Document ID: A:\CARTER.TXT CARTER MOUNTAIN TRANSMISSION CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. Joseph P. Ernst and Mildred V. Ernst d/b as Chief Washakie TV, Intervenor No. 17089 UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT 321 F.2d 359 March 8, 1963, Argued May 23, 1963, Decided COUNSEL: Mr. E. Stratford Smith, Washington, D.C., with whom Mr. Robert E. Conn, Washington D.C. Mr. Daniel R. Ohlbaum, Assoc. Gen. Counsel, Federal Communications Commission, with who Mr. Vernon L. Wilkinson, Washington, D.C., with whom Mr. James A. McKenna, Jr., Washing Mr. Robert D. L'Heureux, Washington, D.C., filed a brief on behalf of National Communit Mr. Robert V. Cahill, Washington, D.C., filed a brief on behalf of National Association JUDGES: Before BAZELON, Chief Judge, and WILBUR K. MILLER and WASHINGTON, Circuit Judges. OPINIONBY: WASHINGTON OPINION: [*361] This is a telecommunications case, in which a challenge is made to the power of the Fed proposed grant upon an existing television station. Carter Mountain Transmission Corporation, appellant here, is a common carrier by radio. ions located in several distant cities -- to community antenna systems established in the ton, Wyoming, now an intervenor in this appeal. The Commission caused a hearing to be hel al followed. n2 The Commission concluded that it would not serve the public interest, convenience, and ems on the basis proposed would result in the 'demise' of the local television station (in (or were unable) to pay the cost of subscribing to the community antenna systems; and tha a systems. The Commission, however, expressly gave appellant leave to refile its applicat The parties have agreed on six questions for out consideration. We will take them up se [*362] '1. Whether the Commission's denial of Appellant's application is based upon Appellant's argument on this point is in essence that the Commission was required to ap nvenience and necessity authorizing construction of the requested common carrier facilitie Commerce Commission,' n3 and a number of decisions of the Interstate Commerce Commission a tion because of economic impact upon the competitors of the carrier's proposed customer. n We do not think the Communications Commission applied incorrect legal principles in re vance here. Questions of competitive injury in the transportation field are very different carriers by radio but broadcasters of television programs. It cannot let its decisions i all the people of the United States,' adequate and efficient service. See Section 1 of th ponte: it must first obtain a certificate or license from the Commission, authorizing it t onvenience and necessity.' See 47 U.S.C. @ 214(a), (c) and (d) (1958). The interest of t 97, 87 L.Ed. 1344 (1943); Federal Radio Commission v. Nelson Brothers Bond & Mortgage Co., eighing the public interest.' Federal Communications Commission v. RCA Communications, Inc . Relevant, too, is the congressional mandate that the Commission 'make such distributio * service to each of the same.' Section 307(b) of the Communications Act, 47 U.S.C. @ 30 frequency or channel, the Commission may weigh the net effect on the community or communit 100 L.Ed. 869 (1956); cf. Federal Communications Commission v. Allentown Broadcasting Co., interest the Commission was entitled -- if indeed it was not obliged -- to consider the ing local stations. Cf. Federal Power Commission v. Transcontinental Gas Pipe Line Corp., '2. Whether the Commission's denial is an arbitrary and capricious denial of access t This question must be answered in the negative. There is no basis for the view that ap e appellant obtains a license from the Federal Communications Commission under the standar ditional reasons to be stated later. '3. Whether the Commission's denial for the reasons indicated constitutes an extensio Appellant points out that the Commission has no direct jurisdiction or authority over c o regulate Western, the community antenna proprietor, without legal authority, when it inc ely avoided and a satisfactory arrangement is arrived at by which the cable system will ca We cannot agree that this amounts to an attempt to regulate Western's antenna system, e rated its denial of that application by granting appellant the opportunity to show that th o Western's subscribers. To be sure, appellant would have to secure the cooperation of We onstruct facilities from which Western would presumably benefit. The Commission deemed ad ppellant the opportunity to secure what it was seeking if it protected the public interest '4. Whether the Commission's denial constitutes unlawful or unconstitutional censorsh Appellant urges that the First Amendment guarantees to Western the use of all possible n against censorship contained in Section 326 of the Communications Act of 1934, as amende We do not consider that the Commission has violated either the constitutional or the st which the Commission, applying proper principles under the law, has denied. We cannot hold n not available to the appellant. It may be assumed that any denial of a license to transmit radio or television program every license which is requested. Nor does it mean that the whole statutory system of re s not been met, is not a denial of free speech. See National Broadcasting Co. v. United S The Commission's offer to reconsider appellant's application if it shows that Western ion for the local station and the public interest. The protection of the public interest d ). See also KFKB Broadcasting Ass'n v. Federal Radio Commission, 60 App.D.C. 79, 47 F.2d 6 '5. Whether the Commission made adequate findings explaining why the denial of a comm ns, particularly in view of the Commission's contrary holdings in this regard.' Appellant's argument on this point is that prior to its decision in the instant case, ' s prevent an indirect economic impact upon a broadcast station.' Appellant says that this 631, reversed on other grounds, 329 U.S. 223, 67 S.Ct. 213, 91 L.Ed. 204 (1946). Assuming as appears elsewhere in this opinion, and we cannot say that the decision results in unfai [*365] '6. Whether the Commission's conclusion that a grant of Appellant's applicat Appellant's principal contention in this regard is that the record does not show, and t the decisive factor in the predicted demise of the (local) station.' Although matters of this sort are difficult of appraisal, we think the record amply sup that station since its inception in December 1957 has been operating in the 'red,' but in mproving financial outlook is attributable to several factors: the better picture offered ease in the number of subscribers to the CATV cable in part of the area served by KWRB-TV; ot made, in place of syndicated film purchases; and primarily its increasing sales of loca If appellant's application were granted, the service which could be offered by the West of the subscribers would view only the stations on the CATV cable. The conclusion is cer ntial shift in listener-viewer reception, and its survival would be seriously jeopardized. The local station of course has already been licensed, and its overall programming has s with which it is affiliated permit it to carry their entire programs, but to delete the programs of this type would be available to residents of at least half of the area served areas. Out of a total population of 73,966 persons (by the 1960 Advance Census Reports) i ny television service at all if the local station went out of business. n8 Moreover, in th ed, and thereafter would have television coverage available only if they subscribed [*36 warranted in imposing conditions, designed to protect that station, for the reconsiderati The Commission's order will be Affirmed. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1. Community antenna systems (CATV) 'amplify and distribute television signals of good a at a favorable location, such as a high hill or a mountain. The antenna picks up a stea ribers are connected to the cable, and relay amplifiers are located throughout the system n. 16, 225 F.2d 511, 517 n. 16 (1955). See also Lilly v. United States, 238 F.2d 584, 586 n2. Under Section 402(b)(1) of the Communications Act of 1934, as amended, 66 Stat. 718 n3. Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470 at 4 n4. Ozark and P.V.R. Co. Construction, 166 I.C.C. 441 (1930); Seaboard A.L. Ry. Co. Rec n5. We note that, even so, the Interstate Commerce Commission is obliged to give weight 73, 377, 62 S.Ct. 717, 720, 86 L.Ed. 904 (1942). n6. In the Transcontinental case, the Federal Power Commission denied an application fo preme Court approved the denial, saying that the Federal Power Commission is authorized to in determining the issue now presented, can consider the 'end use' or 'end result' of the n7. The owners apparently have not yet received salaries or other distributions from th n8. In two towns of less than 2,500 persons each, having a combined population of 3,605 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -