WRATHER-ALVAREZ BROADCAST. v. FEDERAL COMMUN. COM'N

• Decision Date: 26 September 1957
• Docket Number: No. 13617,13674.,13617
• Citation: 101 US App. DC 324,248 F.2d 646
• Parties: WRATHER-ALVAREZ BROADCASTING, Inc., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, American Broadcasting-Paramount Theatres, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

101 US App. DC 324, 248 F.2d 646 (1957)

WRATHER-ALVAREZ BROADCASTING, Inc., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee American Broadcasting-Paramount Theatres, Inc., Intervenor.

Nos. 13617, 13674.

United States Court of Appeals District of Columbia Circuit.

Argued June 4, 1957.

Decided September 26, 1957.

Mr. Herbert E. Forrest, Washington, D. C., with whom Messrs. Vincent B. Welch and Vincent A. Pepper, Washington, D. C., were on the brief, for appellant. Mr. Robert N. Green, Washington, D. C., also entered an appearance for appellant in Case No. 13617.

Mr. Robert M. Ague, Jr., Counsel, Federal Communications Commission, of the bar of the Supreme Court of Wisconsin, pro hac vice, by special leave of Court, with whom Messrs. Warren E. Baker, General Counsel, Federal Communications Commission, Richard A. Solomon, Asst. General Counsel, Federal Communications Commission, and Daniel R. Ohlbaum, Counsel, Federal Communications Commission, were on the brief, for appellee.

Mr. Vernon L. Wilkinson, Washington, D. C., with whom Mr. James A. McKenna, Jr., Washington, D. C., was on the brief, for intervenor.

Before BAZELON, WASHINGTON and BASTIAN, Circuit Judges.

BAZELON, Circuit Judge.

American Broadcasting-Paramount Theatres Inc. (hereafter called "ABC") operates one of the three television networks. The two VHF stations in San Diego, California, are primary affiliates of the other two networks. Desiring greater coverage for its programs in the San Diego area, ABC applied to the Federal Communications Commission for authority under § 325(b) of the Communications Act of 1934¹ to supply its programs to XETV, Tijuana, Mexico, a station which transmits a city-grade signal to San Diego. On November 23, 1955, the Commission granted the application, over the objections of the two San Diego stations and without hearing. Those stations filed timely protests under § 309(c) of the Act.² By order of January 23, 1956, the Commission found the protestants to be parties in interest, set down their protests for hearing, and postponed the effective date of the grant pending such hearing. On June 6, 1956, after hearing, the hearing examiner rendered an initial decision favoring ABC and, on October 22, 1956, the Commission issued its final order affirming the grant.

On April 5, 1956, after the hearing, but before the initial decision, ABC began delivering recorded programs to XE TV, without obtaining Commission approval. This circumstance, according to the protestants, amounted to violation of § 325 and disregard of the Commission's stay of its November 23, 1955, order. But the Commission, in its final order of October 22, 1956, held that the point was not within the issues of the proceeding before it.

On November 21, 1956, the appellant, one of the two protestants below, filed its notice of appeal in No. 13617, appealing from the order of October 22, 1956, and from an interlocutory order relating to a procedural point which we shall discuss later. Later the same day, ABC filed a petition for reconsideration asking the Commission to hold, on the merits, that ABC had not violated either § 325 or the Commission's stay by shipping recorded programs to XETV, rather than holding that the issue was not before it. By order of January 11, 1957, the Commission revised its October 22, 1956, order as requested by ABC. On January 17, 1957, the appellant filed its notice of appeal in No. 13674, appealing from the January 11, 1957, order. ABC has intervened in both appeals.

The first question before us is whether we have jurisdiction of the appeal in No. 13617.

Intervenor, as a party to the proceeding which resulted in the Commission's order granting the § 325 permit, was entitled to petition for reconsideration under § 405 of the Act.³ The time for filing the petition is specified in § 405 as "within thirty days from the date upon which public notice is given of the order * * * complained of." By § 402(b) of the Act,⁴ appellant, as a "person who is aggrieved or whose interests are adversely affected by * * * the order of the Commission granting" the § 325 permit, was entitled to appeal to this court. The time specified in § 402 (c) for taking this appeal is also "within thirty days from the date upon which public notice is given of the decision or order complained of." Since both the appeal to us and the petition to the Commission were filed on the thirtieth day after the public notice of the order complained of, the appeal being filed about one hour earlier than the petition, both were timely under a literal reading of the statute.

