Miner v. F. C. C., 78-1903

• Citation: 663 F.2d 152
• Decision Date: 01 December 1980
• Docket Number: No. 78-1903,78-1903
• Parties: , 6 Media L. Rep. 2401 Julie P. MINER, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 152

663 F.2d 152

213 U.S.App.D.C. 388, 6 Media L. Rep. 2401

Julie P. MINER, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.

No. 78-1903.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 15, 1979.

Decided Dec. 1, 1980.

Robert B. McKenna, Jr., Boston, Mass., with whom Glen A. Wilkinson and Rosel H. Hyde, Washington, D.C., were on the brief, for appellant.

James R. Jamison, Jr., Counsel, F.C.C., Washington, D.C., with whom Robert R. Bruce, Gen. Counsel, and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on the brief, for appellee.

Sheldon M. Guttmann, Counsel, F.C.C., Washington, D.C., entered an appearance for appellee.

Before LEVENTHAL, ^* ROBB and WALD, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBB.

ROBB, Circuit Judge:

This case concerns the mutually exclusive applications of Julie P. Miner and Albert L. Crain for permits to construct a new radio station in St. George, Utah. The Federal Communications Commission (FCC) granted Crain's application and denied Miner's. We reverse.

Appellant Julie P. Miner is the licensee of standard broadcast (i. e., AM) radio station KDXU in St. George, Utah, which she and her husband have operated since 1968. They are natives of the area and have lived in St. George since 1968. St. George has a population of 7,097, and is the largest community within Washington County, which has a population of 13,669. KDXU operates at a power of 1 kilowatt daytime and 250 watts nighttime on a frequency of 1450 kilowatts. In 1973 Miner also applied for and received a license to operate KDXU-FM as a 3 kilowatt FM radio station in St. George on a frequency not then in use by any broadcaster.

On November 28, 1973 Miner filed with the FCC an application for a construction permit to improve the facilities of KDXU by moving to the frequency of 890 kilohertz and increasing power to 10 kilowatts, day and night.

On January 29, 1974 Albert L. Crain filed a competing application for the construction of a new AM radio station in St. George on the frequency of 890 kilohertz specifying daytime power of 50 kilowatts and nighttime power of 10 kilowatts. Crain is a resident of Colliersville, Tennessee, and licensee of station WMSO, Colliersville, and KBSN, Crane, Texas. Crain stated that he proposed to move to Colliersville and devote himself full time to the construction and operation of the new station, but it appeared that in previous applications he had also committed himself to full-time management of WMSO and to devote "as much time as practicable" to the operation of KBSN.

The Miner and Crain applications were mutually exclusive because both Miner and Crain applied for the same frequency in the same community, and they were designated for a comparative hearing, pursuant to 47 U.S.C. §§ 309(a) & (e) (1976) and the Ashbacker doctrine, ¹ by order of the FCC dated December 13, 1974.

An evidentiary hearing was held on May 20-22, 1975, and on November 13, 1975 the Administrative Law Judge (ALJ) released his Initial Decision resolving the comparative issue of a construction permit for the frequency of 890 kilohertz in Crain's favor. The ALJ accorded Crain a strong preference on the factor of "diversification" because, given that Miner operated the only AM and FM broadcast stations in St. George, "at the threshold, a grant of the Crain application would provide a choice of programs and service from separately owned stations for the first time; the 'planned' release of the presently Miner-occupied frequency, upon favorable grant, here notwithstanding." (J.A. at 50) In response to Miner's argument that the grant of her application would not hinder the policy of diffusing control over mass media because another applicant could operate a radio station on the vacated frequency of 1450 kilohertz, the ALJ stated:

(A)ccepting the Miner premise of the modest economic, demographic and other proportions of the St. George community, one might question the business prudence of one having an active interest in a released frequency, where the competitor for the modest advertising potential in that community enjoys higher power and audience reach. But even were the Miner thesis persuasive-which it is not-the overriding consideration, particularly as here in a small community, is the potential for a new voice or mouthpiece of the community, diverse, perhaps even antagonistic, to what has been the custom and experience. (emphasis in original)

Id. at 51. In the ALJ's judgment Crain was also preferred on the issue of "efficiency" or "coverage" because his "proposal would cover 28,873 more square miles than would Miner's and serve 34,205 more people." Id. at 49. The ALJ noted that "(a)lthough Crain's exclusive area is at no point less than 90 miles from St. George, it includes both unserved and underserved populations." Id.

