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In re Application of LAMAR LIFE BROADCASTING CO. n1

For Renewal of License of Television Station WLBT and Auxiliary Services, Jackson, Miss.

n1 Our designation order (3 FCC 2d 784, 7 R.R. 2d 445 (1966)) in this matter specified that the caption of the proceeding be changed from Lamar Life Broadcasting Co. to Lamar Life Insurance Co. in order to reflect a transfer of control, approved by the Commission on Dec. 2, 1965 (1 FCC 2d 1484, 6 R.R. 2d 308).However, since in that action we granted an application for transfer of control of Lamar Life Broadcasting Co. from P. K. Lutken, Maurice Thompson, and Fred C. Beard to Lamar Life Insurance Co., Lamar Life Broadcasting Co. has remained, and is still, the licensee of station WLBT and is the present renewal applicant. Accordingly, since no party in the present action will be prejudiced, the caption is hereby corrected to read Lamar Life Broadcasting Co.

Docket No. 16663 File No. BRCT-326

FEDERAL COMMUNICATIONS COMMISSION

14 F.C.C.2d 431; 13 Rad. Reg. 2d (P & F) 769

RELEASE-NUMBER: FCC 68-689

June 27, 1968 Adopted


CHAIRMAN HYDE FOR THE COMMISSION: COMMISSIONERS COX AND JOHNSON DISSENTING AND ISSUING A STATEMENT; COMMISSIONERS HYDE (CHAIRMAN), LEE AND WADSWORTH ISSUING A FURTHER STATEMENT; COMMISSIONER BARTLEY ISSUING A SEPARATE FURTHER STATEMENT; COMMISSIONERS COX AND JOHNSON ISSUING A FURTHER STATEMENT.

 

OPINION:

 

    [*431]1.This proceeding involves the application of Lamar Life Broadcasting Co. (hereinafter Lamar), filed March 3, 1964, for renewal of its license to operate television station WLBT on channel 3 in Jackson, Miss.On April 15, 1964, a petition to intervene and to deny the renewal application was filed by the Office of Communication of United Church of Christ; the Rev. Robert L. T. Smith, a resident of Jackson,Miss.; and Dr. Aaron Henry, a resident of Clarksdale, Miss.The United Church of Christ at Tougaloo,Miss., was joined in the petition pursuant to its petition for joinder, filed June 10, 1964. (Hereinafter these parties are collectively referred to as intervenors.) The general tenor of their petition was that station WLBT had not served the needs, tastes and interests of the substantial Negro population in its[*432]service area and had, in its programming dealing with the racial issue, presented only the segregationist viewpoint.

   2.In our Memorandum Opinion and Order n2 we dismissed the intervenors' petition, since we believed they lacked standing to intervene.Nevertheless, we considered the allegations therein, and we concluded that serious questions were raised as to whether the licensee was operating its station in the public interest.Thus, we granted a conditional 1-year renewal, instead of the usual 3-year renewal, so that the licensee could "demonstrate and carry out its stated willingness to serve fully and fairly the needs and interests of its entire area -- so that it * * * [could] in short, meet and resolve the questions raised." n3 Subsequently, the U.S. Court of Appeals for the District of Columbia Circuit, on appeal by the intervenors, reversed our order and remanded the matter to us, although it retained jurisdiction, for further proceedings consistent with its opinion.n4

   n2 38 FCC 1143, 5 R.R. 2d 205, released May 20, 1965.

   n3 38 FCC at 1154, 5 R.R. 2d at 219.

   n4 Office of Communication of United Church of Christ v. Federal Communications Commission, 123 U.S. App. D.C. 328, 359 F. 2d 994, 7 R.R. 2d 2001 (D.C. Cir. 1966).

   3.Pursuant to the court's mandate, we vacated our previous Memorandum Opinion and Order, granted the petition of the aforementioned parties to intervene, and designated the renewal application for an evidentiary hearing. n5 We specified hearing issues to determine:

   n5 3 FCC 2d 784, 7 R.R. 2d 445, released May 26, 1966.

   (a) Whether station WLBT has afforded reasonable opportunity for the discussion of conflicting views on issues of public importance;

   (b) Whether station WLBT has afforded reasonable opportunity for the use of its broadcasting facilities by the significant groups comprising the community of its service area;

   (c) Whether station WLBT has acted in good faith with respect to the presentation of programs dealing with the issue of racial discrimination, and, particularly, whether it has misrepresented to the public or the Commission with respect to the presentation of such programming.

   (d) Whether in light of all the evidence a grant of the application for renewal of license of station WLBT would serve the public interest, convenience or necessity.

The burden of proof with respect to issues (a) and (b) was placed upon the intervenors, with respect to issue (c), on the Broadcast Bureau, and with respect to issue (d), on Lamar.

   4.Since we considered the ultimate issue to be the probable future performance of the applicant, we directed, without specifying the weight or significance to be accorded it, that evidence relating to station operation up to the date of the hearing was to be admitted by the hearing examiner.Also, we directed that he admit material and relevant evidence which was not unduly remote in time.Pursuant to our Order, hearings were conducted in Jackson, Miss., during May of 1967.n6

   n6 On June 14, 1968, Lamar requested an extension of time from June 14 to June 24, 1968, to file proposed corrections to the transcript in this proceeding, and counsel for the Broadcast Bureau and for the intervenors consented to a grant of the request.Lamar's request is granted, and the proposed corrections are accepted.The intervenors' proposed corrections to the transcript, filed on June 25, 1968, are also accepted.

    [*433]5.By his Initial Decision, FCC 67D-54, released October 17, 1967, Examiner Jay D. Kyle concluded that renewal of the WLBT license would serve the public interest, convenience and necessity and, therefore, he recommended a grant of the application.With the possible exception of a few isolated incidents, Examiner Kyle determined that the allegations made by the intervenors, which were of a sufficiently serious nature to merit an evidentiary hearing, were neither corroborated nor substantiated at the hearing.Rather, the examiner concluded that the record demonstrated that WLBT has consistently afforded the right of expression over its facilities to persons of contrasting views to those expressed over the air, that WLBT afforded reasonable opportunity for the use of its facilities by the significant area community groups, including the Negro community, and that the record was devoid of any evidence that WLBT misrepresented either to the viewing public or to the Commission, its programming policy with respect to the racial issue or that it did not act in good faith in the presentation of programming on that issue.

   6.On June 4, 1968, we heard oral argument, en banc, in this proceeding.We have considered the Initial Decision in light of the pleadings n7 and oral argument, and except as modified below and in the appendix, we adopt the Initial Decision.While we are in agreement with the examiner's conclusion that the intervenors failed to corroborate or substantiate virtually all of their allegations upon which the hearing was predicated, and while we are persuaded that the examiner correctly resolved all of the designated hearing issues in Lamar's favor, n8 we believe that the importance of the matter compels us to set forth our views at this time.

   n7 Before us for consideration are: (a) Exceptions and a supporting brief which were filed on Nov. 16 and 27, 1967, respectively, by the intervenors; (b) exceptions and a supporting statement and brief, filed on Nov. 16, 1967, by Lamar; (c) a statement in support of the Initial Decision, filed Nov. 15, 1967, by the Chief, Broadcast Bureau; (d) a reply to brief and exceptions, filed Jan. 15, 1968, by the intervenors; (e) a reply to brief and exceptions, filed Jan. 15, 1968, by Lamar; and (f) a reply to brief and exceptions, filed Jan. 15, 1968, by the Chief, Broadcast Bureau.

   n8 Since our decision is based on the preponderance of evidence adduced at the hearing, we are of the opinion that the intervenors' argument that they only had the burden of going forward with evidence in the first instance on hearing issues (a) and (b), that the Broadcast Bureau only had the burden of going forward on issue (c), and that the station had the actual burden of proof on those issues, is mooted.

   7.Before proceeding with our discussion of the evidence and of our findings and conclusions thereon, we believe that we should clarify the status of 11 hearing exhibits which were identified in the hearing but which the record fails to disclose were formally admitted in evidence.When it became apparent during the course of the oral argument that the intervenors were of the opinion that these exhibits had been admitted and the applicant believed that they had not, the presiding officer permitted the parties to submit comments setting forth their views in detail.In response to this invitation, counsel for the applicant, intervenors and the Broadcast Bureau notified the Commission that they were of the view that these exhibits should be deemed part of the hearing record.Since there is no longer any objection to the admissibility of these exhibits, we shall consider them in reaching our decision in this matter.n9 Our findings and conclusions in the next five paragraphs are based upon these exhibits.

   n9 The exhibits were identified at Tr. 87-88 as first, second, etc.The examiner reserved and we assign exhibit numbers as follows: The first document will be marked "Intervenors' Exhibit 100"; the second, "Intervenors' Exhibit 101 ", etc.

    [*434]8.In 1955 the National Association for the Advancement of Colored People (NAACP) made certain allegations of bias in racial matters by Fred Beard, the then manager of WLBT, and urged the Commission to investigate his activities.The Commission referred the matter to WLBT for comment, and the licensee, by letter of December 8, 1955, submitted a general denial. Thereafter, the Commission, by letter of January 10, 1956, advised WLBT that if further information was needed, it would be notified.

   9.In 1957 WLBT refused a request by the NAACP for time to reply to a program entitled "The Little Rock Crisis," on which local public officials had expressed their views.The NAACP complained to the Commission, and the Commission denied the request for equal time since section 315 of the Communications Act did not apply to the situation and since, although a station is required to be fair in the presentation of controversial issues, in the light of the no-censorship provisions of section 326 of the act, the Commission had no power over specific program content.

   10.In 1958 the Commission brought to WLBT's attention the fact that charges of bias had been made by the NAACP in 1955 and 1957 and that its license renewal application had been deferred pending receipt of a statement from WLBT as to its policy on controversial issues of public importance.WLBT replied that while network programs consistently favored desegregation, and while the station had refused local requests for time to rebut such programs, its locally originated programs attempted to strike a fair balance between racial segregation and integration points of view.WLBT further stated that it considered the 1957 "Little Rock" program to be a non controversial one by elected officials, and did not feel obligated to furnish rebuttal time.

   11.In 1959 the Commission sent a letter to the NAACP complainant (with copy to WLBT), stating that a 1955 show (with the alleged deletion of Mr. Thurgood Marshall's participation and substitution of a "cable trouble" sign) was, insofar as the deletion of the program was concerned, within the discretion of the licensee, but that the untruthful use of a "cable trouble" sign (if it occurred) would have been wrongful.The letter further stated that the Commission did not know the content of the "Little Rock" program, but that if, as claimed by WLBT, it was merely a plea for clam and public order by elected officials, no fairness question arose, whereas if it was partisan, an obligation to afford rebuttal time was engendered.In any event, the Commission's letter stated that a reasonable mistake in licensee judgment was not to be considered fatal.

   12.Thus, as early as 1957, WLBT was subject to charges that its programming concerning racial matters was, in the opinion of certain persons, violative of its duty to be balanced and fair in its presentations.However, the Commission did not then find these charges to be substantiated or serious enough to warrant further proceedings.

   13.Hearing issue (a) pertains to whether station WLBT has afforded reasonable opportunity for the discussion of conflicting views on issues of public importance.The examiner so found and, based upon a preponderance of the evidence, we concur in his conclusion.The[*435]examiner found, inter alia, that the "Comment" program series was an excellent one, that the Rev. Robert L. T. Smith was accorded fair and equitable treatment by WLBT in his 1962 political campaign, and that the station did not improperly treat the alleged derogatory remark about TougalooCollege on the 1963 "Meet Your Candidate" program.We believe that it would serve no useful purpose at this time to expand on the examiner's findings on these matters.Suffice to state that the record supports his conclusions.

   14.While we cannot conclude that the licensee's history of fairness doctrine compliance has been exemplary, we must agree with the examiner's conclusion that the intervenors have failed to prove the many serious incidents which they alleged.One prime example of such failure is the 1957 forum program on "The Little Rock Crisis" presented by station WLBT.While we believe that the requirements of the fairness doctrine would have applied to the program had it been a partisan one, despite WLBT's contention that it was only a report to the people by elected public officials, the record is devoid of any evidence as to the content of the program, other than the unsubstantiated allegation that it discussed the maintenance of segregation.Accordingly, the record does not support the intervenors' contention that WLBT was chargeable with a violation of the fairness doctrine in its presentation of that program.

   15.Similarly, the intervenors have repeatedly argued that WLBT violated the fairness doctrine by its carriage of a series of "Freedom Bookstore" announcements during much of the renewal period.While they assert that the organization is an anti-civil rights, prosegregation group, there is no probative evidence to this effect.Our conclusion in this regard would be the same even if the intervenors' rejected exhibits 18 and 50 had been admitted.Our examination of exhibit 18 indicates that it is a mere statement in a letter written by Dr. A. D. Beittel (who was a witness at the hearing) to the effect that Fred Beard operated the bookstore in conjunction with the TV station.Such evidence, were it within Dr. Beittel's personal knowledge, should have been offered through him and not through a letter.Exhibit 50 is only the text of spot announcements for various prima facie, patriotic works.n10 Accordingly, while we agree that the announcements were carried, there is no evidence that their carriage constituted a violation of the fairness doctrine.

   n10 Intervenors' exception 143 concerns this matter.The transcript references in support of the intervenors' position in that exception have likewise been examined and do not support the intervenors' claim.

   16.Our study of the record indicates that only in one instance has WLBT been proven to have violated the requirements of the fairness doctrine.In its presentation from September 3 to September 30, 1962, of a series of spot announcements paid for by the Jackson Citizens Council urging support for the council because, the spots asserted, the Communists were behind the racial agitation then present inMississippi, the station incurred the obligation, which it did not fulfill, to present the opposing viewpoint.n11 However, as we pointed out in our 1949 "Editorializing Report," n12 an isolated failure, occasioned by an[*436]honest mistake or a good faith error in judgment, to comply with the fairness doctrine should not result in action adverse to a station's license.Thus, in our view the record demonstrates that station WLBT has provided reasonable opportunity for the discussion of conflicting views on important public issues.

   n11 Although WLBT claimed that it did not realize that the fairness doctrine applied to commercial paid spot announcements, it is clear that the doctrine is applicable.See WSOC Broadcasting Co., FCC 58-666, 17 R.R. 548 (1958).

   n12 13 FCC at 1255-1256, 26 R.R. at 1910-1911.

   17.We now turn our attention to the issue of whether the licensee has afforded reasonable opportunity for the use of its facilities, and has adequately served the needs, tastes, and interests of the significant groups comprising its service area.The mainstay of the intervenors' evidence on this issue was its monitoring study of WLBT programming, which it conducted during the March 1 to March 7, 1964, period, and which, it has urged, clearly demonstrates that broadcast service to the Jackson Negro community was wholly inadequate during the license renewal period.Our examination of the exhibits comprising the monitoring study (intervenors' exhibits 1-4) persuades us that the examiner correctly concluded that the study was of little probative value and was of little significance to a resolution of the proceeding.The intervenors' exhibit 3, the most significant part of the monitoring study, is little more than a summation of selected WLBT locally originated programming, primarily news broadcasts, during the monitored week.There is nothing in that exhibit to support a conclusion that WLBT was or was not serving the needs, tastes, and interests of the substantial Negro population in its service area.

   18.The other significant portion of the monitoring study, intervenors' exhibit 2, is no more than a list of WLBT locally originated programs broadcast during the monitored week.Other than the indication that there was Negro participation per se only in the programs "Our Colleges" and "Voice of Good Will," its content is limited to a program list as opposed to any meaningful programming analysis.

   19.We are persuaded, however, that during the June 1, 1961, to May 31, 1964, renewal period, Negro participation per se in WLBT's locally originated programming was limited.For example, the record indicates that during that period there were no Negro appearances on the programs "Teen Tempos," "Romper Room," and "Youth Speaks," and that religious programming of special interest to the Negro community was limited to one program, "Voice of Good Will." While the absence of Negroes in programming which a station broadcasts is an indication of lack of broadcast service to the Negro community, it is by no means determinative of it.n13 Other factors must enter into our consideration of the matter.

   n13 We do not wish to downgrade what we consider to be the crucial significance of active and increased Negro participation in the broadcast communications filed.Indeed, our remarks should certainly not be construed to imply that a broadcast station could serve the needs and interests of any substantial minority group population within its service area by ignoring them.

   20.In this regard, one of the most serious allegations made by the intervenors against WLBT was that the station deliberately interfered with portions of network programming of special interest to the Negro community which it would otherwise have carried and substituted the sign "Sorry -- Cable Trouble " to avoid such programming.This allegation, if proven, would have caused us the utmost concern.However, the examiner, after hearing evidence given on the only two[*437]alleged incidents raised by the intervenors, pertaining to the NBC network programs, a 1955 "Home" program and "The American Revolution of '63 ", concluded that the charge was unfounded.Our review of the record indicates that the examiner did not err in his conclusion.

   21.We also note that there has been a marked improvement in Negro participation in WLBT locally originated programming since June of 1964.Our designation order in this proceeding, although not specifying its weight or significance, permitted the reception of post renewal period programming evidence, since the ultimate issue was the probable future performance of the applicant. We believe that evidence of this nature is properly before us and merits our consideration in our overall evaluation of WLBT's performance.Since the question is not one of proven past conduct found contrary to the public interest which is sought to be weighed against present meritorious conduct or representations that a station will reform in the future, our decisions n14 which hold that such evidence should not be considered are inapposite to the present situation.Here past serious misconduct, while alleged, has not been proven.While prior to June of 1964, WLBT programmed only one Negro religious program, "Voice of Good Will," it now additionally presents "Faith for Life" and "TV Gospel Time." A rotational schedule respecting programming of various religious services, which includes Negro ministers, was instituted by WLBT in 1965.Negro participation in the program "Teen Tempos," while lacking before 1964, was initiated in September of 1965.Although there is some evidence that the courtesy titles of Mr., Mrs., and Miss were not used on occasions when referring to Negroes over the air and that the derogatory terms "Nigger" and "Negra" were used by one and possibly two WLBT commentators at times, the record clearly indicates that such practices have ceased.Other similar programming improvements have been properly noted by the examiner.

   n14 See, e.g., KWK Radio, Inc., 34 FCC 1039, 25 R.R. 577 (1963), and Palmetto Broadcasting Co., 33 FCC 250, 23 R.R. 483 (1962).

   22.To summarize, after our review of all of the evidence of record in this proceeding, we can reach no conclusion other than that the preponderance of the evidence of record firmly establishes that station WLBT has been, and continues to be, satisfactorily complying with our 1960 "Programming Statement," n15 which requires licensees to "take the necessary steps to inform themselves of the real needs and interests of the areas they serve, and to provide programming which in fact constitutes a diligent effort, in good faith, to provide for those needs and interests," including inter alia, service to minority groups.The intervenors' many charges, while most serious on their face, were found by the examiner to be unproven and in this evaluation we concur.We caution, however, against any conclusion that WLBT's performance during the period in question was spotless or a model of perfection to be emulated by other stations.Such a conclusion would not be supportable by the record before us.We only conclude that the intervenors have failed to prove their charges and that the preponderance of the evidence before us establishes that station WLBT has afforded reasonable[*438]opportunity for the use of its facilities by the significant community groups comprising its service area.

   n15 FCC 60-970, 20 R.R. 1901 (1960).

   23.We also concur in the examiner's conclusion regarding issue (c), that there is no evidence in the record which would indicate that WLBT has misrepresented either to the public or to us its programming on the issue of racial discrimination or that it has acted in bad faith respecting the presentation of such programming.Our examination of the record indicates that the examiner did not err in his evaluation of the record before him on that issue, and that renewal of the WLBT license will serve the public interest.

   24.In view of the foregoing, we conclude that the Initial Decision reached a proper result and should, with minor corrections, be affirmed.

   25.While, as stated above, we agree with the examiner's determination that the charges made against WLBT by the intervenors were in large measure not proben, we wish to emphasize that we sincerely appreciate the strenuous efforts exerted by the United Church of Christ and the other intervenors to ascertain the nature of the programming of WLBT and to bring it to our attention.They have performed a valuable public service, and they can be sure that the recent marked improvement in WLBT's local programming which this record discloses is due in no small part to their efforts.

   26.Accordingly, It is ordered, That the request for extension of time in which to file proposed corrections to transcript, filed by Lamar Life Broadcasting Co. on June 14, 1968, Is granted, that the corrections to the transcript, filed June 21, 1968, by Lamar Life Broadcasting Co., Are accepted; and that the proposed corrections to the transcript, filed on June 25, 1968, by the intervenors, Are accepted.

   27.For the foregoing reasons we conclude that the application of Lamar Life Broadcasting Co. for renewal of license of television station WLBT and auxiliary services to operate on channel 3, Jackson,Miss., should be granted, such license to expire June 1, 1970.n16 In its Judgment, filed March 25, 1966, remanding this case, the Court of Appeals for the District of Columbia Circuit "[retained] jurisdiction to dispose of the case when the record is returned following the proceedings on remand."

   n16 Had the 1964 renewal application been granted in the normal course of business it would have expired on June 1, 1967, and a subsequent renewal would expire on June 1, 1970.

   28.Accordingly, the General Counsel Is directed to report these proceedings and this Decision forthwith to the court.

 

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

 


DISSENTING OPINION OF COMMISSIONERS KENNETH A. COX AND NICHOLAS JOHNSON

 

WLBT LICENSE RENEWAL

 

[In re application of Lamar Life Broadcasting Co., Docket No. 16663]

 

I. Background

 

   This case began 4 years ago, when a petition to deny the June 1964 renewal application of JacksonMiss., television station WLBT was filed by three parties. n1 The petitioners were the Office of Communication of the United Church of Christ, Rev. Robert L. T. Smith, and Mr. Aaron Henry.The office is an organization established by the United Church of Christ to protect citizen rights in broadcasting.n2 Messrs. Smith and Henry are leaders of the Mississippi Negro community.n3 Their petition, which represented the culmination of a decade of complaints by Jackson Negroes against WLBT, alleged that the station systematically excluded Negroes from access to its facilities and that it had systematically promoted segregationist views and denied presentation of opposing views supported by Negroes.n4

 

   n1 Petitioners' petition to intervene and to deny application for renewal, Apr. 8, 1964, pp. 1-5.(Hereafter called petition to deny.)

