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In Re Application WPRY RADIO BROADCASTERS, INC. For Renewal of License of Radio Station WPRY, Perry, Fla.

 

Docket No. 18885 File No. BR-2927

 

FEDERAL COMMUNICATIONS COMMISSION

 

40 F.C.C.2d 1183

 

RELEASE-NUMBER: FCC 73-547

 

May 30, 1973 Released

 

 Adopted May 23, 1973


JUDGES:

COMMISSIONER JOHNSON FOR THE COMMISSION


OPINION:

 [*1183]  1.  This case arose out of events occurring in 1969 during the period of the Democratic primary campaign for Mayor of Perry, Florida, and the replies of WPRY Radio Broadcasters, Inc., (WPRY) to a series of three letters from the Commission concerning events during that period.  The Commission set the renewal application for hearing in an Order of Designation and Notice of Apparent Liability released June 24, 1970 (FCC 70-650).  The issues designated by the Commission were: (1) whether the licensee was evasive, lacking in candor, or misrepresented facts in its correspondence with the Commission; (2) whether during the period July 2-8, 1969, the applicant violated Section 315 of the Communications Act of 1934, as amended [equal opportunities for legally qualified political candidates]; Section 73.112 [logging of programs] and 73.120(b), (c), or (d) [equal opportunities for legally qualified political candidates, non-discriminatory rates and practices, and maintenance of files with respect to requests for time by political candidates] of the Commission's Rules; or failed in its fairness doctrine obligations; (3) whether during the time Ira W. Brown [a one-third owner of WPRY and its General Manager] was a legally qualified candidate for Mayor of Perry, WPRY used its facilities for the private interest of one of its principals or to achieve a personal advantage for him rather than in the public interest; and ultimately (4) and (5) whether WPRY was qualified to remain a licensee and should have its license renewed.  In the event the hearing record did not sustain a denial of renewal, a determination was to be made as to whether an order of forfeiture in the amount of $10,000 or some lesser sum should be issued.

2.  Except for the subjects of the fairness doctrine and the maintenance of political files, which the Examiner resolved in favor of the  [*1184]  applicant (Initial Decision (I.D.) Conclusions paras. 12 and 13) without exception by the Broadcast Bureau, the Examiner's conclusions on the first three issues were adverse to the applicant.  However, having found reasons to excuse the misconduct, the Examiner decided favorably to the applicant on issues 4 and 5.  Nevertheless, he concluded that a sanction was appropriate and therefore granted a short-term renewal "to insure proper performance of responsibilities in the future and impress upon the licensee the seriousness of its violations" (I.D. Conclusions para. 22) and imposed a $5,000 forfeiture because "the licensee did willfully violate" Section 315 of the Act and Sections 73.112 and 73.120(b) and (c) of the Rules (I.D. Conclusions para. 23).  After examination of the record and hearing oral argument, the Commission has decided to reverse the Examiner, to deny the renewal and to cancel the $5,000 forfeiture.

3.  The Commission believes that the Examiner's basic findings of fact are essentially correct, and they are adopted except as modified in this opinion or in the rulings on exceptions.  n1 In order to provide a frame of reference for our discussion, we will outline the events which are the basis for this decision. 

n1 In those instances where there were conflicts in testimony, the Commission accepts the Examiner's determination as to which testimony warrants credence because the Examiner observed the witnesses and was in a position to judge their credibility or accuracy of memory.  Factors other than Brown's testimony have led the Commission to disagree with the Examiner's conclusion that Brown had no motive to conceal the running of his rebuttal ads on July 7.  See para. 50, infra.

4.  Ira W. Brown, Abraham Lincoln Poppell, Edwin Jackson n2 and two other persons were qualified candidates n3 for nomination in the Democratic primary for Mayor of Perry, Florida, which was to take place on Tuesday, July 8, 1969.  Success in the Democratic primary was tantamount to victory in the general election because there are few Republican voters in Perry. 

n2 Jackson figures in the findings only with respect to the question of the rates charged and payments made for political announcements.  See paras. 21 and 34, infra.

n3 Each filed on or before June 5, 1969.

5.  Brown is a one-third owner of WPRY and from January 1963 through late July 1970 was General Manager of the station.  n4 He was the only salesman during June and July 1969 and handled all political accounts.  During June and July his voice was heard over WPRY in sign-off, sign-on and commercial announcements as well as on other occasions.  Norman Barry Gross and Walter Allen Cox were co-managers of Poppell's campaign.  Gross worked at WGKR, the other radio station in Perry, from June 1 to July 3, 1969.  On June 25 he agreed to work for Poppell without pay. 

n4 Brown testified that while nothing is definite, he is considering returning to his role as General Manager, with the concurrence of the other stockholders, after the instant proceeding is "cleared up."

THE EVENTS DURING THE CAMPAIGN

6.  At a chance meeting between Brown and Poppell on the morning of June 30, 1969, Brown sought to sell Poppell and Poppell sought to buy time on WPRY for his campaign for Mayor.  The meeting resulted in an appointment being made for 1:00 p.m. the same day at Station WPRY.  Brown was not there at 1:00 p.m. and had not appeared by 1:55 when Poppell left.  Poppell made no attempt to purchase  [*1185]  time from WPRY during this visit because he had been told to see Brown for this purpose.

7.  Poppell later told Gross about Brown's failure to keep the 1:00 p.m. appointment on June 30.  Gross advised Poppell that since Brown's voice on WPRY was familiar to the community, Poppell might possibly get "free, equal, comparable time" over WPRY.  Poppell authorized Gross to get him such time if he could.

8.  Gross and Cox with Poppell's authority sent a telegram to the Federal Communications Commission on July 3, 1969.  The telegram was a "formal complaint" from Poppell that Brown had violated Section 315 by not keeping his appointment to sell Poppell time while at the same time Brown was conducting a "heavy commercial campaign" in his own behalf over WPRY and was also appearing on the air in a non-political capacity.  The telegram asserted that Brown's voice was well known in the community and the primary was only 5 days away.  The Commission's response, a copy of which was sent to and received by Brown on July 3 at WPRY, recited the allegations in the Poppell telegram and ended by stating "Commission advised by station that it will afford you equal opportunities upon request by you." An FCC representative had been assured by Brown over the telephone that he would afford Poppell equal time.

9.  Having received the Commission's assurance of that WPRY would afford Poppell equal time, Gross and Cox went to WPRY on July 4 to seek equal time on Poppell's behalf and at his specific request.  They were prepared to request 51 minutes of free time for Poppell which was the total number of minutes Brown had been heard on WPRY on July 3, excluding political announcements.  n5

n5 After qualifying as a candidate, Brown was heard from June 3 through July 8 for an average of 56.5 minutes a day in regular commercial announcements.  (See Broadcast Burean Ex. 11)

10.  When they arrived at WPRY on July 4, Brown was not in; and when they inquired where he was, they were told that he was unavailable.  If Poppell had tried personally, he would not have been able to get in touch with Brown during working hours on the 4th because no one at the station knew where he was.  Gross and Cox said that they had come to get some time for Poppell.  The program director offered to sell them time.  Gross and Cox told him they believed that Poppell was entitled to free time and they asked for 51 minutes.  Cox had brought with him and showed the program director that part of the Federal Register dated May 4, 1966 entitled "Use of Broadcast Facilities by Candidates for Public Office" with special reference to what constituted a "use" by a political candidate.  Cox and Gross pointed to Brown's commercial announcements over the station as the "uses" to which they referred.  The program director's initial reaction was that they were joking.  When he realized they were serious, he called in WPRY's engineer and asked his opinion.  The latter said he did not know what to do about the request, and he accused Gross and Cox of just trying to stir up trouble.  Gross and Cox replied they were only trying to get what Poppell was entitled to have.  The meeting ended with the program director telling Cox and Gross that he had no authority to give Poppell free time (which Brown later confirmed) and they would have to see Brown.  There is no evidence that any other [*1186]  reason was given Gross and Cox for not complying with the request for free time.

