Presque Isle TV Co. v. United States, 6896

• Decision Date: 18 December 1967
• Docket Number: 6897.,No. 6896,6896
• Citation: 387 F.2d 502
• Parties: PRESQUE ISLE TV CO., Inc., Johnston TV Company, Inc., Caribou TV, Inc., Petitioners, v. UNITED STATES of America and Federal Communications Commission, Respondents. VAN BUREN TV CABLE CO., Inc., Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents.
• Court: U.S. Court of Appeals — First Circuit

387 F.2d 502 (1967)

PRESQUE ISLE TV CO., Inc., Johnston TV Company, Inc., Caribou TV, Inc., Petitioners, v. UNITED STATES of America and Federal Communications Commission, Respondents.

VAN BUREN TV CABLE CO., Inc., Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents.

Nos. 6896, 6897.

United States Court of Appeals First Circuit.

December 18, 1967.

Lee G. Lovett, Washington, D. C., with whom Joseph F. Hennessey, John N. Papajohn and Booth & Lovett, Washington, D. C., were on brief, for petitioners.

Lenore G. Ehrig, Washington, D. C., Counsel, with whom Henry Geller, Gen. Counsel, John H. Conlin, Associate Gen. Counsel, Edward J. Kuhlmann, Counsel, Donald F. Turner, Asst. Atty. Gen., and Howard E. Shapiro, Atty., Dept. of Justice, were on brief, for respondents.

Herbert M. Schulkind, Washington, D. C., with whom Peter Shuebruk, Howard Jay Braun and Fly, Shuebruk, Blume & Gaguine, Washington, D. C., were on brief, for intervenor.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

Petitioners, who operate community antenna television systems (CATV) in northern Maine, seek review of a Memorandum Opinion and Order of the Federal Communications Commission. Northern Microwave Service, Inc., 1967, 7 FCC2d 115. A CATV system¹ picks up television signals by means of high antennae and distributes them to the homes of individual subscribers within the community served by the system. Section 74.1103 of the FCC rules, 47 C.F.R. § 74.1103, requires that CATV carry local stations, since a subscriber cannot, without extra equipment, receive any station not carried on CATV, and since it is thought desirable to protect local stations against outsiders. Presque Isle, in northern Maine, and the surrounding area are served by only one American commercial television station, WAGM-TV. Competition is provided to WAGM, however, by CHSJ-TV originating in St. John, New Brunswick, Canada, through its satellite station, CHSJ-TV-1 in Bon Accord, New Brunswick, hereafter Bon Accord. Petitioners' CATV systems carry Bon Accord as well as WAGM. As the only commercial American station, WAGM is an affiliate of all three American networks, CBS, NBC and ABC. Its licensee, Aroo-stook Broadcasting Corp., appears herein as an intervenor on the side of the Commission.

The present controversy arises from the fact that Canadian stations pre-release American network programming. Section 74.1103(f) provides for same-day nonduplication: when a distant station carries a program on the same day as a local station, the distant station's broadcast may not be carried on CATV if the local station gives appropriate notice. This is sufficient protection against American competition, but Canadian stations prerelease a week or more in advance. WAGM sought a special fifteen-day nonduplication order to protect it against the problems peculiar to Canadian prerelease. Petitioners not only opposed WAGM's request, but sought a complete waiver of section 74.1103(f) as to same-day nonduplication on the ground that Bon Accord's signals as received without CATV by antenna throughout the area served by WAGM were as strong or stronger than WAGM's. After a summary proceeding, the Commission more than granted WAGM's request, and denied that of petitioners.² It ordered that:

"The CATV systems shall not present in advance via a foreign station any domestic network program which is proposed to be broadcast by a U. S. television station entitled to and requesting program exclusivity under Section 74.1103, where such program is carried by said U. S. station on the date of initial domestic network presentation and, if a prime time program, entirely within prime time."

Petitioners' initial claim before us is that the Commission lacks jurisdiction with respect to CATV. For this they rely upon Southwestern Cable Co. v. United States, 9 Cir., 1967, 378 F.2d 118, cert. granted 389 U.S. 911, 88 S.Ct. 235, 19 L.Ed.2d 258. Contra, Buckeye Cablevision, Inc. v. FCC, D.C.Cir., 1967, 387 F. 2d 220. The Commission counters that this issue is foreclosed by 47 U.S.C. § 405, which, in substance, provides that no "questions of fact or law" can be brought to the reviewing court unless they have been raised before the Commission either initially or by a petition for rehearing.³ Petitioners reply that jurisdiction is an exception. The statute does not purport to make any exception. We must determine, accordingly, whether this exception is to be implied, or, if not intended, is nevertheless required. We answer both questions in the negative.

