In Re Applications of THE ALABAMA EDUCATIONAL TELEVISION
COMMISSION For Renewal of Licenses for; STATION WAIQ (ED-TV) MONTGOMERY, ALA.;
STATION WBIQ (ED-TV) BIRMINGHAM, ALA.; STATION WCIQ (ED-TV) CHEAHA STATE PARK,
ALA.; STATION WDIQ (ED-TV) DOZIER, ALA.; STATION WEIQ (ED-TV) MOBILE, ALA.;
STATION WFIQ (ED-TV) FLORENCE, ALA.; STATION WGIQ (ED-TV) LOUISVILLE, ALA.;
STATION WHIQ (ED-TV) HUNTSVILLE, ALA.; and For License to Cover Construction
Permit for Station WIIQ(ED-TV), Demopolis, Ala.
Docket No. 19422 File No. BRET-69;
Docket No. 19423 File No. BRET-5; Docket No. 19424 File No. BRET-7; Docket No. 19425
File No. BRET-14; Docket No. 19426 File No. BRET-87; Docket No. 19427 File No.
BRET-130; Docket No. 19428 File No. BRET-147; Docket No. 19429 File No.
BRET-109; Docket No. 19430 File No. BLET-267
FEDERAL COMMUNICATIONS COMMISSION
33 F.C.C.2d 495
RELEASE-NUMBER: FCC 72-124
February 11, 1972 Released
Adopted February 8, 1972
JUDGES:
BY THE COMMISSION: CHAIRMAN BURCH
CONCURRING AND ISSUING A STATEMENT IN WHICH COMMISSIONER REID JOINS;
COMMISSIONER BARTLEY DISSENTING AND ISSUING A STATEMENT; COMMISSIONER JOHNSON CONCURRING IN PART AND DISSENTING
IN PART AND ISSUING A STATEMENT; COMMISSIONER H. REX LEE ABSENT;
COMMISSIONER WILEY ABSTAINING FROM VOTING.
OPINION:
[*495] 1. The Commission
has before it for consideration (1) the above-captioned license renewal
applications filed by the Alabama Educational Television Commission
(hereinafter referred to as the AETC); (2) the Commission's action of June 24,
1970, released June 29, 1970, granting the above-captioned license renewal
applications and dismissing several complaints against the AETC; (3) two
petitions seeking reconsideration of the Commission's action, one of which was
filed July 28, 1970, by Reverend Eugene Farrell, Linda Edwards and Steven
Suitts (hereinafter referred to as the Edwards petition), and the other
[*496] of which was filed July 28, 1970, by Anthony Brown, in his
individual capacity and as representative for the National Association of Black
Media Producers, and William D. Wright, in his individual capacity and as
representative for Black Efforts for Soul in Television (hereinafter referred
to as the Brown petition); (4) AETC's opposition to the Edwards and Brown
petitions, filed September 14, 1970; (5) replies to AETC's opposition pleading
filed on October 9, 1970, by the Edwards and Brown petitioners; (6) a document
dated April 27, 1971, received by the Commission on May 27, 1971, submitted by
the AETC to the Department of Health, Education and Welfare (H.E.W.) setting
forth its proposals for meeting the educational television needs of Alabama's
black community; (7) comments on AETC's proposal filed June 25, 1971, by the
Edwards and Brown petitioners; (8) supplemental information regarding its
proposal filed by the AETC on August 2, 1971; and (9) comments on AETC's
supplemental information and a request for an immediate ruling, filed August
16, 1971, by the Edwards petitioners.
2. In order to place the
questions before the Commission in proper perspective, it is first necessary to
summarize the events occurring both before and after the filing of the instant
petitions. Initially, it is noted that the AETC is an affiliate of the
National Educational Television Network (NET). Prior to July 1, 1969, the
AETC delegated responsibility for the network's NET affiliation agreement to
its University of Alabama program origination center. However, effective
July 1, 1969, the AETC assumed full control over the NET affiliation
agreement. This action resulted in the filing of several informal, letter
complaints with the Commission.
3. The first letter, dated
January 14, 1970, from the Chairman of the Faculty Senate, College of Arts and
Sciences, University of Alabama, complained that the Program Board had never
exercised any decision making power and that the AETC had discontinued the
"Black Journal" series and preempted several other programs.
Complainant requested the Commission to require the AETC to vest programming
and policy in the Program Board, which he claimed was constituted for that
purpose. The second letter, dated January 28, 1970, was received from
Mrs. Judith A. Austin, a former employee of the AETC, to which there was
attached a petition signed by sixty persons, including Steven Suitts. Mrs.
Austin complained that the AETC engaged in racial discrimination by censoring
several black oriented NET programs, including "Black Journal",
"Soul", and "On Being Black".
4. In accordance with usual
procedures when complaints of a general nature are received, the Commission
forwarded the Faculty Senate and Austin letters to the AETC for its
comments. In response, the AETC submitted two letters, both dated
February 25, 1970, one of which was directed to the Faculty Senate letter and
the other of which was directed to the Austin letter. In substance, the
AETC denied charges of racial bias, explained why it had assumed control over
the network's affiliation agreement, and why it had deleted certain net
programs from its schedule. Thereafter, the Commission received a number
of additional complaints regarding the AETC, including a letter from Linda
Edwards dated March 9, 1970, and two letters from [*497] Reverend
Eugene Farrell, one of which was dated March 12, 1970, and the other dated June
8, 1970. Miss Edwards, who identified herself as a black freshman at the
University of Alabama, stated that the AETC "has prevented all liberal or
black-oriented programs from being seen by Alabamians" by censoring
programs such as "On Being Black", "Black Journal" and the
"Denver Black Panther Trial." Miss Edwards also stated that
"[it] is not fair for a select group of racist politicians to command what
shows be presented to the public according to their own bigoted views."
Reverend Farrell's first letter was a copy of a letter he sent to Vice
President Spiro T. Agnew, complaining of the AETC's censorship and asserting
that "ETV in Alabama is surely becoming the media for White
Supremacy." He further stated: "I have yet to see a black face on
ETV", although he admits that he "cannot watch ETV all day
long." Reverend Farrell's letter of June 8, 1970, to the Commission
reiterated his complaint to the Vice President. The AETC, in specific
reference to Reverend Farrell's complaint, submitted to the Commission a list
of integrated programming which had been broadcast over the network from
September 1, 1969, through March 27, 1970. In this connection, the AETC
noted that it had broadcast 257 integrated programs for a total of 217 hours of
broadcast time during the period mentioned, namley: Christmas Special (1
program, 1 1/2 hrs.); Stepping Into Rhythm (60 programs, 15 hrs.); On Campus
(30 programs, 15 hrs.); Focus (6 programs, 3 hrs.); Huntsville, Magazine (31
programs, 15 1/2 hrs.); Earning Through Learning (6 programs, 3 hrs.); Music Specials
(3 programs, 1 1/2 hrs.); Dialogue on Education (2 programs, 1 hr.);
Sportsmanlike Driving (1 program, 1/2 hr.); Know Your News (10 programs, 5
hrs.); Headliners (1 program, 1/2 hr.); Medical Center (1 program, 1/2 hr.);
and Sesame Street (155 programs, 155 hrs.).
5. The Commission, by letter
dated June 29, 1970, dismissed the above-noted complaints and granted the
AETC's above-captioned license renewal applications for the period ending April
1, 1973, stating:
The Commission has reviewed the overall
operations of the eight Alabama educational stations and the allegations raised
by the complainants to determine if the public interest would be served by a
grant of the applications. With respect to the issues of program
selection and control, the Commission, barring certain exceptions, is not
concerned with matters essentially of licensee taste or judgment. cf.
