WJR, The Goodwill Station v. FEDERAL COMM. COM'N, No. 9464.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: STEPHENS, EDGERTON, CLARK, WILBUR K. MILLER, and PRETTYMAN, Associate Justices
• Citation: 84 US App. DC 1,174 F.2d 226
• Parties: WJR, THE GOODWILL STATION, Inc. v. FEDERAL COMMUNICATIONS COMMISSION (COASTAL PLAINS BROADCASTING CO., Inc., Intervener).
• Docket Number: No. 9464.
• Decision Date: 07 October 1948

84 US App. DC 1, 174 F.2d 226 (1948)

WJR, THE GOODWILL STATION, Inc.
v.
FEDERAL COMMUNICATIONS COMMISSION (COASTAL PLAINS BROADCASTING CO., Inc., Intervener).

No. 9464.

United States Court of Appeals District of Columbia Circuit.

Reargued June 11, 1947.*

Decided October 7, 1948.

174 F.2d 227

COPYRIGHT MATERIAL OMITTED

174 F.2d 228

COPYRIGHT MATERIAL OMITTED

174 F.2d 229

Mr. Kelley E. Griffith, with whom Messrs. Louis G. Caldwell, Reed T. Rollo and Percy H. Russell, Jr., were on the brief, for appellant

Mr. Max Goldman, Attorney, Federal Communications Commission, with whom Mr. Benedict P. Cottone, General Counsel, Mr. Harry M. Plotkin, Assistant General Counsel, and Mr. Paul Dobin, Attorney, Federal Communications Commission, who entered appearances, were on the brief, for appellee.

Mr. Frank U. Fletcher, who entered an appearance, for intervener.

Mr. Robert T. Barton, Jr., who was permitted to argue as amicus curiae, urged affirmance.

Before STEPHENS, EDGERTON, CLARK, WILBUR K. MILLER, and PRETTYMAN, Associate Justices.

STEPHENS, Associate Justice:

This is an appeal by WJR, The Goodwill Station, Inc. (hereafter referred to as WJR), from a decision of the Federal Communications Commission of August 22, 1946, granting without hearing the application of the Coastal Plains Broadcasting Company, Inc., the intervener herein (hereafter referred to as Coastal Plains), for a construction permit to erect a new standard broadcast station.¹ WJR seeks relief also in the appeal from a decision and order of the Commission of December 17, 1946, denying without hearing the appellant's petition for reconsideration of the Commission's decision of August 22, 1946.

Station WJR, located in Detroit, Michigan, is a Class I-A clear channel station with a non-directional antenna, licensed by the Commission to broadcast without time limit on an assigned frequency of 760 kilocycles with 50 kilowatts power, the maximum power with which any station may operate under Section 3.22 of the Commission's Rules and Regulations (hereafter referred to as rules). In 1945 in response to the request of several Class I-A stations for increases in authorized power and in response to the requests of other parties for new stations to operate on Class I-A channels, the Commission instituted a rule — making proceeding called the "Clear Channel Hearing." This hearing, as characterized by the Commission in its order for the same, was for the purpose, among other

174 F.2d 230

things, of determining "What minimum power and what maximum power should be required or authorized for operation on clear channels" and "Whether and to what extent the authorization of power for clear channel stations in excess of 50,000 watts 50 kilowatts would unfavorably affect the economic ability of other stations to operate in the public interest." During the pendency of this Clear Channel Hearing the Commission on June 21, 1946, announced a policy of considering on their individual merits applications involving use of I-A channels, daytime or limited time, where the proposed station is 750 miles or less from the dominant I-A station using a non-directional antenna on the frequency requested. It was pursuant to this policy that the Commission on August 22, 1946, granted the application of Coastal Plains for a permit to construct a radio station. This station was to be located at Tarboro, North Carolina, for operation with 1 kilowatt power daytime only on a 760 kilocycle frequency, to wit, the same frequency as that on which, as above stated, WJR operates

