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In
re Application of LAMAR LIFE BROADCASTING CO. n1
For Renewal of License of Television Station WLBT and
Auxiliary Services, Jackson, Miss.
n1 Our
designation order (3 FCC 2d 784, 7 R.R. 2d 445 (1966)) in this matter specified
that the caption of the proceeding be changed from Lamar Life Broadcasting Co.
to Lamar Life Insurance Co. in order to reflect a transfer of control, approved
by the Commission on Dec. 2, 1965 (1 FCC 2d 1484, 6 R.R. 2d 308).However, since
in that action we granted an application for transfer of control of Lamar Life
Broadcasting Co. from P. K. Lutken, Maurice Thompson, and Fred C. Beard to
Lamar Life Insurance Co., Lamar Life Broadcasting Co. has remained, and is
still, the licensee of station WLBT and is the present renewal applicant.
Accordingly, since no party in the present action will be prejudiced, the
caption is hereby corrected to read Lamar Life Broadcasting Co.
Docket No. 16663 File No. BRCT-326
FEDERAL COMMUNICATIONS COMMISSION
14 F.C.C.2d 431; 13 Rad. Reg. 2d (P & F) 769
RELEASE-NUMBER: FCC 68-689
June
27, 1968
Adopted
CHAIRMAN
HYDE FOR THE COMMISSION: COMMISSIONERS COX AND JOHNSON
DISSENTING AND ISSUING A STATEMENT; COMMISSIONERS HYDE (CHAIRMAN), LEE AND
WADSWORTH ISSUING A FURTHER STATEMENT; COMMISSIONER BARTLEY ISSUING A SEPARATE
FURTHER STATEMENT; COMMISSIONERS
COX AND JOHNSON ISSUING A FURTHER STATEMENT.
OPINION:
[*431]1.This proceeding involves the application of Lamar Life Broadcasting Co.
(hereinafter Lamar), filed March 3, 1964, for renewal of its license to operate
television station WLBT on channel 3 in Jackson, Miss.On April 15, 1964, a
petition to intervene and to deny the renewal application was filed by the
Office of Communication of United Church of Christ; the Rev. Robert L. T.
Smith, a resident of Jackson,Miss.; and Dr. Aaron Henry, a resident of
Clarksdale, Miss.The United Church of Christ at Tougaloo,Miss., was joined
in the petition pursuant to its petition for joinder, filed June 10, 1964.
(Hereinafter these parties are collectively referred to as intervenors.) The
general tenor of their petition was that station WLBT had not served the needs,
tastes and interests of the substantial Negro population in its[*432]service
area and had, in its programming dealing with the racial issue, presented only
the segregationist viewpoint.
2.In our Memorandum Opinion and Order n2
we dismissed the intervenors' petition, since we believed they lacked standing
to intervene.Nevertheless, we considered the allegations therein, and we
concluded that serious questions were raised as to whether the licensee was
operating its station in the public interest.Thus, we granted a conditional
1-year renewal, instead of the usual 3-year renewal, so that the licensee could
"demonstrate and carry out its stated willingness to serve fully and
fairly the needs and interests of its entire area -- so that it * * * [could]
in short, meet and resolve the questions raised." n3 Subsequently, the U.S. Court of Appeals for the
District of Columbia Circuit, on appeal by the intervenors, reversed our order
and remanded the matter to us, although it retained jurisdiction, for further
proceedings consistent with its opinion.n4
n2 38 FCC 1143, 5 R.R. 2d 205,
released May 20, 1965.
n3 38 FCC at 1154, 5 R.R. 2d at
219.
n4 Office of Communication of
United Church of Christ v. Federal Communications Commission, 123 U.S. App. D.C. 328, 359 F. 2d 994,
7 R.R. 2d 2001 (D.C. Cir. 1966).
3.Pursuant to the court's mandate, we vacated our previous Memorandum Opinion
and Order, granted the petition of the aforementioned parties to intervene, and
designated the renewal application for an evidentiary hearing. n5 We specified hearing issues to determine:
n5 3 FCC 2d 784, 7 R.R. 2d 445,
released May 26, 1966.
(a) Whether station WLBT has afforded reasonable opportunity for the discussion
of conflicting views on issues of public importance;
(b) Whether station WLBT has afforded reasonable opportunity for the use of its
broadcasting facilities by the significant groups comprising the community of
its service area;
(c) Whether station WLBT has acted in good faith with respect to the
presentation of programs dealing with the issue of racial discrimination, and,
particularly, whether it has misrepresented to the public or the Commission
with respect to the presentation of such programming.
(d) Whether in light of all the evidence a grant of the application for renewal
of license of station WLBT would serve the public interest, convenience or
necessity.
The
burden of proof with respect to issues (a) and (b) was placed upon the
intervenors, with respect to issue (c), on the Broadcast Bureau, and with
respect to issue (d), on Lamar.
4.Since we considered the ultimate issue to be the probable future performance
of the applicant, we directed, without specifying the weight or significance to
be accorded it, that evidence relating to station operation up to the date of
the hearing was to be admitted by the hearing examiner.Also, we directed that
he admit material and relevant evidence which was not unduly remote in time.Pursuant
to our Order, hearings were conducted in Jackson, Miss., during May
of 1967.n6
n6 On June 14, 1968, Lamar
requested an extension of time from June 14 to June 24, 1968, to file proposed
corrections to the transcript in this proceeding, and counsel for the Broadcast
Bureau and for the intervenors consented to a grant of the request.Lamar's
request is granted, and the proposed corrections are accepted.The intervenors'
proposed corrections to the transcript, filed on June 25, 1968, are also
accepted.
[*433]5.By his Initial Decision, FCC 67D-54, released October 17, 1967,
Examiner Jay D. Kyle concluded that renewal of the WLBT license would serve the
public interest, convenience and necessity and, therefore, he recommended a
grant of the application.With the possible exception of a few isolated
incidents, Examiner Kyle determined that the allegations made by the
intervenors, which were of a sufficiently serious nature to merit an
evidentiary hearing, were neither corroborated nor substantiated at the
hearing.Rather, the examiner concluded that the record demonstrated that WLBT
has consistently afforded the right of expression over its facilities to
persons of contrasting views to those expressed over the air, that WLBT
afforded reasonable opportunity for the use of its facilities by the
significant area community groups, including the Negro community, and that the
record was devoid of any evidence that WLBT misrepresented either to the
viewing public or to the Commission, its programming policy with respect to the
racial issue or that it did not act in good faith in the presentation of
programming on that issue.
6.On June 4, 1968, we heard oral argument, en banc, in this proceeding.We have
considered the Initial Decision in light of the pleadings n7 and oral argument, and except as modified below and
in the appendix, we adopt the Initial Decision.While we are in agreement with
the examiner's conclusion that the intervenors failed to corroborate or substantiate
virtually all of their allegations upon which the hearing was predicated, and
while we are persuaded that the examiner correctly resolved all of the
designated hearing issues in Lamar's favor, n8 we believe that the importance of the matter compels us to set forth
our views at this time.
n7 Before us for consideration
are: (a) Exceptions and a supporting brief which were filed on Nov. 16 and 27,
1967, respectively, by the intervenors; (b) exceptions and a supporting
statement and brief, filed on Nov. 16, 1967, by Lamar; (c) a statement in
support of the Initial Decision, filed Nov. 15, 1967, by the Chief, Broadcast
Bureau; (d) a reply to brief and exceptions, filed Jan. 15, 1968, by the
intervenors; (e) a reply to brief and exceptions, filed Jan. 15, 1968, by
Lamar; and (f) a reply to brief and exceptions, filed Jan. 15, 1968, by the
Chief, Broadcast Bureau.
n8 Since our decision is based on
the preponderance of evidence adduced at the hearing, we are of the opinion
that the intervenors' argument that they only had the burden of going forward
with evidence in the first instance on hearing issues (a) and (b), that the
Broadcast Bureau only had the burden of going forward on issue (c), and that
the station had the actual burden of proof on those issues, is mooted.
7.Before proceeding with our discussion of the evidence and of our findings and
conclusions thereon, we believe that we should clarify the status of 11 hearing
exhibits which were identified in the hearing but which the record fails to
disclose were formally admitted in evidence.When it became apparent during the
course of the oral argument that the intervenors were of the opinion that these
exhibits had been admitted and the applicant believed that they had not, the
presiding officer permitted the parties to submit comments setting forth their
views in detail.In response to this invitation, counsel for the applicant,
intervenors and the Broadcast Bureau notified the Commission that they were of
the view that these exhibits should be deemed part of the hearing record.Since
there is no longer any objection to the admissibility of these exhibits, we
shall consider them in reaching our decision in this matter.n9 Our findings and conclusions in the next five
paragraphs are based upon these exhibits.
n9 The exhibits were identified at
Tr. 87-88 as first, second, etc.The examiner reserved and we assign exhibit
numbers as follows: The first document will be marked "Intervenors'
Exhibit 100"; the second, "Intervenors' Exhibit 101 ", etc.
[*434]8.In 1955 the National Association for the Advancement of Colored People
(NAACP) made certain allegations of bias in racial matters by Fred Beard, the
then manager of WLBT, and urged the Commission to investigate his activities.The
Commission referred the matter to WLBT for comment, and the licensee, by letter
of December 8, 1955, submitted a general denial. Thereafter, the
Commission, by letter of January 10, 1956, advised WLBT that if further
information was needed, it would be notified.
9.In 1957 WLBT refused a request by the NAACP for time to reply to a program
entitled "The Little Rock Crisis," on which local public officials
had expressed their views.The NAACP complained to the Commission, and the
Commission denied the request for equal time since section 315 of the
Communications Act did not apply to the situation and since, although a station
is required to be fair in the presentation of controversial issues, in the
light of the no-censorship provisions of section 326 of the act, the Commission
had no power over specific program content.
10.In 1958 the Commission brought to WLBT's attention the fact that charges of
bias had been made by the NAACP in 1955 and 1957 and that its license renewal
application had been deferred pending receipt of a statement from WLBT as to
its policy on controversial issues of public importance.WLBT replied that while
network programs consistently favored desegregation, and while the station had
refused local requests for time to rebut such programs, its locally originated
programs attempted to strike a fair balance between racial segregation and
integration points of view.WLBT further stated that it considered the 1957
"Little Rock" program to be a non controversial one by elected
officials, and did not feel obligated to furnish rebuttal time.
11.In 1959 the Commission sent a letter to the NAACP complainant (with copy to
WLBT), stating that a 1955 show (with the alleged deletion of Mr. Thurgood
Marshall's participation and substitution of a "cable trouble" sign)
was, insofar as the deletion of the program was concerned, within the
discretion of the licensee, but that the untruthful use of a "cable
trouble" sign (if it occurred) would have been wrongful.The letter further
stated that the Commission did not know the content of the "Little
Rock" program, but that if, as claimed by WLBT, it was merely a plea for
clam and public order by elected officials, no fairness question arose, whereas
if it was partisan, an obligation to afford rebuttal time was engendered.In any
event, the Commission's letter stated that a reasonable mistake in licensee
judgment was not to be considered fatal.
12.Thus, as early as 1957, WLBT was subject to charges that its programming
concerning racial matters was, in the opinion of certain persons, violative of
its duty to be balanced and fair in its presentations.However, the Commission
did not then find these charges to be substantiated or serious enough to
warrant further proceedings.
13.Hearing issue (a) pertains to whether station WLBT has afforded reasonable
opportunity for the discussion of conflicting views on issues of public
importance.The examiner so found and, based upon a preponderance of the
evidence, we concur in his conclusion.The[*435]examiner found, inter alia, that
the "Comment" program series was an excellent one, that the Rev.
Robert L. T. Smith was accorded fair and equitable treatment by WLBT in his
1962 political campaign, and that the station did not improperly treat the
alleged derogatory remark about TougalooCollege on the 1963 "Meet
Your Candidate" program.We believe that it would serve no useful purpose
at this time to expand on the examiner's findings on these matters.Suffice to
state that the record supports his conclusions.
14.While we cannot conclude that the licensee's history of fairness doctrine
compliance has been exemplary, we must agree with the examiner's conclusion
that the intervenors have failed to prove the many serious incidents which they
alleged.One prime example of such failure is the 1957 forum program on
"The Little Rock Crisis" presented by station WLBT.While we believe
that the requirements of the fairness doctrine would have applied to the
program had it been a partisan one, despite WLBT's contention that it was only a
report to the people by elected public officials, the record is devoid of any
evidence as to the content of the program, other than the unsubstantiated
allegation that it discussed the maintenance of segregation.Accordingly, the
record does not support the intervenors' contention that WLBT was chargeable
with a violation of the fairness doctrine in its presentation of that program.
15.Similarly, the intervenors have repeatedly argued that WLBT violated the
fairness doctrine by its carriage of a series of "Freedom Bookstore"
announcements during much of the renewal period.While they assert that the
organization is an anti-civil rights, prosegregation group, there is no
probative evidence to this effect.Our conclusion in this regard would be the
same even if the intervenors' rejected exhibits 18 and 50 had been admitted.Our
examination of exhibit 18 indicates that it is a mere statement in a letter
written by Dr. A. D. Beittel (who was a witness at the hearing) to the effect
that Fred Beard operated the bookstore in conjunction with the TV station.Such
evidence, were it within Dr. Beittel's personal knowledge, should have been
offered through him and not through a letter.Exhibit 50 is only the text of
spot announcements for various prima facie, patriotic works.n10 Accordingly, while we agree that the announcements
were carried, there is no evidence that their carriage constituted a violation
of the fairness doctrine.
n10 Intervenors' exception 143
concerns this matter.The transcript references in support of the intervenors'
position in that exception have likewise been examined and do not support the
intervenors' claim.
16.Our study of the record indicates that only in one instance has WLBT been
proven to have violated the requirements of the fairness doctrine.In its
presentation from September 3 to September 30, 1962, of a series of spot
announcements paid for by the Jackson Citizens Council urging support for the
council because, the spots asserted, the Communists were behind the racial
agitation then present inMississippi, the station incurred the obligation,
which it did not fulfill, to present the opposing viewpoint.n11 However, as we pointed out in our 1949
"Editorializing Report," n12
an isolated failure, occasioned by an[*436]honest mistake or a good faith error
in judgment, to comply with the fairness doctrine should not result in action
adverse to a station's license.Thus, in our view the record demonstrates that
station WLBT has provided reasonable opportunity for the discussion of
conflicting views on important public issues.
n11 Although WLBT claimed that it
did not realize that the fairness doctrine applied to commercial paid spot
announcements, it is clear that the doctrine is applicable.See WSOC
Broadcasting Co., FCC 58-666, 17 R.R. 548 (1958).
n12 13 FCC at 1255-1256, 26 R.R.
at 1910-1911.
17.We now turn our attention to the issue of whether the licensee has afforded
reasonable opportunity for the use of its facilities, and has adequately served
the needs, tastes, and interests of the significant groups comprising its
service area.The mainstay of the intervenors' evidence on this issue was its
monitoring study of WLBT programming, which it conducted during the March 1 to
March 7, 1964, period, and which, it has urged, clearly demonstrates that
broadcast service to the Jackson Negro community was wholly inadequate during
the license renewal period.Our examination of the exhibits comprising the
monitoring study (intervenors' exhibits 1-4) persuades us that the examiner
correctly concluded that the study was of little probative value and was of
little significance to a resolution of the proceeding.The intervenors' exhibit
3, the most significant part of the monitoring study, is little more than a
summation of selected WLBT locally originated programming, primarily news
broadcasts, during the monitored week.There is nothing in that exhibit to
support a conclusion that WLBT was or was not serving the needs, tastes, and
interests of the substantial Negro population in its service area.
18.The other significant portion of the monitoring study, intervenors' exhibit
2, is no more than a list of WLBT locally originated programs broadcast during
the monitored week.Other than the indication that there was Negro participation
per se only in the programs "Our Colleges" and "Voice of Good
Will," its content is limited to a program list as opposed to any
meaningful programming analysis.
19.We are persuaded, however, that during the June 1, 1961, to May 31, 1964,
renewal period, Negro participation per se in WLBT's locally originated
programming was limited.For example, the record indicates that during that
period there were no Negro appearances on the programs "Teen Tempos,"
"Romper Room," and "Youth Speaks," and that religious
programming of special interest to the Negro community was limited to one
program, "Voice of Good Will." While the absence of Negroes in
programming which a station broadcasts is an indication of lack of broadcast
service to the Negro community, it is by no means determinative of it.n13 Other factors must enter into our consideration of
the matter.
n13 We do not wish to downgrade
what we consider to be the crucial significance of active and increased Negro
participation in the broadcast communications filed.Indeed, our remarks should
certainly not be construed to imply that a broadcast station could serve the
needs and interests of any substantial minority group population within its
service area by ignoring them.
20.In this regard, one of the most serious allegations made by the intervenors
against WLBT was that the station deliberately interfered with portions of
network programming of special interest to the Negro community which it would
otherwise have carried and substituted the sign "Sorry -- Cable Trouble
" to avoid such programming.This allegation, if proven, would have caused
us the utmost concern.However, the examiner, after hearing evidence given on
the only two[*437]alleged incidents raised by the intervenors, pertaining to
the NBC network programs, a 1955 "Home" program and "The
American Revolution of '63 ", concluded that the charge was unfounded.Our
review of the record indicates that the examiner did not err in his conclusion.
21.We also note that there has been a marked improvement in Negro participation
in WLBT locally originated programming since June of 1964.Our designation order
in this proceeding, although not specifying its weight or significance,
permitted the reception of post renewal period programming evidence, since the
ultimate issue was the probable future performance of the applicant. We believe
that evidence of this nature is properly before us and merits our consideration
in our overall evaluation of WLBT's performance.Since the question is not one
of proven past conduct found contrary to the public interest which is sought to
be weighed against present meritorious conduct or representations that a
station will reform in the future, our decisions n14 which hold that such evidence should not be
considered are inapposite to the present situation.Here past serious
misconduct, while alleged, has not been proven.While prior to June of 1964,
WLBT programmed only one Negro religious program, "Voice of Good
Will," it now additionally presents "Faith for Life" and
"TV Gospel Time." A rotational schedule respecting programming of
various religious services, which includes Negro ministers, was instituted by
WLBT in 1965.Negro participation in the program "Teen Tempos," while
lacking before 1964, was initiated in September of 1965.Although there is some
evidence that the courtesy titles of Mr., Mrs., and Miss were not used on
occasions when referring to Negroes over the air and that the derogatory terms
"Nigger" and "Negra" were used by one and possibly two WLBT
commentators at times, the record clearly indicates that such practices have
ceased.Other similar programming improvements have been properly noted by the
examiner.
n14 See, e.g., KWK Radio, Inc., 34
FCC 1039, 25 R.R. 577 (1963), and Palmetto Broadcasting Co., 33 FCC 250, 23
R.R. 483 (1962).
22.To summarize, after our review of all of the evidence of record in this
proceeding, we can reach no conclusion other than that the preponderance of the
evidence of record firmly establishes that station WLBT has been, and continues
to be, satisfactorily complying with our 1960 "Programming
Statement," n15 which requires licensees to
"take the necessary steps to inform themselves of the real needs and
interests of the areas they serve, and to provide programming which in fact
constitutes a diligent effort, in good faith, to provide for those needs and
interests," including inter alia, service to minority groups.The
intervenors' many charges, while most serious on their face, were found by the
examiner to be unproven and in this evaluation we concur.We caution, however,
against any conclusion that WLBT's performance during the period in question
was spotless or a model of perfection to be emulated by other stations.Such a
conclusion would not be supportable by the record before us.We only conclude
that the intervenors have failed to prove their charges and that the
preponderance of the evidence before us establishes that station WLBT has
afforded reasonable[*438]opportunity for the use of its facilities by the
significant community groups comprising its service area.
n15 FCC 60-970, 20 R.R. 1901
(1960).
23.We also concur in the examiner's conclusion regarding issue (c), that there
is no evidence in the record which would indicate that WLBT has misrepresented
either to the public or to us its programming on the issue of racial
discrimination or that it has acted in bad faith respecting the presentation of
such programming.Our examination of the record indicates that the examiner did
not err in his evaluation of the record before him on that issue, and that
renewal of the WLBT license will serve the public interest.
24.In view of the foregoing, we conclude that the Initial Decision reached a
proper result and should, with minor corrections, be affirmed.
25.While, as stated above, we agree with the examiner's determination that the
charges made against WLBT by the intervenors were in large measure not proben,
we wish to emphasize that we sincerely appreciate the strenuous efforts exerted
by the United Church of Christ and the other intervenors to ascertain the
nature of the programming of WLBT and to bring it to our attention.They have
performed a valuable public service, and they can be sure that the recent
marked improvement in WLBT's local programming which this record discloses is
due in no small part to their efforts.
26.Accordingly, It is ordered, That the request for extension of time in which
to file proposed corrections to transcript, filed by Lamar Life Broadcasting
Co. on June 14, 1968, Is granted, that the corrections to the transcript, filed
June 21, 1968, by Lamar Life Broadcasting Co., Are accepted; and that the
proposed corrections to the transcript, filed on June 25, 1968, by the
intervenors, Are accepted.
27.For the foregoing reasons we conclude that the application of Lamar Life
Broadcasting Co. for renewal of license of television station WLBT and
auxiliary services to operate on channel 3, Jackson,Miss., should be
granted, such license to expire June 1, 1970.n16 In its Judgment, filed March 25, 1966, remanding this case, the Court
of Appeals for the District of Columbia Circuit "[retained] jurisdiction
to dispose of the case when the record is returned following the proceedings on
remand."
n16 Had the 1964 renewal
application been granted in the normal course of business it would have expired
on June 1, 1967, and a subsequent renewal would expire on June
1, 1970.
28.Accordingly, the General Counsel Is directed to report these proceedings and
this Decision forthwith to the court.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONERS
KENNETH A. COX AND NICHOLAS JOHNSON
WLBT LICENSE RENEWAL
[In re application of
Lamar Life Broadcasting Co., Docket No. 16663]
I. Background
This case began 4 years ago, when a petition to deny the June 1964 renewal
application of Jackson, Miss., television station WLBT was filed
by three parties. n1 The petitioners were the Office of
Communication of the United Church of Christ, Rev. Robert L. T.
Smith, and Mr. Aaron Henry.The office is an organization established by the
United Church of Christ to protect citizen rights in broadcasting.n2 Messrs. Smith and Henry are leaders of the
Mississippi Negro community.n3 Their petition,
which represented the culmination of a decade of complaints by Jackson Negroes
against WLBT, alleged that the station systematically excluded Negroes from
access to its facilities and that it had systematically promoted segregationist
views and denied presentation of opposing views supported by Negroes.n4
n1 Petitioners' petition to
intervene and to deny application for renewal, Apr.
8, 1964,
pp. 1-5.(Hereafter called petition to deny.)
Initially, the Mississippi Chapter
of the American Federation of Labor-Congress of Industrial Organizations also
sought to intervene in the 1964 renewal proceedings.Petition protesting grant
of application, requesting hearing and for other relief, May
29, 1964. However,
the union made it clear when it filed its petition that, "The State
AFL-CIO's objections to the renewal of the licenses to these stations do not
relate to racial matters * * *." Letter to Chairman E. William Henry, Apr.
