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File No. BRH-1430




24 F.C.C.2d 266




July 7, 1970 Released


Adopted June 24, 1970







 [*266]  1.  The Commission has considered the Petition for Reconsideration, filed on March 20, 1970, by the Jack Straw Memorial Foundation, licensee of station KRAB-FM, Seattle, Washington, seeking reconsideration of the short-term renewal granted KRAB-FM by Commission action of January 21, 1970 (21 FCC 2d 833). We remain of the view that in all the circumstances, it would be appropriate to review the operation of this station at an early date to determine whether it is acting effectively to discharge its own policies.  We have acted here, on this issue of licensee responsibility, based on the particular facts of the case and in order to make clear the importance of licensee responsibility to the industry generally.  We stress that this is the issue, and there is no intent or aim to take any of the improper "chilling" actions claimed by petitioner.  See Notice of Apparent Liability issued to WUHY-FM (FCC 70-346, released April 3, 1970).

2.  We note, however, that there are substantial issues of fact in the circumstances of this case.  Therefore,  [**2]  if petitioner wishes, we shall afford it a hearing on these facts and thus on the ultimate question whether a short-term renewal is called for.  We recognize the difficulty in completing the hearing process prior to the filing of the application for a full renewal (in November 1970).  However, we believe that it is the only appropriate way to proceed in the circumstances.  The statutory scheme permits short-term renewals but at the same time,  [*267]  hearing is appropriate before a sanction is imposed in a situation involving substantial issues of fact (other than in the forfeiture situation where there can be a trial de novo before the court).  Accordingly, we offer the hearing and of course on an expedited basis.  Petitioner shall reply in ten days whether a hearing is requested; if not, the petition for reconsideration shall be deemed denied.








On January 21, 1970, the Commission (Commissioner Cox and I dissenting) issued KRAB-FM a short-term, one-year renewal as a penalty for allegedly violating its own policies.  Jack Straw Memorial Foundation [KRAB-FM], 21 F.C.C. 2d  [**3]  833, 18 P & F Radio Reg. 2d 414 (1970). KRAB-FM has petitioned for reconsideration, asking us to grant it a full-term renewal.  The Columbia Broadcasting System (CBS) has filed an "amicus" petition in support of KRAB-FM's petition, also asking that we grant KRAB-FM a full-term renewal.  The Commission has denied both petitions.  I adhere to the reasons stated in my original opinion, see Jack Straw Memorial Foundation, supra, 21 F.C.C. 2d at 841; see also In re WUHY-FM (Phila., Pa.), FCC 70-346, released April 3, 1970 (Notice of Apparent Liability), and accordingly dissent.

I think it significant that the majority has not addressed any of the arguments advanced in KRAB-FM's Petition for Reconsideration, nor have they attempted even to acknowledge the illuminating and cogent reasoning advanced by CBS.  I believe this avoidance speaks for itself.  The majority clings to the "escape clause" unfortunately used so often by those who are unable to justify their exercise of arbitrary power in intellectual terms: "When unable to reply, do not reply." The majority's silence is commendation enough for the efforts of all petitioners.  I have often urged larger broadcasters to fight for First [**4]  Amendment interests, both before this Commission and in the courts, see e.g., Columbia Broadcasting System (WBBM-TV), 18 F.C.C. 2d 124, 142, 155-56 (1969) (dissenting opinion); United Federation of Teachers [WBAI-FM], 17 F.C.C. 2d 204, 210, 218-19 (1969) (separate opinion), and therefore commend CBS and its counsel for its able and persuasive pleading.  Important battles are often fought in small and seemingly insignificant arenas.  Yet the freedoms of speech and the press will be preserved in this country only by constant vigilance, by  [*268]  the people and the media alike.  Perhaps other broadcasters will realize how importantly their own interests are bound up in this and similar cases, and act with equal courage should this case be taken up on appeal.

