Fidelity Television, Inc. v. F. C. C., 73-2213

• Citation: 163 U.S.App.D.C. 441,502 F.2d 443
• Decision Date: 02 August 1974
• Docket Number: No. 73-2213,73-2213
• Parties: FIDELITY TELEVISION, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, RKO General, Inc., Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 443

502 F.2d 443

163 U.S.App.D.C. 441

FIDELITY TELEVISION, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, RKO General Inc., Intervenor.

No. 73-2213.

United States Court of Appeals, District of Columbia Circuit.

Argued June 19, 1974, Order July 3, 1974.

Decided Aug. 2, 1974.

Joseph Volpe, III, Counsel, F.C.C., with whom John W. Pettit, Gen. Counsel, and Joseph A. Marino, Associate Gen. Counsel, F.C.C., were on the motion to dismiss, for appellee.

Harold David Cohen, Washington, D.C., with whom John J. Duffy, Washington, D.C., was on the response to the motion to dismiss, for intervenor.

Walter H. Sweeney, Washington, D.C., with whom Edward P. Morgan, Washington, D.C., was on the opposition to the motion to dismiss for appellant.

Before BAZELON, Chief Judge, and MacKINNON and WILKEY, Circuit judges.

PER CURIAM:

The history of the administrative proceeding out of which this case arises is one of inordinate delay which has considerably tried this court's patience. Several panels of this court, at differing stages, have reviewed the underlying controversy in connection with a petition for writ of mandamus brought by Fidelity Television, Inc., to compel the Federal Communications Commission to issue a decision in that proceeding which had been pending before it for almost eight years. The court ultimately dismissed the mandamus petition as moot when the Commission finally rendered a decision on 6 December 1973.

Fidelity subsequently filed a petition to review the 6 December order in this court. Contending that the decision is not a final order after all, the Commission now moves to dismiss the petition for lack of jurisdiction. We hold that the Commission's decision of 6 December contituted a final order for purposes of judicial review, and accordingly deny the motion to dismiss.

I. HISTORY OF THE LOS ANGELES PROCEEDING

There are in fact two Commission proceedings involved in this matter. The 6 December order at issue emanated from what we shall refer to as the Los Angeles proceeding, which was initiated in 1965 by the filing of an application by RKO General, Inc., for renewal of its license to operate station KHJ-TV in Los Angeles ¹ and of the mutually exclusive application by Fidelity for a construction permit to operate on the same frequency. ² Under consideration in another proceeding still pending before the Commission, which we shall designate the Boston proceeding, are a license renewal application filed by RKO for station WNAC-TV in Boston and mutually exclusive applications filed by two other corporations. ³

Comparative hearings were held in the Los Angeles proceeding in 1967, which culminated in a decision by the Hearing Examiner ⁴ on 13 August 1969, five years ago, awarding the license to Fidelity as the preferable applicant on a comparative basis. ⁵ Pending appeal to the Commission, however, RKE was permitted to continue operation of KHJ-TV pursuant to 47 U.S.C. 307(d); ⁶ that interim authority continues to date. In addition to consideration of RKO's past service and comparison of RKO and Fidelity in the areas of local ownership, diversification of mass communications media, and local support, the Hearing Examiner's decision was based in part on evidence of alleged coercive reciprocal trade practices between RKO and its parent corporation, General Tire and Rubber Company, ⁷ as those practices affected RKO's qualifications to operate KHJ-TV. ⁸ That evidence of anti-trust activity persuaded the Department of Justice to file a brief amicus curiae with the Commission urging it to disqualify RKO as a licensee.

Evidence of RKO's alleged antitrust activities and other corporate misconduct was also adduced on a broader scope in hearings in the Boston proceeding, which began in 1971, to determine whether RKO should be disqualified as a licensee of WNAC-TV. On the basis of the more extensive evidence being produced in that proceeding, the Commission's Broadcast Bureau petitioned the Commission to reopen the record in the Los Angeles proceeding-- which was then before the Commission on review of the Hearing Examiner's decision-- to introduce the additional evidence.