30, 1964, p. 1.See also The Clarion Ledger-Jackson Daily News, Apr. 26, 1964, §
A, p. 14, attachment (unnumbered) to AFL-CIO petition, supra.
n2 Petitioners' reply to
opposition to petition to intervene and to deny application for renewal, July
13, 1964,
attachment A, exhibits Nos. 1 and 2.
n3 Reverend Smith, a resident of Jackson,Miss., is past treasurer of the
Mississippi Freedom Democratic Party, a member of the State NAACP, and a former
candidate for Congress on the Freedom Democratic ticket for the district
embracing the Jackson area.Record, pp. 240-243.
Aaron Henry is a pharmacist
in Clarksville, Miss.He has served as president of theTulhomaCountyNAACP,
State president of the Mississippi NAACP, chairman of the Freedom Democratic
Party's delegation to the 1964 National Democratic Convention, State chairman of
the Mississippi Voter Registration Educational League, and 1963 candidate for
Governor of Mississippi on the Freedom Democratic Party ticket.Record, pp.
520-525.
n4 Petition to deny, pp. 2-3, No.
1, supra.
[*443] The FCC refused to accord the petitioners official standing to
participate in the renewal proceeding.n5
But the Commission did purport to take seriously their claims -- as well as the
findings of two FCC investigators who had been dispatched to scrutinize WLBT's
activities.n6 The Commission took the highly
unusual step of granting the station a 1-year license, plainly probationary in
nature.Renewal was conditioned on the station's strict adherence to the
fairness doctrine, prompt initiation of contacts with Negro leaders, and the
command that WLBT "immediately cease discriminatory programming
patterns." n7
n5 Lamar Life Broadcasting
Company, 38 FCC 1143, 1149 (1965).
n6 Id. at 1154.
n7 Ibid.
Unsatisfied, the petitioners took an appeal to the U.S. Court of Appeals for
the District of Columbia Circuit.The court reversed. n8 In a decision which one distinguished commentator
has said will "revolutionize the present law of participation in
administrative proceedings," n9
the court held: (1) That petitioners had "standing" to appear before
the FCC, in their capacity as representatives of an important segment of
the Jackson viewing public; and, (2) that the petitioners' allegations
were sufficiently serious and plausible to require the agency to hold a full
evidentiary hearing to decide whether WLBT's record merited renewal of its
license."[A] history of programming misconduct of the kind alleged,"
that court said, "would preclude, as a matter of law, the required finding
that renewal of the license would serve the public interests." n10
n8 Office of Communication of
United Church of Christ v. F.C.C., 359 F. 2d 994 (D.C. Cir. 1966).
n9 Reich, "The Law of the
Planned Society," 75 Yale L.J. 1228, 1255 (1966).
n10 359 F.2d at 1007.
The court ordered the Commission to permit public representatives to
participate in the case because, it held, experience had taught that the public
interest could not be trusted to the agency's exclusive discretion:
The theory that the Commission can always effectively
represent the listener interests in a renewal proceeding without the aid and
participation of legitimate listener representatives fulfilling the role of
private attorneys general is one of those assumptions we collectively try to
work with so long as they are reasonably adequate.When it becomes clear, as it
does to us now, that it is no longer a valid assumption which stands up under
the realities of actual experience, neither we nor the Commission can continue
to rely on it.n11
n11 Id. at 1003-4.
Now,
2 years after the court issued its opinion, the Commission has reconsidered the
facts requiring the original 1-year renewal, this time with the aid of the
petitioners' participation in a full evidentiary hearing. n12
n12 It should be noted that the
petitioners' aid to the Commission over the extended time of this action is not
a routine occurrence at the FCC as the majority tacitly agrees in its opinion:
"* * * we wish to emphasize that we sincerely appreciate the strenuous
efforts exerted by the United Church of Christ and the other intervenors to
ascertain the nature of the programming of WLBT and to bring it to our
attention.They have performed a valuable public service * * *." Majority
Opinion at par. 25.
The result is dismaying.The Commission's former show of concern for the public
interest has been replaced by all-out indifference.In May 1965, the Commission
found WLBT's performance sufficiently disturbing to warrant a special,
short-term, probationary renewal. n13
In June 1968, the Commission looks over the same record and declares it clean
enough to justify a routine, rubberstamped, 3-year renewal.Thus, 3 years later,
the Commission awards what would have been the licensee's lot had the church
and its allies never mustered the resources necessary to prosecute this
litigation.Indeed, the Commission today awards WLBT two full-term renewals --
for the periods 1964-67 and 1967-70, with no special terms or conditions.n14 What was once an unfortunate – though understandable
and corrigible -- attempt by[*444]the agency to ease its administrative chores
has now become a discredit to the administrative process. It is a serious piece
of obstruction to participatory democracy and the efforts of American
government to establish confidence among Negro and other citizens who have been
victimized by discrimination.n15
n13 38 FCC at 1154-1155. When the
Commission designated this matter for hearing, after its remand from the court
of appeals, the Commission's earlier opinion was "withdrawn," 3 FCC
2d 784, 785 (1966). Whether or not the legal effect of this
"withdrawal" is to completely vitiate the findings of fact and
conclusions of law recorded in that opinion, as well as to vacate the
particular remedy based on those findings and conclusions, this certainly does
not change the historical fact that the Commission has found facts on past
occasions wholly at odds with the "findings" underlying today's
decision.
n14 In other words, the 1965
decision having been vacated, no final decision has been reached until today on
the 1964-67 renewal period.The majority correctly notes that by reason of the
delay in bringing this case to final disposition, we are now called upon as
well to act upon the current renewal period, which extends through 1970.Majority
Opinion note 15.Of course today 's decision is not "final" since the
court retained jurisdiction to make a final disposition of the case.Majority
Opinion at par. 27.
n15 See, e.g., Report of the
National Advisory Commission on Civil Disorders, ch.15, "The News Media
and the Disorders," pp. 201-213 (1968).
Today we dispose of the three issues the Commission ordered considered in the
hearing which took place after the controversy was remanded by the court of
appeals.The first of these questions is whether WLBT has been fair, within the
meaning of the Commission's fairness doctrine, in its treatment of
controversial issues of public importance.Here paramount concern is focused on
the political issue of integration and other matters related to race
relations.The second question is whether WLBT has permitted Negroes to
participate meaningfully in its programming.The third question is whether the
licensee misrepresented its programming policies and other important matters to
the Commission and to the public.
The Commission today holds, on each of these points, that WLBT's record is
sufficiently spotless, its service to the public interest sufficiently
meritorious, to justify renewal of its broadcasting license.To reach this
extraordinary result, the Commission uses extraordinary techniques.
First, it disregards standards for conducting administrative hearings
established by its own precedents, n16
and even by the court of appeals in this very case.n17 New standards of procedure favoring the applicant-licensee
are substituted, without which today's decision would be inconceivable.Second,
the Commission disregards and misreads the facts adduced at the hearing and in
previous complaints against WLBT brought to its attention over the past decade. n18
n16 See notes 28-31, infra, and
accompanying text.
n17 See notes 20-27, infra, and
accompanying text.
n18 See pt. III, infra.
II. How the Commission Recasts
Procedural Standards to Favor the Renewal Applicant
A. The
period during which the applicant's performance was subject to evaluation: How
the Commission takes the spotlight off the applicant's performance during the
relevant 1961-64 period, when WLBT was a blatant mouthpiece for segregationist
views, and focuses it instead on the irrelevant post-1964 period when its
programming has undergone minimal improvements
The threshold question we face in passing on the issues at stake in this case
is to what period must we look for evidence?Originally this problem was not a
problem at all.The facts were the programming practices of WLBT during the
period preceding the 1964 filing of its renewal application.This meant,
primarily, the years 1961-64 -- the license period immediately prior to the
application's filing, and license periods previous to that, dating back to 1953
when the station first went on the air.
Since the date is now 1968, not 1964, the question arises as to what weight, if
any, should be given WLBT's programming after its renewal application was
filed.This question is of the first importance, since it is generally agreed
that the church's petition put the fear of God into[*445]WLBT's management and
some measure of improvement has occurred with respect to its programming
policies since that time.n19
n19 See notes 92-95, infra, and
accompanying text.
The court, in its decision remanding the case for a hearing, declined to pass
on the question of the relevance, if any, of WLBT's performance after its
application was filed, since the Commission itself had not ruled on this point.
But there was no doubt that the importance, if any, of post-application
performance was to be distinctly secondary to past performance.These
instructions from the court were well grounded in precedent and policy.
The court cautioned the Commission against allowing WLBT to salvage its case by
putting on a good show while its renewal application was pending.In doing so it
said:
We agree [with the thrust of the Commission's decision to grant WLBT a 1-year
renewal] that a history of programming misconduct of the kind alleged would
preclude, as a matter of law, the required finding that renewal of the license
would serve the public interest.It is important to bear in mind, moreover, that
although in granting an initial license the Commission must of necessity engage
in some degree of forecasting future performance, in a renewal proceeding past
performance is its best criterion.When past performance is in conflict with the
public interest, a very heavy burden rests on the renewal applicant to show how
a renewal can be reconciled with the public interest.Like public officials
charged with a public trust, a renewal applicant, as we noted in our discussion
of standing, must literally "run on his record." [Emphasis
added.] n20
n20 Office of Communication of the
United Church of Christ v. FCC, 359 F. 2d 997, 1007 (D.C. Cir. 1966).
Gradually,
as this proceeding has gone through its various phases inside the Commission,
the court's admonition to concentrate on the applicant's past performance has
been pushed further and further into the background.
The first stage after remand was the Commission's order designating the matter
for an evidentiary hearing, in which it specified the questions on which he
hearing examiner was to receive evidence offered by the parties.The Commission
began the process of clouding the issue by instructing the examiner that the
"ultimate issue here is the probable future performance of the applicant
with respect to serving the public interest * * *." n21 Not one to disregard a hint from his superiors, the
examiner seized on this phrase – even though the Commission had guardedly
referred to the relevance of post application evidence by saying that –
n21 Lamar Life Broadcasting Co., 3
FCC 2d 784, 787 (1966). But see Commissioner Cox's dissenting opinion,
expressing his concern at the direction in which the majority was heading, 3
FCC 2d at 789-790. See also his objection to the majority's denial of
reconsideration, 5 FCC 2d 37, 46-48 (1966).
In the circumstances, we believe that evidence of this nature should be
received, without here deciding its weight or significance in the overall
hearing record to be made before us.n22
n22 3
FCC 2d 784, 787, note 2.
The
record of the hearing contains numerous instances in which the examiner
sloughed off the efforts of the church's counsel to remind him of the relative
insignificance of post application performance.n23
n23 Counsel for the petitioners
made a general objection to all such evidence early in the proceeding:
"Let me state at this time, it is an issue that will soon come up
repeatedly in the course of the hearing, that the petitioners object to the
receipt of any evidence about improvements in programs following the filing of
the petition * * *." Record, 323.
At length, when the examiner drafted his initial decision, he selectively
quoted the Commission's decision so as to render "probable future
performance" the only standard he had to apply.Indeed, his opinion states
simply that "the renewal period is June 1, 1964, to May 31, 1967." n24
n24 Initial Decision, conclusions,
par. 1.
What is worse, the examiner made little or no effort, in describing, analyzing,
or evaluating the evidence, even to segregate the facts of the 1961-64 period
from those of the 1964-67 period.n25
Thus the Commission [*446](or a court), in reviewing his decision, has no ready
basis for determining what the applicant's "record" was at all, let
alone whether its improvements were such that they should outweigh past
derelictions.The majority did not, however, seek to have counsel dispel the
confusion created by the examiner's decision by raising this issue during oral
argument.
n25 Initial Decision, passim.
In today's opinion explaining its decision to renew the license without its
previous reservations, the majority drops any pretense of making the applicant
"run on his record." It states simply, with bland indifference to the
gist of its own earlier decisions, and with total silence as to the remand
instructions of the court:
Since we considered the ultimate issue to be the probable future performance of
the applicant, we directed, without specifying the weight or significance to be
accorded it, that evidence relating to station operation up to the date of the
hearing was to be admitted by the hearing examiner.n26
n26 Majority Opinion at par. 4.
As
a glance through the Commission's brief opinion will show, there is in fact no
difference at all in the weight accorded evidence drawn from the applicant's
"record" and evidence of its performance after the petition was
filed.n27 Every fact which appears favorable
to the Commission's result is simply plucked from the record and held proudly
aloft, with no attempt to put it in any sort of meaningful perspective.
n27 Id. at pars. 17-22.
Before this case began, Commission precedent left no room for doubt that a
broadcast licensee would not be permitted to profit from an
"upgrading" of programming practices after its renewal application
had been designated for hearing.In three cases decided between 1960 and 1963
this principle was reaffirmed. In each of these cases the Commission refused to
admit into renewal hearings evidence of improved performance after the
application for renewal was filed. n28
n28 KWK Radio, Inc., 34 FCC 1039
(1963); Palmetto Broadcasting Co., 33 FCC 250 (1962). In KORD, Inc., 21 P.
& F. Radio Reg. 781 (1963), the Commission stated that its decision should
be read as putting broadcasters on notice that they would be held to their
representations and not be permitted to upgrade their commercial practices
after designation for renewal hearing.The same considerations should apply to
prevent their upgrading serious and repeated violation of the fairness doctrine.
Of course, administrative precedent can be ignored when its teachings appear
inconvenient. When the court of appeals put WLBT's license in jeopardy it
challenged practices which serve to shelter broadcast licensees from meaningful
public supervision. These earlier precedents have, as a result, been ignored in
this case; post application evidence has been admitted and relied upon.n29 Concurrently, as if to give some air of legitimacy
to its decision to rely on post application performance, the Commission
silently undermined these earlier precedents in a 1966 decision, Melody Music,
Inc.n30
n29 Majority Opinion at par. 21.
n30 2 FCC 2d 958 (1966).
But neither Melody Music nor the rhetoric in the majority opinion released
today should obscure the fact that a clear line of Commission precedents have
been thrust aside to protect the license of WLBT.
The precedents which the Commission forgets, and the court's instructions which
it ignores, are, moreover, based on solid and sensible considerations of
policy. The purposes of the Communications Act cannot be enforced in any
meaningful sense unless broadcast licensees expect to be called to account at
renewal time.If they know that, once their application has been set for
hearing, they will be able to save their license by a show of improvement and a
profusion of promises to sin no more, the statute will be a meaningless piece
of paper.
This principle is well understood at the Commission. Indeed, no[*447] better
exposition of its purposes exists than the response of counsel for the
Broadcast Bureau to a question put by Commissioner Cox:
Mr. Cox.What is your position as
to evidence as to the performance of the station since 1964?
Mr. KEHOE.We have taken a
consistent position in prior cases, Mr. Commissioner, after the spotlight of
inquiry, the spotlight of designation, or in this instance the spotlight of the
petition to deny, that evidence of programming post that has very little
weight, very little decisional significance, because each licensee will improve
when he knows the Commission is investigating * * *.n31
n31 Record, p. 1776.Mr. Kehoe did,
however, advert to the Melody Music case, "which," he said,
"indicates that the [evidence] post designation has a great deal of
relevance."
Whether
the majority properly used the Melody Music case as an occasion to break
Commission precedent, and thereby enfeeble the Communications Act, may be
considered by some to be a difficult question.But there can be no room for
doubt whatsoever as to the invalidity of today's decision flouting the plain
language of the court in this very case and excusing this licensee from the
embarrassing necessity to "run on his record."
B.
Allocation of the burden of proof: How the Commission contradicted the express
language of the court of appeals in order to impose on the church an impossible
burden of proof
Deciding which of the parties to a case has the "burden of proof" is
one of those tricky little points of procedure which lawyers understand to be
absolutely vital to the outcome of some cases.In this case the majority devises
a rule which makes it virtually impossible for these petitioners to succeed in
their challenge to WLBT, or for any other member of the public who might seek
to enforce the statutory obligations of broadcast licensees in some future
renewal proceeding. The Commission places on the petitioners the full burden of
proof on the two most important issues, and acts as if it had the burden on the
third substantive issue as well. One would think this rather backward, that it
should be the broadcaster seeking renewal who must demonstrate his service of
"the public interest," not the public which must prove such a
presumption false. Since the broadcast station, not the listener, is necessarily
in control of virtually all relevant information about its past programming
practices, such as logs, tapes and scripts, the broadcaster is safe from any
challenge. For all he has to do is sit back and deny allegations, not having
any obligation to reach into his records for evidence to refute a plausible
charge by a member of his viewing public.n32
n32 It is true that many of WLBT's
logs, tapes, and scripts were made available to petitioners in connection with
the hearing, though this may have come too late to be of real use to them. However,
we believe that petitioners sustained their burden of going forward with the
evidence by showings that WLBT had, in specified respects, failed to meet its
fairness obligations and had failed to serve its Negro viewers adequately, and
that the record also contains evidence clearly indicating misrepresentations by
the station to the Commission and the public.It therefore became incumbent upon
WLBT, from its records or through other evidence, to rebut or explain or offset
these showings in the discharge of its burden of proof on these three issues --
and on the ultimate issue of whether the public interest will be served by
renewal of its license. This it did not do.
The majority claims in note 8 of its opinion that the question as to who had
the burden of proof in this proceeding is now "mooted," by virtue of
the fact (if it can be termed a "fact") that they purport to have
based their decision on a "preponderance" of the evidence. Since the
majority undertook little or no independent review of the record, but based its
decision on the examiner's findings and conclusions, it is unclear what its
claim means in any event. The examiner consistently and without exception
analyzed the evidence in terms which reflect his assumption (an assumption
which he several times made explicit) that the burden was on the petitioners. He
consistently noted that the petitioners failed to "prove" this
allegation or that contention; he did not find that the applicants had amassed
a preponderance of the evidence to support their position. The majority adopted
the examiner's terminology; there is nothing in their opinion to suggest that
their assumptions as to the distribution of the burden of persuasion differed
from the examiner's. If WLBT did in fact have the burden of persuasion in this
case, as the court of appeals held that it does, the questions before us would
be: Did the station affirmatively establish that it has complied with the
fairness doctrine? Did it establish that it has provided service to the Negro
community in its coverage area?Did it establish that it has not misrepresented
its policies to the public and the Commission?
Neither the examiner nor the Commission
majority demanded of WLBT that it answer those questions satisfactorily. Certainly
a preponderance of the evidence on this record would not support the assertion
that the station had satisfactorily answered any or all of those questions.
See the opinion of Commissioner Cox, dissenting to the Commission's refusal of
reconsideration to its designation order, 5 FCC 2d 37, 43-45, especially his
query:
How can the man who is denied
access to WLBT know more about his unsuccessful effort to present his viewpoint
than the representative of the station who denied him time to discuss the
issue? Certainly, the broadcaster keeps records primarily of the programming he
presents, but if those records show that he has consistently presented only one
side of a major issue, then they provide documentary evidence of his violation
of Commission policy -- whether this be termed omission or commission. Petitioners
can testify that they heard the segregationist point of view broadcast, that
they requested opportunity to answer, that they were denied, and that they
never heard their point of view presented; but they can't demonstrate
conclusively that, at some time when they were not monitoring the station,
their view was not broadcast. The licensee, with its records, can do this. Since
it is the one seeking to meet the statutory burden of demonstrating that the
public interest will be served by renewal of its license, since the issue
raised goes to the essential integrity of its broadcast operation, and since it
is in at least as good a position as its critics to know the facts, it seems to
me not only proper but essential that -- once it has been apprised of the
specifics of petitioners' complaints it should have the burden of proof as to
the issues raised, 5 FCC 2d at 43-44.
The very nature of a public challenge to a
broadcaster's performance is such as to require some reevaluation of concepts
of "burden of proof." The broadcaster's product -- unlike that of the
print media -- is ephemeral. Is a broadcaster doing his job? The answer is, to
borrow from a currently popular song, "Blowin' in the Wind." To
bottle a broadcaster's 3-year performance is as difficult as preserving a
ballet. As President Johnson said, in addressing the National Association of
Broadcasters in Chicago on Apr. 1, 1968:
Your commentary carries an added element
of uncertainty. Unlike the printed media, television writes on the wind. There
is no accumulated record which the historian can examine later with a 20-20
vision of hindsight, asking these questions: "How fair was he tonight? How
impartial was he today? How honest was he all along?"
Well, I hope the National Association of
Broadcasters * * * will point the way to all of us in developing this kind of a
report because history is going to be asking very hard questions about our
times and the period through which we are passing.
This
very fundamental and unique quality of the broadcaster's product simply cannot
be ignored by the Commission in devising the procedures and standards for
public contest of license renewal. It cannot treat the burden of going forward
with evidence about radio and television programs as comparable to
authenticating a legal document, or proving the facts surrounding an auto
accident.
And throughout proceedings such as these one must bear in mind the very high
calling and responsibility that is the licensee's. We have recently expressed
concern about the adequacy of local programming performance by some Oklahoma broadcasters. Broadcasting in America and the FCC's License Renewal Process: An
Oklahoma Case Study, a statement by Commissioners Kenneth A. Cox and
Nicholas Johnson on the occasion of the FCC's renewal of the licenses of Oklahoma broadcasters for a 3-year term
beginning June 1, 1968. It was of sufficient concern to
cause us to urge that license renewals be withheld pending further inquiry. The
point is that service of "the public interest" imposes a higher
responsibility than simply the avoidance of complaints, the absence of fairness
violations, the refusal to antagonize one's audience, the providing of
unblemished mediocrity. It imposes the responsibility affirmatively to seek to
serve one's community, to strive for excellence, to make an extra effort. A
successful public challenge of a license renewal need not, in our judgment,
require the demonstration of violations of law or Commission regulations. We do
not believe the FCC majority is warranted in blithely rewarding mediocrity with
an FCC "public interest" imprimatur. We believe it did that, in some
instances, with the Oklahoma renewals, as we explained in
the Oklahoma report cited supra. We believe the license renewal of WLBT
has been altogether too involved with the minutiae of the petitioners'
complaints against the station, and that attention has been thereby diverted
from the evidence (if any) of the station's response to its higher calling to
affirmatively and creatively serve the needs of Jackson. That the majority
would, nonetheless, actually reach the result it has in the face of these
complaints is the more regrettable.
This is an unfair burden for the Commission to impose on members of the public
who are sufficiently concerned about a licensee's performance to take the time,
trouble, and expense to engage in litigation before this agency.But, far worse,
it is at odds with the Commission's own precedents; and, as in the case of the
problem of defining the importance of the post application period, the
Commission's action on the question of burden of proof flatly contradicts the
express language of the court of appeals in this very case itself.
The question of the burden of proof in this case was the subject of an earlier,
interlocutory appeal by the petitioners.n33
After the court of appeals remanded the case the Commission majority held that
the burden of proof fell on the church and the other intervenors as to the
questions of whether WLBT had abided by the fairness doctrine[*448]and whether
it had afforded Negroes access to its facilities.Commissioner Cox dissented to
this ruling.He pointed out that it flouted very recent FCC decisions directly
on point, and that it made a mockery of the notion of public participation in
the renewal process, since it put barriers in the way of public intervention
which were altogether unfair and insuperable. n34
n33 The court's decision of this
appeal is reported only at 8 P & F. Radio Reg. 2d 2081 (D.C. Cir. 1966).
n34 See note 32, supra.
