In Re FLINT CABLE TV COMPANY, DIV. OF WONDERLAND VENTURES, INC., FLINT, MICH. Request for Special Relief Filed Pursuant to Section 74.1109 of the Commission's Rules
FEDERAL COMMUNICATIONS COMMISSION
RELEASE-NUMBER: FCC 71-730
July 19, 1971 Released
Adopted July 14, 1971
BY THE COMMISSION: COMMISSIONERS ROBERT E. LEE AND WELLS ABSENT; COMMISSIONER BARTLEY DISSENTING AND ISSUING A STATEMENT IN WHICH COMMISSIONER JOHNSON JOINS.
[*771] 1. The Commission has under consideration its prior actions in Flint Cable TV Company, FCC 69-1394, 20 FCC 2d 921, stay granted, sub nom. Michigan Bell Telephone Company, FCC 69-1404, further stay granted, FCC 71-299, 28 FCC 2d 319; the decision of the United States Court of Appeals for the District of Columbia Circuit remanding the proceeding to the Commission for reconsideration in light of the Court's opinion (Poole Broadcasting Company v. Federal Communications Commission, Case Nos. 23,704 and 23,828, February 22, 1971); and "Joint Comments of Wonderland Ventures, Inc. and Poole Broadcasting Company," filed May 7, 1971, in which Wonderland and Poole seek Commission approval of an agreement terminating the proceeding. n1
n1 In addition, comments in support of the agreement were filed on May 21, 1971 by Meredith Corporation, licensee of Station WNEM-TV, Bay City, Michigan. Wonderland is the parent company of Flint Cable TV Company, which operates a CATV system at Flint, Michigan, and Poole is the licensee of WJRT-TV, Flint, Michigan.
2. Under the proposed agreement, Flint Cable TV Company may continue to carry Stations WJBK-TV (CBS), WWJ-TV (NBC), WXYZ-TV (ABC), and WKBD-TV (Ind.), all Detroit, Michigan, and Station CKLW-TV (CBC), Windsor, Ontario, in all areas of Flint served on December 24, 1969, together with such designated adjacent areas as cannot be efficiently provided with service different from that rendered to the areas served on December 24, 1969. In addition, the following provisions would apply to Flint Cable for a period of three and one-half years after the effective date of Commission authorization to expand carriage of the Detroit and Windsor stations in Flint, or January 1, 1975, whichever date is earlier: (1) Flint Cable shall not carry any commercial television station not licensed to Flint, Bay City, Saginaw, Lansing, Onondaga, Jackson, or Detroit, Michigan, [*772] or to Windsor, Ontario; n2 (1) Flint Cable shall not carry any Detroit or Windsor station in any areas other than those for which the Commission granted Michigan Bell Telephone Company a certificate, pursuant to Section 214(a) of the Communications Act, in Michigan Bell Telephone Co., FCC 69-1203, 20 FCC 2d 441, armed sub nom. Poole Broadcasting Company v. Federal Communications Commission, supra; (3) within the areas not served on December 24, 1969, and not specially designated in the agreement, but covered by the above-mentioned Section 214 certificate. Flint Cable may carry all Detroit and Windsor independent stations, but no Detroit or Windsor network affiliates unless necessary to provide a network program or series not broadcast by any other station carried on the system; n3 (4) within the areas not served on December 24, 1969, and not specially designated in the agreement, but covered by the above-mentioned Section 214 certificate, Flint Cable shall, at the request of a Flint, Bay City, or Saginaw station, delete reception of any program broadcast by a Detroit or Windsor station, which has a syndicated format under license to a Flint, Bay City, or Saginaw station but is produced individually by the Detroit or Windsor station and the Flint, Bay City, or Saginaw station, employing unique talent; and (5) in the event that any Flint, Bay City, or Saginaw independent station commences operation during the period specified above, Flint Cable shall afford such station whatever program exclusivity may be agreed upon the Flint Cable and the licensee of such station, or, in the absence of agreement, as the Commission may order. The proposed agreement further provides, that, during the period specified above, the terms of the agreement, and not any rules of general applicability which the Commission may adopt, shall govern the carriage of Detroit and Windsor stations by Flint Cable.
n2 Our action herein should no be construed as authorizing Flint Cable to carry any television station not already carried, absent compliance with the notification provisions of Section 74.1105 of the Rules and any other relevant provisions of the CATV rules.
n3 See footnote 1, supra.
3. In the Second Report and Order in Docket No. 14895 et al., 2 FCC 2d 725, the Commission indicated that it would give full effect to private agreements between CATV operators and local television stations relating to carriage and program exclusivity, but stated that such agreements would not avoid the necessity for an evidentiary hearing before distant signals could be imported into a top-100 television market. Although the matter before us involves television stations in three top-100 markets (Flint-Saginaw-Bay City; Detroit; and Lansing), and Flint Cable is located in one of these markets, none of the signals in question is distant; hence, the mandatory hearing requirement of Section 74.1107 of the Rules does not apply. n4 Recognizing the public interest in the growth of existing and potential television stations in the Flint area, n5 we conclude that the Poole-Wonderland agreement is acceptable, and that Commission approval is warranted.
n4 This is true despite the fact that in several cases of the same type (so-called "Footnote 69" cases), the Commission has ordered evidentiary hearings. These hearings were designated pursuant to Section 74.1109 of the Rules. See, e.g., Buckeye Cablevision, Inc., FCC 67-1281, 10 FCC 2d 745. And our earlier action in this case included a determination that a hearing was not necessary on Footnote 69 grounds.
n5 The idle assignments in the Flint-Saginaw-Bay City market are: Flint, channels * 31 and 66; Saginaw; channel 42; and Bay City, channel 61.
[*773] Accordingly, IT IS ORDERED, That the agreement between Wonderland Ventures, Inc. and Poole Broadcasting Company, filed May 7, 1971, IS APPROVED.
IT IS FURTHER ORDERED, That our action in Flint Cable TV Company, FCC 69-1394, 20 FCC 2d 921, IS MODIFIED to make it consistent with our approval of the agreement described in paragraph 2, above.
IT IS FURTHER ORDERED, That the request to terminate this proceeding, contained in the "Joint Comments of Wonderland Ventures, Inc. and Poole Broadcasting Company," filed May 7, 1971, IS GRANTED, and that this proceeding IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING STATEMENT OF COMMISSIONER ROBERT T. BARTLEY IN WHICH COMMISSIONER NICHOLAS JOHNSON JOINS
In remanding this case, the court stated that the Commission has not articulated reasons why a hearing was not necessary. The court went on to say that there may be special circumstances which obviate the need for a hearing.
I would issue a decision setting forth the public interest reasons for not holding an evidentiary hearing; reaffirm our December 24, 1969, Order denying Poole's request for special relief; and authorize Wonderland to carry the proposed signals.
In my opinion, the proposed agreement now before us is contrary to the public interest in that it unduly restricts the signals which Wonderland could carry.