In Re Application of RADIO STATION WSNT, INC., SANDERSVILLE, GA.
For Renewal of License of Station WSNT, Sandersville, Ga.
Docket No. 19167 File No. BR-3268
FEDERAL COMMUNICATIONS COMMISSION
27 F.C.C.2d 993
RELEASE-NUMBER: FCC 71-230
March 11, 1971 Released
Adopted March 3, 1971
BY THE COMMISSION: COMMISSIONER BARTLEY DISSENTING AND ISSUING A STATEMENT; COMMISSIONER JOHNSON CONCURRING AND ISSUING A STATEMENT.
[*993] The Commission has before it for consideration: (1) the above captioned application for renewal of license of Station WSNT, Sandersville, Georgia; (2) a petition to deny renewal of license (Petition) filed by Arnold Hayes as an individual and as an agent for the Southern Christian Leadership Conference (SCLC), and by Richard Turner, as an individual and as an agent for the Black Youth Club of Sandersville, Georgia; (3) an opposition to the petition to deny renewal (Opposition) filed by Applicant; and (4) a reply to the opposition to petition to deny renewal of license (Reply) submitted by the original Petitioners.
1. Petitioners predicate their standing as parties in interest on the grounds that they "represent the interest of a substantial portion of the listening audience of WSNT," that the Black Youth Club, an affiliate of the SCLC, has "significant roots in the community," and that the individual petitioner-affiants have personal knowledge of the facts underlying the petition. n1 In addition, the pleadings filed substantiate the fact of residency of the individual petitioners in the community of license, as well as their representation of the two petitioning organizations. The Commission is thus satisfied that Petitioners have sufficient standing to file their petition. n2
n1 In its opposition Applicant challenges the timeliness of the filing of the Petition, as it was filed on March 2, 1970, and the supporting affidavits were filed on March 4, 1970. However, as March 1, 1970, was a Sunday, the filing of the Petition on the next business day is deemed timely, in accordance with Sections 1.4 (d) and 1.4(i) of the Commission's Rules and Regulations. The filing of the supporting affidavits two days subsequent thereto in no way prejudiced the rights of Applicant.
n2 Section 309 (d) (1) of the Communications Act of 1934, as amended; Office of Communication of the United Church of Christ et al. v. Federal Communications Commission, 359 F. 2d 994 (D.C. Cir. 1966).
2. Radio Station WSNT is the only broadcast facility licensed to Sandersville, Georgia. Petitioners allege that of Sandersville's 5,425 citizens (1960 census) approximately 60% are black, and that Washington County, in which Sandersville is located, is approximately 65% black.
[*994] 3. According to Petitioners since about September of 1969, the Movement, "a broadly based coalition of citizens and residents of Sandersville... spearheaded by and organized around the Black Youth Club, an affiliate of the Southern Christian Leadership Conference," has campaigned for greater opportunities and better treatment for blacks in both the public and private sectors. The Movement has employed "lawful picket-lines, parades, rallies, demonstrations and selective buying campaigns," and "there have been up to 2500 persons (almost one-half of the city's population) involved in these activities." Petitioners further state that the efforts of the Movement have resulted in considerable violence, including shootings and bombings attempts; and that the intensity of the developing attrition between the black and white communities was sufficiently newsworthy to warrant reporting by the national media. However, "save for one isolated blurb several months ago," Petitioners claim that WSNT has carried no news whatsoever of these events. These allegations were not denied by Applicant.
4. Petitioners charge that the station's admitted policy of abstention from broadcasting any news of the Movement's activities and the consequences thereof is racially motivated, that the policy was instituted "because the Movement is a black movement." Petitioners aver that upon inquiring of James Whaley, the station manager, petitioner Turner was informed that implementation of the questioned news policy resulted from a desire to remain neutral, to avoid "taking sides."
