In Re Applications of THE ALABAMA EDUCATIONAL TELEVISION COMMISSION For Renewal of Licenses for; STATION WAIQ (ED-TV) MONTGOMERY, ALA.; STATION WBIQ (ED-TV) BIRMINGHAM, ALA.; STATION WCIQ (ED-TV) CHEAHA STATE PARK, ALA.; STATION WDIQ (ED-TV) DOZIER, ALA.; STATION WEIQ (ED-TV) MOBILE, ALA.; STATION WFIQ (ED-TV) FLORENCE, ALA.; STATION WGIQ (ED-TV) LOUISVILLE, ALA.; STATION WHIQ (ED-TV) HUNTSVILLE, ALA.; and For License to Cover Construction Permit for Station WIIQ(ED-TV), Demopolis, Ala.
Docket No. 19422 File No. BRET-69; Docket No. 19423 File No. BRET-5; Docket No. 19424 File No. BRET-7; Docket No. 19425 File No. BRET-14; Docket No. 19426 File No. BRET-87; Docket No. 19427 File No. BRET-130; Docket No. 19428 File No. BRET-147; Docket No. 19429 File No. BRET-109; Docket No. 19430 File No. BLET-267
FEDERAL COMMUNICATIONS COMMISSION
33 F.C.C.2d 495
RELEASE-NUMBER: FCC 72-124
February 11, 1972 Released
Adopted February 8, 1972
BY THE COMMISSION: CHAIRMAN BURCH CONCURRING AND ISSUING A STATEMENT IN WHICH COMMISSIONER REID JOINS; COMMISSIONER BARTLEY DISSENTING AND ISSUING A STATEMENT; COMMISSIONER JOHNSON CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT; COMMISSIONER H. REX LEE ABSENT; COMMISSIONER WILEY ABSTAINING FROM VOTING.
[*495] 1. The Commission has before it for consideration (1) the above-captioned license renewal applications filed by the Alabama Educational Television Commission (hereinafter referred to as the AETC); (2) the Commission's action of June 24, 1970, released June 29, 1970, granting the above-captioned license renewal applications and dismissing several complaints against the AETC; (3) two petitions seeking reconsideration of the Commission's action, one of which was filed July 28, 1970, by Reverend Eugene Farrell, Linda Edwards and Steven Suitts (hereinafter referred to as the Edwards petition), and the other [*496] of which was filed July 28, 1970, by Anthony Brown, in his individual capacity and as representative for the National Association of Black Media Producers, and William D. Wright, in his individual capacity and as representative for Black Efforts for Soul in Television (hereinafter referred to as the Brown petition); (4) AETC's opposition to the Edwards and Brown petitions, filed September 14, 1970; (5) replies to AETC's opposition pleading filed on October 9, 1970, by the Edwards and Brown petitioners; (6) a document dated April 27, 1971, received by the Commission on May 27, 1971, submitted by the AETC to the Department of Health, Education and Welfare (H.E.W.) setting forth its proposals for meeting the educational television needs of Alabama's black community; (7) comments on AETC's proposal filed June 25, 1971, by the Edwards and Brown petitioners; (8) supplemental information regarding its proposal filed by the AETC on August 2, 1971; and (9) comments on AETC's supplemental information and a request for an immediate ruling, filed August 16, 1971, by the Edwards petitioners.
2. In order to place the questions before the Commission in proper perspective, it is first necessary to summarize the events occurring both before and after the filing of the instant petitions. Initially, it is noted that the AETC is an affiliate of the National Educational Television Network (NET). Prior to July 1, 1969, the AETC delegated responsibility for the network's NET affiliation agreement to its University of Alabama program origination center. However, effective July 1, 1969, the AETC assumed full control over the NET affiliation agreement. This action resulted in the filing of several informal, letter complaints with the Commission.
3. The first letter, dated January 14, 1970, from the Chairman of the Faculty Senate, College of Arts and Sciences, University of Alabama, complained that the Program Board had never exercised any decision making power and that the AETC had discontinued the "Black Journal" series and preempted several other programs. Complainant requested the Commission to require the AETC to vest programming and policy in the Program Board, which he claimed was constituted for that purpose. The second letter, dated January 28, 1970, was received from Mrs. Judith A. Austin, a former employee of the AETC, to which there was attached a petition signed by sixty persons, including Steven Suitts. Mrs. Austin complained that the AETC engaged in racial discrimination by censoring several black oriented NET programs, including "Black Journal", "Soul", and "On Being Black".
4. In accordance with usual procedures when complaints of a general nature are received, the Commission forwarded the Faculty Senate and Austin letters to the AETC for its comments. In response, the AETC submitted two letters, both dated February 25, 1970, one of which was directed to the Faculty Senate letter and the other of which was directed to the Austin letter. In substance, the AETC denied charges of racial bias, explained why it had assumed control over the network's affiliation agreement, and why it had deleted certain net programs from its schedule. Thereafter, the Commission received a number of additional complaints regarding the AETC, including a letter from Linda Edwards dated March 9, 1970, and two letters from [*497] Reverend Eugene Farrell, one of which was dated March 12, 1970, and the other dated June 8, 1970. Miss Edwards, who identified herself as a black freshman at the University of Alabama, stated that the AETC "has prevented all liberal or black-oriented programs from being seen by Alabamians" by censoring programs such as "On Being Black", "Black Journal" and the "Denver Black Panther Trial." Miss Edwards also stated that "[it] is not fair for a select group of racist politicians to command what shows be presented to the public according to their own bigoted views." Reverend Farrell's first letter was a copy of a letter he sent to Vice President Spiro T. Agnew, complaining of the AETC's censorship and asserting that "ETV in Alabama is surely becoming the media for White Supremacy." He further stated: "I have yet to see a black face on ETV", although he admits that he "cannot watch ETV all day long." Reverend Farrell's letter of June 8, 1970, to the Commission reiterated his complaint to the Vice President. The AETC, in specific reference to Reverend Farrell's complaint, submitted to the Commission a list of integrated programming which had been broadcast over the network from September 1, 1969, through March 27, 1970. In this connection, the AETC noted that it had broadcast 257 integrated programs for a total of 217 hours of broadcast time during the period mentioned, namley: Christmas Special (1 program, 1 1/2 hrs.); Stepping Into Rhythm (60 programs, 15 hrs.); On Campus (30 programs, 15 hrs.); Focus (6 programs, 3 hrs.); Huntsville, Magazine (31 programs, 15 1/2 hrs.); Earning Through Learning (6 programs, 3 hrs.); Music Specials (3 programs, 1 1/2 hrs.); Dialogue on Education (2 programs, 1 hr.); Sportsmanlike Driving (1 program, 1/2 hr.); Know Your News (10 programs, 5 hrs.); Headliners (1 program, 1/2 hr.); Medical Center (1 program, 1/2 hr.); and Sesame Street (155 programs, 155 hrs.).
