Petition for Writ of Certiorari — Allentown Broadcasting Corp. v. Federal Communications Commission

FEB 23 4

HAROLD B. Wit

IN THE

Supreme Court of the United States

October Term, 1955

No. 710

ALLENTOWN BroabdcasTING Corporation, Petitioner

Vv.

FEDERAL COMMUNICATIONS COMMISSION

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT.

DonaLp C. BEELAR

World Center Building

Washington 6, D. C.

Attorney for Petitioner

February 23, 1956

Press or Byron S. ADAMS, WASHINGTON, D. C.

Page

Opinion Below ........6.seeeeeeeeeceeeeeeceeeeees 1

SAGs ys vise ses dec betes iaades thee Meenas 2

Questions Presented ............seeeeeeeeeeeeeeees 2

bos ates bivacad vets eeenwisk eneey 2

I as Cel ins dhe ad aakh taennees eeeeh ieee 4

Reasons for Granting the Writ .................... 7

RE Ss Abi ke ceded eeks haa nevsibaveres 17

CITATIONS

CASES:

Allentown Broadcasting Corpvration v. FCC, 94

U.S. App. D.C. 353, 222 F. 2d 781..........2.2.. 5, 8

Associated Press v. United States, 326 U.S.1...... 14

Christoffel vy. United States, 94 U.S. App. D.C. 168,

214 F. 2d 265, cert. denied, 348 U.S. 850 ......... 9

Clar'sburg Publishing Company vy. FCC, -- US.

App. D.C., —, 225 F. 2d 511............-4. 2, 7, 13-16

FCC vy. Allentown Broadcasting Corporation, 349

EE Esa OEE WRe CRA eae ch ever ehibeesy © s 5, 6

FCC v. WOKO, Inc., 329 U.S. 223 .......-0.eesceee 8

Mansfield Journal Company v. FCC, 86 U.S. App.

DORE es Be Ws ee eas naicd he dance dead veya nse 8, 15

McAllister v. United States, 348 U.S. 19 ........... i)

McClatchy Broadcasting Company v. FCC, — US.

App. D.C. —, — F. 2d —, 13 Pike and Fischer,

Radio Regulation 2067 (decided January 27,

ai kay dkine keke ed od Rea ese end on heerees 15

NLRB vy. American National Insurance Company,

ee I iikikn eGo aes 6aesd Cone hare ches 9

NLRB vy. Howell Chevrolet Comp my, 204 F. 2d 79

(CA 9), affirmed, 346 U.S. 482 ..............0-- 11,

me v, Pittsburgh Steamship Company, 340 U.S. .

NLRB vy. Universal Camera Corporation, 190 F. 2d

429 (CA 2)

ii Index Continued

Page

Pinellas Broadcasting Company v. FCC, — US.

App. D.C. —, — F. 2d —, 13 Pike and Fischer,

Radio Regulation 2058 (decided January 19, 1956) 16

Plains Radio Broadcasting Company v. FCC, 85

U.S. App. D.C. 48, 175 F. 9d 359 ............... 8 &

Scripps-Howard Radio v. FCC, 89 U.S. App. D.C.

13, 189 F. 2d 677, cert. denied, 342 U.S. 830...... 14

Simmons v. FCC, 83 U.S. App. D.C. 262, 169 F. 2d

670, cert. denied, 335 U.S. 846 .................. 8

Sprague v. Ticonic National Bank, 307 U.S. 161.... 9

United States vy. Great Northern Railway Company,

ASU saa Laketts MAK pewbxne’ aces beaes 9

United States v. Urbuteit, 336 U.S. 804 .......... 11

Universal Camera Corporation v. NLRB, 340 U.S.

Reh ONG Mian Ee Ce cou ok whine eek ne eee a2 7,9

Western Pacific R. Corp. v. Western Pacific R. Co.,

PRES SS ia Saree er pre ey ea a ra 12}

SraTuTes:

Administrative Procedure Act, 60 Stat. 237, 5

U.S.C. 1001 et seq.:

ea winees veel au dba we wn vues 6 ad 4,79

Communications Act of 1934, 48 Stat. 1064, as

amended, 47 U.S.C. 151 et seq.:

RS eS te ee re ere. 3, 14

Sn gee 3,14

A ee ree ee eee a era 3-4, 8

I a i i ao eee nda Rees 4,7

MISCELLANEOUS:

Amendment of Multiple Ownership Rules, 9 Pike

and Fischer, Radio Regulation 1563, 1568 ........ 14

IN THE

‘> Supreme Court of the Gnited States

October Term, 195é

mraed

No.

