In Re Application of SUMTER BROADCASTING CO., INC. For a Construction Permit
for a New Class A FM Station at Americus, Ga.
FEDERAL COMMUNICATIONS COMMISSION
39 F.C.C.2d 518
FEBRUARY 1, 1973
[*518] AMERICUS, GA., APPLICATION FOR NEW FM STATION GRANTED
An application by Sumter Broadcasting Company, Inc. for a construction permit for a new Class A FM station to operate on Channel 249 (97.7 MHZ) at Americus, Ga., has been granted by the Commission (BPH-7775). The station will operate with power of 3 kw and antenna height of 300 feet. Sumter Broadcasting is the licensee of station WISK, Americus. One of its principals, L. E. Gadrick (secretary, treasurer, director and 50 percent stockholder) owns WPLK, Rockmart, Ga., and has a 75 percent interest in WIYN, Rome, Ga. The grant of the application was made without prejudice to whatever action the Commission may consider a appropriate in light of its action with respect to outstanding complaints against stations WIYN and WPLK. (Action by the Commission January 23, 1973. Commissioners Burch (Chairman), Robert E. Lee, Reid and Wiley, with Commissioners Johnson and H. Rex Lee dissenting and issuing statements, and Commissioner Hooks dissenting.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
Prior to last December 26, 1972, it had never been the practice of this Commission to grant or assign a license or construction permit to an applicant whose basic qualifications were being questioned in other Commission proceedings. On that date, in an appalling opinion that clearly violated § 309 of the Communications Act of 1934, the majority voted to allow RKO General to acquire another radio station "despite the fact that RKO's qualifications as a broadcast licensee have been called into serious question -- and are currently unresolved -- by this very Commission." See my dissenting opinion in Assignment of WAXY-FM, F.C.C. 2d or Pike & Fisher R.R.2d (December, 1972).
Standing by itself, the WAXY decision might have been dismissed as a temporary aberration in the Commission's judgment. Today's decision, however, evinces an unmistakable intention on the part of the majority to establish a precedent that would simply emasculate the already precarious "public interest" in all proceedings involving the qualifications of a licensee.
[*519] It is one thing, of course, to eschew the phrase "public interest, convenience or necessity" as so ambiguous as to easily encompass a wide range of potential Commission actions. It has, indeed, become fashionable to so interpret Justice Frankfurter's famous elucidation of that standard, which concluded:
The touchstone provided by Congress was "the public interest, convenience or necessity," a criterion which is "as concrete as the complicated factors for judgment in such a field of delegated authority permits."
NBC vs. United States, 319 U.S. 190, at 216 (1943). See, for example, Professor Harry Kalven's ruminations in "Broadcasting, Public Policy and the First Amendment," 10 J. Law & Econ. 15, 25-26, 41-45 (1967). There is no reason to assume, however, that the standard is so nebulous or so wanting of coherent construction as to encourage the apparent abandon we find in these cases.
Today's decision involves the grant of a construction permit for a new FM facility in Americus, Georgia, to the Sumter Broadcasting Company. Sumter is owned in equal share by two men, one of whom, L.E. Gradick, is also a 75% owner of the licensee of station WIYN (AM), Rome, Georgia, and 100% owner of station WPLK (AM), Rockmart, Georgia. WIYN was the subject of a July, 1971 Notice of Apparent Liability for forfeiture of $1000 for violation of the personal attack rule. In addition, the Broadcast Bureau has received no fewer than four separate complaints against WIYN alleging other numerous violations of our personal attack rules and the fairness doctrine including one complaint that named WPLK as well. These charges include the failure to provide a reasonable opportunity to reply to one alleged attack, failure to notify another group that it had been attacked or to provide time, and other allegations said to be of such serious nature that a complete Bureau investigation has been ordered. Violation of the personal attack doctrine is a serious offense which has been found in the past to go to the very heart of a licensee's qualifications to use the public airwaves. Brandywine-Main Line Radio, Inc., for Renewal of Licenses of Stations WXUR and WXUR-FM, Media, Pa., 24 F.C.C.2d 18 (1970), aff'd, Brandywine-Main Line Radio, Inc. v. F.C.C.., F.2d (Sept., 1972).
