LEXSEE 26 F

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In Re Application of KAYE BROADCASTERS, INC., FOR RENEWAL OF LICENSE OF STATION KAYE, PUYALLUP, WASH.

Docket No. 18929 File No. BR-2682

FEDERAL COMMUNICATIONS COMMISSION

26 F.C.C.2d 459

RELEASE-NUMBER: FCC 70-1167

November 6, 1970 Released

Adopted October 28, 1970

JUDGES:

BY THE COMMISSION: COMMISSIONER BARTLEY ABSENT; COMMISSIONER JOHNSON CONCURRING AND ISSUING A STATEMENT.

OPINION:

[*459] 1. Now before the Commission for consideration are: (a) a motion for an order specifying the party having the burden of going forward filed by KAYE Broadcasters, Inc. (KAYE), on September 22, 1970; (b) the opposition to the motion filed by the Chief, Broadcast Bureau, on September 29, 1970; (c) the response to the Bureau's opposition, filed by KAYE on October 2, 1970; (d) the opposition to the motion filed by Puget Sound Committee for Good Broadcasting on October 5, 1970; (e) the opposition to the motion filed by the Pacific Northwest Regional Advisory Board of the Anti-Defamation League of B'nai B'rith on October 21, 1970; and (f) an unopposed motion for expedited action filed by KAYE Broadcasters, Inc. on October 7, 1970.

2. On July 22, 1970, the Commission designated for hearing the application for renewal of license for Station KAYE on seven issues, n1 pursuant to its Memorandum Opinion and Order, 25 FCC 2d 96. The designation order did not include any allocation of the burden of going forward with the initial presentation of evidence, but this matter was raised by KAYE before Hearing Examiner Ernest Nash [*460] at a prehearing conference on September 21, 1970. The Hearing Examiner ruled that in the absence of a specific provision in the designation order, this burden rests with the applicant under Section 309(e) of the Communications Act n2 and that, since there was no expression of willingness to assume the burden of going forward with the evidence by the intervenors n3 or the Broadcast Bureau, KAYE has the burden of going forward under all issues. KAYE then filed the instant motion, which requests that the burden of going forward under the first six issues be imposed on the other parties.

n1 The following issues were prescribed:

(1) To determine whether KAYE has complied with the fairness doctrine by affording reasonable opportunity for presentation of contrasting views on controversial issues of public importance, including affirmatively seeking to encourage and implement the presentation of contrasting views.

(2) To determine the adequacy of licensee's policies and procedures to assure compliance with Section 73.123(a) of the Rules and the Fairness Doctrine.

(3) To determine whether Station KAYE has operated in compliance with Section 73.123(a) of the Rules; i.e., whether individuals or groups personally attacked over the facilities of KAYE have been given notification, tape recordings (transcripts or summaries) and opportunity to respond as required by Section 73.123. (footnote omitted).

(4) To determine whether KAYE has sought to discourage residents of KAYE's service area from presenting adverse information to the Commission.

(5) To determine the efforts made by KAYE to ascertain the interests and needs of the area to be served, the adequacy of KAYE's past performance in meeting the needs and interests of its community of license, and the manner in which KAYE proposes to meet such needs and interests in the future.

(6) To determine whether KAYE's communications with the Commission have lacked candor and/or truthfulness.

(7) To determine, in the light of the evidence adduced under issues 1-6, supra, whether the licensee possesses the requisite qualifications to remain a Commission licensee, and whether the public interest would be served by grant of renewal.

n2 In pertinent part, Section 309(e) of the Communications Act, as amended, states as follows: * * * "The burden of proceeding with the introduction of evidence and the burden of proof shall be upon the applicant, except that with respect to any issue presented by a petition to deny or a petition to enlarge the issues, such burdens shall be as determined by the Commission."

n3 Puget Sound Committee for Good Broadcasting filed a petition to deny the renewal application, which was joined in by the Pacific Northwest Regional Advisory Board of the Anti-Defamation League of B'nai B'rith, and both were made parties to this proceeding.

