In the Matter of Comment by PLAINS ELECTRIC GENERATION AND
TRANSMISSION COOPERATIVE, INC.
Concerning Possible Interference by Centaur Broadcasting,
Inc., KMAP-FM, Albuquerque, N. Mex.
FEDERAL
COMMUNICATIONS COMMISSION
32 F.C.C.2d 479
RELEASE-NUMBER: FCC 71-1156
NOVEMBER 10, 1971
OPINION:
[*479] GENTLEMEN: This
is in reference to your letter of June 2, 1971, in which you comment upon the
question of possible electromagnetic interference in the Sandia Crest area near
Albuquerque, New Mexico, that may be created by the operation of station
KMAP-FM.
Your comments fail to include
"relevant technical data and an engineering analysis establishing and
evaluating the proximity interference" you anticipate will be created by
the operation of station KMAP-FM, as required by section 1.70(c) of the
Commission's rules. The Commission has no basis, therefore, for finding
that interference will, in fact, be caused by the station, In addition, the
permittee of the station, Centaur Broadcasting, Inc., states that:
* * * it is prepared to take any reasonable measures
required to "eliminate or minimize the expected interference" which
can be caused by its (the station's) operation. To the extent that such
action may require the installation of filters and similar equipment, the
permittee will, of course install such equipment.
Accordingly, the Commission believes
that any problem as to potential interference has been satisfactorily resolved.
Commissioner
Johnson concurred in the result. Commissioner Reid was absent.
BY
DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
CONCUR:
SEPARATE STATEMENT OF COMMISSIONER
NICHOLAS JOHNSON CONCURRING IN PART AND DISSENTING IN PART
The Federal Communications
Commission in renewing the license of WSNT-AM, Sandersville, Georgia, today
revisits an old issue -- the proper role of the private attorney general in the
Commission's processes. In my judgment the Commission has again turned
its back on the plight of the citizen advocate.
[*480] By now it seems
fair to conclude that this Commission has never really learned the stern
lessons set out by the U.S. Court of Appeals in the celebrated Church of Christ
litigation.
Twice this Commission went out of
its way to trample citizens' rights in renewing the license of a Southern
station entwined in a bitter racial dispute. And twice this Commission
was reversed in the Church of Christ cases that have since become classics in
Administrative Law. Office of Communication of United Church of Christ v.
F.C.C., 359 F. 2d 994 (D.C. Cir. 1966) ("Church of Christ I"); Office
of Communication of United Church of Christ v. F.C.C., 425 F.2d 543 (D.C. Cir.
1966) ("Church of Christ II"). These decisions stress the
importance of participation by responsible listening groups in license renewal
proceedings before the FCC. They make it quite clear that filing by
responsible citizen advocates, as well as the encouragement of private
agreements, are important keystones for advancing the public's interest in
improved broadcaster performance.
Since these decisions this
Commission had paid scant attention to the Circuit Court's clear command.
As then Circuit Judge Burger, now the Chief Justice of the United States, wrote
in Church of Christ II: "We did not intend that intervenors representing
the public interest be treated as interlopers." Id. at 546 (1969).
I.
By its action today in WSNT-AM the
Commission stands once again against the rising tide of the public interest law
movement now sweeping the legal profession. The Commission's stand cannot
long hold in the face of the current judicial and legislative trend. See,
Shayon, Renewal Rangers, Saturday Review, August 21, 1971, at 28. I have
elsewhere documented this new current in the law. See, N. Johnson, A New
Fidelity to the Regulatory Ideal, 59 Geo. L.J. 869 (1971). See also, Note, The
New Public Interest Lawyers, 79 Yale L.J. 1069 (1970). The movement in our
regulatory process is decidedly toward more strong and independent public
interest advocacy in order that the law's vaunted adversary process can be
balanced in fact, instead of gruesomely dominated, as it now is, by the
corporate elite. Geo. L.J., supra, at 896-901.
Yet we continue to cling to what
Judge Burger has characterized as a curious "neutrality-in-favor-of-the
licensee." Church of Christ II, supra, at 547.
This dubious "neutrality"
(which has done little to encourage intelligent citizen participation) was
never more evident than last fall in a Commission decision that forms the
questionable foundation for today's action in WSNT. In September 1970,
the Commission by a 4-3 vote (Chairman Burch, Commissioners Cox and Johnson
dissenting) refused to approve an agreement that would have allowed television
station KTAL-TV in Texarkana, Texas to reimburse the United Church of Christ
for expenses the Church had incurred in helping local blacks oppose the
station's license renewal. KCMC,Inc., 25 F.C.C. 2d 608, 605 (1970). The
Church dropped the costly fight after the station had promised to improve black
hiring and programming. See KCMC, Inc., 19 F.C.C. 2d 109 (1969).
