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In Re Application of: LAMAR LIFE BROADCASTING CO. (WLBT (TV)), JACKSON, MISS. For Renewal of License

 

File No. BRCT-326

 

FEDERAL COMMUNICATIONS COMMISSION

 

21 F.C.C.2d 277; 18 Rad. Reg. 2d (P & F) 274

 

RELEASE-NUMBER: FCC 70-125

 

Adopted January 29, 1970

 


 

ACTION:  

MEMORANDUM OPINION AND ORDER

 

JUDGES:

BY THE COMMISSION: COMMISSIONER JOHNSON CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT; COMMISSIONER WELLS ABSENT.

 


 

OPINION:

 [*277]  1.  In Lamar Life Broadcasting Company, 20 F.C.C. 2d 635, adopted December 3, 1969, we vacated the grant of the application (BRCT-326) of Lamar Life Broadcasting Co. (Lamar), for renewal of license of television broadcast station WLBT, channel 3, Jackson, Miss.; requested a new application (form 301) from Lamar; and invited competing applications for the channel.  Now under consideration are: a petition to impound the profits of station WLBT, filed December 10, 1969, by Civic Communications Corp. (Civic), applicant (BPCT-4305) for a new commercial television broadcast station to operate on channel 3, Jackson, Miss.; an opposition filed December 23, 1969, by Lamar; related pleadings; n1 a petition seeking reconsideration of our action of December 3, 1969, filed December 24, 1969, by Lamar; an opposition filed January 6, 1970, by Civic; and related pleadings.  n2

n1 The pleadings relating to the petition to impound profits are: a reply filed Jan. 5, 1970, by Civic; a motion to strike the reply filed Jan. 8, 1970, by Lamar; a reply to the motion to strike filed Jan. 12, 1970, by Civic; and a response to that reply filed Jan. 16, 1970, by Lamar.  On our own motion, we accept Civic's reply, which was filed 3 days late.

n2 The pleadings relating to the petition for reconsideration are: a motion to strike the opposition and a reply to the opposition filed Jan. 8, 1970, by Lamar; a reply to the motion to strike filed Jan. 12, 1970; and a response to that reply filed Jan. 16, 1970, by Lamar.  On our own motion, we accept Civic's opposition, which was filed 1 day late.

2.  A brief review will aid in the understanding of the present pleadings.  In Office of Communication of the United Church of Christ et al. v. Federal Communications Commission, Case No. 19,409, decided June 20, 1969, the U.S. Court of Appeals for the District of Columbia Circuit reversed and remanded the Commission's grant of Lamar's application for renewal of license of station WLBT.  The Court stated:

 

* * * (The) grant of a license must be vacated forthwith and the Commission is directed to invite applications to be filed for the license.  We do refrain, however, from holding that the licensee be declared disqualified from filing a new application * * * The Commission is directed to consider a plan for interim operation pending completion of its hearings; if it finds it in the public interest to permit the present licensee to carry on interim operations that alternative is available.   [*278]  The Commission is free to consider whether net earnings of the licensee should be impounded by the Commission pending final disposition of this license application.  (Slip Opinion, p. 13, footnote omitted.)

 

The Commission subsequently filed a petition for rehearing or clarification and suggestion for rehearing en banc.  In that petition the Commission contended that the Court's mandate was a departure from the statutory scheme required by section 307(d) of the Communications Act of 1934, as amended, n3 and section 558(c) of the Administrative Procedure Act.  n4 In view of the language of those statutes, the Commission urged that the Court:

 

n3 Section 307(d) provides in part; "Pending any hearing and final decision on such an application (for renewal of license) and the disposition of any petition for rehearing pursuant to sec. 405, the Commission shall continue such license in effect."

n4 Section 558(c) provides in part; "When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency."

 

* * * clarify or modify its decision to provide (1) that the Commission set aside its grant of the WLBT renewal and reconsider the application and the record under an allocation of the burden of proof that is in accordance with the Court's opinion, and (2) depending on the outcome of (1) above, that in the proceeding very shortly to be held where new applicants for the channel are to be considered, WLBT may file a competing application in the form of a request for renewal of its authorization or, if it is found unqualified to receive a renewal of its present authorization, that it is barred from further consideration.  (Commission Brief, pp. 8-9.)