Under previous Commission policy, the Broadcast Bureau indicates that this case would never have been brought to our attention at this time, but rather held in abeyance until such time as the WIYN and WPLK charges had been acted upon. However, citing the authority of WAXY and the "informal" mandate handed them by the Commission at that time to "bring up" other such cases, Sumter's application has been processed by that Bureau and is now summarily granted by the majority, subject only to the "condition" that it might be reexamined after the final resolution of those outstanding charges.
Of course, this method of regulation is absurd. As any student of administrative law can tell you, it is a rare commission or agency that has enough integrity to reverse more than one or two of its decisions a year. Any process of "re-examination", even based upon the occurrence of some specified condition, implies that a decision has already been made. Aside from the purely legal changes that occur in the rights and obligations of grantee and Commission alike, when a party has been licensed or granted some sort of permission to proceed with a commitment [*520] of its resources, bureaucratic inertia is most often an insurmountable obstacle to reasoned reconsideration. Since the majority refused the suggestion that its grant in this case be made automatically conditional upon the outcome of the personal attack complaints, I would say that Mr. Gradick is safely in possession of a construction permit, with the clear implication that he is qualified in every way to hold one.
There is an important and dangerous line of precedent that has been established by these two cases (and by the large number of other, similar cases the Broadcast Bureau has been informally told to start bringing up). It begins to appear that a licensee whose qualifications are being challenged in one proceeding can procure a de facto adjudication in his favor by the simple expedient of applying for (and being granted) some additional license or permit while the former case is still pending. At the very least, he can create a good deal of momentum in his direction. There can be no question but that a ruling favorable to a licensee on any issue relating to his overall broadcasting qualifications must in some way prejudice the attempt to build a case against him in any other such matter before the Commission.
What the majority has accomplished today is far more than just the promulgation of yet another piece of bad law or bad policy; sorrowfully, it is the utter subversion of much of what is left of the orderly processes under which this Commission is supposed to uphold the public interest. If we can grant new licenses and permits to parties who are charged with serious personal attack and fairness violations (as in this case) or with significant antitrust allegations (the RKO-WAXY case), can we ever again deny an unchallenged application, without seeming arbitrary and capricious in the extreme? Congress itself could not have caused a greater degree of chaos for our procedures of fact finding, adjudication and review if it had repealed the public interest standard itself.
DISSENTING STATEMENT OF COMMISSIONER H. REX LEE
I dissent to the conditional grant of the application of Sumter Broadcasting Co., Inc. for a construction permit for a new Class A FM broadcast station at Americus, Georgia, for essentially the same reasons articulated in my statement concerning the assignment of Station WAXY-FM, Fort Lauderdale, Florida, to RKO General, Inc. n1 One of the principals of the corporate applicant has substantial ownership interests in two Georgia standard broadcast stations, n2 which have either been subject to a forfeiture notice or been the target of pending complaints relating to alleged violations of the Commission's personal attack rule (section 73.123) and Fairness Doctrine. As a result, final action on Sumter's FM application should be deferred by the Commission pending ultimate resolution of outstanding matters that could have a real bearing on the assessment of the applicant's [*521] requisite qualifications. As I noted in my dissenting statement in the RKO General case, whether or not a licensee's conduct is of sufficient gravity to warrant revocation or denial of renewal, it is critical in determining whether a licensee should be entrusted with an additional broadcast facility.
n1 See FCC 72-1201, 26 RR 2d 228, relating to conditional grant of the application for assignment of the license of Station WAXY-FM, Fort Lauderdale, Florida, from Broward County Broadcasting Company to RKO General, Inc.
n2 L.E. Gradick is secretary-treasurer, director and 50 percent stockholder of Sumter Broadcasting Co., Inc. and is 100 percent owner of Station WPLK, Rockmart, Georgia, and 75 percent owner of Station WIYN, Rome, Georgia.