In Re Application of CHICAGO FEDERATION OF LABOR AND
INDUSTRIAL UNION COUNCIL For Renewal of License for Station WCFL, Chicago, Ill.
File No. BR-3735
FEDERAL COMMUNICATIONS COMMISSION
38 F.C.C.2d 417
RELEASE-NUMBER: FCC 72-1079
December 8, 1972 released
Adopted November 29, 1972
JUDGES:
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.
OPINION:
[*417] 1. The
Commission has before it for consideration: (i) the above-captioned license
renewal application for Station WCFL, Chicago, Illinois, filed September 1,
1970, by the Chicago Federation of Labor and Industrial Union Council,
hereinafter referred to as the licensee; (ii) a petition to deny the
above-captioned license renewal application, filed November 2, 1970, by three
Chicago based community organizations, hereinafter referred to as the
petitioners; (iii) licensee's opposition to the petition to deny, filed June 1,
1971; and (iv) petitioner's reply pleading, filed August 4, 1971.
Standing
2. Section 309(d)(1) of the
Communications Act of 1934, as amended, 47 U.S.C. 309(d)(1), as implemented by
Section 1.580(i) of the Commission's rules, 47 C.F.R. 1.580(i), provides that
any party in interest may file a petition to deny any application. Where
a petition to deny is filed, it must be filed on or before the first day of the
last full calendar month preceding the license expiration date of the station
involved. The instant petition was filed on November 2, 1970, by the
Better Broadcasting Council, Inc., the Task Force for Community Broadcasting,
and the Illinois Citizens' Committee for Broadcasting. Each of these
organizations is described in the petition as a Chicago based group concerned
principally with the rights of the listening public and members of minority
groups. The petition is signed by several persons in their individual
capacity as residents of Chicago and as agents for the organizations briefly
described above. It is clear, therefore, that the petitioners have
standing as parties in interest under Section 309(d)(1) of the Communications
and Section 1.580(i) of the Commission's rules. Office of Communication
of the United Church of Christ v. Federal Communications Commission, 359 F. 2d
994 (1966). [*418] 3. Petitioners request that WCFL's license
renewal application be designated for hearing on issues designed to explore the
licensee's ascertainment efforts, proposed programming, commercial practices,
and program logging practices. The petitioners also state that issues
should be designated to explore the facts and circumstances surrounding the
licensee's dismissal of a WCFL news announcer and whether the licensee
negotiated in good faith with petitioners.
4. The licensee, in its
opposition, initially contends that the petition does not meet the statutory
requirements of Section 309(d)(1) of the Communications Act.
Specifically, the licensee claims that the petition does not contain specific
allegations of fact sufficient to show that a grant of the application would be
prima facie inconsistent with the public interest. The licensee also
contends that the affidavits attached to the petition are defective because
they all contain the following identical language:
That I have
read the foregoing petition and that the allegations of fact contained therein
are, to the best of my knowledge, true, except for those items referred to on
information and belief, which I believe to be true.
5. Section 309(d)(1) of the
Communications Act provides that, where a petition to deny is filed, it must
contain specific allegations of fact sufficient to show that a grant of the
application would be prima facie inconsistent with the public interest.
Also, the petition must be supported by affidavit of a person or persons with
personal knowledge of the facts contained therein. As will be noted
herein, several of the matters raised in this proceeding are unsupported
conclusions, assertions on subjective judgment, or allegations based on
information and belief. The allegation of ultimate conclusionary facts or
mere general allegations based on information and belief, supported by general
affidavits, are not sufficient to require an evidentiary hearing. Stone
v. FCC, Case No. 71-1166, D.C. Cir., June 30, 1972. Further, the
affidavits in this proceeding are pro forma affidavits which, in part attest to
certain facts on "information and belief". A valid question is,
therefore, raised as to whether such affidavits comply with the statutory
standards of Section 309(d)(1) of the Communications Act. None-theless,
we have decided to consider the petition on its relative merits and issue our ruling
accordingly.
Ascertainment -- Proposed
Programming
6. Petitioners' initial
allegation is that the licensee of WCFL has failed to ascertain the needs and
interests of the community. Petitioners state that of 257 "community
leaders" interviewed by the licensee only one-half of one percent
considered themselves representatives of the "racial"
community. Petitioners submit that blacks constitute 34.2 percent of
Chicago's population and blacks and other minorities constitute 44 percent of
Chicago's population. Petitioners conclude, therefore, that the
licensee's ascertainment process is not representative of the composition of
the community as required by the Commission's proposed Primer on Ascertainment
of Community Problems by Broadcast Applicants, 20 FCC 2d 880 (December 19,
1969). Petitioners also state [*419] that the licensee's
inclusion of 49 students among the "community leaders" interviewed
without listing the name, position, and organization of each student is contrary
to Question and Answer 21 of the Proposed Primer, supra. Petitioners
further state that some of the "community leaders" interviewed were
not even residents of the Chicago area. Finally, petitioners state that
the licensee's "haphazard contacting of a few people it classified as
'man-on-the-street'" is not sufficient to create the required survey of a
representative range of the general public.
7. In opposition, the licensee
submits that in excess of 38 percent of persons interviewed were members of
minority groups. The licensee also submits that in excess of 30 percent
of the organizations consulted "have interests primarily designed to
benefit members of minority groups" while approximately 60 percent are
non-racial. The licensee notes that Commission policy allows the broadcasters
to select which leaders should be consulted based on their determination of the
composition of the community. In this respect, the licensee states that
its selection of leaders was based upon consideration of census data and the
Local Community Fact Book prepared by the Chicago Community Inventory at the
University of Chicago. In response to the allegation that non-residents
of the Chicago area were interviewed, the licensee states that, even excluding
the non-resident interviewees, there were more than enough persons interviewed
for the ascertainment to be valid. Finally, the licensee states that the
students interviewed were part of the general public ascertainment and that the
requirements contained in the Proposed Primer, supra, concerning identification
of interviewees applies to community leaders, not to members of the general
public.
8. In reply, petitioners state
that the licensee's claim that 38 percent of the persons interviewed for
community ascertainment were members of minority groups, and that in excess of
30 percent of organizations represented by persons interviewed "have
interests primarily designed to benefit members of minority groups," is
completely unsubstantiated. Petitioners also state that of the entire list
of 257 persons interviewed by the station, only 21 (less than 12 percent)
"could possibly be identified as minority leaders." Petitioners
dispute the licensee's assertion that it conducted a "random sample"
survey of members of the general public, and argue that the station is
inconsistent to its own advantage as to whether to classify the 49 student
interviewees as part of the community leader survey or part of the general
public survey. Petitioners also contend that many of the
"interviewees" were not consulted specifically for the purpose of
ascertaining the needs of the community. Instead, petitioners submit that
some of the interviewees were interviewed during ordinary news coverage or
during the course of other programs. Petitioners also maintain that the
interviews were not conducted by "top level employees" as required by
Question and Answer 11(a) of the Proposed Primer, supra.
9. In connection with the
above, petitioners also claim that WCFL's application does not satisfy the
requirement of Question and Answer 30 of the Proposed Primer, supra, which
requires applicants to specify what program proposed will meet what community
problem. Petitioners claim further that WCFL's application does not
satisfy the requirements [*420] of Question and Answer 33 of the Proposed
Primer, supra, which requires that the applicant's proposed programming be
identified "by title, time segment, duration, frequency and
description." Petitioners submit that WCFL has only vaguely stated that it
will deal with several issues such as pollution and narcotics.
Petitioners claim that this makes it impossible for members of the public to
ascertain the exact nature of WCFL's proposed programming.
