In Re
SAGINAW CABLE TV CO., SAGINAW, MICH.; SAGINAW CABLE TV CO., TOWNSHIP OF
SAGINAW, MICH.; SAGINAW CABLE TV CO., ZILWAUKEE, MICH.; SAGINAW CABLE TV CO.,
TOWNSHIP OF CARROLLTON, MICH.
For
Certificates of Compliance
CAC-580, CSR-198 MI145; CAC-581,
CSR-200 MI146; CAC-582, CSR-199 MI147;
CAC-583, CSR-201 MI148
FEDERAL COMMUNICATIONS COMMISSION
39 F.C.C.2d 496
RELEASE-NUMBER: FCC 73-121
February 8, 1973 Released
Adopted January 31, 1973
JUDGES:
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.
OPINION:
[*496] 1. On June 6,
1972, Saginaw Cable TV Co. filed the above-captioned applications for four new
twenty-six channel cable television systems to operate from a common head end
and offer service to approximately 91,849 persons in Saginaw, Michigan (the
61st television market); approximately 27,234 persons in Township of Saginaw,
Michigan; approximately 2,072 persons in Zilwaukee, Michigan; and approximately
8,526 persons in Township of Carrollton, Michigan. Saginaw Cable proposed
to offer subscribers the television signals of WKNX-TV (CBS), n1 Saginaw, Michigan; WNEM-TV (NBC),
Bay City, Michigan; WJRT-TV, Flint, Michigan; WJIM-TV (CBS), Lansing, Michigan;
WUCM-TV (Educ.), Bay City, Michigan; WKBD-TV (Ind.), Detroit, Michigan; and
CKLW-TV (Ind.), Windsor, Ontario. Public notice of these applications was
given June 28, 1972. On July 31, 1972, Rust Craft Broadcasting Company,
licensee of Station WEYI-TV, Saginaw, Michigan, filed an "Opposition to
Applications for Certificates of Compliance and Petition for Special
Relief" in which it requested special relief against Saginaw Cable's
proposed carriage of WJIM-TV and CKLW-TV. Thereafter, on August 10, 1972,
Rust Craft and Saginaw Cable entered into a private agreement whereby Saginaw
Cable agreed to withdraw its proposal to carry WJIM-TV and Rust Craft agreed to
withdraw its objections. Saginaw Cable amended its applications on
September 12, 1972, to withdraw its request to carry WJIM-TV, and on September
29, 1972, Rust Craft withdrew its objections. Next, on October 12, 1972, Gross
Telecasting, Inc., licensee of Station KJIM-TV, Lansing, Michigan, filed an
"Opposition to Application for Certificates of Compliance, as
Amended," [*497] directed against CAC-580, CAC-582, and
CAC-583, and Sarginaw Cable and Rust Craft have replied.
n1 The
call letters of this station were later changed to WEYI-TV.
2. The issue presented by the
pleadings is whether Gross is entitled to insist on carriage of WJIM-TV.
WJIM-TV is not a station which Saginaw Cable could normally carry; however, by
virtue of our decision in Booth American Co., 13 FCC 2d 270 (1968), an argument
can be made that carriage of WJIM-TV is grandfathered in Saginaw, Zilwaukee and
Township of Carrollton (Gross does not claim that the Booth decision dealt with
Township of Saginaw, and therefore has not opposed CAC-581). Whatever the
likelihood that it might have prevailed on this claim n2, Saginaw Cable elected to give it
up in order to settle the controversy with Rust Craft. Gross now objects on the
rationale that grandfather rights should be extended to the station involved as
well as to the cable television system, and that Rust Craft should not be
allowed to benefit from its earlier objection. This argument is
unsupported in citation to Commission precedent, and ignores the fact that
Gross is itself apparently attempting to practice the same tactic. Under
the circumstances, we think Saginaw Cable was entitled to enter into a private
settlement with Rust Craft in order to resolve the uncertainties connected with
its applications, and that Gross has no ground upon which it is entitled to
object. Accordingly, Gross' opposition will be denied.
n2 Par. 49. Reconsideration of Cable
Television Report and Order, FCC 72-530, 36 FCC 2d 326, 345, recognized that
WKNX might have a "meritorious" claim, but left its settlement for
special relief.
3. An additional matter
requires mention. In its amendment of September 12, 1972, Saginaw Cable
states that:
"As described in its certification
application, Saginaw Cable proposes at this time to provide one public access,
one educational access and one local government access channel for its system
serving Saginaw, Zilwaukee, Saginaw Township, and Carrollton Township. Each of
these communities, which will be served by a single head end located in
Saginaw, forms part of a single contiguous urbanized area of which Saginaw is
the center culturally, economically, and geographically. The people
living in these communities share common interests and concerns which can best
be served by common access channels. Since Saginaw Cable cannot predict
the extent of use of access channels at this time (there are only 2,072 people
in Zilwaukee and 8,526 people in Carrollton Township according to the 1970
Census), it will make such additional channels available on a system-wide basis
as are justified by the demand for public, educational, and local government
access. In this way, the Commission's intention that access be available
will be satisfied, and no initial user will be subjected to the problem of
reception in the home being dependent upon a channel converter."
