*1 petition for review Richfield’s for enforce- Board’s order

denied and the prayed in its

ment bewill petition.

answer accordingly. Let an order enter Judge MILLER, Circuit

WILBUR K.

(dissenting). opinion, my because, in I dissent subject con plan not a purchase stock requires collective cerning Beeson’s bargaining. Member Board Cf.

n dissenting case, 110 N.L. opinion in this (1954).

R.B. at Inc., Appellant,

WJIV-TV, COM COMMUNICATIONS

FEDERAL Appellee, MISSION,

WSAV, Inc., Intervenor.

No. 12598. Appeals Court

United States Circuit. District of Columbia

Argued Oct. 12,1956.

Decided Jan. Philip Baker, M.

Mr. Washington, D. C., appellant. Baker,

Mr. Warren E. Counsel, Gen. Federal Communications Commission, *2 Henley, grant 319(a) power with whom Messrs. J. Smith was without to inter- Counsel, application Asst. Gen. Federal Communica- venor’s since facili- certain Honig, operation Commission, had tions Counsel, ties for and Isadore A. the of a station Com- been Federal Communications constructed without authori- mission, by Commission; brief, appellee. on for zation were the the and the Com- intervenor, mission’s failure find that to C., Washington, Cohn, Mr. D. Marcus membership Ra- because of in Savannah Neustadt, Stanley with whom Mr. S. responsi- relinquished dio Council had brief, City, in- New York on for the and further a radio licensee bilities as Washington, Dobin, Paul Mr. tervenor. through re- conspired to the Council had appearance in- C., entered an also D. an- competition of the in violation strict tervenor. titrust laws. DAN- BAZELON, FAHY and Before upon Judges. far as the issues turned AHER, So Circuit fact, questions Com of the controverted Judge. DANAHER, Circuit com mission’s decision was within its petence supported by substantial and is Inc., Intervenor, WSAV, on March properly evidence of record. It could WJIV-TV, Inc., petitioner, 1951 and own have found within limits of its the July 1, 1952, applications for a con- filed by expertise inter that room the built Channel for television struction building in venor on the roof of the Georgia. compara- Savannah, After 3 at which lo intervenor’s radio station was hearing, found both tive applicants possessed cated facility television- no “intrinsic technically legally, to be viewed, function. inter So the is qualified, intervenor otherwise that diction of commencement of construction financially that, compara- qualified and encompass of a ‘station’ the does tively, public interest, “The convenience type of re with involved necessity by a would best be served spect respect So, too, to the room.” with grant application of conditional the of petitioner's upon complaint in based WSAV, Incorporated, consequent and the membership tervenor’s in the Savannah WJIV-TV, application denial of the of Council, Radio Commission found question Inc.” con- Petitioner raises no bylaw alleged Council, that a be cerning the determination Commission’s restrictive, rescinded thus was later comparative respect merits negligible significance, inter urges upon competitors er- us as but participation with other venor’s earlier upon to intervenor ror : the protesting radio stations in begun Savannah of construction of non-use dition approving an Commission’s action 319(a) of prematurely in violation § radio broadcast for the additional station 19341; that Act of Communications community was within Savannah arbitrarily and ca- acted right, major and was not of concern finding that certain room priciously in any agree. event. We premature was not intervenor built construction; Commission, Actually, be- the issue the case comes mandatory applicability 319(a) § cause down of § seq. 151 et 1. 47 U.S.C.A. stations with which it proposed frequen- communicate, shall issued under the “No au- used, to be cies desired the hours of the operation thority Act of this day periods during or other time which proposed it is which the sta- begun this continued after tion, purpose for which effect, the station is unless a for its takes used, type transmitting has been the Com- application paratus used, power used, for a to be mission. The construc- to be upon shall set forth such facts the date which the station is ex- by regulation may pected completed operation, as and in * ownership prescribe as and such other information Com- ” may require. location of the station and mission interpretation elevator-penthouse connec- is to control and the roof light columns, 25 feet record tions with in the two steel facts apart. presented contends Steel welded here. Petitioner sleeves were *3 n anypremature precludes columns, a these ex- two steel sleeve each given tending approximately below and that the must be inches statute mandatory approximately and above the effect. inches elevator-penthouse this roof. While Intervenor of radio became licensee being joint work was ben- done for the It in WSAV in 1939. Savannah joint expense efit and at bank of the received an FM 1947. In in lessee, third intervenor a caused occupied intervenor floor in the tenth pent- a welded to sleeve to be such steel Liberty Building Sa- National in Bank column, the other feet from house vannah. lo- Since 1904 has there contemplated Intervenor sleeves. two elevator-penthouse where cated would be 3 sleeves in due course that the building’s are and machine room elevator tower used as the base of its television filed intervenor installed. In when by although adaptation purpose for such specified application, Com- it its utimately be would further construction plan to its locate television mission required. was for tower The steel building. bank antenna on the roof of the unpaint- and delivered December permitted that at was the lessor It unassembled, on ed and still stored up open the roof to ascertain time to Apparently the roof. sleeves