38. In the KOB/WABC hearing, the loss of service from WABC occasioned by its directionalization, with the attendant gains in service provided by KOB, was found to be in the public interest in the light of the fact that other stations provided service to all of the areas lost to WABC. This finding would no longer be valid if the existing service were substantially disrupted by the directionalization of WNBC and WCBS. The avoidance of the adverse cumulative effects of separate actions, each of which might be found in the public interest, was one of the primary considerations which led to the Commission decision, in the clear channel hearing, not to require directionalization of the I-A stations to whose channels second unlimited time stations were assigned.

39. This points up the fundamental defect in the suggestion by Hubbard that the rules be amended to provide for the determination of the usage of each broken-down I-A channel (either dual class I/class I or class I/class II) by individual ad hoc proceedings. This would, if implemented, negate the whole concept of a planned and coordinated evaluation of I-A channels. For instance, a 307 (b) determination on an individual basis would require, on each channel, the balancing of population and area gains achieved by operation of the proposed duplicating station as a class I station against corresponding losses sustained as a result of directionalizing the I-A station on that channel. The seriousness of this loss would be assessed in the light of the number of services provided by other stations to the loss area. However, the number of such services will inevitably be affected by decisions made in ad hoc proceedings on the other 10 I-A channels subject to duplication. This is particularly true of secondary services available, but it is also true as to primary (groundwave) service where "other services" available include other I-A services, for example, as among the three New York City and four Chicago I-A channels, and others on which the I-A stations are fairly close to each other, such as New York City-Philadelphia and Chicago-St. Louis. Similarly, the full value of the service provided by a duplicating western station as a class I station can only be determined if other services to the Western States are known. But what other services are or will be available will depend on decisions in other ad hoc proceedings. Because of this interdependence of one proceeding on the others, a joint hearing of applications on all channels in a consolidated proceeding would almost certainly become necessary. Such a hearing, in effect, would constitute. a wasteful duplication of effort and a replowing of ground intensively tilled in the clear channel hearing. We therefore, must reject Hubbard's suggestion.

40. There is also to be considered the impact this course of action would have on radio network service. We stated at various times in our consideration of the "KOB problem" the view that provision for equal network facilities, and competitve equality between networks in their service potential, did not equal in importance the service benefits which would be gained from WABC directionalization. However, it is obvious from the court of appeals 1965 decision that in the view of that court the provision of equal facilities for the "flagship" stations of the three networks is a matter of high importance, not to

be cast aside without very strong countervailing reasons. Implicit in this pronouncement, we believe, even though not expressly stated, is the view that radio network service itself is a matter of importance. We ourselves have recently expressed the same view, in considering ABC's request for a ruling and partial waiver in connection with its adoption of a "four network" operation (three AM and one FM networks).13 If ABC network service is of high importance, there is no reason to believe that the network service of CBS and NBC is less so, and therefore any course of action which would result in loss of all three of these national services to substantial areas and populations is not to be undertaken lightly.14 This is true even though CBS and NBC, particularly the former, have both more numerous owned I-A facilities than ABC, and I-A facilities located closer to the areas around New York which would lose service (at Philadelphia and Cleveland, respectively). The decision reached herein-not to pursue a course looking toward directionalization of WCBS and WNBC as well as WABC is made essentially for reasons concerning the rendition of radio service as such and avoiding long delays, continuing uncertainties and possible disruption of service. But consideration relating to the provision of desirable network service are an added reason why such a course would not be in the public interest. In this respect, as well as with respect to the provision of radio service, we do not believe that the public interest would be served by reducing several I-A facilities, or at least the two New York City stations, to what is essentially directional I-B status, simply to justify a similar result previously reached as to WABC-adopting a "lowest common denominator" approach to equal treatment-even though the result would be some service benefits in New Mexico and elsewhere in the West.

41. For the above reasons, we do not believe that the basic findings in the clear channel hearing as to the method of use of the duplicated I-A channels should be disturbed, either generally or with respect to the two other New York City I-A stations. Rather, for these and other reasons, we are of the opinion that the proper and logical step at this juncture is to propose amendment of section 73.25 (b) of the rules to include 770 kc./s. as one of the channels which will accommodate a class I and an unlimited time class II station, in this instance in the State of New Mexico, in other words, essentially to retain existing operations in the status quo.

