Submitted February 20, 1936. Decided December 1, 1936

Application for a construction permit to authorize the establishment of a new local broadcasting station granted, in part, when, inter alia:

(1) Applicant is technically, legally, and financially qualified to undertake the construction involved and operate the station in the manner proposed; (2) There is a public need for the contemplated service;

(3) Adequate financial support for the station will be obtained;

(4) The program material which the applicant will provide appears well diversified and designed to serve public interest; and

(5) Persons qualified in their respective fields of endeavor will be employed for the maintenance and operation of the station.

Application for authority to construct a new local broadcasting station and operate same on full-time denied, in part, in order that the establishment of another broadcasting station in a community, for which there is a public need, may be authorized and permitted to use the same frequency.

Arthur W. Scharfeld on behalf of the applicant; Paul M. Segal and Geo. S. Smith on behalf of Station WDAY; Reed T. Rollo on behalf of Station KGFK; James D. Cunningham on behalf of the Federal Communications Commission.

STATEMENT OF FACTS AND GROUNDS FOR DECISION

BY THE COMMISSION:

BROADCAST DIVISION, Commissioners Sykes, Chairman, Case, and Prall.

This proceeding arose upon the application of Robert K. Herbst (No. B4-P-324) which requested a construction permit to authorize the establishment of a new broadcasting station at Moorhead, Minnesota, with the operating assignment of 1310 kilocycles, 100 watts, unlimited time. The Commission was unable to determine from an examination of said application that a grant thereof would serve public interest, convenience, and necessity; and in accordance with Section 309 (a) of the Communications Act of 1934, it was designated

to be heard before an Examiner. Appropriate notice of the time and place of hearing and the issues to be determined therein was served upon the applicant and all other interested parties. In accordance with said notice, the hearing took place before the appointed Examiner on August 14, 1935, and the applicant appeared and fully participated. Likewise, the Red River Broadcasting Company, Inc., owner and licensee of Radio Station KGFK, which was then located at Moorhead, Minnesota, and WDAY, Inc., licensee of Radio Station WDAY, which operates at Fargo, North Dakota, both of which were proper parties respondent, appeared through counsel and took part in the proceeding.

Thereafter, on September 23, 1935, the Examiner's Report (No. I-108) was released, containing a recommendation that the Robert K. Herbst application be granted, if Station KGFK should be permitted to move from Moorhead to Duluth, Minnesota; otherwise, that the application be denied. (In its order dated February 19, 1935, the Commission authorized the removal of said Station KGFK from Moorhead to Duluth, Minnesota; and during the pendency of the Robert K. Herbst application there was before the United States Court of Appeals for the District of Columbia a suit involving the validity of that Commission action.) In its decision rendered May 4, 1936, the Court sustained the Commission upon the aforementioned removal question.

In behalf of the applicant and WDAY, Inc., exceptions to the aforementioned Examiner's Report were filed. Said exceptions raised no questions not necessarily involved in a determination of the application upon the merits. Oral argument relative to this Examiner's Report and the application covered therein was presented to the Commission, Broadcast Division, on February 20, 1936. Thereafter, on July 2, 1936, the Commission entered its Order, effective at 3:00 a. m., E. S. T., on September 15, 1936, denying the application. Upon reconsideration, however, this action was revoked; and on October 13, 1936, the Commission entered an Order, effective at 3:00 a. m., E. S. T., November 24, 1936, granting application, in part, whereby the proposed station would be permitted to operate during daytime hours, and share nighttime hours equally with a new station, hereinafter discussed, which, on the same date, was also authorized to use the 1310 kilocycle channel, at Jamestown, North Dakota. Said grant was made subject to the applicant's compliance with Rules 131, 132, 139.

The applicant, Robert K. Herbst, is a citizen of the United States and a resident of Fargo, North Dakota. He is President and Manager of a large mercantile establishment located in that city, which has been under his direct management and control for the past eight

years. A financial statement offered into the record discloses that the applicant has total assets amounting to $221,985.00. He is without liabilities. Applicant is shown possessed of no experience in the business of radio broadcasting, and it appears to be his intention to employ persons qualified in the business of operating and maintaining broadcasting stations.

Moorhead, Minnesota, and Fargo, North Dakota, are separated from each other by the Red River, which, at this point, is approximately one-half mile wide. According to the 1930 United States Census, the population of Moorhead is 7,651, while Fargo has 28,619. The former has a trade area of approximately 25 miles to the north, south, and east, while the trade area of the latter extends approximately 50 miles to the north, south, and west. The combined population of the trade area of these cities is estimated at approximately 100,000, involving a substantial number of persons foreign born or of foreign parentage.

In behalf of the applicant, a survey was conducted of the potential advertisers in the vicinity. It was estimated that advertising could be sold on a rate $5.00 per quarter hour or $15.00 per hour. In accordance with existing plans for commercial broadcasts, a monthly income of $1,400 was estimated. It is contemplated that the average monthly operating cost will approximate the sum of $1,200.

