In Re Application of: LAMAR LIFE BROADCASTING CO. (WLBT (TV)), JACKSON, MISS. For Renewal of License
File No. BRCT-326
FEDERAL
COMMUNICATIONS COMMISSION
21
F.C.C.2d 277; 18
Rad. Reg. 2d (P & F) 274
RELEASE-NUMBER: FCC 70-125
Adopted
January 29, 1970
ACTION:
MEMORANDUM OPINION AND ORDER
JUDGES:
BY THE
COMMISSION: COMMISSIONER JOHNSON CONCURRING IN PART
AND DISSENTING IN PART AND ISSUING A STATEMENT; COMMISSIONER WELLS ABSENT.
OPINION:
[*277]
1. In Lamar Life Broadcasting
Company, 20 F.C.C. 2d 635, adopted December 3, 1969, we vacated the grant of the
application (BRCT-326) of Lamar Life Broadcasting Co. (Lamar), for renewal of
license of television broadcast station WLBT, channel 3, Jackson, Miss.;
requested a new application (form 301) from Lamar; and invited competing
applications for the channel. Now under
consideration are: a petition to impound the profits of station WLBT, filed
December 10, 1969, by Civic Communications Corp. (Civic), applicant (BPCT-4305)
for a new commercial television broadcast station to operate on channel 3,
Jackson, Miss.; an opposition filed December 23, 1969, by Lamar; related
pleadings; n1 a petition seeking reconsideration
of our action of December 3, 1969, filed December 24, 1969, by Lamar; an
opposition filed January 6, 1970, by Civic; and related pleadings. n2
n1 The pleadings relating to the
petition to impound profits are: a reply filed Jan. 5, 1970, by Civic; a motion
to strike the reply filed Jan. 8, 1970, by Lamar; a reply to the motion to
strike filed Jan. 12, 1970, by Civic; and a response to that reply filed Jan.
16, 1970, by Lamar. On our own motion,
we accept Civic's reply, which was filed 3 days late.
n2 The pleadings relating to the
petition for reconsideration are: a motion to strike the opposition and a reply
to the opposition filed Jan. 8, 1970, by Lamar; a reply to the motion to strike
filed Jan. 12, 1970; and a response to that reply filed Jan. 16, 1970, by
Lamar. On our own motion, we accept
Civic's opposition, which was filed 1 day late.
2. A brief review will aid in the understanding
of the present pleadings. In Office of
Communication of the United Church of Christ et al. v. Federal Communications
Commission, Case No. 19,409, decided June 20, 1969, the U.S. Court of Appeals
for the District of Columbia Circuit reversed and remanded the Commission's
grant of Lamar's application for renewal of license of station WLBT. The Court stated:
* * * (The) grant of a license must
be vacated forthwith and the Commission is directed to invite applications to
be filed for the license. We do
refrain, however, from holding that the licensee be declared disqualified from
filing a new application * * * The Commission is directed to consider a plan
for interim operation pending completion of its hearings; if it finds it in the
public interest to permit the present licensee to carry on interim operations
that alternative is available.
[*278] The Commission is free to
consider whether net earnings of the licensee should be impounded by the
Commission pending final disposition of this license application. (Slip Opinion, p. 13, footnote omitted.)
The Commission subsequently filed a petition for
rehearing or clarification and suggestion for rehearing en banc. In that petition the Commission contended
that the Court's mandate was a departure from the statutory scheme required by
section 307(d) of the Communications Act of 1934, as amended, n3 and section 558(c) of the Administrative Procedure
Act. n4 In view of the language of those statutes, the Commission urged that
the Court:
n3 Section 307(d) provides in part;
"Pending any hearing and final decision on such an application (for
renewal of license) and the disposition of any petition for rehearing pursuant
to sec. 405, the Commission shall continue such license in effect."
n4 Section 558(c) provides in part;
"When the licensee has made timely and sufficient application for a
renewal or a new license in accordance with agency rules, a license with
reference to an activity of a continuing nature does not expire until the
application has been finally determined by the agency."
