Hearst Radio v. Federal Communications Commission, 9599.

• Citation: 167 F.2d 225
• Decision Date: 12 January 1948
• Docket Number: No. 9599.,9599.
• Parties: HEARST RADIO, Inc., v. FEDERAL COMMUNICATIONS COMMISSION.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

167 F.2d 225 (1948)

HEARST RADIO, Inc., v. FEDERAL COMMUNICATIONS COMMISSION.

No. 9599.

United States Court of Appeals District of Columbia.

Argued November 21, 1947.

Decided January 12, 1948.

Mr. William J. Dempsey, of Washington, D. C., with whom Mr. Thomas P. Littlepage, Jr., of Washington, D. C., was on the brief, for appellant.

Mr. Benedict P. Cottone, General Counsel, Federal Communications Commission, of Washington D. C., with whom Mr. Harry M. Plotkin, Assistant General Counsel, Federal Communications Commission, Mr. Max Goldman, Assistant Chief, Litigation and Administration Division, Federal Communications Commission, and Mr. Richard A. Solomon, Counsel, Federal Communications Commission, all of Washington, D. C., were on the brief, for appellee.

Before EDGERTON, CLARK, and PRETTYMAN, Associate Justices.

PRETTYMAN, Associate Justice.

Appellant is the owner and duly licensed operator of radio station WBAL. It brought a civil action under the Administrative Procedure Act¹ for a declaratory judgment² and incidental relief. The District Court granted the defendant Commission's motion to dismiss. This appeal is from that judgment.

Under date of March 7, 1946, the Commission published a report entitled "Public Service Responsibility of Broadcast Licensees", commonly referred to as the "Blue Book". In one section of that report it said, "In recent years, the purchase of an existing standard broadcast station has become a more common means of entering broadcasting than the erection of a new station. The case of Station WBAL, Baltimore, illustrates the extent to which the service rendered by a station may be affected by a transfer or assignment of license to a purchaser, and the need for integrating Commission transfer and renewal procedures." Then followed what purported to be descriptions of the operation of the station when under the ownership of the Consolidated Gas, Electric Light and Power Company of Baltimore, and of its operation under the present owner. As a basis for the former, the Commission used "A Description of WBAL, Baltimore," prepared by the then-owner of the station for submission to the Commission in August, 1927, when the Commission was established and WBAL was seeking to procure a "cleared channel". For its description of the present operation of the station, the Commission used an analysis of the program logs of the station for the week beginning Sunday, April 23, 1944, with a corollary list of programs available to the station through the National Broadcasting Company.

In its complaint in the District Court, the present owner of WBAL alleged that the Blue Book has been the subject of widespread public discussion; that the statements in it tend to expose the present owner of WBAL to public shame, obloquy, contumely, odium, contempt, ridicule, aversion, degradation and disgrace, and tend to destroy the confidence of the public and those with whom the station does business in the radio industry and otherwise, in its ability to operate the station; that "The defamatory description * * * is a false and distorted misrepresentation based upon deliberate suppression of facts found in the Commission's own records"; and that the "improper condemnation" has resulted in direct damage and prejudice to the plaintiff. These general allegations were supported by specifications in detail. The plaintiff also alleged that its application for a renewal of its license is pending before the Commission, but that, as a result of the statements in the Blue Book, another applicant has applied for the license; that this latter application has been consolidated for hearing with the plaintiff's application for renewal; and that the outstanding charges in the Blue Book will result in severe prejudice to the plaintiff in proceedings on its renewal application.

The complaint contained three prayers. The second and third related to Commission consideration of the application for the renewal of the license. Obviously, judicial review of Commission action on the application for renewal must await such action. The District Court so held, and we agree.

The first paragraph of the prayers, however, does not relate to the application for renewal, but prays that the court adjudge, by way of declaratory judgment, that appellant is entitled as a matter of legal right to a withdrawal of the unwarranted charges and misrepresentations contained in the Blue Book. Appellant's argument is that the charges in the Blue Book were false and known to be false, that they caused appellant damage, and that their publication, therefore,...