Melody Music, Inc. v. FCC, 18857.
Decision Date | 08 April 1965 |
Docket Number | No. 18857.,18857. |
Citation | 345 F.2d 730 |
Parties | MELODY MUSIC, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Marcus Cohn, Washington, D. C., with whom Messrs. Paul Dobin and Stanley S. Neustadt, Washington, D. C., were on the brief, for appellant.
Mr. John Conlin, Counsel, Federal Communications Commission, with whom Messrs. Henry Geller, Gen. Counsel, and Daniel R. Ohlbaum, Deputy Gen. Counsel, Federal Communications Commission, were on the brief, for appellee.
Mr. Howard Jay Braun, Counsel, Federal Communications Commission, also entered an appearance for appellee.
Before BAZELON, Chief Judge, and FAHY and WRIGHT, Circuit Judges.
The examiner found, as mitigating factors, that WGMA had provided "outstanding service," and that Enright and Barry had violated no law or express Commission policy when they conducted the deceptive programs, though Congress has since amended the Communications Act to forbid such practices.1 The examiner further stated:
On the basis of these findings, the examiner recommended license renewal. On April 15, 1964, the Commission reversed the examiner, because Enright and Barry "lack the requisite character qualification to be licensees" on the ground that their "prolonged deception practiced upon the television viewing public * * * is so patently and flagrantly contrary to the public interest as to warrant, without more, the denial of an application for renewal * * *." The Commission also found that Enright and Barry had attempted "to discourage and to frustrate" initial investigations by a New York City grand jury and by network officials.
Appellant petitioned the Commission to reconsider its decision and to consolidate oral argument with pending applications for renewal of operating licenses by the National Broadcasting Company, the network which carried, and for a time owned, the quiz shows produced by Enright and Barry. Alternatively appellant asked the Commission to vacate its decision and withhold further decisions until it had decided the NBC case.
It appears that before the Commission's initial decision in the present case, the hearing examiner in the NBC case rendered his opinion, stating in pertinent part:
2
The examiner concluded, however, that this discredit was counterbalanced by "the record of the network" in broadcasting, and that its role in the deceptive quiz shows thus did not disqualify it from holding broadcast licenses. On July 24, 1964, while the NBC proceedings were still pending, the Commission denied appellant's request for reconsideration in conjunction with the NBC applications on the ground that "no useful purpose would be served." One week later, on July 30, 1964, the Commission granted several license renewals to NBC without any mention of the network's role in the deceptive quiz shows.3
We think the Commission's refusal at least to explain its different treatment of appellant and NBC was error. Both were connected with the deceptive practices and their renewal applications...
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