RELATING TO APPLICATIONS MUTUALLY EXCLUSIVE THEREWITH.
Docket No. 18495
FEDERAL COMMUNICATIONS COMMISSION
16 F.C.C.2d 858 (1969)
RELEASE-NUMBER: FCC 69-253
March 19, 1969 Adopted
NOTICE OF PROPOSED RULEMAKING
BY THE COMMISSION: COMMISSIONER JOHNSON CONCURRING AND ISSUING A STATEMENT.
[*858] 1. Delays which interfere with action on broadcast license renewal applications by the time the current license term expires have in numerous cases resulted from the fact that section 1.580 of the Commission's rules requires that public notice of license renewal applications -- as in the case of other types of broadcast applications -- be published and broadcast after the renewal application is filed. Verification of the giving of such public notice must subsequently be filed with the Commission before it acts on the application.
2. This sequence is not necessary for license renewal applications, which are regularly required under section 1.539(a) to be filed no later than 90 days before the current license term expires. It would make for more expeditious processing and timely action on license renewal applications if the required public notice were given during the 6-week period before the application is filed, and if verification of such public notice were filed with the application. We propose to so amend the rules, in the manner set out in the appended changes to paragraphs (c), (d), and (f) of section 1.580, and new paragraph (m) in section 1.580. n1
n1 Stations whose licenses expire Aug. 1, 1969 (renewal applications due May 1), may give public notice in accordance with the proposed new rule; proof of public notice submitted with the application will be deemed to fulfill the notice requirement of present sec. 1.580.
3. It is desirable that we also amend the procedural rules governing the filing of applications for new broadcast stations and for modification of construction permits and licenses of existing broadcast stations which are mutually exclusive with applications for license renewal. The orderly and timely processing of such renewal applications requires that there be a date certain, prior to the expiration of the current license term, by which the Commission and the license renewal applicant may be informed concerning the filing of mutually exclusive applications.
[*859] 4. Taking into account the normal review of license renewal applications during the 90-day period preceding the expiration of current license terms, it would facilitate the processing of both renewal applications and any other applications mutually exclusive therewith if the latter are tendered for filing, in substantially complete form, 2 weeks before the expiration of the current license term. This would, in the case of timely filed renewal applications, enable the Commission to complete their processing and, where they are otherwise in order, to grant renewals of license before 1.227, 1.516, 1.571, and 1.591 so the current license term expires. It would also provide interested persons opportunity to complete and file mutually exclusive applications up to 2 1/2 months after license renewal applications are required to be filed (they are required to be filed 90 days before license expiration). The appended amendments to sections provide. The appended amendment to section 1.516(e) provides for a similar interval in the case of late-filed license renewal applications.
5. This change should cause no hardship since persons interested in filing applications mutually exclusive with license renewal applications have ample notice, in our rules, of the fixed dates when all broadcast station licenses in given geographical areas regularly expire, and of the requirement for the filing of license renewal applications 90 days before the expiration of the current license term. The established practice of the cutoff of applications mutually exclusive with applications for standard broadcast stations within 30 days after the Commission gives public notice of the cutoff date similarly enables the Commission to process such applications in an orderly manner.
6. Similar considerations warrant a simultaneous deadline for filing petitions to deny license renewal applications. It is proposed in the appended amendment to section 1.580(i).
7. Authority for the adoption of the amendments in the appendix hereto is contained in sections 4(i), 303(f), and 307 of the Communications Act of 1934, as amended.
8. Pursuant to applicable procedures set forth in section 1.415 of the Commission's rules, interested persons may file comments on or before April 11, 1969, and reply comments on or before April 18, 1969. All relevant and timely comments and reply comments will be considered by the Commission before final action is taken in this proceeding. In reaching the decision in this proceeding, the Commission may also take into account other relevant information before it, in addition to the specific comments invited by this notice.