11.  At the July 4 visit to WPRY Gorss and Cox had with them announcements prepared for use on Poppell's behalf and scripts of the tapes.  Gross thought Poppell's voice appeared on one of the tapes; but Cox testified that Poppell's voice was not on any of the tapes brought to WPRY on July 4.  The program director did not listen to the tape recordings and Gross was not sure whether the program director read the scripts for them.

12.  Upon returning either late in the afternoon or late in the evening on July 4 from his customary July 4 visit to his brother's farm, Brown received a call from the program director relating that Cox and Gross had come into WPRY that day and asked for free time for Poppell.  The program director said he had told them he was not authorized to give it to them.  After being informed of the incident, Brown made no attempt to reach Poppell on the 4th to offer him free time or for any other purpose.

13.  After his visit to WPRY on July 4, Gross went to WGKR, where he had been employed between June 1 and July 3, 1969.  A disc jockey from WPRY telephoned WGKR and in a screaming, angry manner told Gross that he had better not return to WPRY and act as he did.  The disc jockey did not say he would strike Gross if he returned to WPRY but said that if Gross knew what was good for him he'd better keep away from WPRY.  Gross construed the remarks as a threat of bodily harm.  Brown did not learn about the telephone threat till a later date in a letter from the Commission.

14.  After the events of July 4, Poppell sent the Commission a second telegram early in the morning on July 5 which recited the failure of Gross and Cox to reach Brown and the lack of authorization of anyone at WPRY to afford equal time to Poppell's representatives and mentioned a threat of "bodily harm" made to one of those representatives.

15.  Early in the afternoon on July 5, Brown sent Poppell a telegram informing him that he should appear in person at the studios of WPRY at 6:00 p.m. that day where he would be afforded his "equal opportunity under Section 315 FCC." n6 On the evening of July 5, Brown met with Poppell at WPRY and offered to sell him time.  Poppell did not accept the offer.  At Poppell's suggestion they arranged to meet the following morning -- Sunday, July 6, 1969.  There is no evidence that at the July 5 meeting Brown gave the format of the July 4 tapes as the reason for not offering free time. 

n6 Brown also sent to the Commission a telegram containing the substance of the telegram sent to Poppell (Broadcast Bureau Ex. 5).  This action of Brown suggests to us that the Broadcast Bureau had by that time again communicated with Brown and that Brown was acting in response to that Commission inquiry.  In a finding based on Broadcast Bureau Ex. 6, a telegram from the Broadcast Bureau to Brown and Poppell, the Examiner determined that Brown's telegraphic offer to Poppell was sent in response to another Commission inquiry (I.D. Findings of Fact para. 19).  No exception was taken to that finding.  The Broadcast Bureau at oral argument, however, stated that the record is not clear that the Commission had communicated with Brown on July 5 before he sent his telegram to Poppell.

16.  On Sunday morning, Brown met with Poppell, Gross and Cox at WPRY at 10:00 a.m. Poppell, Gross and Cox brought with them two tapes with three tape-recorded spot announcements of 60 seconds each.  Each announcement had an introductory statement by Poppell:  [*1187]  "I am Abe Poppell, candidate for Mayor for the City of Perry." n7 The remainder of each announcement was in the voice of Gross or Cox.  Brown listened to the tapes and made a copy of them.  Each spot charged Brown with failing to pay a local tax.  Brown, speaking alone to Poppell, told him the taxes had been paid but added that if Poppell insisted, the tapes would be run.  Poppell offered to pay for running the spots and Brown refused saying Poppell was entitled to free time.  Brown asked Poppell to make a new tape, but Poppell refused.  There is no evidence that Brown expressed any objection to the format of the tapes on Sunday Morning. 

n7 This introductory statement in Poppell's voice was apparently the result of the Broadcast Bureau's telegram to Brown and Poppell (Broadcast Bureau Ex. 6, see note 6, supra) which advised Poppell that "candidate must personally appear and use all or part of the time to which he is entitled." This advice was given Poppell apparently because the Commission inquired of WPRY about the July 4 tapes and was advised that Poppell's voice was not on them.

17.  When the Sunday morning meeting ended, Brown had agreed to run the spots the next day, Monday, July 7, 1969, the day before election.  Poppell asked that "the whole tape," meaning each spot, be run each hour during WPRY's entire broadcast day.  Poppell admitted, however, that Brown may have misunderstood his request as to how many of the three spots would be run each hour.  Brown thought Poppell wanted his spots to run one per hour for twelve hours.  Later that same day Brown said he would not run the spots.  Poppell testified that Brown said he would not run the spots because of their content and because they were not entirely in Poppell's voice.  Brown denied having told Poppell the tapes would not be run.  Cox testified Brown told him Sunday evening that he would not run the spots because of their content.  Brown testified he did not remember making the call to Cox.  The Examiner accepted Poppell's and Cox's testimony as to Brown's refusal to run the ads.  (I.D. Findings of Fact par. 23 n. 8, Conclusions par. 1)

18.  On July 7, Cox went to WPRY at about 8:45 a.m. to pick up the tapes, which Brown had told him the evening before would not be run.  Brown asked Cox to sign a statement on behalf of Poppell and his two associates before taking the tapes.  The statement was to the effect that Cox, Gross, and Poppell would drop all the charges they had made against Brown and WPRY.  Cox refused to sign the statement.  He then took the original tapes and left.

19.  Twelve Poppell spots were broadcast over WPRY on July 7 (apparently from Brown's copy of the tapes).  Each spot charged Brown had failed to pay a local tax.  Each spot was followed immediately or within a few minutes by an announcement by Brown which said that the tax referred to in the Poppell spot was charged to a partner of Brown and had already been paid.

20.  Only one rebuttal to the 12 Poppell spots was logged.  Brown said he failed to log the other 11 rebuttals because he was preoccupied with other matters and forgot to make up a start order which was the key for getting the announcements in the log.  Brown explained that after making the tape of his rebuttal to Poppell's charge, he ordered the station's disc jockeys to run the tape after each Poppell spot.  Cox called Brown after the first broadcast of the rebuttal and complained of its adjacency to Poppell's spot.  Brown called the FCC and understood  [*1188]  that the rebuttal could be broadcast at any period after a Poppell spot.

21.  In addition to WPRY's involvement in Poppell's quest for time under the equal opportunities provision of Section 315, WPRY also sold political time to Jackson, another candidate for the Democratic nomination for Mayor of Perry.  Jackson was charged more than Brown charged himself for the ads he ran for himself between June 25 and July 8.  Based on WPRY's standard rates, Brown should have been billed $147.10.  n8 In fact Brown's only payment to WPRY was by a check for $120.00 signed by him and paid to the order of WPRY Radio, Incorporated, but drawn on the account of WPRY Radio, Inc.  No change in the balance of WPRY Radio, Inc., bank account resulted.  WPRY owed Brown over $200 in back salary at the time and Brown assumed his debt to WPRY could be deducted from the amount owed him; but his obligation to WPRY still had not been deducted at the time of the hearing. 

n8 The I.D. used the incorrect figure of $157.10.

