Spartan Radiocasting Co. v. F. C. C.

Decision Date11 April 1980
Docket NumberI,78-1566 and 78-1757,WBRE-T,Nos. 78-1240,s. 78-1240
Citation619 F.2d 314
PartiesSPARTAN RADIOCASTING COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, and United States of America, Respondents, Key Television, Inc., Great Lakes Communications, Inc., Wyneco Communications, Inc., D. H. Overmyer Telecasting Company, National Cable Television Association, Inc., Post-Newsweek Stations, Connecticut, Inc., Post-Newsweek Stations, Florida, Inc., Intervenors. SPARTAN RADIOCASTING COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, and United States of America, Respondents, Post-Newsweek Stations, Florida, Inc.; Post-Newsweek Stations, Connecticut, Inc.; Great Lakes Communications, Inc.; Springfield Television Corporation; D. H. Overmyer Telecasting Company; Key Television, Inc.; Wyneco Communications, Inc.; Summit Radio Corporation; Forward of Illinois, Inc.; Plains Television Corporation; Roy H. Park Broadcasting of Utica-Rome, Inc.; Studio Broadcasting System Division of Highwood Service, Inc.; Winnebago Television Corp.; Pullman TV Cable Co., Inc.; National Association of Broadcasters; Bibb Television, Inc.; RJN Broadcasting, Inc.; Broadcasting-Telecasting Services, Inc.;nc.; Pennsylvania Cable Television Association; Virginia Broadcasting Corporation; The Klix Corporation; Scripps-Howard Broadcasting Company; Desert Empire Television Corporation; Knight-Ridder Broadcasting, Inc.; Capital Cities Communications, Inc.; Scranton Broadcasters, Inc.; New England Cable Television Association; Aberdeen Tele-Cable, Inc.; Allen's TV Cable Service, Inc.; American Video Corp.; Apple Valley TV Cable, Inc.; Asbury and James TV Cable Service; Audubon Electronics, Inc.; B & D Electric, Inc.; Better Cable TV; Big Canoe Corporation; Bishop Cable TV, Inc.; Breckenridge TV Distributing Co.; Brownwood TV Cable Service, Inc.; Cable Antenna Systems; Cablevision of Pennsylvania, Inc.; Carthage Cablevision, Inc.; Cass Community Antenna; CATV General Corporation; Central Communications, Inc.; Central Plains Cable TV; Century Communications Corp.; Chattanooga
CourtU.S. Court of Appeals — Fourth Circuit

Michael S. Horne, Washington, D. C. (Donna M. Murasky, J. Geoffrey Bentley, Covington & Burling, Washington, D. C., on brief), for Spartan Radiocasting Company (WSPA-TV), Post-Newsweek Stations, Connecticut, Inc. (WFSB-TV), Post-Newsweek Stations, Florida, Inc. (WPLG), Broadcasting-Telecasting Services, Inc. (WBBH-TV), Scranton Broadcasters, Inc. (WDAU-TV), and WBRE-TV, Inc. (WBRE-TV).

Richard Hildreth, Washington, D. C. (Vincent J. Curtis, Jr., Robert L. Pettit, Fletcher, Heald & Hildreth, Washington, D. C., on brief), for Henson Aviation, Inc. (WHAG-TV).

Erwin G. Krasnow, Washington, D. C., on brief for National Association of Broadcasters.

Joel Rosenbloom, Wilmer, Cutler & Pickering, Washington, D. C., on brief, for Knight-Ridder Broadcasting, Inc. (WJRT-TV, WPRI-TV, WTEN(TV), WCDC(TV)), and Capital Cities Communications, Inc. (KFSN-TV, KTRK-TV, WKBW-TV, WPVI-TV, WTNH-TV and WTVD).

Steven A. Lerman, McKenna, Wilkinson & Kittner, Washington, D. C., on brief, for Summit Radio Corp. (WAKR-TV), Forward of Illinois (WRAU-TV), Plains Television Corporation (WICS), Roy H. Park Broadcasting of Utica (WUTR), Studio Broadcasting System Division, Highwood Service, Inc. (KTSB-TV), and Winnebago Television Corp. (WTVO).

Peter Shuebruk, Fly, Shuebruk, Blume, Gaguine, Boros & Schulkind, New York City, on brief, for D. H. Overmyer Telecasting Co. (WDHO-TV), Wyneco Communications, Inc. (KYCU-TV).

Martin E. Firestone, Stein, Halpert & Miller, Washington, D. C., on brief, for Springfield Television Corporation (WKEF).

William M. Barnard, Kenkel & Barnard, Washington, D. C., on brief, for Bibb Television, Inc. (WCWB-TV).

Arthur B. Goodkind, Koteen & Burt, Washington, D. C., on brief, for Amaturo Group, Inc. (KQTV), KCST, Inc. (KCST-TV), McGraw-Hill Broadcasting, Inc. (KERO-TV), NEP Communications, Inc. (WNEP-TV), and Desert Empire Television Corporation (KMIR-TV).

