Appendix — Federal Communications Commission v. National Citizens Committee for Broadcasting

Supreme Court brief1978

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APPENDIX

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

Nos. 76-1471, 76-1521, 76-1595,

76-1604, 76-1624, 76-1685

FEDERAL COMMUNICATIONS COMMISSION;

CHANNEL TWO TELEVISION COMPANY, et al. ;

NATIONAL ASSOCIATION OF BROADCASTERS;

AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION;

ILLINOIS BROADCASTING COMPANY, INC.; and

Post CoMPANY, et al,

Petitioners,

NATIONAL CITIZENS COMMITTEE FOR BROADCASTING,

FEDERAL COMMUNICATIONS COMMISSION, and

UNITED STATES OF AMERICA,

Respondents.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Volume I — Pages 1-444

| eee a TSS, 2 TIT

Washington, 0.C. + THIEL PRESS + (202) 638-4521

PETITIONS FOR WRITS OF CERTIORARI FILED

April 22, 1977; May 2, 1977; May 13, 1977;

May 16, 1977; May 20, 1977; and May 27, 1977;

CERTIORARI GRANTED OCTOBER 3, 1977

(i)

TABLE OF CONTENTS

VOLUME I:

DOCKET ENTRIES IN THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT IN NOS. 75-1064, 75-1152, 75-1263, 75-1289,

75-1327, 75-1379, 75-1386, 75-1387, 75-1388, 75-1567,

TE-2G14G, TE-1GIG ccc cc cccccccccccccees _

FEDERAL COMMUNICATIONS ACT OF 1934, AS

AMENDED, 47 U.S.C. §151 et seq.

FIRST REPORT AND ORDER (Docket No. 18110),

Roe Ff Til, Berererrerrerrrrerrrrrrre

FURTHER NOTICE OF PROPOSED RULEMAKING

(Docket No. 18110), 22 FCC 2d 339 (1970) ........

MEMORANDUM OPINION AND ORDER (Docket

No. 18110), 45 FCC 2d 768 (1974) ............-

SECOND REPORT AND ORDER (Docket No. 18110),

50 FCC 2d 1046 (1975) (text of rules adopted by

FCC appears at 50 FCC 2d 1099) ............-44.-

MEMORANDUM OPINION AND ORDER (ON RE-

CONSIDERATION) (Docket No. 18110), 53 FCC

2d 589 (1975) (modification of certain rules adopted

by FCC appears at 53 FCC 2d 599) ...... seecueeces

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT, 555 F.24 988 (1977) 2... cc cccccccces

(1)

JUDGMENT OF THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA

REED LOE ILE OTE IO TT

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT ON MOTION FOR STAY OF MAN-

DATE, 555 F.26 967 (1977) oc. cece cece ene

VOLUME II (Exhibits):

LEGAL OPINION OF FCC GENERAL COUNSEL

HAMPSON GARY SUBMITTED TO THE

SENATE INTERSTATE COMMERCE

COMMITTEE, January 25, 1937 ...........4-.

M.H. SEIDEN & ASSOCIATES, INC., “MASS

COMMUNICATIONS IN THE UNITED STATES —

1970,” SUMMARY VOLUME (1971) (RESEARCH

CONDUCTED ON BEHALF OF THE NATIONAL

ASSOCIATION OF BROADCASTERS) ........--.-

ANDERSON, “BROADCAST STATIONS AND

NEWSPAPERS: THE PROBLEM OF INFORMA-

TION CONTROL: A CONTENT ANALYSIS OF

LOCAL NEWS PRESENTATIONS” (1971)

(NAB EXHIBIT E), pp. 1-46.............-005:

COMMENTS OF NAB (1971), pp. 11-24; 59-63 ......

STERLING, “OWNERSHIP CHARACTERISTICS

OF BROADCASTING STATIONS AND NEWS-

PAPERS IN THE TOP 100 MARKETS: 1922-

1967” (March 5, 1971) (NAB Exhibit C),

ae 0)

ROBBINS, “A STUDY OF PIONEER AM RADIO

STATIONS AND PIONEER TELEVISION STA-

TIONS” (April 1971) (NAB Exhibit D), pp. 1-21 ....

COMMENTS OF ANPA (April 2, 1971), pp. 5458 ....

COMMENTS OF THE HOUSTON POST COMPANY,

CHANNEL TWO TELEVISION COMPANY, AND

KPRC RADIO COMPANY (May 17, 1971),

PP. 16-25 ... eee e cece cevees TTTTTITL Lt

432

435

445

466

-- 5938

659

(ut)

COMMENTS OF A.H. BELO CORPORATION

a A: HI a os cues s

COMMENTS OF THE WASHINGTON POST

COMPANY AND POST-NEWSWEEK STA-

TIONS, CAPITOL AREA, INC. (May 17, 1971),

Ss BS cc escecesecceseeseecncesoecececcs

COMMENTS OF THE PULITZER PUBLISHING

COMPANY (May 17, 1971) .............ee00-

VOLUME III (Exhibits):

NAB REPLY COMMENTS AND ARGUMENTS ON

THE PROPOSED RULES, APPENDICES B, C,

AND D (August 18,1971) ............eeeee

REPLY COMMENTS OF STEPHEN R. BARNETT

(August 19, 1971), pp. 17-22; 27-40; 73-81;

147-159; 190-194

COMMENTS OF POST-NEWSWEEK STATIONS,

CAPITOL AREA, INC. (May 1974), pp. 6-17

FURTHER COMMENTS OF NCCB (May 15, 1974)

SUPPLEMENT TO NAB EXHIBIT C REGARDING

CROSS-OWNERSHIP OF BROADCAST STATIONS

AND NEWSPAPERS (May 1974)

SUPPLEMENTAL STATEMENT OF NAB AND

EXHIBIT F REGARDING RECENT TRANSFERS

OF BROADCASTING STATIONS (REVISED)

(May 1974)

FURTHER COMMENTS OF THE PULITZER

PUBLISHING COMPANY AND KSD/KSD-TV,

INC. (May 15, 1974)

REPLY COMMENTS OF POST-NEWSWEEK STA-

TIONS, CAPITOL AREA, INC. (June 17, 1974)

FCC PUBLIC NOTICE 26054-B, “HEARING

CALENDAR” (July 15, 1974)

TRANSCRIPT OF ORAL ARGUMENT IN DOCKET

18110 (July 1974), pp. 130-145; 158-161; 179-181;

186-194; 380-385; 440-445

a me wees eeee ees

"ee eeeeeeeeeCcerceCet@et@eeeee& 6 ee 6 8

734

743

774

(w)

RAND CORPORATION STUDY, R-1585-MF, “NEWS-

PAPER-TELEVISION STATION CROSS—

OWNERSHIP: OPTIONS FOR FEDERAL

ACTION: (September 1974), Tables 7-10 ....------ 967

LETTER TO CHAIRMAN WILEY AND COM-

MISSIONER HOOKS AND EDWARD HAYES

ON BEHALF OF THE NATIONAL BLACK

MEDIA COALITION (September 9, 1974) ...------- 983

BARNETT, S., “CROSS-OWNERSHIP OF MASS

MEDIA IN THE SAME CITY: A REPORT

TO THE JOHN AND MARY MARKLE

FOUNDATION: (Sept. 23, 1974), pp. 1-2;

General Docket

United States Court of Appeals

for the

District of Columbia Circuit

Nos. 75-1064, 75-1152, 75-1263, 75-1289,

75-1327, 75-1379, 75-1386, 75-1387, 75-1388,

75-1567, 75-1614, 75-1618*

Date Filings — Proceedings

1975

Jan. 28 National Citizens Committee for Broadcasting

(NCCB) petition for review of an order of the

FCC [75-1064]

28 Certified copy of petition for review of an

order of the FCC was mailed to FCC

[75-1064]

31 NCCB’s motion for leave to amend Petition

for Review [75-1064]

Feb. 13 Certificate of Service for Petition for Review

[75-1064]

18 Motion of Elyria-Lorain Broadcasting Com-

pany for leave to intervene [75-1064]

*Case numbers, listed in brackets, denote the Docket in which

the pleading is recorded. As case Nos. 75-1152, 75-1263,

75-1289, 75-1327, 75-1379, 75-1386, 75-1387, 75-1388,

75-1567, 75-1614, and 75-1618 are consolidated with No.

75-1064, only No. 75-1064 is listed as a reference, when

appropriate.

Motion of WEEU Broadcasting Company for

leave to intervene [75-1064]

Owosso Broadcasting Company’s, Inc. petition

for review for an order of the FCC [75-1152]

Certified copy of a petition for review of an

order of the FCC was mailed to FCC U.S.

Attorney General [75-1152]

Order per CJ Bazelon granting NCCB’s

motion for leave to amend petition for review

[75-1064]

Amended petition for review [75-1064]

Motion of The Hearst Corp., for leave to

intervene [75-1064]

Motion of Scripps-Howard Broadcasting Co.,

et al., for leave to intervene [75-1064]

Motion of Belo Broadcasting Corp., for leave

to intervene [75-1064]

Motion of Washington Post Co., et al., for

leave to intervene [75-1064]

Motion of WHAS, Inc., for leave to intervene

[75-1064]

Motion of the American Newspaper Publishers

Assoc., for leave to intervene [75-1064]

Motion of General Electric Broadcasting

Company, Inc. for leave to intervene

[75-1064]

Motion of Forward Communications Corpora-

tion, et al. for leave to intervene [75-1064]

Motion of American Broadcasting Companies,

Inc. for leave to intervene [75-1064]

Mar. 6

Motion of Lee Enterprises, Inc., et al. for

leave to intervene [75-1064]

Motion of Illinois Broadcasting Company, Inc.

et al., for leave to intervene [75-1064]

Motion of Houston Post Company, et al. for

leave to intervene [75-1064]

Motion of Louisiana Television Broadcasting

Corp. for leave to intervene [75-1064]

Motion of KUTV, Inc. for leave to intervene

[75-1064]

Clerk’s order granting motions of Elyria-

Lorain Broadcasting Co., WEEU Broadcasting

Company, The Hearst Corp., Scripps-Howard

Broadcasting Co., Belo Breadcasting Corp.,

Washington Post Co., et al., WHAS, Inc., and

the American Newspaper Publishers Associ-

ation for leave to intervene herein; counsel

for the intervenors are encouraged to file

joint briefs wherever practicable and may

participate in oral argument only to the

extent all are able under Rule 12 of the

General Rules of this Court [75-1064]

Certified index to record [75-1064]

Clerk's order sua sponte, that the first

paragraph of the order filed February 28,

1975 is amended by adding the words “and

the W.E. Scripps Company” [75-1064]

FCC’s and US’s motion to consolidate

75-1064 and 75-1152 [75-1064, 75-1152]

Clerk’s order granting motions for General

Electric Broadcasting Co., Inc.; Forward

Communications Corp. et al.; American

Apr.

Broadcasting Co. Inc.; Lee Enterprises, Inc.;

Illinois Broadcasting Co. Inc.; Houston Post

Co. et al.; Louisiana Television Broadcasting

Corp., and KUTV Inc. for leave to intervene;

counsel for the intervenors are encouraged to

file joint briefs wherever practicable and may

participate in oral argument only to the

extent allowable under Rule 12 of the

General Rules of this Court [75-1064!

Gazette Printing Company’s petition for

review of an order of the FCC [75-1263]

Certified copy of a petition for review of an

order of the FCC mailed to the FCC and the

Attorney General [75-1263]

FCC’s motion to hold in abeyance [75-1064,

75-1152]

National Association of Broadcasters’ (NAB)

petition for review of an order of the FCC

[75-1289]

Certified copy of the petition for review of

an order of the FCC was mailed to the FCC

and the U.S. Attorney General [75-1289]

Clerk’s order granting FCC’s motion to

consolidate and Nos. 75-1064 and 75-1152

are consolidated for consideration on the

merits [75-1064, 75-1152]

United States petition for review of an order

of the FCC [75-1327]

Response of U.S. to motion of FCC to hold

in abeyance [75-1064]

Certified copy of a petition for review of an

order of the FCC was mailed to FCC and the

U.S. Attorney General [75-1327]

Joint motion of Lee Enterprises, Inc. and

WKY Television System, Inc. for leave to

intervene [75-1327]

NCCB’s motion for leave to file a response to

motion to hold in abeyance [75-1064]

Proceedings transferred from the United

States Court of Appeals for the 4th Circuit

75-1386, 75-1387, 75-1388]

Order granting motion of WHAS, Inc. for

leave to intervene (filed in 4th Circuit)

[ 75-1386, 75-1387, 75-1388]

Order granting motion of Louisiana Television

Broadcasting Corporation for leave to inter-

vene (filed in 4th Circuit) [75-1386, 75-1387,

75-1388]

Motion of the National Citizens Committee

for Broadcasting for leave to intervene (filed

in 4th Circuit) [75-1386, 75-1387, 75-1388]

Order granting consolidation of 75-1387,

75-1388 (filed in 4th Circuit) [75-1386,

75-1387, 75-1388]

FCC’s and US’s motion to further consolidate

case with Nos. 75-1263, 75-1289 and 75-1327

[75-1064, 75-1327, 75-1289, 75-1263]

Order per Wright ACJ, that the time for filing

NCCB’s brief in the consolidated cases is

extended to June 8, 1975 [75-1064]

Response of National Citizens Committee for

Broadcasting, to the FCC’s motion to hold in

abeyance [75-1064]

Clerk’s order granting NCCB’s motion to

accept late filed response to FCC’s motion to

hold in abeyance and the Clerk is directed to

file NCCB’s response to the motion to hold in

abeyance [75-1064]

Response of NCCB to the FCC’s motion to

hold in abeyance [75-1064]

Proceedings transferred from the U.S. Court

of Appeals for the 8th District [75-1379,

75-1064]

Motion of WHAS, Inc. for leave to intervene

(filed in 8th Circuit) [75-1379, 75-1064]

Motion of Louisiana Television Broadcasting

Corp. for leave to intervene (filed in 8th

Circuit) [75-1379, 75-1064]

FCC’s and US’s motion to transfer (filed in

8th Circuit) [75-1379, 75-1064]

WJAG’s, Inc. opposition for motion to

transfer (filed in 8th Circuit) [75-1379,

75-1064]

Clerk’s order granting motion by WHAS, Inc.

and Louisiana Television Corporation for

leave to intervene in this case. Counsel for the

intervenor may participate in oral argument

only to the extent allowable under Rule 12

of the General Rules of the Court [75-1379,

75-1064]

Motion of Chronicle Publishing Company, et

al. for leave to intervene [75-1327]

Clerk’s order granting FCC's and US’s motion

to consolidate and Nos. 75-1064, 75-1152,

75-1263, 75-1289, and 75-1327 are consoli-

dated for consideration on the merits

[75-1064, 75-1327, 75-1289, 75-1263]

Motion of Houston Post Company and

Channel Two Television Company for leave to

intervene [75-1327]

Motion of Pulitzer Publishing Company and

KSD/KSD-TV Inc. for leave to intervene

[75-1327]

Motion of American Newspaper Publishers

Association (ANPA) for leave to intervene

[75-1327]

Motion of KNUJ and Michelson Media Inc.

for leave to intervene [75-1327]

Motion of the Post Co. for leave to intervene

[75-1327]

Motion of KSL Inc. for leave to intervene

[75-1327]

Clerk’s Order granting motions of Lee Enter-

prises, Inc. and WKY Television System, Inc.,

Chronicle Publishing Company, et al., Hous-

ton Post Company, and Channel Two Tele-

vision Company, Pulitzer Publishing Com-

pany, and KSD/KSD-TV Inc., American

Newspaper Publishers Association, KNUJ and

Michelson Media Inc., Post Company and

KSL, Inc. for leave to intervene herein.

Counsel for the intervenors may participate in

oral argument only to the extent allowable

under Rule 12 of the general rules of this

Court [75-1327]

FCC’s and US’s motion to further consolidate

cases with 75-1379, 75-1386, 75-1387 and

75-1388 [75-1064, 75-1386, 75-1379]

Clerk’s order that FCC’s and US’s motions are

granted and Nos. 75-1379, 75-1386, 75-1387

and 75-1388 are consolidated with Nos.

75-1064, 75-1152, 75-1263 and 75-1289 and

75-1327 for consideration on the merits; and

the certified list of record filed in case No.

75-1064 be deemed filed in the consolidated

cases as of the date of this order [75-1064,

75-1386, 75-1379]

Certified index to record (originally filed in

No. 75-1064) [75-1289, 75-1263, 75-1152,

75-1327, 75-1387, 75-1386, 75-1379,

75-1388]

NAB’s motion for clarification of proceedings

and establishment of briefing schedule

[75-1289]

FCC’s and US’s response to NAB’s motion of

clarification of proceedings and establishment

of briefing schedule (filed by FCC) [75-1289]

Statement of Gazette Printing Company in

75-1263 in support of NAB’s motion for

clarification proceedings and establishment of

briefing schedule [75-1289]

Gazette Printing Company’s statement in

support of the motion for clarification of

proceedings and establishment of briefing

schedule filed in No. 75-1289 [75-1263]

United States’ response to NAB’s motion for

clarification of proceedings and establishment

of briefing schedule [75-1289]

Comments of Daily Telegraph Printing Com-

pany in Nos. 75-1387, in support of NAB’s mo-

tion for clarification of proceedings in establish-

ment of briefing schedule [75-1289, 75-1387]

June

Response of NCCB in No. 75-1064 to NAB’s

motion for clarification on proceedings in

establishment of briefing schedule [75-1289]

NCCB’s response to motion of NAB in No.

