Johnston Broadcasting Co. v. Federal Commun. Com'n

• Decision Date: 04 May 1949
• Docket Number: No. 9866.,9866.
• Citation: 175 F.2d 351
• Parties: JOHNSTON BROADCASTING CO. v. FEDERAL COMMUNICATIONS COMMISSION (BEACH, Intervenor).
• Court: U.S. Court of Appeals — District of Columbia Circuit

175 F.2d 351 (1949)

JOHNSTON BROADCASTING CO. v. FEDERAL COMMUNICATIONS COMMISSION (BEACH, Intervenor).

No. 9866.

United States Court of Appeals District of Columbia Circuit.

Argued January 12, 1949.

Decided May 4, 1949.

COPYRIGHT MATERIAL OMITTED

Mr. Franklin K. Lane, Washington, D. C., with whom Mr. Orville H. Walburn, Washington, D. C., was on the brief, for appellant.

Mr. Richard A. Solomon, Washington, D. C., Counsel, Federal Communications Commission, with whom Mr. Benedict P. Cottone, General Counsel, Mr. Max Goldman, Acting Assistant General Counsel, and Mr. Dee W. Pincock, Counsel, Federal Communications Commission, were on the brief, for appellee.

Mr. John P. Southmayd, Washington, D. C., with whom Messrs. Ben S. Fisher and Charles V. Wayland, Washington, D. C., were on the brief, for intervenor.

Before CLARK, PRETTYMAN and PROCTOR, Circuit Judges.

PRETTYMAN, Circuit Judge.

Two applications, one for a permit to construct a new radio broadcasting station and the other for changes in the frequency and power of an existing station, were presented to the Commission, one by Johnston Broadcasting Company and the other by Thomas N. Beach.¹ The applications were mutually exclusive, both being for operation on the same frequency. The Commission set them for a comparative hearing.

Johnston moved that the Beach application be rejected, on the ground that it failed to meet the statutory requirements for consideration. That is its first point upon this appeal. The Commission made findings of fact, conclusions of law, and a decision, which was to award a permit to Beach. Johnston assails the findings, conclusion and decision.

The form of application promulgated by the Commission requires certain engineering information. This form is supported by requirements in regulations adopted by the Commission. Beach executed the affidavit on his application on August 24, 1946. Where the prescribed form called for engineering data, the requirement was met with the notation "See Engineering Report attached hereto." As a matter of fact, the engineering material had not then been prepared and thus was not then attached. This material was completed about September 30, 1946. It was sworn to by the engineer who prepared it. The application, with the engineering data attached, was filed on October 2, 1946.

The statute provides that the Commission may grant a license only upon an application made in writing,² and that an application must be sworn to by the applicant.³ These statutory provisions are peremptory — "The Commission may grant licenses, renewal of licenses, and modification of licenses only upon written application therefor received by it: * * * Such application and/or such statement of fact shall be signed by the applicant and/or licensee under oath or affirmation. * * No license shall be issued * * * for the operation of any station * * * unless a permit for its construction has been granted by the Commission upon written application therefor. * * * Such application shall be signed by the applicant under oath or affirmation."

Two propositions, which are the premises from which the conclusion to this point in the controversy must be drawn, are perfectly clear. (1) The engineering data was not sworn to by the applicant. No one can swear to an event which has not yet transpired, or to material which is not yet in existence. (2) By statutory requirement, an affidavit by the applicant is a requisite to a valid application.

So much being clear, the next inquiries are as to the meaning of the statutory requirement for an affidavit, and as to the result of a failure to meet that requirement.

When the statute says that there must be an affidavit to an application, it must mean that the contents of the application must be sworn to. It certainly does not mean that there could be merely an affidavit on a blank form. The statute says that the contents of the application shall be those prescribed by Commission regulations.⁴ Thus, it requires that the contents of the application, as prescribed by the Commission by regulation, must be supported by an affidavit of the applicant. Engineering material was part of the prescribed contents.

