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In Re SAGINAW CABLE TV CO., SAGINAW, MICH.; SAGINAW CABLE TV CO., TOWNSHIP OF SAGINAW, MICH.; SAGINAW CABLE TV CO., ZILWAUKEE, MICH.; SAGINAW CABLE TV CO., TOWNSHIP OF CARROLLTON, MICH.

For Certificates of Compliance

 

CAC-580, CSR-198 MI145; CAC-581, CSR-200 MI146; CAC-582, CSR-199 MI147;

CAC-583, CSR-201 MI148

 

FEDERAL COMMUNICATIONS COMMISSION

 

39 F.C.C.2d 496

 

RELEASE-NUMBER: FCC 73-121

 

February 8, 1973 Released

 

 Adopted January 31, 1973

  


JUDGES:

BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.


OPINION:

 [*496]  1.  On June 6, 1972, Saginaw Cable TV Co. filed the above-captioned applications for four new twenty-six channel cable television systems to operate from a common head end and offer service to approximately 91,849 persons in Saginaw, Michigan (the 61st television market); approximately 27,234 persons in Township of Saginaw, Michigan; approximately 2,072 persons in Zilwaukee, Michigan; and approximately 8,526 persons in Township of Carrollton, Michigan.  Saginaw Cable proposed to offer subscribers the television signals of WKNX-TV (CBS), n1 Saginaw, Michigan; WNEM-TV (NBC), Bay City, Michigan; WJRT-TV, Flint, Michigan; WJIM-TV (CBS), Lansing, Michigan; WUCM-TV (Educ.), Bay City, Michigan; WKBD-TV (Ind.), Detroit, Michigan; and CKLW-TV (Ind.), Windsor, Ontario.  Public notice of these applications was given June 28, 1972.  On July 31, 1972, Rust Craft Broadcasting Company, licensee of Station WEYI-TV, Saginaw, Michigan, filed an "Opposition to Applications for Certificates of Compliance and Petition for Special Relief" in which it requested special relief against Saginaw Cable's proposed carriage of WJIM-TV and CKLW-TV.  Thereafter, on August 10, 1972, Rust Craft and Saginaw Cable entered into a private agreement whereby Saginaw Cable agreed to withdraw its proposal to carry WJIM-TV and Rust Craft agreed to withdraw its objections.  Saginaw Cable amended its applications on September 12, 1972, to withdraw its request to carry WJIM-TV, and on September 29, 1972, Rust Craft withdrew its objections.  Next, on October 12, 1972, Gross Telecasting, Inc., licensee of Station KJIM-TV, Lansing, Michigan, filed an "Opposition to Application for Certificates of Compliance, as Amended,"  [*497]  directed against CAC-580, CAC-582, and CAC-583, and Sarginaw Cable and Rust Craft have replied. 

n1 The call letters of this station were later changed to WEYI-TV.

2.  The issue presented by the pleadings is whether Gross is entitled to insist on carriage of WJIM-TV. WJIM-TV is not a station which Saginaw Cable could normally carry; however, by virtue of our decision in Booth American Co., 13 FCC 2d 270 (1968), an argument can be made that carriage of WJIM-TV is grandfathered in Saginaw, Zilwaukee and Township of Carrollton (Gross does not claim that the Booth decision dealt with Township of Saginaw, and therefore has not opposed CAC-581).  Whatever the likelihood that it might have prevailed on this claim n2, Saginaw Cable elected to give it up in order to settle the controversy with Rust Craft. Gross now objects on the rationale that grandfather rights should be extended to the station involved as well as to the cable television system, and that Rust Craft should not be allowed to benefit from its earlier objection.  This argument is unsupported in citation to Commission precedent, and ignores the fact that Gross is itself apparently attempting to practice the same tactic.  Under the circumstances, we think Saginaw Cable was entitled to enter into a private settlement with Rust Craft in order to resolve the uncertainties connected with its applications, and that Gross has no ground upon which it is entitled to object.  Accordingly, Gross' opposition will be denied. 

n2 Par. 49.  Reconsideration of Cable Television Report and Order, FCC 72-530, 36 FCC 2d 326, 345, recognized that WKNX might have a "meritorious" claim, but left its settlement for special relief.

3.  An additional matter requires mention.  In its amendment of September 12, 1972, Saginaw Cable states that:

"As described in its certification application, Saginaw Cable proposes at this time to provide one public access, one educational access and one local government access channel for its system serving Saginaw, Zilwaukee, Saginaw Township, and Carrollton Township. Each of these communities, which will be served by a single head end located in Saginaw, forms part of a single contiguous urbanized area of which Saginaw is the center culturally, economically, and geographically.  The people living in these communities share common interests and concerns which can best be served by common access channels.  Since Saginaw Cable cannot predict the extent of use of access channels at this time (there are only 2,072 people in Zilwaukee and 8,526 people in Carrollton Township according to the 1970 Census), it will make such additional channels available on a system-wide basis as are justified by the demand for public, educational, and local government access.  In this way, the Commission's intention that access be available will be satisfied, and no initial user will be subjected to the problem of reception in the home being dependent upon a channel converter."

