Retail Store Employees U., Local 880, RCIA v. FCC

• Decision Date: 27 October 1970
• Docket Number: No. 22605.,22605.
• Citation: 436 F.2d 248
• Parties: RETAIL STORE EMPLOYEES UNION, LOCAL 880, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

436 F.2d 248 (1970)

RETAIL STORE EMPLOYEES UNION, LOCAL 880, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.

No. 22605.

United States Court of Appeals, District of Columbia Circuit.

Argued October 24, 1969.

Decided October 27, 1970.

Mr. Joseph E. Finley, Washington, D. C., for appellant.

Mr. D. Biard MacGuineas, Counsel, Federal Communications Commission, for appellee. Messrs. Henry Geller, Gen. Counsel, Federal Communications Commission, John H. Conlin, Associate Gen. Counsel, and Bernard C. O'Neill, Jr., Counsel, Federal Communications Commission, were on the brief, for appellee. Mrs. Lenore G. Ehrig, Counsel, Federal Communications Commission, also entered an appearance for appellee.

Before BAZELON, Chief Judge, and ROBINSON and ROBB, Circuit Judges.

BAZELON, Chief Judge:

This is an appeal, 47 U.S.C. § 402(b) (6), from a memorandum opinion and order of the Federal Communications Commission renewing without hearing the broadcasting license of Radio Station WREO of Ashtabula, Ohio, over the protest of Retail Store Employees Local 880 (Union).¹ We conclude that the Commission has failed to demonstrate adequate consideration of issues of substantial public importance, and accordingly remand the case to the Commission for further proceedings.²

I.

This case arises out of a labor-management dispute not involving WREO. Hill's Department Store of Ashtabula, Ohio, (Hill's Ashtabula) is one of a chain of such stores in northeastern Ohio and southwestern Pennsylvania operated by the Shoe Corporation of America. In April 1965, appellant Union was certified by the National Labor Relations Board as the bargaining agent for employees of Hill's Ashtabula.³ Late in that year or early in the next,⁴ after some months of bargaining, the Union determined to seek its objectives by going on strike. Hill's Ashtabula was struck, and a boycott beginning there spread to other Hill's stores in the area, including Youngstown, Warren, and Sandusky, Ohio.

During this period, Hill's regularly purchased radio air time for advertising. Although no samples of Hill's advertisements are before us, the parties are agreed that the advertising was standard commercial copy, extolling the virtues of Hill's stock, bargains, and service, and on that basis urging listeners to patronize the various Hill's outlets. Seventy such announcements were run by WREO between January 10 and February 22, 1966. Similar copy was carried by stations WFMJ of Youngstown, WHHH of Warren, and WLEC of Sandusky. Beginning in February, 1966, the Union undertook to support its boycott by purchasing time for one-minute spot announcements stating that a strike was in progress against Hill's Ashtabula, and urging listeners to respect the picket lines at that and the other Hill's Department Stores.⁵ Three hundred and twenty-two such announcements were carried by WREO between February 16 and April 7, 1966. In addition, WFMJ of Youngstown carried two such spot announcements (both on March 22), and WLEC of Sandusky carried one hundred and seventy such announcements from February 23 through March 28.⁶ WHHH of Warren, Ohio, although approached by the Union, refused to accept any of the Union's advertisements upon the advice of its counsel that "no fairness question was presented"⁷ and that the station was therefore not compelled to run the proffered advertisements.

As the spring wore on, however, the Union experienced more and more difficulty in purchasing air time for its advertisements. Despite continuing attempts by the Union, through an advertising agency, to purchase further time, by early April of 1966 it could find no station serving the area around Ashtabula willing to run its advertisements. Apparently the last of the stations to cancel was WREO of Ashtabula, which on April 5 wrote the advertising agencies representing the Union and Hill's Ashtabula to inform them that WREO "would accept no further commercial copy from either party concerning the strike between Hill's and the union."⁸ Subsequently, after counsel for the Union informed WREO that he had filed a complaint regarding this action with the FCC, the station on April 22 offered free time to both parties for a single "round table discussion" of the issues presented by the strike.⁹ This offer was never accepted by either party.

