Docket No. 18303 File No. BAL-6343
FEDERAL COMMUNICATIONS COMMISSION
18 F.C.C.2d 412 (1969)
RELEASE-NUMBER: FCC 69-644
June 11, 1969 Adopted
NICHOLAS JOHNSON FOR THE COMMISSION: CHAIRMAN HYDE CONCURRING IN THE RESULT;
COMMISSIONER ROBERT E. LEE DISSENTING AND ISSUING A STATEMENT; COMMISSIONER
This proceeding concerns the application of the city of
(1). To determine whether The McLendon Corp., directly, or indirectly through its predecessors, affiliated corporations, or subsidiary corporations, has engaged in trafficking in broadcast authorizations; and
(2). To determine
whether the proposed program plans of The McLendon Corp., are realistically
designed to meet the needs of
2. A prehearing conference was held on September 30, 1968, before Hearing Examiner David I. Kraushaar. Hearing sessions were held on October 30 and 31, and November 4, 6, and 8, 1968. The record was first closed on November 8, 1968. By Order (F.C.C. 68M-1528, released Nov. 15, 1968), the record was reopened on petition by The McLendon Corp. solely for receipt into evidence of "WCAM Ex. 1-A" and was immediately again closed. Proposed findings of fact [*413] and conclusions of law were filed by the Chief, Broadcast Bureau and The McLendon Corp., n1 and each filed a reply.
n1 The McLendon Corp.'s proposed
findings stated that the city of
3. In an initial decision, F.C.C. 69D-1, released January 7, 1969, the hearing examiner resolved both hearing issues in favor of The McLendon Corp., and recommended grant of consent to the assignment. No exceptions were filed to the initial decision.
However, by order released February 24, 1969 (F.C.C. 69-150), we stayed on our own motion the effectiveness of the initial decision pending review, provided for the filing of briefs and reply briefs, and scheduled oral argument for May 5, 1969. The oral argument was later rescheduled for March 10, 1969 (F.C.C. 69-196) and the invitation to file briefs was withdrawn in light of a pleading filed by the city of Camden asking either rescission of the order requiring argument and briefs or advancement of argument to the earliest possible date because of the need of the city to know, for budgetary reasons, whether the assignment would be approved. Oral argument was held on March 10, 1969, with all parties participating. Thereafter, we announced our intention to deny the application, stating that the document embodying the action would be released at the earliest practicable date.
4. We have carefully considered the hearing
record, the examiner's findings and conclusions and the proposed findings and
conclusions of the parties. We disagree
in a number of respects with both examiner's findings and conclusions. We also believe that the examiner has failed
to make certain pertinent findings. We
therefore regard it as desirable to set forth herein a complete statement of
facts that we deem material. While our
decision incorporates a number of the examiner's findings it deletes some,
revises others and adds further findings in areas which we deem
significant. In this connection for
reasons set forth, infra, we are of the view that The McLendon Corp., has
failed to establish that its proposed programming is realistically designed for
n2 The population figures are according to the 1960 census.
n3 County and city data book 526 (1962).
n4 Camden's mayor believed that the programming needs of the Camden area could not be adequately fulfilled by continued municipal operation of WCAM, since municipal ownership made it difficult for the station to speak out on public issues -- an important consideration for Camden with only one local newspaper and one other local station.
6. The city entered into a contract in 1967 to
transfer the station to L & P Broadcasters. As part of the sales arrangement, the proposed buyer made a
downpayment of $650,000 to the city.
Due to objections filed by a
7. The principals of the McLendon Corp., are
Gordon McLendon and his father, B. R. McLendon (the McLendons). They entered broadcasting in 1947 and have
in the past 22 years acquired or built some 24 broadcast stations and disposed
of 12 of them. n5 In the spring of 1967 the McLendons
negotiated for the purchase of station WIFI (FM),
n5 The facilities now held are: KLIF (AM and FM) and KLIF-TV (not yet built), Dallas, Tex.; KABL (AM), Oakland and KABL (FM), San Francisco, Calif.; WYSL (AM and FM), Buffalo, N.Y.; WNUS (AM and FM), Chicago, Ill.; KOST (FM), Los Angeles, Calif.; WWWW (FM), Detroit, Mich.; KCND-TV, Pembina, N. Dak.
n6 This application was later dismissed when the seller exercised his right to terminate the contract.
