In Re Application of CHICAGO FEDERATION OF LABOR AND INDUSTRIAL UNION COUNCIL For Renewal of License for Station WCFL, Chicago, Ill.
File No. BR-3735
FEDERAL COMMUNICATIONS COMMISSION
38 F.C.C.2d 417
RELEASE-NUMBER: FCC 72-1079
December 8, 1972 released
Adopted November 29, 1972
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.
[*417] 1. The Commission has before it for consideration: (i) the above-captioned license renewal application for Station WCFL, Chicago, Illinois, filed September 1, 1970, by the Chicago Federation of Labor and Industrial Union Council, hereinafter referred to as the licensee; (ii) a petition to deny the above-captioned license renewal application, filed November 2, 1970, by three Chicago based community organizations, hereinafter referred to as the petitioners; (iii) licensee's opposition to the petition to deny, filed June 1, 1971; and (iv) petitioner's reply pleading, filed August 4, 1971.
2. Section 309(d)(1) of the Communications Act of 1934, as amended, 47 U.S.C. 309(d)(1), as implemented by Section 1.580(i) of the Commission's rules, 47 C.F.R. 1.580(i), provides that any party in interest may file a petition to deny any application. Where a petition to deny is filed, it must be filed on or before the first day of the last full calendar month preceding the license expiration date of the station involved. The instant petition was filed on November 2, 1970, by the Better Broadcasting Council, Inc., the Task Force for Community Broadcasting, and the Illinois Citizens' Committee for Broadcasting. Each of these organizations is described in the petition as a Chicago based group concerned principally with the rights of the listening public and members of minority groups. The petition is signed by several persons in their individual capacity as residents of Chicago and as agents for the organizations briefly described above. It is clear, therefore, that the petitioners have standing as parties in interest under Section 309(d)(1) of the Communications and Section 1.580(i) of the Commission's rules. Office of Communication of the United Church of Christ v. Federal Communications Commission, 359 F. 2d 994 (1966). [*418] 3. Petitioners request that WCFL's license renewal application be designated for hearing on issues designed to explore the licensee's ascertainment efforts, proposed programming, commercial practices, and program logging practices. The petitioners also state that issues should be designated to explore the facts and circumstances surrounding the licensee's dismissal of a WCFL news announcer and whether the licensee negotiated in good faith with petitioners.
4. The licensee, in its opposition, initially contends that the petition does not meet the statutory requirements of Section 309(d)(1) of the Communications Act. Specifically, the licensee claims that the petition does not contain specific allegations of fact sufficient to show that a grant of the application would be prima facie inconsistent with the public interest. The licensee also contends that the affidavits attached to the petition are defective because they all contain the following identical language:
That I have read the foregoing petition and that the allegations of fact contained therein are, to the best of my knowledge, true, except for those items referred to on information and belief, which I believe to be true.
5. Section 309(d)(1) of the Communications Act provides that, where a petition to deny is filed, it must contain specific allegations of fact sufficient to show that a grant of the application would be prima facie inconsistent with the public interest. Also, the petition must be supported by affidavit of a person or persons with personal knowledge of the facts contained therein. As will be noted herein, several of the matters raised in this proceeding are unsupported conclusions, assertions on subjective judgment, or allegations based on information and belief. The allegation of ultimate conclusionary facts or mere general allegations based on information and belief, supported by general affidavits, are not sufficient to require an evidentiary hearing. Stone v. FCC, Case No. 71-1166, D.C. Cir., June 30, 1972. Further, the affidavits in this proceeding are pro forma affidavits which, in part attest to certain facts on "information and belief". A valid question is, therefore, raised as to whether such affidavits comply with the statutory standards of Section 309(d)(1) of the Communications Act. None-theless, we have decided to consider the petition on its relative merits and issue our ruling accordingly.