5. Petitioners allege that the station's expressed desire to remain neutral is in no way relevant to its obligation to inform listeners of significant local events, and directly contravenes its duty to help alleviate community problems. n3 Further, it is asserted that the station has not maintained its claimed neutrality. The Department of Health, Education, and Welfare ordered the integration of the public school facilities of Washington County, Georgia by February 1, 1970. Governor Lester Maddox presented a speech in Washington County advocating resistance to the integration order, and Station WSNT carried the speech live. In contrast, the station failed to broadcast news of a petition supporting the integration order signed by 106 black teachers, as well as the fact that a large number of black demonstrators opposed to Governor Maddox's position was restrained by state troopers from entering the Washington County High School auditorium where the governor was presenting his speech. In addition, in their Reply, Petitioners allege that, but for one incident in which a white man was injured (having been shot on petitioner Turner's front porch) [*995] all violence has been directed toward blacks, and so the station's professed impartiality is in fact discriminatory.
n3 In Office of Communication of the United Church of Christ et al. v. F.C.C., 359 F. 2d 994, 1004 (D.C. Cir. 1966), the court states "In a community served by only one outlet, the public interest focus is perhaps sharper and the need for airing complaints often greater than where, for example, several... exist." Further, in Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, 395 U.S. 367 (1969) the Supreme Court emphasizes the power of the Commission" to treat licensees... as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern. To condition the granting or renewal of licenses on a willingness to present representative community views on controversial issues is consistent with [the First Amendment]. Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people...." The Court also refers to the "twofold duty laid down by the FCC's decisions" that a "broadcaster must give adequate coverage to public issues... and coverage must be fair in that it accurately reflects the opposing views... Moreover, the duty must be met by programming obtained at the licensee's own initiative if available from no other source."
7. In its Opposition Applicant takes issue with these allegations, although, as stated above, it does not contest the factual claims of Petitioners. Applicant refers generally to the "close cooperation between the management of the radio station and the black community," and states that its policy of withholding from the air news of the local racial conflict derives from the Applicant's firm belief that it thus better serves the cause of peace and harmony. As stated in the affidavit of WSNT manager James Whaley, attached to the Opposition as Exhibit 1:
When the Black Youth Club and Southern Christian Leadership Conference began marching and demonstrating in the city of Sandersville it was decided by the management of WSNT that news coverage of these events would not serve any good purpose but would tend to contribute to the cause of violent confrontations between the races. It was felt by the management that any announcements and news coverage of these marches and demonstrations would invite outside agitators both black and white to take part and would serve to promote discord and violence among the citizens of the community.
As to the broadcast of prior notice of these events, it was my fear that the advance publicity would serve to increase the hostile opposition to the event, either black or white, and that the possibility of violence would be greatly increased. With the [sic] regard to the broadcast of the events as they were occurring, keeping in mind the length of the demonstrations and the instantaneous discrimination aspects of the broadcast media, my beliefs that persons who were not yet involved either in the demonstration or the opposition, both black and white, might be induced to participate or observe and thereby compounding the problems in increasing the possibility that a thoughtless word or deed might lead to further violence.
It is my belief that rumors, inability to accurately check the facts in the hostile atmosphere and the wide dissemination of news contributes [sic] to a general atmosphere of fear, hostility and confrontation, and there were instances of news reporting by the National Media, and by some of the newspapers, that was either distorted or not factual.
This policy was applied equally to the blacks and to the whites, and as the station did not publicize black marches and demonstrations, so it did not publicize white counter marches, for the same reasons...
[After describing the explosive atmosphere of fear, hatred, and inclination to violence] It is my belief that this policy helped to defuse a very tense situation, and has contributed in establishing an atmosphere for the resolution of the issues. Sandersville, while suffering violence and intimidation on both sides, was not subjected to the arson, riots, and loss of life that has characterized similar confrontations between groups of citizens in other parts of the country.
8. In support of its argument, Applicant attaches to its Opposition affidavits of J. Euree Curry, Sheriff of Washington County, and James Radney, "a member of the Police Department of Sandersville, Georgia," who was "in charge of the police force during the recent periods of violence." Both affiants refer to the seriousness of the problem, and state their opinion that publicity of the violence might well have led to more violence. Both also claim that the news reports of the national media were exaggerated.