We have denied jurisdiction of an appeal where appellant's prior-filed petition for rehearing is still pending before the Commission. Southland Industries v. Federal Communications Comm., 1938, 69 App.D.C. 82, 99 F.2d 117. When the instant appeal was filed, however, there was no petition for rehearing pending before the Commission. The argument that we have no jurisdiction of this appeal is that §§ 402 and 405 must be read together to mean that an appeal is premature if filed before the expiration of the time within which a petition for rehearing may be filed. Such a reading of the statute, we think, would do violence to the language of § 402(c), which makes a case appealable within, not after, thirty days of the order complained of. Indeed, such a reading might altogether destroy the right to appeal. Since the Commission receives papers for filing until 5:00 p. m., while the court receives them only until 4:00 p. m., at the expiration of the time to petition for rehearing an appeal would already be barred as untimely. Under a fair reading of the statute, this appeal was not premature and our jurisdiction has attached.

We are not deterred from this conclusion by the consideration that jurisdiction must remain in the Commission to entertain petitions for rehearing for thirty days after the grant of the permit. Intervenor properly points out that the loser before the Commission has no vested right that the Commission's errors be preserved pending appeal. It also points out that other losing parties have a statutory right to seek relief by way of petition for rehearing rather than appeal. The necessity that the Commission have jurisdiction for thirty days after its order is even more cogently demonstrated by the provision of § 405 conditioning an aggrieved non-party's right to appeal upon his first seeking rehearing by the Commission. But our conclusion that we have jurisdiction of an appeal taken from a Commission order before any petition for rehearing has been filed does not preclude the Commission from having jurisdiction over subsequently filed timely petitions for rehearing. The concept of an indivisible jurisdiction which must be all in one tribunal or all in the other may fit other statutory schemes,⁵ but not that of the Communications Act. Under the scheme of that Act, parties to Commission proceedings have their choice whether to seek relief from Commission action from the Commission itself or from the court. And it may happen, as it has here, that one party will choose one tribunal and another party the other. That both tribunals have jurisdiction does not mean, of course, that they will act at cross purposes. The Commission's normal deference to the court as the reviewing tribunal and the principle of judicial self-restraint can be relied upon to avoid unseemly conflict.

It does not follow from our decision in Southland, supra,⁶ that we should dismiss a party's appeal after our jurisdiction has attached, because another party later petitions the Commission for rehearing. Nor does that consequence follow from our refusal to retain a case when the appellant himself subsequently petitions the Commission for rehearing.⁷ As we read the Communications Act, we have jurisdiction of an appeal filed within thirty days of the public notice of Commission action by a party aggrieved by that action. The only question, then, is what action we should take when the successful party, dissatisfied with the Commission's findings, subsequently petitions the Commission for rehearing. We think the proper course in such a case is not to dismiss the appeal, but rather, upon motion of any party, to hold the appeal in abeyance pending the Commission's further proceedings, keeping the record open for supplementation to reflect those proceedings.

We may treat the instant case as if the foregoing procedure had been followed. At pre-hearing conference on December 20, 1956, the Chief Judge, being assured by Commission counsel that he would seek the most expeditious consideration of the then pending petition for reconsideration, deferred further action on the appeal. Now that the Commission has disposed of the petition and the result of its reconsideration is before us, we may proceed to consider the propriety of the grant.

1. Appellant asserts that, even if the grant would otherwise have been proper, ABC, by delivering films and kinescopes to XETV, without Commission approval, after the Commission had stayed the original ex parte grant of November 23, 1955, disqualified itself. ABC replies that it made those deliveries in reliance on Baker v. United States, 5 Cir., 1937, 93 F.2d 332, certiorari denied 1938, 303 U.S. 642, 58 S.Ct. 646, 82 L. Ed. 1102, which construed § 325(b) as not applying to physical delivery of recorded programs. The Commission, though first...