Appendix — Comuni-Centre Broadcasting, Inc. v. Federal Communications Commission

Supreme Court brief1989

Ask Donna

What actually matters in this document.

Text

| 88-1872 +1)

* M+

No.

In the

SUPREME COURT OF THE UNITED STATES

October Term 1988

COMUNI-CENTRE BROADCASTING, INC.,

Petitioner

FEDERAL COMMUNICATIONS COMMISSION,

Respondent

APPENDIX

PETITION FOR WRIT OF CERTIORARI

Julian P. Freret

Booth, Freret & Imlay

1920 N St., N. W., Suite 520

Washington, DC 20036

(202) 296-9100

Attorney for Petitioner

Roy F. Perkins, Jr.

1724 Whitewood Lane

Herndon, VA 22070

(703) 435-9700

Of counsel

APPENDIX

TABLE OF CONTENTS

Item No. Page

1. U. S. Court of Appeals Deci- A-1

cision, Sept. 16, 1988,

denying the appeal of Comuni-

Centre Broadcasting, Inc.

Order of the U. S. Court of A-25

Appeals denying rehearing

en banc, filed Nov. 18, 1988

Order of the U. S. Court of A-27

Appeals denying rehearing,

filed Nov. 18, 1988

Memorandum Opinion and Order A-29

of the Administrative Law

Judge dismissing the applica-

tion of Comuni-Centre Broad-

casting, Inc., released

Oct. 9, 1985

~Memorandum Opinion and Order A-37

the Review Board denying

Comuni-Centre Broadcasting,

Inc.'s appeal, released

Dec. 17, 1985

Order of the Federal Commun- A-50

ications Commission denying

Comuni-Centre Broadcasting,

Inc.'s application for review,

released Nov. 5, 1986

(continued )

Order of the General Counsel

of the Federal Communications

Commission dismissing Comuni-

Centre Broadcasting, Inc.'s

petition for reconsideration,

released June 16, 1987

Petition for Rehearing and

Suggestion for Rehearing

En Banc by the Court of Ap-

peals (denied by Items 2 and

3, supra).

A-59

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLOMBIA CIRCUIT

Argued March 17, 1988 =

Decided September 16, 1988

No. 87-1331

COMUNI-CENTRE BROADCASTING, INC.,

Appellant

FEDERAL COMMUNICATIONS COMMISSION

MIAMI 35, CORP.

MIAMI LATINO BROADCASTING CORPORATION

FIRST LATIN WOMEN BROADCASTING,

Intervenors

On Appeal from Orders of the

Federal Communications Commission

Roy F. Perkins, Jr., for appellant.

David Silberman, Counsel, Federal

Communications Commission, with whom prane

S. Killory, General Counsel, and Daniel M

Armstrong, Associate General TTT 8

Federal Communications Commission, were on

the brief, for appellee.

Thomas L. Root entered an appearance

for intervenor Miami 35 Corporation.

Howard A. Topel and Rachel D. Cramer

were on the brief, for intervenor Miami

Latino Broadcasting Corporation.

A-1

atin

Stephen Diaz Gavin entered an appear-

ance for intervenor First Latin Women

Broadcasting, Inc.

Before ROBINSON and D. dH. GINSBURG,

Circuit Judges, and KAUFMAN*, Senior

District Judge.

Opinion for the Court filed by

Circuit Judge ROBINSON.

ROBINSON, Circuit Judge: This appeal

arises out of a comparative proceeding

before the Federal Communications Commis-

sion for permit to construct a new televi-

sion station in Miami, Florida. The ap-

plication of appellant, Comuni-Centre

Broadcasting, Inc., was dismissed fol-

lowing its failure to file proposed

findings of fact and conclusions of law

within the time allotted by the hearing

officer. Perceiving no basis for holding

the dismissal improper, we affirm.

* Of the United States District Court

for the District of Maryland, sitting by

designation pursuant to 28 U.S.C. §294(d).

A-2

This proceeding initially involved 21

applicants, including Comuni-Centre. A

hearing, conducted in two phases by an

administrative law judge (ALJ), was con-

cluded on July 18, 1985, at which time the

ALJ directed all applicants to file pro-

posed findings of fact and conclusions of

law by September 4 following. On August

28, seven applicants, including Comuni-

Centre, with the consent of the remaining

parties, jointly moved for enlargement of

the filing period to September 18. The

motion was granted in part, and the time

for filing was extended to September 1l.

