Miami Valley Broadcasting Corp. v. United States
Opinion
Davis, Judge,
delivered tbe opinion of tbe court:
Plaintiffs seek judgment for $866,166.97, with interest, for refund of alleged overpayments of federal income tax and assessed interest for taxable years 1959,1960,1961 and 1962. They paid tbe amounts of tax as computed on tbeir returns [586] for suck years, and also the deficiencies and interest, as assessed or determined by the Internal Revenue Service; timely filed claims for refund for those years, which were denied; and thereafter timely filed their petition, seeking relief on the same grounds asserted in their claims.
Plaintiff Carolina Broadcasting Company (Carolina) is and was a wholly owned subsidiary of plaintiff Miami Valley Broadcasting Corporation (Miami Valley), respectively corporations of Delaware and Ohio. They filed consolidated income tax returns for the years 1959-1961, and Carolina filed its separate return for 1962. The tax liabilities in issue arise out of the business affairs of Carolina, and Miami Valley is a plaintiff only because of the filing of the consolidated returns.
On May 14, 1959, after obtaining approval of the Federal Communications Commission (FCC), Carolina purchased all of the outstanding stock of WSOC Broadcasting Company (WSOC company) for an agreed price of $5,600,000. WSOC company was a corporation which owned and operated radio and television stations WSOC-AM, FM, and TV, broadcasting at Charlotte, North Carolina. The stockholders of WSOC company were the sellers of the entire business of that company.
Effective June 1, 1959, WSOC company was liquidated in accordance with the provisions of 26 TJ.S.C. §§ 332 and 334(b) (2), and all of its assets were distributed to and all of its liabilities assumed by Carolina. Those assets and liabilities related to the operation of the radio and television stations and that business continued without interruption under direct control of Carolina upon liquidation of WSOC company.
On June 1, 1959, Carolina’s total adjusted cost basis of the WSOC company stock, to be allocated to the assets acquired from WSOC company, was $6,719,696, which included the $5,600,000 paid for the stock and $1,199,696 in liabilities assumed in the liquidation.
Section 1.334-1 (c) (4) (viii) of the Treasury Regulations provides that, upon complete liquidation of a subsidiary under 26 TJ.S.C. § 334(b) (2), the parent corporation’s adjusted basis in its subsidiary’s stock is to be allocated among the various assets received (except for cash and its equiva[587] lent), both tangible and intangible (whether or not depre-ciable or amortizable), in proportion to the net fair market value of such assets on the date received.
The parties are in agreement that, after deduction of $193,122 in cash and $231,348 in accounts receivable distributed to Carolina in the liquidation, Carolina’s adjusted cost basis to be allocated to all other assets, tangible and intangible, was $6,295,226. The parties further agree that the amounts allocable to two items of intangible assets, i.e., the transmitter site lease and the film contracts, were respectively $84,076 and $209,917, leaving a balance of $6,001,233.
This balance of $6,001,233 remains for allocation to all other assets, i.e., the tangible assets and the following intangibles : NBC television network affiliation contract, ABC television network affiliation contract, the NBC radio network affiliation contract, and the FCC radio and television licenses. (The radio network affiliation contract and the radio licenses had only minimal values in relation to the other intangibles, because of lack of past and prospective profitability of the radio operations.) Essentially this case involves the allocation of this $6,001,233 among these assets for tax depreciation and amortization purposes.
I
The tangible assets are the land, improvements, technical installations, equipment and supplies, and other physical items, all of which constituted the well-designed, completed, tested and fully operational plant and facilities existing in the operations of WSOC-AM, EM and TV, as of June 1,1959. The first question before us concerns the basis for depreciation of these tangible assets during the taxable years; the Internal Bevenue Service disallowed depreciation deductions calculated by taxpayers on a higher basis than the Service thought proper.
a. The reproduction cost of each of the separate tangible assets is not in dispute, being in the amounts set forth in finding 6, totaling $2,178,072 for all the assets. Defendant argues that that sum is the amount to be allocated to the tangible assets. The reproduction costs of those assets included catalogue prices, labor, freight, sales tax and super[588] vision, but did not contain any element of increase in value because such, assets were parts of an assembled and operating plant. The Government argues that, at least in this instance where the physical assets were practically new, already assembled, and in good working order, nothing should be added for so-called “turnkey value” — the value of an equivalent plant with guaranteed equal performance.
The answer lies, we think, in Section 1.334-l(c)(4) (viii) of the -Regulations, supra,, which refers us, for this basis allocation, to the net fair market value of the tangible assets— not to the seller’s cost or even for that matter the buyer’s actual cost. Reproduction cost can be an adequate measure of fair market value, especially where as here there is no real market,1 since that is what the buyer would have to pay if he did not purchase the particular item from the seller but had it replaced by fabrication or construction (1 J. Bon-BRIGHT, VALUATION OF PROPERTY 156-57 (1937)).
By the same token, we agree with plaintiffs that fair market value would take into account the fact that this buyer received (and was entitled mider its contract to receive) a put-together plant in good all-round working shape, not a congeries of uncoordinated physical assets liable as not to fail to work as a unit. The “turnkey” product was worth more than the sum of the untested and uncoordinated parts, even though they were all constructed and installed in place. Normally a buyer would pay an increment for such an assurance that the plant and equipment would all work together without need of costly and time-consuming adjustments and coordination.
In this case the total of the itemized reproduction costs for the individual items did not include any charge related [589] to (or market value based upon) this “turnkey” guarantee that a fully tested and operational plant was and would be available to be handed over. The overhead, contingencies and profit included in those invidual sums 'appear to cover only the costs of the contractor’s and subcontractor’s work on the individual items. The charges of a “turnkey contractor”, with responsibility for overall supervision and coordination of the complex project, are not reflected in the tabulation. If Carolina had to obtain an equivalent plant with guaranteed equal performance, the cost of that plant would in all probability have included the total of the reproduction costs of the individual assets ($2,118,072), plus increments covering construction interest, and the contractor’s contingencies,overhead and profit for the “turnkey” aspect.
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Davis, Judge,
delivered tbe opinion of tbe court:
Plaintiffs seek judgment for $866,166.97, with interest, for refund of alleged overpayments of federal income tax and assessed interest for taxable years 1959,1960,1961 and 1962. They paid tbe amounts of tax as computed on tbeir returns [586] for suck years, and also the deficiencies and interest, as assessed or determined by the Internal Revenue Service; timely filed claims for refund for those years, which were denied; and thereafter timely filed their petition, seeking relief on the same grounds asserted in their claims.
Plaintiff Carolina Broadcasting Company (Carolina) is and was a wholly owned subsidiary of plaintiff Miami Valley Broadcasting Corporation (Miami Valley), respectively corporations of Delaware and Ohio. They filed consolidated income tax returns for the years 1959-1961, and Carolina filed its separate return for 1962. The tax liabilities in issue arise out of the business affairs of Carolina, and Miami Valley is a plaintiff only because of the filing of the consolidated returns.
On May 14, 1959, after obtaining approval of the Federal Communications Commission (FCC), Carolina purchased all of the outstanding stock of WSOC Broadcasting Company (WSOC company) for an agreed price of $5,600,000. WSOC company was a corporation which owned and operated radio and television stations WSOC-AM, FM, and TV, broadcasting at Charlotte, North Carolina. The stockholders of WSOC company were the sellers of the entire business of that company.
Effective June 1, 1959, WSOC company was liquidated in accordance with the provisions of 26 TJ.S.C. §§ 332 and 334(b) (2), and all of its assets were distributed to and all of its liabilities assumed by Carolina. Those assets and liabilities related to the operation of the radio and television stations and that business continued without interruption under direct control of Carolina upon liquidation of WSOC company.
On June 1, 1959, Carolina’s total adjusted cost basis of the WSOC company stock, to be allocated to the assets acquired from WSOC company, was $6,719,696, which included the $5,600,000 paid for the stock and $1,199,696 in liabilities assumed in the liquidation.
Section 1.334-1 (c) (4) (viii) of the Treasury Regulations provides that, upon complete liquidation of a subsidiary under 26 TJ.S.C. § 334(b) (2), the parent corporation’s adjusted basis in its subsidiary’s stock is to be allocated among the various assets received (except for cash and its equiva[587] lent), both tangible and intangible (whether or not depre-ciable or amortizable), in proportion to the net fair market value of such assets on the date received.
The parties are in agreement that, after deduction of $193,122 in cash and $231,348 in accounts receivable distributed to Carolina in the liquidation, Carolina’s adjusted cost basis to be allocated to all other assets, tangible and intangible, was $6,295,226. The parties further agree that the amounts allocable to two items of intangible assets, i.e., the transmitter site lease and the film contracts, were respectively $84,076 and $209,917, leaving a balance of $6,001,233.
This balance of $6,001,233 remains for allocation to all other assets, i.e., the tangible assets and the following intangibles : NBC television network affiliation contract, ABC television network affiliation contract, the NBC radio network affiliation contract, and the FCC radio and television licenses. (The radio network affiliation contract and the radio licenses had only minimal values in relation to the other intangibles, because of lack of past and prospective profitability of the radio operations.) Essentially this case involves the allocation of this $6,001,233 among these assets for tax depreciation and amortization purposes.
I
The tangible assets are the land, improvements, technical installations, equipment and supplies, and other physical items, all of which constituted the well-designed, completed, tested and fully operational plant and facilities existing in the operations of WSOC-AM, EM and TV, as of June 1,1959. The first question before us concerns the basis for depreciation of these tangible assets during the taxable years; the Internal Bevenue Service disallowed depreciation deductions calculated by taxpayers on a higher basis than the Service thought proper.
a. The reproduction cost of each of the separate tangible assets is not in dispute, being in the amounts set forth in finding 6, totaling $2,178,072 for all the assets. Defendant argues that that sum is the amount to be allocated to the tangible assets. The reproduction costs of those assets included catalogue prices, labor, freight, sales tax and super[588] vision, but did not contain any element of increase in value because such, assets were parts of an assembled and operating plant. The Government argues that, at least in this instance where the physical assets were practically new, already assembled, and in good working order, nothing should be added for so-called “turnkey value” — the value of an equivalent plant with guaranteed equal performance.
The answer lies, we think, in Section 1.334-l(c)(4) (viii) of the -Regulations, supra,, which refers us, for this basis allocation, to the net fair market value of the tangible assets— not to the seller’s cost or even for that matter the buyer’s actual cost. Reproduction cost can be an adequate measure of fair market value, especially where as here there is no real market,1 since that is what the buyer would have to pay if he did not purchase the particular item from the seller but had it replaced by fabrication or construction (1 J. Bon-BRIGHT, VALUATION OF PROPERTY 156-57 (1937)).
By the same token, we agree with plaintiffs that fair market value would take into account the fact that this buyer received (and was entitled mider its contract to receive) a put-together plant in good all-round working shape, not a congeries of uncoordinated physical assets liable as not to fail to work as a unit. The “turnkey” product was worth more than the sum of the untested and uncoordinated parts, even though they were all constructed and installed in place. Normally a buyer would pay an increment for such an assurance that the plant and equipment would all work together without need of costly and time-consuming adjustments and coordination.
In this case the total of the itemized reproduction costs for the individual items did not include any charge related [589] to (or market value based upon) this “turnkey” guarantee that a fully tested and operational plant was and would be available to be handed over. The overhead, contingencies and profit included in those invidual sums 'appear to cover only the costs of the contractor’s and subcontractor’s work on the individual items. The charges of a “turnkey contractor”, with responsibility for overall supervision and coordination of the complex project, are not reflected in the tabulation. If Carolina had to obtain an equivalent plant with guaranteed equal performance, the cost of that plant would in all probability have included the total of the reproduction costs of the individual assets ($2,118,072), plus increments covering construction interest, and the contractor’s contingencies,overhead and profit for the “turnkey” aspect.
It makes no difference on this point that the plant was virtually new, or that the seller (the WSOC company) may not have paid such “turnkey” costs to someone else, or that “turnkey” contracts -may not be a general industry practice, or that the Cox chain (of which plaintiffs formed a part) never used such contracts. We are determining the fair market value of this plant and these tangible assets which plaintiffs actually received in the spring of 1959, in the state in which they were acquired — not what the seller had paid out or what plaintiffs and the broadcasting industry may do in other circumstances. If the seller of this property did not pay out “turnkey” costs to another, it assumed or bore them itself in this instance, and would undoubtedly seek to charge its buyers for them if it could. The fact that the plant was new would be irrelevant if, as we think clear, the cost and worth of a new “turnkey” plant exceeds that of a new plant which has not been tested and coordinated, and is not guaranteed to be in good working shape. There is no sound reason to believe that plaintiffs or any other purchaser o'f these assets in the Charlotte market would not have paid such an increment in 1959 in order to obtain the plant in its then operating condition.
Plaintiff’s appraiser, Horace W. Gross, arrived at a total reproduction cost of the tangible assets of $2,696,964— $518,892 'above the total reproduction costs of the individual assets — which he termed “turnkey value.” He used the agreed [590] reproduction costs of the individual assets and added costs which would have been incurred in their assembly into a fully operational plant under a turnkey contract with guaranteed performance.2 No element of profitability was included in such computation, except, of course, the profit to be realized by the contractor on the construction project.
Mr. Gross’ assessment of the total reproduction cost was accepted by the trial judge as reasonable and sufficiently accurate. We have no ground for rejecting the trial judge’s general appraisal of this evidence. He did reduce the total to $2,600,000 because the WSOC plant and facilities had been in operation for about 2 years and some minor wear and tear would have occurred, but plaintiff correctly observes that the appraiser’s assessment already took account of depreciation (insofar as it had occurred) and that at the trial stage defendant did not seek any reduction from the total of the reproduction cost figures for the individual items. In those circumstances the reduction was not warranted. We therefore find the total reproduction cost (including the “turnkey” factor) to be $2,696,964.
b To his total reproduction cost of $2,696,964, Mr. Gross added almost $1 million to arrive at his total fair market value of all tangible assets in the sum of $3,636,783, which he termed the “immediate use value” as of June 1,1959. He based this increment on the financial benefit to be derived by Carolina from the immediate and continuing use of the 'broadcast facility during the period after June 1,1959, which would have been required to construct an equivalent plant. Such a construction period would have been 2 years, absent lengthy delays. The television industry was affluent in 1959, there was considerable demand for broadcasting equipment, and some delays were reasonably to be expected.
In the appraiser’s view, the financial benefit to be derived from immediate and continuing broadcast operations over the 2-year construction period was primarily that Carolina would realize net earnings and cash flow which would otherwise be lost during such period, and also that Carolina could increase its rate of earnings during such period to a point [591] above that which could be expected at the commencement of operations delayed to the end of the construction period, and that Carolina would effect savings in unproductive overhead, such as salaries and taxes, which would be incurred in such period.
