374 F.2d 311
126 U.S.App.D.C. 97
BOOTH AMERICAN COMPANY, Appellant,
FEDERAL COMMUNICATIONS COMMISSION, Appellee.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 10, 1967.
Decided Jan. 26, 1967, Petition for Rehearing before the
Division Denied Feb. 15, 1967, Petition for
Rehearing En Banc Denied March 2, 1967.
Mr. Paul Dobin, Washington, D.C., with whom Messrs. Marcus Cohn and Ronald A. Siegel, Washington, D.C., were on the brief, for appellant.
Mr. Daniel R. Ohlbaum, Deputy Gen. Counsel, F.C.C., whth whom Messrs. Henry Geller, Gen. Counsel, John H. Conlin, Associate Gen. Counsel, Robert D. Hadl and Stuart F. Feldstein, Counsel, F.C.C., were on the brief, for appellee. Mrs. Lenore G. Ehrig and Mr. William L. Fishman, Counsel, F.C.C., also entered appearances for appellee.
Before EDGERTON, Senior Circuit Judge, and FAHY and WRIGHT, Circuit judges.
The Commission by a decision released July 18, 1966, ordered appellant to cease and desist operating its community antenna television systems at North Muskegon and Muskegon, Michigan, 'in such a way as to extend the signals of any television broadcast station beyond its Grade B contour in violation of Section 74-1107 of the Commission's Rules, and specifically to cease and desist from supplying to its subscribers the signals of television stations WTMJ-TV, WITI-TV, WMVS, and WISN-TV, Milwaukee, Wisconsin; and WMAQ-TV, Chicago, Illinois.' Booth American Co., 4 F.C.C.2d 509, 518. The Commission granted appellant time to appeal and to seek a stay of its order. Appeal was taken, and this court granted appellant a stay pending the appeal.
Appellant contends that the Commission's order is invalid because (1) appellant began operations on March 4, 1966, in reliance upon the public notice of the Commission issued February 15, 1966, which announced that rules applicable to CATV operations would be forthcoming, and which appellant alleges was so worded as to lead it to believe its operations would not be within the ambit of the rules, which were thereafter released March 8, 1966; and (2) even if wrong about the foregoing, the circumstances of appellant's case, advanced as equitable considerations, and our decision in C.J. Community Services, Inc. v. FCC, 100 U.S.App.D.C. 379, 246 F.2d 660, entitled appellant to a hearing on its request that Section 74.1107 of the Commission's rules1 be waived notwithstanding the Commission's insistence that appellant's violations be discontinued before such a hearing.
The issues presented to this court by appellant were carefully considered and decided by the Commission in its decision of July 18, 1966. We are of the opinion, for the reasons there set forth on these issues, that the order of the Commission is valid. We accordingly affirm it and dissolve the stay heretofore entered by this court.
It is so ordered.
31 Fed.Reg. 4572