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In Re Application of RADIO ENTERPRISES OF OHIO, INC., ASHTABULA, OHIO

For the Renewal of License of Station WREO, Ashtabula, Ohio

 

Docket No. 19207 File No. BR-950

 

FEDERAL COMMUNICATIONS COMMISSION

 

38 F.C.C.2d 1099

 

RELEASE-NUMBER: FCC 73-29

 

January 18, 1973 Released

 

 Adopted January 10, 1973

 


COUNSEL:

APPEARANCES

John P. Bankson, Jr., Esq., on behalf of Radio Enterprises of Ohio, Inc.; Joseph E. Finley, Esq., on behalf of Local 880, Retail Store Employees Union; and Joseph Chachkin, Esq., on behalf of the Chief, Broadcast Bureau, Federal Communications Commission.


JUDGES:

BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT; COMMISSIONER HOOKS ABSENT.


OPINION:

 [*1099]  1.  This proceeding involves the application of Radio Enterprises of Ohio, Inc., for renewal of license for standard broadcast Station WREO located in Ashtabula, Ohio.  By Order, FCC 71-401, 29 FCC 2d 215, released April 26, 1971, we designated the above-captioned application for hearing on the following issues: n1

n1 The procedural background of this case is set forth in our designation Order and need not be repeated here.

1.  To determine whether Station WREO ceased carrying Local 880's advertisements because of economic pressure; and

2.  To determine whether, in light of the evidence on the above issue, a grant of the application for renewal of license of Station WREO would serve the public interest, convenience and necessity.

2.  Evidentiary hearings were held on August 3 and 4, 1971, before Hearing Examiner Isadore A. Honing, n2 and the record was closed on August 4, 1971.  On February 7, 1972, the Hearing Examiner released an Initial Decision (FCC 72D-7) proposing to grant the application for renewal of license of Station WREO.  In so doing, the Hearing Examiner resolved the hearing issues in Station WREO's favor and as indicated in paragraph 21 of the conclusions in the Initial Decision, summarized the proceeding as follows:

n2 By order, FCC 72-760, released August 30, 1972, we authorized these officials to change their title from Hearing Examiner to Administrative Law Judge, with the change to be effective September 6, 1972.

Since it has been concluded that Station WREO did not cease carrying Local 880's ads because of economic pressure and since there is no evidence that WREO's decision was made in deference to Hill's importance as an advertiser..;  [*1100]  it is therefore concluded that a grant of the application for renewal of license of Station WREO would serve the public interest, convenience and necessity.

3.  Now before us for consideration is a statement in support of the Initial Decision and limited exceptions which have been filed by Radio Enterprises of Ohio, Inc.  (WREO).  We have reviewed the Examiner's findings and conclusions contained in the Initial Decision and believe that they represent a fair and reasonable interpretation of the record evidence developed in this proceeding.  Therefore, except as modified in the rulings on the exceptions contained in the attached Appendix, the Initial Decision is adopted.

4.  ACCORDINGLY, IT IS ORDERED, That the application (BR-950) of Radio Enterprises of Ohio, Inc., for renewal of license for standard broadcast Station WREO, Ashtabula, Ohio, IS GRANTED.

 

FEDERAL COMMUNICATIONS COMMISSION, BEN. F. WAPLE, Secretary.


DISSENTBY: JOHNSON

 

DISSENT:

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

Since 1968 the Federal Communications Commission has sought, without any reasoned deliberation, to renew the license of station WREO, Ashtabula, Ohio.  Today, after reluctantly going through a process of "fact finding," the majority finally gets it chance and pounces on it hungrily.  The case's Kafkaesque history concluded, the license is renewed.