9. In accordance with the provisions of section 1.419 of the rules an original and 14 copies of all comments, reply comments, pleadings, briefs, and other documents shall be furnished the Commission.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary. scheduling of staff and Commission
I concur in the issuance of this proposed rule, designed to establish a cutoff for competing applications for stations' licenses at renewal time. The cutoff proposed would be 75 days after renewal applications are due to be filed. The aim of the cutoff is to provide for administrative orderliness and to protect licensees from last-minute competing applications. This is a real problem, and today's proposal is at least worthy of public consideration and comment. I have some concern about the details, however, which it may be useful to voice at this time.
At the present time, only AM new applications are subject to a cutoff procedure. 47 CFR sec. 1.571 (1968). Thus, new FM and TV applications are held without acting as long as the Commission wishes, and during that time the applicants are vulnerable to competing applications. (Of course, new applications today are generally for relatively unprofitable facilities at the margin, with their attendant risks for success and profit. The most profitable properties were applied for years ago and are already in operation.)
license renewal applications by present licensees the situation is similar to
that for new FM and TV applications.
That is, there are no cutoff procedures, and if the renewal is held up
by the Commission for any reason competing applications can be filed. All renewals in a given State (AM and FM and
TV stations) come up at the same time.
The rules provide that renewal applications are supposed to be filed 90
days before a given station is due for renewal. (The relevant [*863] rules, with dates, are attached as an
appendix to this opinion.) The applications are processed by the staff, on
delegated authority from the Commission, and any time during the month prior to
the day the stations are due for renewal, the staff reports to the
Commissioners what stations will not be renewed, and what stations propose low
percentages of news (under 5 percent), public affairs (under 1 percent), and
all other (nonentertainment) programming (under 5 percent). Almost all licenses are renewed by the staff
under delegated authority. License renewal
applications that have special problems may have their renewals deferred; i.e.,
the renewal is not granted by the time the license period runs out. For example, some renewals for
There are a number of issues to be considered in this rulemaking. First, there has been an unfortunate confusion over the filing of competing applications at renewal time. There has been talk of the need to "protect" existing licensees. There have been suggestions that competing applications are somehow equivalent to "strike" n1 applications, and that it is unwise for the Commission to entertain them. This attitude is directly contrary to the Communications Act -- which contemplates the filing of competing applications -- and the express provisions which preclude the acquisition of property rights in a frequency by broadcast licensees. n2 The act also provides that Commission evaluation of renewals shall employ substantially the same standards as if the applications were for new facilities. n3 Commission regulations provide for surveys of local citizens and publicly disseminated notices of forthcoming renewal processes. n4 The right of the public to participate in Commission proceedings on applications should by now be beyond dispute. n5
n1 "Strike" applications are applications which the Commission has concluded were filed for reasons other than the desire to operate a station, e.g., to frustrate early rendition of competing service. The penalties for filing such an application are severe. See, e.g., Western North Carolina Broadcasters, Inc., F.C.C. 66-1147 (1966), F.C.C. 67-547, 8 F.C.C. 2d 126 (1967).
n2 47 U.S.C. sec. 309(h) (1964); FCC form No. 352, 352B.
n3 47 U.S.C. secs. 307, 308 (1964); WHDH, Inc., F.C.C. 69-82. See also S. Rept. No. 44, 82d Cong., 1st sess. to accompany S. 658 reprinted in P & F Radio Reg. Current Service I, 10:271 at 278 (1957); H. Rept. No. 1750, 82d Cong. 2d sess. to accompany S. 658 reprinted in P & F Radio Reg. Current Service I, 10:301 at 307; Community Broadcasting Corp. v. FCC, 363 F. 2d 717, 7 P & F Radio Reg. 2d 2085 at footnote 5 and accompanying text (D.C. Cir. 1966).
n4 47 CFR secs. 1.580, 1.594 (1968); Ascertainment of Community Needs by Broadcast Applicants, F.C.C. 68-847 (1968).
n5 Office of Communication of United Church of Christ v. FCC, 359 F. 2d 994 (D.C. Cir. 1966); Joseph v. FCC, 13 P & F Radio Reg. 2d 2116 (D.C. Cir. 1968).
