In re Applications of PEOPLE COMMUNICATION
CORP. Rensselaer, New York, Requests:
Channel 280A; 3 kW(H); 3 kW(V); 82
feet WABY, INC. Albany, New York,
Requests: Channel 280A; 3 kW(H); 3
kW(V); 158 feet, For Construction Permits
File No. BPH-7435, File No. BPH-7449
FCC 71-1236
72902
December 14, 1971, Released
Adopted December 8, 1971
JUDGES:
By the Commission: (Commissioner
Johnson dissenting and issuing a statement.)
OPINION:
MEMORANDUM OPINION AND ORDER
By the Commission:
(Commissioner Johnson dissenting and issuing a statement.)
1. The Commission has before it the above mutually exclusive
applications and a joint petition by the applicants, filed pursuant to § 1.525(a)
of the Commission's rules, requesting that the Commission approve an agreement
providing for the dismissal of WABY, Inc.'s application (BPH-7449) in return
for the payment of expenses incurred by that applicant in prosecuting its
application. The joint petition and attached affidavits set out a brief history
of the negotiations and support the expenditure of $ 2,098.67 for legal and
engineering fees, $ 56.00 for the publication of required newspaper notices,
and miscellaneous expenses of $ 20.00 for a total of $ 2,174.67.
2. After having examined the petition and attached
affidavits, we find that the applicants have complied with the provisions of
§ 1.525(a). Pursuant to Section 311(c)(3) of the Communications Act of
1934, as amended, we also find, based on the affidavits, that the proposed
reimbursement does not exceed the amount legitimately and prudently expended in
preparing, filing and prosecuting WABY, Inc.'s application. Since an approval
of the agreement would eliminate the need for a hearing and hasten the
institution of local FM service to the community of Rensselaer, we find that
approval would serve the public interest. Furthermore, we find People
Communication Corporation fully qualified to construct and operate the proposed
station and that a grant of the application would serve the public interest,
convenience and necessity.
3. Channel 280A is assigned to Albany, but People
Communication Corporation (PCC) proposes to use the channel in Rensselaer,
pursuant to § 73.203(b) of the rules. Albany has a population of 114,873,
while that of Rensselaer is 10,136 (1970 census). Albany is currently the
community of license for four AM stations, two VHF television stations, three
commercial FM stations and one noncommercial educational FM station. In
addition, two FM construction permits have been granted for Albany. The
following stations also provide 1 mv/m coverage or better to Albany: WGFM(FM)
and WGY(AM), Schenectady, New York, and WFLY(FM), Troy, New York. Rensselaer's
only local broadcast service is WQBK, a daytime-only station owned by PCC. The
use of channel 280A in Rensselaer would provide the first local FM service and
the first aural nighttime service to Rensselaer and would not, therefore,
unduly impede achievement of a fair, efficient, and equitable distribution of
radio service among the several states and communities. Therefore, publication
pursuant to § 1.525(b) of the rules is not required.
4. Accordingly, it is ordered that the joint petition for
approval of the agreement is granted, the application (BPH-7449) of WABY, Inc.,
is dismissed, and the application of People Communication Corporation
(BPH-7435) is granted.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
People Communication Corporation and WABY, Inc. filed
mutually-exclusive applications for a construction permit for a commercial FM
station on Channel 280, assigned to Albany, New York, but also available to
Rensselaer, New York.
Pursuant to Section 311(c) of the Federal Communications Act
and § 1.525(a) of the Commission's Rules, the two parties filed a request
for the Commission to approve their agreement whereby WABY, Inc. would withdraw
its application for the construction permit. This would leave People Communication
Corporation as the sole applicant for the FM construction permit.
The Communications Act states that "The Commission
shall approve the agreement only if it determines that the agreement is
consistent with the public interest, convenience, or necessity. n1 Commission approval of the drop-out agreements like
this one is not supposed to be a pro-forma exercise, merely blindly validating
the private agreements of applicants for radio or TV permits. We must do more
than decide whether the drop-out payment does not exceed the drop-out's
out-of-pocket expenses. n2 There is a specific requirement in
Section 311(c) of the Act that the Commission find that the proposed agreement
affirmatively serves the public interest, convenience, or necessity. The
question is what is the nature of that "public interest" standard.
n1 47 USC § 311(c)(3).
n2 Section 311(c) states that before
the Commission finds the agreement to be in the public interest, it must
determine that the amount paid to the drop-out does not exceed his out-of-pocket
expenses in preparing the broadcast application.
This issue has been before us in the past. In an analogous
situation, where applicants from two different cities or states apply for the
same frequency, our Rules n3 direct us to
determine whether the agreement "would unduly impede achievement of a
fair, efficient and equitable distribution" of radio and TV frequencies
across the country. While there is no such Section 307(b) issue in this case,
the principle is applicable: in making the "public interest"
determination required by Section 311(c), we must assess the over-all effects
of the agreement on the nation's broadcast system.
n3 47 CFR § 1.525(b)(1).
We have consistently held, according to this principle, that
the Section 311(c) "public interest" standard is to be construed to
allow the Commission to go beyond the issues of excessive reimbursement of the
drop-out or of the effects of the agreement on the efficient distribution of
signals across the country. See Woma Typa Broadcasting Co., 1 P&F Radio
Reg. 2d 323 (1963); NBC, Inc., 25 P&F Radio Reg. 67 (1963); Public
Television Corp., 33 FCC 98 (1962); see also dissenting opinions of
Commissioners Cox and Bartley in Clay County Broadcasting Co., 8 P&F
Radio Reg. 2d 409, 410 (1966).
The proposed agreement would leave People Communication
Corporation as the owner of the only two broadcast outlets in Rensselaer, New
York. People is currently the licensee of WQBQ, the town's only AM station.
There are no TV stations in Rensselaer. (The town is located next to Albany and
receives service from three Albany TV stations.) Furthermore, there is no
newspaper in Rensselaer itself. The nearby Troy Record serves as the newspaper
of official notice of the City of Rensselaer.
Rensselaer is a city of 10,316, with an elected City Council
and Mayor. It has its own separate municipal structures, such as tax
collection, police and fire protection and garbage collection. Rensselaer
citizens have their own decisions to make about their city government, separate
and distinct from the affairs of Troy or Albany. Thus it is important that the
news and information they receive about their city be as free and diverse as
possible.
In these circumstances, I cannot find that it would
affirmatively serve the public interest for this Commission to approve the
construction and operation of an FM station by the owners of the sole AM outlet
in the city of Rensselaer. It is sufficient to describe the potentiality for
abuse in order to justify this concern. It would be a disservice to the
citizens of Rensselaer for us to approve an agreement which would result in the
common ownership of the only two outlets of information operating in their
city.
It may be argued that the proper time to raise these
objections is at the time People Communication Corporation files an application
for an FM license. But if the construction permit is granted, the granting of
the license is a purely ministerial act, and the Commission will be unable to
raise these objections at that time. n4 Thus,
there is no alternative to raising these issues in this context, since the
granting of construction permits is delegated to the Commission staff. Perhaps
WABY, Inc., licensee of a station in Albany, the drop-out, should not be
granted a permit for this FM station. Thus, we should now permit other
applicants from Rensselaer or Albany to file applications.
n4 47 USC § 319(c).
The proper action for this Commission to take would be to
disapprove the agreement, and allow other persons to file applications for this
construction permit. This would be in accordance with sound public policy and
with the procedures outlined in our Rules.
Accordingly, I cannot approve this agreement, and therefore
dissent.