2. Pacific asserts that the RTCM Report without modification is inadequate to determine realistically the coverage areas of the various proposals in this case. While recognizing the RTCM Report as basically valid, Pacific contends that the Report can only be relied on in this proceeding if it is modified to compensate for certain conditions which differ from those assumed in the Report. Pacific points out that, according to the Report, satisfactory reception can be obtained with a high quality receiver and in the absence of man-made noise if the power available at the receiving antenna terminal is 149.5 dB below 1 Watt (-149.5 dBw). Since these conditions are not typical, Pacific submits that a stronger signal should be used as a standard for computing service contours. 3. Pacific also argues that the RTCM Report assumes radio wave propagation over water unobstructed by terrain. Several of the applications, however, specify inland locations, and the southern California coast is mountainous with offshore islands. Thus, Pacific contends that allowances must be made for shadow losses which would reduce the effective coverage area of the stations.2 Pacific asserts that, unless the RTCM Report method for computing coverage areas is modified, the data elicited in this hearing will be erroneous and misleading. While paragraph 18 of the designation order provides for modification of the method to be used through mutual agreement of the parties, Pacific concludes that the multiplicity of parties makes such an agreement improbable in this case. 4. As Pacific predicted, the responsive pleadings filed by other parties in this proceeding, as well as those filed by Pacific, demonstrate that there is little likelihood of finding mutually agreeable standards for use in this proceeding. In this respect, the parties have suggested a variety of different and irreconcilable standards without providing significant supporting information or experimental data justifying their recommendations. In the absence of definitive and compatible information, reasonably related to results which might be derived from actual experience, we are convinced that no useful purpose would be served by further summarization of the pleadings. While the RTCM Report is a valid basic method for the determination of service areas over sea water paths, Pacific has shown that reliance upon the RTCM Report with no modification may produce misleading and erroneous results in this case, since man-made noise will likely occur, since the quality of receivers used will vary, since offshore islands exist within the proposed service areas, and since some of the applicants propose inland station locations in mountainous areas. 5. For these reasons, we believe that it is appropriate to make compensations in the standards prescribed by the RTCM Report in order to determine realistically the coverage areas of the various proposals. Our consideration of this entire matter has prompted us to adopt a Notice of Proposed Rule Making looking toward the amendment of Part 81 of our Rules to provide technical standards for the computation of service areas for Class III-B public coast stations, In this connection, Pacific has attached the "Bullington Paper," Radio Propagation at Frequencies Above 30 Megacycles, Proceedings of the Institute of Radio Engineers, Vol. 35, Waves and Electrons Section, pp. 1122-1136 (October, 1947), which it claims provides a suitable method for computing shadow losses. Docket No., FCC 70. The Rule Making Proposal provides methods for determination of service area, height of average terrain, and co-channel spacings. In the absence of agreement among the parties, we believe that the preliminary judgments set forth in the Rule Making Proposal will provide reasonably accurate and consistent results for resolution of this proceeding and that the Rule Making Proposal's standards may appropriately be used for comparison of these applications. 3 6. ACCORDINGLY, IT IS ORDERED: (a) That the motion for leave to file further reply, filed December 22, 1969, by The Pacific Telephone and Telegraph Company IS GRANTED; (b) That the petition to modify designation order, filed October 6, 1969, by The Pacific Telephone and Telegraph Company IS GRANTED to the extent indicated in this Memorandum Opinion and Order and IS DENIED in all other respects; and (c) That paragraph 18 of the Memorandum Opinion and Order, FCC 69-978, 19 FCC 2d 601, released September 15, 1969, designating this proceeding for hearing IS MODIFIED to read as follows: That coverage area will be computed on the basis, of the proposed standards embodied in the Notice of Proposed Rule Making concerning the amendment of Part 81 of our Rules, FCC 70-894, adopted August 26, 1970, Docket No. 18944. FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary. 3 Pacific claims, and the other parties substantially agree, that the "Bullington Paper," supra, provides a suitable method for computing shadow losses. The "Bullington Paper" treats several radio