Broadcasting Telecasting (Jan-Mar 1956)

GOVERNMENT DOERFER ASKS LIMIT ON TV AFFILIATIONS FCC Commissioner recommends, as aid to uhf, that Commission pass rule forbidding television stations from receiving service from more than one network. FCC Comr. John C. Doerfer last week formally recommended that the FCC adopt a regulation forbidding a television station from affiliating or carrying the programs of more than one network. Comr. Doerfer's proposal came a week after he profferred this idea to the Senate Commerce Committee in its hearing on television matters — so vhf outlets "can't scoop off the cream of the three networks" [B»T, Feb. 27]. Basing his suggestion on the premise that programming is the most important element in the plight of uhf stations, Comr. Doerfer told his fellow commissioners that it is intended "as a program aid to those uhf stations operating in the same metropolitan area at a competitive disadvantage with a vhf station which has appropriated the cream of all three network programs to itself and to the detriment of competitive uhf operation in the same market." Mr. Doerfer said that adoption of this rule would be an expedient "until such time as the facilities for uhf transmitting and reception are substantially equal with those of vhf." By acting now, Comr. Doerfer said, the FCC would be put in a position before June 30 (the date which has been mentioned for the Com mission to complete its allocations study) to "solve an immediate and pressing problem." "Whether the Commission adopts partial or selective deintermixture or maintains a status quo," the Wisconsin Republican said, "the proposed rule would be helpful to presently operating uhf stations." Under many situations, vhf stations have primary affiliations with one network but also carry the programs of a second or a third network in addition. This is usually where there is one vhf station in a market, with the other outlets uhf facilities. In areas where there are two vhf stations, and the remainder uhf, one of the vhf stations usually is affiliated with two networks. Meanwhile, it was learned last week, the FCC staff working on the allocations proceeding has been ordered to speed up its deliberations. Although no target date has been set (July 1 has been the date most of the commissioners testifying before the Senate committee have seen as the earliest), it was understood that the staff hopes to have enough material before the Commission in another 15-30 days for the commissioners to make determinations on basic policy. This is envisaged already, it is apparent, as fundamentally a question of whether tv allocations should be premised on wide area coverage or multiple, competitive services. Present allocations principles are based on wide area coverage, with multiple services as second priority. More than 500 pleadings were filed in the Commission's allocations proceeding. Suggestions ranged from moving all tv to uhf (GE) to maintaining the status quo. Comr. Doerfer's proposal— which is officially a motion before the FCC now — suggests adding an additional provision to the television multiple ownership rules (Sec. 3.658). His recommended addition would read as follows: "(i) Multiple affiliation. No license shall be granted (1) to a television broadcast station located in any metropolitan area (as defined by the U. S. Bureau of Census, 1950) in which three or more television broadcast stations are operating, having any contract, arrangement or understanding, express or implied, for the broadcasting of the programs of more than one network organization, or (2) to a television broadcast station located in any metropolitan area in which two broadcast stations are operating having any contract, arrangement or understanding, express or implied, for the broadcasting of the programs of more than two network organizations; provided, however, that this rule shall not be applicable to the broadcasting by any television broadcast station of any network program which has been offered to and refused by another television broadcast station located in the same metropolitan area." Comr. Doerfer's proposal is similar in content to suggestions which have been made from time to time to limit network affiliation to a "one-to-a-customer" basis. During the 1954 hearings before the Senate Commerce Communications Subcommittee (Sen. Charhs E. Potter [R-Mich.], chairman), Dr. Allen B. DuMont suggested a formula by which networks would be circumscribed in their choice of an affiliate in the top 100 markets. Under one plan, each of the networks would be required to make a uhf station a primary affiliate by going down the top 100 markets and permitting each network to choose its affiliate in order (there were then four tv networks). Another plan envisaged any network having the right to demand at least 25% of a station's time. This would mean, Dr. DuMont said, that when a network's time was pre-empted by another net work it would turn to a uhf station to carry its programs. Comr. Doerfer's latest recommendation is the second sweeping allocations revision the Wisconsin commissioner has advocated in the uhf-vhf controversy. Last year, he officially suggested that all tv stations in major metropolitan areas (New York, Chicago, Los Angeles) be switched to uhf. This was during the height of the campaign by uhf stations to sell the Commission on deintermixture. FCC ASKS COURT SUPPORT OF ITS OWNERSHIP RULES Baker says if appeals court decision on Storer challenge is upheld Commission's rulemaking powers will be meaningless. At stake is limitation placed on number of stations that may be owned by company or individual. A PLEA that the U. S. Supreme Court uphold the validity of the FCC's multiple ownership rules — overturned by the U. S. Court of Appeals last year when Storer Broadcasting Co. challenged their legality — was made last week to the high court by FCC General Counsel Warren E. Baker. If the lower court's ruling is sustained, Mr. Baker declared, the FCC's rule-making powers will be "meaningless." At stake, it is understood, is the rule-making authority of all federal administrative agencies. Subject of the appeal by the FCC was a lower court ruling classing as illegal the Commission's limitation on the maximum number of broadcast facilities which may be owned by a single individual or company [B«T, Feb. 28, 1955]. The appeals court held that Sec. 309(b) of the Communications Act requires that before an application can be denied a hearing must be held. At the time the suit was initiated by Storer, one entity could own only five tv stations. This was amended later to permit the ownership of two additional tv stations in the uhf band. The seven-to-a-customer maximum also is the limit placed on am and fm stations. The case resulted when Storer, which then owned five tv stations, in 1953 filed an application for Miami's ch. 10. The Commission refused the application, and Storer brought suit in the appeals court attacking the regulation. The appeals court desision was defended by Storer attorney Albert R. Connolly. Questions from the bench were concerned mainly with whether a waiver of an FCC rule could be requested, and if so what type of hearing would be held. Justices Frankfurter, Reed and Black asked the most questions, with other justices seeking clarification of various aspects of the case. The FCC position was that the lower court misinterpreted the Communications Act. This ruling, said Mr. Baker, opens the way for anyone to require a full hearing by the filing of an application. The FCC has the right to limit ownership, Mr. Baker averred, under the Communications Act's provisions relating to diversification, the prevention of undue concentration and the antitrust laws. This right to promulgate specific regulations was upheld by the Supreme Court in the 1941 Chain Broadcasting rules and by the appeals court in the Logansport case (where the FCC's table of tv allocations was sustained), Mr. Baker said. Storer's case upholding the lower court decision was that the FCC's rule-making powers BIG VOICE OXL HIGH POINT GREENSBORO IN NORTH CAROLINA'S GOLDEN TRIANGLE fo WINSTON-SALEM f GREENSBORO HIGH POINT *S 5000 W • 600 KC • AM-FM RADIO WINSTON-SALEM NORTH CAROLINA HEADLEY-REED. Representatives Page 86 • March 5, 1956 Broadcasting • Telecasting