In re Applications of BURBACH
BROADCASTING CO.,
File No. BPH-5892
FEDERAL COMMUNICATIONS COMMISSION
12 F.C.C.2d 103; 12 Rad. Reg. 2d (P
& F) 806
RELEASE-NUMBER: FCC 68-311
March 20, 1968 Adopted
ACTION:
MEMORANDUM
OPINION AND ORDER
JUDGES:
BY
THE COMMISSION: COMMISSIONER COX DISSENTING AND
ISSUING A STATEMENT IN WHICH COMMISSIONER JOHNSON JOINS.
OPINION:
[*103] 1. The Commission has under consideration the above-captioned
applications and a joint request, as supplemented, for approval of an agreement
between the parties for dismissal of the WERC, Inc., application and
reimbursement by Burbach of WERC's expenses in filing and prosecuting its
application.
2. WERC's application, originally tendered on
March 1, 1967, was returned because it involved short-spacings in violation of
the Commission's rules. On May 9, 1967,
the application was resubmitted with a request for waiver of the rules. Burbach filed its application on June 21,
1967, and on July 28, 1967, filed its opposition to WERC's waiver request. Two days before, the Commission dismissed an
application for
3. In the joint request and supplement WERC
states that another site meeting the spacing requirements had been found, but
that upon further reflection it did not feel it would be appropriate to amend
its application to specify this site, especially in view of the possibilities
for improving the operation on its present channel, the financial and business
drawbacks involved in the site change, and the necessity for a comparative
hearing. On this basis, WERC agreed
with Burbach to [*104] dismiss in exchange for reimbursement. In its supplement, WERC acknowledged that
the Commission's decision in WMSJ, Inc., FCC 67-697, 10 R.R. 2d 404 (1967),
precludes reimbursement for dismissal of unacceptable applications, but argued
that the reasons for this policy were not applicable in this case and,
therefore, that the decision should not preclude approval of this agreement. According to WERC, since it was fully able
to cure the defects in its application it would serve no purpose to require it
to perform the useless act of doing so before permitting approval of the
agreement. In its opinion, the situation is sufficiently distinguishable from
that obtaining in the WMSJ case so that no question of a possible
"strike" application could arise, particularly since it was the first
to file.
4. Our reasoning in WMSJ, Inc., is equally
applicable here. There we said: * * *
The rule, section 1.525, concerning drop-out and merger agreements, speaks in
terms of "conflicting applications" and, before an application can
acquire any rights as a conflicting application, it must be acceptable for
filing. An opposite holding would abolish
the real distinction between acceptable and unacceptable proposals by affording
them equal status. This, in turn, would
not only create a legal absurdity, but would also tend to encourage the filing
of strike applications. For these
reasons, we are not going to sanction an agreement, now or in the future,
involving a proposal which is not acceptable for filing.
It
should be emphasized that neither in this case nor in the WMSJ, Inc., case is
there any question concerning the good faith of the withdrawing applicant. In fact, our policy is designed to avoid
having to consider such a question by placing the matter beyond
temptation. Therefore, the distinctions
urged by WERC are irrelevant.
5. It is ordered, that the subject joint
request Is denied and the WERC application Is returned as unacceptable for
filing.
6. It is further ordered, that the application
of Burbach Broadcasting Co. Is granted.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENT:
DISSENTING
STATEMENT OF COMMISSIONER KENNETH A. COX IN WHICH COMMISSIONER NICHOLAS JOHNSON
JOINS
I
dissent to this grant for just one reason -- the applicant's commercial
proposal. It states that the maximum amount
of commercial time it will normally allow in any 60-minute segment is 18
minutes, which is quite acceptable. It
further said that in certain circumstances it will exceed that normal standard,
but that in such cases it will not devote more than 20 minutes to commercials.
This, again, would be quite reasonable -- if such a residual policy were
proposed in limited and well-defined circumstances.
The
applicant says that it will extend its maximum commercial level to 20 minutes
per hour in the event of emergency and between Thanksgiving and Christmas. If "emergency" is reasonably
construed, I would accept both of these as representing occasions when the
slightly higher commercial volume would be acceptable. But beyond these categories, [*105] the applicant proposes to broadcast
as much as 20 commercial minutes per hour in the event of "inadvertency of
the staff" or "unusual circumstances." These concepts are so
vague and could be urged to excuse the higher commercial level so much of the
time that I think the applicant could carry 20 minutes of commercials whenever
it could sell that much time and still be within its representations. I think, therefore, that its proposal really
has to be read as allowing 20 commercial minutes in an hour any time, and I do
not think that is consistent with the public interest -- at least in the
absence of a special showing justifying such a policy. It makes the claim that applicant's normal
practice will be to limit commercial time to 18 minutes in an hour a sham. I do not think we should accept such an
ambiguous standard and, therefore, dissent.