In Re Application of HOWARD UNIVERSITY, WASHINGTON, D.C. Req: 89.3 mc./s., No. 207; 0.250 kw.; 151.2 ft.
For a New Noncommercial Educational FM Broadcast Construction Permit
FEDERAL COMMUNICATIONS COMMISSION
23 F.C.C.2d 714
RELEASE-NUMBER: FCC 70-599
June 9, 1970 Released
Adopted June 9, 1970
BY THE COMMISSION: CHAIRMAN BURCH ISSUING STATEMENT IN WHICH COMMISSIONERS ROBERT E. LEE AND WELLS JOINS; COMMISSIONER BARTLEY CONCURRING IN THE RESULT.
[*714] 1. Now under consideration are: (a) The above-captioned application, and (b) the petition for reconsideration of Howard University (Howard), filed March 6, 1970, and amended March 9, 1970, which seeks reversal of the Commission's action of February 4, 1970, denying Howard's request for a waiver of section 1.227(b)(1) of the Commission's rules. n1 Such a waiver would have permitted the acceptance for filing of Howard's application to construct a new educational FM broadcast station in Washington, D.C., when the application was mutually exclusive with two other applications for the same channel which had been previously designated for hearing.
n1 Section 1.227(b)(1) provides, in pertinent part:
In broadcast cases * * * no application will be consolidated for hearing with a previously filed application or applications unless such application 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 * * *
2. On August 14, 1969, the Commission designated for hearing the mutually exclusive applications of the National Education Foundation (National) and Pacifica Foundation (Pacifica) for educational FM broadcast channel 207, Washington, D.C. (dockets Nos. 18634 and 18635). Channel 207 is the only vacant FM channel in the Washington, D.C., area, and representatives of Howard had been in contact with the Commission prior to August 14, and were apprised of the Commission's rules and of the necessity of filing promptly if their application was to be consolidated with those of National and Pacifica. Nonetheless, Howard's application was not filed until December 3, 1969, almost 4 months late.
3. On October 1, 1969, a letter was received from President Cheek of Howard requesting a waiver of section 1.227(b)(1) on the grounds that (1) an unnamed student group had filed an application in the spring of 1969, but that their records of this filing were either lost or [*715] misplaced, and (2) the availability of a radio broadcast station was important to the development of Howard's curriculum. It was also stated that another application was being forwarded under separate cover. It was this request which was denied on February 4, 1970.
4. In its current petition, Howard states that it was chartered by act of Congress in 1867, is the Nation's largest predominantly Negro institution of higher learning and lists among its achievements the operation of a law school accredited by the American Bar Association. At the same time, it contends that the insufficiency of its initial waiver request should be excused due to its unfamiliarity with the Commission's procedures and that the Commission was obligated to contact Howard in the event that additional information was necessary to obtain a hearing on its waiver request. We cannot accept this argument. The burden of persuasion in such cases is always on the petitioner and not every petition is guaranteed a hearing. Our obligation to investigate Howard's case was met after we diligently searched our files and records and determined that the application allegedly filed by Howard in the spring of 1969 had never reached the Commission. n2 If a petition fails to state facts which, if true, would be sufficient to warrant a waiver, it may be denied without hearing, U.S. v. Storer Broadcasting, 351 U.S. 192, 13 R.R. 2161 (1957).
n2 The allegation that this application had been lost at the Commission or elsewhere is not pursued in Howard's current petition.
5. Howard now sets forth additional details as to why an educational FM station would be important to Howard and adds three additional arguments in support of its waiver request: (1) The communications industry has been traditionally closed to blacks, depriving them of their first amendment rights and an opportunity to learn the Commission's procedures so that black applications must be given special consideration; (2) to allow Howard to join the proceedings now would not inconvenience the other parties as they have not as yet gone beyond the prehearing stage; and (3) it could not take any action towards filing an application until classes resumed in September due to the desirability of conferring with students and faculty on the subject.
6. These additional arguments are still insufficient to warrant a waiver of section 1.227(b)(1). The Commission has recognized the need for increased employment and service to minority groups by the communications industry and is taking steps to further these goals. n3 Nevertheless, the Commission cannot establish operating stations on its own volition, but must wait until an applicant steps forward and is then required to treat all applicants equally. Howard simply failed to step forward. See Natick Broadcast Associates, Inc., 6 F.C.C. 2d 607, 609, 9 R.R. 2d 360, 363 (1967). While we do not dispute Howard's assertions that its proposed school of communications would make a contribution towards the alleviation of the chronic national shortage of black broadcasters and journalists or the appropriateness of locating such a school in the District of Columbia where a large portion of the population is black, our action cannot be based on these facts [*716] alone. The public interest determination we are required to make must include consideration of all aspects of the case, and Howard's legitimate arguments cannot be permitted to obscure the requirements of administrative due process. See Cook, Inc., 10 F.C.C. 2d 160, 11 R.R. 2d 315 (1967), appeal dismissed, Cook, Inc. v. United States, 374 F. 2d 84 (7th Cir. 1968).
n3 "Report and Order" in docket No. 18244 (1969). "Notice of Inquiry" in docket No. 18774 (1969).
