be served by approval of the agreement, thus avoiding a costly comparative hearing and providing a new standard broadcast service to Pittsfield, Mass., at a date much earlier than would otherwise be possible. However, as noted by the Bureau, issue 3, which runs to the financial qualifications of Blue Ribbon, must be resolved before that application can be granted.3 3. The Board has generally declined to resolve hearing issues on the basis of pleadings except in conjunction with agreements between the parties where the evidence tendered clearly establishes the qualifications of the remaining applicant, thus making possible a grant of his application and termination of the proceeding. In this case, Blue Ribbon submitted affidavits and financial statements of its principals and others who will provide financing for the proposed station, which show that each of the individuals has net liquid assets of sufficient amount to meet his or her commitment. We are, therefore, satisfied that Blue Ribbon is financially qualified to construct and operate its proposed station for 1 year. Since the Commission found Blue Ribbon qualified to be a licensee in all other respects and since an early grant of a new standard broadcast station in Pittsfield, Mass., is in the public interest, the joint request for approval of agreement and other relief will be granted. 4. Accordingly, It is ordered, That the joint request for approval of agreement and other relief, filed April 17, 1969, by Blue Ribbon Broadcasting, Inc., and Robert K. McConnell and Edward H. Peene, Jr., doing business as Taconic Broadcasters, Is granted; that the agreement Is approved; that the application of Robert K. McConnell and Edward H. Peene, Jr., doing business as Taconic Broadcasters for a new standard broadcast station at Pittsfield, Mass., BP-17499, Is dismissed with prejudice; and that the application of Blue Ribbon Broadcasting, Inc., for a new standard Broadcast station at Pittsfield, Mass., BP-17054, Ís granted, subject to the following condition: Permittee shall assume responsibility for the elimination of interference due to external cross-modulation and for the installation and adjustment of filter circuits or other equipment in antenna systems of the proposed operation and of station WBEC or any other stations, which may be necessary to prevent adverse effects due to internal cross-modulation and reradiation. In addition, field observations shall be made to determine whether spurious emissions exist, and any objectionable interference problems resulting therefrom shall be eliminated; and this proceeding Is terminated. FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary. 3 By memorandum opinion and order, F.C.C. 69R-22, 15 F.C.C. 2d 1015, the Review Board modified the financial issue against Blue Ribbon to encompass a determination of whether each of Blue Ribbon's stockholders has available sufficient funds to meet his or her commitment. Chapman Radio & Television Company, 2 F.C.C. 2d 132 (1965); Keith L. Reising, 4 F.C.C. 2d 868 (1966). 5 The questions noted by the Bureau concerning the availability of supplemental funds to offset the expenditure which arises as a result of the joint agreement, are adequately met by the documents attached to Blue Ribbon's reply to Bureau comment. 18 F.C.C. 2d F.C.C. 69D-24 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In re Application of CLEVE L. COTNER, MIKE MEYER, CARLE ROB- For Construction Permit for New Tele- APPEARANCES Docket No. 18047 Arthur Stambler and Jason L. Shrinsky on behalf of George T. Hernreich trading as KFPW Broadcasting Co.; Harold E. Mott on behalf of Cleve L. Cotner, Mike Meyer, Carle Robbins, Ernest S. Stephens, and Gilbert Forsgren, doing business as Broadcasters Unlimited; and Earl C. Walck on behalf of the Chief, Broadcast Bureau, Federal Communications Commission, INITIAL DECISION OF HEARING EXAMINER FOREST L. MCCLENNING (Issued April 9, 1969; effective June 2, 1969, pursuant to sec. 1.276) PRELIMINARY STATEMENT 1. By order released March 11, 1968, the Commission pursuant to the provisions of section 309 (e) of the Communications Act of 1934, as amended, designated the applications of George T. Hernreich trading as KFPW Broadcasting Co., and of Cleve L. Cotner, Mike Meyer, Carle Robbins, Ernest S. Stephens, and Gilbert Forsgren, doing business as Broadcasters Unlimited, for hearing in a consolidated proceeding. Each requested a construction permit for a new commercial television station to operate on channel 24 at Fort Smith, Ark. Hearing was ordered on the following issues: 1. To determine which of the proposals would better serve the public interest. 2. To determine, in the light of the evidence adduced pursuant to the foregoing issue, which of the applications should be granted. 2. A prehearing conference was held on April 30, 1968, at which time continuance of the proceeding was requested to afford opportunity for the Commission to act on a pending request for rulemaking filed by KFPW Broadcasting Co., to allocate an additional channel to Fort Smith, Ark. Continuance was granted to the date of July 22, 1968, and by order released June 25, 1968, the proceeding was continued indefinitely pending Commission action on the request for rulemaking. By order released October 4, 1968, section 73.606 (b) of the Commission's rules was amended to add channel 40 to Fort Smith. By order released December 10, 1968, the petition of KFPW Broadcasting Co., for leave to amend to specify channel 40 was granted, the amendment tendered therewith accepted and the application as amended returned to the processing line. By order released December 11, 1968, the motion for closing hearing filed by Broadcasters Unlimited was granted, the affidavits of both applicants that no consideration had been paid or received by any party in connection with the aforenoted amendment of KFPW Broadcasting Co., were incorporated into the record and the record was closed. The parties waived the right to file proposed findings of fact and conclusions of law and the right to file corrections to the transcript. FINDINGS OF FACT 3. By affidavit dated November 14, 1968, George T. Hernreich affirms that he voluntarily requested amendment of his application to specify channel 40 in lieu of channel 24 and that he was not offered nor did he receive any consideration directly or indirectly for the submission of this amendment. By affidavit dated December 3, 1968, Cleve L. Cotner, in behalf of Broadcasters Unlimited, affirms that no consideration had been promised to or paid by the partnership, by any member thereof or by any other person connected with this partnership, either directly or indirectly to George T. Hernreich in