Microwave Communications, Inc. v. F. C. C., No. 73-2051

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore ROBINSON and ROBB; SPOTTSWOOD W. ROBINSON, III
Citation169 U.S.App.D.C. 154,515 F.2d 385
PartiesMICROWAVE COMMUNICATIONS, INC. and MCI Telecommunications Corporation, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of America, Respondents, American Telephone and Telegraph Company et al., Intervenors.
Decision Date27 June 1974
Docket NumberNo. 73-2051

Page 385

515 F.2d 385
169 U.S.App.D.C. 154
MICROWAVE COMMUNICATIONS, INC. and MCI Telecommunications
Corporation, Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION and the United States of
America, Respondents,
American Telephone and Telegraph Company et al., Intervenors.
No. 73-2051.
United States Court of Appeals,
District of Columbia Circuit.
June 27, 1974.

Page 386

Richard J. Flynn, Chicago, Ill., John E. Haley, Washington, D. C., and Jules M. Perlberg, Chicago, Ill., were on the pleadings for American Tel. and Tel. Co., intervenor.

Gordon P. MacDougall, Sp. Asst. Atty. Gen. for the Com. of Pa., was on the pleadings for the Com. of Pennsylvania, intervenor.

Michael H. Bader and William J. Byrnes, Washington, D. C., were on the pleadings for Microwave Communications, Inc. and MCI Telecommunications Corp., petitioners.

Joseph A. Marino, Associate Gen. Counsel, Philip V. Permut, Counsel, and Howard E. Shapiro, Atty., Dept. of Justice, were on the pleadings for the F. C. C. and the United States, respondents.

Before ROBINSON and ROBB, Circuit Judges.

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This case is before us on the motion of intervenor American Telephone and Telegraph Company (AT&T) to dismiss the petition for review herein on the ground that it was not timely filed. The petition solicits reconsideration by this court of four orders of the Federal Communications

Page 387

Commission after the Commission denied applications seeking rehearing of three of them. 1 The novel and potentially important issue generated by the motion is whether the statutory period for filing a petition for review of an order refused rehearing by the Commission 2 commences on the date a news report of the order is issued by the Commission's Information Office or on the date the text of the order disallowing rehearing is released to the litigants. Resolution of this question hinges entirely upon the meaning of the term "public notice" as used in the statute delineating that period, 3 a matter we are called upon to carefully explore.
I

Microwave Communications, Inc. (Microwave) and MCI Telecommunications Corporation (MCI) filed a petition in this court for review of four orders promulgated by the Commission in a rate investigation. 4 The first two orders adjudicated a phase of the proceeding, 5 the next order implemented the first two, 6 and the fourth, adopted August 2, 1972, denied all applications for rehearing of the first three. 7 With a

Page 388

single exception, the orders were accompanied by written decisions. 8

On August 3, the Commission's Information Office issued a report disclosing the action taken in the order of August 2. At the head of the report in large type was the word "News," followed in smaller type by the Commission's name and address, and then by the words "Public Notice." The report bore a number, the style "Action in Docket Case," and a headline announcing the denial of the petitions for rehearing. The report then described generally the nature of the proceeding, the parties' contentions and the Commission's rulings therein, and stated that by memorandum opinion and order on August 2 the Commission had acted adversely on the requests for rehearing. 9 The text of the order refusing rehearing and its accompanying opinion did not, however, become available either to the parties or the public until August 10. The petition for review now under attack was filed on October 5.

A petition for review of an order which the Commission declines to rehear must be filed within 60 days after "public notice" of the order or orders disposing of all petitions for rehearing. 10 In support of its motion to dismiss, AT&T argues that the 60-day period began to run on August 2, the date of the news report, with the result that the petition for review came three days too late. 11 Petitioners, on the other hand, contend that the period is to be measured from August 10, the date on which the order and opinion disallowing rehearing were released in full text. The Commission and intervenor Commonwealth of Pennsylvania support petitioners' position. 12 We agree with that position and accordingly deny the motion.