Palmetto Broadcasting Co., 33 FCC 250, 257 (1962). The licensee necessarily and
properly has wide discretion in choosing the programming to meet the needs and
interests of the community. The Commission regards the maintenance of
control over programming as a most fundamental obligation of the
licensee. Here we are dealing with a few programs which in the licensee's
opinion contain certain offensive material. In view of the foregoing,
there is no substantial problem warranting further inquiry, and the Commission
has directed that the applications for renewal of license filed by the AETC be
granted. n1
n1 The Commission's decision was made on June 24,
1970, and released on June 29, 1970, with Commissioners Cox, Johnson and H. Rex
Lee dissenting and issuing statements. 25 FCC 2d 342.
[*498] 6.
Thereafter, as previously indicated, on July 28, 1979, the Edwards and Brown
petitioners requested the Commission to reconsider its decision and order
hearing to determine whether a grant of the renewal applications would serve
the public interest. Briefly, petitioners assert that AETC's license
renewal applications should be designated for hearing on the grounds that
licensee has (1) failed to ascertain and meet the needs and interests of
Alabama's black community; (2) discriminated against Alabama's blacks in its
employment practices; (3) violated the freedom of speech of Alabama's black
community; and (4) failed to obtain authorization to assume control of the
network's programming operations in violation of the terms of its license and
Section 310(b) of the Communications Act. The AETC filed an opposition to
both petitions and petitioners filed replies to the opposition.
7. On the same date that these
petitions were filed with the Commission, copies were sent to various other
government agencies and officials, including T. H. Bell, Acting U.S.
Commissioner of Education, * Department of Health, Education and Welfare.
In a letter to the Commission dated September 2, 1970, Mr. Bell noted that the
AETC was then receiving federal financial assistance in the amount of
$1,000,000, and had 10 applications pending for an additional $2,761,213.
Mr. Bell also noted that the petitions raised a question whether the AETC was
complying with the requirements of Title VI of the Civil Rights Act of 1964,
which prohibits discrimination on the ground of race, color, creed or national
origin in the operation of any Federally assisted program. Mr. Bell also
stated that the Office of Education was instituting an investigation into the
operation of the AETC. As a result of a meeting between the AETC and
officials of the Office of Civil Rights, Department of Health, Education and
Welfare, the AETC submitted a proposal, dated April 27, 1971, which included
plans for ascertaining the needs of the Alabama black community, for production
of specific programs to meet those needs, for a training program for a black
engineer, and for an advisory committee "to reflect the community ETV
needs and act as a sounding board to the AETC programming." Thereafter, on
June 3 and September 12, 1971, H.E.W. approved grants for the AETC in the
amounts of $89,621 and $340,000, respectively.
8. On June 10 and 11, 1971,
Commission representatives met separately with petitioners and the AETC in an
effort to clarify the positions of the parties. The AETC's proposal to
H.E.W. formed a basis of those discussions. The substance of the matters
discussed is contained in the subsequent submissions by the petitioners and the
AETC to the Commission. That is, on June 25, 1971, the Edwards
petitioners submitted their comments on the AETC's proposal to H.E.W. By
letter dated July 16, 1971, the AETC informed the Commission of the progress it
had made on its proposals. This letter, in turn, evoked comments from the
Edwards petitioners and a request for an immediate ruling in this case.
Brown-Wright Petition
9. Anthony Brown and William
D. Wright did not avail themselves of the opportunity to file a pre-grant
petition to deny, (47 [*499] U.S.C. 309(d)(1); 47 C.F.R. 1:580(i),
or informal objection (47 C.F.R. 1.587). They now seek reconsideration of
the Commission's action on the grounds that they "... believe that the
Commission's decision of June 29, 1970... will frustrate the goals to which
they and their organizations are devoted"; and, moreover, that "...
the decision, if left standing, will impede the participation of blacks in both
commercial and noncommercial broadcasting throughout the country." The
Brown petitioners also state that, "... as black men and organizations
composed of blacks, they have a clear interest in the plight of their brethren
in Alabama." The Brown petitioners state further that they "... have
not come forward before this [time] because they believed that the facts that
had already been called to the attention of the Commission were sufficient to
bar the Commission's action of June 29, 1970."
10. In its opposition
pleading, the AETC asserts that the Brown-Wright petition for reconsideration
must be dismissed in that, neither was a party to the proceeding prior to
grant; neither demonstrates any manner in which he could have aggrieved or
adversely affected by the granting of the AETC's renewal applications; neither
alleges any facts which were unknown (or which could not readily have been
known) when the applications were under pre-grant consideration; neither
asserts any legally cognizable connection with the coverage areas of the AETC's
stations; and neither has submitted any affidavit attesting to personal
knowledge of any of the allegations made on their behalf.
The AETC asserts, therefore, that, "[in] short, under
any interpretation of Section 1.106 [of the Commission's rules] the Brown and
Wright petition should be dismissed without substantive consideration."
11. In their reply, the Brown
petitioners state that "... as black men and as representatives of
national black organizations, [they] believe that their relation to AETC is
discernible." In this respect, the Brown petitioners state that they are
not only taxpayers who support the AETC with federal grants but, more
importantly, "... their respective organizations are directly concerned
with efforts in the communications field to meet black educational and cultural
needs throughout the Nation." The Brown petitioners also state that,
"[given] the fact that it is supported by federal funds, the AETC cannot
deny the interdependence of the levels of government or the impact which the
Commission's decision in this matter may have in other states."
Additionally, the Brown petitioners state that, "[at] the time of the
Commission's decision, petitioners were not aware of the federal grants
received by AETC and did not have access to other information..."; that
"petitioners did not believe then that such information was necessary,
since the facts of the initial complaints were believed to be sufficient to
warrant denial of AETC's renewal applications," and, that "[because]
of information newly acquired, and because the Commission did renew AETC's
license, petitioners now feel compelled to submit the new information and
present a perspective on this matter which was heretofore lacking -- the
perspective of black men involved in the communications field
[*500] and directly concerned with the treatment of black educational
needs by noncommercial licensees.
12. The Brown petitioners, in
their reply, also state that they realize that "... under different
circumstances their failure to register pre-grant complaints with the
Commission may have warranted dismissal of their petition for
reconsideration." The Brown petitioners assert, however, that they are not
parties "with a potential financial interest in the particular license"
but, rather, "... public interveners who are concerned with the
performance of a noncommercial educational licensee." The Brown
petitioners assert further that dismissal of their petition "... will not
make it unnecessary for the Commission to proceed further in this matter"
since there is another petition for reconsideration also pending before the
Commission concerning the AETC's license renewal grants. The Brown
petitioners conclude, therefore, that the only effect of a dismissal of their
petition "... will be to foreclose information and analyses relating to a
matter the Commission will consider in any event."
13. The Brown-Wright petition
for reconsideration will be dismissed. Section 405 of the Communications
Act of 1934, as amended, 47 U.S.C. 405, as implemented by Section 1.106 of the
Commission's rules, 47 C.F.R. 1.106, permits the filing of a petition for
reconsideration by (1) any party to the proceeding and (2) any other person
aggrieved or whose interests are adversely affected by the Commission's action.
