CAMDEN RADIO, Inc. v. FEDERAL COMMUNICATIONS COMMISSION et al. CAMDEN RADIO, Inc. v. UNITED STATES et al.
Nos. 11833, 11871
United States Court of Appeals, District of Columbia Circuit
Decided July 15, 1954
Petition for Rehearing Denied March 17, 1955
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Mr. Daniel R. Ohlbaum, Counsel, Federal Communications Commission, of the bar of the Court of Appeals of New York, pro hac vice by special leave of Court, with whom Messrs. Charles H. Weston, Special Asst. to the Atty. Gen., Department of Justice, and J. Roger Wollenberg, Asst. Gen. Counsel, Federal Communications Commission, at time of argument, were on the brief, for appellee in No. 11833 and respondents in No. 11871. Mr. Richard A. Solomon, Counsel, Federal Communications Commission, entered an appearance for appellee in No. 11833 аnd respondents in No. 11871.
Mr. Russell Rowell, Washington, D. C., for intervenor in No. 11833 and No. 11871.
Before WILBUR K. MILLER, PRETTYMAN and DANAHER, Circuit Judges.
WILBUR K. MILLER, Circuit Judge.
In these cases we are asked by Camden Radio, Inc., the licensee of a radio station at Camden, Arkansas, to set aside two orders of the Federal Communications Commission by which it considers itself aggrieved. One of these, which was entered under the authority of
The events which preceded and gave rise to the two orders in question will be briefly noted. Howard had applied August 11, 1952, for a station license covering his construction permit, but the Commission had withheld action on the application because it had information tending to show he had misrepresented and concealed facts in obtaining the permit. In those circumstances, Howard applied October 13, 1952, for permission to assign the construction permit to James. With that application pending, the Commission notified Howard November 5, 1952, of his alleged wrongdoing, said it could not at that time find the grant of a station license to be in the public interest, and informed him that, as provided in
Howard responded November 19, 1952, but did not seriously controvert the charges of concealment and misrepresentation. We quote from his letter:
“* * * I do assume full responsibility of the entire matter and consequently want to get out of the matter altogether. * * * In order that I can get relieved of it altogether, have nothing more to do with it, I was willing to assign, and have so advised the Commission, any and all interest.”
Considering the reply unsatisfactory, the Commission on December 31, 1952, designated the license application for hearing, pursuant to
On January 28, 1953, Howard again wrote the Commission, saying inter alia:
“* * * I do not believe a hearing could produce any additional information from what you already have. From the application to transfer this license [sic] permit to D. R. James, Jr., the exhibits and supplementing information attached thereto and my letter to you of November 19, 1952, the Commission hаs a record of all the facts in connection with this application. * * *”
He added, “I realize my mistakes * * *” and said he wished “to be relieved of all interest, connection and association or responsibility.”3 Accordingly he requested reconsideration of the order designating his license application for hearing, and asked approval of his pending application for assignment of the construction permit to James.
Over the vigorous protest of the Chief of its Broadcast Bureau, the Commission on March 11, 1953, cancelled the hearing theretofore designated with respect to Howard‘s application for a station license, and removed it from the hearing docket “to bе further considered in connection with our examination of
To this order Camden Radio filed a protest on April 24 purportedly under
As we have said, the Commission denied the protest May 11, 1953, holding that Camden Radio had not shown itself to be a party in interest within the meaning оf
June 8, 1953, Camden Radio filed in this court, purportedly pursuant to
Apparently fearful that the notice of appeal just mentioned did not bring before us the denial order of May 11, Camden Radio filed July 7, 1953, a petition which expressly sought review of both orders. This case is No. 11,871. As Camden Radio in the two proceedings attacks the same orders and asks the same relief with respect to them, the cases have been consolidated.
We clearly have jurisdiction to review the order of May 11 since, regardless of whether it was appealed under
We think it clear that one who is aggrieved or whose rights are adversely affected by an order which permits without a hearing the assignment or transfer of a construction permit or station license (that is, one who is a “party in interest“) may by protesting under
The only question is, then, whether the Commission correctly denied the protest on the ground that Camden Radio was not a party in interest. The ruling was based upon the Commission‘s conclusion that
“* * * there is no showing that, as an existing station, protestant would suffer any economic or other injury from the operation of station KPLN by assignee as opposed to its operation by assignоr.”
