In Re Statement Concerning COMMUNITY SURVEY SHOWINGS IN CONNECTION WITH RADIO
AND TELEVISION APPLICATIONS
FEDERAL COMMUNICATIONS COMMISSION
22 F.C.C.2d 421
RELEASE-NUMBER: FCC 70-312
MARCH 26, 1970
THE COMMISSION, BY COMMISSIONERS BURCH (CHAIRMAN), ROBERT E. LEE, COX, AND WELLS, WITH COMMISSIONERS BARTLEY AND JOHNSON DISSENTING AND ISSUING STATEMENTS, ISSUED THE FOLLOWING PUBLIC NOTICE:
[*421] In order to conserve expenditure of funds, time, and effort in the preparation of the community needs and problems survey studies which are required to be submitted with applications for new standard, FM, and TV authorizations, and are sometimes required to meet an appropriate issue in a hearing proceeding, the Commission announces the following policy:
In the case of hearing proceedings which have been remanded for further consideration of the sufficiency of the community survey issue (e.g. James Mace, F.C.C. 70-155, released Feb. 27, 1970), the presiding hearing examiner shall decide whether the challenged applicant has made a reasonable and good faith effort to satisfy the survey requirements which existed prior to the release of our decision in Camden Broadcasting Co., 18 F.C.C. 2d 412. If the examiner is satisfied that an adequate showing has been made in that regard, he will permit amendment of the application to comport with whatever standard may finally be announced by the Commission as the result of its determination of the pending Primer inquiry proceeding (docket No. 18774). Where the examiner concludes that the filing of such an amendment is permissible, however, the preparation, submission and scrutiny of such amendment will be held in abeyance until the Commission's final determination in respect to docket No. 18774 has been announced. At that time, an amendment comporting with the Commission determination in the inquiry proceeding will be submitted and considered in the hearing.
In respect to pending proceedings before the hearing examiners which do not involve a remand, but which do involve a necessity for determination of a community survey issue, and where the record has not yet been closed, the examiner will stay further proceedings relative to a determination of that issue only, to await the announcement of the Commission's determination of the above noted inquiry proceeding, and the examiner will, following such announcement, permit any applicant to effect such amendment as may be appropriate to comply with the Commission's announced determination.
[*422] In respect to cases involving a community survey issue, where the record has been closed, but where no initial decision has yet been issued by an examiner, the examiner will stay the issuance of such initial decision and will await the final determination of the above noted inquiry proceeding. Similarly, in each case before the Review Board on exceptions to an initial decision involving a community survey issue, the Review Board will stay the issuance of its final decision and will await the final determination of the inquiry proceeding. The record in such cases may be reopened and held open until the inquiry proceeding has been terminated. At such time the examiner or the Review Board will entertain an appropriate motion to amend by any applicant who desires to adduce further evidence necessary to comport his showing with the Commission's announced requirements; provided, however, that such applicant can demonstrate that he has theretofore put in the record a community survey showing which reflects a good faith and reasonable compliance with such survey requirements prior to the Commission's decision in Camden, cited above.
Finally, any persons who are presently preparing new applications for submission to the Commission for radio or television facilities should, except where required to meet deadlines or because of the danger of cutoff, refrain from filing such applications until the Commission has announced its final determination in the inquiry proceeding, so that they may be enabled to submit applications in full compliance with the requirements then announced by the Commission. In cases where such delay in filing applications is not possible, the applicant should make a good faith and reasonable effort to comply with the standards tentatively announced in the proposed Primer accompanying our notice of inquiry, and such applicant should be aware of the necessity for amendment of his application to comply with the final determination of the Commission in the inquiry proceeding when that decision is announced.
DISSENTBY: BARTLEY; JOHNSON
DISSENTING STATEMENT OF COMMISSIONER ROBERT T. BARTLEY IN WHICH COMMISSIONER NICHOLAS JOHNSON JOINS
The interim procedure results in a virtual freeze on all broadcast applications except renewals.
Also, the procedure itself may well cause further confusion. There are no guidelines to examiners, the Review Board, applicants, or their counsel as to what the Commission majority thought were "survey requirements which existed prior to the release of our decision in Camden Broadcast Co." or how the majority believes that Camden changed those requirements.
See my dissenting statement In re Mace Broadcasting Co., 21 F.C.C. 2d -- (No. 6).
I concur in Commissioner Bartley's characterization of this interim procedure as a virtual freeze over community surveys. There are a number of other alternatives open to us which would not block the processing of case currently in various stages of hearing, or of new applications in preparation for submission to the Commission/.
[*423] We could, for example, simply provide that, until the Commission reaches a conclusion to its inquiry in its pending Primer inquiry proceeding (docket No. 18774), community ascertainment surveys would be judged by "pre-Camden" standards. That would at least be preferable to complete inaction.
I believe the hue and cry raised by the broadcasting industry over alleged confusion in ascertainment standards supposedly wrought by the Camden decision is a smoke screen to cover their attempt to roll back the standards contained in that decision. I believe a careful reading of Camden will show that most, if not all, of the requirements it contains were directly taken from prior Commission decisions. I rather suspect that the broadcasting industry's surprise at Camden came, not from the principles it contained (for they had been present for some time), but from the realization that we actually intended to enforce them.
I dissent to today's interim procedure.