Brown Telecasters, Inc. v. Federal Communications Commission, Television Broadcasters, Inc., Intervenor , 289 F.2d 868 ( 1961 )

WASHINGTON, Circuit Judge.

This case arises upon an appeal from an order of the Federal Communications Commission awarding a construction permit for a commercial VHF television station on Channel 12 in Beaumont, Texas, to Television Broadcasters, Inc., and denying the mutually exclusive application of Brown Telecasters, Inc., appellant here.

The main issue argued to us relates to the location of the studio of the successful applicant. Section 3.613(a)¹ of the Rules of the Federal Communications Commission provides, in part, “The main studio of a television broadcast station shall be located in the principal community to be served.” Subsection (b) permits waiver of this requirement upon a showing of “good cause.” In its original application, Television Broadcasters, the successful applicant, proposed a studio site not within the city limits of Beaumont, the principal city to be served. The Commission found that “good cause exists for waiver of the Rule, and that of threshold disqualification, is entitled to comparative . consideration”. After weighing the evidence before it, the Commission entered an order awarding the Television Broadcasters, despite urging permit to Television Broadcasters.

Appellant thereupon petitioned the Commission for reconsideration and rehearing. By attached exhibits appellant sought to establish that the studio site proposed by Television Broadcasters was not available to it and that Television Broadcasters had been guilty of misrepresenting to the Commission that the site was available, knowing that in fact it was not. An affidavit attached to the opposition to appellant’s petition admitted that the originally proposed site had been destroyed, and was no longer owned by Television Broadcasters. It added that it was not Television Broadcasters’ intention at that time to repurchase the old site, in view of the high price being asked by the new owner. Instead, the reply stated, Television Broadcasters would apply for a modification of its construction permit to specify a new site within the city limits of Beaumont. The Commission, in its opinion reaffirming the grant, alluded to the proposed modification, indicated its reliance upon it, and stated that an application designating a new site within the city would be favorably treated.² Subsequently, such an application was made and granted. In the meantime, appellant had taken this appeal.

Appellant’s principal contention here is that the Commission’s finding that “good cause” existed to warrant waiving compliance with the “studio rule” on Televison Broadcasters’ original application is unsupported and, in fact, contradicted by the record. A remand is sought, directing the Commission to make findings with respect to the allegations set forth in appellant’s petition for reconsideration.

While there exists the possibility that the Commission erred in granting the waiver here at issue, it appears to us that appellant has not suffered such prejudice as would entitle it to relief. Section 10(e) of the Administrative Procedure Act, 5 U.S.C.A. § 1009(e), requires a reviewing court to take “due account * * * of the rule of prejudicial error.”³ Brown’s conduct in the proceedings below negates its present claim of prejudice. As early as November 1, 1957, Television Broadcasters petitioned for leave to amend its application to specify a different studio site within the city limits of Beaumont. Although Television Broadcasters expressly disclaimed any intent to seek a preference on the basis of the change, Brown opposed the petition. At the hearing on the proposed amendment, on December 16, 1957, counsel for Television Broadcasters stated that the change “was occasioned principally by the fact that a creditor of Television Broadcasters began proceedings to have the site which Television Broadcasters owned outside of [Beaumont] * * * seized and sold in satisfaction of a debt. * * * And it so happened that, about October 1, about a month before the amendment was finally filed, some space became available in a building owned by Mr. Reed, and it was to that building which the studio site was changed.” The request to move the studio was ultimately denied by the examiner.

Subsequently, in the course of a prehearing conference held on March 3, 1958, the Hearing Officer ruled, without •objection from Brown: “There is no legal question of availability. There has been a lot of talk in prehearing and in the hearing as to the [sheriff’s] sale and so on, but it would have to be ignored, because it is not evidence. So far as I am concerned, you [Television Broadcasters] still have your old site.”

Oral argument upon exceptions to the initial decision of the Hearing Examiner in favor of Brown was had before the Commission on July 10,1959. The action of the Examiner in holding improper the waiver of the “studio rule” was defended by counsel for Brown, not upon the ground that Television Broadcasters’ proposed site was unavailable, but solely upon the ground that it was unsatisfactory : “ * * * the only evidence in the record about this studio is that it is unsatisfactory.” It was only after the Hearing Examiner had been reversed on the acceptability of the site by the Commission, that Brown first asserted its unavailability, some two years after the matter had been raised in the proceedings. Brown’s continued acquiescence in the understanding that the initial studio would be treated as available is palpably inconsistent with any notion of prejudice, in view of what the record shows it must have known.

It is conceded that Television Broadcasters received no comparative advantage because of its original studio proposal; the Commission described it as a “comparative deficiency which was overcome by the over-all merit of its application.” (Emphasis supplied.) Nor do we find any public injury present here, especially in view of the fact that Television Broadcasters has secured Commission approval of a new studio site within the city limits, for which a waiver of the “studio rule” is unnecessary. This court may not properly remand a case to the Commission when no public end can be served thereby. “The Communications Act of 1934 did not create new private rights. The purpose of the Act was to protect the public interest in communications. By § 402(b) (2) Congress gave the right of appeal to persons ‘aggrieved or whose interests are adversely affected’ by Commission action. 48 Stat. 1064, 1093. But these private litigants have standing only as representatives of the public interest. Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 477 [642, 60 S.Ct. 693, [698] 84 L. Ed. 869, 1037].” Scripps-Howard Radio, Inc. v. Federal Communications Commission, 1942, 316 U.S. 4, 14, 62 S.Ct. 875, 882, 86 L.Ed. 1229. We find nothing in the language of the Act which would provide a different standard for appeals grounded, as this one is, upon Section 402(b) (l).⁴ Accordingly, we are of the view that we may not disturb the Commission’s determination of the “studio issue,” since the.propriety of that decision is not properly before us.

Appellant also attacks as arbitrary and without foundation the Commission’s comparative determination in favor of Television Broadcasters. We are of the opinion that this decision has ample support in the record and must be sustained. In particular, the implications to be drawn from the conduct of Television Broadcasters’ UHF operation, and the comparative experience of the applicants, are, we believe, matters peculiarly within the province of the Commission. We find no evidence of such administrative arbitrariness as would warrant judicial intrusion.

A further point raised by appellant is that the Commission erred in failing to find that Television Broadcasters had been guilty of misrepresentations concerning its studio proposal. The Commission considered the evidence offered by appellant on this point and found the objection to be without merit. We agree. Affirmed.

1 . 47 C.F.R. § 3.613 (1958).

2 . The Commission added “In the event that future developments should prove this unwarranted, the Commission would, of course, re-evaluate the modified TB [Television Broadcasters] proposal.”

3 . To quote the Attorney General’s Manual on the Administrative Procedure Act (1947), at p. 110: “* * * errors which have no substantial bearing on the ultimate rights of the parties will be disregarded. Market Street Ry. v. [Railroad] Comm’n, 324 U.S. 548, 561— 2 [65 S.Ct. 770, 89 L.Ed. 1171] (1945).”

4 . 47 U.S.C.A. § 402(b) (1).