# Community Broadcasting Co. v. Federal Communications Commission > Court of Appeals for the D.C. Circuit · February 8, 1960 · 274 F.2d 753 URL: https://www.frixlaw.com/law-library/cases/6918911 ## Case - **Full name:** COMMUNITY BROADCASTING CO., Inc. v. FEDERAL COMMUNICATIONS COMMISSION, Modern Broadcasting Company of Baton Rouge, Inc., Intervenor. COMMUNITY BROADCASTING CO., Inc. v. UNITED STATES of America, Federal Communications Commission, Modern Broadcasting Company of Baton Rouge, Inc., Intervenor - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** February 8, 1960 - **Citations:** 274 F.2d 753 - **Precedential status:** Published - **Opinion:** Dissent by Danaher - **Judges:** Burger, Danaher - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6918911 ## Opinion text DANAHER, Circuit Judge (dissent- . ing). A petition was filed with the Commission in October, 1957, for the institution of rule-making proceedings looking to the reassignment of VHF Channel 9 from Hattiesburg, Mississippi to Baton Rouge, Louisiana. 1 The Commission on June 1, 1959, adopted a Report and Order amending its nationwide table of television assignments by shifting Channel 9 to Baton Rouge. The public interest determinations upon which the action was taken appear in 18 Pike & Fischer Radio Reg. 1666, 1669-1670 (1959). The result of the rule-making is not here challenged, 0n June 15> 1959’ mtervenor Modern filed an application for a construction Permit on Channel 9 at Baton Rouge, dune 1959> Modern asked for special temporary authorization to permit ^mediate use of the channel. No other application for any type of service on Channel 9 was then before the Commission‘ Modern expressed its complete willingness to accept the STA condition-ad^ 2 47 U.S.C.A. §§ 308 and 309, of course, apply to any STA. If upon examination of the pending application the Commission could find that Modern qualified un *764 der section 308(b) and that section 309 (a) requirements could be met, the Act says the Commission “shall grant such application.” After the rule-making proceedings had gone forward nearly two years and had clearly established the need for the shift of Channel 9 to Baton Rouge, with the qualifications of Modern already established as it was a licensee on Channel 28, with the pending application disclosing whatever additional data might be required, with only one request before it for an STA, the Commission granted temporary authority to Modern. 3 Community filed no protest under 47 U.S.C.A. § 309 (c) as the Act clearly would have permitted it to do. Although previously Community had indicated that it might file an application of its own for an STA, it did not do so. 4 It did file a petition for reconsideration under 47 U.S.C.A. § 405 , only to withdraw it without giving the Commission a chance to pass upon whatever contentions it might choose to submit. I suggest that Community has no standing whatever in this court. 5 In granting the only pending applieation for an STA, the Commission not only recognized the stipulated terms suggested by Modern but incorporated them into its order. Both Modern and the Commission are bound by them, and “until and unless the contrary is shown, we must assume that the Commission will act in good faith * * *.” 6 Thus Modern and Community have before the Commission co-pending applications for a construction permit. The applications are mutually exclusive and an Ashbacker hearing must ensue. It may be a matter of years before that hearing can be concluded. Interim service meanwhile can be provided by YHF Channel 9 at Baton Rouge, the public need for which was long since demonstrated and is not under attack. The Commission evolved a practical, and in my view, a proper solution of the problem before it without the slightest impingement upon the respective rights of Modern and Community. The end re-suit, on the other hand, gave the public the benefit of an early and competitive VHF service in Baton Rouge, quite in accord with the rule-making determination. I think the Commission action furthered the purposes of the legislation, On the record here made, we should not substitute our judgment for that of the body whose duty it is to administer the Act. I would dismiss, . Some measure of understanding of the Commission’s problem with respect to VHF and UHF allocations may be gleaned from Owensboro on the Air, Inc. v. United States, 1958, 104 U.S.App.D.C. 391 , 262 F.2d 702 and the cases cited in our footnotes, certiorari denied, 1959, 360 U.S. 911 , 79 S.Ct. 1296 , 3 L.Ed.2d 1261 . . Modern noted that if given permission for interim operation on Channel 9 it would be “willing to conduct such temporary authorization under the express condition that it will expire automatically upon the commencement of any regular operation * * * by a permittee so authorized by final action of the Commission * * It also stipulated that “no effect whatsoever shall be given to any expenditure of funds * * * and no preference shall be accorded to us by virtue of the grant * * . cf. Peoples Broadcasting Co. v. United States, 1953, 93 U.S.App.D.C. 78 , 209 F.2d 286 . . It did file an application for a construetion pemit before the STA was issued. . See Unemployment Compensation Commission of Territory of Alaska v. Aragan, 1946, 329 U.S. 143, 155 , 67 S.Ct. 245 , 91 L.Ed. 136 ; Albertson v. F.C.C., 1957, 100 U.S.App.D.C. 103 , 243 F.2d 209 . . Peoples Broadcasting Co. v. United States, 93 U.S.App.D.C. at page 81 , 209 E.2d at page 288. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6918911. Public record. Not legal advice.