10. In opposition, the
licensee states that its renewal application represents that it will broadcast
one-hundred and two public affairs documentary programs of 30 to 60 minutes
duration dealing with community problems, including educational opportunities,
housing, narcotics, air pollution, waste disposal, health and welfare, and
youth opportunities. In addition, the application pledged to present
public service announcements for a variety of organizations. The licensee
asserts that its past performance as reflected in its renewal application is an
adequate basis for the station's reliability in implementing its
representations. In reply, however, petitioners state that the licensee's
statement that it will present 102 documentaries and special programs of 30 to
60 minutes duration during the license period means that the licensee is pledging
an average of less than 30 minutes per week of this type of programming, and
they argue that this amount (constituting less than one-half of one percent of
the station's weekly programming) is clearly inadequate.
11. Part I, Question I of
Sections IV-A (Radio) and IV-B (television) of FCC Form 303, the license
renewal application, requires applicants to set forth information on the
methods used to ascertain community problems and programming matter proposed to
deal with the problems ascertained. By action of December 19, 1969, 20
FCC 2d 880, the Commission issued a Notice of Inquiry and Proposed Primer
dealing with the subject of ascertainment of community problems by broadcast
applicants. The Proposed Primer was issued to help clarify the
requirements of Part I, Question 1 of Sections IV-A and IV-B of the various
broadcast application forms, including FCC Form 303. By Report and Order
adopted February 18, 1971, released February 23, 1971, 27 FCC 2d 650, the
Commission issued its final Primer on Ascertainment of Community Problems by
Broadcast Applicants.
12. In its initial submission
under Part I, Question 1 of Section IV-A of WCFL's license renewal application,
the licensee described the methods used to ascertain the problems of the public
served by the station and the programming matter it intended to broadcast to
cover the problems discovered. At the outset the licensee described
WCFL's service area and the methods used to determine the composition
thereof. The licensee then set forth a list of a large number of
community leaders and other persons interviewed. This list included
members of the general public and representatives of various governmental,
educational, religious, entertainment, agricultural, youth, ethnic, racial, labor,
and professional groups and organizations. Each of the community leaders
interviewed was identified by name, position and organization. The
licensee then set forth an inclusive listing of the problems ascertained and
outlined the programming it proposed to broadcast to cover what it deemed to be
the most significant problems discovered. The licensee also represented
that these programs would be [*421] 30 to 60 minutes in length and
would relate to various local needs and interests.
13. As previously noted, the
license renewal application for WCFL was filed September 1, 1970.
Following adoption of the Commission's final Primer, supra, broadcast
applicants were advised that, if necessary, they could amend their survey
showings to comply with the new requirements. See Primer, supra, at p.
680. Accordingly, subsequent to the filing of WCFL's license renewal
application the licensee filed two amendments relative to its ascertainment
efforts. Both of these amendments were served on the petitioners.
47 C.F.R. 1.522. The first amendment, dated September 15, 1971, consisted
of a survey of the general public in the Chicago area and was conducted for the
licensee under the direction of Dr. Frank J. Svestka, Jr., an Assistant
Professor at the School off Business, Loyola University, Chicago. This
survey was based on a total sample of 400 persons. A breakdown of this
sample discloses interviews with 82 white males over 30 (20.5%), 90 white
females over 30 (22.5%), 45 white males under 30 (11.3%), 44 white females under
30 (11.0%), 36 black males over 30 (9.0%), 25 black females over 30 (7.3%), 29
black males under 30 (7.3%), and 49 black females under 30 (12.3%).
Further, a comparison of this sample with 1970 Bureau of Census Population Data
shows that the interviews with whites, who represent 65.6% of the population,
constituted 65.3% of those surveyed, and that the interviews with blacks, who
represent 32.7% of the population, constituted 34.8% of those surveyed.
This amendment also set forth the problems ascertained through the general
public survey.