The trial judge considered the increment sought by taxpayers to be too high but he accepted an additional sum of $600,000 (over and above the total reproduction cost, including the “turnkey” increment) as part of depreciable fair market value of the tangible assets. We cannot agree that in this case any extra sum is allowable (over total reproduction cost) for the purposes of depreciation.
Insofar as this additional amount is intended to reflect the increased value of the individual tangible assets because they were assembled, installed, integrated, tested, coordinated, and in operating order, that type of increment is already reflected, as shown supra, in our figure for total reproduction cost. To the extent that the extra $600,000 (or more) is thought to represent pure goodwill, it is of course not depreciable or amortizable. Winn-Dixie Montgomery, Inc. v. United States, 444 F. 2d 677, 683 n. 8 (5th Cir. 1971); cf. Meredith Broadcasting Co. v. United States, 186 Ct. Cl. 1, 18-21, 405 F. 2d 1214, 1224-25 (1968).
If the supplement stands for a separate “going concern value” — in the sense of the special value inherent in a functioning established plant continuing to operate, to do business, and to earn money, with its staff and personnel — then that element, too, is not to be considered as an enhancement in the market value of depreciable assets for the purposes of depreciation. United States v. Cornish, 348 F. 2d 175, 185-86 (9th Cir. 1965); Winn-Dixie Montgomery, Inc. v. United States, supra, 444 F. 2d at 685; Northern Natural Gas Co. v. United States, 470 F. 2d 1107, 1109-1110 (8th Cir.), cert. denied, 412 U.S. 939 (1973). As the Eighth Circuit said in Northern Natural Gas Co.:
This allowance for depreciation is intended to provide a nontaxable fund to restore income-producing assets at the end of their useful life and their capacity to produce income has ceased or, to allow a taxpayer to recoup his investment in wasting assets free of income tax. [citation omitted] With this in mind, we conclude that the basis [592] for depreciation of a purchaser of a going concern should not include the “enhanced” portion of the acquired assets’ value. Though the assets of a going concern may have a greater actual value when acquired in their combined form and therefore cost more to acquire, at the end of these assets’ useful life they will not be separately replaced with new tanks and cylinders [the assets in that case] with like enhanced value, but only by tanks and cylinders at the ordinary prices of suppliers. The going concern value or enhancement in the assets’ value remains and is independent of the exhaustion of the individual assets. See Cornish, supra, at 185.
We do not view our holding as being in conflict with [Int. Kev. Code] § 1012 which dictates that the basis for depreciation shall be the cost of the acquired property. This was not a transaction involving the purchase of assets with a fair market value of X dollars which, following the end of their useful life, will be replaced by like assets of similar cost. Here, the acquired assets carried additional value due to their being combined in a particular manner in a going concern ana this additional value will not depreciate but will continue to exist possibly for the life of the business which acquired the assets.
For this reason a “going concern” component cannot be used, for depreciation purposes, as part of the basis of the deprecia-ble tangible assets.3
Taxpayers argue that the increment here does not represent such “going concern value” but rather the element of immediate availability or immediate use value, i.e. the ability to have and to use the plant on June 1,1959, rather than to have to wait some two years for its equivalent to be reproduced. It is said that, unlike the present case, in Northern Natural Gas Co. and Cornish (the leading cases on the non-depreciability [593] of an increment for “going concern value”) there was no contention or showing that replacement of the assets would take time or be delayed. Here the construction of an equivalent plant would consume at least two years.
The difficulty is that, assuming that such an “immediate use value” can sometimes enhance the fair market value of a tangible depreciable asset (see 1 J. BoNbeight, ValuatioN oe PROPERTY 157-58 (1937)), plaintiffs have not proved this to be such a case. Professor Bonbright warns that “the practical difficulties of estimating in monetary terms those losses which would result from the delay are likely to be so serious that an appraiser or a court will not attempt it”, and he pointed out that the common law tends to limit the appraisal to replacement cost “through its vaguely defined restrictions against allowances for consequential speculative damages, speculative values, or lost opportunities to make a profit.” Ibid. This view cautions that, to bo allowable at all, “immediate use value” must be shown persuasively and clearly, and by a proper measure.
The overall criterion is, as we emphasize again, fair market value, and we are not persuaded either (a) that in 1959 a “willing buyer — willing seller” negotiation for this plant would have added an appreciable sum over total reproduction cost (including the “turnkey” increment) for “immediate use”, or (b) that even if such an increment would have been added it would be measured by the anticipated profits from the plant during the next two years. This is not, so far as we know, an instance in which buyers would be desperate or exceedingly anxious to obtain this plant at once; though plaintiffs wanted to enter the Charlotte market, there is no adequate showing that they were so intent on entering only that market, and entering it in the spring of 1959, that they (or any other purchaser) would have paid a significant sum above total reproduction cost for this particular plant at that particular time.4 Combined with this great factor of doubt is the unlikelihood that, if any increment were added at all, plaintiffs would agree to have it gauged by the “lost” profits [594] of an equivalent plant for the next two years; there is no reason to believe that if the taxpayers had had to wait for two years for a plant they would not have used their capital to good advantage in some other or substitute endeavor to make up at least a good part of these so-called “lost” profits.5 Fair market value of the tangible property would not be enhanced, if at all, by the full amount of the so-called “lost profits.” Indeed, the use of full profitability as the measure smacks of “going concern value” rather than an “immediate use” increment — and there is much in the evidence and the trial judge’s discussion to suggest that a proper separation between the two concepts was not maintained in the presentation and consideration below.6
We are led by these grave doubts to hold that in this case plaintiffs have failed to prove the existence of any excess value in the tangible assets attributable to freedom from delay and, if any did exist, a correct standard of measurement.7 The fair market value of the tangible assets must stand at $2,696,964.
II
The next set of issues involves the duration for amortization purposes of the ABC and NBC television affiliation contracts.8
Since the expiration of the DuMont television network in 1955, there have been only three national commercial television networks, CBS, NB'C and ABC. They have been the [595] major source of high-level competitive programming for local stations. During the 1960’s, CBS accounted for about 40 percent of all television network revenues. As between NBC and ABC, NBC has been stronger in overall program popularity and network service.9
Generally, in any market where the number of television stations is the same or greater than the number of networks, and where there are at least three competitive stations, each of the three networks enters into an exclusive affiliation contract with one television station in that market. This is a standard primary affiliation contract for which the station does not pay the network. Such contract provides inter alia that: (1) the network, at its own expense, will provide programming to the station; (2) the network promises the station to offer it first call for all programs broadcast in that community; and (3) the network agrees to pay the station a specified percentage of the station’s network time rate paid to the network by the national advertiser sponsoring the network program.
Commercial television is dependent upon revenues from advertisers. Advertisers seek large audiences, and the popularity of television programs is of paramount importance to them, whether on a national, regional or local basis. Network programs generally have substantially exceeded local programming in popularity, and network affiliated stations have in general attracted much larger audiences than independent stations in the same market. Only in the very large markets, such as New York City, Chicago, San Francisco-Oakland, and Washington, D.C., have independent stations been able to attract audiences comparable to those of affiliated stations, and thus to attain comparable revenues. For the various reasons detailed in the findings of fact herein, the economics of the television industry is sucb that generally an affiliated station has substantially greater advertising revenues and profits than an independent station in the same market. One very important factor is that an affiliated station not only receives its share of the revenues from [596] the sale of network time to national advertisers, whose announcements are interspersed throughout a network program, but also revenues from sale by such station (without network involvement) to national and local advertisers of the highly lucrative adjacencies to network programs, the intervals of time reserved to the affiliated station between network programs or between segments of long network programs. The use by national advertisers of adjacencies is called “national spot” advertising, sold by an advertising agency or agencies of the local affiliated station, subject only to a sales commission.
Network affiliation is such a powerful 'factor in the concentration of profitability in the television industry that the relationship between each television network and one local station in a given market, as extended throughout the nation, has been termed an oligopoly. However, the national network systems stem in substantial part from the circumstance that only a few of the 12 very high frequency (VHF) channels are available for television broadcasting in a given market, and despite the availability of 70 ultra high frequency (UHF) channels in recent years, television networks have continued to favor VHF stations, because UHF commercial stations have generally failed to become competitive for technical and other reasons.
On the date of liquidation of WSOC company, June 1,1959, there were only two commercial television stations operating in the Charlotte, North Carolina, market. These were both VHF stations, one being subject station, WSOC-TV (Channel 9), and the other WBTV (Channel 3). No other VHF station has ever operated in that market. In 1961, the FCC refused to allocate another VHF channel there.
The strongest of the two stations was WBTV, which commenced operations in July 1949. Until 1957, when subject station commenced operations, WBTV maintained network affiliations with all three television networks, but thereafter was exclusively affiliated with CBS.
Subject station, WSOC-TV, began broadcasting in April 1957, and immediately obtained primary affiliation contracts with both NBC and ABC, maintaining such dual affiliation until September 30, 1967, when it terminated the ABC con[597] tract, and thereafter has had exclusive affiliation with NBC.
In November 1964, UHF commercial station W'CCB-TV (Channel 18) commenced operations in the Charlotte market, and has remained in continuous operation since that time, men WSOC-TV terminated its ABC contract in 1967, WCCB-TV became and has remained affiliated with that network.
The only other commercial television station ever broadcasting in the Charlotte market was another UHF station, WCTU-TV (Channel 36), which began broadcasting in July 1967, and has continued to the present time, being an independent station, unaffiliated with any network.
Since the advent of television, the FCC has sought to provide multiple competitive television broadcasting in the larger cities, and in particular has attempted in each of the top 50 markets, which on June 1, 1959, included Charlotte, North Carolina, as the 25th market in audience size, to provide at least three competitive television stations. ABC, having a lesser number of affiliated stations than CBS and NBC, has consistently exerted pressure toward that end, obviously supported nationwide by its affiliated stations.
In 1952, the FCC allocated 70 UHF channels to television, and expressed the hope that the UHF band would be fully utilized, and that UHF television stations would compete on a favorable basis with VHF as an integral part of a single, nationwide television service. It was even contemplated that commercial television might be transferred from the VHF to the UHF band.
In the late 1950’s, it had become apparent that UHF television had not become competitive with VHF, and the FCC proposed allocation of a third VHF station in a number of markets, including Charlotte, North Carolina, although such proposal was rejected in 1961.
In 1959, the FCC recommended the enactment by Congress of the All-Channel Keceiver legislation, prohibiting' shipment in interstate commerce of new television sets not equipped to receive both VHF and UHF signals. UHF television broadcasting had been seriously handicapped by the paucity of home sets equipped to receive its signals. Such legislation was, of course, enacted in time by Congress.
[598] Considering the circumstances existing in the Charlotte, North Carolina, market, and in the light of the actions and announced policies of the FCC, it was reasonably predictable as of June 1, 1959, that within 10 years, a third commercial television station would become established and competitive in such market, that there would then be a restructuring of such market in the normal pattern of each television network being exclusively affiliated with one television station, that CBS would remain exclusively affiliated with the strongest station, WBTV, that WS'OC-TV (by Carolina) would move to make a choice between NBC and ABC for an exclusive affiliation, that both NBC and WSOC-TV would prefer and accomplish exclusive affiliation between them, and that ABC would be left to affiliate with the new competitive station in the market. These expectations actually came to pass.
From all of the evidence in this case, it is found that the ABC television network 'affiliation contract with WSOC-TV had a reasonably predictable life of 10 years as of June 1, 1959, with amortization of the cost basis of that asset to be computed accordingly during the taxable years in suit. The Internal Bevenue Service disallowed claimed amortization deductions for the ABC network contract.
With respect to WSOC-TV’s television network affiliation contract with NBC, however, it is concluded that plaintiffs are not entitled to amortization deductions on Carolina’s allocable cost of that 'asset during any of the taxable years in issue, because the testimony and evidence fail to establish that such affiliation contract had a reasonably ascertainable future life. Commissioner v. Indiana Broadcasting Corp., 350 F. 2d 580 (7th Cir. 1965), cert. denied, 382 U.S. 1027 (1966); Westinghouse Broadcasting Co. v. Commissioner, 309 F. 2d 279 (3d Cir. 1962), cert. denied, 372 U.S. 935 (1963); Roy H. Park Broadcasting, Inc., 56 T.C. 784 (1971) ; Gulf Television Corp., 52 T.C. 1038 (1969).
Plaintiffs’ position, controverted by defendant, is that the NBC television network affiliation contract had a useful life of not more than 30 years from June 1,1959, seeking to have this court adopt the theory of plaintiffs’ expert witnesses, opposed by defendant’s expert witnesses, that whether or not WSOC-TV’s affiliation with NBC terminates by 1990, the [599] economic characteristics of such affiliation contract will be so different that it must be considered an entirely different asset than the contract acquired by Carolina in. 1959, and that the value which Carolina paid for such contract in 1959 will have been exhausted by 1990. The factual basis for plaintiffs’ predictions in this respect is set forth in the extensive findings of fact. Basically plaintiffs’ argument is that in the light of the pronouncements and actions of the FOC to foster competition and attain diversity of programming in television broadcasting, the growth of competitive television outlets, both commercial and otherwise, and natural forces inherent in commercial television must inevitably eliminate the network-affiliate oligopoly. Plaintiffs state that they expect the television networks and their affiliates to continue to operate profitably, but that the value of a television station’s affiliation with a network will be exhausted in the time indicated.
The competitive forces upon which plaintiffs rely are in the main the pronouncements of the FOC against the control of supply of television programming by the three networks, FCC actions toward providing greater competition and additional outlets within a given market, the availability of the UHF band for licensing and operation of additional stations, and the nature, state of development and competitive potential of noncommercial public or educational television (PTV), subscription television (STV), and cable or community antenna television (CATV).
Upon careful consideration of the opposing opinions of the expert witnesses, and upon consideration of all of the evidence in this case, it is concluded that the record as a whole persuasively indicates that, as of 1959-1962, the NBC television network affiliation contract might be expected to remain in force for a wholly unpredictable period of time, and that the value of such contract would not be exhausted by any reasonably ascertainable time. The findings detail the facts as to the status of PTV, STV, and CATV, and the other circumstances which plaintiffs invoke. Suffice it here to say that we are not at all convinced by the plaintiffs’ predictions that, as of 1959-1962, the demise of network [600] power was foreseeable by 1990 (or any other date). The preponderance of the evidence is to the contrary.
