National Association of Broadcasters v. Federal Communications Commission

fees at issue particular a review of herein; rather, general that a we consider required. the entire schedule

review accordingly.

Judgment ASSOCIATION OF

NATIONAL

BROADCASTERS, Appellant,

FEDERAL COMMUNICATIONS

COMMISSION, Appellee.*

No. 75-1087. of Appeals,

United States of Columbia Circuit.

District May 1976.

Argued Dec.

Decided * 75-1315, cases), 75-1101, 02; Companies, (two casting Metromedia, (two cases), Inc. Inc. 46; Plaza, (two cases), (two Telegraph 75- Telephone Inc. Co. Constitution American Communications, 1354, 55; 42; 75-1141, Enterprises, Inc. cases), Inc. Nationwide Barnes 75-1356, 57; cases), 75-1144, 45; (two Wichita Falls Tele- (two cases), Broadcast Southern 75-1405, 06; cases), 75-1153, 54; (two Artesia cases), Indepen (two casters Broadcasting ing Co. 75-1413, 14; Co., cases), 75-1155; (two Association, Inc. Telephone National dent 75-1416, 17; cases), (two cases), (two Corp. Arizona Cooperative 75- Telephone Assoc. Hearst 19; 75-1418, (two cases), (two 1162, 63; Bethany Broadcasting Television Co. WHTN-TV, Inc., 75-1520; Co. 75-1164, 65; Broadcasting, World Commu- cases), ITT Inc. Orion 75-1539; nications, Inc., 1172; KWMT, (two 75-1166, Communi- cases), Combined (two cases), 75-1168, Inc. 75-1596; Philadelphia Corp., 75-1167, 73; KOTV, (two cases), Greater cations Radio, Inc., 75-1597; Inc. College 1175; Communi- Arkansas Broad State Northwest 75-1598; K(O) cases), Corp., Radio (two KUA One casting 75- cations Corp. (two and Television Co. 75-1603, 04; Calif., cases), 71; Communica- 75-1637, 38; Inc. Able Communications cases), (two 75-1170, 74; Corp. Corp. cases), (two (two cases), Service tions Satellite KDFW-TV, GTE 73; 75-1672, cases), 75-1180, 81; (two Ore- Group, Inc. Inc. Amaturo 75-1685, 86; cases), (two 75-1183, 84; Clay Broadcasting gon Broadcasting cases), (two Co. cases), (two Broadcasting Corp. 75-1185, 86; cases), Capital Corp. (two Communications, Cities Golden Circle (two Corp. 90; 75-1689, 90; Broadcasting 75-1189, (two cases), Adler Inc. WLAC, (two cases), 47; 75-1262; cases), 75-1746, 75-1769, 70; Service, Inc., Inc. Broadcasting System Western United Union Regency 75-1270, 71; Scripps-Howard Co. cases), Telegraph (two Co. 75-1771, 72; 75-1277; (two cases), Owners Broadcasting Aircraft Corp., Nation 75-1827; Westinghouse Assoc., Broad- Broadcasters, 75-1278; Pilots FM al Association of 75-1834; Co., Inc., 75-1313, Union cases), casting and Western (two Francisco Bahia de San International, cases) (two Co., v. Federal Com- 1347; Broadcasting Inc. Inc. Electric General Commission, 45; cases), 75-1314, munications (two Broad- American Jennes, Washington, C.,

Ernest W. D. Fels, with whom John B. Nicholas W. Sum- mers, Thomas J. Preston R. Dougherty, Padden, Rosenbloom, Bankson, Joel John P. Jr., Frank, Theodore D. Thomas Schatten- field, Schwartz, Blume, Louis Jack P. Alan Walton, Jr., Y. Naftalin and A. Frederick Washington, C.,D. were on the brief for 75-1087, in Nos. appellants-petitioners 75- 75-1164, 75-1101, 75-1102, 75-1165, 75-1166, 75-1167, 75-1168, 75-1169, 75- 1170, 75-1171, 75-1172, 75-1173, 75-1174, 75-1175, 75-1183, 75-1184, 75-1189, 75- 1190, 75-1277, 75-1278, 75-1356, 75-1357, 75-1405, 75-1406, 75-1416, 75-1417, 75- 1418, 75-1419, 75-1597, 75-1598, 75-1672, 75-1673, 75-1685, 75-1686, 75-1769, 75- argued 75-1771 and 75-1772 also appellant-petitioner broadcast licensees. on the brief for Volpe, appellee-respondents. were Czarra, Jr., Joseph F. Edgar Marino, Evans, Joseph Atty., Lee A. C., Diana appearances entered III, Washington, D. 75-1167, Shapiro, Atty., F. C. C. and Howard E. 75-1166, in Nos. C., Justice, D. Washington, also Dept, 75-1168, 75-1169, appellants 75-1170 for appellee-respon- entered 75-1173, appearances 75-1172, Nos. dents. and 75-1175. Fisher, Southmayd, P. John Ben C. Gro- C.,D. Washington, Dempsey, J. William Cooper, Martin R. Leader and Rich- ver C. for petitioner-appel- an appearance entered C., Washington, R. D. were Zaragoza, ard 75-1417, 75-1416, petitioners- in Nos.