connection with the aforenoted amendment. CONCLUSIONS 4. The amendment and removal from hearing of the application of George T. Hernreich, trading as KFPW Broadcasting Co., in legal effect mooted all issues designated for hearing in this proceeding. The order of designation found both applicants qualified to construct, own, and operate the proposed new television broadcast station. In that it would bring a second local television service to the city of Fort Smith, Ark., and its environs, grant of the application of Broadcasters Unlimited would serve the public interest, convenience and necessity. Accordingly, It is ordered, That unless an appeal from this initial decision is taken to the Commission by a party or the Commission reviews the initial decision on its own motion in accordance with the provisions of section 1.276 of the rules, the application herein of Cleve L. Cotner, Mike Meyer, Carle Robbins, Ernest S. Stephens, and Gilbert Forsgren, doing business as Broadcasters Unlimited, Is granted. 18 F.C.C. 2d F.C.C. 69-605 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the Matter of LIABILITY OF BURSAM COMMUNICATIONS CORP., BURSAM COMMUNICATIONS CORP., RADIO STATION WTHE, Roosevelt Field, Garden City, N.Y. 11530 MAY 28, 1969. GENTLEMEN: This is in reference to the Commission's letter dated January 17, 1969, and to your response thereto dated February 5, 1969, concerning the broadcast activities of WTHE disc jockey Bill Shibilski. As you will recall, Commission monitoring of WTHE on Sunday, September 1, 1968, between 1 and 2 p.m. disclosed that 11 announcements, having a total air time of approximately 290 seconds, and promoting polka dances being held at the Columbus Lodge in North Massapequa, Long Island, were broadcast during the Bill Shibilski "Polka Party" program. Á subsequent examination of WTHE's program logs, however, disclosed that only two 15-second commercial announcements were logged concerning those dances, both of which indicated that an organization called Polka Pals, Inc., was the sponsor. In response to our inquiry concerning the above matter, you stated that Shibilski was under contract with WTHE to "*** produce, announce, and sell the 'Polka Party' program, which is broadcast over WTHE each Sunday from 1 to 4:30 p.m.", and that Shibilski selects all records played on the program. You stated further that Shibilski is also an officer and stockholder in Polka Pals, Inc., a corporation that promotes polka dances at the Columbus Lodge, that such dances are advertised over WTHE by Polka Pals, Inc., and by certain other sponsors of the "Polka Party" program which have "*** specifically requested that their commercials carry mention that they *** (sell) tickets ***(to those dances)." You stated further that Shibilski **** does play records of performers appearing at the Columbus Lodge dances, as he does other bands and groups appearing in the metropolitan area," and that "*** he admits to having made frequent mention of the bands and performers appearing at **** those dances. You further state that when these broadcasts were taking place you were not aware of Shibilski's association with Polka Pals, Inc., or that he was promoting that corporation's dances over your facilities, except in commercially sponsored announcements. As we have previously stated, licensees have an obligation to prevent the improper use of their facilities. When they have employees who are in a position to influence program content and who are also engaged in outside business activities which may create a conflict of interest with their roles as station employees, we stated in our letter to CrowellCollier Broadcasting Corp., 14 F.C.C. 2d 358 (1966), as follows: ** if conflicts of interest in the form of outside economic interest are not prohibited, then the personnel involved should be insulated from the process of program selection. When complete insulation cannot be effected, a licensee should take extraordinary measures to insure that no program matter is presented as a result of such practices. Furthermore: the licensee of a station * ** cannot stop with the promulgation of policies and statements, however praiseworthy, but must be vigilant in their continuing enforcement and strengthening to meet new situations as they develop. A review of your response indicates that the only control measures employed at the WTHE prior to our inquiry consisted of advising station personnel that they could not accept payment from any source other than WTHE for work done for the station, and that any conflicting interest had to be reported to station management. The facts in this proceeding disclose, however, that you were unaware of the fact that at least one station announcer was also an officer and stockholder in a corporation that promoted polka dances and that his interest therein was creating a conflict between his role as a private entrepreneur and his position as a station program producer and announcer. Thus, you appear to have been seriously remiss in your obligation to prevent the improper use of WTHE facilities. In view of your past experience, you state that WTHE has now adopted the policy of pretaping every program produced by independent program producers under contract with the station and that such tapes will be monitored by the program director in order to screen them for potential conflict of interest situations. It is noted, however, that with respect to your own employees who are involved in selection of program material, you apparently have merely requested that they report to management any outside conflicts of interest, without further effort on your part to determine whether such outside financial interests exist or are being promoted over your facilities. You are requested to submit, therefore, within 30 days of the date of this letter, a statement as to any policies and procedures you propose to adopt to insulate from the process of program selection all station personnel who may have potential conflicts of interest. If complete insulation will not be effected, state what measures you propose to take to insure that no program matter is presented as a result of such situations. In addition to the above, this letter shall, pursuant to section 503 (b) (2) of the Communications Act of 1934, as amended, serve as a notice of apparent liability for forfeiture in the amount of $5,000 for your apparent willful or repeated failure to observe the terms of WTHE's license and sections 73.93 (a), 73.57(a), and 73.113 (a) (6) of the Commission's rules. Following an inspection of WTHE on January 31, 1968, you were cited in an official notice of violation. dated February 2, 1968, for 22 violations, including noncompliance |