Office of Commun. of United Church of Christ v. FCC

• Decision Date: 20 June 1969
• Docket Number: No. 19409.,19409.
• Citation: 425 F.2d 543
• Parties: 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

425 F.2d 543 (1969)

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.

Reargued February 18, 1969.

Decided June 20, 1969.

Rehearing Denied September 5, 1969.

Mr. Earle K. Moore, New York City (except for Aaron Henry, On Rehearing), with whom Mr. Henry F. Lerch, Washington, D. C., and Mrs. Ann Aldrich, Cleveland, Ohio, were on the brief, for appellants.

Mr. Stuart F. Feldstein, Counsel, Federal Communications Commission, with whom Messrs. Henry Geller, General Counsel, and John H. Conlin, Associate General Counsel, Federal Communications Commission, were on the brief, for appellee. Mr. Howard J. Braun, Counsel, Federal Communications Commission at the time the record was filed, also entered an appearance for appellee.

Mr. Paul A. Porter, Washington, D. C., with whom Mr. Reed Miller, Dennis G. Lyons and Robert D. Rosenbaum, Washington, D. C., was on the brief, for intervenor.

Messrs. Peter L. Koff and 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.

Rehearing En Banc Denied September 5, 1969.

BURGER, Circuit Judge:

This case returns to the Court again after hearings held pursuant to an earlier opinion of this Court in which we directed that intervenors representing segments of the licensee's listening public were to be permitted to intervene and participate.¹ No additional intervenors thereafter sought to take part in the Commission proceedings.²

The action of this Court in remanding for hearings with listening-public intervenors taking part followed the Commission's 1965 action which granted the licensee a "probationary" one year license.³ This unusual Commission action underscored that in the proceedings involving the application for a three-year renewal (from 1964 to 1967) the Commission had not been able to conclude that the licensee met the burden of showing that renewal of its license for three years was in the public interest.

Following various complaints filed with it, in 1962 the Commission had initiated its own field investigation into the programming operations of certain Mississippi broadcast stations, including WLBT. This investigation precipitated a July 25, 1963, letter from the Commission requesting the licensee's comments on listed questions as to its programming policies and set forth some of the specific findings of the field investigation on these matters. The Commission's consideration of WLBT's reply was pending when the licensee filed an application for renewal of its license for the June 1, 1964 to June 1, 1967 period.

In reviewing these responses prior to its award of the one-year probationary grant, the Commission noted, inter alia:

The question is rather whether the licensee complied with the requirements of the fairness doctrine — i. e., whether, having presented one side of a controversial issue of public importance, it sought affirmatively to encourage and implement the presentation of contrasting viewpoints. The licensee\'s response is not fully satisfactory in this respect.

* * * * * *

In short, when a fairness complaint is made, a licensee relying upon network programs to balance local broadcasts has the burden of demonstrating that the network shows carried by it did present contrasting viewpoints to those expressed in the local broadcasts. That showing has not been made here.

Lamar Life Broadcasting Co., supra note 3 at 1146, 1147-1148 (emphasis added).

Moreover, in setting forth the specific conditions attached to its one-year probationary award, the Commission provided:

(iv) That the licensee immediately cease discriminatory programming patterns. Thus, it is up to the licensee to make the programming judgment whether or not to have a daily 1-minute devotional program at noon, in which appearances are rotated among the area churches in the area on the basis of race. Such a practice is obviously inconsistent with the public interest; indeed, we note that the licensee does not try to defend it.

Id. at 1154 (emphasis added).

In discussing the Commission's action we noted that the Commission had found that the licensee's prior conduct prevented the grant of a full term license.⁴

When the matter was again before the Commission on our remand, therefore, it was in a posture that the licensee had yet to demonstrate that it was in the public interest for the license to be renewed. This was a less favorable posture for the licensee than would have been the case absent the "probationary license" grant. This is important, but its significance seems to have eluded the hearing Examiner and the Commission as well; we emphasize this now to remove any lingering doubts as to our evaluation of a "probationary" grant — a grant which by its nature assumes that the renewal-licensee has been unable to persuade the Commission that it is presently in the public interest to grant a three-year renewal. That the Examiner failed to grasp this fact is reflected throughout his report and noticeably in his statement that

"the evidentiary hearing * * * presented Appellants ample and sufficient opportunity to come forward and sustain their serious allegations that they had made against the applicant. They have woefully failed to do so * * *."

