or denied permission to occupy public rights of way to any person or entity is relevant and material, and perhaps could even be of decisional significance, under certain circumstances. These considerations are clearly relevant to whether a bona fide need exists for common carrier facilities, and whether construction of such facilities would be wasteful or constitute wasteful duplication of common carrier facilities. Such issues are at the heart of a section 214 proceeding. Further, any improper bypassing of local franchising authorities having jurisdiction in the matter could defeat the objectives of municipal regulation. This in turn could deprive the municipal authorities of the opportunity to determine the nature and extent of services which they believe to be in the best interest of the community. 10. In the case before us, however, there has been no showing with respect to these issues sufficient to compel denial or deferral of the subject application. Petitioners have argued that grant of this application will oust the local authorities of their jurisdiction. While the relevant application and pleadings in this proceeding were served on the towns in which Cape Cod Cablevision is operating, none of them has objected to grant of the application. When no objection has been received from the local governments, where no attempts have been made to prevent the operation of another CATV system to be served by channel facilities leased from the telephone company and where the local authorities do not object to the existence of such a system, we believe it is appropriate and reasonable to conclude that no objectionable bypassing of local authorities has taken place. Accordingly, grant of the subject application should not be further delayed on these grounds. Since the franchising authorities have not objected to the requested certification here before us, we are not confronted with a case where grant of the telephone company's application for leased facilities to an unfranchised CATV customer would be in derogation of the wishes of local municipal authorities. Thus, it is unnecessary to determine here what weight we would accord, as a matter of comity, if not law, to views of municipal authorities opposed to grant of such an application. 11. On the basis of the application, pleadings filed, and other matters of record before us, we find no substantial and material questions of fact which would warrant a hearing. In view of our action granting the basic application herein, applicant's request for an emergency service authorization has become moot. We find that the present and future public convenience and necessity requires, and will require, the construction and operation for which certification is requested in the subject application. Our action herein is not intended in any way to foreclose any rights of the local governments involved to franchise CATV systems, or to enforce or enact such local regulations as may be appropriate concerning the entrance or operation of CATV systems in areas that we have not preempted. 12. Finally, our records do not indicate that Cape Cod Cablevision, the channel service customer herein, has ever filed the notification See, for example, General Telephone Company of California et al., 13 F.C.C. 2d 448, 467 (1968). required by section 74.1105 of our rules. Cape Cod Cablevision is not a grandfathered system and such a notification is required. Because the customer's failure to meet this threshold requirement could affect the channel service here authorized, and to insure the integrity of our rules, the authorization granted herein will be specifically conditioned upon Cape Cod Cablevision's compliance with the said notification requirements. ORDER AND CERTIFICATE 13. It appearing, That the application of New England Telephone & Telegraph Co., file No. P-C-7108, is in compliance with the requirements of part 63 of the Commission's rules, the pertinent parts of our partially stayed decision in docket No. 17333, and our published interim procedures concerning such applications; 14. It further appearing, That public notice of the acceptance for filing of said application has been given, and that a copy of said application was served on the Secretary of Defense, the Governor of Massachusetts, all existing and proposed CATV operators or applicants for a CATV franchise in the communities of the existing system and proposed construction, the community franchising authorities, and upon the National Cable Television Association; and 15. It further appearing, That no substantial and material questions of fact warranting a hearing have been raised by petitions directed against the said application filed by Norton Industries, Inc., and by Mr. Robert A. Gilmore; 16. It is hereby certified. That the construction and operation of the CATV channel distribution facilities as set forth in the said application is in the public interest, convenience, and necessity. 17. Accordingly, It is ordered, That authority is, hereby, granted for the construction and operation of the facilities specifically described in said application; 18. It is further ordered, That no service other than the CATV channel service described in the said application shall be furnished over the facilities authorized herein without prior authorization by the Commission; 19. It is further ordered, That this authorization is issued without prejudice to any Commission action which may hereafter be indicated as the result of the proceedings in dockets Nos. 16928, 16943, 17098, and 17441; 20. It is further ordered. That this authorization is not to be construed to relieve applicant's customer, Cape Cod Cablevision Corp., from compliance with the requirements of part 74, subpart K, of the Commission's rules, including section 74.1105 thereof, or any rules that may be promulgated by the Commission in docket No. 18397, or any Commission order that