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07/08/65 South Florida Television v. Federal Communications

July 8, 1965

SOUTH FLORIDA TELEVISION CORPORATION, APPELLANT

v.

FEDERAL COMMUNICATIONS COMMISSION, APPELLEE, L. B. WILSON, INC., INTERVENOR. MIAMI TELEVISION CORPORATION, APPELLANT,

v.

FEDERAL COMMUNICATIONS



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

COMMISSION, Appellee, L. B. Wilson, Inc.,

Intervenor 1965.CDC.156

APPELLATE PANEL:

Edgerton, Senior Circuit Judge, and Fahy and Wright, Circuit Judges. J. Skelly Wright, Circuit Judge (dissenting).

PER CURIAM DECISION

These appeals challenge the validity of a final decision and order of the Federal Communications Commission, adopted July 29, 1964, denying the applications of appellants South Florida Television Corporation, Civic Television, Inc.,1 and Miami Television Corporation for permits to construct a new television station to be operated on Channel 10 in Miami, Florida, and granting the competing application of intervenor L. B. Wilson, Inc. For prior judicial history of the controversy over Channel 10 at Miami, begun before the Commission in 1953, see our decisions in WKAT, Inc. v. Federal Communications Comm'n, 103 U.S.App.D.C. 324, 258 F.2d 418, and in WKAT, Inc. v. Federal Communications Comm'n, 111 U.S.App.D.C. 253, 296 F.2d 375, cert. denied sub nom., Public Service Television, Inc. v. Federal Communications Comm'n, 368 U.S. 841, 82 S. Ct. 63, 7 L. Ed. 2d 40.

In the proceedings now before us, after these decisions of our court, only Wilson survived as a qualified applicant. On October 19, 1961, the Commission authorized Wilson to begin operations on November 20, 1961, thereafter directing it, however, to file application for renewal of its license within four months from November 20, 1961. Other applications for Channel 10 were required to be filed by May 21, 1962. Appellants filed their applications within that time.

As a result of a comparative hearing on the four applications the hearing examiner on December 23, 1963, decided in favor of South Florida. The Commission in due course reversed, and granted the application of Wilson. This decision, rendered July 29, 1964, is now before us. We affirm.

A principal contention of appellants is that the Commission, unlike the hearing examiner, erred in considering Wilson as having the status of a licensee seeking renewal, though its license, as indicated above, was for only four months. It is said Wilson should have been considered only as a temporary operator and treated on a basis of equality with appellants, no favorable consideration being given to it by reason of its previous operation of the channel. Though Wilson was accorded the status of a licensee2 it was held to occupy a less favorable position than a normal licensee because, as stated by the Commission, of "(a) the limited period afforded under and the nature of the authorization granted, and (b) the aforeknowledge of L. B. Wilson, Inc., of the probability it would be faced with a comparative hearing at the end of its 4-month term."

Other principal contentions of appellants are that, due in part to an unfair advantage allegedly given to Wilson as a licensee, the Commission erred in finding Wilson (1) superior in respect of broadcast experience, (2) superior in integration of ownership with management, and in finding (3) practical equality among the applicants in respect of area familiarity. Due to these asserted errors, and the superiority of appellants in other relevant respects, it is urged the decision in favor of Wilson cannot stand.

The credit given to Wilson in the comparative category of past broadcasting performance due to its record of performance, the Commission stated, was "minor in nature," and such record was not directly considered in any of the three comparative categories above enumerated and characterized as erroneous by appellants. In none of these categories was Wilson given an unfair advantage by virtue of being a license renewal applicant.

Though we might have reached a different result -- this we need not decide -- we conclude that the findings of the Commission, and its decision resting thereon, were reached validly. All factors essential to decision were considered and compared.3 With sufficient factual support all issues were resolved in a manner which disables the court from putting aside the award to Wilson. It was the result of a reasoned and reasonable judgment of the agency charged with primary responsibility in the matter.

Affirme ...


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