Ill
There remain the questions of the allocation of cost basis to the television network affiliation contracts and to the FCC television license.10
Plaintiffs would have the court allocate $3,600,000 to the tangible assets (but see Part I, supra), thus leaving about $2,400,000 for allocation to the radio and television network affiliation contracts and the FCC radio and television licenses. Plaintiffs seek to have 90 percent of the residual sum (or about $2,200,000) allocated to the television network affiliation contracts, with 55 percent of the latter sum to the NBC contract and 45 percent to the ABC contract. Thus, plaintiffs would have only about $200,000 allocated to the FCC television license and to the NBC radio network affiliation contract and radio licenses. Disregarding the radio network affiliation contract and the radio licenses, defendant seeks to have 80 percent of the residue (over the allocation to the tangible assets and other agreed values) allocated to the FCC television license, 14 percent of the residue to the NBC television contract and 6 percent to the ABC contract.
The NBC radio network affiliation contract and the FCC radio licenses had minimal values. Neither of such intangibles is shown to have an ascertainable future life, which is also the case with respect to the FCC television license and the NBC television network affiliation contract. Consequently the radio contract and the radio licenses are lumped respectively with the NBC television network contract and the television license in allocating basis to the-three remaining intangibles, i.e., the two network television contracts and the FCC television license.
The adjudicated cases cited by the parties furnish little in the way of guidelines for the allocation of basis to the intangibles in this case, but rather indicate that the determi[601] nation must be made largely on the facts and circumstances peculiar to each case. Mathematical precision is impossible, and the broadest kind of estimates must be made. Meredith Broadcasting Co. v. United States, 186 Ct. Cl. 1, 24, 405 F. 2d 1214, 1227 (1968). See Roy H. Park Broadcasting, Inc., supra; Indiana Broadcasting Corp., 41 T.C. 793 (1964), red’d on other grounds, Commissioner v. Indiana Broadcasting Corp. supra.
Within the framework of the evidence adduced in this case, it is concluded that plaintiffs and defendant both seek unreasonable allocations in furtherance of their purposes, and that the percentages of the residue fairly and reasonably allocable to the three intangibles as of June 1, 1959, and during the taxable years in suit, are as follows: NBC television network affiliation contract, 89%; ABO television network affiliation contract, 26%; and the FCC television license, 35%.
In Meredith Broadcasting Co. v. United States, supra, this court stated in the light of the facts and circumstances of that case that an FCC television license is, from a practical standpoint, a more permanent arrangement than network affiliation contracts, rejecting as unpersuasive the taxpayer’s argument that the license had no value, that it was merely a license to lose money, and that profitability of operations should not be ascribed to the license, but rather to the network affiliation contracts. Nevertheless, the court recognized that the network affiliations had substantial value, even though there was considerable chance that they would continue to exist for only a relatively short period of time, as proved to be the case. The court allocated remaining basis 50 percent to the television network affiliation contracts, 35 percent to going concern value (including the licenses), and 15 percent to television advertising contracts.
An FOC television license has value in relation to its use in profitable, or potentially profitable operations. It can be transferred from one holder to another only with the approval of the FOC which administers a stringent policy against trafficking in broadcast licenses. In the circumstances existing in the Charlotte market, the WSOC television license had substantial value, because the WSOC operations [602] had been and were reasonably expected to be profitable. However, such license did not have overwhelming value merely because the WSOC television operations would not have existed without the license.
It is clearly established in this case that the profitability of the WSOC-TV operations, established as of June 1, 1959, by experience over the preceding 2 years, and reasonably expected to improve thereafter, was due to its television network affiliations. WSOC-TV’s most valuable intangible assets were its NBC and ABC television network affiliation contracts. Unlike the gamble involved in the Meredith case, WSOC-TV reasonably could expect, as we have found, to retain the ABC affiliation for 10 years and the NBC affiliation indefinitely and much longer.
Of course, with WBTV exclusively affiliated with CBS, and with no other competitive station in the Charlotte market, WSOC-TV was assured of affiliations with NBC and ABC for the asking and without cost in 1959. Obviously the sellers of WSOC-TV would not have operated their television broadcast business without obtaining such readily available affiliations, and they must have regarded such affiliations as valuable assets of their business. The actual existence of such affiliations, as well as their ready availability and prospective long lives, figured prominently in the decision of the buyer to purchase, and the buyer and sellers must have given full consideration to these circumstances in fixing of the agreed purchase price. It cannot be found that such affiliations had little or no value, because they could have been readily obtained by the buyer without cost, assuming unrealistically that they did not exist at the time of the sale agreement in 1959.
The detailed facts which establish the prospective profitability of the WSOC-TV operations are set forth in the extensive findings of fact made in this case, repetition of which would unduly prolong this opinion.
Mention must be made, however, of the circumstance that in the appraisal report prepared by Horace W. Gross for plaintiff in 1959, the fair market values of the NBC and [603] ABC television network affiliation contracts were determined respectively to be only in the sums of $665,990 and $471,476. These low values stemmed from mistaken assumptions that such contracts would terminate in 1963.
In his testimony before this court in 1971, Mr. Gross stated that if he had assumed in 1959 that the ABC contract had a life of 8 years (and it was in fact terminated in 1967) and that the NBC contract then had a 30-year (as plaintiff now argues), or even an indefinite life, he would have valued such contracts respectively over 8- and 10-year periods. The use of the 10-year period for the NBC contract, he explained, was because a buyer would seek to recover his investment in the television station within that period of time, as was said to be usual in the industry.
Based on 8 years for the ABC contract and 10 years for the NBC contract, he calculated that such contracts had a total value of $2,194,000 in 1959. In doing so, he took the 1958 television network revenues of WSOC-TV ($307,379 from NBC and $198,521 from ABC), the basis of his appraisal in 1959, and by increasing the 1958 network revenues from each network at the rate of 6.7 percent per year, he arrived at the amount of the expected ABC revenues for the next 8 years, and at the amount of the expected NBC revenues for the next 10 years. He then discounted such future earnings, as to each network, on an annuity ¡basis to arrive at separate values for the network contracts, and then added these two discount values to reach his total appraised amount for both contracts as of 1959.
In allocating the total appraised amount to the two network contracts, he considered such factors as WSOC-TV’s opportunity to exert leverage on each of the two networks for better station rates on the basis of competition for the station’s time, increased revenues to be derived from having both networks, improved station programming because of choice between competing programs of the two networks on the basis of relative popularity, and the avoidance of local program expense by maximum use of the network programs of both networks to fill the station time.
[604] Taking these factors into consideration, Mr. Gross concluded that the NBC contract, with the programs of that network being the more popular, was worth more in 1959 to WSOC-TV than the ABC contract. He allocated 55 percent of the total value of the television network affiliation contracts to the NBC contract and 45 percent to ABC.
No weight is given to the fair market values of the television network affiliations contracts reached by Mr. Gross in his 1959 appraisal, because of his mistaken assumption as to the lives of such contracts, but careful consideration is given to his 1971 appraisal, in the light of all of the evidence relating to profitability of operations of WSOC-TV.
IV
In summary, it is concluded that the total cost basis of Carolina in the sum of $6,719,696 for all assets acquired by Carolina upon liquidation of WSOC company as of June 1, 1959, was allocable as of that date to the various assets involved, as follows:
Cash_ $193,122.00
Accounts receivable- 231,348.00
A11 other tangible assets_ 2, 698, 964. 00
Transmitter site lease_ 84, 076. 00
Film contracts_ 209,917.00
NBC television network affiliation contract_ 1,288, 663.91
ABC television network affiliation contract_ 859,109.94
F.CO television license_ 1,156,495.15
Total cost basis- $6, 719, 696
Since plaintiffs are entitled to additional depreciation and amortization deductions over and above those allowed by the Internal Revenue Service for the taxable years in issue, it is concluded that plaintiffs are entitled to recover, with the amounts of recovery to be determined in further proceedings under Rule 131 (c).
FINDINGS oe Fact
The court, having considered the evidence, the decision and findings of Trial Judge Roald A. Hogenson, and the [605] briefs and arguments of counsel, makes findings of fact as follows:
1. Miami Valley Broadcasting Corporation (Miami Valley) is and was an Ohio corporation, based at Dayton, Ohio.
Carolina Broadcasting Company (Carolina) is and was a Delaware corporation, based at Charlotte, North Carolina.
2. Miami Valley and Carolina filed consolidated Federal income tax returns for calendar years 1959, 1960 and 1961, and Carolina filed its separate Federal income tax return for calendar year 1962. Both corporations used the accrual method of accounting. The amounts of tax shown on such returns were timely paid.
3. Carolina is and was a wholly owned subsidiary of Miami Valley. Miami Valley is and was a wholly owned subsidiary of Cox Broadcasting Corporation (Cox Broadcasting).
4. Cox Broadcasting is one of the largest group broadcasting organizations in the country. Directly and through subsidiaries, it owns and operates television stations in Atlanta, Georgia; Charlotte, North Carolina; Dayton, Ohio; Pittsburgh, Pennsylvania; and Oakland-San Francisco, California; and AM and FM radio stations at Atlanta, Dayton and Miami, Florida.
Cox Broadcasting also owns 58 percent of the stock of Cox Cable Communications, Inc. (Cox Cable). Cox Cable directly or indirectly operates community antenna television (CATV) systems in California, Florida, Georgia, Illinois, Indiana, Massachusetts, Michigan, New York, Oregon, Pennsylvania, Texas, Vermont and Washington. Cox Cable also owns interests in CATV systems in Atlanta, Georgia; Columbus, Indiana ; and Toledo, Ohio. In terms of the number of subscribers, Cox Cable is the second largest CATV operator in the country.
In 1967, Cox Broadcasting acquired all of the stock of Bing Crosby Productions, Inc., a producer of motion pictures and television programs. Cox Broadcasting is also engaged in the technical publishing, auto auction and data [606] processing businesses. Commencing in 1964, its common stock bas been traded on the New York Stock Exchange.
5. On February 12, 1959, Carolina executed an agreement for the acquisition of all of the outstanding stock of WSOC Broadcasting Company (WSOC company) for an agreed price of $5,600,000. WSOC company was a corporation which owned and operated radio and television stations WSOC-AM, FM and TV in Charlotte, North Carolina. The stockholders of WSOC company were, of course, the sellers of the entire business of that company.
After obtaining the required approval of the Federal Communications Commission (FCC), Carolina purchased all of such stock on May 14, 1959, at the previously agreed price.
Effective June 1, 1959, WSOC company was liquidated in accordance with the provisions of 26 U.S.C. §§ 332 and 334 (b) (2), and all of its assets were distributed to and all of its liabilities ($1,119,696) assumed by Carolina. Carolina then directly owned and operated stations WSOC-AM, FM and TV.
On June 1, 1959, Carolina had a total basis of $6,295,226 in the assets received from WSOC company, exclusive of cash and accounts receivable.
6. Before the execution of the stock purchase agreement, plaintiffs (Miami Valley and Carolina) received from Howard S. Frazier, Inc. (Frazier) a preliminary Appraisal Report of stations WSOC-AM, FM, and TV, dated February 11, 1959, which report was presented to, and considered by, the Boards of Directors of Miami Valley and Carolina in reaching their decision to acquire the WSOC company stock.
Prior to the liquidation of WSOC company, Carolina received from Fraizer a final Appraisal Report, dated February 12,1959, which reflected the following reproduction cost and fair market values of the WSOC company assets acquired by Carolina in the liquidation:
[607] Asset Reproduc- Fair market tion cost value
Land, 1926 North Tryon St...._. $20,540 $34,232
Land, West 23d St.... 85,990 143,311
Land, improvements, West 23d St_ 1,364 2,257
Radio studio and office building, 1925 North Tryon St_ 64,838 108,059
TV transmitter building___ 39,219 66,362
Storage building_____ 3,127 6,211
TV studio building, West 23d St__ 619,428 1,032,339
Shop and storage building, West 23d St_ 22,970 38,282
AM transmitter equipment_____ 4,807 8,011
FM transmitter equipment...... 26,787 44,643
TV transmitter equipment... 264,036 423,376
AM and FM radiation system...... 33,749 66,248
TV radiating equipment___ 69,846 116,406
TV tower.. 220,391 367,304
AM and FM studio equipment_ 34,961 68,266
TV studio equipment_ 448,109 746,818
TV test equipment_ 25,486 42,475
Tools and shop equipment__ 4,312 7,186
Furniture and fixtures, 1925 North Tryon St__ 28,103 46,836
Furniture and fixtures, West 23d St., and transmitter building.. 70,292 117,149
Automobiles_____ 6,707 11,178
Photographic equipment___ 29,162 48,686
AM and FM program production supplies___ 7,374 12,290
TV program production supplies__ 37,424 62,371
Leasehold improvements at TV transmitter_ 3,448 6,746
Film contracts__ 209,917 209,917
Tubes and parts inventory_ 16,622 16,622
NBC network TV contract_ 665,990 665,990
ABC network TV contract_ 471,476 471,476
NB C network radio contract_____ 16,966 16,966
Transmitter site lease___ 85,629 86,629
FCC licenses_ 1,600,000 1,000,000
Total. 4,628,049 6,069,539
7. Exclusive of the intangible assets (film contracts, television and radio network affiliation contracts, transmitter site lease, and tbe FCC licenses), the rest of the assets listed in the foregoing table had individual reproduction costs on May 31,1959, as shown in such table, and the total of the reproduction costs of such tangible assets was $2,178,072.
The reproduction costs of such tangible assets included catalogue prices, labor, freight, sales tax and supervision, but did not contain any element of increase in value because such assets were parts of an assembled and operating plant. Frazier’s appraisal of the fair market values of such assets exceeded their reproduction costs on the grounds that a purchaser would pay a premium for an assembled and operating plant, which Fraizer prorated to the components of the plant.
[608] Other than the assets, both tangible and intangible, mentioned in the foregoing table, the only other assets received by Carolina from WSOC company were the items of cash and accounts receivable mentioned in finding 8.
8. On CaroKna’s books and for Federal income tax purposes, the assets acquired in the liquidation of WSOC company were then assigned a total cost basis in accordance with 26U.S.C. § 334(b) (2) as follows:
Purchase price of stock-$5, 600, 000
Liabilities assumed_1,119, 696
Total adjusted basis of stock to be allocated to assets _6,719, 696
This total cost basis in the WSOC company stock was at the outset allocated by Carolina to the assets in accordance with the fair market values set forth in the table in finding 6, except that with respect to the following of such assets, the fair market values used in the allocation were:
Asset:
Tangible: Fair marleet value
Tubes and parts inventory_$ 13, 859
Intangible:
NBC Network TV contract_ 601,953
ABC Network TV contract_ 430,119
NBC. Network radio contract_ 14, 703
Transmitter site lease_ 84, 076
FCC licenses_ 1, 321,514
The remaining asset items (not listed in the table in finding 6) were cash in the sum of $193,122 and accounts receivable in the amount of $231,348, in which respective amounts, such assets were assigned values.
