Valley Telecasting Co. v. FCC, 18092.

• Decision Date: 22 May 1964
• Docket Number: No. 18092.,18092.
• Parties: VALLEY TELECASTING CO., Inc., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Tele-Broadcasters of California, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

118 US App. DC 410, 336 F.2d 914 (1964)

VALLEY TELECASTING CO., Inc., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Tele-Broadcasters of California, Inc., Intervenor.

No. 18092.

United States Court of Appeals District of Columbia Circuit.

Argued February 10, 1964.

Decided May 22, 1964.

Mr. Reed Miller, with whom Mr. Paul A. Porter, Washington, D. C., was on the brief, for appellant.

Mr. Daniel R. Ohlbaum, Associate General Counsel, Federal Communications Commission, with whom Messrs. Max D. Paglin, General Counsel at the time the brief was filed, and Howard Jay Braun, Counsel, Federal Communications Commission, were on the brief, for appellee. Mr. Henry Geller, General Counsel, and Mrs. Ruth V. Reel and Mr. Joel H. Levy, Counsel, Federal Communications Commission, also entered appearances for appellee.

Messrs. Leonard H. Marks, Stanley B. Cohen and Roy F. Perkins, Jr., Washington, D. C., were on the brief, for intervenor.

Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge:

This appeal is from an order of the Federal Communications Commission dismissing, without an evidentiary hearing, appellant's petition for rehearing. The petition was filed after the Commission had granted intervenor a permit to construct new facilities which would allegedly be competitive with appellant. The issues raised concern the extent to which an existing licensee is entitled to an evidentiary hearing, when it alleges such competition but enters its objection for the first time in a post-grant pleading. This court has recently had occasion to deal with this problem in a closely-related context. Springfield Television Broadcasting Corp. v. F.C.C., 117 U.S.App.D.C. 214, 328 F.2d 186 (1964). What was there said is largely dispositive of this case, but we think it desirable to consider the issues presented by this appeal in the light of the particular facts involved. As in Springfield, we affirm the Commission's order.

I

The propriety of the Commission's action in this case is to be appraised in its statutory setting, and especially against the background of the developing Congressional purposes in this area. For many years the Federal Communications Act (48 Stat. 1064 (1934), as amended, 47 U.S.C. § 151 et seq.) made express provision for the filing of objections to new licensing authority only after the initial grant. Before 1960, Section 309 (c) embodied a specific post-grant procedure for protecting grants of authority made without a hearing; and, although a pre-grant effort to resist the new application would presumably be entertained by the Commission, the failure of the Act to provide, in terms, for this possibility inevitably resulted in the practice of bringing forward objections after the Commission had determined that the authority sought accorded with the public interest, convenience, and necessity.

The deficiencies of such a procedure in terms of the rational and efficient functioning of the administrative process are obvious. Congress sought to remedy this situation in 1960 by repealing Section 309(c) and enacting new Section 309(d), which, for the first time, created machinery for the voicing of objections before, rather than after, the grant of the authority in question. 74 Stat. 890 (1960). Under that provision any one having an interest may file a petition to deny the application prior to the grant of an application without hearing or prior to the commencement of hearing on such application. Depending upon the substantiality and materiality of the matters asserted in such petition, the Commission may grant the application with or without hearing.

Existing side by side with Section 309 (d) is a wholly separate procedure, which has obtained from the inception of the Act, for seeking rehearing of any Commission order. Section 405 provides that any person, whether or not a party to the proceeding, aggrieved or adversely affected by any Commission action, may petition for rehearing of such action. This section expressly provides that the Commission has discretion to grant such a rehearing "if sufficient reason therefor be made to appear"; and also states that rehearings thereunder "shall be governed by such general rules as the Commission may establish, except that no evidence other than newly discovered evidence, evidence which has become available only since the original taking of evidence, or evidence which the Commission * * * believes should have been taken in the original proceeding shall be taken on any rehearing." The Commission has in fact issued regulations relating to reconsideration under this section of the Act, and the pertinent ones for our purposes are set forth in the margin.¹ In the interest of orderly procedure, they establish certain standards which are to govern the granting of petitions filed under Section 405. These standards are designed to accommodate the public interest in the unusual case. They demand either that a good reason be given why a pre-grant opposition was not utilized or a pleading of facts which, if shown to be true, clearly point to an injury to the public sufficient to outweigh considerations of administrative orderliness. Thus, these standards have no direct relationship to pleading standards governing pre-grant petitions.

That the aim of these regulations is a legitimate one and well within the range of Congressional contemplation is clear from our opinion in Springfield.² There Judge Wright, speaking for the court, said:

"Congress, in amending Section 309 of the Act, obviously intended that oppositions to applications to grant construction permits should be filed before the grant, rather than after, as in the prior procedure. In reporting this amendment, the House Committee on Interstate and Foreign Commerce stated:

"`* * * The committee wishes to make clear that, in any situation where a petition to deny could have been filed by a party in interest prior to grant, the normal standards with respect to petitions for rehearing will apply, so that (1) no matter may be raised in a petition for rehearing which could have been raised with reasonable diligence by a petition to deny, and (2) any matter that was raised in a petition to deny and disposed of by the Commission need not be considered or discussed in detail if it is raised again.\'

Thus, while in amending Section 309 Congress did not provide for a mandatory pre-grant procedure, it fully anticipated that under the amendment this would be the normal procedure, and that when a party for the first time appears in the proceeding with a petition for reconsideration, he should show why he has withheld the facts, or was unable in season to obtain the facts, on which he relies. Certainly `we cannot allow the appellant to sit back and hope that a decision will be in its favor, and then, when it isn\'t, to parry with an offer of more evidence. No judging process in any branch of government could operate efficiently or accurately if such a procedure were allowed.\' Colorado Radio Corp. v. Federal Communications Com\'n, 73 App.D.C. 225, 227, 118 F.2d 24, 26 (1941)."

Congress clearly recognized that sound regulation has procedural as well as substantive elements, and that "the public interest, convenience, and necessity" comprehends both. Orderliness, expedition, and finality in the adjudicating process are appropriate weights in the scale, as reflecting a public policy which has authentic claims of its own. We examine, against this background, the facts giving rise to this appeal.

II

The petitioner, Valley Telecasting Company, owns and operates television station KIVA on Channel 11 in Yuma, Arizona.³ On July 5, 1962, an applicant known as Tele-Broadcasters sought authority to build a new television station on Channel 7 in El Centro, California. Two months later another applicant, KXO-TV, requested the same authority. This conflict was eliminated when, on November 5, 1962, the first application was amended to substitute Channel 9 for Channel 7. The applications elicited no objections from any quarter; and, after examining them, the Commission granted them without hearing on April 10, 1963.

On the following May 9, Valley came into the matter for the first time by filing petitions for reconsideration of the April 10 grants.⁴ It asked the Commission to hold an evidentiary hearing on the issues raised by its allegations, which generally centered around the ability of the Yuma-El Centro area to support any new television operations whatever. Although Valley made a number of allegations responsive to the requirement in the Commission's Rule 1.84(b) (renumbered to 1.106(b)) that a non-party filing a petition for reconsideration state "with particularity the matter in which * * * his interests are adversely affected," the petitions ignored the accompanying requirements that they "show good reason why it was not possible for petitione...