8. The McLendons' reason for purchase of WCAM
as disclosed by the record is as follows.
It has been the McLendons' objective over the years to upgrade their
broadcast facilities by disposing of those in smaller markets for others in larger
markets. They considered the
acquisition of WCAM to be consistent with that objective because it would put
them in the
[*415] Programming preparation
9. To ascertain the programming needs of the
public served by station WCAM, the McLendons employed Melvin Gollub, the owner
and general manager of station WIFI (FM),
10. Gollub's survey, made approximately 2 months
after he was retained, was conducted in accordance with guidelines set out in a
letter from the McLendons'
n7 Those interviewed were: The mayor of Camden; a former Camden City attorney now in private law practice; Camden's director of public safety; Camden's director of public works who was formerly city purchasing agent; the president of an electronics corporation; the president of a drug-distributing firm in Philadelphia; the owner of a Philadelphia advertising agency; the president of the Camden Business Improvement Association; the senior vice president of a Camden bank; the Camden City attorney; the public relations director, Roman Catholic Diocese of Camden; a Camden businessman; the executive secretary, Greater Camden Council of Churches; a Camden County freeholder; the city of Camden purchasing agent, who was formerly a Camden City councilman; the Camden City clerk; the public relations director for a Camden bank; a former city councilman, who is head of the city's Human Relations Commission and a leader of the city's Negro community; a physician affiliated with a Pennsylvanian hospital; and the head of a public relations firm.
11. In conducting his survey, Gollub utilized a tape recorder for each interview after obtaining prior permission to visit with each person interviewed in order to discuss future programming plans for station WCAM. Each interviewee was questioned concerning his general thinking about radio in the area, what station WCAM should do in order to serve the public, and his specific program preferences. The interviews were conducted in the form of casual conversation, each involved a couple of hours of work at least, and total interviewing was spread out over several weeks' time. Gollub then made notes from the tapes and erased the tapes.
12. Gollub's survey was not intended to be
either scientific, like a Gallup or Harris poll, or to be comprehensive,
although Gollub considered it more comprehensive than any he had made in support
of his renewal of license applications for station WIFI. At no time was Gollub requested to do any
research on the demographic composition of the city of
13. In addition to Gollub's survey, Gordon
McLendon listened to approximately 10 stations in
n8 Camden's mayor testified that he made an effort to ascertain from the McLendons the programming they would propose for station WCAM, that he had expressed to them what he conceived the needs of Camden to be; that he found them most receptive to the concept of providing local coverage to the Camden area; and that he was assured by them that they would do an even better job than WCAM is now doing in making time available to Camden area civic organizations.
