In Re Application of MAHONING VALLEY BROADCASTING CORP. For Renewal of Licenses for STATION WBBW, YOUNGSTOWN, OHIO and STATION WBBW-FM *, YOUNGSTOWN, OHIO
· Subsequent to the filing of pleadings in this proceeding, the call letters of WBBW-FM have been
changed to WQOD (FM), effective May 1, 1972.
File No. BR-2247; File No. BRH-935
FEDERAL COMMUNICATIONS COMMISSION
39 F.C.C.2d 52
RELEASE-NUMBER: FCC 72-1001
November 15, 1972 Released
Adopted November 8, 1972
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT; COMMISSIONER HOOKS CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT.
[*52] 1. The Commission has before it for consideration: (1) the above captioned license renewal application filed on July 6, 1970, by Mahoning Valley Broadcasting Corporation (WBBW); (2) a petition to deny each of the above-captioned applications, filed October 1, 1970, by the Black Broadcasting Coalition and others (hereinafter BBC); n1 (3) WBBW's opposition to the petitions to deny, filed October 14, 1970; and, (4) BBC's reply filed November 4, 1970. n2
n1 On August 27, 1970, the Commission granted BBC a 30-day extension of time in which to file petitions to deny WBBW's renewal applications.
n2 On October 29, 1970, BBC's request for a more than one month extension of time in which to file its reply was denied. However, the filing date was extended until November 4, 1970.
2. WBBW raises a question concerning the standing of the petitioners in this case. The BBC is an "umbrella" organization whose members include various community organizations in the Youngstown area. We believe the standing of the BBC is clear. Office of Communications of the United Church of Christ, et al. v. F.C.C., 123 App. D.C. 328, 359 F.2d 944 (1966).
3. BBC criticizes WBBW's ascertainment of community problems on several grounds. It is alleged that a single ascertainment study was conducted for both WBBW and WBBW-FM. BBC also alleges that WBBW failed "to include any description of the stations' service area or the major groups and interests of which it is comprised," and that "no information is provided concerning the sampling technique employed or the selection of the leadership or general public samples." Further, according to BBC, the 46 interviews with community leaders and 42 interviews with members of the general public are numerically [*53] insufficient. Although BBC acknowledges that WBBW "... made a special effort to consult with representatives of the Black community...", it is alleged that "... the station's overall lack of concern for minority groups remains, as indicated by its total failure to consult with members of other minority groups, such as the Spanish speaking community." BBC also alleges that WBBW has not provided a detailed discussion of community needs and interests, nor has there been an attempt to differentiate between the problems of minority and majority communities. BBC charges that WBBW's inclusion of a listing of Black interest items carried on "Open Mike" shows indicates the station's "superficial preoccupation with the Black community". Finally, BBC states that WBBW's "nebulous description of a contemporary music format... provides little or no insight into the station's understanding of the Youngstown Community."
4. In opposition, WBBW first states that BBC was incorrect in stating that WBBW had conducted a single ascertainment survey. On the contrary, licensee submits that it is continuously ascertaining the area's problems "... through its Community Service Director, Mr. Mizell 'Chick' Stewart, Sr., by its continuing contacts with prominent community leaders and groups as they utilize the public service facilities of the Station, by its public affairs programs and news programs, by written contacts urging the use of the Station's facilities, and by continuing contact with the leaders of the various educational governmental and civic organizations." WBBW also states that it conducted 104 interviews with members of the general public. In this connection, WBBW points out that the 42 individuals listed in its renewal exhibit were clearly identified as "A representative list of area residents with whom dialogued surveys were conducted." This is all that is required, according to licensee, since the Commission does not require an applicant to submit a list of all contacts made. In opposition to BBC's allegation that the station's ascertainment showing contained no description of the station's service area or the groups and interests of which it is comprised, WBBW points to its list of civic organizations, interests and groups consulted in the survey. Licensee also includes as an exhibit in its opposition several tables of population statistics. Regarding the allegation that it has shown lack of concern for minority groups, WBBW contends that it consulted with a cross section of the community and that the national origin of persons contacted was not requested. The licensee also states, contrary to BBC's allegation, that its renewal application does provide a detailed discussion of community problems. In this connection, WBBW points to Exhibits 3, 4, and 5, of its renewal applications, which list the various individuals, groups, and organizations in the community which were consulted, the problems ascertained, and some of the types of programs proposed.
5. In defending its inclusion of the list of 28 programs on "Open Mike" which were of interest to the Black community, WBBW states that they were "... merely representative programs where the guests were all Black," Further, WBBW states that it has used the "Open Mike" show to meet many of the current needs and interests of the total community, including the Black community. Some of the topics included were problems of the city, drugs, city transportation, war in [*54] Vietnam, city health problems, community sewer tax issues, mental health, welfare, parks and recreation, and many others. In addition, licensee states that "To Be Equal", a local weekly program series produced in cooperation with the local Urban League, is specifically designed for the Black community. This program began in March 1970 and is aired each Saturday at 6:15 p.m. on WBBW-AM and FM. The licensee also states that it carries a series entitled "Did You Know", which is dedicated to highlighting Black history. This series, according to licensee, appears 30 times each week on both WBBW-AM and FM. Another program which WBBW states is meeting community needs is "Job Call", a weekly 15-minute program presenting job availabilities within the Youngstown market. "Opportunity Line" and "Life Line" are two other shows which, WBBW contends, serve the needs of the Youngstown area. Finally, in opposition to BBC's allegation that its application contained a "one-page nebulous description of a contemporary music format, WBBW alleges that no such description exists in its application since it does not have a contemporary music format.
