In Re Application of COSMOS
BROADCASTING CORP. (WSFA-TV),
MONTGOMERY, ALA. For Construction
Permit
Docket
No. 16984 File No. BPCT-3643
FEDERAL
COMMUNICATIONS COMMISSION
21 F.C.C.2d 729;
RELEASE-NUMBER: FCC 70R-64
Adopted
February 18, 1970
JUDGES:
BY THE REVIEW
BOARD: SLONE, PINCOCK, AND KESSLER.
OPINIONBY: PINCOCK
OPINION:
[*729]
1. This proceeding involves the
application of Cosmos Broadcasting Corp. (Cosmos), licensee of VHF television
broadcast station WSFA-TV, channel 12, Montgomery, Ala., to change transmitter site
and increase antenna height WSFA-TV presently operates from a site located on
Mount Carmel, 24 miles south of Montgomery, with effective radiated power of
316 kw. and antenna height above average terrain of 1,040 feet. Cosmos originally proposed, among other
things, to move WSFA-TV's transmitter site to Union Springs, Ala., which is
located approximately 38 miles southeast of Montgomery, and to increase antenna
height to 2,000 feet above average terrain.
Petitions to deny the application were filed by WTVY, Inc. (WTVY),
licensee of VHF television broadcast station WTVY, channel 4, Dothan, Ala., and
Martin Theatres of Georgia, Inc. (Martin Theatres), licensee of VHF television
broadcast station WTVM, channel 9, Columbus, Ga. Objections were also filed by Coastal Television Corp. (Coastal),
then an applicant for a construction permit for a new UHF television broadcast
station to operate on channel 38 at Columbus, Ga. By memorandum opinion and order released November 21, 1966, n1 the Commission designated the Cosmos application for
hearing under areas and populations,
[*730] UHF impact, and Suburban
issues. The designation order named
WTVY, Martin Theatres and Coastal parties respondent to the proceedings, n2 and placed the burdens of proceeding and proof under
the UHF impact issue on them. Cosmos
was assigned the burdens of proceeding and proof with respect to the other
issues. Subsequently, by separate
orders of the hearing examiner WCOV, Inc. (WCOV), licensee of UHF television
broadcast station WCOV-TV, channel 20, Montgomery, and Gala Broadcasting Co.
(Gala), permittee of UHF television broadcast station WYFA-TV, channel 38,
Columbus, Ga., were made parties to the proceeding. n3 On June 13, 1967, after giving
notice to the other parties and the hearing examiner of its intention to amend
its application, Cosmos filed a petition for leave to amend to specify a
transmitter site near Grady, Ala., approximately 29 miles south-southeast of
Montgomery and 12 miles east-southeast of its present site, with the same power
and antenna height proposed in its original application. The petition was granted and the amendment
accepted by the examiner by "Memorandum Opinion and Order," released
July 25, 1967 (F.C.C. 67M-1230). On
June 28, 1967, Cosmos filed a petition for reconsideration and grant without
hearing, arguing that its amended application did not pose the questions which
were present when its application was designated for hearing. That petition was denied by Review Board
memorandum opinion and order released January 8, 1968. n4
Hearings were held in October 1967, and in February through May 1968, and the
record was closed on July 24, 1968.
n1 5 F.C.C. 2d 690, 8 R.R. 2d 975.
n2 Coastal became permittee of
channel 54, Columbus, on Mar. 29, 1967, and participated at the hearing until
June u968, when it announced its withdrawal as a party from the
proceeding. On July 1, 1968, Coastal
surrendered its construction permit for station WTRT, channel 54. The parties thereafter agreed that Coastal's
evidence should remain in the record and be considered as part thereof.
n3 F.C.C. 67M-86, released Jan. 19,
1967; F.C.C. 67M-1575, released Sept. 27, 1967. WCOV did not participate at the
hearing or at the oral argument before the Board (see note 6, infra). In 1968, subsequent to the evidentiary
hearing, Gala merged with Inland Broadcasting Co. into Eagle Broadcasting Co.
(Eagle), a corporation. See Gala
Broadcasting Company, 9 F.C.C. 2d 803, 10 R.R. 2d 1120, rehearing denied 11
F.C.C. 2d 40, 11 R.R. 2d 993 (1967), review granted in part and denied in
part. F.C.C. 68-512, 13 R.R.. 2d 103.
Eagle bound itself by affidavit to the evidence in the record. Consistent with the examiner's usage in the
initial decision, the Board will refer to the respondent at Gala and not as
Eagle.
n4 11 F.C.C. 2d 313. 11 R.R. 2d 1195.
2. On February 4, 1969, Hearing Examiner
Millard F. French released an "Initial Decision" (F.C.C. 69 D-5, 15
R.R. 2d 569) recommending a denial of the Cosmos application. The examiner concluded that the Cosmos
proposal would impair the ability of Gala's proposed UHF station (WYEA-TV) in
Columbus, Ga., to operate effectively, and, therefore, that a grant of Cosmos'
application would not be consistent with Commission policy or in the public
interest. The areas and populations and
Suburban issues were resolved in the applicant's favor. The proceeding is now before the Board on
exceptions filed by Cosmos, WTVY, Martin Theatres, Gala, n5 and the Broadcast Bureau. We have reviewed the initial decision in light of these
exceptions, the arguments of the parties, n6
and our examination of the record.
Briefly stated, the Board agrees with the examiner's ultimate
recommendation to deny the Cosmos application.
However, whereas the examiner based his recommendation on an adverse
resolution of the UHF impact issue,
[*731] we are denying Cosmos'
application for the applicant's failure of proof under the Suburban issue. In our opinion, the impact of the Cosmos
proposal on authorized and prospective UHF television stations in Alabama and
Georgia was not shown by respondents to be sufficient to warrant denial of the
Cosmos application. Generally, the
examiner's findings of fact on all the issues adequately reflect the evidence
of record. Therefore, except as modified
herein and in the rulings on exceptions contained in the attached appendix, the
examiner's findings are adopted.
n5 WTVY, Martin Theatres and Gala
filed joint exceptions, a joint supporting brief, and a joint reply brief. Hereinafter these three parties will be
referred to jointly as respondents.
n6 Oral argument was held before a
panel of the Review Board on Nov. 6, 1969.
UHF IMPACT ISSUE
3. The UHF impact issue seeks "to
determine whether a grant of the (Cosmos) application would impair the ability
of authorized and prospective UHF television broadcast stations in the area to
compete effectively, or would jeopardize, in whole or in part, the continuation
of existing UHF television service." Respondents had both the burden of
proceeding with the introduction of evidence and the burden of proof under the
UHF impact issue. Compare WLCY-TV, Inc.
(WLCY-TV), 16 F.C.C. 2d 506, 509-10, 15 R.R. 2d 642, 647 (1969). Cf. Daily Telegraph Printing Company (WBTW-TV),
20 F.C.C. 2d 976, 18 R.R. 2d 95 (1969). Through documentary and testimonial
evidence, respondents sought to prove that the Cosmos proposal would adversely
affect UHF television service and development in the Alabama cities of
Montgomery, Birmingham, and Dothan and in Columbus, Ga. The Bulk of the record evidence pertains to
the alleged adverse impact on station WYEA-TV in Columbus, and the examiner
predicated his decision to deny the Cosmos application solely on the basis of
adverse impact to that station. In the
Board's opinion, respondents failed to prove their case under the impact
issue. That is, respondents did not
establish that there would be either destruction or significant crippling of
UHF television service in Alabama or Georgia as a result of the move. See Midwest Television, Inc. (KFMB-TV), 13
F.C.C. 2d 478, 498, 13 R.R. 2d 698, 721, petitions for reconsideration
dismissed or denied 15 F.C.C. 2d 84, 14 R.R. 2d 691 (1968). Nor did respondents
show that there would be some substantial specific impact on UHF as a result of
the move. See TV Table of Assignments,
docket No. 18453, F.C.C. 2d , 17 R.R.2d 1620, 1630 (1969). Cf. New England Video, 10 F.C.C. 2d 749, 17 R.R.
2d 1109 (1969). n7 Rather, the direct and rebuttal
evidence, together, show only the likelihood of minimal impact on WYEA-TV
should WSFA-TV operate as proposed. In
the Board's opinion, the impact shown on the record is insufficient to warrant
the denial of the Cosmos application.
Cf. WHAS, Inc. (WHAS-TV), 4
F.C.C. 2d 724, 8 R.R. 2d 475 (1966), affirmed as modified F.C.C. 66-1159, 8
R.R. 2d 1214.
n7 In New England Video, a CATV case
involving sec. 74.1107 of the rules, the Commission rejected allegations of
adverse UHF impact raised in connection with a CATV proposal to carry the
signal of a UHF station. The Commission
held that, "Because of the distance of petitioner's CATV system from the
center of the * * * television market (in question) and the limited nature of
the carriage being permitted at this time, the possibility of any substantial
adverse impact on broadcasting service to the public is minimal * * *. (Therefore), we believe the proposal is
consistent with the establishment and healthy maintenance of television service
in the area." 20 F.C.C. 2d at 751, 17 R.R. 2d at 1112. (Italic supplied.)
[*732]
4. Before considering the merits
of the evidence introduced by respondents in attempting to prove their case
under the impact issue, n8 it is necessary to consider the
nature of the issue, with particular reference to the Commission's
well-established UHF policy.
Essentially, respondents take the position that their burden of proof
under the impact issue must be viewed in light of the Commission's long
standing policy of protecting individual UHF television stations and of
encouraging UHF development in general; that the burden on proof under a UHF
impact issue is not great as where hard facts, such as past conduct, are to be
proved; and, that respondents met their burden of proof in this case. We are in basic agreement with all but the
last of the respondents' general propositions; however, we do not agree with
respondents' application of these general propositions to the facts in this
proceeding. As the Board stated in 1968
in the Central Coast case n9: "The
very nature of the UHF impact issue in this or any other proceeding where it is
presented is such that the evidentiary hearing 'is not adjudication in the
sense that it is concerned with a determination of past and present conduct or
liabilities but rather has the object of eliciting sufficient information to
permit the Commission to make an informed policy judgment as to the best future
course in the market involved.
Moreover, since future events, such as * * * the potential effect [of,
in this case, a VHF transmitter relocation] on proposed and potential [UHF]
television stations, are not subject to positive proof, our findings and
conclusions must rest to some extent on forecasts and reasonable inferences
from such evidence as is available.'" n10 In
other words, the burden assumed by respondents in this case was to present
sufficient information at the hearing to show that a grant of the Cosmos
proposal would, in fact, "impair the ability of authorized and prospective
UHF television broadcast stations in the area to compete effectively, or would
jeopardize, in whole or in part, the continuation of existing UHF television
service."
n8 Actually, only Coastal and Gala
sought to prove that there would be adverse impact on UHF television service as
a result of the Cosmos proposal.
However, respondents filed joint findings and conclusions with the
examiner and joint exceptions and briefs with the Board, arguing with
essentially one voice on the impact issue.
n9 Central Coast Television
(KCOY-TV), 14 F.C.C. 2d 985, 14 R.R. 2d 575 (1968), review denied sub nom. Central Coast Broadcasters, Inc. (KCOY-TV),
F.C.C. 69-614, released June 9, 1969, reconsideration dismissed F.C.C. 69-840,
released Aug. 1, 1969, remand denied F.C.C. 70-137, released Feb. 5, 1970.
n10 14 F.C.C. 2d at 1007 n. 40, 14
R.R. 2d at 604 n. 40, quoting from Midwest Television, Inc. (KFMB-TV), supra,
13 F.C.C. 2d at 488, 13 R.R. 2d at 711.
5. In our opinion, the information presented by
respondents pursuant to the UHF impact issue is inadequate to support their
recommendation as to the best future course for television broadcasting in
Montgomery, Ala., in particular, and in WSFA-TV's grade B gain area in
general. Underlying respondents' impact
showing is a fundamental misconception as to the scope of the Commission's UHF
policy. Thus, the Commission does not
purport to guarantee the absolute success of UHF television broadcast stations,
as respondents implicitly argue in their exceptions and supporting brief. n11
Cf. FCC v. Sanders Brothers Radio
Station, 309 U.S. 470, 475 (1940). Rather, the Commission seeks to protect and
encourage UHF television service as much as possible, n12 without, at the same time, foreclosing possible
advantages [*733] to the public which may be achieved by the
improvement of VHF service. n13 It is definitely not the Commission's policy to
"insulate every UHF station or potential station from any possible small
wind of VHF impact, where there is a substantial service benefit involved in a
different course." TV Table of Assignments, docket No. 18453, supra. n14
In the final analysis, where, as here, UHF impact is in issue in a case
involving a proposed VHF transmitter move, a choice must be made between the
Commission's policy of [encouraging] television broadcast stations to operate
with maximum facilities in order to make the most efficient use of channel
assignments" and the policy of "fostering the development of UHF
broadcasting." South Carolina Educational Television Commission (WITV), 18
F.C.C. 2d 328, 331, 16 R.R. 2d 725, 729, reconsideration denied, 20 F.C.C. 2d
666, 17 R.R. 2d 1077 (1969). See Daily Telegraph Printing Company (WTW-TV),
supra. Where substantial adverse impact on UHF service has been shown, the
choice must be made in favor of the Commission's UHF protection policy. Gala Broadcasting Company, supra, F.C.C.
