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In Re Applications of WILLIAM A. CHAPMAN AND GEORGE K. CHAPMAN,

D.B.A. CHAPMAN RADIO & TELEVISION CO., HOMEWOOD, ALA.;

ALABAMA TELEVISION, INC., BIRMINGHAM, ALA.; BIRMINGHAM BROADCASTING CO., BIRMINGHAM, ALA.

For Construction Permit for

New Television Broadcast Station; BIRMINGHAM TELEVISION CORP.

(WBMG), BIRMINGHAM, ALA. For Modification of Construction Permit

 

Docket No. 15461 File No. BPCT-3282; Docket No. 16760 File No. BPCT-3706; Docket No. 16761 File No. BPCT-3707; Docket No. 16758 File No. BPCT-3663

 

FEDERAL COMMUNICATIONS COMMISSION

 

34 F.C.C.2d 299

 

RELEASE-NUMBER: FCC 72-34

 

January 14, 1972 Released

 

 Adopted January 12, 1972

  


JUDGES:

BY THE COMMISSION: COMMISSIONER JOHNSON CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT; COMMISSIONERS H. REX LEE AND REID ABSENT.


OPINION:

 [*299]  1.  The Commission has before it for consideration a petition filed jointly by Birmingham Broadcasting Company (BBC) and by Birmingham Television Corporation (WBMG) on October 22, 1971, n1 which requests initiation of a non-adjudicatory investigation under Section 403 of the Communications Act of 1934, as amended.  Petitioners also ask that the Commission direct the Review Board to make no decision upon a Supplemental Initial Decision which has been issued in this proceeding until such time as the Section 403 investigation is concluded and its results known and available to the Board.  If the Commission does not order a Section 403 investigation, petitioners request alternatively that the Commission direct the Review Board to act favorably upon their joint petition to enlarge the issues and reopen the record which is pending before the Board.  In addition, the Commission has received a letter, dated December 14, 1971, from the Chairman of the Congressional Black Caucus of the U.S. House of  [*300]  Representatives, urging on behalf of the Caucus that the Commission institute a Section 403 inquiry into the record of civil rights compliance of certain parties to this proceeding and that the Commission investigate the matter immediately.  This letter advances essentially the same contentions which are made by BBC and WBMG in support of their joint request for initiation of a Section 403 inquiry. 

n1 The following pleadings are before the Commission: (a) a joint petition for institution of an inquiry pursuant to Section 403 of the Communications Act and for other relief filed by Birmingham Broadcasting Company and by Birmingham Television Corporation (WBMG) on October 22, 1971; (b) an opposition thereto filed by the Chief, Broadcast Burean, on November 1, 1971; (c) an opposition filed by Alabama Television, Inc. on November 4, 1971; (d) petitioners reply to Alabama Television's opposition filed on November 16, 1971; and (e) petitioners' reply to the Bureau's opposition filed on November 17, 1971.

2.  Because of the posture of this proceeding before the Review Board, we believe that the requests for initiation of a Section 403 inquiry should be dismissed.  The matters urged by petitioner and the Congressional Black Caucus so closely resemble requests by BBC and WBMG for relief which is now pending before the Review Board that any action by us on the requests for a Section 403 inquiry would seriously undermine the authority we have delegated to the Review Board.  Thus, in this very proceeding, exceptions to a Supplemental Initial Decision n2 are pending before the Board, as well as a joint petition by BBC and WBMG to enlarge issues and reopen the record, which petition in essence advances arguments for further exploration of Alabama Television, Inc.'s and its principals' equal opportunity employment practices similar to those advanced in support of the requests before us at this time for institution of a Section 403 inquiry. 

n2 In addition to the filing of applications for review of a Review Board decision which affirmed the Hearing Examiner's Initial Decision herein recommending a grant of the application of Alabama Television, Inc., petitions to enlarge the issues and to reopen the record were filed with the Commission.  Dismissing the applications for review as moot, the Commission granted one of the petitions and remanded the proceeding for further hearing (and for the issuance of a Supplemental Initial Decision) upon specified issues, including an issue to determine whether the hiring policies and practices of Alabama Television, Inc. comport with the Commission's equal opportunity employment requirements.  The Hearing Examiner released a Supplemental Initial Decision (FCC 71D-20) on April 27, 1971, wherein he resolved the issues favorably to Alabama Television, Inc. and again recommended that its application be granted.

