Sponsor (Oct-Dec 1962)

WASHINGTON WEEK I What's happening in U.S. Government that affects sponsors, 15 OCTOBER 1962 / copyright 1962 II agencies, stations Suburban Broadcasters lost their bid for Supreme Court certiorari in their appeal against FCC denial of their application for an I'm station on the grounds no attempt had been made to ascertain community programing needs. Denial of certiorari does not amount to a Supreme Court precedent, but this will still be a landmark case in broadcasting. The application was for an fm outlet in Elizabeth, N. J. Metropolitan Broadcasting opposed on grounds of interference with WNEW-FM, New York. Later, Metropolitan also charged that Suburban's proposed programing was in fact identical with actual programing by the firm's Illinois and California fm's. FCC turned down Suburban purely on these grounds — that no effort had been made to find out what type of programing Elizabeth needs — setting up a perfect test case. Suburban argued that in cases where a facility is available and there is only one applicant, the outer limits of FCC power are to question whether the applicant's character is up to par, whether he has the necessary finances, etc. FCC argued it has a right to look into programing. The Appeals Court agreed with the FCC, and Suburban thereupon asked the Supreme Court to review that decision. If the Supreme Court had agreed to hear the case, if arguments had been held and decisions rendered, the precedent would have been clear-cut. Refusal to hear a case, as was done this time, merely means the lower court decision is permitted to stand. There is a further complication in that the Supreme Court doesn't explain why it refuses to disturb lower court decisions, and there can be many reasons. However, as a practical matter, those who contend the FCC has broad powers to set out programing standards will feel that this particular refusal of certiorari buttresses their case. There is no doubt that members of the FCC who feel this way will be much encouraged about their legal position. Coming at a time when the FCC appears to be trending toward more critical looks at programing when licenses are up for renewal, the Supreme Court refusal to hear this case probably means the FCC will get even tougher. The Supreme Court also dashed the hopes of opponents of subscription television: It refused certiorari to a group of theatre owners seeking review of the Appeals Court decision that the FCC was within its powers when it approved the RKO-General Hartford experiment. This again merely permits the Appeals Court verdict to stand, without constituting a Supreme Court expression on the subject. But it removes the last legal danger to the Hartford experiment, which is already under way. The motion picture people can ask for reconsideration as, indeed, Suburban Broadcasters also can do. However, this maneuver works so seldom that very often losing litigants don't even bother to try it. On the other hand, the Denver pay-tv trial just approved by the FCC could be in for a rougher legal experience. FCC approved without hearings, and the Appeals Court has slapped a good many cases back at the FCC because those on the losing side hadn't been given a chance to plead their cases. It was for this reason that the FCC had been expected to hold hearings before giving its approval to the Denver pay-tv trial. There was also a strong dissent in the Denver case by Commissioner Robert Bartley, who doubted that the applicant had proven financial ability to carry out the test. Bartley also noted that an intention to sell the station involved to Bill Daniels had been stated, and that CATV operator Daniels had a record of interests in construction permits for three TV stations which were never built. SPONSOR/15 October 1962 55