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In re Applications of BRANDYWINE-MAIN LINE RADIO, INC. For Renewal of Licenses of Stations WXUR and WXUR-FM, Media, Pa.


Docket No. 17141 Files Nos. BR-4178, BRH-1320




12 F.C.C.2d 97; 12 Rad. Reg. 2d (P & F) 710




March 19, 1968 Adopted













    [*97]  1.  The Commission has before it for consideration a motion filed by Brandywine-Main Line Radio, Inc. (WXUR), on March 12, 1968, and a letter of March 14, 1968, requesting temporary suspension of the proceedings in the above matter pending action by the U.S. Court of Appeals for the Seventh Circuit on the Commission's request for authority to conduct further rulemaking on the personal attack rules of the Fairness Doctrine n1 and pending conclusion of any further rulemaking which may be authorized by the court.


   n1 Motion to hold cases in abeyance and to authorize further proceedings, filed Mar. 1 1968, in the cases of Radio Television News Directors Association, et al. v. U.S. and FCC (Nos. 16369, 16498 and 16499), pending in the U.S. Court of Appeals for the Seventh Circuit.


   2.  As set forth in our Memorandum Opinion and Order (FCC 67-99, released Jan. 25, 1967), the above WXUR renewal applications were designated for hearing on a number of issues bearing on the applicant's qualifications to be a licensee.  The hearing has been in progress since October 2, 1967.  We are of the view that a temporary suspension of the proceedings at this juncture would serve no useful purpose and is not in the public interest.


   3.  Accordingly, It is ordered, that the above motion for temporary suspension of the proceedings, filed by Brandywine-Main Line, Inc., on March 12, 1968, Is denied.









    [*101]  CONCURRING OPINION OF COMMISSIONER NICHOLAS JOHNSON IN WHICH COMMISSIONER KENNETH COX JOINS (In re Application of Brandywine-Main Line Radio, Inc., for Renewal of Licenses of Stations WXUR and WXUR-FM, Media, Pa.) (Fairness to WXUR)


   I concur in the Commission's disposition of the motion before us and append these brief comments only in order not to leave unanswered the dissenting statement filed by Commissioner Loevinger.


   Over 1 year ago Brandywine-Main Line Radio, Inc., licensee of WXUR-AM and WXUR-FM of Media, Pa., applied for renewal of these broadcast licenses.  On January 25, 1967, the Commission designated the applications for hearing on a number  of issues bearing on the applicant's qualifications to be a licensee.  The hearing has been in progress since October 2, 1967.


   In today's action, we have denied Brandywine's request that we suspend the renewal hearing, pending action by the Court of Appeals for the Seventh Circuit in a separate case wherein the legality of the personal attack rules promulgated by the Commission in July 1967 are at issue.  (R.T.N.D.A. et al. v. U.S. and F.C.C. (case Nos. 16369, 16498, 16499).) In that case, the FCC has requested authority to revise further personal attack rules.  Brandywine notes that the product of the pending revision will probably be a "less restrictive" set of regulations than those presently on our books.  Therefore, it contends, it is entitled to take advantage of any modifications which might be favorable to its renewal case, and that a suspension of the proceedings is necessary to grant this deserved opportunity.


   But fairness to WXUR does not require such a suspension.  It is extremely unlikely that any changes in the rules will affect the situation under review in Brandywine's renewal hearing.  If by chance the new standards turn out to affect materially Brandywine's case,  the Commission will be more than willing to grant counsel the opportunity to introduce into the record whatever new evidence or contentions they consider appropriate.  Suspension of the hearing presently in progress will do Brandywine no good -- except insofar as it causes delay and thereby puts off the day when the Commission eventually renders judgment on the ultimate question of its qualifications as a licensee.


   In view of the simple and inconsequential procedural question at stake herein, Commissioner Loevinger is to be congratulated on both the length of his dissenting opinion and on the remarkable show of indignation he has mustered. As in his similar condemnation of the Commission's recent decision to ask the Court of Appeals for the Seventh Circuit for leave to revise the personal attack rules, Commissioner Loevinger's remarks distort the purpose and effect of our action.  (FCC public notice No. 13493, Mar. 1, 1968 (concurring opinion of Commissioner Cox).) They deserve, therefore, a brief response.