Aithough all other applicants served

their findings and conclusions on Septem-

ber 11, Comuni-Centre failed to do so.:

On September 17, a competing applicant,

l At that time, in addition to Comuni-

Centre, twelve other applicants re-

mained in the proceeding.

A-3

Range Communications, moved to dismiss

Comuni-Centre from the proceeding for

failure to prosecute. On September 23,

twelve days after the deadline, Comuni-

Centre tendered its proposed findings and

conclusions, together with a motion to

accept its late filing and an opposition

to Range's motion to dismiss.

By memorandum opinion and order, the

ALJ denied Comuni-Centre's motion and

dismissed its application with prejudice.”

The ALJ concluded that Comuni-Centre had

not shown good cause for failing to file

on time and had “prejudiced the rights of

other applicants by disrupting preparation

of reply findings". > Accordingly, Comuni-

Centre was held to have forfeited its

right to participate further in the

2 Cuban-American Ltd., F.C.C. 85M-3938

(Oct. 9, 1985) (memorandum opinion &

Order) Joint Appendix (J. App.) 364

[hereinafter ALJ Order].

3 Id. at 3, J. App. 366.

A-4

proceeding.

On appeal, the Review Board affirmed,

concluding that the presiding officer had

acted properly and within the scope of his

authority when he dismissed Comuni-

Centre's application. °

The Board agreed

that Comuni-Centre had not shown good

cause for its late proffer and, while

acknowledging the danger of applying the

"blunderbuss of dismissal" for procedural

deficiencies,

sensitivity to the administrative impera-

tives of complex multiparty proceedings

and to “the wages of a cavalier attitude

4 4,

5 Cuban-American Ltd., 102 F.C.C.2d

1238 (Rev. Bd. 1985) [hereinafter

Review Bd. Order].

6 Id. at 1241 (citing WADECO, Inc. v.

FCC, 202 U.S.App.D.C. eae, 233, 628

F.2d 122, 133 (1980) (dissenting

opinion) (warning against indiscrimi-

nate use of "blunderbuss of disquali-

Fication" in other than egregious

applicant-misconduct cases)).

toward the hearing process". / The Board

noted that the dismissal was not based on

an “inconsequential, trivial, or otherwise

excusable single [text as amended by the

Court's Order, in the nature of an er-

ratum, filed Sept. 21, 1988] lapse", but

rather was a response to Comuni-Centre's

"serious and prejudicial filing dilatori-

ness, which was several months in the

making and typical of a general intract-

ability in th[e] proceeding". 2

7 102 F.C.C.2d at 1241.

8 Id. (citing Jackson v. Washington

Monthl CoO., 186 U.S.App.D.C. 288,

569 F.2d 119 (1977) (reviewing

District Court's dismissal of civil

action)).

9 362 2.06.26 «et 1242. The Board

distinguished its decision from

another issued on the same day,

Horizon Community Broadcasters, Ltd.,

102 ¥.C.C.2a (Rev. Bd. 1985), in

which it reversed the dismissal of an

application where the proposed find-

ings were tendered only six days late

and were attributable to a computer

problem. In Horizon, no pattern of

intractable conduct was established,

and the ALJ had acted without waiting

A-6

Comuni-Centre's application for

review by the Commission was denied

10 tn a footnote to the

without opinion.

order, however, the Commission did reverse

the Board on one aspect of its decision.

The Board had concluded,?! as had the

ALJ, !2 that by filing late Comuni-Centre

had acquired an unfair opportunity to

review the timely-filed findings and

conclusions of the other applicants before

proffering its own. The Commission,

however, accepted the declarations of

Comuni-Centre's attorneys that they had

not availed themselves of this oppor-

for the applicant's response to the

dismissal motion.

10 Cuban-American bea... & Pe€.Ec Bee.

449 (1986) [hereinafter Commission

Order].

11 Review Bd. Order, supra note 5, 102

Toeetsae at 1241.

12 ALJ Order, supra note 2, at 3, J.

App. 366.

, 13 wee

tunity. Nevertheless, the Commission

considered this error to be harmless in

that it did not significantly undercut the

conclusion that acceptance of Comuni-

Centre's tardy presentation would have had

a disruptive effect on the proceeding. /4

A subsequent petition for recon-

Sideration was denied by the Commission on

the ground that it did not rely upon any

new fact or changed circumstance as

required by the Commission's rules.”

