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06/10/65 George Dacre and Henry v. Federal Communications

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


June 10, 1965

GEORGE DACRE AND HENRY EDELSTEIN D/B/A ROCKLAND BROADCASTING COMPANY, APPELLANT

v.

FEDERAL COMMUNICATIONS COMMISSION, APPELLEE, ROCKLAND RADIO CORPORATION, INTERVENOR 1965.CDC.103

Bazelon, Chief Judge, and Burger and Wright, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petition for Rehearing Denied December 8, 1965.

APPELLATE PANEL:

PER CURIAM DECISION

Appellant applied to the Federal Communications Commission for a license to operate a Class III radio station located at Blauvelt, an amorphous community in Rockland County, New York. Intervenor and another subsequently requested similar, mutually exclusive facilities in nearby Spring Valley, New York. The Commission found that Spring Valley is the largest city in Rockland County and its commercial center and therefore has a greater need for a first local transmission service than Blauvelt. Relying on § 307(b) of the Federal Communications Act, 47 U.S.C. 307(b) (1952), the Commission excluded appellant from a comparison of the Spring Valley applicants, in which the intervenor prevailed. *fn1 Appellant argues that all applications were for facilities to serve the region of Rockland County rather than the designated station locations and that therefore appellant should have been considered with the Spring Valley applicants under the standard comparative issue. *fn2

The Commission's view of the case is consistent with the view it has usually applied to mutually excusive applications for different station locations serving the same region. Under this view the Commission determines the community to be served by an applicant solely according to the proposed station location. *fn3 It first selects that location with the greatest need for transmission service and then compares the abilities of only the applicants for that location. *fn4

In some recent cases, however, it has treated mutually exclusive applications for different station locations serving the same region as equivalent for § 307(b) purposes and therefore entitled to consideration on the basis of the standard comparative issue. *fn5 Although the Commission apparently finds merit in this approach to its difficult task of allocating facilities, it did not follow it here and offered only a meager explanation for adhering to its earlier view. *fn6

We do not reach the question whether the explanation is sufficient for review purposes, because we think affirmance may adequately rest on appellant's inaction after applications for Spring Valley appeared. It could readily have sought then to amend its application to provide principal-city service to Spring Valley or to obtain waiver of the Commission rules establishing requirements for principal-city service by promising to create some substantial connection with Spring Valley, such as an auxiliary studio. *fn7 We think its failure to do so could properly be taken as signifying a willingness to be treated as a Blauvelt application.

The orders of the Federal Communications Commission in granting intervenor's application and denying appellant's application and petitions for reconsideration are

Affirmed.

BURGER, Circuit Judge, concurs in the result.

CASE RESOLUTION

Affirmed.


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