Joseph v. FCC

• Decision Date: 30 July 1968
• Docket Number: No. 21873.,21873.
• Citation: 404 F.2d 207
• Parties: Mrs. Burton JOSEPH, Robin DeGrazia, Citizens Committee To Save WFMT-FM, et al., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WGN Continental FM Company and Gale Broadcasting Co., Inc., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

404 F.2d 207 (1968)

Mrs. Burton JOSEPH, Robin DeGrazia, Citizens Committee To Save WFMT-FM, et al., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee WGN Continental FM Company and Gale Broadcasting Co., Inc., Intervenors.

No. 21873.

United States Court of Appeals District of Columbia Circuit.

Argued June 13, 1968.

Decided July 30, 1968.

Petition for Rehearing Denied September 25, 1968.

Mr. Eugene F. Mullin, Jr., Washington, D. C., with whom Mr. Harry R. Booth, Chicago, Ill., a member of the bar of the State of Illinois, was on the brief, for appellants. Messrs. J. Parker Connor and S. White Rhyne, Jr., Washington, D. C., also entered appearances for appellants.

Mrs. Lenore G. Ehrig, Counsel, Federal Communications Commission, with whom Messrs. Henry Geller, General Counsel, and John H. Conlin, Associate General Counsel, Federal Communications Commission, were on the pleadings for appellee.

Mr. R. Russell Eagan, Washington, D. C., with whom Mr. Robert A. Beizer, Washington, D. C., was on the pleadings, for intervenor WGN Continental FM Company. Mr. Reed Miller, Washington, D. C., was on the pleadings for intervenor Gale Broadcasting Co., Inc.

Before EDGERTON, Senior Circuit Judge, and WRIGHT and LEVENTHAL, Circuit Judges.

PER CURIAM.

Appellants challenge a Federal Communications Commission order approving the assignment¹ of the license of WFMT (FM), an award-winning fine arts station in Chicago, from an independent broadcasting company to WGN Continental FM Broadcasting Company, a wholly owned subsidiary of the Tribune Company. Appellants are Mrs. Robin DeGrazia, 14 other individual listeners, and the Citizens Committee to Save WFMT(FM). The Tribune Company operates, through subsidiaries, WGN (AM) and WGN(TV) in Chicago, and publishes the Chicago Tribune and the Chicago American, newspapers with a daily circulation exceeding 800,000 and 400,000, respectively, and Sunday circulations exceeding 1,150,000 and 490,000.

The assignment application was filed with the Commission on November 6, 1967. On March 27, 1968, the Commission approved the assignment without having held an evidentiary hearing, over the dissent of Commissioner Johnson, who felt that a hearing was required on the issue of control of communications media. There was no majority opinion or findings. The Commission's minutes merely state: "Granted consent as to assignment of license."²

Between the time the proposed assignment was announced and March 27, 1968, the Commission received several letters and telegrams expressing concern and opposition to the assignment, but no one filed a petition to deny.³ On March 21, 1968, appellants' counsel telegraphed the Commission that he had been requested by interested citizens to urge the Commission to hold public hearings on the proposed purchase. Four days later, he advised the Commission by telegram that he was forwarding a motion for public hearings and for intervention. That motion, naming Mrs. Robin DeGrazia, an appellant here, as one of the petitioners, was received at the Commission offices on March 26. It related various facts to show the petitioners' interest, then detailed reasons why the assignment was not in the public interest. Petitioners requested public hearings on the proposed purchase and leave to intervene therein.

The motion apparently did not come to the attention of the Commission prior to its March 27 decision. On April 4, however, a letter was sent to appellants' counsel over the signature of the Commission's Secretary. Responding to the objections raised by the motion, it advised that the assignment application had been granted after full consideration of the questions of programming and concentration of control. In particular, it related assignee's unequivocal representation that no changes in staff or programming were intended, and stated that the Commission took into consideration the other competing media, including daily newspapers, in the Chicago market. The letter closed with the statement that petitioners' request "accordingly is denied."

