In Re Application of THE EVENING STAR BROADCASTING CO., WASHINGTON, D.C.
For Renewal of License of Station WMAL-TV, Washington, D.C.
File No. BRCT-23
FEDERAL COMMUNICATIONS COMMISSION
27 F.C.C.2d 316
RELEASE-NUMBER: FCC 71-126
February 5, 1971 Released
Adopted February 3, 1971
BY THE COMMISSION: COMMISSIONER ROBERT E. LEE ABSENT; COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT; COMMISSIONER HOUSER NOT PARTICIPATING.
[*316] 1. The Commission has before it for consideration: (a) the above captioned application for renewal of the license of Station WMAL-TV, Washington, D.C.; (b) a Petition to Deny filed on September 2, 1969, by a group of Washington, D.C. area individuals and organizations; n1 (c) the licensee's Opposition to Petition to Deny filed on October 3, 1969; (d) the Petitioners' responsive pleading filed on December 17, 1969; (e) an amendment to Part I, Section IV-B of the renewal application submitted by the licensee on May 12, 1970; and; (f) the Petitioners' comments concerning the May 12 amendment.
n1 The individual signatories to the petition are identified therein as being Black, and the organizations are identified as non-profit organizations particularly interested in advancing the interests of the Black members of the community.
2. Following a comparative hearing in 1946 (11 FCC 211), The Evening Star Broadcasting Company was granted an initial license to operate a television station, WMAL-TV, on Channel 7 in Washington, D.C. All of the licensee's stock is owned by The Evening Star Newspaper Company, which publishes a daily newspaper, The Evening Star, and a Sunday newspaper, The Sunday Star, in Washington, D.C. The licensee also operates an AM and FM in Washington. The Evening Star Newspaper Company further owns all of the stock of WLVA, Inc., licensee of Stations WLVA and WLVA-TV, Lynchburg, Virginia and all of the stock of The First Charleston Corporation, licensee of Station WCIV (TV), Charleston, South Carolina. On July 1, 1969 the licensee filed the subject application for renewal of the WMAL-TV license.
3. On September 2, 1969, a group of individuals filed a timely Petition to Deny the WMAL-TV renewal application. The 16 individuals [*317] (whose standing to file the petition is conceded by the licensee) allege that they are residents of the WMAL-TV service area, are responsible representatives of the listening public, and are in some cases filing the petition both in their individual capacities as leading citizens and as spokesmen for the members of the respective organizations which have joined as parties. Specifically, the Petitioners are:
Individual and organization represented:
Julius W. Hobson, Association of Community Teams.
Charles I. Cassell, D.C. School Action Council.
Issac Long, Adams-Morgan Community Council.
Kenneth C. Kennedy, Northeast Neighborhood Council.
John M. Thornton, National Capital Voters Ass'n.
Etta M. Horn.
Douglas Moore, Black United Front.
Channing E. Phillips.
Roena J. Rand, Trinidad Youth Civic Ass'n.
Julius Mack, Black Unitarian-Universalist Caucus.
Willie J. Hardy, Metropolitan Community Aid Council.
William D. Wright, Unity House.
Chuck Stone, Committee for Excellence and Equality in Education.
Calvin W. Rolack, Washington Highland Civic Ass'n.
Marion Barry, Jr., PRIDE, Inc.
Walter E. Fauntroy.
The Petitioners request that the Commission designate the WMAL-TV application for hearing, and thereafter deny the application because of the licensee's alleged failure to operate WMAL-TV in the public interest. The grounds upon which this request is made are set forth below.
Ascertainment of Black Interests
4. The Petitioners first allege that "... the licensee has not consulted with a substantial number of broadly represented spokesmen for the Black community to ascertain the interests, needs and desires of the substantial Black population within the District of Columbia." Petitioners also state that the licensee did not consult with any representative of the Black community residing outside of the District of Columbia but within the WMAL-TV primary service area. They cite a survey taken by the Institute for Policy Studies, to determine the leaders in the local Black community, and state that the licensee actually consulted with just one Black leader who was named in the survey. Finally, the Petitioners submit affidavits from seven individuals named by the licensee in its renewal application as having been consulted in connection with its ascertainment of community needs and interests. These individuals (listed in paragraph 5 below) allege that they were not directly consulted by the licensee, and it is further alleged that the nature of their association with the licensee has been misrepresented. Six other individuals did not sign affidavits but are allegedly willing to present testimony at a hearing to the same effect.
5. In its Opposition dated October 3, 1969, the licensee undertook generally to defend its renewal application survey of the community, which included 130 individuals classified as public officials, educators, labor leaders, community leaders, representatives of eleemosynary organizations, religious leaders, business leaders, professional leaders [*318] and cultural leaders. n2 In the renewal application, the licensee stated that the survey was done by means of direct consultation with community leaders by management personnel, by its close personal association with various officials, leaders and representatives of the organizations listed and by its presence at forums where community problems are discussed. The licensee described its relationship with the individuals as a "close personal association," and states that the associations maintained "represent a daily and continuing activity." Its specific comments, as set forth in the Opposition, with respect to the individuals who state that they were not directly consulted by WMAL-TV, or that the nature of their association with the licensee has been misrepresented, are set forth below with Petitioners' charges.
n2 Petitioners pointed out that the licensee contacted no representatives of agriculture and "other" organizations -- two categories mentioned in our Public Notic of August 22, 1968 (FCC 68-847), Ascertainment of Community Needs by Broadcast Applicants. That notice does not require consultation with individuals in each category, however, but instead placed upon the licensee the requirement that it consult with leaders in community life "who bespeak the interests which make up the community." A Washington, D.C. licensee's failure to consult with agricultural representatives does not, in our opinion, invalidate its survey.
Individual and allegation
Ruth Bates Harris, Executive Director of the District of Columbia Human Relations Commission. Alleged no visit or consultation by WMAL-TV management concerning her or the Commission's ideas, Opinions or views regarding program content. She further indicated that the station "... often presented news items which have featured the activities of our Commission in a fair and impartial manner."
Licensee has not consulted her concerning her "opinions or views" regarding program content, but has consulted her upon inner city problems. WMAL-TV has broadcast many news program interviews with her regarding city problems, and has carried many announcements for the Commission. She appeared on an April 1968 news program to give information regarding riot problems. The station broadcast a public affairs program on August 31, 1969, entitled "Close-Up: Ruth Bates Harris," on which she appeared.
James L. Jones, Director of District of Columbia Youth Programs Unit. Said that the licensee has maintained "some relationship with me" but that the relationship could not be considered "continuous and close." There has been no contact on a year around basis regarding youth activities. The licensee has consulted him regarding his ideas, opinions and views on needs, wants, interests and desires of the Black community in terms of youth programs, but there has been no consultation regarding broadcasting schedule, operations or policies.
At the initiation of the licensee, WMAL-TV broadcast a May 1968 program on summer projects, on which Mr. Jones appeared. Another program in August 1968 evaluated the summer youth programs, and Mr. Jones appeared. Members of the WMAL-TV public affairs staff contacted Mr. Jones after that program and in January and February 1969 to discuss the Unit's winter programs. He indicated he would re-contact WMAL-TV, but did not do so. During August 1968 public affairs staff members were in daily contact with Mr. Jones regarding the program "Project Music" broadcast in October 1968. Station personnel called Mr. Jones in February 1969 regarding an OEO film on summer projects. In May 1969, WMAL-TV news manager met with Mr. Jones regarding plans for the summer of 1969. Several programs on the projects were broadcast during the summer of 1969.
Father William Wendt, rector of St. Stephens and the Incarnation Church. Said description of his re-fairs staff telephoned Father Wendt relationship with licensee is not accurate, as the licensee has not maintained a close personal association with him, nor has it maintained a daily and continuing association, nor has it participated in his or the church's civic or charitable efforts in an active or regular function. WMAL-TV has presented public service announcements for the church.
In April of 1969, a member of the WMAL-TV news and Public Afregarding the aid program for hungry people. He then visited the church for two days and discussed with Father Wendt the problem of hungry indigents. WMAL-TV filmed the church's work in this area and carried it in news programs in April 1969. Father Wendt also appeared on WMAL-TV in July 1969 and discussed social work activities in his parish.
Rev. Channing Phillips, D.C. Democratic National Committeeman, Senior Minister of Lincoln Temple, U.C.C., President of Housing Development Corporation. Said that there has been no contact by WMAL-TV regarding his ideas, views or opinions concerning the interests, desires, wants or needs of the Black community in D.C. The licensee does not maintain a daily and continuing association or a close personal association. lems at a meeting of the Urban Coa-
Rev. Phillips appeared on a religious program several times from October 1966 to April 1967. In April 1968 a WMAL-TV news reporter talked to Rev.Phillips about District problems. In August 1968 a news staff member consulted with Rev. Phillips about political subjects. Rev. Phillips appeared on a program in October 1968 to discuss politics. In February 1969 a member of the news and public affairs staff talked with Rev. Phillips about city roblition. There was the same type of discussion at a Democratic Committee meeting in the spring of 1969. Rev. Phillips appeared on a WMAL-TV program in June 1969 to promote a community action organization.
