Owensboro On the Air v. United States

• Decision Date: 18 December 1958
• Docket Number: 14047,14049.,14044,13777,No. 13776,14046,13776
• Citation: 262 F.2d 702
• Parties: OWENSBORO ON THE AIR, Inc., and Owensboro Publishing Company, Petitioners, v. UNITED STATES of America and Federal Communications Commission, Respondents, American Broadcasting-Paramount Theatres, Inc., Intervenor, Mid-America Broadcasting Corporation, Intervenor, WEHT, Inc., Intervenor. OWENSBORO ON THE AIR, Inc., and Owensboro Publishing Company, Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, American Broadcasting-Paramount Theatres, Inc., Intervenor, Mid-America Broadcasting Corporation, Intervenor. OWENSBORO ON THE AIR, Inc., and Owensboro Publishing Company, Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, American Broadcasting-Paramount Theatres, Inc., Intervenor, Mid-America Broadcasting Corporation, Intervenor, WEHT, Inc., Intervenor. EVANSVILLE TELEVISION, Inc., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WEHT, Inc., Intervenor. EVANSVILLE TELEVISION, Inc., Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents, WEHT, Inc., Intervenor. OWENSBORO ON THE AIR, Inc., and Owensboro Publishing Company, Petitioners, v. UNITED STATES of America and Federal Communications Commission, Respondents, Amercan Broadcasting-Paramount Theatres, Inc., Intervenor, Mid-America Broadcasting Corporation, Intervenor, WEHT, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

262 F.2d 702 (1958)

OWENSBORO ON THE AIR, Inc., and Owensboro Publishing Company, Petitioners, v. UNITED STATES of America and Federal Communications Commission, Respondents, American Broadcasting-Paramount Theatres, Inc., Intervenor, Mid-America Broadcasting Corporation, Intervenor, WEHT, Inc., Intervenor.

OWENSBORO ON THE AIR, Inc., and Owensboro Publishing Company, Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, American Broadcasting-Paramount Theatres, Inc., Intervenor, Mid-America Broadcasting Corporation, Intervenor.

OWENSBORO ON THE AIR, Inc., and Owensboro Publishing Company, Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, American Broadcasting-Paramount Theatres, Inc., Intervenor, Mid-America Broadcasting Corporation, Intervenor, WEHT, Inc., Intervenor.

EVANSVILLE TELEVISION, Inc., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WEHT, Inc., Intervenor.

EVANSVILLE TELEVISION, Inc., Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents, WEHT, Inc., Intervenor.

OWENSBORO ON THE AIR, Inc., and Owensboro Publishing Company, Petitioners, v. UNITED STATES of America and Federal Communications Commission, Respondents, Amercan Broadcasting-Paramount Theatres, Inc., Intervenor, Mid-America Broadcasting Corporation, Intervenor, WEHT, Inc., Intervenor.

Nos. 13776, 13777, 14044, 14046, 14047, 14049.

United States Court of Appeals District of Columbia Circuit.

Argued September 18, 1958.

Decided December 18, 1958.

Petition for Rehearing Denied February 2, 1959.

Mr. Joseph Zias, Washington, D. C., for Owensboro on the Air, Inc., petitioner in Nos. 13776 and 14049 and appellant in Nos. 13777 and 14044. Mr. Philip G. Loucks, Washington, D. C., also entered an appearance for Owensboro on the Air, Inc., petitioner in No. 13776 and appellant in No. 13777. Mr. Maurice M. Jansky, Washington, D. C., also entered an appearance for Owensboro on the Air, Inc., appellant in No. 14044.

Mr. Robert N. Green, Washington, D. C., with whom Messrs. Vincent B. Welch, Harold E. Mott and Edward P. Morgan, Washington, D. C., were on the brief, for Evansville Television, Inc., appellant in No. 14046 and petitioner in No. 14047.

Mr. Russell Rowell, Washington, D. C., was on the brief for Owensboro Publishing Company, petitioner in Nos. 13776 and 14049 and appellant in Nos. 13777 and 14044. Messrs. Frank U. Fletcher and Robert L. Heald, Washington, D. C., also entered appearances for Owensboro Publishing Company, petitioner in No. 14044.

Mrs. Ruth V. Reel, Counsel, Federal Communications Comm., with whom Messrs. Warren E. Baker, Gen. Counsel, Federal Communications Comm., at the time the brief was filed, Richard A. Solomon, Asst. Gen. Counsel, Federal Communications Comm., Richard M. Zwolinski, Counsel, Federal Communications Comm., and Daniel M. Friedman, Atty., Dept. of Justice, were on the brief, for appellee-respondents. Mr. Charles C. McCarter, Atty., Federal Communications Comm., also entered an appearance for appellee-respondent Federal Communications Comm. in Nos. 14046 and 14047.

Mr. J. Roger Wollenberg, Washington, D. C., with whom Mr. Andrew G. Haley, Washington, D. C., was on the brief, for intervenor Mid-America Broadcasting Corp. in Nos. 13776, 13777, 14044 and 14049.

Messrs. James A. McKenna, Jr., and Vernon L. Wilkinson, Washington, D. C., were on the brief for intervenor American Broadcasting-Paramount Theatres, Inc., in Nos. 13776, 13777, 14044 and 14049.

Messrs. Bernard Koteen and Alan Y. Naftalin, Washington, D. C., were on the brief for intervenor WEHT, Inc.