68-512, 13 R.R. 2d 103. On the other hand, in a case such as this one, where
only minimal impact on UHF has been shown, Commission policy does not require
us to deny applications to improve the operation of an existing VHF station,
especially where substantial service [benefits] would be achieved by a grant of
the VHF application. In the following
21 paragraphs, the Board will explain why, in its view, the record evidence in
this proceeding, considered in light of the Commission's policy articulated
above, does not compel a conclusion that the subject application must be denied
because of its potential impact on UHF television stations in the relevant
geographic area.
n11 See pp. 18-23 of respondents'
joint brief.
n12 Triangle Publications, Inc.
(WNHC-TV), 37 F.C.C. 307, 3 R.R. 2d 37 (1964).
n13 See Atlantic Telecasting Corp.
(WECT), 3 F.C.C. 2d 442, 7 R.R. 2d 297 (1966), affirmed sub nom. Lee v. FCC, 126 U.S. App. D.C. 45, 374 F. 2d
259, 8 R.R. 2d 2111 (1967).
n14 At oral argument, counsel for
Gala contended that what is involved here is not a small wind but a
hurricane. We disagree. The record evidence supports no such
conclusion. See pars. 7-26, infra.
6. At the outset, we note that the Cosmos
proposal would result in a more efficient use of channel 12, in that
significant service benefits to the viewing public in Alabama would result
therefore. Thus, WSFA-TV's request to
utilize the maximum power-antenna height combination permitted a television
station in the channel 7-13 band would result in: (1) No deprivation or
degradation of existing television service; n15
(2) a gain in service to 294,400 persons in 7,350 square miles within WSFA-TV's
proposed grade B contour; and (3) the elimination of white and gray areas
containing 4,200 persons and 12,100 persons, respectively. These definite public interest benefits must
be considered in resolving the impact issue.
n16 On the other hand, providing the
foundation for respondents' position on the impact issue is the undisputed fact
that the Cosmos proposal would result in increased overlap of WSFA-TV's grade B
contour with the like contours of several authorized and prospective UHF
television broadcast stations in Alabama and Georgia. Possibly endangered by the Cosmos proposal would [*734]
be the following UHF stations or prospective UHF stations: WCOV-TV,
channel 20, Montgomery; WKAB-TV, channel 32, Montgomery; WBMG, channel 42,
Birmingham; WYEA-TV, channel 38, Columbus (cp); WCFG-TV, channel 68, Birmingham
(cp); channel 45, Montgomery; channel 21, Birmingham; channels 18 and 60,
Dothan; channel 29, Selma; and channel 54, Columbus. Respondents' attempt at the hearing to translate the possibility
of harm to these stations, which gave rise to the impact issue, n17 into the probability of harm sufficient to warrant
denial is based mainly on the following arguments; (1) That presently operating
commercial UHF stations in Montgomery and Birmingham would suffer significant
economic losses as a result of the proposed WSFA-TV modification; (2) that
prospective UHF stations in Montgomery, Birmingham, and Dothan, Ala., and in
Columbus, Ga., either would not be activated or would have difficulty in
getting established because of the WSFA-TV proposal; and (3) that station
WYEA-TV in Columbus would sustain significant losses in network, national,
regional, and local revenues, ultimately resulting in a loss of television
service to the public in the Columbus area.
The bulk of the evidence, however, concerns that alleged impact on
station WYEA-TV.
n15 Compare Central Coast Television
(KCOY-TV), supra, 14 F.C.C. 2d at 1000, 14 R.R. 2d at 596. Cf. Television Corporation of Michigan v. FCC,
111 U.S. App. D.C. 101, 294 F. 2d 730, 21 R.R. 2107 (1961). The original Cosmos
proposal would have resulted in the deprivation and degradation of television
service in general and in the creation of white and gray areas in
particular. See par. 3 of the
"Designation Order," 5 F.C.C. 2d at 691, 8 R.R. 2d at 978.
n16 Cf. South Carolina Educational
Television Commission (WITV), supra.
n17 The possibility of harm to UHF
television service in the Montgomery area and in the proposed new service area
formed the basis for the designation of an impact issue in this proceeding. See pars. 5 and 6 of the "Designation
Order," 5 F.C.C. 2d at 692-693, 8 R.R. 2d at 979-980. By Commission
directive, however, it remained the responsibility of respondents to prove at
the hearing that UHF television service in the area would be seriously impaired
or jeopardized as a result of the Cosmos proposal. Cf. WLCY, Inc. (WLCY-TV),
supra.
7. First, we will deal with possible impact on
UHF television service in the Alabama cities of Montgomery, Birmingham, and
Dothan. The record shows that the areas
within the grade B contours of the two Montgomery UHF stations are entirely
encompassed within WSFA-TV's present and proposed grade B contours. The grade B contour of UHF station WBMG,
Birmingham, falls 30 miles short of Montgomery. WSFA-TV's proposed grade B contour does not cover any part of the
city of Birmingham, and reaches to within only 27 miles of the city,
penetrating WBMG's grade B contour to a maximum depth of 16 miles, an increase
of 7 miles beyond the present 9-mile penetration. All of the overlap area lies within the grade B contours of
Birmingham's two VHF television stations, WBRC-TV (ABC-CBS) and WAPI-TV
(NBC-CBS). At present, WSFA-TV's grade
B contour does not reach Dothan.
Operating as proposed, WSFA-TV would cover the entire city, which lies
to the southeast of Montgomery, with a grade B signal. Study prepared for Gala in March 1968, by
Charles H. Smith, a broadcast research consultant, purports to show injury to
UHF stations in Montgomery, Birmingham, and Dothan. In particular, the Smith study attempts to demonstrate that
WSFA-TV's proposed move would cause serious economic injury to the two
Montgomery UHF stations through direct loss of revenue and to UHF stations in
the adjacent markets of Birmingham and Dothan, Ala., through a shift of viewing
audience to WSFA-TV.
8. In regard to the Montgomery stations, Smith
expressed the opinion that the expected increase in WSFA-TV's audience would
necessarily improve its already dominant position in the Montgomery [*735]
market. n18 Proceeding from this major premise, Smith sought to
demonstrate that the increased homes acquired by WSFA-TV would be of such
magnitude as to elevate the entire Montgomery market from its present American
Research Bureau (ARB) ranking of 123 into the top 100 markets. The result of this elevation, according to
Smith, would be that WSFA-TV, with its enlarged service area, would become an
even more attractive buy for advertisers than it is now (see note 18, supra),
and that WSFA-TV would consequently get virtually all of the national spot
business placed in the Montgomery market.
A move by Montgomery into the top 100 markets would also lead to
increased overall costs (including those for syndicated programs and personnel)
for all of the Montgomery television stations, Smith Concluded, with the two
commercial UHF stations unable to compete with WSFA-TV in meeting such
increased costs, and the inevitable result would be increased revenues for
WSFA-TV and decreased revenues for the two UHF stations.
n18 WSFA-TV is the only VHF
television broadcast station licensed to operate in Montgomery, the State
capital (1960 population 134,393 persons).
The other television stations licensed to Montgomery are: Channel 20,
WCOY-TV; channel 32, WKAB-TV; and channel 26, WAIQ (noncommercial), Channel 45
is allocated to Montgomery but is vacant.
All three commercial stations are primary affiliates of the three major
networks: WSFA-TV is affiliated with NBC; WCOV-TV with CBS; and WKAB-TV with
ABC. In 1966, 84 percent of national
and regional revenues and 63 percent of local revenues in the Montgomery market
went to WSFA-TV.
9. Smith's opinion that WSFA-TV's proposed move
would jeopardize UHF television stations in Birmingham and Dothan is based on
the supposed growth of the Montgomery market at the expense of the Birmingham
and Dothan markets under ARB's Area of Dominant Influence (ADI) concept. n19
Signals from other television stations serving the same area were not
considered. Thus, Smith's opinion is
based on WSFA-TV's improved signal versus the local signal (e.g., WBMG,
Birmingham) without regard to other services available in the area. According to Smith, the ADI concept is in
more frequent commercial use than other measures of the market; e.g., net
weekly circulation or advertiser-originated tests. Applying the ADI concept to the facts in this case, Smith
concludes that seven counties now in the Dothan ADI, Birmingham ADI, and the
Columbus ADI would all be reclassified into the Montgomery ADI as a result of
the improvement of WSFA-TV's facilities.
n20 Consequently, the Montgomery market
would attract the increased attention of national advertisers since media
planners are more interested in the top 100 television markets. Further, even though more national spot
dollars would be allocated to the Montgomery market, these dollars would go
almost exclusively to WSFA-TV because only WSFA-TV would serve the entire
enlarged market.
n19 ADI is an ARB television market
concept whereby each county in the United States is credited to that market
whose stations, in sum, account for the largest share of the viewing hours
reported in the county. By this method,
each county in the United States is assigned to a single market, and no
allowance is made for overlapping coverage of counties by stations in different
markets.
n20 In arriving at these
projections, Smith employed ARB coverage data as a reference point and
considered the penetration of the WSFA-TV grade B contour in determining what
counties could be expected to increase their viewing of the Montgomery
stations. Based upon these projections,
Smith estimates that there would be a probable gain of 42,000 television homes
in the Montgomery market's ADI which represents a 38-percent increase to
152,000 television homes. This would
move Montgomery's national rank to the top 100 markets.
[*736]
10. In our view, it is doubtful
that the Cosmos proposal will impair the ability of the two Montgomery
commercial UHF station to operate effectively.
WSFA-TV already encompasses the grade B contours of these stations. Thus, the increase in WSFA-TV's coverage
will, in our opinion, have little, if any, impact on the ability of these UHF
stations to compete with WSFA-TV.
Significantly, it was not shown that WSFA-TV's present competitive
position in the Montgomery market would be so enhanced as to lead to the
crippling or destruction of the two existing commercial UHF stations in
Montgomery. While WSFA-TV may dominate
the Montgomery market, as respondents maintain, it has not been proven that its
present share of national, regional, and local sales will increase to the
extent that the Montgomery "U's" will be substantially affected. In other words, we fail to see how WSFA-TV's
already high percentages of total revenues in the Montgomery market (see note
18, supra) can be greatly increased as a result of the proposed move. In this regard, it is noteworthy that each
UHF station is a primary affiliate of a major network, has operated in the
Montgomery market for several years, and, by Smith's evidence, has shown
constant economic improvement. A
network affiliation enhances a television station's chances for survival and
viability. Cf. TV Table of Assignments,
docket No. 18390, 17 F.C.C. 2d 419, 15 R.R. 2d 1602 (1969); Central Coast
Television (KCOY-TV), supra, 14 F.C.C. 2d at 1006, 14 R.R. 2d at 603. Likewise,
there was no showing that channel 45 in Montgomery is likely to be activated in
the immediate future; and the prospects for the channel's activation were not shown
to be impaired or jeopardized by the Cosmos proposal. In these circumstances, than, n21
we conclude that the impact, if any, on the Montgomery stations from a grant of
the subject application would be minimal.
Cf. New England Video, supra.
n21 That neither UHF station opposed
a grant of the Cosmos application nor participated at the hearing (see note 3,
supra), is not of decisive significance in this case. See WLCY, Inc. (WLCY-TV), supra, 16 F.C.C. 2d at 530, 15 R.R. 2d
at 671.
11. Charles Smith's study with respect to
adverse impact on UHF television service in Birmingham and Dothan is predicated
upon his opinion that ADI is the primary tool used by advertisers in deciding
how and where to spend advertising dollars in a television market. However, Cosmos' expert witness, Ernest H.
Clay, who, like Smith, is also an experienced broadcast research consultant,
expressed the opinion that ARB's ADI concept is not the primary determinant of
the amount of national spot advertising dollars spent in a television
market. Rather, Clay states,
"market rankings based on actual audience measures (average quarter hour
or net weekly circulation) are certainly the most frequently used tool in the
general market by market allocation of national spot dollars." On this
basis, Clay concludes that the impact of the Cosmos proposal on UHF service in
Dothan and Birmingham would be minimal.