Proof was adduced to show that adequate local talent is available to the applicant for use in presenting programs over the proposed station, such as orchestras, bands, singing societies, and soloists. The showing was made that live talent programs would be supplemented by electrical transcriptions and recordings. It is proposed that reasonable time will be devoted to the presentation of educational, religious, civic, and health programs, and athletics of local interest. The market and weather reports, as well as news items, will be broadcast with regularity at reasonable intervals. The area proposed to be served is to a large extent agricultural, and it is planned that adequate time will be allotted for the presentation of subjects of interest to agriculturists. Said programs will be conducted by the County Agricultural Agent and other qualified persons. Entertainment and instruction under the auspices of the local Chamber of Commerce, schools, churches, and charitable organizations will likewise be presented. Programs in Norwegian, Swedish, and German languages will be provided in order to meet the needs of persons speaking and understanding those languages in the area in question. Estimates were received indicating that the total installation cost involved in the full and complete establishment of the station ranged between $10,000 and $11,000. With regard to the equipment to be used by this station, involving the transmitter and antenna, it is

proposed that the Commission's regulations shall be fully met. Likewise, it is intended that the site selected for the transmitter will be in accordance with regulations.

Radio Station WDAY, which is located at Fargo, North Dakota, operates on the frequency 940 kilocycles, with power of 5 kilowatts during the day, and 1 kilowatt at night, and provides Moorhead with a satisfactory broadcasting signal. It was shown that heretofore the station has received innumerable requests from organizations at Moorhead for the use of its facilites. As the result of a survey involving the coverage of Station WDAY, it appears that the 0.5 millivolt contour of that station extends approximately 90 miles from its transmitter, and proof was offered to show that its programs were designed to meet the needs of all communities situated within the entire area covered, and not Moorhead and Fargo alone. At the time of the hearing, the advertising rates of Station WDAY were $150 per nighttime hour (national), and $75 per nighttime hour (local). The day advertising rate of this station is approximately one-half the night rate.

At the time of the proceeding upon this application, there was pending in behalf of Roberts-MacNab Company, Jamestown, North Dakota, an application for a construction permit to authorize the establishment of a new broadcasting station in that city, to be operated upon the assignment of 1310 kilocycles, 100 watts, unlimited time. It appears that, during daytime hours, the simultaneous operation of radio stations in Moorhead, Minnesota, and Jamestown, North Dakota, each with 1310 kilocycles and 100 watts power, would be possible without causing objectionable interference within the service area of either station. During nighttime hours, however, it is indicated that, by virtue of the proximity between the cities, ruinous interference would result from such simultaneous operation. There come before us for decision at this time, therefore, the respective applications of Robert K. Herbst, herein discussed, and Roberts-MacNab Company. Separate "Statement of Facts and Grounds for Decision" has been prepared relative to the last mentioned. The former seeks authority to establish a new broadcasting station at Moorhead, Minnesota, with the operating assignment of 1310 kilocycles, 100 watts, unlimited time. The latter desires authorization for the erection of a station in Jamestown, North Dakota, with the same operating assignment. From a consideration of the records made in the proceedings had upon both applications, we find that there is a public need in each of these cities for the broadcasting service proposed. The record shows that a grant of both applications for nighttime operation would not be justified, because of resulting

1 Reported herein at p. 510.

ruinous interference. However, the parties have stipulated between themselves and have suggested to the Commission that in order to avoid conflict in the matter of interference between the two applications, simultaneous daytime operation by the proposed stations and sharing time between the two at night, would be proper under the circumstances. The stipulation further provided that the parties thereto would file with the Commission a schedule of the hours used by each, in accordance with Paragraph 155 of the Commission's regulations. Upon consideration of said stipulation and in the light of the records made in the respective hearings conducted upon these applications, the Commission finds that public interest, convenience, and necessity would be served through the simultaneous daytime operation of both of the proposed stations, and sharing time during nighttime hours.

It appears from the record, therefore, that applicant Robert K. Herbst is technically, legally, and financially qualified to construct and operate the broadcasting station proposed for the City of Moorhead, Minnesota; that there is a need for the broadcasting service expected to be rendered; that adequate financial support for the new station is shown to be reasonably expected; that adequate local talent is available to the applicant for purposes of building suitable programs; that sufficient time will be given to programs conducted under the auspices of charitable, religious, civic, agricultural, and educational organizations and institutions; and that a staff of qualified persons will be employed by the applicant in the maintenance of the station.

Under consideration of the application, the record made in the hearing, the Examiner's Report and exceptions filed thereto, oral argument, and the decisions of the United States Court of Appeals for the District of Columbia relative to the proceedings upon the aforementioned application involving the removal of Station KGFK from Moorhead to Duluth, Minnesota, the Commission is of the opinion, and so finds, that public interest, convenience, and necessity would be served through a grant of this application, in part, authorizing daytime hours of operation, and sharing time during nighttime hours with Roberts-MacNab at Jamestown, North Dakota. In making said finding, consideration is also given the record made upon the application of the Roberts-MacNab Company. In accordance with these findings, an Order was entered on October 13, 1936. effective at 3:00 a. m., E. S. T., on November 24, 1936, granting the Robert K. Herbst application, in part, authorizing daytime use of the 1310 kilocycle frequency and sharing time at night with the Roberts-MacNab Company, subject to compliance with Rules 131, 132, and 139. On November 24, 1936, the Commission extended the effective date to December 8, 1936.