Capitol Broadcasting Company (Capitol) and Oklahoma Television Corporation (Oklahoma) appeal from grants by the Federal Communications Commission to Supreme Broadcasting Company, Inc. (Supreme), without hearing, of applications for (1) an experimental television authorization and (2) modification of a construction permit.
In March 1957 the Commission assigned VHF Channel 12 for commercial television to New Orleans, where Supreme operates on UHF Channel 20. Supreme asked and the Commission denied a change in its authorization from 20 to 12. (16 Pike & Fischer 1603,1612.) Supreme then filed a “Petition for Temporary Authority” to commence commercial operation on Channel 12 “pending any further action that may be required respecting the regular use of Channel 1'2 in New Orleans by [Supreme] or any other interested applicant.” While this petition for temporary commercial authority was pending, Supreme applied for a construction permit for an “experimental” station, with authority to transmit simultaneously on Channel 12, for at least a year, the entire commercial and sustaining program of Supreme’s Channel 20 station, in order to compare simultaneous transmissions from the same site and to determine the effectiveness of precision offset techniques, with a directive antenna, in minimizing interference to other stations.
In conformity with the Commission’s rules for minimum separation between co-channel stations, the order allocating Channel 12 to New Orleans specified that any Channel 12 transmitter at New Orleans must be at least 190 miles from Capitol’s Channel 12 transmitter at Jackson, Mississippi. New Orleans Deintermixture Case, 15 Pike & Fischer 1603, 1609, Para. 14. But Supreme’s “experimental” application showed that Supreme’s transmitter would be only 162 miles from Capitol’s. Capitol for that reason among others; Oklahoma, a competing applicant for Channel 12 at New Orleans; and other parties, opposed Supreme’s “experimental” application. Yet the Commission granted the application and also a construction permit, without hearing, on June 27, 1957. In July 1957 the Commission ordered Capitol to show cause why its authorization should not be temporarily modified so far as necessary to permit Supreme’s “experimental” operation, and denied, without hearing, the petitions of the parties opposing the grant to Supreme. This Court denied motions of Capitol and Oklahoma for a stay, and Supreme proceeded with construction of its “experimental” station.
On August 30, Supreme applied to the Commission for license and program authority. The Commission returned the application as varying from the construction permit. Supreme then applied for modification of its “experimental” construction permit. Capitol petitioned to dismiss this application or set it for hearing. Oklahoma also petitioned for a hearing. On September 30, 1957 the Commission, without a hearing, denied these petitions, granted the modified construction permit, and granted program test authority.
It is not disputed that the Commission may license experimental stations in order to study the relative propagation characteristics of UHF and VHF and the effects of special equipment. But Capitol and Oklahoma contend the grants to Supreme without hearing were arbitrary and capricious. Capitol’s opposition to the original “experimental” grant is based on substantially these allegations among others:
*632(1) Supreme’s application was on its face inconsistent with the Commission’s rules for experimental stations in that it (a) violated the minimum separation requirement; (b) did not show that wholesale duplication of an existing commercial station’s programs was necessary to the experiment; and (c) showed that a purpose of the application was to enable Supreme to continue full-time UHF operation with the aid of income to be derived from VHF operation and from a resulting affiliation with ABC. Section 4.182 of the Commission’s Rules provides: “No charges, either direct or indirect, shall be made by the licensee of an experimental television broadcast station for the production or transmission of either aural or visual programs transmitted by such station * *
(2) The application was, in substance, for the regular commercial television operation in New Orleans for which Supreme had already applied.
The Association of Maximum Service Teleeasters, Inc., added an allegation that Supreme had incorrectly informed the Commission that the application had been approved by the Television Allocations Study Committee.
Objections to the Commission’s grant of Supreme’s application to modify its construction permit were based on the related allegations that:
(1) Supreme sought to modify features on which the Commission had relied in granting the original application.
(2) Supreme showed rate increases on a card dated March 1, 1957, but not released to the industry until September 6, 1957, one week after Supreme’s first attempt to obtain VHF program authority.
(3) By soliciting business on the basis of a VHF operation and a resulting ABC affiliation, and by advertising that it will “soon * * * become the nation’s first VHF-UHF station operating simultaneously on both Channel 12 and Channel 20” and delivering “VHF coverage at UHF rates”, Supreme violated a condition attached to its “experimental” grant, namely that it would “avoid any action which would create the impression that WJMR-TV is operating or will be authorized to operate on Channel 12.”
The Commission says both its grants to Supreme are valid and that neither Capitol nor Oklahoma has standing to object to them.
Capitol contends the grants have modified its license as a matter of law. Part IV of the Commission’s regulations, which deals with experimental stations, does not define objectionable interference, but does provide in § 4.131(c) that “A license for an experimental television broadcast station will be issued only on the condition that no objectionable interference will result from the transmissions of the station to the regular program transmissions of television broadcast stations. * * * ” Section 3.-610(b) specifies the minimum mileage separations between co-channel stations. By § 3.612, the “nature and extent of the protection from interference accorded to television broadcast stations is limited solely to the protection which results from the minimum assignment and station separation requirements and the rules with respect to maximum powers and antenna heights set forth in this subpart.” The Commission contends that an experimental station need not comply with the minimum station separation requirements if power and antenna height are so much less than the permissible maxima that the station causes no more interference than it would if all requirements were met.
The Commission concedes this would not be true of a standard broadcast station. We need not consider whether it would be true of a bona fide experimental station. In view of Capitol’s allegations tending to show that Supreme was not proposing a bona fide experiment, we think the Commission erred in granting the applications without hearing.
We agree with the Commission that Oklahoma lacks standing, Peoples Broadcasting Co. v. United States, 93 U.S. App.D.C. 78, 209 F.2d 286.
*633Nos. 14034 and 14162 reversed.
Nos. 14043 and 14160 dismissed.