Section 1.106(b) of the Commission's rules requires a person who was not a
party to the proceeding and who seeks reconsideration to "... show good
reason why it was not possible for him to participate in the earlier stages of
the proceeding." The Brown petitioners could have participated in the
earlier stages of this proceeding by filing either a petition to deny or
informal complaint against AETC's license renewal applications. As
previously indicated however the Brown petitioners did not come forward at the
time the Commission had the AETC's license renewal applications under
consideration because, in their opinion, the facts already called to the
Commission's attention were sufficient to bar a grant of the renewals and
designate the applications for hearing. Without ruling on the question
whether Brown and Wright would have had standing to protest the AETC's license
renewal applications, if an individual has a right to participate in a
proceeding before this Commission he cannot delay exercising that right until
after the Commission has acted and then expect to be allowed to participate by
filing a post grant pleading. Springfield Television Broadcasting
Corporation v. Federal Communications Commission, 117 U.S. App. D.C. 214, 328
F.2d 186 (1964); Valley Telecasting Company, Inc. v. Federal Communications
Commission, 118 U.S. App. D.C. 410, 336 F.2d 914 (1964). As stated in KIRO,
Inc. v. Federal Communications Commission, 438 F.2d 141 (1970), "we do not
find in statute or case law any ground for accepting the premise that
proceedings before administrative agencies are to be constituted as endurance
contests modeled after relay races in which the baton of proceeding is passed
on successively from one legally exhausted contestant to a newly arriving stranger."
Accordingly, we find that the Brown-Wright petitioners have not met the more
exacting standard which is required of a petitioner [*501] who
comes in for the first time with a post-grant pleading and, therefore, their
petition for reconsideration will be dismissed. We note, however, that
contentions substantially similar to those advanced by the Brown-Wright
petitioners have been raised by the Edwards petitioners.
Edwards Petition
14. The Edwards petitioners
acknowledge that, "[to] date, the Commission has not required that
noncommercial educational stations ascertain the community's needs in the same
manner as commercial stations (Edwards Petition, p. 3). The Edwards'
petitions maintain however that noncommercial broadcasters must, "at some
point..., make a positive effort to understand the needs of the community and
how those needs may be most appropriately satisfied." (Edwards Petition,
p. 9). The Edwards petitioners allege that the AETC has made no showing
of an effort to understand or satisfy the needs of its community. The
Edwards petitioners conclude that this failure to consult blacks about
programming constitutes a violation of the AETC's responsibilities as a
licensee.
15. The Edwards petitioners
also contend that the AETC's program service is "inadequate to meet the
educational and cultural needs of Alabama's blacks." (Edwards Petition, p.
11). Thus, it is alleged that less than 10% of the broadcast time during
the period between September 1, 1969 and March 27, 1970, was integrated.
Moreover, the Edwards petitioners assert that of the 217 1/2 hours of
integrated programming telecast, 155 hours were occupied by "Sesame
Street"; and 15 hours by "Stepping Into Rhythm", both children's
programs. Thus, the Edwards petitioners state that only 47 1/2 hours or
less than 3% of AETC's broadcast time involved black adults and none of this
time was "specifically related to blacks in general or to the black
community in Alabama in particular." (Edwards Petition, p. 12). The
Edwards petitioners also allege that "of 937 1/2 hours of instructional
television during the period in question, only 15 1/2 hours were
integrated." (Edwards Petition, p. 13). It is asserted that the
AETC's refusal to carry program origination outside Alabama which are specifically
intended for blacks raise serious questions in view of the AETC's own
inadequate efforts to meet the needs of the black community. The Edwards
petitioners conclude that, "when the licensee of a noncommercial
educational station consciously or unconsciously discriminates against blacks
and demonstrates by a comprehensive and systematic exclusion of relevant
programming a lack of any intention or desire to understand or to satisfy the
educational or cultural needs of 30% of its viewing audience, a substantial or
material question of fact as to whether renewal would serve the public interest
is raised." (Edwards Petition, p. 18).
16. In the area of employment
practices the Edwards petitioners allege that the AETC has discriminated
against blacks since there are no blacks on the staff of forty nor is there any
indication that the AETC "has established and maintained a continuing
program to insure equal opportunities for blacks to be employed by the
AETC." (Edwards Petition, p. 20). Thus, in this regard, it is
alleged that the [*502] AETC has violated the provisions of Section
73.680(a) of the Commission's Rules, 47 C.F.R. 73.680(a).
17. The Edwards petitioners
further allege that the AETC has violated the freedom of speech of blacks by
censoring programs of specific interest to blacks. Petitioners recognize
the right of a licensee to select programming, and that refusal to carry a
particular program does not, by itself, constitute evidence of
censorship. However, the Edwards petitioners submit that "when that
unwillingness attaches systematically to every adult program specifically
related to blacks, the conclusion is inescapable that not only has the AETC
discriminated, but it has also censored those programs even though many do not
contain objectionable language or scenes..."
18. Finally, the Edwards
petitioners submit that the Commission's decision to issue the AETC's original
license was predicated upon the existence of a Program Board composed of
educators from the State of Alabama. Petitioners contend that until July
1969, "[the] Programming Board functioned under the direction of various
educators associated with the University of Alabama." (Edwards Petition,
p. 25). However, petitioners assert, "on July 1, 1969, AETC suddenly
stripped the persons of their program directing authority and transferred the
authority to its own offices in Birmingham." (Edwards Petition, p.
25). Petitioners conclude, therefore, that this assumption of programming
control is "in violation of the conditions imposed... by the
Commission." (Edwards Petition, p. 25). Moreover, petitioners submit
that this assumption of programming control was accomplished without notice to
the Commission in violation of Section 310(b) of the Communications Act.
Petitioners also conclude "that the differing factual contentions in this
matter must be resolved by the Commission in an evidentiary hearing."
(Edwards Petition, p. 27).
19. In opposition, the AETC
asserts that "the allegations in both petitions boil down to one basic
argument: a claim that the AETC improperly discriminated against Alabama blacks
by virtue of its non-carriage of some or all four NET program offerings: 'On
Being Black,' 'Black Journal,' 'Soul,' and the 'Denver Black Panther
Trial'" (Opposition, p. 18). The AETC states that it is particularly
vulnerable to the type of complaint being made since it is unable to carry all
NET programs as a result of its heavy schedule of locally originated
programs. With regard to the programs, "On Being Black" and
"Soul", the AETC asserts that they conflicted with its established
schedule in addition to presenting problems from the standpoints of taste and
overall worth. With regard to its selection of programs, the AETC refers
to its program policy which states, in part, the controversial public affairs
program "... will have no vituperation, slander or personal attacks, but
present only dignified discussion of issues." (Opposition, p. 21).
Also, the AETC asserts that its NET affiliation agreement imposes a "take
it or leave it" policy in that an NET program must be broadcast in its
entirety without any deletions. Thus, when the AETC finds certain
material offensive, it must delete the entire program. The AETC
concludes, with regard to program selection, "... that any licensee,
knowing his area of service, has an obligation [*503] to determine
whether a particular program will meet the needs of the public it serves.
In every sense of the word, minority needs must be considered and met as well
as majority needs. The decision, however, properly lies with the licensee
and not with the FCC." (Opposition, p. 22-23).
20. The AETC states there has
been no censorship or denial of anyone's freedom of speech. It also
denies suppressing the expression of certain viewpoints. The AETC
emphasizes that "when time is available NET programming such as 'Black
Journal' is considered carefully by the AETC," but first priority is given
to Alabama oriented programming. (Opposition, p. 23). The AETC
notes that it now has a policy of taping "Black Journal", reviewing
the tape, and then broadcasting it one week later if it is found acceptable.
21. With regard to its
employment practices, the AETC asserts that the petitioners have no basis for
their allegations. The AETC contends that, out of a total of about 50
employees, the AETC now employs five blacks including: one custodian, one
secretary, one engineer, one production department assistant, and one program
producer. Moreover, the AETC notes that it has recently arranged with the
Jefferson County Committee for Economic Opportunity for a program to train
black engineers. Finally, the AETC notes that it does not control the
hiring practices of its production centers, since they are agencies under
contract to the AETC.
22. The AETC asserts that its
assumption of the NET affiliation was proper and, in fact, was in conformity
with AETC's operational needs and realities. The University of Alabama
had been the NET affiliate prior to July 1969. This arrangement was due,
in part, to "an early lack of funds for the AETC'" (Opposition, p.
