WAIT Radio v. FCC, 24762.

• Decision Date: 20 March 1972
• Docket Number: No. 24762.,24762.
• Parties: WAIT RADIO, a co-partnership, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Midwest Radio-Television, Inc., et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

459 F.2d 1203 (1972)

WAIT RADIO, a co-partnership, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee Midwest Radio-Television, Inc., et al., Intervenors.

No. 24762.

United States Court of Appeals, District of Columbia Circuit.

Argued October 27, 1971.

Decided March 20, 1972.

Rehearing denied April 26, 1972.

Mr. Ramsey Clark, Washington, D. C., with whom Mr. Kenneth C. Bass, III, Washington, D. C., was on the brief, for appellant.

Mr. Edward J. Kuhlmann, Counsel, F. C. C., with whom Messrs. Richard E. Wiley, Gen. Counsel at the time the brief was filed, John H. Conlin, Associate Gen. Counsel at the time the brief was filed, Stuart F. Feldstein and Charles M. Firestone, Counsel, F. C. C., were on the brief, for appellee.

Mr. Michael Finkelstein, Washington, D. C., with whom Messrs. Peter Shuebruk, Herbert M. Schulkind, Howard J. Braun, R. Russell Eagen and Erwin G. Krasnow, Washington, D. C., were on the brief for intervenors. Mr. Martin E. Firestone, Washington, D. C., also entered an appearance for intervenor Carter Publications, Inc.

Before FAHY, Senior Circuit Judge, and McGOWAN and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

This case has been here before. It is brought here by WAIT Radio, a co-partnership licensed to operate a Class II-D standard (AM) broadcast station, with 5000 watts of power on 820 kHz from Chicago, on a daytime-only-basis. WAIT is an independent, locally-owned station which broadcasts quality music and public affairs programs designed to appeal to adult audiences. During the day, other stations, elsewhere in the United States, use the 820 kHz channel. At night, however, only WBAP, Ft. Worth, Texas, is authorized to operate on this Class I-A clear channel. 47 C. F.R. 73.25. WAIT petitioned the FCC to enlarge its daytime-only authorization. It seeks to operate full time at 10,000 watts, with a directional antenna system, in order to furnish its distinctive service to almost four and one half million listeners in Chicago.

The Commission met the request for a waiver of its rules by a memorandum opinion that stated that since WAIT's proposal would violate its rules, its application would be returned as unacceptable for filing. 10 F.C.C.2d 481 (1967); reconsideration denied, 11 F.C.C.2d 547 (1968). In WAIT Radio v. FCC, 135 U.S.App.D.C. 317, 418 F.2d 1153 (1969) (WAIT-I) we reserved judgment on the merits and remanded to the Commission for their reconsideration. We said that we must be satisfied that the agency had taken a "hard look" at the case, because "when an application pleads, and offers factual material in support of, a non-frivolous First Amendment contention, an agency may not dismiss it with the routine treatment that might suffice in the ordinary case."

We recognized the tension between the doctrine of judicial restraint, which requires of us considerable deference to agency decisions, and the practical necessities of judicial review, which require a minimum standard of articulation, so that we may discern the path which the Commission took on the way to its result. We acknowledged the impossibility of framing a universally applicable formula "for deciding when an agency . . . has crossed the line from the tolerably terse to the intolerably mute," but we identified in this case a number of symptoms, chief among them the perfunctory character of the agency's opinion, which persuaded us that the Commission had not measured up to the minimum standards of decisionmaking.

On remand, the FCC again denied the requested waiver, 22 F.C.C.2d 934, and again denied reconsideration, 22 F.C.C. 2d 1016 (1970). We are now satisfied that the "hard look" has been taken, and that we discern the Commission's path. Thus we address the substantive elements of the appeal, testing whether the FCC exceeded its discretion in denying WAIT's application for authorization to broadcast during nighttime hours. We affirm.

I. The Underlying Rules

This case involves the FCC's clear channel and nighttime broadcast rules. The rules themselves are not under attack, and we begin by sketching their content before identifying the points of dispute.

