LEXSEE 31 F

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In Re Application of RADIO STATION WSNT, INC., SANDERSVILLE, GA.

For Renewal of License of Station WSNT, Sandersville, Ga.

Docket No. 19167 File No. BR-3268

FEDERAL COMMUNICATIONS COMMISSION

31 F.C.C.2d 1080

RELEASE-NUMBER: FCC 71-814

October 1, 1971 Released

Adopted August 4, 1971

JUDGES:

BY THE COMMISSION: COMMISSIONERS BURCH, CHAIRMAN; AND BARTLEY CONCURRING AND ISSUING STATEMENTS; COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT (32 F.C.C.2d 479); COMMISSIONER H. REX LEE CONCURRING IN THE RESULT.

OPINION:

[*1080] 1. We have before us for consideration: (1) our Memorandum Opinion and Order, 27 FCC 2d 993, released March 11, 1971, designating the above-captioned application for hearing; (2) a petition for reconsideration filed May 11, 1971, by Radio Station WSNT, Inc.; (3) a petition for leave to amend its renewal application filed May 11, 1971, by WSNT; n1 (4) comments on the petition to amend and petition for reconsideration filed May 27, 1971, by the Broadcast Bureau; (5) comments in support of the petition for reconsideration, notation of lack of objection to filing of amendments to the renewal application, and request for reimbursement of legitimate and prudent expenses filed June 3, 1971, by Richard Turner, individually and on behalf of the Black Youth Club of Sandersville, Georgia, and the Southern Christian Leadership Conference (hereinafter intervenors); (6) reply to comments of Broadcast Bureau and intervenors, filed June 9, 1971, by WSNT; (7) supplement to petition for leave to amend, filed June 9, 1971, by WSNT; (8) comments on item (5), filed June 14, 1971, by the Broadcast Bureau; (9) reply to WSNT's opposition to the intervenors' request for reimbursement of legitimate and prudent expenses, filed June 15, 1971, by intervenors; and (10) reply to item (8), filed June 24, 1971, by intervenors.

n1 WSNT's petition for leave to amend was originally submitted to the Hearing Examiner in this proceeding, but he certified the petition to us for consideration in conjunction with the applicant's petition for reconsideration. FCC 71M-764, released May 13, 1971.

2. The history of this case is set out in detail in our Memorandum Opinion and Order mentioned above; thus only a brief recapitulation of the events leading up to the designation order is necessary here. The intervenors filed a petition to deny the renewal application of WSNT on March 2, 1970, alleging that the station had failed to serve adequately a substantial segment of the black population of Sandersville, Georgia, WSNT's community of license. Thereafter, [*1081] WSNT and the intervenors entered into negotiations attempting to reconcile their differences. At first, the negotiations offered hope for a settlement; but later the negotiations reached an impasse, and the designation order was eventually issued.

3. In essence, the issues to be determined in the hearing are: (a) has the applicant made a meaningful attempt to ascertain the needs and interests of its community of service; (b) has the applicant followed a racially discriminatory policy in its overall programming; (c) has the applicant failed to serve the public interest by suppressing news of local events; (d) has the applicant complied with the Fairness Doctrine; (e) has the applicant afforded significant groups in its service area a reasonable opportunity to use its broadcasting facilities; and (f) would a renewal of the station's license be in the public interest. Subsequent to our designation order, the parties resumed negotiations and ultimately reached an agreement settling their differences. A copy of this agreement has been submitted to us as a proposed amendment of WSNT's renewal application. It is primarily upon this agreement that WSNT bases its petition for reconsideration. n2

n2 Essentially the agreement provides that WSNT: (a) will make its facilities available to blacks; (b) will broadcast news of local boycotts, marches, and demonstrations; (c) will meet monthly with representatives of the black populace; (d) will broadcast a 15 minute weekly discussion regarding community problems between black and white civic leaders; and (e) will maintain blacks on its broadcast staff.

4. WSNT asserts that the provisions of the agreement and its amended survey of community problems should result in a favorable resolution of all of the issues in its favor without a hearing. WSNT's amendment includes a revised survey of community problems to replace the original survey conducted prior to the release of our Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 FCC 2d 650 (1971), as well as the agreement summarized in footnote 2, supra. According to WSNT, these factors have clarified the station's policies in regard to the questions set for hearing and mooted the questions raised by the intervenors' petition to deny. WSNT contends that its past conduct was not racially motivated, but rather that it was the product of what it in good faith believed were its obligations to the entire community of Sandersville. WSNT concludes that the agreement reached between the parties in this case is in the public interest and in accordance with the policy enunciated in KCMC, Inc., 19 FCC 2d 109 (1969), of encouraging negotiations and settlement of disputes at the local level.

