In re Petition of FORUM COMMUNICATIONS, INC. For a Safe-Period Until June 1, 1969 for the Filing of an Application for Construction Permit for a New Television Broadcast Station To Operate on Channel 11, New York, N.Y.
FEDERAL COMMUNICATIONS COMMISSION
17 F.C.C.2d 959 (1969)
RELEASE-NUMBER: FCC 69-562
May 21, 1969 Adopted
MEMORANDUM OPINION AND ORDER
COMMISSION: CHAIRMAN HYDE CONCURRING AND ISSUING A STATEMENT. COMMISSIONER
[*959] 1. The Commission has before it the petition of Forum Communications, Inc. (hereinafter "Forum"), requesting that the Commission designate a safe-period until June 1, 1969, in order to afford Forum a reasonable opportunity to file a competing application for the WPIX-TV channel. Forum alleges that its application has been under preparation for some time, but can not be substantially completed and filed at the Commission in proper form prior to May 29, 1969, the last business day prior to the expiration date of the WPIX-TV license, because of the extensive work required for the proper preparation of the application. Forum alleges that its application for the WPIX-TV channel will offer a preferable alternative to the present licensee; that the public interest is furthered through the selection of broadcast licensees on the basis of comparison of competing applicants; and, that a grant of the relief requested will not burden the Commission's orderly processes nor prejudice WPIX-TV, since Forum does not request deferral of the Commission action beyond the expiration date of the current license.
2. The WPIX-TV application for renewal of
license was filed on February 28, 1969, accepted for filing on March 25, 1969,
and local notice of the filing of the renewal application was given by the
licensee in published and broadcast accounts between March 5 and 13, 1969. It is a matter of public record that all
broadcast licenses in
3. We believe that the foregoing should be amplified. The statute (section 307(e)) permits action on renewal applications 30 days before expiration, and under our rule, section 1.591(b), a grant of the application within this period has long constituted the cutoff in this renewal field. Traditionally, we have processed renewal applications with the view to action during the latter part of the month, and we have followed the regular and normal procedure in this case. What the petition thus comes down to is that petitioner is urging us to waive the cutoff embodied in our normal processing procedure. We do not believe that it is fair to do so, any more than we would do so if we were to receive such a request for waiver of the AM cut-off to prepare and file a competing application in that instance. We repeat that the cutoff regulation is a reasonable one, fair to both competing applicants and the existing station.
4. Accordingly, It is ordered, That, the petition of Forum Communications, Inc., Is denied.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCURRING STATEMENT OF CHAIRMAN ROSEL H. HYDE REGARDING RENEWAL OF STATION WPIX
Commissioner Johnson sought to have the orderly renewal of a broadcast station license deferred so that a competing application could be filed; and now, having failed in obtaining agreement for that purpose, he attacks the integrity of the other members of the Commission and accuses the Agency of proceeding in a manner contrary to accepted legal procedure. He has sought to confuse the issue by reference to Commission decisions on waiver requests in rulemaking and adjudicatory matters.
These are not pertinent here. Here the issue is whether we will waive a cutoff procedure, in order to facilitate the filing of a competing application. If, for example, in the AM field, a party came before us and simply requested a waiver of the specified cutoff, in order to file his application some time thereafter, we would not grant such a request. Rather, it would be routinely denied.
That is the case here. As explained in the majority opinion, we have a cutoff procedure in the renewal field based presently on procedures fair to the competing applicant and fair to the existing station. The petitioner here gave no reason why this cutoff procedure should be [*961] abandoned in this case. It has been afforded ample time to file a competing application.
To grant the waiver in this case, where no reasons whatever are advanced, would mean that there is always a presumption in favor of encouraging competing applications -- that our cutoff procedures are meaningless. Thus, in the AM field, we should waive whenever a request comes in. In the renewal field where we just adopted a new procedure applicable to the August 1, 1969, renewals, our action would become meaningless under Commissioner Johnson's approach since, in the event of a request like this, we would simply waive it.
I would like to be clear on one point. Our procedures must be fair and must allow full opportunity for the filing of a competing application. No one disputes that they are fair and do provide that opportunity. That being the case, a cutoff is fully appropriate, and has been so since the Ashbacker opinion indicated the legality and desirability of a cutoff.
An agency that is charged with proceeding in an adjudicatory manner in its licensing responsibility must not engage in actively encouraging the filing of competing applications lest it finds itself prejudiced against existing licensees. The renewal in question is to be processed in the normal and ordinary course of Commission business. Had a majority of the Commissioners decided to hold up the renewal until such time as another applicant could file on top of it, we certainly could stand accused of soliciting competing applicants in a manner contrary to the interest and spirit of the Communications Act.
I regret Commissioner Johnson's unwarranted attack upon the integrity of the Commissioners.
With an inspirational steadfastness of purpose, the FCC gleefully plods on today toward the cliff overhanging its coveted recognition: the award for the regulatory Commission least likely to succeed in serving the public interest.
On May 14, 1969, the attorneys for a group called Forum Communications, Inc., filed with the Commission a document entitled "Petition to Defer Action on WPIX-TV Renewal."