These allocated values (and the respective cost bases so determined) were used by plaintiffs in computing amortization and depreciation of tangible and intangible assets in the consolidated Federal income tax returns of Miami Valley and Carolina for taxable years 1959, 1960 and 1961, and in Carolina’s separate return for 1962.
Exclusive of the cash and accounts receivable, and also the intangible assets previously mentioned, all of the other [609] assets were tangible, and as to them, Carolina made alloca-' tions in the total sum of $3,617,799. To the same tangible assets, the Internal Revenue allowed allocations in the total sum of $2,176,309, using as to each item its reproduction cost figure set forth in the table in finding 6, except that as to the item of tubes and parts, it used the $13,859 figure allocated by Carolina.
9.During the year 1964, Carolina determined that its original allocation of its basis in the WSOC company stock to the television network affiliation contracts was erroneous. The following reallocation was then made:
NBC TV affiliation contract_$1,160,075
ABC TV affiliation contract-•- 822.960
10. On September 1, 1960, Carolina acquired the FCC license for AM radio station WIST (930 kc), Charlotte, North Carolina, along with certain tangible and intangible assets including, but not limited to, land, buildings, transmitting and radiation equipment, studio and other equipment, and a national sales representative contract with Peters, Griffin, Woodward, Inc. The total purchase price for these assets was $507,500.
11. On September 1, 1960, Carolina sold the WSOC-AM license (1240 kc) along with certain equipment related thereto, including the transmitting equipment and certain property acquired with the WIST-AM license, for a total price of $200,000. At that time Carolina abandoned certain other equipment which it had acquired upon the liquidation of the WSOC company.
On September 1, 1960, the call letters, WIST, assigned to the 930 kc frequency in Charlotte were changed to WSOC.
12. On March 12, 1963, as to taxable year 1959, and on July 23,1963, as to taxable years 1960 and 1961, the Internal Revenue Service issued notices of deficiency to Miami Valley and Carolina, determining that additional Federal income tax was owing for those years in the respective sums of $130,622. 83, $217,951.60 and $215,485.60.
[610] On November 24,1964, as to taxable year 1962, the Internal Eevenue Service issued a Revenue Agent’s Report to Carolina, determining that $65,299.50 in additional Federal income tax was owing for that year.
13. In the deficiency notices and agent’s report, the Internal Revenue Service determined that Carolina had unallowable deductions and additional taxable income, inter alia, as follows:
1959:
Amortization oí francMses and license-$102, 788.00
Amortization of network contracts- 150, 633.00
Depreciation _ 85,168. 59
Amortization, program and production supplies- 5, 814.28
Doss on sale, furniture and fixtures- 278.25
1960:
Depreciation _ 134, 778. 53
Amortization_ 271,618. 33
Capital gain- 20, 616. 36
1961:
Loss on property other than capital assets- 186.25
Depreciation _ 116, 588.97
Amortization_ 281, 899. 33
1962:
Depreciation_ 102,253.20
Amortization_ 17,818. 06
Loss on sale of fixed assets- 643. 03
14. These disallowed deductions and resulting additional taxable income were based upon determinations by the Internal Revenue Service as follows:
(a) In allocating Carolina’s cost basis in the WSOC company stock to the assets acquired upon liquidation of WSOC company, certain assets so acquired by Carolina should be assigned the following useful lives and the following cost bases which in each instance is equal to the respective component reproduction cost, as follows:
[611] Asset Useful Basis life (years)
Land improvements. West 23d St. — - $1,354 10
Badio studio and office building, 1925 North Tryon St. 64,838 25
TV transmitter building. 39,219 25
Storage building. 3,127 25
TV studio building, West 23d St. 619,428 25
Shop and storage building, West 23d St. 22,970 25
AM transmitter equipment.. 4,807 10
FM transmitter equipment. 26,787 10
TV transmitter equipment. 254,036 10
AM and FM radiation system. 33,749 15
TV radiating equipment. 69,846 15
TV tower. 220,391 16
AM and FM studio equipment. 34,961 10
TV studio equipment.. — _ 448,109 10
TV test equipment_ 25,486 10
Tools and shop equipment. 4,312 10
Furniture and fixtures, 1925 North Tryon St... 28,103 5
Furniture and fixtures, West 23d St. 70,292 5
Automobiles...-.-. 6,707
1953 Plymouth station wagon — . 835 5
1954 Ford station wagon. 864 5
1954 Ford station wagon....-. 864 5
1955 Ford station wagon.. 1,278 5
1958 Ford 4-door sedan.... 2,866 5
Photographic equipment. 29,152 10
AM and FM program production supplies.-. 7,374 3
TV program production supplies. 37,424 3
Leasehold improvements at TV transmitter___- 3,448 10
(b) Radio and television licenses issued by FCC and acquired by Carolina on the liquidation of WSOC company are not subject to an allowance for depreciation or amortization.
(c) Network affiliation contracts acquired by Carolina upon liquidation of WSOC company are not subject to an allowance for depreciation or amortization.
(d) The national representative contract acquired by Carolina in connection with the FCC license for AM radio station WIST (930 kc) is not subject to an allowance for depreciation or amortization.
15. The Internal Revenue Service did not question the basis allocated by Carolina to the film contracts, the transmitter site lease or the tubes and parts inventory, nor did it disallow deductions for depreciation claimed by Carolina with respect to tangible assets acquired in connection with the FCC license for station WIST (930 kc).
16. The alleged deficiencies in tax, $130,622.83 for 1959, $217,951.60 for 1960, $215,485.60 for 1961, and $65,299.50 for 1962, together with interest thereon, were paid by plaintiffs.
[612]*61217.Miami Valley and Carolina filed timely claims for refund of Federal income tax and interest for the taxable years in dispute, as follows:
Year Tax Deficiency
overpayment interest
$130,622.83 $26,051.20
1960 217.961.60 33,964.05
1961 216.486.60 20,717.09
1962 214,619.23 6,755.37
Such claims were denied by the Internal Revenue Service, and plaintiffs timely filed their petition herein, alleging grounds for recovery asserted in their claims for refund.
18. Except for the issues raised herein and in plaintiffs’ claims for refund, plaintiffs’ correct taxable income and Federal income tax liability for the years 1959, 1960, 1961 and 1962 are properly reflected by their Federal income tax returns and adjustments thereto previously made.
19. Because exclusive use of a given broadcasting frequency is necessary in the area in which the signal is received to prevent electrical interference between stations, it is necessary that radio and television broadcast stations operate on assigned frequencies and channels. The FCC, to which Congress has delegated authority over use of the electromagnetic spectrum, has been charged with the responsibility of developing a nationwide competitive broadcasting system. There are numerous interests seeking to use the electromagnetic spectrum, and the FCC has allocated only a finite amount thereof to television, establishing 12 very high frequency (VHF) channels, numbered 2 to 18, and 70 ultra high frequency (UI-IF) channels, numbered 14 to 83. Because of public policy and technical limitations within a given market, there are only a limited number of channels, particularly VHF channels, available for television.
Allocated channels are assigned to particular applicants by the granting by FCC of a construction permit and then a license. Until 1955, the license was generally for a 1-year term. Since 1955, the usual license term has been 3 years.
, 20. Generally, the first step in obtaining a commercial FCC television or radio broadcast license is the selection of an available interference-free or assigned frequency or channel. [613] The next step is the completion and filing of an application for an FCC construction permit. No construction is permitted prior to issuance of such permit. After the grant of such permit, which may or may not have involved an FCC hearing, the permittee must begin construction of his facility within 60 days, although this period is frequently waived by the FCC. Upon completion of construction and testing, the applicant applies for issuance of the FCC license and for program test authority. Generally, a station can be on the air within 2 to 4 weeks after final testing. Television station licenses may also be obtained by transfer from an existing licensee, subject to prior FCC approval.
21. Because of its compelling nature in attraction of audiences and the holding of attention of viewers, television is a preferred advertising medium, and commercial television in the United States is supported by advertisers who purchase time and other services of television stations so that commercial messages may be presented to the television audience.
There are three broad classes of television advertising, known in the industry as network, national spot, and local. The term “spot” refers to placing advertising with selected individual stations. An advertiser desiring nationwide advertising coverage may obtain same either by purchasing-station time through a national network or by dealing with selected stations individually through station representatives. National and regional advertisers may also select stations in specific areas in which coverage is desired. Local advertisers do not use networks but purchase program time or adjacencies from local stations.
Television advertising has taken various forms. An advertiser may present a program, together with a commercial message, on time purchased from the station. Several advertisers may purchase participating announcements, which are interspersed throughout an individual program. An advertiser may purchase an adjacency, an announcement (generally of 8,20 or 60 seconds in duration) presented in the interval between programs, with the size of the audience which can be expected to view such commercial being determined by the audience for the programs which precede and/or follow the announcement.
[614]*61422. The only commodity which a television station has to offer to an advertiser is its audience. As an advertising medium, television’s value is measured, like that of other media, by the size of the audience. Although the total audience of a given station depends upon a number of factors, including the popularity of the programs presented, the number of sets which can receive the station’s signal, the number of other stations available to the area, the quality of program continuity achieved by the station and its competitors, and the promotional activities in which the station and its competitors engage, in the last analysis, a television station’s audience is attracted by its programs. As between television stations with equivalent signal coverage areas, the station with the more popular programs will have the larger audience.
23. Television programming has, from the outset, been very expensive to produce. Because of high costs, television can be an economical and effective advertising medium only if it attracts large viewing audiences so that the cost per thousand viewers (cost per thousand) is minimized. There are two basic sources of programs: Network programs and locally-originated ones. The latter consists of old movies, public service shows, syndicated independent programs, reruns of network programs and local live originations.
24. During the period 1959 through 1962, and thereafter, the major source of high-level competitive programming for local stations was the three existing national commercial television networks, which are and were: Columbia Broadcasting System, Inc. (CBS); National Broadcasting Company, Inc. (NBC) ; and American Broadcasting Company, Inc. (ABC).
Although during the 1960’s all three networks were generally competitive in the ratings of prime time programs, the CBS television network accounted for approximately 40 percent of all network revenue. Its programs were oriented more toward the rural and small town audience than were those of the NBC television network.
As between the ABC and NBC television networks, NBC has been stronger than ABC in terms of overall program popularity and network service.
[615] The only other national commercial television network ever to exist was DuMont which terminated in 1955.
25. The reason for network pre-eminence in programming stems from the fact that a network is able to spend vastly more for programs than individual stations because it can spread its costs over a much wider base. Thus, a network and the advertiser can incur high costs for a single program and yet have a low cost per thousand, the program being broadcast over a network of about 150 stations.
In these circumstances, the networks have been able to produce expensive live shows which have been beyond the reach of single stations. Also, the networks have been able to and do purchase the most attractive and expensive film programs and feature films.
For an individual station, whether independent or network-affiliated, to broadcast a local program in competition with a network show of another station, such local program has to be sufficiently popular to attract an audience comparable in size to that of the competing network program.
Local programming involves substantial expense to the local station, whereas network programming costs are absorbed by the network. During the period 1959-1967, the average cost of a locally-originated half-hour program in the Charlotte, North Carolina, market, suitable for use in prime time, was approximately $200, and such local programs were generally not equal in popularity to the network programs available to WSOC-TV.
26. Traditionally, network programs have been most significant during the evening hours (prime time) when potential audiences are greatest, advertisers’ interest the keenest, and time rates the highest. The independent station, broadcasting the type of programs that are available within the limits of its budget has not, as a general rule, been able to compete successfully for the viewing audience against network programs in prime time. As a result, prime time audience and advertising have been dominated by network-affiliated stations, with independents being only an insubstantial factor. In only the largest markets, such as New York City, Chicago, San Francisco, and Washington, D.C., have independent-television stations been able to attract substantial audiences, [616] sometimes exceeding on an average basis those of one of the network-affiliated stations.
27. The advertising revenues of a network-affiliated station are divided into the primary categories of network revenues and non-network revenues with the station having a schedule of time rates for network programs and a separate schedule of non-network rates for national spot and local advertising. In the case of network revenues, the network in the first instance is paid by the advertiser (invariably a national advertiser) for the exposure of the program and commercial message over a line-up of individual stations affiliated with the network. The total paid by the advertiser is based upon the aggregate of the network time rates of individual stations for broadcasting the program and commercial message, plus the cost of the program, if it is furnished by the network. Assuming that the network program is fully sponsored, the network then pays the individual station an agreed percentage of its network time rate.
28. The standard network practice has been to pay affiliated stations approximately 80 or 33ys percent of their network time rate. However, due to network practices in demanding “free” time to offset the network cost of telephone (AT&T) line charges for video transmission (typically 24 hours per month), the effective rate has frequently been less than 30 percent.
29. With respect to non-network revenues, an affiliated station sells directly to advertisers short-time periods (ad-jacencies) retained by it during the break between network programs or between segments of larger network programs. Because the revenue derived from this type of advertising is dependent upon the quality of the station’s programming, most of the affiliate’s non-network advertising, particularly national spot advertising, is sold to be contiguous to particular network programs. Because the station is entitled to 100 percent of these revenues (after commissions), such adjacencies are easily sold at rates that are effectively higher than the station’s effective network time rate. As a result, the affiliated station’s revenue from national spot and local advertising normally exceeds its network revenue.
[617] In. November 1959, the FOC adopted regulations prohibiting networks from engaging in the representation of television stations in the sale of national spot advertising.
30. Because a television station normally receives only a percentage of its hourly rate from the network, it could thus expect to gross more revenue from broadcasting non-network programs, if these programs were equal in popularity to the network programs. However, non-network advertising is subject to agency and representative commissions of approximately 20 percent. In addition, an unaffiliated local station and an affiliate broadcasting non-network program must also incur the expense of production and promotion whether or not the related advertising time is completely sold. As a general rule, non-network programs, at least in prime time, have not attracted audiences of the same size as those attracted by network programs.
During the period 1960-1970, WSOC-TV’s advertising rates for non-network programs were approximately 50 percent of its rates for network adjacencies. Particularly during prime time, total revenues from non-network programs, after deduction of program costs, have not generally compared with total revenues derived from network programming, i.e., network compensation plus revenues from sales of adjacencies to network programs. Although some independent stations now compete quite successfully outside of prime time, profits from non-network programs have generally been less than those realized from network programs.
31. Generally, in any market where the number of stations is the same or greater than the number of networks, and where there are at least three competitive stations, each of the three television networks enters into an exclusive affiliation contract with one station in that market, and that station, in turn, affiliates only with that network. This is a standard primary affiliation contract for which the station does not pay the network. Such contract provides inter alia that: (1) the network, at its own expense, will provide programming to the station; (2) the network promises the station to offer it first call for all programs broadcast in that commtinity; and [618] (8) tibe network agrees to pay the station a specified percentage of the station’s network time rate paid by the advertiser.