Secondly, the process by which FCC action on a renewal or new application is deferred demonstrates the Commission's lack of orderly management procedures and clear delegations of authority. The Commission has established no deadlines for action on broadcast applications by the staff; and there is no useful management information reporting system that would enable Commissioners or staff to keep track of progress in the processing of applications. Finally, the decision to defer action -- which is, in fact, an administrative penalty -- is typically made at the staff level.
[*864] Thirdly, the Commission has as much responsibility (if not more) to protect the public as well as to protect its licensee-clientele. The proposed rules would render impossible the filing of competing renewal applications or petitions to deny 75 days after the renewal applications were filed (or 75 days after the 90-day prerenewal period begins to run, whichever is longer) -- 15 days before the public believes the license to expire. It is this 15-day, last-minute period when lawyers often end up filing pleadings in many of our proceedings.
And this cutoff date excludes one of the most important indicators the public has that there are problems with a particular renewal application -- the placing of that application on deferred status. Deferred status sometimes indicates substantial problems with the application -- precisely the kind of situation where public interest considerations may favor an alternative applicant. It is these situations where the public interest benefits of competing applications may be greatest -- the benefits of a more desirable custodianship for the public trust in the next 3 years. It is for these reasons that I am not wdded to the timing of the cutoff proposed here. For example, there might be greater merit -- and equal equitable protection -- in a cutoff 6 weeks after a renewal application is put on deferred status. And the Commission might even want to announce publicly what renewal applications are in deferred status.
All would acknowledge that this Commission has an obligation to its licensees to minimize the burdens upon them of strike applications, harassment, or similar unwarranted pressure and strife. At the same time, hopefully all fairminded people would grant that this Commission's first responsibility is to serve the public, and its often-unsophisticated private guardians who appear before us as citizen groups with a bona fide interest in our proceedings.
An arbitrary cutoff may or may not be an appropriate means of protecting legitimate licensee interests. But I am concerned that the proposal we put forth today may be an unnecessarily harsh and unwarranted protective device. I would welcome any comments along these lines regarding the details of this proposal, and alternatives that might be advanced.
In KSTP, Inc. (KOB), F.C.C. 61-981, released August 4, 1961, 22 P & F Radio Reg. 35, the Commission stated that an application for renewal of a broadcast license must be designated for a comparative hearing with any other pending mutually exclusive applications, citing a number of earlier Commission actions. The Commission denied that the 1952 amendment of section 307(d) of the Act required a different result, stating:
301 of the Communications Act provides that no license shall be construed to
create any right beyond the terms, conditions and periods of the license; while
section 304 requires that a prospective licensee sign a waiver of any claim to
the use of a particular frequency because of the previous use of the same,
before such license may be granted.
Thus, it appears clear that the act intends no person to have anything
in the nature of a property right as a result of the grant of a license; that
broadcast licenses are limited to a maximum of 3 years duration and may be
revoked at any time for good cause shown; that before such license can be
renewed, it must be determined, pursuant to section 307(d) of the act, that the
public interest, convenience, and necessity
[*865] would be served thereby
and that if, after a hearing on such application for renewal, said finding
cannot be made, the frequency presently occupied remains free for a new
assignment to a new licensee in the interest of the listening public. See Federal Communications Commission v.
Sanders Brothers Radio Station, 309
Section 301 of the Communications Act provides in part:
It is the purpose of this act, among other things, to maintain the control of the United States over all the channels of interstate and foreign radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license.
In F.C.C. v. Sanders Brothers Radio Station, 309 U.S. 470, 9 P & F Radio Reg. 2008 (1940), at 2011, the Supreme Court stated:
The policy of the act is clear that no person is to have anything in the nature of a property right as a result of the granting of a license. Licenses are limited to a maximum of 3 year's duration, may be revoked, and need not be renewed. Thus, the channels presently occupied remain free for a new assignment to another licensee in the interest of the listening public.
