F.C.C. 73--537 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In Re Complaint of ACCURACY IN MEDIA, INC. against NATIONAL BROADCASTING Co., INC. ORDER (Adopted May 16, 1973; Released May 21, 1973) BY THE COMMISSION: COMMISSIONER ROBERT E. LEE CONCURRING AND PART AND DISSENTING IN PART AND ISSUING A STATEMENT IN WHICH 1. The Commission has before it an Application for Review filed on March 6, 1973 by Accuracy in Media, Inc. of the ruling of the Broadcast Bureau of February 27, 1973. 2. We have examined the pleadings herein and believe that the Bureau's ruling was correct. Accordingly, pursuant to Section 1.115 (g) of the Commission's Rules and Regulations, the Application for Review IS DENIED. FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary. CONCURRING STATEMENT OF COMMISSIONER ROBERT E. LEE Today, I concurred with my colleagues, with the understanding that the Commission will expeditiously review, and hopefully revise, the fairness doctrine criteria that now must be met by all interested parties. Such revisions should be designed with the objective of easing the "burdens" of all parties involved in a fairness doctrine controversy. STATEMENT OF COMMISSIONER JOHNSON CONCURRING IN PART AND DISSENTING IN PART IN WHICH COMMISSIONER HOOKS JOINS While I concur in the disposition of this case, I disagree with the majority finding that complainants have not presented a controversial issue of public importance. 41 F.C.C. 2d F.C.C. 73-553 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION In the Matter of WASHINGTON, D.C. 20554 AMERICAN TRUCKING ASSOCIATION, INC.. vs. AMERICAN TELEPHONE & TELEGRAPH Co., Docket No. 19746 MEMORANDUM OPINION AND ORDER (Adopted May 23, 1973; Released May 29, 1973) BY THE COMMISSION: COMMISSIONERS JOHNSON AND REID CONCURRING IN THE RESULT. 1. The Commission has before it an amended formal complaint filed by the American Trucking Association, Inc. (ATA) on September 1, 1972 questioning the lawfulness of provisions in American Telephone and Telegraph Company's (AT&T) Private Line Service Tariff (Tariff F.C.C. No. 260) which allows a particular customer-Aeronautical Radio, Inc. (ARINC)-to order private line service on behalf of itself and air transport carriers. The National Association of Motor Bus Owners (NAMBO) filed a statement in support of ATA's complaint on September 16, 1972 and AT&T answered the amended complaint on October 16, 1972. 2. Section 2.2.1 of AT&T's 260 generally requires that the interstate private line services provided by the telephone companies to persons ordering such services shall be used "for the transmission of communications to or from the customer and relating directly to the customer's business" (our emphasis) and Section 2.2.3 of the same tariff prohibits the "re-sale" of such services or the use thereof to handle communications "for others." However, certain exceptions to these particular requirements are spelled out in the tariff. One of these exceptions is expressed in subsection (G) of Section 2.2.1 which specifically permits private line services to be used: "For the transmission of communications to, from, within and between air carriers, where the customer is an aeronautical communications company licensed under the Aviation Services rules of the Commission to operate stations in the aeronautical mobile and fixed services." It is this particular subsection (and related tariff provisions) to which the complaint is addressed because ARINC is the only entity that fits this exemption and complainant contends that the results are that air carriers are given certain preferences and privileges that are denied to 1 ARINC is a Delaware stock corporation operated to provide communications facilities for the conduct of air carrier and other aircraft operations under by-laws that provide for operation on a non-profit basis. motor truck and other carriers of passengers and property (i.e. buses and railroads) that compete with the air carriers. 3. It is true that subsection (G) of Section 2.2.1 of AT&T's private line service tariffs has the effect of extending to ARINC and the airlines favorable treatment that is denied to other transportation carriers. There are at least six manifestations of such preferential treatment. First, subsection (G) permits ARINC to obtain private line services from the telephone companies for use by itself or by the individual airlines or groups of airlines without complying with the usual tariff requirement (2.2.1 (A)) that all such services must be used to transmit communications to or from ARINC itself. (Our emphasis.) For example, ARINC, under this exemption, may order private line services between points on a single airline or between points on different airlines or between points on different airlines or between points on any airline and points off of any airline (e.g., government agencies, airframe manufacturers, etc.), without such private line facilities being used to handle communications to or from ARINC. 4. Second, subsection (G) permits ARINC to obtain private line services for itself or the airlines, without complying with the usual tariff requirement (See 2.2.1 (A)) that all communications over such services must relate directly to ARINC's business. Thus, communications handled over any private line facilities that may be ordered by ARINC, no matter where such facilities may be located, may be used to handle communications that relate to any business, without any tariff limitation whatsoever on the nature of the business so handled over such facilities. 5. Third, subsection (G), in conjunction with language in Section 2.2.3 of the tariff, permits ARINC to obtain private line services for itself and the airlines without complying with a general prohibition in the tariff that such services shall not be used for any purpose for which a payment or other compensation shall be received by either the customer or any authorized or joint user. Thus, either ARINC or the airlines may, as far as AT&T's tariff is concerned, receive payment or other compensation in any amounts whatsoever from any entity with respect to any use of such private line facilities. 6. Fourth, subsection (G), in conjunction with language in Section 2.2.3, permits ARINC to avoid compliance with another usual tariff requirement that private line services may not be used in the collection, transmission or delivery of any communications for others. Thus, so far as the tariff is concerned, ARINC and the airlines are free to use these private line services to handle communications of any persons without limitation and, as heretofore indicated, to receive any compensation or payment therefor. 7. Fifth, subsection (G), in conjunction with a proviso in Section 2.5, permits ARINC to be a customer of the telephone company for private line facilities used by ARINC for itself or for the airlines without complying with another usual tariff requirement that no one may be a customer for a private line service who does not have a communications requirement of his own for its use. Under this exemption, ARINC may be a customer of AT&T to order any and all private line facilities for the airlines irrespective of whether ARINC itself has any need or use for such facilities. |