Easton Publishing Co. v. Federal Communications Com'n
| Decision Date | 23 October 1950 |
| Docket Number | No. 9829.,9829. |
| Citation | 87 US App. DC 344,185 F.2d 987 |
| Parties | EASTON PUBLISHING CO. v. FEDERAL COMMUNICATIONS COMMISSION et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Eliot C. Lovett, Washington, D.C. for petitioner Easton Publishing Company.
Mr. Max Goldman, Assistant General Counsel, Federal Communications Commission, with whom Mr. Benedict P. Cottone, General Counsel, Federal Communications Commission, Mr. Richard A. Solomon, Counsel, Federal Communications Commission, and Miss Mary Jane Morris, Counsel, Federal Communications Commission, were on the answer, for appellee.
Mr. Donald C. Beelar, with whom Mr. Reed T. Rollo, Washington, D. C., was on the petition, for Allentown Broadcasting Corporation.
Messrs. George O. Sutton, William Thomson and John H. Midlen, all of Washington, D.C., entered appearances for intervenor Associated Broadcasters, Inc.
Before STEPHENS, Chief Judge, and WILBUR K. MILLER and PROCTOR, Circuit Judges.
On June 23, 1947, the Federal Communications Commission, hereafter referred to as the Commission, released an order granting the application of Allentown Broadcasting Corporation for a permit to construct a standard broadcast station at Allentown, Pennsylvania, and denying the applications of Easton Publishing Company and Associated Broadcasters, Inc., for permits to construct a standard broadcast station in Easton, Pennsylvania, and denying the application of Steel City Broadcasting Company for a permit to construct a standard broadcast station in Allentown, Pennsylvania. The four applications were for the use of the same facilities and were mutually exclusive. The Commission stated the basis upon which it acted as follows:
Upon consideration of the size of the two cities, the existing facilities of each and the amount of radio service available to each, we conclude that Allentown is in greater need of another radio station than Easton; that its need for another radio station is greater than Easton's need for extended services from its existing station, WEST; and that the purposes of Section 307 (b) of the Communications Act would be better served by a grant to one of the Allentown applicants than by a grant to either of the Easton applicants.1
On April 13, 1948, the Easton Publishing Company appealed to this court from the Commission's order, and the Allentown Broadcasting Corporation and Associated Broadcasters, Inc., were later permitted to intervene. Steel City Broadcasting Company did not petition for intervention. On May 4, 1949, this court remanded the case to the Commission "for findings upon the comparative needs of the two communities for new radio service and the relative abilities of the applicants to serve the greater need." Easton Publishing Co. v. Federal Communications Com'n (Allentown Broadcasting Corporation et al., Intervenors), 85 U.S. App.D.C. 33, 175 F.2d 344 (1949). In its opinion this court said:
. . . We cannot tell from the findings what caused the Commission to say that Allentown's need was greater. Present and proposed programs would seem to be an essential element in testing comparative community needs from the standpoints of both the receivers and the broadcasters. Appellant urges the point as a factor of weight which was proved in this case. The record contained evidence upon the programs. The Commission made findings as to the composition and character of the program proposals of the two applicants. But it gave no indication of their comparative qualities, or of the lack of any particular type of service in either community, or of the greater ability of either applicant to meet that need.
It may be that the Commission measured the comparative need by the comparative size of the communities. But difference in size does not necessarily spell a difference in need. It is not the court's function to fashion from the evidence the established facts, and from the facts the conclusion. The court looks at the conclusion found by the Commission merely to see that it falls within the perimeter of reason drawn by the findings; and at the findings to see that they have support of substance in the evidence. In the case before us, we cannot tell why the Commission concluded that Allentown had greater need for a new station than did Easton; or, if Allentown's need was greater, why it concluded that the intervenor would supply that need to a greater extent than would the appellant. Therefore, we cannot tell whether the conclusion of greater need by Allentown and the award to intervenor were or were not arbitrary. The case must therefore be remanded for findings upon this phase. 85 U.S.App.D.C. at pp. 37-38, 175 F.2d at pp. 348-349.
On February 20, 1950, the Commission released a memorandum opinion and order setting aside its order of June 23, 1947, and designating the applications for further hearing. The Commission referred to a stipulation which had been filed before it on June 24, 1949, by Easton Publishing Company, Allentown Broadcasting Corporation, and Associated Broadcasters, Inc., from which, according to the Commission's characterization of the stipulation, it appeared that since the Commission's order of June 23, 1947, substantial changes in the corporate structure of both the Easton Publishing Company and the Allentown Broadcasting Corporation had occurred. The Commission concluded that it could not determine whether the public interest, convenience or necessity would be served by a grant of the application of either the Easton Publishing Company or the Allentown Broadcasting Corporation without further proceedings; that the stipulation did not give the Commission information upon which it could conclude that either of those applicants was legally qualified to become a licensee in view of the substantial changes in stock ownership; and that the Commission, because of such changes, had no assurance that the policies proposed by either of those applicants would in fact be the policies of such applicants as presently constituted. The Commission concluded also that the record did not contain information sufficient to enable it to determine on a comparative basis the relative need in Allentown and Easton for additional broadcast service, the program service presently being rendered to the areas and populations proposed to be served by each of the applicants, or the ability of any of the applicants as presently constituted to meet such needs. Accordingly the Commission set aside its order of June 23, 1947, authorized the applicants to file within twenty days such petitions as might be appropriate to seek amendment to bring their applications up to date, reopened the record, and designated the applications for further hearing upon specified issues. Those issues are set forth in the margin.2
Thereupon the Easton Publishing Company and the Allentown Broadcasting Corporation filed motions for leave to file their present petitions in this court. The motions for leave to file were granted and an oral argument was ordered and had upon the petitions. The writs are sought to prevent the Commission from reopening the case and holding a further hearing and to require it to make findings upon the original record as it stood at the time of the remand except as brought up to date by the stipulation of the parties filed with the Commission as above set forth.
We think the petitions for writs of mandamus and prohibition must be denied in view of Federal Communications Commission v. Pottsville Broadcasting Company, 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656 (1940), and Fly v. Heitmeyer, 309 U.S. 146, 60 S.Ct. 443, 84 L.Ed. 664 (1940). In the Pottsville case, the Commission, upon the ground, inter alia, that the Pottsville Company was not financially qualified, had denied its application for a permit to construct a radio broadcast station in Pottsville, Pennsylvania. Upon an appeal this court reversed the Commission, holding that its conclusion that the Pottsville Company lacked financial qualifications was based upon an erroneous view of Pennsylvania law, and ordered the cause remanded to the Commission for reconsideration in accordance with the court's opinion. After this remand, the Pottsville Company petitioned the Commission to grant its original application. Instead of so doing the Commission ordered a consolidated hearing of the Pottsville application with two subsequently filed rival applications for permits to broadcast upon the same facilities, to consider them ...
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