14. The second amendment,
dated September 17, 1971, consisted of a survey of persons who are primarily
black leaders in the Chicago area. Specifically, this survey consisted of
interviews with 27 black community leaders and enumerated the problems cited by
them as significant and current, namely, (1) unemployment; (2) housing -- i.e.,
lack of decent housing for low, moderate and middle income families; (3) lack
of adequate educational opportunity, particularly for minorities; (4) racial
problems -- i.e., segregation, racial relations and racism; (5) deterioration
of the inner city and exodus of industry, talent, capital and people to the
suburbs; (6) crime/youth problems; (7) economy -- i.e., lack of sources of income
to minority group members to establish their own business; and inflation; (8)
improved health education, hygiene and facilities; and, (9) inadequate law
enforcement.
15. In the foregoing
amendments licensee noted that it was in the process of evaluating the findings
and would submit an additional amendment upon completion of its
evaluation. Accordingly, on November 8, 1971, licensee filed another
amendment (also served on petitioners) to WCFL's renewa application wherein it
set forth additional typical and illustrative Public Affairs programs it had
planned and designed to deal with the problems ascertained through its
community surveys. These proposals set forth the titles of the programs,
a description of the programs, their scheduled time-segments, duration and
intended frequency of broadcast.
16. Petitioners have raised
several questions relating to the adequacy of the licensee's initial
ascertainment efforts, particularly as they related to the minority community,
and its proposed programming. Any [*422] questions about the
licensee's initial ascertainment efforts have been corrected by the licensee's
amendments of September 15 and 17, 1971, and November 8, 1971. That is,
measured against the standards contained in the Primer, supra, it is clear that
the licensee has consulted with a representative cross-section of community
leaders, including minority leaders, and a random sample of members of the
general public. Further, the interviews with community leaders and
members of the general public elicited specific and meaningful information
concerning community problems. The community problems mentioned were
enumerated by the licensee and the licensee has proposed programming which it
deems responsive to its evaluation of such ascertained problems. In
short, in view of the number and character of persons interviewed, we are
satisfied that the licensee has ascertained the problems of its service area
from a representative cross-section of persons in that area; and, further, has
proposed sufficient programming to meet the problems discovered. Further,
since petitioners' allegations relate to the licensee's unamended showing, and
since petitioners have not addressed themselves to the relevance of the
licensee's amendments, we conclude that a hearing is not warranted on this
aspect of WCFL's license renewal application.
WCFL's Commercial Practices
17. Petitioners' also allege
that WCFL has engaged in excessive commercialization. In support of this
charge, petitioners note that the licensee states that WCFL conforms to the
Code of the National Association of Broadcasters, which provides that radio
stations should present no more than 18 minutes of commercial material per
hour. Petitioners state, however, that WCFL's renewal application
discloses that during the composite week it exceeded 18 minutes of commercial
matter per hour four times. Petitioners also note that WCFL's renewal
application states that the 18 minute limitation will not be violated
"except during political campaigns or extraordinary emergency
situations." Petitioners submit that there was no political campaign or
emergency situation when the station exceeded its commercial limitation during
the composite week. Petitioners also submit that it is particularly
significant that the four hours during which the 18 minute limitation was
exceeded occurred during "rush hour" traffic time when tens of
thousands of people are listening to their car radios. Petitioners also
criticize the licensee for increasing the total amount of commercial time from
11% in 1967 to 12.3% in 1970, an increase of 1.3%.
18. In opposition, the
licensee notes that its renewal application indicates that it exceeded 18
minutes of commercial material in only four of the 136 hours in the composite
week. The licensee also notes that WCFL's renewal application indicated
that these statistics were not representative of the station's commercial
practices. Rather, the licensee states that these excesses reflected a
shortcoming of the station's former traffic system and that the present traffic
system makes it impossible for such an inadvertent mistake to occur.
Also, the licensee submits that WCFL's increase in commercial time from 11% to
12.3% is well below the industry standard of 30%. The licensee also
[*423] submits that petitioners have not challenged other stations in the
Chicago market which have commercial continuity in excess of that of
WCFL's. In their reply, petitioners state that if the Commission accepts
the licensee's excuse then any station can over-commercialize to whatever
extent it desires and then point to similar flaws which have allegedly been
remedied when questioned by the Commission.