5. The Commission, by letter dated June 29, 1970, dismissed the above-noted complaints and granted the AETC's above-captioned license renewal applications for the period ending April 1, 1973, stating:
The Commission has reviewed the overall operations of the eight Alabama educational stations and the allegations raised by the complainants to determine if the public interest would be served by a grant of the applications. With respect to the issues of program selection and control, the Commission, barring certain exceptions, is not concerned with matters essentially of licensee taste or judgment. cf. Palmetto Broadcasting Co., 33 FCC 250, 257 (1962). The licensee necessarily and properly has wide discretion in choosing the programming to meet the needs and interests of the community. The Commission regards the maintenance of control over programming as a most fundamental obligation of the licensee. Here we are dealing with a few programs which in the licensee's opinion contain certain offensive material. In view of the foregoing, there is no substantial problem warranting further inquiry, and the Commission has directed that the applications for renewal of license filed by the AETC be granted. n1
n1 The Commission's decision was made on June 24, 1970, and released on June 29, 1970, with Commissioners Cox, Johnson and H. Rex Lee dissenting and issuing statements. 25 FCC 2d 342.
[*498] 6. Thereafter, as previously indicated, on July 28, 1979, the Edwards and Brown petitioners requested the Commission to reconsider its decision and order hearing to determine whether a grant of the renewal applications would serve the public interest. Briefly, petitioners assert that AETC's license renewal applications should be designated for hearing on the grounds that licensee has (1) failed to ascertain and meet the needs and interests of Alabama's black community; (2) discriminated against Alabama's blacks in its employment practices; (3) violated the freedom of speech of Alabama's black community; and (4) failed to obtain authorization to assume control of the network's programming operations in violation of the terms of its license and Section 310(b) of the Communications Act. The AETC filed an opposition to both petitions and petitioners filed replies to the opposition.
7. On the same date that these petitions were filed with the Commission, copies were sent to various other government agencies and officials, including T. H. Bell, Acting U.S. Commissioner of Education, * Department of Health, Education and Welfare. In a letter to the Commission dated September 2, 1970, Mr. Bell noted that the AETC was then receiving federal financial assistance in the amount of $1,000,000, and had 10 applications pending for an additional $2,761,213. Mr. Bell also noted that the petitions raised a question whether the AETC was complying with the requirements of Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the ground of race, color, creed or national origin in the operation of any Federally assisted program. Mr. Bell also stated that the Office of Education was instituting an investigation into the operation of the AETC. As a result of a meeting between the AETC and officials of the Office of Civil Rights, Department of Health, Education and Welfare, the AETC submitted a proposal, dated April 27, 1971, which included plans for ascertaining the needs of the Alabama black community, for production of specific programs to meet those needs, for a training program for a black engineer, and for an advisory committee "to reflect the community ETV needs and act as a sounding board to the AETC programming." Thereafter, on June 3 and September 12, 1971, H.E.W. approved grants for the AETC in the amounts of $89,621 and $340,000, respectively.
8. On June 10 and 11, 1971, Commission representatives met separately with petitioners and the AETC in an effort to clarify the positions of the parties. The AETC's proposal to H.E.W. formed a basis of those discussions. The substance of the matters discussed is contained in the subsequent submissions by the petitioners and the AETC to the Commission. That is, on June 25, 1971, the Edwards petitioners submitted their comments on the AETC's proposal to H.E.W. By letter dated July 16, 1971, the AETC informed the Commission of the progress it had made on its proposals. This letter, in turn, evoked comments from the Edwards petitioners and a request for an immediate ruling in this case.
9. Anthony Brown and William D. Wright did not avail themselves of the opportunity to file a pre-grant petition to deny, (47 [*499] U.S.C. 309(d)(1); 47 C.F.R. 1:580(i), or informal objection (47 C.F.R. 1.587). They now seek reconsideration of the Commission's action on the grounds that they "... believe that the Commission's decision of June 29, 1970... will frustrate the goals to which they and their organizations are devoted"; and, moreover, that "... the decision, if left standing, will impede the participation of blacks in both commercial and noncommercial broadcasting throughout the country." The Brown petitioners also state that, "... as black men and organizations composed of blacks, they have a clear interest in the plight of their brethren in Alabama." The Brown petitioners state further that they "... have not come forward before this [time] because they believed that the facts that had already been called to the attention of the Commission were sufficient to bar the Commission's action of June 29, 1970."
10. In its opposition pleading, the AETC asserts that the Brown-Wright petition for reconsideration must be dismissed in that, neither was a party to the proceeding prior to grant; neither demonstrates any manner in which he could have aggrieved or adversely affected by the granting of the AETC's renewal applications; neither alleges any facts which were unknown (or which could not readily have been known) when the applications were under pre-grant consideration; neither asserts any legally cognizable connection with the coverage areas of the AETC's stations; and neither has submitted any affidavit attesting to personal knowledge of any of the allegations made on their behalf.
The AETC asserts, therefore, that, "[in] short, under any interpretation of Section 1.106 [of the Commission's rules] the Brown and Wright petition should be dismissed without substantive consideration."
11. In their reply, the Brown petitioners state that "... as black men and as representatives of national black organizations, [they] believe that their relation to AETC is discernible." In this respect, the Brown petitioners state that they are not only taxpayers who support the AETC with federal grants but, more importantly, "... their respective organizations are directly concerned with efforts in the communications field to meet black educational and cultural needs throughout the Nation." The Brown petitioners also state that, "[given] the fact that it is supported by federal funds, the AETC cannot deny the interdependence of the levels of government or the impact which the Commission's decision in this matter may have in other states." Additionally, the Brown petitioners state that, "[at] the time of the Commission's decision, petitioners were not aware of the federal grants received by AETC and did not have access to other information..."; that "petitioners did not believe then that such information was necessary, since the facts of the initial complaints were believed to be sufficient to warrant denial of AETC's renewal applications," and, that "[because] of information newly acquired, and because the Commission did renew AETC's license, petitioners now feel compelled to submit the new information and present a perspective on this matter which was heretofore lacking -- the perspective of black men involved in the communications field [*500] and directly concerned with the treatment of black educational needs by noncommercial licensees.
12. The Brown petitioners, in their reply, also state that they realize that "... under different circumstances their failure to register pre-grant complaints with the Commission may have warranted dismissal of their petition for reconsideration." The Brown petitioners assert, however, that they are not parties "with a potential financial interest in the particular license" but, rather, "... public interveners who are concerned with the performance of a noncommercial educational licensee." The Brown petitioners assert further that dismissal of their petition "... will not make it unnecessary for the Commission to proceed further in this matter" since there is another petition for reconsideration also pending before the Commission concerning the AETC's license renewal grants. The Brown petitioners conclude, therefore, that the only effect of a dismissal of their petition "... will be to foreclose information and analyses relating to a matter the Commission will consider in any event."
13. The Brown-Wright petition for reconsideration will be dismissed. Section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 405, as implemented by Section 1.106 of the Commission's rules, 47 C.F.R. 1.106, permits the filing of a petition for reconsideration by (1) any party to the proceeding and (2) any other person aggrieved or whose interests are adversely affected by the Commission's action. Section 1.106(b) of the Commission's rules requires a person who was not a party to the proceeding and who seeks reconsideration to "... show good reason why it was not possible for him to participate in the earlier stages of the proceeding." The Brown petitioners could have participated in the earlier stages of this proceeding by filing either a petition to deny or informal complaint against AETC's license renewal applications. As previously indicated however the Brown petitioners did not come forward at the time the Commission had the AETC's license renewal applications under consideration because, in their opinion, the facts already called to the Commission's attention were sufficient to bar a grant of the renewals and designate the applications for hearing. Without ruling on the question whether Brown and Wright would have had standing to protest the AETC's license renewal applications, if an individual has a right to participate in a proceeding before this Commission he cannot delay exercising that right until after the Commission has acted and then expect to be allowed to participate by filing a post grant pleading. Springfield Television Broadcasting Corporation v. Federal Communications Commission, 117 U.S. App. D.C. 214, 328 F.2d 186 (1964); Valley Telecasting Company, Inc. v. Federal Communications Commission, 118 U.S. App. D.C. 410, 336 F.2d 914 (1964). As stated in KIRO, Inc. v. Federal Communications Commission, 438 F.2d 141 (1970), "we do not find in statute or case law any ground for accepting the premise that proceedings before administrative agencies are to be constituted as endurance contests modeled after relay races in which the baton of proceeding is passed on successively from one legally exhausted contestant to a newly arriving stranger." Accordingly, we find that the Brown-Wright petitioners have not met the more exacting standard which is required of a petitioner [*501] who comes in for the first time with a post-grant pleading and, therefore, their petition for reconsideration will be dismissed. We note, however, that contentions substantially similar to those advanced by the Brown-Wright petitioners have been raised by the Edwards petitioners.
