Pleasant Broadcasting Co. v. F. C. C.

• Decision Date: 01 August 1977
• Docket Number: Nos. 76-1511,76-1593 and 75-2121,s. 76-1511
• Citation: 564 F.2d 496
• Parties: , 2 Media L. Rep. 2277 PLEASANT BROADCASTING COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. PLEASANT BROADCASTING COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. WIYN RADIO, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 496

564 F.2d 496

184 U.S.App.D.C. 11, 2 Media L. Rep. 2277

PLEASANT BROADCASTING COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.

PLEASANT BROADCASTING COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents.

WIYN RADIO, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents.

Nos. 76-1511, 76-1593 and 75-2121.

United States Court of Appeals, District of Columbia Circuit.

Argued March 23, 1977.

Decided Aug. 1, 1977.

Lauren A. Colby, Washington, D. C., for appellant in No. 76-1511 and petitioner in No. 76-1593.

Raymond L. Strassburger, Counsel, F. C. C., Washington, D. C., with whom Werner K. Hartenberger, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, Stephen A. Sharp, Counsel, F. C. C., Carl R. Lawson and Joen Grant, Attys., Dept. of Justice, Washington, D. C., were on the brief, for appellee in No. 76-1511 and respondent in No. 76-1593.

Morton L. Berfield, Washington, D. C., with whom Lewis I. Cohen, Washington, D. C., was on the brief, for petitioner.

Stephen A. Sharp, Counsel, F. C. C., Washington, D. C., with whom Werner K. Hartenberger, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, F. C. C., Barry Grossman and Carl Lawson, Attys., Dept. of Justice, Washington, D. C., were on the brief, for respondents.

Ashton R. Hardy, Gen. Counsel, F. C. C., Washington, D. C., at the time the record was filed, also entered an appearance for Federal Communications Commission.

Before McGOWAN, ROBINSON and WILKEY, Circuit Judges.

Opinion for the Court filed by McGOWAN, Circuit Judge.

McGOWAN, Circuit Judge:

These cases, although argued separately, raise the same threshold issue: whether the court of appeals has jurisdiction to entertain petitions for review of Federal Communications Commission orders imposing monetary forfeitures on broadcast licensees. By an order entered today, the cases have been consolidated for decision. On the basis of the reasons set forth below, we hold that section 504 of the Communications Act of 1934, as amended, 47 U.S.C. § 504 (1970), vests exclusive jurisdiction in the district courts to review, in the first instance, licensee challenges to forfeiture orders, and accordingly dismisses the petitions for review filed herein.

I

Section 503(b) of the Communications Act, 47 U.S.C. § 503(b) (1970), added by the Communications Act Amendments of 1960, Pub.L. 86-752, § 7(a), 74 Stat. 894-95, provides the FCC with authority to assess forfeitures of up to $1,000 per violation against any broadcast licensee who "willfully or repeatedly fails to observe any of the provisions of (the Communications) Act or of any rule or regulation of the Commission prescribed under authority of (the) Act. . . ." 47 U.S.C. § 503(b)(1)(B). Assessment of a forfeiture must be preceded by written "notice of apparent liability," setting forth the nature of the alleged violation, and by an opportunity for the licensee to show in writing why he should not be held liable. 47 U.S.C. § 503(b)(2). ¹

Under section 504(a) of the Act, forfeitures imposed by the Commission are recoverable, absent voluntary payment, only in civil proceedings brought by United States Attorneys in the district courts. See 47 U.S.C. § 504(a) (1970). See also 28 U.S.C. § 1355 (1970). The 1960 Amendments, while expanding the Commission's powers through enactment of section 503(b), inserted language into section 504(a) specifying that in such suits for recovery the Commission's findings and conclusions shall be subject to trial de novo. Communications Act Amendments of 1960, supra, § 7(b), 74 Stat. 895. ² The Amendments also added a new subsection to section 504 providing that "(i)n any case where the Commission issues a notice of apparent liability looking toward the imposition of a forfeiture . . ., that fact shall not be used, in any other proceeding before the Commission, to the prejudice of the person to whom such notice was issued, unless (i) the forfeiture has been paid, or (ii) a court of competent jurisdiction has ordered payment of such forfeiture, and such order has become final." Id., § 7(d), now codified at 47 U.S.C. § 504(c) (1970).

