246 F.2d 660 | D.C. Cir. | 1957
Lead Opinion
Purporting to act in accordance with the provisions of § 312(c) of the Communications Act of 1934, as amended,
Bridgeport, a town with a population of 800, is so situated in the Columbia River gorge in the State of Washington that no usable television signal, coming directly from any licensed television station, is available to its inhabitants. The town is not within the service area of any existing television station. It is about 110 miles east of Spokane, is about 90 miles south of the Canadian border, and lies at greater distances from the other borders of the State. Surrounded by a rugged, high plateau terrain, approximately one thousand feet above the elevation of the town, its interested inhabitants found it impossible to receive a television signal. Investigation
We thus have a situation where the Commission urges that all communications by radio are either in interstate commerce or affected so as to subject them to the regulatory authority of the Commission. At the same time, the Commission has not made it possible, after all these years, for the issuance of a license to a booster installation, such as is here disclosed. The Examiner concluded that the question before him was not whether a booster station operation may be licensed but whether or not it had been proved that an unlicensed operation should be abated.
“In summary, it is concluded that the television booster station does not cause objectionable or harmful interference to any existing or authorized radio broadcast or communications transmission or reception. This new use of radio, in practice, affords a larger and more effective use of television broadcast channels so that many families in the area are provided with a better, dependable and more economical television program service. The consequences of issuing a cease and desist order would be to take away from those who receive the booster station’s signals the television service they now enjoy. In this remotely situated and mountain-isolated community a public importance attaches to the people’s being informed and entertained through the television medium; of course, there exists no vested right in either those who receive or those who transmit, to a continuation of the operation; the contrary is here declared. But, the utilization of radio channels and the Commission’s essential controls thereof are not impaired or threatened by the television booster station hereinabove discussed, and no other substantial reasons support a conclusion that the public interest, convenience, and necessity would be served by issuing the proposed cease and desist order.”
Appellant insists that its installation is not covered by the Act in that the Commission’s jurisdiction is limited by § 301, 47 U.S.C.A. § 301, pertinent language reading:
“ * * * No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio * * * (d) within any State when the effects of such use extend beyond the borders of said State, or when interference is caused by such use or operation with the transmission of such energy, communications, or signals from within said State to any place beyond its borders, or from any place beyond its borders to any place within said State, or with the transmission or reception of such energy, communications, or signals from and/or to places beyond the borders of said State * * * except under and in accordance with this Act and with a license in that behalf granted under the provisions of this Act.”
We are satisfied from a reading of the section as a whole that Con
The Commission seems to argue, both in its brief to us and in its opinion under review, that we must in this case, in sweeping fashion, deal with all unlicensed booster stations, wherever they are, or whatever the particular problem. But we are not concerned with all such stations, we are concerned only with the problem before us. On this record it has been demonstrated that it is possible without objectionable interference to telecast the signals of the two Spokane stations to the Bridgeport area.
Negligible as the interference may be, we are bound to accept the Commission’s conclusion that this particular installation can be said to be operating in derogation of the Commission’s maintenance of control over the channels of interstate radio communication, but only because the station is unlicensed. The Commission says that the respondent is in violation of § 318 of the Act, 47 U.S.C.A. § 318, in that a licensed operator is thereby required, although this booster is automatic. We understand that section to provide that, in the public interest, the Commission has power to make special regulations governing the granting of licenses for the use of automatic radio devices and for their operation. The Commission says that the Bridgeport booster is further in violation of § 325 (a), 47 U.S.C.A. § 325(a), since the two Spokane stations had not granted express authority for the rebroadcast of their programs. Yet the record shows that both Spokane stations have no objection to authorizing such rebroadcasts when and if the Bridgeport station should be licensed or otherwise sanctioned by the Commission. Despite the anomalies of the situation, the Commission argues in its brief that “the alternative to licensed operation is not unlicensed operation, but no operation.” The Commission thus says, in effect, that instead of serving the public interest by making reception available, it has no alternative whatever but the ouster of the booster.
