Community Television, Inc. v. United States

• Decision Date: 07 February 1969
• Docket Number: No. 9954.,9954.
• Parties: COMMUNITY TELEVISION, INC., d/b/a Laramie Community TV Company, Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents. Frontier Broadcasting Company, Intervenor.
• Court: U.S. Court of Appeals — Tenth Circuit

404 F.2d 771 (1969)

COMMUNITY TELEVISION, INC., d/b/a Laramie Community TV Company, Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents.

Frontier Broadcasting Company, Intervenor.

No. 9954.

United States Court of Appeals Tenth Circuit.

January 3, 1969.

Rehearing Denied February 7, 1969.

George M. McMillan, Salt Lake City, Utah (William J. Potts, Jr., and Henry A. Solomon, Washington, D. C., with him on the brief) for petitioner.

Stuart F. Feldstein, Counsel, F. C. C., Washington, D. C. (Edwin M. Zimmerman, Asst. Atty. Gen., Howard E. Shapiro, Atty., Dept. of Justice, Washington, D. C., Henry Geller, Gen. Counsel, John H. Conlin, Associate Gen. Counsel, Federal Communications Commission, Washington, D. C., with him on the brief) for respondents.

Arthur B. Goodkind, Washington, D. C. (Alan Y. Naftalin, Washington, D. C., with him on the brief), for intervenor.

Before LEWIS, SETH and HICKEY, Circuit Judges.

HICKEY, Circuit Judge.

This is a petition to review two orders of the Federal Communications Commission which denied a waiver of the non-duplication rule promulgated by the Commission.

The issues presented are whether the action of the Commission was arbitrary and capricious when it denied the temporary waiver, and whether it was proper for the Commission to deny the requested waiver without a hearing?

Frontier Broadcasting Company, intervenor herein, operates KFBC-TV in Cheyenne, Wyoming, which carries the program service of all three major television networks. Petitioner, Community Television, Inc., d/b/a Laramie Community TV Company, operates a community antenna television system (CATV)¹ which transmits, by cable, the signals of KFBC, plus the signals of several other stations to the residents of Laramie, Wyoming. Some of the other stations also broadcast the programs of the major networks which means that much of what is broadcast by KFBC is duplicated at the same time by the broadcasts of the other stations. There are also in operation in Laramie three television broadcast translator stations² that are licensed to Laramie Plains Antenna TV Association, Inc. These translators also transmit the signals of the national networks.

In the spring of 1966, Frontier requested petitioner to conform to the non-duplication requirement of Section 74.1103³ of the Rules and Regulations of the Federal Communications Commission. Petitioner immediately filed a petition for temporary waiver of the non-duplication rule with the Federal Communications Commission on the basis that the non-duplication rule does not prohibit the translator system from duplicating programs and therefore petitioner's compliance with the rule would subject it to an unfair competitive practice.

The Commission denied the petition for waiver and a subsequent petition for reconsideration was likewise denied. Petitioner now comes to this court for a review of the denials of waiver.

Petitioner relies upon Presque Isle TV Co. v. United States,⁴ for the proposition that the Commission erred in denying the requested waiver without a hearing. The Presque Isle case, however, is not determinative of the present case because it involves a factual situation which does not fit within the explicit terms of the rules of the Commission. In the case of Conley Electronics Corp. v. F. C. C.⁵ the court provided that when a rule, such as the non-duplication rule, is promulgated in a valid rule-making proceeding it may be generally applied by the Commission without a hearing. The court then went on to hold that the failure of the Commission to provide for a hearing before ordering the appellant therein to comply with the non-duplication rule was proper and not a violation of the Communications Act, the Administrative Procedure Act or due process. The Presque Isle case is also distinguished for the same reason in footnote 6 of Wheeling Antenna Co. v. United States.⁶ Petitioner's contention is therefore without merit and the Commission's denial of the requested waiver without a hearing was proper.

Petitioner raises the further contention that the Commission's ruling was arbitrary and capricious in that it lacked a rational basis and was discriminatory against petitioner. In order to meet this contention, it is necessary to examine translator systems in relation to CATV systems.

Translators do not generate any revenue and are generally operated by non-profit corporations or associations and built by subscription or operated by public bodies.⁷ In order to intercept a...