   Initially, the Mississippi Chapter of the American Federation of Labor-Congress of Industrial Organizations also sought to intervene in the 1964 renewal proceedings.Petition protesting grant of application, requesting hearing and for other relief, May 29, 1964. However, the union made it clear when it filed its petition that, "The State AFL-CIO's objections to the renewal of the licenses to these stations do not relate to racial matters * * *." Letter to Chairman E. William Henry, Apr. 30, 1964, p. 1.See also The Clarion Ledger-Jackson Daily News, Apr. 26, 1964, A, p. 14, attachment (unnumbered) to AFL-CIO petition, supra.

   n2 Petitioners' reply to opposition to petition to intervene and to deny application for renewal, July 13, 1964, attachment A, exhibits Nos. 1 and 2.

   n3 Reverend Smith, a resident of Jackson,Miss., is past treasurer of the Mississippi Freedom Democratic Party, a member of the State NAACP, and a former candidate for Congress on the Freedom Democratic ticket for the district embracing the Jackson area.Record, pp. 240-243.

   Aaron Henry is a pharmacist in Clarksville, Miss.He has served as president of theTulhomaCountyNAACP, State president of the Mississippi NAACP, chairman of the Freedom Democratic Party's delegation to the 1964 National Democratic Convention, State chairman of the Mississippi Voter Registration Educational League, and 1963 candidate for Governor of Mississippi on the Freedom Democratic Party ticket.Record, pp. 520-525.

   n4 Petition to deny, pp. 2-3, No. 1, supra.

 

    [*443] The FCC refused to accord the petitioners official standing to participate in the renewal proceeding.n5 But the Commission did purport to take seriously their claims -- as well as the findings of two FCC investigators who had been dispatched to scrutinize WLBT's activities.n6 The Commission took the highly unusual step of granting the station a 1-year license, plainly probationary in nature.Renewal was conditioned on the station's strict adherence to the fairness doctrine, prompt initiation of contacts with Negro leaders, and the command that WLBT "immediately cease discriminatory programming patterns." n7

 

   n5 Lamar Life Broadcasting Company, 38 FCC 1143, 1149 (1965).

   n6 Id. at 1154.

   n7 Ibid.

 

   Unsatisfied, the petitioners took an appeal to the U.S. Court of Appeals for the District of Columbia Circuit.The court reversed. n8 In a decision which one distinguished commentator has said will "revolutionize the present law of participation in administrative proceedings," n9 the court held: (1) That petitioners had "standing" to appear before the FCC, in their capacity as representatives of an important segment of the Jackson viewing public; and, (2) that the petitioners' allegations were sufficiently serious and plausible to require the agency to hold a full evidentiary hearing to decide whether WLBT's record merited renewal of its license."[A] history of programming misconduct of the kind alleged," that court said, "would preclude, as a matter of law, the required finding that renewal of the license would serve the public interests." n10

 

   n8 Office of Communication of United Church of Christ v. F.C.C., 359 F. 2d 994 (D.C. Cir. 1966).

   n9 Reich, "The Law of the Planned Society," 75 Yale L.J. 1228, 1255 (1966).

   n10 359 F.2d at 1007.

 

   The court ordered the Commission to permit public representatives to participate in the case because, it held, experience had taught that the public interest could not be trusted to the agency's exclusive discretion:

 

The theory that the Commission can always effectively represent the listener interests in a renewal proceeding without the aid and participation of legitimate listener representatives fulfilling the role of private attorneys general is one of those assumptions we collectively try to work with so long as they are reasonably adequate.When it becomes clear, as it does to us now, that it is no longer a valid assumption which stands up under the realities of actual experience, neither we nor the Commission can continue to rely on it.n11

 

   n11 Id. at 1003-4.

 

Now, 2 years after the court issued its opinion, the Commission has reconsidered the facts requiring the original 1-year renewal, this time with the aid of the petitioners' participation in a full evidentiary hearing. n12

 

   n12 It should be noted that the petitioners' aid to the Commission over the extended time of this action is not a routine occurrence at the FCC as the majority tacitly agrees in its opinion: "* * * we wish to emphasize that we sincerely appreciate the strenuous efforts exerted by the United Church of Christ and the other intervenors to ascertain the nature of the programming of WLBT and to bring it to our attention.They have performed a valuable public service * * *." Majority Opinion at par. 25.

 

   The result is dismaying.The Commission's former show of concern for the public interest has been replaced by all-out indifference.In May 1965, the Commission found WLBT's performance sufficiently disturbing to warrant a special, short-term, probationary renewal. n13 In June 1968, the Commission looks over the same record and declares it clean enough to justify a routine, rubberstamped, 3-year renewal.Thus, 3 years later, the Commission awards what would have been the licensee's lot had the church and its allies never mustered the resources necessary to prosecute this litigation.Indeed, the Commission today awards WLBT two full-term renewals -- for the periods 1964-67 and 1967-70, with no special terms or conditions.n14 What was once an unfortunate though understandable and corrigible -- attempt by[*444]the agency to ease its administrative chores has now become a discredit to the administrative process. It is a serious piece of obstruction to participatory democracy and the efforts of American government to establish confidence among Negro and other citizens who have been victimized by discrimination.n15

 

   n13 38 FCC at 1154-1155. When the Commission designated this matter for hearing, after its remand from the court of appeals, the Commission's earlier opinion was "withdrawn," 3 FCC 2d 784, 785 (1966). Whether or not the legal effect of this "withdrawal" is to completely vitiate the findings of fact and conclusions of law recorded in that opinion, as well as to vacate the particular remedy based on those findings and conclusions, this certainly does not change the historical fact that the Commission has found facts on past occasions wholly at odds with the "findings" underlying today's decision.

   n14 In other words, the 1965 decision having been vacated, no final decision has been reached until today on the 1964-67 renewal period.The majority correctly notes that by reason of the delay in bringing this case to final disposition, we are now called upon as well to act upon the current renewal period, which extends through 1970.Majority Opinion note 15.Of course today 's decision is not "final" since the court retained jurisdiction to make a final disposition of the case.Majority Opinion at par. 27.

   n15 See, e.g., Report of the National Advisory Commission on Civil Disorders, ch.15, "The News Media and the Disorders," pp. 201-213 (1968).

 

   Today we dispose of the three issues the Commission ordered considered in the hearing which took place after the controversy was remanded by the court of appeals.The first of these questions is whether WLBT has been fair, within the meaning of the Commission's fairness doctrine, in its treatment of controversial issues of public importance.Here paramount concern is focused on the political issue of integration and other matters related to race relations.The second question is whether WLBT has permitted Negroes to participate meaningfully in its programming.The third question is whether the licensee misrepresented its programming policies and other important matters to the Commission and to the public.

   The Commission today holds, on each of these points, that WLBT's record is sufficiently spotless, its service to the public interest sufficiently meritorious, to justify renewal of its broadcasting license.To reach this extraordinary result, the Commission uses extraordinary techniques.

   First, it disregards standards for conducting administrative hearings established by its own precedents, n16 and even by the court of appeals in this very case.n17 New standards of procedure favoring the applicant-licensee are substituted, without which today's decision would be inconceivable.Second, the Commission disregards and misreads the facts adduced at the hearing and in previous complaints against WLBT brought to its attention over the past decade. n18

 

   n16 See notes 28-31, infra, and accompanying text.

   n17 See notes 20-27, infra, and accompanying text.

   n18 See pt. III, infra.

  

II. How the Commission Recasts Procedural Standards to Favor the Renewal Applicant

 

   A. The period during which the applicant's performance was subject to evaluation: How the Commission takes the spotlight off the applicant's performance during the relevant 1961-64 period, when WLBT was a blatant mouthpiece for segregationist views, and focuses it instead on the irrelevant post-1964 period when its programming has undergone minimal improvements

 

   The threshold question we face in passing on the issues at stake in this case is to what period must we look for evidence?Originally this problem was not a problem at all.The facts were the programming practices of WLBT during the period preceding the 1964 filing of its renewal application.This meant, primarily, the years 1961-64 -- the license period immediately prior to the application's filing, and license periods previous to that, dating back to 1953 when the station first went on the air.

   Since the date is now 1968, not 1964, the question arises as to what weight, if any, should be given WLBT's programming after its renewal application was filed.This question is of the first importance, since it is generally agreed that the church's petition put the fear of God into[*445]WLBT's management and some measure of improvement has occurred with respect to its programming policies since that time.n19

 

   n19 See notes 92-95, infra, and accompanying text.

 

   The court, in its decision remanding the case for a hearing, declined to pass on the question of the relevance, if any, of WLBT's performance after its application was filed, since the Commission itself had not ruled on this point. But there was no doubt that the importance, if any, of post-application performance was to be distinctly secondary to past performance.These instructions from the court were well grounded in precedent and policy.

   The court cautioned the Commission against allowing WLBT to salvage its case by putting on a good show while its renewal application was pending.In doing so it said:

   We agree [with the thrust of the Commission's decision to grant WLBT a 1-year renewal] that a history of programming misconduct of the kind alleged would preclude, as a matter of law, the required finding that renewal of the license would serve the public interest.It is important to bear in mind, moreover, that although in granting an initial license the Commission must of necessity engage in some degree of forecasting future performance, in a renewal proceeding past performance is its best criterion.When past performance is in conflict with the public interest, a very heavy burden rests on the renewal applicant to show how a renewal can be reconciled with the public interest.Like public officials charged with a public trust, a renewal applicant, as we noted in our discussion of standing, must literally "run on his record." [Emphasis added.] n20

 

   n20 Office of Communication of the United Church of Christ v. FCC, 359 F. 2d 997, 1007 (D.C. Cir. 1966).

 

Gradually, as this proceeding has gone through its various phases inside the Commission, the court's admonition to concentrate on the applicant's past performance has been pushed further and further into the background.

   The first stage after remand was the Commission's order designating the matter for an evidentiary hearing, in which it specified the questions on which he hearing examiner was to receive evidence offered by the parties.The Commission began the process of clouding the issue by instructing the examiner that the "ultimate issue here is the probable future performance of the applicant with respect to serving the public interest * * *." n21 Not one to disregard a hint from his superiors, the examiner seized on this phrase even though the Commission had guardedly referred to the relevance of post application evidence by saying that –

 

   n21 Lamar Life Broadcasting Co., 3 FCC 2d 784, 787 (1966). But see Commissioner Cox's dissenting opinion, expressing his concern at the direction in which the majority was heading, 3 FCC 2d at 789-790. See also his objection to the majority's denial of reconsideration, 5 FCC 2d 37, 46-48 (1966).

 

   In the circumstances, we believe that evidence of this nature should be received, without here deciding its weight or significance in the overall hearing record to be made before us.n22

 

n22 3 FCC 2d 784, 787, note 2.

 

The record of the hearing contains numerous instances in which the examiner sloughed off the efforts of the church's counsel to remind him of the relative insignificance of post application performance.n23

 

   n23 Counsel for the petitioners made a general objection to all such evidence early in the proceeding: "Let me state at this time, it is an issue that will soon come up repeatedly in the course of the hearing, that the petitioners object to the receipt of any evidence about improvements in programs following the filing of the petition * * *." Record, 323.

 

   At length, when the examiner drafted his initial decision, he selectively quoted the Commission's decision so as to render "probable future performance" the only standard he had to apply.Indeed, his opinion states simply that "the renewal period is June 1, 1964, to May 31, 1967." n24

 

   n24 Initial Decision, conclusions, par. 1.

 

   What is worse, the examiner made little or no effort, in describing, analyzing, or evaluating the evidence, even to segregate the facts of the 1961-64 period from those of the 1964-67 period.n25 Thus the Commission [*446](or a court), in reviewing his decision, has no ready basis for determining what the applicant's "record" was at all, let alone whether its improvements were such that they should outweigh past derelictions.The majority did not, however, seek to have counsel dispel the confusion created by the examiner's decision by raising this issue during oral argument.

 

   n25 Initial Decision, passim.

 

   In today's opinion explaining its decision to renew the license without its previous reservations, the majority drops any pretense of making the applicant "run on his record." It states simply, with bland indifference to the gist of its own earlier decisions, and with total silence as to the remand instructions of the court:

   Since we considered the ultimate issue to be the probable future performance of the applicant, we directed, without specifying the weight or significance to be accorded it, that evidence relating to station operation up to the date of the hearing was to be admitted by the hearing examiner.n26

 

   n26 Majority Opinion at par. 4.

 

As a glance through the Commission's brief opinion will show, there is in fact no difference at all in the weight accorded evidence drawn from the applicant's "record" and evidence of its performance after the petition was filed.n27 Every fact which appears favorable to the Commission's result is simply plucked from the record and held proudly aloft, with no attempt to put it in any sort of meaningful perspective.

 

   n27 Id. at pars. 17-22.

 

   Before this case began, Commission precedent left no room for doubt that a broadcast licensee would not be permitted to profit from an "upgrading" of programming practices after its renewal application had been designated for hearing.In three cases decided between 1960 and 1963 this principle was reaffirmed. In each of these cases the Commission refused to admit into renewal hearings evidence of improved performance after the application for renewal was filed. n28

   n28 KWK Radio, Inc., 34 FCC 1039 (1963); Palmetto Broadcasting Co., 33 FCC 250 (1962). In KORD, Inc., 21 P. & F. Radio Reg. 781 (1963), the Commission stated that its decision should be read as putting broadcasters on notice that they would be held to their representations and not be permitted to upgrade their commercial practices after designation for renewal hearing.The same considerations should apply to prevent their upgrading serious and repeated violation of the fairness doctrine.

 

   Of course, administrative precedent can be ignored when its teachings appear inconvenient. When the court of appeals put WLBT's license in jeopardy it challenged practices which serve to shelter broadcast licensees from meaningful public supervision. These earlier precedents have, as a result, been ignored in this case; post application evidence has been admitted and relied upon.n29 Concurrently, as if to give some air of legitimacy to its decision to rely on post application performance, the Commission silently undermined these earlier precedents in a 1966 decision, Melody Music, Inc.n30

   n29 Majority Opinion at par. 21.

   n30 2 FCC 2d 958 (1966).

 

   But neither Melody Music nor the rhetoric in the majority opinion released today should obscure the fact that a clear line of Commission precedents have been thrust aside to protect the license of WLBT.

   The precedents which the Commission forgets, and the court's instructions which it ignores, are, moreover, based on solid and sensible considerations of policy. The purposes of the Communications Act cannot be enforced in any meaningful sense unless broadcast licensees expect to be called to account at renewal time.If they know that, once their application has been set for hearing, they will be able to save their license by a show of improvement and a profusion of promises to sin no more, the statute will be a meaningless piece of paper.

   This principle is well understood at the Commission. Indeed, no[*447] better exposition of its purposes exists than the response of counsel for the Broadcast Bureau to a question put by Commissioner Cox:

 

   Mr. Cox.What is your position as to evidence as to the performance of the station since 1964?

   Mr. KEHOE.We have taken a consistent position in prior cases, Mr. Commissioner, after the spotlight of inquiry, the spotlight of designation, or in this instance the spotlight of the petition to deny, that evidence of programming post that has very little weight, very little decisional significance, because each licensee will improve when he knows the Commission is investigating * * *.n31

 

   n31 Record, p. 1776.Mr. Kehoe did, however, advert to the Melody Music case, "which," he said, "indicates that the [evidence] post designation has a great deal of relevance."

 

Whether the majority properly used the Melody Music case as an occasion to break Commission precedent, and thereby enfeeble the Communications Act, may be considered by some to be a difficult question.But there can be no room for doubt whatsoever as to the invalidity of today's decision flouting the plain language of the court in this very case and excusing this licensee from the embarrassing necessity to "run on his record."

 

   B. Allocation of the burden of proof: How the Commission contradicted the express language of the court of appeals in order to impose on the church an impossible burden of proof

 

   Deciding which of the parties to a case has the "burden of proof" is one of those tricky little points of procedure which lawyers understand to be absolutely vital to the outcome of some cases.In this case the majority devises a rule which makes it virtually impossible for these petitioners to succeed in their challenge to WLBT, or for any other member of the public who might seek to enforce the statutory obligations of broadcast licensees in some future renewal proceeding. The Commission places on the petitioners the full burden of proof on the two most important issues, and acts as if it had the burden on the third substantive issue as well. One would think this rather backward, that it should be the broadcaster seeking renewal who must demonstrate his service of "the public interest," not the public which must prove such a presumption false. Since the broadcast station, not the listener, is necessarily in control of virtually all relevant information about its past programming practices, such as logs, tapes and scripts, the broadcaster is safe from any challenge. For all he has to do is sit back and deny allegations, not having any obligation to reach into his records for evidence to refute a plausible charge by a member of his viewing public.n32

 

   n32 It is true that many of WLBT's logs, tapes, and scripts were made available to petitioners in connection with the hearing, though this may have come too late to be of real use to them. However, we believe that petitioners sustained their burden of going forward with the evidence by showings that WLBT had, in specified respects, failed to meet its fairness obligations and had failed to serve its Negro viewers adequately, and that the record also contains evidence clearly indicating misrepresentations by the station to the Commission and the public.It therefore became incumbent upon WLBT, from its records or through other evidence, to rebut or explain or offset these showings in the discharge of its burden of proof on these three issues -- and on the ultimate issue of whether the public interest will be served by renewal of its license. This it did not do.

 

   The majority claims in note 8 of its opinion that the question as to who had the burden of proof in this proceeding is now "mooted," by virtue of the fact (if it can be termed a "fact") that they purport to have based their decision on a "preponderance" of the evidence. Since the majority undertook little or no independent review of the record, but based its decision on the examiner's findings and conclusions, it is unclear what its claim means in any event. The examiner consistently and without exception analyzed the evidence in terms which reflect his assumption (an assumption which he several times made explicit) that the burden was on the petitioners. He consistently noted that the petitioners failed to "prove" this allegation or that contention; he did not find that the applicants had amassed a preponderance of the evidence to support their position. The majority adopted the examiner's terminology; there is nothing in their opinion to suggest that their assumptions as to the distribution of the burden of persuasion differed from the examiner's. If WLBT did in fact have the burden of persuasion in this case, as the court of appeals held that it does, the questions before us would be: Did the station affirmatively establish that it has complied with the fairness doctrine? Did it establish that it has provided service to the Negro community in its coverage area?Did it establish that it has not misrepresented its policies to the public and the Commission?

Neither the examiner nor the Commission majority demanded of WLBT that it answer those questions satisfactorily. Certainly a preponderance of the evidence on this record would not support the assertion that the station had satisfactorily answered any or all of those questions.

   See the opinion of Commissioner Cox, dissenting to the Commission's refusal of reconsideration to its designation order, 5 FCC 2d 37, 43-45, especially his query:

 

   How can the man who is denied access to WLBT know more about his unsuccessful effort to present his viewpoint than the representative of the station who denied him time to discuss the issue? Certainly, the broadcaster keeps records primarily of the programming he presents, but if those records show that he has consistently presented only one side of a major issue, then they provide documentary evidence of his violation of Commission policy -- whether this be termed omission or commission. Petitioners can testify that they heard the segregationist point of view broadcast, that they requested opportunity to answer, that they were denied, and that they never heard their point of view presented; but they can't demonstrate conclusively that, at some time when they were not monitoring the station, their view was not broadcast. The licensee, with its records, can do this. Since it is the one seeking to meet the statutory burden of demonstrating that the public interest will be served by renewal of its license, since the issue raised goes to the essential integrity of its broadcast operation, and since it is in at least as good a position as its critics to know the facts, it seems to me not only proper but essential that -- once it has been apprised of the specifics of petitioners' complaints it should have the burden of proof as to the issues raised, 5 FCC 2d at 43-44.

 

The very nature of a public challenge to a broadcaster's performance is such as to require some reevaluation of concepts of "burden of proof." The broadcaster's product -- unlike that of the print media -- is ephemeral. Is a broadcaster doing his job? The answer is, to borrow from a currently popular song, "Blowin' in the Wind." To bottle a broadcaster's 3-year performance is as difficult as preserving a ballet. As President Johnson said, in addressing the National Association of Broadcasters in Chicago on Apr. 1, 1968:

 

 Your commentary carries an added element of uncertainty. Unlike the printed media, television writes on the wind. There is no accumulated record which the historian can examine later with a 20-20 vision of hindsight, asking these questions: "How fair was he tonight? How impartial was he today? How honest was he all along?"

 

Well, I hope the National Association of Broadcasters * * * will point the way to all of us in developing this kind of a report because history is going to be asking very hard questions about our times and the period through which we are passing.

 

This very fundamental and unique quality of the broadcaster's product simply cannot be ignored by the Commission in devising the procedures and standards for public contest of license renewal. It cannot treat the burden of going forward with evidence about radio and television programs as comparable to authenticating a legal document, or proving the facts surrounding an auto accident.

   And throughout proceedings such as these one must bear in mind the very high calling and responsibility that is the licensee's. We have recently expressed concern about the adequacy of local programming performance by some Oklahoma broadcasters. Broadcasting in America and the FCC's License Renewal Process: An Oklahoma Case Study, a statement by Commissioners Kenneth A. Cox and Nicholas Johnson on the occasion of the FCC's renewal of the licenses of Oklahoma broadcasters for a 3-year term beginning June 1, 1968. It was of sufficient concern to cause us to urge that license renewals be withheld pending further inquiry. The point is that service of "the public interest" imposes a higher responsibility than simply the avoidance of complaints, the absence of fairness violations, the refusal to antagonize one's audience, the providing of unblemished mediocrity. It imposes the responsibility affirmatively to seek to serve one's community, to strive for excellence, to make an extra effort. A successful public challenge of a license renewal need not, in our judgment, require the demonstration of violations of law or Commission regulations. We do not believe the FCC majority is warranted in blithely rewarding mediocrity with an FCC "public interest" imprimatur. We believe it did that, in some instances, with the Oklahoma renewals, as we explained in the Oklahoma report cited supra. We believe the license renewal of WLBT has been altogether too involved with the minutiae of the petitioners' complaints against the station, and that attention has been thereby diverted from the evidence (if any) of the station's response to its higher calling to affirmatively and creatively serve the needs of Jackson. That the majority would, nonetheless, actually reach the result it has in the face of these complaints is the more regrettable.

   This is an unfair burden for the Commission to impose on members of the public who are sufficiently concerned about a licensee's performance to take the time, trouble, and expense to engage in litigation before this agency.But, far worse, it is at odds with the Commission's own precedents; and, as in the case of the problem of defining the importance of the post application period, the Commission's action on the question of burden of proof flatly contradicts the express language of the court of appeals in this very case itself.

   The question of the burden of proof in this case was the subject of an earlier, interlocutory appeal by the petitioners.n33 After the court of appeals remanded the case the Commission majority held that the burden of proof fell on the church and the other intervenors as to the questions of whether WLBT had abided by the fairness doctrine[*448]and whether it had afforded Negroes access to its facilities.Commissioner Cox dissented to this ruling.He pointed out that it flouted very recent FCC decisions directly on point, and that it made a mockery of the notion of public participation in the renewal process, since it put barriers in the way of public intervention which were altogether unfair and insuperable. n34

 

   n33 The court's decision of this appeal is reported only at 8 P & F. Radio Reg. 2d 2081 (D.C. Cir. 1966).

   n34 See note 32, supra.