Prior to September 10, 1963, the station would agree to a so-called option time arrangement whereby the station would promise (with certain exceptions) to broadcast during nine specified hours of the broadcast day (which included the primei evening hours from 7:30 p.m. to 10:30 p.m.) all sponsored programs offered by the network. This option time arrangement was eliminated by the FCC, effective September 10,1963, to foster competition within the commercial television industry.
On May 4,1970, the FCC adopted regulations prohibiting television stations in each of the 50 top markets where there existed three or more television stations from broadcasting-more than 3 hours of network programming during the hours from 7:00 p.m. to 11:00 p.m.
32. Upon the liquidation of WSOC company, effective June 1, 1959, Carolina acquired a well-designed, completed, tested and fully operational physical plant consisting of all the land, buildings and technical installations, equipment and supplies necessary for the operation of stations WSOC-AM, FM and TV in Charlotte, North Carolina.
33. Because of the intricate electronic components involved, the construction of a broadcasting facility, particularly a television station, is difficult and time consuming. The television industry was in an affluent period in 1959, there was considerable demand for broadcasting equipment, and some delays were reasonably to be expected. A plant such as that acquired by Carolina on June 1, 1959, would take approximately 2 years to complete, absent lengthy delays.
34. The reproduction costs of the individual tangible assets received by Carolina from WSOC company are not in dispute, and as of May 31, 1959, were in the amounts determined by Carolina’s appraisal company (Frazier) as set forth in finding 6, totaling $2,178,072, as stated in finding 7.
Frazier assessed the fair market values .of the tangible assets by increases to the reproduction costs on a prorated basis in two ways: (1) Additional costs which would have been incurred in guaarnteed-performance construction of a [619] broadcast facility like the WSOC plant; and (2) financial benefit accruing to Carolina from the immediate use of the fully completed and tested WSOC facility.
35. Mr. George W. Moore, vice president of Hamilton, Landis and Associates, brokers and appraisers of broadcasting facilities, was retained in 1970 by defendant to appraise the tangible assets of WSOC-TV as of June 1, 1959. In accordance with defendant’s instructions, he limited his appraisal to the tangible television assets. Accordingly, he did not appraise the following tangible assets:
Land, 1925 North Tryon Street
Radio Studio & Office Building
AM Transmitter Equipment
FM Transmitter Equipment
AM and FM Radiation System
AM and FM Studio Equipment
Furniture & Fixtures, 1925 North Tryon Street
AM and FM Program Supplies
With respect to all of the other tangible assets listed in the table in finding 6, Mr. Moore assigned the same reproduction cost to each of them, as had been determined by Frazier in its appraisal of February 12, 1959. He included allowances for labor, freight, sales tax and supervision. The total of his reproduction costs of such assets was $1,956,913.
As to each of the assets appraised by him, Mr. Moore then added an increment in value of 25 percent of its reproduction cost, except that no increase was allowed as to the automobiles, photographic equipment or the land. Such increment was considered by him to be going concern value, de-' fined as the money which would have b,een lost if the television facility were not available for operations.
Mr. Moore arrived at the 25 percent increment on the basis that WSOC-TV experienced a cash flow of $372,090 in its television operations in 1958, that construction and assembly of the WSOC-TV plant would have required 18 to 20 months, and that about $600,000 of cash flow would have been lost during such construction period.
[620] His opinion was that the values of the tangible television assets, when integrated into a completed and fully operational plant, were as follows:
Land, West 23d Street- $85, 990
TV transmitter building- 45,102
Storage building- 3,596
TV studio building- 774,285
Shop and storage building- 28,713
TV transmitter equipment- 317,545
TV radiating equipment_ 87,308
TV tower_ 275,489
TV studio equipment_ 560,136
TV test equipment_ 31, 858
Tools and shop equipment- 5,390
Furniture and fixtures_ 87, 865
Land improvements, West 23d Street- 1, 693
¡Automobiles_ 6,>707
TV program production supplies- 46,780
Leasehold improvements at TV transmitter_ 4, 310
Tubes and parts inventory_ 19,527
Photographic equipment_ 29,152
Total_ 2,411,446
The foregoing values represent reproduction costs plus 25 percent thereof, except that no increment was allowed to the reproduction costs of the land, automobiles, or the photographic equipment.
Mr. Moore stated in his appraisal report to defendant that the WSOC-TV plant was well designed and constructed, and that a minimum of 2 years would have been required to assemble the component parts, complete testing and obtain FCC approval for operations.
It was Mr. Moore’s opinion that contractors would have assembled the pertinent tangible assets for about 10 percent, not to exceed 15 percent, of their reproduction costs.
36. Mr. Arthur H. Holt, president of Holt Corporation, a company engaged in broadcast station consulting, brokerage and appraisals, was retained by defendant to appraise the radio assets of WSOC-AM and FM as of June 1, 1959. His opinion was that the NBC radio network affiliation contract had a value of $1,000, and that the FCC radio licenses had a value of $50,000. As to the tangible radio assets, his determinations with respect to their individual reproduction [621] costs, percentage increments thereto, and resulting values were as follows:
Tangible radio assets Reproduction Percentage Value cost increment
AM transmitter. 3,749.99 66% 6,260
I'M transmitter.._-____ 26,785.79 44,643
33,748.79 66%
studio 31,659.99 66% 62,600
equipment.-. 1» 000.00 None 1,000
Furniture and fixtures_-_ 28,103.00 None 28,103
Ford_ 2,866.00 None
Production 7,373.99 66% 12,290
and technical 2,397.00 None
106,630.00 20 127,836
1» 354.16 20
Total. 310,306.40 420,147
It is apparent from all of the evidence, that Mr. Holt mistakenly appraised the television station land instead of the radio station land, because his evaluation of land far exceeded the fair market allocation of $34,232 made to the radio station land by Carolina as of June 1, 1959, as set forth in finding 6, but approaches Carolina’s allocation of $143,311 to the television station land.
Mr. Holt otherwise used reproduction costs which approximated the agreed reproduction costs of the individual radio tangible assets, as set forth in finding 6. He described his percentage increments to the reproduction costs in terms of going concern value. However, he plainly stated that such increments were allowed because the separate assets when integrated into an operational plant have values in excess of their component replacement and reproduction costs.
37. Other than by purchase, the only way in which Carolina could have acquired a broadcasting facility such as it obtained on June 1, 1959, would have been to place a contract, or contracts, under competitive bidding, to duplicate the plant with equal performance guaranteed. Such an agreement is called a “turnkey” contract.
If, instead of purchasing a completed, tested and immediately usable broadcast plant, Carolina had determined to obtain an equivalent facility with guaranteed equal performance by entering into a turnkey contract, the cost of such a plant would have included the total of reproduction costs ($2,178,072), plus increments covering construction [622] interest and the contractor’s contingencies, overhead and profits. The cost of the WSOC-AM, FM and TV plant, if acquired on a turnkey contract basis, would have been $2,696,964.
38. The other factor considered by Frazier in determining the fair market value of the tangible assets received from WSOC company was the financial benefit derived from their immediate availability on June 1, 1959, to carry on the broadcasting operations, which financial benefit would not have been realized during the 2-year period of assembly, construction and testing of a broadcasting plant.
The financial benefit to be derived from immediate business operations was that: (1) Carolina would realize net earnings and cash flow which would be lost during the period of assembly and construction of a broadcasting plant; (2) that Carolina could increase its rate of earnings during the estimated construction period to a rate which would exceed the rate to be expected at the commencement of operations delayed to the end of the construction period; and (3) that Carolina would effect savings in unproductive overhead, such as salaries and taxes, which would be incurred during the construction period.
Plaintiff’s appraiser, Mr. Gross, calculated the financial benefit, which he ascribed to the tangible assets, on the cash flow, which he derived from Carolina’s financial statements, which would have been lost during the period of time which would have been required for assembly, construction and testing of a fully operational plant equivalent to the WSOC facility. Cash flow, as the term was used by him, was profit after taxes but before depreciation and amortization. He did not include in cash flow any amount for amortization of the network affiliation contracts, nor any additional depreciation over and above the agreed reproduction costs of the individual tangible assets. Mr. Gross increased his total reproduction cost, or turnkey value of the WSOC facility, of $2,696,964 to the sum of $3,636,783, basing such increment on his determination that Carolina’s cash flow was $751,868. during the period June 1, 1959 to December 31, 1960.
39. The financial history of operations of stations WSOC-AM, FM and TV prior to June 1,1959, reasonably supported [623] Carolina’s expectation of tlie financial benefit to be derived from purchase of the assembled and operating broadcast facility. During the year 1957, such stations earned $67,047.28 before income taxes but after provision of $11,223.56 for depreciation. During the year 1958, the first full year of combined operations, such stations earned $351,156 before income taxes but after provision of $133,473 for depreciation. For the first 5 months of 1959, such stations earned $195,353' before income taxes but after provision of $57,099 for depreciation and amortization. All of such earnings were produced by WSOC-TV.
On June 1, 1959, Carolina or any other purchaser could reasonably have anticipated that WSOC-TV’s future earnings would substantially exceed the amounts earned in the previous periods. Television revenues in the broadcast industry had shown steady increases over the years immediately preceding 1959. WSOC-TV had been on the air for 2 years as the second station in its market, and could be expected to become increasingly competitive as viewers became accustomed to it, and made antenna adjustments for better reception of its signal. On or shortly before January 1, 1959, WSOC’s television network Class A hourly rates (both NBC and ABC) had been increased from $900 to $1,100, with the station’s share 33Ys percent for both. In April 1959, WSOC’s station percentage with ABC had been increased to a minimum of 44 percent and a maximum of 54 percent depending upon the number of hours carried.
40. During the 2-year period after May 31, 1959, the operations of WSOC-AM, FM and TV produced the following earnings, exclusive of income tax, depreciation and amortization:
Last 7 months of 1959_$216,557
All of calendar year 1960_ 617, 652
First 5 months of 1961_ 839, 681
All of these earnings were contributed by WSOC-TV.
On June 1, 1959, Carolina anticipated that it would have earnings in roughly these amounts during such periods of time.
41. During the period June 1, 1959 to May 31, 1961, de[624] preciation and amortization as claimed by Carolina and as allowed by the Internal Revenue Service were as follows:
The amortization and depreciation claimed by Carolina was computed by using a cost basis of $3,617,119 for its tangible assets, determined as stated in finding 8, and also included allowances with respect to the FCC licenses and network affiliation contracts.
On June 1, 1959, expecting that total amortization and depreciation would exceed that allowed by the Internal Revenue Service, i.e., larger deductions for depreciation of tangible assets, and deductions for amortization of the ABC television network affiliation contract, Carolina could reasonably have anticipated cash flow (net after-taxearnings plus depreciation and amortization) of about $900,000 over the next 2 years.
42. Plaintiffs have failed to prove that the fair market value of the tangible assets for tax depreciation purposes was more than $2,696,964. That sum is found as the fair market value of the tangible assets.
43. With cash in the sum of $193,122 and accounts receivable in the sum of $231,348 deducted from Carolina’s total cost basis in the sum of $6,719,696, Carolina’s cost basis in all of the other assets received from WSOC company on June 1, 1959, was $6,295,226.
The parties are in agreement that the amounts allocable to two items of intangible assets, i.e., the transmitter site lease and the film contracts, were respectively $84,076 and $209,917, leaving a balance of $6,001,233 for allocation.
Since the amount of $2,696,964 is allocable to the tangible assets, as stated in finding 42, the remaining balance of the [625] cost basis is $8,304,269 to be allocated to tbe only other assets, which are the following intangibles:
NBC television network affiliation contract;
ABC television network affiliation contract;
Licenses (AM, FM, and TV) issued by the FCC; and
NBC radio network affiliation contract.
The NBC radio contract and the FCC radio licenses had minimal values, due to lack of past or prospective profitability of the radio operations. The radio contract is lumped with the NBC television network contract, and the FCC radio licenses with the FCC television license, in allocating basis to the three remaining intangibles, i.e., the two television contracts and the FCC television license.
44. In appraising on February 12, 1959, the WSOC company assets in the total amount of $6,069,539, exclusive of cash and accounts receivable, Frazier proceeded within the general framework of the $5,600,000 price which plaintiffs and the sellers h'ad already agreed upon for acquisition of all of the WSOC company stock. Obviously such price had not been reached in disregard of the substantial liabilities of WSOC company.
In its appraisal process, Frazier first determined the reproduction cost of each tangible asset, and then added pro rata to each of them, the overall premium which a purchaser would be willing to pay for the immediate use of all of the tangible assets as components of an operating facility. Frazier then appraised the values of certain intangible assets, i.e., the transmitter site lease, the film contracts, and the network affiliation contracts. By the residual method of valuation, the balance of the total valuation of $6,069,539 was then allocated to the AM, FM and TV licenses issued by the FCC.
45. During the years 1959-1962, and for substantial periods before and after that time, there were only two competitive commercial television stations operating in the Charlotte, North Carolina market. These were both VHF stations, being WBTV (Channel 3) and subject station, WSOC-TV (Channel).
[626] Only three other television stations have ever been allocated to the Charlotte market by the FCC, two commercial UHF stations, WCCB-TV (Channel 18) and WCTU-TV (Channel 36), and one educational UHF station, WTVI (Channel 42).
46. WBTV was the first television station to broadcast in the Charlotte market. It commenced operations in July 1949. Until 1957, when subject station, WSOC-TV, began broadcasting, WBTV maintained network affiliations with all three television networks, CBS, NBC and ABC, but thereafter has been exclusive^ affiliated with CBS.
47. Subject station, WSOC-TV (Channel 9), began broadcasting in April 1957, and immediately obtained primary affiliation contracts with both NBC 'and ABC. WSOC-TV maintained such dual affiliation until September 30, 1967, when it terminated the ABC contract, and thereafter has had primary affiliation exclusively with NBC.
48. In November 1964, UHF commercial station WCCB-TV (Channel 18) commenced operations in the Charlotte market, and has remained in continuous operation since that time. In 1967, WCCB-TV affiliated with ABC, when Carolina terminated its WSOC-TV contract with that network.
WCCB-TV had had a history of sporadic and unsuccessful operations prior to 1964. It first began broadcasting under call letters WAYS-TV in December 1953, but went off the air in March 1955. Resuming operations in September 1961 under call letters WUTV, it again suspended broadcasting in May 1963, remaining off the air until resumption of operations under call letters WCCB-TV in November 1964.
The only other commercial television station ever broadcasting in the Charlotte market was another UHF station, WCTU-TV (Channel 36), which began operations in July 1967, and has continued to the present time. WCTU-TV has operated as an independent station, unaffiliated with any network.
