8

46. For example, the gross revenues of station WRLP for 1962 (the most recent data available in the Commission public files) totaled some $154,000 and were the highest ever received by the station. Moreover, the 1962 revenues were higher in all categories (network, national, regional and local) than in 1961 by a total of some $37,000, thus representing an increase of some 29 percent over 1961.' These figures thus contradict Springfield's undocumented assertions of declining revenues as well as its blanket assertions (comments, p. 4) that the presence of CATV automatically lessens a station's attractiveness to advertisers.

47. With respect to Springfield's contention that the paucity of local programing on WRLP is attributable to declining revenues, it is interesting to note that although gross revenues for WRLP increased by some $37,000 in 1962 over 1961, the amount spent on WRLP programing in 1962 actually decreased from that expended in 1961.10 In fact, during 1962-the year in which WRLP's gross revenues were the largest in its history-the amount allocated to programing was the lowest since the station went on the air. That Springfield would devote less of its resources to WRLP programing during a year when its revenues had reached a new peak plainly indicates that Springfield does not plan to nor has it allocated additional revenue received by WRLP to satisfy the programing needs of the people served by the station. Instead, notwithstanding Springfield's pious protestation concerning its awareness of these programing needs, the additional revenue is siphoned off to further increase the already handsome profits of Springfield. These circumstances also cast considerable doubt as to the sincerity of Springfield's protestations that it is precluded from providing local programing by factors beyond its control.

But

48. It is recognized that WRLP has not to date been a financial bonanza. in 1962, when WRLP's operating expenses were only some $132,000, the station showed a slight profit and appeared to turn the corner financially. Further, as pointed out above, the financial status of WRLP cannot be viewed apart from the extremely prosperous mother station in Springfield. Most significant for the purposes of this proceeding is the consideration that at least a part of WRLP's revenues are attributable to the circulation enjoyed by WRLP via its carriage on the area's CATV systems. Indeed, in its own promotional advertising WRLP claims CATV coverage as being a substantial reason for advertisers to buy time on the station.11 Yet in its comments, Springfield typically ignores this factor and seeks to portray CATV as being the sole factor inhibiting the further growth of WRLP revenues.

49. There are, of course, a number of reasons-none of which are related to CATV-which more plausibly account for WRLP's situation. The most important factor is undoubtedly the very nature of the operation; i.e., a satellite station operating with a minimal staff and offering de minimis local programing. The residents of the WRLP service area can scarcely be expected to develop an affinity for a station which pays such little heed to local programing needs. Thus, for the vast majority of the broadcast day the programing of WRLP is indistinguishable from that of mother station WWLP, whose service area overlaps a substantial portion of that of WRLP.12 Indeed, it is highly incongruous, yet in character, for Springfield to demand nonduplication for WRLP when it is WWLP itself which is a principal source of such duplication. Nor should Springfield by permitted to relieve itself of its programing obligations by its unsubstantiated allegations concerning CATV. The responsibility for these deficiencies should be placed precisely where it belongs-on Springfield itself.

50. Another significant consideration ignored by Springfield consists of the engineering and terrain characteristics which limit the receivability of WRLP's signal, even within its predicted service area. A prime example of the effect of these factors occurs in Athol, Mass., which is located within the predicted or theoretical city grade signal of station WRLP, but which does not actually receive a satisfactory signal. (See the Commission's findings on this point in Millers River Translators, Inc., FCC 63-375, and FCC 63-504. In the latter memorandum opinion and order the Commission stated (p. 3):

The financial data cited is from respondents' exhibit 25 in docket No. 14577 and from exhibit D in the application in dociet No. 15326.

It should also be noted that of the 12 UHF stations whose revenues in 1962 were in the same category as WRLP ($100,000-$200,000), only 2 other stations-in addition to WRLP-showed a profit.

10 The data as to WRLP's expenses is from the same sources cited in note 1, par. 46, supra.

11 See par. 40, supra.

12 The overlap of the grade A and grade B contours of WWLP and WRLP has been substantially increased by the recent modification of license granted WWLP: see Springfield Television Broadcasting Corporation (WWLP), 1 R.R. 2d 309 (1963). In fact under its authorized operation WWLP's grade A contour will extend within about 2 miles of Greenfield, and the WWLP grade B contour will extend beyond Greenfield all the way to the WRLP transmitter site, see BMPCT-5805.

