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Docket No. 16715 RM-965


5 F.C.C.2d 312, 8 Rad. Reg. 2d (P & F) 1558


September 28, 1966 Adopted


 1. The Commission has before it for consideration its notice of proposed rulemaking, FCC 66-541, issued in this proceeding on June 16, 1966, and published in the Federal Register on June 22, 1966, 31 F.R. 8639, inviting comments on a proposal to assign channel 269A to Rochester, Minn. This action was taken in response to a joint petition filed on May 19, 1966 (RM-965), and amended on June 13, 1966, by Olmsted County Broadcasting Co. and North Central Video, Inc. These parties are the licensees of station KOLM (AM) and KWEB (AM), Rochester, Minn., respectively. The proposal was to assign a fourth FM channel to Rochester as follows:


 2. Rochester has a population of 40,663 (1960 U.S. census) and its county has a population of 65,532. It has three AM stations, two of which are daytime-only stations [FN1] and the third is a class IV station. The two class C FM assignments are in operation. Two applications have been filed by the petitioners for the remaining class A channel (244A). These applications, BPH- 5145 and 5192, are mutually exclusive and have been designated for comparative hearing. Petitioners state that the two remaining AM stations without an FM outlet would like 'to contribute to the general diversity of program sources for their community,' that they are anxious to avoid a lengthy and expensive comparative hearing, and that the proposed additional assignment will meet all the minimum mileage requirements of the rules. With respect to the city of Rochester, petitioners submit that its population has increased 17.5 percent in the last 5 years, that approximately 450,000 persons visit it each year, a large portion of this number attributable to Mayo Clinic, and that it is a very important industrial, medical, educational, and cultural center. Petitioners assert that a special 1965 census showed Rochester to have a population of nearly 48,000, and that its growth is continuing. For the above stated reasons, petitioner urges that the addition of another FM channel to the city of Rochester would serve the public interest.

FN1 One of these (KWEB) has a construction permit for nighttime operation.

 3. Our notice invited comments additionally on the extent to which the proposed assignment would affect possible alternative uses of the proposed and adjacent channels in this general area. In response, petitioners submit that the proposed assignment can be used in a limited area in which only 2 cities of over 10,000 persons (Winona, Minn., and La Crosse, Wis.) are located and that both of these already have FM assignments. They state that the assignment in Winona has not been applied for while that at La Crosse is in use. In addition, they point out that channel 269A could be used at La Crosse as well as Rochester if a site a few miles out of the city of La Crosse is used. No oppositions to the proposed assignment in Rochester were filed.

 4. The proposal in question would provide the large and growing community of Rochester with two additional FM services at an early date, would result in the elimination of a lengthy and costly comparative hearing, and provide the area with a diversity of radio broadcast programing, without precluding future needed assignments in the general area. We are of the view, therefore, that it would serve the public interest and should be adopted.

 5. Authority for the adoption of the amendment contained herein is contained in sections 4(i), 303, and 307(b) of the Communications Act of 1934, as amended.

 6. In view of the foregoing, It is ordered, That, effective November 25, 1966, section 73.202 of the Commission's rules and regulations, the FM Table of Assignments, Is amended to read, insofar as the community named is concerned, as follows:

 7. It is further ordered, That this proceeding is Terminated.



 I think this action violates sound allocations practice. It gives Rochester, Minn., more than its fair share of aural service and blocks the possible use of the frequency to meet future needs of other communities in this area as they may develop.

 The Commission returned to the use of a table of allocations for the FM service in order to avoid the concentration of facilities in the larger markets. The demand system which has prevailed in AM radio -- and which was employed for awhile in FM as well -- leads to multiple services in big cities because the economic opportunities seem more attractive there. This has sometimes resulted in the authorization of so many stations that some, or perhaps all, of them are not soundly viable operations. At the same time, the assignment of so many frequencies to the bigger communities blocks their use in surrounding areas which may have a paucity of service -- or, at least, of local service.

