LEXSEE 37 F

In Re Application of THE MEREDITH CORP., OMAHA, NEBR. For Renewal of Licenses of

Stations WOW, WOW-FM, * and WOW-TV, Omaha, Nebr.

* The licensee was granted change of call letters from WOW-FM to KFMX(FM) effective December 1, 1971. Since the call letters were WOW-FM at the time Mr. Treutler filed his Petition to Deny, the call letters WOW-FM will be used throughout this Memorandum Opinion and Order for purpose of clarity.

File Nos. BR-686, BRH-1210, BRCT-39.

FEDERAL COMMUNICATIONS COMMISSION

37 F.C.C.2d 551

RELEASE-NUMBER: FCC 72-857

October 4, 1972 Released

Adopted September 27, 1972

JUDGES:

BY THE COMMISSION: COMMISSIONER JOHNSON CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT.

OPINION:

[*551] 1. The Commission has before it for consideration: (1) the above captioned applications for renewal of licenses of Stations WOW, WOW-FM and WOW-TV, Omaha, Nebraska, filed by the Meredith Corporation (licensee); (2) a Petition to Deny the renewal applications of these stations filed by Mr. Albert J. Treutler (petitioner); (3) an Opposition to the Petition filed by the licensee; and, (4) a Reply to the Opposition filed by the petitioner.

2. The Meredith Corporation timely filed its applications for renewal of licenses for Stations WOW, WOW-FM and WOW-TV on March 1, 1971. Thereafter, on April 6, 1971, Mr. Albert Treutler of Omaha filed a Petition to Deny the renewal applications of these stations. Briefly, petitioner alleges that the licensee: (a) failed to complete properly FCC Form 303; (b) failed to conduct an adequate survey of the Omaha Community including community leaders and members of the general public; (c) destroyed petitioner's political aspirations by slanted news coverage of petitioner's campaign; (d) violated the fairness doctrine; and,(e) broadcast and promoted material which appealed to the prurient interests of the listening audience. Petitioner requests that the Commission either deny the license renewals for the above-captioned stations, or order the licensee to pay petitioner $10,000 in actual damages and $35,000 in punitive damages for plagiarism and the unauthorized broadcast of copyright material.

FCC FORM 303

3. Pursuant to FCC Form 303, the renewal application form, applicants for renewal of broadcast licenses are required to report suits in the federal courts involving, "the monopolization, or an attempt to monopolize radio communications directly or indirectly through the [*552] control of the manufacture or sale of radio apparatus * * * or by using unfair methods of competition." Petitioner alleges that licensee improperly completed its renewal applications by neglecting to state that petitioner had brought suit against licensee in the federal courts for libel. However, since petitioner's suit against licensee was a suit in libel, and not monopolization or unfair competition, we find that the licensee was under no obligation to report petitioner's suit in libel on its applications for renewal of licenses for WOW, WOW-FM and WOW-TV.

COMMUNITY LEADER SURVEY

4. Petitioner next alleges that licensee conducted an inadequate community, leader survey of the needs and interests of the Omaha community, in that the survey submitted by licensee is "so shallow and without depth it almost appears as an intentional attempt to mislead the Commission." Petitioner states that the survey did not include interviews with United States Senators or Congressmen, Omaha City Councilmen, policemen or members of the Republican or Democratic parties. In addition, according to petitioner, licensee neglected to interview a sufficient number of representatives of the following community groups: agriculture, education, business, church, women, civic and community, minority and charitable. Petitioner further alleges that licensee's survey raises questions concerning the good faith efforts made by licensee to ascertain the needs and interests of the Omaha community. In its Opposition, licensee states that petitioner's allegation with respect to its community survey is an effort to substitute his judgment for that of licensee in the selection of community leaders and members of the public. Licensee further states:

Since it is clear that no licensee can contact every single community leader and every single member of the public it is relatively easy for a party such as Mr. Treutler to criticize a community survey simply by mentioning some parties that were not included in the survey.

