Indiana Broadcasting Corp. v. Federal Communications Commission
Opinion of the Court
Petitioner, Indiana Broadcasting Corporation, the licensee of WANE-TV, a Fort Wayne, Indiana, UHF television station, seeks review of two memorandum opinions and orders of the Federal Communications Commission
The Commission’s distant signal rule prohibits a CATV system from distributing distant signals within the predicted Grade A contour of a station in the Nation’s 100 largest television markets save upon a determination that their introduction will be “consistent with the
Fort Wayne has a population
Angola, with a population of 4,746, is situated about 35 miles northerly of Fort Wayne, within its television market. It is outside the Grade A contours, but within the Grade B contours, of the three Fort Wayne stations, as well as of two share-time stations in Lansing, Michigan. GT&E proposed to carry the signals of these five stations,
Delphos, located about 41 miles southeasterly from Fort Wayne, has a population of 6,961. It lies within the Grade A contour only of WIMA-TV, a network-affiliated station in Lima, Ohio,
These arguments the Commission found wanting.
Petitioner presses on this review the thesis that the Commission erred in these dispositions. This claim, in its several major facets, we investigate in the ensuing parts of this opinion. From this consideration, we ultimately reach the conclusion that the Commission must be affirmed.
I
We first consider the contention that the Commission’s refusal to examine petitioner’s contentions in an evidentiary hearing represented an unreasonable deviation from the administrative policies, established in non-CATV
We disagree. Petitioner’s requests for a hearing were denied in the view that they were critically deficient in terms of requirements set by the Commission’s CATV regulations. We find that the regulations by which the requests were measured are reasonably calculated to promote rather than abridge the regulatory scheme by which UHF has traditionally been afforded special protection. We later sustain the Commission's decisions against charges that it misapplied its regulations and disregarded the considerations upon which they are based. In sum, what we say now is that in rejecting petitioner’s efforts to obtain an evidentiary hearing, the Commission did not become unfaithful to the past.
Quite recently, the Commission conducted a comprehensive rule-making proceeding which led to the issuance in 1966 of its Second Report and Order
These regulations reflect the Commission’s expert judgment that the still unknown repercussions of CATV on UHF
We ourselves have had occasion to address the problem of CATV impingement on UHF broadcasting and the Commission’s regulatory mechanism for dealing with it. In Buckeye Cablevision, Inc. v. FCC,
We likewise regard the Commission’s distant signal rule
II
While, as we have stated, the Commission’s rules command an evidentiary hearing only where a distant signal is introduced into a station’s Grade A territory,
The Commission declined to adopt petitioner’s litigative approach. “[T]his argument,” it said, “is in reality an attempt to employ a fixed mileage standard in top 100 cases, and we have rejected this approach in the Second Report and Order, where our reasons are set forth. We reject it here for the same reasons.”
In its Second Report and Order, the Commission decided on virtually mandatory hearings for the cases embraced by its distant signal rule, and for other cases, on hearings on the basis of substantially-supported factual allegations of potential harm to the public interest.
The Commission, also in its Second Report and Order, elaborately supported each of the twin elements comprising the distinguishing criterion. It employed the Grade A contour because, despite individual differences in site and equipment, stations in a given market tend over a period of time toward approximation in their Grade A service areas.
With similar clarity, the Commission articulated the considerations which led to its adoption of the top-100-market component in its standard for automatic hearings. Embracing about 90 percent
Finding, then, as we do, a reasonable basis for the Commission’s standard, we sustain its distant signal rule and the limitations with which it surrounds automatic hearings.
III
Petitioner further opposed the CATV projects in suit on the broad ground that they would adversely affect the development of UHF broadcasting in the Fort Wayne area by weakening economically the existing UHF stations therein and by discouraging interest in utilization of the available Fort Wayne commercial channel. Since the projects were beyond the scope of the distant signal rule, it was incumbent upon petitioner, to qualify the cases for an evidentiary hearing, to “state fully and precisely all pertinent facts and circumstances relied upon to demonstrate the need for the relief requested and to support a determination that a grant of such relief would serve the public interest.”
The record contains uncontested data, supplied largely by petitioner, which glare in the backdrop against which its claims are to be viewed. WANE-TV’s Grade B contour covers 5,450 square miles inhabited by 564,996 persons. This area includes, of course, its smaller Grade A contour which circumscribes 2,335 square miles in which 360,184 people live. Fort Wayne with a population of 161,776, and the surrounding Allen County with a population of 232,196, lie wholly within WANE-TV’s Grade A contour.