the steel building’s steel columns whether readily can be removed. up elevator-pent- roof came of the spring thickness, Some time in the inter- loca- house and to establish the load-bearing venor commenced of a qualities these tion and building room, feet, 19 feet x 35 on the columns. was then discovered that It point immediately roof at a of the east building’s apart, columns, feet steel 12% elevator-penthouse, walls, utilizing three Contempora- penthouse ran to roof. already part including building, of the building neously, the owners of the bank penthouse part the eastern wall and undertaking remodelling were work parapet wiring of the roof. Certain building, necessary in order whole equipment placed were also therein comply re- a law which with state fire possible training program, for use in a quired enclosure of the elevator both actually undertaken. was Nor building shafts and the stair well of the power necessary vision made for full street level roof. Intervenor and transmitter, a bank, owner, the parties determined both that found. There is no clear record as to a would have for use of need whether the room was intended for stor- building top boom tackle on of the age, for use in connection with closed lifting for the of materials to and from personnel training program, circuit or thereupon and lessee Landlord roof. permanent part as a tele- arrang- expenses .agreed to share vision station. Extensive construction ing of the boom and installation for the yet required, and television equipment was used tackle. equipment, either delivered or under con- bring the roof 10-ton a intervenor delivery, for tract must be installed. floor in its tenth use conditioner air as is on hand Such has never been con- offices, sign, a roof WSAV AM-FM power, short, electric nected to there ultimately generator, used steel ample evidence to sustain the Com- same tower. The the television finding possesses mission’s that the room used the bank raise equipment television-facility no “intrinsic func- building heavy materials lower tion.” frames, doors, door concrete metal .as large concrete, safe, blocks, 10- In these circumstances in cooling light tower. conditioner and full respec- air consideration ton tackle had been attached found, boom and claims and of the tive facts WSAV, 319(a) In- Commission concluded that otherwise. The Commission's corporated, “condition- should receive a brief spect re- describes its non-use order with 3 grant al” application. then It WSAV, to the 1951 “but construction as application application policy ordered “that the settled Incorporated commercial tele- points newa Commission” even as out: “Sec- Georgia, Savannah, (a) vision requirement to tion 319 contains no operate on HEREBY the Channel 3 IS must refuse a construc- subject applicant the condition to an be- GRANTED who has presently proposed gun premature so not utilize its construction.” This is does *4 consisting base, clearly steel of three should tower I think we correct that penthouse-roof so, way say of installed on the the end that sleeves to Building Liberty open to future administration Bank sensible National ” ** * 303-304) cloudy (J.A. without a obstruction the section Savannah prop- of the Commission’s exercise of imposed mate- no effects The condition by powers. has been The section er some WSAV, change In- proposal rial in the regard its “unless”' read without to corporated, tower antenna locate its to always by clause which the Commission Thus, building roof. we are on the bank power pass upon and' has within its approve to acted the Commission accord proffered disapprove— a —or authority adopting or- within its plan. colleagues My quoted.4 der are go some Confusion has arisen because view that no farther we need have had recourse to recommendations order would now affirm the Commission legislative history, toor whole, be found in the as a more. without Congress proposals in various while bills II problems wrestled with the radio Congress day.5 rejected But such reeom- agree I far While so as the result mendations. proposals. It such . enact refused involved, speaking myself, would I Instead, expressly re- the Act prefer to rest decision on a broader our posed power con- in the Commission to ground. It is true that the intervenor sider and evaluate situation. each require- has contested before us not recognize a Petitioner has failed to ment that it what seems to me meet distinction, clearly may so set in the forth of- absurd burden. It cut off the Act, operation fending between a steel sleeves install new ones permit of a may station6 and con for the It the same columns. reorient struction of one. asked1 tripod Petitioner has three base of its tower on tous 319 construe the first sentence of § different columns on same roof. It though (a) as pressed it reads: has be- here contention fore Commission that there was no “No shall be issued for construction, “premature” station, condemned construction of a previously Comm., App.D.C. 196, 3. The Commission had so con 70 105 F. unopposed grants cases, denied, 1939, 2d ditioned in two certiorari 308 U.S. O’Konski, Alvin E. 8 Pike & Fischer 60 S.Ct. 84 L.Ed. 492. (1953); TV-Colorado, Inc., R.R. 811 8 highlights 5. See the reviewed the Court (1952). Pike & Fischer R.R. 700 And Broadcasting in National Co. v. United (r), author see 47 U.S.C.A. 303 which § States, seq., 210 U.S. et “make such rules izes S.Ct. L.Ed. 1344. prescribe regulations and such re conditions, not inconsistent strictions The word "station” means “a station may carry law, necessary equipped engage in radio communica- provisions of this Cf. Re out the Act.” energy.” tion or radio transmission of §(cid:127) University System Georgia gents of 153(k). The Act further defines “radio Carroll, 1950, 586, 600, v. 338 U.S. energy” transmission of