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MEMORANDUM OPINION AND ORDER
(Adopted June 2, 1969) BY THE REVIEW BOARD:
1. The above-captioned mutually exclusive applications for a new FM station at Atlantic City, N.J., were designated for consolidated hearing by Commission Order, F.C.C. 68–1219, 15 F.C.C. 2d 767, released January 6, 1969.
2. On April 9, 1969, Salt-Tee Radio, Inc. (Salt-Tee), filed the instant petition to enlarge. The petitioner alleges that counsel for Salt-Tee received a letter dated March 7, 1969, from counsel for Lester H. Allen (Allen), concerning negotiations looking toward settlement of the case. That letter, attached to the petition as exhibit 1, bears the notation that copies were sent to Lester H. Allen and to R. H. Palmquist. The petitioner alleges that Palmquist was not identified in any manner in the Allen application, and states that he undertook an investigation to ascertain the relationship of Palmquist to the Allen application. Petitioner learned that Palmquist is president of an organization called Tape Networks, Inc. Exhibit 2, attached to the petition, appears to be a sales brochure distributed by Tape Networks, Inc. Salt-Tee notes that at page 6, appendix 2, of the brochure, Tape Networks purports to have prepared an application for an FM station located in Atlantic City, N.J. Petitioner concludes that since there are only two applications for an FM station in Atlantic City now pending, the reference must be to Allen's application. Salt-Tee also points out that the brochure outlines a number of relationships between Tape Networks, Inc., described in the brochure as franchisor, and the FM station. Moreover, Salt-Tee notes that there is no reference in Allen's application to any contract with Tape Networks or to any of the services which it purports to perform for its clients. Counsel for petitioners argues that in view of these circumstances, the following issue should be added to the proceeding :
To determine the nature and extent of undisclosed agreements of Lester H. Allen with Tape Networks, Inc., and the extent to which they bear upon the absolute or comparative qualifications of Allen to receive a grant of his application.
1 The Board also has before it oppositions filed by Lester H. Allen on May 5, 1969, and the Broadcast Bureau, May 6, 1969.
18 F.C.C. 2d
3. In opposition, Allen points out that on page 2 of section 1 of his application, Richard H. Palmquist is listed as a consultant who assisted in the preparation of certain exhibits. Moreover, Allen, by affidavit, states that Palmquist was retained and paid a specific fee for the limited purpose of assisting with certain surveys and exhibits, and that Allen has no contract arrangements with Palmquist, Tape Networks, Inc., or any other individual or organization concerning the operation of the proposed FM station. Palmquist, by affidavit, corroborates Allen's statement.
4. The Review Board agrees with the Broadcast Bureau that the allegations set forth by the petitioner fall far short of the specific affidavits required by section 1.229 of the Commission's rules. Moreover, Allen's and Palmquist's uncontroverted affidavits, which clarify Palmquist's relationship with the applicant and deny the existence of any undisclosed agreement concerning the operation of the proposed station are sufficient to dispel any doubts raised by the petitioner. In these circumstances, the petition must be denied.
5. Accordingly, It is ordered, That the petition to enlarge issues, filed April 9, 1969, by Salt-Tee Radio, Inc., 18 denied.
FEDERAL COMMUNICATIONS COMMISSION,
BEN F. WAPLE, Secretary. 18 F.C.C. 2d
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
In re Applications of
MEMORANDUM OPINION AND ORDER
(Adopted May 28, 1969) BY THE COMMISSION: COMMISSIONER BARTLEY ABSENT; COMMISSIONER
JOHNSON DISSENTING. 1. The Commission has before it: (1) A pleading entitled "Petition for Clarification and/or for Commission Review of Action Taken Pursuant to Delegated Authority,” filed on behalf of Wometco Enterprises, and Wometco Skyway Broadcasting Co., Inc. (hereinafter "Wometco"), licensee of WTÝJ, Miami, and WLOS-TV, Asheville, N.C.,' and (2) the above-captioned renewal applications for the California stations owned and operated by the American Broadcasting Cos., Inc.
2. The Commission has previously designated the renewal applications of stations WTVJ and WLOS-TV for hearing on issues of alleged anticompetitive conduct raised by a petition to deny filed by Ant win Theatres, Inc., in November 1966. At the time of that action, however, the Commission declined to act on Antwin's request for the early call-up and designation for hearing of the American Broadcasting Cos.' owned and operated television stations throughout the country. In a letter addressed to the Commission on October 7, 1968, Wometco said:
The purpose of the instant letter is to bring to the Commission's attention the fact that the applications for renewal of license for station KGO, KGOFU, KGO-TV, KABC, KABC-FM, and KABC-TV (all licensed to the American
1 Wometco is also the parent of KVOS Television Corp., licensee of station KVOS-TV, Billingham, Wash.
Broadcasting Co., Inc.) were filed with the Commission on September 3, 1968 and are now pending before the Commission. In view of the Commission's previous holdings in its May 31, 1968, designation order in docket No. 18185 and 18186 it is anticipated that the Commission will shortly be designating these renewal applications for hearing. Wometco's position was that the Commission is required to designate for hearing pending applications for renewal of license of stations licensed to American Broadcasting Cos., Inc., because of the language in the Commission's memorandum opinion and order of March 31, 1968 (11 F.C.C. 2d 643). The language referred to reads: "We shall not, however, "call up' in advance the renewals of the license for station KVOS-TV, Bellingham, Wash., or the licenses for the stations owned or controlled by the American Broadcasting Co., Inc., as requested by Antwin in the Wometco proceeding. Consideration of such renewals should properly await their filing in due course.”
3. In its letter of October 31, 1968, Wometco repeated its position that it was the Duty of the Commission, this time, in light of Melody Music, Inc. v. FCC, 121 U.S. App. D.C. 241, 345 F. 2d 730, to determine the validity of the charges made in Antwin's original petition, that is to designate those applications for hearing. Presumably, although such is not explicitly stated by Wometco, such designation was to be on the Commission's own motion, since there admittedly was no formal petition or pleading then before the Commission which suggested or required such action. Antwin, the original petitioner, had notified the Commission in October 1968, that it had amicably resolved and had voluntarily dismissed its civil antitrust action against ABC and that it was withdrawing that portion of its 1966 petition that pertained to ABC.
4. On February 14, 1969, a letter to Wometro stated the Broadcast Bureau's position on Wometco's informal request for action. That letter said, in part:
You correctly state that Antwin, in its letter of October 18, 1968, withdrew its 1966 petition to deny insofar as it related to the stations licensed to the American Broadcasting Company, Inc. We have recently been advised that Antwin has settled its anti-trust action against ABC.
We do not accept your view that it is mandatory that the Commission designate these renewals for hearing. The Antwin claims, as far as they apply to ABC, are now moot and we have no formal pleadings pending from any party in interest.
5. We wish to make it clear and we hereby hold that our statement concerning the ABC renewals in our memorandum opinion and order of March 31, 1968, quoted above did not represent a firm or inflexible commitment on the part of the Commission to designate for hearing ABC renewal applications, radio, television, or both, for hearing in futuro, The settlement of the Antwin-ABC civil antitrust action and Antwin's subsequent withdrawal of its petition against ABC materially altered the situation. We see no need to designate those reniewals for hearing at this time as urged by Wometco. We think the Bureau's letter to Womerco of February 14, 1969, correctly sets out the Commission's position, and we hereby ratify that letter with this addition : It is not our intention at this time, acting on our own motion, to take the action Wometco urges. Wometco has not demonstrated the