In Re
Application of RADIO ENTERPRISES OF OHIO, INC., ASHTABULA, OHIO
For the
Renewal of License of Station WREO, Ashtabula, Ohio
Docket No. 19207 File No. BR-950
FEDERAL COMMUNICATIONS COMMISSION
38 F.C.C.2d 1099
RELEASE-NUMBER: FCC 73-29
January 18, 1973 Released
Adopted January 10, 1973
COUNSEL:
APPEARANCES
John P. Bankson, Jr., Esq., on
behalf of Radio Enterprises of Ohio, Inc.; Joseph E. Finley, Esq., on behalf of
Local 880, Retail Store Employees Union; and Joseph Chachkin, Esq., on behalf
of the Chief, Broadcast Bureau, Federal Communications Commission.
JUDGES:
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT; COMMISSIONER
HOOKS ABSENT.
OPINION:
[*1099] 1. This
proceeding involves the application of Radio Enterprises of Ohio, Inc., for
renewal of license for standard broadcast Station WREO located in Ashtabula,
Ohio. By Order, FCC 71-401, 29 FCC 2d 215, released April 26, 1971, we
designated the above-captioned application for hearing on the following issues:
n1
n1 The
procedural background of this case is set forth in our designation Order and
need not be repeated here.
1. To determine whether
Station WREO ceased carrying Local 880's advertisements because of economic
pressure; and
2. To determine whether, in
light of the evidence on the above issue, a grant of the application for
renewal of license of Station WREO would serve the public interest, convenience
and necessity.
2. Evidentiary hearings were
held on August 3 and 4, 1971, before Hearing Examiner Isadore A. Honing, n2 and the record was closed on August
4, 1971. On February 7, 1972, the Hearing Examiner released an Initial
Decision (FCC 72D-7) proposing to grant the application for renewal of license
of Station WREO. In so doing, the Hearing Examiner resolved the hearing
issues in Station WREO's favor and as indicated in paragraph 21 of the
conclusions in the Initial Decision, summarized the proceeding as follows:
n2 By order, FCC 72-760, released August 30, 1972,
we authorized these officials to change their title from Hearing Examiner to
Administrative Law Judge, with the change to be effective September 6, 1972.
Since it has been concluded that
Station WREO did not cease carrying Local 880's ads because of economic
pressure and since there is no evidence that WREO's decision was made in
deference to Hill's importance as an advertiser..; [*1100] it is
therefore concluded that a grant of the application for renewal of license of
Station WREO would serve the public interest, convenience and necessity.
3. Now before us for
consideration is a statement in support of the Initial Decision and limited
exceptions which have been filed by Radio Enterprises of Ohio, Inc.
(WREO). We have reviewed the Examiner's findings and conclusions
contained in the Initial Decision and believe that they represent a fair and
reasonable interpretation of the record evidence developed in this
proceeding. Therefore, except as modified in the rulings on the
exceptions contained in the attached Appendix, the Initial Decision is adopted.
4. ACCORDINGLY, IT IS ORDERED,
That the application (BR-950) of Radio Enterprises of Ohio, Inc., for renewal
of license for standard broadcast Station WREO, Ashtabula, Ohio, IS GRANTED.
FEDERAL
COMMUNICATIONS COMMISSION, BEN. F. WAPLE, Secretary.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
Since 1968 the Federal Communications
Commission has sought, without any reasoned deliberation, to renew the license
of station WREO, Ashtabula, Ohio. Today, after reluctantly going through
a process of "fact finding," the majority finally gets it chance and
pounces on it hungrily. The case's Kafkaesque history concluded, the
license is renewed.
Radio Enterprises of Ohio, the
licensee, filed this renewal application in 1967. The application was
challenged by a petition to deny by Local 880 of the Retail Store Employees
Union. The union was at that time engaged in a strike against the Hills
Department Store of Ashtabula. It charged that WREO had canceled its
carriage of [*1101] the union's paid announcements about the strike
due to economic pressure from the Hills store. The union also alleged
that the station had violated the fairness doctrine by broadcasting the Hills
store's regular advertisements while, at the same time, refusing to carry the
union's arguments in favor of the strike.