"However, the Commission has no reason to change its earlier finding, in this proceeding (FCC 63-375), that Springfield has not shown that station WRLP provides service to Athol."

Accordingly, it is only by means of its carriage on the Athol CATV system that WRLP receives any circulation at all in Athol. (See NCTA comments, p. 96, and exhibit No. 18 therein and appendix hereto, separate volume, exhibit No. 1). For a licensee to attack the sole reliable means by which it reaches a nearby community borders on the incredulous and further demonstrates its utter indifference to the needs of the people in and around Athol.

51. In its publicity to sell advertising, WRLP tells a story which is very different from the one it tells the Commission. In a brochure which it distributes to the trade and potential advertisers, it states:

"Community antenna systems, plus VHF and UHF translators, extend the WRLP signal to 15,000 TV homes beyond the area measured by the rating surveys for off-air reception on channel 32. This is bonus coverage difficult to include in the rating surveys and extending well beyond normal signal patterns of WRLP.

"Viewers in southern Vermont and New Hampshire and northern Massachusetts watch WRLP on channels 2, 4, 6, 9, 10, 32, 74, and 81. This helps to explain the difficulty in recording people's viewing habits by channel number."

The brochure mentions 15,000 TV homes from CATV and translators. Yet only 6,975 are outside indicated coverage area; 7,985 are inside. Total of both is 14,960. But the brochure states the 15,000 homes are "beyond the area measured by the rating surveys for off-air reception on channel 32 *** extending well beyond normal signal patterns of WRIP." This can be construed as agreement that the 6,975 CATV and translator TV homes within the indicated contour are outside normal off-the-air reception. None are translator TV homes within the contour. (See exhibit No. 8 attached hereto for WRLP brochure, bragging about its CATV coverage.)

52. The above facts concerning Athol are also significant in that they are symptomatic of Springfield's attitude toward the WRLP service area. Thus, in March of 1959, Springfield Television was granted a construction permit for a UHF translator station to carry WRLP in Athol. But Springfield never effectuated its proposal and its construction permit was ultimately deleted at its own request in 1963. Not only did WRLP abandon its own translator authorization, but it also unsuccessfully attempted to block a nonprofit citizens group from establishing a translator in Athol. (See the Millers River proceeding, supra.) Thus, even though Springfield was not interested enough in its service area to provide a satisfactory signal to Athol, it nevertheless sought to preclude a local nonprofit citizens group from bringing television service to that community. Such indifference to the needs of its service area obviously falls far short of that to which the public is entitled.

53. The above analysis has been designed to set forth the facts which conclusively establish that Springfield has consistently made representations to the Commission which were never effectuated. Moreover, Springfield has unfairly attempted to place the responsibility for its derelictions on the CATV systems operating within its service area. When it seemed propitious, Springfield has pleaded poverty, yet when it is in its best interests, Springfield has no hesitancy in relying upon its very substantial profits. In its promotional advertising, Springfield has stressed the circulation it receives via CATV carriage, but its comments are strangely silent on this point. Most important, Springfield's attitude toward the needs of the WRLP service area continues to be one of indifference and neglect. In view of these considerations, and in view of the biased, unsubstantiated allegations contained in its comments herein, Springfield's comments actually do a disservice to the Commission and to the public interest. 54. The Commission should take care not to issue broad general rules, such as those proposed in the instant proceedings which would permit a few unreasonable broadcasters to hobble the CATV industry in its service of providing multiple television reception to the public. In an effort to furnish more data to refute the broad assertions of some broadcasters in support of the proposed rulemaking, NCTA has continued its studies and submits herewith the following data:

55. The absence of supporting data in so many broadcaster pleadings may be caused by several factors, including: (1) The absence of any data supporting the broadcaster's opinions and conclusion; or (2) the existence of data which do not support the conclusions drawn and, therefore, were not filed. NCTA will leave the Commission to draw its own conclusions. Surely an issue such

as economic injury from CATV which has been subject to vociferous broadcaster complaints should be subject to relatively easy proof and immediate illustration if the allegations ever had any substance at all.

