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MEZO, Welcome Ann, THE CITIZENS COMMUNICATIONS CENTER: ITS CONTRIBUTIONS TO PUBLIC PARTICIPATION IN BROADCASTING.

The American University, M.A., 1972 Mass Communications

University Microfilms, A XEROXCompany , Ann Arbor, Michigan

© 1973

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ALL R iarrs rlservkd

THIS DISSERTATION HAS BEEN MICROFILMED EXACTLY AS RECEIVED. THE CITIZENS COMMUNICATIONS CENTER; ITS CONTRIBUTIONS TO PUBLIC PARTICIPATION IN BROADCASTING

by

Welcome Ann Mezo

Submitted to the

Faculty of the College of Arts and Sciences

of the American University

in Partial Fulfillment of

the Requirements for the Degree

of

Master of Arts

Communications

Signatures of Committee:

Chairman^

Dean of the ColKege

Date : Date f V

THE AMERICAN UNIVERSITY

1972 FEB 26 1973 The American University Washington, D. C. Vé/l PLEASE NOTE:

Some pages may have

i nd i St i net print.

Filmed as received.

University Microfilms, A Xerox Education Company TABLE OF CONTENTS

PAGE

CHAPTER I - INTRODUCTION ...... 1

I. Background of the Study...... 1

II. Purpose of the Study...... 3

III. Methodology of the S tu d y...... 4

IV. Significance of the S tu d y...... 5

CHAPTER I I - ORGANIZATION OF THE CITIZENS COMMUNICATIONS CENTER . . . 8

I. The Founding...... 8

II. Funding and Personnel ...... 10

III. Purpose...... 13

IV. Future Plans ...... 15

CHAPTER I I I - ACCESS FOR RACIAL MINORITIES AND THE DISAVANTAGED . . 19

I. Early Cases...... 19

P r o c e d u r e ...... 20

Washington Blacks Challenge WMAL-TV License Renewal . . . 22

Back Alley Theatre Complaint of Programming Discrimination 25

KRON-TV Charged with Monopolistic Practices ...... 26

II. Blacks Challenge License Renewals of All Atlanta Stations. 28

III. Million Dollar Settlement Negotiated for Minority Programming ...... 38

IV. Rural Blacks Charge News Discrimination ...... 47

V. Alabama E ducational T e le v is io n Commission ...... 50

VI. Citizens Enforce Top-Fifty Markets Policy ...... 57

VII. Other Cases ...... 60

Format Changes ...... 61 i l l

PAGE

Syracuse Blacks Seek FM License ...... 61

Columbus, Ohio, License Renewal Challenges ...... 62

Journalism Professors Challenge WISC-TV ...... 63

Chicago Citizens Negotiate with Network Stations...... 63

CHAPTER IV - ACCESS FOR CONTROVERSIAL ISSU E S...... 64

I, U.S. Senators Ask for Prime Time to Oppose Administration V i e w s ...... 64

IX. Quaker Peace Committee Seeks Free Broadcast Time for Views 65

III. Business Executives Attempt to Purchase Broadcast Time for Political M essage...... 69

CHAPTER V - ACCESS TO REGULATORY PROCESSES...... 78

I. Primer on A scertainm ent o f Community Problems ...... 78

II. Renewal of Licenses by Comparative Hearings ...... 84

III. Reimbursement of Expenses for Challengers...... 96

IV. Other Activities of the Center ...... 100

Participation In Office of Management and Budget Hearing . 100

CATV P a n e l ...... 101

Summer Study Group ...... 102

ACT ...... 103

CHAPTER VI “ SUMMARY AND CONCLUSIONS...... 104

I. Summary...... 104

Major A ch iev em e n ts ...... 104

M inority Programming ...... 105

Educational Television ...... 106

Top-Fifty Markets Policy ...... 107

Right of R ep ly...... 108 iv

PAGE

Access to Advertising T im e ...... 109

Access to Ownership...... 110

Right to Reimbursement of E xpenses...... I l l

Waiver-Negotiate Strategy ...... 112

Minor Achievements ...... 113

R acial D iscrim ination in Programming ...... 113

Rural Black Challenge ...... 113

Ascertainment of Community Needs ...... 113

O ffice of Management and Budget Meeting...... 114

Aid to C itizens ...... 114

II. Conclusions...... 115

P r o b le m s...... 115

Progress ...... 117

BIBLIOGRAPHY...... 120

APPENDIX...... 128 CHAPTER I

INTRODUCTION

I . BACKGROUND OF THE STUDY

In the early days of television Congress recognized that there could be only a limited number of stations in any area and gave the Federal

Communications Commission power to decide who would be allowed to use the "airwaves." Broadcast facilities, under the Communications Act of 1934, were to be licensed by the FCC to operate for the owner's pro­ fit, but also in the "public interest, convenience and necessity."^

However, in all its history, the FCC has never refused to renew the license of a television station for failure to serve the needs or In­ terests of the community in which it was licensed. Although the public had complained of various stations and even organized to oppose license renewals, prior to 1969 the FCC had allowed only a relatively few indi­ viduals who could show financial damage or broadcast interference to participate in license renewal hearings.

Until 1969, all citizen efforts failed to prevent a single license renewal. This record was changed on June 20, 1969, when the D is tr ic t

of Columbia Circuit Court of Appeals ordered the FCC to deny the license 2 of Station WLBT-TV, Jackson, M ississippi.

^U. S. Congress, Communications Act of 1934. 47 U.S.C. Section 309 (a).

Office of Communication of United Church of Christ v_. Federal Com­ munications Commission. 425 F. 2d 443 (1969). 2

This decision was the result of action taken by the United Church

of Christ's Office of Communication in 1965. The Office intervened in a license renewal case on behalf of black citizens of Jackson who charged 3 WLBT-TV with discrimination in news and programming.

The four years of legal action which followed led to the court de­

cision which represented a major victory for citizen groups. The case

established the right of local citizens to participate in FCC hearings

on license renewals. The court also stated that a broadcast license

should not be renewed when the station's past performance was in con- 4 flict with the public interest.

Since the United Church of Christ decision, there has been a pro­

liferation of cases involving citizens protesting license renewals. The

majority of these cases have utilized research, advice and legal aid from

one of two organizations--the Office of Communications of the United

Church of C hrist and C itizen s Communications C enter.

The Center, which was founded in August, 1969, is the first public

interest communication law firm in the United States. In the period be­

tween February, 1970, and October, 1970, CITIZENS was involved in 45 of

the 65 challenges in license renewal. In addition, the organization was

active in negotiating settlements with stations whose licenses were chal­

lenged.

In the courts, the Center sought judicial relief for organizations

who wished to obtain access to broadcast time to express minority view­

points on controversial issues. The court of appeals was also petitioned

^Ibid. ^Ibid. 3 for a ruling granting citizens groups the right to reimbursement for legal expenses incurred during the challenge to a broadcaster's license.

The right of citizens to challenge license renewals was protected by the Center's opposition to the FCC's Statement of Policy on Comparative

Renewals although a court decision was needed to achieve this protection.

CITIZENS has assisted the poor, the racial minorities, the citizen, and proponents of unpopular causes to assure that the broadcast media reflects input from and is responsive to the total community. The Center has established precedents and has had an influence out of all proportion to its origination as a one-lawyer organization.

II. PURPOSE OF THE STUDY

This historical analysis will trace the development of the Citizen

Communications Center from its founding in August, 1969, to May, 1972.

The organization will be examined in terms of its contributions in assis­ ting citizens, especially racial and political minorities, to gain access to broadcast time, employment in the broadcast industry and p articip atio n in the regulatory processes of broadcasting.

The study will analyze the Center's mission of providing research, legal assistance, guidance, information and education to citizen groups while protecting the general rights of citizens in the regulatory pro­ cesses.

Legal precedents and negotiating techniques developed by the Center will be evaluated in terms of their effect upon the broadcast industry,

the courts and the Federal Communications Commission. The value of these contributions to local citizen groups will be examined. III. METHODOLOGY OF THE STUDY

The methodology of the study has involved research from predomi­ nantly primary sources. Interviews were conducted with Albert Kramer, executive director of CITIZENS and the following persons:

Nicholas Johnson, Commissioner, Federal Communications Commission; Kenneth A, Cox, then Commissioner, FCC; Robert E. Lee, Commissioner, FCC; Robert T. Barley, then Commissioner, FCC; Robert Wells, then Commissioner, FCC; Daniel Olbaum, general counsel, FCC; Kenneth Miller, FCC liason to the White House; Henry Geller, assistant to the chairman, FCC; Robert Thorpe, assistant to Commissioner Johnson; Tracy Weston, then assistant to Commissioner Johnson; Jerome A. Barron, professor at George Washington U niversity and communications law authority; John F. Banshaf, Jr., professor at George Washington University and a c tiv is t in c itiz e n p a rtic ip a tio n movement; Martin Kuhn, counsel to the House of Representatives Subcommittee on Power and Communications; Nicholas Zapple, counsel to the Senate Subcommittee on Communi­ cations ; Thomas Susman, assistant counsel, Senate Subcommittee on Admin­ is tr a tiv e Practice and Procedure; John D. Hardy, staff counsel to Senate Commerce Committee; Jack Blum, assistant counsel. Senate Anti-Trust Committee; Jack Massie, special project manager. Urban Law Institute, George Washington University; Vincent T. Wasilewski, president. National Association of Broad­ caste rs; John Sommers, counsel, National Association of Broadcasters; Al Beckman, Washington lobbyist for the American Broadcasting —-Company; Ted Koop, Washington lobbyist for the Columbia Broadcasting Company.

Other primary sources utilized were the files of the Citizens Communi­ cations Center dealing with the cases studied, the FCC license renewal files for stations involved in actions contested by or legally assisted by CITIZENS, and records of the United States Court of Appeals for the

D is tric t of Columbia. 5

The study includes material from publications of the FCC, the C iti­

zens Communication Center, the United Church of Christ's Office of Com­

munication, newspapers and magazines (especially Broadcasting magazine).

Unpublished documents from the Center, the N ational Association of

Broadcasters, Capitol Cities Broadcasting Corporation, Nicholas Johnson,

Senator John 0, Pastors, and the Community C oalition on Broadcasting

of Atlanta, Georgia, were also sources of information.

In addition the text of 1969 hearings before the Senate's Commun­

ication Subcommittee dealing w ith te le v isio n regulation was employed in

the study,

IV. SIGNIFICANCE OF THE STUDY

Since 1969, there has been a marked increase in citizen participa­

tion in the license renewal process. Besides fifty petitions to deny

the license renewals of various s ta tio n s , Broadcasting magazine on Sep­

tember 27, 1971, reported that citizen groups had negotiated scores of

settlements with stations that had "agreed to change their practices."^

Minority groups have negotiated changes in programming to re fle c t

th e ir culture and community problems. Equal employment opportunities

have been sought as well as the employment of members of minority groups

in management and decision-making positions.

Other citizen coalitions have intervened in the regulatory pro­

cesses before the Federal Communications Commission to establish the right

^"The struggle over broadcast access (II)," Broadcasting, LJCXXI (September 27, 1971), p. 24. 6 of the public to have a voice in broadcast matters. Through their efforts the FCC has been required, frequently through court order, to enforce

the rules it originally made to protect the public interest in broad­ casting.

Direct access to broadcast time has been the goal of other citizens who wished to present views they felt were not adequately covered in the media. In pressing their cases, they have helped advance a new concept

of the citizen's right to participate in the media as a First Amendment

freedom of speech right.

This theory of communications law holds that the perpetuation of

democratic principles is dependent upon the right of all viewpoints to

receive access to the popular media. Freedom of expression is meaning­

less, according to the theory's advocates, if there is no freedom to

communicate ideas, regardless of how co n tro v ersial, in the mass media.

It is significant that both liberal and conversative elements of

society have complained of the failure of the media, especially tele­

vision, to present an adequate coverage of either viewpoint. This frus­

tration with the media's presentation of current issues of social and

governmental reform is alleged by dissidents to have contributed to the

rise in civil disobedience and violent protest as a means of expressing

unpopular viewpoints to which the media would not otherwise give coverage.

Advocates of Community Antenna Television or Cable TV (CATV) expect

that the growth of the system with its multitude of channels will make

significant changes in the problem of access. By order of the Federal

Communications Commission a ll CATV systems must make at le a st one channel

available for public access on a first-come, non-discriminatory basis. 7

However, the advent of CATV carries with it the need for citizen involve­ ment to utilize public access channels and to protect citizen rights in

CATV.

In the meantime, there is a continuing requirement for citizen or­ ganizations to monitor local stations, the networks and the FCC to assure

that broadcasting functions in the public interest, convenience and

necessity. The problems of access will remain a major consideration for

concerned citizens as long as the media remain under the control of pri­

vate interests with indifferent or inadequate regulation by the FCC.

This study, while serving as a historical analysis of the Citizen

Communientiom Center, is also a guide to c itiz e n action. The techniques

used by the Center in litigations, interventions, and negotiations can

be adapted to the needs of citizen groups interested in influencing broad­

cast decisions.

The student is provided in these chapters with a guide to the devel­

opment of the citizen participation movement since the Center has been

involved in a majority of the movement's activities. As the first pub­

lic interest communications law firm, the organization has pioneered many

of the techniques now commonly used by citizen groups.

Therefore, this study, which is a chronicle of the struggle for

broadcast access, is of significance to the historian, the student and

the citizen. CHAPTER I I

ORGANIZATION OF THE CITIZENS COMMUNICATIONS CENTER

What our regulatory process sorely needs now are strong, independent public interest law firg s . . . - -FCC Conuniss ioner Nicholas Johnson

I. THE FOUNDING

The Citizens Communication Center (or CITIZENS) was established

August, 1969, by A lbert Harold Kramer whom Broadcas ting magazine termed

"a drop-out from the prestigious Washington law firm of Covington and

Burling."^

Kramer, who was graduated from Stanford Law School in 1967, r e ­ ceived a bachelor of arts degree with honors from the University of

California at Berkeley in 1963 and a master of arts degree in econo­ mics from the same school in 1964. When he arrived in Washington, U.C.

in 1967, he was already considering public interest law. Two years 8 la te r , he had decided upon the fie ld of communications law.

Kramer credits diverse forces with moving him into public interest

Remarks by Federal Communications Commissioner Nicholas Johnson before the Consumer Federation of America, Statler-H ilton Hotel, Wash­ ington, D.C., January 28, 1971.

^"Up the establishment; how to play the new game," Broadcas ting, LXXX (January 11, 1971), p. 23.

®A11 information and quotations in this chapter unless otherwise noted were obtained in personal interviews with Albert Kramer. 9 communication law. No public interest law firm was engaged in communi­ cations law practice at that time, although a need existed for such a service. The offer of financial support was also a determining factor.

Most important, Kramer strongly believed that the media's Impact on citizens was not balanced by an equal citizen influence on and partici­ pation in the media.

"I don't think that any thinking person can fail . . . to be im­ pressed by the fact that ninety percent of what people think is not formed by what they read but by what they see and hear on radio and television,"

Kramer s ta te s . "That makes media very very im portant. That means th a t, if you're a person who does read or who doesn't watch much television or listen to much radio, you find the people whom you are talking to are getting their views shaped in a much different way than you are. And suddenly you realize that this has an incredible impact. . ."

The area of communications law has been largely neglected by re­ formers and public interest law firms until recently, Kramer says, "even though the quality of our social and political life,' indeed the very quality of our democratic life, depend on public access to radio and t e le v is io n and a media marketplace of id ea s."

Essentially Albert Kramer the Center. He provides the energy, the enthusiasm, the intelligence and the talent for attracting financial support. The casual manner in which the Center is run disguises his great capacity for work--a trait he also expects of his staff. Despite the pervasiveness of his influence, he encourages contributions by his staff, and the result has been a very dedicated and loyal staff.

Kramer functions primarily as a strategist--!ormulating the plan 10 of attack but frequently letting others carry it out. Initially this policy was dictated by a shortage of staff. With the increase in staff has come an increase in cases so that the Center is now seeking ways to reduce its involvement in many of the more routine cases.

On July 19, 1971, Broadcasting magazine published a profile en­ titled, "A leading greener of broadcasting: Albert Kramer." The magazine included interviews with two attorneys who have sat on opposite sides of the negotiating table from Kramer. One felt Kramer was "rather arrogant" with an air of "moral superiority," but another attorney, after long and difficult negotiating sessions termed him a person of "great integrity and reliability who Is really a mixture of a liberal pragmatist and a revolutionary theorist, with the emphasis on the liberal pragmatist."

The liberal pragmatist best describes Kramer whose reasonable a tti­ tude is his most valuable asset in dealing with broadcasters. Though possessing strong opinions, he is neither belligerent nor fanatical.

He believes in the capitalistic system involving reasonable returns on investment. He is understanding of the broadcaster's economic problems while seeking the beat negotiable settlement for his clients.

I I . FUNDING AND PERSONNEL

CITIZENS received i n i t i a l backing in the amount of $31,250 from

Gordon Sherman, former president of Midas International and founder of the Midas International Foundation. Office space and part-time secre­ tarial assistance were provided by the Robert F. Kennedy Memorial.

From August, 1969, to February, 1970, Kramer, as executive director, 11 was the sole full-time employee of the Center. Within a few months of its establishment, however, CITIZENS was attracting a number of law students who worked part-time with the Center for experience and aca­ demic c re d it.

Since its founding, CITIZENS has struggled to overcome the handicap of inadequate staffing which resulted in denial of any or adequate assis­ tance to many deserving groups. Kramer often found himself operating six or seven days (and nights) a week to meet minimal commitments.

A simple lack of preparation time was the cause of some adverse decisions initially, he believes. The Center found itself at a disad­ vantage against the amply-financed communications bar employed by indus­

try members.

In February, 1970, an adm inistrafive-research a s s is ta n t was added

to the s ta ff; and in October, 1970, a second lawyer and a full-tim e

secretary joined the organization. Until recently the personnel consisted

of two attorneys, two secretarial-administrative assistants, and a re - 9 search assistant.

CITIZENS was recently incorporated as a non-profit organization in

the District of Columbia. As such it has a board of directors composed

of ten members headed by Sidney Sachs, a former president of the Dis­

t r i c t of Columbia Bar A ssociation. As a non-profit corporation, CITI­

ZENS has tax-exempt status rather than deriving its status from its 10 sponsor, the Robert F. Kennedy Memorial, as i t did formerly.

□ Citizens Communicatiens Center, Progress Report (Washington, D.C., C itizens Communications Center, May 1, 1971), pp. 11-12.

^^"Kramer firm lands $400,000," B roadcasting, LXXXII (May 1, 1972), pp. 39-40. 12

The incorporation, Kramer believes, will place CITIZENS "in a more favorable position [to obtain contributions] both from foundations and private benefactors."

CITIZENS main sources of income besides the Midas grant were a

$50,000 grant from the Stern Family Foundation awarded in October, 1970; a $30,000 grant from the D.J.B. Foundation; and royalties from the sale of FCC Commissioner Nicholas Johnson's book which have netted the Center 11 more than $3,500,

In April, 1972, the Ford Foundation announced a $400,000 grant to the Center to be used to increase the staff to three attorneys besides the director, to provide administration and office expenses, and to sup-

12 port an information program for a period of two years.

The grant was the culmination of a drive to obtain funding for a three-year period corresponding with the three-year licensing period for broadcasters. This budget would enable CITIZENS to operate through one round of license renewals involving every station in the country. This, according to Kramer, would afford all concerned citizen groups across the country "at least one bite of the apple."

Although the Ford grant did not cover the staff of five attorneys envisioned by CITIZENS in the funding proposal, it will double the ex­ isting staff and provide considerable support for the organization.

CITIZENS expansion has also carried over into its physical

^^The book referred to is Nicholas Johnson's How To Talk Back To Your Television Set (Boston: Little, Brown and Company, 1970).

12"Kramer firm lands $400,000," lo c . c l t . 13 facilities. In September, 1971, the Center moved into new and larger offices at 1812 "N" Street, N.W., Washington, D. C.

I I I . PURPOSE

The purpose of the organization as stated in its initial "State­ ment of Purpose," issued November, 1969, was to encourage television and radio programming to be "more responsive to the diverse needs and inter­ ests of all segments of the broadcasting audience." It was to function principally "as a service and support facility for local and national citizens' groups throughout the country in their relationships with the 13 Federal Communications Commission.”

The statement proposed to aid such groups by performing, without charge for its services, a number of functions:

It w ill prepare and distribute basic factual manuals on citizens’ rights to access to the media and on FCC procedures.

It w ill provide complainants with rudimentary legal and strategic advice and counsel in the Initial stages of their proceedings.

It will refer complainants to lawyers, other professional services, and interested local groups or national organiza­ tion s .

It w ill undertake to provide research and perform other services on behalf of citizens groups at the FCC or in basic sources of published information.

It will offer coordinating functions such as referrals, conferences and training institutes, and newsletters.

It w ill serve as an information center to provide local

^^Citizens Communications Center, "Statement of Purpose" (Washington, D.C.: Citizens Communications Center, November, 1969), p. 1. (Xeroxed) 14

groups with information regarding legislative, judicial, and administrative proceedings that may affect broadcasting in general and specific areas in particular, ^

In addition, CITIZENS would undertake direct legal representation to the extent its resources would permit--especially in cases that appeared

to be "particularly significant in terms of immediate effect on the community or long-term legal principles," However it did not propose to operate as a communications law firm, but would be a support facility

for others while remaining in the background and leaving public rela- 15 tions activities to the organizations it served.

The Center also proposed to engage in research, policy studies, the

presentation of new proposals, and participation in FCC rule-making pro­ cedures. Its policy would be to develop relations with law firms, law

schools and other institutions that might wish to make personnel avail­

able for work or training in the communications field.

A more recent Progress Report makes i t c le a r that the i n i t i a l l y -

modest aims have been greatly expanded. The organization's activities

are now stated as being directed at "reform of and intervention in the

decision-making process.The report states:

CITIZENS is not attempting to restructure broadcasting or create a model "reformed" media. If the decision-making progress is kept open so that divergent, competing and sometimes antagon­ istic interests can vie for attention and possibly be heard, there may indeed by a "reform" of the media itself. But it w ill un­ doubtedly be a by-product of the struggle between conflicting views and interests.^®

^^Ibid., p. 3. l^Ibid., p. 4. ^^Ibid.

^^CITIZENS, Progress Report, op. c lt.. p. 10.

^^Ibid. . pp. 10-11. 15

According to the report, CITIZENS is attempting to open the federal regulatory process to adversary procedures and participation by citizens.

It is particularly concerned with providing aid to groups without re­

sources or technical skills. The Center also seeks to inform citizens and community groups of their rights to participate in the decision­ making processes and to have access to the broadcast media. The train­

ing of advocates to assert these rights is another service of the organ­

iz a tio n .

Largely because of its expanded role, the Center is less able to

remain in the background as it originally intended. CITIZENS is re­

ceiving more and more publicity as its name figures frequently in news­

paper and magazine articles dealing with legal cases, negotiations, and

actions before the FCC to which it is a party.

IV. FUTURE PLANS

In a statement envisioning an expanded role for the Center, its

director foresaw an eventual staff of five attorneys, including the dir­

ector, as well as a number of legal interns. This personnel would carry

out four separate but related functions; advocacy at the Commission and

court level, monitoring of the Commission, field activities, and educa- 19 tive-informâtion dissemination services.

Besides a board of directors, the Center would have a voluntary

client-advisory committee linking CITIZENS with "the community on one

^^Citizens Communication Center, "A Proposal for Funding" (Washington, D.C.: Citizens Communication Center, March, 1971), p. 10. (Xeroxed) 16 hand and a group of prominent expert advisors on the other.

In its expanded role, CITIZENS would provide citizen and community groups with direct legal assistance "to respond to media abuses and 21 initiate creative reform in the decision making process."

The initiation of and participation in rule-making proceedings at

the FCC would be an important vehicle for the proposed reform. CITIZENS would attempt to supplement precedents against individual stations "by

advocacy and legal strategies which have the potential to affect all 22 stations directly.

Another method of representing the citizen w ill be monitoring of the

FCC. CITIZENS believes that pressure and lobbying at the FCC is over­

whelmingly in favor of industry thus limiting the input from the public :

Since its creation, the Commission has been barraged by spokes­ men from the industry and by their highly skilled lawyers and lobbyists. With tremendous resources at their disposal, the power­ ful broadcast lobby and bar can generally succeed in pushing most industry-oriented rules and legislation through either or both the Commission and the Congress because both can act without the benefit of any input except the industry's. The result has been that the Commission has become a captive of the broadcast indus­ try. It is completely insensitive, if not hostile, to the idea or possibility of citizen participation in the regulatory processes.

Two persons with experience at the level of commissioners agree with

that analysis of the FCC. Former FCC Commissioner Kenneth A. Cox, a

Democrat known as one of the Commission's two lib e r a ls , view s the FCC's

record of regulation as "spotty" with some progress and a lot of laxity.

He blames the tendency of commissioners to get "palsy-walsy" with industry

^°Ibid.. p. 11. ^^Ibid.. p. 10.

22lbid.. p. 12. ^3ibid. 17 representatives for the failure of the Commission to regulate the industry more strin g en tly .^ ^

Commissioner Nicholas Johnson, also a liberal Democrat, agrees with

Kramer that the industry controls the regulatory channels. He sees an urgent need for citizen access to Commission processes and broadcast

facilities.

CITIZENS intends to monitor the activities of the FCC and other re­

lated agencies to see that the public is kept informed so that decisions

are made only after the public has had a chance to comment and participate

in the decision-making process. Using its client list, press releases,

informal network, and special reports, CITIZENS w ill act as a "watch­ dog" and use "direct pressure on the Commission" to insure that diverse

views are heard.

Field activities will be another important part of CITIZENS' ser­

vices, enabling the Center to aid community groups to negotiate differ­

ences with broadcasters at the local level. The proposal envisions field

workers who can move into the community, ascertain the needs and goals

of the local group, and aid them in developing and carrying out a stra­

tegy for resolving issues. This would include training local citizens 27 and attorneys to handle monitoring, negotiating and legal actions.

The fourth activity proposed by CITIZENS is an educative-informâtion

^^Personal interview with FCC Commissioner Kenneth A. Cox. 2 5 Personal interview with FCC Commissioner Nicholas Johnson.

^^CITIZENS, "A Proposal for Funding," op. c lt.. p. 14.

^^Ibid. 18 dissemination service. In order to increase its effectiveness the Center w ill disseminate information about the activities of the Commission to the public.

"More than being a publisher of information," the presentation states,

"Citizens must seek to combine information with education. One of the primary reasons for the unresponsiveness of the broadcast media to com­ munity needs is the community's lack of awareness of the licensee's rela- 29 tionship and responsibility to the conmunity."

CITIZENS proposes to continue to attend seminars, retreats and con­ ferences as it has done in the past and w ill seek to sponsor workshops in selected areas of communications law. It w ill also publish and dissemin­ ate various handbooks on different aspects of access to the communications m edia.

Current projects include a primer of equal employment opportunities in broadcasting and a primer on citizens' access to the Federal Communica­ tions Commission. Both projects are incomplete due to a lack of personnel to complete the research and writing of them.

The extent to which CITIZENS' goals can be carried out w ill depend largely on the amount of funding it receives and the continuity of that funding. Financial aid, in turn, is influenced greatly by the Center's achievement of its present aims.

28ibid.. p. 15. ^^Ibid. ^°Ibid. CHAPTER I I I

ACCESS FOR RACIAL MINORITIES AND THE DISADVANTAGED

Not a license-renewal period goes by without some citizen group emerging with a petition to deny, or an informal complaint, directed against one or two or even all of the stations in a market. The groups-“like the Community Coalition on Broadcasting, in Georgia; the Black Broadcasting Coalition, in Youngstown, Ohio; the Colorado Commit­ tee on the Mass Media and the Spanish Surnaraed Inc.—are taking to heart the message that the airwaves belong to the people and that sta­ tions are licensed to serve the public.—Broadcasting magazine.

I. EARLY CASES

From its original purpose of providing research and consultation for citizens' groups interested in improving broadcast services, the Citizens

Communications Center soon graduated to legal representation of such groups and intervention in broadcast affairs on its own behalf.

Because of CITIZENS policy of providing free legal aid to groups that are without financial resources or the capability of raising substantial amounts of money, the majority of the access cases handled by the Center

have involved racial minorities. These cases have revolved mainly around

the broadcast industry's failure to ascertain and program for the needs of

minority groups in the community. Other issues have been racial discrimin­

ation, minority employment and concentration of media ownership.

Director Albert Kramer describes the Center as "content neutral"--

it is not concerned with the group's philosophy but with helping citizens

^^"Signs of changing times in renewals," Broadcasting, LXXX (May 17, 1971), pp. 34-35. 20 who would not otherwise be able to afford counsel. The John Birch Society was turned down on a request for help by CITIZENS not because of its be- 32 liefs, but because it could afford to hire legal counsel.

Procedure

When a citizens group first contacts CITIZENS, it is instructed to gather all the information publically available at the station, the pub­ lic library, and, with the help of CITIZENS, the FCC, Important pieces of information are; what persons are on the staff, what civic groups do

they belong to, and of what board of directors are they members? In

other words, what element of society do they represent and what view- 33 points are they exposed to?

The next step is a close look at the station's license renewal appli­

cation, and a comparison between the station's actual performance and the

application. The community groups are encouraged to monitor the station

for evidence of racism, racial slurs, violations of the Fairness Doctrine,

slanting of news and other discrimination.

The strategy used by the Center is based on the specific charge.

On fairness complaints, the Center checks the station's file at the FCC

to see if there are other complaints. The groups are then asked to moni­

tor specific shows if there seems to be prime offenders.

Midway between renewals, CITIZENS suggests a mid-term monitoring

to give local groups a record to compare with the station's composite week

32 Personal interview with Albert Kramer. 3 3 All information in the section Procedure based on personal in terview w ith A lbert Kramer. 21

(a sample week's programming filed with the station’s renewal application).

The citizen group is then advised by Kramer to approach the station and attempt to build a positive relationship. He stresses the idea of negotiations rather than challenges. The type of negotiation varies from city to city, according to the station structure (chain, local or net­ work owned), and various other factors.

I f the s ta tio n i s c lo se to renewal time, the community group i s in ­

structed in the range of options available—from informal complaints to

petitions to deny. Says Kramer, "We don't urge them to file petitions,

but we say . . . Here are the things you can do. These are all things

that you have to make determinations about in terras of your local needs

and what you think w ill best contribute to harmonious relations at your

local level."

In addition, CITIZENS briefs the group as to what they can expect

in negotiating sessions based on the Center's experience in other cities.

Kramer stresses that there is a great deal of good will on the part of

broadcasters, but that it is "not possible for that broadcast executive

to understand a black cultural experience, for example, just as it is

not possible for me to understand it."

Because broadcasters have neglected their responsibilities for

twenty years, they are now faced with a proliferation of grievances,

Kramer charges. "The broadcaster has problems of pressure from citizen

groups and government but . . . it does not excuse them for the respon­

sibility of the virtual abdication which has occurred over the last 20

years and from the responsibility they now bear for that abdication." 22

Washington Blacks Challenge WMAL-TV License Renewal

Less than a month after Its founding, the Center was called upon to help draft a petition to deny the license renewal of a Washington, D.C., television station. A coalition of black organizations opposed the re­ newal of the license of WMAL-TV, owned and operated by the Evening Star

Broadcasting Company (a subsidiary of the organization which publishes

The Evening Star newspaper in Washington).

The coalition charged that WMAL's programming had substantially ig­ nored Washington’s blacks who make up approximately seventy per cent of the city's total population. Representing the coalition was the Urban

Law Institute, an agency of George Washington University set up to aid 35 the disadvantaged.

At the request of the Institute and the coalition, CITIZENS helped research and draft the petition to deny the license renewal. Some nine charges were made against the station in the sizable petition including the allegation that the licensee had not consulted with a substantial num­ ber of spokesmen for the black community and had misrepresented its con­ tacts with at least thirteen of the black persons listed in its applica­ tio n . 3*

Other charges included concentration of media ownership, lack of local control by television officials, an absence of black programming

34personal in terview w ith A lbert Kramer. 35 Federal Communications Commission License Renewal F ile of WMAL-TV, "Petition to Deny," September 2, 1969.

3&Ibid. 23 and black persons in existing programs, and discrimination in employment

practices and scheduling of public service announcements. Inadequate

news and p u blic a ffa ir s programming, and a lack of r e lig io u s programming 37 especially from black churches were also cited.

After the filing of voluminous documents and pleadings by both peti­

tioners and WNAL, the Federal Communications Commission on February 3,

1971, more than a year after the filing of the petition, adopted an

order renewing WMAL-TVs license. In the opinion supported by four of the

seven commissioners (one dissenting, one absent, and one not participa­

ting), the Commission found that the licensee did not misrepresent the

nature of its contacts with community leaders to the FCC by neglecting to

report "that it failed to disclose the purpose of the interviews, to as- 38 certain community needs and interests, to those being interviewed."

The Commission also interpreted the licensee's statement of "close

personal association" and "daily and continuing activity" to mean the

licensee need not be personally associated with each leader listed and

that the licensee's association need not involve contacting each leader 39 every day.

The Commission ignored its own precedent that a licensee's principal

responsibility is to the community of license (in this case, Wash-

3?Ibid.

3^Federal Communications Commission, "Memorandum Opinion and Order In re Application of The Evening Star Broadcasting Company for Renewal of License of Station WMAL-TV" (Washington, D.C., February 5, 1971), Para. 43, p. 27. (Mimeographed) 39lbid. 24

Ington, D.C.). It ruled that WMAL-TV was permitted to survey only a six­ teen per cent sampling of blacks in a community that is approximately , 40 seventy per cent black.

The majority opinion also noted that there was "no evidence to support the inference that the licensee has consciously excluded members of the black community from participating." This ruling was made despite the fact that the licensee could name only ten black clergymen who had appeared on WMAL's religious programs (numbering nearly one thousand, seven hun­ dred and nineteen) during the three-year license period.

The Commission agreed that the appearances were "not apparently in the radio corresponding to the District of Columbia black population," but found no fault with WMAL's religious programming.^^

In his dissenting opinion. Commissioner Nicholas Johnson took issue with the Commission findings and argued that he would designate the re­ newal for hearing on three counts--religious programming, ascertainment 43 of community needs and interests, and equal employment opportunity.

However, as a minority of one, Commissioner Johnson concluded, "In sum, I believe the facts of this case speak so eloquently on their own behalf that there is little I need do to highlight them--or that the

Nicholas Johnson, "Dissenting Opinion in WMAL-TV License Re­ newal," (Washington, D.C.; Federal Communications Commission, February 5, 1971), p. 3. (Mimeographed)

^^Federal Communications Commission Memorandum Order, op. c it. . Para. 15, p. 12.

42lbid.. Para. 30, p. 21.

^3johnson, 0 £. cit.. pp. 1-7. 25 majority can do to paper them over. I am prepared to let itrest, on the doctrine of res ipsa loquitur. I dissent.

CITIZENS director commented that the FCC decision was "unresponsive" to the needs of the black community. "The FCC all but bent over backward to do everything it could to indulge every presumption against the peti­ tioning groups—including what I would regard as plain old distortions of language--and abdicated its own procedures. I think that they were unduly unresponsive. The problem is that so much of this [regulation] is dis­ cretionary with the Commission that, unless you can point to an error of 45 law, that may be a little difficult to prove."

A notice of intent to appeal was filed by the Urban Law Institute, however the Institute was discontinued by the Board of Trustees of George

Washington University. Nevertheless the original coalition continued with the case which is still pending in the District of Columbia Cir­ cuit Court of Appeals.

Back Alley Theatre Complaint of Programming Discrimination

Early in 1970, the Back Alley Theatre, a non-profit community theater group in Washington, D.C., was invited to film an excerpt from one of its productions for airing on a local station. The group chose a scene from "The Dutchman" which d eals w ith an encounter between a black man

44ibid.. p. 7. 45 Personal interview with Albert Kramer.

46 Ibid. 26 and a white woman.

The station which had issued the invitation refused to allow the scene which showed the couple kissing to be filmed. It termed the scene 48 "too suggestive."

The theater group felt that the circumstances of the refusal indi­ cated that it was motivated by racial prejudice. On behalf of the Theatre,

CITIZENS filed a complaint with the FCC which the Commission declined to 49 investigate on "highly technical legal grounds,"

Nevertheless, CITIZENS considered the decision a partial victory in

that the Commission's opinion stated that even isolated instances of pro­ gramming d ecisio n based on ra c ia l fa cto rs could be grounds for d isc ip lin a r y action against a licensee.

KRON-TV Charged With Monopolistic Practices

Two former employees of San Francisco's Chronicle Publishing Company which owns KRON-TV, KRON-FM and the Bay Area's largest newspaper, filed

objections to the renewal of KRON-TV and KRON-FM's licenses. Their peti­

tio n argued that C hronicle had an undue concentration of ownership of media 51 in the Bay Area and had abused its monopolistic position.

In September, 1969, CITIZENS agreed to act as Washington counsel

for the complainants assisting a San Francisco attorney who volunteered

his services to the petitioners. Representing the Chronicle Publishing

47 Citizens Communications Center, Progress Report (Washington, D.C.; Citizens Communications Center, May 1, 1971), pp. xxv-xxvi.

^^Ibid. . p. X X V . ^^Ib id . . p. xxvi.

50 Ibid. 31ibid,, p. xvii. 27

Company were two San Francisco law firms and two leading Washington, D.C., firm s.32

After entering the case, CITIZENS filed between 150 and 200 formal pleadings with the FCC in addition to informal pleadings and voluminous correspondence. The hearing by the FCC examiner in San Francisco lasted several weeks and comprised several thousand pages of testimony and in­ numerable exhibits.33

In February, 1971, the Hearing Examiner issued a decision in favor of the licensee. He found that evidence was lacking to support petitioner's charge that the stations had slanted their news to advance the company's financial interests. As to the charges of undue concentration of mass media control, he held that while the company's newspaper, broadcast and

CATV interests "add up to a powerful voice," the Chronicle did not domin­ ate the media or any segment of it.^^

In the matter of the station's programming, the examiner found that

KRON had devoted substantial amounts of time, money and talent to public- serv ice programming and had made a sin cere e ffo r t to serve the needs of

i t s au d ien ce.33

Complainants' San Francisco attorney announced the intention of filing an appeal to the full Commission with the assistance of CITIZENS.

32lbid.. p. xviii. ^S^bid., p. xviii-xix.

^^"KRON renewal recommended," Broadcasting. LKXX (March 8, 1971), p. 40,

33ib id .

^^CITIZENS, Progress Report, op. c it. p. xix. 28

II. BLACKS CHALLENGE LICENSE RENEWALS OF ALL ATLANTA STATIONS

The Citizens Communications Center's contribution in the Atlanta challenges might at first glance seem to be minor since the Office of

Coianunication of the United Church of Christ was the principal consultant to the challenging citizen group. The Church had also been responsible for the program which led to the challenge.

CITIZENS director, Albert Kramer, served with the Church's field staff assisting the community group and was the group's primary source of legal counsel. However, the Center's greatest contribution was the strategy of "waiver-negotiate" which was not only successful in the

Atlanta challenges, but has been widely used by other citizen groups in subsequent negotiations.

The citizen group which finds itself facing a deadline for filing a petition to deny a station's license renewal applies for a thirty-day extension of time in which to continue negotiations. The station is faced with the knowledge that if it does not offer concessions during the thirty- day period, it may possibly face a hearing on its license renewal. A hearing is expensive for the station in terms of legal expenses, unfavor­ able publicity and loss of advertising and station personnel as a result of the uncertainty created by the possibility of loss of the station's lic e n s e .

There is a great deal of pressure created by the "waiver-negotiate" strategy to induce a station to negotiate in good faith with the citizen group. The technique also speeds up the negotiations which must be concluded in thirty days unless a further extension of time is obtained. 29

On Saturday, February 28, 1970, The Washington Post reported that the Federal Communications Commission had "deferred for 30 days action on renewing 28 Atlanta radio and television stations' licenses, thus giv­ ing a local black citizens group additional time to negotiate for more black programming and h irin g .

This was believed to be the first time that the FCC had extended the regular period for citizen objections to renewing broadcast licenses. It was also the first time that a city's entire broadcasting facilities had faced challenges on their racial policies. The challenge involved 58 five television stations and twenty-three radio stations.

The group which challenged the stations' license renewals was the

Community Coalition on Broadcasting, a loose confederation of 20 black organizations headed by co-chairman Lonnie C. King, Jr., president of the Atlanta Chapter of the National Association for the Advancement of

Colored People, and the Rev. Joseph Boone, chairman of the Atlanta Metro- 59 polltan Summit Leadership Congress.

The unprecedented action was the result of events which began in

March, 1968, when the O ffice of Communication of the United Church of

Christ launched a two-year program funded by a $160,000 grant from the

Ford Foundation. The project was designed to help combat discrimination against minorities, notably Negroes, in radio and television programming.^®

^^News Item, The Washington Post, February 28, 1970, p. A-2,

3^Ib ld . ^H h±d.

^®0ffice of Communication of the United Church of Christ, Racial Justice in Broadcasting (New York: Office of Communication of the United Church of C h rist, 1970), p, 3. 30

The funds enabled the ÜCC to set up local monitoring committees in various Southern cities including Atlanta. The committees were to do content analyses of programs, and if discrimination was found, to complain to station managers. Failing action on the part of the station, the com­ mittee would file petitions with the FCC to deny license renewals.

According to the UCC's booklet:

Atlanta was one of the first cities in which field staff of the project began work. A conference on community organization was held in April, 1968, at the invitation of staff members of the Board of National Missions of the Presbyterian Church in the U.S. The field director of the project then visited Atlanta regularly for the next 18 months, but little progress was made in conducting systematic observation of stations until early 1970. By that time several black organizations were vying with each other in attempts to make agree­ ments with Atlanta's 28 television and radio stations. These frag­ mented approaches from the black community were not taken seriously by Atlanta broadcasters.

The black community then awoke to the fact that license renewal was imminent for the Atlanta stations. Under the energetic leader­ ship of Lonnie C. Ring, director of the Atlanta branch of the NAACP, and Rev. Joseph Boone, chief executive of the Metropolitan Atlanta Summit Conference, a coalition of 20 black organizations was formed for the purpose of n eg o tia tin g KTAL-type employment and programming agreements with all the stations in the area. The new citizen group called itself the Community Coalition on Broadcasting. They immediate­ ly got in touch with the stations^ asking fordiscussions. ^2

In February, 1970, the Coalition transmitted to the Atlanta broad­ c a sters a statem ent of p o lic y agreed upon by the members of CCB, The cover letter noted, "Representatives of the coalition w ill be meeting with 63 you to discuss this contract in detail."

The "contract" was an agreement to be signed by the station which

^^"Communications Grant to UCC," Amer ica, CXVIII April 6, 1968, p. 428. 62 Office of Communication, op. c it. . p. 10. 63 See "Atlanta Broadcasters - Statement of Policÿ' in Appendix. 31 would become part of the station's application for license renewal and would constitute a promise by the station to provide said programing and service. The demands covered employment, ascertainment of black community needs, news and public a f f a ir s , p u b lic service announcements, 6^ programming, and economic development.

