In Re
applications by THE OUTLET CO., PROVIDENCE, R.I. AND W.R.G. BAKER TELEVISION
CORP., SYRACUSE, N.Y. For Transfer of Control and Renewal of License of Station
WNYS-TV, Syracuse, N.Y.
FEDERAL COMMUNICATIONS COMMISSION
36 F.C.C.2d 602
RELEASE-NUMBER: FCC 72-653
JULY 19, 1972
OPINION:
[*602] THE OUTLET CO.,
176 Weybosset Street, Providence, R.I. 02902 W.R.G. BAKER TELEVISION CORP.,
Shoppingtown, Syracuse, N.Y. 13214
GENTLEMEN: This refers to (1) the
application for transfer of control of W.R.G. Baker Television Corporation
licensee of Station WNYS-TV (Channel 9), Syracuse, New York, from the
principals of W.R.G. Baker, Inc., et al. to the Outlet Company and (2) the
license renewal application for this station. On June 8, 1972, the
Syracuse Coalition for the Free Flow of Information in the Broadcast Media
(SCFFI) withdrew its Petition to Deny the WNYS-TV renewal application in view
of its negotiations with transferee which culminated with a "Statement of
Operating Policy" concerning the station's hiring practices and service to
minority groups in the community which "Statement" was filed as an
amendment to the above transfer application.
Agreements such as the above come
within the discretion of the licensee, in meeting in good faith and equitably
the needs and interests of his area. See 1960 Programming Statement, 20
RR 1902 (1960). We believe it appropriate, however, to note one possible
problem in the agreement and to make clear what the licensee's responsibilities
are in this important area. The ultimate responsibility in the matters of
programming and program scheduling must lie with the licensee. As we
emphasized in attachment A to Section IV-B of the transfer application (FCC
Form 315) concerning TV program service:
... broadcasters, mindful of the
public interest must assume and discharge responsibility for planning, selecting
and supervising all matter broadcast by their stations, whether such matter is
produced by them or provided by networks or others.
[*603] There are
provisions in the agreement that are ambiguous and do raise problems in this
respect (e.g., "the selection of topics or issues to be aired by the
respective groups shall be their determination subject only to final review by
station personnel, for compliance with the Communications Act of 1934,";
as stated, compliance with the Act entails not only observance of policies such
as no obscenity or lottery but also licensee responsibility to make the
judgment that the programming does serve the public interest). We
therefore stress that the agreement is to be construed and implemented in
accordance with the above fundamental policy, and that any provision that is in
fact intended to curtail improperly the licensee's discretion to make
programming judgments in the public interest would of course be of no force or
effect.
Upon finding that the transferee is
fully qualified, and that the public interest, convenience and necessity will
be served thereby, the Commission has granted the WNYS-TV renewal and transfer
applications. The grant of the renewal application is made subject to the
condition that the transfer application be consummated within 45 days of the
date of these grants and that the Commission be notified of such consummation
within one day thereafter. Failure to meet this condition will render
these grants null and void, and will cause the renewal application to revert to
pending status.
The grant fee in this transaction is
$95,363.52 based on a consideration of $4,768,176.00. Since the
consideration here is publicly traded stock of the transferee corporation, the
Commission determined that its fair value is its market closing price on the
day the contract supporting the transfer was executed.
Commissioner
Johnson concurring and issuing a statement; Commissioner Hooks not
participating.
BY DIRECTION OF THE COMMISSION, BEN
F. WAPLE, Secretary.
CONCUR:
CONCURRING OPINION OF COMMISSIONER
NICHLOAS JOHNSON
I concur in this item only because
of the assurances I have received that the FCC intends to provide the community
group here with as much programming discretion as that possessed by other
program originators.
Stations regularly, and properly,
delegate programming authority to many program sources: network programming,
independent syndicated programs, and even their own employees. A disc
jockey, for example, may have virtual autonomy in selecting the records he
chooses to play and what he will say about them. Stations rarely
"discharge responsibility for planning, selecting and supervising"
the network programs that come down the line and go out over their transmitters
in any but the most theoretical and superficial sense. Syndicated radio
and television material is also (virtually always) simply carried intact in the
time slot regularly scheduled for it by the station.
In short, a licensee may make a
judgment that the "public interest" will be served by carrying
"The Beverly Hillbillies," or "Issues and Answers," without
making a precise judgment as to each segment. It [*604] may
decide that a disc jockey's daily program is generally in "the public
interest" without passing judgment on each record that will be played, and
pre-clearing a script of all comments to be made.
In other words, a broadcaster -- like
every other businessman or administrator -- may (indeed, must) delegate
programming responsibility in ways that leave him only the most theoretical
control. In some respects -- such as the independence of broadcast
journalism -- the FCC would even encourage practices that would insulate those
with programming responsibility from management intervention in details.
Programming by local community groups might very well be considered in this
light: the less management has to do with "planning, selecting and
supervising" such programming the more the licensee is serving the public
interest.
The need throughout the country is
for more opportunity for community involvement and control of programming, not
less.
Needless to say, a licensee need not
give regular programming time to any given community group. It cannot
barter away its theoretical, "ultimate responsibility" for who, and
what, is broadcasting over its facility.
But it clearly can delegate its
programming responsibility to others. That is all the licensee and
community group have agreed to do in this instance -- and commendably so, in my
judgment. As I read, and understand, the FCC's action today it has
essentially ratified that agreement.
Based on that understanding, I
concur.