Transcontinent Television Corporation v. FCC

• Decision Date: 19 July 1962
• Docket Number: No. 16540,16685.,16684,16541,16540
• Citation: 113 US App. DC 384,308 F.2d 339
• Parties: TRANSCONTINENT TELEVISION CORPORATION, Appellant. v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. TRANSCONTINENT TELEVISION CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Shasta Telecasting Corporation, Intervenor. TRANSCONTINENT TELEVISION CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Kern County Broadcasting Company and Shasta Telecasting Corporation, Intervenors. TRANSCONTINENT TELEVISION CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Kern County Broadcasting Company and Shasta Telecasting Corporation, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

113 US App. DC 384, 308 F.2d 339 (1962)

TRANSCONTINENT TELEVISION CORPORATION, Appellant. v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.

TRANSCONTINENT TELEVISION CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Shasta Telecasting Corporation, Intervenor.

TRANSCONTINENT TELEVISION CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Kern County Broadcasting Company and Shasta Telecasting Corporation, Intervenors.

TRANSCONTINENT TELEVISION CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Kern County Broadcasting Company and Shasta Telecasting Corporation, Intervenors.

Nos. 16540, 16541, 16684, 16685.

United States Court of Appeals District of Columbia Circuit.

Argued June 1, 1962.

Decided July 19, 1962.

Petition for Rehearing Denied October 11, 1962.

Mr. Ernest W. Jennes, Washington, D. C., with whom Messrs. John W. Douglas and Herbert Dym, Washington, D. C., were on the brief, for appellant in Nos. 16540 and 16684 and petitioner in Nos. 16541 and 16685. Mr. Edgar F. Czarra, Jr., also entered an appearance for appellant in Nos. 16540 and 16684 and petitioner in Nos. 16541 and 16685.

Mr. Daniel R. Ohlbaum, Asst. Gen. Counsel, F. C. C., with whom Mr. Max D. Paglin, Gen. Counsel, Mrs. Ruth V. Reel, Counsel, F. C. C., and Mr. Richard A. Solomon, Atty., Dept. of Justice, at the time the brief was filed, were on the brief, for respondents. Mr. Lionel Kestenbaum, Atty., Dept. of Justice, also entered an appearance for respondent United States in Nos. 16541 and 16685.

Mr. James E. Greeley, Washington, D. C., with whom Mr. John G. Smith, Washington, D. C., was on the brief for intervenor Shasta Telecasting Corp.

Mr. J. Roger Wollenberg, Washington, D. C., with whom Messrs. Andrew G. Haley and Michael H. Bader, Washington, D. C., were on the brief, for intervenor Kern County Broadcasting Co.

Before BAZELON, FAHY and BASTIAN, Circuit Judges.

FAHY, Circuit Judge.

Appellant-petitioner, whose designation of itself as Marietta we adopt in this opinion,¹ operates under license from the Federal Communications Commission a VHF television station, KERO-TV, on channel 10 in Bakersfield, California. On June 27, 1960, the Commission issued a notice of proposed rule making to determine whether the public interest would be served by amending section 3.606² of its rules by deleting channel 10 from Bakersfield and providing two additional UHF channels to supplement the three existing UHF channels assigned to that city. This would achieve deintermixture of the combined UHF-VHF assignments.³ The notice also contained proposals for the use of channel 10 if the deletion referred to were found to be in the public interest. Comments, reply comments and alternative proposals were filed by various interested parties, including Marietta. This proceeding culminated, on March 27, 1961, in the Commission's Report and Order in Docket No. 13608, in which it found inter alia that the public interest would be served by making all television Assignments at Bakersfield in the UHF band. The Commission ordered its Table of Assignments amended by substituting UHF channel 23 for channel 10 at Bakersfield, effective either on December 1, 1962, the expiration date of Marietta's current license, or on such earlier date as the station should cease operations on channel 10. The order also assigned UHF channel 51 to Bakersfield.

On June 27, 1960, the Commission also issued an order directing Marietta to show cause why its license should not be modified to authorize operation on one or the other of two UHF channels should the Commission decide to make Bakersfield all UHF. Marietta requested a hearing pursuant to sections 303 (f) and 316 of the Communications Act⁴ should the Commission undertake to modify its license. The Commission, on March 27, 1961, simultaneously with its Report and Order in the rule making proceedings ordered a hearing to determine whether to modify Marietta's license to specify operation of its Station KERO-TV on channel 23, effective at the earliest practicable date prior to expiration of its license on December 1, 1962. After some further proceedings, however, the Commission, on March 27, 1962, terminated the show cause proceedings without a decision on the merits.

