In the Matter of AMENDMENT OF PART O OF THE COMMISSION'S RULES -- COMMISSION ORGANIZATION -- WITH RESPECT TO DELEGATIONS OF AUTHORITY TO THE CHIEF, BROADCAST BUREAU
FEDERAL COMMUNICATIONS COMMISSION
43 F.C.C.2d 638
RELEASE-NUMBER: FCC 73-1128
November 9, 1973 Released
Adopted October 31, 1973
JUDGES:
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.
OPINION:
[*638] 1. The Commission has completed its review of the delegations of authority to the Chief, Broadcast Bureau, and has concluded that in addition to the need for up-dating, the public interest would be served by eliminating the lengthy recitation of specific delegations of authority presently appearing in section 0.281 of the rules, and in lieu thereof to restructure that section in terms of those matters to be referred to the Commission en banc. As so amended, the residue of undefined matters will be disposed of at staff level in accordance with established policy and precedent unless, in the opinion of the staff, a particular matter warrants referral to the Commission.
2. Despite the extensive nature of the changes herein ordered, the internal handling of petitions for reconsideration and applications for review will not vary substantially from past practice. Specifically, petitions for reconsideration filed under section 405 of the Communications Act will continue to be acted on by the Commission en banc or by the "designated authority" within the Commission, depending upon the circumstances of the case, whereas all properly filed applications for review will, in accordance with section 5(d) of the Communications Act, continue to be referred to the Commission en banc Persons aggrieved by actions taken at any level within the Commission are thus assured that their right of access to the full Commission are thus assured that their right of access to the full Commission is in no way affected by the ordered changes.
3. The restatement of specific delegations of authority herein ordered requires that the working relationships of the Broadcast Bureau with other bureaus and staff offices be defined as to joint areas of responsibility. A new section (0.282) has been added for this purpose.
4. Authority for the adoption of this Order is contained in section 5(d) of the Communications Act of 1934, as amended. Since it relates to internal Commission management, practice, and procedure, and because the early implementation of these changes will expedite the transaction of public business, compliance with the notice and effective [*639] date provisions of the Administrative Procedure Act (5 U.S.C. 553) is not required.
5. Accordingly, IT IS ORDERED, That effective November 13, 1973, section 0.281 of the rules IS AMENDED, and a new section (0.282) IS ADDED in the manner set forth in the Appendix.
FEDERAL COMMUNICATIONS COMMISSION, VINCENT J. MULLINS, Secretary.
DISSENT:
DISSENTING STATEMENT OF COMMISSIONER NICHOLAS JOHNSON
The Commission has today amended its rules by setting forth those broadcast matters that must be decided by the full Commission. By implication those not listed are delegated to the Broadcast Bureau Chief.
This method should fulfill our purpose of informing interested parties of the Bureau's authority. That the effort was made at all, I applaud. But I am forced to voice my dissent because of a number of significant omissions.
I start with the general proposition that all operating bureaus in this Commission should resolve all matters on a delegated basis. There are, of course, some exceptions. However, any system of delegation can operate smoothly and effectively only if (1) the bureaus have clear and precise policy guidelines from the Commission, and (2) the Commission [*643] has a management information reporting system by which meaningful and substantive information on delegated actions is frequently submitted to the Commissioners for review. Such reports must be more than mere statistical summaries; they should contain a substantive analysis of a variety of trends and shifts taking place in the various regulated industries; and those trends should be measured against previously identified goals, measurable standards of performance and predictions.
Should the Commissioners have available such substantive information on a frequent basis, our job then would be to provide knowledgeable guidance for future delegations -- and occasionally to review a staff action after appeal. My experience leads me to believe that the Commission's operating bureaus would be quite capable of performing this role.
On the other hand, to allow our bureaus to function without sufficient feedback simply undercuts our role as defined by Congress and as required by any reasonable standards of administration and management.
It is my view that the amended rules do not make available to us the kinds of information needed to enable us to perform our statutory function. Beyond these general observations, here are some of the specific rule provisions with which I disagree:
1. I requested that a new subsection (v) be added to 0.281(a)(1) to require that applications raising issues of local, regional, or national concentration of control be passed upon by the Commission. The proposed regulations would delegate to the staff cases in which an applicant desires to acquire his third AM which is further than 100 miles from either of the other two. While the Broadcast Bureau assures us that these types of cases will continue to be brought to our attention, our rules should inform the parties that such review will be by the Commissioners. The proposed rule needs a "catch-all" subsection to allow the Commission an opportunity to pass on these vital issues. Existing multiple ownership rules, in addition to imposing numerical limits on ownership, require that these concentration of control issues be passed upon by the Commission. The proposed rule really only treats one aspect of the multiple ownership rules and a new subsection (v) would cure this defect. While the Bureau believes that our suggestion would cause more work for the Commissioners, we retain the option of modifying our practices as experience dictates.
