Northeast Broadcasting, Inc. v. FCC

• Decision Date: 19 July 1968
• Docket Number: No. 21419.,21419.
• Citation: 400 F.2d 749,130 US App. DC 278
• Parties: NORTHEAST BROADCASTING, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Naugatuck Valley Service, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

130 US App. DC 278, 400 F.2d 749 (1968)

NORTHEAST BROADCASTING, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Naugatuck Valley Service, Inc., Intervenor.

No. 21419.

United States Court of Appeals District of Columbia Circuit.

Argued April 23, 1968.

Decided July 19, 1968.

Mr. James A. Gammon, Washington, D.C., with whom Miss Lorie M. Molnar, Washington, D.C., was on the brief, for appellant.

Mr. Edward J. Kuhlmann, Counsel, Federal Communications Commission, with whom Messrs. Henry Geller, General Counsel, John H. Conlin, Associate General Counsel, and Mrs. Lenore G. Ehrig, Counsel, Federal Communications Commission, were on the brief, for appellee.

Mr. Vernon L. Wilkinson, Washington, D.C., whom Mr. James A. McKenna, Jr., Washington, D.C., was on the brief, for intervenor.

Before WILBUR K. MILLER, Senior Circuit Judge, and McGOWAN and TAMM, Circuit Judges.

TAMM, Circuit Judge:

We are asked by appellant in this proceeding to set aside a Memorandum, Opinion and Order of the Federal Communications Commission released on October 16, 1967 (FCC 67-1126). That Opinion and Order finalized as Commission action a Decision of the Commission Review Board released July 7, 1967 (FCC 67R-280) and consequently appellant's challenge penetrates the Commission's Order and seeks to set aside the Review Board Decision.

I

Naugatuck Valley Service, Inc., operator of radio station WOWW at Naugatuck, Connecticut, filed an application with the Commission seeking authority to change its facilities from operation as a Class II station on 860 kHz with 250 watts power, daytime only, directionalized, to operation as a Class III-B station on 1380 kHz with 5 kilowatts power daytime, and 500 watts power nighttime, employing different directional antennas day and night. The application was designated for hearing by Order released October 16, 1964 (FCC 64-937) on issues addressed to inquiry into areas and populations gaining services, the availability of primary service to such areas and populations, interference issues with respect to other radio stations, an issue regarding the proposed directional antenna parameters and, of course, the ultimate public interest issue. On December 27, 1965, the Hearing Examiner released an Initial Decision (FCC 65D-61) proposing that the requested authority to change facilities be granted. This approach was in accord with the Broadcast Bureau's recommendations and was in essence that the proposed change in facilities would result in a first local nighttime transmission facility for 19,511 persons residing in Naugatuck and it also would furnish during nighttime hours a first or second primary service to a substantial number of persons.

On the same date, however, id est, on December 27, 1965, the Commission released a Policy Statement on Section 307 (b) Considerations for Standard Broadcast Facilities Involving Suburban Communities, 2 F.C.C.2d 190 (1965). This Policy Statement apparently was the result, at least in part, of our opinion in Miners Broadcasting Service, Inc. v. FCC, 121 U.S.App.D.C. 222, 349 F.2d 199 (1965). It will be recalled that in the Miners case we remanded the proceeding to the Commission for reconsideration or explanation of the factors considered determinative in distinguishing between two suburban applicants for radio licenses, both of whom proposed to serve some parts of their central city, in order to determine whether the applicants actually intended to serve the needs and desires of the central city rather than the suburb.

The Commission's Policy Statement in essence pointed out that as power and coverage are increased to serve larger numbers of persons, stations in metropolitan areas often tend to identify themselves with the entire metropolitan area rather than with the particular needs of their specified communities. The Commission concluded that where an applicant proposed a 5 mv/m daytime contour which would penetrate the geographic boundaries of any community with a population of over 50,000 persons and with at least twice the population of the applicant's specified community, a presumption will arise that the applicant proposes to serve the larger community rather than his specified location. The Commission established this presumption as a rebuttable one reasoning that many communities which adjoin a larger city might well deserve and consequently should be afforded an opportunity to have a local transmission service. In defining the new policy the Commission stated it was intended "to provide an accommodation of heretofore apparently conflicting allocation considerations. While we still wish to discourage any proposal that will be merely a substandard central city station, we are persuaded that many developing and deserving suburban communities should be afforded an opportunity to obtain a first local transmission service. Moreover, while we wish to encourage each applicant to propose as much power as he will need to comply with our allocation rules, every applicant who falls within our test will be required to demonstrate that his proposal is designed to provide a realistic local transmission service for his specified community." 2 F.C.C.2d 190, at 193 (1965).

