Wilson v. A.H. Belo Corp., s. 92-16040
| Decision Date | 27 June 1996 |
| Docket Number | Nos. 92-16040,92-16576,s. 92-16040 |
| Parties | 24 Media L. Rep. 2166, 96 Cal. Daily Op. Serv. 4759, 96 Daily Journal D.A.R. 7667, 3 Communications Reg. (P&F) 586 Pete WILSON, Governor; Californians for Senator Pete Wilson; Leo McCarthy; McCarthy for U.S. Senator, Plaintiffs-Appellants, v. A. H. BELO CORP.; KXTV; Great Western Broadcasting Corporation; Channel 40 Licensee; Renaissance Communications Corp.; Fidelity Television; CBS; Christ Craft Industries Inc.; NBC Subsidiary Inc.; KNBC TV; NBC INC.; KTLA Inc.; Chronicle Broadcasting of San Francisco Inc.; KRON TV; KTVU INC.; Cox Enterprises; McGraw-Hill Broadcasting Company Inc.; KGTV; San Joaquin Communications Corp.; KSEE; Meredith Broadcasting Inc.; KMST; Retlaw Broadcasting; KTXL, KRBK; Koplar Communications of California; Koplar Communications Inc.; KCBC; National Broadcasting Company, Inc.; KJEO; KGET; Acerkley Communications, Inc., Defendants-Appellees. Pete WILSON, et. al., Plaintiffs-Appellants, v. A.H. BELO CORP., et. al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael Jablonski, Savell & Williams, Atlanta, Georgia, for plaintiffs-appellants.
Carter G. Phillips, Sidley & Austin, Washington, D.C., for defendants-appellees.
Christopher J. Wright, Deputy General Counsel, Washington, D.C., for amicus curiae Federal Communications Com'n.
Appeals from the United States District Court for the Eastern District of California, Lawrence K. Karlton, District Judge, Presiding. D.C. Nos. CV-91-1206-LKK, CV-92-659-LKK.
Before: T.G. NELSON and TASHIMA, Circuit Judges, and BURNS, District Judge. *
The two actions underlying these consolidated appeals seek to recover alleged overcharges for political advertising in violation of the Communications Act of 1934, as amended, 47 U.S.C. § 315(b). The district court held that a preemptive Declaratory Ruling issued by the Federal Communications Commission ("FCC") during the pendency of the first action divested the district court of jurisdiction under the Hobbs Act, 28 U.S.C. § 2342. We affirm the district court's dismissal of the actions for lack of subject matter jurisdiction.
Various political candidates and their campaign committees (collectively, the "Candidates") initiated these two actions against numerous California television stations (the "Stations") to recover amounts allegedly overpaid for campaign advertisements. The first complaint, filed September 10, 1991, seeks to recover overcharges in the 1988 race for United States Senator from California. The second complaint, filed April 3, 1992, seeks to recover for overcharges in the 1990 campaigns. The Candidates allege that the Stations' charges exceeded the "lowest unit charge" limitation imposed by § 315(b). 1 Both complaints include supplemental claims under state law for breach of written contract, negligent misrepresentation, and breach of the covenant of good faith and fair dealing.
On December 13, 1991--while the first of these two cases was pending in the district court--the FCC issued a Declaratory Ruling asserting its exclusive authority to entertain and adjudicate § 315(b) claims. In re: Exclusive Jurisdiction With Respect to Potential Violations of the Lowest Unit Charge Requirements of Section 315(b) of the Communications Act of 1934, as amended ("Declaratory Ruling "), 6 F.C.C.R. 7511 (1991). The FCC held that federal law preempts "any state cause of action dependent on any determination of the lowest unit charge under Section 315(b) of the Communications Act." Id. at 1. The FCC also found that no private cause of action exists under § 315(b). Id. at 5 n. 17.
On January 15, 1992, numerous politicians from Georgia and Alabama, who were not parties to these actions, petitioned the FCC to reconsider the Declaratory Ruling. The FCC denied the petitions for reconsideration on June 12, 1992. Declaratory Ruling: Order on Reconsideration, 7 F.C.C.R. 4123 (1992).
On April 27, 1992, the district court held that as a final order of the FCC, the Declaratory Ruling divested the district court of jurisdiction because 28 U.S.C. § 2342 provides exclusive jurisdiction in the courts of appeals to enjoin, set aside, suspend or determine the validity of all final orders of the On July 29, 1992, the parties to the second case stipulated that the district court's April 27, 1992, order dismissing the first action was controlling in the second action as well. Thus, the parties stipulated to a dismissal of the second action for lack of jurisdiction while reserving the Candidates' right to appeal from the dismissal. The district court entered judgment in the second action on August 11, 1992, and the Candidates filed a timely notice of appeal on August 14, 1992. 2
FCC. Accordingly, the district court dismissed the complaint in the first action for lack of subject matter jurisdiction and entered judgment for the Stations on April 29, 1992. The Candidates filed a timely notice of appeal on May 26, 1992.
