Radio Station WOW v. FEDERAL C. COMMISSION

• Decision Date: 17 July 1950
• Docket Number: 10359.,No. 10350,10350
• Citation: 87 US App. DC 226,184 F.2d 257
• Parties: RADIO STATION WOW, Inc. v. FEDERAL COMMUNICATIONS COMMISSION et al. (two cases.)
• Court: U.S. Court of Appeals — District of Columbia Circuit

87 US App. DC 226, 184 F.2d 257 (1950)

RADIO STATION WOW, Inc. v. FEDERAL COMMUNICATIONS COMMISSION et al. (two cases.)

Nos. 10350, 10359.

United States Court of Appeals District of Columbia Circuit.

Argued May 16, 1950.

Decided July 17, 1950.

Mr. Paul M. Segal, Washington, D. C., with whom Messrs. George Severn Smith and Philip J. Hennessey, Washington, D. C., were on the brief, for appellant. Messrs. Quayle B. Smith and Harry P. Warner, Washington, D. C., also entered appearances for appellant.

Mr. Max Goldman, Assistant General Counsel, Federal Communications Commission, with whom Mr. Benedict P. Cottone, General Counsel, Federal Communications Commission, and Messrs. Richard A. Solomon and Thomas H. Wall, Attorneys, Federal Communications Commission, were on the brief, for appellee.

Mr. Donald C. Beelar, Washington, D. C., with whom Messrs. Louis G. Caldwell, Roderick Russell Eagan, Washington, D. C., and Elliott Ladd Thurston, Jr., were on the brief, for intervenor. Mr. Percy H. Russell, Jr., Washington, D. C., also entered an appearance for intervenor.

Before WILBUR K. MILLER, PRETTYMAN and PROCTOR, Circuit Judges.

PRETTYMAN, Circuit Judge.

Radio Station WOW, Inc., has for many years operated a radio broadcasting station day and night at Omaha, Nebraska. In October, 1945, the Star Broadcasting Company filed an application for a license to use the same frequency at its broadcasting station at Pueblo, Colorado, which is 503 miles from Omaha. Star represented that its operation would cause no interference to WOW within the latter's protected contour area. The application was set for hearing, and notice was published in the Federal Register,¹ which notice stated that one of the issues was whether the proposed operation would cause objectionable interference to the service of any existing station. The application was consolidated with several others pending. Expert engineers testified that the Star operation would not cause objectionable interference to any other station except one not here involved. After the hearing the Star application was severed and granted in October, 1946.

Star's representations as to its non-interference, and the expert testimony of like tenor, were based upon the Standards of Good Engineering Practice Concerning Standard Broadcasting Stations promulgated by the Commission, which included representations as to the ground conductivity in the United States and a map which indicated such conductivity. These representations are rebuttable but, in the absence of contrary evidence, are accepted for purposes of Commission action.

WOW did not participate in the hearing on the Star application or request permission to intervene or otherwise to participate. It did not petition for rehearing or reconsideration of the grant of the application. It is agreed that it at that time relied upon the representations of the Commission's Standards as to ground conductivity.

It developed in the actual operation of the Star station that the conductivity of the earth between Pueblo and Omaha was greater than was reflected in the Standards and that the operation of the Star station did in fact cause objectionable interference with the operation of WOW within its protected area.

When the facts of actual operation became known, WOW, in August, 1948, filed a petition requesting that the Commission require Star to show cause why the Star license should not be modified to require a directional antenna during the daytime so as to eliminate the objectionable interference with WOW. Star opposed this petition. In March, 1949, Star filed an application for a renewal of its license. WOW thereupon filed a petition requesting that the application for renewal be designated for hearing. The Commission, by a memorandum and order dated June 30, 1949, and without a hearing, denied both of WOW's petitions. The two appeals now before us followed. In No. 10350 WOW appealed from the denial of its petition for a rule to show cause why Star's original license should not be modified. In No. 10359 it appealed from the denial of its petition that the Star application for renewal be set for hearing.

Judicial review of orders of the Communications Commission was carefully prescribed in Section 402 of the Federal Communications Act.² This court was given jurisdiction under Section 402(b) to review decisions of the Commission in certain specified cases, the statute providing in pertinent part as follows:

"(b) An appeal may be taken, in the manner hereinafter provided, from decisions of the Commission to the United States Court of Appeals for the District of Columbia in any of the following cases:

"(1) By any applicant for a construction permit for a radio station, or for a radio station license, or for renewal of an existing radio station license, or for modification of an existing radio station license, whose application is refused by the Commission.

"(2) By any other person aggrieved or whose interests are adversely affected by any decision of the Commission granting or refusing any such application."

Jurisdiction to review in other cases was conferred by Section 402(a) upon statutory three-judge courts, the Act of October 22, 1913,³ relative to orders of the Interstate Commerce Commission being made applicable.

We think it quite clear from the above-quoted language of Section 402(b) that this court does not have jurisdiction in No. 10350 but that it does have jurisdiction in No. 10359. The refusal of the Commission to issue upon petition...