In re
Application of PARIS-BOURBON COUNTY BROADCASTING, INC., PARIS, KY. For
Construction Permit
BPH-5502
FEDERAL
COMMUNICATIONS COMMISSION
6
F.C.C.2d 894; 9 Rad. Reg. 2d (P & F) 122
January 25, 1967
[*894] On January 25, 1967, the Commission en banc, by
Commissioners Hyde (Chairman), Bartley, Lee, Loevinger, and Wadsworth, with
Commissioner Cox dissenting, and Commissioner Johnson concurring with
statement, granted construction permit for a new class A FM station to operate
on channel 244 (96.7 Mc/s), effective radiated power 3 kw, antenna height 105
feet, remote control permitted, condition.
CONCURRING STATEMENT OF COMMISSIONER NICHOLAS JOHNSON
APPLICATION OF PARIS-BOURBON COUNTY BROADCASTING, INC., FOR FM RADIO
STATION IN PARIS, KY.
I concur, but not without some hesitation.
Paris, Ky., a town of 7,794 people, is far from its foreign namesake.
It is 17 miles northwest of Lexington in the heart of the blue grass
country. In the words of the Paris-Bourbon County Broadcasting Co., the
applicant for this construction permit, "there is very little cultural or
economic variance in our coverage area."
At the present time Paris has one local radio station and one local
daily newspaper. To be sure it receives radio signals from other
communities and has access to other newspapers (including a weekly paper
published in Paris), but the predominant mass media serving the people of Paris
are this one station and this one newspaper. For local elections and
discussion of other local public issues, virtually all the information received
by the people of Paris is disseminated by that sole radio station and that sole
daily paper.
The corporation which holds the license for Paris' radio station has
three equal shareholders. Two of these shareholders hold a controlling
interest in the local newspaper. I consider such overlapping of interests
in the mass media most unfortunate, regardless of the national significance of
the market. The first amendment of our Constitution, the Supreme Court
has said, "rests on the assumption that the widest possible dissemination
of information from diverse and antagonistic sources is essential to the
welfare of the public." Associated Press v. United States, 326 U.S. 1, 20
(1945).
The problem is by no means confined to Paris, Ky. Overlapping
ownership of radio stations and newspapers, as well as magazines, book
publishers, motion picture producers, and theaters is all too
[*895] common in our society. But in one sense the situation is
less grave in our large urban areas than in Paris, Ky. Our great centers
of population inevitably seem to have at least some diversity in the ownership
of the mass media -- even when one voice is predominate. Paris has
virtually none. And though ours is increasingly an urban nation, we must
not forget that there are still over 80 million Americans who live in the
Paris, Kentuckys of this country -- the cities and rural areas under 10,000
population.
Now Paris has been assigned an FM station. Paris-Bourbon County
Broadcasting, Inc., has applied for a construction permit to build and operate
this new source of entertainment, information, and opinion. If another
qualified applicant were competing for this permit, it is highly unlikely this
Commission would award it to Paris-Bourbon. For when two applications for
the same station must be compared, the Commission has said, we believe that there
are two primary objectives toward which the process of comparison should be
directed. They are, first, the best practicable service to the public
and, second, a maximum diffusion of control of the media of mass
communications. The value of these objectives is clear.
Diversification of control is a public good in a free society, and is
additionally desirable where a government licensing system limits access by the
public to the use of radio and television facilities.
Policy Statement on Comparative Broadcast Hearings, 5 R.R. 2d 1901,
1908 (1965). Moreover, the Commission's rules would absolutely prohibit
granting a license to Paris-Bourbon if this were a second AM rather than an FM
station. No broadcaster can hold licenses for two AM stations serving the
same area. 47 C.F.R., section 73.35 (1966).
Unfortunately, however, there is no competing applicant for the permit,
and hence the Commission has decided to grant Paris-Bourbon's
application. In this action I concur, for at least in some limited sense
it will be a gain for Paris, Ky. Although the FM station will duplicate
all of the AM's programming at first, it also will provide Paris' first local
nighttime radio service and may eventually introduce a greater variety of
programming.
My hesitation derives from the fact that if the Commission's past
record is any guide, the control of the mass media in Paris in all probability
will be frozen forever in the hands of one set of individuals, and only
voluntary action by those individuals can bring a thaw.