II

By virtue of 28 U.S.C. § 2342(1) (1970), the federal courts of appeals possess "exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of . . . all final orders of the Federal Communications Commission made reviewable by" Section 402(a) of the Communications Act of 1934. 13 Section 402(a) encompasses all reviewable orders except those in the special categories none obtaining here made appealable by Section 402(b) of the Act. 14 Jurisdiction to review Section 402(a) orders must be invoked by a petition for review, 15 and the petition

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must meet specified requirements, 16 one of which is timeliness of filing. 17

On the latter score, it is provided that "(a)ny party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies." 18 Section 405 of the Communications Act provides, however, that the party may petition the Commission for a rehearing, 19 and that if he does so "(t)he time within which a petition for review must be filed in a proceeding to which section 402(a) . . . applies . . . shall be computed from the date upon which public notice is given of orders disposing of all petitions for rehearing filed with the Commission in such proceeding or case . . . ." 20

So, but for the petitions for rehearing presented to the Commission in this case, petitions for judicial review of the questioned orders 21 would have had to be filed within 60 days following the respective dates of "entry" of those orders. Because, however, administrative reconsideration was timely sought, the filing period was extended to the sixtieth day after "public notice (was) given" of the Commission's opinion and order of August 2, 1973, denying rehearing. 22 It is beyond cavil that these limitations are jurisdictional 23 and unalterable. 24

Page 390

The news report of the August 2 decision and order was released on August 3. The texts of the decision and order became available on August 10. The challenged petition for review was filed on October 5, in time if the 60-day period commenced on August 10 but not if it ran from August 3. Our jurisdiction thus depends upon which of the two was the date on which "public notice (was) given." 25 That date, we hold for a number of reasons, 26 was August 10.

III

To begin with, statutory language defining key elements of the legislative scheme for judicial review of Commission orders suggests strongly that "public notice" of an order "is given" only when the complete text of the order and any accompanying decision becomes available to the litigants. We may look first to Section 2344, 27 which pertains to petitions to review original orders as distinguished from orders granting or denying rehearing and which sets the petitioning period at 60 days after "entry" of the order. 28 That section specifies that "(o)n the entry of a final order reviewable under this chapter, the agency shall promptly give notice thereof by service or publication in accordance with its rules." 29 The obvious intendment of this requirement is information to the parties far beyond that imparted merely by entry of the order on the administrative record. 30 And not only are the Commission's regulations devoid of any reference to party-notice of the news-report type, but they confirm the Commission's practice of serving all orders and decisions upon the affected litigants as well as making them available for public inspection. 31

Section 2344 also specifies that a petition for review "shall contain a concise statement of . . . the grounds on which relief is sought," 32 and that "(t)he petitioner shall attach to the petition, as exhibits, copies of the order, report, or decision of the agency." 33 Compliance with the first of these requirements is apt to be exceedingly difficult, and of course with the second is impossible, unless the litigant is armed with the complete text of the decision and order which he desires a court to review.

In similar vein, Section 402(c) of the Communications Act 34 provides that appeals from Commission action in the special cases wherein an appeal rather than a petition for review is the vehicle for judicial reexamination 35 "shall be taken by filing a notice of appeal with the court within thirty days from the

Page 391

date upon which public notice is given of the decision or order complained of." 36 Section 402(c) also provides, comparably with Section 2344, that the "notice of appeal shall contain a concise statement of the reasons on which the appellant intends to rely . . . ." 37 Thus, the statutory procedures for appeal, like those pertaining to review on petition, require a high degree of specificity in the legal arguments upon which the litigant will rely. We are unable to harmonize the requirement of argumentative particularity with the notion that the "public notice" of which the statute speaks is the abridged version which the Commission's Information Office hands out in advance of release of the decision or order in full.

That version, we are told, is nothing more than an unofficial, informal summary of forthcoming Commission action for the edification of the press and the general public. It is customarily prepared by non-lawyers in the press office; it is not approved by the Commission, nor is it served on the litigants, 38 but is simply made available on a first-come-first-served basis by the Information Office. In the case before us, the August 3 news report was a two-page typewritten condensation of the eleven-page typewritten opinion and order 39 in which the Commission elucidated its disposition of the petitions for rehearing. We cannot envision how...

