Requests: Change Station Location to Mount Oso, Calif. For Modification of License
FEDERAL COMMUNICATIONS COMMISSION
7 F.C.C.2d 61 (1967); 9 Rad. Reg. 2d (P & F) 497
RELEASE-NUMBER: FCC 67-182
February 8, 1967 Adopted
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.
[*61] At a session of the Federal Communications Commission held at its offices in Washington, D.C., on the 8th day of February 1967;
1. The Commission has before it the above-captioned-and-described application and the applicant's request for a waiver of section 73.203(b) of the Commission's rules to permit acceptance and grant of the application.
2. The applicant, licensee of FM broadcast station KOSO, proposes to change the station location from Patterson to Mount Oso, Calif. Mount Oso is more than 25 miles from the city where the channel is assigned (Turlock, Calif.) in the Commission's Table of FM Assignments. Section 73.203(b) of the rules permits the use of a channel in an unlisted community only when that community is within 25 miles of the place where the channel is assigned.
3. In support of the request for waiver the applicant cites section 73.206(b) of the rules which states that a class B station "is designed to render service to a sizable community, city, or town, or to the principal city or cities of an urbanized area, and to the surrounding area." The applicant states that neither Turlock (population 9,116) nor Patterson (population 2,246) are principal cities and it is anomalous for KOSO to be identified with either while the station is actually situated in a much better known, famous, and more prominent place, and is already associated in the public eye with such place, because of the station's call letters and transmitter-antenna site. According to the applicant, the station is programmed as a "good music" facility with a minimum of interruptions on the hour and half hour, and the programming thus appeals to a listening audience of far greater scope than the population of Patterson. A precedent is said to exist for the identification of an FM station with a famous mountain, where the mountain is a famous and well-known geographical feature in the area served by the station (station WMTW-FM, Mount Washington, N.H.).
[*62] 4. Even if we were to determine that applicant had provided adequate justification exceeding the 25-mile limitation of section 73.203(b), it would still be necessary to determine that Mount Oso is a community within the meaning of this provision, or that waiver of this requirement is appropriate. Available information indicates that Mount Oso is an unpopulated mountain peak, and as such is not a community within the meaning of our rules (see Seven Locks Broadcasting Co., 3 R.R. 2d 177 (1964) and cases cited therein). Although in one of the cited cases the specified location was found to be a community, even though it then had no population, the community was expected to spring up during construction of a nearby dam. In this case, Mount Oso neither has, nor from the showing provided can we determine that it will have, such resident population. The Mount Washington channel cited by the applicant was in use before adoption of the FM table. Thus, the "grandfathering" into the table of this assignment cannot be considered as a precedent for the requested waiver. Nor has applicant provided any other basis upon which we could conclude that the public interest would be served by granting the waiver request to permit Patterson's only FM station to be assigned to a mountain rather than a community.
Accordingly, It is ordered, That the request of Sierra-Pacific Radio Corp. for waiver of section 73-203(b) of the Commission's rules Is hereby denied and the above-captioned application Is returned to the applicant.
FEDERAL COMMUNICATION COMMISSION, BEN F. WAPLE, Secretary.
The Federal Communications Commission has today forbidden the location of a radio station on a mountain -- Mount Oso, in California. Why? Because our rules require that stations be located in communities, and, as everybody knows, an unpopulated mountain is just not a community. n1
n1 There are apparently to be but two exceptions under the terms of the majority's opinion. (1) An unpopulated area can be a "community" if people reasonably can be expected to "spring up." (2) Mount Washington, in New Hampshire -- the only unpopulated mountain "community" in the table of assignments, where WMTW-FM is located -- will continue to be entitled to a "community" FM station because both it and WMTW-FM were in place before this Commission adopted its Table of FM Station Assignments.