RESPONSES TO THE COMMISSION'S INQUIRIES

22.  On July 16, 1969, after the primary campaign was over, Gross wrote a letter of complaint to the Commission.  In recounting events during the campaign, Gross alleged that after being denied equal time, he received a telephone call from a WPRY announcer threatening him with bodily harm.  The Commission sent the letter to WPRY on August 7, 1969 for comment.  In his response of August 19, the only comment Brown made concerning the allegation of a threat of bodily harm was that he didn't understand such a charge and that in his view neither he nor anyone on his staff would exercise bodily force on anyone.  On the face of the response it was not apparent that Brown had made any investigation or inquiry of employees about the reported threat.

23.  On September 24, 1969, the Commission wrote and specifically asked for a statement as to whether any employee did or did not threaten Gross with bodily harm and requested signed statements by each person employed at WPRY on the date of the alleged incident.  Brown responded on October 9 that he had talked to his "d.j.'s" and that no bodily harm was threatened.  Immediately following was a denial of a threat on July 4 which was signed by the program director, Brown, and an engineer.  None of the persons submitting the joint statement was a disc jockey.  In fact, Brown had not talked to any disc jockeys regarding the incident.  Brown had the station logs and undoubtedly other station records available to him with respect to the identity of his employees on July 4, but he failed to make a complete response by not submitting their statements or explaining their unavailability.

24.  The Commission again wrote Brown on December 24, 1969, pointing out the previous request for statements by each person employed by the station on the date of the incident and the fact that the logs of July 5, 6, and 7 showed the names of three persons whose statements were not submitted.  The Commission asked for the signed statements of the latter three persons and the reason for  [*1189]  failing to include their statements previously.  On January 12, 1970, Brown responded that he had not enclosed the statements of the three named persons because he was not aware they were working at WPRY on July 4, 1969.  He enclosed a signed statement of one of the three former employees.  The statement denied the employee threatened bodily harm to Gross.  The statement had been prepared by Brown and sent to the employee to sign.  Brown said in his letter that he would try to locate the other two employees and ask them the same questions he'd asked his other employees concerning threatening Gross by phone or in person.  Brown wrote the other two former employees and enclosed for the signature of each a statement of denial.  Each signed the statement prepared by Brown; and Brown sent the signed statements to the Commission.

25.  In addition to alleging the threat of bodily harm to himself, Gross in his letter of complaint also had related the June 30 episode and the events connected with the airing of Poppell's ads over WPRY.  In his first letter Brown specifically denied he had an appointment with Poppell, specifically denied that anyone had been refused time on the station, generally denied all Gross's allegations, and stated that he had asked only for a receipt for the tapes returned to Cox on July 7.  The rest of Brown's letter was a counterattack on Gross.  Brown stated that Gross's accusation should have been made to him and not to the FCC.  Finally, Brown asked that "the case be dropped as the election is over and Mr. Poppell has made no further complaint only the person supporting Mr. Poppell." n9

n9 The Examiner in his Findings did not detail Brown's response on these matters (I.D. Findings of Fact para. 45.) The substance of the replies is, however, implicit in paragraph of the Conclusions of the I.D. and supported by Broadcast Bureau Ex. 9.

26.  Therefore, in its letter of September 24, in addition to making further inquiry about the alleged threat, the Commission also asked Brown about Gross's allegations with respect to Poppell's attempts to secure time and asked specific questions concerning the number, duration, and time of all political announcements aired over WPRY on Brown's behalf and concerning the broadcast of rebuttal announcements for Brown.  Brown's reply on the number and duration of announcements on behalf of his candidacy differed from the facts developed in the hearing record.  He reported 126 spots; the record showed 136 spots.  The total number of seconds of political ads he reported in his letter was 2500; the record showed political spots for Brown totaling 4330 seconds.  Brown's reply letter referred to the first Poppell ad, and said that this ad was followed by a one-minute musical interlude; that the Brown spot was the only spot run that close; that Brown's voice was nowhere near the Poppell tape; that Poppell received all the ads he asked for; that they were not tagged with political rebuttal; that his own spots were logged and paid for.  The record disclosed that there were 12 rebuttal spots; three were run back to back with the Poppell spots; four were run with a one-minute lapse; one was run with a two-minute lapse; three were run with a three-minute lapse; the ads were not tagged as political ads; they were, with one exception, not logged and they were not paid for.

27.  Not satisfied with Brown's second letter response, the Commission in its third letter asked about a 35-second tax receipt announcement,  [*1190]  whether Brown had paid for the 35-second spots, whether they were in his voice and how they were logged, and also asked him to explain the discrepancy between the amounts charged for his spots and the amounts charged for other political spots.  Brown in his response to the Commission's third letter said he knew of no 35-second announcement, n10 stated that all his political ads were in his voice and "were tagged as political announcement," and explained that $100 was used for 100 20-second spots and the remaining $20 of the $120 check was used for the balance of his commercials. 

n10 In testimony Brown said the tax receipt announcement was a 30-second commercial.  But in his earlier letter of October 9, 1969, he had listed only 20, 40, and 60-second ads.  At the end of the October 9 letter he had referred to a "30 to 45 second [tax receipt] tape" which was run "as logged" on July 7.

CONCLUSIONS

28.  From these facts the Examiner concluded and we agree that WPRY was guilty of numerous instances of misrepresentation, evasion, and lack of candor (I.D. Conclusions paras. 1-4); that WPRY violated Commission Rules by the failure to log 11 out of 12 rebuttal announcements, by giving Brown lower rates than those charged Jackson, and by failing to require any payment of Brown even at the lower rate (I.D. Conclusions paras. 5 and 9-11); n11 and that the facilities of WPRY were used for the benefit of Brown rather than in the public interest (I.D. Conclusions para. 14).  n12 We modify the Examiner's analysis of the facts as they relate to the denial of equal opportunity to Poppell in violation of Section 315 of the Act and Rule 73.120(b), n13 although we conclude that there was a violation of that section of the Act and the Rules.  n14 We reject as unsound the grounds on which the Examiner mitigated the degree of WPRY's wrongdoing in all these matters in order to conclude that the applicant was qualified to remain a licensee. 

n11 The Examiner does not seem to have concluded specifically that the violations of the Commission's Rules prohibiting discrimination in rates and charges constitute denial of "equal opportunities" and therefore violations of Section 315 of the Act.  The Commission specifically draws this conclusion.  See para. 34, infra.

n12 Unlike the Examiner, the Commission reaches no conclusions with respect to the question of censorship or attempted censorship because the record supports denial of renewal for other reasons.

n13 The Commission is uncertain how many violations of Section 315 the Examiner found (see I.D. Conclusions paras. 7, 15, 21 and 23).

n14 See n. 12, supra.