Ascertainment -- Proposed Programming
6. Petitioners' initial allegation is that the licensee of WCFL has failed to ascertain the needs and interests of the community. Petitioners state that of 257 "community leaders" interviewed by the licensee only one-half of one percent considered themselves representatives of the "racial" community. Petitioners submit that blacks constitute 34.2 percent of Chicago's population and blacks and other minorities constitute 44 percent of Chicago's population. Petitioners conclude, therefore, that the licensee's ascertainment process is not representative of the composition of the community as required by the Commission's proposed Primer on Ascertainment of Community Problems by Broadcast Applicants, 20 FCC 2d 880 (December 19, 1969). Petitioners also state [*419] that the licensee's inclusion of 49 students among the "community leaders" interviewed without listing the name, position, and organization of each student is contrary to Question and Answer 21 of the Proposed Primer, supra. Petitioners further state that some of the "community leaders" interviewed were not even residents of the Chicago area. Finally, petitioners state that the licensee's "haphazard contacting of a few people it classified as 'man-on-the-street'" is not sufficient to create the required survey of a representative range of the general public.
7. In opposition, the licensee submits that in excess of 38 percent of persons interviewed were members of minority groups. The licensee also submits that in excess of 30 percent of the organizations consulted "have interests primarily designed to benefit members of minority groups" while approximately 60 percent are non-racial. The licensee notes that Commission policy allows the broadcasters to select which leaders should be consulted based on their determination of the composition of the community. In this respect, the licensee states that its selection of leaders was based upon consideration of census data and the Local Community Fact Book prepared by the Chicago Community Inventory at the University of Chicago. In response to the allegation that non-residents of the Chicago area were interviewed, the licensee states that, even excluding the non-resident interviewees, there were more than enough persons interviewed for the ascertainment to be valid. Finally, the licensee states that the students interviewed were part of the general public ascertainment and that the requirements contained in the Proposed Primer, supra, concerning identification of interviewees applies to community leaders, not to members of the general public.
8. In reply, petitioners state that the licensee's claim that 38 percent of the persons interviewed for community ascertainment were members of minority groups, and that in excess of 30 percent of organizations represented by persons interviewed "have interests primarily designed to benefit members of minority groups," is completely unsubstantiated. Petitioners also state that of the entire list of 257 persons interviewed by the station, only 21 (less than 12 percent) "could possibly be identified as minority leaders." Petitioners dispute the licensee's assertion that it conducted a "random sample" survey of members of the general public, and argue that the station is inconsistent to its own advantage as to whether to classify the 49 student interviewees as part of the community leader survey or part of the general public survey. Petitioners also contend that many of the "interviewees" were not consulted specifically for the purpose of ascertaining the needs of the community. Instead, petitioners submit that some of the interviewees were interviewed during ordinary news coverage or during the course of other programs. Petitioners also maintain that the interviews were not conducted by "top level employees" as required by Question and Answer 11(a) of the Proposed Primer, supra.
9. In connection with the above, petitioners also claim that WCFL's application does not satisfy the requirement of Question and Answer 30 of the Proposed Primer, supra, which requires applicants to specify what program proposed will meet what community problem. Petitioners claim further that WCFL's application does not satisfy the requirements [*420] of Question and Answer 33 of the Proposed Primer, supra, which requires that the applicant's proposed programming be identified "by title, time segment, duration, frequency and description." Petitioners submit that WCFL has only vaguely stated that it will deal with several issues such as pollution and narcotics. Petitioners claim that this makes it impossible for members of the public to ascertain the exact nature of WCFL's proposed programming.
10. In opposition, the licensee states that its renewal application represents that it will broadcast one-hundred and two public affairs documentary programs of 30 to 60 minutes duration dealing with community problems, including educational opportunities, housing, narcotics, air pollution, waste disposal, health and welfare, and youth opportunities. In addition, the application pledged to present public service announcements for a variety of organizations. The licensee asserts that its past performance as reflected in its renewal application is an adequate basis for the station's reliability in implementing its representations. In reply, however, petitioners state that the licensee's statement that it will present 102 documentaries and special programs of 30 to 60 minutes duration during the license period means that the licensee is pledging an average of less than 30 minutes per week of this type of programming, and they argue that this amount (constituting less than one-half of one percent of the station's weekly programming) is clearly inadequate.
11. Part I, Question I of Sections IV-A (Radio) and IV-B (television) of FCC Form 303, the license renewal application, requires applicants to set forth information on the methods used to ascertain community problems and programming matter proposed to deal with the problems ascertained. By action of December 19, 1969, 20 FCC 2d 880, the Commission issued a Notice of Inquiry and Proposed Primer dealing with the subject of ascertainment of community problems by broadcast applicants. The Proposed Primer was issued to help clarify the requirements of Part I, Question 1 of Sections IV-A and IV-B of the various broadcast application forms, including FCC Form 303. By Report and Order adopted February 18, 1971, released February 23, 1971, 27 FCC 2d 650, the Commission issued its final Primer on Ascertainment of Community Problems by Broadcast Applicants.
