4 FCC Red No. 2 Federal Communications Commission Record FCC 88R-70 Before the Federal Communications Commission Washington, D.C. 20554 MM Docket No. 86-49 In re Applications of SEATTLE PUBLIC SCHOOLS For Renewal of License For Station KNHC(FM), Seattle, Washington and File No. BRED-830922AQ JACK STRAW File No. BPED-840103AR MEMORIAL FOUNDATION Seattle, Washington For Construction Permit for a New FM Station Appearances Sally Katzen, Esquire, Bruce Friedman, Esquire, an.ct Margaret C. Tobey, Esquire, on behalf of Seattle Public Schools; Richard M. Riehl, Esquire, Michael H. Baker, Esquire, and John Crigler, Esquire, on behalf o~ Jack Straw Memorial Foundation; and Norman Goldstein, Es­ quire, on behalf of the Chief, Mass Media Bureau, Federal Communications Commission. DECISION Adopted: December 14, 1988; Released: January 19, 1989 By the Review Board: MARINO (Chairman), BLUMENTHAL, ESBENSEN. Board Member BLUMENTHAL: I. INTRODUCTION 1. In this proceeding, Seattle Public Schoo~s (.SPS) is seeking the grant of its 1984 renewal application for noncommercial educational broadcast Station KNHC-FM, Seattle, Washington, whereas Jack Straw Memorial Foun­ dation (Straw) has filed a mutually exclusive application for that same facility. Following the Initial Decision (I.D.) of presiding Administrative Law Judge Joseph Chachkin (ALJ), 3 FCC Red 3028 (released May 27, 1988), which granted the SPS renewal application, Straw filed exce~­ tions with the Review Board and SPS and the Mass Media Bureau filed reply exceptions. We have reviewed the I.D. in light of the pleadings, the oral argument heard October 21, 1988, and our independent examination of the record. We adopt the findings of fact and conclusions of law of the ALJ, except as modified herein, and affirm his ulti­ mate grant of the SPS renewal application. 1 62!; 2. This case arose when. on January 3. I 98-1. Straw filed an application for a Construction Permit to operate a noncommercial FM radio station on 89.5 MHz in Seattle, Washington. a frequency currently occupied by KNHC­ FM licensed to the Board of Directors of SPS. KNHC­ FM: which has operated on that frequency since 1971. is physically located at Nathan Hale High School, _one of ten Seattle public high schools. Straw is a nonprofit corpora­ tion which, from 1964 to 1984. operated KRAB-FM on commercial frequency 107.7 MHz. a station it was in­ spired to sell because of severe financial difficulties. Straw intended to use the proceeds from its sale of KRAB-FM as· an endowment with which to fund a new radio station it hoped to settle on a Seattle noncommercial frequency. The problem for Straw, however, was that of the two noncommercial FM frequencies established in Seattle, both were occupied by ongoing broadcast operations. 2 Straw was recently granted a broadcast Construction Per­ mit to operate a noncommercial FM station on 90.7 MHz at Everett. Washington. a community approximately 25-30 miles north of Seattle, but that station appears to be not yet operational. 3 Thus. Straw filed its application for 89.5 MHz, Seattle, to be mutually exclusive with the renewal application for KNHC-FM filed by SPS on September 22, 1983. 3. Although Straw's mutually exclusive application of January 1984 "was technically for full-time operation of the station," I.D. at para. 2, "Straw's stated goal in filing its application was to obtain a share-time arrangement" with SPS for the joint use of the subject frequency. Seaule Public Schools, 103 FCC 2d 862, 866 (1986)(Hearing Des­ ignation Order). Under the Commission's rules governing noncommercial FM stations, a station "'which does not operate 12 hours per day each day of, the yea:, w_ill be required to share use of the frequency on which 1t op­ erates." Id., at 865-866 n.3 (quoting 47 CFR §73.56l(b)). Because KNHC-FM had operated for an average of only 67 hours per week for seven months (September 1982 - April 1983) of the subject license term prior to the filing of Straw's January 1984 share-time application, the Com­ mission designated Straw's application and the KNHC-FM renewal application for consolidated hearing to determine "whether the public interest would be served by a share­ time arrangement between the renewal applicant and th_e share-time applicant rather than by the renewal apph­ cant's continued, increased operating schedule." Id., at 867.4 4. The Hearing Designation Order also specified financial and environmental issues against Straw. Id., at 870. Stra~ petitioned for reconsideration of the Commission's des­ ignation order and argued that, although its January 1984 application was accompanied by its statement that "Jack Straw ... is not seeking to displace the Seattle School Board as the licensed operator on the channel currently operated by KNHC," Seattle Public Schools, 60 RR 2d 1073, 1075 (1986)(Memorandum Opinion and Order modi­ fying Hearing Designation Order), its share-time applica­ tion was premised upon its view that Section 73.56l(b) was a per se rule and that, with KNHC-FM having failed to operate for at least 12 hours per day each day during the license term, SPS would be required by the Commis­ sion to share-time on KNHC-FM with Straw. The Com­ mission again rejected Straw's argument that Section 73.56l(b) was a per se rule. but it did accept Straw's contention that its original application was tendered in alternative fashion; i.e., if Straw was not granted time- FCC 88R-70 Federal Communications Commission Record 4 FCC Red No. 2 sharing on the subject frequency, then it was entitled. under the tenets of Ashbacker Radio Corp. v. FCC. 326 U.S. 327 ( 1945). to a full comparative contest for the frequency itself . .\femorandum Opinion and Order. 60 RR 2d at 1075. Accordingly. the Commission added the stan­ dard noncommercial comparative issue utilized when two competing applicants apply for a new noncommercial broadcast station. That issue. first contoured in Sew York University, 10 RR 2d 215 (1967), reads as follows 5: To determine: (a) the extent to which the proposed operation of Jack Straw and the proposed operation of the School System will be integrated into the overall cultural and educational objectives of the respective applicants: (bl the manner in which the proposed operation of the Jack Straw and the pro­ posed operation of the School System meet the needs of the community to be served: and (c) whether other factors in the record demonstrate that one applicant will provide a . superior noncommercial radio broadcast service. And. citing past policy,6 the Commission also retained the previously designated time-sharing issue. which reads as follows~: To determine whether a share-time arrangement be­ tween the School System and Jack Straw would result in the most effective use of the specified channel and thus better serve the public interest, and, if so, the terms and conditions of the arrange­ ment. "The contingent environmental and financial issues were resolved in favor of Jack Straw in advance of the hear­ ing." I.D. at para. 10. Neither SPS nor the Mass Media Bureau has excepted to the resolution of those two issues, and any such potential exceptions are therefore waived. 47 CFR §l.277(a). See also Silver Star Communications - Albany, Inc., FCC 88R-60, released November 2, 1988 at para. 4 (and cases cited therein). Hence, those two issues are not before us.8 5. Upon consideration of the record as a whole, the ALJ determined that SPS was entitled to a renewal expec­ tancy for KNHC-FM's "outstanding performance during the license term," I.D. at para. 294 (see also id., paras. 268 et seq.). Under the standard noncommercial comparative issue, the ALJ found SPS superior to Straw on the ques­ tion of which applicant would best integrate its proposed station into the educational and cultural objectives of each applicant. Id., para. 308. He similarly favored SPS on the companion comparative question of which of the ap­ plicants would best meet the needs of the local Seattle community. Compare id., paras. 309-311 (SPS "has diligently ascertained community needs" and its "promise to continue to ascertain needs and interests and to air programs responsive thereto is entitled to great weight) with id., paras. 312-316 (Straw "has failed to establish that its proposal will meet the needs of the residents of Seattle for issue-responsive programming). In considering certain "other factors" under the comparative issue, the ALJ found that SPS was entitled to credit for its "community outreach" activities, id., para. 317. and he refused to credit Straw for its proposal to provide a superior "com- 626 parative coverage" (first and second noncommercial ser­ vice to 209 and 484 square miles. respectively. encompassing populations of l l.778 and 81.194 persons. respectively). because Straw failed to demonstrate that its technical proposal was feasible. Id .. paras. 318- 319. The ALJ further held that. even if Straw's technical proposal were feasible. any ensuing "comparative coverage" advan­ tage would not outweigh SPS's overall superiority on the standard noncommercial comparative issue, id., para. 320. and certainly could not overcome - in the end - SPS's strong renewal expectancy accruing from its meritorious license term performance. Id. As to the time-share issue. the ALJ found that SPS requires its current hours of operation in order to meet its educational objectives, see id .. paras. 323-326. and he refused to prescribe a time­ share arrangement between SPS and Straw. The Mass Media Bureau supports the ALJ's conclusion that SPS is entitled to a strong renewal expectancy for KNHC-FM. but it shoulders Straw's exceptions to the I.D. to the extent that the ALJ failed to credit Straw's "comparative coverage" proposal. Notwithstanding, the Mass Media Bu­ reau believes that any such latter credit would not be of decisional significance in the face of the SPS renewal expectancy for KNHC-FM. Conversely. Straw's exceptions contend ( l) that it should have heen awarded a dispositive preference for its "comparative coverage" under either the standard noncommercial comparative or time-share issues; (2) that the ALJ misapplied the noncommercial compara­ tive criteria and that Straw should have been awarded a decisive credit for its proposal to provide "alternative" programming; (3) that SPS is not entitled to a renewal expectancy for its past performance or comparative credit for its current proposal: and ( 4) that time-sharing would serve the public interest. 