 

   The petitioners appealed the ruling. The court upheld the Commission's designation order, but only because it "understood" that the Commission majority meant by its resolution of the burden of proof question precisely what Commissioner Cox meant by the resolution he offered in his dissent. The court, in other words, invoked a familiar technique; it made possible its adoption of an erroneous decision of a subordinate agency by changing the meaning of the decision. The court's precise language makes this interpretation of its order unavoidable:

   In our view it should not be necessary * * * for this court to supervise the details of conduct of hearings before the Commission by the device of periodic revision of the language used in opinions. Only the most extraordinary circumstances would warrant our intervention by this means; such circumstances do not exist here inasmuch as * * * we assume that * * * the Commission's reference to "the burden of proof" in respect to issues (a), (b), and (c) [fairness, access, misrepresentation] is intended to mean only the burden of going forward with evidence in the first instance.[Emphasis added.] n35

 

   n35 Office of Communication of United Church of Christ v. F.C.C., 8 P. & F. Radio Reg. 2d 2081 (D.C. Cir. 1966).

 

Unmistakable as the meaning of this plain and simple memorandum may appear to be, even to the untutored eye, the Commission and the hearing examiner seemingly ignored it altogether.

   When the case came back to the Commission it proceeded to hearing without any intervening comment from the Commissioners themselves. The hearing examiner considered the Commission's original imposition of the full burden of proof on the petitioners to be altogether unaffected by the court's memorandum on appeal. This he made clear in his initial decision and in several exchanges with counsel during the course of the hearing.Among the most revealing is the following dialogue between counsel for petitioners and Hearing Examiner Kyle:

 

   Mr. MOORE.* * *.

   I just want to state for the record that as I understand the burden of proof, the burden of proof on all issues is on the station and the only burden on the applicant [the church] and the Bureau is the burden of going forward.

   That is my understanding of the interpretation which has been placed on the Commission's order by the court of appeals.

   PRESIDING EXAMINER. No, that is not my interpretation. My interpretation is, by the Commission action, that the burden of proof is primarily upon the intervenors [the church] on issues A and B [fairness and access], * * * and you can't by waving the magic wand shift the burden of proof to this applicant [the station] or to the Bureau.

   If you will look at that last order of what the Commission said, I think it's very, very clear, and I have certainly gone under that impression, and if I am wrong, I am wrong on that one, because I had extra copies of the issues made up if anyone wanted to see them.n36

 

   n36 Record, 304-305.

The examiner's frank equation of the force of a judicial ruling with the force of a "magic wand" is, to say the least, disarming.

   And the examiner did not merely state that he considered the burden on the petitioners. He applied it to them with a vengeance, as [*449] perusal of his initial decision and the hearing record will readily demonstrate.n37 This defiance of the court had a profound impact on the conduct and outcome of the hearing. Consider the examiner's refusal to allow Rev. R. Edwin King to testify about his conversation with an employee of WLBT because the WLBT individual refused to identify himself upon request. Rev. King had called the station immediately after the 1963 NBC special, "The American Revolution '63." The show had been interrupted by a WLBT "Sorry, cable trouble" sign at the exact point in the program where the Jackson, Miss., Woolworth sit-in was to appear. According to Rev. King, he telephoned the station and asked to speak with "the manager" (who was at that time White Citizens' Council member Fred Beard). A voice answered Rev. King, refused to be identified, and told him that the station had purposefully substituted the cable-trouble sign for the 40-second Woolworth segment. The examiner ordered this testimony stricken because, "You can't quote some undisclosed person." n38 The reason the person taking WLBT's phone calls was undisclosed was because he refused to identify himself, not because the witness failed to remember. Needless to say, the examiner offered no suggestion as to how the church might go about meeting this kind of "burden."

 

n37 Initial Decision, preliminary statement, pars. 3-4, conclusions, pars. 1-4, 26-29, 33.An illuminating instance of the examiner's vigor in casting the burden on the petitioners occurred during the petitioners' examination of Mr. William Hodding Carter III, editor of the Delta Democrat Times in Greenville, Miss. Asked to recount an instance known to him where the program "Comment" dealt with racial matters, Mr. Carter's testimony was stricken from the record by the examiner, who stated, "I think he had better specify the broadcast, the hour, and who was making the broadcast. If he remembers having seen it, he certainly ought to remember who was a giving it." Record, 697, 279-280, 299-305, 699.

As an example of the examiner's apparent solicitude toward representatives of WLBT-as contrasted to his stern demands on petitioners' witnesses -- compare his treatment of WLBT witness Dick Sanders.Mr. Sanders testified that he was unable to remember the broadcast date of a "Comment" delivered by him sometime in June 1962.The examiner gratuitously interposed:

My position is that I am disturbed about asking the witness this type of questions [sic] when he is here from up in Bethesda and has not had access to these records for some and asking him when he made certain broadcasts and certain statements.

I share the views of the witness that I can't remember what happened almost and to ask a witness to testify for 1962 or 1964 when he has made a broadcast when a man has made as many broadcasts as this man has is almost impossible and we will be here an awfully long time.Record, 1080-1081.

   n38 Record, 721.

 

   By contrast, on another occasion, the examiner quotes copiously from the testimony of WLBT witness Fred Beard (station manager from 1953 to 1965) in order to support an apparent finding that a program called "The Citizens' Council Forum," carried frequently by WLBT for about 5 years, was not designed to promote segregationist views.n39 No tapes, scripts, or transcripts of these programs were produced at the hearing. In effect, the examiner "believed" Beard 's testimony in preference to the contrary testimony of church witnesses (and in preference to general knowledge and the declared objectives of the White Citizens' Council movement in the Deep South).n40

 

   n39 Initial Decision, findings of fact, pars. 34-35.

   n40 Id. at par. 35.

 

   If the examiner had followed the court's direction he could not make these rulings or reach these findings of fact. The church plainly satisfied the burden of going forward with evidence to support its allegations. Under the court's decision, it then became the obligation of WLBT to produce the evidence necessary to confirm or deny the charges. This it did not do. And but for the Commission's extraordinary readiness to ignore the ground rules under which the court had instructed it to operate WLBT could not possibly succeed on these particular questions, or on the case as a whole.

   In affirming the examiner the Commission ignores the church's request that it read the court's instructions on allocation of the burden of proof. The majority opinion states simply, as if the court had never spoken to the contrary, "The burden of proof with respect to issues (a) and (b) [fairness and access] was placed upon the intervenors [by the Commission's earlier decision designating the matter for hearing] * * *." n41

n41 Majority Opinion, at par. 3.

 

   Having placed the burden on the petitioners to substantiate their allegations, the examiner found against them on each, and hence found that license renewal will serve the public interest. The examiner concluded that the intervenors had "woefully failed" to support their[*450]charges.n42 The Commission is a bit more cautious than the examiner in attacking the petitioners ' credibility. But its reliance on its earlier decision to impose the burden of proof on the intervenors is no less pronounced:

 

   n42 Initial Decision, conclusions, par. 32.

 

While we cannot conclude that the licensee's history * * * has been exemplary, we must agree with the examiner's conclusion that the intervenors have failed to prove the many serious incidents which they alleged * * *.The preponderance of the evidence firmly establishes that station WLBT has been and continues to be satisfactorily complying with our 1960 programming statement * * *.[There] is no evidence in the record which would indicate that WLBT has misrepresented either to the public or to us its programming on the issue of racial discrimination * * *.n43

 

   n43 Majority Opinion at pars. 14, 22, 23.

 

So much for the procedural handicaps thrown in the way of the petitioners. What of the merits of their case?

 

III.The Merits of the Case

 

   Having shifted the full burden of proof to the petitioners, and having allowed themselves freedom to consider evidence of programming improvements made since 1964, the Commission and the hearing examiner addressed the merits of the case. The three substantive issues to be resolved were:

 

   (a) Whether station WLBT has afforded reasonable opportunity for the discussion of conflicting views on issues of public importance:

   (b) Whether station WLBT has afforded reasonable opportunity for the use of its broadcasting facilities by the significant groups comprising the community of its service area;

   (c) Whether station WLBT has acted in good faith with respect to the presentation of programs dealing with the issue of racial discrimination, and, particularly, whether it has misrepresented to the public or the Commission with respect to the presentation of such programming.n44

 

   n44 3 FCC 2d 784, 786, 787.

 

In attacking each of these three issues, the Commission majority employs a different combination of three question of WLBT's adherence to the fairness doctrine, the majority techniques. On issue (a), the mainly relies on its device of throwing an impossible burden of proof on the church. On issue (b), the question of WLBT's willingness to provide Negroes with access to its facilities, the Commission cannot deny the incontrovertible fact that Negroes virtually never appeared on WLBT during the 1961-64 period; hence the majority terms the station's pre-application performance subpar but not disqualifying, then saves the station by pointing to alleged improvements since the application was filed.On issue (c), the question of whether WLBT lied to the Commission about its policies, the Commission simply shuts its eyes to the facts and asserts that misrepresentations which did in fact occur did not occur.

 

   A. WLBT and the fairness doctrine: How the Commission manipulated the burden of proof and ignored facts found in the record and in previous Commission decisions to exonerate WLBT from the [*451] charge that it systematically denied reasonable opportunity for expression of pro-integration views supported by Jackson's Negro community.

 

   The Commission supports its determination that WLBT abided by the dictates of the Commission's fairness doctrine in paragraphs 13-16 of its extraordinary brief opinion. In paragraph 13 the majority mentions three incidents, each of which the examiner found not to constitute fairness violations. Without describing the examiner's reasoning, or mentioning the contrary arguments proffered by the petitioners, the majority simply asserts its support for the examiner's conclusions. The Commission then marches on to point to two "prime [examples]" of the petitioners' failure to prove (meet their burden of proof on) the "many serious incidents which they alleged." n45

 

   n45 Majority Opinion at pars. 14 and 15.

 

   The first of these is the 1957 forum program on "The Little Rock Crisis" presented by WLBT. On this program three Mississippi public officials appeared to present their views of the crisis. The three officials were Gov. James P. Coleman, Senator James O. Eastland, and Congressman John Bell Williams. The testimony of church witnesses alleged that the officials uniformly backed segregation and blamed the outbreak of violence on the Little Rock Negroes who attempted to integrate Little Rock's Central High School.n46 This testimony was not contradicted.

 

   n46 See, e.g., Record, 677-679.

 

   Here is what the Commission says to get WLBT off the hook as far as the program is concerned:

   While we believe that the requirements of the fairness doctrine would have applied to the program had it been a partisan one, despite WLBT's contention that it was only a report to the people by elected public officials, the record is devoid of any evidence as to the content of the program, other than the unsubstantiated allegation that it discussed the maintenance of segregation. Accordingly, the record does not support the intervenors' contention that WLBT was chargeable with a violation of the fairness doctrine in its presentation of that program.[Emphasis added.] n47

 

   n47 Majority Opinion at par. 14.

 

The Commission's reasoning here is mysterious. Does the Commission mean that programs carrying the views of "elected public officials" are not "partisan," whatever that means? Do public officials not hold partisan views? And whether they do or not, are programs on which they appear presumptively not subject to the fairness doctrine? When did this word "partisan" become some sort of talisman which determines when the fairness doctrine is applicable to programs devoted to the expression of views on controversial issues of public importance?

   In any event, whatever one is to make of this new category of "partisan" programs, the Commission's assertion that the record does not support the petitioners' contentions simply will not wash. It is contradicted by the Commission's own description of the state of the record on this point. The majority says that nothing other than "unsubstantiated allegation" supports this conclusion. But lawyers would describe what they term "unsubstantiated allegation" as "uncontradicted testimony. " Testimony is evidence. In this record there is no evidence contradicting the petitioners' statements that three officials discussed favorably the maintenance of segregation. On this record, [*452] therefore, the contention stands -- even if one believe the petitioners have the burden of proof, as the Commission holds in violation of the court of appeals' instructions. What the Commission must mean, therefore, is that the intervenors not only have to produce a preponderance of evidence on their side of the case, but also have to produce tapes or scripts to prove that uncontradicted and utterly plausible statements are accurate.n48

 

n48 As Dr. Beittel responded to counsel for WLBT, when asked about the specific appearances of station newscaster Alon Bee, "I don't have the log. You do. " Record, 491. Nevertheless, petitioners did go to considerable lengths to document their allegations. Perhaps the most striking example is the monitoring study conducted under the supervision of Dr. Everett C. Parker, an experienced communications researcher. Record, 103-113. The examiner rejected the monitoring study's validity partly on the ground that programs not contained in the survey analysis had been "arbitrarily" excluded. Initial Decision, findings of fact, par. 31. But the study was not "arbitrary," unless by that the examiner interprets a de-emphasis on network programming in preference to locally broadcast programs "arbitrary. " Record, 138. Indeed, as petitioners' exhibit No. 4 shows, the information cataloged in the monitoring study is far more comprehensive than the mere listing of program titles contained in station logs. Lamar exhibit No. 50. In the ordinary course of events, the station seeking renewal is in full command of all hard evidence about program content. If it selectively loses scripts, the public has no way to prove categorically that certain statements were made, absent a tape recording fortuitously made at the time. For an example of selective scripts lost by WLBT, see its inability to find the "Comment" program delivered by Mr. Sanders, although the answering "Comment" program of Mr. Charles Evers was produced. Record, 1495.

   This is all, of course, rank foolishness. In 1959, the Commission thrust aside an NAACP complaint about WLBT's failure to afford an opportunity to present views opposed to those expressed on this particular program (filed, incidentally, in 1957, 2 years before the Commission mustered a reply).Then the ground of the Commission's demurrer was the legalistic ploy that the complaint appeared to be a request for equal time, in accordance with section 315, and that section 315 was not applicable to the program because the officials were not candidates for office.n49 Now the Commission concedes that the broader fairness doctrine might be the appropriate legal standard to apply to the incident. This time the excuse for exonerating the station from a violation of its obligations is that the program was not "partisan." n49

 

   n49 Letter addressed to Mr. Medgar W. Evers from Miss Mary Jane Morris, by direction of the Commission, Nov. 19, 1957, p. 1.

 

   The "partisan" smokescreen is no less transparent than the section 315 dodge which the Commission invoked in 1959 to avoid enforcing the fairness doctrine. Indeed, the Commission has already characterized this incident as a fairness violation in the 1965-1-year renewal, and the matter should not require reexamination at this time. n50 Unless one accepts the validity of the novel "partisan" concept, and its applicability on this record, WLBT flouted the most elemental principles of broadcast fairness when it refused to grant an opportunity for the expression of anti-segregation views in the wake of its 1957 forum on Little Rock.

 

   n50 Lamar Life Broadcasting Co., 38 FCC 1143, 1146 (1965).

 

   The second of the Commission's two "prime examples" of failure by the petitioners to prove their fairness contentions raises serious questions about the Commission's manipulation of the burden of proof. This example involves WLBT's carriage of a series of Freedom Bookstore announcements during much of the renewal period. n51 "While they assert that the organization is an anti-civil rights, prosegregation group," intones the majority, "there is no probative evidence to this effect." [Emphasis added.] n52 Once again, the majority holds that testimony, even if uncontradicted, needs some measure of confirmation before it can be accepted as "probative."

 

   n51 Majority Opinion at par. 15.

   n52 Ibid.

 

   It is true that evidence as to the nature of the Freedom Bookstore is not in abundance in the record, as the majority says. But there is a reason for that. The reason is that the examiner emphatically, continually, and without exception rejected the numerous efforts by witnesses for the church to get such evidence into the record.n53 The majority says, in approving the examiner's rejection of exhibit 18 (a letter dealing with the bookstore from church witness Dr. Beittel), that "such evidence, were it within Dr. Beittel's personal knowledge, should have been offered through him and not through a letter." n54 But such evidence was offered by Dr. Beittel at the hearing. The examiner rejected his attempt to testify about the bookstore. n55 Other church witnesses offered [*453] to testify about the bookstore. They, too, without exception, were denied permission by the examiner. n56 As the examiner told petitioners' counsel, "I don't see any issue that has anything to do with what any bookstore sells in Jackson, Miss. I think you are limited to issues A and B." n57 If that statement was not enough to make the examiner's position clear, he made it clear beyond cavil at a later point during the hearing when he put a rhetorical question to counsel for WLBT:

 

   n53 See e.g., Record, 986-987.

   n54 Majority Opinion at par. 15.

   n55 Counsel for petitioner first attempted to introduce a letter written June 29, 1963, by Dr. Beittel to FCC Chairman E. William Henry. Among the complaints listed by Dr. Beittel in his letter was the charge that Freedom Bookstore propagated the philosophy of the White Citizens' Council and that station manager Fred Beard operated the bookstore on WLBT's premises. Record, 435.The Examiner excluded the exhibit because, in his words:

   Mr. Beard is going to be here as a witness and, second, the matters that Mr. Moore [counsel for petitioners] seeks to put in evidence can be brought in if he so desires by competent testimony * * * but a generalization like this embodies too much hearsay and the document will not be received. Ibid. As counsel for WLBT noted, the examiner had previously declared all testimony about the bookstore irrelevant. Record, 251.However, counsel for petitioners nevertheless attempted to qualify Dr. Beittel to the examiner's satisfaction so that he might orally testify about the Freedom Bookstore and its association with the White Citizens' Council -- of which Fred Beard is a past director. Initial Decision, findings of fact, par. 34.But at the threshold of every attempt, the examiner ruled out such fundamental questioning as whether Dr. Beittel was knowledgeable about the Citizens' Council. Record, 447-458.

   n56 In excluding testimony of Rev. Robert L. T. Smith respecting the Freedom Bookstore, the examiner stated, "I don't see any issue that has anything to do with what any bookstore sells in Jackson, Miss." Record, 250.See also Record, 987.

   n57 Record, 251.

 

   PRESIDING EXAMINER.Didn't I rule out any evidence concerning the Freedom Bookstore from the beginning?

   Mr. MILLER.Yes, Mr. Examiner.

   PRESIDING EXAMINER.Then I don't want to hear anything about it.n58

 

   n58 Record, 1402.

 

Even Kafka would blanche at this vignette of bureaucratic justice. The citizen charges a Commission licensee with unfairness and offers to explain his allegation. First, the Commission rejects the citizens' offered proof, terming the charge itself irrelevant to the proceeding. Then the Commission concedes the relevance of the charge, but throws the citizen out again -- this time because the record of the proceeding contains no evidence to support it!

   In this way the Commission concludes that WLBT's compliance with the fairness doctrine was not so defective as to warrant denial of its renewal application. "Our study of the record indicates," the majority concludes, "that only in one instance has WLBT been proven to have violated the requirements of the fairness doctrine." n59 This one instance was the station's carriage of repeated spot announcements by the Jackson White Citizens' Council between September 3 and September 30, 1962 -- the period when the State of Mississippi was near rebellion over the pending admission of James Meredith to the University of Mississippi, "Ole Miss." These announcements blared to Jackson's citizenry that Communists were behind the civil rights movement and the effort to integrate the State's public facilities.n60 One misstep is not enough, the Commission says: "an isolated failure, occasioned by an honest mistake or a good faith error in judgment * * * should not result in action adverse to a station's license." n61

 

   n59 Majority Opinion at par. 16.

   n60 Petitioners' exhibit No. 50 (rejected, Record, 1615-1616).

   n61 Majority Opinion at par. 16.

 

   To term this unanswered saturation campaign or anti-civil rights material an "honest mistake or a good faith error in judgment" is remarkable enough. But altogether incredible is the assertion that the citizens' council spot campaign is the only fairness violation in the record. In the first place, the Commission itself has in previous actions and phases of this proceeding held that several incidents on which evidence was taken were serious violations of the licensee's obligation to air all sides of controversial issues. Indeed, the Commission in its original decision in this case, which was reversed by the court of appeals on the question of standing, accepted and acted on the petitioners' fairness accusations against WLBT. In that decision the Commission majority noted at least five separate instances of violation of the fairness doctrine by the station:

   In paragraph 9, the Commission noted four items, first and most egregious of which was the 1962 series of editorials opposing admission of James Meredith at Ole Miss.

   The second was a 1962-63 series of "Comment" programs, "which, from an examination of the scripts submitted by the licensee, [*454] discussed the issue of racial integration on various occasions."

   The third was the citizens' council spot campaign which the majority now cites as the sole violation on the licensee's record.

   The fourth was the personal attack leveled at Tougaloo College on an interview show, in which the college "closely identified with the civil rights movement in Mississippi, was * * * accused of being Communist infiltrated."

   Finally, in paragraph 6 of its opinion, the Commission noted that in its 1959 letter to WLBT, it "held as to the 1957 incident [the Little Rock forum program], that 'The fact that the proponents of one particular position on such an issue are elected officials does not in any way alter the nature of the program or remove the applicability of our fair presentation policy.' However, the Commission, after noting the licensee's representations, pointed out that isolated failures to comply with the fairness doctrine do not result in denial of renewal, and accordingly renewed the licenses." n62

 

   n62 38 FCC 1143, 1146.

 

As other paragraphs of the 1965 opinion make unequivocally clear, the Commission considered each of these incidents as serious fairness violations. It termed the licensee's lame efforts to excuse its failures to provide integrationists responses as "not fully satisfactory." n63 It renewed the license, as the court of appeals noted in its subsequent decision reversing the Commission, only because of the claimed importance of providing continued broadcast service to Jackson.n64 And this license was granted only on the basis of WLBT's promises to adhere to fairness requirements, and, at that, was limited to a probationary 1-year term.n65 Moreover, the real problem with WLBT's programs was not individual instances of refusals to respond to requests to appear, or individual spot campaigns during moments of pronounced racial crisis in Mississippi. The problem was that the station carried a remarkable surfeit of rightwing and segregationist material as a general practice. The church's exhibit 49, which was rejected by the examiner, n66 plainly indicates this fact. The exhibit, which notes all the station's controversial issue programming during a 3-month segment in 1962 and 1963, reveals routine carriage of shows like "Life-Line" and "The Dan Smoot Report," "Freedom University of the Air," John Birch Society programs and "Freedom Seminar." spot announcements for the Freedom Bookstore and the White Citizens' Council, as well as speeches by segregationist officials of the State.n67

 

   n63 Ibid.

   n64 359 F. 2d 994, 1007-1009.

   n65 38 FCC at 1154.

   n66 Record, 1613.

   n67 Petitioners' exhibit No. 49 (rejected, Record, 1613), passim.