3.  The Court denied rehearing in a per curiam decision dated September 5, 1969.  Two judges issued a statement with that decision that said:

The Commission points to the provisions of 47 U.S.C. section 307(d) to the effect that, pending final disposition of a renewal application, the Commission "shall continue such license in effect." It says that this means that the licensee seeking renewal must be regarded as having continuing authority until its application has been finally disposed of adversely to it -- and this last, so it is said, only the Commission can do.  It is doubtful if Congress intended that a licensee should be able to remain in possession indefinitely merely because the Commission proves unable or unwilling to conduct proceedings which will survive judicial scrutiny.  A licensee holding over on any such basis is, at best, a licensee in name only, and it is presumably in such light that the licensee here involved will take its place among competing applicants.  (Slip Opinion on rehearing, p. 3.)

 

Accordingly, pursuant to section 402(h) of the Communications Act of 1934, as amended, n5 we issued our order of December 3, 1969, of which reconsideration is now sought, and which gave rise to the petition to inpound profits. 

 

n5 Section 402(h) provides in part; "In the event that the court shall render a decision reversing the order of the Commission, it shall remand the case to the Commission to carry out the judgment of the court and it shall be the duty of the Commission, in the absence of the proceedings to review such judgment, to forthwith give effect thereto * * *"

4.  In support of its petition for reconsideration, Lamar states that our decision of December 3, 1969, takes a position contrary both to our position before the Court when we sought rehearing and to prior Commission decisions; that by authorizing Lamar to operate station WLBT temporarily, the Commission has unlawfully terminated Lamar's right to operate the station until its renewal application is denied; that the Commission has, in effect, unlawfully denied Lamar's pending renewal application, contrary to section 307(d) of the Communications  [*279]  Act of 1934, as amended, section 558(c) of the Administrative Procedure Act, section 1.62(a)(1) of the Commission's rules, and the decision of the Court which recognized Lamar's holdover rights as a licensee, albeit a licensee in name only; and that if the Commission turns over operation of station WLBT to an interim operator other than Lamar and deprives Lamar of the profits of that operation, it has been deprived of property without due process of law, contrary to the Fifth Amendment to the Constitution.  The thrust of Civic's opposition to the petition for reconsideration is that the Commission's order is within the mandate of the Court and that Lamar's objections are not, therefore, attributable to the Commission, but to the Court.

5.  Little discussion is needed with respect to Lamar's argument based on our petition for rehearing to the Court.  The Court denied rehearing and, in effect, rejected our position.  We intend, therefore, in accordance with section 402(h) of the Act, to follow scrupulously the Court's decision.  The Court stated Lamar may file a new application and further directed that in the hearing to be held, Lamar is to be given no preferential treatment as an existing licensee but rather take its place among competing applicants as at best a licensee in name only.  In order to assure that all applicants compete on as even terms as possible, we directed that Lamar file an application for a new authorization (form 301), rather than amend its pending renewal application (form 303).  n6 In this manner, for the purposes of the hearing, all applicants will be on the same footing.  We further stated that while the past record of Lamar, favorable and unfavorable, would be relevant, the Hearst Radio principle would not be applied to this hearing.  See also our policy statement just issued, F.C.C. 70-62, p. 8.  The Court further stated that, "The Commission is directed to consider a plan for interim operation pending completion of its hearings * * *" and specifically listed as one alternative available to the Commission permitting Lamar to carry on interim operations.  (Slip opinion, p. 13.) This leads us to the conclusion that under the mandate of the Court we have authority to consider various alternatives, and to authorize an interim operator other than Lamar if we find that such an alternative would serve the public interest.  The Court finally stated, "The Commission is free to consider whether net earnings of the licensee should be impounded by the Commission pending final disposition of this license application." (Ibid.) This plainly indicates that we have the authority under the Court's mandate to impound net earnings and again indicates authority to consider alternatives in this respect, as might serve the public interest.  Since we are of the view that our December 3, 1969, decision is within the mandate of the Court, and since we believe that Lamar  [*280]  has not alleged anything to warrant a different result, we conclude that reconsideration must be denied.  