THE APPLICANT'S RESPONSES TO THE COMMISSION

29.  WPRY's letter responses of August 19 and October 9, 1969 and January 12, 1970 were in parts evasive, lacking in candor, or misrepresented facts.  WPRY's response of August 19 to the Commission's first letter was untrue in denying that Brown had made an appointment with Poppell to arrange for a sale of political time.  It was untrue in stating that Brown had not refused Poppell political time.  The August 19 letter was lacking in candor in failing to reveal that Brown had asked Poppell's representative to sign a statement that Poppell and his associates would drop all charges lodged with the Commission.  Instead Brown stated only that he had requested a receipt for the return of the tapes to Poppell.  Brown's response to the inquiry on the complaint of the threat of bodily harm evidenced evasiveness.  The  [*1191]  statement that neither Brown nor anyone on his staff would exercise bodily force against anyone was made without asking some of his employees if any such threat had been made.  Brown was evasive when he completely failed to respond to the charge that he had run several political announcements in his own voice on July 7, without disclaimer and in rebuttal to Poppell's announcements.  n15

n15 WPRY does not except to the conclusions of evasiveness with respect to the alleged threat and Brown's rebuttal announcements.

30.  WPRY excepts to the conclusions of untruth as to Brown's denial of the appointment with Poppell, of untruth as to the refusal of time to Poppell, and of lack of candor with respect to the receipt for the tapes.  These exceptions are denied.  As to Brown's denial of an appointment, he himself testified that at the chance meeting on June 30 when the purchase of time was brought up, he said he would be at the station about one o'clock that day and that Poppell replied he would be there.  (Tr. 134) In addition, in response to questioning by the Examiner, Brown testified that he expected Poppell to come to the station on June 30; that Poppell could have waited "20 to 30 minutes or even an hour range"; and that he expected Poppell "anywhere from between 1:00 o'clock and 2:00 o'clock." (Tr. 142) The record also supports the conclusion that Brown was untruthful in stating that he had not refused Poppell time.  Brown was responding to an allegation by Gross that on Sunday afternoon, July 6, Brown had told Poppell that the tapes that had been submitted would not be run.  The Examiner accepted Poppell's testimony that Brown at this time refused to run Poppell's political spots because of their content and because they were not entirely in Poppell's voice.  The record also supports the conclusion that Brown lacked candor in failing to reveal that he had requested Cox to sign a statement that all charges before the FCC would be dropped.  Cox's testimony was specific that Brown "requested that I sign a statement on behalf of myself, Mr. Poppell and Mr. Gross stating that we would drop all charges" and that when Brown made the request he said "Get me off the hook." (Tr. 300-301) The Examiner stated that his "observations of Cox's conduct and demeanor on the stand resulted in the firm impression that he was a credible witness." (I.D. Findings of Fact par. 23 n. 8).

31.  WPRY's response of October 9 to the Commission's second letter also lacked candor and contained misrepresentations.  The letter misrepresented the number and duration of political spots run for Brown on WPRY and the logs enclosed with the letter showed only 1 out of 12 Brown spots broadcast on July 7.  The letter was lacking in candor when Brown stated Poppell had received all the ads he asked for when the evidence shows Poppell sought 51 minutes on July 4 and got 12 minutes on July 7.  The October 9 letter denied any of Brown's spots were run near Poppell's when a stipulation shows that they ran next to or close to each of Poppell's political announcements.  The letter falsely claimed there was a one-minute musical interlude between Poppell's first 60-second spot and Brown's only logged rebuttal.  The October 9 letter denied that Poppell's spots were tagged with political rebuttal whereas the record establishes that Brown's announcement was designed as rebuttal and was broadcast close to Poppell's spots.   [*1192]  The letter falsely stated that Brown's rebuttal was logged when in fact 11 out of 12 were not logged.  The letter falsely stated that Brown had discussed the threat against Gross with WPRY's disc jockeys when in fact he had not done so.  The letter was misleading in that only the signed statement of Brown, the program director, and the chief engineer denying a threat to Gross was included when there were three other employees on July 4 and the licensee had been asked to submit a statement from each employee of the station on the date of the alleged incident.  n16 WPRY has excepted only to the conclusion of Brown's lack of candor in saying that Poppell received all the ads he wanted.  WPRY argues that this is contrary to the conclusion that Brown misunderstood the number of times the ads were to be run on July 7.  The conclusion of lack of candor, however, clearly goes to Brown's failure to admit that Poppell had sought "more time and at an earlier date," namely the 51 minutes sought on July 4. 

n16 WPRY does not except to the conclusion of misrepresentation of the number and duration of spots, the false claim of the one-minute musical interlude, the false statement that he had talked to his disc jockeys, the false claim that his tax rebuttal announcements were logged or the misleading nature of Brown's inclusion of a statement from three persons working at the station but not including the statements of three others.

32.  WPRY's response of January 12, 1970 to the Commission's third letter contained evasive and false statements.  Asked why he billed himself $120.00 for political spots apparently costing more, Brown failed to explain that he pro-rated the charges to himself for certain announcements even though there is no evidence he had ever pro-rated them for a customer of WPRY.  Brown falsely stated again that he had not broadcast any spots in rebuttal to Poppell's announcements.  n17 Brown's statement that he did not know three named individuals were employed at WPRY on July 4, 1969 is plausible because Brown may not have recalled the fact; but because he had access to employee records and logs, such lack of awareness displayed an attitude in responding to Commission inquiries that is tantamount to lack of candor.  The January 12 letter also falsely stated that Brown paid $120 for spots when he fact he had drawn a check on the WPRY account for this purpose.  The letter lacked candor in asserting that Brown would ask former employees "the same questions asked the other employees concerning threatening" Gross when in fact no questions were asked WPRY employees and Brown sent only statements of denial for them to sign.  n18 The only exception to these conclusions with respect to the third letter from WPRY, dated January 12, 1970, is that Brown's statement that he had paid for his ads was false.  This exception must be denied.  As a businessman, Brown knew that the $120.00 check made out to WPRY on June 25, 1969, and Drawn on the WPRY account effected no change in the WPRY balance.  Brown's asserted anticipation of setting off his debt to WPRY by deducting the amount due from his uncancelled salary checks had still not been realized on January 12, 1970. 

n17 Brown's January 12 reply on this point is unclear.  However, WPRY has not excepted to the interpretation and conclusion that Brown again falsely stated he had not broadcast any rebuttals to Poppell's ads.

n18 WPRY does not except to the conclusion that the lack of awareness of who his employees were on July 4 shows an attitude that is tantamount to lack of candor, nor does WPRY except to the conclusion that Brown's statement that he would ask the two remaining disc jockeys the same questions as those asked other employees was lacking in candor.  (The Examiner erroneously named three rather than two former disc jockeys to whom Brown referred.)

 

 [*1193]  THE VIOLATIONS OF SECTION 315 OF THE COMMUNICATIONS ACT AND SECTIONS 73.112 AND 73.120 (b) AND (c) OF THE COMMISSION'S RULES

33.  WPRY violated Section 73.112(a)(4)(ii) of the Rules, which provides for logging the name and affiliation of the candidate for each political announcement, by failing to log 11 out of 12 rebuttal announcements for Brown on July 7.