75-1289 for clarification of proceedings and

establishment of briefing schedule [75-1064]

NAB’s motion to dismiss petition in No.

75-1327 and strike pleadings filed by Justice

Department in all consolidated cases [75-1289,

75-1327]

Response of US in No. 75-1327 to motion to

dismiss petition and_ strike pleadings

[ 75-1327, 75-1289]

Order per CJ Bazelon that the time for filing

petitioners briefs in the consolidated cases is

extended to September 30th; no further

extensions of time for filing petitioners briefs

will be granted except for extraordinary cause

shown [75-1386, 75-1379, 75-1064]

ANPA’s petition for review of an order of the

FCC [75-1567]

Certified copy of petition for review of an

order of the FCC was mailed to the FCC and

the Attorney General of the United States by

certified mail return receipt requested

[75-1567]

FCC’s response to the motion to dismiss

petition and strike pleadings [75-1289]

NAB’s reply to response of United States, in

No. 75-1327 to motion to dismiss petition

and strike pleadings [75-1289, 75-1327]

July 8

Notice of Substitution of attorney for

intervenor, WHAS, Inc. [75-1064, 75-1379]

Brockway Company’s petition for review of

an order of the FCC [75-1614]

Certified copy of petition for review of an

order of the FCC was mailed to FCC and the

U.S. Attorney General; petition for review

was sent by certified mail return receipt

requested [75-1614, 75-1618]

Gray Communications Systems, Inc. petition

for review of an order of the FCC [75-1618,

75-1614]

Return receipt for copy of petition for review

of an order of the FCC from Attorney

General of the U.S. and FCC [75-1614]

FCC’s motion to consolidate case with Nos.

75-1567, 75-1614, and 75-1618 and motion

to deem record filed [75-1064, 75-1614,

75-1567, 75-1618, 75-1386, 75-1379]

Motion of WKY TV to change name to

Gaylord Broadcasting Company on the court

records [75-1064]

Clerk’s order granting FCC’s and US’s motion

to consolidate and Nos. 75-1064, 75-1152,

75-1263, 75-1289, 75-1327, 75-1379,

75-1386, 75-1387, and 75-1388 are hereby

consolidated for consideration on the merits;

the certified index to the record in 75-1064 is

deemed to be the certified index to the

record in 75-1567, 75-1614 and 75-1618

[75-1064, 75-1614, 75-1567, 75-1618,

75-1386, 75-1379]

Sept. 5

Clerk’s order, sua sponte, that this Court’s

order of July 14, 1975 is amended by

deleting the second paragraph thereof and

substituting therefor the following: the mo-

tion is granted and 75-1064, 75-1152,

75-1263, 75-1289, 75-1327, 75-1379,

75-1386, 75-1387, 75-1388, 75-1567,

75-1614, and 75-1618 are hereby consoli-

dated for consideration on the merits

(75-1064, 75-1614, 75-1618, 75-1567,

75-1379, 75-1386]

Clerk’s order granting motion of WKY

Television System Inc. to change name on

Court records and the Clerk is directed to

change the name of WKY Television System

Inc. in case Nos. 75-1064 and 75-1327 to

Gaylord Broadcasting Co. [75-1064]

FCC’s motion to leave to supplement the

record in Nos. 75-1567, 75-1614, and

75-1618 [75-1614, 75-1567, 75-1618]

Clerk’s order granting FCC motion for leave

to supplement the record in No. 75-1567,

75-1614, 75-1618 [75-1614, 75-1567,

75-1618]

Supplement to certified index to record

[75-1614, 75-1618, 75-1567]

Brockway Company’s motion to correct the

record in this case [75-1614]

Clerk’s order granting NCCB’s motion to

correct record in No, 75-1614 and counsel for

the party shall make appropriate arrangements

to include the Oct. 11, 1974 letter with

attachments from James W. Higgins, General

Oct.

Manager of the Brockway Company to

Richard E. Wiley, Chairman of the FCC as a

supplement item to the certified index to

record in these cases [75-1064]

Petitioner’s joint motion to proceed under

Rule 30(c) [75-1289, 75-1387]

Clerk’s order granting joint motion to proceed

under Rule 30(c) and counsel for parties in

the consolidated cases are granted leave to

proceed under the provision of Rule 30(c) of

the FRAP; in lieu of submitting one copy of

the typewritten or page proof brief provided

under Rule 30(c) of the FRAP, counsel for

the parties shall submit seven copies thereof

for filing; counsel for the parties are en-

couraged to file joint briefs wherever prac-

ticable [75-1064]

Brockway Company’s brief [75-1614]

Motion of Public Interest Research Group, et

al. for leave to file brief as amicus curiae

[75-1064]

Gray Communications Systems brief

[75-1618]

Owosso Broadcasting Company’s Inc. brief

[75-1152, 75-1289, 75-1263, 75-1387,

75-1614]

WJAG’s Inc. brief [75-1379]

US’s motion to dismiss petition for review

[75-1327]

NCCB’s motion for leave to file brief time

having expired [75-1064]

Order per CJ Bazelon granting NCCB’s

motion in No. 75-1064, for leave to file brief

time having expired, conditioned upon the

brief being brought into compliance with the

rules of this Court [75-1064]

NCCB’s brief [75-1064]

FCC’s motion to revise briefing schedule

[75-1064]

Motion of The Post Company for leave to file

motion for leave for change of intervention

[75-1064]

Motion of KNUJ, Inc. and Michelson Media,

Inc. for leave to file motion for leave for

change of intervention [75-1064]

Motion of the Chronicle Publishing Company,

et al. for leave to intervene, time having

expired [75-1064]

Clerk’s order granting FCC’s and US’s motion

to revise briefing schedule and the followiug

schedule shall apply; FCC’s and US’s brief -

January 5, 1976; reply brief February 10,

1976 [75-1064]

Per Curiam order that NCCB’s motion to

dismiss its petition in No. 75-1327 granted,

and the motion of NAB’s in No. 75-1289, to

dismiss petition, and stay pleadings, is dis-

missed as moot; Wright and McGowan, CJ

[75-1064]

Clerk’s order granting motion for leave to file

brief amicus curiae of the Public Interest

Research Group, et al. and the Clerk is

directed to file the brief of the Public Interest

Research Group, et al. [75-1064]

Nov.

Brief for amicus curiae Public Interest Re-

search Group, et al. [75-1064]

Motion of KSL, Inc. for leave to file motion

for leave to intervene [75-1064]

Motion of Pulitzer Publishing Company and

KSD/KSD-TV, Inc. for leave to file motion

for leave to change intervention from

#75-1327 to #75-1064 [75-1064]

Clerk’s order directing the Clerk to file the

motions for change of intervention of The

Post Co. and KNUJ, Inc. and Mickelson

Media, Inc. for leave to intervene [75-1064]

Clerk’s order directing the Clerk to file the

motions for change of intervention of The

Post Co. and KNUJ, Inc. and Mickelson Media,

Inc. and also Chronicle Publishing Co.;

Chronicle Broadcasting Co.; Buffalo Evening

News, Inc. and WBEN, Inc.; all aforesaid mo-

tions for leave to intervene are granted;

counsel for the intervenors may participate in

oral argument only to the extent allowable

under Rule 12 of the General Rules of this

Court [75-1064]

KNUJ, Inc. and Mickelson Media, Inc. motion

for leave for change of intervention

[75-1064]

The Post Company motion for leave for

change of intervention [75-1064]

Order per CJ Bazelon directing the Clerk to

file the motion of Pulitzer Publishing Co. and

KSD/KSD-TV, Inc. for leave for change of

interventior a No. 75-1064 and the motion

of KSL, ! for leave to intervene in the

Dec.

consolidated cases; the motions for interven-

tion are granted and counsel for the inter-

venors are encouraged to file joint briefs

wherever practicable and may participate in

oral argument only to the extent allowable

under Rule 12 of the General Rules of this

Court [75-1064]

The Pulitzer Publishing Co. and KSD/KSD-TV

Inc. motion for leave for change of interven-

tion [75-1064]

Motion of KSL Inc. for leave to intervene -

granted [75-1064]

FCC’s motion to revise briefing schedule

[75-1064]

Clerk’s order that the time for filing respon-

sive briefs in the cases is extended to January

26, 1976; the time for filing reply briefs, if

any, to US and FCC and supporting inter-

venors; briefs are extended until 45 days after

service of the brief [75-1064]

Owosso Broadcasting Company’s Inc. brief

[75-1152]

FCC’s motion to revise briefing schedule

[75-1064]

1976

Jan. 9 Clerk’s order granting FCC’s and US’s motion

to revise briefing schedule and the times for

filing the remaining papers in the consolidated

cases are extended as follows: Respondent’s

and supporting intervenors’ briefs shall be

filed by February 17, 1976; and Petitioners’

and supporting intervenors’ reply briefs, if

Feb. 10

any, shall be filed within 45 days after service

of respondents’ briefs [75-1064]

Intervenors’ (Elyria-Lorain Broadcasting Co.,

WEEU Broadcasting Co., WHAS, Inc., Louisi-

ana Television Broadcasting Corp., Belo

Broadcasting Corp., Hearst Corp., Scripps-

Howard Broadcasting Co., W.E. Scripps Co.,

Chronicle Broadcasting Co., Chronicle Publish-

ing Co., Buffalo Evening News, Inc., WBEN,

Inc., Lee Enterprises, Inc., Gaylord Broadcast-

ing Co., Houston Post Co., Channel Two TV

Co., KPRC Radio Co., Illinois Broadcasting

Co., Inc., and Lindsay-Schaub Newspapers,

Inc.) motion to adopt in toto brief of

intervenor, American Newspaper Publishers

Association [75-1618]

FCC’s motion for an order prohibiting Gray

Communications System’s Inc. and counsel

from prosecuting inaction which is now

pending in the U.S. District Court for the

middle district of Georgia [75-1618]

Gray Communications System’s response to

motion for an order prohibiting further

prosecution of the case pending in another

court [75-1618]

FCC’s reply to response to motion of an

order prohibiting prosecution of the case

pending in another court [75-1618]

Clerk’s order, sua sponte, that the order filed

November 6, 1975 is amended by adding the

number 75-1379 and deleting the number

75-1329 [75-1064]

American Newspaper Publishers Association’s

brief [75-1064]

KNUJ’s Inc.; Michelson Media’s, Inc. and the

Post Company’s joint brief [75-1064]

WHAS'’s, Inc. brief [75-1064]

Elyria-Lorain Broadcasting Company, WEEU

Broadcasting Company, Louisiana Television

Broadcasting Corp., to adopt in toto brief of

intervenor, The Washington Post Company

and Post-Newsweek Stations, Inc. [75-1064]

KSL’s Inc. brief [75-1064]

The Washington Post Company and Post-

Newswee® Stations, Capital Area’s, Inc. brief

[75-1064]

FCC’s motion for leave to file supplement to

reply filed February 10 [75-1618]

Washington Post Company and Post-

Newsweek Station’s et al. motion for leave to

amend brief [75-1064]

US’s brief [75-1064]

FCC’s brief [75-1064]

Clerk’s order granting intervenors’ Elyria-

Lorain Broadcasting Co., WEEU Broadcasting

Co., WHAS, Inc., and Louisiana Television

Broadcasting Corp., et al. motion to adopt in

toto brief of intervenor, American Newspaper

Publishers Association and the Clerk is

directed to transmit a copy of ANPA’s

motion to the division of this Court assigned

to consider the cases on the merits [75-1064]

Mar. 11

Clerk’s order granting intervenors’ Elyria-

Lorain Broadcasting Company, et al. to adopt

in toto brief of intervenors the Washington

Post Company and Post-Newsweek Stations,

Inc.; the Clerk is directed to transmit a copy

of the motion to the division of this Court

assigned to consider the case on the merits

[75-1064]

FCC’s motion for leave to file reply brief to

brief of US filed 2/17/76 [75-1064]

Clerk’s order granting FCC’s motion for leave

to file supplement to the reply [75-1618]

FCC supplement to reply to respond to

motion for an order prohibiting further

prosecution of the case pending in another

court [75-1618]

Clerk’s order granting intervenor’s (The Wash-

ington Post Company and Post-Newsweek

Station, Inc. et al.) motion for leave to

amend brief and counsel for the intervenors

shall make appropriate arrangements to insert

the substitute page [75-1064]

Order per CJ Bazelon that respondent, FCC,

is granted leave to file a reply brief the brief

of the United States not to exceed 25 pages,

and intervenors on its side are granted leave

to file a joint reply brief not to exceed 35

pages on or before April 5, 1976; sua sponte,

that the time for filing petitioners’ reply

briefs is extended until 45 days from the date

of service of the aforesaid reply briefs

[75-1064]

ANPA in No. 75-1567 motion to extend time

to file joint appendix to 21 days after service

of all reply briefs [75-1064]

Clerk’s order granting motion of American

Newspaper Publishers Association motion on

behalf of all petitioners to extend date for

submission of joint appendix and the time for

filing the joint appendix is extended to April

26th [75-1064]

ANPA’s motion to extend time to file joint

appendix to 21 days beyond filing petitioner’s

reply brief [75-1567]

NCCB’s motion to have this case and No.

75-1308 argued before the same _ panel

[75-1064]

Clerk’s order that the motion of ANPA’s

supplemental to extend date for submission

of joint appendix in case no. 75-1567 is

granted and the time for filing the joint

appendix of the parties in these consolidated

proceedings is extended to June 10, 1976

[75-1064]

FCC’s opposition to motion to have this case,

and No. 75-1308 argued before the same

panel (filed in No. 75-1308 only) [75-1064]

Motion of Intervenors’ (Chronicle Broadcast-

ing Co., The Chronicle Publishing Co., Buffalo

Evening News, Inc., WBEN, Inc., Houston

Post Co., Channel Two Television Co., KPRC

Radio Co., Illinois Broadcasting Co., Inc., and

Lindsay-Schaub Newspapers Inc.) to adopt in

toto the reply brief of Respondent, FCC

[75-1064]

Intervenors’ (Belo Broadcasting Corp., WHAS,

Inc., The Washington Post Co., and Post-

Newsweek Stations, Capital Area, Inc.) joint

reply brief [75-1064]

FCC’s brief (This is FCC reply brief)

[75-1064]

FCC’s opposition to motion to have this case

and No. 75-1308 argued before the same

panel [75-1064]

Intervenors’ (Washington Post Co., Post-

Newsweek Stations, Capital Area, Inc., Belo

Broadcasting Corp., WHAS, Inc., Louisiana

Television Broadcasting Corp.) motion to

substitute pages in joint reply brief [75-1064]

Clerk’s order granting intervenors’ (Washing-

ton Post Co., Post-Newsweek Stations, Capital

Area, Inc., Belo Broadcasting Corp., WHAS,

Inc., Louisiana Television Broadcasting Corp.)

motion filed April 7, 1976 to substitute pages

in joint reply brief and counsel for inter-

venors herein shall make appropriate arrange-

ments to correct the joint reply brief

[75-1064]

Clerk’s order granting intervenors’ (Chronicle

Broadcasting Co., et al.) motion to allow

intervenors to adopt in toto reply brief of

respondent FCC [75-1064]

Order per CJ Bazelon denying appellant’s

motion in No. 75-1308 for consecutive

amendment with Nos. 75-1604 et al.

[75-1064]

May 7

Per Curiam order that US’s and FCC’s motion

for an order prohibiting petitioners and

counsel from prosecuting an action which is

now pending in the US District Court for the

middle district of Georgia is referred to the

division of this Court assigned to hear this

case on the merits for disposition Robinson

and Wilkey [75-1618]

NAB’s motion to strike brief of the Depart-

ment of Justice and bar further participation

of de facto petitioner [75-1289]

Motion of the United States of America for

extension of time within which to respond to

motion of the National Association of

Broadcasters to strike [75-1289]

Clerk’s order granting motion of the United

States of America to extend time to respond

to NAB’s motion to strike to May 26, 1976

[75-1289]

NAB’s reply brief [75-1289, 75-1567]

The Brockway Company’s reply _ brief

[75-1614, 75-i6i8]

NCCB’s reply brief [75-1064]

US’s and FCC’s motion for leave to file

response to motion to strike brief of the

Department of Justice and bar further

participation of de facto petitioner [75-1289]

Motion of Pulitzer Publishing Co., et al. for

leave to withdraw intervention in consolidated

proceedings for review of FCC order

[75-1064]

Clerk’s order granting respondent (US) mo-

tion for leave to file response to motion to

strike brief of the Department of Justice and

bar further participation as de facto petitioner

[75-1289]

Response of US to motion to strike brief of

the Department of Justice and bar further

participation of the de facto petitioner

[75-1289]

Joint appendix volumes 1 and 2 [75-1152,

75-1263, 75-1387, 75-1614, 75-1567,

75-1618, 75-1386, 75-1379, 75-1388]

Clerk’s order that the motion of the Pulitzer

Publishing Co. and KSD/KSD-TV, Inc. for

leave to withdraw intervention in consolidated

proceedings is granted and the Clerk is

directed to remove the Pulitzer Publishing Co.

and KSD/KSD-TV, Inc. from the dockets as

an intervenor herein [75-1064]

Interventor’s, (KNUJ, Inc., Michelson Media,

Inc., and The Post Company) joint brief

[75-1064]

NAB’s brief [75-1289]

NAB’s reply brief [75-1289]

The Brockway Company’s brief [75-1614]

Intervenor’s (American Newspaper Publishers

Association) brief [75-1064]

Intervenors’ (The Washington Post Company,

Post-Newsweek Stations, Capital Area, Inc.)

brief [75-1064]

ANPA’s brief [75-1567]

July 13

Aug. 23

Sept. 9

ANPA’s reply brief [75-1567]

Intervenors’ (Belo Broadcasting Corporation

and WHAS, Inc., Louisiana Television Broad-

casting Corporation and The Washington Post

Co. and Post-Newsweek Stations, etc.) joint

reply brief [75-1064]

NCCB’s brief [75-1064]

NCCB’s reply brief [75-1064]

Respondent’s (FCC) brief [75-1064]

Respondent’s (US) motion for leave to file

printed brief late [75-1064]

Clerk’s order granting respondent’s (US)

motion for leave to file printed brief late

[75-1064]

Respondent’s (US) brief [75-1064] .