12. In its initial submission under Part I, Question 1 of Section IV-A of WCFL's license renewal application, the licensee described the methods used to ascertain the problems of the public served by the station and the programming matter it intended to broadcast to cover the problems discovered. At the outset the licensee described WCFL's service area and the methods used to determine the composition thereof. The licensee then set forth a list of a large number of community leaders and other persons interviewed. This list included members of the general public and representatives of various governmental, educational, religious, entertainment, agricultural, youth, ethnic, racial, labor, and professional groups and organizations. Each of the community leaders interviewed was identified by name, position and organization. The licensee then set forth an inclusive listing of the problems ascertained and outlined the programming it proposed to broadcast to cover what it deemed to be the most significant problems discovered. The licensee also represented that these programs would be [*421] 30 to 60 minutes in length and would relate to various local needs and interests.
13. As previously noted, the license renewal application for WCFL was filed September 1, 1970. Following adoption of the Commission's final Primer, supra, broadcast applicants were advised that, if necessary, they could amend their survey showings to comply with the new requirements. See Primer, supra, at p. 680. Accordingly, subsequent to the filing of WCFL's license renewal application the licensee filed two amendments relative to its ascertainment efforts. Both of these amendments were served on the petitioners. 47 C.F.R. 1.522. The first amendment, dated September 15, 1971, consisted of a survey of the general public in the Chicago area and was conducted for the licensee under the direction of Dr. Frank J. Svestka, Jr., an Assistant Professor at the School off Business, Loyola University, Chicago. This survey was based on a total sample of 400 persons. A breakdown of this sample discloses interviews with 82 white males over 30 (20.5%), 90 white females over 30 (22.5%), 45 white males under 30 (11.3%), 44 white females under 30 (11.0%), 36 black males over 30 (9.0%), 25 black females over 30 (7.3%), 29 black males under 30 (7.3%), and 49 black females under 30 (12.3%). Further, a comparison of this sample with 1970 Bureau of Census Population Data shows that the interviews with whites, who represent 65.6% of the population, constituted 65.3% of those surveyed, and that the interviews with blacks, who represent 32.7% of the population, constituted 34.8% of those surveyed. This amendment also set forth the problems ascertained through the general public survey.
14. The second amendment, dated September 17, 1971, consisted of a survey of persons who are primarily black leaders in the Chicago area. Specifically, this survey consisted of interviews with 27 black community leaders and enumerated the problems cited by them as significant and current, namely, (1) unemployment; (2) housing -- i.e., lack of decent housing for low, moderate and middle income families; (3) lack of adequate educational opportunity, particularly for minorities; (4) racial problems -- i.e., segregation, racial relations and racism; (5) deterioration of the inner city and exodus of industry, talent, capital and people to the suburbs; (6) crime/youth problems; (7) economy -- i.e., lack of sources of income to minority group members to establish their own business; and inflation; (8) improved health education, hygiene and facilities; and, (9) inadequate law enforcement.
15. In the foregoing amendments licensee noted that it was in the process of evaluating the findings and would submit an additional amendment upon completion of its evaluation. Accordingly, on November 8, 1971, licensee filed another amendment (also served on petitioners) to WCFL's renewa application wherein it set forth additional typical and illustrative Public Affairs programs it had planned and designed to deal with the problems ascertained through its community surveys. These proposals set forth the titles of the programs, a description of the programs, their scheduled time-segments, duration and intended frequency of broadcast.
16. Petitioners have raised several questions relating to the adequacy of the licensee's initial ascertainment efforts, particularly as they related to the minority community, and its proposed programming. Any [*422] questions about the licensee's initial ascertainment efforts have been corrected by the licensee's amendments of September 15 and 17, 1971, and November 8, 1971. That is, measured against the standards contained in the Primer, supra, it is clear that the licensee has consulted with a representative cross-section of community leaders, including minority leaders, and a random sample of members of the general public. Further, the interviews with community leaders and members of the general public elicited specific and meaningful information concerning community problems. The community problems mentioned were enumerated by the licensee and the licensee has proposed programming which it deems responsive to its evaluation of such ascertained problems. In short, in view of the number and character of persons interviewed, we are satisfied that the licensee has ascertained the problems of its service area from a representative cross-section of persons in that area; and, further, has proposed sufficient programming to meet the problems discovered. Further, since petitioners' allegations relate to the licensee's unamended showing, and since petitioners have not addressed themselves to the relevance of the licensee's amendments, we conclude that a hearing is not warranted on this aspect of WCFL's license renewal application.
