Price Broadcasters, Inc. v. Federal Communications Commission

295 F.2d 166

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 22, 1961
• Docket: Nos. 16039, 16043
• Status: Published

Opinions

DANAHER, Circuit Judge.

The Commission consolidated for hearing three applications for construction permits for standard broadcast stations on the same frequency, 1320 kc. Price sought a construction permit for a station at Frederick, Maryland. Monocacy, already operating WFMD at Frederick, sought a permit to establish a new station to operate unlimited time at Gettysburg, 32 miles away. WGET sought to change its existing Gettysburg facilities from 1450 kc, unlimited time, to 1320 kc, 1 kw daytime and 500 w nighttime. The examiner concluded that the need¹ for a second local station at Frederick exceeded the need either (1) for a second station at Gettysburg or (2) for improving the broadcasting facilities of WGET. He recommended an award to Price even though the two Gettysburg applicants proposed to operate from Gettysburg both day and night, whereas Price, the Frederick applicant, proposed only daytime service.

Nevertheless, the Commission after oral argument on exceptions filed by the parties concluded that the intendment of section 307(b) of the Act, 47 U.S.C.A. § 307(b), would better be fulfilled by a grant of either of the fulltime proposals for Gettysburg. The Commission decided that it was more important that even a comparatively small number of persons in the Gettysburg service area receive a primary nighttime service and supplemental daytime service than that a larger number of persons in Frederick receive additional daytime service. We are satisfied that the record establishes an adequate basis for the Commission's conclusion that a fair, efficient and equitable distribution of radio service would be accomplished more certainly than would be the case if the grant had followed Price’s Frederick proposal for service daytime only.²

The Commission then went on to conclude that the Monocacy proposal to bring a second local service to Gettysburg, important though it might be, was of secondary significance since WGET was found to be substantially superior to Monocacy “in virtually every area of standard comparative consideration.” Factors so weighed and found in favor of WGET included past broadcast performance, awareness of the needs of the Gettysburg service area, local residence, diversification of business interests and participation in the civil affairs of Gettysburg. The Commission’s decision reflected its further determination that WGET would better serve the public interest than would Monocacy, not only because WGET was deemed markedly superior to Monocacy on the basis of past performance and like factors but because WGET with the changed facilities and expanded coverage would continue to provide the only local service to Gettysburg.

Specific details predicating the Commission’s determination on this aspect may be perceived from certain of its conclusions which we set forth verbatim:

“Monocacy would bring a second local service to Gettysburg. Daytime, it would serve virtually 100% of the land area of Adams County, and would serve a total interference-free area of 1,211 sq. mi. having a population of 93,676. In addition to WGET’s present operation, Gettysburg presently receives primary service daytime from Stations WBAL, Baltimore, WHVR, Hanover, and WHP, Harrisburg. The whole of Monocacy’s 0.5.mv/m area is presently served with such a signal by the foregoing stations, and within this area is presently received a minimum of six and a maximum of twelve other primary services. The 2.0 mv/m contour of Monocacy would encompass the city of Littlestown and would bring that city a fourth such primary service.

“Daytime, WGET would serve 96% of the land area of Adams County, and would serve a total interference-free area of 1,233 sq. mi. having a population of 113,470. This would be a gain of 65,224 persons, 14,985 of whom live in the cities of Littlestown, McSherrystown and Hanover, Pennsylvania. Each of the latter two cities presently receives at least five other 2.0 mv/m signals, 50% of Hanover receiving six. Within the WGET gain area there is presently received a minimum of five 0.5 mv/m signals and a maximum of thirteen.

******

“The WGET nighttime interference-free contour would encompass 29.8 sq. mi. having a population of 9,276. Within the foregoing area are 18.3 sq. mi. wherein 1,348 persons presently receive no nighttime primary service from any source. A grant of the WGET application, then, would bring a first nighttime service to all of these areas and persons. On the other side of the coin, however, such a grant would recreate white areas totaling 2.4 sq. mi. having a population of 217. The net white area gains of WGET would thus be 15.9 sq. mi. containing 1,131 persons. The Monocacy nighttime interference-free contour would encompass 23.3 sq. mi. with a population of 8,278. Of these, 7,717 would be receiving only their second nighttime primary service, and 561 would be receiving their first. In view of the considerations set forth here— the white area proposal of WGET and the white and gray area proposals of Monocacy — we believe that there is ample reason for preferring either of the Gettysburg applications to that of the lone application for Frederick.”

The findings in the examiner’s Initial Decision, except as modified in the light of the exceptions, were adopted. Not disturbed was his appraisal that “The manner in which Station WGET has served Gettysburg and Adams County was documented in minute detail,” including its “most generous” offers of its facilities to the numerous civic, religious, educational, social and other public service organizations in Gettysburg and Adams County. He found that if WGET is the “successful applicant, its programming will be modified so as to devote more time and attention to the activities in the areas and communities which do not now receive primary service from the station.” It is our view that ample basis was shown for the Commission’s ultimate conclusion that WGET is entitled to a substantial preference over Monocacy.

The Commission concluded that the public interest would better be served by permitting a superior existing station to expand its coverage than by making an award to a new but inferior competitor. Before we could overturn the Commission on this important aspect of the case, we would be bound to say that the Commission’s conclusion as a matter of law was arbitrary and capricious.³ The record simply does not justify our doing so, for exercise of the decisional process in so close a case ⁴ was singularly within the Commission’s prerogative, not ours. That the frequency to be vacated by WGET as a result of the award would thereafter be available for assignment to some other applicant is an important by-product of the Commission’s final decision. In sum, the Commission’s ultimate judgment is well within the area of its allowable discretion and rests upon appropriate and adequately fortified public interest criteria.

We have examined the record and considered carefully the arguments advanced by the competing applicants. We are satisfied that the contested conclusions of the Commission do not lack substantial support in the record as a whole.⁵

No error of law having been exhibited to us with respect to the Commission’s decision, our review function is at an end. The Commission’s decision is Affirmed.

1 . We may take it as undisputed “that the Frederick region has been growing at a substantially faster rate than has the Gettysburg region,” as the Commission later notea. ' ■ '

2 . Cf. F. C. C. v. Allentown Broadcasting Co., 1955, 349 U.S. 358, 362, 863, 76 S.Ct. 855, 99 L.Ed. 1147.

3 . Cf. Kentucky Broadcasting Corp. v. Federal Communications Comm., 1949, 84 U.S.App.D.C. 383, 174 F.2d 38.

4 . As the Commission was aware, not unrelated to the problem of assignments in the Frederick area were the issues raised in Richard Lewis, Jr., Inc., (Monocacy Broadcasting Co.) v. F. C. C., 1961, 110 U.S.App.D.C. 269, 292 F.2d 762.

5 . Universal Camera Corp. v. National Labor Relations Bd., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.