Colorado Radio Corp. v. Federal Communications Commission
118 F.2d 24
D.C. Cir.
1941
Check Treatment

*1 2á quite general doctrine true that there fails, the COLORADO RADIO CORPORATION v. equity that where a trust FEDERAL compelled return COMMUNICATIONS COM trustee will be money (MEYER, property MISSION of the or to the creator Intervener). Grimshaw, Hopkins trust. No. 7582. Restate- 41 L.Ed. Appeals United States Court of for the Trusts, ment of Sec. 411. And District of Columbia. cites cases in which has been the rule implied treated as Be one of intention. Decided Feb. may, as it we do not think that Con- gress appropriation intended an to be made manner, namely in this roundabout money fund” in this so-called “trust in the paid distillers face to the marketing express in the provision agreement uséd for other that it was purposes. need and do not ex- press any opinion Section 19 even whether provides. includes this fund for its dis- or position any particular manner. We appropriate hold does for the refund to and others in position. the same pending in While the has been court, Henry A. has been suc Wallace Secretary Agri ceeded in office by R. culture of the latter was substituted as a Wickard. The name Claude party, objection. capacity, in his official without expressed Some doubt was at oral however, argument, propriety on the substitution orig insofar as the suit was inally against filed Wallace as an individu opinion Henry al. Since in our A. Wal acting capacity lace was in his official receiving depositing this fund and Treasury, and the case is con by point, pass trolled we need not complaint thus raised. The against states no cause of action either

Wallace or Wickard as individuals. Aside from the matters we discussed, appellant’s position real in this inequitable controversy is that government gen unfair for the to use for expenses contracting eral a fund which the good carry distillers contributed in out a faith to particular program which has since inop been declared unconstitutional may true, This well erative. but in judicial

seeking enforcement whatever may exist, appellant equities is met important constitutional more rule that Money shall be “No drawn from the Consequence Treasury, Appro Const, priations. Law”. art. must, therefore, cl. 7. Relief be sought before the courts act.

Affirmed.

25 VINSON, Associate Justice. Appellant, Corporation, Colorado Radio station, operate regional licensed to KVOD, region- at Denver. It and another station, KFEL, al it had been with which time, sharing applied permission in- for to power operate crease and to unlimited Meyer application F. filed an for time. W.