4). AETC states that the assumption of the NET affiliation was preceded
by two developments. "First, NET began to provide its service by
means of long lines..."; and, "Second, more and more of its
programming came to be produced in color." (Opposition, p. 5). Since
"the microwave facilities between the University of Alabama production
center at Tuscaloosa and the AETC's Birmingham switching point were (and are)
technically inadequate for color transmission", AETC "became the NET
affiliate, and began to receive NET programming at the key Birmingham switching
point." (Opposition, p. 5). This arrangement did not alter the
ultimate control of programming which, the AETC submits, had always been in its
hands.
23. The Edwards petitioners,
in their reply, state that contrary to the implication by the AETC, petitioners
do not "seek to have the Commission dictate to AETC what programs must be
broadcast." (Edwards Reply, p. 15). Rather, "one of petitioners'
essential contentions is that the AETC has discriminated against blacks and
consequently has failed to meet the educational needs of the black community in
Alabama." (Edwards Reply, p. 15). It is noted that AETC has failed
to explain the lack of locally produced black-oriented programming. With
regard to AETC's reference to the "take it or leave it policy"
contained in the NET affiliation agreement, the Edwards petitioners note that
the agreement also has a provision for omitting objectionable material if prior
consent is obtained from NET. [*504] Yet, petitioners note,
"AETC makes no showing that it even once sought such permission from
NET." (Edwards Reply, p. 17). As to the pre-screening procedure
adopted for "Black Journal", the Edwards petitioners state.
"It defies credulity to assert that AETC could not have thought up such a
simple procedure prior to the complaint were it motivated by a concern for the
educational needs of blacks rather than by discriminatory predilections."
(Edwards Reply, pp. 18-19). The Edwards petitioners also state that the
"take it or leave it" policy of NET does not explain why the AETC
rejected a whole series of programs based upon objectionable material in one
program. While recognizing the right of AETC to exercise its discretion
in the selection of programming, the Edwards petitioners note that the AETC has
not cited "a single instance where it has exercised its discretion to bar
a NET program other than one relating to blacks." In this connection, the
Edwards petitioners state that, "if this discretion were exercised on an
impartial basis, there must be some instances where other programs were
rejected" (footnote omitted) (Edwards Reply, p. 20). Petitioner also
noted that the AETC program policy contains no prohibition on refusing to
accept programs on the basis of race.
24. The Edwards petitioners
assert that AETC's compliance with the Commission's equal employment rules is
still in doubt. Petitioners submit that it is inconsistent with AETC's
public trust to contend that it has no right or obligation to insure compliance
with the Commission's employment regulations by its program origination
centers. Finally, the Edwards petitioners state their support for AETC's
recent increase in black employees. The Edward petitioners assert,
however, that the Commission has a duty, in view of AETC's past failures, to
investigate AETC's employment structure and practices.
25. In reiterating their
assertions that AETC has infringed on constitutionally protected speech, the
Edwards petitioners refer to AETC's opposition Exhibit 14. Included in
the listing of profanities and vulgarities contained in a particular
"Black Journal" program not carried by the AETC were the following:
"Nixon is trying to strangle the second reconstruction" and
"Malcolm X was a dissenter and they (the Establishment) killed him."
Petitioners submit, "Omitting a program because of these passages is
censorship of political speech -- the cornerstone of the First Amendment and
the public interest -- and not an exercise of discretion based on bad taste or
alleged indecency." (Edwards Reply, p. 25).
26. Finally, petitioners
contend "The precise function of the Program Board remains in
dispute." (Edwards Reply, p. 26). In this regard petitioners state,
"Whether AETC effected a transfer of certain rights under its license by
becoming the NET affiliate and by assuming certain legal and de facto rights
with respect to programming decisions can only be resolved in a factual hearing
where the testimony of those who were parties to the original license
proceeding of AETC can be examined under oath. (Edwards Reply, pp.
27-28).
27. As previously mentioned,
the Commission also has before it for consideration the AETC's H.E.W. proposal for
meeting the educational television needs of Alabama's black community; the
Edwards [*505] petitioners' comments thereon; the AETC's progress
report on its proposal; and the Edwards petitioners' comments on the progress
report. The AETC proposal consists of several parts. First, a black
assistant to the program director "will design and assist in conducting a
personal interview-direct mail survey to be utilized in the determination of
specific minority needs in programming." (AETC Proposal, p. 1). The
survey, which is intended to reach at least 500 black Alabamians, will be
conducted by black college students from five geographical areas throughout the
state. After analysis of the survey data, the AETC plans to
"establish specific program or series priorities based on the results of
the survey analysis." (AETC Proposal, p. 2). Then each production
studio will "be committed and responsible to the [AETC] for a program or
series dealing with black needs..." (AETC Proposal, p. 2).
Provisions will be made for those who participated in the survey to preview the
programs and make comments and suggestions. Last minute changes would
then be made if necessary. Once an airdate has been selected for a
particular program, promotion of the program will commence. The AETC
citizens advisory committee will be asked for their evaluation of the programs
broadcast. The broadcast time of these programs will be determined from
the survey. Second, the AETC has made arrangements in cooperation with
the Alabama Center for Higher Education (a consortium of black universities and
colleges) by which these institutions will develope a series of programs
"... which will reflect subject matter and treatment as they [the schools
of the consortium] determine." (AETC Proposal, p. 4). Third, the
AETC has made contractual arrangements for on-the-job training of black
electronic engineering personnel. There is presently one trainee who,
after obtaining a first class license, will be given the first vacancy on the
AETC engineering staff. Fourth, the relationship between the AETC and the
Alabama State Department of Education is explained. Since that department
is by law responsible for instruction programming in the public schools, the
AETC defers to it in matters of instructional programming content, criteria and
subject selection. Finally, the AETC states that the Citizens Advisory
Committee has been reorganized. This committee will act as a sounding
board for the community to the AETC programming. It presently consists of
19 members, six of whom are black.
28. The Edwards petitioners in
their comments assert that the AETC proposal "is in fact designed as a
means of prying loose an H.E.W. grant." (Edwards Comments, p. 3).
They state, in this connection, that, "... whatever its merits in
satisfying H.E.W., the Proposal is not adequate to discharge AETC's
responsibilities as a Commission licensee." (footnote omitted) (Edward
Comments, p. 4). Although petitioners set forth numerous criticisms of
the AETC proposal, they assert that their criticisms are not exhaustive.
"Petitioners are merely attempting to focus the Commission's attention on
the vapidness of the Proposal and its failure to reflect Black input at any
level." (Edwards Comments, p. 7). It is asserted that the Black AETC
Assistant Program Director occupies no policy position. The Edwards
petitioners also assert that this individual is expected to [*506]
perform duties "... requiring no less than two and possibly three
persons..." (Edwards Comments, p. 8). Petitioners note that the
questionnaire is to be developed with the assistance of Samford University, a
predominantly white school. In this regard, petitioners question why the
AETC couldn't have found a black university of equal competence.
Petitioners state that there is a "total failure to provide for any Black
input in analysis of the survey returns." (Edwards Comments, p. 10).
Thus, according to petitioners, by the time blacks are introduced into the
process of program production, it is too late to compensate for the white bias
which has preceded. Petitioners also question the practicality of the
proposal for having black individuals preview the newly designed programs in
view of the desire of blacks to remain anonymous and the difficulty of taking
time to travel to the AETC studios to watch the preview. Further,
petitioners note "there are still no Blacks making decisions with respect
to the airing of nationally distributed programs of relevance, concern and/or
interest to Blacks' educational and cultural needs." (Edwards Comments, p.
15). While commending the association with the consortium of Black
institutions, petitioners urge that "... a production contract should be
arranged with one of the Black colleges." (Edwards Comments, p. 16).
