Red River Broadcasting Co. v. Federal C. Commission, No. 6906.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtGRONER, Justice, and STEPHENS and MILLER, Associate Justices
Citation69 App. DC 1,98 F.2d 282
Decision Date02 May 1938
Docket NumberNo. 6906.
PartiesRED RIVER BROADCASTING CO., Inc., v. FEDERAL COMMUNICATIONS COMMISSION (BAXTER, Intervener).

69 App. DC 1, 98 F.2d 282 (1938)

RED RIVER BROADCASTING CO., Inc.,
v.
FEDERAL COMMUNICATIONS COMMISSION (BAXTER, Intervener).
*

No. 6906.

United States Court of Appeals for the District of Columbia.

Decided May 2, 1938.


98 F.2d 283
COPYRIGHT MATERIAL OMITTED
98 F.2d 284
Paul M. Segal, George S. Smith, and Harry P. Warner, all of Washington, D. C., for appellant

Hampson Gary, George B. Porter, Fanney Neyman, and Frank U. Fletcher, all of Washington, D. C., for Federal Communications Commission.

Ben S. Fisher, of Washington, D. C., for intervener.

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

MILLER, Associate Justice.

Red River Broadcasting Company, Inc. appealed, under Sections 402(b) and 402(c) of the Communications Act of 1934,1 from a decision of the Federal Communications Commission granting a permit to Fred A. Baxter, intervener herein, for the construction of a broadcasting station at Superior, Wisconsin. A motion to dismiss the appeal was filed by intervener upon the ground, among others, that appellant has failed to exhaust all its remedies before the Commission, and, hence, has not brought itself into a position to invoke the jurisdiction of this court. We are of the opinion that this motion should be granted and the appeal dismissed.

Appellant is the licensee of a station at Duluth, Minnesota. It was not made a party to the hearing before the Commission on the Baxter application; nor did it attempt to become a party thereto by intervention. It seeks to enter the proceedings for the first time on this appeal, pursuant to Section 402(b)(2) of the Communications Act, claiming that it is aggrieved by the decision of the Commission because that decision was made without consideration of its probable deleterious economic effects upon appellant. Section 402 (b) provides that an appeal may be taken to this court from a decision of the Commission (1) "By any applicant . . . whose application is refused by the Commission"; (2) "By any other person aggrieved or whose interests are adversely affected by any decision of the Commission granting or refusing any such application."2

However, it is a well-settled rule of judicial administration that no one is entitled to judicial relief until he has exhausted all prescribed, applicable, administrative remedies.3 Generally, the rule is stated as being conclusive of the rights of one who prematurely seeks judicial review, without intimation or suggestion that any judicial discretion is involved in its application.4 In any event, no contention is made,

98 F.2d 285
and no situation appears in the present case which calls for the exercise of such discretion.5

The language of section 4(j) of the Communications Act (48 Stat. 1066, 47 U. S.C.A. § 154(j) (Supp.1937)) indicates that Congress intended interested and aggrieved persons to appear before the Commission and there assert their rights. See Berry, Communications by Wire and Radio 214. So far as applicable that section reads: "Any party may appear before the Commission and be heard in person or by attorney." Although the word party is used, the interpretation placed upon the word by the Commission in its rules clearly integrates the concept of the interested person with the concept of party. Section 4(i) of the Act (48 Stat. 1066, 47 U.S.C.A. § 154(i) (Supp.1937)) authorizes the Commission to make such rules and regulations, not inconsistent with the provisions of the Act, as may be necessary in the execution of its functions. Such regulations of an administrative body have the force and effect of law. See Maryland Casualty Co. v. United States, 251 U.S. 342, 349, 40 S.Ct. 155, 157, 64 L.Ed. 297; United States v. Morehead, 243 U.S. 607, 37 S.Ct. 458, 61 L.Ed. 926; United States v. Birdsall, 233 U.S. 223, 231, 34 S.Ct. 512, 58 L.Ed. 930.

