Missouri Broadcasting Corp. v. Federal C. Commission

• Decision Date: 06 December 1937
• Docket Number: No. 6869.,6869.
• Citation: 68 App. DC 154,94 F.2d 623
• Parties: MISSOURI BROADCASTING CORPORATION v. FEDERAL COMMUNICATIONS COMMISSION (STAR-TIMES PUB. CO., Intervener).
• Court: U.S. Court of Appeals — District of Columbia Circuit

68 App. DC 154, 94 F.2d 623 (1937)

MISSOURI BROADCASTING CORPORATION v. FEDERAL COMMUNICATIONS COMMISSION (STAR-TIMES PUB. CO., Intervener).^*

No. 6869.

United States Court of Appeals for the District of Columbia.

Argued October 19-20, 1937.

Decided December 6, 1937.

Rehearing Denied January 14, 1938.

Louis G. Caldwell, Percy H. Russell, Jr., and Donald C. Beelar, all of Washington, D. C., for appellant.

Hampson Gary, General Counsel, Federal Communications Commission, George B. Porter, Asst. General Counsel, and Fanney Neyman, Principal Atty., all of Washington, D. C., for appellee Federal Communications Commission.

Paul D. P. Spearman and Alan B. David, both of Washington, D. C., for appellee Star-Times Pub. Co.

Before ROBB, GRONER, and MILLER, Associate Justices, and WHEAT, District Judge.

GRONER, J.

Missouri Broadcasting Corporation (appellant) and Star-Times Publishing Company (intervener) were rival applicants for a permit to operate a radio broadcasting station in St. Louis on 1250 kc. The commission in an order dated September 22, 1936, made effective October 6, 1936, granted the application of Star-Times and denied the application of Missouri. As a principal ground of appeal, Missouri insists that the order of the commission was void because it was not preceded by or based on any findings of fact or grounds for the decision. The printed record contains approximately 400 pages of evidence and more than 100 pages of exhibits. After reference to the examiner in the early part of 1936, Pulitzer Publishing Company, operator under a license in St. Louis, together with several other stations concerned in the matter, intervened opposing the grant to either applicant. Its separate appeal we have disposed of today in Pulitzer Publishing Co. v. Federal Communications Commission, 68 App.D.C. 124, 94 F.2d 249. The examiner reported in July, 1936, recommending the denial of the application of both Missouri and Star-Times. The following September there was oral argument before the broadcast division of the commission, and two weeks later the division entered its decision and final order. The order is in the following form:

"Upon consideration of the applications, record, and evidence in these cases, Examiner's Report I-246, the exceptions thereto and oral argument heard, the Broadcast Division this day found that public interest, convenience and necessity would be served by granting the application of Star-Times Publishing Co., for construction permit and that public interest, convenience and necessity would not be served by granting the application of Missouri Broadcasting Corp., for construction permit and entered its final order granting and denying the same respectively, in the following cases: Then followed the docket numbers, names of the applicants, etc., together with a statement that the order entered would be effective at 3 A. M. October 6, 1936, and that the Commission would at a subsequent date issue and publish an opinion setting forth a statement of the facts appearing of record and the grounds for the decision reached."

The statement of facts and reasons for the decision was filed on October 7, 1936, and appears to have been released to the press as of October 17, 1936. In the meantime and on October 5, 1936, Missouri filed a petition for rehearing and on October 21st a supplemental petition for rehearing which on the same day the commission denied. Thereupon Missouri filed its notice of appeal.

Missouri's position, as we have indicated, is that the commission is not authorized by the act to make a decision without finding the facts and reasons therefor, and it says that in the present order there is not a single word which can serve as such a finding.

The position of the commission, on the other hand, is that the only finding it is required under the act to embody in its order is that of public interest, convenience, and necessity, and that this it did in its original decision and likewise in its subsequently issued and published opinion. In short, its position is that the facts and reasons for its decision need not be previously found and incorporated in its order, and that only the ultimate facts need be stated, and by "ultimate facts" the commission means neither more nor less than a declaration on its part that public interest, convenience, and necessity will be served by granting or refusing the application.

The Communications Act of 1934, 48 Stat. 1093, provides in section 309(a), 47 U.S.C.A. § 309(a):

"If upon examination of any application for a station license or for the renewal or modification of a station license the Commission shall determine that public interest, convenience, or necessity would be served by the granting thereof, it shall authorize the issuance, renewal, or modification thereof in accordance with said finding. In the event the Commission upon examination of any such application does not reach such decision with respect thereto, it shall notify the applicant thereof, shall fix and give notice of a time and place for hearing thereon, and shall afford such applicant an opportunity to be heard under such rules and regulations as it may prescribe."

The appeal section (402) of the act, 47 U.S.C.A. § 402, provides, inter alia, that an appeal may be taken by filing written notice of appeal in this court within twenty days after the decision is effective. The notice must be served on the commission and must contain a statement of the reasons for the appeal. The commission is required within five days to give notice to all other parties in interest, and such parties are permitted to intervene in the appeal and to inspect and to make copies of the appellant's statement of reasons for the appeal. The commission must then within thirty days file in this court originals or certified copies of all papers and evidence considered by it, a copy of its decision, and within thirty days thereafter "a full statement in writing of the facts and grounds for its decision as found and given by it."

The question here presented is not new. It has been suggested before, but we have hitherto found it unnecessary to pass upon it. The question, however, should be decided in the interest of procedural accuracy and in order that the appeal to this court may be heard and decided in the light of the issues formed by the commission's grounds for decision and the appellant's reasons for appeal. The act provides for an appeal to this court (a) by an applicant for a construction permit, or for a station license, or for renewal or modification of a station license, whose application is refused; (b) by any other person aggrieved or whose interests are adversely affected...