Greater Boston Television Corporation v. FCC, 17785

Citation444 F.2d 841
Decision Date13 November 1970
Docket Number23154,No. 17785,17788,23172.,23159,17785
PartiesGREATER BOSTON TELEVISION CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WHDH, Inc., a Massachusetts Corporation, Intervenor. WHDH, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Greater Boston Television Corporation, a Massachusetts Corporation, Intervenor. CHARLES RIVER CIVIC TELEVISION, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WHDH, Inc., Boston Broadcasters Inc., Intervenors. WHDH, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Boston Broadcasters, Inc., Intervenor. GREATER BOSTON TV CO., Inc., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WHDH, Inc., Boston Broadcasters Inc., Intervenors.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)


Mr. J. Joseph Maloney, Jr., Boston, Mass., for appellant in Nos. 17,785 and 23,172 and intervenors in No. 17,788.

Mr. William J. Dempsey, Washington, D.C., with whom Messrs. William C. Koplovitz, J. Richard Carr and John J. Dempsey, Washington, D.C., were on the brief, for appellant in Nos. 17,788 and 23,159 and intervenor, WHDH, in Nos. 17,785, 23,154 and 23,172. Mr. Harry J. Ockershausen, Washington, D.C., was also on the brief for appellant in No. 17,788.

Mr. Harry M. Plotkin, Washington, D.C., with whom Messrs. Thomas Schattenfield, and William L. Fishman, Washington, D.C., were on the brief, for appellant in No. 23,154.

Mr. Henry Geller, General Counsel, Federal Communications Commission, with whom Messrs. John H. Conlin, Associate General Counsel, Edward J. Kuhlmann and Mrs. Lenore G. Ehrig, Counsel, Federal Communications Commission, were on the brief, for appellee.

Mr. Benito Gaguine, Washington, D. C., with whom Mr. Donald E. Ward, Washington, D.C., was on the brief, for intervenor, Boston Broadcasters Inc., in Nos. 23,154, 23,159 and 23,172.

Messrs. Vincent B. Welch and Gerald S. Rourke, Washington, D.C., filed a brief on behalf of Hampton Roads Television Corporation and Community Broadcasting of Boston, Inc., as amici curiae.

Before TAMM, LEVENTHAL and MacKINNON, Circuit Judges.

Certiorari Denied June 14, 1971. See 91 S.Ct. 2229, 2233.

LEVENTHAL, Circuit Judge:

This appeal marks the culmination of a sixteen year struggle to determine the licensee to operate a television station on Channel 5 in Boston. Rivals for the license have been before this court on three previous occasions.

The Federal Communications Commission previously made a limited award to WHDH, Inc., and that company has been operating the station, WHDH, under temporary authorization. In the decision now under appeal, the Commission, after an extensive comparative hearing, approved the application of Boston Broadcasters, Inc. (BBI), and denied the mutually exclusive applications of WHDH, Inc., Charles River Civic Television, Inc., and Greater Boston Television Corp. (II). 16 F.C.C.2d 1, (January 22, 1969). This result was adhered to on reconsideration by the Commission, although the petition for rehearing filed by WHDH was granted in part. 17 F. C.C.2d 856 (May 19, 1969). We affirm the decision of the Commission.

A. Historical Background

The initial proceeding to select a licensee to operate on Channel 5 in Boston began in 1954 with consideration of four mutually exclusive applications. Three years later, the Commission announced the granting of the application of WHDH, Inc., a wholly owned subsidiary of the corporate publisher of the Boston Herald-Traveler newspaper. 22 F.C.C. 767. The station began broadcasting in the same year. While the decision was on appeal in this court, it came to the court's attention that the Commission's award might be subject to an infirmity by virtue of improper ex parte contacts with the Chairman of the Commission. Retaining jurisdiction, we remanded to the Commission for an evidentiary hearing. Massachusetts Bay Telecasters, Inc. v. F.C.C., 104 U.S.App.D.C. 226, 261 F.2d 55 (1958), cert. denied, 366 U.S. 918, 81 S.Ct. 1094, 6 L.Ed.2d 241 (1961).