Comuni-Centre then appealed to this

court.!°

13 Commission Order, supra note 10, 1

F.C.C. Red. at 449 n. l.

14 Id.

15 Cuban-American Ltd., F.C.C. 871-062

(order) (June 16, 1987), J. App. 482;

see 47 C.F.R. §1.106(b) (1987)

(standards governing disposition of

Petitions for reconsideration). We

agree that these standards were not

met by Comuni-Centre's petition for

reconsideration.

16 This appeal is taken pursuant to 47

U.S.C. §402(b) (1982).

A-8

The Communications Act directs review

of Commission order and decisions in the

Manner prescribed. by Section 706 of the

Administrative Procedure Act (apa). ! Our

role, therefore, is to determine whether

the agency's action in this case was

“arbitrary, capricious, an abuse of dis-

cretion, or otherwise not in accordance

with law", [8

Comuni-Centre argues that it

showed good cause for the acceptance of

its belated filing and that dismissal of

its application was an inappropriate

exercise of discretion.

The Commission has adopted rules

dealing specifically with presentations of

proposed findings and conclusions by

parties to a proceeding. The presiding

officer has authority to determine whether

17 Id. §402(g).

18 5 U.S.C. §706(2)(a) (1982).

such proposals will be required and when

their filing will become due.

19 The rules

47 C.F.R. §1.263(a) (1987) provides:

Each party to the proceeding

may file proposed findings of

fact and conclusions, briefs, or

memoranda of law: Provided, how-

ever, That the presiding officer

May direct any party other than

Commission counsel to file pro-

posed findings of fact and con-

clusions, briefs, or memoranda

of law. Such proposed findings

of fact, conclusions, briefs,

and memoranda of law shall be

filed within 20 days after the

record is closed, unless addi-

tional time is allowed.

Delving into the legislative

history of the APA and the Attorney

General's Manual thereon, Comuni-

Centre posits that parties have an

"opportunity" to submit findings, but

may not be "required" to do so as a

precondition to receiving a decision

on the merits of an application.

Brief for Appellant at 22-27.

Comuni-Centre also argues that such a

requirement cannot lawfully be im-

posed without advance notice, "speci-

fically, notice before a party pro-

ceeds with the expense and effort of

Proceeding through a hearing". Id.

at 26-27 (emphasis in original). We

must note the wide latitude a judi-

cial or quasi-judicial officer has to

determine the best manner in which to

conduct proceedings such as those

involved here. See Salzer v. FCC,

250 U.S.App.D.C. 248, 252, 778 F.2d

A-10

( ”

; my

‘4

7 a—

a :

7 : ‘AW .2 Sareea “6

; ; oy Foy ana :

4 -2cCo° Saena

: x @ >

a V4 28 Mr “= J

a ih. aa ae - te VG

- ' ee ee eo ee sd he ee

De. Ga oie ee 208: a3) - ee

ee . Z Vai SS eS iF. tet ail.

* . Pile eae 7d Spey eens, fur

‘an ae 3 gs si i ee a ace 4s al

rie aie) et a 5 ae a Peis iste.) : Ale 8

See Wa oe ;

5 eal ie Dee er

a aacien © Went Ge = AG aaa)

ne,

Pe, Ae Pee

ie) TS it ee aaa eel

bs iin ai ene ign furs

ag a

provide explicitly that absent a showing

of good cause for failure to meet a filing

deadline, an untimely submission of a pro-

posal may be treated as a waiver of the

right to further participation in the pro-

ceeding,

20 re

and as ground for dismissa

869, 873 (1985). There is nothing

either in the APA or the Communica-

tions Act that prohibits a presiding

officer from requiring all parties to

Submit proposed findings of fact and

conclusions of law. Indeed, the

Communications Act provides that

"“[t]he Commission may conduct its

proceedings in such manner as will

best conduce to the proper dispatch

of business and to the ends of jus-

tice". 47 U.S.C. §154(j) (1982).

Nor do we see how Comuni-Centre can

claim lack of notice when the specter

of dismissal is plainly evident in

the Commission's rule. See note 20

infra. Moreover, it appears that

these arguments were not addressed to

the agency and therefore are not

available for our consideration. See

Washington Ass'n for Television &

Children v. FCC, 229 U.S.App.D.c.

363, 366-367, 712 F.2d 677, 680-681

(1983).

