Schurz Communications, Inc. v. F.C.C., s. 91-2350

• Decision Date: 16 February 1993
• Docket Number: 91-1484,92-1120,92-1117,91-2597,91-2598,91-2684,Nos. 91-2350,91-2855,s. 91-2350
• Citation: 982 F.2d 1057
• Parties: SCHURZ COMMUNICATIONS, INC., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. , and 91-2883.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1057

982 F.2d 1057

SCHURZ COMMUNICATIONS, INC., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.

Nos. 91-2350, 91-1484, 92-1117, 91-2855, 91-2598, 91-2684,

91-2597, 92-1120, and 91-2883.

United States Court of Appeals Seventh Circuit.

Submitted Nov. 18, 1992.

Decided Nov. 23, 1992.

Amended, and Opinion Published, Dec. 8, 1992.

Order Denying Petition for Rehearing

and Rehearing En Banc

Feb. 16, 1993.

Gregory M. Schmidt, Martin Wald, Covington & Burling, Washington, DC, for petitioner CBS Television Network Affiliates Ass'n.

James F. Rill, Dept. of Justice, Antitrust Div., Robert Pettit, Daniel M. Armstrong (argued), Sue Ann Kanter, F.C.C., Washington, DC, for respondent F.C.C.

Catherine G. O'Sullivan, James F. Rill, Dept. of Justice, Antitrust Div., Appellate Section, Robert Pettit, F.C.C., Nancy C. Garrison, Dept. of Justice, Antitrust Div., Appellate Section, Washington, DC, for respondent U.S.

John D. Lane, Ramsey L. Woodworth, Robert M. Gurss, Wilkes, Artis, Hedrick & Lane, Washington, DC, for intervenor-respondent Program Producers and Distributors Committee.

Ian D. Volner, J. Brian DeBoice, Cohn & Marks, Washington, DC, for intervenor-respondent King World Productions, Inc.

James J. Popham, Ass'n of Independent Television Stations, Inc. Washington, DC, for intervenor-respondent Ass'n of Independent Television Stations, Inc.

Charles J. Sennet, David D. Hiller, Tribune Co., Chicago, IL, for intervenor-respondent Tribune Broadcasting Co.

George H. Shapiro (argued), Marilyn D. Sonn, Arent, Fox, Kintner, Plotkin & Kahn, Washington, DC, for intervenors-respondents Chris Craft Television, Inc. and United Television, Inc.

Robert J. Bates, Jr., Pope & John, Chicago, IL, for intervenor-respondent Channel 50 TV Corp.

Richard R. Zaragoza, Fisher, Wayland, Cooper & Leader, Washington, DC, for petitioner and intervenor-respondent FBC Television Affiliates Ass'n.

Richard E. Wiley, Lawrence W. Secrest, III, James R. Bayes, Ellen O. Kaden, Mark W. Johnson, Wiley, Rein & Fielding, Washington, DC, David L. Shapiro, Cambridge, MA, for petitioner and intervenor-respondent CBS Inc.

Michael Kellogg, Michael McConnell, Mayer, Brown & Platt, Howard Monderer, Nat. Broadcasting Co., Washington, DC, Richard Cotton, Nat. Broadcasting Co., New York City, for petitioner and intervenor-respondent Nat. Broadcasting Co., Inc.

J. Roger Wollenberg, Joel Rosenbloom, Irwin M. Rappaport, Jonathan Jacob Nadler, Wilmer, Cutler & Pickering, Washington, DC, for petitioner and intervenor-respondent Capital Cities/ABC, Inc.

John P. Cole, Jr., Cole, Raywid & Braverman, Washington, DC, for amicus curiae Media Institute.

William N. Farabaugh, Edward A. Chapleau, Farabaugh & Chapleau, South Bend, IN, for petitioner Schurz Communications, Inc.

Diane S. Killory (argued), Linda Calhoun, Susan H. Crandall, Morrison & Foerster, Michael R. Gardner, Steven S. Rosenthal, Morrison & Foerster, Washington, DC, for petitioner and intervenor-respondent Coalition to Preserve the Financial Interest and Syndication Rule.

John D. Lane, Ramsey L. Woodworth, Robert M. Gurss, Wilkes, Artis, Hedrick & Lane, Washington, DC, for intervenor-respondent Program Producers and Distributors Committee.

William S. Reyner, Jr. (argued), Mace J. Rosenstein, Hogan & Hartson, Washington, DC, for petitioner Fox Broadcasting Co. Andrew J. Schwartzman, Gigi B. Sohn, Media Access Project, Washington, DC, for petitioner Ariz. Consumers Council.

POSNER, Circuit Judge (in chambers).

