WBEN, Inc. v. United States, 346

• Decision Date: 10 May 1968
• Docket Number: 402,31923,347,409,No. 346,31835,31988.,32018,403,Dockets 31688,346
• Parties: WBEN, INC., Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents. ASSOCIATION ON BROADCASTING STANDARDS, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Rockland Broadcasters et al., Intervenors. PACIFIC AND SOUTHERN COMPANY, Inc., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Association on Broadcasting Standards, Inc., Radio Olean, Inc., Techeland Broadcasting, Inc., Intervenors, KING'S GARDEN, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. GOLDEN PLAINS INCORPORATED, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Klamath Broadcasting Co., et al., Intervenors.
• Court: U.S. Court of Appeals — Second Circuit

396 F.2d 601 (1968)

WBEN, INC., Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents.

ASSOCIATION ON BROADCASTING STANDARDS, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Rockland Broadcasters et al., Intervenors.

PACIFIC AND SOUTHERN COMPANY, Inc., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Association on Broadcasting Standards, Inc., Radio Olean, Inc., Techeland Broadcasting, Inc., Intervenors, KING'S GARDEN, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.

GOLDEN PLAINS INCORPORATED, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Klamath Broadcasting Co., et al., Intervenors.

Nos. 346, 347, 402, 403, 409, Dockets 31688, 31835, 31923, 32018, 31988.

United States Court of Appeals Second Circuit.

Argued March 21, 1968.

Decided May 10, 1968.

Certiorari Denied October 21, 1968.

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Robert L. Heald, Washington, D. C. (Fletcher, Heald, Powell, Kenehan & Hildreth, Washington, D. C., Frank U. Fletcher, Edward F. Kenehan, James P. Riley, Washington, D. C., on brief), for petitioner WBEN, Inc.

William J. Potts, Jr., Washington, D. C. (Michael H. Bader, Washington, D. C., on brief, for petitioner Ass'n. of Broadcasting Standards.

Morton L. Berfield, Washington, D. C. (Cohen & Berfield, Washington, D. C., Lewis I. Cohen, Gennaro D. Caliendo, Washington, D. C., on brief), for petitioner King's Garden, Inc.

John L. Tierney, Washington, D. C. (McKenna & Wilkinson, Washington, D. C., James A. McKenna, Vernon L. Wilkinson, Washington, D. C., on brief), for petitioner Golden Plains, Inc.

Lauren A. Colby, Washington, D. C., for Intervenors Rockland Broadcasters, Ubiquitous Corp., Christian Broadcasting Corp., 5 KW, Inc., Heart of Georgia, Inc., Three Towers, Inc., Bexar Broadcasting Co., Inc., and others.

McKenna & Wilkinson, Washington, D. C., on the briefs, for intervenor American Broadcasting Co., Inc. and for intervenors Klamath Broadcasting Co., Plains Radio Broadcasting Co., Golden West Broadcasters et al.

John H. Conlin, Associate General Counsel (Henry Geller, General Counsel, William L. Fishman, Counsel, Donald F. Turner, Asst. U. S. Atty. Gen., Gregory B. Hovendon, Attorney, Department of Justice, Washington, D. C.), for respondents Federal Communications Commission and United States of America.

Before LUMBARD, Chief Judge, and FRIENDLY and ANDERSON, Circuit Judges.

Certiorari Denied October 21, 1968. See 89 S.Ct. 238, 240.

FRIENDLY, Circuit Judge:

As a result of proceedings in several courts of appeals unnecessary to detail we have before us a number of petitions, under 28 U.S.C. § 2342(1), for review of orders of the Federal Communications Commission, reported in 8 F.C.C.2d 698 (1967), and 10 F.C.C.2d 283 (1967), which amend Part 73 of the Commission's Rules so as to establish a changed pattern for presunrise operation by certain classes of AM radio stations. While the petitions raise many substantial questions, both substantive and procedural, which have demanded extensive consideration and discussion, we sustain the Commission.

From its very beginning, federal regulation of standard AM radio service has been complicated by the fact that radio waves do not act in the same way when the sun is up as when down. During the day, the part of the radio signal directed skyward (the "skywave") is dissipated in the atmosphere, and only the portion moving parallel to the ground (the "groundwave") provides useful service. At night, however, the ionosphere reflects the skywave signal back to earth, and if the skywave is strong enough, a station can land an audible signal in large areas that its ground wave does not reach. This, however, is not an unmixed blessing. If the skywave lands in an area already receiving service from another station on the same frequency, the two signals may destroy one another so that only garbled noises will be audible.