2. Under proposed section 0.281(a)(2), I suggested that the following language be deleted: "... when the seller will realize a profit in excess of $10,000." This phrase is irrelevant because the existence of a profit is not determinative of the issue of trafficking.
3. I recommended that section 0.281(a)(3)(i) be revised to read: "Proposals by applicants against whom antitrust suits are pending which may reflect on the basic qualifications of the applicant." The Broadcast Bureau staff objected, finding that such language would increase the number of cases referred to the Commissioners. Again, we retain the option of modifying our practices, but since the Bureau proclaims that it is already reducing our workload by 50% with the amended rules, we could well adopt this change and still retain a substantial savings. The amended rule is too restrictive, and working [*644] under it would remove from our consideration items like the RKO, GE, and Westinghouse cases, which were not "communications-related." Antitrust suits can cover many areas of a licensee's qualifications, and our delegation rules should not be limited to "communications-related" suits.
4. Section 0.281(a)(16) provides that the Commissioners will decide cases where a community will be deprived of a proposed broadcast station due to agreements that either amend or dismiss applications mutually exclusive with another application for a different community. As written, however, this section will delegate to the Bureau the authority to pass on agreements which either amend or dismiss applications specifying the same community including agreements where consideration has been paid or promised by an applicant for removal of a conflict with a mutually exclusive application. While the existing language of the section meets my approval, I believe that the staff is given too broad a responsibility on matters where little policy guideline exists from the Commission.
5. My main objection to the amended rules lies in section 0.282(c), regarding the reporting procedures the Bureau will follow. As written, this section fails to provide us with some firm commitment as to exactly what the Bureau will be providing the Commission during the coming months and years. We need useful substantive information on actions taken under delegated authority. Today's rule amendments lack this clarity, and without it effective management of the Commission's activities by the seven Commissioners becomes an impossible task.
For all of these reasons I reluctantly dissent.
APPENDIX:
APPENDIX
Part 0 of Chapter I of Title 47 of the Code of Federal Regulations is amended as follows:
1. Section 0.281 is amended to read as follows:
§ 0.281 Authority delegated.
The performance of functions and activities described in section 0.71 of this part is delegated to the Chief, Broadcast Bureau: Provided, That the following matters shall be referred by the Chief, Broadcast Bureau, to the Commission en banc for disposition:
(a) Applications. Formal and informal applications for new or modified AM, FM, and TV facilities, and for the renewal, assignment, and transfer of construction permits and licenses involving such facilities, when such applications fail to satisfy the requirements of Commission rules or established Commission policy in the following areas of special concern:
(1) multiple ownership, concentration of control, and cross-interests.
(i) Acquisition of a third broadcast station within 100 miles of a presently owned station; "one-to-a-market" situations involving UHF stations or TV satellite stations; and duopoly situations involving TV satellite stations. (Commonly owned AM and FM stations in the same market are treated as one station for the purpose of the "third station" limitation.)
(ii) Acquisition of a broadcast station by a newspaper in the same area, or other organization having substantial interests in the print media in the same area.
(iii) Creation of common ownership interests, management ties, or employment relationships between licensees serving substantial common areas and populations. Commonality of areas and populations served shall be determined in duopoly situations by overlap of the following service contours: AM -- 1 mVm; FM -- 1mVm; and TV -- Grade B. In "one-to-a-market" situations, commonality of areas and populations served shall be determined by community encompassment with the following service contours: AM -- 2 mVm; FM -- 1 mVm; and TV -- Grade A.
(iv) Acquisition of broadcast properties by corporations or individuals appearing to dominate the economic life of the community.
(2) Trafficking. Acquisition of broadcast properties by persons having a history of short term buying and selling such properties, or seeking waiver of the "three-year rule" (section 1.597) when the seller will realize a profit.
(3) Anti-trust activity, unfair trade practices, and violations of law not previously considered by the Commission.
(i) Proposals by applicants against whom communications-related anti-trust suits are pending or against whom there is pending any anti-trust suit in which an adverse verdict has been reached.
(ii) Proposals by applicants who have entered into a consent decree, have pleaded guilty or nole contendere, or have been adjudged guilty in an anti-trust case during the three-year period preceding the filing of the application.
(iii) Proposals by applicants who have been the subject of a final cease and desist or consent order issued by the Federal Trade Commission during the three-year period preceding the filing of the application.