A ssistin g the C oalition were the O ffice of Communication of the

United Church of Christ and Citizens Communications Center. Albert Kramer

joined the field staff dispatched by the Church to aid in the negotiations.

As the deadline for the filing of oppositions to license renewals

drew closer, "CITIZENS advised the coalition to attempt a new strategy

by seeking a blanket waiver of the filing date for formal petitions to deny."

Kramer filed, on behalf of the Coalition, a petition which won them a thirty-

day extension of the deadline.^®

The FCC 8 statement granting the extension said, in part:

In view of the representation that you and the other signatories and the Atlanta licensees are currently engaged in good faith nego­ tiations regarding the tastes, needs and desires of the Atlanta Black Community, the Commission has determined that a grant of your request would be in the public interest.

To handle the negotiations members of the Coalition were divided

in to teams. Local attorneys were r e c r u ite d and b riefed by Kramer. Each

was assigned to do specific research and to assist a negotiating team.

G^ib id .

^3personal interview with Albert Kramer.

^^CITIZENS, Progress R eport. p. xv.

^^Offlce of Communication, op. c it. , p. 10. 32 68 Mock negotiating sessions were set up to train the teams.

CITIZENS directly participated in some of the negotiations and pre­

pared model petitions. Director Kramer worked with local attorneys in de­

veloping negotiating strategies and deciding how the model could be adapted

to specific situations. When not in Atlanta, he kept in dally touch with

the group by phone. As the thirty-day period drew to an end, he made

several trips to Atlanta to assist with the more difficult cases.

In general, Kramer found the network-affiliated stations to be tough

negotiators with excellent legal representation, however they also tended

to be more urbane, more responsive and had a "more sophisticated concept

of what the role of the broadcaster is.

Small stations, on the other hand, were often "relatively recalcitant

in terms of attitude, but they lacked the resources and staying power of

the larger network stations which detracted from their bargaining power,"

Kramer explained.

One primary excuse used by stations for inability to comply with the

agreement was economic hardship, but Coalition co-chairman Lonnie C. King

pointed out that "even tiny stations can put money in black banks and let 72 people know public service announcement time is available."

Stations frequently cited laws regarding fair trade practices which

barred them from giving special consideration to emerging black-owned

businesses. In programming, they referred to the policies of the FCC

^^Personal interview w ith A lbert Kramer.

^^Ibid. ^®Ibid. ^^Ibid.

^^The Washington Post, loc. c it. 33 which, they said, forbade them from delegating programming responsibility to others,^3

The stations also protested that most programming was network-orig­ inated and that locally-produced programming was too expensive. The small amount of lo c a lly orig in a ted programming was an e s p e c ia lly strong argu­ ment w ith sm all s ta tio n s .

Jet magazine, in an article entitled "Threat of Challenge Broke," outlined the progress made by the negotiators. "Twenty of the TV and radio stations agreed across the board to coalition demands," Jet re­ ported. "Failure on the broadcasters' part to implement their promises in this social area w ill constitute prima facie evidence upon which another challenge can be based at the next license renewal period three . „75 years hence."

Although not all the stations agreed to every demand, there were substantial concessions. WSB-AM and TV agreed to give "greater on-camera exposure and almost free rein to Lorenzo (Lo) Jelks, the city's first black television newsman." WSB-TV also hired a black trainee for the news beat and assigned a black to a newscamera crew. The number of blacks

on the s ta tio n 's payroll jumped from 12 to 36.

WSB-AM also featured 50minute vignettes on black persons whose accomplishments are "hidden" from public view by racial prejudice. The

73personal interview w ith A lbert Kramer.

^^Ib id .

^3jet. 38:16-18, April 30, 1970.

^^Ibid. 34 program is produced by predominantly-black Atlanta University.

Black-oriented soul radio station, WÂCR, added a black man to its board of directors, as did black-oriented gospel radio station, HERD.

"Jack Moore, a black media veteran, was named vice-president of the 11- station (AM and FM) Miami-based Dee Rivers chain, whose 50,000 watt flag­ ship AM station, WGUN, in suburban Atlanta came under coalition scrutiny," 78 Jet reported.

WAGA-TV, and CBS affiliate, promoted "Emanuel Hall, 31, a 4-year veteran newsman w ith 18 months on the WAGA news sta ff" to anchorman of the 6 P.M. and 11 P.M. Saturday newscasts. In addition WAGA added "doz­ ens of new black tech n icia n s (cameramen, floor d ir e c to r s, film p ro cesso rs, news writers)" and a black announcer—nine teen-year-old college freshman,

Clarence Wilson. On Sunday afternoons, WAGA-TV began airing The Xernona 79 Clayton Show, a "talk-fest" featuring a black hostess.

The ABC a f f i l i a t e , WQXI, named a black newsman. Bob N ea l, as anchor- 80 man for its newscasts.

Jet ' 8 article told only a part of the story. For example, WGST-AM, at the Georgia Institute of Technology, agreed to submit a policy state­ ment based on talks with the Coalition but added that the statement did not amend or modify the station's renewal application. The Coalition, nevertheless, wrote the FCC signifying its approval of the "Policies and 81 Procedures" proposed by WGST.

WATL-TV, a UHF station, did not sign the agreement, but reported that

^^Ibid. ^^Ibid. 79xbid. ^^Ibid. 81 Federal Communications Commission License Renewal F ile of WGST-AM. 35

it had hired ten blacks on a staff of forty-nine. WSB agreed tenta­

tively to the "contract" but failed to submit proposals to the Coalition

by the agreed-upon date. The Coalition filed a petition for an extension 83 of time (six days), and agreement was reached in that time.

Five stations failed to reach agreement with the Coalition in the

thirty-day period. WAVO-AM, the Bob Jones University station, filed an

opposition to the petition to deny on July 1, 1970, which was answered by

a request for an extension of time to reply (to August 17,1 9 7 0 ) lo

February, 1971, the station was sold to Robert M. Sudbrink and family,

thus coming under new management.

In the case of WTJH-AM, against whom a "Petition to Deny" was filed,

the station and the Coalition representatives continued to meet, and on

April 20, 1970, a statement of policy was forwarded by the station to Joi

Thompson, actin g d irecto r, NAACP, A tlanta. The C oalition subsequently withdrew its "Petition to Deny."

WGUN-AM, another holdout, eventually issued a "Statement of Policy"

that was to be "associated" with the pending application for license re­

newal. The statement agreed to many of the Coalition demands and in­

cluded a black man. Jack Moore, to be appointed to the board of directors.

^^Federal Communications Commission License Renewal File of WATL-TV.

Q "Ï Federal Communications Commission License Renewal F ile of WSB-AM.

®^Federal Communications Commission License Renewal File of WAVO-AM.

33"Sudbrink radio family to increase by three," Broadcasting. LXXX (February 22, 1971), p. 33.

®^ederal Communications Commission License Renewal F ile of WTJH-AM. 36

On August 17, 1970, the Coalition filed a "Motion to Dismiss Petition to 87 Deny" based on their satisfactory negotiations with the station.

Of the two radio stations requesting additional time for negotiations,

WRNG-AM's negotiations were settled on April 8, 1970, when the Coalition 88 notified the FCC that agreement had been reached. WYZE-AM's transfer

to a new owner was approved April 9, 1970, by the Coalition clearing the go way for i t s renewal by the FCC.

WJRJ-TV, a UHF station, was transferred to new owners and the call

letters changed to WTCG-TV. The license renewal was approved by the FCC 90 with Coalition acquiescence.

In a postscript to the negotiations, the Atlanta Journal carried a news

report on January 1, 1971, which said that "Leaders of Atlanta's Black

Coalition [sic] called upon the Federal Communications Commission to revoke

the broadcasting license of WAGA." Rev. Joseph Boone was quoted as saying

that "WAGA-TV management had pledged to the c o a litio n that a black man 91 would f i l l a weekend anchorman s lo t."

In a letter of January 7, 1971, Coalition co-chairmen King and Boone

complained to the FCC that the station had violated its agreement by re- 92 moval of a black man from a position of responsibility.

87 Federal Communications Commission License Renewal File of WGUN-AM. 88 Federal Communications Commission License Renewal F ile of WRNG-AM. 89 Federal Communications Commission License Renewal F ile of WYZE-AM. 90 Federal Communications Commission License Renewal F ile of WTCG-TV. 91 News Item, Atlanta Journal. January 1, 1971. 92 Federal Communications Commission License Renewal F ile of WAGA-TV. 37

The Coalition's announcement that it would seek revocation of

WAGA-TV'a license also Included plans to seek a review of all stations in Atlanta. On January 8, 1971, the Coalition wrote all stations request­ ing Inform ation on a d v e r tis e r s , both n a tio n a l and lo c a l, for December,

1970, to January, 1971; an employee breakdown--full and part-time, black and w hite ; tra in ees and black tr a in e e s ; the number of blacks appearing on local programming since March, 1970—(A.) types of programs, (B.) time of presentations; number of public service announcements (local) since

March, 1970; number of PSA's geared toward black community and their 93 time s lo t s ; and co p ies of programming lo g s sin ce March, 1970.

The possibility of review of station performance and compliance with the Statements of Policy, even though ultimately rejected in the

Atlanta case, introduced a new element into the license renewal process.

Technically the FCC has the authority to take action against stations not complying with promises made at the time of renewal without waiting for the next renewal period.

A year after blacks had negotiated with Atlanta stations, Joi

Thompson remarked that service was "back to normal — it's white." She conceded that some progress had been made but added that the stations did

not follow through and that black leaders had been unable to apply the continual pressure necessary to assure that the broadcasters complied with 94 the agreements.

93 Coalition letter in files of Citizen Communications Center. 94 "The struggle over broadcast access," Broadcasting , LXXXI (September 20, 1971), pp. 41-43. 38

Said the Office of Communication in summing up the Atlanta proceedings,

"The success of the Atlanta Coalition demonstrates the extensive changes in broadcasting that can be achieved through the methods and strategies developed by this project...Significantly, the effort brought assistance from the FCC, which six years ago refused to recognize the public as a party in broadcast license proceedings. It was shown that represent­ atives of a unified black community, armed with knowledge of their legal rights, facts about station practices and specific goals for change, can persuade broadcasters to file amended license applications that guarantee 95 substantial benefits to blacks."

I I I . MILLION DOLLAR SETTLEMENT NEGOTIATED FOR MINORITY PROGRAMMING

In June, 1970, Capital Cities Broadcasting Corporation filed an application with the Federal Communications Commission to acquire Triangle

Publications, Inc.'s radio and television empire. Triangle's nine broad­ cast holdings included two television stations considered to be in the top fifty markets in the country.

Mindful of the FCC s policy to limit the acquisition of top-fifty market stations to two VHF stations per owner, Capital Cities promised to s e l l two s ta tio n s i t owned in Albany, New York, and Huntington, West V ir­ ginia, in order to acquire the more profitable Triangle stations in larger

^^Office of Communication, op. c it. . p. 11.

^^Federal Communications Commission File BALH-1412 for Assign­ ment of L icenses of WFIL-TV, WNHC-TV, KFRE-TV. 39

97 market areas (Philadelphia and New Haven).

Twelve students, part of a summer study group examining the function­

ing of the FCC, became the nucleus for a citizen challenge to the corpora­

tion's multi-million dollar transaction. The students, from various law

schools and various parts of the country, were part of a study made possi­

ble by grants from the Charles F. Kettering Foundation, Boston College

Law School, Consumers Union, National Citizens Commission for Broadcasting, go the Robert F. Kennedy Memorial and the Childrens Foundation.

On November 5, 1970, CITIZENS f il e d a " P etitio n to Intervene and Deny"

the Triangle sale on its own behalf and on behalf of the Law School Study 99 Group (composed of the twelve law students).

The petition charges that Capital Cities intention to sell six

Triangle radio stations acquired in the transaction to six individual

buyers for a profit constituted trafficking in station licenses, expressly

forbidden by the FCC.^®®

The petition alleged further that allowing the corporation to ac­

quire KFRE-TV, WNHC-TV, and WFIL-TV would r e s u lt in a concentration of

control of television broadcasting licenses "contrary to the public inter­

e s t.

It would also violate the FCC'_s own policy against media concentration

^^Ib id . go CITIZENS, Progress Report, op. c it. , pp. ix-x.

^^Federal Communications Commission Files for Assignment of Licenses of WFIL-TV, WNHC-TV, and KFRE-TV. ^OOlbid. ^O^Ibid. 40 by allowing Capital Cities to "trade up" In order to increase Its concen­ tration of control within the top fifty television markets, CITIZENS said. According to the petition, the purchase would triple the potential number of television households in the top fifty markets that the buyer could reach and would extend its potential influence to approximately 102 twenty per cent of all television households in the United States.

Furthermore, the petition pointed out, the corporation had failed to propose a single compelling reason of public interest to mitigate the effect of its contravention of FCC p o licy .

Capital Cities Opposition to Petition to Deny filed with the FCC on

November 18, 1970, cited the corporation's past broadcasting record as a reason for the FCC granting approval of the sale. It also denied that the sale would result in concentration of media control since Triangle's holdings would be sold to several different buyers. The resale of the radio stations, it was claimed, was only for the convenience of Triangle's owner, Walter Annenberg (Ambassador to Great Britain), who did not wish to undertake the seven separate sales himself.

Capital Cities, however, took other steps to win approval of the sale.

The p resid en t of the company, Thomas Murphy, and h is attorn ey met w ith

CITIZENS director, Albert Kramer, to discuss the opposition to the trans­ a ctio n . The i n i t i a l m eeting led to oth ers between Kramer, Murphy, o f f i c i a l s

^®2xb id . 103 Federal Communications Commission F iles, 0 £. c it.. "Opposition to Petition to Deny."

l®4xbid. 41

of the corporation and their attorneys. ^®3

From these meetings grew a proposal advanced by Capital Cities to assign a sum of money to be used for programming in the public interest and specifically in the interest of minority groups.

In Kramer' s words :

The money was never a primary stumbling block. I would say that to the extent that there were primary stumbling blocks, they were setting up procedures for Insuring community control--who was going to have veto power; even assuming we had agreed on the sum of money, how was the money going to be disbursed; who was going to have control over it . . . They were really the hardest, longest part of the nego­ tiations. Once we had a generalized guideline (and only a generalized guideline) and prior to committing anything to writing, what we did was to employ consultants to go around and give us feedback as to what the communities' areas of concern were.

The consultants, Phil Watson of Howard University, and William Wright

of Unity House and BEST (Better Efforts for Soul Television), conferred

with minority leaders in the three cities whose television stations were

involved with the transfer--Philadelphia, New Haven and Fresno.

Assisting in the Fresno consultations were Fred Lopez, community

director for the Congress of Mexican-Amerlean unit, and Donald Wheeldin,

consultant to the State of California and former professor of African

Studies at Fresno State College.

The pace of the negotiations was extremely rapid. The original peti­

tio n to deny was f ile d November 5, 1970. Approximately two weeks la ter

the first meeting between Kramer and Capital Cities representatives

occurred.

The consultants met w ith community leaders in New Haven on December

^^^All material concerning the negotiations obtained by personal Interview with CITIZENS director, Albert Kramer. 42

19; In P hiladelphia on December 21; and in Fresno on December 24. Their report was completed and submitted to the negotiating parties subsequent to December 25, 1970.

On December 29, representatives of minority groups in the three cities were flown to Washington at the expense of the corporation for a meeting with Kramer and the corporation officials. As a result of the meeting. Capital Cities issued a report on their minority program project.

It says, in part :

Capital Cities w ill commit a total of $1,000,000.00 over the three-year period following Federal Communications Commission ap­ proval of its acquisition of Stations WFIL-TV, WNHC-TV and KFRE-TV to the development of programming which reflects the views, aspira­ tions, problems and culture of black and Spanish-surnamed (Chicano, Puerto Rican, etc.) minority groups within the service areas of the three television stations.

The report also cited Capital Cities conclusions that race relations and the plight of minority groups were critical issues in each of the c i t i e s and that there was a need for the development of means by which television could express to the community the thoughts and feelings of minority groups.

In Philadelphia, said the report, race relations were found to be at the heart of most problems and "seep into almost every issue discussed by leading c itiz e n s ." In considering the symptoms of urban d isea se, the report concluded that "housing" really meant housing for minorities; that

"education" referred to the Impact of large and growing minority groups on city schools; that"crime" referred to black not white crime; and that

^^^See "Minority Program Project" in Appendix.

^®^Ibid.. pp. 3-4. 43 the difficult relationship between city and suburbs is principally over

the issues that grow out of racial p r o b l e m s . ^08

In Fresno, the report continues, "[a]Imost every major problem the applicant has learned about in the Fresno area (except perhaps for the related problems of the blacks . . .) begins and ends with the displace­ ment of the farm-worker and with the stirrings of rebellion in his children: 109 unemployment, housing, welfare, educational needs,"

Finally in New Haven, the investigations found racial problems which were reflected in housing, education and conflicts between cities and . , 110 suburbs.

The statement quotes a Mexican-American in Fresno who said,

". . . your system is not good for us. We don’t participate.

The corporation concluded that an affirmative commitment of time, effort and financial resources was required to "convey to the community at large the thoughts, aspirations and feelings of racial and other min- 112 ority groups and to do so effectively."

Special provisions of the agreement called for production of the minority programs by individual stations, the Capital Cities corporate production unit or by outside sources whose efforts would be funded wholly or partially by Capital Cities. Each of the subject stations would tele­ cast a minimum of six hours of programming in this field per year with each program at least one-half hour in length. A minimum of fifty per 113 cent of such programs would be broadcast in prime time.

108 109 110 Ibid.. p.2. Ibid., pp. 3-4. Ibid.. p. 4. I l l 112 113 Ibid., p. 3, Ibid.. pp. 3-4. Ibid.. pp. 5-6. 44

An advisory committee to be appointed by the corporation was pro­ posed in each of the three areas. The committee would be composed of minority group leaders who would be consulted concerning the manner in which funds allotted to the area would be spent. The committee would also be allowed to propose programs, criticize efforts undertaken, evaluate

the project as a whole, and communicate its views on other aspects of 114 station operation.

Capital Cities pledged a maximum effort to utilize minority group

talent. The corporation conmitted itself to achieving a ten-to-fifteen

per cent ratio of minority employees in its broadcast division during the

succeeding three years.

The memorandum had barely been filed with the FCC before Broadcasting

magazine which generally reflects the views of the broadcast industry,

published an article entitled, "A spurt in the price of pacification,”

outlining the million dollar settlement. An editorial in the same issue

called the negotiations a "shakedown”.

”[T]he process of challenge and concession is getting out of hand,”

said the editorial, "when Washington-based and Washington-wise lawyers

start making careers of representing the challengers . . . The courts and

the FCC are to blame for giving challengers a role diaportionate to their

number or their claim to broadcast attention. It is up to the same 117 courts and the FCC to prevent excesses.”

^^^Ibid., pp. 7-8. ^^^Ibid.. p. 14.

^Broadcasting. ISXX (January 11, 1971), pp. 21 and 70. 117 Ibid., p. 70. 45

The editorial ignores the contrast between CITIZENS with one attorney and the Washington-based Federal Communications Bar A sociation which numbers over one thousand lawyers who make careers of representing broad- 118 casters before the FCC and in the courts.

In Including the FCC in the list of those to blame for citizen challenges becoming excessive, the writer forgets that the FCC had for years refused to allow citizens to participate in FCC proceedings until ordered to do so by a circuit court of appeals in the now-famous Church 119 of Christ decision in 1969.

The immediate r e s u lt of the commitment by C apital C itie s was the withdrawal of the Petition to Deny and Intervene by CITIZENS on its own behalf and that of the student lawyers. The petitioners urged the FCC to 120 approve the transaction as being in the public interest.

One dissatisfied citizen, Anthony R. Martin-Trigona of Radio Free

America, filed a petition to deny the transfer because of the concentra­ tion of media ownership reflected in the transaction. He also filed a protest with the Federal Trade Commission under the anti-trust review procedures. On March 1, after the approval of the sale by the FCC, Trigona filed suit in—the Court of Appeals for the District of Columbia Circuit 121 to have the FCC decision set aside. His appeal was subsequently denied.

118 Remarks made in a personal in terview w ith A lbert Kramer. 119 Office of Communication of United Church of Christ v^. Federal Communications Commission. 425 F. 2d 443 (1969). 120 Federal Communleations Commission Files, op. c it.. "Withdrawal of Petition to Intervene and to Deny." 121 Federal Communications Commission F iles, 0 £. cit.. "Petition to Deny T ransfer." A lso personal in terview w ith A lbert Kramer. 46

On February 24, 1971, the FCC approved the Capital Cities purchase by a vote of seven to zero. The Commission found that the purchaser had demonstrated "the public benefits flowing from a grant of the subject 122 applications would outweigh any detriment."

In a separate statement Commissioner Nicholas Johnson stated:

In sum I concur in the Commission's action today because of this decision's déconcentration of group ownership and our appro­ val of the Minority Program Project. My vote in no way, however, endorses or approves the Commission's action with regard to con­ duit purchasers, regioÿg^ concentration, or the programming problems I have outlined above.

The FCC also consented to the payment of five thousand dollars by

Capital Cities to the minority consultants although it acknowledged that there was some question as to its propriety. However, it said, "since the payments here are fully consummated and are of minimal significance in the present context, we need not decide whether it comes within our 124 KCMC holding.

Later, CITIZENS director evaluated the negotiations:

It was the first time you got this kind of an elaborate com­ mitment to community group participation with money there to make sure it works, with special expenses being borne by the licensee, the licensee bearing the burden of pushing the thing through and of negotiations, that is bearing the expense.

122 Federal Communications Commission "Memorandum Opinion and Order," Federal Communications Commission 71-209, 58821 (Washington, D.C.: Federal Communications Commission, February 26, 1971) (Mimeographed). 123 "Capital Cities Transfer--Concurring Opinion of Commissioner Nicholas Johnson," File No. BALH-1412 (Washington, D.C.: Federal Comm­ unications Commission, February 26, 1971) (Mimeographed). 124 Federal Communications Commission "Memorandum," Federal Commun­ ications Commission 71-209, 0 £. cit.. p. 5. 125 Personal interview with Albert Kramer. 47

Of the FCC'8 statement, Kramer said;

What we got from the Commission was a good affirmation of the fact that the top-fifty market policy is Intact. And that was very, very important, because the status of the top-fifty market was not intact prior to this, and the only reason the commission was able to approve this transaction was because it said it could find a compelling public interest. Now that means that anybody else who wants to make acquisition in the top-fifty market is going to have to come up with something . . . compelling, too. But on balance, it's not a clear cut win for either side. Both sides come away, as with most compromises, gaining some and losing some.

CITIZENS Progress Report assessed the contributions of the agreement as lying in the fact that it forced a major broadcaster to recognize the right of citizens to participate as equals in broadcast proceedings.

Community groups were able to participate in negotiations which increased 127 their awareness of their rights and the limitations on asserting them.

IV. RURAL BLACKS CHARGE NEWS DISCRIMINATION

On March 2, 1970, CITIZENS f ile d a " P e titio n to Deny" the licen se of radio station WSNT, Sandersville, Georgia, on behalf of the Southern

Christian Leadership Conference and local Sandersville black groups. The station was charged with failing to provide news coverage of a local 128 c i v i l r ig h ts movement.

The charge was significant because of the size of the black community which comprises approximately sixty per cent of the city of Sandersville

" ' i b i d . 127 CITIZENS, Progress Report, op. c it., p. x iii. 128 Federal Communications Commission License Renewal File of WSNT, "Petition to Deny," March 2, 1971. 48 and sixty-five per cent of the county of Washington in which Sandersville is located. Further, WSNT is the only broadcast facility licensed to 129 Sandersville.

The petition alleged that the "Movement," a citizens coalition spear­ headed by the Black Youth Club, an affiliate of the SCLC, had campaigned for better treatment of blacks in both the public and private sectors employing "lawful picket-lines, parades, rallies, demonstrations and selec- 130 tive buying campaigns.

The e ffo r ts of the Movement, according to p e titio n e r s , resu lted in con­ siderable violence being directed against members of the black community.

These acts were sufficiently newsworthy to be reported in the national media, but, except for one isolated news item, WSNT carried no news of 131 these events, the petitioners charge.

Petitioners stated that the station manager when queried about the

s ta tio n 's p ra ctices told them that the news p o lic y resu lted from a d esire 132 to remain neutral and to avoid "taking sides."

However, the petition pointed out, a speech advocating resistance to

integration given by Governor Lester Maddox in Washington County was

carried live by WSNT. A petition supporting integration signed by one

hundred and six black teachers failed to make the station's news broad-

^29pederal Communications Commission "Memorandum, Opinion and Order In Re Application of WSNT for License Renewal," Federal Communications Commission 71-230, 52874 (Washington, D.C.: Federal Communications Commission, March 11, 1971), Para. 2, p. 2.

^^^ederal Communications Commission License Renewal File of WSNT, op. cit.. Para. 3, p. 2.

^^^Ibid. ^^^Ibid.. Para. 4, p. 2. 49 casts, the complainants alleged, as did the fact that a large number of black demonstrators opposed to Governor Maddox's position were restrained by state troopers from entering the high school where the governor was 133 speaking.

After the filing of an "Opposition to the Petition to Deny" and a

"Reply to the Opposition to Petition to Deny," the Commission adopted a

"Memorandum Opinion and Order" on March 3, 1971, granting a hearing on the

license renewal of WSNT. The Order noted that, based on the facts presented:

[l]t appears that substantial and material questions of fact have been raised relative to whether Applicant has served the public Interest, convenience and necessity for its community of license.

The pleadings raise substantial questions regarding Applicant's performance in reference to its obligation to keep the public informed of important local news and to promote discussion of substantial local issues, especially bearing in mind that WSNT is the only broad­ cast facility licensed to Sandersville. ^

In designating the renewal for hearing, the Commission specified that

the issues were ascertainment of community needs and interests, racially

discriminatory policies, local news coverage, compliance with the Fairness

Doctrine by affording reasonable opportunity for discussion of controver­

sial issues, community service and determination as to whether the grant­

ing of the renewal would serve the public interest, convenience and nec- 135 e s a ity .

Although it had attempted unsuccessfully to negotiate with the station

prior to the FCC Order, CITIZENS found that subsequent to the ruling, the

broadcaster agreed to amend his policies to provide increased coverage

l^^ibid.. Para. 6, p. 3, ^^^Ibid., Para.16, p. 8.

135%bid. , Para. 17, p. 9. 50 136 to the black community and agreed to hire a black announcer.

This case in which CITIZENS handled all the legal representation was important to the citizen participation movement because of the willingness shown by the FCC to hold investigative hearings into the charges made by blacks against the station. By contrast in the Church of Christ case in

1966 the FCC refused to hold a hearing on charges made by members of the 137 black community until ordered to do so by the court.

According to CITIZENS, "For rural Georgia blacks, this marks a sig­ nificant victory. Equally important, the Commission's ruling designa­

ting the matter for hearing potentially has substantial precedential value

in the struggle to gain increased news coverage for blacks.

V. ALABAMA EDUCATIONAL TELEVISION COMMISSION

According to a 1971 Progress Report released by the Citizens Conmuni-

cations Center:

The Alabama Educational T elev isio n Commission (AETC) operates a statewide network of educational television stations. The sys­ tem enjoys one of the most sophisticated technical plants of any educational television system in the country. But unfortunately, the benefits of this technical plant were being denied black people. The AETC consistently refused to carry NET programs of particular relevance to blacks. It offered little integrated programming and virtually no programming designed to meet the educational needs of blacks. It has never employed a black in a responsible position and a black has never served on any policy-making body of the AETC.

136cjipi2ENS, Progress Report, op. c it.. p. xix.

^^^Office of Communication of the United Church of Christ v.. Federal Communications Commission. 425 F. 2d 443 (1969).

^^^Ib id . 1 Ibid, , pp. Kxlv-xxv, 51

On June 29, 1970, the FCC released notice of the renewal of AETC's license for a three-year-period. Included with the public notice was the text of a letter from the Commission to AETC and complainants who had protested AETC's programming policies. The Faculty Senate of the Univer­ s it y of Alabama and Miss Judith A ustin, a former AETC employee, were notified that the FCC felt that facts alleging discrimination presented 140 in their letters did not warrant further inquiry.

An "outstanding student intern" called CITIZENS attention to the notice with the result that on July 29, 1970, the Center delivered to the

FCC two petitions for reconsideration of the renewal of the license of

AETC. In one petition CITIZENS was acting on behalf of Anthony Brown, a representative of the National Association of Black Media Producers, and William D. Wright, representing BEST (Black Efforts for Soul in

Television). The second petition was filed on behalf of the Reverend

Eugene Farrell, Miss Linda Edwards and Steven Suitts, all private individuals 141 and resid en ts of Alabama.

The essence of the two petitions was that AETC had failed to meet the educational and cultural needs of the black community. They cited the

FCC*8 regulations that an educational television station be used primarily

140 Federal Communications Commission "Memorandum Order and Opinion In Re Application for Renewal of License of Alabama Educational Television Commission',' (Washington, D.C. : Federal Communications Commission, June 29, 1970). (Mimeographed) 141 Federal Communications Commission Files for License Renewal of AETC,"Petitions for Reconsideration of the Renewal of the License of Alabama Educational T e le v isio n Commission," Submitted by W illiam Wright and Anthony Brown; and the Reverend Eugene Farrell, Linda Edwards and Steven Suitts, filed July 29, 1970. Also personal interview with A lbert Kramer. 52 142 to serve the educational needs of the community.

In addition, AETC was criticized for discrimination against blacks in employment (one petition charged there were no blacks on the staff of forty employees) and with discriminating in programming by failing to present

National Educational Television (NET) programs produced especially for blacks. These programs were "Black Journal," "Soul!" "On Being Black," 143 and the Denver Black Panther trial.

The petitioners included reviews of these shows to indicate that they had been well received in other cities. A synopsis of the twenty- four episodes of "Black Journal" were included to show its relation to 144 black educational and cultural needs.

The petition went on to state that AETC had violated freedom of speech by denying blacks coverage of controversial issues and the opportunity to communicate with members of their community. Petitioners charged that AETC whose directors are appointed by the governor had failed to obtain authorization to assume control of the program direction from the

University of Alabama. This, according to petitioners, was in violation of the terms of its license which sought to prevent political considerations 145 undermining the licensee's ability to execute its responsibilities.

In reply the AETC stated that the Program Board, made up of Alabama educators, was never intended to handle day-to-day programming decisions

142 Ibid., (Farrell et al), p. 6. 143 Ib id . 144 Ib id . 145 Ibid.. p. 26. 53 146 but was set up as an advisory group only.

As an example of integrated programming, AETC cited its two daily presentations of "Sesame Street." It noted that AETC had found "Black

Journal" and "Soull" objectionable from the standpoints of "taste and 147 overall worth."

The programs were, said AETC, "not educational or cultural in the real sense of those words." "Informative, controversial, sometimes good, sometimes mediocre, sometimes tasteful, sometimes tasteless, sometimes radical, occasionally revolutionary: yes, but educational or cultural: 148 no," the Alabama Commission sta te d .

It defended its hiring policies with the statement that of fifty employees, AETC employed five blacks--one custodian, one secretary, one engineer, one production department assistant and one program producer. The institution of a training program for the development of 149 black engineers was announced by the educational system.

In his Saturday Review column, Robert Lewis Shayon upbraided the

FCC for failing to uphold the public interest in the AETC renewal.

The FCC ruling ignored the charges that the network was not meeting the needs and interests of the black community which comprised thirty per cent of its viewing audience, he said.^^*^

146 Federal Communications Commission F ile s for L icense Renewal of AETC,"Opposition to Petition for Reconsideration of the Renewal of the L icense of Alabama Educational T e le v isio n ," p. 3. 147 148 149 Ib id . . pp. 13 and 22. Ib id . . p. 22. Ib id . . p. 27.

Robert Lewis Shayon, "Curiouser and Curiouser," TV-Radio column, Saturday Review. LIII (August 8, 1970), p. 43, 54

"It gets curiouser and curiouser that the FCC's thrust these days . . .

is to break up and d iv e r sify con cen trations of media co n tro l. But a

state monopoly, which is politically appointed, gets merely an FCC yawn 151 and a 'Let's change of subject!," Shayon charged.

Shayon had touched one of the important aspects of the case--the matter of states rights versus federal regulatory rights. A ruling

against the AETC would very likely precipitate a test in the courts of

the right of the federal government to regulate a state-owned and operated

television system.

The case also had political overtones for an Administration which

had been elected with the aid of Southern voters. Shayon's implication

may be that a politically-appointed FCC was avoiding a decision on what

would be an embarassing case for the Administration.

Meanwhile, CITIZENS had forwarded cop ies of the two p e titio n s to

the Department of Health, Education and Welfare with the recommendation

that the department would postpone granting AETC further funds until

HEW had reached "a satisfactory determination as to AETC's ability to 152 handle federal funds in the public interest ..."

Raymond J. Stanley, director of the Educational Broadcasting Faci­

l i t i e s Program for HEW, re p lie d that "no a ctio n w i l l be taken to award or

deny grants under th is le g is la t io n in Alabama u n til FCC action w ith respect 153 to AETC License renewal has been determined."

151 Ib id . 152 Letter of October 23, 1970, from Albert Kramer to Raymond Stanley, Director, Educational Broadcast Facilities Bureau, HEW. 153 Letter of January 5, 1971, from Raymond Stanley of HEW to Albert Kramer. 55

AETC which was seeking two million, seven hundred thousand dollars in federal aid consulted with officials of HEW and subsequently filed with HEW and the FCC a "Proposal" designed to meet the needs of minority groups. It was an attempt to forestall a ruling by HEW's Office for

Civil Rights that the network was not in compliance with the Civil

Rights Act which would have led to a cutoff of funds pending a hearing

or voluntary compliance.

The "Proposal" promised a survey of black Alabamians as to their

programming needs, adding six blacks on the citizens advisory committee,

involving four black universities in the development of programs,

e sta b lish in g a program production center at Alabama A & M (a black 155 university), and providing a training program for blacks in broadcasting.

In "Comments on Proposal of AETC," the petitioners note that there

was still no provision for blacks in policy-making positions or in the

original six production centers. The citizens advisory committee was

critized because the blacks serving on it consisted of "one very success­

ful businessman, four educators, and a minister, hardly a sample reflecting

a 'wide diversity of economic, social, and educational backgrounds'." 156 In addition the committee had no decision-making power.

The main objection of the challengers was that the survey of blacks

proposed by AETC would be developed by whites, that there was no arrange-

154 "Minorities look to HEW for TX changes," Broadcasting. UCXXI (October 18, 1971), pp. 101-102. 155 Ibid.

^^^Federal Communications Commission F iles on AETC 0 £. c i t . , "Comments on Proposal of AETC," June 25, 1971, pp. 5, 16, 17, 18. 56 ments for black in-put in analyzing the returns, and that there was no proposal for implementation of the results of the survey.

AETC's "Proposal" satisfied HEW officials and won for the network the right to file for nearly three million dollars in HEW grants. An

in itial grant of eighty-nine thousand dollars was made to AETC by HEW 158 in October, 1971.

The FCC, however, on February 8, 1972, rescinded its 1970 action granting renewal of AETC's eight licenses and ordered that hearings be held to determine whether AETC programming served the needs of Alabama's

citizens, the extent of AETC's efforts to develop such programming, and 159 the network's efforts to assure equal opportunities and employment.

The FCC's Broadcast Bureau had recommended den ial of the p e titio n s ,

but Commission attorneys urged a hearing because of the possibility the

appeals court would reverse the Commission (as i t did in the Church of

Christ case) if it denied a hearing to local citizen groups.

After a delay of eighteen months, petitioners had achieved their

initial aim. Regardless of the outcome of the hearings which began

in April, 1972, in Montgomery, Alabama, the proceedings had already

resulted in AETC's "Proposal" which brought some concessions in employment 161 and ascertainment.

157 158 Ibid.. pp. 9, 10 and 11. Broadcasting, loc. cit. 159 "Stars and all fall on Alabama," Broadcasting. UIXXII (February 14, 1972), pp. 39-40. 160 "Public hearings," Broadcasting. LXXXII (January 31, 1972), p. 7.

^^^Personal in terview w ith A lbert Kramer. 57

Another result of the case was that it focused public attention on d iscrim inatory p r a c tic e s and produced numerous newspaper and magazine articles on the issue. Various Congressmen and Senators became inter­ ested in the proceedings and some contacted CITIZENS for further infor- 162 mation.

The FCC a ctio n in ordering hearings on the lic e n s e renew als marks the first time educational stations have been required to undergo hearings.

It definitely establishes a precedent. A failure to renew the licenses would also be a first in FCC history and would undoubtably lead to an appeal to the circuit court by AETC. There is an equal possibility that renewal would result in an appeal by the petitioners. The AETC pro­ ceedings could conceivably take a number of years to reach final settle­ ment .

VI. CITIZENS ENFORCE TOP-FIFTY MARKETS POLICY

On April 12, 1971, McGraw-Hill, Inc. filed an application with the

FCC seeking approval of the company's purchase of five television sta­ tions being sold by Time-Life Broadcasting Inc. The stations were in

San Diego, Denver, Indianapolis, G"and Rapids, Michigan, and Bakers­

field, California.

Citizens groups in San Diego, Denver and Bakersfield opposed the sa le and two p e titio n s to deny the assignm ents were f ile d --o n e by

Federal Communications Commission F iles on AETC, "Comments on Proposal of AETC," Attachment A, June 25, 1971, pp. 1-46. 163 "Burch; welcome mat always out at Federal Communications Commission," Broadcasting. LXXXll (January 10, 1972), p. 47. 58 chlcano groups and one by a black group in Denver. Both petitions cited

McGraw-Hill's lack of a "compelling public-interest showing" required of applicants seeking ownership of three VHF stations in top-fifty market areas. Discrimination in employment, inadequacy of the ascertainment of community needs, and monopolistic effects of the sale were other argu- 164 ments given by the petitioners.

Principal counsel for the petitions was provided by Albert Kramer of CITIZENS and Mario Obledo of the Mexican-American Defense League.

The United Church of Christ also provided counsel for the groups in San

Diego and Bakersfield.

From September, 1971, attorneys for the community groups met with representatives of McGraw-Hill to negotiate the issues presented in the petitions. The major stumbling block was the alleged concentration of , 166 media co n tro l.

When the FCC approved the sale in March, 1972, Robert Stein of

CITIZENS said that the Commission's decision would be appealed to the

U.S. Court of Appeals. An appeal was filed, however the groups continued to negotiate, and early in May, an agreement was announced between the 167 buyer and the minority groups.

McGraw-Hill, to avoid further litigation which might jeopardize the

164 "Time's $69-million sale clears Federal Communications Commission," Broadcasting. UÎXXII, (March 13, 1972), p. 32. 165 Ib id . 166 Ib id .

^^^"Minorities win KLZ-TV voice," Rocky Mountain News. May 12, 1972, p. 86. 59

the sale, agreed to buy only four of the five stations--two in the

top-fifty markets and two which are not. Time-Life would-keep the 168 Grand Rapids, Michigan, station, WOOD-TV.

In addition to a Minority Advisory Council, McGraw-Hill agreed to

produce eigh teen La Raza programs to be shown on a l l four s ta tio n s;

twelve prime-time cultural shows about minorities; twelve prime-time

documentaries about minority problems and accomplishments; and a weekly,

half-hour prime-time public affairs show with one show per month devoted . . 169 to minorities.

In the areas of employment, McGraw-Hill promised that fifteen per

cent of the four station's employees would be from minority groups with

twenty-five per cent holding jobs in management, sales and technical

fields. Each station will establish an editorial board which will include

one minority group member. The public affairs director of at least two

of the stations will be chosen from minority groups. Within two years,

one black, one Chicano and one other minority race member w ill appear , , 170 regu larly on camera.

Regular recruitment, education and training programs for minorities 171 in each of the four cities were also provided for in the agreement.

Louis Trujillo, president of the Colorado Committee on Mass Media

which opposed the sale of KLZ-TV in Denver to McGraw-Hill, felt that the

agreement would set a precedent for future negotiations involving minority

168 169 Ibid. Ibid. 170 Ib id . 171 Ibid. 60 groups, but admitted that some broadcasters were calling the settle- 172 ment "an unsubtle form of blackm ail."

Trujillo stated that a definite policy, obtained through constant

pressure is the only way Chicanos and other minority groups will ever 173 have a voice in broadcasting.

The Rev. Everett C. Parker of the Office of Communications, United

Church of Christ, saw the negotiations in a different light. The Rev.

Parker whose office assisted the Bakersfield and San Diego groups, inter­

preted the settlement as an enforcement of FCC policy by citizen groups.

"The FCC's top-fifty market policy has now become a reality in spite of 174 the FCC," he stated .

Broadcasting magazine aptly summarized the message contained in the

citizen group victory:

The cltizen-group movement has entered a new era in the impact it is making on the broadcast-régulatory procèss--one in which the groups use the leverage afforded by the law to enforce rules and policies when t^e FCC, in their judgment, has failed in that responsibility.

VII. OTHER CASES

During its first three years, CITIZENS worked with a number of

other community groups offerin g le g a l c o u n sel, s tr a te g ic advice and

technical assistance according to the needs of the group.

"W

^^^Ib ld . 174 "Time's $69-million sale . . .", 0 £ . c i t . , p. 32. 175 ^ Ibid. 61

Format Changes

A proposed change of format from "soul" to "middle-of-the road" for radio station KSOL in San Francisco brought CITIZENS to the aid of black comnunity groups opposed to the FCC-approved change. The Center filed a petition for reconsideration with the Commission on behalf of the black disc jockeys who were discharged by the station and for a coalition of black community groups.

The petition challenged the right of the licensee to delete a major program service without consulting his community and suggested the right of a group to have a station dedicated to its particular needs. The petition was also intended to test the FCC's response to an employment

discrimination complaint.

CITIZENS instituted a similar challenge in Greenwood, M ississippi, where the only station serving the black community switched from a

"black-oriented" format to a "country and western" format. The Greenwood

challenge, in addition to raising issues similar to the KSOL petition,

asked the Commission to initiate proceedings during the three-year license

period rather than waiting until renewal time. The petition sought a test

of the Commission's duty to act between renewals to "prevent deterioration

in or deprivation of program service.

Syracuse Blacks Seek FM License

A group of blacks sought the help of CITIZENS In filing an application

for the last available FM frequency in the city of Syracuse. There were

l76personal interview with Albert Kramer. Also CITIZENS, Progress Report, May 1, 1971, pp. xxvi-xxvii. ^77%bid. , p. x x v i i i . 62 two other applicants for the frequency, and the FCC had already designated the case for hearing. CITIZENS obtained a waiver of the Commission's rules to allow the black group to file an application although the filing dead­ line was technically closed with the designation of the case for hearing.

CITIZENS was then able to turn the case over to a Washington law firm which 178 agreed to represent the black group.

Columbus. Ohio. License Renewal Challenges

CITIZENS provided the legal resources for a coalition of citizen groups

in Columbus who wished to ch allen ge lic e n s e renew als. CITIZENS guided the research which went into the challenges and aided them in preparing docu­ ments "that reflect detailed analysis and stress the depth of feeling that creates a communications gap between black and white that is both overt and 179 intensely subtle."

