Saginaw Broadcasting Co. v. Federal C. Com'n

Decision Date16 March 1938
Docket NumberNo. 6990.,6990.
Citation68 App. DC 282,96 F.2d 554
PartiesSAGINAW BROADCASTING CO. v. FEDERAL COMMUNICATIONS COMMISSION (GROSS et al., Intervenors).
CourtU.S. Court of Appeals — District of Columbia Circuit

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Herbert M. Bingham and Guilford S. Jameson, both of Washington, D. C., for appellants.

Hampson Gary, George Porter, Fanney Neyman, and Frank U. Fletcher, all of Washington, D. C., for appellee.

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

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

STEPHENS, Associate Justice.

This is an appeal taken under Section 402(b) (1) of the Communications Act of 1934, 47 U.S.C.A. § 402(b) (1),1 from an order of the Broadcast Division of the Federal Communications Commission denying the application of the appellant for a radio station construction permit, and granting the application of the intervenors for such a permit.

On September 30, 1935, the Saginaw Broadcasting Company, the appellant (hereinafter referred to as such), filed an application for a permit to construct a radio station in Saginaw, Michigan, to operate on the frequency of 1200 kilocycles with a power of 250 watts until local sunset and 100 watts at night. The hours of operation were to be those portions of the broadcast day not occupied by WMPC, a station already in operation on the same frequency in Lapeer, Michigan, a city 40 miles from Saginaw. On February 21, 1936, Harold F. Gross and Edmund C. Shields, the intervenors (hereinafter referred to as such), filed an application for a permit to construct a station in Saginaw to operate on the frequency of 950 kilocycles with a power of 500 watts. Continuous operation was proposed during the day until local sunset; no broadcasts were to be made at night.

In March, 1936, the Broadcast Division designated these applications for hearing and later a joint hearing was held thereon before a trial examiner. The examiner recommended that the appellant's application be granted, and that that of the intervenors be denied. Oral argument was had before the Broadcast Division on exceptions to the examiner's report. The Division refused to adopt the recommendation of the examiner and entered an order on February 9, 1937, granting the application of the intervenors and denying that of the appellant. The effective date of the order was stated therein to be March 16, 1937. The order, as it appears in the record, contains no findings of fact, but states merely that "The Commission will issue and publish at a subsequent date an opinion setting forth a statement of the facts appearing of record and the grounds for the decision herein reached."2 The Commission's statement of facts and grounds for decision was filed on March 16, 1937, the effective date of the order. On April 2, 1937, the appellant filed an application for rehearing. This was denied by the Commission on June 2, 1937. On June 18, 1937, the appellant filed its notice of appeal and reasons therefor. Within proper time the intervenors filed notice of intention to intervene in the appeal, as provided by Section 402(d) of the Act.

1. At the outset we are confronted by a motion of the Commission to dismiss the appeal upon the ground that the notice of appeal was not filed within the time limit fixed by the statute. Section 402 of the Communications Act provides that an appeal may be taken from decisions of the Commission to the United States Court of Appeals for the District of Columbia, and further that:

"Such appeal shall be taken by filing with said court within twenty days after the decision complained of is effective, notice in writing of said appeal and a statement of the reasons therefor, . . . Unless a later date is specified by the Commission as part of its decision, the decision complained of shall be considered to be effective as of the date on which public announcement of the decision is made at the office of the Commission in the city of Washington. . . ."

Section 5 of the Act, 47 U.S.C.A. § 155, provides that the Commission may divide its members into not more than three divisions, each of which shall have all the jurisdiction and powers of the Commission itself, that any order made or action taken by any division shall have the same force and effect as if made or taken by the Commission, subject to rehearing by the full Commission as provided in Section 405 of the Act, 47 U.S.C.A. § 405, for rehearing cases decided by the full Commission. Section 405 provides:

"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, containing the provisions relating to radio 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. Applications for rehearing shall be governed by such general rules as the Commission may establish. No such application shall excuse any person from complying with or obeying any decision, order, or requirement of the Commission, or operate in any manner to stay or postpone the enforcement thereof, without the special order of the Commission. . . ."

