# Appendix — Sangamon Valley Television Corp. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1458%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1964 - **Citation:** 376 U.S. 915 ## Text 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