The Commission has attempted to fashion a nighttime allocation pattern that will maximize the number of listeners who will benefit from skywave service and yet permit as many listeners as possible a wide choice of program, preferably of nearby origination. The AM band has been divided into three parts for these purposes. On 46 Clear Channels wide area service is the Commission's dominant goal. Twenty-four of these channels are occupied by one Class I-A station of high power, whose skywave and groundwave are given maximum protection. 47 C.F.R. § 73.25(a) (1967). At the most, only one other station in Class II is permitted to operate at night on these channels, and the power and direction of the subordinate station's signal is limited so that it will not cause undue interference. Other Class II stations occupying these channels are limited to daytime broadcasting, where the skywave is of no concern. The other 22 Clear Channels are intended to serve the same purpose as the ones we have just discussed. They differ only in that each is occupied at night by two or more dominant stations in Class I-B and, often, by several subordinate stations in Class II.¹ The overwhelming majority of the Class II stations, however, are limited to daytime broadcasts.² By this careful allocation pattern, the Commission has succeeded in providing skywave radio service to some 20,000,000 persons who would not receive any groundwave signal at night.

Complementing the Clear Channel stations are the stations of moderate power in Class III that are located on 41 "regional" channels. These stations are expected to provide large numbers of listeners with one or more programs originating closer to home. Since many more stations occupy a given channel at night, regional broadcasters generally do not have a usable skywave service. 47 C.F.R. § 73.182(e), (v) (1967). Steps must be taken, however, to guarantee that one station's skywave signal will not interfere with another's groundwave. Consequently, of the 858 Class III stations permitted to operate by night, only 90 operate with the same facilities they are allowed to use by day. Moreover, 1200 additional Class III stations are restricted to daytime only broadcasting to insure against interference.

To supplement the services provided by the regional broadcasters, a large number of low power Class IV stations are assigned to six local channels. Their night operations are limited in a similar manner.

The Commission's Earlier Efforts as to Presunrise Operation.

The shift from nighttime to daytime ionospheric conditions does not take place the instant the sun rises; instead, the skywave signal weakens gradually from two hours before dawn, and it is not until two hours after sunrise that true daytime conditions exist. It is the Commission's effort to regulate broadcasting during the transitional presunrise period with which we are here concerned. In 1941, the agency promulgated special rules, which remained substantially intact until the rule-making proceeding now under review, to govern the conflicting interest of daytimers and fulltimers during the pre-dawn hours of transition. Under old rule 73.87, quoted in the margin,³ all restricted stations, except for those in Class IV and certain ones in Class II, could begin broadcasting at full daytime power from 4 A.M. If, however, undue interference to fulltime stations resulted, the Commission had the right to suspend such pre-dawn operations summarily, pending a hearing on the interference question. Music Broadcasting Co. v. F. C. C., 95 U.S.App.D.C. 12, 217 F.2d 339 (1954). Although the principal beneficiaries of the rule were Class III stations whose nighttime operations were limited or banned entirely, a substantial number of Class I-B and Class II stations took advantage of its provisions as well.

While this system worked relatively well during its early years, it was subjected to increasing strain as the number of AM stations increased from 882 in 1941 to the present 4250, and the number of daytimers mushroomed from 60 to 2180. Interference complaints from dominant fulltimers naturally increased, leading to summary termination of the daytimers' pre-dawn services. Indeed, some of the fulltimers on the particularly crowded regional channels indicated they would complain more often but for the fact that the airwaves had become so full that it was impossible to identify the interfering daytimer within a reasonable period of time. Moreover, it was reasonable to expect that the fulltimers would exercise increasing vigilance over their channels for the presunrise hours had taken on a new economic importance in an era in which the largest radio audiences were to be reached during the time America was driving to work.

The daytimers, too, were becoming increasingly restive with the terms of a compromise which promised to become increasingly unfavorable to their interests. In 1957, the Commission began a study of a proposal, sponsored by their Association, which would have given them the right to operate from 5 A.M. to 7 P.M. regardless of the amount of interference this would cause the dominant fulltimers. This was rejected in 1958, Daytime Standard Broadcast Stations, 17 R.R. 1669. A somewhat more modest proposal, permitting operation from 6 A.M. to 6 P.M., suffered a similar fate a year later, Extended Hours for Daytime Operation, 26 F.C.C. 53.

The Instant Proceedings

In 1960, however, the old regime was again put into question when the Senate ratified a new North American Broadcasting Agreement which, as we shall describe at a later point, made it clear that the presunrise operations of at least half of the stations taking advantage of Rule 73.87 were in violation of our international commitments. In response to the treaty and to the complaints of the fulltimers, the Commission issued a...