Thus, Clay's expert testimony expressly contradicts the underlying basis
of Smith's study and opinion. There is
no objective evidence in the record to support the opinion of either of these
experts in this regard. In light of the
contradictory testimony and the facts that respondents bore the burden of proof
under the impact issue and failed to support Smith's opinion testimony [*737]
regarding ADI with objective evidence, we cannot accord substantial
weight to that opinion. In addition,
Smith failed to consider outside signals serving the area in reaching his
ultimate conclusion, thereby eliminating the significant factor of competition
for audience by stations other than WSFA-TV and the home market station. Furthermore, WSFA-TV's proposed grade B
signal would not even reach Birmingham, but would only extend to within 27
miles of that city. Therefore, the
possibility that the Cosmos proposal would adversely affect station WBMG is
remote. See WHAS, Inc. (WHAS-TV),
supra.
12. As noted above, respondents' case under the
impact issue rests mainly on an allegation of adverse impact on station WYEA-TV
in Columbus, G.; and, in view of respondents' failure of proof as to UHF impact
elsewhere in WSFA-TV's proposed service area (see pars. 7-11, supra), a finding
of "substantial adverse impact" on WYEA-TV n22 is crucial if respondents are to prevail under the
impact issue. The examiner concluded
that "WSFA-TV's proposal would impair the opportunity for the
establishment and healthy development of * * * WYEA-TV * * * by the diminution
of that station's national, regional, and network revenue potential and thus a
grant of [Cosmos'] application * * * would not be consistent with Commission
policy nor in the public interest." In the examiner's view, the most
significant factor in respondents' favor is WYEA-TV's potential for a network
rate increase, and the resulting decrease in that potential should WSFA-TV
operate as proposed.
n22 TV Table of Assignments, docket
No. 18453, supra.
13. The record evidence shows that the city of
Columbus (1960 population 116,779) is located approximately 80 miles to the
east of Montgomery and lies directly on the Georgia-Alabama State line. There are two operating commercial VHF
television broadcast stations in Columbus: WTVM, channel 9 (ABC-NBC) and WRBL,
channel 3 (CBS-NBC). A noncommercial
UHF television broadcast station (WJSP-TV) operates on channel 28. Channel 54 is allocated to Columbus but is
vacant, n23 and Gala has a construction permit
for station WYEA-TV on channel 38. The
record evidence shows that WYEA-TV would be a primary affiliate of the NBC
television net-work and that its initial rate would be $150 per hour. n24
The record further shows that Columbus lies on the periphery of WSFA-TV's
proposed grade B contour and that not all of the city would receive a grade B
or better signal from WSFA-TV, operating as proposed. In particular, WSFA-TV's proposed operation will result in grade
B coverage by WSFA-TV of 90 percent of the area and population of Columbus,
85.6 percent of the Columbus urbanized area, and 68.2 percent of the Columbus
standard metropolitan statistical area.
The Columbus urbanized area has a population of 158,382 persons and
consists of Columbus, Bibb City, and urbanized areas in Georgia, and Phoenix
City, Ala. WYEA-TV's grade A contour
encompasses [*738] all of the Columbus urbanized area. The Columbus standard metropolitan statistical
area (population 217, 985) is comprised of Russell County, Ala. (population
46,351), and Muscogee (population 158,623), and Chattahoochee (population
13,011) Counties, Ga. WYEA-TV's grade A contour encompasses most of the
Columbus standard metropolitan statistical area and the station's grade B
contour covers all of the Columbus SMSA.
n25
n23 See note 2, supra.
n24 The two Columbus VHF stations
have NBC hourly rates of $700 and neither is required to give NBC any free
hours or waivers, as WYEA-TV would be expected to do. However, according to NBC's vice president in charge of station
relations, who testified at the hearing, NBC did not take the VHF stations'
$700 rate into consideration in setting the $150 starting rate for WYEA-TV.
n25 The entire area (4,646 square
miles) within the grade B contour of WYEA-TV is within the grade B contours of
the two Columbus VHF stations.
14. WSFA-TV's present grade A contour falls
short of WYEA-TV's grade A contour by approximately 5 miles. Operating as proposed. WSFA-TV's grade A contour would overlap
WYEA-TV's grade A contour to a depth of 14 miles and would reach to within 17
miles of Columbus. The present and
proposed grade B contours of WSFA-TV overlap the grade B contour of WYEA-TV by
distances of 25 miles and 48 miles, respectively. n26 Of the 7,350 square miles that
would gain grade B coverage from WSFA-TV for the first time, 23.2 percent (or
1,703 square miles) is encompassed within the grade B contour of WYEA-TV. The incremental overlap area contains
201.740 persons, and these persons comprise 68.5 percent of the 294,400 persons
in the entire grade B gain area of WSFA-TV.
The record also shows that 135,604 persons in the gain area reside in
the Columbus urbanized area. These
135,604 persons represent 46.1 percent of the gain area population. The proposed extension of WSFA-TV's grade B
contour will permit coverage for the first time of at least 50 percent of the
population within WYEA-TV's grade A contour and will reduce from 51.5 to 27.6
percent the total area within WYEA-TV's grade B contour wherein grade B
coverage is obtained from only two VHF stations. The grade B overlap area receives grade B or better service from
two to five VHF television stations.
n26 The overlap figures found in
this decision and in the examiner's initial decision are based on the record
established in this proceeding. We are
bound by these figures in reaching a conclusion under the UHF impact issue. Cf.
Deep South Broadcasting Company v. FCC, 120 U.S. App. D.C. 365, 347 F.
2d 459, 4 R.R. 2d 2018 (1965). However, had the present hearing record as a
whole convinced us to confirm the examiner's conclusion with respect to adverse
impact on station WYEA-TV, we would have had to remand the proceeding for
further hearing under the impact issue in light of the Commission's recent
action granting WYEA-TV's application for a major modification of its
facilities. Eagle Broadcasting Company
(WYEA-TV), 20 F.C.C. 2d 233, 17 R.R. 2d 766, released Oct. 28, 1969. Eagle (herein referred to as Gala) had
requested permission to relocate its transmitter site and to increase antenna
height and effective radiated power. Of
significance to this proceeding is the fact that operating as now authorized,
station WYEA-TV would increase its proposed grade B service area by more than
50 percent. The effect of the operation
of Gala's new and more powerful facilities on the outcome of the UHF impact
issue in this proceeding is indeterminable.
As indicated, however, we need not consider the question since the
present record does not prove significant adverse impact on UHF television
service.
15. Respondents' evidence under the impact issue
dealing with the Columbus NBC affiliated UHF station (now channel 38) consists
of the oral and written testimony of two witnesses: Charles F. Grisham, Gala's
managing partner, and Dr. Robert A. Porter, vice president and technical
director of Spindletop Research, Inc., a research institute located in
Lexington, Ky. Spindletop was commissioned by Coastal in 1967 to study the
possibilities for a network affiliated UHF station in Columbus, both with and
without a grant of the Cosmos application.
In addition to their factual showings, respondents also rely on the
"basic absolutes or constants in the UHF-VHF relationship which [*739]
exist independently of the ownership or operation of particular UHF or
VHF stations in a given market." n27
WLCY, Inc. (WLCY-TV), supra, 16 F.C.C. 2d at 516, 15 R.R. 2d at 654-655. The
gist of Gala's and Coastal's factual evidence purports to show than an NBC
affiliated UHF station in Columbus would be seriously jeopardized by WSFA-TV's
proposed operation. In rebuttal, Cosmos
introduced the oral and written testimony of Ernest Clay, a broadcast research
consultant, and George M. Lohnes, an engineer.
In short, Cosmos sought to show that there would be no significant
adverse impact on any UHF station anywhere in WSFA-TV's proposed service area,
including Columbus, as a result of the Cosmos proposal. According to the applicant, "no reasonable
interpretation of the evidence * * * could lead to the inference of the
existence of adverse UHF impact on WYEA-TV because of the Cosmos
application."
n27 E.g., that, all other things
being equal, the introduction of a VHF television signal into the service area
of a UHF station seriously jeopardizes the chances for a financially successful
operation of the UHF station. Triangle
Publications, Inc. (WNHC-TV), supra, 37 F.C.C. at 320, 3 R.R. 2d at 53.
16. Charles Grisham, Gala's witness, expressed
the opinion that WSFA-TV's proposed move would result in the loss of
approximately one-third of WYEA-TV's anticipated revenues. Since Gala estimates first-year revenues of
$292,000 and expenses of $321,400, a one-third loss would be $94,000. However, the record evidence shows that
Gala's revenues and expense figures are estimates based on a November 1966,
study of 1965 revenues of other closely ranked ARB markets, all of which had
three operating stations. The value of
Gala's estimates, which were out of date when presented at the hearing in 1968,
is highly questionable in resolving the impact issue. Grisham's opinion of a one-third loss was based generally on his
broadcast experience since 1939, and, in particular, on his managerial
experience since 1963 with UHF station WHNT-TV in Huntsville, Ala. The Board takes official notice that
Huntsville had a population of 73,365 in 1960 (U.S. census) and that there are
two operating commercial UHF stations in Huntsville, WHNT-TV (CBS) (channel 19)
and WAAY-TV (ABC-NBC) (channel 31), and no VHF stations operating or allocated
(Commission rule 73.606). Grisham
attributes a 50-percent loss in WHNT-TV's national and regional revenues to the
alleged exploitation by Birmingham and Nashville VHF television stations of their
audience reception beyond their predicted grade B contours in promoting their
stations with advertisers. However,
Gala expects 60 percent of WYEA-TV's revenues to be derived from local sources. The reason for this, according to Gala, is
that the station's cost per thousand (CPM) n28
is less important to local advertisers.
Although Grisham testified that he does not expect local advertisers to
switch from WYEA-TV to WSFA-TV, he does anticipate a switch from the UHF
station to the two Columbus VHF stations should WSFA-TV operate as
proposed. Furthermore, according to
Grisham, Columbus cannot support four commercial television stations, and if
WYEA-TV did [*740] not get a suitable per program arrangement
or network affiliation, he would recommend to his partners that the
construction permit for channel 38 be surrendered. n29 Grisham also believes that people
in the Columbus area (which includes Phoenix City, Ala., Columbus' sister city)
would watch WSFA-TV rather than WYEA-TV for NBC programming because "not
every (television) set is equipped to pick up UHF * * *, and if they can get a
signal out of Montgomery on their present VHF set, they will look at it."
According to Grisham, who is not an engineer, WSFA-TV, operating as proposed
from Montgomery 80 miles away, would be receivable in the Columbus area even
with rabbit ear antennas because of the flat terrain and low buildings.
n28 Cost per thousand represents the
cost of a spot announcement for every 1,000 television homes in which it is
viewed. For example, if a television
spot announcement is rated as viewed in 20,000 homes, and if that spot costs
$20, the cost per thousand to the advertiser is $1.
n29 At the time Grisham testified,
there were two operating VHF commercial stations in Columbus and two
prospective UHF commercial stations (WTRT-TV, channel 54, and WYEA-TV, channel
38). Grisham's testimony predated that
of Donald J. Mercer, NBC's vice president in charge of station relations, who
testified that NBC was willing to negotiate a contract with Gala prior to
construction looking toward a primary affiliation. NBC's commitment to Gala was made without regard to the Cosmos
application. Significantly, none of the
parties dispute that WYEA-TV would be a primary NBC affiliate.
17. Grisham further predicted that the Cosmos
proposal would have an inhibiting effect upon any future network rate increase
for WYEA-TV. Grisham's reasoning is
that network compensation is generally tied to cost per thousand (CPM) or
unduplicated homes delivered, and to the extent that WYEA-TV would have to
share NBC audience with WSFA-TV its audience would be smaller and its CPM
higher. The consequence of such a
situation, according to Grisham, would be to deprive WYEA-TV of any reasonable
prospects for obtaining a higher network rate in the foreseeable future. Grisham also states that WYEA-TV's national
spot sales would suffer as a result of the move. Should WSFA-TV's relocation cause the expected diminution of
revenues, WYEA-TV would, in Grisham's opinion, be forced to reduce its staff
and hours of operation; eliminate many of its local live programs, including
news and public affairs; and buy less costly syndicated and feature film. In Grisham's view, all of the foregoing would
not offset the UHF station's losses, and a losing operation would not be
tolerated indefinitely by Gala's owners.
