BEFORE THE F.C.C. 69-585 FEDERAL COMMUNICATIONS COMMISSION In re WASHINGTON, D.C. 20554 REQUEST FOR ISSUANCE OF A CEASE AND DE- ORDER TO SHOW CAUSE (Adopted May 28, 1969) Docket No. 18557 BY THE COMMISSION: COMMISSIONERS HYDE, CHAIRMAN; AND BARTLEY ABSENT. 1. Irvine Community Television, Inc., operates a 5-channel CATV system providing the signals of the following stations to approximately 600 subscribers at Irvine, Ky., WCPO-TV (CBS), WLW-T (NBC), Cincinnati; WSIR-TV (CBS), Knoxville; WKYT-TV (CBS), WLEX-TV (NBC), Lexington. Irvine is within the predicted grade A contours of television broadcast stations WKLE (educational) and WBLG-TV (ABC) and within the predicted grade B contours of stations WLEX-TV and WKYT-TV, all Lexington, Ky. 2. Irvine Community first requested waiver of the program exclusivity requirement on June 16, 1966. The Commission denied this request in Irvine Community Television, Inc., F.C.C. 67-247, 7 F.C.C. 2d 106, but subsequently amended its order to permit Irvine Community until October 24, 1967, to obtain switching equipment which it could use to comply with the program exclusivity requirement. On October 23, 1967, Irvine Community, citing new information which it alleged had recently come to its attention, renewed its request for waiver of the program exclusivity requirement. This request has been opposed by Kentucky Central Television, licensee of station WKYTTV, and WLEX-TV, Inc., licensee of station WLEX-TV, both Lexington, and Irvine has replied. In addition, Kentucky Central Television has requested that Irvine be directed to cease and desist from further violations of the program exclusivity requirement. Irvine has opposed this request. 3. In support of its present waiver request, Irvine Community argues: (a) That neither station WLEX-TV nor station WKYT-TV provide a grade B or better signal to Irvine; (b) that Irvine Community also serves Ravenna, Ky., where it competes directly with Ravenna TV Co-op, a cooperatively owned system serving approximately 200 subscribers, which does not provide program exclusivity to the Lexington stations. Irvine Community argues that the Commission's denial of its earlier waiver request was discriminatory since Ravenna TV is not under the same obligations to provide program exclusivity; (c) that petitioner is denied due process of law if the program exclusivity requirement is enforced prior to an evidentiary hearing on the merits of the waiver request. 4. We rule on Irvine's arguments as follows: (a) Any television station placing a predicted grade B or better contour over the community served by a CATV system is entitled to program exclusivity against lower priority stations whether or not it actually provides a grade B or better signal to the community. E.g., Shen-Heights TV Association, F.C.C. 68-168, 11 F.C.C. 2d 814; (b) for the reasons explained in Public Notice, F.C.C. 68-259, the Commission has deferred action on proceedings involving CATV systems serving less than 500 subscribers. As Ravenna TV Co-op serves only about 200 subscribers, we have not acted to require its compliance with the program exclusivity_rule. This fact does not justify continued violation of the rules by Irvine which serves more subscribers and has greater channel capacity. We also observe that it is most remarkable for a CATV system serving a town of only 3,000 not to be aware of a competing system serving the same town; (c) section 74.1109 (f) makes provision for evidentiary hearing; however, petitioner's threshold showing does not persuade us that a hearing is necessary on the section 74.1103 issue. E.g., Wheeling Antenna Company, Inc. v. Federal Communications Commission, 391 F.C.C. 2d 179. Further, as explained below, we are ordering a hearing pursuant to section 312 of the Communications Act of 1934, as amended. 5. In view of the foregoing, the Commission finds that a grant of the requested waiver of the program exclusivity requirement of section 74.1103(a) of the Commission's rules would not be consistent with the public interest. In these circumstances we normally would not issue the requested order to show cause. However, in light of the protracted controversy between these parties, we believe such an order is appropriate here. We note that the hearing may be avoided by Irvine Community Television, Inc., reporting its compliance with this order to the hearing examiner when one is designated. 6. The public interest requires that the hearing process be conducted as expeditiously as possible. The examiner is so directed and shall issue his initial decision as promptly as possible after the conclusion of the hearing. Further, pursuant to section 0.365 of the rules, any review of the initial decision shall be by the Commission rather than the Review Board. Accordingly, It is ordered, That the petition for special relief filed October 23, 1967, by Irvine Community Television Is denied. It is further ordered, That pursuant to sections 312 (b) and (c), and 409 (a), of the Communications Act of 1934, as amended, 47 U.S.C. 312 (b) and (c), and 409 (a), Irvine Community Television, Inc., Is directed, to show cause why it should not be ordered to cease and desist from further violation of section 74.1103 (e) of the Commission's rules and regulations of its CATV system at Irvine, Ky. It is further ordered, That Irvine Community Television, Inc., Is directed, to appear and give evidence with respect to the matters described above at a hearing to be held at Washington, D.C. at a time and place before an examiner, to be specified by subsequent order, unless the hearing is waived, in which event a written statement may be submitted. It is further ordered, That Kentucky Central Television, Inc.; WLEX-TV, Inc.; and Chief, Broadcast Bureau Are made, parties to this proceeding. It