14. The Edwards petitioners acknowledge that, "[to] date, the Commission has not required that noncommercial educational stations ascertain the community's needs in the same manner as commercial stations (Edwards Petition, p. 3). The Edwards' petitions maintain however that noncommercial broadcasters must, "at some point..., make a positive effort to understand the needs of the community and how those needs may be most appropriately satisfied." (Edwards Petition, p. 9). The Edwards petitioners allege that the AETC has made no showing of an effort to understand or satisfy the needs of its community. The Edwards petitioners conclude that this failure to consult blacks about programming constitutes a violation of the AETC's responsibilities as a licensee.
15. The Edwards petitioners also contend that the AETC's program service is "inadequate to meet the educational and cultural needs of Alabama's blacks." (Edwards Petition, p. 11). Thus, it is alleged that less than 10% of the broadcast time during the period between September 1, 1969 and March 27, 1970, was integrated. Moreover, the Edwards petitioners assert that of the 217 1/2 hours of integrated programming telecast, 155 hours were occupied by "Sesame Street"; and 15 hours by "Stepping Into Rhythm", both children's programs. Thus, the Edwards petitioners state that only 47 1/2 hours or less than 3% of AETC's broadcast time involved black adults and none of this time was "specifically related to blacks in general or to the black community in Alabama in particular." (Edwards Petition, p. 12). The Edwards petitioners also allege that "of 937 1/2 hours of instructional television during the period in question, only 15 1/2 hours were integrated." (Edwards Petition, p. 13). It is asserted that the AETC's refusal to carry program origination outside Alabama which are specifically intended for blacks raise serious questions in view of the AETC's own inadequate efforts to meet the needs of the black community. The Edwards petitioners conclude that, "when the licensee of a noncommercial educational station consciously or unconsciously discriminates against blacks and demonstrates by a comprehensive and systematic exclusion of relevant programming a lack of any intention or desire to understand or to satisfy the educational or cultural needs of 30% of its viewing audience, a substantial or material question of fact as to whether renewal would serve the public interest is raised." (Edwards Petition, p. 18).
16. In the area of employment practices the Edwards petitioners allege that the AETC has discriminated against blacks since there are no blacks on the staff of forty nor is there any indication that the AETC "has established and maintained a continuing program to insure equal opportunities for blacks to be employed by the AETC." (Edwards Petition, p. 20). Thus, in this regard, it is alleged that the [*502] AETC has violated the provisions of Section 73.680(a) of the Commission's Rules, 47 C.F.R. 73.680(a).
17. The Edwards petitioners further allege that the AETC has violated the freedom of speech of blacks by censoring programs of specific interest to blacks. Petitioners recognize the right of a licensee to select programming, and that refusal to carry a particular program does not, by itself, constitute evidence of censorship. However, the Edwards petitioners submit that "when that unwillingness attaches systematically to every adult program specifically related to blacks, the conclusion is inescapable that not only has the AETC discriminated, but it has also censored those programs even though many do not contain objectionable language or scenes..."
18. Finally, the Edwards petitioners submit that the Commission's decision to issue the AETC's original license was predicated upon the existence of a Program Board composed of educators from the State of Alabama. Petitioners contend that until July 1969, "[the] Programming Board functioned under the direction of various educators associated with the University of Alabama." (Edwards Petition, p. 25). However, petitioners assert, "on July 1, 1969, AETC suddenly stripped the persons of their program directing authority and transferred the authority to its own offices in Birmingham." (Edwards Petition, p. 25). Petitioners conclude, therefore, that this assumption of programming control is "in violation of the conditions imposed... by the Commission." (Edwards Petition, p. 25). Moreover, petitioners submit that this assumption of programming control was accomplished without notice to the Commission in violation of Section 310(b) of the Communications Act. Petitioners also conclude "that the differing factual contentions in this matter must be resolved by the Commission in an evidentiary hearing." (Edwards Petition, p. 27).
19. In opposition, the AETC asserts that "the allegations in both petitions boil down to one basic argument: a claim that the AETC improperly discriminated against Alabama blacks by virtue of its non-carriage of some or all four NET program offerings: 'On Being Black,' 'Black Journal,' 'Soul,' and the 'Denver Black Panther Trial'" (Opposition, p. 18). The AETC states that it is particularly vulnerable to the type of complaint being made since it is unable to carry all NET programs as a result of its heavy schedule of locally originated programs. With regard to the programs, "On Being Black" and "Soul", the AETC asserts that they conflicted with its established schedule in addition to presenting problems from the standpoints of taste and overall worth. With regard to its selection of programs, the AETC refers to its program policy which states, in part, the controversial public affairs program "... will have no vituperation, slander or personal attacks, but present only dignified discussion of issues." (Opposition, p. 21). Also, the AETC asserts that its NET affiliation agreement imposes a "take it or leave it" policy in that an NET program must be broadcast in its entirety without any deletions. Thus, when the AETC finds certain material offensive, it must delete the entire program. The AETC concludes, with regard to program selection, "... that any licensee, knowing his area of service, has an obligation [*503] to determine whether a particular program will meet the needs of the public it serves. In every sense of the word, minority needs must be considered and met as well as majority needs. The decision, however, properly lies with the licensee and not with the FCC." (Opposition, p. 22-23).
20. The AETC states there has been no censorship or denial of anyone's freedom of speech. It also denies suppressing the expression of certain viewpoints. The AETC emphasizes that "when time is available NET programming such as 'Black Journal' is considered carefully by the AETC," but first priority is given to Alabama oriented programming. (Opposition, p. 23). The AETC notes that it now has a policy of taping "Black Journal", reviewing the tape, and then broadcasting it one week later if it is found acceptable.
21. With regard to its employment practices, the AETC asserts that the petitioners have no basis for their allegations. The AETC contends that, out of a total of about 50 employees, the AETC now employs five blacks including: one custodian, one secretary, one engineer, one production department assistant, and one program producer. Moreover, the AETC notes that it has recently arranged with the Jefferson County Committee for Economic Opportunity for a program to train black engineers. Finally, the AETC notes that it does not control the hiring practices of its production centers, since they are agencies under contract to the AETC.
