255 F.2d 898
103 U.S.App.D.C. 146
David E. MACKEY, Petitioner,
UNITED STATES of America and Federal Communications
National Broadcasting Company, Inc., Intervenor.
United States Court of Appeals District of Columbia Circuit.
Argued May 5, 1958.
Decided May 22, 1958.
Mr. Theodore Baron, Washington, D.C., of the Bar of the Supreme Court of Missouri, pro hac vice, by special leave of Court, for petitioner. Mr. Arthur W. Scharfeld, Washington, D.C., on the brief.
Mr. James T. Brennan, Counsel, Federal Communications Commission, Washington, D.C., with whom Messrs. Edgar W. Holtz, Acting General Counsel, Federal Communications Commission, Richard A. Solomon, Asst. General Counsel, Federal Communications Commission, and Daniel M. Friedman, Attorney, Department of Justice, Washington, D.C., were on the brief, for respondents.
Mr. Warren E. Baker, General Counsel, Federal Communications Commission, Washington, D.C., also entered an appearance for respondent Federal Communications Commission.
Mr. James E. Greeley, Washington, D.C., with whom Messrs. Richard N. Beaty, Port Chester, N.Y., and Lawrence W. Keepnews, No. Pelham, N.Y., were on the brief, for intervenor.
Before WILBUR K. MILLER, BAZELON and DANAHER, Circuit Judges.
David E. Mackey, permittee of UHF Station WOCN in Atlantic City, New Jersey, petitions for review of an order of the Federal Communications Commission which denied his request for rule making to amend the table of television channel assignments contained in 3.606(b) of the Rules and Regulations by shifting Channel 3 from Philadelphia, Pennsylvania, to Atlantic City, thus making a VHF station available to the latter. He says the Commission acted arbitrarily and capriciously, and violated 303(f), 303(r) and 307(b) of the Communications Act of 1934 as amended, 47 U.S.C.A. 303(f, r), 307(b), 4(d) and 6(d) of the Administrative Procedure Act, 5 U.S.C.A. 1003(d), 1005(d), and Commission Rules 1.701, 1.702 and 1.729.
We hold the Commission acted within its discretion. Coastal Bend Television Co. v. Federal Communications Commission, 1956, 98 U.S.App.D.C. 251, 255, 234 F.2d 686, 690.