49. During the years in suit, the Charlotte market was rated approximately 25 in 'the FCC listing of the top 50 television markets.
50. An FCC broadcasting license, whether television or radio, has value in relation to its use in profitable, or poten[627] tially profitable operations. It can be transferred from one holder to another only with the approval of the FCC which administers a stringent policy 'against trafficking in broadcast licenses. Such a license has little commercial value in unprofitable operations. Some VHF television licenses have been abandoned in the early days of television. At the present time, a number of TJHF television allocations are unassigned, and some assigned and authorized TJHF stations are not on the air.
In the circumstances existing in the Charlotte market, the WSOC television license had substantial value, 'because the WSOC operations had been and were reasonably expected to be profitable, but such license did not have overwhelming value merely because the WSOC operations would not have existed without the license.
WSOC-TV expended approximately $150,000 to obtain its FCC television broadcasting license prior to the start of its operations in 1957.
51. It was generally recognized in the industry that the most valuable asset of a television station, in all but the very largest markets, was its network affiliation contract. Data in evidence, relating to a number of markets having-four television stations, establish that in the years 1960 and 1962, independent VHF television stations with audiences comparable in size to that of WSOC-TV suffered substantial losses while network-affiliated VHF stations with comparable audiences realized substantial earnings.
It was well known in 1959 that in a relatively small market such as Charlotte, where there was no substantial source of local programs, an independent station competing with affiliated stations would find it difficult, if not impossible, to survive.
The profitability of the WSOC-TV operations, established as of June 1,1959, and reasonably expected to improve, was due to its television network affiliations. Its most valuable intangible assets were its NBC and ABC television network affiliation contracts.
With WBTV exclusively affiliated with CBS, and with no other competitive station in the Charlotte market, WSOC-TV was assured of affiliations with NBC and ABC for the asking [628] and without cost in 1959. Obviously the sellers of WSOC-TV would not have operated their television broadcasting business without Obtaining such readily available affiliations, and they regarded such affiliations as valuable assets of their business. The actual existence of such affiliations, and their ready availability, figured prominently in the decision of the buyer to purchase, and in the fixing of the price to be paid, from the standpoints of both the sellers and buyers. It cannot be found that such affiliations had little or no value, because they could have been readily obtained by the buyers without cost, assuming unrealistically that they did not exist at the time of the sales agreement in 1959.
52. Carolina’s basic reason for negotiating for the purchase of all of the stock of WSO'C company was because the Charlotte market had only two television stations, both VHF, with WSOC-TV advantaged by affiliations with both NBC and ABC. The president of Cox Broadcasting was the principal negotiator for Carolina, and that parent company had previously experienced highly profitable operation of a dually affiliated VHF television station at Dayton, Ohio, in a market structured competitively like the Charlotte market.
In its negotiations, Carolina considered the WSOC-TV network affiliations to be the most valuable of the intangible assets of the WSO'C company, and was interested in WSOC-TV primarily because of the availability, as well as the actual existence, of such -affiliations, and because WSOC-TV was in a position to put leverage on both NBC and ABC to obtain favorable network time rates and station percentages.
Carolina would not have acquired station WSOC-TV without its having at least one television network affiliation actually in existence, or available and assured.
Carolina knew that as long as WBTV remained exclusively affiliated with CBS, and as long as there was no other competitive station in the Charlotte market, NBC and ABC would agree to renew their television network affiliation agreements with WSOC-TV as the prior agreements expired.
53. During the years 1960 through 1964, even with its two primary affiliations, WSOC-TV attracted on -the average about one-third of the Charlotte market audience, with the balance of the audience held by WBTV, a station which had [629] been on the air since 1949 and which was the dominant station in the market. The relative audience strengths of these two stations remained about the same in the years 1965 through 1970. However, commencing in March 1965, UHF station WCCB-TV began to capture small percentages of the overall audience, increasing from 1.1 percent to 1.9 percent by March 1967. After WCCB-TV had acquired its affiliation with the ABC television network in 1967, its share of the market rose from 6.4 percent in November 1967 to 12.7 percent in November 1970. By the latter date, the balance of the Charlotte market audience was held 58.1 percent by WBTV and 29.2 percent by subject station, WSOC-TV.
In June 1959, Carolina reasonably anticipated that WSOC-TV would continue to have its dual affiliation with the NBC and ABC television networks for about 10 years, by which time a third television station would become sufficiently established in the Charlotte market to attract either of such networks for an exclusive affiliation. WSOC-TV reasonably expected that within 10 years it would seek and obtain exclusive affiliation with NBC, the stronger of the two television networks, leaving ABC to affiliate with the third television station in the market. As previously stated, these expectations became fact in 1967.
54. In its appraisal of February 12, 1959, Frazier determined values of the NBC and ABC television network affiliation contracts held by WSOC-TV, in the respective amounts of $665,990 and $471,476. The NBC contract then had a term ending April 28,1961, and Frazier considered only one 2-year renewal to April 28,1963, to be expected. The ABC contract then had a term ending September 1, 1959, and Frazier expected only two 2-year renewals to September 1, 1963. Any additional renewals were considered by Frazier to be speculative.
Computing from January 1, 1959, with respect to both contracts, Frazier thus assumed that the NBC contract would last for only 52 months, and that the ABC contract would last for only 57 months.
Tn the year 1958, net revenues from these two networks amounted to $505,990 in the WSOC-TV operations, with $307,379 produced by NBC, and $198,521 by ABC. Using the [630] monthly average during 1958 of the network revenues of each network, and expecting 'that such network revenues would continue to be at least equal to the 1958 monthly average, and on the basis that the profit to WSOC-TV would be not less than 50 percent of the 1958 revenues projected, Frazier appraised each network contract at 50 percent of such revenues thus expected during the assigned life of such contract. Thus, Frazier placed a value of $665,990 on the NBC contract for its 52-month period, and a value of $471,476 on the ABC contract for its 57-month period.
55. Frazier’s appraiser in 1959 was Horace W. Gross. By the time of the trial of this case in 1971, he had become a vice president of that company, the name of which had become Frazier, Gross & Company, Inc.
In his testimony before this court, Mr. Gross stated that if he had assumed in 1959 that the ABC contract then had a life of 8 years and that the NBC contract then had a 30-year or indefinite life, he would have valued such contracts respectively over 8 and 10-year periods. The use of the 10-year period for the NBC contract, he explained, was because a buyer would seek to recover 'his investment in the television station within that period of time, as was said to be usual in the industry.
Based on 8 years for the ABC contract and 10 years for the NBC contract, he calculated that such contracts had a total value of $2,194,000 in 1959. In doing so, he took the 1958 television network revenues of WSOC-TV, the basis of his original appraisal, and by increasing the 1958 network revenues from each network at the rate of 6.7 percent per year, he arrived at the amount of the expected ABC revenues for the next 8 years, and at the amount of the expected NBC revenues for the next 10 years. He then discounted such future earnings, as to each network, on an annuity basis to arrive at separate values for the network contracts, and then added these two discount values to reach his total appraised amount for both contracts as of 1959.
In allocating the total appraised amount to the two network contracts, he considered such factors as WSOC-TV’s opportunity to exert leverage on each of the two networks [631] for better station rates on the basis of competition for the station’s time, increased revenues to be derived from having both networks, improved station programming because of choice between competing programs of the two networks on the basis of relative popularity, and the avoidance of local program expense by maximum use of the network programs of both networks to fill the station time.
Taking these factors into consideration, Mr. Gross concluded that the NBC contract, with the programs of that network being the more popular, was worth more in 1959 to WSOC-TV than the ABC contract. He allocated 55 percent of the total value of the television network affiliation contracts to the NBC contract and 45 percent to ABC.
56. On June 1,1959, Carolina reasonably anticipated that because of the competition between NBC and ABC for the program time of WSOC-TV, it would be able to negotiate compensation rates and station percentages substantially more favorable than could have been expected with a single television network affiliation.
57. During the years 1957-1967, WSOC-TV by agreements with the ABC and NBC television networks had Class A hourly rates (the amounts paid by an advertiser to the network to broadcast a program during the evening hours between 6:00 and 11:00 p.m.) and station percentage shares of such rates, as follows:
ABO (no free hours given by station)
(1) Network Class A hourly rates:
Period,: Amount
Apr. 28, 1957 to Nov. 14, 1958_$ 900
Nov. 15, 1958 to Feb. 28, 1961_ 1,100
Mar. 1, 1961 to Oct. 31, 1962_ 1,200
Nov. 1, 1962 to Sept. 30, 1963_ 1,350
Oct. 1, 1963 to Jan. 31, 1965_ 1,450
Feb. 1, 1965 to Sept. 30, 1967_ 1, 500
(2) Station percentage (no hours waived):
Period: Percentage
Apr. 28,1957 to Apr. 5,1959— 33y3.
Apr. 6,1959 to Sept 30,1959_44 to 54 (depending upon hours cleared)
Oct. 1,1959 to Oct. 31,1960_50 Class A programs, 45 all others.
Oct. 1,1961 to Sept. 30,1967— 53.
[632] NBO (24 free hours given by station monthly to Dec. 1,1966) (1) Network Class A hourly rates:
Period,: Amount
Apr. 28,1957 to Dee. 31,1958_$ 900
Jan. 1, 1959 to Feb. 28,1961_1,100
Mar. 1, 1961 to Nov. 30, 1962_1,200
Dec. 1, 1962 to Nov. 30, 1966_1, 300
Dee. 1, 1966 to Dec. 31, 1967_1, 800
(2) Station percentage: 33%. (24 hours waived per month through Dec. 1,1966)
During the period 1959-1967, as was typical in the industry, the network prime time rates for 14-hour and 34-hour programs were respectively 60 and 40 percent of the foregoing hourly rates.
58. Mr. Ernest Clay, a vice president of Frazier, Gross & Company, Inc., who specializes in making projections of television station audiences, revenues and income, testified at the trial of this case that without the unusual bargaining power which WSOC-TV had because of its dual affiliation with ABC and NBC, WSOC-TV could have expected to have television network Class A hourly rates with ABC or NBC, as follows:
NETWORK CLASS A HOURLY RATE
In making his analysis, Mr. Clay started with the FCC listing of all television markets in 1959. He eliminated from consideration all markets having less than three stations, because the stations in such markets have unusual bargaining power with the networks. He also eliminated any market with a network owned and operated station, considering that such a market lacked free bargaining. He further eliminated ever market in which the competition was between a mix of VHF and UHF stations, considering, for example, that in a market with one VHF and two UHF stations, the VHF station has an unusual network bargaining position. He also [633] eliminated any market which was in the nature of a dual market because the stations were geographically separated to the extent that their broadcast coverage varied so much as substantially to void audience competition. He further eliminated any market in which the top station had more than double the average audience of the bottom station, considering that the dominant station had extraordinary bargaining position.
Mr. Clay then took the remaining markets, and with the use of published information concerning network rates of affiliated stations in such markets, he computed the “normal” network Class A hourly rates, above listed, which WSOC-TV could have expected without the leverage advantage of dual affiliation. Mr. Clay stated his opinion that rate reductions would not have occurred during the period of time involved, i.e., once the NBC Class A hourly rate became $1,000 in 1960, it would remain at that sum until the increase to $1,050 in 1964, which would continue to be the rate through the rest of the period of time involved.
In the type of market contemplated by Mr. Clay in his analysis the station percentage share of such rates would have been 33% percent for NBC (after 24 free hours waived per month) and 30 percent for ABC (after 22 free hours waived per month).
59. During the years 1959-1967, WSOC-TV’s total audiences, prime time audiences, and its network Class A hourly rates, and those of its competitor in the Charlotte market, WBTV, were as follows:
[634]*63460. During the years 1959-1967, WSOC-TV’s advertising revenues were as follows:
After terminating its ABC affiliation in 1967, WSOC-TV bad revenues from NBC in the total amounts of $1,199,719, $1,186,933, and $1,001,573 respectively in the years 1968,1969, and 1970, and its total local and national spot revenues were respectively $2,467,414, $2,943,819 and $3,014,782 for the same years.
61. Mr. C. M. Murphy, Business Manager and Assistant Secretary and Treasurer of Carolina, prepared an estimate as to what WSOC-TV’s television network revenues would have been in the years 1959-1967, if WSOC-TV had had a single network affiliation, namely NBC, and if the NBC compensation rates were 33% percent of the “normal” network Class A hourly rates of $1,000 during the years 1959-1963 and $1,050 during the years 1964-1967. Mr. Murphy relied on the testimony of Mr. Clay, as summarized in finding 58, for such Class A hourly rates.
For each year, Mr. Murphy took one representative week, and projected it throughout the year, to determine the total number of clock hours of NBC television programs available. He then converted the non-Class A hours into equivalent hours to be compensated at the Class A hourly rate. For example, with respect to 5 hours of Class D time, occurring between 10:00 a.m. and 11:00 a.m., Monday through Friday, compensable by the NBC formula at 40 percent of the Class A rate, he allowed 2 hours for application of the Class A rate. He also converted prime time programs which carried a premium, such as %-hour program compensable 'at 60 percent of the Class A hourly rate, into equivalent hours for applica[635] tion of the Class A hourly rate. He undertook to make all necessary conversions of clock hours.
To the total of Class A hours thus computed, he then applied the Class A hourly rate, to arrive at the gross revenues from NBC television for that year. He then reduced the gross revenues to allow for the 24 hours per month of free time given by the station. He then computed 33% percent of the adjusted network revenues as the station’s network compensation for that year.
Eepeating this process for each of the years, Mr. Murphy computed that under the assumed circumstances, WSOC-TV’s station revenues from the NBC television network would have been during the years 1959-1967, as follows:
Station compensa-Year: tion
1959— $658, 433
1960— 729, 937
1961— 785, 817
1962— 781, 860
1963— 661, 623
1964_ 728, 290
1965— 706, 748
1966— 711, 668
1967— 732, 917
As thus computed, WSOC-TV’s network compensation would have been $3,743,226 less than the total television revenues it received from ABC and NBC during the years 1959-1967, as set forth in the table in finding 60.
62. During the years 1958-1970, total television advertising revenues for the Charlotte market, with subtotals of the network, local and regional-national revenues, were as follows:
[636]*63663. During the years 1958-1970, WSOC-TV’s percentage shares of the Charlotte market network revenues, prime time audience, total revenues, and total audience, were as follows:
64. During the years 1959-4967, WSOC-TV received approximately $3,575,000 in network revenues more than it would have earned if its share of the total Charlotte market network revenues were equal to its share of the market prime time audience. WSOC-TV received approximately $2,080,-000 in total advertising revenues more than it would have received if its share of the total Charlotte market revenues were equal to its share of the total market audience.
