Appendix — United Broadcasting Co. v. Federal Communications Commission

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NOV 4 1977

[_ MICHAEL RODAK, JR., CLERK

IN THE

Supreme Comt of the United States

OcroserR TERM, 1977

No? Z-651 |

Untrep Broapcastina Company, Inc., Petitioner,

Vv.

FEepERAL COMMUNICATIONS COMMISSION, e¢ al.,

Respondents

Harry M. PLorkin

Tuomas SCHATTENFIELD

Davin TILLOTSON

Harry F.. Cote ,

1815 H Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

November, 1977

Pazes or Brnon 8. Apams Puntina, Inc., Wasuineron, D.C.

TABLE OF CONTENTS

Page

Appenpix A

Opinion of the United States Court of Appeals for the

District of Columbia Circuit, July 8, 1977 ......

Appenpix B

Decision of the Federal Communications Commission,

adopted September 9, 1975 ................005.

Appenpix C

Memorandum Opinion and Order of the Federal Com-

munications Commission denying petition of

United Broadcasting Company, Inc. for reconsid-

eration and rehearing, adopted May 19, 1976 ....

Appenpbix D

Initial Decision of Administrative Law Judge Forrest

L. McClenning, issued February 9, 1973 ........

Appenpix E

Judgment of the United States Court of Appeals for

the District of Columbia Circuit, July 8, 1977 ....

Appenpix F

Order of the United States Court of Appeals for the

District of Columbia Cir uit denying petition of

United Broadcasting Company, Inc. for rehearing,

BPP PTT errr TT TTT TT TTT Tree

Appenpix G

Order of the United States Court of Appeals for the

District of Columbia Circuit denying suggestion

of United Broadcasting Company, Inc. for rehear-

Be GD WEED oc cccccincenccescevesévecscccscees

it ee

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 76-1570

Unrrep Broapcastine Company, Inc., Appellant

Fepgera, Communications Commission, Appellee

Wasuineton Communtty Broapcastine Co., Intervenor

Appeal from an Order of the

Federal Communications Commission

Argued June 14, 1977

Decided July 8, 1977

Peter Tannenwald for appellant. E. Stratford Smith,

Vincent A. Pepper, David C. Jatlow, Thomas Schattenfield

and David Tillotson were on the brief, for appellant. Harry

M. Plotkin, Theodore D. Frank and Eric L. Bernthal also

entered appearances for appellant.

C. Grey Pash, Jr., Counsel, Federal Communications

Commission, with whom Werner K. Hartenberger, General

Counsel, and Daniel M. Armstrong, Associate General

Counsel, Federal Communications Commission, were on

the brief, for appellee. Sheldon M. Guttmann, Counsel, Fed-

eral Communications Commission, also entered an appear-

ance for appellee.

Monroe Oppenheimer for intervenor.

Before: Bazeton, Chief Judge, and Rosinson, Circuit

Judge, and Ronatp N. Davigs,* United States

Sentor District Judge for the District of North

Dakota.

Opinion Per Curiam.

Per Curiam: The only substantial issue is whether the

Commission’s decision to refuse renewal to petitioner was

a proper one. The Commission’s Order, United Television

Co., Inc., 55 F.C.C.2d 416, 422, 423, 425 (1975), states that

each of several independent reasons called for appellant’s

disqualification, including breach of the Commission’s rules

of technical operation. In our view, the long history of per-

sistent violations of those rules was a sufficient reason for

disqualification. The Commission’s decision is therefore af-

firmed on the basis of its discussion of this issue, and we

reach no other question tendered by this appeal.

. ' —_

-\--_3

* Sitting by designation pursuant to Title 28, U.S.C. § 294(d).

ee ee ee ed

APPENDIX B

FCC 75-1018

BEFORE THE

FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D.c. 20554

In Re Applications of

Unrrep Tetevision Co., Inc. (WFAN-TV)'

Docket No. 18559

File No. BROT-585

Wasuinoton, D.C.

For Renewal of License

Unrrep Texevision Co., Inc. (WFAN-TV)'

Docket No. 18561

File No. BPCT-3917

Wasuinotoyn, D.C

For Construction Permit

Untrep Broapcastine Co., Inc., (WOOK),

Docket No. 18562

File No. BR-1104

Wasuinoton, D.C.

For Renewal of License

Wasnineton Community Broapcastine Co.,

Docket No. 18563

File No. BP-17416

Wasuinerton, D.C.

For Construction Permit for New

Standard Broadcast Station

* The applications of United Television Co., Inc. for renewal and

modification of its license for WFAN-TV, Washington, D.C., were

dismissed upon revocation of the license by the Commission, 46

FCC 2d 698, released April 26, 1974, affirmed, C.A.D.C., Case Nos.

73-1963, et al., decided January 20, 1975, 514 F. 2d 279, rehearing

denied, May 20, 1975. On June 19, 1975, United filed a petition for

rehearing before the Commission, which will be considered in a

subsequent document.

APPEARANCES

Paul Dobin, Roy R. Russo, Lawrence N. Cohn, and Roy

F. Perkins, Jr. (Cohn & Marks) and Vincent A. Pepper and

Seymour M. Chase (Smith and Pepper) on behalf of United

Television Company, Inc. and United Broadcasting Com-

pany, Inc.; Monroe Oppenheimer on behalf of Washington

Community Broadcasting Co.; Ramsey L. Woodworth

(Hedrick & Lane) on behalf of witnesses Donald W. Parker

and Peter B. Lassotovitch; and William A. Kehoe, Jr.,

Thomas A. Fitzpatrick, Joseph Stirmer, Michael Faber,

and P. W. Valicenti on behalf of the Chief, Broadcast

Bureau, Federal Communications Commission.

DECISION

(Adopted September 9, 1975; Released September 12, 1975)

By Commissioner BENJAMIN L. Hooks ror THE COMMISSION :

1. This proceeding involves, inter alia, mutually exclusive

applications filed July 1, 1966, by United Broadcasting Com-

pany, Ine. (United), for renewal of its license for standard

broadcast station WOOK, in Washington, D.C., and August

31, 1966, by Washington Community Broadcasting Co.

(Community )for a construction permit for a new standard

broadcast station in Washington. In an Initial Decision,

FCC 73D-7, released February 22, 1973, Administrative

Law Judge Forest S. MeClenning found both applicants

qualified to be Commission licensees, but in light of United’s

history of violations of the Commission’s technical rules

he concluded that United lacked the ‘‘requisite comparative

qualifications’? to remain a Commission licensee, and he

recommended the grant of Community’s application. Now

before the Commission for consideration are exceptions

and a supporting brief, both filed August 5, 1974, by United;

limited exceptions and a supporting brief, both filed July

16, 1974, by Community; and exceptions and a supporting

brief, both filed July 17, 1974 by the Chief, Broadcast

we eS anh eet whe

Bureau (Bureau); together with reply pleadings filed

August 15, 1974, by United, August 16, 1974, by Community,

and August 19, 1974, by the Bureau. Oral argument before

the Commission, en banc, was held on January 7, 1975.’

2. Based on our review of the record, the Judge’s find-

ings of fact and conclusions reflect the evidence of record

and are affirmed except as they may be modified by this

decision and by our rulings on exceptions as contained in

the attached appendix. We find, however, that the Judge

erred in concluding that United was entitled to comparative

consideration with Community’s proposal in this proceed-

ing.* Specifically, we find that he failed to give proper

consideration to the significance of his findings of fact

concerning the following issues: whether station WOOK

broadcast announcements which advertised articles such as

‘conquer roots’’, ‘‘money-drawing roots’’, and ‘‘spiritual

? On December 24, 1974, Community filed a petition for leave to

amend and an amendment to its financial showing which raises

questions concerning the Judge’s conclusion that it is financially

qualified to be a licensee. On December 31, 1974, United filed a peti-

tion for remand predicated on Community’s amendment. The Bu-

reau filed comments on United’s petition on January 10, 1975, and

United filed a reply on January 23, 1975. During the January 7,

1975, oral argument, counsel for Community requested an exten-

sion of time in which to file an additional amendment to correct

the deficiencies in its financial showing. On March 7, 1975, Com-

munity filed a petition to amend and an amendment showing a new

loan commitment. The Bureau filed comments on the petition on

March 18, 1975. United filed a response on March 20, 1975, and

Community filed a motion for leave to file a reply and a reply to

United’s response on March 28, 1975.

Also under consideration are a petition for leave to amend and

an amendment filed April 9, 1975, by Community, showing new

business interests for Community stockholder, Mr. Tyler Abell. On

April 18, 1975, United filed an opposition to this petition and Com-

munity filed a reply on May 9, 1975.

*In light of the alleged deficiencies in Community’s amended

financial showing, the Judge’s further conclusion that Community

is qualified to be a Commission licensee cannot be affirmed at this

time. See paragraphs 17-19, infra.

baths’’, or which offered to give three-digit scripture refer-

ences to be used for ‘‘financial blessings’’; whether WOOK

took reasonable measures to protect its listening public

from false, misleading, or deceptive advertising over its

facilities; whether WOOK broadcast announcements or

information concerning a lottery in conflict with Section

1304 of Title 18 of the United States Code, and Section

73.122 of the Commission’s Rules; and whether WOOK’s

operation departed from Commission Rules and Regula-

tions and the terms of its license authorization. The Judge’s

findings with respect to these matters mandate a conclusion

that United engaged in misconduct requiring the denial of

its renewal application for WOOK.

BROADCAST OF LOTTERY INFORMATION

3. The record clearly establishes that WOOK’s facilities

were used by various ministers to broadcast programs

offering three-digit seripture citations in return for mone-

tary donations. The broadcasting ministers claimed that

the seripture citations had been successful in enabling their

listeners to receive financial blessings (win at the numbers

game)* and that they would enable listeners, who sent

them monetary donations, to receive similar blessings in

the future.’ Similar repres ntations were made on other

*A member of the Washington Police Department testified that

the numbers or policy game is a form of illegal lottery prevalent

in WOOK’s service area in which people usually place small bets

on the order of certain numbers, determined from the mutual prices

paid on particular races at a specified track. A complete descrip-

tion of the operation of the numbers game in the WOOK service

area is set forth in paras. 11-19 of the Initial Decision, and at

pages 212-231 of the Hearing Transcript.

° The ministers broadcast alleged testimonials from listeners re-

ferring to three-digit citations which coincided with winning num-

bers. See the February 23, 1969, broadcast by Queen Mother Ruby

Etta Allen (Communty Ex. 14) ; February 16, and March 23, 1969,

Ee © oe & OO et

‘

programs which did not broadcast three-digit citations but

which used language associated with the numbers game,

such as promising a ‘‘straight hit’’ ov ‘‘straight bless-

ing.’’* United conceded (Tr. 6326) that the language used

in all of these broadcasts referred to the numbers games.

4. The Initial Decision concluded that United’s broad-

casts were not in conflict with Title 18 U.S.C., Section

1304,’ because they did not refer to a specific lottery and

because United was unaware of the references to the num-

bers game, citing City of Jacksonville, 21 FCC 334, 410

(1956). However, in spite of the fact that there are different

‘‘backers’’ who act as individual ‘‘banks’’ for the numbers

game, the player often does not know or care who his

backer is; there is only one winning number on any given

day; and the backers act in concert in determining the

winning number and payoffs. The numbers game is thus

in fact one consolidated lottery backed by different people

working in concert (I.D. Para. 17, Tr. 212-231).

broadcasts by Rerevend Williams (Community Exs. 15 and 16) ;

March 23, 1969, broadcast by Dr. Pryor (Community Ex. 19) ;

June 1, 1969, broadcast by Father Franklin (Community Ex. 20) ;

June 8, 1969, broadcast by Reverend Fleming (Community Ex.

25); and June 1 and 15, 1969, broadcasts by Reverend Dowell

(Community Exs. 28A and 29).

° A ‘straight hit’’ is a slang term for winning the numbers game

with a three-digit number (Tr. 216-217). See the March 30, 1969,

broadcast of Rev. Butler (Community Ex. 32) and January 12

and March 16, 1969, broadcasts by Rev. Jefferson (Community Exs.

38 and 39).

"18 U.S.C. 1304 provides in pertinent part: Whoever broad-

casts... or... knowingly permits the broadcasting of, any adver-

tisement of or information concerning any lottery, gift enterprise,

or similar scheme, offering prizes dependent in whole or in part

upon lot or chance, or any list of the prizes drawn or awarded by

means of any such lottery, gift enterprise, or scheme, whether said

list contains any part or all of such prizes, shall be fined not more

than $1,000 or imprisoned not more than one year, or both.

5. The Initial Decision’s reliance on City of Jacksonville,

supra, was also improper. There is no requirement in

Section 1304 that licensees have prior knowledge of the

broadcasts and in subsequent decisions we have departed

from the holding of City of Jacksonville. In Ohio Quests,

Inc., 8 FCC 2d 859 (1967), we found a licensee violated

Section 1304 where the wrongdoer was attributed to an

inexperienced operator who made improper broadcasts

without the knowledge or consent of the licensee. In Laury

Associates, Inc., 27 FCC 2d 870 (1971), the violations were

based on a determination that the licensee intended to do

the acts complained of and we stated that it was not

necessary to show that he had knowledge that the acts

were in violation of law. In University of Florida, 40 FCC

2d 188 (1973), we held that a licensee, who in good faith

relied on information supplied by an advertising agency

and broadcast information concerning a lottery, was ac-

countable for the violations of Section 1304. Thus, United

broadcast information concerning a lottery and it would

be responsible for the violations of Section 1304 even if it

could be shown that they had occurred without the knowl-

edge of its principals. Moreover, even the claim that the

principles were unaware of the lottery information ‘‘re-

flects a lack of responsible supervision over program con-

tent on the part of the licensee.’’ City of Jacksonville, 21

FCC at 410. See paras., 7-13, infra.

CLAIM OF RELIGIOUS PROGRAMMING

6. To the extent that its ‘‘broadcasts encouraged par-

ticipation in illegal activity . . . United urges no consti-

tutional inhibition against the imposition of sanctions.”’

Rather, citing United States v. Ballard, 322 U.S. (1944),

United contends that the Commission ‘‘may not inquire into

the truth or falsity of what is preached as religion’’ and

that it is not ‘‘responsible for whatever may be deemed to

be false, deceptive or misleading’’ in religious broadcasts."

We agree with United that the truth of a sincerely held

religious belief may not be questioned. There are, however,

limits on the activities which may be carried on in the

name of religion, and it is well settled that conduct which

is in violation of social duties or law may be prohibited.

Reynolds v. United States, 98 U.S. 145 (1879) (prohibiting

polygamy) ; Jacobsen v. Massachusetts, 197 U.S. 11 (1905)

(requiring smallpox vaccinations); and Cantwell v. Con-

necticut, 310 U.S. 296 (1940) (approving licensing of per-

sons engaged in solicitations for religious purposes).

Moreover, while the Commission may not abridge the free-

dom to believe, it may question whether particular expres-

sions of belief are sincerely held, Gillette v. U.S., 401 U.S.

437 (1971),° and the good faith of the broadcasting minis-

ters may be considered in order to protect radio listeners

from fraud. See United States v. Ballard, supra.” In view

of the facts that numbers references are not part of any

religious creed, that the representations of the ministers

concerning financial blessings defy belief," and that United

* United’s brief in support of exceptions, p. 15.

*In Gillette the court questioned the sincerity of the religious

beliefs of persons claiming conscientious objector status from the

Selective Service Draft.

*° See also Founding Church of Scientology vs. United States,

409 F. 2d 146 (D.C. Cir. 1969), where the court said that: ‘‘Not

every enterprise cloaking itself in the name of religion can claim

the constitutional protection conferred by that status. It might be

possible to show that self-proclaimed religion was merely a com-

mercial enterprise, without the underlying theories of man’s na-

ture of his place in the Universe which characterize recognized

religion. Though litigation of the question whether a given group

or set of beliefs is or is not religious is a delicate business, our

legal system sometimes requires it so that secular enterprises may

not unjustly enjoy the immunities granted to the sacred.’’

™* Several of the broadcasting ministers promised their listeners

that they could bring repeated ‘‘money blessings’’ and ‘‘straight

hits’’ (1.D. paras. 22, 28, 29 and 30). The Judge specifically found

failed to show that the ministers had enabled their listeners

to receive financial blessings or that the ministers honestly

believed they could help their listeners get financial rewards

by playing the numbers which they furnished,” we conclude

that our action here does not violate the constitutional

restraints of the First Amendment.”

LICENSEE RESPONSIBILITY

7. We find little merit in United’s further arguments that

it was acting in good faith, victimized by clever subterfuges

of the broadcasting ministers, and unaware of the signifi-

cance or meaning of the broadcasts. While United claims it

did not know or have notice that the ministers using its

facilities were broadcasting numbers references until June

23, 1969, when Community filed a petition to enlarge issues,

the record establishes that United had notice of various

broadcasts which should have alerted it to the possibility

of wrongdoing and prompted it to conduct an investigation.

Such notice was given to United as early as January 3,

1967, when Coiamunity, in a petition to deny United’s

application for renewal of license, charged WOOK with

broadcasting spurious religious programs and quoted a

broadcast by Bishop Bonner over WOOK’s facilities as

saying, inter alia: ‘‘Every day you try to win and you don’t

the mathematical probability of selecting a winning number is

1/1000 and the probability of selecting a winning number twice

in succession is 1/1 million (I.D. para. 19).

12 Mr. Von Blasingame testified that the ministers denied broad-

casting any matter which referred to the numbers game (Tr. 446,

491, 800 and 803).