Lamar Life Broadcasting Co., 14 F.C.C. 2d 495, 549 (1967) (emphasis added).

Since the Commission itself had previously found that some of these "serious allegations" were sufficient to withhold the grant of the traditional three-year license, the Examiner's approach, and its subsequent adoption by the Commission, signifies an attitude considerably at odds with the Commission's earlier action in refusing a three-year license. The Examiner seems to have regarded Appellants as "plaintiffs" and the licensee as "defendant," with burdens of proof allocated accordingly. This tack, though possibly fostered by the Commission's own action,⁵ was a grave misreading of our holding on this question.⁶ We did not intend that intervenors representing a public interest be treated as interlopers. Rather, if analogues can be useful, a "Public Intervenor" who is seeking no license or private right is, in this context, more nearly like a complaining witness who presents evidence to police or a prosecutor whose duty it is to conduct an affirmative and objective investigation of all the facts and to pursue his prosecutorial or regulatory function if there is probable cause to believe a violation has occurred.

This was all the more true here because prior to the efforts of the actively participating intervenors, the Commission itself had long since found the licensee wanting.⁷ It was not the correct role of the Examiner or the Commission to sit back and simply provide a forum for the intervenors; the Commission's duties did not end by allowing Appellants to intervene; its duties began at that stage.

A curious neutrality-in-favor-of-the-licensee seems to have guided the Examiner in his conduct of the evidentiary hearing. An example of this is found in his reaction to evidence of a monitoring study conducted by Appellants for about one week in 1964 and which was the subject of two days of testimony at the hearing. The Examiner's conclusion was that the play-back had "virtually no meaning for the simple reason that it was not * * * fair and equitable. It is worthless and therefore completely discounted for any consideration by the hearing examiner." 14 F.C.C. 2d at 543 (emphasis added). In context or out, this reaction is difficult to comprehend.⁸ The Commission has often complained — and no doubt justifiably so — that it cannot monitor licensees in any meaningful way; here a 7-day monitoring, made at no public expense, was presented by a public interest intervenor and was dismissed as "worthless" by the Commission.

Concerning the cutting off of a network program relied on by Intervenors as showing violations of the Fairness Doctrine the Examiner found: "There is not one iota of evidence in the record that supports any such allegation." Yet in the transcript of proceedings we find testimony identifying the program which was admittedly cut off. The record shows the following:

Q. Did you recognize the lunch counter?

A. I recognized the Woolworth Counter where the demonstration occurred here and the picture immediately disappeared. I picked up the telephone and immediately called WLBT —

Q. With whom did you speak?

A. The man refused to identify himself. I did not identify myself. I said, "Did you cut that off because that showed those Negroes sitting in at Woolworth\'s in Jackson?" The man said, "Yes."

MR. GEORGE: I object. I may be anticipating but I will object to any statement as to the reply.

PRESIDING EXAMINER: That is correct. We will sustain that portion of it. You can\'t quote some undisclosed person.

The portion of the answer is stricken where he was quoting some unidentified person which is sheer hearsay.⁹

J.A. 720-21 (emphasis added).

On allegations that at least two of the licensee's commentators used disparaging terms with reference to Negroes there was testimony of listeners who said they heard these episodes; in his initial decision the Examiner noted that "at least three of the Appellants' witnesses" so testified. Nevertheless, the Examiner chose to belittle this evidence:

Because of the conflicting testimony respecting Ellis one of WLBT\'s commentators, there is no finding made as whether he did or did not use the word "nigger" or "negra". But the evidence is undisputed that Alon Bee did use the expressions "negra" or "nigger" at some indefinite time in the past while broadcasting over station WLBT. A glaring weakness of the intervenors\' evidence here is that, as in many of

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