One would be reasonable in his suspicion that this case must have threaded its way to us through a metaphysical morass of geography and bureaucracy. Especially is this so in view of the fact that KOSO's transmitter and antenna have, in fact, been physical situated on Mount Oso for some time, and its call letters rather prominently contain the letters "OSO." n2
n2 The FCC has taken advantage of the fact that words can mean what it wants them to in its electronic palace in wonderland. Thus, "location" has been defined so as to have nothing to do with the geographical placement of a station's studio, transmitter, or antenna tower. Stations are required by our rules to pause for station identification (in the language of our regulation, "(1) on the hour and (2) either on the half hour or at the quarter hour following the hour and at the quarter hour preceding the next hour * * *"). Sec. 73.287(a) (1) and (2). During this pause they must state their call letters and location. And "the station will be considered to be located in * * * [the] community which will be specified in the station license." Sec. 73.210(a)(1). A station need not even have a studio in the community in which it is located. For, although a rule expressly provides that "each station shall maintain a studio, which shall be known as the main studio, in the place where the station is located," the same subsection contains its own built-in waiver: "Provided, That the main studio may be located at the transmitter site whether or not the transmitter site is in the place where the station is located." Sec. 73.210(a)(2).
The applicant's petition contains this rather straightforward explanation of the significance of its request: "By its application herein, petitioner seeks no changes in engineering, financing, ownership, studio location, or programming of station KOSO. Rather, the purpose of the application is merely to compose the station identification of KOSO with the type of programming which the station is carrying, the audience it is serving, and the representations previously made to the Commission with respect to programming matters."
[*63] The owners of station KOSO purchased the station when it was assigned to Turlock, Calif., and was being operated under the call letters KHOM. They subsequently sought and received this Commission's approval to move the station location to Patterson, Calif., and put the transmitting equipment on Mount Oso. This was approved because -- although no station had been assigned to Patterson -- our rules provide that, "A channel assigned to a community listed in the table of assignments [Turlock] is available upon application in any unlisted community [Patterson] which is located within 25 miles of the listed community." Section 73.203(b). Patterson is but 15 miles from Turlock. Mount Oso, we have been informed, is approximately 28 miles from Turlock.
At first blush the uninitiated might think Mount Oso eliminated as a possible location for a station assigned to Turlock because it is 3 miles beyond the 25-mile limit. But, no. That geographical misfortune, like the thousands of other snares in the 1,681 pages of Commission rules, could be removed quite easily. Borrowing from the lore of magic wands we could just waive the rule -- itself a waiver of the table of assignments to communities. Although the somewhat ambiguous and unarticulated criteria for rule waiver have not yet reached the conceptual intricacies of the early common law writs, their understanding and mastery are equally limited to specialists in the practice. In any event, the majority opinion indicates (though without apparent explanation) that the Commission would have been fully prepared to consider a waiver in this case. n3 No, the problem lies not in Mount Oso's vertical distance from Turlock, but in its horizontal distance. For no interpretation of the Commission's rules can change the fact that Mount Oso, is, quite clearly and unmistakably, an unpopulated mountain.
n3 Although the majority does not make its willingness express, it may fairly be implied from the opinion and past incidents of similar waivers. Even in a prior matter involving this very station, as the applicant notes, when "suitable studio facilities could not be found within the community of Patterson itself, * * * it was necessary to apply for and obtain a waiver of the rules to allow the studio to be situated in a location a short distance outside of town." See not 2, supra, for the already liberal rule regarding studio location, waived in the instance cited, which would have permitted KOSO to put its main studio on Mount Oso and have no studio whatsoever in Patterson, the community in which KOSO is located.
It is not unnatural that a station owner might want to place his facilities on a mountain. A station located in a community often has its transmitter and antenna on the highest spot available simply because it increases its signal coverage area. What better high spot than a mountain? n4 Moreover, mountains have always held a fascination for man. The majority apparently accepts the applicant's assertion in this case that Mount Oso -- Spanish for the romantic mountain [*64] bear -- is a "much better known, famous, and more prominent place" than either Turlock or Patterson, Calif.
n4 There is, of course, no suggestion in the majority's opinion that the transmitter and antenna need be torn down and moved from Mount Oso. See note 2, supra.
It was Samuel Francis Smith who, in 1831, wrote the song that prompted all Americans thereafter to cry out,
From every mountain-side
Let freedom ring.
And even if the last line has more recently come into prominence in telephonic communications, we can assume that the author of "America" would have no objection to our today applying the two lines to broadcasting from Mount Oso. It was long before the days of radio that Lord Byron sensed
High mountains are a feeling, but the hum
Of human cities torture
and, if even closer ties with modern-day broadcasting are required, that Walter Savage Landor wrote, "The mountains are our sponsors * * *."