Rev. Walter E. Fauntroy. Stated that the licensee has not consulted him regarding his ideas, views or opinions concerning the interests, desires, wants or needs of the Black community, "... except as might be gleaned from various news interviews on specific public issues which I have given...." WMAL-TV has not maintained a close personal association, and the type of relationship depicted by application is inaccurate.
There have been numerous discussions between a member of WMAL-TV's news staff and Rev. Fauntroy since 1963. There were also numerous meetings between Rev. Fauntroy and another WMAL-TV staff member in July 1967 regarding his efforts to have a subway line in an urban renewal area. He discussed the Kerner Report with a WMAL-TV reporter in April 1968. The reporter said that the licensee was interested in seeking a Negro spokesman to articulate community needs, and valued his competence in this area. Rev. Fauntroy appeared on WMAL-TV at licensee's request in April 1968 to appeal for a cessation of rioting. A portion of his church service and his views on the city's problems were aired on news programs that month too. Also, he appeared on a local public affairs program in April 1968. He appeared on the news in the spring of 1969 to promote a choir. He also appeared on a public affairs program in April 1969 to discuss community problems one year after the riots. Rev. Fauntroy was contacted in May 1969 by the WMAL-TV editorial director about the Poor Peoples Campaign. He discussed training for needy youth on an August 1969 news program.
Rev. David H. Eaton, Pastor-Elect, All Souls Unitarian Church. Said that the licensee has not consulted him as an individual or representative of the Black community regarding his ideas, views or opinions concerning the interests, desires, wants or needs of the Black community.
A member of the WMAL-TV news and public affairs department met with Rev. Eaton in 1968 to discuss a proposed series of three "vignettes" on the Opportunities Industrialization Center, of which he was Executive Director. The first vignette was broadcast on June 17, 1968, and featured Rev. Eaton. Rev. Eaton was included in the Fisher Survey (see paragraph 6 below).
Charles I. Cassell, Chairman of D.C. School Action Council. Said that the licensee has not consulted him as an individual or community leader concerning the interests, desires, wants or needs of the Black community. The station has not maintained a close personal association with him, nor has there been any communication with him to help the licensee broaden its understanding of needs of the community. Julius Hobson, Chairman, Associated Community Teams. Said that the licensee has not consulted him, as an individual or Black leader or as a representative of D.C. School Board, regarding his ideas, views or opinions concerning the interests, desires, wants or needs of the Black community. There has been no close personal association between him and licensee, nor has licensee communicated with him to help it broaden its understanding of community needs.
A member of WMAL-TV news and public affairs staff met Mr. Cassell at a meeting in the spring of 1968, and talked with him after the meeting for one-half hour regarding the problems of the Black community. In the spring of 1969, another member of the news and public affairs staff interviewed Mr. Cassell for more than an hour, and discussed police-community relationships, among other things. In a July 1969 news vignette, broadcast twice, Mr. Cassell discussed the meaning of Black Power with the WMAL-TV editorial director. Since 1967 Mr. Hobson has been a prime news contact for a WMAL-TV reporter. In mid-1967, the station's editorial director had a telephone conversation with Mr. Hobson regarding a bankruptcy plan for poor people. In March 1968 a staff member interviewed Mr. Hobson concerning the issue of discrimination in government hiring. In May 1969 Mr. Hobson appeared on a WMAL-TV discussion program and discussed a book he had written. In June 1969 a local public affairs program regarding community control of police featured a discussion between Mr. Hobson and the Asst. Chief of Police. During the first eight months of 1968 a WMAL-TV staff member talked with Mr. Hobson at school board meetings and press conferences, discussions which resulted in news stories.
[*321] 6. The licensee, in discussing its ascertainment of community needs and interests, also points to its retention of a consultant in June 1968 to study inner city problems to determine how the licensee might increase the effectiveness of its public affairs programming. The consultant, Charles B. Fisher, was Black. As a result of his findings and recommendations, the licensee undertook new efforts to broadcast programming and public service announcements devoted to inner city needs. These efforts include programs dealing with job training opportunities, vignettes on the duties and responsibilities of the police, and increased prime time public service announcements giving information on health, welfare and social services in the community. In addition to the Fisher Report, the licensee's personnel in June 1969 met with representatives of Unity House (one of the petitioners). As a result of that meeting, the licensee established an Inner City Unit composed of its Editorial Director and a Black member of the News and Public Affairs Department. On May 12, 1970, the licensee filed an amendment to Section IV-B, Part I of the renewal application for the stated purpose of supplying, "... additional information concerning efforts of The Evening Star Broadcasting Company to ascertain community needs and problems...." The amendment and the Petitioners' response are considered in paragraphs 24-26, infra. It should be noted that on December 19, 1969, the Commission issued a Notice of Inquiry for the purpose of clarifying the requirements of Part I, Section IV-A and IV-B of the renewal application. Licensee states that the amendment results from this document hereinafter referred to as the "Primer". (Primer on Ascertainment of Community Problems by Broadcast Applicants, Part I, Section IV-A and IV-B of FCC forms, 20 FCC 2d 880 (1969)).
7. In the Reply to the Opposition to Petition to Deny, filed December 17, 1969, the Petitioners reiterate their allegations that the licensee has inadequately surveyed its city of license to determine the needs and interests of the primarily Black population. First, they object to the licensee's statement that "... its area of primary responsibility includes Montgomery and Prince George's Counties in Maryland, and Arlington, Falls Church, and Fairfax in Virginia." n3 Petitioners state that the principal community to be served is Washington, D.C., and that its primary responsibility is not to the suburban areas, citing South Carolina Educational Television Commission, 20 FCC 2d 342 (1969) and Eagle Broadcasting Company, 20 FCC 2d 233 (1969), among other cases. n4 Petitioners strongly attack the idea (attributed to the [*322] licensee) that a licensee has a duty to serve equally all the communities within its primary service area. Contending that they have raised a substantial question as to whether the licensee directed its survey to the principal community, Petitioners request that this issue be designated for hearing. Petitioners also allege that the licensee's survey of the listening public was deficient and that the Fisher Survey (see paragraph 6 above) was unscientific and baseless. It is alleged also that no attempt was made to survey members of the listening public in the areas surrounding the principal community. With respect to the 130 leaders listed on the license renewal application, Petitioners allege that this number is too small in view of the size of the community, and that the individuals are predominantly associated with the surrounding suburban areas. Petitioners further attack the fact that only 16% of the 130 individuals listed are Black. Moreover, Petitioners reassert that the Black individuals listed are not a representative cross-section of community leadership, citing the aforementioned Institute for Policy Studies survey.
n3 Inclusion of these areas would, according to the licensee's statistics, give a metropolitan racial composition of approximately 75% white population.
n4 At this point we must interject. The cases cited by the Petitioners are inapposite. It has been a long standing and almost axiomatic policy of this Commission that "... stations located in a particular city are licensed to serve not only the needs of the population of that city but also the needs of persons residing within the station's entire service area." Huntington Broadcasting Co., 5 RR 721, 744, affirmed 192 F 2d 33 (1949). See also Petersburg Television Corp., 19 F.C.C. 451, reconsideration denied 10 Pike and Fischer, RR 5840 (1954), affirmed sub nom. Southside Virginia Telecasting Corp. v. F.C.C. 97 U.S. App. D.C. 130, 228 F 2d 644 (1955), cert. den., 350 U.S. 1001 (1956). This policy is particularly applicable to the licensee of a television station due to the more limited number of channels available. Service area, in other words, should be defined in terms of coverage and not in terms of artificial political boundaries. The needs and interests of all people within the station's service area should be of concern to a licensee. In so stating, we do not ignore the fact that the problems of most cities are particularly complex and pressing and require great efforts on the part of the licensee to fulfill its responsibilities. The suburban areas, however, are not necessarily disserved by programming designed to meet urban problems.
8. Petitioners further allege that the licensee has no list of specific suggestions offered by the leaders, that the list of suggestions selected by the licensee is imprecise, and that the licensee's statement of how the suggestions have influenced its programming is inadequate. Finally, Petitioners submit a listing of the needs and interests of the Black Community in the District of Columbia and state that this shows the failure of the licensee to relate its listing of needs to its survey. As to the charges that the licensee did not actually survey some of the Black community leaders listed in its application, Petitioners state that the majority of the "interviews" involved were conducted only when the affiant was involved in a news issue or story. This, according to Petitioners, is not a valid consultation for renewal application purposes. They also allege that the interviews were improper because they were not "intensive, in-person confrontations" and because the licensee did not disclose that the interview was for the ascertainment of the needs and interests of its principal community and the outlying areas, citing Click Broadcasting Company, 18 FCC 2d 797 (1969). Petitioners therefore request that the Commission designate a misrepresentation issue regarding the licensee's survey process.