Pursuant to Section 405 of the Communications Act, 47 U.S.C.A. § 151 et seq., WJR filed with the Commission a petition for reconsideration of the decision of August 22, 1946. Therein it requested that the Coastal Plains application be designated for a hearing before the Commission in which WJR could participate. WJR alleged that its present interference-free service area would be subjected to objectionable interference by the operation of the Coastal Plains station. An engineering affidavit filed in support of the petition stated that the service of WJR would be interfered with between 10 a. m. and 2 p. m. in all of upper Michigan and in several counties or fractional parts of counties in lower Michigan, an area in which the field intensity of WJR averages 32 microvolts per meter or less during daytime hours, and stated further that in much of this region WJR provided the best signal available. WJR's petition alleged also that the "FCC Radio Survey, July 1945," a part of the record in the Clear Channel Hearing, showed it was the most listened to station in the areas of Michigan above mentioned. In effect WJR's petition asserted that granting the Coastal Plains application would constitute an indirect modification of WJR's license. As an alternative to its prayer for a hearing WJR requested that action on the Coastal Plains application be deferred until the conclusion of the Clear Channel Hearing, asserting as a foundation for this alternative request that if the Commission as a result of the Clear Channel Hearing should amend its rules so as to permit clear channel stations to operate with increased power, a prior grant of the Coastal Plains application would make it difficult for the Commission to grant any increase to WJR.

Coastal Plains filed with the Commission an opposition to the petition of WJR. The opposition was, so far as here pertinent, in effect what in common law terms is a demurrer, and under modern practice a motion to dismiss; that is to say, the opposition raised the question whether or not the allegations in the petition, assuming their truth, showed that the operation of the Coastal Plains station would cause objectionable interference to WJR within its normally protected contour and service area as defined by the Commission's rules and Standards of Good Engineering Practice (hereafter referred to as standards).

By its decision and order of December 17, 1946, the Commission denied without a hearing of any kind WJR's petition for reconsideration. In so ruling it treated the petition as if on demurrer. In its decision the Commission ruled that WJR was not entitled to be heard in respect of the application of Coastal Plains for the reason that under the Commission's rules and standards WJR as a Class I-A station was normally protected daytime to the 100 microvolt per meter contour, and that the area which it sought to have protected by virtue of its petition and supporting affidavit was served during the daytime with a signal intensity of 32 microvolts per meter or less and was therefore outside the normally protected contour. With reference to the alternative request of WJR, the Commission ruled that it would not serve the public interest to refuse licenses on Class I-A frequencies to Class II stations such as Coastal Plains because of the

174 F.2d 231

possibility that the Commission might determine in the Clear Channel Hearing that the power of Class I-A stations should be increased

The questions for decision in the appeal are: I. Whether in accordance with WJR's alternative prayer action on the Coastal Plains application should be deferred until conclusion of the Clear Channel Hearing. II. If the answer to this question is in the negative, is WJR entitled to a hearing before the Commission as to the sufficiency of the allegations of its petition, assuming their truth, to show indirect modification of its license by the granting of the Coastal Plains application. III. If the answer to this question is in the affirmative, i. e., if the Commission erred in its denial of such a hearing, may this court nevertheless rule upon the question whether the decision of the Commission — that the allegations of WJR's petition, assuming their truth, do not show an indirect modification of its license by the granting of the Coastal Plains application — was correct. IV. Whether WJR's prayer for hearing fails to request the hearing for which it contends on this appeal and whether this failure forecloses WJR's right to such a hearing.

I.

Should the Commission's action on the Coastal Plains application be deferred, in accordance with WJR's alternative prayer, until the conclusion of the Clear Channel Hearing: The answer to this question is in the negative. It is true that if as a result of the Clear Channel Hearing WJR's power were increased substantially above its 50 kilowatt authorization, its 100 microvolt per meter contour would be correspondingly increased and the operation of the Coastal Plains station might then cause interference within that protected area. But there are two difficulties with WJR's contention in this aspect of the case. First, to sustain WJR's contention it must be assumed (1) that the Commission will amend its rules so as to permit clear channel stations to operate with increased power; (2) that WJR will itself be granted an increase in power and that the resultant protected area under its license will be sufficiently extensive to include the area in which the operation of the Coastal Plains station will cause objectionable interference within the rules and standards of the Commission. WJR has no present rights in these supposititious eventualities. Second, the contention of WJR would require this court to direct the order in which the Commission shall consider its cases. This we cannot do. If by reason of procedural malarrangement the Commission commits error in the disposition of a given case, that error can be considered as can any other. But this court cannot direct in advance the order of precedence in the Commission's calendar.

II.

Preliminarily it is to be noted that in such cases as this case and L. B. Wilson, Inc. v. Federal Communications Commission, 1948, 83 U.S.App.D.C. 176, 170 F.2d 793, hereafter referred to as the Wilson case, there are two principal issues. The first is whether the operation of the applicant station (such as Coastal Plains) will cause...