"In the absence of a showing of good

cause therefor, the failure to file

Proposed findings of fact, conclu-

sions, briefs, or memoranda of law,

when directed to do so, may be deemed

A-11

In reviewing the dismissal of an

applicant from a comparative proceeding,

we think it clear that among the factors

appropriate for consideration are the

applicant's proffered justification for

the failure to comply with the presiding

officer's order, the prejudice suffered by

other parties, the burden placed on the

administrative system, and the need to

punish abuse of the system and to deter

future misconduct. ~“ We bear these

a waiver of the right to participate

further in the proceeding". 47

C.F.R. §1.263(c) (1987).

21 "Failure to prosecute an application,

or failure to respond to official

correspondence or request for addi-

tional information, will be cause for

dismissal. . PA {[S]uch dismissal

will be without prejudice where an

application has not yet been desig-

nated for hearing, but may be made

with prejudice after designation for

hearing". Id. §73.3568(b).

22 Cf. Shea v. Donohoe Constr. Co., 254

U.S.App.D.C. 175, 178, 795 F.2d 1071,

1074 (1986) (discussing factors in-

fluencing propriety of dismissal of

A-12

criteria in mind as we proceed to examine

the grounds assigned by the agency for

dismissing Comuni-Centre's application.

We note at the outset that Communi-

Centre's filing, which was twelve days

late, exceeded by five days the deadline

which it and others proposed to the Com-

mission. Moreover, even after it had

become apparent that Comuni-Centre would

not file on time, no further request for

an extension was made, nor was the presid-

ing officer alerted to the fact that the

filing would be late.

Comuni-Centre argues that it was not

afforded a reasonable opportunity to

prepare its findings and conclusions in

light of the voluminous record in this

case and the 55-day period between the

conclusion of the hearing and the final

civil action when plaintiff is un-

aware of attorney's neglect).

A-13

deadline. *> It complains of competing

work priorities and the fact that its

representative is a two-lawyer firm. The

Review Board found these justifications

insufficient, particularly in the absence

of any explanation why additional staff

was not enlisted or priorities rear-

ranged. 24 Furthermore, all other parties

to the proceeding - some of which were

also served by small law firms and many of

which, it is fair to assume, labored under

competing professional obligations-

submitted their proposals within the time

allotted. We note also that at the

culmination of the initial phase of the

hearing on June 25, 1985, when ninety

percent of the proceedings had been

23 The preparation time actually allowed

was 35 days longer that the 20-day

allotment granted by the Commission's

rules. See 47 C.F.R. §1.263(a)

(1987), quoted supra note 19.

24 Review Bd. Order supra note 5, 102

F.C.C.2d at 1240.

A-14

concluded, the ALJ warned the parties to

begin work on their findings and conclu-

sions immediately instead of waiting until

the hearing ended in July.*° In spite of

that warning, Comuni-Centre did not com-

mence preparation until August 21, only

two weeks before the original due date.

In addition, the Review Board con-

27 that Comuni-

cluded,*© as had the ALJ,

Centre's tardiness disrupted other appli-

cants' preparation of reply findings.

Comuni-Centre attempts to dispute this

point by taking exception to an opponent's

25 The ALJ stated: "But here - now hear

this, do not believe that you have

all kinds of time to prepare a set of

findings, because when those - when

phase two or even if there is a brief

phase three is over, time will have

run considerably on you". Transcript

+ vasa at 4037-4038, J. App. 144-

26 Review Bd. Order, supra note 5, 102

F.C.C.2d at 1241.

27 ALJ Order, supra note 2, at 3,

J. App. 366.

‘ A-15

assertion that none of the other parties’

reply findings responded to the proposals

tendered late by Comuni-Centre. Although

it appears that several parties did refer,

at least cursorily, to Comuni-Centre's

overdue submission in their replies, it is

conceded that at least four parties did

not. Two applicants did not mention

Comuni-Centre's findings in their replies

at all, and two more chose not to reply t°

Comuni-Centre because its application was

subject to dismissal. Furthermore, even

those that did respond could well have

been prejudiced by the abbreviated time

Period for analysis and preparation that

was caused by Comuni-Centre's tardiness.

Upon examination, therefore, it becomes

clear that Comuni-Centre is, in effect,

disputing the extent of the disruption,

not the fact that some disruption occured.