.e= ALLENTOWN BroapcastTING Corporation, Petitioner

v.

FEDERAL COMMUNICATIONS COMMISSION

os

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT.

Petitioner, Allentown Broadcasting Corporation, re-

spectfully prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals

for the District of Columbia Circuit entered in this case

on December 16, 1955.

OPINION BELOW

The opinion of the Court of Appeals, printed at page

la of the Appendix hereto, has not yet been reported.

2

JURISDICTION

The judgment of the Court of Appeals was entered on

December 16, 1955 (App. 6a). Petitioner’s request

for rehearing en banc was denied January 23, 1956

(App. 7a). The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1) and 47 U.S.C. 402(j).

QUESTIONS PRESENTED

1. Whether the majority of the Court below failed to

comply with the mandate from this Court by perfune-

torily reinstating the decision of the Federal Communi-

cations Commission in this case without a determina-

tion that it is supported by substantial evidence on the

record as a whole, and thereby deprived Petitioner of

a review of relevant questions of law necessary to

decision.

2. Whether the judgment of the majority below af-

firming the decision of the Federal Communications

Commission is contrary to the recent decision by an-

other division of the same Court in Clarksburg Pub-

lishing Company v. FCC, — U.S. App. D.C. —, 225

F. 2d 511, holding that where, as in this case, an appli-

cant for a broadcast franchise has existing interests in

newspaper and other communications media in the

same area, the Commission’s award must be supported

by reasoned findings based on evidence that the new

service will further the public interest, convenience, and

necessity despite the increased concentration of con-

trol of mass media which it will bring about.

STATUTES INVOLVED

Pertinent portions of the Communications Act of

1934, 48 Stat. 1084, 1085, 1093, as amended, 47 U.S.C.

308(b), 309(a), 309(b), and 402(g) provide as follows:

3

**§ 308... (b) All applications for station li-

censes .. . Shall] set forth such facts as the Commis-

sion by regulation may prescribe as to the citizen-

ship, character, and financial, technical, and other

qualifications of the applicant to operate the sta-

tion; the ownership and location of the proposed

station and of the stations, if any, with which it

is proposed to communicate; the frequencies and

the power desired to be used; the hours of the day

or other periods of time during which it is pro-

posed to operate the station; the purposes fcr

which the station is to be used; and such other in-

formation as it may require... .”’

** § 309 (a) If upon examination of any appli-

cation provided for in Section 308 the Commission

shall find that public interest, convenience, and ne-

cessity would be served by the granting thereof, it

shall grant such application.

‘“*(b) If upon examination of any such applica-

tion the Commission is unable to make the finding

specified in subsection (a), it shall forthwith notify

the applicant and other known parties in interest

of the grounds and reasons for its inability to make

such finding. Such notice, which shall precede

formal designation for a hearing, shall advise the

applicant.and all other known parties in interest

of all objections made to the application as well as

the source and nature of such objections. Follow-

ing such notice, the applicant shall be given an op-

portunity to reply. If the Commission, after con-

sidering such reply, shall be unable to make the

finding specified in subsection (a), it shall formally

designate the application for hearing on the

grounds or reasons then obtaining and shall notify

the applicant and all other known parties in inter-

est of such action and the grounds and reasons

therefor, specifying with particularity the matters

and things in issue but not including issues or re-

quirements phrased generally. . . . Any hearing

subsequently held upon such application shall be a

4

full hearing in which the applicant and all other

parties in interest shall be permitted to partici-

pate but in which both the burden of proceeding

with the introduction of evidence upon any isste

specified by the Commission, as well as the burden

of proof upon all such issues, shall be upon the

applicant.”’