lant petitioners-appellants for in on brief 75-1419, and 75-1418 in Nos. appellants 75-1145. Nos. 75-1144 and 75-1685 and in Nos. appellants-petitioners in Nos. 75- 75-1686, appellant-petitioner Beaverton, Or., Jorgensen, Norman E. and Chris- 1769, 75-1770, 75-1772. 75-1771 petitioners-appellants was on the brief for C., en- D. Washington, J. Reynolds, topher in Nos. 75-1153 and 75-1154. appellants-petition- for appearance an tered C., O’Reilly, Washington, Thomas D. J. 75-1686, appellant- and Nos. ers in 75—1685 in No. petitioner was on brief for 75- 75-1769, 75-1770, 75-1771 in Nos. petitioner 1155. and 75-1772. C., Cosson, Washington, was David D. on C., House, D. en- Washington, Arthur G. in the brief Nos. appellant-petitioner for appearance appellants-petition- for tered an 75-1162 and 75-1163. and 75-1357. in Nos. 75-1356 ers Frischkorn, Jr., Prokop R. Ruth L. Allen A. and Lawrence M. Mil- Robert Woods Malone, C.,D. Washington, William R. and C., ler, Washington, appearances D. entered appellant-petitioner were on the brief for in in Nos. 75-1597 and 75-1598. petitioner for Nos. 75-1180 and 75-1181. C.,D. Roger Wollenberg, Washington, J. Margot and Smiley Alan Y. Naftalin appellants-peti- an for appearance entered C.,D. were on the Humphrey, Washington, in Nos. 75-1672 and 75-1673. tioners for McGraw-Hill appellant-petitioner brief Moulton, City, Co., P. New for in 75-1183 Horace York Inc. Nos. and Broadcasting in 75-1141 and Nos. 75-1184. petitioners-appellants al., in argued petitioner et also for 75-1142 Lothschuetz, Mansfield, Ohio, M. John 75-1155, in Nos. appellant-petitioner No. C., Hill, Washington, C. D. Carolyn and 75-1163, appellant-petitioner 75-1162 and Westwood, Kan., Baker, were Warren E. on in petitioner and in Nos. 75-1180 75— No. petitioner the brief in 75-1262. for in 75-1262, Nos. appellant-petitioner No. C., Yohalem, Washington, D. Joel on 75-1271, in No. 75- petitioners and 75-1270 in appellant-petitioner the brief for Nos. Nos. 75-1637 appellant-petitioner 75-1271. Jack Werner 75-1270 and and 75-1638, No. 75-1827 and petitioner and C.,D. Singer, Washington, Laurence also 75-1846 and Nos. appellant-petitioner for appearances appellant-petition- entered Shulman, G. Stephen N. Stephen 75-1847. er in Nos. 75-1270 75-1271. C., D. Wood, D. William God- Washington, Wise, Erwin G. Krasnow and Michael O. Hirschhorn, Garling- dard, Eric F. Mark L. C., were Washington, D. on the brief for Green, City, York and Alfred A. New house in Nos. 75-1354 appellant-petitioner petitioners-appellants for on brief were 75-1355. 75-1142. 75-1141 and in Nos. C., Papajohn, N. D. Washington, John Counsel, C., Pash, Jr., F. C. Grey C. in No. petitioner was on the for 75- brief R. C., with whom Ashton Washington, D. Counsel, Armstrong, M. Daniel Hardy, Gen. C., White, A. Counsel, Robert B. Robert E. McKee and Howard F. C. Gen. Associate peti- Gustafson, on brief City, K. New York were Laurence Nicholson C., Justice, D. tioners No. 75-1539. Washington, Dept, of Atty., Bankson, Jr., Scharff, Washington, C., John P. D. William H. Fitz and J. Laurent C., Clark, D. were Washington, R. George petitioners-appellants was on the brief for in No. 75-1596. the brief for in Nos. 75-1405 and 75-1406. McKenna, Jr., Thomas N. Fro- A. James Woodworth, John D. Lane and L. Ramsey Lerman, hock, Washington, A. Steven C.,D. were on the brief Washington, C., for petitioners-ap- were on the brief D. 75-1834. petitioner No. 75-1314, 75-1315, in Nos. pellants Conn, City, E. New York Robert entered 75-1345, 75-1346, 75-1347, 75-1603 and 75- appearance appellant-petitioner Nos. and 75-1847. Clarke, C., D. Washington, R. Cynthia appellant-petitioner the brief for was on MacKINNON, TAMM and Circuit Before 75-1637 and 75-1638. Nos. KAUFMAN,* Judges, United States Judge Maryland. District for the District Heald, F. Kenehan and Robert L. Edward C., Washington, D. were on Riley, James P. by for the court filed Opinion MacKIN- in Nos. petitioners-appellants the brief for NON, Judge. Circuit 75-1414, 75-1185, 75-1186, 75-1413, 75- 1746, 75-1747, 75-1689, 75-1690. Frank U. TAMM, filed Concurring opinion Cir- Hildreth, Washington, and Richard Fletcher cuit Judge. C., for in appearances appellants D. entered MacKINNON, Judge: Circuit 75-1185, in No. 75-1186. No. C., in Yodice, Petitioners-appellants1 D. these con Washington,

John was S. in No. 75-1827. petitioner challenge validity on the brief for solidated cases of a * Sitting designation pursuant except appears quite to 28 U.S.C. The statute itself clear: 292(d). eight specific § for in cases listed section 402(b) (none or of which concern refunds fee In as whether review was authorized 1. doubt assessments), “[a]ny enjoin, proceeding to set 402(a) (1970) 47 U.S.C. and 28 U.S.C. § aside, suspend any annul or order of the [Fed- (1970) (petitions review), 2342 47 § eral Commission under this Communications] 402(b) (1970) (appeals), many U.S.C. § chapter brought [by peti- . . shall be parties proceedings initiated review under tion for review under 28 47 § U.S.C. 2342].” each, are, paths in the alternative. The two 402(a) (1970) (emphasis U.S.C. In § however, “by mutually definition exclusive” FCC, Broadcasting Tomah-Mauston v. 113 Co. given may and a order not be reviewed under U.S.App.D.C. (1962), 306 F.2d 811 we held FCC, Corp. both. Rhode Island Television “ancillary” that an order which is to one of the 40, 44, U.S.App.D.C. 320 F.2d 766 eight types specified of Commission action in Music, FCC, (1963), quoting Functional Inc. v. 402(b) may section be under that reviewed sec- U.S.App.D.C. 274 F.2d Thereafter, Cook, States, tion. in Inc. v. United denied, cert. 361 U.S. 80 S.Ct. 1968), (7th 394 F.2d n. 7 & Cir. parties seeking L.Ed.2d 81 Since the “ancillary” suggested Seventh Circuit of 11 review of the 81 cases consolidated here 75-1155, 75-1262, 75-1278, (Nos. mean “in aid of’ as well as “subordinate to.” 75- 1520, 75-1539, 75-1596, 75-1597, 75-1598, event, any (nor any 75- we do not believe does 75-1834) only petitions party allege) presented filed for re that the orders for our 402(a), view under section we must decide here can be “ancil- consideration considered proper whether that section is the basis for our lary” of the actions listed under to one section jurisdiction. 402(b), since the reim- fees assessed were Initially, we note that in similar but not iden agency for the costs associated with burse circumstances, tical the Fifth Circuit reviewed (as rendering its services mandated 402(a). Clay an order of the FCC under section 483a) rather than for a reason connect- § U.S.C Corp. Broadcasting of Texas v. United any way purposes specified ed (5th 1972), F.2d 1315 n. Cir. rev’d 1146, such, 402(b). proper basis section As grounds, on other 402(a) jurisdiction § our here is U.S.C. There, L under 39 .Ed.2d 370 the order infra, see note 3 and this § U.S.C. establishing was the one the fee sched review ule, jurisdiction all court has to hear claims of refunds; denying while here are orders parties. cases, however, deprive in both the effect is to Petitioners-appellants will hereinafter be re- parties seeking money review of their simply petitioners. ferred to allegedly improper reasons. Act Independent Appropriations Offices Federal Com- final orders2 of the

group (FCC) deny which federal (IOAA),5 decreed munications under the Commission’s paid of fees thereafter assess fees for refunds agencies should agree that fee schedule.3 We “work, service, report, publication, doc- assessed, and thus illegally were ument, benefit, authority, use privilege, improperly fees were refunds of those certificate, franchise, license, regis- permit, denied; these actions we therefore remand tration, thing utility” of value or or similar fees and proper the FCC to determine any person, agency on so conferred illegally collected. portion refund those would “self-sus- transactions possible.” extent taining the full in a com- explain greater detail weAs Fifth challenged schedule was date,4 this same case decided panion others, par- by, among some Circuit by the promulgated fee schedule us, upheld and was who are now before authority Title V of the ties under FCC performs, § services it 31 U.S.C. 483a note infra. (1970), a which would have command little above, explain see note 1 As we meaning if the were unable refund jurisdiction this case for our basis already-collected portion'of an fee that had 402(a) and 28 2342. The § U.S.C. U.S.C. inequitable. determined to be unfair or been provides: statute latter improperly assessed refunds of fees un Since jurisdic- appeals has exclusive The court of “necessary” are thus der the IOAA exe aside, (in enjoin, suspend whole or set tion Commission, function of the cution authority validity (1) part), determine the or to of— impliedly make such refunds is final of the Federal Communica- all orders 154(i) by (1970). granted to FCC § the U.S.C. by made sec- tions Commission reviewable Where, here, as the has announced its 402(a) title 47 tion of payments “in excess of intention to refund an by petition filing a as invoked Jurisdiction is fee,” (1971), applicable see 47 1.1111 C.F.R. § provided by '2344 and this title. section so, the available to has funds do and has done (1970) (emphasis A § 28 U.S.C. question past, in the there can be no of its so authority concurrently petitioners have number of filed (subject judicial review). to do so to Claims, and at suits for refund in the Court of 711(3), (1970). 725q-1 Proce §§ Cf. U.S.C. one, Telephone Telegraph & least American durally, the form a the FCC’s action will take of Co., jurisdic- argues that that tribunal has sole Treasury Department that certification hear case. See Brief at 12. tion to this AT&T proper charges, are see the refunds General jurisdic have We believe that we exclusive Office, Policy Accounting and Procedures Man validity final the orders tion determine Agencies, for ual Guidance of Federal Title plain wording denying refunds under the (1970). 25.11 action the Gen However, § Settlement above-quoted a clear dis statute. Id.', Accounting eral is involved. authority, Office that must be made between tinction Comptroller court, power No. General Directive B-142380 this which resides refunds, (unpublished, 1960). actually March vested which is order Thus, party a has in the Court of before Commission two both the district court and may F.Supp. procedures Clapp alternative which followed Claims. 576, United denied, (1) cert. if the itself a refund: a Ct.Cl. Commission denies (1954). may petition 99 L.Ed. 658 Whether a 75 S.Ct. be filed in the court of for review authority appeals appeals challenging validity court of has itself order question grant a refund, in a case like this is denying (2) seeking refunds action a address, this case we need not money judgment be filed in either the open to us. In order to course action is federal court or the Claims. district refunds, required specific we would be direct case, present many petitioners refund and the amount determine alternatives. have availed themselves of both for that. We record before us is insufficient Believing question best addressed it to be adjudicating the are limited to validi therefore Claims, opinion express no as the Court of refunds, denying ty and remand of the orders disposition proper of the actions filed ing for further action. Commission light our order to the that court in remand reject argument of counsel AT&T We Commission. power has no to order re- that the itself FCC FCC, Assn. v. National Television Cable Brief at 12. Absent some funds. See AT&T U.S.App.D.C. -, 554 F.2d 1094 statutory complication or barri- administrative er, unlawfully power fees are to refund V, 31, 1951, Aug. § Title power 5. Act of ch. implicit in the to assess fees. collected Here, codified, empowered 31 U.S.C. 483a 65 Stat. the FCC to has IOAA equitable” prescribe for each of “fair the basis for the petitions Broad form instant respects Clay court in all review. United States.6 Corp. of Texas v. casting Televi Cable (the National