 

   Finally, we cannot stress strongly enough, as the majority itself noted in 1965, n68 that the fairness doctrine does not involve personal rights, and does not function primarily through the mechanism of requests or protests by viewers. The fairness doctrine imposes on the broadcast licensee an affirmative obligation to insure that all sides of controversial issues are fairly presented.The licensee cannot discharge his obligation, as WLBT claims to have done, simply by flashing an "Equal Time" sign on the screen after the broadcast of its "Comment" discussion show.n69 He must make sure that his overall programming pattern fairly reflects all relevant viewpoints, whether or not individuals demand an appearance.

 

   n68 38 FCC 1143, 1146-1147.

   n69 Record, 1050-1051, ibid. WLBT appears to have varied its practices in this regard. On occasion, a slide would appear on the television screen after the conclusion of a "Comment" program or station editorial announcing that "equal time" would be given to responsible spokesmen. On other occasions, a voice would announce that fact.

 

    [*455]The Commission terms the spate of citizens' council spots during the Meredith crisis of 1962 as WLBT's only fairness offense during the period under review. n70 This particular offense was only one part of the station's bitter campaign against enforcement of the Fifth Circuit Court of Appeals' order to Ole Miss to admit Mr. Meredith. And, most important, the Meredith campaign was itself only the tip of the iceberg. The rest of the iceberg is to be found in testimony and documents accepted into the record of this case by the examiner -- as well as exhibits which he excluded in a misguided effort to minimize evidence most damaging to the station's case.n71 Finally, it is to be found in prior official actions of the FCC itself.

 

   n70 See text at note 59, supra.

   n71 See, e.g., notes 55, 60, 67, supra. Also Record, 200-204 and 966-967.

 

At this point, it seems to us appropriate to add some comments on the testimony of Mr. Dick Sanders, the former WLBT news director upon whose work both the examiner and counsel for the applicant placed great reliance in attempting to portray WLBT's performance during the renewal period as consistent with its fairness obligations. Initial Decision, par. 31; Record, 1727.The majority, it should be noted, chose not to follow the lead of the examiner and WLBT counsel in this respect. They do not expressly rely on the performance of Sanders on WLBT new programs during the renewal period or on his testimony. Nevertheless, it must be assumed that the examiner's findings with respect to the importance of Sanders underlie the majority's general assertions endorsing the examiner's findings about WLBT's fairness. Therefore, it should be pointed out, first, that witnesses praising Mr. Sanders did not intend their praise for him to apply to the station's treatment of news and political questions generally. Hazel Brannon Smith, a distinguished witness for the station, testified, "To me, he was the one sane voice on the air because it happened that WLBT was all I listened to * * *.I regarded Dick Sanders as the saving grace of WLBT, I mean if it could save it because there was so much wild stuff being said like in editorials and things like that * * *." Record, 1248.Second, WLBT 's reliance on Sanders as a "liberal" or "integrationist" offset to segregationist newsmen, commentators on panel shows, and editorials appears to have been unjustified in fact -- even if it were justified as a matter of law, which it is not. Mr. Fred Beard said of Sanders: "He was very liberal. He was an integrationist, he believed in integration and he was on the liberal side of every question that came about * * *." Record, 885. Mr. Sanders, however, does not appear to have regarded himself in the same light. To counsel's questions as to whether or not be considered himself "an integrationist," Mr. Sanders replied, "No." Record, 1079.Third, Sanders indicated that his position at the station was precarious: "There were tremendous pressures * * * the pressure of your friends, at times colleagues at the station differing with your news judgment * * *.This was not just routine coverage. In fact I doubt if there is anything like it." Record, 1096.Mr. Sanders discounted his influence on WLBT's general programming policies, saying "I had nothing to do with programming as such." Record, 1091.Finally, although we strongly disapprove of the majority's consideration of, and reliance on, evidence of WLBT's performance postdating the filing of its renewal application and its creation of a criterion for renewal decisions which emphasizes "probable future performance," we think it not amiss to point out that Mr. Sanders' presence on the station's staff during the renewal period is no evidence of its "probable future performance," in that he has since left the station's employ.

   WLBT pursued a systematic policy of active rebellion against the requirement of the Communications Act that it present contrasting views on controversial issues of public importance. Time and again over nearly a decade, WLBT was warned by complaints from local representatives of the Negro community n72 and by Commission correspondence, reprimands, suggestions, and other official actions, n73 that its zeal for suppressing the views of its political opponents was sharply at odds with the law. It is unlikely that a more flagrant, deliberate, and serious offender against the fairness doctrine will ever appear before us.

 

   n72 See the summary of the background of the proceeding in the Commission's original 1-year renewal decision, 38 FCC at 1144-1146.

   n73 Ibid.See also exhibits 100-110.

 

B. WLBT and service to the black community: How this station excluded 47 percent of the population of its coverage area from access to its broadcasting facilities

 

   The second major charge against WLBT was its failure to serve the Negro community in its coverage area.No policy of the Communications Act is more fundamental than the Commission's requirement that broadcast stations serve the particular needs and interests of the communities to which they are licensed. The FCC has refined and reaffirmed this command over and over again through the years, most recently in its "1960 Report and Statement of Policy" n74 which vigorously reasserted and elaborated the obligation of licensees:

 

   n74 1960 Report and Statement of Policy re Commission en banc Programming Inquiry, 20 P. & F. Radio Reg. 1901 (1960).

 

* * * to take the necessary steps to inform themselves of the real needs and interests of the areas they serve, and to provide programming which in fact constitutes a diligent effort, in good faith, to provide for those needs and interests.n75

 

   n75 20 P. & F. Radio Reg. 1901, 1913.

 

We have already seen how WLBT ignored the needs and interests of Negroes as far as controversial political issues were concerned. Not unexpectedly, its service to, and presentation of, Negroes on its other programming also reflected the assumption that its service was to be directed only to those people in its coverage area who happened to be white. This assumption is rather difficult to square with the requirements of the "1960 Policy Statement" in view of the fact that 47 percent of the people living within the station's coverage area are black. n76

 

   n76 Stipulation No. 2.Within the grade B WLBT broadcasting area, there is a total population of 859,881, of whom 407,790 -- or 47.4 percent - are Negroes.

 

   The majority does not dispute the petitioners' description of WLBT's presentation of programs aimed at the Jackson Negro community. It concedes that "Negro participation per se [whatever "per se" means in this context] in WLBT's locally originated programming was limited." n77 It was, in fact, limited to almost zero." The record[*456]indicates," the majority recites, "that during [the 1961-64 renewal period] there were no Negro appearances on the programs 'Teen Tempos,' Romper Room," and 'Youth Speaks,' and that religious programming of special interest to the Negro community was limited to one program, 'Voice of Good Will.'" n78 (The latter was a 15-minute religious program broadcast at 6:45 a.m.) n79

   n77 Majority Opinion at par. 18.[Emphasis added.]

   n78 Ibid.

   n79 Rev. Nathan Wheeler, a Negro, was the individual appearing on "Voice of Good Will." Application to renew license of Lamar Life Broadcasting Co., attachment (unnumbered), p. 141. Rev. Wheeler was considered by petitioners to be unrepresentative of the Negro community. Rev. Smith testified, "The Negro ministers they [WLBT] put on there were a disgrace to the ministry." Record, 335.

   The majority agrees with petitioners on the facts regarding Negro participation in WLBT programming during the renewal period. Nevertheless, it rejects their contention that WLBT failed to provide adequate service to Jackson Negroes and opportunity for their use of its facilities. Lack of Negro participation in programming, the majority explains, is not by itself "determinative." "Other factors must enter into our consideration of the matter. " n80 Precisely what these other factors might be, however, is not specified in the majority's opinion.

 

   n80 Majority Opinion at par. 19.

 

   What the majority does do is the following. First, it discounts two aspects of the intervenors' case against WLBT on this issue. Second, it points to alleged improvements in WLBT's policies since its application was filed.

   In attacking the petitioners' case, the majority argues that the monitoring study prepared by the church and offered in evidence is of no value. But the question of the validity of the monitoring study is not of overwhelming significance to the disposition of the issue of Negro participation. As the majority admits, the evidence of lack of Negro participation from other sources was too overwhelming.n81 Nevertheless, the conduct and character of monitoring studies will be of the first importance to future attempts by citizens to implement their right to participate in Commission proceedings, and to enforce broadcasters' obligations to serve their needs. Accordingly, it is necessary for us to make clear the extent to which the majority's effort to discredit this study is a sham and a dangerous precedent.

 

   n81 Ibid.

 

   The majority says this study is not valuable because, first of all, the church used different program "categories" from those used by the Commission in its application forms. In view of the utterly inconsequential nature of the differences between the categories, this line of attack is ridiculous.n82 Moreover, the Commission has in the past accepted studies with program categories different in respects much more significant than is the case here. n83

 

   n82 Program types employed in the monitoring study were news and news commentary, entertainment, religion, public affairs, informational, educational, and children's shows. The Commission's renewal application form lists these types: Entertainment, religious, agricultural, educational, news, discussion, talks. Application for renewal of broadcast station license, FCC form 303, October 1963, sec. IV.The Commission has since revised its forms, and the categories now are agricultural, entertainment, news, public affairs, religious, instructional, sports, and other. Application for renewal of broadcast station license, FCC form 303, September 1967, sec. IV-B.

   n83 See Capital Broadcasting Co., 38 FCC 1135 (1965), in which the Commission held that a similar study would be considered by the Commission, since the station had not demonstrated that the week monitored was unrepresentative or that its program classifications were insufficient.

 

   Second, the majority criticizes the study because it only embraces a week's programming and is not, therefore, necessarily typical of the station's programming. Would the majority require public groups such as the church to conduct a year of monitoring? Or perhaps even a full scale monitoring of the entire 3-year renewal period would be required. The majority does not say. Obviously, the expense and difficulty of conducting extensive monitoring would be altogether prohibitive and would mean that no such efforts would be undertaken. Perhaps this is what the majority desires, though we hope not. Moreover, such extended monitoring is totally unnecessary. The fact is that there is no reason to believe that the week of programming selected by the church for this study is atypical in any material respect. And, if it had been atypical, there was ample opportunity for WLBT to meet its burden of showing how and why.

    [*457] The church's monitoring study is every bit as fair (and far more thorough) a prima facie test of a station's programming as the "composite week" of programming logs used by the Commission to evaluate the performance of WLBT and all other stations when their licenses are up for renewal.n84 Only 1 week is involved in either case.And logs involve no monitoring whatsoever by outsiders, and generally no report of the content of programs.Finally, as intervenors demonstrated in their brief to the Commission, Negro participation during the monitored week was actually greater than was the general pattern over the 1961-64 period as a whole.n85

 

   n84 Lamar exhibit Nos. 50 and 78.

   n85 Brief of the Office of Communication of the United Church of Christ, et al., p. 12, note 3.

 

   After attacking the monitoring study, the majority then says that the church failed to prove its contention that WLBT habitually flashed a phony "Sorry, Cable Trouble" sign on the screen whenever unwanted, prointegration items were shown on network television programs. In the first place, this was not alleged by petitioners in their original pleading. It was, in part, the basis for the misrepresentation issue which this Commission put into the case as the result of its investigation into the operation of the station.n86 On this issue the burden of proof -- or, more properly, the burden of going forward with the evidence -- was put upon the Broadcast Bureau. The majority asserts that intervenors' allegation -- that a 1955 appearance by then-NAACP General Counsel (and now Supreme Court justice) Thurgood Marshall on Arlene Francis' "Home" show was cut by WLBT and a "Sorry, Cable Trouble" sign substituted -- was "unfounded. " n87 The majority's assertion is not true. The allegation was not disproven. It would not even be accurate to say that it was denied.

 

   n86 In its May 1965 decision, the Commission majority recalled the 1955 "cable trouble" complaint made to the FCC by the NAACP. The Commission noted, "This background is thus pertinent to the present application for license renewal." 38 FCC 1143, 1146 (1965).

   n87 Majority Opinion at par. 20.

 

   A newspaper reported that Fred Beard, the White Citizens' Council member who was station manager of WLBT from 1953 to 1965, had publicly bragged of using the cable trouble poly to keep the distinguished Negro lawyer off the Jackson station.n88 Mr. Beard's only response was that the paper "misquoted" him. n89 He did not say the newspaper report was fundamentally wrong. He did not specify any way in which the report misquoted him. Counsel for the church did not press the matter, unfortunately, so there is no way of knowing precisely what was erroneous about the report -- assuming that Beard was telling the truth when he said he was misquoted.(Given his well-documented penchant for making pious misrepresentations to the Commission, a fact which will be dealt with later in this opinion, there is ample reason to treat with at least a grain of salt WLBT Manager Beard's guarded claim that he was "misquoted" in this case.) But it certainly cannot be said that the allegation was disproved. 

 

   n88 Record, 812-815.

   n89 Record, 815.

 

   In fact, even the version offered by Beard is damaging enough in itself. For Beard admits that he did cut that portion of the "Home" show which carried Miss Francis' interview with Mr. Marshall (and not, as the Examiner claimed in his initial decision, the entire show).n89 Beard claims that he substituted a rerun movie, rather than a "Sorry, Cable Trouble" notice.n90 No one, however, denies that Beard was deliberately preventing Negroes from appearing on his station. And he thus admits he took this step in order to prevent the people of Jackson from seeing a Negro -- this man who had risen to the position of distinction and respect even then held by Mr. Thurgood Marshall.n91 [*458] No one on the Commission, or who testified during the hearing, has even attempted to show that this extraordinary incident was not part of a systematic design to prevent the appearance of Negroes on channel 3.

 

   n89 Record, 815.

   n90 Record, 810-811.

   n91 Mr. Beard testified that he purposefully deleted the interview with Thurgood Marshall, "Because I didn't want to have to fight Bill Simmons * * * executive secretary of the Citizen's Council." Record, 809.

 

   Even the majority does not consider its attacks on the monitoring study and its downplaying of the "cable trouble" episode adequate to offset the irrefutable evidence that Negroes almost never appeared on WLBT, and that other modes of disservice to Negroes occurred, during the renewal period.The majority relies, rather, upon the station's improvement after it was called to account for its derelictions.n92

 

   n92 Majority Opinion at par. 21.

   Since the application was filed and challenged by the church, the majority seems to suggest that there have been some changes made on channel 3 in Jackson. Whereas there was once only one Negro religious program there are now three. Whereas Negroes formerly participated in none of the station's regularly scheduled local origination shows, they now participate -- at least the record shows one such occasion -- in one of those programs, "Teen Tempo." ("Romper Room " has been discontinued, thus avoiding the possibility of integrating small Negro children into this show.) Courtesy titles are now in vogue when WLBT announcers refer to Negroes, and WLBT announcers no longer indulge their preference for the terms "nigger" and "negra." n93

 

   n93 Ibid.

 

   One may or may not be impressed by this new spirit of brotherhood in Jackson. But it has only occurred since WLBT's Washington counsel advised its principal owners, the Murchison brothers of Texas, that their license to operate this several million-dollar television station was in serious jeopardy.n94 It is indefensible for the Commission to consider such evidence to decisive significance. The Commission recognizes that a finding that WLBT had failed to program in the public interest during the renewal period could not be offset by later improvements or promises of reform. It recognizes that the pre-1964 lily-white programming policies are not "spotless or a model of perfection to be emulated by other stations." It finds them, however, not so bad as to contravene the public interest. The majority therefore asserts -- and the assertion is without even token support in its opinion -- that "since the question is not one of proven past conduct found contrary to the public interest which is sought to be weighed against present meritorious conduct or representations that a station will reform in the future, our decisions which hold that such evidence should not be considered are inapposite to the present situation.n95

 

   n94 The extent of the Murchisons' ownership is reflected in petitioners' exhibit No. 52.

   n95 Majority Opinion at par. 21.

 

   That sentence is quite a mouthful. Evidently the majority's hope is that the reader will become so preoccupied with the sheer physical chore of chewing over the words that he will not choke on their illogic. Even if one accepts the station's witnesses' version of the facts it is simply undeniable that bigotry was a watchword at WLBT between 1961 and 1964, and, it is difficult to doubt, prior to 1961.Whether it is now still the case is, to say the least, unclear from the record. That WLBT's recent show of contrition should not be allowed to counter WLBT's prior open and unmitigated scorn and indifference to the half of its viewers who happen to be black seems to us beyond argument.

 

    [*459]

 

C.WLBT's misrepresentations: How the Commission ignores its own charges that WLBT has substantially misrepresented to the Commission and the public its programming policies and practices, and has deliberately distorted news events

 

   It is now well settled that material misrepresentations made to the Commission by an applicant for renewal are in themselves grounds for denial, irrespective of the programming fare offered or promised by the applicant. But in this case the majority chooses merely to shrug off the issues of misrepresentation -- which the Commission itself raised n96 -- with a two-sentence conclusory finding that "there is no evidence in the record which would indicate that WLBT has misrepresented either to the public or to us its programming on the issue of racial discrimination or that it has acted in bad faith respecting the presentation of such programming." n97

 

   n96 See note 86, supra, and accompanying text.

   n97 Majority Opinion at par. 23.

 

   Such short shrift, when measured against the record we have read, makes us wonder if the majority is discussing the same case we are. The majority's summary treatment of the misrepresentation issue flatly states that there is "no evidence" indicating WLBT has purposefully lied.n98 But as the majority must be aware, past Commission action, and even the stipulations agreed upon by the parties prior to the present hearing, demonstrate conclusively that WLBT's veracity has been under constant scrutiny by the Commission staff since 1955, only 2 years after WLBT took to the air.

 

   n98 Ibid.

 

   In 1955, in response to a complaint filed with the Commission by the NAACP, WLBT asserted that it did not, as a matter of policy, permit the issue of racial integration to be aired at all. This representation was repeated in 1958 and 1963.But in September 1957, WLBT presented a locally produced program on the Little Rock crisis in which three Mississippi officials, Gov. James P. Coleman, Senator James Eastland, and Congressman John Bell Williams, discussed the maintenance of segregation and States rights. Mr. Medgar Evers requested, and was denied, an opportunity to appear on the station to reply. Responding to a complaint filed with the Commission by Mr. Evers, the station opined that the program did not come within the station policy because it was a "report" by elected officials to the people of Mississippi.n100

 

   n100 Ibid.

 

   In January 1962, Rev. Robert L. T. Smith filed a complaint with the Commission alleging that WLBT had refused to sell him air time to promote his congressional campaign.Fred L. Beard, station manager, responded to a staff inquiry on February 1, 1962, by asserting, "WLBT has not refused to sell the candidate time." n101 Two months later, on April 20, 1962, WLBT reversed field and admitted, "Our decision not to sell time to Reverend Smith was primarily based on the fact that there is no interest in this race being manifested in the district * * *." n102

 

   n101 Stipulation 1, No. 4.

   n102 Stipulation 1, No. 11.

 

   On November 21, 1962, Fred L. Beard stated in a memorandum summarizing information given to two staff members of the Commission: "* * * we temporarily discontinued broadcasting editorials on last September 21, 1962 * * *." n103 But station logs [*460] immediately subsequent to September 21, 1962, indicate that editorials were, in fact, broadcast.n104 Oral testimony admitted at the hearing indicates only that Beard believes the logs were "mistaken." n105

 

   n103 Stipulation 1, No. 13.

   n104 Petitioners' exhibit No. 35.

   n105 Record, 845-46.

 

   On July 25, 1963, the Commission addressed a letter to WLBT stating that from a recent investigation "it appears WLBT broadcast editorials on the controversial issue of racial integration," spot announcements for the White Citizens' Council contending that Communists were behind the integration movement in Mississippi, and several "Comment" programs taking only one side of the integration issue. n106 However, on October 29, 1963, WLBT erroneously wrote the FCC that "our policy not to present local programs dealing with segregation has continued in effect to the present time." n107

 

   n106 Stipulation 1, No. 16.

   n107 Stipulation 1, No. 17, p. 4.

 

   In WLBT's 1964 application for renewal, the station avowed that its policy regarding the airing of controversial views was to make "every reasonable effort to ascertain that the opposing group is notified and understands that if they do disagree, equal time will be granted * * *." n108 But at such a late date as the examiner's hearing, counsel for WLBT demurred at the thought that any station should be held to such a promise.n109

 

   n108 Application to renew license of Lamar Broadcasting Co., attachment (unnumbered), "Policy Statement," p. 1.

   n109 "* * * [Obviously] * * * it would be an impossibility for a station to advise and invite members of the public individually.They don't even know which one specifically may agree or disagree with them." Record, 375.

 

   A further instance of WLBT's willingness to mislead the Commission even with regard to the ownership of the station -- was considered in a recent case decided only 3 years ago.n110 In that action, the stockholders of Lamar Life Broadcasting Co. sought to transfer their stock back to Lamar Life Insurance Co., from whom they had received their majority interest in 1952 in exchange for an option to buy for $10,000 -- the value of the shares in 1952.As Commissioner Cox pointed out in dissent at the time, the 1965 approval of transfer was merely a belated effort to make official what had long been the known facts of ownership; namely, that Lamar Life Insurance Co. exercised de facto control over the programming policies of WLBT.n111

 

   n110 In re Application of P. K. Lutken et al. for Transfer of Control to the Lamar Life Insurance Company, 1 FCC 2d 1484 (1965).

   n111 Id. at 1491.

 

These are multifarious examples of deceptive practices by WLBT and its clear disposition to say whatever seems to meet the problem of the moment. The majority must be cognizant of them. Thus, the Commission's bland statement that there is "no evidence" in the record supporting the petitioners' charges of misrepresentation is not only unsupportable; it suggests a predisposition to renew the WLBT license regardless of the seriousness of its questionable past history.

   The majority also asserts that the record contains "no evidence" of misrepresentation to the public by WLBI. n112 This is also not true. For example, the record contains substantial and unrebutted testimony respecting specific instances of bad faith reportage by WLBT in its news coverage of highly controversial issues. No matter should be of greater concern to this Commission than the existence, or threat, of untoward influences in the reportage of information and opinion to the American citizenry by the mass media. In this case, Rev. R. Edwin King of the United Church of Christ at Tougaloo recited not one but [*461] three specific instances of such questionable practices. All occurred in May and June 1963.

 

   n112 Majority Opinion at par. 23. 

