Chicago Federation of Labor v. Federal Radio Commission, 4972.

• Decision Date: 05 May 1930
• Docket Number: No. 4972.,4972.
• Citation: 59 App. DC 333,41 F.2d 422
• Parties: CHICAGO FEDERATION OF LABOR v. FEDERAL RADIO COMMISSION (ATLASS CO., Inc., Intervener).
• Court: U.S. Court of Appeals — District of Columbia Circuit

59 App. DC 333, 41 F.2d 422 (1930)

CHICAGO FEDERATION OF LABOR v. FEDERAL RADIO COMMISSION (ATLASS CO., Inc., Intervener).

No. 4972.

Court of Appeals of District of Columbia.

Argued April 7, 1930.

Decided May 5, 1930.

Thomas E. Lodge and Maurice Rabinovitz, both of Washington, D. C., and Hope Thompson, of Chicago, Ill., for appellant.

Bethuel M. Webster, Jr., Paul D. P. Spearman, Ralph L. Walker, Thad H. Brown, Thomas P. Littlepage, and John M. Littlepage, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice.

Appeal from an order of the Federal Radio Commission denying an application of the Chicago Federation of Labor for a modification of the broadcasting license of station WCFL.

It appears from the record that station WCFL was constructed in the year 1926 under a license issued by the Department of Commerce to the Chicago Federation of Labor, authorizing it to broadcast upon a frequency of 610 kilocycles. In November, 1928, the Federal Radio Commission ordered the station to operate on frequency 970 kilocycles, with power of 1,500 watts, with daytime operation only, and not to broadcast in the evening later than sunset on the Pacific Coast. The station has since continued to broadcast subject to these conditions.

In October, 1928, the station filed an application for a modification of its license whereby its frequency should be changed from 970 kilocycles to 770 kilocycles, its power increased from 1,500 watts to 25,000 watts, and unlimited time of operation should be granted to it. The application was heard upon evidence by the Commission and was overruled. The present appeal from that ruling was taken under section 16, Radio Act of 1927, 44 Stat. 1162 (47 USCA § 96).

It appears from the record that frequency 770 kilocycles, which appellant is applying for in this proceeding, is a cleared channel allocated by the Commission to the Fourth Zone. That zone includes the states of Illinois, Nebraska, Indiana, Wisconsin, North Dakota, Minnesota, South Dakota, Iowa, Kansas, and Missouri. The allocation was made on September 8, 1928, pursuant to the Commission's General Order No. 40, promulgated by authority of the Radio Act of 1927, as amended by the Act of March 28, 1928, 45 Stat. 373 (47 USCA § 81 et seq.). Under the provisions of this allocation, frequency 770 was granted to station WBBM owned by the Atlass Company, Inc., of Chicago, with power of 25,000 watts, with the privilege of operating four-sevenths time; and the remaining three-sevenths time upon the frequency was granted to station KFAB, located at Lincoln, Neb., owned by the Nebraska Buick Auto Company, and operated with 5,000 watts power. The latter station is the only one which operates in the state of Nebraska with high power upon a cleared channel.

It is manifest that if the frequency in controversy, to wit, 770 kilocycles, be granted to station WCFL for full time operation as contended for by that station, it means that stations WBBM and KFAB shall be denied the use of the frequency which they have hitherto enjoyed, without being given any substitute therefor in this proceeding. In the present overcrowded condition of the broadcast band, and in view of the fact that the Fourth Zone already enjoys more than its proportionate share of cleared channels, the result would be that these two stations would be deprived of the broadcasting privileges now enjoyed by them, with but little hope for improvement in the future.

The record discloses that...