5. The intervenors have filed a statement in support of WSNT's requests, urging that WSNT's present showing resolves the questions in this proceeding, assures service in the public interest, and warrants a grant of WSNT's renewal application. The Broadcast Bureau also supports WSNT's position, noting that the intervenors are unlikely to participate in any hearing on these issues in light of their agreement with WSNT and that the Bureau has no independent evidence concerning the issues designated for hearing. The Bureau also agrees that WSNT's policies questioned in this proceeding were not racially motivated, since WSNT did not apply the disputed policies to the intervenors during the earlier portion of its license period and since those policies were not applied to all black citizens' groups even during the more recent period of overt racial unrest in Sandersville. In view of [*1082] the parties' agreement and WSNT's revised community survey, n3 the Bureau concludes that an affirmative finding may now be made that a grant of WSNT's renewal application will be in the public interest.

n3 The Bureau did observe one defect in WSNT's revised community survey. However, WSNT filed a supplement to its proposed amendment on June 9, 1971, which brought the survey into compliance with our requirements by documenting management level interviews with local black leaders.

6. After consideration of the entire record in this proceeding in the light of the provisions of the parties' agreement and WSNT's revised community survey, n4 we are persuaded that a sufficient showing has been made to find that a grant of WSNT's renewal application will serve the public interest. As noted by the Bureau, there is evidence that WSNT broadcast news and public service announcements concerning some of the intervenors' activities prior to the period of overt racial unrest in Sandersville and that it carried news and public service announcements both by and concerning black citizens and groups unrelated to the intervenors' activities even during the more recent period. More importantly, however, the parties' agreement eliminates any misconceptions that WSNT may have had concerning its broadcast responsibilities and clarifies its broadcast policies so as to avoid any future misunderstandings in this area. WSNT's revised community survey also reflects its efforts to be more responsive to the problems of all segments of its community. Under these circumstances, we are convinced that there is no longer any substantial and material question of fact warranting a hearing in this proceeding, that all of the issues may be resolved favorable to WSNT, and that WSNT's renewal application should be granted.

n4 Good cause has been shown for grant of WSNT's petition for leave to amend as required by Section 1.522(b) of our Rules, since the parties were not able to reach an since WSNT's original community survey was prepared prior to the release of the Primer on Ascertainment of Community Problems by Broadcast Applicants, supra.

7. In connection with their support of WSNT's petition for reconsideration, the intervenors request us to direct WSNT to reimburse them for expenses incurred in prosecuting their petition to deny WSNT's application. n5 The intervenors recognize that we have previously refused to approve a reimbursement agreement under similar circumstances in KCMC, Inc., 25 FCC 2d 603 (1970), due to the possibilities of abuse resulting from inflated expenses, the filing of frivolous petitions to deny, and the fact that settlement of the merits of the dispute might be influenced by the ability to receive reimbursement from the licensee. However, the intervenors urge that KCMC is not controlling here, since the agreement concerning WSNT's broadcast policies was reached after designation for hearing whereas the parties' agreement in KCMC was reached before a designation order was issued in that case. The intervenors thus conclude that the policy considerations in KCMC do not apply to this case because: (a) careful scrutiny of expenses would eliminate any inflated items, (b) the act of designating a renewal application for hearing constitutes a finding that the petition to deny was meritorious and was not frivolous, and (c) the question of reimbursement would be beyond the control of the intervenors or the licensee.

n5 As the Bureau points out, the intervenors' request for reimbursement is physically part of their response to WSNT's petition for reconsideration. While no useful purpose would be served by disposing of this particular question on procedural grounds, we agree with the Bureau that the intervenors' action is contrary to the generally accepted practice of not presenting new requests for affirmative relief in responsive pleadings. Moreover, such a procedure is not conducive to the orderly dispatch of the Commission's business.