7. Although evidentiary hearings in dockets Nos. 18634 and 18635 will not begin until June 15, 1970, extensive prehearing preparations and motions have been made and argued, and considerable amounts of time and money have been expended by the participants. It would be unfair to subject them to the additional burden of facing a third contender at this late date after having made these expenditures in reliance on the rule in question limiting the number of applications to those presently in hearing. We cannot force the two present applicants to pay a penalty for Howard's tardiness. (See Cook, Inc., supra, at par. 7.) This is especially true when it is considered that the lateness of Howard's application was due to reasons totally within its control. Section 1.227(b)(1) is vital to the orderly conduct of the Commission's business and to the public interest. Without a rule providing a cutoff date for the acceptance of applications, the hearing process would be seriously impaired. Similar impairment would result if waivers of the rule were based on mere assertions of superiority, since the alleged superiority could only be demonstrated in the hearing itself. The potential for delay, waste, confusion, and inconvenience would be large, and the grant of a waiver in this case would have just these undesirable consequences.
8. The desire of President Cheek to confer with student and faculty advisors before filing an application is understandable, but does not explain Howard's failure to petition the Commission for a stay of action on the National and Pacifica applications before August 14, 1969, or to request a waiver of section 1.227(b) (1) before August 14, 1969, or to otherwise advise the Commission of its intentions so as to protect its interests. The failure to file any statement at all until October 1, 1969, and to delay another 2 months before filing an application, is neglect of a magnitude which the Commission cannot waive without a strong showing that the application of section 1.227(b)(1) would work against the public interest, and this has not been done.
9. While we believe that the Commission's rules of procedure and fairness to the parties in this case dictate the result we have reached, we are not insensitive to the concerns expressed by President Cheek and Howard University. We would point out, however, that the Washington black community is composed of numerous and diverse groups with widely differing views -- including other colleges and political and social groups -- and that Howard University could not presume to speak for them all. Because all black community groups should have an impact on the programming proposals for this facility, we urge the applicants here to create opportunities for such groups to participate in programming which is informative, educational, and responsive to local needs. Specifically, it may well be possible for the applicants to work out arrangements with Howard for training facilities or opportunities for other educational uses of the facility in conjunction [*717] with Howard's plans for a communications school. We have urged all local community groups to engage in dialogue with existing local stations -- commercial as well as educational -- "to see if greater efforts can be made to establish more meaningful communications with the Negro audience." ( Mel-Lin, Inc., 22 F.C.C. 2d 165, 171 (1970).)
10. Accordingly, It is ordered, That the petition for reconsideration of Howard University seeking a waiver of section 1.227(b)(1) of the Commission's rules which would allow it to file an application for a construction permit for an educational FM broadcast station to operate on channel 207, Washington, D.C., Is denied, and the tendered application Is returned as not in accordance with the Commission's rules.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING STATEMENT OF CHAIRMAN DEAN BURCH IN WHICH HE IS JOINED BY COMMISSIONERS R. E. LEE AND ROBERT WELLS
The touchstone of Commission action is the public interest. The action taken here by the majority is clearly contrary to the public interest.
This is the last educational channel available in Washington, D.C. -- the Nation's capital. The area has pressing educational and community problems. It is desirable, then, to have the greatest choice of applicants, so as to be in a position to choose the applicant which will best serve these urgent and growing needs. Howard University is so obviously an applicant to be included in our evaluation that it requires no discussion on that score.
The majority would not disagree with any of the above. Instead, the Commission says that it must adhere to its cutoff rule, and that is determinative of this matter. I fully agree with the importance of the cutoff procedure. The agency could not function properly if it waived that rule, solely on a notion that "here is a meritorious applicant that we would like to have in the hearing." The result would be chaos.
But I see no such deleterious policy consequences if we adopted a more liberal standard in the noncommercial educational field. This field is entirely different from the commercial area. Very rarely do we encounter comparative hearings in the educational field. The noncommercial educational applicant has greater difficulties in fashioning his application and getting necessary financing. Recognizing this we provide much greater leeway in the financial area. Why should we not do the same with respect to the cutoff rule, in view of the difficult and different circumstances facing the educational applicant? Especially when we are dealing with the last educational assignment to a large metropolitan area.
Of course, I would not waive if the hearing had commenced and progressed to a significant extent. But that is not the case here. The hearing here has not yet begun; and the majority is unduly stressing prehearing aspects. Were we to allow Howard into the hearing, it would delay nothing, would give us the choice of another well qualified applicant, and would have not a single adverse policy effect.
[*718] I stress the latter again: In this educational field, the majority is either ignoring the realities or mechanically adhering to an excellent rule, but without any thought of whether adherence to the rule serves the public interest in this instance. In doing so, we ignore the teaching of the Court in Storer (351 U.S. 192, 13) that we must be alert to situations where waiver of a rule is in the public interest. Most important, we ignore the basic reason for the creation of the administrative agency -- that unlike the courts, it can focus more flexibly on the problems coming before it.
It will be noted that I have not yet mentioned other aspects of this matter -- that Howard, the largest predominantly black institution of higher learning in the Nation, is seeking a facility in an area with a large black population, including many of school age, with pressing community problems. It has also stressed that its proposed station, linked also to a proposed school of communications would contribute greatly to the alleviation of the chronic national shortage of black broadcasters and journalists.
I am not indifferent to these aspects. It would remain for the hearing to determine whether Howard is better qualified than its rivals, and I, of course, express no opinion on that score, even on a tentative basis. But I do regard it as tragic that the Commission has deprived itself of the opportunity to make that judgment on a hearing record -- and all because of a technical adherence to a procedural rule in circumstances where waiver has no adverse consequences and can only promote the public interest.