West Michigan Telecasters, Inc. v. FCC, 71-1007.

• Decision Date: 24 January 1972
• Docket Number: No. 71-1007.,71-1007.
• Citation: 460 F.2d 883
• Parties: WEST MICHIGAN TELECASTERS, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Channel 41, Inc., Permittee of UHF Television Station WUHQ-TV, Battle Creek, Michigan, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

460 F.2d 883 (1972)

WEST MICHIGAN TELECASTERS, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee Channel 41, Inc., Permittee of UHF Television Station WUHQ-TV, Battle Creek, Michigan, Intervenor.

No. 71-1007.

United States Court of Appeals, District of Columbia Circuit.

Argued December 9, 1971.

Decided January 24, 1972.

As Amended on Denial of Rehearing March 7, 1972.

Mr. Reed Miller, Washington, D. C., with whom Mr. David H. Lloyd and Mrs. Anne W. Branscomb, Washington, D. C., were on the brief, for appellant.

Mr. Charles M. Firestone, Counsel, Federal Communications Commission, with whom Messrs. Richard E. Wiley, General Counsel at the time the brief was filed, John H. Conlin, Associate General Counsel at the time the brief was filed, and Miss Katrina Renouf, Counsel, Federal Communications Commission, were on the brief, for appellee. Mr. Stuart F. Feldstein, Counsel, Federal Communications Commission, also entered an appearance for appellee.

Mr. Forbes W. Blair, Washington, D. C., for intervenor.

Before WRIGHT and WILKEY, Circuit Judges, and A. SHERMAN CHRISTENSEN,^* U. S. Senior District Judge for the District of Utah.

WILKEY, Circuit Judge:

The principal questions presented for review here are: First, whether the Federal Communications Commission abused its discretion when it denied¹ without a hearing West Michigan Telecasters, Inc.'s application for permission to move the location of its station WZZM-TV's transmitter, involving a request for a waiver of the Commission's Rules establishing minimum mileage separation between co-channel television stations; and, Second, whether the Commission set forth adequately the grounds for its decision here.

West Michigan is the licensee of VHF television station WZZM-TV in Grand Rapids, Michigan, channel 13, and is an affiliate of the ABC television network. On 27 May 1969 West Michigan filed an application with the FCC for permission to move station WZZM-TV's transmitter to a new location, approximately 155 miles from station WSPD-TV's transmitter in Toledo, Ohio, also operating on channel 13. West Michigan thus asked for a waiver of the Commission's mileage separation rule, which requires that West Michigan's transmitter be located at least 170 miles from the transmitters of any other stations which operate on channel 13, to protect these co-channel stations from interference.² To place this waiver request in proper perspective, it is necessary to review the background of television station allocation in the Grand Rapids area.

The Commission assigned channel 13 to Grand Rapids effective 11 September 1961.³ After considering a variety of possible options, including a proposal that channel 13 be assigned to Grand Rapids but that any licensee be permitted to locate its transmitter at a shortspaced (within 170 miles of the transmitter of a co-channel) site south of Grand Rapids and north of Kalamazoo (although including the latter in terms of coverage), the FCC made the allocation "on the basis that a station will be located at standard separations at least 170 miles from a co-channel's transmitter—roughly 25 miles northwest of Grand Rapids—and provide principal city service to that city and also to the sizeable metropolitan area of Muskegon."⁴ The Commission added:

We are persuaded that, on the basis of the comments herein and the 1960 Census data . . ., the public interest is better served by providing an assignment which will provide principal city service to Grand Rapids and Muskegon, at standard separations, than by providing an assignment—necessarily at short spacings—which would serve Grand Rapids and Kalamazoo, as do the two stations now in the market. In this connection, we have taken into account the fact that the Muskegon area is now nearly as populous as the Kalamazoo area; the shorter distance from Grand Rapids to Muskegon than from Grand Rapids to Kalamazoo, which would indicate that Grand Rapids-Muskegon constitutes one "market," with common interests, at least to the same extent as Grand Rapids-Kalamazoo; and the fact that Kalamazoo and environs have or will shortly have available two television services of principal-city grade and another Grade B or better, whereas the Muskegon area now has available no service of principal-city grade and much of this area has available only two services of Grade B or better.⁵

