*1 TELECASTERS, INC., BROWN Aрpellant, COM- COMMUNICATIONS
FEDERAL Appellee, MISSION, Inc., Broadcasters, Intervenor.
No. 15644. Appeals Court of
United States Circuit. District of Columbia 6, 1960.
Argued Oct. 16, 1961.
Decided Feb. Rehearing Denied Banc En
Petition for June 1961. Rehearing Before the
Petition for Denied June Division Washing- Henry Weaver, Jr., Mr. B. Quinn
ton, C., Messrs. D. with whom Gilliam, Jr., O’Connell Armistead W. Washington, brief, C.,D. were on the appellant. Smith, Counsel, Philip Mr. Federal J. Commission, whom Communications FitzGerald, Messrs. John General L. Counsel, Federal Communications mission, Paglin, Max D. Assistant Gen- Counsel, eral Federal Cоmmunications Commission, Rosenbloom and Joel Mrs. Counsel, Reel, Ruth V. Federal Com- Commission, munications brief, were appellee. Stevens, Washington, David S. C., Supreme D. bar of the Court Danaher, Judge, Circuit dissented. pro Hampshire, vice, by of New hac special court, leave of with whom Messrs. Jr., McKenna, James A. and Vernon L. Wilkinson, Washington, C.,D. were on brief, for intervenor. Washington Before Edgerton, Judges. Danaher, Judge. WASHINGTON, Circuit appeal from arises This case Communications Federal order awarding per- a construction VHF television sta- a commercial mit for Beaumont, Texas, in on Channel tion Inc., mutually applica- denying the exclusive Telecasters, Inc., appellant tion оf here.
869
it,
fication,
upon
argued
us relates
indicated its reliance
main issue
designat-
application
and stated that an
ing
success-
the
the studio
location of
the
city
3.613(a)1
a new
of the
site within
applicant.
ful
Section
favorably
Subsequently, such
treated.2
Communications
Federal
Rules of the
granted.
application
part,
main an
“The
was made
provides, in
meantime, appellant
In the
had taken
station
television broadcast
studio of a
appeal.
principal
this
com-
shall be located
(b)
munity
Subsection
to be served.”
Appellant’s principal
is
contention here
requirement
permits
this
“good
finding
that the Commission’s
that
orig-
“good
showing
In its
cause.”
waiving
сause”
pliance
com-
existed to warrant
application, Television
inal
rule” on Tele-
with the “studio
proposed a
applicant,
the successful
original application
vison Broadcasters’
city
limits
not
site
within
studio
Beaumont,
unsupported and,
fact,
is
contradicted
city
principal
served.
sought,
record. A remand
di-
“good cause
found that
recting
findings
the Commission make
Rule,
and that
for waiver of
exists
respect
allegations
to the
set forth
disqualification, is entitled
of threshold
appellant’s petition
for reconsidera-
comparative consideration”. After
.
tion.
weighing
it, the Com-
the evidencebefore
awarding
mission entered
order
possibility
While there
exists
urging
Broadcasters, despite
granting
that the
Commission erred
permit to Television Broadcasters.
issue,
appears to
the waiver here at
Appellant
thereupon petitioned the
appellant
us that
suffered such
Commission for
and re- prejudice
reconsideration
relief.
as would entitle it to
hearing. By
apрellant
10(e)
attached exhibits
Pro
Section
the Administrative
sought
Act,
1009(e),
to establish that the
site
cedure
quires
5 U.S.C.A.
re
§
proposed by
reviewing
Television Broadcasters was
“due ac
to take
* * *
and that
prejudicial
available to it
Television count
rule of
guilty misrep-
pro
had been
Broadcasters
resenting
error.”3 Brown’s conduct
negаtes
ceedings
present
to the Commission that
claim
below
its
available, knowing
early
1,
prejudice.
in fact
site
November
As
An
petitioned
was not.
affidavit
to the 1957,
attached
Television Broadcasters
opposition
appellant’s petition
spec
application
admit-
leave
amend its
originally proposed
ify
ted that the
a different
site within the
destroyed,
longer
city
Although
and was no
owned
of Beaumont.
Tele
limits
by Television
expressly
Broadcasters.
It added vision
disclaimed
that it
any
preference
Television Broadcasters’
intent to seek
on the
repurchase
intention at that
change,
opposed
time
basis
petition.
site,
high
being
price
old
in view the
proposed
At the
on
Instead,
asked
the new
amendment,
1957,
owner.
on December
coun
stated,
reply
Television Broadcasters
for Television
sel
Broadcasters stated
apply
change
for a modification of
prin
its con-
“was occasioned
specify
struction
cipally
new site
fact
that a crеditor of
city
within the
began
limits of Beaumont. The
proceed
Television Broadcasters
Commission,
opinion reaffirming ings
in its
to have the site which Television
grant,
proposed
alluded to the
modi-
owned outside of
[Beau-
quote
Attorney
47
C.F.R.
3.613
3. To
General’s Manual
Administrative
on the
Procedure Act
2. The Commission added “In the event
“*
* *
p.