In the region between WANE-TV’s Grade A and Grade B contours, upon which this litigation focuses, there are 204,812 residents. These constitute less than 35 percent of the total population within WANE-TV’s service area. Angola and Delphos, both lying beyond the Grade A contour, have a combined population of but 11,707 — less than six percent of the total between WANE-TV’s Grade A and Grade B contours, and less than three percent of the total population within its service area.
Petitioner alleged that importation of distant signals into Angola and Delphos would diminish its revenues and, consequently, its programming service but, as the Commission found, its backup materials did not forecast these consequences.
And petitioner produced little indeed to explicate its contentions.
Nor can we quarrel with the Commission’s rejection of petitioner’s plea that intervenors’ systems would chill interest in the commercial channel still available in Fort Wayne.
The main thrust of petitioner’s arguments — both before the Commission and here — is to be found in their predictions as to the cumulative effect of growing CATV service on future UHF broadcasting from Fort Wayne. Adverting to CATV applications, granted or pending, between WANE-TV’s Grade A and Grade B contours,
Petitioner’s statistics listed “CATV activity” in six communities, all outside WANE-TV’s Grade A contour, with a combined population of 36,184 — less than seven percent of the total population within WANE-TV’s service area. Petitioner supplied no information as to the number of homes served by CATV, nor as to the extent to which the local CATV franchises were granted or pending. And as the Commission noted, any repercussions from these CATV systems in actual operation would be substantially dampened by virtue of the Commission’s carriage
This case is not essentially dissimilar to Cedar Rapids Television Company v. Federal Communications Commission
We are mindful of the problems the burgeoning CATV industry is presenting for television broadcasting, and the burdens incidental to full scale evidentiary hearings in a constantly increasing number of CATV applications, but it is primarily for the Commission to make the adjustment. The question is not what
Affirmed.
. In re GT&E Communications, Inc., 6 P.C.C.2d 643 (1967) ; In re Shardco Cablevision, Inc., 8 F.C.C.2d 71 (1967).
. By the Commission’s regulations, “[t]he term ‘distant signal’ means the signal of a television broadcast station which is extended or received beyond the Grade B contour of that station.” 47 C.F.R. § 74.1101 (i) (1968). The reference to the station’s Grade B contour incorporates one of the field intensity contours computable in accordance with specifications set forth in the regulations. See note 4, infra.
. For the Commission’s definition of a community antenna television system, see 47 C.F.R. § 74.1101(a) (1968). See also First Report and Order, 38 F.C.C. 683 (1965) ; Second Report and Order, 2 F.C.C.2d 725 (1966).
. A station’s Grade A contour is the boundary of the area wherein the best 70% of receiver locations obtain good picture quality 90% of the time. Its Grade B contour bounds the area wherein the best 50% of locations receive a good picture 90% of the time. See Sixth Report and Order, 17 Fed.Reg. 3905, 3915 (F.O.C. 1952) ; 47 C.F.R. §§ 73.683-73.684 (1968).
. Pursuant to 47 C.F.R. § 74.1105(a) (1968).
. “No CATV system operating in a community within the predicted Grade A contour of a television broadcast station in the 100 largest television markets shall extend the signal of a television broadcast station beyond the Grade B contour of that station, except upon a showing approved by the Commission that such ex-' tension would he consistent with the public interest, and specifically the establishment and healthy maintenance of television broadcast service in the area. Commission approval of a request to extend a signal in the foregoing circumstances will be granted where the Commission, after consideration of the request and all related materials in a full evidentiary hearing, determines that the requisite showing has been made. * * * ” 47 C.F.R. § 74.1107(a) (1968).
. See 47 C.F.R. § 74.1109(a). See also Channel 9 Syracuse, Inc. v. FCC, 128 U.S.App.D.C. 187, 385 F.2d 969 (1967) ; Hubbard Broadcasting Co. v. FCC, 128 U.S.App.D.C. 197, 385 F.2d 979 (1967).
. 47 C.F.R. § 74.1107(a) (1968), quoted supra note 6.
. “No CATV system, located so as to fall outside the provisions of paragraph (a) of this section, shall extend the signal of a television broadcast station beyond the Grade B contour of that station, where the Commission, upon its own motion. or pursuant to a petition filed under § 74.1109, determines, after appropriate proceedings, that such extension would be inconsistent with the public interest, taking into account particularly the establishment and healthy maintenance of television broadcast service in the area.” 47 C.F.R. § 74.1107(e) (1968).
. Population references herein are to the 1960 census.
. As to the size and location of WANE-TV’s viewing audience, however, see the text infra pt. III.
. This would be required by the Commission’s carriage rule. See note 64, infra, and accompanying text.
