The authorization granted here is for a period of 6 months from the date of our action unless renewed by the Commission. FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary. DISSENTING STATEMENT OF CHAIRMAN HYDE IN WHICH COMMISSIONER Cox JOINS I dissent. I wish to stress that I am as interested as the majority in a test that will give us useful information in resolving the retransmission consent feature of our proposal in docket No. 18397. But the key consideration is clearly that the test must give some indication of supplying useful information. Otherwise, we cannot properly waive section 74.1107 (a). All this was made clear by the Commission in its January 17, 1969, order, F.C.C. 69-54, where we said (par. 4): ** It is not contemplated that waivers would be granted on any widescale basis, since this would be tantamount to operation under the proposed rules prior to completion of the requisite statutory procedures for amending the existing rules and a few test operations should suffice to provide the desired information and experience as to how the proposed retransmission consent requirement would actually work, or to show whether such information is obtainable on a test basis ***. The petition for waiver should show how the proposed operation would provide information and experience useful to a resolution of the rulemaking, why the particular locality is well-suited for this purpose, and how the proposal differs from other test operations which have been sought or authorized. The petition for waiver should also contain a showing that the CATV operator has retransmission consent of the originating station on a program by program basis. *** In other words, since the proposed retransmission consent requirement is intended to eliminate the unfair competition aspect, a so-called blanket "quit claim" authorization by the originating station (e.g., "authorization insofar as this station can give it") would not be sufficient, but rather there must be express retransmission authorization by the originating station of the program, programs, or series, as appropriate. The determinative factor in the grant of any waiver would be the Commission's assessment of the value of the proposed test to a determination of the issues in this proceeding rather than, for example, the filing date of the petition for waiver ***. The test which the majority authorizes today does not meet the above standard. Petitioners have received the retransmission consent to carry only a few programs locally produced by WLKY-TV and WHASTV. As to the other programs, petitioners were referred by the two stations to specific copyright owners. Petitioners have made no showing that they have approached these copyright owners. Thus, the Commission does not have before it any test proposal showing or giving any substantial indication that petitioners intend to eliminate the unfair competition aspect through arrangements made with the copyright owners and originating stations. If the proposed test is limited to the carriage of the few noted news, discussion, church, etc., programs produced by WHAS-TV and WLKY-TV (and of course made available without any charge), it will not supply useful information. It will not show whether CATV can obtain retransmission consent by entering the market; whether it will be unduly pre 1 Thus, on Monday through Friday, petitioner could carry only two half-hour news programs of WLKY-TV (the 5: 30 and 11:00 p.m. news); on Sunday, it could carry six or seven shows (e.g., "Pastor's Study," "Town & County Time," "Under Discussion"). cluded by existing contractual arrangements; what administrative or other difficulties it may encounter, etc. The majority, apparently recognizing this crucial defect, imposes the condition that petitioners must make good faith efforts to enter the market by seeking to make arrangements with copyright owners and submit 60-day reports to show such efforts and results. But this way of proceeding goes squarely against the January 17 prescription and the general standard for granting waivers-namely, that the petition for waiver should show an indication that in a test situation such as this, useful information will be forthcoming. This means that the petitioner, in its request for waiver, should have shown that it had approached the designated syndicators, and had obtained some consents. Upon such a showing, I could readily understand authorizing the waiver, with the right of petitioner to carry other programs for which it obtains future consent. Petitioner has not done that, nor has it made any such showing. Since the showing which petitioner has made goes only to a few station-produced local shows-and will clearly not adduce any information on the heart of the retransmission proposal, namely, the elimination of the unfair competition aspect by having the CATV system come within market forces-the majority's action is thus based solely upon unsubstantiated hope. It would make just as much sense for the majority to grant the first three or four oneline requests for waiver that come before the Commission, on the condition that the petitioning party will make a good faith effort to meet the test requirements and supply useful information. That is really what the majority has done. By not paying attention to requirements of section 74.1109, the January 17 order, and really commonsense, the majority not only acts contrary to the Commission's clearly enunciated policies in the area, but, I fear, may defeat its own goal. The way to obtain a meaningful test is to tell petitioners what is called for-a showing of consent to carry some significant number of programs as a result of arrangements with syndicators and the originating station-and to encourage petitioners by stating that upon such a showing, we will promptly authorize the test. I wish to make one final comment in line with my opening remark. While no showing has been made here to warrant the waiver, I strongly hope that the waiver will, in fact, turn out to be justified, and that petitioners will make good faith, reasonable efforts directed to the real thrust of our retransmission proposal. Both the Commission, in its opinions, and I, in press conferences, have stressed the desirability of obtaining as much useful information as possible, to assist us in resolution of the difficult and complex issues before us in this most important field. 