American Broadcasting Co. v. United States
Decision Date | 05 February 1953 |
Citation | 110 F. Supp. 374 |
Parties | AMERICAN BROADCASTING CO., Inc. v. UNITED STATES et al. NATIONAL BROADCASTING CO., Inc. v. UNITED STATES et al. COLUMBIA BROADCASTING SYSTEM, Inc. v. UNITED STATES et al. |
Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
G. B. Zorbaugh, New York City, Cravath, Swaine & Moore, New York City (Alfred McCormack, George B. Turner and Charles Myneder, New York City, of counsel), for American Broadcasting Co., Inc.
Cahill, Gordon, Zachry & Reindel, New York City (Paul W. Williams, Gustav B. Margraf, Thomas E. Ervin and Dudley B. Tenney, New York City, of counsel), for National Broadcasting Co., Inc.
Rosenman, Goldmark, Colin & Kaye, New York City (Ralph F. Colin, Max Freund and Andrew J. Schoen, New York City, of counsel), for Columbia Broadcasting System, Inc.
Newell A. Clapp, Acting Asst. Atty. Gen., Myles J. Lane, U. S. Atty. for Southern Dist. of New York, and Nathan Skolnik, Asst. U. S. Atty., New York City, James E. Kilday and William J. Hickey, Special Assts. to the Atty. Gen., for the United States.
Benedict P. Cottone, Gen. Counsel, and J. Roger Wollenberg, Asst. Gen. Counsel, Washington, D. C., Daniel R. Ohlbaum, Erich Saxl and Richard T. Conway, Washington, D. C., for Federal Communications Commission.
Before CLARK, Circuit Judge, and LEIBELL and WEINFELD, District Judges.
These three actions were instituted in August 1949 to enjoin and set aside an order of the Federal Communications Commission adopting certain interpretative rules of the Commission in relation to "giveaway" programs on radio and television.1 Jurisdiction of this three-judge court is based on the provisions of the Federal Communications Act, 47 U.S.C.A. § 402(a) and the United States Judiciary and Judicial Procedure Act, T. 28 U.S.C. §§ 1336, 1398 and 2284. The right to a judicial review of the action of the Federal Communications Commission is also asserted by the plaintiffs under Section 10 of the Administrative Procedure Act. 5 U.S.C.A. § 1009.
The stipulation in each action provided that all the allegations of the amended complaint be taken as admitted by the defendants and that either plaintiff or defendants may rely upon facts set forth in the amended complaint in the companion actions and upon any of the affidavits filed in either of said companion actions by either plaintiff or defendants therein.
The three-judge court was thereafter reconstituted by the designation of Judge Weinfeld in place of Judge Rifkind, who had resigned as a District Judge. The motions in the three actions were consolidated for argument and were argued on December 15th, 1952.
The Pleadings and Motions.
The amended complaint further alleges that unless the Commission's Order and the Rules be permanently enjoined and set aside, plaintiff's applications for renewal licenses for its broadcasting stations and for permits or licenses to extend its system will automatically be denied and its investments will be destroyed; or in any event plaintiff will be forced to discontinue the broadcasting of programs which may be within the Commission's Rules and plaintiff will suffer irreparable injury; that the Order and Rules are beyond the jurisdiction and authority of the Commission, violate the provisions of the Administrative Procedure Act, and are illegal and void; that the Rules are in violation of certain provisions of the Constitution of the United States and of the amendments thereto.
The prayer for relief asks that a three-judge court be constituted to hear and determine the action; that plaintiff be granted an interlocutory injunction; and that upon final hearing and determination of this action, the court "enter a decree permanently enjoining, setting aside and annulling said Order of the Commission adopted August 18, 1949, and the Rules adopted thereby".
Annexed to the amended complaint of the American Broadcasting Company is a description of its "Stop The Music" program—the radio version and the television version. The contestants are of two kinds: telephone participants and studio participants. The telephone participants are selected by lot or chance from telephone directories. The telephone participant is not required to be listening at his radio to the broadcast at the time he is called. If the telephone participant fails to identify the melody, a studio participant is given an opportunity to do so. The prizes are furnished by the manufacturer, in return for a brief advertisement of his product. Those who are selected from the television audience express in advance, through postcards, their desire to participate. From the cards received a random selection is made and the participants are telephoned.
An affidavit of G. B. Zorbaugh, Secretary and Acting General Attorney for American, is submitted in support of American's motion for a summary judgment. Annexed to it are many exhibits which are also annexed to the affidavits submitted by National or Columbia. They will be...
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