6. In reply, BBC states that it has alleged not a total lack of consultation with the Black community, but an inadequate consultation and responsiveness and an overall insensitivity to the problems and needs of the Black community. BBC also challenges several of the consultations listed in WBBW's application by submitting statements of the directors of three organizations who state that the individuals consulted by WBBW were not authorized to represent their respective organizations. BBC also includes the statements of two other individuals who were consulted by WBBW. These individuals state, in essence, that the interviews were ineffectual. Petitioner states that its conclusion that WBBW conducted a single ascertainment study for WBBW-AM and WBBW-FM was based on the fact that the two renewal applications contained "identical" supporting documents, and by the fact that the licensee submitted a single opposition and motion to dismiss for both stations. The licensee's ascertainment, according to BBC, does not meet the standards of the Commission's 1968 Public Notice on Ascertainment of Community Needs by Broadcast Applicants, 13 RR 2d 1903. n3 BBC next alleges, in its reply, that WBBW's Community Service Director, Mr. Mizell Stewart, was hired without BBC's being consulted regarding his qualifications. Mr. Stewart, it is alleged, is unqualified for the position since he works fulltime for the Youngstown Police Department. It is further alleged by BBC that Mr. Stewart is an older man who is not attuned to the attitudes of younger people in the community. Regarding WBBW's claim that it actually contacted at least 104 members of the general public, BBC acknowledges that the applicant is not required to submit supporting data. However, petitioner asserts, "Certainly, when a Petition to Deny has been filed, the licensee ought to find it in his best interest to indicate exactly what ascertainment efforts were taken." It is next alleged in BBC's reply that only 18 of the 42 residents were from the Youngstown area and only two of that number were Black. Petitioner submits statements from these two individuals which state [*55] that they were not personally consulted by WBBW. BBC also asserts that WBBW has ignored the Spanish-speaking population of Youngstown. In this connection, it is alleged that this group includes 8 percent of the population of Youngstown, that it is a substantial as well as cohesive segment of the population, and that its members are readily identifiable by surname.
n3 These requirements were subsequently set out in the Primer on Ascertainment of Community problems by Broadcast Applicants, 27 FCC 2d 650 (1971).
7. In its reply, BBC further contends that WBBW's use of call-in programs is "a cheap and easy format." Petitioner also charges that WBBW failed to submit any evidence in support of its claim that it carried more than 28 programs of service to the Black community. Regarding WBBW's establishment of the program "To Be Equal", BBC alleges that it is merely "a token gesture", although "[it] is a start in the right direction..." BBC also contends that the institution of the vignettes "Did you Know" was a good start, but it is no way representative of WBBW's past or proposed programming and can barely begin to compensate for its past and proposed inadequacies. In this connection, BBC alleges that the licensee's other programs, "Job Call", "Opportunity Line", and "Life Line", are designed for the community as a whole and not for the Black community in particular. Petitioner contends that WBBW does not distinguish between its AM and FM facilities, yet such treatment is somewhat misleading. Thus, BBC notes that "WBBW-FM is increasingly a 'background music' station and WBBW-AM is wedded to a call-in format for public affairs programming."
8. With respect to WBBW-AM's proposed programming, BBC first alleges that the station proposes to reduce the time devoted to programs in the categories of news, public affairs, and "other". Thus, BBC states that news will be reduced from 11.1% to 10.4%; public affairs will be reduced from 9.4% to 6.7%; and "other" programming will be reduced from 7.9% to 3.7%. Petitioner next alleges that the WBBW-AM application lists three weekly programs related to Blacks which it intends to continue in the next license period. BBC claims that all three of those programs, "Job Call", "To Be Equal", and "Bethel Church of God in Christ", were begun within the past six months as a result of its efforts. It is alleged further that "[these] minimal station gestures are neither sufficiently responsive to the needs and interests of the Black community to be acceptable nor are they in any way indicative of WBBW's programming record over the past license period." Petitioner contends that WBBW's call-in shows, which it describes as the chief means of discussing public issues, are not sufficient to resolve public questions. With respect to WBBW-FM's proposed programming, BBC alleges that 85% of the time will be devoted to recorded music, while only 5.3% will be devoted to news, 0.8% to public affairs, and 1.9% to "other" programming. Since petitioner presumes that most of WBBW-FM's non-entertainment programming will be duplicated from WBBW-AM, it is alleged that "... the station... will not add to the community's diversity of informational, instructional or religious programs."
