Stone v. FCC

• Decision Date: 30 June 1972
• Docket Number: No. 71-1166.,71-1166.
• Citation: 466 F.2d 316
• Parties: Chuck STONE et al., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. The Evening Star Broadcasting Company, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

466 F.2d 316 (1972)

Chuck STONE et al., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee The Evening Star Broadcasting Company, Intervenor.

No. 71-1166.

United States Court of Appeals, District of Columbia Circuit.

Argued February 25, 1972.

Decided June 30, 1972.

Rehearing Denied September 1, 1972.

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Mrs. Jean Camper Cahn, Washington, D. C., with whom Messrs. Joseph M. Beck, Washington, D. C., G. Dan Bowling, Arlington, Va., and John F. Banzhaf, III, Washington, D. C., were on the brief, for appellants.

Mr. Joseph A. Marino, Counsel, F.C.C., with whom Messrs. Richard E. Wiley, Gen. Counsel, F.C.C., John H. Conlin, Associate Gen. Counsel at the time the brief was filed, and Charles M. Firestone, Counsel, F.C.C., were on the brief, for appellee.

Mr. Howard F. Roycroft, Washington, D. C., with whom Messrs. Peter F. Rousselot and Marvin J. Diamond, Washington, D. C., were on the brief, for intervenor. Mr. William S. Reyner, Jr., Washington, D. C., also entered an appearance for intervenor.

Before BAZELON, Chief Judge, WILKEY, Circuit Judge, and MATTHEWS,^* U. S. Senior District Judge for the District of Columbia.

WILKEY, Circuit Judge:

The essential issue raised by this appeal is whether the Federal Communications Commission could reasonably find that the plaintiffs had not raised substantial and material questions of fact which would show prima facie that Commission renewal of WMAL-TV's license would not serve the public interest. For the reasons stated hereafter, we hold that the Commission could so find, and therefore affirm the Commission's approval of WMAL-TV's license renewal application and dismissal of the plaintiffs' Petition to Deny the Renewal Application for a Television License.¹

I. Background

Plaintiffs, sixteen Washington, D. C., community leaders,² challenge the Commission's dismissal of their Petition to Deny the Renewal Application for a Television License, filed with the FCC 2 September 1969, and grant of the renewal application of the licensee-intervenor, the Evening Star Broadcasting Company, for a regular three-year term from 1 October 1969 to 1 October 1972.³ In their Petition to Deny plaintiffs requested the Commission to refuse the licensee-intervenor's renewal request on the following grounds:

(1) That the licensee-intervenor's station WMAL-TV did not adequately survey the black community in its efforts to ascertain the needs of the Washington, D. C., area;

(2) That it misrepresented facts to the Commission;

(3) That its programming did not serve the public interest, specifically in that it did not meet the needs of the Washington, D. C., black community;

(4) That its employment practices were discriminatory against blacks; and

(5) That renewal of its license would lead to excessive concentration in the Washington, D. C., communications media.

On receiving this Petition to Deny, the Commission delayed renewal of WMAL-TV's license until it had decided whether to hold a hearing on WMAL-TV's application. This in turn depended on whether substantial and material questions of fact were present and whether plaintiffs had made a prima facie case for denial of the license.⁴

The licensee-intervenor filed an Opposition to the Petition to Deny⁵ with the Commission 3 October 1969, seeking to rebut plaintiffs' contentions. Plaintiffs filed a Reply⁶ to the licensee's Opposition, responding to the licensee's arguments. While the FCC was considering these issues, the licensee amended its renewal application⁷ to include a new survey of the needs of the residents of Washington, D. C., and the surrounding area. Plaintiffs responded with a Motion to Strike and Remove the amendment from consideration by the Commission. This motion was denied by the FCC 14 August 1970⁸ on the grounds that any application can be amended as a matter of right prior to its designation for hearing, and that the Commission's rules require applicants to amend in the event of significant changes in the information contained in their applications. The Commission also refused to strike material in the licensee's amendment pertaining to events transpiring after 30 September 1969, the expiration date of WMAL-TV's previous license, but permitted plaintiffs to sift through this material to specify precisely what they did not want the Commission to consider. Plaintiffs filed these comments 4 September 1970, and the licensee answered a week later.