Only party one I. of that de Association) sought review sion in these cases is Court, limited to the The threshold Supreme in the cision for seek- have basis whether of the cable television validity issue of appealed never ing recovery since Cable Television fee.7 In National annual Broadcasting,12 up- Clay decision (NCTA), 415 v. United States Association challenged here. The held the fees now 1146, 1150, 39 L.Ed.2d decision was cable only appeal from that “so that the the Court reversed questioned who the va- operators television the Federal Com remanded to case can be fee, which is not at lidity of their annual pro for further Commission munications whether, Thus we must decide issue here. opinion.” this ceedings consistent decision, petition- by failing appeal remand, suspended After challenge the rights to ers waived their the annual fee for both collection of future further, and what effect 1970 fee schedule sys- television and cable systems broadcast Supreme Court in NCTA the decision of the the 1970 fee sched- revision of pending tems has upon question. annu- ule,8 all cable television and refunded argument first is that Petitioners’ under that had been collected fees which al Court, deciding that Supreme remaining fees assessed fee schedule.9 fee was improperly television annual cable against regu- other the 1970 fee schedule by reversing remanding measured in the other areas industries lated proceedings,13 effectively for further struck however, were operation,10 Commission’s 1970 fee schedule. We down entire suspended. refunded nor neither Court’s ac agree cannot receiving protests a number After broadly be so viewed. tion in NCTA to (other on individual requests refund observed, the issue be already weAs have fee) paid television annual than the cable case was specifically the Court in that fore schedule, the FCC issued under the 1970 of the cable television validity limited to the fee;14 denying language re- opinions of and orders annual series although vague places, opinion, generally.11 Those orders Court’s requests fund rev’d, 1972), (5th fees under the 415 U.S. 10. The Commission assessed 6. 464 F.2d 1313 Cir. 1146, (1974). 336, following 370 39 L.Ed.2d of 94 S.Ct. in the six areas 1970 fee schedule Services, operation: Broadcast Com- its Radio certiorari, petition the National Ca- In its for 7. Services, Safety Special Radio mon Carrier Assn, defined the issues as fol- ble Television Services, Services, Oper- Television Field Cable lows: Applica- (Commercial Operator Radio ations the Federal Communications 1. Whether Testing tions), Engineer (Equipment and Chief regulatory scheme con- CATV Commission’s Approval). generally 47 C.F.R. recipient” required fers “value to (1971). 1.1101-1.1120 §§ Appropria- Independent Title V of the Office Act, justify an annual fee on in order to tion denied, 730, industry. 52 reconsideration 50 the CATV 11. F.C.C.2d 545, recover (1975); 2. Whether reconsid 51 F.C.C.2d 666 F.C.C.2d regulation cost of its of CATV the full industry denied, (1975); 207 53 F.C.C.2d eration 53 F.C.C.2d spe- the fees are unrelated to where (1975). (1975); 54 515 F.C.C.2d 854 performed by the Commission. cific services (emphasis at 2-3 NCTA Petition Certiorari accompanying supra text. 12. See note 6 pointedly added). on to The Association went only annual assessment that “it is note at -, supra, U.S.App.D.C. 180 See text 13. attack, filing fees for the is under not the 554 F.2d at 1122-1123. (emphasis applications." at 29 Id. (1974). 12 8. 46 F.C.C.2d supra. 7 14. See note (1974). 1089 9.

1124 for this court to appropriate it would not be beyond go clearly said be cannot issue.15 defined raising that proper so hold: method for petition issue would have been rule in accepted generally