18 F.C.C. 2d F.C.C. 69-891 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In Re Application of TV CABLE OF WAYNESBORO, INC., WAYNESBORO, PA. For Construction Permit Docket No. 18493 File No. BP-18234 MEMORANDUM OPINION AND ORDER (Adopted August 13, 1969) BY THE COMMISSION: 1. On March 21, 1969, we released a memorandum opinion and order, F.C.C. 69-238, 16 F.C.C. 2d 923, designating for hearing mutually exclusive applications for standard broadcast facilities at Greencastle and Waynesboro, Pa., filed respectively by Greencastle Broadcasting Co.1 and TV Cable of Waynesboro, Inc. Therein we also denied a petition to deny TV Cable's application filed by Metromedia, Inc. Now before the Commission for consideration is a petition by Metromedia filed on April 11, 1969, requesting rescission of the order denying its petition to deny, together with the pleadings responsive thereto.2 2. Metromedia, licensee of standard broadcast station WNEW at New York, N.Y., has been granted a construction permit authorizing the relocation of its transmitter site. In its petition to deny, Metromedia asserted that TV Cable's proposed operation would involve prohibited overlap under section 73.37 of the rules with the contours of WNEW from its newly authorized site. Metromedia relied on figure M-3 conductivity values to support its position. However, TV Cable submitted with its application field intensity measurements from WNEW's existing antenna site which indicated that there was no prohibited overlap. Since a move of only 5.5 miles is proposed and since both sites are located over 100 miles from Waynesboro, we found that signals emanating from either site would traverse essentially the same path toward Waynesboro and that the conductivity values from both sites are reasonably related. Relying on the signal strength measurements taken by TV Cable from WNEW's existing site, we concluded that a prohibited overlap of contours would not result from either site and denied Metromedia's petition to deny. 3. On the basis of an engineering statement containing signal strength measurements taken from WNEW's authorized transmitter site, Metromedia renews its contention that TV Cable's proposed op 1 Greencastle's application was dismissed on July 8, 1969 (F.C.C. 69M-848). The examiner retained TV Cable's application in hearing pending the disposition of the designated financial issues. The additional pleadings filed are as follows: (1) Comments on the petition filed May 8, 1969, by the Broadcast Bureau; (2) an opposition, filed May 8, 1969, by TV Cable; and (3) a reply, filed May 20, 1969, by Metromedia. eration will cause prohibited overlap with WNEW's operation from the new site. It maintains that the measurements disclose a considerable difference in ground conductivity between each of WNEW's sites and serve to substantiate the conductivity values indicated by FCC figure M-3 and the claimed overlap of contours in violation of section 73.37. 4. The Broadcast Bureau and TV Cable contend that the petition filed by Metromedia is in fact a petition for reconsideration of our designation order and is subject to dismissal for noncompliance with section 1.111 of the rules. It is further contended that Metromedia could have obtained and submitted measurements from the new site in support of its petition to deny, and that it was delinquent in not doing so. We do not deem it necessary to pass on these contentions. From our examination of the allegations of the petition, we are persuaded that, irrespective of any procedural deficiencies, action on our own motion is required in the public interest. 5. The signal strength measurements submitted by Metromedia were taken on a radial extending only 26 miles from WNEW's new transmitter site. Consequently, they do not establish the location of WNEW's contours from that site and are not conclusive on the question of overlap. Nevertheless the measurements are sufficient to raise a serious doubt concerning the validity of our earlier findings and present a substantial possibility of a prohibited overlap. If established, such an overlap is disqualifying and would require the denial of TV Cable's application. We cannot condone a station operation which would have an overlap of contours with another station in contravention of the rules. The public interest therefore requires that the question of prohibited overlap be resolved by an evidentiary hearing and we shall add the necessary and appropriate issue on our own motion. 6. Accordingly, It is ordered, That the petition for rescission, filed April 11, 1969, by Metromedia, Inc., Is dismissed as moot. 7. It is further ordered, That the issues Are enlarged on our own motion to include the following issue: To determine whether the contours of the proposed operation will overlap the contours of station WNEW, in contravention of the provisions of section 73.37 of our rules. 8. It is further ordered, That the burden of proceeding with the introduction of evidence and proof under the above-designated issue will be upon the applicant, TV Cable of Waynesboro, Inc. 9. It is further ordered, That Metromedia, Inc., is made a party to this proceeding. FEDERAL COMMUNICATIONS COMMISSION, 18 F.C.C. 2d F.C.C. 69-878 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In Re Application of WPIX, INC., NEW YORK, N.Y. For Renewal of License of Station WPIX, File No. BRCT-98 MEMORANDUM OPINION AND ORDER (Adopted August 13, 1969) BY THE COMMISSION: COMMISSIONERS COX AND JOHNSON CONCURRING IN THE RESULT. 1. The Commission has before it for consideration: (a) The abovecaptioned application of WPIX, Inc., for renewal of license of station WPIX, New York City; (b) the June 18, 1969, order of the Chief, Broadcast Bureau, setting aside his May 22, 1969, grant of the application; (c) a petition for review filed by the licensee on June 20, 1969, requesting that this order be rescinded or modified and that its effectiveness be stayed pending such action, and pleadings related thereto.1 2. WPIX, Inc., licensee of television station WPIX in New York City, filed an application for renewal of the station's license on February 28, 1969. The application was accepted for filing on March 25, 1969. On May 14, 1969, a group called Forum Communications, Inc. (hereafter Forum), filed a "Petition to Defer Action on WPIX-TV Renewal." The Commission denied this petition by memorandum opinion and order adopted May 21, 1969 (17 F.C.Č. 2d 959). The Chief, Broadcast Bureau, acting pursuant to delegated authority under section 0.281(a)(1) of the rules, granted the WPIX renewal application on May 22, 1969. 3. Subsequent to grant of the WPIX renewal application, the Broadcast Bureau undertook investigation of a complaint which raised questions concerning certain alleged practices of the licensee with respect to its broadcast of news events. Preliminary investigation indicated that substantial and material questions of fact, pertinent to the public interest judgment, appeared to be presented by the complaint. When it became evident that the investigation could not be completed prior to the date upon which the renewal grant would become final, the Chief, Broadcast Bureau, acting pursuant to section. 1.113 of the rules, set aside the grant by order dated June 18, 1969, causing the license renewal application to revert to pending status. 1 Forum Communications, Inc., filed an "Opposition to Application for Review" on June 25, 1969. The licensee responded to this pleading on July 9, 1969. |