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In Re Applications of SOUTHERN BROADCASTING CO. (WGHP-TV), HIGH POINT, N.C. For Renewal of Broadcast License; FURNITURE CITY TELEVISION CO., INC., HIGH POINT, N.C. For Construction

Permit for New Television Broadcast Station

 

Docket No. 18906 File No. BRCT-574; Docket No. 18907 File No. BPCT-4302

 

FEDERAL COMMUNICATIONS COMMISSION

 

37 F.C.C.2d 1058

 

RELEASE-NUMBER: FCC 72-890

 

October 18, 1972 Released

 

 Adopted October 5, 1972

 


JUDGES:

BY THE COMMISSION: COMMISSIONER HOOKS DISSENTING AND ISSUING A STATEMENT IN WHICH COMMISSIONER JOHNSON JOINS; COMMISSIONER REID ABSENT.


OPINION:

 [*1058]  1.  Before us for consideration is an interlocutory application for review filed May 16, 1972, by Furniture City Television Company, Inc. seeking review of a Review Board Memorandum Opinion and Order, FCC 72 R-132, 34 FCC 2d 908, released May 9, 1972.  n1

n1 Also before us for consideration are: (a) an opposition to the application for review filed May 23, 1972, by the Broadcast Bureau, (b) a motion to accept late filing and an opposition to the application for review filed May 24, 1972, by Southern Broadcasting Co., and (c) a reply to oppositions filed June 5, 1972, by Furniture City.  The other parties have given their consent to acceptance of Southern's opposition pleading, the disposition of this matter has not been delayed, and thus Southern's request may be granted.

2.  Accordingly, IT IS ORDERED, That the motion to accept late filing, filed by Southern Broadcasting Company IS GRANTED and the application for review filed by Furniture City Television Company, Inc. IS DENIED.

 

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

 


 

DISSENTBY:  

HOOKS

 

DISSENT:

DISSENTING OPINION OF COMMISSIONER BENJAMIN L. HOOKS IN WHICH COMMISSIONER NICHOLAS JOHNSON JOINS

In this comparative proceeding for a television station, one of the competing applicants has requested inspection of the other's [presently the station licensee] Annual Financial Reports (FCC Forms 324) n2 to determine, allegedly, what portion of the licensee's profits have been plowed back into the station for public interest programming. 

n2 While Forms 324 are "not routinely available for public inspection" under   0.457(d) of our rules (47 CFR   0.457(d)), the Commission has released licensees' Annual Financial Reports in the context of license battles.  See, Carrol Broadcasting Co. v. FCC, 103 U.S. App. D.C. 346, 436 F. 2d 440 (1958); Cape Cod Broadcasting Co., 23 F.C.C. 2d 277 (1970).

Although the Commission has not, to date, utilized profit reinvestment in public service programming as a yardstick to measure the past performance of an existing licensee, Alianza Federal De Pueblos  [*1059]  Libres, 31 FCC 2d 557 (1970), the Court of Appeals for the District of Columbia has said that it can.  Citizens Communications Center v. FCC, 141 U.S. App. D.C. 109, 436 F. 2d 263, 22 RR 2d 2001 (D.C. Cir. 1970). n3 On Petition for Mandamus in Citizens, the Court indicated that in establishing a profit reinvestment criterion, the Commission -- if it so desired -- could proceed on a case-by-case basis rather than explore the imposition of such a standard via Rule Making proceeding.  n4

n3 "[One] test of superior service should certainly be whether and to what extent the incumbent has reinvested the profit on his license to the service of the viewing and listening public." Citizens, supra, at fn. 35.

n4 Citizens Communications Center v. FCC,     U.S. App. D.C.    , 449 F. 2d 1201, 22 @RR 2d 2001 (D.C. Cir. 1971).

Moreover, only yesterday, on appeal of the Commission's Alianza decision, supra, the D.C. Court of Appeals indicated that it would not "take a position on the merits of whether reinvestment of profits into community-oriented programming is a relevant public interest factor" and further maintained that its denial of Alianza's petition [to immediately require Form 324 disclosure] "intimates no opinion on that question which, as the Commission concedes, petitioner is free to raise if and when renewal is granted." n5

n5 Alianza Federal De Pueblos Libres v. FCC, Case No. 71-1770, slip op. at 2, 3 (D.C. Cir., October 4, 1972).

Therefore, it is my view that in this comparative case, where there is no chance that the requesting party is on an inquisitive fishing expedition, the Commission should have followed the Court of Appeals' suggestion in Citizens and allowed the challenger an attempted application of the profit reinvestment standard.  Out of this case we could have learned whether application of such a criterion is even possible -- let alone invaluable, valueless or somewhere in between.


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