In Re Applications of SOUTHERN BROADCASTING CO.
(WGHP-TV), HIGH POINT, N.C. For Renewal of Broadcast License; FURNITURE
CITY TELEVISION CO., INC., HIGH POINT, N.C. For Construction
Permit for
New Television Broadcast Station
Docket No. 18906 File No. BRCT-574;
Docket No. 18907 File No. BPCT-4302
FEDERAL COMMUNICATIONS COMMISSION
37 F.C.C.2d 1058
RELEASE-NUMBER: FCC 72-890
October 18, 1972 Released
Adopted October 5, 1972
JUDGES:
BY THE COMMISSION: COMMISSIONER HOOKS DISSENTING AND ISSUING A STATEMENT IN
WHICH COMMISSIONER JOHNSON JOINS; COMMISSIONER REID ABSENT.
OPINION:
[*1058] 1. Before
us for consideration is an interlocutory application for review filed May 16,
1972, by Furniture City Television Company, Inc. seeking review of a Review
Board Memorandum Opinion and Order, FCC 72 R-132, 34 FCC 2d 908, released May
9, 1972. n1
n1 Also before us for
consideration are: (a) an opposition to the application for review filed May
23, 1972, by the Broadcast Bureau, (b) a motion to accept late filing and an
opposition to the application for review filed May 24, 1972, by Southern
Broadcasting Co., and (c) a reply to oppositions filed June 5, 1972, by
Furniture City. The other parties have given their consent to acceptance
of Southern's opposition pleading, the disposition of this matter has not been
delayed, and thus Southern's request may be granted.
2. Accordingly, IT IS ORDERED, That the motion
to accept late filing, filed by Southern Broadcasting Company IS GRANTED and
the application for review filed by Furniture City Television Company, Inc. IS
DENIED.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTBY:
HOOKS
DISSENTING OPINION OF COMMISSIONER
BENJAMIN L. HOOKS IN WHICH COMMISSIONER NICHOLAS JOHNSON JOINS
In this comparative proceeding for a
television station, one of the competing applicants has requested inspection of
the other's [presently the station licensee] Annual Financial Reports (FCC
Forms 324) n2 to determine, allegedly, what
portion of the licensee's profits have been plowed back into the station for
public interest programming.
n2 While Forms 324 are "not routinely
available for public inspection" under § 0.457(d) of our rules (47
CFR § 0.457(d)), the Commission has released licensees' Annual Financial
Reports in the context of license battles. See, Carrol Broadcasting Co.
v. FCC, 103 U.S. App. D.C. 346, 436 F. 2d 440 (1958); Cape Cod Broadcasting
Co., 23 F.C.C. 2d 277 (1970).
Although the Commission has not, to
date, utilized profit reinvestment in public service programming as a yardstick
to measure the past performance of an existing licensee, Alianza Federal De
Pueblos [*1059] Libres, 31 FCC 2d 557 (1970), the Court of Appeals
for the District of Columbia has said that it can. Citizens
Communications Center v. FCC, 141 U.S. App. D.C. 109, 436 F. 2d 263, 22 RR 2d
2001 (D.C. Cir. 1970). n3
On Petition for Mandamus in Citizens, the Court indicated that in establishing
a profit reinvestment criterion, the Commission -- if it so desired -- could
proceed on a case-by-case basis rather than explore the imposition of such a
standard via Rule Making proceeding. n4
n3 "[One] test of
superior service should certainly be whether and to what extent the incumbent
has reinvested the profit on his license to the service of the viewing and
listening public." Citizens, supra, at fn. 35.
n4 Citizens Communications
Center v. FCC, U.S. App. D.C. , 449
F. 2d 1201, 22 @RR 2d 2001 (D.C. Cir. 1971).
Moreover, only yesterday, on appeal
of the Commission's Alianza decision, supra, the D.C. Court of Appeals
indicated that it would not "take a position on the merits of whether
reinvestment of profits into community-oriented programming is a relevant
public interest factor" and further maintained that its denial of
Alianza's petition [to immediately require Form 324 disclosure] "intimates
no opinion on that question which, as the Commission concedes, petitioner is
free to raise if and when renewal is granted." n5
n5 Alianza
Federal De Pueblos Libres v. FCC, Case No. 71-1770, slip op. at 2, 3 (D.C.
Cir., October 4, 1972).
Therefore, it is my view that in
this comparative case, where there is no chance that the requesting party is on
an inquisitive fishing expedition, the Commission should have followed the
Court of Appeals' suggestion in Citizens and allowed the challenger an
attempted application of the profit reinvestment standard. Out of this
case we could have learned whether application of such a criterion is even
possible -- let alone invaluable, valueless or somewhere in between.