At the supplemental hearing before a Special Hearing Examiner, Honorable Horace Stern, formerly Justice of the Pennsylvania Supreme Court, it developed, inter alia, that during the pendency of the initial license proceedings, Mr. Robert Choate of WHDH, Inc., had arranged two luncheons with Mr. George C. McConnaughey, then Chairman of the FCC. The first of these, in the winter of 1954-55, was used by Mr. Choate for the simple purpose of "sizing up" the new chairman. The second, however, in the spring of 1956 (after the initial hearing examiner's decision favoring another applicant, but before oral argument on exceptions to that decision), was arranged to allow Mr. Choate to discuss certain legislative matters, unspecified in advance, with Mr. McConnaughey. The matters in question proved to be the Harris-Beamer bills, which would have limited the Commission in its policy of encouraging the diversification of ownership of mass media of communication, and which had been opposed in Mr. McConnaughey's testimony before Congress. At the second luncheon Mr. Choate attempted to hand Mr. McConnaughey a draft amendment to the pending bills, which he hoped would moderate the Chairman's opposition. The Chairman, however, rebuffed Mr. Choate's attempt at discussion, and later called public attention to the matter in testimony before the House Committee on Legislative Oversight.

The Special Hearing Examiner concluded that WHDH's construction permit should be allowed to stand, that Choate could not fairly be condemned as having made an improper attempt to influence the Commission as to this particular adjudication, that there was no reason for the Chairman or any other member of the Commission to disqualify himself from participation, and that the award made to WHDH was neither void nor voidable. The Commission felt otherwise. It discerned a meaningful and improper, albeit subtle, attempt to influence the Commission, and condemned it as an effort that "does violence to the integrity of the Commission's processes." See note 36, infra. It filed its report with this court — which had retained jurisdiction over the original appeal, and ordered the status quo maintained. The Commission's finding and report concluded that while the original grant to WHDH was not void ab initio, it was voidable and action should be taken to set it aside, that the conduct of WHDH while not disqualifying had been such as to reflect adversely upon it in the comparison of applicants. The course which the Commission concluded represented the best exercise of its discretion consisted of setting aside the permit; granting at the same time a special temporary authorization for WHDH to continue broadcasting on Channel 5; and reopening the entire proceeding for a comparative proceeding between WHDH and the other applicants then before it. 29 F.C.C. 204 (1960). We approved the plan and remanded accordingly, Massachusetts Bay Telecasters, Inc. v. F.C.C., 111 U.S.App.D.C. 144, 295 F.2d 131, cert. denied, 366 U.S. 918, 81 S.Ct. 1094, 6 L.Ed.2d 241 (1961).

In October, 1961, the Commission held new hearings, this time among three of the four original applicants. On September 25, 1962, it again awarded a construction permit to WHDH. 33 F.C.C. 449. It ascribed a demerit to WHDH because of Choate's improper approaches to the Commission Chairman. In the same order it made a grant to WHDH of an operating license for only four months — stating that it was exercising its discretion to grant a license for such a short term, as contrasted with the 3-year term permissible and normally provided, because it believed this in the public interest due to "the inroads made by WHDH upon the rules governing fair and orderly adjudication." 33 F.C.C. at 454. In 1963, after WHDH filed for its renewal, the FCC took the unusual step of assuring that comparative consideration would be given to competing applications filed within a specified 60-day "safe" period. By order of October 24, 1963, it designated for comparative hearing the WHDH renewal and the mutually exclusive applications filed during that period by BBI (intervenor before this court) and Charles River and Greater Boston TV Corp. (II), appellants, for determination, on a comparative basis, which of the proposed operators would best serve the public interest in the light of significant differences among applicants as to (a) background and experience bearing on ability to operate the TV station; and (b) proposals for management and operation of the proposed TV station; and (c) proposed programming. 1 R.R.2d 468, 472.

Meanwhile, the grant of the 4-month license had been appealed to this court, both by WHDH (which protested the conclusion of impropriety on the part of Choate and the short term of the license) and by Greater Boston TV Corp. (I). On December 21, 1963, while this appeal was pending, Mr. Choate died. We remanded again to determine what effect his death would have on the awards. Being aware of the impending comparative hearings on the renewal of WHDH's temporary license, we authorized the Commission to combine the renewal proceedings with the proceedings, on remand, for reconsideration of the award of the construction permit and the 4-month operating license, both to be conducted on a comparative basis assessing the public interest in the light of the absence of Mr. Choate. Greater Boston Television Corp. v. F.C.C., 118 U.S.App. D.C. 162, 334 F.2d 552 (1964).

B. The Current Comparative Proceeding

The consolidated comparative proceeding authorized by this court began in May, 1964, and there was full presentation by WHDH and the other three applicants.

1. Hearing Examiner's Decision

On August 10, 1966, Hearing...

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