Allentown Broadcasting Corp. v. Federal Commun. Co.

• Decision Date: 19 August 1954
• Docket Number: 11957.,No. 11897,11897
• Citation: 222 F.2d 781
• Parties: ALLENTOWN BROADCASTING CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Easton Publishing Company, Intervenor, WKAP, Inc., Intervenor. ALLENTOWN BROADCASTING CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WKAP, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

222 F.2d 781 (1954)

ALLENTOWN BROADCASTING CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Easton Publishing Company, Intervenor, WKAP, Inc., Intervenor.

ALLENTOWN BROADCASTING CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WKAP, Inc., Intervenor.

Nos. 11897, 11957.

United States Court of Appeals District of Columbia Circuit.

Argued February 26, 1954.

Decided August 19, 1954.

Mr. Donald C. Beelar, Washington, D. C., with whom Messrs. Charles R. Cutler and Herbert J. Miller, Jr., Washington, D. C., were on the brief, for appellant. Mr. Reed T. Rollo, Washington, D. C., entered an appearance for appellant.

Mr. Richard A. Solomon, Asst. Gen. Counsel, Federal Communications Commission, with whom Miss Mary Jane Morris, Counsel, Federal Communications Commission, was on the brief, for appellee. Mr. J. Roger Wollenberg, Asst. Gen. Counsel, Federal Communications Commission, at time brief was filed, was also on the brief for appellee.

Mr. Eliot C. Lovett, Washington, D. C., for intervenor Easton Publishing Co.

Mr. Stephen Tuhy, Jr., Washington, D. C., for intervenor WKAP, Inc.

Before WILBUR K. MILLER, PRETTYMAN and BAZELON, Circuit Judges.

BAZELON, Circuit Judge.

This is an appeal from an order of the Federal Communications Commission granting the license application of the Easton Publishing Company for the assignment of a standard radio station at Easton, Pennsylvania, and denying that of Allentown Broadcasting Corporation for the same assignment at Allentown, Pennsylvania, 14 miles away.¹ It marks the third appearance of these parties before this court since their mutually exclusive applications were filed in 1945.²

When the Easton Company first appealed to this court from a June 1947 order of the Commission awarding the license to the Allentown applicant, we remanded the case "for findings upon the comparative needs of the two communities for new radio service and the relative abilities of the applicants to serve the greater need."³ In February 1950, the Commission, rejecting a joint request for a final decision without further hearings, set aside the prior grant to Allentown, and reopened the record.⁴ In March 1950, both applicants petitioned this court for writs of mandamus and prohibition directing the Commission to make a finding on the existing record. These petitions were denied on October 23, 1950,⁵ and in March 1951, hearings in the reopened proceedings were commenced by the Commission.

Pursuant to our mandate, the Hearing Examiner made findings as to the comparative needs of the two communities, and the relative abilities of the applicants to serve the greater need. On the question of community need, the Hearing Examiner noted, inter alia, that Easton had only one standard broadcast station, whereas Allentown had three in addition to the one being operated by appellant under temporary authority of the Commission.⁶ But in applying § 307(b) of the Communications Act of 1934,⁷ which requires the Commission to provide a "fair, efficient and equitable distribution of radio service * * *," the Examiner also noted that Allentown had a population about three times that of Easton, and was growing at about four times the rate of Easton.⁸ She concluded that the "over-all evidence" showed a greater need for additional service in Allentown. For this reason, and because she viewed the record as casting grave doubt upon the reliability of the Easton applicant,⁹ her Initial Decision recommended a grant to the Allentown company.

The Commission in the order now challenged reversed the finding of a greater need in Allentown, and set aside various findings reflecting adversely on the ability shown by the Easton applicant to serve its community's need. It found that both applicants proposed well-balanced program service, that slight differences between the two with respect to equipment, management and the like, fairly well canceled out,¹⁰ and that "considered separately" in terms of need for additional service of the type proposed by the applicants, "there is little room for choice between the two communities."¹¹

In those circumstances of what it regarded as closely balanced community needs and applicant abilities, the Commission found the following to be the "decisive factor" in compelling a grant of the additional facility to Easton:

"* * * Allentown is presently served by three standard broadcast stations located in and broadcasting local programs for that city, as well as receiving daytime service from the station located in adjoining Bethlehem, while only one standard broadcast station is located in and broadcast sic local programs for the Easton community. Thus, the residents of the Allentown community presently are afforded a choice between local standard broadcast programs and stations, a choice which can only be made available to the residents of the Easton community by means of an additional standard broadcast service."