**$ 402... (g) At the earliest convenient time

the court shall hear and determine the appeal upon

the record before it in the manner prescribed by

Section 10(e) of the Administrative Procedure

Act.’’ *

STATEMENT

This petition seeks review of the per curiam decision

and order entered by the Court below on December 16,

1955, on remand from this Court, which affirmed a final

decision of the Federal Communications Commission

awarding a construction permit for a new standard

broadcast station at Easton, Pennsylvania to Easton

Publishing Company and denying the mutually exelv-

* Section 10(e) of the Administrative Procedure Act, 60 Stat.

243, 5 U.S.C. 1009(e), provides in pertinent part as follows:

*‘Seope of Review.—So far as necessary to decision and

where presented the reviewing court shall decide all relevant

questions of law, interpret constitutional and statutory pro

visions, and determine the meaning or applicability of the

terms of any agency action. It shall . . . hold unlawful and

set aside agency action, findings, and conclusions found to lk

(1) arbitrary, capricious, an abuse of discretion, or other.

wise not in accordance with law; ... (5) unsupported by sub

stantial evidence in any case subject to the requirements of

§§ 7 and 8 or otherwise reviewed on the record of an agency

hearing provided by statute; or (6) unwarranted by the facts

to the extent that the facts are subject to trial de novo by the

reviewing court. In making the foregoing determinations the

court shall review the whole record or such portions thereof

as may be cited by any party, and due ecount shall be taken

of the rule of prejudicial error.’’

-

a)

sive application of Petitioner for a new station on the

same frequency at Allentown, Pennsylvania. The

factual background of this lengthy proceeding is set

forth in the opinion of this Court, decided June 6, 1955,

reversing an earlier decision of the Court below* and

remanding the case for a reconsideration of the record.

FCC vy. Allentown Broadcasting Corporation, 349 U.S.

358, 359-60.

In its previous review of this proceeding, this Court

found two errors of law requiring reversal of the opin-

ion of the Court below; and, of course, neither of these

prior holdings by this Court is open to challenge here.

First, this Court agreed with the Commission that it is

not obligated, before invoking Section 307(b) of the

Communications Act to favor an applicant proposing

to bring a second local broadcast service to its com-

munity, to find the parties before it substantially equai

in relative abilities to serve their respective communi-

ties. Second, this Court held that Judge Learned

Hand’s language construing this Court’s decision in the

Universal Camera case on remand,** quoted with ap-

proval by the Court below, went ‘‘too far’’. Having

corrected these two errors of law, this Court remanded

the case to the Court below, observing that ‘‘it is not

> our function to reinstate the determination of the Com-

mission. That would make this Court the reviewing

body of the ultimate determination of the Commis-

sion.”’ 349 U.S. at 365.

On remand, the Court of Appeals, Prettyman and

Miller, JJ., affirmed the Commission’s decision per

* Allentown Broadcasting Corporation v. FCC, 94 U.S. App. D.C.

353, 222 F. 2d 781, reversed, 349 U.S. 358.

** NLRB vy. Universal Camera Corporation, 190 F. 2d 429, 430

(CA 2).

6

curiam, Without further discussion of the issues on ap-

peal or citation of authority, but with a terse finding

of ‘‘no substantial error on the part of the Commis-

sion in the features of the case remaining open to our

consideration’. It is apparent from the decision on

remand that the majority interpreted this Court’s

opinion so as to leave the Court below little room for

further review of the Commission’s decision.* Judge

Bazelon disagreed, stating that he did ‘‘not read the

Supreme Court’s opinion to leave us with only the min-

isterial duty of reinstating the Commission’s decision’’,

In a carefully reasoned dissent, he pointed out that the

Commission’s decision contains nothing to show that it

gave consideration to whether the public interest would

be served by augmenting Easton’s ‘‘near monopoly of

communications media”’ despite the fact that this issue

was ‘‘squarely presented’’ by Petitioner, and despite

both the Commission’s own policies and previous court

decisions establishing the public good to be served by

avoiding ‘‘concentration of control of the valuable elee-

tronic public domain’’. Judge Bazelon contended that

the Commission’s decision should be remanded for ade-

quate findings on the evidence rel.ting to Easton’s own-

ership of other mass communications media.