 

the first instance was WLBT's false characterization of the way in which one Mr. Salter, a participant in a city hall demonstration following Medgar Evers' death, was beaten. Reverend King, an eyewitness to the demonstration, testified:

 

Mr. Salter had been pulled from the porch and was clubbed down by the police * * *.Then he was lifted up from the ground by several policemen and kind of dragged to a police car. His clothing was torn, he was bleeding profusely. The car disappeared with him * * *. [The] television station, channel 3, showed pictures of police rushing from the street where the demonstrators had been put in the trucks, rushing from the trucks towards the yard and the porch where we were standing and then the newsreel stopped, the news forecaster was suddenly seen. He was seated * * * and the newscaster said, with only the picture of himself at this point, "Mr. Salter stumbled and fell from the porch, injuring himself." Then the newsreel came back on and we saw none of the pictures of the police.n113

 

   n113 Record, 711, 714-715

 

The second instance described by Reverend King related to WLBT's announcement over a news program that Mrs. King had been arrested for public cursing and disorderly conduct, when, in fact, Mrs. King had not been arrested and was not even at the scene of the demonstration.n114 Finally, Reverend King testified as to WLBT's false report that he had been arrested for public cursing, leading the city hall demonstration, and "Violence" in the Jackson City streets. In fact, Reverend King was not arrested on the charges or at the time indicated by the television news department.n115

 

   n114 Record, 713-714.

   n115 Record, 718-720.

 

   It used to be that this Commission was sometimes charged with loose enforcement of its own rules, but was said to have a capacity for stern action when misrepresentation to itself or the public was concerned. "It makes no difference what you do, just make sure you tell the Commission the truth about it if you're caught," the saying went. Now it appears even this modest standard has been eroded.

 

IV.A Final Word on the Relevance, Materiality, and Weight To Be Accorded WLBT's Efforts To Reform Its Discriminatory Programming Practices Since Its 1964 Renewal Application

 

   We think the record demonstrates that, from the first stirrings of public concern about segregation in Mississippi, WLBT pursued a systematic policy of promoting segregationist views and suppressing integrationist expression, that the station made no effort to serve the large Negro population in its coverage area, that it assiduously sought to minimize the appearance of Negroes on the air, that it refused to extend to them minimal courtesies, and that it consistently lied to the Commission about the maintenance of these highly improper policies. The majority did not seriously contest these conclusions in 1965, when it granted WLBT a probationary 1-year renewal and sternly warned it to reform itself.Now the majority purports to change its mind. The reason for this seems clear. The court of appeals has declared that if the petitioners' allegations are in fact true, as the Commission assumed in 1965 and we believe the record now confirms, the majority's 1-year renewal would not be an adequate sanction." As a matter of law," the Court held, "* * * a history of programming misconduct of the kind [*462] alleged would preclude * * * the required finding that renewal of the license would serve the public interest.n116 The majority apparently does not want to refuse renewal of this broadcast license even for the offenses reflected in WLBT's history. Hence, it suddenly discovers that the history never occurred.

 

   n116 359 F. 2d 994, 1007. [Emphasis added.

 

   Since the law of this case is necessarily what the court has said it is, the majority attempts to reinterpret the facts to avoid the court's strictures. In reality, it seems to be asking to the court to soften the law. In effect, the majority seeks to save WLBT's license on the ground that it has made up for past derelictions by recent improvements.

   We find the evidence of improvement offered by WLBT's counsel much less than the top-to-bottom revamping which would be necessary to show that a licensee who had made the remarkable record of lawlessness developed in these proceedings has truly and permanently changed his ways. Some of the offerings, indeed, are of dubious value to the applicant's cause.

   For example, a committee including Negro leaders has been formed by the station to provide a bridge to the Negro community and a mechanism to assess its needs and interests.n117 Petitioners challenge the adequacy of members of this committee to represent the needs and interests of Jackson Negroes. But, of decisive significance, they point out that the Committee has not once, in its 3-year life, ever met!n118

 

   n117 Lamar exhibit 64, p. 3.

   n118 Record, 573.

 

   And the station's penchant for violating the fairness doctrine has been ameliorated, it would appear, not by exposing its viewers to Negro leaders and integrationist spokesmen, but by reducing the appearances by rightwing and segregationist spokesmen." Teen Tempo" has been integrated, at least on a token basis and on one occasion." Romper Room" and "Youth Speaks," however, are no longer broadcast.n119

 

   n119 As reflected in station logs for 1967, Lamar exhibit No. 50.

 

   But whether or not WLBT has reformed, and if so whether it will stay reformed, is, we think, quite beside the point. We believe that evidence of WLBT's performance after the filing of the application should not be relevant at all. Certainly it should not be decisive. For we do not see how the aims of the Communications Act can ever be meaningfully enforced if a station with a record as egregiously defiant of law as this one can ignore citizen complaints and Commission blandishments at will.Such stations can now go their way, secure in the knowledge that when the Commission is finally forced to crack down there will be ample time to show subsequent improvements and make pious promises.

   When this case was remanded to the Commission by the court of appeals, the court remarked that "When [a broadcaster] accepts [a radio or television] franchise, it is burdened by enforceable public obligations." n120 If a record such as WLBT compiled until 1964 does not result in prompt loss of its license those obligations will be enforceable only in theory. This Commission has neither the budget nor the staff to maintain watch over the 7,500 broadcast stations in this country. The best way, perhaps the only way, to insure that broadcasters respect the needs of their communities and promote diversity in the expression of points of view is to make it clear that valid public complaints, showing [*463] systematic violations of these obligations, will result in loss of the broadcast license without a second chance.

 

   n120 359 F. 2d 994, 1003.

 

   The Commission has held that the criterion of decision in this case is "probable future performance." n121 This rule flatly contradicts the instructions of the court of appeals to make the licensee "run on his record." n122 It is a wholly novel approach to the decision of license renewal challenges, proposed for the first time after this piece of litigation began. Perhaps in some cases evidence of post application performance should be admitted into the record, but it should never be given significant weight. And commonsense principles of law enforcement require that post application evidence should only be admissible in cases where the past violation was inadvertent or isolated. This is not such a case. We have never seen a case involving so sustained, open and serious an affront to basic Commission policies, as well as to the interests of the Jackson community and the Nation. Where, as in this case, misconduct has been deliberate and repeated, no evidence of post-application performance should be admissible in evidence.

 

   n121 3 FCC 2d 784, 787.

   n122 359 F. 2d 994, 1007.

 

V. United Church of Christ Versus the Federal Communications Commission: A Landmark on the Road to Where?

 

   In recent months and years the Federal Communications Commission has been the target of continuing and sharply critical comment from Congress, the courts, the executive branch, the press, the academic and research community, and even from its own members -- one of whom (neither of us) recently recommended the abolition of the agency.n123 While some of this criticism is unfair, this state of affairs is largely of the Commission's own making. We believe that this case will, with reason, give rise to renewed attacks upon the agency.

 

   n123 "Let's Abolish the FCC," address by Commissioner Robert T. Bartley, before the Illinois Broadcasters Association, Quincy,Ill., May 23, 1968.

 

   Were it not so serious, and an actual case affecting the rights of the parties and the public in the Jackson area, this culmination of the church's efforts in a license renewal proceeding could be considered a classic caricature of the FCC at its worst. But for the majority's opinion here, no one would be likely to imagine the Commission capable of reaching so unsound a result or showing so transparent a disregard of the practices reflected on this record, or that it would do so at this of all times in American history, or at the expense of these complainants.

   For this case has everything. A racist television station in Mississippi. An offended citizenry that actually takes the expensive and frustrating course of involving itself in the license renewal process. A church as a party. Negroes protesting the programming abuse received by that nearly 50 percent of the people in the station's viewing area who are black. A landmark, first-impression decision by the U.S. court of appeals awarding "standing" to such parties. The station's misrepresentation to the Commission over the years. The Commission's contortions to keep the public out entirely, then to place upon them an impossible burden of proof, then to reverse long-held precedents and ignore the clear suggestions of the court as to the standards to be applied. This disappointing saga has now ended with a finding by this Commission that the station has been serving "the public interest" and is entitled [*464] to a regular, 3-year license renewal. Note what the majority has succeeded in doing by this single action.

   The Commission has gritted its teeth and set its face against public participation in agency proceedings at a moment when "participatory democracy" rides the crest of a wave of mass enthusiasm which has already become a major national movement. Everyone, from States' Righters to New Leftists, from the upper echelons of the establishment to the storefronts of the ghetto, has embraced the ideal of extending democracy in all levels of government -- everyone, that is, except for this FCC majority.

   The Commission has been criticized for treating the absence of public complaints as evidence of service to "the public interest," minimizing the FCC's responsibility to make independent investigation. The Commission today shows its strong distaste for the presence of a complaint, even though (or perhaps because it was) pressed with dedication and persistence by those representing nearly 50 percent of the population in a community served by the licensee. The record reveals that the United Church of Christ and its allies apparently have been regarded within the Commission as a kind of unfamiliar pestilence, to be scourged through harassment, the piling up of procedural obstructions, and the denial of rights clearly granted them by a reviewing court in this very same case.

   Great public concern has been focused on the role of broadcasting in fostering communication between the races. The Kerner Commission devoted an entire chapter of its Report of the National Advisory Commission on Civil Disorders to the news media and their potential contribution to improved race relations.n124 The FCC Chairman Hyde has termed this "not just another story -- another 'issue of public importance' * * * [but] a crisis * * *." n125 We have recently witnessed the assassination of Dr. Martin Luther King and Senator Robert F. Kennedy, the outbreak of violence in our Nation's capital, and the Poor Peoples March on Washington. A new presidential commission has just been established to study, among other things, the possible relation between television programming and violence.n126 And yet the FCC majority picks this moment to find "the public interest" served by the renewal of a license for a station which has not only made no effort to include and serve Negroes, but which has for a decade maintained blatantly racist programming policies.

 

   n124 Report of the National Advisory Commission on Civil Disorders, ch. 15, "The News media and the Disorders," pp. 201-213 (1968).

   n125 Address by Hon. Rosel H. Hyde to National Association of Broadcasters, Chicago, Ill., Apr. 1, 1968.

   n126 Remarks of President Lyndon Johnson to the National Commission on the Cause and Prevention of Violence, on the occasion of signing the Executive order establishing the Commission, Weekly Compilation of Presidential Documents, vol. 4, No. 24, 935, 936 (June 17, 1968).

   Public concern is rising about the growing tendency of protest movements to take to the streets, and even the techniques of civil disobedience, to compensate for their inability to find expression for their views on the mass media. How does this Commission respond? It responds by leaving the doctrine of broadcast fairness lifeless on the shelf. It responds by blithely renewing the license of an owner who systematically used one of two television stations in the capital of Mississippi to suppress the expression of views favorable to integration.

    [*465] The obligation of local broadcast stations to provide local service has recently been reaffirmed and defended by members of the FCC as well as by representatives of the broadcasting industry who are concerned about the new technologies that might replace the present system of local broadcasting with nationwide wire or satellite-based systems.n127 And yet the FCC has today refused to discipline a licensee which pursued a policy of deliberate and positive disservice to one-half of its viewing public.

 

   n127 Address by Vincent T. Wasilewski, president of the National Association of Broadcasters, before the Florida Association of Broadcasters, Inc., St. Petersburg, Fla., June 10, 1968.

 

   What, one might ask, does the Commission majority expect representative public groups to do in their participation in license renewal proceedings? The court of appeals has said that "responsible and representative groups eligible to intervene * * *; such community organizations as civic associations, professional societies, unions, churches, and educational institutions or associations might well be helpful to the Commission." n128 The court is right. Well, here is a group that tried -- and failed -- in what one would think was a rather extreme case. The court says that "some mechanism must be developed so that the legitimate interests of listeners can be made a part of the record which the Commission evaluates." n129 What is that mechanism to be if this was not enough?

 

   n128 359 F. 2d 994, 1005.

   n129 Ibid.

 

   Much of the problem, we believe, derives from the FCC majority's mischaracterization of the nature of the broadcaster's responsibility and the public's rights in the license renewal process. As the court said, "After nearly five decades of operation the broadcasting industry does not seem to have grasped the simple fact that a broadcast license is a public trust subject to termination for breach of duty." n130 What is that duty? To serve "the needs, tastes, and interests" of the listeners and viewers of that station.n131 Responsible broadcasters not only tolerate, but actively seek out, the views of local citizens. It is good business as well as responsible licensee conduct. For the broadcaster is, in effect, an elected public official, using the property of his audience (the public's airwaves) to make private profit. He holds a 3-year trust -- not a property right -- to operate a local station.n132 The burden is upon him to demonstrate, at every 3-year license renewal, that he has been a faithful trustee. The burden is not upon the protesting public to prove that his "rights" should be denied. Frivolous or malicious complaints, or those inspired by economic competitors, must, of course, be weighed appropriately. But when "responsible and representative groups" have opinions, grievances and "legitimate interests" we think they should be received hospitably and given serious weight by this Commission.

 

   n130 Id., at 1003.

   n131 See notes 75-76 supra and accompanying text.

   n132 Communications Act of 1934, as amended, 47 U.S.C. 309(h).

 

   It should be noted that the citizen participants in this case were able to employ a resource which is unavailable to most members of the viewing public. The United Church of Christ was able to hire a lawyer. But it should be possible for a citizen to participate in a license renewal proceeding without a lawyer. Careful monitoring studies are desirable; they are an effective form of advocacy. But a citizen who complains of a given station, and provides the date and time of the program and a general description of the offending matter, should be able to rest upon that evidence, leaving the station with the burden of refuting the charge or explaining the programming. If the time should come [*466] when we believe the Commission's procedures are being abused, or its licensees are being harassed, there are remedies enough that can then be applied. We are talking about otherwise busily occupied American citizens -- like most of us -- who have no familiarity with procedural niceties, but who may try to make their voices heard on one of the most significant issues in communities across this country: Radio and television programming. And participating in FCC proceedings should be, for them, as easy as attending a PTA meeting, a zoning board hearing, or voting in a city council election. They should be welcomed by this Commission, not put off or held to unreasonable requirements.

   The Commission majority has often seemed loathe to express any views with regard to the programming performance of licensees. The ostensible rationale, to the extent one exists, is that programming matters are best worked out in the local community, between the broadcaster and his audience. We are sympathetic to this point of view. Given the choice, we would far prefer meaningful local participation in programming choices to decisions by seven FCC Commissioners in Washington. But we emphasize the word "meaningful." The public must really know of its rights -- not just be able to find out about them in the United States Code, the Code of Federal Regulations, and the legal notices (and equivalent radio and television announcements) in the local community. It must know how to exercise those rights: The difference between a casual letter to a station or the FCC, and a petition for intervention in a license renewal proceeding. It must know its options in programming -- not just be asked whether it likes a given station or not, or whether it has any new ideas. Participation in programming choices and FCC proceedings must be encouraged -- not frustrated at every turn. The court has observed that --

 

Public participation is especially important in a renewal proceeding, since the public will have been exposed for at least 3 years to the licensee's performance * * * [and] may be the only objectors.* * * [Consumers] are generally among the best vindicators of the public interest. In order to safeguard the public interest in broadcasting, therefore, we hold that some "audience participation" must be allowed in license renewal proceedings.n133

 

   n133 359 F. 2d 994, 1004-1005.

 

We agree. The majority professes to -- in those cases in which no representatives of the public appear, and their absence is read as public endorsement. But abdication of the responsibility of the Federal Communications Commission to the citizens of local communities is only justifiable if there is someone there to assume it. Abdication coupled with positive efforts to prevent public participation boarders on protection of broadcasters' interests at any cost. And, indeed, even the interests of the protected industry are little served by leaving the occasional irresponsible broadcaster free to flaunt the public interest and soil the reputation of his colleagues.

   We are saddened that our colleagues, as well as some members of the Commission's staff, seem so indifferent to the agency's responsibilities and to the needs of the times. But, more than that, we are disturbed at the majority's willingness to go to such great lengths to protect a licensee with a very bad record. It has ignored what we believe the court of appeals directed us to do. It has rejected or overlooked what we regard as valid evidence -- all to avoid reaching [*467] unwanted results. It has sanctioned obstruction and procedural harassment which can only discourage and defeat citizen intruders so bold as to venture to exercise rights guaranteed them by law. Indeed, it would appear that the only way in which members of the public can prevent renewal of an unworthy station's license is to steal the document from the wall of the station's studio in the dead of night, or hope that the courts will do more than merely review and remand cases to the FCC with instructions that may be ignored.

 


APPENDIX

RULINGS ON EXCEPTIONS TO THE INITIAL DECISION

Exceptions of Intervenors


 

 

Lexception No.

Ruling

 

1, 3, 12, 20, 29, 32, 35, 48, 54, 55, 67, 72, 79, 84, 99.

Denied.The examiner's findings are adequately 

supported by and adequately reflect the record.

 

 

 

2, 4, 6, 7, 41, 81, 85,86 89, 90, 91, 92, 93, 94, 95, 96.

Denied.The requested findings are not of decisional significance.

 

 

 

5, 24, 69

Denied.The requested findings are not material to the determination of this case in light of the Decision.

 

8, 13

Denied.The examiner's findings are material and a adequately reflect the record.

 

9, 10

Denied.See pars. 17-18 of the decision.

 

11a, 100

Denied.The exhibit in question attempted to cast upon the Commission the burden of determining whether the organizations in question were segregated or integrated and, absent further proof in that regard, the exhibit was ot probative.

 

11b, 19, 43, 47, 74b, 82, 83.

Denied.The requested findings are unsupported by the record.

 

11c

Denied.The requested finding is not of decisional significance.Furthermore, the requested finding that Dr. Beittel requested time is completely unsupported by the record.

 

11d

Granted.See par. 19 of the Decision.

 

11e

Granted to the extent of finding that no Negroes appeared on the program "Youth Speaks." Denied in all other respects since the record does not support the intervenors' requested finding.

 

14

Denied.See pars. 17-18 of the Decision.

 

15

Denied.The requested finding is not of decisional significance and is not supported by any citation to the record as required by sec. 1.277 of our rules.

 

16

Denied.The finding of the examiner is pertinent and adequately reflects the record.

 

17

Denied.The examiner's finding is correct as to Mr. McRaney's testimony.Further, the question of Negro employment is irrelevant to the hearing issues.

 

18

Denied.The finding of the examiner is pertinent and

material.

 

21

Granted.Finding 33 is amended to read that the

rotation schedule regarding religious programing,

which included Negro ministers, was instituted in

late 1965.

 

22

Denied.The finding of the examiner adequately re-

flects the record and the requested finding is not of

decisional significance in the light of our decision.

 

23, 88

Denied.The examiner's findings are relevant and ma-

terial.

 

25

Denied.Exceptions must run to facts and not intentions and because the exception is argumentative.

 

26

Granted to the extent of finding that WLBT broadcast from Sept. 3, 1962, to Sept. 30, 1962, a series

of spot announcements, purchased by the Jackson

Citizens Council, urging support for the Council

because, the ads claimed, the Communists were behind the racial agitation going on in Mississippi

and that WLBT received no request from any organization to express views opposed to the view expressed by those announcements.

 

27

Granted to the extent that the words "that the request was not granted on the advice of counsel, or

in his words:" are deleted and the following words

are added to the end of the finding: "The request

was not granted on advice of counsel." As modified,

the finding adequately reflects the record.

 

28

Denied.The proven words are per se innocuous.

Beard's admission that the other words "might"

have been used is not probative.

 

30

Granted.The fourth sentence of finding 39 is stricken.

 

31

Granted in substance.

 

33, 40, 42, 74d, 98

Denied.The examiner's findings are material and

relevant.

 

34

Denied.The requested finding is irrelevant to the examiner's finding regarding WLBT news coverage.

 

36

Denied.The examiner's findings are adequately supported by and adequately reflect the record.Further,

the requested finding is not supported by citation to

the record as required by sec. 1.277 of the rules.

 

37

Denied.The proposed finding does not adequately reflect the record.Nor is it supported by proper citation to the record as required by sec. 1.277 of the

rules.

 

38

Denied.The examiner's finding adequately reflects the

record regarding the "Comment" program.

 

39

Denied.See par. 13 of the Decision.

 

44

Denied.The examiner's finding is adequately supported by the record and is relevant and material.

Furthermore, the requested finding is not of decisional significance.

 

45

Denied.See par. 13 of the Decision.

 

46

Denied.The examiner's finding is material and relevant.Further, the requested finding is not supported

by citation to the record as required by sec. 1.277 of

our rules.

 

49

Denied.The requested finding is not of decisional significance.Further, the intervenors' citations concerning ruling are irrelevant.

 

50

Denied.See par. 13 of the Decision.

 

51

Denied.The requested finding is adequately reflected

in pars. 64 and 65 of the Initial Decision.

 

52

Denied.The requested finding is adequately reflected

in pars. 65 and 66 of the Initial Decision.

 

53

Denied.The examiner's finding adequately reflects the

record.Further, the requested finding is not supported by citation to the record as required by

sec. 1.277 of the rules.

 

56

Denied.The examiner's finding adequately reflects the

record.The inference intervenors' proposed finding

seeks to draw is not supported by the record.

 

57, 58

Denied.The inference intervenors seek to draw from

these exceptions is not supported by the record.

The record is unclear as to which, if any, or all,

of the NBC network programs listed in stipulation No. 1, item 24, were carried by WLBT since

the program lists contained in Lamar exhibit 45

and stipulation No. 1, item 17, attachment d, are

admittedly not complete lists (Tr. 1334) of all

WLBT programming.

 

59

Denied.The examiner's finding adequately reflects

the record.The inference intervenors seek to draw

is baseless.

 

60

Denied.The examiner's finding is adequately supported

by the record.See par. 13 of the Decision.

 

61

Granted to the extent of finding that WLBT in response to the complaint answered that it "did not

consider the matters presented as being controversial, but a report from our duly elected officials to

the people of Mississippi."

 

62

Granted to the extent of amending finding 86 to read

"By further letter of July 1, 1959, to the NAACP,

the Commission stated that if the program expressed

partisan views, albeit by elected officials, the station

was obligated to present the opposing view."

 

63

Denied.The Commission is unable to identify the reasons set forth in the brief without more exact

reference.

 

64, 65, 66, 74c, 97

Denied.The exceptions are not supported

by citation to the record as required by sec. 1.277 of our rules.

 

68, 73

Denied.The examiner's findings are adequately supported by the record.Further, the exceptions are not

supported by proper citation to the record as required by sec. 1.277 of the rules.

 

70

Denied.The post-1964 editorials are revelant to the

Decision.See par. 21 of the Decision.

 

71

Denied.The requested finding is not supported by Mr.

McRaney's testimony.

 

74a

Granted to the extent that the request was made that

the advisory group meet.Denied in all other respects

since it is not supported by citation to the record as

required by sec. 1.277 of the rules.

 

75

Granted to the extent to find that Mr. Medgar Evers

requested that Dr. Ralph Bunche, Jackie Robinson,

and Mr. Bill Russell be interviewed over WLBT

and that such request was not honored by WLBT.

Denied in all other respects since the examiner's

finding adequately reflects and is supported by the

record while the requested finding is not supported

by the record.