18. In the Board's opinion, Grisham's testimony
does not prove that Gala would sustain a one-third loss in revenues as a result
of the Cosmos proposal. For, in this
case, as in the WHAS case, the testimony was "of a generalized nature and,
in the main, conclusionary. It lacked
direct specific factual data, the type of pertinent and relevant material
required for it to prevail in the ad hoc resolution of the impact issue."
WHAS, Inc. (WHAS-TV), supra, 4 F.C.C. 2d at 745, 8 R.R. 2d at 498. The major
basis for Grisham's estimate of a one-third loss should WSFA-TV operate as
proposed is his experience with UHF station WHNT-TV in Huntsville. Assuming, arguendo, that WHNT-TV experienced
a 50-percent loss in national and regional revenues because of competition from
VHF stations in other cities, it is, as the examiner found,
"incomprehensible how a loss of one-third of the total revenue of the
proposed (Columbus) UHF station would result, because only 40 percent of such
revenue is anticipated from national and regional sources." "Initial
Decision," 15 R.R. 2d at 582. Thus, the fact that Gala expects 60 percent
of its revenues to be derived
[*741] from local sources
significantly diminishes the relevance of the Huntsville experience, which was
not shown in any other respect to be similar to the Columbus station. In fact, Gala's advertising rates would be
one-half those of the Columbus VHF stations in order to keep its CPM
competitive. Furthermore, even though
WSFA-TV will cover 90 percent of the city of Columbus with a grade B signal,
Cosmos' unequivocal record position is that it does not intend to: (1) Act as
an NBC outlet for Columbus; (2) solicit local advertising in either Columbus or
its sister city, Phoenix City, Ala., although Cosmos would accept such
advertising if offered; or (3) maintain offices or studios in Columbus. Compare Central Coast Television (KCOY-TV),
supra, 14 F.C.C. 2d at 1002, 14 R.R. 2d at 598. Furthermore, Grisham used 1965
revenues in dissimilar markets for arriving at 1968 revenue projections for the
Columbus market. It is also significant
that Grisham failed to ascertain the degree of UHF conversion in making his estimates
for the Columbus market. Therefore,
Grisham's estimate of a one-third loss should WSFA-TV operate as proposed is,
at best, only an approximation based on rough estimates. As such, it fails to sustain Gala's ultimate
contention that competition from WSFA-TV 80 miles away would eventually cause
the demise of an NBC affiliated UHF television service in Columbus.
19. The record does not sustain Grisham's
prediction that in the event the Cosmos application is granted, people in the
Columbus area would watch WSFA-TV, a Montgomery, Ala, station rather than
WYEA-TV, a Columbus station, for NBC programming. This being the case, Grisham has failed to prove an essential
part of his case; namely, that WSFA-TV, operating as proposed, would have an
inhibiting effect upon any future network rate increases for WYEA-TV. According to the record evidence, several
factors, including total audience and program popularity, determine whether a
network rate increase will be granted.
While WSFA-TV will duplicate WYEA-TV's NBC program service in the
overlap area, thereby depriving the UHF station of some potential viewers,
there are several undisputed facts present in the hearing record which are
inconsistent with respondents' charge that a grant of the Cosmos proposal would
sharply diminish WYEA-TV's chances for a network rate increase in the
future. In contrast to the opinion
testimony of Grisham, who is not an engineer, and who was not qualified as an
engineering expert, Cosmos' engineering witness pointed out in his testimony
that three factors would tend to restrict viewing of WSFA-TV, operating as
proposed, in the Columbus area: First, the center of Columbus is approximately
80 miles from the proposed transmitter site and on the periphery of WSFA-TV's
proposed grade B contour; n30 second,
Columbus is from [*742] 300 to 400 feet below line-of-sight from
proposed WSFA-TV, but within line-of-sight of proposed WYEA-TV as well as the
two existing Columbus VHF stations, and within their respective principal city
grade contours; and, third, reception of WSFA-TV, operating as proposed, would
require the use of high-receiving antennas carefully oriented toward the
Montgomery station and away from the local Columbus stations. n31
In the engineer's opinion, an acceptable quality picture in the Columbus area
from the three local stations would be available at a greater number of
locations than from WSFA-TV, operating as proposed.
n30 The "Sixth Report and
Order," 1 R.R. (pt. 3) 91: 599, 17 F.R. 3905 (1952), and Commission rule
73,683 specify the level of signal intensities for the grades A and B contours
of television broadcast stations. The
engineering principles underlying those contours are found in the "Third
Notice of Further Proposed Rulemaking, Television Broadcast Service," 16
F.R. 3072 (1951). The grade A contour is defined as one where, at its outer
limits of service, the best 70 percent of receiver locations would be of a
quality acceptable to the median observer for 90 percent of the time; for grade
B service the figures are 50 percent of the locations and 90 percent of the
time. In specifying the level of these
signals, various factors were considered, such as terrain, local noise, and
interference factors. Thus, to overcome
local noise and interference under urban conditions, the specified grade A
field intensity for the channel here involved includes a 7-db factor; i.e., the
signal intensity has to be increased by 7 db over that which otherwise would be
required in the absence of local noise and interference. In contrast the specified grade B signal level
does not include any such factor. Thus,
in terms of probable service to Columbus and other nearby urban areas, it is
noted that a part of Columbus is located within and at the outer limits of the
proposed grade B contour where at best only 50 percent of the receiver
locations would have a signal of sufficient level to be acceptable to the
median observer, and that, in the presence of the local urban interference and
noise, the percentage would even be less.
Moreover, the grade B field strength specified for this service (grade
B) is based upon the assumed use of a half-wave dipole receiving antenna with a
gain of 6 db. Therefore, Grisham's
contention that WSFA-TV's proposed signal would be receivable in Columbus on
rabbit ears has no support whatever in engineering principles. In addition, other factors which would
mitigate against the reception of an acceptable quality signal at a distance of
80 miles are the probable fading of the signal and possible co-channel
interference from other stations. Co-channel
stations are located at Augusta, Ga., and Jacksonville, Fla.
n31 As the evidence shows, the
Columbus VHF stations are located generally to the east or southeast of
Columbus in a direction opposite to that of the proposed station. Accordingly, any orientation of existing VHF
receiving antennas are undoubtedly toward the local VHF stations, and hence,
would discriminate against the WSFA-TV signal.
Thus, under these circumstances any possible reception of the WSFA-TV
signal would require the antennas to be reoriented toward WSFA-TV with a
resulting degradation of the local signals.
20. While we do not necessarily agree with all
aspects of Cosmos' argument that WYEA-TV's signal would be dominant in most of
the grade B overlap area, n32 we do agree that
the distance of Columbus from the WSFA-TV transmitter site, and the attendant
consequences of that distance, cannot be overlooked in determining the outcome
of the UHF impact issue. Cf. Video Service Company, 20 F.C.C. 2d 676, 18
R.R. 2d 40 (1969). In view of the distance of Columbus from the Grady site, we
believe that most of the people in the Columbus area would tend to watch the
local UHF station rather than the distant VHF station. This is so for three basic reasons: First,
community interests and loyalties would encourage people in the Columbus area
to view the local city grade or grade A signal of the local Columbus station;
second, since Columbus is on the fringe of WSFA-TV's proposed grade B contour,
it is "highly improbable," as the examiner concluded, "that
persons on the fringe area of the grade B signal from (WSFA-TV) would be
content to view a picture of inferior quality when a much superior picture
could be obtained from WYEA-TV, inasmuch as the latter station's grade A signal
predominates in most of said area." "Initial Decision," 15 R.R.
2d at 594. Consequently, [*743] the signals of the two stations in question,
not being of equal strength in a crucial portion of the overlap area, n33 the certain basic absolutes in the UHF-VHF relationship
upon which Gala relies do not apply with the force that they did in the WLCY
and Central Coast cases, supra, where different sets of facts indicated serious
danger to the respective UHF stations involved. Cf. WHAS, Inc. (WHAS-TV),
supra. Finally, Grisham overlooked the important factor of UHF conversion in
making his prediction; and the undisputed evidence submitted by Coastal
indicates that by the end of 1973 approximately 93 percent of all television
receivers in Columbus will be capable of receiving UHF signals, with or without
the activation of a network affiliated UHF station. See also note 32, supra.
Thus, WYEA-TV's chances for survival, with or without WSFA-TV operating
as proposed, are much greater than Gala would have us believe. As the Commission stated in its recent
report and order adding a VHF television broadcast channel to Mount Vernon,
Ill.: "[Circumstances] have changed with the passage of over 7 years since
enactment of the all channel receiver law, and over 5 years since our rules
implementing it became effective (April 30, 1964). Receivers with UHF capability are now in widespread use, their
purchase being spurred by increased interest in color TV and thus purchase of
new sets." TV Table of Assignments, docket No. 18453, F.C.C. 2d at , 17 R.R. 2d at 1630.
Therefore, while UHF impact continues to be of "substantial
concern" to the Commission, not "every UHF station or potential
station" "must" be insulated "from any possible small wind
of VHF IMPACT." @T -- Table of Assignments, supra.
n32 Thus, we are award of the
present disparity in the ease of tuning VHF and UHF channels on today's
television sets, as pointed out by respondents in their reply brief. However, the Commission recently ordered that,
after May 1, 1971, all television receivers delivering pictures larger than 9
inches measured diagonally must have comparable UHF and VHF tuning
capabilities. Sets with pictures
smaller than 9 inches must have comparable tuning capabilities after May 1,
1973. "Report and Order,
All-Channel Television Broadcast Receivers," F.C.C. 70-113, released
February 2, 1970, F.C.C. 2d , 35 E.R. 2660. Furthermore, where as
here, a UHF signal is of city grade or grade A quality and a competing VHF
signal is of grade B quality or less, the significance of the disparity in ease
of tuning diminishes substantially and other factors (e.g., community loyalty)
predominate in the competitive relationship.
n33 The Columbus area is the most
populous segment of Cosmos' proposed gain area.
21. Next, the Board agrees with the examiner
that the two reports prepared in 1967 for Coastal by Spindletop Research, Inc.,
contain serious deficiencies which make them unreliable. "Initial Decision," 15 R.R. 2d at
594. The reports allegedly show that the NBC affiliated UHF station in Columbus
would be seriously jeopardized by the WSFA-TV move. In the examiner's view, both reports were amply rebutted (initial
decision, supra) by two of Cosmos' expert witnesses. We agree. Clay's estimate
of an 8.6-percent audience loss for the Columbus network affiliated UHF station
should WSFA-TV operate as proposed appears to be more realistic than
Spindletop's estimate of a 23-percent loss.
Although Clay admits that the VHF transmitter move would result in some
loss of audience by the UHF station, the loss would not be serious or fatal
since Clay also estimates a higher potential audience and, hence, higher
potential revenues for the UHF station than does Spindletop. The end result, in Clay's view, would be a
profitable operation by the Columbus UHF station even if WSFA-TV operates as
proposed.
22. The first Spindletop report (report 621,
"The Viability and Growth of a UHF Station in Columbus, Georgia") was
prepared in the spring of 1967 by Dr. Robert Porter of Spindletop without
knowledge or expectation of the Cosmos application. The stated purpose of the report was to "determine station
audience and revenues for the first years of operation of a new UHF station to
be affiliated with [*744] NBC and located at Columbus, Ga." The
following factors were analyzed in the report: Population growth, increase in
UHF receiving capability, expected audience, and corresponding expected
revenues. In addition, certain test UHF
stations in other markets were examined to determine the Columbus station's
growth potential. The report concluded
that by mid-1968 there would be 73,500 television homes in the proposed
station's grade A contour and 97,000 homes in the grade B contour, and by 1972,
there would be 84,200 such homes in the grade A contour, and 106,000 homes in
the grade B contour; and that, with the projected potential UHF audience, the
new station could be expected to have revenues of $308,000 for the first full
year of operation and annual revenues of $462,000 by 1973. Spindletop expects UHF penetration in
Columbus to reach 68 percent by mid-1968 and 93 percent by 1973.
23. In his rebuttal to Spindletop report 621,
Clay utilizes an engineering report prepared for Cosmos by Lohnes and Culver,
and challenges the adequacy of Spindletop's methods for making its audience and
revenue projections. Clay correctly
notes that Spindletop's audience and revenue projections were based on rough
approximations and not on any engineering data, such as station contours,
population, and other technical matters capable of definitive
determination. Likewise, the audience
projections for UHF stations in supposedly comparable markets were not made on
the basis of specific data, but were arrived at on the basis of data gleaned
from "Television Factbook." Spindletop neither researched nor
utilized the Commission's official files to determine the location of predicted
contours in the test markets. In
contrast to Spindletop's rough audience projections, Clay's audience
projections for Columbus are based on the distribution of Population according
to minor civil divisions. The
difference between the projection methods is reflected in the estimates of the
UHF station's potential television homes, with Clay's estimate of such homes,
and therefore the station's potential audience, necessarily being greater than
Spindletop's. Consequently, Clay
arrives at a higher estimate of potential revenues for the UHF station than
does Spindletop. Clay estimates
revenues of $433,000 to $544,000 in the first year of operation, and $649,000
to $817,000 3 years later.
