In Re Application of HARBOR-VUE CABLE TV, INC., DUNKIRK, N.Y. For Certificate of Compliance
FEDERAL COMMUNICATIONS COMMISSION
42 F.C.C.2d 1067
RELEASE-NUMBER: FCC 73-1014
October 3, 1973 Released
Adopted September 28, 1973
BY THE COMMISSION: COMMISSIONER ROBERT E. LEE ABSENT; COMMISSIONER JOHNSON CONCURRING AND ISSUING A STATEMENT; COMMISSIONERS H. REX LEE, REID AND HOOKS CONCURRING IN THE RESULT.
[*1067] 1. On October 6, 1972, Harbor-Vue Cable TV, Inc., filed the above-captioned application for certificate of compliance to begin cable television service at Dunkirk, New York. Harbor-Vue proposes to offer approximately 16,855 persons the following television broadcast signals:
WGR-TV (NBC, Ch. 2), Buffalo, New York
WBEN-TV (CBS, Ch. 4), Buffalo, New York
WKBW-TV (ABC, Ch. 7), Buffalo, New York
WUTV (Ind. Ch. 29), Buffalo, New York
WNED-TV (Educ. Ch. 17), Buffalo, New York
WICU-TV (NBC, Ch. 12), Erie, Pennsylvania
WSEE (CBS, Ch. 35), Erie, Pennsylvania
WJET-TV (ABC, Ch. 24), Erie, Pennsylvania
CBLT (CBS, Ch. 6), Toronto, Ontario, Canada
CFTO-TV (Ind. Ch. 9), Toronto, Ontario, Canada
CHCH-TV (Ind. Ch. 11), Hamilton, Ontario, Canada
CKCO-TV (CTV, Ch. 13), Kitchener, Ontario, Canada
On December 13, 1972, an "Objection of Great Lakes Communications, Inc.," was filed by the licensee of Station WICU-TV, Erie, Pennsylvania. On December 14, 1972, Taft Broadcasting Company, licensee of Station WGR-TV, WBEN Inc., licensee of Station WBEN-TV, and Capital Broadcasting Corporation, licensee of Station WKBW-TV, all Buffalo, New York (hereinafter referred to as petitioners), filed a joint "Partial Objection to Grant of Application for Certificate of Compliance." Harbor-Vue has responded to these objections.
2. Harbor-Vue initially alleged that its proposed system was located outside all television markets. Petitioners responded that the City of Dunkirk is not a community located outside all television markets, [*1068] but that actually a small portion of the city lies within the specified zone of the Buffalo, New York, television market (#24), and Harbor-Vue's proposal is thus not consistent with Sections 76.61 and 76.251 of the Commission's Rules. Harbor-Vue now concedes that it was initially in error, but requests a de minimis waiver because the area in question is only a small corner of Dunkirk which contains a beach bordering Lake Erie, a park, a sewage disposal facility, a small section of railroad tracks, one hundred twenty-three single family dwellings, and two occupied apartments. The disputed area contains approximately 376 persons out of a total of 16,855 persons in the City. Harbor-Vue claims that the situation in Dunkirk is analogous to that considered in Diversified Communications Investors, Inc., FCC 72-963 37 FCC 2d 981 (1972), where a small portion of Littlefield, Texas, fell within the specified zone of Lubbock, Texas, but the Commission held the affected population to be so small as to be de minimis. Harbor-Vue asserts that the Dunkirk situation presents no erosion of the 35-mile zone concept nor any qualitative broadening of the Diversified ruling. Finally, it claims that Dunkirk is a more compelling case than Diversified because in Diversified the zone involved was of a minor market station, and minor markets generally have been deemed by the Commission to merit greater protection, while in the present case, the requested waiver involves one of the nation's largest markets.
