Jacksonville Journal Co. v. FEDERAL COMMUN. COM'N, 13547

• Decision Date: 29 May 1957
• Docket Number: No. 13547,13548.,13547
• Citation: 101 US App. DC 12,246 F.2d 699
• Parties: The JACKSONVILLE JOURNAL COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Florida-Georgia Television Company, Inc., Intervenor. The JACKSONVILLE JOURNAL COMPANY, Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents, Florida-Georgia Television Company, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

101 US App. DC 12, 246 F.2d 699 (1957)

The JACKSONVILLE JOURNAL COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Florida-Georgia Television Company, Inc., Intervenor.

The JACKSONVILLE JOURNAL COMPANY, Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents, Florida-Georgia Television Company, Inc., Intervenor.

Nos. 13547, 13548.

United States Court of Appeals District of Columbia Circuit.

Argued April 3, 1957.

Decided May 29, 1957.

Mr. William C. Koplovitz, Washington, D. C., with whom Messrs. William J. Dempsey and Frederick H. Walton, Jr., Washington, D. C., were on the brief, for appellant in case No. 13,547 and petitioner in case No. 13,548.

Mr. Robert M. Ague, Jr., Counsel, Federal Communications Commission, a member of the bar of the Supreme Court of Wisconsin, pro hac vice, by special leave of Court, with whom Messrs. Warren E. Baker, General Counsel, Federal Communications Commission, Richard A. Solomon, Asst. General Counsel, Federal Communications Commission, and Daniel R. Ohlbaum, Counsel, Federal Communications Commission, were on the brief, for appellee in case No. 13,547 and respondent Federal Communications Commission in case No. 13,548. Mr. J. Smith Henley, Asst. General Counsel, Federal Communications Commission at the time record was filed, also entered an appearance for appellee in case No. 13,547 and respondent Federal Communications Commission in case No. 13,548.

Mr. Daniel M. Friedman, Attorney, Department of Justice, entered an appearance for respondent, United States of America, in case No. 13,548.

Mr. Bernard Koteen, Washington, D. C., with whom Mr. Alan Y. Naftalin, Washington, D. C., was on the brief, for intervenor, Florida-Georgia Television, Inc.

Before FAHY, WASHINGTON and DANAHER, Circuit Judges.

WASHINGTON, Circuit Judge.

This case forms part of the general UHF-VHF television controversy described in Coastal Bend Television Co. v. Federal Communications Commission, 1956, 98 U.S.App.D.C. 251, 234 F.2d 686.

After our decision in Coastal Bend, the Federal Communications Commission on June 26, 1956, issued a Report and Order dealing with the "intermixture" problem. 13 Pike & Fischer RR 1571. That Report and Order, which was based on a general rule-making proceeding, concluded that the intermixture of UHF and VHF channels was, on a nation-wide basis, a failure. On the same day, June 26, the Commission instituted some thirteen separate rule-making proceedings to deal with UHF-VHF problems which had arisen in a like number of communities, with the stated purpose of bringing about de-intermixture there.

The present appellant-petitioner, Jacksonville Journal Company, operates a UHF station (WJHP) in Jacksonville, Florida. Intervenor, Florida-Georgia Television Company, Inc., is the successful applicant for a VHF license on Channel 12 in Jacksonville in adjudicatory proceedings, involving a number of applicants, which were still pending when the Commission issued its Report and Order of June 26.

On June 29, 1956, appellant-petitioner filed with the Commission a "Petition for Rule Making and Request for Stay". After pointing out that Jacksonville was not one of the thirteen communities for which the Commission had authorized separate rule-making proceedings, it argued that the situation in Jacksonville was similar in all relevant respects to that prevailing in the thirteen areas which the Commission had chosen, and requested that immediate steps be taken to "de-intermix" Jacksonville, suggesting plans whereby that result might be accomplished. It went on to request that rule-making proceedings be commenced for Jacksonville, and that pending the conclusion of such proceedings the Commission withhold any grant on Channel 12 in the pending adjudicatory proceedings. The petition requested, in the alternative, that any grant made "be conditioned in such a manner as to prohibit commencement by the successful applicant of commercial operation until after a final order in the rule making proceeding instituted pursuant to the instant petition." Oppositions to appellant's petition and proposals were filed by the competing Channel 12 applicants. On August 31, 1956, the Commission granted Channel 12 in Jacksonville to Florida-Georgia Television Company, Inc. It did not stay the grant, or condition operation, along the lines proposed by appellant. It further entered an order denying "that portion of the petition for rule making and request for stay filed on June 29, 1956 by The Jacksonville Journal Company which requests a stay or a conditional grant" in the adjudicatory proceedings.

The appeal in No. 13,547 is from the decision and order of the Commission granting the application of Florida-Georgia Television Company, Inc. (intervenor here), for a construction permit for a television...