105 F.2d 36 (D.D.C. 1939), 7016, Pottsville Broadcasting Co. v. F.C.C.

Docket Nº:7016.
Citation:105 F.2d 36
Case Date:April 03, 1939
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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105 F.2d 36 (D.D.C. 1939)





No. 7016.

United States Court of Appeals, District of Columbia.

April 3, 1939

Argued Jan. 10, 1939.

Rehearing Denied May 5, 1939.

On Petition for Writ of Prohibition and Writ of Mandamus.

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Eliot C. Lovett and Charles D. Drayton, both of Washington, D.C., for appellant.

William J. Dempsey, Gen. Counsel, William H. Bauer, Andrew G. Haley, Hampson Gary, Gen. Counsel, George B. Porter, Asst. Gen. Counsel, Fanney Neyman, Asst. Counsel, and Frank U. Fletcher, all of Washington, D.C., for Federal Communications Commission.

Arthur W. Scharfeld, Philip G. Loucks, and Joseph F. Zias, all of Washington, D.C., for Schuylkill Broadcasting Co.

Before GRONER, Chief Justice, and STEPHENS and EDGERTON, Associate justices.


Pottsville Broadcasting Company (petitioner) is a Maryland corporation. In May, 1936, it applied to the Federal Communications Commission for a construction permit to erect a radio broadcasting station in Pottsville, Pennsylvania. The application was on the prescribed form and averred that there was public need for the service and that it would not cause objectionable interference with any existing station; that the station would be built and equipped in conformity with the Commission's standards and subject to its approval; that the applicant was legally, technically, and financially qualified; and that the public interest, convenience and necessity would be served by the grant to it of the permit. On July 2, 1936, the application was referred to an examiner; hearings were begun in September; and in October the examiner reported his findings of fact, concluded that the averments of the application had been proved, and recommended the granting of the application. The Commission allowed intervention and exceptions by the Schuylkill Broadcasting Company, which had applied for the same facilities shortly after petitioner's application had been set for hearing, but whose record had not been made. In December, 1936, the Broadcast Division of the Commission set petitioner's application down for oral argument. In May, 1937, the Commission handed down its decision, denying petitioner's application. In its statement of facts and decision the Commission said there existed a need for local service in Pottsville; that the equipment proposed to be used was capable of operating in conformity with the technical rules and regulations of the Commission; but that the showing of financial ability was not satisfactory; and for that reason it was not in the public interest to grant the license. The Commission added that the principal stockholder of the applicant did not reside in Pottsville, had no definite plans for

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spending a 'percentage of his time' there, and had failed to show he was acquainted with the needs of the area proposed to be served and prepared to meet those needs.

From the order denying the application there was an appeal to this court. In May, 1938, we decided that the Commission was in error in holding that petitioner had not shown adequate financial responsibility, and on this ground reversed the order. 69 App.D.C. 9, 98 F.2d 288. As to the Commission's general inference, i.e., that it is desirable that those who control the policies of a local station should show themselves acquainted with the needs of the locality, we said that we knew from published reports of the Commission that it had not adopted a fixed and definite policy in that respect, nor sought to lay down a hard and fast rule; and in this view, and considering the good faith of the applicant and the conclusion of the Commission that the establishment of a station in Pottsville was desirable and in the public interest, we would without expressing any opinion of our own leave that question for reconsideration by the Commission.

When the case was remanded, petitioner asked the Commission to reconsider and grant its application. It pointed out that the Commission had never adopted a policy requiring a majority stockholder in the applicant corporation for a local station to be a resident of the area to be served. And it insisted that, since the application was not for a 'local station' anyway, the question was not pertinent, and there was consequently nothing more to consider. The Commission, however, refused to accede to this position and entered an order for a new hearing on the applications of petitioner, Pottsville News and Radio Corporation (whose application had been filed seven months after the petitioner's), and Schuylkill Broadcasting Company...

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