In Re Application of SCRIPPS-HOWARD BROADCASTING Co. For Renewal of License of Station WMC-TV, Memphis,Tenn.
File No. BRCT-54
FEDERAL COMMUNICATIONS COMMISSION
26 F.C.C.2d 824
RELEASE-NUMBER: FCC 70-1217
December 16, 1970 Released
Adopted November 10, 1970
BY THE COMMISSION: CHAIRMAN BURCH CONCURRING IN THE RESULT. COMMISSIONER BARTLEY ABSENT. COMMISSIONER JOHNSON CONCURRING AND ISSUING A STATEMENT.
[*824] 1. Scripps-Howard Broadcasting Company timely filed its application for renewal of license of Station WMC-TV, Memphis, Tennessee on May 4, 1970. After the Commission had denied a request for an extension of time to file a petition to deny the application ( WSM, Inc., et al., 24 FCC 2d 561), Allen Black, Jr., et al., submitted a pleading entitled "Petition to Deny" against the WMC-TV renewal application on July 13, 1970. The licensee submitted its opposition, "Motion to Dismiss or Deny" on July 28, 1970, and the petitioner submitted its "Reply to Opposition" on September 2, 1970. Presently the Commission has for consideration a "Motion to Strike" certain portions of the Reply to the Opposition submitted by the licensee on November 4, 1970. The licensee asserts that the petitioner "... makes new allegations, expands on previous arguments, and introduces a number of inaccurate statements" in the reply. The licensee requests that the Commission either strike the indicated portions of the reply or, in the alternative, accept the instant motion as an additional pleading under Section 1.45(c) of the Commission's Rules in response to the new matters raised by the petitioners in the reply.
2. Section 1.587 of the Commission's Rules provides members of the public with an opportunity to bring to the attention of the Commission the deficiencies of prior licensee operations and of the proposals for future operations. Under Section 1.580 of the Rules, a party in interest may bring to the attention of the Commission specific allegations of fact sufficient to show that the application under consideration should not be granted. An additional purpose of the rules is to insure the orderly processing of applications for renewal of licenses by limiting the number of pleadings and delineating the purpose of each of the three pleadings. It is axiomatic that a petition to deny, the initial pleading, causes a renewal application to be placed on deferred status, until the Commission, pursuant to the requirements of Section 309 of the Communications Act (47 U.S.C. 309), has had an opportunity to fully evaluate the matter and rule on [*825] the merits of the petition. The reply pleading submitted by the petitioner is limited "... to matters raised in the opposition" by Section 1.45(b) of the Commission's Rules. The Commission does not condone the use of any pleading for other than the designated purpose nor does it condone the submission of additional pleadings which would thwart the orderly administration of the Commission's processes. However, under the present circumstances and since the licensee has answered the new allegations, the Commission is denying the Motion to Strike. In order to avoid any further pleadings in this matter, the Commission is striking the new material that the licensee has submitted in the Motion to Strike.
3. In view of the foregoing, IT IS ORDERED, That, the motion to strike is hereby DENIED; however, the Commission will consider the parts of the motion that are in direct response to any new matters that may have been raised by the petitioners in their reply. Any material raised in this motion which is not in direct response to new material offered by the petitioner in the Reply will not be considered by the Commission.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCURRING OPINION OF COMMISSIONER NICHOLAS JOHNSON
The Commission purports to rule today that "Any material raised in this motion, which is not in direct response to new material offered by the petitioners in the Reply, will not be considered by the Commission." I am concurring in this action reluctantly and only because I believe that it will have no effect on the rights of the parties in view of the unimportance of pleadings in modern procedure. Professor Davis has written:
The most important characteristic of pleadings in the administrative process is their unimportance. And experience shows that unimportance of pleadings is a virtue. In the judicial system the long-term movement has been from the common-law system of pleading to formulate issues, to the early code ideal of stating all material facts, to the view now prevailing in the federal courts that fair notice is the objective. Davis 1 Administrative Law Treatise, § 8.04, p. 523 (1958) (footnote omitted).
We must not forget Professor Davis' admonition that the important question is not the adequacy of the original notice or pleading but "the fairness of the whole procedure," and that fairness basically depends on the opportunity to prepare.
Pleading is only one of many ways of providing opportunity to prepare. Deficiencies in a pleading may be cured by informal communication, by formal amendment, by a bill of particulars, by pre-hearing conferences, or by ample continuances at the hearing. Id. § 8.04, p. 525.
What is involved here is the attempt by an overworked staff to lighten its burden by reducing the number of papers it has to consider; although this goal is understandable and even laudable, I believe that it cannot be achieved by returning to the ancient concept of rigid pleading requirements. As the United States Court of Appeals for the District of Columbia said twenty years ago:
[*826] The whole thrust of modern pleading is towards fulfillment of a notice-giving function and away from the rigid formalism of the common-law. It is now generally accepted that there may be no subsequent challenge of issues actually litigated, if there has been actual notice and adequate opportunity to cure surprise. Kuhn v. C.A.B., 87 U.S. App. D.C. 130, 183 F. 2d 839, 841-42 (1950) (footnotes omitted)
In the hearing process, as in rule-making, this agency is (or should be) engaged in the search for truth within the broad bounds of due process. So long as surprise is avoided, we cannot ignore facts which tend to bring us closer to the truth. In those rare cases where a litigant intentionally seeks to abuse the hearing process, there is ample inherent power to issue protective orders.
I am troubled in particular by the following language in the Commission's opinion:
An additional purpose of the rules is to insure the orderly processing of applications for renewal of licenses by limiting the number of pleadings and delineating the purpose of each of the three pleadings... The Commission does not condone the use of any pleading for other than the designated purpose nor does it condone the submission of additional pleadings which would thwart the orderly administration of the Commission's processes.
In the context of the action we take today, e.g., the threat that the Commission will disregard the "new material" contained in petitioner's Reply, this language smacks of a rigidity which is inconsistent with modern concepts of procedure and inconsistent with our obligation "to be informed as accurately as possible by reliable facts" relevant to the merits of issues before us. The Citizens Committee v. FCC, U.S. App. D.C. , F.2d (October 30, 1970) slip opinion, p. 9. And I frankly do not believe that this Commission would ignore information, whether "new material" or not, which was relevant to our obligation to protect "the public interest."
Finally, I want to emphasize that the pleading in question is the Reply of the licensee-renewal applicant; our action has nothing to do with Section 1.587 of our rules, which is referred to, somewhat ambiguously, in the Commission's opinion, dealing with procedure by which "any person may file informal objections" to the grant of a renewal. That section specifically states: "The limitation on pleadings and time for filing pleadings provided for in § 1.45 shall not be applicable to any objections duly filed under this section." That Section is, I repeat, not affected by today's action.