WCFL's Commercial Practices
17. Petitioners' also allege that WCFL has engaged in excessive commercialization. In support of this charge, petitioners note that the licensee states that WCFL conforms to the Code of the National Association of Broadcasters, which provides that radio stations should present no more than 18 minutes of commercial material per hour. Petitioners state, however, that WCFL's renewal application discloses that during the composite week it exceeded 18 minutes of commercial matter per hour four times. Petitioners also note that WCFL's renewal application states that the 18 minute limitation will not be violated "except during political campaigns or extraordinary emergency situations." Petitioners submit that there was no political campaign or emergency situation when the station exceeded its commercial limitation during the composite week. Petitioners also submit that it is particularly significant that the four hours during which the 18 minute limitation was exceeded occurred during "rush hour" traffic time when tens of thousands of people are listening to their car radios. Petitioners also criticize the licensee for increasing the total amount of commercial time from 11% in 1967 to 12.3% in 1970, an increase of 1.3%.
18. In opposition, the licensee notes that its renewal application indicates that it exceeded 18 minutes of commercial material in only four of the 136 hours in the composite week. The licensee also notes that WCFL's renewal application indicated that these statistics were not representative of the station's commercial practices. Rather, the licensee states that these excesses reflected a shortcoming of the station's former traffic system and that the present traffic system makes it impossible for such an inadvertent mistake to occur. Also, the licensee submits that WCFL's increase in commercial time from 11% to 12.3% is well below the industry standard of 30%. The licensee also [*423] submits that petitioners have not challenged other stations in the Chicago market which have commercial continuity in excess of that of WCFL's. In their reply, petitioners state that if the Commission accepts the licensee's excuse then any station can over-commercialize to whatever extent it desires and then point to similar flaws which have allegedly been remedied when questioned by the Commission.
19. In its 1967 renewal application the licensee indicated that its limit on commercial matter would be 18 minutes per hour "except during political campaign or extraordinary emergency situations." The fact that the station exceeded the 18 minute limit four times (by seven seconds, forty seconds, forty seconds and one minute) during the composite week reported in the pending application does not convince us that we or the public have been victims of misrepresentation. The licensee states that the excesses were the product of inadvertence and that the system which allowed such inadvertence has been corrected to eliminate that possibility in the future. Petitioners' argument seems to be that any excess over the station's stated maximum constitutes deceit; we are willing to accept the possibility that human error could produce an occasional excess over the stated maximum and do so in this case.
20. we also note that the Commission has refrained from adopting rules governing the amount of commercial time which may be carried in any 60 minute segment. The Commission has, however, expressed concern with the problem of apparent over commercialization in broadcast station operation; and, in this respect, has taken steps to advise the industry as to the amount of commercial time the Commission believes to be within an acceptable norm without denying the right of each broadcaster to make his own different judgment on any reasonable basis in terms of his particular situation. Hence, by letter dated February 13, 1970, addressed to Station WXCL, Peoria, Illinois, the Commission, in substance, expressed approval to a commercial policy which provided for a normal commercial ceiling of 18 minutes in each hour with specified exceptions permitting up to 20 minutes in each hour during no more than 10 percent of the station's total weekly hours of operation with a further exception permitting up to 22 minutes where the excess over 20 minutes is purely political advertising. Based on these guidelines, which have become known throughout the industry as the WXCL standards, it is clear that WCFL's commercial overages during only four hours of its total broadcast time are, in fact, de minimus. We see no decisional significance in the fact that WCFL's overages occurred during rush hour or drive-time. Petitioners have made no attempt to relate how the licensee's proposed commercial policy of 12.3% is contrary to the public interest or why this policy, which is in fact lower than other stations in the market, can be properly characterized as "over commercialization".
