Stations WXUR and WXUR-FM, Media, Pa.
Docket No. 17141 File Nos. BR-4178 and BRH-1320
FEDERAL COMMUNICATIONS COMMISSION
27 F.C.C.2d 565
RELEASE-NUMBER: FCC 71-104
February 11, 1971 Released
Adopted February 3, 1971
BY THE COMMISSION: COMMISSIONER JOHNSON CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT; COMMISSIONERS H. REX LEE AND HOUSER NOT PARTICIPATING.
[*565] 1. The Commission has under consideration: its Decision released on July 7, 1970, denying the application of Brandywine-Main Line Radio, Inc. (hereinafter "Brandywine") for renewal of licenses of stations WXUR and WXUR-FM, Media, Pennsylvania, 24 FCC 2d 18; a petition for reconsideration filed August 6, 1970, by Brandywine; errata filed August 10, 1970, by Brandywine; a supplement filed August 19, 1970, by Brandywine; an opposition filed September 14, 1970, by the Chief, Broadcast Bureau; an opposition filed September 25, 1970, by the Greater Philadelphia Council of Churches, et al., Intervenors (hereinafter "Intervenors"); a reply filed November 2, 1970, by Brandywine; errata filed November 5, 1970, by Brandywine.
2. In the decision which we are asked to reconsider, we held that Brandywine was not entitled to renewal of licenses because of several most serious shortcomings in its operation of WXUR and WXUR-FM -- any one of which we considered sufficient to disqualify it as a licensee. These shortcomings were: (1) failure to comply with the fairness doctrine; (2) failure to comply with the personal attack principle; (3) failure to inform the Commission fully concerning Brandywine's program plans, and failure to adhere to a representation concerning the fair treatment of all religious faiths; and (4) failure to ascertain the needs and interests of the community. We have carefully considered Brandywine's arguments that our decision was erroneous. We are persuaded, however, that our decision was correct, and therefore we must deny Brandywine's petition.
3. The petition for reconsideration is not so organized as to be readily susceptible of orderly treatment, since it intermixes subjects freely. We have decided, therefore, to discuss the points raised in the following order: a claim of unconstitutionality in our fairness doctrine ruling; the evidentiary facets of our fairness ruling; other questions concerning that ruling; the personal attack ruling; the ruling on Brandywine's program representations; the ruling on ascertainment [*566] of community needs; and an alleged lack of clarity in our decision.
I. GENERAL ARGUMENTS
4. Brandywine urges first, in Parts I and II of its petition for reconsideration, that our decision has carried the fairness doctrine to unconstitutional lengths, and will have an inhibiting effect upon freedom of speech -- and particularly controversial speech -- in broadcasting. It is claimed that our decision, in the guise of applying the fairness doctrine, actually is founded upon a disapproval of the content of programs carried on WXUR. Brandywine seeks to sustain this contention by referring to a number of findings by the Examiner on its performance which we did not adopt and to arguments allegedly made by the Broadcast Bureau and Intervenors to the effect that Brandywine carried material which was per se not in the public interest. But our decision was based solely upon fairness concepts whose constitutional validity has been sustained by the Supreme Court in Red Lion Broadcasting Co., Inc., v. Federal Communications Commission, 395 U.S. 367 (1969), and in no sense upon any Commission attitude towards the content of any views expressed over Brandywine's facilities. Our failure to agree with the Examiner is irrelevant to this question, as is the nature of the positions attributed by Brandywine to the other parties but not accepted by us. Our decision in the fairness area was based upon the failure of Brandywine to perform its duty to "offer to make available a reasonable amount of broadcast time to those who have a view different from that which has already been expressed on [its] station," Red Lion, supra, 395 U.S. at 391. There is no constitutional infirmity in this. n1
n1 To the extent that Brandywine relies here upon our holding that fairness was not achieved when one side was subjected to a harassing moderator, we believe that no additional constitutional issue is raised. To insist that both sides be given reasonably similar treatment in this respect is not a forbidden restraint of the station's or moderator's speech. To be perfectly clear, we did not hold that a question and answer or debate format was inappropriate to achieve fairness, or that there was anything wrong per se in harassing conduct by a moderator, but only that Brandywine could not rely for its achievement of fairness upon a program where one side was singled out for harassment.
We do not agree with Brandywine that our finding that fairness could not be achieved in a one-sidedly hostile setting was unfairly considered in the absence of a "warning" ruling. We have recently enunciated the same position in another case, Butte Broadcasting Co., 22 FCC 2d 7 (1970), and we cannot accept the view that it is the sort of ruling which a licensee could not be expected to anticipate in the absence of a prior precedent.
II. THE FAIRNESS ISSUE
5. In granting Brandywine's application for assignment of the licenses, we specifically pointed out its obligation under the fairness doctrine "affirmatively to encourage and implement the presentation of contrasting viewpoints," that is, to "make a positive effort to secure such presentations." Brandywine-Main Line Radio, Inc., 4 Pike & Fischer RR 2d 697, 700 (1965). n2 In our decision herein we found that [*567] despite this admonition, Brandywine had taken no steps to encourage the presentation of contrasting views on several issues of public importance where it had presented one side on each of these issues. n3 The petition for reconsideration contains nothing further of substance on this question but rather contends that there were in fact expressions of contrasting views on these issues on news programs, interview shows and "call in" programs of which we failed to take account.