On 3 February 1971 the Commission issued its decision which forms the basis for this appeal, finding no remaining substantial or material questions of fact and granting WMAL-TV's license renewal request.⁹ The FCC specifically stated:

(1) That, taking into account the licensee's amendment as well as the original application, it found the licensee's survey met the Commission's ascertainment requirements;

(2) That the record demonstrated that the licensee had not intentionally misrepresented facts submitted to the Commission concerning contacts between the licensee and certain Washington, D. C., community leaders;

(3) That plaintiffs had failed to make a prima facie case that WMAL-TV was unresponsive to community, especially black community, needs, since the station's programming came within the discretion afforded licensees with respect to program content;

(4) That grant of the renewal application would not result in excessive concentration in the communications media and that, in any event, this was a subject for rulemaking, then under progress; and

(5) That no substantial question of fact remained with respect to the licensee's uncontroverted employment statistics and that plaintiffs had not made a prima facie showing of discriminatory employment practices on the part of the licensee.

Plaintiffs thereupon brought this appeal.

II. Standards for Judicial Review

It is important at the outset to delineate the standards under which the FCC operates, which thereby become the focal point for our review of the agency's decision.

The standards applicable to FCC conduct with respect to broadcast license applications are contained in Section 309(d) of the Communications Act of 1934.¹⁰ Section 309(d) provides for granting such applications where the Commission finds, after full consideration of all pleadings submitted, that there "are no substantial and material questions of fact and that a grant of the application would be consistent with the public interest." In those instances where a petition to deny such an application is filed by a party, 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."¹¹ Where the Commission finds that such a showing has not been made, it may refuse the petition to deny on the basis of "a concise statement of the reasons for denying the petition, which statement shall dispose of all substantial issues raised by this petition."¹²

The legislative history accompanying the 1960 amendment of Section 309(d) indicates Congress' intent that petitions to deny filed under the amended Section 309(d) should make

a substantially stronger showing of greater probative value than is now necessary in the case of a post grant of initial license protest. The allegation of ultimate, conclusionary facts or more general allegations on information and belief, supported by general affidavits, as is now possible with protests, are not sufficient.¹³

In the event, then, that a petition to deny does not make substantial and specific allegations of fact which, if true, would indicate that a grant of the application would be prima facie inconsistent with the public interest, the petition may be denied without hearing on the basis of a concise statement of the Commission's reasons for denial. While this court in West Michigan Telecasters, Inc. v. FCC remanded a decision of the Commission in order that the FCC might either state with particularity the reasons for its grant of a broadcast application or hold a hearing, we recognized:

Admittedly, the scope of our review is quite narrow; we defer to the expertise and experience of the Commission within its field of specialty and would reverse only where the Commission\'s position is arbitrary, capricious or unreasonable . . . and it is clear that the decision of when hearings are necessary or desirable to clarify issues is one which lies in the first instance with the Commission.¹⁴

Aside from the sufficiency of a petition to deny, the FCC is not required to hold a hearing where it finds, on the basis of the application and other pleadings submitted, no substantial and material questions of fact to exist and that granting the application would serve the public interest.¹⁵ Nor is a hearing required to resolve undisputed facts.¹⁶ And, where the facts required to resolve a question are not disputed and the "disposition of an appellant's claims turn not on determination of facts but inferences to be drawn from facts already known and the legal conclusions to be drawn from those facts," the Commission need not hold a hearing.¹⁷ Finally, a hearing is not required to resolve issues which the Commission finds are either not "substantial" or "material," regardless of whether the facts involved are in dispute.¹⁸

We now turn to plaintiffs' specific objections, in order to determine whether the Commission was correct in dismissing plaintiffs' Petition to Deny and granting WMAL-TV's license renewal application without a hearing.

III. Plaintiffs' Specific Objections

A. WMAL-TV's Ascertainment Efforts

It is important to recognize the sequence of events pertaining to WMAL-TV's efforts to ascertain community needs and interests, before determining whether any substantial and material questions of fact were raised as to the adequacy of those efforts. On 7 August 1969 WMAL-TV filed its application for renewal of its broadcast license; on 2 September 1969 plaintiffs filed...