Deep South Broadcasting Co. v. Federal Communications Commission

278 F.2d 264

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 14, 1960
• Docket: No. 15257
• Status: Published

Opinions

BAZELON, Circuit Judge.

Appellant, Deep South Broadcasting Company, has a construction permit for a new commercial television station at Selma, Alabama. This appeal is from a decision of the Federal Communications Commission released September 8, 1958, which denied appellant’s application for modification of the construction permit in respect to power, antenna height, and antenna location; also from the Commission’s memorandum opinion and order released June 12, 1959, which denied appellant’s petition for reconsideration.

Appellant urges five errors: two upon procedural matters, two upon the Commission’s substantive findings, and one upon the Commission’s statutory authority.

The first procedural error alleged relates to § 309(b) of the Communications Act.¹ No objection is made to the Commission’s designation of the issues upon appellant’s application to modify the outstanding construction permit for hearing. Subsequently, however, the Commission granted several petitions to intervene and found that these intervenors had raised a substantial question concerning Deep South’s financial qualification to construct a structurally suitable tower. It thereupon enlarged the hearing to include this issue without giving appellant a second notice and opportunity to reply pursuant to § 309(b). Appellant complains about this lack of notice. The Commission contends that by its terms § 309(b) does not apply to the enlargement of issues once a hearing has been formally set in accordance with its require-merits.² We need not decide this question since appellant was not prejudiced in any event. It had an opportunity to, and did in fact, respond to intervenors’ motions to add the financial issue to those already set for hearing. “Designations for hearing, like pleadings under modern procedure, are for the purpose of reasonably apprising the party of the issues involved, and are not to be struck down for non-prejudicial deficiencies.” Mansfield Journal Co. v. Federal Communications Commission, 1950, 86 U.S.App.D.C. 102, 110, 130 F.2d 28, 36. Clearly, appellant was fully aware throughout the hearing that the financial question was in issue,

The second alleged procedural irregularity is the Commission’s failure to make findings and conclusions upon “other issues” even though it determined that the application must be denied on the grounds that appellant was financially unqualified. Section 8(b) of the Administrative Procedure Act, upon which appellant relies, contains no such requirement.³ An agency, like a court, need not decide questions which are not relevant to its decision,

The appellant’s attacks upon the Commission’s findings are also without merit. Appellant abandoned its original proposal to build the tower for $131,000 through Vulcan Tower Company, a partnership composed of the two principal stockholders of Deep South. Instead, it attempted to show that it would buy the tower for $200,000 from its principal supplier of broadcasting equipment, Standard Electronics. Standard, in turn, was to purchase the tower from Vulcan at $190,000. The appellant stated that Standard had orally agreed to advance Vulcan $190,000 as “a loan” with which to build the tower. But the Commission found that Standard had made no such commitment. We cannot accept appellant’s argument that this finding was co^rary to the weight of the evidence,

Appellant says that, even if Standard had not agreed to advance Vulcan the funds necessary to construct the tower, the record demonstrates that each of the principal stockholders in Deep South (the partners in Vulcan) are personally able to supply the necessary money, While the Commission found that these men were capable of financing the undertaking, it also found that they had^ not demonstrated a willingness to commit so large a portion of their personal fortunes to the venture.⁴ There is no basis for disturbing this finding.

The other finding under attack concerns the Commission’s second ground of decision: namely, the appellant’s failure to show that it could build a structurally sound tower almost 2,000 feet in height, or 400 feet taller than any man-made structure,⁵ twice as high as the Eiffel Tower or half again as tall as the Empire State Building. To establish the structural suitability of its tower, appellant relied upon the drawings prepared by one of its principal stockholders, Mr. Brennan, a structural engineer, and its conformity with a document published by the Radio-Electronics Television Manufacturers Association (RETMA Standard TR 116). In rebuttal one of the intcrvenors presented evidence through Mr. Edward Staubitz,^ an experienced tower engineer and chairman of the committee which drafted the RETMA document in 1945. He testified that the committee had not concerned itself with towers over 1,000 feet in height, and that Mr. Brennan’s plans failed to take into account the wind resistance which the tower and its accessories would present. The testimony of neither witness appears wholly convincing. But it does not follow, as appellant urges, that the Commission erred in finding that appellant failed to sustain its burden of showing that its proposal was structurally sound.

Finally, we reject appellant’s challenge to the Commission’s statutory authority to inquire into a tower’s strucfurai suitability. Aside from its author-j-jy to determine an applicant’s technical competence to operate a television station,⁶ and to ascertain whether licensed installations conform to the Commission s construction regulations,⁷ the ability of a licensee to build a tower which will be saie and will provide uninterrupted service is a clearly relevant public interest consideration.

We fully agree with our dissentjng colleague that a proceeding of this jámj EOt intended to be adversary in natUre” and that the Commission should assist applicants in making a record wfjcf will enable it to make an intelligent public interest determination, There is no evidence or claim, however, if,at the Commission has information re]evant to high towers which it has not mac¡e available to the appellant. And there is nothing to indicate that sufficient information and experience are yet availt0 the Commission for the purpose o;j formulating engineering standards governing the construction of such high towers

Affirmed.

1 . That section reads in pertinent part:

“If upon examination of any such ap(plication the Commission is unable to * * * [find that the public interest, convenience and necessity would be served , -n £ ,, by the granting thereof] it shall forth- ... .... ., with notify the applicant and other known j •, parties m interest of the grounds and reasons for its inability to" make such finding. Such notice, which shall precede formal designation for a hearing, shall advise the applicant and all ■other known parties in interest of all objections made to the application as well as the sourcg and nature of such objections. Following such notice, the applicant shall be given an opportunity to reply. If the Commission, after consid■ering such reply, shall be unable to make the [necessary] findings, * * * it shall formally designate the application for hearing on the grounds or reasons then obtaining.” [48 Stat. 1085 (1934), as amended, 47 U.S.C.A. § 309(b) (emphasis supplied).]

2 A ~ .. . , , 2. See italicized portion of statute quoted . , - m * .. at note 1, supra. The Commission con- . , .. . J J. „ tends that this interpretation reflects its . „ pievious prac ice. ee ox a ey Broa,ica,mug Co 17 Pike & Fischer Radio Begs. 841 (1958).

3 . That section reads in pertinent part: “All decisions * * * shall become a part of the record and include a statement of (1) findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record.” [60 Stat. 242 (1946), 5 U.S.C.A. § 1007 (b).]

4 . One of tlic principal stockholders of Deep South, Mr. Brennan, testified he was willing to commit himself “for $100,000 in excess of * * * [what] I am already committed for - • ■ Mr. William Benns,^ Jr., the other principal stockholder, said he would assist the corporation financially if it became necessary.” But in view of the fact that Mr. Benns had only $90,150 in uncommitted liquid assets and the tower would cost $190,000, we cannot say that the Commission erred in concluding that his commitment was too vague to justify the inforence that he would commit the entire balance of his personal fortune to the partnership venture.

5 , a 1,610 foot television tower in Jtoswell, New Mexico, is the world’s tallest man-made structure. N.Y. Telegram, World Almanac 704 (1958).

6 . 48 Stat. 1089 (1934), as amended, 47 U.S.C.A. § 319(a).

7 . 48 Stat. 1082 (1934), as amended, 47 U.S.C.A. § 303 (n).