Opinion for the Court filed by Senior Circuit Judge DANAHER.
Dissenting opinion filed by Senior District Judge VAN PELT.
DANAHER, Senior Circuit Judge:
This is an appeal pursuant to 47 U.S.C. § 402(b)(1) from a decision of the Review Board of the Federal Communications Commission (Board)
As part of its mandate to regulate the broadcasting industry in the public interest,
"Public Notice Relating To Ascertainment of Community Needs by Broadcast Applicants,"
The Primer established a relatively detailed set of guidelines for applicants to follow, each applicant thereafter being bound to provide the Commission with detailed information on certain required steps, and thus indicating a genuine awareness of problems in the areas sought to be served. Accordingly as presently pertinent, the Commission required each applicant to: (1) undertake a compositional study of the area designed to determine "significant groups" therein; (2) seek out and interview "leaders" or "spokesmen" for each such group to determine their perception of local needs and problems; (3) conduct a "roughly random" survey of the general public's perception of such needs and problems; (4) evaluate the problems thus uncovered; and (5) submit programming proposals designed to assist in the resolution of these problems.
Petitioner submitted his application for a construction permit on January 20, 1970, in the midst of the confusion which preceded publication of the Primer. The application was designated for hearing on certain issues, including the community survey issue, on November 18, 1970, but was postponed at the request of petitioner's counsel pending publication of the Primer. The Primer was released on February 23, 1971, and in May of that year petitioner conducted a series of interviews designed to comply with the Primer and submitted the results in an amendment to the application filed on June 7, 1971. Hearings were then held in September, and as a result petitioner conducted an additional survey in October, supplemented it in December, and filed the results as a second amendment to the application. Following a hearing on the new survey, the record was closed on January 27, 1972.
As a result of these survey showings, Bamford could demonstrate interviews with 45 community leaders, drawn primarily from a broad base of civic and business organizations, J.A. 68, 48 FCC 2d at 1167. He could additionally show interviews with
The non-ascertainment issues involved in the Corpus Christi application were severed at the request of the Commission Staff, 31 FCC 2d 701 (1971), and consolidated for hearing with similar issues in another proceeding involving petitioner's application for a broadcast station in Colorado. 32 FCC 2d 773 (1972). The Corpus Christi proceeding remained dormant until the consolidated Colorado hearing was resolved favorably for the petitioner on June 16, 1973. 41 FCC 2d 835. Thereupon, the Administrative Law Judge reactivated the Corpus Christi proceeding and established a date for the filing of proposed findings. In the meantime petitioner conducted a new survey of the area in October 1973, and attempted to reopen the record for submission of the new results. The ALJ denied this request, but, concluding that Bamford had minimally achieved essential compliance, he released his initial decision on February 15, 1974, and granted the application.
The Commission Staff appealed the ruling to the Review Board which, after hearing oral argument, rendered a decision reversing the ALJ and denying the application. Petitioner then appealed to the Commission which declined review, thus finalizing the Review Board's determination. The Board found that petitioner had presented an inadequate survey of community problems: he had failed to undertake an adequate compositional survey of the Corpus Christi area; he had failed to interview "leaders" of significant groups in the city, specifically Spanish-Americans and welfare recipients; and he had failed to conduct a "random" survey of the general public.
II. THE ISSUES ON APPEAL
As a preliminary matter, we note that whatever other factors may have contributed to the haphazard ascertainment showing involved here, certainly the inadequacy of the composition study played a direct role. The composition study serves as the basis for the survey of "leaders" of significant groups, and is therefore a crucial component of a community needs survey.
Petitioner's composition study was in two parts. The first, submitted with the May 1971 amendment, consisted of a copy of a single page from the 1970 Census containing information on race, age, and head of household status for the population of Corpus Christi. The second, submitted with the October 1971 survey, contained a list of service, professional and trade organizations in the area, as well as information concerning the industrial life of the city and a general description of the nature of its work force. No information was submitted detailing the income distribution in the area. Had such information been obtained, petitioner would have been aware that over
A. The Leadership Survey
Bamford charges that the Primer provided him with insufficient notice of certain requirements concerning the leadership survey. He claims that the Primer did not inform him that the term "leader" referred only to a person holding an official position in an organization, and that it did not indicate that welfare recipients were embraced within the phrase "significant group."
It is beyond dispute that an applicant should not be placed in the position of going forward with an application without knowledge of requirements established by the Commission, and elementary fairness requires clarity of standards sufficient to apprise an applicant of what is expected. As Judge Leventhal stated in Radio Athens, Inc., (WATH) v. F. C. C., 130 U.S.App.D.C. 333, 339, 401 F.2d 398, 404 (1968) (dismissal of application without hearing for patent non-conformance with Commission rules):
If an applicant ignores or fails to understand "reasonably comprehensible" requirements, he cannot be heard to complain about lack of notice.