Petitioners in the instant cases are two broadcast licensees who are requesting that the respective forfeiture orders entered against them by the Commission under section 503(b) be set aside. As of this date, the forfeitures in question have neither been paid nor made the subject of collection proceedings in the district court. Each petitioner seeks review in this court on the basis of the administrative record compiled before the Commission; and each has represented that, if we uphold the order against it, it will pay the forfeiture without pressing its right to a trial de novo in the district court under section 504.

In Nos. 76-1511, 76-1593, Pleasant Broadcasting Co. v. FCC, the Commission imposed a $500 forfeiture on Pleasant Broadcasting Co. for "repeatedly violating a Commission rule requiring that the operating power of broadcast stations be maintained at a level not exceeding 105 per cent of the authorized amount. 47 C.F.R. § 73.267(b)(1). In its response to the notice of apparent liability, Pleasant had conceded the fact of violation, explaining that the over-power operations, asserted by the Commission to have occurred on 26 occasions on twelve separate dates in October 1974, had resulted from Pleasant's use of an erroneous method for measuring output power. Pleasant contended, however, that use of this method stemmed from a misunderstanding of the Commission's rules, and was terminated upon notice from the Commission that Pleasant was operating in violation of those rules. Pleasant argued that, in light of these circumstances, it had engaged only in a single, continuing violation of the over-power regulation, and not a "repeated" violation within the meaning of section 503(d)(1)(B) of the Communications Act.

The Commission's order rejected Pleasant's construction of the Act, citing Friendly Broadcasting Co., 45 FCC 46, 49-50 (1962), for the proposition that "repeatedly" simply means more than once, and does not require deliberate repetition following a warning. Pleasant's sole contention in this court, on the merits, is that the Commission's interpretation of the word "repeatedly" was erroneous as a matter of law. In No. 76-1511, Pleasant advances this contention in the form of a special appeal under section 402(b) of the Act, 47 U.S.C. § 402(b) (1970); ³ and in No. 76-1593, a petition for review under section 402(a) of the Act, 47 U.S.C. § 402(a) (1970), has been filed. ⁴

No. 75-2121, WIYN Radio, Inc. v. FCC, involves a forfeiture of $1000 assessed against WIYN Radio, Inc. for what the Commission found to be a "repeated" violation of its Personal Attack Rule, 47 C.F.R. § 73.123, a component of the Fairness Doctrine. That Rule provides in relevant part:

(a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than 1 week after the attack, transmit to the person or group attacked (1) notification of the date, time and identification of the broadcast; (2) a script or tape (or an accurate summary if a script or tape is not available) of the attack; and (3) an offer of a reasonable opportunity to respond over the licensee's facilities.

Id. § 73.123(a).

Following a complaint from the Director of the Institute for American Democracy (IAD), a notice of apparent liability to WIYN, and WIYN's response, the Commission held that remarks made on a program broadcast by WIYN on April 23, 1971 constituted a personal attack on IAD and its newsletter, and were delivered during a discussion of a controversial issue of public importance. ⁵ Since WIYN did not offer IAD an opportunity to respond to the remarks until twenty-seven days after the broadcast, the Commission concluded that the Personal Attack Rule had been violated; and, on the ground that a separate offense occurred during each of the 20 days WIYN failed to notify IAD and offer it reply time, after the seven-day period specified in the Rule had lapsed, the Commission found that WIYN had engaged in a "repeated" violation within the meaning of the forfeiture statute.

WIYN seeks review in this court under section 402(a) of the Communications Act. In support of its contention that the forfeiture order should be set aside, WIYN asserts that the Commission arbitrarily departed from its own policies and precedents in holding that (1) the remarks in question constituted a personal attack, (2) they occurred during the presentation of a controversial issue of public importance, and (3) assessment of a forfeiture was warranted.

II

At the outset, we note that Pleasant Broadcasting Co. now concedes that it does not fall within any of the jurisdictional categories enumerated in section 402(b), see note 3 supra, and accordingly we dismiss the appeal in No. 76-1511 which is grounded in that statute. The question remaining for decision is whether the petitions for review under section 402(a) in Nos. 76-1593 and 75-2121 are barred by the provisions of section 504. Notwithstanding the rather open-ended language of section 402(a), see note 4 supra, we conclude that section 504 establishes the district court as the exclusive forum for review of forfeiture orders in the first instance.

Although section 504(a) by its terms makes no provision for initiation of judicial review by persons subjected to forfeiture orders, but see p. 502 infra, it clearly provides such persons with an opportunity to obtain full review of the Commission's findings, in a trial de novo in the district court, in the proceeding which the Government must bring if it wishes to collect the fine. And section 504(c) prevents the existence of a...