 

We understand this statement to indicate the rate at which Saginaw Cable intends to make access channels available (we note that it is proposing to install sufficient channel capacity to allow it to satisfy access requirements for all four systems), and have no objection to it.  See also par. 90, Reconsideration of Cable Television Report and Order, FCC 72-530, 36 FCC 2d 326, 359. However, should sufficient demand develop, we expect Saginaw Cable to make additional access channels available.

In view of the foregoing, the Commission finds that a grant of the above-captioned applications would be consistent with the public interest.

 [*498]  Accordingly, IT IS ORDERED, That the "Opposition to Applications for Certificates of Compliance and Petition for Special Relief" (CSR-198, CSR-199, CSR-200, CSR-201) filed July 31, 1972, by Rust Craft Broadcasting Company IS DISMISSED.

IT IS FURTHER ORDERED, That the "Opposition to Application for Certificates of Compliance, as Amended" filed October 12, 1972, by Gross Telecasting, Inc., IS DENIED.

IT IS FURTHER ORDERED, That the above-captioned applications (CAC-580, CAC-581, CAC-582, CAC-583) ARE GRANTED, and that appropriate certificates of compliance will be issued.

 

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.


DISSENTBY: JOHNSON

 

DISSENT:

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

Today the Federal Communications Commission illustrates its contempt not only for the public, but for its own process.  The majority grants certificates of compliance to Saginaw Cable TV Co., proposed operator of four new cable systems in four neighboring Michigan communities -- all in the 61st television market.  I dissent because the access proposals submitted by these systems do not comport with our rules.

Saginaw proposes to provide cable service from a common headend to citizens in Saginaw (approximately 92,000 person), Saginaw Township (approximately 27,000), Zilwaukee (approximately 2,000 persons) and the Township of Carrollton (approximately 8,500 persons).  Under our rules, despite the use of a common head-end, Saginaw Cable thus proposes four separate cable systems,   76.5(a) Cable Television Report and Order, 36 FCC 2d 141, 214 (1972), and each system must, according to our rules, provide each community with three separate access channels -- one for the public, one for education, and one for government.  See   76.251 Cable Television Report and Order, 36 FCC 2d at 240-242.

Alleging that the provision of such channels would impose an undue financial burden, and arguing that the four communities have indicated no demand for separate access facilities, Saginaw Cable proposes to provide only three access channels for all four communities combined.  The majority simply accepts both Saginaw's allegations and its proposal despite the fact that the systems' 26 channel capacity could (insofar as the Commission has been made aware) easily accommodate the proposed carriage of six broadcast signals plus the full panoply of access channels envisioned by our rules, and despite the fact that Saginaw Cable has introduced absolutely no evidence as to its financial situation (e.g., ownership and income), the costs of complying with our access rules, or the four communities' demands for access.

The majority relies for this result, at least in part, upon Stark County Communications,     FCC 2d     (1973), where the Commission granted -- over my dissent -- a similar waiver of our access rules.  I dissented in that case because, while I believe some relaxation of our access rules might be warranted in rare circumstances  [*499]  where strict compliance would clearly preclude a cable system from providing any service to the public at all, the majority could not possibly have made the requisite findings to support a waiver in that case.  But, even assuming, arguendo, that Stark County was rightly decided -- and assuming, therefore, that the cable systems there involved could not have afforded to provide broadcast signal carriage to the public had our access rules been fully enforced -- the instant case is surely distinguishable.

Here we have four cable systems, owned by one company, which, given the facts before us, could apparently supply each of these communities with its own access channels without expanding channel capacity.  (Whether or not such expansion would have been necessary in Stark County was not clear, though the majority apparently assumed that it would have been necessary.) Further, the relaxation of our access rules was justified in Stark County at least in part on the grounds that, given the very small populations in the various communities, the public's demand for access was not substantial.  While the majority had absolutely no way of knowing whether such an assumption was valid in Stark County, it is difficult even to contemplate such an assumption in the instant case.  Where, in Stark County, the total population to be served by all the systems did not exceed 2,000 persons, in the instant case, Saginaw Cable proposes to serve communities whose total population is over 120,000.

The majority does not perceive -- let alone discuss -- these differences.  This is an excellent example of how this Commission relies on a bad precedent to create a truly outrageous body of law.

As I have suggested in the past, see my dissent in Stark County Communications, supra, because our cable access rules demand little capital expenditure from the cable industry, they offer the public little more than the potential for free and open access to what could well become the most dominant method of communication in America.  While the cable industry could and should do much more to ensure the development of this potential, such potential is, itself, significant in light of the fact that America's commercial broadcasters have consistently and stubbornly refused to allow citizens the free and unfettered opportunity to communicate their ideas to their countrymen.

While my colleagues have approved the broadcast industry's stubborn refusal to live up to the demands of the First Amendment, see Business Executives Move for Vietnam Peace, 25 FCC 2d 242 (1970), reversed, Business Executives Move for Vietnam Peace v. FCC, 450 F.2d 642 (D.C. Cir. 1971), now pending decision in the Supreme Court, they have recognized, through promulgation of our cable access rules, that the cable industry -- due to its virtually unlimited channel capacity -- will have to meet a higher standard.  Today's action is, however, yet another step backward -- a step which greatly increases the public's burden in gaining access to cable television, and which thus undermines the public's Constitutional right to free and open debate.

I dissent.


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