It than all of the less that where following civil cases re- rehearing in the Fifth Circuit an adverse appeal co-parties several Therefore, Supreme Court. mand ap parties as to the a reversal judgment, Clay reversal of we believe Court’s justify a or not necessitate does pealing Broadcasting a reversal as to the was appealing.16 parties as to reversal to it the cable presented issue which assuming arguendo Moreover, even as in- interpreted operators, and cannot directly on passing read as NCTA could be validating the entire schedule, fee schedule.17 entire 1970 fee validity 339; Tompkins, petition 304 U.S. “Only questions in the Erie R.R. v. set forth L.Ed.2d 64, 66, 68-69, fairly comprised 817, therein will 1188 58 S.Ct. 82 L.Ed. certiorari] [for Rev.R.Sup.Ct. the court.” go (1938). be considered 23(1)(C). indication of intent to be- No not mentioned which are Questions petition appears yond in the for certiorari properly petition for certiorari are not in the opinion. NCTA Supreme for consideration. Court before references to cite several loose Petitioners States, 179, 190, 373 U.S. 83 v. United Namet industry in the broadcasters and the broadcast 1151, (1963); 10 L.Ed.2d 278 Beck v. S.Ct. opinion attempt support a broad NCTA 541, 553, 955, Washington, 82 8 369 U.S. S.Ct. See, g., reading e. Brief of that decision. ABC (1962); v. 355 98 Lawn United L.Ed.2d 341, 1146; 23, citing 415 U.S. at 94 at 311, 16, 339, n. 78 S.Ct. L.Ed.2d U.S. 341-2, 27, citing Brief at 415 U.S. at NAB Supreme limits its Court therefore 11, 1146; citing Brief at WHTN-TV questions specifically certiorari review on 343, 94 S.Ct. 1146. These scattered U.S. Stein, petition. Mazer v. 347 U.S. raised in the 201, 208, parties other than cable television references 460, (1954); 98 L.Ed. 630 74 S.Ct. operators enough allow us to find an NLRB, 350, are Co. v. 309 U.S. Licorice National part Supreme (1940); intention on Court 84 L.Ed. 799 60 S.Ct. 357 n. Talking Corp. Pictures v. Western the entire fee schedule. invalidate General 175, 177-79, Co., Electric See, Cizek, g., 225 Cal. Culbertson (1938); Crown Cork & Seal Co. 82 L.Ed. 451, 470-472, App.2d Cal.Rptr. Co., Gutmann v. Ferdinand (1964); Mulligan v. First Nat’l Bank & Trust Here, 82 L.Ed. 1265 58 S.Ct. petition (Ky. Lexington, 60-61 351 S.W.2d Co. clearly certiorari was limited to the Wrestling 1961); Mpls. Boxing Ulrich v. & fee, validity the cable television annual see Club, Inc., 268 Minn. N.W.2d wording given the narrow note 7 Berman, (1964); App. Frankel v. petitioners’ petition agree with we cannot (1960); Modine validity Div.2d 199 N.Y.S.2d contention that Dist., “fairly comprised Mfg. School Co. v. North East Ind. fee schedule is the entire 1973); (Tex.Civ.App. 5B therein.” S.W.2d (1958); Appeal rule, course, power 5 Am. & Error § limit C.J.S. does not This important Appeal (1962). This rule Error to decide Jur.2d & of the questions parties. proper subject exception Blonder- not raised that where a Laboratories, University Tongue of Illi- appealing parties Inc. v. as to the decision of the case Foundation, 313, 320-21 n. 402 U.S. par nois dependent upon judgment as to the the is (1971). The rule has 28 L.Ed.2d judgment appealing, re must be ties not the exceptions, particularly well-recognized certain appealing versed as a whole. The fact that gen- arising in the federal courts. in cases parties have, nonappealing eco a similar Kirkham, erally Jurisdiction R. Robertson & F. interest, however, enough. For nomic Supreme the United States Court of Cavett, Campbell example, in 195 Okla. 1951); (R. Kurland ed. R. 418 Wolfson & P. § court, pass appellate in P.2d 187 an Gressman, Supreme Practice E. Court Stern & beneficiary right ing a testa of a life on 1969). (4th None of these seem 6.37 ed. residuary mentary in estate to trust a testator’s decision, however; applicable to the NCTA proportionate share of the income of circumstances, impor- exceptional are no there administration, pending its refused to estate judicial questions in the administration tant right pass to that on the of other beneficiaries Moreover, courts, plain errors here. federal they appeal where had failed to income ques- Supreme has decided when the Court the trial court’s decision. petition in the tion which was not raised certiorari, invariably explicitly. it has done so is the effect of A somewhat different issue See, g., Blonder-Tongue, 402 U.S. at Clay Broadcasting Line, as collateral 1434; the decision Moragne v. Marine States S.Ct. Inc., Moore, present estoppel IB J. in the case. See 380 n. that, appli- should review the future however, Commission say, This is not the Court in NCTA the ex- cation of its entire fee schedule to laid down principles validity of the question not call into application do tent that the of such schedule although fee schedule: entire its decision. might the future violate having read as cannot be NCTA opinion and a new fact, place,19 took that what validity than the other upon anything acted January was on adopted fee schedule fee, deci- annual television of the cable before us The distinct now 1975.20 validity on strong precedent sion is are entitled to a re- petitioners is whether the same time. We adopted other fund of fees assessed before time un- imposed the fees on not unmindful are fee schedule in the now-doubtful 1970 der from the an- apart are worlds broadcasters NCTA. principles announced light fee. The basis for the television nual cable case, are petitioners seek- present In the in the radically different both fees is two specific charges which ing refund and in the of the services rendered nature 1970 and 1975. they paid between Some Nonetheless, gener- of services. variety in the ear- petitioners participated here decisis al rules of stare apply. Certainly, by to the order challenge lier Fifth Circuit consist- proceedings “for further remanding schedule, but none establishing opinion,”18 Supreme Court ent with this ultimately successful parties the were (but require) did not intended argu- 18. 415 U.S. at 94 S.Ct. at 1151. Federal Practice 0.450[1] fi many appears to be that ment Clay appeal participated and failed to NCTA, here decision in FCC had 19. Prior to the portion decision to the of that the non-cable rulemaking proceeding a new instituted Court, Supreme are therefore and that general proposed a increase in fee its 1970 Clay upholding judgment in bound schedule. 38 F.C.C.2d 587 After re- portions 1970 fee schedule and non-cable submitted, of comments the Commission view However, this ask for refunds. cannot now adopted Report proceeding in that and Order parties here and is was not briefed issue establishing a new schedule of fees that was to properly Fed.R. before us. Cf. therefore not 1,May become effective 1974. See FCC News 8(c). argument, At oral the Government Civ.P. 27, 1974). (February Report No. 9201 Before counsel stated: released, newly-adopted how- argument the collat- is some [on I think there ever, Supreme handed down its deci- Court certainly, estoppel respect, with issue] eral decided sua and the Commission sion of the National Association the members light sponte to reconsider the new schedule Clay parties in and to the other Broadcasters Broadcasting Report News No. of that decision. FCC Circuit, Fifth but the before the 8, 1974). (March Notice of Pro- In a Further theory. has not relied on Commission (August Rulemaking, posed argument). (Transcribed Under such from oral 1974), proposed extensive re- the Commission circumstances, issue has been we hold that the schedule, its entire fee and acknowl- visions of waived. edged that the Further Notice controls this case has been The rule which Moore: stated Professor remand of the case for further reflects the judgment ... be reversed A proceedings directed single ground, appellate court on a respect annual to the cable television determinations of the remanded with other addition, and, proposes revisions other case, left intact. In such a trial court light in the schedule of fees in of the Court’s the trial court unreversed determinations of interpretation of the statute. remand; generally to on but this are adhered specifically, the More Id. at 403. application of the doctrine of law of the is an and went to the NCTA decision referred case, judicata res or collateral rather than say: prior estoppel. the unreversed And since Although to decision was limited the Court’s court, by trial were made the determinations fee, annual issue of the cable television the itself addresses the law of the case doctrine rejected concept appears the the to have only, and does not discretion to that court’s approximate its should fees Commission’s compel adherence. budget. Moore, (emphasis supra add IB J. 0.416[2] fl at 404. ed, eliminated). Id. consistent footnotes This^-is ioft1fe--presgnt disposition make with we granted in 20. 50 F.C.C.2d reconsideration infra, U.S.App.D.C. text case. See above (1975). part, 'p'cirt 52 F.C.C.2d 333 and denied at -, at 1125-1128. 554 F.2d Second, any judicial challenge under sec- to Su- companies of the cable petition 402(a) (b) of the Communications previous had no tions and They have preme Court.21 402(b) (1970), Act, 402(a), pre- under validity, 47 U.S.C. question §§ opportunity by decision or order of supposes appealable down laid principles Commission; the 1970 no such “order” ac- under but them against assessed no assessment. good seems to be each individual companies There schedule. fee opportunity. by request them a refund deny now to followed Payment reason required in order practical purposes our argues against The Government Final- such a reviewable order. precipitate all of observing that by here jurisdiction the Commission importantly, and most ly, already oppor had an have petitioners payment followed staff has indicated fees as challenge specific tunity to procedure: by preferred refund is the pay at the time when them against sessed grant payable The fee is . such required.22 Apparently, ment was wishes, it can file a If closing. Cowles the with required have challenge would payment, after for refund request review judicial while holding payment of cases, followed in other procedure is the simplistic argu This being pursued. 1.1102(d) which is set forth in Section and important facts. ment overlooks several The ex- Rules. of the Commission’s are those First, here the fees paying of ception principle certain grant for the filings, assessed for the Commission on grant by fee assessed authorization, and for the basic necessary occasions when has occurred on closing authority of broadcasters. operating in de- difficulty has had Commission uncertain has indicated in no Commission grant the size of the fee and did ciding paid must be when these fees terms grant application delay not wish to furnished, with serious conse service is a decision on the question pending if are party for the assessed quences fee. grant not.23 issuing grants, approvals NAB, Although petitioner and and au- tions Assn., Telephone Thus, (d)(1) Independent subparagraph filed AT&T and thorizations. (1971)] case in the 1.1102(c)(1) briefs amicus curiae in the NCTA see C.F.R. [sic: challenging parts the 1970 Court grant payable provided required fees are fee, schedule other than the cable television fee NAB Brief at days by grant after the Commis- within 45 17; 12; Brief at 33 n. Govt. or, assignments or sion in the case of trans- J.App. that the there is no indication services, im- in the broadcast fers of control mediately following expand accepted invitations to its review these consummation of beyond questions presented petition in the Unfortunately, assignment. how- transfer or supra. for certiorari. See note 15 ever, abused this accommodation has been by recipients of Commission authoriza- some Brief at See also 52 F.C.C.2d 22. Govt. 43 n. 25. past six months who have failed tions pay required even fee after or refused specific 1.1102(d) (1972) example, 23. For 47 C.F.R. § We notification Commission. states: therefore, are, up, pointing the insertion grants, approvals is- All and authorizations language subparagraph, in this additional subject made sued are 1.1102(d), that all now numbered Section receipt applicable payment approvals grants, authorizations issued required period. make Failure to within subject pay- are made the Commission payment applicable fee to the Commis- receipt applicable fee within ment required in the date shall result sion required period, to make and that failure the payment becoming approval grant, authorization or applicable fee to the Commis- atter that date. null and void and ineffective required shall result in the sion date (Emphasis added). ex- The Commission has approval becoming grant, authorization language plained as follows: the use of after that date. and void and ineffective null dealing of our rules In Section 1.1102 simi- This and 28 F.C.C.2d fees, attempted payment estab- the lish practicable see, g., provisions, lar system payment most which was against effectively prohibit persons pay- responsible for the to those withholding pay- time, fees are assessed which, whom at the same ment of fees judicial pending up an administrative or delay ment operate our or hold would not challenge. processing applica- substantive actions schedule, the entire but (1971). Although regarding 1970 fee F.C.C.2d 1.1002(d) (1971), to in Absent circum- extenuating referred do so. C.F.R. did not above, of re- makes no mention quotation stances, would be inclined to normally we re- contemplate funds, 1.1103 does section had waived fur- they thereby hold that applica- excess of an “payments funds were con- challenge they to ther Because the Commission fee.” [legal] ble petitioners that action. But here testing in necessary and preferable it both has made the FCC justifiably relied on statements pay- after only fee assessment to protest would that action on refunds to the effect it is policy, declared that publicly ment on its own by the Commission be taken petitioners requiring from estopped now petitioners initiative.24 Since FCC led procedure. to another follow their timely action on to believe that more in this obstacle to review greater part unnecessary, prior possibility A court, is the fact that all eyes, in our on of an to the Fifth Circuit application ap now before us could have petitioners suit. present remand cannot bar re upon the Fifth peared before Circuit jurisdic conclude we have We that case the Supreme the NCTA from