Also on 11 September 1961 the Commission adopted a general Report and Order, Interim Policy on VHF Television Channel Assignments, in which it found "a pressing urgency for the addition of a third service" in ten specified markets and thus decided that it would consider short spacing as an interim measure to bring initial or additional television, preferably local, service to those markets.⁶ In 1962, however, Congress passed the all channel receiver legislation,⁷ which provided the means for resolving the difficulties which the FCC's Interim Policy, supra, had attempted to meet. The Commission thus abandoned the latter and adopted the policy, presently in force, of achieving unfulfilled television allocations objectives principally through the assignment of UHF stations at standard spacing where needed.⁸ The Commission then assigned, on 9 February 1966, UHF channel 41 to Battle Creek, Michigan. This channel is intended to bring a third primary network service to Kalamazoo, which West Michigan's channel 13 was not allocated to serve⁹ in light of the spacing separation problems which would otherwise have arisen.

West Michigan, in its application of 27 May 1969 to move its transmitter to a short-spaced site 30 miles to the southwest of its present location, in order to be in a position to provide Grade B service to Battle Creek and Kalamazoo, presented the following as grounds for its request that the Commission waive its mileage separation rule and permit it to change the location of its transmitter:

(1) West Michigan would provide equivalent protection against interference to co-channel 13, station WSPD-TV, in Toledo, Ohio.

(2) West Michigan currently suffers a serious competitive imbalance vis-a-vis station WOOD-TV in Grand Rapids and station WZKO-TV in Kalamazoo, which reach 32-33% more homes in the Grand Rapids-Kalamazoo market than does station WZZM-TV.

(3) Station WZZM-TV's meritorious local programming would be extended to a large gain area in Kalamazoo, Battle Creek and other areas.

(4) The change in transmitter site proposed by West Michigan would have a beneficial impact on the development of commercial UHF and educational television since West Michigan would give its present transmitter site and tower to any UHF applicant who could make use of it, and would allow Wolverine Educational Television Corporation to use its new facilities at no cost.

The Commission, however, found that the facts advanced by West Michigan in support of these allegations did not, even if true, justify waiver of the mileage separation rule and thus concluded that a hearing on the application was not necessary. For the reasons discussed below, we affirm the Commission's decision.

I.

Under Section 309 of the Communications Act,¹⁰ the FCC may grant an application without a hearing if no substantial and material questions of fact are presented in regard to whether a grant would serve the public interest. Conversely, if such questions are presented, the Commission is required by the Act to hold a hearing on the application. The FCC may, however, establish rules of general applicability and dismiss an application which requires waiver of a rule without a hearing if the accompanying papers do not set forth sufficient reasons, if true, to justify waiver of the rule.¹¹ As the Commission has noted with respect to the burden of demonstrating sufficient basis for waiver:

Since our rules presumptively serve the public interest the rule here—Section 73.610(b)—is designed to prevent co-channel interference with television service to the public, those seeking their waiver have the burden of establishing that the public interest is better served, on the facts presented, by a waiver than by an application of the appropriate rules. Meeting that burden, of course, becomes more difficult as the deviation from the standards specified in the rules increases.¹²

While, on the other hand, as the court in WAIT Radio v. FCC observed, "A general rule, deemed valid because its overall objectives are in the public interest, may not be in the `public interest' if extended to an applicant who proposes a new service that will not undermine the policy, served by the rule, that has been adjudged in the public interest."¹³ It went on to find:

An agency need not sift pleadings and documents to identify such applications, but allegations . . ., stated with clarity and accompanied by supporting data, are not subject to perfunctory treatment, but must be given a "hard look."¹⁴

As such, the requirement that those seeking waiver of a Commission rule substantiate their applications with sufficient basis to demonstrate that waiver would be in the public interest, is not revoked. Instead, the FCC is directed to consider in detail such requests when accompanied with supporting data.

A.

West Michigan demonstrates in the instant case that waiver of the Commission's mileage separation rule would not harm the public interest since West Michigan's technical proposal, agreed to by WSPD-TV and to be implemented in the event of Commission approval of West Michigan's request to move its transmitter location to within 155 miles of station WSPD-TV's transmitter site, would provide equivalent protection from co-channel interference to WSPD-TV.

As West Michigan itself recognizes, however, the equivalent protection it would afford in the event of Commission approval merely constitutes satisfaction of a threshold requirement for its application here. That is, if it had not offered to provide such protection, it would have been barred at the outset and summary dismissal of its...