Heitmeyer v. Federal Communications Commission, 6762.

• Decision Date: 27 December 1937
• Docket Number: No. 6762.,6762.
• Citation: 95 F.2d 91
• Parties: HEITMEYER v. FEDERAL COMMUNICATIONS COMMISSION.
• Court: U.S. Court of Appeals — District of Columbia Circuit

95 F.2d 91 (1937)

HEITMEYER v. FEDERAL COMMUNICATIONS COMMISSION.

No. 6762.

United States Court of Appeals for the District of Columbia.

Decided December 27, 1937.

Clarence C. Dill, and James W. Gum, both of Washington, D. C., for appellant.

Hampson Gary, George B. Porter, Fanney Neyman, Frank U. Fletcher, and Ralph L. Walker, all of Washington, D. C., for appellee.

Before ROBB, GRONER, and MILLER, Associate Justices, and WHEAT, District Judge.

MILLER, Associate Justice.

This is an appeal under section 402(b) (1) of the Communications Act of 1934¹ from a decision of the Federal Communications Commission denying the appellant's application for a permit to construct a new radio broadcasting station at Cheyenne, Wyo.

The record shows that the Examiner who heard the case made findings of fact and arrived at conclusions therefrom to the effect that:

"The applicant is legally, technically, financially and otherwise qualified to construct and operate the proposed station. A need for additional service such as proposed by the applicant does exist in the area proposed to be served, and this application may be granted within the purview of section 307 of the Communications Act of 1934, 47 U.S.C.A. § 307, and the Regulations of the Commission with regard to quota, particularly Rule 6(f).

"The record is silent as to any possible interference with other applications that may be pending from the same state or zone.

"The site at which the applicant proposes to construct and operate the station will conform to the Rules and Regulations of the Commission.

"The granting of this application would serve public interest, convenience and necessity."

The Examiner, therefore, recommended that the application of Heitmeyer, the appellant herein, be granted. At the same time he recommended denial of the application of the Wyoming Radio Educational Association, which he had theretofore consolidated for hearing with the appellant's application.

Approximately four months later, on May 1, 1936, the Commission entered its final order denying the application; making no findings and assigning no reasons therefor, but stating that it would "issue and publish at a subsequent date an opinion setting forth a statement of the facts appearing of record and the grounds for the decision t herein reached." On June 12, 1936, the Commission's decision was entered denying the applications of appellant Heitmeyer and that of the Wyoming Radio Educational Association. The latter applicant has not appealed from the decision of the Commission and is not concerned herein.

Section 402(c) of the Communications Act, 47 U.S.C.A. § 402(c), provides that within thirty days after the filing of an appeal "the Commission shall file with the court the originals or certified copies of all papers and evidence presented to it upon the application or order involved, and also a like copy of its decision thereon, and shall within thirty days thereafter file a full statement in writing of the facts and grounds for its decision as found and given by it." (Italics supplied.)

The language of the section quoted is ambiguous. The phrase, "within thirty days thereafter," indicates the intention of Congress that in case of appeal the Commission shall have additional time, totaling sixty days from the filing of the appeal, within which to prepare and file "a full statement in writing of the facts and grounds for its decision." The language immediately following, "as found and given by it," is susceptible of the interpretation that findings of fact should have been prepared prior to, or simultaneously with, the entry of its decision. Such an interpretation, however, would defeat the very purpose of Congress in allowing the additional thirty days — unless we are prepared to hold that the "full statement in writing of the facts" means something more than findings of fact. Such a holding would be without meaning because on appeal this court will have before it the full record of the evidence. A statement greater in detail than findings, and less in detail than the record itself, would serve no useful purpose. In order to reconcile the two quoted phrases, therefore, and to secure harmony and consistency in the requirements of the statute, it is necessary to interpret the language, "found and given by it," as requiring the Commission to publish something less than findings of fact previous to or coincident with the entry of the decision. This can be accomplished by requiring it to file with its decision the grounds therefor and "a brief factual statement of the reasons" relied upon. As we said in Missouri Broadcasting Corporation v. Federal Communications Commission, 68 App.D.C. 154, 94 F.2d 623, decided December 6, 1937:

"The exact language is — file a full statement in writing of the facts and grounds for its decision as found and given by it. The six words we have italicized imply, we think, that the grounds of decision and a brief factual statement of the reasons therefor have been previously given, that is, previously to the filing of the full statement, i. e., findings of fact, in this court."

