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In Re Applications of GREAT TRAILS BROADCASTING CORP. For Renewal of License for

Stations WCOL and WCOL-FM, Columbus, Ohio


File Nos. BR-291 BRH-410




39 F.C.C.2d 39




November 15, 1972 Released


 Adopted November 8, 1972





 [*39]  1.  The Commission has before it for consideration (1) the above captioned license renewal applications, filed by Great Trails Broadcasting Corporation (licensee); (2) a petition to deny the applications, filed August 31, 1970, by a number of persons individually and as agents for various organizations in Columbus, Ohio; (3) the licensee's opposition to the petition to deny, filed September 9, 1970; (4) petitioner's October 12, 1970, reply to the licensee's opposition; and, (5) a letter, filed October 23, 1970, on behalf of the licensee of Stations WCOL and WCOL-FM.

2.  The petitioners describe themselves as individuals and community groups concerned with the protection of the rights and advancement of the interests of Black persons as well as the interests of the entire community.  Petitioner Columbus Broadcasting Coalition, is a coalition of these groups working to improve the responsiveness of Columbus broadcasters to the Black community.

3.  Petitioners state that the Great Trails Broadcasting Corporation (hereinafter referred to as "Great Trails") has failed to adequately ascertain the needs and interests of the Columbus Black community.  They state that Great Trails' use of Welcome Wagon surveys in its ascertainment process is an example of the manner in which Great Trails denies less affluent Black residents a voice because the "Welcome Wagon operates basically in the upper middle income Anglo-Saxon areas." Petitioners further state that Great Trails has not sought the opinions of "the actively progressive Black community," and that Great Trails "does not understand that all Black people are not represented by the Urban League or other such 'civil rights' organizations."

4.  Petitioners next state that Great Trails has failed to recognize the cultural needs of the Black community.  They state that during negotiations, the management of Station WCOL said that the station wanted all disc jockeys "to have the same sound," and that this requirement that all announcers speak in the "white middle class way"  [*40]  denies "Black Americans an opportunity to become involved in what might be called the most dynamic of all communications methods which influence the early and mid-teens of this country." Petitioners also state that the news presented on Station WCOL is inadequate and discriminatory.  They state that more time is spent "telling 'about' the news" and on advertising than on actual news presentation; that identification by race on newscasts is limited to Black offenders, and that white children are treated with greater warmth and endearment than Black children on newscasts.  In conclusion, petitioners state that the foregoing raises substantial and material questions of fact as to whether renewal of license for Stations WCOL and WCOL-FM would serve the public interest and, therefore, assert that a hearing on the renewal applications is required.

5.  In its opposition, Great Trails initially states that many of the statements in the petition to deny are broad generalities which are incapable of a response.  Nevertheless, with regard to its community survey, Great Trails states that six representatives of Black organizations were interviewed by its personnel.  The licensee also states that the Welcome Wagon surveys were only a part of its ascertainment process and that it conducted a mail survey directed to all socio-economic classes of the community in proportion to each classes' presence in the community.  Great Trails also states that its community survey revealed problems in the community directly related to the groups petitioners claim to represent, including racial relations, housing, job training, drugs and disease, and mass transportation.  Great Trails denies that it has a policy of excluding voices which are not white and middle class.  The licensee states that individuals of varying backgrounds, races, and religions are presented by the stations, and that the stations presently employ Black announcers.  n1 Further, with regard to its newscasts, Great Trails denies any policy or pattern of identifying by race Black persons "alleged to have committed some offense against the white sociological order" or of treating Black children with less warmth or endearment than white children.  The licensee also points out that no examples of such conduct accompanies the allegations in the petition to deny.  Affidavits of employees of Station WCOL attesting to the lack of the alleged policies discriminating against Black persons are included in the response.  Great Trails also details the public affairs programming which it has presented, including programs discussing the Vietnam war, student opinion on various topics, alcoholism, venereal disease, racial relations, and other topics.  Great Trails also submits texts of many public service announcements involving organizations within the Black community which it has presented. 


n1 One of WCOL's news editors and two of its four disc jockeys are Black.

