Spanish International Broadcasting Company v. FCC

• Decision Date: 18 April 1967
• Docket Number: No. 20326.,20326.
• Parties: SPANISH INTERNATIONAL BROADCASTING COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, International Panorama TV, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

128 US App. DC 93, 385 F.2d 615 (1967)

SPANISH INTERNATIONAL BROADCASTING COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, International Panorama TV, Inc., Intervenor.

No. 20326.

United States Court of Appeals District of Columbia Circuit.

Argued December 7, 1966.

Decided April 18, 1967.

Petition for Rehearing Denied June 7, 1967.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mr. Donald E. Ward, Washington, D. C., for appellant. Mr. Howard Jay Braun, Washington, D. C., also entered an appearance for appellant.

Mr. William L. Fishman, Counsel, F. C. C., with whom Messrs. Henry Geller, Gen. Counsel, John H. Conlin, Associate Gen. Counsel, and Joseph A. Marino, Counsel, F. C. C., were on the brief, for appellee. Mrs. Lenore G. Ehrig, Counsel, F. C. C., also entered an appearance for appellee.

Mr. James A. Gammon, Washington, D. C., with whom Mrs. Lorie M. Molnar, Washington, D. C., was on the brief, for intervenor.

Before PRETTYMAN, Senior Circuit Judge, and FAHY and ROBINSON, Circuit Judges.

Petition for Rehearing En Banc Denied June 7, 1967.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal challenges the validity of orders made by the Federal Communications Commission in a proceeding for a construction permit on the ground that they improperly barred a party in interest from participation.

International Panorama TV, Inc., the intervenor here, applied for authority to construct a new UHF television station to serve Fontana, California, as its principal community. Its proposal contemplated operation on Channel 40 from a transmitter and tower located on Mount Wilson, which would place a principal city signal over Los Angeles, and allocation of a significant part of its programming to foreign language broadcasts, including Spanish.

Appellant, Spanish International Broadcasting Company, is the licensee of KMEX-TV, a UHF television station in Los Angeles transmitting on Channel 34 from Mount Wilson, which programs almost exclusively in Spanish. It launched the contest that blossomed before the Commission.

Intervenor's application was filed on April 22, 1963. Public notice was given thereafter and again on August 21, 1963, when the application was amended substantially. On May 18, 1964, appellant, asserting potential economic competition with intervenor as a basis for standing, petitioned for denial of the application on four separate grounds, one of which was that intervenor lacked the required character qualifications. Intervenor countered with argument that appellant lacked standing as a party in interest and that its opposition came too late.

The Commission, on October 2, 1964, released a memorandum opinion and order dismissing appellant's petition on a finding that it was untimely and that good cause for waiving the delay had not been shown. For these reasons, the Commission concluded that it was unnecessary to determine whether appellant had standing to oppose the application. Nonetheless, because of their public importance, it treated extensively the questions raised by appellant. It found that all of the points lacked merit save its claim respecting intervenor's character qualifications, and this issue it designated for hearing. Its opinion recited that "the Commission, after due deliberation, has determined that it will not make Spanish International a party to this proceeding."

Appellant made no further effort to participate until January 24, 1966, nearly two months after the hearing examiner had released an initial decision in intervenor's favor. It then invoked the Commission's processes in efforts, hereinafter chronicled, to gain admission to the proceeding and a redetermination of intervenor's application. These activities proved unsuccessful, and this appeal followed.

I

At the outset, we address ourselves to intervenor's caveat to our jurisdiction, a matter we would in any event be required to scrutinize, examining first the relevant procedural events. The examiner's initial decision was issued on November 29, 1965. The Commission's Broadcast Bureau, which had appeared as a party and actively opposed intervenor's application, obtained an extension to January 31, 1966, of the time within which exceptions thereto might be filed but did not itself register objection, nor did the Commission exert its authority to order further consideration on its own initiative. On January 24, appellant filed a petition for leave to intervene, exceptions to the decision, and a motion to reopen the record. The Commission's Review Board dismissed these pleadings on February 21, and the Commission, without stating reasons, denied a review of its order on March 4. On the same date, the Commission released a public notice announcing the effective date of the decision.