The ALJ acknowledged that Miner was preferred on the factor of "integration":

The evidence under the criteria of "Full-time participation in station operation by owners" is persuasive that a preference would run to Miner, as it would appear that Crain would be required to divide his time in the operations of his station KBSN, and the contested facility here .... Julie P. Miner, as General Manager/Owner, on the other hand, would be able to devote her full time to the proposed facility whether that would encompass the proposed facility and the presently owned and operated KDXU-FM, a combined operation fairly common-place and accepted, if not encouraged by the Commission.

Subdivisional attributes of "Full-time participation in station operations by owners" are local residence, broadcast experience and participation in local civic affairs.... As to Julie P. Miner, a clear preference would extend by virtue of long residence in St. George, her greater familiarity with local needs and interests by that residence and reinforced by her and her family's participation in local affairs, albeit heavily oriented to church-related matters.... But the preference to be accorded Miner here-while clear-is but of minor significance, if only for the reason that too great emphasis on local residence and area familiarity might dampen the interests of newcomers either to broadcasting or to a given community.

Id. at 52-53.

The ALJ found that 27 broadcast stations place primary signals over St. George and the proposed service area, that several newspapers, including two Salt Lake daily newspapers, are circulated there, and that St. George's citizens receive the signals of four television stations. (Finding 102, J.A. 34)

The ALJ concluded that any preference for Miner was outweighed by the "new voice" that Crain would bring to St. George, and thus "on diversification alone, Crain must win the day." Id. at 52. While finding "both applicants fully qualified to become licensees under the noncomparative or basic qualifying issues," the ALJ held that "the public interest is best served by awarding the contested franchise to ... Crain...." Id. at 53.

Acting on exceptions filed by the parties and after de novo review of the record, the Commission's Review Board upheld the determination of the ALJ and granted Crain's application for a new standard broadcast station in a decision released on July 19, 1976. 60 F.C.C.2d 892. The Review Board reasoned that any preference given Miner for integration of ownership with management, enhanced by local residence and civic participation, "is not great, because both parties do propose fulltime integration, both have broadcast experience, and both will be locally resident." Id. at 899. The Review Board concluded that "not only ... will (Crain) bring a competitive service to St. George, but ... he will provide the only competition to a two station local monopoly." Id. at 901. With regard to the future status of station KDXU, the Review Board stated:

We have also considered Miner's argument that ... her application should be awarded merit since its sole principal is a woman. While we agree that minority ownership of an applicant-be it black or female-may be a consideration which is relevant to a choice among applicants where it affords a broader community representation, a grant of Miner's application does not afford such a benefit.... (W)e cannot presume that she will cease operation of KDXU if a grant is made to Crain. As a consequence, the extent of female ownership and participation in broadcasting will not be altered in St. George, whichever applicant receives a grant, and no merit can be awarded to Miner on the basis urged.

Miner urges that the Initial Decision inconsistently assumed that Miner would continue the present operation of Station KDXU in the face of a grant to Crain of a facility with greater power, but that a new applicant would not be interested in using the frequency to be vacated by KDXU if the Miner application were granted. We do not see these inconsistent assumptions in the Initial Decision, but in any event we think no significant presumptions or findings are warranted on these matters. Thus, the present fact is that Miner is operating Station KDXU, and the record furnishes no basis for a presumption or a finding of a change in that circumstance. So too, the record furnishes no basis for a presumption or a finding as to the future use of the KDXU frequency if it were vacated.... We might add that if presumptions were to be indulged in, it would seem more likely that an existing operation would be conducted in the face of competition from a higher powered station than that a newcomer would attempt to institute a new service in the face of such competition.

Id. at 899-900, 901 n.25. Therefore the Review Board held that "the substantial difference between the applicants on diversification, together with Crain's coverage advantage, is more significant than Miner's slight preference on integration .... Crain is ... clearly to be preferred on the comparative criteria." Id....