 

76

Granted.See ruling on exception 75, supra.

 

77, 131

Denied.The examiner's finding regarding lack of evidence conforms to the record.

 

78

Granted to the extent of finding that in 1964, and

earlier years, on some occasions courtesy titles for

Negro men and women were not used but that the

extent of the practice is impossible to determine.

See par. 21 of the Decision.

 

80

Granted only to the extent of finding that "Civic

Calendar" was started in October of 1964.Denied

in all other respects since Dr. Newsome's status

vis-a-vis the NAACP is irrelevant to this Decision.

 

87

Denied.The requested finding is not of decisional

significance.Further, the Examiner's finding is relevant and material.

 

101, 134

Denied.While the intervenors may not agree with

the prognosis of the examiner, it is not a proper

subject of exception unless the findings compel a

different prognosis or no reasonable person could

have arrived at such a prognosis.

 

102, 103, 104, 108,

109, 110, 111, 112, 113, 114, 116, 117, 121, 123, 124, 125, 126, 127, 128,30,132,133, 149.

Denied.The examiner's conclusions

are adequately supported by the evidence of record and the findings of fact based on such evidence.

 

105

Denied.The conclusion of the examiner is adequately

supported by the record.

 

106

Denied.This exception is repetitious of matters properly findings of fact which are treated elsewhere.

 

107

Denied.The requested conclusion is not determinative

of the Decision in light of our specific finding on the

matters therein.

 

115

Denied.The requested conclusion is insignificant.

 

118

Denied.The examiner's conclusion is relevant and

material.

 

119

Granted to the extent indicated in our ruling on intervenors' exception 80, supra.

 

120

Granted to the extent indicated in par. 21 of the Decision.

 

122

Denied.Finding 97 adequately reflects the record.

 

129

Denied.The examiner's conclusions are adequately

supported by the evidence of record and the findings

of fact, based on such evidence.Further, the examiner's conclusion does not equate sec. 315 of the

Communications Act with hearing issue (a).

 

135, 141, 142, 144,

145, 146.

Denied.The examiner's rulings are correct and

proper.

 

 

 

136, 137

Denied.All parties did not consent to receipt of that

 

part of the stipulation.Tr. 757, 767.

 

138

Denied.The examiner's ruling was harmless error.

 

139

Denied.The examiner's rulings were consistent with

the Review Board's and Commission's orders regarding the inspection of WLBT records.

 

140

Denied.The examiner's statement to which objection

is taken did not preclude the introduction of the evidence in question.

 

143

Denied.See par. 15 of the Decision.

 

147

Denied.The examiner's ruling was correct since

Lamar denied receipt of the letter.

 

148

Denied.The examiner's ruling was correct.The exhibit may not be considered an admission in light

of Lamar's general denial in response thereto.

Exceptions of Lamar

 

1-25

Denied.The requested findings are not of decisional

significance in light of the Decision.

 

 


COMMISSIONERS COX AND JOHNSON

 

APPENDIX

 

A.THE SIGNIFICANCE OF THE COMMISSION'S 1-YEAR RENEWAL OF WLBT'S LICENSE IN 1965

 

   In our dissenting opinion, we emphasized the anomaly of the Commission's exoneration of WLBT's 1961-64 record, in view of its 1965 ruling that WLBT's performance during the period in question was sufficiently disturbing to warrant a probationary 1-year license renewal.The majority's further statement, in parts II and IX, disputes this.n1 In part II, the statement suggests that the 1965 decision did not represent a finding that WLBT had engaged in misdeeds, but only noted that the petitioners had alleged serious misdeeds occurred.In part IX, the statement goes on to make a related -- indeed, not clearly distinguishable -- assertion, that there is no inconsistency between the two Commission rulings in this case, presumably because the 1965 1-year renewal was not a sanction for past misdeeds.

   n1 Further statement by Commissioners Hyde (Chairman), Lee, and Wadsworth, public notice No. 19274, July 12, 1968.

   If our colleagues are correct about the basis and nature of the 1965 ruling, the Commission was then guilty of a grave injustice against WLBT.If the Commission imposed on WLBT a 1-year renewal without a finding that WLBT's past performance warranted such a measure, WLBT could justifiably charge the Commission with a serious abuse of discretion, if not a breach of the Constitution.For a 1-year renewal is a sanction, in law and in fact.The 1960 Report and Order, in which the Commission first adopted its rules providing for issuance of short-term licenses, could hardly have been less ambiguous on this point.n2 As one of the broadcasters filing comments urged -- and as all the participants in the rulemaking proceeding understood -- the 1-year renewal proposal was intended to provide a "device less drastic than the revocation of license or a denial of renewal * * *;" n3 the device was adopted as just such an "effective enforcement tool," n4 because, in the Commission's own words, "available Commission procedures -- involving revocating of licenses, cease and desist orders, and the likelihood of extended hearings -- frequently impose a heavy burden on a licensee whose culpability may well be slight."n5 The 1-year renewal would serve well as an interim sanction, the Commission said, because it would -- give the individual licensee a reasonable opportunity to set his own house in order without unduly protracting the period of delay in acting upon a pending application for license renewal, or without, on the other hand, granting a license for a full 3-year period before there has been an opportunity for the licensee to give reliable assurances, through demonstration in practice, that deficiencies will be corrected." [Emphasis added.] n6

   n2 20 P. & F. Radio Reg. 1589 (1960).

   n3 Id. at 1590, par. 3.

   n4 Id. at 1592, par. 12.

   n5 Ibid.

   n6 Ibid.

Since 1960, Commission precedents confirm the penal import of the 1-year renewal procedure.n7

   n7 KDB Broadcasting, 22 P. & F. Radio Reg. 180 (1961); Allentown Broadcasting Corp., 22 P. & F. Radio Reg. 181 (1961); Miss Ark Broadcasting Co., 22 P. & F. Radio Reg. 305 (1961); and Noble Broadcasting Corp., 21 P. & F. Radio Reg. 881 (1961).

   In 1965, the Commission used the device just as it was intended to be used, and just as we have characterized it -- as a kind of suspended sentence (though one which imposes substantial and recognized burdens on the station) "plainly probationary in nature." n8 As we stated in our dissenting opinion, the 1965 1-year renewal was conditioned by the Commission on the requirements that WLBT comply strictly with the fairness doctrine, that it promptly initiate meaningful contacts with the Negro Community in Jackson, and that it "immediately cease discriminatory programming patterns." n9 [Emphasis added.] A reading of the Commission's 1965 decision itself -- to which the present further statement never once refers -- leaves no doubt that the Commission then was quite convinced that WLBT had been imperfect in its loyalty to the fairness doctrine, that it had not maintained contacts with Jackson Negroes, and that it had beenengaging in the discriminatory programming patterns which the Commission ordered it to cease.n10

   n8 Dissent, text at note 7.We are frankly dumbfounded by the further statement's attempt to draw an important distinction between a "Memorandum Opinion and Order" and a "decision." Further statement, note 1.The two phrases are generically indistinguishable.When the Commission adopted the 1965 Memorandum Opinion and Order in Lamar Life Broadcasting Co., 38 FCC 1143, 5 P. & F. Radio Reg. 2d 205 (1965), a "decision" was perforce made.The effect of that action was to record publicly the fact that the Commission found that WLBT's programming practices were such as to warrant a probationary license renewal. There is nothing magical in the words "Memorandum Opinion and Order" which can suggest anything other than the fact that a "decision" was made.Consequently, no amount of semantic acrobatics can erase the fact that the Commission, in 1965, looked at the facts and interpreted them in a way which is in direct contravention to the interpretation the majority now places upon those same facts.

   n9 Lamar Life Broadcasting Co., 38 FCC 1143, 1154, 5 P. & F. Radio Reg. 2d 205, 220 (1965).

   n10 Ibid.In its 1965 Memorandum Opinion and Order, the Commission noted that many of petitioners' allegations raised "substantial questions * * * as to whether the licensee's operation can be said to have conformed fully to the public interest standard of the Communications Act of 1934" (p. 1153, par. 22). Interestingly, the Commission at several points did not go beyond noting that some instances were questionable, apparently because WLBT had supplied the Commission with several unsatisfactory responses which appeared evasive, incomplete or irrelevant (p. 1146, pars. 8, 10, and 11; p. 1147, pars. 12, 13, and note 8; p. 1153, par. 22).Nevertheless, the Commission did determine that WLBT had incurred obligations under the fairness doctrine by the following programming (proper discharge of which it had not demonstrated to the Commission 's satisfaction).Specifically, the Commission --

   (1) Found that station editorials broadcast during the Meredith Ole Miss crisis characteristically opposed Meredith's admission (p. 1146, par. 9(i));

   (2) Examined station scripts for the 1962-63 "Comment" programs, and concluded that "While, as the licensee claims, the editorials can be considered as discussing 'states rights,' it cannot, we think, reasonably be contended that they did not also discuss the issue of segregation" (p. 1147, par. 12);

   (3) Discovered that "* * * With respect to this ["Comment"] program series during the period under investigation, there were several spokesmen who presented various segregationist viewpoints but, with possibly one exception, no Negro or other spokesman was shown to have presented the viewpoint for integration" (p. 1148, par. 14);

   (4) Found that WLBT's excuse offered for not allowing commercial spot time in answer to a White Citizens Council advertisement in September 1962, was "all the more strained, since the announcement in question constituted a personal attack upon the groups or persons leading the integration effort in Jackson (in that it called such groups or persons 'Communists') and thus called for the mailing of copies of the announcements to the group or persons in question, with an offer for a comparable response" (pp. 1146-1147, par. 11); and

   (5) Noted that WLBT "does not try to defend" its practice of deliberately excluding from a daily devotional program "half the churches in the area on the basis of race" (pp. 1154-1155, par. 25 (iv)).

   If, as the further statement implies, the Commission could not find facts justifying its imposition of the sanction of a 1-year renewal in 1965, it is all the more clear that the Commission should then have designated the whole matter for hearing, as Commissioners E. William Henry (then Chairman) and Kenneth A. Cox pointed out in their dissent to the 1965 Memorandum Opinion and Order (pp. 1158-1166).But, obviously, the Commission did ascertain enough to be sure that WLBT, at the very least, deserved only a 1-year renewal.While the 1-year renewal sanction was not founded on evidentiary facts -- that is, testimony received in a formal hearing it was found upon facts, some of which were not even contested by Lamar Life (e.g., p. 1155, pars. 25(iv) and 26: "We realize that there has been merited criticism of the station and its operation in the past.").

   The Commission looked at the long record of complaints against WLBT, and its correspondence with the Commission and with private complainants.It had before it the earlier report of two investigators who had been sent to Jackson to look into the facts of the station's performance.On the basis of those findings, the Commission decided, in the words of its 1960 Report and Order, that the deficiencies had in fact occurred, and that a probationary 1-year renewal was the appropriate sanction under the circumstances.

 

   B.THE BURDEN OF PROOF QUESTION

 

   We remain perplexed by our colleagues' interpretation of the burden of proof issue, notwithstanding their attempt to further elucidate this problem in the further statement.As we noted in our dissenting opinion, the court of appeals clearly expressed its expectation that the Commission would resolve the problem by placing upon petitioners "only the burden of going forward with evidence in the first instance." n11 By the strictures of the Communications Act of 1934, it is the licensee who is obligated to prove that renewal of his license is in the public interest, convenience, or necessity.n12

   n11 Office of Communication of United Church of Christ v. FCC, 8 P. & F. Radio Reg. 2d 2081, 2082 (D.C. Cir. 1966).

   n12 47 U.S.C. 309(e) (1964) ("The burden of proceeding with the introduction of evidence and the burden of proof shall be upon the applicant, except that with respect to any issue presented by a petition to deny * * *, such burden shall be as determined by the Commission.").

   Our colleagues maintain that, "neither the burden of going forward with the evidence nor the burden of non-persuasion [is] * * * discharged by the party on whom it may fall by the simple making of charges and/or allegations." n13 Needless to say, we have not suggested that "simple charges and/or allegations" are adequate.However, under their construction, it almost seems that presumptions favoring the licensee arise as to each of the issues contained in the pleadings; and, thus, as to the ultimate issue of public interest.This rule of procedure is plainly unjust and flatly contradictory of the court's memorandum respecting the burden of proof questions, a fact noted in our dissent and not disputed by the further statement.

   n13 Further statement, pp. 2-3.

   The further statement seems to hypothesize a case in which "petitioners had charged that on one occasion a Negro had been mentioned without a courtesy title * * *." n14 [Emphasis in original.] Our colleagues impute to us the desire, given these circumstances, to require that WLBT be subjected to onerous requirements of proof to refute that charge.

   n14 Id. at p. 3.We have puzzled long over the unusual syntax and punctuation of this sentence from the further statement, in an effort to determine whether it is a statement or a question, and whether it purports to be a hypothetical or an interpretation of the record.Since petitioners' claims respecting the use of courtesy titles have been before this Commission in voluminous detail since 1964, we understand the further statement to recognize that more than one individual testified to more than one example of the failure to use courtesy titles.Record, 532, 560-561, 597, 695, 1250.

   We agree with the further statement that under these stated circumstances renewal should not be denied summarily without further proof.But the hypothetical is a red herring.At the hearing into petitioners' charges respecting WLBT's general practice in referring to Negroes, sworn testimony was offered by several witnesses that WLBT employees frequently engaged in the practice of using the terms "nigger" and "nigra," n15 a practice unquestionably related to the allegation that station employees intentionally visited discourtesies upon Negroes.

   n15 Record, 558, 567, 661-612, 1476-1477, 1503-1505.

   Determinative, moreover, is the fact that sworn testimony is not, as the further statement appears to assume, the equivalent only of a charge or allegation in a complaint.Unrebutted, such testimony ordinarily should be dispositive of the issue.Moreover, this testimony need not be overwhelming in its weight and need not come from a multitude of witnesses.When petitioners offered evidence in support of their pleadings they discharged their burden of going forward with evidence in the first instance.The double burden of going forward with evidence to the contrary and of ultimate persuasion on the issue then devolved on WLBT.The station would not have had to produce "3 days, or even months or years" n16 of tapes to refute such testimony.It need only have offered contrary testimony.Once this had been accomplished, we would then have reached the question of persuasion.But without contrary testimony from WLBT as to its practices respecting references to Negroes, petitioners' proof of specific instances of misconduct must be viewed as unrebutted and dispositive of the issue.

   n16 Further statement, pt. III.In view of our colleagues' cryptic reference in pt. III to "legal systems in other nations" [emphasis in original] we would point out that the imposition of a sanction such as a 1-year renewal, without first affording the penalized party a hearing, is seven less fair than the practice in many European countries of putting the burden of proof on the accused.We approve of neither practice.But we do believe, as suggested in sec.A, supra, that the Commission did have a factual basis for finding WLBT's performance sufficiently alarming to warrant imposition of a sanction in 1965. This action was taken on the basis of evidence -- not mere allegations in the petitions to deny -- which justified, and, indeed, required, denial of WLBT's regular renewal application.Likewise, in this present proceeding, we believe that the hearing has adduced a wealth of evidence to warrant complete denial of the renewal application.

   Not having appreciated the distinction between charges and sworn testimony, it is not surprising that the majority further confuses the difference between an obligation to come forward with evidence and the risk of non-persuasion.The former may be, and often is, placed upon one party while the latter reposes with another.Foreign legal systems have nothing to do with the allocation of theseburdens.It is elementary that in this Nation the burdens are distributed differently, according to the nature of the proceeding and the various presumptions which may arise.In a criminal proceeding, it is the State which is ordinarily obligated to come forward with evidence as well as bear the risk of non-persuasion; in tort actions, the plaintiff may be charged with the risk of non-persuasion, although the defendant is required to come forward with evidence to which he has exclusive access.In Commission proceedings, the licensee is expected to bear the risk of non-persuasion, although the burden of producing evidence in the first instance may be allocated as circumstances warrant.

   If our colleagues have consistently avoided the proper allocation of burdens because they view such a distribution as foreign to our legal system, then it is all the more incomprehensible how they were hoodwinked into such a naive view of the legal process.

 

   C.THE "SORRY, CABLE TROUBLE" INCIDENT

 

   The further statement disputes our version of the 1963 "Sorry, Cable Trouble" incident.It claims that the record does not support our conclusion that Dr. R. Edwin King testified that, after he saw a "Sorry, Cable Trouble" sign substituted for a portion of an NBC program in which a Jackson situation was portrayed, he called the station and was told by someone who refused to identify himself that the Jackson sit-in was deliberately blacked out by WLBT.n17 All we can say in response to this assertion is that it is not true: the record pages show that Rev. King testified to having called the station; to having asked if the program had been intentionally interrupted to avoid telecasting scenes from the Woolworth sit-in; to having received an affirmative answer; and to the fact that the individual answering WLBT's telephone refused to identify himself.n18

   n17 Further statement, pt. IV.

   n18 "Q.[Counsel for petitioners.] With whom did you speak?"

   "A.[Dr. King.] The man refused to identify himself * * *.I said, 'Did you cut that off because that showed those Negroes sitting in at Woolworth's in Jackson?' The man said, 'Yes.'" Record, 720-721, 749-50.

   The record also shows that the examiner ordered Dr. King's testimony stricken on the ground that, "You can't quote some indisclosed [sic] person." n19

   n19 Record, 721.

   The majority is correct in noting that the record at this point does not support our statement that Dr. King asked for "the manager" in making this particular telephone call.n20 But this mistake hardly affects our conclusions about the incident in question; it does not change the basic facts testified to by Dr. King -- that he was told that the "Sorry, Cable Trouble" sign was fraudulently substituted for the network program then on the air -- nor the fact that, by refusing to give his name to Dr. King, whoever took the call ultimately succeeded in having testimony about the incident stricken from the record.

   n20 See dissent, text at note 38.

   It might be noted, moreover, that in similar instances, at least two church witnesses testified that they telephoned a complaint to WLBT, that their complaints were rebuffed -- and that the FCC's examiner also rejected their testimony.Mrs. Ruth B. Owens attempted to recount the reaction of a station employee when she called to complain about a news announcer's use of the word "nigger." She did ask to speak with the manager, and was told he was not present.She then apparently began to explain to the WLBT employee what, specifically, she objected to in the newscast.n21 The examiner ordered her testimony stricken because, "That is too broad and it is pure hearsay." n22 Rev. Wendell P. Taylor also testified to having phoned WLBT to complain about news coverage of a sermon he had delivered.The examiner ordered this testimony stricken because, "You have to say specifically who you spoke to." n23

   n21 Record, 595-596.

   n22 Record, 596.

   n23 Record, 645.

   As counsel for petitioners noted, it is reasonable for members of the public to anticipate that persons answering WLBT's telephone are employees of that station, and that statements made by these employees are consequently attributable to the station.n24 Perhaps counsel for WLBT would have us assume interlopers repeatedly gain access to the station's telephones for purposes of frustrating complainants.If this is true, and it seems improbable, this in turn would raise grave questions respecting the licensee's reasonable control of the operation of the station.In any event, as the examiner stated to WLBT's counsel, "You probably know who it is" who answered WLBT's telephone.n25

   n24 Record, 596.

   n25 Record, 735.

   At a minimum, petitioners should certainly have been accorded the same solicitude the examiner displayed for WLBT when he admitted into evidence an unsigned letter purportedly written by an official from Southern Bell designed to exonerate the station from any control over the interruption of "American Revolution, '63." n26 Grave suspicions about FCC policies and practices will invariably arise when its officials appear to erect insuperable evidentiary standards for some witnesses and then tear them down again for others.

   n26 Broadcast Bureau exhibit No. 4.The exhibit was apparently placed in the hands of the Broadcast Bureau by Mr. Beard or his counsel.Mr. Beard testified to having received the original copy, although it does not appear to have been produced for the record.Record, 876-878.

 

   D.THE "LITTLE ROCK CRISIS" MATTER

 

   The further statement contends that the record does not support our conclusion that WLBT violated the fairness doctrine in connection with its 1957 broadcast by Governor Coleman, Senator Eastland, and Congressman John Bell Williams on the Little Rock Crisis.n27 The basis for our colleagues' assertion on this point is difficult to discern.By their own characterization (which is accurate), the record shows that on the program "* * * there were no Negroes, no persons to represent the Negro viewpoint, no persons who favored 'segregation,' [sic; as the further statement indicates, this must mean 'integration'] and no persons who favored obeying Federal courts." n28 The assertion in our dissent that the officials on the program blamed Negroes for the outbreak of violence in Little Rock was overstated, as our colleagues note.n29 This does not, however, undermine the fact that uncontradicted testimony in the record demonstrates that the three officials named uniformly backed segregation, or the basic conclusion that WLBT deliberately flouted fairness principles in its treatment of the Little Rock affair.WLBT not only failed to present fairly all sides of this controversial issue of public importance, it even refused reply time when requested by Medgar W. Evers for the NAACP (intervenors exhibits 104, 106).

   n27 Further statement, pt. V.

   n28 Ibid.See Record, 677-679.

   n29 Dissent, text at note 46.

   We do not need to envision the majority's case of a "strictly factual report by a city commissioner on progress in building a sewage disposal plant" n30 to arrive at a better appreciation of the fairness doctrine.The short answer is that the question of whether the program was "partisan or controversial" has, sewage plants notwithstanding, been resolved.Stipulation 1, No. 16 -- a letter from The Commission to Lamar Life Broadcasting Co., dated July 25, 1963 noted that a review of WLBT's past record indicated that the grounds for refusing reply time had been "found by the Commission to be inconsistent with the fairness doctrine." n31

   n30 Further statement, pt. VIII.The bankruptcy of the majority's argument is highlighted by footnote 16 of the further statement, where the question is asked if we would have had Washington,D.C., stations present someone "urging rioters, arsonists, and looters to remain on the streets in defiance of Commissioner Washington [who urged compliance with a curfew]." This is nonsense, and our colleagues know it.They can point to nothing in our dissent, or in any other statement from this Commission with respect to the fairness doctrine, which would support such a suggestion.What we question about par. 14 in the majority's original opinion is its injection of the concept of "partisan" programs into the fairness field -- for the first time, so far as we can recall. In pt. VIII of the further statement -- which is captioned "Applicability of the Fairness Doctrine to a Possibly Nonpartisan, Noncontroversial Program" (which implies that the Little Rock crisis program was of that fairness doctrine would have applied.But they go on the say, "We did not find any record support for the contention that the program in question ["The Little Rock Crisis' program] was 'partisan.'"

