FCC v. Schreiber
Decision Date | 04 May 1964 |
Docket Number | No. 17990.,17990. |
Citation | 329 F.2d 517 |
Parties | FEDERAL COMMUNICATIONS COMMISSION, Appellant-Cross-Appellee, v. Taft B. SCHREIBER and MCA, Inc., Appellees-Cross-Appellants. |
Court | U.S. Court of Appeals — Ninth Circuit |
Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Sherman Cohn, Attorney, Department of Justice, Max D. Paglin, General Counsel, John J. O'Malley, Jr., Upton K. Guthery, and Barbara B. O'Malley, Attorneys, Federal Communications Commission, Washington, D. C., and Francis C. Whelan, U. S. Atty., Los Angeles, Cal., for appellant-cross-appellee.
Beilenson, Meyer, Rosenfeld & Susman, Allen E. Susman, and Jeffrey L. Nagin, Beverly Hills, Cal., for appellees-cross-appellants.
Before JERTBERG and BROWNING, Circuit Judges, and FOLEY, Jr., District Judge.
Appellant-Cross-Appellee will be referred to as the Commission and Appellees-Cross-Appellants jointly as Appellees and separately as MCA and Schreiber.
In the order, the hearing examiner designated to conduct the investigatory proceedings was authorized to receive evidence and make a record thereof, to administer oaths, subpoena witnesses, to compel their attendance, and compel the production of documentary evidence.
The order closed with this paragraph:
"IT IS FURTHER ORDERED, That the said investigatory proceeding shall be a public proceeding except that the said presiding officer may order non-public sessions of the said investigatory proceeding where and to the extent that the public interest, the proper dispatch of the business of said proceeding, or the ends of justice will be served thereby."
The record reflects that while public sessions were being held in Los Angeles, California, the examiner issued a subpoena duces tecum to Schreiber, MCA's Vice President, commanding him to appear to testify and to produce documentary evidence described in the margin as Annex A and B.2
At the time and place appointed, Schreiber appeared with counsel and produced the list in Annex A, but refused to submit the material subpoenaed in Annex B, although then and there in his possession, unless the Commission would accept said material on a confidential basis, contending that if the material was revealed at a public hearing, trade secrets would be disclosed. Schreiber further refused to testify while the hearing was public and unless his counsel be given the right to object and to state grounds of objection on the record. The examiner refused to close the hearing and to accept the subpoenaed material as confidential and directed that Schreiber's counsel not participate in the proceedings other than by being present and advising Schreiber.
Appellees petitioned the full Commission for review. The examiner was affirmed on all points and Schreiber was ordered by the Commission to produce Annex B and to testify publicly regarding the same.3
When Schreiber maintained the same position, the Commission sought enforcement in the court below pursuant to 47 U.S.C. §§ 401(a), 401(b), 409(f), and 409(g).
The learned trial Judge filed an opinion January 22, 1962, F. C. C. v. Schreiber, D.C., 201 F.Supp. 421, and on March 2, 1962, filed his Findings of Fact, Conclusions of Law and Order.
The Conclusions of Law and Order are printed in the margin.4
We will first deal with the appeal by the Commission and will state the questions and errors specified in the language of the Commission set forth in its opening brief.
1. Whether the District Court erred in finding and concluding that any further
interrogation of appellees and any documents produced by them shall be taken in a private, non-public proceeding and held by the Commission on a confidential basis; that the Commission must move the District Court for an order allowing the documents and testimony to be made public; and that appellees shall have the right to oppose such a motion.
2. Whether the District Court erred in concluding that under Section 6(a) of the Administrative Procedure Act, 5 U.S. C. § 1005(a), appellees have the following rights:
1. The District Court erred in its Finding of Fact XI.
2. The District Court erred in its Conclusion of Law VII(b) and VII(c).
We will consider these questions and specifications of error in the order set forth above.
In his decision (pp. 425-426 of 201 F. Supp.), the Trial Judge stated:
The Trial Court's Finding of Fact No. XI reads:
"The record herein, including but not limited to, the testimony in the extensive hearings held by the Commission in its network programming inquiry, make it necessary that in protection of respondents\' rights and to preclude disclosure of trade secrets of which competitors might take advantage, all further interrogation of, and all further testimony given by, respondents shall be given in non-public sessions, and shall be retained and maintained in confidence by the Commission."
The Commission does not question that the Trial Court had the authority to impose safeguards to prevent the possible disclosure of trade secrets, while ordering that appellees appear, testify and disclose the material sought by the Commission, but contends that the District Court abused its discretion and therefore erred.
In Chapman v. Maren Elwood College, 9th Cir., 1955, 225 F.2d 230, at Page 231, we stated:
In Goldberg v. Truck Drivers Local Union No. 299, 6th Cir., 1961, 293 F.2d 807, at Page 814, the Court states:
In F. C. C. v. Cohn, S.D.N.Y.1957, 154 F.Supp. 899, at Page 908, the Court held:
In Delno v. Market St. Ry. Co., 9th Cir., 1942, 124 F.2d 965, at Page 967, this Court said:
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