The petitioners appealed the ruling. The court upheld the Commission's
designation order, but only because it "understood" that the
Commission majority meant by its resolution of the burden of proof question
precisely what Commissioner Cox meant by the resolution he offered in his
dissent. The court, in other words, invoked a familiar technique; it made
possible its adoption of an erroneous decision of a subordinate agency by
changing the meaning of the decision. The court's precise language makes this
interpretation of its order unavoidable:
In our view it should not be necessary * * * for this court to supervise the
details of conduct of hearings before the Commission by the device of periodic
revision of the language used in opinions. Only the most extraordinary
circumstances would warrant our intervention by this means; such circumstances
do not exist here inasmuch as * * * we assume that * * * the Commission's
reference to "the burden of proof" in respect to issues (a), (b), and
(c) [fairness, access, misrepresentation] is intended to mean only the burden
of going forward with evidence in the first instance.[Emphasis added.] n35
n35 Office of Communication of
United Church of Christ v. F.C.C., 8 P. & F. Radio Reg. 2d 2081 (D.C. Cir.
1966).
Unmistakable
as the meaning of this plain and simple memorandum may appear to be, even to
the untutored eye, the Commission and the hearing examiner seemingly ignored it
altogether.
When the case came back to the Commission it proceeded to hearing without any
intervening comment from the Commissioners themselves. The hearing examiner
considered the Commission's original imposition of the full burden of proof on
the petitioners to be altogether unaffected by the court's memorandum on
appeal. This he made clear in his initial decision and in several exchanges
with counsel during the course of the hearing.Among the most revealing is the
following dialogue between counsel for petitioners and Hearing Examiner Kyle:
Mr. MOORE.* * *.
I just want to state for the
record that as I understand the burden of proof, the burden of proof on all
issues is on the station and the only burden on the applicant [the church] and
the Bureau is the burden of going forward.
That is my understanding of the
interpretation which has been placed on the Commission's order by the court of
appeals.
PRESIDING EXAMINER. No, that is
not my interpretation. My interpretation is, by the Commission action, that the
burden of proof is primarily upon the intervenors [the church] on issues A and
B [fairness and access], * * * and you can't by waving the magic wand shift the
burden of proof to this applicant [the station] or to the Bureau.
If you will look at that last
order of what the Commission said, I think it's very, very clear, and I have
certainly gone under that impression, and if I am wrong, I am wrong on that
one, because I had extra copies of the issues made up if anyone wanted to see
them.n36
n36 Record, 304-305.
The
examiner's frank equation of the force of a judicial ruling with the force of a
"magic wand" is, to say the least, disarming.
And the examiner did not merely state that he considered the burden on the
petitioners. He applied it to them with a vengeance, as [*449] perusal of his
initial decision and the hearing record will readily demonstrate.n37 This defiance of the court had a profound impact on
the conduct and outcome of the hearing. Consider the examiner's refusal to
allow Rev. R. Edwin King to testify about his conversation with an employee of
WLBT because the WLBT individual refused to identify himself upon request. Rev.
King had called the station immediately after the 1963 NBC special, "The
American Revolution '63." The show had been interrupted by a WLBT
"Sorry, cable trouble" sign at the exact point in the program where
the Jackson, Miss., Woolworth sit-in was to appear. According
to Rev. King, he telephoned the station and asked to speak with "the
manager" (who was at that time White Citizens' Council member Fred Beard).
A voice answered Rev. King, refused to be identified, and told him that the
station had purposefully substituted the cable-trouble sign for the 40-second
Woolworth segment. The examiner ordered this testimony stricken because,
"You can't quote some undisclosed person." n38 The reason the person taking WLBT's phone calls was
undisclosed was because he refused to identify himself, not because the witness
failed to remember. Needless to say, the examiner offered no suggestion as to
how the church might go about meeting this kind of "burden."
n37 Initial Decision, preliminary statement,
pars. 3-4, conclusions, pars. 1-4, 26-29, 33.An illuminating instance of the
examiner's vigor in casting the burden on the petitioners occurred during the
petitioners' examination of Mr. William Hodding Carter III, editor of the Delta
Democrat Times in Greenville, Miss. Asked to recount an instance known to
him where the program "Comment" dealt with racial matters, Mr.
Carter's testimony was stricken from the record by the examiner, who stated,
"I think he had better specify the broadcast, the hour, and who was making
the broadcast. If he remembers having seen it, he certainly ought to remember
who was a giving it." Record, 697, 279-280, 299-305, 699.
As an example of the examiner's apparent
solicitude toward representatives of WLBT-as contrasted to his stern demands on
petitioners' witnesses -- compare his treatment of WLBT witness Dick
Sanders.Mr. Sanders testified that he was unable to remember the broadcast date
of a "Comment" delivered by him sometime in June 1962.The examiner
gratuitously interposed:
My position is that I am disturbed about asking the witness
this type of questions [sic] when he is here from up in Bethesda and has
not had access to these records for some and asking him when he made certain
broadcasts and certain statements.
I share the views of the witness that I can't remember what
happened almost and to ask a witness to testify for 1962 or 1964 when he has
made a broadcast when a man has made as many broadcasts as this man has is
almost impossible and we will be here an awfully long time.Record, 1080-1081.
n38 Record, 721.
By contrast, on another occasion, the examiner quotes copiously from the
testimony of WLBT witness Fred Beard (station manager from 1953 to 1965) in
order to support an apparent finding that a program called "The Citizens'
Council Forum," carried frequently by WLBT for about 5 years, was not
designed to promote segregationist views.n39
No tapes, scripts, or transcripts of these programs were produced at the
hearing. In effect, the examiner "believed" Beard 's testimony in
preference to the contrary testimony of church witnesses (and in preference to
general knowledge and the declared objectives of the White Citizens' Council
movement in the Deep South).n40
n39 Initial Decision, findings of
fact, pars. 34-35.
n40 Id. at par. 35.
If the examiner had followed the court's direction he could not make these
rulings or reach these findings of fact. The church plainly satisfied the
burden of going forward with evidence to support its allegations. Under the
court's decision, it then became the obligation of WLBT to produce the evidence
necessary to confirm or deny the charges. This it did not do. And but for the
Commission's extraordinary readiness to ignore the ground rules under which the
court had instructed it to operate WLBT could not possibly succeed on these
particular questions, or on the case as a whole.
In affirming the examiner the Commission ignores the church's request that it
read the court's instructions on allocation of the burden of proof. The
majority opinion states simply, as if the court had never spoken to the
contrary, "The burden of proof with respect to issues (a) and (b)
[fairness and access] was placed upon the intervenors [by the Commission's
earlier decision designating the matter for hearing] * * *." n41
n41 Majority Opinion, at par. 3.
Having placed the burden on the petitioners to substantiate their allegations,
the examiner found against them on each, and hence found that license renewal
will serve the public interest. The examiner concluded that the intervenors had
"woefully failed" to support their[*450]charges.n42 The Commission is a bit more
cautious than the examiner in attacking the petitioners ' credibility. But its
reliance on its earlier decision to impose the burden of proof on the
intervenors is no less pronounced:
n42 Initial Decision, conclusions,
par. 32.
While we cannot conclude that the licensee's
history * * * has been exemplary, we must agree with the examiner's conclusion
that the intervenors have failed to prove the many serious incidents which they
alleged * * *.The preponderance of the evidence firmly establishes that station
WLBT has been and continues to be satisfactorily complying with our 1960
programming statement * * *.[There] is no evidence in the record which would
indicate that WLBT has misrepresented either to the public or to us its
programming on the issue of racial discrimination * * *.n43
n43 Majority Opinion at pars. 14,
22, 23.
So
much for the procedural handicaps thrown in the way of the petitioners. What of
the merits of their case?
III.The Merits of the
Case
Having shifted the full burden of proof to the petitioners, and having allowed
themselves freedom to consider evidence of programming improvements made since
1964, the Commission and the hearing examiner addressed the merits of the case.
The three substantive issues to be resolved were:
(a) Whether station WLBT has
afforded reasonable opportunity for the discussion of conflicting views on
issues of public importance:
(b) Whether station WLBT has
afforded reasonable opportunity for the use of its broadcasting facilities by
the significant groups comprising the community of its service area;
(c) Whether station WLBT has acted
in good faith with respect to the presentation of programs dealing with the
issue of racial discrimination, and, particularly, whether it has
misrepresented to the public or the Commission with respect to the presentation
of such programming.n44
n44 3 FCC 2d 784, 786, 787.
In
attacking each of these three issues, the Commission majority employs a
different combination of three question of WLBT's adherence to the fairness
doctrine, the majority techniques. On issue (a), the mainly relies on its
device of throwing an impossible burden of proof on the church. On issue (b),
the question of WLBT's willingness to provide Negroes with access to its
facilities, the Commission cannot deny the incontrovertible fact that Negroes
virtually never appeared on WLBT during the 1961-64 period; hence the majority
terms the station's pre-application performance subpar but not disqualifying, then
saves the station by pointing to alleged improvements since the application was
filed.On issue (c), the question of whether WLBT lied to the Commission about
its policies, the Commission simply shuts its eyes to the facts and asserts
that misrepresentations which did in fact occur did not occur.
A. WLBT
and the fairness doctrine: How the Commission manipulated the burden of proof
and ignored facts found in the record and in previous Commission decisions to
exonerate WLBT from the [*451] charge that it systematically denied reasonable
opportunity for expression of pro-integration views supported by Jackson's
Negro community.
The Commission supports its determination that WLBT abided by the dictates of
the Commission's fairness doctrine in paragraphs 13-16 of its extraordinary
brief opinion. In paragraph 13 the majority mentions three incidents, each of
which the examiner found not to constitute fairness violations. Without
describing the examiner's reasoning, or mentioning the contrary arguments
proffered by the petitioners, the majority simply asserts its support for the
examiner's conclusions. The Commission then marches on to point to two
"prime [examples]" of the petitioners' failure to prove (meet their
burden of proof on) the "many serious incidents which they
alleged." n45
n45 Majority Opinion at pars. 14
and 15.
The first of these is the 1957 forum program on "The Little Rock
Crisis" presented by WLBT. On this program three Mississippi public officials appeared to
present their views of the crisis. The three officials were Gov. James P.
Coleman, Senator James O. Eastland, and Congressman John Bell Williams. The
testimony of church witnesses alleged that the officials uniformly backed
segregation and blamed the outbreak of violence on the Little Rock Negroes who
attempted to integrate Little Rock's Central High School.n46 This testimony was not contradicted.
n46 See, e.g., Record, 677-679.
Here is what the Commission says to get WLBT off the hook as far as the program
is concerned:
While we believe that the requirements of the fairness doctrine would have
applied to the program had it been a partisan one, despite WLBT's contention
that it was only a report to the people by elected public officials, the record
is devoid of any evidence as to the content of the program, other than the
unsubstantiated allegation that it discussed the maintenance of segregation.
Accordingly, the record does not support the intervenors' contention that WLBT
was chargeable with a violation of the fairness doctrine in its presentation of
that program.[Emphasis added.] n47
n47 Majority Opinion at par. 14.
The
Commission's reasoning here is mysterious. Does the Commission mean that
programs carrying the views of "elected public officials" are not
"partisan," whatever that means? Do public officials not hold
partisan views? And whether they do or not, are programs on which they appear
presumptively not subject to the fairness doctrine? When did this word
"partisan" become some sort of talisman which determines when the
fairness doctrine is applicable to programs devoted to the expression of views
on controversial issues of public importance?
In any event, whatever one is to make of this new category of
"partisan" programs, the Commission's assertion that the record does
not support the petitioners' contentions simply will not wash. It is
contradicted by the Commission's own description of the state of the record on
this point. The majority says that
nothing other than "unsubstantiated allegation" supports this conclusion.
But lawyers would describe what they term "unsubstantiated
allegation" as "uncontradicted testimony. " Testimony is
evidence. In this record there is no evidence contradicting the petitioners'
statements that three officials discussed favorably the maintenance of
segregation. On this record, [*452] therefore, the contention stands -- even if
one believe the petitioners have the burden of proof, as the Commission holds
in violation of the court of appeals' instructions. What the Commission must
mean, therefore, is that the intervenors not only have to produce a
preponderance of evidence on their side of the case, but also have to produce
tapes or scripts to prove that uncontradicted and utterly plausible statements
are accurate.n48
n48 As Dr. Beittel responded to counsel for
WLBT, when asked about the specific appearances of station newscaster Alon Bee,
"I don't have the log. You do. " Record, 491. Nevertheless,
petitioners did go to considerable lengths to document their allegations. Perhaps
the most striking example is the monitoring study conducted under the supervision
of Dr. Everett C. Parker, an experienced communications
researcher. Record, 103-113. The examiner rejected the monitoring study's
validity partly on the ground that programs not contained in the survey
analysis had been "arbitrarily" excluded. Initial Decision, findings
of fact, par. 31. But the study was not
"arbitrary," unless by that the examiner interprets a de-emphasis on
network programming in preference to locally broadcast programs "arbitrary.
" Record, 138. Indeed, as petitioners' exhibit No. 4 shows, the information cataloged in the
monitoring study is far more comprehensive than the mere listing of program
titles contained in station logs. Lamar exhibit No. 50. In the ordinary course of events, the
station seeking renewal is in full command of all hard evidence about program
content. If it selectively loses scripts, the public has no way to prove
categorically that certain statements were made, absent a tape recording
fortuitously made at the time. For an example of selective scripts lost by
WLBT, see its inability to find the "Comment" program delivered by Mr.
Sanders, although the answering
"Comment" program of Mr. Charles Evers was produced. Record, 1495.
This is all, of course, rank foolishness. In 1959, the Commission thrust aside
an NAACP complaint about WLBT's failure to afford an opportunity to present
views opposed to those expressed on this particular program (filed,
incidentally, in 1957, 2 years before the Commission mustered a reply).Then the
ground of the Commission's demurrer was the legalistic ploy that the complaint
appeared to be a request for equal time, in accordance with section 315, and
that section 315 was not applicable to the program because the officials were
not candidates for office.n49 Now the Commission concedes that the broader
fairness doctrine might be the appropriate legal standard to apply to the
incident. This time the excuse for exonerating the station from a violation of
its obligations is that the program was not "partisan." n49
n49 Letter addressed to Mr. Medgar
W. Evers from Miss Mary Jane Morris, by direction of the Commission, Nov.
19, 1957,
p. 1.
The "partisan" smokescreen is no less transparent than the section
315 dodge which the Commission invoked in 1959 to avoid enforcing the fairness
doctrine. Indeed, the Commission has already characterized this incident as a
fairness violation in the 1965-1-year renewal, and the matter should not
require reexamination at this time. n50
Unless one accepts the validity of the novel "partisan" concept, and
its applicability on this record, WLBT flouted the most elemental principles of
broadcast fairness when it refused to grant an opportunity for the expression
of anti-segregation views in the wake of its 1957 forum on Little Rock.
n50 Lamar Life Broadcasting Co.,
38 FCC 1143, 1146 (1965).
The second of the Commission's two "prime examples" of failure by the
petitioners to prove their fairness contentions raises serious questions about
the Commission's manipulation of the burden of proof. This example involves
WLBT's carriage of a series of Freedom Bookstore announcements during much of
the renewal period. n51 "While they assert that the
organization is an anti-civil rights, prosegregation group," intones the
majority, "there is no probative evidence to this effect." [Emphasis
added.] n52 Once again, the majority holds that
testimony, even if uncontradicted, needs some measure of confirmation before it
can be accepted as "probative."
n51 Majority Opinion at par. 15.
n52 Ibid.
It is true that evidence as to the nature of the Freedom Bookstore is not in
abundance in the record, as the majority says. But there is a reason for that.
The reason is that the examiner emphatically, continually, and without
exception rejected the numerous efforts by witnesses for the church to get such
evidence into the record.n53 The majority says, in approving the
examiner's rejection of exhibit 18 (a letter dealing with the bookstore from
church witness Dr. Beittel), that "such evidence, were it within Dr.
Beittel's personal knowledge, should have been offered through him and not
through a letter."
n54 But such evidence
was offered by Dr. Beittel at the hearing. The examiner rejected his attempt to
testify about the bookstore. n55
Other church witnesses offered [*453] to testify about the bookstore. They,
too, without exception, were denied permission by the examiner. n56 As the examiner told petitioners' counsel, "I
don't see any issue that has anything to do with what any bookstore sells in
Jackson, Miss. I think you are limited to issues A and B." n57 If that statement was not enough to make the
examiner's position clear, he made it clear beyond cavil at a later point
during the hearing when he put a rhetorical question to counsel for WLBT:
n53 See e.g., Record, 986-987.
n54 Majority Opinion at par. 15.
n55 Counsel for petitioner first
attempted to introduce a letter written June 29, 1963, by Dr. Beittel to FCC Chairman E.
William Henry. Among the complaints listed by Dr. Beittel in his letter was the
charge that Freedom Bookstore propagated the philosophy of the White Citizens'
Council and that station manager Fred Beard operated the bookstore on WLBT's
premises. Record, 435.The Examiner excluded the exhibit because, in his words:
Mr. Beard is going to be here as a
witness and, second, the matters that Mr. Moore [counsel for petitioners] seeks
to put in evidence can be brought in if he so desires by competent testimony *
* * but a generalization like this embodies too much hearsay and the document
will not be received. Ibid. As counsel for WLBT noted, the examiner had
previously declared all testimony about the bookstore irrelevant. Record,
251.However, counsel for petitioners nevertheless attempted to qualify Dr.
Beittel to the examiner's satisfaction so that he might orally testify about
the Freedom Bookstore and its association with the White Citizens' Council --
of which Fred Beard is a past director. Initial Decision, findings of fact,
par. 34.But at the threshold of every attempt, the examiner ruled out such
fundamental questioning as whether Dr. Beittel was knowledgeable about the
Citizens' Council. Record, 447-458.
n56 In excluding testimony of Rev.
Robert L. T. Smith respecting the Freedom Bookstore, the examiner stated,
"I don't see any issue that has anything to do with what any bookstore
sells in Jackson, Miss." Record, 250.See also Record, 987.
n57 Record, 251.
PRESIDING EXAMINER.Didn't I rule
out any evidence concerning the Freedom Bookstore from the beginning?
Mr. MILLER.Yes, Mr. Examiner.
PRESIDING EXAMINER.Then I don't
want to hear anything about it.n58
n58 Record, 1402.
Even
Kafka would blanche at this vignette of bureaucratic justice. The citizen
charges a Commission licensee with unfairness and offers to explain his
allegation. First, the Commission rejects the citizens' offered proof, terming
the charge itself irrelevant to the proceeding. Then the Commission concedes
the relevance of the charge, but throws the citizen out again -- this time
because the record of the proceeding contains no evidence to support it!
In this way the Commission concludes that WLBT's compliance with the fairness
doctrine was not so defective as to warrant denial of its renewal application.
"Our study of the record indicates," the majority concludes,
"that only in one instance has WLBT been proven to have violated the
requirements of the fairness doctrine." n59 This one instance was the station's carriage of repeated
spot announcements by the Jackson White Citizens' Council between September 3
and September 30, 1962 -- the period when the State of Mississippi was near
rebellion over the pending admission of James Meredith to the University of
Mississippi, "Ole Miss." These announcements blared to Jackson's
citizenry that Communists were behind the civil rights movement and the effort
to integrate the State's public facilities.n60
One misstep is not enough, the Commission says: "an isolated failure,
occasioned by an honest mistake or a good faith error in judgment * * * should
not result in action adverse to a station's license." n61
n59 Majority Opinion at par. 16.
n60 Petitioners' exhibit No. 50
(rejected, Record, 1615-1616).
n61 Majority Opinion at par. 16.
To term this unanswered saturation campaign or anti-civil rights material an
"honest mistake or a good faith error in judgment" is remarkable
enough. But altogether incredible is the assertion that the citizens' council
spot campaign is the only fairness violation in the record. In the first place,
the Commission itself has in previous actions and phases of this proceeding
held that several incidents on which evidence was taken were serious violations
of the licensee's obligation to air all sides of controversial issues. Indeed,
the Commission in its original decision in this case, which was reversed by the
court of appeals on the question of standing, accepted and acted on the
petitioners' fairness accusations against WLBT. In that decision the Commission
majority noted at least five separate instances of violation of the fairness
doctrine by the station:
In paragraph 9, the Commission noted four items, first and most egregious of
which was the 1962 series of editorials opposing admission of James Meredith at
Ole Miss.
The second was a 1962-63 series of "Comment" programs, "which,
from an examination of the scripts submitted by the licensee, [*454] discussed
the issue of racial integration on various occasions."
The third was the citizens' council spot campaign which the majority now cites
as the sole violation on the licensee's record.
The fourth was the personal attack leveled at Tougaloo College on an interview show, in which the
college "closely identified with the civil rights movement in Mississippi, was * * * accused of being
Communist infiltrated."
Finally, in paragraph 6 of its opinion, the Commission noted that in its 1959
letter to WLBT, it "held as to the 1957 incident [the Little Rock
forum program], that 'The fact that the proponents of one particular position
on such an issue are elected officials does not in any way alter the nature of
the program or remove the applicability of our fair presentation policy.'
However, the Commission, after noting the licensee's representations, pointed
out that isolated failures to comply with the fairness doctrine do not result
in denial of renewal, and accordingly renewed the licenses." n62
n62 38 FCC 1143, 1146.
As
other paragraphs of the 1965 opinion make unequivocally clear, the Commission
considered each of these incidents as serious fairness violations. It termed
the licensee's lame efforts to excuse its failures to provide integrationists
responses as "not fully satisfactory." n63 It renewed the license, as the court of appeals noted
in its subsequent decision reversing the Commission, only because of the
claimed importance of providing continued broadcast service to Jackson.n64 And this license was granted only on the basis of
WLBT's promises to adhere to fairness requirements, and, at that, was limited
to a probationary 1-year term.n65 Moreover,
the real problem with WLBT's programs was not individual instances of refusals
to respond to requests to appear, or individual spot campaigns during moments
of pronounced racial crisis in Mississippi. The problem was that the
station carried a remarkable surfeit of rightwing and segregationist material
as a general practice. The church's exhibit 49, which was rejected by the
examiner, n66 plainly indicates this fact. The
exhibit, which notes all the station's controversial issue programming during a
3-month segment in 1962 and 1963, reveals routine carriage of shows like
"Life-Line" and "The Dan Smoot Report," "Freedom
University of the Air," John Birch Society programs and "Freedom
Seminar." spot announcements for the Freedom Bookstore and the White
Citizens' Council, as well as speeches by segregationist officials of the
State.n67
n63 Ibid.
n64 359 F. 2d 994, 1007-1009.
n65 38 FCC at 1154.
n66 Record, 1613.
n67 Petitioners' exhibit No. 49
(rejected, Record, 1613), passim.