. WIMA-TV did not object to Shardco’s project.
. The Commission had assigned two UHF channels to Lima, Ohio, and another to Defiance, Ohio, and an application for the latter was pending. A predicted contour could be placed over Delphos by stations at the reference points in those communities.
. As required by the carriage rule. See note 64, infra.
. The Grade B contours of the two Indiana stations, one of which was in Fort
. In re GT&E Communications, Inc., supra note 1, 6 F.C.C.2d at 644-45; In re Shardco Cablevision, Inc., supra note 1, 8 F.C.C.2d at 72-73.
. In re GT&E Communications, Inc., supra note 1, 6 F.C.C.2d at 644; In re Shardco Cablevision, Inc., supra note 1, 8 F.C.C.2d at 72.
. In re GT&E Communications, Inc., supra note 1, 6 F.C.C.2d at 645; In re Shardco Cablevision, Inc., supra note 1, 8 F.C.C.2d at 73.
. See note 64, infra, and accompanying text.
. See note 63, infra, and accompanying text.
. In re GT&E Communications, Ine., supra note 1, 6 F.C.C.2d at 645; In re Shardco Cablevision, Inc., supra note 1, 8 F.C.C.2d at 73.
. In re GT&E Communications, Inc., supra note 1, 6 F.C.C.2d at 645; In re Shardco Cablevision, Inc., supra note 1, 8 F.C.C.2d at 73.
. In re GT&E Communications, Inc., supra note 1, 6 F.C.C.2d at 646; In re Shardco Cablevision, Inc., supra note 1, 8 F.C.C.2d at 73-74.
. In re GT&E Communications, Inc., supra note 1, 6 F.C.C.2d at 645; In re Shardco Cablevision, Inc., supra note 1, 8 F.C.C.2d at 73.
. See, e. g., In re Central Coast Television, 2 F.C.C.2d 306, modified 3 F.C.C. 2d 524 (1966); In re Triangle Publications, Inc., 29 F.C.C. 315 (1960), aff’d sub nom. Triangle Publications, Inc. v. FCC, 110 U.S.App.D.C. 214, 291 F.2d 342 (1961).
. Amendment of Section 3.606 (Lafayette-Terre Haute, Indiana), 16 R.R. 1640, 1642 (1958). Compare Channel Assignment in Bloomington-Indianapolis, 1 F.C.C.2d 496, 500 (1965).
. See Miners Broadcasting Serv., Inc. v. FCC, 121 U.S.App.D.C. 222, 349 F.2d 199 (1965); Melody Music, Inc. v. FCC, 120 U.S.App.D.C. 241, 245 F.2d 730 (1965). Cf. Pinellas Broadcasting Co. v. FCC, 97 U.S.App.D.C. 236, 238, 230 F.2d 204, 206, cert. denied 350 U.S. 1007, 100 L.Ed. 869 (1956).
. 2 F.C.C.2d 725 (1966).
. 2 F.C.C.2d at 734-45. See also United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968); Buckeye Cablevision, Inc. v. FCC, 128 U.S.App.D.C. 262, 387 F.2d 220 (1967).
. 2 F.C.C.2d at 746 et seq.
. See id. at 745-46.
. Id. at 746 et seq.
. Id. at 781-82. Congress manifested a similar concern in the passage of all-channel receiver legislation. 76 Stat. 150 (1962), 47 U.S.C. § 303(s).
. See, e. g., 2 F.C.C.2d at 776, 881.
. Id. at 797-808.
. Id. at 764, 881-83. See also Buckeye Cablevision, Inc. v. FCC, supra note 30, 387 F.2d at 224; Channel 9 Syracuse, Inc. v. FCC, supra note 7, 385 F.2d at 971 (1967). Compare National Broadcasting Co. v. United States, 319 U.S. 190, 218, 224, 63 S.Ct. 997, 87 L.Ed. 1344 (1943).
. 47 C.F.R. § 74.1107(a) (1968), quoted supra note 6.
. 47 C.F.R. § 74.1107(c) (1968), quoted supra note 9.
. Supra note 30.
. Id. at 224. See also Cedar Rapids Television Co. v. FCC, 128 U.S.App.D.C. 270, 387 F.2d 228 (1967); Channel 9 Syracuse, Inc. v. FCC, supra note 7.
. 47 C.F.R. § 74.1107(a) (1968), quoted supra note 6.
. See note 9, supra, and related text.
. E. g., In re Taft Broadcasting Co., 5 F.C.C.2d 746 (1966); In re Midwest Television, Inc., 4 F.C.C.2d 612 (1966).
. E. g., In re Video Utility Corp., 25 R.R. 851 (1963).