may be issued pursuant to part 74, subpart K, of the Commission's rules and regulations; 21. It is further ordered, That this authorization is conditioned upon Cape Cod Cablevision's compliance with the notification requirements of section 74.1105 of the Commission's rules and regulations; 22. It is further ordered, That the secretary of the Commission shall send a copy of this memorandum opinion, order and certificate to Cape Cod Cablevision Corp.; 23. It is further ordered, That the petitions to deny and for hearing filed by Norton Industries, Inc., and by Mr. Robert A. Gilmore directed against the said application Are denied; and 24. It is further ordered, That applicant's request for an emergency service authorization Is dismissed. FEDERAL COMMUNICATIONS COMMISSION, 17 F.C.C. 2d FLORIDA HEARTLAND TELEVISION, INC., OR- Docket No. 17341 LANDO, FLA. COMINT CORP., ORLANDO, FLA. TV 9, INC., ORLANDO, FLA. File No. BPCT-3737 For Construction Permit for New Tele- File No. BPCT-3740 vision Broadcast Station MEMORANDUM OPINION AND ORDER (Adopted March 28, 1969) BY THE REVIEW BOARD: BOARD MEMBER KESSLER NOT PARTICIPATING. 1. The above-captioned applicants seek authority to construct a new television broadcast station to operate on channel 9, Orlando, Fla.1 Presently before the Review Board is a joint request for approval of agreement of dismissal, filed January 22, 1969, by Orange Nine, Inc. (Orange) and Mid-Florida Television Corp. (Mid-Florida), which contemplates dismissal of the Orange application, and reimbursement to Orange in an amount not to exceed $12,500 for out-of-pocket expenses incurred in the preparation and prosecution of its application. 2. The joint request includes the appropriate affidavits of each party to the agreement setting forth the exact nature of the consideration involved; the details of the initiation and history of the negotiations; and the reasons why the agreement is considered to be in the public interest, i.e., approval would moot an existing issue in this proceeding and simplify the comparative aspects of the case, thereby 1 Recitation of the history of this lengthy proceeding, which commenced in June 1954, is unnecessary for our present consideration. A brief statement of the major events in this proceeding appears in Commission order, F.C.C. 65-1020, 1 F.C.C. 2d 1377, wherein the Commission permitted the filing of the subject applications. 2 Also before the Board are: (a) Broadcast Bureau's comments, filed on Feb. 5, 1969; (b) reply to Broadcast Bureau's comments, filed on Mar. 5, 1969, by Orange and MidFlorida; and (c) affidavit, filed on Mar. 6, 1969, by Central Nine Corp. Although the language of the instant agreement is somewhat ambiguous, petitioners have indicated in their reply pleading that an amount less than $12,500 will be accepted by Orange, if such lesser amount is approved by the Commission. A rule 73.613(b) issue has been specified against Orange. expediting the inauguration of regularly licensed television service on channel 9 in Orlando. In addition the affidavits of the other applicants in this proceeding have been submitted pursuant to rule 1.525 (c).5 3. With respect to the reimbursement portions of the agreement, Orange has substantiated expenses well in excess of the $12,500 requested. However, the Broadcast Bureau, in its comments, notes that petitioners have failed to delineate which of the claimed expenses were incurred in the preparation and prosecution of Orange's original application, filed July 15, 1952, and the application filed February 28, 1966, and suggests that reimbursement for expenses in connection with the earlier filing may be prohibited under section 1.525 of the rules. Petitioners, in reply, point out that the latter "application" was filed pursuant to Commission order (F.C.C. 65-1020, supra), issued after the court's remand in WORZ, Inc. v. Federal Communications Commission, 120 U.S. App. D.C. 191, 345 F. 2d 85, 4 R.R. 2d 2015 (D.C. Cir. 1965). In its order, the Commission stated that “*** any qualified party which has previously filed an application [in this proceeding], may, in its discretion, bring up to date its existing application in lieu of filing a completely new application." Petitioners submit that the February 1966 addition to its application consisted merely of a pro forma change in corporate name and involved no alteration in the financial interests in or the active direction of the applicant,' and that no new file number was assigned to the application. The Board is satisfied that the expenses for which reimbursement is sought were incurred in the prosecution of a single application by Orange. As such, petitioners have complied with the requirements of rule 1.525 in all respects and approval of the instant agreement is warranted. 4. Accordingly, It is ordered, That the joint request for approval of agreement of dismissal, filed January 22, 1969, by Orange Nine, Inc. and Mid-Florida Television Corp., Is granted; that the agreement Is approved; that the application of Orange Nine, Inc. (BPCT-1153) Is dismissed with prejudice; and that the remaining applications in this proceeding Are retained in hearing status. FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary. In its comments, the Broadcast Bureau noted various infirmities in the affidavits submitted in support of the petition. Petitioners, in their reply pleading, have corrected these errors and omissions to the Board's satisfaction. The Broadcast Bureau questions the validity of a portion of Orange's claimed expenses. However, the sums which have been substantiated and are unchallenged, well exceed the amount for which reimbursement is requested. While a second fee was submitted by the applicant with the February 1966 filing, petitioners aver that said payment was a "precaution" to insure that Orange would not be precluded from prosecuting its application." 17 F.C.C. 2d |