Because of possible prejudice to

other applicants, the Review Board stated

;

| A-16

that were it to accept the late

submission, it would “feel obliged to set

a special reply date to overcome this

disruption, which would, in turn, create

further disruption". 7° This interference

with normal processing brings to light a

significant difference between a compara-

tive proceeding in the administrative

realm, like the one involved here, and a

bipolar civil action in a district court.

Unlike the latter, which is concerned with

adjudication of the private rights of

litigants, a comparative licensing case

has the interest of the public as its

focus. That interest is furthered by

expeditious selection of a qualified

applicant, who will serve the public by

Operating the broadcast facility involved.

This concern for. the public interest

therefore informs our consideration of the

28 Review Bd. Order, supra note 5, 102

F.C.C.2d at 1241. :

, | A-17

ea AS eS ere Sie oe

f ‘ i, owt Cee5ale Pensaey: J

) .o0

; : ot ods

as , a! a a) See _ fp ae be ° ee As ¥

ltteer Set Saas bee

I * ee Ss b ra is

— 74 ee ss

. ’ ' rey ’ ware bin ans -_

7 ‘ 7 MD im

, oh

1 ; |

. -/ ¢ q = Abs # ae

cf aL a s a

' ; ; é

= : ~ 0, +> 4 ;

ri. oO ; ;

he - (247 4.77

a) -

disruption visited upon the agency by an

applicant's delay.*?

The Review Board stressed that

Comuni-Centre's dismissal was the

consequence of a pattern of casual and

dilatory conduct, not the result of

"inconsequential, trivial or otherwise

excusable single lapse". °° Similarly, the

ALJ had stated that he had been “overly

indulgent with Comuni-Centre and [had]

bent over backwards to accomodate Comuni-

Centre's trial tactics", which he charac-

29° "Congress clearly recognized that

sound regulation has procedural as

well as substantive elements, and

that the ‘public interest, conven-

ience, and necessity' comprehends

both. Orderliness, expedition, and

finality in the adjudicating process

are appropriate weights in the scale,

as reflecting a public policy which

has authentic claims of its own”.

Valley Telecasting Co. v. FCC, 118

U.S.App.D.C. 410, 413, 336 F.2d 914,

917 (1964).

30 Review Bd. Order, supra note 5, 102

F.C.C.2d at 1241.

A-18

terized as dilatory. Thus, at both

levels, the dismissal was bottomed, not on

any single incident, but rather on a

pattern of procrastination; and in that

respect the treatment concentrated on a

factor deemed aimost indispensable to

parallel dismissals in the judicial

context. >

As just one example of Comuni-

Centre's dilatory conduct, the ALJ cited

its handling of an air hazard clearance

awarded by the Federal Aviation Admin-

istration. The clearance was issued on

September 9, but Comuni-Centre did not

present it to the Commission until Sep-

tember 23, and even then without explana-

31 ALJ Order, supra note 2, at 2 n.2, J.

App. 365.

32 See Link v. Wabash R. R., 370 U.S.

626, 633-634 & n. ll, 82 S.Ct. 1386,

1390-1391 & n. 11, 8 L.Ed.2d 734, 740

& n. ll (1962); Jackson v. Washington

Monthly Co., supra note 8, 186

U.S.App.D.C. at 290, 569 F.2d at 121.

A-19

tion for the delay. Moreover, the form in

which it was submitted - through a request

for official notice - did not conform to

the three-step procedure required by the

ALJ: petitioning to reopen the record,

acceptance of the clearance into evidence,

and reclosing of the record. The ALJ

commented:

Long after this record was closed

(July 18, 1985), reopened and re-

closed, and after the other appli-

cants had filed their proposed

findings on the air hazard issue

(September 11, 1985), Comuni-Centre

proffers an air hazard clearance.

And even then it failed to properly

proffer that clearance. No adjudi-

catory proceedings, especially one

this large, can be run under such

circumstances. 33

To further bolster the conclusion

that Comuni-Centre has been lax throughour

this proceeding, the ALJ cited numerous

occasions upon which its lateness had

necessitated acceptance of untimely

33 ALJ Order, supra note 2, at 3, J.

App. 366 (citations and footnote

omitted).

: A-20 |

notices of depositions, motions to

produce, petitions to enlarge issues,

‘

oppositions to the petitions of other

parties, and replies to oppositions.~~

Though Comuni-Centre argues that in

several instances the filings were only

One day tardy, °° they nonetheless neces-

sitated consideration and responsive

action by the ALJ as well as by the

remaining parties.

