Pottsville Broadcasting Co. v. FEDERAL C. COMMISSION

• Decision Date: 03 April 1939
• Docket Number: No. 7016.,7016.
• Citation: 105 F.2d 36
• Parties: POTTSVILLE BROADCASTING CO. v. FEDERAL COMMUNICATIONS COMMISSION (SCHUYLKILL BROADCASTING CO., Intervener).
• Court: U.S. Court of Appeals — District of Columbia Circuit

105 F.2d 36 (1939)

POTTSVILLE BROADCASTING CO. v. FEDERAL COMMUNICATIONS COMMISSION (SCHUYLKILL BROADCASTING CO., Intervener).

No. 7016.

United States Court of Appeals for the District of Columbia.

Argued January 10, 1939.

Decided April 3, 1939.

Rehearing Denied May 5, 1939.

Eliot C. Lovett and Charles D. Drayton, both of Washington, D. C., for appellant.

William J. Dempsey, Gen. Counsel, William H. Bauer, Andrew G. Haley, Hampson Gary, Gen. Counsel, George B. Porter, Asst. Gen. Counsel, Fanney Neyman, Asst. Counsel, and Frank U. Fletcher, all of Washington, D. C., for Federal Communications Commission.

Arthur W. Scharfeld, Philip G. Loucks, and Joseph F. Zias, all of Washington, D. C., for Schuylkill Broadcasting Co.

Before GRONER, Chief Justice, and STEPHENS and EDGERTON, Associate Justices.

GRONER, C. J.

Pottsville Broadcasting Company (petitioner) is a Maryland corporation. In May, 1936, it applied to the Federal Communications Commission for a construction permit to erect a radio broadcasting station in Pottsville, Pennsylvania. The application was on the prescribed form and averred that there was public need for the service and that it would not cause objectionable interference with any existing station; that the station would be built and equipped in conformity with the Commission's standards and subject to its approval; that the applicant was legally, technically, and financially qualified; and that the public interest, convenience and necessity would be served by the grant to it of the permit. On July 2, 1936, the application was referred to an examiner; hearings were begun in September; and in October the examiner reported his findings of fact, concluded that the averments of the application had been proved, and recommended the granting of the application. The Commission allowed intervention and exceptions by the Schuylkill Broadcasting Company, which had applied for the same facilities shortly after petitioner's application had been set for hearing, but whose record had not been made. In December, 1936, the Broadcast Division of the Commission set petitioner's application down for oral argument. In May, 1937, the Commission handed down its decision, denying petitioner's application. In its statement of facts and decision the Commission said there existed a need for local service in Pottsville; that the equipment proposed to be used was capable of operating in conformity with the technical rules and regulations of the Commission; but that the showing of financial ability was not satisfactory; and for that reason it was not in the public interest to grant the license. The Commission added that the principal stockholder of the applicant did not reside in Pottsville, had no definite plans for spending a "percentage of his time" there, and had failed to show he was acquainted with the needs of the area proposed to be served and prepared to meet those needs.

From the order denying the application there was an appeal to this court. In May, 1938, we decided that the Commission was in error in holding that petitioner had not shown adequate financial responsibility, and on this ground reversed the order. 69 App.D.C. 9, 98 F.2d 288. As to the Commission's general inference, i.e., that it is desirable that those who control the policies of a local station should show themselves acquainted with the needs of the locality, we said that we knew from published reports of the Commission that it had not adopted a fixed and definite policy in that respect, nor sought to lay down a hard and fast rule; and in this view, and considering the good faith of the applicant and the conclusion of the Commission that the establishment of a station in Pottsville was desirable and in the public interest, we would without expressing any opinion of our own leave that question for reconsideration by the Commission.

When the case was remanded, petitioner asked the Commission to reconsider and grant its application. It pointed out that the Commission had never adopted a policy requiring a majority stockholder in the applicant corporation for a local station to be a resident of the area to be served. And it insisted that, since the application was not for a "local station" anyway, the question was not pertinent, and there was consequently nothing more to consider. The Commission, however, refused to accede to this position and entered an order for a new hearing on the applications of petitioner, Pottsville News and Radio Corporation (whose application had been filed seven months after the petitioner's), and Schuylkill Broadcasting Company. The Commission announced that it would hear and consider the applications "individually on a comparative basis, the application which in the judgment of the Commission will best serve public interest to be granted".

To prevent the carrying out of this order, petitioner applied to this court for a writ to prohibit the Commission from taking any steps or exercising any jurisdiction except as required by the judgment of this court and for a writ of mandamus to require the Commission to grant the application of the petitioner on the record as submitted to and considered by this court. The Commission answered and insists that neither prohibition nor mandamus may be invoked to restrain it from exercising at any time its regulatory power conferred by law, or to circumscribe its discretion.

Stated in abridged form, the positions of the parties are these:

Petitioner insists that the order of the Commission indicates a definite intention to disregard the decision and mandate of this court, to consider petitioner's application de novo, and to compel petitioner to contest its rights with new parties who were not parties to the original hearing and were never eligible to become parties under the Commission's rule,¹ and in consequence to base its new decision upon facts not properly before it.

The position of the Commission is that the order of this court was not final; that this court merely reversed the former order of the Commission and remanded the cause to it for further proceedings; and that in this aspect it is within its discretion to combine petitioner's application and other subsequently filed applications, thus placing all on a parity and reaching a conclusion on a comparative basis.

In view of what has been said, it will be obvious at once that the question we have to decide is: When this court reverses a decision of the Commission and remands the case for further proceedings, is the Commission required to reconsider the same record in the light of our opinion, or may it reopen the cause and hear it on an entirely new and different record? The Commission takes the latter view and insists that the statute, by conferring broad regulatory power and discretion in the granting of licenses, imposes upon it the power and the duty, upon remand, to reconsider the application in the light of events subsequent to the making of the original record. Stated in terms of this particular case, the question is whether the Commission, having decided that the petitioner was qualified in particular respects, may now disregard petitioner's priority and the case made by it and consider its application on a comparative basis with subsequent applications on records made after the Commission's original decision.

Sec. 402 of the Act, 47 U.S.C.A. § 402, applies to appeals from decisions of the Commission, and Sec. 402(e) provides: "At the earliest convenient time the court shall hear and determine the appeal upon the record before it, and shall have power, upon such record, to enter a judgment affirming or reversing the decision of the Commission, and in event the court shall render a decision and enter an order reversing the decision of the Commission, it shall remand the case to the Commission to carry out the judgment of the court * * *. The court's judgment shall be final, subject, however, to review by the Supreme Court of the United States upon writ of certiorari * * *."

We have no doubt that as far as is practicable the order of the court entered on an appeal from the Commission ought to have the same effect and be governed by the same rules as apply in appeals from a lower federal court to an appellate federal court in an equity proceeding. The rule in such cases is stated in Sanford Fork & Tool Co., Petitioner, 160 U.S. 247, 16 S. Ct. 291, 40 L.Ed. 414, restated in Re Potts, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994, and confirmed in Delaware L. & W. R. Co. v. Rellstab, 276 U.S. 1, 48 S.Ct. 203, 72 L. Ed. 439. Shortly stated, the rule is that when a...