Greater Boston Television Corporation v. FCC

Citation118 US App. DC 162,334 F.2d 552
Decision Date16 April 1964
Docket Number17788.,No. 17785,17785
PartiesGREATER BOSTON TELEVISION CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WHDH, Inc., a Massachusetts Corporation, Intervenor. WHDH, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Greater Boston Television Corporation, a Massachusetts Corporation, Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

Before PRETTYMAN, Senior Circuit Judge, and BURGER and WRIGHT, Circuit Judges.


In April, 1957, the Federal Communications Commission, after a long comparative hearing, awarded to WHDH, Inc., a construction permit for a television station on Channel 5 in Boston. Its findings were elaborate and detailed. They showed, inter alia, that one important factor for favoring WHDH on broadcast experience and for rating it favorably on civic participation and integration of ownership with management was the abilities and activities of its president, Mr. Choate. The award was appealed (Nos. 13896 and 13899). While the appeals were pending, suggestions were newly made that ex parte contacts with the Commission had been sought by some of the parties in the course of the Commission proceedings. After briefs and argument the court announced1 that it found no error in the award but that the newly suggested ex parte contacts must be explored, and it remanded the case for that limited purpose, retaining jurisdiction.

After some complicated procedural steps,2 including an intensive hearing before the Honorable Horace Stern as Special Hearing Examiner, the Commission set aside the award to WHDH, reconsidered and reevaluated the applicants in light of the new factors, and again awarded the construction permit to WHDH. In the course of this reexamination the Commission, contrary to its Special Hearing Examiner, found that Choate had made improper, but ineffectual, approaches to the Commission Chairman and ascribed a demerit to WHDH on that account. At the same time, and in the same order, the Commission also awarded WHDH a four-month operating license for the station.3 This was in September, 1962. The appeals now pending before us are from that decision. Thus there are now before the court for review (1) the 1957 award of the construction permit to WHDH and (2) the 1962 award of the four-month operating license to WHDH.

The court is now advised that Mr. Choate died on December 21, 1963, after these appeals had been argued. We conclude that under such circumstances the proceedings should be remanded to afford the Commission opportunity to consider whether and to what extent these changed conditions affect the awards to WHDH.4 This is indicated in a case where, as here, awards appear to have been made upon a close margin in a closely contested comparative consideration and because the Commission's findings reflect that the late Mr. Choate was an important factor favorable to WHDH and also was the cause of the demerit against that applicant. Obviously the resultant net assay is initially for the Commission. The case will therefore be remanded for such reconsideration.

The original awards of the construction permit and of the four-month license are before the court in the pending appeals, but when the remand presently ordered is effectuated those awards will again be before the Commission for reconsideration. The court does not prescribe the course or form of the proceeding on reconsideration, nor does it intimate any suggestion as to its result, e. g., whether these initial awards be given one or the other of the present parties or whether no such awards be now given.

The proceeding for renewal of WHDH's license5 is also...

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5 cases
  • Greater Boston Television Corporation v. FCC
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 29, 1971
    ...against that applicant,"30 it remanded for FCC consideration of the significance of Mr. Choate's death. Greater Boston Television Corp. v. FCC, 118 U.S.App.D.C. 162, 334 F.2d 552 (1964). 5. Remand withheld when new items, though material, were not central and conditions could be inserted to......
  • Greater Boston Television Corporation v. FCC
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 13, 1970
    ...on a comparative basis assessing the public interest in the light of the absence of Mr. Choate. Greater Boston Television Corp. v. F.C.C., 118 U.S.App. D.C. 162, 334 F.2d 552 (1964). B. The Current Comparative The consolidated comparative proceeding authorized by this court began in May, 19......
  • Beverly Hills Fed. S. & L. Ass'n v. Federal Home L. Bk. Bd.
    • United States
    • U.S. District Court — Central District of California
    • April 25, 1973
    ...into such inaction a positive meaning regarding the proper interpretation of the Act. See, WHDH, Inc. v. Federal Communications Commission, 118 U.S.App.D.C. 162, 334 F.2d 552 (D.C.Cir. 1970). Moreover, in the context of the present case, it cannot be said that the Webb group has been prejud......
  • James J. Williams, Inc. v. United States
    • United States
    • U.S. District Court — Eastern District of Washington
    • March 31, 1965
    ...commission was ordered because of circumstances which arose after the Commission's order was Greater Boston Television Corporation v. F. C. C., 118 U.S.App.D.C. 162, 334 F.2d 552. The doctrine of equity whereby in cases involving mistake or accident an order or a judgment may be set aside a......
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