n2 In its present form the fairness doctrine stems basically from our 1949 report, Editorialization by Broadcast Licensees, 13 FCC 1246, 1250-51, where we stated: "It has been suggested in the course of the hearings that licensees have an affirmative obligation to insure fair presentation of all sides of any controversial issue before any time may be allocated to the discussion or consideration of the matter. On the other hand, arguments have been advanced in support of the proposition that the licensee's sole obligation to the public is to refrain from suppressing or excluding any responsible point of view from access to the radio. We are of the opinion, however, that any rigid requirement that licensees adhere to either of these extreme prescriptions for proper station programming techniques would seriously limit the ability of licensees to serve the public interest. Forums and roundtable discussions, while often excellent techniques of presenting a fair cross section of differing viewpoints on a given issue, are not the only appropriate devices for radio discussion, and in some circumstances may not be particularly appropriate or advantageous. Moreover, in many instances the primary "controversy" will be whether or not the particular problem should be discussed at all; in such circumstances, where the licensee has determined that the subject is of sufficient import to receive broadcast attention, it would obviously not be in the public interest for spokesmen for one of the opposing points of view to be able to exercise a veto power over the entire presentation by refusing to broadcast its position. Fairness in such circumstances might require no more than that the licensee make a reasonable effort to secure responsible representation of the particular position and, if it fails in this effort, to continue to make available its facilities to the spokesmen for such position in the event that, after the original programs are broadcast, they then decide to avail themselves of a right to reply to present their contrary opinion. It should be remembered, moreover, that discussion of public issues will not necessarily be confined to questions which are obviously controversial in nature, and, in many cases, programs initiated with no thought on the part of the licensee of their possibly controversial nature will subsequently arouse controversy and opposition of a substantial nature which will merit presentation of opposing views. In such cases, however, fairness can be preserved without undue difficulty since the facilities of the station can be made available to the spokesmen for the groups wishing to state views in opposition to those expressed in the original presentation when such opposition becomes manifest.
"We do not believe, however, that the licensee's obligations to serve the public interest can be met merely through the adoption of a general policy of not refusing to broadcast opposing views where a demand is made of the station for broadcast time. If, as we believe to be the case, the public interest is best served in a democracy through the ability of the people to hear expositions of the various positions taken by responsible groups and individuals on particular topics and to choose between them, it is evident that broadcast licensees have an affirmative duty generally to encourage and implement the broadcast of all sides of controversial public issues over their facilities, over and beyond their obligation to make available on demand opportunities for the expression of opposing views. It is clear that any approximation of fairness in the presentation of any controversy will be difficult if not impossible of achievement unless the licensee plays a conscious and positive role in bringing about balanced presentation of the opposing viewpoints."
n3 We stated that, "Brandywine failed to establish any regular procedure for previewing, monitoring or reviewing its broadcasts, and thus did not regularly know what views were being presented on controversial issues of public importance. Despite the prima facie evidence presented by the other parties on this issue, Brandywine did not respond with any further review of its treatment of such controversial issues, either for the full license period or any smaller reasonable segment of time. Furthermore, it made no showing of public announcements inviting the presentation of contrasting views at the times the issues in Appendix A (or others) were discussed, nor of any other adequate action to encourage the presentation of contrasting viewpoints on these issues." 24 FCC 2d at 22.
6. The fairness doctrine imposes upon licensees a responsibility on behalf of the public's right to hear contrasting views, and this responsibility is not exercised by leaving the expression of contrasting views to such happenstance as the remarks of an unknown person on a call-in program or to the possibility that a pertinent question will be asked on a general interview program unannounced as dealing with any particular issue and not presenting a guest selected as a responsible spokesman of a contrasting view. Nevertheless, we have reexamined the evidence to which we have been directed by Brandywine (Appendix A to the petition for reconsideration) to determine whether there was an expression of conflicting viewpoints in a reasonable ratio which might make a denial of renewal inappropriate. We do not find such expression. n4
n4 While the petition urges that our characterization of certain of the issues as controversial issues of public importance was merely our "subjective assumption", we think it beyond question that they were all properly so characterized and, with one exception, Brandywine does not in fact argue that they were not. Its insistence upon an "evidentiary predicate" is misplaced in the absence of some indication of substantial doubt.
7. At the outset, we note that once a substantial question of Brandywine's failure to comply with the fairness doctrine was raised by the [*568] showings of Intervenors and the Bureau with respect to fifteen monitored days in two consecutive blocks, n5 the burden fell upon Brandy wine to demonstrate compliance. Compliance is not demonstrated by showing some instances of the expression of opposing views in other time periods without also taking account of any further expression of the original views in such other time periods. In its petition for reconsideration, Brandywine submits only transcripts showing its efforts to present one side (the opposing views) on each of the issues. We have no way of judging what was said on the other side. In the face of the prima facie showing that its treatment of certain issues was unfair, Brandywine clearly was required to show how it encouraged the presentation of opposing views, or at least that the presentation of such views constituted a reasonable proportion of the time devoted to the issues, either throughout the license period or, at the minimum, during some other representative period of time. Clearly, the submission and citation of opposing views selected from throughout Brandywine's license period are insufficient; we cannot make a judgment on such citations n6 because we have no way of knowing that Brandywine was not at the same time repeating the earlier views broadcast on other programs and in the light of the Bureau's and Intervenors' prima facie showing, we have no reason to think otherwise. Therefore, we adhere to our conclusion that Brandywine failed not only to seek some balance of opposing views but to carry opposing views in any fair ratio.
n5 As our decision stated: "The Commission's Broadcast Bureau, which had received complaints that WXUR was not presenting both sides of controversial public issues, undertook to monitor the station for at least eleven consecutive hours a day on eight consecutive days during the middle of the term, and Intervenors also performed such monitoring over a different seven-day period. They demonstrated that WXUR presented one side of numerous issues... during these periods without presenting any opposing viewpoints on any but one of these issues, and with an insignificant presentation on that issue, despite the fact that such controversial issue programming was a substantial part of WXUR's total programming. [Footnote omitted.] This prima facie showing clearly required Brandywine to come forward with evidence to show the manner in which it undertook to comply with the Fairness Doctrine. This it failed to do." 24 FCC 2d at 22.
