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In Re STARK COUNTY COMMUNICATIONS, INC., BREWSTER, OHIO For Certificate of Compliance

 

CAC-1007 OH246 CSR-260

 

FEDERAL COMMUNICATIONS COMMISSION

 

39 F.C.C.2d 274

 

RELEASE-NUMBER: FCC 73-103

 

January 31, 1973 Released

 

 Adopted January 23, 1973 


JUDGES:

BY THE COMMISSION: COMMISSIONER ROBERT E. LEE NOT PARTICIPATING; COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT; COMMISSIONER REID CONCURRING AS TO THAT PORTION RELATING TO THE ACCESS REQUIREMENT AND DISSENTING WITH REGARD TO THE SIMULTANEOUS EXCLUSIVITY; COMMISSIONER WILEY CONCURRING IN THE RESULT.


OPINION:

 [*274]  1.  On August 9, 1972, Stark County Communications, Inc., filed applications for certificates of compliance to commence cable television service at Beach City, Wilmot, Justus, Harmon, and Brewster, Ohio, communities located in the Cleveland-Lorain-Akron television market (the eighth largest).  Proposing to operate from a common head-end, Stark County requested the Commission's authorization to carry the following signals: WKYC-TV (NBC), WEWS (ABC), WJW-TV (CBS), WKBF-TV (Ind.), WVIZ-TV (Educ.), Cleveland, Ohio; WUAB-TV (Ind.), Lorain, Ohio; WAKR-TV (ABC), Akron, Ohio; WJAN (Ind.), Canton, Ohio.  A twenty channel system with two-way capability will be constructed by Stark County.  However, a waiver of Section 76.251 was requested to the extent that three separate access channels must be provided in each community to be served.  Stark County justified this request by pointing to the small number of potential subscribers it could hope to attract in these communities.  On December 20, 1972, we granted the first four applications and the requested waiver in Stark County Communications Inc., FCC 72-1189,     FCC 2d    .  While these applications presented issues identical to those present in the Brewster, Ohio application, they were unopposed.  Summit Radio Corporation, licensee of WAKR-TV, Akron, Ohio, opposes a grant of the Brewster application.

2.  Summit's opposition is prompted by Stark County's request for a permanent waiver of the network program exclusivity requirements of Section 76.91 of the Rules.  After Stark County filed its applications for certification, Summit requested "same day non-duplication" protection against another ABC affiliate, WEWS, Cleveland, Ohio.  Stark County responded to this by requesting a waiver of Section 76.91 of  [*275]  the Rules, and Summit then filed its opposition, asserting that the matters of certification and program exclusivity were so interrelated as to require joint consideration.  Discounting the small number of potential cable subscribers in Brewster, n1 Summit insists that every bit of audience is important.  WAKR-TV is described as a "disadvantaged UHF station" competing at an "enormous disadvantage" with WEWS, an established VHF station operating in a much larger city. 

n1 It is not disputed that Stark County hopes for only 400 subscribers in a community of 650 homes.

3.  Stark County's reasons for requesting a permanent waiver are: (a) the number of potential subscribers is less than one percent of WAKR-TV's average daily circulation; (b) the cost of installing switching equipment would be an onerous burden to a small system which has yet to begin service; (c) providing exclusivity protection to WAKR-TV would disrupt the viewing habits of its subscribers; (d) the Commission has followed a long-standing policy of deferring action on exclusivity requests involving systems with fewer than 500 subscribers; and (e) when the system serves 500 subscribers, it will render protection to WAKR-TV.

4.  For the reasons given in our earlier decision involving Stark County, id, we will grant the Brewster application and approve a partial waiver of Section 76.251 of the Rules.  However, should sufficient demand for these channels develop, we expect additional access channels to be made available.  We are not inclined to approve a permanent waiver of Section 76.91 of the Rules.  As we stated in the Cable Television Report and Order, the precedents and policies evolved under the former program exclusivity rule -- Section 74.1103 -- were retained.  n2 In Spencer Community Antenna System, Inc., 22 FCC 2d 57 (1970), a temporary waiver of that rule was granted to a new cable system until it obtained 500 subscribers.  The imposition of section 74.1103 was deferred, not because the number of subscribers represented a small percentage of a station's audience, the supposed disruption of a subscriber's viewing habits, or the costs of necessary switching equipment, but in view of the difficulties that vex any new cable system contemplating the inauguration of service in a small community.  In the circumstances of that case, a temporary waiver of the program exclusivity rules served the public interest, and we believe a similar waiver is a reasonable response here. 

n2 Cable Television Report and Order, 36 FCC 2d 143, 181 (1972).

In view of the foregoing, the Commission finds that a partial waiver of Section 76.251 of the Rules and grant of the above-captioned application would be consistent with the public interest.

Accordingly, IT IS ORDERED, That a partial waiver of Section 76.251 of the Rules IS GRANTED, and that the application for the certificate of compliance (CAC-1007) filed by Stark County Communications, Inc. for Brewster, Ohio IS GRANTED and an appropriate certificate of compliance will be issued.

IT IS FURTHER ORDERED, That the "Opposition to Application for Certification" filed October 16, 1972, by Summit Radio Corporation, IS DENIED.

 [*276]  IT IS FURTHER ORDERED, That Stark County Communications, Inc., IS DIRECTED to comply with the requirements of Section 76.91 of the Commission's Rules on its cable television system at Brewster, Ohio, 7 days after it obtains 500 subscribers.

 

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.