This "choice of local service" principle is a gloss on § 307(b) of the Communications Act of 1934, supra. It was first applied by the Commission in Northwestern Ohio Broadcasting Corp.,¹² upon the crucial findings that the choice between the two communities was "indeed a difficult one,"¹³ and that both applicants "proposed to render meritorious program services designed to meet the needs of the respective communities * * *."¹⁴ Since we affirmed on appeal because there was "no error in the record,"¹⁵ our approval of the "choice of local service" principle was limited to its application in circumstances of otherwise approximately equivalent community need and applicant ability to serve such need. Although in the present case the Commission purported to find such equivalence, we think there is no substantial evidence in the record as a whole — including the Hearing Examiner's Initial Decision — to support the essential underlying finding that the ability of the applicants to serve their respective communities was about equal.¹⁶ Hence, we hold the Commission's error is fatal to the order under review and requires that the case be remanded for reconsideration by the Commission.

We discuss three phases of the record which compel us to this view. They are: (1) Uncertainty as to programming plans; (2) Reluctance, evasiveness and lack of candor; and (3) Monopoly and concentration of communications media.

(1) Uncertainty as to programming plans. At the 1946 hearing, the Easton applicant indicated that it would acquire a network affiliation if at all possible, and its proposed program schedule at that time included a number of network programs. But at the 1951 hearing, its proposed program schedule contained no network programs, and no mention was made of possible network affiliation on direct examination. On cross-examination, however, the general manager of Easton, first flatly denied any present intention to affiliate,¹⁷ then spoke of a "remote possibility that sometime in the indefinite future we might affiliate,"¹⁸ and, finally, admitted that if licensed, "we would probably explore the possibility" and if a desirable network affiliation were available would take affirmative steps to secure it.¹⁹

Although it is plain from this testimony that a network affiliation was contemplated, the Easton applicant, as the Hearing Examiner pointed out, offered no testimony as to "what programs now proposed would be scrapped to make way for network programs." Without such information, the Commission could not reasonably reach a conclusion in favor of the Easton Company on one of the crucial issues before it, namely, the Easton Company's ability to provide a choice of "locally originating programs."

(2) Reluctance, evasiveness, and lack of candor. The Hearing Examiner concluded that Easton's principal witnesses were reluctant, evasive, and had "not made * * * frank, candid and honest disclosures * * *." Although this conclusion was based in large part upon an evaluation of the demeanor, bearing, delivery, etc., of the Easton witnesses who appeared before the Examiner,²⁰ the Commission felt obligated to make an independent evaluation of the evidence because "the Examiner's findings were primarily based on her evaluation of testimony by one witness rather than on her judgment as to the credibility of different witnesses who make contradictory statements * * *." We cannot agree that the Examiner's findings are entitled to any less weight than findings which resolve a conflict between witnesses. Both involve a determination based upon an evaluation of the witnesses' demeanor, bearing and delivery; and it has been specifically held that the uncontradicted testimony of a single witness may be rejected on the basis of such factors, and that this is a judgment best made by the trier of fact who "had the witnesses before it * * *."²¹

The Commission, after independently examining the cold record, reversed the Examiner's findings and concluded that the testimony in question "properly viewed, gives an overall appearance of consistency, candor and straightforwardness."²² But as Judge Learned Hand recently observed, "* * * we are not to be reluctant to insist that an examiner's findings on veracity must not be overruled without a very substantial preponderance in the testimony as recorded."²³ We briefly describe certain matters appearing in the cold record which convince us that there is no such substantial preponderance in the present testimony.

(a) In connection with the question of a network affiliation, the Easton witness, as noted earlier, first spoke of the "remote possibility * * * in the indefinite future" of a network affiliation, but later, under prodding, conceded that Easton would act affirmatively to acquire one if licensed.

(b) On direct examination, the President of the Easton Publishing Company testified that in addition to the Easton Express, which his company published, dailies published in Allentown, Bethlehem, Bangor (Pennsylvania), Newark,...