Black River Valley Broadcasts v. McNinch

• Decision Date: 21 November 1938
• Docket Number: No. 7170.,7170.
• Citation: 101 F.2d 235,69 App. DC 311
• Parties: BLACK RIVER VALLEY BROADCASTS, Inc., v. McNINCH et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

69 App. DC 311, 101 F.2d 235 (1938)

BLACK RIVER VALLEY BROADCASTS, Inc., v. McNINCH et al.

No. 7170.

United States Court of Appeals for the District of Columbia.

Argued October 13, 1938.

Decided November 21, 1938.

Rehearing Denied December 20, 1938.

Eliot C. Lovett, of Washington, D.C., for appellant.

Hampson Gary, William H. Bauer, Fanney Neyman, and Andrew G. Haley, all of Washington, D. C., for appellees.

Horace L. Lohnes and H. L. McCormick, both of Washington, D. C., for intervener.

Before GRONER, Chief Justice, and EDGERTON and VINSON, Associate Justices.

VINSON, Associate Justice.

This is an appeal from a decree of the District Court of the United States for the District of Columbia dismissing appellant's amended bill of complaint for an injunction.

The appellant, Black River Valley Broadcasts, Inc., was plaintiff below and will be so designated throughout this opinion. The appellees are members of the Federal Communications Commission, created and organized under the Act of June 19, 1934, Communications Act of 1934, 48 Stat. 1064, 47 U.S.C.A. § 151 et seq. They will be referred to herein as the Commission.

It appears from the record that on October 3, 1935, an application was filed by the Watertown Broadcasting Corporation (hereinafter designated Watertown) for authority to construct a radio station in Watertown, N. Y., and was heard before an examiner in January 1936. Prior to the hearing an identical application was filed by the Brockway Company (hereinafter called Brockway) and that company participated in the hearing upon the application of Watertown. On March 27, 1936, the examiner recommended that the application of Watertown be granted.

On April 8, 1936, plaintiff filed its application for authority to construct a radio station in the same city, which was scheduled with Brockway's for hearing before an examiner on June 23, 1936. About June 10, 1936, Brockway filed a petition to postpone the hearing upon its application to a date subsequent to September 1, 1936. This petition to postpone was granted. On June 23, 1936, the hearing upon the application of plaintiff was held before an examiner. Representatives of both Brockway and Watertown appeared at the hearing and cross-examined the witnesses who testified on behalf of plaintiff. The examiner submitted his report upon the application of plaintiff and recommended that it be granted. Exceptions having been filed to this report of the examiner and the favorable report of March 27th concerning Watertown's application, oral argument on both was heard before the Broadcast Division of the Commission on September 10, 1936. All of the interested parties, including Brockway, participated.

On September 22, 1936, the Commission entered its order, effective October 13, 1936, denying the application of Watertown and granting that of plaintiff. A construction permit was issued by the Commission, authorizing plaintiff to start construction of its station by December 13, 1936. Plaintiff started this construction work shortly after the effective date of the Commission's order, and practically completed the erection of the antenna during the month of November, 1936, at considerable expense.

About November 1, 1936, within the 20 day period provided by the Act, Watertown filed a petition for rehearing of its application and also that of plaintiff. On November 14, 1936, plaintiff filed an opposition to this petition for rehearing. About November 9, 1936, Brockway filed its petition to intervene. By that time Brockway was involved in two applications — one for the voluntary assignment of the license of WCAD from St. Lawrence University, and the other for a permit to move that station to Watertown, N. Y.

On December 2, 1936, at a general session of the Commission, the petition of Watertown for rehearing was granted and a de novo hearing was ordered on the applications of Watertown and plaintiff together with the applications of Brockway.

On January 27, 1937, Watertown filed an amendment to its application, requesting the identical facilities sought by plaintiff and covered by the permit issued to the latter company, and on March 10, 1937, the amended application of Watertown was designated for hearing. The Commission fixed May 19, 1937, as the date of hearing upon these several interrelated applications. Thereupon on March 23, 1937, plaintiff filed a petition for reconsideration of the Commission's action of December 2, 1936, which was denied by the Commission on April 14, 1937.