n6 Despite our determination that Brandywine's one-sided citation outside the monitored weeks do not furnish a basis for finding that it met its fairness obligations, we have reviewed them in detail and conclude that even if they could be properly weighed in the balance, these citations are not plentiful enough to approach a fair balance on the issues. Thus, in its reply to the Broadcast Bureau's exceptions, partly incorporated into the petition for reconsideration, Brandywine points to the "Freedom of Speech" programs broadcast on October 11 and 13, 1965, as including views opposite to those in the broadcasts of such programs as Dr. McIntire's, Rev. Hargis's, etc. On the October 11 program no caller expressed a contrasting view on any of the identified controversial issues. The same is true of the October 13 program, during which, on the contrary, most of the callers spoke in favor of Livezey's opinions and efforts.
On specific issues, our analysis of Brandywine's citations outside the monitored weeks shows the following:
(1) Vietnam War Issue. Since we have determined that Brandywine should be given the benefit of the doubt on this issue, we note only that anti-war views expressed at Bureau Exhibit 28, pp. 27-28; WXUR Ex. 40, pp. 2-4, 6; WXUR Ex. 51, pp. 3, 5, 8; WXUR Ex. 105, pp. 8-9, 10-11; WXUR Ex. 156, p. 20; WXUR Ex. 228, pp. 2-3; and WXUR Ex. 244, p. 4 would be additionally credited in WXUR's favor.
(2) Issues Relating to Federal Administration Policy and Activities. None of the citations outside of the monitored weeks represents a contrasting view on these issues.
(3) Issues Relating to Civil Rights and Liberties. None of the citations outside the monitored weeks represents a contrasting view on these issues.
(4) Issues Relating to United States Foreign Relations. On one of the issues grouped under this heading, that of trade bans with Communist countries, Brandywine's broadcast of an opposing view outside the monitored weeks (Bureau Ex. 28, pp. 23-24) would meet fairness doctrine requirements. However, since the other citations outside the monitored weeks do not pertain to any of the relevant controversial issues, our conclusion as to this group of issues would be only slightly changed.
(5) Issues -- The Proposed New Jersey Group Defamation Law. Among the citations outside the monitored weeks, one, an 18-line comment by Burak at WXUR Ex. 104, pp. 34-35, does represent a contrasting view on this issue. However, in view of the numerous and lengthy views opposing such a law expressed over WXUR (see Appendix A to our decision), it is manifest that Brandywine did not strike a fair balance on this issue.
(6) Issue -- Major News Media. The citation outside the monitored weeks does not represent a contrasting view on these issues.
(7) Issues Relating to the Loyalty of Federal Officials. No citations.
[*569] 8. We have re-examined the material presented during the monitored time periods, and see no basis for a change in our decision that opposing views were not presented in a fair ratio with respect to the several issues. No contrasting views were presented on the issues under the headings of Federal Administration Policy and Activities, Major News Media, Civil Rights and Liberties, the Proposed New Jersey Group Libel Law, and the Loyalty of Federal Officials.
9. With respect to the foreign relations issues, we believe that one of the citations to the monitored weeks proffered by Brandywine should be given some weight. At Bureau Exhibit IF, p. 199, Brandywine broadcast a nine-line news item describing the resentment of the Nigerian government toward an aspect of the United States policy on Rhodesia with which Brandywine agreed. However, given the weight due it, this brief news item can hardly be said to balance a commentator's discussion of approximately 165 lines (Intervenors' Exhibit IC, pp. 179-186). Brandywine has cited no cognizable instances of the presentation of opposing views on any of the other aspects of the subject of foreign relations. Thus, we adhere to our holding that with respect to this set of issues Brandywine failed to comply with the fairness doctrine.
10. On the Vietnam War issue, Brandywine points to brief reports of anti-war viewpoints broadcast on its newscasts during the monitored weeks. n7 We have serious doubts that there was a reasonable forum for contrasting views, even when the newscasts n8 are added to the material cited in Appendix A to our decision (Bur. Exhs. IE, pp. 189-191, and IG, p. 205), but we have determined not to make an adverse finding on this issue in this case in view of the fact that we have previously stated that news items are included in examining for fairness. In the context of opposing views set forth at length by commentators, such complete reliance on ordinary newscasts is obviously inadequate, however, and will not be accepted in the future. In view of Brandywine's treatment of the other issues, n9 our revision of our findings on the Vietnam War issue does not warrant any change in our holding that Brandywine failed to observe fairness.
n7 Among Brandywine's citations we believe the following represent contrasting views: Bureau Exhibits IA, pp. 2, 81, 94, 96-97, 98, 103, 170; IB, pp. 75, 81, 139, 140; IE, pp. 163-164, 247; IF, p. 198; IG, p. 76; IH, pp. 182, 260, 261, 269. Intervenors' Exhibits IA, pp. 1, 66, 101, 146, 149, 151; IB, p. 146; IE, p. 188-189; IG, pp. 116, 160.
n8 The twenty-nine news items listed comprise a total of approximately 200 lines, making the average item about 7 lines in length. In contrast, in our citations in Appendix A to the decision. Brandywine broadcast approximately 1500 lines of "pro-war" views, all of it in extended comments by program moderators; there are 16 examples of such comments, each one averaging over 90 lines in length.
n9 Brandywine's citations under the heading of "Criticism of McIntire's Viewpoints on all Issues" are irrelevant except those related to controversial issues, which have been reviewed above.
