concerning the use of alternatives to the 5 mv/m contour to measure area penetration
How later courts described this case
- concerning the use of alternatives to the 5 mv/m contour to measure area penetration
- decision whether to conduct rehearing is addressed to sound discretion of administrative agency
- Commission may adopt ALJ’s initial decision
Written by the judges who cited it.
The opinion
McGOWAN, Circuit Judge
(concurring separately):
I think the only difficult issue in this case arises from petitioner Northeast’s contention that the Review Board failed to take proper account of Naugatuck’s intention to use unnecessarily high power, the maximum available to a class III-B station. This argument finds solid support in two recent decisions of the Commission — Monroeville Broadcasting Co., 12 F.C.C.2d 359 -, P & F Radio Reg.2d - (1968), and The Tidewater Broadcasting Co., 12 F.C.C.2d 471 ,-P & F Radio Reg.2d- (1968). The decisions in both cases rested heavily on the applicants’ efforts or lack of effort to tailor their power to the needs of the designated suburban community. And the Commission explicitly rejected the argument, made in the instant case by the Commission’s counsel, that the applicant’s burden of proof in rebutting the presumption does not vary with the intensity of the proposed power and extent of city coverage.
That the Review Board in this case shared that discredited view, however, is indicated by its rejection, as “not of decisional significance,” of Northeast’s specific objections to Naugatuck’s allegedly excessive 5000 watts. This objection is not met simply by saying, as did the Board, that the high wattage “would result in the efficient and equitable utilization of the frequency.” Nor is the Board’s observation that WOWW would gain only 10,000 Waterbury listeners receiving a 2 mv/m signal wholly responsive to the charge that 100% coverage of Waterbury with a much stronger signal belies the professed intention to serve the suburb and not the city.
Were the Review Board’s decision the only Commission action before us, I would remand for further consideration of this critical issue. However, there is an indication in the record that the Commission addressed itself to the applicant’s high power and was satisfied that the proposal was not excessive. Thus, Commissioner Cox, concurring in the denial *761 of the application for review, noted that the shift from 860 kc to 1380 kc required an increase in power in order to achieve a signal of comparable intensity. There seems to be no dispute that 1000 watts was inadequate for this purpose. And Naugatuck in its brief and at oral argument has represented to the court, without contradiction by Northeast or the Commission, that “under Commission rules, no new grants are made for intermediate powers between 1 kw and 5 kw.” Perhaps this is what the Review Board had in mind by its cryptic reference to efficient use of the channel. In any event, because the Commission could rationally accept this explanation in rebuttal of the presumption, I concur in affirming the grant of Naugatuck’s application.