Pinellas Broadcasting Co. v. Federal Commun. Com'n

• Decision Date: 19 January 1956
• Docket Number: No. 12545.,12545.
• Citation: 230 F.2d 204
• Parties: PINELLAS BROADCASTING COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, The Tribune Company, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

230 F.2d 204 (1956)

PINELLAS BROADCASTING COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee The Tribune Company, Intervenor.

No. 12545.

United States Court of Appeals District of Columbia Circuit.

Argued June 3, 1955.

Decided January 19, 1956.

Writ of Certiorari Denied April 2, 1956.

Mr. Telford Taylor, New York City, with whom Mr. Neville Miller, Washington, D. C., was on the brief, for appellant.

Mr. John B. Kenkel, Washington, D. C., also entered an appearance for appellant.

Mr. Warren E. Baker, Gen. Counsel, Federal Communications Commission, with whom Mr. J. Smith Henley, Asst. Gen. Counsel, Federal Communications Commission, was on the brief, for appellee.

Mr. Philip J. Hennessey, Jr., Washington, D. C., for intervenor.

Mr. Edwin S. Nail, Washington, D. C., also entered an appearance for intervenor.

Before PRETTYMAN, BAZELON and WASHINGTON, Circuit Judges.

Writ of Certiorari Denied April 2, 1956. See 76 S.Ct. 650.

PRETTYMAN, Circuit Judge.

This is an appeal from an order of the Federal Communications Commission.¹ The order contained an award of a permit to construct a television station on the West Coast of Florida to operate on Channel 8. The area to be served included Tampa on the north and St. Petersburg on the south. Three applicants competed for the award — the Tribune Company located at Tampa, Pinellas Broadcasting Company located at St. Petersburg, and Tampa Bay Area Telecasting Corporation with a studio located between the other two. The award was to Tribune. Pinellas is our appellant. Tampa Bay takes no further part in the proceeding.

The administrative proceeding was meticulous in its procedural detail, beginning with a hearing before an examiner and ending with a denial of reconsideration by the Commission.

The Commission made extensive and detailed findings of facts and explained at great length its choice of the awardee. In respect to many criteria it found little or no advantage to any applicant; in respect to some it found advantage to one; and in respect to others it found advantage to another. The decisive factor, in its judgment, was the comprehensive local live program proposal of Tribune, supported by the record it had made over the years, both in its newspaper and in its radio broadcasting, in furtherance of local civic interests and enterprises. Each of the groups owning these applicants has for years owned and operated a newspaper and a radio station in this locality under the same ownership and in the same manner as it proposes for the new television station. Extensive evidence concerning the respective performances in the use of these media was presented. The Commission rested upon that factual basis. It found that Tribune proposed a greater quantity of local live programming and that in content and the assurance of effectuation of the proposal Tribune was clearly and strikingly superior.

In applying this decisive factor the Commission refused controlling effect to the local ownership of Pinellas contrasted with the absentee ownership of Tribune. Therein, Pinellas says, it erred. Pinellas states its contention in a number of ways,² but in essence it is that the Commission erroneously failed to give preferential weight to Pinellas's superiority to Tribune in terms of local ownership and integration of ownership and management.

The facts on the point are that the stock of Pinellas is wholly owned by residents of St. Petersburg active in the management of the corporate affairs, whereas 90 per cent of the stock of Tribune is owned by non-residents of the area, principally by two families resident in Richmond and Chicago. The conduct of the affairs of Tribune has for many years been entrusted by the owners to a group of local residents as officers and active managers. The Commission found the stockholders of Tribune maintained a policy of autonomy in the management of the company's affairs in local officers having no other business interests.

The Commission says the prime factor in this particular phase of a comparative consideration is the presentation of programs of local interest and importance and, while local ownership is a fair assurance of the performance of promises made by applicants for such programs, and for that purpose is a valuable factor in many comparative judgments, such ownership is not a prime factor in itself and where, as here, an extensive record of performance is available, the record is a more reliable guide to the probability of fulfillment of promises. The same is true in respect to the integration of ownership and management.