While these appeals were pending in this court, political candidates in Georgia and Alabama filed a challenge to the Declaratory Ruling before the Eleventh Circuit. Miller v. FCC, 66 F.3d 1140 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1543, 134 L.Ed.2d 647 (1996). On September 23, 1992, we issued an order staying all proceedings pending the Eleventh Circuit's resolution of the challenge to the Declaratory Ruling. On February 12, 1993, we granted a voluntary dismissal of the appeal with a right to reinstate appeals. On September 29, 1995, the Eleventh Circuit held that the Declaratory Ruling was merely an agency opinion--not a regulation or an adjudication--and thus, there was no actual case or controversy before the court. Miller, 66 F.3d at 1144-45. The Miller court refused to exercise jurisdiction under 47 U.S.C. § 402(a) and 28 U.S.C. § 2342 and dismissed the petition for review of the Declaratory Ruling. We reinstated the instant appeals on November 6, 1995.
The district court had jurisdiction to determine its own subject matter jurisdiction. United States v. United Mine Workers, 330 U.S. 258, 292 n. 57, 67 S.Ct. 677, 695 n. 57, 91 L.Ed. 884 (1947). We have jurisdiction over the district court's dismissal of the actions under 28 U.S.C. § 1291.
The existence of subject matter jurisdiction is a question of law, which we review de novo. Roundtree v. United States, 40 F.3d 1036, 1038 (9th Cir.1994); Yokeno v. Mafnas, 973 F.2d 803, 806 (9th Cir.1992). We review the district court's findings of fact relevant to its determination of subject matter jurisdiction for clear error. Id.; Dweck v. Japan CBM Corp., 877 F.2d 790, 792 (9th Cir.1989).
We have previously recognized that "[p]arties seeking to challenge the validity of FCC orders must do so through actions in the circuit courts under 47 U.S.C. § 402 and 28 U.S.C. § 2342(1)." Hawaiian Tel. Co. v. Public Util. Comm'n, 827 F.2d 1264, 1270 n. 12 (9th Cir.1987), cert. denied, 487 U.S. 1218, 108 S.Ct. 2870, 101 L.Ed.2d 906 (1988). Section 402(a) provides:
Any proceeding to enjoin, set aside, annul, or suspend any order of the Commission under this chapter (except those appealable under subsection (b) of this section) 3 shall be brought as provided by and in the manner prescribed in chapter 158 of Title 28.
47 U.S.C. § 402(a) (footnote added). The Hobbs Act, in turn, states:
The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of--
(1) all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47.
28 U.S.C. § 2342(1). Together, these two provisions vest the courts of appeals with Thus, the district court's ruling that it lacked jurisdiction over the instant actions was proper if (1) the Declaratory Ruling was a final order of the FCC made reviewable by 47 U.S.C. § 402(a), and (2) these proceedings would have required the district court to enjoin, set aside, suspend, or determine the validity of the Declaratory Ruling.
exclusive jurisdiction to review the validity of FCC rulings.
The Declaratory Ruling became "final" on the date of public notice--December 13, 1991. 47 C.F.R. § 1.103(b) (); 47 C.F.R. § 1.4(b)(2) (); California Ass'n of the Physically Handicapped, Inc. v. FCC, 833 F.2d 1333, 1334 (9th Cir.1987).
The Declaratory Ruling also fits the statutory definition of an "order." The Administrative Procedure Act ("APA") defines an "order" as "the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making...." 5 U.S.C. § 551(6) (emphasis added). The APA explicitly provides that "[t]he agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty." 5 U.S.C. § 554(e). Pursuant to this statutory authorization, 47 C.F.R. § 1.2 provides:
Declaratory rulings.
The Commission may, in accordance with section 5(d) of the Administrative Procedure Act, on motion or on its own motion issue a declaratory ruling terminating a controversy or removing uncertainty.
47 C.F.R. § 1.2. 4
Here, the FCC issued the Declaratory Ruling to terminate controversy and to remove uncertainty with respect to political advertisements and the "lowest unit charge" requirement. Candidates in at least three states--Georgia, Alabama, and California--have resorted to court litigation, as opposed to administrative remedies, to enforce...
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