Programming for Blacks
9. After listing a number of issues of great concern to the Black community, Petitioners allege that "... station WMAL-TV, aside from very occasional and irregular presentations on news programs, does not regularly or substantially present programming on topics which are of general, as well as specific, interest to its very substantial Black Audience." This alleged failure is particularly significant, according to Petitioners, because of the great dependence of the Black residents on television instead of the printed media as a source of news and information. Finally, Petitioners allege that WMAL-TV is held in low esteem in the District of Columbia Black community. To support this contention, they point to a survey conducted by the Institute [*323] for Policy Studies. n5 This survey shows WMAL-TV as ranking below the other three Washington VHF stations when Black people were asked to rank the four stations as to how well they served the needs and interests of the Black community.
n5 Three separate studies conducted by the Institute for Policy Studies, a non-profit educational foundation located in Washington, D.C., have been used by the Petitioners and are attached to the Petition as Attachments B, C and I. This particular survey is entitled "Survey of Opinions of Black People of Washington, D.C. Which Station or Stations Best Serves the Needs and Interests of the Black Community?" (Attachment C)
10. The licensee contends that programming cannot be broken down into the mutually exclusive categories of "white programming" and "black programming." In addition to its general programming, however, it alleges that it has broadcast numerous locally produced non-entertainment programs which deal directly with matters of particular relevance to the Black community. Included are programs dealing specifically with the Petitioners' enumerated issues of interest to the Black community. Some examples of the programming for the Black community are:
(a) Half-hour special on new president of Howard University.
(b) Documentary on inadequacy of District court system.
(c) Special program on inner city musical groups.
(d) Special analysis of District summer programs.
(e) Series of reports on District narcotics problems.
(f) Appearance of former National Director of CORE concerning his new book on discrimination.
(g) Analysis of underprivileged consumer problems.
(h) Discussion of promotion of Black Capitalism in D.C.
(i) Discussion of reorganization of city government.
(j) Discussion of how new administration would affect politics in District.
(k) Discussion by opponent of D.C. freeway system.
(l) Discussion of local welfare programs.
(m) Discussion of pollution of Potomac River with Sen. Tydings.
(n) Discussion of discriminatory administration of justice.
(o) Discussion of local and national prison facilities.
(p) Discrimination faced by juvenile offenders.
(q) Program promoting drive to employ needy youth in District.
(r) Discussion of job opportunities by an author.
(s) Discussion of success of school for writers in Watts area.
(t) Discussion by Urban League official on guidelines for use of firearms by police.
(u) Discussion of police-community relations featuring Julius Hobson and Asst. Chief of D.C. police.
The licensee also points to the numerous ABC network programs featuring programs of special interest to Black people, details numerous editorials presented by the station which have a special significance to the area Black community, and states (with exhibits) that its regularly scheduled programming has realistically included Black persons representing all walks of life. In their December 1969 Reply, the Petitioners reiterate that the Black community depends to a great extent upon television as a source of news and information, and thus television [*324] must be responsive to their needs and interests. They assert again that WMAL-TV is held in low esteem in the Black community in the District of Columbia, and attack the statistical bases of the licensee's reports to the contrary. Blacks in Programming
11. Petitioners next assert that the appearance of Black people on Station WMAL-TV, "... both by their numbers and prominence of their roles, is still insignificant compared with their proportion in the population of the prime viewing area...." This is alleged by the Petitioners to be the result of either deliberate exclusion or indifferent oversight. In addition, Petitioners allege that Black persons who are presented on WMAL-TV are not "the type of Black [figures] with whom the great majority of the Black audience can strongly identify and relate." That WMAL-TV allegedly fails to regularly feature Black persons in its commercials is also complained of by the Petitioners.
12. The licensee replies that Black persons have appeared on Station WMAL-TV on numerous occasions, on news, public affairs and network programs. It points to the programs listed above as examples of programs on which Black persons have appeared, and lists examples of other Black individuals appearing on locally produced programs featuring interview and discussion type formats. As to commercial matter, the licensee states that Black persons appear regularly on commercials not prepared by the station. In the past three years, the station has produced two commercials over which it had production control. In one, no actors were used; in the other, one of the two actors used was Black.
Public Service Announcements
13. The Petitioners allege that the licensee has failed to present public service announcements "... by and on behalf of local community organizations which represent and serve to advance the interests of members of the Black community." Petitioners also allege that the licensee has refused to present requested announcements by such organizations, and submits as evidence thereof an unsigned memorandum from the Neighborhood Consumer Information Center contending that two letters (March and July 1969) sent to WMAL-TV requesting public service announcements were not answered.
14. The licensee replies (with an affidavit of the Program Manager at WMAL-TV) that the television station has never received any request for public service announcements from the Neighborhood Consumer Information Center. A letter from this organization dated August 5, 1969, was sent to WMAL radio, and the licensee states that announcements for the Center "are being scheduled at the present time for broadcast on WMAL (AM)." The television station has offered to present an announcement for the Center on WMAL-TV. Attached to the licensee's response is a listing of public service announcements broadcast during random periods by the station. Included are announcements (amounting to 41% of the total, according to licensee) which relate directly to inner city needs or matters of specific interest to the Black community. Examples of programs promoted are: Unity House, D.C. Health and Welfare Council, Youth Opportunity, Urban [*325] League, VISTA, Job Corps, Downtown Progress, D.C. Teachers, Housing and Urban Development, Summer Youth Program, Police Boys Club, Junior Village, Head Start, Equal Employment, and D.C. Food Stamp Program. Petitioners in reply challenge the licensee's statement that it has broadcast service announcements which represent and serve to advance the interests of members of the Black community. They contend that their allegation was that the licensee has not presented such announcements "by and on behalf of local community organizations," and that its response is accordingly unresponsive to the charge.
15. Petitioners contend next that the licensee has devoted an insufficient amount of broadcast time to religious programming, a fact which they allege is contrary to the public interest because of the particular significance that religion has for a great number of the Black people in the District of Columbia. Petitioners also complain that WMAL-TV has "compounded its offensive conduct" by failing to present a substantial amount of religious programming featuring Black churches, choirs and ministers. The licensee, in its October 1969 Opposition, contends that it broadcasts a sufficient amount of religious programming on WMAL-TV. It points out that it broadcasts five regularly scheduled religious programs: two weekly, locally produced programs, a four minute daily message broadcast at sign-off and sign-on, a weekly series produced by the Salvation Army and a weekly series produced in Missouri. It further states that it has not excluded Black ministers from the religious programming, and points out that Rev. Channing Phillips appeared on one program on several occasions between October 1966 and April 1967. Nine other Black clergy and laymen are listed as having appeared (dates not specified) during the license term. Negro art, poetry and music has, according to the licensee, been used on one of the locally produced religious programs. A local Black minister has appeared on the devotional program, and one of the locally produced weekly programs has two permanent churchmen only. The licensee states that issues of relevance to the Black community are often discussed on the programs produced by outside sources. In their Reply, the Petitioners reiterate the charges that the licensee's religious programming fails to fulfill the needs and interests of its Black viewers, and points out that the licensee's response shows a general failure of Black ministers and lay individuals to be presented on WMAL-TV's religious programs. They further reassert that the amount of religious programming broadcast on WMAL-TV (calculated now to be approximately 2.02% of the broadcast time) is minimal and contrary to the public interest.
Presentation of Black Problems and Feelings
16. Petitioners list a number of problems which they claim are unique to Black persons today and which set them apart from other Americans. They then state that the licensee "has made almost no effort to portray Black problems and feelings to its audience." They state that there is no regular program on WMAL-TV dealing with these problems, that the licensee's only attempts in this area have been documentaries which do not get to the heart of the problems, [*326] and that any attempt to deal with the problems has been done with lack of understanding and insight. The licensee asserts that its general programming, detailed above, has dealt on numerous occasions with Black problems and feelings. Some of the specific locally produced programs in this area (and involving certain of the Petitioners) are, according to the licensee, a discussion with Rev. Fauntroy on the mood of the city after the civil disorders, an interview with Mr. Jones regarding his approach to youth programs, an interview with two American University students who took a course in Black culture and social problems, a discussion with Mrs. Harris about the problems dealt with by the Human Relations Council, and news vignettes featuring Mr. Cassell and the Chairman of the Emergency Committee on the Transportation Crisis. The licensee denies that it has dealt with the problems in an insensitive manner, and points to the fact that WMAL-TV's General Manager of News and Public Affairs planned and headed a panel which dealt with the responsibility of media in civil disturbance coverage.
Presentation of Black Cultural Experience
17. Petitioners next state that Station WMAL-TV has failed to present "The Black Cultural Experience" to its audience, both Black and White; programming to which the audience is allegedly entitled "under any reasonable definition of the public interest." Petitioners cite the findings of the Kerner Report (Report of the National Advisory Committee on Civil Disorders) that broadcast media have not shown an understanding or appreciation of Negro culture, thought or history, and state that WMAL-TV's failure in this respect is contrary to the public interest. The licensee in response states that Petitioners' charges in this respect lack specificity, but that it has broadcast numerous programs related to Black heritage or culture. Among the locally produced programs cited by the licensee were:
(a) An April 1969 discussion of Ghanaian films, foods, dances and drummers presented by a member of the Embassy of Ghana.
