Worz, Inc. v. FCC

• Decision Date: 05 July 1963
• Docket Number: No. 13996.,13996.
• Citation: 323 F.2d 618
• Parties: WORZ, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Mid-Florida Television Corporation, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

323 F.2d 618 (1963)

WORZ, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee Mid-Florida Television Corporation, Intervenor.

No. 13996.

United States Court of Appeals District of Columbia Circuit.

Argued June 10, 1963.

Decided July 5, 1963.

Petition for Rehearing Denied September 20, 1963.

Mr. Eliot C. Lovett, Washington, D. C., with whom Mr. Lee G. Lovett, Washington, D. C., was on the brief, for appellant.

Mr. Daniel R. Ohlbaum, Associate Gen. Counsel, F. C. C., with whom Mr. Max D. Paglin, Gen. Counsel, and Mrs. Louise H. Renne, Counsel, F. C. C., were on the brief, for appellee. Messrs. Richard M. Zwolinski, Ernest O. Eisenberg and Mrs. Ruth V. Reel, Counsel, F. C. C., also entered appearances for appellee.

Mr. Marcus Cohn, Washington, D. C., for intervenor. Messrs. Leonard H. Marks and Paul Dobin, Washington, D. C., also entered appearances for intervenor.

Before FAHY, WASHINGTON and DANAHER, Circuit Judges.

Petition for Rehearing En Banc Denied September 20, 1963.

PER CURIAM.

On May 15, 1958, in WORZ, Inc. v. Federal Communications Comm., 103 U. S.App.D.C. 195, 257 F.2d 199 (1958), we affirmed the order of the Commission granting television Channel 9 in Orlando, Florida, to Mid-Florida Television Corporation. The Supreme Court, in WORZ, Inc. v. Federal Communications Comm., 358 U.S. 55, 79 S.Ct. 114, 3 L.Ed. 2d 48, on October 27, 1958, upon the basis of representations made by the Solicitor General concerning possible ex parte communications made on behalf of Mid-Florida to Commissioner Mack, which if made had not been known when the case was before this court, vacated our judgment and remanded the cause to this court for such action as we should deem appropriate. On May 21, 1959, we vacated the order of the Commission which we had previously affirmed and remanded the case to the Commission,

"with instructions to hold, with the aid of a specially appointed hearing examiner, an evidential hearing to determine the nature and source of all ex parte pleas and other approaches that were made to Commissioners while the former proceeding was pending, and any other factors that might be thought to require either disqualification of some Commissioners from participating in the reopened proceeding or disqualification of some parties from receiving any award that may ultimately result. All parties to the former proceeding and to the present review may on request participate fully in the evidential hearing. The Commission is instructed to report its progress to this court within sixty days, together with any recommendations it is then able to make. In the discretion of the Commission existing services may be maintained.3

"3. Wrather-Alvarez Broadcasting, Inc. v. F. C. C., 101 U.S.App.D.C. 324, 329, 248 F.2d 646, 651."

WORZ, Inc. v. Federal Communications Comm., 106 U.S.App.D.C. 14, 15, 268 F.2d 889, 890 (1959). We retained jurisdiction pending our further order.

As a consequence of proceedings on the remand to it, the Commission, while not disturbing Mid-Florida's service allowed under an earlier authorization, and after filing interim reports with this court, filed its present Report and Recommendation under date of January 8, 1963.

The Commission had reopened the record and held a further hearing before a Chief Hearing Examiner on the issues pertinent to the remand. The Examiner made an Initial Decision, which the Commission considered before making its Report and Recommendation now before us. Chairman Minow filed a dissenting statement with the Report and Recommendation. At the request of parties we set the matter down for oral argument and for consideration on briefs directed to the Report and Recommendation.

All participating members of the Commission agree that neither Mid-Florida nor WORZ is disqualified but that the case should be considered anew on oral argument and a decision made on the merits by the present Commissioners, none of whom were aware of the ex parte contacts with Mack or permitted similar representations. The majority of the Commission recommend, however, that such new consideration be on the basis of the existing record, including the Initial Decision of the Hearing Examiner of August 10, 1955, and the exceptions thereto, with no further hearing contemplated and with no demerit to Mid-Florida by reason of the events which came to light and resulted in the remand.

The Chairman is of the view, which the majority of the Commission do not accept, that while Mid-Florida is not disqualified some demerit should be considered against Mid-Florida due to his view, along with that of the Examiner, that officers of Mid-Florida knew of the ex parte conversations of its counsel with Commissioner Mack. In light of some consequent impairment of Mid-Florida's qualification and, also, the "serious question concerning the character of WORZ's principals," discussed in the Commission's Decision of June 1957, Chairman Minow would recommend to the Court that the Commission be authorized to decide — after a new oral argument — whether to grant one of the existing applications (of Mid-Florida and WORZ) or to reopen the record for new applications.

We accept the view that neither Mid-Florida nor WORZ is disqualified; but in line with the Chairman's position we hold that the Commission is authorized to decide, after new oral argument, whether to grant one of the existing applications or to reopen the record for new applications. Furthermore, we hold in arriving at its decision on all matters, including the question of reopening, the Commission shall consider the serious question concerning the character of WORZ's principals. It shall also consider the weight to be given to the Roth incident at a time when Roth was secretary of Mid-Florida and a stock subscriber in the corporation, as well as the fact that, although the Commission has concluded Mid-Florida's principals were not aware of their attorney's ex parte communications with former Commissioner Mack, even so such communications were in fact made by Mid-Florida's attorney.

Nothing we have said is intended to preclude the Commission from deciding that the record is so stale,^* the filing of new applications should be permitted. Mid-Florida has been operating on Channel 9 at Orlando under program test authority issued January 31, 1958, pursuant to the...