[*1083] 8. Both WSNT and the Bureau oppose the intervenors' request for reimbursement of their expenses. WSNT contends that the policy set forth in KCMC is sound, that the policy considerations mentioned there are relevant to this case, and that they should be followed here. WSNT claims that a policy of ordering reimbursement of expenses after designation for hearing would remove the incentive for intervenors to negotiate with the licensee before a designation order is issued, since the intervenors would only be allowed to recover their expenses after the case was designated for hearing. WSNT also points out that all prior cases allowing reimbursement of expenses involved voluntary agreements by the parties, rather than a unilateral order imposed on one party for the benefit of another party. The Bureau asserts that the intervenors have not presented any factors which were not considered in deciding KCMC, that the policy announced in KCMC was stated to be of universal applicability, and that, therefore, the intervenors' request for reimbursement of their expenses should not be allowed.

9. In response, the intervenors urge that a rule, requiring licensees to bear the costs of petitioning groups where an agreement is reached after designation for hearing, would provide both parties with an incentive to settle their differences as soon as possible. The intervenors would have an incentive to settle in order to obtain an immediate improvement of service and in order to avoid the risk that the station's license would be renewed without a hearing. On the other hand, without reimbursement of expenses, the intervenors assert that a licensee has no incentive to negotiate before a designation order is adopted since he has nothing to lose, whereas, if expenses are reimbursed after designation for hearing, he would be willing to negotiate even before the case is set for hearing to avoid the possibility of having to reimburse the intervenors' expenses. The intervenors thus conclude that their expenses should be reimbursed so that broadcasters will be encouraged to resolve their disputes with community groups at the local level.

10. While it is true that there are factual differences between this case and KCMC, we do not believe that they are so significant as to warrant application of a different policy here. Indeed, the foremost distinction between the two cases is that the licensee in KCMC voluntarily agreed to reimburse the public intervenors' expenses if we allowed it to do so, whereas there is no agreement providing for reimbursement of the intervenors' expenses in this case. More importantly, however, the factors militating against approval of the reimbursement agreement in KCMC are equally relevant in the present situation. Thus, opportunists might still be encouraged to file petitions to deny in order to recover substantial fees, and unscrupulous parties might allow the settlement of the dispute to be influenced by their ability to obtain reimbursement of their expenses.

11. Although the intervenors contend that their expenses should be reimbursed to induce licensees to conduct good faith negotiations, it is also possible that such a policy would result in some intervenors refusing to participate in meaningful negotiations prior to the time that they could seek reimbursement of their expenses. In view of the usual licensee's fundamental aversion to having his renewal application [*1084] designated for hearing, we are convinced that our statement in KCMC, that lack of reimbursement had not deterred listener groups from filing petitions to deny or licensees from participating in discussions to resolve their differences, is equally applicable to the factual situation in this case. Under these circumstances, we see no reason to modify the principle of general applicability set forth in KCMC that reimbursement will not be allowed in any petition to deny situation without regard to the nature of the intervenor.

12. Moreover, even without regard to the precedent established in KCMC, a separate and independent ground exists for denial of the intervenors' request. We are convinced that, as a matter of policy, it would be inappropriate for this Commission to compel reimbursement of expenses in the absence of a voluntary agreement of the parties containing such a provision.

13. Accordingly, IT IS ORDERED:

(a) That the request for reimbursement filed by the intervenors on June 3, 1971, IS DENIED;

(b) That the petition for leave to amend filed May 11, 1971, by WSNT, Inc. IS GRANTED and the amendments as supplemented by WSNT, Inc. on June 9, 1971, ARE ACCEPTED;

(d) That the application of WSNT, Inc. for renewal of license for Station WSNT, Sandersville, Georgia (File No. BR-3268), IS GRANTED; and

(e) That this proceeding IS TERMINATED.

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

CONCURBY: BURCH; BARTLEY

CONCUR:

CONCURRING STATEMENT OF CHAIRMAN BURCH

I concur in this action on the ground set forth in the second sentence of paragraph 10 and in paragraph 12 of the opinion. I believe that the factor there set forth -- that this is a case where one of the parties to a "consent agreement" does not also agree to reimburse the expenses of the other -- distinguishes this case from KCMC, Inc., 25 FCC 2d 603 (1970) -- a decision (now on appeal) from which I dissented.

CONCURRING STATEMENT OF COMMISSIONER ROBERT T. BARTLEY

I dissented to designating the WSNT renewal for hearing (27 FCC 2d, 993).

I concur in the result here of granting reconsideration of that order, granting the WSNT renewal, and denying the intervenors' request for reimbursement of their expenses.