19. In its 1967 renewal
application the licensee indicated that its limit on commercial matter would be
18 minutes per hour "except during political campaign or extraordinary
emergency situations." The fact that the station exceeded the 18 minute
limit four times (by seven seconds, forty seconds, forty seconds and one
minute) during the composite week reported in the pending application does not
convince us that we or the public have been victims of misrepresentation.
The licensee states that the excesses were the product of inadvertence and that
the system which allowed such inadvertence has been corrected to eliminate that
possibility in the future. Petitioners' argument seems to be that any
excess over the station's stated maximum constitutes deceit; we are willing to
accept the possibility that human error could produce an occasional excess over
the stated maximum and do so in this case.
20. we also note that the
Commission has refrained from adopting rules governing the amount of commercial
time which may be carried in any 60 minute segment. The Commission has,
however, expressed concern with the problem of apparent over commercialization
in broadcast station operation; and, in this respect, has taken steps to advise
the industry as to the amount of commercial time the Commission believes to be
within an acceptable norm without denying the right of each broadcaster to make
his own different judgment on any reasonable basis in terms of his particular
situation. Hence, by letter dated February 13, 1970, addressed to Station
WXCL, Peoria, Illinois, the Commission, in substance, expressed approval to a
commercial policy which provided for a normal commercial ceiling of 18 minutes
in each hour with specified exceptions permitting up to 20 minutes in each hour
during no more than 10 percent of the station's total weekly hours of operation
with a further exception permitting up to 22 minutes where the excess over 20
minutes is purely political advertising. Based on these guidelines, which
have become known throughout the industry as the WXCL standards, it is clear
that WCFL's commercial overages during only four hours of its total broadcast
time are, in fact, de minimus. We see no decisional significance in the
fact that WCFL's overages occurred during rush hour or drive-time.
Petitioners have made no attempt to relate how the licensee's proposed
commercial policy of 12.3% is contrary to the public interest or why this
policy, which is in fact lower than other stations in the market, can be
properly characterized as "over commercialization".
Program Logging Practices
21. Petitioners also allege
that the licensee has misrepresented WCFL's past programming by improperly
logging music programs as Public Affairs presentations. In support of
this charge, petitioners submit that the licensee has misclassified two
programs -- namely, The [*424] Dick Williamson Show and The Dick
Biondi Show -- as Public Affairs programs even though they consist almost
entirely of music. In opposition, the licensee submits that The Dick
Williamson Show was properly classified as Public Affairs because it involves
guest speakers who respond to questions from the public on the air. The
licensee also submits that The Dick Biondi Show, which involves taped telephone
conversations with Vietnam veterans and their relatives, may have been
misclassified. In reply, the petitioners reassert their claim that the
programs in question are purely entertainment because they are interspersed
with musical content. In addition, petitioners claim that the licensee
has misclassified other programs as Public Affairs.
22. Based upon our review of
the foregoing facts we conclude that there is some merit to petitioners'
assertion that The Dick Biondi Show may have been misclassified as Public
Affairs; The Dick Williamson Show was properly classified. However, we
are unable to conclude that such misclassification raises a substantial and
material question of fact which would require resolution after an evidentiary
hearing.
23. Classification of
programming presents a difficult and close question. Experience has shown
that licensees often have difficulty in differentiating between the various
program classifications set forth in the Commission's rules and broadcast
application forms. However, absent other evidence, the mere fact that a
licensee misclassifies one or two programs does not compel the conclusion that
the licensee is guilty of intentional wrongdoing. Here, the
misclassification of the contested program as entirely Public Affairs is, in
our view, no more than a mistake in judgment, not deception. Further, the
contested program has Public Affairs characteristics and, thus, it would have
been entirely appropriate for the licensee to prorate the program time between
the Public Affairs and some other program category. There is no evidence
which would support a conclusion of deliberate misrepresentation; nor is there
any evidence which would establish a pattern of such misclassification.
