Statement asserts that because of our experience with the similarity of program plans, no comparative issue will ordinarily be designated on program plans and policies, or on staffing plans or other program planning elements, and evidence on these matters will not be taken under the standard issues. While, as the Examiner stated, BBI employed more elaborate methods of ascertaining the area's needs than did Charles River, in neither case do the methods employed seem to have had an appreciable effect upon the program proposals. We believe in the final analysis that both applicants made no more than acceptable efforts to ascertain local needs and interests through local contracts and surveys. No preference, therefore, is due either of the applicants with respect to preparation and planning. 38. With regard to the respective program proposals themselves, decisional significance is accorded only to material and substantial differences between the applicants' proposed program plans. Substantial differences are considered to the extent that they go beyond ordinary differences in judgment and show a superior devotion to public service. Although an unusual attention to local community matters for which there is a demonstrated need may be urged, there is no assumption that an unusually high percentage of time to be devoted to local or other particular types of programs is necessarily to be preferred. Minor differences in the proportions of time allocated to different types of programs are not considered. This is so because precisely formulated program plans may have to be changed not only in details but in substance to take account of new conditions at the time a successful applicant commences operation. Against this background, it is clear, as the Examiner's findings show, that Charles River and BBI propose generally well-balanced program schedules, and that neither applicant's proposal demonstrates any substantial differences extending beyond ordinary differences in judgment which show a superior devotion to public service. This conclusion is not inconsistent with the Examiner's characterization of both program proposals as supplying the community. in their local offerings, a diversity of excellent programs inasmuch as that characterization is not synonymous with programming which shows a superior devotion to public service. 15 39. One aspect of BBI's program proposal in particular merits discussion. BBI proposes to devote 36.3% of its 160.5 hours of weekly programming to local live programs. In contrast, WHDH's 1962 renewal application composite week showing for local live programming is 22%, and Charles River's proposal would devote 28.5% of its weekly programming to local live programs. Holding that the crucial consideration is whether BBI established its ability to produce its "extraordinary percentage" of local live programs, the Examiner stated that BBI can only invoke brave generalities in support of its claimed ability. In addition, he stated that BBI's proposal so far exceeds that shown in WHDH's renewal application, is so much in excess of any network station and is in the vicinity of the highest percentage for independent stations, that suspicion arises that BBI's percentage figure "was flashed for its supposed value in a comparison." In sum, the Examiner held that BBI's local live program proposal was insufficiently supported. Although BBI's exceptions challenge the Examiner's conclusion as contrary to his findings of fact, we are not persuaded that this is so. When an applicant proposes such a substantial amount of local live programming as has BBI, that applicant runs the risk of having a demerit attach to its showing if it offers no substantiation for that aspect of its program proposal. It is no answer to state that the proposal is feasible because Boston is the fifth largest market in the United States and has well-known cultural, educational, civic and religious institutions which ensure virtually an inexhaustible supply of participants and subject matter for local programming. Nor is it any answer to state that the feasibility of the proposal is demonstrated by substantial surveys indicating both the need therefor and the willing cooperation of civic educational, religious, and charitable groups because, as noted, those surveys had no appreciable effect upon the program proposals. In light of the foregoing discussion, we hold that BBI should receive a slight demerit because of its insufficently supported local live programming proposal. 40. We do not believe that BBI is entitled to a preference for its proposed 24-hour operation for five days a week, Tuesday through Saturday, because adequate hours of operation are proposed by Charles River and WHDH. 15 While BBI proposed that 45.3 percent, or over 72 hours, of its weekly programming would be local live, 9 percent of that total would consist of taped repeats. 