1. The Clear Channel Rules. The FCC's placement of stations on the 107 available frequency channels, each of the width of 10 kHz, with the objective of providing satisfactory signal strength to as many listeners as possible and service of local origin to as many communities as possible, had to take into account behavior of radio signals. Part of the energy from the transmitting antenna of a broadcast station is called a groundwave which provides the "primary" service used in broadcasting. The groundwave travels closely along the earth's surface; its intensity diminishes with distance but remains relatively constant at any location day and night and from season to season. A "secondary" service is provided by the skywave signal, which refers to that portion of the energy which travels upward from the transmitter into the upper atmosphere. In the daytime, because of the sun, this skywave is absorbed by the atmosphere. At night it is reflected, off layers of the upper atmosphere, back to earth, at distances much greater than the reach of the groundwave signal. While less constant in intensity than groundwave signals, the skywave signals are capable of providing service when free from excessive interference on the same or adjacent channels.¹ Duplication of stations on the same channel to provide local services and to enhance multiplicity of program choices for as many listeners as possible "dilutes the effective range of nighttime skywave propagation to distant rural areas where it may not be possible to provide local transmitters."

The concept of certain channels on which only one station is permitted to broadcast at night has long been accepted in practice. Frequency allocation to unduplicated channels has been a feature of federal communications policy for almost fifty years. "The primary objective of clear channel allocation is to render wide area service to residents of less densely populated portions of the country which are beyond the reach of interference-free nighttime service from other classes of stations."² An estimated one-half of the land area of the United States receives no usable groundwave service at night.³ The FCC calls such underserved areas "white areas." They are concentrated in the mountainous parts of the Middle Atlantic states and in northern New England, the Upper Great Lakes, the Great Plains, the South and the Rocky Mountains area.

In order to bring some service to these white areas, the FCC has by rule reserved twenty-five of the more than one hundred available AM frequencies to the use of clear channels. Prior to 1961, a clear channel was a frequency on which only one station could broadcast during nighttime hours. One problem with this policy of exclusivity — the Commission called it a "persistently plaguing deficiency" — was that, as a result of the policy, populous areas were almost overwhelmed with signals, while sparsely inhabited parts of the country remained without adequate service.

While the population of white areas increased by about 50% during the decade 1947-57, the broadcasting services to these areas stayed at about the same level.⁴ The FCC desired to improve broadcast services to white areas, but found that the only feasible route to effectuating such improvement was through a modification of the clear channel policy.⁵ In a rule-making proceeding, which culminated in a report and order dated September 13, 1961, the FCC ordered that thirteen of the twenty-five clear channels be "broken down" — in other words, that thirteen of the reserved channels be cleared for licensing to a subordinate broadcaster at night. The subordinate station would be far from the dominant station in miles, and would not be permitted to broadcast unless it protected the dominant station's 0.5 mv/m 50% skywave contour — in other words, no "objectionable interference"⁶ within roughly 700 miles of the dominant station's transmitter — and unless it also furnished some new service to a white area. This rule — usually referred to as "the twenty five percent rule" — requires that at least 25% of the proposed subordinate station's projected audience, or projected territory, must be without present primary nighttime broadcast service.⁷

"The underlying justification for modifying the clear channel policy was the compelling need to go as far as possible toward reducing the vast areas which lack any nighttime primary service."⁸ The Commission referred to such things as technical and engineering improvements in equipment like directional antennae, which simplified the process of minimizing obnoxious interference; but the polestar of the policy was to service underserved areas. Channel 820 — WAIT's channel — was not one of the channels which the Commission ordered available for duplication. It considered the idea of breaking down channel 820, but rejected it:

In selecting 640, 820, 1160 and 100 kc for inclusion in the no-duplication group, we have noted that these are the only I-A channels . . . serving the West; that the West is characterized by vast regions of low population density where skywave signals afford the only nighttime broadcast service; that a choice among skywave signals is not generally available to a substantial part of the West; and that acceptable locations for assignment of new unlimited-time stations on these channels would, in general, be limited to eastern areas already receiving abundant service. Accordingly, at this stage, we preserve the potential for improving skywave service which these channels afford.⁹

The FCC rules define a Class I station as a dominant station operating on a clear channel and designed to render primary and secondary service over an extended area and at relatively long distances.¹⁰ The FCC rules define a Class II station as a "secondary station which operates on a clear channel . ....