In re Application of
SIERRA-PACIFIC RADIO CORP. (KOSO), PATTERSON, CALIF.
Requests:
Change Station Location to Mount Oso, Calif. For Modification of License
FEDERAL
COMMUNICATIONS COMMISSION
7
F.C.C.2d 61 (1967); 9 Rad. Reg. 2d (P & F) 497
RELEASE-NUMBER:
FCC 67-182
February
8, 1967 Adopted
BY THE COMMISSION: COMMISSIONER JOHNSON
DISSENTING AND ISSUING A STATEMENT.
OPINION:
[*61] At a session of the Federal Communications Commission
held at its offices in Washington, D.C., on the 8th day of February 1967;
1. The Commission has before it the above-captioned-and-described
application and the applicant's request for a waiver of section 73.203(b) of
the Commission's rules to permit acceptance and grant of the application.
2. The applicant, licensee of FM broadcast station KOSO, proposes
to change the station location from Patterson to Mount Oso, Calif. Mount
Oso is more than 25 miles from the city where the channel is assigned (Turlock,
Calif.) in the Commission's Table of FM Assignments. Section 73.203(b) of
the rules permits the use of a channel in an unlisted community only when that
community is within 25 miles of the place where the channel is assigned.
3. In support of the request for waiver the applicant cites
section 73.206(b) of the rules which states that a class B station "is
designed to render service to a sizable community, city, or town, or to the
principal city or cities of an urbanized area, and to the surrounding
area." The applicant states that neither Turlock (population 9,116) nor
Patterson (population 2,246) are principal cities and it is anomalous for KOSO
to be identified with either while the station is actually situated in a much
better known, famous, and more prominent place, and is already associated in
the public eye with such place, because of the station's call letters and
transmitter-antenna site. According to the applicant, the station is
programmed as a "good music" facility with a minimum of interruptions
on the hour and half hour, and the programming thus appeals to a listening
audience of far greater scope than the population of Patterson. A
precedent is said to exist for the identification of an FM station with a
famous mountain, where the mountain is a famous and well-known geographical
feature in the area served by the station (station WMTW-FM, Mount Washington,
N.H.).
[*62] 4. Even if we were to determine that applicant
had provided adequate justification exceeding the 25-mile limitation of section
73.203(b), it would still be necessary to determine that Mount Oso is a community
within the meaning of this provision, or that waiver of this requirement is
appropriate. Available information indicates that Mount Oso is an
unpopulated mountain peak, and as such is not a community within the meaning of
our rules (see Seven Locks Broadcasting Co., 3 R.R. 2d 177 (1964) and cases
cited therein). Although in one of the cited cases the specified location
was found to be a community, even though it then had no population, the
community was expected to spring up during construction of a nearby dam.
In this case, Mount Oso neither has, nor from the showing provided can we
determine that it will have, such resident population. The Mount
Washington channel cited by the applicant was in use before adoption of the FM
table. Thus, the "grandfathering" into the table of this
assignment cannot be considered as a precedent for the requested waiver.
Nor has applicant provided any other basis upon which we could conclude that
the public interest would be served by granting the waiver request to permit
Patterson's only FM station to be assigned to a mountain rather than a
community.
Accordingly, It is ordered, That the request of Sierra-Pacific Radio
Corp. for waiver of section 73-203(b) of the Commission's rules Is hereby
denied and the above-captioned application Is returned to the applicant.
FEDERAL COMMUNICATION COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS
JOHNSON
I dissent.
The Federal Communications Commission has today forbidden the location
of a radio station on a mountain -- Mount Oso, in California. Why?
Because our rules require that stations be located in communities, and, as
everybody knows, an unpopulated mountain is just not a community. n1
n1 There are
apparently to be but two exceptions under the terms of the majority's
opinion. (1) An unpopulated area can be a "community" if people
reasonably can be expected to "spring up." (2) Mount Washington, in
New Hampshire -- the only unpopulated mountain "community" in the
table of assignments, where WMTW-FM is located -- will continue to be entitled
to a "community" FM station because both it and WMTW-FM were in place
before this Commission adopted its Table of FM Station Assignments.