Petitioners further complain that the "... AETC has done nothing to assure
adequate Black employment at its production centers." (Edwards Comments,
p. 17). With regard to the Citizens Advisory Committee, petitioners
assert that it is hardly a "grassroots sounding board," since its
members are "professionals and representatives of traditional civic
organizations." (Edwards Comments, p. 18). Petitioners also question
how the Board will function. Finally, petitioners state, "The
Proposal cannot, in any event allow AETC to escape the consequences of its past
actions. Belated upgrading or pledges of improved service cannot, in the
face of a license challenge, aid the licensee." (Edwards Comments, p. 20).
29. In the AETC's letter of
July 16, 1971, it advised the Commission of the progress which has been made
implementing its April 27th proposal. It also has amplified its relation
to the State Board of Education and has submitted more details concerning the
Citizens Advisory Board's function. Thus, AETC notes that its survey form
has been designed and it is in the process of making the final selection of 12
black college students to conduct the survey. The AETC further notes that
it has established Alabama Agricultural and Mechanical University, a
predominantly black school in Normal, Alabama, as a contract program production
agency. With regard to its cooperation with the consortium of black
institutions for creation of a series of programs developed and produced by
blacks, the AETC states that it now has expended its original plan to include
all eight schools of the consortium. Each school will develop four
programs for a 32 program series. Finally, "in order to reinforce
its sincerity and dedication to the commitment of minority involvement and
programming..." the AETC has submitted an equal opportunity program
(Section VI of the Renewal Form).
30. On August 16, 1971, the
Edwards petitioners submitted comments on the AETC updated proposal. In
essence, they conclude that [*507] the updating is not responsive
to their comments on the proposal and note that the updating "reflects the
same built-in biases of which petitioners have already complained."
CONCLUSIONS
31. As may be seen from the
foregoing, this case has been further complicated by the fact that the issues
raised on reconsideration extend well beyond the issues set forth in the
initial complaints. Pursuant to Section 1.106(c) of the Commission's
rules 47 C.F.R. 1.106(c), a petition for reconsideration which relies on facts
not previously submitted to the Commission will be granted only if the facts
relied upon (i) relate to circumstances which have changed since the last
opportunity to present such matters, or (ii) were unknown to the petitioner
until after his last opportunity to present such matters and could not have
been ascertained through the exercise of ordinary diligence. For the most
part the facts now relied upon by the Edwards petitioners were not previously
presented to the Commission. Further, it is clear that the facts
presented on reconsideration could have been ascertained prior to the
Commission's action of June 24, 1969, had the Edwards petitioners exercised the
requisite diligence. However, so that there may be no question about our
full consideration of all matters raised, we have decided to consider and rule
on every issue regardless of the time it was presented. While we are
hopeful that the approach will not encourage the injection of new issues on
reconsideration in future cases, we are satisfied that full consideration is
justified in this case.
32. The first issue raised is
whether the AETC's license renewal applications for the above-captioned
stations should be designated for hearing on the grounds that the licensee has
made no efforts to conduct a survey to determine the needs and interests of
black Alabamians. It is well established that commercial broadcasters
must conduct surveys to determine the needs and interests of their service
areas. However, the Commission has never required noncommercial
educational broadcasters such as the AETC to conduct community surveys.
In fact, the Commission has specifically exempted noncommercial educational
broadcasters from all of the requirements of its Primer on Ascertainment of
Community Problems by Broadcast Applicants, 27 FCC 2d 650 (1971), wherein we
stated that,
[given] the reservation of channels
for specialized kinds of programming, educational stations manifestly must be
treated differently than commercial stations. n2
n2 It is noteworthy that FCC Form 342, the renewal
application for noncommercial educational AM, FM and TV stations, does not
request any information concerning a noncommercial broadcasters' efforts to
ascertain the needs and interests of their service areas, which, as in this
case, often encompass more than a single service area. Compare Section IV
of FCC Form 303, the renewal application for commercial broadcasters.
33. Therefore, since we have
not imposed ascertainment requirements on noncommercial educational
broadcasters, we believe it would be inappropriate to designate the AETC's
license renewal applications for hearing on a survey issue. Instead, the
subject of requiring noncommercial educational broadcasters to conduct some
type of survey [*508] would be more appropriate for exploration in
an overall rulemaking proceeding. Furthermore, we note that the AETC is
now in the process of conducting an extensive survey to determine the needs and
interests of black Alabamians. Despite petitioners' criticisms of the
AETC's survey, we believe that the licensee is making an honest and good faith
effort to determine the particular needs and interests of black Alabamians and
that the Alabama educational television network's programming service for the
State's black population will only benefit as a result of the licensee's
efforts. We conclude, therefore, that the relief requested on this issue
is not now appropriate.
34. The next issue raised is
whether the AETC's assumption of control over the Alabama educational
television network's programming operations, including its NET affiliation
agreement, constitutes a violation of the terms of its broadcast authorizations
and Section 310(b) of the Communications Act of 1934, as amended. The
Commission's records show that the AETC was created in 1953 by Act 81 of the Alabama
State Legislature. The AETC is composed of five members appointed by the
Governor of Alabama for ten year terms, the term of one member expiring every
two years. As a supplement to the AETC there is a Program Board, which is
a policy interpreting body and acts in an advisory capacity to the AETC.
Further, the Prgram Board is appointed by the AETC. There is nothing in
the Commission's files, however, which indicates that this agency ever
predicated a grant of a broadcast license to the AETC on the condition that a
Program Board or some other inter-organizational entity exercise responsibility
over the licensee's programming operations, including its NET affiliation
agreement. Instead, when the AETC was granted its first broadcast
license, overall responsibility for programming, engineering and policy was
vested in the AETC -- the licensee. The AETC, of course, in carrying out
its functions as a licensee, may delegate certain responsibilities just as any
other broadcaster or corporate entity. However, the AETC, as licensee,
also has ultimate control over every aspect of its broadcast operations;
consequently, although the AETC may have delegated certain program functions to
its Program Board or program production centers, 38 facts do not alter the
rights vested in the AETC to revoke such delegations and to exercise full
responsibility over its programming operations. Such action does not
constitute a violation of Section 310(b) of the Communications Act. We
also conclude, therefore, that the relief requested on this issue is not
appropriate.
35. The next issue raised
concerns the AETC's programming performance. In sum, the petitioners
argue that the AETC has systematically excluded all NET programs specifically relevant
to blacks; and, further, has failed to provide a sufficient amount of local
programming to compensate for the failure to broadcast NET black oriented
programming. The petitioners also argue that the AETC has violated the
freedom of speech of black Alabamians by deleting from its program schedule
certain NET programs because of alleged vulgarities.
36. The AETC, as previously
indicated, was created in 1953 for the purpose of establishing and maintaining
an educational television [*509] network in the State of
Alabama. Since its creation, the AETC has become the licensee of eight
noncommercial television stations, namely: WAIQ (Montgomery), WBIQ
(Birmingham), WCIQ (Cheaha State Park), WDIQ (Dozier), WEIQ (Mobile), WFIQ
(Florence), WGIQ (Louisville), and WHIQ (Huntsville). The AETC is
presently operating a ninth station, WIIQ, Demoplis, under program test
authority. Also fully operational are three translator stations located
in Hamilton (W7OAN), Winfield (W7ZAN), and Guin (W7YA). Over 1000 miles
of microwave facilities interconnect these stations and all programming is
simulcast over the AETC's television stations. With regard to the AETC's
programming, the licensee has entered into contracts with the University of
Alabama, Auburn University, Montevallo University, the State Board of
Education, the Huntsville City Board of Education, the Birmingham Board of
Education, the Mobile Board of School Commissioners, and Alabama Agricultural
and Mechanical University, each of which supplies "approximately an equal
share of the more than 40 hours weekly of Alabama-originated television
programming." n3 The AETC has also entered into
agreements with the NET and Public Broadcasting Service for nationally produced
programming.
n3 See Opposition, p. 4.
