McNinch v. Heitmeyer, 7228.

• Decision Date: 03 April 1939
• Docket Number: No. 7228.,7228.
• Parties: McNINCH et al., Com'rs of Federal Communications Commission, v. HEITMEYER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

105 F.2d 41 (1939)

McNINCH et al., Com'rs of Federal Communications Commission, v. HEITMEYER.

No. 7228.

United States Court of Appeals for the District of Columbia.

Argued January 9, 1939.

Decided April 3, 1939.

Rehearing Denied May 23, 1939.

Hampson Gary, William H. Bauer, Fanney Neyman, and Andrew G. Haley, all of Washington, D. C., for appellants.

Clarence C. Dill and James W. Gum, both of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and STEPHENS and EDGERTON. Associate Justices.

GRONER, C. J.

This case is here on a special appeal which we granted and assigned for argument with Pottsville Broadcasting Company v. Federal Communications Commission, 70 App.D.C. 157, 105 F.2d 36, decided today. The two cases have many aspects in common.

In 1935 Heitmeyer (appellee) applied for a permit to construct a radio broadcasting station at Cheyenne, Wyoming. The application was referred to an examiner for hearing, and in October, 1935, it was heard together with the application of Wyoming Radio Educational Association for a permit to construct a similar station at Cheyenne. The examiner recommended that Heitmeyer's application be granted and that the Association's application be denied. The Commission then considered Heitmeyer's application and denied it. He appealed, and in December, 1937, we reversed. 68 App.D.C. 180, 95 F.2d 91. He then filed a petition with the Commission in which he asked that it make a final decision on the record "as it now stands." The Commission rejected this application and ordered that the record be reopened for further hearing, to be held before an examiner and consolidated with the hearings de novo upon the applications of Frontier Broadcasting Company and Cheyenne Radio Corporation. Heitmeyer then applied to this court for a rule "to show cause", which we denied, following which he filed in the United States District Court this bill of complaint, asking that the Commission be permanently enjoined from granting any construction permit or license to any other applicant for a radio station at Cheyenne until after the Commission had rendered decision on the record as made at the original hearings. He also asked the court to order the Commission to execute and carry into effect the judgment and decree of this court. The Commission moved to dismiss the bill for lack of jurisdiction and, when this motion was denied, we allowed an appeal. The parties stipulated that the Commission shall not grant any other application for Cheyenne pending final decision in this case.

The only substantial difference between Heitmeyer's case and the Pottsville case is that in the former the Commission, instead of passing upon all the issues set down for hearing before the examiner — namely, (1) determination of the applicant's legal, technical, and financial qualifications; (2) the need for additional service at Cheyenne; (3) whether the grant of the application would interfere with the quota provision; (4) the question of interference with other stations; and (5) the suitability of the site or location of the apparatus — denied the application on the single ground that the applicant's financial qualifications were not shown to be...