22. The AETC asserts that its assumption of the NET affiliation was proper and, in fact, was in conformity with AETC's operational needs and realities. The University of Alabama had been the NET affiliate prior to July 1969. This arrangement was due, in part, to "an early lack of funds for the AETC'" (Opposition, p. 4). AETC states that the assumption of the NET affiliation was preceded by two developments. "First, NET began to provide its service by means of long lines..."; and, "Second, more and more of its programming came to be produced in color." (Opposition, p. 5). Since "the microwave facilities between the University of Alabama production center at Tuscaloosa and the AETC's Birmingham switching point were (and are) technically inadequate for color transmission", AETC "became the NET affiliate, and began to receive NET programming at the key Birmingham switching point." (Opposition, p. 5). This arrangement did not alter the ultimate control of programming which, the AETC submits, had always been in its hands.
23. The Edwards petitioners, in their reply, state that contrary to the implication by the AETC, petitioners do not "seek to have the Commission dictate to AETC what programs must be broadcast." (Edwards Reply, p. 15). Rather, "one of petitioners' essential contentions is that the AETC has discriminated against blacks and consequently has failed to meet the educational needs of the black community in Alabama." (Edwards Reply, p. 15). It is noted that AETC has failed to explain the lack of locally produced black-oriented programming. With regard to AETC's reference to the "take it or leave it policy" contained in the NET affiliation agreement, the Edwards petitioners note that the agreement also has a provision for omitting objectionable material if prior consent is obtained from NET. [*504] Yet, petitioners note, "AETC makes no showing that it even once sought such permission from NET." (Edwards Reply, p. 17). As to the pre-screening procedure adopted for "Black Journal", the Edwards petitioners state. "It defies credulity to assert that AETC could not have thought up such a simple procedure prior to the complaint were it motivated by a concern for the educational needs of blacks rather than by discriminatory predilections." (Edwards Reply, pp. 18-19). The Edwards petitioners also state that the "take it or leave it" policy of NET does not explain why the AETC rejected a whole series of programs based upon objectionable material in one program. While recognizing the right of AETC to exercise its discretion in the selection of programming, the Edwards petitioners note that the AETC has not cited "a single instance where it has exercised its discretion to bar a NET program other than one relating to blacks." In this connection, the Edwards petitioners state that, "if this discretion were exercised on an impartial basis, there must be some instances where other programs were rejected" (footnote omitted) (Edwards Reply, p. 20). Petitioner also noted that the AETC program policy contains no prohibition on refusing to accept programs on the basis of race.
24. The Edwards petitioners assert that AETC's compliance with the Commission's equal employment rules is still in doubt. Petitioners submit that it is inconsistent with AETC's public trust to contend that it has no right or obligation to insure compliance with the Commission's employment regulations by its program origination centers. Finally, the Edwards petitioners state their support for AETC's recent increase in black employees. The Edward petitioners assert, however, that the Commission has a duty, in view of AETC's past failures, to investigate AETC's employment structure and practices.
25. In reiterating their assertions that AETC has infringed on constitutionally protected speech, the Edwards petitioners refer to AETC's opposition Exhibit 14. Included in the listing of profanities and vulgarities contained in a particular "Black Journal" program not carried by the AETC were the following: "Nixon is trying to strangle the second reconstruction" and "Malcolm X was a dissenter and they (the Establishment) killed him." Petitioners submit, "Omitting a program because of these passages is censorship of political speech -- the cornerstone of the First Amendment and the public interest -- and not an exercise of discretion based on bad taste or alleged indecency." (Edwards Reply, p. 25).
26. Finally, petitioners contend "The precise function of the Program Board remains in dispute." (Edwards Reply, p. 26). In this regard petitioners state, "Whether AETC effected a transfer of certain rights under its license by becoming the NET affiliate and by assuming certain legal and de facto rights with respect to programming decisions can only be resolved in a factual hearing where the testimony of those who were parties to the original license proceeding of AETC can be examined under oath. (Edwards Reply, pp. 27-28).
27. As previously mentioned, the Commission also has before it for consideration the AETC's H.E.W. proposal for meeting the educational television needs of Alabama's black community; the Edwards [*505] petitioners' comments thereon; the AETC's progress report on its proposal; and the Edwards petitioners' comments on the progress report. The AETC proposal consists of several parts. First, a black assistant to the program director "will design and assist in conducting a personal interview-direct mail survey to be utilized in the determination of specific minority needs in programming." (AETC Proposal, p. 1). The survey, which is intended to reach at least 500 black Alabamians, will be conducted by black college students from five geographical areas throughout the state. After analysis of the survey data, the AETC plans to "establish specific program or series priorities based on the results of the survey analysis." (AETC Proposal, p. 2). Then each production studio will "be committed and responsible to the [AETC] for a program or series dealing with black needs..." (AETC Proposal, p. 2). Provisions will be made for those who participated in the survey to preview the programs and make comments and suggestions. Last minute changes would then be made if necessary. Once an airdate has been selected for a particular program, promotion of the program will commence. The AETC citizens advisory committee will be asked for their evaluation of the programs broadcast. The broadcast time of these programs will be determined from the survey. Second, the AETC has made arrangements in cooperation with the Alabama Center for Higher Education (a consortium of black universities and colleges) by which these institutions will develope a series of programs "... which will reflect subject matter and treatment as they [the schools of the consortium] determine." (AETC Proposal, p. 4). Third, the AETC has made contractual arrangements for on-the-job training of black electronic engineering personnel. There is presently one trainee who, after obtaining a first class license, will be given the first vacancy on the AETC engineering staff. Fourth, the relationship between the AETC and the Alabama State Department of Education is explained. Since that department is by law responsible for instruction programming in the public schools, the AETC defers to it in matters of instructional programming content, criteria and subject selection. Finally, the AETC states that the Citizens Advisory Committee has been reorganized. This committee will act as a sounding board for the community to the AETC programming. It presently consists of 19 members, six of whom are black.
28. The Edwards petitioners in their comments assert that the AETC proposal "is in fact designed as a means of prying loose an H.E.W. grant." (Edwards Comments, p. 3). They state, in this connection, that, "... whatever its merits in satisfying H.E.W., the Proposal is not adequate to discharge AETC's responsibilities as a Commission licensee." (footnote omitted) (Edward Comments, p. 4). Although petitioners set forth numerous criticisms of the AETC proposal, they assert that their criticisms are not exhaustive. "Petitioners are merely attempting to focus the Commission's attention on the vapidness of the Proposal and its failure to reflect Black input at any level." (Edwards Comments, p. 7). It is asserted that the Black AETC Assistant Program Director occupies no policy position. The Edwards petitioners also assert that this individual is expected to [*506] perform duties "... requiring no less than two and possibly three persons..." (Edwards Comments, p. 8). Petitioners note that the questionnaire is to be developed with the assistance of Samford University, a predominantly white school. In this regard, petitioners question why the AETC couldn't have found a black university of equal competence. Petitioners state that there is a "total failure to provide for any Black input in analysis of the survey returns." (Edwards Comments, p. 10). Thus, according to petitioners, by the time blacks are introduced into the process of program production, it is too late to compensate for the white bias which has preceded. Petitioners also question the practicality of the proposal for having black individuals preview the newly designed programs in view of the desire of blacks to remain anonymous and the difficulty of taking time to travel to the AETC studios to watch the preview. Further, petitioners note "there are still no Blacks making decisions with respect to the airing of nationally distributed programs of relevance, concern and/or interest to Blacks' educational and cultural needs." (Edwards Comments, p. 15). While commending the association with the consortium of Black institutions, petitioners urge that "... a production contract should be arranged with one of the Black colleges." (Edwards Comments, p. 16). Petitioners further complain that the "... AETC has done nothing to assure adequate Black employment at its production centers." (Edwards Comments, p. 17). With regard to the Citizens Advisory Committee, petitioners assert that it is hardly a "grassroots sounding board," since its members are "professionals and representatives of traditional civic organizations." (Edwards Comments, p. 18). Petitioners also question how the Board will function. Finally, petitioners state, "The Proposal cannot, in any event allow AETC to escape the consequences of its past actions. Belated upgrading or pledges of improved service cannot, in the face of a license challenge, aid the licensee." (Edwards Comments, p. 20).