Radio Enterprises of Ohio, the licensee, filed this renewal application in 1967.  The application was challenged by a petition to deny by Local 880 of the Retail Store Employees Union.  The union was at that time engaged in a strike against the Hills Department Store of Ashtabula.  It charged that WREO had canceled its carriage of  [*1101]  the union's paid announcements about the strike due to economic pressure from the Hills store.  The union also alleged that the station had violated the fairness doctrine by broadcasting the Hills store's regular advertisements while, at the same time, refusing to carry the union's arguments in favor of the strike.

On December 2, 1968, without a hearing, without an inquiry, without so much as a pause, the FCC renewed the license to station WREO.

The union sought judicial review and, on appeal, the court reversed, concluding that the FCC must hold a hearing in order to determine whether or not the licensee had capitulated to economic pressure from one of its major advertisers.  Retail Store Employees' Union, Local 880 v. FCC, 436 F.2d 248 (D.C. Cir. 1970). The court held, further, that the Commission had failed to explain the reasons underlying its denial of the union's fairness doctrine charge.

The case's subsequent history reveals quite well this Commission's contempt for the United States Court of Appeals.

First, on remand the Commission literally ignored the court's lengthy discussion of the fairness doctrine and its application to this case.  The court held, first, that the labor dispute presented a controversial issue of public importance -- at least in the Ashtabula area.  Second, the court noted that the fact that Hills' advertisements had not mentioned either the union or the strike was not determinative to the resolution of the fairness question.  In effect, the court found considerable merit to the union's argument that WREO's carriage of Hills' advertisements constituted an implicit argument in favor of patronizing the store, and that those advertisements therefore constituted advocacy of one side of a controversial issue of public importance.  (The union, of course, was interested in presenting a case for why listeners might not want to patronize the store.)

The FCC responded to this judicial analysis with classic bureaucratic inaction.

First, the Commission deferred decision on the fairness aspects of the union's petition pending the results of our current fairness inquiry.  29 FCC 2d 215 (1971). I believe that we could and should have decided the fairness issue after the court's 1970 remand.  However, since we did defer our ruling, I cannot see how we can now grant this licensee an outright renewal.

The fairness question remains unresolved.  It is, in my judgment, quite conceivable that Radio Enterprise's conduct constituted a violation of our rule.  In any event, with this question unresolved, I find it remarkable that the majority blithely renews that license.  As long as the fairness question is to be deferred, it seems to me the most we could do on the station's behalf (if that be our goal) is to also defer the renewal.

There are, however, substantial reasons why this license renewal application should be denied -- even absent a resolution of the union's fairness complaint.

For reasons which remain unexplained, the union has chosen not to appeal the hearing examiner's initial decision.  The station has taken certain minor exceptions, however, and the record, which is properly before us, simply does not support the examiner's conclusion that a grant of this renewal would serve the public interest.

 [*1102]  On order from the court, the Commission designated this renewal for hearing to determine whether WREO had cancelled the union's paid announcements because of pressure from Hills Department Store.  Presumably, a finding that such pressure had indeed led to cancellation would warrant a grant of the union's petition to deny.

The hearing examiner found that Mr. Richard Moore, President of the advertising agency of which Hills was a client, had made inquiries of several broadcast station which were carrying both Hills' and the union's advertisements.  Mr. Moore, who had never seen a copy of the union's announcement, asked whether WREO had checked that announcement for accuracy.  Despite a decision by WREO's general counsel to the effect that the announcements were not libelous and that there was no basis for a law suit, WREO's President and its general manager decided to cancel those announcements.

When questioned during the hearing, WREO's officers testified that the union's announcements had been cancelled due to listener complaints.  The examiner believed that excuse despite the fact that none of WREO's officers could recall any names of the listeners who allegedly objected to the announcements, despite the fact that none of these alleged complaints had been recorded, despite the fact that the station had never before cancelled announcements due to listener complaints, and despite the fact that it was Mr. Moore's inquiries that appear to have initiated the process which concluded in the station's decision to cancel.  n1

n1 The record also reveals that WHHH, Warren, Ohio, which was not a party to this proceeding, admitted that it had refused to run the union's announcements because the station was unable to get approval from Hills Department Store.  The Hearing Examiner made nothing of this bizarre concession, nor does the majority's opinion allude to it.  Indeed, it appears that this Commission does not even intend to notify WHHH that such conduct should not be repeated in the future.  Such a result is surely odd once one realizes that this Commission has just completed a very long proceeding in order to determine whether WREO engaged in the very conduct in which WHHH admits it engaged.