Finally, we cannot stress strongly enough, as the majority itself noted in
1965, n68 that the fairness doctrine does not
involve personal rights, and does not function primarily through the mechanism
of requests or protests by viewers. The fairness doctrine imposes on the
broadcast licensee an affirmative obligation to insure that all sides of
controversial issues are fairly presented.The licensee cannot discharge his
obligation, as WLBT claims to have done, simply by flashing an "Equal
Time" sign on the screen after the broadcast of its "Comment"
discussion show.n69 He must make sure that his overall
programming pattern fairly reflects all relevant viewpoints, whether or not
individuals demand an appearance.
n68 38 FCC 1143, 1146-1147.
n69 Record, 1050-1051, ibid. WLBT
appears to have varied its practices in this regard. On occasion, a slide would
appear on the television screen after the conclusion of a "Comment"
program or station editorial announcing that "equal time" would be
given to responsible spokesmen. On other occasions, a voice would announce that
fact.
[*455]The Commission terms the spate of citizens' council spots during the
Meredith crisis of 1962 as WLBT's only fairness offense during the period under
review. n70 This particular offense was only
one part of the station's bitter campaign against enforcement of the Fifth
Circuit Court of Appeals' order to Ole Miss to admit Mr. Meredith. And, most
important, the Meredith campaign was itself only the tip of the iceberg. The
rest of the iceberg is to be found in testimony and documents accepted into the
record of this case by the examiner -- as well as exhibits which he excluded in
a misguided effort to minimize evidence most damaging to the station's case.n71 Finally, it is to be found in prior official actions
of the FCC itself.
n70 See text at note 59, supra.
n71 See, e.g., notes 55, 60, 67,
supra. Also Record, 200-204 and 966-967.
At
this point, it seems to us appropriate to add some comments on the testimony of
Mr. Dick Sanders, the former WLBT news director upon whose work both the
examiner and counsel for the applicant placed great reliance in attempting to
portray WLBT's performance during the renewal period as consistent with its fairness
obligations. Initial Decision, par. 31; Record, 1727.The majority, it should be
noted, chose not to follow the lead of the examiner and WLBT counsel in this
respect. They do not expressly rely on the performance of Sanders on WLBT new
programs during the renewal period or on his testimony. Nevertheless, it must
be assumed that the examiner's findings with respect to the importance of
Sanders underlie the majority's general assertions endorsing the examiner's
findings about WLBT's fairness. Therefore, it should be pointed out, first,
that witnesses praising Mr. Sanders did not intend their praise for him to
apply to the station's treatment of news and political questions generally. Hazel
Brannon Smith, a distinguished witness for the station, testified, "To me,
he was the one sane voice on the air because it happened that WLBT was all I
listened to * * *.I regarded Dick Sanders as the saving grace of WLBT, I mean
if it could save it because there was so much wild stuff being said like in
editorials and things like that * * *." Record, 1248.Second, WLBT 's
reliance on Sanders as a "liberal" or "integrationist"
offset to segregationist newsmen, commentators on panel shows, and editorials
appears to have been unjustified in fact -- even if it were justified as a
matter of law, which it is not. Mr. Fred Beard said of Sanders: "He was
very liberal. He was an integrationist, he believed in integration and he was
on the liberal side of every question that came about * * *." Record, 885.
Mr. Sanders, however, does not appear to have regarded himself in the same
light. To counsel's questions as to whether or not be considered himself
"an integrationist," Mr. Sanders replied, "No." Record,
1079.Third, Sanders indicated that his position at the station was precarious:
"There were tremendous pressures * * * the pressure of your friends, at
times colleagues at the station differing with your news judgment * * *.This
was not just routine coverage. In fact I doubt if there is anything like
it." Record, 1096.Mr. Sanders discounted his influence on WLBT's general
programming policies, saying "I had nothing to do with programming as
such." Record, 1091.Finally, although we strongly disapprove of the
majority's consideration of, and reliance on, evidence of WLBT's performance
postdating the filing of its renewal application and its creation of a
criterion for renewal decisions which emphasizes "probable future
performance," we think it not amiss to point out that Mr. Sanders' presence
on the station's staff during the renewal period is no evidence of its
"probable future performance," in that he has since left the
station's employ.
WLBT pursued a systematic policy of active rebellion against the requirement of
the Communications Act that it present contrasting views on controversial
issues of public importance. Time and again over nearly a decade, WLBT was
warned by complaints from local representatives of the Negro community n72 and by Commission correspondence, reprimands, suggestions,
and other official actions, n73
that its zeal for suppressing the views of its political opponents was sharply
at odds with the law. It is unlikely that a more flagrant, deliberate, and
serious offender against the fairness doctrine will ever appear before us.
n72 See the summary of the
background of the proceeding in the Commission's original 1-year renewal
decision, 38 FCC at 1144-1146.
n73 Ibid.See also exhibits 100-110.
B. WLBT and service to the black community:
How this station excluded 47 percent of the population of its coverage area
from access to its broadcasting facilities
The second major charge against WLBT was its failure to serve the Negro
community in its coverage area.No policy of the Communications Act is more
fundamental than the Commission's requirement that broadcast stations serve the
particular needs and interests of the communities to which they are licensed.
The FCC has refined and reaffirmed this command over and over again through the
years, most recently in its "1960 Report and Statement of
Policy" n74 which vigorously reasserted and
elaborated the obligation of licensees:
n74 1960 Report and Statement of
Policy re Commission en banc Programming Inquiry, 20 P. & F. Radio Reg.
1901 (1960).
* * * to take the necessary steps to inform
themselves of the real needs and interests of the areas they serve, and to
provide programming which in fact constitutes a diligent effort, in good faith,
to provide for those needs and interests.n75
n75 20 P. & F. Radio Reg.
1901, 1913.
We
have already seen how WLBT ignored the needs and interests of Negroes as far as
controversial political issues were concerned. Not unexpectedly, its service
to, and presentation of, Negroes on its other programming also reflected the
assumption that its service was to be directed only to those people in its
coverage area who happened to be white. This assumption is rather difficult to
square with the requirements of the "1960 Policy Statement" in view
of the fact that 47 percent of the people living within the station's coverage
area are black. n76
n76 Stipulation No. 2.Within the
grade B WLBT broadcasting area, there is a total population of 859,881, of whom
407,790 -- or 47.4 percent - are Negroes.
The majority does not dispute the petitioners' description of WLBT's
presentation of programs aimed at the Jackson Negro community. It concedes that
"Negro participation per se [whatever "per se" means in this
context] in WLBT's locally originated programming was limited." n77 It was, in fact, limited to almost zero." The
record[*456]indicates," the majority recites, "that during [the
1961-64 renewal period] there were no Negro appearances on the programs 'Teen
Tempos,' Romper Room," and 'Youth Speaks,' and that religious programming
of special interest to the Negro community was limited to one program, 'Voice
of Good Will.'" n78 (The latter
was a 15-minute religious program broadcast at 6:45 a.m.) n79
n77 Majority Opinion at par.
18.[Emphasis added.]
n78 Ibid.
n79 Rev. Nathan Wheeler, a Negro,
was the individual appearing on "Voice of Good Will." Application to
renew license of Lamar Life Broadcasting Co., attachment (unnumbered), p. 141.
Rev. Wheeler was considered by petitioners to be unrepresentative of the Negro
community. Rev. Smith testified, "The Negro ministers they [WLBT] put on
there were a disgrace to the ministry." Record, 335.
The majority agrees with petitioners on the facts regarding Negro participation
in WLBT programming during the renewal period. Nevertheless, it rejects their
contention that WLBT failed to provide adequate service to Jackson Negroes and
opportunity for their use of its facilities. Lack of Negro participation in
programming, the majority explains, is not by itself "determinative."
"Other factors must enter into our consideration of the matter.
" n80 Precisely what these other factors
might be, however, is not specified in the majority's opinion.
n80 Majority Opinion at par. 19.
What the majority does do is the following. First, it discounts two aspects of
the intervenors' case against WLBT on this issue. Second, it points to alleged
improvements in WLBT's policies since its application was filed.
In attacking the petitioners' case, the majority argues that the monitoring
study prepared by the church and offered in evidence is of no value. But the
question of the validity of the monitoring study is not of overwhelming
significance to the disposition of the issue of Negro participation. As the
majority admits, the evidence of lack of Negro participation from other sources
was too overwhelming.n81 Nevertheless, the conduct and
character of monitoring studies will be of the first importance to future
attempts by citizens to implement their right to participate in Commission
proceedings, and to enforce broadcasters' obligations to serve their needs. Accordingly,
it is necessary for us to make clear the extent to which the majority's effort
to discredit this study is a sham and a dangerous precedent.
n81 Ibid.
The majority says this study is not valuable because, first of all, the church
used different program "categories" from those used by the Commission
in its application forms. In view of the utterly inconsequential nature of the
differences between the categories, this line of attack is ridiculous.n82 Moreover, the Commission has in the
past accepted studies with program categories different in respects much more
significant than is the case here. n83
n82 Program types employed in the
monitoring study were news and news commentary, entertainment, religion, public
affairs, informational, educational, and children's shows. The Commission's
renewal application form lists these types: Entertainment, religious,
agricultural, educational, news, discussion, talks. Application for renewal of
broadcast station license, FCC form 303, October 1963, sec. IV.The Commission
has since revised its forms, and the categories now are agricultural,
entertainment, news, public affairs, religious, instructional, sports, and
other. Application for renewal of broadcast station license, FCC form 303,
September 1967, sec. IV-B.
n83 See Capital Broadcasting Co.,
38 FCC 1135 (1965), in which the Commission held that a similar study would be
considered by the Commission, since the station had not demonstrated that the
week monitored was unrepresentative or that its program classifications were
insufficient.
Second, the majority criticizes the study because it only embraces a week's programming
and is not, therefore, necessarily typical of the station's programming. Would
the majority require public groups such as the church to conduct a year of
monitoring? Or perhaps even a full scale monitoring of the entire 3-year
renewal period would be required. The majority does not say. Obviously, the
expense and difficulty of conducting extensive monitoring would be altogether
prohibitive and would mean that no such efforts would be undertaken. Perhaps
this is what the majority desires, though we hope not. Moreover, such extended
monitoring is totally unnecessary. The fact is that there is no reason to
believe that the week of programming selected by the church for this study is
atypical in any material respect. And, if it had been atypical, there was ample
opportunity for WLBT to meet its burden of showing how and why.
[*457] The church's monitoring study is every bit as fair (and far more
thorough) a prima facie test of a station's programming as the "composite
week" of programming logs used by the Commission to evaluate the
performance of WLBT and all other stations when their licenses are up for
renewal.n84 Only 1 week is involved in either
case.And logs involve no monitoring whatsoever by outsiders, and generally no
report of the content of programs.Finally, as intervenors demonstrated in their
brief to the Commission, Negro participation during the monitored week was
actually greater than was the general pattern over the 1961-64 period as a
whole.n85
n84 Lamar exhibit Nos. 50 and 78.
n85 Brief of the Office of
Communication of the United Church of Christ, et al., p. 12, note 3.
After attacking the monitoring study, the majority then says that the church
failed to prove its contention that WLBT habitually flashed a phony
"Sorry, Cable Trouble" sign on the screen whenever unwanted,
prointegration items were shown on network television programs. In the first
place, this was not alleged by petitioners in their original pleading. It was,
in part, the basis for the misrepresentation issue which this Commission put
into the case as the result of its investigation into the operation of the
station.n86 On this issue the burden of proof
-- or, more properly, the burden of going forward with the evidence -- was put
upon the Broadcast Bureau. The majority asserts that intervenors' allegation --
that a 1955 appearance by then-NAACP General Counsel (and now Supreme Court
justice) Thurgood Marshall on Arlene Francis' "Home" show was cut by
WLBT and a "Sorry, Cable Trouble" sign substituted -- was "unfounded.
" n87 The majority's assertion is not
true. The allegation was not disproven. It would not even be accurate to say
that it was denied.
n86 In its May 1965 decision, the
Commission majority recalled the 1955 "cable trouble" complaint made
to the FCC by the NAACP. The Commission noted, "This background is thus
pertinent to the present application for license renewal." 38 FCC 1143,
1146 (1965).
n87 Majority Opinion at par. 20.
A newspaper reported that Fred Beard, the White Citizens' Council member who
was station manager of WLBT from 1953 to 1965, had publicly bragged of using
the cable trouble poly to keep the distinguished Negro lawyer off
the Jackson station.n88 Mr. Beard's only response was that
the paper "misquoted" him. n89
He did not say the newspaper report was fundamentally wrong. He did not specify
any way in which the report misquoted him. Counsel for the church did not press
the matter, unfortunately, so there is no way of knowing precisely what was
erroneous about the report -- assuming that Beard was telling the truth when he
said he was misquoted.(Given his well-documented penchant for making pious
misrepresentations to the Commission, a fact which will be dealt with later in
this opinion, there is ample reason to treat with at least a grain of salt WLBT
Manager Beard's guarded claim that he was "misquoted" in this case.)
But it certainly cannot be said that the allegation was disproved.
n88 Record, 812-815.
n89 Record, 815.
In fact, even the version offered by Beard is damaging enough in itself. For
Beard admits that he did cut that portion of the "Home" show which
carried Miss Francis' interview with Mr. Marshall (and not, as the Examiner
claimed in his initial decision, the entire show).n89 Beard claims that he substituted a rerun movie,
rather than a "Sorry, Cable Trouble" notice.n90 No one, however, denies that Beard was deliberately
preventing Negroes from appearing on his station. And he thus admits he took
this step in order to prevent the people of Jackson from seeing a Negro --
this man who had risen to the position of distinction and respect even then
held by Mr. Thurgood Marshall.n91 [*458] No
one on the Commission, or who testified during the hearing, has even attempted
to show that this extraordinary incident was not part of a systematic design to
prevent the appearance of Negroes on channel 3.
n89 Record, 815.
n90 Record, 810-811.
n91 Mr. Beard testified that he
purposefully deleted the interview with Thurgood Marshall, "Because I
didn't want to have to fight Bill Simmons * * * executive secretary of the
Citizen's Council." Record, 809.
Even the majority does not consider its attacks on the monitoring study and its
downplaying of the "cable trouble" episode adequate to offset the
irrefutable evidence that Negroes almost never appeared on WLBT, and that other
modes of disservice to Negroes occurred, during the renewal period.The majority
relies, rather, upon the station's improvement after it was called to account
for its derelictions.n92
n92 Majority Opinion at par. 21.
Since the application was filed and challenged by the church, the majority
seems to suggest that there have been some changes made on channel 3 in Jackson. Whereas there was once only one
Negro religious program there are now three. Whereas Negroes formerly
participated in none of the station's regularly scheduled local origination
shows, they now participate -- at least the record shows one such occasion --
in one of those programs, "Teen Tempo." ("Romper Room " has
been discontinued, thus avoiding the possibility of integrating small Negro
children into this show.) Courtesy titles are now in vogue when WLBT announcers
refer to Negroes, and WLBT announcers no longer indulge their preference for
the terms "nigger" and "negra." n93
n93 Ibid.
One may or may not be impressed by this new spirit of brotherhood in Jackson. But it has only occurred since
WLBT's Washington counsel advised its principal owners, the Murchison
brothers of Texas, that their license to operate this several
million-dollar television station was in serious jeopardy.n94 It is indefensible for the Commission to consider
such evidence to decisive significance. The Commission recognizes that a
finding that WLBT had failed to program in the public interest during the
renewal period could not be offset by later improvements or promises of reform.
It recognizes that the pre-1964 lily-white programming policies are not
"spotless or a model of perfection to be emulated by other stations."
It finds them, however, not so bad as to contravene the public interest. The
majority therefore asserts -- and the assertion is without even token support
in its opinion -- that "since the question is not one of proven past
conduct found contrary to the public interest which is sought to be weighed
against present meritorious conduct or representations that a station will
reform in the future, our decisions which hold that such evidence should not be
considered are inapposite to the present situation.n95
n94 The extent of the Murchisons'
ownership is reflected in petitioners' exhibit No. 52.
n95 Majority Opinion at par. 21.
That sentence is quite a mouthful. Evidently the majority's hope is that the
reader will become so preoccupied with the sheer physical chore of chewing over
the words that he will not choke on their illogic. Even if one accepts the
station's witnesses' version of the facts it is simply undeniable that bigotry
was a watchword at WLBT between 1961 and 1964, and, it is difficult to doubt,
prior to 1961.Whether it is now still the case is, to say the least, unclear
from the record. That WLBT's recent show of contrition should not be allowed to
counter WLBT's prior open and unmitigated scorn and indifference to the half of
its viewers who happen to be black seems to us beyond argument.
[*459]
C.WLBT's
misrepresentations: How the Commission ignores its own charges that WLBT has
substantially misrepresented to the Commission and the public its programming
policies and practices, and has deliberately distorted news events
It is now well settled that material misrepresentations made to the Commission
by an applicant for renewal are in themselves grounds for denial, irrespective
of the programming fare offered or promised by the applicant. But in this case
the majority chooses merely to shrug off the issues of misrepresentation --
which the Commission itself raised n96 -- with a two-sentence conclusory
finding that "there is no evidence in the record which would indicate that
WLBT has misrepresented either to the public or to us its programming on the
issue of racial discrimination or that it has acted in bad faith respecting the
presentation of such programming." n97
n96 See note 86, supra, and
accompanying text.
n97 Majority Opinion at par. 23.
Such short shrift, when measured against the record we have read, makes us
wonder if the majority is discussing the same case we are. The majority's
summary treatment of the misrepresentation issue flatly states that there is
"no evidence" indicating WLBT has purposefully lied.n98 But as the majority must be aware, past Commission
action, and even the stipulations agreed upon by the parties prior to the
present hearing, demonstrate conclusively that WLBT's veracity has been under
constant scrutiny by the Commission staff since 1955, only 2 years after WLBT
took to the air.
n98 Ibid.
In 1955, in response to a complaint filed with the Commission by the NAACP,
WLBT asserted that it did not, as a matter of policy, permit the issue of
racial integration to be aired at all. This representation was repeated in 1958
and 1963.But in September 1957, WLBT presented a locally produced program on
the Little Rock crisis in which three Mississippi officials, Gov. James P. Coleman,
Senator James Eastland, and Congressman John Bell Williams, discussed the
maintenance of segregation and States rights. Mr. Medgar Evers requested, and
was denied, an opportunity to appear on the station to reply. Responding to a
complaint filed with the Commission by Mr. Evers, the station opined that the
program did not come within the station policy because it was a
"report" by elected officials to the people of Mississippi.n100
n100 Ibid.
In January 1962, Rev. Robert L. T. Smith filed a complaint with the Commission
alleging that WLBT had refused to sell him air time to promote his
congressional campaign.Fred L. Beard, station manager, responded to a staff
inquiry on February 1, 1962, by asserting, "WLBT has not refused to sell
the candidate time." n101 Two months
later, on April 20, 1962, WLBT reversed field and admitted, "Our decision
not to sell time to Reverend Smith was primarily based on the fact that there
is no interest in this race being manifested in the district * * *." n102
n101 Stipulation 1, No. 4.
n102 Stipulation 1, No. 11.
On November 21, 1962, Fred L. Beard stated in a memorandum summarizing
information given to two staff members of the Commission: "* * * we
temporarily discontinued broadcasting editorials on last September 21, 1962 * *
*." n103 But station logs [*460] immediately
subsequent to September 21, 1962, indicate that editorials were, in fact,
broadcast.n104 Oral testimony admitted at the
hearing indicates only that Beard believes the logs were
"mistaken." n105
n103 Stipulation 1, No. 13.
n104 Petitioners' exhibit No. 35.
n105 Record, 845-46.
On July 25, 1963, the Commission addressed a letter to WLBT stating that from a
recent investigation "it appears WLBT broadcast editorials on the
controversial issue of racial integration," spot announcements for the
White Citizens' Council contending that Communists were behind the integration
movement in Mississippi, and several "Comment" programs taking
only one side of the integration issue. n106 However, on October 29, 1963, WLBT erroneously wrote the FCC
that "our policy not to present local programs dealing with segregation
has continued in effect to the present time." n107
n106 Stipulation 1, No. 16.
n107 Stipulation 1, No. 17, p. 4.
In WLBT's 1964 application for renewal, the station avowed that its policy
regarding the airing of controversial views was to make "every reasonable
effort to ascertain that the opposing group is notified and understands that if
they do disagree, equal time will be granted * * *." n108 But at such a late date as the examiner's hearing,
counsel for WLBT demurred at the thought that any station should be held to
such a promise.n109
n108 Application to renew license
of Lamar Broadcasting Co., attachment (unnumbered), "Policy
Statement," p. 1.
n109 "* * * [Obviously] * * *
it would be an impossibility for a station to advise and invite members of the
public individually.They don't even know which one specifically may agree or
disagree with them." Record, 375.
A further instance of WLBT's willingness to mislead the Commission – even with
regard to the ownership of the station -- was considered in a recent case
decided only 3 years ago.n110 In that action, the stockholders of
Lamar Life Broadcasting Co. sought to transfer their stock back to Lamar Life
Insurance Co., from whom they had received their majority interest in 1952 in
exchange for an option to buy for $10,000 -- the value of the shares in 1952.As
Commissioner Cox pointed out in dissent at the time, the 1965 approval of
transfer was merely a belated effort to make official what had long been the
known facts of ownership; namely, that Lamar Life Insurance Co. exercised de
facto control over the programming policies of WLBT.n111
n110 In re Application of P. K.
Lutken et al. for Transfer of Control to the Lamar Life Insurance Company, 1
FCC 2d 1484 (1965).
n111 Id. at 1491.
These
are multifarious examples of deceptive practices by WLBT and its clear
disposition to say whatever seems to meet the problem of the moment. The
majority must be cognizant of them. Thus, the Commission's bland statement that
there is "no evidence" in the record supporting the petitioners'
charges of misrepresentation is not only unsupportable; it suggests a
predisposition to renew the WLBT license regardless of the seriousness of its
questionable past history.
The majority also asserts that the record contains "no evidence" of
misrepresentation to the public by WLBI. n112 This is also not true. For example, the record contains substantial and
unrebutted testimony respecting specific instances of bad faith reportage by
WLBT in its news coverage of highly controversial issues. No matter should be
of greater concern to this Commission than the existence, or threat, of
untoward influences in the reportage of information and opinion to the American
citizenry by the mass media. In this case, Rev. R. Edwin King of the United
Church of Christ at Tougaloo recited not one but [*461] three specific
instances of such questionable practices. All occurred in May and June 1963.
n112 Majority Opinion at par. 23.
the
first instance was WLBT's false characterization of the way in which one Mr.
Salter, a participant in a city hall demonstration following Medgar Evers'
death, was beaten. Reverend King, an eyewitness to the demonstration, testified:
Mr. Salter had been pulled from the porch and was clubbed
down by the police * * *.Then he was lifted up from the ground by several
policemen and kind of dragged to a police car. His clothing was torn, he was
bleeding profusely. The car disappeared with him * * *. [The] television
station, channel 3, showed pictures of police rushing from the street where the
demonstrators had been put in the trucks, rushing from the trucks towards the
yard and the porch where we were standing and then the newsreel stopped, the
news forecaster was suddenly seen. He was seated * * * and the newscaster
said, with only the picture of himself at this point, "Mr. Salter stumbled
and fell from the porch, injuring himself." Then the newsreel came back on
and we saw none of the pictures of the police.n113
n113 Record, 711, 714-715
The
second instance described by Reverend King related to WLBT's announcement over
a news program that Mrs. King had been arrested for public cursing and
disorderly conduct, when, in fact, Mrs. King had not been arrested and was not
even at the scene of the demonstration.n114
Finally, Reverend King testified as to WLBT's false report that he had been
arrested for public cursing, leading the city hall demonstration, and
"Violence" in the Jackson City streets. In fact, Reverend King was
not arrested on the charges or at the time indicated by the television news
department.n115
n114 Record, 713-714.
n115 Record, 718-720.