. See notes 6-9, supra, and accompanying text.
. In re GT&B Communications, Inc., supra note 1, 6 F.C.C.2d at 644. On this basis, the Commission concluded identically as to Shardco. In re Shardco Cablevision, Inc., supra note 1, 8 F.C.C.2d at 72.
. See notes 6-9, supra, and accompanying text.
. “We have employed the grade A contour of any station since, while stations often are located at different sites or have different powers or heights (and thus different A contours), these grade A service areas in the same market have a tendency of becoming fairly close to one another over a period of time. In any event, we think that this is an appropriate criterion since it encompasses the essential area upon which new UHF broadcast operations in the market would be based, without including the much larger areas falling within the grade B contours, as has been urged by some in this proceeding. Because our effort is to carve out such an essential area upon which new UHF development would be vitally based, we have employed the predicted grade A contour; use of the predicted contour should also have the advantage of definiteness and easier administration. In the unusual instance where the requirement may be inappropriate, waiver can be sought.” Second Report and Order, 2 F.C.C.2d at 783 n. 63 (1966).
. Id. at 783 n. 63. The Second Report and Order was later reconsidered by the Commission and the Grade A contour standard embodied in § 74.1107 of the regulations was retained. The Commission then said: “[The Grade A contour] does not include the much larger areas falling within the grade B contour, as requested by some of the petitioners for reconsideration. Nor is it limited to the immediate environs of the principal community, as sought by others. But the grade A contour generally carves out the essential area upon which UHF operations in the market would usually be based. We recognize that the grade A contour may encompass some localities where, because of the particular circumstances, an evidentiary hearing appears unnecessary. We have already granted waivers of the hearing requirement in some instances. No standard suggested to us would precisely fit all the situations we are seeking to reach, to the exclusion of all others. The use of the grade A contour, coupled with the procedures for waiver, insures that all proposed distant-signal CATV operations in the area of apparent reasonable concern are brought before us for consideration and such action as may be warranted in the public interest in the particular circumstances.” CATV Regulation, 6 F.C.C.2d 309, 318-319 (1967).
. “We have selected the top 100 markets for special attention because it is in these markets that UHF stations or wire pay-TV based upon CATV operations are most likely to develop and therefore the problems raised are most acute. Further, as noted, any delay in commencement of CATV operation because of the necessity for evidentiary hearings is mitigated by the consideration that these markets generally have a considerable amount of presently available and prospective new service. Finally, the top 100 markets include roughly 90 percent of the television homes in this country. Our policy therefore focuses on the critically important areas.” Second Report and Order, 2 F.C.C.2d at 783.
. “Admittedly, there can be substantial problems affecting the public interest where the CATV system proposes to extend the signals of broadcast stations beyond the grade B contour into areas below the top 100 markets. But there are differences between the two situations which call for different procedures. In markets below the top 100, the independent UHF (or VHF) station is much less likely to develop; the stations in such markets are apt to be three or less in number and network affiliated. This means, in turn, that the non-duplication provision is effective (since network programing will be significantly involved), and protection of a station’s network programing should contribute very substantially to insuring its continued viability. It would appear that network programing will continue to be available in such markets; in the unlikely event that such programing becomes unavailable because of CATV impact, there would appear to be other appropriate remedial action which can be taken. Further, it is in the markets below 100 that there may be under-served areas where CATV can make its most valuable and traditional contribution. Indeed, the market division which we adopt is really a division between CATV in its traditional sense and the new, revolutionary facet of CATV, as posed by its entry into the major markets. It is the latter which peculiarly requires the most thorough examination in the context of an evidentiary hearing.” Id. at 783.
. “We think, therefore, that a fair compromise is to draw the line as to special attention (i. e., evidentiary hearings) at the 100th market, and below that point, simply to take such action as may be necessary in the public interest, upon appropriate petitions bringing substantial questions to our attention. * * * We shall not necessarily hold evidentiary hearings in connection with such petitions in the smaller markets. Such hearings could be a considerable burden both upon the CATV operation and the broadcaster in these small communities. * * * Indeed, the hearing might thwart the initiation of needed service. Therefore, while hearings might be held in some instances, we have devised flexible procedures generally to treat expeditiously petitions or requests involving the markets below 100, since we recognize that to hold hearings upon each such petition or request might be burdensome to all parties involved and to the public.” Id. at 783-784.