18 We also note that United's own practices were inconsistent

with any claim of constitutional inhibition. United prohibited the

ministers from broadcasting three-digit scripture citations after

Community filed is [sic] June 23, 1969, petition to enlarge issues re-

questing an issue concerning the broadcasting of lottery or num-

bers information.

win. You put a little money here and you put a little money

there and you don’t win.’’ Bishop Bonner asserted that he

would enable his listeners to ‘‘be the most successful per-

son(s] in the game.’’ United’s response was to argue

that Bishop Bonner and other ministers making similar

promises were engaged in bona fide religious broadcasts.”

It did not halt the improper use of its facilities or institute

any changes in its broadcast policy at that time (Tr. 926).

Richard Eaton, United’s principal, did discuss the allega-

tions with various employees, including Mr. Von Blasin-

game.” Mr. Eaton, however, deferred to Mr. Von Blasin-

game’s judgment with respect tc what religious programs

would be appropriate (Tr. 651-657), and United failed to

implement any effective control over its programming.

8. Subsequently, in 1968, Pierre Eaton, the son of Rich-

ard Eaton, who was manager of Station WSID, United’s

Baltimore affiliate, formulated a policy prohibiting minis-

ters from broadcasting three-digit scripture citations over

WSID. Pierre Eaton wrote a memorandum implementing

that policy which he sent to WOOK. The memorandum,”

inter alia, specifically prohibited broadcasting of :

(4) Gift, prize or award by contest, lottery or similar

arrangement involving chance and a winner or winners.

(5) Chapter numbers, paragraph numbers or song

numbers except in connection with a recitation of the

chapter, paragraph or a verse of the song in full.

* Petition to deny at 3-5.

*® Opposition to petition to deny at 1-5.

** Otto Von Blasingame is the son of a black minister who is

familiar with the black community and black religious needs and

whose duties at WOOK included responsibility for scheduling and

selling time for religious programs.

** Community Ex. 45.

10b

Although Mr. Von Blasingame listened to the tapes of every

religious program broadcast by WOOK (Tr. 411), and was

therefore familiar with the use of scripture citations, he

decided that compliance with part (5) of the Pierre Eaton

memorandum should not be required, because ‘‘the recita-

tion of chapter numbers, et cetera, were as much a part of

religious services as singing of a hymn .. .’’ (Tr. 936).

Thus, in effect, WOOK ignored the Pierre Eaton memo,

and it permitted the improper use of its facilities to con-

tinue.

9. The broadcasting ministers consistently made highly

suspicious promises of financial blessings, and it was read-

ily apparent from the broadcasts themselves that inquiry

was required. Thus, during a May 18, 1969, broadcast,

Reverend Dowell read an alleged testimonial which stated:

The first time I came to see you, I was blessed for

$135 for a quarter, and tke second time I came I re-

ceived $540 for a $1.00 investment. And the last time

I was there I really hit the jackpot because I placed

$10 where you told me to and the Lord blessed me with

over $5,000. (Community Ex. 28 at 9).

The ratio used for the payoffs referred to in the alleged

testimonial was the exact payoff for a winning number.

Such promises were repeated often and Mr. Von Blasin-

game was aware of them because he listened to tapes of all

the religious broadcasts. See paragraph 8, supra. While

Mr. Von Blasingame admitted that he could not conceive

of any investment which would pay such a return and that

he did not understand the terminology used, he made no

inquiry in order to obtain an understanding of the broad-

easts (Tr. 437, 442, 501-508). From the very nature of the

broadcasts, it is apparent that, even assuming United was

unaware of the specifics of the numbers game, if Mr. Von

Blasingame had acted with reasonable care, United could

have ascertained the exact nature of the wrongdoing and

avoided subsequent improper broadcasts.

11b

10. Moreover, as licensee of station WOOK, United had

responsibility for, and an obligation to understand what

was being broadcast over its facilities. In this regard we

have held licensees responsible for the content of foreign

language broadcasts which they did not understand, Trans

America Broadcasting Corp., 20 FCC 2d 469 (Rev. Bd.

1969) and 33 FCC 2d 596 (1972), and for the meaning of

the terminology used in song lyrics, Licensee Responsibility

to Review Records Before Their Broadcast, 28 FCC 2d 409

(1971), clarified, 31 FCC 2d 377 (1971), aff’d sub nom.,

Yale Broadcasting Co. v. FCC, 478 F. 2d 954 (App. D.C.

1973) cert. den., 94 S. Ct. 211. Here, r less should be ex-

pected of United and it canuct escape ue consequences of

its own claimed naivete. Mr. Eaton had notice of the im-

proper use of WOOK ’’s facilities from Community’s plead-

ings and Mr. Von Blasingame heard tapes of the spurious

programs. Under these circumstances United must be held

responsible for the continued improper use of its facilities.

11. It was not until after the June 23, 1969, petition to

enlarge issues filed by Community, that United finally pro-

hibited further broadcasts of three-digit scripture citations.

Even then, United failed to remove the offending ministers

from the air, and its belated efforts were ineffective in

avoiding continued broadcasts containing promises of finan-

cial gain or encouraging participation in the numbers game.

The record contains evidence of two subsequent broadcasts

which used WOOK’s facilities for solicitation of funds in

return for promises of future financial gain. In both of

these instances, three-digit scripture citations were not used

in the broadcasts but were mailed to the listeners. United

contends that, because the ministers did not actually broad-

cast the three-digit citations, it was the victim of new and

clever subterfuges and it asserts that it should not be held

responsible for what the ministers using its facilities mailed

to their listeners. United having notice of the previous

improper use of its facilities, had an affirmative duty to

prevent further improprieties. There is no question that the

12b

ministers involved previously used WOOK’s facilities to

offer tips on the numbers game and that United should have

been aware of this practice before Community filed its

June 23, 1969, petition. The so called subterfuges broadcast

by ministers involved promises to convey messages which,

inter alia, would ‘‘build up what you make [sic] in your

pocketbook . . . put food in your ice box . . . and money

deep down into your pocket’’; and an offering of an oppor-

tunity to ‘‘reap one of the greatest harvests of his rich

blessings. . . .’”’** There was nothing new in these alleged

subterfuges which were similar to broadcasts previously

carried over WOOK that also contained references to the

number games, and promises of financial rewards, but did

not broadcast three-digit scripture citations.** We conclude,

therefore, that there is no merit in United’s claim of

subterfuge and that, having been alerted to the earlier im-

proprieties, United’s subsequent conduct, allowing contin-

ued improper use of its facilities, displayed the ‘‘callous

disregard’’ for its listening audience found by the Judge.”

12. United also argues that it should not be subjected to

any sanctions on the basis of the improper broadcasts be-

cause it had taken reasonable precautions to prevent the

wrongdoing. Specifically, it notes that Mr. Eaton hired

Mr. Von Blasingame, the son of a black minister and a

person familiar with the black community, to oversee

WOOK’s religious programs. Mr. Richard Eaton, himself,

was active in WOOK’s affairs spending 3 days a week at

the station, consulting with Mr. Von Blasingame and other

station officials about WOOK’s programming. Such pre-

cautions, however, are only meaningful to the extent that

‘* Community Ex. 30.

** See September 6, 1966, broadcast by Rev. Williford (Com-

munity Ex. 6), and January 12, May 4 and 25, and June 8, 1969,

broadcasts by Rev. Cooper (Community Exs. 33, 35, 36 and 37).

2° 1.D. para. 213.

13b

Mr. Eaton and Mr. Von Blasingame properly executed their

responsibilities for supervising WOOK’s operations. As

noted, Mr. Von Blasingame heard the spurious broadcasts,

did not understand them, and made no inquiry. When we

consider the frequency and nature of the questionable

broadcasts, the information contained in pleadings filed by

Community, and the memo by Pierre Eaton establishing a

policy designed to prevent identical improprieties at an-

other United station, there was adequate opportunity for

Richard Eaton, who was active in WOOK’s affairs, to dis-

cern and eliminate the spurious broadcasts chronicled in

the record of this proceeding. Under these circumstances,

we can attach no credence to United’s assertions of due

care and we conclude that United and Richard Eaton were

remiss in their supervision over WOOK’s religious broad-

casts.

13. We thus find, not only that United violated Section

1304, but also that its constitutional argument and claim

of due care are without merit. In light of the repetitive

nature of the violations of Section 1304 over a prolonged

period of time, we conclude that the record mandates a

denial of United’s renewal application. Moreover, apart

from any violation of Section 1304, the broadcasts, includ-

ing testimonials cf alleged predictions and promises of

future ‘‘hits’’ (winning numbers), see notes 5 and 6, supra,

are clearly in furtherance of numbers game activities. Since

the numbers game is illegal in the District of Columbia,

see Title 22 D.C. Code, Section 1501, et seq., such broad-

casts show an extended pattern of conduct clearly adverse

to the public interest which constitutes an independent

ground for denial of United’s application for renewal of

its license for station WOOK. See Report and Order

Amending the Commission’s Rules to Regulate the Broad-

cast of Horseracing Information, enunciating our policy

against use of broadcast facilities in aid of illegal gambling

activities, 36 FCC 1571, at 1572-73 (1964).

14b

FALSE AND MISLEADING ADVERTISEMENTS

14. WOOK ’s religious programs also offered ‘‘roots,’’

‘‘incense’’ and ‘‘spiritual baths’’ as a means of attaining

financial gain or solving personal problems.” We affirm

the finding of the Administrative Law Judge that offerings

of ‘‘roots,’’ ‘‘incense’’ and ‘‘spiritual baths’’ constituted

false advertising. While United presented expert testi-

mony that the sale of these items was not unlike the sale

of a rosary and that the articles were intended to bring

the audience of the radio ministers closer to God, the repre-

sentations which accompanied the offers of these articles,

were without religious or factual basis. For example, in

his September 5, 1966, broadcast, Bishop Bonner prom-

ised that his ‘‘special money-drawing root’’ could make

one ‘‘the most successful person in the game.’’ * We recog-

nize that it is not within the province of this Commission

to question the truth of the professed beliefs of these

ministers. We can, however, question the sincerity of those

beliefs and of their representations,* and, just as we con-

*1 E.g., see the September 5, 1966, broadcasts by Rev. Frank

Thomas (Community Ex. 5) and by Bishop Bonner (Community

Ex. 7), and a March 16, 1969, broadeast by Rev. Dowell (Com-

munity Ex. 26).

22 Publie Notice, 40 FCC 125 (1961), Licensee Responsibility

with Respect to the Broadcast of False, Misleading or Deceptive

Advertising, which was sent to all broadcast station licensees to-

gether with a copy of a Federal Trade Commission publication

** Advertising Alert.’’ The Public Notice provided, inter alia, that

the ‘‘adequacy of the measures instituted and carried out by the

licensee in the fulfillment of his responsibility’’ to protect the pub-

lic from false, misleading and deceptive advertising, will be con-

sidered in determining whether his operation is in the public in-

terest. The notice was received and read by Mr. Eaton, who asserted

that United had a policy on deceptive advertising which conformed

to the Publie Notice (Tr. 367-371).

78 Community Ex. 7.

** See para. 6, supra.

——_—— —— ae ee te - 6 ee

SE li te tL

15b

cluded that the three digit scripture citations were not

used in good faith, we conclude that there is no valid basis,

in religion or otherwise, for the claims, such as those of

Bishop Bonner, which accompanied the offers of the

‘*roots,’’ ‘‘incense’’ and ‘‘spiritual baths.’’ The represen-

tations and articles offered by the broadcasting ministers

are similar to those in Gottlieb v. Schaffer, 141 F. Supp.

7 (S.D.N.Y. 1956), where the court upheld enforcement of

a mail fraud order by the Postmaster General, and they

are subject to our consideration here. Based on this record

we find the repeated broadcast offers of ‘‘roots,’’ ‘‘baths”’

etc., together with promises of financial blessings and so-

lutions to personal problems were false and misleading,

that United continually failed to take reasonable measures

to protect its listeners from such use of its facilities, and

that this use of United’s facilities also mandates the denial

of its renewal application.

15. We further find that United failed to take proper

precautions to protect its listeners from false advertising

carried for more than a year on behalf of the Empeco

Corporation.” It is conceded that initially there was no

reason for United to question the propriety of these ads.

However, on or about September 14, 1965, United received

notice of a Federal Trade Commission investigation con-

cerning the veracity of Empeco’s ads when the Federal

Trade Commission requested transcripts of Empeco’s ad-

vertisements. In spite of the fact that United was on

notice concerning its duty to protect the public from false,

25 Empeco offered to sell furniture and home appliances at ‘‘no-

money down’’, with low weekly payments and free additional bonus

merchandise. In fact, Empeco would not sell merchandise without

a down payment or trade in, or arrange the promised low weekly

payments. In addition, Empeco overstated the value of the bonus

merchandise and did not give away other merchandise promised

‘‘to the first 10 callers.’’ Such ads were typical of the type of false

announcements carried on behalf of Empeco. See para. 78 of the

Initial Decision.

16b

misleading or deceptive advertising,” it failed to initiate

any independent inquiry concerning the propriety of the

ads.*’ It should also be noted that advertising carried for

Richard Eaton’s book, ‘‘Work Wonders from Within Your-

self’’, did not conform to guidelines established by the Fed-

eral Trade Commission for determining the regular sell-

ing price for items offered at discount. Although these

latter matters are not so serious that, standing alone, they

would warrant denial of United’s renewal application,

United’s conduct here, does not meet the high standards

which the Commission expects of its licensees and these

shortcomings reflect adversely on United’s qualifications

to be the licensee of Station WOOK. When they are con-

sidered in conjunction with United’s other derelictions,

they give added weight to our determination that its re-

newal must be denied.

VIOLATIONS OF THE COMMISSION ’S TECHNICAL RULES

16. The Judge, in reaching his determination, attributed

a ‘‘comparative disqualification’’ to United for its repeated

violations of the Commission’s technical rules. The

Judge’s findings of fact with respect to those violations

are affirmed except as modified by our rulings on the ex-

ceptions.” United’s previous history of operations of

WOOK has been replete with violations of the technical

rules. Those violations were the subject of an earlier hear-

ing, where United was assessed a $7,500 forfeiture, and

where, in reliance on representations that its future opera-

tions would be in compliance with the technical rules,

*° Mr. Eaton was aware of the Public Notice with respect to

deceptive advertising. See note 22, supra.

27 ['nited did cancel Fmneco’s advertising before the subsequent

issuance of a Federal Trade Commission complaint, but it did so

only after Empeco became 120 days in arrears on its bill to

WOOK.

**See the rulings on Bureau exceptions 13, 17-24, 26, 28-31,

and 35.

17b

United’s license was renewed, 4 FCC 2d 293. Notwith-

standing the forfeiture and its representations, the viola-

tions continued. A subsequent inspection on September 3,

1969, disclosed 19 violations of the Commission’s rules.”

Although United hired experts to oversee the operation of

WOOK and the qualifications of the experts are unques-

tioned, the first expert was not not hired until after the

designation of the previous hearing on issues concerning

alleged violations of the technical rules in 1965, and, after

the expert died in 1967, he was not replaced and responsi-

bility for overseeing WOOK’s technical operations was

left to an untrained employee until November 1970, after

the issues were enlarged in this proceeding to consider

violations of the Commission’s technical rules. Under these

circumstances we must conclude that the hiring of the ex-

perts was merely ‘‘window dressing’’ employed when

WOOK’s license was placed in jeopardy. We further find

that United’s past representations were of no value, that

no reliance can be placed on its present promises of future

compliance, and that there are no mitigating factors. Thus,

on the basis of its violations of the technical rules stand-

ing alone, we find that United’s application for renewal of

the license of Station WOOK must be denied. See Court

House Broadcasting Co., 21 FCC 2d 792 (1970) and Heart

of the Black Hills Stations, 32 FCC 2d 196 (1971).

COMMUNITY’S APPLICATION

17. The Judge found Community qualified to be a Com-

mission licensee and recommended the grant of its appli-

cation on a comparative basis. Having found that United

is not entitled to renewal of the license of station WOOK,

there is no need to consider the propriety of the Judge’s

findings on the comparative issue. With respect to Com-

munity’s basic qualifications, we find that, although the

Judge’s findings and conclusions reflected the evidence of

record at the time of the Initial Decision, Community’s

2° Tn several instances, numerous repeated violations of the same

rule were cited.

18b

bank loan commitment expired and it amended its financial

showing, thereby raising questions concerning the Judge’s

findings with respect to its own financial qualifications.”

Community has filed an additional amendment containing

a new loan commitment, dated February 27, 1975, for a

$400,000 loan from The National Bank of Washington.

United opposes the amendment arguing that Community

failed to show that it can satisfy the bank’s collateral re-

quirements and that the financial statements supporting

the loan guarantees are sufficient to meet the Bank’s re-

quirements. It also contends that the loan constitutes a

new financial proposal subjecting Community’s entire

qualifications to reexamination.

18. Although the February 27 commitment letter is ba-

sically identical to Community’s prior loan commitment, it

does require additional guarantors; as such, the letter is

a new commitment and Community must establish its abil-

ity to satisfy the terms of that commitment. The bank will

require ‘‘that the stock of the Washington Community

Broadcasting Company be pledged as collateral’’ for the

loan. Community’s amendment is presently deficient in

that it has not established the willingness of all of its share-

holders to pledge their stock as security or of the bank to

accept a pledge of less than all of its stock. United’s other

arguments concerning Community’s financial qualifica-

tions are without merit. Community has furnished the

guarantees required by the bank.” Additionally, because

* (n December 31, 1974, United filed a petition requesting that

the Commission remand Community’s application for further hear-

ings on its financial qualifications, but for the reasons set forth

herein no action on this request is required at this time.

