TV 9, INC. v. FCC, No. 72-2049

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: BAZELON, , FAHY, Senior Circuit , and ROBINSON, Circuit
• Citation: 495 F.2d 929
• Parties: TV 9, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Mid-Florida Television Corporation, Intervenor. COMINT CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, TV 9, Inc. and Mid-Florida Television Corporation, Intervenors. CENTRAL NINE CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, TV 9, Inc. and Mid-Florida Television Corporation, Intervenors. FLORIDA HEARTLAND TELEVISION, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, TV 9, Inc. and Mid-Florida Television Corporation, Intervenors.
• Decision Date: 06 November 1973
• Docket Number: 72-2051,72-2057 and 72-2059.,No. 72-2049

495 F.2d 929 (1973)

TV 9, INC., Appellant,
v.
FEDERAL COMMUNICATIONS COMMISSION, Appellee,
Mid-Florida Television Corporation, Intervenor.
COMINT CORPORATION, Appellant,
v.
FEDERAL COMMUNICATIONS COMMISSION, Appellee,
TV 9, Inc. and Mid-Florida Television Corporation, Intervenors.
CENTRAL NINE CORPORATION, Appellant,
v.
FEDERAL COMMUNICATIONS COMMISSION, Appellee,
TV 9, Inc. and Mid-Florida Television Corporation, Intervenors.
FLORIDA HEARTLAND TELEVISION, INC., Appellant,
v.
FEDERAL COMMUNICATIONS COMMISSION, Appellee,
TV 9, Inc. and Mid-Florida Television Corporation, Intervenors.

Nos. 72-2049, 72-2051, 72-2057 and 72-2059.

United States Court of Appeals, District of Columbia Circuit.

Argued June 12, 1973.

Decided November 6, 1973.

Rehearing and Rehearing Denied February 28, 1974.

495 F.2d 930

Reed Miller, Washington, D. C., with whom Thomas H. Wall and Alan C. Campbell, Washington, D. C., were on the brief, for appellant in No. 72-2049 and intervenor TV 9, Inc.

John D. Lane, Washington, D. C., with whom Ramsey L. Woodworth and John W. Lyon, Washington, D. C., were on the brief for appellant in No. 72-2051.

Thomas M. P. Christensen, Washington, D. C., with whom Edward P. Morgan, Washington, D. C., was on the brief for appellant in No. 72-2057.

Vincent A. Pepper and Robert J. Buenzle, Washington, D. C., were on the brief for appellant in No. 72-2059.

R. Michael Senkowski, Counsel, F. C. C. with whom John W. Pettit, Gen. Counsel, and Joseph A. Marino, Associate Gen. Counsel, F. C. C., were on the brief, for appellee.

Paul Dobin, Washington, D. C., with whom Joel H. Levy, Washington, D. C., was on the brief, for intervenor Mid-Florida Television Corp.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and ROBINSON, Circuit Judge.

Rehearing and Rehearing En Banc Denied February 28, 1974.

495 F.2d 931

FAHY, Senior Circuit Judge:

For the prior history of the controversy over who is entitled to a construction permit to operate a commercial television station on Channel 9 in Orlando, Florida, now before us again in these consolidated appeals, one may turn to the decisions of this court enumerated in the margin.¹

In 1965 we vacated the Commission's award of the Channel to Mid-Florida Television Corporation, and caused the opening of the proceedings to additional applicants.² In complying the Commission temporarily authorized Mid-Florida to continue its operation on the Channel, stating that such operation was to be "without prejudice to, and constitutes no preference in, any aspect of any proceeding to be held with respect to channel 9 in Orlando, Fla."³

Eight applicants filed for permanent authority.⁴ Four of the new applicants (Central Nine Corporation, TV 9, Inc., Florida Heartland Television, Inc., and Comint Corporation) also applied for interim authority, the first three of which subsequently withdrew their request for individual interim authority and formed Consolidated Nine, Inc., to apply for such authority. Consolidated Nine, Inc. "was an open-ended group, with provisions that any applicant for permanent authority could participate with the original incorporators on an equal basis."⁵

On March 29, 1967, the Commission denied the applications of Consolidated Nine and Comint for interim authority. Simultaneously it permitted Mid-Florida to continue interim operation on the Channel pending the award of the construction permit subsequent to the holding of a comparative hearing.⁶ On appeal by Comint and Consolidated Nine we vacated the grant of interim authority to Mid-Florida and remanded, retaining jurisdiction pending further proceedings before the Commission.⁷ On the remand the Commission, on January 9, 1969, granted interim authority to Consolidated Nine.⁸

The controversy then proceeded to a comparative hearing on the applications for the construction permit of TV 9, Inc., Comint Corporation, Central Nine Corporation, Florida Heartland Television, Inc., and Mid-Florida. On January 10, 1972, the Commission granted the application of Mid-Florida "for a permit to construct a new television broadcast station to operate on Channel 9 at Orlando, Florida."⁹