14. The results of Gollub's interviews indicated
a marked interest and need on the part of
n9 The other three interviewees
15. The programming proposed by the McLendons
for WCAM is based upon Gordon McLendon's analysis of Gollub's summaries of the
interviews he conducted, the McLendons' general broadcasting experience, and
the impressions Gordon McLendon received on trips to
16. Gordon McLendon, who has primary
responsibility for the operating management of the McLendon stations and
particularly the programming, testified that the McLendons intend to program
WCAM so as to act in every respect as a local transmission facility; that while
WCAM would not ignore any portion of its service area and would serve all
portions thereof, it fully intended to recognize Camden as its primary service
area and would not slight, overlook, or downgrade programming designed to
fulfill these needs. n10 Inquiry was made as to the manner
in which station WCAM would be identified, inasmuch as a similar question had
been presented with respect to the McLendons' Oakland, Calif., station in KABL,
Inc., 5 F.C.C. 2d 855, 8 R.R. 2d 1187. The identification now used by that
station is: "This is KABL,
n10 The McLendons propose to keep abreast
of Camden's programming needs while continuing their residence in Dallas, Tex.,
by having frequent tapes made and forwarded to them of the broadcasts of
station WCAM and competing stations, and by having weekly reports submitted to
them by their WCAM program director and station manager. Also, Gordon McLendon devotes a minimum of
95 percent of his working time to the McLendons' broadcast interests and he
plans to visit the
Proposed programming of WCAM compared with present programming
17. The programming proposed by the McLendons differs in substantial respects from the programming now presented by WCAM. The McLendons would operate WCAM continuously (168 hours a week) devoting 5-6 percent (8:25 hours) n11 of the broadcast time per week to news; 4-5 percent (6:50 hours) to public affairs, and 1 percent (1:30 hours) per week to other types of programming excluding sports and entertainment. WCAM now operates 146 hours per week and devotes 9.1 percent (13:19 hours) of the broadcast time per week to news, 7.5 percent (10:58 hours) to public affairs, and 7.8 percent (11:24 hours) to other types of programming excluding sports and entertainment. The McLendons propose to devote 65 percent of the total weekly news time to national news, and 35 percent of such time to regional, State, and local news, with 15 percent thereof (less than 1/2 hour weekly) devoted to local news. WCAM now devotes 4.5 percent (3 hours) of its broadcast time to local news. While WCAM now devotes 51-55 percent of its broadcast day to entertainment programming and 15 percent to Spanish, [*418] Italian, and Greek programming, the McLendons do not propose any ethnic programming. The maximum commercial content of existing WCAM is 9 percent of the hours in the time segment 6 a.m. to 6 p.m. and 9.1 percent of all hours in the 24-hour day; whereas the McLendons propose maximum commercial content of 30 percent of the hours between 6 a.m. and 6 p.m. and 25 percent of all hours.
n11 As used herein the symbol " : hours" means hours and minutes; e.g., "8:25 hours" means 8 hours and 25 minutes.
18. Gordon McLendon proposes to decrease the
amount of news from that presented by WCAM, even though some interviewees
suggested a need for more local news coverage, because McLendon did not agree
with everything that these interviewees stated, and because he felt, as did
some interviewees, that WKDN (now WTMR) was giving excellent coverage of south
19. The question for determination is whether
the McLendons have sustained their burden of proving that the programming plans
they propose for station WCAM are realistically designed to meet the needs of
20. In a public notice relating to ascertainment of community needs by broadcast applicants, F.C.C. 68-847, released August 22, 1968, 13 R.R. 2d 1903, we reiterated and clarified the four elements of the [*419] showing to be made by broadcast applicants in response to part 1, sections IV-A and IV-B, the programming sections of application forms. These four elements, as we stated them there, are as follows:
(a) Ascertainment of community needs by consultations with community leaders.
(b) A listing of the significant suggestions as to community needs received from consultations with community leaders.
(c) The applicant's evaluation of the relative importance of those suggestions as to community needs and his consideration of them in formulating the station's overall program service.
(d) Relating the program services to the needs of the community as evaluated -- a showing in the application of what programming service is proposed to meet what needs.
Each of these four steps warrants explication.