both include 370, 94 L.Ed. 363. S. Ct. transmission “such and all instrumental- facilities, ities, 4. Woodmen of Life Insurance World and services incidental Society 153(d). Federal Communications such transmission.” * * language only any part has which Not does the struction frequently appear Com- form our elsewhere in commenced court, commonly rules of found to be action on favorable mission’s single in our A illustration will to construct statutes. plication for a sale, mortgage, or suffice.10 “No bill a station.” such any deed of trust to secure a debt of says nothing There sort. personal chattels whereof the vendor meaning mysterious ascribed no * * * possession, shall remain in shall adopted.7 It be valid unless the same be ex no hidden twist. Whether contains ecuted, acknowledged, and within ten begun of a “station” has been days acknowledg from the date of such date of effective or continued after the ment filed in office recorder not, the Act no license Clearly, deeds *.”11 when n “station”shall be issued “unless a an instrument is drawn and filed in com its construction has been pliance statutory conditions, with the sentence Commission.” first is valid. *5 permits 319(a) applies all station § long Such a construction has been es- except may such as within 319 come § many tablished, many juris- fields, in in in (d). It will be seen that the statute dictions, Congress. and is well known to negative, employs “No first clause the the * ** for says shall issued the be “When that the [the statute] * * operation keep and officer property, not be the shall bound to neg- clause, second the in the conditional or the to deliver ative, permit plaintiff, construc- plaintiff, “unless a for its unless the on de- granted by mand, indemnify tion has the Commis- been shall the officer an party irreparable injury fields of the viously, assign for matter “No ences will make clear. “No sider cific facts thereto before be sion.” grounds areWe give conjunction affirmative, temporary unless it as error the constantly an instruction unless he to which he if the conditions introduced of his not unfamiliar with such verdict, stating distinctly without notice to the adverse * law, objection. clearly “unless” not a restraining as a few random refer confronts us giving jury that immediate and appears objects negative, be retires * * *”8 or the failure met, order shall party may will result from we have to con objects result. usage many spe Ob vigore, loosened went the affirmative plaintiff enactment, vision.” though negative form of officer shall except; sometimes liver it to against excepted or unloosened from what “The word ^[*] sentence after the word unless before confers the 12 negative -x- its does so from,’ so what expression amounts to an affirmative primary claim the third and in fact keep unless has plaintiff. ^[*] meaning, that if the * * all indemnify, in form it or that ^[*] meaning restrictive property or *. For such in a statute * * * the force follows ^[*] excepted then the conveys proprio is ‘un- party, ^[*] de- is a Manning, Keenan, Bowman & Co. v. supra 12. text, 7. See exact note 2. 55-56, N.Y.Supp. N.Y. 41 51, Fed.R.Civ.P., Rule 28 U.S.C.A. Append.; and see Dillon v. Gen Exchange Corp., 65, Fed.R.Civ.P., eral Insurance 9. Rule Tex.Civ. 28 U.S.C.A. App.1933, (“This policy 60 S.W.2d 331. enactments, many may 10. From one select usage countersigned shall not be valid unless comparable statutory instances agent duly authorized o£ the Com negative.” of the “double Cf. 29 U.S. ** *.”); pany Graham v. Wichita 159(f), (g) (h). § C.A. and Co., 1924, Elevator Terminal Kan. (No 11. D.C.Code § 42-101. P. claim for attor- scrap- relegate guides, be not Applying commanded to there need understanding heap 319(a). problem thousands dollars worth use- no § equipment ful and that when The sentence means point a lends itself to the plicant new need. submits to plan, whole, is that proposal of a “station” taken the erection therefor, permit construction of a sta- or different seeks a new justify tion plans, a com- must of a outlines whether for issuance adaptation struction pletely new use. If new station or for the existing station, approve, the- Commission shall so modification of an granted. may may application construction Of consider course, light the inquiry make a facts Commission must in the of all the satisfy itself, engineering factual but If detail submitted. part application satisfactory, of its function. be found may approve Accordingly, application for a permit. if other a construction Then required to set conditions of shall 319 and § type forth what of construction met, sta- have if the planned, whether it construc- be for the in ac- constructed have been shall station, tion of a new the modification of permit as the construction cordance granted, sta- construction of a standard broadcast tion, issued. license shall be station, FMan broadcast or a tele- whole, is aas command not, station, what vision broadcast stated, sentence, simply *6 The first clear. engineering to be data complete with ap- must the means respect The supplied thereto. with proposed done, or is prove what specify, and may required to plication be approved, a done, construc- when so and prescribe, so forms the Commission’s granted. permit will be proposed be will structure the whether building. top An AM station The- a case. a us assume on the of Let constructed In 1947 in 1939. of an to conversion licensed forbid the Act does not permit, adap- existing applies FM its already for an construction or structure adapt, as plan far to so The Act of station. exhibits its needs a tation to the assembling present facil- AM broadcast of all of possible, its forbid the does not equipment from May Commission consider the not the the materials ities. later, “station,” feasible or