Before EDGERTON, Chief Judge, and BAZELON and FAHY, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
Spartanburg, South Carolina, Intervenor. Wilton
Nos. 13231, 14018, 14087. 1958.CDC.83
Date Decided: May 22, 1958.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
This appeal brings to us for the third time the controversy concerning the Federal Communications Commission's grant to Spartan Radiocasting Company of a modification of its television construction permit. On September 6, 1956, we set aside a Commission order affirming that grant. *fn1 On the basis of the Commission's findings, we held that (1) the modification resulted in "a curtailment of service to the Spartanburg area which, unless outweighed by other factors, is not in the public interest," 99 U.S.App.D.C. at page 96, 237 F.2d at page 577; and (2) Spartan "misrepresented material facts concerning its proposal," which "misrepresentation was calculated, deliberate and not insignificant." Ibid. We added:
"But we have no way of determining from the record whether service curtailment may be outweighed by other factors pointing toward, rather than away from, public interest. *fn2 As we have said, such a question is for the Commission's consideration, as is also the question whether intervenor's misrepresentation so far deprives it of reliability as to disqualify it as a licensee. For consideration of those questions, the case is remanded to the Commission." 99 U.S.App.D.C. at pages 96-97, 237 F.2d at pages 577-578.
On July 18, 1957, the Commission, after reconsideration of the case on remand, reaffirmed its grant of the modification permit. From that action the present appeal is taken.
The Service Curtailment Question
The first factor found by the Commission to outweigh the curtailment of service resulting from the modification was that the availability of a network affiliation at the new location assured the community that Spartan would actually commence operation. The Commission referred to the ...