mand of petitioners’ request that we appeals that tion to consider request the court In Broadcasting agency’s action at this time. Clay its decision review consider 24. Prior fee schedule decision denied a indicative that those This intent, mission declared statement, schedule at the of the fee (1970) (emphasis now mission are representation. minor sible limits. ords so on reconsideration.’’ same “[t]he As a take some Following the decision in refund by ever, any person'claiming requests for refund at claim. adopted therefore, initiative. The serve should then will be taken F.C.C.2d justified in disposed of the ‘a more moderate fee’ schedule being days the Commission representation to the more moderate fees who Commission appropriate adjustments were Treasury. See all funds collected under result of revisions in the fee schedules responded to that it can make refunds in the but there is no reason not to were stay pending its own reconsideration has not received such refund schedule. herein, after delay challenged. paid requested time, which culminated in the NCTA escrowed advise judicial challenges relying upon by the the Commission fees under the 1970 Upon the date of added). refunds completion certain refunds action to and the will apply initial correction issuance of (1971) (emphasis petitions by in this the Commission reconsideration, note maintain so Both in a made, without Consistent to all such this time will doing, parties Court, filing 27 infra. This is completion. suspense exceeded accomplish them regard. entitlement this task Commission’s adequate it stated that the 1970 fee of individual intended its cable await action are in order further ado: to the on its own the Com- in the fee order, apply the 614, 615 with this fees, schedule adopted If, account permis- certain within opera- of his event Com- how- It may rec- he is, tors for refund statement 49 F.C.C.2d 1089 had variety lulled the were Thus, fees had been ing failing Counsel Claims dated June (J.App, cessity requests Circuit. Affidavit prior respect ent See, TV Co. We The Commission suant refunds possible on the and facts A claims my expected within the near future. tors, Clay Broadcasting. recovery category pending ruling the cable television annual fees time, placing have concluded office is g., J.App. 367. and we for further to refunds 416-17). . to the current of the FCC stated: the orders v. United part of cable would be acted The Commission for refund under seek a clarification or reconsideration of Ashton regard to cannot without of intent: industry parties broadcast It on the surrounding of fees the broadcast is our before suspended, make the will researching (1974) say petitions under requiring any proceedings other proceed present now cable fees with into several actions under R. that we Moreover, television refund Commission, review filed Hardy, cable (emphasis the 1970 fee has than believing well as cable annual upon ^[1970] appropriate the refund and the Commission gave NCTA, industry intention and claims (Ct.Cl. as consideration, and in the Court of should refund all requests cable expeditiously companies without before here, applicable law Cannon system opera- further action no in an affidavit fee schedule. petitions the General that refund added). No. there seek- in a differ- indication, operators. therefore, a similar to initiate paid pur- schedule. question. the Fifth refunds. erred the ne- from a 82-74) Beach At as rejected principles require did enunciate us to so we have considered and holding, to review the schedule here argued ques- two find that entire fee additional bars the broadcasters, voluntary payment” “the doc parties applicable here: tioned the former, the As to the them, elements, trine and laches.25 improper to included these were payments short is that answer imposed exceeded therefore the fees “voluntary.” note 23 However, not in sense See permissible amounts. because Navigation Co. v. supra; Steam insufficient, Oceanic is the record it evidence in this 329, 671, Stranahan, 214 U.S. to determine impossible is for us therefrom Co. v. United (1909); L.Ed. 1013 Swift for a percentage range the dollar precise 28 L.Ed. proper fee. latter, the we note regards As invalidated NCTA, the Court the cable delay26 prejudice neither unreasonable nor it television annual fee because ca- charged defendant,27 to both elements necessary the part upon based in operators “pub- ble a fee Zuckert, laches, U.S.App. of Powell v. lic served.” 415 policy or interest (1966), F.2d has D.C. that, 1146. The Court held Therefore, been here. these two de shown although language of IOAA of some to bar in cannot be raised our review fenses appears allow a fee with such ele- to this action. ments, part independent in for an charging (rather public solely interest served than II. upon recipient) for value conferred presented by this questions The difficult rather makes a tax than a the assessment procedural: petitioners case are all whether the IOAA fee. It must be concluded in (dis- have for suit this court any basis this since there narrowly prohibit read to section), and what previous cussed in the of was no in the statute an intent indication (discussed in the remedy applied is to be part delegate on the Congress of Having next section). resolved the former 415 U.S. at power tax to the FCC. petitioners, in of the sub- favor 94 S.Ct. 1146. validity the claims stantive issue However, incorporation compensa- easily is decided: clearly, refunds public elements into the tion for interest laid down Court principles 1970 fee schedule was limited to the in us to require NCTA strike down cable fee: the agency’s television annual schedule, having entire 1970 fee done comments proposing adopting this, deny- to declare that the FCC erred in it clear 1970 fee make that “the schedule ing petitioners’ requests. refund While is was public interest served” considered true many that the broadcast businesses of setting all fees: tremendously here are different, the formulation both in the extent and character rationale for [ T]he explicit relatively gives recogni from the new fee operations, their schedule tion, varying degrees, operations appropriately small cable were before privi- recipient” Court in that decision “value to money these defenses mentioned in 27. The collected under the 1970 fee Neither of brief, they placed “suspense been in a are therefore has Government’s Treasury 8(c). account” to allow the But we address at the Commis- waived. Cf. Fed.R.Civ.P. briefly deposit losing “without because were relied sion collections ac- issues purposes upon refusing cess to for such forms them refunds.” various FCC here, NAB 17. Because of the at issue see 50 Brief at existence refunds F.C.C.2d suspense (1975), prelitigation (1975), and the account “adequate pledge of to maintain rec- the FCC F.C.C.2d F.C.C.2d necessary, (1975) (laches?). make refunds if ords” order possibilities prejudice see note 24 any delay by petitioners (and delay there was the Government What alleged by slight. prejudice No such brief) alleges in its cannot be said to be none supra. Government here. note 24 unreasonable. required er held it was public inter- do. F.C.C.2d well as the leges granted, as 502, and indirect (1970); and the direct cost served est the (1970). Thus, to Government. to extent that this stan- the exceeded, is all of the assessments dard (1970). See also 23 F.C.C.2d by schedule are to some made the fee (1970). This state- F.C.C.2d in of taxes rather than extent the nature admits that the explicitly ment is It fees, and the entire schedule invalid.28 solely the on not base fee did this that the FCC recipient,” directly to as NCTA thereaft- follows from “value the Judge very thoughtful body opinion do not believe the filed con we that Tamm has curring questions quoted Supreme permit opinion which whether this the in- Court decisions goes attempting apply opinion too far to the clusion of such factors. When cost of recipient” “value to the by any court decisions on the is benefit conferred exceeded material also Our decision re amount, taxing standard of leased ciation, IOAA. immediately gets one into the today TelevisionAsso in National Cable fee. area and the result is revenue and not a FCC, U.S.App.D.C. -, Inc. v. it not The concurrence also states that does fully interprets more F.2d 1094 requiring proportion-of-cost “the read NCTAas recipient The concur “value to the standard.” only acceptable basis” as the method of deter- “ recognizes NCTA held that ‘value rence may mining well be fee. That be so. It recipient' . . the measure . [was] to possible proper may that a fee be fashioned on the authorized fee.” From this “narrow of interpretation,” lines. do other We not mean to circumscribe necessarily he states ingenuity agencies dealing of with the this applicability of other statuto eliminates problem. But still there remains the over- considerations, power ry and diminishes the of proceeds fairly requirement that the be re- all fees, equitable” agencies and he to set “fair proper to costs and that a nexus exist lated between the “attempt we to limit should not concludes further service, the cost of the service and recipient’ . ‘value to the as . . charged for the The must the fee service. including only and not also the value of costs or it bear some reasonable relation to cost regulatee.” on a benefits