** We recognize that in several instances Community’s guaran-

tees are executed by both a stockholder and the stockholder’s

spouse, while the supporting financial statement was executed by

only one of the spouses. However, the guarantees are in a form

specified by The National Bank of Washington and neither the

guarantees nor the commitment letter require supporting financial

statements.

—

19b

the adequacy of the amount of Community’s financial

proposal including the $400,000 loan was fully litigated and

found to be sufficient, United cannot now utilize the lapse

of Community’s loan commitment and the substitution of

a new loan commitment in the same amount, to relitigate

these questions.”

19. We also find that there is good cause for allowing

Community to further amend its application * and for de-

ferring final action on that application and on United’s

petition for remand. Community was found to be qualified,

and except for the question concerning the pledge of its

stock it would still be fully qualified to be a licensee. The

deficiencies in Community’s showing can be cured by an

additional amendment which would eliminate any need for

further hearings. Cf. Brown Broadcasting Co., Inc., 12

FCC 2d 189 (1968), and 14 FCC 2d 143 (1968). Moreover,

inasmuch as United is not qualified to be a licensee, no

prejudice will result from this action, and it will serve the

public interest by providing the most expeditious means

for instituting a new service to replace the one deleted by

United’s disqualification.

20. Accordingly, Ir Is Orperep, That the application of

United Broadcasting Company, Inc. (File No. BR-1104)

for renewal of its license for station WOOK, at Washing-

ton, D.C., Is Dentep.

21. Ir Is Furruer Orperep, That the United Broadcast-

ing Company, Inc., Is AurHorizep to continue to operate

5? United failed to take exception to the Judge’s findings that a

$400,000 loan would be sufficient and that Community is financially

qualified to be a licensee. Any objections to the adequacy of Com-

munity’s financial proposal which were not saved by the filing of

exceptions are waived under Section 1.277(a) of the Rules and are

not entitled to consideration here.

** Community's proposed amendment filed April 9, 1975, reflects

a changed address and business interest, which contrary to United’s

contentions, have no bearing on the determinations to be made in

this case.

20b

its station until 12:01 a.m. on February 28, 1976, to enable

the licensee to conclude the station’s affairs; provided,

however, that if the licensee seeks timely judicial review

of this decision, it is authorized to continue operation of

the station until thirty (30) days after the final disposition

of that appeal.

22. Ir Is FurtHer Orperep, That the petitions for leave

to amend filed December 24, 1974, March 5, 1975, and April

9, 1975, by Washington Community Broadcasting Co., ARE

GranTeD and the amendments Arg AccEPTeED.

23. Ir Is Furrner Orperep, That consideration of the

petition to remand filed December 31, 1974, by United

Broadcasting Company, Inc., Is Dererrep, and that consid-

eration of the questions raised concerning the financial

amendments filed by Washington Community Broadcast-

ing Co., Is Dererrep for 30 days from the release date of

this Decision in order to afford Washington Community

Broadcasting Co. an opportunity to file such further

amendments to its application or other information as it

may ceem appropriate.

FeperaL ComMUNICATIONS CoMMISSION,

Vincent J. Mutiins, Secretary.

21b

APPENDIX

UNITED’S EXCEPTIONS

Exception Nos. Ruling

1, 2,3,6,7,9, Denied. The exceptions are not of decisional

10,11, 12,13, significance.

14, 15, 16, 17,

* Denied. The findings excepted to are rele-

vant to issue 2.

tinenccueces Denied. The Initial Decision accurately re-

flects the evidence of record.

23, 24, 25, 26...Denied. We recognize that Richard Eaton

was active in WOOK’s affairs and de-

voted 50 percent of his time to the station.

The value of Mr. Eaton’s participation,

however, was tempered by his lack of

diligence in ascertaining or correcting the

abuses reflected in the record of this pro-

proceeding.

Se gee ee Denied. The Commission cannot attach

credibility to United’s assertions of a

good faith effort to find a comparable re-

placement for Mr. Cohn. It took over 3

years to find a replacement, and it is noted

that both Mr. Cohen and Mr. Copper-

thwait were only retained after United’s

renewal applications were designated for

hearing on issues dealing with its failure

to comply with the Commission’s techni-

cal rules.

37, 39, 41, 42...

43, 44, 45, 47,

48, 49, 51,

52, 53, 57.

22b

Denied. The requested finding is redundant.

See par. 141 of the Initial Decision.

Denied. The requested finding is redundant

and cumulative. The Judge found that Mr.

Myers relied on WOOK’s engineering

personnel and visited the control room on

a daily basis to insure that the operators

were keeping up with their duties.

Granted. Issue 1 is whether WOOK’s pro-

grams constituted ‘‘false, misleading or

deceptive advertisements.’’

Denied. While inquiry into the truthfulness

of legitimate religious expressions is pro-

hibited by the first amendment, references

to the numbers game were not shown to

be part of any religion and are not en-

titled to constitutional protections.

Denied. The requested conclusions are not

supported by the evidence of record.

Denied. The record establishes each of the

violations, and while, if considered singly,

they would not warrant the sanction im-

posed here, when considered as a whole

and in conjunction with United’s prior

violations, they become decisionally sig-

nificant.

Denied. Section 73.116(a) requires that the

logs be made available to Commission

personnel upon request.

Granted. To the extent that the violations

oecurred on only 8 days and denied in all

other respects.

Denied. The Judge’s conclusions are sup-

ported by the evidence of record.

23b

eer Denied. The evidence of violations of the

technical rules requires the denial of

United’s renewal application.

60, 61, 62, 72... Denied. In the light of the conclusions in our

Decision herein concerning United’s pro-

gramming practices, United’s record of

oVegedly meritorious programming is not

decisionally significant. Cf. KFPW

Broadcasting Co., 40 FCC 2d 126 (1973).

Wee tdcecies Denied. The record requires the denial of

United’s renewal application.

Pe xccéensdens Granted to the extent that questions exist

concerning Community’s financial quali-

fications to be a Commission licensee and

denied in all other respects.

ee Denied. The record requires the denial of

United’s renewal application. A final de-

termination on the merits of Community’s

application must be deferred pending

resolution of the questions concerning its

financial qualifications.

Exceptions oF WasHincton Community Broapcastine Co.

Exception Nos. Ruling

1, 2, 4, 5, 6,7... Denied. The exceptions are not of decisional

significance in light of our Decision herein.

2 saaakanecees Granted. None of the ministers testified. The

ministers told United their broadcasts had

notuing to do with gambling, and United

did not consider its own restrictions on the

use of three digit scripture citations to

be interfering with freedom of religion.

24b

D dceenenneees Denied. The requested finding is redundant.

The Judge concluded that the WOOK

broadcasts of numbers references were

not part of any religion and not entitled

to first amendment protections.

4 ee Granted in substance as reflected in our De-

cision herein.

10,11, 12,13, Granted to the extent that our conclusions

14, 15, have been substituted for those of the

Initial Decision and denied in all other

respects for lack of decisional significance.

De idccocuace Granted.

Exceprions OF THE Broapcast BuREAU

Exception Nos. Ruling

Vawsaniek nee Granted. The numbers game is a specific,

single lottery.

2, 3, 4,5, 7,8, Denied. The exceptions are not of decisional

11, 12, 14,15, significance in light of our decision in this

16, 34, 36,38, proceeding.

39, 49.

DP sncnsienecns Granted to the extent that the articles such

as, ‘‘Money Drawing-Incense,’’ ‘‘ Conquer

Roots,’’ ete. were not shown to provide

the results promised by the broadcasting

ministers. In all other respects, denied, as

not being of decisional significance.

TP: csesenidewe Granted. There is no proof in the record that

gambling is part of any religious belief.

25b

Granted. The Judge’s findings in pars. 98-

101 that WOOK was in fact operating

more than 5 percent overpower at various

times only on 6 days during the period of

May 1-Sept. 3, 1969, inclusive, as con-

trasted to 82 days listed in the Official No-

tice of Violation are based on an unwar-

ranted interpertation of equipment accu-

racy tolerances as defined in the FCC

rules. The record establishes that, to stay

within the 5 percent authorized power tol-

erance, the permissible daytime and night-

time antenna current readings must not

exceed 3.96 and 2.78 amperes respectively.

The WOOK antenna current meter at the

transmitter has an accuracy from +2 per-

cent to —2 percent of the full scale read-

ings as required by the rules, which is

equal to from +0.1 to —0.1 amperes. The

remote control, studio located meter,

which was actually used to log the antenna

current values, is required by the rules to

be accurate within from +2 percent to —2

percent of the antenna current readings

at the transmitter, which works out to

from +0.08 to —0.08 and from +0.05 to

—0.05 amperes respectively for the WOOK

authorized day and night operations. The

readings of the remote control antenna

meter, barring reported malfunctioning or

logging errors, were to be accepted at face

values, as was testified to by WOOK’s

consulting engineer, and the FCC in-

spector (Tr. 4911, 3052, 1617). This proce-

dure was followed by the FCC inspector

who cited WOOK for overpower opera-

tion whenever the antenna readings

26b

equalled or exceeded 2.8 and 4.0 amperes.

The Judge, however, decided that the per-

missible overpower limits of 2.78 and 3.96

amperes would have to be increased by

the respective maximum combined toler-

ances of 0.15 and 0.18 amperes of the two

meters, raising such limits to 2.93 and 4.14

amperes. While such an approach is obvi-

ously contrary to the practice of taking

at face value readings of meters of accept-

able accuracy, it is also scientifically er-

roneous, since it overlooks the possibility

that the respective meter errors would not

always be additive, and also mistakenly

assumes that both meters would simul-

taneously deviate to the full extent allow-

able under the Rules. Consequently, the

findings in pars. 98-101 of the Initial De-

cision did not fully reflect all the pertinent

considerations.

SRP «csace Granted. There is no evidence in the record

to indicate that the log entries of WOOK’s

antenna current indicating more than 10

percent under power operation were er-

roneous. The theoretical tolerances for low

power at WOOK are 3.66 amperes day-

time and 2.57 amperes nighttime. In its

reply to the Official Notice of Violation,

the licensee contended that it should not

be charged with low power violations for

antenna currents of 3.6 and 2.5 amperes

or above, because of its operators’ prac-

tice of rounding off readings to the near-

est scale division. The record does not

always bear out this practice, and further-

more it appears that if it was done cor-

rectly, the 2.5 ampere entries, which con-

27b

stitute the bulk of low power readings,

could indicate actual readings of 2.5-2.55

amperes which would still be below the

2.57 ampere theoretical limit.

SP Guueeusveds Granted to the extent that the operating log

for June 8, 1969, did not indicate the cause

of the carrier wave interruption. How-

ever, the maintenance log for June 9,

1969, does contain an explanation for the

interruption.

BP daeevec dees Granted

Se davévsevess Granted as it applies to nighttime operation

only, involving antenna current readings

of 1.2 to less than 1.4 amperes, since read-

ings of 1.4 amperes and higher were un-

likely (Tr. 1169-70), and were probably

due to operator error.

oar Granted.

ae Denied. The exception is not of decisional

significance.

i cseeeee Granted. The issue here involves the validity

of field strength recordings made by the

FCC Field Operations Bureau of the rela-

tive levels of the WOOK signals, in order

to determine whether the station’s opera-

tion was with the daytime or nighttime

power mandated by its license. WOOK’s

consulting engineer presented 2 different

analyses designed to impugn the validity

of these recordings, which were effective-

ly contradicted by the FCC engineer who

participated in the recording of the

WOOK signals. These recordings by

themselves substantiate that on the speci-

fied dates WOOK was not diligent in

28b

changing its operating power to comply

with its license, but their validity is fur-

ther demonstrated by the close agreement

between the stations operating logs and

the recorder charts. (Broadcast Bureau

Exhibits 9, 29, 39(A), 39(b); United

(WOOK) Exhibit E-27).

Oe sveceuneees Denied, as being substantially redundant in

view of par. 113 of the Initial Decision.

5 Peres Granted. The exceptions are relevant in

establishing the validity of the field

strength recording of the WOOK signals.

eee Granted. With respect to exception 31, the

record does explain meter adjustments

(Tr. 5340) and treats the subject of elec-

trical noise (Tr. 5355).

errr Denied, as redundant and not of decisional

significance in view of pars. 116-128, in-

elusive, of the Initial Decision.

Perri reers Denied, as redundant in view of our rulings

on exceptions 25, 26, supra.

OD eavevccvcde Granted. WOOK’s consulting engineer sub-

mitted daytime field strength measure-

ments of WOOK’s signals along 4 radials

around the station in order to determine

the radiation efficiency of its antenna sys-

tem. While the rules require the use of

8 radials for such a purpose, WOOK’s

consultant testified to the effect that suf-

ficient data to establish antenna radiation

efficiency could be obtained on the basis

of 4 radials. Our inspection of his analysis

of the 4 radials indicates that, for the 45

and 315 degree radials, the measurements

29b

are not disposed about the conductivity

line in a manner indicating that the best

fit curve was drawn through them in ac-

cordance with section 73.18(a)(3) of the

rules. Accordingly, a further question is

raised concerning the adequacy of the 4

measured radials.

OP Ktesececuas Granted.

GP sauceeounas Granted. The articles offered were not bona

fide religious articles, and the representa-

tions concerning them, together with the

requests for monetary donations consti-

tuted false, misleading and deceptive ad-

vertising not entitled to constitutional

protection.

GP estactannss Granted. There is no requirement of prior

knowledge. See Ohio Quests, Inc., supra.

OP: vesknsueees Granted. The broadcast references were to

a specific existing lottery in violation of

18 U.S.C. 1304.

OP sstessdined Granted.

OP ssccndiseel Denied. The Judge’s conclusion is a reason-

able interpretation of the evidence of

record.

DP sisacenenes Granted with respect to violations 9, 10, 11,

12, 13, and 16, consistent with, and based

on our rulings on exceptions 18, 19, 20, 21,

and 22. Denied with respect to violation 5

since the exception is cumulative and the

Initial Decision accurately reflects the

evidence of record.

* Incorrectly numbered 45 at the top of page 30 of the Bureau

exceptions.

30b

OP stussvasess Granted, consistent with and based on our

rulings on exceptions 25, 26.

et Saseeuences Granted.

PRT cc cccen Granted. United’s programming is not of

decisional significance.

Farrer Granted in substance. The evidence war-

rants the denial of United’s renewal ap-

plication.

5 ae Granted in substance, as reflected in our

Decision herein.

? Incorrectly numbered 54 on page 33 of the Bureau’s exceptions.

APPENDIX C

FCC 76-457

40653

BEFORE THE

FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D.c. 20554

In re Applications of

Unrtep Texevision Company, Inc. (WFAN-TV)?

Docket No. 18559 ;

File No. BRCT-585

Washington, D.C.

For Renewal of License

Unitep Te.evision Company, Inc. (WFAN-TV)?

Docket No. 18561

File No. BPCT-3917

Washington, D.C.

For Construction Permit

Unirep Broapcastine Company, Ino. (WOOK)

Docket No. 18562

File No. BR-1104

Washington, D.C.

For Renewal of License

WasHINGTON Community Broapcastine Co.

Docket No. 18563

File No. BP-17416

Washington, D.C.

For Construction Permit For

New Standard Broadcast Station

* The applications of United Television Co., Inc. for renewal and

modification of its license for WFAN-TV, Washington, D.C., were

dismissed upon revocation of the license by the Commission, 46

FCC 2d 698, released April 26, 1974, affirmed, C.A.D.C., Case Nos.

73-1963, et al., decided January 20, 1975, 514 F.2d 279, rehearing

denied, May 20, 1975. On June 19, 1975, United filed a petition

for rehearing before the Commission, which will be considered in

a subsequent document.

2¢

Memorandum Opinion and Order

(Adopted: May 19, 1976; Released: May 28, 1976)

By the Commission:

1. In a Decision, 55 FCC 2d 416, released September

12, 1975, the Commission denied the application of United

Broadcasting Company, Inc. (United) for renewal of its

license for standard broadcast station WOOK, Washing-

ton, D.C., and deferred final action on the mutually exclu-

sive application filed by Washington Community Broad-

casting Co. (Community) for new facilities in Washington,

and on a petition for remand filed December 31, 1974, by

United. In an Order, FCC 75-1045, released September 12,

1975, the Commission denied a request for a stay of this

proceeding filed by United. That request was predicated on

new information concerning the reliability of a witness

whose testimony was cited in the Initial Decision. Now be-

fore the Commission are: (1) a petition for reconsideration

and rehearing filed October 14, 1975, by United; a supple-

ment thereto filed January 12, 1976, by United; an opposi-

tion, filed October 28, 1975, by Community; an opposition

and request for expedition, filed January 20, 1976, by Com-

munity; oppositions filed October 30, 1975, and January 27,

1976, by the Chief, Broadcast Bureau; and replies filed

November 6, 1975, and February 4, 1976, by United; and

(2) a petition for leave to amend and an amendment filed

October 10, 1975, by Community; and comments filed Octo-

ber 22, 1975, by the Chief, Broadcast Bureau.’