Commission has been, for some time, unequivocally on notice of the intention of
a citizens' group to participate in the license renewal proceeding for
television station WPIX (channel 11) in
It has nonetheless built, from a scaffold of gossamer technicality, a ruling that results in the door of this public agency being firmly slammed, once again, in the face of public representatives -- to serve the economic interest of one of the FCC's favored broadcast licensees.
Commission has already rushed through its processes with extraordinary speed a
protective cutoff for its broadcast licensees'
[*962] renewal proceedings. n1 Renewal applications for all the stations in a given
State must be filed by a fixed date (for
n1 The notice of proposed rulemaking was published on Mar. 20, 1969. The rule was adopted on May 14, 1969. By contrast, the Commission's proposed one-to-a-market rule-making (limiting broadcast ownership to one full-time property per market) was first proposed on Mar. 27, 1968, delayed at industry request on June 3, Aug. 9, Sept. 20, 1968, and Jan. 22, 1969, and is still a long way from resolution.
Not satisfied with this prospective gift to the industry, the Commission now seeks to pass out its favors retroactively as well.
WPIX's current license expires May 31, 1969. Its new license, if granted, will take effect June 1, 1969. See 47 CFR 630 (1968). The Commission has the authority to perform the ministerial act of issuing the renewal prior to June 1. But there is considerable question in my mind as to our legal power to refuse to consider protesting petitions filed prior to June 1, whenever we may technically have processed or mailed out the renewal papers.
Note that this is not a case of a request for waiver of filing deadlines received after the time has expired. Forum's petition was received on May 14, a date which all would concede was long before renewals have ever been granted.
Forum could easily have filed a skeleton petition to deny renewal on that date. Had it done so, even the imaginative Broadcast Bureau would have been hard pressed to devise reasons for its unacceptability. The petition subsequently could have been amended with the document Forum indicated on May 14 it planned to file before June 1 anyway. Instead, Forum took the honest course. It told us in timely fashion that (a) it intended to file, (b) it would do so before June 1, and (c) it requested that we not grant the renewal prior to that time in view of our knowledge of its intentions. What could be more reasonable or straightforward?
I recognize that Forum has not followed the intricacies of our procedures to the letter. I had assumed, however, that ever since the time of the old common law writs the judicial process in most civilized nations had been liberalized somewhat.
The Commission had formerly seemed to me the Bureau of Waivers. Every Wednesday we routinely grant waivers of our rules for some (while mysteriously enforcing them for others). Ownership rules are ignored; transmitter sites are moved to create additional interference; stations held less than 3 years are sold; and, yes, our filing deadlines are bent well out of shape.
Indeed, at the very Commission meeting at which this infamous decision emerged the Commission announced its willingness to accept -- from broadadcasters only, of course -- arguments and pleadings [*963] filed even after deadlines have passed! n2 Needless to say, Forum's request is modest indeed by comparison. n3
n2 Southwestern, while acknowledging that a pregrant informal objection could have been filed, makes no showing as to why one was not filed. Therefore, the petition is defective. [Citations omitted.] However, in view of the substantial public interest questions raised by Southwestern, we shall, on our own motion, waive the provisions of sec. 1.106 of the rules and consider the petition. Louisiana Television Broadcasting Corp., F.C.C. 69-567 (1969), par. 3.
n3 The majority says:
Traditionally, we have processed renewal applications with the view to action during the latter part of the month, and we have followed the regular and normal procedure in this case. What the petition thus comes down to is that petitioner is urging us to waive the cutoff embodied in our normal processing procedure. (Majority opinion, par. 3.)
What it fails to note is that its normal procedure has almost always involved issuing renewals at the last possible moment -- or even after the expiration of the licenses. See, e.g., Public Notice of Broadcast Action, reports Nos. 7851, 7852, 7853, 7854, 7855, 7856, 7636, 7864, and 7865, where renewal action for the Feb. 1, 1969, license renewal group was taken Jan. 30, 1969, and Jan. 31, 1969, with public announcement on Feb. 3, 1969, and Feb. 5, 1969; and Public Notice of Broadcast Action, reports Nos. 8026, 8027, 8028, and 8029 where renewal action for the April 1 license renewal group was taken Mar. 26, 1969, and announced publicly Apr. 2, 1969.
No, one is left with the uncomfortable feeling that, once again, the public has been put out of its own house.
The first time we denied the public standing the U.S. Court of Appeals sent the case back to us with the stern admonition that:
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.
Office of Communications of United Church of Christ v. FCC, 359 F. 2d 994, 1003-04 (1966) (U.S. Supreme Court Chief Justice-designate Burger writing for the Court).
Since that time we have read our rules carefully and recently found that we could provide a little carefully chosen harassment to two public petitioners by reminding them that we insist on documents that are typewritten and double spaced. KSL, Inc., 16 F.C.C. 2d 340, 346 (1969) and see 47 CFR section 1.106(f) (1968).
Supreme Court of the
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
Since the majority opinion and my dissent were recorded on Wednesday and released on Thursday (May 22, 1969), a number of events have occurred which warrant further comment.
