*1 jurisdiction.1 I justice in this criminal grant petition for therefore vote
rehearing en banc.
WASHINGTON, who panel the decision dissented from n onthe evidence that sufficient charge guilt assault with lacking,
(cid:127)dangerous weapon remains view, that a and considers rehearing many clarify en banc would
n problems to the trial charged.
(cid:127)eases such assaults are MUSIC, INC., Appellant,
MELODY COM-
FEDERAL COMMUNICATIONS MISSION, Appellee.
United States Court
Argued Jan.
Decided Washington, Cohn,
Mr. Marcus
Dobin and
whom Messrs. Paul
Stan-
e.g.,
See,
Naples
States,
ningham
States,
U.S.App.
v. United
v. United
(1962)
U.S.App.D.C. 281,
D.C.-,
Mr. John evidence, Commission, appears whom “From the it Communications Geller, Counsel, that, higher least, Henry at echelons Messrs. Gen. and the Ohlbaum, Deputy Daniel R. Coun- not Gen. of the networks were aware sel, is, Federal Communications Commis- the use such It how- controls. sion, brief, appellee. ever, equally were on for had the evident that public exposés ap- been which Jay Braun, Counsel, Mr. Howard Fed- likely pear persons to alert with a Commission, Communications also * * * to desire know the facts appearance appellee. entered an investigations and to cause real to be Before Chief and Bazelon, * * pointed made *. [A]s Fahy Judges. and Weight, general president the and out to vice attorney by of NBC two BAZELON, Chief congressional members of the com- The Federal Communications Commis- investigated these [which mittee refused to renew sion singular 1960], in it was operate WGMA, to radio standard suspicion that no had been indeed * * Hollywood, broadcast station in Florida. aroused Appellant’s only shareholders, En- Daniel findings, On the basis of the ex- these right Barry, produced and Jack televi- aminer recommended license renewaL prior sion to which shows 1960 in On the Commission re- given secretly as- some contestants were Enright examiner, the versed because answering questions. in sistance Barry requisite and “lack the character hearing Enright examiner stated that qualification to be licensees” on the Barry and ground “prolonged deception that their engaged relating viewing practiced upon “have in activities programs public patently to television which is so and fla- * * * grantly contrary are censurable and to interest [which] the adversely upon warrant, more, reflect their charac- as to the denial * * qualifications application ter of an licensee * * * Enright a radio station. However The Commission also found that Barry discourage such attempted activities an do constitute and had “to * * disqualification. investigations absolute and to frustrate” initial grand jury City York a New and found, mitigating as fac- network officials. tors, provided that had “out- WGMA standing service,” Enright Appellant petitioned and and that Barry express had no violated law reconsider its decision and to consoli- they pending appli- Commission when date oral conducted though Congress deceptive programs, operating the cations for renewal of licenses Broadcasting Company, since the amended the National practices.1 carried, toAct forbid The ex- such the network which and for a time owned, produced by aminer further stated: the En- Barry. Alternatively appel- imple justice requires Bar- “[S] that the lant asked Commission vacate its ry Enright’s conduct be consid- decision and withhold further decisions then-existing light ered in until it had decided the NBC case. Certainly circumstances. the net- appears works which broadcast these It then Commis- highly present case, rated had net- both sion’s initial decision in the hearing responsibility, work and licensee examiner NBC Act, (Supp. V, 1964). 1. Section Federal Communications U.S.C. 509§ holding opinion, perti- broadcast licenses. On rendered his proceed- part: nent while the NBC ings pending, were still Commission duped, it was “NBC contends appellant’s request denied for reconsid- promptly pro- and that it acted conjunction eration in applications with the NBC interest as soon tect the on the use- that “no *3 going on. it determined what was * * * purpose ful later, would be served.” One week in which NBC The manner the Commission ines- reacted when the revelations capably granted several license renewals to NBC upon it shows how broke any mention of the network’s recognized clearly it was inside the deceptive quiz in the role shows.3 trickery company that the of its wrong shows