3. In its motion, KAYE contends that the burden of initially going forward should rest with the intervenors as to Issues (1), (3), (4) and (6); that the burden should be allocated to the Broadcast Bureau as to Issue (2); and that the burden of initially presenting evidence under Issue (5) should be placed either on the intervenors or on the Broadcast Bureau. KAYE cites D & E Broadcasting Co., 1 FCC 2d 78, 80 (1965) and Brandywine-Main Line Radio, Inc., FCC 67-99, released January 25, 1967, 9 RR 2d 126, and urges that the Commission's past practices require that the burden of going forward be shifted to the other parties in this proceeding.

4. In an opposition to the motion, the Broadcast Bureau agrees with KAYE that the intervenors should bear the burden of initially going forward under Issues (1), (3), (4) and (6), because inquiry in these areas was prescribed as a result of charges of misconduct by KAYE made by intervenors in a petition to deny, citing D & E Broadcasting Co., supra. The Bureau contends, however, that the burden of going forward properly rests with KAYE under Issues (2) and (5): (a) because the matters sought to be adduced under Issue (2), regarding KAYE's policies and compliance with the personal attack and Fairness Doctrine requirements, are peculiarly within the knowledge of the applicant and concern KAYE's use of broadcast facilities; and (b) because inquiry under Issue (5) does not involve a charge of misconduct and was included on the basis of deficiencies in the material supplied in the applicant's renewal application as to ascertainment and satisfaction of community needs. The intervenors in their pleadings urge that the burden of proceeding with the evidence can be and has been properly placed upon the applicant and that it should remain with the applicant. n4 The intervenors charge that the issues involve the applicant's past broadcast practices and that the relevant information is peculiarly within the knowledge of the applicant. However, the intervenors recognize "... that Issues (4) and (6) are not matters on which an applicant is generally obliged to [*461] make a showing" and that "[initial] presentation of evidence on these matters might lie with any intervenor." n5

n4 Although the intervenors cite Office of Communications of the United Church of Christ, et al. v. Federal Communications Commission, 425 F. 2d 543, 16 RR 2d 2095 (1969), in support of this contention, the Court's Decision concerns the ultimate burden of proof and thus is inapposite to the instant question concerning the burden of going forward with the evidence. See footnote 6 of the Court's Decision.

n5 The Bureau and the intervenors have also posed procedural objections to KAYE's request. Nonetheless, KAYE's motion for expedited action points out that the hearing is scheduled to commence within the next month and that this matter must be resolved expeditiously so that the parties may prepare for the hearing. In view of the importance of this matter in the course of the hearing and in view of the imminence of the hearing date, we are persuaded that the public interest will be best served by granting KAYE's motion for expedited action and disposing of the merits of this matter with the least possible delay.

5. Since the designation order failed to discuss the allocation of the burden of proceeding with the introduction of evidence, we shall now revise that order so that the hearing may proceed in an orderly and efficient manner. In D & E Broadcasting, supra, and succeeding cases we have held that the concepts of basic fairness require the party charging misconduct to proceed with the introduction of evidence under the issues added as a result of such allegations. The intervenors suggest that this policy might require them to proceed with the introduction of evidence for Issues (4) and (6), and we believe that this would be appropriate, since those issues involve charges of serious misconduct founded upon the intervenors' petition to deny. By the same token, Issues (1) and (3) are also based on charges presented in the intervenors' petition to deny, and, for this reason, we agree with the Bureau that the intervenors should be required to make an initial presentation of the evidence on these issues.

