591 F.2d 812 | D.C. Cir. | 1978
Opinion for the Court filed by WILKEY, Circuit Judge.
This is an appeal from a decision of the Federal Communications Commission (FCC) to renew the broadcast license of KCOP Television, Inc., Channel 13 in Los Angeles.
I. BACKGROUND
KCOP filed its application for renewal of license on 30 July 1974. On 1 November 1974 NABB filed a petition to deny KCOP’s application, alleging, inter alia, (1) deficiencies in seventeen areas of KCOP’s programming, (2) failure to ascertain and meet the needs of the Los Angeles community, (3) violations of FCC rules through the misclassification of programs and various acts of “deception”, and (4) breaches of an agreement KCOP had made with a Los Angeles citizens group and incorporated into its 1971 renewal application.
The Commission denied NABB’s petition and declined to hold an evidentiary hearing on the renewal application, finding that NABB had failed to raise any substantial and material question of fact or to present prima facie evidence that license renewal would not be in the public interest.
II. STATUTORY FRAMEWORK
The Commission’s disposition of license applications is governed by section
Aside from the sufficiency of the petition to deny, a hearing will not be required where the facts are undisputed,
This court has recently had occasion to consider the special circumstances presented by allegations of discrimination in a licensee’s employment practices. In Bilingual II,
III. ANALYSIS
We review the Commission’s decision to determine if it reasonably concluded that there were no “substantial and material questions of fact” and that license renewal would be in the public interest.
The extent of our review in such cases as this is narrow. “We defer to the expertise and experience of the Commission within its field of speciality.”
We now address the FCC’s disposition of the allegations raised by NABB in its petition to deny, which may be conveniently grouped as programming criticisms and a failure to implement the CORT agreement as represented to the FCC.
A. Programming Criticisms
NABB extensively criticized the quality of KCOP’s programming generally and cited particular areas of alleged deficiency.
[t]he Commission simply determines whether the licensee has operated in the public interest in the past, and whether its proposed programming makes it likely to operate in the public interest in the future. Once that determination is made the Commission does not try to evaluate whether the licensee could have done a better job of operating in the public interest.23
Thus we have no doubt that the Commission reasonably found appellant’s allega
The allegations within the second category are at least not facially immaterial to the public interest inquiry, referring as they do to the FCC’s ascertainment requirement.
The ascertainment requirement is a sensible means of assuring that licensees obtain the sort of information which may make diversity of expression more likely. Imposing such duties of inquiry without more appears to raise no First Amendment questions, since they do not directly regulate protected speech. When the FCC scrutinizes programming content to determine if it is responsive to ascertained needs, or employs programming “guidelines” in processing renewal applications, arguably it is on more delicate ground.
The third category of appellant’s allegations are those objecting to specific programs. Of course, not all speech is protected by the First Amendment and conduct which is otherwise unlawful is not immunized when put on television. Certain of NABB’s allegations did pertain to arguably unlawful conduct. Thus NABB alleged (1) that airing certain game shows constituted the unlawful broadcast of lotteries;
As to the fairness doctrine and personal attack allegations, the Commission reasonably found that no violations had been shown to have occurred.
The allegations concerning excessive violence are on quite a different footing; the conceptual difference between them and alleged violations of the fairness doctrine is instructive. To be sure, both allegations depend upon the content of speech. The difference is that in one case, regulation generates diversity of expression, only incidentally and marginally displacing some of the licensee’s speech, and that without regard to its content.
Such subsequent review of program content as is proposed by appellant is not “censorship” within the meaning of 47 U.S.C. § 326.
Several of appellant’s allegations pertain to a 1971 agreement between KCOP and a citizens group called Council on Radio and Television (CORT). CORT had opposed KCOP’s 1971 license renewal, but withdrew its petition to deny when the agreement at issue here was filed as an amendment to KCOP’s renewal application. NABB alleged that KCOP violated the agreement in three respects: (1) that it failed to “remove all racial and ethnic slurs” from its programming;
It is settled that programming proposals contained in a private agreement which is incorporated within a license application become representations to the Commission and are treated as are other promises of future performance.