NEED FOR SERVICE IN THE SOUTHWEST; COMPLIANCE WITH THE

COURT'S MANDATE

42. We are persuaded that this action, simply regularizing the status quo, can appropriately be taken despite the conclusion in the separate KOB/WABC hearing that the provision of a class I facility for New Mexico, even at the expense of a substantial loss of service from WABC, was in the public interest. The court of appeals stated that the Commission should, early in its further consideration of this matter, make

1 See American Broadcasting Companies, Inc., F.C.C. 67-1390, 11 F.C.C. 2d 163, 12 R.R. 2d 72 (Dec. 1967), pars. 3-4.

14 This is particularly true in light of the tendency in recent years of many radio stations (other than those network-owned) to operate without presenting any substantial amount of network programing.

a new assessment of the public interest needs of the Southwest, in light of new and perhaps changed conditions; if it is concluded that a class II station (as KOB presently operates) would meet these needs, the problem is resolved. As we have mentioned above, a cursory review shows that grants of new facilities on other channels since 1958 have afforded service to only a few thousand of the population which KOB would serve as a class I but not as a class II station, and therefore, as far as AM service is concerned, the needs in the area have not substantially lessened since 1958. We assume for present purposes that this is true and would be substantiated by a more intensive exploration.

43. This is not, however, a need that must be satisfied at whatever cost. Within the four corners of the KOB/WABC hearing the need was found to be sufficiently great to justify its satisfaction at the expense of a substantial curtailment of the existing service of WABC. However, because of the court's remand, the decision in this matter cannot now rest within the confines of the ad hoc proceeding, but must be sought in relationship to the clear channel hearing. In this larger context, the KOB case, as an allocation problem, loses its uniqueness. In every case where a second unlimited time station was assigned to a I-A channel in the clear channel proceeding, the directionalization of the I-A station would have resulted in the new station providing service over a much greater area than would otherwise be the case. A channel by channel comparison of the gains in service achieved by each new station against the losses in service from the I-A station under these conditions would have led, on at least some of the channels, to an indicated result similar to that reached in the KOB/WABC case. The Commission fully realized this, and its 1958 further notice of proposed rulemaking in Docket 6741 (par. 10, above) proposed dual class I operation on five of the I-A channels. Upon further consideration, however, it was determined that the service gains achieved by operating the duplicating stations on a class I basis were not sufficient to justify the cumulative disruption of existing skywave and groundwave service from the I-A stations which would result from their directionalization. Accordingly, the clear channel decision provided only for class II operation by the duplicating stations.

44. As mentioned, the course which Hubbard urges, and which the court of appeals appeared to regard as an appropriate approach, would involve a very substantial loss and disruption of existing service, a restructuring at least in substantial part of the Clear Channel decision and a result at variance that decision and the principles underlying it. We also point out that-aside from the very substantial question as to whether any such result would be in the public interestthere is the matter of the extensive delay, for an extended period, which would be involved before such a reallocation could be effectuated. There is nothing in our experience with the "KOB case" or other AM matters (e.g., the matter of new class II-A assignments) which indicates that class I status for KOB, on a basis consistent with the court's decision, could be attained in less than 5 years, and the time involved might well be much greater. It is not to be supposed that NBC or CBS, to name only two of the other I-A licensees potentially involved, would be any more acquiescent to directionalization than ABC has been. Dur

ing this extended period there would be continuing uncertainty as to what the ultimate effect on other assignments might be, for example the fate of the new class II-A assignment on 880 kc./s. in Nebraska. This is certainly not to be desired.15 We do not now believe it appropriate to embark on a course involving these burdens, all in pursuit of something which is contrary to what we have already decided is the best use of the clear channels and which, ultimately, we might well decide could not be justified in the public interest.

45. Hubbard, of course, has here and previously urged its "equities" in this matter that, since the Commission had once accorded class I status to KOB, it is obligated to provide KOB with an operating assignment consistent with that status. The Commission has heeded these urgings, not as such but because considerations of improving radio service in the Southwest indicated the same course of action, and has made every reasonable effort to do just this. At this juncture, however, we are faced with a situation in which the approaches toward achieving this end lead inevitably to a restructuring at least in part, of the clear channel decision, involving both loss of existing service and further expense, delay and uncertainty. This is a price which is not worth the benefit. The assignment principles established in the clear channel decision were adopted only after a most intensive and comprehensive examination of various alternative plans for usage of the clear channels. That these principles should be compromised solely for the purpose of making possible the implementation of an allocations decision which is inconsistent with them, is, in our view, clearly contrary to the public interest.16

46. In any event, neither KOB nor the public interest will be illserved by its permanent assignment to the channel 770 kc./s. with a II-A classification. Operating with a power of 50 kilowatts, day and night, on a basis which will protect WABC's present operation, KOB can serve extensive areas and populations. The conditions for groundwave propagation on 770 kc./s. are considerably more favorable than on 1180 kc./s., the channel on which KOB operated unduplicated as a class I station for a brief period, and the primary service KOB would provide on 770 kc./s. as a class II-A station approaches that which it delivered on 1180 kc./s. in its class I status. While KOB will have no secondary service as a II-A station, this lack should not appreciably affect the viability of its operation.

