California Ass'n of Physically Handicapped, Inc. v. F.C.C.

• Decision Date: 10 December 1985
• Docket Number: No. 84-1170,84-1170
• Citation: 778 F.2d 823
• Parties: CALIFORNIA ASSOCIATION OF the PHYSICALLY HANDICAPPED, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Metromedia, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 823

778 F.2d 823

250 U.S.App.D.C. 202

CALIFORNIA ASSOCIATION OF the PHYSICALLY HANDICAPPED, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Metromedia Inc., Intervenor.

No. 84-1170.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 15, 1985.

Decided Dec. 10, 1985.

Stanley Fleishman, with whom Larry J. Roberts, David Grosz, Los Angeles, Cal., Charles D. Goldman, Washington, D.C., and Robert Lind, Los Angeles, Cal., were on brief, for appellant.

C. Grey Pash, Jr., Atty., F.C.C., Washington, D.C., for appellee. J. Paul McGrath, Asst. Atty. Gen., Jack D. Smith, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., John J. Powers, III, Margaret G. Halpern, Attys., Dept. of Justice and Gregory M. Christopher, Counsel, F.C.C., Washington, D.C., were on brief for appellee. Bruce E. Fein and Gerald M. Goldstein, Attys., F.C.C., Washington, D.C., also entered appearances for appellee.

Thomas J. Dougherty, with whom Preston R. Padden and Gene P. Belardi, Washington, D.C., were on brief for intervenor, Metromedia, Inc.

Before WALD, GINSBURG and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Dissenting opinion filed by Circuit Judge WALD.

GINSBURG, Circuit Judge.

The Federal Communications Commission (Commission or FCC), in an order released April 10, 1984, ¹ granted the "short form" applications of Metromedia, Inc., to transfer over fifty percent of its stock from public shareholders, none of whom held as much as five percent, to John W. Kluge, Metromedia's President and Chief Executive Officer, Chairman of the Board of Directors, and twenty-six percent stockholder. ² The California Association of the Physically Handicapped, Inc. (CAPH or Association) had filed a petition with the FCC objecting to the transfer and urging the employment of a "long form" application procedure. ³ Evidence uncontroverted before the Commission showed that Kluge had exercised de facto control of Metromedia with FCC approval for many years. The Commission held that the shift from de facto to de jure control by Kluge entailed no "substantial change" in ownership or control; ⁴ it therefore approved a "short CAPH invoked 47 U.S.C. Sec. 402(b)(6), which authorizes judicial review at the instance of any person "who is aggrieved or whose interests are adversely affected by" a Commission order. Intervenor Metromedia has challenged the Association's standing to maintain the appeal, ⁶ and we would be obliged to consider that threshold matter on our own initiative in any event. See Juidice v. Vail, 430 U.S. 327, 331, 97 S.Ct. 1211, 1215, 51 L.Ed.2d 376 (1977).

                form" application procedure. 5   CAPH noticed an appeal to this court from the FCC's rejection of the Association's petition
                

Supreme Court precedent instructs that the constitutional components of "standing" to invoke judicial review are three: (1) personal injury (2) fairly traceable to the defendant's unlawful conduct and (3) likely to be redressed by the requested relief. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); see Allen v. Wright, --- U.S. ----, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984). The Association, we rule, has not met the requirement set out second--the causality requirement. ⁷ We conclude that the injury alleged by CAPH is not fairly traceable to the challenged FCC action--the Commission's consent through short form procedure to the transfer of Metromedia stock--and we dismiss the appeal on that account. See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976); Von Aulock v. Smith, 720 F.2d 176, 180-81 (D.C.Cir.1983).

CAPH represents persons with physical handicaps. The Association claims injury stemming from Metromedia's alleged longstanding neglect of its responsibilities to the handicapped public, particularly Metromedia's failure to take reasonable steps to make television understandable to the hearing impaired and its failure to exert reasonable efforts to hire the handicapped. CAPH's very acccount of Metromedia's past performance, however, reveals the vulnerability of the Association's present appeal to this court. The injuries recounted by CAPH plainly do not stem from the FCC's approval of the transfer of ownership to the individual, John W. Kluge, who has in fact controlled Metromedia for many years.