(b) A January 1969 program with inner city children as guests, which showed exhibits at the Corcoran Gallery of Art related to Africa.
(c) A program filmed at the Islamic Mosque in December 1966 where discussions were held with children and teachers of Muslim faith.
(d) An August 1969 news story featuring a film report on the American Soul Celebration.
(e) A May 1967 program which included a member of the Washington Woman's Council of the African-American Institute. Also shown was a demonstration of how to wrap an African headpiece.
(f) A January 1967 program in which a Nigerian designer displayed his African fashions.
18. Petitioners allege that only 12 of the 190 persons employed by Station WMAL-TV are Black, that of these six hold custodial positions, and that this hiring of only 3% Black non-custodial personnel in a city which is more than 70% Black shows a shocking and blatant discrimination in hiring, clearly contrary to the public interest. A more substantial employment of Black persons, according to Petitioners, [*327] would ensure a more accurate portrayal and reflection of Black life and existence. The licensee states that the Petitioners' statistics in this charge are incorrect, and as evidence thereof filed a copy of an Employer Information Report (as of May 27, 1969) showing that there were 15 Black persons (of a total of 223) employed by The Evening Star Broadcasting Company. Since then, the number has allegedly increased to 22 full-time and two part-time Black employees. The licensee also submits that the Petitioners' chart showing it as employing a smaller percentage and number of Black persons than the three other Washington VHF stations is erroneous. According to its statistics, the licensee ranks second of the four VHF licensees in the District of Columbia with reference to the number of Black employees. No revised percentage statistic is given. The licensee finally contends that most of its Black personnel (11 of the 15) listed on the Report are professional, technical or office workers.
Misrepresentation of Blacks and Blackness
19. Petitioners further allege that "... WMAL-TV has in numerous ways falsely and misleadingly portrayed members of the Black race or otherwise associated blackness with undesirable attributes." Examples of this alleged failure include the showing of cartoons which depict Black figures as villains, the presentation of older motion pictures which depict Black persons as ignorant, lazy and possessed of strange mannerisms and beliefs, and the showing of old "westerns" where blackness (of clothing and horses) itself is associated with undesirable attributes. In its October Opposition, the licensee does not make any specific rebuttal to this charge of the Petitioners. Its earlier comments (see paragraphs 9 through 12 above), however, might be considered as contradictory to the charge that it has misrepresented Black persons. The Petitioners in reply point out that the licensee made no direct response to the charges in this area. They then contend that the licensee's cartoons, with the identification of Black figures in violent situations as evil characters, encourages viewers toward violence, particularly that which is directed against Blacks. The Petitioners assert that the licensee has broadcast an excessive amount of violent programming, and attach a monitoring study of the Friendship United Methodist Church in Falls Church, Virginia, which criticizes WMAL-TV for the violent programming broadcast, especially during children's viewing hours. n6 Petitioners accordingly request that the Commission designate an issue on the degree of violence in the licensee.s programming and the licensee's alleged misrepresentation of Blacks and blackness.
n6 This monitoring study is the result of a "Rate and Write" project sponsored by the Friendship United Methodist Church of Falls Church, Virginia, a copy of which can be found in the Reply to the Opposition, Attachment M.
WMAL-TV Performance in General
20. The Petitioners, citing a recent study of 32 mid-Atlantic television stations conducted by the Institute for Policy Studies, state that "... WMAL-TV fails to adequately serve the public interest in such vital areas as news programming, public affairs programming, local and regional news, and in expectations and indications for improvements in these areas." They point out that WMAL-TV presented [*328] a lower amount of news and public affairs programming (both in percentage of broadcast time and in actual time) than the other three Washington VHF stations. n7 The licensee proposed to devote 35% of the news time to local news, an amount lower than any of the other three VHF stations. The percentage of WMAL-TV news programming has decreased since 1963, according to Petitioners, and although the public affairs programming has increased by 0.18%, this increase is less than the other Washington VHF stations. Petitioners state that the licensee's composite week shows more entertainment programming than any of the other Washington VHF stations, that this percentage has increased since 1963, and that this increase in entertainment in the face of the alleged increased need for public affairs programming is contrary to the public interest. Finally, Petitioners point out that WMAL-TV devoted less time (2 hours and 30 minutes) during the composite week to locally originated prime time programming than any other Washington VHF station. The above statistics for WMAL-TV were also compared to all other television stations in the mid-Atlantic region, and after an over-all ranking process described in the study, a comparative value was assigned to each station. Of the 32 stations involved, the study ranks WMAL-TV as tied for 25th place in over-all programming service. Petitioners allege that this failure to adequately program on an over-all basis is even more "blatant" when the resources available to the station are considered. In terms of program improvement between 1963 and 1969, Petitioners cite the study's finding that Station WMAL-TV ranked 27 out of the 28 television stations considered. Accordingly, Petitioners request that a hearing issue be designated to determine if WMAL-TV's "drastic curtailment of service" is consistent with the community needs of the District of Columbia.
n7 The renewal application composite week statistics are (in hours and percentage of overall programming):
21. The licensee makes several comments on the programming statistics reported in its renewal application and used by Petitioners in the ranking of the mid-Atlantic television stations. First, it claims that its composite week news programming is understated because it does not include two news programs which have been regularly presented since September 1968. The revised figure is said to be 7.2% of the programming time devoted to news. The licensee also states that stations cannot be accurately compared in the area of public affairs programming. Licensees classify programs somewhat differently, according to the licensee, and some stations allegedly log as public affairs programs the discussion-interview type of program which WMAL-TV classifies as "other discussion." Specific examples of this variance in classification among the mid-Atlantic television stations are given. The licensee challenges the "entertainment and sports" statistics used by Petitioners, and states that the locally originated prime time programming does not include its half-hour 5:30 p.m. news program, which (because of the other news programs available) better [*329] serves the public interest than would a later news program. Finally, the licensee points to a study prepared for it by the Resource Management Corporation. This study criticizes certain of the criteria used by the Institute for Policy Studies, and undertakes a new ranking of the mid-Atlantic television stations. Using "new sports and public affairs data" for WMAL-TV, using absolute hours (instead of percentages) for news and public affairs programming, and deleting entertainment and sports and local and regional news as criteria, it ranks WMAL-TV as 7th in composite week performance, as opposed to the ranking of tied for 25th place as computed by the Institute for Policy Studies. In their December 1969, response, the Petitioners filed a critique of the Resource Management Corporation study prepared by the Institute for Policy Studies. In short, the IPS reaffirms its original findings and the bases used in its comparison of mid-Atlantic television stations. It rejects the "revised criteria" employed by the RMC, which criteria led to WMAL-TV being ranked 7th of the 32 stations compared in over-all performance.
Concentration of Media and Local Control
22. Finally, Petitioners contend that it would be contrary to the public interest to renew the WMAL-TV license because "... it would contribute to and increase the tremendous concentration of control in the broadcast media, particularly relating to the Evening Star Broadcasting Company, and generally to corporate entities in the District of Columbia and the nation." After pointing out the ownership holdings of the licensee's parent corporation (see paragraph 2 above), Petitioners allege that if the WMAL-TV license is renewed, there will be no opportunity for a VHF station in the District of Columbia to be subject to "local and independent control and ownership." The problem of corporate influence and control, according to Petitioners, is even more serious in the District of Columbia than elsewhere because of the numerous "decision makers" residing within the metropolitan area. In response to the Petitioners' allegations in this area, the licensee points out that there are 44 daily and weekly newspapers serving the Washington Metropolitan area, that The Evening Star has a competing newspaper, that there are six commercial television stations licensed to the District of Columbia and that its radio stations compete with 36 other AM and FM stations. It denies that renewal of the WMAL-TV license would decrease media competition or local control.
Opposition to Licensee's Preliminary Statement
23. In its Opposition to Petition to Deny, the licensee states that the Petitioners' allegations should be evaluated against is long record of responsibility as a trustee of broadcast licensees. Petitioners request that the Commission not consider any such record, alleging that the licensee must rely on its performance during the renewal period. Otherwise, its past grants of licenses would, according to Petitioners, afford the licensee some special privilege to operate a television station -- a conclusion contrary to the Communications Act. Thus, they request that the Commission not consider the licensee's past receipt of unopposed renewal grants.
