In re Application of Esther Blodgett, Harvard, Ill., for renewal of
license of station WMCW, Harvard, Ill. (File No. BR-3094).
FEDERAL
COMMUNICATIONS COMMISSION
14
F.C.C.2d 342 (1968)
RELEASE-NUMBER:
FCC 68-821
August
7, 1968
[*342] MISS ESTHER BLODGETT, Radio Station WMCW, 205
E. Brainard Street, Harvard, Ill.
DEAR MISS BLODGETT: This refers to your
application for renewal of license of station WMCW, Harvard, Ill.
Our records disclose that on July 3, 1967, you
were issued an official notice of violation which contained citations for 14
rule violations and that you failed to respond to the notice until May 7,
1968. Section 1.89 of the rules requires a response within 10 days of the
date of the official notice.
The Commission has reviewed your response to
its official notice of violation, and after a careful study of your application
for renewal and your record of service to your community, it has determined
that a regular renewal of the license of station WMCW is warranted.
Accordingly, the license of station WMCW is renewed through December 1, 1970.
However, because of your repeated violations of
section 1.89 of the rules, the Commission has decided that you have incurred a
liability for forfeiture in the amount of $500. The notice of apparent
liability is being sent to you under separate cover.
Chairman Hyde absent. Commissioner
Bartley dissenting on the renewal of license and voting to designate
application for hearing. Commissioner Johnson
dissenting and issuing attached statement.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE,
Secretary.
WMCW License Renewal
[Letter from Ben F. Waple to Miss Esther Blodgett,
Aug. 7, 1968]
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
Before us today is the saga of an 11-year
battle of wits between this 34-year-old Federal bureaucratic institution and a
wily septuagenarian woman born and raised in the heartland of the
Midwest. Judging from the conclusion reached by the majority today, the
woman appears to have won.
I believe that this story is worth telling in
some detail. Its lessons are important both to an understanding of the
power of an individual in an age of seemingly overpowering institutions, and to
an understanding of the workings of the FCC.
The tale begins in an improbable village known
as Harvard, Ill. At last court, Harvard boasted a population of
5,019. Located just an [*343] LP's toss from the Wisconsin
State line, Harvard lies in the epicenter of our Nation's milk cow country.
In February 1955, radio station WMCW (which,
its letterhead explains, is short for the "Milk Capital of the
World") first took to the air, under the ownership and direct supervision
of station manager Esther Blodgett. Miss Blodgett is a lifetime resident
of the greater Harvard area, but, as subsequent events demonstrate, decidedly
worldly in the ways of Washington, D.C.
Difficulties with Miss Blodgett first began in
1956, when she filed with the Commission and application for renewal of WMCW's
license. The Commission staff noted the application was incomplete, and
deferred action. After further correspondence, Miss Blodgett completed
the application and the Commission elected to renew her license for a full
3-year term.
In 1959, the Commission was forced once again
to defer action on a WMCW renewal. This time Miss Blodgett neglected to
file the application until after her license had expired. When the
application did arrive it was, once again, incomplete. The Commission
again asked Miss Blodgett to complete the application form, and, later, again
elected to renew the license, although for the limited period of 1 year.
In 1961, Miss Blodgett maintained her superb
batting average by being deferred for a third time in the face of an impressive
list of multifarious violations, such as:
Failure to file her renewal application until
WMCW's license had expired;
Failure to comply with the publication
requirements of section 1.359;
Failure to file a complete application;
Failure to file financial reports for the
previous 2 years;
Failure to file an ownership report; and
Failure to adequately explain certain
violations listed in an official notice of violation issued in November 1964.
For reasons which remain enigmatic, the 1961
deferral was permitted to drag on until 1966, when we again relented and
granted WMCW a renewal for 1 year.
In each of these instances, the Commission was
satisfied that a mild rebuke would be sufficient to impress Miss Blodgett with
the seriousness of her cavalier attitude. But for all of our studied
leniency, Miss Blodgett continues to plod along at her own chosen pace, filing
requisite forms with the Commission whenever the fancy seems to strike her.
On June 10, 1967, this protracted Parkinsonian
struggle n1 between Miss Blodgett and the Federal
Government reached a climax. On that date, the Commission mailed to Miss
Blodgett an official notice of violation. By the terms of the notice, a
reply was to be filed with the Commission [*344] within 10
days. Not having heard from Miss Blodgett within that time, we mailed to
her an appropriate warning 1 month later. Still not having heard from her
as the summer waned, we deferred action on WMCW's renewal for a fourth time on
September 5, 1967.
n1 C. Northcote
Parkinson's well known Law of Standard Deviation is explained as involving a
known rate of ascension from the bottom to the top of the heap in bureaucratic
"In" boxes. Thus, for example, if it is known that it takes 24
days for a letter to rise from the bottom to the top of the "In" box
of a particular office, a person seeking to avoid having the bureaucracy making
any decision at all need only insure that a letter reaches that "In"
box every 23 days. When a letter arrives, the appropriate file (now near
the top of the heap) is returned to the bottom, to begin its ascent all over
again. If carried on long enough, Dr. Parkinson assures us, the
bureaucrat will never answer the first letter, since he will never see the file
come to the top of the "In" box. Parkinson, Parkinson's Law (Boston:
1957), pp. 99-100.