The group, the Columbus Broadcast C o a litio n , had b u ilt broad community

support for its actions. In its petition to deny the license renewals of

eight local stations it was joined by six other groups. The stations were

charged with failing to ascertain adequately theneeds of theblack community,

particularly "militant" organizations, failing to provide enoughblack pro- 1 Qrt grammlng, and discrimination in employment practices.

The group's coordinator, Tony Rocciano, praised the aid received

178 citizenS, Progress Report, pp. xxviii-xxix. 179 Ib id . , p . X X .

IBOu-iq^e struggle over broadcast access," Broadcasting. LXXXI (September 20, 1971), p. 40. 63 from CITIZENS director. He termed Kramer's performance "fantastic" in staying up three days and three nights to prepare the petitions to d e n y .l« l

Journalism Professors Challenge WISC-TV

WISC-TV, in Madison was challenged by a group of journalism professors from the University of Wisconsin. CITIZENS contributions in this case were minimal and c o n siste d of providing sample documents and some " stra ­ tegic advice.

The Madison group. Better Television for Madison, challenged the news and public affairs programming of WISC-TV in an attempt to test a new theory linking station performance to profitability. The group cited 183 the s t a t io n 's poor q u a lity news and public a ffa ir s programming.

Chicago C itize n s N egotiate w ith Network Stations

In Chicago, citizens groups negotiated with network owned stations--

CBS ' 8 WBBM-AM-TV and ABC's WLS-AM-TV, Although the settlem en ts represented far less than the demands, the groups did win agreements by the stations to consult regularly with the citizens groups and to open accounts with black-owned banks in Chicago.

^Q^Ibid. 182 CITIZENS, Progress Report, p. x xi. 183 "Signs of changing times in renewals, Broadcasting. LKXX (May 17, 1971), p. 35. ^Q^Ibid. CHAPTER IV

ACCESS FOR CONTROVERSIAL ISSUES

I . U.S. SENATORS ASK FOR PRIME TIME TO OPPOSE

ADMINISTRATION VIEWS

In September, 1969, the newly-formed Citizens Communications Center was asked to assist a group of fourteen bi-partisan Senators supporting

the 1970 McGovern-HatfieId Amendment which would have restricted American

involvement in the Indochina War.

The Administration’s viewpoints on the war had been presented by

President Nixon in a series of three prime time speeches carried by all

three networks. The senators sought prime broadcast time to present

opposing views as required by the Federal Communications Commission's

Fairness Doctrine. Their aim was to present to the American people "a 186 dialogue, not a monologue.'

Working with another attorney, CITIZENS filed a complaint with the

FCC asking that the Commission rule that time must be made available for

the senators to present their views. The Commission failed to recognize

an unconditional right to present opposing views each time the President

speaks on television, however it did acknowledge that such a right of 187 reply might be necessary at some time.

185pej-gojjai interview w ith A lbert Kramer. ^66%^^ 18 7 citizens Communications Center, Progress Report (Washingt D.C.: Citizens Communications Center, May 1, 1971), pp. xxiii-xxlv. 65

As a result of the complaint, supporters of the McGovern-Hatfield

Amendment were given prime network time in which to present alternatives to current Southeastern Asia policy. CITIZENS evaluation of the proceed­ ings was that it marked a "significant contribution to the robust debate 188 on public issues which the broadcast media should be encouraging."

I I . QUAKER PEACE COMMITTEE SEEKS FREE BROADCAST TIME

FOR VIEWS

Early in 1970, CITIZENS was contacted by David Green, a professor at George Washington University, Washington, D.C., and the chairman of

the Peace Committee of the Baltimore Meeting of the Religious Society of

Friends. Professor Green had written to three Washington television sta­

tions requesting free time to rebut military recruitment advertisements

that a career in the Armed Forces was "desirable, rewarding, and the best 189 way to serve one's country."

Professor Green's request was part of the Peace Committee's campaign

to counsel young men of draft age about alternative service in keeping with

the Society of Friend's traditional pacifism. The organization maintained

that there are "equally honorable means of serving one's country, both within and without the military, and that the moral, political, social

and personal consequences of bearing arms and service in the military are

^®®Ibid- 189 David Green v. Federal Communications Commission, United States Court of Appeals for the District of Columbia Circuit, Docket No. 24,470, "Brief For Petitioner," November 9, 1970, p. 5. Also personal interview w ith A lbert Kramer. 66 190 detrimental to the individual."

After "extensive" negotiations and correspondence with the stations,

Professor Green at the request of certain stations prepared and submitted a spot announcement opposing military service. All three stations refused 191 to carry the announcement, according to Green.

WTOP-TV offered the Friends' Peace Committee the opportunity to par­

ticipate in a half-hour program which would "explore, in depth, the cam- 192 paign in which the Friends organization is engaged." WRC-TV offered

no time at a ll, and WMAL-TV suggested a "token" appearance on a Sunday 193 morning program, which. Green charged, did not reach a large audience.

On March 20, 1970, Professor Green filed a letter of complaint with

the Federal Communications Commission against stations WRC-TV and WMAL-TV,

requesting that they be ordered to comply with the Fairness Doctrine re­

quiring presentation of opposing views on controversial issues of public 194 importance.

The FCC replied on June 4, 1970, in a letter to CITIZENS, as counsel

for the petitioner, that the stations did not act unreasonably in refusing

the petitioner's requests and declined to interfere with the stations'

decisions. The Commission concluded that Armed Forces recruitment messages

^^Qjbid.. pp. 4-5. ^^^Ibid.. p. 6. 192 Letter from John R. Corporon, vice president and general mana­ ger of WTOP-TV, to David Green, March 6, 1970. See Appendix.

^^^Letter from Burton Bridgens, community affairs manager of WRC-TV, to David Green, March 20, 1970. See Appendix. Also, David Green v. Feder­ al Communications Commission, op. c it. , p. 8.

194Green v. Federal Communications Center, op. cit., pp. 8-10. 67 did not constitute the presentation of one side of a controversial issue 193 of public importance.

Acting for Professor Green, CITIZENS filed an appeal against the deci­ sion of the FCC with the District of Columbia Court of Appeals. The brief for the petitioner contended that the desirability of choosing to serve in

the regular military is the subject of recruitment ads, that it is con­ troversial public issue, and that the Peace Committee should be allowed to present an opposing view--the possibility of electing an equally lawful and honorable alternative to regular military service.

Green argued that the military ads emphasized travel, good pay, contribution to the security of this country, job training, development of hidden ability or special talent, and prestige. The ads, he contended, 197 presented military service as not only desirable but beneficial.

The b r ie f c ite d the number of persons involved, the amount of free

time donated for military recruitment ads plus the amount purchased by the Armed Forces, the potential consequences for the individual, and the degree of public debate on military service as reasons which contributed 198 to make the Issue controversial and of public interest.

However, the court's decision on June 18, 1971, supported the Com-

^^^"In Re Complaint by David C. Green Concerning Fairness Doctrine Re Stations WRC and WMAL," Federal Communications Commission 70-596, (June 4, 1970). See Appendix.

^^^Green v. Federal Communications ConmlsBioa, op. c it, . pp. 11-43.

^^^David Green v. Federal Communications Commission, op.■c it. . "Reply Brief for Petitioner," February 8, 1971, p. 6,

^®®Green, "Brief for Petitioner," pp. 17-22. 68

mission. The court ruled that legal alternatives to military service only have reference to the draft and that there is no problem of legal alter­ natives to voluntary enlistment. The petitioners, the court stated, sought to tie the draft and the Vietnam War into the recruitment ads.

The Vietnam War, said the court, had been adequately covered by network news in "full living (or dying) color," and did not need to be further 199 controverted by petitioners.

In commenting on the case, CITIZENS director noted;

Because there is that tightrope aspect that the Commission is forced to walk, it in effect means that the licensing scheme dele­ gates a good deal of decision-making power to the licensee so that the Commission does not get caught itself in censoring.

Now the argument essentially, and the Commission missed it, . . . and that may be because we did not lay it out in the brief, . . .the argument essentially is that the exercise of that decision-making power--that power to Include or exclude certain material--is itself an exercise of speech, that is a speech because that decision has an impact on the marketplace of ideas.

If that is the case, then you're talking about a right to exer­ cise a speech function, and if you're talking about a right to exer­ cise a speech function, then what we are arguing is that the Constitu­ tion compels that there be a maximum opportunity that everyone that wants to, get a crack at exercising this opportunity.201

While the Green case was a defeat for the Center, it was not a total

loss. The case provided valuable experience for a subsequent and more

successful case Involving businessmen opposed to the Vietnam War who

sought access to the broadcast media for presentation of their views.

^®®Green, "Decision of Court of Appeals," p. 6.

200"The marketplace of ideas" concept was expounded by Justice Oliver Wendell Holmes in his dissent in Abrams v. United States, 250 U .S. 616 (1919). 201 Personal in terview w ith A lbert Kramer. 69

I I I . BUSINESS EXECUTIVES ATTEMPT TO PURCHASE BROADCAST

TIME FOR POLITICAL MESSAGE

While the Green case was making i t s way from the Commission through the court, CITIZENS had already taken on a new client, the Business

Executives' Movement for Vietnam Peace (BEM).

BEM was an organization of nearly three thousand businessmen from forty-nine states. It strongly opposed the Vietnam War and attempted in June, 1969, to purchase commercial radio time for a series of one- 202 minute political messages.

The station approached by BEM was WTOP-AM, Washington, D.C., which was owned and operated by Post-Newsweek Stations, Inc. WTOP-AM had an all-news format and had reputedly the second-largest radio audience in the Washington metropolitan area. According to its publicity, WTOP reached a special, highly-sophisticated "news-hungry audience." In addition, WTOP was of unique value as a medium for BEM's views because 203 of its location in the nation's capital.

After several weeks of negotiation, WTOP rejected BEM's request to buy time although commerical time was available. The reason given was that a spot announcement did not allow sufficient time for discussion in 204 depth of controversial subjects of public importance.

BEM, counseled by CITIZENS, then filed a complaint with the Federal

Communications Conmission and, after a six-month wait, appealed to the

202 Business Executives' Move for Vietnam Peace y^. Federal Communi­ cations Commission. United States Court of Appeals for the District of Columbia Circuit, Docket No. 24,492, "Brief for Petitioners," November 23, 1970, p. 3. 203 204 Ibid.. pp. 4-5. Ibid.. pp. 5-6. 70

D is tr ic t of Columbia C ircuit Court of Appeals fo r review o f the Commis­

sion's failure to act on the complaint. Before the court could review the complaint, the FCC issued a press release on August 6, 1970, announcing

its denial of BEM's request.

The Commission asserted:

A broadcasting station is not a consnon carrier under the Com­ munications Act and therefore is not required to open its doors to all persons seeking to use the station's facilities for what­ ever purpose. As we stated, . . . it is within the licensee's judgment to determine the format for presentation of controversial issues and all other facets of such programming.^®^

On November 23, 1970, CITIZENS and attorn ey Thomas R. Asher f ile d

a petition for review of the order of the FCC with the Circuit Court of

A ppeals. The b rief raised a number of q u estion s in v olvin g F ir s t Amend­

ment rights and leaned less heavily on the Fairness Doctrine than had the

Green pleadings,

The petitioners contended that the FCC decision was discrimination

between commercial and political speech. Discrimination based on content

of speech was unconstitutional, they claimed, in view of the court's

decision in Wlrta y. Alameda-Contra Costra Transit D istrict. In Wirta

the ruling said that a public bus operator could not close advertising

space to controversial political advertisements.^®®

2®5lb id . . pp. 6-7. 206 Federal Communications Commission Press Release, Mimeo #53410, August 6, 1970. Quoted in BEM b r i e f , op. c i t ., p. 7. 207 Personal Interview w ith A lb ert Kramer.

^®®BEM brief, op. c it., p. 16. Also Wirta y. Alameda-Contra Costra T ran sit D is tr ic t. 343 P. 2d 982 (Cal. 1967). 71

The brief points out that the courts have also ruled against a

college newspaper for refusing non-commercial advertisements on controver- 209 sial issues. Further, the right of the speaker to choose the forum which he^ deems efficient for the presentation of his message has been 210 supported in the courts, petitioners asserted.

Times y . S u lliv a n , a benchmark Supreme Court d ecisio n , was described

by the brief as placing political advertisements in the protected status

of First Amendment speech. In their decision the Justices praised the

advertising medium as an "outlet for the promulgation of information and 211 ideas by persons who do not themselves have access to publishing facilities."

WTOP in its reply brief complained of the difficulties for the

broadcaster if he were forced to accept all paid editorial advertisements

proffered. It would be, the station said, a financial burden if it re­

sulted in the station having to make free time available to other groups

to oppose the editorials, and it would upset the station’s fairness 212 "balance."

In taking refuge in the Fairness Doctrine, WTOP was extremely vul­

nerable because the FCC had ruled in Cullman Broadcasting Co. (1963), that

the station's fairness obligation held even if financial burdens were

209 Ib id . A lso Lee y. Board of R egents. 306 F. Supp. 1097 (W.D. Wis. 1969). 210 Ibid., p. 17. Also Zucker v. Panitz. 299 F. Supp. 102 (S.D.N.Y, 1969). 211 Ib id . , p. 10. A lso New York Times Co. y. S u lliv a n , 376 U.S. 190 (1964). 212 BEM. op. c it. . "Reply Brief for Petitioner," January 13, 1971, pp. 20-29. 72 incurred in the process of providing a forum for opposing views. Further, the Commission said that the station was obligated to seek out and present 213 controversial issues to the public in the first place.

To the broadcaster's charge of the disruptive effect of right of access, BEM replied that nothing would be changed under the new system.

The station would not be obligated to sell programming time. It would not have to increase the advertising time from the current figure of eighteen minutes per hour, and it could still decide within the "reason­ able limits" of the Fairness Doctrine which commercials to carry. The

only difference, said the petitioners, would be that the station could

not exclude all political messages as it previously had.^^^

BEM charged in its reply brief that, under the Fairness Doctrine,

broadcasters are able to exclude those viewpoints which in their "journal­

istic judgment" are not important or controversial public issues. The

brief argued that this exercise of broad discretion by a public official

(or in this instance, a publicly-licensed official--the broadcaster) which

made it possible for him to censor or suppress the communication of ideas 215 was."clearly unconstitutional" according to legal precedent.

Burton y. Wilmington Parking Authority is cited in which the Supreme

Court found the racially discriminatory policy of a privately-owned rest-

BEM. op. c i t . . "Brief for P e titio n e r s ," November 23, 1970, pp. 22, 42, and 45. Cited is Federal Communications Commission décision in Cullman Broadcasting Co. . 40 Federal Communications Commission 516 (1963).

^^^BEM. op. c it.. "Reply Brief for Petitioners," pp. 20-29. Also personal interview with Albert Kramer.

^^^Ibid., pp. 8-9. Also Cox y. State of Louisiana. 379 U.S. 536 (1965). 73 aurant which leased space from a governmental entity unacceptable and said

that, by its inaction, the Authority, and through it the state, had made 216 itself a party to the discrimination.

The FCC*8 actions in the BEM proceedings were compared with those

of the state in the Burton case. If a state cannot, through inaction be a party to breaches of the Fourteenth Amendment, the FCC cannot, said the complainants, through failure to regulate the broadcaster, be a party to 217 infringement upon F ir st Amendment r ig h ts .

The BEM brief also stresses the argument that a radio station is a

proper forum for the dissemination of petitioners' views since it is a

medium of communication. Furthermore, this particular radio station is

uniquely suitable for the expression of BEM views because it is located 218 in the nation's capital.

Answering the FCC assertion that a broadcaster is not a common carrier,

BEM quotes the FCC*s own ruling in United Broadcasting Co. (WHKC) . The

Commission stated that though a station is not a common carrier, "these

facts, however. In no way impinge upon the duty of each station licensee

to be sensitive to the problems of public concern in the community and to

make sufficient time available, on a nondiscriminatory basis, for full 219 discussion thereof."

216 Ibid., p. 15. Also Burton v. Wilmington Parking Authority. 365 U.S. 715 (1961).

2^'ibid.

^^^Ibid., pp. 11-13.

^^^BEM, op. elt.. "Brief for Petitioner," p. 50. Also United Broad­ casting Co. (WHKC). 17 Federal Comminications Commission 2d 204 (1969). 74

BEM offered In place of the single doctrine of fairness, a system it termed a more workable combination of fairness and right of access to commercial time. This solution would help to uncover important public issues which could only come to the fore if there were a forum for their presentation. A matter may well be controversial, states the brief, but w ill never become public until coverage is provided bringing it to public attention. The present practices of broadcasters tends to seriously limit 220 the coverage of issues to a few "safe" ones, BEM charged.

In essence, the court was asked to decide whether the Fairness Doc­ trine "exhausts the Commission's obligation to assure that its radio sta­ tions do not abridge the First Amendment rights of the public, or whether the Commission and its licensees are obligated to take additional steps to assure that members of the non-license public be given a reasonable opportunity to purchase short segments of time in which to broadcast their 221 views on the Important issues of the day."

On August 3, 1971, the court ruled that broadcast licensees who per­ mit the sale of time for commercial advertising cannot arbitrarily deny 222 the purchase of time for editorial advertising.

The court decided that broadcasters are entitled to place a limit on

the amount of editorial advertising they will sell, similarly on the place­ ment of such advertising. Also the Commission could invoke the Fairness

Doctrine to require broadcasters to carry, free of charge if necessary,

^^®Ibid.. pp. 19-37. ^^^Ibid.. p. 3.

222iïCQurt g iv e s green lig h t to paid op in ion ," B roadcasting, LXXXI (August 9, 1971), pp. 12-13. 75 223 advertisements presenting opposing views of a public issue.

Judge J. Skelly Wright who wrote the majority opinion said, "We are convinced that broadcast advertising has great potential for enlivening and enriching debate on public issues, rather than drugging it with an over- 224 dose of non-ideas and non-issues as is now the case,"

CITIZENS director felt that the opinion would be an important first

step toward right of program access. "The next step down the line is whether or not you can buy programming. If United States Steel can, why 225 can't United States Senators?"

Kramer was reported as saying, "This is the first opinion that shows 226 that the court has grasped the conceptual problems of access and fairness."

While Broadcasting magazine reported broadcasters "aghast" at the

decision, its editorial, "Bummer from the bench," decried the court opinion:

"If this decision were to stand, no broadcaster would escape hopeless en-

feeblement. Those who wish to survive as doers instead of carriers will 227 vigorously support the absolutely essential appeals."

Early in September, 1971, the FCC asked the Court of Appeals to re­

hear the BEM case with the full nine judges instead of the original three-

judge panel. The FCC wished to obtain a clarification of whether the

court's decision required the sale of time for programs as well as spot

^^^Ibid. . p. 13.

^^^Ib ld . . p. 12. 225 Personal interview w ith A lbert Kramer. 226 "Court gives green light to paid opinion," op. cit., p. 12.

^^^"Bummer from the bench," Broadcasting. LXXXI (August 9, 1971), p. 50. 76 228 announcements.

When the lower court refused to rehear the case, the Conmission sought a hearing before the Supreme Court and a stay of the Court of

Appeals decision. The Supreme Court refused the stay, but took under 229 advisement the question of a review of the BEM case.

Abruptly on February 28, 1972, the Supreme Court reversed Itself and granted a stay of the Appeals Court d ecision . The high court a lso 230 announced that it would review BEM in the fall of 1972. Broadcasting's editorial held out the hope that the Supreme Court would reverse the

Court of Appeals d ecisio n , and was op tim istic because the high court 231 had accepted the case.

FCC Commissioner Nicholas Johnson who sees BEM as "the right of access case," has written an article entitled, "A Twentieth-Century Soap

Box: The Right To Purchase Radio and Television Time," for the Virginia

Law Review. The article elaborates on the views expressed by the Commi- 232 ssioner in his dissent from the majority opinion on BEM's complaint,

George Washington University Professor Jerome Barron, an author and

th e o r ist in communication law, compared BEM to a " class action" s u it.

228 "Lower court rebuffs Federal Communications Commission on BEM case," Broadcasting. LXXXI (October 11, 1971), p. 30. 229 "Appeals court fairness edict stands," Broadcasting. LXXXII (January 31, 1972), p. 19, 230 "High court to hear BEM-DNC case," Broadcasting. LXXXII (March 6, 1972), p. 30. 231 "Rescue p o ssib le," Broadcasting. IXXXII (March 6, 1972), p. 68. 232 Nicholas Johnson and Tracy Weston, "A Twentieth Century Soap Box: The Right to Purchase Radio and Television Time," 57 Virginia Lay Review , 5.74 (May, 1971). 77

Rather than granting access for one point of view (as did the Banzhaf 233 case for anti-smoking commercials), BEM would make possible commercial access for almost all points of view on controversial subjects. It is 234 this characteristic which gives the case its importance, he believes,

Barron has written of the right of access : "In the area of communications we are on the verge of a more comprehensive and sensitive 235 idea of what freedom of expression should mean in a technological age,"

In the meantime, the effect of the BEM decision has been nullified by the Supreme Court's stay, BEM w ill either prove to be the important precedent Nicholas Johnson and others believe it could be, or it will be a very great defeat for CITIZENS and the c itiz e n p a r tic ip a tio n movement as w e ll.

CITIZENS main contribution to right.of access for controversial viewpoints rests with the BEM case to be argued before the Supreme Court

in the fall. The loss of this case would not in all likelihood end

CITIZENS efforts to aid the public to achieve a right of access to the media. This is an aim which remains a primary purpose of the organization.

233 Banzhaf y. Federal Communications Commission. 405 F. 2d 1082 (C.A.D.C 1968). 234 Personal interview w ith Jerome Barron. 235 Jerome Barron, "An Emerging First Amendment Right of Access to the Media?," 37 Geo. Wash. L. 487 (1969). CHAPTER V

ACCESS TO REGULATORY PROCESSES

A main purpose of the Citizens Communications Center has been to aid citizens to gain access to the decision-making and regulatory processes of the Federal Communications Commission. In fulfilling this purpose

CITIZENS has intervened in agency actions involving a guide for broadcasters in ascertaining community needs and interests, the renewal of station

licenses by comparative hearings, reimbursement of citizen groups for negotiations with station management, and various public hearings.

I. PRIMER ON ASCERTAINMENT OF COMMUNITY PROBLEie

On Tuesday, December 2, 1969, Commissioner Robert Bartley met with

members of the Federal Communications Bar Association, a private bar

consisting of nearly a thousand lawyers represt . ing various broadcast­

ing industry interests. Shortly before the meeting, CITIZENS learned

that the Commissioner planned to distribute, for the Industry's comments,

an FCC draft proposal for changing the community needs ascertainment ^ . . 236 standards.

A lbert Kramer, d irecto r of CITIZENS, and W illiam D. Wright of Black

Efforts for Soul in Television (BEST), attempted to gain entry to the

meeting, but were excluded by Commissioner Bartley who agreed to meet

Citizens Communications Center, "A Progress Report" (Washing­ ton, D.C.: Citizens Communications Center, March 15, 1970), p. 2. (Mimeo­ graphed) A lso personal interview w ith A lbert Kramer. 79 237 with them on the following Monday (December 8),

At the subsequent meeting Mr. Wright and Mr. Kramer were not provided with copies of the proposed Primer which had been given to the industry

lawyers the previous week, nor were they informed that the Primer had been

distributed. Upon learning from a reporter that the bar association mem­

bers had received copies of the Primer, Mr. Kramer called Commissioner

Bartley's office and was told that the omission was unintentional. There­

upon CITIZENS filed a protest to the Commission requesting that the public 238 be allowed to comment upon the proposed Primer.

On December 19, 1969, the FCC released a Notice of Inquiry which

stated that the Conmission was considering dealing with ascertainment of

community problems. According to the notice, the Federal Communications

Bar Association had requested clarification of the requirements pointing

to differences in interpretations by applicants, members of the bar asso- 239 elation and the Commission's staff.

Attached to the notice was a Primer, not the original draft, which,

according to the notice, set forth "commonly-raised questions" and the

interpretations which the Commission proposed to follow. The notice in­

vited interested parties to file comments on or before January 30,

^^Albert H. Kramer and W illiam D. Wright, "Memorandum to Commis­ sioners of the Federal Communications Commission Re Abuse of Commission's Informal Procedures" (Washington, D.C.: Citizens Communications Center, December 10, 1969), p. 1. (Mimeographed)

238ibid.. pp. 2-3.

239"Notice of Inquiry," Federal Communications Commission 69-1402 (Washington, D.C.: Federal Communications Commission, December 19, 1969). (Mime ogra phe d) See A ppendix. 80

1970.^^°

Acting on behalf of BEST, CITIZENS filed a forty-seven-page state­ ment of comments on the Primer. The statem ent complained of the ex

Parte processes used to develop the primer in which one interested party

(the industry) was allo»;ed to present its views without other interested parties being present or being apprized of these views. This allows the 241 views of the party who is heard to go unchallenged, the comments said.

The statement asked that the title of the Primer be changed from

"Ascertainment of Community P oblems" to "Ascertainment of Community

Needs" —the latter being broader and more inclusive. Further the

Center suggested that applicants be required to show that conmunity leaders selected to be interviewed are recognized by their respective groups as 242 their spokesman.

The commentary proposed that the needs of the primary area or city where the station is located be paramount, but that there should be a

presumption that an applicant is required to ascertain the needs of the

outlying areas served. It also suggested that the FCC develop standards

for determining the composition of the city of license and that a showing 243 of the composition should be required.

The division of responsibility for conducting interviews with

community leaders and the general public should not be allowed, CITIZENS

“ ‘’ib id . 241 "Comments of Black Efforts for Soul in Television In the Matter of Primer on Ascertainm ent of Community Problems by Broadcast A p p lican ts," Docket No. 18774, Filed with the Federal Communications Commission, January 20, 1970, p. 3. 242 243 Ibid.. pp. 6-11. Ibid., pp. 15-19. 81 argued, and though professional help could be utilized, the final respon­ sibility for dialogue with the public should be upon station management.

It was recommended that a meaningful ap p raisal of community needs be maintained during the entire license period with new surveys being con- 244 ducted within six months of filing each renewal application.

The statement suggested that a change in program format be supported by a survey of community needs. In addition, restoration of deleted portions of the original primer should require the broadcaster to list all suggestions and use reasonable standards of evaluating which are 245 major community needs.

Applicants should not be allowed to plead financial hardship as an excuse for not programming to meet community needs, CITIZENS argued, un­ less evidence of the financial status of the broadcast facility was , . . 246 provided.

The need for programming to stimulate solutions to community needs rather than merely provide information on needs and problems was suggested in the statement. It also urged that the Commission make explicit what it 247 meant by "substantial" programming to meet community needs.

According to a report issued by the Center, the Primer attracted

"voluminous comments." In addition to the statement on behalf of BEST, 248 CITIZENS aided other citizen and community groups in filing comments.

244 245 Ibid.. pp. 19, 20 and 23. Ibid.. pp. 28-32. 246 247 Ibid.. p. 35. Ibid., pp. 39-41. 248 Citizens Communications Center, Progress Report (Washington, D.C, Citizens Communications Center, May 1, 1971), p. ill. 82

On February 23, 1971, the FCC adopted the Primer on Ascertainment 249 of Community Problems by Broadcast A p p lican t. In the view point of

Mr. Kramer, the new Primer was less than "ideal" but was "significantly r 250 strengthened LsicJ by public participation."

Broadcasting magazine reported that the Primer was essentially similar to the draft, but that some changes reflected the pressure of citizens' groups. The adopted Primer says, for example, that an appli­ cation would be "defective" if it did not include consultation with representatives of a significant group. The draft said merely that the 251 application would be "subject to question."

Another change was the inclusion of a statement to the effect that the job of consultation with community leaders should be the responsibility of station management. The requirements of a showing of the composition

of a community and a report on programming Intended to deal with specific 252 problems in the area were adopted in the revised document.

Also included in the Primer were numerous references to "problems,

needs and interests" in place of the "needs and interests" of past

Commission directives. The obligation to serve areas outside the city of

license is also noted in the Primer along with the primary duty to serve 253 the problems of the major city.

249 See Primer in Appendix. 250 CITIZENS, Progress Report, op. cit., pp. lii-iv . 251 "Federal Communications Commission OK's primer for local •problem s'," B road castin g. IXXX (March 1, 1971), p. 33. 252 253 Ibid. Ibid. 83

At the time the Commission released the Primer, it also announced that it was considering applying the Primer only to new license applicants 254 and not to license renewals. CITIZENS stated its intention to participate in the FCC proceedings regarding this action to prevent "this regressive ,,255 s t e p ."

The immediate effect of the release of the Primer was to break a

"log-jam" of some ninety cases in which the ascertainment question was an issue. Applicants in hearing cases were given ninety days to amend 256 their applications to conform with the Primer.

The Primer is currently in use as a guide for bothnew and renewal applicants, but its continued use is tied to the adoption of new license renewal procedures which the Commission has been considering since February,

1971.^^^

The new procedures are part of the FCC's attempts to pacify broadcasters who feel that vague standards for license renewal make the licensees vul­ nerable to license challenges. Citizens groups, supported by the courts, believe that the FCC should promote higher standards and allow challenges 238 by competing applicants who can offer better service.

The Primer is only one facet of the very complicated issue of license

255 CITIZENS Progress Report. op. c it., p. iv. 256 Broadcasting, loc. c it.

"Renewal reforms," Broadcasting. LXXX (February 15, 1971), p. 7.

lurch toward tighter program control, Broadcasting, LXXX (February 22, 1971), pp. 28-30, 84 renewal, discussed in the following section, "Comparative Renewals."

CITIZENS has been actively involved in the Issue from the beginning and has acted to represent the interests of the public in all phases of license renewal policy-making.

I I . RENEWAL OF LICENSES BY COMPARATIVE HEARINGS

After three decades of routine television station license renewals,

the Federal Communications Commission revoked its first license on January

22, 1969, creating a furor in the television industry. The license of

WHDH-TV, Boston, was awarded to a competing applicant on the basis of media diversity. (WHDH-TV was owned by the Herald-Travelcr Company which 259 also had extensive newspaper, radio and cable TV interests In the area.)

Broadcasting magazine carried an editorial protesting:

Congress has become the broadcaster's only hope for a restora­ tion of order in an FCC that has clearly gone out of control. At the minimum, the broadcasters must seek an amendment to the Communi­ cations Act prohibiting the FCC from taking ad hoc actions that can lead to wholesale divestitures.260

In a speech before the 1969 annual convention of the National Associ­

ation of Broadcasters, President Vincent T. Wasilewski, proposed legisla- 261 tion to aid the industry. Later, testifying before the Senate Sub­

committee on Communications, he attacked the FCC action as being prohib-

259^^HDH. In c. , 16 Federal Conmnunicatlons Commission 2d. (1969).

^®®"Boston stake: $3 b illio n ," B roadcasting. IXXVII (February 3, 1969), p. 84. 261 Robert Lewis Shayon, "Who Will Cry Havoc?" The Saturday Review. LI I (June 28, 1969), p. 22. 85

Ited by the Communications Act of 1934.

The subcommittee's chairman, Senator John 0. Pastore (D.-R.I.), agreed with Wasilewski's plea that the licensee should not be "harassed" by new applicants if he had "lived up to the promise that he made at the 2 ^2 time he was granted the license."

Subsequently, on April 29, 1969, Pastore and nineteen other senators

sponsored a b ill to remove the broadcasters from the threat of harassment.

The bill. Senate bill 2004 (known as the Pastore b ill), provided that the

FCC could not accept applications for a television station license unless

it had first denied the renewal of the existing license.Eighty sim i- 265 lar bills were introduced in the House.

Senator Pastore cited the high cost of entering and competing in the

television field as reasons why licensees should be protected from the loss 266 of their investments.

In a speech Wasilewski urged Texas broadcasters to talk to their Con­

gressmen and Senators and "Urge them . . . to make it known to the leader-

U.S, Congress, Senate, Committee on Commerce, Review of Federal Communications Commission and Inquiry Into Crime and Violence on Television and a Proposed Study Thereof by the Surgeon General. Hearijigs before Sub­ committee on Communications, 91st Congress, 1st Session, March 12, 19, and 20, 1969 (Washington: Government Printing Office, 1969), p. 416.

263 Ibid.

^^^Senate Bill 2004. 91st Congress, 1st Session (1969). 265 Interview with Martin Kuhn, counsel for House Subcommittee on Power and Communications. 2 fifi Remarks by Senator John 0. Pastore on the Senate flo o r , "S. 2004-- Introduction of a b ill to modify procedures for renewal of Federal Communi­ cations Commission licenses," April 29, 1969. See Appendix. 86 ship of both the House and Senate that it is essential for the b ill to 267 be moved along as rapidly as possible."

A fact sheet was released by the NAB contending that more and more

"strike" (competing) applications were being filed against stations at renewal time and that S. 2004 was "urgently needed" to protect broad­ casters. Strike applicants were "claim jumpers," the sheet said, who sought to take over a bu sin ess that someone e ls e had b u ilt up "by the 2 68 sweat of his brow."

The initial Senate hearings on S.2004 were held August 5, 6 and 7,

1969, and were dominated by industry spokesmen. Only two persons were present to speak for citizen interests--Ben Kubaslk, director of the

National Citizens Committee for Broadcasting, and the Committee's general 269 counsel, Earle K. Moore.

The Citizens Communications Center which began operations in August,

1969, became involved in the fight against the Pastore bill when it under­ took a study of the legislation at the request of community groups who were concerned with S. 2004's potential effect on the quality of broadcasting

^^^Address by Vincent T. Wasilewski before the Texas Association of Broadcasters, Koko P alace, Lubbock, Texas, October 13, 1969. (Mimeo­ graphed)

^®®'*Fact Sheet: Reasons Why Legislation Should Be Enacted to Estab­ lish Orderly Procedures for Renewal of Broadcasting Licenses - (S. 2004, H.R. 10010 and Similar B ills)," (Washington: National Association of Broad­ casters, 1969), p. 1. See Appendix. 269 U.S. Congress, Senate, Committee on Commerce, Amend Communications Act of 1934. Hearings before Subcommittee on Communications on S. 2004, 91st Congress, 1st Session, August 5, 6, and 7, 1969 (Washington: Government Printing Office, 1969), pp. 122-159. 87 , 270 s e r v ic e s .

When Senator Pastore reopened hearings In December, 1969, CITIZENS director appeared as counsel for two witnesses from BEST (Black Efforts 271 for Soul in Television), who utilized the result of the Center's study.

Absalom F. Jordan, Jr., national chairman of BEST, testified that television does not serve the interests and needs of the black community 272 and that there is a lack of opportunity for black ownership.

"The blame for the blatant misuse of the public's airwaves clearly lies with the broadcasters," Jordan charged. "The blame for sanctioning

this misuse must be assigned to the Federal Communications Commission.

And now comes S. 2004 to assure the continuation of both the misuse and 273 the abuse of the public airwaves.

William D. Wright, coordinator of BEST, answered Pastore's reassur­ ances of protection for citizen rights in this statement: "The petition

to deny [license renewal] is inadequate, because there is no guarantee

that the Commission w ill even grant a hearing. Indeed the past history

shows a hostility rather than even a tolerance for citizen groups who 274 attempt to employ this device."

Substantial opposition to the bill led to a "cooling of interest"

270 Citizens Communications Center, Progress Report, May 1, 1971, p. iv.

^^^Ibid.

S. Congress, Senate, Committee on Commerce, Amend Communications Act of 1934, Hearings before Subcommittee on Communications on S. 2004, 91st Congress, 1st Session, December 1, 2, 3, 4, and 5, 1969 (Washington: Govern­ ment P rintin g O ffice, 1969), p. 601. 273 274 Ibid. Ibid.. p. 591. 88 in the measure by other senators who wanted to avoid being linked to a b ill 275 with overtones of racial discrimination. Senator Pastore who prided himself on his excellent civil rights record, was reportedly "taken aback" by charges that S. 2004 was a "racist bill" and preferred to let the bill 276 d ie.

Into th is s itu a tio n stepped the FCC's new chairman, Dean Burch, with a proposal for a new FCC p o lic y r u le . Under a head lin e, "Burch m iracle?".

Broadcasting reported on December 29, 1969;

I f Chairman Dean Burch has h is way--and odds are with him--FCC's 1970 regulatory year w ill open with breakthrough in station licensing policy to alleviate "strike" application chaos triggered by WHDH-TV Boston revocation case just a year ago . . . In 'circulation' among his colleagues is proposal to be considered week of Jan. 5 to implement substance of Burch testim ony before Pastore subcommittee on December 1. In giving qualified support to Pastore Bill (S-2004), Burch sug­ gested policy whereby applicant for renewal would get grant following comparative hearing if he makes adequate showing that his program service was substantially attuned to needs and interests of his area.

CITIZENS learned of the Burch "miracle" when the December 29th issu e of Broadcasting was delivered eight days late on January 5, 1970. Plans 278 were made immediately to block FCC action on the new policy.

On January 7, 1971, CITIZENS and BEST filed motions with the Court of

275 Interviews with Jack Blum, assistant counsel, Senate Anti-Trust Committee (also investigating broadcasting), and Robert Thorpe, administra­ tive assistant to Federal Communications Commission Commissioner Nicholas Johnson. 276 Personal interview with former Federal Communications Commission Commissioner Kenneth A. Cox.

277"Burch miracle?". Broadcasting, LXXVIII (December 29, 1969), p. 5.

^^®Citizens Communications Center y. Federal Communications Commission. Docket No. 24,221, United States District Court for the District of Columbia, "Memorandum of Law," p. 1. See Appendix 89

Appeals for a temporary restraining order and a preliminary injunction.

The temporary restraining order was denied that same day, but the FCC 279 failed to act on the new policy at its weekly meeting.

In an article in the Washington Post, columnist Jack Anderson reported on the p olicy and commented th at "Burch ordered his aides to find a way to do through the FCC what the TV industry has not been able 280 to p u ll o ff on Capitol H ill."

CITIZENS director Albert Kramer, said in a rare press release:

"Under ordinary circumstances, the Chairman of a Senate subcommittee

that is presently considering legislation would object to an agency's 281 taking action that undercuts the legislation."

Senator Pastore made no objection, and in an Interview with newsmen

indicated that it was up to the full committee to decide the bill's future.

The committee counsel, Nicholas Zapple, hinted that the bill might die in

com m. . ittee. . 282

On January 9, 1970, BEST and CITIZENS filed with the FCC a petition

for rule making urging the Commission to deal with comparative hearings in

a formal rule-making proceeding, after a hearing which would give "inter­

ested persons" a chance to testify. The rule proposed by CITIZENS would

279 Ibid.. "Brief for Petitioners," p. 18. 280 Jack Anderson, "Dean Burch's Memo," The Washington Post. January 11, 1970. 281 Press Release, Citizens Communications Center, January 9, 1970. See Appendix. 282 Telephone interview with Nicholas Zapple, counsel for Senate Subcommittee on Communications. 90 have required that applicants be considered on such factors as div­ ersification of ownership in the mass media, local ownership and manage­ ment, proposed programming se r v ic e s, ascertainm ent of community needs, 283 and employment of m inority groups.

In a public notice, released January 15, the FCC, over the dissent of Commissioner Nicholas Johnson, adopted the chairman's proposed policy 284 rule. On January 16, with Johnson again dissenting, the Commission 285 denied the petition for rule making submitted by CITIZENS and BEST.

In an effort to persuade the FCC to reverse its decision, CITIZENS and BEST filed petitions for reconsideration and for repeal of the Policy

Statement and a petition for reconsideration of petitioners' alternate 286 policy, rejected by the agency on January 16.

Two applicants for television channels, Hampton Roads Television

Corporation and Community Broadcasting of Boston, Inc., also entered 287 the proceedings and sought to have the FCC reconsider its policy.

283 "Petition for Rule Making," filed with the Federal Communications Commission January 9, 1970, by BEST, CITIZENS, William D. Wright and A lbert Kramer. See Appendix. 284 "Policy Statement on Comparative Hearings Involving Regular Renewal Applicants," Federal Communications Commission 70-62, January 15, 1970. See Appendix. 285 "Memorandum Opinion and Order," 21 Federal Communications Commission 2d 355 (1970). 286 Citizens Communications Center. BEST, et a l. y. Federal Commu­ nications Commission. Docket No. 24,471, United States Court of Appeals for the District of Columbia Circuit, "Petition for Review of an Order of the Federal Communications Commission and Appeal from the United States District Court for the D is tr ic t of Columbia," f ile d November 2, 1970, p. 19. 287 Personal interview w ith A lbert Kramer. 91

Finally, on July 21, 1971, the FCC denied all petitions over Comm- 288 issioner Johnson's lone dissent. CITIZENS, BEST and the two television 289 corporations then filed petitions for review in the Circuit Court of Appeals.

Before the court, William Dobrovir for CITIZENS and BEST and Edward

P. Morgan for the two corporations argued against the Policy Statement's assertion that the examiner should terminate a comparative hearing between two or more applicants if he determined that the incumbent licensee had provided "substantial" service. The policy would prevent challengers from showing their superior quality and effectively fence minority groups out 290 of broadcast media ownership, the attorneys told the court.

"If this statement stands, there w ill be no competing applications,"

Mr. Morgan stated. He estimated that competing applications cost would-be challengers $250,000 and said that, in the face of the Policy Statement, 291 no challenger would be willing to invest such an amount.

A year and a half after CITIZENS and BEST had first appealed to the courts for a temporary restraining order, the United States Circuit Court

of Appeals for the District of Columbia found for the petitioners. On 292 June 11, 1971, Judge J. Skelly Wright handed down the majority decision.

288 "Memorandum Opinion and Order," 24 Federal Communications Commis­ sion 2d 383 (1970). 289 CITIZENS. BEST, et aL y. Federal Communications Commission, l o c . c i t . 290 "A day in court: comparative hearings," Broadcasting. LXXX (March 22, 1971),p. 65.

^^^Ibid., p. 66. 292 CITIZENS, BEST, et al y. Federal Communications Commission, "Op1onion of Court." See Appendix. 92

The court found the FCC's Policy Statement violated the Communications

Act of 1934 "as interpreted by both the Supreme Court and this court."

The Statement denied competing applicants the full hearing "promised 293 them by Section 309(e) of the [Communications] Act the court said."

"[l]nstead of stability" said the opinion, "the Policy Statement has produced rigor mortis. For over a year now, since the Policy State­ ment substantially limited a challenger's right to a full comparative hearing on the merits of his own application, not a single renewal 294 challenge has been filed."

The court ordered that the Policy Statement could not be applied to comparative renewal hearings and that all hearings in which the policy 295 had been applied must be designated for rehearing.

The same issue of Broadcasting which reported the court decision carried an editorial entitled "Life or death?" which accused the Court

of Appeals with issuing "a new prescription for anarchy in broadcast 1 z .f296 regulation."

"The remedy," says the editorial, "must now be found in Congress.

It is the basic law that needs revision to get the courts out of the

business of writing broadcast regulation . . . Nothing less than survival ,297 is at issue.

CITIZENS director, Albert Kramer, saw the court decision as "a nice

293 294 Ibid., pp. 8 and 23. Ibid., p. 28. 295 Ibid. , p. 29. 296 "Life or death?" Broadcasting, LXXX (June 21, 1971), p. 108, 297 Ibid. 93 victory" but not the end of the battle. He anticipated that broadcasters 9QQ would "go screaming to Congress" for legislative relief.