29. In the AETC's letter of July 16, 1971, it advised the Commission of the progress which has been made implementing its April 27th proposal. It also has amplified its relation to the State Board of Education and has submitted more details concerning the Citizens Advisory Board's function. Thus, AETC notes that its survey form has been designed and it is in the process of making the final selection of 12 black college students to conduct the survey. The AETC further notes that it has established Alabama Agricultural and Mechanical University, a predominantly black school in Normal, Alabama, as a contract program production agency. With regard to its cooperation with the consortium of black institutions for creation of a series of programs developed and produced by blacks, the AETC states that it now has expended its original plan to include all eight schools of the consortium. Each school will develop four programs for a 32 program series. Finally, "in order to reinforce its sincerity and dedication to the commitment of minority involvement and programming..." the AETC has submitted an equal opportunity program (Section VI of the Renewal Form).
30. On August 16, 1971, the Edwards petitioners submitted comments on the AETC updated proposal. In essence, they conclude that [*507] the updating is not responsive to their comments on the proposal and note that the updating "reflects the same built-in biases of which petitioners have already complained."
31. As may be seen from the foregoing, this case has been further complicated by the fact that the issues raised on reconsideration extend well beyond the issues set forth in the initial complaints. Pursuant to Section 1.106(c) of the Commission's rules 47 C.F.R. 1.106(c), a petition for reconsideration which relies on facts not previously submitted to the Commission will be granted only if the facts relied upon (i) relate to circumstances which have changed since the last opportunity to present such matters, or (ii) were unknown to the petitioner until after his last opportunity to present such matters and could not have been ascertained through the exercise of ordinary diligence. For the most part the facts now relied upon by the Edwards petitioners were not previously presented to the Commission. Further, it is clear that the facts presented on reconsideration could have been ascertained prior to the Commission's action of June 24, 1969, had the Edwards petitioners exercised the requisite diligence. However, so that there may be no question about our full consideration of all matters raised, we have decided to consider and rule on every issue regardless of the time it was presented. While we are hopeful that the approach will not encourage the injection of new issues on reconsideration in future cases, we are satisfied that full consideration is justified in this case.
32. The first issue raised is whether the AETC's license renewal applications for the above-captioned stations should be designated for hearing on the grounds that the licensee has made no efforts to conduct a survey to determine the needs and interests of black Alabamians. It is well established that commercial broadcasters must conduct surveys to determine the needs and interests of their service areas. However, the Commission has never required noncommercial educational broadcasters such as the AETC to conduct community surveys. In fact, the Commission has specifically exempted noncommercial educational broadcasters from all of the requirements of its Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 FCC 2d 650 (1971), wherein we stated that,
[given] the reservation of channels for specialized kinds of programming, educational stations manifestly must be treated differently than commercial stations. n2
n2 It is noteworthy that FCC Form 342, the renewal application for noncommercial educational AM, FM and TV stations, does not request any information concerning a noncommercial broadcasters' efforts to ascertain the needs and interests of their service areas, which, as in this case, often encompass more than a single service area. Compare Section IV of FCC Form 303, the renewal application for commercial broadcasters.
33. Therefore, since we have not imposed ascertainment requirements on noncommercial educational broadcasters, we believe it would be inappropriate to designate the AETC's license renewal applications for hearing on a survey issue. Instead, the subject of requiring noncommercial educational broadcasters to conduct some type of survey [*508] would be more appropriate for exploration in an overall rulemaking proceeding. Furthermore, we note that the AETC is now in the process of conducting an extensive survey to determine the needs and interests of black Alabamians. Despite petitioners' criticisms of the AETC's survey, we believe that the licensee is making an honest and good faith effort to determine the particular needs and interests of black Alabamians and that the Alabama educational television network's programming service for the State's black population will only benefit as a result of the licensee's efforts. We conclude, therefore, that the relief requested on this issue is not now appropriate.
34. The next issue raised is whether the AETC's assumption of control over the Alabama educational television network's programming operations, including its NET affiliation agreement, constitutes a violation of the terms of its broadcast authorizations and Section 310(b) of the Communications Act of 1934, as amended. The Commission's records show that the AETC was created in 1953 by Act 81 of the Alabama State Legislature. The AETC is composed of five members appointed by the Governor of Alabama for ten year terms, the term of one member expiring every two years. As a supplement to the AETC there is a Program Board, which is a policy interpreting body and acts in an advisory capacity to the AETC. Further, the Prgram Board is appointed by the AETC. There is nothing in the Commission's files, however, which indicates that this agency ever predicated a grant of a broadcast license to the AETC on the condition that a Program Board or some other inter-organizational entity exercise responsibility over the licensee's programming operations, including its NET affiliation agreement. Instead, when the AETC was granted its first broadcast license, overall responsibility for programming, engineering and policy was vested in the AETC -- the licensee. The AETC, of course, in carrying out its functions as a licensee, may delegate certain responsibilities just as any other broadcaster or corporate entity. However, the AETC, as licensee, also has ultimate control over every aspect of its broadcast operations; consequently, although the AETC may have delegated certain program functions to its Program Board or program production centers, 38 facts do not alter the rights vested in the AETC to revoke such delegations and to exercise full responsibility over its programming operations. Such action does not constitute a violation of Section 310(b) of the Communications Act. We also conclude, therefore, that the relief requested on this issue is not appropriate.
35. The next issue raised concerns the AETC's programming performance. In sum, the petitioners argue that the AETC has systematically excluded all NET programs specifically relevant to blacks; and, further, has failed to provide a sufficient amount of local programming to compensate for the failure to broadcast NET black oriented programming. The petitioners also argue that the AETC has violated the freedom of speech of black Alabamians by deleting from its program schedule certain NET programs because of alleged vulgarities.
36. The AETC, as previously indicated, was created in 1953 for the purpose of establishing and maintaining an educational television [*509] network in the State of Alabama. Since its creation, the AETC has become the licensee of eight noncommercial television stations, namely: WAIQ (Montgomery), WBIQ (Birmingham), WCIQ (Cheaha State Park), WDIQ (Dozier), WEIQ (Mobile), WFIQ (Florence), WGIQ (Louisville), and WHIQ (Huntsville). The AETC is presently operating a ninth station, WIIQ, Demoplis, under program test authority. Also fully operational are three translator stations located in Hamilton (W7OAN), Winfield (W7ZAN), and Guin (W7YA). Over 1000 miles of microwave facilities interconnect these stations and all programming is simulcast over the AETC's television stations. With regard to the AETC's programming, the licensee has entered into contracts with the University of Alabama, Auburn University, Montevallo University, the State Board of Education, the Huntsville City Board of Education, the Birmingham Board of Education, the Mobile Board of School Commissioners, and Alabama Agricultural and Mechanical University, each of which supplies "approximately an equal share of the more than 40 hours weekly of Alabama-originated television programming." n3 The AETC has also entered into agreements with the NET and Public Broadcasting Service for nationally produced programming.
n3 See Opposition, p. 4.
