Appendix — Sangamon Valley Television Corp. v. United States

ae . ° sol

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

So. ’

No. 17,279

Fort Harrison TELECASTI.;G CORPORATION, PETITIONER,

7

Vv.

FEDERAL COMMUNICATIONS COMMISSION AND

Unsirep States or “AMERICA, RESPCNDENTS,’

Tuuiana TELECASTING CorPoRATION,

Wasasnh VaL_ey BroapcasTInG CORPORATION, INTERVENORS,

No. 17,356

220 TELEVISION, INC., PETITIONER,

Vv.

. FEDERAL CoMMUNICATIONS COMMISSION AND

Unirep States or AMER'CA, RESPONDENTS, o.

_AMErIcAN Broapcastinc-ParaMount Tueatres, Inc.,

Sionau Hint Tevecastinc Corporation, INTERVENORS.

2a

No. 17,380

Saxcamon Vatiey TELEVISION CORPORATION, PETITIONER,

. | v. ; we

FEDERAL ComMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA, RESPONDENTS,

Sicxau Hi TrELEcasTING CorPORATION,

Tnuiana TELEC ASTING CORPORATION;

AMERICAN BROADCASTING- ‘PARAMOUNT T'neatrts, Ixc., ~

Piatiss TELEvision Corporation, 2: ft

220 TeLevision, INc.,

‘Tue State or ILunots,

ae Merromeptia, Ixc., ~~ - |

» . INTERVENORS.

a

On Petitions for Review of an Order of the

Federal Communications Commission /

Decided June 27, 1963

‘ Mr. H. Ralph Johnston, of the bar of the Suprenje ( aT

of Indiana, pro hac vice, by ‘special leave of court, with

_whom Messrs. Edward F. Kenehan and Henry R. Goldstein

were on the brief, for petitioner i in No. 17,279.

Mr. Alan Y. Naftalin, with whom Mr. Bernard Koieen

was on the brief, for petitioner in No. 17,356,

Mr. D. M. Patrick, with whom Messrs. Stanley S. Harris

and Jay E. Ricks were on the brief, for petitioner in

No. 17,380. - i ‘

Mr. Daniél R. Ohlbaum, Associate General Counsel, with

whom Mr. Max D. Paglin, General Counsel, and Mrs. Louise

H. Renne, Counsel, Federal Communications Commission,

e

\

2

da

were on the brief, for respondent Federal rt Cn erage

Commission. Mrs. Ruth V; Reel, Counsel, Federal Cofi

munications Commission, also entered, ; an appearance ‘in

Nos. 17,279 and 17,356.

Mr. Thomas I]. Wall, with iid Mr. ‘ee B. Jacob was

+ on the brief, for intervenor Illiana Telecasting Corporation

in Nos. 17,27 9 and 17 380.

Mr. Michael H. Bader ie intervenor W abash Valley

- Broadcasting Corporation, in No. 17,279. Messrs... Andrew

. G. Haley and William J. Potts, Jr., were on the brief for

intervenor Wabash Valley Broadcasting Corporation in

No.] 17,279. ° : _— :

Nagao: Vernon L. Wilkinson, with whom Mr. James A. Me-

Ketina, Jr., was, on the brief, for imtervenor American

Broadeasfing- Paramount Theatres, Inc., in No. 17,356, and

intervenors American Broadcasting-Paramount Theatres,

Ine.,; Plains Television: Corporation and Metromedia, Inc.,

in No. 17,880. Mr. David S. Stevens also entered an ap-

pearance for intervenor Plains Televisions ‘orporation.

‘

Mr. Monroe Oppenheimer, with whom Mr. Isadore G. Alk

was on the brief, for intervenor Signa! Hill Telecasfing

Corporation, in Nos. serene and 17,580, .

Mre Maxwell Brooks Bous for ielortemen The State of

Illinois i in No. 17,380.

.Mr. iia Maines: teorney, Department of Justice,

was on the brief for respondent United States of America.

Before Bazrtox, Chief Judge, and. Wasuincrox and

Wricut, Circuit Judges: 7

WasHIncTon, Circuit Judge: These cases present ques-

tions arising from the action of the Federal C ommunica-

tions Commission in transferring from Springfield, Illinois,

the only VHF channel (Channel 2) allocated ‘to that city,”

_!

, 4a

-~

and substituting two UHF channels.’ Chanrel 2 was real-

located to St. Louis, Missouri, and Terre Haute, Indiana.

Both the removal of the channel from Springfield and the

reallocation to St..Louis and Terre Haute are challenged ’

here. Related matters are aiso. raised.

| ae :

The controversy has.a long history. On April 14, 4952,

the Federal Communications Commission issued its ** Sixth

Report and Order,’’ completing a national telévision allo-

cation plan for the 12 VHF channels and 70 UHF channels.

