American Broadcasting Co. v. Federal Commun. Com'n, 9760.

• Citation: 85 US App. DC 343,179 F.2d 437
• Decision Date: 17 October 1949
• Docket Number: No. 9760.,9760.
• Parties: AMERICAN BROADCASTING CO., Inc. v. FEDERAL COMMUNICATIONS COMMISSION et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

85 US App. DC 343, 179 F.2d 437 (1949)

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

No. 9760.

United States Court of Appeals District of Columbia Circuit.

Argued November 23, 1948.

Decided October 17, 1949.

Mr. James A. McKenna, Jr., Washington, D. C., with whom Mr. Andrew G. Haley, Washington, D. C., who entered an appearance, and Mr. Joseph A. McDonald, New York City, were on the brief, for appellant. Mr. Vernon L. Wilkinson also entered an appearance for appellant.

Mr. Max Goldman, Acting Assistant General Counsel, Federal Communications Commission, with whom Mr. Benedict P. Cottone, General Counsel, who entered an appearance, and Mr. Richard A. Solomon and Miss Mary Jane Morris, Counsel, Federal Communications Commission, were on the brief, for appellee. Mr. Harry M. Plotkin, Assistant General Counsel, Federal Communications Commission, also entered an appearance for appellee.

Mr. Roy Hofheinz, Houston, Tex., of the Bar of the Supreme Court of Texas, pro hac vice, by special leave of Court, with whom Mr. Leonard H. Marks, Washington, D. C., who entered an appearance, and Mr. John Erle Stephen, Houston, Tex., were on the brief, for intervenor Texas Star Broadcasting Company. Mr. Marcus Cohn, Washington, D. C., also entered an appearance for intervenor Texas Star Broadcasting Company.

Mr. Marcus Cohn, Washington, D. C., entered an appearance for intervenors Max H. Jacobs, Douglas Hicks and Tom J. Harling, d/b as Veterans' Broadcasting Company.

Before STEPHENS, Chief Judge, and WILBUR K. MILLER and PROCTOR, Circuit Judges.

STEPHENS, Chief Judge.

Prior to May 9, 1947, the intervenor, Texas Star Broadcasting Company, hereafter referred to as Texas Star, was licensed by the Federal Communications Commission, hereafter referred to as the Commission, to operate radio station KTHT at Houston, Texas, on a frequency of 1230 kilocycles, 250 watts power, unlimited time. On May 9, 1947, the Commission granted to Texas Star a construction permit to change the KTHT frequency to 790 kilocycles and to increase its power to 5000 watts daytime, 1000 watts nighttime, with a directional antenna at night.¹ By this grant KTHT was authorized to increase its daytime service to the Houston metropolitan area and contiguous rural areas so as to reach some 548,000 additional persons (more than double the number being served at the time of the grant), to enlarge its service area by 24,000 square miles (6½ times), and to increase its nighttime service area so as to serve some 128,000 additional persons and 121 square miles (30% and 22% gains respectively). This grant caused no interference to existing or proposed stations. On August 21, 1947, however, the Commission, pursuant to an application filed on July 3, 1947, granted Texas Star a further authorization, to wit, to modify the KTHT construction permit by an increase of nighttime power to 5000 watts and to make a change in the transmitter location and in the installation of antenna arrays for both night and day operation. This grant was made upon the written submission of the application of Texas Star, that is to say, without an oral hearing before the Commission.

The appellant, American Broadcasting Company, Inc., hereafter referred to as American, is licensed to operate radio station KECA at Los Angeles, California, on a frequency of 790 kilocycles, 5000 watts power, unlimited time, with a directional antenna at night. It is a Class III-A station, and is as such licensed to operate within a "normally protected contour" of 2.5 mv/m. Its "established service area," however, extends to a contour of 1.83 mv/ m.² Within the time allowed by Section 405 of the Communications Act of 1934, 47 U.S.C. §§ 151 et seq. (1946), hereafter referred to as the Communications Act, and by the Rules and Regulations of the Commission, Part 1, § 1.390, American filed a petition, together with a supporting engineering affidavit, for reconsideration of the grant of August 21, 1947, to Texas Star. The petition and affidavit asserted that the operation of KTHT under the grant of August 21, 1947, will by interference increase the nighttime limitation to KECA from 1.83 mv/m to 2.46 mv/m and cause a loss to KECA of 23% of its service area and 153,644 listeners (a 5.2% population loss); that the interference will lie in the general Los Angeles area; that although the service area in question is presently served by six other broadcasting stations, none of them carries the same general program service as that of KECA. American later filed a supplemental petition and supporting engineering affidavit submitting to the Commission a proposed revised directional antenna system for KTHT, which, it was asserted, would serve substantially the same areas and population as would be served by the antenna system authorized by the grant of August 21, 1947, for KTHT (1190 square miles as compared with 1248 square miles; 579,357 persons as compared with 574,064 persons), and would protect the service area of KECA and the service areas of all existing or proposed co-channel and adjacent channel stations. By its petition and supplemental petition and the supporting affidavits, American sought favorable action by the Commission under that provision of Section 1 of the Commission's Standards of Good Engineering Practice Concerning Standard Broadcast Stations, effective August 1, 1939 (revised to October 30, 1947), page 3, reading as follows:

When it is shown that primary service is rendered by any of the above classes of stations,³ beyond the normally protected contour, and when primary service to approximately 90 percent of the population (population served with adequate signal) of the area between the normally protected contour and the contour to which such station actually serves, is not supplied by any other station or stations carrying the same general program service, the contour to which protection may be afforded in such cases will be determined from the individual merits of the case under consideration.

Hereafter for convenience this provision is referred to as the individual merit standard. American's petition and supplemental petition prayed that the Commission set aside the August 21, 1947, grant to Texas Star, designate for hearing Texas Star's application for this grant, make American a party to the hearing, and include an issue as to whether KTHT could operate with 5000 watts power at nighttime and employ a directional antenna such as would afford protection to the present service area of KECA and other co-channel stations. In brief, American sought a hearing in which it might show to the Commission before final action on the application of Texas Star the extent and seriousness as alleged of the loss to the KECA service area as a result of the operation of KTHT if the grant of August 21, 1947, were to be made final, and in which it might aid the Commission in determining whether or not the public interest, convenience and necessity would best be served by the operation of KTHT under the grant of August 21, 1947, or by its operation in such manner as to protect the service area of KECA.

To these petitions of American, Texas Star filed an opposition supported by an engineering affidavit. This opposition controverted the allegation of American that the proposed operation of KTHT would cause loss to KECA of 153,644 listeners, alleging that only 77,410 resided in the claimed area of interference compared with 128,642 additional persons who would receive service in the Houston area under the proposed operation of KTHT. The opposition controverted also the allegation of American that the interference to be occasioned would lie in the general Los Angeles area, asserting to the contrary that the nearest point in the interference area would be 22 miles from Los Angeles, and some points as much as 48 miles distant. The opposition further controverted the assertion of American that none of the six stations other than KECA serving the area in question carries the same general program service as that furnished by KECA, alleging to the contrary that the area of claimed interference is served by six stations other than KECA, to wit, four Los Angeles stations, two of which are national network affiliates, and two other stations, and that these stations furnish the same general type of program service as KECA. The opposition of Texas Star further asserted that since the Commission's order of August 21, 1947, granting the application for modification of its construction permit, Texas Star had made substantial expenditures upon the faith of this grant; that a grant of American's petitions would cause irremediable and unjustifiable damage to Texas Star; that American's proposed directional antenna system for KTHT would seriously limit that station's service in one of the most populous districts in the Houston metropolitan area, would require additional land possibly unobtainable even at increased price (since purchase of a transmitter under the August 21 grant), and would require added expense for two additional towers with phasing equipment. The opposition of Texas Star still further asserted that Section II, B, paragraph 6 of the North American Regional Broadcasting Agreement, Havana, 1937, 55 Stat. (Pt. 2) 1005, designates 790 kilocycles as a regional channel; that stations such as KECA are protected by that Agreement to the 2.5 mv/m contour; that under the Agreement a foreign assignment could be made on the 790 kilocycles channel which would limit KECA to its 2.5 mv/m contour; and that in determining the equities urged by American, this should be considered. Finally, the opposition of Texas Star asserted that § 1.390 of the Commission's Rules and Regulations limits petitions for reconsideration to those wherein it is alleged that interference would be suffered by the petitioner within its normally protected contour, and does not contemplate rehearings upon petitions such as those of...