices.It should be emphasized that public groups seldom can afford Washington attorneys who have immediate access to Commission facilities or who can devote unlimited resources to preparation of filings.Any time that is lost by the public in Commission proceedings is therefore a hardship.

The majority simply rejects these arguments out of hand.(See majority opinion, pars. 9-12.) It is apparently guided by what the industry will find convenient, not what will enable the public to improve the quality of broadcasting.

A fourth defect in the majority's 60-day cutoff is that it makes it more difficult for competing applicants to evaluate the licensee's existing programming service and fashion superior service.There is nothing wrong with a competing applicant examining an incumbent's record and out-promising it, so long as the Commission is given assurance that these promises can be met.That is what the comparative process is all about.During a competitive hearing, the incumbent licensee is given ample opportunity to challenge the feasibility of any programming proposal presented by a competing applicant.Indeed, the incumbent's experience in these matters will no doubt carry substantial weight with the hearing examiner and the Commission.Thus, the incumbent licensee may be able to show, for example, that it has already attempted and discarded the very proposals advanced by the competitive applicant as impractical or prohibitively expensive.Indeed, on programming matters such as these, the incumbent licensee's experience will no doubt give it a substantial advantage over the inexperienced new applicant.And after all, the Commission itself has years of experience in this area and is well versed in making such comparative determinations.It should not be lightly assumed that the Commission is simply unable to sort out unrealistic "pie-in-the-sky" ideas from programing proposals with true merit.

If a competing applicant can design and implement a programming format which is clearly superior to the existing licensee's format, then the real winner is the public.The essential point is that the comparative (competitive) process ultimately promotes promotes innovation in programming.Before one can build a better mounsetrap, one must first know what existing mousetraps are like.Each year, for example, automobile manufacturers examine the performance records of their competitors and then attempt to out-promise them by producing a superior product.When they succeed, the public benefits.When Congress enacted the Communications Act in 1934, it hoped that a continual stream of new entrants into the broadcasting field, or at least the threat of new entrants, would inject a dash of competition into what they feared[*199] would otherwise become a monopolistic industry.The omnipresent threat of new entrants would force broadcasters to upgrade their own programming periodically, even though no actual competing applicant was present, so that their product would stand up favorably if ever challenged by a new entrant.

Unfortunately, it is an old lesson that those who profess the loudest faith in a competitive free enterprise system more often than not want protection from it.The same appears true of broadcasting.What the industry really fears is competition.Rather than meet competition before challenges arise by designing superior programming formats of their own, the broadcasters ask this Commission to insulate them from competition.When that happens, the public loses.And I am afraid that has happened today.

III.

Another aspect of this proceeding warrants comment.This Commission has often been criticized for its excessive deference to the broadcasting industry at the public's expense.In a report on the sale of the Overmyer stations, for example (see D. H. Overmyer, 10 F.C.C. 2d 822, 834, 11 R.R. 2d 967, 980 (1967)), the House Interstate and Foreign Commerce Committee said just this year:

Failure to hold public hearings * * * demonstrates the shocking abdication of regulatory responsibility and disregard for the public interest which have characterized Commission performance under the Communications Act and its own rules and policies.* * * The Commission apparently confused its role as guardian of the public interest with that of guardian of the private interest.

One reason for this widespread proindustry orientation, I think, can be found by examining the background of this proceeding.

Our notice of proposed rulemaking in this proceeding was released on March 20, 1969.We asked that comments be filed by April 11, 1969, and reply comments by April 18, 1969.This gave interested parties wishing to comment on our proposed rule only 22 days in which to find out about it -- itself no easy task without a Washington lawyer to collect all Commission documents as they are released, scan them for material relevant to clients, and notify those clients of the need for submission of views -- and draft comments.The response was typical of must rulemaking proceedings before this Commission.In support of our proindustry rule, the Commission received comments from a vast aggregation of industry wealth and power -- comments in behalf of 166 broadcast stations (67 AM's, 52 F.M.'s and 47 TV's), three networks, and one Washington, D.C. law firm with numerous broadcast clients.In the citizens' behalf, representing the public, the rule was opposed by only two groups: The United Church of Christ (filing a six-page document) and the National Citizens Committee for Broadcasting (filing a one-page, three-paragraph letter).Yet this terrible underrepresentation of the public has been the norm at this Commission for decades.

It is little wonder that the decisions of this Commission are often so one-sided.Even intelligent and able men have great difficulty resisting the intellectual blandishments of the industry when they are[*200]bombarded day after day by the most sophisticated legal and policy arguments on the industry's side, and virtually nothing on the side of the public.It is for this reason, I believe, that the reader can search the majority's opinion in vain for any attempt at justifying this rule in the public interest.n3

n3 One set of joint industry comments filed in this proceeding, for example, invoked the terminology of elementary considerations of procedural fairness at least seven times in arguing for an even stricter cutoff rule, yet did not mention public interest justifications even once.

To be sure, the majority states that its 60-day cutoff reasonably balances all the pertinent considerations of the public interest, administrative practicality and reasonable notice to prospective applicants, complainants and licensees (majority opinion, par.

12), but it doesn't say why or how this cutoff is in the public interest.On the face of it, it seems obvious that any reduction of the time for filing comments by the public would prima facie not be in the public's interest -- although obviously in the industry's interest.What has happened, therefore, is that the industry has been given some small measure of protection from competition at the public's expense.In terms of the legal and economic talent arrayed against it in this proceeding, the public was scarcely represented at all.The battle was not uneven; it was barely joined.

I dissent.