[*330] THE AMENDMENT
Amendment of Section IV-B
24. On May 12, 1970, after all the pleadings had been submitted, the licensee filed an amendment to Part I, Section IV-B of its renewal application pursuant to Section 1.522 of the Commission's Rules and Regulations. In a cover letter attached to the amendment, the licensee stated that the purpose of the amendment is to supply "additional information concerning efforts of The Evening Star Broadcasting Company to ascertain community needs and problems, and results from the Commission's recent clarification of ascertainment requirements as set forth in the proposed Primer on Ascertainment of Community Problems." The amendment contained: (1) a description of WMAL-TV's service area; (2) the methods used in ascertaining the community needs and a list of community leaders who had been interviewed; (3) a list of "typical and illustrative programs" which WMAL-TV proposes to carry in order to respond to the community problems and a number of special public affairs programs it had broadcast over the previous six month period; (4) a socio-demographic study of the Washington, D.C. area; (5) the notes resulting from interviews with District of Columbia, Maryland and Virginia leaders; and (6) the results of a random audience survey. On May 15, 1970, the Commission wrote to the petitioners inviting them to respond to the amendment by May 22, 1970. The petitioners submitted, on May 18, 1970, a Motion for Extension of Time to reply to July 15, 1970, which was granted by Commission action on June 3, 1970 (released on June 4, 1970).
Petitioners' Motion to Strike and Remove the Amendment
25. On May 26, 1970, the petitioners filed a Motion to Strike and Remove addressed to the Chief of the Broadcast Bureau requesting that he strike and remove from consideration the licensee's May 12 amendment and in the alternative that he strike all material relating to the licensee's broadcast performance after October 1, 1969, and all material relating to circumstances or events occurring after September 30, 1969, that affect WMAL-TV's pending renewal application. These requests were based on the contentions that: (1) the May 12 submission was not an amendment, but a supplemental pleading filed without Commission approval and therefore in derogation to Section 1.45(c) of the Commission's Rules and Regulations; and (2) even if accepted as an amendment, much of the material contained in the May 12 submission relates to "circumstances surrounding the 1972 licensing period rather than the present licensing period within which this case has arisen, and therefore, such material is inapplicable and cannot be so considered." The petitioners, in their second argument above, contend that a licensee must be judged on the basis of his performance over the three-year license term and any programming presented during the hold-over period (the period beginning with the license expiration date and ending with the date final action is taken on the renewal application) cannot be considered. The Motion to Strike and Remove was initally denied by the Chief of the Broadcast Bureau on June 11, 1970. A petition seeking reconsideration of this action was denied in a Memorandum Opinion and Order adopted [*331] on August 14, 1970, and released on August 17 (24 FCC 2d 735). In denying the petition for reconsideration we stated that this action was being taken without prejudice to consideration of the substantive arguments made therein when the matter comes before us for decision. The petitioners were also given an additional twenty one (21) days to respond to the licensee's amendment.
Petitioners' Comments on May 12 Amendment
26. On September 4, 1970, the Petitioners submitted their comments on the amendment filed by the licensee. They reiterate their contention that the material contained in the licensee's amendment is invalid and should be stricken as material which is improperly within the realm of Commission consideration in this case. Petitioners also contend that the licensee failed to direct its attention toward the residents of its principal community, the District of Columbia, and this failure is reflected in the licensee's initial ascertainment efforts. The licensee's amendment acted, in the eyes of the Petitioners, as a tacit admission by the licensee that its initial ascertainment of community needs was improperly directed toward the suburbs at the expense of the District of Columbia. Petitioners further contend that although the licensee through its amendment has finally focused its ascertainment efforts on the District of Columbia, the implementation and mechanics of the ascertainment process are inadequate. As examples of this, the Petitioners cite the use of WMAL-AM and WMAL-FM personnel in conducting consultations with community leaders instead of personnel associated with WMAL-TV. Petitioners also state that the personnel conducting the interviews, either consciously or unconsciously, showed a bias in favor of opinions expressed by leaders of the Maryland suburbs. As evidence of this bias, Petitioners state that 85% of the Maryland leaders were contacted personally whereas only 69% of the District of Columbia leaders were interviewed in person. Petitioners also note that while interviewing Maryland leaders, programming recommendations were recorded 27% of the time, but such recommendations were recorded only 5% of the time with District leaders. In addition, the Petitioners criticize the licensee for engaging an outside firm to provide a random sample to be used in conducting a general audience survey of the metropolitan area. Petitioners also contend that the licensee's reliance on continuing ascertainment through normal contacts made with community leaders by members of its news and public affairs department is misplaced and should be given no weight at all by the Commission. In support of this contention, the Petitioners cite precedent to the effect that "in-person confrontation" with community leaders for the principal purpose of consulting with them regarding community problems is the preferred type of contact. Citing William Penn Broadcasting Co., 16 FCC 2d 1050 (1969) and Virginia Broadcasters, 15 FCC 2d 1004 (Rev. Bd. 1969). In conclusion, the Petitioners again object to the Commission considering any reference in the licensee's amendment concerning programs broadcast after the termination of the 1966-69 license period. [*332]
27. The facts as set forth above by the Petitioners and licensee show a difference of opinion regarding the obligations of a licensee serving a large metropolitan area from a predominantly Black city of license. If these facts, viewed in light of the Communications Act and Commission policy and precedent, constitute a showing that a grant of the WMAL-TV renewal application would be prima facie inconsistent with the public interest, convenience and necessity, the application must be designated for hearing. Our findings with respect to the issues raised are set forth hereafter. First, with respect to programming for Blacks (see paragraphs 9 and 10 above), we emphasize that many types of programming cannot be broken down into that for Black people and that for others. Were the Commission to require such a breakdown of programming according to the racial composition of the city of license, we would effectively be prohibiting the broadcast of network and other nationally presented programming. Without addressing ourselves to the legality of such a requirement, it is sufficient to say that such "separate programming" is not feasible. See also our discussion of this matter in Capitol Broadcasting Co., 38 FCC 1135 (1965). Petitioners assert, however, that the special problems of the District of Columbia (problems enumerated in the Petition to Deny) give rise to a need for specific programming designed to meet the needs and interests of the community. With this contention there is no dispute, but we are of the opinion that the licensee has, by the programming noted in the foregoing paragraphs and in its Opposition, clearly shown that it has broadcast numerous programs which are of particular interest to the District of Columbia's majority Black population. These programs have dealt with both national and local problems, and the licensee has a regularly scheduled, locally produced public affairs program dealing with community and national problems. In addition, we consider noteworthy the fact that the licensee has regularly editorialized (with the accompanying requirements of compliance with the fairness doctrine) on matters of immediate concern to all residents of the District of Columbia. Finally, as to the matter of the licensee's esteem in the District of Columbia's Black community, we point out that the Commission has never taken punitive action against a licensee on the basis of a popularity poll -- and we see no reason to so do now. n8
n8 In so stating, we do not make any finding as to whether the licensee or the Petitioners are correct in their characterizations of WMAL-TV's relative popularity.
28. Petitioners' allegations about Blacks in the WMAL-TV programming (see paragraphs 11 and 12 above) do not convince us that a substantial and material question of fact has been raised with respect to the licensee's action in this area. It is significant in this respect that Petitioners do not allege any instance where the licensee has refused to broadcast programming because of the presence of Black persons [*333] in that programming. n9 We cannot agree with the conclusionary statement that the licensee's alleged failure to present Black persons on WMAL-TV in their proportion to the District of Columbia population is either "deliberate exclusion or indifferent oversight." The fact that Petitioners believe that the Black persons presented on WMAL-TV programming are not the type to which they can "relate" does not warrant action by the Commission, since this factor is highly subjective in nature and is incapable of being analyzed in relation to the licensee's over-all programming record. We do note, however, that in recent years there has been an increasing appearance of minority group people on television, both in commercial matter and on other programs, and that these people represent many aspects of American society. In sum, we cannot conclude that a substantial question has been raised with respect to whether the licensee has inaccurately portrayed the existence of a Black person in today's society, and we are of the opinion that the licensee has not abused its discretion in this area.
n9 A complaint was filed against the licensee on March 13, 1970, on behalf of the Back Alley Theatre, Inc., charging that the licensee had refused to broadcast a scene from a play and that the rejection was racially motivated and discriminatory. The licensee denied that its refusal to broadcast the scene was racially motivated and the Commission informed Mr. Albert H. Kramer of the Citizens Communications Center, Washington, D.C., who filed the complaint on behalf of theater group, that without "extrinsic evidence going to a policy inconsistent with the public interest... the Commission will not intervene in the programming process of a licensee...." (Letter of June 4, 1970, FCC 70-594).
29. We are also of the view that the Petitioners have raised no question of fact regarding the licensee's broadcast of public service announcements. The licensee has, in our opinion, successfully rebutted the inference that it neglected to present a public service announcement requested by the Neighborhood Consumer Information Center (see paragraphs 13 and 14 above), the only specific allegation made in this area. A licensee is afforded wide discretion in this area of its programming, and the response of the licensee herein as noted above rebuts any allegation that it has abused its discretion. Thus, Petitioners' request for a hearing issue respecting this matter will be denied.