9. As the only station licensed to serve Sandersville, WSNT has a particular responsibility to air major local problems for the benefit of the community. Applicant cannot simply refrain from taking any action, thereby effectively ignoring the situation. Further, if in fact the national media exaggerated and distorted news of the racial conflict in Sandersville, as alleged by Applicant in its Opposition, it appears [*996] to us that the station has a greater obligation to attempt to provide accurate coverage. In addition, the station's argument that broadcasting news of the racial situation would induce nonparticipants "both black and white... to participate or observe... thereby increasing the possibility that a thoughtless word or deed might lead to further violence," is dubious justification for its inaction, particularly since the gravity of the situation indicates that few residents of the station's service area could have remained unaware of the situation. We recognize that in the midst of disorder a licensee must exercise its judgment as to the advisability of broadcasting news of the event, in light of the attendant possibility of attracting crowds of curious spectators whose presence might compound the problems of the authorities. However, we are here concerned with Applicant's general practice of suppressing news of significant local events, and the question of whether Applicant's absolute silence could serve the public interest.
10. These matters raise questions both with regard to whether Applicant is meeting its obligation to serve the public by presenting important local news, and whether Applicant has failed to comply with the Commission's Fairness Doctrine (as ratified by Congress in Section 315 of the Communications Act of 1934, as amended) which imposes upon a licensee the obligation to afford a reasonable opportunity for the discussion of conflicting views on issues of public importance. The federal order raised a controversial issue of public importance in the community, and the station's broadcasting only the governor's point of view raises the question of whether the station has violated the Fairness Doctrine.
11. As further indications of Applicant's alleged discriminatory practices and failure generally to serve the community, Petitioners refer to the survey of community needs and interests submitted with the above-captioned application for renewal of license. Despite the gravity of Sandersville's racial conflict, only one interviewee made any direct reference to it (Mrs. Corine Cuby advocated more jobs for Negroes); n4 and, further, according to Petitioners, the four blacks who were consulted (of a total of 26 interviewed) do not represent the views of the black community. In addition, "despite the Movement's broad base in the Community," it is stated that the licensee made no effort to interview any of its members. n5 We cannot discern from the pleadings whether in fact Applicant did make any good-faith effort to identify those leaders who truly represent the black citizens of Sandersville and the surrounding area. We are not suggesting that the licensee is bound to consult with all who claim to be the principal representatives of community groups. Obviously a licensee must have broad discretion, and the only question that could arise in this regard is [*997] whether the licensee made a good-faith effort to ascertain and consult the principal leaders of representative groups.
n4 Apparently related references by those interviewed are: "interviewing some of those who have been intimidated," "communication," "open forums," "communications... by informing the people in the community of the real facts," "fuller coverage of local news," editorializing "on community affairs and problems... gathering and broadcasting factual information," "to cover local news more closely... giving more details on local stories." In its evaluation of "local and area needs" Applicant lists as seventh (and last) that there is a "need for better human relations and communications between the races in this area.
n5 The Commission requires that an applicant consult "a representative range of groups and leaders to give the applicant a better basis for determining the total needs of the community." FCC Form 303, Section IV-A, page 8.
12. Petitioners also charge that the station at one time carried news of the Black Youth Club as a public service but that it has ceased doing so since the Club became involved in the Movement. Also, contrary to Applicant's representation in its renewal application that it follows a policy of making time available to local groups for discussion of important matters, and that it has notified community leaders of this fact, Petitioners aver that "it has not made time available to the Movement, a group that speaks for over half of Sandersville's population." Further, it is claimed, Applicant has expressly refused to provide time requested by black leaders with the explanation that it does not want to "take sides." Petitioners conclude their argument by emphasizing that WSNT broadcasts basketball and football games of "virtually all white" Washington County High School, but that the sporting events of Thomas J. Elder Comprehensive High School, "the black high school," are not broadcast, despite the predominance of blacks in Sandersville and Washington County; and Petitioners claim that this further demonstrates the station's discriminatory policies. Applicant attaches to its Opposition a letter from C. Williams, principal of Thomas J. Elder Comprehensive High School (described as "integrated" by Applicant and "the black high school" by Petitioners) expressing appreciation for the service provided by WSNT, and stating, "Your treatment of the community activities over the past several monity contributed to the calmness [sic] and rationality of community people." n6 Additional supporting documents include a statement of one Rogers Peeler, "President of the Washington County Chapter of the NAACP," who writes, "I have not been refused by WSNT to run any announcement that I have brought in"; and the affidavit of Gilbert Dean, "a [presumably black] minister and educator in Sandersville," who acknowledges the "good cooperation" of the station in providing him much air time. In support of its position Applicant also attaches to its Opposition a list of "Announcements Requested by and Made in Behalf of Negro Citizens" from August 1969 through March 1970. n7
n6 Applicant also attaches to its Opposition copies of two newspaper articles which describe the tense climate of Sandersville from different points of view. An article from the Swainsboro, Georgia The People's Voice of January 29, 1970, refers to "the organized guerillas of the S.C.L.C." who are part of "the Communist conspiracy," while an article from the Atlanta Journal and Constitution Magazine of February 1, 1970, is milder in tone and more detailed in its description of events. Applicant states, "Neither article is used to establish any of the facts contained in the articles, and the station expressly disclaims any intent to adopt the views of the respective reporters."