Clerk’s order that Gray Communications

System’s Inc. motion to strike brief of the

Department of Justice and bar further

participation as de facto petitioner is denied

[75-1064]

Clerk’s order that consideration of the motion

of FCC’s and US’s for an order prohibiting

further prosecution of the case pending in

another court is deferred pending oral argu-

ment on September 17, 1976 [75-1618]

FCC’s consent motion to enlarge and allocate

the time to present oral argument [75-1064]

Joint motion to dismiss [75-1263]

Clerk’s order that the FCC’s and US’s motion

to extend and allocate time to present

argument is granted and the following allot-

Nov. 26

ment of time shall control oral argument; 40

minutes to be allocated among: Petitioner

ANPA,; Petitioner NAB: Counsel representing

individual Petitioners subject to the Divesti-

ture requirement; 40 minutes to be allocated

among: Petitioner NCCB; Respondent U.S.A.;

40 minutes to be allocated among: Respon-

dent FCC; Intervenors The Washington Post

Co., Post-Newsweek Stations, Capital Area,

Inc.; individual parties shall promptly notify

the Court of the identity of counsel to

present argument and the total time to be

taken within each allotment [75-1064]

Argued before CJ Bazelon; Wright and

Robinson, CJ; The Court granted counsel for

the petitioner in No. 75-1289 to lodge 4

volumes of Mass Communications in the U.S.

- 1970 with the Clerk [75-1064]

Volumes of Mass Communications of the US -

lodged in File Room [75-1064]

Per Curiam order granting joint motion to

dismiss and the petition for review is

dismissed. CJ] Bazelon; Wright and Robinson,

CJ [75-1263]

Per Curiam order that the motion of the

respondent, FCC, for an order restraining

further prosecution by petitioner, Gray Com-

munications Systems, Inc. is hereby denied

without prejudice, however, to renewal as

warranted by any change in present circum-

stances [75-1618]

Mar.

1977

Opinion for the Court filed by Chief Judge

Bazelon [75-1064]

Judgment that the rulemaking order under

review herein is affirmed only insofar as it

operates prospectively; those portions of said

order that have a retroactive effect and those

portions dealing with existing combinations

are vacated; and the record is remanded to

the commission for adoption of rules not

inconsistent with the opinion of this Court

filed herein this date [75-1064]

FCC’s motion for stay of mandate [75-1064]

NAB’s statement in support of motion for

stay of mandate [75-1289]

NCCB’s partial opposition to motion for stay

of mandate [75-1064]

FCC’s reply to partial opposition to motion

for stay of mandate [75-1064]

Respondent’s (US) response to motion for

stay of mandate [75-1064]

Motion of San Joaquin Communications

Corp. for leave to submit opposition to

motion for stay of mandate as an’ amicus

curiae [75-1064]

FCC’s opposition to motion of San Joaquin

Communications Corp. for leave to submit

Opposition to motion for stay of mandate as

an amicus curiae [75-1064]

June 6

Opinion per cunam on motion to stay

mandate. (ISSUED IN XEROX FORM BUT

TO BE PRINTED AT A LATER DATE.)

[75-1064]

Per Curiam order that the motion of the FCC

is granted and the Clerk is directed not to

issue the mandate in these cases prior to April

23, 1977 for the reasons set forth in the

opinion of this Court released this day in

xeroxed form, and in accordance therewith

CJ Bazelon; Wright and Robinson [75-1064]

Per Curiam order amending opinion of April

5, 1977 [75-1064]

Printed copies of opinion of April 5, 1977

released this date [75-1064]

Certified copy of notice from Clerk, S.C.,

that writ of certiorari was filed on 4-22-77 in

S.C. No. 76-1471 [75-1064]

Notice of filing petition for writ of certiorari

in S.C. No. 76-1521 on May 2, 1977

[75-1064]

Notice of filing petition for writ of certiorari

in S.C. No. 76-1595 on May 13, 1977

[75-1289]

Notice of filing of a petition for writ of

certiorari in S.C. No. 76-1604 on May 16,

1977 [75-1064]

Notice of filing petition of writ of certiorari

in S.C. No. 76-1624 on May 20, 1977

[75-1064] .

Certified copy of notice from Clerk, Supreme

Court that writ of certiorari was filed on May

27, 1977 in S.C. No. 76-1685 [75-1064]

Communications Act of 1934, .48 Stat. 1064, as

amended, 47 U.S.C. 151 et seq.

§ 152. Application of chapter.

(a) The provisions of this chapter shall apply to

all interstate and foreign communication by wire or

radio and all interstate and foreign transmission of

energy by radio, which originates and/or is received

within the United States, and to all persons engaged

within the United States in such communication or

such transmission of energy by radio, and to the

licensing and regulating of all radio stations as here-

inafter provided; but it shall not apply to persons

engaged in wire or radio communication or trans-

mission in the Canal Zone, or to wire or radio com-

~ ene, or transmission wholly within the Canal

one.

§ 154. Federal Communications Commission.

* * * * & &

(i) Duties and powers.

The Commission may perform any and all acts,

make such rules and regulations, and issue such

orders, not inconsistent with this chapter, as may be

necessary in the execution of its functions.

(j) Conduct of proceedings; hearings.

The Commission may conduct its proceedings in

such manner as will best conduct to the proper

dispatch of business and to the end of justice. No

commissioner shall participate in any hearing or

proceedings in which he has a pecuniary interest.

Any party may appear before the Commission and

be heard im person or by attorney. Every vote and

official act of the Commission shall be entered of

record, and its proceedings shall be public upon the

request of any party interested. The Commission

is authorized to withhold publication of records or

proceedings containing secret information affecting

the national defense.

§ 301. License for radio communication or transmis-

sion of energy.

It is the purpose of this chapter, among other

things, to maintain the control of the United States

over all the channels of interstate and foreign radio

transmission; and to provide for the use of such

channels, but not the ownership thereof, by persons

for limited periods of time, under licenses granted

by Federal authority, and no such license shall be

construed to create any right, beyond the terms,

conditions, and periods of the license. No person

shall use or operate any apparatus for the transmis-

sion of energy or communications or signals by

radio (a) from one place in any Territory or pos-

session of the United States or in the District of

Columbia to another place in the same Territory,

possession, or Distnct; or (b) from any State, Ter-

ritory, or possession of the United States, or from

the District of Columbia to any other State, Termi-

tory, or possession of the United States: or (c) from

any place in any State, Territory, or possession of

the United States, or in the District of Columbia,

to any place in any foreign country or to any ves-

sel; or (d) within any State when the effects of such

use extend beyond the borders of said State, or

when interference is caused by such use or opera-

tion with the transmission of such energy, commu-

nications, or signals from within said State to any

place beyond its borders, or from any place beyond

its borders to any place within said State, or with

the transmission or reception of such energy, com-

munications, or signals from and/or to places

beyond the borders of said State; or (ec) upon any

vessel or aircraft of the United States; or (f) upon

any other mobile stations within the jurisdiction of

the United States, except under and in accordance

with this chapter and with a license in that behalf

granted under the provisions of this chapter.

§ 303. Powers and duties of Commission.

Except as other wise provided in this chapter, the

Commission from time to time, as public conven-

lence, interest, or necessity requires, shall—

i a ee

(g) Study new uses for radio, provide for experi-

mental uses of frequencies, and generally encourage

the larger and more effective use of radio in the

public interest;

n @¢.8 8 6

(r) Make such rules and regulations and prescribe

such restrictions and conditions, not inconsistent

with law, as may be necessary to carry out the pro-

visions of this chapter, or any international radio or

wire communications treaty or convention, or regu-

lations annexed thereto, including any treaty or con-

vention insofar as it relates to the use of radio, to

which the United States is or may hereafter become

a party.

§307. Licenses; allocation of facilities; terms;

renewals.

(a) The Commission, if public convenience,

interest, or necessity will be served thereby, subject

to ro nigrewe of this chapter, shall sre to ras

applicant therefor a station license i

aun provided for by

i Sa a i

(d) No license granted for the operation of a

broadcasting station shall be for a longer term than

threee years and no license so granted for any other

class of station shall be for a longer term than five

years, and any license granted may be revoked as

hereinafter provided. Upon the expiration of any

license, upon application therefor, a renewal of such

license may be granted from time to time for a

term of not to exceed three years in the case of

broadcasting licenses, and not to exceed five years

in the case of other licenses, if the Commission finds

that public interest, convenience, and necessity

would be served thereby. In order to expedite action

on applications for renewal of broadcasting station

licenses and in order to avoid needless expense to

applicants for such renewals, the Commission shall

not require any such applicant to file any informa-

tion which previously has been furnished to the

Commission or which is not directly material to the

considerations that affect the granting or denial

of such application, but the Commission may

require any new or additional facts it deems neces-

sary to make its findings. Pending any hearing and

final decision on such an application and the dispo-

sition of any petition for rehearing pursuant to sec-

tion 405 of this title, the Commission shall continue

such license in effect. Consistently with the forego-

ing provisions of this subsection, the commission

may by rule prescribe the period or periods for

which licenses shall be granted and renewed for par-

ticular classes of stations, but the commission may

not adopt or follow any rule which would preclude

it, in any case involving a station of a particular

class, from granting or renewing a license for a

shorter period than that prescribed for stations of

such class if, in its judgment, public interest, conven-

ience, or necessity would be served by such action.

§ 309. Application for license.

(a) Considerations in granting application.

Subject to the provisions of this section, the

Commission shall determine, in the case of each

application filed with it to which section 308 of this

title applies, whether the public interest, conven-

lence and necessity will be served by the granting

of such application, and, if the Commission, upon

examination of such application and upon consid-

eration of such other matters as the Commission

may officially notice, shall find that public interest,

convenience, and necessity would be served by the

granting thereof, it shall grant such application.

ia he es

(d) Petition to deny application; time; contents;

reply ; findings.

(1) Any party in interest may file with the Com-

mission a petition to deny any application (whether

as originally filed or as amended) to which sub-

section (b) of this section applies at any time prior

to the day of Commission grant thereof without

hearing or the day of formal designation thereof

for hearing; except that with respect to any classi-

fication of applications, the Commission from time

to time by rule may specify a shorter period (no

less than thirty days following the issuance of public

notice by the Commission of the acceptance for

filing of such application or of any substantial

amendment thereof), which shorter period shall be

reasonably related to the time when the applica-

tions would normally be reached for processing.

The Petitioner shall serve a copy of such petition

on the applicant. The petition shall contain specific

allegations of fact sufficient to show that the peti-

tioner is a party in interest and that a grant of the

application would be prima facie inconsistent with

subsection (a) of this section. Such allegations of

fact shall, except for those of which official notice

may be taken, be supported by affidavit of a person

or persons with personal knowledge thereof. The

applicant shall be given the opportunity to file a

reply in which allegations of fact or denials thereof

shall similarly be supported by affidavit.

[22 F.C.C. 2d 306] F.C.C. 70-310

BEFORE THE

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

Docket No. 18110

In the Matter of

Amendment of Sections 73.35, 73.240 and

73.636 of the Commission Rules Relating

to Multiple Ownership of Standard, FM

and Television Broadcast Stations.

First Report and Order

(Adopted March 25, 1970)

By the Commission: Chairman Burch concurring in part

and dissenting in part and issuing a statement:

Commissioner Robert E. Lee dissenting: Commis-

sioner Wells dissenting and issuing a statement.

1. The Commission has before it (1) a “Notice of

Proposed Rulemaking” (33 F.R. 5315) adopted March

27, 1968, which commenced this proceeding and

established an interim policy! for dealing with

applications for broadcast station authorizations during

the pendency of the proceeding: (2) a “Memorandum

Opinion and Order” (12 F.C.C. 2d 912), adopted May

15, 1968, which denied petitions for reconsideration of

'The interim policy is discussed in pars. 74-78, infra.

the interim policy, answered questions that had arisen

concerning that policy, and clarified the proposed rule

amendments contained in the notice; and (3) com-

ments, reply comments, and other material filed in

response to the notice.”

THE COMMISSION’S PROPOSAL

2. In this proceeding, the Commission proposed to

amend the present multiple-ownership rules so as to

prohibit the granting of any application for a broadcast

license if after the grant the licensee would own,

operate, or control two or more full-time broadcast

stations within the market. The proposed amended rules

would apply to all applications for new stations and for

assignment of license or transfer of control except

assignment and transfer applications filed pursuant to

the provisions of section 1.540(b) or i.541(b) of the

rules (i.c., pro forma or involuntary assignments and

transfers) and applications for [307] assignment or

transfer to heirs or legatees by will or intestacy.

Divestiture, by any licensee, of existing facilities would

not be required. The remainder of this section sets the

proposal in perspective.

2 Approximately 120 parties participated in the proceeding.

They are listed in appendix A. If a party consisted of two or

more entities making a joint filing, the names of the entities are

listed under the name of the lead entity. The short designation

of every party referred to in the present document appears in

parentheses following the full name in appendix A. Participating

parties include the three major networks, Mutual Broadcasting

System, Inc., the National Association of Broadcasters, numerous

State broadcasters associations, the All-Channel Television

Society, the Association of Broadcasting Standards, Inc., the

Community Broadcasters Association, Inc., individual and

multiple owners and the Department of Justice.

3. The multiple-ownership rules of the Commission

have a twofold objective: (1) Fostering maximum

competition in broadcasting, and (2) promoting diversi-

fication of programing sources and viewpoints. The

rules are essentially the same for the standard, FM, and

television broadcast services and, respectively, appcar in

47 CFR §§73.35, 73.240, and 73.636 (1969). Each of

these sections is divided into two parts, the first of

which is known as the d@uopoly rule, and the second of

which is often called the concentration of control rule.*

4. The concentration of control rules aim at

achieving the aforementioned twotold objective na-

tionally and regionally by providing that a license for a

broadcast station will mot be granted *o a party if the

grant would resulf m chat party's owming, operating, or

controlling more than a specified number of stations in

the same broadcast service. For AM the number is 7,

for FM ix is 7, and for TV it is 7, with no more than 5

being VHF. The rules also provide that a grant will not

be made, cwem though it would not result in exceeding

these specified maximums, if it would result in undue

concentration of control contyary to the public interest

(some of the criteria for making such a determination

are contained in the rules).

SFor a brief history of the duopoly and concentration of

control rules, see Multiple Ownership (docket No. 14711), 27

F.R. 6846, at par. 3 (1962); Multipie Ownership (docket No.

16068), 30 F.R. 8166, at par. 3 (1965), 33 F.R. 3078,

concurring opinion of Commissioner Loevinger in which

Commissioner Wadsworth joined (1968); Network Broadcasting,

H.R. 1297, 85th Cong., 2d sess., 553-599 (1958). Recent rule

amendments not covered in the foregoing appear in Multiple

Ownership of AM, FM, and TV Stations, 13 F.C.C. 2d 07

(1968). A pending proposal to amend the rules with regard to

bank holdings of broadcast stocks appears in Multiple Ownership

(docket No. 18751), 34 F.R. 19032 (1969).

5. While the comcentration of comsrol rules aim at

attaining the twofold objectwe nationally and re-

gionally, the duopoly rules are designed to attain it

locally and regionally by providing that a license for a

broadcast station will not be granted to a party that

owns, operates, or controls a station in the same

broadcast service a specified contour of which would

overlap the same contour of the station proposed to be

licensed. (For AM stations the predicted or measured

i-mv./m. groundwave contours must not overlap: for

FM, the predicted l-mv./m. contours; for TV, the

predicted grade B contours.) In broader language, the

duopoly rules prohibit a party from owning, operating,

or controlling more than one station in the same

broadcast service in the same area. However, they do

not prevent a single party from owning, operating, or

controlling more than one station in the same area if

each station is in a different service. Hence, a single

licensee often has a standard, an FM, and a television

broadcast station in one community.

6. The proposal in this proceeding is in essence an

extension of the present duopoly rules, since it would

proscribe common ownership, operation, or control of

more than one unlimited-time broadcast station in the

same area, regardless of the type of broadcast service

involved.*

THE RULES ADOPTED HEREIN

{308} 7. All but four of the commenting parties op-

posed the proposal. Some opponents urge that if the

Commission, over the objections they raise, should

*The proposal applies to commercial stations and not to

noncommercial educational stations.

decide to adopt rules they should not be the ones

proposed in the notice but a modification thereof

(various modifications are suggested). The four parties

supporting the proposal believe that it does not go far

enough and urge the Commission to take various

further steps. We have carefully considered all of the

comments and other material filed in this proceeding

and, for the reasons set forth hereinafter, are of the

view that it is in the public interest to adopt the rules

contained in appendix B hereto. With some exceptions,

they are the same as those which we proposed in the

notice as clarified by the memorandum opinion and

order. A brief description of the rules follows.