(1947), at
110:
errors
devеlopments
prove
future
should
bearing
which have no substantial
unwarranted,
would,
rights
parties
ultimate
will
course,
re-evaluate the modified TB
disregarded.
Ry.
Market Street
proposal.”
[Television Broadcasters]
Comm’n,
324 U.S.
561—
[Railroad]
(1945).”
1171]
89 L.Ed.
S.Ct.
[65
* * *
and sold
satis-
overcome
over-all merit of
seized
mont]
* *
application.”
supplied.)
it so
(Emphasis
And
factiоn of a debt.
injury present
happened that,
public
about
Nor do
find
about October
finally here, especially
fact that
month
the amendment
in view of
before
*3
filed,
space
in
available
secured
some
became
Broadcasters has
building
by
Reed,
approval
it was
of a new studio
owned
building
city limits,
site was
to that
which the studio
within
а waiver
for which
changed.”
unnecessary.
request
of
The
to move
the “studio rule” is
by
ultimately
may
properly
the ex- This
studio
denied
remand
not
public
case to the
no
aminer.
Commission when
thereby.
can be served
“The Com
end
pre-
Subsequently,
in
course
munications
of 1934 did
create
Act
hearing
3,
March
held on
conference
private rights.
рurpose
new
of the
The
Hearing
1958,
ruled,
Officer
without
protect
public
Act was to
in
interest
(cid:127)objection
from
“There is
Brown:
(2)
By
402(b)
communications.
Con
§
legal question
availability.
There
gress gave
right
persons
appeal
prehearing
been a lot
talk in
‘aggrieved
ad
or whose interests are
as
sale and
to the [sheriff’s]
versely
affected’
Commission action.
on,
ignored,
so
have
would
1064,
private
48 Stat.
1093. But these
far
I
because
is not evidence. So
litigants
standing only
repre
have
concerned, you
am
Broad-
[Television
public
sentatives
Fed
interest.
your
still have
old site.”
casters]
eral Communications Commission v.
have known.
matter
ings.
Hearing Examiner had been
mission, that Brown first asserted its
inconsistent
unavailability,
in view of what the record shows it must
upon the
the record about this studio is that it is
unsatisfactory.”
of the Examiner in
posed
tory
ground
initial decision of the
Commission on
in favor of Brown was had
Oral
understanding
acceptability
counsel for
:
be treated as available is
Brown’s continued
“ * *
site was
argument upon exceptiоns
that Television Broadcasters’
had been raised in the
ground
“studio rule” was defended
some two
July 10,1959.
of the site
unavailable,
that it
Brown,
It
that the initial studio
holding improper
notion of
Hearing
only
years
acquiescence
only
reversed
evidence
unsatisfac-
before
The action
prejudice,
Examiner
after the
after the
the Com-
palpably
proceed-
solely
pro-
on
mission’s
be sustained.
Television Broadcasters’ UHF
trary and without foundation the Com
mission’s determination of
favor
and the
ample support in the record
tions to be drawn from the conduct of
view that we
provide
are
issue,”
Ed.
sion
402(b) (l).4 Accordingly, we are of the
Inc. v. Federal Communications Commis
grоunded,
470,
Sanders Bros. Radio
sion, 1942,
of the
language
4. 47 U.S.C.A.
87X by appellant point is Television A raised allow- further should be failing to ed move erred their town.” into Examiner find that Television noted con- “record grave guilty misrepresentations implications con- tains of [Television cerning proposal. foreknowledge early Broadcasters’] its studio possible non-use) offered unavailability (or mission considered the evidence point specified appellant application.” and found agree. objection stage, merit. We be without denied at Februаry 19, 1958, peti- the intervenor’s Affirmed. tion specify amend to a new studio *4 City location within Judge the DANAHER, (dissent- of Beaumont. hearing forward, went ing). and of as August 11, 1958, the Examiner recom- elementary propositions are Certain mended an Telecasters, award to Brown may simply au- The Act and be stated. Inc. grant a thorizes a of construction The Commission, оnly upon application three members ab- a written sworn sent, 6,1959 as of November reversed the as the which shall set forth such facts Examiner. The regulation may by prescribe Commission as the to Commission studio issue judg- noted: to of its as essential an exercise require ment. The Commission’s Rules question already “The studio in is application full that eаch shall contain in existence and was the one used complete mat- and disclosure as such Television Broadcasters in its UHF patently applications, ters. Defective operation, and for which a waiver in accordance with the Rules will be dis- rule, respect with to the UHF accompanied by request unless a missed already granted. has been * of, exception to, applica- * or for waiver an feasibility of the site rule. ble demonstrated as use provides a UHF rule1 One such the studio. If we were re- quire compliance “main studio of a television broadcast with the rule as a principal grant condition station shall be to a located VHF the sums сommunity expended by served,” provision applicant a the in con- structing “good may pursuant be waived for the cause.” studio to a waiver of rule, the largely mutually applicants Various filed ex- wasted. Under the circumstances applications for Channel clusive good we believe cause exists Arthur, All Beaumont-Port Texas. hav- Rule, waiver of the and that Tele- ing “formally” qualified, been found vision Broadcasters, despite urging ordered, consolidated but the of threshold disqualification, is August en- itself of Commission comparative titled to consideration.” designated as an issue as the inter- good venor “whether cause for a exists Surely could have 3.613(a) of Section Rules rеlied the earlier waiver as to the respect proposed to the main studio with UHF use out-of-town site in view by Television Inc.” having, designated sponte, of