bestowed to be a fee and NCTA does indicate that ceases it opin- recognize which our the extent to We go beyond being a “fee.” cannot recipient” ap- interprets to as “value ion Limiting pro of to definitions value some plied to facts this case but we consider of cost, agency’s portion of the concurrence strictly controlling the two this follows observes, agency prevent the from would also Supreme do Court. We not decisions consider that becoming completely self-sustaining. con This range we limited the of that have it is but is a result foreseen clusion self-evident by phrase more than it is limited those by New in effect commanded NCTA and and England England specifically New Power decisions. stated that the decision by are those Power and we bound “greatly narrows the “greatly the Act.” narrow[] decisions which system of the ‘fee’ Act from the [boundaries] any change is U.S. at 1151. If 415 to made in this situation it must come S.Ct. away . from the domain of ‘taxes’ . .” and be (emphasis 415 U.S. at 94 S.Ct. at Congress Supreme In con or the Court. added); categorical language and NCTA in NCTA, it be noted that as nection part should also served, “public policy or rules that interest opinion, I. relied Art. basis its on facts,” pertinent any way other cannot be 8, par. 1 and 18 of the Constitution § § fee, in the 415 U.S. at reflected “ holding legislative that taxation is an essential to at and declares that ‘value Congress cannot “abdicate function that recipient’ is . . the measure . . . . NCTA, to 415 U.S. at transfer others.” S.Ct. at of the fee.” charges exceed their 1146. Once being cost cease attributable reasonable equitable” provision "fair As for the levied, by Congress, fees and become taxes IOAA, on the that is more a limitation the power This, hold, by agency. cases but prescribe stan- fees based other noted, however, prohibited. It also be should authority grant impose them. than a dards did not read Court decisions delegation power If it were the latter agencies recoup ability the attrib out the limitless; practically but as a limita- be would authorized “direct and indirect costs” utable operates pursu- promulgated it on all tion NCTA, 415 U.S. at 31 U.S.C. 483a. requires prescribed ant to the standards S.Ct. 1146. equitable inter them to be fair and sese. possible under NCTA As to whether suggesting that the “value benefits be- promulgate recipient” fee schedules “value to regulatee could be included the stowed” on costs, express initially no fee, related to we and that same would include factors be- opinion. “costs,” apparently have elsewhere discussed yond We concurrence is imposed go suggesting and other limitations far cost that the fee base could so as oyer-all Power, England IOAA and the New values licensees out of to include their created suggestion grants. the matter in the circular. The For the reasons outlined because, refund at is- The first arises improperly denied the orders held, above here, allow have our decision in these cases improper sue for it would is controlled principles established money illegally to retain the Commission NCTA. Supreme Court in The effect of the paid involuntarily under exacted NCTA decision at minimum was declare (in made protest many contemporane- cases (i. e., that, in the future after March light ously payment), especially 1974), fees under the A collected 10 A must refunding cable annual fees29 its action thus, principles; por- conform those some implied to do so in other pledges and its tion of the fees collected the FCC under cases.30 appropriate after its 1970 fee nonconforming 4, 1974, clearly March must be refunded. III. question The more difficult involves validity the issue re- With possible application retroactive peti- favor of fund denials resolved NCTA decision to the before March period tioners, is reme- remaining 4, is, 1974—that on principles before dy granted to be them this court. Since rely today which we had been announced. be on the impossible it would record before general long standing The rule of is ourselves,31 us to order refunds we re- will judicial precedents normally that have ret agency mand this case to the ac- such See, roactive as well as effect. prospective, so, however, doing tion. In we feel com- Walker, e. Linkletter g., 618, v. 381 U.S. present to the extent that pelled, record n.6, 1731, 622-23 & 14 85 L.Ed.2d 601 S.Ct. so, us to do to exact permits specify, the (1965), citing Co., v. Coal Kuhn Fairmont granted, of the to be so nature refunds as 140, 30 S.Ct. 54 L.Ed. 228 finally lengthy litigation. to terminate this (Holmes, J., (1910) IB dissenting); J. particular, questions In we address two ¶ Moore, Federal Practice 0.402[.3-2-l] (1) the parties: NCTA raised can be Note, Prospective Overruling and (1974); applied retroactively by this court so as to Application Retroactive the Federal paid allow refund before the date of Courts, (1962). 907 Yale L.J. Nonethe 4, (March 1974); (2) that decision what less, many occasionally state courts have portion paid is money to be refund- only prospective accorded their decisions ef theories,32 ed? fect under pow- various and their supra. agency be de novo 31. See note 3 should left to the action recipient” on “value to standard has al- ready already been The exhausted. has applied then-existing 32. Some cases have law had times and if several at bat the case were to opinion it is while in the announced same that be remanded for action further with our decid- changed subsequent the law will be as to cases. ing opinion, less than we this have do See, g., Ensign, e. Arizona Tax Comm’n v. adequately that not feel we would have dealt v, 376, (1943); Spanel Ariz. 257 P.2d 392 fairly presented by with the issues record this 621, Mounds View School Dist. No. 264 Minn. litigation go endlessly and the on could over (1962); Oil Sunburst & 118 N.W.2d 795 specific recognized items. It must be Refining Ry., Co. v. Northern Great Mont. present state of the law under the control- 927, aff'd, 7 P.2d U.S. ling Supreme rulings existing Court and the (1932). 77 L.Ed. 360 Other cases have statutes, agencies most could never become prior precedent outright, express overruled but completely self-sustaining regu- from “fees” of See, ly preserved existing rights e. thereunder. mandate, however, statutory latees. The McDannell, g., Ky. Hanks v. self-sustaining become “to the yet S.W.2d In another variation of possible.” extent 483a. full[est] U.S.C. § practice, some courts have on occasion It should also be stated we are re- theory,” employed applying a “reward a new calculations, quiring just ap- exact reasonable only prospectively except plain rule as to proximations. ability recoup The “di- both it, in the tiff case before who receives rect and indirect costs the Government” changed range benefit law as a for his reward does allow some latitude ef- expense challenging fecting effort and old doc reasonable attribution costs. See, g., v. Molitor Commu Kaneland trine. supra. 29. See note 9 nity Unit Dist. No. Ill.2d 163 N.E.2d denied, supra. note cert. U.S. 80 S.Ct. judicial decisions elaborate or by the United so has been affirmed er to do [ S]ome doctrine; in Great Northern articulated augment previously Court Supreme States Co., Refining & it. Whether v. Oil and some alter or reverse Railway Sunburst given 77 L.Ed. 360 ought decisions in be [these] has approved operation precedent Court also Supreme retroactive federal courts in technique be resolved problem ought use of Walker, 381 U.S. at Linkletter abstract as the philosophical absolute so 1731,33 approach theory. declaratory The im Blacksonian used, both infrequently, albeit has been pact application of retroactive new own court.34 our rule, litigants adminis both on whole, justice ought tration of as a be us, now case before the basic considerations. argues given that the effect Government Moore, (em- IB supra J. to that should be limited 10.402[3.-2-2] the NCTA decision thereafter, he phasis Shortly ex- law. Govt. change in the prospective of a upon this idea: pands this would 39-42. The effect of Brief at of any money refunds deny petitioners . . . have indicated con [ W]e 4,1974; refunds could be paid March before sistency justice of administration paid as to fees after that date ordered goal, pursued a desirable to be 1,1975, effective March date and before jus compelling absence of circumstances get fee schedule.35 To around of the 1975 Thus, unless tifying another result. has already fact that Commission unsound, ought it quite decision is not paid by opera cable refunded annual If normally to be overruled. over 4,1974, March the Government prior tors ruled, overruling ought decision theory” “reward requests employ us except for prospectively to be limited overruling, see note 31 prospective reasons, justifiable such as re compelling would be held to have whereby NCTA the old And if the upon liance rule. as to all changed only prospectively the law prospectively decision is limit overruling operators, who would persons except cable ed, to made exception ought be applica the benefit of retroactive receive as winning litigant, was done reward compensation tion of the new rule of Illinois in the Supreme Court they spent challeng effort the time and supra]. note 31 Molitor decision. [See Petitioners, of ing the 1970 fee schedule. represent progressive steps These three course, application favor a full retroactive consistency on evenness and inroads of NCTA. justice, and none the administration lightly; taken unevenness and should be prob- the best resolution Perhaps administering Moore, inconsistency law by Professor suggested lem has been in, and public confidence re- undermine who states: 955, 461, (1964); James v. United Parker v. Port Hu- (1960); 11 4 900 L.Ed.2d 440 L.Ed.2d Hospital, 1, (1960); 1052, States, ron Kojis 361 Mich. 105 N.W.2d 1 213, U.S. 81 6 L.Ed.2d 366 S.Ct. 367, Hospital, v. Doctor’s 12 Wis.2d 107 Dubuque, (1961); Gelpcke City v. 68 246 (1961). N.W.2d 131 (1863); Dooling 175, Wall.) (1 L.Ed. U.S. Overholser, 247, U.S.App.D.C. v. 243 F.2d accepted today appro 33. rule is that “[T]he (1957); Durham v. United 94 U.S. priate may in the interest the Court cases 228, justice prospective.” App.D.C. overruled the rule 381 U.S. at F.2d 862 make 628, Brawner, at 1737. The Court went grounds, United S.Ct. on other States v. “we observe that believe that Constitution 1, (en (1972) U.S.App.D.C. F.2d prohibits requires retrospective nor ef neither banc); Warring Colpoys, App.D.C. v. 1737. But see IB Id. at fect.” 85 S.Ct. at denied, cert. 122 F.2d 314 U.S. Moore, supra at Although 0.402[3.