We think there is an alternative. The Commission’s Decision noted that
Certainly, when a violation of the Act has been shown, the Commission may revoke a station license, but, under § 312(b), it also may impose a lesser sanction. It may issue a cease and desist order. By the same token, under •§ 312 (c) the Commission may consider grounds offered by a “person involved” in a § 312(b) complaint as to “why * * * a cease and desist order should not be issued.” Clearly the Commission must weigh the circumstances, for Congress says that the cease and desist “shall” be issued only if it be decided that the order “should issue.” Congress knew very well what it was saying. It surely knows the difference between “should” and “shall.”
Here the Commission reversed the Examiner’s conclusion that the cease and desist order “should” not issue. It is clear that the Commission decided it had no discretion, once it found a violation to exist. It even so argued. Therein lies its error. Within the scope of our review under § 402(g) of the Act, 47 U.S.C.A. § 402(g) and § 10 of the Administrative Procedure Act,
As we remand the case, we observe that the Commission itself may conclude that it is manifestly inequitable that the appellant be subject to a cease and desist order when the Commission has failed to provide an administrative mechanism through which a license may be procured. We have no doubt that the Commission will consider the problem in the light of the well known standard of “public convenience, interest, or necessity.”
Had the Commission’s jurisdiction been clear from the outset, we have no doubt the appellant would long since have applied for an STA
If after consideration of appellant’s application, the Commission finds itself unable to authorize the issuance of an STA, the Commission may reopen the “show cause” proceedings. Now assured that it has discretion which may be exercised under § 312(c), it is to be expected that the Commission will conform its action to the provisions of § 312 so far as applicable.
Reversed and remanded for proceedings not inconsistent with this opinion.
. 48 Stat. 1084 (1934), as amended, 47 U.S.C.A. § 312(c) (1952).
The low-cost amplifier installation decided upon by the interested participants, operated on a non-profit basis, is in marked contrast with a community antenna television system which was here deemed economically prohibitive. The CATV system would have cost about $28,000.
. “In any case where a hearing is conducted pursuant to the provisions of this section, both the burden of proceeding with the introduction of evidence anc the burden of proof shall be upon the Commission.” § 312(d) of the Act, supra note 1.
. Cf. Allen B. Dumont Laboratories v. Carroll, 3 Cir., 1950, 184 F.2d 153, 155, certiorari denied 1951, 340 U.S. 929, 71 S.Ct. 490, 95 L.Ed. 670.
. “Can Community Antenna TV Be Enjoined?” 20 Albany L.ltev. 69, 75 (1956).
. The only interference which the Commission’s engineers could demonstrate was located in the residence of one Crab-tree. There, by various adjustments of his antenna, Crabtree's set could be made to produce some “ghosting” of the Spokane signals which were believed to be ricocheted from a mountain side. Even so, it would seem sufficient to bring this installation within the reach of § 301, supra.
. Our order of March 8, 1956, stayed the effectiveness of the Commission’s cease and desist order pending “final disposition of this appeal, or until further order of this Court.” We purposefully had withheld earlier disposition of this case because of the Commission’s impending rule-making.
. “The defendant ‘shall’ be dealt with in a stated way; it is the language of command * * Escoe v. Zerbst, 1935, 295 U.S. 490, 493, 55 S.Ct. 818, 820, 79 L.Ed. 1566.
. 60 Stat. 243, 5 U.S.C.A. § 1009(e) (1952).
. Federal Communications Comm. v. Pottsville Broadcasting Co., 1940, 309 U.S. 134, 145, 60 S.Ct. 437, 442, 84 L.Ed. 656.
. Ford Motor Co. v. National Labor Relations Board, 1939, 305 U.S. 364, 373, 59 S.Ct. 301, 307, 83 L.Ed. 221.
. We assume that an application for experimental authorization is appropriate since we are not here concerned with a standard broadcast station and since the Commission is already advised with full particulars as to the purpose for which the STA might issue. Cf. 47 C.F.R. § 1.324 (1953); see Part 4 and Part 5 of the Commission’s Rules.