James E. Greeley, Washington, D. C., on brief, for RJN Broadcasting, Inc. (WLFI-TV).

Reed Miller, Arnold & Porter, Washington, D. C., on brief, for Virginia Broadcasting Corporation (WVIR-TV).

William J. Potts, Jr., Haley, Bader & Potts, Washington, D. C., on brief, for Klix Corporation (KMVT).

Howard M. Weiss, Mullin, Connor & Rhyne, P. C., Washington, D. C., on brief, for Ponderosa Television, Inc. (KTVZ).

Keith H. Fagan, F. C. C. (John H. Shenefield, Asst. Atty. Gen., Robert B. Nicholson and Daniel J. Conway, Dept. of Justice, Robert R. Bruce, Gen. Counsel, David J. Saylor, Deputy Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, Washington, D. C., on brief), for Federal Communications Commission and United States of America.

Paul R. Schwedler, Michael B. Isaacs, Washington, D. C., for National Cable Television Association.

Sol Schildhause, Farrow, Schildhause, Dent & Wilson, Washington, D. C., for Moscow TV Cable Co., Inc. and Pullman Cable TV Co., Inc.

Harry J. Ockershausen, Christopher D. Coursen, Dempsey & Koplovitz, Washington, D. C., for Scripps-Howard Broadcasting Company.

Frederick W. Ford, Lovett, Ford & Hennessey, Washington, D. C., for Winchester Cable TV.

John P. Cole, Jr., Joseph R. Reifer, Cole, Zylstra & Raywid, Washington, D. C., for Aberdeen Telecable, et al.

Lewis I. Cohen, Roy W. Boyce, Cohen & Berfield, Washington, D. C., for Pennsylvania Cable Television Association and Raystay Company.

Paul R. Cianelli, Tilton, N. H., for New England Cable Television Association.

Before HALL, PHILLIPS and SPROUSE, Circuit Judges.

K. K. HALL, Circuit Judge:

Spartan Broadcasting Company, a television station broadcaster, petitions to have set aside an order of the Federal Communications Commission allowing television cable companies to show duplicating network programming of competing station affiliates in any cable community where there signals are available over-the-air via traditional antenna reception. 1 Previously, the Commission had banned such network competition on cable systems in areas surrounding each affiliate as a means of directing network revenues for local viewing to the nearby affiliate. It had been reasoned that a station's home area should be protected because many stations, especially those in small markets, depended on network revenues to support their local service programming, or even to remain in business. By the order objected to by petitioner, the station affiliate seeking the cable blackout must demonstrate, in a variance proceeding, its need for it.

Petitioner contends this "about-face" order abolishing its right to demand blackout of its local competition is arbitrary as against established regulatory policy, its adoption was capriciously undertaken, and the notice requirements of the Administrative Procedure Act were violated. 5 U.S.C. § 551 et seq. We disagree and, accordingly, deny the petition to set the Commission's order aside.


A recurring problem in cable regulation has been the treatment of stations whose primary service areas are away from a cable community but whose signals are nevertheless available over-the-air to viewers not subscribing to cable reception.

The Commission's rules requiring certain stations to be carried in a cable community provide that all "significantly viewed" local signals must be carried when those stations request it. See 47 C.F.R. §§ 76.57, 76.59, 76.61, and 76.63. "Significantly viewed" 2 signals are defined as those which capture a minimum of 3% of total viewing time spread over 25% of all non-cable households. 47 C.F.R. § 76.54.

On the other hand, the Commission's general blackout rules, which are designed to protect nearby network affiliates from unfair distant affiliate competition resulting from equalized reception by cable carriage, require that the programs of those distant affiliates be switched off during network time some 60% of total broadcast time.

Where a "distant" affiliate was "significantly viewed" in another affiliate's surrounding area without cable, cable companies had to comply with both sets of regulations by carrying the "distant" signals, which in turn had to be blacked out during network time.

Switching equipment and additional personnel were required. Depending on the sophistication of the switching equipment, the dial number for the deleted signal would either go blank requiring the viewer to change it or the equipment would impose the nearby station's signal at the blank dial number.

Cable subscribers could watch the same network programs as their non-cable neighbors, but they were prevented from seeing the commercials and local spot announcements shown by distant affiliates during those programs.


In 1974, the Commission initiated its first comprehensive review of its blackout rules since they were promulgated in 1965. See the First Report and Order in Dockets 14895 and 15233, 38 F.C.C.2d 683 (1965). The Commission published a Notice of Inquiry and Proposed Rule Making, Docket 19995, 46 F.C.C.2d 1164 (April 3, 1974) requesting comment on a number of problems including the inconsistency of requiring locally available signals to be carried-and-then-deleted during network time. The notice states one of the Commission's inquiries to be,

Can the network program exclusivity (blackout) rules be modified so as to better reflect actual viewing patterns of television signals available off-the-air in cable communities and, thereby, be made more consistent with the Commission's (mandatory) signal carriage rules?


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