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07/02/69 Jupiter Associates, Inc., v. Federal Communications

July 2, 1969

JUPITER ASSOCIATES, INC., APPELLANT

v.

FEDERAL COMMUNICATIONS COMMISSION, APPELLEE, RADIO ELIZABETH, INC., INTERVENOR 1969.CDC.212



Bazelon, Chief Judge, and Tamm and Robinson, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM

Three mutually exclusive applications were filed with the Federal Communications Commission in 1962 for new standard broadcast stations in the northeastern part of New Jersey. Each application proposed to operate on the frequency of 1530 kilohertz and consequently the applications were designated for a consolidated hearing. Following this hearing, in December, 1963, the trial examiner issued his Initial Decision, awarding the station to Radio Elizabeth rather than appellant or Somerset County Broadcasting Co. The unsuccessful applicants filed exceptions and the Commission's Review Board, after hearing oral argument, agreed with the trial examiner and ruled that Radio Elizabeth should be awarded the license. Applications for review by the Commission were then filed by appellant and Somerset.

While these applications for review were pending, this court issued its decision in Miners Broadcasting Service, Inc. v. FCC, 121 U.S.App.D.C. 222, 349 F.2d 199 (1965). The issuance of this decision spurred the Commission to issue on December 27, 1965, its Policy Statement on Section 307(b) Considerations for Standard Broadcast Facilities Involving Suburban Communities, 2 F.C.C.2d 190 (1965). Since both appellant's and Elizabeth's proposals placed 5 mv contours over a portion of New York City, the FCC remanded the case for further hearings in order to determine whether the Radio Elizabeth and Jupiter applications should be considered as applications for the central city (New York) rather than the suburb (Elizabeth or Matawan). *fn1 In addition, the Commission ordered that the issues to be resolved in this proceeding be enlarged to include the admission of evidence bearing on the considerations presented by the new 307(b) Policy Statement. Pursuant to the Commission's dictates further hearings were conducted in 1966 and 1967 and, upon conclusion, the hearing examiner issued a Supplemental Decision concluding that neither application should be considered as one for New York City and that Radio Elizabeth should be awarded the license. Upon appeal, the Commission's Review Board issued a Supplemental Decision reaffirming the grant to Radio Elizabeth. Jupiter filed an application for review by the Commission, en banc, but this was denied (App. 129). Following the denial of appeal, Jupiter brought this action in our court pursuant to Section 402(b) of the Communications Act of 1934, as amended, 47 U.S.C. § 402(b) (1964). *fn2 For the reasons hereinafter stated, we affirm the Commission's action. I

Prior to reaching a consideration of appellant's allegations of error it is necessary, as a background, to illustrate briefly the relevant merits of each applicant as a potential broadcast licensee. The Commission's powers and duties in this area have been delegated by Congress in Section 307(b) of the Communications Act of 1934, as amended, 47 U.S.C. § 307(b) (1964), as follows:

In considering applications for licenses . . . the Commission shall make such distribution of licenses . . . as to provide a fair, efficient, and equitable distribution of radio service . . ..

In carrying out its above-prescribed function the Commission in this case was confronted with at least two applicants *fn3 who were completely qualified in all respects to operate a broadcast facility. Due to the limited space available on the frequency spectrum, however, only one could be chosen.

Radio Elizabeth's application specifies that its station location will be the city of Elizabeth, New Jersey, which is part of the urbanized New York-Northeast New Jersey area and has a population of 107,698 (1960 Census). Elizabeth is the seat of Union County (pop. 504,255) and has been characterized as a heavily industrialized and commercialized area. At present it does not have an AM, FM, or television station. Its principal industries are sewing machines, pharmaceutical products, automotive, and gas and chemicals. These industries employ about 32,000 out of the total 137,837 employees who labor within the city limits of Elizabeth. Elizabeth has a police department (240 officers), a fire department (14 companies), three major hospitals, 62 churches, 30 civic and/or charitable organizations, and 9 major banks. There is, however, only one newspaper, the Elizabeth Daily Journal. The city is presently under the mayor form of government and the city government is comprised of numerous agencies, boards, departments and special organizations. The city is a seaport and it only recently completed construction of a 250 million dollar port project. Elizabeth is located approximately 14 miles from New York City and is the 130th largest city in the United States. Finally, it should be noted that only two cities in the country have populations larger than Elizabeth that do not also have standard broadcast stations.

By comparison, appellant's application specifies that its station location will be Matawan, New Jersey, which has been characterized as a "rural" area with a population of 5,097 (1960 Census). Matawan has no AM, FM, or television station at present. There are 158 business establishments located in Matawan and these are mainly retail and service organizations since the borough has no substantial amount of manufacturing. Matawan has two churches, a police department, five volunteer fire departments, a planning board, a first aid squad, and a public library. It has one weekly newspaper (Matawan Journal) and is governed by a council form of gevernment. In addition, it has a local court which handles traffic and other minor offenses. Matawan Borough consists of an area of approximately 2.5 square miles and is located approximately 4.2 miles from New York City (of which approximately three miles are over water). *fn4 The major highways serving Matawan are the Garden State Parkway and New Jersey Routes 18, 34, and 79. Finally, Matawan has a first class Post Office which has an annual revenue in excess of $150,000.

Detailed comparisons of the attributes of both cities are set out in the examiner's Initial Decision and his Supplemental Decision. Based upon these types of comparisons the examiner concluded that "the controlling factor here revolves around each respective community's need for transmission service . . . (and) while size cannot be construed necessarily as the dominant aspect, it certainly cannot be passed over lightly" (App. 23). The examiner went on to compare the two communities and concluded that the other comparisons were "overwhelmingly favorable to the City of Elizabeth" (App. 25). II

With this background in mind, we consider now appellant's contentions of error. Jupiter's appeal in this case presents myriad challenges to various aspects of the Commission's proceedings. Basically, all of appellant's arguments are procedural in nature and can be summarized into a claim that had the FCC examiner considered the proper factors and evidence during the hearings, the inescapable conclusion would be that Jupiter and not Radio Elizabeth should have been awarded the license. In essence, however, after the wheat is separated from the chaff, appellant's meritorious arguments are reduced to two. First, appellant claims that the Commission wrongfully determined and thereby limited the size of its community. We feel, however, that appellant's arguments on this score are unpersuasive.

Our starting point is Section 73.30(a) and (b) of the Commission's Rules, 47 C.F.R. § 73.30(a) and (b) (1968). This rule states in pertinent part:

(a) Except as provided in paragraph (b) of this section, each standard broadcast station will be licensed to serve primarily a particular city, or community which will ...


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