Albertson v. Federal Communications Commission

• Citation: 182 F.2d 397
• Decision Date: 22 May 1951
• Docket Number: No. 10305.,10305.
• Parties: ALBERTSON v. FEDERAL COMMUNICATIONS COMMISSION (DUNKIRK BROADCASTING CORPORATION, Intervenor).
• Court: U.S. Court of Appeals — District of Columbia Circuit

182 F.2d 397 (1951)

ALBERTSON v. FEDERAL COMMUNICATIONS COMMISSION (DUNKIRK BROADCASTING CORPORATION, Intervenor).

No. 10305.

United States Court of Appeals District of Columbia Circuit.

Argued February 3, 1950.

Decided May 22, 1951.

Mr. Vernon L. Wilkinson, Washington, D. C., with whom Messrs. Andrew G. Haley and James A. McKenna, Jr., Washington, D. C., were on the brief, for appellant.

Mr. Max Goldman, Assistant General Counsel, Federal Communications Commission, Washington, D. C., with whom Messrs. Benedict P. Cottone, General Counsel, Richard A. Solomon and Thomas H. Wall, Counsel, all of the Federal Communications Commission, all of Washington, D. C., were on the brief, for appellee. Mr. Dee W. Pincock, Washington, D. C., also entered an appearance for appellee.

Mr. Charles F. Duvall, Washington, D. C., with whom Messrs. Ben S. Fisher, Charles V. Wayland and John P. Southmayd, all of Washington, D. C., were on the brief, for intervenor Dunkirk Broadcasting Corporation.

Before PROCTOR, WASHINGTON and BAZELON, Circuit Judges.

PROCTOR, Circuit Judge.

We must first determine whether this appeal was taken in time. 47 U.S.C.A. § 402(c). If not, it must be dismissed. If so, we are met with a further question as to the legality of the action of the Federal Communications Commission in dismissing appellant's application for rehearing under Section 405 of the Federal Communications Act, 47 U.S.C.A. § 405. These questions arise out of the following state of facts.

Albertson, appellant, has been the licensee since 1936 of radio broadcast station WBNY at Buffalo, New York, operating on a frequency of 1400 kilocycles, 250 watts power, unlimited time. Dunkirk Broadcasting Corporation, intervenor, (hereafter called "Dunkirk"), applied July 30, 1947, for a new broadcast station in the city of Dunkirk, New York, on a frequency of 1410 kilocycles, 500 watts power, unlimited time, directionalized at night. This application, supported by an engineering report and map, represented that "No co-channel or adjacent channel interference will be caused to * * * any existing or proposed broadcast station * *." Upon the basis of the application, with that information, the Commission granted a construction permit December 16, 1948, without a hearing, as in the public interest, pursuant to 47 U.S.C.A. § 309(a) and Commission Rule 1.382.

On January 5, 1949, Albertson applied for "rehearing" of the order. This application was filed as of right under Section 405 of the Act, upon the asserted ground that operation of Dunkirk would "produce interference to the service of WBNY within its established service area." An accompanying affidavit of Albertson's consulting engineer stated that the Dunkirk operation "will cause objectionable interference within the WBNY day time normally protected contour on .5 mv/m." The Commission was requested to set aside the Dunkirk grant; designate its application for hearing, and make Albertson a party.

Dunkirk opposed the Albertson application upon two grounds. First, that the supporting engineering affidavit failed to comply with the requirements of Rule 1.390 (c) in that no reference was made to the Commission's Standards of Good Engineering Practice or to actual measurements made in accordance with the Standards, and no basis was given by the engineer for his conclusion. Second, that on December 13, 1948, the Commission had granted a construction permit to Erie Broadcasting Company (hereafter called "Erie"), for a radio station on 1400 kilocycles, 250 watts power, unlimited time, as in the public interest; that the Commission's records showed this station would cause interference to WBNY; that WBNY had not objected, was not named a party to the proceedings and did not intervene or apply for rehearing. An affidavit and a map of Dunkirk's consulting radio engineer was attached. These purported to show, with all the technical data contemplated by Rule 1.390, "that the area of adjacent channel interference from the proposed Dunkirk operation to WBNY falls entirely within the interference area from the Erie operation to WBNY." So Dunkirk contended that WBNY could not claim to serve the area lost by the Dunkirk operation as it would be lost to WBNY through the Erie grant; that it could not be claimed the Dunkirk grant injured or modified the WBNY license, for its interests were not adversely affected thereby; hence that WBNY was "not entitled to consideration" under Rule 1.390 as a person aggrieved or whose interest would be adversely affected; therefore that the application for rehearing should be denied. These contentions are renewed in this court.

