Coastal Bend Television Co. v. Federal Communications Commission

WASHINGTON, Circuit Judge. These cases, though not consolidated, present similar problems. In each, a UHF television station complains of action by the Federal Communications Commission which allegedly threatens its economic position by licensing a VHF station to function in its area. The UHF stations, whom we may refer to collectively as “petitioners,” seek stays of the Commission’s actions, pending appeal. All rely on our decision, one judge dissenting, in Greylock Broadcasting Co. v. United States, No. 12,989 (stay granted December 9, 1955).* In Case No. 13,034, Coastal Bend has filed an appeal under Section 402(b) of the Communications Act, 47 U.S.C.A. § 402(b), from actions of the Commission on December 9, 1955, granting the application of Gulf Coast (intervenor here) for a new television station on VHF Channel 6 in Corpus Christi, Texas, and simultaneously denying Coastal Bend’s requests to intervene or secure a stay of action in the Corpus Christi Channel 6 proceeding. In Case No. 13,035, Coastal Bend has filed a petition for review under Section 402(a) of the Communications Act, 47 U.S.C.A. § 402(a), from an action of the Commission denying, on November 10, 1955, a Coastal Bend petition to “deintermix” Corpus Christi, Texas, which sought to delete VHF television assignments from that area and make it an all UHF area. In Cases Nos. 13,038 and 13,039, Monona and Bartell operate UHF Channels 27 and 33, respectively, in Madison, Wisconsin. They are appealing (1) from the December 12, 1955, order of the Commission which granted the application of Radio Wisconsin (intervenor here) for VHF Channel 3 in Madison, Wisconsin, (2) from the December 12, 1955, order of the Commission which denied their petition to intervene in the Radio Wisconsin proceedings, and to reopen the record in that case; or in the alternative to stay any grant in that proceeding until the Commission has disposed of pending rule-making proceedings. In addition, Monona and Bartell are seeking review of the November 10, 1955, order of the Commission which denied their petition to “deintermix” Madison. [500] Cases Nos. 13,057 and 13,058 are similar. Premier and Ohio Valley in Case No. 13,057 and Mid-America in Case No. 13,058 are appealing the Commission action of December 27, 1955, which granted VHF Channel 7 to Evansville TV (intervenor), denied appellants’ requests to intervene in the proceeding and refused appellants’ requests to stay the proceeding pending the completion of the general rule-making proceeding dealing with the UHF-VHF problem. The orders sought to be stayed in the present cases are all adjudicatory, and represent awards of licenses for stations on VHF channels which had long since been finally assigned by the Commission’s Sixth Order and Report, adopted in April, 1952, to the communities here involved. Petitioners have thus far made no serious challenge to the adjudicatory proceedings as such, and, indeed, did not even seek to enter them until the hearings had been completed. Petitioners’ real aim appears to be to stop these adjudicatory proceedings from reaching a conclusion until what they hope will be a more favorable channel allocation rule is adopted by the Commission. The Commission, however, has decided not to impose such a freeze. This is the sort of quasi-legislative policy decision which is virtually immune from attack in the courts. Nor is it likely that petitioners will be able to establish any retroactive invalidity, because of changed circumstances or otherwise, in the 1952 channel allocations rule under which the adjudicatory proceedings took place. They have thus advanced little to show that they are entitled to succeed on the merits of their appeals to this court. In Greylock, by way of contrast, the Commission’s decision was not purely adjudicatory. The Commission there created a new channel which had not existed before under the channel allocation rule, a “drop-in” in the parlance of the trade. This channel was a VHF channel in what had theretofore been a predominately UHF area. UHF stations had become established there, evidently not anticipating VHF competition. Yet the Commission, under its rule-making procedure, finalized the allocation of the new VHF channel. The petition in Grey-lock may thus present a substantial question for the consideration of this court. That is not the case here. These differences also result in distinctions between the relative equities of the respective petitioners and intervenors (the VHF interests). The areas served by petitioners in the instant cases had as long ago as April, 1952, been allotted one or more VHF channels.1 2Thus, petitioners opened their UHF stations with notice of the potential competition from VHF stations on channels already allotted to their areas, whereas in the Greylock “drop-in” situation the UHF station had had no such notice. Petitioners have not shown sufficient likelihood of success on the merits of their cases to justify the granting of stays, in the face of the very great public interest in obtaining additional service through the grants to intervenors. It is, after all, the public interest which must govern.2 The Commission, of course, has not found that injury to the business of UHF station operators would be in the public interest. But that is not the issue. The Commission, after considering petitioners’ pleadings, has affirmatively found that the additional VHF service which intervenors will provide is required in the public interest. If extinction of UHF stations results from the Commission’s policy and actions, the responsibility must lie at the Commission’s door. See Federal Communications Commission v. Pottsville Broadcasting Co., 1940, 309 U.S. 134, 144-145, 60 S.Ct. 437, 84 L.Ed. 656. For us to interfere with the Commission’s de [501] cisión, through the issuance of stays, requires a far stronger case than petitioners have made.3 Stays must be denied. So ordered. Footnotes [*] An opinion on reconsideration is being filed today, 97 U.S.App.D.C. 414, 231 F.2d 748. [1] In Nos. 13,038 and 13,039, one channel; in the other cases, two. [2] Yakus v. United States, 1944, 321 U.S. 414, 440, 64 S.Ct. 660, 88 L.Ed. 834; Scripps-Howard Radio v. Federal Communications Commission, 1942, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229. [3] We note, also, that in No. 13,058 the petitioner (Mid-America) is now and for some time has been off the air and hence cannot establish irreparable injury resulting from the Commission’s action.