6. As the ALJ observed, this is a case of first impres­ sion. While both the Commission and this Board have experienced many comparative contests between appli­ cants for new broadcast stations on frequencies specifically reserved for noncommercial applicants, see, e.g., Cleveland Bo,zrd of Education, 87 FCC 2d 9 (1981); New York University, 10 RR 2d 215 (l 967)(hearing designation or­ der), 19 FCC 2d 358 (Rev. Bd. l 969)(decision); Black Television Workshop of Santa Rosa, Inc .. 65 RR 2d 34 (Rev. Bd. 1984); Southeastern Bible College, Inc .. 85 FCC 2d 936 (Rev. Bd. 1981), review denied. FCC 82-271, re­ leased June 11, 1982; Pacifica Foundation. 21 FCC 2d 216 (Rev. Bd. 1970), as well as comparative contests between commercial renewal applicants and challengers for the same frequency, see, e.g .. Radio Station WABZ, Inc., 90 FCC 2d 818 (1982), aff d sub nom. Victor Broadcasting, Inc. v. FCC, 722 F.2d 756 (D.C. Cir. 1983): Cowles Broad­ casting, Inc .. 86 FCC 2d 993 (1981), aff'd sub nom. Central Florida Enterprises, Inc. v. FCC, 683 F.2d 503 (D.C. Cir. 1982), cert. denied, 460 U.S. 1084 (1984 ); Tele-Broadcasters of California, Inc., 58 RR 2d 223 (Rev. Bd. 1985): Pillar of Fire, 99 FCC 2d 1256 (Rev. Bd. 1984), review denied, 2 FCC Red 519 (1987); Intercontinental Radio, 98 FCC 2d 608 (Rev. Bd. 1984 ). modified, 100 FCC 2d 817 ( 1985); Kaye-Smith Enterprises, 98 FCC 2d 675. recon. denied, 98 FCC 2d 670 (Rev. Bd. 1984 ). review denied, FCC 85-192, released April 19, 1985, aff'd by judgment subnom. Hoffart v. FCC, 787 F.2d 675 (D.C. Cir. 1986). there has been no prior case in which the Commission has been called upon to compare an incumbent noncommercial renewal ap­ plicant as against a new competing applicant for that same frequency, on either a total or a time-share basis. 9 Hence. whereas the briefs before us are uncommonly well- 4 FCC Red No. 2 Federal Communications Commission Record FCC 88R-70 drafted. some of the more fundamental decisional issues are not perfectly joined. owing no doubt to the absence of direct precedent which would provide an accepted analyt­ ical framework within which the contending parties might clash. There is, for conspicuous example, not the slightest agreement between the applicants on the ele­ ments to be considered toward a potential renewal expec­ tancy for noncommercial broadcasters. Straw contends that the sine qua non for a noncommercial broadcaster is the provision of "alternative" programming. and it faults KNHC-FM for operating with a popular music entertain­ ment format. For its part. SPS leans greatly on the use of its station as a vocational training classroom for students interested in future radio careers. There is also a sharp dispute over whether a "comparative coverage" advantage is even cognizable in a noncommercial comparative re­ newal setting, let alone the dispositive factor Straw sub­ mits. Because we find that both parties, as well as the ALJ in some respects. have misapprehended the Commission's regulatory policies regarding noncommercial stations and/or the appropriate elements for comparison, we at­ tempt below to sort out the issues and imprint existing Commission policy and precedent on the principal mat­ ters in dispute. While we ultimately affirm the conclusion of the ALJ on the award of a strong renewal expectancy to KNHC-FM. we differ somewhat with his reasoning. and we differ as well with certain of his conclusions under the standard noncommercial comparative issue; the I.D., therefore, is modified as indicated herein. II. RENEWAL EXPECTANCY 7. Although neither the Commission's original Hearing Designation Order nor its reconsideration Memorandum Opinion and Order included a specific renewal expectancy issue, compare Empire State Broadcasting Corp., 2 FCC Red 2793 (1987)(revised comparative hearing designation order adding specific renewal expectancy issue), the ALJ imputed a renewal expectancy issue into his comparative deliberations, based upon the reasoning of the Commis­ sion and the court in Central Florida Enterprises, supra. See l.D., para. 268. In so doing, the ALJ found that the compound rationale for awarding a renewal expectancy to a noncommercial applicant that had rendered meritorious service in its past license term was as applicable here as in the commercial milieu: ( 1) to reward meritorious perfor­ mance; (2) to encourage investments in quality service; and (3) to foster stability in the broadcast industry. Id., para. 269. Moreover. as we recently observed in Video 44, 3 FCC Red 3587, 3592 (Rev. Bd. 1988), the courts have held for more than half a century that: It is not consistent with true public convenience, interest, or necessity, that meritorious stations ... should be deprived of broadcasting privileges when once granted to them, which they have at great cost prepared themselves to exercise, unless clear and sound reasons of public policy demand such action. The cause of independent broadcasting in general would be seriously endangered and public interests correspondingly prejudiced, if the licenses of estab­ lished stations should arbitrarily be withdrawn from them. and appropriated to the use of other stations. This statement does not imply any derogation of the controlling rule that all broadcasting privileges are held subject to the reasonable regulatory power of 627 the United States, and that the public convenience, interest, and necessity are the paramount consider­ ations. Chicago Federation of Labor v. Federal Radio Commission, 41 F.2d 422. 423 ( D.C. Cir. 1930). More recently than that, the court has deduced that an expectancy of renewal for meritorious past service is derived directly from the dynamics of the Communications Act of 1934, Greater Boston Television Corp. v. FCC. 444 F.2d 841, 854 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971). See also Central Florida Enterprises. Against the weight of this au­ thority. Straw has not contended frontally that the re­ newal expectancy concept is any less apposite in the case at bar. l.D., para. 270 10; Straw simply challenges the fac­ tors considered by the AU. and the manner in which those factors were applied in this case. A. Factors To Be Considered (1) Straw's" Alternative" Programming Argument 8. Pervading Straw's attack on the SPS stewardship, both in the past broadcast record of KNHC-FM and SPS's proposed continuation of that operation, is Straw's claim that in utilizing a popular music entertainment format which "mirrored" that of a commercial broadcast station, SPS failed in its "core" obligation to provide "alternative" programming to that offered by other stations in the community. 11 Straw charges that KNHC-FM "operates as completely as possible like a commercial station and sim­ ply adds to the glut of popular music available on the commercial FM band." 12 It complains: "The (KNHC-FM] format is popular 'dance music' rotated according to com­ puter- generated 'plot sheets' or play lists. No attempt is made to provide any 'alternative' to popular music al­ ready available in the market." 13 In so doing, Straw main­ tains, SPS has defaulted on the obligation imposed directly under Section 396\a) of the Communications Act of 1934, 47 U.S.C §396(a). 4 which. in pertinent part and with Straw's emphasis added, reads as follows: (a) The Congress hereby finds and declares that-- (1) it is in the public interest to encourage the growth and development of public radio and televi­ sion broadcasting, including the use of such media for instructional. educational and cultural purposes (5) it furthers the general welfare to encourage pub­ lic telecommunications services which will be re­ sponsive to the interests of people both in particular localities and throughout the United States, which will constitute an expression of diversity and ex­ cellence, and which will conslitute a source of alter­ na1ive telecommunications services for all the citizens of the Nation. Straw further quotes the 1981 Ho use Report amending Section 396(a) as evidence of a Congressional intent "to impose a duty on noncommercial broadcasters to provide diverse 'alternative' programming. in addition to their duty ... to serve 'instructional, educational, and cultural purposes.'" 15 In contrast to the popular music entertain- FCC 88R-70 Federal Communications Commission Record 4 FCC Red No. 2 ment format programmed by KNHC-FM. Straw raises as an exemplar its own proposed entertainment format, sum­ marized by the ALJ as follows: Jack Straw's proposed program schedule consists of 131.5 hours per week. Elizabeth Sinclair, Jack Straw's principal programming witness, was asked about each of the programs in the schedule. She acknowledged that 95 hours of programming (72 percent of the total) involves music, with large blocks of time devoted to jazz (20.5 hours) and folk music (18 hours), and 56.5 hours consisting of "oth­ er" music, including music of other countries (e.g., India, Turkey and other countries), gospel music, blues, classical music, vintage rock, reggae, East Texas country music, and fusion jazz. An additional 15 hours of programming each week consists of repeats of some of the music programs, for a total of 84 percent music programming. The remaining 21 hours in the proposed schedule consist of a mix of readings, poetry, conversations, children's program­ ming, news broadcasts, public affairs, and general informational programming. I.D. at para. 212 (record citations omitted). Quoting from the Commission's 1984 order deregulating noncommercial radio, Straw asserts that its proposed en­ tertainment format, but not KNHC-FM's, properly con­ forms to the Commission's view that the entertainment programming of noncommercial stations "will provide their communities with significant alternative program­ ming designed to satisfy the interests of the public not served by commercial broadcast stations" and that such programming will be "very different, in programming terms, from their commercial counterparts," Program Policies and Reporting Requirements Related to Public Broadcasting Licensees, 98 FCC 2d 746, 751 (1984) (Deregulation Order). 