Sanders Bros. Radio Station v. FEDERAL COMMUNICATIONS COM'N

Citation106 F.2d 321
Decision Date23 January 1939
Docket NumberNo. 7087.,7087.
PartiesSANDERS BROS. RADIO STATION v. FEDERAL COMMUNICATIONS COMMISSION (TELEGRAPH HERALD, Intervener).
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

COPYRIGHT MATERIAL OMITTED

Louis G. Caldwell, Reed T. Rollo and Percy H. Russell, Jr., all of Washington, D. C., for appellant.

Hampson Gary, George B. Porter, Wm. H. Bauer, Fanney Neyman and Hugh B. Hutchison, all of Washington, D. C., all of the Federal Communications Commission, for appellee.

Eliot C. Lovett, of Washington, D. C., for intervener.

Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.

Writ of Certiorari Granted December 11, 1939. See 60 S.Ct. 294, 84 L.Ed. ___.

MILLER, Associate Justice.

The Federal Communications Commission granted an application of Telegraph Herald to construct a new radio broadcasting station at Dubuque, Iowa. At the same time it granted an application of Sanders Brothers Radio Station to move its station, WKBB, across the Mississippi River from East Dubuque, Illinois, to Dubuque, Iowa. Sanders Brothers petitioned for a rehearing of the decision granting the Telegraph Herald application; its petition was denied; and this appeal followed. Telegraph Herald intervened herein.

Appellee denies that appellant has an appealable interest. Section 402(b) (2) of the Communications Act of 1934,1 permits an appeal by any person aggrieved or whose interests are adversely affected by any decision of the Commission, granting or refusing an application for a radio station license. This court has held that the nature of an appellant's grievance can be measured on appeal "only by the reasons therefor which the act requires it to give; and in order to determine its appealable interest we must look — and can look only — to those reasons."2

In the present case appellant alleged in its statement of reasons for appeal that:

"1. The Commission erred in failing to find that there is inadequate and insufficient economic support in Dubuque, Iowa for the station proposed by the Telegraph Herald.

"2. The Commission erred in failing to find that the operation of the station proposed in Dubuque, Iowa by the Telegraph Herald will result in a financial and economic injury to the appellant, will result in a large loss of operating revenue to the appellant, will further increase its net losses, will impair the service rendered by the appellant to its listening audience, and will destroy the ability of the appellant to render programs of high type and in the public interest.

"3. The Commission erred in failing to find that the appellant, which has in the past lost large sums of money through the operation of its station and which is at present failing to earn sufficient money to pay its operating expenses and fixed charges, will lose even greater sums by the operation of the station proposed by the Telegraph Herald.

"4. The Commission erred in failing to make any finding with reference to the economic effect upon the appellant by the granting of the application of the Telegraph Herald.

* * * * * *

"11. The Commission erred in failing to find by written findings made prior to or concurrently with entry of the decision and issuance of the final order that the granting of the application of the Telegraph Herald would adversely affect the interests of Sanders Brothers Radio Station, licensee of WKBB, and will not serve public interest, convenience and necessity."

These reasons were clearly adequate to present an issue of "economic injury to an existing station through the establishment of an additional station * * *" and that statement of issue is sufficient to furnish proper grounds of contest on appeal.3

In its order, effective July 27, 1937, the Commission determined "that public interest, convenience and necessity will be served by granting the applications of Telegraph Herald and Sanders Brothers Radio Station for construction permits." Appellant correctly contends that the Commission's findings were insufficient to support this determination and decision, in so far as it relates to intervener's application, since no finding was made concerning the matter of economic injury.

While a radio broadcasting station is not a public utility in the same sense as a railroad, nevertheless radio communication constitutes interstate commerce and involves the public interest, and it is in this respect that Congress has exercised its power to regulate it.4 Since the power of Congress has not been extended to the point of regulating rates for service, or the establishment of rules requiring like service for the entire public, or limiting profits on the basis of investment, or otherwise, the term — public interest, convenience and necessity — should not be given such a broad meaning as has been applied to it elsewhere in the interpretation of public utility legislation. For that reason we have held that the Commission "is not required to give the owner of an existing station priority * * * because alone of the primacy of its grant."5 Nevertheless the Act clearly contemplates that consideration shall be given to the equities of existing stations.6 "In any case where it is shown that the effect of granting a new license will be to defeat the ability of the holder of the old license to carry on in the public interest, the application should be denied unless there are overweening reasons of a public nature for granting it. And it is obviously a stronger case where neither licensee will be financially able to render adequate service. This, we think, is the clear intent of section 402(b) (2) of the statute, which provides for an appeal by an aggrieved person whose interests are adversely affected by a decision of the commission granting or refusing an application."7