On May 8, 1937, plaintiff filed a bill of complaint for an injunction in the District Court of the United States for the District of Columbia, alleging that the Commission's order of September 22, 1936 granted a valid construction permit; that there was no additional order of the Commission entered which tended to postpone or extend the effective date of the order granting the construction permit; and, that the Commission, fifty days after the effective date of the grant, on its own motion, ordered a hearing de novo on the application of Watertown and plaintiff, to be heard together with the applications of Brockway. Plaintiff prayed that the Commission be enjoined from holding a hearing concerning the application of plaintiff for a construction permit and that the court declare that the construction permit issued to plaintiff is a valid authorization and was unaffected by the Commission's order of December 2, 1936, purporting to set it aside.

The Commission filed an answer to this bill in which it alleged that on or about October 30, 1936, pursuant to sec. 405 of the Communications Act of 1934, 47 U.S. C.A. § 405, and paragraph 106.31 of the Rules of the Commission, Watertown filed its petition for rehearing in the matter of the applications of plaintiff and Watertown; and that on December 2, 1936, the Commission granted the petition for rehearing of Watertown and set aside the order of the Broadcast Division of September 22, 1936, denying the application of Watertown and granting the application of the plaintiff, and directed that these applications be heard de novo before an examiner, together with the Brockway applications. It was further stated in the answer that the bill shows on its face that the Commission has not made any final decision with regard to plaintiff's application and that the bill seeks to have the court interfere with the lawful exercise of discretion of the Commission, a licensing and administrative body, which discretion has been exercised by it pursuant to authority conferred by law; that the bill of complaint shows on its face that plaintiff has not been and will not be irreparably injured; that plaintiff has a plain, speedy and adequate remedy at law under sec. 402(b) of the Communications Act of 1934, 47 U.S.C.A. § 402(b) which provides for appeal to this court from any final decision of the Commission. The Commission then prayed that the court separately hear and dispose of the defenses in point of law to the bill therein presented in advance of hearing upon the merits and that the bill of complaint be dismissed.

The District Court dismissed the plaintiff's bill of complaint after hearing the matters of law raised in the answer. Whereupon the present appeal was taken.

We think that plaintiff's bill was properly dismissed as it does not set up a cause of action cognizable in equity. The Commission is an administrative agency set up by Congress to determine under statutory direction the rights of the people of the United States to have the best possible radio service. The interest, convenience, and necessity of the public is an essential test for the privilege of operating a radio station. This determination is, by the Act of 1934, lodged in the Commission. It is the only proper agency to decide these public questions, and its findings, under the law, must be maintained if they are not arbitrary or capricious, or erroneous in law, and are based upon substantial evidence. Federal Radio Commission v. Nelson Brothers Bond & Mortgage Co., 289 U.S. 266, 53 S.Ct. 627, 77 L.Ed. 1166.

In the Act, Congress has made this court the sole appellate body (with right to petition for certiorari to the Supreme Court) whereby the action of the Commission can be tested and has provided that any party aggrieved may have its rights reviewed here.¹ It is well settled that the exclusive remedy provided by the statute to test the Commission's action is vested in this court by appeal, from which it follows that other courts do not grant equitable relief in such cases. In Sykes v. Jenny Wren Co., 64 App.D.C. 379, 382, 78 F.2d 729, 732, 104 A.L.R. 864, certiorari denied 296 U.S. 624, 56 S.Ct. 147, 80 L.Ed. 443, we held "that the remedy by appeal provided by section 402(b) of the Communications Act of 1934, supra, was the exclusive remedy provided by statute for the review of plaintiff's complaint. We think accordingly that the lower court was without jurisdiction over the cause of action asserted by plaintiff in the case brought by it for an injunction." Later, we reiterated this conclusion in Monocacy Broadcasting Co. v. Prall, 67 App.D.C. 176, 90 F.2d 421. Other jurisdictions have reached the same conclusion. The court in American Bond & Mortgage Co. v. United States, 7 Cir., 52 F.2d 318, 320, stated: "We are likewise satisfied that appellants are not in a position to attack an order of the Radio Commission which was within its power to make, without first exhausting the remedies given them by the Radio Act, to wit, by appealing to the Court of Appeals of the District of Columbia." White v. Johnson, 282 U.S. 367, 51 S.Ct. 115, 75 L.Ed. 388; White v. Federal Radio Commission, D.C., 29 F.2d 113.

It has long been the established rule that proceedings in equity for an injunction cannot be maintained where the complaining party has a plain, adequate, and complete remedy at law for the right sued upon. Congress recognized this ancient rule when it passed sec. 267 of the...