He noted in an addendum to the Center's Progress Report that a "lead­ ing attorney for one of the networks [had] privately characterized the decision as the greatest setback the broadcasting industry has ever taken 299 in the courts."

"We prefer to think of our work in this case," he said, "as resulting

in a great leap forward for the rights of citizen and community groups.

The National Association of Broadcasters within three months had set

up a task force dedicated to establishing strategy and activating "broad­ casters in a campaign to persuade Congress to legislate protection for

broadcast licensees at renewal time, particularly from competing applicants

for their facilities.

However, by February, 1972, broadcasters were acknowledging that sup­

port for such a b ill was meeting with lukewarm support in Congress. Sena­

tor Pastore was avoiding the license-renewal issue, he said, because it

was one of the main issues used against him in his re-election campaign.

Representative Harley 0. Staggers (D.-W,Va.), chairman of the House Com-

merce Committee, gave the excuse of a full calendar of committee work.

^^®"Renewal applicants: fair game again?" Broadcasting. LXXX (June 21, 1971), p. 29.

^^^Miraeographed statement Issued w ith CITIZENS Progress Report. See Appendix.

^°*^Ibid. 301 "Rallying around the renewal flag," Broadcasting. LXXXI (September 13, 1971), p. 33.

^^^"Lukewarm support on lic e n s e renew al," B roadcasting. IXXXII (Feb­ ruary 14, 1972), pp. 30-31. 94

A b ill (S, 2993) introduced by Senator Frank E. Moss (D.-Utah) would have assured renewal to a licensee who had made a good-faith effort to as­ certain and meet community needs and who had operated within the provisions of the law and Commission regulations. However, since the subcommittee chairman. Senator Pastore, would not hold hearings on the b ill, it seemed destined to die in committee. Pastore was said to be waiting for either 303 the Administration or the Commission to propose legislation.

Chariraan Dean Burch of the FCC testified before the Communications

Subcommittee that there would be "sharp cleavage" within the Commission on the issue of license-renewal legislation. He urged the Senators to hold hearings on the is su e .

In the meantime, the Court of Appeals had ruled upon a petition of

Hampton Roads Television Corporation and decided that the Commission had erred in its application of the court's decision nullifying the Policy 305 Statem ent,

Instead of redesignating all comparative renewal cases to which the

Policy Statement had been applied for rehearing, the Commission amended

the hearing orders by deleting all references to the Statement. This,

in effect, denied applicants the right to amend their applications which

they could have done if the cases had been redesignated. Nine renewal applicants were affected by the court's ruling on the Hampton Roads peti-

^O^Ibld.. p. 31.

^^^Ibld. . p. 30.

^^^"Court stirs up renewal stew again," Broadcasting LXXXII (Jan­ uary 31, 1972), p. 37. 95 t l o n . ^ 0 6

A second petition filed by CITIZENS and BEST sought substantiation from the court that it intended the Commission to institute a rule-making proceeding to determine the factors to be considered in the licensing period and asked the court to order the Commission to institute such pro- .. 307 ceed ln gs.

The Commission claimed that its notice of inquiry was in response to

the court's order. The inquiry invites comment on the definition of the term"superior performance" on the part of the broadcaster. The court's decision specified that a licensee with superior performance was entitled 308 to "a plus of major significance."

The CITIZENS-BEST pleading cites the criteria suggested by the court

for consideration in a comparative hearing, including the reinvestment of profits in licensee's station and diversification of media ownership.

These are ignored or evaded in the further notice of inquiry, the petition

s ta. te. s . 309

Commenting on the court a ctio n in in v a lid a tin g the P olicy Statement,

CITIZENS and BEST claim, "[l]t declared illegal a policy that effectively

bars competing applications and ordered the commission to conduct a review

of its policies so as to assure competition and stability in broadcasting.

The commission has failed to comply with this mandate

Pending the outcome of the appeal by CITIZENS and BEST, the comparative

renewal issue has resulted in certain advances for the rights of citizens

306lbid. 307ibid. 308%^_

^°*Ibid. ^^^Ibid. 96 to participate in decision-making proceedings. For the first time a c iti­ zens group has successfully challenged the authority of the Commission to act on an issue affecting the quality of broadcasting without prior public 311 consultation.

Commenting on the license-renewal issue, Albert Kramer remarked that a "functional adversary system" was evolving from citizen participation in the process of government. The citizen groups, he said,"are not in the decision-making process, but they are making inroads on the power to in- 312 fluence decision--and that's the name of the game,"

I I I . REIMBURSEMENT OF EXPENSES FOR CHALLENGERS

Reimbursement of citizens groups for expenses incurred in challenging a license renewal became the issue of a CITIZENS court appeal from an order of the Federal Communications Commission.

The Office of Communication of the United Church of Christ had assisted citizens groups to prepare and file a petition to deny the license renewal

of KTAL-TV, Texarkana, Texas, on January 10, 1969. During subsequent nego­

tiations with KCMC, Inc. which owns KTAL-TV, the licensee agreed to improve

service to the local community and to reimburse the Office of Communication

for expenses incurred while assisting local groups.313

^^^CITIZENS, Progress Report. May 1, 1971, p. vi. 312 "Signs of changing times in renewals," Broadcasting, LXXX (May 17, 1971), p. 35. 313 O ffice of Communication of the United Church of C hrist v^. Federal Communications Commission. Docket No. 24,672 in the United States Court of Appeals for the District of Columbia Circuit, "Brief for Petitioner," filed October 1, 1970, p. 2. 97

After withdrawal of the petition to deny by the citizens groups, the

FCC renewed the license of KTAL-TV on July 29, 1969, with the finding that the amendment to the station's renewal application (negotiated by the local 314 groups) served the public interest, convenience and necessity.

Subsequently, on October 1, 1969, Earle K. Moore, counsel for the

Office of Communication, wrote the Commission requesting approval of the reimbursement by KCMC, Inc., for $15,137 in expenses incurred by the Office 315 in assisting the petitioning groups.

On September 21, 1970, the FCC issued a Memorandum Opinion and Order which denied perm ission for the payment. Chairman Dean Burch and Commis­ sioners Nicholas Johnson and Kenneth A. Cox dissented from the majority , , 316 opinion.

Chairman Burch's d isse n t sta ted that the d ecisio n was c le a r ly d is ­ criminatory. The potential for abuse, he said, was no greater in the peti-

tion-to-deny situation than in a variety of situations where reimbursement

Is permitted. Adequate guidelines and scrutiny by the Review Board (of

the FCC)could guard against possible abuse, herecommended. 317

In the wake of the FCC decision, CITIZENS was asked to provide legal

counsel for the Office of Communication and in that capacity filed a peti­

tion asking the Court of Appeals to review the Commission order. The brief

for petitioner noted that the FCC had allowed the reimbursement of a com-

314ibid.. p. 3. ^^^Ibid.. p. 4.

^^^Ib ld . . p. 7. A lso: "Memorandum Opinion and Order In Re KCMC, Inc, For Approval of Agreement by Television Station KTAL-TV, Texarkana, Texas," 25 Federal Communications Commission 2d 603 (1970).

3 l7 lb id . 98 peting applicant for a frequency in return for the challenger's withdrawal from the renewal proceedings and that there were other incidents of reim­ bursement precedents.

CITIZENS cited Commission arguments that there was no necessity for reimbursement, that there was a possibility of abuse because of overpay­ ment, and that the payment Itself could become an extraneous consideration 319 in the settlement of disputes.

CITIZENS argued that there was citizen participation in only two and seven-tenths per cent of all license renewal actions during an eight- month period termed representative by the FCC in its ruling. This, said petitioner. Indicated the possibility that citizen resources were lacking for full participation and involvement, and suggested that payment of ex­ penses were critical to citizen participation in the regulatory processes.

Furthermore, the brief stated, legal assistance for all but a few of the cases was provided without cost by two organizations, CITIZENS and United 320 Church o f C hrist.

The pleading called attention to the dissent of the Commission chair­ man and his statements that abuses of reimbursement could be avoided by 321 adequate supervision and g u id elin es.

The Court of Appeals was asked to order the Commission to approve the reimbursement agreement between the Office of Communication and the licensee

Ibid. , pp. 22-28. Cited are National Broadcasting Company (KNBC). 24 Federal Communications Commission 2d 218 (1970); Post-Newsweek Stations (WPLG). 26 Federal Communications Commission 2d (November 16, 1970); Grand Broadcasting Company, 5 P. & F, Radio Reg. 2d 527 (1965); Great River Broad­ casting. Inc.., 16 P. &.F. Radio Reg. 669 (1969).

^^^Ibid.. p. 43. ^^^Ibid., pp. 48-49. Ibid.. p. 7. 99 of KTAL-TV and to declare the FCC'a rule denying relmburaement to peti- 322 tlonera to be contrary to law.

While the court studied the petition, the Connnission denied compensa­

tion in two other cases. Early in August, 1971, the FCC refused to allow

the licensee of WSNT-AM, Sandersville, Ga. (another CITIZENS case), to pay the expenses incurred by black organizations challenging the station's

license renewal. On August 25, 1971, the Commissionmtifled GCC Communica­

tions of Atlanta, Inc., purchaser of WGKA-AM-FM, Atlanta, that it could not pay a citizen group $2,000 a year for three years for expenses resulting 323 from the group's opposition to the sale of WGKA-AM-FM.

At the same time the Commission announced that it would institute an

Inquiry into reimbursements to determine whether they should be allowed

and if so, whether there should be a limitation on the amount of corapen- 324 sa tio n .

Before the FCC could issue a policy on reimbursements, the court

handed down its decision. A hree-judge panel reversed the Commission's

decision in the KTAL-TV case and ruled that the regulatory agency could not 325 impose a flat ban on all reimbursements.

Any voluntary payment that encourages the participation of such groups

as the United Church of Christ is in keeping with the public interest, said

322lb id . . p. 61. 323 "Federal Communications Commission cuts in on citizen-group com­ pensation," Broadcasting, UCXXI (August 30, 1971), p. 32.

^^^"Flat ban on reimbursements vetoed," Broadcasting, LKXXII (April 3, 1972), p. 117. 100

Chief Judge David L. Bazelon in the majority decision. The judges inter­ preted the Communications Act as providing for case-by-case scrutiny of reimbursements to avoid abuses, but stated that Congress did not mandate an absolute bar against reimbursement.

The court ordered the Commission to review the case to determine whether the Office of Communication's submitted expenses were legitimate . ^ 327 and prudent.

It remains for future FCC license renewal actions to prove whether the possibility of reimbursement will increase citizen participation in regu­ latory processes, but the court decision may result in many more such settlements.

IV. OTHER ACTIVITIES OF THE CENTER

P a r tic ip a tio n in O ffice of Management and Budget Hearing

In September, 1970, the Federal Communications Commission initiated an inquiry into conglomerate ownership of broadcast facilities. In order

to issue a questionnaire to broadcast owners, the FCC first had to secure

approval from the O ffice of Management and Budget. The O ffice p asses on

all forms adopted by federal regulatory agencies and receives the counsel 328 of advisory committees from each major industry.

According to CITIZENS, over the years the Advisory Councils had diluted

the power of the federal agencies to gather information by advising the

Office that the requested data was "unnecessary, unduly burdensome, or

^^^Ibid. ^^^Ibld. 328 CITIZENS, Progress Report, May 1, 1971, p. vii. 101 329 repetitious."

When the FCC subm itted i t s q u estion n aire, an O ffice of Management and

Budget official scheduled a meeting with the Committee on the Comnunications

Industry, its advisory group. CITIZENS was informed of the meeting by the

Public Interest Research Group and attended in an attempt to "prevent indus- 3 30 try representatives from watering down the questionnaire."

In CITIZENS assessment, their participation was valuable because it prevented possible changes to the questionnaire by the industry council.

The end result was that the form emerged "relatively unscathed." It also marked the f i r s t time that O ffice of Management and Budget m eetings had 3 \1 been open to the public.

Since that time, CITIZENS has monitored the activities of the Committee

on the Communications Industry and O ffice of Management and Budget and has

attempted to participate In any meetings of significance to citizen groups. 3)2

CATV Panel

In March, 1971, CITIZENS took part in hearings on CATV (cable tele­

vision) sponsored by the Federal Communications Commission. The hearings 333 were designed to assist the FCC in formulating regulations for CATV.

Approximately sixty-five representatives of industry, educational and

public television, federal, state and municipal government, the communica­

tions bar, the American Civil Liberties Union, Black Efforts for Soul in

^^^ Ib id . ^^° I b id .. p. v i i . 331ibid. ^^^Ibid. 333 "Where a ll that talk about cable may lead," Broadcasting, IXXX (March 29, 1971), pp. 80-86. 102

T elev isio n , Ford Foundation, the O ffice of Communication of the U nited

Church of Christ and CITIZENS d ir e c to r , A lbert Kramer, took part in the 334 hearings.

Mr. Kramer's testimony before the FCC stressed the "necessity of assuring adequate channel capacity to ensure access to any citizen group 335 desiring it."

Summer Study Group

In line with its policy of monitoring the regulatory processes of the FCC, CITIZENS organized and co-directed a summer study of the

Commission by law students from various parts of the country. The study was funded by special grants from the Charles F. Kettering Foundation, the

National Citizens Committee for Broadcasting, Consumers Union, Boston College

Law School, the Robert F. Kennedy Memorial, and the Children's Foundation.

In addition to investigating the FCC, the students researched and drafted a guide to citizen access to the FCC, as yet unpublished, A guide to equal opportunity employment in broadcasting was researched, but 337 lack of adequate staff has prevented the material from being finalized.

The study did result in the unearthing of facts which led to CITIZENS

challenge to the Capitol Cities Broadcasting Corporation's purchase of

Triangle Publications, Inc.’s broadcast holdings. This case resulted in

^^^Ib id . 335 CITIZENS, Progress Report. May 1, 1971, p. x. 336 Ib id . . pp. ix -x . 337 Personal in terview w ith A lb ert Kramer. 103 338 an unprecedented m illio n d o lla r programming p roject for m inority groups.

ACT

CITIZENS also assisted Action for Children's Television (ACT) which is concerned with excessive commercialism and violence in children's programming. In February, 1970, ACT filed a proposal with the FCC to ban 339 advertising from children's television programs.

CITIZENS consulted with ACT on various occasions and agreed to

"provide guidance to any citizen desiring to file comments on the propo­ sal." In this capacity, the Center assisted in the filing of "dozens of sets of comments" and provided additional services to ACT in connection 340 with these filings.

338 This case is described in Chapter III, Part III, supra. 339 Personal interview w ith A lbert Kramer. 340 CITIZENS, P rogress R eport, op . c it., May 1, 1971, p. ix. CHAPTER VI

SUMMARY AND CONCLUSIONS

I. SUMMARY

In summarizing the achievements of the Citizens Communications

Center, i t must be borne in mind that th is organization was the f i r s t public interest communications law center in this country. Founded in August,

1969, it has achieved phenomenal growth in less than three years.

CITIZENS has expanded from a one-attorney organization into a four- lawyer Center with a resulting increase in service to the public. Its funding has grown from an initial $50,000 grant to a recent Ford Found­ ation gift of $400,000.

By comparison, the United Church of Christ received only $160,000 from Ford for a two-year program to combat racial discrimination in broadcasting. The size of the Ford grant to CITIZENS indicates both recog­ nition for the achievements of the Center and an acknowledgment of the need for aid to citizens in the communications field.

Although CITIZENS name has not always figured prominently in the accounts of citizen actions, the Center's resources, assistance and legal representation have made possible important advances in broadcast access and regu lation .

Major Achievements

In terms of major, precedent-setting accomplishments the Citizens

Communications Center can point to several cases in which it has made a 105 contribution of substantial merit. Four of these cases have been in the area of access for minority groups, two in access for controversial issues and two in access to regulatory processes.

The criteria for designating these accomplishments as major achieve­ ments lie in the value of the case in establishing a precedent for citizen access or pioneering a new technique to be used In citizen challenges or negotiations.

Minority Programming. The Capital Cities Broadcasting Company nego­ tiations were the first of their kind and were unique in several respects.

In the petition filed against the sale of Triangle Publications’ broad­ casting empire to Capital Cities the parties of interest were CITIZENS and members of a law study group, some of whose members happened to be from cities involved in the sale.

The FCC could presumably have declined to accept the petition on the grounds that the parties did not represent the citizens of the concerned cities (Philadelphia; Fresno, California; and New Haven, Connecticut).

The Commission, however, took no such action which left the door open for similar petitions by interested, individual citizens.

In this case for the first time, the broadcaster initiated negotiations without being contacted by the petitioners. The broadcaster used his resources to push the negotiations through to a successful conclusion.

Two consultants hired to survey minority group problems in the three cities were paid by the broadcaster, and the expenses of minority group representatives brought to Washington, D.C., for the final negotiations were also taken care of by Capital Cities. 106

The most startling aspect of the settlement was the unprecedented size of the fund to be devoted to minority group prograoming. Never before and never since has an amount approaching one million dollars in three years been set aside for such a project. That CITIZENS could nego­ tiate such a settlement speaks well for Director Kramer's abilities, but it also reflects the broadcaster's growing awareness of his responsibility to the community and the knowledge that citizen groups have the necessary legal skill to block a transaction they feel is not in the public interest.

Capital Cities' transaction, like most station transfers, was based upon FCC approval of the purchase within a certain time lim it. This deadline gave the petitioners added leverage because the broadcaster knew

that opposition from CITIZENS might result in lengthy proceedings which would result in the seller withdrawing from the sale.

The Capital Cities strategy has already been utilized successfully

by citizen groups in the opposition to the sale of Time-Life, Inc.'s holdings to McGraw-Hill, Inc. In the sale of KÂBL-AM-FM, Oakland-San

Francisco, citizen groups were contacted by the purchaser, Starr Broad­

casting Corporation, and two extensive agreements were worked out without

a petition being filed. The latter case demonstrates a growing awareness

of citizen strength on the part of broadcasters--an awareness fostered in

part by CITIZENS successes.

Educational Television. The Alabama Educational Television Commission's

license renewals were challenged fay three individual citizens and two

representatives of Black Media Producers. The challengers did not claim to

represent community groups but challenged the renewals because of alleged

r a c ia l d iscrim in ation in programming and employment. 107

An indication of the FCC a reluctance to hold hearings lies in the fact that it took a year and a half for the Commission to reach a decision designating the renewal for hearing. Sources inside the FCC indicated that it was only fear that the Court of Appeals would overrule the Commission which prodded the FCC into agreeing to hearings.

The case is a very sensitive one in that it involves federal regu­ lation of a state-owned network and brings up the delicate states-rights question. It is also politically explosive since the Presidentially- appointed Commission is predominantly Republican, and the present Admini­

stration faces a coming election in which Southern votes will be an im­ portant factor.

Whether or not the AETC hearings lead to revocation of the network's

licneses, it has already resulted in the filing of a proposal with the FCC

for a scertain in g the black community's programming needs and Increased

hiring of blacks. It is also the first time an educational station's

license renewal has been designated for hearing, and the first time state-

owned stations have had to account to the FCC for their ascertainment of

community needs and problems.

Top-Fifty Markets Policy. The purchase of Time-Life, Inc.'s holdings

by McGraw-Hill, Inc., was similar to the Capital Cities transaction in

that it involved the purchase of three television stations in top-fifty

market areas plus two additional stations. In this negotiation the pur­

chaser did not make a showing of compelling public interest (such as

C apital C it ie s ’ m illio n d o lla r m inority programming p r o je c t), and the

citizen groups threatened a court appeal which might have tied up the

transaction in litigation causing the seller to withdraw from the sale. 108

Even though the FCC had approved the sale contrary to its previous p o lic y of two t o p - f if t y markets s ta tio n s per owner, McGraw-Hill agreed to buy only two top-fifty markets stations rather than jeopardize the whole sale. The McGraw-Hill settlement represents the first time citizens have enforced an FCC policy in the face of the Commission's own apathy,

Besides enforcing the top-fifty markets policy, the agreement serves notice on the industry that the citizen groups have considerable staying power in the negotiating situation. The McGraw-Hill negotiations stretched from September, 1971, to May, 1972, before the publishing company capi­ tulated to citizen group demands. Time was on the side of the minority groups opposing the sale. While the citizen groups had unlimited time,

McGraw-Hill had a deadline of April 12, 1972, (later extended to May 1, 1972) by which to complete the transaction.

The precedent set by the McGraw-Hill negotiations was said by Broad­ casting magazine to have ushered in a new era in citizen participation 341 movement because of i t s impact on the broadcast regulatory processes.

Right of Reply. In aiding a group of U.S. Senators to obtain broadcast time for views opposing Administration policy, CITIZENS helped to establish the principal that a right of reply to Presidential addresses, while not absolute, does exist. The FCC decided that a reply to every Presidential speech was not required but that the right of reply was necessary at some time--a matter which it left to the broadcaster's discretion.

To the party out of power or to bi-partisan groups who differ with

341 "McGraw-Hill sets record for concessions to minorities," Broadcasting. LXXXII (May 15, 1972), p. 25. 109

Administration views, this decision insures that their viewpoints cannot be totally shut out of the media regardless of how unpopular or controversial they may be.

The decision also counteracts a growing tendency by the Administration to discourage criticism of its policies by the media. In this climate,

the right of reply becomes extremely important to the Administration's

opponents.

Access to Advertising Time. The District of Columbia Circuit Court

of Appeals' decision, which said that broadcasters could not refuse to

sell advertising time for editorial advertising, was an importnat step

towards a First Amendment right of access to the broadcast media. How­

ever, before the FCC could implement the decision, the Supreme Court

granted a stay of the lower court's decision and agreed to review the

Business Executives' Move for Vietnam Peace (BEM) case during the 1972-73

sessio n .

In "An Emerging First Amendment Right of Access to the Media," Jerome

Barron argues that the legal framework for citizen access already exists

in the equal time and fa irn ess p rovision of S ection 315 of the Communica­

tions Act. He interprets the Act's injunction to broadcasters "to afford

reasonable opportunity for the discussion of conflicting views" to be

more than a right to respond to an issue on which the station has presented . 342 one view point,

Barron believes the court must read the First Amendment to require

^‘^^Jerome A. Barron, "An Emerging F ir s t Amendment R ight of A ccess To the Media," 37 Geo. Wash. L. Rev. 487 (1969). 110 opportunity for expression of ideas. He sees the area of communications

law as standing "on the verge of a more comprehensive and sensitive idea 343 of what freedom of expression should mean in a technological age."

If the Supreme Court upholds the BEM decision, it w ill be moving in

the direction which Barron indicates in his article--toward a right of

access to the media. BEM w ill no. only guarantee the right of access to

advertising time, but it will set the stage for a case to decide whether

citizens should also be allowed to buy programming time if they so desire.

As CITIZENS director, Albert Kramer, has said, "If United States Steel can, 344 why can't United States Senators?"

Access to Ownership. The system of comparative hearings for license

renewals was threatened with extinction by the Policy Statement adopted

by the FCC. The policy would have resulted in broadcasters holding their

licenses virtually lu perpetuum. Competing applicants would not have been

given a chance to show possible superior service until the licensee had

been denied a renewal by the FCC. Past Commission policy was such that

a license had never been denied by the FCC for reasons of failure to serve

the public interest, convenience or necessity.

All citizens, but especially minority groups who presently own only a

small percentage of the country's broadcast facilities, would have been

frozen out of the broadcasting field by the Commission's policy. According

to law professor John F. Banzhaf, Jr., such a policy would have denied

"freedom of effective speech of every person in the country who was not

343ibld.

344pej-sonal interview with Albert Kramer. I l l around and did not apply for a broadcasting license 10, 20 or 30 years a g o ." 3 «

CITIZENS appeal to the court marked the first time that a citizen group had challenged the authority of the Commission to act on an issue affecting the quality of broadcast service without holding public hear­ ings. The decision did more than keep the comparative renewal system operational. It placed the Circuit Court of Appeals in a position to oversee the Commission's performance. When the Commission did not ful­ fill the terms of the court's decision, an appeal to the court brought an order for the FCC to Immediately comply and designate for hearing those cases in which it had not obeyed the court's instructions.

The court is also being asked to rule on the FCC's "Notice of Public

Inquiry into Substantial Service" and whether this fu lfills the court's injunction to institute public hearings on a rule-making procedure for a comparative renewal policy. By this procedure CITIZENS is insuring the fullest possible participation by the public in the decision-making processes.

Right to Reimburaement of Expenses. Representing the Office of Com­ munication of the United Church of Christ, CITIZENS won a decision from the District of Columbia Circuit Court of Appeals allowing reimbursement to citizen groups for expenses incurred in challenging license renewals.

In the opinion of CITIZENS, the right to reimbursement of expenses w ill encourage more members of the p u b lic, e s p e c ia lly m inority groups

■ ^ U.S. Congress, Senate, Amend Communications Act of 1934. Hearings b efore the Communications Subcommittee of the Committee on Commerce, U.S. Senate, 91st Congress, 1st Session, on S. bill 2004, December 1, 2, 3, 4, and 5, 1969. (Washington; Government Printing Office, 1969), p. 656. 112 lacking In financial resources, to attempt license renewal challenges.

Reimbursement will also lift some of the financial burden from public

Interest organizations, such as CITIZENS and the United Church of Christ.

These groups have generally paid their own expenses when assisting citizen groups and will not be eligible for compensation.

Although reimbursement could lead to a proliferation of license re­ newal challenges, the court's notice that negotiation expenses should be reasonable and prudent should serve as warning against casually undertaken challenges.

Reimbursement could also have the effect of encouraging publie-interest

law firms not now engaged in communications law practice to enter that

field. It should also encourage broadcasters to reach agreements with

citizen groups more quickly to decrease the amount of reimbursement they w ill have to pay.

Waiver-Negotiate Strategy. In assisting the Office of Communication

of the United Church of Christ and Atlanta's black coalition in challenges

to the renewal of all Atlanta broadcasting licenses, CITIZENS evolved the

"waiver-negotiate" strategy. This strategy consists of the citizen group

obtaining a waiver of the FCC's deadline on petitions to deny the station's

license renewal. During the usual thirty-day extension of the deadline,

the s ta tio n and community group n e g o tia te the group's com plaints.

By creating pressure on the broadcaster to settle his differences

with the group and avoid a possible hearing on his license renewal, the

strategy has proved to be a useful technique for citizen groups. Besides

the Atlanta negotiations, the strategy has been employed by numerous

other citizen groups with equal effectiveness. 113

Minor Achievements

In some cases the Center has achieved only a partial victory or has set no new precedent but has successfully demonstrated the Center's tech­ niques. Four of these minor achievements are described in the following pages.

Racial Discrimination in Programming. Although the FCC denied the complaint of the Back Alley Theatre group, who complained of a Washington,

D.C., station's discrimination against them, the Commission's opinion was important to minority groups. It stated that isolated instances of pro­ gramming decisions based on racial factors could be grounds for disci­ plinary action against a licensee.

This statement represented a new concession by the FCC and could be valuable to groups making complaints against broadcasters. It also pro­ vides a strong argument for appeals from unfavorable FCC decisions since

the court frequently relies on past Commission rulings in forming its

opinion.

Rural Black Challenge. In the case of a black community group in

Sandersville, Georgia, which complained of discrimination in programming

and news coverage, the FCC granted a hearing on the license renewal--one

of the few times it has done so on a citizen complaint of discrimination.

Although finally settled by negotiation, the affair was significant

because for the first time a rural black group in the South successfully

negotiated better programming and news coverage with a broadcaster. The

case serves notice on broadcasters that not even small stations can dis­

regard ascertainment of community needs.

Ascertainment of Community Needs. The Center successfully intruded 114 itself into an internal FCC matter to protect the public interest when it intervened to provide for public comment on the Primer of Ascertainment of Community Problems by BroadcastersThe Primer was important to citizen groups because license renewals would be made on its guidelines.

CITIZENS insured that the public would have a voice in determining those guidelines.

Actions such as this make CITIZENS interest in and monitoring of the Commission more apparent and help to insure that the public interest w ill be considered by the FCC if only because of its awareness of being watched.

O ffice of Management and Budget M eeting. CITIZENS p a rticip a tio n in the meeting held by an official of the Office of Management and Budget and the industry-composed Advisory Council represented the first time that such a meeting had been open to the public. Representation of the public at even obscure governmental meetings helps to insure that detrimental decisions affecting public interest are not made without citizen partici­ pation.

Aid to Citizens. The Center has aided innumerable community groups in filing complaints and challenges to license renewals. The results in terms of the study may not have been precedent-setting, but represent a worthwhile contribution to citizen participation in broadcasting.

In addition the Center has provided information to citizen groups and has served as a research and resource center for the public. It has filled a void which existed prior to its creation as the first public interest law

346gee Appendix. 115 cen ter.

I I . CONCLUSIONS

As with most organizations, the Citizens Communications Center is not without its problems--problems which for the most part are inherent in the nature of the organization and its work.

Problems

As a non-profit organization with limited funding, the Center has had a work overload almost sin ce i t s founding. Six and seven days and nights of work a week have not been unusual for the Center's lawyers. The addition of three lawyers to the staff has failed to alleviate the problem since the work load has increased accordingly.

Obviously this is a situation which cannot be allowed to continue in­ definitely. In some instances, as Kramer is aware, insufficient lawyer-time to prepare cases adequately may have contributed to unfavorable decisions.

Kramer senses the need for an adjustment in the Center's work load and is currently seeking new ways of implementing the Center's mission--perhaps by delegating the more routine legal tasks to citizen groups and their local attorneys.

In re-examining its position and seeking new ways to serve the public, the Center hopes to free its attorneys to make more important contributions to the cause of citizen participation in broadcasting.

Although the Center has enjoyed excellent relations with minority groups in the past, both black and chicano, a discordant note was struck in the recent McGraw-Hill negotiations. Domingo Nick Reyes, executive 116 director of the National Mexican American Anti-Defamation Committee, accused Kramer of wooing chicano groups away from his Committee.

Individuals connected with the negotiations disputed Reyes' accusa­ tion, however it may be symptomatic of a new trend in chicano-white re­ lationships, Just as a few years ago, militant blacks looked with suspi­ cion upon white liberals who attempted to aid the civil rights movement, so ,to o , the m ilita n t chicano movement may be passing through a period of 347 resentment of white aid--what Reyes termed "superwhite to the rescue."

Another problem which the Center faces is the fact that most reform movements are not able to sustain public interest and pressure. Conditions quickly return to pre-reform state as public interest wanes.

This has been noted in Atlanta where, it is charged, the stations have returned to an all-white status specifically because coalition mem­ bers were unable to maintain pressure and monitoring of the stations.

There is a possibility that the current interest in reform of the broadcast industry w ill run its course and that the Center w ill find itself without clients. However, in the periods between reform movements, there are usually concerned groups and Individuals who maintain an interest in reform.

Financially, the Center is most vulnerable. If public interest wanes,

the large foundations may also lose interest and move on to other projects.

Thus far Kramer has been very successful in finding backers for the Center, but he is also operating in an era of great public Interest in television

^^^"A rift in the challengers' ranks," Broadcasting. LXKXI (Octo­ ber 4, 1971) p. 27. 117 reform.

Another built-in problem which the Center may have to face is the possibility of a trend toward more conservative court decisions favoring the broadcaster. While the District of Columbia Circuit Court of Appeals has been extremely favorable toward citizen Interests in recent years, there is some in d ica tio n that the Supreme Court may be moving in a more 348 conservative direction.

Such a change in the legal atmosphere would be a handicap to the c it­ izen movement which has leaned heavily on legal decisions to achieve parity with the broadcast industry before the Federal Communications Commission.

In the future, more conservative court opinions could be a factor in dis­ couraging citizen groups from contesting FCC decision.

Progress

If, as has been said, the court has installed the citizen--alraost any citizen--as a party of primary interest in any case that may be before

the FCC, then it is certainly true that the Citizens Conmunications Center has seen to it that the court's decision has been respected and carried out.

It has prodded the FCC with constant reminders that the Commission

must live up to the court's injunctions. With the threat of appeals to a

court which has increasingly taken the citizen's part hanging over its head,

the FCC has recently shown a disposition to protect the public interest

rather than the broadcaster's interest.

3^% eference is made to the recent Supreme Court d ecision denying the legal principle of a newsman's privilege to withhold the source of news stories from grand juries or other legal bodies. This has been Interpreted as a move away from a liberal interpretation of the First Amendment. 118

The FCC also announced the possibility of creating an office of public counsel to aid the public with broadcast matters. The proposal called for five lawyers to staff the office which would serve as a type of "in-house public interest law firm" that would represent the public in any manner of 349 proceeding before the Commission.

The Commission has yet to act on the proposal, but even consideration of such an office is an enormous improvement in recognizing the public's

right to participate as contrasted with the Commission's stand prior to

1966, when it refused standing to any member of the public not financially

involved in a hearing.

Another group, the Federal Communications Bar Association, has also

proposed furnishing free legal aid to citizen groups and individuals with­

out financial resources. The association's problem thus far is to find a way to offer this service without antagonizing the broadcast Interests it 350 represents and without becoming Involved in a conflict of interests.

The 1 970's seem destined to become the decade of c i t iz e n power in

terms of broadcasting. To quote FCC Commissioner Nicholas Johnson;

All that is different today from thirty years ago is that citizens' groups a ll across the country have dusted off this old legal machinery, found the "push-to-start" button, and have begun to make it work as Congress intended.331

The Citizens Communications Center is one of the organizations helping

to make the legal machinery work. It is not the only organization devoted

349iiAt Federal Communications Commission: more aid to challengers?". Broadcasting. IXXXI (July 5, 1971), pp. 47-48.

350"two hats," Broadcasting. LXXXII (May 22, 1972), p. 7.

^^^"No, We Don’t," The New R epublic. (December 6, 1969), p. 18. 119

to aiding citizens to participate in the broadcast media, but it is one of the most effective. The Center's accomplishments have made valuable contributions to the movement for citizen participation in broadcasting. BIBLIOGRAPHY BIBLIOGRAPHY

A. BOCKS AND PAMPHLETS

Citizens Communications Center. Progress Report. Washington, B.C.: Citizens Comnunications Center, May I, 1971.

G illm or, Donald K, and Jerome Barron. Mass Communication Law. S t. Paul: West Publishing Co., 1969.

Johnson, Nicholas. How To Talk Back To Your Television Set. Boston: L it t l e , Brown and Company, 1970. (New York; Bantam Books, 1970)

Office of Communication of the United Church of Christ. Racial Justice in Broadcasting. New York: Office of Communication of the United Church of Christ, 1970.

B. PERIODICALS

"A leading greener of broadcasting: Albert Kramer," Broadcasting. IKXKI (July 19, 1971), p. 73.

"A lurch toward tighter control," Broadcasting. UCXX (February 22, 1971), pp. 28-30.

"Appeals court fairness edict stands," Broadcasting. IKXXIl (January 31, 1972), p. 19.

"A rift in the challengers' ranks," Broadcasting. LXXXI (October 4, 1971), pp. 26-27.

"A spurt in the price of pacification," Broadcasting. IKXX (January 11, 1971), p. 21.

"At Federal Communications Commission: more aid to challengers?", Broad­ casting. LXXXI (July 5, 1971), pp. 47-48.

Barron, Jerome. "An Emerging First Amendment Right of Access To the Media?", 37 Geo. Wash. _L. Rev. 487 (1969).

"Bummer from the bench," Broadcasting. LXXXI (August 9, 1971), p. 50.

"Burch m iracle?", B road castin g. LXXVIII (December 29, 1969), p. 5.

"Burch: welcome mat always out at Federal Communications Commission," Broadcasting, LXXXII (January 10, 1972), p. 47.

"Communications Grant to UCC," Amer ica. CXVIII (April 6, 1968), p. 428.

[121] "Court gives green light to paid opinion," Broadcasting. LXXXI (August 9, 1971), pp. 12-13.

"Court stirs up renewal stew again," Broadcasting. LXXXII (January 31, 1972), p. 37.

"Federal Communications Commission cuts in on citizen-group compensation," Broadcasting. IXXXI (August 30, 1971), p. 32.

"Federal Communications Commission OK's primer for local 'problems'," B roadcasting. LXXX (March 1, 1971), p. 33.

"Flat ban on reimbursements vetoed," Broadcasting. LXXXII (April 3, 1972), p. 117.

"High court to hear BEM-DNC case," Broadcasting. LXXXII (March 6, 1972), p. 30.

Johnson, Nicholas. "No, We Don't," The New Republic, CLXI (December 6, 1969), pp. 16-19.

, and Tracy Weston. "A Twentieth-Century Soap Box: The Right To Purchase Radio and Television Time," 57 Virginia Law Review 574 (May, 1971).

"Kramer firm lands $400,000," Broadcasting. LXXXII (May 1, 1972), pp. 39-40.

"KRON renewal recommended," Broadcasting. LXXX (March 8, 1971), p. 40.

"McGraw-Hill sets record for concessions to minorities," Broadcasting. LXXXII (May 15, 1972), pp. 25-26.

"Minorities look to HEW for TV changes," Broadcasting. IXXXI (October 18, 1971), pp. 101-102.

"Lukewarm support on license renewal," Broadcasting. LXXXI (February 14, 1972), pp. 30-31.

"Life or death?". Broadcasting. LXXX (June 21, 1971), p. 108.

"Public hearings," Broadcasting. LXXXII (January 31, 1972), p. 7.

"Lower court rebuffs Federal Communications Commission on BEM case," Broadcasting. IXXXI (October 11, 1971), p. 30.

"Rallying around the renewal flag," Broadcasting. LXXXI (September 13, 1971), p. 33.

"Renewal applicants: fair game again," Broadcasting. LXXX (June 21, 1971), p. 28-29.

[122] "Renewal reforms," Broadcasting. LXXX (February 15, 1971), p. 7.

"Renewal route rougher in *71," Broadcasting. LXXXII (January 10, 1972), p. 44.

"Rescue possible," Broadcasting. LXXXII (March 6, 1972), p. 68.

"Shakedown," Broadcasting. LXXX (January 11, 1971), p. 70.

Shayon, Robert Lewis. "Curiouser and Curiouser," Saturday Review. LIII (August 8, 1970), p. 43.

. "Who Will Cry Havoc?", Saturday Review. LI I (June 28, 1969), p. 22.

"Signs of changing times in renewals," Broadcasting. LXXX (May 17, 1971), pp. 34-35.

"Stars and a ll fall on Alabama," Broadcasting. LXXXII (February 14, 1972), pp. 39-40.

"Sudbrink radio family to increase by three," Broadcasting, LXXX (February 22, 1971), p. 33.

"The struggle over broadcast access (I)," Broadcasting, IXXXI (September 20, 1971) pp. 32-43.

"The struggle over broadcast access (II)," Broadcasting. IXXXI (September 27, 1971), pp. 24-29.

"Threat of Challenges Broke," Jet. XXXVIII (April 30, 1970), pp. 16-18.

"Time's $69-million sale clears Federal Communications Commission," Broad­ c a s tin g . LXXXII (March 13, 1972), p. 32.

"Two hats," Broadcasting. LXXXII (May 22, 1972), p. 7.

"Up the establishment: how to play new game," Broadcasting. LXXX (January 11, 1971), p. 23.

"Where all that talk about cable may lead," Broadcasting. LXXX (March 29, 1971), pp. 80-86.

C. FEDERAL COMMUNICATIONS COMMISSION RECORDS AND DOCUMENTS

Black Efforts for Soul in Television (BEST). "Comments of Black Efforts for Soul in Television In the Matter of Primer on Ascertainment of Community Problems by Broadcast Applicants." Docket No. 18,774, filed with the Federal Communications Commission, January 20, 1970.

[123] BEST, CGC, William D. Wright and Albert Kramer, "Petition for Rule Mak­ ing." Filed with the Federal Communications Commission January 9, 1970.

Federal Communications Comnission. "In Re Complaint by David C. Green Con­ cerning Fairness Doctrine Re Stations WRC and WMAL," Federal Communica­ tions Commission 70-596, June 4, 1970.

Federal Communications Commission License Renewal Files for Alabama Educa­ tional Television Commission; WFIL-TV, Philadelphia; WNHC-TV, New Haven, C onnecticut; KFRE-TV, Fresno, C a lifo rn ia ; WGST-AM, WATL-TV, WAVO-AM, WTJH-AM, WGUN-AM, WRNG-AM, WYZE-AM, WTCG-TV, and WAGA-TV, Atlanta; and WSNT-AM, Sandersville, Georgia.

Federal Communications Commission. "Memorandum Opinion and Order In Re Application of the Evening Star Broadcasting Company for Renewal of License of Station WMAL-TV," February 5, 1971.

Federal Communications Commission. "Memorandum Opinion and Order In Re KCMC, Inc. For Approval of Agreement by Television Station KTAL-TV, Texarkana, Tex.," 25 Federal Communications Commission 2d 603 (1970).

Federal Communications Commission. "Notice of Inquiry," Federal Communi­ cations Comnission 69-1402, December 19, 1969.

Federal Communications Commission. "Policy Statement on Comparative Hear­ ings Involving Regular Renewal Applicants," Federal Communications Commission 70-62, January 15, 1970.

Federal Comnunications Commission. "Press Release," Mlmeo #53410, August 6, 1970.

Grand Broadcasting Company. 5 P. & F. Radio Reg. 2d 527 (1965).

Great River Broadcasting. Inc., 16 P. & F, Radio Reg. 669 (1969).

Johnson, Nicholas. "Dissenting Opinion in WMAL-TV License Renewal," Re­ leased by Federal Communications Commission February 5, 1971.

Kramer, Albert and William Wright. "Memorandum to Consnis a loners of the Federal Communications Commission Re Abuse of Commission's Informal Procedures," filed with the Federal Communications Commission Dec­ ember 10, 1969,

National Broadcasting Company (KNBC). 24 Federal Communications Commission 2d 218 (1970).

Post-Newsweek Stations (WPLG). 26 Federal Communications Commission 2d (November 16, 1970).

WHDH. Inc., 16 Federal Communications Commission 2d. (1969).

[ 124] D. UNPUBLISHED WORKS

Brldgens, Burton, Letter of March 20, 1970, to David Green.

Citizens Communications Center. "A Progress Report." Washington, D.C., March 15, 1970. (Xeroxed)

Citizens Communications Center. "A Proposal for Funding." Washington, D. C., March, 1971. (Xeroxed)

Citizens Communications Center. Press Release. Washington, D.C., January 9, 1971. (Xeroxed)

Citizens Communications Center. Primer on Citizens' Access to the Federal Communications Commission. (d ra ft copy) Washington, D .C ., 1971.

Citizens Communications Center. Statement issued with Progress Report. Washington, B.C., May 1, 1971. (Xeroxed)

Citizens Communications Center. "Statement of Purpose." Washington, D.C., November, 1969. (Xeroxed)

Community Coalition on Broadcasting. "Atlanta Broadcasters--Statement of Policy." Atlanta, Georgia. (Mimeographed)

Community Coalition on Broadcasting. Letter to Atlanta broadcast stations. Atlanta, Georgia, January 8, 1971. (Copy in files of Citizens Commun­ ications Center).

Corporon, John R. L etter of March 6, 1970, to David Green.

Johnson, Nicholas. Remarks before the Consumer Federation of America, Stabler-Hilton Hotel, Washington, D.C., January 28, 1971. (Mimeo­ graphed copy)

Kramer, Albert. Letter of October 23, 1970, to Raymond Stanley.

