Docket No. 15163 File No. BPCT-3117; Docket No. 15164 File No. BPCT-3176
FEDERAL COMMUNICATIONS COMMISSION
12 F.C.C.2d 1008; 13 Rad. Reg. 2d (P & F) 156
RELEASE-NUMBER: FCC 68-560
May 22, 1968 Adopted
MOMORANDUM OPINION AND ORDER
THE COMMISSION: COMMISSIONERS LEE AND
[*1008] 1. The Commission has under consideration: (a) Petition to reopen
proceedings and admit new applicants, filed March 12, 1968, by Westchester
Corp. (licensee of standard broadcast stations WIXY and WDOK-FM, Cleveland,
Ohio), and pleadings responsive thereto; n1
(b) a Review Board Decision, FCC 67R-131, 7 FCC 2d 680, released April 7, 1967;
(c) a Commission Order, FCC 67-1314, released December 20, 1967, by which the
Commission granted the application for review of Community Telecasters of
Cleveland, Inc.; (d) a petition for leave to amend and to reopen record for
limited purposes, filed May 17, 1967, by Cleveland Broadcasting, Inc.; (e) a
motion to reopen the record, filed December 4, 1967, by Community Telecasters
of Cleveland, Inc.; (f) a petition for leave to amend and to reopen record,
filed December 15, 1967, by Cleveland Broadcasting, Inc.; (g) a joint request
for approval of agreement and dismissal of application, filed December 27,
1967, whereby Cleveland Broadcasting, inc., would dismiss its application and
Community Telecasters of Cleveland would be granted unopposed; (h) an Order,
FCC 68-92, released January 30, 1968, whereby the Commission referred to the
Review Board for its consideration a joint request for approval of agreement
and dismissal of application; (i) a Memorandum Opinion of the Review Board, FCC
68R-66, released February 28, 1968, and (j) petition for waiver of the rules,
filed April 15, 1968, by
n1 Oppositions, filed Mar. 25, 1968, by
Community Telecasters of Cleveland, and Mar. 27, 1968, by Chief, Broadcast
Bureau. In addition, Westchester has
attempted to reply to the oppositions via a pleading styled "Petition for
Waiver of the [47 CFR 1.227] Rules" which accompanied an application for
construction permit for channel 19,
n2 See footnote 1, supra.
[*1009] 2. The position taken by
n3 Absent such reopening and permission to
n4 Since rendered favorably, Memorandum Opinion, FCC 68R-66, released Feb. 28, 1968.
n5 Rhode Island Television Co. v. FCC
(C.A.D.C., 1963), 320 F. 2d 762, 116 U.S. App.
4. We are, however, aware that if the state of
facts postulated by
n6 FCC 68-92, released Jan. 30, 1968.
5. Westchester's argument further postulates,
of course, that
6. We find no good reason demonstrated why
7. It appears that the Review Board has examined the joint request referred to it, has concluded that in all respects it comports with the provisions of 47 CFR 1.525, and recommends that it be granted and the accompany agreement be approved. Upon consideration of the whole record, the Commission adopts the recommendation of the Review Board and concludes that the agreement is consistent with the public interest, convenience, or necessity.
8. Accordingly, It is ordered, that the petition of Westchester Corp. to reopen proceedings and admit new applicants Is denied; that the joint request for approval of agreement and dismissal of application, filed December 27, 1967, by Cleveland Broadcasters, Inc., and Community Telecasters of Cleveland, Inc., Is approved; that the application of Community Telecasters of Cleveland, Inc. (BPCT-3176), for a new UHF television station to operate on channel 19 at Cleveland, Ohio, Is granted; that the application of Cleveland Broadcasting, Inc. (BPCT-3177), for the same authorization Is dismissed; that the Review Board Decision, FCC 67R-131, 7 FCC 2d 680, released April 7, 1967, Is set aside; that the petition of Westchester Corp. for waiver of the rules Is denied; that the remaining pleadings described in paragraph 1, subparts (d), (e), and (f), supra, and the review proceedings provided by the Commission's December 20, 1967, Order, Are dismissed as moot.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING STATEMENT OF COMMISSIONER KENNETH A. COX IN WHICH COMMISSIONER NICHOLAS JOHNSON JOINS
think the Commission, of its own motion, should open this case for further
applications. Both the original parties
violated section 1.65 of the rules. The
party preferred by the examiner and the Review Board, having lost its
preference in the process, has agreed to a compensated withdrawal. The losing applicant will now receive a
grant, despite its rule violation and its cross-ownership problems. I think it is more important to accept new
applications than to expedite a fifth commercial service for