[*56] 9. In opposition, the licensee maintains that its proposed reductions in the program categories of News, Public Affairs, and All Other programming, Exclusive of Entertainment and Sports, are insignificant. The licensee also states that the amount of programming proposed in these categories is sufficient to meet the problems in the Youngstown area. The licensee states further that, although it has proposed reductions in the amount of broadcast time it proposes to devote to these programming categories, WBBW is nevertheless broadcasting the same amount of News, Public Affairs, and All Other programming presently being broadcast. It is the licensee's position that its AM renewal Exhibit 5, which lists 33 programs or program series to be broadcast, meets the needs and interests of the area. In this connection, WBBW characterizes its 12 hours of public affairs programs a week on its AM facility as exemplary in comparison with the average radio station. WBBW alleges that BBC erred in its conclusion that the three programs for the Black community were initiated by the station as a result of the efforts of the petitioner. Rather, the license contends, all three programs were begun prior to any dialogue with the petitioner: "Job Call" on May 18, 1968; "To Be Equal" on March 21, 1970; and "Bethel Church of God in Christ" on July 21, 1963. Finally, WBBW disagrees with petitioner's conclusion that its audience participation programs, "Open Mike" and "Life Line," do not contribute to the resolution of public questions in the Black community or within the Youngstown community as a whole. Such a conclusion, according to WBBW, "... is self-serving and contrary to the Commission's pronouncements that these types of public affairs programs are wanted and needed to fulfill the public's desire to discuss current problems of any area."
10. Petitioner, in reply, contends that the licensee has given no indication of the nature of its contemplated format change or its effect on the station's service to the community. BBC also alleges that call-in shows are informal, unstructured, often lightweight and not exemplary programming.
11. With respect to WBBW's past programming, BBC alleges that licensee's list of past programs which it intends to continue in the future greatly exceeds its list of typical and illustrative programs presented during the past year. The only program which offered any potential for local participation by minority groups, according to BBC, was "open Mike". Petitioner further alleges that no regular series are listed in the areas of public affairs, instructional or religious which relate specifically to Blacks or other minorities.
12. WBBW, in opposition, submits that BBC's allegations regarding its past programs are in error and not factual. WBBW states that Exhibit 5 is a list of typical programs and program series which the station presently broadcasts and plans to continue while Exhibit 7 is a partial listing of programs carried. The following programs listed in Exhibit 5, licensee asserts, specifically relate to all minorities in the Youngstown area: "Open Mike", "Education News Special", "Consumer Time", "Watch Your Step", "Your Social Security", "The Veteran's Show", "Concert Preview", "Northwestern Reviewing [*57] Stand", "Valley Tales", "Job Call", "Georgetown Forum", "Life Line", "To Be Equal", "Party Line", Business Review", "Mt. Calvary Pentecostal Church" and "Bethel Church of God in Christ".
13. In reply, BBC states that WBBW has failed to demonstrate the alleged error in petitioner's analysis of its past programming. Petitioner further states that the licensee has not supplemented its "partial listing" in Exhibit 7. Finally, BBC characterizes as absurd WBBW's statement that all of the public affairs, instructional and religious programs listed in Exhibit 5 specifically relate to minorities in the Youngstown area. In this connection BBC questions, inter alia, whether "Bethel Church of God in Christ" relates to the minority Jewish or Lebanese communities, or whether "The Veteran's Show" relates to the female minority.
14. BBC next alleges that the station exceeded the 18 minute per hour commercial limit set by the NAB Code on two occasions in the composite week. Licensee states that it exceeded its policy of limiting commercial matter to 18 minutes on two occasions. In one hour it exceeded its limit by 30 seconds and in the other hour by 20 seconds. It is licensee's contention that these two instances do not violate the station's policy or the Commission's.
15. Petitioner alleges that on September 29, 1970, Mrs. Margaret Linton Visited WBBW's studios to inspect the station's policy relating to minorities. However, according to Mrs. Linton's statement, the station personnel were unable to produce the document. Petitioner alleges that this is a clear violation of Section 1.580 of the Commission's rules. n4 The licensee denies violation of the Commission's rule. It contends that Mrs. Linton requested the public file from a female staff member whose responsibility does not include knowledge of the location of the public file. All other staff members were out to lunch, according to licensee. WBBW further contends that if Mrs. Linton had returned after lunch the public file would have been made available to her as it had been on another occasion. In reply, BBC contends that the Commission's rule requiring the availability of a public file does not contain an exclusion for lunch hour.
n4 Petitioner erroneously cites Section 1.580. The rule involved is Section 1.526.
16. BBC contends that WBBW has been totally inconsiderate in responding to its efforts to make broadcasting relevant to the needs of Black people and other minorities. In particular, BBC alleges that it submitted three specific proposals to the station and on each occasion the licensee's response showed no genuine interest in seeking solutions to the many community problems. The licensee, in opposition, states that it has responded to each proposal presented to it by BBC and that it will continue its dialogue with petitioner and other representatives [*58] of the community. Further, WBBW submits that it does have a genuine interest in seeking solutions to the apparent problems of the Black community.
17. Finally, BBC alleges that WBBW employs only four Blacks out of a total of 32 persons. Of these four, one is a fulltime custodian, one a part-time community service director and one a part-time clerk typist. It is alleged that this record of employment is not in accord with the Commission's rules concerning equal employment opportunities. BBC further alleges that it does not appear that WBBW has any affirmative plans to conform with the Commission's rules. The licensee disagrees with petitioner's conclusion and asserts that it is an equal employment opportunity employer. To demonstrate its compliance with the federal and local laws governing employment, WBBW submits a copy of the station's employment application. BBC states in reply that submission of this application is merely an empty gesture if the station continues to employ only token Blacks in non-policy making positions.