6.  In reply, petitioners include an affidavit of Miss Shirley Wiley, one of the six Black persons Great Trails stated in its response was interviewed in the community survey, stating that she was never interviewed "in regard to the ascertainment of Community needs and interests." Furthermore, petitioners state that even with Black persons who were interviewed, there was only a "one shot interview," never a continuing dialogue with the station.  The petitioners characterize the  [*41]  programs presented by Great Trails dealing with the Viet Nam war, brotherhood, urban problems, racial relations, drugs, etc., as "racial tokenism" inadequate to alleviate the frustration of Blacks and inadequate to dispel long-standing racial prejudices.  Petitioners further state that Great Trails discriminates against Blacks in pay, promotion, and employment conditions, stating that during the first one-third of the expiring license period, Great Trails had no Black employees, and even now, it has only eight percent Black employees.  Petitioners also state that Great Trails does not seek good public relations in the Black community.  As examples, they cite what they consider the hostile attitude of the manager of Station WCOL to Mr. Tony Rocciano, Coordinator of the Columbus Broadcasting Coalition, and failure of the station to give news coverage to activities of the Reverend Johnny Bryant's church, a WCOL advertiser.  In conclusion, the petitioners again request that the renewal applications be designated for hearing.

7.  In a letter dated October 23, 1970, Great Trails replied to what they considered a new charge raised in petitioners' reply -- the issue of whether or not Miss Shirley Wiley was interviewed for the community survey.  Attached to the letter was an affidavit of Collis A. Young, the general manager of Stations WCOL and WCOL-FM, stating that the employee who interviewed Miss Wiley is no longer employed by the station, but that a survey form indicates that Miss Wiley was interviewed by the former employee on April 6, 1970.

8.  Section 309(d)(1) of the Communications Act of 1934, as amended, 47 U.S.C.   309(d)(1), provides for a hearing on an application where specific allegations raise a substantial and material question of fact sufficient to show that a grant of the application would be prima facie inconsistent with the public interest, convenience and necessity.  Petitioners, as the foregoing statement of facts discloses, have raised three separate charges concerning Great Trails' operation of WCOL-AM and WCOL-FM.  We note at the outset, however, that the discussion in petitioners' pleadings is only directed at Great Trails' operation of WCOL-AM.  We find, therefore, that petitioners' pleadings do not raise any issues regarding Great Trails' operation of WCOL-FM.  Accordingly, petitioners' petition to deny, insofar as it relates to WCOL-FM's license renewal application, will be denied on the basis of its pervasive lack of specificity.

9.  Similarly, petitioners' pleadings, insofar as they relate to Great Trails' operation of WCOL-AM, are also characterized by general allegations and are devoid of any specific facts.  As indicated above, to merit a hearing under Section 309(d), petitioners must go beyond mere generalizations and allege some specific facts sufficient to show that a grant of the application under consideration would be prima facie inconsistent with the public interest.  Thus, petitioners' petition to deny WCOL-AM's license renewal application also warrants summary denial because of its pervasive lack of specificity.