National Association of Broadcasters. "Fact Sheet: Reasons Why Legislation Should Be Enacted to Establish Orderly Procedures For Renewal of Broad­ casting Licenses - (S, 2004, H.R. 10010 and Similar Bills)," NAB: Wash­ ington, D.C., 1969. (Mimeographed)

Pa store, Senator John 0. "S. 2004--Introduction of a b ill to modify pro­ cedures for renewal of Federal Communications Commission licenses," (remarks on the Senate flo o r , A pril 29, 1969). (Mimeographed copy)

Stanley, Raymond. Letter of January 5, 1971, to Albert Kramer.

Wasilewski, Vincent T. Address before the Texas Association of Broadcasters, Koko Palace, Lubbock, Texas, October 13, 1969. (Mimeographed copy)

[125] E, NEWSPAPERS

Anderson, Jack. "Dean Burch's Memo," Washington Post. January 11, 1970.

Atlanta Journal. January 1, 1971.

Rocky Mountain News. May 12, 1972.

Washington Post. February 28, 1970.

F . LEGAL CASES

Abrams v . United S ta te s . 250 U.S. 616 (1919),

Banzhaf v. Federal Communications Commission. 405 F. 2d 1082 (C.A.D.C. 1968).

Burton v. Wilmington Parking Authority. 365 U.S. 715 (1961).

Business Executives * Move for Vietnam Peace v. Federal Communications Commission. United States Court of Appeals for the District of Columbia Circuit, Docket No. 24,492, (1971).

Citizens Communications Center. BEST, et a l. v. Honorable Dean Burch, et al.. United States District Court for the District of Columbia (January, 1970).

Citizens Communications Center. BEST. Albert Kramer and William Wright v. Federal Communications Commission. United States Court of Appeals for the District of Columbia, Docket No. 24,471, decided June 11, 1971.

Cox V. State of Louisiana. 379 U.S. 536 (1965),

David Green v. Federal Communications Commission. United States Court of Appeals for the District of Columbia Circuit, Docket No. 24,470, de­ cided June 18, 1971.

Lee V. Board o f R egents. 306 F. Supp. 1097 (W. D. Wis. 1969).

New York Times Co. Sullivan. 376 U.S. 190 (1964).

Office of Communication of the United Church of Christ v_. Federal Commun­ ications Commission. 425 F. 2d 443 (1969).

United Broadcasting Co. (WHKC). 17 Federal Communications Commission 2d 204 (1969).

Wirta V. Alameda-Contra Costra Transit D istrict. 343 P. 2d 982 (Cal. 1967).

[126] Zucker v. Panltz. 299 F. Supp. 102 (S.D.N.Y. 1969).

G. U.S. SENATE RECORDS

Senate Bill 2004, 91st Congress, 1st Session (1969).

U.S. Congress, Senate, Committee on Commerce. Amend Communications Act of 1934. Hearings before the Communications Subcommittee, U.S. Senate, 91st Congress, 1st Session, on Senate b ill 2004, 2 volumes, August 5-7, 1969, and December 1-5, 1969, (Washington: Government Printing Office, 1969).

U.S. Congress, Senate, Committee on Commerce. Review of Federal Communica­ tio n s Commission and Inquiry Into Crime and V iolence on T elev isio n and a Proposed Study Thereof by the Surgeon General. Hearings before Sub­ committee on Communications, 91st Congress, 1st Session, March 12, 19, and 20, 1969, (Washington: Government Printing Office, 1969).

[127] APPENDIX Dear Sir:

Enclosed please find the staterent of policy agreed upon by the raenbcrs of the Community

Coalition on Broadcasting. Representatives of the coalition w ill be meeting with you to discuss this contract In detail.

Lonnie C, Klr,

Tlcv, Joseph Doonp ^

Co-Chairmen- Community Coalition on Broadcasting

1

[129] A T U m DR0ADCA3TSS - STATEfEI/T OF POLICY

The Community Coalition on Broadcast!ng proposes the following agreement to l.c signed l.y Dig licensee and that said agreement w ill be affixed to and l'écorné part of said stutlon^s application for license renewal and said Section IV-A or Section IV-B w ill be amended to reflect the provisions herein.

Ascertainnent of Community heeds

1, A station employee with authority to act wl11 meet with representatives of the Community Coalition on Broadcasting, which wi11 assist the station in meeting its obligations to the various publics served.

Station management w ill convene meetings on a regular basts, at least monthly. Situations may arise which require immediate consultation.

In which case either the station management or Coalition shall convene an emergency meeting. Similar efforts will be made to consult with grouos representing other segments of the nub lie,

2, Station will regularly announce on the air that the station w ill consult with a ll substantial groups in the comnunity regarding community needs and tastes and will accept suggestions on how best to render this service. This announcement w ill be broadcast once a week,

on a weekday, between 7 and 11 p.m.

Emplo>TTicnt

1» Station______will continue to ol'scrvc all laws and Federal

policies requiring equal employment practices and will take affirmative action to recruit and train a staff wliich is broadly representative

of all groups in the comjuunlty.

[130] 2, Station"’ shall hire, Imrrcdiatcly In a management, policy inaKlng position, one blaclt Individual, This employee shall be

responsible for programming for the black community. However, this

employees responsibilities shall nob be limited to programming for the black community,

3, Station w ill develop and implement, immediately, a program

to hire blacks in each of the following catcgoriesf

Category

General Administration Progra'-'ming Producti on On Air P‘?rsonalIties Hews/ Public Affairs ' Clerical

li. Station______w ill immediately 1 mnlemcnt an in-house on-the-Job

training nrogram^or blacks. Each trainee shall be assigned to a

full-time employee who shall be rcsoonsiMc for his instruction and

advisement. Faculty shall consist of full-time station employees.

Training facilities shall be the station’s studios and offices.

Seminars shall be held weekly.

5# Recruitment of black employees and trainees shall be the sole

rcsf onslhillty of Station . Station will putlicizc Its

equal employment opportunities program, including weekly announce­

ments to be broadcast between 7 and 11 p.m.

6, Station will assure nondiscrimination in the pay-scalc

and advancement of all Macit employees and trainees. 7, Station will hire black fcnnlcs in the following positions;

General Administration, Progrannlng, Pr action, On-thc- air personalities and Pews/PuLlic Affairs.

8, Station immediately w ill emp3oy full-time black news rcportcr(s). These reporters wl11 appear regularly on camera on all

major hews programs. These reporters w ill have the responsibility

of covering news in the black community Imjt their assignments w ill

not be limited to that area.

Hews and Public Affairs

1. Station w ill cover news and events which broadly reflect

life in the black community. ,

2. Station recognizes its affirmative obligation to present

diverse views on a ll controversial Issues of public importance, and

to adhere to the FCC rules governing personal attacks,

A: JÎ?cognixing that diverse view.' exist within the black community, Station will establish a policy of actively seek.ing the vaFi'ous ideas and opinions which represent the entire spectrum of thought among blacks in Atlanta. Station wl11 establish a policy of identifying all persons interviewed by the group or organization they represent, as well as by name.

B. Station w ill actively seek and regularly schedule the airlrio of~'controversial issues within the blaolc community,

C. The oublie right to resent cposing vicvmoints will be rcç^ilarly announced )->y Station______,

3. Station will appoint one black full-time employee with

authority to receive and handle requests for news coverage and public

service announcements from the l^lack community.

[132] L. station w in establish new programs to Inform the public a)x>ut the problem of poverty and the steps that are N lng taken to alleviate It, These programs v i11 be designed to nubliclzo the rights of poor persons to oV-tain services and the methods ty which they may do so. Programs should nrovide a vehicle for self expression for the poor, as well as for officials \)ho provide services.

Discussions of this problem shall be included in a ll areas of new and existing programming. fiiblic Service Announcementg

1. Recognizing its obligation tp present public service announce­ ments for reprosentative community groups and organizations, Station

_ w ill broadcast a statement informing the public of the availability of such announcena nts and its willlngness to assist in their preparation and presentation. Such a statement w ill be broadcast at least once cnoh week between the hours of 7 and 11 p,m.

Time for local public service announcements will be divided equally between black and white organizations and groups according to total time devoted to such announcements and placement within the broadcast schedule.

Programming

The black occiaunlty of Atlanta lo oocpoccd of Individuals‘with their ova culture, talents, feelings and aspirations which may be

separate from and not understood by other elements of the community.

Distinctive tastes, needs, desires ond interests should he reflected

In all areas of station programming, as cited in the lii programming

elements included in the FCC’s I960 Profirnmmlnn .Stat ement, ^

^Report and Statement of Policy Rc: Commirsion Kn Pane Pro­ gramming Inquiry, July 2?196''- J'CC ■3'^-97ü. [133] These Include: 1, Opportunity for local self-expression

2, The development and use of local talent

3, Programs for children

1|* Religious programs

5. Educational programs

6. Public affairs programs

7. Editorializing by licensees

8. P olitical broadcasts

9. Agricultural programs

10. Hews programs

1 1 . VJcathcr and market reports

12. Sports r’rograr.s

13. Ser\^lce to minority grouns

iL. Entertainment programming

Stati on______understands that in deciding what constitutes the tastes, needs, desires and Interests of the black cotrjmunlty,

the views, opinions and leaders which arc representative of

Its members and the authenticity of portrayals of black life ,

culture and values, the ultimate judge shall be the black

community its e lf

Specifically, Station amends its statement of proposed

programming to include the following elements:

I. Station w ill dcvclo>^ and present at least

monthly, in prime time, a regularly scheduled local

program which will )e produced and directed by blacks

[134] and which w ill Include the use of local black talent

In all areas of program production,

2, Station______will make maximum use of a ll available

network progranning of special interest to the black

community aired at network scheduled times, Emnhaais

w ill be placed on news and public affairs nrogrammlnq Hit

It is recognized that the black community has a valid

interest in other program types which feature black talent.

Such network programs w ill not be preempted without advance

consultation with representative of the Community Coalition.

3* Station will present a daily program for school-age

children, giving special cmpliasis to the long-neglected

needs of black children and portraying the rich culture

and heritage of black people. This program will be produced

in consultation with black and white educators and will

make maximum use of local MacIt talent.

L. Full participation by black children w ill be assured

in all children’s programming.

Stat1on agrees to develop new and unique proaramming

to develop and expose local black talent, amateur, semi-

professional and professional, drawn from such local

resources as:

Spclman College Clark College Morehouse Collc'-'G Morris Drown College Atlanta University Dixie Hills Vine City Local )>lacl{ high scliool.c Local Mack clcicntary schools

[135] 6, Stat (on w in provide nlayi-ly-play coverage

of local srorts event? of both prodomlnantly Mack

and predominantly white school? on an equal i-asls,

7. Station will make an affirmative effort to present

blacks, of both sexes, on an equal basis with whites,

in a ll local i^rogrannlno

Economic Dcvelonment

1« Through programming such documentaries. Station w ill discuss

new and emerging enterprises within the black community,

2, StatIon , in consultation with the Community Coalition on

Broadcasting, w ill develop a program of providing free commercial

advertising for emerging black owned and operated businesses.

3* Station w ill immediately open active accounts with black

owned and operated businesses, such a? financial institution?,

advertising firms, nubile relations firms, modeling agencies and

newspapers.

U. Station will seek to establish an affirmative policy, with

a ll of its advertisers, regarding the use of blacks In a ll local

commercials.

Other

1, Station agrees that a black public member shall be

Bfipointcd to Its* Board of Directors.

2, Station agrees to broadcast this statement of nolicy in

prime time, and to pulllsh said statement in tlie six ncvjsoaoers

presently serving the Atlanta area.

Footnote: Prime time sliall be defined as: 6-9a.m. and h p.m. to sign-off. for day time stations, and 7-11 p.m. for all oUicrs.

[136] D. ‘Minority Prorrorn Project

Following the filing of the "Petition to Deny" these applications by the Citizens Communications Center on

Its own behalf and on behalf of others, counsel for Capital Cities and responsible officers of the company held a series

of meetings with counsel for the Center and other representa­ tives of petitioners, to determine whether there was a basis on which the objections to the transaction raised by petitioners might be resolved, i.e., a basis on which petitioners might agree that (from their point of view) the overall transaction here proposed would serve the public interest. Discussion at these meetings focused particularly on the question of whether the transaction would serve a "compelling public interest" — ' a matter that petitioners think critical under the terms of the "top 50 markets" policy, ' •

In the course of these discussions. Capital Cities expressed a willingness to make a special commitment, over and above any représentation already made in the pending applications, to the development of programming which reflects the views, aspirations, prpbleiPiS and culture of black and Spanish-surnamcd (Chicano, Puerto Rican, e tc .) rnirjority groups within the scivice areas of the three television sta­ tions it seeks to acguira. It did so in recognition of two fundamental facts.

[137] The first Is a fact about the communities we seek to serve, and was already reflected In the conclusions we had drawn as to their needs and Interests, Thus, In Philadelphia, we found that race, relations are "[a]t the heart of It all" and "seep into almost every issue discussed by leading citizens"

(BAPCLT-105, Ex, II, p, 8). As* one prominent Philadelphian put it: "If you could take race out of the picture y give everybody skin of the same color - I wonder how much of the ’urban crisis' would disappear?" (id. at p. 6), And we were forced to consider — In pondering the "symptoms of urban disease" — "whether 'housing' means anything other than housing for minorities; whether 'education' means only

the impact of large and growing minority groups on city schools; whether 'crime' refers to 'white crime' or 'black crime'; whether the difficult relationship between city and suburbs is not principally over the issues that grow out of

r a c ia l problems" ( ib id . ) ,

In Fresno, we found that " .,.the plight of the

Mexican-American is the most urgent and difficult problem of

the San Joaquin Valley,.," (BALCT-^n , Ex, II, P, l4)

and that "[a]lmost every major problem the applicant has

learned about in the'Fresno area (except perhaps for the

related problems of the Blacks.,,) begins and ends with the

[1 3 8 ] displacement of the farm-worker and with the stirrings of rebellion in his children: unemployment, housing, weIfa re, educational needs" (W. at p. 8 ) , F in a lly , In New Haven, we were led to say of race relations: "This, of course, is where

It a ll begins - the housing problem, the education problem,

the conflicts between cities and suburbs. Despite the euphem­

isms, this Is where it begins. In Connecticut as elsewhere,

This is the American agony" (BALCT-4*09,^ Ex. II, 14-15),

The second relevant fact is one about television,

and is stated as follows In the pending applications (e.g.,

BAPCLT-105, Ex. I l l , p. 4): ,,,the bare provision of an outlet for the expression of important thoughts and feelings cannot be the final goal. If the medium's "public ser/ice" efforts succeed only in letting the separate segments of our society talk to thenseivcG, very little w ill have been accom­ plished, We think the point particularly valid in regard to race relations. There is a value, for example, in programming which gives black people a chance to express themselves. To be useful as a means of self-ex p ressio n for the black community, however, such programming must at le a st a ttra ct black viewers, and to be useful as a means of communication between races it must attract viewers of all races. The problem framed by these fa cts might be cap-

su lized by a remark trade to us by Hr. Guillermo Martinez, in

Fresno: " .,.your system is not good for us. We don’t parti- • • cip a te," (BALCT- 411, Ex, II, p. 5 ). believe that there Is an overriding need for the development of means by which

te le v is io n can convey to the community at large the thoughts.

[139] aspirations and feelings of racial and other minority groups and to do so effectively. VJe are equally convinced that the development of programming f u lf ill in g this goal requires an a ffirm a tiv e commitment of time, e ffo r t and fin a n cia l re­ sou rces. The commitment we suggested in our d iscussions with petitioners reflected these convictions. This suggestion was then explored, not only with petitioners, but with minority group representatives in Phila- delphia, Ncvr Haven and Fresno, The President of the Broad­ casting Division of Capital Cities, a consultant designated hy the C itizens Communications Center and one or more other consultants designated by him held meetings in the three cities with minority group representatives, at which the bas-i-c suggestion was discussed in broad outline. (See

Attachment A.) After subsequent discussions be tween representatives of the Center, Capital Cities and the two

* co n su lta n ts, a more formal description of the proposal was reduced to writing and discussed in 'Washington with minority group representatives from the three cities. (See Attachment

B.) The transportation and other expenses of these consulta­ tions were borne by Capital Cities.

[HO] These discussions have culminated in the following agreement;

1, Capital Cities will commit a total of $1,000,000.00

over the three-year period following Federal Communications

Commission approval o f i t s acquisition of Stations T7FIL-TV,

WNHC-TV and KFRE-TV to the development of programming which

reflects the views, aspirations, problems and culture of black

and Spanish-surnamed (Chicano, Puerto Rican, etc.) minority

groups within the service areas of the three television

stations. The three-year period will begin to run from July 1, 1971 , and yearly periods sh a ll be measured from ‘July 1 to June 30, Capital Cities contemplntes that such programming w ill be produced (1) by individual Capital

Cities stations; (2) by a Capital Cities corporate production unit (hereafter the "corporate production unit"), and/or (3)

by outside sources whose efforts would be funded wholly or partially by Capital Cities. . ■ 2. The funds to support th is effo rt w ill be

deposited in a minority owned or controlled bank at the

commencement of each year, with no less than $333,333.00 deposited each July 1 of the three-year period. Funds w ill

[141] be drawn upon as needed. But this paragraph shall not be construed as limiting the expenditure to $333,333,00 per year or requiring a minimum expenditure of $333,333.00 per year; rather it is contemplated that Capital Cities will expend the

$1,000,000.00 in good faith and.subject to the other provisions of this undertaking over the three-year period, 3. Capital Cities anticipates that, after à period of 3-6 months for purposes of organizing the effort

(th is period to be measured from the date on which the stations involved are acquired), sufficient program product will be produced to allow each of the subject stations to te le c a s t a minimum of 6 hours of programming in th is field per year (with each program at least 1/2 hour in length). Capital Cities anticipates and intends that a minimum of 5C6j of such programs w ill be teleca st in prime time (6-11 p.m. on weekdays and 5-11 p.m. on weekends in the Eastern Time Zone and comparable periods in other time zones). Capital Cities expects, however, that some programs w ill be scheduled in other periods in order to reach different audiences or because of a Judgment by the licensee, after con­ sultation as provided below in paragraph 4, that such schedul­ ing would be more effective. - ' 4. To ensure ttrt programming designed as an ou tlet foi* minority groups is responsive to the views of the minority

[142] groups In each community with which it deals and that such minority groups have an adequate opportunity to express their views concerning overall station operation to key Capital Cities personnel, the following steps w ill be taken;

(a) The general managers of the three subject s ta tio n s w ill each appoint an advisory committee composed of leaders from the relevant minority groups within the service area of each station. The initial membership of this committee w ill be appointed as follows ;

* (i) The President of the Broadcast Division of Capital Cities, the general manager of the subject station and the two principal consultants referred to above w ill mutually agree upon two representatives of the minority organizations in the subject community who were consulted in the formulation of this project (see Attachment A) . These six persons will mutually agree upon a.panel of names of minority group leaders designed to be broadly representative of the minority groups in the community to which the subject station is licensed. . (ii) The general manager o f the sta tio n w ill appoint a group of charter members of the advisory comunittee from the panel of names so drawn up. He may also appoint additional persons as initial advisor^' committee mcmlaers, pro­ vided that he will consult with the charter members in advance concerning any such appointment and will refrain from appoint­ ing any person if the charter membars unanimously agree that [143] the person proposed should not be a member of the advisory

committee.

(iii) It is intended that the advisory committee w ill at all times be broadly representative of the minority groups in the community to which the subject station is licensed. At any time after the appointment of the initial

advisory committee, if the station or the committee believes

that a significant segment of the minority population is not

adequately represented, an additional member (or additional members) w ill be appointed for this purpose by the general

manager, provided that; the general manager w ill consult

■with the advisory committee in advance concerning any such appointment; in the event that he and the committee cannot

agree concerning any proposed appointment, the matter w ill

be referred to the President of the Broadcast Division of

Capital Cities. (b) Each year, for the purposes of planning, the. overall sum of Ç333,333.00 committed to the project w ill be allocated to the throe communities as follows: Philadelphia $135,000.00; Mew haven $110,000.00; Fresno $88,333.00. Any

sums committed to the project in any year over and above

$333,333.00 will bo allocated to the three communities in • similar proportions, except as provided in paragraphs 7 and

8 below. The out-of-pocket costs of any programs under­

taken pursuant to this project will be charged against the fund allocated to the relevant community or community in

[144] such amounts or proportions as Capital Cities shall determine.

However, no amount shall be charged against the fund allocated to any community unless the views of that community's advisory committee concerning the amount of money to be budgeted against the community's allocation, the program topic or topics and the source and manner of, the program's production have been ascertained. Where the advisory committee does not approve of the subject matter pf any particular program or programs, the views of the committee w ill be given great weight and careful consideration by Capital Cities in determining whether any part of the costs of such program or programs shall be charged against the fund allocated to that advisory committee's community, (c) Each sta tio n manager and/or other relevant station personnel (Program Manager, News Director, etc.) w ill meet with his community's advisory committee during the course of each year with sufficient frequency to permit not only the discussion of proposals by the station or the com­ mittee as to progr-ams to be planned and produced but also the presentation of the committee's reactions and criticisms of s p e c ific programs and the overall project, as w ell os other aspects of station operation which the committee may wish to discuss. Meetings will normally bo called by Capital Cities, but upon the request of one fourth of the members of the. committee. Capital Cities will call a meeting, (d) At le a st once each year, the Chairman of the Board of Capital Cities and/or the President of the Broad-

[145] casting Division w ill meet with the advisory committee in each community to obtain its views as to programs to be planned, to report on the progress of the project as a whole and the moneys expended, and to obtain criticism s of sp ecific programs as well as the committee's evaluation of the overall project.

These meetings w ill a lso be attended by the company's D irector 1/ of Community Relations and/or the Vice President in charge of the Television Division, Vfhere feasible, they will be attended by the Executive Producer of the corporate production u n it,

(e) Responsibility for all decisions concerning the expenditure of funds or the telecasting of any program w ill rest with Capital Cities. However, thecompany is re­ ceptive to and desires to encourage innovative, creative pro- grajnming responsive to felt needs of minority groups. Accordingly, in declining to broadcast any program recommended to i t by an advisory committee or in rejecting any programming

*/ The post of Director of Community Relations is a newly created position at Capital Cities, It is held by a minority group member who is also an experienced broadcaster. His. duties are primarily to assist Capital Cities station managers in the development of the Company's program of hiring and training members of minorities in a 11 levels of station operations,

[146] proposal advanced by an advisory committee. Capital Cities w ill, upon written demand therefor from the advisory committee making the proposal or seeking to have such program te le c a s t, provide a written statement setting forth its reasons for rejecting the proposal or declining to air the program.

5 , Whether programs are produced by individual stations or at the corporate level, a maximum effort will be made to obtain and utilize the talents of minority group members in technical, artistic, writing,.directing and pro­ ducing functions. In this respect, a major purpose of the project is to provide both an outlet for local self expression on the part ofminority group members and training in the use of television for such expression,

6. The project described in paragraphs 1-5 will not be limited only to programs of a documentary or public affairs nature. It will in addition seek to expose and portray the problems and views of minority groups through a ll forms of expression, including artistic and dramatic presentation. Whatever the format utilized, however, the aim is to convey the viewpoints of members of minority groups vigorously and e f f e c t iv e ly . The programming w ill sock to be persuasive, hard-hitting and polemical, fulfilling the role of an advocate' on behalf of the various minority groups, if necessary to con­ vey adequately the problems and interests involved. Any s p e c ific program may protray a range of viewpoints on p a r ti­

[147 ] cu lar Issu es. However, In no case w ill there be a requirement that any particular viewpoint be "balanced" within the confines of a particular program. Any obligations under the FCC's "fairness doctrine" that may result w ill be discharged by

C apital C ities through other programming v e h ic le s,

7. In determining whether and when to schedule any program produced by this project, no Capital Cities station , w ill take into account the availability or unavailability of sponsorship. In the event that any such program Is sponsored, all revenues less sales commissions received w ill be added to the fund committed by Capital C itie s to the community of the station obtaining such sponsorship. No charge will be made against the fund for revenues that might have been ob­ tained from the sale of time used to telecast programs produced by the project or for revenues that might have been lost as a result of any reduction in the audiences of ad­ jacent programs, .

8. Any program produced by the project may be telecast by any, television station licensed to Capital Cities,

A ll programs produced by the project w ill, a fte r broadcast by a Capital Cities station or stations, be made available to any other television station or any network without cost other than tape co sts, unless the program is In the judgment o f C apitol C itie s , a fte r consultation with the coir.mittee or committees described in paragraph 4, of such quality and/or

[148 ] value as to be saleable. In that event, half of the proceeds o f such sale w ill be added to the $1,000,000,00 fund committed by Capital Cities and allocated among the three subject com­ munities in approximately the same proportions as those in which the original $1,000,000.00 fund was allocated,

9 , Capital Cities will make a good faith effort to provide adequate promotion for the programs produced pur­ suant to this project, including but not lj.mited to such on- the-alr plugs and such outside advertising (e.g ., newspaper) as Capital Cities may, in Its good faith discretion, determine to be warranted.

10, Over and above programming s p e c ific a lly pro­ duced by the project, each of the television stations involved w ill a c tiv e ly seek ways in which to incorporate program ideas suggested by the project into existing programs of wide aud­ ience appeal, with a view to obtaining maximum exposure for them. To illustrate: Capitol Cities* KTRK-TV, Houston, is curz'ently planning a half-hour public a ffa ir s program on minority group employaient problems, to be broadcast as one episode of a regularly scheduled public affairs series at

6:30-7:00 p.m. on Sundays, In the course of program planning, it became apparent that there is an acute need for regular information on methods of gaining cmplo;/mcnt and particular areas where opportunities exist. The station is now planning

[149] a new segment of i t s highly popular Monday-Friclay morning program. Dialing for Dollars (8:55-10:30a.m.), designed to • provide this kind of information. The program segment will be hosted by a black employee and a white employee of the Texas Employment Commission, The station expects this program segment to reach thousands of homes, black and w hite, that might never be reached by prime time specials. The advisability of Instituting a similar program in New Haven, Philadelphia and Fresno w ill be investigated immediately upon acquisition of the relevant, stations, 11, Each Capital Cities station presently has under development an Affirmative Action Program in the field of Equal Employment Opportunity, to be filed with the Com­ mission in accordance with its regulations. The management of each of the stations to be acquired by Capital Cities w ill consult with the advisory committee described in paragraph H concerning the station's and/or the company's g o a ls in the field s of training and employment of minority group personnel. Subject to the objective, specific stand­ ards of its forthcoming Affirmative Action Programs, it is the goal of Capital Cities to achieve a IO-I5/ ratio of minority employees in its broadcast division during the next three years. Company training and employment p o lic ie s w i l l b'e affirmatlvcly directed toward achievement of such goal. Capital Cities will make a good faith effort to negotiate any clauses in union contracts that may be necessary to achieve the goals of the Affirmative Action Program and the J^Ünority

Program Project described above. [150] _____ Capital Cities Transfer

[In re Applications of Triangle Publications, Inc. , (Assignor) and Capital Cities Broadcasting Corp. (Assignee), et al. , for Assignments and Transfers Involving Stations WFIL-TV-AM-FM, WNHC-TV- AM-FM, KFRE-TV-AM-FM. WSAZ-TV, WTEN-TV, and WCDC-TV]

Concurring Opinion of Commissioner Nicholas Johnson

The Federal Communications Commission has today approved

one of the largest assignment and transfer matters ever brought before

this Commission. We have before us a $110,000,000 transaction in­

volving eleven separate applications; the lawyers' papers alone occupy

more than three feet of shelf space.

Capital Cities proposes to acquire nine broadcast stations from

Triangle Publications, retaining three major television outlets (in

Philadelphia, Pennsylvania, New Haven, Connecticut, and Fresno,

California), and to "spin-off" three AM-FM combinations in the same

cities to separate purchasers for a total spin-off price of $14, 555, 000. In

related applications, Capital Cities would also dispose of its present

Hunting ton, West Virginia, and Albany, New York, television outlets

in order to comply with this Commission's multiple ownership rules.

All of the applications are contingent on each other and become ter­ minable if the Commission fails to approve any one of the 11 applications.

While this un wieldly "package" transaction smooths over several

significant problems, which I will discuss briefly below, I nevertheless

[151] concur in the Commission's approval of Capital Cities' acquisitions.

The grounds for my concurring vote are two; (1) The proposed

$1, 000, 000 Minority Program Project represents the first such negotiated agreement between local citizens and a broadcaster growing out of an assignment and transfer case. Such innovation is commendable and to be encouraged. But for this feature I would have dissented to this transaction. Even with it, I may not find it possible to approve comparable assignments in the future. But, for this case, it seemed most appropriate to concur. (2) The assignment will result in some déconcentration of group ownership on national and regional levels.

I.

Media Déconcentration

My concerns about the present trend toward media concentration and the dangers inherent in the growth of powerful 'tnedia barons" have been set out in detail elsewhere. See, N. Johnson, How to Talk Back to Your Television Set 43-78 (1970), and Johnson and Hoak, Media

Concentration: Some Observations on the United States Experience,

56 Iowa L. Rev. 267 (1970).

Likewise, our nation's courts have for years been aware of the importance of competitive media. They have been especially vigilant in enforcing the anti-trust laws when dealing with the structure and practices of the communications industries. The U. S. Supreme Court

[152] in 1953 said that "[a] vigorous and dauntless press is a chief source feeding the flow of democratic expression and controversy which main­ tains the institutions of a free society. " Times-Pi cay une Publishing Co.

V . U. S. , 345 U. S. 594, 602 (1953). The Court of Appeals for the

District of Columbia has placed an affirmative duty on the FCC to encourage competition. In Joseph v. FCC,-404 F. 2d 207 (D. C. Cir.

1968), the court said that "[t]he public welfare requires the Commission to provide the 'widest possible dissemination of information from diverse and antagonistic sources' and to guard against undue concentration of control of communications power." Id. at 211, citing Associated

P re ss V . U. S. , 326 U. S. 1, 20 (1945) and Scripps-Howard Radio, Inc. v.

FCC. 189 F. 2d 677, 683 (D. C. Cir. 1951), cert, denied. 342 U. S.

830 (1951).

Congress has delegated to the I’CC great power to combat media concentration. The Communications Act of 1934 provides that no license shall be granted or renewed, 47 U. S. C. § 309(a) (1964), nor any sale of the station approved, 47 U. S. C. i 310(b) (1964), until the

Commission makes an affirmative finding that the '\jublic interest con­ venience, and necessity" compels such action. While the Act contains no express language regarding concentration of ownership, the legislative history clearly indicates that Congress designated these sections, and

[153] their predecessor sections in the Radio Act of 1927, to prevent the growth of media monopolies contrary to the national interest. Cf. ,

67 Cong. Rec. 5478-80 (1926) and Pote v. Federal Radio Commission.

67 F, 2d 509 (D. C. Cir. 1933), cert, denied, 290 U. S. 680 (1933).

In essence, then, these sections allow the FCC to take a wide range of action which it finds to be in the public interest, to decrease theconcentration of the media in this country.

Capital Cities concedes that the acquisition of the Triangle stations will increase the combined net-weekly circulation of its television homes from roughly 2. 4 million to more than 4. 6 million,L'

The Capital Cities acquisition will almost triple the potential number of television homes Capital Cities will serve in the top 50 markets.

Despite this growth in television households for Capital Cities, the transfer of the Triangle stations in Philadelphia, New Haven, and

Fresno, and Capital Cities’ related sale of existing television holdings in Albany, New York, and Huntington, West Virginia, do provide some benefits as well.

Mass media control generally will be de concentrated in the

Philadelphia, New Haven, Fresno, and Albany markets; and a new

competitor will be brought into the top 50 markets with Lee Enterprises acquisition of the Capital Cities television, WSAZ-TV, in Huntington.

This is important.

[164] On a regional basis, the sale of Triangle's WFIL-TV in

Philadelphia will break the Grade B overlap chain between Triangle's throe Ponnsylvania stations, thus diminishing Triangle's voice in the

Northeast generally, while bringing a new voice, that of Capital Cities, to Philadelphia and New Haven. In addition, the breakup of Capital

Cities' three-station combination in Albany will promote diversification by reducing Capital Cities' outlets in an important state capital; the spin-offs will bring as many as six new owners into Philadelphia, New

Haven, and Fresno.

II.

Minority Programming

The most heartening and innovative aspect of this complex assignment of licenses is the $1, OOO, 000 Minority Program Project.

Agreements giving citizen committees in local communities a voice in broadcast programming, until recently relatively nonexistent, are now becoming commonplace. This pattern of negotiation with the broadcasters for improved programming and minority hiring has been followed in Texarkana, Rochester, Atlanta, Nashville, Memphis, Mobile,

Youngstown, Chicago, and most notably in the transfer now before us.

Cf. , WSM. Inc. , 25 F. C. C. 2d 56l (1970); KCMC, Inc., 25 F. C. C. 2d

603, 605 (1970); Chicago B roadcasters and Critics Reach A ccord,

N. Y. Times, M arch 3, 1971, at 87.

[156] As a result of negotiations with Citizens Communications Center,

a Washington, D. C. , public-interest law firm, minority group

members including Negroes, Puerto Ricans, and Chicanos in Phila­

delphia, New Haven, and Fresno, Capital Cities has agreed to commit

$1, 000, 000 over the next three years to develop program m ing reflecting

minority problems. Capital Cities has agreed to produce and pay for

enough programming to fill at least six hours of air time, half of it in

prime time, on each of the three television stations over the next year.

No less than $333, 000 per year will be deposited in a minority-controlled

bank, with $135,000 earmarked for Philadelphia, $110,000 for New

Haven, and $88, 333 for Fresno.

The Capital Cities agreement — ^ clearly amounts to an important

breakthrough for public participation in the process of administration

and governance of the public airwaves. It may well be that FCC licensees

have the responsibility under law to provide such prog ramming--and more--

already. But the fact remains that they don't do it, and the FCC doesn't

insist upon it. At a time of mounting public outrage against the excesses

and abuses of the corporate dominance of American broadcasting, it is at least heartening to see that humble citizens can extract some public

service commitment from big broadcasters.

I fully concur in this innovative precedent.

[156] n.'uu'c* Km

III.

Questionable Trado-Qffs

Quite apart from the déconcentration and minority programming

aspects of this transaction, the Capital Cities transfer presents major

policy questions about which I continue to harbor deep reservations.

As a preliminary matter, I would hope that the Commission's approval

of this particular transfer will not have the general effect of establishing

a precedent sanctioning future huge, basically unmanageable package

transactions--thus offering great potential for abuse. In short, the

transfer before us is simply far too large for any one Commission,

let alone any one commissioner, to scrutinize adequately.

The unfortunate tendency of such package transfers is to en­

courage a kind of 'trade-off" mentality; "trade-off" in the sense that any

concessions in the public interest appear to carry with them negative

counter-concessions that do not come close to squaring with the 1934

Communications Act or this Commission's long-standing rules and policies.

As a general rule, I think it is important in discharging our public

interest mandate that we approach each transfer of a station license on

a case-by-case basis, weighing the merits of each assignment carefully.

This careful scrutiny is simply not possible when a dozed stations,

as here, are involved in a large, umbrella tv

[157 ] MbWCAWWARwa*K.-^?r " t r ; , .«., ,;r - :-- ,..iw r ^ r - .. - i .v v .:. .V ►•v . : ' t , 5s,- 1 V'i- 'f -’/•.:.V *. V- --i •• 1 ' -]’-. ..-V\ i.i ...i^

Furthermore, I see three other facets of this multiple transfer

that are difficult--indeed, perhaps Lmpossible--to square with our

public interest obligations. These are:

1. Conduit Purchasers; Under these applications, Capital

Cities will dispose of the Triangle AM and FM outlets to six separate

buyers. These so-called "spin-offs" raise a major policy question as

to whether it is in the public interest to permit a licensee to delegate

responsibilities for selling stations to a "conduit" buyer who arranges

the spin-offs.

The Commission majority proceeds on the premise that there

is ample Commission precedent for passing stations through a conduit

buyer, like Capital Cities, who has no intention of operating the stations

but intends instead immediately to spin them off to other buyers. Nor­

mally this would be viewed.as a violation of our three-year rule. To

be sure, there are perhaps two Commission cases that might suggest

precedent allowing such conduit arrangements; but the idea has hardly

taken deep root or ever evoked much real enthusiasm. It has rather

been more a choice among distasteful alternatives. And isn't it clear

by now that any spin-off at a profit, where the assignor renders no

real service, amounts to something very close to the classic case of

trafficking? Capital Cities maintains that it does not now know whether

[158 ] there will bo any nrolit; so the trafficking charge is prem ature and spoculat'vo, the argument goes. Nevertheless, Capital Cities is basically up-marketing; it concedes as much. And given the rising value of broadcast properties, especially in substantial metropolitan area like Philadelphia and Hartford-New Haven, it is highly unlikely that Capital Cities would lose on the delegated transfers.

If our rules are to have any meaning, I would expect that the conduit sales would have to be made without profit. Cf. , Shenandoah

Life Stations, 19 F. C. C. 2d 704, 707-708 (Commissioner Cox's separate statement).

2. Regional Concentration; Despite the substantial déconcentration effects of this transaction, other bothersome concentration problems linger. For example, the Grade B contours of WFIL-TV, Philadelphia, and WNHC-TV, New Haven, nearly overlap. Allowing Capital Cities to acquire two major stations (in the fourth largest, and 12 largest markets respectively) in the Northeast results in what amounts to an undesirable regional concentration of control of the mass media. Philadelphia

WFIL-TV operates on channel 6 and is the primary ABC network affiliate in the Philadelphia area as well as serving large portions of populous

New Jersey and all of Delaware. New Haven's WNHC-TV operates on channel 8 and is the primary ABC network affiliate for the New Haven-

Hartford metropolitan area and the populous portions of central Connecticut.

[159] 4^AjtrTiXf r ; M r : ; L T f n ' u ^ , -, y;., ,&&:j

My own reservations about regional concentration have been amply

set out in prior opinions. Booth American Co. , 14 F. C. C. 2d 136

(1968) (dissenting opinion of Commissioners Cox and Johnson);

Wichita-Hut chins on Co. , Inc. , 19 F. C. C. 2d 433,(1969); 20 F. C. C. 2d

951, 954 (1969): WNVL-AM, F. C. C. Public Notice 64035 (Feb. 9,

1971); Newport Broadcasting, F. C. C, Public Notice 64704 (March 2, 1971).

3. Programming Proposals; Despite the breakthrough in

programming established by the Minority Program Project, the

assignment of the AM-FM combinations in Philadelphia, New Haven,

and Fresno may well result in a diminution . of programming service as

measured by the informal 5-1-5 (5 percent news, 1 percent public

affairs, 5 percent all other) standard. The percentages bantered

about in the filings are substantially in dispute. Under these cir­

cumstances, all of the AM-FM transfers are at best marginally

acceptable or, more likely, woefully inadequate in terms of minimum

programming of news, public affairs, and other non-entertainment fare.

IV.

Conclusion

In sum, I concur in the Commission's action today because of

this decision's déconcentration of group ownership and our approval of

the Minority Program Project. My vote in no way, however, endorses

or approves the Commission's action with regard to conduit purchasers,

regional concentration, or the programming problems I have outlined

[160] ! -,

Footnotes

Following approval of these applications, Capital Cities will hold these licenses:

Call Letters Location Weekly Market Circulation

WFIL-TV Philadelphia, Pa, 2, 177, 132 4th WNHC-TV Hartford-New 886, 285 12th Haven, Conn. KTRK-TV Houston, Texas 659, 400 21st WKBW-TV Buffalo, N. Y. 583, 717 27th WTVD-TV Raleigh-Durham, N. C. 413,663 49th KFRE-TV Fresno, Calif. 246. 862 84th

Capital Cities Broadcasting has five non-broadcast interests. Capital Cities' major holding is the 100 percent ownership of Fairchild Publications, Inc. , a publisher of trade journals and magazines. Capital Cities owns 80 percent of Pontiac Press Co. , Pontiac, Michigan. The other interests include a three percent interest in Broadcast Music, Inc. ; a 5. 9 percent interest in Laser Link Corp. , a firm founded to develop new technology for over-the-air television transmission; and a 40 percent interest in New York Subways Advertising, Inc.

Detailed information on the project agreement is set out in the December 30, 1970, amendment to the transfer application, which is on file at the Federal Communications Commission.

