In re Application of WTRF-TV, INC

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In re Application of WTRF-TV, INC. (ASSIGNOR) AND FORWARD TELE-PRODUCTIONS, INC. (ASSIGNEE) For Consent to the Assignment of Licenses of Stations WTRF-TV and WTRF-FM, Wheeling, W. Va.

BALCT-361 BALH-1137

FEDERAL COMMUNICATIONS COMMISSION

16 F.C.C.2d 782 (1969); 15 Rad. Reg. 2d (P & F) 819

RELEASE-NUMBER: FCC 69-190

February 28, 1969 Adopted

BY THE COMMISSION: COMMISSIONER BARTLEY DISSENTING; COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.

OPINION:

[*782] We have before us for consideration the above entitled application for the assignment of the licenses of stations WTRF-TV and WTRF-FM from WTRF-TV, Inc., to Forward Tele-Productions, Inc. The application contains a request for a waiver of the interim processing procedures contained in our notice of proposed rulemaking (multiple ownership rules) docket No. 18110, released March 28, 1968.

1. On March 28, 1968, we issued a notice of proposed rulemaking (docket 19110) which proposed inter alia "No license for an FM broadcast station shall be granted to a party if such party already owns or controls * * * a television station in the market applied for." We also stated: "* * * Applications filed during the pendency of this rulemaking will not be acted on until the Commission has determined the action to be taken on the proposed rule." However, the Commission also anticipated an expedited proceeding.

2. On August 12, 1968, the applicants filed an application requesting the Commission's consent to the assignment of the licenses of WTRF-TV and WTRF-FM to Forward Tele-Productions, Inc. The parties requested that the Commission waive its interim processing procedures supra and grant the application.

3. It appears that termination of the proceeding in the very near future is not possible. Not to act on this pending application until the Commission has determined the action to be taken would, in effect, be imposing the proposed rule before it becomes finalized, in a situation where grant of the application will not increase concentration in the face of the proposal. A grant of the application would simply continue an existing joint operation. We have, therefore, decided to consider the application on its merits.

[*783] 4. The assignee is qualified in all respects. With regard to docket No. 18110, the assignee has presented two alternatives to the Commission. One is to make the grant subject to the immediate surrender of the FM license. We do not believe this course, which would deprive Wheeling of this existing FM service, would be in the public interest. The second alternative approach suggested by the applicants is that they would accept a grant subject to the outcome of the proceeding in docket No. 18110. This may, of course, require divestiture of the FM station at that time. We conclude that a grant on this basis would serve the public interest because (1) it would not materially alter the present concentration, if any, that WTRF-TV and FM represent since they are presently under common ownership and (2) it would not deprive the residents of Wheeling, W. Va., of its existing FM service.

5. In view of the above, we conclude that a grant of the above application would serve the public interest, convenience and necessity. Therefore, It is ordered, That the above application for the assignment of the licenses of stations WTRF-TV and WTRF-FM from WTRF-TV, Inc., to Forward Tele-Productions, Inc., Is granted, subject to the condition that if the acquisition by the assignee of licenses for stations WTRF-TV and WTRF-FM is inconsistent with the resolution of the rulemaking proceeding in docket No. 18110, the licensee will surrender or dispose of one of such licenses upon notification by the Commission.

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

WTRF-TV and WTRF-FM, Wheeling, W. Va., are to be sold -- as a package -- to Forward Tele-Productions, Inc. by WTRF-TV, Inc. The Commission majority has approved this sale, even though it violates the Commission's interim policy in the one-to-a-market rule-making (docket No. 18110, prohibiting the ownership of more than a single full-time property in any one market).

I dissent.

I have previously outlined my concerns to our waiving the interim policy, and will not repeat them here in full (see, Coos County Broad-casting, F.C.C. 69-121 (1969)). Final action on this rulemaking has been prevented by the Commission's unnecessary accession to the delaying tactics of those who oppose it. The majority's action and discussion today constitute substantial prejudice to the outcome of that rulemaking.

Its fear of loss of radio service to the Wheeling community are undocumented and unreasonable -- the threat of WTRF-TV to turn in its FM license could as well result in new applicants for the station and an interim operation during a comparative hearing (if necessary).

[*784] And while this grant is made "subject to" the outcome of the one-to-a-market rulemaking, the majority by its discussion indicates its position on how FM stations are to be handled in any one-to-a-market rules. The majority states:

One is to make the grant subject to the immediate surrender of the FM license. We cannot make a grant subject to such a condition. WTRF-FM is presently serving the needs of Wheeling, W. Va. To surrender the license would deprive Wheeling of this existing FM service and would therefore be contrary to the public interest.

The relationship of this statement to the one-to-a-market rulemaking is obvious. Finally, the refusal to hold a hearing to determine the public interest benefits of this transaction, and the lack of a majority opinion outlining compelling reasons for granting of these applications, coupled with the open violation of the proposed rules, flies in the face of a recent Court opinion reversing this Commission's disposition of another case affected by this very rulemaking. Joseph v. FCC, 13 P & F R.R. 2116 (D.C. Cir. 1968).

Productions is already a powerful media owner in another State, Wisconsin. Through several subsidiaries Foward either owns or has substantial interests in (1) Kaukauna (WKAU), (2) Madison (WMTV-TV), (3) Marshfield (newspaper), (4) Merrill (newspaper), (5) Rhinelander (newspaper), (6) Wausau (the only newspaper, the Record-Herald, and WSAU-TV-AM-FM), and (7) Wisconsin Rapids (the Tribune and WFHR-AM-FM -- the only media in Wisconsin Rapids). It also owns KCAU-TV in Sioux City, Iowa.

No reasons are presented as to how the public interest -- nationally or in Wheeling -- is served by this Commission's adding to such a multimedia corporation's holdings.

I dissent.