Midwest Television, Inc. v. FCC

• Decision Date: 12 July 1966
• Docket Number: 20021,No. 19975,20264.,19975
• Citation: 364 F.2d 674
• Parties: MIDWEST TELEVISION, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. MIDWEST VIDEO CORPORATION and Black Hills Video Corporation, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

364 F.2d 674 (1966)

MIDWEST TELEVISION, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.

MIDWEST VIDEO CORPORATION and Black Hills Video Corporation, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.

Nos. 19975, 20021, 20264.

United States Court of Appeals District of Columbia Circuit.

July 12, 1966.

Messrs. Ernest W. Jennes, John E. Vanderstar and William Malone, Washington, D. C., were on the pleadings for appellants in Nos. 19,975 and 20,021.

Mr. Henry Geller, Gen. Counsel, F. C. C., with whom Mr. John H. Conlin, Associate Gen. Counsel and Mrs. Lenore G. Ehrig, Atty., F. C. C., and Howard E. Shapiro, Atty., Dept. of Justice, were on the pleadings, for appellees.

Mr. Harry M. Plotkin, Washington, D. C., was on the pleadings for intervenors in Nos. 19,975 and 20,021 and also entered an appearance for appellants in No. 20,264.

Before BAZELON, Chief Judge, BASTIAN, Senior Circuit Judge, and WRIGHT, Circuit Judge.

PER CURIAM:

Black Hills Video and Midwest Video seek to intervene in Nos. 19,975 and 20,021 for the limited purpose of moving to have the record and proceedings in these cases transferred to the Eighth Circuit. We grant the motion to intervene and order the cases transferred.

These cases involve the validity of orders of the Federal Communications Commission concerning CATV systems. The FCC released its First Report and Order in this area on April 23, 1965, prescribing detailed rules and regulations relating to CATV systems which obtain their service by means of microwave assistance. In particular, such systems were required to carry the signals of local stations and not to duplicate the local stations' programs within a certain time period. Other CATV systems, i. e., those not utilizing microwave systems, were left unregulated. Black Hills and Midwest Video filed petitions for review of this order in the Eighth Circuit; the case has been briefed and argued there and is presently under submission.

On the same date that the First Order and Opinion issued, April 23, 1965, the FCC filed a Notice of Inquiry and Notice of Proposed Rule Making, stating that the hearings just completed had demonstrated the need for a general study of CATV regulation beyond that underlying the First Order.

The Commission issued a Public Notice on February 15, 1966, that it had reached agreement on a broad plan for regulation of CATV and on March 8, 1966, it issued its Second Report and Order, extending the scope of its First Order to all CATV stations, including those that do not rely on microwave systems. Midwest Television, Inc. (to be distinguished from intervenor Midwest Video) filed a petition in this court (No. 19,975) on February 16 to review the Public Notice and filed a petition to review the Second Order on the afternoon of its issuance (No. 20,021). Black Hills and Midwest Video filed petitions for review of the Second Order the next day, March 9, in the Eighth Circuit.¹ Because proceedings with respect to the Second Order were "first instituted" in this court, the Commission has filed the record here, as it is required to do by 28 U.S.C. § 2112(a).² Black Hills and Midwest Video now ask us to transfer the present cases to the Eighth Circuit pursuant to the discretionary transfer provision of that section.³

We noted in Eastern Air Lines, Inc. v. Civil Aeronautics Bd., 122 U.S.App.D.C. 375, 378, 354 F.2d 507, 510 (1965):

"Certainly one factor that has considerable weight in the guidance of judicial discretion is the desirability of transfer to a circuit whose judges are familiar with the background of the controversy through review of the same or related proceedings."

The Eighth Circuit has under submission the review of the Commission's First Report and Order, a case which is the precursor of the present proceedings and which perforce involves many of the same issues.⁴ Thus, notwithstanding our familiarity with the general area⁵ and the fact that the issues in the cases are not completely identical, it would not further the principles of "sound judicial administration" that we discussed in the Eastern Air Lines case to have two courts of appeals review such closely related agency proceedings.⁶ Moreover, the anomalous results inherent in the possibility of conflicting decisions on review will be avoided at the outset by transferring these cases to the Court of Appeals which is reviewing the First Order and in which a petition for review of the Second Order has also been filed. Accordingly, and since it is not...