General Electric Co. v. Federal Radio Commission

• Decision Date: 25 February 1929
• Docket Number: No. 4870,4871,4880.,4870
• Parties: GENERAL ELECTRIC CO. v. FEDERAL RADIO COMMISSION (two cases). PEOPLE OF STATE OF NEW YORK v. FEDERAL RADIO COMMISSION.
• Court: U.S. Court of Appeals — District of Columbia Circuit

31 F.2d 630 (1929)

GENERAL ELECTRIC CO. v. FEDERAL RADIO COMMISSION (two cases).

PEOPLE OF STATE OF NEW YORK v. FEDERAL RADIO COMMISSION.

Nos. 4870, 4871, 4880.

Court of Appeals of District of Columbia.

Submitted December 4, 1928.

Decided February 25, 1929.

Petition for Rehearing Denied March 9, 1929.

In No. 4870:

Frank J. Hogan, of Washington, D. C., Stephen H. Philbin and Charles E. Hughes, both of New York City, and John W. Guider, of Washington, D. C., for appellant.

In No. 4871:

Henry S. Manley, of Delmar, N. Y., for appellant.

In No. 4880:

John W. Guider and Frank J. Hogan, both of Washington, D. C., and Charles E. Hughes, of New York City, for appellant.

In Nos. 4870, 4871, 4880:

Louis G. Caldwell, of Chicago, Ill., Donald D. Hughes, of Dayton, Ohio, and Bethuel M. Webster, Jr., Sp. Asst. to Atty. Gen., for appellee.

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

MARTIN, Chief Justice.

These appeals are brought under section 16 of the Radio Act of 1927 (44 Stat. 1169 47 USCA § 96), for a review of a decision of the Federal Radio Commission whereby the commission refused the application of appellant for a renewal of its broadcasting license, dated November 1, 1927, for the operation of station WGY, located at Schenectady, N. Y., with permission to use 50 KW power, at a frequency of 790 kilocycles, and without limitation as to time of operation. The novelty of this subject justifies a preliminary reference to the controlling statutes, and also a statement of certain elementary facts, drawn in part from the record and in part from common knowledge and public history.

The electric impulses which carry sounds when broadcast proceed through the "ether" in waves which move at a distance of 300,000,000 meters per second. The length of the waves may be measured by scientific instruments, likewise the number of waves produced each second; the latter measurement is called the "frequency" of a station, the former its "wave length." A vast demand is made for the use of the ether for various purposes, of which broadcasting is only one. In the present state of the art the broadcasting band is limited to frequencies extending from 550 to 1,500 kilocycles per second, or, if stated in wave lengths, from 545 to 200 meters. It is conceded that, in order to avoid interference between stations when broadcasting at the same time, there should be a difference of 10 kilocycles between the frequencies respectively employed by them; otherwise they will interfere with one another and cannot be clearly distinguished by the receiver. It follows that there are but 96 practicable frequencies, or so-called wave channels, employed in broadcasting as at present carried on. Six of these channels have been set aside for the exclusive use of stations in Canada, with the result that only 90 remain for use in the United States.

It is agreed that certain broadcasting stations, employing high power, should be recognized as national, and be given the exclusive use of appropriate frequency bands, in order to avoid interference with one another and with smaller stations; while certain other stations, recognized as regional or local, operate with less power, and for this reason, and because of relative geographical locations, may operate with the same frequency without serious interference with one another. It is well known that the time of day or night which may be allotted to a broadcasting station is a factor of importance in its operation. Owing to the fact that the sun's rays absorb the broadcasting waves, there is less interference among stations in the daytime than at night. The greater audiences, however, listen in to radio programs between sundown and midnight, and from September until March, and accordingly that period is the most advantageous for operation.

On August 13, 1912, Congress passed "An act to regulate radio communication" (37 Stat. 302), which was the first general law upon the subject, and was in force from its date until the passage of the act of 1927. The art of broadcasting, however, as now understood, had not then been developed, as appears from the following extract from the report of the Senate committee upon the bill:

"The term `radio communication' instead of `radio telegraphy' is used throughout the bill, so that its provisions will cover the possibility of the commercial development of radio telephony. Section 6, p. 14. Experiments have been made here and abroad for some years in carrying the human voice on Hertzian waves, but with only limited and occasional results. Radio telephony involves the application of the same principles as are involved in inventions to enable apparatus to select and record accurately one message on a given wave length out of a mass of messages on various lengths. When this latter result has been attained — an unfulfilled promise of some years' standing — radio telephony will quickly follow. The bill is framed to be adjusted to that improvement when it comes, but in the meantime it deals with the art as it exists to-day." Senate Report 698, Sixty-Second Congress, Second Session, pp. 5, 7.

The "unfulfilled promise" thus referred to was finally fulfilled, and the first broadcasting station in the United States was constructed in the year 1920. Other similar stations rapidly followed, and, owing to the lack of effective regulation under the act of 1912, a chaotic condition known as the "breakdown of the law" ensued, and the usefulness of the art was for the time being seriously impaired.

In order to correct this condition Congress enacted the Act of February 23, 1927, entitled "An act for the regulation of radio communications, and for other purposes" (44 Stat. 1162 47 USCA § 81 et seq.). This act, which is yet in force, forbids all radio broadcasting in this country, except under and in accordance with a license granted under the provisions of the act. For the purposes of the act the United States is divided into five zones, the first zone including the state of New York and certain other Northeastern states, while the fifth zone includes the state of California and certain other Western states. The act establishes the Federal Radio Commission, with power to classify radio stations, to prescribe the nature of the service or class of stations, to assign bands of frequencies or wave lengths to the various stations or classes of stations, and determine the power which each station shall use and the time during which it shall operate, to determine the location of classes of stations or individual stations, and to make such regulations not inconsistent with law as it may deem necessary to prevent interference between stations and to carry out the purposes of the act, provided, however, that changes in the wave lengths, authorized power, in the character of emitted signals, or in the times of operation of any station, shall not be made without the consent of the station licensee unless, in the judgment of the commission, such changes will promote public convenience or interest, or will serve public necessity or more fully comply with the provisions of the act. The act provides that the licensing authority, if public convenience, interest, or necessity will be served thereby, subject to the limitations of the act, shall grant to any applicant therefor a station license provided for by the act, and that in considering applications for licenses, when and in so far as there is a demand for the same, the licensing authority shall make such a distribution of licenses, bands of frequency, or wave lengths, periods of time for operation, and of power among the different states and communities as to give fair, efficient, and equitable radio service to each of the same.

The act provides that no license for the operation of a broadcasting station shall be for a longer term than three years, and upon the expiration of any license, upon application therefor, a renewal of such license may be granted from time to time for a term of not to exceed 3 years; and no renewal of an existing station license shall be granted more than 30 days prior to the expiration of the original license. The act also provides that if upon examination of any application for a station license, or for the renewal or modification of such...