. It will be remembered that in Coastal Bend Television Co. v. Federal Communications Comm., 1956, 97 U.S.App.D.C. 339, 231 F.2d 498 and Gerico Investment Co. v. Federal Communications Comm., 1957, 99 U.S.App.D.C. 379, 240 F.2d 410, we were dealing with problems arising pursuant to rule-making proceedings which had culminated in the Commission’s Sixth Report and Order, 17 Fed.Reg. 3905. Thus, unlike the present ease, those cases presented no question whatever as to the Commission’s jurisdiction over the television channels.
. For examples of situations involving Commission consideration of its § 312 authority, see In re Application of Tulsa Broadcasting Co., 12 Pike & Fischer Radio Reg. 1256, 1265 (1955) and In re Application of Gulf Television Co., 11 Pike & Fischer Radio Reg. 460, 464 (1954). In the latter case the Commission concluded that § 312 creates no rights in third parties, “but gives to the Commission complete discretion in the exercise of the powers granted thereunder. Accordingly, in the exercise of such discretion, the Commission believes that the above requests should be denied.” Cf. 47 C.F.R. §§ 1.401 and 1.402 (1956), touching procedure with respect to 1he issuance of cease and desist orders or “for dismissing the proceeding,” as the case may be.
Concurrence Opinion
(concurring in the result).
The present situation is a harsh one. The Commission might well have been better advised to ignore the existence of booster stations such as this until the time when it is prepared to deal with them on some basis more equitable than mere repression. But once it decided to take action, if it remained within its statutory authority, its policy decisions must rest on its own doorstep. Federal Communications Commission v. Pottsville Broadcasting Co., 1940, 309 U.S. 134, 144-145, 60 S.Ct. 437, 84 L.Ed. 656; Federal Communications Commission v. WJR, 1949, 337 U.S. 265, 69 S.Ct. 1097, 93 L.Ed. 1353; Coastal Bend Television Co. v. Federal Communications Commission, 1956, 98 U.S.App.D.C. 251, 234 F.2d 686.
This appeal presents two questions: whether the Commission has jurisdiction over the booster station and whether the issuance of a cease and desist order accords with Section 312 of the Act. Since the Commission’s engineers demonstrated that the operation of the booster station caused noticeable interference with the reception of signals originating out-of-state, I agree that the station was forbidden by Section 301 of the Act from operating without a license.
Turning to the issuance of the cease and desist order, it seems clear that the Commission misconceived its statutory authority. The provisions for the issuance of cease and desist orders were added to the Communications Act in 1952, 66 Stat. 716, to provide the Commission with a sanction less severe than license revocation. See S.Rep. 44, 82nd Cong., 1st Sess. 10 (1951). But, in providing for this remedy, Congress did not
We need not now determine what effect, if any, the broad policy statement of Section 1 of the Act has on situations such as the present. The Commission has docketed rule-making proceedings to consider, among other things, the operation of booster stations. Whatever decisions may be reached therein regarding the appropriateness of licensing such operations are not the present concern of this court.
. That section provides: “* * .* No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio * * (d) within any State * * * when interference is caused by such use or operation with the transmission of such energy, communications, or signals * * from any place beyond its borders to any place within said State * * * except under and in accordance with this Act and with a license in that behalf granted under the provisions of this Act.”
. Compare 29 U.S.C.A. § 160(b) (1952) (N.L.R.B.) with 49 U.S.C.A. § 13(1) (1952) (I.C.C.). See, generally, Jaife, The Individual Right to Initiate Administrative Process, 25 Iowa L.Rev. 485 (1940).
. See, e. g., 49 U.S.C.A. § 304(c) (1952) (I.C.C.); 49 U.S.C.A. § 642(e) (1952) (C.A.B.); 29 U.S.C.A. § 160(c) (1952) (N.L.R.B.); 15 U.S.C.A. § 45(b) (1952) (F.T.C.).
. It should perhaps be noted that there is here no issue of agency action directed solely against one of a group similarly . situated, cf. C. E. Niehoff & Co. v. Federal Trade Commission, 7 Cir., 1957, 241 F.2d 37; Moog Industries v. Federal Trade Commission, 8 Cir., 238 F.2d 43, certiorari granted, 1957, 353 U.S. 908, 77 S.Ct. 665, 1 L.Ed.2d 662.