National Anti-Vivisection Society v. FCC

Decision Date22 October 1964
Docket NumberNo. 64 C 775.,64 C 775.
Citation234 F. Supp. 696
PartiesNATIONAL ANTI-VIVISECTION SOCIETY, an Illinois not-for-profit corporation, Plaintiff, v. FEDERAL COMMUNICATIONS COMMISSION, Defendant.
CourtU.S. District Court — Northern District of Illinois

Douglas P. Maloney, Peter D. Fitzgerald, Chicago, Ill., for plaintiff.

Edward Hanrahan, U. S. Atty., Chicago, Ill., for defendant.

ROBSON, District Judge.

Plaintiff, National Anti-Vivisection Society, filed a complaint requesting this court to mandamus the Federal Communications Commission either to conduct a hearing and revoke the permit of the Weigel Broadcasting Company, or issue a cease and desist order against certain further television broadcasts by that station. The Commission's motion to dismiss is based on this court's lack of jurisdiction to issue a mandamus order.

On January 6, 1964, the Society wrote the Commission in opposition to telecasting of films of bullfighting in Mexico City over WCIU-TV, a Chicago UHF television station. Channel 26 station is owned by the Weigel Broadcasting Company and presently operates under program test authority pursuant to issuance of a Federal Communications Commission permit. Actual televising of bullfights began on February 26, 1964, and the Society wrote the Commission on February 26, 1964, alleging that the broadcasts constitute a public and private nuisance; are contrary to the public interest as constituting an obscene portrayal, and contravenes the public policy of Illinois (Ill.Rev.Stat.1963, ch. 8, § 229). The Society also demanded a hearing to revoke the operating permit or issue a cease and desist order against further telecasts. By letter, the Commission denied the request to institute immediate proceedings and stated the Commission would adhere to its normal practice of considering objectionable programming when WCIU-TV would file a renewal application, September 1, 1964. At this juncture, this suit was filed.

Initially it must be determined whether a mandamus action in the District Court is the proper procedure for the Society to follow. Section 402(a), 47 U.S.C. provides that:

"* * * Any proceeding to enjoin, set aside, annul or suspend any order of the Commission under this act * * * shall be brought as provided by and in the manner prescribed in * * * Public Law 901, 81st Congress."

This is exclusively by appeal to the Circuit Court of Appeals, with that right of appeal limited to "aggrieved" or "adversely affected" persons. Those persons have been construed only to include those with a substantial interest in the Commission's order, such as existing license holders, radio station owners, or persons capable of showing the likelihood of economic injury (Southwestern Publishing Co. v. Federal Communications Commission, 100 U.S.App.D.C. 251, 243 F.2d 829 (1957)).

The Commission's position suggesting that the Society await the time when WCIU-TV applies for a normal license does seem to be an order from which an appeal is cognizable (Tomah-Mauston Broadcasting Co., Inc. v. Federal Communications Commission, 113 U.S.App. D.C. 204, 306 F.2d 811 (1962)). However, this court strongly doubts whether the Society has the standing to appeal under § 402(b), because although vanguards for interests which need protection, this fact does not bring automatic inclusion within the aforementioned section. Therefore, the court finds it necessary to consider the entire matter under Title 28 U.S.C. § 1361, which grants this court the power to mandamus a governmental official to perform a duty. A perusal of the legislative history indicates that § 1361 is primarily aimed at enlarging the venue in mandamus actions heretofore cognizable only in the District of Columbia, and not a creation of new causes of action. Instead, the court's power is limited to compelling the official to act but not to direct him how to act.

Section 1361 and its legislative history indicate that "duty" as used therein, has reference to ministerial steps commanded by the statute. This does not include any untrammeled authority in the District Court to control or hamper the exercise of discretion vested in an officer or governmental agency (Dover Sand & Gravel, Inc. v. Jones, 227 F.Supp. 88 (D.N.H.1963)). Furthermore, once substantial compliance with administrative procedures is shown, the wisdom or good judgment employed therein is not...

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2 cases
  • International Fed. of P. & T. Eng., Loc. No. 1 v. Williams
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 7 Febrero 1974
    ...v. Culotta, 294 F.Supp. 183 (E.D. Va., 1968); Parrish v. Seamans, 343 F. Supp. 1087 (D.C.S.C., 1972); National Anti-Vivisection Society v. F.C.C., 234 F.Supp. 696 (N.D.Ill., 1964). In Wilbur v. United States, supra, the court pointed out that mandamus might be employed to compel a ministeri......
  • Pendleton v. Trans Union Systems Corp., Civ. A. No. 76-1298.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 22 Marzo 1977
    ...See Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir. 1973); National Anti-Vivisection Society v. Federal Communications Commission, 234 F.Supp. 696 (N.D.Ill.1964). These cases reflect the judiciary's reluctance to interfere with the discretion of the executive d......

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