will proposal if it be found sooner which a the say facilities, incorporate does not AM there- the be constructed. to permit previously permit au- upon approve a construction that a construction may type not ad- for one of station FM station? When 1948 the thorized the another, provide nor had demonstrated to of the science be modified vance existing of type struc- practicability of commercial televi- does forbid use an the Commission, carry sion, rule- tower which after ture of to making, a antenna. had allocated channels accord- will accommodate television might Empire approve applica- ingly, of State the use Witness Building. say which The Act that an a TV does not tion for construction may previously applicant not make new or added use include of constructed use will already any equipment, susceptible plant of or or owned conversion facilities Surely applicant, and it desires uses? to TV modification meeting any mandatory expand. public such tele- Were interest as to involved, present requirements, is hibition holder a vision ney ‘unless’ is in the nature of fees shall constitute enforceable the word a preceded. pursuant attached to what unless stated to a limitation lien written City Hickory approved by court); *”); v. Ward Southern contract Ry. 1904, 189, Ass’n, Co., Men’s 137 N.C. Interstate Business S.E. Acc. 674, 204-205; People, cf. 169 N.W. Alexander v. Iowa words, following (“In P. other 7 Colo. predi- prior possible of broadcast on a class as one foresighted grant precluded cate for it of a construction be would permit? questions take planning it to Answers to such which would spe- developments applicant discov- disclose whether an seeks of new account advantage phases simply “jumping cial scientific eries gun” Congress purposefully by applying “pressure.” or field. broadcast never has said that. here, certainly, judging Petitioner legisla- argument, from its misread the may inquiry reason- Commission’s history. tive in Con- From debates expected ably various to canvass the be gressional adoption prior to the sessions previously steps circum- taken and the per- of the Radio Act of it becomes proposed upon use attendant stances fectly rejected recom- clear various existing structure, itsor conversion of an proposals mendations for advance adap- or its the status of “station” approval construction were related ques- tability as one. Several for use only Congressional purpose to a that the suggest use Was the themselves. tions prior Commission because of construc- previously the structure authorized “pressured” tion is not into of ra- with the transmission connection grant of a “station” license.13 But the energy, irrespective particular dio surely is authorized to con- presently use? Was questions sider answers to such as are “begun,” com- had so suggested arriving herein a deter- at peti- the intention of menced mination toas whether or not to advantage gaining possible tioner’s permit. a construction competitor? petitioner, Has the over pow- It is clear that the some Commission’s because sought reasonably extent, may use ers whatever nature be exercised effec- purposes tuate the Com- that construction influence Act. In in- judgment, decision with to an formed mission’s application reference the Commission must filed, filed, somewhere, draw line for a con- but that *7 Having petitioner duty.14 Congress permit? Does the in in mind what struction up- sought application rely presently pending accomplish, we be “led not case, necessity very securing permit prior this In 13. legislative history to such sidered construction was thus intended pressure Act, licensing as will be seen on the Communications reduce au- thority in that its extensive references. from latter’s decision to prior does, lengths establish zones “Unauthorized of wave was not disqualify therefore, accompli WSAV as an to be influenced the fait attempting plicant herein. Without de- construction of considerable thereof, Expenditures Congressional portion. tailed account are therefore re- objective underlying intent and the 1922- lated to construction of facilities legislation preceding principal the enactment of value 27 of which lies in their use proposed which, purposes.” (J.A. Radio Act of the Federal 1927 broadcast turn, precedía! presently 287-88) in control- ling 1934, Communications act Reg. 402, 10 Pike & Fischer See 430j Radio discourage amended, applicants compare was (1954); H.R.Rep. No. making large using investments and accompany 4557, 321, 417 to H.R. P.L. ‘improper pressure’ investments as Cong., (1953), 1st 83d Sess. 68 Stat. 35 licensing authority. At (1954), 319(d). U.S.C.A. requirement securing time this (antecedent question pretty a construction to ob- 14. “That much taining operate) urged everything arguing a license worth was in the law. Congress, following County pre- McCarter, situation Hudson Co. Water v. existing 349, 355, 529, in view of the then state vailed: U.S. S.Ct. 52 L. art, Hay youth night, age the radio construction of a station Ed. 828. types”, only involved the extent installation of are said Mr. Justice Holmes :;adio equipment dependent upon 1925, Gavit, was in Irwin v. 268 U.S. length’ use; 475, 476, the ‘wave S.Ct. was to 69 L.Ed. 897. results,”15 to absurd or futile even if the 75 S.Ct. 660 [99 L.Ed. 1253]. See posed spect I literal words could be read mean what petitioner certainly Thinking no condition of construction for which a here had will not thus, I would steel might sleeves as say argued. granted. properly the Commission's non-use have said part have As it im- re- is, 310 U.S. 84 L.Ed. 1345] District also United States et al. v. American ciation, Trucking bia v. 221 F.2d Young ^[95] Associations, 59.” Men’s U.S.App.D.C. ; [60 S.Ct. Christian Asso- Inc., Colum- et [179], al., order unreasonable even if the result

