WRATHER-ALVAREZ BROADCAST. v. FEDERAL COMMUN. COM'N, No. 13617

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBAZELON, WASHINGTON and BASTIAN, Circuit
Citation101 US App. DC 324,248 F.2d 646
PartiesWRATHER-ALVAREZ BROADCASTING, Inc., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, American Broadcasting-Paramount Theatres, Inc., Intervenor.
Decision Date26 September 1957
Docket NumberNo. 13617,13674.

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.


248 F.2d 647

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

248 F.2d 648
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...

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14 practice notes
  • Home Box Office, Inc. v. F.C.C., No. 75-1280
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 20 May 1977
    ...rules in order to have the benefit of the further proceedings. See Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U.S.App.D.C. 324, 327, 248 F.2d 646, 649 (1957). Finally, the "concise statement of reasons" given by the Commission here is tantamount to the statement: "We have denied your pe......
  • Committee for Open Media v. F. C. C., No. 73-2068
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 22 January 1976
    ...for in any event we are not disposed to expand their scope. See Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U.S.App.D.C. 324, 326-327, 248 F.2d 646, 648-649 (1957). Here the appeal was taken when after four months, COM concluded that the Commission's delay on the petition was too great, ......
  • Microwave Communications, Inc. v. F. C. C., No. 73-2051
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 27 June 1974
    ...denied, 305 U.S. 613, 59 S.Ct. 72, 83 L.Ed. 391 (1938). See also Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U.S.App.D.C. 324, 326-27, 248 F.2d 646, 648-49 21 See notes 5-7, supra, and accompanying text. 22 See note 19, supra. 23 Compare, e. g., United States v. Robinson, 361 U.S. 220, 2......
  • American Farm Lines v. Black Ball Freight Service Interstate Commerce Commission v. Black Ball Freight Service, Nos. 369
    • United States
    • United States Supreme Court
    • 20 April 1970
    ...does not mean, of course, that they will act at cross purposes.' Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U.S.App.D.C. 324, 327, 248 F.2d 646, 649. The concept 'of an indivisible jurisdiction which must be all in one tribunal or all in the other may fit' some statutory schemes, ibid.,......
  • Request a trial to view additional results
14 cases
  • Home Box Office, Inc. v. F.C.C., No. 75-1280
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 20 May 1977
    ...rules in order to have the benefit of the further proceedings. See Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U.S.App.D.C. 324, 327, 248 F.2d 646, 649 (1957). Finally, the "concise statement of reasons" given by the Commission here is tantamount to the statement: "We have denied your pe......
  • Committee for Open Media v. F. C. C., No. 73-2068
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 22 January 1976
    ...for in any event we are not disposed to expand their scope. See Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U.S.App.D.C. 324, 326-327, 248 F.2d 646, 648-649 (1957). Here the appeal was taken when after four months, COM concluded that the Commission's delay on the petition was too great, ......
  • Microwave Communications, Inc. v. F. C. C., No. 73-2051
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 27 June 1974
    ...denied, 305 U.S. 613, 59 S.Ct. 72, 83 L.Ed. 391 (1938). See also Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U.S.App.D.C. 324, 326-27, 248 F.2d 646, 648-49 21 See notes 5-7, supra, and accompanying text. 22 See note 19, supra. 23 Compare, e. g., United States v. Robinson, 361 U.S. 220, 2......
  • American Farm Lines v. Black Ball Freight Service Interstate Commerce Commission v. Black Ball Freight Service, Nos. 369
    • United States
    • United States Supreme Court
    • 20 April 1970
    ...does not mean, of course, that they will act at cross purposes.' Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U.S.App.D.C. 324, 327, 248 F.2d 646, 649. The concept 'of an indivisible jurisdiction which must be all in one tribunal or all in the other may fit' some statutory schemes, ibid.,......
  • Request a trial to view additional results

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