Naturally, we were delighted to hear from Miss
Blodgett eventually, even though nearly a year after our original notice of
violation. In a letter received in May 1968, Miss Blodgett informed us
that the violations initially complained of had been fully corrected.
Thus has ended, at least for the moment, the
tale of Miss Esther Blodgett and her struggle against the formalities of the
FCC. As the majority must recognize, this saga presents an extraordinary
problem of constancy of the sort which would baffle even John Donne. n2
The Commission, in determining to assess Miss Blodgett a $500 forfeiture,
manifests its hope that she will henceforth mend her unusual ways and display
more respect for Commission regulations and diligence in replying to Commission
inquiries. But it renews her 3-year license.
n2 Cf., "Woman's
Constancy," a love poem by John Donne:
"Now thou hast lov'd me one whole day.
To morrow when thou leav'st, what will thou say?
Wilt thou then Antedate some new made vow?
Or say that now"
"We are not just those persons, which we were?
Or, that oathes made in reverential feare
Of Love, and his wrath, any may forsweare?
Or, as true deaths, true marryages untie
So lovers contracts, images of those,
Binde but till sleep, deaths image, then unloose?
Or, your owne end to Jutifie,
"For having purpos'd change, and falsehood; you
Can have no way but falsehood to be true?
Vanie lunatique, against these scapes I could
Dispute, and conquer, if I would,
Which I abstaine to doe,
For by tomorrow, I may thinke so too." (pp. 4-5.)
For those not schooled in the rigors of 16th
centure poetry, Done has elsewhere supplied an abbreviated view of this problem
in prose:
"That women are Inconstant, I with any man
confess, but that Inconstancy is a bad quality, I against any man will maintain
. . ." --Paradozes, Chi, I "A Defense of Woman’s Inconstancy"
(p. 277). The Complete Poetry and Selected Prose of John Donne (introduction by
Robert S. Hillyer), Random House (1941)."
I am not convinced, however, that Miss
Blodgett's demonstrated indifference to this Commission will be altered by this
action. It seems clear, in the first place, that the majority's decision
only confirms what must have been suspected by Miss Blodgett all along -- that
however long she waited to reply to a notice of violation, the worst that could
happen would be an increase in postal rates. In repeatedly confirming
this notion, the Commission cannot express surprise that its licensees now
respond, like the pigeons of B. F. Skinner, to the behavior it rewards.
By winking at such behavior the Commission also lends credence to a gathering
crescendo of complaints which broadly charge that this Commission applies a
dual standard: a jaundiced eye and letter-of-the-law punctiliousness to far as
activities of members of the public seeking to participate in Commission
proceedings are concerned, while springing to the defense of broadcasters who
openly transgress the plain mandates of the rules. (See, e.g., Lamar Life
Insurance Co., Inc., 13 P. & F. Radio Reg. 2d 769, 778 (1968).)
In the second place, I am disturbed by the
Commission's reluctance to hold a hearing into the reasons for this history of
phlegmatic correspondence. We know too little about the circumstances
which may have compelled Miss Blodgett's procrastination. If, as the
evidence suggests, Miss Blodgett is at once station manager, announcer,
advertising agent, secretary, and owner of an unprofitable WMCW, then this
Commission may want to make allowances for the frail position of such meagerly
financed station. In this light, the standard forfeiture imposed would
appear to be too drastic an action.
On the other hand, it may be, as the evidence
is equally suggestive, that Miss Blodgett is simply lackadaisical by nature, or
even downright obstinate. In that event, a mere forfeiture, hand-in-hand
with a full-term renewal, does not go far enough.
In either event, it is my view that interested
members of the public should be given the opportunity to inform the
Commission's judgment. [*345] We have been informally
apprised by the FCC staff that WMCW's programing reflects conscientious
attention to local needs and interests. We understand, too, that the
community has repeatedly expressed its deep appreciation to Miss Blodgett for
her efforts at WMCW -- an appreciation luncheon having once coincidentally occurred
on the very day an official FCC communication was received. Such
admirable policies and community support should be encouraged by the
Commission. A hearing in the Harvard community could uncover such
evidence.
Perhaps the Commission's rules should be
changed in some respects that affect licensees like Miss Blodgett. In the
meantime we simply must insist that all licensees obey the Commission's
rules. It has been charged, with some justification, that the Commission
is all too ready to enforce its rules against small broadcasters, and equally
too willing to overlook infractions by corporate-owned stations. In my
judgment, the best way to eliminate such practices and dispel suspicions is to
make it our practice to insist on hearings in all renewal cases where issues
like this arise.
Accordingly, I dissent.