National Ass'n of Broadcasters v. F. C. C.
| Decision Date | 16 December 1976 |
| Docket Number | No. 75-1087,75-1087 |
| Citation | 180 U.S.App.D.C. 259,554 F.2d 1118 |
| Parties | , 2 Media L. Rep. 1129 NATIONAL ASSOCIATION OF BROADCASTERS, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. * |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Ernest W. Jennes, Washington, D. C., with whom Nicholas W. Fels, John B. Summers, Thomas J. Dougherty, Preston R. Padden, Joel Rosenbloom, John P. Bankson, Jr., Theodore D. Frank, Thomas Schattenfield, Louis Schwartz, Jack P. Blume, Alan Y. Naftalin and Frederick A. Walton, Jr., Washington, D. C., were on the brief for appellants-petitioners in Nos. 75-1087, 75-1088, 75-1101, 75-1102, 75-1164, 75-1165, 75-1166, 75-1167, 75-1168, 75-1169, 75-1170, 75-1171, 75-1172, 75-1173, 75-1174, 75-1175, 75-1183, 75-1184, 75-1189, 75-1190, 75-1277, 75-1278, 75-1356, 75-1357, 75-1405, 75-1406, 75-1416, 75-1417, 75-1418, 75-1419, 75-1597, 75-1598, 75-1672, 75-1673, 75-1685, 75-1686, 75-1769, 75-1770, 75-1771 and 75-1772 also argued for appellant-petitioner broadcast licensees.
Edgar F. Czarra, Jr., and Joseph Volpe, III, Washington, D. C., entered appearances for petitioners in Nos. 75-1166, 75-1167, 75-1168, 75-1169, 75-1170 and appellants in Nos. 75-1171, 75-1172, 75-1173, 75-1174 and 75-1175.
William J. Dempsey, Washington, D. C., entered an appearance for petitioner-appellant in Nos. 75-1416, 75-1417, petitioners-appellants in Nos. 75-1418 and 75-1419, appellants-petitioners in Nos. 75-1685 and 75-1686, appellant-petitioner in Nos. 75-1769, 75-1770, 75-1771 and 75-1772. Christopher J. Reynolds, Washington, D. C., entered an appearance for appellants-petitioners in Nos. 75-1685 and 75-1686, appellant-petitioner in Nos. 75-1769, 75-1770, 75-1771 and 75-1772.
Arthur G. House, Washington, D. C., entered an appearance for appellants-petitioners in Nos. 75-1356 and 75-1357.
Robert A. Woods and Lawrence M. Miller, Washington, D. C., entered appearances for petitioner in Nos. 75-1597 and 75-1598.
J. Roger Wollenberg, Washington, D. C., entered an appearance for appellants-petitioners in Nos. 75-1672 and 75-1673.
Horace P. Moulton, New York City, for petitioners-appellants in Nos. 75-1141 and 75-1142 et al., also argued for petitioner in No. 75-1155, appellant-petitioner in Nos. 75-1162 and 75-1163, appellant-petitioner in Nos. 75-1180 and 75-1181, petitioner in No. 75-1262, appellant-petitioner in Nos. 75-1270 and 75-1271, petitioners in No. 75-1539, appellant-petitioner in Nos. 75-1637 and 75-1638, petitioner in No. 75-1827 and appellant-petitioner in Nos. 75-1846 and 75-1847. Stephen N. Shulman, Stephen G. Wood, Washington, D. C., William D. Goddard, Eric L. Hirschhorn, F. Mark Garlinghouse and Alfred A. Green, New York City, were on the brief for petitioners-appellants in Nos. 75-1141 and 75-1142.
C. Grey Pash, Jr., Counsel, F. C. C., Washington, D. C., with whom Ashton R. Hardy, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, F. C. C., Robert B. Nicholson and Laurence K. Gustafson, Atty., Dept. of Justice, Washington, D. C., were on the brief for appellee-respondents. Diana Lee Evans, Joseph A. Marino, Atty., F. C. C. and Howard E. Shapiro, Atty., Dept. of Justice, Washington, D. C., also entered appearances for appellee-respondents.
John P. Southmayd, Ben C. Fisher, Grover C. Cooper, Martin R. Leader and Richard R. Zaragoza, Washington, D. C., were on the brief for petitioners-appellants in Nos. 75-1144 and 75-1145.
Norman E. Jorgensen, Beaverton, Or., was on the brief for petitioners-appellants in Nos. 75-1153 and 75-1154.
Thomas J. O'Reilly, Washington, D. C., was on the brief for petitioner in No. 75-1155.
David Cosson, Washington, D. C., was on the brief for appellant-petitioner in Nos. 75-1162 and 75-1163.
Allen R. Frischkorn, Jr., Ruth L. Prokop and William R. Malone, Washington, D. C., were on the brief for appellant-petitioner in Nos. 75-1180 and 75-1181.
Alan Y. Naftalin and Margot Smiley Humphrey, Washington, D. C., were on the brief for appellant-petitioner McGraw-Hill Broadcasting Co., Inc. in Nos. 75-1183 and 75-1184.
John M. Lothschuetz, Mansfield, Ohio, Carolyn C. Hill, Washington, D. C., and Warren E. Baker, Westwood, Kan., were on the brief for petitioner in No. 75-1262.