Marietta's petition for reconsideration of the decision in the rule making proceeding was denied. Since we review the action of the Commission in that proceeding in appeal No. 16685, the appeal in No. 16684, which seeks review of the same action, is dismissed. And since appeals Nos. 16540 and 16541 involve the show cause proceedings which were terminated without a decision on their merits, those appeals are also dismissed. They present nothing for our review which may not be disposed of on the appeal in No. 16685.

Marietta contends that the deletion of channel 10 was a modification of its license which was unlawful because not preceded by a public evidentiary hearing, citing with special emphasis section 316(a) of the Communications Act, which provides:

"Any station license * * * may be modified by the Commission either for a limited time or for the duration of the term thereof * * *. No such order of modification shall become final until the holder of the license * * * shall have been given reasonable opportunity * * * to show cause by public hearing, if requested, why such order of modification should not issue."⁵

The Commission contends that it did not modify Marietta's license since the deletion of channel 10 was not to become effective during the prescribed term of the license. No explicit provision covers the situation thus presented. We must seek a solution in the light to be drawn from the four corners of the Act and the decisions construing it.

Some significance favorable to the position of the Commission must be attached to provisions of the Act (1) indicative of an unwillingness on the part of Congress to permit a broadcasting license for a term in excess of three years,⁶ (2) that no license shall be construed to create any right beyond its terms, conditions, and periods,⁷ (3) that the applicant shall waive any claim to the use of any particular frequency "because of the previous use of the same, whether by license or otherwise,"⁸ and (4) that "the station license shall not vest in the licensee any right to operate the station nor any right in the use of the frequencies designated in the license beyond the term thereof * * *."⁹

Marietta, on its part, also relies on provisions of the Act, namely, (1) section 316(a), already referred to, that a modification of a license during its term shall not become final until the holder of the license shall have a reasonable opportunity to show cause by public hearing, if requested, why the order of modification should not issue; (2) section 303(f)¹⁰ that changes in frequencies shall not be made without the consent of the station licensee unless, after a public hearing, the Commission shall determine that such changes will promote the public interest or further compliance with the provisions of the Act, and (3) section 9(b) of the Administrative Procedure Act,¹¹ read with section 307(d)¹² of the Communications Act, to the effect that when a licensee, in accordance with agency rules, has made timely and sufficient application for a renewal, no license which authorizes any activity of a continuing nature shall expire until such application shall have been finally determined by the agency.

Turning now to judicial decisions, the power of the Commission to allocate television channels or to modify existing allocations by rule making rather than by adjudicatory proceedings has been upheld. Logansport Broadcasting Corp. v. United States, 93 U.S.App.D.C. 342, 210 F.2d 24. And see Springfield Television Broadcasting Corp. v. Federal Communications Comm'n, 104 U.S.App. D.C. 13, 259 F.2d 170, cert. denied, 358 U.S. 930, 79 S.Ct. 316, 3 L.Ed.2d 303; Van Curler Broadcasting Corp. v. United States, 98 U.S.App.D.C. 432, 236 F.2d 727, cert. denied, 352 U.S. 935, 77 S.Ct. 226, 1 L.Ed.2d 163; Coastal Bend Television Co. v. Federal Communications Comm'n, 98 U.S.App.D.C. 251, 234 F.2d 686. These cases, however, differ from Marietta's in the respect that here the deletion was at a location where Marietta was operating on the channel which was ordered to be deleted; whereas a comparable situation did not exist in the cases cited. Moreover, Marietta claims to come within decisions which have required a full evidentiary hearing, citing Federal Communications Comm'n v. National Broadcasting Co., (KOA), 319 U. S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374; L. B. Wilson, Inc. v. Federal Communications Comm'n, 83 U.S.App.D.C. 176, 170 F.2d 793, and Zenith Radio Corp. v. Federal Communications Comm'n, 93 U. S.App.D.C. 284, 211 F.2d 629. We shall hereinafter refer to these cases.

We recognize the persuasiveness of Marietta's arguments but conclude they should not prevail. In determining whether the deletion of channel 10, effective at the end of the term of Marietta's license, is a "modification" of the license within the meaning of the term as used in section 316(a), we consider the problem in the setting of the full context of the section and of the Act.

"The decisions of this Court have repeatedly warned against the dangers of an approach to statutory construction which confines itself to the bare words of a statute, e. g., Rector, etc., Church of the Holy Trinity v. United States, 143 U.S. 457, 459-462 12 S.Ct. 511, 36 L.Ed. 226; Markham v. Cabell, 326 U.S. 404, 409, 66 S.Ct. 193, 195, 90 L.Ed. 165, for `literalness may strangle meaning.\' Utah Junk Co. v. Porter, 328 U.S. 39, 44 66 S.Ct. 889, 90 L. Ed. 1071." Lynch v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed. 2d 211. And see United States v. Storer Broadcasting Co., 351 U.S. 192, 203, 76 S.Ct. 763, 100 L.Ed. 1081.

We construe section 316(a) as having...