11. Brandywine also argues that we erred i n applying the fairness doctrine to Dr. McIntire's "religious" views. This argument is based upon Brandywine's view that our Letter to Mrs. Madalyn Murray, 40 FCC 647 (1965), means that "religious programming" is exempt from the fairness doctrine. This letter does not mean what Brandywine supposes. We held only that we would not disturb a licensee's goodfaith judgment that the "mere broadcast of church services, devotionals and prayers is not the presentation of a controversial issue of public importance within the meaning of the fairness doctrine..." (40 FCC at 647). [*570] We are fully conscious of, and have never attempted to enter, the morass of determining what are religious views. The fairness doctrine extends to all expressions of views on controversial issues of public importance, whether or not they be deemed religious views by some persons. Madalyn Murray, supra, excludes only religious services. Brandywine contends that for us to pierce its claim that Dr. McIntire's programs were devotional, and to decide for ourselves whether or not controversial issues were discussed on these programs, would constitute an unconstitutional abridgement of freedom of religion. We disagree. It is no more an abridgement of freedom of religion than of freedom of speech, an issue already decided by the Supreme Court in Red Lion Broadcasting Co., supra. n10
n10 We refused in our decision to consider "Inter-Faith Dialogue" and the Sunday service of the Media Presbyterian Church as fulfilling fairness obligations because they were religious programs not directed at obtaining contrasting views on controversial issues. Our examination of the transcripts fails to reveal material relevant to the controversial issues discussed in our opinion. We would credit such material, as we have material on the issues contained in other programs not designed to elicit opposing views on the relevant issues.
12. Brandywine claims that we have ignored a good many invitations to opposing spokesmen in determining that it did not comply with the fairness doctrine obligation to seek out and present opposing views. Brandywine mistakes our disagreement with its arguments for failure to consider them. We believe that we have covered this question before, but will reexamine it. (1) We are directed first to Mr. Roper's invitations in Bureau Exhibit 29. With one exception (Bur. Ex. 29-3), these invitations do not ask any of the recipients to discuss any of the issues listed in Appendix A to our decision or give other indication that the recipients were chosen as spokesmen for viewpoints on these issues. (2) Norris's invitations are in WXUR Exhibits 11, 18, 9, 81. Exhibit 18 is a letter of June 21, 1966, to Rev. George W. Linhart of Grace Chapel, Havertown, Pa. Contrary to Brandywine's statement in its pleading, the letter was sent by Roper, not Norris. At any rate, the invitation to appear on "Freedom of Speech" makes no mention of any controversial issue. Exhibit 11, a letter of August 25, 1966, to Mrs. Nancy Silver of the Greater Philadelphia Council of Churches; Exhibit 9, a letter of August 29, 1966, to Mr. Joe Rabkin, counsel for the Greater Philadelphia Council of Churches; and Exhibit 81, a letter of November 2, 1967, to the Office of Communications of the United Church of Christ are not entitled to credit because these letters were sent after WXUR's renewal status was put in doubt. Thus, the new examples cited by Brandywine are insufficient to demonstrate its good faith efforts to comply with the fairness doctrine.
13. Brandywine charges that we disregarded McIntire's invitations to opposing spokesmen because they were not made by the station itself. It should be noted, first, that the primary reason for our disapproval of Dr. McIntire's offers is that "they do not constitute adequate invitations to present contrasting views on the issues" (our reasons for this conclusion are set out at length in footnote 9 to the decision). Brandywine also misunderstands the delegation concept. Certainly if Dr. McIntire had made adequate invitations corresponding to the issues and had succeeded in getting spokesmen with opposing viewpoints to speak on his program, Brandywine would have been able to rely upon this success in complying with the fairness doctrine. However, [*571] the converse does not obtain. Brandywine cannot absolve itself from failure to comply by merely pointing to Dr. McIntire's abortive efforts. Dr. McIntire's inadequate invitations and failure to get acceptances do not discharge Brandywine from its fairness duties. As we stated in the decision, "the ultimate responsibility of compliance with the fairness doctrine rests with the licensee." Brandywine also claims that we have a "double standard" on this matter, permitting network affiliates to delegate their fairness doctrine compliance to the networks but not allowing a similar technique here. However, precisely the same situation that we have outlined above obtains with respect to the network-affiliate relationship: if the network presents both sides of a controversial issue, the affiliates which carry these broadcasts are not obligated to do more; but if the network fails to present opposing views, the affiliate is not thereby excused from its obligation to do so. Thus, there is no inconsistency in our treatment of network affiliates and Brandywine with respect to the so-called "delegation" of fairness doctrine responsibilities, and we adhere to our holding that Brandywine's efforts to obtain opposing spokesmen on controversial issues were inadequate.
III. PERSONAL ATTACK ARGUMENTS
14. Brandywine contends that our judgment that it carried personal attacks without notifying the persons attacked of their right to respond is without evidentiary support and that we have no clear definition of "honesty, character, integrity or like personal qualities" against which to measure Brandywine's actions. However, the Supreme Court has sustained the rules against the charge of vagueness in Red Lion Broadcasting Co., supra, and we think that the attacks made over WXUR (see Appendix B of our decision) were such that no reasonable doubt exists as to their proper characterization. Brandywine further charges that we have not explained why the attacks were not made during exempt news broadcasts. Putting aside the fact that Brandywine does not in fact assert that the attacks were made during bona fide news programs -- something it should do if it believes we were in error -- we think it plain that they were not. Brandywine did not introduce these programs when they were broadcast as newscasts and they consisted entirely of comments not commonly considered to be news reporting.