. Compare National Broadcasting Co. v. United States, supra note 37, 319 U.S. at 224-225, 63 S.Ct. 997; Goodwill Stations, Inc. v. FCC, 117 U.S.App.D.C. 64, 71, 325 F.2d 637, 644 (1963); Fort Harrison Telecasting Corp. v. FCC, 116 U.S.App.D.C. 347, 352, 324 F.2d 379, 384 (1963), cert. denied Sangamon Valley Television Corp. v. United States, 376 U.S. 915, 84 S.Ct. 665, 11 L.Ed.2d 611 (1964); Coastal Bend Television Co. v. FCC, 98 U.S.App.D.C. 251, 255, 234 F.2d 686, 690 (1956).
. FPC v. Texico, Inc., 377 U.S. 33, 44, 84 S.Ct. 1105, 12 L.Ed.2d 112 (1964) ; United States v. Storer Broadcasting Co., 351
. National Broadcasting Co. v. FCC, supra note 56, 124 U.S.App.D.C. at 125-126, 362 F.2d at 955-956. See also National Broadcasting Co. v. United States, supra note 37, 319 U.S. at 224, 63 S.Ct. 997.
. 47 C.F.R. § 74.1109(c) (1968).
. In re GT&E Communications, Inc., supra note 1, 6 F.C.C.2d at 644-45; In re Shardeo Cablevision, Inc., supra note 1, 8 F.C.C.2d at 72-73.
. In re GT&E Communications, Inc., supra note 1, 6 F.C.C.2d at 645; In re Shardeo Cablevision, Inc., supra note 1, 8 F.C.C.24 at 73.
. Cf. Interstate Broadcasting Co. v. FCC, 109 U.S.App.D.C. 190, 192, 285 F.2d 270, 272 (1960), where the allegations were “factual” and “specific.”
. In re GT&E Communications, Inc., supra note 1, 6 F.C.C.2d at 644; In re Shardco Cablevision, Inc., supra note 1, 8 F.C.C.2d at 73.
. 47 C.F.R. §§ 74.1103(e)-(f) (1968). This rule preserves program exclusivity for stations providing Grade B or better service to a community with respect to lower priority or more distant duplicating signals.
. 47 C.F.R. § 74.1103(a) (1968). This rule requires all CATV systems to carry, without material degradation, the signals of all television stations providing Grade B or better service to the community in which the CATV system operates.
. In re GT&E Communications, Inc., supra note 1, 6 F.C.C.2d at 644; In re Shardco Cablevision, Inc., supra note 1, 8 F.C.C.2d at 72.
. And no application had been filed for a second UHF channel in Lima, Ohio, the only other allocated commercial UHF channel that could serve either Angola or Delphos, nor did it appear that an applicant therefor would need special protection because of inability to obtain a network affiliation. Compare Cedar Rapids Television Co. v. FCC, supra note 42, 387 F.2d at 231-32.
. It appears that only one CATV system is now operating in the Fort Wayne area, and that it is outside WANE-TV’s Grade A contour. It seems also that there has been no application for CATV within its Grade A contour.
. 47 C.F.R. § 74.1107(a), quoted in relevant part supra note 6.
. As petitioner points out, such a hearing can be waived, but only when justified in
. In re GT&E Communications, Inc., supra note 3, 6 F.C.C.2d at 645; In re Shardco Cablevision, Inc., supra note 3, 8 F.C.C.2d at 73.
. In re GT&E Communications, Inc., supra note 3, 6 F.C.C.2d at 645; In re Shardco Cablevision, Ine., supra note 3, 8 F.C.C.2d at 73.
. See note 64, supra.
. See note 63, supra.
. Supra note 42.
. 387 F.2d at 233-232.
. Id. at 233, 232.
. Id. at 233-232.
. Id. at 233.
. In re Dubuque TV-FM Cable Co., 6 F.C.C.2d 564, 566 n. 4 (3967), aff’d sub nom. Cedar Rapids Television Co. v. FCC, supra note 42.
. Cedar Rapids Television Co. v. FCC, supra note 42, 387 F.2d at 232.
. Id. at 230, quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 430, 433-434, 65 S.Ct. 3235, 89 L.Ed. 3700 (3945).
. E. g., National Broadcasting Co. v. FCC, supra note 56, 124 U.S.App.D.C. at 125-126, 362 F.2d at 955-956, quoted in text supra at note 57.
Reference
- Full Case Name
- INDIANA BROADCASTING CORPORATION (WANE-TV) v. FEDERAL COMMUNICATIONS COMMISSION, and United States of America, G T & E Communications Inc., Intervenor INDIANA BROADCASTING CORPORATION (WANE-TV) v. FEDERAL COMMUNICATIONS COMMISSION, and United States of America, Shardco Cablevision, Inc., Intervenor
- Cited By
- 1 case
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- Published