old 25-mile provision of section 73.203, and finally, that no grounds exist for waiver of either of these provisions. 4. As invoked in this case, section 1.525 permits the filing of applications for the same community. At the heart of the matter before us is the meaning to be given this phrase. Valley would have us interpret the rule as it relates to FM to mean any city, town, or other indentifiable entity within the permitted radius from the locality to which the channel is assigned. P.A.L., on the other hand, insists that the only possible meaning is the same political entity and that Valley's proposal for a station 32 miles from Berwick can hardly be said to have the same engineering characteristics, community, and service area as called for by section 1.525. 5. Although the precise point in question has not been raised before, reference to the rule, its purposes and its legislative history make it clear that it does not have the meaning attributed to it by Valley. The rule (originally sec. 1.316) was adopted by the Commission by report and order of August 1, 1961 (F.C.C. 61-1021, 20 R.R. 1673) and that document repeatedly used language indicating that community means a particular locality. Thus: "***apply for the same facilities ***" "succeed to the facilities sought to be withdrawn ***" "protecting the broadcast needs of particular communities***" and most directly, the new rule was said to call for an "*** opportunity for the filing of a substitute application for the same principal city"-20 R.R. 1673, 1676. The rule itself limits the special opportunity-to-file procedure to situations in which the dismissing applicant is the only one which sought the particular facilities for one of the communities involved, a phrase which would have no meaning if Valley's theory were correct. The rule is intended to protect the interests of such a community in the context of a 307 (b) comparison. Not only does Valley not seek the same community (Berwick), its proposal would not even provide 1 mv./m. (much less 3.16 mv./m.) service to Berwick. No valid purpose would be served by countenancing the disruption which would be occasioned by accepting Valley's argument. The area would suffer a serious delay in the institution of service without any concomitant benefits to Berwick. Under these circumstances Valley's application could only be accepted if waiver of section 1.525 were warranted, but Valley has provided no showing to justify such waiver. 6. Valley's application is also unacceptable on another ground. Had Valley specified Berwick it would have been entitled to utilize the old 25-mile provision of section 73.203, for without that, the paramount concern expressed in section 307 (b) of the act and section 1.525 of the rules would be nullified. It does not follow, however, that it can capitalize on this fact to argue that this tolerable deviation entitles Valley to obtain a far more serious deviation from applicable standards, in this case those specified in section 1.525. In sum, Valley's application fails to meet the standards for filing pursuant to the special 307(b) procedures and is intolerably late for consideration on any other basis. Accordingly, the relief requested by Valley must be denied. 7. It is ordered, That Valley Broadcasting Co.'s request for waiver Is denied and its application Is returned as unacceptable for filing. 8. It is further ordered, That the P.A.L. Broadcasters, Inc., petition to reject application for filing Is granted. FEDERAL COMMUNICATIONS COMMISSION, F.C.C. 69-711 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the Matter of the Application of THE WESTERN UNION TELEGRAPH CO. For Authorization and Approval of the Acquisition of Teletypewriter Exchange Service Properties, Facilities and Operations ORDER (Adopted June 25, 1969) Docket No. 18519 File No. T-C-2228 BY THE COMMISSION: COMMISSIONERS BARTLEY AND WADSWORTH ABSENT. 1. The Commission has under consideration a motion to enlarge issues filed on May 5, 1969, by Data Automation Communications, Inc., Data Automation Co., Inc., and Carterfone Communications Corp. (hereinafter referred to as Movants) in the above-referenced proceeding. Also considered are oppositions filed by the Bell System respondents on May 15, 1969, and by the Western Union Telegraph Co. on May 19, 1969, and replies filed by Movants to each opposition on May 21, 1969, and May 23, 1969, respectively. 