The Commission confines its review to determining if the licensee has made “reasonable and good faith efforts to effectuate its proposals.”
The Commission dismissed NABB’s allegations pertaining to the CORT agreement, finding that they failed to show any of the purported violations. With respect to the claim that KCOP had breached its promise to remove all racial and ethnic slurs from its programming, the Commission said that NABB’s allegations were not specific enough; that in any event characterization of language as a racial slur was “merely a matter of subjective interpretation,” and that accordingly it would not “arbitrate the definition of vague terms” which “fairly lend themselves to varying interpretations.” Moreover, inasmuch as the standard of compliance is reasonableness and good faith the Commission concluded it “could hardly be said . . . that KCOP failed to meet that standard.”
NABB attacked the Commission’s alternative findings as both wrong and mutually inconsistent. It was logically impossible, NABB supposed, to find compliance with an agreement which the Commission would not
We agree that the Commission’s treatment of this issue was muddled. Further, we believe that under some circumstances, not presented by this case, it would have been impermissible to decline to interpret such a representation made by a licensee. But on the record in this case it is apparent that the instances of alleged racial slurs adduced by appellant were infrequent and insubstantial. Further, such offensive language as was shown is just part and parcel of the hyperbole and pseudoanimosity which has always characterized “professional wrestling.” It is unfortunate that the Commission did not address the substantiality of appellant’s allegations more plainly, but we think it did at least intimate the view in finding good faith compliance:
[T]he standard by which a licensee is judged concerning its compliance with such agreements is whether it made reasonable and good faith efforts to effectuate its proposals, and it can hardly be said from the allegations of NABB’s original pleadings that KCOP failed to meet that standard.54
Thus it was reasonable to find that appellant’s allegations were simply not substantial enough to warrant further inquiry, and on this basis, articulated as it was, we can sustain the Commission.
NABB was similarly troubled by the Commission’s disposition of its remaining contentions. NABB had included in its petition to deny, together with allegations of KCOP’s general neglect of minority interests, allegation that KCOP had failed to produce the monthly minority affairs documentary called for in the agreement. The agreement had provided:
KCOP shall develop, finance, produce and present monthly, in its prime time “Big Question” or “Minority Community” regularly scheduled programs, a documentary type program which will feature interviews, film clips and commentary. This program will be produced and directed by KCOP in consultation with minority groups and will include the use of local minority talent in program production.55
NABB alleged that too few of the documentaries had been produced, and those without involving minorities. The Commission said that the allegations lacked “both specificity and factual support,” some being based wholly on “information and belief” regarding matters not within NABB’s personal knowledge.
Apparently the Commission was of the opinion that NABB’s allegations, in light of KCOP’s overall record of public affairs and minority programming, failed to raise a serious question whether renewal would be in the public interest. Consequently, the exact nature of the alleged variance from the CORT agreement (admittedly a factual question) became irrelevant. Had the Commission said this more plainly, it would have avoided the awkwardness of admitting doubt concerning the occurrence of the programming specified in the agreement, while at the same time finding substantial compliance with that provision. The result reached by the Commission is,
Finally, NABB alleged that KCOP breached its promise, contained in the CORT agreement, to broadcast balanced religious programming. Paragraph III F of the CORT agreement provided:
F. Religious Programs.
1. In keeping with KCOP’s efforts to cover the range of religious thought, KCOP will carry a locally produced religious program representing the major American religious denominations, which will include discussion of current issues, commentary, or religious music.58
In its first opinion the Commission found “that the terms of the CORT agreement now at issue have been met and that KCOP has provided balanced religious programming.” The Commission said that KCOP had complied with the agreement in good faith through a public affairs program presenting “religious topics and speakers.”