10.  Petitioners charge Great Trails with conducting an inadequate community survey.  Examination of Section IV of WCOL's application shows that the applicant compiled a profile or demographic study of its service area.  This study included data on such matters as projected county populations for the Columbus market, racial statistics,  [*42]  age distribution within the area, industry employment, income distribution, characteristics of the labor force, and school and university registration data.  The application also listed the name, location, and chief executive officer of approximately 300 civic, social and professional organizations.  In compiling its general audience survey, Great Trails mailed 550 questionnaires to to persons in four socio-economic groups ("upper" (5%), "above average" (15%), "average" (52%), and "below average" (28%).) The number of questionnaires directed to each group was in proportion to that group's representation in the Columbus area.  Thus, 28 questionnaires were directed to individuals in the upper socio-economic group, 82 to persons in the above average group, 286 to people in the average bracket, and 154 to individuals in the below average group.  The selected citizens were asked their opinions regarding the significant needs and problems of Columbus and how these problems could be dealt with.  In addition.  Welcome Wagon representatives, in cooperation with WCOL, conducted daily radio surveys throughout the year.  Approximately 12,000 people per year were contacted in this fashion.  The Welcome Wagon representatives mailed their reports to the station on a daily basis.  Finally, management level personnel of Great Trails personally interviewed 103 citizens active in various civic, educational and eleemosynary organizations.  Of this number, five or six interviewees (depending on whether Miss Wiley is included) were affiliated with "Negro-oriented groups." In addition to persons connected with Black groups, Great Trails asserted that it consulted a number of Blacks who were active in organizations which were not specifically Negro-oriented.

11.  The Commission requires a bona fide effort by broadcast licensees to inform themselves of community problems through consultations with a cross-section of community leaders and a random sample survey of members of the general public.  Here, the licensee has developed the demographic composition of the area its stations serve, determined the groups representative thereof and interviewed leaders of those groups.  The licensee has also conducted a general public survey, has analyzed and evaluated the problems ascertained through these surveys and has proposed programming designed to meet these problems.  It is, therefore, concluded that Great Trails has established that it is aware of the problems of the area to be served and that it will program its stations to meet these problems.

12.  When a thorough community survey -- such as the one presented here -- has been conducted, more than general disagreements as to the methodology utilized and the conclusions reached is necessary to form the basis of a prima facie case for denial of a license renewal.  As we have held in the past, the proposition that a community survey must mirror the exact racial makeup of the community must be rejected.  Universal Communications Corporation, 29 FCC 2d 1022, 1026 (1971). Rather, we require licensees to interview a broad cross-section of community leaders, including minority group leaders.  Great Trails, as disclosed above, has done so in this case.  Further, notwithstanding the fact that the purpose of the interview with Miss Wiley may not have been made entirely clear, we do not believe that one deficient interview renders an otherwise valid survey unacceptable.  Additionally, the technique utilized by Great Trails of a socio-economic apportionment  [*43]  or recipients of its general public survey appears to us meritorious, not deficient.

13.  Petitioners also charge Great Trails with discriminatory programming practices and with a failure to program for Columbus' black community.  Initially, we note that petitioners' allegations that the stations' newscasts were inadequate and discriminatory are conclusory in nature and unsupported by specific examples.  Great Trails, on the other hand, states that it has express policies in this area to the contrary and there is nothing to indicate that these policies are not followed.  Furthermore, as the foregoing facts reveal, Great Trails, during the license period expiring October 1, 1970, did present programming concerning problems in the Columbus community, including programming relevant to Columbus' minority community.

14.  For instance, Great Trails has presented several vignettes concerning problems which it determined to be of local importance during its past license term.  By way of example, Great Trails presented vignettes entitled "Legal Tips," featuring material from the Franklin County Legal Aid and Defenders Association, and "Brotherhood," featuring material promoting racial harmony, each of which were presented approximately 50 times per month during seven months in 1969.  Similar programs dealing with health and school drop-out problems were also aired.  A series on cultural history discussed the careers and contributions of many Black-Americans, e.q., George Washington Carver, W. C. Handy, Ralph Bunche, Louis Armstrong, Ethel Waters, Garrett Morgan, John Hope Franklin, Sidney Poitier, and Whitney Young.  WCOL also presented "Ohio State University Forum," a weekly 30-minute program presenting Ohio State University faculty and special guests discussing varied topics of current interest, and "The Place," a 30-minute program featuring 25 Columbus students who discuss such topics as drugs, marriage, military service, human welfare, etc., using music for emphasis.  In the current renewal applications, Great Trails states that WCOL will present "Drugs," a program warning listeners about the dangers of narcotics; "Education," a program encouraging students to remain in or return to school, and "Cultural History," a program highlighting the history of various racial groups in Columbus by noting contributions to society by members of those groups.  "Ohio State University Forum" and "The Place" will continue to be aired on WCOL.