its sua Examiner, Before the Bureau counsel studio site issue. Once the issue was pointed possibility change presented, of a out we find the Commission talk- comparative picture ing рurporting because of approve about and certainly studio that “it is issue out-of-town site when one stage2 questionable whether at this late intended to use was in 3.613(a) change C.F.R. was not to achieve conformance supra Rule, note but because 2. The deemed it established the site was unavailable. chief record reason Televi proposed sion Broadcasters’ actually completely persuaded that the award involves a we would be town. Now minute, difference, different location. Down terms it makes no post-grant wholly applicant’s fails improvement record to establish proposal by post-award Television Broad- position, terms Comparative disregard disqualification. casters. consideration of an initial determining not at factor all a been led sites Yet Examiner had may ap- here, agree, other position two criticisms rulings hiatus, aspects proof plicants on other irrelevant because became necessarily found controlled the course at outset had hearing. legally, lay vice, Therein once “technically qualified.”3 Examiner financially Broad- denied Television proffered casters’ amendment to show hearing was The whole course changed studio site. contestants necessarily Costs involved altered. controversy were thus in reconstructing, readying as wеll comparative factors, presenting so in, program production4 a new in- very Commission a than different record surely critical town site were *5 should Yet otherwise have been the case. beleaguered financially applicant. Com- simply into back reaches however, peting applicants, had deal record, is, purports such as then present- posture in the then with the case qualification failure, find where there was con- the Examiner. Public ed before doing factually and even in so is wide of by my necessity stressed venience and the mark. might served, colleagues matter be no might applicants prevail, which of example, specified by Fоr the site Tele- by the was recommended indeed Brown vision Broadcasters was not within the process But to which the due Examiner. city. years earlier, Some it had been ultimately de- entitled sure, used KBMT to be but the inter- Commission nied what February 4, venor’s filed affidavit Clearly, my I shall mind did. with the Examiner showed that since demonstrate, it error of the Com- collapse of the UHF has left the record mission studio site been so “had ransacked and colleagues my acceptable. find form which burglarized use, due lack of that recognized Obviously the Commission would have several cost dollars thousand comply applicant that either must repair, and allowance for which had must rule or the Commission with thе original been made in our cost esti- good exists for non-com- find that cause mates.” pliance. that absent com- It follows already finding property waiver, sold at proper had pliance The or a a November qualified. a sheriff’s sale on applicant is against following satisfy judgment regulations rules and mission’s Nothing Broadcastеrs. remained of other conclusion. the statute building grounds outer concrete floor and set forth Here wiring roof, simply all “Even the walls. plumbing are so. More- talking been re- connections had Commission is terms over the moved,” said Television Broadcasters’ to an out-of-town site when of waiver pose many rampant additionally valid differеnt and noted: 3. The why applicant, possessing reasons apparent Television Broad “It for studio location proof. burden of has not met its casters that, (and market one-station sometime adopt argument of Television To up’ required ‘prove UHF) should be to hold that would be competitive sit- a waiver YHF such applicant requested uation.” unnecessary thing futile, in meet to do interpretation ing 4. The Examiner noted none of the burden. That money any figures parties “put stultifying. unthinkable, had into support record to their imagination need run views.” does of December affidavit Mr. Reed’s “good cause” finds But the Commission “is al- in ready non-existent “feasibility of existence”; demonstratеd,” has been
the site a UHF “feasibility” for in 1952 so found completely different ato station related used; actually from that require compliance with if “we were to * * * expended the sums the rule * * applicant [previously] they yet largely wasted”; al- ready been. agen- Commission, like cy, rules. should be bound own glares. Washington, Earnest, error I Mr. M. think James Newton, C., D. D. with whom James C., brief,
Washington, D. was appellant. Chaite, Washington, D.
Mr. Arthur M. C., appellees. *6 Washington Before Prettyman, Judges. Burger, WOODNER,Appellant,
Ian PER CURIAM. Julius SANKIN brought Appellant for a suit declara- tory judgment that he was to re- entitled Garfield, Joseph Appellees. A. appellees deposit paid toward cover No. 16142. purchase The District of real estate. jury. sat After Court Appeals without Court of United Statеs plaintiff’s evidence, the found that District of Columbia Circuit. provisions entitling appel- the contract Argued April 1961. deposit appellant’s lees to retain the 4,May Decided complete failure to the transaction did penalty,
not constitute a and dismissed complaint. We find no reversible er- Plaintiff-appellant not make a ror. did prima provi- facie case that contract unconscionable, sion was unreasonable or ground or that existed for the grant While we of relief. reach claim merits in the interests avoiding circuity action, express whether, opinion or if so under conditions, declaratory a suit what judgment remedy appropriate is an present controversies sort. Affirmed.