Again, the result reached by the Commission is not unreasonable, despite the obliqueness of its approach. The Commission described what it was doing in the language of contract interpretation, permitting NABB to counter with the allegation that the intention of the parties was in fact contrary; yet it is clear, though implicit, that the Commission concluded that the deviation from the promise, even as alleged, was insufficient to raise a substantial question of licensee integrity or capacity to broadcast in the public interest.
IV. CONCLUSION
In revising the procedures for opposing license renewals, Congress made clear its intention to eliminate wasteful inquiry into immaterial or insubstantial matters. However, summary process, without the safeguards of an adversarial proceeding, makes it even more essential that the Commission clearly state the reasons for its decision on the merits. That it was fairly unsuccessful in doing so in this case is troubling. The function of judicial review is enormously complicated by a failure of clarity on the part of the agency. Ordinarily the appropriate course will be to remand for some explication, for we cannot supply a rationale omitted by the agency. That course is just barely unnecessary in this case.
Affirmed.
. KCOP Television, Inc., 59 F.C.C.2d 1321 (1976), reconsideration denied, 62 F.C.C.2d 93 (1977). The jurisdiction of this court was properly invoked pursuant to 47 U.S.C. § 402(b)(6) (1976).
. The Petition to Deny is reproduced in the Joint Appendix (J.A.) at 1.
. 59 F.C.C.2d at 1333.
. 47 U.S.C. § 309(d) (1976).
. 47 U.S.C. § 309(d)(2) (1976).
. 47 U.S.C. § 309(d)(1) (1976).
. Alianza Federal De Mercedes v. FCC, 176 U.S.App.D.C. 253, 257, 539 F.2d 732, 736 (1976); Stone v. FCC, 151 U.S.App.D.C. 145, 151, 466 F.2d 316, 322 (1972).
. 47 U.S.C. § 309(d)(1) (1976).
. S.Rep.No.690, 86th Cong., 1st Sess. 3 (1959), quoted in Stone, 466 F.2d at 322.
. 47 U.S.C. § 309(d)(2) (1976).
. Stone, 151 U.S.App.D.C. at 152, 466 F.2d at 323, citing Marsh v. FCC, 436 F.2d 132, 135-136 (1970).
. Alianza, 176 U.S.App.D.C. at 257, 539 F.2d at 736; Columbus Broadcasting Coalition v. FCC, 164 U.S.App.D.C. 213, 217, 505 F.2d 320, 324 (1974); Stone, 151 U.S.App.D.C. at 152, 466 F.2d at 323; Anti-Defamation League of B’nai B’rith v. FCC, 131 U.S.App.D.C. 146, 148, 403 F.2d 169, 171 (1968), cert. denied, 394 U.S. 930, 89 S.Ct. 1190, 22 L.Ed.2d 459 (1969).
. Stone, 151 U.S.App.D.C. at 152, 466 F.2d at 323. See id. n.18, quoting H.Rep.No.1800, 86th Cong., 2d Sess. 12 (i960), reprinted in [1960] U.S.Code Cong. & Admin.News, p. 3520. See also Mahoning Valley Broadcasting Corp., 39 F.C.C.2d 52, 63 (1972).
. Bilingual Bicultural Coalition v. FCC, No. 75 1855 (D.C.Cir. 4 May, 1978) (rehearing en banc).
. Id., slip op. at 16.