Consideration of the purpose of the affidavit sheds light upon the meaning of the requirement. Congress evidently meant that an applicant must assume responsibility for the accuracy of the information given on his application. It is said that an ordinary applicant may not be able to swear to the accuracy of engineering or accounting or legal data. But an affidavit, in its ordinary sense and usage, may be upon information and belief. In such case, the affiant does not guarantee the accuracy of the data, but he does assume the responsibility of being satisfied upon the best of his information and belief that the data is accurate. Even this sort of affidavit is a serious responsibility and requires that the applicant act in good faith, upon his best information and his bona fide belief.

It is suggested that the statutory requirement for an affidavit is for the convenience of the Commission and that the Commission, in the exercise of its broad administrative discretion, may waive the requirement. But Congress imposed that requirement and put no qualification in it. There may be a question as to what the requirement means, but once that meaning is ascertained, it must be met. The Commission has no authority to waive it. Congress did not leave it to administrative discretion.

We think, therefore, that it is clear that the statutory requirement means that the contents of the application must be supported by the affidavit of the applicant; that the engineering data was required as part of the contents of the application; that the Commission had no authority to waive the requirement; and that this application did not meet the requirement. This brings us to consideration of the necessary effect of a failure to comply with this statutory provision. Must the Commission reject such an application? Or may it permit the application to be amended? Or may it consider the affidavit of the engineers a sufficient substitute for the affidavit of the applicant?

The answer is indicated by the rules of law which have been established in respect to other statutes which have required verification of pleadings or other papers as a requisite to their consideration. The statute which created the Court of Claims and fixed its jurisdiction provided: "The said petition shall be verified by the affidavit of the claimant, his agent or attorney."⁵ Soon after its creation, the court had to decide whether verification was jurisdictional.⁶ An unverified petition was filed, the United States answered, and the time for filing a new complaint expired. Petitioner then sought to supply the verification. The United States moved to dismiss the complaint, upon the ground that the court had no jurisdiction upon an unverified petition. The court held that the answer waived verification, so far as it could be waived, and further that the lack of verification could be supplied; it granted petitioner's motion to amend.⁷ The Tucker Act, as it was before September 1, 1948,⁸ provided for the filing of "a petition, duly verified". The District Court for the Eastern District of New York, in the only case which we have found upon the point under that Act,⁹ held that the court could not proceed upon an unverified complaint but that an amendment, after the statute of limitations upon new complaints had expired, cured the defect. The Judicial Code, as it was before September 1, 1948, in providing for the issuance of temporary restraining orders,¹⁰ required an affidavit or a "verified bill". It was held under Equity Rule 73, which embodied the same requirement, that "a court of equity is without power to issue an injunction unless there is a properly verified bill upon which to base the same."¹¹

Generally speaking, it seems to be held in the state courts that a statutory requirement for a verified pleading is not jurisdictional but can be waived by the opposing party or cured by amendment.¹² In divorce cases, it seems to be held generally that a statutory requirement of verification is jurisdictional,¹³ but, even so, failure to verify can be cured by amendment prior to trial.¹⁴

Upon the foregoing authorities, the rule appears to be that when a statute requires verification of a pleading, a court cannot act upon the pleading unverified, but that an initial failure to verify can be cured by later verification. This supplies the answer to the problem at bar. The Commission had no power to act upon the unverified application. It could not waive the requirement, and we do not think that the nature of these proceedings is such that the other applicant, although adversary in the fullest sense, could have waived it. In any event, the opposing applicant did not waive, and the lack of verification was not cured. The Commission's award to Beach upon the application before it was, therefore, without its statutory power. This conclusion leaves the proceedings on the several applications without a final disposition. We will not undertake to direct the issuance of a permit to Johnston. The better procedure is to let the Commission complete its administrative determinations. The order of the Commission will be set aside, and the case remanded for further proceedings in the light of this opinion.

This brings us to appellant's second main contention, which is that the Commission acted arbitrarily, capriciously and in violation of due process of law, in that its conclusions were not supported by substantial evidence and one of them constituted a form of censorship forbidden by the statute. Because these phases of the case will be material in further proceedings before the Commission, we will consider them. Moreover, the contention of appellant in these respects raises basic questions as to findings and conclusions in comparative hearings in which the...