15.  Upon the basis of the above facts, the Commission is of the opinion that adequate reasons have not been advanced to justify designating Great Trails' license renewal applications for hearing on programming issues.  As noted in Chuck Stone v. Federal Communications Commission, D.C. Cir., No. 71-1166, Slip Opinion pp. 18-21 (June 30, 1972):

How a broadcast licensee responds to what may be conflicting and competing needs of regional or minority groups remains largely within its discretion.  It may not flatly ignore a strongly expressed need; on the other hand, there is no requirement that a station devote twenty percent of its broadcast time to meet the need expressed by twenty percent of its viewing public.  Until this problem is addressed in a rule-making procedure, the scope of FCC review remains whether or not the licensee has reasonably exercised its discretion.

 [*44]  As the Court further noted:

The Commission found, and we agree, that plaintiffs' objections here lack the requisite specificity.  They are largely conclusory and in most instances are not tied to specific programming deficiencies.  Where they are so tied, they fail to indicate whether non-blacks are accorded different, more positive treatment.  For plaintiffs simply to object to the quality of WMAL-TV's programming in general and conclusory terms offers the Commission little assistance in terms of the guidelines which it requires to implement policy changes.  Furthermore, such generalized criticisms run the risk of turning the FCC into a censorship board, a goal clearly not in the public interest.  Of course, there must exist in this area a delicate balance between the maintenance of a free competitive broadcast system and reasonable restrictions on such freedom in the public interest, in view of the scarcity of airwaves for broadcasting.  In the absence of a competing broadcast application situation, where a hearing is required, plaintiffs bear a substantial burden of specificity, a burden they have not met in the case at bar.

16.  Petitioners also charge Great Trails with discriminatory hiring practices.  In so doing, however, petitioners have merely noted that Great Trails only employs eight percent blacks on its staff.  As we stated in The Evening Star Broadcasting Company (WMAC-TV), 27 FCC 2d 316 (1971); affirmed sub nom. Chuck Stone v. Federal Communications Commission, D.C Cir. Case No. 71-1166, June 30, 1972, rehearing denied September 1, 1972, simply indicating the number of minorities employed by a licensee, without citing specific instances of discrimination or a conscious policy of exclusion, is insufficient grounds to require an evidentiary hearing.  Furthermore, while an extremely low rate of minority employment may raise questions requiring appropriate administrative inquiry, as noted by petitioners eight percent of Great Trail's staff is composed of minorities.  We are of the opinion that this minority employment profile is within a range of reasonableness when considered in conjunction with the minority population in the Columbus standard metropolitan statistical area, which is 11.6 percent black. 1970 Census, General Population Characteristics, PC (1)-B Series (October 1971).  Moreover, striving for a certain "sound" is not equivalent to discrimination against members of some racial groups.  As noted above, WCOL presently employs two black announcers.  We conclude, therefore, that the pleadings in this case do not establish any substantial and material questions of fact regarding Great Trails' employment practices.


17.  Section 309(d) of the Communications Act provides for the grant of a license renewal application where the Commission finds, after full consideration of all pleadings, that there are no substantial and material questions of fact and that a grant of the application would be consistent with the public interest.  Section 309(d) also provides that where a petition to deny is filed it must contain specific allegations of fact sufficient to show that a grant of the application would be prima facie inconsistent with the public interest.  Where the Commission finds that such a showing has not been made, it may deny, the petition.  Accordingly, based upon our review of Great Trails' renewal applications and all the pleadings filed in this proceeding, we find that the Columbus Broadcasting Coalition has failed to raise a  [*45]  substantial and material question of fact which establishes a prima facie case for denial of WCOL-AM-FM's licenses.  We also find that a grant of Great Trial's license renewal applications for WCOL and WCOL-FM would serve the public interest, convenience and necessity.

