In Re applications by THE OUTLET CO., PROVIDENCE, R.I. AND W.R.G. BAKER TELEVISION CORP., SYRACUSE, N.Y. For Transfer of Control and Renewal of License of Station WNYS-TV, Syracuse, N.Y.
FEDERAL COMMUNICATIONS COMMISSION
36 F.C.C.2d 602
RELEASE-NUMBER: FCC 72-653
JULY 19, 1972
[*602] THE OUTLET CO., 176 Weybosset Street, Providence, R.I. 02902 W.R.G. BAKER TELEVISION CORP., Shoppingtown, Syracuse, N.Y. 13214
GENTLEMEN: This refers to (1) the application for transfer of control of W.R.G. Baker Television Corporation licensee of Station WNYS-TV (Channel 9), Syracuse, New York, from the principals of W.R.G. Baker, Inc., et al. to the Outlet Company and (2) the license renewal application for this station. On June 8, 1972, the Syracuse Coalition for the Free Flow of Information in the Broadcast Media (SCFFI) withdrew its Petition to Deny the WNYS-TV renewal application in view of its negotiations with transferee which culminated with a "Statement of Operating Policy" concerning the station's hiring practices and service to minority groups in the community which "Statement" was filed as an amendment to the above transfer application.
Agreements such as the above come within the discretion of the licensee, in meeting in good faith and equitably the needs and interests of his area. See 1960 Programming Statement, 20 RR 1902 (1960). We believe it appropriate, however, to note one possible problem in the agreement and to make clear what the licensee's responsibilities are in this important area. The ultimate responsibility in the matters of programming and program scheduling must lie with the licensee. As we emphasized in attachment A to Section IV-B of the transfer application (FCC Form 315) concerning TV program service:
... broadcasters, mindful of the public interest must assume and discharge responsibility for planning, selecting and supervising all matter broadcast by their stations, whether such matter is produced by them or provided by networks or others.
[*603] There are provisions in the agreement that are ambiguous and do raise problems in this respect (e.g., "the selection of topics or issues to be aired by the respective groups shall be their determination subject only to final review by station personnel, for compliance with the Communications Act of 1934,"; as stated, compliance with the Act entails not only observance of policies such as no obscenity or lottery but also licensee responsibility to make the judgment that the programming does serve the public interest). We therefore stress that the agreement is to be construed and implemented in accordance with the above fundamental policy, and that any provision that is in fact intended to curtail improperly the licensee's discretion to make programming judgments in the public interest would of course be of no force or effect.
Upon finding that the transferee is fully qualified, and that the public interest, convenience and necessity will be served thereby, the Commission has granted the WNYS-TV renewal and transfer applications. The grant of the renewal application is made subject to the condition that the transfer application be consummated within 45 days of the date of these grants and that the Commission be notified of such consummation within one day thereafter. Failure to meet this condition will render these grants null and void, and will cause the renewal application to revert to pending status.
The grant fee in this transaction is $95,363.52 based on a consideration of $4,768,176.00. Since the consideration here is publicly traded stock of the transferee corporation, the Commission determined that its fair value is its market closing price on the day the contract supporting the transfer was executed.
Commissioner Johnson concurring and issuing a statement; Commissioner Hooks not participating.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
CONCURRING OPINION OF COMMISSIONER NICHLOAS JOHNSON
I concur in this item only because of the assurances I have received that the FCC intends to provide the community group here with as much programming discretion as that possessed by other program originators.
Stations regularly, and properly, delegate programming authority to many program sources: network programming, independent syndicated programs, and even their own employees. A disc jockey, for example, may have virtual autonomy in selecting the records he chooses to play and what he will say about them. Stations rarely "discharge responsibility for planning, selecting and supervising" the network programs that come down the line and go out over their transmitters in any but the most theoretical and superficial sense. Syndicated radio and television material is also (virtually always) simply carried intact in the time slot regularly scheduled for it by the station.
In short, a licensee may make a judgment that the "public interest" will be served by carrying "The Beverly Hillbillies," or "Issues and Answers," without making a precise judgment as to each segment. It [*604] may decide that a disc jockey's daily program is generally in "the public interest" without passing judgment on each record that will be played, and pre-clearing a script of all comments to be made.
In other words, a broadcaster -- like every other businessman or administrator -- may (indeed, must) delegate programming responsibility in ways that leave him only the most theoretical control. In some respects -- such as the independence of broadcast journalism -- the FCC would even encourage practices that would insulate those with programming responsibility from management intervention in details. Programming by local community groups might very well be considered in this light: the less management has to do with "planning, selecting and supervising" such programming the more the licensee is serving the public interest.
The need throughout the country is for more opportunity for community involvement and control of programming, not less.
Needless to say, a licensee need not give regular programming time to any given community group. It cannot barter away its theoretical, "ultimate responsibility" for who, and what, is broadcasting over its facility.
But it clearly can delegate its programming responsibility to others. That is all the licensee and community group have agreed to do in this instance -- and commendably so, in my judgment. As I read, and understand, the FCC's action today it has essentially ratified that agreement.
Based on that understanding, I concur.