Journal Co. v. Federal Radio Commission

• Decision Date: 02 March 1931
• Docket Number: No. 5095,5163,5268,5269.,5095
• Parties: JOURNAL CO. v. FEDERAL RADIO COMMISSION.
• Court: U.S. Court of Appeals — District of Columbia Circuit

48 F.2d 461 (1931)

JOURNAL CO. v. FEDERAL RADIO COMMISSION.

Nos. 5095, 5163, 5268, 5269.

Court of Appeals of District of Columbia.

Argued February 5, 1931.

Decided March 2, 1931.

Motion for Denied March 21, 1931.

Louis G. Caldwell and Elisha Hanson, both of Washington, D. C., for appellant in all the cases.

Paul D. Spearman, Arthur W. Scharfeld, Thad H. Brown, and D. M. Patrick, all of Washington, D. C., for appellee in No. 5095.

Thad H. Brown, A. W. Scharfeld, and D. M. Patrick, all of Washington, D. C., for appellee in No. 5163.

Thad H. Brown, D. M. Patrick, Ben S. Fisher, and A. W. Scharfeld, all of Washington, D. C., for appellee in Nos. 5268 and 5269.

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

Motion for Specific Directions in Mandate, etc., Denied March 21, 1931.

ROBB, Associate Justice.

Appeals from decisions of the Federal Radio Commission.

Appellant, a Wisconsin corporation, is the publisher of the Milwaukee Journal, a leading newspaper in Wisconsin. It is the owner and operator of broadcasting station WTMJ at Milwaukee, which operates full time on a frequency of 620 kc., with authorized use of 1,000 watts power nighttime, and 2,500 watts daytime. This station and its predecessors in interest have been operating since 1922, under licenses from the Secretary of Commerce and later under licenses from the Radio Commission. The station represents an investment of over $300,000. More than $160,000 has been expended for major station equipment alone. The total gross cost of operating the station is approximately $300,000 per annum, the greater portion of which being for program expenses. It has 48 full-time employees, including an operating staff of 10 skillful technicians, a musical director who devotes all his time to the station's programs, an organist, and a permanent 16-piece orchestra. The pay roll for the year 1929 was $122,796.62.

The evidence clearly establishes (indeed, there is no suggestion to the contrary) that appellant's equipment is modern and satisfactory in every way and that its service has been of a very superior character. Prior to the decisions complained of, its normal and effective service area covered Wisconsin, most of Michigan, portions of Minnesota, Iowa, Illinois, and Indiana, and reached a population of approximately 3,500,000 persons.

On November 11, 1928, when appellant was assigned its present frequency and power (620 kc., with 1,000 watts nighttime and 2,500 watts daytime power), the following stations were assigned the same frequency: Station WLBZ, Dover-Foxcroft, Me., with 250 watts nighttime and 500 watts daytime power; WDAE, Tampa, Fla., and WDBO, Orlando, Fla., dividing time, with 1,000 watts power; KFAD, Phœnix, Ariz., with 500 watts power; and KGW, Portland, Or., with 1,000 watts power. The use of this frequency by the other stations named, owing to the limited power and the location of those stations, did not materially affect the efficiency or restrict the area of service of appellant's station. In reliance upon the conditions thus created and existing, appellant materially improved its equipment and increased its weekly outlay for programs.

Early in April, 1929, appellant learned that station WLBZ (Me.) had applied for an increase of evening power from 250 to 500 watts. The commission's chief engineer wrote appellant that he had opposed the increase because he "did not want the possibility of this station causing a heterodyne in the service area of WTMJ," and inquired as to appellant's views. On April 22, 1929, appellant replied that it was convinced that an increase of WLBZ's power would cause serious heterodyne interference, and appellant therefore protested against the granting of the application on the ground that it would "unduly restrict the service area of WTMJ and damage the one good regional channel which the state of Wisconsin has." Later appellant wrote the commissioner from the Fourth Zone protesting against the granting of any application for privileges on 620 kc. without hearing, and particularly asking to be heard with reference to the application of WLBZ. On August 24, 1929, appellant again wrote the commission regarding a hearing, and the commission replied that the application of WLBZ was to be scheduled for hearing "if the applicant requests a hearing." On October 22, 1929, without notice or opportunity for hearing to appellant, the commission granted the application of WLBZ and authorized the use of 500 watts nighttime power "for remainder of license period provided no interference arises." Appellant learned of this through the press, filed a formal protest, and requested that before the license should be renewed appellant be given an opportunity to be heard. On October 28, 1929, appellant filed with the commission a formal petition under oath asking that WLBZ's application for renewal with increased power be either denied or, if not denied, designated for hearing. In this petition appellant represented that the increase of power was causing interference in the area served by appellant's station and constituted a radical reduction of its service area. The commission took no action on this petition.

During the summer of 1929, appellant learned that the commission was considering a shift in the Florida broadcasting stations assigned to 620 kc., and by letter of July 29, 1929, to the commission, requested that "before any change is made in the Florida stations, WTMJ be given an opportunity to make the necessary investigation and to be heard." On or about October 23, 1929, without giving appellant any notice or opportunity for hearing, a shift was made in the Florida stations, under which WDAE, at Tampa, was taken off 620 kc. and WFLA-WSUN, at Clearwater, Fla., was assigned to that channel, with an evening power of 1,000 watts and daytime power of 2,500 watts. On November 15, 1929, WFLA-WSUN commenced operation on 620 kc. Almost immediately, in thousands of letters and telephone calls from listeners throughout Wisconsin and surrounding states, complaint was made to appellant of the resulting interference. Thereupon, appellant sent skilled observers throughout the state, into Iowa and Northern Illinois. The evidence adduced by appellant overwhelmingly establishes that the simultaneous evening operation of station WFLA-WSUN has resulted in almost ruinous interference, and reduced appellant's service area to a radius of approximately 20 miles from the transmitter.

On November 11,...