34.  WPRY was also guilty of two separate violations of Section 73.120(c) and of Section 315(a) when it (1) charged Brown a lower rate for political ads than it charged candidate Jackson and then (2) did not require Brown to pay for his ads.  WPRY's argument that there was no discrimination against Jackson until Poppell was given free time and then Jackson's money was refunded, n19 is patently unreasonable.  The first discriminatory action occurred when Brown charged himself a lower rate than he charged Jackson.  If Jackson asked merely to buy time, then WPRY was obligated only to sell time, and WPRY's affording Poppell free time at his request is in these circumstances an unrelated transaction.  The second violation occurred when WPRY did not require payment from Brown even at the lower rate charged him.  Brown's check written to WPRY on a WPRY account effected no change in the WPRY bank balance.  These actions of WPRY were distinct and independent of each other. 

n19 Jackson's money for the 1969 ads was refunded in March 1971 nine days prior to commencement of the hearing.

35.  WPRY also violated Section 315 of the Communications Act and Section 73.120(b) of the Commission's rules, which incorporates the equal opportunities provision of Section 315, by denying Poppell the 51 minutes he requested on July 4 through his representatives, Gross and Cox.  Brown had regularly made commercial announcements during the course of his candidacy for an average of 56.5 minutes a day and his voice was well known in the community.  Brown's voice in these commercial non-political announcements broadcast over WPRY constituted a "use" of WPRY by Brown under Sec. 315 of the Act.  n20 Therefore Poppell and all other candidates campaigning in the Democratic primary for Mayor of Perry were entitled to receive comparable time at no cost upon their request.  n21

n20 Letters to Station KYGN, 40 FCC 293 (1958); Georgia Association of Broadcasters; 40 FCC 343 (1962); Elliot C. Lovett in re Station KTTV-TV, 40 FCC 282 (1957); Letter to Kenneth Spengler in re Station WCVS, 40 FCC 279 (1956); In re Station WBAX, 17 FCC 2d 316 (April 16, 1969); see Lincoln Broadcasting Company (WMAY), 4 RR 2d 849 (1965).

n21 The candidate requesting equal time would have to observe the requirements of Section 73.120(e) of the Commission's rule (the seven-day rule) with respect to the time within which the rights must be asserted.

36.  On July 3, 1969, Brown was heard in commercial announcements for 50-51 minutes.  On the basis of these announcements, Gross and Cox at Poppelle's request went to WPRY on July 4 to get him comparable free time.  They had with them tapes which did not include Poppell's voice.  At WPRY Gross and Cox were refused free time because no one there had authority to give free time and Brown, who had the authority, was not there and could not be reached although the day before Brown had assured the Commission that he would afford Poppell time.

37.  WPRY argues that the request on July 4 was not valid and therefore there was no violation of Section 315 at that time.  WPRY  [*1194]  asserts that the request was made by Poppell's representatives rather than Poppell and the tapes they had with them did not include Poppell's voice.  The Commission cannot sanction WPRY's resort to these arguments in these circumstances.  Neither of these reasons was raised by anyone at WPRY at the time of the request.  Had these reasons been given, Poppell could have confirmed that Gross and Cox were making the request with his authority; and there would have been an opportunity at that time to remedy any deficiency in the format of the tapes.  In addition, however, it is plain that had Poppell appeared personally at WPRY with tapes entirely in his own voice, no one at the station could have given him free time.  n22 Despite Brown's assurance to the Commission on July 3, he left no one with authority in his absence to act on a Section 315 request even though the election was on July 8.  Brown's absence on July 4 effectively precluded any possibility of a grant of Poppell's request and made a sham of Brown's assurance to the Commission that WPRY would afford equal opportunities upon Popppell's request. 

n22 It is unnecessary, therefore, for the Commission to pass on the format of the July 4 tapes, and the Commission does not do so.

38.  A licensee cannot evade the affirmative obligation imposed by Section 315 by having no one available to act in the licensee's behalf.  The statutory obligation to afford equal opportunity for political candidates is a singular requirement with respect to the use of broadcast facilities.  This in itself denotes the seriousness of the duty to provide equal opportunities.  The obligation is not to be taken casually.  Brown had assured the Commission he would afford equal time and then made no provision for compliance on July 4.  As the Examiner pointed out, there was not even a direct refusal of time but only the truthful statement of an employee that he was not empowered to act.  The effect, however, was the same.

39.  Questions as to the validity of a request for equal opportunities must be raised by the licensee at the time the licensee responds to the request.  Refusals to comply must be accompanied by reasons so that there will be an opportunity to correct any deficiency in the request, if possible.  Because the statute puts an affirmative obligation on the licensee, WPRY thus cannot by belatedly challenging the validity of the request escape the consequences of its delinquency in having no one authorized to act on the request for equivalent broadcast time.

40.  Nor did Brown promptly remedy the failure of July 4 upon learning of the request for time.  Brown returned to Perry late in the afternoon or late in the evening of July 4 and was informed by the program director of the request for time.  Brown did not then try to communicate with Poppell.  Nor did he try to reach Poppell promptly on July 5.  He sent Poppell a telegram in the early afternoon of July 5 when the day was more than half over.  In that telegram Brown informed Poppell that he should appear at 6:00 p.m. in person and he would be afforded "equal opportunity." Sometime on July 5 the Commission had made another inquiry to the station, in response to a second complaint telegram from Poppell received by the Commission on the morning of July 5 and had been advised that the offer of equal opportunity was outstanding.  n23 But when Poppell went to the station,  [*1195]  Brown Offered to sell time, not to give free time.  Brown testified that he believed the first time he offered Poppell free time was Sunday, July 6 (Tr. 149).  Questioned about the substance of the July 5 meeting, Brown testified plainly that he talked of the purchase or sale of time.  (Tr. 338-339).  Later in response to questions by the Examiner, Brown claimed that he offered Poppell free time at this meeting (Tr. 375).  Still later Brown said he offered Poppell time "free or otherwise" (Tr. 380).  The Examiner concluded that Brown's testimony at Tr. 338-339 "unequivocally" indicated he did not offer free time on July 5 (I.D. Findings of Fact para. 20 n. 7).  Again, the question of the tapes' not including Poppell's voice was apparently not raised as a reason for not offering free time.  Thus, considering the compressed period in which any compliance was possible, Brown's offer on July 5 was not only dilatory but continued to flout the obligation under Section 315. 

n23 See n. 6, supra.

41.  With only four days remaining for the campaign Brown succeeded in letting the clock run for two of those days (July 4 and 5) without giving Poppell equal time.  At the meeting on the morning of July 6 Brown offered Poppell free time with the ads to be run on July 7.  At this meeting Brown listened to the taped ads, which now included Poppell's voice n24 in an introductory sentence identifying himself as a candidate with the rest of each ad in the voice of Cox or Gross.  The format of the ads was not questioned at that time.  Later on the 6th, however, Brown refused to rune the ads because, Poppell testified, they were not entirely in Poppell's voice and they contained the tax delinquency charge against Brown.  The Examiner accepted Poppell's testimony as to Brown's refusal to run the ads.  But Brown denied that he told Poppell the tapes would not be run.  If Brown did give the format as a reason for not running the tapes, n25 he apparently did not believe it to be a sound reason for refusal or he would not have denied that he told Poppell and ads would not be run.  Moreover, in his reply letters to the Commission with respect to these events, Brown never contended that because he had expressed to Poppell a reasonable doubt about the format of the tapes, WPRY did not have to accede to the request for time. 

n24 See n. 7, supra.

n25 The Examiner made no specific finding that Brown gave Poppell this reason for not running the ads.

