(Adopted June 13, 1973; Released June 20, 1973) BY THE COMMISSION: CHAIRMAN BURCH CONCURRING IN THE RESULT. COMMISSIONER JOHNSON DISSENTING. COMMISSIONER H. REX ABSENT. 1. The Commission has before it (a) the above application; (b) a petition to deny filed by Western Maryland Broadcasting Co., Inc. (hereinafter referred to as WFRB or petitioner), licensee of stations WFRB (AM) and WFRB-FM, Frostburg, Maryland, and (c) pleadings in opposition and reply. 2. The petitioner claims that Four Star Broadcasters, Inc. (Four Star), will provide a primary signal over Frostburg with the proposed facility. Since the proposed station would compete for audiences and advertising revenues with stations WFRB (AM) and WFRB-FM, we find that the petitioner has standing as a party in interest within the meaning of section 309 (d) of the Communications Act of 1934, as amended, and section 1.580 (i) of the Commission's rules. FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 9 RR 2008 (1940). 3. WFRB alleges that the grant of Four Star's FM application would cause a regional concentration of control of broadcasting which is inconsistent with the public interest, convenience and necessity, because six aural broadcast facilities located in a limited area of West Virginia and Maryland would be owned by the same parties. As noted by the petitioner, the three stockholders of Four Star also own Potomac Broadcasting Co., Inc., licensee of station WKLP (AM), Keyser, West Virginia. These three stockholders, Thomas B. Butscher, Kenneth E. Robertson, and Gary L. Daniels, also collectively own in excess of 66 percent of Berkeley Springs Radio Station Corp., licensee of stations WCST(AM) and WCST-FM. Berkeley Springs, West Virginia, and more than 77 percent of Oakland Radio Station Corp., licensee of stations WMSG (AM) and WMSG-FM, Oakland, Maryland. The petitioner contends that the three communities in which the five stations owned by the principals of Four Star are located fall roughly in a straight line running southwest to northeast over a distance of about 65 miles from Oakland, Maryland, to Berkeley Springs, West Virginia, the latter community being located in West Virginia's eastern panhandle. WFRB also points out that stations WMSG (AM) and WMSG-FM are the only broadcast stations assigned to Oakland, Maryland, and Garrett County, Maryland; that station WKLP is the only broadcast station assigned to Keyser, West Virginia, and Mineral County, West Virginia; that stations WCST (AM) and WCST-FM are the only broadcast stations assigned to Berkeley Springs, West Virginia, and Morgan County, West Virginia; and that the 0.5 mV/m contour of station WKLP overlaps with the 0.5 mV/m contours of stations WCST and WMSG. The petitioner further states that the separation between the primary signal area of Four Star's proposed FM station and that of station WMSG-FM is not significant, that Four Star's proposed 1.0 mV/m contour is tangent with the 1.0 mV/m contour of station WCST-FM, and that Four Star has proposed to utilize less than the maximum facilities permitted under the rules for a class B operation. These two latter considerations are directed at the issue of whether Four Star proposes an efficient utilization of the FM frequency allocated to Keyser as well as the concentration of control issue. Lastly, the petitioner alleges that the common supervision and management of the five existing stations referred to above will be furthered by the proposed FM station in Keyser and will increase the "program dominance" and economic dominance of stations owned by Four Star's principals. To support these allegations, WFRB outlines the similar percentages of certain types of programming broadcast on the existing stations and notes that station WKLP in Keyser has notified the Commission that it will occasionally rebroadcast programs from its sister stations in Oakland, Maryland, and Berkeley Springs, West Virginia. In this respect, we observe that Four Star plans to duplicate the programming of station WKLP during the daylight hours. As to the allegation of economic dominance, WFRB asserts that the existing stations owned by Four Star's principals offer joint rates to advertisers, thus placing them at a considerable economic advantage in their markets. WFRB has submitted a rate card to verify the availability of these joint rates and cites Brown Broadcasting, Inc., 3 FCC 2d 887, 8 RR 2d 55 (Rev. Bd., 1966) for the principle that the presence of joint rates is sufficient in itself to raise a hearing issue as to whether an undue concentration of control of broadcasting exists. 