Fort Harrison Telecasting Corporation v. FCC

• Decision Date: 27 June 1963
• Docket Number: 17356,17380.,No. 17279,17279
• Citation: 116 US App. DC 347,324 F.2d 379
• Parties: FORT HARRISON TELECASTING CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Illiana Telecasting Corporation, Wabash Valley Broadcasting Corporation, Intervenors. 220 TELEVISION, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Broadcasting-Paramount Theatres, Inc., Signal Hill Telecasting Corporation, Intervenors. SANGAMON VALLEY TELEVISION CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Signal Hill Telecasting Corporation, Illiana Telecasting Corporation, American Broadcasting-Paramount Theatres, Inc., Plains Television Corporation, 220 Television, Inc., The State of Illinois, Metromedia, Inc., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

116 US App. DC 347, 324 F.2d 379 (1963)

FORT HARRISON TELECASTING CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Illiana Telecasting Corporation, Wabash Valley Broadcasting Corporation, Intervenors.

220 TELEVISION, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Broadcasting-Paramount Theatres, Inc., Signal Hill Telecasting Corporation, Intervenors.

SANGAMON VALLEY TELEVISION CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Signal Hill Telecasting Corporation, Illiana Telecasting Corporation, American Broadcasting-Paramount Theatres, Inc., Plains Television Corporation, 220 Television, Inc., The State of Illinois, Metromedia, Inc., Intervenors.

Nos. 17279, 17356, 17380.

United States Court of Appeals District of Columbia Circuit.

Argued April 18, 1963.

Decided June 27, 1963.

Petition for Rehearing Petitioner Denied September 25, 1963.

Petitions for Rehearing Petitioner Denied November 6, 1963.

Mr. H. Ralph Johnston, of the bar of the Supreme Court of Indiana, Terre Haute, Ind., pro hac vice, by special leave of court, with whom Messrs. Edward F. Kenehan and Henry R. Goldstein, Washington, D. C., were on the brief, for petitioner in No. 17,279.

Mr. Alan Y. Naftalin, Washington, D. C., with whom Mr. Bernard Koteen, Washington, D. C., was on the brief, for petitioner in No. 17,356.

Mr. D. M. Patrick, Washington, D. C., with whom Messrs. Stanley S. Harris, Washington, D. C., and Jay E. Ricks were on the brief, for petitioner in No. 17,380.

Mr. Daniel R. Ohlbaum, Assoc. Gen. Counsel, with whom Mr. Max D. Paglin, Gen. Counsel, and Mrs. Louise H. Renne, Counsel, Federal Communications Commission, were on the brief, for respondent Federal Communications Commission. Mrs. Ruth V. Reel, Counsel, Federal Communications Commission, also entered an appearance in Nos. 17,279 and 17,356.

Mr. Lionel Kestenbaum, Attorney, Department of Justice, was on the brief for respondent United States of America.

Mr. Thomas H. Wall, Washington, D. C., with whom Mr. John B. Jacob, Washington, D. C., was on the brief, for intervenor Illiana Telecasting Corp. in Nos. 17,279 and 17,380.

Mr. Michael H. Bader, Washington, D. C., for intervenor Wabash Valley Broadcasting Corp., in No. 17,279. Messrs Andrew G. Haley and William J. Potts, Jr., Washington, D. C., were on the brief for intervenor Wabash Valley Broadcasting Corp. in No. 17,279.

Mr. Vernon L. Wilkinson, Washington, D. C., with whom Mr. James A. McKenna, Jr., Washington, D. C., was on the brief, for intervenor American Broadcasting-Paramount Theatres, Inc., in No. 17,356, and intervenors American Broadcasting Paramount Theatres, Inc., Plains Television Corp. and Metromedia, Inc., in No. 17,380. Mr. David S. Stevens, Washington, D. C., also entered an appearance for intervenor Plains Television Corp.

Mr. Monroe Oppenheimer, Washington, D. C., with whom Mr. Isadore G. Alk, Washington, D. C., was on the brief, for intervenor Signal Hill Telecasting Corporation in Nos. 17,356 and 17,380.

Mr. Maxwell Brooks Byus, Springfield, Ill., for intervenor State of Illinois in No. 17,380.

Before BAZELON, Chief Judge, and WASHINGTON and WRIGHT, Circuit Judges.

Petition for Rehearing En Banc by Petitioner in No. 17,380 Denied September 25, 1963.

Petitions for Rehearing En Banc by Petitioner in No. 17,356 and by State of Illinois, Intervenor in No. 17,380 Denied November 6, 1963.

WASHINGTON, Circuit Judge.

These cases present questions arising from the action of the Federal Communications Commission in transferring from Springfield, Illinois, the only VHF channel (Channel 2) allocated to that city, and substituting two UHF channels.¹ Channel 2 was reallocated to St. Louis, Missouri, and Terre Haute, Indiana. Both the removal of the channel from Springfield and the reallocation to St. Louis and Terre Haute are challenged here. Related matters are also raised.

I.

