Sudbrink Broadcasting, Inc. of Florida v. Federal Communications Commission

• Decision Date: 30 December 1974
• Docket Number: No. 73--1849,73--1849
• Citation: 166 U.S.App.D.C. 85,509 F.2d 418
• Parties: SUDBRINK BROADCASTING, INC. OF FLORIDA, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WFTL Broadcasting, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 418

509 F.2d 418

166 U.S.App.D.C. 85

SUDBRINK BROADCASTING, INC. OF FLORIDA, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee WFTL Broadcasting, Inc., Intervenor.

No. 73--1849.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 19, 1974.

Decided Dec. 30, 1974.

John Wells King, Washington, D.C., with whom Michael H. Bader, Washington, D.C., was on the brief, for appellant.

James R. Hobson, Counsel, F.C.C. with whom John W. Pettit, Gen. Counsel, and Joseph A. Marino, Associate Gen. Counsel, Washington, D.C., were on the brief, for appellee.

Rainer K. Kraus and Herbert D. Miller, Jr., Washington, D.C., were on the brief for intervenor.

Before FAHY, Senior Circuit Judge, LEVENTHAL, Circuit Judge, and DAVIS, ^* Judge, United States Court of Claims.

DAVIS, Judge:

In December 1971, appellant Sudbrink Broadcasting, Inc., licensee of radio station WLYF (FM), Miami, Florida, requested the permission of the Federal Communications Commission to identify the station as 'WLYF, Miami-Fort Lauderdale.' Sudbrink's application, based on the double factors that the station puts a principal city signal over Fort Lauderdale and that the two communities are economically cohesive, was opposed by intervenor WFTL Broadcasting Company, licensee of WFTL, one of four Fort Lauderdale FM stations. WFTL maintained that putting a principal city signal over a community was not sufficient to warrant granting dual identification, that Miami and Fort Lauderdale are separate economic and radio markets, that WLYF had served Miami poorly and should not be allowed to expand its service commitment, and that the smaller Fort Lauderdale radio stations would be economically injured by the dual-city identification. In July 1973, the Commission issued a Memorandum Opinion and Order denying Sudbrink's request because it lacked 'the competitive and economic reasons which ordinarily justify waiver' of the single-city identification requirement and because Miami and Fort Lauderdale are separate economic entities. 41 F.C.C.2d 818, 819 (1973). Sudbrink appeals from that decision. ¹

While station identification announcements are not the most significant portion of a radio station's program day, they are among the most highly regulated. Under FCC regulations, 47 C.F.R. § 73.1201 (1973), each radio and television station must identify itself at the beginning and end of each 'time of operation' and hourly. The regulation goes on to state that 'Official station identification shall consist of the station's call letters immediately followed by the name of the community or communities specified in its license as the station's location,' but that, with written authorization, other communities may also be named. 47 C.F.R. § 73.1201(b)(1--2) (1973). ² Sudbrink's December 1971 letter was an application for such additional authorization. ³

Requests for 'multi-city identification,' usually denominated as requests for waiver of the station identification regulation, are not unusual, although this is the first time the issue has reached this court. The extra identification is usually sought as a way to try to increase advertising revenues, and does not constitute a modification of the station's license or a diminution of its obligation to serve the city or place of license. Ponce Television Corp., 18 F.C.C.2d 543, 545 (1969); General Electric Broadcasting Co., 16 F.C.C.2d 673 (1969).

The main policy statement on the subject came in 1957 when the Commission, citing administrative difficulties and the desire to preserve the concept of single-community identification, refused to promulgate a regulation allowing automatic waiver of the television station identification regulation ⁴ when certain technical and sociological standards were met. At the same time the Commission said:

We will review any such requests in the light of all the relevant local circumstances, including the provision of a minimum city signal throughout the cities concerned, the applicant's proposals for the provision of studio facilities, the programming services to the cities concerned, other available television services, if any, the hardships, if any, which may be unjustifiably imposed by the present rules, and all other circumstances bearing on a decision as to whether the authorization would be justifiable in the individual case as an exception to the general rule.

Amendment of Part 3 of the Rules and Regulations Governing Main Studio and Station Identification of Television Broadcast Stations, 22 F.C.C. 1567, 1571 (1957) (cited as 1957 Report and Order).