In Hearst Radio, Inc. (WBAL), 6 P & F Radio Reg. 994 (1951), the Commission stated:
* * * in a comparative proceeding of the type before us, we must give serious consideration to the high degree of probability of continuation of existing desirable performance as against paper proposals which, on the basis of the record before us, we are not convinced can be fulfilled. However, the foregoing is not to be construed in any way as giving a licensee property rights to the use of a frequency -- or any other rights or advantages over a competing applicant for the facilities except such possible favorable consideration as may flow from the inference that demonstrated ability to render a service in the public interest is likely to be carried over into a subsequent license term.
1. Section 1.227 is amended by inserting the words "except as provided in subparagraph (5) of this paragraph," in subparagraph (b) (1) after the opening phrase "In broadcast cases," and by adding new subparagraph (b) (5). The amended portions of section 1.227 read as follows:
Section 1.227 Consolidations.
* * *
(b) (1) In broadcast cases, except as provided in subparagraph (5) of this paragraph, no application will be consolidated for hearing with a previously filed application or applications unless such application, or such application as amended, if amended so as to require a new file number, is substantially complete and tendered for filing by whichever date is earlier:
(i) The close of business on the day preceding the day the previously filed application or one of the previously filed applications is designated for hearing; or (ii) the close of business on the day preceding the day designated by public notice published in the Federal Register as the day any one of the previously filed applications is available and ready for processing.
NOTE. -- Subdivision (ii) of this subparagraph applies only to standard broadcast applications for new stations or for major changes in the facilities of authorized stations. See also section 1.571 (c) and (h) and section 1.591(a).
* * *
(5) An application which is mutually exclusive with an application for renewal of license of a broadcast station will be designated for comparative hearing with such license renewal application if it is substantially complete and tendered for filing no later than the date prescribed in section 1.516(e).
2. Section 1.516 is amended by adding new paragraph (e), reading as follows:
Section 1.516 Specification of facilities.
* * *
(e) An application for a construction permit for a new broadcast station or for modification of construction permit or license of a previously authorized broadcast station will not be accepted for filing if it is mutually exclusive with an application for renewal of license of an existing broadcast station and is tendered for filing after the 15th day of the last full calendar month of the expiring license term: Provided, That if the license renewal application is not timely filed as prescribed in section 1.539(a), the deadline for filing applications mutually exclusive therewith is the 75th day after the Commission gives public notice that it has accepted the late-filed renewal application for filing; And provided further, That if any deadline prescribed in this subparagraph falls on a nonbusiness day, the cutoff shall be the close of business of the first full business day thereafter.
NOTE. -- The dates when the licenses of standard, FM, noncommercial FM, television and TV translator broadcast stations regularly expire are listed in sections 73.34, 73.218, 73.518, 73.630, and 74.15, respectively.
3. Section 1.571(c) is amended by changing the final period to a semicolon, and adding the following proviso:
Section 1.571 Processing of standard broadcasting applications.
* * *
(c) * * *
Provided, That applications which are mutually exclusive with applications for renewal of license of standard broadcast stations will not be so listed in such a public notice, but will be treated as available and ready for processing upon timely filing as provided in section 1.516(e).
* * *
4. Section 1.580 is amended by changing the caption, changing the final period of paragraph (c) to a colon and adding an additional proviso to paragraph (c), similarly adding a proviso to the introductory portion of paragraph (d), revising the introductory portion of paragraph (f), revoking subparagraph (f) (9), revising the second proviso to paragraph (i), reserving paragraph (1) and introducing new paragraph (m). The amended portions of section 1.580 read as follows:
Section 1.580 Local notice of the filing of broadcast applications, and timely filing of petitions to deny them.
* * *
(c) * * *
And provided further, That in the case of applications for the renewal of station licensees, but not amendments thereof, notice shall be published prior to filing as prescribed in paragraph (m) of this section, instead of after filing, as prescribed in this paragraph.