18. Petitioner has alleged that the licensee's past programming has not been in the public interest. As we stated in the 1960 Network Programming Inquiry, 25 F.R. 7291:
... 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.
The Commission has never imposed upon licensees any requirement that they broadcast certain types of programs in order to fulfill their public interest obligation. Programming is generally a matter left to the discretion of the individual licensee. It is not the Commission's function to sit as a final arbiter to evaluate the propriety of a licensee's programming decisions. Rather, it is our duty to determine whether or not the licensee has made a reasonable effort to deal with the problems of his service area.
19. The renewal application for WBBW-AM indicates that during the composite week the station broadcast 14 hours and 57 minutes of news (11.1% of total time on the air), of which the licensee estimates that 33% of this time is regularly devoted to local and regional news. WBBW-AM also broadcast 12 hours and 43 minutes (9.4% of total broadcast time) in the category of public affairs, and 10 hours and 36 minutes (7.9% of total broadcast time) in the category of all other programming, exclusive of entertainment and sports. In addition, the station also broadcast 211 public service announcements.
20. One of the major programs relied upon by licensee to fulfill its public service obligation is "Open Mike". During the past license period "Open Mike" has served as a forum for a diverse range of community organizations and groups. Broadcast each weekday morning for two hours, "Open Mike", through a varied format of group discussions, interviews, and call-in participation by listeners, has covered such topics as sewer taxes, drugs, civil defense, city health, water service, [*59] summer jobs for youth, Vietnam, and transportation. "Open Mike" has also featured interviews and discussions with leaders of the Youngstown Black community. These leaders have discussed such issues as the welfare family, rehabilitating homes for the inner city and civil rights. Other programs which were broadcast to meet community needs include: "To Be Equal", a 15-minute program broadcast each Saturday and produced in cooperation with the Urban League; "Did You Know", 40 to 90-second vignettes about Black history broadcast 30 times each week; "Job Call", a 15-minute program broadcast each Saturday presenting local job opportunities; "Life Line", a call-in show produced in cooperation with the Youngstown Council of Churches; and "Education News Special", broadcast weekdays and produced by the Ohio Education Association.
21. On the basis of the information submitted in licensee's renewal application and its opposition pleading, summarized above, we conclude that WBBW-AM's past programming has been in the public interest. Petitioner's arguments concerning WBBW's past service is merely conclusory. BCC's statement that "No regular series are listed in the areas of public affairs, instructional or religious which relate specifically to Black or other minorities", misconstrues the Commission's requirement that a station serve the needs and interests of its community. Where it appears that a station has followed a discriminatory policy in its over-all programming by failing to serve a substantial minority in the community, a substantial and material question of fact is raised concerning the licensee's service in the public interest. Radio Station WSNT, Inc., 27 FCC 2d 993 (1971). Here, however, there is no such evidence of discriminatory programming; nor is there any evidence that non-Blacks have been accorded different, more positive treatment. Stone v. F.C.C., D.C. Cir. Case No. 71-1166 (June 30, 1972). A licensee has wide discretion in deciding the best manner in which to effectively respond to community problems. Therefore, a program series which discusses numerous community problems, including those of interest to the Black community, should not be dismissed for failure to serve the Black community merely because it is not directed specifically to Blacks. Capitol Broadcasting Co., 28 FCC 1135 (1965). The Evening Star Broadcasting Company, 27 FCC 2d 316 (1971), affirmed sub nom. Stone v. F.C.C., supra.
22. BBC does not make any specific allegations regarding WBBW-FM's past performance. Instead, BBC merely states that the station proposes to continue its good music format. The BBC alleges that this proposal is insufficient to meet the needs and interests of the Youngstown community. This allegation, without more, is too general in nature to require exploration in an evidentiary hearing. Further, most radio stations follow a specialized format; e.g., top-40, soul, all-news, classical, country-western, etc. However, the ultimate test of public service responsibility is not the particular entertainment format utilized but, rather, whether the station is providing informational programming -- news, public affairs, and all other programming, exclusive of entertainment and sports -- to serve the needs and interests of the public it is licensed to serve. Such programming may, of course, be tailored to the particular format of the station. See Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 FCC 2d [*60] 650 (1971). In the present case, WBBW-FM broadcast "good music in stereo" 85 per cent of its total air time. Also, as disclosed by its composite week figures, WBBW-FM broadcast 5 per cent news, 0.7 per cent public affairs, and 2.9 per cent all other programming, exclusive of entertainment and sports. Additionally, the station broadcast 128 public service announcements. There is no information before us which indicates that this programming has failed to serve the needs and interests of the Youngstown community; and, accordingly, it is concluded that WBBW-FM's past programming service has been in the public interest.