3. In response to Harbor-Vue's waiver request, petitioners contend that Dunkirk is not a de minimis situation. While not contesting Harbor-Vue's statements as to the geographic and demographic composition of the area in question, petitioners state that this area comprises approximately 8 1/2 percent of the land area of Dunkirk. Petitioners also contend that the present case is not analogous to Diversifield because in that case, the section of the community in question was mainly farm land beyond the area of principal settlement of Littlefield, Texas, and contained eight or mine occupied dwellings, housing approximately 31 persons, while the portion of Dunkirk in question is part of the regular pattern of city streets and contains more people. Finally, petitioners maintain that it is not of decisional significance that the requested waiver involves a major rather than a smaller market.
4. In a supplement to its waiver request, Harbor-Vue states that the reference point for Buffalo, as contained in Section 76.53 of the Commission's Rules, is the location of the former main post office in Buffalo, and that the location of the main post office in Buffalo has been changed. Harbor-Vue submits that if computed from the coordinates of the present main post office, the 35-mile specified zone for the Buffalo market would fall 1.3 miles short of any portion of Dunkirk. Arguing that the Commission in the Cable Television Report and Order intended to establish reference points near or at the center of the designated community of a television market, Harbor-Vue contends that the location of the present main post office is much nearer the [*1069] center of Buffalo than the former main post office. n1 In response, petitioners submit that the change in the location of the main post office is irrelevant. They argue that Section 76.53 has established a reference point for Buffalo as well as for other communities, and as computed from that point, a portion of Dunkirk lies within he 35-mile specified zone of Buffalo. In reply, Harbor-Vue states that it is not requesting a formal change in the Buffalo reference point, but rather supplying additional information which, it believes, taken in conjunction with the other facts and arguments advanced, supports its waiver request.
n1 In Paragraph 76 of the Cable Television Report and Order, 36 FCC 2d 172 (1972), the Commission stated:
"We have delineated the areas to which particular rules will be applicable. We define the basic area as a zone of 35-mile radius, surrounding a specified reference point in each designated community in a market. A set of reference points fixing the center of the community to which each station is licensed is made part of the rules" (See Section 76.53).
5. While we do not agree that the case herein is completely analogous to the Diversified case, we do believe a de minimis waiver is appropriate. While the land area involved is significant (8.5 percent), we have in comparable situations accorded greater significance to population than to area served. Compare North Central Video, Inc., FCC 66-473, 3 FCC 2d 874 (1966). In the present case, only about two percent of the total population of Dunkirk live within the affected area, and examination of detailed maps submitted by the parties reveals that the area in question contains a park, a beach bordering Lake Erie, railroad tracks, and a local sewage disposal facility. As a result, it appears that the potential for additional development of this area is slight. n2 Compare General Electric Cablevision Corp., FCC 68-182, 11 FCC 2d 875 (1968); Gainesville Cablevision Corp., FCC 67-675, 8 FCC 2d 465 (1967). Accordingly, in these circumstances, we will consider Dunkirk to be a community lying wholly outside all television markets. However, we emphasize that our judgment here does not turn on any percentages or other convenient formulas but rather on the totality of facts. Each such request for waiver must be judged in the context of its own peculiar circumstances.
n2 We note that, during this century, Dunkirk's population reached its zenith in the 1920 census (19,336), and has declined by 1400 between the 1960 (18,205) and 1970 (16,855) censuses.
6. Great Lakes Communications asks that a grant of Harbor-Vue's application be conditioned upon Harbor-Vue providing program exclusivity to WICU-TV visa-a-vis WGR-TV, Buffalo, New York. Great Lakes states that both WICU-TV and WGR-TV are primary NBC network affiliates, and it claims that WICU-TV provides a predicted Grade A contour over Dunkirk while WGR-TV provides only a predicted Grade B contour so that, pursuant to Section 76.91 of the Rules, n3 it is entitled to network program exclusivity as against WGR-TV. In support of this contention, Great Lakes cites CATV and Station Coverage Atlas (Television Digest, Washington, D.C. 1972 ed.), [*1070] at p. 134(b), which purportedly shows that WICU-TV provides a predicted Grade A contour over Dunkirk. In response to Great Lakes opposition, Harbor-Vue has submitted an engineering statement which concludes that WICU-TV's predicted Grade A contour does not reach Dunkirk. The Commission finds Harbor-Vue's engineering statement persuasive, and we therefore cannot accept Great Lakes contention that it is entitled to program exclusivity against WGR-TV.
n3 Section 76.91 of the Rules provides:
§ 76.91 Stations entitled to network program exclusivity.
