Albertson v. Federal Communications Commission, No. 10305.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtPROCTOR, WASHINGTON and BAZELON, Circuit
Citation182 F.2d 397
PartiesALBERTSON v. FEDERAL COMMUNICATIONS COMMISSION (DUNKIRK BROADCASTING CORPORATION, Intervenor).
Decision Date22 May 1951
Docket NumberNo. 10305.

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.


182 F.2d 398

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,

182 F.2d 399
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...

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43 practice notes
  • Hercules, Inc. v. E.P.A., Nos. 77-1248
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 3, 1978
    ...International Broadcasting Co. v. FCC, 128 U.S.App.D.C. 93, 99, 385 F.2d 615, 621 (1967); Albertson v. FCC, 87 U.S.App.D.C. 39, 41, 182 F.2d 397, 399 (1950); Accord, United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 535, 66 S.Ct. 687, 90 L.Ed. 821 (1946); Baltimore & Ohio Rail......
  • Jackson v. Richards Medical Co., No. 91-5473
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 10, 1992
    ...regulation invalid, for "[t]he power to reconsider is inherent in the power to decide." Albertson v. Federal Communications Commission, 182 F.2d 397, 399 (D.C.Cir.1950). See also 45 Fed.Reg. 73035 (1980) (citing Albertson for EEOC's authority to promulgate subsections (b) and (d) of § 7 Sec......
  • American Methyl Corp. v. E.P.A., Nos. 84-1204
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 28, 1984
    ...Int'l Broadcasting Co. v. Federal Communications Comm'n 385 F.2d 615, 621 (D.C.Cir.1967); Albertson v. Federal Communications Comm'n, 182 F.2d 397, 399-400 (D.C.Cir.1950). EPA cites one other case on this point, but that court found reconsideration appropriate in light of fraud allegations ......
  • Microwave Communications, Inc. v. F. C. C., No. 73-2051
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 27, 1974
    ...at 99, 385 F.2d at 627. For holdings prior to enactment of § 405 in its present form, see Albertson v. FCC, 87 U.S.App.D.C. 39, 40-42, 182 F.2d 397, 398-400 (1950); Southland Industries v. FCC, 69 App.D.C. 82, 99 F.2d 117 (1938); Saginaw Broadcasting Co. v. FCC, 68 App.D.C. 282, 285-87, 96 ......
  • Request a trial to view additional results
42 cases
  • Hercules, Inc. v. E.P.A., Nos. 77-1248
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 3, 1978
    ...International Broadcasting Co. v. FCC, 128 U.S.App.D.C. 93, 99, 385 F.2d 615, 621 (1967); Albertson v. FCC, 87 U.S.App.D.C. 39, 41, 182 F.2d 397, 399 (1950); Accord, United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 535, 66 S.Ct. 687, 90 L.Ed. 821 (1946); Baltimore & Ohio Rail......
  • Jackson v. Richards Medical Co., No. 91-5473
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 10, 1992
    ...regulation invalid, for "[t]he power to reconsider is inherent in the power to decide." Albertson v. Federal Communications Commission, 182 F.2d 397, 399 (D.C.Cir.1950). See also 45 Fed.Reg. 73035 (1980) (citing Albertson for EEOC's authority to promulgate subsections (b) and (d) of § 7 Sec......
  • American Methyl Corp. v. E.P.A., Nos. 84-1204
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 28, 1984
    ...Int'l Broadcasting Co. v. Federal Communications Comm'n 385 F.2d 615, 621 (D.C.Cir.1967); Albertson v. Federal Communications Comm'n, 182 F.2d 397, 399-400 (D.C.Cir.1950). EPA cites one other case on this point, but that court found reconsideration appropriate in light of fraud allegations ......
  • Microwave Communications, Inc. v. F. C. C., No. 73-2051
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 27, 1974
    ...at 99, 385 F.2d at 627. For holdings prior to enactment of § 405 in its present form, see Albertson v. FCC, 87 U.S.App.D.C. 39, 40-42, 182 F.2d 397, 398-400 (1950); Southland Industries v. FCC, 69 App.D.C. 82, 99 F.2d 117 (1938); Saginaw Broadcasting Co. v. FCC, 68 App.D.C. 282, 285-87, 96 ......
  • Request a trial to view additional results

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