47. We do not believe that our proposed action is inconsistent with the conditions of the court's remand; these cases were remanded to the

15 This II-A assignment is now occupied by station KRVN, Lexington, Nebr., not yet so operating. If 880 kc,/s. were broken down on a dual class I basis, this station might become a class I but it is not clear that that would be the optimum use of the western class I assignment, since it would mean two class I stations in Nebraska and three in the 500 miles between Omaha and Denver. If 880 kc./s. were used elsewhere, another frequency would have to be found for the Nebraska II-A assignment, which might be difficult since 770 kc./s. would be used by KOB and thus not available. This illustrates the complexities involved. In 1967 we expressed the importance of quick activation of this assignment, to bring a first nighttime primary service to some 159,000 persons, greater than the population which KOB would similarly serve as a class I but not as a class II station. Nebraska Rural Radio Association, Inc., 10 F.C.C. 2d 345, 11 R.R. 2d 436 (1967).

On the subject of KOB's equities, the court has said: "The circumstance that KOB had, prior to 1941, a class I-A status is hardly persuasive when it has had only a class II status since that time, and when WABC has always had that status and has up to the 1958 decision been licensed to operate as a class I-A station on an exclusive clear channel basis on 770 kc., the channel in question." (345 F. 2d 959, 4 R.R. 2d 2012.)

17 F.C.C. 2d

Commission "for further proceedings not inconsistent with this opinion." The higher court found error in the "self-apparent" inequity in the treatment of WABC, which it found unsupported by adequate public interest reasons in the decisions in docket 6584 and docket 6741. It is evident that any further order disposing of the KOB/ WABC problem must rectify the error. The procedure which we propose will lead to that result. We do not believe that the court meant to, even if it properly could, require that the Commission continue to seek the same basic solution for the problem. Indeed, we were invited to "make a fresh assessment of the needs of the Albuquerque area in respect of KOB in the light of the increased service then being made available, and other changed conditions." (Italics supplied.) In a sense one change in conditions resulted from the action by the court itself the delineation in its 1965 remand of the nature of its requirement for equitable treatment of WABC. This requirement precludes the solution of the KOB/WABC problem in a limited adjudicatory proceeding, and necessitates its consideration in relationship to the pattern of channel usage set by the decision in the clear channel hearing. As a result of this consideration, we have arrived at a solution at variance with that adopted in the 1958 decision. While the reasons we do not now propose class I facilities for KOB are not those which the court suggested we explore, we believe they are legally sufficient to support the proposed action, and in our tentative view the decision we reach based thereon-maintenance of the status quo with KOB as a class II station on 770 kc./s.-is what will best serve the overall public interest.17

48. We also emphasize that the decision tentatively reached herein is not adopted because it serves "administrative convenience" or is "an easy way out," which Hubbard claims to be the motivation of the Broadcast Bureau in its suggestion. The Commission and its staff have many problems and duties and these have certainly not decreased in recent years; but considering directionalization on one or two other I-A channels in addition to 770 kc./s. would not be an insuperable burden. We are persuaded, rather, by the overall burden to the various parties who would be actually or potentially involvedin terms of delay and uncertainty-and thus to the public and the cause of prompt improvement in radio service in other areas. all in the interest of reaching a result which, if not maintenance of the status quo, would be at most a gain in service in the Southwest (to a population which is not extremely large) at the expense of disruption of existing service in the East. The potential gain is simply not worth the cost.

49. We have reached the foregoing conclusions with respect to the approach suggested by the court of appeals and urged by Hubbardthat KOB might be accorded class I status on 770 kc./s. and similar arrangements reached on 660 and 880 kc./s. Another conceivable

17 In mentioning the court's mandate as one of the controlling factors in our decision herein, we do not say that we would have reached a different result in the absence of any court pronouncement. Had consideration of 770 kc./s. preceded pari passu with that of the other I-A channels in docket 6741-which we initially attempted in 1946 to do the result might well have been to reach the same decision as to duplication by a class II-A instead of a class I station.