In Re Statement Concerning COMMUNITY
SURVEY SHOWINGS IN CONNECTION WITH RADIO
AND TELEVISION APPLICATIONS
FEDERAL
COMMUNICATIONS COMMISSION
22 F.C.C.2d 421
RELEASE-NUMBER: FCC 70-312
MARCH
26, 1970
JUDGES:
THE COMMISSION,
BY COMMISSIONERS BURCH (CHAIRMAN), ROBERT E. LEE, COX, AND WELLS, WITH
COMMISSIONERS BARTLEY AND JOHNSON DISSENTING AND
ISSUING STATEMENTS, ISSUED THE FOLLOWING PUBLIC NOTICE:
OPINION:
[*421]
In order to conserve expenditure of funds, time, and effort in the
preparation of the community needs and problems survey studies which are required
to be submitted with applications for new standard, FM, and TV authorizations,
and are sometimes required to meet an appropriate issue in a hearing
proceeding, the Commission announces the following policy:
In the case of
hearing proceedings which have been remanded for further consideration of the
sufficiency of the community survey issue (e.g. James Mace, F.C.C. 70-155,
released Feb. 27, 1970), the presiding hearing examiner shall decide whether
the challenged applicant has made a reasonable and good faith effort to satisfy
the survey requirements which existed prior to the release of our decision in
Camden Broadcasting Co., 18 F.C.C. 2d 412. If the examiner is satisfied that an
adequate showing has been made in that regard, he will permit amendment of the
application to comport with whatever standard may finally be announced by the
Commission as the result of its determination of the pending Primer inquiry
proceeding (docket No. 18774). Where
the examiner concludes that the filing of such an amendment is permissible,
however, the preparation, submission and scrutiny of such amendment will be
held in abeyance until the Commission's final determination in respect to
docket No. 18774 has been announced. At
that time, an amendment comporting with the Commission determination in the
inquiry proceeding will be submitted and considered in the hearing.
In respect to
pending proceedings before the hearing examiners which do not involve a remand,
but which do involve a necessity for determination of a community survey issue,
and where the record has not yet been closed, the examiner will stay further
proceedings relative to a determination of that issue only, to await the
announcement of the Commission's determination of the above noted inquiry
proceeding, and the examiner will, following such announcement, permit any
applicant to effect such amendment as may be appropriate to comply with the
Commission's announced determination.
[*422]
In respect to cases involving a community survey issue, where the record
has been closed, but where no initial decision has yet been issued by an
examiner, the examiner will stay the issuance of such initial decision and will
await the final determination of the above noted inquiry proceeding. Similarly, in each case before the Review
Board on exceptions to an initial decision involving a community survey issue,
the Review Board will stay the issuance of its final decision and will await
the final determination of the inquiry proceeding. The record in such cases may be reopened and held open until the
inquiry proceeding has been terminated.
At such time the examiner or the Review Board will entertain an
appropriate motion to amend by any applicant who desires to adduce further
evidence necessary to comport his showing with the Commission's announced
requirements; provided, however, that such applicant can demonstrate that he
has theretofore put in the record a community survey showing which reflects a
good faith and reasonable compliance with such survey requirements prior to the
Commission's decision in Camden, cited above.
Finally, any
persons who are presently preparing new applications for submission to the
Commission for radio or television facilities should, except where required to
meet deadlines or because of the danger of cutoff, refrain from filing such
applications until the Commission has announced its final determination in the
inquiry proceeding, so that they may be enabled to submit applications in full
compliance with the requirements then announced by the Commission. In cases where such delay in filing
applications is not possible, the applicant should make a good faith and
reasonable effort to comply with the standards tentatively announced in the
proposed Primer accompanying our notice of inquiry, and such applicant should
be aware of the necessity for amendment of his application to comply with the
final determination of the Commission in the inquiry proceeding when that
decision is announced.
DISSENTBY: BARTLEY; JOHNSON
DISSENT:
DISSENTING
STATEMENT OF COMMISSIONER ROBERT T. BARTLEY IN WHICH COMMISSIONER NICHOLAS
JOHNSON JOINS
I dissent.
The interim
procedure results in a virtual freeze on all broadcast applications except
renewals.
Also, the
procedure itself may well cause further confusion. There are no guidelines to examiners, the Review Board,
applicants, or their counsel as to what the Commission majority thought were
"survey requirements which existed prior to the release of our decision in
Camden Broadcast Co." or how the majority believes that Camden changed
those requirements.
See my
dissenting statement In re Mace Broadcasting Co., 21 F.C.C. 2d -- (No. 6).
DISSENTING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
I concur in Commissioner
Bartley's characterization of this interim procedure as a virtual freeze over
community surveys. There are a number
of other alternatives open to us which would not block the processing of case
currently in various stages of hearing, or of new applications in preparation
for submission to the Commission/.
[*423]
We could, for example, simply provide that, until the Commission reaches
a conclusion to its inquiry in its pending Primer inquiry proceeding (docket
No. 18774), community ascertainment surveys would be judged by
"pre-Camden" standards. That
would at least be preferable to complete inaction.
I believe the
hue and cry raised by the broadcasting industry over alleged confusion in
ascertainment standards supposedly wrought by the Camden decision is a smoke
screen to cover their attempt to roll back the standards contained in that
decision. I believe a careful reading
of Camden will show that most, if not all, of the requirements it contains were
directly taken from prior Commission decisions. I rather suspect that the broadcasting industry's surprise at
Camden came, not from the principles it contained (for they had been present
for some time), but from the realization that we actually intended to enforce
them.
I dissent to
today's interim procedure.