359 F.2d 994 (D.C. Cir. 1966), 19409, Office of Communication of United Church of Christ v. F.C.C.

Docket Nº:19409.
Citation:359 F.2d 994
Party Name:OFFICE OF COMMUNICATION OF the UNITED CHURCH OF CHRIST, Aaron Henry, Robert L. T. Smith and United Church of Christ at Tougaloo, Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Lamar Life Broadcasting Company, Intervenor.
Case Date:March 25, 1966
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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359 F.2d 994 (D.C. Cir. 1966)

OFFICE OF COMMUNICATION OF the UNITED CHURCH OF CHRIST, Aaron Henry, Robert L. T. Smith and United Church of Christ at Tougaloo, Appellants,

v.

FEDERAL COMMUNICATIONS COMMISSION, Appellee, Lamar Life Broadcasting Company, Intervenor.

No. 19409.

United States Court of Appeals, District of Columbia Circuit.

March 25, 1966

Argued Dec. 3, 1965.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Mr. Orrin G. Judd, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Earle K. Moore, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, and Henry F. Lerch, Washington, D.C., and Mrs. Ann Aldrich were on the brief, for appellants.

Mr. John H. Conlin, Associate Gen. Counsel, F.C.C., with whom Messrs. Henry Geller, Gen. Counsel, and Howard Jay Braun, Counsel, F.C.C., were on the brief, for appellee.

Mr. Paul A. Porter, Washington, D.C., with whom Messrs. Reed Miller and Jamie Hunter, Washington, D.C., were on the brief, for intervenor.

Mr. Lawrence Speiser, Washington, D.C., filed a brief on behalf of American Civil Liberties Union, as amicus curiae, urging reversal.

Before BURGER, MCGOWAN and TAMM, Circuit Judges.

BURGER, Circuit Judge:

This is an appeal from a decision of the Federal Communications Commission granting to the Intervenor a one-year renewal of its license to operate television station WLBT in Jackson, Mississippi. Appellants filed with the Commission a timely petition to intervene to present evidence and arguments opposing the renewal application. The Commission dismissed Appellants' petition and, without a hearing, took the unusual step of granting a restricted and conditional renewal of the license. Instead of granting the usual three-year renewal, it limited the license to one year from June 1, 1965, and imposed what it characterizes here as 'strict conditions' on WLBT's operations in that one-year probationary period.

The questions presented are (a) whether Appellants, or any of them, have standing before the Federal Communications Commission as parties in interest under Section 309(d) of the Federal Communications Act 1 to contest the renewal of a broadcast license; and (b) whether the Commission was required by Section 309(e) 2 to conduct an evidentiary hearing on the claims of the Appellants prior to acting on renewal of the license.

Because the question whether representatives of the listening public have standing to intervene in a license renewal proceeding is one of first impression, we have given particularly close attention to the background of these issues and to the Commission's reasons for denying standing to Appellants.

Background

The complaints against Intervenor embrace charges of discrimination on racial

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and religious grounds and of excessive commercials. As the Commission's order indicates, the first complaints go back to 1955 when it was claimed that WLBT had deliberately cut off a network program about race relations problems on which the General Counsel of the NAACP was appearing and had flashed on the viewers' screens a 'Sorry, Cable Trouble' sign. In 1957 another complaint was made to the Commission that WLBT had presented a program urging the maintenance of racial segregation and had refused requests for time to present the opposing viewpoint. Since then numerous other complaints have been made.

When WLBT sought a renewal of its license in 1958, the Commission at first deferred action because of complaints of this character but eventually granted the usual three-year renewal because it found that, while there had been failures to comply with the Fairness Doctrine, the failures were isolated instances of improper behavior and did not warrant denial of WLBT's renewal application.

Shortly after the outbreak of prolonged civil disturbances centering in large part around the University of Mississippi in September 1962, the Commission again received complaints that various Mississippi radio and television stations, including WLBT, had presented programs concerning racial integration in which only one viewpoint was aired. In 1963 the Commission investigated and requested the stations to submit detailed factual reports on their programs dealing with racial issues. On March 3, 1964, while the Commission was considering WLBT's responses, WLBT filed the license renewal application presently under review.

