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New Jersey Coalition for Fair Broadcasting v. Federal Communications Commission and United States

filed: March 22, 1978.

THE NEW JERSEY COALITION FOR FAIR BROADCASTING, PETITIONER,
v.
FEDERAL COMMUNICATIONS COMMISSION AND THE UNITED STATES, RESPONDENTS, WPIX, INC., METROMEDIA, INC., WESTINGHOUSE BROADCASTING COMPANY, INC., NATIONAL BROADCASTING COMPANY, INC., CBS INC., CAPITAL CITIES COMMUNICATIONS, INC., KAISER BROADCASTING COMPANY, RKO GENERAL, INC., EDUCATIONAL BROADCASTING CORPORATION, AMERICAN BROADCASTING COMPANIES, INC., ETHAN ALLEN HITCHCOCK, ESQUIRE, CHAIRMAN OF THE BOARD OF EDUCATIONAL BROADCASTING CORPORATION, BRENDAN BYRNE, GOVERNOR OF THE STATE OF NEW JERSEY, INTERVENORS



Petition for Review of Orders of the Federal Communications Commission FCC No. 20350, RM-2345.

Aldisert and Hunter, Circuit Judges and Huyett, District Judge.*fn*

Author: Hunter

HUNTER, Circuit Judge:

This appeal comes to us upon a petition by the New Jersey Coalition for Fair Broadcasting (Coalition) for review of orders of the Federal Communications Commission which terminated an inquiry into the adequacy of television service in the state of New Jersey. We have jurisdiction under section 402(a) of the Communications Act of 1934, 47 U.S.C. § 402(a) (1970), and 28 U.S.C. § 2342(1) (Supp. V. 1975). Since we find that the Commission's actions accorded with applicable statutory law, were neither arbitrary nor capricious, and do not constitute an abuse of discretion, we deny the petition for review.

I

The New Jersey Coalition for Fair Broadcasting*fn1 filed a "Petition for Inquiry Into the Need for Adequate Television Service for the State of New Jersey" with the Federal Communications Commission on March 4, 1974. In the petition the Coalition argued that the allocation of television channels among New Jersey and its neighboring states was inequitable and violated the statutory mandate of section 307(b) of the Communications Act of 1934 (as amended), which requires a "fair, efficient and equitable distribution of radio service" among states and communities.*fn2 The Coalition requested Commission rulemaking to remedy the deficiencies in service to New Jersey.

At present, the FCC allocates one VHF channel and fourteen UHF channels to New Jersey. The one VHF channel, Channel 13, although still formally licensed in Newark, N.J., has moved its operations to New York City and has become a non-commercial station. NTA Television Broadcasting Corp., 44 F.C.C. 2563 (1961). Of the fourteen UHF channels, only nine are now used. Five are commercial stations, and four are non-commercial stations operated by the New Jersey Public Broadcasting Authority.*fn3 The primary television service in New Jersey, particularly for VHF programming, comes from the several stations licensed in New York City and Philadelphia.*fn4

The Coalition contended in its petition that although New Jersey constitutes an important and self-contained commercial, political, and cultural community, its residents receive inadequate television service. The inadequacy, it was argued, results from the lack of VHF channels operating in the state and the failure of the New Jersey UHF channels and of stations operating in the neighboring states to serve as substitutes for local VHF service. The Coalition stressed its evidence of the failure of New Jersey residents to receive adequate local news and public affairs programming.

To remedy this problem, the Coalition offered three suggestions. First, it urged the FCC to assign one or more "short-spaced" commercial VHF channels to the state. Second, it suggested the reassignment of a New York or Philadelphia VHF channel to the state. This request later became refined to the relocation of Channel 7, which is currently used by WABC in New York City, to Freehold, N.J. Third, the FCC was asked to force the "dual-licensing" or "hyphenation" of one or more out-of-state VHF stations to include a New Jersey community.*fn5 All remedies emphasized the need for a local, commercial VHF station in the state.

On February 6, 1975, the Commission granted the Coalition's petition and issued a Notice of Inquiry and Notice of Proposed Rulemaking, 40 Fed. Reg. 6513 (1975). The notice invited comment on the Coalition's proposals.

After eight months, the FCC issued its First Report and Order and Further Notice of Proposed Rulemaking, 58 F.C.C.2d 790 (1976) [First Report]. This report concluded that the Commission's table of television allocations did not, as was alleged by the Coalition, violate the requirements of equitable distribution in section 307(b) of the Communications Act. In reaching its conclusion, the FCC relied on the presence of UHF channels in the state and the service provided by the several stations licensed in other states. The Commission noted that some 37 Grade B or better signals penetrated the state, and that in most areas New Jersey residents could receive 15 or more signals without cable service.*fn6

Beyond the statutory requirements of section 307, however, the FCC made a discretionary finding in the First Report that New Jersey was in need of additional television coverage, particularly with respect to local news and public affairs. The Commission concluded that additional comments would be needed before it could make a rule prescribing the precise remedy for the problem. The First Report therefore invited further comment on what facilities out-of-state television stations might be required to place in New Jersey, and on what other steps would constitute an effective "physical presence." Although the establishment of permanent television studios in the state was mentioned, the FCC also inquired what alternative measures might remedy the inadequacies in service. It emphasized that in determining the appropriate remedy, it would

seek to avoid, to every extent possible, (1) the dislocation and loss of television service, (2) the creation of unmanageable burdens on licensees, (3) the intrusion into programming decisions, and (4) the establishment of a body of precedent having untoward effects on future Commission regulation and licensing of television stations. 58 F.C.C.2d at 799-800.

The First Report also addressed the specific proposals made by the Coalition. During the comment period following the notice of rulemaking, the Coalition had abandoned its proposal for an additional "short-spaced" television station in New Jersey as technically infeasible. The Commission agreed with this assessment. The FCC also rejected the proposed relocation of VHF Channel 7 to Freehold, N.J. It found that, given the financial and other uncertainties surrounding the use of the channel by a New Jersey station, there was a low likelihood that the station would be successful in actually improving the local news and public affairs coverage in the state. On balance this low probability of improvement did not outweigh the several factors disfavoring ...


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