[161] FEDERAL REGISTER VOLUME 36 • NUMBER 42 Wednesday, March 3, 1971 • Washington, D.C. PA R T II FEDERAL COMMUNICATIONS COMMISSION

Primer on Ascertainment of Community Problems by Broadcast Applicants

m

Ra. 43— Pt n 1

[162] 4092 NOTICES Commlsalouer Bartley, received copies treated differently than commercial FEDERAI GOMMINKATIOIIS of both stages of the proposed Primer stations. Thus, the suggested extension and oonunmted eitaulvdy uptm both. of the Primer to Include educational W e have given its comments careful con­ stations Is beyond the scope of the COMMISSION sideration, W e conclude, thwefore, that Notice and will not be considered here.' [Dook«tNo, 1M74; FOO 71-176] the procedure followed has not dented 8. W h a t the Bible Gaya, Inc. (WTBSI), PRIMER ON ASCERTAINMENT OP B E S T or any other party procedural or requests that Answer 1(a) be amended substantive due process. to exempt from the Primer’s require­ COMMUNITY PROBLEMS BY 4. The comments filed In this pro­ ments applicants that are religious BROADCAST APPLICANTS ceeding have beat very helpful to us and organizations proposing "noncommercial many changes have been made in the specialized religious programing on a Report and Order Rdmer as a result of those comments. 100 percent sustaining basis.” W T B S I ’s 1. iTie Commission has before it: (a)However, ma n y comments were adopted position Is founded in the First Am e n d ­ A Notice of Inquiry, 20 F C C 2d 880, only in part or were rejected. For those ment to the Constitution, which pro­ adopted December 10, 1969, in which a whose comments fall in the latter cate­ vides in part that, "Congress shall make Primer was proposed to clarify and pro­ gory, we have tried to lie explicit as to no law respecting an establishment of vide guidelines as to the Commission’s our reasons for rejection, but specific religion, or prohibiting the free exercise requirements and policies with respect variations of a particular concept m ay thereof • * W T B S I ’s concludes, in to the ascertainment of community not be separately discussed. One con­ light of that language, * that the problems by broadcast applicants; and sideration should be kept in mind that imposition of any rule or issue which (b) comments and reply comments filed is generally anpHcable. The Primer is seeks to compel an establishment of In response to the notice/ The Primer, applicable to all classes of broadcasters religion’ to ascertain community prob­ as revised upon consideration of those filing specified applications. ’Thus, It lems, * * * is a direct violation of the comments. Is adopted by this report and applies to a group of operations that First Amendment.” (Emphasis in origi­ order as set forUi in Appendix B. vary widely with respect to the area and nal.* WT B S I edso reasons that since Uie a. This proceeding was Initiated at the population they propose to serve, the Commission has exempted educational request of the Federal Communications number of competing broadcast serv­ applicants from conducting surveys due Bar Association, The F C B A was of the ices, and potential revenues, profits or to a presumption that there is a need for view that the Commission’s standards losses. The Primer must be, of necessity, speoiidized educational programing, a with respect to part I of sections IV-A broad enough to encompass that di­ similar exemption should be available to and rV-B of Uie Commission’s broadcast versity. W e recognize that there are sev­ noncommercial religious applicants based application forms had been given differ­ eral areas covered in the Primer where on the ' need for specialized religious ent interpretations by applicants, m e m ­ more specificity might be viewed by some programing. as desirable. But the diversity is too bers of the FC B A and the Commission’s 7. In dealing with the Establishment staff. Clarification was therefore re­ great, and attempts to establish more quested. A tentative Primer answering precise criteria raise more questions and Free Exercise Clauses of the First commonly raised questions with respect than are answered. Moreover, In times Amendment, the Supreme Court has at­ to those standards was prepared by the when problems, needs and interests are tempted to steer a neutral course. Due to staff. Commissioner Robert T. Bartley, constantly changing, we believe that we the difficulty of reconciling those two who has long been active In the evolu­ must retain a degree of flexibility. Guide­ clauses, a clear standard or formula that tion of ascertainment policy, discussed lines that are too specific ma y result in is generally applicable has not been that Primer with representatives of the too rigid an approach. Nonetheless, the evolved, and case-by-case decisions ap­ F C B A on December 2, 1969. The matter amended Primer, in our view, wUl aid pear to be the rule. Recently, in Walz v. was further discussed by the Commission broadcasters in being more responsive Tax Commission, 397 U.S. 664, 90 S. Ct. on December 19, 1999. As a result of to the problems of their communiUes, 1409 (1970), the Court stated : those meetings, the Primer was modified add more certaTnty to their efforts in meeting Commission standards, make Tbe general principle deduclble from the and issued along with the notice, First Amendment and all that has been said 3. Black Efforts for Soul in Televisionavailable to other interested parties by the Court is this: that we will not tol­ (BEST), had asked for and had been standards by which they can Judge ap­ erate either governmentaily established re­ denied access to the meeting of Decem­ plications for stations licensed to their ligion or governmental Interference with re­ ber 2, 1969. B E S T contends that Its ex­ community, and aid our staff in apply­ ligion. Short of those expressly proscribed clusion from a meeting where the legal ing our standards uniformly. With these governmental acts there is room for play in representatives of the Industry were considerations in mind, we turn now to the Joints productive of a benevolent present, denied it (BEST) and similar the specific questions. neutrality which will permit religious exer­ cise to exist without sponsorship and with­ groups the opportunity to effectively A. General out interference. (307 U.S. at 660, SO B. Ct. present their views. Therefore, B E S T at 1411-13) alleges that the origins of the Primer are 5. Question and Amwer 1.Those ap­ clouded by ex parte processes. B E S T plications to which the Primer Is appli­ Earlier, in Everson v. Board of Educa­ seeks access to the "original formula­ cable are specified in the answers to tion, 330 U.B. 1, 67 S. Ct. 504 (1947), Question 1.* Answer (la) specifies ap­ tion of a policy." However, the Primer the Court said: is a statement intended to clarify and plications for construction permits for provide guidelines as to Commission new broadcast stations but exempts The "establishment of religion" clause of policies and requirements. As such, It Is applications for noncommerciEd F M the First Amendment means at least this: and television channels. Several parties Neither a State nor the Federal Government neither an adjudicatory proceeding nor can set up a church. Neither can pass laws a restricted rule-making proceeding have suggested that all new applicants, which aid one religion, aid ai: religions, or under our rules, see tS 1.1201-1.1251. including educators, should be required prefer one religion over another. (330 U.S. to ascertain community problems in the at 16, 67 S. C t.atS il) Moreover, B E S T subsequently met with manner described in the Ptlmer. H o w ­ ever, it is the purpose of this Inquhbf ■ Appendix A lists the 61 parties filing com­ to provide clarification and guid^lnes > Mr. Davidson has suggested that CATV ments. One party, Flereon, Ball & Dowd, filed systems be required to ascertain community a request for declaratory ruling, pursuant to with respect to (xmunercial applicants. problems. That, too, is beyond the scope of section 1.2 of the Commission’s rules. If a Given the reservation of channels for this proceeding. party consists of two or mors entitles com­ speclsdlzed kinds of programing, edu­ • WTBSI apparently uses the phrase menting jointly, the names of the entities cational stations manifestly must be "establishment of religion" in the sense of are listed under the name of the lead entity. a place or organization where religion is The short designation of every party In the ■ Section rV-A is submitted for AM or m practiced, rather than in the sense of gov­ present document appears in parentheses stations, while seotlon rV-B is submitted for ernmental creation or support of a religious following the full name in Appendix A. television stations. organization.

FEDERAI REGISTER, VOL. 36, NO. 42— WEDNESDAY, MARCH 3, 1971

[163] NOTICES 4093 In our view, exempting religioue organi­ unless the information is requested by not likely to be great In the near future, zation# ttmt are mppiUgant# tar broudowt the Coimniasloo.*** It cannot be argued with an but a few VH P télévision, most statUma firain the uecetflnmmt prooeu, that a 60 percent Increase in area Is not A M and ma n y P M stations no w having while «rnpnsdny aooh leWiemcnte on "subatuitlal.” Therefore, Wds concept is maximum or near-maximum facilities. other commerdal ewdlcmntA would within the terms of the existing form. Second, a station^ primary bbllgatlon is serve to aid the rellgioue appUeant. an W e also note that our requirement is well to its city of license, with oM y a second­ obvious departure firam the neutrality within the discretion afforded by the last ary oUlgatlon to other areas within its required by the Court. As to W T B S T s clause in the quoted language. Conse- field intensity contours. It becomes vir­ analogy of religious and educational ap> quentty. In our view. Budget Bureau ap­ tually impossible for a station in a major pllcante, the First Amendment does not proval is not required, it has also been market to serve every political subdi­ prohibit government aid to, or Inter- noted that under the proposed wording vision that receives its signal if service ferouse with, education, so that the of Answer Kb), a change that would re­ is defined as being responsive to c om­ analogy must fall. Since there Is a ra­ sult in coverage of a new area that is 66 munity problems. Therefore, we have ac­ tional tMuds for applying different stand­ percent greater than that covered by the corded broadcasters considerable dis­ ards to eduoattonal as compared to com­ authorized facilities, but which also re­ cretion as to serving ouUying areas. mercial aMplicants, the distinction can sulted in a 10 percent loss area, would ’Thus, a Ne w York City broadcaster might not be classed as arbitrary. Accordingly, not require the submission of section IV, broadcast news and pubUo affairs pro­ we must reject WT B S T s suggestion. Of since there has been only a 46 percent graming concerning major events in course, consistent with our prior state­ increase. Answer Kb) has been reworded outlying cities or areas receiving its sig­ ments on the subject, religious organiza­ to avoid that construction, as follows; nal, but could hardly be expected to give tions that are ai^cants for, or holders (b) construction permit for a changein-depth coverage of local elections from of, Cotnmlsaloh authorisations ma y pre­ in authorized facilities when the station’s Connecticut to central N e w Jersey, A sent sectarian programs. They can not, proposed field Intensity contour (Grade Connecticut or Ne w Jersey station might however, turn their backs on secular B for television, 1 m v / m for FM, or 0.6 cover such elections, but we would not problems. For that reason, they must as­ m v / m for AM ) encompasses a new area fault a Ne w York City station that chose, certain community problems and devote that Is equal to or greater than 60 per­ in its discretion, to ignore them. Appli­ portions of their programing toward cent of the area within the authorized cants for major changes should refer to meeting those problems. field intensity contours. questions 6-8. 8. The exemption afforded educational 10. Several parties suggest that popu­ 11. Answer Kc): Change in station organisations filing applications for non­ lation, not area, should be the criterion location. Under this answer, applicants commercial edttrâtlonal stattans was used for requlrüig an ascertainment of proposing to change a station’s location. stated In proposed Answer 1(a) to apply community problems In gain areas. They In terms of the city of license, are re­ only to operation on noncommercial edu­ argue that it Is service to people, not quired to submit a new section IV, De m p ­ cational F M and television channels. As square miles, which should govern. Ho w ­ sey & Koplovltz proposes exempting of July 1970, there were 35 educational ever, that approach is not without its from this requirement moves from one stations operatbig on the A M band. problems. Moat importantly. It is admin­ city to another of a multiple, hyphenated Moreover, educational organizations istratively impracticable. In processing allocation, or within a metropolitan sta­ may ^ndy for noncommercial educa­ applications, a determination as to area tistical area. W e think the proposed ex­ tional authorizations on nonreserved Is relatively easy. Population studies, on emption is unwarranted. A station li­ channels. At present, there are 15 educa­ the other hand, require time-consuming censed to one community has a primary tional F M and eight educatlouEd televi­ detailed work, and we do not have the obligation to that community. If an ap­ sion stations operating on nonreserved staff to conduct such studies routinely. plicant proposes to shift that obligation channels. We believe, therefore, that the to another city, It should do so only As a general rule, there is a rough cor­ after becoming thoroughly aware of the exemption is more appropriately phrased relation between the area and the popu­ in terms of the nature of the applicant problems of the second community. See lation served. Daly tt Joyce points to one too. Question 6, below. and the proposed service. Finally, educa- extreme where the gain area is sparsely 12. Answerl (d) : Dat/ttme AJU stations tl(mal organisations are not required to populated.* Since a lesser standard is ap­ file part section XV, with respect to the seeking ftdltime facilities. The proposed I, plied to ascertainment of community Primer would require daytime A M sta­ other applications specified In the an­ problems outside the city of license, no tions seeking nighttime facilities to file swers to Question 1. Therefore, we will unduly burdensome requirement is im­ delete the parenthetical Insert from an­ part I, section IV-A. However, as noted posed on the applicant. (See Answer 7.) by the NA B and Daly & Joyce, the prob­ swer 1(a) and the following will be Of course, if there Is virtually no popu­ added; "Educational organizations filing lems of the community do not change lation in the gain area, an applicant ma y after sundown. The requirement that applicatiimB for noncommercial educa­ submit a showing to that effect, and be part I should be submitted will, there­ tional broadcast stations are exempt relieved of the Primer’s requirements, frmn the provisions of this Primer." fore, be deleted. However, the number B E S T and Georgetown University L aw of problems, and the approach to meet­ 8. Answer Kb): Applications /orCenter Task Force on the Mass Media ing them, m a y be substantially differ­ changes in facilities. This answer reflects (Georgetown), on the other hand, point ent if the station is able to increase our policy that applicants for changes to areas around major cities where slight its broadcast time. Therefore, we shall in facilities proposing to increase their extensions of the field intensity contours require suCb applicants to submit part area of coverage by more than 50 per­ encompass substantial new populations. i n of section IV-A. cent should ascertain the problems of the TTiat problem is not too significant for 13. Answer 1 (d) : Satellite television gain area. Metromedia states that tUs Applicants for satellite tele­ involves a change from the present forms two reasons. First, the incidence of fa­ stations. cility increases by large-city stations is vision stations are required to submit which have obtained approval of the Bu ­ section IV-B under Answer 1(d). Since reau of the Budget. Metromedia refers ■ Bee instruction two, section IV, PCO Form a station that is primarily a satellite to instruction two of section IV. That 301 and ttae cited sections of the rules. The does originate some local programing, instruction refers to the sections of the eo percent criterion is much the same as that the Primer’s requirements obviously ap­ rules that define major changes, tl 1.671 used in II 1.573 and 1678. There are, of plies to it. However, Dempsey & Koplo­ (a) (1), 1.572(a) (1), and 1.673(a) (1).In­ course, other applications that qualify as vltz suggest that 100 percent, satellites, struction two also states that applicants major changes under the rules, which do not require the eubmisslom of part I; for exsmfUe, that Is, stations originating no local pro­ for major changes are not required to a change of frequency. graming, should be exempt. Typically, file section IV "unless there la proposed • Brosdeasters may propose such ehsnges satellites are owned 1^ the parent sta­ a substantial change in programing, to Improve signal strength over their dty of license and adjacent areas. This may result tion. Since the parent should allocate increased facilities serving a substantial In an extension of the field intensity con­ WMne of their new# and public affairs amount of new area or population, or tours into areas with little population. programing to meeting the needs of the

FEDERAL REGISTER, VOL. 36, NO. 42— WEDNESDAY, MARCH 3, 1971

[164] 4094 NOTICES area served by the aatellite, the appli­ formation can be no older than oiu-hatt 18. In our view, a careful reading of cant mint ascertain the proUetns of the license period, or 18 months, at the the Primer would not warrant these In­ that area, Acecrdlugly, we believe that time of filing. terpretations, Prbblemm exist with re­ such appUcanta should sUbmlt a com­ 18. Metromedia notea In thla oonneo-spect to agricultural activities and we plete seotlon ZV-B. There are a few rare tien the instructicos In section IV of the faU to understand why the language of cases where a 100 percent satellite Is program reporting form in assignm ent, the Primer would eetahlish doubts as to not owned by the parent corporation. transfer, and renewal apgdicatlone (FCC the need for broadcast matter to meet In these cases, a problem Is presented Forms 314, 316, and 80S respectively) to those problems. Nor do we understand since the satellite licensee Is not legally the effect that proposed asslgnon and a charge that communié problems affect in a position to control the programing transferors need not file section XV. the only limited portions of the community. of the originating station. Nonethetess, program reporting form (of which the Most problems directly affect all seg­ w e shall not exempt such stations from ascertainment showing is ZMrt I), if they ments of the community. Those problems the Primer's requirements. Because have filed a renewal application within that directly affect a lesser population such a satellite must rely on some agree­ the last 18 months. The significance of have an indirect impact on the larger ment with the originating station as to Metromedia’s reference is not clear. As communltir. As to the alleged imposition both revenues and rebroadcast consent, far as the present matter is concerned, of the Government's Judgment on the a woAing relationship must be estab­ assignors and transferors are not di­ broadcaster, we note that the choice of lished. As part of that relationship, the rectly involved at all, since they are not broadcast matter, whether it be enter­ licensee of a satellite would be able to required to file the ascertainment show­ tainment programing, public affairs pro­ provide news stringers, notice of signifi­ ing, part I of section XV, even if they have graming, public service announce­ cant upcoming events, and other m a ­ to file other portions of that section. If ments, or news, is left to the applicant's terial to the orlglnatii* station only Metromedia means that the same 18- discretion. Within broad limits, the per­ if he is sumclently familiar with the month principle should be extended centage of these kinds of programing community he serves. The Primer forces generally so as not to require a new is also left to the applicant. The Judg­ an awareness of the problems of the showing if one has been filed within that ment "Imposed" by thé Commission is community on such a licensee, so that period, this argument must be rejected, no more than requlrtaig broadcasters to there is good reason for requiring, him for reasons stated in the preceding be responsive to the problems of their to ascertain community problems in ac­ paragraph. communities. That Judgmmit is required cordance with the requirements of the 17. under the Communications Act. Primer. Question and Answer 3: The pur­19. T he above serve only as examples 14. ATWioer Ke); Beneiuol appHca-pose of section IV.In the past, we have of the statements submitted. While we ffons. W e have concurrently released genercdly stated that the purpose of sec­ believe that most of the interpretatlcms today a Notice of Inquiry and Notice of tion rv was to show what the applicant given to Question and Answer 3 are not Proposed Rule Making, FCC 71-156, had done to ascertain the needs and in­ warranted. It is obvious that the pro­ Docket No. 19163 and a Notice of Inquiry, terests of the community to be served posed language has provided confusion F C C 71-169, Docket No. 19164 in which and the broadcast matter he proposed to among the commenting parties, rather new standards are to be considered for meet these needs and interests. However, than the clarification we hoped to bring the licensees of operating stations. Since our experience has shown that a large about by issuing a Primer. Accordingly, different standards are under considera­ segment of the broadcast Industry some revision is in mder. Westtnghouse tion, we have revised the Primer to delete has steadfastly interpreted communltÿ recommends the phrase "problems and references to renewal applicants, reserv­ "needs" to mean program preferences. issues," as a broader substitute, and the ing Judgment in this regard until we W e are shown, for example, communities Mexican-American Committee suggests have reviewed the comments filed in with "needs" for more country and "needs, interests, and problems." As be­ those proceedings. W e shall not further western music, or for more sports pro­ tween the two, we believe that the latter comment about the revisions caused by grams, but which apparently are not be­ is more in keeping with our policies. the deletion of renewal applications, ex­ lieved to have needs for Improved schools, Again, to emphasize that we are not pri­ cept to the extent that it ma y be reqidred roads, or welfare programs. Therefore, marily concerned with program prefer­ for clarity. However, as an interim meas­ having failed, in large measure, in our ences, we think it apprwriate to use the ure untU other standards are adopted, earlier efforts to Impress upon applicants phrase "problems, needs, and interests." renewal applicants will be required to that the phrase "community needs" For the reasons set forth in paragraph comply with the Primer. encompasses a much larger area than 60, we will also indicate at this point that program preferences, we sought in pre­ the phrase "to meet emnmunity prob­ 16. Question and Answer 2. In thisparing the Primer to use a new word to question and answer we have attempted lems" will be used to include the ob­ emphasize our intent; hence, "problems." ligation to meet, aid in meeting, be to consider our need for current informa­ A review of new and changed applica­ tion without requiring the broadcaster responsive to, or stimulate the solution tions filed since the proposed Primer was for community problems. Accordingly, to unnecessarily duplicate recent efforts Issued indicates that the use of the word in ascertaining community problems. Our Answer 3 will be changed to read as Is having the desired effect. W e were follows: conclusion was that if the same applicant careful to state In Answer 3, that the had provided a complete section IV Answer: To show what the applicant has word "problems" as used in the Primer done to ascertain the problems, needs and within the previous year, he would not would be considered by us to be generally interests of the people of his community of be required to repeat the process. The synonymous with "community needs and lioense and other areas he undertakes to N A B states that this Is unnecessarily interests." Despite this explicit state­ serve (sea Question 0, below), and what short, and recommends 18 months. W e ment, those filing comments universally broadcast matter he proposes to meet those will retain the 1-year standard, since, in interpreted the wording of Answer 3 to problems, needs and Interests, as evaluated. our view, the information submitted be a major shift of Commission policy. The word "problems" will be used sub­ would otherwise not be current enough sequently In this Primer as a short form of For example, one broadcaster states that the phrase "problems, needs and Interests." for us to make an Informed Judgment. It "the limitation of the term to The phrase "to meet community problems” should be noted in this respect that an 'problem' • * • creates doubts as to the will be used to Include the obligation to applicant can begin preparation of an needs for instructional, a^cultural and meet, aid In meeting, be responsive to, or application up to 8 months prior to the other special kinds of programs." Others stimulate the solution for community filing of the application. (Bee Question have charged that the "prOblem- problems. 15, below.) If the N A B ’s proposal were oriented" approach of the Xhimer e m ­ 20. Question and Answer 4: How the adopted, we could conceivably be grant­ phasizes matters having utility for ascertainment of problems is to be made. ing applications on the basis of informa­ limited segments of the community and Several parties noted that parts of An ­ tion up to 2 years old at the time of filing, that, In effect, the Primer unduly I m ­ swer 4 are repeated in sub»quent ques­ and older at the time of grant. Under tions and answers. They recommend, poses the Judgment of the government therefore, that revisions be made to avoid the standard we have chosen, that in­ on broadcasters. those repetitions. We concur in that view

FEDERAL REGISTER, VO L 3 6 , N O . 4 3 — WEDNESDAY, MARCH 3 , 1971

[165] Nonces 4095 a M iMlIfiv» ib M It «ouki b* «Mvaprtato oelves the statian’s sJgnaL) Thus, the from the transmitter site.' T h e word tomalMttié«iwnr*faiMnlaUtMaeitfc, Frlaer le f a m d to Owethin 1(A) (21 of "major", oa v # use tt h e m 1# relative. iMTliw the daUO* e t ham th* aspUcant secUooIVCAaadB) when the appUeant Thu#, a dty of n e tJent# might be g o M abolit aioirtrtiilnifrtiin w m ltafpRob- is raguaetad to set forth the othar anas ooDstdered aalnar for a etotka Uoemsed lama to «uhaaqnwit «Mattona and an- or ho Undertake# to serve. to urn Angde#, btti a dty of 19,000 ma y nrera. fiovonl braadeaatats oom m antad Several other formula# have been sug- be considered major for a station that CQDMdtatloiia irtth the general ihü>- geated by those submitting comments. licensed to a dty of 25,000. An oppUeant's Ue wera. in their vlav, unnaoeuaiy, con­ The variety of those suggestions empha- showing in this regard might be that the fusing, or served no puipoee. W e have sixes the dUDoulty in eetabUstalng a stand­ major dty in the outlying area has sev­ imposed this requirement on the assump­ ard that differentiates on appUeant’s pri­ eral broadcast station# In the same serv­ tion that members of the general public mary and secondary obligations with re­ ice licensed to It, or that the reddents may peroMve eommaniW proUema dif­ spect to stations In such divmwe cities as of that major dty turn to the stations of ferently thui community leaders. Ur. Chicago and Mile# City, Mont. another closer city for their broadcast Baldwin, In his commenta, submitted a 23. There are, of course, limits on the service. Accordingly, Answer 0 will be study of Columbia, Md., that supports applicant's dtsereUon. A M stations that amended as follows: that MJitiwpUftn. Therefore, the require­ are licensed to two or more communities Tea. Of oourse, an appUoant’a principal ment of oonsultatioDs with members of must, of course serve all those communi­ obligation U to saoartaln tbs problems of bis the general pubUo will be retained. W e ties. F M or television stations that oper­ city of license. But be Should also ascertain will also add language to Answer 4 to ate on channels allocated to two cities, the problems of tbs other oommunltles that m a k e clear that the word "group" is Minneapclis-St. Paul televtsl

KDEKAL RECiSTER, VOL 34, NO. 42— WEDNESDAY, MARCH 3, 1971

[ 1 6 6 ] 4096 NOTICES with community leaden who can be a- pubUcatlona and mu c h of It la business minutely or detmied information os to a pected to have a broad overview of com­ oriented. Nonetheleaa. m a n y provide eommunito'# oompoaitiai. A# (Uwuued in munity problème would be suffleient. We outline# of local govenunent, Hat# of conjunction vrith Question and Answer believe this will provide more goidanoo aohoola, and Hat# and total membenhip 18(A), tboae community letdeiB who are to applicant# than the Initially propoeed of benevolent, fYatemal, rdlgloua, buai- oonBUlted Bhould be Choeen on the basis language, m view of the above, Answer 7 neaa, civic, profeaatonal, labor and mia- of the compoeltion of the coinmimlty. For iB revised as follows: oCUaneoua organlaatlmu. The aeoond exwnple, we would expect consultations Answer: No, NormsUy, consultstlons with criticism was made by several partiea with labor leaders in cities with indus­ community Issders who can he espeoted to w ho claim that information from the tries that are typically unionised. On the have a broad overview of community prob­ Census Bureau is too general and not other hand, labor leaders would not nec­ lems would be BuOolent to ascertain com­ sutDoiently current at. the end of the essarily be a part of the ascertainment munity problems. decade to be of use. This is not, in fact, process of a station licensed to a subur­ 26. Question and Answer i: Ascertain­ the case * The Census Bureau periodi­ ban "bedroom" community or a retire­ ment in "gain" areas. Because the first cally publishes updated information and, ment community. Thus, for our purposes, sentence of Answer 8 repeats the criteria far from being too general, provides ex­ it is sufficient to provide data indicating discussed in Answer Kb ) , our comments tensive detail. While the Primer permits the minority, racial or ethnic breakdown with respect to that, answer (paragraphs the use of on outside organization to of the community, its economic organiza­ 9 and 10, above) will not be rweated compile this information as to a com­ tions; and any other factors that make here. As to the extenidveness of the as­ munity’s composition, in our view, the the particular community distinctive. A certainment In the gain area, upon ready avallabiUti' of the sources of that retirement or university community which several parties commented, the information make such studies easily would be examples of the latter. W e are answer is revised to refer the applicant within the resources of all broadcast not concerned with minutla, and those to Answer 7. applicants. challenging an applicant’s showing must 27. Question and Answer 9: Determin­ 28. Another problem that we have withdemonstrate that the wplicant has failed these criticisms is that we do not require to recognize a significant group. It should ing the composition of the city of license. be noted that if an applicant finds that As previously noted, there are two broad there are ten labor unions in the com­ parts to ascertaining community prob­ *As an example, the Census Bureau pe­ munity, the "group " we consider signifi­ lems; consultations with community riodically Issues the County and City Data leaders and consultations with members Book—A Statist leal Abstract Supplement. cant is that of unions generally, and of the general public. The applicant is This publication does not contain the most each union is not considered a separate expected to choose members from each detailed Information published by the Census group. However, we would expect that if of those brood groups that refiect the Bureau. However, the following partial list­ there are a substantial number of unions ing of data set forth there as to cities is in a communier, the applicant's ascer­ composition of the city of license. O b ­ Indicative of the extensive Information that tainment process would include more viously, an applicant does not rely on a Is readily avsUoble: total population; land than one union or a group consisting of random sample to choose community ores; population density; percent nonwhite; more than one union, such as a Labor leaders. Bather, he is expected to con­ percent Negro; percent foreign born; total tact leaders of each significant group foreign born; country of origin as a percent Council, if there is one. within the community.* Thus, in refer­ of total foreign stock; median age; percent 29. Georgetown suggests that we ence to community leaders, we were under IB years of age; percent 85 years of should indicate that the data used age and over; population per household; os should be as current as possible. W e will speaking of a "statistically reliable.sam- to persons 35 years old and over, the median so indicate in Answer 9. Apparently as pllng" in the proposed Primer, only in number of school years completed, the per­ a means to an end, Georgetown and the sense that it denoted one means of cent completing less than 5 years of school; other parties also suggest that language determining what significant groups are as to persons 6 to 34 years old, the percent found in the community; that is, its enroUed in all schools and in private schools; be inserted to the effect that submission composition. Answer 9 also gives exam­ percent of work force employed in manu­ of a "strong showing" as to the composi­ ples of other means of determining the facturing, retail, wholesale, and white collar tion of the community will be a signifl- composition of the community, includ­ occupations; total income; median family In­ oant factor in considering performance come; percent families earning less than when applicants are Involved in compar­ ing data from the UB. Census Bureau, 83,000: percent of families earning #10,000 or ative proceedings. We do not believe that which, of course, bases its information more; total number of housing units; num­ these suggestions are appropriate. A n on statistically reliable surveys. Data ber of manufacturing establishments; num­ from the Chamber of Commerce or other ber of employees; number of production applicant has either shown consultations reliable reports or studies m a y also be workers; total payroll and wages; number of with leaders of significant groups within used to assist in determining the com­ man hours; value added by manufacture; a community and with the general pub­ position of the community. T w o criti­ total and per capita retail sales; number or lic or he has not. Moreover, the perform­ retail establishments; number of retail em­ ance that concerns us is not the degree cisms have been leveled at these sources. ployees and payroll; number of establish­ of sophistication used by the applicant Bay Area T V comments that Chamber ments and sales of nine types of selected in obtaining data. Rather, it is his pro­ of Commerce data Is business oriented, businesses (data similar to those set forth posed programing. To make more clear so that the Commission is "saying that for retail trade are also given for wholesale the composition of the community shall trade and selected services) ; hospitals; total the kinds of data we require in the ap­ be determined by the business Establish­ general city revenues and breakdown as to plicant’s study of the composition of ment.” However, listing the Chamber of source; total city expenditures and a break­ his community, we have added the fol­ down as to disposition. Including public lowing sentence to Answer 9: "The ap­ Commerce as one source of data does not welfare, education, highways, health and plicant must submit such data as is lead to the conclusion that it should be hospitals, police protection, are protection, necessary to Indicate the minority, considered the sole source of Informaton. sewerage, other sanitation, parks and recrea­ racial, or ethnic breakdown of the Moreover, those studies submitted by ap­ tion, Interest on general debt, outstanding community, its economic activities, gov­ plicants as to the composition of their debt, and city payroll. This Information Is respective communities indicate that given for every city with a population over ernmental activities, public service or­ Clmmber of Commerce profiles and city 36,000. Similar information Is ^ven for each ganizations, and any other factors or county, with more agricultural data, so that activities that make the particular com­ directories provide much useful informa­ cities less than 36,000 would be Included In munity distinctive with respect to its tion. Granted, much of that information the county portion of the publication. More composition.” duplicates that found in Census Bureau detailed Information oreource of information 30. Question and Answer 10: Mttst a as to other areas may be found in the compositional showing always be sub­ following Oovernment publications which ■ It should be made clear that the slg- may be available In local libraries or can be mitted. This question and answer have ninoanoe of a group la not determined solely purchased from the Government Printing Of­ been the subject of several comments by Its size, Whether a group U to be con­ fice; Statistical Abstract of the United States; which we believe are valid. In sum, these sidered "slgnUleant" may rest on several Directory of Federal Statistics for Local comments argue that the burden of de­ criteria. Including Its size. Its Influence or Its Areas, A Guide to Sources; Directory of Fed­ termining the composition of a particu­ lack of influenee In the community. eral Statistics for States, A Guide to Sources. lar community is not great; that such

FEDERAL REGISTER, VOL. 3 6 , N O . 4 2 — WEDNESDAY, MARCH 3, 1971

[167 ] NOTICES 4097

A determlOAtlon la ben eflclal In UiAt It already submitted a showing in good there are innumerable ways of organiz­ appriae» b < ^ the AppacAot and the faith, based on reliable data. It a sig- ing a licensee. W e are eetiting those Commlaelon o t .the «IgnWcan t groupa niflcant group has been omitted, a ebal- whose positioa Is blgh enough in the or­ wltWn aeommnnlty; thatnoeommanl^ lenger shotdd be able to easily show It. ganization to be BB effective voice in can be deeetibed ae "average" in compo­ Our approach Is quite consistent with the decision-malting process. W e b^eve sition; and, therefore, that each w p U - the statutory scheme. For example, those that the phrase "management-level em ­ cant àhotdd be required to aidmit a filing petitions to deny are requhed to ployees’’ is as precise as we can get, and showing as to the composition of his make specific allegations of fact suffi­ we wUl use tu t (Arase. community, rather than assume a minia cient to show that a grant of an aMPlica- 3B. N B C requests the addition of the facte showing if leaders of certain groups tion would be prima fade Inconsistent following language, "Consultations ma y are consulted. The merits of this posi­ with the public interest; see section. be joint consultations, as with c o m m u ­ tion are obvious. Suppose, for example, 309(d) of the Communications Act, W e nity leaders luncheons. ” W e are seeking an applicant showed consul tatlmis with are only asking a similar showing for the individual views of each community leaders of the Black community. The ap­ those challenging an applicant’s deter­ leader, from the standpoint of the par­ plicant would have made a prima facie mination of the compostti(m of the par­ ticular group represented, in an inter­ showing that be had, under the present ticular community. The last sentence of view with one of the principals or ma n ­ wording of Question and Answer 10, con­ the initially proposed answer 10 will be agement-level employees of the appli­ tacted leadms of racial and/or ethnic deleted, since, as noted by several parties, cant. If this can be done, consistent with groups. Nevertheless, there m a y be, for the thought expressed Is self-evident. our goal, by community leader meetings example, significant American Indian or Answer 10 is, therefore, revised as or luncheons, the apidlcant is free to Spanish-speaking groups within the follows: use this method. We do not, however, be­ community. W e would have no way of Answer; Yes. The purpose of requiring a lieve the matter to be so significant as ascertaining the presence of such groups determination of the community Is to In­ to warrant separate comment in the wltiwut Inforxaatloa as to the c o m m u ­ form the aiqiiicant and the Commission revised Primer. Georgetown requests nity’s composlticn. Since the burden of what groups comprise the community. The that Answer 11(a) be revised to make applicant must use that Information to select providing that Infonnation is not great, those who are to be consulted as representa­ clear that the phrase "prospective e m ­ we will require each applicant to submit tives of those grotqiB. That determination ployees’’ applies only to appllimnts for such a study. may be challenged on a showing. Including new stations. Our Intention is to limit 81. The Citieens Committee suggests supporting data, that a slgnlflcant group has the use of prospective employees to those that an apffiicant’s obligation does not been omlttpd. The "slgnllleance " of a group situations where an applicant is newly end with "estaldishment" leaders, and may rest on several criteria including Its sine, formed and has not yet hired a full staff. includes "vfduntary associations and its influence or lack of influence In the Answer 11(a) will be revised to Indicate agencies dealing with the needs of the community. that limitation, as fifllows: elderly, the indigent and the handi­ B. CONSULTATIONS W lTH COMMUNITY Answer: Principals or management-level capped, with wdfare associatkms, tenant LXAOKHB AND MEMBERS OF THE GENERAL employées. In the case of newly farmed ap­ groups, youth and student groups, and P ublic plicants who have not yet hired a full staff, civic - improvement organizations, tax­ principals, management-level employees, or payer groups, property owners associa­ 33. Question and Answer If (a) ; Con- prospective management-level employees, tions, and other groups organized for the suUation with community leaders. It Is must hs-need to consult with community express purpose of protecting particular our view that the princlpBls and the leaders. needs and interests." The question is management of an applicant should con­ 36. Question and Answer II(b).* Con­ whether those groups comprise a sig­ sult with community leaders. If nonde- sultations with members of the general nificant segment of the community, not clslon-nuUdng personnel, or some orga­ public. The applicant has a wider choice whether they fall within or without the nization or person other than the appli­ as to who can conduct (xmsultations "establishment", however that word is cant were used, the information that with members of the general public. The defined. Leaders of the listed organiza­ would be gathered would go through a answer will be revised to make clear that tions should be consulted, if they repre­ filtering process that might exclude much employees of the applicant that are not sent a significant group within tire valuable Inf («nation. It is doubtful that management-level m a y conduct consul­ particular community. Since all these a written rqiort can fully éonvey the tations with the general public. In addi­ groups or organizations listed by the nuances of any extensive conversation, tion, Answer 11(b) would permit the use Citizens Committee will not necessarily or the extent of the sincerity, frustration of a professional research or survey serv­ appear in all communities, it would be or anger that m a y be associated with ice. The Mexican-American Committee inappropriate to set them forth In a some community problems. Moreover, the has expressed its concern with Answer Primer that Is generally applicable. person-to-person interview with the 11(b) In that it might permit an appli­ 32. In referring to challenges to an ap­management of the station is more likely cant to use a professional service to avoid plicant’s determination, m a n y parties to establish a contact with the station in or minimize person-to-person contacts commented that more than an allegation the interviewee's mind. Thus, a c om­ with members of the less ozonized seg­ should be required, and suggested that munity leader knows someone to call if ments of the community. 'ITie concern is either the applicant should be assumed to he believes there are matters that war­ heightened by a fear that an applicant be correct, or that a challenger should rant further discussion. In this manner may not classify Mexican-American be required to make a showing with sup­ we believe that a.dlalogue can be estab­ leaders as community leaders, thus leav­ porting data. If we are to assume the ap­ lished and maintained between the com­ ing the Mexican-American community plicant to be correct, we assume away all munity and the decision-making person­ without any direct dialogue with the ap­ challenges, and, therefore, we reject that nel of the wplicant. This would be plicant. W e appreciate this concern, position. However, we believe that it is largely lacking if we permitted an out­ which, of course, might have been raised appropriate to change the word from side organization to conduct the con­ by other minority groups. If, however, "allegation" to "showing". This chimge sultations. W e recognize that principals such a group constitutes a significant emphasizes that those challenging do or management-level personnel may not group within the community, and an more than state that the applicant has be as expert in conducting consultations applicant falls to consult leaders of that omitted a significant group, Rather, they as some lower-level members of their group, his showing will be questioned by must , show that a significant group has staffs, or as those associated with a pro­ the Commission and Is potentially sub­ fessional research organization. On bal­ been omitted, by means of supporting ject to petitions or informal objections data. Bay Area ’TV criticizes this ap­ ance, however, we believe that the lack proach, stating that this places the bur­ of expertise Is outweighed by the factors from others. In addition, our concern den on the public to come forward with discussed above. with this problem is in part reflected in evidence that the composition of the 34. Welch & Morgan noted that the our discussion of what constitutes a "sig­ community Is not what the applicant phrase "top-level employees’' was not de­ nificant" group In footnote 9, above, and states it to be. However, the applicant has fined. It is difficult to be precise since in Answer 10. Furthermore, changes will

FEDERAL REGISTER, VOL 36, NO. 43— WEDNESDAY, MARCH 3, 197)

[168] 4098 NOTICES be made In Answer 13(a) as to the Iden- tion of the city of Ueense. The use of a search or survey services, we will specify tifloatlon of leaders of less formally pnfeeelonal teaearCb or survey oHvloe Is not that a "random sample” of the general required to meet Oanunlaeion standards as organlaed groups. Answer 11(b) Is, to ascertaining community prOtUems. The p t ^ c must be consiUted, References to therefore, revised as follows: appUcant will be responsible for the relia­ a "representative range” or to a "statisti­ Answer: Prinolpsls or employsM. In the bility of such a service if it Is utilised. cally reliable sampling” will be omitted. ease of newly formed appUcsnts who have For our purposes a random selection ma y hot hired a full ateS, principale, emgloyeee, 38. Questionanct Answer 13(a) : Which be taken from a city directory, or ma y be or prospective emplt^ew may conduct the communitv leaders should be consultedT done on a geographical distribution basis. consultations. If the consultations are con­ The answer will be changed to make dear Moreover, given the pervasiveness of the ducted by employees who are below the that the selection of community leaders telephone In this country, a random se­ management level, the consultation proceee for consultation Hows from the appli­ lection of names from a téléphoné direc­ must be supervised by prlnelpals, manage­ cant’s determination of the composition ment-level employees or prospective man­ tory is sufficient for our purposes. Since agement-level employees. Also, the applicant of the community. In addition to those the last sentence of the answer in the Ini­ may choose to use a professional research or leaders. Bay Area T V suggests that An ­ tial Primer has essentially been Included survey service to consult with members of swer 13(a) should be amended to indi­ in Answer 13(a), it will not be repeated the general public. cate that applicants should also con­ here. However, language has been added sult with four or five members of the 37. to Indicate that an applicant may, in Question and Answer 12: Use of rank and file of each group, as well as addition to a random sample, consult professional research organizations. its leaders. This position is based on the Most of the professional research orga­ with additional members of a particular belief that the leaders m a y view com­ group to obtain better insights Into their nizations that filed comments take the munity problems differenUy from the position that we should adopt rigorous particular problems. The language is members of those groups. However, to precatory in nature, and serves only to standards in order to assure that the the extent that their views m a y differ, sampling techniques are scientifically encourage applicants to take whatever the differences should show up In the steps he thinks is reasonably necessary to conducted and rüult in statistically re­ consultations with the general public. liable findings. Because no broadcaster make him better Informed. There is, therefore, no reason for im­ 41. Question and Answer 14: Number has as much expertise In sampling tech­ posing the suggested requirement, since niques as the professional research orga­ of persons to be consulted. The question it is essentially duplicative. of how ma n y to consult is a difficult one. nization, they urge for themselves a much 39. In our discussion of Question and larger. If not primary, role in the ascer­ M a n y of those filing comments requested Answer II, we noted that it was permis­ that specific figures be given. However, tainment of community problems. W e sible for consultations with the general have rejected the necessity of using such we believe that the question is not one of public to be conducted by those who were numbers, but whether the applicant has organizations, although they will be per­ not decisionmaking personnel of the ap­ mitted to assist in parts of the process. consulted leaders of the significant plicant, including outside professional groups found in the community. Since W e have taken this position for several services. The Mexican-Amerlcan C o m ­ reasons. Including our interest in estab­ consultations with members of the gen­ mittee, as a spokesman for a minority eral public wiU be by a roughly random lishing a direct dialogue between deci­ group that may lack formal organization sion making personnel in the applicant sample, that sample will generally re- in some communities, was concerned that fiect the community’s composition, al­ and the community. Moreover, the ascer­ a lack of easily identifiable leaders tainment of problems is the goal, and though, as previously noted, statistical might relegate the ascertainment of that accuracy is not required. In this regard, there comes a point of diminishing re­ group's problems to nondecisionmaking turns as to the sophistication of the pro­ numerical superiority, by itself, does not personnel or an outside professional automatically indicate a more represent­ cedures used to reach that goal. W e service. In this way, the applicant could believe that any problem of significance ative selection of community leaders or avoid personal consultations with such of the general public. The questions that will be uncovered by the procedures de­ groups, thereby avoiding the establish­ scribed In the Primer. While recognizing will be raised in this regard are; Have ment of the desired dialog between the community leaders from each significant that those procedures ma y not wproach applicant and the group. We would hope standards acceptable to a statistician, group been consulted? As to members of that applicants would not take such a the general public, has the applicant they will, for our purposes, provide the course of action. However, to allay the necessary information. Thus, imposing used a method that will result in a gen­ concern of the Mexican-Amerlcan C o m ­ erally random selection? Has the appli­ requirements that will assure stats ticOl mittee and of other similarly situated reliability serve little purpose. The costs cant elicited sufficient Information as groups, and to make clear that an appli­ to community problems in those consul­ of obtaining such information, there­ cant ma y not arbitrarily avoid personal fore, do not warrant the imposition of tations? Accordingly, Answer 14 will be consultations with significant groups be­ revised as follows: higher standards than those we have cause the group lacks a highly developed adopted.'* Question and Answer 12 have Answer: Ho set number or formula has formal structure, we believe that it Is ap­ been adopted. Oommunlty leaders from each been modified to more clearly indicate propriate to revise the answer to indi­ slgnlflcant group must be consulted. A suf­ the areas where a professional research cate that additional efforts m a y be ficient number of mMnbers of the general or survey service are permitted, but not needed to identify leaders of less or­ public to assure ft generally random sample ganized groups. This ma y require, as sug­ must atso be consulted. The number of con­ required, to enter the ascertainment gested by some parties, asking members sultations will vary, of course, wttb the size process, as follows : of the particular group to Identify those of the city In question and the number of Question: To what extent may a profes­ who they consider to be their local lead­ distinct groups or organizations. Ho formula sional rose arch or survey service be used In ers. Accordingly, the answer is revised as has been adopted as to the number of con­ the ascertainment process? follows: sultations In the city of license compared to Answer: A professional service would not other communities falling within the sta­ establish a dialogue between decision-mak­ Answer: The applicant has already deter­ tion's coverage contours. Applicants for sta­ ing personnel In the appUcant and commu­ mined the composition of the community, tions In relatively small communities that nity leaders. Therefore, such a service may and should select tor consultations, those are near larger communities are reminded not be used to consult community leaders. community leaders that reflect the commun­ that an ascertainment of community prob­ However, a professional service, as Indi­ ity’s composition. Groups with the greatest lems primarily In the larger community cated In Answer 11(b), may be used to con­ problems may be the least organized and raises a question as to whether the station duct consultations with the general public. have the fewest recognized spokesmen. will realistically serve the smaller city, or A professional service may also be used to Therefore, additional efforts may be neces­ Intends to abandon Its obligation to the provide the appUcant with background data. sary to Identify their leaders so as to estab­ smaller city. Including Information as to the composi­ lish a dialog with such groups and better ascertain their problems. 42. Dempsey & Koplovltz suggests that some formula be adopted as to the nu m ­ "F or example, CBS states that a profes- Qn®sfion and Answer 13(b) : ber of consultations In outlying com- slonal research organization estimated that a Which memoers of the general public munitiea. In view of the considerable dis­ survey of the Chicago area market could be should be consulted. In view of our dis- cretion afforded applicants in ascertain­ done for *78,GOO. cussion with respect to professional re­ ing problems in areas outside the city of