Some time in April, the Union filed complaints with the FCC, charging "various Ohio and Pennsylvania radio stations"¹⁰ (including WREO) with violations of the fairness doctrine. The Commission, in an unreported letter of April 29, 1966, "found no controversial issue of public importance involved in the factual situation and * * * pointed out that a broadcaster is not a common carrier in the sense that he must accept advertising from all comers. * * *"¹¹ About the same time, the Union formally charged Hill's with a violation of the National Labor Relations Act for exerting economic pressure against some of these radio stations to persuade them to cancel the Union's advertising. This charge was ultimately rejected by the National Labor Relations Board's Office of Appeals on March 14, 1967.¹²

In the meantime, WREO continued to broadcast advertisements for Hill's Ashtabula. One hundred and twenty-three announcements and six-sponsored programs were run during the month of April, and from April 1 to the end of the year, the station broadcast 1,088 spot announcements, 176 sponsored programs, and fourteen sponsored one-third segments of football games on behalf of the store.¹³ Similarly, it appears that advertising on behalf of Hill's continued to be broadcast by WFMJ, WHHH, and WLEC.¹⁴ Accordingly, on August 9, 1967, the Union filed with the FCC unverified¹⁵ petitions to deny renewal of the licenses of stations WFMJ, WHHH, WLEC, and WREO. The petitions alleged that the stations had succumbed to economic pressure from Hill's and therefore cancelled the Union's strike advertising; and that, in any event, refusal to carry advertising by the Union while continuing to carry advertising from Hill's urging listeners to patronize its stores was a violation of the fairness doctrine. The FCC wrote each of the affected stations inquiring, inter alia, why Union advertising had been rejected.¹⁶ After receiving replies to its inquiry,¹⁷ the Commission in a memorandum opinion and order¹⁸ denied the Union's petitions regarding WFMJ, WHHH, and WLEC. The Commission, apparently relying upon its letter to the Union of April 29, 1966,¹⁹ found no fairness question presented. With regard to the Union's charges of economic pressure, the Commission noted that similar charges had been rejected by the National Labor Relations Board after investigation;²⁰ that each of the three stations had categorically denied that any such pressure had been exerted against them; and that the Union had provided no specific allegations of particular economic pressure exerted against any of the stations.²¹ Accordingly, the Commission denied the petitions and granted the stations' request for renewal.²² No appeal was taken from that decision.

Action on the Union's petition regarding WREO was deferred pending "further inquiries" by the Commission.²³ Subsequently, the Commission wrote the Manager of Hill's Ashtabula requesting a statement regarding "your part, if any" in the controversy between the Union and WREO, and asking him to state "whether Hill's, or any of Hill's employees or agents, at any time during 1966 sought to influence WREO directly or indirectly to cancel spot announcements by Local 880 concerning the Ashtabula strike."²⁴ The manager replied that no such efforts had been made by the store.²⁵ In addition, the Commission requested further information from WREO regarding its "policy" decision to cancel the Union's advertising, and regarding a conversation between the station manager and Hill's advertising agency at which the agency representative had contended that "some of the ads of Local 880 were possibly illegal."²⁶

Shortly thereafter, WREO replied. It categorically denied that any agent of Hill's at any time during 1966 sought to influence WREO concerning the cancellation of the Union's advertising. It explained the conversation regarding the "possibly illegal" Union advertisements as an uninfluential, isolated remark made during the course of a normal sales call.²⁷ With regard to the station's decision to cancel the Union's advertising, the letter provided the following explanation:

WREO has been operating as an independently owned radio station since 1937. During these years we afforded the public a service compatible with good taste and minimal irritation. We never permitted ourselves to be influenced or coerced in the use of air time.

Our policy also has been to avoid airing private controversies since statements might be made of a possibly damaging nature to persons or businesses, and as a generality such controversies were of a private and not of a public interest.

WREO had carried about 322 of Local 880\'s announcements when it became apparent, from complaints of the public, that the continuous repetition of these partisan announcements had become an irritant to WREO\'s listening audience. The advertisements concerned a controversy in which the public and WREO were not a part of sic.

We therefore notified both parties that we would accept no more announcements concerning the strike.

The Union then sent a letter to WREO and stated that the public had a right to have information concerning this private labor dispute.

WREO bent over backwards then to offer the union free time on the air at a WREO sponsored round table to discuss the labor dispute with Hill\'s, so if there was any possible public interest the matter could be heard. The union did not accept this opportunity.

This response appeared to satisfy the Commission. On December 2, 1968, it released a Memorandum Opinion and Order²⁸ in which it found "no unresolved questions of fact...