-2-1]. J. fl generally (1941). 86 L.Ed. 543 See case, Linkletter criminal Moore, supra ¶ J. at 0.402[3.-2-3]. IB irrelevant. found distinction 618, 85 at 1731. at See, England g., State Board Louisiana Examiners, of Medical adopted the rule time it for, judicial process it would spect of law itself. subject challenge court, to a there here; justifiable could be no reliance eliminated, (footnotes Id. at 10.402[3. 4]—2— indeed, the record demonstrates that there emphasis reason, was none.37 For the same and be- commentators, can we From the protests cause of the immediate and refund deciding criteria for distill four relevant requests by many petitioners,38 made prospective a decision to a whether to limit reject any idea that the Commission justifiable reliance (1) the extent of effect: would be unfairly surprised by our action rule; (2) the precedent or rejected upon today as well as the notion that petitioners’ rule; (3) announced newly purpose “transactions” had become final and should finality transac degree plaintiff’s not be disturbed.39 As for the tion; (4) surprise. purpose the element of Note, Moore, 0.402[3.-2-4]; supra IB J. rule announced in it was to H Prospec of Judicial Decision to Limitation prevent from collecting (1961); 46 Ia.L.Rev. Operation, tive money activities which it had no Note, of Decisions Prospective Operation statutory right charge. The same idea or Over Holding Statutes Unconstitutional prevent would retaining Decisions, 60 Harv.L.Rev. ruling Prior money illegally exacted. Note, The Effect of (1947); Overruled Therefore, we answer the first Overruling Intervening Decisions on in the affirmative: NCTA can and will be Transactions, 47 Harv.L.Rev. 1404-05 applied retroactively by this court to re- Note, Overruling (1934); Prospective quire petition- refund of fees collected from in the Federal Application Retroactive ers under the 1970 fee schedule to the ex- Courts, 71 Yale L.J. tent they legally permissible that exceeded consideration of these four criteria Careful The question amounts. which remains is inexorably leads to the conclusion portion what improperly the fees was ef should be accorded retroactive NCTA collected. fect. argue Petitioners that the 1970 fee sched- By important far the most consideration ule should be voided and fees refunded to justifiable is the re- of the four extent they the extent exceed the amount See, g., on the old rule. e. IB J. liance payable the 1966 fee They under schedule. Moore, at supra Since 10.402[3.-2-4]. contend the 1970 order was impression,36 was a case of first and NCTA “[s]ince from the since the FCC had notice almost both form and substance an amendment of “compre 15-16, appear 36. Since the 1970 fee schedule was a NAB Brief at and it does not schedule, hensive revision” of the fee distinguished the Commission has between the radically adopted Govt. Brief at and as protests long Some two. were made before the different from that earlier schedule both in con See, g., J.App. NCTA decision. 126-27. scope, cept and in would not Commission justified relying have been on the decision significant agen- It is that of the other three schedule, Aeronauti upheld the 1966 fee which imposed cies have annual fees under Radio, cal Inc. v. United 335 F.2d IOAA, entirety refunded them in their three all denied, (7th 1964), cert. Cir. following (No- NCTA. See Fed.Reg. 13 L.Ed.2d 559 11, 1974) (Atomic Energy vember Commis- sion); Hearings on Public Works for Water and supra. exception, fully in this case the other fee cases decided limited I concur With one excellently today.40 this court we have MacKinnon’s crafted Briefly, Judge recipient” eighty-one to the in these interpreted opinion “value for court specific cases, companion a and in the standard include number consolidated requirements. First, today, must decided Cities Capital cases also Communications, FCC, of a a Inc. v. Nos. the assessment fee clear justify Assn., FCC, attempt Cable Television National v. remand FCC should meet all 180 -, U.S.App.D.C. (1976); objections regardless F.2d 1094 we have raised Elec FCC, they appear. U.S.App.D.C. tronic Industries Assn. v. where -, Capital (1976); Cities F.2d 1109 action, taking asking Communications, are not FCC, U.S.App.D.C. Inc. v. engage rulemaking.” -, FCC “retroactive F.2d Reply procedures Brief at NAB 31-34. The summary limiting produce are new 41. This should not be read as on remand intended to no rule impose applicability obligation which would new to this case of involve parties; they merely principles will stated in the other cases decided additional calculate today. companion linchpin The of all these amount of the refund will effectuate which cases, statutory note a see is the definition of intent of the Cf. Addison IOAA. Co., particular Holly Although under Hill 322 U.S. valid fee the IOAA. procedure been Such a no characteristics such fee have dis- L.Ed. separate rulemaking” as facts “retroactive than the cussed cases their best more one issues, requested by petitioners. recalculating raise the its various fees al., U.S.App.D.C. -, service, license, may et F.2d be a privilege, publica- (decided 1976). My December sole tion or “similar of value or thing utility”4 how far reservation concerns this court for which the discrete cost basis may be go attempting should in these decisions incalculable. What for instance is the cost to define the content “value to the basis of or “license” which “privilege” recipient” Independent standard Of- the Act permits reimbursement? Act, 31 483a Appropriations fices U.S.C. § prohibits I am that NCTA not convinced (Supp.1975). Supreme Court’s decision developing a Commission from Assn., Television in National Cable Inc. v. schedule measure of “value through a United recipient” initially that is not related to (1974) (NCTA) 39 L.Ed.2d apparently Thus, example, its costs. Commis- phrase read this as “measure of the sion could determine for rulemaking fee” be charged by authorized each class of fees what factors best reflect federal under the Act. agency The Su- the value of to the regulatee that benefit preme interpretation Court’s narrow in and then calculate a fee based on those NCTA eliminates seemingly the other con- stands, however, criteria. As it now clearly siderations sanctioned the statu- court’s formulation of the statutory stan- tory language2 implied admonish- artificially dard all limits definitions of val- be ment that “read literally.”3 In ue to a cost basis that certain cases may light of this agen- substantial'diminution of largely hypothetical. cy setting discretion in “fair equitable” “value Any recip- limitation on the fees, I do not believe that we should now ient” standard of Act has far-reaching attempt to limit further the applicable stat- implications fee-setting for the authority of utory peremptorily standard by defining agencies federal regulatory general. “value to the as recipient” including only While I am not insensitive to the need the costs and also the value of the finally to end this extensive extended regulatee. benefits on a bestowed litigation, I believe that it is best left first course, Of as the court holds in these agencies proper to establish crite- cases, if chooses a cost basis ria for determining what constitutes “value approach, as the FCC did in its 1970 fee and, to the recipient” necessary, if ultimate- being challenged here and in Capi- ly to the courts in cases where the issue is Cities, tal be required should to identify clearly presented thoroughly briefed cost specific items of and demonstrate argued. how they are related to the benefits for I would remand these cases to the Com- the fee is assessed. As I read cognizable mission to determine standards however, that does not case dictate that the setting fees within framework of proportion-of-cost basis accepta- “value to the recipient” delimited ble determining method of a proper fee. and, NCTA once such standards have been a requirement Such would implicitly limit established, to calculate the refunds due. all definitions of value some proportion of the agency’s costs. It prevent would also becoming self-sustaining. simply