FiDERAL REGISTER, VOL. 3 6 , N O . 4 3 —-WEDNESDAY, MARCH 3 , 1971

[169] NOTICES 4099 license, see Questions, and Answers 6 and Professional research organizations In­ vocational training program despite a 7, above, we see no need for a formula. dicate that a sampling technique wherein high unemployment rate and a need 43, Question and Anstoer IS: Time of the person whose views are souedit Is to for the "iriHH offered by the training consultations. The proposed Primer spec­ voluntarily return a questionnaire by program. ified that consultations must be made mail produces a strong "cooperation 48. Other parties suggest that c o m ­ within 6 months before the filing of the bias" that renders almost meaningless munity leaders should be consulted as application invtdved. In our view, this the Information gathered by this to the kinds of programs best suited to requirement is an appropriate one, with method. Thus, we shall place no reliance meeting c o m m u n l W problems. Since an respect to the types of applications which on such a method.. That does not negate applicant will have a broader overview are covered Iv the Primer adcq>ted herrin the usefulness of questionnaires as a of commurdty problems due to the as­ (for new facilities and some major guide for consultations with community certainment process. Is more aware of changes, and the assignee/transferee leaders or where the method of collec­ the kinds of broadcast matter available portion of assignment and transfer tion from members of the general public from others, is more aware of his o w n applications). This should give the ap­ does not require the Interviewee’s vol­ resources for producing programs aqd plicant ample time to make the con­ untary return of the questionnaire by announcements, we see little need to sultations, evaluate the information mail. W e have also revised the answer consult community leaders as to the gathered, and propose broadcast matter to indicate that questionnaires are not kin^ of broadcast matter presented to basal on that Information. Language has a substitute for consultations with com­ meet community problems. Accordingly, been included in the answer to make It munity leaders. It should be obvious that the first three sentences of Answer 18 clear that it applies to licensees or per­ the questions used In the questionnaire will remain as proposed. mittees of operating stations applying must meet our requirements. For ex­ 49. Several parties commented that for increases in facilities. As revised, An ­ ample, questionnaires primarily seeking Answer 18 was unduly restrictive in that swer IS will read as follows: program suggestions or approval of a it seems to indicate that comments by a Answer: Applicants, Including licensees or preplanned program schedule are of lit­ particular community leader as to areas permittees of operating stations filing for tle or no value. In view of these co m ­ not related to his particular field were major changes, are required to conduct con- ments, Answer 17 will be revised as not acceptable. To clarify this point, sultatlona within sis (B> months prior to follows: Westinghouse, for example, suggests that Sling the application, Answer: Yes. A questionnaire may serve as the answer should be revised to indicate 44. Question and Anstoer Î6: Failure a useful guide lor consultations with com­ that "individual leaders m a y have sig­ to consult with representatives of a sig­munity leaders, but cannot be used In lieu nificant comments well beyond their nificant group. Question and Answer 16 of personal consultations. Members of the particular field." W e believe the point is general public may be asked to all out a wdl taken. While a leader in the educa­ were Included to counter the impression questionnaire to be collected by the appli­ of some applicants that because they did cant. If the applicant uses a form or ques­ tional field Is a useful source of informa­ not believe a certain group would be a tionnaire, a copy should be submitted with tion on educational matters, and while part of their normal listening or viewing the application. he should be encouraged to comment audience, the problems of that group about problems related to education, we need not be ascertained. This does not 47. Question and Answer 18(19): So­did not intend to Indicate that his co m ­ follow, however, since the solution to licitation of program suggestions. Sev­ ments as to areas outside the educational those problems m a y lie, in part, within eral broadcasters commented that pro­ field should be discouraged or were not the control of the group or groups that gram suggestions should be elicited from an appropriate part of the ascertain­ do constitute the station’s audience. The community leaders. In view of our ex­ ment process. ’Therefore, we have In­ necessary conclusion, if leaders of a sig­ perience that m a n y applicants have serted the following sentence after the nificant group are not consulted, is that translated "community problems’* into third sentence in the present answer: the ascertainment process is defective. "community program preferences ”, we "However, It is also recognized that in­ Thus, as recommended by Georgetown approach those comments with circum­ dividual leaders m a y have significant and BEST, the answer will be revised to spection. Badger Broadcasting has per­ comments outside their particular field, Indicate that the ascertainment process ceptively understood our concern, but and the applicant should consider their is not Just "subject to question,’’ as believes "that the goal of programing comments with respect to all community stated In the proposed Primer, but is de­ responsive to community problems would problems." fective. BE S T also suggests that not only be better served by realistic acknowl­ 50. The last sentence of the answer omission, but ’Tow representation," edgement of the relationship between now states that the applicant has the would make a showing defective. Again, problems and programing." W e recog­ responsibility to present broadcast mat­ w e believe the question should be gen­ nize that relationship, but believe our ter "to provide information on c o m ­ erally one of representativeness, not one encouragement of such comments may munity problems." As correctly noted by of specific numhers. However, it should tend to make consultations primarily a several parties, the broadcaster’s respon­ be noted that It is Impossible to require discussion of programing and program­ sibility encompasses more than provid­ a one-to-one ratio In terms of number ing preferences, rather than a discus­ ing information, although providing in­ because most people belong to several sion to ascertain community problems. formation m a y be a large part of that groups, and because groups vary widely Obviously, we do not expect an appli­ responsibility. ’Thus, it is appropriate to as to their membership. 'Thus, an appli­ cant to Ignore comments from the gén­ change the language to indicate that his cant wh o consults two leaders of a small érai public or community leaders as to responsibility is to present broadcast but significant group, and four leaders of the kinds of programing that they be­ matter to "meet community problems." a group that is 20 times as large, has lieve should be presented. W e expect, W e use the word "meet" to Include a a low representation of leaders of the however, that the applicant will guide responsibility to meet, aid in meeting, larger group. W e would not normally, the consultations so as to elicit c om­ be responsive to, or stimulate the solu­ however, fault such a distribution of munity problems. In this regard, if a tion for community problems. consultations. person offers program suggestions, fur­ 51. Question and Answer 19 (20) : The 45. Question and Answer 17 of the ther questionmg by the applicant m a y applicant who finds few commuaitg proposed Primer are directed toward re­ elicit a more detailed picture of c o m ­ problems. Several parties noted the newal applicants. ’They have been, there­ munity problems. Suppose, for example, omission of "members of the general fore, deleted from the revised Primer. a community leader states, " W e need public" from Question 19. The question 46. Question and Answer 17 (18) : Use more programs dealing with the activi­ will be revised to Include that phrase. of questionnaires. (Our subsequent dis­ ties of city government." Further ques­ Since Question and Answer 19 are di­ cussion will be correlated to the numbers tioning might reveal such problems as rected to the applicant In the process of the revised Primer. For clarity’s sake, poor community-poll ce relations, under­ of preparing his application, and w ho however, the number of the question of utilization of certain welfare agencies has had limited success in eliciting in­ the Primer proposed in the notice of in­ while other similar agencies were over­ formation, Answer 19 will be expanded quiry will be indicated in parentheses.) crowded. or low utilization of a city adult to point out some of the more co m m o n

FEDERAL REGISTER. VOL. 36, NO. 42— VFEDNESDAV, MARCH 3, 1971 No. 42—Pt. II a

[170] 4100 NOTICES pnotlcos that neult in inadequate re- vision. The ivplicant Is, of course, free to drcumstanoes. But the exigencies of the wonoea. Aoeordlngly, Q u m U o o and make such an attribution, as zeoognlaed nmnnesing Unas a n such that we do not Answer 18 wtU be revleed as follows: by the first sentwiee of Answer Si. The guarantee raeh a letter. Therefore, Question: If, In eonaultlnc wtth com­ üioÊoe of attributing speoiflc eomments Answer 84 win remain aslt Is, in that an munity leaders aqd members of tbe fsneral to eommunlty leaders is a matter left to applicant ma g be asked for en endana- publia, en epjrUesnt reoelses little Informa­ the applicant and tbe particular leader. tion where bis broadcast matter does not tion es to tbe esistenoe of eommnnlty prob­ a m e a r suffldentty zemonriTe to the eotn- lems, can be safely S M w rne tbat only a tew C. iRyouuTiON R icn v n munity probtama disclosed in his constd- problems exist? 54. Queirion and Answer 22 (23) ; List­taticns. Of course, in opidleatlons where Answer; No. Tbe assumption Is not safe. ing o/-aU ascsriofaed commimity prob­ The applicant Should reexamine his efforts a hearing is not otherwise required, the to determine whether his consultations have lems required. Several parties inquired appUcant.mustmake the required show- " been designed to elicit sufficient Information. as to what eonetttated a "significant” ing and he will be asked for an explana­ Obviously, a brief or ehsmoe encounter will proUem, or suggested definitions for the tion if he fails to do so. not provide adequate results. The person In­ word. However, other parties noted that 57. Question and Answer 25 (25): terviewed should be speffiffoally advised of the significance of a problem Is really What problems should be treated by the the purpose of the consultation. The appli­ part of the applicant’s evaluation, and appUcant. The FOBA, the NA B and BB & T cant should note that many Individuals, should not be included In questions and when consulting with broadcast applicants, all urge that Answer 35 be revised to either jump to the conclusion that the appli­ answers dealing with the applicant's in­ indicate that in making an. evaluation, cant Is seeking programming preferences, or formation-gathering process. Thus, we the appUcant ma y take into considera­ express community problems In terms of ex­ will revise Answer 23 to require that all tion the nature of its program format posure or publicity for the partloular group community problems the md>Ucant has and composition of Its audience. There or groups with which, they are affiliated. The ascertained be listed, with the exception was similar language in a prior draft of applicant may properly note these comments,of those that are dearly frivolous. There­ the Primer. That m a y well be a con­ but should ask further questions designed to fore, Answer 22 wiU be revised as follows: elicit more extensive responses as to com­ sideration, but our reastm for deleting the munity problems. Answer; All ssoertslned oommunlty prob. language of the prior draft, and for re- lems should be listed, whether or not he^ectlng the suggested language. Is that It 52. Question and Answer 20C2t) : proposée to treat them through bis broadcast is too restrictive. It indicates to us and, MenUftcaUon of communitv leaders con­matter. An applicant need not, however, list apparently, to broadcasters, as evidenced sulted. The puipoee of the Information comments os to community problems that ore clearly frivolous. by the comments that have been sub­ required in Answer 20 is to enable us and mitted, that a station need only meet others Inspecting applications to.be able D. T hx Appucation 's E valuation proUems directly related to the group or to determine whether those oommunlty 55. Question ond Anstoer 23 (24) ; The groups that comprise a large sème n t of leaders consulted are representative, and its audience. T he N A B suMests, for to provide a means of vérification if ques­ applicant's evaluation. The process of evaluation of community problems is the example, that a "rock” station, which tions should arise. Thus, additional in­ basis for Uie appUcant's ohtdce of broad­ has a predominantly young audience, formation as to tbe age of the community "would be most effective in treating leader and the address of his particular cast matter to meet those problems. As such, tbe process is left to the Ucensee's problems which are germane to tbat age organization are not required. In some discretion, with certain general excep­ group.” m our view, the station’s obliga­ circumstances; his hmne address ma y be tions, see queeticns and answers 24, 36, tion is clearly greater than to that group. necessary to clearly identify the leader, and 31. That discretion is impUclt in B y way cff Ulustratiim. suppose there is especially where the group he represents questions wid answers 23, 25, and 27. a city with three radio stattons, each lacks a formal onnmization. Since we Answer 23 wUl be revised to Incorporate of which has determined the composi­ h a w recognized that there ma y be co m ­ tiie somewhat broader definition of tion of its listening audiffiioe through munity leaders of groups that are not "evaluation” that constitutes the first market studies. One, a Bpanish-language oi^anizations in tbe sense that they have fuU sentence of Answer 23 of the pro­ station, finds that a large part of its a formal structure, see Question and posed Primer as foUows: audience is relatively poor. The second Is Answer 13(a), we will require Identifica­ a "rock” station with a youthful audi­ tion Iqr name, position and/or organiza­ Answer: Tbs sppUcant'a evaluation Is the proceee by which he determtnea the relative ence. The last presents "middle-of-the- tion. Thus, John Jones, Executive Vice importance of tbs community problems he road" popular music and has a generally President, 3CYZ Corporation, would be has ascertained, the timsllneu of the various middle cdass audience. In consultations an appropriate identification for a busl- comments, and tbs extent to which be can with communily leaders and the general oiess leader. John Jones, 123 First Street, present broadcast matter to meet the public, these stations have found that spokesman for welfare recipients, would problems. one of the city’s wrifare programs is be an appnmriate Identification for a 56. Question and Answer 24 (25) ; in­ grossly inadequate; that there is an el­ leader of a group lacking a high degree of clusion of the evaluation in the applica­ eemosynary organization that supple- formal organization. His address is re­ mmits the city’s program, but which quired because, in the city In question, tion. Answer 24 states that the applicant need not submit his evaluation with the would not totally alleviate the problem the group he represents has no ofQce as appUcation. The Mexican-Amerlcan even if it were working at full capacity; such, and there are several people with Committee and Bay Area T V otppoeed that neither the city program or the the same name living in the city. There­ eleemosynaiy organlzatlon'B program fore, Answer 20 is revised as follows: that position

FEDEKAL REOISTER, VOL 36, NO. 42— WEDNESDAY, MARCH 3, 1971

[171] NOTICES 4101 or classical music. Moreover,'the inade­ posing to treat onlv one or two problems. public service announcements, by defini­ quacy of the ci^’s wrifare program Several parties commeutlng on Question tion, ore announcements for w b W i no might well be a topic of news, discussion, 26 believed that “several” oommunlty charge la mode.*^ The F C B A further and editorials on all three stations. Ho w ­ problems indicated too restricted a range notes that a sponsored program Is a rec­ ever, we believe the applicant's knowl­ and that "many”, "numerous ', or "a ognized vehicle for meetipg community edge of his audience may properly be number of” community problems reflect problems. The FCBA. and others suggest used in the following manner. The sta­ more accurately the condition of our that a wonsored arid làuponsored an­ tion with an audience that has a large commimlUes today. W e do not believe nouncement can meet community prob­ PFoporttmi of poor people might empha­ the distinctions to be that important, lems with equal efficacy. The NA B states size the services available, the criteria for but will use the latter phrase. W h a t is that, "Commercial sponsors are respon­ eligibility, and locations where those who important, no matter ho w one describes sible for airing of a variety of wot an­ are eligible should call or go to avail the number of problems extant in the nouncements covering such subjects as themselves of the services. The "rock" particular community, is that there employment of the handicapped, safe station might emphasize the need for comes a point where the applicant pro­ driving, fire prevention, minority job volunteers while the popular station poses to meet so few community prob­ training, air and water pollution, nar­ might emphasize the need for volunteers lems that his proposal is prima facie cotics information, etc.” W e believe that and for contributions to the program inconslst^t with the public interest. At the point is weU takmi, and Answer 28 sponsored by the eleemosynary organiza­ that point, the Commission and, per­ will be revised to read. "Programs and tion. These are offered only as possible haps, other parties will raise questicms announcements.” Our experience indi­ ways of meeting a community problem. about the applicant’s proposal. Most cates, however, that most "spots” that Innovative broadcasters would, no doubt, comments raised in corijunction with are designed to meet community prob­ have different points of emphasis or Answer 26 have been disposed of in our lems are public service announcements. other means of meeting the problems. discussion of prior questions. Question Sponsored announcements that meet While we believe that this use of the ap­ and Answer 26 will be revised, primarily community problems are relatively rare," plicant's knowledge of the characteristics editorially, to conform to that prior dis­ and applicants prcqiosing to meet co m ­ of his audience Is implicit in Answer 25, cussion, as follows; munity problems through extensive the matter is of sufflcient importance to Question: If an applicant lists a number sponsored announcements are reminded be made explicit by appropriate revisions of comnaunlty problems but In his evalua­ that the standard Iqr which they are in the answer. tion determines that hs will present broad­ judged is the public interest, not their 59. Answer 25 does rest on the appli­cast matter to meet only one or two of them, private economic interests. cant's good faith determination, which, would the proposal be defective? 63. Question and Answer 29 (SO) : Link­ Answer; A prima facie question would of course, gives him considerable discre­ arise as to how the proposal would serve the ing broadcast matter toith problems. tion. Thus, he m a y choose to meet as public Interest, and the applicant would have Paragraph 1(c) of section IV-A and IV--B m a n y problems as he believes he can. He the burden of establishing the validity of asks for "typical and illustrative pro­ m a y be selective, giving more extensive his proposal. grams or program series” the applicant treatment to those problems he believes plans to broadcast to meet cmnmunity most important or to nascent problems, 61. Question and Anstoer 27(28) : Pro­ problems. Aiwendlx B to the application which If not met now are llkriy to be­ portioning broadcast matter in relation forms indicates that the applicant’s come critical. Or he may recognize that to the number of people affected not program service (broadcast matter) is another station In the community tradi­ required, N B C comments that the pro­ to be related to the community problems. tionally presents extensive broadcast posed wording of the last sentence of Thus, Question and Answer 29 indicate matter to meet a particular problem. If Answer 27 indicates that "life or death” that the applicant must show what it is an important problem, and if the is an absolute criterion so that the appli­ broadcast matter is proposed to meet stations’ respective audiences differ only cant has no discretion. N B C ’s concern Is what problems, m order to determine slightly in their composition, the broad­ that a licensee wh o gives a higher prior­ the relationship between broadcast mat­ caster ma y decide to present some broad­ ity to the problem of pollution, which ter and problems, as required by A p ­ cast matter to meet that problem, but affects all people, than, to a traffic light pendix B of the application forms, we less than he would ordinarily due to the problem, which affects a very small nu m ­ must have more than general statements. efforts of the other station. In view of ber of people, but conceivably in a life- Therefore, Answer 30 requires the appli­ this discretion, we believe unwarranted dr-death manner, might be subject to cant to state the title, time segment, the implication read into answers 26 challenge. In our view, an applicant who duration, and frequency of broadcast of through 27 by some broadcasters, that a followed the priority suggested by N B C would be well within his discretion. Ho w ­ the proposed broadcast matter. Several station must program to meet most or all broadcasters commented that the re­ community problems. He may do so if ever, we believe the situation referred to quired information was too inflexible, he wishes. Other programing policies are in Answer 27 provides useful guidance and encouraged adherence to schedules within his discretion. There are, of to applicants and should be retained. We have revised the answer to indicate that and formats which became outdated due course, broad limitations, so that his dis­ to changes in the community and its cretion ma y be subject to review and in­ it is only an example and is not a limit problems. W h e n speaking of proposed quiries ma y be made by the Commission, on the licensee's discretion. Since the first sentence of Answer 27 repeats the programing, the requirements of Answer see answers 24 and 26. To be consistent, 29 appear too precise, especially in view the phrase "to deal with all community definition of the “applicant's evaluation” that no w appears in Answer 23, it will not of the length of the license period. W e problems’’ appearing in Question 25 will believe it appropriate, therefore, to in­ be changed to "to meet all community be repeated here. Therefore, Answer 27 will be revised as follows: dicate that changes in broadcast matter problems.” Therefore, Question and An ­ throughout the license period m a y be swer 25 will be changed to read: Answer: No. For example, the applicant. In warranted. his evaluation, (see Question and Answer Question I Must a n applicant plan broad­ 23) might determine that a problem con­ 64. The comments on Question and An ­ cast matter to meet all community problems cerning a beautification, program affecting swer 29 were usually combined with pro­ disclosed by bis consultations? all the people would not have the relative posed Question and Answer 33. The latter Answer: Not necessarily. However, he is Importance and Immediacy of a problem re­ discusses specific examples of overly expected to determine In good faith which lating to Inadequate hospital facilities af­ of such problems merit treatment by the sta­ broad descriptions which sometimes ap­ fecting only a small percentage of the pear in applications, that are Inadequate. tion. In determining what kind of broadcast community, but In a llfe-or-death way. matter should be presented to meet those W e believe it is appropriate to combine problems, the applicant may consider his E . B roadcast M atter P roposed to M eet those examples as a part of Answer 29, program format and the composition of his THE P roblem s as E valuated oudlence, but bearing In mind that many problems afreet and are pertinent to diverse 62. Question and Answer 28 (29). » See deOnition 13, section IV-A and groups of people. “Broadcast matter” was defined in A n ­ XV-B of the ftM»Ucatlon forms. M Public safety announcements sponsored 60. Question and Anstoer 26(27) : swer 28 as programs and public service by Insurance oompanlee provide one of the Questions raised as to the applicant pro­announcements. The FGBA notes that more common examples.

FEDERAL REGISTER, VOL. 36, NO. 42— WEDNESDAY, MARCH 3, 1971

[172] 4102 NOTICES and eliminate proposed Question and An ­ ance on announcements, considerable wltbm a community. InltlaUy, this la a mat­ swer S3. Acoorittntfy, Qua#üom and An ­ dlseretion Is Implicit, and we beUem ao ter thm* tolls wltniB the disorettcm ot the appBooot, B o w m r . whore the amount of swer 39 wOl be revised as fUUowa:. revision* are required. Xtev. Stodklord h w adnaet msMee peopmed appeals pMwntiy QOMtton: IB «U anpUestion, mustU mm suggests that a separate poUoy statement lasuBleient to mao* ffigniaeantty # e com- b* a tbowUic a# to wbat tooodMst msttor Should be submitted with the wpUoatton Bundty pcaUane Oaclessd by tbe applleaafs the sppUosnt Is propoBtng to meet what as to the eppUcant’s policies on the se­ cnnsnltattcBe, ha wiu be eaked tor an problem? lection, pteoement and utilisation of an- explanation by letter of Inquiry by the Answer: Tee. Bee Public Notice of August noiincemwits, and that these policies Oommleelon. - 33, IMS. POO BB-M7, 13 BR 3(1 1309. The should be made part of the license. Ho w ­ 68. Qttetfton and Answer 32 (34) : applicant ibould give tbe deeerlptlon, and ever, we are ooneamed here with the use Use anticipated time segment, duration and fre­ of station edttortals, W e have previously quency of broadcast of tbe program or pro­ of aimounoements as they ate used as Indicated that the appUcanth obligation gram aerlM, and the iwmmunlty problem a part of the applicant's general poli­ Is greater than providing Information on or problems that' are to be treated by It. cies on presenting broadcast matter to oonununlty proUems, Therefore, in ac­ One apiaoprlate way would be to list the meet community problems. W e do not cord with the wording of previous ques­ broadcast matter and, after It, the commu­ briieve that it is necessary to provide nity problem or problems the broadcast tions and answers. Question 32 will be separate policy statements on programs reworded to use the tdirase "to meet com­ matter Is designed to meet. Statements and announcements, since they are such as "(srograms will be broadcast from munity problems," rather than "discuss time to time to meet community problems," closely related. These policies are part and present Information on community or "news, talk and discussion programs will of tbe application, which is available for problems. ” B E S T and O eorgetow n both be used to meet community problems," are inspection at each staUtai, so there is request that it be made clear that edi­ dearly Insufficient. Applicants should note no need to state those policies on the torials cannot be used exclusively to meet that they are espected make a poetlre, dili­ actual license. To keep tlm wording con­ community prUMem*. 2h view of our posi­ gent and continuing effort to meet oommu­ sistent, minor editorial changes will be tion, set forth in paragraph 65, that, nlty problems. Therefore, they are expected made In Question and Answer 30. to modify their broadcast matter If war­ absent a qieclal showing, an applicant’s ranted In light of ffiumged community 67. Question and Answer 31 (32) : obligation indudes programs to meet problems. If amunmcements are proposed, Amount of time allotted to meeting com­com m unity proUems, it is clear that sole they should be Identified with the commu­ munitv problems. We are concerned here retianoe on editorials, which are typically nity problem or problems they are designed with the proportion of time that must be brief, wotdd be unacceptable. Therefore, to meet. devoted to meetmg community problems. Question 32 will be revised as follows: The very general guidelines provided by 65. Quesffon and Answer 30(31) : Questloa; Can station editorials be used Questions mited as to appffcanft propos­Answer 31 are Indicative of the dlfflmil- as a part of a lioenseels efforts to meet oom­ ing to meet eommunitg problems exclu­ttm in defining the applicant's Obligattcm munlty problems? it baa in this area. However, we are now con­ sively through announcements, sidering snne more definite guidelines. 69. Question and Answer 33 of the been pmiottsly noted that a Ilixnaee For the present, general guidlines must proposed Primer have been incorporated may meet community problems by an­ suffice. We will afford applicants consid­ and discussed in Answer 29 of tbe revised nouncements H well as programs. Ho w ­ Primer, ever, Answer 30 Indicates that. In our erable discretion. That discretion Is, of Judgment, sole reliance on announce­ course, subject to review If it appears to 70. Question and Answer 33 (35) ; Use ments raises a ipiestion as to the ade­ be InconEdstffiit wtth the public interest. of news programs. Answer 88 makes ex­ quacy of the proposai. O ur Judgment A previous draft of the Primer made plicit that news programs may, in part, is founded on the recognition that our such review explicit. Since we have be used to meet omnmunity problems. society is confronted with m a n y c o m ­ indiimted elsewhere that the applicant’s This position follows from the definition plex problems that (sannot be met by discretion can be reviewed (see questions of a news program: "News programs (N) tiie brief comment afforded Iv an­ and answers 24, 28, and 81) in situations include reports dealing with current, nouncements. Therefore, the broadcast­ where the proposals do not wpear con­ local, nathmal, and international events, sistent with the public interest, we did itududing weather and stock market re­ er’s stewardship of tbe frequency in­ not believe it necessary to restate that ports; and when an integral part of a cludes programs, as a general rule. Ac- news program, commentary, anidysls and cordinWy, we stated in Answer 30 that point in Answer 31. However; BE S T be­ before we make, a public Interest find­ lieves tbat the point Bhould be made sports." (Emphasis supplied) .** A report ing, we will place on the aimlicant pro­ expllidt to make clear the Commission’s of facts, in a general way, aids in under­ posing only announcements the burden concern that an applicant provide a "sub­ standing problems, but it is dear that of establishing the adequacy of his pro­ stantial proportion" of broadcast time news programs encompass more than re­ posal. Bonneville is concerned that An ­ toward meetmg community problems. We porting facts. Westinghouse believes that swer 30 m a y raise First Amendment will, therefore, revise Answer 31 to e m ­ this raises pniUems for stations propos­ questions since it "directs the licensee phasize tbat .the applicant's Judgment, ing an all-news format, apparently on the how to program his station." W e dis­ while afforded considerable latitude, ma y basis that "commentary (and) analysis, ” agree because the Commission's poli­ be subject to Commission review, if as "an integral part of a news" would all cies do not dictate the content of pro­ appropriate. N B C sufKCsts that the be logged as news. Such a station would grams or announcements. The courts standard should be "the good faith show, it is claimed, no public affairs pro­ have upheld our right to look at pro­ Judgment of the applicant, ” and that graming. This appears to be more a ques­ gram proposals and to make determina­ the only questions that can be raised tion of logging criteria than of the valid­ tions as to how those proposals serve should go to tbe applicant’s good faith, ity of Answer 33. Discernable segments the public interest, Henry et al. (Sub­ not his Judgment. Such a course of action of an all-news format that qualify as urban Broadcasters) v. FOC, 302 F. 2d leads us to an untenable result. It is public affairs programing” m a y be so 191, 23 B B 2016 (1062), cert, denied, 371 quite conceivable tbat a programing pro­ logged. Other than minor editorial posal appears on Its face to be Incon­ U.S. 821, 83 8. Ct. 37 (1962). See too, sistent with tbe public interest. W e do changes, we believe Answer 33 should National Broadcasting Company v. not believe it appropriate to drop any stand as it is. United States, 310 U.S. 190, 63 S. Ct. 907 71. Question and Anstoer 34 (36) ; (1943). W e believe the policy expressed inquiry as to that proposal on tbe show­ in Answer 30 Is well within constitu­ ing that it was reached In good faith. Specialised format stations. Here it is tional limitations, as defined by those The public interest demands more. made clear that the applicant's choice of cases. Answer 31 will be revised to read as format does not change his obligation to 67. NBC comments that Answer 30 follows; does not make it clear that some co m m u ­ Answer: There Is no single answer for all Tostruotiom 11(c) of section IV-A and nity problems m a y be best handled by stations, m e time required to deal with IV-B of tbe application forms. announcements only. Since the answer oommunlty problems can vary from com­ w See Instruction 11 (dj of sscUoii IV-A and only refers to those who place sole reli­ munity to community and from time to time IV-B of the application forms.

FEOEtAL REGISTER, VOL 36, NO. 42— WEDNESDAY, MARCH 3, 1971

[173]' NOTICES 4103 meet community problems. Our discus­ rules should be amended so that only feree would abandon, at least in part, sion In parwraphs 57 and 58, in con­ one-third of the stations in a particular the station’s present classical music for­ junction with Question and Answer 25, community would come up for renewal ma t and no other Atlanta station pre­ as to ho w an applicant ma y wish to em ­ each year. That suggestion, which cer­ sents similar material. A bearing was phasize certfdn aspects of a particular tainly has merit, can not be acted upon held to be required in the circumstance. problem, is equally pertinent here. The in this Inquiry. Other suggestions were 77. The Commission has not completed Question and Answer will be revised to directed toward revisions in the appli­ its review of this decision and its impli­ reflect wording previously discussed, as cation forms, which we also believe are cations, to determine what is required follows: beyond the scope of this haquiry. A nd under it in terms of the Commission’s Question: U an applicant proposes a finally, some comments were directed to­ obligations in passing on various types specialized format (aU news, rook and roll, ward major changes in Commission pol­ of applications. Therefore, and since the religious, etc.), must It present broadcast icy. For example, it was suggested tbat Primer is essentially directed at a dif­ matter to meet community problems? the Commission establish certain mini­ ferent subject and it is desirable to get Answer: Tes. The broadcast matter can m u m criteria as to the presentation of it out as soon as possible, we are not here be fitted Into the format of the station. public service programing during prime discussing this matter at length. Suffice 72. Question and Answer 35 (37) : time, which is contrary to our present it to say that any application involving BeZetiance of nonbroadcosf activities. policy as expressed in Question and An ­ a substantial change in program for­ Westinghouse believes that Answer 35 swer 36. Since the purpose of the Inquiry mat— including assignment and transfer discourages licensees from taking steps has been to provide clarification and applications (where this type of question in response to community problems, guidelines as to existing policies, and has usually arisen) and also applications other than presenting broadcast matter. since we are not convinced that such a for renewal or major changes in facilities In our view, the answer does not have policy change is appropriate, we have if they involve a basic programing this implication. Certainly, it is encour­ not discussed this and other suggested change— will be scrutinized in light aging to see broadcasters engaged in such changes in programing policies. of this decision; and applicants should activities, both for the benefits to the 75. Other parties have suggested addi­ be prepared to support their proposals community which result and for the in­ tional questions. These have been re­ to change formats in light of tire needs sight gained as to community problems jected mostly because they do not reflect and tastes of the community and the . byoy 1the broadcaster. Nevertheless, we be- Commission policy, or because the mat­ types of programing available from other ive that however commendable a li- ters raised are treated by the existing stations.” A careful reading of this deci­ insee's nonbroadcast activities ma y be, questions. Thus, for example, separate sion is recommended. public Interest finding with respect questions as to ascertaining the prob­ 78. As amended, we believe the at­ to tbe use of the frequency must rest lems of children are not warranted, since tached Primer serves substantially to upon how the broadcast matter presented an applicant would ordinarily consult clarify and provide guidelines for our meets community problems. W e believe adults responsible for children's care programing policies. As with our other this is axiomatic. The matter is raised to and education. Primers, revisions will be made from time counter a contrary Impression on the 76. Changes in- program formats; theto time where appropriate or necessary. part of a few broadcasters. T o bring 79. Under 1 1.622 of the rules, appli­ recent decision in The Citizens Com­cants who believe their showing is defi­ Question 35 into conformity with the mittee V. FCC. As should be clear wording of previous material, the phrase from our discussion of the various cient under the guidelines of this Primer, "to meet" will be substituted for “in deal­ questions and answers, the Primer m a y amend their application as a matter ing with." of right prior to designation for hearing. emphasizes community problems and Applicants in pending hearing cases ma y 73. Question and Answer 36 (38) : Time needs. It is only secondarily concerned of presentation of broadcast matter. An ­ amend their applications if deemed nec­ with the preferences of the people essary in view of our action here, within swer 36 reflects our belief that given the in the community or service area with diversity of stations, markets, and prob­ ninety (90) days of the release of the respect to program formats or the report and order„or such further time as lems, the time that announcements and type of entertainment programing they programs are to be presented is best left the presiding tribunal m a y allow for would like to receive. Our view has been cause shown. to the applicant with general limitation that the station’s program format is a that it should be presented at a time 80. In view of the above, the attached matter best left to the discretion of the Primer is adopted. when it could reasonably be expected to licensee or applicant, since as a matter be effective. Tbat limitation precludes of public acceptance and of economic Adopted: February 18,1971. the possibility, suggested by some parties, necessity he will tend to program to meet Released: February 23,1971. that the applicant would be free to the preferences of his area and fill what­ present all the broadcast matter that is ever void is left by the programing of F édéral C ommunications designed to meet community problems other stations.” Therefore, we have ex­ C o m m issio n ," from 2 to 4 a.m. M a n y comments sug­ cluded a question recommended by BE S T [SEAL] B e n F. W a fle , gested that certain minimum criteria relating to the showing that must be Secretary. should be established for the presenta­ made in cases where a station proposes A ppen d ix A— P arties F il in o C o m m e n t s tion of public service programing In to change its format. However, a recent Action for Children's Television. prime tiine. W e believe such a require­ decision of the U.S. Court of Appeals Aik and Lublc. ment would require a rule-making pro­ (D.C.) in The Citizens Committee, etc. American Broadcasting Co. (ABC). ceeding. In any event, we do not have v. F C C (Case No. 23,515, October 30, Association of Afro-American Television sufficient information as to the effect of 1970) necessitates à re-examination of Producers. such a requirement before us. In accord­ this approach. There, the Court reversed Badger Broadcasting Co., Inc. et al. (Badger ance with previous discussion, "meeting" our action granting consent to transfer Broadcasting) i will be substituted for the phrae* "deal­ ing with" in Question 38. of control of the licensee of an A M - F M combination in Atlanta, where the trans­ “ The Court's holding related only to as­ 74. There are several matters that signment and transfer ^plications. As to have not been discussed in conjunction changes In format not Involving application, with any specific question. Since this is “ The Commission’s abstaining from re­ the court noted that these do not require an inquiry concerning clarification of view In this area relates only to types and Commission permission; but that the 11- Commission policies, and not a rule- forms of entertainment programing, or oensee making such changes “would have making proceeding, we have not dis­ changes therein. It does not Include mat­ done so knowing that the change would have ters such as an increase In commercial mat­ been a factor to be weighed when Its ^ p li­ cussed those comments looking toward ter or decrease in the amount of nonenter- cation for renewal was filed." (THe Citizens the revision of specific rules. Ibr ex­ tatnment programing, both of which are sub­ Committee, etc., v. FCC, slip opinion, p. 16.) ample, several parties suggested that sec­ jects of review and concern, and have been “ Commissioner Johnson concurring In the tions 73.30, 73.230, and 73.630 of the for some time. result.

FEDERAL REGISTER, VOL. 36, NO, 42— WEDNESDAY, MARCH 3, 1971

[174] 4101 NOTICES Badger Broadoeetlng Co., Inc. Answer: With i^plleatlons for: Answer; Tes. Of course, an applicant's Vetaer BroadoHNUg Oo. A. Oonstructlon permit for new broadcastprincipal ohllgaticn Is to asoectaln the prob­ 960 BToadcaetlng Oorp, stations; lems at his eommvmity of Ueenas. B ut he KaaaM AHooMtoo of Radio Broadoaatam. should also aaesrtalB the prablema of the Qulngy aroadoaaUng Oo. h. Oonstructlon permit for a Ohange In other cnsnwnmttis# that ho uadeitalrM to QuUter Hewqiaiiare. Inc. authorised facilities when the ctathmB pro­ asrve, as aet forth to his response to Question BadlOhlo,lDO. posed iMd intensity contour (Grade B for 1(A) (fi) of section IV-A or IV-B. Applloants Book Island Broadoaatlng Co. television, 1 mV/m for W , or 0.6 mV/m for - for statlcaa Uoensad to more than one city, Stauffer FubUoeitloDa. Inc. AM) encompasses a new area that Is equal or for channels assigned to two or more cities, WBNS-TV,lno. to or greater than SO percent of the area or proposed transferees or assignees of sta­ Thomoa P. Baldwin and Stuart H. Burlln. within the authorised field intensity tions which have obtained, waiver of the sta­ Black Bfforta for Soul In TWevlalon (BBST). contours. tion Identification rules to permit secondary Bonneville International dorp. (Bonneville). 0 . Construction permit or modification of Identlfleatton with additional cities, are ex­ The Ohuroh Bederaitlon of OreaAer Ohloago. license to change station location; pected to asoertain problems In each of the Lauren A. Colby. d Construction permit for satellite tele­ cities. If an applicant chooses not to serve Columbia BroadoaatSystem. Inc. (CBS). vision station, including a 100 percent a major oonununlty that falls within his Committee to Improve Bay Area Television satellite; service contours a showing must be submit­ (Bay Area TV), e. The assignee's or transferee's portion ted explaining why. However, no major city cosmos Broadcasting Corp. of iqipltcatlons for assignment of broadcast more than 79 mile# from the transm itter site Daly* Joyce. license or transfer of control, except In pro need tie Included In the applicant's ascertain­ Jon Paul Davidson. forma cases where Form 319 Is appropriate. ment,-even It the station's contours exceed Dempsey * Koplovite. Eduoationai organizations filing appltoations that distance. Department of Justice, Community Relations for educational nonconunerolal stations are 7. Question: Must tbe ascertainment of Service. exempt from the provisions of this Primer. community problems for the other areas the Enq>lre Bmadcsatlng Corp. a. Question: If section IV (A or B) has applicant undertakes to serve be as extensive Federal Communications Bar Association been recently submitted, must an applicant as for the city of license? (POBA). conduct a new ascertainment of community Answer: No. Normally, consultations with Franklin Broadcasting Co. problems and submit a new section TV? community leaders who can be expected to Milton Friedman at al. : Answer: Needless duplication of effort will have a broad overview of community prob­ Milton Madman. n o t be required. Prior filings within the year lems would be sufficient to ascertain com­ Harry Blalvln. Jr. munity problems. Maurice Boaenlleid. previous to the tender of tiie present appli­ Radio Station WAIT. cation will generally be acceptable, where S. Question: Should an applicant for a Georgetown TTnlvenlty Law Center Task they were filed by the same Qipllcant, for major change In faollltlce (see Answer i(b)_ Force on the Maes Media (Georgetown), the same station or for another station In above) make a new aaoertolnment of eo: Golden West Broadcasters. the same community and there are no sig­ munity problems for the entire service an Hampton Roads Broadcasting Corp. nificant coverage differences Involved. Parties or just tbe additional area to be served? L.L. Hilliard. relying on previous filings must specifically Answer: Only the additional area to be KM80-TV, Inc. refer to the mpllcation relied on and state served need be subjected to a new ascertain­ McOlatchy Newspapers. that In their judgment there has been no ment of community problems. Only com­ John J. HoGonagle, Jr. change since the earlier filing. Proposed munities or areas covered by Question and Media Statistics, Inc. assignors and transferors of control are not Answer 6 need be ascertained, to the extent Metromedia, Inc. (Metromedia). required to file part I even where they must Indicated In Answer 7. National Association of Broadcasters, Inc, file other parts of section IV. 8. Question; Row does an applicant de­ (NAB). 3. Question: What Is the general purpose termine the composition of his city of National Broadcasting Oo, (NBC). of part I, section IV-A or IV-B? license? National Citizens Committee For Broadcast­ Answer: To show what the applicant has Answer: The applicant may use any ing (Citizens Committee). done to ascertain the problems, needs and method be chooses, but guesswork or esti­ National Mexlcan-Amerloan Anti-Defama­ interests of the residents of his community mates baaed upon alleged area familiarity tion Committee, Inc. (Mesloan-Amerlcan of license and other areas he undertakes to are Inadequate. Current data from the UB. Committee). serve (Bee Question 9, below), and what Census Bureau, Chamber of Catnmercs and National Research Center, Inc. broadcast matter he proposes to meet those other rtilable studies or reports are accept­ Office of Communication of the United problems, needs and interests, as evaluated. able. The applicant must submit such data Church of Christ. The word "problems’* will be used subse­ as Is necessary to Indicate the minority, ra­ Oregon Aasooleition of Broadcasters. quently In this Primer as a short form of cial, or ethnic breakdown of the oommunlty. Pierson, Balt* Dowd. the phrase "problems, needs and Interests.” Its economic activities, governmental activi­ Robert D. Ralford. The phrase ‘Ho meet oommunlty problems” ties. publlo service organizations, and any Red Lion Broadoaatlng Co.. Ino. will be used to Include the obligation to other factors or activities that make the par­ . Hencbel Shosteck Associates. meet, aid In meeting, be responsive to, or ticular community distinctive. William H. Blemerlng. stimulate the solution for community 10. Question: If the applicant shows con­ Donald Stockton et al : problems. sultations with leaders of groups and organi­ Donald Stockton. 4. Question: How should ascertainment of zations that represent various economic, so­ Sanford B. Markey. community problems be made? cial, political, cultural and other elements of J. Jerome Laokamp. Answer: By consultations with leaders of the community, such as government, educa­ Btorer Broadcasting Co. the significant groups In the community to tion, religion, agriculture, business, labor, Tri-State Broadcasting Co., Inc. be served and surrounding areas the appli­ the professions, racial and/or ethnic groups, Turner Broadcasting Corp. cant has undertaken to serve, and by consul­ and eleemosynary organizations. Is the ap­ William M, Weir et al : plicant still required to submit a showing William M. Weir. tations with members of the general public. In support of Its determination of the com­ Dee W. Norton. In order to know what significant groups position of the community? Alan Spltzer. are found In a partloular community. Its Answer: Tes TThe purpose of requiring a SueRcener. composition must be determined, see Ques­ Peter Roberts. determination of tbe community Is to Inform John Spaulding. tion and Answer 0. The word "group” as the ^>pllcant and the Oommlsslon what Dorothea DUkes, used here Is broad enough to Include popula­ groups comprise the community. The appli­ Welch & Morgan. tion segments, such as racial and ethnic cant must use tbat information to select Weetlnghouse Broadcasting Co., Inc, (Weet- groups, and informal groups, as well as those who are to be consulted as representa­ Inghouae). groups with formal organization. tives of those groups. That determination What the Bible Says, Inc. (WTB6I). G. Question: Can an applicant rely upon may be challenged on a showing, including AmMoix B—FnmtAL OoMsnnnoanoMS Coss- long-time residency In or familiarity, with, supporting data, that a significant group has tnesiow Fuhss om Pu * I Bbjroh IV-A am IV-B or ApKicanom Fommss Oowcraw- the area to be served Instead of making a been omitted. The "significance ' of a group ttro AsczxTaiNiantT or G om nnnrr l%oa- showing that he has ascertained oommunlty may rest on several criteria. Including Its UMS am Baoancasr Marras t o Dzai, W rra problems? size. Its Influence, or Its lack of Influence In Tmosa PaoSLsua Answer: No. Buch an ascertainment Is tbe community. A. General. m andatory. B. OonsuJtattons wtth Community Leaders 1. Question; With what QipUoatlona does 6. Question: Is an applicant expected toand Members o/ fbe General Publie. this Primer apply In answering part I, Mo­ ascertain community problems outside the 11(a). Question: ’Who Should conduct con­ tion TV (A or B) of the application forms? community of license? sultations with oommunlty leaders?