9. The SPS riposte to Straw's critique of its entertain­ ment format is oblique, and - as with much else of its brief - couched deeply in its use of the station as a vocational classroom. The SPS thesis is that "a station that mirrored the operation of a commercial station would better prepare students for employment or. further educa­ tion in the field." 16 At hearing, SPS indicated that, from 1981-1983, KNHC-FM "featured a predominantly rhythm and blues sound," but it shifted to a "Top 40" format of "'dance music' - music characterized by a strong and steady 4/4 beat, which creates a distinctive and 'danceable' sound that has been identified with Station KNHC" - after a local commercial station shifted to a rhythm and blues format. ID., para. 24. SPS further explained that its choice of "teen" music was intended to lure students to the school's vocational program, and to establish an au­ dience of teens to whom a portion of its nonentertainment programming was directed. Id. 10. As a rudimentary matter, we reject Straw's doctrinal postulate that the term "alternative" programming has the talismanic potency ascribed to it by Straw. First, we do not construe the language of Section 396(a) of the Com­ munications Act to establish either operational or license renewal standards for noncommercial broadcast stations. The language highlighted by Straw is contained in a 1981 amendment to the original Public Broadcasting Act of 1967, and sets forth the Congressional basis for establish- 628 ing and continuing to fund with public tax monies the Corporation for Public Broadcasting, see Section 396(b),17 to which the declarative and rather precatory language is directed as a guideline for the Corporation's own funding activities. Cf. Public Radio and TV Programming, 87 FCC 2d 716, 736-737 (198l)(Notice of Proposed Rule Making). As Straw is no doubt aware, this Commission's reserva­ tion of broadcast frequencies for noncommercial broad­ casters antedates the 196 7 CPB Act by many years - 1952 for television stations18 and 1945 for FM radio stations. 19 As will be demonstrated, the relevant statutory standard for renewing a noncommercial broadcast station is the "public interest, convenience, and necessity" language of Section 307(c) of the Communications Act, 47 U.S.C. §307(c), as that statutory standard has been interpreted and implemented by the Commission. 11. Which brings us to our second reason for rebuffing Straw's fixation on "alternative" entertainment program­ ming. Over the years, the Commission has several times formulated the "public interest" requirements for noncommercial broadcast stations. In the main, these obligations have come to very much parallel those applied to commercial stations. Thus, in 1973, the Commission reviewed the history and purpose of noncommercial sta­ tions. Though recognizing that the "noncommercial broadcast service, by definition, differs markedly from the commercial service," Educational Broadcast and Renewal Applications, 42 FCC 2d 690, 694 (1973), the Commission also noted, even then, that: When noncommercial frequencies were first allo­ cated, applications by educational institutions seek­ ing to meet their own institutional needs predominated. The present profile of noncommercial educational stations, however. is quite different, as petitioners have pointed out. Al­ though many stations still devote a portion of their broadcast day to instructional programming, the major. part of that day, particularly evening hours and weekends, is occupied by programming which is aimed at a broad spectrum of community prob­ lems, needs and interests. Id. (footnotes omitted). After studying the evolution of the noncommercial broadcast service, the Commission con­ cluded that: [I]t is a mistake to regard the noncommercial ser­ vice as something apart from, and outside of, the basic structure of the Communications Act and Commission policies. The Act and its legislative his­ tory and our own pronouncements make clear the obligations imposed on educational broadcasters and the authority of the Commission to examine wheth­ er educational broadcasters have sought to ascertain and to meet community needs and to contribute to the goal of an informed electorate through con­ troversial issue programming. 4 FCC Red No. 2 Federal Communications Commission Record FCC 88R-70 * * * [T]he Commission agrees . . . that noncommercial educational broadcasters should be attuned to the problems, needs and interests of their service areas and should present programming in response there· to. Id., at 694-695 (footnote omitted).20 12. In 1976, the Commission revisited the essential obligations imposed on noncommercial broadcasters and restated: that the role of noncommercial educational broad· casting has never been precisely defined ... (We] declined to do so in this proceeding because we believed that "the flexi- bility and freedom of the service is, in large part, fundamental to its exis­ tence." We recognized that it was not the legislative intent of Congress to limit these broadcasters solely to educational and cultural programming, but that the · Communications Act of 1934, as amended in 1967, expressed a Congressional firiding "that expansion and development of noncommercial educational ra­ dio and television broadcasting and of diversity of its programming depend on freedom, imagination, and initiative on both the local and national levels." 47 U.S.C. 396(a)(2). Ascertainment of Community Problems by Noncommercial Educational Broadcast Applicants, 58 FCC 2d 526. 529 (1976)(emphasis added). And, it observed that "[i]t is evi­ dent that the role of the noncommercial educational ser­ vice has grown from purely 'instructional programming' to include a broader variety of 'public programming."' Id., at 536. For noncommercial FM radio stations, the Commission there modified, but squarely reasserted, the core requirement that such stations respond to "the prin­ cipal needs and interests" ascertained in the community. Id., at 537. Still again in 1981, the Commission restudied at length the history of noncommercial broadcasting and held: We believe that at least four matters are of primary importance when considering the programming re· sponsibility of public broadcasters under the general "public interest" standard of the Act. We will out· line each of these below. They are: (1) the intent of Congress in fostering the public broadcast service as evidenced in relevant legislation; (2) the Commis­ sion's traditional desire to avoid all unnecessary in­ trusion into the programming decisions of licensees, including those of public broadcasters; (3) the Com­ mission's historical policy of allowing other forces to determine the character and content of the public broadcasting service[;] and (4) the Commission's re-. cent policy of recognizing and relying upon social and market forces in broadcasting which lead to positive public interest results without specific Com­ mission intervention. Public Radio and TV Programming, supra, 87 FCC 2d at 730. It further distanced itself from a supervisory role over program content by stating: 629 Character and Content of Public Broadcasting. The basic role of the FCC in the history and develop­ ment of public broadcasting has been to insure that spectrum space is available for its use and to broadly classify its program service. It has meant that the Commission has had the appropriately limited role of facilitating the development of the public broad­ casting system rather than determining the content of its programming. From the perspective of the Commission. public broadcasting is characterized largely by a negative distinction, i.e., public stations are not operated by profit seeking organizations nor supported by on-the-air advertising. The positive di­ mensions of public broadcasting are determined by social, political, and economic forces outside the Commission. * * * Rather than imposing one unified and comprehen­ sive standard for public broadcasting, the Commis­ sion has allowed those who operate, support, and consume public broadcasting to directly determine the nature of its service, especially its programming. Id., at 732 (emphasis added). 13. Having thrice in eight years detailed the maturation of noncommercial FM radio stations, and laid out the basic standards by which such stations would be judged at renewal time, it is instructive to peruse a sample of license renewal cases involving noncommercial broadcast cases to pinpoint the Commission's performance focus. For example, in renewing the license of Station WHYY­ TV, Wilmington, Delaware, the Commission held that, like a commercial broadcaster, a noncommercial "licens­ ee's prime and most important focus must be on the problems, needs, and interests of its community of li­ cense." WHYY, Inc., 93 FCC 2d 1086, 1096 (1983). In renewing an earlier license for that same Station WHYY­ TV, the Commission stressed that, "while a licensee is required to serve ascertained needs in its overall program­ ming, the decision as to how much programming to present concerning which needs is largely within the li­ censee's reasonable good faith discretion." WHYY, Inc., 53 FCC 2d 421, 425 (1975). Accord, Community Television of Southern California, 72 FCC 2d 349, 354 (licensee is af­ forded broad discretion to meet the diverse needs of groups within its service area), recon. denied, 46 RR 2d 1103 (1979); Mississippi Authority for Educational Televi­ sion, 71 FCC 2d 1296, 1308 (1979), recon. denied, FCC 80-305, released May 29, 1980. In short, the Commission's historic function in gauging whether a noncommercial licensee has earned a renewal "is the very limited one of assaying ... whether the licensee's programming, on an overall basis, has been in the public interest and . . . whether he has made programming judgments reasonably related to the public interest." Pacifica Foundation, 36 FCC 147, 149 (1964). See also Georgia State Board of Education, 70 FCC 2d 948, 949-963 (emphasizing duty of noncommercial licensee to ascertain needs and interests of its service area and to exercise its broad discretion to determine in good faith which needs will be met and the substance of programs to meet those needs), recon. denied, 71 FCC 2d 227 (1979). FCC SSR-70 Federal Communications Commission Record 4 FCC Red No. 2 14. Straw's jeremiad against KNHC-FM for its failure, in Straw's view, to concentrate