n7 Applicant attaches to its Opposition written requests from the Black Youth Club (for announcements regarding the movie commemorating the life of Dr. Martin Luther King, Jr.), dated March 13, 1970; and from Gilbert Dean (for time to present programs dealing with children's problems), dated March 11, 1970. In each case Station WSNT responded in the affirmative. In addition, as cited in Paragraph 15 of this Order, the principal of the Thomas J. Elder Comprehensive High School, C. Williams, submitted a letter dated March 19, 1970, wherein he acknowledged the station's offer to broadcast the school's football and basketball games. Having occurred subsequent to the filing of the petition, these matters are entitled to no weight. In the Matter of Revocation of the Licenses of Asheboro Broadcasting Co. for Broadcast Stations WGWR-AM-FM, Asheboro, North Carolina, 20 FCC 2d 1 (1969).
13. In their Reply Petitioners reiterate their contention that the station totally fails in its responsibility to serve its community of license by following its alleged racially discriminatory policies. Petitioners [*998] take issue with most of the particulars offered by the applicant in defense of its practices. First, Petitioners dispute the claim in James Whaley's affidavit that he and petitioner Turner had never discussed the station's news policy, contrary to information contained in the Petition. Petitioners state that, upon hearing WSNT broadcast news of the prosecution in Atlanta of Hosea Williams, a prominent SCLC official, for driving while intoxicated, Turner called Whaley to inquire why WSNT would carry a news item which presented Mr. Williams in an unfavorable light, whereas it refused to broadcast any news of the activities of local blacks. The Reply continues that Turner then requested that the station announce a forthcoming Movement meeting and mass demonstration, but was told again that the station could not take sides. Relative to this incident, Petitioners allege that the statement in the Opposition that the station has continued to serve the Black Youth Club is false. According to Petitioners WSNT refused to announce, among others, a mass meeting in December of 1969, and "because of the station's pattern of refusing to carry the news and announcements of the Movement... the Petitioners abandoned the futile gesture of making requests." As set out in Paragraph 7 above, James Whaley, the station manager, contends that refusal to carry news of future events is justified by the possibility of intensified hostility and violence. In addition, Petitioners charge Applicant with filing false information in that its reported announcement of a Black Youth Club dance on November 14, 1969, coincides with no such function of the Club on or about that date.
14. Further, among the many announcements listed by WSNT as having been broadcast on behalf of local blacks are two "Stay in School" announcements of January 6 and 7, 1970, by Gilbert Dean. Petitioners assert that Dean is the truant officer of "black" Thomas J. Elder Comprehensive High School, that the Movement had called for a school boycott on those particular days, and that Dean's "announcements clearly represent one side of the issue," so that the station again violated its claimed neutrality.
15. In response to Petitioners' original charge with reference to the station's broadcasting athletic events of the "white" high school only, Applicant filed as an exhibit to its Opposition the aforementioned letter dated March 19, 1970, from C. Williams, principal of the "black" high school, which contains the following: "We appreciate your offer to broadcast our football and basketball games, as of the school term 1968-69, whenever we make the necessary arrangements with our sponsors." n8 In their Reply Petitioners suggest that this is further evidence of the station's pattern of racial discrimination, for presumably sponsorship of the "white" high school events was arranged by James Whaley, the station manager, while the burden of securing sponsorship for Thomas J. Elder events appears to lie with the school itself. Thus, the pleadings raise the question of whether Applicant has failed to provide service to its whole community.
n8 It is presumed that the intended dates are 1970-71, not 1968-69.