23. Petitioner alleges that the licensee's ascertainment of community problems is deficient. Our review of WBBW's ascertainment efforts, however, leads us to conclude that those efforts are in compliance with our requirements. The showing required of an applicant in response to Part I, Section IV-A of the renewal application (Ascertainment) is set forth in the Commission's Primer on Ascertainment of Community Problems by Broadcast Applicants, supra. A broadcast applicant is required to conduct personal consultations with community leaders representing a cross-section of the community and to survey the general public in order to determine the problems, needs and interests of the community. After ascertaining community problems, the applicant must then evaluate them to determine their relative importance so that he may propose programming reasonably designed to meet those problems, needs and interests. The number of person consulted is not the most important factor in judging whether a licensee has conducted a good survey, because the number of such consultations often depends on the size of the station's staff. Universal Communications Corp., 27 FCC 2d 1022 (1971). Rather, what is required is that the licensee make reasonable and good faith efforts to consult with a representative cross-section of the community.
24. WBBW's renewal applications indicate that consultations were conducted with 46 community leaders representing a wide cross-section of community interests. Included among those interviewed were representatives of the following organizations: NAACP, Neighborhood Youth Corps, Chamber of Commerce, Civil Defense Office, County Sheriff, Planned Parenthood Association, Alcoholic Clinic, United Appeal, and others. The licensee also contacted at least 42 members of the general public. Although petitioner has alleged that WBBW's survey ignored minority groups other than Blacks, it has submitted no factual data to support its claim. The one affidavit and five statements appened to BBC's reply do not detract from the validity of WBBW's consultations. These statements allege either that the individuals interviewed were confused as to the purpose of the interview or that they were not asked their opinions about WBBW's operation. In this connection, we emphasize that the purpose of these consultations is to ascertain community problems. Thus, questions pertaining to the station's programming policies or employment practices are not directly relevant to the purpose of the consultations. See Primer Question and Answer 18, 27 FCC 2d at 684, 685. Moreover, there is no requirement that an applicant must consult with the head of an organization. To be a community leader, one does not have to hold a position such as director, president, or chairman. We also note that [*61] there is no requirement that a licensee conduct a separate ascertainment for each of its stations in the same city. Such a requirement would amount to an unnecessary duplication of effort, a result which we have attempted to avoid. See Primer, supra, paragraph 15.
25. As a result of its consultations with community leaders and members of the general public, WBBW compiled a list of 25 problems including, among others, the following: problems and dangers of pollution; the need for higher quality education and better schools; more adequate law enforcement; stronger controls for the drug and narcotics problems; more effective methods for the prevention of crime; more adequate and reasonably priced housing; better understanding between blacks and whites; a better transportation system; more jobs and employment for youth of the community; and solution for taxation problems. To meet these ascertained needs, WBBW proposes to continue the same programs it broadcast in the past license period as discussed at paragraph 18, supra. We believe that a promise to continue to carry such programs as "Open Mike", "To Be Equal", "Did You Know", "Job Call", and "Education News Special" which have dealt with a wide variety of community problems, constitutes a sufficient programming proposal to meet community problems in the new license period. As in the past license period, these program proposals relate only to WBBW-AM. We also conclude for the same reasons set forth in paragraph 22, supra, that the proposed service for WBBW-FM is adequate to meet the needs and interests of the community.
26. Petitioner's allegation that WBBW-AM proposes to reduce broadcast matter in the categories of news, public affairs, and "other" fails to raise a substantial and material question of fact which requires exploration in a hearing. The Commission has not adopted quantitative standards by which to judge a licensee's performance in the context of a regular renewal. Instead, the amount of such programming has been left to the sound discretion of the licensee based upon his ascertainment of community problems, the format of his station, the size of his market, the availability of other broadcast outlets in the markets and other factors which may affect the licensee's operation of his station. Absent evidence that the licensee's percentage proposals will not meet ascertained community problems or that the licensee has abused its discretion, the Commission will not seek to second guess the licensee. No such evidence has been presented here. In view of the number of variables involved in the operation of a broadcast station, a licensee's program proposals are not expected to remain static. What is important is that a licensee live up to its programming promises. No question of promise versus performance has been raised in this proceeding. In fact, WBBW-AM's programming during the 1970 composite week in the categories of news, public affairs and "other" exceeded its 1967 proposals. Finally, we note that although WBBW-AM's 1970 percentage proposals are less than its 1967 proposals, the licensee states, in its opposition, that it is presently carrying the same amount of programming in the categories of news, public affairs and "other" as the station carried during the past license period.
27. Petitioner has alleged that the licensee's employment record is not in compliance with the Commission's Equal Employment Opportunity [*62] Rules and that the licensee has no affirmative plans to establish compliance. We note, by way of background, that on June 4, 1969, the Commission adopted rules to prohibit discrimination in the employment practices of broadcast licenses. Nondiscrimination in Broadcast Employment, Docket No. 18244, FCC 69-631, 18 FCC 2d 240 (1969). At the same time we issued a Further Notice of Proposed Rule-Making, 34 F.R. 9288, requesting comments with regard to a proposed annual reporting requirement and a proposed requirement for the preparation of equal employment opportunity programs to be furnished by existing stations in the applications for construction permits, assignments or transfers of control, and renewals of licensee. By Report and Order adopted May 20, 1970, released June 3, 1970, 23 FCC 2d 430, we adopted a rule, 47 C.F.R. 1.612, requiring broadcast permittees and licensees to file an annual statistical report on their employment makeup (FCC Form 395), and a requirement that broadcast applicants and licensees submit an equal employment opportunity program (Section VI of FCC Forms 301, 303, 309, 311, 315, 340, and 342). By Public Notice dated October 22, 1970, the Commission advised all broadcast licensees and permittees that they would be required to file their initial annual statistical reports of their employment makeup on or before May 1, 1971. The Commission also advised broadcast applicants and licensees who would be filing applications on or after January 4, 1971, that they would be required to file an equal employment opportunity program in accordance with the guidelines delineated in Section VI of the various broadcast application forms.