This reasoning brings us to the further definite conclusion that Congress intended the "full statement in writing of the facts * * * found * * * by it," which the Commission is required to file within sixty days after the filing of the appeal, to be of the same general form and character as findings of fact well known to trial courts. The words are properly susceptible of no other meaning. Moreover, there is no reason to suppose that Congress intended to establish a different rule of procedure, in this respect, for the Communications Commission than for other similar governmental boards and commissions which are engaged in quasi-judicial determinations. Beaumont, S. L. & W. Ry. Co. v. United States, 282 U.S. 74, 86, 51 S.Ct. 1, 5, 75 L.Ed. 221; see also, Virginian Ry. Co. v. United States, 272 U.S. 658, 674, 47 S.Ct. 222, 228, 71 L.Ed. 463. This conclusion is borne out also by the language of section 402(e), 47 U.S.C.A. § 402(e), which limits review of decisions of the Commission to questions of law and then provides that "findings of fact by the Commission, if supported by substantial evidence, shall be conclusive unless it shall clearly appear that the findings of the Commission are arbitrary or capricious." (Italics supplied.)

The questions which we must decide then, are: (1) Did the Commission make findings of fact? (2) If so, were they supported by substantial evidence? (3) Were they arbitrary or capricious? (4) Do they support the conclusions of law reached by the Commission in its decision?

We find nothing in the record, or its index, which bears the title "Findings of Fact." We do find a "Statement of Facts and Grounds for Decision." For convenience, this "Statement" is set out — in so far as it is pertinent to this appeal — as follows:

"Statement of Facts and Grounds for Decision

"* * * This proceeding arose upon the applications of Paul R. Heitmeyer for a construction permit to erect a new broadcast station at Cheyenne, Wyoming, to operate on the frequency of 1210 kc, with power of 100 watts, 250 watts local sunset, unlimited hours of operation; and of Wyoming Radio Educational Association for a construction permit to erect a new broadcast station at Cheyenne, Wyoming, to operate on the frequency of 630 kc, with power of 500 watts, 1 kw local sunset, unlimited hours of operation.

"The Commission was unable to determine from an examination of the applications that the granting thereof would serve public interest, convenience and necessity, and designated the same for public hearing, pursuant to Section 309(a) of the Communications Act of 1934, 47 U.S.C.A. § 309(a), before an examiner appointed by the Commission. Notice of time and place of hearing was given the applicant and other interested parties. Pursuant to said notice, the application was heard before an examiner on October 30, 1935. * * *

"Cheyenne, Wyoming, is the capital of the State, and is situated near the southeast corner thereof. The population is 17,361 (census of 1930), and Fort Warren, an Army post situated just outside the city, has an estimated population of 4,000. There are approximately 275 retail stores in the city, which did an estimated total volume of business of approximately seven million dollars in 1933. A number of jobbing establishments are located in the city, and railroad shops employ a considerable number of men. The surrounding territory is devoted principally to stock raising, and in some sections farming is engaged in.

"With Respect to the Application of Paul R. Heitmeyer

"Paul R. Heitmeyer, applicant herein, testified that he is an American citizen by birth, and is therefore legally qualified to be a licensee. It appears that he has been actively engaged in various capacities in radio broadcasting for about fifteen years, and he is at present employed as Manager for Broadcast Station KLO at Ogden, Utah. The Commission is of the opinion that the applicant is technically qualified.

"With respect to the financial qualifications of the applicant, he testified in the hearing on October 29, 1935, in the matter of his application for the Salt Lake City, Utah, station, the record of which was by stipulation incorporated into this record, that he estimated his financial worth to be $2,500.00. However, on July 15, 1935, he filed a sworn statement, as a part of this application, showing assets of $7,271, with liabilities of $474. Mr. Heitmeyer testified that a deposit had been placed to his credit by Mr. A. L. Glasman, who, it appears, is publisher of the Ogden Standard Examiner, and who also owned the controlling interest in Interstate Broadcasting Corporation, licensee of Station KLO at Ogden, Utah. The deposit was made by Mr. Glasman as a loan to Mr. Heitmeyer for the construction and operation of two broadcast stations, namely, the proposed station applied for herein, and...