One would be reasonable in his suspicion that this case must have
threaded its way to us through a metaphysical morass of geography and
bureaucracy. Especially is this so in view of the fact that KOSO's
transmitter and antenna have, in fact, been physical situated on Mount Oso for
some time, and its call letters rather prominently contain the letters
"OSO." n2
n2 The FCC has taken
advantage of the fact that words can mean what it wants them to in its
electronic palace in wonderland. Thus, "location" has been
defined so as to have nothing to do with the geographical placement of a
station's studio, transmitter, or antenna tower. Stations are required by
our rules to pause for station identification (in the language of our
regulation, "(1) on the hour and (2) either on the half hour or at the
quarter hour following the hour and at the quarter hour preceding the next hour
* * *"). Sec. 73.287(a) (1) and (2). During this pause they
must state their call letters and location. And "the station will be
considered to be located in * * * [the] community which will be specified in
the station license." Sec. 73.210(a)(1). A station need not even
have a studio in the community in which it is located. For, although a
rule expressly provides that "each station shall maintain a studio, which
shall be known as the main studio, in the place where the station is
located," the same subsection contains its own built-in waiver:
"Provided, That the main studio may be located at the transmitter site
whether or not the transmitter site is in the place where the station is
located." Sec. 73.210(a)(2).
The applicant's petition contains this rather straightforward
explanation of the significance of its request: "By its application
herein, petitioner seeks no changes in engineering, financing, ownership,
studio location, or programming of station KOSO. Rather, the purpose of
the application is merely to compose the station identification of KOSO with
the type of programming which the station is carrying, the audience it is
serving, and the representations previously made to the Commission with respect to programming matters."
[*63] The owners of station KOSO purchased the station when
it was assigned to Turlock, Calif., and was being operated under the call
letters KHOM. They subsequently sought and received this Commission's
approval to move the station location to Patterson, Calif., and put the
transmitting equipment on Mount Oso. This was approved because --
although no station had been assigned to Patterson -- our rules provide that,
"A channel assigned to a community listed in the table of assignments
[Turlock] is available upon application in any unlisted community [Patterson]
which is located within 25 miles of the listed community." Section
73.203(b). Patterson is but 15 miles from Turlock. Mount Oso, we have
been informed, is approximately 28 miles from Turlock.
At first blush the uninitiated might think Mount Oso eliminated as a
possible location for a station assigned to Turlock because it is 3 miles
beyond the 25-mile limit. But, no. That geographical misfortune,
like the thousands of other snares in the 1,681 pages of Commission rules,
could be removed quite easily. Borrowing from the lore of magic wands we
could just waive the rule -- itself a waiver of the table of assignments to
communities. Although the somewhat ambiguous and unarticulated criteria
for rule waiver have not yet reached the conceptual intricacies of the early
common law writs, their understanding and mastery are equally limited to
specialists in the practice. In any event, the majority opinion indicates
(though without apparent explanation) that the Commission would have been fully
prepared to consider a waiver in this case. n3 No, the problem lies not in Mount Oso's vertical distance from
Turlock, but in its horizontal distance. For no interpretation of the
Commission's rules can change the fact that Mount Oso, is, quite clearly and
unmistakably, an unpopulated mountain.
n3 Although the
majority does not make its willingness express, it may fairly be implied from
the opinion and past incidents of similar waivers. Even in a prior matter
involving this very station, as the applicant notes, when "suitable studio
facilities could not be found within the community of Patterson itself, * * *
it was necessary to apply for and obtain a waiver of the rules to allow the
studio to be situated in a location a short distance outside of town." See
not 2, supra, for the already liberal rule regarding studio location, waived in
the instance cited, which would have permitted KOSO to put its main studio on
Mount Oso and have no studio whatsoever in Patterson, the community in which
KOSO is located.
It is not unnatural that a station owner might want to place his
facilities on a mountain. A station located in a community often has its
transmitter and antenna on the highest spot available simply because it
increases its signal coverage area. What better high spot than a
mountain? n4 Moreover,
mountains have always held a fascination for man. The majority apparently
accepts the applicant's assertion in this case that Mount Oso -- Spanish for
the romantic mountain [*64] bear -- is a "much better known,
famous, and more prominent place" than either Turlock or Patterson, Calif.
n4 There is, of
course, no suggestion in the majority's opinion that the transmitter and
antenna need be torn down and moved from Mount Oso. See note 2, supra.
It was Samuel Francis Smith who, in 1831, wrote the song that prompted
all Americans thereafter to cry out,
From every mountain-side
Let freedom ring.
And even if the last line has more recently come into prominence in
telephonic communications, we can assume that the author of "America"
would have no objection to our today applying the two lines to broadcasting
from Mount Oso. It was long before the days of radio that Lord Byron
sensed
High mountains are a feeling, but the hum
Of human cities torture
and, if even closer ties with modern-day broadcasting are required,
that Walter Savage Landor wrote, "The mountains are our sponsors * *
*."