18.  In reaching our conclusions, we are not unaware of the concern being expressed by the Columbus Broadcasting Coalition and other minority groups about the responsiveness of the broadcast media to their problems.  Hence, we note with concern the fact that petitioners herein have filed petitions to deny the license renewal applications of a number of stations located in Columbus, Ohio.  We also note with concern that similar petitions have been filed against many other stations in cities other than Columbus.  The Commission, of course, cannot waive or ignore the pleading standards set forth in Section 309(d) to accommodate petitioners.  Clearly, if members of the public choose to wait until the end of a license term and then petition to deny renewal of license, they must meet the strict requirements of Section 309(d).  This does not mean however that members of the public are left without the means to improve local broadcast service.  We have found that cooperation at the local level is the best and most effective method of resolving local problems and improving local service.  Accordingly, we wish to reaffirm our prior expression of policy approving community-broadcaster discussions throughout the license term.  Obviously, while under an obligation to ascertain and program for community problems, no broadcaster can be aware of everyone's needs all the time.  Therefore, interested citizens who feel a stations' performance is inadequate should so advise the broadcaster to provide him the opportunity to consider their ideas and suggestions.  Such discussions will, of course, be more effective if conducted throughout the license term and not only at renewal time.  Such was not the case herein.

19.  In view of the foregoing, IT IS ORDERED, That the petition to deny filed by the Columbus Broadcasting Coalition IS DENIED.

20.  IT IS FURTHERED ORDERED, That the above-captioned license renewal applications for Stations WCOL and WCOL-FM, Columbus, Ohio, filed by Great Trails Broadcasting Corporation, ARE HEREBY GRANTED.









In Re: Renewal Proceedings in Youngstown and Columbus, Ohio.

I concur with the majority on these cases insofar as its holding that the petitions to deny filed by the respective community groups do not attain -- or candidly, even proximately attain -- the procedural standard of specificity mandated by the Communications Act.  n1 It is a hackneyed, but nonetheless true, legal bromide that bad cases make bad law.  Vague invective and wide-brush critique in a legal pleading requiring factual precision provides the (justifiably) ideal jurisdictional basis for dismissal.  Interested parties must dig deep, make the effort to pinpoint and factually support the exact abuses of which they complain so as to render summary rejection, with attention loss of credibility, illegal if not impossible. 


n1 Specifically, 47 U.S.C.   309(d)(1).  It must be conceded that Congress intended a strict standard when amending the statute to permit petitions to deny.  Congress expected:

"... a substantially stronger showing of a greater probative value than is necessary now in the case of a post grant protest.  The allegations of ultimate, conclusionary facts or mere general affidavits... are not sufficient." S. Report No. 690, 86th Cong., 1st Session, p. 3 (1959).

See Stone v. F.C.C., Case No. 71-1166 (D.C. Cir. June 30, 1972).  But see, Marine Space Enclosures, Inc. v. FMC, 137 U.S. App. D.C. 9, 18 (Note 22) (1969) where the court observed that "[Procedural] requirements depend in part on the importance of the issues before the agency."

My point of departure and dissent from my colleagues stems from the fact that the perceived deficiencies in the petitioners' pleadings eliminates only inadequate petitioners from the renewal byplay -- it in no way eliminates the Commission itself.  As the principal monitors of broadcaster performance, we have the main statutory duty to investigate licensee activities; especially when confronted with earnest complaints from the neighbors.  The Commission frequently acts on  [*49]  its own volition in withholding renewals when it suspects delinquencies.  It should not stand behind a procedural barrier on the apparent side of a licensee and let the matter ride simply because a complainant is without the assiduity, resources or legal acumen to mount a perfect attack.  n2 Rather, the Commission should be on all sides looking critically in; not at the quality of the complainants' performance -- we do not license complainants -- but at the activities of the station.  n3


n2 That the Commission need not depend solely on the procedural sufficiency of denial petitions in determining the propriety of license renewal is clearly enunciated in 47 U.S.C.   307. In pertinent parts, that Section provides that the Commission "may officially notice" (  307(d)(2)) facts and circumstances and if the Commission is "for any reason unable to make the [public interest, convenience and necessity] finding specified... it shall formally designate the application for hearing on the ground or reason then obtaining".  It is axiomatic that before the Commission can find "any reason" it must first look.