[*964] Chairman Hyde has issued an opinion containing some charges which, regretfully, require reply.
Forum has filed with the Commission the petition it indicated on May 14, it would file before June 1.
Broadcast Bureau Chief George Smith has issued the license renewal for station WPIX.
It has been, in short, quite a day.
I. Chairman Hyde's Concurring Statement
Chairman Hyde has written:
Commissioner Johnson sought to have the orderly renewal of a broadcast station license deferred so that a competing application could be filed; and now, having failed in obtaining agreement for that purpose, he attacks the integrity of the other members of the Commission and accuses the Agency of proceeding in a manner contrary to accepted legal procedure.
I have not, in this case or any other since my term began on July 1, 1966, ever sought to have the orderly renewal of a broadcast station license deferred so that a competing application could be filed. As I noted in fotnote 3, the majority expressly instructed the Chief of the Broadcast Bureau to follow the regular and normal procedure. Chairman Hyde repeats in his opinion today that the renewal in question is to be processed in the normal and ordinary course of Commission business. As we shall shortly see, the Broadcast Bureau has pointedly flouted this instruction. But I think my opinion makes clear that I would have been perfectly willing to abide the majority's judgment on this issue. Indeed, that's what the controversy was all about. It seemed to me that Forum was, in fact, asking for no more than normal and ordinary course of Commission business would have given it anyway (namely, that the renewal would not be granted until the end of the nomth), and that it was entitled to it as a matter of law and good administrative practice. I did attempt to obtain agreement for the position expressed in my dissent, as I generally do on matters before the Commission. I felt then, and in light of recent events feel even more strongly now, that such would have been a more prudent course for this Commission to follow.
I regret that Chairman Hyde feels there is something involved in this case, or in my opinion, that raises an issue in his mind as to the integrity of the Commissioners. I have often praised my colleagues publicly, including Chairman Hyde. We have occasionally disagreed on the results in cases, and the reasons for those results. But I have never -- certainly never intentionally -- engaged in ad hominum arguments or hinted at any lack of personal integrity. I do not do so now, and would not. I can only operate on the assumption -- backed by my personal experience -- that my colleagues are men of experience, ability, and integrity who are required by law to express their personal, honestly arrived at (and occasionally conflicting) views on the cases before this Commission.
Chairman Hyde goes on to say:
An agency that is charged with proceeding in an adjudicatory manner in its licensing responsibility must not engage in actively encouraging the filing of competing applications lest it finds itself prejudiced toward existing licensees. [*965] The renewal in question is to be processed in the normal and ordinary course of Commission business. Had a majority of the Commissioners decided to hold up the renewal until such time as another applicant could file on top of it, we certainly could stand accused of soliciting competing applicants in a manner contrary to the interest and spirt of the Communications Act.
There is absolutely nothing in this paragraph with which I take exception -- except its relevance to the matter at hand.
We were presented with a legal document by a citizens group. We were required to dispose of it. I felt we should grant it; the majority of the Commission disagreed. To have granted it could not possibly have been interpreted as soliciting competing applicants or actively encouraging the filing of competing applications. We would have been simply actively disposing of applications already filed, not encouraging their filing.
The mere suggestion of encouraging or soliciting competing applications is loaded with political and emotional dynamite at this point in history, as Chairman Hyde is aware. We spent 2 days before the Senate Commerce Committee and 1 day before the Communications Subcommittee of the House Interstate Commerce Committee on March 4-6 of this year. Each of the Commissioners provided assurances at that time that they had not, and would not, actively solicit competing applications for stations. I am prepared to repeat those assurances today, as, I have little doubt, could each of the other Commissioners. To suggest that any of us has been a party to the deferral of orderly renewal, or that we have been actively encouraging, [holding] up the renewal, or soliciting competing applicants in a manner contrary to the interest and spirit of the Communications Act is, most charitably, misleading.
II. Forum's Filing and the WPIXLicense Renewal
As of this writing my sole source of information as to the events of yesterday (Thursday, May 22, 1969) is a story in this morning's New York Times. The Times reports that Forum filed sometime yesterday the pleading it earlier indicated to the Commission it would file by June 1. It also reports, referring to Broadcast Bureau Chief George Smith as a source, that the WPIX renewal was granted sometime yesterday. (Lydon, "Channel 11 License Fight Hits a Procedural Snag," The New York Times, May 23, 1969, p. 16 (late city edition).)
As reported in footnote 3 of the first section of this opinion the Broadcast Bureau publicly announced its renewals of broadcast station licenses due February 1 and April 1 of this year (they are processed in batches every 2 months of the year) after those dates, not before. Thus, the public announcement of the WPIX renewal on May 22 -- more than a week prior to June 1 -- would appear to be rather significantly earlier than normal.
The Commission said in its order of yesterday that the WPIX renewal would follow the regular and normal procedure. Chairman Hyde repeats in his statement of today that the renewal in question is to be processed in the normal and ordinary course of Commission business. Whatever else may be said of the Broadcast Bureau's actions it is clear these directions have not been complied with.
I trust we will be hearing more of this matter. It is regrettable.