We understand this statement to indicate the rate at which
Saginaw Cable intends to make access channels available (we note that it is
proposing to install sufficient channel capacity to allow it to satisfy access
requirements for all four systems), and have no objection to it. See also
par. 90, Reconsideration of Cable Television Report and Order, FCC 72-530, 36
FCC 2d 326, 359. However, should sufficient demand develop, we expect Saginaw
Cable to make additional access channels available.
In view of the foregoing, the
Commission finds that a grant of the above-captioned applications would be
consistent with the public interest.
[*498] Accordingly, IT
IS ORDERED, That the "Opposition to Applications for Certificates of
Compliance and Petition for Special Relief" (CSR-198, CSR-199, CSR-200,
CSR-201) filed July 31, 1972, by Rust Craft Broadcasting Company IS DISMISSED.
IT IS FURTHER ORDERED, That the
"Opposition to Application for Certificates of Compliance, as
Amended" filed October 12, 1972, by Gross Telecasting, Inc., IS DENIED.
IT IS FURTHER ORDERED, That the
above-captioned applications (CAC-580, CAC-581, CAC-582, CAC-583) ARE GRANTED,
and that appropriate certificates of compliance will be issued.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
Today the Federal Communications
Commission illustrates its contempt not only for the public, but for its own
process. The majority grants certificates of compliance to Saginaw Cable
TV Co., proposed operator of four new cable systems in four neighboring
Michigan communities -- all in the 61st television market. I dissent
because the access proposals submitted by these systems do not comport with our
rules.
Saginaw proposes to provide cable
service from a common headend to citizens in Saginaw (approximately 92,000
person), Saginaw Township (approximately 27,000), Zilwaukee (approximately
2,000 persons) and the Township of Carrollton (approximately 8,500
persons). Under our rules, despite the use of a common head-end, Saginaw
Cable thus proposes four separate cable systems, § 76.5(a) Cable Television
Report and Order, 36 FCC 2d 141, 214 (1972), and each system must, according to
our rules, provide each community with three separate access channels -- one
for the public, one for education, and one for government. See §
76.251 Cable Television Report and Order, 36 FCC 2d at 240-242.
Alleging that the provision of such
channels would impose an undue financial burden, and arguing that the four
communities have indicated no demand for separate access facilities, Saginaw
Cable proposes to provide only three access channels for all four communities
combined. The majority simply accepts both Saginaw's allegations and its
proposal despite the fact that the systems' 26 channel capacity could (insofar
as the Commission has been made aware) easily accommodate the proposed carriage
of six broadcast signals plus the full panoply of access channels envisioned by
our rules, and despite the fact that Saginaw Cable has introduced absolutely no
evidence as to its financial situation (e.g., ownership and income), the costs
of complying with our access rules, or the four communities' demands for
access.
The majority relies for this result,
at least in part, upon Stark County Communications, FCC
2d (1973), where the Commission granted -- over my
dissent -- a similar waiver of our access rules. I dissented in that case
because, while I believe some relaxation of our access rules might be warranted
in rare circumstances [*499] where strict compliance would clearly
preclude a cable system from providing any service to the public at all, the
majority could not possibly have made the requisite findings to support a
waiver in that case. But, even assuming, arguendo, that Stark County was
rightly decided -- and assuming, therefore, that the cable systems there involved
could not have afforded to provide broadcast signal carriage to the public had
our access rules been fully enforced -- the instant case is surely
distinguishable.
Here we have four cable systems,
owned by one company, which, given the facts before us, could apparently supply
each of these communities with its own access channels without expanding
channel capacity. (Whether or not such expansion would have been
necessary in Stark County was not clear, though the majority apparently assumed
that it would have been necessary.) Further, the relaxation of our access rules
was justified in Stark County at least in part on the grounds that, given the
very small populations in the various communities, the public's demand for
access was not substantial. While the majority had absolutely no way of
knowing whether such an assumption was valid in Stark County, it is difficult
even to contemplate such an assumption in the instant case. Where, in
Stark County, the total population to be served by all the systems did not
exceed 2,000 persons, in the instant case, Saginaw Cable proposes to serve
communities whose total population is over 120,000.
The majority does not perceive --
let alone discuss -- these differences. This is an excellent example of
how this Commission relies on a bad precedent to create a truly outrageous body
of law.
As I have suggested in the past, see
my dissent in Stark County Communications, supra, because our cable access
rules demand little capital expenditure from the cable industry, they offer the
public little more than the potential for free and open access to what could
well become the most dominant method of communication in America. While
the cable industry could and should do much more to ensure the development of
this potential, such potential is, itself, significant in light of the fact
that America's commercial broadcasters have consistently and stubbornly refused
to allow citizens the free and unfettered opportunity to communicate their
ideas to their countrymen.
While my colleagues have approved
the broadcast industry's stubborn refusal to live up to the demands of the
First Amendment, see Business Executives Move for Vietnam Peace, 25 FCC 2d 242
(1970), reversed, Business Executives Move for Vietnam Peace v. FCC, 450 F.2d
642 (D.C. Cir. 1971), now pending decision in the Supreme Court, they have
recognized, through promulgation of our cable access rules, that the cable
industry -- due to its virtually unlimited channel capacity -- will have to
meet a higher standard. Today's action is, however, yet another step
backward -- a step which greatly increases the public's burden in gaining
access to cable television, and which thus undermines the public's
Constitutional right to free and open debate.
I dissent.