on "alternative" or "niche" entertainment programming inspires us. in Shakespeare's lyric, to "summon up remembrance of things past" and find ourselves beset with "old woes new wail." 2 For it seems that the war between Straw's percep­ tion of the bedrock duty of a noncommercial broadcaster to provide "alternative" programming, such as the ethnic­ oriented and foreign language fare that appears in its own proposal, and a more generalized obligation - within the wide boundaries of licensee discretion - to respond to ascertained community needs, problems and interests was a skirmish rehearsed at the Commission more than a decade ago. Compare Puerto Rican Media Action and Edu­ cational Council, Inc., 51 FCC 2d 1178 (1975) with Dis­ senting Statement of Comm'r Benjamin L. Hooks, id., at 1195. In that case, the Commission majority rejected a complaint that a noncommercial broadcaster had de­ faulted on its alleged basic duty to provide specialized "niche" programming. Its opinion stated that: in assessing whether a licensee's programming has been responsive to the needs of its community, we have consistently held that programming which is responsive to the needs of a community in general, need not be shown to be responsive to the particu­ lar needs of each individual group within that com­ munity. Id., at 1181 (footnote omitted). The majority thereafter reiterated that, in assessing a noncommercial licensee's overall performance, "the Commission has always given its licensees great discretion in programming choice, so long as it meets the problems and needs of its commu­ nity." Id., at 1183-1184. As should by now be abundantly clear, the Commission's focus, and its renewal perfor­ mance standard, for contemporary noncommercial broad­ cast stations is on a station's issue-responsive pro~ramming, much as it is for commercial broadcast­ ers. 2 While noncommercial broadcasters may present these issues in a manner that differs from their commer­ cial counterparts (as did SPS, see infra para. 51), it is upon such a licensee's issue-responsiveness that the klieg lights fall at renewal time. 15. An independent reason for resisting Straw's entreaty to review a licensee's performance from the standpoint of "alternativeness" is the omni-present force field of the First Amendment. With specific respect to noncommercial broadcasters, the Commission has ob­ served: Programming Regulation. The Commission's role in the programming decisions of all broadcasters has always been profoundly affected by its sensitivity to the First Amendment rights of the public and of broadcasters and the specific noncensorship provi­ sion of Section 326 of the Act. This reluctance to interfere with free speech as a matter of constitu­ tional and statutory law also has been respected by this Commission as a matter of sound public policy. Public Radio and TV Programming, supra, 87 FCC 2d at 731-732 (footnote omitted). See also Puerto Rican Media Action and Educational Council, supra, 51 FCC 2d at 1183-1184; Deregulation Order, supra para. 8, 98 FCC 2d 630 at 750-752. This is profoundly true insofar as Straw's lament is directed toward KNHC-FM's entertainment for­ mat, an area from which the Commission prudently evac­ uated many years ago. FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981). While Straw would have the Commission reenter this thicket and subjectively calibrate a noncommercial licensee's programming performance on the alternativeness, vet non, of a licensee's entertainment programming, its brief elsewhere recognizes that23: The showings made by the incumbent must be ob­ jectively assessed by reference to verifiable standards of evaluation if the Commission is to avoid proceed­ ing by "administrative feel" or some other "intuitional forms of decision-making, completely opaque to judicial review .... " No "verifiable standard" is isolated by Straw's apotheosization of the term "alternative," as witness the fact that although Straw proposes a format largely consist­ ing of "jazz," "folk," and "ethnic" music selections, the aforementioned KCMU-FM, another noncommercial sta­ tion licensed to Seattle (see supra note 2), is reported as providing "Alternative mus[ic], rock/ ethnic." 24 It could be, therefore, that Straw's proposed programming might itself be considered insufficiently outre', were we to de­ ploy Straw's "alternative" entertainment format standard. Furthermore, though Straw complains that KNHC-FM's dance music entertainment format mimics that of or­ dinary commercial stations. the Commission recently noted without disapprobation in a case relied upon in Straw's own brief that: We recognize the fact that noncommercial educa­ tional FM stations may present a wide variety of programming including such matters as light enter­ tainment, gospel or popular music, and sports. Way of the Cross of Utah, Inc., 101 FCC 2d 1368, 1371-1372 n.S (1985)(quoting noncommercial eligibility licensing guidelines). In fact, following the Supreme Court's decision in WNCN Listeners Guild, supra, we are aware of no case in which the Commission or the courts have paid the slightest attention to. the entertainment component of a licensee's programming.25 The entertain­ ment format of KNHC-FM is of no moment here. And, finally, although Straw elevates the term "alternative" mentioned in Section 396(a) of the Communications Act to an operational imperative, but cf. Public Radio and TV Programming, supra, 87 FCC 2d at 731 (Section 396 directives "not specifically directed to the role of this Commission in public broadcasting), it omits mention of a companion section of the Act, Section 398, which, in pertinent part, reads as follows: (a) Nothing contained in this part shall be deemed . .. (2) ... to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over public telecommunications, or over the Corporation or any of its grantees or contractors, or over the charter or bylaws of the Corporation, or over the curriculum, program of instruction, or personnel of any educa­ tional institution, school system, or public telecom­ munications entity. 4 FCC Red No. 2 Federal Communications Commission Record FCC 88R-70 16. For all of the foregoing reasons, we find that to the extent that a noncommercial FM radio station is mea­ sured at renewal time by its programming performance, the Commission has signaled that it is upon efforts to respond to local community needs, problems and interests that we concentrate. Expressum facit cessare taciturn. We take up SPS's endeavors in this regard, infra, paras. 29-39. (2) SPS" Vocational Training" Argument 17. Straw next submits that SPS certainly should have received no bonus towards a renewal expectancy for its use of the frequency as a vocational training classroom for high school students. Quoting the Commission's language in Multiple Ownership of Noncommercial Educational Ra­ dio, supra note 16, 54 FCC 2d at 948,26 Straw asserts that the Commission was there ambivalent about the reserva­ tion of such frequencies "for in-school instructional pur­ poses 'when other means may well be available to do this without using a TV or FM broadcast channel."' Straw Exceptions at 30-31 (footnote omitted). It recites the more recent language of Way of the Cross, supra, where the Commission rejected the argument of an unsuccessful applicant for a noncommercial TV channel that the Com­ mission should consider that applicant"s intended use of the station for vocational training. The Commission there stated: The fact that (the noncommercial applicant] will offer on-the-job training does not distinguish it from any other broadcaster, commercial or noncommercial, and such training has never been considered as a factor in determining an applicant's eligibility to operate on a reserved channel. 101 FCC 2d at 1375 n.10. 18. The instant I.D. reflects that the ALJ considered a mountain of evidence regarding SPS's use of the station as a vocational training device and as a curricular compo­ nent of the high school's course of instruction. Id., paras. 22-50. Therein, the ALJ recounted testimony and other evidence of the following nature: that the students were taught the history of broadcasting, electronics theory, spe­ cific job functions common to commercial stations (e.g., announcing, station management, engineering, FCC com­ pliance), cultural awareness, "team effort," and individual responsibility. In computing a potential renewal expec­ tancy for SPS, the ALJ eschewed the proposal of the Mass Media Bureau that he utilize the performance standards generally applicable to commercial stations, i.e., issue· responsive programming keyed to ascertained community needs, problems and interests, reputation in the commu­ nity, compliance with FCC rules and regulations. Id., para. 271. Finding the Mass Media Bureau's focus "too narrow" and "incomplete since it has completely over­ looked the educational aspects of the School System's stewardship," id., it is obvious that the ALJ's conclusion that SPS "is entitled to the greatest credit in terms of a renewal expectancy," id., at para. 277, was influenced materially by his positive view of the school's vocational program. The ALJ also credited these vocational training facets of the SPS record in favoring SPS under the stan­ dard noncommercial comparative issue (Issue 4), see id., paras. 278-280, a matter we review infra, paras. 61-62, in our analysis of the exceptions to the I.D. 's comparative evaluation. 