American Broadcasting Co. v. FEDERAL COMMUN. COM'N

• Decision Date: 19 July 1951
• Docket Number: 10570.,No. 10496,10496
• Citation: 191 F.2d 492
• Parties: AMERICAN BROADCASTING CO., Inc. v. FEDERAL COMMUNICATIONS COMMISSION et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

191 F.2d 492 (1951)

AMERICAN BROADCASTING CO., Inc. v. FEDERAL COMMUNICATIONS COMMISSION et al.

Nos. 10496, 10570.

United States Court of Appeals District of Columbia Circuit.

Argued June 26, 1951.

Decided July 19, 1951.

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James A. McKenna, Jr., Washington, D. C., with whom Andrew G. Haley and Vernon L. Wilkinson, Washington, D. C., were on the brief, for appellant.

Max Goldman, Asst. Gen. Counsel, Federal Communications Commission, Washington, D. C., with whom Benedict P. Cottone, Gen. Counsel, Federal Communications Commission, and Richard A. Solomon and Mary Jane Morris, Attys., Federal Communications Commission, Washington, D.C., were on the brief, for appellee. Dee W. Pincock, Washington, D. C., also entered an appearance for appellee in No. 10570.

W. Theodore Pierson, Washington, D. C., with whom Vernon C. Kohlhaas, Washington, D. C., was on the brief, for intervenor. Thomas N. Dowd, Washington, D. C., also entered an appearance for intervenor.

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

WASHINGTON, Circuit Judge.

These cases raise the question whether the Federal Communications Commission has acted fairly, expeditiously and within the framework of its legal powers in dealing with a complex problem relative to the allocation of radio frequencies to certain broadcasting stations.

I.

The American Broadcasting Company appeals from two orders of the Federal Communications Commission granting successive "special service authorizations" to the Albuquerque Broadcasting Company, permitting the latter to operate station KOB on a frequency of 770 kilocycles, unlimited time, at 50 kilowatts during the day and 25 kilowatts at night. A "special service authorization" is a form of temporary permit, of a nature to be described in detail later in this opinion. The basis of appeal by the American Broadcasting Company is its claim — admitted by both the Commission and the Albuquerque Broadcasting Company, intervenor — that operation of station KOB as thus authorized substantially interferes with the protected secondary service of station WJZ, New York, an affiliate of the American Broadcasting Company which operates as a Class I-A station on 770 kilocycles with power of 50 kilowatts, unlimited time.¹

Before turning to the specific contentions of the parties, we find it necessary to set out in some detail the factual background. Station KOB, Albuquerque, was operating under a license of the Department of Commerce as early as 1922. In 1928 the Federal Radio Commission assigned KOB the frequency of 1180 kilocycles, at a power of 10 kilowatts. In May 1940 a permit was issued by the Communications Commission to KOB permitting an increase of power to 50 kilowatts and designating it as a Class I station. KOB was at that time the only station licensed to operate at night on 1180 kilocycles.

In 1941 the United States negotiated a treaty with several other countries in the North American area, including Canada and Mexico, which was designed to allocate certain frequencies to each country free of interference from the other countries, thus facilitating better service in each. This treaty (the North American Regional Broadcasting Agreement)² did not permit of assigning an American station to the frequency of 1180 kilocycles, which was the frequency on which KOB operated. As the Agreement itself did not provide upon what frequency a station such as KOB would thereafter operate, a serious problem confronted the Communications Commission. In an effort to solve it, the Commission in September 1940 proposed to assign KOB to the frequency 1030 kilocycles, at a power of 50 kilowatts, operating unlimited time as a Class II station. At that time station WBZ, Boston, was operating as a Class I-A station on that same frequency, and in order to permit the change, the license of WBZ would have had to be modified from a Class I-A to a Class I-B status. WBZ opposed this change and Commission engineers made a study of another proposed frequency, that of 1200 kilocycles. The use of that frequency, however, was found not to be feasible. In February 1941 the Commission proposed assigning KOB to 1030 kilocycles (as the only frequency then available) at 10 kilowatts power, unlimited time, and further provided for an increase of power to 50 kilowatts upon construction of a directional antenna and proof of performance. KOB objected, as did WBZ, but both withdrew their objections when it was made clear that the assignment to 1030 kilocycles was a temporary one. Accordingly, in March 1941 KOB was so licensed, the Commission stating that "consideration of the question as to which frequency should be permanently assigned this station will be deferred until an appropriate application presents that issue." Shortly thereafter KOB applied for a special service authorization to operate on 1030 kilocycles at 50 kilowatts day and 25 kilowatts night, unlimited time, which was granted in June, 1941.

While these proceedings were going on, the Commission began a survey to determine on which frequency KOB could best operate, and made field recordings of interference at various points. Some measurements taken in 1941, before atmospheric conditions rendered additional surveys impossible, indicated that KOB would have a wider area of interference-free operation on 770 kilocycles than on 1030 kilocycles, where considerable interference to both KOB and WBZ existed. On October 14, 1941, the Commission on its own motion modified KOB's special service authorization to specify 770 kilocycles in lieu of 1030 kilocycles. Further measurements were taken, but before anything conclusive could be determined the United States entered World War II and the work was necessarily suspended.

WJZ protested the assignment of KOB to 770 kilocycles. WJZ was classified as a clear channel station and under its license was entitled to interference-free operation. Acting on this protest, the Commission held in late 1941 and early 1942 that the operation of station KOB on 770 kilocycles was temporary, and that if at any later time a permanent assignment was made, the party aggrieved could then protest. Again, as in the KOB-WBZ dispute, upon the understanding that the assignment was temporary, until a permanent billet could be found for KOB, and also having regard to the outbreak of war, WJZ did not press its objections to the action of the Commission in maintaining the status quo by successive renewals of KOB's special service authorization.

In early 1944 KOB requested a construction permit and regular license for 770 kilocycles, unlimited time. WJZ intervened in these proceedings, and sought a continuance for about three months. In order to get KOB's consent to the delay, WJZ agreed not to oppose any further extension of KOB's special service authorization on 770 kilocycles during the pendency of the litigation. After several further delays a hearing was finally held and the record closed on January 12, 1945. Before decision of that case, the Commission initiated the so-called "clear channel hearing" to determine the appropriate classification and best use of all clear channel frequencies in the United States, of which 770 kilocycles was but one. At first WJZ requested that the KOB proceedings be held up until determination of the clear channel proceedings. This motion was never acted upon by the Commission. However, later in 1945 WJZ requested a prompt decision in the KOB case and in early 1946 filed a motion requesting dismissal of the KOB applications. These motions were denied in April and May 1946. In August 1946 the Commission issued a notice entitled "Statement of Procedure to be Followed by the Commission in Connection with Applications to Operate on I-A Channels," in which it set forth that its policy would be not to consider applications to operate on clear channels until after the determination of the clear channel proceedings. It accordingly put the KOB application in the pending file.³

The clear channel proceedings have not as yet been concluded. They were apparently delayed (at least at one stage) by the request of a Senate Committee that these proceedings not be determined until the completion of a new North American Regional Broadcasting Agreement, and then perhaps further delayed so that the matter could be considered by the Senate itself.⁴ The Commission evidently considers that some congressional action along these lines may be forthcoming, and should be awaited. The new North American Regional Broadcasting Agreement has been negotiated but has not as yet been ratified. Accordingly, the status of the clear channel proceedings is quite uncertain, and the future status of the KOB application for permanent licensing on 770 kilocycles is equally unclear.

It is in this background that we must view the two appeals here before us. Both of them are from further extensions by the Federal Communication Commission, each for a six months period, of applications by KOB for special service authorizations to permit it to continue operating, as it has been since 1941, on 770 kilocycles. The Commission granted those authorizations, stating on December 14, 1949, after oral argument en banc, with regard to the first application:

"Since the question of KOB's permanent assignment involves the classification of two important clear channels, 770 kc and 1030 kc, it cannot be determined until after a decision in the Clear Channel Hearing. The latter proceeding contemplates a possible reclassification of all of the clear channels and cannot be decided piecemeal. In fact, WJZ itself has recognized and strongly argued that the solution of the KOB problem is subsidiary to and dependent upon a decision in the Clear Channel Hearing.

"Thus all that can be decided now is the question of how KOB should operate in the interim period until its permanent assignment can be determined. Upon consideration of all of the facts we are of the opinion that...