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49 practice notes
  • Writers Guild of America, West, Inc. v. FCC, No. CV 75-3641-F
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • November 4, 1976
    ...pronouncement accompanied by public notice. See 47 C.F.R. §§ 1.4(b), 1.104(b), 1.106(f); Microwave Communications, Inc. v. FCC, 169 U.S.App.D.C. 154, 515 F.2d 385 (1974). Such pronouncements serve to generate the kind of record with which a court of appeal is equipped to deal. Here, however......
  • City of Arlington v. Fed. Commc'ns Comm'n, No. 10–60039.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 23, 2012
    ...Penn Power Co., 860 F.2d at 585–86. 28. 482 U.S. 270, 280, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987) (quoting Microwave Commc'ns, Inc. v. FCC, 515 F.2d 385, 387 n. 7 (D.C.Cir.1974)). 29. 391 F.3d 685 (5th Cir.2004). FN30. Id. at 688–89. FN31. See Fed. R.App. P. 15(d). 32. 28 U.S.C. § 2344. FN33......
  • Interstate Commerce Commission v. Brotherhood of Locomotive Engineers Railroad Company v. Brotherhood of Locomotive Engineers, MISSOURI-KANSAS-TEXAS
    • United States
    • United States Supreme Court
    • June 8, 1987
    ..."an order which merely denies rehearing of . . . [the prior] order is not itself reviewable." Microwave Communications, Inc. v. FCC, 169 U.S.App.D.C. 154, 156, n. 7, 515 F.2d 385, 387, n. 7 (1974). See also SEC v. Louisiana Public Service Comm'n, 353 U.S. 368, 371-372, 77 S.Ct. 855, 857, 1 ......
  • City of Arlington v. Fed. Commc'n Comm'n, No. 10-60039
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 23, 2012
    ...redetermination."). 27. W. Penn Power Co., 860 F.2d at 585-86. 28. 482 U.S. 270, 280 (1987) (quoting Microwave Commc'ns, Inc. v. FCC, 515 F.2d 385, 387 n.7 (D.C. Cir. 1974)). 29. 391 F.3d 685 (5th Cir. 2004). 30. Id. at 688-89. 31. See Fed. R. App. P. 15(d). 32. 28 U.S.C. § 2344. 33. Brazor......
  • Request a trial to view additional results
49 cases
  • Writers Guild of America, West, Inc. v. FCC, No. CV 75-3641-F
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • November 4, 1976
    ...pronouncement accompanied by public notice. See 47 C.F.R. §§ 1.4(b), 1.104(b), 1.106(f); Microwave Communications, Inc. v. FCC, 169 U.S.App.D.C. 154, 515 F.2d 385 (1974). Such pronouncements serve to generate the kind of record with which a court of appeal is equipped to deal. Here, however......
  • City of Arlington v. Fed. Commc'ns Comm'n, No. 10–60039.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 23, 2012
    ...Penn Power Co., 860 F.2d at 585–86. 28. 482 U.S. 270, 280, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987) (quoting Microwave Commc'ns, Inc. v. FCC, 515 F.2d 385, 387 n. 7 (D.C.Cir.1974)). 29. 391 F.3d 685 (5th Cir.2004). FN30. Id. at 688–89. FN31. See Fed. R.App. P. 15(d). 32. 28 U.S.C. § 2344. FN33......
  • Interstate Commerce Commission v. Brotherhood of Locomotive Engineers Railroad Company v. Brotherhood of Locomotive Engineers, MISSOURI-KANSAS-TEXAS
    • United States
    • United States Supreme Court
    • June 8, 1987
    ..."an order which merely denies rehearing of . . . [the prior] order is not itself reviewable." Microwave Communications, Inc. v. FCC, 169 U.S.App.D.C. 154, 156, n. 7, 515 F.2d 385, 387, n. 7 (1974). See also SEC v. Louisiana Public Service Comm'n, 353 U.S. 368, 371-372, 77 S.Ct. 855, 857, 1 ......
  • City of Arlington v. Fed. Commc'n Comm'n, No. 10-60039
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 23, 2012
    ...redetermination."). 27. W. Penn Power Co., 860 F.2d at 585-86. 28. 482 U.S. 270, 280 (1987) (quoting Microwave Commc'ns, Inc. v. FCC, 515 F.2d 385, 387 n.7 (D.C. Cir. 1974)). 29. 391 F.3d 685 (5th Cir. 2004). 30. Id. at 688-89. 31. See Fed. R. App. P. 15(d). 32. 28 U.S.C. § 2344. 33. Brazor......
  • Request a trial to view additional results

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