37. The licenses for AETC's various television stations have been regularly renewed since beginning their broadcast operations. The Commission, of consider the broadcaster's overall performance -- both favorable and unfavorable -- in determining whether a renewal should be granted. AETC's pending renewal applications, which set forth the licensee's operations for the preceding license term, disclose that during a typical week the Alabama educational television network presents 29 hours (38%) of instructional programming, 11 hours and 45 minutes (15%) of general educational programming, 6 hours and 30 minutes (9%) of performing arts programming, 19 hours (25%) of public affairs programming, and 10 hours and 15 minutes (13%) of all other programming. Of this programming, 50 hours and 30 minutes (69%) is produced by AETC's various program production centers, 16 hours and 45 minutes (21%) is provided by networks, and 7 hours and 45 minutes (10%) is provided by other sources. These figures disclose that the AETC's major effort has been in the areas of instructional and educational programming, a noteworthy effort since Alabama has the lowest per pupil expenditure for education than that of any other state. In this respect, the AETC produces and telecasts a large number of in-school educational programming, which teachers throughout the state use to supplement their regular classroom instruction. By way of example, the AETC presents programs dealing with science, handwriting, mathematics, word study, speech improvement, reading, and many other subjects which serve as instructional aid in grades one through twelve.
38. The record also shows that the AETC has broadcast a number of integrated programs. That is, from September 1, 1969, through March 27, 1970, the AETC presented 257 integrated programs constituting [*510] 217 hours of broadcast time. The record also discloses that, for the period extending from September 1969 through July 1970, the AETC presented 554 integrated programs constituting 443 hours of its total broadcast time. The AETC also submits that it broadcast 635 programs constituting approximately 299 hours of its total broadcast schedule from September 1969 through July 1970 which were occasionally integrated but for which it did not know the number of isolated shows because no records were kept.
39. With regard to NET programming the AETC acknowledges that it has refused to broadcast a number of such programs because, in its opinion, such programs contained what it deemed to be offensive language. Thus, in its letter of February 25, 1970, the AETC stated:
It is interesting to note that the programs being insisted upon as part of the AETC schedule by the U of A Faculty Senate, College of Arts and Sciences, and an employee of the U of A Broadcasting Services in their complaints to the F.C.C. are by name: "Black Journal," "Soul," "The Show," "On Being Black," and others. It should also be noted that the NET affiliate contract requires a NET program be run in full. No editing is permitted.
For documentation there are here listed quotes from some of the audio portions of those productions in addition to several visual sequence descriptions:
"The Show": (Program #3, January 25, 1970) Mason Williams said, "... The Black man has endured a lot of bullshit really from..." Lyrics of a song by Mason Williams included, "In our birthday suits we had a few toots and I sure ain't talking about beers... you're the best shot I've seen in years... I'll bet I can beat you to bed again..."
"Black Journal": (Program #17, October 24, 1969) Contained the phrases "Screw your brother... go to hell... damn... rats leaving crap in the corner..."
"Hospital": e8NET Special, February 2, 1970) Discussion by a man who stated that he was a male prostitute and that he was on welfare. A pelvic exam was being performed on a female (draped(. A vomiting man exclaiming "shit" several times during his 2-minute seizure. A bloodsoaked man kept on camera for three minutes. A post-cranium performed and the brain removed during the sequence."
"Soul": (Program #6, March 11, 1970) A poem about drugs: "... Dope is shit... put shit in your arm... mama's tears... what difference do it make, stay high sucker chump."
"In the Company of Men": (Net/ Journal #264, February 9, 1970) Contained several "goddams" "... get your black ass out of here..." A statement by one of the participants to the effect that his foreman required him to perform perverted acts or lose his job.
"Hemiskringle": (NET Playhouse #162, November 7, 1969) Male nude appeared on scene without any apparent motivation. Member of the DAR desecrating the United States flag. A group of virtually nude men and women in a pile biting the blood out of one another and licking the blood.
"On Being Black": ("Johnny Ghost," October 8, 1969) Had a nude male shower sequence, severing profane expressions and a confrontation between the principal character and his wife because he wouldn't go to bed with her while in training.
"Soul": (Preview, January 26, 1970) Song containing "Proud songs of rebellion our fathers sang... whores... babies without fathers," also "If Wallace did not exist... "If Agnew did not exist... beautiful, beautiful..." Then a poem "... dine 'em, dance 'em, take 'em to bed..."
40. The NET affiliation agreement provides, in substance, that stations will broadcast its programs in full without any deletions, alterations, edits, or other changes. Here the AETC determined that a number of NET'S PROGRAMS WERE NOT SUITABLE FOR BROADCAST, NOT BECAUSE THEY PERTAINED TO BLACKS, BUT, INSTEAD, BECAUSE IN ITS JUDGMENT [*511] they were offensive. The AETC submits however that it has not systematically excluded all NET black oriented programming. As previously indicated, the AETC has adopted a preview procedure to determine whether NET programs are suitable for broadcast. Following this preview procedure, the Alabama Educational Television network has telecast at least three of NET's "Black Journal" programs and all of NET's "Black Frontier" series. These programs have been telecast since the AETC assumed full control over its NET affiliation agreement (i.e., after July 1, 1969).
41. In Office Communication of United Church of Christ v. F.C.C., 359 F. 2d 995 (1966), the Court stated that the best criterion for determining whether a renewal should be granted is the licensee's past performance. The Court stated further that the Commission could not make an affirmative public interest finding based on a "pious hope" for better performance because the licensee of WLBT-TV had neither promised or demonstrated any capacity or willingness to change. As to the need for a properly run station in Jackson, Mississippi, the Court found that there was not sufficient evidence in the record to justify a "policy determination" that WLBT was needed in the community. However, licensing is also prospective in nature, in that it authorizes future operation. Accordingly, in United Church of Christ, supra, the Court indicated that the Commission had discretion to experiment and take calculated risks on renewal of broadcast licenses based on the applicant's proposals for the future. For the purposes of forecasting, of course, the Commission must review the applicant's background for evidence as to expectable performance. As previously noted, the record discloses that the AETC has broadcast a number of integrated programs. Clearly, this is a fact from which the Commission may draw inferences as to AETC's future probabilities. n4 Accordingly, we are of the opinion that it is entirely appropriate to examine the AETC's future proposals. This is especially true in a case such as this where one aspect of the licensee's programming performance has been questioned and the record discloses an otherwise outstanding service in the public interest; and, where, unlike the circumstances presented in United Church of Christ, supra, we are concerned with a network of noncommercial educational television stations serving a statewide area and devoting a substantial amount of its broadcast time to instructional/educational programming (paragraphs 37-39, above).
n4 See, footnote 5 infra, paragraph 43.
42. As delineated in its proposal to H.E.W. of April 1971 and amplified in its letter to the Commission of July 16, 1971, we note that the AETC is making a special effort to ascertain the needs and interests of Alabama's black population. We also note that the AETC has already made arrangements with eight predominately black colleges and universities to produce 32 programs concerned specifically with the needs of black Alabamians. In addition, the AETC has entered into a contractual arrangement with a predominately black university to provide an additional program origination center. Finally, we note that the AETC has undertaken efforts to open up additional channels of communications with the black community.