 The allocation table avoids this by distributing the abvilable frequencies throughout the country with due regard both for the present needs of existing communities and for the future needs of communities now too small to support broadcast stations -- or perhaps not even in existence yet. The advantages of such a table were summarized as follows in the first report in docket No. 14185:

 * * * (1) a preengineered table is the best way to insure efficiency of channel use, better than leaving channel use to the more or less random determination of application filing; (2) a table is the best way of making provision for future needs which are not at the moment ripe for expression in application form -- e.g., needs of smaller communities, and of areas where support for FM is lacking at the present time; (3) a table forms a better way of insuring compliance with section 307(b) of the act -- calling for a fair and equitable distribution of facilities -- than does the random application process, which necessarily has to a degree a 'first come first served' aspect.

The FM Table of Assignments adopted in that proceeding allocated channels 244A, 248, and 295 to Rochester, which had a 1960 population of 40,663 (now estimated to be 48,000). The majority now adds another class A channel. The FM allocations for other communities in the area are as follows:


 Rochester is already well supplied with broadcast facilities. It has a local VHF television station and receives grade B signals from VHF stations in Austin, Minn., Mason City, Iowa, and La Crosse, Wis. It has three AM stations (one daytime only and two [FN1] full time) and two FM stations, one of which is not affiliated with any of the AM stations. The added allocation now made by the majority gives this community seven aural stations, six of them authorized to operate full time. It gives Rochester four FM channels although the criteria used in setting up the FM Table of Assignments allowed only two FM channels for cities the size of Rochester. (See footnote 1, supra, for the reason for the third FM allocation.)

FN1 One of these was a daytimer until earlier this year when the Commission, over the dissents of Commissioner Wadsworth and myself, waived our rules to grant it a nighttime authorization. See North Central Video, Inc., FCC 66- 473. Actually, Rochester had been given one more FM channel than most other communities its size to make up for the then existing shortage in nighttime service. Now the majority, in my judgment, compounds the damage it did to our AM rules in authorizing the nighttime grant by doing violence to our FM allocations principles to provide a total of six nighttime aural services for this community.

 By comparison, look at La Crosse, Wis. This city is almost exactly as large as Rochester but it has only one FM allocation (a class C channel which is in use) and three full-time AM stations, plus a television station. While the parties supporting this allocation for Rochester contended that the channel here involved could also be used at La Crosse if a site a few miles outside that city were used, I am advised that this may not be possible.If not, La Crosse will have four aural services while Rochester is given seven.

 The channel in question could also be used at Winona, a community a little over half the size of Rochester. It has two AM stations, one a full-time class IV station, the other a daytimer. It has one as yet unused class A FM assignment. As against the seven aural services to be provided for Rochester, Winona has two, plus the possibility of one more, and is being frozen at that level. Not only may Winona grow to a degree which will generate demand for additional service, but other communities in the area now too small to justify FM assignments may also develop to a degree which will make further broadcast facilities desirable. But there will be no flexibility in the Table of Assignments to accommodate such needs, even though the very purpose of such a table is to prevent present demand from blocking future needs.

 The only reasons for making this assignment are (1) that Rochester is a large and growing community (but so are many others of its general size, but which will never have seven aural services), (2) that this will result in the elimination of a lengthy and costly comparative proceeding (this is really subversive of the whole concept of an allocations table; it is simply not any part of our function to spare private parties the burdens of a contest for a scarce frequency), and (3) that it will provide the area with a diversity of radio programing (it already has more than its reasonable share) without precluding future needed assignments in the general area (which I think is of doubtful factual accuracy). As is indicated by my parenthetical comments, I do not think these are valid reasons for the action taken. This is allocation for private interest rather than in the public interest. I therefore dissent.


 I concur in the dissenting statement of Commissioner Cox.

 I would, however, like to stress that my principal dissatisfaction with the majority's disposition of this case runs far deeper and in a different channel.

 The allocation of commercial broadcast properties is but part of a larger system of spectrum allocation -- to Government and private users -- for a variety of purposes.

 Such a process should, in my view, be rational, consistent, capable of articulation, and the product of the most thorough research, and analysis of empirical data, of which we are capable.

 Today's decision seems more the product of an ad hoc disposition reigning in the absence of any clearly articulated standards for allocation priorities. The considerations which Commissioner Cox mentions should, it seems to me, form but a part of the foundation for a thorough appraisal and then definition of why, when, and where we allocate frequencies and stations.

 Until such a study and conclusions are available, however, I, too, can only consider each case as it arises. And in this instance I choose to concur with Commissioner Cox, for the reasons he states.

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