In Re Complaint by CONGRESS OF RACIAL EQUALITY,
Concerning Fairness Doctrine Re Stations KMOX and KMOX-TV
(JANUARY 15, 1971)
Mr. HENRY THOMAS, Chairman,
DEAR MR. THOMAS:
This is in response to your letter of
December 29, 1970, received by the Commission on January 4, 1971, wherein, in
your official capacity as Chairman of the St. Louis Chapter of CORE, you
request that the Commission permit your organization 'to file a late
application in opposition to the [applications] of... [Stations] KMOX and
In your letter you set forth the substance of CORE's complaint against the two stations, i.e. that they have failed to comply with the Commission's Fairness Doctrine with regard to a CORE-organized boycott of the products of Anheuser-Busch, Inc., based on the corporation's alleged discriminatory hiring practices (you enclose with your letter a copy of a letter from the licensee denying your request for 'free broadcast time commensurate with the amount of time devoted to Anheuser-Busch advertising' and further denying that the stations have failed to comply with the Fairness Doctrine).
Under the Communications Act and the
Commission's Rules and Regulations, formal petitions to deny a licensee's
application for renewal of license will be accepted for filing if tendered by
the end of the first day of the last full calendar month of the expiring
license term (Section 1.580 of the Commission's Rules). In this case the last
day for filing such applications was January 4, 1971, the first business day of
the last full calendar month of the license terms of
Unless there is a compelling public interest basis therefore, we normally deny requests for waiver of our rules primarily because of the disruptive effect on the Commission's process which would otherwise result. Further, although, as you indicate, you did not receive the licensee's denial of your request until December 22, 1970, the stations were required to give notice by broadcast and newspaper publication of the fact that their renewal applications were to be filed and that members of the public could bring facts concerning their operation to the attention of the Commission. In this particular case the required publication began on October 19, 1970 for KMOX and October 18, 1970, for KMOX-TV. It was the Commission's intention that this requirement would allow for the presentation of complaints and the responses of licensees in time to avoid undue delay in the processing of renewal applications.
In weighing your request for an extension of time, we have also considered the fact that, as stated above, the substance of your complaint is an alleged violation of the Fairness Doctrine. The Commission does not normally designate for hearing or defer action on an application for renewal of license on the basis of an alleged Fairness Doctrine violation, and therefore no extraordinary action would be taken to facilitate such a complaint when a delay in processing the application would result. However, once all information has been considered, the Commission may find that a licensee has failed to comply with the Fairness Doctrine, and direct that it do so with respect to the subject of the complaint.
For the reasons set forth above, we have decided to deny your request for an extension of time to file a formal petition to deny the applications for renewal of license of Stations KMOX and KMOX-TV. However, one of your stated reasons for requesting an extension of time is to allow you an opportunity to file additional information concerning your fairness complaint, and you may be assured that such information will be accorded full consideration.
dissenting and issuing a statement; Commissioner H. Rex Lee absent;
Commissioner Houser not participating.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
The Congress of Racial Equality (CORE)
seeks more time to prepare what appears to be a very serious case of denial of
adequate access to airwaves in
There is no sound reason why this
complaint cannot properly be prosecuted in the pending
We should welcome the voices of
opposition, which are essential in helping this Commission prosecute the public
interest. The U.S. Court of Appeals for the District of Columbia Circuit has
sternly instructed this Commission not to turn its back at license renewal time
on legitimate complaints. United
The theory that the Commission can always
effectively represent the listener interests in a renewal proceeding without the
aid and participation of legitimate listener representatives fulfilling the
role of private attorneys general is one of those assumptions we collectively
try to work with so long as they are reasonably adequate. When it becomes
clear, as it does to us now, that it is no longer a valid assumption which
stands up under the realities of actual experience, neither we nor the
Commission can continue to rely on it. (
Now that the Commission has been so often, and so forcefully, instructed by the
courts to get on with the task of public representation one would hope the
lesson would have sunk in.
Within the past few months the same court of Appeals, in Retail Store Employees Union v. F.C.C., No. 22,605 (D.C. Cir., Oct. 27, 1970), remanded to this Commission a case strikingly similar to the one before us. A union wished direct access to explain its position, and complained that the store's commercials constituted a stance regarding the union's boycott. The station refused. A divided FCC upheld the station. The Court reversed. The Court, id. at 11, used the following strong language:
We have previously had occasion to point out
that the Federal Communications Commission was intended by Congress to function
as far more than a mere referee between conflicting parties. See, e.g., L. B.
Wilson, Inc. v. FCC, 130
What appears to be involved in today's case is a serious access complaint concerning CORE's boycott of Anheuser-Busch, Inc., of St. Louis and the KMOX stations' refusal to grant CORE opportunity to counter the substantial Anheuser-Busch advertising campaigns over the stations. This complaint is nearly on all fours with Retail Clerks, supra, and here as well the Commission is equally obliged to 'construe pleadings... so as to raise rather than avoid important questions.' In fact, the Court in Retail Clerks noted that petitions to deny may be the appropriate vehicle for raising and resolving serious access and/or Fairness Doctrine complaints. Retail Clerks, supra at p. 15 (Footnote 50).
The Commission's rush to renewal also
flies in the face of the recent urging from nine members of Congress that the
Columbia Broadcasting System's abortive 'Project Nassau' and the matters
surrounding that dispute 'should be given careful review and attention when CBS
applies for renewal of any of the licenses of its wholly owned stations, either
television or radio.' See, Network News Documentary Practices, H.R. Rep. No.
91-1319, 91st Cong., 2d Sess. 151 (1970), reporting on CBS' involvement in an
aborted filmed invasion of
There is Commission precedent for granting extensions of time to file a petition to deny in exigent circumstances, cf. WSM, Inc., 24 F.C.C. 2d 561, 19 P & F Radio Reg. 2d 476 (1970), and I believe those circumstances are present where, as here, serious First Amendment access questions are raised under the doctrines recently announced in Retail Clerks, supra.