BEFORE THE F.C.C. 69-330 FEDERAL COMMUNICATIONS COMMISSION In the Matter of WASHINGTON, D.C. 20554 LIABILITY OF CAMDEN BROADCASTING CORP., For Forfeiture MEMORANDUM OPINION AND ORDER BY THE COMMISSION: COMMISSIONER WADSWORTH ABSENT. 1. The Commission has under consideration (1) its notice of apparent liability dated August 28, 1968, addressed to Camden Broadcasting Corp., licensee of radio station WACA, Camden, S.C., and (2) replies to the notice of apparent liability filed September 9, and 30, 1968. 2. The notice of apparent liability in the amount of $10,000 was issued for willful or repeated violation of the terms of the station. license. Station WACA was inspected on February 17, 1968, and thereafter was issued an official notice of violation because the licensee commenced operation prior to the time specified in the station license from November 1, 1967, to the day of inspection.1 In regard to this violation, the licensee stated as follows: We do have the equipment needed to convert to 500 watts from 6 a.m. until sunrise. It will take some few weeks to have the engineering proofs and the tests made. It was my understanding that a court case, joined by several broadcasters, needed to be settled before the FCC ruling in this matter can become final. If necessary, we will feel it imperative that we also seek court enjoinment till such time as the case may be settled in court. Since there is no evidence that either Canada or Mexico has asked for such procedure, and since WACA, on 1590 cannot and does not interfere with any station coming on the air since we did, that there is absolutely no necessity and no sensible reason why this service at the perimeter of our signal should be denied our listeners. 3. The licensee was informed by telegram on June 26, 1968, that operation prior to sunrise was not authorized and that it should signify its understanding of the telegram immediately in writing. In reply, 1 Although the station license provides for operation beginning at 7 a.m. e.s.t. in November, 7:15 a.m. e.s.t. in December, 7:30 a.m. e.s.t. in January, and 7:15 a.m. e.s.t. in February, the licensee began operation during these months at 6 a.m. e.s.t. 2 The full text of the telegram is as follows: Re February 27 notice of violation and March 8 response thereto. Permissive presunrise operations under former section 73.87 were terminated by Commission report and order of June 28, 1967, effective October 28, 1967 (F.C.C. 67-767). Court decisions and stays entered since October 28, 1967 have not repeat not reinstated former permissive authority insofar as daytime-only stations on 1590 kc./s. are concerned. No record of presunrise service authority having been requested by or granted to you under section 73.99 rules. Any operation prior to licensed hours accordingly un the licensee stated that it was taking immediate steps to comply and that it had employed a consultant and would submit a proposal for presunrise service authority within 2 weeks. Inquiry was made by letter dated July 12, 1968, as to when the station was operated prior to sunrise during the period February 17, 1968, to the date of the letter of inquiry, and the licensee responded on July 22, 1968, that it "continued to sign-on with 1,000 watts at 6 a.m. local time (e.d.t.)." Since 6 a.m. e.d.t. is 5 a.m. e.s.t., it appeared that the licensee had violated the terms of its license for the entire months of February and March; that it again violated the terms of its license on or about May 1, 1968, when the station commenced operation under daylight saving time, and that the violation continued until July 22, 1968.3 4. In reply to the notice of apparent liability dated August 28, 1968, licensee does not deny the violations but states that it has "been in compliance with FCC directives concerning presunrise operation and with power reduced to 500 w. until sunrise since August 7, 1968." 4 In further reply, the licensee states that it is a small market station with a small staff; that the "directive of August, 1967 requiring reduction of power before sunrise quite caught (it) by surprise," and that when "faced with a reduction in power at a time of the day when much of the fringe area of (its) coverage (needed) special announcements, encouragement, and news, although members of the board consulted together frequently, (it) could not decide on a method of serving the entire community." It states further that it even consulted the sheriff concerning whether or not he could aid in disseminating information including that regarding emergencies but "could decide on no alternative to the use of this station at full power to discharge what (it regarded) as (its) duty." Licensee acknowledges that it was aware that, pursuant to the Commission's rules, it could broadcast during emergencies with full power but it argues that it "would break listener habits in the fringe areas" if the station operated at reduced power before sunrise on a regular basis. In mitigation, licensee cites its past record of no serious violations of the rules regarding technical operation and claims that a large forfeiture would hinder its efforts to serve the community, including delaying the construction of an FM station for which it intends to make application. Licensee argues that the purposes of the Commission would be served just as well if the fine were remitted entirely or reduced to the token amount of $1. 