37. The licenses for AETC's
various television stations have been regularly renewed since beginning their
broadcast operations. The Commission, of consider the broadcaster's
overall performance -- both favorable and unfavorable -- in determining whether
a renewal should be granted. AETC's pending renewal applications, which
set forth the licensee's operations for the preceding license term, disclose
that during a typical week the Alabama educational television network presents
29 hours (38%) of instructional programming, 11 hours and 45 minutes (15%) of
general educational programming, 6 hours and 30 minutes (9%) of performing arts
programming, 19 hours (25%) of public affairs programming, and 10 hours and 15
minutes (13%) of all other programming. Of this programming, 50 hours and
30 minutes (69%) is produced by AETC's various program production centers, 16
hours and 45 minutes (21%) is provided by networks, and 7 hours and 45 minutes
(10%) is provided by other sources. These figures disclose that the AETC's
major effort has been in the areas of instructional and educational
programming, a noteworthy effort since Alabama has the lowest per pupil
expenditure for education than that of any other state. In this respect,
the AETC produces and telecasts a large number of in-school educational
programming, which teachers throughout the state use to supplement their
regular classroom instruction. By way of example, the AETC presents
programs dealing with science, handwriting, mathematics, word study, speech
improvement, reading, and many other subjects which serve as instructional aid
in grades one through twelve.
38. The record also shows that
the AETC has broadcast a number of integrated programs. That is, from
September 1, 1969, through March 27, 1970, the AETC presented 257 integrated
programs constituting [*510] 217 hours of broadcast time. The
record also discloses that, for the period extending from September 1969
through July 1970, the AETC presented 554 integrated programs constituting 443
hours of its total broadcast time. The AETC also submits that it
broadcast 635 programs constituting approximately 299 hours of its total
broadcast schedule from September 1969 through July 1970 which were
occasionally integrated but for which it did not know the number of isolated
shows because no records were kept.
39. With regard to NET
programming the AETC acknowledges that it has refused to broadcast a number of
such programs because, in its opinion, such programs contained what it deemed
to be offensive language. Thus, in its letter of February 25, 1970, the
AETC stated:
It is interesting to note that the
programs being insisted upon as part of the AETC schedule by the U of A Faculty
Senate, College of Arts and Sciences, and an employee of the U of A Broadcasting
Services in their complaints to the F.C.C. are by name: "Black
Journal," "Soul," "The Show," "On Being
Black," and others. It should also be noted that the NET affiliate
contract requires a NET program be run in full. No editing is permitted.
For documentation there are here
listed quotes from some of the audio portions of those productions in addition
to several visual sequence descriptions:
"The Show": (Program #3,
January 25, 1970) Mason Williams said, "... The Black man has
endured a lot of bullshit really from..." Lyrics of a song by Mason
Williams included, "In our birthday suits we had a few toots and I sure
ain't talking about beers... you're the best shot I've seen in years...
I'll bet I can beat you to bed again..."
"Black Journal": (Program
#17, October 24, 1969) Contained the phrases "Screw your brother... go to
hell... damn... rats leaving crap in the corner..."
"Hospital": e8NET Special,
February 2, 1970) Discussion by a man who stated that he was a male prostitute
and that he was on welfare. A pelvic exam was being performed on a female
(draped(. A vomiting man exclaiming "shit" several times during
his 2-minute seizure. A bloodsoaked man kept on camera for three
minutes. A post-cranium performed and the brain removed during the sequence."
"Soul": (Program #6, March
11, 1970) A poem about drugs: "... Dope is shit... put shit in your
arm... mama's tears... what difference do it make, stay high sucker
chump."
"In the Company of Men":
(Net/ Journal #264, February 9, 1970) Contained several "goddams"
"... get your black ass out of here..." A statement by one of the
participants to the effect that his foreman required him to perform perverted
acts or lose his job.
"Hemiskringle": (NET
Playhouse #162, November 7, 1969) Male nude appeared on scene without any
apparent motivation. Member of the DAR desecrating the United States
flag. A group of virtually nude men and women in a pile biting the blood
out of one another and licking the blood.
"On Being Black":
("Johnny Ghost," October 8, 1969) Had a nude male shower sequence,
severing profane expressions and a confrontation between the principal
character and his wife because he wouldn't go to bed with her while in
training.
"Soul": (Preview, January
26, 1970) Song containing "Proud songs of rebellion our fathers sang...
whores... babies without fathers," also "If Wallace did not exist...
"If Agnew did not exist... beautiful, beautiful..." Then a poem
"... dine 'em, dance 'em, take 'em to bed..."
40. The NET affiliation agreement
provides, in substance, that stations will broadcast its programs in full
without any deletions, alterations, edits, or other changes. Here the
AETC determined that a number of NET'S PROGRAMS WERE NOT SUITABLE FOR
BROADCAST, NOT BECAUSE THEY PERTAINED TO BLACKS, BUT, INSTEAD, BECAUSE IN ITS
JUDGMENT [*511] they were offensive. The AETC submits however
that it has not systematically excluded all NET black oriented
programming. As previously indicated, the AETC has adopted a preview
procedure to determine whether NET programs are suitable for broadcast.
Following this preview procedure, the Alabama Educational Television network
has telecast at least three of NET's "Black Journal" programs and all
of NET's "Black Frontier" series. These programs have been
telecast since the AETC assumed full control over its NET affiliation agreement
(i.e., after July 1, 1969).
41. In Office Communication of
United Church of Christ v. F.C.C., 359 F. 2d 995 (1966), the Court stated that
the best criterion for determining whether a renewal should be granted is the
licensee's past performance. The Court stated further that the Commission
could not make an affirmative public interest finding based on a "pious
hope" for better performance because the licensee of WLBT-TV had neither
promised or demonstrated any capacity or willingness to change. As to the
need for a properly run station in Jackson, Mississippi, the Court found that
there was not sufficient evidence in the record to justify a "policy determination"
that WLBT was needed in the community. However, licensing is also
prospective in nature, in that it authorizes future operation.
Accordingly, in United Church of Christ, supra, the Court indicated that the
Commission had discretion to experiment and take calculated risks on renewal of
broadcast licenses based on the applicant's proposals for the future. For
the purposes of forecasting, of course, the Commission must review the
applicant's background for evidence as to expectable performance. As
previously noted, the record discloses that the AETC has broadcast a number of
integrated programs. Clearly, this is a fact from which the Commission
may draw inferences as to AETC's future probabilities. n4 Accordingly, we are of the opinion
that it is entirely appropriate to examine the AETC's future proposals.
This is especially true in a case such as this where one aspect of the
licensee's programming performance has been questioned and the record discloses
an otherwise outstanding service in the public interest; and, where, unlike the
circumstances presented in United Church of Christ, supra, we are concerned
with a network of noncommercial educational television stations serving a
statewide area and devoting a substantial amount of its broadcast time to instructional/educational
programming (paragraphs 37-39, above).
n4 See, footnote 5 infra, paragraph 43.
42. As delineated in its
proposal to H.E.W. of April 1971 and amplified in its letter to the Commission
of July 16, 1971, we note that the AETC is making a special effort to ascertain
the needs and interests of Alabama's black population. We also note that
the AETC has already made arrangements with eight predominately black colleges
and universities to produce 32 programs concerned specifically with the needs
of black Alabamians. In addition, the AETC has entered into a contractual
arrangement with a predominately black university to provide an additional
program origination center. Finally, we note that the AETC has undertaken
efforts to open up additional channels of communications with the black
community.
