WJIV-TV v. Federal Communications Commission, 12598.

• Decision Date: 12 January 1956
• Docket Number: No. 12598.,12598.
• Citation: 97 US App. DC 391,231 F.2d 725
• Parties: WJIV-TV, Inc., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WSAV, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

97 US App. DC 391, 231 F.2d 725 (1956)

WJIV-TV, Inc., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee WSAV, Inc., Intervenor.

No. 12598.

United States Court of Appeals District of Columbia Circuit.

Argued October 10, 1955.

Decided January 12, 1956.

Mr. Philip M. Baker, Washington, D. C., for appellant.

Mr. Warren E. Baker, Gen. Counsel, Federal Communications Commission, with whom Messrs. J. Smith Henley, Asst. Gen. Counsel, Federal Communications Commission, and Isadore A. Honig, Counsel, Federal Communications Commission, were on the brief, for appellee.

Mr. Marcus Cohn, Washington, D. C., with whom Mr. Stanley S. Neustadt, New York City, was on the brief, for intervenor. Mr. Paul Dobin, Washington, D. C., also entered an appearance for intervenor.

Before BAZELON, FAHY and DANAHER, Circuit Judges.

DANAHER, Circuit Judge.

Intervenor, WSAV, Inc., on March 19, 1951 and petitioner, WJIV-TV, Inc., on July 1, 1952, filed applications for a construction permit for television Channel 3 at Savannah, Georgia. After comparative hearing, the Commission found both applicants to be legally, technically and otherwise qualified, that intervenor is financially qualified and that, comparatively, "The public interest, convenience and necessity would best be served by a conditional grant of the application of WSAV, Incorporated, and the consequent denial of the application of WJIV-TV, Inc." Petitioner raises no question concerning the Commission's determination with respect to the comparative merits of the competitors but urges upon us as error: the grant to intervenor upon a condition of non-use of construction begun prematurely in violation of § 319(a) of the Communications Act of 1934¹; that the Commission acted arbitrarily and capriciously in finding that a certain room built by intervenor was not premature construction; that the Commission, because of the mandatory language of § 319(a) was without power to grant intervenor's application since certain facilities for the operation of a station had been constructed without prior authorization by the Commission; and the Commission's failure to find that intervenor, because of membership in Savannah Radio Council had relinquished its responsibilities as a radio licensee and further had conspired through the Council to restrict competition in violation of the antitrust laws.

So far as the issues turned upon controverted questions of fact, the Commission's decision was within its competence and is supported by substantial evidence of record. It could properly have found within the limits of its own expertise that the room built by intervenor on the roof of the building in which intervenor's radio station was located possessed no "intrinsic television-facility function. So viewed, the interdiction of commencement of construction of a `station' does not encompass the type of construction involved with respect to the room." So, too, with respect to petitioner's complaint based upon intervenor's membership in the Savannah Radio Council, for the Commission found that a bylaw of the Council, alleged to be restrictive, was later rescinded and thus of negligible significance, and intervenor's earlier participation with other Savannah radio stations in protesting the Commission's action approving an additional radio broadcast station for the Savannah community was within its right, and was not of major concern in any event. We agree.

Actually, the issue in the case comes down to the applicability of § 319(a)² and the interpretation which is to control in the light of the facts and the record presented here. Petitioner contends that any premature construction precludes a grant and that the statute must be given mandatory effect.