propagation problems and provides more than one method for determination of shadow losses. Where use of the Rule Making Proposal's method indicates coverage areas different from those expected in practice, a supplemental showing may be presented. However, such supplemental showing must stand on its own merits and must include a demonstration of the validity of the method used. Thus, any ruling on use of the "Bullington Paper" would be premature at this time. 25 F.C.C. 2d F.C.C. 69D-36 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION In the Matter of WASHINGTON, D.C. 20554 AMERICAN TELEPHONE & TELEGRAPH CO. AND THE WESTERN UNION TELEGRAPH Co. Charges and Classifications For Private Docket No. 15094 photograph Services Furnished To the Press APPEARANCES Kelley E. Griffith, Donald C. Beclar, Aloysius B. McCabe and John L. Bartlett on behalf of American Newspaper Publishers Association, Inc., Copley Press, Inc., Chicago Tribune-New York News Syndicate, Inc. and Associated Press; Donald C. Beelar, Aloysius B. McCabe, John L. Bartlett and Raymond G. Larroca (Kirkland, Ellis, Hodson, Chaffetz & Masters) on behalf of Twin Coast Newspapers, Inc., P.A.M. News Corporation and McGraw-Hill Publishing Co., Inc.; John E. Powell (Drury, Lynham & Powell) on behalf of McGraw-Hill Publishing Co., Inc.; John R. Baskin (Baker, Hostetler & Patterson) on behalf of United Press International, Inc., ScrippsHoward Newspapers and United Features Syndicate, Inc.; John B. Jacob (Dow, Lolines & Albertson) on behalf of Gannett News Service, Inc. and Advance News Service, Inc.; Douglas A. Anello, Robert V. Cahill and John B. Summers on behalf of National Association of Broadcasters; Ernest D. North, Neil N. Bernstein, John W. Gray, Jr., George E. Ashley, J. Hugh Roff, Jr., Robert W. Jeffrey, and C. Duane Aldrich on behalf of Bell System Companies and American Telephone and Telegraph Company; William Wendt, John H. Waters, Thomas R. Matias, and Kenneth F. Yates on behalf of The Western Union Telegraph Company; Alexander Hehmeyer and Neale M. Albert (Paul, Weiss, Rifkind, Wharton & Garrison) on behalf of Field Enterprises, Inc. and New York Herald Tribune; William P. Rogers, Roger A. Clark, William R. Glendon and Robert D. Larsen (Royall, Koegel, Rogers & Wells) on behalf of The Los Angeles Times and Washington Post News Service; Marshal L. Cole and Gilbert Lessenco (Wilner, Scheiner & Greeley) on behalf of Triangle Publications, Inc.: Joel Rosenbloom (Wilmer, Cutler & Pickering) on behalf of Scantlin Electronics, Inc.; Robert A. Saltzstein and Ronald E. Resh (Wyatt, Saltzstein & Moore) on behalf of American Business Press, Inc.; Robert M. Callagy (Satleib, Warfield & Stevens) on behalf of Fairchild Publications; Harvey L. Lipton (McCauley, Henry & Brennan) on behalf of Hearst Corporation, Hearst Consolidated Publications, Inc. and Hearst Publishing Company, Inc.; William M. Lesher, John M. Lothschuetz, Ernest Nash, Paul W. Hammack, Jr., and Cecil O. Simpson on behalf of the Chief, Common Carrier Bureau, Federal Communications Commission. INITIAL DECISION OF HEARING EXAMINER FOREST L. MCCLENNING (Issued June 13, 1969; Released June 17, 1969) NOTE.-See "Decision" at 24 F.C.C. 2d. PRELIMINARY STATEMENT 1. By order released May 29, 1963 (34 FCC 1094) In the Matter of American Telephone & Telegraph Company (Docket No. 11645) and The Western Union Telegraph Company (Docket No. 11646) the Commission ordered conclusion of the proceeding in those dockets referred to as "The Private Line Case," but excepted the applicability of the rate prescriptions and authorizations in its decision to private line telegraph or to private line telephotograph services utilized by the press in the collection and dissemination of general news for publication either through the press or through radio broadcasting stations. This exception was ordered though the Commission noted the following with reference to these services: Upon reconsideration we note that the record shows that there is no substantial difference between the costs of furnishing private line service to the press and to other customers. The cost data in this record also shows that the carriers' revenues from private line telegraph and telephotograph services furnished to all users, including the press, are inadequate under the currently effective schedules. The petitions before us raise substantial questions regarding the impact which changed private line telegraph and private line telephotograph rates, prescribed or authorized herein, would have upon the dissemination of news information. On the basis of the record made in these proceedings, however, we are unable to evaluate the extent to which such changed rates, if applied to the press, would impair the widespread dissemination of news information. In view of the authority given the Commission to establish a separate press class of service with charges which may be different from the charges for other classes of service, and in view of the public interest in widespread dissemination of