permission operate local to construct and a city. hearing station in A on the same application, in which and intervenors, May, KFEL held in was 20, 1939, March the Commis- On permits to granted sion construction in- which KVOD and KFEL authorized operation. power creased and unlimited Meyer appli- The Commission denied the May, whereupon filed cation in he 10th, petition rehearing. a for On October permits construction licenses to cover the granted. to KFEL were On KVOD and 24th, October the Commission aside Meyer Reargument, case. decision in appellant participated, held 15th, November November on 9th. On application. granted the 6th, appellant filed a mo- On December denied, and tion for which was appeals. ap moved to dismiss First, pellant’s appeal grounds. two failed to show that has meaning of standing within the has here Fisher, Wayland, Ben S. Charles V. Second, Reasons (2).1 402(b) section Kendall, Washington, W. all D. of John allege any of law do C., appellant. action. in the Commission’s Taylor, Joseph Rauh, Telford L. Wil- a believe Dempsey, liam Koplo- and William C. J. meaning of within the aggrieved vitz, Washington, C., ap- of all D. by the 402(b) (2) as construed section pellee Federal Communications Commis- 2 Supreme in the Sanders case. Court sion. person who held that stands Court Sutton, C., Washington, Geo. O. D. appeal. financially is entitled to be hurt for Intervenor. appeal Appellant’s reason for reads: tenth VINSON, MILLER, grant- action in ED- Commission’s Before “That the Meyer and application of W. GERTON, ing the F. Associate Justices. “may 402(b) (2), have been of 1 47 U.S.C. 47 U.S.C.A. L.Ed. 869. financially likely 402(b) (2). opinion that one to be injured by a license would be the issue of intervenor also moved to dismiss only person appeal. inter- sufficient ap- bring to the attention Federal Communications Comm. v. est pellate action errors of law Sanders Bros. Radio 309 U.S. court granting the li- 60 S.Ct. 84 L.Ed. 869. page 477, page that, “It not follow because cense.” 309 U.S. does therefore, hold, L.Ed. 869. “We licensee of a station cannot resist requisite respondent grant another, had the of a license to ground competition standing appeal raise, resulting and to him, below, of law work economic respect standing Commis- of the order from an order of page page application.” granting sion.” S.Ct. page page 698, 84 L.Ed. 869. re- denying for a suffer. Refusal KVOD condition Commission to allow who had show the City Denver, full-fledged from the particularly more intervenor injurious operation proceedings start of the evi- economic effect KVOD, dence implications consequences proposed station will have on *3 effect, adding, arbitrary, capricious was a denial net one full time sta- and in was tion, hearing.” might However, impartial well error. we KVOD of a fair and be statement, pass feel upon that not A we this liberal should construction of this plus present in recognition competitive ap- re- the the since the the pellant from asserting and is foreclosed such will exist between lation that KVOD error, Meyer station, if places appellant the error it is. within the rule of the Sanders case. changed already The condition existed reargument at the Meyer time of the on the brings This us to the sec- Commission’s application. pointed out, been As has the appeal ond contention that the should be full Commission’s two authorization appellant dismissed because not al- has time instead of the stations two half-time leged any errors of law. believe that We ones on March came dismissed, upon the should application May. denied in Licenses was appellant ground the that the foreclosed is grants to cover the construction new the questions raising it endeavors the full time were issued stations October on here. 10th. On 24th October for The statements in the Reasons denying Meyer its decision the aside stating Appeal can be that considered as application reargument there was on and appellant errors of law are that the Thus, appellant November 9th. could reopen not allowed to to show record moved to additional con- submit evidence condition, changed and the Com- that cerning any condition at time mission did consider effect of not between 24th and November October 9th. changed condition. do, suggest This did nor did it its not changed condition is that two for- desire to offer further evidence De- until stations mer half-time became full time 6th, days cember twenty after the Commis- brief, sets stations. its approved Meyer application. sion possible new full out effects Appellant that took its chance Com grants Meyer’s applica- on station time mission, record, existing on the would re tion, ap- Commission was states that previous although vert its decision prised motion for of this fact its re- had been set aside.5 Now that de partici- hearing, value was asks what its it, gone against appellant cision has proceedings pation in if cannot show persuade wants a chance to the Commis and economic condi- how to serve supplemental sion with a record. can changed between time of tions have not to sit allow the back and grant on and Commission’s hope favor, that a decision will in its Meyer application, concludes and isn’t, then, parry and when it an with it should have been determined wheth- that proc offer of No judging more evidence. adversely public would have been er the government ess branch of could by granting still another station. affected operate accurately efficiently or if such procedure allowed. Granting Meyer application, another station had been allowed for are Reasons bottomed impair nothing happened example, between might, for the revenue to November 6th, all,4 might securing make of 9th December date which one of and difficult, rehearing. asked for a adequate talent and in end There Sanders munications State v. Federal Communications Commission eral Communications App.D.C. 228, 5 Meyer, Economic Broadcasting on the issue Bros. F.2d in bis Commission, 693, 84 Radio Co. Woko, a licensee can be L.Ed. Commission, Federal v. Inc., 869; rehearing, App.D.C. Com Fed Tri- four isfactory. grams App.D.C. 80, stressed Courier local station need not show that regional, Federal Communications application. reargument court held regional, of the clear or Denver regional 104 F.2d 213. and that an was held on Post had one clear channel, stations are local Publishing applicant Commission, stations In high that ease channel, not sat- Meyer Co. v. power when pro- possible and sider on must be an re- its own motion the effect end determinations case, upon crystallized every per of its action determinations. The issue was each might thereby. could made be possibly the record have been son who be affected Appellant person fore the action. Such a not Commission’s be entitled to sit properly persons administra back and all exhausted its wait until interested remedy. heard, tive who do so then act have complain properly has not been countered that .be permit treated. To such a to stand entirely is not foreclosed outcome; speculate aside delay because a status it adversely affected, into come of law it allowed to correct all errors relief; permit mat and then the whole alleged can that the of law contend behalf, reopened ter to oppor was denied *4 impossible create an situation.” evidence, tunity to adduce additional but say To that rule should be altered also failed to con the that Commission appellant incidentally when the and indefi- sider effect of the condition. the nitely public states may that the in- be error, however, sufficiently Such an is not jured reality. may overlooks alleged. The fact that new station was a thought competitor have a that because of put operating not be in did have to the financial his would go interests to the and, could, record as of presenting trouble evidence and con- did, by opinion, is its shown take official might bearing tentions which have a appellant The notice of it. makes public as well But interest as his own. specific showing the re definite and that public likely is not to if the suffer supported by sult is not the evidence. sufficiently pre- evidence is strong not to Thus, appellant’s must contention neces appellant forgetting vent from it at sarily to position that fur simmer down And, proper time in own his behalf. facts, showing ther in more detail and all, pro- is the chief experience in of light of the effect of public tector station, in new could existence part of granted. been the record. The motion to dismiss be to allow Under these circumstances dismissed. appellant allege of to as law an timely steps took no situation that it to EDGERTON, (con- Associate Justice presenting its evidence in correct full curring) . change position its from of that an court, opinion I concur in of ex- party under to interested the statute that cept implication there that is one vigilante. of As in a mere we said dismissing appeal. reason for case, burden, therefore, Red “The. River is, be, case upon an determines that one properly should inter Sanders injured likely financially to be affirmatively protect the is- person to act to ested standing of a to sue license has to It more reasonable assume himself. is * * * any legislative ques- and “to raise in case a intent that relevant an respect law of pro to tion of the order of the interested should be alert Commission,” e., bring at- i. “to to tect own interests to assume that his than appellate of of to tention errors Congress intended the Commission con duty Broadcasting first v. Federal Its was to seek the administra Red River Co. App.D.C. remedy Commission, to it tive before the Communications available If, such 286. Commission. notice as stage App.D.C. pages Id., 98 F. at an at was entitled to have earlier neglected pages 286, proceeding, In the Red River of the to avail it 2d at appellant participated opportunity, had not self of such an thus case the seeking any proceedings, shown but it was have foreclosed itself fur pages App.D.C. had before that it must have actual notice ther relief.” expired requesting pages 287, a rehear F.2d It is that time believed nothing dealing ing. the instant case the In the section the Act way. rehearings (47 an intervenor all of the with U.S.C. § U.S. language following rules, 405) from the Red River C.A. or in the Commission’s pertinent. therefore, (Part 1, 1.271) is, do not evidences relaxation case “We was, any event, general party principle that a that of the must decide diligent presentation wait until for rehear be of his entitled to the time ing then for the time in. first come case. sider ability public. to law in the serve his action But have no we reason to granting the I assume that the license.”1 think present appellant’s denied appeal raises no relevant rehearing giving proper consider law. without ation to expressly this matter. The statute permits The Sanders case granting leaves the rehearings to the1 here, here, to come to succeed but not discretion of the Commission.3 can himself. injury basis 'of financial to required put to aside its other duties- succeed, appeals In order to one who and hold whenever a new fact pre against granting must of a license arises which conceivably lead to a why sent should not reasons license new conclusion. granted. Supreme have been Court injury In held in Sanders case the Court fur the Sanders said ther: licensee, broadcasting open another is not such “The field is anyone, provided there a reason. The him en be an available fact of frequency matters, over which he titles him to relevant broadcast can matter; others, without interference to not itself entitles he shows heard, competency, his adequacy among equip him but it ment, and financial things concerning good is entitled make assigned of use channel.”4 appears He as a kind This is heard. say as much King’s proctor, as *5 to vindicate the licenses should be interference, denied because of Sanders case incom decides that petence, inadequate equipment, competition pro existing between an or financial inability. Appellant