21. First. -- It has been our longstanding policy that a licensee seek out and be responsive to a community's needs and interests. See Commission En Banc Programming Inquiry, F.C.C. 60-970, 20 R.R. 1901 (1960); Minshall Broadcasting Co., 11 F.C.C. 2d 796 (1968); Suburban Broadcasters, 30 F.C.C. 1021 (1961); Public Notice Relating to Ascertainment of Community Needs by Broadcast Applicants, F.C.C. 68-847, released August 22, 1968, 13 R.R. id 1903; and Sioux Empire Broadcasting Co., F.C.C. 69-218, 16 F.C.C. 2d 995, released March 18, 1969. In Sioux Empire we stated in part:
* * * As early as 1960 we had occasion to indicate that "the principal ingredient of the licensee's obligation to operate his station in the public interest is the diligent, positive, and continuing effort by the licensee to discover and fulfill the tastes, needs, and desires of his community, or service area for broadcast service." Report and Statement of Policy Re: Commission En Banc Programming Inquiry, F.C.C. 60-970, released July 29, 1960, 20 R.R. 1901, 1915 (1960). (Emphasis added.) The importance of this matter was emphasized in our Report and Order of 1965, amending section IV of the broadcast application form, where we stressed that "the Commission has an interest in how the licensee discovers the needs of his community and what he does to meet those needs." 1 F.C.C. 2d 439, 442 (1965). We again stated in our Report and Order, 5 F.C.C. 2d 175, 175 (1966), amending the television application form, that a broadcast applicant must make a "diligent and continuing effort to provide a program schedule designed to serve the needs and interests of the public."
10. The primary purpose of this policy is to guarantee that the programming service will be rooted in the people whom the station is obligated to serve and who will be in a much better position to see that the obligation to them is fulfilled, thus lessening the enforcement burden of the Commission. Public Notice Relating to Ascertainment of Community Needs by Broadcast Applicants, F.C.C. 68-847, released August 22, 1968, 13 R.R. 2d 1903. In that same public notice and in Minshall, supra, we have reiterated the elements that must be shown in support of each program proposal. In line with our longstanding policy, each applicant is now required to show his consultations with community leaders to become informed of the real needs and interests of the area to be served, the suggestions that he received in those consultations as to community needs, and the specific programs that he has proposed to meet particular community needs, as he has evaluated them. n4
n4 While Minshall originally required the application to disclose the applicant's evaluation of the suggestions received, we subsequently determined that such a specific showing was not necessarily required for our consideration of the application. Thus, the public notice merely indicates that the applicant is expected, at least subjectively, to evaluate the relative importance of the suggestions and to consider them in formulating the program proposal, even though a specific showing of such evaluation is no longer required in the application.
* * *
[*420] 22. In referring to the ascertainment of needs and interests, we mean, of course, that the applicant or licensee is expected to elicit information as to the community's needs, problems, and issues, not the audience's current-broadcast programming preferences. n12 He should consult with a representative range of groups, leaders, and individuals in community life -- public officials, education, religious, the entertainment media, agriculture, business, labor, professional and eleemosynary organizations, and others who speak for and embody the interests of the community -- to give him a better basis for determining the total needs of the community. n13 Consultations with group leaders should be used to help determine the needs of the community from the standpoint of the group represented by the leader being consulted. The applicant should indicate, by cross-sectional survey, statistically reliable sampling, or other valid method, that the range of groups, leaders, and individuals consulted is truly representative of the economic, social, political, cultural, and other elements of the community. The consultations should not be designed to develop predetermined answers or to secure approval of existing or preplanned programming, but rather to elicit constructive information concerning community needs. n14 This consideration is of major significance in the case of a multiple broadcast owner, using a standardized format for his broadcast facilities. The purpose of the community needs investigation is not to determine whether there is an audience within the service area for the applicant's or licensee's particular preplanned formula, but to ferret out the needs of the community he proposes to serve and then develop programming responsive thereto. The applicant's efforts to determine needs must be adequately documented in his application (leaders and individuals consulted must be identified by name, position and organization). Sufficient material must be available to establish that a careful investigation of the community was made and that meaningful results were obtained. n15 That an applicant or an interviewer may have had experience in that particular community or generally in broadcasting is insufficient unless such experience is coupled with an adequate survey or investigation of the community conducted along the lines discussed above. n16
n12 Commission En Banc Programming Inquiry, supra, Public Notice Relating to Ascertainment of Community Needs by Broadcast Applicants, supra. Broadcasting Service of Carolina, Inc., F.C.C. 69-104, 16 F.C.C. 2d 591, R.R. 2d .
n13 See Commission En Banc Programming Inquiry, supra; Public Notice Relating to Ascertainment of Community Needs by Broadcast Applicants, supra; Vernon Broadcasting Company, 12 F.C.C. 2d 946, 13 R.R. 2d 245 (1968); Mace Broadcasting Co., F.C.C. 68-671, 13 R.R. id 753 (1968).
n14 Public Notice Relating to Ascertainment of Community Needs by Broadcast Applicants, supra; Viking Television, Inc., 15 F.C.C. 2d 288 (1968).
n15 See Report and Order, 5 F.C.C.
