6. It is further ordered, That the application of Trend Broadcasting, Inc., Shall be retained for a period of 30 days to permit appropriate amendment and that action on the application of Christian Fellowship Mission, Inc., Shall be withheld during this period. FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary. 18 F.C.C. 2d F.C.C. 69-788 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In Re Application of TRI-COUNTY BROADCASTING CORP., CLEMSON, Requests: 1560 kc., 1 kw., 500 w. (CH), MEMORANDUM OPINION AND ORDER (Adopted July 15, 1969) BY THE COMMISSION: COMMISSIONER COX ABSTAINING FROM VOTING; COMMISSIONER WADSWORTH ABSENT. 1. The Commission has before it for consideration (a) a petition for reconsideration, as amended, filed by Blue Ridge Broadcasting Co., Inc. (hereinafter WSNW), licensee of stations WSNW and WBFM (FM), Seneca, Ga., on April 29, 1969, and directed against the Commission's action of April 2, 1969 (memorandum opinion and order, F.C.C. 69-321, 17 F.C.C. 2d 180, released Apr. 8, 1969), denying WSNW's petition to deny the above-captioned application and granting said application; and (b) pleadings in opposition and reply thereto. 2. The petitioner asserts as its first ground for reconsideration, that the Commission's finding concerning the inadequacy of its advertising and total retail sales data is invalid. As we observed in our previous order in this regard, specific data and information on these points was called for in Missouri-Illinois Broadcasting Co., F.C.C. 64-748, 3 R.R. 2d 232 (1964), as illustrations of the type of information necessary to support a Carroll issue, and the petitioner provided no data or estimate as to the total advertising revenue potential and no figures for retail sales. In the instant petition WSNW states that more than 90 percent of its advertising revenue comes from advertisers in Seneca and eight other towns or villages within 12 miles of Seneca, lists these towns and their populations, and alleges that these statistics are a clear indication of the revenue potential of those places. Thus, once again, WSNW has failed to supply the requisite threshold information. 3. In paragraph 7 of our previous opinion we found, inter alia: As to advertisers, who would shift or split their advertising to the proposed station, the petitioner (WSNW) merely states that hopefully very few would shift and that the larger ones would probably split their advertising. Petitioner attempts to cure this deficiency by arguing that realization of less than half of the applicant's estimated first year revenue would pull WSNW's own gross revenue below its $100,000 survival mark. Regarding this contention we find (i) that it cannot be assumed that a new station will divert advertising revenue from an existing station; and (ii) assuming the validity of the argument, the fact remains that it is not responsive to the question. 4. Finally, the petitioner describes as incorrect our finding that *** assuming, arguendo, that WSNW would be hurt financially by the advent of another local AM service in the Clemson-Seneca area, petitioner has nonetheless failed to explain how a grant of the TriCounty application would be detrimental to the public interest **** As we noted in our previous order, although the petitioner reported the number of public service announcements it had carried, and stated that a loss of revenue would affect overall operations and their public service announcements, it did not indicate how many of these would be cut, curtailed or shifted, or, in fact, how its total program format or public service performance would be changed or affected as a result of the competition of a new station in the area, all of which was expressly required in Missouri-Illinois, supra. 5. Although in the Folkways case 2 the Court of Appeals stated that the Carroll issue 66* * * may not be limited to a case in which preknowledge of the exact economics of the situation is necessarily available***, this does not relieve the petitioner of its obligation to fully respond in regard to the type of information and data referred to above, including advertising revenue potential and sales figures, which it has totally failed to provide. Likewise, although under the Folkways case a licensee is not required to speculate as to particular programs which would be cut or curtailed, in this case the petitioner has fallen far short of the "reasonable judgment *** supported in its reasonableness by a strong showing ***" which the Folkways case does require, when it blandly observes that the predicted loss of revenue *** will affect its overall operations and, certainly, its public service programs," but provides no explanation or specific allegation of facts to support its conclusion. 