WKAT, Inc. v. FCC, 13718
| Citation | 296 F.2d 375 |
| Decision Date | 09 October 1961 |
| Docket Number | No. 13718,16091.,14021,14170,13725,16089,13718 |
| Parties | WKAT, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Public Service Television, Inc., L. B. Wilson, Inc., Intervenors. EASTERN AIRLINES, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. Public Service Television, Inc., L. B. Wilson, Inc., Intervenors. NORTH DADE VIDEO, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. Elzey ROBERTS, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Messrs. Paul A. Porter, George Bunn, G. Duane Vieth, James O. Juntilla and L. Reed Miller, Washington, D. C., for appellant WKAT, Inc.
Mr. Harold L. Russell, Atlanta, Ga., for appellant Eastern Airlines, Inc.
Messrs. A. Harry Becker and Alexander Boskoff, Washington, D. C., for appellant North Dade Video, Inc.
Messrs. Andrew G. Haley and J. Roger Wollenberg, Washington, D. C., for Elzey Roberts, appellant in No. 16091 and amicus curiae in Nos. 13718, 13725, 14021 and 14170. Mr. Michael H. Bader also entered an appearance for Elzey Roberts as amicus curiae in Nos. 13718, 13725, 14021 and 14170.
Messrs. John L. Fitzgerald, Gen. Counsel, Max Paglin, Asst. Gen. Counsel, and Joel Rosenbloom, Counsel, Federal Communications Commission, Washington, D. C., for appellee.
Messrs. Paul M. Segal and Robert A. Marmet, Washington, D. C., for L. B. Wilson, Inc., intervenor in Nos. 13718, 13725, 14021 and 14170.
Messrs. Norman E. Jorgensen, Washington, D. C., and William I. Denning, Washington, D. C., for Public Service Television, Inc., intervenor in Nos. 13718, 13725, 14021 and 14170.
Mr. Richard A. Solomon, Washington, D. C., for the United States, amicus curiae in Nos. 13718, 13725, 14021 and 14170.
Before PRETTYMAN, WASHINGTON, and DANAHER, Circuit Judges, in Chambers.
Certiorari Denied October 9, 1961. See 82 S.Ct. 63.
Order — Dec. 23, 1960.
It appearing that intervenor Public Service Television, Inc. has filed a motion to direct appellee to vacate its purported order of July 14, 1960, to transmit the record made on the remanded issues and to direct the parties to file supplemental briefs, and that the aforesaid intervenor has also filed a motion to stay the effective date of the Commission's order of July 14, 1960, that the United States of America has filed a motion for leave to file a brief and argue orally as amicus curiae in these cases, that Elzey Roberts has filed a motion to intervene as amicus curiae in these cases and has also filed a motion for leave to file a reply to appellee's objection to the motion for stay, that intervenor L. B. Wilson, Inc. has filed a motion to expedite consideration of the motion for a stay and that appellant in case No. 16089 has filed a motion to consolidate that case with cases Nos. 13718, 13725, 14021, and No. 14170, and that objections and replies to some of the aforesaid motions have been filed and considered by the court, and it further appearing that case No. 16091, Elzey Roberts v. Federal Communications Commission, arises from the same proceedings as do the above cases, it is
Ordered by the court that insofar as intervenor Public Service Television, Inc. moves to vacate appellee's order of July 14, 1960, its motion is held in abeyance, that insofar as said intervenor moves to transmit the record made on the remanded issues, said motion is granted, and that insofar as said intervenor moves that this court direct the parties to file supplemental briefs, said motion is dismissed as unnecessary in view of the procedures set forth hereinafter respecting the filing of briefs.
It is Further Ordered by the court that the motion of intervenor Public Service Television, Inc. to stay the effective date of the appellee's order of July 14, 1960, is held in abeyance; that the request contained in the Commission's opposition to the motion for a stay that an affirmative order be entered permitting the Commission's decision of July 14, 1960, to become effective 15 days after the ruling of this court pending ultimate review of the decision on the merits, is denied; and that the motion of L. B. Wilson, Inc. to expedite consideration of the motion for a stay is denied.
It is Further Ordered by the court that the United States of America and Elzey Roberts are each allowed to file briefs as amici curiae and to participate in the oral argument, and that the motion of Elzey Roberts for leave to file a reply to appellee's objection to the motion for stay is granted.
