PRETTYMAN, Circuit Judge.
This is a petition for review of an order of the Federal Communications Commission published September 18, 1952, and an order published November 5, 1952, which dismissed a petition for reconsideration. In connection with the latter order the Commission issued a careful memorandum opinion, in which it discussed the various problems now presented to us. We agree with that opinion, and it is unnecessary for us to enter upon an extended discussion.
As the television industry began to develop, the Commission determined that the public interest required it to adopt as a part of its Rules a table of nationwide assignments of the available television channels. In 1945 it adopted such a table. As the industry continued to develop, the Commission determined that a revision of that allocation table was necessary. It gave public notice of that intention and in 1951 issued a proposed new table. Thereafter, in April, 1952, it adopted the proposed new allocations. All this was pursuant to rule-making proceedings.
Originally Channel 4 was assigned to Lancaster, Pennsylvania, and in January, 1948, WGAL, Inc., intervenor in the case at bar, was licensed to operate there on that channel as a "community station". In its reexamination of the national allocation table the Commission determined that, due to the proximity of Lancaster to New York on the one hand and Washington on the other, the same channel could not be assigned to these three points. Channel 4 was left in Washington and New York but was eliminated from Lancaster, and Channel 8 was assigned to that city. At the time the new allocations were proposed, a rule was issued upon WGAL, Inc., requiring it to show cause why its license should not be modified so as to cause it to shift from Channel 4 to Channel 8. The license of WGAL, Inc., to operate on Channel 4 became subject to renewal on July 30, 1952. It was renewed subject to the show cause order.
In the meantime Peoples Broadcasting Company had, in May, 1950, filed an application for a television station at Lancaster. It originally requested Channel 9, but after various procedural movements and counter-movements it filed an amendment specifying Channel 8. In the orders which are before us the Commission, inter alia, set the application of Peoples Broadcasting Company for a license and the application of WGAL, Inc., for full authorization to operate on Channel 8 for a comparative hearing and authorized WGAL, Inc., to operate temporarily with minimum power on Channel 8.
We state briefly our views upon the problems presented. (1) The Commission had authority to adopt a nation-wide television allocation plan. The purposes of the creation of the Commission, as expressed by Congress,
(3) The temporary authorization at minimum power granted WGAL, Inc., pending the comparative hearing, was a practical solution of a problem which involved the public interest in the continuity and quality of television service. The Commission made an express finding that the temporary grant was in the public interest. Peoples says that this grant deprived it of a portion of its right to a hearing, guaranteed it by the statute as construed by the Ashbacker decision.
It is interesting to note that, in a proceeding under Section 309(c) upon a protest to a grant of an application, the automatic stay upon the effective date of of the grant is subject to an exception, the exception being that if an existing service is involved it shall continue pending the Commission's decision after hearing. This latter provision seems to indicate a congressional intention that existing services not be suspended pending hearings upon disputes, even though the hearings are given as of right. In the case at bar WGAL's operation on Channel 4 was the only existing service in Lancaster. Peoples does not contest the deletion of that channel from Lancaster. It appears, therefore, that the Commission's temporary authorization, designed to preserve the only existing service pending the hearing, was within the scheme of the statute, even though the channel being used in that sole service was, in the general public interest, changed. Moreover Peoples urges that the modification of the WGAL license from Channel 4 to Channel 8 should have been on an application filed under Section 308; but, if it had been, the temporary
The orders of the Commission are valid and will be