Joel Yohalem, Washington, D. C., was on the brief for appellant-petitioner in Nos. 75-1270 and 75-1271. Jack Werner and Laurence Singer, Washington, D. C., also entered appearances for appellant-petitioner in Nos. 75-1270 and 75-1271.
Erwin G. Krasnow and Michael O. Wise, Washington, D. C., were on the brief for appellant-petitioner in Nos. 75-1354 and 75-1355.
John N. Papajohn, Washington, D. C., was on the brief for petitioner in No. 75-1520.
Robert E. McKee and Howard A. White, New York City, were on the brief for petitioners in No. 75-1539 J. Laurent Scharff, William H. Fitz and George R. Clark, Washington, D. C., were on the brief for petitioners in No. 75-1596.
James A. McKenna, Jr., Thomas N. Frohock, and Steven A. Lerman, Washington, D. C., were on the brief for petitioners-appellants in Nos. 75-1313, 75-1314, 75-1315, 75-1345, 75-1346, 75-1347, 75-1603 and 75-1640.
Cynthia R. Clarke, Washington, D. C., was on the brief for appellant-petitioner in Nos. 75-1637 and 75-1638.
Robert L. Heald, Edward F. Kenehan and James P. Riley, Washington, D. C., were on the brief for petitioners-appellants in Nos. 75-1185, 75-1186, 75-1413, 75-1414, 75-1746, 75-1747, 75-1689, 75-1690. Frank U. Fletcher and Richard Hildreth, Washington, D. C., entered appearances for appellants in No. 75-1185, and petitioners in No. 75-1186.
John S. Yodice, Washington, D. C., was on the brief for petitioner in No. 75-1827.
John P. Bankson, Jr., Washington, D. C., was on the brief for petitioners-appellants in Nos. 75-1405 and 75-1406.
John D. Lane and Ramsey L. Woodworth, Washington, D. C., were on the brief for petitioner in No. 75-1834.
Robert E. Conn, New York City, entered an appearance for appellant-petitioner in Nos. 75-1846 and 75-1847.
Before TAMM and MacKINNON, Circuit Judges, and KAUFMAN, * United States District Judge for the District of Maryland.
Opinion for the court filed by MacKINNON, Circuit Judge.
Petitioners-appellants 1 in these consolidated cases challenge the validity of a group of final orders 2 of the Federal Communications Commission (FCC) which deny refunds of fees paid under the Commission's 1970 fee schedule. 3 We agree that the fees in question were illegally assessed, and thus that refunds of those fees were improperly denied; we therefore remand these actions to the FCC to determine proper fees and refund the portion illegally collected.
As we explain in greater detail in a companion case decided this same date, 4 the 1970 fee schedule was promulgated by the FCC under the authority of Title V of the Independent Offices Appropriations Act of 1952 (IOAA), 5 which decreed that federal agencies should thereafter assess fees for any "work, service, publication, report, document, benefit, privilege, authority, use franchise, license, permit, certificate, registration, or similar thing of value or utility" conferred by the agency on any person, so that those transactions would be "self-sustaining to the full extent possible." The fee schedule was challenged in the Fifth Circuit by, among others, some of the parties who are now before us, and was upheld by that court in all respects in Clay Broadcasting Corp. of Texas v. United States. 6 Only one party (the National Cable Television Association) sought review of that decision in the Supreme Court, limited to the issue of the validity of the cable television annual fee. 7 In National Cable Television Association v. United States (NCTA), 415 U.S. 336, 344, 94 S.Ct. 1146, 1150, 39 L.Ed.2d 370 (1974), the Court reversed "so that the case can be remanded to the Federal Communications Commission for further proceedings consistent with this opinion."
After remand, the Commission suspended future collection of the annual fee for both broadcast systems and cable television systems pending revision of the 1970 fee schedule, 8 and refunded all cable television annual fees which had been collected under that fee schedule. 9 The remaining fees assessed by the 1970 fee schedule against other regulated industries in the other areas of the Commission's operation, 10 however, were neither refunded nor suspended.
After receiving a number of protests and refund requests on individual fees (other than the cable television annual fee) paid under the 1970 schedule, the FCC issued a series of opinions and orders denying refund requests generally. 11 Those orders form the basis for the instant petitions for review.
The threshold question in these cases is whether petitioners have any basis for seeking recovery since they never appealed the decision in Clay Broadcasting, 12 which upheld the fees now challenged here. The only appeal from that decision was by cable television operators who questioned the validity of their annual fee, which is not at issue here. Thus we must decide whether, by failing to appeal that decision, petitioners waived their rights to challenge the 1970 fee schedule further, and what effect the decision of the Supreme Court in NCTA has upon this question.
Petitioners' first argument is that the Supreme Court, by deciding that the cable television annual fee was improperly measured and by reversing and remanding for further proceedings, 13 effectively struck down the entire 1970 fee schedule. We cannot agree that the Supreme Court's action in NCTA is to be so broadly viewed. As we have already observed, the issue before the Court in that case was specifically limited to the validity of the cable television annual fee; 14 and the language of the Court's opinion, although vague in places cannot be said clearly to go beyond that defined issue. 15
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