In so concluding, the Commission overlooked the fact that the statute requires it to dispose of an application for assignment or transfer as though the pro-
It follows that the right of protest against a proposed assignment of a construction permit cannot be limited in the fashion the Commission attempted to limit it. The protest filed by Camden Radio contains the following parаgraph:
“Protestant is licensee of station KAMD, Camden, Arkansas, and sells time on its station to Camden merchants, network program sponsors, and to national and regional advertisers. Station KPLN is also located in Camden, Arkansas, and will become a competitor of protestant for local, regional and national advertising. Camden, Arkansas, is a tоwn of some 11,000 population (1950 U. S. Census) and protestant will suffer economic injury from the competition of station KPLN.”
This was sufficient to identify it as a party in interest entitled to be heard in protest. Federal Communications Comm. v. Sanders Brothers Radio Station, 1940, 309 U.S. 470, 642, 60 S.Ct. 693, 84 L.Ed. 869, 1037. As the Commission erred in denying the protest without granting a hearing, the consolidated causes will be remanded sо a hearing thereon may be conducted.
Until the Commission decides after the hearing whether to grant or deny the reinstated protest, the order of April 1st will be automatically stayed by the terms of
will, of course, reconsider that order in the light of the record as supplemented by the proceedings at the hearing. It may decide to grant the protеst and so to revoke its consent to the assignment, in which event it probably would institute a proceeding to revoke the undoubtedly tainted construction permit;5 or it may decide to deny the protest and allow the construction permit to be assigned. We indicate, of course, no opinion as to which course should be taken. But, since it is possible Cаmden Radio might get administrative relief from the order of April 1st, we think it would be improper for us to review that order on the present incomplete record, which probably will soon be substantially supplemented.
Remanded for proceedings in accordance herewith.
On Petition for Rehearing.
WILBUR K. MILLER, Circuit Judge.
In our opinion, handed down July 15, 1954, we held that, when the Commission has approved without a hearing the assignment of a construction permit, the licensеe of an existing station shows himself to be a party in interest, entitled under
In a petition for rehearing the Commission again urges that the licensee of the existing station may not protest against its apрroval of the assignment unless he alleges he will be injured economically by the assignee‘s operation of the new station, “as opposed to its operation by the assignor.”
The Commission‘s quarrel is in reality not with our opinion but with the rele-
“(a) * * * that under the Communications Act economic injury to a competitor is not a ground for refusing a broadcasting license and that, since this is so, the respondent was not a person aggrieved, or whose interests were adversely affected, by the Commission‘s action, within the meaning of § 402(b) of the Act, 47 U.S.C.A. § 402(b), which authorizes appeals from the Commission‘s orders.” 309 U.S. at pages 472, 473, 60 S.Ct. at page 696.
“(b) * * * that as economic injury to the respondent was not a proper issue before the Commission it is impossible that § 402(b) was intended to give the respondent standing to appeal, since absence of right implies absence of remedy.” 309 U.S. at page 477, 60 S.Ct. at pagе 698.
These contentions were rejected by the Supreme Court. It said in 309 U.S. at pages 476, 477, 60 S.Ct. at page 698:
“We conclude that economic injury to an existing station is not a separate and independent element to be taken into consideration by the Commission in determining whether it shall grant or withhold a license.
“Second. It does not follow that becausе the licensee of a station cannot resist the grant of a license to another, on the ground that the resulting competition may work economic injury to him, he has no standing to appeal from an order of the Commission granting the application.
“Section 402(b) of the Act (47 U.S.C.A. § 402(b)) provides for an appeal to the Court of Appeals of thе District of Columbia (1) by an applicant for a license or permit, or (2) ‘by any other person aggrieved or whose interests are adversely affected by any decision of the Commission granting or refusing any such application.’
“The petitioner insists that as economic injury to the respondent was not a proper issue before the Commission it is impоssible that § 402(b) was intended to give the respondent standing to appeal, since absence of right implies absence of remedy. This view would deprive subsection (2) of any substantial effect.
“Congress had some purpose in enacting section 402(b) (2). It may have been of opinion that one likely to be financially injured by the issue of a license would be the оnly person having a sufficient interest to bring to the attention of the appellate court errors of law in the action of the Commission in granting the license. It is within the power of Congress to confer such standing to prosecute an appeal.
“We hold, therefore, that the respondent had the requisite standing to appeal and to raise, in the court below, any relevant question of law in respect of the order of the Commission.”
Here, just as in the Sanders case, the right to protest does not depend upon whether the protestant will be entitled to relief from the competition which will cause him to suffer economic injury. The mere fact that he will suffer such injury from the operation of the new station entitles him to demand a hearing concerning the assignment of the construction permit which has been approved without a hearing.
Petition for rehearing denied.