Judge Ponders TV Tower Action
Arguments in Mount Spokane Case Continued
Judge Ed B. Powell yesterday took his decision in the television tower case under advisement after hearing arguments for and against dismissal of the superior court complaint filed by Television Spokane, Inc. and Mr. and Mrs. Sidney Streeter.
In the action, the television firm and the Streeters have asked the court to enjoin KXLY-TV from going ahead with tower construction on Mount Spokane. They claim the State Park Commission, which is also a defendant, exceeded its authority in granting KXLY-TV a lease on Mount Spokane property which may run for 20 years.
The hearing on a defense demurrer was assigned to Judge Carl C. Quackenbush, who then disqualified himself, explaining that he had definite ideas on the situation. By stipulation of attorneys, Mr. Powell, Spokane attorney, was named judge pro tem to hear the arguments.
Clarence C. Dill, representing KXLY and E.P. Donnelly, Assistant State Attorney General representing the State Park Board, contended the board had not exceeded its authority, but, on the contrary, was following its duty to the greatest number of persons. Dill said it was properly called a Park and Recreation Board and was given broad powers by the legislature to promote the recreational interests of the people.
With a word of apology, Dill said that Benjamin H. Kizer, attorney for the plaintiffs, had the old concept of a park as a place where people brought their lunch. He contended that television would afford entertainment for many people who would never go to Mount Spokane Park and that only a small part of the area would be required for a television tower.
He said the State Park Board had gone to great pains to protect the state and other users of the park from any possible encroachment by the television development. The defense attorneys also argued that the mountaintop was already used for radio—by the State Highway Department now, and planned used by Bonneville Power Administration—and the introduction of television would not be a radical change.
Dill and Donnelly also argued that Television Spokane had no capacity to sue. To ask an injunction against the state, a private plaintiff must show special damages greater than damage suffered by the general public. Dill contended that Television Spokane in its complaint said it had selected a site on Brown’s Mountain as equal, if not superior, to other sites in the area for a television tower and has obtained an option from the owners, the Streeters. He argued that if Television Spokane regarded Brown’s Mountain as superior, he did not believe the firm would be damaged by use of Mount Spokane by someone else.
He referred to a statement in the complaint that the Brown’s Mountain tower would have been shared with other television firms to cut down costs. The same could be done with a tower on Mount Spokane, he said, saying that four or five transmitters use the same tower on top of the Empire State Building in New York.
Dill said that the Brown’s Mountain site was only about 2000 feet above the surrounding terrain, while the Mount Spokane site was 4,000 feet above the land around it. The greater clearance was necessary for successful television transmittal, he said.
Dill questioned right of Television Spokane to sue on another ground. He said the television corporation had no license as yet and that a competitor also sought the broadcasting rights whereas KXLY already had a license.
Kizer responded that the other attorneys seemed to regard the Park Board as a roving commission with the duty of promoting recreation all over the state. He contended that the commission was by law limited in its jurisdiction to land within park boundaries.
The state had entered into competition with the Streeters, whose land could not be used for any other commercial purposes than television, he indicated. Special damages had been demonstrated, he argued.
Judge Powell said that since the question was a new one involving some new angles of the law, he wished time to study citations. Dill said he believed it was the first case in the nation in which one television firm sought to stop another television firm from going ahead with its facilities.
Tuesday, November 18, 1952