n3 For an astringent reminder of the Commission's appropriate role in these renewal triangles, see Judge Burger's opinion in Office of Communications of the United Church of Christ v. F.C.C., 138 U.S. App. D.C. 11, 425 F. 2d 543 (1969).

Accordingly, while I don't believe the Commission's action here is wholly unwarranted, it certainly could have gone further in fulfilling its own statutory function in these cases.


A number of concerned citizens -- individually and as agents of various community organizations in Columbus, Ohio -- brought a petition to deny the license renewals of stations WCOL (AM & FM).  The Black Broadcasting Coalition (BBC) brought a petition to deny the license renewals of stations WBBW (AM & FM) in Youngstown, Ohio.  Both petitions charge that the challenged stations have failed adequately to ascertain their community's needs and that they have discriminated against various minority groups in both their programming and employment practices.

If true, these claims would surely indicate that these stations have failed to serve the public interest.  See, e.g., Primer on Ascertainment  [*46]  of Community Problems by Broadcast Applicants, 27 FCC 2d 650 (1971); Radio Station WSNT, Inc., 27 FCC 2d 993 (1971); Nondiscrimination Employment Practices of Broadcast Licensees, 13 FCC 2d 766 (1968), 18 FCC 2d 240 (1969), 23 FCC 2d 430 (1970). However, by holding that the pleadings of these petitioners have failed to raise "substantial or material questions of fact" sufficient to show that a grant of these renewals would be prima facie inconsistent with the public interest the majority -- with a casual were of its collective hand -- simply brushes these objections aside and grants the renewals.

Under the majority's Draconian approach to our vague, yet stringent pleading rules, these petitioners never really had a chance.  I dissent.

In Stone v. Federal Communications Commission,     F. 2d     (D.C. Cir. 1972), 24 RR 2d 2105 (1972), the D.C. Circuit held that, under   309(d)(1) of the Communications Act of 1934, a petition to deny a licensee's renewal application does not mandate an evidentiary hearing unless that petition contains specific allegations of fact sufficient to show that a grant of the application would be prima facie in consistent with the public interest.  Like the FCC, the Court merely parroted the language of the Act -- failing to elucidate on the sort of allegations required.

As a result, the majority today -- as it has done repeatedly in the past -- leaves in total darkness those citizens who are concerned enough about the state of broadcasting in their communities to challenge a station's renewal application.  These selfless citizens just keep filing their renewal challenges and the majority -- after some perfunctory analysis -- just keeps telling them that their pleadings have failed to meet the requisite specificity.

Absent a clearer definition of precisely what that specificity "test" demands, I would think that -- if we are truly interested in ensuring that our licensees are "serving the public interest" (a phrase upon which the majority has also consistently declined to elaborate) -- we would at least give these challengers an opportunity to amend their complaints.  See my dissent in Letter to George Corey,     FCC 2d     (1972).  Absent such procedural flexibility, we are confronted with a pure adversary proceeding where the licensee's lawyers are pitted against the challengers -- challengers who do not seek either control or ownership of the station, but whose sole desire is that the broadcaster better serve its community's needs.  In such a system, the licensee will invariably win; but the public interest can only lose.

In such circumstances, I should think that this Commission -- whose goals are, at least in theory, rather congruent with those of these and other challengers -- could do better to help serve the public interest by making a greater effort to determine the truth.