The Review Board found that Bamford had failed to interview "leaders" of the Spanish-American population group in Corpus Christi,
Even so, reversal and remand are not called for here since the Board additionally found that petitioner had totally failed to include in the survey of community leaders — however defined — any person in a position to bespeak the interests of the poor. J.A. 76, 48 FCC 2d at 1168. Although this finding is strenuously opposed by counsel for petitioner, we find that his objections are without merit and that the Board's finding presents an independent basis for its denial of the application. The Board noted that 18.4 per cent of the families in the Corpus Christi area were below the poverty level, and accordingly found that the poor constituted a significant group. The Primer provides that failure to include a significant group in the community leader survey "would make the applicant's showing defective, since those consulted would not reflect the composition of the community." J.A. 15, 27 FCC 2d at 684.
Petitioner now claims that this finding was lacking in fairness because it amounted to an unwarranted addition to the list of groups "required" to be contacted by an applicant, and that, therefore, he was without notice. This contention is without merit. Initially, we note that there is no such thing as a "required" list of groups to be consulted. The Primer assiduously avoids such rigidity in the recognition that communities differ in their composition.
In some situations, not present here, there could be at least some plausibility in a submission that the guidelines are too broad and vague respecting just what constitutes a "significant" group. The word "group", as used in the Primer, is "broad enough to include population segments, such as racial and ethnic groups, and informal groups, as well as groups with formal organization." J.A. 14, 27 FCC 2d at 682. The determination of the "significance" of the group, which triggers the need for a leadership survey, "may rest on several criteria, including its size, its influence, or its lack of influence in the community." J.A. 14, 27 FCC 2d at 683.
B. The Petition for Amendment
A closer question is presented in petitioner's claim that the Commission improperly denied his request to reopen the record for submission of a new ascertainment survey conducted in October 1973. It will be recalled that the survey materials contained in the record were two years old at the time of the request because of a Commission-imposed dormacy in the Corpus Christi proceeding. See, 32 FCC 2d 773 (1972); 31 FCC 2d 701 (1971). The Corpus Christi proceeding was free to move forward after July 16, 1973, 41 FCC 2d 835, and following conference with counsel, the ALJ set November 19, 1973, as the date for the filing of proposed findings. On November 12 counsel for Bamford requested a postponement of the filing date and a reopening of the record to allow submission of a new survey of community needs conducted sometime in October. The purported justification for this request was an asserted "on-going ascertainment" requirement of the Primer, and a need to overcome "the potentially disqualifying community needs issue."
However, as we read the record, it appears to us that the ALJ concluded that petitioner was merely attempting to overcome the blatant deficiencies of the previous ascertainment efforts. Petitioner had candidly admitted in the petition that he was concerned over the "potentially disqualifying" ascertainment issues, and had re-emphasized this concern in his Petition for Reconsideration.
VAN PELT, Senior District Judge (dissenting).
I respectfully dissent from the excellently written majority opinion which accurately reflects the issues and the evidence.
I cannot subscribe to the finding of the Review Board that Bamford had failed to interview leaders of the Spanish-American population group at Corpus Christi. The four Spanish-Americans interviewed, as shown by the majority opinion are "a judge, a city councilman, a pastor of a Roman Catholic Mexican-American church, and the county clerk who was also president of the Knights of Columbus." I am unable to believe in a community in which Spanish-Americans constitute 35.7% to 48% of the population (see note 10, majority opinion) that for a Spanish-American to be elected a judge, city councilman, or a county clerk is
I would sustain the petitioner's request to reopen the record for the submission of new survey material.
20 R.R. at 1913.
J.A. 14, 27 FCC 2d at 683. The Commission does not demand that an applicant undertake an independent sociological study of the area, but rather that he
Id. This information may be obtained from the U.S. Census Bureau, the local Chamber of Commerce, or other reliable sources.
48 FCC 2d at 1158 n. 16.
The Board's reliance on this language from the Primer appears to be misplaced, since the language is by its terms not directed at resolving problems of determining who are leaders, but rather at resolving problems of ignoring less organized groupings precisely because of the lack of a well defined organizational structure.
J.A. 14, 27 FCC 2d at 683. (Emphasis added). Clearly the italicized language of the quoted material indicates the Commission's intent to have the "list" of "groups and organizations" function in an illustrative capacity only.
¶ 31, J.A. 7, 27 FCC 2d at 662-663. (Emphasis added). While the Commission recognized the difficulty of identifying "leaders" of the groups lacking a highly developed formal structure, see Question and Answer 13(a) of the Primer and relevant discussion in ¶ 39, J.A. 8, 27 FCC 2d at 666, it nevertheless required that they be sought out in the leadership survey. As an aid in assessing compliance, the Commission required the leader to be identified "by name, position and/or organization." Answer 20. To provide further guidance, the Report gave the following examples:
¶ 52, J.A. 10, 27 FCC 2d at 671. (Emphasis added).
Additionally the Commission gave rather extensive consideration to the problems of the poor in the context of discussing the ultimate purpose of the ascertainment guidelines — programming which responds to the problems of the community. Following publication of the proposed Primer, a comment was received from the National Association of Broadcasters, Inc., (NAB), which suggested that the dominant format of the broadcaster should determine which problems should be addressed in the programming proposals; for example, a "rock" station would be most effective in treating problems germane to a predominantly young audience. This proposal was rejected by the FCC with the following explanation:
¶ 58, J.A. 10-11, 27 FCC 2d at 673. See also, ¶ 17, J.A. 4, 27 FCC 2d at 656.
Id. at 423. (Emphasis added).