6. However, Issue (5) was founded upon deficiencies in KAYE's renewal application, and KAYE has been informed of the matters to be considered under that issue by the Broadcast Bureau's Bill of Particulars, dated August 31, 1970. Since an applicant is ordinarily required to proceed with the introduction of evidence under such an issue, and since no reason has been shown to depart from the usual practice, we are convinced that KAYE will not be prejudiced by requiring it to proceed with the introduction of evidence under Issue (5). Finally, Issue (2) concerns the adequacy of KAYE's policies and procedures for compliance with Section 73.123(a) and the Fairness Doctrine. The burden of proceeding under this issue could be imposed on the intervenors, because they claim that KAYE's efforts are inadequate. Nonetheless, we are persuaded that the nature of the issue is such that no unfairness will result from requiring KAYE to make an initial showing of its policies and procedures as a foundation for any showing that the other parties might make by way of rebuttal. Of course, KAYE would be entitled to make a further, responsive showing on this issue if any adverse evidence is submitted.

7. ACCORDINGLY, IT IS ORDERED:

(a) That the motion for expedited action filed by KAYE Broadcasters, Inc. on October 7, 1970, IS GRANTED;

(b) That the motion for order specifying party having burden of going forward filed by KAYE Broadcasters, Inc. on September 22, 1970, IS GRANTED to the extent indicated herein and IS DENIED in all other respects; and

[*462] 12. IT IS FURTHER ORDERED, That, in accordance with Section 309(e) of the Act, the burden of going forward with evidence in the first instance as to Issues (1), (3), (4) and (6) shall be on the Puget Sound Committee for Good Broadcasting and the Pacific Northwest Regional Advisory Board of the Anti-Defamation League of B'nai B'rith, with the Broadcast Bureau following with evidence in its possession and the applicant submitting its evidence last; the burden of going forward with evidence in the first instance as to Issues (2) and (5) shall be on the applicant; and the applicant has the ultimate burden of establishing that it possesses the requisite qualifications to be a licensee and that the public interest would be served by a grant of its renewal application.

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

CONCURBY: JOHNSON

CONCUR:

CONCURRING OPINION OF COMMISSIONER NICHOLAS JOHNSON

KAYE Procedures

[In Re Application of KAYE Broadcasters, Inc.]

Although I concur in the Commission's Memorandum Opinion and Order, I want to emphasize several points which were raised and discussed fully during our consideration of this matter.

Initially I had the strongest reservations with respect to the following sentence in the Opinion: "... Issues (1) and (3) are also based on charges presented in the intervenors' petition to deny, and, for this reason, we agree with the Bureau that the intervenors should be required to make an initial presentation of the evidence on these issues." (Paragraph 5) Issues (1) and (3) are as follows:

(1) To determine whether KAYE had complied with the fairness doctrine by affording reasonable opportunity for presentation of contrasting views on controversial issues of public importance, including affirmatively seeking to encourage and implement the presentation of contrasting views.

(3) To determine whether Station KAYE has operated in compliance with Section 73.123(a) -- i.e., whether individuals or groups personally attacked over the facilities of KAYE have been given notification, tape recordings and opportunity to respond.

Section 309(e) of the Communications Act, as amended, states in pertinent part:

The burden of proceeding with the introduction of evidence and the burden of proof shall be upon the applicant, except that with respect to any issue presented by a petition to deny * * *, such burdens shall be as determined by the Commission.

Thus, there is clearly no requirement that, with respect to charges raised in a petition to deny, the burden of going forward be placed on the intervenor, and I see no reason to do so unless some strong fairness requirement, cf. D & E Broadcasting Co., 1 F.C.C. 2d 78, 80 [*463] (1965), dictates otherwise. D & E dealt with "a charge of serious misconduct" against an individual, and I do not consider it as controlling authority in this proceeding.

Nevertheless, I am persuaded on the basis of our discussion of this matter that no great hardship will be imposed on the intervenors, since the Commission based its action on the following assumptions: (1) the burden of proof, as opposed to the burden of going forward, clearly remains on the renewal applicant; (2) as soon as the intervenors introduce any evidence to support any of their allegations regarding Issues (1) and (3) with respect to the applicant's failure to comply, the burden of going forward shifts to the applicant; (3) the applicant's ultimate burden is an affirmative one, i.e., it must establish its compliance with the Communications Act and the Commission's rules and policies pursuant thereto; and (4) the applicant is, as a matter of law, charged with knowledge as to the ultimate issues of compliance.