[*512] 43. The Commission is thus faced with a difficult choice between two conflicting considerations. On the one hand, the AETC has established one of the best noncommercial educational television networks in the United States; and, further, produces and broadcasts a large number of educational/instructional programming designed to improve the quality of education for Alabamians. In this connection, we note that the AETC's in-school programs are received in 702 elementary schools and 309 high schools, and that the licensee's broadcasts are available to 10,025 teachers, 437,068 elementary students, and 471,295 high school students. The foregoing facts militate against a finding that AETC discriminated against blacks in its programming presentations. The record also discloses that the AETC is undertaking additional efforts to improve its service to meet the specific needs of Alabama's significant black population. On the other hand, however, there is a charge that the AETC has deliberately excluded a number of network programs on racial grounds and, also, has failed to compensate for its failure to broadcast network black oriented programming. In short, it is claimed that AETC's programming performance has been wholly inadequate to meet the educational and cultural needs of Alabama's blacks. Although the record discloses that the AETC has broadcast some network offerings and rejected others, the facts available do not otherwise provide sufficient information for the Commission to decide this aspect of this proceeding on the bases of the pleadings. Accordingly, without a full record of facts and adversary views that an evidentiary hearing would provide, we believe that this aspect of this proceeding could best be resolved by having the AETC's above-captioned license renewal applications designated for hearing. n5
n5 As noted in paragraph 41, the Commission believes it is appropriate to explore what efforts are being undertaken by the AETC to develop programming to meet the needs of Alabama's citizens and, accordingly, an appropriate issue has been added. However, in light of the evidence adduced under Issues 1 and 2 herein, Issue 3 herein has been added without prejudice to the rights of the parties to argue, subsequently, what weight should be accorded the evidence adduced under Issue 3.
44. Likewise, in view of the claim that the AETC has discriminated in its programming we believe that the questions raised regarding the AETC's compliance with Section 73.680 of the Commission's rules could also best be resolved in an evidentiary hearing. In short, our rules regarding nondiscrimination in the employment practices of broadcast licensees have been designed to achieve equality of employment opportunities. Accordingly, issue 4 below is designed to explore whether the AETC has made reasonable and good faith efforts to comply with the provisions of Section 73.680 of the Commission's rules. The issue set forth below however is not designed for the purpose of exploring whether the AETC is responsible for the employment policies and practices of its various program production centers. The record discloses that these centers are separate entities; e.g., the University of Alabama, Alabama Agricultural and Mechanical University, etc. There is, obviously, a close working-relationship between the AETC and its program production centers. However, since they are separate entities, petitioners' claim that the AETC is responsible for assuring that their production centers do not discriminate is not [*513] well founded. Clearly, the AETC cannot dictate to any independent organization, whether it be one of its program production centers, the NET, or some other separate entity, what their employment policies and practices should be. Also, our rules have no applicability whatsoever to the AETC's program production centers.
45. Our action here today, in effect, disposes of the Brown-Wright and Edwards petitions for reconsideration. The matters set forth in the Edwards petition and the relief sought have been considered in the issues we have adopted.
46. In view of the foregoing, IT IS ORDERED, That the petition for reconsideration filed by Anthony Brown and William D. Wright IS DISMISSED. n6
n6 See, however, 47 C.F.R. 1.223 which provides, in substance, that any party in interest desiring to participate in any hearing may file a petition for leave to intervene. See, also, 47 C.F.R. 1.225, which pertains to participation by non-parties.
47. IT IS FURTHER ORDERED, That the petition for reconsideration filed by Reverend Eugene Farrell, Linda Edwards and Steven Suitts, to the extent indicated above, IS GRANTED, and, in all other respects, IS DENIED.
48. IT IS FURTHER ORDERED, That our action of June 24, 1970, granting the Alabama Educational Television Commission's license renewal applications for Stations WAIQ(ED-TV), WBIQ (ED-TV), WCIQ (ED-TV), WDIQ (ED-TV), WEIQ(ED-TV), WFIQ(ED-TV), WGIQ(ED-TV), and WHIQ(ED-TV) IS HEREBY RESCINDED.
49. IT IS FURTHER ORDERED, That, pursuant to Section 309(e) of the Communications Act of 1934, as amended, the Alabama Educational Television Commission's above-captioned applications ARE DESIGNATED FOR HEARING, at a time and place to be specified in a subsequent Order, upon the following issues:
(1) To determine whether the Alabama Educational Television Commission has followed a racially discriminatory policy in its overall programming practices.
(2) To determine whether the Alabama Educational Television Commission has broadcast programming serving the needs of Alabama's citizens.
(3) To determine the extent of efforts being undertaken by the Alabama Educational Television Commission to develop programming to serve the needs of Alabama's citizens.
(4) To determine whether the Alabama Educational Television Commission has made reasonable and good faith efforts to assure equal opportunities in its employment policies and practices in accordance with Section 73.680 of the Commission's Rules.
(5) To determine whether, in light of the evidence adduced pursuant to the foregoing issues, a grant of the Alabama Educational Television Commission's above-captioned applications would serve the public interest, convenience and necessity.
50. IT IS FURTHER ORDERED, That Reverend Eugene Farrell, Linda Edwards, and Steven Suitts are made parties to the hearing ordered herein.
[*514] 51. IT IS FURTHER ORDERED, That, in accordance with Section 309(e) of the Communications Act of 1934, as amended, the burden of proceeding with the introduction of evidence and the burden of proof shall be upon the Alabama Educational Television Commission as to issues 1, 2, 3 and 4; and that the petitioners and then the Broadcast Bureau shall follow with any evidence in their possession relevant to those issues. Issue 5 is conclusionary.
52. IT IS FURTHER ORDERED, That, to avail themselves of the opportunity to be heard, the Alabama Educational Television Commission and petitioners Reverend Eugene Farrell, Linda Edwards and Steven Suitts, in person or by attorney, shall, within twenty (20) days of the mailing of this Order, file with the Commission, in triplicate, a written appearance pursuant to Section 1.221(e) stating an intention to appear on the date set for the hearing and present evidence on the issues specified in this Order.
53. IT IS FURTHER ORDERED, That, pursuant to Section 311(a)(2) of the Communications Act of 1934, and Section 1.594 of the Commission's Rules, the Alabama Educational Television Commission shall give notice of the hearing within the time and manner prescribed in Section 1.594 and thereafter advise the Commission of the publication thereof as required by said rule.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCURBY: BURCH; JOHNSON (IN PART)
CONCURRING STATEMENT OF CHAIRMAN BURCH IN WHICH COMMISSIONER REID JOINS
I believe that some brief comments are appropriate. First, the delay in acting on the petitions for reconsideration was due in part to Commission efforts to resolve the issues between the parties (see par. 8, majority opinion). We had here, on the one hand, a statewide network of non-commercial educational stations that renders important and needed service and, on the other hand, responsible petitioners advancing in good faith their contentions. In the circumstances, the public interest might well have been best served by a resolution of the differences, as has occurred frequently in other recent renewal situations. However, there has been no such resolution, and the matter must therefore be ruled upon by the Commission in accordance with statutory precepts.