The "standing" requirement is that the challenged action cause the injury. The Association, however, cannot fairly trace its ongoing injury--either in origin or in endurance--to the transfer in question. Instead, CAPH's real plea is that the transfer will furnish no cure--it will not cause the injury to abate. This will not suffice. Under the test for judicial review that precedent prescribes, the alleged injury--here attributed to Metromedia's inadequate Application of the causality component of "standing" is not always clear and certain. ⁹ In this case, however, we find no irrationality or unfairness in applying the criterion, for CAPH's grievance indeed can be aired effectively before both agency and court. Unlike the complainants in such cases as Allen v. Wright, supra, and Simon v. Eastern Kentucky Welfare Rights Organization, supra, ¹⁰ CAPH is not remitted to out-of-court prayers for relief for its alleged injury-in-fact.

                captioning and hiring efforts--must be fairly traceable to the asserted unlawful conduct of the FCC, i.e., the Commission's "short form" consent to the Metromedia stock transfer.   See Allen v. Wright, 104 S.Ct. at 3328-29;  Gilmore v. City of Montgomery, 417 U.S. 556, 566-69, 94 S.Ct. 2416, 2422-24, 41 L.Ed.2d 304 (1974). 8
                

CAPH claims aggrievement because Metromedia has not fulfilled its public duty to the handicapped in the operation of its television stations. The Association's complaint is properly and pointedly raised in a license renewal proceeding where, if it is borne out, the Commission could provide effective relief in the form of a refusal to renew the license. ¹¹ In the proceeding at In sum, CAPH's alleged injury occurred before, existed at the time of, and continued unchanged after the challenged Commission action. CAPH, therefore, cannot tenably trace the asserted injury to the FCC's approval of Metromedia's transfer application. Rather, the injury CAPH describes traces to the Commission's willingness to grant and renew licenses for stations that, in CAPH's judgment, fail sufficiently to serve and hire the handicapped. CAPH, as the FCC has underscored, has standing to challenge licensing and renewal decisions on the basis of the "aggrievement" it asserts here, but it does not have a stake in the transfer proceeding in question of the kind necessary to invoke review by an Article III court. ¹⁴

hand, by contrast, even if the Commission had denied the transfer application, ¹² Metromedia, despite its allegedly bad record, would remain in control of its stations. ¹³

CONCLUSION

CAPH lacks the injury in fact caused by the action at issue that is required by Article III. See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 596 (1978). We therefore order that the appeal in this case is

Dismissed.

WALD, Circuit Judge, dissenting.

I dissent from the panel's conclusion that the California Association for the Physically Handicapped (CAPH) lacks standing to challenge the Federal Communications Commission's (FCC or Commission) approval of a "short form" transfer ¹ of more than 50 percent of licensee Metromedia's stock. The majority, embracing a standing argument raised not by the FCC but by licensee Metromedia, overreads the requirements of relevant standing precedent and overlooks an essential purpose of the transfer provisions of the Communications Act, 47 U.S.C. Secs. 151 ff. (1982). In my view, CAPH's continuing injury from Metromedia's alleged neglect of its duties to the handicapped "fairly can be traced" to the FCC's decision to permit the short form transfer and is "likely to be redressed" by the requested relief. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). I would therefore find that CAPH has standing.

I. STANDING PRECEDENT IN A THIRD-PARTY CAUSATION CONTEXT

The majority holds that CAPH lacks standing because its injuries are not fairly traceable to the FCC's approval of Metromedia's transfer application. Its analysis, however, underestimates the ability of this causation requirement to accommodate the fact that the primary source of CAPH's injury is the behavior of licensee Metromedia, although the defendant is the FCC. Plaintiffs such as CAPH can have standing to challenge an agency's "behavior only as a means to alter the conduct of a third party, not before the court, who is the direct source of [their] injury." Common Cause v. Department of Energy, 702 F.2d 245, 251 (D.C.Cir.1983) (emphasis in original).

In such third-party causation cases, " '[t]he mere fact that ultimate relief to the appellants depends on the actions of third parties does not by itself defeat appellants' standing ...' [although it] 'may make it substantially more difficult to meet the minimum requirement of Article III....' " Von Aulock v. Smith, 720 F.2d 176, 181 (D.C.Cir.1983) (citations omitted). The third-party origin of the injury plainly influences both the causation and redressability inquiries, which must inevitably be closely related where the defendant is a regulatory agency. In such cases, the causation analysis must look to whether the agency's past action or inaction affected the third party to such an extent that the agency's actions can be said to have substantially contributed to the third party's injurious behavior. The redressability analysis will similarly look to whether the court's...