2d 175, 178 (1966), amen49n7 the television application form; Minshall
n16 See Andy Valley Broadcasting System, Inc., 12 F.C.C. 2d 3, 12 R.R. 2d 691 (1968).
23. Second. -- The applicant is expected to list in his application all significant suggestions as to community needs received through consultations with community leaders and individuals, whether or not the applicant proposes to treat them through its programming service. n17 The listing of suggestions as to community needs should include those [*421] that the applicant may have rejected in preparing his program schedule. If but a paucity of suggestions is produced from an investigation, the applicant should reexamine his efforts to determine needs in order to decide whether he has actually approached a representative cross-section of community leaders and individuals, and whether other more imaginative, searching or more precise questioning might produce a more detailed development of actual needs and interests. n18
n17 See Minshall Broadcasting Co., supra, Public Notice Relating to Ascertainment of Needs by Broadcast Applicants, supra. Sundial Broadcasting Co., Inc., 15 F.C.C. 2d 58 (1968).
n18 Virginia Broadcasters, F.C.C. 68-1097, 14 R.R. 2d 738 (1968).
24. Third. -- The applicant is expected to evaluate the relative importance of the suggestions received as to community needs and to consider them in formulating the station's overall program service. As pointed out in Sioux Empire, supra, the applicant need not set forth in the application his evaluation of the community needs found (i.e., why some were chosen to be treated through its programming service, and others were not). However, the applicant is expected to make such a subjective evaluation of those suggestions and to develop programming responsive to the community needs as evaluated. Where the applicant's programming proposals, as contained in step four, do not appear responsive to his ascertainment of community needs, as contained in steps one and two, then the applicant may be asked by letter of inquiry from the Commission to explain fully his step three evaluation by stating the nature and basis of his reasoning process. The matter may also, of course, be fully explored during hearing on the programming issue, or by enlargement of hearing issues.
25. Fourth. -- And finally, the applicant is expected to set forth in his application the programming service that he has developed to meet the needs and interests of the community as he has evaluated them, i.e., what programming service is proposed to meet what particular need. One appropriate way would be to list the programming service and, after it, the particular need which the programming service is being proposed to meet. n19 Clearly the applicant does not have to devote 100 percent of his programming to meeting specific community needs and problems -- such as racial conflict, school building programs, zoning, or environmental pollution. n20 All these can be satisfied with room still left for middle-of-the-road popular music, such as the McLendons here propose, or other entertainment formats. However, some significant proportion of the programming must be responsive to the community needs as determined by the applicant in step one of his survey. n21
n19 Public Notice Relating to Ascertainment of Community Needs by Applicant, supra.
n20 See Commission En Banc Programming Inquiry, supra, 20 R.R. at 1915-16.
n21 Although the extent of this significant proportion may, of course, depend in part upon the number of stations currently serving the community involved and the diversity of their formats, all stations, even in large communities, have an equal and minimal obligation to present some news, public affairs and nonentertainment programming. Stations in larger markets, with specialized audiences, might, for example, be expected to devote some part of their programming and financial resources to community activities of other than a news and public affairs nature, such as a classical or popular music station supporting the development of local instrumental talent used in its broadcast. It does not violate the first amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern. Red Lion Broadcasting Co., Inc. v. F.C.C., 37 U.S.L.W. 4509, 4517 (U.S., June 10, 1969).