What finer, more appropriate place for a radio station to be located
than atop a mountain? How, then, could the majority have come to its
conclusion?
We cannot be sure. The opinion gives little illumination --
beyond its insistence upon the strict enforcement of past practice. We may
safely assume, however, that its reasons lie somewhere in vaguely conceived
notions of "local service" and "community identification."
A radio station is supposed to provide local service. It can be located
in any community up to 25 miles away, and have its transmitter, antenna, and
studio on a mountain, and still provide the requisite local service. But
once it identifies with the mountain for purposes of station identification --
so the argument might run -- hopes for local service will vanish.
There are two things wrong with this argument.
(1) This Commission has evidenced almost no concern about the quantity
and quality of local programming. I am sure that it is partially as a
consequence that many stations provide very little, if any, meaningful local
service. Records, program packages, network programming, and advertising
are very largely indifferent to locality. In this instance, as the
majority acknowledges, KOSO is programmed as a "good music" facility
with a minimum of interruptions on the hour and half hour, and the programing
thus appeals to a listening audience of far greater scope than the population
of Patterson. n5
n5 As the applicant's
petition explains: "In accordance with those representations (which are
set forth in the application for assignment of license of station KOSO to
Sierra-Pacific), KOSO has been operated as a wide area, 'good music'
facility. That is, the station features sophisticated music -- ranging
from classical to semi-classical to conservative pops -- broadcast with a
minimum of interruptions except for news on the hour and half hour.
Naturally, there are commercial announcements. However, every effort is
made to present them in an unobtrusive and nonirritating manner."
It is a programming "intended to appeal to executives,
professionals, students, and others who appreciate good music, and quiet,
restrained, but complete and factual news reporting."
What difference does it make, under these circumstances, where a
station is located?
(2) If this Commission, or KOSO, were to believe that the station
should provide a "community service" to those people living in the
communities within its listening area, it easily could do so. Local
[*65] news, sports, announcements of local events, interviews and public
affairs programs, coverage of local events, etc., could be provided as well by
a station identified with Mount Oso as with Patterson -- a "city" of
2,246 people who are obviously but a small proportion of KOSO's total listening
audience (within an area up to 85 miles from Patterson).
I have written before of my concern for our failure carefully to think
through what we are, and what we are not, doing in regard to local service --
in the KABL and Station Identification opinions. n6 I need not repeat those analyses here. It does seem to me,
however, that the Mount Oso case neatly exemplifies the lengths to which our
present chaos has carried us. Even from this mountaintop I cannot see the
end of the trial. n7
n6 McClendon Pac.
Corp., 5 FCC 2d 855, 8 R.R. 2d 1187 (1966); Proposed Amendment of Station
Identification Rules (concurring statement) (docket No. 17145, Jan. 25, 1967).
n7 A station must make
announcements at renewal time in the community or communities of location so
that the public in these areas, if it feels that the station is not serving
effectively as an outlet for local expression, can inform the Commission and a
local hearing can be held. See 46 U.S.C. sec. 311 (1964), 47 C.F.R. sec.
1.580 (1966).
I do not mean to express disagreement with this concept of local
service. On occasion, indeed, it has been so tempered as to permit a
station to specifically serve communities in addition to the one in which it is
located. For example, the Riverton, Wyo., TV station serves Riverton, Lander,
Worland, and Thermopolis. KWRB, FCC 59-991, Sept. 23, 1959. See
Petersbury Television Corp., 10 R.R. 567 (1954).
It is highly possible that a station which is not held responsible to
serve as local outlet for any community may simply end up not being responsible,
period. It would not have to make any announcements in any local area at
renewal time. And its obligations to its listening public, insofar as
serving local needs and interests are concerned, might become so diffuse as to
vanish. In dissenting to the majority's resolution of the issues posed by
this case, I do not mean to endorse the principle that a station should have no
responsibility to serve the listeners within its signal area. It is just
that, in my view, local service is independent of our extraordinarily complex
rules regarding station location.
I am principally disturbed because, although the Commission goes to
great length to require adherence to the rule here in question, it does not
follow through with the much more important task of seeing to it that stations
serve as outlets for local expression. To renew the licenses of stations
which earn millions of dollars in advertising revenue and provide little or no
meaningful local public service programming, while at the same time denying the
present request because of some unarticulated pretense of desire for local
service, makes little sense. For it is not the form, but the substance,
against which our efforts to insure operation in the public interest must, and
will, be judged.