This ray rt and ede put into effect-a policy of ‘*inter-

inixing?” that is, allocating both VHF and CHE channels

to the’same communities. VHF Channel-2 was allocated for

use at Springfield, Illinois, along with two UHF channéls.

At that time the Sangamon Valley Television Company

(hereafter referred to as Sangamon), the petitioner in No.

17,380, which had previously applied for authority to con-

struct and operate a television broadcast station at Spring

fie. l, ametided its application to request the use of VHF

Channel 2 at Springfield. It «now haa only applicant for

t <

1We have heretofore dealt with a number of aapeet® of the

UHF-VHF problem, See dur devisions in Logansport Broad-

casting Corp, v. United: States, 05 U.S. App. D.C. 342, 210 F. 2d.

24 (1954); Coastal Bend Television Co. v. Federal Communi-

cations Commission, 98 U.S. App. DQ. 251, 234 F. 2d 656

(1956); Van ‘Curler Broadeasting Corp. v. United) States, 9s.

US. App. D.C, 482, 236 FP. 2d 727, cert. denied, 352 U.S, 935

(1956) <. WIRL Television Co. v. United: States, 102 U.S. App.

D.C 341, 233 F. 2 S65, vacated, 358 Us. 51 (495. . and

remanded to the Commission, 10%. Us\apr, D.C. 3h 274 F. 2d

83. (1959); Springtield Television Broatwasting: Corp. .v.. Fed-

‘eral Communications Commission, 104 U.S. App. D.C. 13, 259

EF. 2d 170 (1958). cert. denied, 358 U.S. 930 (1959): Owens-

boro onthe Air, Inc. ¥. United States, 144 U.S. App. D.C. 391,

262 F. 2d 702 (1958), cert. dented, 360 U.S. 911 (1959); Trans-

continent mgt ision. Corp. v. Federal Comsiuapications Commis

sion, 113 US App. D.C. 384, 398 ‘F: 2d 339 (19622.

‘

.

.

3 j . e ,

% , ¢ “te 7 oor : < ig

. ’ _ , as

such use2 Channel, 2 has not been in actual use in

_ Springfield, . ,

den

| On Mareh 1, 1957, the Comniission issued a-Report and

Order amending the allocation plan adopted in 10. Thi-

“order adopted a policy of ‘‘deintermixing,”’ and began the |

process of assigning only VHF channels or only UME:

channels to a given community.’ In this order the Com-

mission took VHF Channel’2 from Springfield and as-

signed it for use in St. Louis, Missouri, and Terre Haute,

Indiana. In place of VHF Channelb 2, it allocated to

Springfield, two more. UHF channels: No. 36 and No. 26.

On Sangamon's appeal this court held that the order* de-

intermixing Springfield was not arbitrary, capricious, or

inconsistent with Section 307(b) of the Communications

Act. Sangamon Valley Television Corp. vg United States,

103 U.S.App.D.C. 113, 255 F.2d 191 (1998). The case’ was,

however, remanded to -us-by the Supreme Court, 308 1.5.

49 (1958), because of certain testimony given befory &

congressional committee subsequent to onPecision. We

thereupon vacated the Commission's 96¢der of March 1,

1957, and remanded the ease ‘for ab%vidential hearing as’

to’ the ex parte approaches madéto. the Commissioners it

connection with the 1957 Report and Order, as revealed’

in the cited testimony. Sangamon Valley Television Corp

2 The application of WMAY-TV for VHF Channel 2 at Spring

field has been withdrawn.

4% ¢

8The reason forethe change in polfty was the fact that ex-

perience had shown that as a general rule UHE® stations were

unable to compete successfully with VIIF Stations.. That is, they’.

were at a disadvantage in broadcasting range, in the price of

sets for receiving UHF signals, in obtainiyg network affiliations,

in securing listeners and advertisers, and were thus considered

less desirable. See, ¢.g., Coastal Bend Television’ Co. vy. Fedérat

Communications Commission, supra note 1; WIKL Television Co-

_& United States, supra note 1; Note, The Darkened Channels: CHF

Television and the FCC, 75@barv. L. Rev. 1575 at 1582 cf seq

. (1962). - 4

Ht

ba

v. Unite J States, 106 U.S.App.D.C. 30, 269 F.2d 211 (i959).

