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In re Applications of CLEVELAND BROADCASTING, INC., CLEVELAND, OHIO; COMMUNITY TELECASTERS OF CLEVELAND, INC., CLEVELAND, OHIO For Construction Permits for New Television Broadcast stations

Docket No. 15163 File No. BPCT-3117; Docket No. 15164 File No. BPCT-3176

FEDERAL COMMUNICATIONS COMMISSION

12 F.C.C.2d 1008; 13 Rad. Reg. 2d (P & F) 156

RELEASE-NUMBER: FCC 68-560

May 22, 1968 Adopted

ACTION:

MOMORANDUM OPINION AND ORDER

JUDGES:

BY THE COMMISSION: COMMISSIONERS LEE AND WADSWORTH ABSENT; COMMISSIONER COX DISSENTING AND ISSUING A STATEMENT IN WHICH COMMISSIONER JOHNSON JOINS.

OPINION:

[*1008] 1. The Commission has under consideration: (a) Petition to reopen proceedings and admit new applicants, filed March 12, 1968, by Westchester Corp. (licensee of standard broadcast stations WIXY and WDOK-FM, Cleveland, Ohio), and pleadings responsive thereto; n1 (b) a Review Board Decision, FCC 67R-131, 7 FCC 2d 680, released April 7, 1967; (c) a Commission Order, FCC 67-1314, released December 20, 1967, by which the Commission granted the application for review of Community Telecasters of Cleveland, Inc.; (d) a petition for leave to amend and to reopen record for limited purposes, filed May 17, 1967, by Cleveland Broadcasting, Inc.; (e) a motion to reopen the record, filed December 4, 1967, by Community Telecasters of Cleveland, Inc.; (f) a petition for leave to amend and to reopen record, filed December 15, 1967, by Cleveland Broadcasting, Inc.; (g) a joint request for approval of agreement and dismissal of application, filed December 27, 1967, whereby Cleveland Broadcasting, inc., would dismiss its application and Community Telecasters of Cleveland would be granted unopposed; (h) an Order, FCC 68-92, released January 30, 1968, whereby the Commission referred to the Review Board for its consideration a joint request for approval of agreement and dismissal of application; (i) a Memorandum Opinion of the Review Board, FCC 68R-66, released February 28, 1968, and (j) petition for waiver of the rules, filed April 15, 1968, by Westchester. n2

n1 Oppositions, filed Mar. 25, 1968, by Community Telecasters of Cleveland, and Mar. 27, 1968, by Chief, Broadcast Bureau. In addition, Westchester has attempted to reply to the oppositions via a pleading styled "Petition for Waiver of the [47 CFR 1.227] Rules" which accompanied an application for construction permit for channel 19, Cleveland, Ohio. Such portion of the petition for waiver as replies to the oppositions will be disregarded as being unauthorized (47 CFR 1.294(b)) and, in any event, it was filed some 19 days after the last opposition to which it purports to reply (47 CFR 1.45 and 47 CFR 1.294).

n2 See footnote 1, supra.

[*1009] 2. The position taken by Westchester in its petition to reopen and permit additional applicants to file in this Cleveland UHF comparative proceeding for channel 19 n3 is that, since Community is disqualified to be a licensee of the Commission (a conclusion not reached by the Review Board) and since Cleveland wishes to dismiss its application, there is no acceptable applicant for channel 19 remaining before the Commission. Hence, Westchester asserts that the Commission should reopen the proceedings and permit it to file. However, petitioner has done nothing more than reargue facts already known to the Commission at the time this matter was referred to the Review Board for an opinion n4 on the compensated dropout agreement.

n3 Absent such reopening and permission to file, Westchester's application would be grossly dilatory, as the comparative proceeding was designated for hearing on Sept. 16, 1963.

n4 Since rendered favorably, Memorandum Opinion, FCC 68R-66, released Feb. 28, 1968.