As a result of the Commission's Policy Statement, the Review Board, sua sponte, remanded this proceeding to the Examiner and remanded other pending applications for further consideration. The purpose of the remand to the Examiner was in this case to allow Naugatuck Valley Service, Inc. an opportunity to rebut the presumption that its proposal was in fact one to serve Waterbury, Connecticut, such presumption arising because the population of Naugatuck is 19,511 as compared to the Waterbury population of 107,130 people. It is to be noted also that Naugatuck is geographically contiguous to Waterbury. The Review Board in remanding to the Examiner for further consideration noted that Naugatuck Valley Service, Inc. through its proposed operation of WOWW on the 5 mv/m daytime contour would completely cover the city of Waterbury. The Board further found that the "WOWW proposal is presumptively one to serve Waterbury rather than Naugatuck" and directed in some detail that the Examiner afford WOWW an opportunity to rebut this presumption (J.A. at 17). The remanded proceeding was specifically addressed to a determination of whether the proposed expansion of WOWW facilities and periods of operation "will realistically provide a local transmission facility for its specified station location or for another larger community, in light of all of the relevant evidence * * *" (J.A. at 17).

On February 28, 1966, our appellant, Northeast Broadcasting, Inc., licensee of standard broadcast station WWCO, Waterbury, Connecticut, filed a petition to intervene before the Commission in this proceeding and the intervention petition was certified to the Examiner for action but such intervention was restricted to the new issues raised by the Review Board's remand to the Examiner. Thereafter in accord with usual procedures the Examiner heard additional witnesses and received additional documentary evidence in proceedings in which both the Broadcast Bureau and Northeast Broadcasting, Inc. participated. The Examiner rendered a Supplemental Initial Decision on November 25, 1966 (FCC 66D-67) proposing again to grant intervenor's request for revision of facilities and change in broadcasting schedules. Exceptions and supporting briefs were filed to the Supplemental Initial Decision both by appellant Northeast Broadcasting, Inc. and by the Broadcast Bureau and, of course, intervenor, Naugatuck Valley Service filed a statement in support of the Supplemental Initial Decision.

The Review Board again considered the entire case and by a decision adopted June 28, 1967 (FCC 67R-280) and released on July 7, 1967, that board again approved the grant of the requested facilities and schedule changes sought by intervenor on behalf of station WOWW. One member of the Review Board dissented from this decision. Our appellant petitioned the Commission for review of the Review Board's decision and the Commission denied this review by its Memorandum, Opinion and Order of October 16, 1967 (FCC 67-1126).

II

Appellant's challenge to the Commission's action presents a fourfold attack thereupon by urging reversible error on the Commission's part in (a) acting in an arbitrary and capricious manner in granting the WOWW application; (b) in failing in granting the application to conform to applicable Commission policy and law; (c) in failing to set forth the basis for its actions, and (d) in taking affirmative action in granting the application without substantial evidence of record to support that action. There is, however, such substantial overlapping of discussion and argument in Appellant's Brief as to these issues and the "Statement of Points" (appearing therein at pages seven and eight) as to make a seriatim treatment in this opinion of argument and response a virtual impossibility. We must therefore consider each argument for reversal of the Commission's action on the basis of its content rather than upon the order of its enumeration or the sometimes confusing phraseology of its presentation. We are not aided in our consideration of the problems arising in this case by the failure of Commission counsel to comment upon, distinguish between, or differentiate several cases cited by appellants.¹

We do not accept appellant's contention that the Review Board disregarded our "prior directions" in Miners Broadcasting Service, Inc. v. FCC, supra. Our opinion in that case was addressed basically to a difficulty growing out of a record which did not make "clear to us that the facts of this case compel a distinction between appellant and intervenor."² Our remand to the Commission was specifically to require articulation of the "relevance of the difference" between the relative city coverage of the competing applicants and to "make additional...