2. Movants refer to the requirements of section 222 (c) of the Communications Act of 1934, as amended, that the Commission determine whether the proposed acquisition is in the public interest and, in so determining, to give due consideration among other things to the financial condition of the carrier involved. Movants contend that the phrases "public interest" and "among other things" are sufficiently broad to include: (a) Whether or not the regulatory tariffs under which the Western Union Co. intends to operate such consolidated services are lawful, reasonable and nondiscriminatory under sections 201 and 202 of the Communications Act; (b) Whether the provision of equipment to subscribing customers of such consolidated service can be reserved exclusively to the Western Union Co. without others, including these petitioners, having a right to compete in the furnishing of such equipment and related services; and 1 Movants actually filed a petition to intervene and motion to enlarge issues. Such a combined filing, requiring action by the hearing examiner as to the petition and by the Commission or Review Board as to the motion, is contrary to the provisions of sec. 1.44 (b) of the Commission's rules and regulations. In order not to unduly delay consideration of the motion to enlarge issues by requiring a separate refiling, we hereby waive application of sec. 1.44 (b). The petition to intervene was granted by the Telegraph Committee by order of June 9, 1969. Also, a motion to enlarge issues is required by sec. 1.229 (b) of the rules to be filed within 15 days after publication of the issues in the Federal Register (Apr. 15, 1969) and the present motion is thus technically late. Movants originally filed their pleading on Apr. 25, 1969-within the 15-day period-but as the certificate of service was not filed until May 5, 1969, the earlier date could not be considered as the official filing date. In the interest of expedition, we also waive application of sec. 1.229 (b) to this motion. Waiver of the rules herein is not to imply that we condone failure to comply with the applicable provisions or that other waivers may be expected. (c) Whether, in general, the proposed acquisition is contrary to the policies of the Congress and the decisions of this Commission, such that the proposed acquisition does not result in making “* * * available, so far as possible, to all the people of the United States a rapid, efficient, nationwide, and worldwide wire and radio communications service with adequate facilities at reasonable charges ***" under section 151 of the Communications Act. 3. To the extent that the Commission may decide that the public interest provision of section 222 does not encompass a determination of the above suggested issues, Movants request enlargement of the issues in this proceeding to include such issues. 4. The first concern expressed by Movants is that if acquisition is consummated Western Union will operate TWX service under tariffs. similar to present Western Union tariffs (tariff F.C.C. No. 240) which are applicable to Western Union's Telex service and that at such time as TWX and Telex services may become fully integrated, the combined service would be operated under tariffs comparable to Western Union Tariff F.C.C. No. 240. On this assumption, Movants argue that the tariffs under which the combined services would be offered by Western Union violate the principles of the Commission's Carterfone decision (13 F.C.C. 2d 420 (1968); see also 14 F.C.C. 2d 571 (1968)) and the antitrust laws of the United States. 5. The second basic concern expressed by Movants is that certain contractual provisions in the TWX purchase agreements are anticompetitive, as is the proposed acquisition itself. In this connection, Movants object to the contract provisions whereby Western Union agrees to adopt the Bell System TWX service tariffs as a condition of purchase; object on anticompetitive grounds to the provisions allowing Western Union to purchase components necessary for TWX equipment maintenance from the Bell System at cost; and question the lawfulness and propriety of the TWX patent agreement. Such questions as these, regarding possible effects of the acquisition on competition, are clearly within the scope of the issues already specified by the Commission in its order F.C.C. 69-647. 6. The third additional issue that Movants request is a broad, all-inclusive question concerning compliance of the proposed acquisition with policies of Congress and decisions of the Commission and concerning its effect on nationwide and worldwide communications. 