Office of Communication of the United Church of Christ v. Federal Communications Commission

*551 On Petitions for Rehearing or Clarification and Suggestions for Rehearing en bane

ORDER

PER CURIAM.

On consideration of the petitions filed herein by counsel for the Federal Communications Commission and intervenor, Lamar Life Broadcasting Company, for rehearing, for clarification of the Court’s opinion and of the suggestions for rehearing en banc, it is

Ordered by the Court, insofar as the aforesaid petitions are directed to the assigned division of this Court, that said petitions be denied, and it is

Further ordered by the Court en banc, there not being a majority of the judges of this circuit in favor of having this case reheard by the Court sitting en banc that the suggestions for en banc hearing are denied.

STATEMENT OF JUDGES McGOWAN AND TAMM ACCOMPANYING VOTE TO DENY THE PETITION OF THE FEDERAL COMMUNICATIONS COMMISSION FOR REHEARING BY THE PANEL OR EN BANC.

The essential conclusion of the division which heard this case was that the record compiled upon remand was, because of the misconceptions of the Trial Examiner, in no state to admit of an informed and reliable finding as to whether the renewal sought was in the public interest. Since the licensee has not in over six years established its right to continue to be entrusted with this valuable public asset, the opinion understandably expressed some impatience with this state of affairs, although it recognized that the ineptitude of the Commission was as much, if not more, to blame for this scandalous delay than was the licensee. For this reason, the division was not disposed to declare the licensee ineligible to seek new authority to use the channel. It did think that the licensee should compete for that authority, on even terms as nearly as may be, with any other applicant.

The Commission professes concern that the court has improperly arrogated to itself a decision which assertedly is committed only to the Commission, namely, the denial of the license renewal application because the licensee is not qualified under any circumstances, in terms of the public interest, to have the channel. Had that been the division’s purpose, it would not have contemplated that the licensee could be one of the competing applicants. What was held was that the proceedings on remand had been hopelessly bungled and that the public interest was best served by taking note of the early expiration date * and getting on with a new hearing in which the Commission can decide who is best qualified to have this channel. The Commission knows full well how to do this under its existing powers, without interruption of the present service if that is deemed important and on such terms as it thinks fit.

The Commission points to the provision of 47 U.S.C. § 307 (d) to the effect that, pending final disposition of a renewal application, the Commission “shall continue such license in effect.” It says that this means that the licensee seeking renewal must be regarded as having continuing authority until its application has been finally disposed of adversely to it — and this last, so it is said, only the Commission can do. It is doubtful if Congress intended that a licensee should be able to remain in possession indefinitely merely because the Commission proves unable or unwilling to conduct proceedings which will survive judicial scrutiny. A licensee holding over on any such basis is, at best, a licensee in name only, and it is presumably in such light that the licensee here involved will take its place among competing applicants.

The license grant under review terminates June 1, 1970, and proceedings to determine who should be the licensee for the term beginning on that date would have to get under way in ample time before that.