8. The memorandum opinion and order (par. 1,

supra) noted that since the rules proposed in the notice

were in essence an extension of the present duopoly

rules, the Commission would (without intending to

prejudice the meaning of “‘market” in any rules that

might be adopted) use the overlap concept in the

present duopoly rules for purposes of administering the

interim policy. As previously stated (par. 5, supra),

those rules proscribe overlapping of specific service

contours of commonly owned stations. We determined

that for the interim policy if granting an application

would result in one party’s owning, operating, or

controlling two or more full-time broadcast stations

with overlap of those contours, the stations would be

considered to be in the same market and the

application would not be acted on until the termination

of this proceeding. Thus, for example, if an application

were for a TV license and the grade B contour of the

proposed station would overlap the 1-mv./m. contour of

a commonly owned, operated, or controlled full-time

aural station, the application would be held in abeyance

until the termination of this proceeding.

9. The concept of market in the rules adopted today

differs from that used in administering the interim

policy. The new rules retain the previous duopoly rules

intact, that is, they proscribe common ownership of

television stations if the grade B contours overlap, of

AM stations if the l-mv./m. contours overlap, and of

FM stations if the l-mv./m. contours overlap. However,

in extending the duopoly rules to proscribe common

ownership of stations in different broadcast services in

the same area, the standard is different: Common

ownership of a TV station and an AM< station is

prohibited if the grade A contour of the former

encompasses the entire community of license of the

latter, or if the 2-mv./m. contour of the latter

encompasses the entire community of license of the

former. The same principle applies to FM stations in

relation to TV or AM< stations, with the 1-mv./m.

contour of the FM station being the criterion, for

example, if the 1l-mv./m. contour of the FM station

encompasses the entire community of license of an AM

station or the 2-mv./m. contour of the AM station

encompasses the entire community of license of the FM

station, common ownership of the stations is not

permitted. The aforementioned encompassment stand-

ard applies whether the stations in question are licensed

to serve the same community or different communities.

[309] 10. The new rules are phrased in terms of

proscribed overlap, for stations in the same broadcast

service (that is, the previously existing duopoly rules),

and proscribed encompassment, for stations in different

broadcast services: they do not use the term “market.”

However, since the proposal in the notice used the term

and invited comments on how it should be defined, and

since the comments therefore use it, the following

discussion herein uses it also. When used, of course, it

means stations with the proscribed overlap or encom-

passment.

11. With one exception, the rules adopted provide

that no license for an AM (daytime or full time), FM,

or television broadcast station will be granted to a party

that already owns, operates, or controls one or more

full-time stations which, if the grant were made, would

be in the same market as the proposed station. The

exception: The licensee of a class IV AM station.which

is licensed to serve a community of less than 10,000

population will be permitted to obtain a license for an

FM station even though the two stations would be in

the same market. (This would not be permitted,

however, if the FM station would also be in the same

market as a commonly owned, operated, or controlled

TV station.)

12. The licensee of a daytime-only AM station not

having a license for an FM station in the area may

obtain a license for an FM station that would be in the

same market. Note, however, that according to the

statement in the previous paragraph, an FM licensee

could not obtain a daytime-only AM license in the same

market.

13. A party having no broadcast stations in a

community may obtain a license for only one station

there—TV, AM (daytime only or full time), or FM.

However, such a party may obtain licenses for an

et eee ts Oe cane mates by

way of assignment or transfer if a proper showing is

made by the seller that for economic or technical

reasons the stations cannot be sold and operated

separately.

14. No divestiture, by any licensee, of existing

facilities will be required at this time. The rules will

apply to all applications for new stations and for

assignment of license or transfer of control except

assignment and transfer applications filed pursuant to

the provisions of section 1.540(b) or 1.541(b) of the

rules (that is, pro forma or involuntary assignments or

transfers) or applications for assignment or transfer to

heirs or legatees by will or intestacy that would not

result in violation (for example, the licensee of an

existing full-time station could not, as heir or legatee,

be the assignee or transferee of other stations that

would be in the same market as the existing station).

Applications involving television satellite stations and

aural stations in the same market will be handled on a

case-by-case basis. With some exceptions, for example,

applications for increases in power by class IV AM

stations, the rules will apply to applications for major

changes in facilities, but certain applications of that

type (and of all other types) pertaining to UHF stations

will be handled on a case-by-case basis.

15. An examination of notes 7 and 8 in the present

duopoly rules and notes 7 and 8 in the new rules in

appendix B will show that the topics mentioned in the

preceding paragraph generally are covered therein and

that the latter notes merely modify the former to

embrace the broader concept of duopoly contained in

the new rules.

[310] THE BASIS AND PURPOSE OF THE RULES

16. Basic to our form of government is the belief

that “the widest possible dissemination of information

from diverse and antagonistic sources is essential to the

welfare of the public.” (Associated Press v. United

States, 326 U.S. 1, 20 (1945).)° Thus, our Constitution

rests upon the ground that “the ultimate good desired

is better reached by free trade in ideas—that the best

test of truth is the power of the thought to get itself

accepted in the competition of the market.” Justice

Holmes dissenting in Abrams v. United States, 250 U.S.

616, 630 (1919).

17. These principles, upon which Judge Learned

Hand observed that we had staked our all, are the

wellspring, together with a concomitant desire to

prevent undue economic concentration, of the Com-

mission’s policy of diversifying control of the powertul

medium of broadcasting. For, centralization of control

over the media of mass communications is, like

monopolization of economic power, per se undesirable.

The power to control what the public hears and sees

over the airwaves matters, whatever the degree of

self-restraint which may withhold its arbitrary use.

18. It is accordingly firmly established that in

licensing the use of the radio spectrum for broadcasting,

we are to be guided by the sound public policy of

placing into many, rather than a few hands, the control

of this powerful medium of public communication.

(“Amendment of Sections 3.35, etc.,” 18 F.C.C. 288

(1953), affirmed United States v. Storer Broadcasting

‘This is because “right conclusions are more likely to be

gathered out of a multitude of tongues, than through any kind

of authoritative selection.” (United States v. Associated Press, 52

F. Supp. 362, 372 (S.D. N.Y., 1943), affirmed 326 U.S. 1

(1945).) Thus, our rules are not based upon the proposition

disputed by Prof. George H. Litwin, in his study submitted on

behalf of the NAB, that common ownership within one medium

or of more than one medium results in any particular degree of

control of what people think and how they act.

Co., 351 U.S. 192 (1956); 99 U.S. App. D.C. 369, 240

F. 2d 55 (1956).) This basic principle, enforcible in ad

hoc proceedings or through rulemaking, applies to the

judgment of whether an individual application should

be granted as well as to the comparison of competing

applicants. (United States v. Storer Broadcasting Co.,

supra; Clarksburg Publishing Co. v. Federal Communica-

tions Commission, 96 U.S. App. D.C, 211,225 F. 2d

511 (1955); Scripps-Howard Radio, Inc. »v. Federal

Communications Commission, 89 U.S. App. D.C. 13,

189 F.2d 677 (1951), cert. den. 342 U.S. 830; Plains

Radio Broadcasting Co. v. Federal Communications

Commission, 85 U.S. App. D.C. 48, 175 F. 2d 359

(1949).°

19. It is true that section 315 of the Communica-

tions Act, the Commission’s Fairness Doctrine, and the

Commission’s rules relating to personal attacks and

station editorials on candidates for public office all

contribute substantially toward insuring that, whatever

a station’s ownership, and the views of the licensee,

each station will present conflicting viewpoints on

controversial issues. However, this is not enough. For,

as was stated in Scripps-Howard Radio, Inc. v. Federal

Communications Commission, 89 U.S. App. D.C. 13,

19, 189 F.2d 677, 683 [311] (1951), cert. den. 342

U.S. 830, the key to the question is the public interest

in acquiring information from diverse and antagonistic

sources, and news communicated to the public is

subject to selection and, through selection, to editing,

and * * * in addition there may be diversity in methods,

6 such consideration is not the arbitrary discrimination which

has been said in a dictum, Stahiman v. Federal Communications

Commission, 75 U.S. App. D.C. 176, 126 F. 2d 124 (1942), to

be beyond the Commission's legitimate powers.

manner and emphasis of presentation, This is true not

only with respect to news programs, but also the entire

range of a station’s treatment of programs dealing with

public affairs.

20. As pointed out above, the governing considera-

tion here is power, and power can be realistically

tempered on a structural basis. It is therefore no answer

to the problem to insist upon a finding of some specific

improper conduct or practice. The effects of joint

ownership are likely in any event to be so intangible as

not to be susceptible of precise definition. The law is

clear that specific findings of improper harmful conduct

are not a necessary element in Commission action in

this area, and that remedial action need not await the

feared result.

21. Application of the principles set forth above

dictates that one person should not be licensed to

operate more than one broadcast station in the same

place, and serving substantially the same public, unless

some other relevant public interest consideration is

found to outweigh the importance of diversifying

control. It is elementary that the number of frequencies

available for licensing is limited. In any particular area

there may be many voices that would like to be heard,

but not all can be licensed. A proper objective is the

maximum diversity of ownership that technology

permits in each area. We are of the view that 60

different licensees are more desirable than 50, and even

that 51 are more desirable than 50. In a rapidly

changing social climate, communication of ideas is vital.

If a aty has 60 frequencies available but they are

licensed to only 50 different licensees, the number of

sources for ideas is not maximized. It might be the 51st

licensee that would become the communication channel

for a solution to a severe local social crisis. No one can

say that present licensees are broadcasting everything

worthwhile that can be communicated. We see no

existing public interest reason for being wedded to our

present policy that permits a licensee to acquire more

than one station in the same area.’

7MBS states its conviction that it can only become stable and

viable as a network by having AM, FM, and perhaps TV, stations

in major markets. It avers that it presently owns no broadcast

stations, that it has publicly announced its intention to acquire

AM, FM, and TV stations, and that the rule would prevent it

from having more than one station in a market, At the same

time, the networks with which it competes would not be

divested, so that MBS could not achieve parity with them. It

argues that the importance of competition among networks has

been recognized in the KOB case (American Broadcasting-

Paramount Theatres, Inc. v. FCC, 108 U.S. App. D.C. 83, 280 F.

2d 631 (1960), 345, F. 2d 954 (1965) and that under the

decision in that case the Commission is required to provide

comparable facilities for all networks. Hence, as a matter of law,

MBS says, the Commission could not apply the rules, if adopted,

to MBS.

Adoption of rules herein does not mean an end to a flexibility

that would, for example, permit the Commission to allow MBS

to acquire more than one station in a market, for as the Supreme

Court said in National Broadcasting Co. v. United States, 319

U.S. 190, 225 (1943), sustaining the chain broadcasting

regulations:

“The Commission * * * did not bind itself inflexibly to the

licensing policies expressed in the Regulations. In each case that

comes before it the Commission must still exercise an ultimate

judgment whether the grant of a license would serve the ‘public

interest, convenience, or necessity.’ ”

And Storer, supra, in sustaining the concentration of control

portion of the multiple ownership rules, quoted that statement

from National Broadcasting Co. and went on to say (at 205):

“That flexibility is here under the present §309(a) and (b)

and the FCC's regulations * * * We read the Act and Regulations

as providing a ‘full hearing’ for applicants who have reached the

existing limit of stations, upon their presentation of applications

[footnote continued]

[312] 22. It is true that many communities have

multiple broadcast and other communications media,

But it is also true that the number of daily newspapers

has been decreasing, a fact which increases the

significance of the broadcast medium. Material attached

to the NAB reply comments shows the number of cities

with commercially competing local dailies to be 45 in

1968. In 1962 the figure was 61.° In our view, as we

have made clear above, there is no optimum degree of

diversification, and we do not feel competent to say or

hold that any particular number of outlets of

expression is enough. We believe that the increased

amount of broadcast service now available also forms

the basis for the conclusion that, with the exceptions

mentioned later herein, it is no longer necessary to

permit the licensing of combined operations in the same

market, as was the case in the early days of

broadcasting, in order to bring service to the public. It

conforming to Rules 1.361(c) and 1.702, that set out adequate

reasons why the Rules should be waived or amended. The Act,

considered as a whole, requires no more.”

It is not clear that MBS could not achieve a competitive

posture through the ownership of the permissible number of AM,

FM, and TV stations in separate markets. However, MBS would

be entitled to a full hearing if it filed applications with requests

for waiver of the new rules setting out adequate reasons why it

should be permitted to obtain more than one station in an area.

A full hearing could similarly be obtained by ABC, which

argues that its competitive position could be improved by

merging with a larger company, but that the advantages of

merger would be nullified by the new rules which would require

it to divest of all but one of its owned and operated stations in

each market it is licensed to serve in order to obtain approval of

the merger request.

8 Raymond B. Nixon, “Trends in U.S. Newspaper Ownership:

Concentration with Competition,” Gazette, vol. XIV, No. 3

1968, PP- 8-9.

is urged that the Commission not only permitted but

encouraged AM licensees to become TV licensees in

their own area, and again, later, to acquire FM stations

in their area, that it is inequitable now not to permit

such common ownership for it robs such owners of the

fruits of their risk taking, and that the rules will hinder

FM and UHF development. At the time that such

encouragement was given to AM licensees, we con-

sidered that the objective of encouraging the larger and

more effective use of radio was overriding, for TV and

FM channels were lying unused, But conditions have

changed, and we are obligated to change the priority of

our objectives, in the public interest.

23. It is said that the good profit position of a

multiple owner in the same market results in more

in-depth informational programs being broadcast and,

thus, in more meaningful diversity. We do not doubt

that some multiple owners may have a greater capacity

to so program, but the record does not demonstrate

that they generally do so. The citations and honors for

exceptional programing appear to be continually

awarded to a very few licensees—perhaps a dozen or so

multiple owners out of a total of hundreds of such

owners. Although multiple owners may have more

funds for experimental programing and innovation,

there has been no showing that the funds are spent for

these purposes. However, accepting arguendo that some

multiple licensees do a better programing job in this

respect than do single station licensees, we are not

reducing the holdings of multiple licensees. Moreover,

the further notice being issued today, which would

require divestiture over a period of time, would not

reduce the financial strength of multiple owners that

presumably leads to an ability to engage in such

programing. Rather, it would maximize the number of

different licensees in each market but would permit the

purchase by divested licensees of a similar number of

stations in other markets.

[313] 24. Finally, the argument is made that rules

prohibiting a present owner of a single full-time station

in a community from obtaining additional stations there

would be illegally discriminatory because they would

prevent him from competing effectively with combina-

tion owners in the area and would make a privileged

class out of combination owners. Therefore, it is

argued, if the rules are adopted, divestiture should be

required. The decision to refuse to permit additional

local concentration in the future does not necessarily

require that existing situations all be uprooted. On an

overall basis, there has been no showing that single

Stations cannot compete effectively with combination

owners. We are herewith instituting new rulemaking to

consider the need for divestiture and will there consider

the arguments in its favor.® Individual cases can of

course always be dealt with where necessary to preserve

adequate competition. But a line must be drawn

somewhere, and the application of new policy to new

applications is a clearly reasonable approach.

25. Although the principal purpose of the proposed

rules is to promote diversity of viewpoints in the same

area, and it is on this ground that our above discussion

is primarily based, we think it clear that promoting

diversity of ownership also promotes competition. A

number of comments were made with respect to the

competitive advantage that licensees of coowned

stations have over the single station licensee in the same

See par. 68, infra.

area. Thus, the Department of Justice points out that

AM, FM, and TV are for many purposes sufficiently

interchangeable to be directly competitive, and that

competitive considerations support adoption of the

rules. It mentions that one effect of combined

ownership of broadcast media in the same market is to

lessen the degree of competition for advertising among

the alternative media. Another, it is averred, is that a

combined owner may use practices which exploit his

advantage over the single station owner. These practices

may include special discounts for advertisers using more

than one medium, or cumulative volume discounts

covering advertising placed on more than one medium.

Mount Wilson, Freddot, and Lunde present similar

arguments about such practices.'®

26. Opponents of the proposed rules state that there

is no hard evidence that multiple licensees generally

engage in practices of this kind. CBS says that the

argument about such practices provides no justification

for the rules for the Commission long ago addressed

itself to the matter (Combination Advertising Rates, 24

Pike & Fischer, R.R. 930 (1963) ), and there is no

significant problem in this area. A study commissioned

by WGN and others purports to find no statistical

evidence that revenue yields for multiple owners are

significantly different from yields of single-station

OT Ke topic is outside the scope of this docket. If rules were

contemplated, they would have to be handled in a separate

proceeding. The same would be true of the question of call

letters. Comments herein suggest that the use of identical letters

for commonly owned stations in the same community has

anticompetitive effects and that rules should be adopted

requiring the use of separate call letters. A petition for

rulemaking on this subject (RM-1451), filed May 5, 1969, by

Lincoln Broadcasting Co., is pending.

owners (using revenue per thousand audience as an

indication of superiority). However, we note that it

does show significantly higher revenue yields for

multiply owned radio stations, [314] particularly in

their national spot business, which appears to hold true

in all sizes of markets (at pp. 17-20 of the study).