* * * clarify or modify its decision
to provide (1) that the Commission set aside its grant of the WLBT renewal and
reconsider the application and the record under an allocation of the burden of
proof that is in accordance with the Court's opinion, and (2) depending on the
outcome of (1) above, that in the proceeding very shortly to be held where new
applicants for the channel are to be considered, WLBT may file a competing
application in the form of a request for renewal of its authorization or, if it
is found unqualified to receive a renewal of its present authorization, that it
is barred from further consideration.
(Commission Brief, pp. 8-9.)
3. The Court denied rehearing in a per curiam
decision dated September 5, 1969. Two
judges issued a statement with that decision that said:
The Commission points to the
provisions of 47 U.S.C. section 307(d) to the effect that, pending final
disposition of a renewal application, the Commission "shall continue such
license in effect." It says that this means that the licensee seeking
renewal must be regarded as having continuing authority until its application
has been finally disposed of adversely to it -- and this last, so it is said,
only the Commission can do. It is
doubtful if Congress intended that a licensee should be able to remain in
possession indefinitely merely because the Commission proves unable or
unwilling to conduct proceedings which will survive judicial scrutiny. A licensee holding over on any such basis
is, at best, a licensee in name only, and it is presumably in such light that
the licensee here involved will take its place among competing applicants. (Slip Opinion on rehearing, p. 3.)
Accordingly, pursuant to section 402(h) of the
Communications Act of 1934, as amended, n5
we issued our order of December 3, 1969, of which reconsideration is now
sought, and which gave rise to the petition to inpound profits.
n5 Section 402(h) provides in part;
"In the event that the court shall render a decision reversing the order of
the Commission, it shall remand the case to the Commission to carry out the
judgment of the court and it shall be the duty of the Commission, in the
absence of the proceedings to review such judgment, to forthwith give effect
thereto * * *"
4. In support of its petition for
reconsideration, Lamar states that our decision of December 3, 1969, takes a
position contrary both to our position before the Court when we sought
rehearing and to prior Commission decisions; that by authorizing Lamar to
operate station WLBT temporarily, the Commission has unlawfully terminated
Lamar's right to operate the station until its renewal application is denied;
that the Commission has, in effect, unlawfully denied Lamar's pending renewal
application, contrary to section 307(d) of the Communications [*279]
Act of 1934, as amended, section 558(c) of the Administrative Procedure
Act, section 1.62(a)(1) of the Commission's rules, and the decision of the
Court which recognized Lamar's holdover rights as a licensee, albeit a licensee
in name only; and that if the Commission turns over operation of station WLBT
to an interim operator other than Lamar and deprives Lamar of the profits of
that operation, it has been deprived of property without due process of law,
contrary to the Fifth Amendment to the Constitution. The thrust of Civic's opposition to the petition for
reconsideration is that the Commission's order is within the mandate of the
Court and that Lamar's objections are not, therefore, attributable to the
Commission, but to the Court.
5. Little discussion is needed with respect to
Lamar's argument based on our petition for rehearing to the Court. The Court denied rehearing and, in effect,
rejected our position. We intend,
therefore, in accordance with section 402(h) of the Act, to follow scrupulously
the Court's decision. The Court stated
Lamar may file a new application and further directed that in the hearing to be
held, Lamar is to be given no preferential treatment as an existing licensee
but rather take its place among competing applicants as at best a licensee in
name only. In order to assure that all
applicants compete on as even terms as possible, we directed that Lamar file an
application for a new authorization (form 301), rather than amend its pending
renewal application (form 303). n6 In this manner, for the purposes of the hearing, all
applicants will be on the same footing.
We further stated that while the past record of Lamar, favorable and
unfavorable, would be relevant, the Hearst Radio principle would not be applied
to this hearing. See also our policy
statement just issued, F.C.C. 70-62, p. 8.
The Court further stated that, "The Commission is directed to
consider a plan for interim operation pending completion of its hearings * *
*" and specifically listed as one alternative available to the Commission
permitting Lamar to carry on interim operations. (Slip opinion, p. 13.) This leads us to the conclusion that under
the mandate of the Court we have authority to consider various alternatives,
and to authorize an interim operator other than Lamar if we find that such an
alternative would serve the public interest.
The Court finally stated, "The Commission is free to consider
whether net earnings of the licensee should be impounded by the Commission pending
final disposition of this license application." (Ibid.) This plainly
indicates that we have the authority under the Court's mandate to impound net
earnings and again indicates authority to consider alternatives in this
respect, as might serve the public interest.