We later direc ted that an entirely new proceeding be con-

. ducted to determine where and to whom VHF Channel 2

should be assigned. Sangamon Valley Television Corp.

bv. Unite d States, 111 U.S ees 113, 294 F.2d 742

(1961). ne P 7 a- :

The Commission initiated and cunt sii pro-

ceeding relating to Channel 2, and in a Report and Order

issued July 20, 1962, reached the sanie ‘conclusions as in

its 1957 order: that VHF Channel 2 should be taken from

Springfield, Illinais, and be given to St.- Louis, Missouri,

and Terre. Hatte, Indiana, and that in compensation

Springfield should be awarded THE: Channels 26 and 36.!

sone

' | i. 3 ¢ .%

In No. 17,380, Sangamon and the State of Illinois as in-

terxenor ni appealed as to the action. taken in the 1962

i insofar as. it affeags Springfield. The parties have

stipulated that the questions presented are (1) whether the

Commission’s action in deleting the only VHE channel

assigned to Springfield, reassigning it to St. Louis and

Terre Haute, and substituting for it in Springfield two

—UHE channels, violated Section 307 (b) of the Communiea-

tions Act, 47 U.S.A" § 807(b) (1958), and (2) whether in

the circumstances this action was arbitrary and capricious.’

* The Commission in its 1957 order awarded Channel 2 in St.

Louis to Signal Hill Telecasting Corporation, and made a similar

award in its 1962 order, on a temporary basis. This award is not

before ug in the present group of cases.

5 As indicated above, both these eontentions were made in the

initial appeal and were found by us‘to be without merit. Sangamon

Valley, Television Corp. v. United States, 103 U.S. App. D.C. 113

255 F. 2d 191 (1958). We ree xamine-thé matter now in the light

of the record presently before us.

Court approved the principal that when fiutually exclu- |

Rive applicants seck authority to construct Stations to

e

ae

: ia

( 1) The etaeboel contention of Reade a the

State is that, Section 307(b)® ‘was violated beeaus: the

Commission failed to determine initially whether Springs

field on the one hand, or St. Louis and Terre Haute on the

other band, had the- greater need for VHF Channel 2,

which as a matter of eleetranic engine — could not be

utilized by all three cities. wows

*

In Federal Communications Commission v. Allentown

Broadcasting Corp.. 349 U.S. 358 (1955), the Supreme

serve different communities the Commission should first

determine. which community has the greater need for ad-

ditional serviees,- and then should determine any other

questions presented. See 349 U.S. at 361-62; We do not.

read Allentown as requiring that the relative needs of two -

communities for television, transmission service he deter-

mined ésolely on the basis of. the need for, FHF sery ice,

Nor has any decision to that effect been cited tous. In

Federal Radio Commixsion, V. Nelson Bros. Co., 289 U.S

246, 9R1-8P (1955), the Court said, ‘speaking ‘of comparable

provisions of the Radio Act of 1927, 44 Staz. 1166:

“We find in the. Act no command with the import

upon which respondents. insist. The command is that

there shall be a ‘fair and,-equitable allocation of -

licenses, wave lengths, time for operation and station

power-to each of the States within each zone.’ It can-

not -be said that this de manded equality between

States with respect to every type of station. ... In

6 Section 307(b) reads:

‘*In considering applications for licenses, and modiiies tions

and ren@wals thereof, when and insofar as there is demand

for- the Bose, the Commission shall make such distribution of

licenses, frequencies, hours of operation, and of power among

the several States and communities as to provide a fair,

efficient, and equitable distribution of radio service to earh

of the same.” | ..

-

Sa. ae .

making its ‘fair and equitable allocations,’ the Com-

mission was entitled and required to consider all the

broadcasting facilities assigned to the respective

States, and all the advantages thereby enjoyed, and

‘to determine whether, in‘view of all the circumstances

of distribution, a more equitable adjustment would be

effected by the-granting of the application of Station

WJKS:> and. the deletion of Stations WIBO and .

WPCC.” (Emphasis added.)

~The quoted Janguage appears equally applicable here.

We

conclude that so long as the television transmission ~

service allocated to a community, whether -it be solely .

VHF, UHF, or a combination of both, is determined on

the basis of relative need, amounts to-a fair and equitable

distribution of service for that community, in reiation to

others, and: gives efficient’ service to the community, the

standard set out in Section 307(b).is fully met.

We think that the Commission's action here with re-

‘spect to Springfield—-giving it four UHF channels, one

reserved for educational purposes,-and no VHF channel

—meets this test. The Commission stated that its ob-

“jective: was

and

Was

‘*to distribute television channel assignments in. the

manner which is most likely to augment opportunitie~

for, full and effective use of the, television broadeast

frequencies and. to. provide. the greatest amount of

television service to the public in the communities

involved. . ...”’

with respect to Springfield that its primary objective

‘‘to provide Springtield, the capital of the State of

Illinois, with a 1960 popuiation of 83,271 and a popu-

lation of 146,539 in its home county (Sangamon), with

television: assignments which offer the most realistic

opportunities for the development of adequate tele-

Vision services to fill the needs and interests of the

residents of the Springfield area. The question we

“9a

must decide is whether all UHF assignments or VHF .