[*481] If the Commission
had chosen to approve the $15,000 reimbursement, it could have set a powerful
precedent encouraging local public interest groups to fight as private attorney
generals in forcing stations to do what the FCC is unable or unwilling to do:
upgrade their performance.
The U.S. Department of Justice has
said of the Commission's decision in KCMC, Inc:
The United States believes that the Commission's
ruling frustrates the public participation which this Court held was vital in
Church of Christ I and II. It constitutes a rejection of Commission
policy followed for many years in closely analogous situations of approving the
reimbursement of legitimate and prudent expenses of a withdrawing party when
the settlement agreement between the parties is in the public interest.
The Commission by invoking the criterion of necessity has used an erroneous
legal standard that misconceives the Commission's obligations to advance the
public interest and is at variance with standards elsewhere in the
Communications Act. Under the appropriate standard of consistency with
the public interest, the Commission's findings and reasoning are inadequate to support
its result, especially in light of its failure to consider readily available
protective devices * * * to safeguard the public interest against possible
abuses of reimbursement agreements. (Brief of the U.S. Department of
Justice at 8, United Church of Christ v. F.C.C., No. 24, 672 (D.C. Cir., filed
April 1971))
In short, the Commission erred in KCMC, Inc. -- for the
substantial reasons outlined above by the Justice Department -- and it errs
again today in WSNT, Inc., a closely analogous case.
Because the "private attorney
general" concept is so central to sound public participation in the
renewal process I propose to explore the facts and the policy behind this
particular case at some length below.
I concur in part and dissent in part
to the Commission's action. I concur in the renewal of the license for
WSNT, Inc., but I dissent to our denial of the petitioner's request for
reimbursement of $1,931.60 in expenses incurred in the processing of the
petition to deny WSNT's renewal.
II.
I concur in the granting of the
petition for reconsideration of our order designating for hearing WSNT's
renewal application because the issues specified in the hearing order have been
satisfactorily resolved with the new community ascertainment by WSNT. We
have accepted the new ascertainment and the agreement between WSNT and the
citizens' group (intervenors) as an amendment to WSNT's renewal
application. The agreement will eliminate any misconceptions the licensee
may have had concerning its broadcast responsibilities. It will clarify
its policies and eliminate any future misunderstandings. Therefore, I do
not object to the granting of the license renewal.
However, I dissent to the
Commission's denial of the intervenors request for reimbursement of expenses,
because with this decision the Commission will further those adverse effects
which I warned of in KCMC, 19 F.C.C. 2d 109 (1970) (dissenting opinion).
I fear the denial in KCMC, Inc., and today's action in WSNT, Inc., will make it
much more difficult for citizens' groups to become active participants in the
regulation of our broadcast licenses.
In KCMC, Inc., the Commission
refused to approve a voluntary agreement to reimburse a citizens' group for its
legitimate expenses. [*482] With its action today in WSNT,
Inc. the Commission carries a bad precedent one step further.
As I will detail below, I believe
this Commission had ample authority and precedent to order the reimbursement of
community groups in legitimate cases.
III.
The WSNT case began on December 31, 1969,
when the licensee asked for renewal. On March 2, 1970, Arnold Hayes,
representing the Southern Christian Leadership Conference, and Richard Turner,
representing the Black Youth Club of Sandersville, Georgia, filed a petition to
deny renewal. The petitioners claimed that the licensee, in his radio
news presentation, had discriminated against the blacks of Sandersville (who
represent approximately 60 per cent of the population). The licensee
refused to broadcast any information about the blacks' lawful campaign to
improve their economic, political, and social environment. This campaign
had been the subject of stories on television network news and the national
wire services. Yet WSNT did not give any news coverage to these
events. In addition the licensee did not provide the black community with
broadcast services equal to those provided the white community. WSNT
broadcast 26 basketball games and 11 football games played by the predominately
white high school, but it did not broadcast any of the sports events of the all
black high school. Finally, the petitioners claimed that the licensee's
ascertainment did not reflect the needs and interests of the community.
Of the 26 people interviewed only four black (60 per cent of population is black),
and none of the interviewees mentioned the legitimate campaign that was
affecting the community and making national news. The Commission
eventually designated this renewal application for hearing on March 11,
1971. WSNT, Inc., 27 F.C.C. 2d 993 (1971).
Subsequent to this hearing
designation, the licensee and intervenor agreed to resolve their
differences. Basically the agreement provided that WSNT would take a more
balanced racial approach with its programming and employment. The
intervenors gave their support to WSNT's petition for reconsideration and urged
the Commission to grant the renewal application of WSNT.