The principal basis for favoring Mid-Florida was the conclusion that its proposal ". . . offers the best practicable

495 F.2d 932

service to the public because of the substantial preference to which it is entitled in the factor of integration of ownership with management,"¹⁰ enhanced by the local residence of Mr. and Mrs. Brechner, the principal stockholders, their civic participation and radio broadcast experience. The Commission stated that in the particular factual circumstances of the case, ". . . We believe that Mid-Florida will render significantly better service to the public than would TV 9 or Comint, given its substantially superior showing in integration of ownership with management and given the unusually good past broadcast record of Brechner"¹¹ in the prior operation of a radio station, WGAY, Silver Spring, Maryland, and that the diversification disadvantage of Mid-Florida was not of appreciable significance.¹² Moreover, it concluded

Mid-Florida\'s vastly superior showing regarding the best practicable service affords the greatest assurance that Mid-Florida will demonstrate the most sensitivity to the Orlando area\'s changing needs as well as the flexibility to change as local needs and interests change.¹³

I

Appellants advance a number of reasons for setting aside this decision. Among them is the failure of the Commission to give consideration, adverse to Mid-Florida, to the Roth letter and ex parte contacts with a former Commissioner heretofore discussed fully in our opinions in WORZ, Inc. v. F.C.C., 106 U. S.App.D.C. 14, 268 F.2d 889 (1959); and WORZ, Inc. v. F.C.C., 120 U.S.App. D.C. 191, 345 F.2d 85 (1965). We agree with the Commission, however, that these Roth and ex parte matters were not required to be considered by the Commission, for in our last cited case we stated, "we would agree that, absent any new evidence bearing upon them, the time has come to end litigation about them."

II

None of the parties disputes that in the comparative proceedings now before us, the Commission, in appraising Mid-Florida's qualifications compared with those of the other four appellant-applicants, could not rely upon evidence attributable to Mid-Florida's long operation on Channel 9 from 1958 to 1969. The reason is that such operation, as we have held, was never pursuant to valid authority. The competing applicants in the present proceedings were to be appraised on a basis of equality irrespective of past operation by Mid-Florida on the Channel. Comint requested the Review Board so to rule prior to the hearing. The request was denied by the Board and the matter left for decision by the Examiner. The result was that a very considerable amount of evidence came into the record respecting Mid-Florida's operation on Channel 9. This evidence is now conceded by all parties to have been inadmissible.

Contentions arising from this error must be considered in light of the position of the Commission and Mid-Florida that the inadmissible evidence, and any findings based thereon, were disregarded by the Commission, so that, it is said, the error was harmless. Appellants

495 F.2d 933

counter that there was so much of this inadmissible evidence — it was so pervasive — that the error cannot be remedied except by a new hearing, freeing the court of the need to cope with an elusive appraisal of possible harmlessness. It is also pointed out that the record was deliberately compiled by Mid-Florida in an erroneous manner in order to gain an advantage. As to this Mid-Florida urges that at the time of the hearing it believed in good faith that it had a right to rely upon its past performance. Its position now, however, is that the Review Board and Commission explicitly disregarded the inadmissible evidence and findings of the Examiner based thereon, as Board and Commission firmly state has been done

The resultant question we think is two-fold. First it is whether such a pervasive commingling of admissible and inadmissible evidence, notwithstanding the disclaimer of Board and Commission of reliance upon the inadmissible, has created a record which is not a basis for decision from the standpoint of enabling the other parties fairly to compose a record supporting their own applications and, in the second place, it is whether the Board and Commission can be held with confidence to have entirely disregarded the inadmissible evidence. It is difficult to decide, but we have concluded that we should accept the unanimous disclaimer of the members of the Commission of reliance upon the inadmissible evidence except as we shall note. The introduction of the evidence we think did not preclude the applicants other than Mid-Florida from fairly composing a record in support of their own respective applications. We are fortified in these conclusions by the limited use made of the past performance evidence, that is, whether it influenced the Commission's position with respect to the standing of the respective applicants on the special comparative issues of ascertainment of community needs and proposed programming. The Commission placed each of the five applicants on an equal plane as to these issues, giving no preference to any applicant, a matter we now consider.

III

The Board agreed with the Examiner in placing on an equal footing all applicants with respect to ascertainment efforts and proposed programming, the "special issues."¹⁴ However, the Examiner in reaching his conclusions had considered evidence on Mid-Florida's ascertainment efforts and proposed programming which was related to its past operation on the Channel. The Board held such evidence to be inadmissible and stated:

Mid-Florida, as an initial applicant for a new facility, could not introduce any evidence relating to its or its principals\' "experience, performance, or broadcast record" on

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