30. Petitioners requested (see paragraph 15 above) that the Commission designate hearing issues to determine the adequacy of the WMAL-TV religious programming and whether the licensee has failed to broadcast an adequate amount of religious programming featuring Black individuals and churches. The Commission has never held a licensee to a stated percentage of religious programming, however, and wr are of the opinion that the amount broadcast on WMAL-TV (approximately 2.02%, according to Petitioners) is well within the licensee's discretion. As to the allegation that there is insufficient Black participation in the WMAL-TV religious programming, we note that there is no evidence to support the inference that the licensee has consciously excluded members of the Black community from participating. As the facts set forth in paragraph 14 above show, Black clergymen have appeared on "Bible TeleCourse," although not apparently in the ratio corresponding to the District of Columbia Black population. "Concept" is not a revolving program, and the fact that neither regular minister is Black does not, in our [*334] view, raise a material and substantial question of fact with respect to the licensee's religious programming.
31. As to the Petitioners' allegations regarding the licensee's presentation of Black problems and feelings and the Black cultural experience (see paragraphs 16 and 17 above), we cannot agree that these matters need be explored in the hearing process. The licensee relies on its programming as set forth in the application and Opposition to Petition to Deny as rebutting the charges that it has failed to broadcast the type of programming felt by the Petitioners to be inherent in the public interest standard. The charge that the licensee's documentaries dealing with Black problems have lacked understanding and insight is essentially a value judgment of the type not decide by this Commission. Instead, we here look to the licensee's programming on an over-all basis, and conclude that the charges set forth by Petitioners in these areas do not raise a material and substantial question of fact respecting the licensee's operation.
32. Petitioners allege, but we do not agree, that the licensee is guilty of a "shocking and blatant racial discrimination in employment." The statistics furnished by the licensee and set forth in paragraph 18 above (and not contradicted in Petitioner, Reply to Opposition to Petition to Deny) show that the Evening Star Broadcasting Company has a substantial number of minority group employees. Whether the other Washington, D.C. VHF stations have a percentage of Black employees greater than that of WMAL-TV is not a pertinent factor here, as we concern ourselves with the licensee's individual compliance in this area. In our Report and Order in Docket No. 18244, Nondiscrimination Employment Practices of Broadcast Licensees, 18 FCC 2d 240 (1969), we stated that:
Therefore, while not every complaint of an isolated action, even if substantial, will warrant deferring a renewal or designating a renewal application for hearing, renewal will not be appropriate where there is a pattern of substantial failure to accord equal employment opportunities. Id. at pp. 241-242. (Footnote omitted.)
Here, we are not faced with a "pattern of substantial failure to accord equal employment opportunities." Indeed, there is no allegation that any person has been denied or discouraged from applying for employment by the licensee because of his race, and the licensee does not evidence an overall neglect of its responsibility under Section 73.680 of the Rules to exclude every form of prejudice. Thus, the Petitioners' request that a hearing issue be designated with respect to the licensee's employment practices will be denied.
33. We are unable to conclude that Petitioners have raised a substantial and material question of fact with respect to the allegations concerning the alleged misrepresentation of Blacks and blackness and the presentation of violent programming. We recognize that certain viewers will object to programming broadcast by a licensee, and we have in the past renewed licenses over the objections of individuals complaining that the broadcast matter served little value. See, for example, Pacifica Foundation, 16 FCC 2d 712 (1969). Petitioners' allegations in this sensitive area must be read in light of Section 326 of the Communications Act of 1934, as amended, (47 U.S.C. 326) which prohibits the Commission from exercising the power of censorship. [*335] We have detailed elsewhere in this Memorandum Opinion and Order the programming presented on WMAL-TV by the licensee, and viewing this programming as a whole we are of the opinion that the licensee has acted within its discretion. Thus, Petitioners' request for a hearing issue on the violence and misrepresentation of Blacks and blackness charges will be denied.
34. With respect to the allegation that WMAL-TV has, on an overall basis, failed to present adequate programming in the areas of news, public affairs and local programming (see paragraphs 20 and 21 above), we see no grounds for Commission action based upon the Institute for Policy Studies report. n10 The Commission has never made a public interest determination on the basis of comparative rankings, and we do not intend to do so now. To do so would unduly penalize at least one renewal applicant in every period, regardless of its individual performance. The Communications Act requires that the Commission examine each application to determine whether a grant thereof would serve the public interest, and such a determination must be made on the basis of the licensee's individual performance during the renewal period, regardless of what programming percentages have been compiled by other local stations. We cannot take the position here that a low ranking in a particular survey demonstrates that a grant of the renewal application would be prima facie contrary to the public interest. The licensee's past and proposed programming category percentages as set forth above reflect, in our opinion, operation within its discretion in this area. Thus, without discussing the merits of the Institute for Policy Studies study or the Resource Management Corporation rebuttal, and without making a finding as to the relative ranking of WMAL-TV in the mid-Atlantic area, we will deny the Petitioners' request that a hearing issue be designated.
n10 The full text of this study may be found in the Commission's Reports at 21 FCC 2d 69 (1970).
35. The Petitioners' comments with respect to concentration of control of communications media and local control are insufficient to support an issue in hearing. Petitioners state that renewal of the WMAL-TV license will preclude a local group from obtaining a VHF station in the District of Columbia, but we note that there was no application filed in accordance with the Commission's Rules for operation of a television station on Channel 7. To grant the relief requested here by Petitioner would be to discriminate against the licensee for no reason whatsoever, and in favor of some unnamed person or group which desires a license to operate a VHF station. As to the allegation that the licensee has a concentration of control of communications media, the following quote from our opinion in Federation of Citizens Association-DC, 21 FCC 2d 12 (1970) involving Station WTOP-TV in Washington, D.C., is dispositive:
The licensee also cites the existence of numerous other print and electronic sources of news in the area, including many radio and television stations, and other daily newspapers. We believe that, in view of this showing, there is no basis for ad hoc action against the licensee on grounds of undue concentration of control of media of mass communications. Rather, any actions in this area as to a licensee such as this would be appropriate only in the context of overall rulemaking proceedings. Id. at p. 14.
[*336] This type of rulemaking proceeding has been adopted on March 25, 1970, in a Further Notice of Proposed Rulemaking, 22 FCC 2d 339 (1970).
36. The final issue to be resolved is that concerning Petitioners' allegations that the licensee conducted an inadequate survey of the community, and failed to consult with certain community leaders who were listed in its renewal application as having been surveyed. However, since the licensee's amendment of May 12, 1970, was submitted for the stated purpose of confirming and amplifying the licensee's survey of community interests, we must first address ourselves to the acceptability of the amendment and its affect on our consideration of the petition to deny.
37. With regard to the acceptability of the amendment we again make reference to our Memorandum Opinion and Order which was adopted on August 14, 1970, and released on August 17, 1970 (24 FCC 2d 735) and particularly to paragraph 10 of that document. There we quoted from paragraph 4 of our Notice of Inquiry, the Primer, which states: "Applicants whose showings in Part I, Section IV-A and IV-B are deficient can amend as a matter of right prior to designation for hearing; and, if in hearing, petitions for leave to amend may be granted where it is shown that the particular deficiency was due to lack of clarity in policy remedied by the Primer." (20 FCC 2d 880). See also Section 1.65 of the Commission's Rules and Regulations which requires an applicant to amend pending applications in order to keep the information contained therein accurate and complete and Section 1.522 which states that an application may be amended as a matter of right prior to the adoption of an Order designating it for hearing and if a petition to deny has been filed, copies of the amendment should be served on the petitioners. In view of this policy, we reaffirm that the acceptance of the licensee's amendment was not error.
38. Petitioners contend, however, that even if the amendment is accepted, certain material contained therein should not be considered by the Commission in ruling on their petition to deny and in determining whether a grant of the renewal application would be in the public interest. They object to the Commission considering any reference to programs broadcast after the termination of the 1966-69 license period (To wit.: October 1, 1969). This objection was made initially by the Petitioners in their Motion to Strike and Remove, second alternative request, and they have continued to assert this contention in a Motion to Delimit Applicability of the Licensee's Amendment filed on July 9, 1970, in their Petition for Reconsideration, and in other correspondence addressed to the Chief of the Broadcast Bureau and to the Commissioners individually (Request for Special Relief and Statement of Notice III). In ruling on the Petition for Reconsideration, we stated, with regard to the Petitioners' request that we specify what parts of the amendment would be considered:
... the Commission does not believe it appropriate at this stage of the proceedings to sift through the various pleadings and amendments before it and specify exactly what information it will rely on in reaching its ultimate decision. Rather, petitioners may and should point out what they believe should not be considered under Commission policies, and the Commission will, of course, take these arguments into account in its decision. n11
n11 WMAL-TV, 24 FCC 2d 735, 739 (1970). [*337] In accordance with that decision, we shall now consider the Petitioners' contentions with regard to what portions of the licensee's amendment may properly be considered and for what purposes.