Channel 2 in combination with UHF assignments

wouid best do xo under present conditions, for. it does

not appear that other VHF channels may be assigned

to Springtield under existing rules.”’

The Commissicn said further:

‘The responsibility of the Commission under the man-

date of Section 307(b) would clearly not be met by a

theoretically feasible VILF assignment at Springfield

_ which, in light of our conclusions, would have the

result, at least for the foreseeable future, of destrov-

ing or inhibiting existing service in either or both the

Springfield and St. Louis areas and of limiting op-

portunities for the growth of a greater number of

television outlets and services in Springfield... . as

well as in either or beth the St. Louis and Terre

Haute areas.”

The Commission implemented this conclusion with detailed

findings, with respect to each community involved, as to

population, existing service, the need for additional’ ont-

lets, and the type of additional service, UHF or VITF.

which would best mect this need. In deciding upon a final

pattern of assignments for Springfield and the other com- -

munities it took into account the public interest, the in-

ferior competitive position of UHF in a VHF market, the

competitive effect of Channel 2 in each of the communi-

ties before it,” so-called ‘“‘white areas’’ (areas which would

be without service), the greater coverage given by VHF,

7In Federal Communications Commission y. Allentown Broad-

easting Corp., supra, the Supreme Court indicated that in apprais

ing the relative needs of communities for additional serviee, it is

within the’ Commission's discretion to consider the need of one

community for local competition. 349 U.S. at 362. See also Fed-

eral Communications Commission v. Sanders Radio Station, 30%

U.S. 470 (1940). - We think it clear that the Commission here

could. as it did. consider the impact of Channel 2 on local VHF

competition in Springfield, and the needs of St. Louis and Terre

Haute for Channel 2 from competitive ‘and sther standards. ,

; 10a

and the satisfactory service being given by UHF in

Springfield.

The record shows that by 1960 all of the homes having

television sets in Sangarmhon County; in which Springfield

is situated, were equipped for UHF reception, that sub-

stantial percentages of the television homes in neighbor-

ing counties were similarly equipped, and that publie ac-

ceptance of UHF in central Illinois had increased sub-

stantially. Furthermore; Congress, at the Commission’s

urging, has enacted legislation authorizmg the Commis-

sion to require that all television receiving sets sold to—

the public after shipment in interstate or. foreign com-

merce be equipped to receive all channels. See Act of

July 10, 1962, Publie Law 87-529, 76 Svat. 150. The Com-

mission believes that. if sets are so equipped, UHF will be

increasingly used and expanded in intermixed’ artas and

that UHF will have an incentive to improve~tts techno-

logical and service potentials.

The action taken here was of course in a rule-making

proceeding. It is not for us to pass on the wisdom of a

channel allocation scheme, but only to ascertain whether

‘*the Commission actior in this area committed to. its dis-

cretiyn has a reasonable factuai and: legal basis.’’ See

Coastal Bexd Television Co. v. Federal Communications

Commission, supra note 1; WIRL Television Co. v. Unit-

ed States, supra note 1. We cannot .say that the Com-

mission’s informed deeision,: that Springfield's need for

additional television transmission service was fairly, ef-

ficiently, and equitably met by the allocation made to it,

was in violation of the statute. While we entirely sym-

pathize with the desire of the State of Illinois and Sanga-

mon for a VHF channel at Springfield, it is mot within our

competency or function to say that Springfield’s need

could be met only by a single VHF channel rather than

by two additional CHF channels, in the light of all the

circumstances shown.

~

lla

(2) We reject the. argument that the Commission’s de-

cision to delete Channel 2 from Springfield and substitute

two UHF channels therefor was arbitrary and capricious

because it duplicated the Mareh 1, 1957, decision on the

question. The Commission States in its Report that it

made its present decision in the light of current considera-

_ tions and current appraisals of the needs of the communi.

ties involved, rather than those of 1957. In our view, its

conelusions are amply explained and supported by its

findings. We note also that the membership of the Com-

mission which rendered the 1962 decision was substan-

tially different from the membership purticipating in the

1957 decision. .

Nor do we think it arbitrary to deintermix Springfield,

even though deintermixture proceedings are in general

being held in abeyance, pending results under the new all-

channel legislation mentioned above. | The Commission

notified Congress” that the Springfield case would be one —-

of four proceeded with because it would pot involve any

dislocation or disruption of existing service in the areas

involved.” As we pointed out in W/RL Television Co, V.