2 Also before the Commission are: (1) a letter supplementing

Community’s October 10 amendment, filed February 26, 1976; a

letter filed March 11, 1976, by United; a motion to strike United’s

letter and to expedite consideration of United’s pending motion

for reconsideration filed March 23, 1976, by Community; a reply

filed March 30, 1976, by United; and a reply filed April 6, 1976,

by Community; (2) a request for waiver of Section 1.106(f) of

the rules to permit a pleading in excess of 25 pages filed October

8, 1975, by United ; which is not opposed and which will be granted ;

3¢

2. It is a general and sound rule of law that the only

valid grounds for rehearing are manifest error or omissions

so material that their correction will result in substantial

alteration of the original decision. Correspondingly, a re-

hearing will not be granted by the Commission merely for

the purpose of arguing matters which have previously been

considered and resolved. WWI1Z, Inc., 37 FCC 685 (1964).

3. The petition for reconsideration, in major respects,

again urges that the Commission should adopt United’s

version of the facts and law applicable to this proceeding.

These contentions were fully considered and rejected in

our Decision. United presents no new theory for its case or

any reason for placing a different interpretation on the evi-

dence of record. Nevertheless, we have again reviewed the

record in light of United’s pleadings and find no reason to

depart from the findings and conclusions contained in the

Decision.’

4. United’s petition further relies on newly discovered

evidence concerning the reliability of a former employee,

Frank Del Vecchio, who appeared as a Broadcast Bureau

witness. United asserts that Del Vecchio procured a Com-

mission operator’s license through fraud, that he is a con-

victed felon and a liar, that his unfavorable testimony was

motivated by a desire for revenge against a former em-

and (3) a petition to amend specifying a new director and officer,

filed and supplemented on November 7, 1975, by Community, which

will also be granted.

* United also urges that the Decision misstates the Judge’s de-

termination that the offers of ‘‘roots,’’ ‘‘incense,’’ and ‘‘spiritual

baths’’ did not constitute false advertising. 55 FCC 2d at 423.

However, we agree with the Bureau that this inadvertent mis-

statement does not detract from the validity of the Commission’s

Decision, which established a basis for its findings of false adver-

tising apart from the Judge’s discussion of the matter in the Initial

Decision, and which provided ample other, independent reasons for

denial of United’s renewal application.

ployer, and that his false testimony so poisoned the record

that United was denied its right to a fair hearing.

5. In our view, United’s contentions regarding the tes-

timony of Del Vecchio must be examined in the light of all

the facts concerning the record in this proceeding. The

Bureau, in its Proposed Findings of Fact filed J une 30, 1972,

page 241, note 1, stated that it was relying on Del Vecchio’s

testimony only in those instances where it was corroborated

by other evidence. The Judge’s consideration of Del Vec-

chio’s testimony was confined to one paragraph of the

Initial Decision in which he discussed WOOK’s ground

system. No reference was made to Del Vecchio’s testimony

in any of the parties’ exceptions or briefs. In short, Del

Vecchio’s testimony simply did not have any bearing on the

question of United’s responsibility for WOOK’s violations

of the Commission’s technical operating rules. As noted in

our Order denying United’s Request for Stay, FCC 75-1045,

released September 12, 1975, without regard to Del Vec-

chio’s testimony, ample competent evidence exists to sup-

port denial of United’s renewal application on this issue.

In light of the limited context in which Del Vecchio’s testi-

mony was considered in this proceeding, it had no percepti-

ble effect on the Commission’s deliberations and there is no

basis for finding that it tainted the Commission’s Decision

in any way. Mesarosh v. United States, 352 U.S. 1 (1956),

cited by United, was a criminal proceeding where tainted

testimony was heard by a jury. Moreover, in Mesarosh, the

Supreme Court, citing Communist Party v. Subversive Ac-

tivities Control Board, 351 U.S. 115 (1956), stated that an

administrative agency, such as this Commission, can make

an unbiased determination on the basis of a record shorn

of tainted testimony without remanding the proceeding for

a new hearing. Under these circumstances, we are convinced

that no further consideration of this matter is required.

6. The Decision also concluded that, as the record ex-

isted at the time of the Initial Decision, Community was

qualified to be a licensee. Subsequent to the issuance of the

Initial Decision, however, Community’s bank loan commit-

ment expired. Although Community submitted a new com-

mitment which is basically identical to the expired commit-

ment, Community failed to establish that its shareholders

would pledge their stock in Community as required by the

new commitment. Finding good cause for permitting Com-

munity to amend, Brown Broadcasting Co., Inc., 12 FCC

2d 189 (1968), the Commission deferred final action on Com-

munity’s application. Community’s October 10, 1975,

amendment contains pledges of the stock of all but one of

its shareholders and a waiver by Community’s bank of the

requirement of a pledge for that one shareholder’s stock.

No objection to this amendment has been received.

7. Community’s most recent bank loan commitment,

however, expired on February 28, 1976. Instead of filing an

amendment to its financial showing, Community submitted

a letter showing a further bank commitment until 1977. In

a letter dated March 11, 1976, United argued that Com-

munity should be required to amend its application. The

objections raised by United’s March 11 letter are well taken

and Community’s motion to strike United’s letter will be

denied.‘ The Commission can only approve applications

which are in compliance with all statutory and other re-

quirements. Requiring an amendment and the accompany-

ing petition for leave to amend insures that the applicant

is fully qualified and affords procedural due process by pro-

viding the parties an opportunity to interpose objections

*Community’s request for expedition which it filed in conjune-

tion with its Motion to Strike is moot in view of our action herein.

Its similar request filed in its January 20, 1976, Opposition to

United’s Supplement to its Petition for Reconsideration is defec-

tive inasmuch as it is an affirmative request for relief in a respon-

sive pleading. See Mid-Florida Television Corp., 55 FCC 2d 112,

at. 113 1975). Therefore, both requests for expedition will be

dismissed.

during the hearing process. At the present time Com-

munity’s only loan commitment properly before the Com-

mission expired on February 28, 1976. Community has not

given an adequate explanation for its failure to amend, and

we are convinced that it would be inappropriate for us to

act on Community’s application absent a petition for leave

to amend and an amendment showing that Community is

fully qualified to be a licensee of this Commission.’ Con-

sideration of Community’s application will therefore be de-

ferred for an additional 10 days and Community will be

permitted to file such further amendments to its financial

showing as may be appropriate. Cf. Brown Broadcasting

Co. Inc., 12 FCC 2d 189 (1968).

8. AccorpincLy, Ir Is Orperep, That the request for

waiver of Section 1.106(f) filed October 8, 1975, by United

Broadcasting Company, Inc. Is Grantep, and that the peti-

tion for reconsideration and rehearing filed October 14,

1975, and supplemented on January 12, 1976, by United

Broadcasting Company, Inc., Is Dentep.

9. Ir Is FurtHer Orperep, That the petitions for leave

to amend, filed by Washington Community Broadcasting

Co., on October 10, 1975, and November 7, 1975, as supple-

mented on November 7, 1975, Arg Grantep and the amend-

ments Are AccEPTED.

10. Ir Is Furtuer Orpderep, That the requests for ex-

pedited consideration, filed January 20 and March 23, 1976,

by Washington Community Broadcasting Co., Arg Dts-

MISSED.

* However, any objections that United might raise with respect

to Community’s financial proposal, which could have been raised

at the time of the October 10, 1975, amendment, but were not, would

be dilatory and subject to rejection on that ground.

*See United Broadcasting Company (KBAY), FCC 76R-113,

released April 23, 1976; Kittyhawk Broadcasting Corp., 8 FCC 2d

217, 9 RR 2d 1293 (1967) ; and Triad Stations, Inc., FCC 64R-540,

3 RR 2d 1064 (1964).

11. Ir Is FurrHer Orperep, That the motion to strike

United Broadcasting Company, Inc.’s March 11, 1976,

letter, filed March 23, 1976, by Washington Community

Broadcasting Co., Is Denrep.

12. Ir Is FurrHer Orperep, That consideration of the

application of Washington Community Broadcasting Co.

(File No. BP-17416) for a construction permit for a new

standard broadcast station in Washington, D. C. Is Dz-

FERRED for 10 days from the release date of this order to

permit the filing of such further amendments as may be

appropriate.

Frepera, ComMuNIcATIONS CoMMISSION

Vincent J. Mullins

Secretary

APPENDIX D

FCC 73D-7

BEFORE THE

FEDERAL COMMUNICATIONS COMMISSION

Wasuinecrton, D.C. 20554

In Re Applications of

Unrrep Terevision Co., Ivo. (WFAN-TV),

Docket No. 18559

File No. BRCT-585

Wasurneron, D.C.

For Renewal of License

Unrrep Texevision Co., Ino. (WFAN-TV),

Docket No. 18561

File No. BPCT-3917

Wasuinoton, D.C.

For Construction Permit

Unrrep Broapcastine Co., Inc. (WOOK),

Docket No. 18562

File No. BR-1104

Wasuinoron, D.C.

For Renewal of License

Wasuineton Communtry Broapcastine Co.,

Docket No. 18563

File No. BP-17416

Wasurnoron, D.C.

For Construction Permit for New Standard

Broadcast Station

APPEARANCES

Paul Dobin, Roy R. Russo, Lawrence N. Cohn and Roy

F. Perkins, Jr. (Cohn & Marks) on behalf of United Tele-

vision Company, Inc. and United Broadcasting Company,

Inc.; Monroe Oppenheimer (Surrey, Karasik, Greene &

Hill) on behalf of Washington Community Broadcasting

Co.; Ramsey L. Woodworth (Hendrick & Lane) on behalf

of witnesses Donald W. Parker and Peter B. Lassotovitch;

and William A. Kehoe, Jr., Thomas A. Fitzpatrick, Joseph

Stirmer and Michael Faber on behalf of the Chief, Broad-

cast Bureau, Federal Communications Commission.

Init1aL Dectsion oF ApMINisTRATIVE Law JupcEe Forest L.

McCLen NING

(Issued February 9, 1973; Released February 22, 1973)

PRELIMINARY STATEMENT

1. By order released June 13, 1969 and redesignation or-

der released February 24, 1972, pursuant to the provisions

of Section 309(e) of the Communications Act of 1934, as

amended, the above-captioned applications were designated

for hearing in a consolidated proceeding.’ Except as indi-

cated by the specified issues, the order of designation

found Washington Community Broadcasting Co. (herein-

after Community) qualified to construct, own and operate

its proposed new standard broadcast station; United Tele-

vision Company, Inc. (hereinafter United) qualified to con-

struct, own and operate Television Station WFAN-TV;

‘The original order of designation dismissed, pursuant to its

request, the application of Washington Civic Television, Inc. for a

construction permit to operate on television channel 14 and by

order released April 28, 1970 (FCC 70M-622) the application of

Washington Community Broadcasting Company for such permit

was also dismissed. These applications were mutually exclusive

with we application of United Television Company, Inc. for re-

newal of license of Station WFAN-TV. Legal effect of their dis-

missal is to render moot issues 8 and 9(b), infra.

and United Broadcasting Company, Inc. (hereinafter

United) qualified to own and operate Standard Broadcast

Station WOOK. The issues as originally designated, modi-

fied and enlarged by subsequent orders are as follows: ?

1. To determine whether the broadcast by Station

WOOK of announcements which advertised articles

such as ‘‘Conquer Roots”’, ‘*Money-Drawing Roots’’,

and ‘‘Spiritual Baths’’, or which offered to give three-

digit scripture references to be used for ‘financial

blessings’’, constituted false, misleading or deceptive

advertisements.

2. To determine whether United Broadcasting Com-

pany, Inc. has taken reasonable measures to protect its

listening public from false, misleading, or deceptive

advertising over its facilities.

3. To determine whether Station WOOK has broad-

cast announcements or information concerning a lot-

tery in contravention of Section 1304 of Title 18 of the

United States Code, and of Section 73.122 of the Com-

mission’s Rules.

4. To determine, in light of the evidence adduced

under [ssue 3 above, whether United Broadcasting

Company, Ine. and United Television Company, Inc.

possess the requisite and/or comparative qualifications

to be Commission licensees.

5. To determine the efforts made by United Broad-

casting to ascertain the needs and interests of the areas

served by Station WOOK and the means by which the

licensee proposes to meet those needs and interests.

* Issues 1 through 9 are as numbered in the orders specifying

these issues. Order FCC 70R-185 designates issues 10(a), (b) and

numbered in the various orders specifying these issues, but have

been numbered herein for convenience,

6. To determine in the light of the evidence adduced

under the foregoing issues whether a grant of the re-

newal of the license of Station WOOK would be in the

public interest.

7. To determine which of the mutually exclusive ap-

plications for a license to operate on 1340 ke in Wash-

ington, D.C. would better serve the public interest,

convenience and necessity.

8. To determine which of the mutually exclusive

applications for a license to operate on Television

Channel 14 in Washington, D.C. would better serve the

public interest, convenience and necessity.®

9. To determine, in the light of the evidence adduced

pursuant to the foregoing issues, (a) which of the AM

applications should be granted, and (b) which of the

TV applications should be granted. (* supra)

10. (a) To determine all of the facts and circum-

stances surrounding the operation of Station WOOK

at Washington, D.C., under the management of United

Broadcasting Company, Inc., with particular respect to

the alleged departures from Commission Rules and

Regulations and license authorization as disclosed by

the Official Notice of Violation issued to the licensee in

October, 1969, the responses thereto and related docu-

ments.

(b) To determine whether, in light of the evidence

adduced pursuant to Issue (a) above, United Broad-

casting Company, Inc., in the operation of Station

WOOK, engaged in conduct which reflects such negli-

gence, carelessness, ineptness or disregard of the Com-

mission’s processes that the Commission cannot rely

upon the licensee to fulfill the duties and responsibili-

ties of a licensee.

pursuant to the foregoing issues, whether United

Broadcasting Company, Inc. possesses the requisite

and/or comparative qualifications to remain a Com-

mission licensee.

11. To determine whether the programming of Sta-

tion WOOK has been meritorious, particularly with

regard to public service programs.

12. To determine whether the programming of Sta-

tion WFAN-TV has been meritorious, particularly

with regard to public service programs.

13. To determine whether Washington Community

Broadcasting Co., its principal, Dr. Phillip C. Brooks,

or any of its other principals, failed to keep its appli-

cation up to date as required by Section 1.65 of the

Rules; and if so, whether the failure reflects adversely

on the applicant’s comparative qualifications.

14. To determine whether Washington Community

Broadcasting Co. has sufficient funds available to con-

struct and operate its proposed facility, and, in light

of this determination, whether the applicant is finan-

cially qualified.

2. By order released July 24, 1970 (FCC 70-812) the

Commission issued a Notice of Apparent Liability pursuant

to Section 503(b)(2) of the Communications Act for the

violations set forth in an Official Notice of Violation issued

to United Broadcasting Company, Inc. on October 3, 1969.

The following is specified therein:

The inclusion of a forfeiture notice is pursuant to

> As a result of the dismissal of the competing television appli- Commission policy and is not to be construed as in any

cations, the comparative issue regarding Channel 14 has been way indicating what the final disposition of this pro-

mooted. ceeding should be. See In WPRY Radio Broadcasters,

Inc. FCC-650 noted at 23 FCC 2d 969. Indeed consid-

eration of monetary forfeitures in this proceeding

would first require affirmative findings in favor of

United on the disqualifying and comparative issues.

Such findings are of course dependent upon the facts

as elicited in the hearing. In determining whether or

not the imposition of a monetary forfeiture would be

appropriate the Hearing Examiner should give con-

sideration to the forfeiture of $7,500 paid by United

at the time of its 1966 license renewal. See United

Broadcasting, Inc. 4 FCC 2d 293 (1966)... . For the

purpose of determining whether or not repeated viola-

tions of the Communications Act or the Commission’s

Rules have occurred, official notice is taken of the

Hearing Examiner’s findings in United Broadcasting

Company, Inc., supra.

This order further specifies the following:

That if the Hearing Examiner should determine that

the entire hearing record requires a finding that the

public interest would be served by the grant of United

Broadcasting Company, Inc.’s application for renewal

of its license for Station WOOK, he shall make find-

ings of fact as to whether any willful or repeated viola-

tions of the Communications Act or the Commission’s

Rules thereunder (as specified in the Official Notice of

Violation issued to United Broadcasting Company,

Inc. on October 3, 1969) have taken place within one

year of the issuance of this Memorandum Opinion and

Order, and, if so, shall recommend to the Commission

whether or not a forfeiture should be issued against

United Broadcasting Company, Inc., in the amount of

$10,000 or some lesser amount pursuant to Section

503(b) of the Communications Act.

3. The initial prehearing conference was held on July

22, 1969 and other conferences and hearings were held dur-

ing the period October 1969 through February 1972. The

record was initially closed on February 1, 1972. Following

release of the redesignation order the record was reopened

and March 7, 1972 the parties stipulated into evidence the

entire prior record in the redesignated proceeding. A fur-

ther hearing session was held on April 10, 1972. The record

was last closed by order released January 10, 1973. Pro-

posed findings of fact and conclusions of law and reply

findings of fact were filed by all parties.

Finpincs or Facr

United Broadcasting Company, Inc.

4, United Broadcasting Company, Inc., the licensee of

Station WOOK Washington, D.C., has one class of stock,

common voting stock. All of the outstanding stock is owned

by Richard Eaton. The following are officers and directors

of United:

Name Office

Richard Eaton ....President, treasurer, and director.

Pierre Eaton ..... Vice president, secretary, and director.

E. Carlton Myers .Vice president.

Clifton B. Holland . Do.

Morton Silverman .Vice president and secretary.

Mr. Silverman became an officer April 26, 1971. Mr. Hol-

land became an officer October 1, 1966. Mr. Myers became

an officer November 1, 1965. Pierre Eaton became an officer

and director May 1, 1957. Richard Eaton has been an officer

and director of United since its inception.

