wirl-television-company-v-united-states-of-america-and-federal , 274 F.2d 83 ( 1959 )

274 F.2d 83

107 U.S.App.D.C. 21

WIRL TELEVISION COMPANY, Petitioner,
v.
UNITED STATES of America and Federal Communications
Commission, Respondents, Tele-Views News Co., American
Broadcasting-Paramount Theatres, Inc., Intervenors, Illiway
Television, Inc., Intervenor, Hilltop Broadcasting Co.,
Intervenor, WMBD, Inc., Intervenor, West Central
Broadcasting Co., Intervenor.
WIRL TELEVISION COMPANY, Appellant,
v.
FEDERAL COMMUNICATIONS COMMISSION, Appellee, WMBD, Inc.,
Intervenor, Tele-Views News Co., Intervenor, American
Broadcasting-Paramount Theatres, Inc., Intervenor, Hilltop
Broadcasting Company, Intervenor, Illiway Television, Inc.,
Intervenor, West Central Broadcasting Company, Intervenor (two cases).

Nos. 13768, 13769, 13912.

United States Court of Appeals District of Columbia Circuit.

Argued March 23, 1959.
Decided May 12, 1959, Motion for Reconsideration Denied June 19, 1959.

See 102 U.S.App.D.C. 341, 253 F.2d 863; 358 U.S. 51, 79 S.Ct. 94, 3 L.Ed.2d 47.

Mr. Timothy W. Swain, Peoria, Ill., with whom Messrs. Ben C. Fisher, Charles V. Wayland, Charles F. Duvall, John P. Southmayd and Richard Hildreth, Washington, D.C., were on the brief, for petitioner in No. 13,768 and appellant in No. 13,769 and No. 13,912.

Mr. Max D. Paglin, Asst. Gen. Counsel, F.C.C., for respondents in No. 13,768 and appellee in No. 13,769 and No. 13,912. Messrs. Richard A. Solomon, Asst. Gen. Counsel, F.C.C., at the time brief was filed, John J. O'Malley, Jr., Counsel, F.C.C., and Henry Geller, Atty., Dept. of Justice, were on the brief for respondents in No. 13,768 and appellee in No. 13,769 and No. 13,912. Mr. Edward W. Hautanen Counsel, F.C.C., also entered an appearance for respondents in No. 13,768 and appellee in No. 13,769 and No. 13,912. Mr. Daniel M. Friedman, Atty., Dept. of Justice, also entered an appearance for respondent United States of America, in No. 13,768.

Mr. Marcus Cohn, Washington, D.C., with whom Mr. Stanley S. Neustadt, Washington, D.C., was on the briefs, for intervenors Illiway Television, Inc., and Hilltop Broadcasting Co. Mr. Paul Dobin, Washington, D.C., also entered an appearance for intervenors Illiway Television, Inc., and Hilltop Broadcasting Co.

Mr. Harold D. Cohen, Washington, D.C., with whom Mr. W. Theodore Pierson, Washington, D.C., was on the brief, for intervenor WMBD, Inc., Messrs. Vernon C. Kohlhaas and Nad A. Peterson, Washington, D.C., also entered appearances for intervenor WMBD, Inc., in No. 13,768 and No. 13,769.

Mr. Jack P. Blume, with whom Mr. Peter Shuebruk, New York City, was on the brief, for intervenor West Central Broadcasting Co., Mr. Benito Gaguine, Washington, D.C., also entered an appearance for intervenor West Central Broadcasting Co.

Messrs. James A. McKenna, Jr,, and Vernon L. Wilkinson, Washington, D.C., were on the brief for intervenor American Broadcasting-Paramount Theatres, Inc., Messrs. James A. McKenna, Jr., and Vernon L. Wilkinson, Washington, D.C., also entered appearances for intervenor Tele-Views News Co.

Before PERTTYMAN, Chief Judge, and FAHY, and BURGER, Circuit Judges, in Chambers.

PER CURIAM.

Order

1

Upon consideration of this case on remand from the Supreme Court of the United States, and of the briefs and memoranda and oral argument of counsel, it appearing that No. 13,992, Sangamon Valley Television Corp. v. United States, 103 U.S.App.D.C. 113, 255 F.2d 191 (D.C.Cir., 1958), was remanded by the Supreme Court, 358 U.S. 49, 79 S.Ct. 94, 3 L.Ed.2d 47 (1958), for such action as this Court might deem appropriate in view of representations made by the Solicitor General concerning testimony given before the Subcommittee of Legislative Oversight of the House Committee on Interstate and Foreign Commerce subsequent to our decision; and it appearing that the case at bar was remanded because certain physical characteristics of the stations (and their operation) involved in the Sangamon case and those involved in the present case are such that the decision and order in the Sangamon case might affect the proper order to be entered by the Commission in the case at bar; and it appearing that this Court has on May 8, 1959 remanded the Sangamon case to the Commission for further proceedings in the light of the evidence to which reference was made by the Solicitor General and in the order of remand by the Supreme Court; Now, Therefore, It is

2

Ordered, That this case is remanded to the Federal Communications Commission for such proceedings, if any, as may be proper after and in view of the Commission's report and recommendation in the Sangamon case, jurisdiction of this case remaining in this Court;1 and it is

3

Further Ordered, That, after the Commission's report and recommendation in Sangamon and such further proceedings, if any, as shall then be proper in this case, the Commission shall report to this Court and recommend to this Court such disposition of these appeals and petition for review as seems to it necessary or desirable in view of its findings and proposed order in Sangamon.

1

Fleming v. F.C.C., 96 U.S.App.D.C. 223, 225 F.2d 523 (D.C.C.ir., 1955); WKAT, Inc. v. F.C.C., 103 U.S.App.D.C. 324, 258 F.2d 418 (D.C.Cir., 1958); Tuscarora Indian Nation v. F.P.C., 105 U.S.App.D.C. 146, 265 F.2d 338 (D.C.C.ir., 1958)