15. Brandywine also claims inconsistency with our previous personal attack rulings in Station WAVA, 14 Pike & Fischer RR 2d 180 (1968), and In re Complaint by Mrs. Dorothy Healey, 24 FCC 2d 487 (1970). In Station WAVA, we held that the statement that "as the field is now drawn, only Hubert Humphrey, a product of New Deal thinking, and Richard Nixon, a product of the Eisenhower years, probably are incapable of establishing any meaningful liaison with this generation" did not constitute an attack upon the "honesty, integrity, character or like personal qualities" of the named persons. This holding raises no substantial issues of inconsistency when compared with the charges involved here. The holding in Mrs. Dorothy Healey also fails to sustain Brandywine's position. We held there that the personal attack rules were inapplicable because the remarks at issue [*572] were made by a newsman during a bona fide newscast. The Commission further held that there was no violation of the fairness doctrine, taking into account the nature of the alleged controversial issue of public importance (i.e., Mrs. Healey's role as a Communist) n11 and the manner in which it had been presented. We discern no parallel between the two cases and therefore find no inconsistency in our treatment of them.
n11 Since Mrs. Healey is an avowed Communist, the station's naming her as such also did not raise a controversial issue or constitute a personal attack.
16. Brandywine further claims an alleged inconsistency between the personal attack rulings in this case and a staff ruling given Brandywine on May 8, 1969, by the Chief of the Complaints and Compliance Division of the Broadcast Bureau (an unreported letter, C2-231). On March 28, 1969, counsel for Brandywine wrote to the Commission, enclosing material broadcast over the station and asking whether WXUR was required to give reply time to the Institute for American Democracy. The staff response of May 8, 1969, was that a personal attack on that organization had not taken place. n12 In the broadcasts concerned, there was a discussion of the financing of "left-wing" groups by various foundations, and the Institute for American Democracy was accused of "scare mongering" and of having a "juju bag of smear techniques." We believe that the staff's analysis was correct. Although the remarks in question clearly indicate strong disagreement, they do not rise to the level of an attack upon character which triggers the reply requirement. In any event, what is important here is not whether there may be a reasonable doubt as to the correctness of the staff ruling in another situation, but rather whether there was such a doubt about the comments we are dealing with in this case. We do not believe that Brandywine could have had such a doubt; nevertheless, it failed to follow the requirements of the rules.
n12 In the same broadcasts, the Institute of Pacific Relations was said to have "alleged subversive designs." This clearly was a personal attack, and we do not read the staff's response to Brandywine as holding the contrary, since it was not addressed to this question.
17. Brandywine's final contention with respect to the personal attack rules is that we have acted in an unconstitutional, ex post facto manner in applying the rules to it because they were not codified until July, 1967. However, this rulemaking was a codification of existing principles of licensee operation, and no more. Brandywine fails to show any significant difference between the previously enunciated principle and the rules which could have prejudiced or injured Brandywine in any way, and there clearly was no such difference. While putting the personal attack principle in rule form provided a basis for imposing forfeitures for violations (see Memorandum Opinion and Order, 8 FCC 2d 721, 722), there can be no doubt that essentially the same requirements of notice and an opportunity to reply, based upon the same standard, were in effect at the times relevant here, and that failure to comply was pertinent to the licensee's qualifications for renewal of license. We therefore applied the principle to Brandywine here, referring to the 1964 Public Notice embodying it. n13 Insofar as the Examiner may have confused the personal attack principle and the rules, n14 it is clear that we have repaired the error. We fail to understand [*573] Brandywine's related argument based upon our suspension of sanctions for violation of the personal attack rules pending Supreme Court review after the Court of Appeals for the Seventh Circuit had found them to be invalid. (See 15 FCC 2d 32, October 16, 1968.) n15 The Supreme Court subsequently held in Red Lion Broadcasting Co., supra, that the rules were valid. Brandywine appears to suggest that the Court of Appeals cast such doubt upon the personal attack requirements that they could not be applied to it. But there is no more reason to withhold action based upon personal attack violations occurring prior to the Seventh Circuit's decision than there would be to withhold action on violations occurring after the Supreme Court's decision.
n13 "Applicability of the Fairness Doctrine in the Handing of Controversial Issues of Public Importance," 29 Fed. Reg. 10415, 10420-10421.
n14 See footnote 15 of our decision.
n15 We also stated at that time that we would not make a final determination of any pending renewal proceeding until the Supreme Court rendered a decision.
IV. REPRESENTIONS CONCERNING PROGRAM PLANS
18. Brandywine argues that since our application form now requires only program categories rather than a full program schedule, the fact that Brandywine carried programs with different titles from those promised in its application should not be counted against it. Program titles, it urges, have no significance. However, we made clear in our decision that we were concerned with the substance of Brandywine's programs, not their titles. As we stated, "[these] programs, covering controversial issues as they do, are not merely changes in title from the programs deleted from the schedule, which mainly included programs classified as of the 'entertainment' type." Rather than a discrepancy of program titles, we found a willingness to withhold Brandywine's intentions with respect to a substantial amount of programming. Brandywine further argues that we are acting arbitrarily in penalizing it for carrying more news and public affairs programs than it proposed. But it should be clear that the issue is not how many programs in any category Brandywine broadcast, but whether it candidly advised us and the public of its intentions. Ignoring this question, Brandywine furnishes no reason for its failure to keep the Commission advised of substantial changes in its program plans. The fact that Brandywine's application was facing strong opposition indicates the reason for its conduct. n16 Whether our view of its motivation is correct is not determinative. "The fact of concealment may be more significant than the facts concealed. The willingness to deceive a regulatory body may be disclosed by immaterial and useless deceptions as well as by material and persuasive ones." FCC v. WOKO, Inc., 329 U.S. 223, 227 (1946). n17
n16 The petition for reconsideration says that our "assumption" of Brandywine's motivation makes no sense if it would have made no difference to our action if the new programs had been disclosed. Brandywine misses the point. We stated in our decision that it would not have made a difference but that we believed Brandywine was under a contrary impression. Thus, its motivation to conceal its intention to carry different programs was based on its view of our reaction to the facts (a view that it still appears to hold).
