WHDH, INC. v. United States, 72-1031.

• Decision Date: 01 March 1972
• Docket Number: No. 72-1031.,72-1031.
• Citation: 457 F.2d 559
• Parties: WHDH, INC., Petitioner, v. UNITED STATES of America, and Federal Communications Commission, Respondents, Boston Broadcasters, Inc., Intervenor.
• Court: U.S. Court of Appeals — First Circuit

457 F.2d 559 (1972)

WHDH, INC., Petitioner, v. UNITED STATES of America, and Federal Communications Commission, Respondents Boston Broadcasters, Inc., Intervenor.

No. 72-1031.

United States Court of Appeals, First Circuit.

Heard February 24, 1972.

Decided March 1, 1972.

Edward J. Kuhlmann, Counsel, Washington, D. C., with whom John W. Pettit, Gen. Counsel, Joseph A. Marino, Counsel, and Howard F. Shapiro, Atty., Washington, D. C., were on motion to dismiss for F. C. C. and the United States.

Donald E. Ward, Washington, D. C., with whom Benito Gaguine, Fly, Shuebruk, Blume & Gaguine, Washington, D. C., Hiller Zobel, and Brown, Rudnick, Freed & Gesmer, Boston, Mass., were on motion to dismiss for Boston Broadcasters, Inc.

William J. Dempsey, Washington, D. C., in opposition to motions to dismiss for WHDH, Inc.

Before McENTEE and COFFIN, Circuit Judges, and CAFFREY^*, District Judge.

COFFIN, Circuit Judge.

WHDH, Inc., owner of television station WHDH-TV, has petitioned this court for review, and a stay pending review, of a Federal Communications Commission order of February 2, 1972, which denied WHDH's petition to revoke or suspend an earlier FCC order of January 21, 1972. While other matters were covered by this earlier order, including the termination of WHDH's operating authority, effective March 19, 1972, WHDH deems itself, for purposes of this appeal, restricted¹ to attacking only that part of the order which granted program test authority (PTA) to Boston Broadcasters, Inc. (BBI), owner of station WCVB-TV. Its present position is that the FCC acted arbitrarily and without authority in authorizing PTA without first fully considering certain affidavits and documentary evidence allegedly demonstrating that BBI lacks the qualifications to be a television station licensee and without finding that the public interest would be served by permitting BBI to operate under PTA pending determination of its qualifications.

Our jurisdiction to deal with this challenge depends on what part of 47 U. S.C. § 402 applies. Since § 402(a) is a residual category, we have jurisdiction only if § 402(b) does not apply, such matters having been exclusively assigned to the Court of Appeals for the District of Columbia Circuit.² The FCC and BBI contend that this is an appeal by a "person . . . whose interests are adversely affected by an order of the Commission granting . . . an application" § 402(b) (6) "for a . . . station license . . .." § 402(b) (1). The legal question posed is whether program test authority, if not a license itself,³ is nevertheless "ancillary" to the exercise of FCC licensing power, cf. Tomah-Mauston Broadcasting Co. v. F.C.C., 113 U.S.App.D.C. 204, 306 F.2d 811, 812 (1962), or "in aid of and within the exercise of the Commission's licensing power". Cook, Inc. v. United States, 394 F.2d 84, 87 (7th Cir. 1968).

Program test authority is a step short of the granting of a station license. It follows "completion of construction of a television broadcast station in accordance with the terms of the construction permit"; it is issued only "when an application for station license has been filed showing the station to be in satisfactory operating condition"; it continues, subject to suspension or revocation, "during Commission consideration of the application for license" and is "automatically terminated by final determination upon the application for station license". 47 CFR 73.629. It is difficult for us to conceive of any FCC action more intimately associated with the exercise of its licensing powers than this penultimate stage. It is even more difficult for us to countenance the plight of the FCC and private parties, if review of an order granting or denying a station license were to lodge in the D.C. Circuit Court of Appeals while another court were, at the same time, to be reviewing a grant or denial of program test authority.

WHDH relies on Columbia Broadcasting Sys. of California v. F.C.C., 93 U.S. App.D.C. 399, 211 F.2d 644 (1954), for the proposition that an appeal challenging a grant of PTA is cognizable only under § 402(a). While that case did involve an effort to revoke program test authority which had been in effect for some six months, the relevant holding was not that anything dealing with PTA was a § 402(a) matter but that CBS could not make a § 402(b) claim as a person aggrieved by a modification of its license. This is made manifest by the court's citation of Radio Station WOW v. F.C.C., 87 U.S.App.D.C. 226, 184 F.2d 257 (1950), involving an attempt to modify a long standing license of Star Broadcasting Company by WOW, which claimed objectionable interference. The court said, "Quite clearly, we think, the `applicant . . . for modification of an existing radio station license' referred to in the statute is the owner of the license." 184 F.2d at 259. In other words, the issue in CBS (and WOW) was not the type of authority exercised by FCC, but whether CBS could bring itself within the "person aggrieved" language of § 402(b) (6), in circumstances where there was "an attempt to modify the authorization of a station already operating and on the air." Tomah-Mauston Broadcasting Co. v. F.C.C., supra, 306 F.2d at 812. Or to put it differently, a station...