For example, the BBC argues that, in ascertaining its community's needs, the Mahoning Valley Broadcasting Corporation, WBBW's licensee, failed to consult with any members of the community's Spanish-speaking minority -- a minority which, according to the BBC, constitutes 8% of the population.  This allegation is nowhere denied by the licensee.  Yet, the majority finds no problems with the licensee's ascertainment study.  Must the pleadings be more specific, or is the majority actually holding that a licensee need not consult with its community's minorities in ascertaining community needs?  Surely,  [*47]  the majority cannot be reaching the latter conclusion.  So, why doesn't it at least offer the petitioner some indication of the information it seeks?

In the case of WCOL, the petitioners charge the licensee with discriminatory hiring practices, something which our regulations specifically prohibit.  See Nondiscrimination Employment Practices of Broadcast Licensee, supra, and a problem we have sought recently to correct -- though in a rather chaotic, half-hearted manner.  See my separate statement in the Pennsylvania-Delaware Renewals,     FCC 2d     (1972), and the subsequent Pennsylvania-Delaware Equal Employment Opportunity Inquiries,     FCC 2d     (1972), and also in the Washington, D.C., Maryland, Virginia, West Virginia Letters of Inquiry, released this day.

The majority notes that the licensee's staff is 8% black and that this figure is "reasonable" given the fact that the community is 11.6% black.  Aside from this totally ad hoc, unsupported declaration, the majority does not even pause to inquire as to the positions held by these minority members, nor does the majority ask whether this 8% figure represents a reduction in the number of black employees at the stations between 1971 and 1972.

In Pennsylvania-Delaware Renewals, supra., the FCC agreed that a reduction in black employment during the last two years should arouse our suspicion and should thus warrant further investigation into a licensee's hiring practices.  Had the majority so inquired of Great Trails -- an inquiry which demands no more than a glance at the licensee's Annual Employment Report, Form 395 -- the majority would have discovered that while the station employed eight blacks in 1971 -- in both full and part time positions -- the station employed only seven in 1972.

Since the majority is obviously not going to investigate on its own, it should, at the very least, give the petitioners an opportunity to amplify their complaint.

Indeed, the majority has no problems permitting a licensee -- who should not need such favored treatment -- the right to amplify and to update its filings.  In response to petitioners' claim that Great Trails' efforts at ascertaining its community's needs for the coming years were inadequate, the majority suggests that Great Trails could amend its renewal applications pursuant to   1.522(a) of the rules, 47 CFR   1.522(a), by conducting a further ascertainment of community problems.

In Stone v. Federal Communications Commission, supra, the Court held that a licensee could, under   1.522(a), amend its ascertainment study prior to Commission scrutiny in a renewal proceeding.  However, the renewal applicant in that case had sought to amend its ascertainment study on its own motion, well before final Commission action on both the application and an opposing petition to deny.  The Court held only that new ascertainment efforts, at that stage of the proceedings, did not violate our policy against upgrading, on the theory that ascertainment is prospective in nature.

There is some question -- at least in my mind -- about whether the Stone court would reach the same result where a licensee does not, on its own, find any difficulties with its ascertainment survey, but,  [*48]  rather, submits that study to the Commission and rests.  In short, I am not convinced that just because an applicant is able to amend its ascertainment study prior to a Commission decision upon the merits of that survey, an applicant may amend its survey after the Commission has ruled it inadequate.  For, in the latter case, the licensee's stubborn refusal to consult properly with its community of service should, I would think, merit some form of disapprobation.

But, assuming that the majority is correct in its reading of Stone, I cannot see why that majority distinguishes so invidiously between a licensee's right to amend its ascertainment study and, hence, its renewal application, and the right of a concerned citizens' group to amplify its pleadings.  This sort of unequal treatment reveals, better than I could ever hope to accomplish, the majority's preference for our licensees at the public's expense.

If we are truly concerned about the failure of these petitioners to offer us the required specificity, then we ought to so advise them and then give them at least one opportunity to try again.  To do otherwise, especially while, at the same time, giving our licensees a second bite of the ascertainment apple, is not merely inequitable, and not merely contrary to the public interest which we are directed by Congress to protect -- it is simply outrageous.

I dissent.

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