631 19. SPS champions the I.D. in this respect, and pleads that the Commission language cited by Straw "cannot be read to preclude credit being given to an educational institution for doing what it is supposed to do - train students. "27 At oral argument before the Board, SPS counsel was quizzed as to whether SPS was aware of any Commission case or policy statement supporting the no­ tion that curricular vocational training was a cognizable element in the agency's regard for noncommercial FM station renewal performance. Counsel offered that the Board's New York University, supra, did take notice of the fact that NYU had offered courses in radio for many years, that its proposed station would be a logical out· growth of its past activities, and that station would func· tion as a "valuable tool for putting into practice in an actual broadcasting operation the lessons of the class· room." 19 FCC 2d at 368. Counsel also propounded the commonly held view "that the training of teenagers in this nation at this time is a service to the community. " 28 20. After examining the skein of Commission policy statements directed to noncommercial FM licensees, and issued during the nearly two decades since the Board's dictum in New York University, we find ourselves in essential accord with the Mass Media Bureau that, for purposes of measuring a station's past performance, our basic renewal standards are virtually the same for noncommercial and conmmercial stations, and that no consideration, pro or con, be given to any vocational training element of a licensee's operation. In paragraphs 11-14, supra, we have traced the metamorphosis of noncommercial broadcasting, as seen through the eyes of the Commission, from a nascent medium in which the institutional needs of the licensee predominated, see Edu­ cational Broadcast and Renewal Applications, supra, 42 FCC 2d at 694, to a point where the Commission has lately perceived that the grand incident of contemporary noncommercial stations is that such stations "are not operated by profit seeking organizations nor supported by on-the-air advertising." Public Radio and TV Program­ ming, supra, 87 FCC 2d at 732. 21. Starting in 1973, and incrementally thereafter, the Commission began to voice its concern that the dwindling inventory of noncommercial broadcast spectrum space be utilized to some reasonable degree for community-ori ­ ented service. See, e.g., Educational Broadcast and Renewal Applications, supra (42 FCC 2d 690); Ascertainment of Community Problems by Noncommercial Educational Broadcast Applicants, supra (58 FCC 2d 526 (1976)). By 1978, the Commission was compelled to declare that: The passage of time and resulting changes in spec­ trum needs requires us to examine all these matters anew. Although the noncommercial educational FM channels have long been reserved, it has only been recently that the demand for their use has increased greatly. Noncommercial Educational FM Broadcast Stations, supra note 18, 69 FCC 2d at 243. It there for the first time adopted m1mmum operating schedules for noncommercial stations, and it specifically rejected the pleas of educational institutions (including high schools) that such minimum operating schedules were incompati­ ble with the operation of those stations by students. The Commission contemplated these complaints: FCC SSR-70 Federal Communications Commission Record 4 FCC Red No. 2 A number of such stations pointed to their reliance on student staff members, most of whom, they said, would not be available during vacations and holi­ days. Other costs involved in extending the hours of operation such as maintenance, security, engineer­ ing supervision, tape rental costs and utility cost were also mentioned. Some felt that even if stations were not forced off the air, they could be put in the position of having to ask students to withdraw from their other activities if they were required to partici~ pate on the level required by a minimum operating schedule. In many cases, stations said volunteers are an important part of their staff and that it would be unrealistic to .expect that their time at the station could be increased to meet a minimum schedule. Id., at 252. And, it further reflected: The proposal for a minimum schedule was also at­ tacked as a hardship for high school stations. Since state law typically requires such students to be su­ pervised at all times when participating in school activities, a minimum schedule, we were told, would mean a significant increase in cost to provide such supervision. We were warned that in times of severe budget restrictions, the necessary funds might not be available. This concern led one party to suggest exempting elementary and high school sta­ tions but not college stations from a minimum schedule requirement. Id. (emphasis added). But, the Commission countered: The comments offer a great deal of insight into the preferences of individual stations and in particular to the desire of a number of them to avoid any requirements regarding the number of hours they need to operate. However, these stations gave little attention to the public's right to expect that a station occupying a frequency would use it to a reasonable degree to provide a service to the public. Spectrum space is scarce and is becoming more so. In fact, in many parts of the country, there is little or no spectrum space available to accommodate additional services. Id., at 254 (emphasis added). 22. The unmistakable inference to be drawn from the language of the host of policy documents relating to noncommercial broadcast service, including those directly relating to FM radio stations operated by high schools, is that irrespective of the nature of the licensee, the Com­ mission's performance expectations center on the licens­ ee's service to the listening (and viewing) community, and not on service to the licensee itself. As verified by this very case, the demand for noncommercial FM frequencies exceeds their availability, and not every high school, uni­ versity, and/or educational organization that desires a broadcast frequency can obtain one. That is why the Commission has indicated that other methods of voca­ tional training are available, short of allocating very scarce broadcast spectrum for that internal purpose.29 SPS is implicitly aware of this alternative opportunity to train vocational students, since it has a classroom "devoted 632 continuously to television production activities," I.D. at para. 20. and it teaches courses in both radio and televi­ sion, id., para. 22, but it has no television station license. 23. Dissuading us further from judgmental pronounce­ ment on the vocational training aspect of the SPS record, apart from the glaring fact that the Commission has never explictly identified that activity as either a regulatory ob­ ligation or a renewal asset, is that this agency has never promulgated standards by which such an activity might be measured. For instance, SPS awards itself an "A+" for the quality of its vocational training program, whereas Straw grades it an "F." Compare SPS Reply at 22 with Straw Exceptions at 36-37. SPS would have it that adoles­ cent vocational training is self-evidently in the public interest, a fact we do not deny, yet the Supreme Court has reminded that "the use of the words 'public interest' in a regulatory statute is not a broad license to promote the general public welfare. Rather. the words take meaning from the purposes of the regulatory legislation." NAACP v. FPC, 425 U.S. 662, 669 (1976); cf. Community Televi­ sion of Southern Calif. v. Gottfried, 459 U.S. 498, 509 n.14 (1983). In the numerous policy statements we have referenced in the previous paragraphs, the Commission has limned, and refined, the "public interest" standard of the Communications Act with respect to noncommercial radio stations, and the case law narrowly frames the Com­ mission's purview in the ambit of noncommercial license renewal. With neither expertise nor experience in assess­ ing the quality of vocational training programs, this Board certainly has no pedagogic benchmark for assaying wheth­ er the SPS curriculum was superior, meritorious, or merely mundane. What the Board does have, however, is a record of station broadcast performance that can be measured objectively against the community-oriented pro­ gram standards annunciated by the Commission in its many visitations. 24. None of this - we are at pains to emphasize - is to be read to imply that the use of a noncommercial broadcast station as a vocational classroom is discouraged by the Commission, which is well and contentedly aware of such utilization by many educational institutions holding FM broadcast licenses. See Noncommercial Educational FM Broadcast Stations, supra, 69 FCC 2d at 252. However, SPS-witness after SPS-witness testified that the crowning monument of the KNHC-FM vocational training exper­ ience is that it affords a "real" radio station environment to students, as opposed to an "electronic sandbox .... See, e.g., I.D., paras. 52-62, 310. It is, therefore, superfluous to monish SPS further that KNHC-FM is a real FM radio station, burdened by enforceable public interest duties to the Seattle listening community; and it would occur, in passing, that the vocational training of SPS students would in any event be enhanced by holding KNHC-FM to the same FCC performance and renewal requirements as all other broadcast stations, and diminished to the degree that occupational training, in and of itself, were considered a renewal performance "plus" available nowhere else in the "real" world of domestic broadcasting.30 (3) SPS Hours of Operation 25. Straw next contends that the renewal expectancy awarded by the ALJ should have been pared for "SPS's failure to operate KNHC on a full-time [i.e., 24 hours per day] basis." 31 Straw would sculpt any such credit even closer in view of the fact that "[bJetween 1981 and 1983, SPS contracted away 28 hours a week of prime broadcast 4 FCC Red No. 2 Federal Communications Commission Record FCC SSR-70 time to Seattle Central Community College." and that during that period Nathan Hale High School's "use of the frequency was essentially limited to school hours and school days."32 SPS rejoins that, but for the aforemen· tioned seven month period when KNHC-FM averaged only 67 hours per week (see supra para. 3), "KNHC operated at or above 84 hours per week both before and after the temporary reduction in hours." 