n17 Brandywine urges that we mistakenly found Norris to have "falsely testified that all the programs were instituted much later than they actually were." (Petition, p. 27.) However, we did not make a finding of false testimony. We did find that eight programs were instituted shortly after Brandywine took over control, seven of them by the end of the ninth day, and that Brandywine did not fully apprise us of its program plans. We stated that the eight were a partial list, and Brandywine now points out that Freedom of Speech was instituted on June 1, 1965, fourteen days before Christian Crusade, one of the programs we mentioned. We agree that this program may be added to the list, although we were primarily concerned with the seven programs added by the first week in May, immediately after control was assumed by Brandywine.
[*574] 19. Most of Brandywine's argumentation concerning the issue on adherence to program representations consists of broad charges that we have ignored evidence in Brandywine's favor. What Brandywine fails to understand is that our adverse findings are not indications that we ignored Brandywine's evidence but simply indications that, looking at the record as a whole, we judged that Brandywine's evidence as outweighed by contrary evidence. Brandywine also claims that we condemned its use of a two-party rather than three-party, format on Interfaith Dialogue. Our only reference to format occurs at the end of paragraph 26 of our decision, in which we discuss the various interviews held on the program with persons (including Faith Seminary students) whose views were similar to Brandywine's. The reference is in this sentence: "None of these broadcasts complied with the Seminary transfer application representation that the program would consist of 'round-table' discussions by representatives of 'different faiths.'" Obviously what we condemned here was not the format but the failure of Brandywine to live up to its promise to "make every effort" to obtain a varied participation of religious faiths.
V. ASCERTAINMENT OF COMMUNITY NEEDS
20. We found in our decision that Brandywine's failure to make any attempt to ascertain the needs and interests of the area it was serving was an independent ground for denial of renewal. Brandywine contends that this is the first time that we have "ever terminated a license for alleged inadequacy of efforts to ascertain local needs and interests." (Petition, p. 31) Brandywine maintains that since we accepted its showing at the time it acquired the station in 1965 and did not question its showing from then until the time of the decision, it could not have been expected to do more than it had already done. Brandywine also claims that it served every conceivable need of the area and asserts that no one has discovered a need which it did not serve. We believe that nothing in our decision approving the transfer to Brandywine indicated that Brandywine was to be relieved of its duty to make a "diligent, positive, and continuing effort... to discover... the tastes, needs, and desires of [its] community..." n18 There can be no doubt that Brandywine made absolutely no efforts to do so, and that there would be no basis for permitting it to make an inquiry of its listeners' needs and interest at this time, even on the limited ground upon which we have based such permission in other cases -- that changes in Commission standards might have confused a licensee to its detriment. See, e.g., Mace Broadcasting Co., 22 FCC 2d 672 (1970). Brandywine makes general accusations that our standards have changed "[every] few months" but is silent as to how any such changes affected Brandywine in any way. n19 Since Brandywine made [*575] no efforts to ascertain community needs and interests, its claim that it served all of them is incapable of adjudication.
n18 Report and Statement of Policy Re: Commission En Banc Programming Inquiry, 20 RR 1901, 1915 (1960).
n19 Brandywine's citation of Evening Star Broadcasting Co., 24 FCC 2d 735 (1970), is inapposite. In that case, we permitted a renewal applicant to file the amendment allowed as a matter of course before designation for hearing. We took pains not to comment on whether or not some of the evidence contained in the amendment would ultimately prove to be concerned with broadcast performance during the licensee's "holdover period" and would thus be ineligible for consideration. We see no parallel -- and, accordingly, no inconsistency -- between Evening Star and the instant case.
21. Nonetheless, we have decided that Brandywine's failure in this respect should not be disqualifying. Brandywine apparently made no showing of efforts to ascertain the public's needs and interests when it filed its transfer application, and the application form then in use did not require such a showing. The renewal form for AM and FM stations now in use, which does require a showing on this score, was not made effective until November 1, 1966, subsequent to the date when Brandywine filed for renewal of license. While we think it was amply clear that Brandywine had a continuing duty to keep itself informed during its custody of the stations and that it did not do so, we shall not pursue this matter in view of the failure of the applicable form to draw specific attention to it and the failure of our decision granting Brandywine's transfer application to make it quite as clear as we might have that Brandywine's efforts at that time would not be adequate in the future. Accordingly, we have deleted the disqualifying matter of Brandywine's failure to ascertain community needs and interests from the vases of our decision.
VI. RULINGS ON PROPOSED FINDINGS AND EXCEPTIONS
22. Brandywine contends, finally, that our findings are unclear, that a reviewing court would be unable to understand to what extent the parties' proposed findings have been incorporated into our decision, and that we granted and also denied virtually identical proposed findings of the Bureau and Intervenors and proposed findings "indistinguishable in principle" from one another. n20 Our treatment of findings, Brandywine urges, is prohibited by the holding of KFH v. F.C.C., 101 U.S. App. D.C. 164, 247 F. 2d 570 (1957).
n20 Brandywine also objects to our "wholesale elimination of great blocks of the Examiner's findings," but it is clear that we are not bound to accept these findings.