5. An examination of licensee's survey of community leaders discloses that licensee interviewed 112 community leaders and did, in fact, interview representatives of many of the groups mentioned in petitioner's pleading. In addition to numerous other consultations, licensee consulted with 13 government leaders, 8 church leaders, 11 agricultural leaders, 12 educational leaders, 6 business leaders, 13 minority group members, 7 representatives from women's groups and 8 welfare group representatives. In our Public Notice re: Ascertainment of Community Problems, 27 FCC 2d 650 (1971), we indicated that broadcast applicants -- including renewal applicants -- are expected to provide full information on their awareness of and responsiveness to local community problems through consultations with a cross-section of community leaders. In short, in view of the number and character of the persons interviewed, we are satisfied that the licensee has ascertained the problems of its service area from a representative cross-section of community leaders in that area.

[*553] SURVEY OF THE GENERAL PUBLIC

6. Petitioner also alleges that licensee's "Cross Interest" survey, a mail survey sent to a cross-section of licensee's service area, is invalid due to the fact that licensee offered monetary incentives to those who returned the questionnaire. According to petitioner, "It has long been an accepted fact among professional surveyors that payment or incentives for answers tend to supply misleading or inaccurate survey results." Petitioner also states that licensee placed an almost total dependence on the mail survey, instead of personal interviews as required by the Commission. Licensee, in its renewal application, states that the purpose of the "Cross Interest" survey was to obtain detailed responses which would help to achieve four goals: (1) to examine the attitudes of those interviewed toward their local, individual communities, as well as toward the general viewing listening area; (2) the identify the problems of the community; (3) to provide a basis for program development for licensee's stations; and, (4) to obtain additional data and information not obtained from the community leader survey and the demographic report. n1 In order to accomplish this, licensee mailed 646 questionnaires in November of 1970 which provided stamped, self-addressed return envelopes and an incentive of 25(. Three weeks later an additional mailing was made to non-respondents which contained a one dollar bill as an incentive. By December 1970 the licensee had received 451 completed questionnaires, or 70% of the original 646 which were mailed. Furthermore, telephone interviews were then conducted among a random sample of those who had not responded by mail and 73 completed telephone interviews brought the return rate to 81%. In addition, licensee learned that, although the response rate was 81%, the response rate in ghetto areas was only 65%. Licensee then conducted personal interviews among ghetto residents which resulted in 530 completed interviews out of the 646 originally mailed.

n1 In selecting proposed respondents for the "Cross Interest" survey, licensee first selected a sample of counties in the stations' service area using controls based on population density. Licensee then selected the names and addresses of respondents at random from telephone directories in the counties selected.

7. As a result of this "Cross Interest" survey, licensee submitted a detailed analysis consisting of approximately 70 pages, including an extensive analysis of community problems and needs. With respect to petitioner's allegation that licensee's survey is invalid due to the monetary incentives offered by licensee to respondents, licensee denies this allegation and states that its community survey was scientifically valid. In our Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 FCC 2d 650 (1971), we stated that mail surveys where respondents are requested to voluntarily return a questionnaire by mail produce a strong "cooperation bias" that renders the information gathered by such a survey almost meaningless. However, the "voluntary return" referred to in the Primer refers to a mail survey where a licensee relies solely on the respondent's efforts to return the completed survey without any further efforts on the part of the licensee to see that the survey is completed and returned. This is not the case here. Licensee, after mailing the original questionnaires, made extensive efforts to see that the respondents returned those questionnaires. [*554] Licensee's efforts included telephone calls and personal interviews. In addition, we fail to see how a monetary incentive could prejudice or bias a random survey of the needs, interests and problems of the Omaha community. Our Primer requires, in addition to a survey of community leaders, a survey of a random sample of the general public which should be designed to further ascertain community problems which may not have been revealed by consultations with community leaders. Based on the foregoing facts, it is clear that the licensee has complied with our requirements and, accordingly, we find that petitioner has failed to substantiate his position.