   Our colleagues have still not explained the sudden unveiling of this new requirement which must be found present before the fairness doctrine can be invoked.Nor have they explained their apparent conclusion that Governor Coleman, Senator Eastland, and Congressman Williams were not then "[adherents] to a party or faction," whether unreasoning or otherwise.Further statement, pt. VIII.(It would seem particularly unfortunate if only the expression of the views of unreasoning adherents to a party or faction were protected by the fairness doctrine, since that would necessarily exclude the great volume of reasoned disputation which the doctrine is designed to protect and promote.)

   The real issue is whether or not these public officials expressed positions on one side of the integration question over WLBT's facilities.If so, the question then arises as to whether WLBT presented an opportunity to Negro leaders or others for the purpose of stating the opposing viewpoint.We think the record clearly shows that the station made itself available for broadcast of the prosegregation position, but not for the opposing viewpoint.Consequently, the fairness doctrine was applicable to this situation, and WLBT violated its strictures.We do not believe that it is necessary to engage in discussion about partisanship to determine whether the doctrine of fairness was transgressed.

   n31 Stipulation 1, No. 16, p. 3.This 1963 letter, which in part reviewed for WLBT the station's past history of programming practices, serves to remove any possible doubt about the meaning of the Commission's earlier letter, which was mailed to WLBT by direction of the Commission on July 1, 1959, intervenors exhibit No. 110.

 

   E.THE CITIZENS COUNCIL FORUM

 

   Our colleagues' reaffirmed preference for the testimony of Fred Beard respecting the White Citizens Council depends entirely upon a conclusory argument.There is nowhere offered in either the original opinion or the subsequent further statement one shred of a reason why Council member Beard's testimony "outweighed the contrary testimony" n32 of Dr. Beittel (president of Tougaloo College) and Mrs. Hazel Brannon Smith (Pulitzer Prize winning journalist who testified as a witness for WLBT).

   n32 Further statement, pt. VI.In this section of the further statement, our colleagues seized upon the fact that petitioners' proposed findings referred to Hazel Brannon Smith as an "expert witness." It is true that at 1245 of the Record there was some discussion respecting Mrs. Smith's qualifications to testify about WLBT's news programming, and that the examiner apparently regarded her as qualified.However, that qualification would apply not just to one question alone, as the further statement would have us believe, but to all questions regarding the news broadcasts on WLBT.When, at Record 1253, Mrs. Smith characterized the ideological position of the White Citizens Council, as quoted in the petitioners' proposed finding No. 54, no challenge was raised as to her qualifications to do so.Consequently, we cannot discover the basis for our colleagues' stressing that she testified about the Citizens Council as a non-expert.

   The majority's subsequent statement raises the implication that Mr. Beard was the only "qualified" expert witness to testify about the Citizens Council. Presumably, members of the public viewing the council's spot announcements are not, in the majority's view, qualified to testify as to the nature of such programs.Presumably, too, the president of TougalooCollege, a resident of Jackson for 7 years and an activist in the civil rights movement, is not qualified to testify about one of the civil rights movement's chief organizational antagonists.In short, the further statement seems to suggest that only members or former members of the White Citizens Council can be expected to testify objectively and informatively about that organization.

   We are not cognizant of any proscription against members of the public testifying about such matters, especially when they are so intimately connected with the public issues of chief concern to such an organization.The rules as to expert testimony were never designed to apply in such a situation or to achieve such results.Even less are we willing to accept the majority's conclusion that an avowed segregationist's view of such an organization outweighs that of two other individuals.If the majority's analysis is to prevail, the Commission hereafter will have to solicit the opinion of Mr. Dan Smoot before characterizing the Dan Smoot Report as controversial; or consult Rev. Billy James Hargis before concluding that his programs involve anything but religious issues.

   No doubt, Mr. Beard is exceptionally well acquainted with the general purposes of the White Citizens Council.But we cannot quite believe that the majority is serious in maintaining its preference for such self-interested testimony over that offered by Mrs. Smith and Dr. Beittel.

 

   F.THE FREEDOM BOOKSTORE

 

   We are still disturbed over the surprise expressed in the further statement at finding no probative evidence about the Freedom Bookstore in the record.n33 In light of the examiner's consistent and unequivocal announcements that he would not permit such evidence, it should not come as a surprise that none appears in the record.n34

   n33 Further statement, pt. XI.

   n34 See dissent, text at notes 51-58.

   Mr. Fred Beard is, of course, the central figure in connecting the bookstore with the station.If it is not enough that the bookstore received numerous spot announcements gratis on WLBT, n35 and shared its offices, n36 Mr. Beard's ironic action in referring Rev. Robert L.T. Smith to the bookstore when Rev. Smith approached WLBT for campaign time on the air is certainly probative of something more than an accidental, innocent relationship.n37

   n35 Intervenors exhibit No. 49, pp. 1-26; Record, 1402.

   n36 Intervenors exhibit No. 49, p. 27.

   n37 In speaking of Mr. Beard's conduct on occasions when Rev. Smith approached WLBT to buy campaign time, Rev. Smith testified "[On] more than one occasion he referred us to certain books and booklets in the bookstore there -- so-called bookstore there in the premises of the broadcasting company -- go out of his office, down a little hall and down this way, and we weren't too much surprised after the way he acted but we found books there with swastikas on the * * *" [sic]. Record, 249.

   When counsel for petitioners attempted to develop a line of questioning that would permit Dr. Beittel to testify about his knowledge of this connection between Beard, the Citizens Council and the bookstore, the examiner cut him off at the starting point, n38 as he had cut Rev. Smith off when he began testifying about the same relationship.n39

   n38 As we pointed out in our dissent, note 55, Dr. Beittel had previously written FCC Chairman E. William Henry to complain about station manager Fred Beard's operation of the Freedom Bookstore on WLBT's premises, and to note that the bookstore propagated the philosophy of the White Citizens Council, of which Beard was a former member.Intervenors exhibit No. 18.Counsel for intervenors attempted to have Dr. Beittel testify as to his knowledge of this interconnection, first by introducing the letter and next by trying to qualify Dr. Beittel by establishing his familiarity with the Citizens Council.Record, 431, 435, 447-458.The examiner frustrated both attempts, consistent with his previous ruling that all testimony about the Bookstore was irrelevant.Record, 250-251.

   n39 Record, 249.

 

   G.MISREPRESENTATIONS BY WLBT

 

   The further statement seeks to justify five separate instances of policy practices by WLBT which we identified as misrepresentations to the public and the Commission.n40

n40 Further statement, pt. VII.

   1.The first involves the contradiction between WLBT's profession that it eschewed programming of controversial issues involving the question of integration in the late 1950's and early 1960's.The further statement justifies WLBT's departure from the Commission's oft-announced policy by noting, "we believe the extent of that representation was limited to full and complete programs (as opposed to spot announcements or editorials) * * *." n41 [Emphasis in original.] We have no intention of engaging the majority in a discussion of its conception of the meaning of the word "program." But we think it somewhat less than ingenuous for the majority to contend that local programs are treated differently than locally originated editorials under the Commission's policies relating to controversial issue programming.The fairness doctrine does not envision such a distinction; the FCC has never before drawn such a distinction in ruling on broadcasters' treatment of public controversy; the application form provided for applicants does not stipulate such a fine line.If licensees are to be permitted to avoid the consequences of representations made to the Commission by the majority's use of illusory distinctions between editorials and local programs, then the majority should announce this as general policy, rather than hide it in an obscure and obscuring footnote to a further statement in an adjudicative case.n42

   n41 Id. at note 10."Local programs" are defined by the Commission's application form for renewal of station licenses both by source and by type.By source of origin, which is essentially a mechanical rubric, "A local program (L) is any program originated or produced by the station, or for the production of which the station is substantially responsible * * *.All non-network news programs may be classified as local * * *." FCC form 303, sec. IV-B, p. i.By type of program, the Commission's form defines 11 varieties of programs, including agricultural, entertainment, news, public affairs, religious, instructional, sports, editorials, political programs, educational institution programs, and other programs.Public affairs programming includes: Talks, commentaries, discussions, speeches, editorials, political programs, documentaries, forums, panels, round tables, and similar programs primarily concerning local, national, and international public affairs. Id. at i-ii.

   Clearly, locally originated editorials stating the opinion of the licensee are within the meaning of a local program as defined in the Commission's renewal application form. Id. at ii.Beyond the vague hints supplied by the further statement that somehow WLBT misunderstood the meaning of the word "program," there is no basis whatsoever for believing that WLBT meant by local programs something other than that which it means when it files an application for renewal with this Commission.

   n42 Ibid.

   2.The sequence of events surrounding Rev. Robert L.T. Smith's request for campaign spot announcement space on WLBT is long and involved, but illustrative of the variegated efforts of WLBT to offer up numerous excuses for its failures to adhere to Commission rules.Briefly, this was the sequence of events which followed the first 1962 exchange between Rev. Smith and Mr. Fred Beard, when Mr. Beard refused Rev. Smith access to WLBT's facilities and gratuitously pointed the way to the Freedom Bookstore: Rev. Smith complained to the Commission on January 16, 1962; n43 the Commission in turn asked that WLBT answer the charges filed by Rev. Smith.n44 WLBT then wired, on February 1, 1962, that "WLBT has not refused to sell the candidate time * * *.We have * * * offered to sell him sport [sic] announcements at the present time." n45 This was reaffirmed by WLBT in a letter dated the same day, in which the station avowed, "WLBT has not refused to sell the candidate time." n46 On February 21, 1962, the FCC wrote to Rev. Smith explaining that it had apprised WLBT of its obligations under Commission rules to provide reasonable access, and that WLBT's action could be reviewed at renewal time.n47 Following this admonition, WLBT countered on April 12, 1962, with notification of a "review" concluding that "we would not be properly discharging our responsibility as a broadcast licensee or otherwise operating in the public interest if we were to permit the facilities of station WLBT to be used by any candidate * * *." n48 Curiously, this "review" followed by one day Rev. Smith's repetition of his request to buy time on WLBT.n49 Asked to justify this "review" in light of its peculiarly close association with Rev. Smith's reintroduced request to buy time, WLBT responded with the excuse, "Our decision not to sell time to Reverend Smith was primarily based on the fact that there is no interest in this race being manifested in the district * * *." n50

   n43 Intervenors exhibit No. 7.

   n44 Stipulation 1, No. 2.

   n45 Stipulation 1, No. 3.

   n46 Stipulation 1, No. 4.

   n47 Stipulation 1, No. 7.

   n48 Stipulation 1, No. 8.

   n49 Intervenors exhibit No. 11, p. 2.

   n50 Stipulation 1, No. 11.Ultimately, Rev. Smith was afforded limited access to WLBT prior to the congressional election.Record, 312.But he did not appear over WLBT's facilities until after the Feb. 1, 1962, deadline for registration and payment of the local poll tax. As Rev. Smith testified, with the February 1 deadline past, "[Our] purpose was defeated * * *." Record, 312.

   It is of little wonder that no interest was being manifested, in light of the fact that WLBT had persistently dragged its heels since Rev. Smith's January 1962 request to buy time.It is common knowledge that stimulation of the public 's interest in a candidate is integrally related to the degree of exposure afforded him over broadcast facilities.The Commission's credulity is called into serious question when it accepts such a thin subterfuge as erected by WLBT throughout this matter.First, the station contended that it had offered Rev. Smith spot announcements any time he wished to use them; then, when he applied again for campaign time, WLBT suddenly undertook a "review," concluding that a change in policy was needed. Rev. Smith, armed with a letter of inquiry from the FCC, was an entirely different Rev. Smith from the one who approached WLBT in January.Understandably, a "review" was in order.

   3.The third issue of misrepresentation which the majority seeks to dispel involves the question of whether or not WLBT broadcast editorials on the days following its avowed moratorium on locally originated opinion shows.The only physical evidence adduced, the station's own logs, strongly support petitioners' charges that WLBT did not truthfully represent to the Commission its programming policies during this period.n51 Mr. Beard testified that the station was experiencing added responsibilities during this period, and implied that somehow this might account for an error in the logs.n52 But it is left to our conjecture as to the ways in which these errors might have been created by the presence of outside newsmen covering the Meredith-Ole Miss crisis.It is decidedly not true, however, as the majority would have us believe, n53 that the station's logs for this period were in such error that no one could conclude with certainty that editorials were broadcast.Station employee, and now program manager, Robert L. McRaney testified that, "According to the way I read the log, it indicates that it [a September 27 editorial] did run * * *.It is difficult to match up the initials on the right but the timing on the left seems to indicate that." n54

   n51 Intervenors exhibit No. 31.

   n52 Record, 843-848.

   n53 Further Statement, pt. VII.

   n54 Record, 1461.See also 1462.

   At issue here is an important and as yet unresolved problem: Just how are we to provide for public participation in station renewal processes?If the majority's rigorous standards for evidentiary testimony are to apply, a public group opposing renewal must produce witnesses who can detail name, date and hour of each offensive broadcast and transgression by the station.But if they produce from the station's own records evidence of those dates and hours, the majority will accept as dispositive of the issue the self-serving testimony of a man like Fred Beard.Such parties are likely to decide that they may as well stay home as take part in renewal hearings, for neither their collective recollections nor the station's own records will be accepted as sufficient and satisfying proof when renewal time arrives.

   4.The fourth objection raised by the further statement rests again upon an allegedly critical distinction between "local programs" and "editorials." n55 As we noted above, such a distinction disserves both the public and this Commission.By categorizing editorials and spot announcements differently than "local programs," our colleagues achieve for WLBT a kind of de facto segregation of locally originated telecasts dealing with questions of civil rights.No one disputes the fact the WLBT properly offered reply time to persons wishing to respond to noncivil rights oriented statements.Mrs. Hazel Brannon Smith, for instance, occasionally appeared on WLBT from 1960-64 to answer opposing viewpoints on numerous community issues -- none of which directly concerned civil rights.n56 That she was, incidentally, widely known as an advocate of integration does not appear to us to lend a special significance to such appearances, or to discharge WLBT's obligation to present prointegration spokesmen in response to spot announcements, editorials and "local programs" alike.

   n55 Further Statement, pt. VII.

   n56 Of the two instances which Mrs. Smith could describe as her appearances on the "Comment" programs, one concerned the national birthday of the 4-H Club, and its respective chapter in HolmesCounty.The other related to "the importance of maintaining a free press." Record, 1243-44.But see, Lamar Life Broadcasting Co., 38 FCC 1143, 1148 note 9, 5 P. & F. Radio Reg. 2d 205, 213 note 9 (1965).

   5.Finally, our colleagues again dispute our contention that Lamar Life Insurance Co. has, in fact, been in direct control of WLBT since the initial award of a construction permit.To be sure, the facts have been before the Commission.In 1953 Lamar Life Insurance Co. ostensibly transferred control of WLBT to Lamar Life Broadcasting Co.n57 In 1965, after WLBT fell under the scrutiny of the Commission, WLBT was transferred back to Lamar Life Insurance. n58 As Commissioner Cox then noted, there was substantial reason to believe that the 1965 application for transfer of control was designed as a subterfuge to permit a later claim by WLBT that, while it had been remiss in the past, the new ownership would improve things.n59 That Commissioner Cox was vindicated in his suspicions by later pleadings of Lamar Life Insurance Co. n60 does not seem to us sufficient reason to find that because a Commissioner saw behind the subterfuge.WLBT therefore made no misrepresentations to the Commission.

   n57 Lamar Life Broadcasting Co., 38 FCC 1143, 1165, 5 P. & F. Radio Reg. 2d 205, 229 (1965) (dissenting opinion of Chairman Henry in which Commissioner Cox joins).

   n58 Lamar Life Broadcasting Co., 1 FCC 2d 1484, 6 P. & F. Radio Reg. 2d 308 (1966).

   n59 As officials of Lamar Life Insurance Co. averred in a letter to theCommission dated Apr. 9, 1965, "We realize that there has been merited criticism of the station and its operations in the past.However * * * we assure you that, through direct control, we will see that the policies and directives of the Federal Communications Commission are strictly adhered to * * *" stipulation 1, No. 25. 

   n60 Attachment (Lamar exhibit No. 64) to proposed findings of fact and conclusions of law of Lamar Life Insurance Co., filed with the Commission July 28, 1967.

 


FURTHER STATEMENT BY COMMISSIONERS HYDE (CHAIRMAN), LEE, AND WADSWORTH
 

I. Introduction
 

   The dissenting opinion issued in this case requires this further statement. It is apparent from the dissent that the dissenting Commissioners have misunderstood both the facts established on the record and the reasoning process by which we drew our conclusions.
 

II. Allegations or Charges Not Facts Unless Proven
 

   We note a tendency on the part of the dissenting Commissioners to use rulings on demurrer as if they were proven facts.n1 To this substantive error we now address ourselves in detail.At page 2 of the dissent, the dissenters clearly recognized that the court of appeals ruled "petitioners' allegations were sufficiently serious and plausible to require the agency to hold a full evidentiary hearing [italic supplied]" a clear example of a ruling on demurrer. But by page 3, the allegations (recognized as such by the court) become "the facts requiring the original 1-year renewal [italic supplied]." Our 1965 Memorandum Opinion and Order was not founded on evidentiary facts and we are sure that the dissenters would not want us to make such findings without a full adjudicatory hearing.Indeed, one of the presently dissenting Commissioners (Commissioner Cox) joined in a dissent in 1965 which remarked that, "these petitions contain most serious allegations which, if true, would indicate * * * [italic supplied]." At page 3 of the dissent the dissenters state that in May 1965 the Commission "found" concerning WLBT's performance (which the Commission certainly did not do) and in 1968 "looks over the same record" and granted a [*475]renewal.The dissenters apparently contend that when one makes charges in 1965, they are held good against demurrer even though they are not proven in a subsequent evidentiary hearing, one may still criticize the tribunal for failing to impose sanctions (or for granting a license).Other instances n2 occur throughout the dissent.The dissenters on page 41 clearly recognize that the court of appeals ruled that petitioners' allegations, if true, would be serious and state that the Commission assumed them to be true in 1965 ("and we believe the record now confirms [italic supplied]"); however, on page 42 the allegations and assumptions which were not proven during the course of the hearing, become historical facts.

   n1 We also point out that the Commission action of May 19, 1965, was a Memorandum Opinion and Order and not a "decision" (dissent, pp. 6, 24).The Commission action of May 26, 1966, was an Order and not a "decision" (dissent, pp. 7, 16).The dissent, at p. 8, refers to the Commission's "earlier decisions" but the only decision rendered by the Commission thus far, is the one dissented from.At p. 12 of the dissent, aside from the aspersions cast upon the judicial techniques of the court of appeals, the fact remains that no "decision of a subordinate agency," erroneous or otherwise, has been adopted by that court.

   n2 E.g., "facts adduced at the hearing and in previous complaints [italic supplied]", dissent, p. 4.Page 25 of the dissent remarks "the Commission considered each of these incidents as serious fairness violations" but fails to note that such consideration was on demurrer.Page 28 of the dissent notes that WLBT had been warned "that its zeal for suppressing the views of its political opponents was sharply at odds with the law" but again assumes that such were proven -- not merely alleged.

 

   III.The Burden of Proof

 

   We agree with our dissenting colleagues as to which parties in this case were assigned the burden of proof with respect to which issues.However, we differ profoundly as to the meaning of the term, "burden of proof." Suffice to say that we consider neither the burden of going forward with the evidence nor the burden of non-persuasion to be discharged by the party on whom it may fall by the simple making of charges and/or allegations.To employ a reduction ad absurdum, the dissenters apparently would have us require that, since petitioners had charged that on one occasion a Negro had been mentioned without a courtesy title, the renewal applicant should then subject the examiner to watching and listening to 3 days, or even months or years of audio and video tapes to disprove the charge? We do not think that the examiner imposed an impossible or unreasonable burden upon petitioners by requiring them to prove specific instances of misconduct. There are legal systems in other nations where the mere making of charges casts upon the respondent the burden of proving their falsity.We do not believe that such is the time-honored common law precept, the Anglo-American legal standard, and we decline to adopt it as our own.

 

   IV.The "Sorry, Cable Trouble" Incident

 

   Worthy of comment in connection with the accuracy of the dissent is, we believe, the account of the "cable trouble" incident at pages 14-15 thereof. There appears to be little question that a blackout occurred during the incident described at length in the Initial Decision, finding 75, et seq.The dissenters state n3 that Dr. King called the station, asked to speak with "the manager" [dissenters' quotes], and spoke with some person who refused to identify himself who "told him that the station had purposefully substituted the cable trouble sign for the [Jackson incident]." We are referred to footnote 38 for documentation which cites Tr. 721.We have searched Dr. King's testimony in vain[*476]for this version of the incident.The Reverend Dr. King testified for the intervenors (Tr. 720) that the picture disappeared, that he called the station and the person answering the phone refused to identify himself, that he asked if the picture was cut off because it dealt with Jackson and that the person said, "Yes." During Broadcast Bureau counsel's cross-examination of Dr. King, the clergyman testified: "I think it said 'Sorry, Cable Trouble' * * *." The dissenters assertion that Dr. King asked to speak to "the manager" and that the unidentified person told him "that the station had purposefully substituted the cable trouble sign for the [Jackson incident]" does not appear to have been the sworn testimony in this case and it is most assuredly not from Tr. 721 cited in footnote 38.

   n3 We assume for our discussion here that the stricken portion of the record (Tr. 721) had not been so treated.

 

   V."The Little Rock Crisis" Matter

 

   The accuracy of the dissent is questionable, when at page 19 the dissenters castigate the majority's conclusion that the charge concerning the "Little Rock Crisis" program was not substantiated.The dissenters state at page 19 that Governor Coleman, Senator Eastland, and Congressman John Bell Williams presented their views of the disturbance, "testimony of church witnesses alleged that the officials uniformly backed segregation and blamed the outbreak of violence on the Little Rock Negroes * * * [and that] * * * this testimony was not contradicted." The dissent cites "See, e.g., Record, 677-679." The cited material does not support the dissenters version of the incident.From the record we find only that the witness saw the named persons on a discussion program about Little Rock, that there were no Negroes, no persons to represent the Negro viewpoint, no persons who favored "segregation" [sic], and no persons who favored obeying Federal courts.n4 Even were we to include intervenors exhibit 104 for proof of the matters recited therein (and we did not) n5, there is no basis whatsoever for the statement of the dissenting Commissioners about the participants in the program blaming the Little Rock violence on Negroes.

   n4 While the characterization of the viewpoints of the panelists was stricken, we shall consider it reinstated for the purpose of this discussion.

   n5 We accepted this exhibit only for the purpose of showing that WLBT had been notified of complaints, and not for the truth of the matters asserted therein -- Commission Decision, par. 12.

