In re Applications of BRANDYWINE-MAIN
LINE RADIO, INC. For Renewal of Licenses of Stations WXUR and WXUR-FM,
Docket No. 17141 Files Nos. BR-4178,
BRH-1320
FEDERAL COMMUNICATIONS COMMISSION
12 F.C.C.2d 97; 12 Rad. Reg. 2d (P
& F) 710
RELEASE-NUMBER: FCC 68-298
March 19, 1968 Adopted
ACTION:
ORDER
JUDGES:
BY
THE COMMISSION: COMMISSIONER BARTLEY ABSTAINING FROM VOTING; COMMISSIONER
LOEVINGER DISSENTING AND ISSUING A STATEMENT; COMMISSIONER WADSWORTH NOT
PARTICIPATING; COMMISSIONER JOHNSON CONCURRING AND
ISSUEING A STATEMENT IN WHICH COMMISSIONER COX JOINS.
OPINION:
[*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.
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.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCUR:
[*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,
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
In
today's action, we have denied
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
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
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.
DISSENTBY:
LOEVINGER
DISSENT:
[*98] DISSENTING OPINION OF
COMMISSIONER LEE 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.