Turner v. F.C.C.
| Decision Date | 23 June 1975 |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Paul Gewirtz, Washington, D. C., with whom Joseph Onek, Washington, D. C., was on the brief for petitioners.
Joseph A. Marino, Associate Gen. Counsel, Federal Communications Commission, with whom Ashton R. Hardy, Gen. Counsel and C. Grey Pash, Jr., Counsel, Federal Communications Commission were on the brief, for respondent. R. Michael Senkowski, Counsel, Federal Communications Commission also entered an appearance for respondent.
John B. Summers, Washington, D. C., was on the brief for intervenor, National Association of Broadcasters. John A. Borsari and George R. Borsari, Jr., Washington, D. C., entered appearances for intervenor Radio Station WSNT, Inc.
Before MacKINNON and WILKEY, Circuit Judges, and JAMESON, * Senior District Judge for the District of Montana.
Opinion for the Court filed by Circuit Judge WILKEY.
Richard Turner and others filed a petition in 1970 before the Federal Communications Commission (FCC) seeking to deny renewal of the license of WSNT, Inc., to operate WSNT-AM in Sandersville, Georgia. Petitioners alleged racial discrimination in WSNT's operation and a failure adequately to serve the entire Sandersville community, which is 60 percent black. In an opinion and order dated 11 March 1971, the FCC designated WSNT's renewal application for hearing pursuant to section 309(e) of the Communications Act. 1 Prior to the scheduled hearing, the petitioners and the licensee reached a settlement and as a result petitioners urged that WSNT's renewal application be granted. Petitioners also requested that WSNT be required to reimburse the legal expenses incurred in prosecuting the petition to deny. At the same time that it granted WSNT's renewal application, the Commission denied Turner's request that WSNT be ordered to reimburse its expenses, on the authority of KCMC, Inc. 2
While Turner's appeal of the Commission's denial was pending, this court, in Office of Communication of United Church of Christ v. FCC, 3 reversed the KCMC decision. Upon the joint request of the parties, Turner's appeal was remanded to the Commission for further consideration in light of the opinion in United Church of Christ.
On remand the Commission concluded that it was without legal authority to require WSNT to reimburse Turner's expenses and that reimbursement was not warranted on the facts of this case. 4 While conceding that its powers under sections 4(i) and 303(r) of the Communications Act were broad, it was persuaded that the authority to order reimbursement of legal expenses should not be implied "absent specific statutory authority." The Commission in its opinion dealt with the issue as follows:
(T)he shifting of attorney's fees is not a new concept. The fact is that fee shifting was well known to Congress when the Act was adopted, and Congress did not choose to number it specifically among the Commission's regulatory tools. Moreover, any attempt to infer such power from general grants of authority has to be considered in the light of the traditional rule in this nation's courts against awards of attorney's fees, the strict limitations on the Commission's powers under the Act to require broadcast licensees to pay out money, and the fact that Congress has not hesitated in other circumstances to authorize fee awards explicitly when it has determined such authorization to be warranted.
18. The federal courts have awarded attorney's fees in certain classes of cases not covered by statute, and Turner argues by analogy that the Commission has authority to do the same thing. But the "foundation" for this practice in the courts is "the original authority of the chancellor to do equity in a particular situation," Sprague v. Ticonic National Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 780, 83 L.Ed. 1184 (1939), and the Commission has no such equitable authority. Instead, the Commission must find its authority in its enabling statutes. Regents v. Carroll, 338 U.S. 586, 70 S.Ct. 370, 94 L.Ed. 363 (1949); Illinois Citizens Committee v. FCC, supra. 5
We affirm the Commission's order. Congress, and not the Commission, can authorize an exception to the "American Rule" that litigants bear the expense of...
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