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In re Applications of PEOPLE COMMUNICATION CORP. Rensselaer, New York, Requests:

Channel 280A; 3 kW(H); 3 kW(V); 82 feet WABY, INC. Albany, New York,

Requests: Channel 280A; 3 kW(H); 3 kW(V); 158 feet, For Construction Permits

 

File No. BPH-7435, File No. BPH-7449

 

FCC 71-1236

72902

 

December 14, 1971, Released

 

Adopted December 8, 1971

 


JUDGES:

By the Commission: (Commissioner Johnson dissenting and issuing a statement.)


OPINION:

MEMORANDUM OPINION AND ORDER

 

By the Commission: (Commissioner Johnson dissenting and issuing a statement.)

 

1. The Commission has before it the above mutually exclusive applications and a joint petition by the applicants, filed pursuant to   1.525(a) of the Commission's rules, requesting that the Commission approve an agreement providing for the dismissal of WABY, Inc.'s application (BPH-7449) in return for the payment of expenses incurred by that applicant in prosecuting its application. The joint petition and attached affidavits set out a brief history of the negotiations and support the expenditure of $ 2,098.67 for legal and engineering fees, $ 56.00 for the publication of required newspaper notices, and miscellaneous expenses of $ 20.00 for a total of $ 2,174.67.

 

2. After having examined the petition and attached affidavits, we find that the applicants have complied with the provisions of   1.525(a). Pursuant to Section 311(c)(3) of the Communications Act of 1934, as amended, we also find, based on the affidavits, that the proposed reimbursement does not exceed the amount legitimately and prudently expended in preparing, filing and prosecuting WABY, Inc.'s application. Since an approval of the agreement would eliminate the need for a hearing and hasten the institution of local FM service to the community of Rensselaer, we find that approval would serve the public interest. Furthermore, we find People Communication Corporation fully qualified to construct and operate the proposed station and that a grant of the application would serve the public interest, convenience and necessity.

 

3. Channel 280A is assigned to Albany, but People Communication Corporation (PCC) proposes to use the channel in Rensselaer, pursuant to   73.203(b) of the rules. Albany has a population of 114,873, while that of Rensselaer is 10,136 (1970 census). Albany is currently the community of license for four AM stations, two VHF television stations, three commercial FM stations and one noncommercial educational FM station. In addition, two FM construction permits have been granted for Albany. The following stations also provide 1 mv/m coverage or better to Albany: WGFM(FM) and WGY(AM), Schenectady, New York, and WFLY(FM), Troy, New York. Rensselaer's only local broadcast service is WQBK, a daytime-only station owned by PCC. The use of channel 280A in Rensselaer would provide the first local FM service and the first aural nighttime service to Rensselaer and would not, therefore, unduly impede achievement of a fair, efficient, and equitable distribution of radio service among the several states and communities. Therefore, publication pursuant to   1.525(b) of the rules is not required.

 

4. Accordingly, it is ordered that the joint petition for approval of the agreement is granted, the application (BPH-7449) of WABY, Inc., is dismissed, and the application of People Communication Corporation (BPH-7435) is granted.


DISSENTBY: NICHOLAS JOHNSON

 

DISSENT:

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

 

People Communication Corporation and WABY, Inc. filed mutually-exclusive applications for a construction permit for a commercial FM station on Channel 280, assigned to Albany, New York, but also available to Rensselaer, New York.

 

Pursuant to Section 311(c) of the Federal Communications Act and   1.525(a) of the Commission's Rules, the two parties filed a request for the Commission to approve their agreement whereby WABY, Inc. would withdraw its application for the construction permit. This would leave People Communication Corporation as the sole applicant for the FM construction permit.

 

The Communications Act states that "The Commission shall approve the agreement only if it determines that the agreement is consistent with the public interest, convenience, or necessity. n1 Commission approval of the drop-out agreements like this one is not supposed to be a pro-forma exercise, merely blindly validating the private agreements of applicants for radio or TV permits. We must do more than decide whether the drop-out payment does not exceed the drop-out's out-of-pocket expenses. n2 There is a specific requirement in Section 311(c) of the Act that the Commission find that the proposed agreement affirmatively serves the public interest, convenience, or necessity. The question is what is the nature of that "public interest" standard.

n1 47 USC   311(c)(3).

n2 Section 311(c) states that before the Commission finds the agreement to be in the public interest, it must determine that the amount paid to the drop-out does not exceed his out-of-pocket expenses in preparing the broadcast application.

 

This issue has been before us in the past. In an analogous situation, where applicants from two different cities or states apply for the same frequency, our Rules n3 direct us to determine whether the agreement "would unduly impede achievement of a fair, efficient and equitable distribution" of radio and TV frequencies across the country. While there is no such Section 307(b) issue in this case, the principle is applicable: in making the "public interest" determination required by Section 311(c), we must assess the over-all effects of the agreement on the nation's broadcast system.

n3 47 CFR   1.525(b)(1).

 

We have consistently held, according to this principle, that the Section 311(c) "public interest" standard is to be construed to allow the Commission to go beyond the issues of excessive reimbursement of the drop-out or of the effects of the agreement on the efficient distribution of signals across the country. See Woma Typa Broadcasting Co., 1 P&F Radio Reg. 2d 323 (1963); NBC, Inc., 25 P&F Radio Reg. 67 (1963); Public Television Corp., 33 FCC 98 (1962); see also dissenting opinions of Commissioners Cox and Bartley in Clay County Broadcasting Co., 8 P&F Radio Reg. 2d 409, 410 (1966).

 

The proposed agreement would leave People Communication Corporation as the owner of the only two broadcast outlets in Rensselaer, New York. People is currently the licensee of WQBQ, the town's only AM station. There are no TV stations in Rensselaer. (The town is located next to Albany and receives service from three Albany TV stations.) Furthermore, there is no newspaper in Rensselaer itself. The nearby Troy Record serves as the newspaper of official notice of the City of Rensselaer.

 

Rensselaer is a city of 10,316, with an elected City Council and Mayor. It has its own separate municipal structures, such as tax collection, police and fire protection and garbage collection. Rensselaer citizens have their own decisions to make about their city government, separate and distinct from the affairs of Troy or Albany. Thus it is important that the news and information they receive about their city be as free and diverse as possible.

 

In these circumstances, I cannot find that it would affirmatively serve the public interest for this Commission to approve the construction and operation of an FM station by the owners of the sole AM outlet in the city of Rensselaer. It is sufficient to describe the potentiality for abuse in order to justify this concern. It would be a disservice to the citizens of Rensselaer for us to approve an agreement which would result in the common ownership of the only two outlets of information operating in their city.

 

It may be argued that the proper time to raise these objections is at the time People Communication Corporation files an application for an FM license. But if the construction permit is granted, the granting of the license is a purely ministerial act, and the Commission will be unable to raise these objections at that time. n4 Thus, there is no alternative to raising these issues in this context, since the granting of construction permits is delegated to the Commission staff. Perhaps WABY, Inc., licensee of a station in Albany, the drop-out, should not be granted a permit for this FM station. Thus, we should now permit other applicants from Rensselaer or Albany to file applications.

n4 47 USC   319(c).

 

The proper action for this Commission to take would be to disapprove the agreement, and allow other persons to file applications for this construction permit. This would be in accordance with sound public policy and with the procedures outlined in our Rules.

 

Accordingly, I cannot approve this agreement, and therefore dissent.


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