Hubbard Broadcasting, Inc. v. Federal Communications Commission and United States of America, Santa Fe Cablevision Company, Intervenor
385 F.2d 979
D.C. Cir.
1967
Check Treatment

HUBBARD BROADCASTING, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Santa Fe Cablevision Company, Intervenor.

No. 20924.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 11, 1967. Decided Oct. 27, 1967.

385 F.2d 979

ceedings requires that the court be empowered to act on the basis of such a hearing where it thinks such action is warranted.4 The judge, as the representative of the child as well as his government, may feel than an accusatory hearing will itself run counter to the best interests of the child. Where, as here, the Juvenile Court judge as well as the government officials most intimately involved in the case are convinced of the juvenile‘s innocence, the ex parte dismissal of the petition, following an informal hearing, is, and should be, within his sound discretion.

The recent Supreme Court opinions in

, and
, warn that however beneficent the original intent, the promise of the juvenile courts has not, for the most part, been realized. These cases establish that the juvenile is entitled to many of the constitutional protections which shield his adult counterpart. The child cannot be denied these rights in the name of flexibility and informality; nor can the broad discretion imparted by the phrase “in the best interests of the child” cloak arbitrary treatment.

But nothing in these decisions indicates that certain stages of the juvenile process cannot or should not consist of non-accusatory proceedings which result in a disposition favorable to the child. The Court explicitly said in

that nothing in that decision would “compel the States to abandon or displace any of the substantive benefits of the juvenile process.”
. Certainly, then, the child can be accorded additional rights and privileges beyond those to which the adult defendant is entitled, and judicial conduct which might unfairly disadvantage the District in the prosecution of an adult is not necessarily unfair where the accused is a juvenile and the objective is not to punish but to protect the child.
;
. Though the judge could not have made a final determination of “involvement” on the basis of the informal hearing held here, it was not an abuse of discretion to conduct such a hearing to determine simply whether he should allow the case against the juvenile to proceed at all.

Reversed.

Mr. Robert L. Heald, Washington, D. C., with whom Messrs. Frank U. Fletcher and Edward W. Hummers, Jr., Washington, D. C., were on the brief, for petitioner.

Mr. Joseph A. Marino, Counsel, F.C.C., with whom Asst. Atty. Gen., Donald F. Turner, Mr. Henry Geller, Gen. Counsel, Mrs. Lenore G. Ehrig, Counsel, F.C.C., and Mr. Howard E. Shapiro, Atty., Dept. of Justice, were on the brief, for respondents. Mr. John H. Conlin, Associate Gen. Counsel, F.C.C., also entered an appearance for respondent Federal Communications Commission.

4

Mr. Vernon L. Wilkinson, Washington, D. C., with whom Messrs. James A. McKenna, Jr. and Robert W. Coll, Washington, D. C., were on the brief, for intervenor.

Before WILBUR K. MILLER, Senior Circuit Judge, and WRIGHT and MCGOWAN, Circuit Judges.

PER CURIAM:

This is a petition for review of a memorandum opinion and order of the Federal Communications Commission released February 17, 1967. In its opinion and order, the Commission waived the evidentiary hearing provisions of Section 74.1107 of its Rules and Regulations pertaining to CATV, 47 C.F.R. § 74.1107 (Supp.1967), and permitted Santa Fe Cablevision to carry its proposed distant signals within the Grade A contours of Station KOB-TV, operated by petitioner, Hubbard Broadcasting, Inc., in Albuquerque, New Mexico. Hubbard maintains that, in granting the waiver, the Commission violated its own rules requiring an evidentiary hearing except where the uncontested factual allegations in the application for waiver and the Commission‘s findings satisfy the public interest consideration for CATV approval.

This case is governed by our recent decision in

. Both cases were considered by the Commission at approximately the same time and raise similar questions as to factual specificity in petitions for waiver and the articulation by the Commission of its reasons for granting the petitions. The differences in the cases are a matter of degree, and we do not find the degree of difference sufficient to justify a different result. Accordingly, we affirm the Commission‘s order. Once again, however, we remind the Commission that, although we defer to its expertise in its assigned area, “in the emerging field of CATV, with respect to petitions for waiver of evidentiary hearings, the Commission should require greater factual specificity in petitions for waiver and in the proof, and its decisions should more clearly articulate the public interest considerations on which it determines to waive” its rules and regulations.
.

Affirmed.

WILBUR K. MILLER, Senior Circuit Judge (dissenting):

I think the Commission‘s order should be reversed on the authority of

When that opinion was handed down by this court, the Commission should have asked that this case be returned to it for further consideration in the light of
.

WILBUR K. MILLER

Senior Circuit Judge

Notes

4
The District of Columbia Code expressly authorizes the judge to conduct juvenile hearings in an informal manner. 11 D.C. CODE § 915 (1961).