news information, we conclude it is appropriate to withhold a determination of these questions at this time. At the same time, we deem it to be in the public interest to institute a separate investigation of the charges to the press for private line telegraph and telephotograph services to determine whether the imposition of the same charges applicable to other users would significantly impair the widespread dissemination of news information, and, if so, to determine whether we should prescribe or authorize different charges for the press, and, if so, what such charges should be. By separate order released May 31, 1963 the instant proceeding was instituted on issues limiting the proceeding to rates for private line telegraph and private line telephotograph services. Hearing was concluded on September 25, 1963 and following a Recommended Decision of the Chief, Common Carrier Bureau the case was submitted to the Commission with the filing of exceptions and briefs on June 23, 1965. By order released November 28, 1967 (10 FCC 2d 677) the Commission sua sponte reopened the record noting that effective August 1, 1967 "substantial changes in the private line telegraph and private line telephotograph rates applicable to non-press users" had been made and "Thus the factual situation has changed substantially since this proceeding was instituted and since the last action was taken herein." The issues specified upon reopening the record again limited the investigation to private line telegraph and private line telephotograph services. 2. By order of the Review Board released February 27, 1968 it was noted that new private line services have become available and have been extensively utilized by the press since commencement of this investigation and the issues, accordingly, were modified and enlarged to include "any private line service used by the press. . . ." The issues as modified and enlarged are as follows: A(1). The extent to which the charges, regulations, practices and classifications currently applicable to non-press users of the private line telegraph and private line telephotograph services offered by A.T. & T. and Western Union to non-press users would, if applied to press users, diminish, limit or impair the widespread dissemination of news; A(2). The extent to which the currently effective charges, regulations, practices and classifications for any private line service used by the press, including any revisions thereof filed by A.T. & T. or Western Union, tend to, or would diminish, limit or impair the widespread dissemination of news. B. Whether the currently effective charges, regulations, classifications or practices specially applicable to press users of private line telegraph and private line telephotograph services are unjust or unreasonable within the meaning of Section 201(b) of the Act or unduly discriminatory or preferential within the meaning of Section 202 (a) of the Act; C. Whether the Commission should prescribe or authorize a specific classification for press users of private line telegraph and telephotograph services or other private line services, with different charges and regulations for such class of users and communications, and, if so, what charges and regulations should be prescribed or authorized for such classification of users and communications. 3. The effect of these actions has been to maintain a separate rate classification for the press for private line telegraph and telephotograph services pending the outcome of the instant proceeding and both A.T. & T. and Western Union filed separate tariff schedules for the press. These continued in effect for the press the rates and regulations for private line telegraph and telephotograph services applicable to all users prior to the Private Lines decision. 4. Prehearing conferences and hearing were held in the initial phases of the proceeding on various dates in 1963 and the record was closed on September 25, 1963. Prehearing conferences and hearing were held in the phases following reopening on various dates in 1968 and the record fast closed by order released November 20, 1968. Proposed findings of fact and conclusions of law were filed in the initial phases on November 29, 1963 with reply findings being filed on December 12, 1963. Proposed findings of fact and conclusions of law were filed in the reopened phases on January 6, 1969 with reply findings being filed on January 31, 1969. 5. Some parties participated in the initial phases of the proceeding, but did not make evidentiary presentations in the reopened phases. A number filed notices of intent to appear, but did not subsequently enter an appearance. Included are the Chicago Tribune-New York News Syndicate, Inc.; United Feature Syndicate, Inc.; Gannett News Service, Inc.; New York Herald Tribune, Inc.; Triangle Publications, Inc.; Hearst Corporation, Hearst Consolidated Publications, Inc., and Hearst Publishing Company, Inc.; North American Newspaper Alliance; Minneapolis Tribune News Service; Chicago Daily News Foreign |