26. In addition to, but apart from, the foregoing procedures on ascertaining and fulfilling community needs, the applicant may wish [*422] to survey its listening public as to types of programs which they prefer. Valid sampling methods can, of course, be employed. n22
n22 The latitude a station may
have to specialize substantially in only one type of entertainment programming
format (such as classical music, country and western music, rock music, soul
music, talk and discussion shows, public affairs programs, drama productions,
and so forth), to the exclusion of other kinds of programming formats, may
increase as the number and diversity of stations in its community
increase. Thus, a station in a small
community with no other local broadcast outlets, for example, may have a
greater obligation to cater its entertainment programming to the tastes, needs,
and interests of all segments of the community's population by offering a
balanced and diverse programming format, than a station in a larger market such
as New York or Los Angeles, where individual stations naturally tend to cater
to more specialized interest groups in the population. See Red Lion Broadcasting Co., Inc. v. FCC,
supra note 21, at 4516: It is the right of the public to receive suitable
access to social, political, esthetic, moral, and other ideas and experiences
which is crucial here. (Emphasis
27. The McLendons' efforts to determine
Moreover, few suggestions respecting needs were disclosed in the brief memoranda of interviews prepared by Gollub. Gordon McLendon's efforts were slight, consisting of listening for an unstated number of hours to broadcast stations in the area, without taking notes or monitoring in any formal sense, and of conversations with the Mayor, with the city attorney and Gollub, and with officers of rating services. As we have said, the function of an applicant's survey or investigation of the community and area it proposes to serve is not to secure approval of a preplanned broadcast format, but to find the actual needs of the community. n25 In our judgment a valid basis for the ascertainment of community needs has not been demonstrated.
n23 In a question at oral argument
it was noted that according to the 1960 Census the nonwhite population of
n24 While the views of the municipal officials of the city of Camden are entitled to weight in determining community needs, it is clear that these views cannot here be given the same degree of consideration as those of other completely disinterested parties in view of the city's role in this proceeding as an active advocate urging the proposed assignment of WCAM.
n25 What we propose will not be served by preplanned program format submissions accompanied by complimentary references from local citizens. Commission En Banc Programming Inquiry, supra, 20 R.R. at 1915.
28. The proposed programming reflects the
applicant's lack of depth in determining needs. Station WCAM is one of two standard-broadcast stations in
29. The McLendons propose to operate WCAM 168
hours a week as opposed to the 146 hours a week it is now operated by the city
When an applicant proposes to reduce the news, public affairs, and other nonentertainment programming presently received by a broadcast facility's audience, it must come forward with some strong and substantial showing that these reductions will not harm, but rather accord with the public interest. Listeners and viewers may come to depend upon, and even plan their lives around, the programming offered by broadcast facilities. We have no way of determining from the record, for example, whether and to what extent those portions of Camden's residents with foreign origins or parentage presently rely on WCAM's ethnic and foreign language programming. They may have made decisions where to send their children to school, or even where to live, on the assumption that this kind of programming will continue. In this, the McLendons have scarcely begun to satisfy the compelling burden of proof they must meet in demonstrating that programming reductions in this area accord with the public interest. These unexplained program changes alone are prima facie not in the public interest and require denial of the application.
n26 The McLendons have previously
been admonished for a failure to assess a community's interest in foreign
language programming before deleting it.
See McLendon Corp. (WNUS), F.C.C. 64-1050, 3 R.R. 2d 817 (1964). At oral
argument, counsel for the city of
30. In an explanation of their proposal to downgrade news, the [*424] McLendons suggest that adequate local coverage will be effected by WCAM and the other Camden station (WTMR) even though news is cut back, and that news quality will be improved. However, nothing of substance, much less compelling evidence, has been offered to show how news coverage will be improved or how such improvement, if made, will be adequate to replace the news now provided by WCAM, nor has any clear showing been made of the scope of WTMR's news coverage. Indeed, in the latter connection, even Gordon McLendon believes that a second look may be required regarding WCAM's proposed news coverage because of testimony that WTMR is Philadelphia-oriented.