28. Petitioner's allegations concerning WBBW's employment policies and practices are based solely upon information and belief. Petitioner cites the number of minority persons employed by WBBW and concludes that the licensee has engaged in employment discrimination on the basis of race. No evidence of specific instances of discrimination indicating a pattern of discrimination has been submitted. Nor has petitioner submitted any evidence indicating that the licensee's employment policies contain artificial barriers to employment. While it is recognized that an extremely low rate of minority employment may raise appropriate questions requiring administrative inquiry, the facts in this proceeding indicate that the licensee is making reasonable and good faith efforts to assure nondiscriminatory employment policies and practices and, in particular, to improve the employment status of minorities. An examination of the stations' annual employment reports (FCC Form 395), which are now on file with the Commission, indicates that the licensee is taking affirmative steps to improve its minority hiring. The May 1971 report indicates that WBBW employed 21 persons full time, including one minority service worker. The stations also employed 11 persons part-time, including two minority professionals and one minority office and clerical worker. The stations' 1972 report indicates that WBBW employed 23 persons full time, including one minority professional, one minority office and clerical worker and one minority service worker. The 1972 report also states the WBBW employed six persons part-time, including two minority professionals. These facts also disclose that the percentage of minorities employed by the licensee (i.e., 13%) fall [*63] within a range of reasonableness when compared with the percentage of minorities (approximately 9 per cent) in the Youngstown-Warren standard metropolitan statistical area. n5 On the basis of the information available to us, we conclude that the licensee is making a reasonable effort to maintain policies and practices which assure nondiscrimination in employment.
n5 Bureau of the Census, Advance Report on Population Characteristics PC (V2)-37, February 1971, discloses the following population characteristics for Youngstown and the Youngstown-Warren Metropolitan Area:
Youngstown-Warren metropolitan area:
29. We find petitioner's allegation concerning licensee's commercial practices to be without merit. Although the licensee did exceed its self-imposed commercial ceiling of 18 minutes on two occasions, this does not constitute a pattern of over-commercialization.
30. Petitioner alleges and licensee admits that on one occasion the station's public file was not available for inspection by a representative of petitioner. Licensee's explanation that all the employees who were responsible for the public file were out to lunch is not a satisfactory reason for failure to make the file available. Section 1.526 of the rules provides that a file be available at the main studio of a broadcast station during regular business hours for inspection by the public. It is the licensee's responsibility to make any necessary arrangements to have the public file available at all times during its regular business hours. We note, however, that licensee did make its public file available to petitioner on at least one other occasion and the violation of Section 1.526 does not appear to be repeated. We believe that no further action is necessary on this matter.
31. The pleadings indicate the parties have drawn different inferences and conclusions from the facts presented and, to some degree, have become involved in irreconcilable disputes as to the facts themselves. The existence of factual disputes does not give rise in every instance to the requirement that a hearing be held. This requirement does not arise under Section 309(d) of the Act unless the Commission finds that it involves substantial or material questions of fact which have direct bearing on the determination of whether or not the public interest would be served by a grant of the application. Stone v. F.C.C., supra. Based on our review of the licensee's renewal applications and the matters discussed herein, we find that BBC had failed to raise substantial and material questions of fact which establish a prime facie case for denial of WBBW's licenses. We also find that a grant of Mahoning Valley Broadcasting Corporation's applications would serve the public interest, convenience and necessity.
32. In reaching our conclusions, we are not unaware of the concern being expressed by minority groups about the responsiveness of the broadcast media to their local problems. The Commission, of course, cannot waive or ignore the pleading standards set forth in Section [*64] 309(d) of the Act to accommodate petitioners. Clearly, if members of the public choose to wait until the end of a license term and then petition to deny renewal of license, they must meet the strict requirements of Section 309(d). This does not mean however that community groups are left without the means to improve local broadcast service. We have found that cooperation at the local level is the best and most effective method of resolving local problems and improving local service. Accordingly, we wish to reaffirm our prior expression of policy approving community-broadcaster discussions throughout the license term. Obviously, while under an obligation to ascertain and program for community problems, no broadcaster can be aware of everyone's needs all the time. Therefore, interested members of the public who feel a station's performance is inadequate should so advise the broadcaster to give him the opportunity to consider their ideas and suggestions. Such discussions will be more effective if conducted throughout the license term and not only at renewal time.
33. Accordingly, IT IS ORDERED, That the petitions to deny filed by the Black Broadcasting Coalition and others are denied.