The controversy is in an area into which the courts are seldom justified in intruding. The selection of an awardee from among several qualified applicants is basically a matter of judgment, often difficult and delicate, entrusted by the Congress to the administrative agency. The decisive factors in comparable selections may well vary; sometimes one applicant is superior to another in one respect, whereas in another case one applicant may be superior to its rivals in another feature. And it is also true that the Commission's view of what is best in the public interest may change from time to time. Commissions themselves change, underlying philosophies differ, and experience often dictates changes. Two diametrically opposite schools of thought in respect to the public welfare may both be rational; e. g., both free trade and protective tariff are rational positions. All such matters are for the Congress and the executive and their agencies. They are political, in the high sense of that abused term. They are not for the judiciary.

In the case at bar there appears some suggestion that the Commission has changed, or is changing, its view as to the dominant importance of local ownership and as to the evil of a concentration of the media of mass information. But in so doing it is operating within the area of legislative-executive judgment. The courts cannot interfere so long as the process, the premises, and the judgment are not arbitrary. The rationality of some basic theses as to the public good is self-evident, and of some others is so well known as to require judicial notice. But it may sometimes be that the supporting philosophy of a general policy on such matters is so obscure as to require explanation. In such a case, if the conclusion is challenged as arbitrary, it would seem that the court, in the process of adjudicating that issue, can require a statement of the premises for and the reasoning toward the general policy. But we do not have that situation in the case at bar. No statutory provision has been violated. The bases for the Commission's selection are clearly set out and are understandable. They are reasoned and not capricious. They rest upon evidence put in the record. All parties had complete procedural opportunities. So far as the record shows, the Commission considered every suggested index of differences between the applicants. The function of the court in this case goes no further than to examine into these features of the matter.

In its brief Pinellas urges as error the lack of findings as to the relative needs of Tampa and St. Petersburg, as two separate communities, for service and the relative abilities of the applicants to meet each of those needs. Pinellas was not direct or specific upon the point in the proceedings before the Commission, so far as those proceedings are printed in the joint appendix. To discover the point in that text one must discover it in the general claim that the Commission erred in finding Tribune's program proposals superior to those of Pinellas. We advert to the point briefly, although ordinarily we do not, and will not, decide issues not presented observably to the agency.

Section 307(b) of the Communications Act³ requires a fair and equitable distribution of radio service "among the several States and communities". Rulings of the Commission⁴ make clear that it regards as a specific issue the question whether license applications require consideration under this section; that is, whether more than one "community" is involved and, if so, the elements of a fair and equitable distribution. No such issue was posed by Pinellas. Indeed Pinellas expressly disclaimed that Section 307(b) was involved in the case.

Pinellas seeks to avoid its failure to raise an issue under Section 307(b) (and to explain its disclaimer) by urging that such an issue is posed only where the question is which of several communities is to receive service to the physical exclusion of the others. It says no such issue is present here. Instead it argues that, where two applicants are located in distinct communities within the same broadcast area, each serves not only the area as a whole but, principally, the community within which it is located; and that therefore comparison of the program proposals of such applicants must be predicated upon findings as to the suitability of their proposals to the communities principally served. Pinellas points to certain language contained in paragraphs 7, 8 and 9 of the Commission's Conclusions as supporting this view but claims that the required findings were never made. We think Pinellas misconceives both the scope of Section 307(b) and the language of the Commission.

In requiring a fair and equitable distribution of service Section 307 (b) encompasses not only the reception of an adequate signal but also community needs for programs of local interest and importance and for organs of local self-expression. The rules and regulations of the Commission and its decisions demonstrate that it so regards the section. So, if Pinellas wished to press a point that in respect to opportunity for local expression the Tampa-St. Petersburg area is two communities, it should have presented the issue to the Commission. It cannot urge it here for the first time.

Pinellas says the Commission expressly recognized the necessity for comparative consideration of...