Saltzman v. Stromberg-Carlson Telephone Mfg. Co.

• Decision Date: 06 January 1931
• Docket Number: No. 5278.,5278.
• Citation: 46 F.2d 612,60 App. DC 31
• Parties: SALTZMAN et al., Federal Radio Commission, v. STROMBERG-CARLSON TELEPHONE MFG. CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

60 App. DC 31, 46 F.2d 612 (1931)

SALTZMAN et al., Federal Radio Commission, v. STROMBERG-CARLSON TELEPHONE MFG. CO.

No. 5278.

Court of Appeals of District of Columbia.

Argued December 2, 1930.

Decided January 6, 1931.

Motion for Rehearing Denied January 24, 1931.

Thad H. Brown, D. M. Patrick and Fanney Neyman, all of Washington, D. C., for appellants.

William J. Donovan and Bethuel M. Webster, Jr., both of New York City, Paul M. Segal, of Washington, D. C., and E. Willoughby Middleton, of Rochester, N. Y., for appellee.

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

MARTIN, Chief Justice.

This is an appeal from a preliminary injunction issued against appellants, hereinafter called the Federal Radio Commission, in a suit brought for a permanent injunction against the Commission by a radio broadcasting licensee.

It appears from the record that appellee owned and operated radio broadcasting station WHAM located at Rochester, N. Y., which was last licensed for the license-period ending on April 30, 1930, to operate full time upon a frequency of 1,150 kilocycles, clear channel, using a power output of 5,000 watts. On March 31, 1930, appellee regularly filed an application for the renewal of this license for a period of 90 days upon the terms therein contained.

On April 7, 1930, however, the Commission issued an order transferring the station from frequency 1,150 to frequency 1,160, to become effective on April 30, 1930. By the same order the Commission also changed the assignment of broadcasting station KTNT, located at Muscatine, Iowa, to the frequency of 1,160 kilocycles, for daylight operation. That station had theretofore been operating upon a frequency of 1,170 kilocycles, and neither the owner thereof nor of the appellee station had made application to the Commission for such a change of assignment, nor consented thereto. No prior notice was given to appellee that such a transfer was to be made, nor was any opportunity given for a hearing before the date when the order was to become effective. On April 14, 1930, the Commission entered an order reciting the terms of the former order, and providing as follows: "In the event any station named above is not satisfied with its operation under its aforesaid assignment, it may be heard on June 17, 1930, provided that such station shall give notice to the commission of its desire for such hearing twenty (20) days or more prior to said date. However, the effective date of the licenses issued hereunder shall be April 30, 1930 at 3 a. m., eastern standard time."

It is stated without contradiction that the equipment of station WHAM comprises one of the most modern and efficient installations in this country; that it was erected at a cost of approximately $200,000, uses seven studios, and expends approximately $250,000 a year in operation; and that the operation of the station as a full-time clear-channel station is a necessary adjunct to the business of appellee as a manufacturer of high-grade radio receiving sets and accessories.

It is claimed by appellee that great and irreparable injury would be inflicted upon it with respect to the ownership and operation of the station, by reason of the aforesaid orders; and, furthermore, that the orders were invalid and void, for the reason among others, that it is beyond the powers of the Radio Commission to issue a renewal license for the use of a frequency other than that applied for, or to refuse a renewal of a station license upon terms similar to those of the license sought to be renewed, or to injuriously alter or revise the assignment of a radio station during or at the end of its license period, without evidence properly adduced at a prior hearing.

The appellee thereupon filed its bill of complaint in the lower court praying the court to restrain the Commission and the members thereof from issuing any orders changing the frequency assignment of station WHAM without prior notice and hearing, and that the court declare invalid the order theretofore issued by the Commission to effectuate such change, and that a preliminary injunction be granted and issued by the court pending a determination of this suit forbidding all action on the part of the Commission in any wise interfering with the...