34. IT IS FURTHER ORDERED, That the above-captioned applications for renewal of licenses of Stations WBBW and WQOD (formerly WBBW-FM), Youngstown, Ohio, are hereby granted.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCURBY: HOOKS (IN PART)
DISSENTBY: HOOKS (IN PART); JOHNSON
STATEMENT OF COMMISSIONER BENJAMIN L. HOOKS, CONCURRING IN PART; DISSENTING IN PART
In Re: Renewal Proceedings in Youngstown and Columbus, Ohio
I concur with the majority on these cases insofar as its holding that the petitions to deny filed by the respective community groups do not attain -- or candidly, even proximately attain -- the procedural standard of specificity mandated by the Communications Act. n1 It is a hackneyed but nonetheless true, legal bromide that bad cases make bad law. Vague invective and wide-brush critique in a legal pleading requiring factual precision provides the (justifiably) ideal juridical basis for dismissal. Interested parties must dig deep, make the effort to pinpoint and factually support the exact abuses of which they complain so as to render summary rejection, with attendant loss of credibility, illegal if not impossible.
n1 Specifically, 47 U.S.C. § 309(d)(1). It must be conceded that Congress intended a strict standard when amending the statute to permit petitions to deny. Congress expected:
"... a substantially stronger showing of a greater probative value than is necessary now in the case of a post grant protest. The allegations of ultimate, conclusionary facts or mere general affidavits... are not sufficient." S. Report No. 690, 86th Cong., 1st Session, p. 3 (1959).
See Stone v. F.C.C., Case No. 71-1166 (D.C. Cir. June 30, 1972). But see, Marine Space Enclosures, Inc. v. FMC, 137 U.S. App. D.C. 9, 18 (Note 22) (1969) where the court observed that "[Procedural] requirements depend in part on the importance of the issues before the agency."
My point of departure and dissent from my colleagues stems from the fact that the perceived deficiencies in the petitioners' pleadings eliminates only inadequate petitioners from the renewal byplay -- it in no way eliminates the Commission itself. As the principal monitors of broadcaster performance, we have the main statutory duty to investigate licensee activities; especially when confronted with earnest complaints from the neighbors. The Commission frequently acts on its own volition in withholding renewals when it suspects delinquencies. It should not stand behind a procedural barrier on the apparent side of a licensee and let the matter ride simply because a complainant is without the assiduity, resources or legal acumen to mount a perfect attack. n2 Rather, the Commission should be on all sides looking critically [*68] in; not at the quality of the complainants' performance -- we do not license complainants -- but at the activities of the station. n3
n2 That the Commission need not depend solely on the procedural sufficiency of denial petitions in determining the propriety of license renewal is clearly enunciated in 47 U.S.C. § 307. In pertinent parts, that Section provides that the Commission "may officially notice" (§ 307(d)(2)) facts and circumstances and if the Commission is "for any reason unable to make the [public interest, convenience and necessity] finding specified... it shall formally designate the application for hearing on the ground or reason then obtaining". It is axiomatic that before the Commission can find "any reason" it must first look.
n3 For an astringent reminder of the Commission's appropriate role in these renewal triangles, see Judge Burger's opinion in Office of Communications of the United Church of Christ v. F.C.C., 138 U.S. App. D.C. 11, 425 F. 2d. 543 (1969).
Accordingly, while I don't believe the Commission's action here is wholly unwarranted, it certainly could have gone further in fulfilling its own statutory function in these cases.
A number of concerned citizens -- individually and as agents of various community organizations in Columbus, Ohio -- brought a petition to deny the license renewals of stations WCOL (AM & FM). The Black Broadcasting Coalition (BBC) brought a petition to deny the license renewals of stations WBBW (AM & FM) in Youngstown, Ohio. Both petitions charge that the challenged stations have failed adequately to ascertain their community's needs and that they have discriminated against various minority groups in both their programming and employment practices.
If true, these claims would surely indicate that these stations have failed to serve the public interest. See, e.g., Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 FCC 2d 650 (1971); Radio Station WSNT, Inc., 27 FCC 2d 993 (1971); Nondiscrimination Employment Practices of Broadcast Licensees, 13 FCC 2d 766 (1968), 18 FCC 2d 240 (1969), 23 FCC 2d 430 (1970). However, by holding that the pleadings of these petitioners have failed to raise "substantial or material questions of fact" sufficient to show that a grant of these renewals would be prima facie inconsistent with the public interest, the majority -- with a casual wave of its collective hand -- simply brushes these objections aside and grants the renewals.
Under the majority's Draconian approach to our vague, yet stringent pleading rules, these petitioners never really had a chance. I dissent.
In Stone v. Federal Communications Commission, F.2d (D.C. Cir. 1972), 24 RR 2d 2105 (1972), the D.C. Circuit held that, [*65] under § 309(d)(1) of the Communications Act of 1934, a petition to deny a licensee's renewal application does not mandate an evidentiary hearing unless that petition contains specific allegations of fact sufficient to show that a grant of the application would be prima facie inconsistent with the public interest. Like the FCC, the Court merely parroted the language of the Act -- failing to elucidate on the sort of allegations required.