27. NBC, in its reply comments (directed against the

Justice comments), argues that the market shares of the

largest owners in the larger markets are well below the

points which are generally considered danger points by

antitrust standards. The basic data on market shares

which it presents, in spite of the conclusion of NBC, do

show high concentration in some markets. For example,

in Washington, D.C., if the market is considered to be

only the broadcast media, the top three owners have a

64-percent market share; if the market is considered to

be broadcast and arwepeper media, the top two owners

have a 68-percent share.'! In any event, we find that

distributing ownership more broadly will strengthen

competition by removing the potential of competitive

advantage over single station owners. There is no need

to find specific abuses in order to provide a healthier

competitive environment of benefit to smaller licensees.

28. In sum, as we have stated before (18 F.C.C.

288,291-2):

It is our view that the operation of broadcast

Stations by a large group of diversified licensees

will better serve the public interest than the

11 :

NBC obtains a much smaller market share figure by using

the revenue of the broadcast owner, excluding newspaper

revenues, but dividing it by the base of total broadcast and

newspaper advertising revenue in the market (NBC reply

comments, p. 13).

operation of broadcast stations by a small and

limited group of licensees. The vitality of our

system of broadcasting depends in large part on

the introduction into this field of licensees who

are prepared and qualified to serve the varied and

divergent needs of the public for radio service.

Simply stated, the fundamental purpose of this

facet of the multiple ownership rules is to promote

diversification of ownership in order to maximize

diversification of program and service viewpoints as

well as to prevent any undue concentration of

economic power contrary to the public interest.

DISCUSSION OF THE RULES

Stations in the same “‘market”’

29. The notice proposed rules that would limit

common ownership of full-time broadcast facilities in

the same market, but did not define the latter term.

The memorandum opinion and order announced what

“market” would mean for purposes of administering the

interim policy (see par. 8, supra) and stated that the

interim usage would not prejudice ultimate decisions on

the meaning of “market” in any rules which might be

adopted in this proceeding.

30. Although comments were invited on what

“market” should mean if the proposed rules were

adopted, few were received. The most appealing

suggestion was that a “market” should be a standard

metropolitan statistical area (SMSA) as defined by the

1960 or subsequent censuses and that the rules should

apply to stations licensed to any community within the

same SMSA. We have given consideration to use of the

SMSA but reject it because although it might have some

advantages, it has drawbacks as well. For example, not

all communities are located within an SMSA. If an

SMSA “market” were used, it would be necessary to

use a separate standard for communities lying outside

an SMSA. We think it best to have a fixed standard

that can be applied uniformly in all cases.

[315] 31. Paragraphs 9 and 10 set forth the standard

used in the rules adopted today. (They also point out

that the rules are worded in terms of overlap or

encompassment and do not use the term “market.” The

deliberate omission is intended to avoid confusion since

“market” is given various meanings in the broadcast

industry.) The new encompassment standard to be

applied to cases involving commonly owned stations in

different broadcast services is less restrictive than the

standard used for such stations under the interim

policy. For example, under the interim policy if the

l-mv./m. contour of an FM station licensed to serve

one community overlapped the grade B contour of a

TV station proposed to be licensed to serve another

community, the stations were considered to be in the

same market. But under the new rules, in such a case

the 1-mv./m. contour of the FM station must not only

overlap the grade A contour of the TV station (as

contrasted with the grade B contour) but must

encompass the entire community of license of the TV

station. In other words, the stations must be closer

together in order to fall under the proscription against

common ownership.

32. In arriving at a practical criterion for commonly

owned stations in different broadcast services, we

decided that the overlap standard of the interim policy

went further than we thought necessary to achieve the

desired ends of the proposed rules. We are of the view

that the concept of a usable signal for a primary service

from cach of two stations (in different broadcast

services) to the principal community of one of them

should be determinative. However, we still believe that

for stations in the same broadcast service the previously

existing overlap standard should apply and as para-

graphs 8 and 9 indicate, the new rules therefore retain a

proscription against overlap of TV grade B contours,

AM 1-mvy./m. contours, and FM 1-mv./m. contours. ! ?

33. A final point about the criteria of the new rules

should be mentioned. It pertains to major changes.

Under the new rules, as under the previous duopoly

rules, increases in overlap of specified contours between

commonly owned stations in the same broadcast service

are proscribed. Thus, for example, an application to

increase power of one of two commonly owned AM

stations with overlapping l-mv./m. contours would be

prohibited since this would result in increased overlap.

However, for commonly owned stations in different

broadcast services the standard is not one of contour

overlap but, rather, one of community encompass-

ment—a standard aimed at preventing a single owner

from bringing more than one primary service to a

community of license. Hence the method of treating

major changes will be different. The new rules are silent

on the point, but we here announce that if proscribed

encompassment already exists and if after grant of an

application for major change it would still exist, the

rules will not bar the grant.

34. The concept is best illustrated by an example:

Assume that an owner is licensed to serve community A

12 For explanation of the basis of this retained standard, see

“Multiple Ownership” (docket No. 14711), 29 F.R. 7535 (1964).

with an FM station and community B with an AM

station, and that the 2-mv./m. contour [316] of the

latter station just barely encompasses all of community

A. Grant of an application for increase in power of the

AM station would result in the 2-mv./m. contour of the

Station easily encompassing community A and going

quite some distance beyond it. Such a change would

not be barred by the rules since both before and after

the change the situation would still be one in which a

single owner was bringing more than one primary

service to the community (albeit after the change

community A would be receiving a stronger signal). The

principle is not limited to power changes but would

apply to al) major changes, for example, to changes in

transmitter site. In contrast to the foregoing result, if

the stations in community A and B had both been in

the same broadcast service (that is, AM) and had

previously existing proscribed overlap, the power change

would be denied since it would result in increased

overlap.

Characteristics of different “markets”

35. A widely held view of opponents is that the

proposed rules are too sweeping and not tailored to the

specific requirements of particular situations. It is said

that all markets are not alike and that the rules should

treat different markets differently. Some urge that large

markets should be exempted because of the great

number of independently owned mass media serving

them. Others urge exemption for small markets because

viability there often depends on having combined

operations, and point to the fact that the Commission

recognized financial difficulties in smaller markets when

it exempted them from the AM-FM duplication rules.

Still others proposed that if a market has a specified

number of “voices,” it be exempted on the ground that

it presumptively has an adequate amount of diversity so

that the rules are not needed. And some suggest that

weights or points be given for various types of media

and that a single owner be permitted to have only a

specified number of points in a market.!*

36. The Litwin report (note 5, supra) suggests that

across-the-board rules limiting common _ ownership

would be detrimental to the public interest in the

majority of cases. We find weaknesses in the study so

greatly affecting the conclusions reached therein as to

render them of little value in our deliberations.

37. Thus, for example, the study relies largely on

statements of interviewees for obtaining the information

on which most of its conclusions are based. The

technique of relying on statements of interviewees

rather than on more solid factual data is open to

question. For example, it would appear the better

course to ascertain the hours of news broadcast per day

by a station by examining the last renewal application

or the station logs rather than inquiring of media

personnel. Admittedly, some of the _ information

gathered from the interviewees would, by its nature (for

example, opinions about the amount of influence of

various media personnel on media policy), not be

'S air Trails suggests an incentive plan that might encourage

owners to break up local combinations by permitting them to

own a greater number of stations nationally than is permitted

under present rules. This would increase diversity locally at the

expense of increasing concentration of control nationally. We

think it more in the public interest to adopt rules that would

increase local diversity while at the same time not increasing

national concentration to the degree suggested.

available in factual data, and could only be obtained by

Interviews. How-[317] ever, a weakness of any interview

situation is that the interviewee, intentionally or

unintentionally, may not say what is actually true. It

does not appear that any attempt was made to ask

questions designed to provide a crosscheck on some of

the answers given.

38. The study matched markets demographically,

chose markets with close to the same number of media

outlets in each media category, and so on, in an effort

to show how singly owned stations differ from stations

which are commonly owned with other stations in a

single market. If differences between commonly owned

and singly owned stations are to be attributed to the

ownership factor one must be sure that the media

compared differ little or not at all in other important

respects. It would appear that the study fails to meet

this test. For example, it shows the number of media

personnel interviewed in the commonly owned and

singly owned categories in each market, but does not

indicate with what specific media they were associated.

At the request of the staff, Dr. Litwin submitted a

letter which indicated that in the commonly owned

sample (covering six markets used in the study) there

were nine VHF and one UHF TV stations all of which

were network affiliated. In the singly owned sample

there were five TV stations—two VHF affiliates, one

VHF independent, and two UHF independents. The

total profits (before taxes) of the TV stations in the

former group were $12.7 million in the 1968 as

compared to $3.9 million for the latter group in the

same year. Conclusions reached about these stations

could just as well be attributed to their profit position

as to their being commonly or singly owned. One could

argue that even if a station were singly owned, if it

were a VHF station in a large market with a CBS

affiliation it would be in an excellent position to

provide excellent news and public affairs service to the

public, a type of programing which Litwin suggests 1s

more likely to be broadcast by commonly owned

stations. Moreover, some singly owned stations and

some of the stations commonly owned in the same

market were owned by parties who also owned stations

elsewhere in the Nation, but the effect of this factor

was not examined.

39. Another weakness is that although in many

instances statistically significant differences were the

basis for statements of how commonly owned and

singly owned operations differ, often statements were

made that were based on differences that were not

indicated to be statistically significant in the tables

contained in the report.

40. Finally, some assumptions of the study are open

to question. For example, it assumes that singly owned

stations go hand in hand with lack of financial

resources; that a single owner’s personal involvement in

operating his stations is contrary to the public interest;

and that editorial stands in highly controversial areas,

which it finds single owners have more of a tendency to

take, are inflammatory.

41. We agree with those who say that rules should

be reasonably related to the ends sought, and believe

that the rules adopted herein are. They represent a

particularization of our conception of the public

interest (National Broadcasting Co., supra, at 218), and

deal with a recurring problem which we believe is best

dealt with by general rules. Though they are general in

nature, they take into account the precarious positions

of many existing FM stations, the lack of aural [318]

service in small markets with class IV stations, the

needs of some daytime AM stations for nighttime

service that will benefit a community, peculiar problems

of satellite television stations, the policy of fostering

UHF development, and other matters.

Comparability of A.M., F.M. and TV'*

42. Opponents of the proposal aver that the three

services are not comparable and therefore that the rules

are imapt since the different services have different

audiences in kind and size and eliminating common

ownership in the same market does not mean that

individual members of the public will receive more

voices.

43. What opponents appear to be saying is that if,

for example, one owner has three stations in the same

market and each serves the same audience, then if the

stations were sold and became separately owned that

audience would be exposed to three voices instead of

one and diversity of viewpoints would have been

promoted. However, according to their argument, if

each of the stations serves a different audience, and

they say each would, then having three separate owners

instead of one merely means that although each

audience would be exposed to a different voice, it

would still be just one voice, and the listeners would

have no increased diversity.

l4This section deals only with comparability of the services

with regard to their broadcasting of diverse viewpoints. As to

comparability in terms of economic competition, see pars, 25-28

supra.

44. The rules are designed to prevent any possible

undue influence on local public opinion by relatively

few persons or groups. They can do this by either

bringing more voices to the same audience, or by

assuring that no one person or entity transmits its single

voice to each of three audiences. Assuming separate

audiences for each of the three services, a commonly

owned AM-FM-TV combination sends a single voice to

the sum of all three audiences which might well

constitute most of the community. With three separate

owners, no one person or entity could so reach the

entire community. Each would reach a part of it, and

this would act to reduce possible undue influence.

Insofar as there is overlap of audiences of the three

services, separate ownership, of course, would being

more voices to the overlapping audiences. Such overlap

may be substantial.

FM and UHF development

45. Some parties urge that the rules would be

contrary to the policy of fostering UHF development,

since often the local AM licensee might be the only one

willing to undertake to build a UHF station, so that

may be the only way that UHF may develop in many

communities. Moreover, in many communities, we are

told, independent FM operation is not viable. If this is

the case, it is argued, it is difficult to see how the rules

would achieve diversity. Channels would lie fallow that

otherwise might have been used by licensees of other

local stations. Moreover, when AM-FM combinations are

sold, there may often be no buyer for the FM station,

with the result that it would go off the air. This,

opponents contend, would be unfair to AM licensees

who went into FM operations in the same community

as the result of Commission encouragement since it

would deny them the fruits of their risk [319] taking

by depressing property values at the time of sale.

Consequently, it is argued, many might be disinclined

to enter into new areas of communications in the

future, thereby slowing development in new areas, and

this would be contrary to the public interest. It is also

pointed out that the AM-FM_ nonduplication rule

recognized that AM-FM combinations in small markets

are not in a position to program even 50 percent

separately, yet the rules proposed herein would not

only require 100-percent separate programing, but

separate ownership as well.

46. As opposed to the foregoing, supporters of the

proposal hold that the clear effect of combined

ownership of stations in the same market is to reduce

diversity of news and information sources available and

to lessen the degree of competition for advertising: that

separate ownership of AM and FM stations would

require completely separate programing instead of the

amount presently permitted under the non-duplication

rules and that this would give the public a greater

choice of programing; that it is difficult to imagine that

a dual owner would carry conservative editorials on its

AM station and liberal editorials on its FM station—

separate owners give more views; and that common

ownership of AM and FM sstations restricts FM

development.!®

15 Several parties suggest amendment of the AM-FM nondupli-

cation rules in a way that would require more nonduplicated

programing. See “Broadcast Station Assignment Standards”

(docket No. 18651), 19 F.C.C. 2d 472, 488 (1969), where we

said that a document dealing with this matter will be issued in

the near future.

47. We find the arguments of opponents persuasive.

Surely independent UHF stations still need all the

support they can receive. Although AM stations have

shown little inclination in the past to build or acquire

such UHF stations,'® combinations of UHF with AM

stations, or, should the occasion arise, with FM stations

or with AM-FM combinations, will be dealt with on an

ad hoc basis, as indicated in note 7 to the revised

section 73.636.

48. With respect to existing AM-FM combinations in

the same area, we recognize that in most cases the

operations may be economically and/or technically

interdependent. Financial data reported by FM stations

indicate that they are generally losing money.! 7? We are,

therefore, in the rules adopted today, permitting

assignments or transfers of combined AM-FM stations

to a single party where a showing is made that

establishes the interdependence of the stations and the

impracticability of selling and operating them as

separate stations. Although this will not faster our

objective of increasing diversity, it will preclude the

possible demise of many FM stations, which could only

decrease diversity.'®

'©We note only two cases of UHF-radio combinations in the

top 50 markets (Department of Justice comments, app. A).

'7 Operating statements showing revenues, expenses, and

income are reported to the Commission by FM stations which

operate independently of an AM station in the same community.

Reports of combined AM-FM stations do not show income for

the FM separately. In 1968, of the 433 independent FM stations

reporting, only 148 showed a profit. Their average profit, before

Federal income taxes, was $15,308. The average loss for the

other 285 stations was $21,599.

Sin the light of our view, expressed at various times in

recent years, that FM should not be an adjunct or supplement of

[footnote continued]

49. However, although we take the aforementioned

step as to existing AM-FM combiantions, licensees of

FM stations or of full-time AM stations (with the

exception of certain class [V’s) will not be permitted to

[320] obtain a second aural authorization in the same

market. We believe that there is no general shortage of

aural service, and have decided to prevent any further

concentration of ownership of such stations. The

excepted class IV stations are those in markets with a

shortage of local annual service, as explained below. For

reasons also set forth below, daytime-only AM stations

will be permitted to obtain FM licenses.

Exemptions—daytime AM and some class IV AM

stations

50. Our proposal in the notice, as clarified in the

memorandum opinion and order, was that a daytime

AM station could obtain a license for a full-time station

in the same market and conversely, a full-time station

could obtain a license for a daytime AM station.

However, no full-time station could obtain a license for

another full-time station in the market.

51. The rules we adopt provide that a daytimer

may obtain an FM station in the same market. But no

FM station will be permitted to acquire a daytime AM

station. Moreover, and contrary to the proposal,

licensees of class [TV AM stations in communities under

10,000 will be permitted to acquire an FM station.

AM, but that both AM and FM should be integral parts of a

total aural service, it is our intent to study further the entire

questions of combined AM-FM ownership in the same area. This

will be done in docket No, 18651 (note 19, infra) or otherwise.

52. Arguments are made that all class IV stations

should be treated like daytime stations and permitted

to obtain licenses for FM stations in the same market

because class IV stations have very limited nighttime

coverage and therefore resemble daytimers. A similar

argument is made for full-time stations with DA

patterns restricting nighttime coverage. Additionally, it

is argued that daytimers could also be nighttimers if

they were willing to invest in night directional facilities,

and therefore should not be given preference over those

who have made such investments, with respect to the

right to acquire FM facilities.

53. It is said that in establishing the table of

assignments for FM channels (docket No. 14185), the

third and sixth priorities were to provide each

community with at least one FM station, especially

where the community has just a daytime-only or local

class IV station; and to provide a substitute for AM

operations, which, because they are daytimers or suffer

serious interference at night, are marginal from a

technical standpoint. It is said that the Commission

obviously envisioned that, where practicable, daytime-

only and class IV stations would have an FM channel

available to them. We are told that the new rules would

for the first time make a distinction between the two

types of stations.