The Commission contends that the right of appeal is governed wholly by the statute and that since the notice of appeal was not filed until June 18, 1937, or more than 20 days after March 16, 1937, the effective date of the order, the right of appeal has been lost. The appellant contends that by filing a petition for rehearing on April 2, 1937, which was within the 20 days allowed by Section 405 for the filing of such petitions, the running of the period within which an appeal might be taken was suspended, and that since the notice of appeal was filed within 20 days after the Commission's final decision on the petition for rehearing, the taking of the appeal was timely.

In the Federal courts the rule is well established that in judicial proceedings the filing of a petition for rehearing, or of a motion for new trial, will suspend the running of the period within which an appeal may be taken, and that this period then begins to run anew from the date on which final action is taken on the petition or motion, whether it be denied or granted. The rule as above stated applies even though a statute fixes the time within which appeal may be taken as a definite period from the entry of judgment. See Wayne United Gas Co. v. Owens-Illinois Glass Co., 1937, 300 U.S. 131, 137, 57 S.Ct. 382, 385, 81 L.Ed. 557, and cases therein cited; Morse v. United States, 1926, 270 U.S. 151, 153, 154, 46 S.Ct. 241, 242, 70 L.Ed. 518, and cases therein cited; cf. Citizens Bank v. Opperman, 1919, 249 U.S. 448, 39 S.Ct. 330, 63 L.Ed. 701.

This rule has been applied by this court, as well as by other circuit courts of appeals, to proceedings before the Board of Tax Appeals. Helvering v. Continental Oil Co., 1933, 63 App.D.C. 5, 68 F.2d 750; Helvering v. Louis, 1935, 64 App.D.C. 263, 77 F.2d 386, 99 A.L.R. 620; Commissioner v. Lincoln-Boyle Ice Co., 7 Cir., 1937, 93 F.2d 26; Burnet v. Lexington Ice & Coal Co., 4 Cir., 1933, 62 F.2d 906; Griffiths v. Commissioner, 7 Cir., 1931, 50 F.2d 782. In these cases the pertinent sections of the Revenue Act provided that the decision of the Board might be reviewed on appeal "within six months after the decison is rendered" and further, that "a decision . . . shall be held to be rendered upon the date that an order specifying the amount of the deficiency is entered in the records of the Board." In each case the appeal was taken more than six months after the order had been entered, but less than six months after the final decision of the Board upon a petition for rehearing. The courts held, nevertheless, that the appeals were timely.

It is an often quoted principle of statutory construction that the literal words of a statute are to be read in the light of the purpose of the statute taken as a whole, and that the literal meaning will not be followed when it appears that to do so would, in view of the purpose of the statute, lead to an absurd or unjust result. See United States v. Katz, 1926, 271 U.S. 354, 357, 46 S.Ct. 513, 514, 70 L.Ed. 986; Hawaii v. Mankichi, 1903, 190 U.S. 197, 212, 213, 23 S.Ct. 787, 47 L.Ed. 1016; Church of the Holy Trinity v. United States, 1892, 143 U.S. 457, 459, 12 S.Ct. 511, 36 L.Ed. 226. The purpose of Congress in providing the administrative remedy of a rehearing must be considered in interpreting the sections of the statute which govern the right of appeal. The object of statutes providing for petitions for rehearing or motions for new trial is to afford opportunity to commissions and trial courts to correct errors or to hear newly discovered evidence before an appeal; but the function of such petitions and motions is not to supplant, but to supplement, that of appellate review. And if the statute here be construed so that a petition for rehearing does not suspend the running of the statutory period for appeal, the administrative benefit to the Commission of such petitions may well be destroyed. Litigants may be discouraged from filing petitions for rehearing because of fear that the right of judicial review may be lost; for it is hardly to be expected that within 20 days a petition for rehearing may be properly prepared by counsel for a defeated applicant, substantially considered by the Commission, and ruled on. It is doubtful, moreover, whether this court would have jurisdiction to entertain an appeal while such a...

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