4. In response to the allegation concerning economic dominance, Four Star has filed an affidavit from its secretary-treasurer, Gary L. Daniels, in which he states that the practice of offering joint or combined rates in connection with the operation of the stations in Oakland, Keyser, and Berkeley Springs, was discontinued on July 1, 1972. and that Four Star does not propose use of combined rates in connection with the Keyser FM facility. Four Star concludes, therefore, that the Review Board's decision in Brown, supra, does not apply to Four Star's situation. We agree. Moreover, Four Star asserts that the proposed FM station in Keyser will provide a first local nighttime broadcast service to Keyser and that a grant of its application would therefore be in the public interest. In support of its argument that a grant of its FM proposal would not result in an undue concentration of control, Four Star states that we delineated the criteria for determining the existence of concentration of control over media of mass communications in Lee Enterprises, Inc., 18 FCC 2d 684, 16 RR 2d 904 (1969). These criteria include, inter alia: ... the relevant market or area (local, regional and/or national), numbers and types of competing media, and population served and degree of control of particular media in the applicant's hands. Four Star correctly indicates our concern with whether a particular applicant has the potential to dominate the discussion of issues of public importance in a given community. Four Star believes that when this standard is applied to the community of Keyser and to Four Star, it is apparent that no concentration of control will occur. Specifically, Four Star observes that the communities of Keyser, Berkeley Springs and Oakland are small,1 separate and distinct communities which are relatively isolated from each other due to mountainous terrain. Four Star claims that WFRB's reliance upon the air distances between these communities does not give proper consideration to the mountainous terrain which effectively isolates these communities to a greater degree than mere air distances would imply, and places each community in its own "pocket" between mountains. In regard to service provided to the three communities involved. Four Star notes that each of its stations has its own news department which writes, edits and broadcasts its own local news, while rebroadcasting regional news and sports. This practice allows the different stations to upgrade their news coverage without detracting from the autonomy of each station's news department in the area of local reporting. In response to the allegation of "program dominance" which the petitioner contends results from the similar music formats of stations in the three communities involved, Four Star states that since the stations are the only local broadcast outlets, each station has been programmed to serve the widest possible range of opinions and tastes in each community. The fact that the musical tastes of the people in these communities is similar is not surprising and we note that each station broadcasts at least four different types of music programming. Even more significant in regard to the allegation of "program dominance" is the fact that there are a large number of other media available in Keyser, Berkeley Springs, and Oakland. 5. Four Star has made an extensive showing of the other media which are available to the residents of the communities of Keyser, Berkeley Springs and Oakland. Cable television systems serve each community, supplying at least nine television signals and 25 FM signals to the residents of Keyser; six commercial television signals and 20 FM signals to the residents of Oakland, Maryland; and nine television signals to the residents of Berkeley Springs, West Virginia. In addition, each community has its own newspaper. Two newspapers are published in Keyser, a daily with a circulation of 5,829 and a weekly with a circula 1 The 1970 populations of Keyser and Berkeley Springs, West Virginia, and Oakland, Maryland, are 6,586, 1,138, and 1,786, respectively. tion of 1,151. A weekly newspaper with a circulation of 8,460 is published in Oakland, while a weekly newspaper having a circulation of 3,800 is published in Berkeley Springs. Further, newspapers published in Cumberland, Maryland, have subscribers in the counties in which the three communities are situated. Moreover, Four Star has filed an engineering study which indicates that a considerable number of broadcast signals from stations in which Four Star's principals have no interest are available "off the air" in the three communities. We also note that the principals of Four Star have no ownership interests in the CATV systems and newspapers which provide the other means of mass communications in the three communities. In light of the distinct and isolated character of the three communities involved, the essentially separate programming provided to each community by its existing radio stations, and the existence of several other forms of mass media in the areas involved, we find that no material and substantial question of fact is raised with respect to whether the grant of Four Star's FM application would result in an undue regional concentration of control. Thus, no hearing issue in this regard is warranted. 