COVERAGE OF PETITIONER'S MAYORALTY CAMPAIGN

8. Petitioner next alleges that licensee destroyed his political aspirations through the use of secretive news acquisition, camera technique, editing, inference and innuendo. Petitioner states that he was a candidate for mayor; that licensee interviewed him for a television story during his campaign; that during this interview licensee's newsman questioned him concerning his ownership of the Ade Book Company; and that, when the interview was broadcast, licensee also included film segments and made comments regarding an advertisement for the book, "Parody of Marital Love, 12 Modern Positions", a book published and distributed by petitioner. The effect of this, according to petitioner, was to convey the illusion that petitioner was a peddler of obscene literature. Petitioner later brought suit against licensee in a federal court in Nebraska for libel. Although licensee was granted summary judgment, petitioner states that he intends to appeal the case. n2 With respect to this issue, licensee states:

n2 By letter dated February 14, 1972, counsel for licensee informed the Commission that on February 1, 1972, the U.S. Court of Appeals for the Eighth Circuit affirmed the summary judgment against petitioner and in favor of the Meredith Corporation.

Treutler's other assertions growing out of the broadcast in which he was featured are involved in the appeal in Mr. Treutler's civil litigation and we think it sufficient to say that his rights, if any, are being asserted in court and the Commission need not involve itself in the dispute with him.

9. It is not clear from the foregoing facts whether petitioner is alleging that the licensee violated the Commission's personal attack rules or deliberately distorted or slanted WOW's news coverage of his campaign for mayor. Based upon our review of the transcript of WOW's interview with petitioner, however, it is clear that the licensee did not attack his honesty, integrity or character in violation of Section 73.124, 73.300 or 73.679 of the Commission's rules. Instead, the facts show that the licensee was attempting to make known to the public petitioner's affiliation with the Ade Book Company. The Commission, of course, will not inquire into licensee's news presentations for, obviously, if we were to do so such action would constitute an attempt by this agency to substitute its judgment of news values for those of the licensee. Furthermore, as we have consistently maintained, the Commission does not consider it appropriate to conduct inquiries regarding a licensee's news presentations unless there is extrinsic evidence of deliberate distortions or staging of the news. Letter to ABC, et al., 16 FCC 2d 650 (1969); Hunger in America, 20 FCC 2d [*555] 193 (1969). When we refer to cases involving extrinsic evidence, we do not mean the type of situation presented in this case where, as the facts show, the petitioner merely claims that the licensee's newsmen "proceeded to interrogate him about his personal and private business, a subject [he claims] in no way [was] relevant to his potential 'official conduct or ability' to serve in public office." In the absence of extrinsic evidence, we are of the opinion that no further action is warranted regarding this aspect of petitioner's complaint.

FAIRNESS DOCTRINE VIOLATIONS

10. Petitioner also claims that licensee used its broadcast facilities to propagandize its support of a local urban renewal issue. Petitioner alleges that licensee, on at least three occasions during the past renewal period, presented special programming which supported the urban renewal issue, slanted its coverage of the issue and made no efforts to present the other side of the issue. Petitioner also claims that licensee refused to recognize his advertising agency which attempted to purchase spot announcements on behalf of the Taxpayer's Union in opposition to the urban renewal issue. In reply, licensee states that it did not reject any material for the Taxpayer's Union but simply refused to recognize petitioner as an advertising agency. Licensee also states that petitioner's complaint, in substance, is based on the fact that he was not recognized as an advertising agent, who wished to receive a commission on advertising for the Union.