Significantly, neither Clay nor Spindletop sought to show the revenue
level needed for a UHF NBC affiliate in Columbus to break even. Therefore, from the evidence available, it
is impossible to determine the potential viability of the Columbus UHF; and,
with this major deficiency, Spindletop report 621 fails as a means of proof
under the impact issue.
24. Spindletop report 625, entitled
"Effects of Competition on a UHF Station in Columbus, Ga.," was prepared
in the fall of 1967 expressly for the hearing in this proceeding. The stated purpose of the report was to
establish the effects of WSFA-TV's proposed move on a UHF NBC affiliate in
Columbus. In making this assessment,
Dr. Porter relied on two assumptions: (1) That the WSFA-TV signal in the
Columbus market would be as indicated in the amended Cosmos applications; and
(2) that the Columbus UHF station, then Coastal's WTRT-TV) will be successful
in obtaining an NBC affiliation. Report
625 seeks to estimate the UHF station's audience loss in each of the [*745]
counties in its market by examining the relative signal strengths of the
"U" and the "V" both before and after the WSFA-TV
move. To do this, the counties in the
overlapping service areas of the UHF station and WSFA-TV were classified
according to signal strength. n34 In order to arrive at the proper weight to assign
each of the classifications, Dr. Porter studied 20 markets with established UHF
network-affiliated stations competing with a VHF station of the same network
affiliation. Each county in the
selected markets was classified with the signal strength of the local UHF
station and the VHF station of the same affiliation, respectively. The UHF station audience share (ARB's
percentage of total hours viewed, average week) was listed for each county
under its appropriate signal classification.
These share figures were then arithmetically averaged for each
classification of counties. The weights
were then applied to the 12 Georgia and Alabama counties in the Columbus market
as they would be classified before and after the WSFA-TV move. The net result for all the affected counties
was a 23-percent reduction in the total potential audience for the prospective
Columbus UHF station. Spindletop
translated this 23-percent audience loss into a 23-percent loss of
revenue.
n34 The report uses the following
classifications: A -- grade A signal; B -- grade B signal; and / -- beyond
grade B contour. Thus, A/O means within
the grade A contour of a specified station and beyond the grade B contour of a
second specified station. For example,
before the proposed move, the Columbus UHF station's home county of Muscogee
received a grade A signal from the local UHF station and is outside the grade B
signal of WSFA-TV (A/O); after the move, however, Muscogee County receives a
grade A signal from the local UHF station, but part of the county, including
most of Columbus, will receive a grade B signal from WSFA-TV (A/B). Likewise, Russell County, Ala., would change
from A/O to A/B as a result of the move.
25. As Clay points out in his rebuttal to
Spindletop report 625, there are three fundamental flaws in the procedures
followed by Spindletop, rendering the entire report inadequate. First, the audience share figures used by
Spindletop represent the share of the entire market audience, instead of the
share of the network audience for one particular network in the county under
study. In other words, the Spindletop
approach does not eliminate the factor of competition (or lack of competition)
for audience coming from other network and independent stations. Thus, it does not confine itself, as it
should, to a consideration of only the audience to one particular network's affiliates
in a given locale. See Cosmos exhibit
16. Second, Spindletop's choice of UHF
stations supposedly analogous to the Columbus situation includes stations in
both single-station and two-station markets; stations in markets having other
stations affiliated with the same network; and one station which is practically
in the suburb of a major city which is, itself, a large VHF market. This is clearly inadequate. Third, in using the UHF audience ratings,
Spindletop erroneously assumed that all counties were equally saturated with
UHF television receivers. The record
evidence shows that the percentage of UHF saturation varies greatly from market
to market. In conclusion, Clay
estimates that the total loss for the Columbus UHF station would be between 8
and 9 percent of its potential audience, and not 23 percent, as estimated by
Spindletop report 625.
26. In our opinion, with an 8- or 9-percent
audience loss, it is doubtful that station WYEA-TV would be seriously impaired
or jeopardized by the WSFA-TV move, especially in view of its total audience [*746]
and revenue potential. In this
connection, it is significant that WYEA-TV would be providing the only locally
originated full-time NBC network television service in Columbus and
vicinity. See paragraphs 19 and 20,
supra. Compare Central Coast Television
(KCOY-TV), supra. This factor would, in our opinion, greatly enhance the future
success of station WYEA-TV even if the Cosmos application is granted. Cf. TV Table of Assignments, docket No.
18390, supra, 17 F.C.C. 2d at 423-424, 15 R.R. 2d at 1606-1607.
27. In sum, the Cosmos proposal would result in
significant service gains -- and no losses -- to the viewing public in the
State of Alabama. Furthermore, there is
no convincing evidence showing that there would be significant adverse impact on
UHF television service anywhere in WSFA-TV's proposed service area. Gala's and Coastal's evidence purporting to
show serious impairment of UHF television service in Alabama and Georgia should
Cosmos' application be granted was inadequate, standing alone, and was further
discredited by Cosmos' rebuttal showing.
Under these circumstances, the Board must conclude that the respondents
did not meet the burdens assigned them under the impact issue, and therefore
that the issue must be resolved in favor of the applicant.
The Suburban
Issue
28. WSFA-TV's proposed grade B gain area would
encompass 294,400 persons in 7,350 square miles in the States of Alabama,
Georgia, and Florida. The bulk of the
grade B gain area lies to the east and southeast of Montgomery and includes
several eastern Alabama communities and most of the Columbus, Ga., urbanized
area. Approximately 1 year before
filing the Union Springs application, Cosmos made a series of spot checks and
monitors in the eastern Alabama communities of Phoenix City and Eufaula
(combined population 35,987), and determined therefore that residents in the
area were not receiving sufficient Alabama news coverage. However, aside from spot checks and
monitors, no survey of the gain area was made by the applicant before the Union
Springs application was filed on October 11, 1965. In fact, the record shows that Cosmos' original program proposal,
filed with the Union Springs application, was not changed in any respect,
either in June 1967, in connection with the Grady amendment, or afterward, as a
consequence of the applicant's three post-filing program contacts in January
1966, April 1967, and September 1967.
In sum, the record shows that over a period of 1 1/2 years, Cosmos contacted
37 civic and community leaders in 13 Alabama and two Georgia communities and
received 47 replies to program questionnaires mailed to 92 Alabama community
leaders.
29. In January 1966, Sam Spivey, then operations
director and program manager of WSFA-TV, contacted 18 persons, all of them community
leaders, in four Alabama and two Georgia communities. n35 Among those contacted were: Five
mayors, four educators, three Protestant clergymen, four members of local
chambers of commerce, one [*747] commissioner of public works, and the public
information officer of Fort Benning, Ga.
All those contacted were white males.
Spivey's notes, which were introduced into evidence at the hearing to
substantiate that the visits were made, reveal that the January 1966, contacts
concentrated primarily on television programming and television reception in
the six communities surveyed, with emphasis on WSFA-TV's coverage of Alabama
news and public affairs. The April
1967, program contacts were made by Dixon Lovvorn, WSFA-TV's program and public
relations director, pursuant to the instructions of Bob Villar, WSFA-TV's
general manager. Although Lovvorn was
instructed in regard to the type of person to interview, n36 no specific names were supplied to him and no
appointments were made in advance of his visits. In all, 21 community leaders in 12 Alabama communities n37 were interviewed including nine mayors, three civic
leaders, one Protestant clergyman, two educators, three county agents, one
postal official, one city clerk, and one farm agent. n38 All those interviewed were white
males, except for the farm agent who was a Negro, but who was interviewed in
his capacity as a farm agent and not in anyway as a spokesman for the Negroes
of his community. As a followup to the
April 1967, program contacts, Cosmos, in September 1967, mailed program
questionnaires to 92 community leaders residing in 13 Alabama communities in
the grade B gain area. n39 The seven-question program questionnaire was
prepared by Lovvorn, who testified that he has no background or experience in
survey techniques. The mailing list for
the followup survey was made up of individuals previously interviewed plus
names supplied by local chambers of commerce.
With regard to the names supplied by the chambers of commerce, in some
cases the businesses or occupations of the individuals were supplied and, in
other cases, they were merely described as prominent businessmen. So far as Lovvorn knew, no Negro was
included in the September 1967, questionnaire mailing list. Although 47 persons responded to the
questionnaires, the identity of those responding is unknown since Cosmos did
not require people to sign their responses.
The form of some of the questions tended to encourage affirmative
answers; n40 and, according to Cosmos, there
were few responses to one question which asked if there were any issues and
problems concerning the individual's community to which television should
devote attention.
n35 The communities surveyed were
Alexander City, Lanett, Phoenix City, and Dothan (all in Alabama), and Fort
Benning and Cuthbert (both in Georgia).
n36 By memorandum, Villar instructed
Lovvorn to visit several Alabama communities in the grade B gain area and
"to contact the four community leaders in each one * * * [including] the
mayor or some other political leaders * * * one educator * * *, a county agent
and [a] religious leader." Villar's five-point guide for Lovvorn is quoted
in full at para. 67 of the "Initial Decision," 15 R.R. 2d at 587-588.
According to Villar, the objective of the survey was to ascertain community
needs and how WSFA-TV could serve those needs.
n37 The communities surveyed in
April 1967, were: Goodwater, Alexander City, Lafayette, Opelika, Phoenix City,
Eufaula, Abbeville, Dothan, Geneva, Florala, Monroeville, and Marion.
n38 Two of those interviewed were
also contacted by Sam Spivey in January 1966.
n39 The communities selected for
this survey were: Alexander City, Lanett, Lafayette, Opelika, Florala, Eufaula,
Dothan, Geneva, Phoenix City, Goodwater, Abbeville, Marion, and Monroeville. See note 37, supra.
n40 E.g., "Do you believe that
your community has a need for and interest in [WSFA-TV's news and informational
programming]?"
30. Finally, in addition to relying on its three
formal program contacts, Cosmos also relies on the following factors in support
of its ascertainment efforts in and proposed programming for the gain
area: [*748] (1) The area familiar to WSFA-TV's general manager, Bob Villar; (2)
the testimony of two area Congressmen; and (3) WSFA-TV's programming and ascertainment
techniques for its present service area.
The applicant argues that this evidence shows that the gain area is
nearly identical to WSFA-TV's present grade B service area, and that there is a
need for Alabama-oriented news programming in the gain area. It is WSFA-TV's position in this proceeding
that it will meet this need through its existing programming service. In this regard, the record evidence shows
that Cosmos has made no specific plans for meeting those needs and interests of
the gain area which it ascertained.
Rather, Cosmos intends to "incorporate the needs and interest of
the gain area into [WSFA-TV's] present programming structure." However,
the station's general manager testified at the hearing that Cosmos would not
consider any changes in WSFA-TV's present programming until after a grant of
its instant application.
31. In their proposed findings and conclusions,
respondents and the Broadcast Bureau contended that Cosmos failed to sustain
its burden of proof under the Suburban issue.
The hearing examiner resolved the Suburban issue in Cosmos' favor,
however, concluding that the applicant is aware of and will adequately meet the
programming tastes, needs, and interests of its proposed service area. In reaching this result, the examiner relied
on the following determinations: (1) That "Cosmos has operated WSFA-TV for
the past 9 years and is presently serving over half a million persons with
satisfactory programming"; (2) that "the proposed gain area is
contiguous to [WSFA-TV's] present service area, and * * * is composed of the
same kind of communities and rural areas that WSFA-TV presently serves";
(3) that "Cosmos does not intend to provide programming to serve Columbus
and Georgia"; (4) "that Cosmos should not be held to the stringent
standards of Minshall [ Broadcasting Company, 11 F.C.C. 2d 796, 12 R.R. 2d 502
(1968)] because to do so would require an application of the doctrine in
retrospect and would be extremely disruptive of hearing procedures"; (5)
that WSFA-TV's proposed grade B coverage of portions of Georgia and Florida is
merely incidental to the applicant's primary intention of serving people in
eastern Alabama; and (6) that due to the similarity between WSFA-TV's present
and proposed service areas, "Cosmos was justified in deciding that its
planned programming did not necessitate a change, and that such programming was
sufficiently flexible and diversified to serve the needs of the gain
area." With respect to the applicant's conceded failure to ascertain the
needs and interests of Negroes who constitute 35 to 40 percent of the
population in the gain area, the examiner concluded that "Cosmos is aware
of the problems that are embraced in the Negro problem, not only in the State
of Alabama, but in the entire United States"; and that Cosmos is concerned
with such problems. The examiner
further concluded that respondents failed to establish the existence of Negro
needs as distinguished from white needs.