41. There is one feature of Charles River's programming proposal which warrants the assessment of a slight demerit against that application. Charles River Civic Foundation will ultimately own all of the stock of the Charles River applicant. To retain the Foundation's tax exemption as a charitable organization, no substantial part of its activities may, pursuant to the Internal Revenue Code, include carrying on propaganda or otherwise attempting to influence legislation. In addition, the Code permits tax exemption only if the organization "does not participate in or intervene in (including the publishing or distributing of statements) any political campaign on behalf of any candidate for public office." The Indenture of Trust creating the Foundation contains language of similar import. Thus although the applicant Charles River itself would pay taxes, it appears that, as found by the Examiner (I.D., para. 236), because of the ownership of all of its stock by the Foundation, the Internal Revenue Service may take the position that the applicant would be bound by the provisions of the code relating to exempt organizations. Although Charles River proposes to editorialize, it is manifest that there are limitations on the amount of time that could be devoted to controversial questions which may be legislatively related, and that such limitations are not found in ordinary television station operations. To this extent, then, the proposed operation of Charles River suffers in comparison with that of BBI. The result is that a slight demerit is assessed against Charles River on this score. 42. In weighing the slight demerits which have been assessed against BBI and Charles River, we conclude that they are offsetting in nature, and that neither applicant is entitled to a preference over the other in the matter of proposed program service. In the overall weighing process, we conclude that no one of the applicants merits a preference over the others regarding proposed program service. Thus, WHDH's program service would be a continuation of service which has been determined to be one within the bounds of average performance only, and in essence the proposals of Charles River and BBI are no more than average in nature inasmuch as there are present in neither proposal substantial differences, going beyond ordinary differences in judgment, which show a superior devotion to public service. E. OTHER FACTORS 43. A question to be resolved is whether an unauthorized transfer of de facto control occurred upon the election of a new president (Akerson) of HeraldTraveler. Based upon his extensive findings of fact, the Examiner concluded that "[b]ecause of the peculiar but not unique situation of the Heraid-Traveler in which management (the President) is in actual control, the election of a new President in fact created a new locus of control." In this regard, the Examiner stated that the presidential dominance exercised by Mr. Winslow was continued by Mr. Choate and Mr. Akerson. The Examiner held that it is unfair to hold WHDH accountable for failing to realize that the "transfusion of inchor" from Winslow to Choate and from Choate to Akerson demanded prior Commission approval inasmuch as there is no Commission precedent requiring that prior approval should be obtained before a given individual is appointed or elected to be an officer of a licensee corporation. We disagree with the Examiner's conclusions in this respect, and, for the reasons which are given hereafter, we hold that an unauthorized transfer of de facto control has occurred. 44. The following facts are illustrative of the actual control centered in Akerson (also Choate and Winslow, earlier). The Herald-Traveler Board of Directors is not a center of de facto or actual control; that Board has never given any instruction as to the voting of WHDH stock or the election of directors; the Board does not discuss station policies, practices, or programming; except for submitting capital outlays over $100,000 to the Herald-Traveler Board for its consideration, Choate was, and Akerson is, empowered to take any action thought necessary for the operation of the television station; when Choate was ill, Akerson performed his duties without further direction from the Board; and when the Board passed its resolution after Choate's death that there had not been, and would not be, any change in station policies, at least five members of the Board did not know what policies they were leaving unchanged. Against this background, and in light of the Commission's desire to be put on notice regarding the acquisition of any de facto control, it is clear that a transfer of control application should have been filed by WHDH. 45. Although it may be generally true that in the ordinary situation a routine change in officers should be reported to the Commission within 30 days after the event, the fact of the change of the locus of actual control demonstrated here places the matter in an entirely different posture. Section 310(b) of the Communication Act of 1934, as amended, provides in substance that no station license shall be transferred, assigned, or disposed of in any manner, voluntarily or involuntarily, directly or indirectly, or by transfer of control of any corporation holding such license, to any person except upon application to the Commission and upon finding by the Commission that the public interest, convenience, and necessity will be served thereby. Section 1.541 of the Commission's Rules, which was promulgated pursuant to Section 310(b) of the Act, provides, in pertinent part, that within 30 days after the occurrence of a death or legal disability of one who is directly or indirectly in control of a corporation which is a licensee, an application on FCC Form 316 is to be filed requesting consent for involuntary transfer of control of