The controversy has a long history. On April 14, 1952, the Federal Communications Commission issued its "Sixth Report and Order," completing a national television allocation plan for the 12 VHF channels and 70 UHF channels. This report and order put into effect a policy of "intermixing," that is, allocating both VHF and UHF channels to the same communities. VHF Channel 2 was allocated for use at Springfield, Illinois, along with two UHF channels. At that time the Sangamon Valley Television Company (hereafter referred to as Sangamon), the petitioner in No. 17,380, which had previously applied for authority to construct and operate a television broadcast station at Springfield, amended its application to request the use of VHF Channel 2 at Springfield. It is now the only applicant for such use.² Channel 2 has not been in actual use in Springfield.

On March 1, 1957, the Commission issued a Report and Order amending the allocation plan adopted in 1952. This order adopted a policy of "deintermixing," and began the process of assigning only VHF channels or only UHF channels to a given community.³ In this order the Commission took VHF Channel 2 from Springfield and assigned it for use in St. Louis, Missouri, and Terre Haute, Indiana. In place of VHF Channel 2, it allocated to Springfield two more UHF channels: No. 36 and No. 26. On Sangamon's appeal this court held that the order deintermixing Springfield was not arbitrary, capricious, or inconsistent with Section 307(b) of the Communications Act. Sangamon Valley Television Corp. v. United States, 103 U.S.App.D.C. 113, 255 F.2d 191 (1958). The case was, however, remanded to us by the Supreme Court, 358 U.S. 49, 79 S.Ct. 94, 3 L.Ed. 2d 47 (1958), because of certain testimony given before a congressional committee subsequent to our decision. We thereupon vacated the Commission's order of March 1, 1957, and remanded the case for an evidential hearing as to the ex parte approaches made to the Commissioners in connection with the 1957 Report and Order, as revealed in the cited testimony. Sangamon Valley Television Corp. v. United States, 106 U.S. App.D.C. 30, 269 F.2d 221 (1959). We later directed that an entirely new proceeding be conducted to determine where and to whom VHF Channel 2 should be assigned. Sangamon Valley Television Corp. v. United States, 111 U.S.App.D.C. 113, 294 F.2d 742 (1961).

The Commission initiated and conducted another proceeding relating to Channel 2, and in a Report and Order issued July 20, 1962, reached the same conclusions as in its 1957 order: that VHF Channel 2 should be taken from Springfield, Illinois, and be given to St. Louis, Missouri, and Terre Haute, Indiana, and that in compensation Springfield should be awarded UHF Channels 26 and 36.⁴

II.

In No. 17,380, Sangamon and the State of Illinois as intervenor have appealed as to the action taken in the 1962 order insofar as it affects Springfield. The parties have stipulated that the questions presented are (1) whether the Commission's action in deleting the only VHF channel assigned to Springfield, reassigning it to St. Louis and Terre Haute, and substituting for it in Springfield two UHF channels, violated Section 307(b) of the Communications Act, 47 U.S.C. § 307(b) (1958), and (2) whether in the circumstances this action was arbitrary and capricious.⁵

(1) The principal contention of Sangamon and the State is that Section 307 (b)⁶ was violated because the Commission failed to determine initially whether Springfield on the one hand, or St. Louis and Terre Haute on the other hand, had the greater need for VHF Channel 2, which as a matter of electronic engineering could not be utilized by all three cities.

In Federal Communications Commission v. Allentown Broadcasting Corp., 349 U.S. 358, 75 S.Ct. 855, 99 L. Ed. 1147 (1955), the Supreme Court approved the principle that when mutually exclusive applicants seek authority to construct stations to serve different communities the Commission should first determine which community has the greater need for additional services, and then should determine any other questions presented. See 349 U.S. at 361-362, 75 S.Ct. at 857-858. We do not read Allentown as requiring that the relative needs of two communities for television transmission service be determined solely on the basis of the need for VHF service. Nor has any decision to that effect been cited to us. In Federal Radio Commission v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 281-282, 53 S.Ct. 627, 634-635, 77 L.Ed. 1166 (1933), the Court said, speaking of comparable provisions of the Radio Act of 1927, 44 Stat. 1166:

"We find in the Act no command with the import upon which respondents insist. The command is that there shall be a `fair and equitable allocation of licenses, wave lengths, time for operation and station power to each of the States within each zone.\' It cannot be said that this demanded equality between States with respect to every type of station. * * * In making its `fair and equitable allocations,\' the Commission was entitled and required to consider all the broadcasting facilities assigned to the respective States, and all the advantages thereby enjoyed, and to determine whether, in view of all the circumstances of distribution, a more equitable adjustment would be effected by the granting of the application of Station WJKS and the deletion of Stations WIBO and WPCC." (Emphasis added.)

The quoted language appears equally applicable here. We conclude that so long as the television transmission service allocated to a community, whether it be solely VHF, UHF, or a combination of both, is determined on the basis of relative need, amounts to a fair and equitable distribution of service for that community, in relation to others, and gives efficient service to the community, the standard set out in Section 307(b) is fully met.

We think that the Commission's action here with respect to Springfield — giving it...