Program Logging Practices
21. Petitioners also allege that the licensee has misrepresented WCFL's past programming by improperly logging music programs as Public Affairs presentations. In support of this charge, petitioners submit that the licensee has misclassified two programs -- namely, The [*424] Dick Williamson Show and The Dick Biondi Show -- as Public Affairs programs even though they consist almost entirely of music. In opposition, the licensee submits that The Dick Williamson Show was properly classified as Public Affairs because it involves guest speakers who respond to questions from the public on the air. The licensee also submits that The Dick Biondi Show, which involves taped telephone conversations with Vietnam veterans and their relatives, may have been misclassified. In reply, the petitioners reassert their claim that the programs in question are purely entertainment because they are interspersed with musical content. In addition, petitioners claim that the licensee has misclassified other programs as Public Affairs.
22. Based upon our review of the foregoing facts we conclude that there is some merit to petitioners' assertion that The Dick Biondi Show may have been misclassified as Public Affairs; The Dick Williamson Show was properly classified. However, we are unable to conclude that such misclassification raises a substantial and material question of fact which would require resolution after an evidentiary hearing.
23. Classification of programming presents a difficult and close question. Experience has shown that licensees often have difficulty in differentiating between the various program classifications set forth in the Commission's rules and broadcast application forms. However, absent other evidence, the mere fact that a licensee misclassifies one or two programs does not compel the conclusion that the licensee is guilty of intentional wrongdoing. Here, the misclassification of the contested program as entirely Public Affairs is, in our view, no more than a mistake in judgment, not deception. Further, the contested program has Public Affairs characteristics and, thus, it would have been entirely appropriate for the licensee to prorate the program time between the Public Affairs and some other program category. There is no evidence which would support a conclusion of deliberate misrepresentation; nor is there any evidence which would establish a pattern of such misclassification. Conversely, an examination of WCFL's license renewal application discloses a considerable number of other programs properly classified as Public Affairs programs which have served many diverse needs and interests within the station's service area. Against this backdrop, we conclude that there is no need to explore the licensee's program logging practices in an evidentiary hearing.
Other Programming Matters
24. Petitioners also contend that the licensee's reduction of Wcfl/'s News programming by five hours per week is unjustified, particularly during a period of national turmoil. In opposition, the licensee submits that WCFL still proposes 15 hours of News programming per week, or 9.2% of the station's total program schedule. The licensee also submits that, although petitioners have expressed their opinions and views, they have failed to submit any facts showing that the proposed percentage reduction constitutes a proma facie basis for an evidentiary hearing. On the other hand, in reply, petitioners submit that the licensee has failed to offer any justification for its proposed reduction in WCFL's News programming.
[*425] 25. A licensee has the responsibility of making good-faith, reasonable will serve the needs and with serve the needs and interests of his service area and the amounts, kinds and time-periods during which such programming should be broadcast. Petitioners make no attempt to relate how the licensee's proposed reduction in News programming from 20 to 15 hours per week will fail to serve the public interest. The bare allegation that such a reduction is unjustified does not establish a substantial and material question of fact warranting exploration in an evidentiary hearing.
Requested Character Issues
26. Petitioners contend that the character qualifications of the licensee should be placed in issue on the grounds that articles published in the Hyde Park Kenwood Voices and the Chicago Journalism Review charge that a WCFL news reporter was discharged by the station because the Mayor of Chicago was displeased by his reports. This charge, however, is based on information and belief. As previously noted, Section 309(d)(1) of the Communications Act places a burden on petitioners to come forward with specific facts by which the Commission can reasonably conclude that the act alleged did, in fact, occur. General newspaper articles do not satisfy this standard of proof. Moreover, petitioners admit that they cannot swear to the veracity of this charge.
27. Petitioners also contend that the licensee's character qualifications should be placed in issue because the licensee has exhibited had faith with the public it is licensed to serve. Petitioners claim that licensee's station manager was surly and uncooperative with their representatives and, in this respect, refused to discuss their proposals for improving the station's service. In opposition, the licensee submits that station representatives met with petitioners and that the petitioners were not entirely blameless in their negative encounter with WCFL's station manager. In reply, petitioners reassert their claim that the licensee was unwilling to review their written suggestions and otherwise used dilatory tactics in attempting to discourage review of the station's public file.