It is clear that Comuni-Centre had

ample advance warning that late filing of

its proposed findings of fact and conclu-

sions of law might become cause for its

dismissal from the proceeding. °° At the

conclusion of the hearing, the following

colloquy ensued between the ALJ and

34 Id. at 2 n.2, J. App. 365.

35 Reply Brief for Appellant at 2.

36 We do not mean to imply that aware-

ness of a possible consequence

of an untimely filing need be that

specific.

A-21

Comuni-Centre's attorney:

[Counsel]: Well, Your Honor, could I

ask you a question. You are directing

every applicant to file findings?

[Judge]: I am so directing every -

applicant to file the findings that I have

previously described.

[Counsel]: With the consequences

which follow for failure to file.

[Judge]: 1.263(c). >!

The ALJ's last response was a direct

reference to the Commission's regulation

providing that failure to submit such

proposals when ordered to do so, "may be

deemed a waiver of the right to partici-

pate further in the proceeding". °° We

think it clear that a direction to file is

a command to file on time. >” In spite of

37 ALJ Order, supra note 2, at 2, J.

App. 365.

38 47 C.F.R. §1.263(c)-(1987), quoted

Supra note 20.

39 As we have heretofore observed, the

Commission's rules also provide for

dismissal as a consequence of an

applicant's failure to prosecute or

to respond to a request for informa-

A-22

this admonition, however, Comuni-Centre

missed the deadline without either seeking

a further extension or notifying the ALJ

that its filing would be late. 7°

In addition to this pattern of dila-

tory conduct, there is more than enough

indication that Comuni-Centre's course of

tardy activity had interfered with the

orderly conduct of the proceeding and that

Other parties were prejudiced or would

tion. Id. §73.3568(b), quoted supra

note 21.

40 The Review Board acknowledged that in

some cases sanctions less severe than

dismissal might be appropriate, par-

ticularly when dismissal would penal-

ize clients unaware of the laxity of

their attorneys. Cf. Shea v. Donohoe

Const. Co., supra note 22, 254

U.S.App.D.C. at 83, 793 .2@ at

1078. The Review Board stated, how-

ever, “we do not believe that Comuni-

Centre may properly escape respons-

ibility for its counsel's dilatori-

ness, since the filing deadline and

prior litigation history were known

(or should have been known) by the

applicant's principals as well as its

counsel". Rev. Bd. Order, supra note

S, 162 ¥.C.C.46 at 1262 8.4.

A-23

have been in the absence of special steps

to overcome the disruption. In turn, the

ALJ, the Review Board, and the Commission

itself saw insufficient justification in

Comuni-Centre's attribution of these dif-

ficulties to its overextended workload,

and we cannot say that they were wrong.

Nor, in the light of the full circum-

stances, can we conclude that the agency's

dismissal of Comuni-Centre from the

comparative proceeding was improper. The

order under review is accordingly

Affirmed.

A-24

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 87-1331 September Term, 1988

Comuni-Centre Broadcasting, Inc.,

Appellant

Federal Communications Commission,

Appellee

BEFORE: Wald, Chief Judge; Robinson,

Mikva, Edwards, Ruth B. Ginsburg,

Starr, Silberman, Buckley, Williams.

D. H. Ginsburg and Sentelle, Circuit

Judges.

ORDER

Appellant's Suggestion for Rehearing

En Bank has been circulated to the full

court. No member of the Court requested

the taking of a vote thereon. Upon con-

Sideration of the foregoing it is

ORDERED, by the Court en banc, that

the suggestion is denied.

A-25

FOR THE COURT:

CONSTANCE L. DUPRE,

CLERK

By: s/Robert A.Bonner

Robert A. Bonner

Deputy Clerk

A-26

ie oy

pig's |

eee

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 87-1331 September Term, 1988

Comuni-Centre Broadcasting, Inc.,

Appellant

Vv.

Federal Communications Commission,

Appellee

BEFORE: Robinson, and D. 4d. Ginsburg,

Circuit Judges and Kaufman* U. S.

Senior Judge for the District of

Maryland

ORDER

Upon consideration of appellant's

petition for rehearing filed October 3l,

1988, it is

ORDERED, by the Court, that the

petition is denied.