3. Westchester is mistaken in several respects. First, Westchester's petition is filed by a stranger to the proceeding. It has never been granted, nor has it sought, intervention. As a potential applicant, it has no standing to file this petition. n5 Its reason for late filing, i.e., that control of the corporate applicant changed on March 4, 1968, we find unacceptable, because the corporate entity remained the same and those assuming such control in 1968 took over all the advantages and disabilities of the existing corporation. As to the third criterion of 47 CFR 1.223(d), we find no showing that the petitioner, if granted intervention, could assist the Commission in determining the issues. Thus, Westchester has no standing to file the petition and it could be summarily stricken on procedural grounds alone.

n5 Rhode Island Television Co. v. FCC (C.A.D.C., 1963), 320 F. 2d 762, 116 U.S. App. D.C. 40, 25 R.R. 2103.

4. We are, however, aware that if the state of facts postulated by Westchester actually existed, i.e., that there were no remaining quali fied candidates for channel 19, we would be confronted with an unique situation and there might be merit to the petition. We have not been persuaded, however, to disqualify Community as an applicant. The Review Board, stringent as its decision (as to which we had granted review) was as to Community, did not disqualify that applicant. As to Cleveland, it had been found fully qualified for the grant until the question of its noncompliance with 47 CFR 1.65 was raised and, as we indicated in our document referring the matter to the Review Board, n6 we were not persuaded that even the allegation raised at that time would have resulted in its disqualification.

n6 FCC 68-92, released Jan. 30, 1968.

5. Westchester's argument further postulates, of course, that Cleveland has requested absolute dismissal and that Community is disqualified. However, examination of the joint request for approval of agreement and dismissal of application fails to reveal such an absolute request on Cleveland's part. Rather, it is the usual contingent request for dismissal, conditioned upon a compensated dropout and grant of Community. Cleveland is, therefore, still before the Commission as a qualified applicant, as is Community.

6. We find no good reason demonstrated why Westchester should be permitted to intervene or to file this petition. We further fail to find any reason for reopening this proceeding to admit new applicants. [*1010] While Westchester has cited to us a number of cases in the past where the Commission has, either sua sponte or by court direction, reopened proceedings to new applicants (or has granted short-term licenses with provision for early competitive filings) despite the existence of a qualified applicant who remained from the original comparative proceedings, our examination of those cases reveals that invariably there was an existing service which would continue, pending resolution of the new comparison. Here, Westchester would have us dismiss Cleveland, disqualify Community, and begin a new comparative channel 19 proceeding among Westchester and any others who might apply. Meanwhile Cleveland, Ohio, which has been waiting for 5 years, would be deprived of the new service for another extended period of time. The public interest would not be served by such an action when Community is qualified, and ready, willing, and able to construct. The relief requested will, therefore, be denied.

7. It appears that the Review Board has examined the joint request referred to it, has concluded that in all respects it comports with the provisions of 47 CFR 1.525, and recommends that it be granted and the accompany agreement be approved. Upon consideration of the whole record, the Commission adopts the recommendation of the Review Board and concludes that the agreement is consistent with the public interest, convenience, or necessity.

8. Accordingly, It is ordered, that the petition of Westchester Corp. to reopen proceedings and admit new applicants Is denied; that the joint request for approval of agreement and dismissal of application, filed December 27, 1967, by Cleveland Broadcasters, Inc., and Community Telecasters of Cleveland, Inc., Is approved; that the application of Community Telecasters of Cleveland, Inc. (BPCT-3176), for a new UHF television station to operate on channel 19 at Cleveland, Ohio, Is granted; that the application of Cleveland Broadcasting, Inc. (BPCT-3177), for the same authorization Is dismissed; that the Review Board Decision, FCC 67R-131, 7 FCC 2d 680, released April 7, 1967, Is set aside; that the petition of Westchester Corp. for waiver of the rules Is denied; that the remaining pleadings described in paragraph 1, subparts (d), (e), and (f), supra, and the review proceedings provided by the Commission's December 20, 1967, Order, Are dismissed as moot.

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

DISSENTBY: COX

DISSENT:

DISSENTING STATEMENT OF COMMISSIONER KENNETH A. COX IN WHICH COMMISSIONER NICHOLAS JOHNSON JOINS

I think the Commission, of its own motion, should open this case for further applications. Both the original parties violated section 1.65 of the rules. The party preferred by the examiner and the Review Board, having lost its preference in the process, has agreed to a compensated withdrawal. The losing applicant will now receive a grant, despite its rule violation and its cross-ownership problems. I think it is more important to accept new applications than to expedite a fifth commercial service for Cleveland.