In his view, "it would be procedurally defective to require Cosmos
to rebut a presumption that has not been established in the record."
Finally, [*749] the admitted failure of Cosmos to include
rural areas in its program contacts, even though the gain area is largely
rural, was excused by the examiner on the ground that "the gain area is
contiguous to, and very similar to, [WSFA-TV's] present service area. * *
*" We disagree with the examiner's ultimate conclusion and with the
several determinations upon which that conclusion is based.
32. First, we disagree with the examiner that it
"would be extremely disruptive of hearing procedures" to apply the
stringent standards of the Minshall case to Cosmos' Suburban showing. In our opinion, the so-called Minshall
standards clearly apply to the Suburban showing in this case, and their application
would not have disrupted the hearing.
Minshall was released on February 28, 1968, while the hearing in this
proceeding was in progress. At that
time, Cosmos had already submitted its evidence and presented its case under
the Suburban issue. However, Minshall
was not an innovation in communications law; it was merely a restatement of the
Commission's fundamental policy concerning the ascertainment of community needs
by broadcast applicants. See Sioux Empire
Broadcasting Co., 16 F.C.C. 2d 995, 998, 15 R.R. 2d 961, 966 (1969). See also
Southern Minnesota Supply Company (KYSM), 18 F.C.C 2d 824, 826, 16 R.R. 2d 950,
953 (1969), review denied F.C.C 70-99, released January 30, 1970. The four basic steps expected to be followed
by applicants in ascertaining needs, listed by the Commission in Minshall, n41 are also set forth in essentially the same language
at paragraph 13 of the Commission's report and order on television program
forms, which was released on October 10, 1966, 1 month before Cosmos' Union
Springs application was designated for hearing. Amendment of Section IV (Statement of Program Service) of
Broadcast Application Forms (Television Program Form), 5 F.C.C. 2d 175, 178, 8
R.R. 2d 1512, 1517 (1966). Significantly, the Commission in Minshall cited the
"Report and Order," 11 F.C.C. 2d at 797, 12 R.R. 2d at 503. The
revised program form became effective on December 1, 1966, before the Grady
amendment was filed on June 13, 1967.
Cosmos was not required to amend its program proposal along with its
site amendment because it was seeking a major change in facilities and was not
proposing "a substantial change in programming.? 5 F.C.C 2d at 177, 8 R.R. 2d at 1517. Nevertheless, the fact that
Cosmos filed its original application prior to the revision of the television
program form does not relieve the applicant of meeting the established
standards for ascertainment of needs set forth in Minshall and in the earlier
"Report and Order." Risner Broadcasting, Inc., 13 F.C.C. 2d 781, 783,
13 R.R. 2d 912, 916 (1968). In view of all the foregoing circumstances, the
Board believes that the Minshall standards apply in this case and that a remand
of the Cosmos application, as [*750] the applicant requests, would be
inappropriate. n42 See Heart of Georgia Broadcasting Company, Inc., 19
F.C.C. 2d 20, 29-31, 16 R.R. 2d 1134, 1145-1148 (1969), review denied F.C.C.
70 , released February , 1970; Southern Minnesota Supply Company
(KYSM), supra, 18 F.C.C. 2d at 829, 16 R.R. 2d at 956. In this regard, it is
noted that two of Cosmos' program surveys were conducted after the release of
the report and order on the television program form, and the initial decision
herein was released almost 1 year after the release of the Minshall opinion. Compare Sioux Empire Broadcasting Co.,
supra.
n41 The four basic steps are:
(1) Full information on steps taken
to become informed of the real needs and interests of the area to be served;
(2) Suggestions received as to how the
proposed station could help meet the area's needs;
(3) Evaluations of suggestions; and
(4) Programming proposed to meet the
ascertained needs as they have been evaluated.
See Public Notice re Ascertainment of Community Needs by Broadcast
Applicants, F.C.C. 68-847, 33 F.R. 12113, 13 R.R. 2d 1903, released Aug. 22,
1968.
n42 In its reply brief, Cosmos
argues that if its application cannot be granted on the basis of the present
hearing record, that "this case * * * be remanded for the same reasons
expressed in Sioux Empire [supra]." The Board notes that in two recent
opinions the Commission permitted two broadcast applicants to amend their
Suburban showings prior to initial decision to conform to the principles set
forth in City of Camden, 18 F.C.C. 2d 412, 16 R.R. 2d 555 (1969) and in the
Commission's "Primer" on ascertainment on community problems (see
note 43, infra). Mace Broadcasting Co.,
F.C.C. 70-155, released Feb. 20, 1970,
F.C.C. 2d ; Community
Broadcasting Company of Hartsville, F.C.C. 70-157, released Feb. 20, 1970, F.C.C. 2d . The action was taken
by the Commission in light of the alleged confusion engendered by Camden and
the Primer. Cosmos' Suburban showing is
deficient in several respects, and the applicant had notice of some of the
deficiencies from the designation order (November 1966) and the remainder from
precedent released prior to the close of the hearing record (July 1968). Finally, Cosmos did not seek to amend its
Suburban showing to conform to Minshall, even though Minshall was released
during the course of the hearing, until it filed its reply to the exceptions to
the initial decision (June 1969). Under
these circumstances, these two Commission actions do not support a remand here.
33. Furthermore, the fact that Cosmos proposes
an extension of WSFA-TV's existing program service into an area shown to be
contiguous and similar to the station's present service area does not relieve
the applicant of its obligation to make an adequate survey of the needs of the
station's proposed service area. City
of Camden, supra, 18 F.C.C 2d at 420, 16 R.R. 2d at 567; WLVA, Inc., 15 F.C.C.
2d 757, 763, 15 R.R. 2d 105, 112 (1968); South Carolina Education Television
Commission (WITV), 20 F.C.C. 2d 342, 17 R.R. 2d 772 (1969). Thus, where an
applicant, such as Cosmos, seeks to improve its existing facilities in order to
serve a substantial amount of new area or population, the fact that the gain
area is shown to be contiguous and essentially similar to the present service
area is not determinative of whether the programming proposal is responsive to
the needs and interests of the new service area. See Norristown Broadcasting Company, Inc., 18 F.C.C. 2d 56, 59,
16 R.R. 2d 421, 425-426 (1969). As the Commission stated in 1966 in the order designating
the instant Cosmos application for hearing: "It is well established that
where an applicant proposes to provide service to new areas, the applicant is
required to demonstrate that it has made sufficient efforts to ascertain the
programming needs and interests of those areas." 5 F.C.C. 2d at 694, 8
R.R. 2d at 981, citing Wometco Enterprises, Inc. v. FCC, 114 U.S. App. D.C.
261, 314 F. 2d 266, 24 R.R. 2072 (1963). Even though the efforts to ascertain
the needs and interests of the outlying areas need not be as extensive as for
the principal city, nevertheless an adequate survey including a fair cross
section of the residents and community leaders in the gain area is
required. See South Carolina
Educational Television Commission (WITV), supra, 20 F.C.C.2d at 345, 17 R.R. 2d
at 777; Long Island Video, Inc., 14 F.C.C. 2d 327, 14 R.R. 2d 466 (1968); City
of New York Municipal Broadcasting System (WNYC), 11 F.C.C. 2d 287, 12 R.R. 2d
189 (1968). Cf. WKYR, Inc. (WKYR), 3
F.C.C. 2d 132, 144, [*751] 3 R.R. 2d 1, 17 (1964), review denied F.C.C.
64-984, affirmed sub nom. Allegany
County Broadcasting Corp. v. FCC, 121 U.S. App. D.C. 166, 348 F. 2d 778, 5 R.R.
2d 2067 (1965). Cosmos' burden of proof under the Suburban issue in this
proceeding must be measured against this general standard of adequacy and
sufficiency.
34. With respect to the merits of Cosmos'
showing, it is our opinion that Cosmos failed to sustain its burden of proof
under the Suburban issue. In short, a
review of the record evidence shows that the applicant's investigation of the
gain area was not careful, and that the results obtained were not
meaningful. City of Camden, supra, 18
F.C.C. 2d at 420, 16 R.R. 2d at 567. There are four basic deficiencies in
Cosmos' Suburban showing. First, Cosmos
did not show on the record that it surveyed the general listening public in any
of the communities within WSFA-TV's proposed service area. See Southern Minnesota Supply Company
(KYSM), supra. Although the applicant maintains in one of its hearing exhibits
that numerous individual residents in the gain area were contacted by Cosmos'
representatives in January 1966, and in April 1967 (Cosmos exhibit 3, app. B),
neither the number of people contacted nor the length of the alleged
conversations nor the suggestions received (if any) are in the hearing
record. Thus, the record evidence is
limited to a select group of community leaders in a number of Alabama
communities. This is clearly inadequate
to meet the well established requirements of the Commission's Suburban
policy. See Vernon Broadcasting Co., 12
F.C.C. 2d 946, 950-951, 13 R.R. 2d 245, 251-252 (1968). (Vernon, which couched
in very precise language, was released on May 22, 1968, while the hearing in
this proceeding was still in progress.) The failure of Cosmos, an experienced
broadcaster, to document its alleged survey of the general listening public in
any of the communities it proposes to serve is significant since it has long
been held that the survey sample must cover both the general listening public
and community leaders. See South
Carolina Educational Television Commission, supra, 20 F.C.C 2d at 346, 17 R.R.
2d at 777; Heart of Georgia Broadcasting Company, Inc., supra, 19 F.C.C. 2d at
28, 16 R.R. 2d at 1144, and cases cited therein. In its 1960 En Banc Programming Inquiry, released 6 years before
the Cosmos application was designated for hearing, the Commission proposed
"documented program submissions prepared as the result of assiduous
planning and consultation covering two main areas: First, a canvass of the
listening public who will receive the signal and who constitute a definite
public interest figure; second, consultation with leaders in community
life. * * *" Report and Statement
of Policy Re: Commission En Banc Programming Inquiry, 25 F.R. 7291, 7296, 20
R.R. 1901, 1915 (1960). See Amendment of Section IV (Television Program Form),
supra, 5 F.C.C. 2d at 178, 8 R.R. 2d at 1517. The fact that Cosmos is seeking
an improvement of facilities rather than a new broadcast facility does not permit
the applicant to completely ignore the requirement or excuse it from any
attempt to comply.
35. Second, Cosmos did not, as required by
Commission policy, consult with a representative range of groups, leaders, and
individuals in community lige * * * to give [it] a better basis for determining
the total needs of the proposed service area.
City of Camden, supra, 18
[*752] F.C.C. 2d at 420, 16 R.R.
2d at 566. n43 The applicant's survey of community
leaders was inadequate in several respects.
Thus, the record shows that in some communities, only one community
leader was contacted, and that in others, only two were contacted. The largest number of leaders surveyed (six)
was in Dothan, In one of the communities which the applicant proposes to serve
for the first time was anything resembling a cross-section of any communities
contacted. Nor could it be held that
Cosmos attempted to survey a cross-section of its entire proposed new service
area. While the Commission does not
play a numbers game with respect to community leader surveys, a representative
cross-section of informed community opinion must be made. Vernon Broadcasting Co., supra, 12 F.C.C. 2d
at 951, 13 R.R. 2d at 252. See Martin Lake Broadcasting Company, 21 F.C.C. 2d
180, 18 R.R. 2d 245 (1970). It is clear that Cosmos did not comply with this
requirement. For example, of those
contacted, substantially all were representative, although in limited number,
of the fields of government, business, religion, n44 education, and agriculture. The
most conspicuous omission from the applicant's surveys is its failure to
contact Negroes who comprise approximately 40 percent of the population in
WSFA-TV's grade B gain area. The
applicant concedes that it "made no special effort to ascertain the needs
of the Negro community in the gain area." In fact, no Negroes were
consulted on the subject of their needs and interests. When questioned at the hearing regarding
Cosmos' failure to ascertain the needs of this large group of people, Dixon
Lovvorn, WSFA-TV's program and public relations director, testified that Cosmos
regards the needs and interests of the Negro and white communities of
Montgomery and the surrounding rural area to be basically the same and that
station WSFA-TV's programming is responsive to both communities. According to Lovvorn, the basis of this
belief is the continuing contacts made in the community (i.e., Montgomery) and
the mail and telephone calls received by WSFA-TV concerning programming. However, Lovvorn admitted that, for the most
part, the correspondents and callers do not identify themselves as black or
white, and that the primary purpose of groups, such as the Red Cross, with
which the station maintains continuous contact is not racial at all. Lovvorn testified that Cosmos is aware of
the special problems faced by "the poor economic classes of [the] area,
both Negro and whites" and that WSFA-TV (directs) programs to those
people; however, neither the special problems nor the programs were specified. In further defining the applicant's position
on the alleged homogeneity of needs and interests of WSFA-TV's present and
proposed service areas, Villar testified that it is the station's "policy
to serve the whole community * * * to give coverage to the entire
community."
n43 This principle is consistent
with the Commission's recent notice of inquiry concerning the Ascertainment of
Community Problems by Broadcast Applicants, 20 F.C.C. 2d 880, 34 F.R. 20282
(1969).
n44 Only four white Protestant
clergymen were contacted. This
deficiency is especially noteworthy since Negroes comprise approximately 40
percent of the population in WSFA-TV's grade B gain area. See Capitol Broadcasting Co., 38 F.C.C.