Some of its could costs not be direct-

ly related to benefits conferred on those

regulated, particularly where the benefit public 1. 415 recipient, policy 94 S.Ct. 39 L.Ed.2d value to the or inter- served, pertinent est and other facts . . . (Supp.1975). § U.S.C. 483a provides expressly 2. Section 483a that the fees 1146; 3. 415 U.S. at see id. must be J., (Marshall, dissenting). 94 S.Ct. 1146 equitable taking fair and into consideration Government, direct and cost indirect (Supp.1975). 4. 31 U.S.C. 483a See notes Development Energy Power and Atomic Com- days after the NCTA decision was 38. “Within Appropriations mission for Fiscal Year 1975 down, began to receive handed Commission Wor¡cs Appro- Before on Public Subcomm. demands, letters, requests, petitions, protests Comm, priations Appropria- of the Senate variety challenge and a of other forms of to the tions, Sess., Cong., pt. 93d 2d seeking it had collected since all fees (1974) (Federal Commission); Power they paid have the fees had refunded.” Govt. (No- Investment Advisors Act Release No. 486 (footnote eliminated). Although Brief at 25 14, 1975) (Securities Exchange vember requests payment, most refund were filed after Commission). parties protested payment, some at the time of schedule, invalidity particular statement or its service bene pre-existing fit standing prior expected rules con which it would leave reimburse. Schedule,” Second, Brief at it must calculate the cost basis for NAB taining (a) each fee assessed. This involves an allo (footnote eliminated), Williams v. citing specific expenses cation of the form Area Transit Washington Metropolitan Commission, cost basis for the to the smallest U.S.App.D.C. unit; practical (b) exclusion of ex n.100, 415 F.2d n.100 cert. penses independent incurred to serve an denied, interest; (c) public explanation public case, (1969). In the L.Ed.2d 773 Williams included in the cost specific expenses did order refund of transit fares this court fee, explana particular basis for a under an invalid fare structure to collected or tion to include ex of the criteria used fare pay the extent that exceeded the Finally, clude items. Com particular the previous able under fare structure. mission must set a fee calculated to return situation, however, The is distin present this reasonably cost basis at a rate which of the existence of guishable because con the cost performed reflects of the services mandate, IOAA, expressed in the gressional upon payor. value conferred become, agencies should government imposed only fees may be on beneficiaries fees, through appropriate the assessment who satisfy services criteria “self-sustaining possible.” to the full extent England of NCTA New Power.41 (1970) (emphasis 483a U.S.C. § interpretation It is of this mandate that our Having calculated a fee under proper should retain the maximum Commission these should re- guidelines, of the fees collected that would be portion portion money fund that which was under the permissible principles announced collected in excess thereof. We contem- Power, NCTA, England New general this plate that will be undertak- statute. Commission, ing involving all by the collected from the broadcasters under the is, we do proportion What this 1970 fee to those schedule and limited know; agen so remand case sums lawsuit.42 paid by parties to this proceed cy with instructions that initiate accordingly. Judgment ings to recalculate the 1970 fee schedule in recipient” “value to accordance TAMM, concurring; Judge, Circuit interpreted standard laid down in

Case Details

Case Name: National Association of Broadcasters v. Federal Communications Commission

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 16, 1976

Citation: 554 F.2d 1118

Docket Number: 75-1087

Court Abbreviation: D.C. Cir.