(a) Any cable television system operating in a community, in whole or in part, within the Grade B contour of any television broadcast station, or within the community of a 100-watt or higher power television translator station, and that carries the signal of such station shall, on request of the station licensee or permittee, maintain the station's exclusivity as an outlet for network programming against lower priority duplicating signals, but not against signals of equal priority in the manner and to the extent specified in § § 76.93 and 76.95.
(b) For purposes of this section, the order of priority of television signals carried by a cable television system is as follows:
(1) First, all television broadcast stations within whose principal community contours the community of the system is located, in whole or in part;
(2) Second, all television broadcast stations within whose contours the community of the system is located, in whole or in part;
(3) Third, all television broadcast stations within whose Grade B contours the community of the system is located, in whole or in part;
(4) Fourth, all television translator stations with 100 watts or higher power, licensed to the community of the system.
(c) If the signal of a television broadcast station licensed to a community in a smaller television market is carried by a cable television system, pursuant to § 76.57(a)(4), such signal shall, on request, be afforded network program exclusivity. This provision shall not be applicable to any signal authorized or lawfully carried by a cable television system prior to March 31, 1972.
7. Although not raised in the objections, we believe it appropriate to note certain variations in Harbor-Vue's franchise from the standards of Section 76.31 of the Commission's Rules. Harbor-Vue's franchise for Dunkirk was awarded by the Common Council of the city on August 3, 1970, after a full public proceeding. The initial term of the franchise is 10 years. Subscriber rates are established which can only be changed with the consent of the City Council after an appropriate public proceeding. A local office and service is specified. An annual fee of 5 percent must be paid to the city. Finally, we note Harbor-Vue's assurance that the system is already constructed. Only substantial compliance with Section 76.31 of the Rules must be demonstrated for franchises granted before March 31, 1972, and, measured by the criteria established by CATV of Rockford, Inc., FCC 72-1005, 38 FCC 2d 10 (1972), reconsideration denied, FCC 73-293, 40 FCC 2d 493 (1973), n4 we find that this franchise substantially complies with Section 76.31 of the Rules in a manner sufficient to justify a grant of the above captioned application until March 31, 1977.
n4 Appeal pending sub nom., Winnebago Television Corporation v. FCC and U.S.A., Case No. 73-1561 (D.C. Circuit).
In view of the foregoing, the Commission finds that a grant of the above-captioned application would be consistent with the public interest.
Accordingly, IT IS ORDERED, That the "Partial Objection to Grant of Application for Certificate" filed December 14, 1972, by Taft Broadcasting Corporation, WBEN, Inc., and Capital Cities Broadcasting Corporation IS DENIED.
IT IS FURTHER ORDERED, That the "Objection of Great Lakes Communications, Inc.," filed December 13, 1972, IS DENIED.
[*1071] IT IS FURTHER ORDERED, That the above-captioned application (CAC-1348, filed by Harbor-Vue Cable TV, Inc., IS GRANTED and the appropriate certificate of compliance will be issued.
FEDERAL COMMUNICATIONS COMMISSION, VINCENT J. MULLINS, Acting Secretary.
CONCURRING STATEMENT OF COMMISSIONER NICHOLAS JOHNSON
I concur in the granting of this de minimis waiver to Harbor-Vue. However, lest the de minimis character of such waivers becomes increasingly broadened to the extent of effectively repealing § 76.61 of the Cable Rules, I believe it important to note that I concur hesitantly in the granting of such waivers and have taken that action herein only because the facts of this case indicate that the area in question contains only about 2% of the population, that the demographies of Dunkirk indicate a decline in overall population over the past ten years, and that the potential for future development of the area appears slight. While the result of this waiver will avoid serious hardship to Harbor-Vue, I believe that waivers of this nature should be the exception rather than the rule and should always be dependent solely upon the de minimis character of the area in question.