54. It is also averred that the Commission has

encouraged AM-FM combinations as an alternate means

of providing aural broadcast service if daytimers could

not provide adequate service within the restrictions of

the AM rules, or to overcome service losses caused by

interference resulting from presunrise operation of

daytime-only stations.

55. Against the aforementioned argument for class

IV exemption, Mount Wilson, a single FM station

licensee and a supporter of our proposal, states that

even with reduced nighttime coverage, the competitive

influence of such stations can be far reaching, and that

to exempt class IV’s would impede the development of

FM (see par. 46, supra).

56. Citizens Committee, also a supporter, takes the

position that radio is now primarily a daytime medium

so that it is important that efforts be made to achieve

diversity of programing, especially in small communities

where local issues may be covered only by radio. It

therefore urges that consideration be given to not

exempting daytime AM stations from the rules.

57. It cannot be denied that past encouragement has

been given to AM licensees to engage in joint AM-FM

operations. However, as stated elsewhere (par. 22,

supra), changing conditions require a re-evaluation of

objectives, which may result in rule changes.'? For

example, for a long time 100 percent duplication of

AM-FM programing was permitted. However, that was

changed by the adoption of the AM-FM nonduplication

'9The case of those arguing that the Commission has

encouraged such joint operations may be overstated. For

example, they cite our statement in the report and order which

established new AM assignment standards in 1964, where we

said, in presenting reasons for restricting the construction of new

nighttime AM stations, that “* * * such needs for nighttime aural

service as dO exist may be met far more efficiently by FM

stations, * * *” (“AM Assignment Station Assignment Standards”

docket No. 15084, 2 Pike & Fischer, R.R. 2d 1658, 1672

(1964),) This statement does not necessarily mean that the FM

stations should be operated by AM licensees in the same

community. Similarly, the third and sixth priorities in docket

— 14185, mentioned above, did not necessarily have that

port.

rules. It is noted that at the time that those rules were

adopted, we referred to our previously expressed view

that separate ownership of AM and FM stations in the

same community was a desirable long-range goal that

was not being gone into at that time in view of the fact

that the subject of possible general revisions of the

multiple ownership rules was then under study (Id., at

1678).

58. For public interest reasons previously mentioned,

we have fashioned the rules to give special consideration

to the sale of AM-FM combinations. Additionally, for

reasons mentioned below, class IV AM stations in

communities with less than 10,000 population, and all

daytime AM stations, will be permitted an FM station

in the same community. Beyond this we are not

prepared to go in the matter of dual ownership of AM

and FM stations.

59. We now turn to the exemption of daytime AM

stations. As was proposed, such stations will be

permitted to obtain FM licenses. This is done in the

interest of bringing nighttime service to areas served by

daytimers, thereby adding a voice for nighttime

listeners.2° We think this purpose outweighs the

argument of Citizens Committee that daytime AM

stations should not be exempted.

20Not only will we permit daytimers to use FM to bring

nighttime serve, but in many cases we shall require them to use

FM if they wish to provide such service. In a notice of proposed

rulemaking and notice of inquiry looking toward revision of the

AM station assignment standards (“Broadcast Station Assignment

Standards” docket No. 18651, 19 F.C.C. 2d 472 (1969)), we

have proposed rules (and stated reasons in support thereof) that

would require a daytimer seeking new nighttime AM service to

show that there is available in his community no commercial FM

channel on which he could operate a station (at 475-6).

60. The reasons for permitting daytimers to obtain

FM do not apply in reverse. Therefore, contrary to the

proposal, the rules do not permit an FM station to

obtain a daytime AM license since the FM station is

already giving both day and night service.* ! Similarly,

we do not generally permit full-time AM stations,

whether class IV or stations with DA _ patterns

restricting nighttime coverage, to obtain authorizations

for FM stations in the same area. Such AM stations are

already licensed to serve both day and night. Though

they may have restricted [322] service areas at night,

and though they might, by using FM, bring an

additional voice to areas not now served by them at

night, it would be at the expense of having their voice

over two channels in their present daytime and

nighttime service areas. We are willing to permit a

daytimer to have two daytime channels (AM and FM)

and one nighttime channel (FM) in the interest of

adding a nighttime voice. But we are unwilling to

permit full-time AM stations to have two daytime

channels (AM and FM) serving the community of

license and outlying areas, and two nighttime channels

serving a more restricted area which includes the

community of license,?? in order to add a voice (FM)

to outlying areas.

2IThe new rules prevent an FM licensee from obtaining, in

any manner (new station, assignment, transfer), an authorization

for a daytime station serving the same area. Additional reasons

for restricting authorizations of new daytime stations, whether or

not the applicant is an FM licensee, appear in the notice of

proposed rulemaking and notice of inquiry in docket No. 18651,

note 19, supra.

22 Present rules require a licensee to serve all of its community

of license, day or night.

61. However, with regard to class IV stations in

communities under 10,000 population, a special factor

convinces us that they should be permitted to obtain

FM licenses: Generally there is no other station licensed

to the same community to give nighttime service, so

that the areas lying outside the nighttime service area of

the class IV usually receive no nighttime aural service

from local stations. On the other hand, for communities

over 10,000 population, generally the outlying areas

receive at least one aural service from a local station.

We have previously said that because there is no general

shortage of aural service we would prevent further

concentration of ownership. However, in the case of

outlying areas of communities under 10,000 population,

there appears to be a shortage, and class IV stations will

be permitted to alleviate it by obtaining FM licenses if

they desire them.

62. Finally, on the matter of full-time AM stations

alleging the need for an FM license in order to

compensate for presunrise interference they receive,

such applications for FM licenses will be handled on an

ad hoc basis. A factor that would be considered in such

cases is the relative importance of the alleged loss of

service for a few presunrise hours as against the

importance of achieving diversity of programing on two

channels in the same area for the entire remainder of

the day and night.

Miscellaneous matters

63. Television satellite stations are handled on a

case-by-case basis under the present duopoly rules

because of special problems pertaining to them (see

“Multiple Ownership” (docket No. 14711), 29 F.R.

7535, 7539 (1964)). This practice, for the same

reasons, is carried over into the new rules.

64. Pursuant to our general plan of permitting power

increases for all class [V AM stations, applications for

such increases are exempted from the operation of the

new rules. However, in view of our expressed intent to

discontinue the policy of encouraging class IV power

increases as of September 1970 or later in some cases

(“Broadcast Station Assignment Standards,” 19 F.C.C.

472, 486-7 (1969) ), this exemption will be eliminated

in like manner.

The nondivestiture provision

65. Some parties urge that although the rules are

intended to be prospective and not require divestiture,

it is likely that they would produce results contrary to

the expressed intent to “grandfather” existing licensees

because implicit in the rules is the determination that it

is contrary to the public interest for any licensee,

prospective or existing, to own more than one station

in a market. It is asserted that a flood of competing

applications filed at renewal time by new applicants

with no broadcast interests in the market, but

possessing highly impressive traditional qualifications,

would prevail either at the Commission level or on

review by the courts, and that this would thwart the

intent to grandfather.?>

66. We believe that our policy statement of January

15, 1970, on comparative hearings at renewal time

23 some opponents suggest that, in addition to the foregoing,

the WHDH decision (WHDH, Inc., 16 F.C.C. 2d 1, 17 F.C.C. 2d

856 (1969)) would invite filing of competing applications at

renewal time. Citizens Committee, a supporter of our proposal,

believes that this would not be so because of the uncertain effect

of the decision and the reluctance of competitors to file.

adequately covers this question (35 F.R. 822,

F.C.C. 2d ). Moreover, as to the fears which are

expressed, our experience since we adopted the fixed

overlap duopoly rules, which “grandfathered” existing

licensees, has shown that there has been no great

shower of competing applications filed against renewal

applications for stations the service contours of which

overlap those of commonly owned stations.

67. It is appropriate here to mention briefly the

arguments which opponents to the rules make with

regard to divestiture. Typical is that of Air Trails which

says that because of the relative stability of the tenure

of ownership and the relatively small number of new

applications to be expected in the future as compared

with the past, the restructuring of the industry would

be slow, and except over a very long period of time,

quite minor. (Also see par. 24, supra.) However,

opponents are generally quick to state that they oppose

divestiture since it would not be feasible or equitable,

and would be disruptive and inconstent with the overall

broadcast regulatory system. Supporters of the rule are

of the view that without divestiture the rules would not

be effective. Justice, without using the term, appears to

Suggest divestiture at renewal time. Citizens Committee

and Freddot, Ltd., recommend that divestiture take

place in stages to ease the impact.

68. When the notice was issued we believed that it

was in the public interest to “grandfather” existing

licensees (partly because of the disruptive effect of

divestiture), although requiring them to break up

combinations when selling their stations. Consideration

of the record, however, has given us pause. Being now

of the view that the rules we adopt, even though

providing for no divestiture, are a reasonable start

toward diversity and are in the public interest, but that

divestiture may further serve the public interest, we

should like to explore the matter more fully.

Accordingly, we are today issuing a further notice of

proposed rulemaking looking toward divestiture in order

to develop more information on the subject and to give

interested parties an opportunity to comment on the

matter. For similar reasons, the matter of newspaper

ownership, mentioned by various parties, is also dealt

with in the further notice.

[324] Minority cross-interests

69. ABC, Auburn, and GEBCO assert that the

present duopoly portions of the multiple-ownership

rules contain no mention of minority-ownership in-

terests. In this connection, they direct our attention to

Radio Athens, Inc. v. FCC, 13 U.S. App. D.C. 333, 401

F.2d 398 (1968). In that case, Radio Athens, licensee

of AM station WATH, filed an application to increase

power. A 70-percent stockholder of Radio Athens was,

additionally, an officer and director thereof, and also

owned less than one-third of the stock of the licensee

of a neighboring AM station and was an officer and

director of that licensee. Grant of the application would

have resulted in the type of overlap vf contours

proscribed by the duopoly rules.

70. The decision pointed out that the duopoly rules

state that a broadcast station license will not be granted

to parties directly or indirectly owning, operating, or

controlling one or more stations in the same broadcast

service if the grant of the license will result in any

overlap of specified service contours. The court held

that the rules by themselves did not advise a person

that ownership of less than one-third of the stock of a

close corporation of which he was an officer and

director constituted, as a matter of law, such control as

to make the application patently violative of the

Commission’s rules and subject to being not accepted

for filing by the Commission.

71. The court stated that various constructions

which the Commission had in the past made of the

duopoly rule to make it operative in cases of

cross-interest, whether or not the interest is tantamount

to ownership, operation, or control, did not operate to

give an applicant fair notice that its application was

patently not in accordance with the rules and therefore

subject to being rejected. It said that in circumstances

where such a drastic step as dismissal of an application

without any consideration is involved more clarity of

notice to an applicant was needed and suggested that

this should be given by the adoption of rules. However,

it also said that agencies may rightly expect attention

to be accorded to their interpretative rulings and expect

attention to be accorded to their interpretative rulings

and indicated that in cases not involving outright

dismissal of an application such an expectation would

be justiiied.

72. ABC, Auburn, and GEBCO state that since the

notice did not mention minority cross-interests, they

assume that the present proceeding is not directed at

broadening the duopoly rules to embrace such interests,

and that if the Commission decides to take such a step

they will be given an opportunity to comment pursuant

to provisions of the Administrative Procedure Act. We

agree that the notice did not refer to minority

cross-interests, and the rules we adopt today contain no

new language thereon.** Inasmuch as the new rules are

an extension of the present duopoly rules, we are

announcing that the rulings that we have made in the

past On minority cross-interests in duopoly cases will

be carried over and applied to cases involving such

interest under [325] the new rules.*5 However, of

course, situations under the new rules that are like that

which arose in Radio Athens, in which an application

was dismissed as not acceptable for filing, will be

treated consistently with the holding of that case.

73. The subject of minority cross-interests, involving,

for example, less than complete cross-ownership,

interlocking directorates, partial ownership in one

station and employment by another, and other matters,

is in need of reexamination and we intend to give it

consideration which may lead to actions looking toward

the issuance of interpretative or other regulations.

24Ry a report and order in docket No. 15627 (“Multiple

Ownership of AM, FM, and TV Stations,” 13 F.C.C. 2d 357

(1968)) amendments to the multiple-ownership rules were

adopted. They became effective about 3 weeks after the decision

in Radio Athens. Although not going into the question of

minority cross-ownership interests in detail, new note 2 of the

rules as amended therein states that partial as well as total

ownership interests in corporate broadcast licensees are con-

sidered in administering the duopoly rules.

25 See conditions applied against cross-interests in two

overlapping television stations, WECT-TV, Wilmington, N.C.,

public notice of Jan. 13, 1966, mimeograph No. 78695, Roy H.

Park, who held control of one of two overlapping stations,

WNCT-TV, Greenville, N.C., and also a minority stock interest in

WECT-TV, Wilmington, N.C. (the second overlapping station),

was precluded from holding an office in or participating in the

management of WECT-TV.

THE INTERIM POLICY

74. The notice, as clarified by the memorandum

opinion and order, provided that all applications within

the scope of the proposed rules tendered for filing on

or before April 3, 1968 (the date the notice was

published in the Federal Register) and subsequently

accepted for filing would be processed according to

existing rules and precedents. However, as an interim

policy, applications falling within the scope of the

proposed rules that were tendered for filing after that

date would be accepted for filing if they otherwise

complied with Commission rules or other requirements,

but would not be acted on until the Commission had

determined the action to be taken on the proposed

rules.

75. If applications were mutually exclusive and some

or all of them fell under the provisions of the interim

policy, the applications were not to be designated for

hearing, but were to be held in a pending file without

further action until decisions were reached in this

proceeding. However, to avoid the creation of a

backlog, this aspect of the policy was subsequently

modified (Seaborn Rudolph Hubbard et al., 15 F.C.C.

2d 690 (1968), 16 F.C.C. 2d 312 (1969)) to provide

that such mutually exclusive applications would be

designated for hearing. If in such a hearing an

application not in conflict with the proposed rules were

preferred, a grant would be made in the usual manner.

If the preferred application were one falling within the

scope of the proposed rules, then it and all other

applications remaining in the proceeding would be held

in hearing until resolution of the rulemaking proceed-

ing, with appropriate action being taken in the light of

the disposition of the rulemaking proceeding.

76. On relatively few occasions the Commission, in

dealing with applications that fell within the scope of

the proposed rules and that were not mutually exclusive

with other applications, has for good cause waived the

interim policy and made an unconditional grant; or a

grant subject to the condition that the purchaser of

more than one full-time station in the same market

dispose of the excess stations as soon as possible, or

within a specified period of tine: or a grant subject to

the outcome of this proceeding.

[326] 77. Our unconditional grants and those with

the condition of divestiture will, of course, stand. With

regard to grants subject to the outcome of this

proceeding which involve assignment or transfer of

AM-FM combinations that are in the same market

under the new rules, we shall, if the material on file

contains sufficient information to show that the

stations cannot be separately sold and operated, and if

they would not be in the same market as a commonly

owned TV station, make the grant final. If more

information is needed for a decision on such cases it

will be requested of the applicants. In cases where the

proper showing is not made, the AM-FM facilities must

be separated. Grants involving TV and aural facilities in

the same market will also be required to be separated.

Applications for waiver will be considered. Grants

involving TV satellite stations will be reviewed on an ad

hoc basis.

78. The new rules will be effective as to pending

applications tendered for filing after April 3, 1968,

whether or not in hearing status. Pending applications

may be amended to bring them into compliance with

the new rules. If possible, such amendment should be

made prior to the effective date of the rules.

Applications which are in hearing status may be

amended, subject to the usual rules governing removal

from hearing status. All applications (in hearing or

otherwise) which are not amended to achieve compli-

ance will be dismissed when the new rules become

effective unless good cause is shown for not having so

amended prior to the effective date.

ORDER

79. In view of the foregoing, /t is ordered, That part

73. of the Commission’s rules and regulations /s

amended, effective May 15, 1970, as set forth in the

attached appendix B.

80. Authority for the adoption of the rules herein is

contained in sections 4(i) and (j), and 303 of the

Communications Act of 1934, as amended.

Federal Communications Commission,

Ben F. Waple, Secretary.

APPENDIX A

PARTIES FILING COMMENTS

(*Indicates reply comments also filed)

Air Trails, Inc., et al.

Air Trails, Inc.

Bulletin Co.

Great Trails Broadcasting Corp.

KPAT, Inc.

Radio Voice of Springfield, Inc.

Reams Broadcasting Corp.

RKO General, Inc.

Royal Street Corp.

Roywood Corp.

Time-Life Broadcast, Inc.

WEZE, Inc.

WKY Television System, Inc.

WRIT, Inc.

Alexandria Broadcasting Corp. (Alexandria)

[327] The All-Channel Television Society (ACTS)

American Broadcasting Cos., Inc.* (ABC)

Armstrong Broadcasting Corp. (Armstrong)

Association On Broadcasting Standards, Inc. (ABS)

Atlantic States Industries, Inc.* (Atlantic)

Auburn Broadcasting Corp., et al. (Auburn)

Auburn Broadcasting Corp.

Babcock Cos., Inc.

Channel 10, Inc.

Group One Broadcasting Co.

Group One Broadcasting Co. of Texas

Guaranty Broadcasting Corp.

Island Teleradio Service, Inc.