It used to be that this Commission was sometimes charged with loose enforcement
of its own rules, but was said to have a capacity for stern action when
misrepresentation to itself or the public was concerned. "It makes no
difference what you do, just make sure you tell the Commission the truth about
it if you're caught," the saying went. Now it appears even this modest
standard has been eroded.
IV.A Final Word on the Relevance,
Materiality, and Weight To Be Accorded WLBT's Efforts To Reform Its Discriminatory
Programming Practices Since Its 1964 Renewal Application
We think the record demonstrates that, from the first stirrings of public
concern about segregation in Mississippi, WLBT pursued a systematic policy
of promoting segregationist views and suppressing integrationist expression,
that the station made no effort to serve the large Negro population in its
coverage area, that it assiduously sought to minimize the appearance of Negroes
on the air, that it refused to extend to them minimal courtesies, and that it
consistently lied to the Commission about the maintenance of these highly
improper policies. The majority did not seriously contest these conclusions in
1965, when it granted WLBT a probationary 1-year renewal and sternly warned it
to reform itself.Now the majority purports to change its mind. The reason for
this seems clear. The court of appeals has declared that if the petitioners'
allegations are in fact true, as the Commission assumed in 1965 and we believe
the record now confirms, the majority's 1-year renewal would not be an adequate
sanction." As a matter of law," the Court held, "* * * a history
of programming misconduct of the kind [*462] alleged would preclude * * * the
required finding that renewal of the license would serve the public interest.n116 The majority apparently does not want to refuse
renewal of this broadcast license even for the offenses reflected in WLBT's
history. Hence, it suddenly discovers that the history never occurred.
n116 359 F. 2d 994, 1007.
[Emphasis added.
Since the law of this case is necessarily what the court has said it is, the
majority attempts to reinterpret the facts to avoid the court's strictures. In
reality, it seems to be asking to the court to soften the law. In effect, the
majority seeks to save WLBT's license on the ground that it has made up for
past derelictions by recent improvements.
We find the evidence of improvement offered by WLBT's counsel much less than
the top-to-bottom revamping which would be necessary to show that a licensee
who had made the remarkable record of lawlessness developed in these
proceedings has truly and permanently changed his ways. Some of the offerings,
indeed, are of dubious value to the applicant's cause.
For example, a committee including Negro leaders has been formed by the station
to provide a bridge to the Negro community and a mechanism to assess its needs
and interests.n117 Petitioners challenge the adequacy
of members of this committee to represent the needs and interests of Jackson
Negroes. But, of decisive significance, they point out that the Committee has
not once, in its 3-year life, ever met!n118
n117 Lamar exhibit 64, p. 3.
n118 Record, 573.
And the station's penchant for violating the fairness doctrine has been
ameliorated, it would appear, not by exposing its viewers to Negro leaders and
integrationist spokesmen, but by reducing the appearances by rightwing and
segregationist spokesmen." Teen Tempo" has been integrated, at least
on a token basis and on one occasion." Romper Room" and "Youth
Speaks," however, are no longer broadcast.n119
n119 As reflected in station logs
for 1967, Lamar exhibit No. 50.
But whether or not WLBT has reformed, and if so whether it will stay reformed,
is, we think, quite beside the point. We believe that evidence of WLBT's
performance after the filing of the application should not be relevant at all. Certainly
it should not be decisive. For we do not see how the aims of the Communications
Act can ever be meaningfully enforced if a station with a record as egregiously
defiant of law as this one can ignore citizen complaints and Commission
blandishments at will.Such stations can now go their way, secure in the
knowledge that when the Commission is finally forced to crack down there will
be ample time to show subsequent improvements and make pious promises.
When this case was remanded to the Commission by the court of appeals, the
court remarked that "When [a broadcaster] accepts [a radio or television]
franchise, it is burdened by enforceable public obligations." n120 If a record such as WLBT compiled until 1964 does
not result in prompt loss of its license those obligations will be enforceable
only in theory. This Commission has neither the budget nor the staff to
maintain watch over the 7,500 broadcast stations in this country. The best way,
perhaps the only way, to insure that broadcasters respect the needs of their
communities and promote diversity in the expression of points of view is to
make it clear that valid public complaints, showing [*463] systematic
violations of these obligations, will result in loss of the broadcast license
without a second chance.
n120 359 F. 2d 994, 1003.
The Commission has held that the criterion of decision in this case is
"probable future performance." n121 This rule flatly contradicts the instructions of the court of appeals
to make the licensee "run on his record." n122 It is a wholly novel approach to the decision of
license renewal challenges, proposed for the first time after this piece of
litigation began. Perhaps in some cases evidence of post application
performance should be admitted into the record, but it should never be given
significant weight. And commonsense principles of law enforcement require that
post application evidence should only be admissible in cases where the past
violation was inadvertent or isolated. This is not such a case. We have never
seen a case involving so sustained, open and serious an affront to basic
Commission policies, as well as to the interests of the Jackson community and the Nation. Where, as
in this case, misconduct has been deliberate and repeated, no evidence of
post-application performance should be admissible in evidence.
n121 3 FCC 2d 784, 787.
n122 359 F. 2d 994, 1007.
V. United Church of Christ Versus the Federal
Communications Commission: A Landmark on the Road to Where?
In recent months and years the Federal Communications Commission has been the
target of continuing and sharply critical comment from Congress, the courts,
the executive branch, the press, the academic and research community, and even
from its own members -- one of whom (neither of us) recently recommended the
abolition of the agency.n123 While some of this criticism is
unfair, this state of affairs is largely of the Commission's own making. We
believe that this case will, with reason, give rise to renewed attacks upon the
agency.
n123 "Let's Abolish the
FCC," address by Commissioner Robert T. Bartley, before the Illinois
Broadcasters Association, Quincy,Ill., May 23,
1968.
Were it not so serious, and an actual case affecting the rights of the parties
and the public in the Jackson area, this culmination of the
church's efforts in a license renewal proceeding could be considered a classic
caricature of the FCC at its worst. But for the majority's opinion here, no one
would be likely to imagine the Commission capable of reaching so unsound a
result or showing so transparent a disregard of the practices reflected on this
record, or that it would do so at this of all times in American history, or at
the expense of these complainants.
For this case has everything. A racist television station in Mississippi. An offended citizenry that
actually takes the expensive and frustrating course of involving itself in the
license renewal process. A church as a party. Negroes protesting the
programming abuse received by that nearly 50 percent of the people in the
station's viewing area who are black. A landmark, first-impression decision by
the U.S. court of appeals awarding "standing"
to such parties. The station's misrepresentation to the Commission over the
years. The Commission's contortions to keep the public out entirely, then to
place upon them an impossible burden of proof, then to reverse long-held
precedents and ignore the clear suggestions of the court as to the standards to
be applied. This disappointing saga has now ended with a finding by this
Commission that the station has been serving "the public interest"
and is entitled [*464] to a regular, 3-year license renewal. Note what the
majority has succeeded in doing by this single action.
The Commission has gritted its teeth and set its face against public
participation in agency proceedings at a moment when "participatory
democracy" rides the crest of a wave of mass enthusiasm which has already
become a major national movement. Everyone, from States' Righters to New
Leftists, from the upper echelons of the establishment to the storefronts of
the ghetto, has embraced the ideal of extending democracy in all levels of government
-- everyone, that is, except for this FCC majority.
The Commission has been criticized for treating the absence of public
complaints as evidence of service to "the public interest," minimizing
the FCC's responsibility to make independent investigation. The Commission
today shows its strong distaste for the presence of a complaint, even though
(or perhaps because it was) pressed with dedication and persistence by those
representing nearly 50 percent of the population in a community served by the
licensee. The record reveals that the United Church of Christ and its allies
apparently have been regarded within the Commission as a kind of unfamiliar
pestilence, to be scourged through harassment, the piling up of procedural
obstructions, and the denial of rights clearly granted them by a reviewing
court in this very same case.
Great public concern has been focused on the role of broadcasting in fostering
communication between the races. The Kerner Commission devoted an entire
chapter of its Report of the National
Advisory Commission on Civil Disorders to the news media and their
potential contribution to improved race relations.n124 The FCC Chairman Hyde has termed this "not just
another story -- another 'issue of public importance' * * * [but] a crisis * *
*." n125 We have recently witnessed the
assassination of Dr. Martin Luther King and Senator Robert F. Kennedy, the
outbreak of violence in our Nation's capital, and the Poor Peoples March on Washington.
A new presidential commission has just been established to study, among other
things, the possible relation between television programming and violence.n126 And yet the FCC majority picks this moment to find
"the public interest" served by the renewal of a license for a
station which has not only made no effort to include and serve Negroes, but
which has for a decade maintained blatantly racist programming policies.
n124 Report of the National
Advisory Commission on Civil Disorders, ch. 15, "The News media and the
Disorders," pp. 201-213 (1968).
n125 Address by Hon. Rosel H. Hyde
to National Association of Broadcasters, Chicago, Ill., Apr. 1, 1968.
n126 Remarks of President Lyndon
Johnson to the National Commission on the Cause and Prevention of Violence, on
the occasion of signing the Executive order establishing the Commission, Weekly
Compilation of Presidential Documents, vol. 4, No. 24, 935, 936 (June 17, 1968).
Public concern is rising about the growing tendency of protest movements to
take to the streets, and even the techniques of civil disobedience, to
compensate for their inability to find expression for their views on the mass
media. How does this Commission respond? It responds by leaving the doctrine of
broadcast fairness lifeless on the shelf. It responds by blithely renewing the
license of an owner who systematically used one of two television stations in
the capital of Mississippi to suppress the expression of views
favorable to integration.
[*465] The obligation of local broadcast stations to provide local service has
recently been reaffirmed and defended by members of the FCC as well as by
representatives of the broadcasting industry who are concerned about the new
technologies that might replace the present system of local broadcasting with
nationwide wire or satellite-based systems.n127
And yet the FCC has today refused to discipline a licensee which pursued a
policy of deliberate and positive disservice to one-half of its viewing public.
n127 Address by Vincent T.
Wasilewski, president of the National Association of Broadcasters, before
the Florida Association of Broadcasters, Inc., St. Petersburg, Fla., June 10,
1968.
What, one might ask, does the Commission majority expect representative public
groups to do in their participation in license renewal proceedings? The court
of appeals has said that "responsible and representative groups eligible
to intervene * * *; such community organizations as civic associations,
professional societies, unions, churches, and educational institutions or
associations might well be helpful to the Commission." n128 The court is right. Well, here is a group that tried
-- and failed -- in what one would think was a rather extreme case. The court
says that "some mechanism must be developed so that the legitimate
interests of listeners can be made a part of the record which the Commission
evaluates." n129 What is that mechanism to be if
this was not enough?
n128 359 F. 2d 994, 1005.
n129 Ibid.
Much of the problem, we believe, derives from the FCC majority's
mischaracterization of the nature of the broadcaster's responsibility and the
public's rights in the license renewal process. As the court said, "After
nearly five decades of operation the broadcasting industry does not seem to
have grasped the simple fact that a broadcast license is a public trust subject
to termination for breach of duty." n130 What is that duty? To serve "the needs, tastes, and
interests" of the listeners and viewers of that station.n131 Responsible broadcasters not only tolerate, but
actively seek out, the views of local citizens. It is good business as well as
responsible licensee conduct. For the broadcaster is, in effect, an elected
public official, using the property of his audience (the public's airwaves) to
make private profit. He holds a 3-year trust -- not a property right -- to
operate a local station.n132 The burden is upon him to
demonstrate, at every 3-year license renewal, that he has been a faithful
trustee. The burden is not upon the protesting public to prove that his
"rights" should be denied. Frivolous or malicious complaints, or
those inspired by economic competitors, must, of course, be weighed
appropriately. But when "responsible and representative groups" have
opinions, grievances and "legitimate interests" we think they should
be received hospitably and given serious weight by this Commission.
n130 Id., at 1003.
n131 See notes 75-76 supra and
accompanying text.
n132 Communications Act of 1934,
as amended, 47 U.S.C. 309(h).
It should be noted that the citizen participants in this case were able to
employ a resource which is unavailable to most members of the viewing public.
The United Church of Christ was able to hire a lawyer. But it should be
possible for a citizen to participate in a license renewal proceeding without a
lawyer. Careful monitoring studies are desirable; they are an effective form of
advocacy. But a citizen who complains of a given station, and provides the date
and time of the program and a general description of the offending matter,
should be able to rest upon that evidence, leaving the station with the burden
of refuting the charge or explaining the programming. If the time should come
[*466] when we believe the Commission's procedures are being abused, or its
licensees are being harassed, there are remedies enough that can then be
applied. We are talking about otherwise busily occupied American citizens --
like most of us -- who have no familiarity with procedural niceties, but who
may try to make their voices heard on one of the most significant issues in
communities across this country: Radio and television programming. And
participating in FCC proceedings should be, for them, as easy as attending a
PTA meeting, a zoning board hearing, or voting in a city council election. They
should be welcomed by this Commission, not put off or held to unreasonable
requirements.
The Commission majority has often seemed loathe to express any views with
regard to the programming performance of licensees. The ostensible rationale,
to the extent one exists, is that programming matters are best worked out in
the local community, between the broadcaster and his audience. We are
sympathetic to this point of view. Given the choice, we would far prefer
meaningful local participation in programming choices to decisions by seven FCC
Commissioners in Washington. But we emphasize the word
"meaningful." The public must really know of its rights -- not just
be able to find out about them in the United States Code, the Code of Federal
Regulations, and the legal notices (and equivalent radio and television
announcements) in the local community. It must know how to exercise those
rights: The difference between a casual letter to a station or the FCC, and a
petition for intervention in a license renewal proceeding. It must know its
options in programming -- not just be asked whether it likes a given station or
not, or whether it has any new ideas. Participation in programming choices and
FCC proceedings must be encouraged -- not frustrated at every turn. The court
has observed that --
Public participation is especially important in a renewal
proceeding, since the public will have been exposed for at least 3 years to the
licensee's performance * * * [and] may be the only objectors.* * * [Consumers]
are generally among the best vindicators of the public interest. In order to
safeguard the public interest in broadcasting, therefore, we hold that some
"audience participation" must be allowed in license renewal
proceedings.n133
n133 359 F. 2d 994, 1004-1005.
We
agree. The majority professes to -- in those cases in which no representatives
of the public appear, and their absence is read as public endorsement. But
abdication of the responsibility of the Federal Communications Commission to
the citizens of local communities is only justifiable if there is someone there
to assume it. Abdication coupled with positive efforts to prevent public
participation boarders on protection of broadcasters' interests at any cost. And,
indeed, even the interests of the protected industry are little served by
leaving the occasional irresponsible broadcaster free to flaunt the public
interest and soil the reputation of his colleagues.
We are saddened that our colleagues, as well as some members of the
Commission's staff, seem so indifferent to the agency's responsibilities and to
the needs of the times. But, more than that, we are disturbed at the majority's
willingness to go to such great lengths to protect a licensee with a very bad
record. It has ignored what we believe the court of appeals directed us to do.
It has rejected or overlooked what we regard as valid evidence -- all to avoid
reaching [*467] unwanted results. It has sanctioned obstruction and procedural
harassment which can only discourage and defeat citizen intruders so bold as to
venture to exercise rights guaranteed them by law. Indeed, it would appear that
the only way in which members of the public can prevent renewal of an unworthy
station's license is to steal the document from the wall of the station's studio
in the dead of night, or hope that the courts will do more than merely review
and remand cases to the FCC with instructions that may be ignored.
APPENDIX
RULINGS ON EXCEPTIONS
TO THE INITIAL DECISION
Exceptions of
Intervenors
|
|
|
Lexception
No.
|
Ruling
|
|
1, 3, 12, 20, 29, 32, 35, 48, 54, 55, 67, 72, 79, 84, 99.
|
Denied.The examiner's findings are adequately
supported by and adequately reflect the record.
|
|
|
|
|
2, 4, 6, 7, 41, 81, 85,86 89, 90, 91, 92, 93, 94, 95, 96.
|
Denied.The requested findings are not of decisional
significance.
|
|
|
|
|
|
|
Denied.The requested findings are not material to the determination
of this case in light of the Decision.
|
|
|
|
Denied.The examiner's findings are material and a
adequately reflect the record.
|
|
|
|
Denied.See pars. 17-18 of the decision.
|
|
|
|
Denied.The exhibit in question attempted to cast upon the
Commission the burden of determining whether the organizations in question
were segregated or integrated and, absent further proof in that regard, the
exhibit was ot probative.
|
|
11b, 19, 43, 47, 74b, 82, 83.
|
Denied.The requested findings are unsupported by the
record.
|
|
|
|
Denied.The requested finding is not of decisional
significance.Furthermore, the requested finding that Dr. Beittel requested
time is completely unsupported by the record.
|
|
|
|
Granted.See par. 19 of the Decision.
|
|
|
|
Granted to the extent of finding that no Negroes appeared
on the program "Youth Speaks." Denied in all other respects since the
record does not support the intervenors' requested finding.
|
|
|
|
Denied.See pars. 17-18 of the Decision.
|
|
|
|
Denied.The requested finding is not of decisional
significance and is not supported by any citation to the record as required
by sec. 1.277 of our rules.
|
|
|
|
Denied.The finding of the examiner is pertinent and
adequately reflects the record.
|
|
|
|
Denied.The examiner's finding is correct as to Mr. McRaney's
testimony.Further, the question of Negro employment is irrelevant to the
hearing issues.
|
|
|
|
Denied.The finding of the examiner is pertinent and
|
|
|
|
Granted.Finding 33 is amended to read that the
rotation schedule regarding religious programing,
which included Negro ministers, was instituted in
late 1965.
|
|
|
|
Denied.The finding of the examiner adequately re-
flects the record and the requested finding is not of
decisional significance in the light of our decision.
|
|
|
|
Denied.The examiner's findings are relevant and ma-
|
|
|
|
Denied.Exceptions must run to facts and not intentions and
because the exception is argumentative.
|
|
|
|
Granted to the extent of finding that WLBT broadcast from Sept. 3, 1962, to Sept. 30, 1962, a
series
of spot announcements, purchased by the Jackson
Citizens Council, urging support for the Council
because, the ads claimed, the Communists were behind the
racial agitation going on in Mississippi
and that WLBT received no request from any organization to
express views opposed to the view expressed by those announcements.
|
|
|
|
Granted to the extent that the words "that the
request was not granted on the advice of counsel, or
in his words:" are deleted and the following words
are added to the end of the finding: "The request
was not granted on advice of counsel." As modified,
the finding adequately reflects the record.
|
|
|
|
Denied.The proven words are per se innocuous.
Beard's admission that the other words "might"
have been used is not probative.
|
|
|
|
Granted.The fourth sentence of finding 39 is stricken.
|
|
|
|
|
|
|
|
Denied.The examiner's findings are material and
|
|
|
|
Denied.The requested finding is irrelevant to the
examiner's finding regarding WLBT news coverage.
|
|
|
|
Denied.The examiner's findings are adequately supported by
and adequately reflect the record.Further,
the requested finding is not supported by citation to
the record as required by sec. 1.277 of the rules.
|
|
|
|
Denied.The proposed finding does not adequately reflect
the record.Nor is it supported by proper citation to the record as required
by sec. 1.277 of the
|
|
|
|
Denied.The examiner's finding adequately reflects the
record regarding the "Comment" program.
|
|
|
|
Denied.See par. 13 of the Decision.
|
|
|
|
Denied.The examiner's finding is adequately supported by the
record and is relevant and material.
Furthermore, the requested finding is not of decisional
significance.
|
|
|
|
Denied.See par. 13 of the Decision.
|
|
|
|
Denied.The examiner's finding is material and relevant.Further,
the requested finding is not supported
by citation to the record as required by sec. 1.277 of
our rules.
|
|
|
|
Denied.The requested finding is not of decisional
significance.Further, the intervenors' citations concerning ruling are
irrelevant.
|
|
|
|
Denied.See par. 13 of the Decision.
|
|
|
|
Denied.The requested finding is adequately reflected
in pars. 64 and 65 of the Initial Decision.
|
|
|
|
Denied.The requested finding is adequately reflected
in pars. 65 and 66 of the Initial Decision.
|
|
|
|
Denied.The examiner's finding adequately reflects the
record.Further, the requested finding is not supported by
citation to the record as required by
sec. 1.277 of the rules.
|
|
|
|
Denied.The examiner's finding adequately reflects the
record.The inference intervenors' proposed finding
seeks to draw is not supported by the record.
|
|
|
|
Denied.The inference intervenors seek to draw from
these exceptions is not supported by the record.
The record is unclear as to which, if any, or all,
of the NBC network programs listed in stipulation No. 1,
item 24, were carried by WLBT since
the program lists contained in Lamar exhibit 45
and stipulation No. 1, item 17, attachment d, are
admittedly not complete lists (Tr. 1334) of all
WLBT programming.
|
|
|
|
Denied.The examiner's finding adequately reflects
the record.The inference intervenors seek to draw
is baseless.
|
|
|
|
Denied.The examiner's finding is adequately supported
by the record.See par. 13 of the Decision.
|
|
|
|
Granted to the extent of finding that WLBT in response to
the complaint answered that it "did not
consider the matters presented as being controversial, but
a report from our duly elected officials to
the people of Mississippi."
|
|
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|
Granted to the extent of amending finding 86 to read
"By further letter of July 1, 1959, to the NAACP,
the Commission stated that if the program expressed
partisan views, albeit by elected officials, the station
was obligated to present the opposing view."
|
|
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|
Denied.The Commission is unable to identify the reasons
set forth in the brief without more exact
|
|
|
|
Denied.The exceptions are not supported
by citation to the record as required by sec. 1.277 of our
rules.
|
|
|
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Denied.The examiner's findings are adequately supported by
the record.Further, the exceptions are not
supported by proper citation to the record as required by
sec. 1.277 of the rules.
|
|
|
|
Denied.The post-1964 editorials are revelant to the
Decision.See par. 21 of the Decision.
|
|
|
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Denied.The requested finding is not supported by Mr.
|
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|
Granted to the extent that the request was made that
the advisory group meet.Denied in all other respects
since it is not supported by citation to the record as
required by sec. 1.277 of the rules.
|
|
|
|
Granted to the extent to find that Mr. Medgar Evers
requested that Dr. Ralph Bunche, Jackie Robinson,
and Mr. Bill Russell be interviewed over WLBT
and that such request was not honored by WLBT.
Denied in all other respects since the examiner's
finding adequately reflects and is supported by the
record while the requested finding is not supported
by the record.
|
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|
|
Granted.See ruling on exception 75, supra.
|
|
|
|
Denied.The examiner's finding regarding lack of evidence
conforms to the record.
|
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|
|
Granted to the extent of finding that in 1964, and
earlier years, on some occasions courtesy titles for
Negro men and women were not used but that the
extent of the practice is impossible to determine.