6. In an amendment to its petition for reconsideration, WSNW refers to statements in its original petition regarding a previous application filed by Tri-County which WSNW now describes as a strike application. WSNW also refers to questions it had attempted to raise with respect to Tri-County's financial qualifications. Petitioner now contends, for the first time, that the facts which it had alleged as to these two matters, if true, pose questions as to the applicant's character qualifications which should be resolved in a hearing. 7. As Tri-County has explained in regard to the alleged strike application, the application originally requested 1,540 kc., thought to be the best frequency available for the area at that time. However, the applicant later entered into a dropout agreement with a competing 1 Commission studies, in fact, indicate that under the impetus of additional competition. existing operations often increase their revenue. (Voice of Middlebury, 3 F.C.C. 2d 512, 7 R.R. 2d 345 (1966)). 2 Folkways Broadcasting Co., Inc. v. FCC, 375 F. 2d 299, 8 R.R. 2d 3089 (1967). applicant, Pick Radio Co., and then filed for the present frequency, 1,560 kc. Subsequently, the Commission approved the dropout agreement under section 1.525 of the rules. To this date we have nothing before us to indicate that the 1,540 kc. application was filed for the purpose of impeding a grant of the Pick Radio proposal other than petitioner's unsupported allegation. Similarly, petitioner's bare allegation regarding Tri-County's financial showing fails to persuade us that our original finding was incorrect. In brief, WSNW has continued to plead conclusions without supporting them with specific allegations of fact. 8. Regarding Tri-County's financial showing, as we indicated in our original order WSNW questioned the adequacy of the personal resources of the two stockholders, Robert E. Liverance and N. Matthew Phillips, and also made some observations which, according to the petitioner, affect Phillips' financial statement and matters relating to it. WSNW claimed, inter alia, (i) that the application failed to reflect a tax indebtedness of Phillips of $335; (ii) the boat, motor and trailer owned by Phillips were not listed with the County Auditor's office as required by law for tax purposes; (iii) the house and lot valued at $4,900 were not listed in Phillips' name on the tax rolls of Anderson or Oconne County; (iv) a lot was valued at $950 although Phillips had paid only $365 for it approximately 6 months earlier; (v) according to the Anderson County (South Carolina) courthouse records, there was an unpaid judgment against Phillips in the amount of $42. 9. In response to these allegations Tri-County (i) stated that it did not have a tax indebtedness and filed a letter from the Anderson County Tax Collector confirming this; (ii) explained that the boat, motor, and trailer were timely registered with the South Carolina Wildlife Resources Department, which automatically makes a return to the county auditor's office for assessment at the end of the following year, and verified this with a tax letter from the Anderson County Auditor, which also stated that there was not and never had been any tax delinquency as to this property; (iii) explained that the lot and house in question had been subsequently sold for $4,000, as reflected in its revised financial statement of April 4, 1966 (Tri-County also attached a statement of its savings and loan association certifying a savings account in the amount of $5,519.21 as of December 28, 1966, to substantiate this); (iv) stated that the lot which was valued at $950 was purchased in 1962 rather than 1965 as stated by the petitioner, and provided an explanation of the increase in value with a letter from Phillips' attorney; and (v) stated that the $42 judgment was eventually paid, as verified by an attached statement from the Anderson County Clerk of Court. 10. WSNW did not attempt in its petition to deny to raise a character qualifications issue based on the foregoing allegations. Had such an issue been raised, however, we would have found, on the basis of this uncontroverted explanation of Tri-County, that there were no substantial or material questions of fact warranting a hearing on such an issue. In its petition for reconsideration, WSNW has presented no new facts. Therefore, its request for a character qualifications issue must be denied. 11. Based on the foregoing, the Commission finds that WSNW has not raised substantial and material questions of fact relevant to the area's ability to sustain another radio station without a net loss or degradation of service to the public, or as to the applicant's qualifications, and further, has not presented any grounds, facts, or arguments which were not previously raised, or which would indicate that our action denying its first petition was in error. 12. Accordingly, It is ordered, That the petition for reconsideration filed by Blue Ridge Broadcasting Co., Inc. (WSNW), Is hereby denied. FEDERAL COMMUNICATIONS COMMISSION, 18 F.C.C. 2d |