In re Application of WFMJ
BROADCASTING CO. For Renewal of License of Station WFMJ,
File No. BR-1010; File No. BR-1158; File No. BR-1873
FEDERAL COMMUNICATIONS COMMISSION
14 F.C.C.2d 423; 13 Rad. Reg. 2d (P & F) 1226
RELEASE-NUMBER: FCC 68-682
June 26, 1968 Adopted
MEMORANDUM OPINION AND ORDER
[*423] 1. The Commission has before it (1) a petition to deny filed on
August 9, 1967, by Local 880 of the Retail Store Employees Union (hereinafter
"Local 880") against the renewal of license of stations WLEC,
Sandusky, Ohio, and WHHH,
n1 The Local
880's petition was also directed against the grant of the renewal of license of
2. On March 6, 1968, the Commission directed letters to each of the above applicants and to Local 880 to clarify certain disputed facts and to elicit from the licensees direct responses on the subject matter on the controversy. The Commission has also before it the answers from the three licensees to the March 6 inquiries and comments from Local 880.
3. Local 880, the recognized collective
bargaining agent for employees of Hill's department stores (hereinafter
"Hill's") began a strike at Hill's
4. Local 880 formally charged Hill's with violations of the National Labor Relations Act for exerting economic pressure against certain radio stations to cause the cancellation of its ads. This charge was rejected initially by the NLRB's regional office and finally by its National Office of Appeals in August 1967.
5. In April of 1966, Local 880 had charged
6. Underlying the charges that the stations violated the National Labor Relations Act and the fairness doctrine is the broad contention by Local 880 that the three stations bowed to some sort of economic pressure instigated by Hill's department stores and, in doing so, agreed to the cancellation of the union's ads. As pointed out above, this charge, however, has not been substantiated by Local 880, either in the original petitions or subsequent filings. The NLRB has found, after its investigation, no evidence to support it. Contrary to the Communications Act, no affidavit was filed by Local 880 attesting to the facts pleaded in its petition and affirming them on the personal knowledge of some individual familiar with those facts. On the other hand, the stations here challenged have categorically denied that such pressure ever existed or was ever exerted against them by Hill's, either directly or indirectly. In this connection, we note that WHHH, although charged by Local 880 with carrying and later "canceling" union ads, denied ever having broadcast such ads. Local 880, in its March 25, 1968, filing, stipulated that WHHH had never, in fact, carried its ads, offering no explanation for its erroneous charged against WHHH in the first instance.
7. Because Local 880's charges lack specificity, and because in our view there are no substantial or unresolved questions of fact remaining, the Local 880 petitions, insofar as they pertain to WHHH, WLEC and WFMJ shall Be denied: because we find that the public interest, convenience and necessity will be served thereby, those renewal applications shall Be granted.
8. It is ordered, that insofar as they pertain to stations WHHH, WFMJ, and WLEC, Local 880's petitions to deny Are denied; the above-captioned renewal applications of WHHH, WFMJ, and WLEC Are granted.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTBY: JOHNSON (IN PART)
OPINION OF COMMISSIONER NICHOLAS JOHNSON CONCURRING IN PART AND DISSENTING IN PART
[*425] Fairness Doctrine
[In re Applications of WFMJ Broadcasting Co. et al.]
I concur in the results reached by the Commission today. However, I strongly object to the reasoning adopted by the majority. My colleagues have, in my judgment, misinterpreted the broad objectives of the fairness doctrine. They have couched today's decision in language calculated not only to defeat eventually Local 880's claim, but to retard further development of fairness principles as well.
Local 880 of the Retail Store Employee's Union (certified by the NLRB in April
1965 as the collective-bargaining agent of the employees of Hill's department
store) struck Hill's
the spring of 1966, Local 880 went to the National Labor Relations Board for
action against Hill's. At the same
time, it appeared before this Commission for aid in its efforts to gain access
to stations WLEC, WHHH, WFMJ, and WREO in order to broadcast its views on the
strike. The local met with defeat at
both agencies. The Labor Board ruled
against the union on the facts, finding that evidence turned up by NLRB
investigators "failed to support the allegation that Hill's had exerted
economic pressure on certain radio stations to refuse to carry union
advertising." Case No. 8-CA-4316, letter from Office of the General
Counsel, NLRB, to counsel for petitioners, dated August 12, 1967, exhibit F (attached
to opposition to petition of Local 880).
The FCC rejected as a matter of law the union's attempt to invoke the
Commission's fairness doctrine. Commission letter, April 29, 1966. The union is also pursuing its claims in the
Now Local 880 has returned to the Commission, in opposition to the renewal of four radio licenses. The local advances two claims. First, it argues that the licensees' willingness to accede to the pressure allegedly used by Hill's constitutes a per se offense against their obligation to serve the public interest. Second, it claims that, whether or not it can be proved that economic pressure was the basis for the stations' refusal to carry union advertisements, these refusals nevertheless ran afoul of the fairness doctrine.
[*426] Local 880 here advances a theme which would expand the reach of the obligation imposed on broadcast licensees to insure fair exposition of all viewpoints on controversial issues of public importance. The local's suggestion is that the question of whether to stop at Hill's or participate in the attempted boycott of the department store is a controversial issue of public importance. Further, it is suggested, Hill's routine advertising takes sides on that question -- Hill's advertisements urge customers to shop at Hill's and, in effect, to thereby ignore the boycott. Therefore, Local 880 contends, radio stations which carry Hill's advertisements incur an obligation to provide fair exposition of the contrary view -- the local's position that potential Hill's customers should respect the boycott.
The Commission today hands down a partial response to these claims. I find this partial response only partially satisfactory.
majority accepts Local 880's first claim -- that the stations should be denied
renewal of their licenses because they succumbed to economic pressure by
advertisers -- as valid as a matter of law, but unsubstantiated as a matter of
fact, at least as far as three of the stations are concerned. I concur in the majority's result on this
point as it is applied to WFMJ of Youngstown, WHHH of Warren, and WLEC of
[*427] WREO's position seems to me
distinct from that of the other three stations involved, not merely because its
response to FCC inquiry has appeared more evasive. WREO has a unique fairness obligation. It serves
The majority, however, rejects the claim that these circumstances give rise to any fairness considerations. In so doing, it has proscribed further examination of WREO's responses to determine the nature and sufficiency of the station's efforts to insure that Local 880 was afforded reasonable access to present its views on the question of whether viewers should shop at Hill's.
I do not believe that this expression of the fairness doctrine comports with Commission precedent or with the logic of the doctrine itself. Accordingly, I dissent to today's opinion, to the extent that it fails to find Local 880's complaint constitutes a valid claim arising under the fairness doctrine.