Since we are of the view that our December 3, 1969, decision is within
the mandate of the Court, and since we believe that Lamar [*280]
has not alleged anything to warrant a different result, we conclude that
reconsideration must be denied.
n6 We wish to stress that it really
makes no difference whether Lamar's renewal application (303) were to be
amended and then treated as, in effect a new application vis-a-vis the
competing applicants, or whether the procedure we have specified (i.e., a new
application -- form 301) is followed.
The substance is the same. That
being the case, we thought it desirable for the form to reflect the substance. But in any event, the Court's direction of
how Lamar is to take its place in the new proceeding is clear and must be
observed. That alone is the critical
matter -- not the particular manner of its implementation.
6. In support of its petition to impound
profits, Civic states that there may be a long delay before an interim
operation can begin broadcasting; that the Court stated that Lamar is "a
licensee in name only" and is to compete for the channel "on even
terms as nearly may be"; that permitting Lamar to retain profits is
inconsistent with the Court's directive in that Lamar has the status of a licensee
with all the economic benefits that flow from that status; that Lamar will not
be on even terms since it will have a decided financial advantage over other
applicants in that the profits can be used to prosecute its application; and
that a later disposition of profits is of little value of Civic and any other
applicants that may file since Lamar would already have gained a financial
advantage. In opposition, in addition
to questioning the Commission's authority to impound profits, Lamar contends
that Civic's arguments as to a financial advantage that would allegedly inure
to Lamar are without merit.
7. We fail to see how any significant
disadvantage will accrue to Civic or any other applicant, or any corresponding advantage
inure to Lamar, by permitting it to retain profits during this short prehearing
period. We do not anticipate the delay
in reaching this matter hypothesized by Civic.
As we stated on our order of December 3, 1969, we will make a
determination in this regard when we dispose of the question as to an interim
authorization, not, as suggested by Civic, when the interim operator begins
broadcasting. We see no prejudice
resulting from our action. Moreover, by
delaying a decision as to this question until after the cut-off date for filing
competing applications has passed, we shall have the benefit of being able to
view all competing applications, including those for interim authorizations,
and suggestions for disposition of profits.
Since we believe our action to be within the mandate of the court, we
conclude that the petition to impound profits must be denied.
8. Accordingly, It is ordered, That the
petition for reconsideration filed December 24, 1969, by Lamar Life
Broadcasting Co., Is denied.
9. It is further ordered, that the petition to
impound profits filed December 10, 1969, by Civic Communications Corp., Is
denied.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE,
Secretary.
DISSENTBY: JOHNSON (IN PART)
DISSENT:
STATEMENT OF
COMMISSIONER NICHOLAS JOHNSON, CONCURRING IN PART, DISSENTING IN PART.
WLBT Hearing
(In Re
Application of Lamar Life Broadcasting Co., For Renewal of License)
I concur in the
Commission majority's decision denying reconsideration of our action, 20 F.C.C.
2d 635 (1969), in which we vacated our prior grant of the application of Lamar
Life Broadcasting Co. for renewal of the license to operate WLBT (TV), Jackson,
Miss.; Requested a new application be filed by Lamar Life; and invited new [*281]
applicants to file for the vacant channel. I find no new facts or arguments to change my opinion at the time
we issued our original decision.
I dissent,
however, to our denial of the petition of Civic Communications Corp. to impound
the profits of the station during the period preceding the establishment of an
interim operation. I realize that Lamar
Life is being allowed to run the station only until all the parties have had a
chance to file their applications for the channel and their suggestions for an
interim operation. Hopefully, the
Commission will issue a decision soon on the operation of the station pending
the outcome of the hearing. In the
meantime, I would not allow the profits from the station to go to Lamar
Life. It is not only unfair to prefer
Lamar Life over the other applications who have filed on an equal basis with
Lamar Life; it is also beneficial to Lamar Life to have a steady source of
income with which to fight the actions of the other applicants. Pending resolution of the issue of who will
run WLBT during the hearing period, I would allow Lamar Life to remain as the
operator, but I would impound the profits from this temporary operation.