 

VI.Summary of Testimony of Intervenors' Witnesses Re the Citizens Council Forum

 

   We were concerned by the dissenters' statement n6 criticizing the examiner's acceptance of the testimony of WLBT's Fred Beard that the carriage of the White Citizens Council forum was not designed to promote segregationist views despite "the contrary testimony of church witnesses (and in preference to general knowledge and the declared objectives of the White Citizens Council movement in the Deep South). n40" Footnote 40 is merely a reference to the Initial Decision findings complained of and is not a citation of the church's witnesses[*477] and the declared objectives of the White Citizens Council.Nevertheless, we reviewed the church's proposed findings and conclusions on this point in order to weigh the dissenters' criticism of the examiner's "preference" for Beard's testimony.n7 Proposed finding 53 would have had the examiner find, "[Fred Beard] reaffirmed his approval of that organization * * * the primary purpose of which was described as '* * * to maintain segregation in every possible way in Mississippi' * * *" What the church's proposed findings omitted, however, was the fact that the purpose was described, not by Fred Beard as might appear from the proposed finding, but by the president of Tougaloo College.Proposed finding 54 quoted "WLBT's expert witness, Mrs. Hazel Brannon Smith [italic supplied]," but omitted the fact that she had been conceded "expert" for the purpose of answering only one question n8 unrelated to the Citizens Council programs.Mrs. Smith, in her characterization of the Citizens Council, testified as a non-expert:

   n6 Dissent, p. 15.

   n7 Intervenors' Proposed Findings and Conclusions, 53-56.

   n8 Tr. 1244/22-1245/11.

   * * * the line of the White Citizens Council which promised the people of Mississippi you don't have to integrate and just say you wouldn't integrate and you don't have to integrate.That was the line put out by the Council.That was the line heard on the Citizens Council program on WLBT * * *.n9

   n9 Tr. 1253.

This, then, appears to be the sum total of the testimony of "church witnesses * * * general knowledge * * * and declared objectives of the White Citizens Council."

   To the contrary was the sworn testimony of Fred Beard concerning the Citizens Council and the station policy in refusing to carry segregation/integration programs on the council's behalf.The testimony of Beard outweighed the contrary testimony and the examiner's finding and the Commission's affirmance was reasonable and proper.

 

VII.The Dissenters "Findings" of Misrepresentations by the Licensee

 

   In our majority opinion we concurred in the examiner's conclusion, "that there is no evidence in the record which would indicate that WLBT has misrepresented either to the public or to us its programming on the issue of racial discrimination or that it has acted in bad faith respecting the presentation of such programming." We affirm that conclusion.Each of the supposed specific incidents of misrepresentation raised in the dissent (pp. 37-41) will be considered, in the order in which they are presented therein, and will be shown to be unfounded.

   In regard to WLBT's alleged misrepresentation in its communication to the Commission regarding its 1957 program, the "Little Rock Crisis," the record before us indicates that on December 8, 1955 (intervenors' exhibit 102), WLBT by letter represented to the Commission that while "equal time has always been made available to both sides of any controversial issue, * * * with reference to NAACP from a local and national level and the White Citizens Council and other prosegregation groups, we have not sold or permitted and group to appear on our * * * television station." We construe this letter as[*478]pertaining to the station's policy not to provide time to either the NAACP or the Citizens Council for the presentation of the racial issue, and not as a representation that the station "did not permit the issue of racial integration to be aired at all." Subsequently, by letter dated July 17, 1958 (intervenors' exhibit 109), to which the dissent apparently refers, WLBT stated that it was its "policy to present both sides of any and all controversial issues within the limitations as prescribed by your rules." We find no indication therein, as claimed in the dissent, that WLBT asserted in 1955 that it was not its policy to air the racial integration issue or that it repeated such an assertion in 1958.The dissenters do not cite where this supposed representation was repeated in 1963.n10 Insofar as the 1957 "Little Rock" program, which the dissent characterizes as a violation of WLBT's alleged representation of its programming policy not to air the racial issue, is concerned, the station clearly stated to us at that time (1957) that it "did not consider the matters presented as being controversial but a report from our duly elected officials to the people of Mississippi," and that "if we are wrong in regarding these reports by our duly elected officials of the State as being non-controversial, we would appreciate your advising us, since it is our purpose at all times to adhere to the rules of the Commission" (intervenors' exhibit 109).We have found no evidence of misrepresentation of its supposed past policy in its presentation of the Little Rock program, or in its communication to us regarding the program.

   n10 We assume, however, that they refer to WLBT's statement contained in its letter of Oct. 29, 1963 (stipulation 1, No. 17), that it is not the station's policy "to present local programs dealing with segregation [italic supplied] * * *." As we read this letter, we believe the extent of that representation was limited to full and complete programs (as opposed to spot announcements or editorials) and that WLBT did not represent therein, as claimed in the dissent, that "it did not, as a matter of policy, permit the issue of racial integration to be aired at all."

   Our examination of the second incident of alleged misrepresentation discussed by the dissent, pertaining to the Reverend Robert L.T. Smith's 1962 political campaign, leads us to a similar conclusion.It is true that WLBT wrote to the Commission on February 1, 1962, that it had not refused to sell Mr. Smith time (stipulation 1, No. 4).The examiner's findings, fully supported by the record and adopted by us, were that while the Reverend Mr. Smith's specific time request was refused, n11 he was offered time during the 2 months immediately before the election and spot announcements during January 1962 (Initial Decision, finding 65).Our colleagues next cite an April 20, 1962, letter from WLBT which seemingly contradicts the representation made in its previous letter by stating "our decision not to sell time * * *" (stipulation 1, No. 11).On the face of these two letters there appears to be a misrepresentation to the Commission if one assumes that the same "decision" is referred to.However, the dissent has conveniently overlooked stipulation 1, items 5 through 10 which chronologically detail the correspondence on this matter and which clearly demonstrate that while WLBT originally stated in its letter of February 1, 1962 (stipulation 1, No. 4), that it had offered time to the Reverend Mr. Smith, it subsequently withdrew that offer and promptly notified the Commission of this fact by letter dated April[*479]12, 1962 (stipulation 1, No. 8).The April 12, 1962, letter reversing its previous decision to sell time is the "decision not to sell time" referred to in WLBT's April 20 letter cited by the dissent, and, in fact there were no contradictory statements to the Commission.The examiner's findings, adopted by us, were complete on this matter and there was no element of misrepresentation in this series of communications.

   n11 Reasons were, inter alia, that his request was made only two days in advance and would have necessarily preempted one-half of a popular national program, stipulation 1, No. 4.

   The third supposed incident of misrepresentation to the Commission which the dissent mentions is a clear misunderstanding of the record by the dissenters. WLBT represented to Commission investigators that editorializing ceased on September 21, 1962, but that programming logs for subsequent days indicate that editorials were in fact programmed (intervenors' exhibit 31).However, the examiner found that no editorials were actually broadcast, and noted a conflict in the record (Initial Decision finding 93).n12 Not only did Beard testify, as the dissent states, that the logs were in error but he also categorically denied that any editorials were broadcast.He stated: "I can assure you that no editorials were run.You have not found any editorials, nobody has heard any" (Tr. 846).We believe that the examiner made a correct finding concerning the editorials in question (since no witness testified that they were broadcast and since intervenors' exhibit 31, the only evidence that the editorials were broadcast, was brought into serious question at the hearing.(See Tr. 846-847; 1459-1463)).n13 Accordingly, we had no reasonable basis on which to predicate a conclusion that WLBT had misrepresented cessation of editorial broadcasting after September 21, 1962.

   n12 The examiner pointed out that during this period there was "considerable confusion at this station because there were more than 75 visiting television newsmen using the facilities of WLBT to send stories * * *;" that foreign newsmen used the facilities to send stories abroad; that this outside activity was in addition to WLBT's activity; and "WLBT had only one control room * * *."

   n13 "Business records" carry only a rebuttable presumption of accuracy which must fall before sworn, and uncontroverted countervailing testimony.

   Similarly, the fourth incident of claimed misrepresentation raised by the dissent misreads the record.The Commission's letter of July 25, 1963 (stipulation 1, No. 16), invited comment by WLBT on many matters raised by the Commission's investigation.WLBT replied on October 29, 1963 (stipulation 1, No. 17), to the questions raised by the Commission regarding the "Comment" program (pp. 18 through 24, of the WLBT reply), WLBT's editorializing policy (pp. 12 through 17, Oct. 29, 1963, letter), and the Citizens Council spot announcements (pp. 17 through 18 of the WLBT reply).In the passage of the reply quoted in the dissent (text at footnote 107), WLBT was not referring to the three previously listed items, to which WLBT had devoted considerable attention in other parts of the same letter, but was referring only to WLBT's policy regarding "local programs" (as contrasted to separate and distinctly enumerated policies for editorials, for spot announcements, and for the "Comment " program).The dissent attempts to link together and analogize separate statements to construct a misrepresentation which is unwarranted and in derogation of the clear text of the record.

   We believe that the alleged misrepresentation in WLBT's 1964 renewal application may be clarified by quoting verbatim the record which purports to show the misrepresentation.In its 1964 renewal[*480]application, WLBT stated, in discussing its controversial issue programming:

   "Today in Jackson" also presents material from time to time that can be, or is, considered controversial by some groups.When this occurs every effort is made to ascertain that the opposing group [italic supplied] is notified and understands that if they do disagree, equal time will be granted so that they might reply in like kind (Lamar application to renew license, exhibit No. 5, policy on public issues). When compared with the hearing transcript cited by the dissent to demonstrate the misrepresentation, we can find no misrepresentation because the matter in the hearing transcript pertains to an entirely different subject.Mr. Miller, counsel for Lamar, stated regarding editorials:

   Mr. Examiner, I think Mr. Moore misconceives the law on the subject, because obviously, as Mr. Kehoe points out, it would be an impossibility for a station to advise and invite members of the public individually.[Italic supplied.] They don't even know which ones specifically may agree or disagree with them.

   The point, as I understand it, when you editorialize you may state from time to time -- you identify it as an editorial and you may have a policy to make time available for opposing viewpoints * * *" (Tr. 374-75). The dissenters take a statement of counsel regarding the general subject of editorializing and the duties of a licensee thereon and equate it with a statement regarding the "Today in Jackson" program, an entirely different matter, to arrive at a misrepresentation to the Commission.

   The last purported incident of "WLBT's willingness to mislead the Commission" involved no element of misrepresentation whatsoever.As recognized by Commissioner Cox in his 1965 dissent to the transfer of control (1 FCC 2d 1484, 6 R.R. 2d 308), the full details of the option arrangement between Lamar Life Insurance Co. and the stockholders of Lamar Life Broadcasting Co., and of the loans between the two entities were fully disclosed to the Commission.

   The purported incidents of misrepresentation to the public referred to in the dissent at pages 39-40 are also unsupportable and unreasonable.The dissent raises examples of WLBT's purported misrepresentation to the public on the racial issue and "bad faith reportage by WLBT in its news coverage of highly controversial issues." The cited examples merit further scrutiny.With regard to the discrepancy between WLBT's news coverage of one incident in a civil rights demonstration (concerning the alleged beating of a demonstrator by police) and what actually transpired in that one incident, the facts disclosed may not reasonably be construed as a misrepresentation to the public on the racial issue or as evidence of bad faith in the station's presentation of the news.Granting accuracy of Dr. King's testimony, we consider this incident as evidence that the news coverage may not have been completely accurate at all times, and that some inaccuracy certainly is understandable during this unsettled period in Mississippi.

   The dissent cites as another bad faith misrepresentation the fact that a WLBT news program stated "that Mrs. King had been arrested for public cursing and disorderly conduct, when, in fact, Mrs. King[*481] had not been arrested and was not even at the scene of the demonstration."

   Dr. King's testimony was as follows:

   A.There was a summary [over WLBT] of the demonstration.There were pictures of Tougaloo students and others, probably 100 or 200, probably 100 demonstrators, the police * * * loading them onto the trucks and then there was a statement that some of the bystanders were also arrested.

   These people included Mrs. Janet King, who was arrested for disorderly conduct and cursing policemen.

   Q.Would you identify her?

   A.Mrs. Janet King was my wife.

   Q.Was she there that afternoon?

   A.She was inside the house [immediately adjacent to where the demonstration took place and where many bystanders were].She was not arrested * * *.

   The only white woman who was arrested was Miss Lois Chaffee who was accused of public cursing.I assume that this is what they meant by naming my wife (Tr. 713-14).

Mrs. King, contrary to what the dissent states, was at the scene of the demonstration, where another white woman was arrested.Thus, a misidentification of a party arrested, explainable in light of the confusion of the day, becomes for the dissenters a bad faith misrepresentation on the racial issue.n14

   n14 Cf.Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) (The General Walker case.)

   The third claimed instance of misrepresentation to the public is also fallacious.Although Dr. King was not arrested for leading a near riotous demonstration following Mr. Evers' funeral, he was arrested on that same day, on the very afternoon that the demonstration occurred, but on a charge pertaining to an incident two days earlier (Tr. 719).In these circumstances, a conclusion that WLBT was chargeable with bad faith misrepresentations to the public on the racial issue would be improper and unfair. 

VIII.Applicability of the Fairness Doctrine to a Possibly Nonpartisan, Non-controversial Program

 

   Paragraph 14 of the majority opinion, which is reproduced on page 19 of the dissent, is hardly the mystery the dissenters would make it."Partisan" means "adherent to a party or faction, especially unreasoningly." n15 Such a program, if presented by one of our licensees, would, of course, have brought the fairness doctrine into play, providing the subject, party or faction were of sufficient importance.We did not find any record support for the contention that the program in question was "partisan." As to the effect upon the fairness doctrine of its being a report by elected officials, surely it is possible to envision a strictly factual report by a city commissioner on progress in building a sewage disposal plant (not the possibly controversial question of whether one should be built) which could in no manner activate the fairness doctrine.Our statement said that if the report had been only (i.e., not controversial) a report by elected officials, the doctrine would not come into play.n16 But if the city commissioner were to seek to telecast views[*482] of a controversial nature (even "partisan" ones), his official status would not immunize him from the fairness doctrine.Telecasts of a partisan nature by public officials are subject to the fairness doctrine.WLBT did not claim that the telecast was immunce because it was by elected officials; it claimed that it was immune because it was by elected officials who were nonpartisan.

   n15 "Webster's New Collegiate Dictionary," second edition, Cambridge,Mass., 1949.

   n16 Consider, for example, the recent appearance of Commissioner Washington (an appointed official) in Washington,D.C., urging all citizens of the District of Columbia to obey the curfew.Would the dissenters have the stations seek out and telecast a person urging rioters, arsonists, and looters to remain on the streets in defiance of Commissioner Washington?

   The question of whether the program was partisan or controversial was never resolved despite our providing a forum in which it might have been aired.The intervenors might have stated plainly to the examiner through a witness (who claimed to have seen and heard the telecast) what was said to the best of his recollection.Instead, all the intervenors offered was testimony as to who was not on the panel via a witness's characterization -- a characterization which was quire properly stricken.

 

IX.Inconsistency Between Our 1965 Short-Term Renewal and Our Present Action

 

   Contrary to the assertion at page 3 of the dissent there is no inconsistency between our short-term renewal upon conditions in 1965 and our present action. The dissenters recitation that we "found WLBT's performance sufficiently disturbing" in 1965 is erroneous.We found the charges sufficiently disturbing to warrant our 1965 action.A Government agency makes no finding of guilt when, as a result of complaints, it determines to scrutinize with more than routine attention the activities of an entity subject to its regulatory jurisdiction. The agency may even go so far as to communicate the complaints to the alleged offender and tell it, in effect, that it will be inspected in 1 year (as we told WLBT).At that time if nothing be wrong the alleged offender has nothing to fear.If, in 1965 at the time of the short-term renewal WLBT had been complying with all of the conditions we laid down (and we had only unproved and essentially controverted allegations and charges that it was not), we would have imposed no additional burden and made no finding.

 

   X.The Effect of Pre-1964 Versus Post-1964 WLBT Programming

 

   The dissenters' concern with the weight and relevance of pre-1964 and post-1964 programming n17 looms too large in their reasoning.If, by the quotation n18 from the Initial Decision, conclusion 1, "the renewal period is June 1, 1964, to May 31, 1967," the dissenters mean to establish that the examiner (whose hearing began on May 1, 1967) thought he was to consider only 1964-67 programming, we can only dismiss the contention as farfetched.The examiner's sentence next following that quoted shows that he clearly recognized the renewal application was filed on March 3, 1964, and a license in future for 1964-67 was under consideration.The exigencies of the hearing process regrettably delayed the start of the hearing until almost the expiration of the normal license period.

   n17 Dissent, p. 5, et seq.

   n18 Dissent, p. 7.

    [*483]Finally, we agree with our colleagues that the court declined to pass upon the relevance of post-1964 performance, n19 but we disagree with the contention that we transgressed a standard which was never established.

   n19 Dissent, p. 5.

 

   XI.The Freedom Bookstore Matter

 

   The dissenters have charged that evidentiary testimony was offered on numerous instances by witnesses for the intervenors with respect to the Freedom Bookstore and that the examiner rejected such testimony.Our conclusion with respect to the Freedom Bookstore was that there was no probative evidence as to the anti-civil rights prosegregation nature of the organization.But assuming the prosegregation nature was proven in the hearing, we believed that the carriage of announcements recommending and endorsing the purposes of the bookstore would have constituted a violation of the fairness doctrine.In this vein, we carefully examined the record citations the intervenors cited in their exception 143 as rulings excluding the introduction of such evidence.

   The intervenors' exception to the examiner's ruling at Tr. 435 pertained to the examiner's rejection of intervenors' exhibit 18.We reviewed this exhibit, although we believed it was properly rejected, n20 and found it completely lacking in probative value as to the nature of the bookstore.Our further review of the record indicated that Dr. Beittel neither testified nor attempted to testify directly on the subject of the Freedom Bookstore.The dissent errs when it states that "the examiner rejected his attempt to testify about the bookstore" (dissent, p. 22, text at footnote 55).n21 Accordingly, our evaluation of the record indicated that no probative evidence regarding the Freedom Bookstore was even offered by the intervenors at this point in the hearing.

   n20 The exhibit was rejected, not because it partially pertained to the Freedom Bookstore but because "the matters that Mr. Moore seeks to put into evidence can be brought in if he so desires by competent testimony.He can bring witnesses in here to testify about the spot announcements but a generalization like this embodies too much hearsay and the document will not be received" (Tr. 435).

   n21 Dr. Beittel only attempted to testify about the Citizens Council which he did not attempt to link to the Freedom Bookstore.Indeed, the only reference to the nature of the bookstore is a conclusionary statement of counsel for the intervenors, not testimony because he was not under oath (see also Canon 19, ABA Canons of Ethics) to the effect that evidence of the Freedom Bookstore was material because it was "a bookstore which represents an extreme rightwing point of view" (Tr. 434).

   Mr. McRaney was questioned about the bookstore and such questioning was ruled improper (Tr. 1402).But we found no offer of proof therein as to what Mr. McRaney would have testified and upon which we could base a conclusion that he should have been allowed to testify.The testimony at Tr. 1605 pertains to the introduction of intervenors' exhibit 49 (to the rejection of which the intervenors failed to except) and which our examination revealed was not probative of the nature of the bookstore or the nature of the announcements made for the bookstore.Nor was the testimony of the witness at Tr. 1605.The examiner's ruling at Tr. 1615-1616 rejected intervenors' exhibit 50, which we considered in reaching our decision and which we found was not probative of anything other than that announcements were made for the bookstore.

    [*484]Thus, we determined that the examiner's rulings to which exceptions were taken in three instances did not preclude the introduction of any meaningful evidence into the record.In light of this, and after careful examination of the record citations in the intervenors' exception 143 pertaining to the Freedom Bookstore, we could reach no conclusion other than that there was no evidence as to the alleged anti-civil rights, prosegregation character of the bookstore.

 

   CONCLUSION

 

   The more we study the voluminous record in this case, the greater our certainty and conviction of the propriety of our conclusion that the WLBT renewal application should be granted.WLBT has not been shown by this extensive record to have violated the Commission's and the public's trust.The dissent does not withstand reasoned analysis.To deny renewal of this license on the basis of the dissent, stripped of its inaccuracies, errors, and misinterpretations, would indeed have been a gross miscarriage of justice and an abuse of agency discretion.

 


[In re application of Lamar Life Broadcasting Co.; docket No. 16663]

 

 

STATEMENT BY COMMISSIONER ROBERT T. BARTLEY

  

I concurred in the result of this Decision.

   The nature of the Dissenting Opinion is such that I feel compelled to add my personal comments on it.

   The Dissenting Opinion, stripped of its vituperations and self-serving characterizations, adds up to one thing: The dissenters try to build a case on bare and unsupported allegations by the intervenors and, then, appear to question the motives of the Commission majority because they did not succumb to the same error.

   This case boils down to the following essentials: The intervenors made allegations against WLBT-TV and requested that its license not be renewed.An evidentiary hearing was held in which the intervenors were offered an opportunity to substantiate their allegations.The hearing examiner held that the intervenors failed to substantiate their allegations.The Broadcast Bureau, which was a party to the proceeding, also found that the intervenors failed to substantiate their allegations.The Commission majority found that the intervenors failed to substantiate their allegations.

   Thus, the allegations, if true, might well have been grounds for denying the renewal.However, the allegations were not substantiated, were not considered true, and were not, therefore, grounds for denying the renewal as requested by the intervenors.

 


FURTHER STATEMENT OF COMMISSIONERS KENNETH A. COX AND NICHOLAS JOHNSON

  

The majority has issued a further statement making various criticisms of our dissenting opinion in the WLBT case.We do not wish to prolong the Commission's public dispute about a matter that would[*485]most appropriately have been disposed of in our original opinions -- exchanged sufficiently in advance of release to make response and revision possible at that time. Nonetheless, we cannot let this further statement go without some explanation.

   The short of the matter is that we find nothing in these new criticisms which alters our grave dissatisfaction with the Commission's procedures and results in this case. Nor is there anything in the majority's new exposition of its position which changes our conclusion: That the Commission in this case has renewed the license of a station which systematically suppressed the expression of integrationist views, which systematically ignored the 47 percent of the population of its coverage area who happen to be black, and which made numerous misrepresentations to the Commission and to the public about these improper policies.

   The court has already called for the record on its own motion and will ultimately resolve the law of this case without the need for further comment by us.* To the extent new matters raised in the majority's "further statement" warrant our response as to factual disputes, we have prepared an analytical appendix to be included in the printed report of these opinions.

 

   * The court of appeals retained jurisdiction in this matter subsequent to the 1965 appeal by petitioners. Office of Communication of United Church of Christ v. FCC, 359 F. 2d 994 (D.C. Cir. 1966).

 

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