A-27

Zs:

FOR THE COURT:

| CONSTANCE L. DUPREE,

CLERK

By: s/Robert A. Bonner

Robert A. Bonner

Deputy Clerk

* Sitting in pons gEatsen pursuant to 28

U.S.C. §294(d)

A-28

7 |, ag | OP

ne ie el dle wah ee

FCC 85M-3938

Before the

Pederal Communications Commission

Washington, D. C. 20554

In re Applications of ) MM Docket No.

) 85-27

CUBAN-AMERICAN LIMITED )

* * * *

For Construction Permit for a New

Television Station on Channel 35

Miami, Florida

_ MEMORANDUM OPINION AND ORDER

Issued: October 7, 1985

Released: October 9, 1985

is This is a ruling on three inter-

related pleadings. The first is Range's

Motion to Dismiss Comuni-Centre Broadcast-

ing's application filed on September 23,

1985. Comuni-Centre opposed Range's

Motion on peiaiiiee 23, 1985, but Spanish

Broadcasting and Grace Broadcasting sup-

ported it on September 24, 1985, and Lamar

Communications supported it on October l,

1985.

A-29

2. The second pleading is a Motion

to Accept Proposed Findings of Fact and

Conclusions of Law that Comuni-Centre

filed on September 23, 1985. Range and

Grace opposed the Motion the following

day, Minority Broadcasting opposed it on

September 25, 1985, and Miami

Broadcasting, Inc. (MBI) opposed it on

September 27, 1985.

3. The third pleading is a Request

for Official Notice that Comuni-Centre

filked on septeaver 23, 1985. Grace

BHroadcasting opposed that Request on

September 24, 1985, and Range opposed it

on September 26, 1985.

4. These three pleadings present a

common questign: Should Comuni-Centre's

application be dismissed for failing to

tmely file Proposed Findings of Fact when

directed to do so, or has it shown good

cause for its late-filing as required by

47 C.F.R. 1.263(c)?

A-30

Background

Se Thirteen applicants remain in

this TV proceeding. They seek authority

to construct a new TV station on Channel

35 in Miami, Florida. A trial type

hearing was conducted in June and July,

1985. At its conclusion the Presiding

Officer directed all parties to file

proposed findings of fact and conclusions

of law on or before September 4, 1985 (Tr.

4557-4566).°

6. Comuni-Centre understood those

instructions. In fact at Tr. 4559,

Comunbi-Centre's counsel engaged the

Presiding Officer as follows:

Mr. Perkins: Well, your Honor,

could I,ask you a question. You

are directing every applicant to

file findings?

Judge Miller: I am so directing

every applicant to file the

findings that I have previously

described.

1 See FCC 85M-2929 released July 24,

1985.

A-31

aaa aes

Mr. Perkins: With the con-

sequences which follow for

failure to file.

Judge Miller: 1.263(c).¢

Te Subsequently, the initial

deadline for filing proposed findings was

extended for good cause from September 4th

to September llth, 1985. All the appli-

cants except Comuni-Centre and Miami 35

met the September 11, 1985 due date.

Miami 35 served its proposed findings on

the other parties on September 11 and

officially filed them one day late. Miami

2 Range correctly notes that throughout

this proceeding the Presiding Officer

weas overly indulgent with Comuni-

Centre and bent over backwards to

‘accomodate Comuni-Centre's trial

tactics (see FCC 85M-1283, released

March 24, 1985; FCC 85M-1284,

released March 27, 1985; FCC 85M-

1443, released April 4, 1985; FCC

85M-1447, released April 4, 1985; FCC

85M-1629, released April 15, 1985;

FCC 85M-1886, released April 26,

1985; and FCC 85M-1917, released

April 29, 1985; also see Tr. 954,

959, 963, 982-984, 993-994, 1503,

2017-2021, 2036-2037, 2058, 2066-

2070, 2648-2650 and 3202-3209).

A-32

35's brief tardiness was excused since it

was apparent that it hadn't had an unfair

Opportunity to review the timely filings

of the other eleven applicants. See FCC

85M-3645, released September 17, 1985.

8. But Comuni-Centre neither served

nor filed its proposed findings on the due

date. Nor did it request leave to extend

the filing poeriod. Nor did it even

Signal that it wasn't going to file them

timely. Instead twelve days later, it

Filed a set of Proposed Findings of Fact

along with still another Motion to Accept

(See Footnote 2 supra.).

