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In re Applications of BURBACH BROADCASTING CO., ERIE, PA. Requests: 103.7 Mc, No. 279; 50 kw; 332 feet; WERC, INC. (WERC), ERIE, PA. Has: 99.9 Mc, No. 260; 9.7 kw; 400 feet Requests: 103.7 Mc, No. 279; 50 kw; 336 feet For Construction Permits


File No. BPH-5892




12 F.C.C.2d 103; 12 Rad. Reg. 2d (P & F) 806




March 20, 1968 Adopted













    [*103]  1.  The Commission has under consideration the above-captioned applications and a joint request, as supplemented, for approval of an agreement between the parties for dismissal of the WERC, Inc., application and reimbursement by Burbach of WERC's expenses in filing and prosecuting its application.


   2.  WERC's application, originally tendered on March 1, 1967, was returned because it involved short-spacings in violation of the Commission's rules.  On May 9, 1967, the application was resubmitted with a request for waiver of the rules.  Burbach filed its application on June 21, 1967, and on July 28, 1967, filed its opposition to WERC's waiver request.  Two days before, the Commission dismissed an application for Farrell, Pa., with which WERC had been short-spaced.  As a result, a new reference point was substituted, which had the effect of increasing the short-spacing from approximately 2 miles to approximately 4 miles.  Then, on October 20, 1967, the Commission denied WERC's request for waiver, but gave WERC an opportunity to amend the application to bring it into conformity with the Commission's rules.  Although WERC, on November 14, 1967, requested additional time to submit the amendment, it instead filed the subject request on December 13, 1967.


   3.  In the joint request and supplement WERC states that another site meeting the spacing requirements had been found, but that upon further reflection it did not feel it would be appropriate to amend its application to specify this site, especially in view of the possibilities for improving the operation on its present channel, the financial and business drawbacks involved in the site change, and the necessity for a comparative hearing.  On this basis, WERC agreed with Burbach to  [*104]  dismiss in exchange for reimbursement.  In its supplement, WERC acknowledged that the Commission's decision in WMSJ, Inc., FCC 67-697, 10 R.R. 2d 404 (1967), precludes reimbursement for dismissal of unacceptable applications, but argued that the reasons for this policy were not applicable in this case and, therefore, that the decision should not preclude approval of this agreement.  According to WERC, since it was fully able to cure the defects in its application it would serve no purpose to require it to perform the useless act of doing so before permitting approval of the agreement. In its opinion, the situation is sufficiently distinguishable from that obtaining in the WMSJ case so that no question of a possible "strike" application could arise, particularly since it was the first to file.


   4.  Our reasoning in WMSJ, Inc., is equally applicable here.  There we said: * * * The rule, section 1.525, concerning drop-out and merger agreements, speaks in terms of "conflicting applications" and, before an application can acquire any rights as a conflicting application, it must be acceptable for filing.  An opposite holding would abolish the real distinction between acceptable and unacceptable proposals by affording them equal status.  This, in turn, would not only create a legal absurdity, but would also tend to encourage the filing of strike applications.  For these reasons, we are not going to sanction an agreement, now or in the future, involving a proposal which is not acceptable for filing.


It should be emphasized that neither in this case nor in the WMSJ, Inc., case is there any question concerning the good faith of the withdrawing applicant.  In fact, our policy is designed to avoid having to consider such a question by placing the matter beyond temptation.  Therefore, the distinctions urged by WERC are irrelevant.


   5.  It is ordered, that the subject joint request Is denied and the WERC application Is returned as unacceptable for filing.


   6.  It is further ordered, that the application of Burbach Broadcasting Co. Is granted.











   I dissent to this grant for just one reason -- the applicant's commercial proposal.  It states that the maximum amount of commercial time it will normally allow in any 60-minute segment is 18 minutes, which is quite acceptable.  It further said that in certain circumstances it will exceed that normal standard, but that in such cases it will not devote more than 20 minutes to commercials. This, again, would be quite reasonable -- if such a residual policy were proposed in limited and well-defined circumstances.


   The applicant says that it will extend its maximum commercial level to 20 minutes per hour in the event of emergency and between Thanksgiving and Christmas.  If "emergency" is reasonably construed, I would accept both of these as representing occasions when the slightly higher commercial volume would be acceptable.  But beyond these categories,  [*105] the applicant proposes to broadcast as much as 20 commercial minutes per hour in the event of "inadvertency of the staff" or "unusual circumstances." These concepts are so vague and could be urged to excuse the higher commercial level so much of the time that I think the applicant could carry 20 minutes of commercials whenever it could sell that much time and still be within its representations.  I think, therefore, that its proposal really has to be read as allowing 20 commercial minutes in an hour any time, and I do not think that is consistent with the public interest -- at least in the absence of a special showing justifying such a policy.  It makes the claim that applicant's normal practice will be to limit commercial time to 18 minutes in an hour a sham.  I do not think we should accept such an ambiguous standard and, therefore, dissent.


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