United States, supra at 344, 253 F.2d at 866, with respect

to deletion. of a VHF channel and substitution of two

_UHF channels at Veoria, [linois, in.similar circumstances,

the long range-goal of the Commission—which is reflected -

in the legislation—is to encourage UHF.. As Springfield

has never made use of VITF Channel 2, it is not arbitrary,

as it was not in WIRT:, to conclude that the goul will be

better approached ‘*by allotting it four technically equal

°

“See H.R. Rep. No. 1559, 87th Cong., 2d Sess., 7-5, 21, 22-26;

S. Rep. No. 1526, 87th Cong., 2d 5ess., 6-7, 14, 15-19.

® We have seen that Channel 2. assigned to Springfield in 1952,

has never been used there, but has been in use ‘in St. Louis on @

temporary basis following #) > 1997 allocation. See note 4, above.

12a

‘UHF channels, rather than one superior VHF channel

_Andtwo inferior UHF channels.’”° ‘

ae

In No. 17356, we are asked to review the decision of

the Commission—made in the same ruie-making preceed-.

ing—to allocate VHF Channel 2 in the Missouri*area to

St. Louis rather than to. Rolla- Salem, Missouri."

In'1959, petitioner 220, Television, Inc., was licensed to

operate on VHF Channel 11 in St. Louis. As the latest

licensee Of the four- -operators of VHF ‘stations there, it

was unable to procure a network affiliation. From April

1959 to October 1, 1961, its operating deficit was more

than $1,000,000. When the new proceeding in the Spring-

field ‘‘deintermixing’’ case was initiated in September

1961, 220 Television appeared before the Commission to

urge the allocation of Channel 2 to the Rolla-Salem sec-

tion of Missouri, which then had one unused UHF.chan-

nel assigned to it." The proposal was endorsed in numer-

In Greylock Broade ‘asting Co. v. United States, 97 U.S. App.

D.C. 414, 416, 231 F. 2d 748, 750 (1956). we said:

“*If this court were to declare now that a new VHF station.

which would eliminate UHF stations presently in an area. is

in the public interest, ‘that declaratign: would conclude the

whole controversy now being so exhaustively explored by the

Commission. We cannot do that on the evidence before us:

indeed it is not our function to declare initially what is in the

ultimate public interest.’

1 Rolla is a town with a 1960 population af 11,132 situated in

a county with a 1960 population of 25,396. Salem's 1960 popula-

tion was 3,870, and the 1960 population of the county: in which it

‘was located was 10,445. The two towns are about 26 miles apart.

12 This proposal would also have permitted use of Channel 2 at

either Springfield or Terre Haute under the Commission's spacing

requirements. As part of the proposal 220 Television committed

itself to apply for a permit to construct and operate a station to

broadcast on Channe! 2 at Rolla-Salem.

. 13a ss

ous letters from local residents, organizations and public

officials of communities inethe Rolla-Salem area. The

Commission, however, rejected the proposal, assigned:

Charinel 2 to St. Louis, and. awarded a license to operate

on’ Channel 2 to Signal Hill, as already indicated. 220

Television has appealed.

(1) Weare asked primarily to decide whether the Com-

mission made a fair, efficient, and equitable distribution

of broadcast: service as’ between St. Loujs and Rolla-

Salem consistently with Section 307(b) of the Communi-

cations Act. | ;

The Commission made detailed findings as‘to the tele-

-yision service presently available to the Rolla-Salem area,

its population, the number of homes equipped to receive

television, conditions of terrain and ‘other matters. an

pointed out that the assignment of Channel 2 to the area

would virtually establish a one station monopoly and that —

the use of UHF in the area would provide opportunities

for a greater number of local outlets and choice of serv-

‘ces, It also noted that Channel 2 could not be used in

the Rolla-Salem area ‘‘ without depriving a iarge area and

population in lin is and Missouri of a needed competi-

tive service.’’ It concluded that the public interest would

not be served by assigning Channel 2 to Rolla-Salem nor

‘would such an assignment achieve a fuller, fairer or more

efficient use of the television spectrum.

We think the Commission’s eonclusion with respect to.”

Rolla-Salem are adequately supported, explained, and

justified. We do not find them arbitrary and capricious,

and we .find no error warranting a_remand. Cf. Televi-’

sion Corporation ‘of Michigan v. Federal Communications

Commission, 111 U.S.App.D.C. 101, 4 F.2d T30 (1961).