KAKC of Tulsa, Inc.

KFAB Broadcasting Co.

KMAP, Inc.

May Broadcasting Co.

Plains Television Corp.

Sagre De Cristo Broadcasting Corp.

Summit Radio Corp.

WKNE Corp.

WKRG-TYV, Inc.

Spanish International Broadcasting Co.

Augusta Broadcasting Co. (Augusta)

Basic Communications, Inc., et al. (Basic Communications)

_ Basic Communications, Inc.

Binghamton Press Co., Inc.

Central California Communications Corp.

Daily Telegraph Printing Co.

Daytona Broadcasting, Inc.

Evans Communications System, Inc.

Gannett Florida Corp.

Golden West Broadcasters

Golden West Broadcasters, Inc.

Guy Gannett Broadcasting Services

James Broadcasting Co.

Lake Shore Broadcasting Co., Inc.

Mount Hood Radio & Television Broadcasting Corp.

Multimedia, Inc.

New Hampshire-Vermont Broadcasting Corp.

Newhouse Broadcasting Corp.

Northwestern Publishing Corp.

Palmer Broadcasting Co.

Plough Broadcasting Co., Inc.

Providence Journal Co.

Radio Medford, Inc.

Southern Minnesota Broadcasting Co.

The WHYN Stations Corp.

Truth Publishing Co., Inc.

Truth Radio Corp.

United Television, Inc.

Vermont Radio, Inc.

WCSC, Inc.

WERC, Inc.

WHEC, Inc.

Wichita Great Empire Broadcasting, Inc.

WKJG, Inc.

WOC Broadcasting

WREX-TY, Inc.

WTRF.-TV, Inc.

WUNI, Inc.

H. Mims Boswell (Boswell)

Buckley Broadcasting Corp., of California (Buckley)

[328] Capital Cities Broadcasting Corp.* (Capital

Cities)

Carter Publications, Inc.* (Carter)

Carthage Broadcasting Co. (Carthage)

Marcus Cohn, Law Offices of

Columbia Broadcasting System, Inc.* (CBS)

Community Broadcasters Association, Inc. (CBA)

Community Broadcasting Service and Community Tele-

casting Service (Community Service)

Combelt Broadcasting Corp.* (Cornbelt)

Davis Broadcasting Co.* (Davis)

Doubleday Broadcasting, Inc. (Doubleday)

Duhamel Broadcasting Enterprises (Duhamel)

Eastern Iowa Broadcasting Inc., et al. (Eastern Iowa)

Eastern Iowa Broadcasting, inc.

Southern Broadcasting Corp.

Spartan Radiocasting Co.

Vermont New York Television, Inc.

W.A.V.E., Inc.

WFIE, Inc.

WRFYV, Inc.

WMT-TY, Inc.

Empire Broadcasting Corp. (Empire)

Fayett. Broadcasting Corp. (Fayette)

Flynn Enterprises, Inc. (Flynn)

Freddot Ltd.*

General Electric Broadcasting Co., Inc.* (GEBCO)

Golden Empire Broadcasting Co. (Golden Empire)

Gross Telecasting, Inc. (Gross)

Philip Y. Hahn, Jr. (Hahn)

Hall Communications, Inc. (Hall)

Heart O’Wisconsin Broadcasting, Inc., et al. (Heart

O’Wisconsin)

Heart O’Wisconsin Broadcasters, Inc.

Metropolitan Radio Corp.

WSJM, Inc.

Beaver Dam Broadcasting Co.

Value Radio Corp.

Town and Country Radio, Inc.

The Jet Broadcasting Co., Inc. and WHOT, Inc. (Jet)

Department of Justice (Justice)

KCIL, Inc. et al. (KCIL)

KCIL, Inc.

Dixie Radio, Inc.

John W. Spottswood

Woofum, Inc.

Retherford Broadcasting, Inc.

Roger Williams Broadcasting, Inc.

KFXM Broadcasting Co. (KFXM)

KMMO, Inc. (KMMO)

KMSO.-TV, Inc. (KMSO)

KPRO, Inc. (KPRO)

KTAR Broadcasting Co. and The Tribune Co. (KTAR)

Lafayette Broadcasting, Inc. (Lafayette)

Lotus Theatre Corp., Lotus Broadcasting Corp., and

Lotus Radio Corp. (Lotus

Lunde Corp.* (Lunde)

Maine Radio and Television Co.* (Maine)

Maryland/District of Columbia/Delaware Broadcasters

Association, Inc. (Md./D.C.)

McClatchy Newspapers* (McClatchy)

Meredith Broadcasting Co. (Meredith)

Mid-Illinois Broadcasting Co., et al. (Mid-Illinois)

Mid-Illinois Broadcasting Co.

Talley Broadcasting Co.

North Central Iowa Broadcasting Co.

Midnight Sun Broadcasters, Inc. (Midnight Sun)

[329] Mount Wilson FM Broadcasters, Inc.* (Mount

Wilson)

E. Harold Munn, Jr. (Munn)

Mutual Broadcasting System, Inc. (MBS)

National Association of Broadcasters* (NAB)

National Broadcasting Co., Inc.* (NBC)

Nebraska Broadcasters Association (Nebraska Assoc.)

Northern Television, Inc. (Northern Television)

North Idaho Broadcasting Co. (North Idaho)

The Ohio Association of Broadcasters (Ohio Assoc.)

The Oklahoma Broadcasters Association (Oklahoma

Assoc.)

Pacific & Southern Co., Inc. (Pacific & Southern)

Pappas Electronics, Inc. (Pappas)

Radio Station WPAY, Inc. (WPAY)

Radio Station WPFB (WPFB)

R. B. G. Productions, Inc. (R.B.G.)

Salt Lake City Broadcasting Co., Inc. (Salt Lake)

Screen Gems Broadcasting of Utah Inc. et al. (Screen

Gems of Utah)

Screen Gems Broadcasters of Utah, Inc.

Cleveland Broadcasting, Inc.

Hubbard Broadcasting, Inc.

Ring Radio Co.

Beef Empire Broadcasting Co.

WJAG, Inc.

Dublin Broadcasting Co.

Sitka Broacasting Co., Inc.* (Sitka)

Southern Broadcasting Co. (Southern)

Southwest Kansas Television Co., Inc. (Southwest

Kansas)

Springfield Television Broadcasting Corp. (Springfield)

Stauffer Publications, Inc. (Stauffer)

Storer Broadcasting Co. (Storer)

Television Chicago, a joint venture (Television Chicago)

Triangle Broadcasting Corp. (Triangle Broadcasting)

Triangle Publications, Inc. (Triangle Publications)

Triple-R, Inc. (Triple-R)

VIP Broadcasting Corp. (VIP)

WACO Broadcasting Corp. (WACO)

Westinghouse Broadcasting Co., Inc. (Westinghouse)

WFTZ Broadcasting Co. (WFTZ)

WHIR, Inc. (WHIR)

WHP, Inc. (WHP)

Woodward Broadcasting, Inc. (Woodward)

PARTIES FILING REPLY COMMENTS ONLY

Air Trails, Inc. et al. (Air Trails)!

Air Trails, Inc.

Builetin Co.

Eastern States Broadcasting Corp.

The Evening News Association

KPAT, Inc.

Lee Enterprises, Inc.

Royal Street Corp.

Sis Radio, Inc.

Time-Life Broadcast, Inc.

WDSU-TY, Inc.

WKY Television System, Inc.

WRIT, Inc.

American Newspaper Publishers Association (ANPA)

Badger Broadcasting Co., et al. (Badger)

Badger Broadcasting Co., Inc.

'Note that to some extent the parties jointly filing reply

comments under “Air Trails” are the same as and to some extent

different fom those who filed comments under “Air Trails.”

Binghamton Press Co., Inc.

Bloomington Broadcasting Corp.

Carolina Broadcasting Co.

[330] Cox Broadcasting Corp.

Daily Telegraph Printing Co.

Gannett Florida Corp.

Guy Gannett Broadcasting Services

KSLA-TYV, Inc.

Lewistown Broadcasting Co.

Miami Valley Broadcasting Corp.

Mount Hood Radio & Television Broadcasting Corp.

Multimedia, Inc.

Newark Broadcasting Corp.

Newhouse Broadcasting Corp.

Northwestern Publishing Co.

Providence Journal Co.

Quincy Broadcasting Co.

Quincy Newspapers, Inc.

RadiOhio, Inc.

Rock Island Broadcasting Co.

The Palladium Publishing Co.

The WHYN Stations Corp.

Tribune Publishing Co.

Truth Publishing Co., Inc.

WBNS-TV, Inc.

WCTW, Inc.

WHDL, Inc.

WHEC, Inc.

WHC-TV Corp.

WJAC, Inc.

WKJG, Inc.

Jose Bechara, Jr. (Bechara)

Bloomington Broadcasting Corp. et al. (Bloomington)?

Bloomington Broadcasting Corp.

Carolina Broadcasting Co.

Cosmos Broadcasting Corp.

Cox Broadcasting Corp.

Daily Telegraph Printing Co.

Fetzer Broadcasting Co.

Guy Gannett Broadcasting Services

Maui Publishing Co., Ltd.

McClatchy Newspapers

Miami Valley Broadcasting Corp.

Mount Hood Radio & Television Broadcasting Corp.

Multimedia, Inc.

Newhouse Broadcasting Corp.

Palladium Publishing Co.

Palmer Broadcasting Co.

Plough Broadcasting Co., Inc.

Providence Journal Co.

Quincy Broadcasting Co.

Radio Medford, Inc.

Rock Island Broadcasting Co.

Southern Minnesota Broadcasting Co.

The Dodge City Broadcasting Co., Inc.

The WHYN Stations Corp.

Tribune Publishing Co.

Truth Publishing Co., Inc.

Truth Radio Corp.

WBNS TV, Inc.

WCSC, Inc.

WHC-TV Corp.

WJAC, Inc.

WKJG, Fac.

WOC Broadcasting Co.

WROK, Inc.

[331] Paul F. Braden (Braden)

Buford Broadcasting, Inc. (Buford)

Cape Fear Broadcasting Co., Inc. (Cape Fear)

Capital City Television, Inc. (Capital City TV)

Chicago Federation of Labor and Industrial Union

Council (Chicago Federation)

Federal Broadcasting System, Inc. (Federal)

Frank Baranowski (Baranowski)

Hilliard Co. (Hilliard)

Houston Post Co. (Houston Post)

Illinois Broadcasting Co. (Illinois Broadcasting)

The Mile High Broadcasting Co., Inc. (Mile High)

KTRM, Inc. (KTRM)

KVOC, Inc. (KVOC)

Leon T. Scblic and Lloyd G. Reedstron,

. Joint venture (KYNT)

Lebanon Broadcasting Co. (Lebanon)

Lincoln Broadcasting Co., Inc. (Lincoln)

National Citizens Committee for Broadcasting

(Citizens Committee)

Oil Shale Broadcasting Co. (Oil Shale)

Peoples Broadcasting Co. (People’s)

Post-Newsweek Stations, Capital Area, Inc. et al.

(Post-Newsweek)

Post-Newsweek Stations, Capital Area, Inc.

Post-Newsweek Stations, Florida, Inc.

Southern Broadcasting Corp.

Spartan Radiocasting Co.

Vermont New York Television, Inc.

Vermont New York Broadcasters, Inc.

There is substantial overlap of parties filing these reply W.A.V.E., Inc.

comments and those who filed jointly under Badger Broadcasting WIFE, Inc

Co., et al. supra. ’ :

WFRY, Inc.

WMT, Inc.

Radio-TV Enterprises, Inc. (Radio-TV)

Rome Sentinel Co. (Rome Sentinel)

Savannah Broadcasting Stations (Savannah)

Shenandoah Life Stations (Shenandoah Life)

Springfield Television, Inc. (Springfield Television)

Tillman Broadcasting Co. (Tillman)

Times Herald Printing Co. (Times Herald)

Tropics, Inc. (Tropics)

WBEN, Inc. et al. (WBEN)

WBEN, Inc.

Hubbard Broadcasting, Inc.

Griffin-Leake TV, Inc.

Screen Gems Broadcasting of Louisiana, Inc.

Screen Gems Broadcasting of Utah, Inc.°

WAPA-TV Broadcasting Corp.

Pikes Peak Broadcasting Co.

WJAG, Inc.

Faulkner Radio Inc.

Owensboro Broadcasting Co.

Radio Columbus, Inc.

Tri-State Broadcasting Co., Inc.

Vidalia Broadcasting Co.

KWTX Broadcasting Co.

Dublin Broadcasting Co.

The Corbin Times Tribune, Inc.

Hartville Broadcasting Co., Inc.

Rustcroft Broadcasting of New York, Inc.

News Journal Corp.

WGN Continental Broadcasting Co. (WGN)

3 Filed comments jointly with others, but filed separate reply

comments.

{332} APPENDIX B

1. Section 73.35 of the Commission’s rules and

regulations is amended by revising paragraph (a) and

note 7, and by adding new note 8 to read as follows:

§ 73.35 Multiple ownership.

* * *

(a2) Such party directly or indirectly owns,

operates, or controls: one or more standard

broadcast stations and the grant of such license

will result in any overlap of the predicted or

measured l-mv./m. groundwave contours of the

existing and proposed stations, computed in

accordance with section 73.183 or section 73.186;

or one or more FM broadcast stations and the

grant of such license will result in the predicted or

measured 2-mv./m groundwave contour of the

proposed station, computed in accordance with

section 73.183 or section 73.186, encompassing

the entire community of license of one of the FM

broadcasting stations, or will result in the

predicted 1-mv./m. contour(s) of the FM broadcast

Sstation(s), computed in accordance with section

73.313, encompassing the entire community of

license of the proposed station; or one or more

television broadcast stations and the grant of such

license will result in the predicted or measured

2-mv./m. groundwave contour of the proposed

station, computed in accordance with section

73.183 or section 73.186, encompassing the entire

community of license of one of the television

broadcast station(s), computed in accordance with

section 73.684, encompassing the entire com-

munity of license of the proposed station; or

2. -2

Note 7. (Paragraph (a) of this section will not

be applied so as to require divestiture, by any

license, of existing facilities. Said paragraph will

not apply to applications for increase power for

class IV stations: to applications for assignment of

license or transfer of control filed in accordance

with sections 1.540(b) or 1.541(b) of this chapter,

or to applications for assignment of license or

transfer of control to heirs or legatees by will or

intestacy if no new or increased overlap would be

created between commonly owned, operated, or

controlled standard broadcast stations and if no

new encompassment of communities proscribed in

paragraph (a) of this section as to commonly

owned, operated, or controlled standard broadcast

stations and FM or television broadcast stations

would result. Said paragraph will apply to all

applications for new stations, to all other applica-

tions for assignment or transfer, and to all

applications for major changes in existing stations

except major changes that will result in overlap of

contours of standard broadcast stations with each

other no greater than that already existing. (The

resulting areas of overlap of contours of standard

broadcast stations with each other in such major

change cases may consist partly or entirely or new

terrain. However, if the population in the resulting

overlap areas substantially exceeds that in the

previously existing overlap areas, the Commission

will not grant the application if it finds that to do

so would be against the public interest, conveni-

ence, and necessity.) Commonly owned, operated,

or controlled broadcast stations with overlapping

contours or with community-encompassing con-

tours prohibited by paragraph (a) of this section

may not be assigned or transferred to a single

person, group, or entity, except as provided above

in this note; and except in cases where the stations

are standard and FM broadcast stations, if the

applications contain a satisfactory showing that for

economic or technical reasons the stations cannot

be separately sold and operated, and if no new or

increased overlap between commonly owned,

operated, or controlled standard broadcast stations

would be created and no proscribed encompass-

ment of communities by standard, FM or

television broadcast stations would result (other

than that of the standard and FM stations in

question).

Note 8. Paragraph (a) of this section

will not be applied to cases involving television

stations which are primarily satellite operations.

Such cases will be considered on a case-by-case

basis in order to determine whether common

ownership, operation, or control of the stations in

question would be in the public interest. Whether

or not a particular television broadcast station

which does not present a substantial amount of

locally originated programing is primarily a satellite

operation will be determined on the facts of the

particular case. An [333] authorized and operating

satellite television station the grade A contour of

which completely encompasses the community of

license of a commonly owned, operated, or

controlled standard broadcast station, or the

community of license of which is completely

encompassed by the 2-mv./m. contour of such a

standard broadcast station may subsequently be-

come a nonsatellite station with local studios and

locally originated programing. However, such com-

monly owned, operated, or controlled standard

and nonsatellite television stations may not be

transferred or assigned to a single person, group, or

entity.

2. Section 73.240 of the Commission’s

rules and regulations is amended by revising

subparagraph (1) of paragraph (a), by revising note

7, and by adding new note 8 to read as follows:

§ 73.240 Multiple ownership.

(a) * * *

(1) Such party directly or indirectly owns,

operates, or controls: one or more FM broadcast

stations and the grant of such license will result in

any overlap of the predicted 1-mv./M. contours of

the existing and proposed stations, computed in

accordance with section 73.313; or one or more

full-time standard broadcast stations (except class

IV stations in communities of less than 10,000

population) and the grant of such license will

result in the predicted 1l-mv./m. contour of the

proposed station, computed in accordance with

section 73.313, encompassing the entire commun-

ity of license of one of the full-time standard

broadcast stations, or will result in the predicted

or measured 2-mv./m.-groundwave contour(s) of

the standard broadcast station(s), computed in

accordance with section 73.183 or 73.186, encom-

passing the entire community of license of the

proposed station; or one or more television

broadcast stations and the grant of such license

will result in the predicted 1-mv./m. contour of

the proposed station, computed in accordance with

section 73.313, encompassing the entire commun-

ity of license of one of the television broadcast

station(s), computed in accordance with section

73.684, encompassing the entire community of

license of the proposed station; or

* ¥ .