On December 2, 1968, without a
hearing, without an inquiry, without so much as a pause, the FCC renewed the
license to station WREO.
The union sought judicial review
and, on appeal, the court reversed, concluding that the FCC must hold a hearing
in order to determine whether or not the licensee had capitulated to economic
pressure from one of its major advertisers. Retail Store Employees'
Union, Local 880 v. FCC, 436 F.2d 248 (D.C. Cir. 1970). The court held,
further, that the Commission had failed to explain the reasons underlying its
denial of the union's fairness doctrine charge.
The case's subsequent history
reveals quite well this Commission's contempt for the United States Court of
Appeals.
First, on remand the Commission literally
ignored the court's lengthy discussion of the fairness doctrine and its
application to this case. The court held, first, that the labor dispute
presented a controversial issue of public importance -- at least in the
Ashtabula area. Second, the court noted that the fact that Hills'
advertisements had not mentioned either the union or the strike was not
determinative to the resolution of the fairness question. In effect, the
court found considerable merit to the union's argument that WREO's carriage of
Hills' advertisements constituted an implicit argument in favor of patronizing
the store, and that those advertisements therefore constituted advocacy of one
side of a controversial issue of public importance. (The union, of
course, was interested in presenting a case for why listeners might not want to
patronize the store.)
The FCC responded to this judicial
analysis with classic bureaucratic inaction.
First, the Commission deferred
decision on the fairness aspects of the union's petition pending the results of
our current fairness inquiry. 29 FCC 2d 215 (1971). I believe that we
could and should have decided the fairness issue after the court's 1970
remand. However, since we did defer our ruling, I cannot see how we can
now grant this licensee an outright renewal.
The fairness question remains
unresolved. It is, in my judgment, quite conceivable that Radio
Enterprise's conduct constituted a violation of our rule. In any event,
with this question unresolved, I find it remarkable that the majority blithely
renews that license. As long as the fairness question is to be deferred,
it seems to me the most we could do on the station's behalf (if that be our
goal) is to also defer the renewal.
There are, however, substantial
reasons why this license renewal application should be denied -- even absent a
resolution of the union's fairness complaint.
For reasons which remain
unexplained, the union has chosen not to appeal the hearing examiner's initial
decision. The station has taken certain minor exceptions, however, and
the record, which is properly before us, simply does not support the examiner's
conclusion that a grant of this renewal would serve the public interest.
[*1102] On order from
the court, the Commission designated this renewal for hearing to determine
whether WREO had cancelled the union's paid announcements because of pressure
from Hills Department Store. Presumably, a finding that such pressure had
indeed led to cancellation would warrant a grant of the union's petition to
deny.
The hearing examiner found that Mr.
Richard Moore, President of the advertising agency of which Hills was a client,
had made inquiries of several broadcast station which were carrying both Hills'
and the union's advertisements. Mr. Moore, who had never seen a copy of
the union's announcement, asked whether WREO had checked that announcement for
accuracy. Despite a decision by WREO's general counsel to the effect that
the announcements were not libelous and that there was no basis for a law suit,
WREO's President and its general manager decided to cancel those announcements.
When questioned during the hearing,
WREO's officers testified that the union's announcements had been cancelled due
to listener complaints. The examiner believed that excuse despite the
fact that none of WREO's officers could recall any names of the listeners who
allegedly objected to the announcements, despite the fact that none of these
alleged complaints had been recorded, despite the fact that the station had
never before cancelled announcements due to listener complaints, and despite
the fact that it was Mr. Moore's inquiries that appear to have initiated the
process which concluded in the station's decision to cancel. n1
n1 The record also reveals that WHHH, Warren, Ohio,
which was not a party to this proceeding, admitted that it had refused to run
the union's announcements because the station was unable to get approval from
Hills Department Store. The Hearing Examiner made nothing of this bizarre
concession, nor does the majority's opinion allude to it. Indeed, it
appears that this Commission does not even intend to notify WHHH that such
conduct should not be repeated in the future. Such a result is surely odd
once one realizes that this Commission has just completed a very long proceeding
in order to determine whether WREO engaged in the very conduct in which WHHH
admits it engaged.