   First, it should be pointed out that, contrary to the impression created by Commissioner Loevinger's opinion, WXUR's performance is being judged on five separate issues -- not just the question of its compliance with the Commission's personal attack requirements.  In  [*102]  the Memorandum and Order originally designating the application for hearing, we defined those issues as:


(1) Whether the applicant has met the conditions set forth in the Commission's Memorandum Opinion and Order of March 17, 1965 (FCC 65-207), during its license period from April 29, 1965, to August 1, 1966;


(2) the efforts, if any, which the applicant has made to ascertain and serve the needs and interests of the public served by its stations;


(3) whether the applicant fully and candidly advised the Commission of its program plans in connection with its application for acquisition of control of the stations involved;


(4) the applicant's efforts to comply with the Commission's Fairness Doctrine, including the personal attack

principle; and


(5) whether the applicant has used the facilities of its stations to serve the sectarian and political views of its principals and to raise funds for their support rather than to serve the community generally, and whether this was misrepresented to the Commission in its application for acquisition of control of these stations.


   There would be no point to suspending a hearing, which has now been in progress since October 2, 1967, on the ground that the standards governing one of the five points at issue might soon undergo material modification -- even if such a material change were in the offing.


   In fact, no material change in the personal attack rules is contemplated by the Commission.  Commissioner Loevinger is well aware of this fact, since he participated in the meeting at which the matter of seeking authority from the court of appeals was discussed.  Nevertheless, he speculates that we may "abandon the prior personal attack principle as unsound, invalid, or, at least, indefensible in court.  * * *" I believe it important to record that Commissioner Loevinger speaks only for himself in this regard, and does not reflect the understanding or belief of the majority of the Commission.  It would be unfortunate if his characterization of the majority's intentions were to be used in support of a campaign to discredit the basic principle which Commissioner Loevinger originally endorsed but has now decided to regard with distaste.


   Since none of the five Commissioners who voted to seek authority to revise the rules share Commissioner Loevinger's new doubts about either the wisdom or the legality of the basic personal attack principle, the possibility is especially slim that the forthcoming revisions will bear on WXUR's case.  The WXUR licenses were designated for hearing before the present rules were promulgated.  To the extent that personal attack questions are involved in the hearing, they will relate to the principle as enunciated in individual cases decided before it was codified in the rules.  Therefore, any revision of the new rules will not affect Brandywine's case in any event.  Practically speaking, there is little chance that a radical change will occur.


   In sum, I believe the Commission's ruling in this case to be commendably expeditious and equitable as well as legal, and hope these few words of explanation will help to quell whatever specters have been raised by Commissioner Loevinger.









   (In re Application of Personal Attack Principle to WXUR)


   This matter comes before the Commission on a motion by WXUR for temporary suspension of a hearing on its license renewal, on the grounds that the Commission is in the process of revising the substantive principles involved in that hearing.  I think that fairness, rational procedures, and due process of law require granting the motion.  A somewhat detailed review of the facts is necessary to demonstrate this.


   On April 8, 1966, the Commission issued a Notice of Proposed Rulemaking (Commissioner Loevinger absent) proposing "to codify the procedures which licensees are required to follow in personal attack situations." (FCC 66-291, docket No. 16574.) The substance of the proposal was to add section 73.123 to the FCC rules, stating, in language set forth in an appendix to the notice, the obligation of a broadcast licensee to advise any person or group of an attack upon his honesty, character, or like personal qualities, within a specified time, and offering a reasonable opportunity to respond over licensee's facilities.  Subsection (c) related to editorializing and is not relevant here.


   On July 10, 1967, the Commission issued a Memorandum Opinion and Order adopting the rule relating to personal attacks as proposed in the April 1966 notice (8 FCC 2d 721 (1967)). (Commissioner Loevinger concurred with a separate opinion, 8 FCC 2d 728.) There were slight differences in the order and numbering of the clauses, but the operative language adopted was identical with that proposed in 1966.  The Commission opinion said that the purpose of adopting the rules was to "clarify and make more precise the obligations of broadcast licensees where they have aired personal attacks * * *" (par. 3).


 The opinion explicitly stated, "These rules will serve to effectuate important aspects of the well-established Fairness Doctrine; they do not alter or add to the substance of the doctrine." A footnote said, "The only new requirement in these rules are [sic] the time limits, * * * within which licensees must act to fulfill their substantive obligations when they have broadcast personal attacks * * *" (par. 3, footnote 3).


   On January 25, 1967, the Commission ordered a hearing on the application of WXUR for renewal of its license (FCC 67-99, docket No. 17141).  The principal issue concerned the compliance by WXUR with the Fairness Doctrine.  A number of groups and individuals charged WXUR with failure to comply with the Fairness Doctrine, particularly in respect to the personal attack principle, and WXUR consented to an evidentiary hearing in order to secure a determination of the controversy.  The Commission specified a number of issues, including an issue as to whether WXUR "has complied with the personal attack principle of the Fairness Doctrine" by following the procedures that had been specified in the personal attack rule proposed in 1966 and adopted in 1967, as noted above.


