substantial showing by petitioners of particularly meritorious circumstances, it would be unfair to the communications common carriers to continue these rates, which do not allow them a reasonable level of earnings, in effect any longer. 7. No such meritorious circumstances have been demonstrated here. In our Decision we concluded that the elimination of the special press rates and conditions for private line would not cause the press irreparable harm and would not diminish, limit, or impair the widespread dissemination of the news. Although petitioners have attempted to show in affidavits accompanying the petition that elimination of the preferential press rates and conditions would result in irreparable injury to themselves and to news dissemination to the public, they are in effect seeking to reargue an issue which was resolved against them in the earlier proceeding. We are not persuaded that any change in our determination of this basic issue is warranted. 8. The original extension of the effective date of our Decision was granted to afford petitioners an opportunity to effect a transition to other private line services in contemplation of the filing by AT&T of a tariff permitting petitioners to use jointly voice grade channels which, it was claimed, would be more economical. That tariff has now been filed. Although petitioners now contend that they require additional time to evaluate and implement a workable joint user arrangement, the possibility of additional expense resulting to petitioners because of our April 28, 1970, Decision terminating the special press rates and conditions cannot justify interminable postponements of the implementation of that Decision. We conclude that the public interest requires the denial of petitioners' request for a further extension of the effective date of our Decision. 3 9. Finally, as to petitioners' request for a stay, petitioners have not satisfied the Commission's standard concerning such requests. Under Commission precedent, the standard applied to requests for stay is twofold: that the petitioner show that failure to grant a stay will lead to irreparable injury to the public or to its own interests and that the petitioner demonstrate a likelihood of success on the merits of its appeal to the Court of Appeals. Carter Broadcasting Corp., 12 FCC 2d 316 (1968); Waterman Broadcasting Corp., 12 FCC 2d 300 (1968). Petitioners have met neither of these requirements. The voluminous evidence adduced in the hearings preceding our Decision terminating the preferential private line press rates and conditions failed to show that termination of such rates and conditions would cause petitioners irreparable injury or have an adverse impact on the widespread dissemination of the news. And the affidavits attached to petitioners' Petition for Modification also do not make such a showing. 10. The September 1, 1970, date is not as crucial as petitioners contend. While the new rates go into effect on that date, it is most unlikely that collection of the charges would be effected before the Court acts on a stay request by petitioners. The additional amount each 3 We note that petitioners have stated that the requested extension will not be sufficient to allow them to fully implement a workable joint user arrangement and that they do not state that they will not seek a further extension. 106-507-70-3 25 F.C.C. 2d press service was charged can easily be identified and, if such action were deemed to be warranted, the Court could either stay collection of the increased rates or direct that such sums be placed in a separate fund pending the outcome of the judicial proceeding on the merits. On the other hand if we postpone the effective date of our Decision, the existing press rates remain applicable and Western Union and AT&T will be precluded from receiving a reasonable level of earnings on such services during that period and they will not be in a position to recover the amounts lost as a result of the postponement. 11. Moreover, petitioners have not even attempted to show that there is a reasonable likelihood that they will succeed on the merits of their appeal. Since we have determined that the petitioners will not be irreparably injured by the increased rates or by a denial of a postponement pending action by the Court on a stay request, that the widespread dissemination of the news will not be adversely affected thereby, and that the existing press rates provide the communications common carriers with an unreasonably low level of earnings from the private line telegraph and telephotograph services furnished to the press, we do not believe that any further postponement in the effective date of our Decision is now warranted. 12. ACCORDINGLY, IT IS ORDERED, That the Petition for Modification filed by the Copley Press, Inc., Field Enterprises, Inc., and the Los Angeles Times-Washington Post News Service, on August 13, 1970, IS DENIED; and that the alternative request for a stay likewise IS DENIED. FEDERAL COMMUNICATIONS COMMISSION, 25 F.C.C. 2d F.C.C. 70-867 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION In Re Application of WASHINGTON, D.C. LOUIS CASHMAN, ET AL. (TRANSFEROR) and For Voluntary Transfer of Control of File No. BTC-6143 MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY (Adopted August 5, 1970; Released August 17, 1970) BY THE COMMISSION: COMMISSIONER JOHNSON CONCURRING IN THE RESULT. 1. We have before us: (a) An application for voluntary transfer of control of Delta Broadcasting Company, Inc., licensee of Station WQBC, Vicksburg, Mississippi, from Louis Cashman, et al., to Twelve-Thirty, Incorporated; (b) Petition to Deny filed by Gateway Broadcasting Co., Inc., licensee of Station WJNS-FM, Yazoo City, Mississippi, and responsive pleadings; and (c) Violations by the licensee of the terms of its license. 2. The aforementioned application for transfer of control of the licensee of Station WQBC was filed with the Commission on January 19, 1970. The transferee, Twelve-Thirty, Incorporated, is already the licensee of Station WÁZF, Yazoo City, Mississippi. On February 18, 1970, Gateway Broadcasting Co., Inc. (Gateway), and licensee of Station WJNS-FM, Yazoo City, Mississippi, filed a Petition to Deny the subject application. 