39. Petitioners reassert claims originally made in their Motion to Strike and Remove submitted on May 26, 1970. In paragraph 12 of that Motion, Petitioners analogize a licensee in a renewal situation with a licensee faced with a competing application. There are certainly similarities between the showings which must be made by these licensees. They both must show that they have operated in the public interest and will continue to do so. We do not agree, however, with Petitioners' interpretation of the cited authority. The policy statement and cases cited by the licensee stand for the general proposition that a licensee must "run on his record", that is, be judged on the basis of his performance over the entire three year license term. A licensee cannot rely on last minute efforts to upgrade his programming either in the last year of its license term or during the "hold-over" period. Evidence of such last minute improvements in a licensee's operation is not a substitute for the showing a licensee must make with regard to its performance over the entire license term. In this situation, we look for a pattern of operation and when it appears that a licensee has been derelict in its duty over a period of time we give little weight to belated improvements. ( Policy Statement on Comparative Hearings Involving Regular Renewal Applicants, 22 FCC 2d 424 (1970); American Federation of Musicians v. F.C.C., 356 F 2d 827 (D.C. Cir. 1966); Community Broadcasting v. F.C.C., 363 F 2d 971 (D.C. Cir. 1966); South Florida Television Corp. v. F.C.C., 349 F 2d 971 (D.C. Cir. 1965), cert. den. 382 U.S. 987 (1966), Office of Communications of the United Church of Christ v. F.C.C., 359 F 2d 994 (D.C. Cir. 1966)). Petitioners' reference of Section 307(d) of the Communications Act of 1934, as amended, and Section 1.62(a) (1) of the Commission's Rules and Regulations is misplaced. These sections provide that, pending any hearing and final decision on an application for renewal of broadcast station license, the Commission shall continue such license in effect. But, the fact that the licensee has been granted authority to continue operation shall not be construed as a finding by the Commission that the licensee will serve the public interest, convenience and necessity.
40. In their comments filed on September 4, 1970, concerning the amendment, Petitioners attack the Original survey and state that the amendment is a tacit admission on the part of the licensee that its original ascertainment efforts were inadequate. Whether the original survey was adequate is no longer determinative. n12 What we must now consider is whether the two responses to Section IV-B, Part I, taken together satisfy the Commission's requirements with regard to the ascertainment of community problems. Petitioners object to the use of personnel from WMAL-AM and WMAL-FM in conducting interviews. [*338] It appears that all twenty people conducting the interviews were "principals or top-level employees... of the applicant." (20 FCC 2d 880, 882 (1969). Out of the twenty people conducting interviews, five were high-level officers of the licensee, six were associated solely with the television operation, and two were responsible for the television operation in addition to AM and FM operations. The fact that seven of the interviewers are associated with the AM and FM operations of the licensee does not discredit the survey. Likewise, the fact that a greater percentage of suburban leaders were personally contacted and had a greater number of specific programming suggestions noted as a result of their interviews does not show bias in favor of the suburban leaders. Too many other unrelated factors could influence these figures which may not have been within the control of the individual interviewers. The use of an outside firm to conduct consultations with the general public or arrange a probability sample to be used in conducting such interviews is no necessarily prohibited, but in fact the possibility of this use of "out-side" services is recognized in the Primer. (See paragraphs 11b and 12 of the Primer). In conclusion, aside from objecting to the consideration of programming presented after the expiration of the license term, Petitioners contend the licensee's reliance on its continuing ascertainment process is misplaced and should be given no weight. Since the licensee is not relying solely on its continuing contacts with community leaders, we see no reason to rule on the adequacy of this aspect of its ascertainment process taken by itself. Considered along with its other efforts at ascertaining community problems it is adequate.
n12 In so stating, we note that the original response to Section IV-B, Part I, of the renewal application, although not in strict conformance with recent holdings and policy statements regarding community surveys, does indicate that WMAL-TV has fulfilled the overall obligation of a licensee as set out in the Network programming Inquiry (25 Fed. Reg. 7291 (1970)). We refer specifically to the following language found at page 7295 of the Inquiry: "..; the principal ingredient of the licensee's obligation to operate his station in the public interest is the diligent, positive, and continuing effort by the licensee to discover and fulfill the tastes, needs, and desires of his community or service area, for broadcast service."
41. The licensee's amendment to Section IV-B, Part I, of the renewal application taken with its original response to this section is adequate in all other respects. The licensee has complied with the suggested requirements outlined in the Primer as to its ascertainment methods, has described the needs and interests of the community it is licensed to serve, and has listed typical and illustrative programs it plans to carry in order to meet those needs and interests. The section of the licensee's amendment entitled "Typical and Illustrative Programs" does contain references to programs actually broadcast after the expiration of the license term. We do not view the inclusion of this material as improper or unresponsive to question 1 paragraph C of Section IV-B, Part I. This material has been considered for the purpose of determining the adequacy of the licensee's ascertainment efforts and its attempts to be responsive to the needs of the Washington, D.C. area. We therefore find nothing improper in the submission of the licensee's amendment or in the material contained therein and in view of the showing made by the licensee in response to Section IV-B, Part I, of the renewal application, both initially and in the amendment, an issue on the adequacy of the licensee's survey of community interests is not warranted.
42. Each of the individual Petitioners also quarrel with the fact that they as leaders of a segment of the community did not have an "intensive in-person confrontation" with a representative of the licensee concerning the needs of the community. We recognize that each individual Petitioner can be a recognized community leader. But we cannot require applicants for renewal of license to meet and confer [*339] with each and every community leader. What is required is that the applicant contact leaders from each segment of the community it serves. From what has been submitted to us, we are satisfied that the applicant, in this instance, made and was making an earnest effort to contact every segment of the community it serves for the purpose of preparing program material designed to meet the needs and problems of that community. To hold otherwise would substitute form for substance, and permit any self-appointed leader in a particular community to demand and be given a hearing on an application for renewal of license merely because he had not had a personal contact or interview. This could not be condoned under our hearing processes.
43. Finally, based on our review of the renewal application and the pleadings, there does not exist in our judgment any substantial or material question as to whether the licensee deliberately misrepresented facts to the Commission. In Exhibit C of the application, the licensee sets forth the methods it used to ascertain the needs and interests of the community. Part of this process, as described by the licensee, involved contacts and consultations with community leaders. Petitioners contend that the nature of these contacts has been misrepresented by the licensee and that the nature of the association between the licensee and certain community leaders has also been misstated. In support of this contention, Petitioners have submitted affidavits of several individuals who were contacted by the licensee (see paragraph 5, supra). These affiants, in general, state that the licensee's description of its association with them as close, personal and continuing is inaccurate. We do not interpret licensee's use of the phrase "close personal association" in describing its relationship to community leaders as meaning the licensee is personally associated with each leader or is necessarily close to each leader listed. Likewise, we do not read the licensee's description of its association with community leaders as representing a "daily and continuing activity" to mean that the licensee contacts each leader every day. The licensee, in its Reply, has listed the contacts made with these affiants and we believe that the contacts were made frequently enough and on a regular enough basis to be described as continuing. We also find no merit to the contention that the licensee misrepresented the nature of the contacts to the Commission in that it failed to disclose the purpose of the interviews, to ascertain community needs and interests, to those being interviewed. Licensee in its application and the exhibits attached thereto stated that its ascertainment process included contacts made by its news and public affairs staff as well as its editorial staff and station operating executives (Exhibit C, paragraphs a, b and c). Not all contacts were described by the licensee as being direct formal consultations. In fact, the licensee stated that it found being present at forums where community problems were being discussed was a more productive means of ascertaining community needs than a formal survey. The licensee did not rely solely on direct in-person confrontations or a formal survey in its ascertainment process and we do not see that the licensee has either implicitly or explicitly misrepresented this fact.
[*340] 44. Other than the complaints disposed of herein, there are no complaints pending against the licensee of Station WMAL-TV. n13 Based on our review of the licensee's application for renewal of WMAL-TV and of the licensee's operating during the renewal period, n14 we find that a grant of the above-captioned application would be in the public interest, convenience and necessity.
n13 On March 20, 1970, Mr. Albert H. Kramer, on behalf of Mr. David C. Green and the Peace Committee of the Baltimore Yearly Meeting of the Religious Society of Friends filed a fairness doctrine complaint against Station WMAL-TV. This matter was resolved by our letter of June 4, 1970 (24 FCC 2d 171 (1970)). Our ruling is currently being appealed by Mr. Green to the United States Court of Appeals for the District of Columbia Circuit.
n14 We would like to emphasize that our review of the licensee's operation was limited to the three year license period and did not include the "hold-over" programming discussed in paragraph 41, infra, which was considered only for the purpose of ruling on the adequacy of the licensee's response to Section IV-B, Part I, of the renewal application.
45. Accordingly, IT IS ORDERED, That the Petition to Deny the application for renewal of license of Station WMAL is hereby DENIED.