In a given year, an increase in WSOC-TV’s network revenues translates directly into increased taxable income.
65. On June 1, 1959, Carolina also reasonably expected that WSOC-TV’s dual television network affiliations would reduce its local programming costs because of the availability and use of more network programs, and that expanded use of network programs would maximize WSOC-TV’s earnings because revenues from network programming (both network compensation and sales of adjacencies) normally exceeded revenues derived from local programming.
66. During the years 1959-1967, the NBC television network offered programs for 3% to 3.% hours per day, Monday through Friday, during the prime time hours of 6:00 p.m. to 11:00 p.m., with somewhat more time offered on weekends. Due to the availability of Class A programs from both ABC and NBC, to be utilized either on a live or delayed basis, WSOC-TV was able to reduce by about 5 hours per week the number of evening programs locally originated by the station. During such period, WSOC-TV’s schedule con[637] tained on the average about 12 hours per week fewer non-network programs than did WBTV’s schedule.
When WSOC-TV Carried Class A programs on a delayed basis or otherwise than in the period in which they were offered by the network, it received full Class A compensation for the programs.
During the period 1959-1967, WSOC-TV’s adjacencies to network programs, increased by selective use of network programs offered by both ABC and NBC, sold at about twice the rates which WSOC-TV earned for non-network program advertising.
67. On June 1,1959, Carolina reasonably anticipated that with two network affiliations WSOC-TV would be able to select and use the most popular programs offered by ABC and NBC, and in fact during the years 1959-1967, WSOC-TV did so, using such techniques as opening its evening program with a popular network program to provide “lead-in” audience for subsequent programs, and providing audience continuity by consecutive scheduling of similar network programs, thus making the adjacencies to the programs more attractive to advertisers, increasing revenues from sales thereof.
68. During the period 1959-1966, WSOC-TV broadcast an average of about 126.2 quarter hours per week of ABC shows and about 209 quarter hours per week of NBC shows. During this period, WSOC-TV earned an average of about $109 per quarter hour for ABC shows and about $31 per quarter hour for NBC shows, summarized by years as follows:
[638]*63869. WSOC-TV’s affiliation with the ABC television network terminated September 30, 1967. Thereafter its NBC television network compensation formula has been decreased twice. In 1969, its Class A half-hour rate was decreased from 60 percent to 50 percent of the hourly rate. On March 1,1970, its effective Class A hourly rate was decreased to $1,683 from $1,800 by an increase in AT&T line charges. By the end of 1970, these decreases reduced by about $200,000 per year the taxable income WSOC-TV would have earned if the 1967 NBC rates had remained in effect. Since 1967, the size of WSOC-TV’s average audience has increased about 10 percent in numbers, with its percentage share of the Charlotte market remaining fairly stable during that time.
70. WSOC-TV earned network revenues from NBC at an average rate of about $73 per quarter hour in 1968; about $76 per quarter hour in 1969; and about $64 per quarter hour in 1970.
71. From all of the evidence in this case, it is concluded that the respective fair market values as of June 1, 1959, of the following intangible assets, to be applied in the overall allocation of Carolina’s total cost basis to all assets acquired in the liquidation of WSOC company, are as follows: NBC television network affiliation contract, $1,288,663.91, including minimal value of the NBC radio network affiliation contract; ABC television network affiliation contract, $859,109.94; and the FCC television license, $1,156,495.15, including minimal value of the FCC radio licenses.
72. In summary, it is found that the total cost basis of Carolina in the sum of $6,719,696 for all assets acquired by Carolina upon liquidation of WSOC company as of June 1, 1959, was allocable as of that date to the various assets involved as follows:
Cash- $193,122. 00
Accounts receivable_ 231, 348. 00
All other tangible assets_ 2, 696, 944. 00
Transmitter site lease_ 84, 076. 00
Film contracts_ 209, 917. 00
NBC television network affiliation contract_ 1, 288, 663. 91
ABC television network affiliation contract_ 859,109. 94
FCC television license_ 1,156, 495. 15
Total cost basis. 6, 719, 696. 00
[639] Minimal values of the NBC radio network affiliation contract and of the FCC radio licenses are included respectively in the allocations to the NBC television network affiliation contract and the FCC television license.
73. Since the advent of television broadcasting, it has been the announced policy of the FCC to provide the public with as wide as possible a selection of television programming arid to encourage competition among all elements of the industry. The FCC has sought to provide multiple competitive tele-vison broadcasting facilities in the larger cities, and in particular has attempted in each of the top 50 markets, which on June 1, 1959, included the Charlotte market, to provide at least three competitive television stations. ABC, having a lesser number of affiliated stations than CBS and NBC, has consistently exerted pressure toward that end. The economics involved indicates that such pressure was recognized to be nationwide, because the competitive strength of ABC was of basic importance to all of its affiliated stations.
74. Because of the limitations on the number of VHF channels which can be assigned to a given geographical area, the FCC in 1952 allocated 70 UHF channels to television service. It had become apparent that the existing allocation of 12 VHF channels had proved insufficient to provide the desired competition in a number of markets. This was due to technical problems, such as the need for mileage separation of assigned channels on adjacent or identical frequencies. For such reasons, some markets have had less than three VHF channels assigned, and this has been the case in the Charlotte market.
In making its allocation of the 70 UHF channels, the FCC expressed its hope that the strong demand for television would spill over from VHF to UHF, that the UHF band would be fully utilized, and that UHF stations would eventually compete on a favorable basis with VHF as an integral part of a single, nationwide television service. It was contemplated that commercial television might be transferred from the VHF to the UHF band.
UHF television failed to attain competitive status with VHF, due principally to technical difficulties and the lack of a sufficient number of television sets equipped to receive [640] UHF signals. In the late 1950’s, the FCC considered a number of alternative approaches to a basic revision of its television allocations, and proposed issuing rules for the “drop in” of a third VHF station in a number of markets including Charlotte, North Carolina.
In July 1958, the FCC adopted regulations permitting television stations to operate their own intercity relay facilities or to obtain intercity transmission service from common carrier, with a view toward the establishment of local or regional networks.
In 1959, the FCC recommended the enactment by Congress of the All-Chlannel Receiver legislation, prohibiting the shipment in interstate commerce of new television sets not equipped to receive both VHF and UHF signals. The FCC then estimated that such legislation would cause complete UHF set penetration in approximately 10 years.
75. Considering the circumstances existing in the Charlotte market, and in the light of the actions and announced policies of the FCC, it was reasonably predictable as of June 1, 1959, that within 10 years, a third commercial television station would become established and competitive in the Charlotte market, that there would then be a restructuring of such market in the normal pattern of each television network exclusively affiliated with one television station, that CBS would remain affiliated with the strongest station, WBTV, that WSOC-TV would move to make a choice between NBC and ABC for an exclusive affiliation, that both WSOC-TV and NBC would prefer and accomplish exclusive affiliation between them, and that ABC would be left to affiliate with the new competitive station in the market.
From all of the evidence in this case, it is found that the ABC television network affiliation contract with WSOC-TV had a reasonably predictable life of 10 years as of June 1, 1959, with amortization of the cost basis of that asset to be computed accordingly during the taxable years in suit.
76. In its efforts to fulfill its statutory mandate to develop a nationwide competitive television system, the FCC has endeavored to apply three cardinal principles: (1) to foster competition among all elements of the industry; (2) to accomplish diversity of ownership and program choice; and [641] (3) to establish, local ownership of stations and the opportunity for local expression.
77. In its first general television allocation proceeding, completed in 1945, the FCC indicated that there were limitations to competition inherent in the allocation of only the 12 VHF frequencies available, recognized that the UHF band could provide sufficient channels for a truly competitive nationwide television system, but because of technical problems incident to the development and eventual use of UHF equipment and facilities, at first limited commercial television to the use of the 12 VHF frequencies.
78. In September 1948, the FCC instituted further proceedings to study the allocation of television frequencies, and at that time suspended processing of applications for new television stations. This suspension is known in the industry as the “freeze.” In July 1948, there were 30 television stations on the air serving 17 cities; and because of applications approved prior to the freeze, there were by July 1949,58 stations operating, and by July 1950, there were 106. In 1952, when there were 108 stations on the air serving 63 cities, the FCC lifted the freeze and instituted a revised television allocation plan. Instead of undertaking to transfer commercial television from VHF to UHF frequencies, the FCC allocation then provided inter alia for intermixture of VHF and UHF television stations in the same market or community, allocating some 70 UHF channels in addition to the 12 VHF channels previously allocated.
79. Television networking began in 1948 when the American Telephone and Telegraph Company made available television program transmission facilities connecting major cities in the eastern part of the United States. Public demand for television soon swept the nation, and television networking spread rapidly. By mid-1949, 14 metropolitan areas, and one-third of the population, were connected by the network chain or coaxial cable and microwave relay. By 1950,28 cities were interconnected, and by 1951, networking had linked 80 stations in 47 cities. By that time, television networking had supplanted radio networking as the most effective means of providing national communications service and national ad[642] vertising on an extensive scale to a very large portion of the population of the United States.
80. Notwithstanding the allocation in 1952 of 70 UPIF eba.-nrip.1s to television broadcasting, and the subsequent efforts of the FCC to promote use of the UPIF frequencies, including allowing increased power for UPIF stations relative to the VHF, relaxed operator requirements for UPIF, and pronouncements that tuners for television sets should be equally convenient to use for UPIF and VPIF reception, the bulk of the country’s commercial television service has been provided by VPIF stations. Television networks have consistently preferred affiliations with VHF stations. As of December 81,1970, there were 507 VHF stations on the air, and only 181 UHF commercial stations then operating.
For various reasons, UHF television broadcasting has not attained competitive equality with VHF, and UHF stations have been less attractive than VPIF to advertisers, potential purchasers and networks. The ’broadcast signal of a VHF station covers a larger area of a given market than does a UHF station. A greater need exists for outside antennas to receive a UHF signal. The market was initially saturated with television sets capable of receiving only VHF signals. Less convenient tuning devices are installed on television sets to receive UHF signals than those provided for VPIF, notwithstanding Congressional sanction of FCC’s proposal that television sets be equipped to receive both UPIF and VPIF signals.
The VPIF stations have remained dominant in spite of the FCC’s amendment in 1954 of its multiple ownership rules to permit a licensee with five VHF stations to acquire two additional UPIF television stations, and in spite of FCC’s proposal to “deintermix” UHF and VHF stations, making all stations the same kind in a given market, to provide equality of competition between them.
81. Television first developed in major cities where there were sufficient numbers of affluent residents who purchased the expensive television receivers and provided a substantial audience for a television broadcast limited to one market without networking. The early years of television have been called its “golden age” by critics of program quality, because [643] programs were then broadcast which appealed to the affluent, better educated persons comprising in the main the available audiences. However, as networking spread, and as the price of television sets declined, less sophisticated programs were broadcast, and are now being broadcast, to appeal to mass audiences, thus to capture national audiences attractive to national advertisers.
At first, it was common for a single national advertiser, or several acting jointly, to produce a program and purchase time on a television network for exposure to a national audience, with commercial messages interspersed in the program. However, it soon became the general practice for the networks to supply the programs, and thereafter the national advertisers have purchased either advertising time interspersed through the program, or national spots in the ad-jacencies to the network programs. The invention and use of the video tape, by permitting delayed broadcast by a station of a network program, has eliminated the advertising concept of simultaneous exposure of commercial messages to a national audience throughout a network, but network programming remains basic to national advertising, whether such programs are live or delayed.
82. The number of television stations operating in most markets is quite limited, not only because of the technical problems relating to use of various channels within a given geographical 'area, but also because, notwithstanding the allocation by the FCC of 70 TJHF channels for additional television stations, the circumstances in most markets are such that independent stations are unable to provide substantial competition with affiliated stations. With the markets generally structured with each of the three networks exclusively affiliated with one station, and with national advertising attracted to the popular programming of the networks, profits of local broadcast operations are concentrated in the affiliated stations, and in such circumstances, one could not reasonably expect a number of independent stations to enter such markets, even if the FCC granted TJHF licenses freely to foster competition.
The oligopoly power of the networks is such that they have developed substantial control over the sources of popular [644] programming. Even within this oligopoly, the two strongest networks have been able to usurp popular programming developed by the third network. The demise in 1955 of the fourth television network, DuMont, with its limited number of affiliates, is reasonably attributed to the market power of the three other networks. With its lesser affiliations, and resulting disadvantages, ABC has continued to be weaker than CBS and NBC to the present time. Under all of the circumstances, it cannot reasonably be predicted that a fourth television network will again become established in the commercial television industry.
83. Notwithstanding its pronouncements and actions to foster competition within the television industry, the FCC has recognized the positive contribution of networking to the development and maintenance of the national television system. In 1970, the FCC ruled that the networks cannot engage within the United States in the business of syndication of television programs, but it expressly recognized that they may otherwise sell their programs to others, and that they may freely compete to obtain the most popular programs for broadcast by their affiliated stations, and to engage in network broadcasting of programming produced by them or by companies they control.
The FCC early rejected the proposal for deintermixture of VHF and UHF stations, i.e., that in the top 100 markets, each of such markets have either all VHF or all UHF stations, and that in each market there be ¡allocated at least three competitive commercial stations (or in the case of the Du Mont network, four) so that all networks could compete on an equal footing. The FCC rejection was due to its conviction that UHF could become competitive with VHF, which was later shown to be mistaken, notwithstanding the All-Channel [Receiver legislation and other steps taken to assist UHF. The FCC eventually proposed the deintermixture of UHF and VHF stations, but formidable pressures have prevented the adoption of any such rule.
In 1961, the proposal to “drop in” a third VHF station in each of the 20 markets of the top 100 markets, which did not have three VHF stations, was rejected by the FCC. In [645]*6451963, the FCC refused to amend such rejection to permit such a “drop in” for Charlotte and seven other markets.
84. Indicative of the rapid growth of television has been the increase in the number of television sets in households in the United States: By 1949, about 1.8 million; by 1950, 7 million; by 1952, 20 million, or 44.8 percent of all households; by 1956, an additional 18.5 million; and by 1960, 90 percent of all homes had television sets. At the present time, about 63 million, or 95.6 percent of all households, have television sets.
In 1953, the FCC approved specifications for color television, and by 1957, 200 thousand color sets were in use, which increased to 8.5 million by 1966. At the present time, there are about 30 million color sets in use.