By order of 2 August 1971 ⁹ the Commission denied the Bureau's request, resolving instead to proceed expeditiously with its review. The Commission stated that the Boston proceeding was immaterial to its evaluation of the record in the Los Angeles proceeding and the Hearing Examiner's decision, and that it would become material only if the Commission reversed the Hearing Examiner and concluded on the basis of the Los Angeles record that RKO was the preferable applicant. The order provided that if the Commission did determine that RKO was to be preferred, award of its license would be subject to the outcome of the Boston proceeding and its revelations concerning the antitrust allegations. ¹⁰

It is significant to note for purposes of the motion before us that the Commission's 1971 order neither consolidated the two proceedings, nor permitted the record to be reopened for receiving the antitrust evidence from the Boston proceeding, though it did permit Fidelity to participate in that aspect of the Boston proceeding which pertained to RKO's alleged antitrust activity. ¹¹

In August 1971 RKO filed with the Commission, and subsequently supplemented, a petition to dismiss Fidelity's application or, alternatively, to enlarge the issued and reopen the record for further hearings, alleging that Fidelity had failed timely to report to the Commission changes in its corporate structure and acquisition of certain newspaper interests by one of its stockholders. On 28 September 1971 the Commission ordered that the issue be addressed at oral argument, which was held on 12 October 1971, over two years after the Hearing examiner's decision. The Commission did not act on RKO's petition until two years after argument, when it dismissed the petition as moot. ¹²

On 22 March 1973, nearly two years after the Commission's announced decision (2 August 1971) to proceed expeditiously with its review of the Hearing Examiner's decision, Fidelity filed in this court a petition for writ of mandamus to compel the Commission to reach a final decision. The sole explanation for the delay offered by the Commission was that it was simply adhering to the procedure it had announced in its order of 2 August 1971. As the Commission then interpreted that order, it had decided to await the termination of the Boston proceeding before reviewing the Hearing Examiner's decision in the Los Angeles proceeding.

In view of the Commission's unequivocal statement in its 2 August order that it would 'proceed with a disposition of the Los Angeles proceeding on the basis of the evidence now of record,' ¹³ and that the Boston proceeding would be relevant only if, after review of that record, the Commission reversed the Hearing Examiner on the merits, ¹⁴ this court concluded in an order released 11 June 1973 ¹⁵ that the Commission's decision in the Los Angeles proceeding had been unreasonably delayed in contravention of section 10(e) of the Administrative Procedure Act. ¹⁶ But, 'being satisfied that (the Commission would) act in accord with' that finding 'without the necessity of the issuance of a writ of mandamus' to compel a final decision, the court ordered the petition held in abeyance for 30 days during which time the Commission was directed to file a statement of the action it had taken in the matter.

Exactly 30 days later, the Commission represented to the court that on 2 July it had 'instructed the staff to prepare a written decision as expeditiously as possible.' On the basis of that representation, and in the belief that it was made in good faith and that the Commission intended to fulfill its directive, the court denied the petition for writ of mandamus on 20 September 1973, 'without prejudice to its renewal in the event a final decision on petitioner's application is further unreasonably delayed'.

Two months later, when it had been in excess of four years since the Hearing Examiner's initial decision, over five months since this court's determination that the final decision had been unreasonably delayed, and more than four months from the date the Commission ordered its staff to prepare a decision, Fidelity renewed its petition for writ of mandamus in accordance with this court's order of 20 September 1973. On 10 December, as a ruling on Fidelity's petition was about to issue, the court received a letter from Fidelity's counsel notifying the court that the Commission, by a three-to-two vote, rendered a decision reversing the, hearing Examiner. ¹⁷ The commission concluded that RKO was the preferable applicant on a comparative basis, ¹⁸ and in view of that conclusion dismissed as moot RKO's petition to dismiss Fidelity's application. ¹⁹ Commissioner Reid joined in the decision by Commissioner Robert E. Lee. Chairman Burch, who had since left the Commission, concurred in the result only. Commissioners Johnson and H. Rex Lee, who have since resigned, vigorously dissented. ²⁰

Fidelity's notification, a copy of which was sent to counsel for the Commission and for RKO, requested the court to dismiss its renewed petition for writ of mandamus 'as moot' in light of the 6 December order. The Commission did not respond in any fashion to the notification or the request to dismiss. Accordingly, the court on 21 December dismissed the renewed petition for mandamus as moot. The Commission now contends, in the instant motion filed two months after the petition for review was filed by Fidelity, that its 6 December order is not a final decision and therefore is not properly before the court at this time.

II. FINALITY OF THE ORDER OF 6 DECEMBER 1973

This court's jurisdiction over decisions by the Commission is controlled by section 402(b)(1) of the Federal Communications Act of 1934, as amended, ²¹ section 10 of the Administrative Procedure Act, ²² and judicial ...