n6 We wish to stress that it really makes no difference whether Lamar's renewal application (303) were to be amended and then treated as, in effect a new application vis-a-vis the competing applicants, or whether the procedure we have specified (i.e., a new application -- form 301) is followed.  The substance is the same.  That being the case, we thought it desirable for the form to reflect the substance.  But in any event, the Court's direction of how Lamar is to take its place in the new proceeding is clear and must be observed.  That alone is the critical matter -- not the particular manner of its implementation.

6.  In support of its petition to impound profits, Civic states that there may be a long delay before an interim operation can begin broadcasting; that the Court stated that Lamar is "a licensee in name only" and is to compete for the channel "on even terms as nearly may be"; that permitting Lamar to retain profits is inconsistent with the Court's directive in that Lamar has the status of a licensee with all the economic benefits that flow from that status; that Lamar will not be on even terms since it will have a decided financial advantage over other applicants in that the profits can be used to prosecute its application; and that a later disposition of profits is of little value of Civic and any other applicants that may file since Lamar would already have gained a financial advantage.  In opposition, in addition to questioning the Commission's authority to impound profits, Lamar contends that Civic's arguments as to a financial advantage that would allegedly inure to Lamar are without merit.

7.  We fail to see how any significant disadvantage will accrue to Civic or any other applicant, or any corresponding advantage inure to Lamar, by permitting it to retain profits during this short prehearing period.  We do not anticipate the delay in reaching this matter hypothesized by Civic.  As we stated on our order of December 3, 1969, we will make a determination in this regard when we dispose of the question as to an interim authorization, not, as suggested by Civic, when the interim operator begins broadcasting.  We see no prejudice resulting from our action.  Moreover, by delaying a decision as to this question until after the cut-off date for filing competing applications has passed, we shall have the benefit of being able to view all competing applications, including those for interim authorizations, and suggestions for disposition of profits.  Since we believe our action to be within the mandate of the court, we conclude that the petition to impound profits must be denied.

8.  Accordingly, It is ordered, That the petition for reconsideration filed December 24, 1969, by Lamar Life Broadcasting Co., Is denied.

9.  It is further ordered, that the petition to impound profits filed December 10, 1969, by Civic Communications Corp., Is denied.

 

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

 


 

CONCURBY: JOHNSON (IN PART)

 

DISSENTBY: JOHNSON (IN PART)

 

DISSENT:

STATEMENT OF COMMISSIONER NICHOLAS JOHNSON, CONCURRING IN PART, DISSENTING IN PART.

WLBT Hearing

(In Re Application of Lamar Life Broadcasting Co., For Renewal of License)

I concur in the Commission majority's decision denying reconsideration of our action, 20 F.C.C. 2d 635 (1969), in which we vacated our prior grant of the application of Lamar Life Broadcasting Co. for renewal of the license to operate WLBT (TV), Jackson, Miss.; Requested a new application be filed by Lamar Life; and invited new  [*281]  applicants to file for the vacant channel.  I find no new facts or arguments to change my opinion at the time we issued our original decision.

I dissent, however, to our denial of the petition of Civic Communications Corp. to impound the profits of the station during the period preceding the establishment of an interim operation.  I realize that Lamar Life is being allowed to run the station only until all the parties have had a chance to file their applications for the channel and their suggestions for an interim operation.  Hopefully, the Commission will issue a decision soon on the operation of the station pending the outcome of the hearing.  In the meantime, I would not allow the profits from the station to go to Lamar Life.  It is not only unfair to prefer Lamar Life over the other applications who have filed on an equal basis with Lamar Life; it is also beneficial to Lamar Life to have a steady source of income with which to fight the actions of the other applicants.  Pending resolution of the issue of who will run WLBT during the hearing period, I would allow Lamar Life to remain as the operator, but I would impound the profits from this temporary operation.



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