    [*99]  Subsequent to the promulgation of the personal attack rules, the Radio Television News Directors Association and others appealed the validity of the rules to the U.S. Court of Appeals for the Seventh Circuit.  That appeal is still pending.  On March 1, 1968, the Commission moved the court of appeals to hold that the appeal in abeyance and to authorize the Commission to conduct further rulemaking proceedings.  The entire ground of the motion was stated as follows:


   The ground of this motion is that the Commission, upon further consideration and consultation with the Department of Justice, has determined, Commissioner Bartley abstaining and Commissioner Loevinger dissenting, to set aside those parts of the rules at issue dealing with personal attacks (subparts (a) and (b)), and to conduct an expeditious rulemaking proceeding looking toward their revision.


   That motion was authorized and filed over my objection and dissent, for reasons which are set forth in my dissenting statement and will not be repeated here.


   Following the filing of that motion, WXUR moved the Commission for a temporary suspension of the proceedings involving the renewal of the WXUR license and the charges of violation of the Fairness Doctrine, including the personal attack principle.  The hearing in the WXUR matter started October 2, 1967, and has continued intermittently since then.  The hearing is in recess and will resume pursuant to the Commission's summary denial of the motion for a temporary suspension.


   In dissenting to the effort of the Commission to a revise its rules during the course of litigation over their validity, I suggested that the course being followed by the Commission "falls considerably short of the diligence, promptness, and candor which the Commission demands of its own licensees." The present action of the Commission illustrates and emphasizes that conclusion. The Commission has stated that the rules now before the court of appeals embody the personal attack principle of the Fairness Doctrine, adding only specific time limits for action.  Certainly the Commission cannot now be asking the court of appeals to hold the case in abeyance for modification of the time limits.  Such a motion would be patently frivolous and dilatory.  Therefore, the Commission must intend to make substantive revisions in the rules.


   Assuming, as we must, that the Commission, if authorized by the court, will make substantive revisions in the personal attack rules it will necessarily do either one of two things.  Either the Commission will change the substance of the personal attack principle which is embodied in the rules, or it will change the Commission's interpretation of the personal attack principle which is embodied in the rules.  No amount of logomachy or sophistry can avoid the conclusion that in reconsidering the personal attack rules the Commission either must change the substance or not change the substance.


   The Commission has already declared to the court of appeals that it desires and intends to change the rules -- which must mean to change the substance of the rules.  Therefore, the Commission is, in effect, committed either to abandon the prior personal attack principle as unsound, invalid, or, at least, indefensible in court, or to change its interpretation of this principle.


    [*100]  The hearing on the WXUR renewal involves the issue of compliance with the personal attack principle, which is stated there in almost the very words of the rule that the Commission now proposes to change.  If the Commission is about to admit that the principle is unsound or to change the principle by changing its statement and interpretation, then it certainly makes no sense at all to continue a hearing based upon the about-to-be-abandoned-or-modified principle.  But the problem is even simpler than this.  WXUR says that it must know what interpretation or view of the personal attack principle the Commission takes in order to know what evidence is relevant to the issue of compliance. The same problem confronts the other parties to the proceeding.  By insisting that the hearing examiner proceed with the WXUR hearing before determination of the uncertainty created by the Commission concerning the underlying principles involved, the Commission is stultifying that proceeding and frustrating the possibility of rational presentation or consideration of evidence on this issue.


   If the Commission was correct in stating that the personal attack rules merely codified prior precedent and added only specific time limits for action, then the court test of the present rules is a fair examination of the basic principles which the Commission has developed in this filed and which the Commission seeks to apply in the WXUR case.  If these principles are to be changed or abandoned, then the Commission should not only seek advantage to itself in its litigation but should give other parties whatever advantage there may be in the changes or abandonment of these principles.  The Commission cannot fairly, properly, and honestly demand that the validity of its principles be judged on the basis of some statement drafted specifically for the purpose of passing scrutiny before a court while it is simultaneously refusing to allow parties before it to be judged under the same statement of principles.  The present position of the Commission seems to be that the personal attack principle means one thing when it is applied by the Commission to a party being judged before it, but that it means something else when the Commission is being judged before a court on the validity of that principle.


   The Commission ruling on the WXUR motion not only casts further doubt on the propriety of the Commission motion in the court of appeals but forebodes increasing confusion and difficulty in this important and uncertain area during the coming months.  At a time when the Commission and the country may confidently anticipate that there will be a substantial number of complaints and charges relating to fairness and personal attacks growing out of the coming elections, the Commission has made it impossible for anyone to know what the applicable principles or rules are or what course the Commission will follow, if the court of appeals permits it to follow its own course.  The Commission now is needlessly and without purpose compounding confusion in a most delicate and dangerous area.


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