The Communications Act is clear as to these precepts. If "the Commission for any reason is unable to make the finding" that the "public interest, convenience and necessity" would be served by a grant, the Commission shall formally designate the application for hearing. See Section 309(a) and (e), 47 U.S.C. 309(a) and (e). The agency can exercise reasonable judgment in determining whether a particular case does present controverted factual issues such as to require a hearing. And understandably in view of burgeoning problems and limited staff resources, the agency may tend to exercise that judgment at times with one eye on the need to keep the agency functioning effectively. The courts, again understandably in view of their reviewing role, have tended to hold the Commission fairly strictly to the letter of the statutory provision for hearing. Thus, the Court has made [*515] clear that the Commission does not have leeway to ignore this statutory command on any grounds of "policy." See Office of Communication of the United Church of Christ v. FCC 123 U.S. App. D.C. 328, 359 F.2d 994 (C.A.D.C. 1966).
This then is the general statutory framework within which this case falls. In this case, there do appear to be unresolved questions of fact on several issues. Therefore, the hearing is required -- not as a penalty or punishment but simply because under the statutory scheme, these factual matters must be clarified before the Commission can properly make the public interest judgment called for in Section 307(d) of the Act. That is the purpose of our action taken today.
DISSENTBY: BARTLEY; JOHNSON (IN PART)
DISSENTING STATEMENT OF COMMISSIONER ROBERT T. BARTLEY
I dissent to rescinding the renewals and setting them for hearing.
The action is, in my opinion, a travesty on administrative finality. The renewals were granted on June 24, 1970. Two petitions for reconsideration were filed in July, 1970. Neither complied with Section 1.106(c) of our rules on petitions for reconsideration. Both should have been rejected forthwith.
After a year and a half, the Commission still makes no affirmative finding that the licensee is guilty of claims by the petitioners. To the contrary, the Commission concludes that (Paragraph 33), "The foregoing facts militate against a finding that AETC discriminated against blacks in its programming presentations." (Underscoring added). Petitioners charge that AETC deliberately excluded a number of NET programs on racial grounds. In its denial, AETC says the programs in question were deleted, not because they pertained to blacks, but because, in its judgment, they were offensive. Examples are listed in Paragraph 39 of the Order. The Commission makes no finding that the licensee acted unreasonably in the exercise of its judgment.
To the contrary, the Commission, in its Order, finds and concludes that, "the AETC has established one of the best noncommercial educational television networks in the United States; and, further, produces and broadcasts a large number of educational/instructional programming designed to improve the quality of education for Alabamians."
The majority, on flimsy grounds, rescind the renewals and set them down for a hearing. The reason given is that there are not enough facts before them to "provide sufficient information for the Commission to decide this aspect of the proceeding on the bases of the pleadings."
What is the licensee supposed to do -- make the petitioners' case? To me, this has the aspects of a "nuisance suit." I dissent.
Alabama Educational Television Reconsideration
(In re Renewal of licenses of Alabama Educational Television Commission)
I concur with the decision of the Commission to reconsider the renewal of these licenses, and to designate them for hearing.
[*516] I dissent as to the omission of issues which I believe to be of utmost importance -- unresolved allegations of racial discrimination in programming, hiring and serving the needs of the citizens of Alabama which have not been set for hearing.
I am also distressed by the tone of the majority's opinion. After reciting the holding of the first United Church of Christ case (Office of Communications of the United Church of Christ), 359 F. 2d 995, 1007-08 (D.C. Cir. 1966), the majority goes out of its way to emphasize what Judge (now Chief Justice) Burger relegated to only a footnote. In the opinion, Justice Burger recognized that the most significant criterion in deciding whether or not a renewal of a broadcast license is in the public interest is the licensee's performance during the previous license period. In footnote 28, at page 1008, he suggested that it might sometimes be appropriate for the Commission to "experiment" with promises of future service, but only after a licensee has "seen the error of its ways." The majority today holds out that footnote as a kind of carrot to goad the Alabama Educational Television Commission (AETC) contritely to admit its error and promise to do better in the future. The Commission even adds this future promise as an issue. Yet all of this takes place in the face of fervent denials by the licensee of any wrong-doing. In my view, suggesting that contrition justifies experimentation when we have seen no evidence of voluntary recognition of any wrong-doing is a totally inappropriate action for an impartial Commission to take at this early stage of the proceeding.
Were this all that is involved, I would undoubtedly simply concur. But three other issues are more troubling.
The majority states that the record thus far established militates against a finding that the AETC has followed a deliberate exclusionary pattern against blacks in its programming presentations. I cannot make that statement, either as a conclusion or as a presumption. The facts are in dispute. That is precisely why we have set the issue for hearing. To prejudge the outcome of this issue, or even to suggest that one result seems more likely than another, makes meaningless any further proceedings and seriously jeopardizes the integrity of any decision reached by the hearing examiner and ultimately this Commission.
The majority fails to add an issue on ascertainment of community needs. It notes that the Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 F.C.C. 2d 650 (1971), is applicable only to commercial broadcasters. It argues, "since we have not imposed ascertainment requirements on noncommercial educational broadcasters, we believe it would be inappropriate to designate the AETC's license renewal applications for hearing on a survey issue." The reasoning escapes me. It is true that noncommercial broadcasters are not bound by the survey requirements of the Primer; it is manifestly not true, however, that they therefore have no obligation to ascertain the needs and interests of the community they serve. They need not use the precise methods set out in the Primer, but there has never been any question that all licensees, including noncommercial broadcasters, have an affirmative duty to determine the needs and interests of their communities, and to program in such a way as to meet those needs. As we [*517] said in our 1960 Policy Statement on Programming, 20 P & F Radio Reg. 1901 (1960):
The confines of the licensee's duty are set by the general standard "the public interest, convenience or necessity." The initial and principal execution of that standard, in terms of the area he is licensed to serve, is the obligation of the licensee. The principal ingredient of such obligation consists of a diligent, positive and continuing effort by the licensee to discover and fulfill the tastes, needs and desires of his service area. If he has accomplished this, he has met his public responsibility.
This is a responsibility that extends to all licensees -- commercial and noncommercial alike. Thus, irrespective of the terms of the Primer, AETC has an affirmative obligation under the public interest standard of the Communications Act to ascertain and meet the needs of the communities its stations serve. In the light of allegations that it has failed to do so, the Commission nonetheless has decided not to include ascertainment as an issue in this hearing. At the same time that the majority fails to include past ascertainment, it demonstrates a concern about the relevance of ascertainment in general by including an issue on AETC's future ascertainment efforts. I cannot agree with this treatment, and regard it as yet another attempt to wash away the sins of the past with promises of the future.
I must dissent on another issue. Although the majority has designated the issue of discriminatory employment practices for hearing, it has absolved AETC from any responsibility for compliance with the equal employment opportunity rules (47 C.F.R. § 73.680) by the program production centers which, as independent contractors, provide roughly 40 hours of programming each week. It thus intends to permit the continued circumvention of our established policies by the use of these centers. I have reached no conclusions as to whether in fact these centers do discriminate in their employment practices. But the unwillingness of the majority even to address this issue (or rather, its affirmative efforts to remove this aspect of the already designated issue from consideration by the hearing examiner when the bulk of AETC programming comes from these sources) leaves open to doubt how one might ever correct whatever racial imbalance a hearing might show there to be in Alabama Educational broadcasting.
I am encouraged by the decision of my colleagues in designating these stations for hearing. My only concern is that we are not taking the opportunity -- or exercising our obligation -- to finally resolve the serious questions that have been raised about the operation of the AETC during the license period in question. Fairness to AETC, as well as petitioners, requires no less.