See par. 21 of the Decision.
|
|
|
|
Granted only to the extent of finding that "Civic
Calendar" was started in October of 1964.Denied
in all other respects since Dr. Newsome's status
vis-a-vis the NAACP is irrelevant to this Decision.
|
|
|
|
Denied.The requested finding is not of decisional
significance.Further, the Examiner's finding is relevant
and material.
|
|
|
|
Denied.While the intervenors may not agree with
the prognosis of the examiner, it is not a proper
subject of exception unless the findings compel a
different prognosis or no reasonable person could
have arrived at such a prognosis.
|
|
109, 110, 111, 112, 113, 114, 116, 117, 121, 123, 124,
125, 126, 127, 128,30,132,133, 149.
|
Denied.The examiner's conclusions
are adequately supported by the evidence of record and the
findings of fact based on such evidence.
|
|
|
|
Denied.The conclusion of the examiner is adequately
|
|
|
|
Denied.This exception is repetitious of matters properly
findings of fact which are treated elsewhere.
|
|
|
|
Denied.The requested conclusion is not determinative
of the Decision in light of our specific finding on the
matters therein.
|
|
|
|
Denied.The requested conclusion is insignificant.
|
|
|
|
Denied.The examiner's conclusion is relevant and
|
|
|
|
Granted to the extent indicated in our ruling on
intervenors' exception 80, supra.
|
|
|
|
Granted to the extent indicated in par. 21 of the Decision.
|
|
|
|
Denied.Finding 97 adequately reflects the record.
|
|
|
|
Denied.The examiner's conclusions are adequately
supported by the evidence of record and the findings
of fact, based on such evidence.Further, the examiner's
conclusion does not equate sec. 315 of the
Communications Act with hearing issue (a).
|
|
|
|
Denied.The examiner's rulings are correct and
|
|
|
|
|
|
|
Denied.All parties did not consent to receipt of that
|
|
part of the stipulation.Tr. 757, 767.
|
|
|
|
Denied.The examiner's ruling was harmless error.
|
|
|
|
Denied.The examiner's rulings were consistent with
the Review Board's and Commission's orders regarding the
inspection of WLBT records.
|
|
|
|
Denied.The examiner's statement to which objection
is taken did not preclude the introduction of the evidence
in question.
|
|
|
|
Denied.See par. 15 of the Decision.
|
|
|
|
Denied.The examiner's ruling was correct since
Lamar denied receipt of the letter.
|
|
|
|
Denied.The examiner's ruling was correct.The exhibit may
not be considered an admission in light
of Lamar's general denial in response thereto.
Exceptions of Lamar
|
|
|
|
Denied.The requested findings are not of decisional
significance in light of the Decision.
|
|
COMMISSIONERS COX AND
JOHNSON
APPENDIX
A.THE
SIGNIFICANCE OF THE COMMISSION'S 1-YEAR RENEWAL OF WLBT'S LICENSE IN 1965
In our dissenting opinion, we emphasized the anomaly of the Commission's
exoneration of WLBT's 1961-64 record, in view of its 1965 ruling that WLBT's performance
during the period in question was sufficiently disturbing to warrant a
probationary 1-year license renewal.The majority's further statement, in parts
II and IX, disputes this.n1 In part II, the statement suggests
that the 1965 decision did not represent a finding that WLBT had engaged in
misdeeds, but only noted that the petitioners had alleged serious misdeeds
occurred.In part IX, the statement goes on to make a related -- indeed, not
clearly distinguishable -- assertion, that there is no inconsistency between
the two Commission rulings in this case, presumably because the 1965 1-year
renewal was not a sanction for past misdeeds.
n1 Further statement by
Commissioners Hyde (Chairman), Lee, and Wadsworth, public notice No. 19274, July
12, 1968.
If our colleagues are correct about the basis and nature of the 1965 ruling,
the Commission was then guilty of a grave injustice against WLBT.If the
Commission imposed on WLBT a 1-year renewal without a finding that WLBT's past performance
warranted such a measure, WLBT could justifiably charge the Commission with a
serious abuse of discretion, if not a breach of the Constitution.For a 1-year
renewal is a sanction, in law and in fact.The 1960 Report and Order, in which
the Commission first adopted its rules providing for issuance of short-term
licenses, could hardly have been less ambiguous on this point.n2 As one of the broadcasters filing comments urged --
and as all the participants in the rulemaking proceeding understood -- the
1-year renewal proposal was intended to provide a "device less drastic
than the revocation of license or a denial of renewal * * *;" n3 the device was adopted as just such an
"effective enforcement tool," n4 because, in the Commission's own words, "available Commission
procedures -- involving revocating of licenses, cease and desist orders, and
the likelihood of extended hearings -- frequently impose a heavy burden on a
licensee whose culpability may well be slight."n5 The 1-year renewal would serve well as an interim
sanction, the Commission said, because it would -- give the individual licensee
a reasonable opportunity to set his own house in order without unduly
protracting the period of delay in acting upon a pending application for
license renewal, or without, on the other hand, granting a license for a full
3-year period before there has been an opportunity for the licensee to give
reliable assurances, through demonstration in practice, that deficiencies will
be corrected." [Emphasis added.] n6
n2 20 P. & F. Radio Reg. 1589
(1960).
n3 Id. at 1590, par. 3.
n4 Id. at 1592, par. 12.
n5 Ibid.
n6 Ibid.
Since
1960, Commission precedents confirm the penal import of the 1-year renewal
procedure.n7
n7 KDB Broadcasting, 22 P. &
F. Radio Reg. 180 (1961); Allentown Broadcasting Corp., 22 P. & F. Radio
Reg. 181 (1961); Miss Ark Broadcasting Co., 22 P. & F. Radio Reg. 305
(1961); and Noble Broadcasting Corp., 21 P. & F. Radio Reg. 881 (1961).
In 1965, the Commission used the device just as it was intended to be used, and
just as we have characterized it -- as a kind of suspended sentence (though one
which imposes substantial and recognized burdens on the station) "plainly
probationary in nature." n8
As we stated in our dissenting opinion, the 1965 1-year renewal was conditioned
by the Commission on the requirements that WLBT comply strictly with the
fairness doctrine, that it promptly initiate meaningful contacts with the Negro
Community in Jackson, and that it "immediately cease discriminatory
programming patterns." n9
[Emphasis added.] A reading of the Commission's 1965 decision itself -- to
which the present further statement never once refers -- leaves no doubt that
the Commission then was quite convinced that WLBT had been imperfect in its
loyalty to the fairness doctrine, that it had not maintained contacts with
Jackson Negroes, and that it had beenengaging in the discriminatory programming
patterns which the Commission ordered it to cease.n10
n8 Dissent, text at note 7.We are
frankly dumbfounded by the further statement's attempt to draw an important
distinction between a "Memorandum Opinion and Order" and a
"decision." Further statement, note 1.The two phrases are generically
indistinguishable.When the Commission adopted the 1965 Memorandum Opinion and
Order in Lamar Life Broadcasting Co., 38 FCC 1143, 5 P. & F. Radio Reg. 2d
205 (1965), a "decision" was perforce made.The effect of that action
was to record publicly the fact that the Commission found that WLBT's programming
practices were such as to warrant a probationary license renewal. There is
nothing magical in the words "Memorandum Opinion and Order" which can
suggest anything other than the fact that a "decision" was
made.Consequently, no amount of semantic acrobatics can erase the fact that the
Commission, in 1965, looked at the facts and interpreted them in a way which is
in direct contravention to the interpretation the majority now places upon
those same facts.
n9 Lamar Life Broadcasting Co., 38
FCC 1143, 1154, 5 P. & F. Radio Reg. 2d 205, 220 (1965).
n10 Ibid.In its 1965 Memorandum
Opinion and Order, the Commission noted that many of petitioners' allegations
raised "substantial questions * * * as to whether the licensee's operation
can be said to have conformed fully to the public interest standard of the
Communications Act of 1934" (p. 1153, par. 22). Interestingly, the
Commission at several points did not go beyond noting that some instances were
questionable, apparently because WLBT had supplied the Commission with several
unsatisfactory responses which appeared evasive, incomplete or irrelevant (p.
1146, pars. 8, 10, and 11; p. 1147, pars. 12, 13, and note 8; p. 1153, par.
22).Nevertheless, the Commission did determine that WLBT had incurred
obligations under the fairness doctrine by the following programming (proper
discharge of which it had not demonstrated to the Commission 's
satisfaction).Specifically, the Commission --
(1) Found that station editorials
broadcast during the Meredith Ole Miss crisis characteristically opposed
Meredith's admission (p. 1146, par. 9(i));
(2) Examined station scripts for
the 1962-63 "Comment" programs, and concluded that "While, as
the licensee claims, the editorials can be considered as discussing 'states
rights,' it cannot, we think, reasonably be contended that they did not also
discuss the issue of segregation" (p. 1147, par. 12);
(3) Discovered that "* * *
With respect to this ["Comment"] program series during the period
under investigation, there were several spokesmen who presented various
segregationist viewpoints but, with possibly one exception, no Negro or other
spokesman was shown to have presented the viewpoint for integration" (p.
1148, par. 14);
(4) Found that WLBT's excuse
offered for not allowing commercial spot time in answer to a White Citizens
Council advertisement in September 1962, was "all the more strained, since
the announcement in question constituted a personal attack upon the groups or
persons leading the integration effort in Jackson (in that it called such
groups or persons 'Communists') and thus called for the mailing of copies of
the announcements to the group or persons in question, with an offer for a
comparable response" (pp. 1146-1147, par. 11); and
(5) Noted that WLBT "does not
try to defend" its practice of deliberately excluding from a daily
devotional program "half the churches in the area on the basis of
race" (pp. 1154-1155, par. 25 (iv)).
If, as the further statement implies, the Commission could not find facts
justifying its imposition of the sanction of a 1-year renewal in 1965, it is
all the more clear that the Commission should then have designated the whole
matter for hearing, as Commissioners E. William Henry (then Chairman) and
Kenneth A. Cox pointed out in their dissent to the 1965 Memorandum Opinion and
Order (pp. 1158-1166).But, obviously, the Commission did ascertain enough to be
sure that WLBT, at the very least, deserved only a 1-year renewal.While the
1-year renewal sanction was not founded on evidentiary facts -- that is,
testimony received in a formal hearing – it was found upon facts, some of which
were not even contested by Lamar Life (e.g., p. 1155, pars. 25(iv) and 26:
"We realize that there has been merited criticism of the station and its
operation in the past.").
The Commission looked at the long record of complaints against WLBT, and its
correspondence with the Commission and with private complainants.It had before
it the earlier report of two investigators who had been sent to Jackson to
look into the facts of the station's performance.On the basis of those
findings, the Commission decided, in the words of its 1960 Report and Order,
that the deficiencies had in fact occurred, and that a probationary 1-year
renewal was the appropriate sanction under the circumstances.
B.THE BURDEN OF PROOF QUESTION
We remain perplexed by our colleagues' interpretation of the burden of proof
issue, notwithstanding their attempt to further elucidate this problem in the
further statement.As we noted in our dissenting opinion, the court of appeals
clearly expressed its expectation that the Commission would resolve the problem
by placing upon petitioners "only the burden of going forward with
evidence in the first instance." n11
By the strictures of the Communications Act of 1934, it is the licensee who is
obligated to prove that renewal of his license is in the public interest,
convenience, or necessity.n12
n11 Office of Communication of
United Church of Christ v. FCC, 8 P. & F. Radio Reg. 2d 2081, 2082 (D.C. Cir.
1966).
n12 47 U.S.C. § 309(e) (1964)
("The burden of proceeding with the introduction of evidence and the
burden of proof shall be upon the applicant, except that with respect to any
issue presented by a petition to deny * * *, such burden shall be as determined
by the Commission.").
Our colleagues maintain that, "neither the burden of going forward with
the evidence nor the burden of non-persuasion [is] * * * discharged by the
party on whom it may fall by the simple making of charges and/or allegations." n13 Needless to say, we have not suggested that
"simple charges and/or allegations" are adequate.However, under their
construction, it almost seems that presumptions favoring the licensee arise as
to each of the issues contained in the pleadings; and, thus, as to the ultimate
issue of public interest.This rule of procedure is plainly unjust and flatly
contradictory of the court's memorandum respecting the burden of proof
questions, a fact noted in our dissent and not disputed by the further statement.
n13 Further statement, pp. 2-3.
The further statement seems to hypothesize a case in which "petitioners
had charged that on one occasion a Negro had been mentioned without a courtesy
title * * *." n14 [Emphasis in original.] Our colleagues
impute to us the desire, given these circumstances, to require that WLBT be
subjected to onerous requirements of proof to refute that charge.
n14 Id. at p. 3.We have
puzzled long over the unusual syntax and punctuation of this sentence from the
further statement, in an effort to determine whether it is a statement or a
question, and whether it purports to be a hypothetical or an interpretation of
the record.Since petitioners' claims respecting the use of courtesy titles have
been before this Commission in voluminous detail since 1964, we understand the
further statement to recognize that more than one individual testified to more
than one example of the failure to use courtesy titles.Record, 532, 560-561,
597, 695, 1250.
We agree with the further statement that under these stated circumstances
renewal should not be denied summarily without further proof.But the
hypothetical is a red herring.At the hearing into petitioners' charges
respecting WLBT's general practice in referring to Negroes, sworn testimony was
offered by several witnesses that WLBT employees frequently engaged in the
practice of using the terms "nigger" and "nigra," n15 a practice unquestionably related to the allegation
that station employees intentionally visited discourtesies upon Negroes.
n15 Record, 558, 567, 661-612,
1476-1477, 1503-1505.
Determinative, moreover, is the fact that sworn testimony is not, as the
further statement appears to assume, the equivalent only of a charge or
allegation in a complaint.Unrebutted, such testimony ordinarily should be
dispositive of the issue.Moreover, this testimony need not be overwhelming in
its weight and need not come from a multitude of witnesses.When petitioners
offered evidence in support of their pleadings they discharged their burden of
going forward with evidence in the first instance.The double burden of going
forward with evidence to the contrary and of ultimate persuasion on the issue
then devolved on WLBT.The station would not have had to produce "3 days,
or even months or years" n16
of tapes to refute such testimony.It need only have offered contrary
testimony.Once this had been accomplished, we would then have reached the
question of persuasion.But without contrary testimony from WLBT as to its
practices respecting references to Negroes, petitioners' proof of specific
instances of misconduct must be viewed as unrebutted and dispositive of the
issue.
n16 Further statement, pt. III.In
view of our colleagues' cryptic reference in pt. III to "legal systems in
other nations" [emphasis in original] we would point out that the
imposition of a sanction such as a 1-year renewal, without first affording the
penalized party a hearing, is seven less fair than the practice in many
European countries of putting the burden of proof on the accused.We approve of
neither practice.But we do believe, as suggested in sec.A, supra, that the
Commission did have a factual basis for finding WLBT's performance sufficiently
alarming to warrant imposition of a sanction in 1965. This action was taken on
the basis of evidence -- not mere allegations in the petitions to deny -- which
justified, and, indeed, required, denial of WLBT's regular renewal
application.Likewise, in this present proceeding, we believe that the hearing
has adduced a wealth of evidence to warrant complete denial of the renewal
application.
Not having appreciated the distinction between charges and sworn testimony, it
is not surprising that the majority further confuses the difference between an
obligation to come forward with evidence and the risk of non-persuasion.The
former may be, and often is, placed upon one party while the latter reposes
with another.Foreign legal systems have nothing to do with the allocation of
theseburdens.It is elementary that in this Nation the burdens are distributed
differently, according to the nature of the proceeding and the various
presumptions which may arise.In a criminal proceeding, it is the State which is
ordinarily obligated to come forward with evidence as well as bear the risk of
non-persuasion; in tort actions, the plaintiff may be charged with the risk of
non-persuasion, although the defendant is required to come forward with
evidence to which he has exclusive access.In Commission proceedings, the
licensee is expected to bear the risk of non-persuasion, although the burden of
producing evidence in the first instance may be allocated as circumstances
warrant.
If our colleagues have consistently avoided the proper allocation of burdens
because they view such a distribution as foreign to our legal system, then it
is all the more incomprehensible how they were hoodwinked into such a naive
view of the legal process.
C.THE "SORRY, CABLE TROUBLE" INCIDENT
The further statement disputes our version of the 1963 "Sorry, Cable Trouble"
incident.It claims that the record does not support our conclusion that Dr. R.
Edwin King testified that, after he saw a "Sorry, Cable Trouble" sign
substituted for a portion of an NBC program in which a Jackson situation
was portrayed, he called the station and was told by someone who refused to
identify himself that the Jackson sit-in was deliberately blacked out by
WLBT.n17 All we can say in response to this
assertion is that it is not true: the record pages show that Rev. King
testified to having called the station; to having asked if the program had been
intentionally interrupted to avoid telecasting scenes from the Woolworth
sit-in; to having received an affirmative answer; and to the fact that the
individual answering WLBT's telephone refused to identify himself.n18
n17 Further statement, pt. IV.
n18 "Q.[Counsel for
petitioners.] With whom did you speak?"
"A.[Dr. King.] The man
refused to identify himself * * *.I said, 'Did you cut that off because that
showed those Negroes sitting in at Woolworth's in Jackson?' The man said, 'Yes.'"
Record, 720-721, 749-50.
The record also shows that the examiner ordered Dr. King's testimony stricken
on the ground that, "You can't quote some indisclosed [sic]
person." n19
n19 Record, 721.
The majority is correct in noting that the record at this point does not
support our statement that Dr. King asked for "the manager" in making
this particular telephone call.n20 But this
mistake hardly affects our conclusions about the incident in question; it does
not change the basic facts testified to by Dr. King -- that he was told that
the "Sorry, Cable Trouble" sign was fraudulently substituted for the
network program then on the air -- nor the fact that, by refusing to give his
name to Dr. King, whoever took the call ultimately succeeded in having
testimony about the incident stricken from the record.
n20 See dissent, text at note 38.
It might be noted, moreover, that in similar instances, at least two church
witnesses testified that they telephoned a complaint to WLBT, that their
complaints were rebuffed -- and that the FCC's examiner also rejected their
testimony.Mrs. Ruth B. Owens attempted to recount the reaction of a station
employee when she called to complain about a news announcer's use of the word
"nigger." She did ask to speak with the manager, and was told he was
not present.She then apparently began to explain to the WLBT employee what,
specifically, she objected to in the newscast.n21 The examiner ordered her testimony stricken because, "That is too
broad and it is pure hearsay." n22
Rev. Wendell P. Taylor also testified to having phoned WLBT to complain about
news coverage of a sermon he had delivered.The examiner ordered this testimony
stricken because, "You have to say specifically who you spoke
to." n23
n21 Record, 595-596.
n22 Record, 596.
n23 Record, 645.
As counsel for petitioners noted, it is reasonable for members of the public to
anticipate that persons answering WLBT's telephone are employees of that station,
and that statements made by these employees are consequently attributable to
the station.n24 Perhaps counsel for WLBT would have
us assume interlopers repeatedly gain access to the station's telephones for
purposes of frustrating complainants.If this is true, and it seems improbable,
this in turn would raise grave questions respecting the licensee's reasonable
control of the operation of the station.In any event, as the examiner stated to
WLBT's counsel, "You probably know who it is" who answered WLBT's
telephone.n25
n24 Record, 596.
n25 Record, 735.
At a minimum, petitioners should certainly have been accorded the same
solicitude the examiner displayed for WLBT when he admitted into evidence an
unsigned letter purportedly written by an official from Southern Bell designed
to exonerate the station from any control over the interruption of
"American Revolution, '63." n26
Grave suspicions about FCC policies and practices will invariably arise when
its officials appear to erect insuperable evidentiary standards for some
witnesses and then tear them down again for others.
n26 Broadcast Bureau exhibit No.
4.The exhibit was apparently placed in the hands of the Broadcast Bureau by Mr.
Beard or his counsel.Mr. Beard testified to having received the original copy,
although it does not appear to have been produced for the record.Record,
876-878.
D.THE "LITTLE ROCK CRISIS" MATTER
The further statement contends that the record does not support our conclusion
that WLBT violated the fairness doctrine in connection with its 1957 broadcast
by Governor Coleman, Senator Eastland, and Congressman John Bell Williams on
the Little Rock Crisis.n27 The basis
for our colleagues' assertion on this point is difficult to discern.By their
own characterization (which is accurate), the record shows that on the program
"* * * there were no Negroes, no persons to represent the Negro viewpoint,
no persons who favored 'segregation,' [sic; as the further statement indicates,
this must mean 'integration'] and no persons who favored obeying Federal
courts." n28 The assertion in our dissent that
the officials on the program blamed Negroes for the outbreak of violence in
Little Rock was overstated, as our colleagues note.n29 This does not, however, undermine the fact that
uncontradicted testimony in the record demonstrates that the three officials
named uniformly backed segregation, or the basic conclusion that WLBT
deliberately flouted fairness principles in its treatment of the Little Rock
affair.WLBT not only failed to present fairly all sides of this controversial
issue of public importance, it even refused reply time when requested by Medgar
W. Evers for the NAACP (intervenors exhibits 104, 106).
n27 Further statement, pt. V.
n28 Ibid.See Record, 677-679.
n29 Dissent, text at note 46.
We do not need to envision the majority's case of a "strictly factual
report by a city commissioner on progress in building a sewage disposal
plant" n30 to arrive at a better appreciation
of the fairness doctrine.The short answer is that the question of whether the
program was "partisan or controversial" has, sewage plants
notwithstanding, been resolved.Stipulation 1, No. 16 -- a letter from The
Commission to Lamar Life Broadcasting Co., dated July 25, 1963 – noted that a
review of WLBT's past record indicated that the grounds for refusing reply time
had been "found by the Commission to be inconsistent with the fairness
doctrine." n31
n30 Further statement, pt. VIII.The
bankruptcy of the majority's argument is highlighted by footnote 16 of the
further statement, where the question is asked if we would have had Washington,D.C., stations present someone
"urging rioters, arsonists, and looters to remain on the streets in
defiance of Commissioner Washington [who urged compliance with a curfew]."
This is nonsense, and our colleagues know it.They can point to nothing in our
dissent, or in any other statement from this Commission with respect to the
fairness doctrine, which would support such a suggestion.What we question about
par. 14 in the majority's original opinion is its injection of the concept of
"partisan" programs into the fairness field -- for the first time, so
far as we can recall. In pt. VIII of the further statement -- which is
captioned "Applicability of the Fairness Doctrine to a Possibly
Nonpartisan, Noncontroversial Program" (which implies that the Little
Rock crisis program was of that fairness doctrine would have applied.But they
go on the say, "We did not find any record support for the contention that
the program in question ["The Little Rock Crisis' program] was 'partisan.'"
Our colleagues have still not
explained the sudden unveiling of this new requirement which must be found
present before the fairness doctrine can be invoked.Nor have they explained
their apparent conclusion that Governor Coleman, Senator Eastland, and
Congressman Williams were not then "[adherents] to a party or
faction," whether unreasoning or otherwise.Further statement, pt. VIII.(It
would seem particularly unfortunate if only the expression of the views of
unreasoning adherents to a party or faction were protected by the fairness
doctrine, since that would necessarily exclude the great volume of reasoned
disputation which the doctrine is designed to protect and promote.)