1135, 1139, 5 R.R. 2d 231, 236 (1965).
36. In our opinion, it was improper for the
examiner to impose upon respondents the burden of proving the existence of
particular Negro needs in the gain area.
(See para. 26 of the examiner's conclusions, [*753] 15 R.R. 2d at
598.) Rather the burden was on Cosmos to show that it was aware of the needs and
interests of the people living in the gain area and that it would program to
meet those needs and interests. In this
regard, a broadcast licensee may not assume that the particular needs,
interests, and problems of its white and black audiences are the same. See Capitol Broadcasting Co., supra. n45 See also Washington Broadcasting Co., 1 F.C.C. 2d
25, 26, 5 R.R. 2d 653, 655 (1965).
Cf. Nondiscrimination Employment
Practices of Broadcast Licensees, 18 F.C.C. 2d 240, 16 R.R. 2d 1561 (1969).
Cosmos' admitted failure to undertake to ascertain the special needs of Negroes
in the gain area is not cured by the applicant's past operation of
WSFA-TV. Cf. South Carolina Educational
Television Commission (WITV), supra.
Even if the record showed that WSFA-TV is aware of and responsive to
Negro needs in its present service area, that would be insufficient to show
awareness of the special needs of Negroes in the gain area. City of Camden, supra. Cf. Washington Broadcasting Co., supra. In any
event, the record evidence does not support the examiner's conclusion that
Cosmos is presently "aware of the problems that are embraced in the Negro
problem," and that its programming reflects this awareness. The fact is that WSFA-TV proposes to extend
its television service into parts of Alabama, north, south, east, and west of
Montgomery, and into parts of Georgia and Florida not now served by that
station. The record shows that Cosmos
has not undertaken to ascertain the particular needs of the Negroes in the gain
area. Since Negroes comprise a
substantial portion of the gain area population, Cosmos' failure in this
respect must be accorded decisive weight.
Capitol Broadcasting Co., supra; City of Camden, supra. See Santa Fe
Television, Inc., 18 F.C.C. 2d 741, 744, 16 R.R. 2d 934, 938 (1969); Click
Broadcasting Co., 19 F.C.C. 2d 497, 503, 17 R.R. 2d 164, 172 (1969).
n45 In Capitol Broadcasting the
Commission held as follows with respect to the required ascertainment of needs
of Negroes in a broadcaster's service area: regarded Jackson as two
communities, one white and one Negro; that rather it has
"The applicant urges that it
has never designed its programming so as to be of interest to the entire
area. There is no requirement that a
licensee divide his programming so that, in Jackson for example, 55 percent
would be of interest to the white community and 45 percent to the Negro, and
more than there is a requirement that each minority group (e.g., Irish, Jewish,
Polish, etc.) be afforded a specified portion of a Chicago TV station's time,
proportionate to the group's percentage of the total Chicago population. Such a pattern of operation would be
"broadcast segregation." Further, it would be based upon the false
premise that network or local programming of general interest does not serve
the needs and interests of the Negro or some other minority group.
"But the applicant is incorrect
in its assertion that the foregoing consideration is dispositive of the
petitioners' contentions. A licensee's
programming must be designed in good faith to serve his area. Thus, if a licensee had one rotating church
program and never presented Negro churches even though they represented half
the churches or population in the area, the obvious question is presented
whether the licensee is seeking in good faith to serve his area's needs or
simply following or acquiescing in a deliberate exclusionary pattern. The same consideration would be true in
other programming areas. If, for
example, a licensee never sought to ascertain or serve the needs of
predominantly Negro colleges in this area -- even though there were a large
number of such colleges -- the question is presented whether the licensee can
be said to be equitably and in good faith meeting his obligations under the
public interest standard." See Report and Statement of Policy Re:
Commission's En Banc Programming Inquiry, 20 Pike and Fischer, R.R. 1901. [ 38 F.C.C. at 1139, 5 R.R. 2d at 236.]
Capitol Broadcasting was released on
May 20, 1965, almost 5 months before Cosmos filed its Union Springs
application, and over a year and a half before the Cosmos application was
designated for hearing. See paragraph
32, supa.
37. Another major deficiency in the applicant's
community leader surveys is that Cosmos neglected to consult with representatives
of the following groups in the gain area: Women, labor organizations, [*754]
health and welfare leaders, non-Protestant religious groups, charitable
organizations, social organizations, and professional groups. See Vernon Broadcasting Co., supra.
Likewise, there is no indication that young people or representatives of youth
groups were consulted. See Southern
Minnesota Supply Company (KYSM), supra, 18 F.C.C. 2d at 827, 16 R.R. 2d at 954.
This is clearly inadequate, even though Cosmos is only seeking to expand its
existing facilities, rather than operate a new station. See paragraph 30, supra. Moreover, although the applicant's own
evidence shows that the gain area is predominantly rural, no rural contacts
were made. "The Commission has
long held that a broadcast licensee is obligated to serve his entire service
area, and not just his city of license * * *.
Legally and logically implicit in this obligation to serve the entire
service area is the obligation to survey the needs and interests of that
area." Southern Minnesota Supply Company (KYSM), supra, 18 F.C.C. 2d at
825, 16 R.R. 2d at 952. See Petersburg Television Corp., 19 F.C.C. 451, 10 R.R.
567, reconsideration denied 10 R.R. 5840 (1954); Heart of Georgia Broadcasting
Company, Inc., supra, 19 F.C.C. 2d at 27, 16 R.R. 2d at 1143. Since WSFA-TV's
programming must be designed to meet the needs and interests of all areas to be
served by the station, Cosmos' failure to make meaningful ascertainment efforts
in the gain area is a significant deficiency warranting denial of the
application. Cf. Southern Minnesota Supply Company (KYSM),
supra.
38. Third, Cosmos' three survey efforts failed
to elicit substantive suggestions concerning the needs and interests of the
gain area. In its surveys, Cosmos
concentrated almost exclusively on program preferences rather than community
problems. This is clearly inadequate
under established standards (see e.g., Minshall Broadcasting Co., supra) and
constitutes a major defect in the applicant's survey efforts even though Cosmos
is merely seeking an improvement of existing facilities (see South Carolina
Educational Television Commission (WITV), supra). The few suggestions received from the interviewees were general
and cannot in any sense be characterized as meaningful reflections of area
needs or problems. Underlying Cosmos'
whole approach in its program surveys is an assumption, which is unsupported by
the record evidence, that there is a need for WSFA-TV's present programming in
the gain area. The applicant's surveys
were all conducted on the basis of this assumption. In the main, then, the record shows that the applicant's surveys
were "not designed to first elicit information identifying the needs of
the [gain] area and then to help the applicant develop the manner in which the
* * * station might help meet those needs.
Moreover, in failing to obtain information concerning the needs of the
[gain] area, there could have been no evaluation of the suggestions, either subjectively
or objectively, and the record reflects none." Southern Minnesota Supply
Company (KYSM), supra, 18 F.C.C. 2d at 829, 16 R.R. 2d at 956.
39. Finally, the applicant failed to propose any
programming whatsoever to meet the needs and interests of the gain area. Again, the fact that Cosmos' primary
programming and survey obligations is to its city of license and not to
outlying areas does not diminish this deficiency, especially since no
programming at all is proposed to meet the needs of the gain area. Since Cosmos filed its original application
in [*755] October 1965, it has relied on the following basic premises to
support its proposed programming for the gain area: (1) That there is an
assumed need for WSFA-TV's network and local programming in most of the gain
area; (2) that while no substantial changes will be made in WSFA-TV's basic
programming structure, the station's news and informational programming will be
expanded to include matters of interest to the gain area; and (3) that
WSFA-TV's staff has had years of experience in operating the station, thus
providing them with knowledge of the needs and interests of the general
area. See paragraph 8 of the
"Designation Order," 5 F.C.C. 2d at 693-694, 8 R.R. 2d at 981. The
Commission rejected these premises as insufficient to warrant denial of a
requested Suburban issue in November 1966; the Board rejected them in January
1968, when it refused to delete the Suburan issue from this proceeding (see
par. 1, supra); and the Board must reject them again since they are without
support on the hearing record. In 1960,
the Commission specifically admonished applicants against preplanned program
format submissions. En Banc Programming
Inquiry, supra, 25 F.R. at 7296, 20 R.R. at 1915. In City of Camden, supra, the Commission stated that although an
"applicant does not have to devote 100-percent of his programming to
meeting specific [area] needs and problems * * * some significant portion of
the programming must be responsive to the [area] needs as determined by the
applicant in * * * his survey." 18 F.C.C. 2d at 421, 16 R.R. 2d at 568. In
this case, no interests of the gain area.
The applicant merely committed itself to "incorporate the needs and
interests of the gain area into [WSFA-TV's] present programming
structure." This is clearly unsatisfactory in view of past Commission and
Review Board pronouncements. n46 In any event, Cosmos, having, in the first instance,
failed to make proper survey efforts and elicit meaningful suggestions as to
the needs and interests of the gain area, had no basis at all upon which to
evaluate suggestions, even subjectively, and to formulate a programming
proposal in response. Thus, on the
basis of the applicant's showing, the Board is unable to determine whether
WSFA-TV's proposed programming (which is really WSFA-TV's present programming)
will be responsive to the needs and interests of the people in the proposed
gain area.
n46 See City of Camden, supra;
Public Notice Re: Ascertainment of Community Needs by Broadcast Applicants,
supra; Minshall Broadcasting Company, supra; Amendment of Section IV
(Television Program Form), supra; En Banc Programming Inquiry, supra; Heart of
Georgia Broadcasting Company, Inc., supra; Southern Minnesota Supply Company
(KYSM), supra.
40. In conclusion, since Cosmos failed in several
respects to meet its burden of proof under the Suburban issue, a grant herein
would not be in the public interest and its application for modification of
facilities on VHF station WSFA-TV in Montgomery, Ala., will be denied.
41. Accordingly, It is ordered, That the
application of Cosmos Broadcasting Corp. (WSFA-TV) (BPCT-3643) for a
construction permit to relocate its transmitter site and to make other changes
in the technical mode of operation Is denied.
DEE W. PINCOCK, Member.
APPENDIX:
APPENDIX
Rulings on
Exceptions of Cosmos Broadcasting Corp. (WSFA-TV)
|
Exception No. |
Ruling |
|
|
1, 17, 19
(a) and (b). |
|
|
|
Granted in substance. See pars. 19 and 20 of this decision. Thus,
we have determined that WYEA-TV would have a distinct reception advantage
over WSFA-TV in the Columbus market due to the comparative quality of the signals
being delivered by the 2 stations in Columbus and vicinity. WYEA-TV would also have the advantage over
WSFA-TV of community interest and loyalty.