42.  On July 7 the day before election, Brown ran Poppell's ads, but only one an hour for 12 hours instead of three an hour for the broadcast day as Poppell intended.  n26 Poppell admits that Brown could have misunderstood what Poppell meant at the morning meeting on July 6 as to the number of times the ads were to be aired.  Brown's misunderstanding of that conversation does not, however, absolve him of the failure to give comparable time.  The July 4 request was clear and was based on Brown's regular commercial announcements.  Brown's telegraphic offer to Poppell was for "equal opportunity." Brown also knew that Poppell had complained to the Commission because he had been denied "equal comparable" time.  In addition, the regular commercial announcements in Brown's voice continued during the days that Poppell was trying to get free time -- 47 minutes on July 4, 36  [*1196]  minutes on July 5, 30 minutes on July 6, and 42 minutes on July 7.  n27 Under these circumstances the airing of Poppell's ads for only 12 minutes, less than one-fourth the time requested on July 4, does not constitute compliance with Section 315 and Rule 73.120(b).  Moreover, Brown's own temporizing left him in the position where there was in effect no chance for him to comply by correcting the misunderstanding. 

n26 WPRY broadcast for a minimum of 17 hours a day (Renewal Application).  We note that three one-minute ads an hour for 17 hours would have been 51 minutes.

n27 Broadcast Bureau Ex. 11.

43.  WPRY's failure to notify other candidates of Brown's use of the station did not constitute a violation of Section 315.  Contrary to the Examiner's conclusion, Section 315 imposes no obligation on a licensee to notify other candidates of the "use" of the station by a candidate.  We think it pertinent, however, that the Commission's rules impose an obligation of notification when a licensee airs political editorials supporting or attacking a candidate.  47 CFR   73.123.  If editorial support of a candidate requires notification, then, a fortiori, use of a station by an owner to promote his own candidacy requires notification because of the "special obligation" which the Commission imposes on an owner-candidate when dealing with other candidates.  n28 See Emerson Stone, Jr., 40 FCC 385 (1964). Brown's use of WPRY without notifying other candidates was taking advantage of his ownership of the station to promote his own candidacy. 

n28 No issue of violation of Rule 73.123 was included in the designation order; the Commission, therefore, refrains from deciding whether Rule 73.123 was violated.

44.  The airing of Brown's rebuttals after Poppell's ads did not constitute a violation of Section 315 and Rule 73.120(b).  The rebuttals did, however, reflect on the licensee's fairness in dealing with Poppell and, like the matter of failure to notify other candidates of Brown's use of the facilities, demonstrate the licensee's favoring of Brown rather than serving the public interest.

USE OF WPRY'S FACILITIES TO ADVANCE BROWN'S CAMPAIGN

45.  The Commission also concludes that while Brown was a legally qualified candidate for the Democratic nomination for Mayor of Perry WPRY's facilities were used to achieve a personal advantage for him rather than to serve the public interest.  The evidence of the advantage enjoyed by Brown is found in the denial of equal time to Poppell, the discrimination in rates charged Jackson, the failure of Brown to pay even at the lower rate he charged himself, the failure to notify other candidates of Brown's use of the station for his campaign, and also the placement of his rebuttals.

46.  In sum, the record shows that WPRY was guilty of (1) misrepresentation, evasion, and lack of candor in its three letters to the Commission; (2) three violations of Section 315 of the Act, a violation of Section 73.120(b) of the Commission's Rules by Failing to give Poppell equal opportunities, two violations of Section 73.120(c) by giving Brown advantages in rates and charges, and violations of Section 73.112(a) of the Rules by failing on July 7 to log 11 of 12 rebuttals; and (3) permitting the use of its facilities to favor Brown, one of its principals, rather than to serve the public interest.

47.  The Examiner set out several factors which he believed mitigated the guilt of WPRY and concluded that WPRY was qualified to  [*1197]  remain a licensee and that a short-term renewal would serve as an adequate sanction for the licensee's failure to meet "the high standard of performance expected of a licensee." The Examiner made no express finding that the applicant met the standard required by Section 309(a) of the Communications Act that on this record grant of the application for renewal would be in the public interest, convenience, and necessity.

48.  In our view, the Examiner relied upon insufficient grounds to conclude that WPRY was qualified to remain a licensee.  He noted that Poppell was represented by an employee of another local radio station (Gross) and that Poppell was seeking to broadcast a tax delinquency charge against Brown which Brown believed to be untrue.  Although the employees of WPRY and Brown could reasonably have been mistaken as to Gross's connection with the other station on July 4 (because Gross had worked at the other station from June 1 to July 3, 1969), Gross's association with the other station is immaterial to WPRY's Section 315 obligation.  n29 See Milton Broadcasting Co., 34 FCC 2d 1036, 1044 (affirmed per curiam sub nom. Mopoles v. FCC, No. 72-1583, D.C. Cir., January 30, 1973). 

n29 Similarly, the fact that Poppell's campaign was "anti-Brown" is immaterial to WPRY's obligations.

49.  The Examiner's reliance on Brown's belief in the falsity of the Poppell ad charging Brown with tax delinquency emphasizes the licensee-candidate conflict which Brown faced on July 6 after he said he would rune Poppell's ads and is probably the most appealing of the considerations the Examiner used to support his conclusion.  The substance of Poppell's ads explains Brown's subsequent refusal on July 6 to run Poppell's ads and the running of his own rebuttals to counteract the charge.  Moreover, Brown understood from a telephone conversation with a Commission official that the rebuttal could be aired.  But these considerations do not touch Brown's conduct over all in denying Poppell equal time, discriminating in rates and charges, and failing to log the rebuttals; nor do these considerations diminish the guilt in the untruthful, evasive and uncandid replies to the Commission concerning the events during the campaign.  n30

n30 See paras. 29-32 supra.

50.  The Examiner also concluded that because the first rebuttal spot was logged, there was no motive of concealment or deliberate omission by Brown in not logging the 11 other rebuttal spots.  The Examiner found no reason to question Brown's explanation that the logging omission resulted from preoccupation with other matters and his failure to make up a start order.  The record evidence weighs heavily against this conclusion.  After the first rebuttal was run, Cox complained to Brown.  Brown knew, therefore, that the rebuttal was objectionable to Poppell's representative, and Brown thus had reason not to prepare a start order to log the other rebuttals.  In addition, Brown in his third letter n31 explained that a start order included the number of announcements per day.  This leaves unanswered the question of why the only start order prepared by Brown (for the first rebuttal) did not cover the other airings of his ads. 

n31 Broadcast Bureau Ex. 34.

51.  Contrary to the Examiner, the Commission finds no grounds for excusing the instances of misrepresentation, evasion and lack of  [*1198]  candor in replying to the Commission's inquiries on the threat to Gross.  The Examiner reasoned that there was no evidence to support the alleged threat of bodily harm, n32 that the allegation of the threat was never believed by Brown, and that he therefore treated the Commission's inquiries on the subject too casually as evidenced by the untruthful statements he made (I.D. Conclusions paras. 3 and 20).  Brown had no basis for believing or disbelieving the truth of Gross's charge until he had at least talked with or received a statement from each of the persons employed on July 4.  Yet his first letter to the Commission avoided answering the charge.  His second response falsely stated that he had discussed the threat with his disc jockeys, and was misleading because he then submitted a statement by three persons (himself, the program director, and an engineer) denying the threat.  He submitted no statement from any disc jockey, or any explanation of their unavailability, even though the Commission had requested statements from each person employed at the time of the incident and the joint statement clearly referred to the date of the alleged incident.  His third letter lacked candor because he said he would ask former disc jockeys the same questions he had asked the other employees when in fact he never asked other WPRY employees any questions and he sent two former disc jockeys only a prepared denial of the threat.  n33

n32 See n. 34, infra.

n33 WPRY has not excepted to any of these conclusions (I.D. Conclusions paras. 1-3) as to the nature of its replies with respect to the alleged threat.

