WITN-TV, Inc. v. Federal Communications Commission
Docket: No. 87-1390
Court: Court of Appeals for the D.C. Circuit; June 28, 1988; Federal Appellate Court
In August 1985, the FCC assigned VHF TV channel 8 to Morehead City, NC, despite objections from WITN-TV, Inc., which operates channel 7 in Washington, NC. WITN's subsequent petitions for reconsideration and FCC review were denied. WITN and Roy H. Park Broadcasting, Inc. challenged the assignment, arguing it would lead to a net loss of interference-free television service and contending that their objections warranted a hard look under public interest and waiver precedents. However, the court upheld the FCC’s decision, stating it adhered to the 1952 Table of Assignments method for channel allocation, designed to ensure fair and efficient distribution of television services across the U.S. The court noted that the waiver concept was not applicable since WITN's request effectively sought reconsideration of established policy rather than a valid waiver. The FCC's channel assignment priorities include ensuring at least one service for all areas and providing communities with multiple broadcast station options. The court affirmed the FCC's authority to implement these priorities, referencing previous decisions that supported the Table of Assignments method.
The FCC opted for minimum separation distances instead of “protected contours” to address interstation interference, establishing cochannel and adjacent channel separation requirements as the exclusive defense against such interference. Television broadcast station licensees are not shielded from interference caused by newly granted stations. In this case, WITN submitted an engineering study indicating a predicted loss of “interference-free” service if channel 8 were allocated to Morehead City, claiming that the number of viewers losing service would surpass those within the new station’s service area. WITN argued that this “net loss” contradicts the FCC’s duty to regulate in the public interest. Throughout the proceedings, the FCC maintained its commitment to the policies established in the Sixth Report, asserting that public interest is better served by its channel allocation procedures and minimum spacing requirements. The FCC rejected WITN’s public interest argument, emphasizing that it is not obliged to reassess rules upon each application. The Sixth Report aimed to balance the need for broad television service with the interests of smaller communities, and the FCC found no reason to revisit the established framework. Furthermore, the FCC had previously considered and dismissed concerns related to potential net service loss, reinforcing its stance that maximizing community access to local television was a priority.
WITN proposes that its opposition to the Morehead City assignment be interpreted as a request for a waiver of distance separation requirements. Citing WAIT Radio v. FCC, WITN asserts that the FCC must comprehensively evaluate the engineering data indicating that the assignment is not in the public interest. However, the FCC maintains that WITN's argument fundamentally challenges established policy choices from the Sixth Report. In WAIT, the court mandated the FCC to reconsider a waiver application for its clear channel rule, emphasizing that a general rule’s public interest might not apply to unique service proposals that do not undermine the rule’s objectives. In contrast, WITN's requested waiver would conflict with the FCC's established allocation policy in the Sixth Report. The FCC concluded that WITN's "net loss" argument essentially sought a reevaluation of these policy choices, leading to the rejection of its plea. The petition for review was denied. Under the FCC's demand method, applicants must demonstrate that their AM station will not cause or receive objectionable interference, defined by signal strength contours. WITN initially argued for channel 8's assignment to Norfolk, but later, after a change in ownership, presented new arguments. An engineering study indicates that 203,372 people within the Grade B contours of several stations would suffer service degradation from the Morehead City assignment, projecting a net loss of interference-free service to 60,345 viewers.
WITN asserts that assigning any of eighteen UHF stations to Morehead City would not result in a 'net loss' of service. However, the FCC counters that it has not received any expressions of interest in operating a UHF station, and its policy dictates that channels are not allocated without such interest, particularly since UHF channels do not serve as direct substitutes for VHF channels. This policy aligns with previous allocations as per the Sixth Report, which distributes both VHF and UHF channels to smaller communities. WITN's references to transmitter relocation cases, such as Hall v. FCC and Television Corp. of Mich. Inc. v. FCC, are deemed irrelevant by the FCC, as these cases focus on coverage gains and losses and do not address inter-station interference. WITN’s position is atypical; rather than seeking a waiver of FCC requirements, it aims to prevent an assignment that complies with existing regulations, arguing for stricter requirements than those typically applied.