The Columbus-Phoenix City area is the most populous segment of
WSFA-TV's grade B gain area; therefore, the relative signal strengths of
WSFA-TV and WYEA-TV in that area take on added significance. Altogether, the engineering evidence in
the record indicates that the impact of the Cosmos proposal on WYEA-TV would
be minimal. Finally, the
typographical error in the last sentence of par. 28 of the examiner's findings
is corrected in accordance with exceptor's request. |
||
|
2 |
Denied as being without decisional
significance. Cf. Central Coast
Television (KCOY-TV), 14 F.C.C. 2d 985, 14 R.R. 2d 575 (1968), review denied
sub nom Central Coast Broadcasters,
Inc. (KCOY-TV), F.C.C. 69-614, released June 9, 1969, reconsideration
dismissed F.C.C. 69-840, released Aug. 1, 1969, remand denied F.C.C. 70-137,
released Feb. 5, 1970. |
|
|
3 |
Denied. The community of interest between Phoenix
City, Ala., and Columbus, Ga., was clearly established on the hearing
record. See tr. 977, 984-987. The examiner's finding in this regard at
par. 33 of the initial decision, to which exception is taken, is clearly
relevant to the UHF impact issue in this proceeding since the issue is
concerned with impact on UHF television service in WSFA-TV's grade B gain
area, and the "Columbus-Phoenix City market" is part of that gain
area. See pars. 12-26 of this
decision. |
|
|
4, 15 |
Denied. The examiner's findings are adequately
supported by the record evidence. |
|
|
5 |
Granted. The erroneous spelling of G. Richard
Shafto, president of Cosmos at the time of the hearing, is corrected. The record evidence does not support the
examinter's finding at par. 35 of the initial decision that "NBC
encouraged the prosecution of the WSFA-TV Union Springs application."
See tr. 913. Nor does the record
support the finding in the same paragraph that "total audience increase
is the most important factor in a network rate increase." See tr. 942. The record shows that several factors,
including total audience increase, determine whether there will be a network
rate increase. |
|
|
6, 7 |
Denied. WSFA-TV's present share of revenues in the
Montgomery market is certainly relevant to the UHF impact issue. The VHF's competitive stance vis-à-vis
those of the UHF's provides some objective basis for predicting the future
for the UHF stations operating in Montgomery. See par. 10 of this decision.
Cf. our ruling on Cosmos exception 3. |
|
|
8, 9, 10 |
Granted in
substance as reflected in pars. 16-20 of this decision. |
|
|
11, 12, 14 |
Denied as being without decisional
significance. |
|
|
13, 18,
19(c) |
|
|
|
Granted
in substance. See pars. 19 and 20 of
this decision. See also ruling on Cosmos exception 5. Ernest Cly's analysis of network rates
(Cosmos exhibits 17 and 17A) also refutes respondents' contention that the
Cosmos proposal would substantially diminish WYEA-TV's chances for a network
rate increase. |
||
|
16 |
Granted. The record evidence does not support the
examiner's finding at par. 76 of the initial decision that Cosmos "will
attempt to have its program schedules carried in the Columbus newspapers and
other newspapers serving the gain area." Rather, the evidence shows that
Cosmos would hope to have WSFA-TV's schedule carried in newspapers in the
gain area. See tr. 90. Cosmos' Vide President, Carter Hardwick,
also testified that newspaper publication "is a judgment to be left to
the newspaper and its evaluation of reader demand." Id. See also par. 18 of this decision (Cosmos'
plans for service to Columbus). |
|
|
20, 21 |
Granted
in substance for the reasons stated in pars. 12-26 of this decision. |
|
|
22 |
Denied
for the reasons set forth in pars. 32-39 of this decision. |
Rulings on Joint
Exceptions of WTVY, Inc., Martin Theatres of Georgia, Inc., and Eagle
Broadcasting Co. to Findings of Fact
|
Exception No. |
Ruling |
|
|
1 |
Granted. See par. 6 of this decision. |
|
|
2 |
Denied. See pars. 7-26 of this decision. |
|
|
3 |
Denied. The examiner's finding is adequately
supported by the record evidence. |
|
|
4, 5 |
Granted
to the extent that the examiner should have considered and made findings on the
evidence prepared by Charles H. Smith in connection with the UHF impact
issue. Denied in all other respects
since Smith's study contained several deficiencies, rendering it inadequate
(see pars. 10 and 11 of this decision).
Smith's expert qualifications are a matter of record and need not be
repeated at length in this decision or in the initial decision. |
|
|
6, n1 7,
8, 9, 10, 11, 12, 13, 14. |
|
|
|
Granted
in part and denied in part. See pars.
8-11 of this decision. |
||
|
15 |
Denied. The examiner makes essentially the
findings requested in pars. 36 and 37 of the initial decision. The public interest benefits of the Cosmos
proposal are listed in par. 6 of this decision. Respondents' exception not-withstanding, Cosmos was under no
obligation to show a "need to enlarge WSFA-TV's existing dominance of
the Montgomery market." Compare Television Corporation of Michigan v.
FCC, 111 U.S. App. D.C. 101, 294 F. 2d 730, 21 R.R. 2107 (1961). Rather, the burden was on respondents to
prove substantial adverse impact on UHF television service in WSFA-TV's
proposed service area. See par. 3 of
this decision. |
|
|
16 |
Denied for the reasons stated in
par. 10 of this decision. |
|
|
17 |
Denied. While Grisham conducted a survey of the
Columbus market, the record shows major deficiencies in the survey, rendering
it inadequate as a means of proof.
See par. 18 of this decision. |
|
|
18 |
Denied. While UHF television channels are
allocated to Columbus and Dothan, respondents failed to prove that these allocations
would be adversely affected by the Cosmos proposal. In particular, there is no evidence in the record to support
respondents' position with respect to channel 54 in Columbus, and since
respondents bore the burden of proof under the impact issue, this failure of
proof if fatal. In fact, the only
objective evidence concerning channel 54 is Charles Grisham's un-contradicted
testimony that a 4th television station in Columbus could not be successful
with or without a grant of the Cosmos application. See tr. 798. |
|
|
19 |
Denied, See par. 18 of this
decision. |
|
|
20, 32 |
Denied as being without decisional
significance. |
|
|
21 |
Granted. See pars. 22 and 23 of this decision. |
|
|
22 |
Denied for
the reason stated in par. 23 of this decision. With respect to Gala's
estimated first year expenses, see pars. 16 and 18 of this decision. In our opinion, it would be improper to
use Grisham's expense estimates for station WYEA-TV (channel 38) together
with Dr. Porter's revenue estimates for station WTRT-TV (Channel) 54) in
order to arrive at a break-even point for station WYEA-TV. The bases for each of the estimates was
shown to be unreliable. |
|
|
23 |
Denied. We do not believe that it would be appropriate
in this case to compare the professional qualifications of the respective
expert witnesses in resolving the UHF impact issue. Both Dr. Robert Porter and Mr. Ernest Clay were shown on the
record to be qualified to testify on the question of UHF impact. Dr. Porter
may have a more extensive formal education and more background in broadcast
research than Mr. Clay; however, it is undisputed that Clay was in fact
qualified at the hearing as an expert on "the analysis, evaluation and
development of television audience survey data and techniques." Second,
regardless of qualifications, Clay pointed to several major deficiencies in
Dr. Porter's reports which, in the end, proved Dr. Porter's entire analysis
of UHF impact in Columbus to be suspect.
See pars. 22-25 of this decision. |
|
|
24, 25, 26 |
Denied. See par. 25 of this decision. |
|
|
27, 28 |
Denied. We have concluded on the basis of all the
record evidence, that Clay's 8-percent loss estimate is more reasonable than Dr.
Porter's 23 percent loss estimate. In short, the several major deficiencies
in the Spindletop reports render the loss estimates contained therein
suspect. Clay's estimate is more
reasonable, and therefore more acceptable, because his analysis of audience
and revenue losses, while far from perfect, is more scientific and careful
than Dr. Porter's. See para. 22-25 of
this decision. The 3 market
situations alleged by respondents to be most similar to Columbus were
actually shown to be dissimilar by Clay in Cosmos exhibit 16. Therefore, the 21-percent loss figure
urged by respondents and derived from the 3 market average is not an accurate
measure of potential impact in this case.
Finally, the respondents, and not Cosmos, had the burden of proof
under the UHF impact issue; and their failure of proof in regard to estimated
losses for a UHF station in Columbus is decisive under the issue. |
|
|
29 |
Denied. Respondents did not prove that the Cosmos
proposal would substantial impair or jeopardize the proposed operation of
channel 38 in Columbus. See pars.
12-26 of this decision. Assuming that
WYEA-TV's anticipated network revenue will almost equal the line charges to
A.T. & T., this fact standing alone or in concert with the other facts of
record, does not constitute sufficient grounds for concluding that the Cosmos
proposal would cause substantial adverse impact on WYEA-TV's entire proposed
operation. In any case, WYEA-TV's
line charges and starting network rate will be the same regardless of the
Cosmos proposal. |
|
|
30 |
Granted. See pars. 32 and 33 of this decision. |
|
|
31 |
Granted in substance. See par. 28 of this decision. |
|
|
33 |
Granted. See pars. 37 and 39 of this decision. |
|
|
34 |
Granted
in substance as reflected in pars. 34-39 of this decision. |
Rulings on Joint
Exceptions of WTVY, Inc., Martin Theatres of Georgia, Inc., and Eagle
Broadcasting Co. to Ultimate Findings and Conclusions
|
Exception No. |
Ruling |
|
1 |
Granted. See pars. 3 and 6 of this decision. |
|
2 |
Granted. The examiner's characterization of station
WYEA-TV as established is erroneous.
The station is authorized to operate but is not yet on the air;
therefore, it is not an established station.
Nevertheless, respondents failed to prove that the Cosmos proposal
would prevent WYEA-TV from going on the air or that it would seriously impair
or jeopardize its chances for success as a primary NBC affiliate and as the
3d televisionstation in Columbus. |
|
3 |
Granted
to the extent indicated in footnote 21 to this decision; denied in all other
respects for the reasons stated in pars. 7-11 of this decision. |
|
4 |
Denied. See ruling on respondents' exception 18 to
findings of fact. |
|
5 |
Denied. See pars. 19 and 20 of this decision. |
|
6 |
Denied
for the reasons set forth in pars. 22-25 of this decision. See also ruling on respondents' exceptions
23, 27, and 28 to findings of fact. |
|
7 |
Denied. See pars. 3-27 of this decision. |
|
8, 9, 14 |
Granted. See pars. 34-39 of this decision. |
|
10 |
Granted. See par. 32 of this decision. |
|
11, 12, 13 |
Granted. See par. 36 of this decision. |
|
15 |
Granted
in part and denied in part as reflected in the whole of this decision. |
Rulings on
Exceptions of the Broadcast Bureau
|
Exception No. |
Ruling |
|
|
1 |
Denied. The
examiner's finding in par. 40 of the initial decision concerning the future
of channel 54 in Columbus, is adequately supported by the record evidence. See
ruling on respondents' exception 18 to the examiner's findings. |
|
|
2 |
Denied. The
record evidence is directly contrary to the Bureau's proposed additional
finding. See tr. 1650-1651. |
|
|
3 |
Granted to the extent indicated in par. 13 of this
decision. Denied in all other respects as being without decisional
significance. |
|
|
4 |
Denied. The
examiner's findings at par. 68 of the initial decision adequately reflect the
record concerning this matter. |
|
|
5 |
Granted. See par. 29 of this decision. |
|
|
6 |
Granted to the extent indicated in par. 29 3f this
decision. Denied in all other
respects as being without decisional significance. |
|
|
7,
9, 10, 15, 16, 17 |
|
|
|
Granted in substance. See pars. 28-39 of this decision. However, the record shows that
with respect to the programming suggestions of WSFA-TV's citizens advisory
committee, one programming proposal was, in fact, implemented by the
station. See tr. 518. |
||
|
8,
14 |
Denied. The examiner's conclusion is based on the
record evidence. Respondents did not
prove that Cosmos in-tends to actively solicit advertising revenues in the
WSFA-WYEA overlap area. Cosmos'
principals testified at the hearing that Cosmos does not intend to solicit
local or regional advertising in the Columbus-Phoenix City area. Significantly, this area is the most
populous segment of WSFA-TV's proposed gain area, and, logically speaking,
would provide Cosmos with the most revenue.
While no find determination has been made by Cosmos with respect to
the soliciting of advertising revenue in the remainder of the verlap area,
this does not, as the Bureau argues, establish an intent on the applicant's part to do so. Compare Central Coast Television
(KCOY-TV), supra, 14 F.C.C. 2d at 1002, 14 R.R.2d at 598. |
|
|
11 |
Denied. The
examiner's conclusion is based on the record evidence. See ruling on Broadcast Bureau exception
1. |
|
|
12 |
Denied for the reasons stated in pars. 19 and 20 of
this decision. |
|
|
13 |
Denied. The
Board agrees in substance with the examiner that a comparison of the network
rates of the established VHF stations in Columbus with WYEA-TV's starting
network rate is unwarranted. As the
examiner states, "many variables * * * are involved in the development
of an established television station, such as management, operating
experience, community, loyalty, and others." Moreover, NBC did not
consider the network rates of the Columbus VHF stations in setting the
starting rate for WYEA-TV. See ruling
on Broadcast Bureau exception 3. |