Before BAZELON, Chief Judge, and WASHINGTON, and MCGOWAN, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1965.CDC.73
Anthony Television Corporation,
These are appeals from the grant of an application for modification of a television construction permit. The Federal Communications Commission assigned VHF Channel 11 to Houma, Louisiana, a city approximately sixty miles southeast of Baton Rouge, Louisiana. In the Matter of Amendment of Section 3.606, 15 Pike & Fischer R.R. 1603 (1957), 47 C.F.R. § 73.606(b) (1964). In 1958 the Federal Communications Commission issued to intervenor St. Anthony Television Corporation a construction permit for Channel 11, establishing a transmitter site nine miles from Houma. Because of engineering difficulties, St. Anthony did not build the station and in 1959 applied for a modification allowing it to build the transmitter forty-seven miles from Houma and eighteen miles from Baton Rouge. At about the same time, St. Anthony in rulemaking proceedings unsuccessfully sought a redesignation of Channel 11 as a Baton Rouge or Baton Rouge-Houma channel. See In the Matter of Assignment of an Additional VHF Channel to ... Baton Rouge, La., 25 Pike & Fischer R.R. 1687 (1963), reconsideration denied, 1 Pike & Fischer R.R.2d 1572 (1964); In the Matter of Amendment of Section 3.606, 18 Pike & Fischer R.R. 1666, 1670-1671 (1959).
Appellants, licensees of the two VHF channels presently assigned to Baton Rouge, opposed St. Anthony's application for modification of the construction permit. They argued that granting the application would be contrary to the public interest, convenience, and necessity and requested a hearing. The Commission granted St. Anthony's application without hearing, holding first, that no material issue of fact had been raised and, secondly, that the modification would be in the public interest because it would bring a third VHF service to Baton Rouge and would extend Channel 11 service to a greater number of people, despite the fact that it would violate established Commission policies.
If either holding is erroneous, the case must be reversed and remanded. Under § 309 of the Federal Communications Act1, the Commission may grant an application for modification without hearing only if it finds "(1) no material issue of fact, and (2) no reason why the grant would not serve the public interest, convenience and necessity." Hudson Valley Broadcasting Corp. v. Federal Communications Comm'n, 116 U.S.App.D.C. 1, 5, 320 F.2d 723, 727 (1963). (Emphasis supplied.) We find that both holdings are erroneous. However, since appellants may raise any disputed issues of fact2 on remand, we shall only outline the policy issues that the Commission should consider in deciding whether the modification would be in the public interest, convenience, and necessity.
Appellants raised five public interest issues which, according to Commission practice and this court's cases, should not ordinarily be decided summarily. When so many significant policy issues exist, it is plainly improper to grant an application without the full record of facts and adversary views a hearing would provide. The relevant issues are the following:
(1) Whether the public interest warrants a degradation of signal strength to Houma, including a degradation below the level required for principal-city service3
(2) Whether the public interest justifies a waiver of the required minimum co-channel mileage separation4
(3) Whether St. Anthony made the required efforts to determine the programming needs of its proposed new service area and whether its programming will fulfill the needs of its service area5
(4) Whether the proposed modification would constitute a de facto reallocation of Channel 11 to Baton Rouge6; and
(5) Whether providing Baton Rouge with a third VHF service would violate the Commission's policy of encouraging ...