Faced with what he apparently viewed as a factual quagmire, the hearing examiner illustrated a "curious neutrality in favor of the licensee." See Office of Communications of United Church of Christ v. FCC, 425 F.2d 543 (D.C. Cir. 1969). Indeed, the examiner appears to have placed upon the union the burden of proving -- virtually beyond a reasonable doubt -- that the licensee had buckled under to economic pressure from Hills.  In so doing, the examiner erred.

Under   309 of the Communications Act of 1934, a license renewal application must be designated for hearing when a petition to deny raises substantial or material questions of fact which indicate that a grant of the renewal application would be prima facie inconsistent with the public interest.  Since the court of appeals ordered the FCC to designate the instant renewal application for hearing, it is clear that the court was of the view -- even if the FCC was not -- that the union had presented facts making out a prima facie case against renewal of the license to WREO.  In such circumstances, one would expect that the ultimate burden of proof would be upon the licensee.  See, e.g., Application of Chronicle Broadcasting Co., 16 FCC 2d 882 (1969). Both the hearing examiner and the FCC majority appear to me to have ignored the law's clear mandate.

 [*1103]  Even assuming, arguendo, that the record taken as a whole supported the examiner's conclusion that WREO's cancellation of the union's announcements was not due to pressure from Hills Department Store, the station's stated reason for censoring the union raises serious questions.  The licensee relies upon the rather apocryphal excuse that it cancelled the union's paid announcements -- and thus denied the union access -- because of listener complaints.  Such an excuse -- however dubious -- squarely presents this Commission with the question whether a broadcaster may unilaterally dictate which views the community will be permitted to hear.

A strikingly similar question was presented to this Commission in Business Executives Move for Vietnam Peace, 25 FCC 2d 242 (1970). There, the majority upheld, over my dissent, id. at 249, the right of a broadcaster to refuse paid access to a group seeking to advocate an admittedly controversial position.  That decision was reversed by the United States Court of Appeals, Business Executives Move for Vietnam Peace v. FCC, 450 F.2d 642 (D.C. Cir. 1971). The court reasoned that a broadcaster's blanket policy against selling time to groups desirous of discussing important and controversial issues violated the First Amendment's ban against censorship.  (The case is now pending decision from the Supreme Court.)

The majority acts as if the court of appeals had never spoken on these issues.  I dissent.


APPENDIX:

APPENDIX

Rulings on the Exceptions of Radio Enterprises of Ohio, Inc., to the Initial Decision.

 

Exception No

Ruling

1, 3-5, 7, and 10

Denied as decisionally insignificant.  The Examiner's

 

findings constitute a fair and reasonable recapitulation

 

of the record evidence.  Moreover, the Examiner

 

is not required to make findings and conclusions on

 

every conceivable point on which evidence is offered.

2

Granted.  The Examiner's findings are modified to the

 

extent noted by him in paragraph 19 of the conclusions

 

of the Initial Decision.

6 and 9

Denied.  We find nothing improper in the Examiner's

 

analysis of the record evidence in these conclusions.

 

Indeed, because of the very nature of the charges

 

alleged in this proceeding, the motives and intentions

 

of certain individuals were called into question at

 

the outset.  The Examiner's brief comments in this

 

connection to point out that the record evidence clearly

 

dispels any doubts in this regard.  We believe, were

 

appropriate and necessary to any reasoned determination

 

of the hearing issues.  Moreover, the Examiner

 

made clear that his observations in this respect were

 

not accorded any decisional significance.


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