After Paris-Bourbon's 3-year license period expires, the Commission can
theoretically assign the license to the best applicant, employing the same
criteria which would be relevant in first assigning the station. The
Communications Act is explicit: "No * * * license shall be construed to
create any right beyond the terms, conditions, and periods of the license"
(sec. 301). But in practice the Commission never fails to renew a license
except for the most serious breach of conduct. Thus, if 3 years from now,
Paris-Bourbon seeks to renew its license n1 and
another party, not involved in other mass media, [*896] also wishes
the license, Paris-Bourbon almost surely will receive the award. This is
a gross anomaly. The policy considerations underlying our favoring
diversity in mass media in original licensing certainly extend to
renewals. That those considerations are vital to our free society only
makes the anomaly the more tragic.
n1 After the holder of
a construction permit has completed construction of a station, a license to operate
is granted virtually automatically. The 3-year license period does not
start to run until the pro forma grant of a license takes place.
Our rules require that significant applications regarding broadcast
licenses be given public notice in the community involved (sec. 1.580).
Our requirements are so minimal, however, both as to the character and content
of the public notice that I have substantial doubt that the Commission's
procedures are in any way adequate to fully inform a local community, and
potential competing applicants, of the importance of the result to the
community, the economic value of the property, the public-interest
responsibility of the applicant, the opportunity for competing applicants to be
heard, the present state of concentration of control of media in the community,
and the full range of economic interests of the applicant. I have even
greater doubt that such community awareness will be generated by Paris-Bourbon
at its renewal time than upon this initial application. Moreover, by then
the economic advantages of Paris-Bourbon in its holding action will
substantially offset the incentive of any potential competitor. Thus, it
may very well be that the whole procedure in such cases -- and the result in
this one -- should be challenged.
For this case, however, I have simply asked the Commission to encourage
others to apply for this FM station when Paris-Bourbon's license expires, at
least by indicating in its opinion its readiness to give genuine consideration
to any competing applications at that time -- what I had hoped was simply a
restatement of Commission policy and practice. This it has refused to
do. In light of its refusal, I can only indicate my own readiness to hear
from future competing applicants, and hope for a more enlightened policy from
this Commission in the future. n2
n2 Within the context
of a concurring opinion in this particular case I purposely have not proposed
amendments to the Commission's rules regarding concentration of control of
broadcast properties and other media. I do not wish to exclude such an
approach, and would welcome its consideration by the Commission. Such
rule changes seem improbable, however, from a Commission disinclined to issue
even the kind of modest statement proposed here.
Perhaps we should adopt a rule simply prohibiting single ownership of
newspapers and broadcast properties in a local community. Certainly, we
should have more evidence than we do of the implications of such concentration
for the communities involved. We should know more than we do of the
benefits that derive from the addition of, for example, the nighttime FM
service proposed here. It very well may be that the evils of the former
more than outweigh the benefits of the latter.
It appears that FM radio is in a period of great growth -- as an
independent source of programming, with independent ownership. It is likely
this growth will encompass communities such as Paris, Ky., within the next
decade. It may be that the burdens of waiting for new ownership to apply
for this Paris FM station would be more than offset by the benefits to the
community from greater diversity. This would be a major issue in
considering a Commission rule prohibiting joint ownership of AM and FM stations.
The Commission has made successful efforts to discourage competing
applicants at renewal time. See, e.g., Hearst Radio, Inc. (WBAL), 15 FCC
1149, 6 R.R. 994 (1951). Indeed, I know of no instance in the 33-year history
of the Commission in which a competing applicant has successfully challenged
the license renewal of an established multiple-media owner on the basis of
concentration of ownership -- or, for that matter, any other ground.
I am pleased to note, however, that there are, nevertheless, a
number [*897] of pending license renewal proceedings today in which
new applicants are competing with established broadcasters. The Supreme
Court has expressed its view unequivocally:
The policy of the act is clear that no person is to have anything in
the nature of a property right as a result of the granting of a license.
Licenses are limited to a maximum of 3 years' duration, may be revoked, and
need not be renewed. Thus, the channels presently occupied remain free
for a new assignment to another licensee in the interest of the listening
public. Federal
Communications Commission v. Sanders Brothers Radio Station, 309 U.S. 470, 476
(1940). (The "policy" referred to is set forth in sec. 301 of
the Communications Act.)
The possibility remains that the Commission may yet bring to life this
Supreme Court interpretation of Commission responsibility and competing
applicant opportunity. If there is any evidence forth-coming that such
hopes are realistic, there may be some advantages to the approach I have tentatively
endorsed in this Paris, Ky., FM station application. If time proves it to
have been a naive and futile gesture, I would urge consideration of a more
general study and establishment of standards by Congress or this Commission.