85. During the years 1960-1970, the percentage shares of network programs of national prime time television audiences has been as follows:
NETWORK PROGRAMS’ SHARE OP NATIONAL PRIME TIME TELEVISION AUDIENCE 1
86. Due to increasing program costs during the years 1960 through 1970, the networks have reduced the number of new episodes produced each year for a television series from 39 to 24, and have broadcast an increasing number of “repeats” of previous programs. Nevertheless, due to the compelling nature of the medium, the number of viewers of television programs has not been substantially affected. The broadcasting of “repeats” tends to make the networks vulnerable to competition from other program sources, but obviously such [646] practice could be eliminated or curtailed in the face of rising competition.
87. During the years 1959 through 1970, the television industry earned gross network, national spot, and local advertising revenues as follows:
88. During the years 1959 through 1970, the networks’ revenues and profit before Federal income tax were as follows:
89. In 1952, when the FCC adopted its first nationwide channel allocation plan, it reserved 242 channels in the UHF band in various communities solely for noncommercial public or educational television (PTY). Over the years, the FCC has considered the growth of PTV to be of utmost importance, and has promoted and encouraged its development in order to fill the needs of significant, but minority, audiences whose interests are not represented by network or other commercial television programming. Today, there are about [647]*647600 PTV channel allocations, one of which, WTVI (Channel 42), is assigned to Charlotte, North Carolina, and is licensed to the Charlotte-Mecklenburg Board of Education.
90. In July 1956, there were a total of 20 PTV stations on the air, which increased to 31 by July 1958. In 1962, Congress enacted the Educational Television Facilities Act which provided up to $32 million in matching grants to states for the construction of new PTV stations and the improvement of existing stations. When this program was initiated in May 1963, there were 82 PTV stations on the air. In 1967, Congress enacted legislation providing funds for PTV broadcast facilities and for the development and distribution of high quality programs for such stations. In April 1969, the FCC issued regulations permitting free or reduced-rate interconnection of PTV stations by common carrier. There are today some 40 state PTV networks, a number of regional PTV networks, and a national PTV network.
91. The first communications satellite was launched by the Soviet Union in 1957. The American counterpart followed in 1963.
In 1962, Congress established the Communications Satellite Corporation (Comsat) which has since established an international satellite communications system. Presently such system is capable of transmitting, and has transmitted, television and other communications to the United States from foreign countries.
In the case of the television transmissions, one or more of the national networks arranges to have the AT&T receive the program transmitted to the United States through facilities leased by AT&T from Comsat, and then such television signals are transmitted through the network in the United States. The Comsat satellite system has not been used for transmission of domestic program signals.
92. In 1966, the FCC commenced proceedings with respect to the establishment of a domestic communications satellite service, but in 1967, when the President’s Task Force on Communications Policy was appointed, suspended consideration of such matters. In 1970, following a recommendation of the Nixon Administration, the FCC announced that it would receive applications for satellite operation, expressly [648] stating that such notice was issued without any determination as to whether any of the applications would be granted in whole or in part. Seven or eight such applications are before the FCC, but the FCC has not made any determination as to whether there will be single or multiple carriers, or whether there will be an experimental period or regularization of any domestic satellite service. The whole matter is very much unsettled at the present time.
98. The probability is that any domestic satellite system will be channelled into the present systems rather than operate in direct competition with them. Such a satellite system would have the potential of providing a more economic means of interconnecting the affiliates of a commercial television network or of a public television network, and for interconnecting cable systems as well.
94. The possibility of satellite to home communication also has been envisioned. The potential effect, if regulations ever permitted, would be to eliminate local broadcasting stations, or at least drastically curtail their economic viability. While technically feasible even now, such satellite transmission of television signals is unlikely for economic, political and social reasons.
The present cost of a home antenna capable of receiving directly satellite signals would be about $100,000, and it is not known whether installation of such an antenna will ever become economically feasible.
Political and social considerations are those underlying the traditional commitment of the FCC to locally owned television stations, to satisfy community demands for local news, to provide opportunity for discussion of civic and community affairs, and to serve as a medium for local advertising.
The presently anticipated functions of a domestic satellite system are to provide television coverage to remote areas, to improve business and data communications, and to develop the educational applications of television.
95. In the late 1940’s, Zenith Kadio Corporation introduced the idea of subscription television service (STV), fees to be paid by television set owners for programs received. In 1955, the FCC first responded to Zenith’s documented proposals for implementation of such a service, issuing a notice of pro[649] posed rule making and inviting comments as to whether STV would be in the public interest. There followed a series of FCC and Congressional hearings, with numerous submissions of many affected parties, setting forth the arguments for and against STV. After 13 years, the FCC in 1968 authorized a severely restricted STV service.
In its four successive reports between 1957 and 1968, the FCC consistently pronounced that the central issue in the STV proceedings was whether subscription television would provide a beneficial supplement to the program choices available to the public, or whether it would seriously impair the capacity of the present system to continue to provide advertiser-financed programming of the present or foreseeable quantity and quality, free of direct charge to the public.
96. The proponents of STV mainly were manufacturers of various STV systems, licensees of stations contemplating STV seiwice and several public interest groups. Their principal arguments were that the public wanted and would pay to see on television sporting events and current feature films, which were unavailable on free TV, because the networks and national advertisers could not afford to pay the prices which could otherwise be commanded from the public by sporting leagues, promoters and movie producers. STV systems were also said to be capable of supporting cultural and educational programming directed to limited but nevertheless substantial audiences. Further, it was said that STV would not seriously impair the existing free TV system since its offerings would supplement current fare rather than duplicate it.
97. The opponents of STV were the three networks, the National Association of Broadcasters, representatives of the movie industry, and others, who considered pay TV to be a threat to their interests. They argued that pay TV would not only supplement, but also duplicate, the program offerings of free TV, in the end depriving the nation, especially its poor, of a highly advantageous free TV system. They challenged the idea that pay TV would be any more capable of deviating from mass appeal programming than the free system was.
98. In the late 1950’s, the FCC considered several proposals that experiments in STV operations be conducted by test [650] television stations. It authorized only the trial demonstration conducted 'by Zenith, using a UHF station at Hartford, Connecticut. Such experiment began in 1962 and ended in 1965. Zenith had hoped to have 50,000 subscribers, but the most it had was about 8,000, with only 4,000 at the end of the trial period. Each subscriber paid only for the program which he tuned into his set by use of a decoding device furnished to unscramble the signals broadcast in the experiment. The subscribers paid an 'average of about $5 per month. Only 5 percent of the subscribers watched a subscription program at any time. The best selling programs were relatively new movies and sports events not available on free television. Little of the limited cultural and educational programming offered was viewed by the subscribers.
99. In its eventual authorization of STV service, the FCC imposed restrictions, principal of which are the following:
(1) Only one STV station will be allowed in any market.
(2) STV operations will be allowed only in markets having five operating commercial television stations.
(3) Feature films to be broadcast on STV must basically be only those which have had a general release in theatres within the United States during the 2 years previous to the STV showing.
(4) Sporting events on STV are confined to those not broadcast regularly on free TV during the previous 2 years. If the last regular occurrence of 'a specific event occurred more than 2 years previously, that cannot be broadcast on STV.
(5) No serialized programs are allowed.
(6) Sports and feature films cannot exceed a maximum of 90 percent of subscription programming.
(7) Some non-subscription service shall be provided by an STV station.
100. In August 1970, the FOC granted approval of Zenith’s Phonevision STV technical system. STV applications have now been filed with the FOO for Boston, Detroit and Phila-deliphia. Zenith has contracted to acquire station KWHY-TV in Los Angeles for use as an STV station.
There is presently no STV system in operation.
101. Cable television, known as CATV because a community antenna is used to receive the television signals, is an [651] electronic system by which television signals are carried from the community antenna by way of a coaxial cable and feeder lines to home sets. Fees are paid by the subscribers for the cable service.
The first cable systems were installed in the late 1940’s to provide television programming to homes located in areas where television reception was either poor or nonexistent due to terrain factors or remoteness from the coverage area of any television station.
Typically, a large antenna was erected on a hilltop to receive television signals within air transmission range of their source, with cable delivery to the home sets in the area involved. This state of development of cable television was welcomed by the networks and the local stations because their audiences were enlarged by the extension of coverage. Cable television early began to expand into areas where there was some limited over-the-air television service, such as that provided by one small locally owned station.
102. By 1950, there were 20 CATV systems in the United States, serving 14,000 subscribers. By 1960,1,000 of such systems were serving 650,000 subscribers.
By 1960, some 200 to 300 cable systems had commenced the practice of importing distant television signals to their community antennas by use of microwave relay stations. The microwave systems consist of a series of antennas placed at about 35-mile intervals, by means of which television signals (network or otherwise) are continually reamplified and retransmitted over the air to community antennas which feed such signals into the individual cable systems in a large geographical area. The cable operator pays the microwave line charges and obtains programming without any payment to the broadcaster or holder of the program rights.
By 1967, there were 10 million CATV viewers in more than 2,700 communities. As of June 1,1971, there were some 2,700 CATV systems serving some 5.4 million 'homes in 4,400 communities.
103. The individual cable system is capable of carrying a multiplicity of television programs simultaneously. The original CATV systems had only a few channels. By the late 1950’s 12-channel systems were in operation. Today as many [652] as 20 channels are brought into homes on a single cable. The technology exists for considerably more.
104. In the mid-1950’s, local owners of television stations whose prior andience monopoly had been broken by intrusion of cable television complained of the development to the FCC and to Congress. In 1959, after hearing testimony of local broadcasters, and after consideraton of staff reports, the FCC was not persuaded that cable television had had any significant impact on over-the-air television, and held that in any event control of such impact as might exist could not be regulated by imposing rules upon the common carriers serving CATV systems, and that the FCC could not take jurisdiction over, or regulation of, the CATV systems themselves under the existing language of the Communications Act.
105. In 1962, the FCC denied the application of a common carrier to construct a microwave system to transmit television signals from television stations located in several distant cities to community antenna systems in the towns of Kiver-ton, Lander and Thermopolis, Wyoming, for cable transmission to subscribers.
The FCC reasoned that to permit the applicant to bring in outside programs for the community antenna systems would result in the demise of the local television station at Kiverton, Wyoming, with resulting loss of service to a rural population not served by the community antenna systems, and to many other persons who did not choose (or were unable) to pay the costs of subscribing to the cable television; and that the need for the local television service outweighed the improved service which the proposed microwave facilities would bring to the community antenna system.
This order was affirmed by the D.C. Circuit Court of Appeals, holding inter alia that the order of the FCC was not an extension of its authority beyond its statutory jurisdiction to include regulation of community antenna systems, but a proper exercise of its authority to provide adequate protection to the local television station in the public interest. Carter Mountain Tranmission Corp. v. F.C.C., 321 F. 2d 359 (D.C. Cir. 1963).
106. In 1965, the FCC adopted rules for CATV systems utilizing microwave facilities, which required them to carry [653] the signal of any local stations (carriage rule) and not duplicate the programming of local stations by transmitting any other distant signal (non-duplication rule).
107. In 1966, the FCC asserted jurisdiction over all CATV systems and set forth detailed policy considerations which would govern subsequent licensing proceedings involving such systems. In addition to sustaining the carriage and non-duplication rules, the FCC prohibited CATV systems operating in the top 100 markets from extending the signal of a broadcast station beyond its grade B coverage except upon a showing in an evidentiary hearing before the FCC that such operation would be consistent with the public interest, and particularly the establishment and healthy maintenance of UHF television broadcast service. The FCC expressed its concern that cable television, made initially viable by reliance upon broadcast signals in major markets, might destroy the system of free over-the-air television broadcasting, requiring the public to pay for what it had previously obtained free of charge.
108. In 1968, the Supreme Court sustained the authority of the FCC under the Communications Act to regulate CATV systems, holding that such systems are engaged in interstate communication even where the intercepted television signals emanate from stations located within the same state in which the CATV system operates. United States v. Southwestern Cable Co., 392 U.S. 157 (1968).
109. The development of cable television resulted in the emergence of substantial controversy concerning copyright liability of cable systems for programming taken off the air and transmitted to subscribers. Due to the many conflicting interests involved, no legislation has yet been enacted on this subject. However, recent CATV regulations of the FCC, mentioned in finding 112, provide substantial protections to the originators of telecast programs.
110. New rule-making proposals concerning CATV operations were made by the FCC in 1968, relating to program origination, importation of distant signals, retransmission rights and other matters. Regarding program origination by CATV, the FCC explained that several characteristics of CATV systems made program origination a valuable tool [654] favoring the public interest. These were stated to be their multi-channel capacity, and the possibility of having a separate cable system for each community, thus affording an .efficient means of local self-expression. The FCC reiterated continuing concern, however, about the potential inherent in CATV operations for destroying the free popular program service of broadcast television.
Regarding retransmission rights and importation of distant signals, the FCC proposed rule-mating: First, to protect broadcast stations, and especially UHF stations, no CATV system would be permitted to transmit the signals of any broadcast station unless that station granted retransmission consent; and second, a definitive rule would be adopted prohibiting the importation of signals into a zone extending 35 miles from the main post office in each of the top 100 markets. The top 100 markets were chosen because these were the areas which either had existing UHF stations or were likely to have them in the future.
111. On October 24,1969, the FCC adopted a rule providing that no CATV system having 3,500 or more subscribers shall carry the signal of any television broadcast station unless the system also operates to a “significant extent” as a local outlet by “cablecasting” and has facilities available for local production and presentation of programs other than automated services. “Significant extent” was defined to mean more than the origination of automated services, such as time and weather, news ticker, stock ticker, and the like, and “cablecasting” to mean transmitting programs on the CATV system originated by the CATV operator.
This rule was challenged in the courts. On June 7, 1972, the Supreme Court, in a 5 to 4 split, sustained the validity of the FCC rule, holding that such rule was within the statutory authority of the FCC within the meaning of the Communications Act of 1934. United States v. Midwest Video Corp., 406 U.S. 649 (1972), reversing the judgment of the Eighth Circuit, 441 F. 2d 1322 (1971).
112. Filed February 12,1972, Federal Register, Volume 37, No. 30, the FCC issued comprehensive rules and regulations governing CATV operations, effective March 31,1972. They are contained in a document entitled “Cable Television Serv[655] ice; Cable Television. Relay Service,” with extensive introductory recitals of the FCC history of proposed rule-making, hearings and rules issued concerning various facets of cable television. By reference to the Federal Register, and since unreasonably extensive summarization would otherwise be required, such document is made part of these findings of fact as if fully set forth herein.
113. During the years 1959-1962, the taxable years in dispute, the reasonable expectation was, as it is at the present time, that WSOC-TV would continue to have its NBC television network affiliation agreement for an indefinite period of useful life.
Conclusion oe Law
Upon the findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover and judgment is entered to that effect. The amount of recovery will be determined pursuant to Rule 131 (c).
Footnotes
499 F.2d 677 (Miami Valley Broadcasting Corp. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.