On April 1, appellant filed a petition for rehearing of both of the dispositions made by the Commission on March 4. This petition the Commission denied on June 15. Compliably with its regulation, the Commission summarily dismissed the prayer that it reconsider its order denying review and, on the premise that an initial decision can be reheard only upon exceptions by an existing party, denied relief of that character. The noting of this appeal on July 14, within the statutory 30-day period from June 15 but beyond it when measured from March 4, is said to be fatally untimely.

Under the provisions of the Federal Communications Act,¹ an appeal to this court may be taken by any "person who is aggrieved or whose interests are adversely affected by any order of the Commission granting or denying" certain applications² among which are those "for a construction permit or station license."³ Such an appeal can be taken only "by filing a notice of appeal with the court within thirty days from the date upon which public notice is given of the decision or order complained of."⁴ Upon the filing of such notice, this court acquires "jurisdiction of the proceedings and of the questions determined therein."⁵ To resolve the present question, we must consider the interplay of these provisions with those prescribing the Commission's review and rehearing procedures.

The Commission is statutorily authorized to delegate functions to subordinate boards⁶ whose unreviewed action matches that of the Commission.⁷ Any aggrieved person may, however, apply for review by the Commission, and the Commission may review on its own motion.⁸ An application for such a review is pre-requisite to judicial review of any action taken pursuant to Commission delegation, and the period for an appeal therefrom commences "from the date upon which public notice is given of orders disposing of all applications for review filed in any case."⁹

Additionally, by the legislation set forth below,¹⁰ Congress has also comprehensively provided for discretionary administrative rehearings at the instance of parties or non-parties. Any "order, decision, report, or action," made or taken either by the Commission or its delegate, may be reheard at the instance of any "person aggrieved or whose interests are adversely affected thereby". The filing of a petition for rehearing is a condition precedent to any judicial review sought by one who "was not a party to the proceedings resulting in such order, decision, report, or action". The petition to review must be filed within 30 days following public notice of the action complained of, and the time within which an appeal must be taken is measured "from the date upon which public notice is given of orders disposing of all petitions for rehearing filed with the Commission in such proceeding or case."

Appellant, having failed to achieve intervention at the hand of the Review Board, was required to seek review of the Board's action by the Commission. And whether or not appellant was a stranger to the intervention aspects of the proceeding¹¹ and as such compelled to request rehearing on the Commission's disposition on that review, the Act accorded it liberty to do so. Appellant pursued this privilege by presentation to the Commission, which rather than the Board had last spoken on intervention, of a timely petition for reconsideration. With the Commission's denial of this petition on June 15 and the filing of notice of appeal on July 14, the litigation came to us in time.

While a refusal of intervention sought of right is appealable immediately,¹² the appeal may be deferred until the Commission has acted terminally.¹³ Consequently, although appellant could have appealed from the order of October 2, 1964, declining to name it as a party to the proceeding, the Commission's denial of review of the Board's action on its intervention effort presented a further opportunity. The petition for rehearing of that denial tolled the appeal period until it was finally acted upon,¹⁴ and the appeal brought up for our consideration not only the action on intervention but also the October 2, 1964, order.¹⁵

We do not, in so holding, touch upon the Commission's conclusion that the examiner's initial decision was not a proper subject of the review and rehearing processes.¹⁶ With the point now abandoned,¹⁷ we are not called upon to treat the merits of the examiner's decision upon this appeal. But, despite the Commission's disinclination, expressed by regulation,¹⁸ to entertain requests for reconsideration of action for which no reasons were specified, we do have properly before us the orders bearing upon appellant's litigating status. "The power to reconsider is inherent in the power to decide",¹⁹ and we have noted that the Commission has reserved authority to nullify, on its motion, any previous action within the period rehearing may be sought or an appeal may be noted.²⁰ In Albertson v. FCC,²¹ we held that the time for taking an appeal was tolled by a motion seeking reconsideration of an order denying "rehearing" of a construction permit grant; that

"Needless to say, if it can set aside its action, the power to do so is not restrained by the

...