33 The Mass Me­ dia Bureau supports SPS in this feud, opining that "[t]o the extent that the station broadcast less than the required number of hours for a limited time during the license period, the I.D. properly concluded that the School Sys­ tem's overall performance was not diminished. " 34 The Mass Media Bureau additionally maintains that the tem­ porary reduction in hours was excusable, as it resulted from a reduction in state fundinf, a happenstance "be· yond the control of the licensee."3 26. Without holding that a licensee's hours of opera­ tion, if truly minimal, can never be taken into consideration in computing a licensee's renewal expec­ tancy,36 we find that the operating schedule of KNHC-FM - averaging as it did more that 12 hours per day for the great percentage of the license term - was more than adequate under Commission standards to avert any dim­ inution of renewal expectancy credit. First of all, the Mass Media Bureau misstates (as did the Board at oral ar­ gument, see Tr. of Oral Arg. at 2793-2794) the Commis­ sion's minimum operating strictures for noncommercial stations when it suggests that SPS "broadcast less than the required number of hours" for the said seven-month pe­ riod. Section 73.561(a) of the Rules, 47 CFR §73.56l(a), specifies: (a) All noncommercial educational FM stations will be licensed for unlimited time operation except those stations operating under a time sharing ar­ rangement. All noncommercial educational FM sta­ tions are required to operate at least 36 hours per week, consisting of at least 5 hours of operation per day on at least 6 days of the week; however, stations licensed to educational institutions are not required to operate on Saturday or Sunday or to observe the minimum operating requirements during those days designated on the official school calendar as vaca­ tion or recess periods. At no time did SPS fall below that prescribed minimum. 27. Second, when SPS experienced budget difficulties that threatened its station's 84 hour per week operating schedule, SPS initiated discussions looking towards a po­ tential time-sharing arrangement with another educational institution or organization. I.D., para. 143. Although SPS held discussions in 1981 with, among others Straw itself, id., it ultimately entered an arrangement with Seattle Cen­ tral Community College (SCCC), whereby SCCC operated for 28 hours per week from SCCC's own remote studio, under the supervision of Gregg Neilson, an SPS employee at that time. Id., para. 144. The SPS/SCCC arrangement was perfectly permissible under Section 73.503(c) of the Commission's Rules, 47 CFR §73.503(c) which, in per· tinent part, reads as follows: 633 A noncommercial educational FM broadcast station may broadcast programs produced by, or at the expense of, or furnished by persons other than the licensee, if no other consideration than the furnish­ ing of the program and the costs incidental to its production and broadcast are received by the li­ censee. Straw does not here insist that the SPS arrangement with SCCC amounted to an abdication of licensee control, as in Trustees of the University of Pennsylvania. supra note 33. Nor does it here contend that the SPS/SCCC arrangement transgressed any other Commission rule or policy. Ac­ tually, the gravamen of Straw's assault on the SCCC pro· gram sharing arrangement seems not to be that the arrangement was not in the public interest, but that the arrangement was with SCCC rather than with Straw. 37 Nothing in Straw's exceptions explains why the SPS arrangment with SCCC - a quasi-time-share of SPS's own choosing - should, standing alone, detract from SPS's renewal expectancy. 38 28. Third, the Commission has deliberately chosen a very precise regulatory mechanism, in Section 73.561(b), for addressing noncommercial stations that operate fewer than 84 hours per week. In adopting that rule, the Com­ mission made explicit that stations operating beIOw that level would not suffer at renewal time, see Noncommercial Educational FM Broadcast Stations, supra, 70 FCC 2d at 982, but it did augur a licensee's susceptibility to FCC imposed time-sharing under such circumstances. Id. Hence, the time-sharing issue designated in this very case. While the Commission has considered substantial differ­ ences in hours of operations as a comparative factor in comparative renewal cases, Simon Geller, supra note 25, 90 FCC 2d at 275-276,39 and we do touch upon the proposed hours of operation of the two applicants before us under the comparative issue, see infra para. 69, as well as under the time-share issue, see infra para. 78, we find nothing in the SPS record of hours of operation (12 hours per day for all but 7 months of license term) that would impact adversely on SPS's renewal expectancy. Compare Simon Geller (44 hrs., 27 min. weekly schedule considered on comparative basis only). B. SPS Broadcast Record (1) Issue· Responsive Programming 29. In paragraphs 70-79 of the I.D., the ALJ described a variety of public affairs programs produced locally and broadcast by KNHC-FM at various periods during the relevant license term.40 Such programs were: Action Line (October 1983 - end of license term); Beyond Our Shores (February 1981 - January 1982); Chinese Radio Program (February 1981 - October 1981); Mid - East International (passim) ; Spanish American Hour (April 1981 - Summer 1982); KNHC Public Affairs (February 1981 - November 1982); Community Calendar (1981, 1983); Briefs About Business (March 1981 - July 1981); Communique from Seattle Central Community College (February 1981 - July 1981 ); What's Happening In The Schools (June 1982 - October 1983). In the referenced I.D. paragraphs, the ALJ described the content of these programs and found that many addressed, inter alia, the special needs and problems of foreign-speaking and ethnic populations within the Seattle community; local problems such as crime and FCC SSR-70 Federal Communications Commission Record 4 FCC Red No. 2 drugs, educational opportunities. environmental concerns, public health issues, local cultural events (movies, theater, museu"ms), business news (career opportunities, interna­ tional money matters, federal budget cuts, employee in­ surance plans). The program What's Happening In The Schools contained segments on the school's desegregation plan, vocational competency, and test scores. Straw's ex­ ceptions do not challenge the I.D.'s findings in the referenced paragraphs, and we have no independent basis for so doing. These findings are incorporated by reference in our decision. 30. In addition to the licensee-produced public affairs programs, KNHC-FM broadcast a plethora of public af­ fairs offerings devised by other institutions, some of them local, and considered by SPS to be germane to the needs, problems and interests of Seattle. It is well-established that broadcasters, whether commercial or noncommercial in nature, are expected to serve local community needs, but may choose from non-local as well as local program sources to meet those needs. Renewal of Broadcast Li­ censes, 44 FCC 2d 405, 422 (1973)(It is not [the Commis­ sion's] intention to favor a particular program source or format, so long as the licensee's programming does, in fact, help to meet community problems and needs). The Commission has repeatedly recognized that national and institutional programming may acceptably meet local needs. See WHYY, Inc., supra, 93 FCC 2d at 1094-1098; Community Television of Southern California, supra, 72 FCC 2d at 353-354; Georgia State Board of Education, supra, 70 FCC 2d at 956-957; Regents of the University of New Mexico & Board of Education - Albuquerque, 47 FCC 2d 406, 412 (1974). Such KNHC-FM programs, described more fully in the ID., paras. 80-106, were: Black Beat (Spring 1983); Black Report (March 1982 to August 1982); Israel Magazine I Israel Press Review (February 1981 to August 1982); Longhorn Radio Network (February 1981 to June 1981); Man and Molecules (February 1981 to Janu­ ary 1983); Science in the News (February 1981 to June 1981); Sounds of Listen (February 1981 to August 1981); U. S. Public Policy Forum (April 1981 to August 1981); Women Break Through (March 1981 to May 1981); Ameri­ can Physical Fitness (April 1981 to May 1981); Aware (September 1983 to November 1983); Blacks Before Amer­ ica (Spring and Summer 1982, Fall 1983); Business of Being a Baby (February 1981 to September 1981); Cornell University (throughout license term); Energy Watch (Feb­ ruary 1981 to June 1982; November 1982 to March 1983); Everybody Can Be Somebody (March 1981 to July 1981); Farm and Foods Program (February 1981 to August 1981); For Your Information (August and November 1983); Forest Productivity (March 1983 to May 1983); Health File (Feb­ ruary 1981 to March 1982); Hemispheres (1981-1983 school years); Labor News and Views (1981 and 1983); NASA (throughout license term); Popular Science (June 1983 to October 1983 and in January 1984 ); Spot News (February 1981 to March 1982); Washington Report with Senator Slade Gorton (July 1983 to February 1984); Working in the Sighted World (February 1981 to May 1981). Straw has not challenged the ALJ's findings here either, and we incorporate his descriptions into this decision. 31. In paragraphs 111-124 of the l.D., the ALJ digested a number of other nonentertainment programs broadcast at various points during the license term, and regarded by SPS as being attentive to the needs, problems and interests of the community. These were: American Gardner (March 1982 to June 1982); Astrofecha/Star Date (September 1981 634 to December 1981 ): Audio News Features (passim); Gospel Music Program (June 1982 to February 1984); Horizontes (September 1981 to March 1982); Let's Talk (February 1981 to June 1981 ): Local Aiilitary Recruit of the Day (1981-1982 holiday session); One Minute Thoughts for Each Day (February 1981 to August 1981); Mother Earth News (February 1981 to November 1983); Pets and Vets (February 1981 to June 1981); Radio Nederland (February 1981 to April 1981); Tips for Home Gardeners (April 1981 to June 1981); What in the World Happened (February 1981); The Word (March 1982 to February 1984). 32. Throughout the license term, KNHC-FM broadcast news programs (of 4-5 minute duration) "several times a day to hourly." l.D., para. 107. These newscasts were produced by the school's students, and were ordinarily aired prior to 2:00 PM when the school day ended; few, if any, newscasts occurred on weekends. Id. But see Pillar of Fire, supra para. 6, 99 FCC 2d at 1263-1264 (local newsgathering is but one facet" of measuring responsive programming). 33. KNHC-FM also broadcast Public Service Announce­ ments for a considerable number of "local, regional and national public service organizations, governmental de­ partments and agencies, and colleges and universities." I.D., paras. 