What finer, more appropriate place for a radio station to be located than atop a mountain? How, then, could the majority have come to its conclusion?
We cannot be sure. The opinion gives little illumination -- beyond its insistence upon the strict enforcement of past practice. We may safely assume, however, that its reasons lie somewhere in vaguely conceived notions of "local service" and "community identification." A radio station is supposed to provide local service. It can be located in any community up to 25 miles away, and have its transmitter, antenna, and studio on a mountain, and still provide the requisite local service. But once it identifies with the mountain for purposes of station identification -- so the argument might run -- hopes for local service will vanish.
There are two things wrong with this argument.
(1) This Commission has evidenced almost no concern about the quantity and quality of local programming. I am sure that it is partially as a consequence that many stations provide very little, if any, meaningful local service. Records, program packages, network programming, and advertising are very largely indifferent to locality. In this instance, as the majority acknowledges, KOSO is programmed as a "good music" facility with a minimum of interruptions on the hour and half hour, and the programing thus appeals to a listening audience of far greater scope than the population of Patterson. n5
n5 As the applicant's petition explains: "In accordance with those representations (which are set forth in the application for assignment of license of station KOSO to Sierra-Pacific), KOSO has been operated as a wide area, 'good music' facility. That is, the station features sophisticated music -- ranging from classical to semi-classical to conservative pops -- broadcast with a minimum of interruptions except for news on the hour and half hour. Naturally, there are commercial announcements. However, every effort is made to present them in an unobtrusive and nonirritating manner."
It is a programming "intended to appeal to executives, professionals, students, and others who appreciate good music, and quiet, restrained, but complete and factual news reporting."
What difference does it make, under these circumstances, where a station is located?
(2) If this Commission, or KOSO, were to believe that the station should provide a "community service" to those people living in the communities within its listening area, it easily could do so. Local [*65] news, sports, announcements of local events, interviews and public affairs programs, coverage of local events, etc., could be provided as well by a station identified with Mount Oso as with Patterson -- a "city" of 2,246 people who are obviously but a small proportion of KOSO's total listening audience (within an area up to 85 miles from Patterson).
I have written before of my concern for our failure carefully to think through what we are, and what we are not, doing in regard to local service -- in the KABL and Station Identification opinions. n6 I need not repeat those analyses here. It does seem to me, however, that the Mount Oso case neatly exemplifies the lengths to which our present chaos has carried us. Even from this mountaintop I cannot see the end of the trial. n7
n6 McClendon Pac. Corp., 5 FCC 2d 855, 8 R.R. 2d 1187 (1966); Proposed Amendment of Station Identification Rules (concurring statement) (docket No. 17145, Jan. 25, 1967).
n7 A station must make announcements at renewal time in the community or communities of location so that the public in these areas, if it feels that the station is not serving effectively as an outlet for local expression, can inform the Commission and a local hearing can be held. See 46 U.S.C. sec. 311 (1964), 47 C.F.R. sec. 1.580 (1966).
I do not mean to express disagreement with this concept of local service. On occasion, indeed, it has been so tempered as to permit a station to specifically serve communities in addition to the one in which it is located. For example, the Riverton, Wyo., TV station serves Riverton, Lander, Worland, and Thermopolis. KWRB, FCC 59-991, Sept. 23, 1959. See Petersbury Television Corp., 10 R.R. 567 (1954).
It is highly possible that a station which is not held responsible to serve as local outlet for any community may simply end up not being responsible, period. It would not have to make any announcements in any local area at renewal time. And its obligations to its listening public, insofar as serving local needs and interests are concerned, might become so diffuse as to vanish. In dissenting to the majority's resolution of the issues posed by this case, I do not mean to endorse the principle that a station should have no responsibility to serve the listeners within its signal area. It is just that, in my view, local service is independent of our extraordinarily complex rules regarding station location.
I am principally disturbed because, although the Commission goes to great length to require adherence to the rule here in question, it does not follow through with the much more important task of seeing to it that stations serve as outlets for local expression. To renew the licenses of stations which earn millions of dollars in advertising revenue and provide little or no meaningful local public service programming, while at the same time denying the present request because of some unarticulated pretense of desire for local service, makes little sense. For it is not the form, but the substance, against which our efforts to insure operation in the public interest must, and will, be judged.