In Re Applications of THE PACIFIC TELEPHONE AND TELEGRAPH CO. For Construction Permits in the Domestic Public Point to Point Microwave Radio Service To Modify Stations KMN91, KTG30 and KMQ36 at San Jose, Walpert Ridge, and Oakland, Calif.
File Nos. 3710 through 3712-C1-P-70
FEDERAL COMMUNICATIONS COMMISSION
25 F.C.C.2d 445
RELEASE-NUMBER: FCC 70-757
July 22, 1970 Released
Adopted July 15, 1970
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.
[*445] 1. Before the Commission are the above captioned applications filed by the Pacific Telephone and Telegraph Company (PT&T) on December 24, 1969, which propose to add two additional microwave channels, each with a capacity of 1200 voice grade circuits, on existing facilities between San Jose and Oakland, California. In addition are: (1) a "petition for leave to intervene" filed on January 29, 1970 by the Spanish Speaking/Surnamed Political Association, Inc. and California Rural Legal Assistance, Inc. (Spanish Speaking Associations), (2) a "petition for leave to intervene" filed on February 26, 1970 by the Mexican-American Legal Defense & Educational Fund and the Mexican-American Political Association (Mexican-American Associations), (3) an opposition filed on March 23, 1970 by PT&T, (4) a reply filed on April 6, 1970 by Spanish Speaking Associations, and (5) a motion for leave to supplement PT&T's opposition filed on April 23, 1970 by PT&T.
2. Petitioners contend that PT&T does not offer equal employment opportunities and equal opportunities in the use of communications facilities to Spanish surnamed Californians. Therefore, they urge the Commission to withhold the radio authorizations until: (a) PT&T institutes bilingual operator service in San Francisco on a full time basis; and (b) PT&T submits a plan, comparable in scope to the "Philadelphia Plan", to employ 6,000 additional Spanish surnamed persons and to institute a merit promotion system. PT&T denies any discrimination and contends that it has continuously complied with Title VII of the Civil Rights Act of 1964 and Executive Order 11246. PT&T contends that it should not be singled out for any new far reaching action such as the "Philadelphia Plan", but if such action is deemed necessary, it should be applied equally to all [*446] carriers in a general rulemaking proceeding. As to bilingual operators in San Francisco, PT&T urges that we defer to the California Public Utilities Commission since a petition on the matter is now pending before that Commission.
3. The proposed facilities are to be used for additional telephone circuits between San Jose and Oakland at which point they will interconnect with AT&T Long Lines facilities for distribution throughout the United States. In a letter dated May 8, 1970, PT&T states that ten other toll facilities projects in the Oakland-San Jose area are directly dependent upon these radio facilities and that if the commencement of construction is delayed beyond the third week in July, there will be serious, adverse consequences on the quality of toll service at San Jose and construction costs that must necessarily be incurred to meet service obligations.
4. Under these circumstances and in consideration of the fact that the need for the proposed facilities is not challenged, it does not appear that the public interest would be served by delaying action on the applications pending resolution of the matters raised. Moreover, we have proposed rules, which should be finalized shortly, in Docket No. 18742 relative to discrimination by common carriers, 34 F.R. 19200 (December 4, 1969). Since the questions raised here relate more appropriately to overall company policy rather than any particular physical facility, we will consider petitioners' complaints and requests in connection with such rules as adopted. Having found that the construction of the microwave facilities in question will serve the public interest, convenience and necessity and that PT&T is legally, technically, financially and otherwise qualified to construct and operate such facilities, the applications will be granted. However, we wish to emphasize that such action is not intended to reflect on the merits or the importance of the matters raised by petitioners.
5. Accordingly, IT IS ORDERED, that the captioned applications ARE GRANTED, without prejudice to any rulings which may be made as a result of the final resolution of the petitions filed by the Spanish Speaking Associations and the Mexican-American Associations.
6. IT IS FURTHER ORDERED, That PT&T's motion for leave to supplement IS GRANTED.
7. IT IS FURTHER ORDERED, That the petitions and responsive pleadings filed herein will be considered pursuant to the rules as adopted in Docket No. 18742.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING STATEMENT OF COMMISSIONER NICHOLAS JOHNSON
Spanish-speaking citizens in California believe the Pacific Telephone and Telegraph Company does not offer them equal employment opportunities. We refuse to consider their petition, contending that the issues will be disposed of in general rulemaking later.
I do not believe our decision is premised on racist and repressive motivations. The majority honestly believes it has, and will, deal [*447] fairly with the complainants. It wishes to give priority to the construction of the new facilities that would be delayed were we to investigate petitioners' complaints at this time.
The fact remains that petitioners have been denied a procedural opportunity to force the issue at this time and have the Commission confront the issues. The fact remains that the construction of corporate property has been given priority over the consideration of peoples' well-being and just treatment. The fact remains that Pacific Telephone and Telegraph may be constructing these facilities in violation of federal law (Civil Rights Act of 1964), and that this Commission has put its imprimatur of approval upon that possible violation.
It's one thing to take these risks when nobody complains, and the matter will likely never see the light of day. In this case, however, we have been petitioned by parties believing themselves to be aggrieved. Those who have been counseled by the Anglo Establishment that they should not lose their faith in the American principles of justice, that they should not engage in violence, that they should work within the system, have followed their moderate leaders' restrained advice. Can they be expected to do so often again?
This is, in short, a poignant and pathetic example of how governmental and corporate leaders of good will, thinking they are acting reasonably, are in fact adding fuel to the fires of those who urge burning down an establishment that cannot hear: "The majority is not silent, the government is deaf."