3.  Two principal reasons persuade us that the requests made of us for a Section 403 inquiry must be dismissed: (a) the full sweep of this adjudicatory proceeding now awaits action by the Review Board, and it, therefore, is in a better position at this juncture to assess the contentions advanced before it in support of the petition to enlarge issues and to reopen the record -- in short, the Board should be permitted to proceed under its delegated authority; and (b) should the Board act adversely upon the relief requested by BBC and WBMG, our procedures assure that the Board's action will be reviewed and that the public interest will be protected.  In view of the foregoing, the joint request by BBC and WBMG and the separate request of the Congressional Black Caucus of the U.S. House of Representatives for institution of a Section 403 inquiry will be dismissed.

4.  We shall deny BBC's and WBMG's alternative request that we direct the Review Board to act favorably upon their joint petition to enlarge the issues and to reopen the record which pends before the Review Board.  Such a direction would be wholly inconsistent with the degree of authority and discretion which we have delegated to the Board.

5.  Accordingly, IT IS ORDERED, That the joint petition for institution of a Section 403 inquiry, filed October 22, 1971, by Birmingham Broadcasting Company and Birmingham Television Corporation (WBMG), and the request of the Congressional Black Caucus of the  [*301]  U.S. House of Representatives, dated December 14, 1971, for initiation of a Section 403 inquiry ARE DISMISSED.

6.  IT IS FURTHER ORDERED that the above described alternative request for relief, also filed on October 22, 1971, by Birmingham Broadcasting Company and Birmingham Television Corporation (WBMG) IS DENIED.

 

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.


 

CONCURBY: JOHNSON (IN PART)

 

DISSENTBY: JOHNSON (IN PART)

 

DISSENT:

CONCURRING AND DISSENTING OPINION OF COMMISSIONER JOHNSON

I.

This is a case involving a comparative hearing among four mutually exclusive applicants for Channel 21 in Birmingham, Alabama.

In 1969, the Review Board upheld the Examiner's recommendation to grant the application of Alabama Television Inc. n1 Subsequently, the Commission reopened the case and remanded it to the Hearing Examiner to determine Alabama Television's candor in its representations that it would follow nondiscriminatory employment practices, n2 after it was shown that a cemetery owned by the President of Alabama Television, John S. Jemison, had refused to bury a black man killed in Vietnam. 

n1 Chapman Radio and Television Company et al., 19 F.C.C. 2d 157 (1969), reconsideration denied 20 F.C.C. 2d 624 (1969).

n2 Chapman Radio and Television Company et al., 24 F.C.C. 2d 282 (1970).

In April of 1971, the Hearing Examiner released a Supplemental Initial Decision, n3 finding no basis for a determination of lack of candor regarding Alabama Television's proposed compliance with the Commission's equal employment opportunity requirements, and recommending, again, granting the application of Alabama Television.  Exceptions from this decision are now pending before the Review Board. 

n3 FCC 71 D-20, 21 P&F Radio Reg. 887 (1971).

In May of 1971, Birmingham Broadcasting Company (BBC) and Birmingham Television Corporation (WBMG), two other applicants for the channel, filed with the Board a joint petition to enlarge the issues and reopen the record, seeking the addition at the Hearing Examiner level of the following disqualifying issues against Alabama Television: (a) facts concerning a suit filed by the United States against two of Alabama Television's principals charging racial discrimination in the rental of apartments; (b) the nature of civil rights compliance of all companies with which any of Alabama Television's principals is associated and whether they conform to the Commission's equal employment opportunity standards; and (c) Alabama Television's candor in presenting a nondiscriminatory employment proposal to the Commission.

