In Re
Application of SCRIPPS-HOWARD BROADCASTING Co. For Renewal of License of
Station WMC-TV, Memphis,Tenn.
File
No. BRCT-54
FEDERAL
COMMUNICATIONS COMMISSION
26 F.C.C.2d 824
RELEASE-NUMBER: FCC 70-1217
December
16, 1970 Released
Adopted
November 10, 1970
JUDGES:
BY THE
COMMISSION: CHAIRMAN BURCH CONCURRING IN THE RESULT. COMMISSIONER BARTLEY
ABSENT. COMMISSIONER
JOHNSON CONCURRING AND ISSUING A STATEMENT.
OPINION:
[*824]
1. Scripps-Howard Broadcasting
Company timely filed its application for renewal of license of Station WMC-TV,
Memphis, Tennessee on May 4, 1970.
After the Commission had denied a request for an extension of time to
file a petition to deny the application ( WSM, Inc., et al., 24 FCC 2d 561),
Allen Black, Jr., et al., submitted a pleading entitled "Petition to
Deny" against the WMC-TV renewal application on July 13, 1970. The licensee submitted its opposition,
"Motion to Dismiss or Deny" on July 28, 1970, and the petitioner
submitted its "Reply to Opposition" on September 2, 1970. Presently the Commission has for
consideration a "Motion to Strike" certain portions of the Reply to
the Opposition submitted by the licensee on November 4, 1970. The licensee asserts that the petitioner
"... makes new allegations, expands on previous arguments, and introduces
a number of inaccurate statements" in the reply. The licensee requests that the Commission either strike the
indicated portions of the reply or, in the alternative, accept the instant
motion as an additional pleading under Section 1.45(c) of the Commission's
Rules in response to the new matters raised by the petitioners in the reply.
2. Section 1.587 of the Commission's Rules
provides members of the public with an opportunity to bring to the attention of
the Commission the deficiencies of prior licensee operations and of the
proposals for future operations. Under
Section 1.580 of the Rules, a party in interest may bring to the attention of
the Commission specific allegations of fact sufficient to show that the
application under consideration should not be granted. An additional purpose of the rules is to insure
the orderly processing of applications for renewal of licenses by limiting the
number of pleadings and delineating the purpose of each of the three
pleadings. It is axiomatic that a
petition to deny, the initial pleading, causes a renewal application to be
placed on deferred status, until the Commission, pursuant to the requirements
of Section 309 of the Communications Act (47 U.S.C. 309), has had an
opportunity to fully evaluate the matter and rule on [*825] the merits of the
petition. The reply pleading submitted
by the petitioner is limited "... to matters raised in the
opposition" by Section 1.45(b) of the Commission's Rules. The Commission does not condone the use of
any pleading for other than the designated purpose nor does it condone the submission
of additional pleadings which would thwart the orderly administration of the
Commission's processes. However, under
the present circumstances and since the licensee has answered the new
allegations, the Commission is denying the Motion to Strike. In order to avoid any further pleadings in
this matter, the Commission is striking the new material that the licensee has
submitted in the Motion to Strike.
3. In view of the foregoing, IT IS ORDERED,
That, the motion to strike is hereby DENIED; however, the Commission will
consider the parts of the motion that are in direct response to any new matters
that may have been raised by the petitioners in their reply. Any material raised in this motion which is
not in direct response to new material offered by the petitioner in the Reply
will not be considered by the Commission.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE,
Secretary.
CONCUR:
CONCURRING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
The Commission
purports to rule today that "Any material raised in this motion, which is
not in direct response to new material offered by the petitioners in the Reply,
will not be considered by the Commission." I am concurring in this action
reluctantly and only because I believe that it will have no effect on the
rights of the parties in view of the unimportance of pleadings in modern
procedure. Professor Davis has written:
The most important characteristic of
pleadings in the administrative process is their unimportance. And experience shows that unimportance of
pleadings is a virtue. In the judicial
system the long-term movement has been from the common-law system of pleading
to formulate issues, to the early code ideal of stating all material facts, to
the view now prevailing in the federal courts that fair notice is the
objective. Davis 1 Administrative Law
Treatise, § 8.04, p. 523 (1958)
(footnote omitted).
We must not
forget Professor Davis' admonition that the important question is not the
adequacy of the original notice or pleading but "the fairness of the whole
procedure," and that fairness basically depends on the opportunity to
prepare.
Pleading is only
one of many ways of providing opportunity to prepare. Deficiencies in a pleading may be cured by informal
communication, by formal amendment, by a bill of particulars, by pre-hearing
conferences, or by ample continuances at the hearing. Id. § 8.04, p. 525.
What is involved
here is the attempt by an overworked staff to lighten its burden by reducing
the number of papers it has to consider; although this goal is understandable
and even laudable, I believe that it cannot be achieved by returning to the
ancient concept of rigid pleading requirements. As the United States Court of Appeals for the District of
Columbia said twenty years ago:
[*826]
The whole thrust of modern pleading is towards fulfillment of a
notice-giving function and away from the rigid formalism of the common-law. It is now generally accepted that there may
be no subsequent challenge of issues actually litigated, if there has been
actual notice and adequate opportunity to cure surprise. Kuhn v. C.A.B., 87 U.S. App. D.C. 130, 183
F. 2d 839, 841-42 (1950) (footnotes omitted)
In the hearing
process, as in rule-making, this agency is (or should be) engaged in the search
for truth within the broad bounds of due process. So long as surprise is avoided, we cannot ignore facts which tend
to bring us closer to the truth. In
those rare cases where a litigant intentionally seeks to abuse the hearing
process, there is ample inherent power to issue protective orders.
I am troubled in
particular by the following language in the Commission's opinion:
An additional purpose of the rules
is to insure the orderly processing of applications for renewal of licenses by
limiting the number of pleadings and delineating the purpose of each of the
three pleadings... The Commission does
not condone the use of any pleading for other than the designated purpose nor
does it condone the submission of additional pleadings which would thwart the
orderly administration of the Commission's processes.
In the context
of the action we take today, e.g., the threat that the Commission will
disregard the "new material" contained in petitioner's Reply, this
language smacks of a rigidity which is inconsistent with modern concepts of
procedure and inconsistent with our obligation "to be informed as
accurately as possible by reliable facts" relevant to the merits of issues
before us. The Citizens Committee v.
FCC, U.S. App. D.C. ,
F.2d (October 30, 1970) slip
opinion, p. 9. And I frankly do not
believe that this Commission would ignore information, whether "new
material" or not, which was relevant to our obligation to protect
"the public interest."
Finally, I want
to emphasize that the pleading in question is the Reply of the licensee-renewal
applicant; our action has nothing to do with Section 1.587 of our rules, which
is referred to, somewhat ambiguously, in the Commission's opinion, dealing with
procedure by which "any person may file informal objections" to the
grant of a renewal. That section
specifically states: "The limitation on pleadings and time for filing
pleadings provided for in § 1.45 shall
not be applicable to any objections duly filed under this section." That
Section is, I repeat, not affected by today's action.