On December 30, 1955, Petitioner filed a petition for

rehearing en banc requesting the full Court to review

the decision on remand because of the alleged failure

of the majority to comply with the mandate of this

Court and the inconsistency of the decision with the re-

*This Court had observed that ‘‘[t]here was substantial evi-

dence considering the whole record that had to be weighed, pro

and con, as to types of programs, evasiveness of witnesses, and the

desirability of allocating an additional license to an applicant who

already controlled other means of communications’, 349 U.S.

at 363-4.

7

cent opinion of another panel of the Court in Clarks-

burg Publishing Company v. FCC, — U.S. App. D.C.

—, 225 F. 2d 511. On January 23, 1956, this petition

was denied, five to three, by the full Court in chambers,

Chief Judge Edgerton and Circuit Judges Bazelon and

Washington voting to grant the petition.

REASONS FOR GRANTING THE WRIT

1. The first question presented by this writ is whether

the majority of the Court below failed to comply with

the mandate from this Court directing it to reconsider

the record in this case and the ‘‘ultimate determina-

tion’’ reached by the Commission. Such a review of

the ‘‘ultimate determination’’ of the agency requires,

under familiar principles, a judgment as to whether

the decision is supported by adequate findings based on

substantial evidence in the record as a whole, includ-

ing the report of the Trial Examiner. Universal Cam-

era Corporation v. NLRB, 340 U.S. 474. On remand

from this Court, Petitioner was entitled to such a de-

termination before the decision of the Commission

could be reinstated. If no such determination was

made, Petitioner has been denied the statutory right

of review of ‘‘all relevant questions of law’’ presented

to the reviewing Court and necessary to decision pro-

vided for in Section 10 of the Administrative Pro-

cedure Act, 5 U.S.C. 1009(e).*

It is obvious that the original decision of the Court

below which was reversed by this Court cannot consti-

tute a finding that the Commission’s decision is sup-

* By recent amendment, Congress made the review provisions of

Section 10 of the Administrative Procedure Act specifically ap-

plicable to appeals from orders of the Federal Communications

Commission. Act of July 16, 1952, 66 Stat. 718, 47 U.S.C. 402(g).

se aa nN

a Sait aes

ali EAs inc im Soe Gao eel alate SERS cs Lie bb F Bag Be oP ak ee RR ae

AAEM A BEA

Maal -etees ee oh ' _ POP

Soils CAR at oe OS Ae

&. hg F diy. See

8

ported by substantial evidence. For, even though view- ©

ing the case under a mistaken apprehension of con- ©

trolling law, the Court below found the Commission’s —

decision unsupported by substantial evidence in at least

three areas—uncertainty as to program plans, lack of

forthrightness of the Easton applicant, and monopoly Z

and concentration of communications media. 94 U.S, ©

App. D.C, 353, 356, 222 F. 2d 781, 784. This Court’s |

subsequent holding that the Commission was not re- —

quired to make comparative findings on the relative

abilities of the applicants did not automatically over-

turn the conclusion below that the Commission’s deci- ~

sion is deficient in these respects. Even in uncontested ©

applications, the burden of proof on all matters in issue

is placed by Section 309 of the Communications Act

upon the applicant. Indeed, the Commission in the

past has denied applications, on a non-comparative

basis. where the applicant has failed to set forth an

acceptable program proposal,* or where he has engaged

in misrepresentation to the Commission** or in mo-

nopolistic practices.***

Just as clearly, this Court’s opinion reversing the

Court below does not supply the necessary holding that |

the Commission’s decision in this case finds support in

the record as a whole. This Court has repeatedly re-

fused ‘‘to review an administrative record in the first

instance after a finding that a lower court has applied

* E.g., Simmons v. FCC, 83 U.S. App. D.C. 262, 169 F. 24 670,

cert. denied, 335 U.S. 846. Compare Plains Radio Broadcasting

Company v FCC, 85 U.S. App. D.C. 48, 175 F. 2d 359.

** E.g., FCC v. WOKO, Inc., 329 U.S. 223.

*** F.9g., Mansfield Journal Company v. FCC, 86 U.S. App. D.C.

102, 180 F. 2d 28.

Ts

9

an incorrect principle of law’’;* and (as the dissent

below points out) if it had departed from its usual

practice in this case there would have been no occasion

for remand to the Court below for a review of the Com-

mission’s ‘‘ultimate determination’. In NLRB v.

