In the Matter of THE RENEWAL OF THE
LICENSE OF STATION KRAB-FM, SEATTLE, WASH.
File No. BRH-1430
FEDERAL COMMUNICATIONS COMMISSION
24 F.C.C.2d 266
RELEASE-NUMBER: FCC 70-665
July
7, 1970 Released
Adopted
June 24, 1970
JUDGES:
BY THE
COMMISSION: COMMISSIONER BARTLEY DISSENTING; COMMISSIONER COX NOT
PARTICIPATING; COMMISSIONER JOHNSON DISSENTING AND
ISSUING A STATEMENT.
OPINION:
[*266] 1. The Commission has
considered the Petition for Reconsideration, filed on March 20, 1970, by the
Jack Straw Memorial Foundation, licensee of station KRAB-FM, Seattle, Washington,
seeking reconsideration of the short-term renewal granted KRAB-FM by Commission
action of January 21, 1970 (21 FCC 2d 833). We remain of the view that in all
the circumstances, it would be appropriate to review the operation of this
station at an early date to determine whether it is acting effectively to
discharge its own policies. We have
acted here, on this issue of licensee responsibility, based on the particular
facts of the case and in order to make clear the importance of licensee
responsibility to the industry generally.
We stress that this is the issue, and there is no intent or aim to take
any of the improper "chilling" actions claimed by petitioner. See Notice of Apparent Liability issued to
WUHY-FM (FCC 70-346, released April 3, 1970).
2. We note, however, that there are substantial
issues of fact in the circumstances of this case. Therefore, [**2] if petitioner wishes, we shall afford it a
hearing on these facts and thus on the ultimate question whether a short-term
renewal is called for. We recognize the
difficulty in completing the hearing process prior to the filing of the
application for a full renewal (in November 1970). However, we believe that it is the only appropriate way to
proceed in the circumstances. The
statutory scheme permits short-term renewals but at the same time, [*267]
hearing is appropriate before a sanction is imposed in a situation
involving substantial issues of fact (other than in the forfeiture situation
where there can be a trial de novo before the court). Accordingly, we offer the hearing and of course on an expedited
basis. Petitioner shall reply in ten
days whether a hearing is requested; if not, the petition for reconsideration
shall be deemed denied.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE,
Secretary.
DISSENT:
DISSENTING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
On January 21,
1970, the Commission (Commissioner Cox and I dissenting) issued KRAB-FM a
short-term, one-year renewal as a penalty for allegedly violating its own
policies. Jack Straw Memorial
Foundation [KRAB-FM], 21 F.C.C. 2d
[**3] 833, 18 P & F Radio
Reg. 2d 414 (1970). KRAB-FM has petitioned for reconsideration, asking us to
grant it a full-term renewal. The
Columbia Broadcasting System (CBS) has filed an "amicus" petition in
support of KRAB-FM's petition, also asking that we grant KRAB-FM a full-term
renewal. The Commission has denied both
petitions. I adhere to the reasons
stated in my original opinion, see Jack Straw Memorial Foundation, supra, 21 F.C.C.
2d at 841; see also In re WUHY-FM (Phila., Pa.), FCC 70-346, released April 3,
1970 (Notice of Apparent Liability), and accordingly dissent.
I think it
significant that the majority has not addressed any of the arguments advanced
in KRAB-FM's Petition for Reconsideration, nor have they attempted even to
acknowledge the illuminating and cogent reasoning advanced by CBS. I believe this avoidance speaks for
itself. The majority clings to the
"escape clause" unfortunately used so often by those who are unable
to justify their exercise of arbitrary power in intellectual terms: "When
unable to reply, do not reply." The majority's silence is commendation
enough for the efforts of all petitioners.
I have often urged larger broadcasters to fight for First [**4] Amendment interests, both before this
Commission and in the courts, see e.g., Columbia Broadcasting System (WBBM-TV),
18 F.C.C. 2d 124, 142, 155-56 (1969) (dissenting opinion); United Federation of
Teachers [WBAI-FM], 17 F.C.C. 2d 204, 210, 218-19 (1969) (separate opinion),
and therefore commend CBS and its counsel for its able and persuasive
pleading. Important battles are often
fought in small and seemingly insignificant arenas. Yet the freedoms of speech and the press will be preserved in
this country only by constant vigilance, by
[*268] the people and the media
alike. Perhaps other broadcasters will
realize how importantly their own interests are bound up in this and similar
cases, and act with equal courage should this case be taken up on appeal.