46. IT IS FURTHER ORDERED, That the application of the Evening Star Broadcasting Company for renewal of license for Station WMAL-TV is hereby GRANTED.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
By Memorandum Opinion and Order the Federal Communications Commission today summarily rejects a Petition to Deny the renewal application of WMAL-TV (Channel 7), Washington, D.C., and grants the application for renewal of license as serving the public interest, convenience and necessity. Because the Petition to Deny, filed by sixteen individuals who are broadly representative of the Black community of Washington and its leadership, n1 raises significant and substantial issues regarding the adequacy of the licensee's service to and responsiveness toward that community, which represents 70% of the population of the community of license, I believe that it is incumbent upon this Commission to order that these disputed issues be illuminated by "the crucible of an evidentiary hearing." n2
n1 Specifically, the Petitioners are:
Individual and organization represented:
Julius W. Hobson, Association of Community Teams.
Charles I. Cassell, D.C. School Action Council.
Issac Long, Adams-Morgan Community Council.
Kenneth C. Kennedy, Northeast Neighborhood Council.
John M. Thornton, National Capital Voters Association.
Etta M. Horn.
Douglas Moore, Black United Front.
Channing E. Phillips.
Roena J. Rand, Trinidad Youth Civic Association.
Julius Mack, Black Unitarian-Universalist Caucus.
Willie J. Hardy, Metropolitan Community Aid Council.
William D. Wright, Unity House.
Chuck Stone, Committee for Excellence and Equality in Education.
Calvin W. Rolack, Washington Highland Civic Association.
Marion Barry, Jr., PRIDE, Inc.
Walter E. Fauntroy.
n2 The Citizens Committee to preserve the present programming of the "Voice of the Arts in Atlanta on WGKA-AM and FM" v. Federal Communications Commission, U.S. App. D.C. , F.2d , October 30, 1970 (No. 23, 515), slip opinion, p. 15.
I would designate the following issues for hearing:
The most egregious aspect of the licensee's initial ascertainment, [*341] which is curiously buried in paragraph 43 of the majority opinion, is that the licensee apparently deliberately misrepresented the nature of the association between the licensee and certain leaders of the Black community. The licensee claims that its ascertainment of the views of these community leaders was based on "close personal association" and "daily and continuing activity." Petitioners have submitted affidavits from seven individuals who state that the nature of their association with the licensee was misrepresented. Moreover, as indicated below, this misrepresentation is compounded by the fact that the licensee failed to disclose to these community leaders that the "interviews" or contacts were related in any way to community ascertainment for license renewal purposes. (Petitioners also allege that six individuals who did not sign affidavits are willing to present testimony at a hearing to the same effect.)
The majority's response is essentially to ignore the plain meaning of the licensee's statements. Thus, the majority states:
We do not interpret licensee's uses of the phrase 'close personal association' in describing its relationship to community leaders as meaning the licensee is personally associated with each leader or is necessarily close to each leader listed. Likewise, we do not read the licensee's description of its association with community leaders as representing a 'daily and continuing activity' to mean that the licensee contacts each leader every day. (Emphasis added.)
It does not matter what the Commission majority "interpret... as meaning" or "real... to mean"; "close personal association" means "close personal association," and "daily and continuing activity" means "daily and continuing activity," and petitioner's affidavits state that the contacts and relationships were nothing of the sort. By any plain meaning test, a substantial and material issue of misrepresentation has been raised which should be examined in a hearing.
In addition to the misrepresentation issue, the initial ascertainment was clearly inadequate on other grounds. Although the licensee's area of primary service responsibility has a 70% majority Black population, only 16% of the 130 individuals surveyed were Black. This disparity was sought to be justified by the licensee with the statement that "... its area of primary responsibility includes Montgomery and Prince George's Counties in Maryland, and Arlington, Falls Church, and Fairfax in Virginia." Inclusion of these suburban areas would, according to the licensee's statistics, give a metropolitan racial composition of approximately 75% white.
This approach is unacceptable under long-standing Commission precedents. See, e.g., Commission En Banc Programming Inquiry, F.C.C. 60-970, 20 R.R. 1901 (1960); Minshall Broadcasting Co., 11 F.C.C. 2d 796 (1968); Suburban Broadcasters, 30 F.C.C. 1021 (1961); Public Notice Relating to Ascertainment of Community Needs by Broadcast Applicants, F.C.C. 63-847, released August 22, 1968, 13 R.R. 2d 1903; Sioux Empire Broadcasting Co., F.C.C. 69-218, 16 F.C.C. 2d 995, released March 18, 1969; In re City of Camden, F.C.C. 69-644, 18 FCC 2d 412, adopted June 11, 1969. All of these decisions clearly support the rule that a licensee's principal responsibility is to the community of license; in my opinion, the licensee's blatant disregard of Commission precedent is inexcusable.
[*342] The initial ascertainment statement was also inadequate in that the majority of the "interviews" involved related to the licensee's newsgathering activities in which the licensee's agents failed to disclose that the purpose of the interview was ascertainment of community needs and interests in the context of its license renewal application. See Click Broadcasting Co., 18 F.C.C. 2d 797, 800 (1969).
The pleadings in this case were all filed by December 17, 1969 (the license period expired October 1, 1969). Some five months later, on May 12, 1970, the licensee filed an "amendment" to its ascertainment statement. Petitioners subsequently filed a Motion to Strike, which argued that: (1) the May 12 submission was not an amendment, but a supplemental pleading filed without Commission approval and therefore in derogation of Section 1.45(C) of the Commission's Rules and Regulations; and (2) even if accepted as an amendment, much of the material was not germane because it related to circumstances and events occurring after October 1, 1969.
The Commission majority accepts the May 12, 1970 pleading and all material contained therein as a permissible amendment. n3 I cannot agree. By any standards, that pleading was a supplemental pleading adopting an entirely different approach based on entirely new factual material, and therefore improper under our Rules.
n3 The licensee makes the argument, which the majority apparently accepts, that the "amendment" was in response to our Primer on Ascertainment of Community Problems by Broadcast Applicants, Part I, Section IV-A and IV-B of FCC forms, 20 FCC 2d 880 (December 19, 1969). As pointed out supra, however, the initial ascertainment statement was clearly inadequate under existing Commission precedents. The "amendment" was in response to the challenge from the Black community rather than to any material in the Primer.
Moreover, even if the additional pleading is accepted, the licensee's initial Pleading raises substantial and material issues of sufficient magnitude, particularly the misrepresentation issue, to require that the entire ascertainment procedure be examined through the hearing process, especially since both ascertainment statements fail to satisfy the standards we set forth in City of Camden, supra.
I would therefore designate a hearing issue on the licensee's ascertainment of community needs and interests.
2. Equal Employment Opportunity.
Petitioners allege that only 12 of licensee's 190 employees are black, and that of these six hold custodial positions; thus, in a city with a 70% balck population only 3% of the non-custodial employees are black. The licensee replies that as of May 27, 1969, 15 of licensee's 223 station employees were black and that 11 of the 15 are "professional, technical or office workers."
In our Report and Order in Docket No. 18244, Nondiscrimination Employment Practices of Broadcast Licensees, 18 FCC 2d 240, 242 (1969), we held that "renewal will not be appropriate where there is a pattern of substantial failure to accord equal employment opportunities." I believe that, even if we accept the licensee's statistics, there is a prima facie case of such a "pattern of substantial failure" which should be at least explored in hearing. I would therefore designate the renewal application for hearing on this issue as well.
3. Religious Broadcasts.
[*343] Petitioners ask that the Commission designate hearing issues to determine whether the licensee has adequately served the Black community's need for, and interest in, religious programming; they allege that there is insufficient Black participation in WMAL-TV's religious programming. The licensee broadcasts five regularly scheduled religious programs: two weekly, locally-produced programs, a four minute daily massage broadcast at sign-off and sign-on, a weekly series produced by the Salvation Army and a weekly series "produced in Missouri."
In response, the licensee states that it has not excluded Black ministers from the program, and it lists a total of ten Black clergy and laymen who have appeared on its religious programs during the renewal period.
The Commission majority concluded that petitioners have not raised "a material and substantial question of fact" on this issue, noting that "there is no evidence... that the licensee has consciously excluded members of the Black community from participating."
The fact that there may be no evidence of conscious exclusion does not mean that there is no material and substantial question of fact. It is certainly material whether the licensee has met its obligation to serve the public interest, convenience and necessity, which, we have held, includes a continuing obligation to "seek out and be responsive to a community's needs and interests." n4 And I believe that a substantial question of fact has been raised as to whether the licensee has sought out and been responsive to the Black community's needs for and interests in religious programming if only ten Black clergy and laymen have appeared on religious programs during a three-year period in which a total of some 1719 religious programs were broadcast (4 programs per week times 52 weeks times 3 years; 1 daily program X 365 days X 3 years). I would therefore designate this issue for hearing.
n4 In re City of Camden, released June 13, 1969, FCC 69-644, 18 FCC 2d 412, 419.
In sum, I believe the facts of this case speak so eloquently on their own behalf that there is little I need do to highlight them -- or that the majority can do to paper them over.
I am prepared to let it rest, on the doctrine of res ipsa loquitur.