56. In addition, by taking local circumstances and mistaking this local data for a national trend, several television broadcasters have attempted to draw broad national conclusions which do not agree with the facts. This is dramatically illustrated by facts regarding the provision for reception (or "carriage," as the Commission puts it) with grade A contours. NCTA contends that a general rule such as this will create enormous administrative burdens for the Commission.

Re testimony of William L. Putnam, Springfield Television Broacasting Corp.,
before House Committee on Interstate and Foreign Commerce.
ROBERT D. L'HEUREUX,

General Counsel, National Community Television Association, Inc.,
Transportation Building, Washington, D.C.

DEAR MR. L'HEUREUX: It it my understanding that during the course of his testimony before the House Committee on Interstate and Foreign Commerce during its hearings on H. R. 13286, H.R. 12914, and related bills, Mr. Putnam stated that he had offered to enter into a simultaneous nonduplication agreement with community antennas receiving hiss tations and that he also stated that the community antenna systems refused. Mr. Albert J. Ricci, president of Pioneer Valley Cable Vision, Inc., whom I represent and whom I believe Mr. Putnam had in mind, has attempted to negotiate such an agreement with Mr. Putnam pertaining to reception by community antenna systems operated or planned by Mr. Ricci of Mr. Putnam's television stations in Springfield, Greenfield, and Worcester, Mass.

By means of a letter dated January 19, 1966, modified to some extent in handwriting (not by my client), Mr. Putnam set forth the terms of a so-called "simultaneous nonduplication agreement" which he indicated at the time he was willing to execute. Attachment I to this letter is a xerox copy of this proposed agreement. You will note that the first paragraph of the letter contract provides that there shall be protection against simultaneous duplication by means of community antenna reception of the programs of Mr. Putnam's stations. You will note, however, that the second paragraph states that the agreement does not waive "our rights to further exclusivity in films, video tape, and other programs." Obviously, such programs will constitute the vast percentage of all television programs. I am sure that you are aware, and Mr. Putnam has to be aware, that the majority, if not all contracts between program suppliers and television stations, provide for "exclusivity" far in excess of the hour during which the program is being broadcast by the station. Thus, clearly as written, the contract provided for far more than simultaneous nonduplication, and cannot in fairness be called a simultaneous nonduplication agreement.

You will also note that the final paragraph, which is completed in handwriting on a second page, reserves additional protection rights such as might result from legal decisions or regulations issued by the FCC. Finally, you will note in that paragraph, that Mr. Putnam in effect demanded a confession of judgment in the event nonduplication protection were not given.

I advised my client that in practical effect the contract was not one for simultaneous nonduplication since, although, it called for that protection it also called for considerably more protection. I also advised Mr. Putnam's counsel to this effect in a letter dated January 25, 1966. Also, I urged that we, nevertheless, sit down and attempt to negotiate a simultaneous nonduplication agreement for our respective clients. A copy of this letter is attachment II, hereto.

I am also enclosing as attachment III, a copy of a letter dated February 7, 1966, which I received from counsel for: Mr. Putnam, in which he indicates that his client cannot accept an agreement which does not include the additional protection beyond simultaneous nonduplication. I believe that any fairminded reading of the contract suggested by Mr. Putnam, and of the exchange of correspondence between counsel, will require a conclusion that this agreement did not call only for simultaneous nonduplication as that term has been used in both the broadcast industry and the community antenna industry during the past several years.

Very truly yours,

E. STRATFORD SMITH.

JANUARY 19, 1966.

PIONEER VALLEY CABLE TELEVISION, INC.,
Greenfield, Mass.

(Attention Mr. Al Ricci).

GENTLEMEN: This will confirm our understanding reached this day to the effect that the undersigned Springfield Television Broadcasting Corp., owner and operator of stations WWLP, WRLP, and WJZV emanating respectively from the cities of Springfield, Greenfield, and Worcester, Mass., has no objection to the maintenance and operation of your CATV systems which operate within the con