5. We find that the licensee willfully and repeatedly violated the terms of its license from November 1, 1967, through the month of March 1968; that the violations continued throughout the month of March even after the licensee was apprised of the violations by the official notice of violation issued on February 27, 1968, and that the licensee again willfully and repeatedly violated the terms of its license authorized. Signify your understanding of this immediately in writing. This telegram is for the purpose of defining present operating privileges and does not constitute a finding with respect to outstanding violation matters. GEORGE S. SMITH, Chief, Broadcast Bureau Federal Communications Commission. 2 WACA is authorized for operation beginning at 6:30 a.m. e.s.t. in March, 5:45 a.m. e.s.t. in April, and 5:15 a.m. e.s.t. in May, June, and July. WACA is authorized for operation beginning at 5:45 a.m. e.s.t. in August. See Friendly Broadcasting Company, F.C.C. 62-670 and 1245, 23 R.R. 893 and 898. from on or about May 1, 1968, until August 7, 1968. By failing to comply on or after June 26, 1968, the licensee appears to have deliberately ignored the Commission's telegram of June 26, 1968, specifically stating that any operation prior to its licensed hours was unauthorized. We have considered all the factors in this case, including the licensee's past technical record, its service to the community and its financial condition. However, it is obvious from licensee's response to the notice of apparent liability and from the surrounding facts of the case, that the licensee, with full knowledge of the Commission's requirements, deliberately chose to violate the terms of its license. Attempts to justify such flagrant violations by arguments stating that reduced power would "break listener habits in the fringe areas" are indicative of the licensee's attitude toward the Commission's authority. In our opinion, licensee's actions and attitude regarding the violations clearly warrant the maximum forfeiture which the Commission can impose. In making this determination, we are not unmindful of our initial choice of the sanction of forfeiture rather than the more severe sanction of revocation of license. 6. In view of the foregoing, It is ordered, That Camden Broadcasting Corp., licensee of radio station WACA, Camden, S.C., Forfeit to the United States the sum of $10.000 for willful and repeated failure to observe the terms of the station license. Payment of the forfeiture may be made by mailing to the Commission a check or similar instrument drawn to the order of the Treasurer of the United States. Pursuant to section 504 (b) of the Communications Act of 1934, as amended, and section 1.621 of the Commission rules, an application for mitigation or remission of forfeiture may be filed within 30 days of the date of receipt of this memorandum opinion and order. 7. It is further ordered, That the Secretary of the Commission send a copy of this memorandum opinion and order by certified mailreturn receipt requested to Camden Broadcasting Corp., licensee of radio station WACA, Camden, S.C. FEDERAL COMMUNICATIONS COMMISSION, 17 F.C.C. 2d F.C.C. 69-304 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In re Application of CHANNEL 16 OF RHODE ISLAND, Inc. (WNET), Docket No. 18420 PROVIDENCE, R.I. For Extension of Construction Permit File No. BMPCT6836 MEMORANDUM OPINION AND ORDER (Adopted April 2, 1969) COMMISSIONER ROBERT E. LEE FOR THE COMMISSION: COMMISSIONERS HYDE, CHAIRMAN, AND H. REX LEE NOT PARTICIPATING; COMMISSIONER BARTLEY CONCURRING IN THE RESULT; COMMISSIONER COX DISSENTING AND ISSUING A STATEMENT; COMMISSIONER WADS WORTH ABSENT. 