As KRAB-FM and
CBS point out, the Commission has not even attempted to argue that KRAB-FM has
violated any federal statute or Commission rule -- such as 18 U.S.C. 1464,
which prohibits the broadcast of "obscene, profane or indecent"
language. Why? I can only assume that the majority is as
aware as everyone else -- including the U.S. Department of Justice -- that no
legal case for violation of such a statute exists. Apparently undaunted,
[**5] however, by any felt need
to operate within a framework of law, the majority persists in meting out
punishments nevertheless -- apparently espousing the maxim that "where
there's a will, there's a way." In a triumph of will over law, that
"way" is found in punishing a licensee, not for a violation of law,
but for an alleged violation of internal station policy. What the majority holds is that if licensees
adopt policies which are "stricter" than existing law, then we will
enforce those policies as if they were law.
Not only is this a blatantly improper delegation of legal authority; it
clearly constitutes illegal "state action" under all the obvious
tests See, e.g., Barrows v. Jackson, 346 U.S. 249 (1953); Shelly v. Kraemer,
334 U.S. 1 (1948). This Commission can no more enforce a rule adopted by a
licensee in violation of the First Amendment that it can enact one. I also find the majority's internal logic
somewhat puzzling. The licensee is
punished for an alleged violation of its own internal policy. Clearly, however, if the station had never
adopted such a policy, the Commission would have had no reason for a sanction
of any kind. Is the Commission
suggesting that stations [**6] not
adopt policies at all? How would we
treat alleged violations of "unwritten" policies, established through
patterns of operation? Must a station
now act at its peril in deviating from even unwritten policies in the future,
even if it wishes to change its policy; or must that station formally
"amend" its policies before broadcast? Would the majority's collective mind be eased had KRAB-FM
rescinded its policy a few minutes before broadcast? And, if so, would the majority entertain an argument that the
broadcast of the program in itself constituted a recession-in-fact of that
policy? As CBS points out, if Mr. Milam
had not acted promptly to take the program off the air, the majority would have
difficulty finding a contrary to the station's policy. Is the lesson therefore, that it is better
to leave material on the air and later argue it was consistent with the
station's internal policy? The point is simply that licensees are left with no
guidelines at all in this important area,
[*269] and this confusion can
only "chill" any attempts to present controversial programming.
KRAB-FM's policy
eschews "obscenity, obscurantism sensationalism, or simple
boorishness." The broadcast was clearly [**7] not obscene, and the majority has not undertaken to prove that it
was -- nor even that it was obscurantist, sensational, or boorish, and for
obvious reasons. I imagine the courts
would make short work of any Commission attempt to punish a licensee for
"boorish" programming, a standard that might easily eliminate over
90% of most commercial broadcasts.
Again, the Commission's action seems to indicate that a licensee is
better off with no policies, lest he be penalized for less than strict
adherence -- even though others who have set no goals for themselves could
broadcast the same material without penalty.
The critical
issue here is the probable chilling effect of the majority's action on
licensees who wish to present experimental, innovative or controversial
programming. The majority attempts to
alleviate such fears by stressing that the only issue involved is
"licensee responsibility," and that "there is no intent to aim
or take any of the improper 'chilling' actions claimed by petitioner." Yet
actions speak louder than words, and the confusion spread by the majority's
inept handiwork will do more to deter timid broadcasters from even feeble
attempts at experimentation and innovation [**8] than the majority's false reassurances can hope to overcome. Supreme Court Justice Brennan, dissenting in
Walker v. City of Birmingham, 388 U.S. 307, 344-45 (1967), explained that to
give important speech freedoms "the necessary 'breathing space to
survive,' * * * the Court has * * * molded both substantive rights and procedural
remedies in the face of varied conflicting interest to conform to our
overriding duty to insulate all individuals from the 'chilling effect' upon
exercise of First Amendment freedoms generated by vagueness, overbreadth and
unbridled discretion to limit their exercise." The Commission majority
refuses to heed or even listen. Acting
beyond the restraint of law, it has "unbridled" whatever
"discretion" it may have remaining and has let loose a doctrine which
seems infinite in its capacity for vagueness and overbreadth.
The seeds
planted by the majority in its January 21, 1970 order have already begun to
bear fruit. One announcer was recently
fired from a Washington, D.C. station in part because she broadcast a satirical
recording containing the word "masturbation." See Quicksilver Times,
April 3-13, 1970, p. 5. Did it violate
the station's internal policies?
[**9] Who knows. Would it have violated KRAB-FM's? Who
knows. And when in doubt, too many
licensees react in typical fashion: cancel the
[*270] show, fire the announcer,
and perhaps the FCC will be forgiving.
This is the stuff of oppression.
This Commission should have no part of it.