In Schurz Communications, Inc. v. FCC, 982 F.2d 1043 (7th Cir.1992), familiarity with which is assumed, a panel of which I was a member invalidated the new financial interest and syndication rules that the FCC had adopted in 1991, supplanting the original rules that had been promulgated in 1970. After the panel decision was rendered, counsel for outside producers and independent stations asked me to disqualify myself on the basis of 28 U.S.C. § 455(a), which requires disqualification if the judge's "impartiality might reasonably be questioned," and section 455(b), which so far as relevant here requires disqualification if the judge "has ... personal knowledge of disputed evidentiary facts concerning the proceeding" (§ 455(b)(1)) or "served as a lawyer in the matter in controversy ... or ... has been a material witness concerning it" (§ 455(b)(2)). The motion was addressed to me, not to the panel that decided the case or to the court as a whole. 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3550, at p. 629 (1984). "Section 455 clearly contemplates that decisions with respect to disqualification should be made by the judge sitting in the case, and not by another judge." United States v. Balistrieri, 779 F.2d 1191, 1202-03 (7th Cir.1985). The other parties were invited to respond to the motion and, the deadline for responses having passed, the motion became ripe for decision. Although the FCC did not file its own motion for disqualification, in response to the motion that was filed it instructed its general counsel, by the same 3-2 vote that promulgated the rules that the panel invalidated, to support the motion. The networks oppose the motion.

I have decided to publish my ruling on the motion because of the press publicity surrounding the motion for disqualification, and the public attention that the panel decision received. (For precedent for publishing such an opinion, see Laird v. Tatum, 409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (memorandum of Justice Rehnquist)--also a case in which a judge was asked to recuse himself because he had given expert testimony.) Originally released in typescript in order to dispel as promptly as possible any uncertainty that the motion had created concerning the future proceedings in this matter, this opinion contains corrections and other changes in response to the movants' petition for reconsideration filed on November 30 and hereby denied. At the movants' request, the petition for reconsideration was (before I acted on it) referred to the other judges on the panel, although the rules and operating provisions of the court make no provision for such a referral. The other judges have declined to consider the petition.

The exact relief sought by the motion is unclear and unspecified, the decision of the appeal having already been rendered (and by a unanimous panel). Do the movants want the case reargued before a different panel? Transferred to a different circuit? They do not say--and if that is what they want they have directed their motion to the wrong person, because I am not authorized, as a single member of the court, to give them such relief. Presumably they want (at the least) to disqualify me from participation in the still-pending proceeding concerning the scope of our final order, about which they express anxiety; the petition for reconsideration indicates that that is the only relief they seek.

The motion is based on an affidavit that I submitted as an expert witness on behalf of CBS in February 1977 (almost sixteen years ago) in an antitrust case that had been brought in a federal district court in California. See United States v. National Broadcasting Co., 449 F.Supp. 1127 (C.D.Cal.1978). The present case is an administrative proceeding before the Federal Communications Commission that began in 1990 when the Commission initiated a notice-and-comment rulemaking proceeding to decide whether to adopt new rules governing network programming. Although the cases arose before different tribunals, under different statutes, in different decades, both involve the general question whether and how much the television networks should be restricted from participating in the production and distribution of television programs.

The motion for disqualification is untimely. The movants acknowledge that they were aware of my affidavit in the antitrust case before the present case was argued orally on October 2. They were not aware until the morning of oral argument that I would be assigned to the panel to hear the case, because the practice of this court is not to announce the panel composition until the day of argument. But that practice, of which they do not claim to have been ignorant, was no impediment to their moving to disqualify me. A party who believes that one of the judges who might be assigned to hear a case would be required to disqualify himself should so inform the clerk of the court in advance. The clerk then informs the judge, and if the judge decides to disqualify himself he will be excluded from the pool from which (by a random procedure) judges are picked for the panel to hear the case.

I understand of course that the movants didn't want to interrupt the oral argument by asking me to disqualify myself. They would not have had to do that, even if they had failed to bring the matter to the court's attention earlier, because the case was not argued until the afternoon. And notwithstanding their having missed both opportunities to bring the matter to my attention before the argument, they could have filed a motion to disqualify me after the argument but before the decision. If they improbably feared that the case would be decided before they could draft and file the motion, they could have asked the court to delay its decision. In fact the court took more than a month to decide the case and during this period no motion to disqualify was filed. The movants followed none of the courses of action that was open to them. They waited until two weeks after the decision was handed down before filing the motion to disqualify.

That was too late. E.g., United States v. Barnes, 909 F.2d 1059, 1072 (7th Cir.1990); United States v. Patrick, 542 F.2d 381, 390 (7th Cir.1976); United States v. York, 888 F.2d 1050, 1053-55 (5th Cir.1989). Litigants cannot take the heads-I-win-tails-you-lose position of waiting to see whether they win and if they lose...