Conversely, an examination of WCFL's license renewal application discloses a
considerable number of other programs properly classified as Public Affairs
programs which have served many diverse needs and interests within the
station's service area. Against this backdrop, we conclude that there is
no need to explore the licensee's program logging practices in an evidentiary
hearing.
Other Programming Matters
24. Petitioners also contend
that the licensee's reduction of Wcfl/'s News programming by five hours per
week is unjustified, particularly during a period of national turmoil. In
opposition, the licensee submits that WCFL still proposes 15 hours of News
programming per week, or 9.2% of the station's total program schedule.
The licensee also submits that, although petitioners have expressed their
opinions and views, they have failed to submit any facts showing that the
proposed percentage reduction constitutes a proma facie basis for an
evidentiary hearing. On the other hand, in reply, petitioners submit that
the licensee has failed to offer any justification for its proposed reduction
in WCFL's News programming.
[*425] 25. A
licensee has the responsibility of making good-faith, reasonable will serve the
needs and with serve the needs and interests of his service area and the
amounts, kinds and time-periods during which such programming should be
broadcast. Petitioners make no attempt to relate how the licensee's proposed
reduction in News programming from 20 to 15 hours per week will fail to serve
the public interest. The bare allegation that such a reduction is
unjustified does not establish a substantial and material question of fact
warranting exploration in an evidentiary hearing.
Requested Character Issues
26. Petitioners contend that
the character qualifications of the licensee should be placed in issue on the
grounds that articles published in the Hyde Park Kenwood Voices and the Chicago
Journalism Review charge that a WCFL news reporter was discharged by the
station because the Mayor of Chicago was displeased by his reports. This
charge, however, is based on information and belief. As previously noted,
Section 309(d)(1) of the Communications Act places a burden on petitioners to
come forward with specific facts by which the Commission can reasonably
conclude that the act alleged did, in fact, occur. General newspaper
articles do not satisfy this standard of proof. Moreover, petitioners
admit that they cannot swear to the veracity of this charge.
27. Petitioners also contend
that the licensee's character qualifications should be placed in issue because
the licensee has exhibited had faith with the public it is licensed to
serve. Petitioners claim that licensee's station manager was surly and
uncooperative with their representatives and, in this respect, refused to
discuss their proposals for improving the station's service. In
opposition, the licensee submits that station representatives met with
petitioners and that the petitioners were not entirely blameless in their
negative encounter with WCFL's station manager. In reply, petitioners
reassert their claim that the licensee was unwilling to review their written
suggestions and otherwise used dilatory tactics in attempting to discourage
review of the station's public file.
28. The Commission has
consistently encouraged broadcasters and community groups to meet in an attempt
to resolve their differences. Here it appears that the licensee and
petitioners did hold meetings and that the petitioners had the opportunity to
examine WCFL's public file. It also appears that the licensee has
considered and adopted several of the suggestions advanced by the
petitioners. Under these circumstances therefore we do not believe that a
full evidentiary hearing is warranted merely to explore the reasons underlying
the licensee's refusal or reluctance to implement all of the petitioners'
suggestions. "How a licensee responds to what may be conflicting and
competing needs of regional or minority groups remains largely within its
discretion. It may not flatly ignore a strongly expressed need; on the
other hand, there is no requirement that a station devote twenty per of its
viewing [or listening] public." Stone v. F.C.C., supra. Further,
while under an obligation to ascertain and program for community
[*426] needs (i.e., problems), no broadcaster can be aware of everyone's
problems all of the time. Thus, interested citizens who feel that a
station's performance is inadequate should so advise the broadcaster to provide
him with an opportunity to consider their ideas and suggestions. Such
discussions will, obviously, be more meaningful and effective if conducted
throughout the license term. Such was not the case herein. Instead,
the record indicates that the discussions between the licensee and petitioners
were conducted just prior to renewal time and in the face of a license renewal
challenge. Experience has shown that fruitful discussions are difficult
to achieve under such circumstances. We wish to reaffirm our prior
expression of policy therefore that community-broadcaster discussions be
conducted throughout the license term as the best and most effective method of
improving local service and resolving local complaints.