7. The Commission has considered the motion to enlarge issues and is of the view that the motion should be denied. The first issue requested by the motion relates to the tariff provisions under which the TWX service will be operated by Western Union if the application is authorized. In this respect, the motion itself is inconsistent. The motion first assumes that the present Western Union Telex tariff will apply, and based on that assumption, objects to certain specific provisions of such tariff which differ from the present A.T. & T. TWX tariff. Yet in their motion, Movants also raise objection to the provision in the contracts whereby Western Union agrees to adopt the A.T. & T. TWX tariff as a condition of purchase. Since we agree that the latter is clearly contemplated by the contracts, there is no basis for the additional issue requested in this respect. The tariff provisions which will apply will remain the same whether or not the acquisition is approved and therefore consideration of the issue requested would be irrelevant. Movants have adequate remedies under the Communications Act if they wish to question the lawfulness of either the TWX or Telex tariffs. We will, of course, entertain an appropriate pleading at any time to consider as a separate matter the lawfulness under sections 201 (b) and 202 (a) of the act of any tariff provisions. It should be noted, however, that in evaluating the impact of the acquisition, we will consider any terms or provisions of the tariffs involved if such is necessary to determine the public interest. 8. The other objections presented by Movants and outlined above are also within the scope of the specified issues designated for hearing by order F.C.C. 69-647 and therefore need not be added with particularity. 9. By denying the motion to enlarge issues the Commission has not ruled out the possibility that if approval and authorization for the acquisition are granted, it may be subject to specified conditions. In the order identifying specific issues herein, we raised the question as to what conditions, if any, should be placed on the acquisition if approved. It should be emphasized that if any of the points of concern to Movants are determined to be important and relevant to the transfer, such points will be evaluated and resolved in our decision herein. 10. Accordingly, It is ordered, That the motion to enlarge issues filed by Data Automation Communications, Inc., Data Automation Co., Inc., and Carterfone Communications Corp. in the docket No. 18519 proceeding Is hereby denied. FEDERAL COMMUNICATIONS COMMISSION, 18 F.C.C. 2d U.S. GOVERNMENT PRINTING OFFICE: 1969 F.C.C. 69-759 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION In the Matter of WASHINGTON, D.C. 20554 ADOPTION OF FCC FORM P ON WHICH TO BY THE COMMISSION: REPORT AND ORDER (Adopted July 9, 1969) Docket No. 18473 1. On February 28, 1969, the Commission issued its notice of proposed rulemaking in the above-entitled proceeding which was duly published in the Federal Register (34 F.R. 3852). In that notice it was proposed to adopt F.C.C. form P and to amend part 1, section 1.785; part 21, section 21.300; and part 43, section 43.21, of the Commission's rules to require licensees in the Domestic Public Point-toPoint Microwave Radio Service who are miscellaneous common carriers to file on that form an annual report. 2. Comments were filed by Western Microwave, Inc., on behalf of itself and its subsidiary carriers (Western); 20 miscellaneous carriers (20 carriers); Microwave Transmission Corp. (MTC); Frank K. Spain doing business as Microwave Service Co. and Alabama Microwave, Inc. (Spain); and Eastern Microwave, Inc. (Eastern). 3. MTC concurred with the Commission that the information requested by this form was needed by the Commission to properly perform its regulatory functions and that the filing of this form would not be an undue burden or hardship on the miscellaneous common carriers. The 20 carriers were opposed to the form, stating that the Commission is acting beyond its authority in this matter and that completing this form is an undue burden. Western, Eastern, and Spain supported adoption of the proposed report form, but raised certain specific objections to some parts of the form, chief among which were: The 20 carriers are Andrews Tower Rentals, Inc., Columbia Television Co., Inc., DalWorth Microwave, Inc., Dorate, Inc., East Texas Transmission Co., Electronics, Inc., Hi-Desert Microwave, Inc., KHC Microwave Corp., Laredo Microwave, Inc., Midwest Microwave, Inc., Minnesota Microwave, Inc., New England Microwave Corp., Pilot Butte Transmission Co., Southwest Texas Transmission Co., Teleplex Microwave Systems, Inc., Teleprompter Transmission of Kansas, Inc., Teleprompter Transmission of New Mexico, Inc., Teleprompter Transmission of Oregon, Inc., United Video, Inc., and Wentronics, Inc. 18 F.C.C. 2d |