To block license renewal, Appellants filed a petition in the Commission urging denial of WLBT's application and asking to intervene in their own behalf and as representatives of 'all other television viewers in the State of Mississippi.' The petition 3 stated that the Office of Communication of the United Church of Christ is an instrumentality of the United Church of Christ, a national denomination with substantial membership within WLBT's prime service area. It listed Appellants Henry and Smith as individual residents of Mississippi, and asserted that both owned television sets and that one lived within the prime service area of WLBT; both are described as leaders in Mississippi civic and civil rights groups. Dr. Henry is president of the Mississippi NAACP; both have been politically active. Each has had a number of controversies with WLBT over allotment of time to present views in opposition to those expressed by WLBT editorials and programs. Appellant United Church of Christ at Tougaloo is a congregation of the United Church of Christ within WLBT's area.

The petition claimed that WLBT failed to serve the general public because it provided a disproportionate amount of commercials and entertainment and did not give a fair and balanced presentation of controversial issues, especially those concerning Negroes, who comprise almost forty-five per cent of the total population within its prime service area; 4 it also claimed discrimination against local activities of the Catholic Church.

Appellants claim standing before the Commission on the grounds that:

(1) They are individuals and organizations who were denied a reasonable opportunity to answer their critics, a violation of the Fairness Doctrine.

(2) These individuals and organizations represent the nearly one half of WLBT's potential listening audience who were denied an opportunity to have their

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side of controversial issues presented, equally a violation of the Fairness Doctrine, and who were more generally ignored and discriminated against in WLBT's programs.

(3) These individuals and organizations represent the total audience, no t merely one part of it, and they assert the right of all listeners, regardless of race or religion, to hear and see balanced programming on significant public questions as required by the Fairness Doctrine 5 and also their broad interest that the station be operated in the public interest in all respects.

The Commission denied the petition to intervene on the ground that standing is predicated upon the invasion of a legally protected interest or an injury which is direct and substantial and that 'petitioners * * * can assert no greater interest or claim of injury than members of the general public.' The Commission stated in its denial, however, that as a general practice it 'does consider the contentions advanced in circumstances such as these, irrespective of any questions of standing or related matters, ' and argues that it did so in this proceeding.

Upon considering Petitioners' claims and WLBT's answers to them on this basis, the Commission concluded that

serious issues are presented whether the licensee's operations have fully met the public interest standard. Indeed, it is a close question whether to designate for hearing these applications for renewal of license.

Nevertheless, the Commission conducted no hearing but granted a license renewal, asserting a belief that renewal would be in the public interest since broadcast stations were in a position to make worthwhile contributions to the resolution of pressing racial problems, this contribution was 'needed immediately' in the Jackson area, and WLBT' if operated properly, 6 could make such a contribution. Indeed the renewal period was explicitly made a test of WLBT's qualifications in this respect.

We are granting a renewal of license, so that the licensee can demonstrate and carry out its stated willingness to serve fully and fairly the needs and interests of its entire area-- so that it can, in short, meet and resolve the questions raised.

The one-year renewal was on conditions which plainly put WLBT on notice that the renewal was in the nature of a probationary grant; the conditions were stated as follows:

(a) 'That the licensee comply strictly with the established requirements of the fairness doctrine.'

(b) '* * * That the licensee observe strictly its representations to the Commission in this (fairness) area * * *.'

(c) 'That, in the light of the substantial questions raised by the United Church petition, the licensee immediately have discussions with community leaders, including those active in the civil rights movement (such as petitioners), as to whether its programming is fully meeting the needs and interests of its area.'

(d) 'That the licensee immediately cease discriminatory programming patterns.'

(e) That 'the licensee will be required

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to make a detailed report as to its efforts in the above four respects * * *.'

Appellants contend that, against the background of complaints since 1955 and the Commission's conclusion that WLBT was in fact guilty of 'discriminatory programming, ' the Commission could not properly renew the license even for one year without a hearing to resolve factual issues raised by their petition and vitally important to the public. The Commission argues, however, that it is effect accepted Petitioners' view of the...

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