[*512] 43. The
Commission is thus faced with a difficult choice between two conflicting
considerations. On the one hand, the AETC has established one of the best
noncommercial educational television networks in the United States; and,
further, produces and broadcasts a large number of educational/instructional
programming designed to improve the quality of education for Alabamians.
In this connection, we note that the AETC's in-school programs are received in
702 elementary schools and 309 high schools, and that the licensee's broadcasts
are available to 10,025 teachers, 437,068 elementary students, and 471,295 high
school students. The foregoing facts militate against a finding that AETC
discriminated against blacks in its programming presentations. The record
also discloses that the AETC is undertaking additional efforts to improve its
service to meet the specific needs of Alabama's significant black
population. On the other hand, however, there is a charge that the AETC
has deliberately excluded a number of network programs on racial grounds and,
also, has failed to compensate for its failure to broadcast network black
oriented programming. In short, it is claimed that AETC's programming performance
has been wholly inadequate to meet the educational and cultural needs of
Alabama's blacks. Although the record discloses that the AETC has
broadcast some network offerings and rejected others, the facts available do
not otherwise provide sufficient information for the Commission to decide this
aspect of this proceeding on the bases of the pleadings. Accordingly,
without a full record of facts and adversary views that an evidentiary hearing
would provide, we believe that this aspect of this proceeding could best be
resolved by having the AETC's above-captioned license renewal applications
designated for hearing. n5
n5 As noted in paragraph 41, the Commission believes
it is appropriate to explore what efforts are being undertaken by the AETC to develop
programming to meet the needs of Alabama's citizens and, accordingly, an
appropriate issue has been added. However, in light of the evidence
adduced under Issues 1 and 2 herein, Issue 3 herein has been added without
prejudice to the rights of the parties to argue, subsequently, what weight
should be accorded the evidence adduced under Issue 3.
44. Likewise, in view of the
claim that the AETC has discriminated in its programming we believe that the
questions raised regarding the AETC's compliance with Section 73.680 of the
Commission's rules could also best be resolved in an evidentiary hearing.
In short, our rules regarding nondiscrimination in the employment practices of
broadcast licensees have been designed to achieve equality of employment opportunities.
Accordingly, issue 4 below is designed to explore whether the AETC has made
reasonable and good faith efforts to comply with the provisions of Section
73.680 of the Commission's rules. The issue set forth below however is
not designed for the purpose of exploring whether the AETC is responsible for
the employment policies and practices of its various program production
centers. The record discloses that these centers are separate entities;
e.g., the University of Alabama, Alabama Agricultural and Mechanical
University, etc. There is, obviously, a close working-relationship
between the AETC and its program production centers. However, since they
are separate entities, petitioners' claim that the AETC is responsible for
assuring that their production centers do not discriminate is not
[*513] well founded. Clearly, the AETC cannot dictate to any
independent organization, whether it be one of its program production centers,
the NET, or some other separate entity, what their employment policies and
practices should be. Also, our rules have no applicability whatsoever to
the AETC's program production centers.
45. Our action here today, in
effect, disposes of the Brown-Wright and Edwards petitions for
reconsideration. The matters set forth in the Edwards petition and the
relief sought have been considered in the issues we have adopted.
46. In view of the foregoing,
IT IS ORDERED, That the petition for reconsideration filed by Anthony Brown and
William D. Wright IS DISMISSED. n6
n6 See, however, 47 C.F.R. 1.223 which provides, in
substance, that any party in interest desiring to participate in any hearing
may file a petition for leave to intervene. See, also, 47 C.F.R. 1.225,
which pertains to participation by non-parties.
47. IT IS FURTHER ORDERED,
That the petition for reconsideration filed by Reverend Eugene Farrell, Linda
Edwards and Steven Suitts, to the extent indicated above, IS GRANTED, and, in
all other respects, IS DENIED.
48. IT IS FURTHER ORDERED,
That our action of June 24, 1970, granting the Alabama Educational Television
Commission's license renewal applications for Stations WAIQ(ED-TV), WBIQ
(ED-TV), WCIQ (ED-TV), WDIQ (ED-TV), WEIQ(ED-TV), WFIQ(ED-TV), WGIQ(ED-TV), and
WHIQ(ED-TV) IS HEREBY RESCINDED.
49. IT IS FURTHER ORDERED,
That, pursuant to Section 309(e) of the Communications Act of 1934, as amended,
the Alabama Educational Television Commission's above-captioned applications
ARE DESIGNATED FOR HEARING, at a time and place to be specified in a subsequent
Order, upon the following issues:
(1) To determine whether the Alabama
Educational Television Commission has followed a racially discriminatory policy
in its overall programming practices.
(2) To determine whether the Alabama
Educational Television Commission has broadcast programming serving the needs
of Alabama's citizens.
(3) To determine the extent of
efforts being undertaken by the Alabama Educational Television Commission to
develop programming to serve the needs of Alabama's citizens.
(4) To determine whether the Alabama
Educational Television Commission has made reasonable and good faith efforts to
assure equal opportunities in its employment policies and practices in
accordance with Section 73.680 of the Commission's Rules.
(5) To determine whether, in light
of the evidence adduced pursuant to the foregoing issues, a grant of the
Alabama Educational Television Commission's above-captioned applications would
serve the public interest, convenience and necessity.
50. IT IS FURTHER ORDERED,
That Reverend Eugene Farrell, Linda Edwards, and Steven Suitts are made parties
to the hearing ordered herein.
[*514] 51. IT IS
FURTHER ORDERED, That, in accordance with Section 309(e) of the Communications
Act of 1934, as amended, the burden of proceeding with the introduction of evidence
and the burden of proof shall be upon the Alabama Educational Television
Commission as to issues 1, 2, 3 and 4; and that the petitioners and then the
Broadcast Bureau shall follow with any evidence in their possession relevant to
those issues. Issue 5 is conclusionary.
52. IT IS FURTHER ORDERED,
That, to avail themselves of the opportunity to be heard, the Alabama
Educational Television Commission and petitioners Reverend Eugene Farrell,
Linda Edwards and Steven Suitts, in person or by attorney, shall, within twenty
(20) days of the mailing of this Order, file with the Commission, in
triplicate, a written appearance pursuant to Section 1.221(e) stating an
intention to appear on the date set for the hearing and present evidence on the
issues specified in this Order.
53. IT IS FURTHER ORDERED,
That, pursuant to Section 311(a)(2) of the Communications Act of 1934, and
Section 1.594 of the Commission's Rules, the Alabama Educational Television
Commission shall give notice of the hearing within the time and manner
prescribed in Section 1.594 and thereafter advise the Commission of the
publication thereof as required by said rule.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCURBY:
BURCH; JOHNSON (IN PART)
CONCUR:
CONCURRING STATEMENT OF CHAIRMAN
BURCH IN WHICH COMMISSIONER REID JOINS
I believe that some brief comments
are appropriate. First, the delay in acting on the petitions for
reconsideration was due in part to Commission efforts to resolve the issues
between the parties (see par. 8, majority opinion). We had here, on the
one hand, a statewide network of non-commercial educational stations that
renders important and needed service and, on the other hand, responsible
petitioners advancing in good faith their contentions. In the
circumstances, the public interest might well have been best served by a
resolution of the differences, as has occurred frequently in other recent
renewal situations. However, there has been no such resolution, and the
matter must therefore be ruled upon by the Commission in accordance with
statutory precepts.