16. Based on the foregoing it appears that substantial and material questions of fact have been raised relative to whether Applicant has served the public interest, convenience and necessity of its community [*999] of license. The pleadings raise substantial questions regarding Applicant's performance with reference to its obligation to keep the public informed of important local news and to promote discussion of substantial local issues, especially bearing in mind that WSNT is the only broadcast facility licensed to Sandersville. Additional issues raised include the adequacy of Applicant's survey of community needs and interests, whether Applicant has engaged in a pattern of racial discrimination in its programming, and whether Applicant has failed to meet the responsibilities imposed by the Fairness Doctrine to afford a reasonable opportunity for the discussion of conflicting views on issues of public importance. We conclude that an evidentiary hearing is required to insure the development of a full record.
17. Accordingly, IT IS ORDERED That, pursuant to Section 309(e) of the Communications Act of 1934, as amended, the above captioned application IS DESIGNATED FOR HEARING to be held at Sandersville, Georgia at a time to be specified in a subsequent Order, upon the following issues:
(1) To determine whether Applicant has made a meaningful effort to ascertain the needs and interests of the public served by its station; n9
n9 The phrase "needs and interests" is deemed to be generally synonymous with "community problems."
(2) To determine whether Applicant has followed a racially discriminatory policy in its overall programming, thereby failing to serve the substantial black community in its service area;
(3) To determine whether Applicant has failed to serve the needs and interests of its community of license with respect to its policy of suppressing news coverage of local events;
(4) To determine whether Applicant has complied with the Fairness Doctrine by affording a reasonable opportunity for the discussion of conflicting views on controversial issues of public importance to its community;
(5) To determine whether Applicant has afforded reasonable opportunity for the use of its broadcasting facilities by the significant groups comprising the community of its service area;
(6) To determine whether in light of all the evidence a grant of the application for renewal of license of Station WSNT would serve the public interest, convenience and necessity.
18. IT IS FURTHER ORDERED, That the Petition of Arnold Hayes, Richard Turner, the Southern Christian Leadership Conference, and the Black Youth Club of Sandersville, Georgia insofar as it seeks a hearing on the application herein is granted. n10
n10 Furthermore, it is noted that on September 1, 1970, petitioners filed a Supplemental Pleading to their April 17, 1970, Reply to the licensee's Opposition to their Petition to Deny. Since the Commission's determination herein renders any ruling on the Supplemental Pleading unnecessary, no useful purpose would be served by setting forth in detail the arguments delineated in the Supplemental Pleading at this time. However, it is noted that petitioners assert that WSNT's license renewal application should be denied or designated for hearing in view of the Commission's August 5, 1970, letter to Gary Soucie, Friends of the Earth (FCC 70-862), wherein it was stated that licensees cannot ignore "burning issues." Also, pursuant to three consecutive joint motions filed by Petitioners and Applicant, the Commission withheld action in this matter to allow the parties an opportunity to negotiate their differences. However, documents filed separately by Petitioners and Applicant indicate that negotiations have been terminated and that no agreement has been reached. We also have before us an amendment to its application filed by Applicant on February 16, 1971, which reflects proposed changes in its news, public service, public affairs, and employment policies.
[*1000] 19. IT IS FURTHER ORDERED, That Petitioners Arnold Hayes, Richard Turner, the Southern Christian Leadership Conference and the Black Youth Club of Sandersville, Georgia be made parties to the hearing.
20. IT IS FURTHER ORDERED, That in accordance with Section 309(e) of the Act the burden of going forward with the evidence in the first instance shall be on Petitioners as to issues (1), (2), (3), (4), and (5), with the Broadcast Bureau following with evidence in its possession relevant to those issues. Applicant has the ultimate burden of establishing that it possesses the requisite qualifications to be a licensee and that a grant of its application for renewal of license would serve the public interest, convenience and necessity.
21. IT IS FURTHER ORDERED, That to avail themselves of the opportunity to be heard, Applicant and Petitioners herein, pursuant to Section 1.221(e) of the Commission's Rules and Regulations, in person or by attorney, shall within twenty (20) days of the mailing of this Order, file with the Commission, in triplicate, a written appearance stating an intention to appear on the date set for the hearing and present evidence on the issues specified in this Order.