(2) Only one other question among those argued has |

not been disposed of -by the foregoing discussion. I

Sangamon: Valley Television Corp. V. United States, 111

U.S.App.D.C. 118, 294 F.2d 742 (1961), we directed the

? . l4a

Commission to determine in a new proceeding where and ©

to whom Channel 2-should be assigned. We there gave

the Commission the yight in its discretion to maintain

existing services. The Commission in its diseretion per-—

- mitted Channel 2 to be used on a temporary basis in St.

Louis pending final decision. Its latest conclusions as to

the final assignment of Channel 2 appear to be predicated

to some extent on the fact that- Channel 2 was already

being used in St. Louis, and that a change would. deprive

a large area and population of a needed competitiv e serv-

ice. We are troubled by this line of reasoning. -Tempo-

rary authorizations for- station operation granted by the

(Commission should not be made the basis of preferring

the holder. of the authorization over other competing ap-

plicants for a permanent license. Similarly, where cities’ .

are competing for channel allocations, @ temporary alloca. |

tion to one city rather than another should not operate to

create vested rights.. But each situation of this sort must °

be judged on its own merits, and we are satisfied that the

Commission’s conclusions here are adequately buttressed

by the other grounds on which it relied. Under the cir-

“eumsiances, we do not believe we would be: justified in set-

ting aside the Commission’s action because it relied in

part on the line of reasoning here under discussion.

IV.

In No. 17.279, Fort Harrison Telecasting Company ap-

_peals from the Commission’s action in “announcing that it

would not accept new applications’ for use of Channel 2 at

-Terre Haute. This announcement was. made in the Com- -

mission’s Report and Order of July 20, 1962, here under

review. —'

In 1957, Wabash Valley Broadcasting Corporation, now

holding a license and operating on VHF Channel 10 in

Terre Haute, applied to shift its operations from Chan- -

‘nel 10 to Channel 2, the allocation of which to Terre

Haute has now been affirmed bymus in No. 17,380. . Illiana

lda

Telecasting Corporation likewise applied in 1957 for a li-

cense to operate on Channel 2 at Terre Haute. The Com-

mission concluded a comparative hearing on the two dp-

plications in December“1959. It heard argument on the |

two applications en banc in 1960, but has not yet acted in

the matter.’® oa |

Fort, Harrison Telecasting Corporation was organized

in 1960. Describing ftself as a prospective applicant for

Channel 2 at Terre Haute, it appeared before the Com-

mission in the rule-making proceeding: to support the allo-

cation of that channel to Terre Haute. “It stated that it

assumed that if Channel 2 were allocated to Terre Haute

the Commission would: accept new applications for the

channel, and requested the Commission to grant a tempo-

rary authorization for use of the channel pending comple-

tion of the comparative hearing."* The Commission deter- —

mined that it would not open up Channel 2 at Terre Hau‘e

to new application’, stating:

‘“We believe it only fair and just, and in the public in-

terest, to bring the long-standing comparative pro-

ceeding for Channel 2 at Terre Haute to a close by

disposing of the two applications under considera-

tion therein on their merits as soon as possible after

the effective ‘ate of the Terre Haute Channel 2 as-

- signment. “A long-awaited and needed second local

outlet may thereby be established at Terre Haute

without any further undue delay. All interested par-

ties had an opportunity to apply for Channel 2 at

- Terre Haute in 1957. Three applicants applied. Their

applications were designated for ‘consolidated. hear-

ing on December 5, 1957. On April 29, 1958, one ap-

plication was dismissed without prejudice. A com-

parative hearing, on the other two applications was.

concluded in December of 1959, and the matter is now

18'The Examiner filed an initial decision in favor of Wabash

Valley. ,

14 Apparently it did not urge that this special authorization be’ -

made solely to Fort Harrison. —

l6a

before the’ Commission for final action. In ight

thereof, new applications will ‘not be _—— for

Channel 2 at Terre Haute at this time.’’ ,

‘Though we recognize the force of the reasons advanced by

the Commission, we think its ruling was erroneous, in the

light of our decision in Sangamon Valley Television Corp. -

“v. Umited States, 111 U.S.App.D.C. 113, 294 F.2d 742

(1961).: In that case, we directed thé Commission to con- .

. duct an entirely new proceeding—the Commission’s 1957

order having been vacated on May 8, 1959—-saying ‘‘it

would not be appropriate for the Commission to deter-

mine in 1961 on the basis of a somewhat supptemented

1957 record where and to whom VHF Channel 2 ought to

be assigned.’’ (Emphasis added.) In the new rule-mak-

ing proceeding now before us for review the Commission’ |

determined the ‘‘where’’ for assignment of Channel 2—

Terre Haute and St. Louis. ‘It remains for it to conduct '

the new adjudicatory proceeding, which we directed, to

_ determine thé- licensee of that channel in: Terre Haute.