DISSENTBY: JOHNSON

 

DISSENT:

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

I dissent to the majority's grant of this certificate of compliance because Stark County Communications' public, educational and governmental access proposals do not comport with our rules.

Stark County Communications (Stark) is franchised to operate cable systems, through a common head-end, in three small communities located within the Cleveland-Lorain-akron television market (the eighth largest market in the country).  Stark also intends to serve, through the same head-end, two other unincorporated communities in the same area.  Despite its use of a single head-end, Stark will thus provide these five communities with five separate cable systems.  See   76.5(a) of the cable television rules, Cable Television Report and Order, 36 FCC 2d 141, 214 (1972). Under these circumstances, our cable rules would normally demand that Stark provide each community with its own public, educational and governmental access channels.  See   76.251(a)(4)(5)(6) of the cable rules, 36 FCC 2d at 240-242.

Today, for reasons which remain rather obscure, the Federal Communications Commission waives these access requirements.  Absent any tangible evidence, the majority agrees with Stark that strict adherence to our rules would impose an undue financial burden upon the system and that these communities, given their small populations, will not either need or demand three separate access channels apiece.  As a result, the majority approves Stark's proposal to share the three requisite access channels among each of the five communities.

This is a dangerous precedent.

It is true that when we promulgated our cable television rules, we recognized that our access requirements might impose an onerous financial burden on cable systems operating in isolated communities in the nation's largest television markets.  See para. 148, Cable Television Report and Order, 36 FCC 2d at 197. It is also true that we therefore suggested that in an "appropriate situation," our access rules might be relaxed.  A part from its utter failure to offer some standards by which to better define this term, the majority, by simply proclaiming that Stark has presented such an "appropriate situation," has operated in a total vacuum.

First, the majority makes absolutely no inquiry into Stark's financial capabilities.  We simply have no idea of the capital outlays this system could make if so required.

Second, the majority makes no inquiry into the financial burdens that would be imposed upon Stark by compliance with our access rules.   [*277]  It is possible, of course, that this system could easily supply each of these communities with three separate access channels to be used and viewed solely by the people in each community.  Stark has a 20 channel capacity -- presumably for each community -- and it currently proposes to carry only eight broadcast signals.  It is therefore quite possible -- if not likely -- that the systems could provide each community with these eight signals plus three access channels, leaving each community with nine open channels -- to be utilized by Stark for future distant signal importation.  If this is, indeed, the case, compliance with our rules could not impose much of burden on the system.  The point, of course, is that we know nothing of Stark's technical capacity.

Finally, though the majority adds, rather gratuitously, that these systems will have to provide the complete panoply of access channels envisioned by our rules if the communities involved should somehow illustrate a "sufficient demand," nowhere does the majority even hint as to how such demand is to be measured.  n1

n1 Interestingly, two of the five communities to be served by these systems are unincorporated and, hence, do not have local franchising authorities.  In the absence of such local governmental bodies, the majority has no way of knowing how or whether the people in these communities had any opportunity to scrutinize Stark's plan to provide cable facilities without strict compliance with our access rules.  Under our rules.  the FCC will not certify a new cable system unless that system has been franchised after a full public proceeding.  See   76.31(a)(1) of the Cable Television Rules, 36 FCC 2d at 219. Systems desirous of serving unincorporated communities which do not have franchising authority must include with their certificate of compliance applications "an acceptable alternative proposal for assuring that the substance of our rules, and specifically   76.31, is complied with." See paragraph 116 of the Cable Television Reconsideration of Report and Order.  36 FCC 2d 326 at 366 (1972). The majority has not even seen Stark's alternative proposals -- if, indeed such proposals do exist -- with respect to its two unincorporated communities.  It is therefore impossible for the majority to determine 1) whether such proposals are adequate to preserve the public's rights and 2) whether the public ever expressed its views on access at all.

Ironically, our present access rules demand very little from cable systems.  Aside from requiring that such systems make three access channels available without cost -- one for public use, one for educational use, and one for use by the local government -- our rules ask only that these systems provide "the minimal equipment and facilities necessary for the production of programming." We do not demand -- though I believe we should -- that cable systems publicize the existence of these channels, that they actively solicit their use, or that they provide technical assistance and training to those who might seek to use these channels.  n2

n2 By contending that full compliance with our access requirements presents it with an insuperable financial burden, Stark County appears to suggest that it cannot afford to construct the "minimal" access facilities envisioned by our rules.  Passing the question whether the majority can agree with Stark in the absence of any financial information (both as to Stark's income and as to the costs of construction), and passing the very serious problem of determining what our rules mean by "minimum" facilities, I believe that those communities which charge Stark a franchise fee should be required to reinvest the monies collected in access channel facilities.  Three of the communities to be served by Stark intend to collect a small percentage of the systems' gross revenues.  (1% the first year, 2% the second, and 3% thereafter.) It seems to me that, at least in cases where the cable system can prove its financial inability to comply with our access requirements, its community of service should be bound to use the franchise fees which our rules permit it to collect from the system for the purpose of effectuating complete access.  If this result cannot be achieved under our current rules, then I suggest they be amended.

In other words, while our access rules may well offer the public a potential for informative and educational services never realized by  [*278]  commercial broadcasting, see e.g. Johnson and Gerlach, The Coming Fight for Cable Guess, 2 Yale Review of Law and Social Action, 217 (1972), the burden of realizing that potential remains firmly on the public.  That potential is obviously undermined, and the public's burden is substantially increased when this Commission, without careful scrutiny of the relevant facts, blithely permits a cable system to reduce the number of access channels which our rules -- meager as they might be -- demand.  The public can only lose.

I dissent.


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