5. United owns all of the stock of United Television Com-

pany, Inc. and of Friendly Broadcasting Company. It owns

the majority of the stock of Tele-Broadcasters, Inc. These

companies and other subsidiary and related companies, as

listed below, are the licensees or permittees of the follow-

ing broadcast stations:

United Broadcasting Company, Inc.‘

WOOK, Washington, D.C.—AM

WFAN, Washington, D.C.—FM

United Television Company, Inc.

WFAN-TV, Washington, D.C.—TV

Friendly Broadcasting Company

WJMO, Cleveland Heights, Ohio—AM

WLYT, Cleveland Heights, Ohio—FM

United Television Company of New Hampshire

WMUR, Manchester, New Hampshire—TV

United Broadcasting of Florida, Inc.

WFAB, Miami-South Miami, Florida—AM

United Broadcasting Company of Eastern Maryland, Inc.

WSID, Baltimore, Maryland—AM

WLPL, Baltimore, Maryland—FM

United Television Company of Eastern Maryland, Ine.

WMET-TV, Baltimore, Maryland—TV

United Broadcasting Company of New York

WBNX, New York, New York—AM

Montgomery County Broadcasting, Inc.

WINX, Rockville, Maryland—AM

Tele-Broadcasters of California, Inc.

KALI, San Gabriel, California—AM

*‘ United Broadcasting Company, Inc. at the time of hearing also

held a construction permit for television Station WJMY Allen

Park, Michigan. Application File No, BAPCT-479 for assignment

of this permit to WJMY-TV, Inc. was granted by Commission

action of June 1, 1972. An application for assignment of license

of Station WMET-TV Baltimore, Maryland is pending.

Intercontinental Radio, Inc.

KVEZ, San Mateo, California—FM

KECC Television Corporation

KECC-TV (CP). El Centro, California—TV

KIKU Television Corporation

KIKU, Honolulu, Hawaii—TV

Religious Programming of Station WOOK

6. The entire broadcast schedule of Station WOOK from

6:00 a.m. Sunday to as late as 1:30 a.m. Monday, except

for the hours of approximately 1:00 p.m. to 6:00 p.m, is

religious programs. Though there is fluctuation from week

to week approximately 40% of these programs are broad-

cast live, the remainder being via tape. Most of the min-

isters who broadcast the programs purchase the time and

in the case of transient ministers, payment in advance of

broadcast is required. Certain programs as hereinafter

noted, however, are broadcast on a sustaining basis.

7. Mr. Elmer Carlton Myers, Jr. has been the vice-presi-

dent and general manager of Stations WOOK and WFAN-

TV since 1965. As such, he directs the day-to-day opera-

tions of both stations. He is responsible for all phases of

the operations, including programming, sales, engineering,

soma and traffic. He reports directly to Mr. Richard

aton.

8. Mr. Richard Eaton, as president of United, follows the

affairs of WOOK as closely as possible, has daily contact

by telephone with the station manager and is at the station

at least one afternoon or evening a week. He reviews the

programming, sales and public service policies of the sta-

tion. He discusses programming with Messrs. Myers and

Holland and the -religious broadcasts with Mr. Otis Von

Blasingame, the station’s marketing and promotion man-

ager, on a regular basis. Initially, he satisfied himself of

the acceptability of a minister for appearance on Station

10d

WOOK by personally going to the church. From at least

as early as 1960 he has discussed all religious programs

with Mr. Van Blasingame, who is the son of a minister

and frequently involved in the saie of broadcast time for

religious programs. In 1965 he delegated to Messrs. Myers

and Von Blasingame the responsibility of reviewing the

acceptability of new preachers and supervision of the con-

tent of religious programs. Mr. Von Blasingame was as-

signed the duty of listening to all taped religious programs

prior to broadcast to determine just exactly what was

‘‘thought would be in the public interest in accordance with

the first amendment.’’ The acceptance of programs by

gypsies, palmists or root doctors, though purportedly re-

ligious, was banned by Mr. Eaton.

9. The live religious programs carried by WOOK in-

elude the services of various local churches carried by

means of direct lines to the churches. Included are a one-

hour program of the Bibleway Church, one-hour program

of the National Presbyterian Church, half-hour program

from the Deanwood Church of Christ, *4 hour program

of the St. John’s Baptist Church, half-hour program from

the Gospel Tabernacle, half-hour program of the New

Bethel Church, half-hour program of the Northeast Holy

Trinity Church and a series running at times a half-hour

and at other times an hour from the New St. Paul Baptist

Church, Ten-minute programs are originated in the studios

of WOOK by Reverend Lattimore and by Reverend E. E.

Peake, both Baptist ministers; Mother’s Hour is a half-

hour program of religious music originated in the studios

of WOOK; Temple of Islam is a half-hour Black Muslim

program; and Message of Hope is a 15-minute program

broadcast daily by Richard Eaton. Programs of a number

of itinerant ministers and other religious programs were

also carried which led to specification of issues 1 and 3,

supra, inquiring into the broadcast of announcements re

Conquer Roots, Money-Drawing Roots, Spiritual Baths or

offers to give three-digit scripture references to be used

11d

for financial blessings. As developed on the record these

were programs by ministers Thomas, Williford, Bonner,

Allen, Williams, Belk, Franklin, Fleming, Cooper, Butler,

Jefferson, Pryor and Dowell.

10. January 3, 1967 Community filed a petition to deny

the application for renewal of license for Station WOOK

in which it is alleged, inter alia, that the station had carried

a number of ‘‘spurious religious programs’’ which under

the guise of religion, offer listeners magic articles such as

money-drawing incense, conquer roots and spiritual baths

which will cure sickness, pay bills, bring estranged spouses

together, give quick cash money, provide employment and

homes and enable the users to win instead of losing in ‘‘the

game.’’ ‘‘The game’’ referred to as established by the rec-

ord is the so-called ‘‘numbers game,’’ a form of illegal

gambling operating in the Washington, D.C. metropolitan

area.

Numbers Game

11. Individuals who play the ‘‘numbers game’’ place

their bets in any amount ° with a ‘‘numbers writer.’’ These

bets are taken throughout the District of Columbia metro-

politan area. The ‘‘numbers writer,’’ excluding single ac-

tion bets, receives a commission on all bets taken and in

addition receives a 10% commission, paid by the bettor,

in the event a number played hits, i.e., is a winning number.

12. The ‘‘numbers writer’’ turns in the bets he has taken

to a specified location termed a ‘‘number drop’’ between

the hours of 12:30 p.m. to 2:15 p.m. The ‘‘numbers drop”’

is operated by a ‘‘numbers writer’’ who receives a little

higher commission than an ordinary ‘‘numbers writer’’

as he holds or ‘‘sits on’’ the work of 3 or 4 other writers

who turn their respective bets into him. A ‘‘numbers drop’’

is usually located in a liquor store, restaurant, apartment

* Bets vary in amounts usually from 25 cents up.

12d

or a private home. At a specified hour during the day a

‘‘runner’’ or ‘‘pickup man’’ arrives at the ‘‘numbers

drop’’ to pick up the numbers slips and money bet. The

runner’s number of drops varies depending upon the size

of the operation. At a specified time the ‘‘runner’’ takes

all work collected to a ‘‘numbers office’? where it is tabu-

lated to determine ‘‘hits’’ and the commission due to the

various ‘‘number writers.’’ Numbers bets for that day are

usually not accepted after between 2:15 and 2:30 p.m.

13. The head man or proprietor of the operation is

called a ‘‘backer.’’ He puts up the money to run the opera-

tion, pays off on winning numbers and handles all over-

head such as rent, telephone, etc. The ‘‘backer’’ is usually

also engaged in a legitimate business.

14. A bettor may play any three digit number with a

combination bet being a bet on a three digit number to

‘shit’? in any one of six ways. For example, 4 and 5 and

1 to hit as 145, 451, 514, 154, 415 or 541.° The phrase ‘‘play-

ing it six ways’’ is also used to designate a combination

bet. A three digit winning number is called a ‘‘straight hit”’

with the usual payoff being 600 to 1 which, less commission,

pays to the bettor 540 to 1.’ A bettor may play a parlay, in

which a three digit number may be played by betting for

instance a dollar on each of its six various two digit com-

binations. A leader bet is where the bet is on less than all

six of the possible two digit combinations. (* supra) A ‘‘sin-

gle action’’ bet is where the player bets one of the three

° If the number bet on is 334, where two of the digits are iden-

tical, then there are only three different combinations that can

be played.

* The proprietor of each operation puts out a ‘‘cut card’’ giving

specified numbers on which he pays reduced odds, at times as low

as 100 to 1. The numbers writers carry and exhibit these cards to

the bettors. These are called ‘‘cut numbers’’ and are used when

a number is being heavily played and has not won for too long a

period of time.

13d

digits, i.e., the first, middle or last digit—in this type of

wager the odds generally paid are 8 to 1 plus the amount

bet. Payoff may vary from the above depending on the

particular operation.

15. Payoffs on the numbers game are usually made once

a week, on a Monday, to all those who hit in the prior week.

Some operations, however, pay off winners on the morning

following the winning hit. The money travels down the

hierarchy in the same manner it went up, i.e., from the

‘‘backer’’ on down to the bettor. These are the logistics

of a carrier operation. There is also a telephone operation,

which is now often used, with the writer who operates the

drop calling in the bets to the numbers office.

16. In the Washington, D.C. metropolitan area, it is

estimated there are 20 to 30 separate ‘‘backers’’ or owners

who participate daily in numbers operations. On occasion

“‘backers’’ may lay off bets with one another, each employs

separate personnel, and each keeps the profits derived

from his operation. Because of the number of independent

operations, the term ‘‘numbers game”’ is considered by the

Metropolitan Police Department to designate a type of

game, rather than a specific or single game or operation.

17. The winning number each day is determined from the

mutual prices paid on particular races at a specified track

by use of the first digit to the left of the decimal point after

totalling the mutual payoffs on a two dollar bet. Al! opera-

tors use the same number which is selected by five or six of

the bigger backers getting together socially or by telephone

and deciding which track and which races to use to deter-

mine the winning number. Formerly three races were used,

one for each digit of the three digit number. Presently six

races are used, the first digit to the left of the decimal point

being that in the sum of the mutuals paid in two races. If

no racing is conducted on a particular day at the track

being used, all ‘‘backers’’ change to the same different

track to get the winning number. If the scheduled racing

14d

card at the track being used is cancelled because of weather

conditions all bets go over until the next day and all

‘*backers’’ act in unison in this policy. Bets made on a num-

ber after the cut-off time are carried over to the next day.

The gambling population learns the winning number from

the writers or by word of mouth on the street. The winning

number usually is known at approximately 6:00 p.m.

18. Several publications are sold in the metropolitan

area which allegedly aid the numbers player. One is a pub-

lication called ‘‘Sneaky Pete’’ which publishes the past

performance of certain numbers and predicts future win-

ning numbers. ‘‘Canary Bird’’ is a publication similar to

‘Sneaky Pete’’ in that it lists past winning numbers and

predicts future winning numbers. These publications are

sold at newsstands or stores in Washington, D.C. and there

is no law prohibiting their sale. In addition, ‘‘ Policy Pete’s

Mutual Number Dream Book,’’ and ‘‘National Dream

Book,’’ two other publications relating to numbers, are

sold in Washington, D.C. without prohibition. They link

names, words, birth year and events to different three digit

numbers and allegedly aid a player in the numbers game.

The National Dream Book also gives interpretations for

various dreams together with a three digit number for

each dream.

19. The numbers game is a lottery with the mathematical

probability of selecting a winning 3 digit number being

1/1000. The mathematical probability of selecting a win-

ning 3 digit number twice in succession is 1/1 million. The

possibility of this occurring three times in succession is

1/1 billion; four times in succession, 1/1 trillion; 5 times in

succession, 1/1 quadrillion.

Reverend Frank Thomas

20. Reverend Frank Thomas, now deceased, formerly had

a taped program broadcast by WOOK. He was an ordained

minister associated with the First Christian Spiritual

Church of America in Cleveland, Ohio. A broadcast by

15d

Reverend Thomas, made over WOOK on September 5,

1966 contained, inter alia, the following:

I want you to take the package that I am going to

send you and place it in your tub on an even hour and

I want you to repeat or read the 23 Section of Psalms

and see what the Lord can do for you.

To get the very special Hi John the Conqueror

spiritual bath for that week, the very special blessed

psalm to be used for prayer and meditation and two

designated pamphlets, Prophet Thomas stated listeners

should write to Prophet Thomas, P. O. Box 1228,

Cleveland, Ohio, and to be sure to include a trinity love

offering of $3.00 to help keep this broadcast on the air.

Send all donations in cash or money order only.

No juestions were raised by Mr. Von Blasingame or other

WOOK personnel with reference to the content of this pro-

gram or as to what made up the spiritual bath that would

be sent.

Reverend Eli Williford

21. Reverend Eli Williford attended the Mount Canaan

Spiritual Society, a religious seminary located in New

York and received the degree of Doctor of Divinity. He

had commenced preaching at the age of 13 or 14 and was

ordained a minister at the age of 17. He is presently the

minister of the Mount Canaan Spiritual Church in Wash-

ington, D.C. and Baltimore, Maryland and is Vice-Bishop

of the Church. Reverend Williford has used radio in his

evangelical work since approximately 1965, and has had

programs broadcast on Stations WOOK and WSID in

Baltimore. He discontinued broadcasting on WOOK in

1967. When he used the facilities of WOOK, his brvadcasts

were usually live and originated from the station.*

*This program was broadcast Monday mornings between 12:00

and 12:30 a.m.

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22. On September 6, 1966 Reverend Williford broadcast

a program over WOOK which contained, inter alia, the

following:

For this week has been a blessed week. Last Thurs-

day this I week I blessed you. Yes indeed. Then again

on Saturday I blessed you. And I want you to listen

to this. A lot of you don’t believe I got it but I want

you to know in this song that I got it. [singing] Yes

I want you to know one thing. This Monday, Septem-

ber 5, Labor Day, that I have it. Bomebody says, what

you got? I don’t have nothing but the naked real thing,

to help you on your way. You know everybody is ask-

ing for something. I know I am. And I want to see 13

folks this Monday. I call it ‘The Lucky Thirteen.’

Thirteen folks will be lucky. If you are unlucky you

are certainly not lucky. . . . I want to make thirteen

folks lucky this day, Monday, September 5 starting at

7 o’elock throughout 1 p.m. If your bills are behind

that’s my job. I’m here to help you to get money to

pay your bills. ... You need some money to straighten

the condition out. If you want some I want you to see

me today starting at 7 a.m. through 1 p.m. Lucky 13.

I declare before the sun goes down Thursday evening

God will ride through the city.

To get the benefits of being one of the lucky thirteen,

Phophet Williford told listeners it don’t cost nothing.

However, he added:

Tomorrow night I want you to bring me three dimes.

That’s all I want you to do. Whatever your problem

may be, come on and bring me three dimes tomorrow.

... I want you to see me in private for your blessing.

Somebody says how much does it cost. It don’t cost

nothing. But I’m asking you to give $10 to the cause

of Christ. Amen. You drink that much up a week then

you’re too narrow minded to help yourself. You smoke

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$10 up a week. You go into the liquor store when you

get off the job on Friday and spend $20. Lots of you

spend $25 and $35 for some liquor and you’re too

narrow minded to get out and help yourself. I’m tell-

ing you the truth. That’s why God don’t bless some

folks. They pay God too cheap.

23. Reverend Williford explained that the figure 13 re-

ferred to above represented 13 disciples who constituted a

radio club from whom donations to keep the program on the

air were requested and obtained and that the reference to

three dimes represented the trinity, the dimes being a do-

nation to the church. He testified that the program did not

refer to betting or gambling in any way as gambling is

contrary to the Pentecostal doctrine of his church. At one

point he received a policy statement from Station WSID,

(see paragraph 27, infra) which prohibited reference to the

numbers game, roots, herbs, medals, oils, etc., but believed

it did not apply to him because he did not preach the use

of such materials.

Bishop M. Bonner

24. Bishop M. Bonner had a program carried by WOOK

for some time but his broadcasts were discontinued in

April 1969. At that time, United was visited by agents of

the Federal Bureau of Investigation who referred to a

grand jury investigation of Bishop Bonner’s activities be-

ing conducted in Philadelphia, Pennsylvania and requested

tapes of Bonner’s broadcasts. Mr. Myers concluded that

the tapes related to the grand jury investigation and for

that reason terminated Bishop Bonner’s broadcasts.

25. In a broadcast on September 5, 1966 Bishop Bonner

requested listeners {o come for a ‘‘John The Conqueror

Root,’’ and a ‘‘very special root,’’ a ‘‘special money-draw-

ing root.’’ He stated that, inter alia, the ‘‘money-drawing

root’’ could make one ‘‘the most successful person in the

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game, .. .’’ and that while on a New Orleans waterfront

last night ‘‘the spirit of the Lord touched me and put a

straight scripture on my mind and I want those in Wash-

ington, D.C. that want to be blessed in a hurry that want

to be blessed right now I want them to come for this

straight scripture. This is a straight, straight— this is a

straight scripture. Have you ever seen a straight line? This

is a straight scripture.’’ He further stated that also on

that day he was passing out ‘‘a very special money-draw-

ing incense.’’ At several points in the program he implored

listeners to come by to get the benefits of these items

stating at one point as follows:

Starting at 7:00 a.m. before you go to work Monday

morning, come by. If you have to take off, take off.