Pittsburgh S.S. Company, 340 U.S. 498, this Court con-

ferred a broad power, and a correlative duty, on cir-

cuit courts vested with exclusive jurisdiction to review

the actions of administrative tribunals in accordance

with the standards required by the Administrative Pro-

cedure Act and Universal Camera case, and emphasized

that this Court ‘‘is not the place to review a conflict

of evidence nor to reverse a Court of Appeals because

were we in its place we would be finding the record

tilting one way rather than the other...’’ 340 U.S.

at 503. The Court below could not reasonably have

assumed that this Court’s opinion constituted a holding

that the Commission’s ultimate decision in this ease to

prefer Easton to Petitioner was correct in view of the

record as a whole.

On remand, it became the duty of the Court below

to pass on all issues not encompassed within this

Court’s mandate. Sprague v. Ticonic National Bank,

307 U.S. 161. And while the Court below could un-

doubtedly have reversed on remand its earlier holdings

that the Commisson’s decision could not be supported

in at least three respects, see Christoffel v. United

States, 94 U.S. App. D.C. 168, 214 F. 2d 265, cert.

denied, 348 U.S. 850, nothing in the per curiam

decision below indicates that it did so. The decision

below, brief as it is, contains no hint that the majority

* United Statcs v. Great Northern Railway Company, 343 U.S.

562, 578; accord, NLRB v. American National Insurance Company,

343 U.S. 395. Compare McAllister v. United States, 348 U.S. 19,

23 (dissenting opinion of Mr. Justice Frankfurter).

RN RE A PRL Le Be TT NON pRB EAR RET NER EIN 8 Re ee to ae

10

of the Court addressed itself to a full consideration of

the evidence in the record and the Commission’s find.

ings in the light of the two errors of law found by this

Court in its earlier opinion. Although this Court

specifically directed a ‘‘reconsideration of the record”,

the per curiam opinion below merely recites that the

case was remanded for ‘‘proceedings not inconsistent”

w'th the opinion of this Court, and that the majority

could find no substantial error in those aspects of the

case “‘remaining open for consideration’. This re-

strictive interpretation of the mandate of this Court,

indicating a conviction by the majority below that its

duties on remand were narrowly circumscribed to min-

isterial reinstatement of the Commission’s decision, ig-

nores both errors of law in the Commission’s decision

which had previously been noted below and were not

disturbed by this Court, and remaining questions left

open for decision by the mandate.

The majority below also failed to comply with the

mandate in this case since it ignored, or reversed sub

silentio, the earlier holding, left undisturbed by this

Court on review, that the Commission committed legal

error in assuming that its power independently to re-

view trial examiners’ credibility findings is broader

where these involve conflicts within the testimony of

a single witness rather than contradictory statements

by different witnesses.* The per curiam opinion on

* The Commission justified its independent evaluation and rejec-

tion of the Examiner’s credibility findings in this case largely

‘‘because of the .. . fact that the Examiner’s findings were pri-

marily based on her evaluation of testimony by one witness

rather than on her judgment as to the credibility of different

witnesses who made contradictory statemerts.’’ (R. 205).

The Court below held this analysis to be legally erroneous, as

follows :

11

remand ignores this earlier finding of legal error in

the Commission’s decision, which clearly remained

after the opinion of this Court. If this is so because

of a conclusion by the majority on remand that the

error was not prejudicial, Petitioner was entitled to

such a finding. United States v. Urbuteit, 336 U.S.

804. If, on the other hand, the Court below (without

saying so) reversed its earlier determination of legal

error by the Commission on this point, then its decision

is squarely in conflict with decisions of other circuits,

one of which characterizes the test applied by the Com-

mission as ‘‘an ancient fallacy’. NZRB v. Howell

Chevrolet Company, 204 F.. 2d 79, 86 (CA 9), affirmed,

346 U.S. 482. In either case, the decision of the Court

below should be reversed and remanded for further

consideration of these important questions.

