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Concerning Fairness Doctrine Re Stations KMOX and KMOX-TV


27 F.C.C.2d 353

FCC 71-51

(JANUARY 15, 1971)


Mr. HENRY THOMAS, Chairman, St. Louis Chapter, Congress of Racial Equality, 

1502 North Union BoulevardSt. LouisMo. 




This is in response to your letter of December 29, 1970, received by the Commission on January 4, 1971, wherein, in your official capacity as Chairman of the St. Louis Chapter of CORE, you request that the Commission permit your organization 'to file a late application in opposition to the [applications] of... [Stations] KMOX and KMOX-TV,' St. Louis, Missouri, for renewal of their broadcast licenses. We construe your letter to be an application or request for an extension of time within which to file a formal petition to deny the applications for renewal of license of Stations KMOX and KMOX-TV.


In your letter you set forth the substance of CORE's complaint against the two stations, i.e. that they have failed to comply with the Commission's Fairness Doctrine with regard to a CORE-organized boycott of the products of Anheuser-Busch, Inc., based on the corporation's alleged discriminatory hiring practices (you enclose with your letter a copy of a letter from the licensee denying your request for 'free broadcast time commensurate with the amount of time devoted to Anheuser-Busch advertising' and further denying that the stations have failed to comply with the Fairness Doctrine).


Under the Communications Act and the Commission's Rules and Regulations, formal petitions to deny a licensee's application for renewal of license will be accepted for filing if tendered by the end of the first day of the last full calendar month of the expiring license term (Section 1.580 of the Commission's Rules). In this case the last day for filing such applications was January 4, 1971, the first business day of the last full calendar month of the license terms of Missouri licensees.


Unless there is a compelling public interest basis therefore, we normally deny requests for waiver of our rules primarily because of the disruptive effect on the Commission's process which would otherwise result. Further, although, as you indicate, you did not receive the licensee's denial of your request until December 22, 1970, the stations were required to give notice by broadcast and newspaper publication of the fact that their renewal applications were to be filed and that members of the public could bring facts concerning their operation to the attention of the Commission. In this particular case the required publication began on October 19, 1970 for KMOX and October 18, 1970, for KMOX-TV. It was the Commission's intention that this requirement would allow for the presentation of complaints and the responses of licensees in time to avoid undue delay in the processing of renewal applications.


In weighing your request for an extension of time, we have also considered the fact that, as stated above, the substance of your complaint is an alleged violation of the Fairness Doctrine. The Commission does not normally designate for hearing or defer action on an application for renewal of license on the basis of an alleged Fairness Doctrine violation, and therefore no extraordinary action would be taken to facilitate such a complaint when a delay in processing the application would result. However, once all information has been considered, the Commission may find that a licensee has failed to comply with the Fairness Doctrine, and direct that it do so with respect to the subject of the complaint.


For the reasons set forth above, we have decided to deny your request for an extension of time to file a formal petition to deny the applications for renewal of license of Stations KMOX and KMOX-TV. However, one of your stated reasons for requesting an extension of time is to allow you an opportunity to file additional information concerning your fairness complaint, and you may be assured that such information will be accorded full consideration.


Commissioner Johnson dissenting and issuing a statement; Commissioner H. Rex Lee absent; Commissioner Houser not participating.




The Congress of Racial Equality (CORE) seeks more time to prepare what appears to be a very serious case of denial of adequate access to airwaves in St. Louis to discuss a labor boycott protesting employer discrimination. The Federal Communications Commission today denies this St. Louis citizens' committee -- that has brought a substantial, good faith complaint against the KMOX stations -- the additional time necessary to file in the license renewal proceeding involving that station.


There is no sound reason why this complaint cannot properly be prosecuted in the pending St. Louis renewal proceeding. Unfortunately, today's decision once again puts this Commission in the posture of appearing to be an anti-citizen, anti-audience body.


We should welcome the voices of opposition, which are essential in helping this Commission prosecute the public interest. The U.S. Court of Appeals for the District of Columbia Circuit has sternly instructed this Commission not to turn its back at license renewal time on legitimate complaints. United Church of Christ v. F.C.C., 359 F. 2d 994 (D.C. Cir. 1966):


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. (Id. at 1003-1004.)


Now that the Commission has been so often, and so forcefully, instructed by the 
courts to get on with the task of public representation one would hope the 
lesson would have sunk in. 


Within the past few months the same court of Appeals, in Retail Store Employees Union v. F.C.C., No. 22,605 (D.C. Cir., Oct. 27, 1970), remanded to this Commission a case strikingly similar to the one before us. A union wished direct access to explain its position, and complained that the store's commercials constituted a stance regarding the union's boycott. The station refused. A divided FCC upheld the station. The Court reversed. The Court, id. at 11, used the following strong language:


We have previously had occasion to point out that the Federal Communications Commission was intended by Congress to function as far more than a mere referee between conflicting parties. See, e.g., L. B. Wilson, Inc. v. FCC, 130 U.S. App. D.C. 156, 397 F. 2d 717 (1968); Citizens TV Protest v. FCC, 121 U.S. App. D.C. 50, 348 F. 2d 56 (1965); Mansfield Journal Co. v. FCC, 86 U.S. App. D.C. 102, 180 F. 2d 28 (1950). Regardless of the formal status of the party, or the technical merits of a particular petition, the FCC 'should not close its eyes to the public interest factors' raised by material in its files. Southwestern Publishing Co. v. FCC, 100 U.S. App. D.C. 251, 254, 243 F. 2d 849, 852 (1957). We have noted, that as a general matter, the federal regulatory agencies should construe pleadings filed before them so as to raise rather than avoid important questions. They 'should not adopt procedures that foreclose full inquiry into broad public interest questions, either patent or latent.' Midwestern Gas Transmission Co. v. FPC, 103 U.S. App. D.C. 360, 368, 258 F. 2d 660, 668 (1958).


What appears to be involved in today's case is a serious access complaint concerning CORE's boycott of Anheuser-Busch, Inc., of St. Louis and the KMOX stations' refusal to grant CORE opportunity to counter the substantial Anheuser-Busch advertising campaigns over the stations. This complaint is nearly on all fours with Retail Clerks, supra, and here as well the Commission is equally obliged to 'construe pleadings... so as to raise rather than avoid important questions.' In fact, the Court in Retail Clerks noted that petitions to deny may be the appropriate vehicle for raising and resolving serious access and/or Fairness Doctrine complaints. Retail Clerks, supra at p. 15 (Footnote 50).


The Commission's rush to renewal also flies in the face of the recent urging from nine members of Congress that the Columbia Broadcasting System's abortive 'Project Nassau' and the matters surrounding that dispute 'should be given careful review and attention when CBS applies for renewal of any of the licenses of its wholly owned stations, either television or radio.' See, Network News Documentary Practices, H.R. Rep. No. 91-1319, 91st Cong., 2d Sess. 151 (1970), reporting on CBS' involvement in an aborted filmed invasion of Haiti. But that is a matter between the FCC and Congress that only makes today's decision worse. It is not necessary to the conclusion that the parties above have posed sufficient reasons for granting them the time requested to participate in the KMOX license renewal procedure.


There is Commission precedent for granting extensions of time to file a petition to deny in exigent circumstances, cf. WSM, Inc., 24 F.C.C. 2d 561, 19 P & F Radio Reg. 2d 476 (1970), and I believe those circumstances are present where, as here, serious First Amendment access questions are raised under the doctrines recently announced in Retail Clerks, supra.


I dissent.


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