Don’t go to work Monday morning. If you got to be

late, call and say I’ve got to go to the doctor. I’m sick.

The baby took sick. The baby fell down the steps.

Grandmother took sick. Just anything happened, but

come by 1443 G Street, N. E. before you go to work

on tomorrow morning.

26. Mr. Von Blasingame testified he made it clear to

Bishop Bonner before he went on the air at WOOK that

he could not mention special roots or any other kind of

root and following this broadcast told him that mentioning

roots in religious programs was a violation of station

policy. No questions were raised as to the remainder of this

program. Although the above broadcast by Bishop Bonner

violated Mr. Von Blasingame’s express instructions, he

was not taken off the air. The matter was thereafter dis-

eussed with Messrs. Myers and Eaton. (See paragraph 53,

infra.) Bishop Bonner broadcast weekly over Station

WOOK regularly for a period of three and one-half to four

years between 1965 and 1969. He paid United approximately

$250 to $300 per week for this time.

19d

Written Guidelines

27. In 1968 Mr. Eaton’s son, Pierre, who was associated

with United’s Station WSID in Baltimore, formulated a

written policy regarding religious programs at that sta-

tion. He forwarded a copy to his father. In consultation

with Mr. Myers he decided that the document would be

used to establish guidelines for Station WOOK’s religious

programs and it was given to Mr. Von Blasingame for

distribution to and securing the signatures of the various

ministers using Station WOOK. Mr. Von Blasingame was

given the responsibility for interpretation and application

of these guidelines. He thereafter decided that compliance

with or adoption of part 5 would not be required as ‘‘the

recitation of chapter numbers, et cetera, were as much a

part of religious services as singing of a hymn .. .’’ The

full text of the document as utilized by Station WOOK

is as follows:

Poticy Recarprnc Att Reuiciovs Broapcasts

In connection with our agreement for the presenta-

tion of programming by you over Radio Station

WOOK, Washington, D.C., it is understood and agreed

as a material part and condition thereof that no pro-

sramming of the following kinds will be presented:

(1) Advocating, stating or suggesting that in-

jury, disease, accidents, death or other misfortune

will be avoided, mitigated, prevented or the impact

thereof in any way eased by:

(a) The use of herbs or tonics, or the con-

sumption, application to the body, or other

use of any vegetable, fruit, weed or other

product of nature;

(b) The possession, wearing or use in any

way of bracelets, rings, scarves or any other

article of jewelry or clothing;

20d

pictures, books or other printed matter;

(d) The possession or use in any way of

religious articles (including statutes and

crosses) or symbols;

(2) Advertising of any of the foregoing items

for the foregoing purposes.

(3) Advocating, stating or suggesting that any

of the things or activities in paragraph (1) above

will or may provide solutions to business, financial,

marital, family or personal problems, or effect an

improvement in any business, financial, marital,

family or personal situation.

(4) Gift, prize or award by contest, lottery or

similar arrangements involving chance and a win-

ner or winners.

(5) Chapter numbers, paragraph numbers or

song numbers except in connection with a recita-

tion of the chapter, paragraph or a verse of the

song in full.

It is understood that programming of the foregoing

kinds if broadeast by Station WOOK could involve

violations of the law and the rules and policies of the

Federal Trade Commission and the Federal Communi-

cations Commission, with attendant losses for the li-

censee. Accordingly, it is understood and agreed that

for each violation of the foregoing, you will pay the

sum of One Thousand Dollars ($1,000) in liquidated

damages to the United Broadcasting Company, Inc.

If this correctly reflects our agreement, please indi-

cate by signing a copy of this letter in the space pro-

vided below and returning it to me.

21d

Queen Mother Ruby Etta Allen

28. Queen Mother Ruby Etta Allen, an itinerant min-

ister, broadcast programs over Station WOOK for ‘‘a few

months.’’ On February 23, 1969 she broadcast her program

‘‘Showers of Blessings’’ over Station WOOK on which she

offered a ‘‘Seven Day Blessing Plan’’ for a donation of

$10.50. In her broadcast, it was represented that during

her first week in Washington, D.C. God blessed the people

three times from the blessing plan and through her blessing

plan had on Monday blessed ‘‘on the 25th Psalm’’ and ‘‘on

Psalm 71 and 9 on Wednesday.’’ The winning numbers in

the numbers game on Monday and Wednesday of the pre-

ceding week were 250 and 719. For that week she stated

‘*God has assured me that he would deliver you from 2 to

5 times within the next seven days through my blessing

plan’’ and cited in support the above claimed previous two

results.

Reverend J. Williams

29. On February 16, 1969, Reverend J. Williams, an

itinerant minister, broadcast a program on WOOK in

which he represented that he brought a ‘‘money blessing’’

the preceding week. He further stated that he has ‘‘a

straight hit for sucecess’’ and that *‘I blessed last week on

Monday, Tuesday and Friday,’’ . . . ‘‘I told children to

ask God for $953; I told them to ask God for $905; and I

told them to ask him for $301 and oh you were blessed

houestly three times last week.’’ He further represented

that ‘‘I’m going to do the same fur you this week here in

Washington,’’... ‘‘I have a straight .. . I have a straight

hit for success for Monday and Tuesday here in the city

of Washington. ... If you’ve never been helped see me this

week because I have three hits for success for this week.

I have three hits for success this week. .. . I have big money

blessing for Monday, that is going to bless you in a hurry

22d

that’s going to give you big money. I said it. I guarantee it.

I know what I can do and I know what I have done before.

Experience is your best teacher and I am going to give you

here in the city of Washington whatever you want. I’m

going to give you a home. I’m going to give you a car. [’m

going to give you a bank account. Whatever you need,

whatever your concern is financially, I have your answer.’’

The winning numbers in the numbers game on Monday

and Tuesday of the previous week were 953 and 905. The

winning number for Friday was 351 rather than 301, this

having been the winning number on Wednesday.

30. On March 23, 1969 Reverend J. Williams (with John

Little Jesus) broadcast a program over Station WOOK in

which it was represented that ‘‘We blessed this past week.

Yes, we did what we said we would do, we did it. And God

blessed you through the 77th Psalm and the second verse,

the 64th Psalm and the 5th verse, and also the 70th Psalm

and the 2nd verse. We were good last week, but this week

God knows we’re going to do much better.’’ As alleged in

the petition to enlarge issues (Exhibit 3 thereto) the win-

ning numbers in the numbers game on March 19th and

20th were 645 and 702. The number 772 was not a winning

number that week.

Reverend James Belk

31. On March 30, 1969, Reverend James Belk broadcast

a program on Station WOOK in which he offered ‘‘a seed

of prosperity’’ and represented that ‘‘I told you how we

would read our Psalm 60-62; Praise God, 62 and 6. I wanted

you to read it, I wanted you to read it.’’ The winning num-

ber in the numbers game on March 25th was 626. He urged

listeners to write him and come see him personally.

Bishop R. Pryor

32. On March 23, 1969, Bishop R. Pryor broadcast a pro-

gram on WOOK in which he said ‘‘My telephone number

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is 547-3672. The first three figures is 547—My God, my

God. And you take the mysterious 2 that was blessed

through last week, if you place it on the 5 you'll see it’s

still working for you. You’ll see its still working for you

and the 74th and the 7th verse was a blessing to Washing-

ton, D.C. . . . I want you to call this number and don’t

fail to let it be a blessing to you, the number. Because you

know that the 74th Psalm and the 7th verse was a blessing

to you and the mysterious 2 is still working for you.”’

The winning number in the numbers game in Washington

on March 17, 1969 was 747. In a broadcast made by Bishop

Pryor over Station WOOK on March 30, 1969, he repre-

sented that the ‘‘46th and the 5th verse was a blessing to

you, using the mysterious 2 that I had been talking about

all last week.’’? The winning number on March 25, 1969

was 465.

Father P. H. Franklin

33. On June 1, 1969, Father P. H. Franklin broadcast a

program on WOOK in which he represented:

On the week before last, I told you, Sunday before

last, I told those of you that would read with me the

30th Psalm the first verse. God knows I told you. And

those of you that came to see me know I told you. And

those of you that were down from Alexandria came

here and gave me a fine donation and said Father,

thank you for giving me the scripture to read. You

know what I told you and 1 don’t have to get on the

air and say, I said this and I said that, for the world

knows that they came to see me—it’s a matter of record

what I told you.’’

The winning number on May 24, 1969 was 031.

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Reverend J. Fleming

34. In a broadcast on April 17, 1969 Reverend J. Flem-

ing promised to send a ‘‘bible scripture that is a sure

blessing’’ in exchange for a $2.00 ‘‘love offering.’’ On

April 28th, Mr. Michael Wilson sent Reverend Fleming

$2.00 and received a card in return, which, inter alia, had a

handwritten note ‘‘Read Psalm 38.2.’’ In a broadcast on

May 4, 1969, Reverend Fleming urged listeners in financial

trouble to write for a ‘‘blessing’’ and promised to ‘‘rush

you an answer’”’ and asked that after God has blessed you

send me $100. Mr. Richard Denney sent Reverend Flem-

ing $3.00 and received a reply which contained, inter alia,

a handwritten note stating 43 Psalm-1 verse and 51 Psalm-

7 verse.

35. On June 8, 1969 Reverend Fleming broadcast a pro-

gram on WOOK in which he promised a one way day deliv-

erance to the many in need of a financial blessing. He rep-

resented that God blessed you last week, ‘‘I know that the

82nd Psalm and the 7th verse was a blessing to you. I

know that the spirit of the lord went before you and made

easy and successful your journey with the 31 Psalms.’’

The winning number in the numbers game on May 26, 1969

was 782 and the winning number on May 24 was 031. He

urged all listeners ‘‘... to get on your way right now and

don’t let nothing stop you and meet me today at the Bel-

mont—at the Pitts Motor Hotel, 1451 Belmont Street... .

I’m going to give you a message of deliverance and I tell

you Monday evening God will have gone before you and

made easy and successful your troubled journey.”’

Reverend John W. Dowell

36. In a broadcast delivered by Reverend John W. Dow-

ell on March 16, 1969, it was asserted, inter alia, that ‘‘.. .

many people have been able to pay off their bills by reading

the Bible verses he [Reverend Dowell] has given them.’’

Alleged testimonial] letters were read in one of which the

writer stated ‘‘I noticed that you gave everyone something

25d

and told them to put it in their purse or pocket book and

I’m just writing this letter to let you know that the purse

fell on this past Tuesday and I was blessed with $270 for a

50¢ investment.’’ In another, it is stated that ‘‘I followed

your advice and used my purse on this past Tuesday ac-

cording to the 3 wise men and God blessed me with $540.

I would have been blessed with more but I had to read it

three ways. .. .’’ A third letter made reference to ‘‘the

special powder”’ he had given the writer and that ‘‘ by using

the pocket book as you told me’’ the writer had been fi-

nancially blessed on this past Tuesday. He urged all that

‘‘needs a straight financial blessing’’ to meet him the fol-

lowing night. In a broadcast on May 11, 1969, it was again

represented that ‘‘many people have been able to pay off

their bills by reading the bible verses that he [Dowell]

gives them.’’ In an alleged testimonial it was stated ‘‘I

was blessed financially for $135 .. .’’ In his broadcast of

May 18, 1969 Reverend Dowell represented as follows:

Listen, I don’t care how far you’re behind. If you

make it your business to meet me tomorrow night

you’ll be able to catch up on this coming Tuesday be-

cause I declare to you I have a straight one way di-

rect message of deliverance from the Lord that is for

your immediate deliverance. Now in the event you

don’t know what direct means, you look in Webster’s

dictionary and Webster defines the word direct as be-

ing straight and that’s what I’m going to give you.

I’m going to give you one straight direct message and

I declare everything will be all right for you on this

coming Tuesday, not Wednesday or Thursday or one

day later on in the week but Tuesday evening when

the sun goes down everything will be all right for you.

Thereafter, an alleged testimonial was read which stated

as follows:

I just want to thank God for a man like you, because

you have really helped me out of the rut I was in. When

26d

I first came to see you I was in debt up to my neck

but thanks to you and the good Lord I am free at last.

I have been to see you three times and every time I

have received a straight financial blessing by using the

scriptures that you gave me. The first time I came to

see you, I was blessed for $135 for a quarter, and the

second time I came I received $540 for a $1.00 invest-

ment. And the last time I was there I really hit the

jacpot because I placed $10 where you told me to and

the Lora blessed me with over $5,000.

Another alleged testimonial writer stated that ‘‘After the

prayer I listened closely to what you were saying and when

you began talking about John being in Pasmos and you

looked away and saw him writing the Lord spoke to me

and something told me to use the word writing. . . . I looked

up the word writing and used it this past Tuesday accord-

ing to the three wise men who found Jesus and the whole

earth rejoiced. And I want to let you know that by using

the word writing I was able to rejoice because I used it for

fifty cents six ways and the Lord blessed me with $270.”’

The word writing appears in both the National Dream

Book and Policy Pete’s Book. ‘‘3 Wise Men”’ is another

numbers game publication. Another alleged testimonial

read on the program stated that ‘‘I did receive a small sum

of money the next evening because I was blessed with

$54.00 for a 10 cent investment.’’ Another letter stated

that ‘‘the special drawing root you gave me sure did a

powerful job’’ and Reverend Dowell commented ‘‘this is

the most powerful root that’s in this area.’’

37. On June 1, 1969 Reverend Dowell broadcast a pro-

gram in which he stated as follows:

Now I’m not trying to tell you that I’m the only one

but, amen, but you ought to try the spirit sometime and

see whether or not it comes from God. All these so

called Bishops and prophets and elders running in and

27d

running out of town and don’t have no church or noth-

ing no where, hiding behind hotel doors, talking about,

I go it, and just take your money and go back out of

town and you don’t see them no more for six months,

and really I think it’s a shame because we have a

church here, amen, and we are anchored here in your

city and we have roots here. And everything that we tell

you or I tell you individually you can always come back

and see me, amen, and I’ll do the very best that I can

for you. But, amen, these folks that are coming here

and promise you and promise you a Rolls-Royce and

you wind up with (about two words unintelligible) in

your hand. Therefore, I’m saying to you, just stop and

think for a minute. A few weeks ago, amen, someone

came here and I don’t know how much money they

carried out of town. They promised you and those of

you who are listening to me know who I’m talking

about, I’m not I don’t call no names, because I’m not

fighting nobody but you all know there ain’t nothing.

happened, amen, and they ain’t been heard from since.

38. Thereafter, Reverend Dowell represented that this

last Monday night he had given out an envelope at his

service which had inscribed on the back a verse taken from

the book of St. Luke, the 6th chapter, and the 38th verse

and that God opened up the avenues of life on Tuesday

and everyone who followed the special instructions were

blessed with money to pay their bills. Alleged testimonials

on the program referred to St. Luke 6:38 and that it was

a monetary blessing. One of these alleged testimonials was

as follows:

Dear Elder Dowell; Praise the Lord and thank God

for a wonderful man like you, because you have truly

helped me to come out of my financial difficulties by

reading the scriptures last week that you gave me on

28d

last Monday night. I know that everybody who saw

you was blessed last week because the envelopes that

you gave us in your special line had St. Luke 6:38

printed right on it so there is no excuse for anybody

to say it was your fault if they did not receive a bless-

ing. I am not much at writing but I want the whole

round world to know that I read this verse six ways

on Tuesday and I thank God that I was able to shout

the Victory Tuesday evening because St. Luke 6:38

brought me out and I know it was nothing but you and

the good Lord that did it. I don’t care what nobody

says but you are the best that ever came to the city

because I had been to so many pople and never received

anything but after one visit to you I receivd a financial

blessing the very next day.

39. The winning number in the numbers game on Tues-

day, May 27, 1969 was 863, one of the six different combi-

nations of 638, i.e., reading it six ways.

40. On June 15, 1969 Reverend Dowell stated the follow-

ing in his broadcast:

My God, if you come believing, I declare you’re going

to be receiving. The Lord spoke to my mind, amen, on

this past week, as I was coming back down in the hills

of Virginia, and I was like, amen, John the Revelator.

I looked, amen, off into the element, and I saw a num-

ber, and then I was like John and then I looked again

and I saw another number. And then the Lord spoke to

my mind amen and told me to give you one for Tues-

day and one for Thursday. So I’m saying to you once

again, dear hearts, if you want to be in this great num-

ber that the Lord revealed to me, then make it a must

in your life, put it on your agenda now, man, woman,

boy and girl, young, middle aged or old, wake up and

get up. And put this address down 1409 9th Street,

N.W. and meet me there tomorrow night and my God

29d

you’ll go away knowing that everything will be all

right for you.

41. An alleged testimonial on this broadcast claimed that

Reverend Dowell told her to read Psalm 37 and 6 and that

it was a straight financial blessing; another stated he was

blessed for $540; still another stated that ‘‘you told me to

read Psalm 37 and 6 and God knows I would not tell a lie

Reverend. It blessed me straight this past Tuesday.’’ (The

winning number on Tuesday, June 2, 1969, was 376.) Im-

mediately after reading these allegd testimonials, Rever-

end Dowell again stated that he saw two numbers in the

atmosphere, one for Tuesday, and one for Thursday. He

then ‘‘urged,’’ ‘‘beseeched,’’ and ‘‘implored’’ listeners to

come to him. Another alleged testimonial read on this

broadcast stated ‘‘T have also had three straight hits since

I came to see you and now I have so much money until I

don’t hardly know what to do with it.’? Reverend Dowell

immediately thereafter invited listeners to come to his

church so he could give them the message that the Lord

gave him as he was riding along in his automobile for this

Tuesday and one for this Thursday so they could be

brought out in a financial way. Virtually all the afore-

noted alleged testimonial letters stated contributions in

various amounts were enclosed.