be not At commanded the statute. agree upon rate, we affirmance. Judges FAHY, BAZELON and Circuit

(concurring affirmance).

Our affirmance rests on the Commis-

sion’s construction of the statute. We pre-

think the different construction TELANSERPHONE, Inc., Appellant, Judge DANAHER is ferred inconsist- legislative history with the ent FEDERAL statute. As Commission states in COMMUNICATIONS COMMISSION, Appellee. case, in this after an re- brief extended legislative history, Crabb, Robert C. view the Intervenor. No. 12716. seeming “Despite a lack Congressional specific consideration United Appeals States Court of premature construction of either District of Columbia Circuit precise the limited extent or nature Argued Oct 1955. engaged by WSAV, of that it is Decided Feb. Congress clear that did intend both erected prior to issuance of a there opera

for should not be licensed for *8 premature and that

tion construc absolutely disqualify should not applicant. Commission’s WSAV, prohibiting use

of the steel stubs which were erected permit, fully

without a effectuates congressional intent.

“Since Commission’s uniform

interpretation 319(a) of Section consistent both the legislative purpose thereof, ‘great weight,’ it is entitled to ought decision affirmed. Manufacturing Company Union Board, Labor

National Relations

532, 536, ^[95] U.S.App.D.C. [252], 221 cert, denied [349 U.S. 921] F.2d Trucking 534, 543, Ass’ns, 15. United States v. American 310 U.S. 60 S.Ct. 1064, 84 L.Ed. 1345.