George O. Sutton and Arthur H. Schroeder for the applicant; Paul M. Segal and George S. Smith for Station WWSW; Horace L. Lohnes and Maurice M. Jansky for Stations WLEU and WJBK; Elmer W. Pratt and Joseph F. Pratt for the Cuyahoga Valley Broadcasting Co.

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF THE COMMISSION

FINDINGS OF FACT

1. This proceeding arose upon an application for construction permit filed by the Presque Isle Broadcasting Co., requesting authority to construct a radiobroadcast station in the city of Erie, Pa., to operate unlimited time on the frequency 1500 kilocycles with daytime power of 250 watts and nighttime power of 100 watts. The Commission was unable to determine from an examination of the application that a grant thereof would serve public interest, convenience and necessity, and designated the matter for hearing before an examiner. The hearing was held on February 24, 25, and 27, 1939. Later, on the Commission's own motion, the matter was remanded to the examiner for further hearing which was held on October 11, 1939. Thereafter, proposed findings of fact and conclusions were filed by the applicant and by the WLEU Broadcasting Corporation (WLEU), and Walker & Downing Radio Corporation (WWSW), respondents.

2. The population of the State of Pennsylvania is 9,631,350; that of the city of Erie is 115,967; that of the metropolitan district is

1 Petition for rehearing filed by WLEU Broadcasting Co. on April 2, 1940, denied on June 25, 1940. See Decision and Order on Petition for Rehearing, 8 F. C. C. 5.

129,817; and that of Erie County (in which the city of Erie is located) is 175,277 (1930 U. S. Population Census). Station WLEU is the only broadcasting station which is located in Erie or which renders primary service to the entire city. This station operates on the frequency 1420 kilocycles with power of 250 watts, unlimited time. During the day additional service which is satisfactory for portions of the residential sections of the city is received from two other stations, and during the same period some service of a satisfactory character is available in portions of the surrounding rural areas from nine additional stations.

3. Assuming that the site of the proposed station will be located near the center of Erie, the populations within the various contours of the proposed station are estimated as follows: Daytime, within the 10 millivolt-per-meter contour, 110,170; within the 2 millivoltper-meter contour, 132,120; and within the 0.5 millivolt-per-meter contour, 146,590; and nighttime, within the 10 millivolt-per-meter contour, 89,960; and within the 2.5 millivolt-per-meter contour (to which the station will be limited), 127,110. The proposed station will deliver a signal of 25 millivolts per meter to the entire business section of the city of Erie. During daytime hours of operation it will serve 99.7 percent, and during nighttime hours 97.5 percent of the total population within the metropolitan area of Erie.

4. The operation of the station proposed herein would not be expected to cause objectionable interference within the normally protected contours of any existing broadcasting stations or to the services proposed in applications for broadcast facilities which were pending before the Commission on the date on which the instant application was designated for hearing.

CONCLUSIONS

1. The applicant is legally, technically, financially, and otherwise qualified to construct and operate the proposed radiobroadcast station.

2. The operation of the proposed station would not adversely affect, by virtue of objectionable interference or otherwise, the service of any existing broadcasting stations or the service proposed in pertinent pending applications for broadcasting facilities.

3. The proposed program service is diversified and well-balanced and is expected to render substantial benefits to the listeners in the area to be served.

4. As above shown, only one broadcasting station, namely WLEU, is now located in the city of Erie. This station is, therefore, the only radio facility available in Erie for the broadcasting of local

programs and is the only medium in this city through which merchants and commercial establishments may advertise their businesses or products by means of radio broadcasting. A second broadcasting station located in Erie would compete with Station WLEU for the patronage of advertisers and for listening audiences. The competition between two local broadcasting stations would be expected to result in improvements in the program service of each and corresponding benefits would thus be received by members of the listening public. It is apparent that such competition will promote the public interest.

5. A grant of the application will serve public interest, convenience and necessity.

The proposed findings of fact and conclusions of the Commission were adopted by the Commission as the "Findings of Fact and Conclusions of the Commission" on March 13, 1940.

Decided June 25, 1940

DECISION AND ORDER ON PETITION FOR REHEARING

On March 13, 1940, after a hearing, the Commission issued an order granting the application of Presque Isle Broadcasting Co. for construction permit to erect a new radiobroadcast station at Erie, Pa., to operate on the frequency 1500 kilocycles with a power output of 100 watts night, 250 watts local sunset, unlimited time, and adopted as final its proposed findings of fact and conclusions issued January 25, 1940.

On April 2, 1940, WLEU Broadcasting Co., licensee of Station WLEU, Erie, Pa., a party to the hearing before the Commission on the above-entitled application, filed a petition for rehearing requesting us to reconsider our decision of March 13, 1940, granting the Presque Isle Broadcasting Co. application and to deny the same, or reopen the proceedings and order a rehearing of that application. On April 11, 1940, Presque Isle Broadcasting Co, filed its opposition to this petition for rehearing.

Station WLEU is authorized to use the frequency 1420 kilocycles with 250 watts power, unlimited time. No question of electrical interference is involved in this proceeding since the frequency used by petitioner and that requested by the applicant are sufficiently separated so that both may be used in the same locality without either causing electrical interference to the other.

Petitioner urges as error that we have not made findings of fact upon all of the issues set forth in our notice of hearing on the application of Presque Isle Broadcasting Co.

The Communications Act of 1934 (sec. 309 (a)) provides that if, upon examination of any application for a station license, the Commission shall determine that public interest, convenience, or necessity will be served thereby, it shall authorize the issuance thereof in accordance with said finding. If, however, upon such examination, the Commission cannot so determine, this section of the act requires us to notify the applicant thereof, fix and give notice of a time and place for hearing, and afford such applicant an opportunity to be heard. Had we been able to determine from an examination of the Presque Isle Broadcasting Co. application that the granting thereof would serve public interest, convenience, or necessity, we would have granted the same without a hearing. Not being able so to find, the application was duly heard upon specified issues. The Communications Act of 1934 does not require us to make findings on any particular issues when we grant an application after a hearing any more than it does in a case where we grant an application without a hearing. It is sufficient in our opinion that the Commission determine that public interest, convenience, or necessity would be served by the granting of the license.

Petitioner further contends that the Commission erred in failing to make findings to support the conclusions that applicant is legally, technically, financially, and otherwise qualified to construct and operate the proposed station; that the operation of the station will not adversely affect the service of any existing stations or service proposed in pending applications; that the proposed program service is diversified and well-balanced and is expected to render substantial benefits to the listeners in the area to be served; that the competition between two local broadcasting stations would be expected to result in improvements to the program service of each station and benefits to the listening public; and that a grant of the application will serve public interest, convenience and necessity.

The following facts appear in the record amply supporting the Commission's conclusions:

1. Applicant, Presque Isle Broadcasting Co., is a corporation. All of its officers, directors, and stockholders are citizens of the United States. The corporation is capitalized for $25,000, consisting of 250 shares of stock of the par value of $100 each, of which 20 shares have been issued and 230 shares have been subscribed for as follows: Jacob A. Young, 102 shares; William P. Sengel, 103 shares; Gerald P. O'Connor, 25 shares. Mr. Young has a net worth of $59,059.24, Mr. Sengel's net worth is $60,100, and Mr. O'Connor's net worth is $8,772.