Van Curler Broadcasting Corp. v. United States

Related Cases

BAZELON, Circuit Judge

(dissenting).

In denying intervenor’s motion to reconsider and vacate the stay we had granted herein, we pointed out the potential public injury which could result from authorizing the Channel 10 “drop-in” before the determination of the deintermixture proceeding.1 We said: “Greylock urges, and we agree, that every interest of fair distribution will be served by postponing the allocation until the Commission decides, in the proceeding already under way, whether there is to be such an allocation to this area.”2 And we concluded: “We find specifically that the present allocation of Channel 10 to the Vail Mills area pending the outcome of the deintermixture proceeding would impose upon Greylock losses which it could not recover, and that this threat of loss is not offset by any vantage to the public interest.” 3

I know of no changed circumstance which impels abandonment of that conclusion.

In Coastal Bend we held that, whatever might be the probability that the 1952 station allocations would be deintermixed by the Commission in the current rule-making proceedings, “we clearly should not compel the Commission to delay existing adjudicatory proceedings conducted in accordance with the statute and *731valid regulations thereunder in order to await the outcome of rule-making proceedings.” 4 We said that “an adjudication that conforms to the 1952 allocation is valid” and that the public interest factors being urged against the adjudication had necessarily been determined by the Commission in designing the allocation.5

The case now before us is significantly different from Coastal Bend. The issue it presents is not whether we should prevent the Commission from adhering to the 1952 allocation table pending the outcome of the general deintermixture proceeding; it is rather whether we should permit the Commission to make ad hoc departures from its allocation table in a manner which pre-judges issues pending for determination in the general deintermixture proceeding. Whereas the public interest factors urged by the Coastal Bend petitioners had been determined against them in the adoption of the allocations, those now urged by these petitioners have never been heard or judged, but are now being determined (in practical effect) by way of a departure from the allocations.6

This predetermination of petitioners’ case violates the spirit of Ashbacker Radio Co. v. Federal Communications Commission, 1945, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108. That the proceeding referred to in that case was adjudicatory while this one is rule-making does not alter the case. The Commission necessarily makes some of its determinations in rule-making rather than adjudicatory proceedings. We have specifically upheld its power to determine channel allocations by rule-making. Peoples Broadcasting Co. v. United States, 1955, 93 U.S. App.D.C. 78, 209 F.2d 286; and Logans-port Broadcasting Corp. v. United States, 1954, 93 U.S.App.D.C. 342, 210 F.2d 24. In so doing, we said that such a rule-making proceeding was not to be treated as an adjudicatory proceeding “merely because the rule adopted may be determinative of specific situations arising in the future.” Logansport Broadcasting Corp. v. United States, 93 U.S.App.D.C. at page 345, 210 F.2d at page 27. A hall-mark of rule-making, we pointed out, was “future rather than a present or past effect.” Ibid. It would be most inaccurate to say the action here complained of “merely * * * may be determinative” of a specific situation. It is avowedly directed at one specific situation. Nor can it be said that the effect of the action is only future, for it will inevitably have a present impact. The conflict between petitioners and inter-venor here is whether the Albany-Troy-Schenectady area should become all-UHF, as petitioners desire, or more-VHF than it is, as intervenor desires. The Commission’s action here complained of makes the area more-VHF. The networks’ contracts to supply programs to the stations in the area will immediately be affected by the knowledge that there is to be a second VHF station. Furthermore, since a second VHF is likely to destroy the existing UHF stations, viewers, in buying their sets will “be governed by that circumstance.” 7 Ash-backer holds that, where there are conflicting proposals, it is unfair to grant one and then impose upon the other the *732burden of justifying its displacement. That rule, in my judgment, is applicable to the proceeding in this case, whether it be called rule-making or adjudicatory, for Ashbacker will not tolerate procedure which “may satisfy the strict letter of the law but certainly not its spirit or intent.” 326 U.S. at page 331, 66 S.Ct. at page 150. “Legal theory is one thing. JBut the practicalities are different.” Id. 326 U.S. at page 332, 66 S.Ct. at page 151.

If the majority means to suggest that the Channel 10 “drop-in” was not a departure from, but rather an implementation of the table of allocations, I cannot agree. The provision in the Sixth Report and Order for amendment of allocations provides no particular support for such a suggestion. Any administrative policy may be changed, whether or not there is a specific provision to that effect. Articulating the possibility of amendment does not support a theory that amendment is adherence rather than departure.

EDGERTON, Chief Judge, concurs in this dissent except with respect to petitioner’s motion to supplement the record, and for leave to file additional briefs and make further argument.

. “No public interest is served by an immediate allocation. Under present allocations the area is predominantly— seven to one — UHF. Only one VHF station is operating, and some of the national networks in their competition with one another must use one of the two UHF stations now in operation. The public has bought and is buying its receiving sets in the light of those facts. If the Commission finally decides to leave the area as it is now, the public will buy, or retain, its sets in light of that fact. If the Commission decides to allocate permanently another VHF channel, it seems to be agreed that the UHF stations will fold. The public will thereafter be governed by that circumstance. If a VHF allocation is made temporarily, pending consideration of its permanency, complete public uncertainty is created; both owners and buyers of sets would be thrown into a whirlpool of sales pressures, possibly to no permanent purpose. We see no public benefit in such a completely uncertain temporary arrangement.” Greylook Broadcasting Co. v. United States, 1956, 97 U.S.App.D.C. 414, 416, 231 F. 2d 748, 750.

. Ibid.

. 97 U.S.App.D.C. at page 417, 231 F.2d at page 751.

. 98 U.S.App.D.C. 255, 234 F.2d 690.

. Ibid.

. Since the argument of this case, the Commission has considered these public interest factors and has promulgated a Report and Order (Docket No. 11532, June 26, 1956) concluding, at least tentatively, that these factors favor the position here asserted by petitioners. The Commission also issued a Notice of Proposed Rule-making (Docket No. 17751, June 26, 1956), proposing, in implementation of the aforesaid Report and Order, to delete Channel 10 from Vail Mills. Following tbe promulgation of these documents, petitioner Van Curler moved for leave to add them to the record herein and to file additional briefs and make further argument based upon what it considered to be the Commission’s change of position. The Court has denied that motion, apparently upon the ground that the Commission’s tentative determination that the allocation of Channel 10 to Vail Mills is against the public interest is of no weight in the court’s determination of whether that allocation should be sustained. From that action I dissent.

. Supra note 1.