. This will be the case, for example, where licensee’s financial condition is relevant to the public interest inquiry. See Citizens Comm. to Save WEFM v. FCC, 165 U.S.App.D.C. 185, 204-205, 506 F.2d 246, 265-66 (1974) (en banc). Cf. Alianza, 176 U.S.App.D.C. at 258, 539 F.2d at 737-738. In such cases the Commission’s procedural response should be tailored to the circumstances; it might choose, inter alia, to direct a letter of inquiry to the licensee, see Bilingual II, slip op. at 17 18; to release confidential information, see Alianza, 176 U.S.App.D.C. at 258, 539 F.2d at 737; 47 C.F.R. § 0.461 (1977); to shift the burden of proof
. Stone, 151 U.S.App.D.C. at 151, 466 F.2d at 322, quoting West Michigan Telecasters, Inc. v. FCC, 130 U.S.App.D.C. 39, 42, 396 F.2d 688, 691 (1968). See also Southwestern Operating Co. v. FCC, 122 U.S.App.D.C. 137, 138, 351 F.2d 834, 835 (1965) (there is “no doubt that Congress intended to vest in the FCC a large discretion to avoid time-consuming hearings in this field whenever possible, and we would ordinarily defer to that purpose”).
. Columbus Broadcasting, 164 U.S.App.D.C. at 217, 505 F.2d at 324.
. Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 395, 444 F.2d 841, 853 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971).
. Nat’l Org’n for Women v. FCC, 181 U.S. App.D.C. 65, 68, 555 F.2d 1002, 1005 (1977); Columbus Broadcasting, 164 U.S.App.D.C. at 217, 505 F.2d at 324.
. These contentions are set out in the Petition to Deny, J.A. at 5-93, and are summarized in the Brief of Appellant at 33-36.
. 59 F.C.C.2d at 1328 (over-commercialization); id. at 1329 (news); id. at 1330 (public affairs); id. at 1331-1332 (local programming); id. at 1332 (“old and stale” programming).
. Alianza, 176 U.S.App.D.C. at 258, 539 F.2d at 737. Of course in this case, apart from its finding that NABB’s allegations were insufficient to show prima facie to the contrary, the Commission affirmatively found that renewal would be in the public interest. 62 F.C.C.2d at 96. We believe, for reasons which owing to the
. See Primer on Ascertainment of Community Problems by Broadcast Renewal Applications, 57 F.C.C.2d 418 (1976); NOW, 181 U.S.App. D.C. at 68-69, 555 F.2d at 1005-1006; Alianza, 76 U.S.App.D.C. at 258, 539 F.2d at 737.
. Brief of Appellant at 34-36.
. See Alianza, 176 U.S.App.D.C. at 257, 539 F.2d at 736; Citizens Comm. to Save WEFM, 165 U.S.App.D.C. at 207, 215-216, 506 F.2d at 268, 276-277 (Bazelon, C. J., concurring in the result).
. See 59 F.C.C.2d at 1324-1325 (children’s programming); id. at 1326-1327 (minority programming); id. at 1331 (agricultural programming). Furthermore, as we have noted, it is not essential that a licensee respond to every ascertainable need, only that it determine in good faith which merit treatment. See Alianza, 176 U.S.App.D.C. at 258, 539 F.2d at 737; Newton Broadcasting Corp., 56 F.C.C.2d 82, 88 (1975); Taft Broadcasting Co., 38 F.C.C.2d 770, 790 (1973); Primer on Ascertainment of Community Problems, 27 F.C.C.2d 650, 673 (1971).
. See 59 F.C.C.2d at 1328 (news); id. at 1330 (public affairs); id. (instructional programming); id. at 1331 (local). The relevant data, compiled from filings with the FCC, are set out in the Brief of FCC at 21 n. 14. See also Programming Policy Statement, 44 F.C.C.2d 2303, 2314 (1960); 47 C.F.R. § 73.670 n. 1 (1977).
. See, e. g., Central Florida Enterprises, Inc. v. FCC, No. 76-1742 (D.C.Cir. 25 Sept. 1978); Fidelity Television, Inc. v. FCC, 169 U.S.App.D.C. 225, 515 F.2d 684, cert. denied, 423 U.S. 926, 96 S.Ct. 271, 46 L.Ed.2d 253 (1975). Cf. Citizens Comm. to Save WEFM, 165 U.S.App.D.C. at 207, 217, 506 F.2d at 268, 278 (Bazelon, C. J., concurring in the result) (intrusions into licensee’s programming discretion unjustified outside of comparative context).