An examination of the Act, the Commission's rules and the cases, suggests that several remedies may have been available to appellant, i. e.: (1) intervention, under Rules 105.20, 102.1, 102.6, 106.7; (2) petition for continuance or extension of time, under Rule 106.5; (3) petition for hearing, under Rule 106.2; and (4) application for rehearing, under section 405 of the Act (48 Stat. 1095, 47 U.S.C.A. § 405 (Supp. 1937)) as follows:

"After a decision, order, or requirement has been made by the Commission in any proceeding, any party thereto may at any time make application for rehearing of the same, or any matter determined therein, and it shall be lawful for the Commission in its discretion to grant such a rehearing if sufficient reason therefor be made to appear: Provided, however, That in the case of a decision, order, or requirement made under Title III of this chapter, the time within which application for rehearing may be made shall be limited to twenty days after the effective date thereof, and such application may be made by any party or any person aggrieved or whose interests are adversely affected thereby. . . ." Italics supplied

It will be observed that the privilege of applying for a rehearing under this section is expressed in language almost identical with that used in Section 402(b)(2) under which appellant claims the privilege of appealing to this court, i. e., ". . . any other person aggrieved or whose interests are adversely affected . . ." Section 405 further provides as follows:

". . . In case a rehearing is granted, the proceedings thereupon shall conform as nearly as may be to the proceedings in an original hearing, except as the Commission may otherwise direct; and if, in its judgment, after such rehearing and the consideration of all facts, including those arising since the former hearing, it shall appear that the original decision, order, or requirement is in any respect unjust or unwarranted, the Commission may reverse, change, or modify the same accordingly. Any decision, order, or requirement made after such rehearing, reversing, changing, or modifying the original determination, shall be subject to the same provisions as an original order."

This section, it will be observed, thus makes provision for complete relief for one in the position of appellant, assuming that, for one reason or another, the other three remedies were not available to it.

98 F.2d 286

Appellant does not deny that it failed to avail itself of any of the four remedies suggested, but it contends that it should not be barred from relief in this case because the record fails to disclose that formal notice was given to it by the Commission concerning the hearing on the Baxter application, and, consequently, that the obligation to pursue its administrative remedies was not operative. Under some circumstances the Communications Act requires that formal notice shall be given — as in the case of an applicant upon a hearing of its application for a station license or for renewal or modification thereof (48 Stat. 1085, § 309(a), 47 U.S.C.A. § 309(a) (Supp.1937)); revocation or modification of a station license (48 Stat. 1086, § 312, 47 U.S.C.A. § 312 (Supp.1937); Saltzman v. Stromberg-Carlson Tel. Mfg. Co., 60 App. D.C. 31, 46 F.2d 612; Courier-Journal Co. v. Federal Radio Comm., 60 App.D.C. 33, 46 F.2d 614); alteration by the Commission in the required manner or form of keeping accounts (48 Stat. 1078, § 220(g), 47 U.S. C.A. § 220(g) (Supp.1937)); suspension of an operator's license (48 Stat. 1082, § 303 (m)(2), as amended, 50 Stat. 190, 47 U.S. C.A. § 303(m)(2) (Supp.1937)); or the taking of depositions. 48 Stat. 1096, § 409(e), 47 U.S.C.A. § 409(e) (Supp.1937). But that is not the situation in the present case. There is nothing in the Act which requires such notice, under the circumstances here present, or makes it a prerequisite to the seeking of administrative remedies, which are otherwise available.

It is true — assuming that the appellant is a licensee ". . . who would be aggrieved, or whose interests would be adversely affected . . . ." within the meaning of the Commission's Rule 102.8 — that the Commission may have obligated itself voluntarily to give formal notice to appellant concerning the hearing on the Baxter application, by its action in adopting Rules 102.1 and 106.3. It is not necessary for us to decide whether appellant comes within the provisions...