31. While the McLendons submit that the
particular programming selected is a matter of licensee judgment and that
because of their long experience in broadcasting they are well qualified to
make programming determinations, nonetheless adequate information regarding the
community's needs is required for a valid judgment. n27
From what we have seen of the McLendon's effort to ascertain the
n27 We wish to emphasize that our determination in this proceeding is not an attempt to substitute our judgment for that of the proposed assignee with respect to the community needs and interests to be served by this station. Rather, our purpose here and in other proceedings is to insure that the proposed licensee has in fact adequately ascertained, evaluated and sought to meet the community's needs and interests so that the station will serve the public interest.
n28 In this respect Gordon
McLendon admitted that he purposely rejected the suggestions of those people
who felt that more south
32. We have previously noted that there is a
tendency on the part of stations in suburban communities in metropolitan areas,
which have sufficient power and coverage to serve such areas, to identify
themselves with the entire metropolitan area rather than with the particular
needs of their specified communities.
See Policy Statement on Section 307(b) Considerations for Standard
Broadcast Facilities Involving Suburban Communities, 2 F.C.C. 2d 190, 6 R.R. 2d
1901 (1965). n29
Among other things, revenue sources of a proposed operation are relevant in
determining whether a station will be operated realistically for its specified
community or for the entire metropolitan area.
No clear evidence has been presented here as to the proposed revenue
sources, nor for that matter as to the present revenue sources of WCAM. Gordon McLendon believed no revenue was
derived by WCAM from
n29 Although the 307(b) policy statement does not generally apply to applications for assignment of station licenses, whether a station currently operating as a local transmission facility for a suburban community to which it is assigned will continue to serve that primary function is a pertinent inquiry when an assignment of license application is presented to us. In this connection, the issue concerning the McLendons' programming policy was specifically included to determine whether that proposal is realistically designed for the assigned community or for the nearby, larger community.
33. The McLendons are interested
in acquiring WCAM because there is no full-time station in the
34. Our attention has focused primarily upon the
McLendon application. We should also
comment briefly about the role of the city of
n31 Red Lion Broadcasting Co., Inc. v. FCC, 37 U.S.L.W. 4509, 4516 (U.S., June 10, 1969).
35. Finally, we note that we have not reached the trafficking issue (issue No. 1) because our adverse resolution of the programming issue (issue No. 2) is an independent and disqualifying ground for our refusal to consent to the assignment of license of station WCAM. Our determination not to discuss and resolve issue No. 1 should not be interpreted as either an affirmance or a rejection of the examiner's findings and conclusions on this issue. We merely note that we have grave doubts as to the validity of the examiner's conclusion respecting this matter. See Harriman Broadcasting Company v. FCC, 399 F. 2d 569, 13 R.R. 2d 2073 (CADC 1968); Folkways Broadcasting Company, Inc. v. FCC, 375 F. 2d 299, 8 R.R. 2d 2089 (1967); Harriman Broadcasting Co. (WXXL), 9 F.C.C. 2d 731, 10 R.R. 2d 981 (1967).
36. Accordingly, It is ordered, That the
application of the city of
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING STATEMENT OF COMMISSIONER ROBERT E. LEE
I do not
agree with a literal adherence to the four elements cited by the majority in
paragraph 20 of the decision. The
majority is attempting to set out most elaborate and exacting standards for
program surveys which will apply to all stations -- large and small alike. I believe this will place an onerous burden
on applicants to go through an involved and formalistic survey. I seriously question whether it will
advance, in any way, a meaningful dialog between the station and the community
it serves. I believe the hearing
examiner has properly evaluated the McLendon programming needs of the
It seems to me that an applicant who takes adequate steps to become an expert in his community should not be required to convince the Commission in such detail that their proposed programming does meet the needs developed by the survey. They are the expert and not the Commission.
Finally, I wonder what use the Commission will make of the particular identity of the persons surveyed in the process to make the applicant expert. There are already too many names to too many citizens resting in perpetuity in Government files.