Today the Commission responds by
granting the WSNT renewal. In doing so the Commission supposedly
reaffirms the policy it announced in KCMC, Inc., supra, at 109:
We believe that this Commission
should encourage licensees to meet with community oriented groups to settle
complaints of local broadcast service. Such cooperation at the community
level should prove more effective in improving local service than would be the
imposition of strict guidelines by the Commission.
I
wholeheartedly support this concept, and have tried to make it an integral part
of our broadcast regulation. Nevertheless, I believe that the action of
the Commission in denying the request for reimbursement in this case, coupled
with the majority's precedent in KCMC, Inc., supra, can only discourage the
very process of local negotiation and settlement the Commission purports to
advance.
The reason WSNT did not agree to
reimburse the intervenors clearly rests on Commission precedent in KCMC.
WSNT must have known that the Commission would not approve such an
agreement. Furthermore, it must have been quite obvious to the licensee
that the Commission [*483] majority would not order reimbursement.
Why would the Commission order reimbursement when we refused to approve a
voluntary plan of reimbursement? Clearly, there was no incentive for the
licensee to agree to reimburse. The licensee obviously was willing to
accommodate only those claims which he thought would jeopardize his renewal
application.
IV.
On the broadcast level, it is
important to set out what the Commission's role is and what it should be in the
renewal process.
James Landis, the late Dean of the
Harvard Law School and the administrative law authority, stressed that the
administrative process was originally designed "to plan, to promote, and
to police" the regulated industries on behalf of the public interest. J.
Landis, The Administrative Process 15 (1938) (emphasis supplied). In the
Commission's renewal process, as I noted in KCMC, Inc., 25 F.C.C. 2d at 617,
there are three possibilities for structuring the policing task:
1. The Commission's staff can
do the job. But partly through lack of will and partly through lack of
manpower and money, the Commission has rarely been able to give adequate
attention to policing.
2. Another option is to
encourage community groups and the growing alliance of consumer federations and
citizens' lobbies to perform the agencies' work. This is sometimes called
the "private attorney general" concept, and I have had the
opportunity to explore this theory at some length. [See, Geo. L., article
cited above.]
3. The final option, of
course, is that no one does anything if the Commission itself or private
attorney generals do not take up the challenge.
If the Commission had been of a mind
to do so, there are at least three strong legal rationale for ordering the
reimbursement of a private attorney general when the licensee and a citizens'
group have come to a private agreement upgrading the broadcasters' community
service:
(a) The Commission's affirmative
duty to encourage citizen participation which stems from the Church of Christ I
and II precedents;
(b) As a fiduciary of a valuable
public resource, the licensee is liable for the costs incurred by the public in
bringing the licensee to account for his neglect of a public trust; and
(c) Ample Commission precedent in
closely analogous reimbursement cases.
Affirmative Duty. The Church of
Christ I case leaves little doubt as to the value and desirability of public
participation in the renewal process. In stressing the need for citizen
activity, Church of Christ I said:
Public participation is especially
important in a renewal proceeding, since the public will have been exposed for
at least three years to the licensee's performance, as cannot be the case when
the Commission considers an initial grant, unless the applicant has a prior
record as a licensee. In a renewal proceeding, furthermore, public
spokesmen, such as appellants, here, may be the only objectors. Id. at
1004.
Church of Christ II carried the point considerable further
toward requiring the Commission to foster and maintain a pro-citizen
attitude. As then Circuit Judge Burger wrote, "The Commission * * *
[has] an affirmative duty to assist in the development of a meaningful record
which can serve as the basis for the evaluation of the licensee's performance
of his duty to serve the public interest." (emphasis supplied) [*484]
Church of Christ II at 548. The only way known under the adversary
process for developing a "meaningful record" is to put the private
attorney general on a par with the corporate elite he faces when challenging a
broadcaster. What this means in substance, then, is the active
encouragement of public counsel -- and their appropriate financing -- by the
Commission in every phase of its regulatory activity. Anything less falls
short of the spirit of the "meaningful record" Judge Burger posited
as the appropriate Commission goal for a balanced adversary process.
Public Trust. A strong public
trust argument also makes it entirely appropriate and legally compelled that
licensees bear the expenses of private attorney generals. As a
"proxy or fiduciary" of a valuable public resource, Red Lion
Broadcasting Co. v. F.C.C., 395 U.S. 367, 389 (1969), the broadcaster is liable
for the costs incurred by the beneficiary (i.e., the listening public) in
bringing the broadcaster to account for his neglect of the public trust. Cf.,
Scott, Trusts, Vol. II, § 245 (1956). This public trust theory is
deeply engrained in the legislative history of even the most recent amendments
to the Communications Act of 1934. S. Rep. No. 562, 86th Cong., 1st
Sess., 8-9 (1956) ("* * * broadcast frequencies are limited and,
therefore, they have been necessarily considered a public trust.").
