Greater Boston Television Corporation v. FCC, 17785
| Citation | 463 F.2d 268 |
| Decision Date | 29 December 1971 |
| Docket Number | No. 17785,17788,23154,23172.,23159,17785 |
| Parties | GREATER 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. CHARLES RIVER CIVIC TELEVISION, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WHDH, Inc., Boston Broadcasters Inc., Intervenors. WHDH, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Boston Broadcasters, Inc., Intervenor. GREATER BOSTON TV CO., Inc., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WHDH, Inc., Boston Broadcasters Inc., Intervenors. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
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J. Joseph Maloney, Jr., Boston, Mass., for appellant and intervenor Greater Boston Television Corp.
William J. Dempsey, William C. Koplovitz, John H. Dempsey, Dempsey & Koplovitz, Washington, D. C., for appellant WHDH, Inc.
Harry M. Plotkin, Thomas Schattenfield, William L. Fishman, Washington, D. C., for appellant Charles River Civic Television, Inc.
Richard E. Wiley, Max D. Paglin, General Counsel, Daniel R. Ohlbaum, Associate General Counsel, Ruth V. Reel, Herman I. Branse, Ernest O. Eisenberg, Washington, D. C., for appellee FCC.
William J. Dempsey, Harry J. Ockershausen, William C. Koplovitz, Washington, D. C., for WHDH, Inc., intervenor.
Henry Geller, John H. Conlin, Lenore G. Ehrig, Edward J. Kuhlmann, Richard E. Wiley, Gen. Counsel, for appellee FCC.
Donald E. Ward, Benito Gaguine, Washington, D. C., for Boston Broadcasters, Inc., intervenor.
Vincent B. Welch, Gerald S. Rourke, Welch & Morgan, Washington, D. C., for Hampton Roads Television Corp. and Community Broadcasting of Boston, Inc., amici curiae.
Before TAMM, LEVENTHAL and MacKINNON, Circuit Judges.
The latest turn in the Boston-TV Channel 5 controversy came on August 20, 1971, when the Federal Communications Commission filed a Request with this court to recall its mandate of June 23, 1971, affirming the FCC's order awarding a construction permit to Boston Broadcasters, Inc. (BBI). The Request was made for the purpose of permitting oral argument before the FCC to consider whether to reopen the comparative proceeding as to the action it should take in the light of information concerning charges that one of BBI's principals had violated securities laws in connection with a sale of unregistered stock of another company.
On one level the matter involves the conflicting objectives of finality of administrative disposition, and flexibility to serve the public interest by adjusting dispositions to take account of new material. On another level, the problem is one of sound relationships between a regulatory agency and a reviewing court. That broad reference suffices to give us a general bearing, and we proceed to the particular situation.
The mandate of affirmance sought to be recalled issued as the result of our opinion in Greater Boston Television Corp. v. F.C.C., 143 U.S.App.D.C. 383, 444 F.2d 841 (1971). The prior proceedings related there may be briefly capsuled. The applications filed in 1954 for Channel 5 were resolved in 1957 with a grant to WHDH, Inc., which began broadcasting that year. In 1958 we remanded for an evidentiary hearing on the possibility of an infirmity in the award due to improper ex parte contacts with the FCC's Chairman by Robert Choate of WHDH. In 1960 the FCC held that the grant to WHDH was voidable for such contact, granted temporary authorization for WHDH to continue broadcasting and reopened for a comparative proceeding. We approved that plan in 1961.
In 1962 the FCC again awarded a construction permit to WHDH, but granted an operating license for only four months. In 1963, the FCC designated the WHDH application for renewal for comparative hearing with applications filed during a specified 60-day period by BBI and others. In 1964 we suspended consideration of the appeals from the 4-month license and remanded for consideration of the impact of Mr. Choate's death. We authorized the FCC to consolidate this consideration with the comparative hearing already scheduled.
In 1966 the Hearing Examiner issued an initial decision in favor of granting renewal to WHDH. On January 23, 1969, the Commission reversed the decision of the Hearing Examiner, and entered an order denying the application of WHDH and granting that of BBI. The FCC duly denied rehearing, but it stayed the effectiveness of its decision and order until 30 days "after final disposition of any judicial review" of that order.1
The case was argued to us May 25, 1970, and on November 13, 1970, we filed a judgment of affirmance, and issued in support thereof our opinion,2 cited above.