that corporation to another person or entity. Thus, WHDH had an obligation to file such an application not because the licensee corporation had a change in officers but because the change in question involved a transfer of actual control, and of "the power to dominate the management of the corporate affairs" of the licensee corporation. Cf. Western Gateway Broadcasting Corporation, 6 RR 1325 (1951). That the nature of the control exercised by Akerson (and, preceding him, by Winslow and Choate), constitutes "control" for the purposes of Section 310 of the Act is beyond question; as early as the Powel Crosley, Jr. case 16 the Commission expressed its view that nothing in Section 310(b) of the Act restricts "control" to a majority of the stock or to any definite percentage of stock. The Commission there stated: "We believe that a realistic definition of this term [control] includes any act which vests in a new entity or individual the right to determine the manner or means of operating the licensee and determining the policy that the licensee will pursue." 17 This policy has been followed in a number of decisions since the Crosley case." 46. In our judgment, therefore, WHDH was obligated to file an application for consent to involuntary transfer of control when Winslow and Choate died, and when Choate, in the first instance, and then Akerson succeeded to the office of President. However, because WHDH has never attempted to misrepresent to, or conceal from, the Commission the facts bearing on ownership and control, the circumstances presented here do not reflect so adversely on the character qualifications of the licensee as to warrant its absolute disqualification. The facts of the unauthorized transfers of control do, however, enter into the comparative evaluation, and in this regard WHDH receives a demerit. V. SUMMATION 47. Greater Boston II is disqualified and is not entitled to comparative consideration with the other applicants because of its failure to meet the two disqualifying issues which were directed against it. Even if comparative consideration were given to its application, its showings thereunder, as the Examiner concluded, are unimpressive. 48. Both Charles River and BBI must be preferred to WHDH under the diversification and integration criteria. In addition, a demerit attaches to the WHDH applicant because of the unauthorized transfers of control which have occurred. 49. As between Charles River and BBI, BBI is entitled to a slight preference on the diversification factor, and to a significant preference on the integration factor. As noted earlier herein, WHDH's past broadcast record and the past broadcast record of Mr. Jones of Charles River do not enter into the comparative evaluation for the reasons given in the discussion of such records. We also concluded that no one of the applicants merits a preference over the others regarding the proposed program service. 50. Because of its superiority under the diversification and integration criteria, we conclude that the public interest, convenience, and necessity will be best served by a grant of the application of Boston Broadcasters, Inc., and by denial of the renewal application of WHDH, Inc. and denial of the applications of Charles River Civic Television, Inc. and Greater Boston TV Co., Inc. 51. ACCORDINGLY, IT IS ORDERED, That the unopposed request of Boston Broadcasters, Inc., filed February 6, 1967, for a one-day extension of time within which to file its reply to exceptions IS GRANTED. 16 3 RR 6 (1945). 17 See, e.g., ABC-Paramount Merger Case, 8 RR 541. Town and Country Radio, Inc.. 15 RR 1035 (1960), and WWIZ, Inc., 2 RR 2d 169, aff'd sub nom. The Lorain Journal Company v. Federal Communication Commission, 351 F2d 824, cert. denied, 383 US 967. 52. IT IS FURTHER ORDERED, That the request of Boston Broadcasters, 53. IT IS FURTHER ORDERED, That the petition of Charles River Civic 54. IT IS FURTHER ORDERED, That the request for amendment pursuant 55. IT IS FURTHER ORDERED, That the application of Boston Broad- 56. IT IS FURTHER ORDERED, That no date will be specified at this time 57. IT IS FURTHER ORDERED, That the General Counsel of the Federal FEDERAL COMMUNICATIONS COMMISSION Rulings on Exceptions of Charles River Civic Television, Inc. Ruling Denied. The Examiner's findings ade- Denied. The Examiner's ruling and the Denied as immaterial in light of our Exception No. 3, 4, 5, 7, 8, 11a, 12, 13, 14, 15, 17, 18, 20, 6, 11b 9, 10, 16, 19, 30, 31, 32, 33, 35, 39, 45, 46, Granted in substance in par. 28 of the 40 Denied. The Examiner's reasoning is 44 Granted. The findings at par. 260 of 59 Granted. The findings at par. 264 of 60 Granted, and the finding is corrected 63 Denied. The findings complained of are 65 record. Denied. The record supports the sub- 73, 104 Rulings on Exceptions of Charles River Civic Television, Inc. Ruling Denied. The Examiner's technique of 86, 87 setting forth conflicting contentions in his findings is not fatal inasmuch Exception No. Denied. See pars. 10 and 11 of the De- 120, 121, 122 Denied. The record supports the con- Denied. See par. 10 of the Decision Granted. See pars. 43-46 of the Decision Granted to the extent indicated in pars. 123, 131, 146, 150, 155 124, 125, 126, 127 128 129 130, 133, 147, 166, 170, 171, 172 Exceptions 1, 2 and 53 require no rulings. Par. 1 of the Exceptions is a |