posed charges none of station is to be considered these things against Meyer. “upon It follows Commission when it bears that the law,” ability applicant raises no “relevant adequately to serve e., question which, e., i. public”; it were answered his i. when it that the shows favor, appellant’s merely require applicant, existing and not sta revoca Meyer’s tion tion, or reconsideration of “go will either under” or com license. “be Appellant alleges pelled inadequate to render service.”2 subjects Appellant alleges nothing findings_ various sort here. record, remotely supported are not suggest even these does not irrelevant, Meyer, whatever, allegations they any reason are since lacks do adequately public. questions validity serve touch the which the they Meyer’s depends. license Even if suggest,, If generous it did so the most questions they did touch those could not interpretation that could even then be dismiss, ap motion withstand a since placed upon appellant’s allegations, apart pellant supposed er has not forth the allegation from the immaterial 5 specifically. rors appellant, would be this: succeed, appeal cannot application, As the but be him, merely granted “It would serve the license was be dismissed.6 fore the delay purpose of to allow the case to re granted additional full-time city, until be reached same main on our docket it shall licenses it did not * * * and then affirmed.”7 hold a and recon thereafter 475, 693, 697, 1 470, 84 L.Ed. U.S. 60 Federal Communications Station, Brothers Radio 309 869. v. Sanders 5 470, 693, 477, 698, v. Federal Communications 60 S.Ct. 84 L.Ed. Stuart U.S. App.D.C. 265, Commission, 70 869. 2 788. Federal Communications 6 Culver, 26, Station, Steele v. U.S. 29 S. Sanders Brothers Radio v. 74; Pennsylvania 9, 470, 476, Com- 60 S.Ct. 84 L. Ct. 53 L.Ed. pany Donat, v. Ed. 869. Sancho, Treasurer, L.Ed. tit. 47 U.S.C.A. v. 3 U.S.C. Acevedo, Cir., 93 F.2d 331. Wilkinson, Cir., Robertson Federal Communications Commission F. Radio 2d Brothers v. Sanders