3. The petitioner alleges that the 1 mv/m contours of Station WQBC, Vicksburg, Mississippi, and WAZF, Yazoo City, Mississippi, overlap and that a grant of the subject application would contravene Section 73.351 of the Commission's Rules and Regulations. In support of its contention, the petitioner offered an engineering study. In response, the transferee offered engineering data which shows that there is no prohibited 1 mv/m overlap. The transferee argues that the petitioner's measurements were taken during a period of hot weather and, 1 Section 73.35 provides that no license for a standard broadcast station will be granted to an applicant if it will result in any 1 mv/m overlap with a commonly owned AM station. therefore, during a period of high level of ground conductivity. In other words, the transferee contends that the petitioner did not adhere to the Commission's policy in these matters of using "average effective conductivity" or average values from varying seasons. See United Broadcasting Company, Inc., et al., 1 FCC 2d 555, 559 (1965). 4. The Commission has reviewed the pleadings and engineering material and concludes that there is no 1 mv/m overlap of the contours of the stations mentioned. The petitioner's cluster of measurements have no significance and cannot be used to demonstrate overlap of the 1 mv/m contours of the stations because they do not follow the methods required by Section 73.186 of the Commission's Rules to locate the 1 mv/m contour of operating stations. Therefore, the cluster of measurements taken by the petitioner have no significance. Moreover, even if full credit were given to the petitioner's measurements taken on the 216° radial of Station WAZF, which also were not taken in accordance with our Rules, a seven to twelve mile separation of the 1 mv/m contours of Stations WQBC and WAZF exists. Therefore, we conclude that a grant of this application will in no way contravene Section 73.36 of the Commission's Rules. 5. A grant of this application will certainly not result in any undue concentration of control of mass media contrary to the public interest. Additionally, the Commission finds that the transferee is legally, technically, financially and otherwise qualified, and that a grant of the application will serve the public interest, convenience and necessity. Before consenting to the transfer and the denial of the Petition to Deny, there is an additional matter which we must take up concerning Delta Broadcasting Company, Inc., licensee of Station WQBC. 6. Station WQBC is licensed for operation on 1420 kilohertz with power of 1 kilowatt daytime and 500 watts nighttime. Average sunrise times expressed in the license in Central Standard Time are: 7. The operating logs and program logs submitted with the WQBC renewal application filed February 27, 1970, reveal that Station WQBC operated with 1 kilowatt daytime power during the morning hours prior to local sunrise, at the following times on the dates listed below (Central Standard Time): November 13, 1968. March 18, 1969. 5:51 a.m. 5:51 a.m. 5:30 a.m. 5:46 a.m. 8. In view of the above, the Commission requested additional operating and program logs to determine whether the station continued to operate pre-sunrise at daytime power. Examination of these logs re vealed that WQBC was so operated at the times on the dates listed below (Central Standard Time): 9. It appears from the logs submitted to the Commission that Station WQBC operated in violaton of the terms of its license on the dates set out above, in that WQBC operated with its daytime power of 1 kilowatt during the morning hours prior to local sunrise. 10. Accordingly, IT IS ORDERED, That this document shall constitute Notice of Apparent Liability for Forfeiture to Delta Broadcasting Company, Inc., Vicksburg, Mississippi, in the amount of one thousand dollars ($1,000.00), pursuant to Section 503 (b) (1) (A) of the Communications Act of 1934, as amended, for willfully or repeatedly failing to observe the provisions of the station license. This proceeding is confined to those violations occurring within one year preceding issuance of this Notice. In view of this Notice of Apparent Liability for Forfeiture, Delta Broadcasting Company, Inc., may: (a) Pay the full amount of the forfeiture by mailing to the Commission a check, or similar instrument, drawn to the Treasurer of the United States, within thirty (30) days of the receipt of this Notice. (b) File with the Commission, within thirty (30) days of the date of receipt of this Notice, a statement showing why it should not be held liable, or if liable, why the amount of liability should be reduced or remitted. Any such statement should be filed in triplicate and should contain complete details concerning the allegations in this Notice, and justification for the violations involved, and any other information which it may desire to bring to the attention of the Commission. Upon receipt of any such reply, the Commission will determine whether the facts set forth therein are sufficient to relieve Delta Broadcasting Company, Inc., of liability or to justify either reduction or remission of the amount of liability. If it is unable so to find, the Commission will issue an Order of Forfeiture in the amount of one thousand dollars ($1,000.00). If Delta Broadcasting Company, Inc., fails to pursue either (a) or (b) above, the Commission will enter an Order of Forfeiture in the amount of one thousand dollars ($1,000). IS 11. In view of all of the above, there being no substantial and material questions of fact left unresolved, IT IS HEREBY ORDERED that the above Petition to Deny filed by Gateway Broadcasting Co., Inc., licensee of Station WJNS-FM, Yazoo City, Mississippi, and applicant for AM construction permit at Yazoo City (BP-18027), DENIED and the application for the Commission's consent to the transfer of control of Delta Broadcasting Co., Inc., licensee of Station WQBC, Vicksburg, Mississippi, from Louis Cashman, et al., to Twelve-Thirty, Incorporated, IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION, |