CONCLUSIONS
29. In view of the foregoing,
we find that petitioners have failed to raise any substantial and material
questions of fact which would warrant exploration in an evidentiary
hearing. We further find, upon our consideration of the above-captioned
license renewal application for Station WCFL and other documents cited herein,
that the Chicago Federation of Labor and Industrial Union Council is qualified
to be a licensee, and that a grant of the application would serve the public
interest, convenience and necessity.
30. Therefore, IT IS ORDERED,
That the petition to deny filed by the Better Broadcasting Council, Inc., the
Task Force for Community Broadcasting, and the Illinois Citizens' Committee for
Broadcasting IS DENIED.
31. IT IS FURTHER ORDERED,
That the above-captioned license renewal application for Station WCFL, Chicago,
Illinois IS GRANTED.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
In the face of some very serious
allegations, the majority today renews the license for WCFL, Chicago, Illinois,
and dismisses a petition to deny that license filed by the Better Broadcasting
Council, Inc., the Taskforce for Community Broadcasting, and the Illinois
Citizen's Committee for Broadcasting. The majority's cavalier treatment
of petitioners' claims in this case -- like its casual approach to similar
petitions in prior cases -- raises substantial questions about this
Commission's desire to ensure that its licensees operate in the public
interest. I dissent.
Petitioners raise several searching
questions regarding the licensee's ability to serve its community of
listeners. Among other charges, petitioners claim that WCFL has engaged
in over commercialization, that the licensee misrepresented WCFL's past
programming by improperly logging music programs as Public Affairs
presentations, that the licensee engaged in insidious censorship by dismissing
one of the station's [*427] announcers for political reasons, and
that the licensee exhibited bad faith by failing to negotiate with petitioners.
As to the petitioners first claim,
it is undisputed that WCFL exceeded 18 minutes per hour of commercial material
four times during its composite week. It is also undisputed that WCFL
adheres to the NAB Code which provides that radio stations should not exceed
this 18 minute limit. Nor is it disputed that in its 1967 renewal
application, WCFL promised not to exceed the Code's 18 minute limitation.
It would seem to follow, therefore,
that WCFL's licensee lied to this Commission when it promised to abide by the
NAB Code's commercialization provisions. Misrepresentation, of course, is
a serious problem, so the majority tries to wriggle out from under the
implication of these clear facts.
First, the majority notes that WCFL
exceeded its commercial limit in only four of the 136 hours of its composite
week. It happens, however, that each of these four instances -- one of
which amounted to a minute of over commercialization -- occurred during
"rush hour" traffic, time when most people are listening to their car
radios. The majority, however, places no significance on this fact; it
suggests, instead, that four violations of a licensee's promised
commercialization time constitute a de minumus situation. Is this the
case, regardless of the fact that all the violations occur during prime radio
time? Further, how many violations are necessary before the protection of
the majority's "de minimus" rubric no longer attaches? The
majority doesn't say, because it doesn't know.
Second, the majority -- without any
inquiry whatsoever -- accepts the licensee's unsupported contention that its
over commercialization was the product of inadvertence. This may, indeed,
have been the case. In such event, however, one would be entitled to
ponder why such inadvertence only took place during the prime "rush
hour" time. In any event, the question whether the station's over
commercialization was, indeed, the product of inadvertence is one of fact; it
is also unresolved, and cannot be determined in the absence of a hearing.
The majority, however, notes that it
is "willing to accept the possibility that human error could produce an
occasional excess over the stated maximum and [it does] so in this case."
Why is the majority so eager to accept the licensee's unsupported explanation
in the absence of an inquiry? The answer can only be that the majority
does not want to know the truth, for that truth could well cash doubt upon this
licensee's ability to serve the public interest. That could, in turn
require that we deny this license renewal, and it is well established that this
Commission is loath to do that.