is further ordered, That the examiner shall conduct the hearing expeditiously and issue an initial decision as promptly as possible, in accordance with paragraph 6, above. It is further ordered, That the Secretary of the Commission shall send copies of this order by certified mail, to Irvine Community Television, Inc. FEDERAL COMMUNICATIONS COMMISSION, 18 F.C.C. 2d BEFORE THE F.C.C. 69–603 · FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In re Applications of: J. R. KARBAN (W82AH), RHINELANDER, WIS. For Modification of License KARBAN TELEVISION SYSTEM, INC., WIN- KARBAN TELEVISION SYSTEM, INC., PARK KARBAN TELEVISION SYSTEM, INC., PARK For Construction Permits for New VHF File No. BRTT-272 File No. BMLTT-42 File No. BPTTV3359 File No. BPTTV3383 File No. BPTTV3384 MEMORANDUM OPINION AND ORDER (Adopted May 28, 1969) BY THE COMMISSION: COMMISSIONER BARTLEY ABSENT. 1. The Commission has before it for consideration the above-captioned applications of J. R. Karban for renewal of the licenses of television broadcast translator station W73AD, W71AC, W76AB, W80AC, W78AE, and W82AH, all Rhinelander, Wis.; the abovecaptioned application of J. R. Karban for modification of the license of station W82AH to change primary station; and the above-captioned applications of Karban Television System, Inc., for construction permits for new VHF television broadcast translator stations to serve Winchester, Wis. (BPTTV-3359), by rebroadcasting station WSAUTV, channel 7, Wausau, Wis. (CBS), on output channel 2; to serve Park Falls, Wis., by rebroadcasting station WSAU-TV on output channel 4 (PBTTV-3383); and to serve Park Falls, Wis., by rebroadcasting station WAOW-TV, channel 9, Wausau, Wis. (ABC), on output channel 9 (BPTTV-3384). The Commission also has before it for consideration à petition to deny, filed May 27, 1968, by Northland Television, Inc., licensee of station WAEO-TV, channel 12, Rhinelander, Wis. (NBC), against the above-captioned applications for renewal; informal objections, filed December 12, 1968, by Midwest On Oct. 28, 1968, Northland withdrew its objections to grant of all of the renewal applications except BRTT-273 (W71AC, rebroadcasting station WFRV-TV, Green Bay, Wis.). Video Electronics, Inc., operator of a CATV system in Rhinelander, pursuant to section 1.587 of the Commission's rules, and various pleadings filed in connection therewith.2 On May 27, 1968, a petition to deny was filed by Northern Telecable, Inc., operator of a CATV system in Park Falls, Wis., against the applications of Karban Television System, Inc. (BPTTV-3383 and BPTTV-3384) for construction permits for new translator stations; Northland Television's petition to deny, filed May 27, 1968, against the renewal applications was also filed against these applications; on July 27, 1968, informal objections were filed by KDAL, Inc., licensee of station KDAL-TV, channel 3, Duluth, Minn., against BPTTV-3383 on the grounds that operation of the translator as proposed on output channel 4 would cause adjacent channel interference to reception of KDAL's signals; on August 1, 1968, Midwest Radio-Television, Inc., licensee of station WCCO-TV, channel 4, Minneapolis, Minn., filed informal objections against the same application on the grounds that the proposed operation would cause cochannel interference to direct reception of station WCCO-TV's signals in Park Falls; on July 30, 1968, informal objections were filed by Northwest Publications, Inc., licensee of station WDSM-TV, channel 6, Superior, Wis., against BPTTV-3384 on the grounds that operation of the translator as proposed on output channel 5 would cause adjacent channel interference to direct reception of station WDSMTV's signals in Park Falls. On May 21, 1969, Northland filed a petition to deny Karban's application (BMLTT-42) for authority to carry station WEAU-TV's signals on station W82AH. Karban has not had an opportunity to respond to this petition. 2. The Winchester application. The application (BPTTV-3359) for a construction permit for a new translator to serve Winchester, Wis., is unopposed and is not affected by the petitions to deny and informal objections except to the extent that certain matters raised in the petition to deny the renewal applications apply to the applicant generally. For the reasons set forth herein, we will grant this application in accordance with specifications to be issued. 3. The Park Falls applications.-Park Falls is within the predicted grade B contour of station WAEO-TV, channel 12, Rhinelander, Wis. (NBC), but is not within the service contour of any other television broadcast station. Each of the objectors (KDAL, WCCO-TV, and WDSM-TV), have submitted engineering statements and reports of interviews with persons in the Park Falls area which demonstrate that their respective signals are regularly used in the area although the area is outside their predicted grade B contours. The applicant has not submitted an engineering study nor otherwise refuted these allegations. Section 74.703 (a) of the Commission's rules provides that an application for a translator station will not be granted where it is 2 Karban filed an answer to Midwest Video's objections on Jan. 13, 1969; on Jan. 8, 1969, Northland (WAEO-TV) filed a supplement to its petition to deny. 3 Karban filed an opposition to the various objections on Nov. 7, 1968; a reply to the opposition was filed Nov. 13, 1968, by Northern Telecable and a supplement to the petition to deny was filed Nov. 19, 1968, by Northern Telecable. Replies to the opposition were also filed by the attorneys for KDAL and by Midwest Radio-Television (WCCO-TV). On Nov. 17. 1968, an airplane struck the tower of station WAEO-TV and demolished the facilities. The station has authority to remain silent until Aug. 20, 1969. |