The real issue is whether or not
these public officials expressed positions on one side of the integration
question over WLBT's facilities.If so, the question then arises as to whether
WLBT presented an opportunity to Negro leaders or others for the purpose of
stating the opposing viewpoint.We think the record clearly shows that the
station made itself available for broadcast of the prosegregation position, but
not for the opposing viewpoint.Consequently, the fairness doctrine was
applicable to this situation, and WLBT violated its strictures.We do not
believe that it is necessary to engage in discussion about partisanship to
determine whether the doctrine of fairness was transgressed.
n31 Stipulation 1, No. 16, p.
3.This 1963 letter, which in part reviewed for WLBT the station's past history
of programming practices, serves to remove any possible doubt about the meaning
of the Commission's earlier letter, which was mailed to WLBT by direction of
the Commission on July 1, 1959, intervenors exhibit No. 110.
E.THE CITIZENS COUNCIL FORUM
Our colleagues' reaffirmed preference for the testimony of Fred Beard
respecting the White Citizens Council depends entirely upon a conclusory
argument.There is nowhere offered in either the original opinion or the
subsequent further statement one shred of a reason why Council member Beard's
testimony "outweighed the contrary testimony" n32 of Dr. Beittel
(president of Tougaloo College) and Mrs. Hazel Brannon Smith (Pulitzer Prize
winning journalist who testified as a witness for WLBT).
n32 Further statement, pt. VI.In
this section of the further statement, our colleagues seized upon the fact that
petitioners' proposed findings referred to Hazel Brannon Smith as an
"expert witness." It is true that at 1245 of the Record there was
some discussion respecting Mrs. Smith's qualifications to testify about WLBT's
news programming, and that the examiner apparently regarded her as
qualified.However, that qualification would apply not just to one question
alone, as the further statement would have us believe, but to all questions
regarding the news broadcasts on WLBT.When, at Record 1253, Mrs. Smith
characterized the ideological position of the White Citizens Council, as quoted
in the petitioners' proposed finding No. 54, no challenge was raised as to her
qualifications to do so.Consequently, we cannot discover the basis for our
colleagues' stressing that she testified about the Citizens Council as a
non-expert.
The majority's subsequent statement raises the implication that Mr. Beard was
the only "qualified" expert witness to testify about the Citizens
Council. Presumably, members of the public viewing the council's spot
announcements are not, in the majority's view, qualified to testify as to the
nature of such programs.Presumably, too, the president of TougalooCollege,
a resident of Jackson for 7 years and an activist in the civil rights
movement, is not qualified to testify about one of the civil rights movement's
chief organizational antagonists.In short, the further statement seems to
suggest that only members or former members of the White Citizens Council can
be expected to testify objectively and informatively about that organization.
We are not cognizant of any proscription against members of the public
testifying about such matters, especially when they are so intimately connected
with the public issues of chief concern to such an organization.The rules as to
expert testimony were never designed to apply in such a situation or to achieve
such results.Even less are we willing to accept the majority's conclusion that
an avowed segregationist's view of such an organization outweighs that of two
other individuals.If the majority's analysis is to prevail, the Commission
hereafter will have to solicit the opinion of Mr. Dan Smoot before
characterizing the Dan Smoot Report as controversial; or consult Rev. Billy
James Hargis before concluding that his programs involve anything but religious
issues.
No doubt, Mr. Beard is exceptionally well acquainted with the general purposes
of the White Citizens Council.But we cannot quite believe that the majority is
serious in maintaining its preference for such self-interested testimony over
that offered by Mrs. Smith and Dr. Beittel.
F.THE FREEDOM BOOKSTORE
We are still disturbed over the surprise expressed in the further statement at
finding no probative evidence about the Freedom Bookstore in the record.n33 In light of the examiner's consistent
and unequivocal announcements that he would not permit such evidence, it should
not come as a surprise that none appears in the record.n34
n33 Further statement, pt. XI.
n34 See dissent, text at notes
51-58.
Mr. Fred Beard is, of course, the central figure in connecting the bookstore
with the station.If it is not enough that the bookstore received numerous spot
announcements gratis on WLBT, n35 and shared its offices, n36 Mr. Beard's
ironic action in referring Rev. Robert L.T. Smith to the bookstore when Rev.
Smith approached WLBT for campaign time on the air is certainly probative of
something more than an accidental, innocent relationship.n37
n35 Intervenors exhibit No. 49,
pp. 1-26; Record, 1402.
n36 Intervenors exhibit No. 49, p.
27.
n37 In speaking of Mr. Beard's
conduct on occasions when Rev. Smith approached WLBT to buy campaign time, Rev.
Smith testified "[On] more than one occasion he referred us to certain
books and booklets in the bookstore there -- so-called bookstore there in the
premises of the broadcasting company -- go out of his office, down a little
hall and down this way, and we weren't too much surprised after the way he
acted but we found books there with swastikas on the * * *" [sic]. Record,
249.
When counsel for petitioners attempted to develop a line of questioning that
would permit Dr. Beittel to testify about his knowledge of this connection
between Beard, the Citizens Council and the bookstore, the examiner cut him off
at the starting point, n38 as he had
cut Rev. Smith off when he began testifying about the same relationship.n39
n38 As we pointed out in our
dissent, note 55, Dr. Beittel had previously written FCC Chairman E. William
Henry to complain about station manager Fred Beard's operation of the Freedom
Bookstore on WLBT's premises, and to note that the bookstore propagated the
philosophy of the White Citizens Council, of which Beard was a former
member.Intervenors exhibit No. 18.Counsel for intervenors attempted to have Dr.
Beittel testify as to his knowledge of this interconnection, first by
introducing the letter and next by trying to qualify Dr. Beittel by
establishing his familiarity with the Citizens Council.Record, 431, 435,
447-458.The examiner frustrated both attempts, consistent with his previous
ruling that all testimony about the Bookstore was irrelevant.Record, 250-251.
n39 Record, 249.
G.MISREPRESENTATIONS BY WLBT
The further statement seeks to justify five separate instances of policy
practices by WLBT which we identified as misrepresentations to the public and
the Commission.n40
n40 Further statement, pt. VII.
1.The first involves the contradiction between WLBT's profession that it
eschewed programming of controversial issues involving the question of
integration in the late 1950's and early 1960's.The further statement justifies
WLBT's departure from the Commission's oft-announced policy by noting, "we
believe the extent of that representation was limited to full and complete programs
(as opposed to spot announcements or editorials) * * *." n41 [Emphasis in
original.] We have no intention of engaging the majority in a discussion of its
conception of the meaning of the word "program." But we think it
somewhat less than ingenuous for the majority to contend that local programs
are treated differently than locally originated editorials under the
Commission's policies relating to controversial issue programming.The fairness
doctrine does not envision such a distinction; the FCC has never before drawn
such a distinction in ruling on broadcasters' treatment of public controversy;
the application form provided for applicants does not stipulate such a fine
line.If licensees are to be permitted to avoid the consequences of
representations made to the Commission by the majority's use of illusory
distinctions between editorials and local programs, then the majority should
announce this as general policy, rather than hide it in an obscure and
obscuring footnote to a further statement in an adjudicative case.n42
n41 Id. at note 10."Local
programs" are defined by the Commission's application form for renewal of
station licenses both by source and by type.By source of origin, which is
essentially a mechanical rubric, "A local program (L) is any program
originated or produced by the station, or for the production of which the
station is substantially responsible * * *.All non-network news programs may be
classified as local * * *." FCC form 303, sec. IV-B, p. i.By type of
program, the Commission's form defines 11 varieties of programs, including
agricultural, entertainment, news, public affairs, religious, instructional,
sports, editorials, political programs, educational institution programs, and
other programs.Public affairs programming includes: Talks, commentaries,
discussions, speeches, editorials, political programs, documentaries, forums,
panels, round tables, and similar programs primarily concerning local,
national, and international public affairs. Id. at i-ii.
Clearly, locally originated
editorials stating the opinion of the licensee are within the meaning of a
local program as defined in the Commission's renewal application form. Id.
at ii.Beyond the vague hints supplied by the further statement that somehow
WLBT misunderstood the meaning of the word "program," there is no
basis whatsoever for believing that WLBT meant by local programs something
other than that which it means when it files an application for renewal with
this Commission.
n42 Ibid.
2.The sequence of events surrounding Rev. Robert L.T. Smith's request for
campaign spot announcement space on WLBT is long and involved, but illustrative
of the variegated efforts of WLBT to offer up numerous excuses for its failures
to adhere to Commission rules.Briefly, this was the sequence of events which
followed the first 1962 exchange between Rev. Smith and Mr. Fred Beard, when
Mr. Beard refused Rev. Smith access to WLBT's facilities and gratuitously
pointed the way to the Freedom Bookstore: Rev. Smith complained to the Commission
on January 16, 1962; n43 the
Commission in turn asked that WLBT answer the charges filed by Rev. Smith.n44 WLBT then wired, on February 1, 1962, that
"WLBT has not refused to sell the candidate time * * *.We have * * *
offered to sell him sport [sic] announcements at the present time." n45 This was reaffirmed by WLBT in a letter dated the
same day, in which the station avowed, "WLBT has not refused to sell the
candidate time." n46 On February
21, 1962, the FCC wrote to Rev. Smith explaining that it had apprised WLBT of
its obligations under Commission rules to provide reasonable access, and that
WLBT's action could be reviewed at renewal time.n47 Following this admonition, WLBT countered on April 12, 1962, with
notification of a "review" concluding that "we would not be
properly discharging our responsibility as a broadcast licensee or otherwise
operating in the public interest if we were to permit the facilities of station
WLBT to be used by any candidate * * *." n48 Curiously, this "review" followed by one
day Rev. Smith's repetition of his request to buy time on WLBT.n49 Asked to justify this
"review" in light of its peculiarly close association with Rev.
Smith's reintroduced request to buy time, WLBT responded with the excuse,
"Our decision not to sell time to Reverend Smith was primarily based on
the fact that there is no interest in this race being manifested in the
district * * *." n50
n43 Intervenors exhibit No. 7.
n44 Stipulation 1, No. 2.
n45 Stipulation 1, No. 3.
n46 Stipulation 1, No. 4.
n47 Stipulation 1, No. 7.
n48 Stipulation 1, No. 8.
n49 Intervenors exhibit No. 11, p.
2.
n50 Stipulation 1, No.
11.Ultimately, Rev. Smith was afforded limited access to WLBT prior to the
congressional election.Record, 312.But he did not appear over WLBT's facilities
until after the Feb. 1, 1962, deadline for registration and payment of the
local poll tax. As Rev. Smith testified, with the February 1 deadline past,
"[Our] purpose was defeated * * *." Record, 312.
It is of little wonder that no interest was being manifested, in light of the
fact that WLBT had persistently dragged its heels since Rev. Smith's January
1962 request to buy time.It is common knowledge that stimulation of the public
's interest in a candidate is integrally related to the degree of exposure
afforded him over broadcast facilities.The Commission's credulity is called
into serious question when it accepts such a thin subterfuge as erected by WLBT
throughout this matter.First, the station contended that it had offered Rev.
Smith spot announcements any time he wished to use them; then, when he applied
again for campaign time, WLBT suddenly undertook a "review,"
concluding that a change in policy was needed. Rev. Smith, armed with a letter
of inquiry from the FCC, was an entirely different Rev. Smith from the one who
approached WLBT in January.Understandably, a "review" was in order.
3.The third issue of misrepresentation which the majority seeks to dispel
involves the question of whether or not WLBT broadcast editorials on the days
following its avowed moratorium on locally originated opinion shows.The only
physical evidence adduced, the station's own logs, strongly support
petitioners' charges that WLBT did not truthfully represent to the Commission
its programming policies during this period.n51
Mr. Beard testified that the station was experiencing added responsibilities
during this period, and implied that somehow this might account for an error in
the logs.n52 But it is left to our conjecture as
to the ways in which these errors might have been created by the presence of
outside newsmen covering the Meredith-Ole Miss crisis.It is decidedly not true,
however, as the majority would have us believe, n53 that the station's logs for this period were in such
error that no one could conclude with certainty that editorials were
broadcast.Station employee, and now program manager, Robert L. McRaney
testified that, "According to the way I read the log, it indicates that it
[a September 27 editorial] did run * * *.It is difficult to match up the
initials on the right but the timing on the left seems to indicate
that." n54
n51 Intervenors exhibit No. 31.
n52 Record, 843-848.
n53 Further Statement, pt. VII.
n54 Record, 1461.See also 1462.
At issue here is an important and as yet unresolved problem: Just how are we to
provide for public participation in station renewal processes?If the majority's
rigorous standards for evidentiary testimony are to apply, a public group
opposing renewal must produce witnesses who can detail name, date and hour of
each offensive broadcast and transgression by the station.But if they produce
from the station's own records evidence of those dates and hours, the majority
will accept as dispositive of the issue the self-serving testimony of a man
like Fred Beard.Such parties are likely to decide that they may as well stay
home as take part in renewal hearings, for neither their collective
recollections nor the station's own records will be accepted as sufficient and
satisfying proof when renewal time arrives.
4.The fourth objection raised by the further statement rests again upon an
allegedly critical distinction between "local programs" and
"editorials." n55 As we noted
above, such a distinction disserves both the public and this Commission.By
categorizing editorials and spot announcements differently than "local
programs," our colleagues achieve for WLBT a kind of de facto segregation
of locally originated telecasts dealing with questions of civil rights.No one disputes
the fact the WLBT properly offered reply time to persons wishing to respond to
noncivil rights oriented statements.Mrs. Hazel Brannon Smith, for instance,
occasionally appeared on WLBT from 1960-64 to answer opposing viewpoints on
numerous community issues -- none of which directly concerned civil rights.n56 That she was, incidentally, widely known as an
advocate of integration does not appear to us to lend a special significance to
such appearances, or to discharge WLBT's obligation to present prointegration
spokesmen in response to spot announcements, editorials and "local
programs" alike.
n55 Further Statement, pt. VII.
n56 Of the two instances which
Mrs. Smith could describe as her appearances on the "Comment"
programs, one concerned the national birthday of the 4-H Club, and its
respective chapter in HolmesCounty.The other related to "the
importance of maintaining a free press." Record, 1243-44.But see, Lamar
Life Broadcasting Co., 38 FCC 1143, 1148 note 9, 5 P. & F. Radio Reg. 2d
205, 213 note 9 (1965).
5.Finally, our colleagues again dispute our contention that Lamar Life
Insurance Co. has, in fact, been in direct control of WLBT since the initial
award of a construction permit.To be sure, the facts have been before the
Commission.In 1953 Lamar Life Insurance Co. ostensibly transferred control of
WLBT to Lamar Life Broadcasting Co.n57
In 1965, after WLBT fell under the scrutiny of the Commission, WLBT was
transferred back to Lamar Life Insurance. n58 As Commissioner Cox then noted, there was substantial reason to believe
that the 1965 application for transfer of control was designed as a subterfuge
to permit a later claim by WLBT that, while it had been remiss in the past, the
new ownership would improve things.n59
That Commissioner Cox was vindicated in his suspicions by later pleadings of
Lamar Life Insurance Co. n60 does not
seem to us sufficient reason to find that because a Commissioner saw behind the
subterfuge.WLBT therefore made no misrepresentations to the Commission.
n57 Lamar Life Broadcasting Co.,
38 FCC 1143, 1165, 5 P. & F. Radio Reg. 2d 205, 229 (1965) (dissenting
opinion of Chairman Henry in which Commissioner Cox joins).
n58 Lamar Life Broadcasting Co., 1
FCC 2d 1484, 6 P. & F. Radio Reg. 2d 308 (1966).
n59 As officials of Lamar Life
Insurance Co. averred in a letter to theCommission dated Apr. 9, 1965, "We
realize that there has been merited criticism of the station and its operations
in the past.However * * * we assure you that, through direct control, we will
see that the policies and directives of the Federal Communications Commission
are strictly adhered to * * *" stipulation 1, No. 25.
n60 Attachment (Lamar exhibit No.
64) to proposed findings of fact and conclusions of law of Lamar Life Insurance
Co., filed with the Commission July 28, 1967.
FURTHER STATEMENT BY
COMMISSIONERS HYDE (CHAIRMAN), LEE, AND WADSWORTH
I.
Introduction
The dissenting opinion issued in this case requires this further statement. It
is apparent from the dissent that the dissenting Commissioners have
misunderstood both the facts established on the record and the reasoning
process by which we drew our conclusions.
II.
Allegations or Charges Not Facts Unless Proven
We note a tendency on the part of the dissenting Commissioners to use rulings
on demurrer as if they were proven facts.n1 To this substantive error we now
address ourselves in detail.At page 2 of the dissent, the dissenters clearly
recognized that the court of appeals ruled "petitioners' allegations were
sufficiently serious and plausible to require the agency to hold a full evidentiary hearing
[italic supplied]" a clear example of a ruling on demurrer. But by page 3,
the allegations (recognized as such by the court) become "the facts
requiring the original 1-year renewal [italic supplied]." Our 1965
Memorandum Opinion and Order was not founded on evidentiary facts and we are
sure that the dissenters would not want us to make such findings without a full
adjudicatory hearing.Indeed, one of the presently dissenting Commissioners
(Commissioner Cox) joined in a dissent in 1965 which remarked that, "these
petitions contain most serious allegations which, if true, would indicate * * *
[italic supplied]." At page 3 of the dissent the dissenters state that in
May 1965 the Commission "found" concerning WLBT's performance (which
the Commission certainly did not do) and in 1968 "looks over the same
record" and granted a [*475]renewal.The dissenters apparently contend that
when one makes charges in 1965, they are held good against demurrer even though
they are not proven in a subsequent evidentiary hearing, one may still
criticize the tribunal for failing to impose sanctions (or for granting a
license).Other instances n2 occur
throughout the dissent.The dissenters on page 41 clearly recognize that the
court of appeals ruled that petitioners' allegations, if true, would be serious
and state that the Commission assumed them to be true in 1965 ("and we
believe the record now confirms [italic supplied]"); however, on page 42
the allegations and assumptions which were not proven during the course of the
hearing, become historical facts.
n1 We also point out that the
Commission action of May 19, 1965, was a Memorandum Opinion and Order and not a
"decision" (dissent, pp. 6, 24).The Commission action of May 26,
1966, was an Order and not a "decision" (dissent, pp. 7, 16).The
dissent, at p. 8, refers to the Commission's "earlier decisions" but
the only decision rendered by the Commission thus far, is the one dissented from.At
p. 12 of the dissent, aside from the aspersions cast upon the judicial
techniques of the court of appeals, the fact remains that no "decision of
a subordinate agency," erroneous or otherwise, has been adopted by that
court.
n2 E.g., "facts adduced at
the hearing and in previous complaints [italic supplied]", dissent, p.
4.Page 25 of the dissent remarks "the Commission considered each of these
incidents as serious fairness violations" but fails to note that such
consideration was on demurrer.Page 28 of the dissent notes that WLBT had been
warned "that its zeal for suppressing the views of its political opponents
was sharply at odds with the law" but again assumes that such were proven
-- not merely alleged.
III.The Burden of Proof
We agree with our dissenting colleagues as to which parties in this case were
assigned the burden of proof with respect to which issues.However, we differ
profoundly as to the meaning of the term, "burden of proof." Suffice
to say that we consider neither the burden of going forward with the evidence
nor the burden of non-persuasion to be discharged by the party on whom it may
fall by the simple making of charges and/or allegations.To employ a reduction
ad absurdum, the dissenters apparently would have us require that, since
petitioners had charged that on one occasion a Negro had been mentioned without
a courtesy title, the renewal applicant should then subject the examiner to
watching and listening to 3 days, or even months or years of audio and video
tapes to disprove the charge? We do not think that the examiner imposed an
impossible or unreasonable burden upon petitioners by requiring them to prove
specific instances of misconduct. There are legal systems in other nations
where the mere making of charges casts upon the respondent the burden of
proving their falsity.We do not believe that such is the time-honored common
law precept, the Anglo-American legal standard, and we decline to adopt it as
our own.
IV.The "Sorry, Cable Trouble" Incident
Worthy of comment in connection with the accuracy of the dissent is, we
believe, the account of the "cable trouble" incident at pages 14-15
thereof. There appears to be little question that a blackout occurred during
the incident described at length in the Initial Decision, finding 75, et
seq.The dissenters state n3 that Dr. King
called the station, asked to speak with "the manager" [dissenters'
quotes], and spoke with some person who refused to identify himself who
"told him that the station had purposefully substituted the cable trouble
sign for the [Jackson incident]." We are referred to footnote 38 for
documentation which cites Tr. 721.We have searched Dr. King's testimony in
vain[*476]for this version of the incident.The Reverend Dr. King testified for the
intervenors (Tr. 720) that the picture disappeared, that he called the station
and the person answering the phone refused to identify himself, that he asked
if the picture was cut off because it dealt with Jackson and that the
person said, "Yes." During Broadcast Bureau counsel's
cross-examination of Dr. King, the clergyman testified: "I think it said
'Sorry, Cable Trouble' * * *." The dissenters assertion that Dr. King
asked to speak to "the manager" and that the unidentified person told
him "that the station had purposefully substituted the cable trouble sign
for the [Jackson incident]" does not appear to have been the sworn
testimony in this case and it is most assuredly not from Tr. 721 cited in
footnote 38.
n3 We assume for our discussion
here that the stricken portion of the record (Tr. 721) had not been so treated.
V."The Little Rock Crisis" Matter
The accuracy of the dissent is questionable, when at page 19 the dissenters
castigate the majority's conclusion that the charge concerning the "Little
Rock Crisis" program was not substantiated.The dissenters state at page 19
that Governor Coleman, Senator Eastland, and Congressman John Bell Williams
presented their views of the disturbance, "testimony of church witnesses
alleged that the officials uniformly backed segregation and blamed the outbreak
of violence on the Little Rock Negroes * * * [and that] * * * this testimony
was not contradicted." The dissent cites "See, e.g., Record,
677-679." The cited material does not support the dissenters version of
the incident.From the record we find only that the witness saw the named
persons on a discussion program about Little Rock, that there were no
Negroes, no persons to represent the Negro viewpoint, no persons who favored
"segregation" [sic], and no persons who favored obeying Federal
courts.n4 Even were we to include intervenors
exhibit 104 for proof of the matters recited therein (and we did not) n5, there is no basis whatsoever for the statement of
the dissenting Commissioners about the participants in the program blaming
the Little Rock violence on Negroes.
n4 While the characterization of
the viewpoints of the panelists was stricken, we shall consider it reinstated
for the purpose of this discussion.
n5 We accepted this exhibit only
for the purpose of showing that WLBT had been notified of complaints, and not
for the truth of the matters asserted therein -- Commission Decision, par. 12.
