Kentucky Broadcasting Corp. v. Federal Commun. Com'n, 9856.

• Citation: 84 US App. DC 383,174 F.2d 38
• Decision Date: 06 April 1949
• Docket Number: No. 9856.,9856.
• Parties: KENTUCKY BROADCASTING CORPORATION, Inc. v. FEDERAL COMMUNICATIONS COMMISSION. (Mid-America Broadcasting Corp., Intervenor).
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

84 US App. DC 383, 174 F.2d 38 (1949)

KENTUCKY BROADCASTING CORPORATION, Inc. v. FEDERAL COMMUNICATIONS COMMISSION. (Mid-America Broadcasting Corp., Intervenor).

No. 9856.

United States Court of Appeals District of Columbia Circuit.

Argued January 13, 1949.

Decided April 6, 1949.

Mr. Joseph F. Zias, of Washington, D. C., with whom Messrs. Philip G. Loucks, Verne R. Young and Maurice M. Jansky, all of Washington, D. C., were on the brief, for appellant.

Mr. Max Goldman, Asst. Gen. Counsel, Federal Communications Commission, of Washington, D. C., with whom Messrs. Benedict P. Cottone, Gen. Counsel, Federal Communications Commission, Richard A. Solomon, Atty., Federal Communications Commission, and Miss Mary Jane Morris, Atty., Federal Communications Commission, all of Washington, D. C., were on the brief, for appellee.

Mr. Andrew G. Haley, of Washington, D. C., with whom Mr. James A. McKenna, Jr., of Washington, D. C., was on the brief, for intervenor, Mid-America Broadcasting Corporation, urging affirmance.

Before CLARK, PRETTYMAN and PROCTOR, Circuit Judges.

CLARK, Circuit Judge.

By this appeal we are asked to review a final decision of appellee, Federal Communications Commission, released on October 24, 1947, which granted the application of intervenor, Mid-America Broadcasting Corporation, for authorization to construct and operate a new standard broadcast station, and which denied the application of appellant, Kentucky Broadcasting Corporation, Inc., for the same facilities.

On November 16, 1944, Mid-America filed with the Commission its application for authorization to construct and operate a new standard broadcast station at Louisville, Kentucky, on the frequency of 1080 kc with one kilowatt power night and five kilowatts power day.¹ This application by Mid-America was held in status quo until the lifting of the Commission's "wartime freeze policy" on October 7, 1945.

On September 24, 1945, appellant (Kentucky), then and now licensee of Station WINN at Louisville, operating on 1240 kc, with 250 watts power, unlimited time, filed its application for a change in frequency from 1240 kc to 1080 kc and for an increase in power from 250 watts to one kilowatt night and five kilowatts day (the identical facilities sought by Mid-America).

There was also on file with the Commission an application by the Indiana Broadcasting Corporation, Inc., licensee of Station WIBC, Indianapolis, Indiana, operating on the adjacent frequency of 1070 kc, for an increase in power from 5 to 50 kilowatts.

These three applications (two of which were mutually exclusive) were consolidated for hearing before a presiding officer. This hearing took place on April 22 through 25, 1946. On January 15, 1947, the Commission adopted a proposed decision looking to a grant of Mid-America's application and a denial of that of Kentucky. By order of April 4, 1947, the Commission severed and granted the application of Indiana, thus leaving for comparative consideration the mutually exclusive applications of Kentucky and Mid-America. The validity of this severance order is not challenged by any party to this appeal and is not in issue in the case.²

Exceptions and requests for oral argument on the proposed decision having been filed, oral argument was held before the Commission en banc on April 24, 1947. Briefs were thereafter filed with the Commission by Kentucky and by Mid-America. On October 24, 1947, the Commission released its final decision granting the application of Mid-America and denying that of Kentucky. Following that final decision, Kentucky filed with the Commission (1) a petition for rehearing based on alleged newly discovered evidence, (2) a request for oral argument before the Commission en banc, and (3) a supplemental request for oral argument. By memorandum opinion and order released April 12, 1948, the Commission denied these three requests and Kentucky promptly appealed to this court. Intervenor, Mid-America, is currently operating Station WKLO at Louisville as the result of the grant appealed from herein.

We have examined the comparatively small record before us in this case and see no ground for disturbing the decision of appellee Commission. We shall consider briefly below a few of the many assignments of error raised by appellant. All other contentions of appellant not specifically mentioned herein are, of course, considered insubstantial.

Kentucky complains that it is "manifestly clear" that the Commission in ruling against it "gave consideration and controlling weight to extralegal considerations," namely, that the Commission in its decision attached undue importance to the fact that Mid-America had formerly been granted a permit to construct the facilities it now operates.³ As a preliminary, we wish to state that the Commission's prior rulings with regard to the same applicant for the same facilities cannot properly be characterized as "extralegal considerations." But, be that as it may, study of the record and of the several opinions of the Commission makes it clear that this factor was definitely not given controlling, or even substantial, weight below, but rather was mentioned in passing by the Commission in support of its comment that Mid-America was not then seeking for the first time to render broadcast service to the Louisville area. We feel the Commission acted properly in this respect and that Kentucky's contention is not supported by the record. We know of no rule of law which absolutely precludes the Commission from any consideration of the priority of applications filed with the Commission so long as that consideration is not the controlling factor in arriving at a final decision as between two mutually exclusive applications. It was not the controlling factor in this case.

Appellant calls attention to the Commission's prior decision in In re Valdosta Broadcasting Co. et al.,⁴ and complains of the Commission's failure to follow that decision. In the Valdosta case the Commission granted the application of an existing licensee and denied the mutually exclusive application for new service and indicated in its decision that, all other factors being equal, it would prefer an existing licensee to a newcomer. A preliminary answer to Kentucky's claim that the Commission erred in not following its Valdosta decision is the rule of law that the doctrine of stare decisis is not generally applicable to the decisions of administrative tribunals.⁵ However, even assuming that the Commission is bound by its own prior determinations, the Valdosta case is factually distinguishable from the instant case. In the Valdosta case the Commission's decision makes it clear that there the program proposals of the two competing applicants were equally meritorious. That is not true in the present case, as will be seen below, and accordingly...