Intervenor became licensee of radio station WSAV in Savannah in 1939. It received an FM license in 1947. In 1951 intervenor occupied the tenth floor in the Liberty National Bank Building in Savannah. Since 1904 there has been located an elevator-penthouse where the building's elevator and machine room are installed. In 1951 when intervenor filed its application, it specified to the Commission its plan to locate its television antenna on the roof of the bank building. It was permitted by the lessor at that time to open up the roof to ascertain whether the building's steel columns came up to the roof of the elevator-penthouse and to establish the thickness, location and load-bearing qualities of these columns. It was then discovered that the building's steel columns, 12½ feet apart, ran to the penthouse roof. Contemporaneously, the owners of the bank building were undertaking remodelling work on the whole building, necessary in order to comply with a state fire law which required enclosure of both the elevator shafts and the stair well of the building from street level to roof. Intervenor and the bank, as owner, determined that both parties would have need for the use of a boom and tackle on top of the building for the lifting of materials to and from the roof. Landlord and lessee thereupon agreed to share the expenses in arranging for the installation of the boom and tackle. The equipment was used by the intervenor to bring to the roof a 10-ton air conditioner for use in its tenth floor AM-FM offices, a WSAV roof sign, a generator, and steel ultimately to be used for the television tower. The same equipment was used by the bank to raise or lower heavy building materials such as metal doors, door frames, concrete blocks, and concrete, a large safe, a 10-ton air conditioner and cooling tower. The boom and tackle had been attached to the elevator-penthouse roof by connections with two steel columns, 25 feet apart. Steel sleeves were welded to these two steel columns, each sleeve extending approximately 6 inches below and approximately 14 inches above the elevator-penthouse roof. While this work was being done for the joint benefit and at the joint expense of the bank and the lessee, intervenor caused a third such steel sleeve to be welded to a penthouse column, 25 feet from the other two sleeves. Intervenor contemplated that the 3 sleeves in due course would be used as the base of its television tower although adaptation for such purpose by further construction would ultimately be required. The steel for the tower was delivered in December 1951, and unpainted and unassembled, it is still stored on the roof. Apparently the steel sleeves can readily be removed.

Some time in the spring of 1951, intervenor commenced construction of a room, 19 feet × 35 feet, on the building roof at a point immediately east of the elevator-penthouse, utilizing three walls, already part of the building, including the eastern penthouse wall and part of the parapet of the roof. Certain wiring and equipment were also placed therein for possible use in a training program, not actually undertaken. Nor was provision made for full power necessary to operate a transmitter, the Commission found. There is no clear record as to whether the room was intended for storage, for use in connection with the closed circuit personnel training program, or as a permanent part of the proposed television station. Extensive construction will yet be required, and television equipment, either delivered or under contract for delivery, must be installed. Such as is on hand has never been connected to electric power, in short, there is ample evidence to sustain the Commission's finding that the room possesses no "intrinsic television-facility function."

In these circumstances and in the light of full consideration of the respective claims and of the facts found, the Commission concluded that WSAV, Incorporated, should receive a "conditional"³ grant of its application. It then ordered "that the application of WSAV, Incorporated for a new commercial television station in Savannah, Georgia, to operate on Channel 3 IS HEREBY GRANTED subject to the condition that it does not utilize its presently proposed tower base, consisting of three steel sleeves installed on the penthouse-roof of the Liberty National Bank Building in Savannah * * *." (J.A. 303-304)

The condition imposed effects no material change in the proposal of WSAV, Incorporated, to locate its antenna tower on the bank building roof. Thus, we are in accord that the Commission acted within its authority in adopting the order quoted.⁴ My colleagues are of the view that we need go no farther and would now affirm the Commission order as a whole, without more.

II

While I agree so far as the result is involved, speaking for myself, I would prefer to rest our decision on a broader ground. It is true that the intervenor has not contested before us the requirement that it meet what seems to me an absurd burden. It may cut off the offending steel sleeves and install new ones on the same columns. It may reorient the tripod base of its tower on three different columns on the same roof. It has not pressed here its contention before the Commission that there was no "premature" construction, condemned by § 319(a) or otherwise. The Commission's brief describes its non-use order with respect to the 1951 construction as "but an application of the settled policy of the Commission" even as it points out: "Section 319(a) contains no requirement that the Commission must refuse a construction permit to an applicant who has begun premature construction." This is so clearly correct that I think we should say so, to the end that the way will be open to sensible future administration of the section without a cloudy obstruction of the Commission's exercise of its proper powers. The section by some has been read without regard to its "unless" clause by which the Commission always has it within its power to pass upon and approve — or disapprove — a proffered construction plan.

Confusion has arisen because some have had recourse to recommendations to be found in the legislative history, or to proposals in various bills while Congress wrestled with the radio...