6. Four Star proposes to operate the class B FM facility allocated to Keyser with an effective radiated power of 6 kW and an antenna height above average terrain (HAAT) of 785 feet. Operating in this manner, there would be no overlap between the 1 mV/m contours of the Keyser station and that of commonly owned station WCST-FM, Berkeley Springs, West Virginia, which is a class A facility operating with an effective radiated power of 3 kW and antenna HAAT of 70 feet. However, if the proposed station were to utilize the maximum permissible power of 17 kW along with an antenna height of 785 feet, or if WCST-FM were to operate with maximum class A facilities, such overlap would occur, in violation of the duopoly provision of our multiple-ownership rules [section 73.240 (a) (1)]. In response to a staff inquiry concerning the efficient utilization of the class B frequency involved, Four Star asserts that its proposal would result in an efficient utilization of this frequency since it will provide a first local nighttime broadcast service to Keyser, a 1 mV/m FM service to 132,860 persons in an area of 2,348 square miles, service to an FM unserved area of over 170 square miles and a population of more than 2,000 ́people, and a second or "gray area" FM service to an area of over 225 square miles encompassing more than 4,500 people. 7. In addition, Four Star relates the history of its attempts to establish the first FM station and the first local nighttime broadcast service in Keyser. It claims that nobody applied for channel 240A, which 2 Other services 0.5 mV/m (AM). WMSG (AM and FM) WKLP (AM and FM) WCST (AM and FM) Keyser, W. Va. Berkeley Springs, was allocated to Keyser in 1963, until March 1970, when Four Star filed an application for that channel. Since Four Star did not meet our spacing requirements with respect to an existing station, it requested a waiver of section 73.207 of our rules. The waiver was denied, but we gave Four Star 30 days to locate a new transmitter site which would meet our spacing requirements. Four Star was evidently unable to discover such a site, and its application for channel 240A was dismissed on December 4, 1970. On June 26, 1971, Four Star filed a Petition for Rule Making in which it asked us to assign channel 231, an allocation requiring class B facilities, to Keyser. The petition was unopposed. We found that channel 240A should be deleted from Keyser since "it did not lend itself to being utilized for effective public service" and we assigned channel 231 to Keyser on June 21, 1972. In our Report and Order in Docket No. 19401, RM-1756, we stated the following: Keyser is in genuine need of this assignment, comparatively and absolutely, and making it clearly would further the public interest. Therefore, we will make the requested assignment, and we expect Four Star to promptly proceed to apply for its use, proposing facilities capable of fulfilling its potential for area-wide service. We note that Four Star applied for the very facilities which it used as examples in the rule-making proceeding for predicting areas and populations which could be served by a class B facility licensed to serve Keyser. Furthermore, Four Star has submitted an engineering statement which indicates that if its proposed FM facility at Keyser were to utilize maximum facilities, it would serve 163,950 persons over an area of 3,505 square miles, which represents an increase over its current proposal of only 31,090 persons located over an area of 1,157 square miles, which is about 26.9 persons per square mile. Similarly, if station WCST-FM, Berkeley Springs, were to use maximum facilities, it would be serving a gain area in which the population per square mile would be about 26.3 persons. In short, if both stations were to use maximum facilities, their gain areas would consist of rural areas with relatively sparse populations. Moreover, Four Star's engineering statement indicates that high mountains in the range from five to seven miles from station WCST-FM's transmitter site would effectively limit the 1 mV/m contour at these distances regardless of the antenna height used. Thus, the effective radiated power and antenna HAAT of station WCST-FM and of Four Star's proposed FM station at Keyser appear to be realistic and appropriate for the service areas involved and the need of the people in the general area surrounding Keyser for a first nighttime service. 8. Therefore, in view of the peculiar geography of the area to be served, the sparse population of the areas beyond Four Star's proposed 1 mV/m contour which might be served if Four Star were to use maximum facilities, and the fact that Four Star proposes to construct the first FM facility in Keyser, West Virginia, which would provide the first local nighttime service to Keyser and its environs, we find that Four Star's engineering proposal constitutes an efficient utilization of the frequency allocated to Keyser. |