In re Application of CLARENCE E

Back to Index

In re Application of CLARENCE E. FAULK, D.B.A. RUSTON BROADCASTING CO. (ASSIGNOR) and RUSTON BROADCASTING CO., INC. (ASSIGNEE) For Consent to the Assignment of Licenses of Stations KRUS and KRUS-FM, Ruston, La.

Files Nos. BAL-6408, BALH-1128, BASCA-313

FEDERAL COMMUNICATIONS COMMISSION

16 F.C.C.2d 834 (1969); 15 Rad. Reg. 2d (P & F) 892

RELEASE-NUMBER: FCC 69-201

March 5, 1969 Adopted

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

[*834] 1. We have before us for consideration the above entitled application for the assignment of the licenses of stations KRUS and KRUS-FM from Clarence E. Faulk, doing business as Ruston Broadcasting Co. to Ruston Broadcasting Co., 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.

2. On March 28, 1968, we issued a notice of proposed rulemaking (docket No. 18110) which proposed, inter alia:

No license for an FM broadcast station shall be granted to any party if such party already owns or controls an unlimited time standard broadcast * * * station in the market applied for * * *.

We also stated: Applications filed during the pendency of this rule making will not be acted on until the Commission has determined the action to be taken on the proposed rule. The applicants have asked for a waiver of this processing procedure in the public interest.

3. It appears that early termination of the rulemaking proceeding, supra, is not possible. Since this is the case, not to consider the request for waiver of the interim processing procedure and the pending application until the Commission has determined the action to be taken on the rulemaking will be, in effect, imposing the proposed rule before it becomes finalized. We seek to avoid such arbitrary action. Therefore the request for waiver and the application will be considered on its merits.

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 grant the application subject to the immediate [*835] surrender by the assignee of the FM license. Although the assignee has offered to accept a grant on this basis, such a grant would be contrary to the public interest. KRUS-FM is presently serving the needs and interests of Ruston, La. To order the immediate surrender of that license would deprive that city of its existing FM service. The second alternative offered by the applicant is that we make the grant subject to the outcome of the proceeding in docket No. 18110. We conclude that a grant on this basis would serve the public interest, convenience and necessity because (1) KRUS-AM and FM are presently operated under common ownership and, therefore, a grant concentration, if any, that common ownership of subject to the condition aforementioned would not materially alter concentration, if any, that common ownership of KRUS-AM and FM represents and (2) such a grant would not deprive the residents of Ruston, La. of their existing FM service.

Moreover, we note the following statement made by the applicants in the application:

Even though Ruston is a small community which is exempt from the Commission's requirements on nonduplication of processing, Assignor has pursued a policy of separate programming for KRUS-FM * * *. Assignee proposes to follow Assignor's policy of separate programming for KRUS-FM * * *. We consider that to be in the public interest.

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 application for the assignment of the licenses of stations KRUS and KRUS-FM to Ruston Broadcasting Co., Inc., Is granted, subject to the condition that if the acquisition by the assignee of the licenses for stations KRUS and KRUS-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

The Commission has today waived its interim policy in the one-to-a-market rulemaking and approved a change of ownership of the only radio stations in Ruston, La.

I dissent.

KRUS-AM and FM are now to be owned by Ruston Broadcasting Co., Inc. Since both broadcast fulltime the transfer violates the interim policy enunciated when the Commission proposed rules to prospectively ban such combinations. In a previous opinion dissenting to the Commission's first waiver of the interim policy [Coos County Broadcasting, F.C.C. 69-121 (1969).] I outlined my concerns about such waivers. I will not repeat them in full here. The majority's action, however, is in direct conflict with the U.S. Court of Appeals' most recent decision in this area [ Joseph v. F.C.C. 13 P & F Radio Reg. 2116 (D.C. Cir. 1968)].

There is an additional aspect of this case that warrants comment. KRUS-AM and FM is being transferred from an owner with no other broadcast interests to a multiple owner of substantial proportions. [*836] The Commission has thus, quite literally, succeeded in making a bad situation (under its own standards) even worse. The majority simply ignores this problem in its opinion.

The principals of the new licensee also have interests in WRUS-AM and FM, Russellville, Ky.; WRAG, Carrolton, Ala. (and an interest in a construction permit for an FM in Carrolton); WKIZ-AM and FM, Key West, Fla.; WELZ, Belzoni, Miss.; WMAG (AM) and WQST (FM), Forest, Miss.; and a construction permit for a new AM station in Donaldsville, Ala. I find no reason to add to the holdings of an absentee owner -- eight of whose properties will be in the Louisiana, Mississippi, Alabama region -- in a manner which the Commission has proposed be barred under its rules.

I dissent.