BBC and WBMG now have filed before the Commission a petition to place in abeyance the matters currently pending before the Review Board (the exceptions to the Supplemental Decision and the petition to enlarge the issues), and to institute an inquiry under Section 403  [*302]  of the Communications Act n4 into Alabama Television's candor and willingness to institute nondiscriminatory employment practices, and to investigate the employment practices of all businesses owned or controlled by principals of Alabama Television.  In the alternative, they asked the Commission to direct the Review Board to reopen the record and enlarge the issues in this proceeding to encompass the matters discussed above. 

n4 47 USC   403 (1964).

The Commission today denies both petitions, as well as a petition to open a Section 403 inquiry, filed by the members of the Congressional Black Caucus.  n5 I concur in the decision not to institute the Section 403 inquiry, but I dissent from the decision not to direct the Review Board to reopen the record and enlarge the issues. 

n5 The Congressional Black Caucus is composed of the following Congressmen: Charles C. Diggs, Jr., Augustus F. Hawkins, Charles B. Rangel, William L. Clay, Shirley Chishom, George W. Collins, John Conyers, Jr., Renald Dellums, Walter E. Fauntroy, Ralph H. Metcalfe, Parren J. Mitchell, Robert N. C. Nix, and Louis Stokes.

II.

Of course, we agree that the mass media hold a special obligation to foster full employment opportunities for members of minority groups and the disadvantaged.  That is why we established rules requiring broadcasters to create positive programs for non-discriminatory employment.  n6

n6 47 CFR   73.125, 73.301, 73.599, 73.680, and 73.793 (1971).

The problem is with translating this spirit into practice.  Here we are faced with a preferred applicant with serious charges of racial discrimination pending against the companies of several principals.  Both the members of the Congressional Black Caucus and two competing applicants have asked us to institute a Section 403 inquiry into all these matters.  This is an inquiry without a formal hearing process; evidence developed in the inquiry would then have to be introduced in a hearing after an enlargement of the issues.  I agree with the Commission majority not to grant this petition, because I feel that to institute a Section 403 inquiry would unduly delay the entire proceeding, especially inasmuch as identical issues are now pending before the Review Board.

However, I disagree with the majority's conclusion not to direct the Review Board to act favorably upon the joint petition to enlarge the issues and reopen the record.  I do not agree that "[such] a direction would be wholly inconsistent with the degree of authority and discretion which we have delegated to the Board."

The Review Board was created to help the Commission to reduce delays in the administrative process and to free the Commission members for more time for policy determinations.  n7 Ordinarily, of course, it is the wisest and best policy to allow the normal procedures outlined in the Commission's Regulations to take their natural course.  Thus, ordinarily, I would refuse to direct the Review Board to act favorably or unfavorably on a pending motion when, by the ordinary course of events, the whole matter would come before the Commission in due time. 

n7 See Freedman, Review Boards in the Administrative Process, 117 U. Pa. L. Rev. 546 (1969).

 [*303]  We should always remember, however, that we are not the prisoners of the procedure we have created.  We are authorized by our own Rules to waive any regulation where "good cause" is shown.  n8 In this case, there is involved the basic question of whether the principals of Alabama Television, Inc., are to be believed in their representations of proposed compliance with the Commission's rules requiring nondiscriminatory employment practices.  Such questions arise from apparent business practices of several of Alabama Television's principals.  I am not stating any views here as to whether Alabama Television is in fact not to be believed, or whether business practices of principals disqualify Alabama Television.  I am stating that on the record, such issues ought to be decided as soon as possible.  Ultimately, of course, it is we, not the Review Board, who are responsible for upholding the Communications Act's requirement that stations operate in the "public interest." n9 Ultimately, we, not the Review Board, are responsible for upholding our Regulations regarding equal employment.  n10 But the question is initially for the Review Board. 

n8 47 CFR   1.3 (1971).

n9 47 USC 309(a).

n10 See n. 4, supra.

For over 100 years black Americans have been told "Yes, but." This Commission in 1972 ought not sing that tired refrain.  I would grant the motion to direct the Review Board to enlarge the issues and reopen the record, so as to allow the earliest possible return of this proceeding to the Hearing Examiner.


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