23. In the KFH decision, the court stated:
"Though a specific ruling on each minor exception is not indispensable, the parties and the court should not be left to guess, with respect to any material issue, or to any group of minor matters that may have cumulative significance, which of several alternatives the Commission had in mind. It should make the basis of its action reasonably clear. We cannot find that it did so here. Its statement of reasons comes to little more than this: For one reason or another, all the exceptions not granted are overruled. This court must therefore remand the case to the Commission." 247 F 2d at 572.
Brandywine makes the general charge of lack of clarity, but points to no particular source of confusion in our decision. We believe that the requirement of the KFH decision for a "reasonably clear" set of findings has been met -- our opinion is quite clear as to our findings of fact (and to what extent they differ from the Examiner's) and the legal basis of our decision.
24. With respect to our specific rulings on proposed findings and exceptions, we believe that the fact that our decision thoroughly sets out our own findings in narrative form obviates the necessity for reliance by Brandywine upon the individual rulings to determine the factual bases for our decision. We think that there is no relevant area of doubt; the rest is merely a question of format.
[*576] 25. Brandywine claims that in many instances the Bureau and Intervenors addressed "virtually identical" exceptions to the same findings but the Commission granted the exception of one and denied the exception of the other. Brandywine cites twelve examples of such alleged inconsistencies. First, Brandywine claims that Bur. Exc. 84 and Int. Exc. 98 and 101-103 were treated differently; however, we denied all of these exceptions on the same grounds, namely, "for lack of adequate record support or decisional significance." Second, Brandywine cites Intervenors' Exc. 104-108 but fails to cite any comparable Bureau exception receiving an inconsistent ruling. Seven of Brandywine's citations are clearly not examples of "virtually identical" exceptions: Bur. Exc. 6 and Int. Exc. 4; Bur. Exc. 57 and Int. Exc. 67; Bur. Exc. 76 and Int. Exc. 79; Bur. Exc. 78 and Int. 80; Bur. Exc. 80 and Int. Exc. 81-92; Bur. Exc. 95 and Int. Exc. 136 and 138; Bur. Exc. 97 and Int. Exc. 148. We agree that in three instances we ruled differently with respect to similar exceptions: Bur. Exc. 49 (granted) and Int. Exc. 59 (denied); Bur. Exc. 91 (granted) and Int. Exc. 125 (denied); Bur. Exc. 94 (granted) and Int. Exc. 130 (denied). Accordingly, we are revising our ruling on Intervenors' Exc. 59, 125 and 130 and are granting those exceptions. We wish to make clear, however, that the findings of fact and conclusions set forth in our decision are not affected by this change in ruling and that no new factors have been added.
26. Brandywine also claims that in other instances we "inconsistently granted exceptions which are indistinguishable in principle from exceptions which [we] denied." n21 First, we note that, in describing these exceptions as "indistinguishable in principle," Brandywine apparently concedes that they are distinguishable in other respects. At any rate, we have examined the alleged instances of our inconsistency and conclude that what Brandywine apparently seeks is a detailed ruling on every alleged instance of a personal attack or controversial issue of public importance suggested by Bureau or Intervenors during the course of this lengthy proceeding. We do not believe we are required to make such rulings. We believe it is enough that the instances of controversial issues listed in Appendix A to our decision and those of personal attacks in Appendix B are clear-cut. If as we believe, they are undeniably instances of controversial issues and personal attacks, then we cannot be said to have acted in a confusing manner by singling them out, while not directly addressing ourselves to other alleged instances. We do not believe that anyone who reads our examples of controversial issues and personal attacks by Brandywine will be at all confused as to our standards.
n21 Brandywine cites, as examples: "Int. Exc. 148, 189-198 versus Int. Exc. 152-155, 157-161, 164-172 and Bur. Exc. 97-102."
27. Upon reconsideration, we decide that an adverse finding should not be made with respect to Brandywine's treatment of the issue of the Vietnam War, and that it should not be disqualified for failure to make an adequate showing on ascertainment of community needs. [*577] However, we nonetheless determine that our decision not to renew the licenses of WXUR and WXUR-FM was correct. We stated in that decision that any one of four grounds for denial of renewal -- Brandywine's failure to provide reasonable opportunities for the presentation of contrasting views on controversial issues of public importance, its disregard of the personal attack principle of the fairness doctrine, its failure to adhere to its programming representations, and its failure to ascertain the needs and interests of the community -- would suffice to require denial of these renewals. The slight change in one of the grounds and the deletion of another do not warrant a change in the result of the decision. We conclude, as in our original decision, that Brandywine is not entitled to renewal of licenses of WXUR and WXUR-FM.
28. Accordingly, IT IS ORDERED, That except as reflected in the foregoing opinion, the petition for reconsideration filed by Brandywine-Main Line Radio, Inc., on August 6, 1970, IS DENIED; and
29. IT IS FURTHER ORDERED, That in order to enable Brandywine-Main Line Radio, Inc., to wind up its affairs, IT IS AUTHORIZED TO OPERATE stations WXUR and WXUR-FM until 12:01 a.m., May 1, 1971; PROVIDED, however, That if Brandywine seeks judicial review of our decision released July 7, 1970 (24 FCC 2d 18) and/ or of this Memorandum Opinion and Order, Brandywine is authorized to continue to operate stations WXUR and WXUR-FM until thirty (30) days after the final disposition of such appeal.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTBY: JOHNSON (IN PART)
SEPARATE STATEMENT OF COMMISSIONER NICHOLAS JOHNSON CONCURRING IN PART AND DISSENTING IN PART
The Federal Communications Commission today reaches the right decision in the proceeding now before us, but on only some of the grounds which required denial of the applications. The case comes to us in the form of a petition for reconsideration of the Commission's action last summer which denied the renewal application of Stations WXUR and WXUR-FM, Media, Pennsylvania, stations licensed to Brandywine-Maine Line Radio, Inc.