2. Apart from its failure to comply with the

mandate of this Court, the judgment of the majority

below affirming without further findings the decision

of the Commission raises a question vital to the ad-

ministration of the Communications Act which has not

heretofore been decided by this Court. Its resolution

at this time is all the more urgent because of the

significant division among different panels of the

Court below as to the duty of the Commission when

granting broadcast licenses to applicants who come

‘‘we cannot agree that the Examiner’s findings are entitled to

any less weight than findings which resolve a conflict between

witnesses. Both involve a determination based upon an evalua-

tion of the witnesses’ demeanor, bearing and delivery; and it

has been specifically held that the undocumented testimony of

a single witness may be rejectec on the basis of such factors,

and that this is a judgment best made by the trier of fact who

‘had the witnesses before it... ’’ (R. 319).

This Court’s opinion left this holding undisturbed.

PE SAE wm thnk PIE LE SH fs

12

before it freighted with existing interests in other

media of mass communications. This division jis

apparent not only from the dissent by one of the three

judges on remand, but from the five to three division

of the full Court below on Petitioner’s request for re-

hearing en banc. Since the Court of Appeals for the

District of Columbia Circuit has exclusive jurisdiction

to hear appeals taken under Section 402(b) of the

Communications Act, disagreement as to the Commis.

sion’s function among different panels of this Court

assumes an importance similar to conflicts among

different circuits over the administration of other

important federal statutes, and jeopardizes the uni-

form administration of the Act. Intra-cireuit divi-

sions of the Court below on matters relating to the

Communications Act are thus particularly appropriate

subjects for the exercise of that Court’s discretionary

power to grant rehearings en banc. See Western Pa

cific R. Corp. v. Western Pacific R. Co., 345 U.S. 247,

270 (concurring opinion of Mr. Justice Frankfurter),

The problem inherent in the disposition of this case

by the Court below may be stated as follows: when an

applicant with existing communications interests is be-

fore the Commission and no comparison of his relative

merits with those of another applicant is necessary, is

the Commission’s duty at an end when it finds that he

possesses the basic legal, technical, and financial quali-

fications required of all broadcast licensees, without a

further appraisal of those aspects of his application,

such as his interests in other communications media,

which, although not in themselves disqualifying, may

in certain circumstances outweigh the public good to be

gained from the new broadcast service proposed? The

recent opinion of one division of the Court below in

13

Clarksburg Publishing Company v. FCC, — U.S. App.

D.C. —, 225 F. 2d 511 (which this Court was not asked

to review) answers this question in the negative. The

summary affirmance of the Commission’s decision in

this case by another division of the Court below after

the holding of this Court that the Commission was not

obliged to make a comparison of the respective abili-

ties of Petitioner and Easton Publishing Company,

answers it in the affirmative. This is so because, in af-

firming per curiam the Commission’s decision, the

Court below has necessarily condoned its conclusions

that the near monopoly in communications interests

possessed by the Easton applicant, and urged by Peti-

tioner as an independent ground for denial of the

Easton application, is not of significance in this case

absent the necessity of a comparative evaluation by the

Commission of Petitioner and Easton, and in view of

the fact that newspaper ownership as such is not a

statutory disqualification.

In Clarksburg the Court below, in a unanimous deci-

sion by Circuit Judges Edgerton, Bazelon and Bastian,

held that where application is made for a new broad-

cast station by a party with extensive newspaper and

other broadcast interests in the same area as that for

which the new franchise is sought, and it is urged that

a grant of the application would abet an existing

monopoly in mass communications contrary to the

public interest, the Commission cannot grant the ap-

plication merely by a determination that the appli-

cant meets the legal, technical, and financial specifica-

tions of the Act, but must instead consider at a full

hearing the effect of the concentration of control al-

leged, and render a reasoned decision that the grant

will nevertheless serve the publie interest. The ra-

14

tionale of the decision is plain and readily understand.

able. It goes on the assumption that the Commission

is not merely a licensing agency required to issue fran.

chises to all who come before it possessed of the mini-

mum qualifications, such as citizenship, required by

Section 308(b) of the Act to be set forth in every ap-

plication ; but rather that the Commission must make a

further finding, after these minimum requirements

have been demonstrated by the applicant, that a grant

of the application will serve the public interest, con.

venience, and necessity. Highly relevant to the latter

finding, required by Section 309 of the Act, is the effect

which an additional outlet of mass communication will

have in a given area where it is granted to an appili-

cant who already controls a number of such outlets,

The ownership of other media, when challenged, places

an additional burden on the applicant, under Section

309(b), to demonstrate that the authorization he seeks

will further the public interest. In this case both the

Commission and the majority of the Court below on

remand failed to recognize this higher standard.