Also on April 4, but of course before he received the letter from the Commission, appellants' counsel advised assignor and assignee that he intended to file a petition for reconsideration with the Commission, and if that failed, to file an appeal. After counsel received the Commission's letter of April 4 denying petitioners' request for hearing, he advised assignor and assignee that he intended to file a notice of appeal. He did so without any new, intervening pleading to the Commission. Appellants now move for summary reversal and stay. The issues are clear, and the pleadings of all the parties agree that the case is appropriate for summary disposition. Accordingly, we have undertaken to decide the case on the merits.

The primary argument advanced in opposition to appellants' motion is that appellants failed to exhaust administrative remedies.⁴ Section 405 of the Communications Act provides that to be eligible to seek judicial review of a Commission order, one either must have been a party to the proceedings resulting in the order, or must have petitioned for reconsideration of the order.⁵ Thus, we have held that the appeal of a party who "did not seek to become a party below and did not seek rehearing as a statutory condition precedent to invoking our jurisdiction * * * must be dismissed."⁶

It is not inconsistent with this reading of the statute to find that administrative remedies have been exhausted here. Under the peculiar circumstances of this case, counsel for appellants could reasonably infer that the Commission had treated the March 26 motion as a petition for reconsideration. In counsel's April 4 letter to assignor and assignee, he stated his intention to file a petition for reconsideration. When he was informed by letter of April 4 that his motion and request for hearing had been denied, evidently on consideration given after the initial decision, and he was in receipt of a denial accompanied by "a concise statement of the reasons therefor," as required by the Act for denial of petitions for reconsideration,⁷ he was justified in immediately approaching this court.

The question whether there has been adequate compliance with the prescribed prerequisites to judicial review cannot be answered mechanically. It involves consideration of the purpose of the requirement, the type of issue, and the nature of the party. Thus, in criminal cases, where the time for noting an appeal is jurisdictional,⁸ any notice filed within the designated time which reveals an intention to appeal is sufficient to give this court jurisdiction, even if it does not comply with the detailed requirements of Fed.R.App.P. 3(c).⁹ This lenity reflects the notice nature of the requirement, the significance to the appellant of the appeal, and the fact that the appellant is often unskilled in law.

"The obvious purpose of section 405 is to afford the Commission an opportunity to consider and pass upon matters prior to their presentation to the court."¹⁰ Appellant's motion — considered after the initial decision — served that purpose. It would have contained nothing more of substance¹¹ had it been filed after March 27, since the Commission failed to make findings and did not render an opinion. Moreover, Mrs. DeGrazia is entitled to consideration as a representative of the listening public. Such parties do not have the same sort of Washington representation to uncover threats to their interest, or deploy apparatus to combat them, as do parties whose interest is economic. We think the facts here show substantial compliance by such a party with the requirement of petition for reconsideration, and that the Commission cannot insulate itself from judicial review because she did not refile the identical pleading with a different caption.

At oral argument on these motions, Commission counsel suggested that the Commission did not act upon the motion, but that it was handled by the staff. This, of course, does not appear from the letter. We have not been cited to and have not ourselves located any Commission regulations delegating authority to deny such motions.¹² Since the Secretary does have authority to sign official Commission correspondence,¹³ appellants' counsel could naturally assume that the Secretary was conveying the Commission's decision. Neither the statute nor the regulations specify what form a Commission order denying a petition for reconsideration must take. However, regulations governing other situations at the time of the Secretary's letter made it clear that at least some orders could be issued in the form of letters signed by the Secretary.¹⁴ In the absence of a prohibition on this type of letter-order to dispose of petitions for reconsideration appellants' counsel had no notice or other reason to conclude that the letter-order was impermissible for use in denial of reconsideration.¹⁵

Mrs. DeGrazia's standing is also questioned. The allegations in the motion before the Commission demonstrated at least prima facie standing.¹⁶

The Communications Act requires the Commission to designate an application for hearing if a substantial and material question of fact is presented or if the Commission is unable, "for any reason," to find that the public interest, convenience, and necessity would be served by granting the application.¹⁷ The public welfare requires the Commission to provide the "widest possible dissemination of information from diverse and antagonistic sources" and to guard against undue concentration of control of communications power.¹⁸ The Act expressly prohibits assignment of a broadcast license "except upon application to the Commission and upon finding by the Commission that the public interest, convenience, and necessity will be served thereby."¹⁹

The finding required by the statute was concededly not made in so many words. Commission counsel urges that the finding may be implied from the Commission's grant of the...