Certainly that determination cannot be made on the basis

of applications made in 1957 and hearings held in 1959,

long before 1961, when we directed an entirely new pro-

ceeding. We reiterate that under our 1961 order the li-

censee of Channel 2 in Terre Haute is to be Getermined

on the basis of the comparative qualifications of appli-

cants as of the present time, rather than on a record made

in 1959 concerning the qualifications of the then applicants.

In No. 17,279 we remand the case to the Commission

with directions to permit the filing of applications" for a

5 The Commission argues that since Fort Harrison did not file

a timely application for the channel with the Commission, it‘ is

now barred from applying, citing Fort Harrison Teleéasting Corp.

v. Federal Communications Commission, 111 U.S. App. D.C. 368,

297 F. 3d 779 (1961). Whatever the force of this contention in

ordinary circumstances, we think that our decision in the 1961,

Sangamon case, 111 U.S S. App. D.C. 313, 294 F. 2d 742, forecloses

it here.

17a.

license to’ use Cannel 2 in Terre Haute within a rea-

’ States and communities fso] as to provide a fair,\ efficient,

sonable time limit to be set by the Commission in its dis-

cretion, ‘and to hold a comparative hearing to determine

‘which applicant shall reecive the license. The’ Commis-

sion may in its discretion allow a temporary or interim -

use of the channel pending final determination, or adopt

some other means of providing prompt service to Terre

Haute, if in its judgment the public interest will be served

by so doing.

The action of the Commission in Nos. 17,356 and 17,380 —

is affirmed. We remand as to No. 17,279 for action not

inconsjstent with this opinion. .

So ordered.

Wricut, Circuit Judge, dissenting: The case, in all its

ramifications, denionstrates the bankruptcy of the F.C.C.’s

progeam for assigning VHF and UHF television chan-

nels pursuant to Section 307(b)' of the Communications

Act of 1934. If also shows what an administrative mess

can result when improper infiuence is brought to bear on.

the individual members ‘of the Commission in connection

with making these assignments.’

Section 307(b) requires that the Commission grant tele-

vision channels, both UHF and VHF, ‘‘among the several

and equitable distribution of [television] service \to each

of: the same.’? 47 U.S.C. §307(b). This language of § -

307(b) means what it says. F.C.C. y. Allentown Broad-

casting “9., 349 US. 358 (1955).

149 Stat. 1475, 47 U.S.C. § 307(b).

2 For other F.C.C. messes, see WORZ, Inc. v. F.C.C., 106 US.

App. D.C. 14, 268 F. 2d 889 ( 1959)’, leave to file petition for. writ

of mandamus denied, 361 U.S. 805 (1959); Massachusetts Bay

<Felecasters v. FC .C., 104 U.S. App. D.C. 226, 961 F. 2d 55 (1958),

- cert. denied, sub nom. WHDH, Inc. V. Federal Communications

Commission, 366 US. 918 (1961); WKAT v. Federal (ommunica-

tions Commission, 103 U.S. App. D.C. 324, 258 F. 2d 418 (1958).

eo

*

.

18a -

In its Sixth Report and Order on Television Alloca-

tions, 1 Pike & Fischer R.R. 91:601 (1952), the Commis-

sion attempted to.comply with this .congressional man-

date by adopting a table for distribution of VHF and

UHF frequeneies on an intermixture* basis, recognizing

that it should disperse both VHF and UHF channels

widely among states and communities and that, while more

‘VHF .channels should be assigned to the metropolitan

centers, ‘‘{a]t the same time-—and this is a basic element:

in the Commission's assignment plan—the Commission

did not believe that large cities should receive an indue

share of the- relatively searee VHF channels.’’ Id. at 91:

621. In the table of distribution which accompanied this

Sixth Report and Order, Channel 2 was assigned to |

. Springfield, Iflinois. In the present rule-making ‘proceed-

ings, the Commission has; ordered Channel 2 moved from

Springfield to St. Louis, leaving Springfield, the capital.

_city of our fourth largest state, ‘without a VHF channel |

and giving St. Louis a total of five.

The reason for the Commission’s action is difficult to

understand. Initially this _Tule-making proceeding was

, undertaken when the Commission was pursuing a deinter-

mixture* policy which it had. adopted as an interim meas-’

ure while studying the adyisability of abandoning the

VHF band altogether and assigning only UHF channels.