108-109.41 The ALJ found that the station featured the messages of 70 such organizations from Feb­ ruary 1981 to August 1981; 100 such organizations from September 1981 to August 1982: 120 such organizations from September 1982 to August 1983; and 65 such or­ ganizations from September 1983 to February 1984. Each year, the station offered its facilities to numerous or­ ganizations whose messages had not been aired previously. Again, Straw disputes none of these basic findings, which are likewise incorporated. 34. Straw fires a dual salvo against the ALJ's favorable consideration of the above programming. First, it pos­ tulates "that a noncommercial licensee's obligations are fundamentally different from those of a commercial li­ censee" in that "the responsive programming to which such [a renewal] expectancy would attach must be based on the process of programming addressing needs and interests not being provided by other broadcasters in the community, particularly commercial licensees." 42 It ar­ gues that a noncommercial licensee's ascertainment of local needs and interests "is not limited to non-entertain­ ment programming, but may include the need for a vast array of general educational, informational and cultural programming .... "43 Straw's second complaint is that the ALJ considered a great, undifferentiated mass of nonentertainment programming, but that "SPS provided no quantitative or numerical analysis of its non-entertain­ ment programming, [and] made no effort !O compare its non-entertainment programming with . . . commercial stations. "44 35. Straw's first shot, that issue-responsive programming is invalid towards a renewal expectancy unless geared to needs and interests not addressed by other broadcasters, is, of course, a variation on its theme of "alternativeness" discussed earlier. It is true, as Straw maintains,45 that the ascertaining of local needs and interests is a prerequisite to regarding a licensee's programs as issue-responsive. Si­ mon Geller, 90 FCC 2d at 264-265. During the license period here under consideration (February 1981 - Feb­ ruary 1984), the ascertainment procedures applicable to noncommercial broadcasters were contained in the Com- 4 FCC Red No. 2 Federal Communications Commission Record FCC 88R·70 mission's 1976 Ascertainment of Community Problems bv Noncommercial Educational Broadcast Applicants, supra, 46 where it announced that: [W/e shall permit noncommercial educational radio applicants and existing licensees to ascertain by any reasonable methods designed to provide them with an understanding of the problems, needs and interests of their service areas. This process is to be documented by a narrative statement regarding the sources con­ sulted, the survey methods followed and the princi­ pal needs and interests discovered. Additionally, educational radio renewal applicants are to com­ plete an annual list of up to 10 problems found in the community during the preceding 12 months, together with examples of programs broadcast to meet these problems. 58 FCC 2d at 537 (emphasis added). 36. The ALJ records, at paragraph 31 of the I.D., that SPS followed an ascertainment process as outlined: (1) The Public Affairs Director of KNHC-FM was responsible for the station's ascertainment process; (2) The Public Affairs Director occasionally accompanied the station's General Manager to regularly scheduled meetings between Seattle broadcasters and community leaders for purposes of identifying the top ten issues of concern to the public, based upon a statistical analysis of interview notes with those leaders; (3) the Public Affairs Director compiled the annual list for issue-responsive programming; ( 4) students in the stations's Public Affairs Department were assigned a broad topic taken from the list, as enlightened by ascertainment interview notes, and given a suitable subtopic for student-produced programs; (5) the programs thus produced were monitored before broadcast by the Public Affairs Director and the Program Director. There was further augmentation of this process: "(t]he station also commissioned a telephone survey of the general pub­ lic during the license renewal period" to confirm the identification of problems and interests by community leaders. Id., at para. 68. Potential Public Service An­ nouncements, of which there were approximately 100 per week, were screened by the station's Continuity Director. Id., para. 32. The ALJ reviewed this process, along with the programs produced thereunder, and concluded that "KNHC's public affairs programming covered a wide range of issues of community concern identified through the station's ascertainment efforts." Id., at para. 288. The ALJ also recognized the station's efforts with respect to news, id., para. 289, and Public Service Announcements. Id., para. 290. We too find that SPS has complied fully and faithfully with the Commission's 1976 Ascertainment requirements, and that it followed a systematic course designed to assure that the problems, needs and interests thus elicited would be covered in KNHC-FM program­ ming. 37. Straw's insistence that SPS failed in its duties be­ cause the station responded to the same top ten problems as other Seattle stations is bizarre. Had SPS dutifully compiled its annual top ten problems list, as required by the 1976 Ascertainment policy, and then ignored those locally pressing issues in favor of "alternative" program­ ming, it would have been in apparent violation of regnant FCC ascertainment and responsive programming stan­ dards. Catch 22, as it were. Moreover, once having ascertained those local problems. SPS could not have perfectly anticipated which of these other local stations intended to cover in the upcoming year, and any KNHC­ FM future programming plans to avoid these same issues "might [as] well have been the product of omphalic in­ spiration, or ornithomancy, or haruspication, or aleatory devices .... " Old Colony Bondholders v. New York, N.H. & H.R. Co., 161 F.2d 413. 450 (2d Cir. 1947)(Frank, J. dissenting in part)(footnote omitted). We find that the Commission's operative ascertainment requirements were clear, and followed to the letter by SPS. That Straw has contrived an "alternative" standard in its own self-image, see l.D., paras. 272-276, summons no mandate for this Board to ignore the ascertainment and responsive pro­ gramming standards imposed by the Commission. 38. Straw's second round at the SPS issue-responsive programming record is that SPS furnished "no quantita­ tive or numerical analysis" of its license term nonentertainment programming.47 It compounds this criticism by alleging that "SPS has not provided any sort of program schedule reflecting a representative or typical week"; that SPS "has provided a 'descriptive' rather than [a] 'quantitative' analysis of its nonentertainment pro­ gramming": that "(n]o summary of news, other nonentertainment programming, or PSA's [Public Service Announcements] is provided"; that SPS is "only willing to characterize" those programs" listed in paragraphs 29-31, supra, as "typical and illustrative issue-responsive pro­ gramming"; that such "programs ranged from 30 seconds to 15 1/2 minutes at various times on weekdays"; and, that by analyzing the SPS program exhibits, Straw demon­ strated that "at best ... KNHC broadcast no more than 2.5% nonentertainment programming."48 39. Filching another Shakespearean exclamation, "Zounds! I was never so bethump'd with words, Since I first call'd my brother's father dad."49 Rather than re­ spond discretely to each of the foregoing lamentations - for we are uncertain of the legal relevance or critical import of much of Straw's broadside - we will examine the content and character of the SPS program exhibits. The ALJ reports that: For purposes of this proceeding, the School System prepared and submitted a study of its nonentertainment programming -- including public affairs, news and sports programs, public service announcements, and other non- entertainment pro­ gramming -- based on an analysis of the program­ ming presented in the first and third full broadcast weeks (Sunday through Saturday) of each month from February 1981 through January 1984. The study was based on "sample logs," admitted as ex­ hibits in this proceeding, which were prepared by extracting from the station's program logs the in­ formation with respect to all of the station's nonentertainment programming (including date, day of the week, title of the program, source, start time, and duration) during the sample weeks. Based on the programming identified in the sample logs, the School System prepared a narrative description of its nonentertainment programming, including issue­ responsive public affairs programming, presented in each school year since the start of the license re­ newal period. The School System also submitted its annual and quarterly Issues/Programs lists for the same period. · FCC 88R-70 Federal Communications Commission Record 4 FCC Red No. 2 I.D., at para 66 (citations omitted). As previously dis· cussed, many of these programs were the product of SPS's systematic ascertainment effort. The ALJ examined these extensive programming exhibits. identifed the correlation between ascertained needs and SPS"s Issues/Programs lists, id., and examined the logging practices of KNHC-FM to assure the accuracy of SPS's labeling procedure. We have, again, reviewed those exhibits and affirm the ALJ's find­ ing that, over the license term, KNHC-FM broadcast a very substantial amount of programming specifically at· tuned to the pulse of the local community. Straw does not contend that KNHC-FM flatly ignored any obvious local need (except insofar as Straw's fixation on "alternative" programming). See, e.g., Stone v. FCC, 466 F.2d 316, 328 (D.C. Cir. 1972); Alabama Educational Television Commis­ sion, supra note 33, 50 FCC 2d at 470-473. As to Straw's assault on SPS's failure to provide a quantitative analysis of its nonentertainment programming, we reiterate the point made in Pillar of Fire, supra, that both the Commis­ sion and the courts have evinced a "disinclination ... to gauge, in any controlling degree, a station's responsiveness by a quantitative standard." 99 FCC 2d at 1261. And, that any such "statistical breakdown is merely one prima facie indicator of station performance; a quick starting point, but no more than that." Id. (quoting Intercontinental Ra­ dio, supra, 98 FCC 2d at 630). We next observed in Pillar of Fire that, "[t]o the extent that a quantitative index has been employed by the Commission," it has focused on two criteria: (1) a comparison with (then extant) "renewal guidelines", and (2) a licensee's "promise versus perfor­ mance." 