was on the side of the re the Commission’s We think downright separating line dishon- explain its différent fusal esty permissible from the make- appellant was er and NBC of treatment believe show business. The rec- de connected with ror. Both were urges judgment long ord that so ceptive and their danger as there was no of disclosure by the Com plications were considered acceptance to threaten audience virtually Yet time. mission at shows, NBC turned its back on disqualified and the other held one was the evidence that the Moreover, cases while in other not.4 might counterfeit, be and acted final- vio that criminal found ly only compelledby when it was suffi were not lations growing tide of dissatisfac- disqualifications bar cient character posed tion and the threat in the renewals,5 present in the aroused interest of various conduct sufficient. found noncriminal agencies. Clearly, any disposition to stated, “Obviously, mis The Commission according frame conduct not to ordi- nature here involved conduct nary morality public require- necessarily in a is broadcast field response ments but in to business category crim [from somewhat different necessities, and which shuns miscon- and, on the violations] inal antitrust only duct because of the risks in dis- case, con of a most serious facts of this covery, is a substantial discredit.”2 intimating any sequence.” Without any opinion of the mis concluded, as to whether however, “in a some here is conduct discussed this discredit was counterbalanced category” appel different what “the record of the network” in broad- lant’s, are not think the differences casting, decep- we and that its role in the need for disqualify to remove the so “obvious” as tive thus did not Broadcasting 223, WOKO, Applications cations Comm’n v. 2. In re Nat’l (1946); ., Docket 14091- Nos. Co 92, 14054-56, International Brotherhood Leedom v. initial decision of Hear Wkrs., U.S.App.D.C. ing Examiner, Elec. Nov. 1963. released (1960); Shawmut Ass’n F.2d 237 Following 3. oral Exchange Comm’n, & Securities court, counsel for the Oommission sub- 1945); (1st Feinstein & Co. 2d 791 a findings “no mitted memorandum (2d formal network’s lack as to the Mar Plus Lanolin Cosmetics knowledge in the zall, publicly shows had been made” Oommission. Company, Any inconsistency may & 2 Pike Electric here not be ex- General Westing- plained ehange R.R.2d 1038 a or cor- Fischer Broadcasting Co., ruling previously 22 Pike & Fisch- of a house rection erroneous contempo- R.R. 1023 since the cases were decided er raneously. Compare Communi- explanation. And whether are dif- Anthony WILLIAMS, Appellant, may ferences decisional importance.6 UNITED America, STATES of Moreover, “the Commission Appellee. explained sim its decision ‘with the through plicity and clearness which a States Court of halting impression ripens into reasonable spell are left to In the end we certitude. Argued Feb. out, argue, between conflict choose Decided March ing We must know inferences. duty before the decision means
what Rehearing En Petition for Banc and say it is ours to whether becomes Rehearing before the 17,1965. Petition ” May wrong.’ Division Denied Secretary of *4 U.S. 74 United 347 826, 832, 1015 Ct. S. therefore remand this case fur
We proceedings.7 The Commission
ther appellant’s application
should reconsider purposes of this accordance with
remand. Whatever the Commis action remand, explain
sion takes on it must reasons and do more than
its enumerate differences, any, if between
factual cases;
pellant and the other it must ex
plain relevance of those differences the. purposes Federal Communi
to the of the Act.
cations
So ordered.
FAHY, remanding explanation
I concur appel- difference of treatment of NBC, reconsideration,
lant to the of each in shows. violation certain licensees not in this con-
involved case and are, however, so unrelated that I
duet require explanation no further (appointed by Mr. Bruce Clubb E. matter. Commission in this court), Washington, C.,D. with whom Compare Hopkins, Yick 118 Wo v. the case was remanded to the Com L.Ed. 220 apparent mission because of its failure Hornsby Allen, F.2d apply consistent standards in a com Mary (5th 2d Carter parative hearing for a broadcast license. Comm’n, Co. v. Paint Federal Trade Secretary See also (5th 1964). supra; Carter Moun Corp. tain Corp. Transmission v. Federal Com Sunbeam Television See v. Fed Comm’n, Comm’n, munications 100 U.S. (1957), App.D.C.