Other Programs Offering Numbers Tips

42. Other religious programs were broadcast over Sta-

tion WOOK that, while they did not contain specific 3 digit

scripture references that coincided with winning numbers,

used language that would be construed as referring to

‘‘numbers”’ tips by listeners having familiarity with the

‘‘numbers’’ game. The tenor of these programs was similar

to the aforenoted programs. Programs falling into this

category were broadcast by Reverend J. W. Butler, Rev-

erend L. Cooper and Reverend Clyde W. F. Jefferson.

Reverend J. W. Butler®

43. On March 30, 1969 Reverend J. W. Butler broadcast

a program on WOOK in which he promised to ‘‘give Wash-

ington, D.C. one of the greatest financial blessings that has

ever come to the city of Washington.’’ He represented,

inter alia, that he blessed New York three days straight

and would do the same for Washington;* that he has

something that’s going to put food on your table and

clothes on your back; that what he was talking about was

not ‘‘something that’s going to show 2 or 3 weeks from now

but I say this very week while I’m in your city . . . that

he was going to give it out straight and it’s going to come

the same way that I give it out ...’’ that he was ‘‘only

giving you one thing .. . I’m going to give to you a straight

hit... . This Tuesday night I’m going to give it out in

Washington. ... I’m not going to tell you to put restric-

tions on it... but do what you want to with it... . You can

come out with $50,000.’ There was repeated use of the

word ‘‘straight’’ throughout the broadcast and Reverend

Butler informed listeners where they could see him.

Reverend L. Cooper

44. Reverend L. Cooper broadcast programs on Janu-

ary 12, 1969, May 4, 1969, May 25, 1969, and June 8, 1969.

Tn the January 12th program he asked for $10.00 donations

and he would send ‘tone of my white envelopes with a

special prayer to be put over the head of your bed and a

piece of green garment to carry around with you and my

Bible scriptures for this week.’’ This followed a statement

—

* The program was announced as being that of ‘‘ Bishop Butler’

at its opening and closing, though throughout the title ‘‘ Reverend”’

was used.

’

'°The entire program was devoted to his ability to give out

financial blessings for Washington, D.C. ‘‘for two days, Tuesday

and Wednesday of this week.’”’

31d

that ‘‘you will be blessed and blessed big like you never

been blessed before and the best part about it you will be

able to pay up your back bills.’’ Ms. Kathleen Gregory sent

$10.00 to Reverend Cooper and received in return a piece

of green cloth and 3 printed pages. One of the pages con-

sisted of, inter alia, 3 digit scripture references with the

following notation:

This material is to be used for your spiritual

strength only. It is not for any other purpose. It is

definitely not intended for any gambling purpose

whatsoever.

One reference was for ‘‘trouble,’’ one for ‘‘love’’ and one

titled ‘‘In need of God’s dirct blessings, spiritually and

financially.’’

45. In the May 4, 1969 program of Reverend Cooper, a

purported telephone conversation testimonial was broad-

cast stating, inter alia, ‘‘Yes, well, that’s why I gave you

Bible scriptures. You see the seriptures that I’ve chosen

from the Bible that’s why I like my followers to read the

scriptures that I have chosen from the Bible for them to

read. And God have blessed you financially, through my

Bible scriptures. He stated to another testimonial caller

‘*Yes, yes. The white envelope that you received you re-

ceived ... brought you from a mighty long way. Yes, you

were three months, your rent was three months in arrears.

The constable was already on you. Yes and you owed two

payments in arrears on your car. And you had other small

bills. And you took that white envelope with the piece of

green garment and the prayer and God has delivered you

and you paid up all your back bills.’’

46. In his broadcast of May 25, 1969, a purported tele-

phone testimonial credited the green cloth and scripture

references given in the white envelope with the return home

of a son and immediately thereafter they were blessed by

reading the Bible scriptures ‘‘two days in a rotation.’’ To

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another testimonial phone caller he stated: ‘‘.. . Yes, yes,

God bless you. Your mortgage were exactly three months

and two week in arrears and after you were in to see me

and received this white envelope and my Bible scripture

God blessed you before I left Washington, D. C.’’ Replying

in another telephone conversation he stated ‘‘ You wants to

send in a donation for the Temple. Well that is entirely up

to you. Some send ten, some send twenty, some send fifty,

some sends a hundred. God bless you. Yes, I’ll send one of

my white envelopes.’’ He thereafter stated that ‘‘this week

my white envelopes will be so straight until a foo] cannot

err.”’

47. In his June 8, 1969 broadcast, Reverend Cooper

stated he would send ‘‘one of my white envelopes, Bible

scriptures and a piece of green garment’’ to those who

wrote and that the writers would be delivered five hours

after receipt of th letter. ‘‘Yes you will be able to pay up

your back bills and meet your obligations five bours after

you receive this white envelope that I am mailing out this

week. It will be straight, I’m not going for no crooks and

turns. .. .’’ He solicited $10 donations ‘‘for the upkeep

of our program and the upkeep of our Temple, and I wiil

mail you one of my white envelopes and when you set down

and write me a letter and place your donation of $10 on the

inside, make sure you send a 30¢ stamp and 6¢ stamp... .’’

Reverend Clyde W. F. Jefferson

48. In a January 12, 1969 broadcast on Station WOOK

Reverend Clyde W. F. Jefferson invited listeners to attend

a mystical meeting on Tuesday ‘‘. . . because I have what

you’ve been praying for for Wednesday straight... .’’

Thereafter, he represented that:

Yes, I have what you’re praying for. And anyone

who have come to one of my meetings know that I

give it straight just like it is. My stuff hops out just

like the horse run, just like on a fast track. So you

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know that you can roll something up right away and

point it away from you. I say but you just come. I D-

double dare you doubting Thomases, you doubters,

you doubters did not come to my last two meetings and

wished you’d came and knowing what I gave and it

jumped right out the next day.

Following this at several points he continued the repre-

sentation that for those attending his Tuesday meeting

he nad a blessing for Wednesday ‘“‘. . . a sure straight

blessing.’’

49. In a broadcast on March 16, 1969, Reverend Jeffer-

son made the statements ‘‘God’s blessings are straight,

straight from the Bible;’’ ‘‘I know what’s coming for Mon-

day. If you want to get on the straight bandwagon because

a cow, a cow;’’ ‘‘also everyone wul receive one of my free

prayers with the special psalm blessing;’’ and ‘‘see me for

your special release for Monday and for Wednesday ;’’ ‘‘if

you want to get on the straight bandwagon;”’’ ‘‘everyone

will receive one of my free prayers with the special psalm

blessing;’’ ‘‘see me for your special release for Monday

and for Wednesday.’’ He further stated that ‘‘I will also

have the money drawing lucky handmade especially for

you ... thousands of happy users and ‘‘I know my roots

too. I say I know my roots too.”’

50. In a broadcast on April 27, 1969, Reverend Jeffer-

son’s talk included, inter alia, the following statements:

(a) Yes, you this coming week, can do yourself into

the figure—I say—if or a man’s size stake I cheerfully

admit I, I said, not that something is stacked against

you, I say that but for the track information it’s un-

beatable. It’s true, I have the answer for next week.

(b) Yes, God’s children at 1415 U Street, N.W. I

your Reverend Jefferson is waiting upon you. Yes, I

have the message just for you for this week. I’ve been

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praying for you. I say I don’t want you to put more

than you can afford on it. I said because the Big Boys

have spies. Hah, hah, hah, hah. This is for you, my

special precious few.

51. In a broadcast on June 8, 1969 Reverend Jefferson

represented that ‘‘Just as I gave two winners last week,

I’m going to give another one. I say yes I’m going to give

another one.’’ His talk, thereafter, included the following:

(a) I say results, results Washington, Maryland,

Virginia. I’ve got something awful good and it’s

straight so if you don’t come and get it, just blame

yourself. I say just blame yourself if you miss it this

week. Because I got it. You can pay your bills, enjoy

a new car, a home of your own, along with health,

happiness and success. Blessings, blessings, blessings

and more blessings... .

(b) Yes, many people received my special release on

last week, my special prayer. I say for Monday, for

Monday. I want you to have good, good presents before

the sun goes down Monday, and also Wednesday and

Thursday, don’t be left out. Because I have a message.

I have a message. I have a message for you, you and

you. For those in need. Quick action for those who

want some money right away. Help now, help now,

powerful secret money blessings. Do you really, really,

really, want a blessing? You better hurry today, today,

today because I’m giving it only to a limited number

of people.

Revenues Derived by Station WOOK from Religious

Broadcasts

52. Station WOOK did derive substantial revenues from

the broadcasts of religious programs during these periods.

The total for all paid religious broadcasts during the year

January 1, 1969 to December 31, 1969 was $89,478. The

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following is a breakdown of the 1969 revenues from eight of

the aforenoted ministers shown by the financial records

of Station WOOK:

Number of broadcasts

Minister January-June Total

July-December

Rev. J. Williams’ ........... 19 0 $2,280

Queen Mother Ruby Allen? .. 29 25 2,030

1 8 0 *68

Father P. H. Franklin ...... 15 17 3,200

and Bishop J. W. Butler‘ 0 12 °144

Rev. James Belk*® ........... 15 0 1,650

Rev. John Dowell ........... 40 34 11,040

Bishop Pryor ........ aeeeets 22 21 3,440

Rev. J. Fleming ............ 17 10 1,580

‘Reverend J. Williams is an associate of Reverend Bonner and

the amount set forth constitutes the amount reflected on the com-

pany’s books for Reverend Bonner. Accordingly, all or only a por-

tion of the total may reflect use of the facility by Reverend J. Wil-

liams himself.

? Queen Mother Ruby Allen was associated with or substituted

for Dr. M. L. Coleman. The figures are those which appear for

Dr. Coleman on the company’s books and also include entries under

Universal Triumph Church. Thus all or only a portion of the

amount shown for Queen Mother Ruby Allen may actually re-

flect broadcasts by Queen Mother Ruby Allen herself.

* This total is for 8 spot announcements at the rate of $8.50 each.

* Bishop Butler was associated with Dr. P. H. Franklin. The

amount shown for Dr. Franklin constitutes the totals for both

Dr. Franklin and Bishop Butler.

* This total is for 12 spot announcements for Bishop Butler at

the rate of $12 each.

®* Reverend Belk is an associate of Reverend Lofton and the en-

tries are those on the company’s books for Reverend Lofton. Thus

all or only a portion of the total shown for Reverend Belk may

have been used by him personally.

36d

Supervision Over Religious Programs and Revised Policy

53. Responsibility over the broadcasts of religious pro-

grams over Station WOOK during this period, as shown in

paragraph 8, swpra, rested primarily in the general man-

ager with the marketing and promotion manager having

direct responsibility for review of content. As is also noted

the owner Mr. Richard Eaton regularly reviewed with them

all phases of programming and particularly religious pro-

gramming with the marketing and promotion manager.

None questioned any of the ministers with respect to the

aforenoted claims of financial blessings other than for in-

quiry of Queen Mother Ruby Allen as to what her seven

day blessing plan was. Mr. Von Blasingame required Rev-

erend Cooper to cease his reference to his Blessed Hand

and cautioned Reverend Jefferson for his reference to a

money drawing lucky hand. The references to baths and

roots by Bishop Bonner, Reverend Thomas and Reverend

Jefferson were permitted by Mr. Von Blasingame after

consultation with Messrs. Eaton and Myers as they con-

cluded the references amounted to a means of bringing

worshippers closer to God and could not be interpreted as

attributing power to the roots themselves. All three pro-

fessed up to this point, a complete lack of knowledge of the

numbers game including its mode of operation, the odds

involved and the terminology used. All testified that they

had no concept of the aforenoted broadcast statements hav-

ing any relation to the numbers game until after the filing

by Community on June 23, 1969 of a petition to enlarge

issues alleging that these ministers were representing in

their broadcasts that they had given out winning numbers

in the past and listeners who came to see them or wrote

fhem could also obtain winning numbers for the future.

54. Though the reference to or announcements which

advertised articles such as roots and spiritual baths were

discouraged, they were not prohibited as above noted so

long as it was believed the articles were viewed by the

ministers as instruments of God rather than as inherently

37d

capable of working benefits. These were considered as hav-

ing the same functions and significance within the religious

doctrines of these ministers as those attached to the use of

such articles as holy water, rosaries, images, medals and

medallions under other doctrines and faiths. This concept

was adopted in the belief of it being consistent with the

provisions of the first amendment to the constitution of the

United States as they relate to the broadcast of these

programs. Station policy in this area, therefore, was to

discourage references to the articles such as roots and

spiritual baths noted in Issue 1, but to be guided by the

principle of non-censorship in cases where the cited article

appears to be a means of achieving closeness to God rather

than an end in itself where the references to it are a part

of the preacher’s gospel.

55. Following filing of the petition to enlarge issues on

June 23, 1969 by Community, by order released October

27, 1969, Issue 1 was modified to read as shown supra™

with the issues also being enlarged to include Issues 3 and

4. (See paragraph 1, supra.) The petition had attached as

Exhibits 1 and 3 letters from the Government of the District

of Columbia, Metropolitan Police Department, signed by

the Chief of Police outlining the operation ‘‘of the lottery

commonly known as the ‘numbers game’’’; giving the

names of cards or ‘‘tip sheets’’ giving the winning num-

bers from the first of the year; and offering to make a

member of the Gambling Section available to testify as an

expert if desired. On the day following the filing of this

petition Mr. Myers and counsel for United met with the

commanding officers of the Morals Division and of the

Gambling Section of the Metropolitan Police Department

and as a result of this meeting submitted a list of questions

“Issue 1 originally was as follows: To determine whether the

broadeast by Station WOOK of announcements which advertised

articles such as ‘‘conquer roots,’’ ‘‘money-drawing roots,’’ and

“‘spiritual baths,’’ constituted false, misleading or deceptive ad-

vertisements.

38d

designed to determine the knowledge of the Police Depart-

ment concerning these broadcasts and the position of the

Department with reference thereto. In response United was

informed that the Department had been aware of these

broadeasts over the past few years, that neither the sale

nor possession of the ‘‘tip sheets’’ referred to or giving

the winning numbers is a violation of District Law, that

it was not the intent of the Department or Chief of Police

to endorse the views of Community, and that the only way

the Gambling Section of the Metropolitan Police Depart-

ment would become involved in this matter would be to

furnish witnesses to testify as experts on gambling infor-

mation if summoned by the Federal Communications Com-

mission. A number of members of the Gambling Section

had heard these broadcasts and construed the three digit

scriptures cited as referring to numbers in the numbers

game. No action has been taken by the Metropolitan Police

Department against either the ministers involved or United

as a consequence of these broadcasts and none is contem-

plated. The broadcasts have been discussed by members of

the Department and the question of their legality apparent-

ly ‘‘batted back and forth’’ with no real conclusion being

reached.

56. Mr. Eaton also instructed Mr. Myers and Mr. Von

Blasingame to discuss these charges with the ministers

involved and Mr. Von Blasingame did discuss them with

each of the ministers then available. All denied the charges

and it was ultimately decided that it would be extremely

difficult to prove what had happened in the past. It was

concluded that, since management believed the duty of the

station was one of taking measures to protect its listening

audience, attention would be directed to taking measures

for future protection. Each of the ministers, accordingly,

was informed that the promises of financial blessings by

three digit Bible references to chapters and verses were

banned as to all future programs. It was further concluded

that the station has no responsibility as to what transpires

39d

at the religious services or as a consequence of contacts

either in person or by mail arising out of these broadcasts.

It was, therefore, decided that the fact that ministers were

known to mail scripture references in response to written

requests would not be grounds for dropping their broad-

casts since United ‘‘continues to believe that giving scrip-

ture lessons is a proper ministerial function.’’

07. Moreover, as to the past programs it remains the

conviction of the station management that, if in fact the

ministers were claiming success at numbers predictions,

their essential motivation was only indirectly related to

gambling, their essential motivation for claims of divine

assistance in the matter of monetary gain being to demon-

strate their ministerial power in the competitive arena of

evangelism. This past conduct, accordingly, was viewed not

as deceit but as puffing to increase the size of the minister’s

flock. In essence, it was concluded that in view of the sta-

tion’s belief that nothing illegal had been done, the best

course was to treat affected ministers in the manner of

advertisers making exaggerated claims for their merchan-

dise, i.e., to order those to stop in future.

Religious Programs Involving Numbers Game References

Broadcast Subsequent to Adoption of Revised Policy

58. Under this revised policy, on February 8, 1970 Rev-

erend Dowell broadcast a program in which he requested

listeners to send him a sacrificial offering of three, five or

ten dollars to help maintain the radio broadcast and for

the ‘‘upkeep of our building fund.’’ In return he promised

to send a message concerning which he stated at various

points the following:

(a) I have, amen, by the grace of God, a message of

importance that I want to convey to your mind and

dedicate in your being that will be your bridge over

high waters this coming Wednesday. Did you hear what

40d

I said radioland? I have a message that I want to send

you that is for your deliverance this coming Wednesday.