The Church of Christ litigation likewise uses trust analogy. Church of
Christ I at 1003 ("* * * a broadcast license is a public trust subject to
termination for breach of duty"); Church of Christ II at 548 ("* * *
broadcasters are temporary permittees -- fiduciaries -- of a great public
resource * * *").
It is further argued that as the
owners of the airwaves, 47 U.S.C. § 301, public intervenors are seeking
to protect their "equity" interest against the licensee's
mismanagement and are entitled to recover their costs where substantial
benefits are realized. E.g., Mills v. Electric Autolite Co., 396 U.S. 375
(1970). And the licensee, as the greatest beneficiary of the 1934
Communications Act's licensing scheme, should bear the costs of policing the
licensing scheme. Schedule of Fees, F.C.C. 70-694, 35 Fed. Reg. 10988,
10989 (1970). (See also, Brief of the Petitioners at 8A In Re WSNT, Inc., Dkt.
No. 19167 (June 1971)).
Commission Precedent. While
the Commission had not dealt specifically with the private attorney general
problem before KCMC, Inc., there exist both a relevant statute and a body of
Commission case law involving reimbursement agreements in closely analogous
circumstances. Congress provided in the 1934 Communications Act, 47
U.S.C. § 311 (c), that where two or more applicants for a construction
permit reach a settlement agreement involving withdrawal by one of the
applicants, the Commission shall approve the agreement if it is consistent with
the public interest in the matter. Section 311(c)(3) anticipates that
reimbursement of the expenses of the withdrawing applicant will be part of such
agreements, and it makes clear that such reimbursement is consistent with the
public interest so long as it is an "* * * amount determined by the
Commission to have been legitimately and prudently expended and to be expended
* * *" in connection with the application. NBC, Inc., 25 P & F
Radio Reg. 67 (1963). This reimbursement policy has had its application in
other communications fields through ample Commission precedent.
See, [*485] Premier Television, Inc., 9 P & F Radio Reg. 397
(1953) (new station); Clarksburg Publishing Co. v. F.C.C., 225 F. 2d 511,
519-520 (D.C. Cir. 1955) (Circuit Court approved reimbursement practice);
Lompoc Valley Cable T.V., Inc., 1 F.C.C. 2d 66 (1965) (CATV reimbursement);
Bettervision Systems, Inc., 11 F.C.C. 2d 967 (1968) (CATV reimbursement).
In its most recent case, barely six weeks before the Commission's KCMC
decision, the Commission in National Broadcasting Co., 19 P & F Radio Reg.
634 (1970) approved an agreement whereby Voice of Los Angeles withdrew its
competing application for NBC's license in Los Angeles in exchange for NBC's
payment of over $100,000 costs. The Commission said: "* * * fairness
dictates that Voice should be permitted to withdraw and be reimbursed by
NBC." Id. at 636.
In short, the Commission's actions
in KCMC, Inc. and today in WSNT, Inc. are inconsistent with the Commission's
clear policy in closely analogous cases of approving reimbursement of
legitimate and prudent expenses when a settlement agreement between the parties
is otherwise consistent with the public interest.
V.
There is little merit to the
majority's contention that approval of such expenses would encourage
"opportunists" to file frivolous petitions to deny. There is
not a shred of evidence to support such fears offered in the majority's
argument or in the record in this case. On the contrary, the record in
this case reveals just the kind of public interest performance which the
Commission stated it wanted to encourage.
When and if abuses arise, the
Commission can deal with them at that time and in a variety of ways. It
could set a flat ceiling on the amount of expenses to be derived in a case
where petitioners are successful in forcing the licensee to make
improvements. There could be a very close scrutiny by the Commission of
the expenses claimed. In any event, the problem, if it someday exists at
all, is neither before us now nor insoluble -- as Commission precedents in the
cases cited supra amply indicate.
In sum, because of the firm
precedents in Church of Christ I and II; because a licensee has a fiduciary's
duty to maintain a public trust; because of the many closely analogous
Commission case decisions; and because the entire sweep of administrative law
today points toward more vigorous public participation in agency law-making, I
conclude that this Commission can -- and should -- order the reimbursement of
$1,931.60 in expenses to WSNT's petitioners. Our failure to so order in
KCMC, Inc., and WSNT, Inc. works to frustrate the spirit of public
participation required by Church of Christ I and II. ("The Public
Intervenors, who were performing a public service under a mandate of this
Court, were entitled to a more hospitable reception in the performance of that
function. * * * [An] ally was regarded as an opponent." Church of
Christ II at 548.) I had hoped for better.
APPENDIX:
TO BE ASSOCIATED WITH MEMORANDUM
OPINION AND ORDER FCC 71-814 AT VOL. 31 FCC 2D 1080 ORDER FCC 71-814 AT VOL. 31 FCC 2D 1080