Benjamin H. Warner, Jr., Appellant, v. Federal Communications Commission, Appellee,george W. Smith, Intervenor, 292 F.2d 759 (D.C. Cir. 1961)
Annotate this CaseDecided June 1, 1961
Mr. Howard J. Schellenberg, Jr., Washington, D. C., for appellant.
Mr. Edward W. Hautanen, Counsel, F. C. C., with whom Messrs. Max D. Paglin, Gen. Counsel, F. C. C., Daniel R. Ohlbaum, Asst. Gen. Counsel, F. C. C., and Mrs. Ruth V. Reel, Counsel, F. C. C., were on the brief, for appellee.
Mr. Seymour M. Chase, Washington, D. C., for intervenor.
Before EDGERTON, WASHINGTON and BURGER, Circuit Judges.
PER CURIAM.
Petitioner applied for a radio frequency for a one-way mobile paging service in Santa Ana, California. The examiner and the Commission agreed that the frequency should be awarded to intervenor, who offers lower rates and a system capable of serving a larger number of subscribers than petitioner's. We find the Commission's action consistent with its disposition of the Los Angeles phase of these proceedings, which we affirmed in McKean v. F. C. C., ___ U.S.App.D.C. ___, ___ F.2d ___. The availability of more than one frequency in Los Angeles justifies the Commission's view that system capacity was a factor of less significance in McKean than in the instant case, since only one frequency is allocated to Santa Ana. We have considered petitioner's other contentions, but we "cannot find that the Commission's decision was arbitrary, capricious or unsupported by substantial evidence." McClatchy Broadcasting Co. v. F. C. C., 99 U.S.App. D.C. 195, 199, 239 F.2d 15, 19 (1956), certiorari denied 353 U.S. 918, 77 S. Ct. 664, 1 L. Ed. 2d 665 (1957).
Affirmed.
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