11. Briefly, the fairness doctrine requires a station which presents one side of a controversial issue of public importance to afford reasonable opportunity for the presentation of significant contrasting viewpoints on the issue in its overall programming, which may include news programs, interviews, discussions, debates, speeches and the like. It has been longstanding Commission policy to require fairness doctrine complainants to (a) specify the particular broadcast in which the controversial issue was presented, (b) state the position advocated in such broadcast, and (c) set forth reasonable grounds for concluding that the licensee in his overall programming has not attempted to present opposing views on the issue. Here the petitioner has made only a general allegation that the licensee has been unfair in its treatment of a local urban renewal issue. As we stated in our letter to Allen C. Phelps and the Federation of Citizens Associations of the District of Columbia, 21 FCC 2d 12 (Nov. 25, 1969), "[absent] detailed and specific evidence of failure to comply with the requirements of the fairness doctrine, it would be unreasonable to require licensees to disprove allegations such as those made here." In sum, where, as here, the complainant only makes general allegations of unfairness, it is not unreasonable that the burden be placed on the complainant to come forward with some evidence showing a basis for his complaint that a licensee has failed to meet the requirements of the fairness doctrine. Based upon our review of the foregoing facts, it is obvious that the petitioner has failed to do so here and, accordingly, we are unable to conclude that the licensee violated the fairness doctrine with respect to the urban renewal issue.

[*556] 12. Likewise, we are unable to conclude that the licensee deliberately distorted or slanted its coverage of the urban renewal issue. Here, too, the allegations are general in nature, and since they are accompanied by no extrinsic evidence of deliberate distortions or slanting, they do not raise a substantial or material question of fact necessitating a hearing. Letter to ABC, supra; Hunger in America, supra.

LICENSEE'S PROGRAMMING

13. Finally, petitioner alleges that licensee has repeatedly "used promotion on their own behalf intended to appeal to prurient interests." Specifically, petitioner states that WOW-TV broadcast such provocative movies as "Splendor in the Grass", "The Love Nest" and "The Stripper" and that the copy printed in the local television guide, such as "titillating, tantalizing and erotic" have no other purpose than to appeal to the prurient interests of juveniles and adults alike. Section 326 of the Communications Act specifically prohibits the Commission from censoring broadcast matter; thus, the selection of specific program material is left to the discretion of the broadcast licensee. We have stated:

Although the Commission must determine whether the total program service of broadcasters is reasonably responsive to the interests and needs of the public they serve, it may not condition the grant, denial or revocation of a broadcast license upon its own subjective determination of what is or is not a good program. To do so would "lay a forbidden burden upon the exercise of liberty protected by the Constitution." Report and Statement of Policy Re: Commission En Bank Programming Inquiry, 25 F.R. 7291 (1960) at 7293.

Although certain programs may be offensive to listeners or viewers, those offended do not have the right, through the Commission's licensing power, to remove such programming from the air. Memorandum Opinion and Order: In re Pacifica Foundation, FCC 64-43 (1964). We fail to see how language such as "titillating, tantalizing and erotic", employed by licensee in the promotion of motion pictures, can be characterized as having "no other purpose than appeal to the prurient interests of juveniles and adults" as alleged by petitioner. Moreover, although the broadcast of obscene, indecent or profane language is prohibited by federal statute (18 U.S.C. 1464), petitioner does not allege that such language was broadcast by WOW-TV. In light of the above, we find that petitioner has failed to submit any information which raises a question concerning WOW-TV's choice of program matter.

14. With respect to petitioner's request that the Commission order licensee to pay $10,000 in damages and $35,000 in punitive damages, neither the Communications Act of 1934, as amended, nor the Commission's Rules provide for the payment of damages to petitioners in proceedings involving Petitions to Deny. Accordingly, petitioner's request for damages IS DENIED.

