292 F2d 759 Warner v. Federal Communications Commission

292 F.2d 759

110 U.S.App.D.C. 266

Benjamin H. WARNER, Jr., Appellant,
Smith, Intervenor.

No. 15968.

United States Court of Appeals District of Columbia Circuit.

Argued May 5, 1961.
Decided 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.


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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).