This Court has recognized in another connection

that the public weal is served by ‘‘the widest possible

dissemination of information from diverse and antag-

onistie sources’’,* and the Commission has said that

an underlying purpose of the Communications Act

‘was the desire to effectuate the policy against the

monopolization of broadcast facilities . . . .?**

* Associated Press v. United States, 326 U.S. 1, 20.

** Amendment of Multiple Ownership Rules, 9 Pike and Fischer,

Radio Regulation 1563, 1568. The Court below has repeatedly en-

dorsed the principle of diversification of ownership interests in mass

media of communications as applied by the Commission. See, e.g.,

Scripps-Howard Radio v. FCC, 89 U.S. App. D.C. 13, 189 F. 24

15

The Clarksburg decision, handed down by a division

of the Court below different from the majority on

remand of this case, represents a recent delineation of

the Commission’s function in enforcing diversification

of broadcast media as ‘‘an important component of the

public interest”. In Clarksburg, as in this case, he

Commission had attempted to justify its grant o. a

new station to a party already in control of nu™.erous

mass media in the area by arguing that the applicant

was not disqualified in an absolute sense under the

statute by reason of its newspaper interests. The

Court explicitly struck down such a justification for

the Commission’s award. 225 F. 2d at 519n. But, as

pointed out in the dissent below, the Commission’s

decision here rests on just such a determination.* The

Commission in this case treated the ownership of news-

paper and other broadcast interests in Easton by the

Easton applicant as relevant only to the extent that

the record might demonstrate past unlawful monopo-

listie conduct in the operation of these media. Such

conduct, if shown, would of course be highly relevant

and in the absence of countervailing circumstances

would constitute a bar to a grant of the application.

Mansfield Journal Company v. FCC, 86 U.S. App.

D.C. 102, 180 F. 2d 28. But the Commission’s duty

did not end with its finding that the record did not

support a conclusion that Easton had engaged in

677, cert. denied, 342 U.S. 830; McClatchy Broadcasting Company

v. Fcc, — US. App. D.C. —, — F. 2d —, 13 Pike and

Fischer, Radio Regulation 2067 (decided January 27, 1956).

* On the ‘‘diversification’’ issue, the Commission said ‘‘News-

paper control . . . does not automatically disqualify an applicant

... [W]e are convinced that the Easton Publishing Company is

not disqualified solely because of its newspaper ownership and

activities ...’’ (R. 207).

16

monopolistic practices. Rather, under the rule of the

Clarksburg case and consistent with the diversification

policy of the statute, the Commission had an obliga.

tion to weigh, not only the past practices but also the

‘‘notential evil’? of the increased concentration of

communications interests which its decision would

bring about. The dissent in the judgment below makes

it clear that the Commission did not do this. The

majority’s reinstatement of its decision can only mean

that in the opinion of the majority it was not required

to do this.

The conflict of opinion in the Court below which is

squarely presented by a comparison of Clarksburg

and the per curiam decision and order in this case igs

of far-reaching significance in the administration of

the Act, and of critical importance to persons contem-

plating the substantial investments in time, effort, and

money which are frequently involved in obtaining a

broadcast permit.*

* The second problem raised by this certiorari was most recently

illustrated in Pinellas Broadcasting Company v. FCC, — US.

App. D.C. —, — F. 2d —, 13 Pike and Fischer, Radio Reg-

ulation 2058 (decided January 19, 1956). In that case, Judges

Prettyman and Washington upheld an award of a construction per-

mit for a new television station to the publisher of one of two daily

newspapers and the licensee of one of two radio stations in Tampa,

Florida. Judge Bazelon dissented, in language similar to his dis-

sent in this ease below, arguing that the case should be remanded

for the required finding, under Clarksburg, of the effect which the

grant would have upon the concentration of control and diversifica-

tion of mass media of communications in the Tampa area.

17

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that this petition for certiorari should be

granted.

Respectfully submitted,

Dona.p C. BEeLar

World Center Building

Washington 6, D. C.

Attorney for Petitioner

February 23, 1956