Kessler v. FCC, 17363
| Decision Date | 20 December 1963 |
| Docket Number | 17423-17425,17421,17420,17379,17474,17415,17369,No. 17363,17477-17483.,17363 |
| Parties | Joseph J. KESSLER, t/a WBXM Broadcasting Company, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. Thomas C. FLEET, Jr., et al., d/b/a Fleet Enterprises, Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WFLI, Inc., Intervenor. Robert A. JONES, et al., d/b/a McHenry County Broadcasting Company, Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. DUPAGE COUNTY BROADCASTING, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. PORTAGE BROADCASTING CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. Frederick ECKARDT, d/b/a Mansfield Broadcasting Company, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. CAPE CANAVERAL BROADCASTERS, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. GOOD MUSIC BROADCASTING COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. Reuben B. KNIGHT, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. Reuben B. KNIGHT, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. CAPE CANAVERAL BROADCASTERS, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. GOOD MUSIC BROADCASTING COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. DUPAGE COUNTY BROADCASTING, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. Thomas C. FLEET, Jr., et al., d/b/a Fleet Enterprises, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. Robert A. JONES, et al., d/b/a McHenry County Broadcasting Company, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. PORTAGE BROADCASTING CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. Frederick ECKARDT, d/b/a Mansfield Broadcasting Company, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
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Mr. Joseph J. Kessler, appellant pro se, in No. 17,363.
Mr. Lauren A. Colby, Owego, N. Y., for appellants in Nos. 17,369, 17,379 and 17,415 and petitioners in Nos. 17,479, 17,480 and 17,481.
Mr. John H. Midlen, Washington, D. C., with whom Messrs. Byron E. Harrison and Donald K. Smith were on the brief, for appellant in No. 17,420 and petitioner in No. 17,482.
Mr. Robert F. Jones, Washington, D. C., for appellant in No. 17,421 and petitioner in No. 17,483.
Mr. John P. Bankson, Jr., Washington, D. C., with whom Messrs. Neville Miller and John B. Kenkel, Washington, D. C., were on the brief, for appellant in No. 17,423 and petitioner in No. 17,477, and with whom Messrs. Arthur H. Schroeder and John B. Kenkel, Washington, D. C., were on the brief, for appellant in No. 17,424 and petitioner in No. 17,478.
Mr. Stanley S. Neustadt, Washington, D. C., with whom Mr. Leonard H. Marks, Washington, D. C., was on the brief, for appellant in No. 17,425 and petitioner in No. 17,474. Mr. Paul Dobin, Washington, D. C., also entered an appearance for appellant in No. 17,425.
Mr. Daniel R. Ohlbaum, Associate General Counsel, Federal Communications Commission, with whom Messrs. Max D. Paglin, General Counsel, and Ernest O. Eisenberg, Counsel, Federal Communications Commission, were on the brief for appellee-respondent Federal Communications Commission. Mrs. Ruth V. Reel, Counsel, Federal Communications Commission, also entered an appearance for appellee-respondent Federal Communications Commission.
Mr. Michael I. Miller, Attorney, Department of Justice, of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, with whom Mr. Lionel Kestenbaum, Attorney, Department of Justice, was on the brief, for respondent United States of America.
Mr. Eugene F. Mullin, Jr., Washington, D. C., for intervenor WFLI, Inc.
Before BAZELON, Chief Judge, and WASHINGTON and BASTIAN, Circuit Judges.
These cases challenge the action of the Federal Communications Commission in imposing a "freeze" on the acceptance of applications for most classes of standard radio broadcast stations, pending the adoption of new rules on the subject.
The "freeze" was announced by the Commission in a Report and Order issued on May 10, 1962, effective at the close of business on that day. The Order said, among other things, that the Commission intends "to issue a notice of proposed rule making" relating to possible revision of its rules governing AM broadcast assignments, which "are virtually unchanged from those adopted two decades ago." The Commission pointed out that "Between 1945 and 1962, the number of authorized standard broadcast stations has grown from 955 to 3,871, and the fact of this tremendous growth coupled with the particular way in which the growth has occurred, has created problems1 which differ greatly from those anticipated when the present standard broadcast rules were adopted," and that an immediate reexamination of the standards employed in assigning new or changed standard broadcasting facilities was required.2 The first step necessary for this reexamination, the order said, was a partial halt in the Commission's acceptance of standard broadcast applications. It was said, however, that procedural fairness required that the processing of applications currently on file be completed, although this processing must take into account and seek to avoid unnecessary aggravation of the problems mentioned. The Commission stated that it would also continue to accept for filing certain applications which "would not frustrate the ends we seek to achieve by our re-study, or for which there are strong public interest considerations weighing in favor of acceptance." It exempted from the "freeze" (a) applications "which would bring service to `white' areas and which would cause no interference to existing stations"; (b) applications for new Class II-A facilities "since, in the Clear Channel Proceeding, we have determined that these new assignments would serve the public interest"; and (c) most applications for Class IV power increases.3
The Commission said that since its Order related "to matters of practice and procedure before the Commission, proposed rule making in accordance with the provisions of Section 4 of the Administrative Procedure Act is not required." Commissioner Hyde dissented, saying "this is essentially a substantive policy decision and ought to be the subject of a public notice before decision."
Subsequent to the date of the Order each of the appellants tendered to the Commission applications for standard broadcast facilities, petitions requesting reconsideration of the freeze, and petitions requesting waiver of the freeze.
On October 15, 1962, the Commission released a Memorandum Opinion and Order, deciding that its action in imposing the May 10th freeze was not unlawful, that it would not modify or waive in any case the interim criteria established for the filing of new applications, and that all applications not consistent with the interim criteria would be returned to the applicants.
Following release of this Opinion and Order and return of their applications, appellants sought review in this court.4 The parties have stipulated the questions presented to us, and we now consider them.
The first question to be decided, as stipulated, is whether the Commission's freeze order of May 10, 1962, constitutes "a substantive rather than a procedural rule change, and if so, was the Commission required to give notice and/or follow the public rule making procedure prescribed by Sections 3 and 4 of the Administrative Procedure Act, 5 U. S.C. §§ 1002 and 1003?"
We first consider Section 4 of the Act, 60 Stat. 238-239 (1946), 5 U.S.C. § 1003, which provides insofar as here pertinent:
Admittedly the procedure specified by this section was not followed by the Commission with respect to the May freeze order: it issued the freeze order summarily without prior notice and hearing. As already noted, the Commission, with one member dissenting, said in the order that the Section 4 procedure was not required, because the interim procedures established relate to "matters of practice and procedure before the Commission." The October Memorandum Opinion and Order explained this conclusion as follows:
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