Note 7. Paragraph (a)(1) of this section will not

be applied so as to require divestiture, by any

licensee, of existing facilities. Said paragraph will

not apply to applications for assignment of license

or transfer of control filed in accordance with

section 1.540(b) or 1.541(b) of this chapter, or to

applications for assignment of license or transfer of

control to heirs or legatees by will or intestacy if

no new or increased overlap would be created

between commonly owned, operated, or controlled

FM broadcast stations and if no new encompass-

ment of communities proscribed in paragraph

(a)(1) of this section as to commonly owned,

operated, or controlled FM broadcast stations and

standard or television broadcast stations would

result. Said paragraph will apply to all applications

for new stations, to all other applications for

assignment or transfer, and to all applications for

major changes in existing stations except major

changes that will result in overlap of contours of

FM broadcast stations with each other no greater

than that already existing. (The resulting areas of

overlap of contours of FM broadcast stations with

each other in such major change cases may consist

partly or entirely of new terrain. However, if the

population in the resulting overlap areas substan-

tially exceeds that in the previously existing

overlap areas, the Commission will not grant the

application if it finds that to do so would be

against the public interest, convenience, or neces-

sity.) Commonly owned, operated, or controlled

broadcast stations with overlapping contours or

with community-encompassing contours prohibited

by paragraph (a)(1) of this section may not be

assigned or transferred to a single person, group, or

entity, except as provided above in this note; and

except in cases where the stations are standard and

FM broadcast stations, if the applications contain a

satisfactory showing that for economic or technical

reasons the stations cannot be separately sold and

operated, and if no new or increased overlap

between commonly owned, operated, or controlled

FM broadcast stations would be created and no

proscribed encompassment of communities by FM,

standard, or television broadcast stations would

result (other than that of the standard and FM

stations in question).

[334] Note 8. Paragraph (a)(1) of this section will

not be applied to cases involving television stations

which are primarily satellite operations. Such cases

will be considered on a case-by-case basis in order

to determine whether common ownership, opera-

tion, or control of the stations in question would

be in the public interest. Whether or not a

particular television broadcast station which does

not present a substantial amount of locally

originated programing is primarily a_ satellite

operation will be determined on the facts of the

particular case. An authorized and operating

satellite television station the grade A contour of

which completely encompasses the community of

license of a commonly owned, operated, or

controlled FM broadcast station, or the commun-

ity of license of which is completely encompassed

by the l-mv./m. contour of such an FM broadcast

station may subsequently become a nonsatellite

station with local studios and locally originated

programing. However, such commonly owned,

operated, or controlled FM and _ nonsatellite

television stations may not be tranferred or

assigned to a single person, group, or entity.

3. Section 73.636 of the Commission’s rules

and regulations is amended by revising subpara-

graph (1) of paragraph (a), by revising note 7, and

by revising note 8 to read as follows:

§ 73.636 Multiple ownership.

(a) * * *

(1) Such party directly or indirectly owns,

operates, or controls: one or more television

broadcast stations and the grant of such license

will result in any overlap of the grade B contours

of the existing and proposed stations, computed in

accordance with section 73.684; or one or more

full-time standard broadcast stations and the grant

of such license will result in the grade A contour

of the proposed station, computed in accordance

with section 73.684, encompassing the entire

community of license of one of the full-time

standard broadcast stations, or will result in the

predicted or measured 2-mv./m.-groundwave con-

tour(s) of the standard broadcast station(s),

computed in accordance with section 73.183 or

73.186, encompassing the entire community of

license of the proposed station; or one or more

FM broadcast stations and the grant of such

license will result in the grade A contour »f the

proposed station, computed in accordance with

section 73.684, encompassing the entire commun-

ity of license of one of the FM broadcast stations,

or will result in the predicted 1-mv./m. contour of

the FM broadcast station(s), computed in accor-

dance with section 73.313, encompassing the

entire community of license of the proposed

station; or

* * *

Note 7. Paragraph (a)(1) of this section will not

be applied so as to require divestiture, by any

licensee, or existing facilities. Said paragraph will

not apply to applications for assignment of license

or transfer of control filed in accordance with

section 1.540(b) or 1.541(b) of this chapter, or to

applications for assignment of license or transfer of

control to heirs or legatees by will or intestacy if

no new or increased overlap would be created

between commonly owned, operated, or controlled

television broadcast stations and if no new

encompassment of communities proscribed in

paragraph (a)(!) of this section as to commonly

owned, operated, or controlled television broadcast

stations and standard or FM broadcast stations

would result. Said paragraph will apply to all

applications for new stations, to all other applica-

tions for assignment or transfer, and to all

applications for major changes that will result in

overlap of contours of television broadcast stations

with each other no greater than that already

existing. (The resulting areas of overlap of

contours of television broadcast stations with each

other in such major change cases may consist

partly or entirely of new terrain. However, if the

population in the resulting overlap areas substan-

tially exceeds that in the previously existing

overlap areas, the Commission will not grant the

application if it finds that to do so would be

against the public interest, convenience, and

necessity.) Said paragraph will not apply to major

changes in UHF television broadcast stations

authorized as of September 30, 1964, which will

result in grade B overlap with another television

broadcast station that was commonly owned,

operated, or controlled as of September 30, 1964;

or to any application concerning a UHF television

broadcast station which would result in the grade

A contour of the UHF station encompassing the

entire community of license of a commonly

owned, operated, or controlled standard or FM

broadcast station or which would result in the

entire [335] community of license of such UHF

station being encompassed by the 2-mv./m. or

l-mv/m. contours of such standard or FM

broadcast stations, respectively. Such UHF overlap

or community encompassment cases will be

handled on a _ case-by-case basis in order to

determine whether common ownership, operation,

or control of the stations in question would be in

the public interest. Commonly owned, operated, or

controlled broadcast stations with - overlapping

contours or with community-encompassing con-

tours prohibited by paragraph (a)(1) of this section

may not be assigned or transferred to a single

person, group, or entity, except as provided in this

note.

Note 8. Paragraph (a)(1) of this section will not

be applied to cases involving television stations

which are primarily satellite operations. Such cases

will be considered on a case-by-case basis in order

to determine whether common ownership, opera-

tion, or control of the stations in question would

be in the public interest. Whether or not a

particular television broadcast station which does

not present a substantial amount of locally

originated programing is primarily a satellite

operation will be determined on the facts of the

particular case. An authorized and operating

satellite television station the grade B contour of

which overlaps that of a commonly owned

operated, or controlled nonsatellite parent tele-

vision station may subsequently become a non-

satellite station with local studios and locally

originated programing. However, such commonly

owned, operated, or controlled nonsatellite stations

with grade B overlap may not be transferred or

assigned to a single person, group, or entity.

CONCURRING AND DISSENTING STATEMENT

OF CHAIRMAN DEAN BURCH

Since | both concur and dissent, a brief statement of

my views is called for. The basic issue in this

proceeding—diversifying sources of programing—is a

most important one. I would not, however, give priority

to breakup of aural-visual services.

As an initial matter, I would note again my strongly

held view that providing the regulatory climate which

will assure implementation of program origination by

CATV systems (including channels for common carrier

usage), over-the-air pay-TV, use of satellites for new

broadcast and cable networks, and a really properly

financed educational service, should be assigned top

priority, because that is by far the best and most

effective way of obtaining maximum diversity of

programing. However, putting that aside and turning to

this proceeding, I submit that it is flawed.

The Commission has been considering solely the

question of future acquisitions, by new application or

purchase, of TV-AM-FM combinations in the same

market. Where there are only a few aural services, this

may be a significant issue (although often in areas of

sparse population, only the multiple owner will come

forward to provide UHF or FM service). But in the

great majority of cases, it is not a pressing issue. The

reason is obvious: In the Washington metropolitan area

there are 37 aural services; in New York, 59; in

Chicago, 61 and so on. There is a plethora of aural

services in all significant markets. Thus, while separating

TV from AM or FM might make a contribution in a

few cases, it is clearly far from the heart of the

problem. The plain fact is that the Commission has

labored for over 2 years, received reams of comments,

heard extensive argument, only to bring forth a rule

which applies to areas of ownership least needing

attention, if at all.

Clearly, the media cross-ownership matter warranting

the most attention is that of VHF-TV and the daily

newspaper. There are only a few daily newspapers in

each large city and their numbers are [336] declining.

There are only a few powerful VHF stations in these

cities, and their numbers cannot be increased. Equally

important, the evidence shows that the very large

majority of people get their news information from

these two limited sources. Here then is the guts of the

matter. As far as I am concerned, if there is any threat

of undue concentration, and I have of course reached

no final conclusion on this score, it does not lie in cross

ownership of AM-FM-TV.

As I said, I obviously have not made up my mind on

local cross-ownership of VHF-TV and the daily

newspaper. Let’s face up to the fact that if we are

going to inquire into concentration, we should have

started at the most obvious point.

I have heard my colleague, Commissioner Robert E.

Lee, set forth views concerning the stability of the

newspaper owner—that such an owner does not

“traffick” and does a better job of serving as an outlet

for local expression. These factors and many others

have to be explored in the proceeding, and, as |

stressed, I remain openminded on the issue. My point

here is simply that that is the issue.

The majority do not, I think, dispute the greater

importance of the issue. As I understand it, their

position comes down to this: “Perhaps we did omit the

most important aspect from the rulemaking; however,

we must act now as we can, and then consider other

aspects in the further proceeding” (again, I note, with

the issue of the aural-TV cross-ownership having equal

footing with the much more important issue of

TV-newspaper).

I recognize that this position is not without some

substance. It sounds good in theory, but pragmatically

it fails. The action is a prime example of bureaucratic

tinkering to no effect. The capacity of our agency to

take action on complex, difficult, much controverted

matters should not be exhausted by continual actions

which chop away at the system little by little rather

than going straight to the heart of the matter—to find if

there is a problem and, if so, to cure it.

I join in that portion of the action which looks

belatedly to consideration of the heart of this problem,

but I would dissent to going forward with any

across-the-board rule prohibiting the acquisition, either

by new application or assignment of aural and visual

services in the same market, or any proposal looking

toward divestiture of aural-visual services.

DISSENTING STATEMENT OF COMMISSIONER

ROBERT WELLS

The Commission has today taken drastic action and

has proposed more. It has done so with little

justification, and with insufficient investigation and

understanding of the consequences of its action. Some

of the consequences are speculative, others will depend

upon the flexibility of the Commission in granting

waivers where necessary; however, I have no doubt but

that the rule adopted today and the one proposed will

disserve the public interest.

I have read carefully the portion of the report and

order entitled “Need for the Rules,” and the proposed

rulemaking. I cannot find sufficient reason in either

document for the adoption and proposal of rules which

change the structure of the industry. The Commission

has [337] not only permitted the structure until today,

but has actively encouraged it in many cases. Every

multiple owner obtained his licenses from the Commis-

sion—often after comparative hearings. Each applicant’s

other broadcast interests and the structure of the

market that he proposed to serve were known at the

time he was granted his license.

The majority does not cite abuses of power of

multiple owners, or contend that their presence has

restricted entry into broadcasting or has adversely

affected competition. It states only that the market will

be more competitive and that potential competitive

benefits need not be predictable. The Commission

reverses long-standing policy by positing as the goal of

its regulation the assurance that a diversity of “voices”

exists. It then asks “what is ample diversity”’ and with

very little analysis, concludes that it is to be maximum

diversity. I can find no other justifications for the

action taken today.

One would expect such drastic changes in policy to

be buttressed by a compelling showing of public benefit,

but the Commission shows no abuse and only

speculates as to future benefit. I realize that we have

considerable latitude in determining public interest and

regulating accordingly; but today we chart a new course

in broadcasting with no showing of necessity for change

and little appreciation of, or attention to, possible

consequences of our action on broadcast service to the

public.

Many comments filed by broadcasters stated that

multiple ownership permitted more quality news and

public affairs programing than would be economically

feasible on a single outlet because of the ability to

attract better talent which can be used on each facility.

The broadcasters predicted, with apparent justification,

that the quality of news and public affairs programing

would suffer if the facilities were separately owned. The

Commission responds that present multiple owners

would have stations in other markets which would

permit the same financial strength and, therefore, the

same quality programing. This is unresponsive. It is the

fact that each facility benefits from the larger news and

public affairs staff that permits superior quality. A

30-man news staff in a Chicago television station would

contribute little to a commonly owned FM station in

Portland.

The majority states that there is no evidence that

multiple owners provide better service than single

outlets. The question of whether present service would

deteriorate if the facilities were operated separately,

particularly if one or more should be a marginal

operation, is ignored. If an FM station now benefiting

from an active local news staff of a jointly owned

television station joins the ranks of those whose news

consists of reading from a wire service and local press

releases, we have hardly made a meaningful contribu-

tion. I am certain that the Commission does not expect

this result, but it is unrealistic to think that it may not

occur. The majority states that 60 different licensees

are more desirable than 50. But if the result of having

60 licensees is a deterioration in the service of 20

outlets, we have hardly accomplished our goal.

Potential abuse may be greater with multiple owners

simply because they have additional outlets, but we

have an ample arsenal of regulatory powers to deal with

abuses as they arise. We hesitate to use these [338]

powers to fashion specific remedies for specific abuses,

however, choosing instead to adopt a blanket rule. I

had assumed that we have been given considerable

discretion in regulating the industry so that we could

meet such abuses on a case-by-case basis.

Many other ramifications of today’s rules cannot be

predicted. I believe, however, that they will be

substantial, and may affect the quality of service in

many ways. The economic impact of the rules and the

proposed rules is difficult to assess. I do not know what

will result. Clearly the majority does not. Surely

upgrading the facilities that may have to be sold will

cease. The psychological impact on the industry will

doubtless be substantial because these far-reaching rules

have been adopted and proposed with little apparent

justification, and because of the dramatic reversal of

policy after years of encouragement to expand into new

services. Broadcasters may be understandably chary of

the Commission’s encouragement to enter UHF know-

ing that their ownership may be secure only until they

are successful. The impact on broadcast staffs, many of

whom participate to some extent in station ownership

either directly or through employee trusts, is another

imponderable. Surely the proposed divestiture rules will

create some uncertainty, and may adversely affect the

ability of stations to attract and keep personnel until

the issue has been settled.

I resist the temptation to prolong this dissent with

repetition of the many arguments and_ statistics

presented in the comments. I trust that the Commission

100

will consider carefully its authority to adopt the

s relating to divestiture, particularly with

proposed rule

consequences of

respect to newspapers, as well as the

doing so.

101

[22 F.C.C.2d 339] F.C.C. 70-311

BEFORE THE

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

In the Matter of )

Amendment of Sections 73.35, 73.240, and )

73.636 of the Commission’s Rules ) Docket

Relating to Multiple Ownership ) No.

of Standard, FM and Television ) 18110

Broadcast Stations )

Further Notice of Proposed Rulemaking

(Adopted March 25, 1970)

By the Commission: Chairman Burch concurring in part

and dissenting in part and issuing a statement:

Commissioner Robert E. Lee concurring and issuing a

statement: Commissioner Wells dissenting and issuing

statement.

Notice is hereby given of further proposed rulemak-

ing in the above-captioned matter.

BACKGROUND INFORMATION

2. Until now, the so-called duopoly rules, which

form a part of the Commission’s multiple-ownership

rules, have prohibited ownership, operation, or control

of stations in the same broadcast service which have

overlapping service contours (47 C.F.R. secs. 73.35(a),

73.240(a)(1), 73.636(a)(1) (1969)). The twofold pur-

pose of these rules is to promote competition and to

102

‘crease the diversification of program and _ service

viewpoints.

3. In a first report and order adopted today in the

instant proceeding ( F.R. ¥ the duopoly

rules were amended by extending the proscription to

cut across the three broadcast services. Under the new

rules, common ownership, operation, or control of any

broadcast station (AM, FM, or TV), and any other

broadcast station (AM, FM, or TV), in the same market

is prohibited. The rules apply only to those who seck

to obtain new authorizations. They do not require

divestiture, by any licensee, of existing facilities.’

4. As was mentioned in the first report and order

(par. 68), when we commenced this proceeding we

believed it was in the public interest not to require

existing licensees to divest themselves of broadcast

properties to achieve compliance with the rules, and our

proposal reflected this view. The position was based

partly on the disruptive effects that divestiture might

have. Moreover, our proposal pertained only to [340]

broadcast facilities and did not cover common owner-

ship of newspapers and broadcast facilities serving the

same area.

5. The comments of the Department of Justice,

noting that our proposed rules did little to lessen

existing concentration of communications media in

many major cities, suggested that consideration be given

lsome exceptions to the rules include the following: (1) The

same of +" IV AM station in a small community may

obtain a license for an FM station serving the same area; (2) the

licensee of a daytime-only AM station may obtain a license for

an FM station; and (3) the licensee of any AM station and a

commonly owned FM station serving the same area may, upon a

proper showing, sell both stations to a single party.

103

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