On November 30, 1970, WHDH filed a petition for rehearing and suggestion for rehearing en banc. Its motion for acceptance of a late filed petition was duly granted.
On January 7, 1971, WHDH filed a motion to hold in abeyance consideration of its petition for rehearing pending action by the FCC on its petition to the FCC to request this court to remand the case. WHDH submitted that newly-discovered evidence showed that a commissioner purporting to make up the necessary FCC majority had not voted in support of the FCC's 1969 decisions and order. Our order of February 16, 1971, denied both the petition for rehearing and the motion to hold in abeyance.
On March 3, 1971, the FCC issued a memorandum and order denying the WHDH petition requesting the FCC to apply to this court for a remand. On March 10, 1971, WHDH filed in this court its own motion to remand; this was denied on April 15, 1971.3
Our order of April 15, 1971, also made provision for stay of mandate to permit WHDH to seek Supreme Court consideration. We ordered that the stay be revoked unless WHDH filed a petition for certiorari on or before April 23, 1971, stating that was a date "we can be confident will permit Supreme Court disposition this term."
Certiorari was sought by WHDH on April 23, 1971. On June 14, 1971, the Supreme Court denied the certiorari petitions of both WHDH and the other appellants. The mandate of this court issued to the FCC on June 23, 1971. No stay of mandate was sought pursuant to either Supreme Court Rule 25(2) or FRAP 41(b).
On July 23, 1971—the 30th day following its receipt of this court's mandate—the FCC adopted an order declaring that the stay it had ordered exactly two years earlier (see note 1) had "automatically vacated." It stated that WHDH should be afforded a reasonable opportunity to wind up its affairs and authorized WHDH to continue operating pending further order of the Commission. It issued construction permit BPCT-3170 to BBI on July 23, 1971, and a modified permit on July 29, 1971. Thereafter BBI began construction of its station in accordance with its permit.
The FCC filed on August 20, 1971, a Request that this court recall its mandate issued June 23, 1971, and remand for the limited purpose of authorizing the Commission to hear oral argument en banc to consider what procedure it should follow in light of a civil action brought by the SEC against Nathan H. David, a principal in BBI.
The papers before the FCC, filed in this court by leave, show that on April 2, 1971, BBI advised the Commission and all parties of the filing of an action against Mr. David by one David Freedman, alleging violation of security laws in connection with Freedman's purchase of unregistered stock in Synergistics, Inc., from certain officers and directors of that company in a transaction arranged by Mr. David. On April 21, 1971, WHDH filed with the Commission a petition for further proceedings based on these allegations and the lawsuit. Various additional pleadings were filed. On July 29, 1971, WHDH filed a copy of the SEC's complaint filed that day against Synergistics, Inc., which listed Mr. David as a defendant.
The Commission's Request states that the Commission has made no assessment of these filings, that they are relevant on their face because the Commission's decision attached substantial importance to the criterion of integration (participation in management by owners) and Mr. David's participation entered into its determination favoring intervenor BBI with respect to this criterion. The Request further states that the Commission recognized the need for expedition, and would, if authorized by the court, hold argument and decide within a month whether reopening the comparative case would serve the public interest and what other procedures might be appropriate.
BBI filed an Opposition to the FCC's Request.4 WHDH filed a Response stating that it was bringing these matters to the attention of the Supreme Court—where it had on July 9, 1971, filed a petition for rehearing of the denial of certiorari—and that the request should be both broader as to the scope of remand than had been sought by the FCC and should be addressed "initially" to the Supreme Court.
On September 30, 1971, this court entered an order as to further procedure which advised that we proposed to defer action until the Supreme Court acted on the WHDH petition for rehearing. We also requested that, in the event such rehearing was denied by the Supreme Court, the Commission file with this court a supplement to its Request setting forth
(a) A submission of the respects if any in which the Commission considers that the actions of intervenor BBI (including its officers, directors and controlling stockholders) have compromised the integrity of either the administrative process or the judicial process by reason of any...
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