Faced with what he apparently viewed
as a factual quagmire, the hearing examiner illustrated a "curious
neutrality in favor of the licensee." See Office of Communications of
United Church of Christ v. FCC, 425 F.2d 543 (D.C. Cir. 1969). Indeed, the
examiner appears to have placed upon the union the burden of proving --
virtually beyond a reasonable doubt -- that the licensee had buckled under to
economic pressure from Hills. In so doing, the examiner erred.
Under § 309 of the
Communications Act of 1934, a license renewal application must be designated
for hearing when a petition to deny raises substantial or material questions of
fact which indicate that a grant of the renewal application would be prima
facie inconsistent with the public interest. Since the court of appeals
ordered the FCC to designate the instant renewal application for hearing, it is
clear that the court was of the view -- even if the FCC was not -- that the
union had presented facts making out a prima facie case against renewal of the
license to WREO. In such circumstances, one would expect that the
ultimate burden of proof would be upon the licensee. See, e.g.,
Application of Chronicle Broadcasting Co., 16 FCC 2d 882 (1969). Both the
hearing examiner and the FCC majority appear to me to have ignored the law's
clear mandate.
[*1103] Even assuming,
arguendo, that the record taken as a whole supported the examiner's conclusion
that WREO's cancellation of the union's announcements was not due to pressure
from Hills Department Store, the station's stated reason for censoring the
union raises serious questions. The licensee relies upon the rather
apocryphal excuse that it cancelled the union's paid announcements -- and thus
denied the union access -- because of listener complaints. Such an excuse
-- however dubious -- squarely presents this Commission with the question
whether a broadcaster may unilaterally dictate which views the community will
be permitted to hear.
A strikingly similar question was
presented to this Commission in Business Executives Move for Vietnam Peace, 25
FCC 2d 242 (1970). There, the majority upheld, over my dissent, id. at 249, the
right of a broadcaster to refuse paid access to a group seeking to advocate an
admittedly controversial position. That decision was reversed by the
United States Court of Appeals, Business Executives Move for Vietnam Peace v.
FCC, 450 F.2d 642 (D.C. Cir. 1971). The court reasoned that a broadcaster's
blanket policy against selling time to groups desirous of discussing important
and controversial issues violated the First Amendment's ban against
censorship. (The case is now pending decision from the Supreme Court.)
The majority acts as if the court of
appeals had never spoken on these issues. I dissent.
APPENDIX:
APPENDIX
Rulings on the Exceptions of Radio
Enterprises of Ohio, Inc., to the Initial Decision.
|
Exception No |
Ruling |
|
1, 3-5,
7, and 10 |
Denied as
decisionally insignificant. The Examiner's |
|
|
findings
constitute a fair and reasonable recapitulation |
|
|
of the
record evidence. Moreover, the Examiner |
|
|
is not
required to make findings and conclusions on |
|
|
every
conceivable point on which evidence is offered. |
|
2 |
Granted.
The Examiner's findings are modified to the |
|
|
extent
noted by him in paragraph 19 of the conclusions |
|
|
of the
Initial Decision. |
|
6 and 9 |
Denied.
We find nothing improper in the Examiner's |
|
|
analysis
of the record evidence in these conclusions. |
|
|
Indeed,
because of the very nature of the charges |
|
|
alleged
in this proceeding, the motives and intentions |
|
|
of
certain individuals were called into question at |
|
|
the outset.
The Examiner's brief comments in this |
|
|
connection
to point out that the record evidence clearly |
|
|
dispels
any doubts in this regard. We believe, were |
|
|
appropriate
and necessary to any reasoned determination |
|
|
of the hearing
issues. Moreover, the Examiner |
|
|
made
clear that his observations in this respect were |
|
|
not
accorded any decisional significance. |