. Petition to Deny, J.A. at 63-68.
. Id. at 13-17.
. Id. at 26-31.
. See 59 F.C.C.2d at 1327-1328 (lotteries); id. at 1321-1322 (wrestling); id. at 1324 (faith-healing). Of course an adequate showing of
We note the special difficulties attending the allegation of fraudulent religious programming. While it is probable that speech enjoys no heightened protection merely if its content is religious, and it is quite clear that religious fraud is not protected by any clause of the First Amendment, inquiries into religious fraud must scrupulously avoid becoming inquisitions into the sincerity of religious belief. It will thus ordinarily be necessary to rely on extrinsic evidence of fraud in such cases. Consequently, the dismissal of the allegations here as insufficiently specific was clearly reasonable.
. Both violations were alleged to arise from the broadcast of a single program. Petition to Deny, J.A. at 26-29.
. Id. at 46-60.
. With respect to the fairness doctrine allegation, it was apparently undisputed that KCOP had aired a program presenting views contrasting those presented on the show referred to by NABB. 59 F.C.C.2d at 1324. The Commission had rejected the personal attack issue raised by NABB when it had been previously raised by another complainant. Id. at 1323-1324.
. See, e. g., Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 350, 473 F.2d 16, 61 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973).
. Permissible content-based regulations of programming usually have been of this sort. Such intrusions are predicated on the physical scarcity of the broadcast spectrum and ordinarily attempt to repair rather narrow failures of diversity. See, e. g., Brandywine-Main Line Radio, Inc., 153 U.S.App.D.C. at 338, 350, 473 F.2d at 49, 61 (fairness doctrine and personal attack rule); Banzhaf v. FCC, 132 U.S.App.D.C. 14, 34, 405 F.2d 1082, 1102 (1968) (upholding FCC ruling requiring “equal time” for anti-cigarette advertising), cert. denied, 396 U.S. 842 (1969).
. FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978).
. Id., 438 U.S. 748-751, 98 S.Ct. 3040-3041 (emphasis added).
. Whether such a regulation of speech because of its content would ever be permissible without some “clear statement” as was provided by statute in Pacifica is a difficult question not now before us. See 18 U.S.C. § 1464 (1976) (forbidding the broadcast of “any obscene, indecent, or profane” language.) Compare Greene v. McElroy, 360 U.S. 474, 507, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959).
. Petition to Deny, J.A. at 17.
. Id. at 19-21.
. Id. at 80.
. Agreements Between Broadcast Licensees and the Public, 57 F.C.C.2d 42, 54 (1975) [hereinafter cited as Agreements ].
. Id.
. RadiOhio, Inc., 38 F.C.C.2d 721, 743 (1973), aff’d sub nom. Columbus Broadcasting Coalition v. FCC, 505 F.2d 320 (1974).
. See Agreements, 57 F.C.C.2d at 49. Cf. American Federation of Musicians v. FCC, 356 F.2d 827, 833 (1966).
. Agreements, 57 F.C.C.2d at 52.
. See, e. g., Columbus Broadcasting Coalition, 164 U.S.App.D.C. at 219, 505 F.2d at 326; Brandywine-Main Line Radio, Inc., 153 U.S.App.D.C. at 339, 473 F.2d at 50-52.
. See Fairness Report, 48 F.C.C.2d 1, 8 (1974).
. 59 F.C.C.2d at 1322; 62 F.C.C.2d at 94.
.See J.A. at 170-75.
. 62 F.C.C.2d at 94.
. CORT Agreement, paragraph 111 B, J.A. at 209-10.
. 59 F.C.C.2d at 1330.
. 62 F.C.C.2d at 95-96.
. CORT Agreement, paragraph III F, J.A. at 211.
. 62 F.C.C.2d at 94-95.
. See 47 C.F.R. 73.282 n. 1 (1977).