15. In view of the foregoing, IT IS ORDERED, That the Petition to Deny the license renewal application for Stations WOW, WOW-FM, and WOW-TV submitted by Albert Treutler IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

CONCURBY: JOHNSON (IN PART)

DISSENTBY: JOHNSON (IN PART)

DISSENT:

[*557] OPINION OF COMMISSIONER NICHOLAS JOHNSON, CONCURRING IN PART AND DISSENTING IN PART

A Mr. Albert Treutler brought a petition to deny the license renewals of stations WOW-TV, WOW (AM) and WOW-FM in Omaha, Nebraska. He charged that the Meredith Corporation, licensee of these three stations, (1) failed to complete properly the FCC's 303 form, (2) failed to conduct a survey of the needs of the Omaha community as required by the Commission, (3) destroyed petitioner's political aspirations by slanted news coverage of his mayoralty campaign, (4) broadcast material which appealed to prurient interests, and (5) violated the fairness doctrine.

The majority, perhaps feeling Mr. Treutler has not raised enough issues to warrant a hearing, dismisses the petition and grants the renewal. Although I concur in some of its language, I dissent from its ultimate action, and will discuss the fairness complaint as an illustration of our differences.

Mr. Treutler's fairness charge alleges that, on at least three occasions, the licensee presented programming in support of a local urban renewal issue. When the petitioner's advertising agency attempted to purchase spot announcements on behalf of the Taxpayers' Union -- in opposition to the urban renewal issue -- the licensee refused to sell such time. The licensee responds that it did not reject material from the Taxpayers' Union, but simply refused to recognize the petitioner as an advertising agency.

In the face of this obvious factual dispute, the majority dismisses the complaint, contending that it fails to provide "detailed and specific evidence" of a fairness doctrine violation.

What this Commission has never really learned is that it is its responsibility to enforce the Communications Act of 1934. In fact, the agency does virtually no enforcement whatsoever on its own motion (with the exception of certain technical matters). We make no effort -- I repeat no effort -- to monitor the programming of stations to see if they are running more commercials per hour than promised, if they are charging advertisers for commercials not broadcast, if they are running the news and public affairs programming promised -- or if they are violating the fairness doctrine. We rely wholly upon public complaints. The argument is often made by FCC Commissioners or staff that an individual station must be doing a good job because we have received no complaints.

However questionable this administrative approach may be, let us accept it for the moment for purposes of argument. The question then arises, "OK, what does the Commission do when it does get a complaint?" The fact is that the Commission does little or nothing. The complainant may get a form letter. The only exceptions are those complainants who know to phrase their "letters" in the form that lawyers recognize as a "fairness complaint" or a "petition to deny license" or some other of the FCC's modern-day equivalents of the old common law rites -- mysterious forms without which you could not get into an old English court. Such complainants do not get little or nothing. They get something much worse: hostile reaction and obstructionism.

[*558] It is one thing for the government to look to citizens to help it enforce the law. It is quite another for government to put upon the citizen the full burden of performing every detail in precisely the right way.

In my judgment, the FCC has the responsibility to do at least some enforcement of the law on its own motion.

If, however, it is going to rely entirely upon citizens complaints, it then has at least a moral obligation to act upon them.

I think that we should appreciate a citizen's effort -- that he is even entitled to a word of thanks. If his facts are not complete, if his compliance with our forms and procedures indicates that he has not had the services of a sophisticated member of the Federal Communications Bar Association who took his on-the-job training here at the Commission, then the responsibility shifts from his shoulders to those of the FCC.

If the Commission cannot even bring itself to that level of law enforcement, if it insists on maintaining a hostile adversary role toward the public it is supposed to serve, then the very least the law requires is that the ostracized citizen be treated fairly.

If the Commission is going to demand of a citizen a further factual basis for a fairness doctrine charge, it owes the complainant no less than a notification of that fact and an accompanying reasonable opportunity to amend his complaint. That was not done in this case.

When the problem involves a factual dispute, as in this case, it seems to me there is simply no alternative to a further inquiry by the FCC before dismissing the complainant out of hand.

However significant this case may be in its own right -- and it is not an insubstantial matter -- it takes on a far greater significance as an illustration of the much more general failing of the Commission to do its job in a manner even remotely befitting a public body.