Atlas Broadcasting Company, Appellant, v. Federal Communications Commission, Appellee, 295 F.2d 183 (D.C. Cir. 1961)

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U.S. Court of Appeals for the District of Columbia Circuit - 295 F.2d 183 (D.C. Cir. 1961) Argued September 25, 1961
Decided October 6, 1961

Mr. Mark E. Fields, Washington, D. C., with whom Mr. Samuel Miller, Washington, D. C., was on the brief, for appellant.

Mrs. Ruth V. Reel, Counsel, Federal Communications Commission, Washington, D. C., with whom Messrs. Max D. Paglin, Gen. Counsel, Federal Communications Commission, and Daniel R. Ohlbaum, Asst. Gen. Counsel, Federal Communications Commission, Washington, D. C., were on the brief, for appellee.

Before FAHY, BASTIAN and BURGER, Circuit Judges.

PER CURIAM.

The appeal is from a decision and order of the Federal Communications Commission denying the application of standard broadcast station WMAX, Grand Rapids, Michigan,¹ for authority to increase its operating power from 1 kilowatt to 5 kilowatts. The order denying rehearing is also included in the appeal.

There is no contention the issues designated for hearing on the application were not adequate, or that the hearing and resulting findings of the Hearing Examiner, adopted by the Commission in its decision and order, were not factually supported by the evidence, or that any procedural defects afflict the hearing or other proceedings leading to the decision and order. The complaint is that the conclusion of the Commission, like that of the Examiner, was so unreasonable that we should set it aside. The Commission found that the appellant had failed to demonstrate a need for its proposed new service² which would outweigh the loss of service caused to station WIOS by the resulting interference. Accordingly, the Commission concluded that the proposed application for service was not in the public interest and therefore should be denied. We think the Commission's conclusion was within the discretion available to it under the standards applicable to judicial views.

As to the refusal of the Commission to defer action on appellant's petition for rehearing pending disposition of the WIOS application for a change of frequency, this also was within the permissible range of the Commission's discretion. See Greenwich Broadcasting Corp. v. Federal Communications Comm., 111 U.S.App.D.C. ___, 294 F.2d 913.

Affirmed.

Appellant, Atlas Broadcasting Company, became the licensee of station WMAX on October 24, 1960, pursuant to Commission approval of the assignment of the license from WMAX, Inc

47 C.F.R. § 3.24(b) (Supp.1961)

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