28. The Commission has consistently encouraged broadcasters and community groups to meet in an attempt to resolve their differences. Here it appears that the licensee and petitioners did hold meetings and that the petitioners had the opportunity to examine WCFL's public file. It also appears that the licensee has considered and adopted several of the suggestions advanced by the petitioners. Under these circumstances therefore we do not believe that a full evidentiary hearing is warranted merely to explore the reasons underlying the licensee's refusal or reluctance to implement all of the petitioners' suggestions. "How a licensee responds to what may be conflicting and competing needs of regional or minority groups remains largely within its discretion. It may not flatly ignore a strongly expressed need; on the other hand, there is no requirement that a station devote twenty per of its viewing [or listening] public." Stone v. F.C.C., supra. Further, while under an obligation to ascertain and program for community [*426] needs (i.e., problems), no broadcaster can be aware of everyone's problems all of the time. Thus, interested citizens who feel that a station's performance is inadequate should so advise the broadcaster to provide him with an opportunity to consider their ideas and suggestions. Such discussions will, obviously, be more meaningful and effective if conducted throughout the license term. Such was not the case herein. Instead, the record indicates that the discussions between the licensee and petitioners were conducted just prior to renewal time and in the face of a license renewal challenge. Experience has shown that fruitful discussions are difficult to achieve under such circumstances. We wish to reaffirm our prior expression of policy therefore that community-broadcaster discussions be conducted throughout the license term as the best and most effective method of improving local service and resolving local complaints.
29. In view of the foregoing, we find that petitioners have failed to raise any substantial and material questions of fact which would warrant exploration in an evidentiary hearing. We further find, upon our consideration of the above-captioned license renewal application for Station WCFL and other documents cited herein, that the Chicago Federation of Labor and Industrial Union Council is qualified to be a licensee, and that a grant of the application would serve the public interest, convenience and necessity.
30. Therefore, IT IS ORDERED, That the petition to deny filed by the Better Broadcasting Council, Inc., the Task Force for Community Broadcasting, and the Illinois Citizens' Committee for Broadcasting IS DENIED.
31. IT IS FURTHER ORDERED, That the above-captioned license renewal application for Station WCFL, Chicago, Illinois IS GRANTED.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
In the face of some very serious allegations, the majority today renews the license for WCFL, Chicago, Illinois, and dismisses a petition to deny that license filed by the Better Broadcasting Council, Inc., the Taskforce for Community Broadcasting, and the Illinois Citizen's Committee for Broadcasting. The majority's cavalier treatment of petitioners' claims in this case -- like its casual approach to similar petitions in prior cases -- raises substantial questions about this Commission's desire to ensure that its licensees operate in the public interest. I dissent.
Petitioners raise several searching questions regarding the licensee's ability to serve its community of listeners. Among other charges, petitioners claim that WCFL has engaged in over commercialization, that the licensee misrepresented WCFL's past programming by improperly logging music programs as Public Affairs presentations, that the licensee engaged in insidious censorship by dismissing one of the station's [*427] announcers for political reasons, and that the licensee exhibited bad faith by failing to negotiate with petitioners.
As to the petitioners first claim, it is undisputed that WCFL exceeded 18 minutes per hour of commercial material four times during its composite week. It is also undisputed that WCFL adheres to the NAB Code which provides that radio stations should not exceed this 18 minute limit. Nor is it disputed that in its 1967 renewal application, WCFL promised not to exceed the Code's 18 minute limitation.
It would seem to follow, therefore, that WCFL's licensee lied to this Commission when it promised to abide by the NAB Code's commercialization provisions. Misrepresentation, of course, is a serious problem, so the majority tries to wriggle out from under the implication of these clear facts.
First, the majority notes that WCFL exceeded its commercial limit in only four of the 136 hours of its composite week. It happens, however, that each of these four instances -- one of which amounted to a minute of over commercialization -- occurred during "rush hour" traffic, time when most people are listening to their car radios. The majority, however, places no significance on this fact; it suggests, instead, that four violations of a licensee's promised commercialization time constitute a de minumus situation. Is this the case, regardless of the fact that all the violations occur during prime radio time? Further, how many violations are necessary before the protection of the majority's "de minimus" rubric no longer attaches? The majority doesn't say, because it doesn't know.
Second, the majority -- without any inquiry whatsoever -- accepts the licensee's unsupported contention that its over commercialization was the product of inadvertence. This may, indeed, have been the case. In such event, however, one would be entitled to ponder why such inadvertence only took place during the prime "rush hour" time. In any event, the question whether the station's over commercialization was, indeed, the product of inadvertence is one of fact; it is also unresolved, and cannot be determined in the absence of a hearing.