The Commission sustained the objection that Albertson's engineering affidavit was inadequate, and dismissed his application February 16, 1949. Within the twenty days allowed for noting an appeal, Albertson filed a "Motion to Set Aside Order of February 16, 1949, to Vacate Grant of December 15, 1948, and to Designate Application for Hearing." We shall refer to this pleading as a "motion to reconsider." It contains extensive argument, stressing the admission by Dunkirk and its engineer of interference with the Albertson Station and asserting that the motion was being filed "to correct a decision which it is believed is both unsound and unfair, and to foreclose any contention on appeal that petitioner has not exhausted his administrative remedies." Dunkirk's reply opposed the motion upon its merits. No question was raised as to its procedural status. The motion was considered by the Commission on its merits and denied. Within twenty days thereafter, Albertson filed his notice of appeal in this Court. 47 U.S.C.A. § 402(c).

The Commission and Dunkirk now contend that the appeal should be dismissed as not having been taken in time. They concede that Albertson's application for "rehearing" under Section 405 tolled the statutory period of twenty days for an appeal. Southland Industries v. Federal Communications Commission, 1938, 69 App. D.C. 82, 99 F.2d 117; Saginaw Broadcasting Co. v. Federal Communications Commission, 1938, 68 App.D.C. 282, 96 F.2d 554. They argue, however, that the motion to reconsider the order dismissing the application for rehearing did not suspend running of the appeal period because it "was not a timely filed petition for rehearing under Section 405 or any other administrative remedy authorized by the Communications Act or the Commission rules." In short, they contend that the motion was without procedural standing. Obviously it was not, as they assume, a second application for rehearing contemplated by Section 405, and was not so intended. Nor do the Commission Rules contain any express provision for a motion to reconsider the Commission's action on an application for rehearing filed under Section 405. But, there is nothing in the statute or rules opposed to such a motion. So we think there can be no doubt, in the absence of statutory prohibition, that the authority of the Commission to hear and determine matters arising under the rehearing provision of Section 405 carries with it by implication the authority to reconsider a "decision, order or requirement" made within the twenty days allowed for an appeal. The power to reconsider is inherent in the power to decide. Therefore, in the absence of any specific limitation, such a motion may be filed within the period for taking an appeal. That is so, for within such period jurisdiction over the contested order remains with the Commission. Babler v. United States, 8 Cir., 1943, 137 F.2d 98, 99; United States ex rel. Harrington v. Schlotfeldt, 7 Cir., 1943, 136 F.2d 935, 937.

Contrary to its present position, the Commission has clearly recognized its inherent authority to reconsider previous action taken by it. Rule 1.726(c) provides that the Commission "may on its own motion set aside any action made or taken by it within 20 days." Needless to say, if it can set aside its action, the power to do so is not restrained by the words of the rule which refer only to action taken on its own motion. The authority is not derived from the rule but from the implied powers arising out of the Act. Therefore, if it may, as it undoubtedly can, reconsider previous action and set the same aside on its own motion, there is nothing to preclude it from doing so upon the motion of an interested party. Cf. Sprague v. Woll, 7 Cir., 1941; 122 F.2d 128, 130. For these reasons we are not impressed by the argument that the Commission lacked express statutory or administrative authority to reconsider its order dismissing Albertson's application for rehearing. Braniff Airways v. Civil Aeronautics Board, 1945, 79 U.S.App.D.C. 341, 147 F. 2d 152.

The Commission relies upon this court's opinion in Safeway Stores, Inc. v. Coe, 1943, 78 U.S.App.D.C. 19, 136 F.2d 771, 774, 148 A.L.R. 782. We think the conclusion there is not applicable to the facts in the present case. That decision turned upon the positive prohibition of Rule 6(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., against enlargement of time for filing a motion for new trial...