22. IT IS FURTHER ORDERED, That Applicant shall, pursuant to Section 311(a)(2) of the Communications Act of 1934, as amended, and Section 1.594 of the Commission's Rules and Regulations, give notice of the hearing within the time and in the manner prescribed in said Rule, and shall advise the Commission of the publication thereof as required by Section 1.594 of the Commission's Rules and Regulations.
FEDERAL COMMUNICATIONS COMMISSION, BEN WAPLE, Secretary.
I concur in the designation of this renewal application for hearing, and join in the majority's designation order. I believe it important to indicate my views on the procedures in hearing cases for the participation of public interest groups who have persuaded the Commission that a hearing on an application is required.
As the Commission is coming more and more to recognize, public interest groups have undertaken to supply on a local level the scrutiny of applications that the Commission simply has been unable to do for a variety of reasons. Cf., In Re KCMC, Inc., 25 F.C.C. 2d 603, 605 (1970). I believe we are adopting a more responsive attitude to the participation of community groups. But we must also recognize that these groups for the most part are underfinanced and often unable to thoroughly prosecute a case in hearing. The sensible and realistic approach to take in these circumstances would be to treat cases designated for hearing on the basis of petitions to deny filed by public interest groups as if the Commission staff itself had conducted the investigation which led to the hearing order. In that circumstance, the hearing staff of the Broadcast Bureau would have the full responsibility for the prosecution of the case.
I would hold that public interest intervenors have at least three options once they have persuaded the Commission that a hearing is required on an application.
(1) The public interest intervenor can participate fully in the hearing and its subsequent development before the Commission.
(2) The public interest intervenor can formally participate in only part of the proceedings -- at hearing, or in amicus briefs to the examiner or the Commission or in oral argument, or in any combination he wishes.
(3) The public interest intervenor need only participate to the extent of cooperating with the Broadcast Bureau hearing staff, supplying information as our staff feels it is necessary, and in effect becoming part of the Broadcast Bureau's case.
Whatever role the public interest intervenor chooses, the ultimate burden for prosecuting the case rests on the Broadcast Bureau staff once specific issues are designated in the case.
The Commission's responsibility for full exploration of the issues specified in a hearing order cannot be delegated, and it is immaterial whether the issues were first raised by outside parties or by the Commission's own investigation. If the Commission fails to fully explore hearing issues, or relies on some alleged procedural "failure to meet its burden" by some public interest group on an issue, I believe the Commission would commit reversible error. Only if the Commission has fully explored an issue through its own staff in hearing can it decide that no adverse conclusion is warranted. I believe these procedural standards are compelled by a realistic evaluation of the resources that public interest groups have available to them, hard pressed as they are to even meet the threshold burden of forcing a hearing before a sometimes unsympathetic Commission. More importantly, I believe this must be our position under a reading of the severe criticism of the Commission's actions in the second United Church of Christ case ( Office of Communication of the United Church of Christ v. F.C.C., 425 F. 2d 543 (D.C. Cir., 1969)).
DISSENTING STATEMENT OF COMMISSIONER ROBERT T. BARTLEY
Petitioners' basic complaint is that WSNT did not broadcast promotional announcements of, or news reports on, the "Movement's" activities which involved substantial violence in the community. WSNT has made an uncontroverted showing that it has broadcast other promotional announcements and news reports on the SCLC and Black Boys Club, as well as other black organizations. A letter from the President of the Washington County Chapter of the NAACP, Rogers Peeler, states that, "I have not been refused by WSNT to run any announcement that I have brought it." It is not a question here of the station's refusing or failing to give time to petitioners' groups. The question is WSNT's judgment that the public interest of Sandersville would be served better by not broadcasting matters which promoted and inflamed the violence surrounding the "Movement's" activities in question. WSNT has submitted letters from the Sheriff of Washington County and from the public official of Sandersville in charge during the periods of violence, in which they state that widespread publicity of the violence might have led to further violence.
The licensee determined, under the circumstances, that the public interest of Sandersville would be served better by the policy pursued. I am not prepared to substitute my judgment for the licensee's.
I would grant WSNT's renewal.