(iv) Proposals by applicants or including parties with felony or capital offense conviction records, or against whom a criminal proceeding is pending.
(4) Violations and complaint matters. Proposals filed by applicants against whom violation notices of a serious nature are outstanding or against whom questions suggesting serious misconduct remain unresolved, or by applicants with records of serious past misconduct.
(5) Equal employment opportunities. Proposals filed by applicants whose equal employment opportunities programs do not comply with Commission rules or policies and cannot be cleared by further staff inquiry or action, or whose past performance suggests the existence of discriminatory practices.
(6) Short term licenses and renewals. Proposals which in the opinion of the Chief, Broadcast Bureau, warrant the issuance of a short-term license or renewal authorization.
(7) Programming: commercial matter.
(i) Commercial AM and FM proposals in non-seasonal markets exceeding 18 minutes of commercial matter per hour, or providing for exceptions permitting in excess of 20 minutes of commercial matter per hour during 10 percent or more of the station's total weekly hours of operation, or, during periods of high demand for political advertising, providing for exceptions permitting in excess of 22 minutes of commercial matter per hour during 10 percent or more of the station's total weekly hours of operation.
(ii) Commercial AM and FM proposals in seasonal markets (e.g., resort markets) exceeding 20 minutes of commercial matter per hour, or providing for exceptions permitting in excess of 22 minutes of commercial matter per hour during 10 percent or more of the station's total weekly hours of operation.
(iii) Commercial TV proposals exceeding 16 minutes of commercial matter per hour, or, during periods of high demand for political advertising, providing for exceptions permitting in excess of 20 minutes of commercial matter per hour during 10 percent or more of the station's total weekly hours of operation.
(8) Programming: program content and ascertainment of community needs.
(i) Commercial AM, FM, and TV proposals for less than 8, 6, and 10 percent, respectively of total non-entertainment programming.
(ii) Commercial AM, FM, and TV proposals containing substantial ascertainment defects which, for any reason, cannot be resolved by further staff inquiry or action.
(9) Programming: substantial shifts in format. Commercial AM, FM, and TV applications disclosing substantial changes affecting either the entertainment or non-entertainment portions of existing formats which raise significant public interest questions, or which are opposed by the listening or viewing public.
(10) Programming: promise versus performance. Commercial AM, FM, and TV renewal, transfer, and assignment applications which vary substantially from prior representations with respect to non-enter-programming or commercial practices.
(11) Hearing Orders.
(1) Mutually exclusive applications involving non-routine hearing issues.
(ii) Renewal, assignment, and transfer applications which appear to call for evidentiary hearing.
(iii) Such other applications, as in the opinion of the Chief, Broadcast Bureau, warrant referral to the Commission prior to designation for hearing.
(12) Interference and mileage separations. Proposals for new or modified AM, FM, and TV facilities which would create substantial new prohibited overlap or station separation shortages. In the case of AM proposals (other than Class IV), a net increase in objectionable interference to another AM station involving move than 1 percent of the population served by such other station, whether or not consented to by the station affected, shall be referred to the Commission.
(13) Station location.
(i) Commercial AM, FM, and TV proposals which, on their face, appear realistically intended to serve another community of larger size. Signal penetrations of 5 mV/m (AM), 3.16 mV/m (FM), and city grade (TV) shall be used in determining whether referral to the Commission is appropriate.
(ii) Any other such proposal raising allocations problems or presumptions under section 307(b) of the Communications Act which, for any reason, cannot be resolved by further staff inquiry or action.
(14) Main studio relocation. All AM, FM, and TV proposals for main studio relocation, or for waiver of main studio program organization requirements under circumstances which have traditionally been viewed as creating a de facto change in station location.
(15) VHF television expansion. Commercial VHF television proposals seeking to bring or extend their Grade B contours into a significant area or population included within the predicted Grade B contour of a UHF television station where the area or population involved in covered by fewer than 4 VHF television signals.
(16) Agreements to amend or dismiss applications. Any situation in which a community will be deprived of a proposed broadcast station by reason of amendment or dismissal of an application mutually exclusive with another application for a different community.
(17) Experimental and development operation. Proposals for experimental and developmental authority containing policy implications which, in the opinion of the Chief, Broadcast Bureau, warrant referral to the Commission.
(18) Miscellaneous applications and requests.
(i) Proposals for special temporary, emergency, conditional, or interim operating authority of more than routine significance.
(ii) Any other application, proposal, or request presenting novel questions of fact, law, or policy which cannot be resolved under outstanding precedents and guidelines.
(b) Petitions and other requests for Commission action.