Appellee concedes that no finding was made upon the issue of economic injury, but urges that appellant, although given opportunity to do so, failed to furnish evidence to establish the issue; hence that it was not required to make a finding thereon. But the conclusion does not follow. The issue of economic injury having been clearly presented, the Commission was bound to decide it one way or the other, and to make appropriate findings of fact in support of its decision.8 Absence of findings, whatever the reason therefor, cannot take the place of adequate findings, and the Commission's decision as to public interest, convenience and necessity cannot stand unless supported by such findings.9 Moreover, it is not the function of this court to review the evidence for the purpose of making findings10 or of justifying findings not made.11

In its brief the Commission contends that since both appellant and the intervener were found to be financially qualified, and since proper findings were made upon sufficient evidence concerning population, industries, and business establishments, the assumption is warranted that there are adequate sources of advertising available in the Dubuque area to support the operation of two broadcast stations. This is a possible inference, but viewed in the light of the finding that appellant is losing money is not a necessary one. Another possible inference is that the Commission totally disregarded the issue of economic injury to appellant; and another, that the Commission considered the issue and found it to be without merit. What actually occurred we are left to surmise. To avoid such a situation is the purpose of the rule.12 The difficulty, therefore, is that the Commission, in its statement of facts and grounds for decision, has not spoken "with the simplicity and clearness through which a halting impression ripens into reasonable certitude. In the end we are left to spell out, to argue, to choose between conflicting inferences."13 Again, in its brief, the Commission says:

"The Appellant proposes to continue operating unlimited time, which includes nighttime hours, whereas the Intervener plans to operate only during the day. It is a matter of common knowledge that evening hours of operation are generally recognized as the most desirable from the standpoint of commercial advertising. This fact is clearly demonstrated by the Appellant's own advertising rate card, which shows that charges for time during evening hours are materially higher than for time sold during the day (R. 461-462). Obviously these parties cannot compete during such hours."

This seems to indicate an advantage for appellant over intervener in the competition for financial support of their respective stations, and, moreover, appellee argues therefrom that the two may receive the patronage of different classes of advertisers. Similarly, appellee argues that appellant will have an advantage because it has a network affiliation and "The Intervener cannot, therefore, be deemed a competitor for sponsored net work programs, which are generally considered an important source of revenue." Moreover, the Commission argues that differences — in frequency, power, type of station, rates and program service — between appellant's station and intervener's proposed station refute the claim of the former that it will suffer economic injury. It contends further that the testimony in the record "does not sustain Appellant's contention that the service areas of the two stations will be practically the same, but, on the contrary, shows that that of Intervener will be larger." Italics supplied The conclusion seems to be inescapable, therefore, that economic competition between the two will cover the entire area served by appellant and that if the available potential economic support in that area is inadequate, the result may well be disastrous for appellant or for both. The Commission points out also that intervener plans a program service especially designed to serve the agricultural and educational needs of the surrounding rural area "far more...

To continue reading

Request your trial
11 cases
  • Yankee Network v. Federal Communications Com'n
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 14 August 1939
    ...Moreover, we have recently decided the issue adversely to the Commission's contention in Sanders Brothers Radio Station v. Federal Communications Comm., 70 App. D.C. 297, 106 F.2d 321. However, since the Commission has strenuously urged that we reconsider the problem, a thorough analysis of......
  • National Broadcasting Co. v. Federal Communications Com., 7933.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 12 September 1942
    ...4 The question has been presented here and in the Supreme Court in numerous cases. E. g., Sanders Bros. Radio Station v. Federal Communications Comm., 1939, 70 App.D.C. 297, 106 F.2d 321, reversed on other grounds, 1940, 309 U.S. 470, 642, 60 S.Ct. 693, 84 L.Ed. 869, 1037; WOKO, Inc., v. Fe......
  • Lundregan v. Lundregan
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 17 January 1958
    ...U.S.App. D.C. 291, 239 F.2d 454; and see, also, Vendemia v. Cristaldi, 95 U.S.App.D.C. 230, 221 F.2d 103; Sanders Bros. Radio Station v. FCC, 70 App.D.C. 297, 300, 106 F.2d 321, 324. 1 Circuit Judge Clark, sitting as a District Judge, used this language: "Since, therefore, all statements of......
  • Trustees of Washington Township v. Kenneth E. Davis
    • United States
    • Ohio Court of Appeals
    • 19 March 2001
    ... ... and Clear Channel Communications, Inc., defendants below and ... appellants ... (Citicasters) holds a Federal ... Communications Commission (FCC) license to perate AM radio ... station WTVN in Columbus at 610 Khz. WTVN ... Sanders Bros. Radio Station v. Federal Communications ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT