Channel 9 Syracuse, Inc. v. FCC

Decision Date26 September 1967
Docket NumberNo. 20843,20915.,20843
Citation128 US App. DC 187,385 F.2d 969
PartiesCHANNEL 9 SYRACUSE, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Eastern Microwave, Incorporated, Auburn Cablevision Corporation, New York-Penn Microwave Corporation, General Electric Cablevision Corporation and Unicable, Incorporated, Intervenors. CHANNEL 9 SYRACUSE, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, and United States of America, Respondents, Eastern Microwave, Incorporated, Auburn Cablevision Corporation and New York-Penn Microwave Corporation, Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. John P. Bankson, Jr., Washington, D. C., with whom Messrs. Arthur H. Schroeder and William M. Barnard, Washington, D. C., were on the brief, for appellant in No. 20,843 and petitioner in No. 20,915.

Mr. Stuart F. Feldstein, Counsel, F. C. C., with whom Asst. Atty. Gen. Donald F. Turner and Messrs. Henry Geller, Gen. Counsel, and John H. Conlin, Associate Gen. Counsel, F. C. C., and Howard E. Shapiro, Atty., Dept. of Justice, were on the brief, for appellee in No. 20,843 and respondents in No. 20,915. Mrs. Lenore G. Ehrig, Counsel, F. C. C., also entered an appearance for appellee in No. 20,843 and respondent Federal Communications Commission in No. 20,915.

Mr. Lewis I. Cohen, Washington, D. C., attorney for intervenors Auburn Cablevision Corp. and New York-Penn Microwave Corp., argued on behalf of all intervenors.

Messrs. William P. Sims, Jr. and John D. Matthews, Washington, D. C., were on the brief for intervenor Eastern Microwave, Inc. Mr. Daniel M. Redmond, Washington, D. C., also entered an appearance for intervenor Eastern Microwave, Inc.

Messrs. James A. McKenna, Jr., Vernon L. Wilkinson and Robert W. Coll, Washington, D. C., were on the brief for intervenor General Electric Cablevision Corp.

Mr. William J. Kenney, Washington, D. C., entered an appearance for intervenor Unicable, Inc.

Before FAHY, Senior Circuit Judge, and WRIGHT and ROBINSON, Circuit Judges.

PER CURIAM:

On February 24, 1967, the Federal Communications Commission issued a memorandum opinion and order which (1) granted the applications of New York-Penn Microwave Corporation and Eastern Microwave, Incorporated for new microwave facilities to provide non-network New York City and Canadian television signals to community antenna television (CATV) systems in Auburn and Oswego, New York, and (2) granted the petitions of Unicable, Incorporated, Auburn Cablevision Corporation and General Electric Cablevision Corporation for waiver of the Commission's CATV rules and for permission to carry the "distant" signals to be provided by the aforementioned microwave systems.1 Channel 9 Syracuse, Inc., a party to the proceedings before the Commission, has appealed from the grant of the microwave applications (No. 20,843),2 and petitioned for review of the grant of the waiver requests and concomitant permission to carry the "distant" signals to be supplied by the microwave systems (No. 20,915).3 We affirm the Commission.

I

After an extended rule-making proceeding the Commission asserted jurisdiction over all CATV systems and adopted a comprehensive regulatory scheme.4 Under the Commission's regulations a CATV system operating within the "Grade A contour" of a television station in one of the 100 largest television markets is prohibited from extending the signals of distant television stations beyond its "Grade B contour"5 unless the Commission has previously determined, after a full evidentiary hearing, that such carriage will be "consistent with the public interest, and specifically the establishment and healthy maintenance of television broadcast service in the area." 47 C.F.R. § 74.1107 (Supp.1967).6 Thus the Commission is afforded an opportunity to decide on a case-by-case basis whether the possible adverse effects from CATV on UHF and VHF television service in the particular area are outweighed by the contribution to the public interest which would be made by the proposed CATV service.

In some instances, however, the Commission recognized that it could make this determination without resorting to a full evidentiary hearing. It therefore allowed for waiver of the rules when warranted by the circumstances. 47 C.F.R. § 74.1109 (Supp.1967). Although a petition for waiver may be submitted informally, Section 74.1109(c) (1) provides:

"The petition shall state the relief requested and may contain alternative requests. It shall state fully and precisely all pertinent facts and considerations relied upon to demonstrate the need for the relief requested and to support a determination that a grant of such relief would serve the public interest. Factual allegations shall be supported by affidavit of a person or persons with actual knowledge of the facts, and exhibits shall be verified by the person who prepares them."7

On this appeal it is common ground that Sections 74.1107 and 74.1109 apply to the CATV applications in this case.

II

Appellant is the operator of a VHF station, Channel 9, in Syracuse, New York. Syracuse is ranked as the 35th largest television market and has, in addition to appellant's station, two other VHF stations and two UHF stations, one of which is presently under construction. The Syracuse Urbanized Area, which includes the communities of East Syracuse, Solvay and Camillus, has a population of 333,285.

Oswego, one of the cities to be served by the new CATV and microwave facilities, is located approximately 35 miles from Syracuse in Oswego County, which county has a total population of 86,118. Oswego itself has a population of 22,155. Oswego County is outside the Syracuse Urbanized Area but is part of the Syracuse Metropolitan Statistical Area which has a population of 563,781. Unicable, Incorporated, a CATV system in Oswego, sought permission to carry the "distant" signals of four non-network New York City VHF stations. It also sought a waiver of the evidentiary hearing requirement of Section 74.1107. These "distant" signals were to be supplied by Eastern Microwave, Incorporated and New York-Penn Microwave, which sought permission to construct the facilities necessary to supply the signals in question. In its petition Unicable showed that Oswego is 35 miles from Syracuse; that Oswego is completely separate from Syracuse; that Oswego is on the fringe of the Syracuse stations' Grade A service areas; that, because of the terrain, off-the-air reception of the Syracuse stations, especially the UHF station, is generally poor; that the CATV system presently carries all the Syracuse stations and this aids reception of the UHF station; and that carriage of "distant" signals is needed to make the system economically viable. This petition was supported by the affidavit of Richard Conde, president of Unicable.

Oppositions to Unicable's petition for waiver were filed by appellant and by Meredith Syracuse Television Corporation, licensee of a VHF station, and Channel 30, Inc., an applicant for UHF television Channel 43 in Syracuse.8 These oppositions contended that the waiver petition failed to satisfy the showing necessary for waiver, and Channel 30, the UHF applicant, specifically opposed any fragmentation of the Syracuse market by the importation of distant signals. On this basis the Commission found:

"* * * Since Unicable\'s system is in the relatively small community of Oswego on the fringe of the Syracuse market, its carriage of New York City independents and educational signals in order to provide diversified programming to Oswego viewers will have slight, if any, impact upon UHF development in the market. Under these circumstances, carriage of the New York City signals in Oswego will have little impact upon the development of UHF television in Syracuse, and will offer Oswego viewers more diversified programming. * * *"

Having found the carriage of the "distant" signals to be warranted, the Commission granted the requests of New York-Penn and Eastern Microwave for permission to construct the necessary microwave facilities.

Auburn, the other city to served by CATV and microwave facilities, has a population of approximately 34,200. It is located about 25 miles from Syracuse in Cayuga County which has a population of about 74,000. It is not part of the Syracuse Urbanized Area or the Syracuse Metropolitan Statistical Area. In its petition for waiver of the evidentiary hearing requirement of Section 74.1107 which accompanied its application for permission to import three "distant" signals from New York City, Auburn Cablevision alleged that carriage of these stations would improve their reception in Auburn; that the Syracuse stations receive no advertising revenue from Auburn; that Syracuse and Auburn are quite separate from both a geographic and a realistic viewpoint; and that the Syracuse stations do not program for Auburn. It further stated that carriage of the Syracuse UHF stations could only serve to enhance those stations' positions in Auburn. This was all attested to in the affidavit of Floyd J. Keesee, secretary-treasurer of Auburn Cablevision. The petition of General Electric Cablevision for waiver of the Commission's rules and permission to carry three New York City stations and one Canadian station in Auburn was found defective. Nevertheless, the Commission considered the petition in the light of the more detailed showing made by Auburn Cablevision. New York-Penn Microwave sought permission to construct microwave facilities to supply the "distant" signals to these Auburn CATV stations.

Oppositions to these petitions were filed by appellant and by Channel 30, Inc. and Meredith Syracuse Broadcasting System. While generally challenging the adequacy of the petitions for waiver, Channel 30, Inc., then a UHF applicant, specifically stated that it planned a signal adequate to serve Auburn, and opposed any...

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