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59 practice notes
  • Fahey v. O'Melveny & Myers, No. 12591.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 17, 1952
    ...Lime & Cement Co. v. Williams, 182 Cal. 691, 180 P. 838. 20 Red River Broadcasting Co. v. Federal Communications Comm., 69 App.D.C. 1, 98 F.2d 282, 287. See Marshall v. Pletz, 317 U.S. 383, 388, 63 S.Ct. 284, 87 L.Ed. 348; Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 444, 50 S.Ct. ......
  • Utah Fuel Co. v. National Bituminous Coal Commission, No. 7247.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 5, 1938
    ...266 U.S. 265, 269, 270, 45 S. Ct. 80, 69 L.Ed. 279; Red River Broadcasting Co., Inc. v. Federal Communications Comm., 69 App.D.C. 3, 98 F.2d 282, 284, certiorari denied 59 S.Ct. 86, 83 L. Ed. ___. Cf. Natural Gas Pipeline Co. v. Slattery, 302 U.S. 300, 311, 58 S.Ct. 199, 82 L.Ed. 276; Unite......
  • First Iowa Hydro-Electric Coop. v. Federal Power Com'n, No. 8752.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 13, 1945
    ...effect the purposes of a license under this chapter." 2 Red River Broadcasting Co. v. Federal Communications Commission, 69 App.D.C. 1, 3, 98 F.2d 282, 284, and authorities cited, note 3 Highland Farms Dairy, Inc., v. Agnew, 300 U.S. 608, 616, 617, 57 S.Ct. 549, 553, 81 L.Ed. 835; see also ......
  • Yankee Network v. Federal Communications Com'n, No. 7250.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 14, 1939
    ...but for protecting existing rights and interests. See Red River Broadcasting Co., Inc. v. Federal Communications Comm., 69 App.D.C. 1, 5, 98 F.2d 282, 286, certiorari denied 305 U.S. 625, 59 S.Ct. 86, 83 L.Ed. In the same manner as the rights and equities of licensees are statutory in chara......
  • Request a trial to view additional results
59 cases
  • Fahey v. O'Melveny & Myers, No. 12591.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 17, 1952
    ...Lime & Cement Co. v. Williams, 182 Cal. 691, 180 P. 838. 20 Red River Broadcasting Co. v. Federal Communications Comm., 69 App.D.C. 1, 98 F.2d 282, 287. See Marshall v. Pletz, 317 U.S. 383, 388, 63 S.Ct. 284, 87 L.Ed. 348; Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 444, 50 S.Ct. ......
  • Utah Fuel Co. v. National Bituminous Coal Commission, No. 7247.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 5, 1938
    ...266 U.S. 265, 269, 270, 45 S. Ct. 80, 69 L.Ed. 279; Red River Broadcasting Co., Inc. v. Federal Communications Comm., 69 App.D.C. 3, 98 F.2d 282, 284, certiorari denied 59 S.Ct. 86, 83 L. Ed. ___. Cf. Natural Gas Pipeline Co. v. Slattery, 302 U.S. 300, 311, 58 S.Ct. 199, 82 L.Ed. 276; Unite......
  • First Iowa Hydro-Electric Coop. v. Federal Power Com'n, No. 8752.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 13, 1945
    ...effect the purposes of a license under this chapter." 2 Red River Broadcasting Co. v. Federal Communications Commission, 69 App.D.C. 1, 3, 98 F.2d 282, 284, and authorities cited, note 3 Highland Farms Dairy, Inc., v. Agnew, 300 U.S. 608, 616, 617, 57 S.Ct. 549, 553, 81 L.Ed. 835; see also ......
  • Yankee Network v. Federal Communications Com'n, No. 7250.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 14, 1939
    ...but for protecting existing rights and interests. See Red River Broadcasting Co., Inc. v. Federal Communications Comm., 69 App.D.C. 1, 5, 98 F.2d 282, 286, certiorari denied 305 U.S. 625, 59 S.Ct. 86, 83 L.Ed. In the same manner as the rights and equities of licensees are statutory in chara......
  • Request a trial to view additional results

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