52.  The gravity of the misconduct in answering the Commission's inquiries on the alleged threat is independent of whether the licensee took the inquiry casually or seriously or whether the outcome of the hearing on the question was favorable or unfavorable to the licensee.  n34 Rather than treating such a Commission inquiry casually, a licensee responsibly exercising its stewardship would have made every effort to assure itself of the facts when an allegation was made that a person was threatened with bodily harm after he attempted to exercise a candidate's right under Section 315. 

n34 Whether the telephone call was in fact a threat of bodily harm is not decisionally significant, and we make no finding with respect to it.  Gross could not remember the caller's exact words but was sure that the caller did not say he would strike Gross.  In a screaming, angry manner, the caller said, among other remarks, something to the effect that Gross had better not come back over here [to WPRY] if he knew what was good or that if Gross knew what was good for him he'd better keep away [from WPRY] (Tr. 257-260).  We believe these remarks are ambiguous, but in their context could reasonably have been interpreted by Gross at the time as a threat of bodily harm should he return to WPRY.

53.  The Examiner also excused the licensee's misconduct during the campaign upon the grounds that Section 315 is a specialized area of law, difficult to interpret; that the Section 315 "and related violations" took place within a relatively short period of the license term and primarily within the closing days of the primary campaign; that Brown was not well versed in the law and acted without counsel during the campaign and in responding to the Commission's letters; n35 that the running of Poppell's ads indicated a desire on Brown's part to comply once he knew what was required; and that despite his improper attitude in responding to the Commission's inquiries, Brown was not generally uncooperative with the Commission.  We do not agree. 

n35 Copies of all Commission letters were sent to a Washington communications law firm, and a copy of WPRY's first answer was sent to the same firm.  Other counsel, however, represented WPRY at the time of hearing and subsequently.

 [*1199]  54.  The Section 315 violation on July 4 resulted not from a misinterpretation of the law but from a total failure of WPRY to make provisions to honor its July 3 assurance to the Commission that Poppell would be afforded time upon his request.  n36 This was a blatant disregard of a licensee's duty.  The very fact that these events took place within the closing days of the primary campaign imposed upon the licensee the need to act expeditiously to meet its obligations.  Nor can the Commission excuse WPRY's misconduct because Brown acted without counsel.  A licensee is required to be familiar with the Commission's rules and regulations applicable to the service in which it is licensed, or to seek counsel when necessary.  If failure to consult counsel exculpates a licensee for non-compliance with Section 315, the Commission would be deprived of effective authority in implementing the legislation.  Moreover, the fact that violations of Section 315 occurred is not the heart of this case.  Brown was taking advantage of his ownership of the station to benefit his own candidacy without giving other candidates the same opportunities, even upon request.  His conduct during this time was plainly not in the public interest.  WPRY did not attempt to enlarge the issues to show that the licensee's service to the public during the rest of its license term was such as to outweigh Brown's conduct during the campaign. 

n36 Similarly, the prohibition on discrimination in rates and charges required no interpretation.

55.  With respect to the letters sent by the Commission to WPRY and answered by Brown, all the matters raised in all three letters were within Brown's knowledge, could have been ascertained by referring to station records or, with respect to the threat, by asking the persons employed by the station on July 4.

56.  In view of the specificity of Gross's allegations which were supplied to Brown with the Commission's first letter, the latter's response was on its face inadequate and required a second letter from the Commission on September 24 asking him for detailed information with respect to matters not answered in the first reply.  The unsatisfactory second answer required a third letter on December 24, again asking detailed questions arising from the previous replies.  Brown had ample opportunity, therefore, to seek expert advice in responding to the Commission's "lengthy and detailed" inquiries if he felt the need for it.  As the Commission said in Milton Broadcasting Co., supra, at 1047: "The obligation was upon [the applicant] to take affirmative steps to ascertain the true facts and to supply accurate information to the Commission.  His utter failure to employ even minimal precautions to insure that false representations were not made to the Commission would alone raise a substantial question as to whether [he] possesses those qualifications which are essential to favorable action on his renewal application." If failure to seek advice would exculpate a licensee or excuse his misrepresentations, evasions, and lack of candor in the circumstances of this case, then the Commission would be effectively precluded from protecting the public interest.  Moreover, the Examiner concluded that except for the responses with respect to the threat, there was no excuse for the other untruths in Brown's responses (I.D. Conclusions para. 21).

 [*1200]  57.  Unlike the Examiner, we do not interpret Brown's conduct between July 4 and 8 as a "desire" to comply with Section 315.  We believe that at most Brown made a reluctant effort at compliance.  After repeated communications from the Commission, Brown finally gave Poppell some radio time.  Brown answered the Commission's letters reasonably promptly and sent requested material promptly and was to that extent cooperative; but much of the information he supplied in his letters did not present a candid or full account of the subjects of inquiry, and Brown certainly could not be said to have been "cooperative" initially in trying to help the Commission ascertain the truth as to the alleged threat.

58.  Although the Bureau had the burden of initially presenting evidence on issues 1-3, the applicant had the burden of proof on those issues and of establishing under issues 4 and 5 that it possesses the necessary qualifications to remain a licensee of the Commission and that a grant of its application would serve the public interest, convenience, and necessity.  We have held that the Bureau cannot be made to bear the burden of proving beyond any degree off "nagging uncertainty" that a renewal application should be denied.  The statutory standard places the burden on the applicant to establish that the renewal will serve the public interest, and failure to place that burden on the applicant would be serious error.  Milton Broadcasting Co., supra, at 1043. The Commission cannot conclude on this record that WPRY has sustained its burden, especially in light of the licensee's lax attitude in replying truthfully and candidly to the Commission's repeated inquiries.

59.  Accordingly, IT IS ORDERED, That the application for renewal of license of WPRY Radio Broadcasters, Inc. for standard broadcast Station WPRY, Perry, Florida, IS DENIED;

60.  IT IS FURTHER ORDERED, That the forfeiture of $5,000 imposed by the Examiner IS CANCELLED; and

61.  It is further ordered/, That WPRY Radio Broadcasters, Inc. IS AUTHORIZED to continue to operate the station until 12:01 a.m. on July 1, 1973 to enable the licensee to conclude the station's affairs; PROVIDED, HOWEVER, That if the licensee seeks judicial review of this Decision, it is authorized to continue to operate station WPRY until thirty (30) days after the judgment of the Court of Appeals.

 

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.


APPENDIX:

Rulings on Exceptions of WPRY Radio Broadcasters, Inc.

 

Exception No.

Ruling

 

1

Denied.  The substance of the exception to the failure to include a finding that Brown's employment was terminated is implicit in the finding that Brown is considering returning to his role as General Manager.  Moreover, that Brown ceased to be General Manager after the application was designated for hearing is not decisionally significant. Brown also testified that he was considering returning to his employment as General Manager with the concurrence of other shareholders as soon as the instant proceeding was "cleared up."