1. Under consideration is the above-captioned application of Channel 16 of Rhode Island, Inc. (Channel 16), permittee of television broadcast station WNET on channel 16 at Providence, R.I., for an extension of time within which to complete construction of such station. By order (F.C.C. 69-30, 15 F.C.C. 2d 893), released January 17, 1969, the application was designated for oral argument on the following issue: To determine whether the reasons advanced by Channel 16 of Rhode Island, Inc. in support of its request for an extension of completion date, constitute a showing that failure to complete construction was due to causes not under control of the permittee, or constitute a showing of other matters sufficient to warrant further extension within the meaning of section 319 (b) of the Communications Act of 1934, as amended, and section 1.534 (a) of the Commission's rules. Oral argument was held before the Commission en banc on February 24, 1969. Channel 16 and the Chief, Broadcast Bureau participated in the oral argument. 2. The background of this matter is set forth in the order of January 17, 1969 designating the proceeding for oral argument, and will be referred to herein only to the extent necessary to resolve the issue presently under consideration. Channel 16 was granted a construction permit for a UHF television broadcast station in 1953. The station was constructed and it began commercial operation in 1954. However, operation of the station was suspended in July of 1955 because of heavy financial losses. By order, F.C.C. 65-217, released March 23, 1965, the application of Channel 16 for extension of its construction permit, together with a number of other applications of UHF permittees, was designated for oral argument. Following argument, we ordered, inter alia, in Joe L. Smith, Jr., Inc., et al.. F.C.C. 65-528, 5 R.R. 2d 582, released June 17, 1965, that Channel 16 be granted an extension for a period of 6 months following Commission action upon an application which Channel 16 proposed to file for modification of construction permit. We expressly provided, however, that the modification application had to be filed within 2 months after the release of the order, and that construction be completed within 6 months after Commission action on such application. A modification application was filed by Channel 16 in August of 1965 and amended November 27, 1967, and January 12, 1968. It was granted January 25, 1968, and pursuant to the terms of the order in Joe L. Smith, Jr., supra, the construction permit was extended to June 25, 1968. 3. On June 12, 1968, Channel 16 filed the captioned application for a further extension of time in which to complete construction. By letter dated July 31, 1968, the Commission advised the applicant that since the delay in construction appeared to be due to the permittee's voluntary decision to postpone construction because of economic and other considerations, rather than because of any difficulty in equipment procurement or an inability to complete construction by reason of factors beyond the permittee's control, the grant of an extension did not appear to be warranted. The permittee was further informed that if it wished to proceed with its application, it would be accorded an opportunity to present oral argument. The Commission also advised the permittee that it could request a full evidentiary hearing, but that the grant thereof would depend upon the nature of the showing made in the permittee's response. Channel 16 filed a reply to such letter submitting further argument and additional material, and thereafter the matter was designated for oral argument. 4. Channel 16 contends that it requires an extension because of the uncertainty as to the action which the Commission may take with respect to the proposal of a community antenna television system to carry the television signals of several stations into communities within Channel 16's service area. A brief statement concerning the actions. taken in the CATV proceeding will be helpful to an understanding of the issues presently under consideration. On June 5, 1967, Vision Cable Co. of Rhode Island, Inc., advised the Commission that it proposed to construct and operate CATV systems in a number of communities within the Providence, R.I., and Boston, Mass., television markets, distributing the signals of television stations licensed to Providence, New Bedford, Boston, and Worcester. Vision Cable's proposal was ordered to be held in abeyance because of the Commission's concern with the potential impact of the proposed CATV operations upon the activation of Channel 16 (Vision Cable Co. of Rhode Island, Inc., 10 F.C.C. 2d 954, adopted Dec. 13, 1967). In its order the Commission expressed the view, based upon an alleged commitment to construct by the permittee and certain other matters referred to therein, that there was "the likelihood of the near-term activation of that channel" and that initiation of the proposed CATV operations "would inject an unknown factor into this equation" (10 F.C.C. 2d at 956). However, the Commission emphasized that it did 1 Processing of the modification application was delayed because of an apparent violation of the Commission's duopoly rule (sec. 73.636 (a)). |