With the waiver rules in this general posture, the Commission considered the 1963 requests of Wometco Enterprises and Sunbeam Television Corp., both licensees of Miami VHF television outlets, to identify as Miami-Fort Lauderdale stations. The application was refused, the F.C.C. distinguishing the case from prior waiver grants because it did not involve a small-city station 'act(ing) to enhance (its) attractiveness . . . to national advertisers, by recognizing (its) predicted service contours.' The Commission was also concerned that granting the waiver would lessen the attractiveness to potential licensees of an allocated but unused Fort Lauderdale UHF channel. Wometco Enterprises, Inc., 1 P&F Radio Reg.2d 699, 700 (1963). Except for intervening policy statements and waiver grants, and given the present policy of considering AM, FM and television dual-identification requests on the same basis, see Radio Delegation Order, supra, note 4, Wometco would be a decisive precedent here. Our consideration is, however, made somewhat more complex by these intervening events on which appellant relies heavily.

In 1965, in response to this court's decision in Miners Broadcasting Service, Inc. v. F.C.C., 121 U.S.App.D.C. 222, 349 F.2d 199 (1965), the Commission reconsidered its policy regarding the licensing of mutually exclusive suburban stations where the agency had reason to believe that an applicant was competing for the easier-to-obtain suburban station when it in fact intended to serve the central city. In developing a policy to screen out such pseudo suburban stations, the Commission found:

Our experience compels us to conclude that as their power and coverage are increased to serve larger numbers of persons, stations in metropolitan areas often tend to seek out national and regional advertisers and to identify themselves with the entire metropolitan area rather than with the particular needs of their specified communities.

Policy Statement on Section 307(b) Considerations for Standard Broadcast Facilities Involving Suburban Communities, 2 F.C.C.2d 190, 192 (1965). Appellant maintains that this Policy Statement, even though only tangentially related to dual-city identification policies, effectively overrules Wometco by undercutting its rationale of helping the suburban station to obtain national advertising.

A year later, the F.C.C. reviewed the status of multi-city identification requests under the 1957 Report and Order, supra. Finding, in the case of television, that 'The Commission has waived these provisions so as to permit multiple city identification in all situations in which the additional community or communities with which the station concerned wished to be identified were provided with' principal city signals, the FCC delegated the authority to waive the regulation, in cases where principal city strength was provided, to the Chief of the Broadcast Bureau. 31 Fed.Reg. 6627 (1966); see 47 C.F.R. § 0.281(d)(17) (1973). ⁵ In 1967, the Commission decided to align AM and FM practice 'with television practice to the extent of permitting on-the-air identification with all communities lying within the pertinent principal-city contours.' Radio Delegation Order, supra note 4. This order likewise delegated waiver authority to the Chief of the Broadcast Bureau. See 47 C.F.R. § 0.281(kk) (1973).

From 1967 until the present, most requests for waivers of the station identification requirement have been routinely granted, in the absence of opposition, by the Broadcast Bureau, even in instances where the city of license is larger. See, e.g., Public Notice, Broadcast Actions, Report No. 12098, January 28, 1974 (South Bend-Elkhart, Ind.); Id., Report No. 12427, July 1, 1974 (Reading-Pottstown, Pa.); Id., Report No. 12179, March 5, 1974 (Tampa-St. Petersburg, Fla.); Id., Report No. 11363, March 13, 1973 (Dallas-Ft. Worth, Tex.). Where opposition has been filed, as in this case, the Broadcast Bureau has usually referred the request to the Commission.

In addition to the Wometco standard, the Commission's decisions in prior contested cases appear to articulate a number of criteria, including: (1) whether the station also proposes moving its transmitter and/or studio to the location with which it proposes to identify or adding a new studio in that city (see Ponce Television Corp., supra, 18 F.C.C.2d at 545; Merrimack Valley Communications, Inc., 20 F.C.C.2d 161, 163--164 (1969)); (2) mutuality, i.e. whether the opposing station would be eligible for dual-city identification (see Central California Communications Corp., 22 F.C.C.2d 629, 631 (1970)); (3) viability of the opposing station (see id. at 630; Ponce Television Corp., supra at 545; cf. Wichita-Hutchinson Co., 44 F.C.C. 2069, 2069--70 (1960)); and (4) viability of the station requesting the waiver (see Look Television Corp., 15 F.C.C.2d 718, 719 (1968)). Where the applicant station has proposed a new studio as in Ponce and Merrimack, the Commission has denied dual-city identification, viewing the application as a change in place of license. The result has been the same where there has been a lack of mutuality or a substantial showing of economic injury to a floundering opposition station. Compare Central California, supra and Ponce, supra with Wichita-Hutchinson, supra (economic injury not proven). In Look, the Commission found that the tricity...