Before FAHY, DANAHER and BASTIAN, Circuit Judges.

Petition for Rehearing In Banc Denied February 2, 1959.

DANAHER, Circuit Judge.

We are here asked to review another phase of the vexatious UHF-VHF conflict which has long engaged the Commission and which on several occasions has come to this court.¹ This time we are concerned with Evansville, Indiana, and the area adjacent thereto.

Owensboro on the Air, Inc. and Owensboro Publishing Company had been engaged in adjudicatory proceedings testing their comparative qualifications for an award of VHF Channel 9 in Hatfield, Indiana.² The Commission had made no award. These parties will hereinafter be referred to as Owensboro-appellants. Evansville Television, Inc., herein referred to as Evansville-WTVW, is a permittee which, since September 1956, has been operating on VHF Channel 7 in Evansville, Indiana.

Basically, the foregoing parties here contend that the Commission's rule making is technically invalid and thus that the deletion of VHF Channel 9 from Hatfield is illegal. The Commission's notice of proposed rule making in Docket No. 11757 specifically prescribed a contemplated plan to require all commercial television operations emanating from Evansville to utilize UHF channels. It was expressly noticed that VHF Channel 7 at Evansville was to be reserved for educational use, should the proposal be adopted. No construction permit had ever been issued for operation on VHF Channel 9 at Hatfield, and the notice of rule making did not mention Channel 9. Accordingly it is argued that the notice was fatally defective because of the Commission's alleged failure to comply with the notice requirements of § 4(a) of the Administrative Procedure Act, 5 U.S.C.A. § 1003(a) which reads in pertinent part:

"Sec. 4(a). Notice. — General notice of proposed rule making shall be published in the Federal Register (unless all persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law) and shall include * * * (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved." (Emphasis added.)

In Jacksonville Journal Co. v. Federal Communications Com'n, 1957, 101 U.S. App.D.C. 12, 13, 246 F.2d 699, 700, we noticed that the Commission's Report and Order in Docket No. 11532 had followed our Coastal Bend decision.³ Therein the Commission had specified certain criteria which were to be deemed generally applicable in dealing with the problem of interim action. The Commission had indicated that a "basic choice" in many markets might require the elimination of VHF channels in order to create improved opportunities for UHF broadcasting. 13 Pike & Fischer Radio Reg. 1571, 1581, 1582. On the same day, June 26, 1956, in Docket No. 11757, 21 Fed.Reg. 4972, the Commission gave notice of proposed rule making and specifically called attention to its Report and Order in Docket No. 11532, in accordance with the general objectives of which its interim program of channel reassignments was to be undertaken. The Commission proposed that VHF Channel 7 in Evansville be reserved for educational use and that UHF Channel 56 in Evansville be released from educational reservation so that Evansville would have UHF Channels 50, 56 and 62 for commercial use. The same notice of rule making further specified that:

"Any interested party who is of the view that the proposed amendment should not be adopted, or should not be adopted in the form set forth herein, may file with the Commission on or before September 10, 1956, a written statement setting forth his comments." (Emphasis added.)

In addition, parties submitting comments were expressly requested "to direct their attention to the matters discussed in paragraph 31 of the Commission's Report and Order issued today in Docket No. 11532." Thus incorporated by reference in No. 11757 were the criteria spelled out in detail in Docket No. 11532. The Commission explained:

"Because of the widely varying circumstances in individual markets and the numerous factors which bear on the choice of techniques in any individual community or area, it is not possible to formulate rigid criteria whose perfunctory application to individual cases will automatically indicate the course which would best serve the public interest in each community during the interim period. We have concluded, however, after extensive review of all the proposals which have been submitted to us for the elimination or addition of commercial VHF assignments, that the following considerations will have important bearing on decisions in specific communities or areas."⁴ 21 Fed.Reg. 4958, 4962.

Pursuant to the Commission's invitation that comments or counterproposals be submitted, on July 13, 1956, Mid-America Broadcasting Corp., intervenor herein, and permittee of WKLO-TV, Channel 21 at Louisville, Kentucky, asked that VHF Channel 7 be allocated to Louisville rather than be retained in Evansville on a reserved basis.⁵

Evansville-WTVW on August 24, 1956, requested withdrawal of the Commission's June 26, 1956, notice of proposed rule making in Docket No. 11757. Evansville-WTVW correctly contended that as permittee of VHF Channel 7 it was entitled to a full evidentiary hearing under § 316 of the Communications Act. The Evansville-WTVW petition was denied by the Commission in a memorandum and order adopted November 28, 1956, released December 3, 1956. The Commission there noted that the "Notice of Proposed Rule Making in Docket No. 11757, to which petitioner objects, is merely a proposal which may or may not be adopted in the form proposed. Only after consideration of the requested comments and any counterproposals that may be submitted will we be in a position to judge the proposal on its merits, both legal and factual." (Emphasis added.)

Thereupon, under date of December 3, 1956, Mid-America filed its comments and counterproposal that Channel 7 be reallocated to Louisville, that Channel 9 be reallocated or be deleted from Hatfield, Indiana, and that certain UHF channels be allocated to Evansville and Hatfield. The intervenors, Premier Television, Inc., permittee of UHF Station WFIE in Evansville and WEHT, Inc., permittee of UHF Station WEHT at Henderson, Kentucky, also on December 3, 1956, jointly submitted comments urging that the Commission's original proposal be adopted...