VI.Summary
of Testimony of Intervenors' Witnesses Re the Citizens Council Forum
We were concerned by the dissenters' statement n6 criticizing the examiner's acceptance of the
testimony of WLBT's Fred Beard that the carriage of the White Citizens Council
forum was not designed to promote segregationist views despite "the
contrary testimony of church witnesses (and in preference to general knowledge
and the declared objectives of the White Citizens Council movement in
the Deep South). n40" Footnote 40 is merely a reference to the
Initial Decision findings complained of and is not a citation of the church's
witnesses[*477] and the declared objectives of the White Citizens
Council.Nevertheless, we reviewed the church's proposed findings and
conclusions on this point in order to weigh the dissenters' criticism of the
examiner's "preference" for Beard's testimony.n7 Proposed finding 53 would have had the examiner
find, "[Fred Beard] reaffirmed his approval of that organization * * * the
primary purpose of which was described as '* * * to maintain segregation in
every possible way in Mississippi' * * *" What the church's proposed
findings omitted, however, was the fact that the purpose was described, not by
Fred Beard as might appear from the proposed finding, but by the president of
Tougaloo College.Proposed finding 54 quoted "WLBT's expert witness, Mrs. Hazel
Brannon Smith [italic supplied]," but omitted the fact that she had been
conceded "expert" for the purpose of answering only one
question n8 unrelated to the Citizens Council
programs.Mrs. Smith, in her characterization of the Citizens Council, testified
as a non-expert:
n6 Dissent, p. 15.
n7 Intervenors' Proposed Findings
and Conclusions, 53-56.
n8 Tr. 1244/22-1245/11.
* * * the line of the White Citizens Council which promised the people of Mississippi
you don't have to integrate and just say you wouldn't integrate and you don't
have to integrate.That was the line put out by the Council.That was the line
heard on the Citizens Council program on WLBT * * *.n9
n9 Tr. 1253.
This,
then, appears to be the sum total of the testimony of "church witnesses *
* * general knowledge * * * and declared objectives of the White Citizens
Council."
To the contrary was the sworn testimony of Fred Beard concerning the Citizens
Council and the station policy in refusing to carry segregation/integration
programs on the council's behalf.The testimony of Beard outweighed the contrary
testimony and the examiner's finding and the Commission's affirmance was
reasonable and proper.
VII.The
Dissenters "Findings" of Misrepresentations by the Licensee
In our majority opinion we concurred in the examiner's conclusion, "that
there is no evidence in the record which would indicate that WLBT has
misrepresented either to the public or to us its programming on the issue of
racial discrimination or that it has acted in bad faith respecting the
presentation of such programming." We affirm that conclusion.Each of the
supposed specific incidents of misrepresentation raised in the dissent (pp.
37-41) will be considered, in the order in which they are presented therein,
and will be shown to be unfounded.
In regard to WLBT's alleged misrepresentation in its communication to the
Commission regarding its 1957 program, the "Little Rock Crisis," the
record before us indicates that on December 8, 1955 (intervenors' exhibit 102),
WLBT by letter represented to the Commission that while "equal time has
always been made available to both sides of any controversial issue, * * * with
reference to NAACP from a local and national level and the White Citizens
Council and other prosegregation groups, we have not sold or permitted and
group to appear on our * * * television station." We construe this letter
as[*478]pertaining to the station's policy not to provide time to either the
NAACP or the Citizens Council for the presentation of the racial issue, and not
as a representation that the station "did not permit the issue of racial
integration to be aired at all." Subsequently, by letter dated July 17,
1958 (intervenors' exhibit 109), to which the dissent apparently refers, WLBT
stated that it was its "policy to present both sides of any and all
controversial issues within the limitations as prescribed by your rules."
We find no indication therein, as claimed in the dissent, that WLBT asserted in
1955 that it was not its policy to air the racial integration issue or that it
repeated such an assertion in 1958.The dissenters do not cite where this
supposed representation was repeated in 1963.n10 Insofar as the 1957 "Little Rock" program, which the dissent
characterizes as a violation of WLBT's alleged representation of its
programming policy not to air the racial issue, is concerned, the station
clearly stated to us at that time (1957) that it "did not consider the
matters presented as being controversial but a report from our duly elected
officials to the people of Mississippi," and that "if we are wrong in
regarding these reports by our duly elected officials of the State as being
non-controversial, we would appreciate your advising us, since it is our
purpose at all times to adhere to the rules of the Commission"
(intervenors' exhibit 109).We have found no evidence of misrepresentation of
its supposed past policy in its presentation of the Little Rock program,
or in its communication to us regarding the program.
n10 We assume, however, that they
refer to WLBT's statement contained in its letter of Oct. 29, 1963 (stipulation
1, No. 17), that it is not the station's policy "to present local programs
dealing with segregation [italic supplied] * * *." As we read this letter,
we believe the extent of that representation was limited to full and complete
programs (as opposed to spot announcements or editorials) and that WLBT did not
represent therein, as claimed in the dissent, that "it did not, as a
matter of policy, permit the issue of racial integration to be aired at all."
Our examination of the second incident of alleged misrepresentation discussed
by the dissent, pertaining to the Reverend Robert L.T. Smith's 1962 political
campaign, leads us to a similar conclusion.It is true that WLBT wrote to the
Commission on February 1, 1962, that it had not refused to sell Mr. Smith time
(stipulation 1, No. 4).The examiner's findings, fully supported by the record
and adopted by us, were that while the Reverend Mr. Smith's specific time
request was refused, n11 he was
offered time during the 2 months immediately before the election and spot
announcements during January 1962 (Initial Decision, finding 65).Our colleagues
next cite an April 20, 1962, letter from WLBT which seemingly contradicts the
representation made in its previous letter by stating "our decision not to
sell time * * *" (stipulation 1, No. 11).On the face of these two letters
there appears to be a misrepresentation to the Commission if one assumes that
the same "decision" is referred to.However, the dissent has
conveniently overlooked stipulation 1, items 5 through 10 which chronologically
detail the correspondence on this matter and which clearly demonstrate that
while WLBT originally stated in its letter of February 1, 1962 (stipulation 1,
No. 4), that it had offered time to the Reverend Mr. Smith, it subsequently
withdrew that offer and promptly notified the Commission of this fact by letter
dated April[*479]12, 1962 (stipulation 1, No. 8).The April 12, 1962, letter
reversing its previous decision to sell time is the "decision not to sell
time" referred to in WLBT's April 20 letter cited by the dissent, and, in
fact there were no contradictory statements to the Commission.The examiner's findings,
adopted by us, were complete on this matter and there was no element of
misrepresentation in this series of communications.
n11 Reasons were, inter alia, that
his request was made only two days in advance and would have necessarily
preempted one-half of a popular national program, stipulation 1, No. 4.
The third supposed incident of misrepresentation to the Commission which the
dissent mentions is a clear misunderstanding of the record by the dissenters.
WLBT represented to Commission investigators that editorializing ceased on
September 21, 1962, but that programming logs for subsequent days indicate that
editorials were in fact programmed (intervenors' exhibit 31).However, the
examiner found that no editorials were actually broadcast, and noted a conflict
in the record (Initial Decision finding 93).n12
Not only did Beard testify, as the dissent states, that the logs were in error
but he also categorically denied that any editorials were broadcast.He stated:
"I can assure you that no editorials were run.You have not found any
editorials, nobody has heard any" (Tr. 846).We believe that the examiner
made a correct finding concerning the editorials in question (since no witness
testified that they were broadcast and since intervenors' exhibit 31, the only
evidence that the editorials were broadcast, was brought into serious question
at the hearing.(See Tr. 846-847; 1459-1463)).n13 Accordingly, we had no reasonable basis on which to predicate a
conclusion that WLBT had misrepresented cessation of editorial broadcasting
after September 21, 1962.
n12 The examiner pointed out that
during this period there was "considerable confusion at this station
because there were more than 75 visiting television newsmen using the facilities
of WLBT to send stories * * *;" that foreign newsmen used the facilities
to send stories abroad; that this outside activity was in addition to WLBT's
activity; and "WLBT had only one control room * * *."
n13 "Business records"
carry only a rebuttable presumption of accuracy which must fall before sworn,
and uncontroverted countervailing testimony.
Similarly, the fourth incident of claimed misrepresentation raised by the
dissent misreads the record.The Commission's letter of July 25, 1963 (stipulation
1, No. 16), invited comment by WLBT on many matters raised by the Commission's
investigation.WLBT replied on October 29, 1963 (stipulation 1, No. 17), to the
questions raised by the Commission regarding the "Comment" program
(pp. 18 through 24, of the WLBT reply), WLBT's editorializing policy (pp. 12
through 17, Oct. 29, 1963, letter), and the Citizens Council spot announcements
(pp. 17 through 18 of the WLBT reply).In the passage of the reply quoted in the
dissent (text at footnote 107), WLBT was not referring to the three previously
listed items, to which WLBT had devoted considerable attention in other parts
of the same letter, but was referring only to WLBT's policy regarding
"local programs" (as contrasted to separate and distinctly enumerated
policies for editorials, for spot announcements, and for the "Comment
" program).The dissent attempts to link together and analogize separate
statements to construct a misrepresentation which is unwarranted and in
derogation of the clear text of the record.
We believe that the alleged misrepresentation in WLBT's 1964 renewal
application may be clarified by quoting verbatim the record which purports to
show the misrepresentation.In its 1964 renewal[*480]application, WLBT stated,
in discussing its controversial issue programming:
"Today in Jackson" also presents material from time to time that
can be, or is, considered controversial by some groups.When this occurs every
effort is made to ascertain that the opposing group [italic supplied] is notified
and understands that if they do disagree, equal time will be granted so that
they might reply in like kind (Lamar application to renew license, exhibit No.
5, policy on public issues). When compared with the hearing transcript cited by
the dissent to demonstrate the misrepresentation, we can find no
misrepresentation because the matter in the hearing transcript pertains to an
entirely different subject.Mr. Miller, counsel for Lamar, stated regarding
editorials:
Mr. Examiner, I think Mr. Moore misconceives the law on the subject, because
obviously, as Mr. Kehoe points out, it would be an impossibility for a station
to advise and invite members of the public individually.[Italic supplied.] They
don't even know which ones specifically may agree or disagree with them.
The point, as I understand it, when you editorialize you may state from time to
time -- you identify it as an editorial and you may have a policy to make time
available for opposing viewpoints * * *" (Tr. 374-75). The dissenters take
a statement of counsel regarding the general subject of editorializing and the
duties of a licensee thereon and equate it with a statement regarding the
"Today in Jackson" program, an entirely
different matter, to arrive at a misrepresentation to the Commission.
The last purported incident of "WLBT's willingness to mislead the
Commission" involved no element of misrepresentation whatsoever.As
recognized by Commissioner Cox in his 1965 dissent to the transfer of control
(1 FCC 2d 1484, 6 R.R. 2d 308), the full details of the option arrangement
between Lamar Life Insurance Co. and the stockholders of Lamar Life
Broadcasting Co., and of the loans between the two entities were fully
disclosed to the Commission.
The purported incidents of misrepresentation to the public referred to in the
dissent at pages 39-40 are also unsupportable and unreasonable.The dissent
raises examples of WLBT's purported misrepresentation to the public on the
racial issue and "bad faith reportage by WLBT in its news coverage of
highly controversial issues." The cited examples merit further
scrutiny.With regard to the discrepancy between WLBT's news coverage of one
incident in a civil rights demonstration (concerning the alleged beating of a
demonstrator by police) and what actually transpired in that one incident, the
facts disclosed may not reasonably be construed as a misrepresentation to the
public on the racial issue or as evidence of bad faith in the station's
presentation of the news.Granting accuracy of Dr. King's testimony, we consider
this incident as evidence that the news coverage may not have been completely
accurate at all times, and that some inaccuracy certainly is understandable
during this unsettled period in Mississippi.
The dissent cites as another bad faith misrepresentation the fact that a WLBT
news program stated "that Mrs. King had been arrested for public cursing
and disorderly conduct, when, in fact, Mrs. King[*481] had not been arrested
and was not even at the scene of the demonstration."
Dr. King's testimony was as follows:
A.There was a summary [over WLBT]
of the demonstration.There were pictures of Tougaloo students and others,
probably 100 or 200, probably 100 demonstrators, the police * * * loading them
onto the trucks and then there was a statement that some of the bystanders were
also arrested.
These people included Mrs. Janet
King, who was arrested for disorderly conduct and cursing policemen.
Q.Would you identify her?
A.Mrs. Janet King was my wife.
Q.Was she there that afternoon?
A.She was inside the house
[immediately adjacent to where the demonstration took place and where many
bystanders were].She was not arrested * * *.
The only white woman who was arrested was Miss Lois Chaffee who was accused of
public cursing.I assume that this is what they meant by naming my wife (Tr.
713-14).
Mrs.
King, contrary to what the dissent states, was at the scene of the
demonstration, where another white woman was arrested.Thus, a misidentification
of a party arrested, explainable in light of the confusion of the day, becomes
for the dissenters a bad faith misrepresentation on the racial issue.n14
n14 Cf.Curtis Publishing Co. v.
Butts, 388 U.S. 130 (1967) (The General Walker case.)
The third claimed instance of misrepresentation to the public is also
fallacious.Although Dr. King was not arrested for leading a near riotous
demonstration following Mr. Evers' funeral, he was arrested on that same day,
on the very afternoon that the demonstration occurred, but on a charge
pertaining to an incident two days earlier (Tr. 719).In these circumstances, a
conclusion that WLBT was chargeable with bad faith misrepresentations to the
public on the racial issue would be improper and unfair.
VIII.Applicability
of the Fairness Doctrine to a Possibly Nonpartisan, Non-controversial Program
Paragraph 14 of the majority opinion, which is reproduced on page 19 of the
dissent, is hardly the mystery the dissenters would make
it."Partisan" means "adherent to a party or faction, especially
unreasoningly." n15 Such a
program, if presented by one of our licensees, would, of course, have brought
the fairness doctrine into play, providing the subject, party or faction were
of sufficient importance.We did not find any record support for the contention
that the program in question was "partisan." As to the effect upon
the fairness doctrine of its being a report by elected officials, surely it is
possible to envision a strictly factual report by a city commissioner on
progress in building a sewage disposal plant (not the possibly controversial
question of whether one should be built) which could in no manner activate the
fairness doctrine.Our statement said that if the report had been only (i.e.,
not controversial) a report by elected officials, the doctrine would not come
into play.n16 But if the city commissioner were
to seek to telecast views[*482] of a controversial nature (even
"partisan" ones), his official status would not immunize him from the
fairness doctrine.Telecasts of a partisan nature by public officials are
subject to the fairness doctrine.WLBT did not claim that the telecast was
immunce because it was by elected officials; it claimed that it was immune
because it was by elected officials who were nonpartisan.
n15 "Webster's New Collegiate
Dictionary," second edition, Cambridge,Mass., 1949.
n16 Consider, for example, the
recent appearance of Commissioner Washington (an appointed official) in Washington,D.C., urging all citizens of the District of Columbia to obey the curfew.Would the dissenters
have the stations seek out and telecast a person urging rioters, arsonists, and
looters to remain on the streets in defiance of Commissioner Washington?
The question of whether the program was partisan or controversial was never
resolved despite our providing a forum in which it might have been aired.The
intervenors might have stated plainly to the examiner through a witness (who
claimed to have seen and heard the telecast) what was said to the best of his
recollection.Instead, all the intervenors offered was testimony as to who was
not on the panel via a witness's characterization -- a characterization which
was quire properly stricken.
IX.Inconsistency
Between Our 1965 Short-Term Renewal and Our Present Action
Contrary to the assertion at page 3 of the dissent there is no inconsistency
between our short-term renewal upon conditions in 1965 and our present action.
The dissenters recitation that we "found WLBT's performance sufficiently
disturbing" in 1965 is erroneous.We found the charges sufficiently
disturbing to warrant our 1965 action.A Government agency makes no finding of
guilt when, as a result of complaints, it determines to scrutinize with more
than routine attention the activities of an entity subject to its regulatory
jurisdiction. The agency may even go so far as to communicate the complaints to
the alleged offender and tell it, in effect, that it will be inspected in 1
year (as we told WLBT).At that time if nothing be wrong the alleged offender
has nothing to fear.If, in 1965 at the time of the short-term renewal WLBT had
been complying with all of the conditions we laid down (and we had only
unproved and essentially controverted allegations and charges that it was not),
we would have imposed no additional burden and made no finding.
X.The Effect of Pre-1964 Versus Post-1964 WLBT Programming
The dissenters' concern with the weight and relevance of pre-1964 and post-1964
programming n17 looms too large in their
reasoning.If, by the quotation n18 from the
Initial Decision, conclusion 1, "the renewal period is June 1, 1964, to
May 31, 1967," the dissenters mean to establish that the examiner (whose
hearing began on May 1, 1967) thought he was to consider only 1964-67
programming, we can only dismiss the contention as farfetched.The examiner's
sentence next following that quoted shows that he clearly recognized the
renewal application was filed on March 3, 1964, and a license in future for
1964-67 was under consideration.The exigencies of the hearing process
regrettably delayed the start of the hearing until almost the expiration of the
normal license period.
n17 Dissent, p. 5, et seq.
n18 Dissent, p. 7.
[*483]Finally, we agree with our colleagues that the court declined to pass
upon the relevance of post-1964 performance, n19 but we disagree with the contention that we
transgressed a standard which was never established.
n19 Dissent, p. 5.
XI.The Freedom Bookstore Matter
The dissenters have charged that evidentiary testimony was offered on numerous
instances by witnesses for the intervenors with respect to the Freedom
Bookstore and that the examiner rejected such testimony.Our conclusion with
respect to the Freedom Bookstore was that there was no probative evidence as to
the anti-civil rights prosegregation nature of the organization.But assuming
the prosegregation nature was proven in the hearing, we believed that the
carriage of announcements recommending and endorsing the purposes of the
bookstore would have constituted a violation of the fairness doctrine.In this
vein, we carefully examined the record citations the intervenors cited in their
exception 143 as rulings excluding the introduction of such evidence.
The intervenors' exception to the examiner's ruling at Tr. 435 pertained to the
examiner's rejection of intervenors' exhibit 18.We reviewed this exhibit,
although we believed it was properly rejected, n20 and found it completely lacking in probative value
as to the nature of the bookstore.Our further review of the record indicated
that Dr. Beittel neither testified nor attempted to testify directly on the
subject of the Freedom Bookstore.The dissent errs when it states that "the
examiner rejected his attempt to testify about the bookstore" (dissent, p.
22, text at footnote 55).n21 Accordingly, our evaluation of the
record indicated that no probative evidence regarding the Freedom Bookstore was
even offered by the intervenors at this point in the hearing.
n20 The exhibit was rejected, not
because it partially pertained to the Freedom Bookstore but because "the
matters that Mr. Moore seeks to put into evidence can be brought in if he so
desires by competent testimony.He can bring witnesses in here to testify about
the spot announcements but a generalization like this embodies too much hearsay
and the document will not be received" (Tr. 435).
n21 Dr. Beittel only attempted to
testify about the Citizens Council which he did not attempt to link to the
Freedom Bookstore.Indeed, the only reference to the nature of the bookstore is
a conclusionary statement of counsel for the intervenors, not testimony because
he was not under oath (see also Canon 19, ABA Canons of Ethics) to the effect
that evidence of the Freedom Bookstore was material because it was "a
bookstore which represents an extreme rightwing point of view" (Tr. 434).
Mr. McRaney was questioned about the bookstore and such questioning was ruled
improper (Tr. 1402).But we found no offer of proof therein as to what Mr.
McRaney would have testified and upon which we could base a conclusion that he
should have been allowed to testify.The testimony at Tr. 1605 pertains to the
introduction of intervenors' exhibit 49 (to the rejection of which the
intervenors failed to except) and which our examination revealed was not
probative of the nature of the bookstore or the nature of the announcements
made for the bookstore.Nor was the testimony of the witness at Tr. 1605.The
examiner's ruling at Tr. 1615-1616 rejected intervenors' exhibit 50, which we
considered in reaching our decision and which we found was not probative of
anything other than that announcements were made for the bookstore.
[*484]Thus, we determined that the examiner's rulings to which exceptions were
taken in three instances did not preclude the introduction of any meaningful
evidence into the record.In light of this, and after careful examination of the
record citations in the intervenors' exception 143 pertaining to the Freedom
Bookstore, we could reach no conclusion other than that there was no evidence
as to the alleged anti-civil rights, prosegregation character of the bookstore.
CONCLUSION
The more we study the voluminous record in this case, the greater our certainty
and conviction of the propriety of our conclusion that the WLBT renewal
application should be granted.WLBT has not been shown by this extensive record
to have violated the Commission's and the public's trust.The dissent does not
withstand reasoned analysis.To deny renewal of this license on the basis of the
dissent, stripped of its inaccuracies, errors, and misinterpretations, would
indeed have been a gross miscarriage of justice and an abuse of agency
discretion.
[In re application of Lamar Life
Broadcasting Co.; docket No. 16663]
STATEMENT BY COMMISSIONER ROBERT T. BARTLEY
I concurred in the result of this Decision.
The nature of the Dissenting Opinion is such that I feel compelled to add my
personal comments on it.
The Dissenting Opinion, stripped of its vituperations and self-serving
characterizations, adds up to one thing: The dissenters try to build a case on
bare and unsupported allegations by the intervenors and, then, appear to
question the motives of the Commission majority because they did not succumb to
the same error.
This case boils down to the following essentials: The intervenors made
allegations against WLBT-TV and requested that its license not be renewed.An
evidentiary hearing was held in which the intervenors were offered an
opportunity to substantiate their allegations.The hearing examiner held that
the intervenors failed to substantiate their allegations.The Broadcast Bureau,
which was a party to the proceeding, also found that the intervenors failed to
substantiate their allegations.The Commission majority found that the intervenors
failed to substantiate their allegations.
Thus, the allegations, if true, might well have been grounds for denying the
renewal.However, the allegations were not substantiated, were not considered
true, and were not, therefore, grounds for denying the renewal as requested by
the intervenors.
FURTHER STATEMENT OF COMMISSIONERS
KENNETH A. COX AND NICHOLAS JOHNSON
The
majority has issued a further statement making various criticisms of our
dissenting opinion in the WLBT case.We do not wish to prolong the Commission's
public dispute about a matter that would[*485]most appropriately have been
disposed of in our original opinions -- exchanged sufficiently in advance of
release to make response and revision possible at that time. Nonetheless, we
cannot let this further statement go without some explanation.
The short of the matter is that we find nothing in these new criticisms which
alters our grave dissatisfaction with the Commission's procedures and results
in this case. Nor is there anything in the majority's new exposition of its
position which changes our conclusion: That the Commission in this case has
renewed the license of a station which systematically suppressed the expression
of integrationist views, which systematically ignored the 47 percent of the
population of its coverage area who happen to be black, and which made numerous
misrepresentations to the Commission and to the public about these improper
policies.
The court has already called for the record on its own motion and will ultimately
resolve the law of this case without the need for further comment by us.* To
the extent new matters raised in the majority's "further statement"
warrant our response as to factual disputes, we have prepared an analytical
appendix to be included in the printed report of these opinions.
* The court of appeals retained jurisdiction in this matter subsequent to the
1965 appeal by petitioners. Office of Communication of United Church of Christ v. FCC, 359 F. 2d 994 (D.C. Cir.
1966).
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