(b) All you have to do is put this number down,

amen, P. O. Box 2203 in the city of Washington, D.C.

and write me tonight. Don’t wait until tomorrow, amen,

because if I’ll have your letter in the morning, Tues-

day you’ll have your answer in your hand and Wednes-

day you’ll be able to do what you want to. My God, it’s

your thing all you got to do is do what you want to do

with it.

to, amen, upset the city. It’s going to be more powerful

than the hydrogen bomb. My God, because the hydrogen

bomb tears down but this is going to build you up. This

is going to build you up what you make in your pocket

book. This is going to put food in your ice box, amen,

and money deep down into your pocket.

(d) And God, promised me, amen, that everybody

that will write me tonight, and let me hear from you,

that Wednesday will be a day of victory in your life.

(e) Just write me and say, Reverend, I need help

and I want that message for Wednesday.

(f) This message, that I have for you is for this

Wednesday.

(g) Therefore, I say get your letter in the mail to-

night and you’ll have my answer back Tuesday, and

Wednesday, my God, will be a victory day in your life.

59. On February 9, 1970 Mr. Richard Denney sent Rev-

erend Dowell $3 and received in return a packet of incense,

a miniature key, a card and a mimeographed sheet. The

card contained, inter alia, the following: ‘‘Read & combine

with prayer. Psalm 90 Verse 6, Psalm 79, Verse 3.’’ The

mimeograph sheet contained, inter alia, the following:

41d

‘*Read Psalm 95:7; Psalm 60:4; Psalm 83:9.’’ The general

manager of Station WOOK testified that this program was

not a violation of the revised policy.

60. In a broadcast on February 1, 1970 Reverend Sam

McClure made reference to a ‘‘dream’’ in which he saw

“‘a great big train and it was loaded down with money .. .”’

and he saw the conductor who had something in his hand

and God told him to ‘‘tell every child of God that you come

in contact with, what you seen in the conductor’s hand.’’

At one point he stated ‘‘the money train that’s going to roll

into your city on Thursday’’ and at another ‘‘the money

train that’s going to pull out of your city no later than

Thursday.’’ He urged his listeners to write and send to his

Detroit, Michigan address a $5.00 donation and self-ad-

dressed stamped envelope if they wanted ‘‘to step on board

this money train no later than Thursday. If you want God

to stop by your station of life this week no later than

Thursday.’’ The broadcast was devoted almost exclusively

to appeals for donations from people ‘‘that needs some

money, that needs money in a hurry’? in return for ‘‘what

the conductor had in his hand’”’ which would ‘‘reap one of

the greatest harvests of his rich blessings that has ever

been bestowed on the city of Washington, D.C.”

‘61. On February 2, 1970 Mr. Richard Denney mailed an

air mail special delivery letter to Reverend Samuel Mc-

Clure with a $5.00 bill and a self-addressed stamped en-

velope. Mr. Denney received in return a letter which con-

tained the following:

God showed me a vision, and in this vision as I lay

there. I saw a long Train, and on the train there was

an old man, who was the conductor of the train and in

his hand he had a Key. He was looking out the window

at the big lake or river the train was crossing. God

told me through this dream or vision, it would be a

blessing to you. For your Bible lesson this week, may

it be uplifting to you mentally, spiritually, and above

42d

all that may be said, may it be the greatest financial

blessing of your entire life. Read I Kings 10:2-17 and

Isaiah 6:1, 7-13.

At the bottom thereof the following appeared: P.S. Pray

for Walter and David RAIN

62. The National Dream Book has the following numbers

corresponding to the words contained in Reverend Me-

Clure’s letter: Train 296; Keys 429; Walter 672; David

630; and Rain 680. Policy Pete’s Mutual Number Dream

Book has the following numbers for these words: Train

314; Keys 185; Walter 637; David 223; and Rain 535.

63. Thereafter Mr. Denney received from Reverend Me-

Clure the following solicitation :

If you have a desire to pay up all your Bills before

spring of the year sit in, I want you to read this letter

very very carefully, and then ask yourself this very

important question. How many times did you think you

were a (Winner) and only found yourself on the losing

end of the stick? That old Devil got busy (Stopped)

and blocked your way. Most of you know just how it

feels to be a loser. How would you like to be a (Win-

ner)? Now if your answer is yes, Rev. Sam I want to

be a winner, I am tired of coming close and missing

out. Blessings just pass you by and being on the losing

end all the time. Rev. Sam tells me just how I can help

myself. For I really really need some Money to pay up

my Bills. Now listen this is all you need to do just let

me send you (ONE THING TO PLAY THAT WILL

MAKE YOU A WINNER). This, that I send you, take

it to the Market Place and you will (Catch it) for

enough money to pay up all your bills. You can’t afford

to wait. DON’T DELAY, DO THIS NOW. If you want

to be a winner.

43d

Enclosed you will find a self-addressed envelope,

send $10.00 today and your blessing will be right at

hand on the next day after you receive my letter.

Mr. Denney sent a $10 bill and received in return a letter

from Reverend McClure giving the scripture references

‘*Kixodus 40:17, 18, and 21st verses Philippians 3:13, 14 and

19 verses’? and the postscript ‘‘P.S. Pray for Clyde and

Mary.’’ The National Dream Book shows number 541 for

Mary, Policy Pete’s Dream Book shows 824. Neither con-

tains a listing for Clyde.

64. Following receipt of the letter noted in paragraph 34,

supra, Mr. Denney began receiving letters from Reverend

Fleming. On or about June 9, 1969 he received one soliciting

him to join Reverend Fleming’s ‘‘ Five Week Success Plan”’

for a donation of $3 per week and ‘‘you will receive Rev.

Fleming’s special selection of Bible verses. .. . I guarantee

you that God will bless you through the Five Week Success

Plan with the money you need. If you work with the blessing

plan and follow instructions you can not lose... .’’ In

return for $3.00 which Mr. Denney sent, he received a

‘‘Prayer to Saint Lucy”’ at the bottom of which were the

handwritten words ‘‘baby, eyes.’’ In response to a similar

letter Mr. Denney received by letter dated January 15,

1970 a letter with the handwritten name ANN across the

bottom and by letter postmarked February 5, 1970 he re-

ceived another letter in which ‘‘love’’ was handwritten at .

the bottom. In the National Dream Book babies has number

601, eyes number 337, Ann number 378 and love 019.

United’s Position That Programs Were Legitimate Reli-

gious Expressions

65. United does not now question that the foregoing

ministers did in fact make reference to the numbers game

in the programs broadcast. It urges, however, that they

were legitimate religious expressions. Samuel Z. Klausner

director of the Center for Research on the Acts of Man ond

44d

Associate Professor of Sociology at the University of

Pennsylvania testified in support of this position. In his

view, in making numbers references, these ministers ‘‘con-

sider themselves as having some particular relationship to

a power beyond us and they provide the occasion for this

power to... speak through them.’’? They believe ‘‘that

somehow and perhaps in a miraculous way . . . they are

behaving at the dictates of this power beyond them and that

the numbers that they might write down will have some

particular value like fortune to them, so they are in a sense

representatives of this power.’’ That, like the Old Testa-

ment prophets, they do not themselves claim a power—here

to give a winning number—but rather believe that ‘*God

can speak through them.’’ He classifies the ministerial

functions of the Reverends Bonner, Williford and ‘Thomas

as primarily prophetic and ‘‘Typical of prophets, their

claim is not that they possess magical powers, but rather

that they enjoy special insight into the events of the world.

In this ease, the insight is related to the knowledge of

religious texts. The power that they interpret is conceived

to be a spiritual one acting in its own mysterious ways.”’

66. In such eases as the testimonial letters to Reverend

Dowell referring to such mathematically improbable events

as three straight hits from his scripture references, it is

his opinion that, if the letters are legitimate, the letter

writers are probably lying and ‘‘Reverend Dowell . . . is

flushed with the suecess and does not realize that the prob-

abilities are so low and really thinks God did it for him

this time.’’? In response to inquiry as to why worshippers

would write such testimonials, he responded ‘‘that would

be an interesting question to explore psychologically,’’ not

being at all limited to those seeking Reverend Dowell’s

blessing thereby or indeed even these churches. It is a

characteristic also for example of the Christian Science

Church, as illustrated by the letters of testimony as to

healing published in the Christian Science Monitor regu-

larly.

45d

67. Professor Klausner noted that the ancient practice of

using gambling within a religious context ‘‘usually emerges

at some point where there is a great deal of uncertainty

about the outcome of events and people would prefer to

place this outcome in the hands of God,’’ as exemplified by

various religions which have used the casting of lots to

determine social actions. It is his view that here this em-

phasis on lots in religious symbolism is exemplified in the

references of these ministers to luck and the number thirteen

as ‘‘Religion is one expressive form in which meaning is

given to situations of uncertainty. Thus, one finds the cast-

ing of lots in The Book of Esther.’’

68. If required to stop these appeals, he believes these

ministers ‘‘would go right on using something else’’ as they

generally are fundamental in the sense that ‘‘all religions

in order to gain social attention have to speak to matters

of concern in their current society.’’ And here, though ‘‘the

numbers business itself is not crucial to what they are

doing,’’ it is crucial to them in drawing an audience to

their programs. ‘‘If you have a community in which their

central anxieties are focused around economic problems .. .

the religious group speaks to these issues of anxiety,’’ so

these preachers speak to the poor of financial salvation.

In short, it is his view that the fact that numbers are in-

volved in no way detracts from the identification of these

sermons as religious expression. To the contrary, it is

typical as based on his visits to such churches ‘‘ You could

go in on a Sunday morning to any of a dozen storefront

or Pentecostal Negro churches and procure the same kind

of material. This reflects the current religious culture of

the lower income Black groups.’’ He states the role of the

minister is unaffected if he never in fact gives out a winning

number though every week he claims to have done so as

“the never predicts the number. He allows himself to be the

channel”? whereby they are divinely transmitted. Accord-

ingly, ‘‘empirieal validation in that sense would not be

necessary. We have many, many instances of religion deal-

46d

ing in real world events where they make statements about

future events and those events don’t come about and that

hardly shapes the faith of the communicants. Some of the

prime examples are in the apocalytic sects that will talk

about the end of the world.’’ It is his belief, however, that

in this case the success rate for the preacher is probably

in fact higher than mere odds would suggest because more

often than not the minister gives different scripture refer-

ences to different parishioners. For instance, where letters

were used with chapter and verse being given as shown

here ‘‘they provide each respondent with two three-digit

numbers, so that if .. . they get 500 people writing in they

are sure that in one of those cases they got a winner.’’ In

such a case, the divine blessing comes through the selection

by God not of the winning number but of the winning person

—i.e., ‘‘The intercession of the divine guidance would be the

selection of some particular individual with some particular

letter ...’’ i.e., ‘‘God will choose one of you.’’

69. Turning to particular ministerial references, Profes-

sor Klausner’s testimony as to Bishop Bonner’s advice to

parishioners that they come to his service even if they must

make false excuses to get out of work (paragraph 25, supra),

is that this in no way detracts from the religious legitimacy

of the broadcast. While on its face such a recommendation

is ‘‘deviant behavior”’ for which a minister might be faulted

by his colleagues, any impropriety which might otherwise

attach to such a ministerial statement can be excused on the

ground that Bishop Bonner, the person, as distinct from his

ministerial role, is fallible.

70. As to the efficacy of such articles as Money-Drawing

Incense, Conquer Roots and Spiritual Baths, referred to in

these broadcasts, his position is it cannot be understood or

analyzed meaningfully, in the context of everyday language.

He states ‘‘The religious and the secular use of language

should not be confused. It would be an error to interpret

religious statements as if they were intended to have the

47d

objective empirical reference that those words might have

in everyday language. Religious language is a poetic or

mythic form. While bound by the culture in which it occurs

to use everyday words, religion uses these words in a meta-

phoric sense to depict a supra-empirical reality. . . . Reli-

gious expression is neither false nor meaningless but an

attempt to express attitudes about the meaning of life that

escape the objective literalism of everyday referential

language. . . . The use of material objects as tokens for

these meanings, sometimes in association with prayers, has

a long tradition.’’ He gives as the Roman Catholic analogue

the healing baths of Lourdes. Similarly, the use of roots as

material religious symbols is prevalent in the religions of

the South Sea Islands, here again bound with the cultural

addenda relevant to the particular sect, as ‘‘money-drawing

root’’ or ‘‘conqueror root,’’ a symbol frequently encountered

in other Black churches ‘‘in this particular cultural setting”’

but not elsewhere. In short, the function of these objects is

essentially sacramental and the test applied by United, as

stated by Mr. Eaton, was that so long as the minister prom-

ises that the Lord will help, that the article is an instrument

of the Lord, it is no different than a rosary or other symbols

used in the various religions.

71. Professor Klausner concedes that the programs in-

volving the numbers game statements would have a tendency

to encourage listeners to play the numbers game in order

to receive benefits similar to those described by the letter

writers; that the numbers game is to the economic disad-

vantage of the participants to play it because of the odds

involved ; that the broadcasts insofar as they related to the

numbers game, were not part of the creed of the religion

that these ministers were preaching; and ‘‘that there are

definable and discernible deleterious social consequences to

gambling in general in society.’’ The claims by these minis-

ters to have given winning numbers in the past and the

ability to give successful tips for the future were, in his

experience, peculiar to the Station WOOK broadcasts.

48d

Issue 3 re Lottery Law

72. Issue 3 is directed to a determination whether broad-

cast of the aforenoted religious programs containing mate-

rial as to the numbers game was in violation of Section

1304 of Title 18 of the United States Code, the provisions

- of which are carried forward in Section 73.122 of the Com-

mission’s Rules. In FCC v. American Broadcasting Com-

pany, Inc. 347 U.S. 284 (1954) the Court noted that Section

1304 is one of five sections which constitutes Chapter 61

with Section 1302 prohibiting the mailing of lottery tickets

and related matter involving a lottery, gift enterprise, or

similar scheme. It ruled that for purposes of interpreting

the statute it should look to whether the postal lottery laws

preclude the mailing of advertising for the type of broad-

east program involved. Because of this ruling United called

as an expert witness on Section 1302 Mr. Saul Mindel who

was, prior to his retirement, from the Post Office Depart-

ment, in charge of the Mailability Division of the Office of

General Counsel as Assistant General Counsel.

73. In construing Section 1302 the Post Office Department

(now the United States Postal Service) considers the ban

on mailing of various kinds of material ‘‘concerning any

lottery’’ as constituting a prohibition on the mailing of any

information concerning the lottery regardless of the form

the communication takes. Lottery paraphernalia, statement

of odds paid after the event, predictions of winners, predic-

tions of odds and announcement of the winners are all con-

sidered mailable. If designed to promote a lottery mailing

of the names of persons holding winning tickets is prohibi-

ted as being within the prohibition on mailing of any list or

partial list of prizes awarded or drawn in a lottery. If inci-

dental to an otherwise newsworthy account in a news publi-

cation, however, it is mailable. The exclusion of odds on

upcoming events from the prohibition of Section 1302 is

based on the fact they are not prizes. The exclusion of para-

phernalia is based on the decision of the Supreme Court in

49d

United States v. Halseth 342 U.S. 277 in which it ruled that

punch cards in transit do not at that time relate to a

particular, existing lottery, no matter what the use to which

they will be put thereafter. Similarly, books on how to win

at gambling games are not banned for the same reason, i.e.,

they do not give information concerning a specific game or

lottery. Relevant to the instant proceeding, information as

to past winning numbers and the prediction of future win-

ning numbers such as contained in Sneaky Pete would be

mailable. Publications such as the aforenoted dream books

and Canary Bird as presently printed would be mailable as

paraphernalia since these publications do not relate to or

promote a particular existing lottery, but merely help an

individual to play the game. It is his opinion that the pro-

grams here involved would have been mailable, if it be

assumed they were offered as predictions of winning num-

bers or to supply tips for betting on the numbers. Also, the

mailing by Reverend Samuel McClure of the letters noted

in paragraphs 61 and 63, supra, and by Reverend J. Fleming

of the letters noted in paragraphs 34 and 64, supra, were

not in his opinion violations of Section 1302.

Issue 2 re False, Misleading or Deceptive Advertising

74. November 7, 1961 the Commission released Public

Notice FCC 61-1316 titled Licensee Responsibility With

Respect to the Broadcast of False, Misleading or Deceptive

Advertising. A copy of this notice together with the first

issue of a new Federal Trade Commission publication,

i Advertising Alert,’’ were forwarded to all broadcast sta-

tion licensees. Jnter alia, this notice stated the Commission

has ‘‘always held that a licensee’s duty to protect the public

from false, misleading or deceptive advertising is an im-

portant ingredient of his operation in the public interest”’

with the extent of this responsibility being as set forth in

its “‘Report and Statement of Policy re: Commission En

Banc Programming Inquiry dated July 29, 1960.’ Particular

attention was directed ‘‘to the fact that licensee responsi-

50d

bility is not limited merely to a review of the advertising

copy submitted for broadcast, but that the licensee has the

additional obligation to take reasonable steps to satisfy him-

self as to the reliability and reputation of every prospective

advertiser and as to his ability to fulfill promises made to

the public over the licensed facilities.’’ This public notice

was received and read by Mr. Eaton and discussed with the

station’s staff. Prior to receipt of this notice Station WOOK

had no written policies or procedures for the review of

advertising, Mr. Eaton making the final analysis as to suit-

ability and upon its receipt Mr. Eaton again carefully

analyzed ‘‘the advertisers we had.’’ This basically is one of

the things he still does from time to time with the station

manager and Mr. Clifton B. Holland, a staff member and

vice-president, having the responsibility for review of actual

advertising continuity. At the time of receipt of this notice

regular sales meetings were being held once a week or more

and it was regular procedure to bring anything of this

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