(d) If the application seeks modification, assignment, transfer, or renewal of an operating broadcast station (except for applications for stations in the international broadcast service and for television translator stations), the applicant shall, in addition to publishing a notice of such filing as provided in paragraph (c) of this section, cause the same notice to be broadcast over that station at least once daily on 4 days in the second week immediately following the tendering for filing of such application, or in the second week immediately following notification by the Commission pursuant to sections 1.571, 1.572, 1.573, or 1.578: Provided, however, That in the case of applications for the renewal of station licenses, but not amendments thereof, notice shall be broadcast prior to filing, as prescribed in paragraph (m) of this section, instead of after filing, as provided in this paragraph. In the case of television broadcast stations and noncommercial educational television broadcast stations, such notice shall be broadcast orally with camera focused on the announcer. The notice required by this paragraph shall be broadcast during the following periods:
* * *
(f) The notice required by paragraphs (c) and (d) of this section shall contain the following information, except as otherwise provided in paragraph (m) of this section in the case of license renewal applications:
* * *
* * *
(i) Any party in interest may file with the Commission a petition to deny any such application (whether as originally filed or amended) no later than 30 days after issuance of a public notice of the acceptance for filing of any such application or amendment thereto: Provided, however, That in the case of applications for standard broadcast facilities, petitions to deny may be filed at any time prior to the day of Commission grant thereof without hearing or the day of formal designation thereof for hearing; but where the Commission issues a public notice pursuant to the provisions of section 1.571(c) listing standard broadcast applications as available and ready for processing, no petitions to deny any such listed application will be accepted after the "cutoff" date specified in the public notice; And provided further, That in the case of applications for renewal of license, petitions to deny may be filed at any time prior to the last day for filing mutually exclusive applications under section 1.516(e). Petitions to deny shall contain specific allegations of fact sufficient to show that the petitioner is a party in interest and that a grant of the application would be prima facie inconsistent with the public interest, convenience, and necessity. Such allegations of fact shall, except for those of which official notice may be taken, be supported by affidavit of a person or persons with personal knowledge thereof.
* * *
(m) (1) Paragraphs (a) through (k) of this section apply to applications for the renewal of station licenses except that:
(i) Notices required under paragraphs (c), (d), and (g) shall be given to the public, in the prescribed manner, and at the prescribed times during the prescribed number of weeks, but during the 6-week period preceding the date specified in section 1.539(a) for the timely filing of license renewal applications, instead of after the application is filed.
(ii) The information contained in the public notice prescribed in paragraphs (f) and (g) shall reflect the prospective (rather than the previous) filing of the license renewal application.
(iii) Notices for stations subject to paragraphs (c) and (d) shall include the following statement, in addition to the information required under paragraph (f) (1) and (4):
The application of this station for renewal of its license to operate in the public interest is required to be filed with the Federal Communications Commission no later than (insert here the date prescribed in sec. 1.539(a)). Members of the public who desire to bring to the Commission's attention facts concerning the operation of this station should write to the Federal Communications Commission, Washington, D.C. 20554, not later than (insert here the date 30 days after the last day for timely filing of the license renewal application). Letters should set out in detail the specific facts which the writer wishes the Commission to consider in passing on the application.
A copy of the license renewal application and related material will, upon filing with the Commission, be available for public inspection at (state here the address where station records are made available for public inspection as required by sec. 1.526(d) between the hours of and . (Regular business hours.)
(iv) The statement containing the information prescribed in paragraph (h) of this section shall be filed with the license renewal application.
(2) Paragraphs (a) through (k) of this section apply, without change, to major amendments to license renewal applications, to which section 1.578(a) applies.
5. Section 1.591 is amended by changing the final period of paragraph (b) to a semicolon and adding new subparagraph
(3) reading as follows:
Section 1.591 Grants without hearing of authorizations other than licenses pursuant to construction permits.
* * *
(b) * * * or (3) the date prescribed in section 516(e) in the case of applications which are mutually exclusive with applications for renewal of license of broadcast stations.
* * *
6. The following identical note is added at the end of sections 73.34, 73.218, 73.518, 73.630, and following paragraph (d) of section 74.15.