99 FCC 2d at 1262. Straw has not hinted at an SPS deficiency under either criteria. As to the more im­ portant qualitative indicia, Straw's condemnation rests, as all here concerned have made quite plain, on its remon­ strance that SPS responded only to the same needs and problems that other local broadcasters had ascertained, and not to other "cultural and informational interests ... given minimal attention by commercial broadcasters." 50 We have addressed this latter charge above, and stand on that disposition. (2) Reputation in the Community 40. In evaluating the broadcast record of an incumbent licensee, one factor regularly considered is the station's reputation in the community which it serves. E.g., Pillar of Fire, supra, where we repeated: Although the Commission must assess a renewal applicant's record, our Intercontinental Radio deci· sion found that the agency and the court have placed emphasis on the response of the licensee's consumers, its audience. See id., [98 FCC 2d at 633). Inter alia, we there cited (then) Judge Burger's in­ vocation of " our national tradition that public re­ sponse is the most reliable test of ideas and performance in broadcasting as in most areas of life. " Office of Communication of the United Church of Christ v. FCC, 359 F.2d 994, 1003 (D.C. Cir. 1966) (emphasis added); see also Central Florida Enter­ prises, supra, 683 F.2d at 508; Victor Broadcasting, supra, 722 F.2d at 762. Id., 99 FCC 2d at 1275 (footnote omitted). Pillar then considered the testimony of 7 public officials and 24 other members of the general public, as well as an evidentiary sample from some 1593 letters from the general public received by the licensee during the license term. Id., at 1275-1276. See also Video 44, 3 FCC Red at 3591 (83 viewer letters, including 21 complaints, considered); Intercontinental Radio, Inc., 98 FCC 2d at 622-625, 633, 638, & 621 n.37 (consideration given to supportive testi­ mony of 50 witnesses, 14 unsolicited commendatory let· ters, several listener complaints, and adverse community witness testimony); Kaye - Smith Enterprises, 98 FCC 2d at 684 (testimonials from various community leaders). 41. Straw asserts that SPS "provided virtually no evi­ dence from community leaders that the station had con­ tributed to the needs and interests of Scattle." 51 Although we have never held that a licensee's reputation in the community can only be vouchsafed by the testament of community leaders, particularly since ordinary listeners have standing to make their views known to the FCC, Office of Communication of the United Church of Christ, supra, Straw is correct that most, if not all, of the witness testimony described in the l.D. in support of KNHC-FM's record came from (1) SPS personnel involved in the school's vocational training activities (see id., paras. 54-60), (2) Nathan Hale High School graduates who had later obtained jobs in broadcasting (id., paras. 64-65), and (3) producers whose programs had been aired by KNHC­ FM or parties for whom the station had broadcast Public Service Announcements (id., paras. 129-133). For reasons more fully explained supra, paras. 20-24, we do not find relevant to the Commission's renewal oversight the school's vocational training activities, simpliciter. The questions of whether SPS ran a meritorious vocational training program, or even whether such a specialized activity is a productive use of scarce local educational resources (see I.D., paras. 138-154), are beyond the ken of this civil licensing agency, and more appropriate for as· sessment by superintending educational authorities. Based upon our reading of the Commission's public policy state­ ments on noncommercial broadcasting, a noncommercial station's license renewal would not be assured were it unanimously agreed that a licensee ran a superlative voca­ tional training program, but failed abjectly in its regula­ tory duty to service the needs of the Seattle listening community, just as we would not downgrade a station at renewal time for a reputedly "poor" vocational training program, but where its program service to the community was otherwise meritorious. It is not gainsaid that voca­ tional training and job placement by SPS is a salutary social byproduct of its operation of KNHC-FM, but this Commission's official federal charter encompasses neither educational curricula nor full employment. Consequently, we give scant weight to the witnesses in categories (1) and (2), above, in measuring this station's reputation in the Seattle listening community. The testimony of KNHC­ FM's program producers (category (3) above) is patently self-serving, and likewise entitled to little weight, under the specific heading of community reputation. But see infra para. 51. That appears to leave the comments of Eddie Rye, I.D. para. 131, and Garcia Massingale, id., para. 133, both of whom testified that KNHC-TV provided useful information to the community, as well as a forum for the presentation of their Public Service Announce­ ments. 42. Compared to many other renewal applications we have scrutinized, the SPS showing of its reputation in the listening community was not very strong, in large part because SPS chose to rely heavily on testimony relating to 4 FCC Red No. 2 Federal Communications Commission Record FCC 88R-70 its vocational training. On the other hand, Straw concedes that the record here contains no complaints from the listening public (or local community leaders, for that matter),52 a sounding read in prior comparative renewal cases. E.g., Central Florida Enterprises, 683 F.2d at 508. In sum, however, we essentially agree with Straw that the record here does not prove, by substantial evidence, that KNHC-FM enjoys a reputation in the Seattle area for superior public interest programming to the local com­ munity. We do not speculate on just what that actual reputation is; we simply say "not proven." (3) Compliance with FCC Rules and Policies 43. In contemplating whether an incumbent licensee is entitled to a renewal expectancy, the Commission rou­ tinely checks to determine whether there has been full compliance with Commission rules and regulations. See, e.g., Central Florida Enterprises, 683 F.2d at 509 (violation of main studio rule factored in); see also Intercontinental Radio, Inc., supra, 98 FCC 2d at 646, 647 (record "unblemished" by violations); Tele - Broadcasters of Cali­ fornia, Inc., supra, 58 RR 2d at 233 (compliance record "pristine)". 53 The instant record reveals no violations on the part of SPS; and apart from Straw's pandemic charge that KNHC-FM has failed utterly in its bedrock statutory duty to be "alternative", we are not made aware of any slight delict. C. Summary and Conclusions 44. The ALJ, as we have said, awarded SPS a strong renewal expectancy for its "outstanding performance dur­ ing the license term." The Mass Media Bureau would concur based upon KNHC-FM's "substantial program­ ming performance," I.D., para. 271, but the ALJ's view was "that the proper test for measuring the School Sys­ tem's past performance during the license period ... is the same as specified in the designation Order for evaluating the two applicants, namely, the standard noncommercial comparative issue." Id., at 277 (empahsis added). On that predicate, the ALJ factored into his renewal expectancy award his personal view of the merit of SPS's vocational training program. See id., paras. 45-50, 52-65. We, con­ versely, agree with the Mass Media Bureau and believe that SPS's renewal expectancy, if any, is to stem primarily from its program response to the Seattle community's ascertained needs, problems and interests, and we shall not attempt to evaluate, credit, or discredit, the SPS voca­ tional training program. Cf. Way of the Cross, supra, 101 FCC 2d at 1375 n.10. Further, to the extent that the ALJ considered any post-license term activities in reaching his conclusion as to the SPS renewal expectancy, see I.D., paras. 167-206, we shall disregard such evidence in our own review. See supra note 33 (citing, e.g., United Broad­ casting Company, Inc., 94 FCC 2d at 948-949). 45. Our own deliberations over whether SPS has earned a renewal expectancy, and the strength of any such re­ newal expectancy to be ultimately weighed against the results of our comparative issue (compare, e.g., Video 44, supra, 3 FCC Red at 3591-3592 (moderate renewal expec­ tancy weighed against weak comparative challenger) with Intercontinental Radio, Inc., 98 FCC 2d at 644-647 (mod­ erate renewal expectancy weighed against substantial com­ parative challengers) with Tele-Broadcasters of California, Inc., 58 RR 2d at 233-234 (strong renewal expectancy weighed against weak comparative challenger)), concen­ trated upon the same record factors as consulted in the aforecited comparative renewal cases. In so doing, we were acutely aware of the court's caveat in Central Florida Enterprises that the standards by which we measure the strength of any renewal expectancy may not be "'opaque to judicial review,' 'wholly unintelligible,' or based purely on 'administrative "feel"."' 683 F.2d at 508 (footnotes omitted). We also acknowledge that the Commission itself has recently conceded, in Formulation of Policies And Rules Relating to Broadcast Renewal Applicants, supra note 53, that "a program-based renewal expectancy, such as the present method of defining 'meritorious service,' has prac­ tical problems of administration." 3 FCC Red at 5193 (-5194). 46. With these compunctions firmly in mind, we shall nevertheless compare SPS's license term performance against the several criteria that have evolved out of Central Florida Enterprises, and thereafter applied in every com­ parative renewal case this Board has engaged since that decision, to wit: Criterion I. Criterion 2. Criterion 3. Criterion 4. Criterion 5. The licensee's efforts to a as­ certain the needs, problems and interests of its community; The licensee's programmatic re­ sponse to those ascertained needs; The licensee's reputation in the community for serving the needs, problems and interests of the community; The licensee's record of compli­ ance with the Communications Act