As KRAB-FM and CBS point out, the Commission has not even attempted to argue that KRAB-FM has violated any federal statute or Commission rule -- such as 18 U.S.C. 1464, which prohibits the broadcast of "obscene, profane or indecent" language.  Why?  I can only assume that the majority is as aware as everyone else -- including the U.S. Department of Justice -- that no legal case for violation of such a statute exists.  Apparently undaunted,  [**5]  however, by any felt need to operate within a framework of law, the majority persists in meting out punishments nevertheless -- apparently espousing the maxim that "where there's a will, there's a way." In a triumph of will over law, that "way" is found in punishing a licensee, not for a violation of law, but for an alleged violation of internal station policy.  What the majority holds is that if licensees adopt policies which are "stricter" than existing law, then we will enforce those policies as if they were law.  Not only is this a blatantly improper delegation of legal authority; it clearly constitutes illegal "state action" under all the obvious tests See, e.g., Barrows v. Jackson, 346 U.S. 249 (1953); Shelly v. Kraemer, 334 U.S. 1 (1948). This Commission can no more enforce a rule adopted by a licensee in violation of the First Amendment that it can enact one.  I also find the majority's internal logic somewhat puzzling.  The licensee is punished for an alleged violation of its own internal policy.  Clearly, however, if the station had never adopted such a policy, the Commission would have had no reason for a sanction of any kind.  Is the Commission suggesting that stations [**6]  not adopt policies at all?  How would we treat alleged violations of "unwritten" policies, established through patterns of operation?  Must a station now act at its peril in deviating from even unwritten policies in the future, even if it wishes to change its policy; or must that station formally "amend" its policies before broadcast?  Would the majority's collective mind be eased had KRAB-FM rescinded its policy a few minutes before broadcast?  And, if so, would the majority entertain an argument that the broadcast of the program in itself constituted a recession-in-fact of that policy?  As CBS points out, if Mr. Milam had not acted promptly to take the program off the air, the majority would have difficulty finding a contrary to the station's policy.  Is the lesson therefore, that it is better to leave material on the air and later argue it was consistent with the station's internal policy? The point is simply that licensees are left with no guidelines at all in this important area,  [*269]  and this confusion can only "chill" any attempts to present controversial programming.

KRAB-FM's policy eschews "obscenity, obscurantism sensationalism, or simple boorishness." The broadcast was clearly [**7]  not obscene, and the majority has not undertaken to prove that it was -- nor even that it was obscurantist, sensational, or boorish, and for obvious reasons.  I imagine the courts would make short work of any Commission attempt to punish a licensee for "boorish" programming, a standard that might easily eliminate over 90% of most commercial broadcasts.  Again, the Commission's action seems to indicate that a licensee is better off with no policies, lest he be penalized for less than strict adherence -- even though others who have set no goals for themselves could broadcast the same material without penalty.

The critical issue here is the probable chilling effect of the majority's action on licensees who wish to present experimental, innovative or controversial programming.  The majority attempts to alleviate such fears by stressing that the only issue involved is "licensee responsibility," and that "there is no intent to aim or take any of the improper 'chilling' actions claimed by petitioner." Yet actions speak louder than words, and the confusion spread by the majority's inept handiwork will do more to deter timid broadcasters from even feeble attempts at experimentation and innovation [**8]  than the majority's false reassurances can hope to overcome.  Supreme Court Justice Brennan, dissenting in Walker v. City of Birmingham, 388 U.S. 307, 344-45 (1967), explained that to give important speech freedoms "the necessary 'breathing space to survive,' * * * the Court has * * * molded both substantive rights and procedural remedies in the face of varied conflicting interest to conform to our overriding duty to insulate all individuals from the 'chilling effect' upon exercise of First Amendment freedoms generated by vagueness, overbreadth and unbridled discretion to limit their exercise." The Commission majority refuses to heed or even listen.  Acting beyond the restraint of law, it has "unbridled" whatever "discretion" it may have remaining and has let loose a doctrine which seems infinite in its capacity for vagueness and overbreadth.

The seeds planted by the majority in its January 21, 1970 order have already begun to bear fruit.  One announcer was recently fired from a Washington, D.C. station in part because she broadcast a satirical recording containing the word "masturbation." See Quicksilver Times, April 3-13, 1970, p. 5.  Did it violate the station's internal policies?  [**9]  Who knows.  Would it have violated KRAB-FM's? Who knows.  And when in doubt, too many licensees react in typical fashion: cancel the  [*270]  show, fire the announcer, and perhaps the FCC will be forgiving.  This is the stuff of oppression.  This Commission should have no part of it.


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