This proceeding concerns two fundamental issues -- the Fairness Doctrine and Community Ascertainment -- which I believe the majority has not dealt with adequately. Accordingly, I concur in the result, but dissent to the treatment of the fairness and ascertainment issues for the reasons set forth below.
In our decision last June, In Re WXUR-AM-FM, 24 F.C.C. 2d 18 (1970), the Commission denied renewal of the WXUR stations because of Brandywine's failure on four specific grounds: (1) Failure to comply with the Fairness Doctrine in seven respects, including the treatment and coverage of the Vietnam War; (2) failure to ascertain the needs and interests of the local community; (3) failure to comply with the Commission's personal attack rules; and (4) failure to adhere to programming representations made to the Commission.
[*578] The majority denies reconsideration of the denial of the license renewal, but in doing so it substantially softens our original decision by dropping part of ground (1) and all of ground (2) as set out above. This result cannot be squared with our own Commission precedents as they have slowly evolved through the disposition of many other cases involving the Fairness Doctrine and community ascertainment issues.
The majority modifies the Commission's earlier renewal decision by sidestepping the Vietnam War issue. The majority apparently feels that since Brandywine has now produced some evidence that tends to show that it aired certain newscasts dealing with the so-called "dove" position on the war the station's Fairness obligations on this issue need not be carefully examined. What the majority is apparently arguing is this: Since Brandywine is guilty of abuse of the licensee's monopoly of the airwaves on six other Fairness questions, there is no need to be tough as well on the Vietnam issue, especially since there has been coverage of an opposing point of view on this controversial issue of public importance and since the ratio of presentations -- here 7-to-1 in favor of the so-called "hawk" view of the war -- has not usually been important in resolving Fairness Doctrine questions.
Thus, the majority does not deal with the ratio question at all, giving Brandywine the benefit of a considerable leeway.
I see no reason at all to suddenly go soft on the number one "controversial issue of public importance" in this country currently and over the past few years. There can be no serious dispute that a 7-to-1 ratio on views under the Fairness Doctrine in this instance is not adequate. There is precedent for paying at least some attention to the adequacy of the ratio in presentation of contrasting views on questions of public importance. Cf., Banzhaf v. F.C.C., 405 F.2d 1082, 1099 (D.C. Cir. 1968).
More recently, the specific issue of the Southeast Asian War has come to be treated with great sensitivity, and thus the ratio question becomes even more important than in the more routine controversial issues of public importance usually raised under the Fairness Doctrine. See, In re Complaints of the Committee for the Fair Broadcasting of Controversial Issues, 25 F.C.C.2d 283 (1970).
I think it is quite clear that Brandywine has failed to come close to current Commission Fairness standards in dealing with issues involving the War. I would not brush over the issue as does the majority.
The majority retreats from our earlier "law-'n-order" stand on this issue as well -- and again for no good reason.
The rationale for this retreat, apparently, is that the Commission accepted a virtually non-existent community needs showing couched [*579] in the most general terms in granting Brandywine's 1965 transfer application, and also because the Commission did not make clear that a better showing would be required of Brandywine at renewal time in 1966. So the majority concludes that it would not be appropriate to base the disqualification of Brandywine on this factor.
This reasoning ignores two important points: First, the facts of the matter at hand, and, second, our evolving standards on community ascertainment.
The simple facts are that since WXUR totally refused to make any efforts at all to ascertain what its community needs and interests were, it has no way of relating its offered programming evidence to those needs and interests.
It is true, as Brandywine argues, that the Commission's community ascertainment standards have been changing over the past few years -- but this is hardly an adequate excuse for ignoring community ascertainment altogether. This Commission has clearly set out the applicable law in Sioux Empire Broadcasting Co., 16 F.C.C.2d 995 (1969):
... As early as 1960 we had occasion to indicate that "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." Report and Statement of Policy Re: Commission En Banc Programming Inquiry, FCC 60-970, released July 29, 1960, 20 RR 1901, 1915 (1960). (Emphasis added.) The importance of this matter was emphasized in our Report and Order of 1965, amending Section IV of the broadcast application form, where we stressed that "the Commission has an interest in how the licensee discovers the needs of his community and what he does to meet those needs." 1 F.C.C.2d 439, 442 (1965). We again stated in our Report and Order, 5 F.C.C.2d 175, 178 (1966), amending the television application form, that a broadcast applicant must make a "diligent and continuing effort to provide a program schedule designed to serve the needs and interests of the public."
The primary purpose of this policy is to guarantee "that the programming service will be rooted in the people whom the station is obligated to serve and who will be in a much better position to see that the obligation to them is fulfilled, thus lessening the enforcement burden of the Commission." Public Notice Relating to Ascertainment of Community Needs by Broadcast Applicants, FCC 68-847, released August 22, 1968, 13 RR 2d 1903. In that same Public Notice and in Minshall, supra, we have reiterated the elements that must be shown in support of each program proposal. In line with our long standing policy, each applicant is now required to show his consultations with community leaders to become informed of the real needs and interests of the area to be served, the suggestions that he received in those consultations as to community needs, and the specific programs that he has proposed to meet particular community needs, as he has evaluated them.
There is little question in my mind that Brandywine has failed, and failed dismally, in its duty under the standards set out above to ascertain its community's needs for broadcast service.
In sum, I see no good reason in this case to suddenly retreat from our earlier more sensible analysis of the Fairness and Ascertainment issues -- even given the fact that we could still revoke the WXUR licenses on other well-founded grounds.