Petitioners also contend that the
licensee misrepresented its past programming by classifying two entertainment
music programs as public affairs programming. The licensee concedes that
one of these programs may have been misclassified. The majority, again
not eager to disagree with the licensee, also finds that there is merit to the
concession that this show was misclassified. Yet, in the face of such a
finding, the majority concludes that such misclassification does not warrant a
hearing to determine whether or not the error was deliberate.
[*428] Instead, the
majority is content to note that program classification is a difficult
task. It adds:
[absent]
other evidence, the mere fact that a licensee misclassifies one or two programs
does not compel the conclusion that the licensee is guilty of intentional
wrongdoing.
This, of
course, is true -- misclassification, without a hearing, does not require us to
find that the misclassification was intentional. But the obvious point is
that there must be a hearing on the issue of intent. The majority relies
on the statement quoted above to justify its refusal to designate this issue
for a hearing. That sort of logic is simply absurd.
Petitioners claim this admitted
misclassification was an intentional misrepresentation. The licensee
argues that it merely made an unintentional error in judgment. Once
again, the majority accepts the licensee's side of the story without any
attempt to discover the truth.
Petitioners also contend that WCFL's
licensee discharged a WCFL news reporter because the mayor of Chicago was
displeased with that announcer's over-the-air reports. If true, such a
fact would cast considerable doubt upon the licensee's ability to serve the
public interest by reporting the news fairly and objectively.
The majority, however, again finds
that petitioners' allegations do not warrant a hearing. These charges are
supported by articles from two newspapers. The majority notes that under
§ 309(d)(1) of the Communications Act the truth of a petitioner's charge
must be established before a hearing will be designated on that issue.
The majority then concludes, without reference to any authority, that
petitioners' newspaper articles do not satisfy that standard of proof.
Section 309(d)(1) of the Act does,
indeed, require that petitions to deny be accompanied by an affidavit of a
person or persons with personal knowledge of the facts alleged. The
majority suggests, however, that this section demands, in effect, that the
allegations in a petition to deny be supported by the sort of factual showings
that can only be determined through an evidentiary hearing. That sort of
reasoning, of course, places the cart before the horse. If, prior to
hearing, these petitioners must establish the truth of their claim that the
licensee dismissed an employee for politically insidious reasons, then no
hearing would be needed. Given these facts we would need only make the
policy decision that the licensee was in violation of the publics' interest in
objective news reporting.
Petitioners have charged that an announcer
was dismissed. That is not denied. They charge also that he was
dismissed for political reasons, and that charge finds support in various news
reports. In my opinion, such a charge is both serious and incapable of
concrete proof prior to a hearing. By refusing to designate this issue
for hearing -- and by failing to advise these petitioners of just what sort of
added information is necessary before a hearing will be required -- the
majority has, in effect, decided that nobody can ever win a hearing on a claim
that a licensee has censored its news reporting for unlawful purposes.
Finally, petitioners contend that
the licensee exhibited bad faith with respect to the public it is licensed to
serve by refusing to discuss petitioners' proposals for improving the station's
service and by using dilatory tactics in attempting to discourage review of the
station's public file.
[*429] The licensee's
alleged attempts to prevent petitioners from examining its public file
apparently failed, so the majority refuses to inquire into the means by which
the licensee allegedly attempted to discourage citizen review. The
majority also rationalizes its refusal to inquire into the validity of
petitioners' charges on the grounds that a meeting between petitioners and the
licensee was, in fact, held. But petitioners do not deny the existence of
such a meeting. They contend, rather, that the meeting was useless due to
the licensee's allegedly stubborn refusal to discuss anything of substance.
The lesson of the majority's
analysis as to this issue is that a licensee who meets with community groups
may be as surly and intransigent as he likes -- so long as the meeting is held.
The sort of bureaucratic
irresponsibility reflected by today's decision is -- even to one who has seen a
lot of irresponsibility on the part of this agency during the past six and a
half years -- truly incredible. Petitioners only possible relief at this
juncture is from the courts.
I dissent.