WHB BROADCASTING CO. v. FEDERAL RADIO COMMISSION

WHB BROADCASTING CO. v. FEDERAL RADIO COMMISSION. No. 5416. Court of Appeals of the District of Columbia. Argued Jan. 4, 1932. Decided Feb. 1, 1932. John M. Littlepage and Thomas P. Littlepage, both of Washington, D. C., for appellant. D. M. Patrick, of Indianapolis, Ind., for appellee. Before ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices. [MAJORITY — ROBB, Associate Justice.] ROBB, Associate Justice. Appeal from a decision of the Federal Radio.Commission denying the application of the WHB Broadcasting Company for a power increase from 500 watts to 1,000 watts, daytime operation, for its broadcasting station, WHB, Kansas City, Mo. Testimony was taken by an examiner appointed by the Commission, and he, after a review of the facts, recommended that the application be denied. Exceptions were filed to the examiner’s report, and a hearing was had before the commission. After a review of the facts, the Commission found that, while the applicant station is rendering good radio broadcasting service, it does not appear that the assignment of additional power for daytime operation will enable it to render a materially better service; (2) that Kansas City and the surrounding area now receives good radio broadcasting service from a number of local and nearby stations, including a program somewhat similar in type to that offered by the applicant;. (3) that the granting of the application would work a violation of section 9 of the Radio Act of 1927 (44 Stat. 1162, 1166), as amended by section 5 of the Act of March 28, 1928, c. 263, 45 Stat. 373 (the Davis Amendment), U. S. C. Supp. V, tit. 47, § 89 (47 USCA § 89), in that-there would result an increase in radio broadcasting facilities in a state and zone now enjoying more than their share of such facilities. The state of Missouri is in the fourth zone, and the record discloses that that zone is overquota to the extent of 16.60 units, and that the state of Missouri is overquota within the zone to the extent of 1.28 units. Under the so-called Davis Amendment [45 Stat. 373), the Commission must consider the public interest, convenience, or necessity of the radio service of the entire country. That amendment requires the Commission, so far as possible, to establish and maintain an equality of radio broadcasting service among the different zones and among the states within those zones, according to population. Durham Life Insurance Co. v. Fed. Radio Commission (decided December 21, 1931) 60 App. D. C. 375, 55 F.(2d) 537. It is apparent, therefore, that, as found by the Commission, the granting of appellant’s application would work a violation of the so-called Davis Amendment. The findings and conclusions of the Commission were neither arbitrary nor capricious. The decision is affirmed. Affirmed.