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2

Granted.  The Findings in para. 7 of the Initial Decision with respect to Brown's prior political ventures and their outcome are irrelevant.

 

 

 

 

 

 

 

3(a)

Denied.  That Brown and Poppell had met after they qualified as candidates for Mayor but before June 30, 1969, and there is no evidence that Poppell then sought time over WPRY is decisionally insignificant.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(b)

 

Denied.  That Brown asked

 

 

 

to sell Poppell time on June 30, 1969, at the happenstance meeting rather than Poppell asking to buy time is decisionally insignificant.  The second requested sentence, that the first time Poppell sought to purchase time was on July 5, distorts the record. Poppell went to WPRY on June 30 to purchase time and his representatives went on July 4 to seek free time.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(c)

Denied.  See para. 30 of this decision with respect to the conclusion that Brown made an appointment with Poppell for 1:00 p.m. on June 30, 1969.

 

 

 

 

 

 

 

 

 

 

 

4

Denied.  We read paragraphs 8, 9, and 10 of the findings of fact in the Initial Decision as establishing that Poppell advised Gross of the failure of Brown to keep his appointment some time after June 30 and not on June 25 when Poppell met Gross and Gross agreed to work for him.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5

Denied.  It is clear from the findings that Poppell was not present with Gross and Cox at the July 4, 1969, visit.  It is irrelevant whether Brown refused Poppell time prior to July 4.

 

6

Denied.  Whether Cox engaged in any other campaign activities for Poppell is decisionally insignificant.

 

7

Denied.  It is decisionally insignificant that Brown was at the station on July 3, 1969, and did not receive any requests for political time and that Cox did not know whether Brown was at the station on July 4 and did not call for an appointment.

 

 

 

8 Denied.  That Brown did not

 

 

 

know Poppell had representatives at the time of the July 4, 1969, visit is decisionally insignificant.

 

 

 

 

 

 

 

9

Denied.  The telegram of July 5, 1969 (Broadcast Bureau Ex. 4) was prepared by Cox and Gross for Poppell and signed by him.  The telegram refers to the "second time" Poppell was refused time and the refusal of time to his representatives.  The Commission reads this in context as meaning two separate events which Poppell charged were violations of Section 315: Brown's failure to keep the appointment with Poppell to sell time on June 30, 1969 (which was the subject of Poppell's first telegram) and the denial of time to him when Gross and Cox went as his representatives to WPRY on July 4, 1969.  Poppell's testimony that he was personally denied time was referring to an occasion different from the time Cox and Gross went alone for him and were refused (Tr. 190).

 

10

Denied.  The Examiner observed Brown, heard Brown's conflicting testimony, and determined that Brown in his earlier testimony (at Tr. 338-339) "unequivocally" indicated that Brown at the July 5 meeting was only offering to sell time.  (I.D. Findings of Fact. para. 20 n. 7). See also para. 40 of this decision.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

11

Denied.  It is decisionally insignificant whether the tapes taken to WPRY on July 6 were the same or different from those taken to WPRY on July 4.  See paras. 36-41 of this decision.

 

 

 

 

12. Denied.  The Commission modifies

 

 

paragraph 24 of the Findings of Fact to delete the statement in the last sentence that Cox "left under the impression that the Poppell spots would not be run." The requested additional findings that Brown asked Cox whether the Poppell tapes were to be run and Cox's referring to the arrangement Brown had made with Poppell thus become decisionally insignificant.  The record

is clear that the Poppell ads were run 12 times on July 7.

 

13

Denied.  Brown's inability to recall the statement he wanted Cox to sign before releasing the original tapes is relevant to a weighing of Brown's testimony against Cox's for credibility.

 

14

Denied.  It is decisionally insignificant that Brown at the request of the Broadcast Bureau left the witness stand to go home and returned promptly with uncashed salary checks of about $7,000 payable to him.  A stipulation had been entered that the amount of uncancelled salary checks was over $200, an amount sufficient to have covered the amount due WPRY from Brown for political ads.

 

15(a), (b) and (c)

 

 

Denied.  See para. 30 of this decision.  With respect to the conclusions that Brown's denial of an appointment and of refusing Popell political time were untrue and with respect to the nature of the receipt that brown requested Cox to sign.

 

16

Denied.  See para. 30 of this decision.  The conclusions that Brown lacked candor in replying that Poppell received all the time he asked for is not inconsistent with the conclusion that Brown may have misunderstood how many times Poppell's spots were to be run.  The first conclusion plainly is referring to the July 4 request for time -- that is, "more time and at an earlier date."

 

17

Denied.  See para. 32 of this decision, which supports the conclusion that Brown's statement that he paid for his ads was untrue.

 

18(a) and (b)

Denied.  See paras. 35-42 of this decision with respect to the violation of Section 315 by the denial of equal time for Poppell.

 

(c)

Granted to the extent that the Initial Decision is corrected to make clear that Section 315 did not directly impose an obligation on WPRY to notify othert candidates of Brown's use of the station. Denied in all other respects. See para. 43 of the decision.

 

(d)

Denied.  See paras. 37-41 of this decision.

 

(e)

Granted to the extent that the Initial Decision is corrected to make clear that the airing of the rebuttals was not a violation of Section 315.  Denied in all other respects.  See paras. 44-45 of this decision.

 

19(a)

Denied.  The Examiner's conclusion that Brown at the July 5, 1969, eveing meeting with Poppell offered only to sell time is supported by the record.  See para. 40 of this decision.

 

(b)

 

 

Denied.  Whether the conclusion

 

 

 

in the Initial Decision on attempted censorship was correct becomes irrelevant under this decision.  See para. 28 nn. 12 and 14.

 

 

 

 

 

 

 

 

 

(c)

Denied.  See para. 44 with respect to the placement of rebuttals and paras. 35-42 with respect to the violation of Section 315 in denying Poppell equal time.

 

 

 

 

 

 

 

 

 

 

 

20

Denied.  See paras. 35-44 of this decision.

 

 

 

21 and 22

Denied.  See para. 34 of this decision with respect to the violations of Section 315 of the Act and Section 73.120(c) of the rule by the failure to charge Brown the same rates as those charged Jackson and the failure of Brown to pay even at the lower rates.

 

23

Denied.  The record supports the conclusion that WPRY was used to serve Brown's political interests rather than the public interest.  The record does not support the requested conclusion that there was no technical noncompliance with Section 315.  See paras. 33-45.

 

24

Denied.  The record supports the imposition of a forfeiture for willful and repeated violations of Section 315 and the Commission's Rules.  The Commission is, however, canceling the forfeiture.

 

Rulings on Exceptions of the Broadcast Bureau

Exception No.

Ruling

1

Granted in part.  The first sentence of para. 16 of the Conclusions clusions of the Initial Decision is modified to reflect Gross's association with the other local radio station during the campaign as set forth in para. 13 of this decision. Denied in all other respects.

 

 

 

 

 

 

 

 

2

Granted in accordance with para. 50 of this Decision.

 

3

Denied.  Whether there was in fact a threat of bodily harm to Gross is decisionally insignificant. See n. 34 of this decision.

 

 

 

 

4

Denied.  Paras. 52-58 of this decision adequately state the reasons for the Commission's conclusions that are contrary to those in para. 21 of the conclusions of the Initial Decision.

 

 

 

 

 

 

5 and 6

Granted in accordance with

 

this decision.


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