The majority, however, notes that it is "willing to accept the possibility that human error could produce an occasional excess over the stated maximum and [it does] so in this case." Why is the majority so eager to accept the licensee's unsupported explanation in the absence of an inquiry? The answer can only be that the majority does not want to know the truth, for that truth could well cash doubt upon this licensee's ability to serve the public interest. That could, in turn require that we deny this license renewal, and it is well established that this Commission is loath to do that.
Petitioners also contend that the licensee misrepresented its past programming by classifying two entertainment music programs as public affairs programming. The licensee concedes that one of these programs may have been misclassified. The majority, again not eager to disagree with the licensee, also finds that there is merit to the concession that this show was misclassified. Yet, in the face of such a finding, the majority concludes that such misclassification does not warrant a hearing to determine whether or not the error was deliberate.
[*428] Instead, the majority is content to note that program classification is a difficult task. It adds:
[absent] other evidence, the mere fact that a licensee misclassifies one or two programs does not compel the conclusion that the licensee is guilty of intentional wrongdoing.
This, of course, is true -- misclassification, without a hearing, does not require us to find that the misclassification was intentional. But the obvious point is that there must be a hearing on the issue of intent. The majority relies on the statement quoted above to justify its refusal to designate this issue for a hearing. That sort of logic is simply absurd.
Petitioners claim this admitted misclassification was an intentional misrepresentation. The licensee argues that it merely made an unintentional error in judgment. Once again, the majority accepts the licensee's side of the story without any attempt to discover the truth.
Petitioners also contend that WCFL's licensee discharged a WCFL news reporter because the mayor of Chicago was displeased with that announcer's over-the-air reports. If true, such a fact would cast considerable doubt upon the licensee's ability to serve the public interest by reporting the news fairly and objectively.
The majority, however, again finds that petitioners' allegations do not warrant a hearing. These charges are supported by articles from two newspapers. The majority notes that under § 309(d)(1) of the Communications Act the truth of a petitioner's charge must be established before a hearing will be designated on that issue. The majority then concludes, without reference to any authority, that petitioners' newspaper articles do not satisfy that standard of proof.
Section 309(d)(1) of the Act does, indeed, require that petitions to deny be accompanied by an affidavit of a person or persons with personal knowledge of the facts alleged. The majority suggests, however, that this section demands, in effect, that the allegations in a petition to deny be supported by the sort of factual showings that can only be determined through an evidentiary hearing. That sort of reasoning, of course, places the cart before the horse. If, prior to hearing, these petitioners must establish the truth of their claim that the licensee dismissed an employee for politically insidious reasons, then no hearing would be needed. Given these facts we would need only make the policy decision that the licensee was in violation of the publics' interest in objective news reporting.
Petitioners have charged that an announcer was dismissed. That is not denied. They charge also that he was dismissed for political reasons, and that charge finds support in various news reports. In my opinion, such a charge is both serious and incapable of concrete proof prior to a hearing. By refusing to designate this issue for hearing -- and by failing to advise these petitioners of just what sort of added information is necessary before a hearing will be required -- the majority has, in effect, decided that nobody can ever win a hearing on a claim that a licensee has censored its news reporting for unlawful purposes.
Finally, petitioners contend that the licensee exhibited bad faith with respect to the public it is licensed to serve by refusing to discuss petitioners' proposals for improving the station's service and by using dilatory tactics in attempting to discourage review of the station's public file.
[*429] The licensee's alleged attempts to prevent petitioners from examining its public file apparently failed, so the majority refuses to inquire into the means by which the licensee allegedly attempted to discourage citizen review. The majority also rationalizes its refusal to inquire into the validity of petitioners' charges on the grounds that a meeting between petitioners and the licensee was, in fact, held. But petitioners do not deny the existence of such a meeting. They contend, rather, that the meeting was useless due to the licensee's allegedly stubborn refusal to discuss anything of substance.
The lesson of the majority's analysis as to this issue is that a licensee who meets with community groups may be as surly and intransigent as he likes -- so long as the meeting is held.
The sort of bureaucratic irresponsibility reflected by today's decision is -- even to one who has seen a lot of irresponsibility on the part of this agency during the past six and a half years -- truly incredible. Petitioners only possible relief at this juncture is from the courts.