As a result, the majority today -- as it has done repeatedly in the past -- leaves in total darkness those citizens who are concerned enough about the state of broadcasting in their communities to challenge a station's renewal application. These selfless citizens just keep filing their renewal challenges, and the majority -- after some perfunctory analysis -- just keeps telling them that their pleadings have failed to meet the requisite specificity.
Absent a clearer definition of precisely what that specificity "test" demands, I would think that -- if we are truly interested in ensuring that our licensees are "serving the public interest" (a phrase upon which the majority has also consistently declined to elaborate) -- we would at least give these challengers an opportunity to amend their complaints. See my dissent in Letter to George Corey, FCC 2d (1972). Absent such procedural flexibility, we are confronted with a pure adversary proceeding where the licensee's lawyers are pitted against the challengers -- challengers who do not seek either control or ownership of the station, but whose sole desire is that the broadcaster better serve its community's needs. In such a system, the licensee will invariably win; but the public interest can only lose.
In such circumstances, I should think that this Commission -- whose goals are, at least in theory, rather congruent with those of these and other challengers -- could do better to help serve the public interest by making a greater effort to determine the truth.
For example, the BBC argues that, in ascertaining its community's needs, the Mahoning Valley Broadcasting Corporation, WBBW's licensee, failed to consult with any members of the community's Spanish-speaking minority -- a minority which, according to the BBC, constitutes 8% of the population. This allegation is nowhere denied by the licensee. Yet, the majority finds no problems with the licensee's ascertainment study. Must the pleadings be more specific, or is the majority actually holding that a licensee need not consult with its community's minorities in ascertaining community needs? Surely, the majority cannot be reaching the latter conclusion. So, why doesn't it at least offer the petitioner some indication of the information it seeks?
In the case of WCOL, the petitioners charge the licensee with discriminatory hiring practices, something which our regulations specifically prohibit, See Nondiscrimination Employment Practices of Broadcast Licensee, supra, and a problem we have sought recently to correct -- though in a rather chaotic, half-hearted manner. See my separate statement in the Pennsylvania-Delaware Renewals, FCC 2d (1972), and the subsequent Pennsylvania-Delaware Equal Employment Opportunity Inquiries, FCC 2d (1972), and also in the Washington, D.C., Maryland, Virginia, West Virginia Letters of Inquiry, released this day.
[*66] The majority notes that the licensee's staff is 8% black and that this figure is "reasonable" given the fact that the community is 11.6% black. Aside from this totally ad hoc, unsupported declaration, the majority does not even pause to inquire as to the positions held by these minority members, nor does the majority ask whether this 8% figure represents a reduction in the number of black employees at the stations between 1971 and 1972.
In Pennsylvania-Delaware Renewals, supra, the FCC agreed that a reduction in black employment during the last two years should arouse our suspicion and should thus warrant further investigation into a licensee's hiring practices. Had the majority so inquired of Great Trails -- an inquiry which demands no more than a glance at the licensee's Annual Employment Report, Form 395 -- the majority would have discovered that while the station employed eight blacks in 1971 -- in both full and part time positions -- the station employed only seven in 1972.
Since the majority is obviously not going to investigate on its own, it should, at the very least, give the petitioners an opportunity to amplify their complaint.
Indeed, the majority has no problems permitting a licensee -- who should not need such favored treatment -- the right to amplify and to update its filings. In response to petitioners' claim that Great Trails' efforts at ascertaining its community's needs for the coming years were inadequate, the majority suggests that Great Trails could amend its renewal applications pursuant to § 1.522(a) of the rules, 47 CFR § 1.522 (a), by conducting a further ascertainment of community problems.
In Stone v. Federal Communications Commission, supra, the Court held that a licensee could, under § 1.522(a), amend its ascertainment study prior to Commission scrutiny in a renewal proceeding. However, the renewal applicant in that case had sought to amend its ascertainment study on its own motion, well before final Commission action on both the application and an opposing petition to deny. The Court held only that new ascertainment efforts, at that stage of the proceedings, did not violate our policy against upgrading, on the theory that ascertainment is prospective in nature.
There is some question -- at least in my mind -- about whether the Stone court would reach the same result where a licensee does not, on its own, find any difficulties with its ascertainment survey, but, rather, submits that study to the Commission and rests. In short, I am not convinced that just because an applicant is able to amend its ascertainment study prior to a Commission decision upon the merits of that survey, an applicant may amend its survey after the Commission has ruled it inadequate. For, in the latter case, the licensee's stubborn refusal to consult properly with its community of service should, I would think, merit some form of disapprobation.
But, assuming that the majority is correct in its reading of Stone, I cannot see why that majority distinguishes so invidiously between a licensee's right to amend its ascertainment study and, hence, its renewal application, and the right of a concerned citizen's group to amplify its pleadings. This sort of unequal treatment reveals, better than I [*67] could ever hope to accomplish, the majority's preference for our licensees at the public's expense.
If we are truly concerned about the failure of these petitioners to offer us the required specificity, then we ought to so advise them and then give them at least one opportunity to try again. To do otherwise, especially while, at the same time, giving our licensees a second bite of the ascertainment apple, is not merely inequitable, and not merely contrary to the public interest which we are directed by Congress to protect -- it is simply outrageous.