Jurisdiction, even over the subject matter, may involve factual issues. In such an event there is every reason why the agency should pass upon the question initially, Myers v. Bethlehem Shipbuilding Corp., 1938, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638, and why Congress should wish to provide that the issue was foreclosed if the agency was not given the opportunity to do so. NLRB v. Community Motor Bus Co., 4 Cir., 1964, 335 F.2d 120; see Marshall Field & Co. v. NLRB, 1943, 318 U.S. 253, 63 S.Ct. 585, 87 L.Ed. 744. An expression of the agency's views may also be of value when jurisdiction is solely a question of law.⁴ NLRB v. Hearst Publications, Inc., 1944, 322 U.S. 111, 130-131, 64 S.Ct. 851, 88 L.Ed. 1170; Macauley v. Waterman S.S. Corp., 1946, 327 U.S. 540, 66 S.Ct. 712, 90 L.Ed. 839; NLRB v. International Union of Operating Engineers, 3 Cir., 1966, 357 F.2d 841. Indeed, most issues of law considered in judicial review of agency decisions center around the scope of the agency's power. Unless it was obliged to, a matter which we will discuss later, we have no reason to suppose that Congress intended an exception in section 405 simply because the question of fact or law was that of the agency's power.

In advancing the broad proposition that the issue of jurisdiction "is always open" petitioners cite principally cases involving appellate review of lower court decisions. E. g., Louisville & N. R. R. v. Mottley, 1908, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126. However, this review is, in all strictness, but a continuation of the original process. As the Court pointed out in Treinies v. Sunshine Mining Co., 1939, 308 U.S. 66, 70, 60 S.Ct. 44, 84 L. Ed. 85, the issue affects the jurisdiction of the appellate court itself. To hold inquiry foreclosed, if in fact there was no jurisdiction, would be a usurpation of authority that Congress had not conferred. Cf. Mansfield, C. & L. M. Ry. v. Swan, 1884, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462. Whether the result would be the same if Congress were expressly to provide that jurisdiction is to be assumed if not contested at the district court level is another matter.

The more troublesome cases are those where similar observations have been expressed in the course of proceedings brought to review agency decisions. In some no reference has been made to statutory limitations upon the right to seek review. United States v. L. A. Tucker Truck Lines, Inc., 1952, 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54; Manual Enterprises, Inc. v. Day, 1962, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, opinion of Mr. Justice Brennan at 499, n. 5, 82 S.Ct. at 1443. In some the Court refused to allow nonjurisdictional issues to be raised, noting briefly, in passing, that there might be an exception for jurisdiction. NLRB v. Ochoa Fertilizer Corp., 1961, 368 U.S. 318, 82 S.Ct. 344, 7 L.Ed.2d 312; United States v. L. A. Tucker Truck Lines, Inc., supra. Thus in Ochoa at 322 of 368 U.S., at 347 of 82 S.Ct., quoting the earlier case of NLRB v. Cheney California Lumber Co., 1946, 327 U.S. 385, 388, 66 S.Ct. 553, 90 L.Ed. 739, the Court mentioned a possible exception where the agency "patently traveled outside the orbit of its authority." When this would be, the Court did not say. We have found no decision in fact reversing an agency's finding of jurisdiction when the issue was first contested on review.

In the light of the express limitation that Congress has placed upon the scope of administrative review it seems to us that we need not expand the reservations that the Court has expressed, and, indeed, that we may construe those reservations strictly. This would impinge upon no constitutional right of the petitioners. Section 405 clearly does not mean that they could not, if diligent, have had a full and fair hearing. Cf. Crowell v. Benson, 1932, 285 U.S. 22, 42-65, 52 S. Ct. 285, 76 L.Ed. 598; NLRB v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 46-49, 57 S.Ct. 615, 81 L.Ed. 893. Even where review of an agency decision is constitutionally required, reasonable limitations may be imposed, including limitations ensuring that objections will be raised at the proper time. Yakus v. United States, 1944, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834; cf. Phillips v. Commissioner of Internal Revenue, 1931, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289. The reasonableness of requiring an early questioning of jurisdiction we have already adverted to.

So far as effective waiver is concerned there is nothing peculiarly sacrosanct about subject matter jurisdiction. As the court held in Treinies v. Sunshine Mining Co., supra, 308 U.S. at 74-78, 60 S.Ct. 44, one may, by failing to appeal, permit a finding of subject matter jurisdiction to become res judicata and beyond further attack. See Chicot County Drainage District v. Baxter State Bank, 1940, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329; Dowell v. Applegate, 1894, 152 U.S. 327, 14 S.Ct. 611, 38 L.Ed. 463, and cases cited; C. A. Wright, Federal Courts 44-45 (1963). We see no distinction, with respect to due process, between losing the right to contest jurisdiction by not pursuing the proper method of review, and losing it by not pursuing the proper method of contesting it in the first place. Indeed, even fundamental constitutional rights may be waived if not initially asserted. See Henry v. State of Mississippi, 1965, 379 U.S. 443, 85 S.Ct. 564,...