’ “It was while the Commission was pursuing this -policy

that this court approved the Commission’s action trans-

-ferring Channel 2 from Springfield to St. Louis, only-to

have that approval vacated by the Supreme Court be-

cause of er parte contacts with the Commissioners by

the president ef Signal Hill during tlre proceedings which

may have influenced the Commission in ordering the

8 Intermixture means assigning both VHF and UHF channels

to the same area. :

* Deintermixture involves limiting areas to either VHF or UHF ,

channels. . °

Pe 19a

change. Sangamon Valley Corp. v. U. S., 358 US. 49

(1958). ie ; or

The Commission’s repeated effort to make this change

was again voided, the second time by this court, which

required the Commission ‘to start anew and make a new ~

record. Sangamon: Valley Television Corp. v., United

States, 111 U.S.App.D.C. 113, 294 F.2d 742 (1961). It is

on this new record that the matter is now before us. The

Commission has again ordered the removal of Channel 2-

from Springfield to-St. Louis. — It has also decided to

_ award Charinel 2 to Signal Hill in that city. a

- Since the last remand, the Comission has changed its

policy. It has abandoned deintermixture and re-embraced

intermixture. It has sponsored legislation® requiring

manufacturers to include a UHF band on all television

‘receivers. In so doing, it advised the Congress that the

proposed solution to the UHF—VHF problem involving

use of only the UHF band was new rejected. The Com-

mission also made: it clear to the Congress ‘‘that it does

not view deintermixture as a general or long-range solu-

tion for the television ‘allocations problem, Quite to the

contrary, the Commission, has emphasized that an inter-,

mixed system utilizing both UHF and VHF channels is

needed to-achieve [their] long-range goal of an effeetive

national television system and that the all-channel receiver

legislation is the key to that long-range goal.’’ S.Rep. -

No. 1526, 87th Cong., 2d Sess., to accompany H.R. Rep.

No. 8031, 87th Cong., 2d Sess., reprintet] in 1 US.Code

Cong. & Adm. News, 87th Cong., 2d Sess., p. 1877 (1962).

Thus it appears that instead of deintermixture or a 70-

channel UHF-only television system, the Commission has

now decided upon an intermixture policy using an all-

«

.

5 Act of July 10, 1962, Public Law 87-529, 76 Stat. 150.

ee 20a

channel receiver as its solution to the UHF—VHF prob-

-lem.* 7

Pursuant to the new policy, a moratorium has been or-

dered on all deintermixture proceedings pending before

the Commission; with the exception of three or four, in-

eluding’ Channel 2 in Springfield. These three or four

deintermixture proceedings would continue, however, with

‘the F.C.C. giving ‘‘weight to the congressional policies

set forth in this report, and speeifically, to any loss of

service to the publie which weuld result in the abandons

ment of VHF channels allocated to the particular com-

munities involved in these cases.’’ IW. at p. 1878. This

‘same Committee Report went on to state: ‘*We empha-

size that the aim of this measure is an ‘intermixed tele-

Vision system using iin! 12 VHF and 70 UHF channe Is."

Id. at p. 1879. : ‘

. —_—

Thus it appears that if-this transfer of. Ciennel 2 from

Springtield to St. Louis is affirmed, in spite of the fact

that the aim of Congress and the Commission’s present

policy is not deintermixture aa intermixture, Spring-

® The Commission’ $ brief, at pp. 12-13, reads:

“The Commission also proposed to Congress the adoption

of so-valled all-channel receiver legislation, to give the Com- .

mission authority to require that all television receivers shipped

in interstate commerce be capable of rbveiving ULF as well as

VHF channels. rae legislation was enacted (Publie Law.

87-529, July 10, 1962). When the bill was being considered,

the Commission, in’ vousiehie to Congressional inquiry, ex-

pressed. its judgment that, during the period of time needed to’.

indicate whether the all-channel receiver wonld in fact achieve

_ the Commission's goal of a satisfactory intermired system, it

‘would be inappropriate to proceed with the eight new selective

deintermixture proceedings initiated on July 27, 1961. How-

ever, the Commission expressly excluded from the -proposed

‘moratorium’ four deintermixture proceedings which were

then pending, teluding the Springfield Channel 2 situation,

aid this’ exclusion - ‘Was accepted by Congres. "(Emphasis

supplied. )

; oe 2a

field will be one of the three or four deintermixed com-

munities in the country. It appears to me,’ therefore, that

the transfer of Channel 2 would be an obvious violation

of the congressional policy stated in’ $307(b). More-

over, the Commission's action, in additien to violating §

307(b), is arbitrary and capricious in that it diserimi-

nates against the three or four communities in the cowu-

try marked for deintermixture. ‘In reaching these con-

clusions, in view of the background of this case, the es-

pertise ‘of the Commission has not been a compelling con-

sideration.

I respectfully dissent.