FEDERAL REGISTER, VOL. 36, NO. 42— WEDNESDAY, MARCH 3, 1971

[175] NOTICES 4105 Answer: ftmolpsls or msnsgeme&t-IevM tion's oovwoff# oontoura. Applloants for sta­ exposure or publicity for the partloulof group employee#. In the oeee of newly formed tions In rslatlvsly small eommunltlss that or groupa with which they ore offlllAtad, The pUosnU who have not hired a full staff and ore near larger oommunlttos are nmlndsd oppUooat may properly note thee# Mtnmenta, are applying tor new stations, or for transfer that an osoertalnmsnt of oommunlty prob­ but should o#k further questions deelgnod to or assignment of #n autboriaatton, prlnel* lems primarily In the larger oonununlty elicit more extenslvo responsea as to com­ pal# management-lere! employees, or pro-raises a question as to whether the station munity problems. speoUve management-level employees, must will reallstlcauy serve the smaller olty, or SO. Question: In responding to port I of be used to consult with oommunlty leaders. intends to abandon Its obligation to the aeotlon IV-A or IV-B how should the 11(b). Question: Who should consult with smaller city. , applicant identify the community leaders members of the general publlo? 18. Question: When should consultations oonsulted? Answer; Principals or employees. In the be held? Answer: By name, position, and/or orga­ case of riewly fOrmed applicants who have Answer: In preparing iqipllcatlons for nization of each. If further information Is not hired a full staff and are applying for major changes in the facilities of operating required to dearly Identify a q>edflo leader, new stations, or for transfer or assignment stations, a complete new ascertainment must it Should be submitted. of an authorlaation, principale, employees 31. Question: Should the Information elic­ be made within six (d) months prior to fil­ ited from a community leader, from the or protective employees may conduct con­ ing the application. Applicants for a new standpoint of tbe group he represents, be sultations. If consultations are conducted facility, or the party filing the assignee or set torUi after his name? by employees who are below the manage­ transferee portion of an application for as­ Answer; It Is not required, but the w*pU- ment level, the consultation process must signment or transfer, are also required to cant may find it desirable. The information be supervised by priaolpals, management- hold consultations within six (0) months cau be set forth In a general list of oommu­ level employees, or prospective management- prior to filing an appropriate iqipUoatlon.nlty problems, level employees. In addition, the applicant 10. Question: Is a showing on the ascer­ O, Information Received. may choose to use a professional research tainment of community problems defective 33, Question: Must all community prob­ or survey service to conduct consultations If leaders of one of the groups th at comprise lems which were revealed by the consulta­ with members ct the general publlo. the community, as disclosed by the ap­ tions be included in the applicant's showing? 13, Question; To what extent may a pro- plicant's study, are not consulted? Answer; All asoertalhed oommunlty prob­ feasional research or survey service be used Answer: The omission of consultations in the ascertainment process? lems Should be listed, whether or not he Answer; A professional service would not with leaders of a significant group would proposes to treat them through his broad­ establish a dialogue between decision-mak­ make the applicants showing defective, since cast matter. An applicant need not, however, ing personnel In the applicant and commun­ those consulted would not reflect the com­ list comments as to oommunlty problems ity leaders. Therefore, such a service may position of the community. that are clearly frivolous. not be used to consult community leaders. 17. Question; In consultations to ascertain D. Applicant's évaluation. However, a professional service, as Indicated community problems, may a preprinted form S3. Question: What Is meant by an "ap­ or questionnaire be used? plicant’s evaluation" of Information received in Answer 11(b), may be used to conduct as to community problems? consultations with the general public. A pro­ Answer: Yes. A questionnaire may serve fessional service may also be used to provide as a useful guide for consultations with Answer: The iqipllcant's evaluation is the the applicant with background data, in­ community leaders, but cannot be used In process by which he determines the relative lieu of personal consultations. Members of importance of the community problems he cluding information as to tbe composition has ascertained, tbe timeliness of the various of the city of license. The use of a profes- the general public may be asked to fill out a questionnaire to be collected by the ap­ comments, and the extent to which he Blonal research or survey service Is not re­ can present broadcast matter to meet the quired to meet Commission standards as to plicant. If the applicant uses a form or ques­ problems. ascertaining community problems. The ap­ tionnaire, a copy should be submitted with the application. 34. Question : Is the applicant's evaluation plicant will be responsible for the reliability to be Included In his application? of such a service. 18. Question: In consulting with com­ Answer; It Is not required. Where the ap­ 13(a). Question: With what community munity leaders to ascertain community prob­ plicant's broadcast matter does not ^pear leaders should consultations be held? lems, should an applicant also elicit their to be sufficiently responsive to the commu­ Answer; The applicant has already de­ opinion on what progratns the applicant nity problems disclosed by his consultations, termined the composition of the community, should broadcast? the applicant may be asked for an ex^ana- and should select for consultations those Answer; It Is not the purpose of the con­ tlon by letter of Inquiry from the Oommis- oommunlty leaders that reflect that compo­ sultations to elicit program suggestions. (See slon. See Questions and Answers 38 and 36. sition. Groups with the greatest problems Question and Answer 3.) Bather, it is to 25. Question: Must an applicant plan may be the least organized and have the ascertain what the person consulted believes broadcast matter to meet all community fewest recognized spokesmen. Therefore, ad­ to be the problems of the community from problems disclosed by his consultations? ditional efforts may be necessary to Identify the standpoint of a leader of the parilcular Answer: Not necessarily. However, he Is their leaders so as to better establish a dia­ group or organization. Thus, a leader In the expected to determine In good faith which logue with such groups and better ascertain educational field would be a useful source of such problems merit treatment by the their problems. of Information on educational matters; a station. In determining what kind of broad­ 13(b). Question : With what members of labor leader, on labor matters; and a business cast matter should be presented to meet the general public should consultations be leader on business matters. However, It IS those problems, the applicant may consider held? also recognized that Individual leaders may his program format and the composition of Answer: A random sample of members of have significant comments outside their his audience, but bearing In mind that many the general publlo should be consulted. The respective fields, and the applicant should problems affect and are pertinent to diverse consultations should be designed to further consider their comments with respect to all groups of people. ascertain community problems which may community problems. The applicant has the 30. Question: If an applicant lists a num­ not have been revealed by consultations with responsibility for determining what broad­ ber of community problems but in his eval­ community leaders. In addition to a random cast matter should be presented to meet the uation determines that he will present broad­ sample, if the applicant has reason to be­ ascertained community problems os he has cast matter to meet only one or two of them, lieve that further consultations with a par­ evaluated them. would the proposal be defective? ticular group may reveal further problems or ID. Question: If, in consulting with com­ Answer: A prima fade question would arise may elicit viewpoints that will give him munity leaders and members of the general as to how the proposal would serve the public further Insight Into Its problems, he is en­ public, an applicant receives little informa­ interest, and the applicant would have the couraged to consult with additional mem­ tion as to the existence of community prob­ burden of establishing the validity of his bers of that group. lems, can he safely assume that only a few proposal. 14. Question; How many should be con­ problems actually exist? 37. Question: As a result of the evaluation sulted? Answer: No. The assumption Is not safe. process. Is an applicant expected to propose Answer; No set number or formula has The applicant should reexamine his efforts broadcast matter to meet community prob­ been adopted. Community leaders from each to determine whether his consultations have lems In proportion to the number of people significant group must be consulted. A suf­ been designed to elicit sufficient information. Involved In the problem? ficient number of members of the general Obviously, a brief or chance encounter will Answer: No. For example, tbe applicant, publlo to assure a generally random sample not provide adequate results. The person In­ in bis evaluation (see Question and Answer. must also be consulted. The number of con­ terviewed should be specifically advised of 33) might determine that a problem con­ sultations Will vary, of course, with the size the purpose of the consultation. The ap­ cerning a beautification program affecting of the olty in question and the number of plicant should note th at many individuals, all the people would not have the relative distinct groups or organizations. No formula when consulting with a broadcast applicant, importance and immediacy of a problem re­ has been adopted as to the number of con­ either Jump to the conclusion that the iq>- lating to Inadequate hôpital facilities af­ sultations In the olty of license compared pllcant Is seeking programing preferences, fecting only a small percentage of the com­ to other oommunttlee falling within the sta­ or express community problems In terms of munity, but in a llfe-or-death way.

FEDERAI REGISTER, VOL. 36, NO. 42— WEDNESDAY, MARCH 3, 19/1

[176] 4106 NOTICES a. Mnaàeatt itatUr To Mttt the Proitem» 90. Question: Oon on applicant specify 38, Question : Con news programing be con- w Moelueted. only announcemente and no pragcama to stdsrsd os programing to meet oommunlty at, QOHtloa: What te meant by "brood- meet community prOMema? . piobteraay fioot mmttef"? Answer: A proposil to present announce- Answer: Yes. Bowevat, they cannot be A tm nr: Arogmme and annonacamente. asots only w w a raise a quaetlan os to the relied upon snluslvtey. Most bsuodoast sta- a*. QiMotloo: In tba opplioaUon, must adequacy of the proposal. The applicanttkme, of eoure% carry news programs legard- tbor# b# a obowlng am to what braodeort would have the burden of estobitehing that tess of community problems. Hews prognuus matte* th# opphoont U pmpoolng to whatannouncemente wotild be the meet effective are usually considered by tbe people to be a prObUmf method to t meeting the community prob­ factual report of events ana matters—to Anovor; Tot. Go* Publie Notloa of August lems he proposes to meet. It the burden Is keep the public Informed—and, therefore, ore aa, IMS. woo ea-i«7, is b r ad isos, m e not met by the Showing in the application, not deslped primarily to meet community appUoont Ohould gtv* th# deaorlptlon, and it will be subject to further Inquiry. problems. anticipated ttma segment, duration and 81. Question: What is meant by devoting 84. Question: If sh applicant proposée a frequency of broadcast of the program or a significant proportion” of a station’s pro­ speelallned format (ell news, rook and roll, program oertee, and the oonununlty prob­ graming to meeting community problems? retlgtoue, etc.), must ft present broadcast lem or probteme which are to be treated by [City of Camden 18 FOC 3d 413, 431, 10 RB matter to meet community problemsf It. One appropriate way would be to list the ad M8.808 (1063)) Answer: Tea. The broadcast matter can broadcast matter and, after It, the particular Answer: There Is no single answer for all be fitted Into tbe format of the station. problem cr problema tbe broedceet matter stations. The time required to deal with 80, Question: May an vpUeant rely upon U designed to meet. Statements such os community proUems can vary from com­ aotivttteo other than programing to meet "programs will be broadcast from time to munity to community and from time to community problems? time to meet community problems," or time within a community. Initially, this Is Answer: NCk Many broadcasters do par­ "news, talk end discussion programs ,wUl a matter that faite within the discretion of ticipate penmally in civic activltiee, but be used to meet community proUems,” are the o;>pUcaat. However, where the amount the Com misions eonoem must be with the clearly tnsufflclent. Applicants should note of broadcast matter proposed to meet com­ licensee's stewardship of his broodooet time th at they are expected to make a positive, munity problems appears patently Insuffi­In serving the public Interest. diligent and continuing effort to meet com­ cient to meet significantly the community so. Question: Are there any requirements munity protflems. Therefore, they ore ex­ problems disclosed by the applicant's con­ as to when broadcast matter meeting com­ pected to modify their broadcast matter if sultations, he wUl be asked for an explana­ munity problems should be presented? warranted In light of changed community tion by letter of Inquiry from the Oommls- Answer: The applicant Is expected to problems. If announcements ore proposed, elon. schedule thé time of presentation on a good 33. QuestKm: Con statimi editorials be faith judgment os to when It could reason­ they should be identified with the com­ U sed SB a port of a licensee’s efforts to meet munity problem or problems they are de­ community problems? ably be expected to be effective. signed to meet. Answer: Tee. [Pit Doc,71-3733 Filed 8-3-71:8:46 am)

FEDERAL REGISTER, VOL, 36, HO. 43— WEDNESDAY, MARCH 3, 1971

[177] REMARKS BY SENATOR JOHN 0 , PASTCRE on the Senate Floor A p ril 29, 1 5 6 5

S. 2004 -- Introduction, of a h ill to modify procedures for renewal of Federal Communications Commission licenses.

Mr. P resid en t:

Vjhen the Federal Communications Commission was before the Subcommittee on Communications on March U and 5 numerous questions were raised with regard to harassment of licensees at the time they file their applications for renewal of their licenses . I questioned the Commission about this disturbing trend and stated at the time that it was my deep-seated conviction that public service is not encouraged nor promoted by placing the sword of Damocles over the heads of broadcasters at renewal time.

A broadcaster must invest considerable sums of money in equipment and quali­ fied professional personnel in order to properly serve the public.

Consequently, if he lives up to the promises and representations he makes to the FCC at the time the license is granted, and abides by the letter and the spirit of the Communications Act and the communication policies of the Commission, he should not -- and I repeat — he should not beplaced injeopardy at renewal time and have his license put up for grabs .

This -- to me — is nothing more than equity in justice.

If he has not done the things required of him, then the Commission should take appropriate action and in the event the license is revoked, then and only then should it be made available to a ll comers,

The reason for this is very simple, in my opinion.

Today television is a very costly and expanding enterprise. Broadcasters must maintain the best and the most modern equipment and gather together highly qualified professional personnel in order to best serve the public interest.

Therefore, in order to carry out this responsibility the broadcasters must have reasonable assurance that if he does his job -- and does it well -- that his license w ill be renewed and that his investment w ill not go down the drain.

I stated the very same thing to the broadcasters when I spoke at the con­ vention of the National Association of Broadcasters on March 2h.

I want to make it perfectly clear that this legislation does not give the broadcaster a license in perpetuity. He must file, as he does today, an appli­ cation for renewal at the expiration of his license which must be at least once every three years. The burden is his to prove to the Commission that his record conforms to the promises he made and that his representations for future operations are sufficient to satisfy the Commission that a renev/al w ill serve the public interest.

To carry out this purpose, I am today introducing a b ill which will accomplish this purpose.

[178 ] FACT SHEET

REASONS WHY LEGISLATION SHOULD BE ENACTED TO ESTABLISH ORDERLY PROCEDURES FOR RENEWAL OF BROADCAST LICENSES (S. 2004, H. R. 10010 and Similar Bills)

Legislation has been introduced in both houses of Congress to amend the Communications Act to require the Federal Communications Commission to determine whether an existing broadcast station license should be renewed before it considers other applications for the same facilities. Nineteen members of the Seiiate have joined with Senator Pa store in introducing S. 2 004, and some eighty House members have introduced substantially similar bills. Hearings have been initiated in the Senate Commerce Committee.

License Renewal Legislation Is Urgently Needed Now. More and more "strike" applications are being filed against stations at renewal time. Under present law the FCC must consider these applications with all of the bureaucratic and administrative formalities - preparation of documents, briefs, hearings, re­ hearings, appeals, etc. If this legislation is not enacted there is likely to be a flood of such applications.

The Bill Provides Better Service Through Stability. Newcomers can make "blue sky" promises that would probably exceed the performance of any existing station. Although radio and television licenses must be renewed every three years, these stations must make a far longer commitment to provide the best service to the public. They have invested substantial sums of money to acquire equipment, buildings, programming and, most important, qualified personnel. No broadcaster would plan and implement long-range growth and service if his license were in jeopardy every three years.

Present Procedures Are Destructive And Costly. Denial of a license renewal to a station that has served the public adequately and grant of that license to a newcomer would be to wipe out innocent investors - a harsh and unjustified penalty. Even if a station succeeds in defending its license, the cost could be enormous. In the case of a small, individually owned station, success in achieving renewal would be little comfort for the cost of litigation.

This Legislation Would Not Grant A Perpetual License. Licenses would still have to be renewed every years and only if the station has served the public interest, convenience and necessity. The license of a station that has failed to measure up would not be renewed if the same licensee seeks renewal. But the station that has done a good job would have nothing to fear.

Strike Applicants Are "Claim lumpers" - Not Competitors. Outside applicants for an existing station are not "competitors" in the constructive sense of the term. They are people who are seeking to take over a business that some­ one else has built up by the sweat of his brow. It partakes more of the nature of claim jumping than competition.

[179] Public Still Free To Contest Renewals. The passage of this legislation would in no way restrict members of the public from contesting renewal of a station's license. All of the rights of aggrieved members of the public would be preserved. This legislation only prevents consideration of applications to take over the facility until after its license has been denied.

Licensing Procedures Should Not Be Exploited To Restructure Broadcasting To Circumvent The Legislative Process. Broadcasters obtained their licenses in the first instance under ground rules laid down by the FCC under the Communications Act. In reliance upon those rules they have made large investments and personal commitments.

This legislation will serve notice on the FCC that it cannot restructure the broadcasting industry through granting licenses to new licensees, but that it must proceed through rule making procedures or amendment of the law. Perhaps even more importantly, it will discourage those misguided individuals who believe they should control radio and television programming to force the restructure of American society.

Large Numbers Of Renewal Hearings Would Overburden Both Broadcasters And FCC. If the present policy is continued and every license is open to outside applications every three years, both the broadcasters and the FCC will be weighted down by hearings. It has been noted that the Commission does not now have enough staff to perform all of its functions. If it is to be required to conduct hundreds - perhaps thousands - of additional hearings, the result will be chaos.

Orderly License Renewals Will Benefit The Listening And Viewing Public. In summary, S, 2 004 will benefit the public by encouraging longer range investments in broadcast service; it will reduce the workload on an already overworked staff at the FCC; it will be fair to broadcasters and the public they serve.

August 1969

[180] m W uu v_y Federal Communications Commission ■ 191S M Street, NV/. ■ Washington, D.C. 20554

FCC 70-62 40869 January 15, 1970 - B POLICY STATEMENT ON COMPARATIVE HEARINGS INVOLVING REGULAR RENEWAL APPLICANTS

In 1963 the Commission issued a policy statement on Comparative Broad­ cast Hearings which is applicable to hearings to choose among qualified new applicants for the same broadcast facilities. See Policy Statement on Com­ parative Broadcast Hearings, 1 FCC 2d 393. We believe that we should now issue a similar statement as to the comparative hearing where a new appli­ cant is contesting with a licensee seeking renewal of license. We have, of course, set forth our policies in this respect in several cases, and indeed, have done so in designating issues in some very recent cases. E.G., In re Application of RKO General, Inc., FCC 69-1335, para. 8; In re Application of Lamar Life Broadcasting Co. , FCC 69-1336, para. 2. There has, however, been considerable controversy on this issue, as shown by the hearings on S. 2004 now going forward before the Senate Subcommittee on Communications. Issuance of this statement will therefore contribute to clarity of our policies in this important area. This will be of assistance to the examiners who initially decide the cases. It will expedite the hearing process and promote consistency of decision. Above all, by informing the broadcast industry and the public of the applicable standards, the public interest "in the larger and more effective use of radio" (Section 303(g) of the Communications Act) w ill be served.

The statutory scheme calls for a limited license term. This permits Commission review of the broadcaster's stewardship at regular intervals to determine whether the public interest is being served; it also provides an opportunity for new parties to demonstrate in public hearings that they will better serve the public interest. It is this latter aspect of the statutory scheme with which we deal here. See Sections 307, 308, 309.

The public interest standard is served, we believe, by policies which insure that the needs and interests of the listening and viewing public will be amply served by the community’s local broadcast outlets. Promotion of this goal, with respect to competing challenges to renewal applicants, calls fo r the balancing o f two obvious considerations.

Cl 81] f The first is that the public receive the benefits of the statutory spur f inherent in the fact that there can be a challenge, and indeed, where V the public interest so requires, that the new applicant be preferred. \ The second is that the comparative hearing policy in this area must not \ undermine predictability and stability of broadcast operation.

The institution of a broadcast service requires a substantial investment, particularly in television, and even where the investment is small it is likely to be relatively large to the person making it. It would disserve the public interest to reward good public service by a broadcaster by terminating the authority to continue that service. If the license is given subject to withdrawal despite a record of such good service, it will simply not be possible to induce people to enter the f ie ld and render what has become a v it a l public se r v ic e . Indeed, rather than an incentive to qualified broadcasters to provide good service, it would be an inducement to the opportunist who might seek a license and then provide the barest minimum of service which would permit short run maximization of profit, on the theory that the license might be terminated whether he rendered a good service or not. The broadcast field thus must have stability, not only for those who engage in it but, even more important, from the standpoint of service to the public.

We believe that these two considerations call for the following policy — namely, that if the applicant for renewal of license shows in a hearing with a competing applicant that its program service during the preceding license term has been substantially attuned to meeting the needs and interests of its area, _1/ and that the operation of the station has not otherwise been characterized by serious deficiencies, he will be p referred over the newcomer and h is a p p lica tio n for renewal w ill be granted. His operation is not based merely upon promises to serve solidly the public interest. He has done so. Since the basic purpose of the Act -- substantial service to the public -- is being met, it follows that the considerations of predictability and stability, which also contribute vitally to that basic purpose, call for renewal.

This is not new policy. It was largely formulated in the leading decision in this field, Hearst Radio, Inc.. (WEAL). 15 FCC 1149 (1951), where the Commission, in favoring the existing licensee, stated that where a choice must be made between an existing licensee and a newcomer, a grant will normally be made to the existing station if its operation has been meritorious, and that a good record may outweigh preferences to a newcomer on such fa cto rs as lo c a l resid en ce and in teg ra tio n of

1/ We wish to stress that we are not using the term "substantially" in any sense of partial performance in the public interest. On the contrary, as the discussion within makes clear, it is used in the sense of "solid", "strong", etc., (see p. 3, supra) performance as contrasted with a service only minimally meeting .Che needs and interests of the area. In short, we would distinguish between two types of

[ 1 8 2 ] • J

I ownership and management. The WBAL policy was followed In In re Wabash Valley Broadcasting Corp. . 35 Fl '. '^7 (1963), and cited with approval in recent actions (see, e.g.. In re Application of RKO General. Inc.. FCC 69-1335, para. 8).

If on the other hand the hearing record shows that the renewal applicant has not substantially met or served the needs and interests of his area, he would obtain no controlling preference. On the contrary, if the competing new applicant establishes that he would substantially serve the public interest, __ 2 / he should clearly be preferred over one who was given the opportunity to do so but chose instead to deliver less than substantial service to the public. In short, the past records of the renewal applicant is still the critical factor, but here it militates against renewal and in favor of the new applicant, provided that the latter establishes that he would solidly serve the public interest.

We recognize that the foregoing policy does not work with mathematical precision, and that particular factual circumstances will have to be explored in the hearing process. For example, if there are substantial questions as to whether the renewal applicant's operation has been characterized by serious deficiencies -- such as rigged quizzes, A^iolations of the Fairness Doctrine, over-commercialization, broadcast of lotteries, violation of racial discrimination rules, or fraudulent practices as to advertisers -- the facts as to these matters would have to be established, and any demerits resulting therefrom weighed against the renewal applicant in the public interest judgment which must be made. It is not possible to lay down any more precise standards here, since so much w ill depend on the particular facts.

Further, we recognize that the terms "substantially" and "minimally" also lack mathematical precision. However, the terms constitute perfectly appropriate standards. Thus, the word "substantially" is defined as "strong; solid; firm; much; considerable; ample; large; of considerable worth or value; important" (Webster's New World Dictionary College Ed., p. 1434); __3/ the word "minimal" carries the pertinent definition, "smallest permissible" (Id. at p. 937). However, application and evolu­ tion of the standards would again be left to the hearing process.

(cont'd) situations -- one where the licensee has served the public interest but in the least permissible fashion still sufficient to get a renewal in the absence of competing applications (defined herein as minimal service) and the other where he has done so in an ample, solid fashion (defined herein as substantial service).

2 / With several such new applicants, the Policy Statement on Comparative Broadcast Hearings. 1 FCC 2d 393, would be the basis for decision as among them .

3 f We also note that the term is frequently employed in statutes, e.g., 15 Ü.S.C. 13 (the Clayton Act); 42 U.S.C. 403(f)(4)(A) (Social Security Act); 26 U.S.C. 382(a)(1)(C) (Internal Revenue Act); indeed, it is used in the Communications Act, 47 U.S.C. 503(b)(1)(A).

[183] u -

The renewal applicant would have a full opportunity to establish that his operation was a "substantial" one, solidly meeting the needs and interests of his area, and not otherwise characterized by serious deficiencies. He could, of course, call upon community leaders to corroborate his position. On the other hand, the competing party would have the same opportunity In the hearing process to demonstrate his allegation that the existing licenee's operation has been a mi limal one. And he, too, can call upon community leaders to testify to this effect if that is, indeed, the case. The programming performance of the licensee in all programming categories (including the licensee's response to his ascertainments of community needs and problems) is thus vital to the judgment to be made. Further, although the matter is not a compar- tive one but rather whether substantial service has been rendered, the efforts of like stations in the community or elsewhere to supply sub­ stantial service is also relevant in this critical Judgment area. There would, of course, be the necessity of taking into account pertinent standards which are evolved by the Commission in this field.

Two other points deserve stress in this respect. First, unlike the case involving new applicants (see 1 FCC 2d at pp. 397-98), a programming record w ill be considered even though it is not alleged to be either unusually good or bad. Thus, the renewal applicant w ill not have to demonstrate that his past service has been "exceptionally" or "unusually" worthy. Were that the criterion, only the exceptional or unusual renewal applicant would win a grant of continued authority to operate, and the great majority of the industry would be told that even though they provide strong, solid service of significant value to , their communities, their licenses w ill be subject to termination. As stated at the outset, such a policy would therefore disserve the public interest. And conversely, a new applicant would not have to allege that the existing licensee's operation had been unusually bad.

Second, the renewal applicant must run upon his past record in the last license term. If, after the competing application is filed, he "upgrades" his operation, no evidence of such upgrading w ill be accepted or may be relied upon. To give weight to such belated efforts to meet his obligation to provide substantial service would undermine the policy of the competitive spur which Congress wisely included in the Communications Act. A renewal applicant could simply supply minimal service from year to year, secure in the knowledge that even if a competing application were filed at the time of renewal, he could then "upgrade" to show substantial service. Therefore, no evidence as to improved service after the filin g of the competing application (or a petition to deny directed to programming service) will be deemed admissible in the hearing. This is, of course, a departure from the procedure permitted in the WBAL case.

[184] ÿ Further, the renewal applicant, seeking to obtain the benefits of this policy, cannot properly supply minimal service during the first two years of his license term and then "upgrade" during the third year because of the imminence of possible challenge. The Act seeks to promote conscientious and good faith substantial service to the public not a triennial flirtation with such service. Therefore, while we recognize that the licensee's programming efforts do and must vary over a license period and hopefully are continually being improved, we could not weight as controlling or determinative a pattern of operation which showed substantial service only in the last year of the license term.

We note also the question of the applicability here of our policy of diversification of the media of mass communications. We do not denigrate in any way the importance of that policy or the logic of its applicability in a comparative hearing involving new applicants. See 1 FCC 2d at pp. 394-95. We have.stated, however, that as a general matter, the renewal process is not an appropriate way to restructure the broadcast industry. E.g., In re Application for Renewal of WTOP-TV, FCC 69-1312. Where a renewal applicant with other media interests has in the past been awarded a grant as consistent with the Commission's multiple ownership rules and policies, and thereafter proceeded to render good service to his area, it would appear unfair and unsound to follow policies whereby he could be ousted on the basis of a comparative demerit because of his media holdings._4/ Here again, the stability of a large percentage of the broadcast industry, particu­ larly in television, would be undermined by such a policy. Our rules and policies permit multiple ownership, and the industry has made sub­ stantial commitments based on those rules and policies. These rules are not sacrosanct, and indeed should and must be subject to periodic review. We are now engaged in such review in a number of overall rule making proceedings. E .g., FCC Dockets Nos. 18110 and 18397. If any rule making proceeding, now pending or initiated in the future, results in a restructuring of the industry, it will do so with proper safeguards, including most importantly an appropriate period for divestment. Such a way of proceeding is, we believe, sound and "best conduces to the proper dispatch of business and the ends of justice;" Section 4(j)

4 / Of course, if such a renewal applicant has not rendered sub­ stantial service, he might also face a demerit on the diversification ground. Such an additional demerit might well be academic, since, barring the case where his competitor is also deficient in some important respect, a past record of minimal service to the public is likely to be determinative, in and of itself, against the renewal a p p lic a n t.

[186] of the Communications Act; WJR v. F.C.C.. 337 U.S. 265, 282 (1948), In short, whatever action may be called for in special hearings where particular facts concerning undue concentration or abusive conduct in this respect are alleged, 5/ the overall structure of the industry, so far as multiple ownership and diversification are concerned, should be the subject of general rule making proceedings rather than ^ hoc decisions in renewal hearings.

We believe the issuance of this policy statement will.expedite the hearing process in this area. Examiners w ill be clear as to our general policy. Indeed, it may significantly shorten hearings. If the Examiner, at the conclusion of the initial phase of a hearing dealing with a renewal applicant's past record, has no doubt that the existing licensee's record of service to the public is a sub­ stantial one, without serious deficiencies, he should, either on his own motion or that of the renewal applicant, halt the proceeding at this point and issue an initial decision based upon that deter­ mination, However, where the matter is in any way close or in doubt, it would be more appropriate to proceed with the hearing, and thus insure that the record is complete when the matter comes before the Commission. ,

Most important, as stated above, the policy w ill markedly serve the public interest by informing the broadcast industry and the public of their responsibilities and rights. And, in doing so, it retains the competitive spur provided in the Communications Act and yet insures predictability and stability of broadcast operations. For the policy says to the broadcaster, "if you do a solid job as a public trustee of this frequency, you w ill be renewed; your future is thus really in your hands," The policy says to all interested persons, "The Act seeks to promote not just minimal service but solid, substantial service; if at renewal time, a group of you be­ lieve that an applicant has not rendered such service, you may file a competing application and will be afforded the opportunity, in a hearing, to establish your case. If you do so, you w ill be granted authority to operate on the frequency in place of the renewal appli­ cant who has failed to provide substantial service." 6/

In re Applications of Midwest Television, Inc.. FCC 69-261; In -~e Applications of Chronicle Broadcasting Company. FCC 69-262.

It would be expected that appropriate arrangements could and would be made to purchase facilities owned by the existing station. See, e.g.. In re Application of Biscayne Television Corp.. 33 FCC 851 (1962).

[186 ] ■ ;i i The policy Is thus fair to the broadcaster and to the new contestant, and above all it serves the listening and viewing public. To the argument that the hearing process Itself is an unfair burden, the short answer is that such hearings stem directly from the statutory scheme, and particularly from the notion that the broadcaster is a public trustee who can acquire no permanent ownership of the fre­ quency on which he o p erates. With even-handed a d m in istra tio n o f the policy, there is unlikely to be any plethora of frivolous challengers, in view of the significant costs involved.^/And in any event, where frivolous challenges are made, the Examiner may in his discretion, and should, take action to avoid a long drawn out hearing. In the final analysis, the broadcaster has, we believe, the answer within his hands—if he really knows and cares about his area and does a good substantial Job of serving it, he will discourage challenges to his renewal applications.

We recognize that there can be concern whether this policy w ill prevent a new applicant willing to provide a superior service from supplanting an existing licensee who has broadcast a substantia], but less impressive, service. But, as stated, there are obvious risks in accepting promises over proven performance at a substantial level, and we see no way, other than the one we have taken, adequately to preserve the stability and predictability which are important aspects of the overall public interest. We believe that there will still be real incentives for those existing broadcasters willing to provide superior service to do so, since the higher the level of their operations, the less likely that new applicants will file against them at renewal time. And as the Commission spells out, in decided cases, the elements which constitute substantial service, it will serve the private interests of broadcasters to make certain that their operations fall clearly into that class of service. Thus the public interest w ill be served by the continuing efforts of broadcasters to minimize the chances of the filing of competing applications.

The foregoing policy is limited to comparative hearings between renewal applicants and new applicants for the same facilities in the same community. The restriction to the same community is necessary to exclude from this policy contests between applicants for different communities which are governed by the provisions of section 307 (b) of the Act, since this section requires that the grant go to the community most in need of the station, without regard to the comparative qualities of the applicants. In practical effect, this section applies solely to standard broadcasting. 8^/ Such AM cases involve considerations quite different from those with which the Commission is concerned here, and are thus not dealt with in this statement.

2/ We wish to stress, with the Issuance of this Statement, that barring extraordinary circumstances, the challenger to a renewal cannot be reimbursed in any amount for his expenditures in preparing and prosecuting his application, nor w ill merger agreements be countenanced. The policy set forth herein will apply where a new applicant files Zgainst a renewal applicant, seeking to use the contested FM or TV channel in a different community under the provisions of Sections 73.203(b) or 73.607(b) of our rules.

[187] ______.______!_ As shown by our recent actions (see p. I, supra) . this policy is of course applicable to pending proceedings, and Indeed, we stress again that its essential holding reflects long established precedent. The policy statement is inapplicable, however, to those unusual cases, generally Involving court remands, in which the renewal applicant, for sui generis reasons, is to be treated as a new applicant. In such cases, while the past record, favorable or unfavorable, is of course pertinent and should be examined, the WBAL policy, as here amplified, is inapplicable; a good record without serious deficiencies will not be controlling in such cases so as to obviate the comparative analysis called for in the Policy Statement on Comparative Broadcast Hearings. 1 FCC 2d 393 (1965).

In sum, we believe that this is the best possible balancing of the competing aspects of the public interest which are to be served in this area. However, the promise of this policy for truly substantial service to the public w ill depend on the consistency and determination with which the Commission carries out this policy in the actual cases which come before it. Only if we truly develop and hold to a solid concept of substantial service, will the public derive the benefits this policy is designed to bring them. We pledge that we w ill do so, and in turn call upon the industry and interested public to play their vital roles in the implementation of this policy.

Action by the Commission January 14, 1970. Commissioners Burch (Chairman), Bartley, Robert E. Lee, Cox, H. Rex Lee and Wells, with Commissioner Johnson d isse n tin g and issu in g a statem ent.

Sent to all broadcast licensees.

FCC

[188] Policy Statement on Comparative Hearings Involving Regular Renewal Applicants

Dissenting Opinion of Commissioner Nicholas Johnson

The issues surrounding citizen participation in the license renewal

process are among the most complex and significant before the FCC.

The nature of the American political process is such that any

efforts to regulate broadcasting by either Congress or this Commission must constitute a negotiated compromise of sorts. That the broadcasting industry today is perhaps the most powerful Washington lobby in our

nation's history is generally acknowledged. Popular reform movements always

start with a substantial disadvantage. For none is that more true than for

those groups trying to improve the contribution of television to the quality

of American life. But, then, the stakes are higher.

There is no question but that the American people have been deprived

of substantial rights by our action today. There is also no question that

the results could be much worse--given the commitment of the broad­

casting industry on this issue, and the introduction of legislation (such

as S. 2004) by Z2 Senators and 118 Representatives.

The policy statement has been discussed by us calmly and at

length. Each Commissioner has endeavored to balance the conflicting

interests of broadcasters and public. The language has been revised

in a spirit of accommodation; the public interest is better served as a

[189] result. Because of my participation in these drafting efforts I feel considerable inclination to concur. On agonizing balance, however,

I find I cannot.

There is a germ of legitimate concern in the broadcasters* position. (1) It is inequitable that a broadcaster who has made ah ex­ ceptional effort to serve the needs of his community, and whose programming is outstanding by any measure, should be subjected to the expense and burden of lengthy hearings merely because some fly-by-night chooses to take a crack at his license. (2) When evaluating a competing application in a renewal case, a record of outstanding performance by the licensee obviously should be given considerable weight. (3) It is far better to provide consistent national standards for station ownership by general rulemaking (with divestiture if necessary) than to evolve them on the case-by-case happenstance of which stations' licenses happen to be challenged. (4) There are some public benefits from "stability" for those broadcasters who take their responsibilities seriously.

What the public loses by this statement can be summarized In the word "competition. " The theory of the 1934 Communications Act was that the public would be served by the best licensees available.

No licensee would have a "right" to have his license renewed. Each would be open to the risk that a competing applicant would offer a service preferable in some way, and thereby win the license away. The

[190] I FCC was to choose the best from among the applications before it, whether the incombant's record was "mediocre" or ."excellent. " This

is the principle of the marketplace; the public is assured the best products by opening the market to all sellers, comparing their products, and rewarding the best with the greater sales. The analogy in broadcasting is the competing application. The FCC is the public's proxy* It is we who must make the

choice among competitors; it is the public that receives the benefits

(or burdens) of our choice.

What we have done in this policy statement is comparable to providing that there could be no new, competing magazines, automobiles or break­

fast cereals unless a new entrant could demonstrate that the presently

available products are not "substantially" serving the public interest.

The affected industry's arguments on behalf of such a policy would be

quite similar to those presented by the broadcasters in this instance. But

this country has long believed that the public will be better served over the

long run by free and open competition. And after lengthy consideration it is still

my belief that, on balance, the principle is equally valid in the broadcasting

industry.

Given the harsh political reality that the broadcasters have the

power to obtain some measure of protection against competing applications,

there are at least some possible public benefits from the policy statement

we have drafted.

It is impossible, or at least unlikely, that there would ever be a

sufficient number of public organizations to contest each of the 7, 500 radio [191] and television station licenses in this country. Any truly effective efforts at reform will have to apply to aU stations equally. This FCC policy statement may have some salutary impact industry-uride.

What we have created, in effect, are four levels of performance:

(1) Not minimally acceptable. A licensee in this category will not have his license renewed, whether or not it is contested. (2) Minimally acceptable.

If it meets this standard, a licensee without a competing application will be renewed by the Commission. If it is challenged, however, it will be set for hearing. (3) Substantial service. If a licensee is challenged at renewal by a competing applicant, the hearing will be terminated if the examiner finds, after initial evaluation, that the licensee has been "substantially attuned to meeting the needs and interests of its area. " This amounts to a form of

"summary judgment, " saving both broadcaster and challenger the burden of a lengthy hearing likely to be futile. (4) Comparative public interest.

If a licensee under challenge by a competing applicant cannot meet the

"substantial" service standard, a full evidentiary hearing will be held. The licensee must then demonstrate that its renewal will serve the public interest, and would be comparatively preferable to awarding the license to the challenger.

The upshot may very well be an improvement in radio and television programming performance by all licensees.

At the present time many broadcasters know that a minimal per­ formance is all that's required for license renewal. This belief is exascerbated by an FCC majority's willingness to find that no news and public affairs adequately serves the public interest, Herman C.

[192] Hall, 11 F. C. C. 2d 344 (1968), and that a licensee on probation who

has bilked advertisers of $6000 through fraud is entitled to another probationary term . Star Stations of Indiana, Inc., 19 F. C. C. 2d 991,

996 (1969). Commissioner Cox and I have tried, so far without

success, to urge the application of some standards, however minimal, to the Commission's license renewal process. Renewal of Standard

B ro ad cast and T elevision L icen ses [Oklahoma], 14 F, C. C. 1 (1968);

Renewal of Standard Broadcast and Television Licenses [Ne,w York-

New Jersey], 18 F. C. C. 2d 268, 269, 322, (1969); District of Columbia,

Maryland, Virginia, West Virginia Broadcast License Renewals,______

F. C. C. 2d ______(1969).

The industry's response to the initial WHDH decision,

WHDH, Inc., 16 F. C. C. 2d, (1969), and the increased effectiveness of

public groups devoted to improving broadcasting has been confused

and irrational, and of mixed impact on programming. The policy

statement will remove much of this confusion.

The Commission has made it clear that it will not permit

chaos to reign, that the better broadcasters have nothing to fear,

and that all can get back to the task of programming their stations

in ways that serve the awesome needs of the American people for

quality entertainment, cultural enrichment, continuing education,

and information and analysis about life in the communities and world

in which they live. The more responsible broadcasters now know

[193] I. they wijl be protected from harrassment from audience or FCC,

On the oth^r hand, the public new clearly understands that

a new day has dawned; licenses will not be automatically renewed;

those licensees not offering "substantial" service are open to challenge.

The below-average broadcasters should respond to this new a tate of affairs by upgrading their programming from a "minimal"

to a "substantial" performance. They now have a very real

incentive to purchase this "renewal insurance" against the possibility

of a challenge.

Moreover, the statement only relates to competing license

challenges, not petitions to deny license renewals. Such petitions may

still be filed and considered against any licensee. Their consideration

in the future may very well be more rigorous than at present. No

sm art licensee will lightly risk walking too close to the cliff of

"minimal performance. " And, of course, a competing license

challenge may also be filed against any licensee in good faith,

even though it ultimately may be rejected by an examiner. Only

the broadcaster who is confident his performance is well above

average can be assured of the outcome.

And, in the last analysis, as the statement concedes, its

ultimate impact will only be know after the examiners, FCC and

courts have processed some cases. No statements of policy can

affect the FCC's will to act (or lack thereof) in deciding whether to

deny license renewal in 1/100 of 1%, 1/10 of 1%, 1% or 10% of the renewal

[194] cases coining before it. (With roughly 2500 license renewals a year, these percentages are equivalent to one denial every four years, two or three a year, 25 a year and 250 a year, respectively. )

No statement of policy can be the basis for predicting such percentages with any greater precision until the results are in.

There are legal and public relations considerations involved in issuing this statement as fait accompli rather than as proposed rule making for public comment. I will not review the issues here, except to say that I think it would have been wiser, on such a controversial matter, to use the rule making procedure.

I.cannot avoid reference, in passing, to the significance of this particular kind of necessary compromise with broadcasting's power. The record of Congress and the Commission over the years

shows their relative powerlessness to do anything more than spar with America's "other government, " represented by the mass media.

Effective reform, more and more, rests with self-help measures taken by the public. Recognizing this; the broadcasters now seek to curtail the procedural remedies of the people themselves. The industry's power is such that it will succeed, one way or another.

This is sad, because - -unlike the substantive concessions it has obtained from goverment from time to time--there is no turning

I.. back a procedural concession of this kind once granted. Not only

can the industry win every ball game, it is now in a position to

change the rules. [195] 1 have considerable sympathy and respect for my colleagues'

commendable and good faith effort to resolve this conflict between

formidable political power and virtually unrepresented public

^interest. They have tried. They really have. And it is not at all

clear to me that more than they have done would have been politically

possible, or could have withstood political appeal. It is not even

clear that today's effort is secure.

Thus it is, with no feelings save understanding, frustration

and sorrow, that I dissent.

[196]