NOTE. -- For the cutoff date for the filing of applications mutually exclusive with, and petitions to deny, renewal applications, see section 1.516(e) of this chapter.
Licenses for broadcast stations ordinarily will be issued for a period of 3 years and, when regularly renewed, at 3 year intervals thereafter: Provided, however, That, if the Commission finds that the public interest, convenience, and necessity will be served thereby, it may issue either an initial license or a renewal thereof for a lesser term. When regularly issued or renewed, licenses will be issued to expire at the hour of 3 a.m. e.s.t., in accordance with the following schedule, and at 3 year intervals thereafter.
(1) For stations located in Florida, Puerto Rico, and Virgin Islands, February 1, 1970.
(2) For stations located in Alabama and Georgia, April 1, 1970.
(3) For stations located in Arkansas, Louisiana, and Mississippi, June 1, 1970.
(4) For stations located in Tennessee, Kentucky, and Indiana, August 1, 1970.
(5) For stations located in Ohio and Michigan, October 1, 1970.
(6) For stations located in Illinois and Wisconsin, December 1, 1970.
(7) For stations located in Iowa and Missouri, February 1, 1971.
(8) For stations located in Minnesota, North Dakota, South Dakota, Montana, and Colorado, April 1, 1971.
(9) For stations located in Kansas, Oklahoma, and Nebraska, June 1, 1971.
(10) For station located in Texas, August 1, 1971.
(11) For stations located in Wyoming, Nevada, Arizona, Utah, New Mexico, and Idaho, October 1, 1971.
(12) For stations located in California, December 1, 1971.
(13) For stations located in Washington, Oregon, Alaska, Guam, and Hawaii, February 1, 1972.
(14) For stations located in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont, April 1, 1969.
(15) For stations located in New Jersey and New York, June 1, 1969.
(16) For stations located in Delaware and Pennsylvania, August 1, 1969.
(17) For stations located in Maryland, District of Columbia, Virginia, and West Virginia, October 1, 1969.
(18) For stations located in North Carolina and South Carolina, December 1, 1969.
47 CFR secs. 73.34, 73.218, 73.630 (1968).
Section 1.539 Application for renewal of license.
(a) Unless otherwise directed by the Commission, an application for renewal of license shall be filed at least 90 days prior to the expiration date of the license sought to be renewed, except that applications for renewal of license of an experimental or developmental broadcast station shall be filed at least 60 days prior to the expiration date of the license sought to be renewed.
(b) No application for renewal of license of any broadcast station will be considered unless there is on file with the Commission the information, if any, currently required by sections 1.611-1.615, inclusive, for the particular class of station. The renewal application shall include a reference by date and file number to such information on file.
(c) Whenever the Commission regards an application for a renewal of license as essential to the proper conduct of a hearing or investigation, and specifically directs that it be filed by a date certain, such application shall be filed within the time thus specified. If the licensee fails to file such application within the prescribed time, the hearing or investigation shall proceed as if such renewal application hd been received.
(d) The following application forms shall be used:
(1) FCC Form 303 "Application for Renewal of Broadcast Station License."
(2) FCC Form 311 "Application for Renewal of an International, Experimental Television, Experimental Facsimile, or a Developmental Broadcast Station License." To be used for all applications for renewal of licenses of experimental television, experimental facsimile, and developmental broadcast stations.
(3) FCC Form 313 "Application for Authorization in the Auxiliary Broadcast Services." To be used for all applications for renewal of regular licenses of auxiliary broadcasting stations.
(4) FCC Form 313 "Request for Subsidiary Communications Authorizations."
(5) FCC Form 342 "Application for Renewal of Noncommercial Educational TV, FM, or Standard Broadcast Station License."
(6) FCC Form 345 "Application for Renewal of Television Broadcast Booster Station License."
(7) FCC Form 348 "Application for Renewal of Television Broadcast Translator Station License." (Sec. 308, 48 Stat. 1034, as amended; 47 U.S.C. 308)