It is Further Ordered by the court that the motion of appellant in No. 16089 to consolidate that case with cases Nos. 13718, 13725, 14021, and No. 14170 is granted, and it is
Further Ordered by the court, sua sponte, that case No. 16091, Elzey Roberts v. Federal Communications Commission, is consolidated with the aforesaid cases for purposes of briefing and oral argument.
It is Further Ordered by the court that the parties are directed to proceed forthwith, in accordance with the following schedule, to prepare the cases for presentation upon the merits of the actions taken, or proposed to be taken, by the Commission in its order of July 14, 1960:
Counsel for all parties will report to the court on or before December 28, 1960, whether they have been able to agree upon a statement of the questions presented upon these appeals under the foregoing directions of the court. In the event of inability to agree upon a statement of the issues, each party may state in its brief its view of the questions presented. The court has been advised by the Commission that the record upon which its order of July 14th was premised will be forthwith filed with the Clerk of this court. Briefs on behalf of Public Service Television, Inc. and North Dade Video, Inc. will be filed on or before the 25th day after the record is filed. Briefs on behalf of L. B. Wilson, Inc. and the Commission will be filed on or before the 15th day after the briefs of Public Service Television, Inc. and North Dade Video, Inc. have been filed. Briefs on behalf of the United States, as amicus curiae, and on behalf of Elzey Roberts will be filed on or before the 15th day after the briefs of Public Service Television, Inc. and North Dade Video, Inc. have been filed. Reply briefs will be filed on or before the 10th day after the last of the foregoing briefs is filed.
All briefs may be filed in typewritten form, to be followed by printed briefs within ten days after such filing.
The joint appendix will be prepared and filed within 25 days after the last of the briefs-in-chief has been filed.
WASHINGTON, Circuit Judge, did not participate in this order.
This Memorandum is in explanation of the order being entered in these proceedings as of this date.
On February 8, 1957, the Federal Communications Commission granted an application of Public Service Television, Inc., for a construction permit for a new television station to operate on Channel 10 in Miami, Florida. Other applicants for the permit had been WKAT, Inc., L. B. Wilson, Inc., and North Dade Video, Inc. The four applications had been considered in a comparative hearing. WKAT, Inc., petitioned this court for review of the grant of the permit (No. 13718 in this court).
Eastern Airlines, Inc., having been denied intervention before the Commission, also petitioned for review of the order and the denial of intervention (No. 13725 in this court).
Appellant WKAT, Inc., moved for a stay of the Commission order, and, on March 7, 1957, that motion was denied.
The Commission, upon the application of Public Service Television, Inc., the successful applicant, granted a modification of the construction permit. Appellant WKAT, Inc., protested the modification, its protest was denied, and it appealed from the denial (No. 14021 in this court).
Appellant WKAT, Inc., moved the Commission to reopen the comparative hearing, the motion was denied, and WKAT, Inc., appealed (No. 14170 in this court). The four cases were consolidated for briefing and argument. Appellants' brief was filed.
On March 13, 1958, the Commission moved the court to remand the cases for reconsideration. The Commission stated that public charges had been made in the course of a Congressional investigation that one of the Commissioners who had participated in the proceedings should have disqualified himself and that some of the applicants for the permit may have conducted themselves in a manner which might affect the Commission's basic determinations.
On March 14, 1958, a brief for the appellee was filed. Answers to the motion to remand were filed. The motion was argued orally. On April 17, 1958, the court remanded the cases to the Commission, with instructions that it hold an evidentiary hearing upon the allegations in the motion to remand, that the Commission make findings as a result of the hearing, and that the Commission report its findings to the court and recommend such disposition of the appeals as seemed to it necessary or desirable. The court ordered that it retain jurisdiction pending receipt of the findings and report of the Commission. The Commission filed a petition for clarification of the remand order. The Commission stated that the court's language could be interpreted as authorizing the Commission "to reach ultimate findings or conclusions, subject to judicial review," or it could be construed to mean that the Commission would in effect operate merely as a special master for the court. The Commission stated that its view was that it was the obligation of the Commission to determine initially the competence to participate of its individual members and the basic qualifications of applicants for permits; that it would not be appropriate for such determinations to be made...
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