(1) Petitions to deny directed against AM, FM, and TV applications for new or modified facilities, or for renewal or assignment of license or transfer of control, when such petitions are timely filed and properly lie as a matter of law. Untimely and otherwise improperly filed petitions to deny; e.g., against applications for minor changes in facilities or applications for licenses to cover construction permits, will be processed as informal objections and will be referred to the Commission only if they contain new or novel arguments not previously considered by the Commission, or present facts or arguments which appear to justify a change in Commission policy.
(2) Petitions and other requests for reconsideration of actions taken by the Chief, Broadcast Bureau, when such petitions or requests contain new or novel arguments not previously considered by the Commission, or present facts or arguments which appear to justify a change in Commission policy.
(3) Applications for review of action taken by the Chief, Broadcast Bureau, which comply with section 1.115 of this chapter.
(4) Petitions and other requests for waiver of Commission rules, whether or not accompanied by an application, when such petitions or requests contain new or novel arguments not previously considered by the Commission, or present facts or arguments which appear to justify a change in Commission policy.
(5) Petitions and other requests for declaratory rulings, when such petitions or requests contain new or novel arguments not previously considered by the Commission, or present facts or arguments which appear to justify a change in Commission policy.
(6) Petitions for, and final dispositions of, rule making proceedings except for the issuance of notices of proposed rule making (including ordered to show cause, where appropriate) involving routine changes in the FM and TV tables of assignments.
(7) Petitions and other requests for waiver of the prime-time access rule, in area where Commission policy is not clearly established.
(8) Petitions and other requests for long-term waiver of the policy limiting affiliations by commonly owned networks in the same market.
(9) Petitions and other requests for waiver of the sponsorship identification provisions of the Communications Act, in accordance with section 317(d) thereof.
(10) Any other petition, pleading, or request presenting novel questions of fact, law, or policy which cannot be resolved under outstanding precedents and guidelines.
(c) Administration and enforcement.
(1) Proposed orders to show cause why station licenses or construction permits should not be revoked.
(2) Proposed actions following any case remanded by the courts.
(3) Proposed Notices of Apparent Liability and final forfeiture orders involving penalties of more than $2,000.
(4) Proposed public notices expressing Commission policy, interpreting the provisions of law, regulations, or treaties, or warning the broadcast industry as to certain types of violations.
(5) Problems involving apparent violation of the Commission's rules governing equal employment opportunities or otherwise indicating the existence of discriminatory practices which, in the opinion of the Chief, Broadcast Bureau, or the Equal Employment Opportunity Commission should be brought to the attention of FCC Commissioners.
(6) Any other complaint or enforcement matter presenting novel questions of fact, law, or policy which cannot be resolved under outstanding precedents and guidelines.
2. Section 0.282 is added new to read as follows:
§ 0.282 Actions taken under delegated authority.
(a) In discharging the authority conferred by section 0.281 of this part, the Chief, Broadcast Bureau, shall establish working relationships with other bureaus and staff offices to assure the effective coordination of actions taken in the following areas of joint responsibility;
(1) Complaints arising under sections 315 and 605 of the Communications Act -- Office of General Counsel.
(2) Objections to proposed call signs and requests for waiver of procedural rules govering call sign assignments -- Office of Chief Engineer.
(3) Requests for waiver or refund of filing and/or grant fees -- Office of Executive Director and Office of General Counsel.
(4) Requests for waiver of tower painting and lighting specifications -- Field Engineering Bureau.
(5) Matters involving emergency communications -- Office of Executive Director.
(6) Complaints involving equal employment opportunities -- Office of General Counsel.
(7) Requests for use of frequencies or bands of frequencies shared with private sector non-broadcast or government services -- Office of Chief Engineer and appropriate operating bureau.
(8) Requests involving coordination with other agencies of government -- Office of General Counsel, Office of Chief Engineer and appropriate operating bureau.
(9) Proposals involving transmitter sites on public lands owned or controlled by the Departments of Agriculture or Interior -- Office of Chief Engineer.
(10) Proposals involving possible harmful impact on radio astronomy or radio research installations -- Office of Chief Engineer.
(b) With respect to non-routine applications granted under authority delegated in section 0.281 of this part, the Chief, Broadcast Bureau or his designees, shall enter on the working papers associated with each application a narrative justification of the action taken. While not available for public inspection, these working papers shall, upon request, be made available to the Commissioners and members of their staffs.
(c) The Chief, Broadcast Bureau, shall prepare and submit to the Commission a quarterly statistical summary of actions taken during the preceding quarter under authority delegated to him in section 0.281 of this part. The statistical summary shall be accompanied by a statement of industry trends apparent in the staff handling of non-routine matters during the same quarter.