The Communications Act is clear as
to these precepts. If "the Commission for any reason is unable to
make the finding" that the "public interest, convenience and
necessity" would be served by a grant, the Commission shall formally
designate the application for hearing. See Section 309(a) and (e), 47
U.S.C. 309(a) and (e). The agency can exercise reasonable judgment in
determining whether a particular case does present controverted factual issues
such as to require a hearing. And understandably in view of burgeoning
problems and limited staff resources, the agency may tend to exercise that
judgment at times with one eye on the need to keep the agency functioning
effectively. The courts, again understandably in view of their reviewing
role, have tended to hold the Commission fairly strictly to the letter of the
statutory provision for hearing. Thus, the Court has made
[*515] clear that the Commission does not have leeway to ignore this
statutory command on any grounds of "policy." See Office of
Communication of the United Church of Christ v. FCC 123 U.S. App. D.C. 328, 359
F.2d 994 (C.A.D.C. 1966).
This then is the general statutory
framework within which this case falls. In this case, there do appear to
be unresolved questions of fact on several issues. Therefore, the hearing
is required -- not as a penalty or punishment but simply because under the
statutory scheme, these factual matters must be clarified before the Commission
can properly make the public interest judgment called for in Section 307(d) of
the Act. That is the purpose of our action taken today.
DISSENTBY:
BARTLEY; JOHNSON (IN PART)
DISSENT:
DISSENTING STATEMENT OF COMMISSIONER
ROBERT T. BARTLEY
I dissent to rescinding the renewals
and setting them for hearing.
The action is, in my opinion, a
travesty on administrative finality. The renewals were granted on June
24, 1970. Two petitions for reconsideration were filed in July,
1970. Neither complied with Section 1.106(c) of our rules on petitions
for reconsideration. Both should have been rejected forthwith.
After a year and a half, the
Commission still makes no affirmative finding that the licensee is guilty of
claims by the petitioners. To the contrary, the Commission concludes that
(Paragraph 33), "The foregoing facts militate against a finding that AETC
discriminated against blacks in its programming presentations."
(Underscoring added). Petitioners charge that AETC deliberately excluded
a number of NET programs on racial grounds. In its denial, AETC says the
programs in question were deleted, not because they pertained to blacks, but
because, in its judgment, they were offensive. Examples are listed in
Paragraph 39 of the Order. The Commission makes no finding that the
licensee acted unreasonably in the exercise of its judgment.
To the contrary, the Commission, in
its Order, finds and concludes that, "the AETC has established one of the
best noncommercial educational television networks in the United States; and,
further, produces and broadcasts a large number of educational/instructional
programming designed to improve the quality of education for Alabamians."
The majority, on flimsy grounds,
rescind the renewals and set them down for a hearing. The reason given is
that there are not enough facts before them to "provide sufficient
information for the Commission to decide this aspect of the proceeding on the
bases of the pleadings."
What is the licensee supposed to do
-- make the petitioners' case? To me, this has the aspects of a
"nuisance suit." I dissent.
Alabama Educational Television
Reconsideration
OPINION OF COMMISSIONER NICHOLAS
JOHNSON, CONCURRING IN PART AND DISSENTING IN PART
(In re Renewal of licenses of
Alabama Educational Television Commission)
I concur with the decision of the
Commission to reconsider the renewal of these licenses, and to designate them
for hearing.
[*516] I dissent as to
the omission of issues which I believe to be of utmost importance -- unresolved
allegations of racial discrimination in programming, hiring and serving the
needs of the citizens of Alabama which have not been set for hearing.
I am also distressed by the tone of
the majority's opinion. After reciting the holding of the first United
Church of Christ case (Office of Communications of the United Church of
Christ), 359 F. 2d 995, 1007-08 (D.C. Cir. 1966), the majority goes out of its
way to emphasize what Judge (now Chief Justice) Burger relegated to only a
footnote. In the opinion, Justice Burger recognized that the most
significant criterion in deciding whether or not a renewal of a broadcast
license is in the public interest is the licensee's performance during the
previous license period. In footnote 28, at page 1008, he suggested that
it might sometimes be appropriate for the Commission to "experiment"
with promises of future service, but only after a licensee has "seen the
error of its ways." The majority today holds out that footnote as a kind
of carrot to goad the Alabama Educational Television Commission (AETC)
contritely to admit its error and promise to do better in the future. The
Commission even adds this future promise as an issue. Yet all of this
takes place in the face of fervent denials by the licensee of any
wrong-doing. In my view, suggesting that contrition justifies
experimentation when we have seen no evidence of voluntary recognition of any
wrong-doing is a totally inappropriate action for an impartial Commission to
take at this early stage of the proceeding.
Were this all that is involved, I
would undoubtedly simply concur. But three other issues are more
troubling.
The majority states that the record
thus far established militates against a finding that the AETC has followed a
deliberate exclusionary pattern against blacks in its programming
presentations. I cannot make that statement, either as a conclusion or as
a presumption. The facts are in dispute. That is precisely why we
have set the issue for hearing. To prejudge the outcome of this issue, or
even to suggest that one result seems more likely than another, makes
meaningless any further proceedings and seriously jeopardizes the integrity of
any decision reached by the hearing examiner and ultimately this Commission.
The majority fails to add an issue
on ascertainment of community needs. It notes that the Primer on
Ascertainment of Community Problems by Broadcast Applicants, 27 F.C.C. 2d 650
(1971), is applicable only to commercial broadcasters. It argues,
"since we have not imposed ascertainment requirements on noncommercial
educational broadcasters, we believe it would be inappropriate to designate the
AETC's license renewal applications for hearing on a survey issue." The
reasoning escapes me. It is true that noncommercial broadcasters are not
bound by the survey requirements of the Primer; it is manifestly not true,
however, that they therefore have no obligation to ascertain the needs and
interests of the community they serve. They need not use the precise
methods set out in the Primer, but there has never been any question that all
licensees, including noncommercial broadcasters, have an affirmative duty to
determine the needs and interests of their communities, and to program in such
a way as to meet those needs. As we [*517] said in our 1960
Policy Statement on Programming, 20 P & F Radio Reg. 1901 (1960):
The confines of the licensee's duty
are set by the general standard "the public interest, convenience or
necessity." The initial and principal execution of that standard, in terms
of the area he is licensed to serve, is the obligation of the licensee.
The principal ingredient of such obligation consists of a diligent, positive
and continuing effort by the licensee to discover and fulfill the tastes, needs
and desires of his service area. If he has accomplished this, he has met
his public responsibility.
This is a responsibility that extends to all licensees --
commercial and noncommercial alike. Thus, irrespective of the terms of
the Primer, AETC has an affirmative obligation under the public interest
standard of the Communications Act to ascertain and meet the needs of the
communities its stations serve. In the light of allegations that it has
failed to do so, the Commission nonetheless has decided not to include
ascertainment as an issue in this hearing. At the same time that the
majority fails to include past ascertainment, it demonstrates a concern about
the relevance of ascertainment in general by including an issue on AETC's
future ascertainment efforts. I cannot agree with this treatment, and
regard it as yet another attempt to wash away the sins of the past with
promises of the future.
I must dissent on another
issue. Although the majority has designated the issue of discriminatory
employment practices for hearing, it has absolved AETC from any responsibility
for compliance with the equal employment opportunity rules (47 C.F.R. �
73.680) by the program production centers which, as independent
contractors, provide roughly 40 hours of programming each week. It thus
intends to permit the continued circumvention of our established policies by
the use of these centers. I have reached no conclusions as to whether in
fact these centers do discriminate in their employment practices. But the
unwillingness of the majority even to address this issue (or rather, its
affirmative efforts to remove this aspect of the already designated issue from
consideration by the hearing examiner when the bulk of AETC programming comes
from these sources) leaves open to doubt how one might ever correct whatever
racial imbalance a hearing might show there to be in Alabama Educational
broadcasting.
I am encouraged by the decision of
my colleagues in designating these stations for hearing. My only concern
is that we are not taking the opportunity -- or exercising our obligation -- to
finally resolve the serious questions that have been raised about the operation
of the AETC during the license period in question. Fairness to AETC, as
well as petitioners, requires no less.