Rulings

9. Comuni-Centre's Motion to Accept

will be denied; and Range's motion to

dismiss will be granted. All the appli-

cants except Comuni-Centre met their

filing deadline. Comuni-Centre, by filing

late, has had an unfair opportunity to

review the timely filings of the other

A-33

MS ee

twelve applicants. Moreover, by filing

twelve days later, Comuni-Centre effec-

tively disrupted the other applicants'

preparation of their Reply Findings. In

brief, Comuni-Centre hasn't shown good

cause for failing to file its proposed

findings in a timely fashion, has preju-

diced the rights of the other applicants

and has waived its right to participate

further in the proceeding. Its applica-

tion will therefore be dismissed. See

James E. Reese, 45 FCC 2d 315, 320-321

(Rev. Bd. 1974), rev. denied, FCC 74-634

released June 19, 1974; and Wolverine

Radio Co., Inc., 49 FCC 2d 1038, 1039

(Rev. Bd. 1974).

10. Illustrative of Comuni-Centre's

dilatory tactics is the September 23, 1985

Request for Official Notice. Long after

this record was closed (July 18, 1985),

reopened and reclosed (FCC 85M-3319, re-

leased August 27, 1985), and after the

A-34

other applicants has filed their proposed

Findings on the air hazard issue (Septem-

ber 11, 1985), Comuni-Centre proffers an

air. hazard clearance. And even then it

failed to properly proffer that clearance

(Tr. 14-15, 4354-4356, and 4552-4553). °

No adjudicatory proceeding, especially

One this large, can be run under such

Be 4

conditions.

3 Five other applicants complied with

the Presiding Officer's directions

regarding the air hazard issue; i. e.,

First Latin Women Broadcasting, Miami

Latino Broadcasting Corp., Minority

Broadcasting Corporation, Range and

Grace. See FCC 85M-2343, released

June 4, 1985; FCC 85M-2386, released

June 7, 1985; FCC 85M-3047, released

August 6, 1985; FCC 85M-3184, released

August 15, 1985; and FCC 85M-3319,

released August 27, 1985.

4 "Congress clearly recognized that

sound regulation has procedural as

well as substantive elements, and that

‘the public interest, convenience, and

necessity’ comprehends both. Order-

liness, expedition, and finality in

the adjudicative process are appro-

priate weights in the scale as re-

flecting a public policy which has

authentic claims of its own". See

Valley Telecasting Co. v. FCC, 118

A-35

SO the Motion to Accept Proposed

Findings of Fact and Conclusions of Law

that Comuni-Centre Broadcasting filed on

September 23, 1985, IS DENIED;

The Request for Official Notice that

Comuni-Centre proffered on September 23,

1985, IS REJECTED;

The Motion to Dismiss that Range

Communications, Limited Partnership filed

on September 17, 1985, IS GRANTED; and

Comuni-Centre Broadcasting, Inc.'s

application (BPCT-840921KQ) IS DISMISSED

with prejudice.

FEDERAL COMMUNICATIONS

COMMISSION

s/ Walter C. Miller

/ Walter C. Miller

Administrative Law Judge

U.S.App.D.C. 410, 336 F.2d 914 (1964).

A-36

FCC 85R-99

Before the

Federal Communications Commission

Washington, D. C. 20554

In re Applications of

CUBAN-AMERICAN LIMITED

et al.

MM Docket No.

85-27

For Construction Permit

For a New Television

Station on Channel 35

Miami, Florida

me eee ee ee ee ee ee

MEMORANDUM OPINION AND ORDER

Adopted: December 11, 1985;

Released: December 17, 1985

By the Review Board:

l. The Review Board has under

consideration an appeal filed October 29,

1985 (and sypplemented on October 30,

1985) by Comuni-Centre Broadcasting, Inc.

(Comuni-Centre) from a Memorandum Opinion

and Order released October 8, 1985 (FCC

85M-3938) by presiding Administrative Law

Judge (ALJ) Walter C. Miller. That ruling

A-37

dismissed Comuni-Centre's application with

prejudice for failing to show good cause,

pursuant to Section 1.263(c) of the

Commission's Rules, 47 C.F.R. 1.263(c),

for filing its proposed findings of fact

and conclusions of law 12 days after the

mandated deadline. The ALJ concluded that

Comuni-Centre's "dilatory tactics" were

typical of its conduct throughout the

proceeding, that the delay had prejudiced

the rights of the 12 other applicants who

timely filed, and that it would be deemed

a waiver of Comuni-Centre's right to

participate further, citing James &£.

Reese, 45 FCC 2d 315, 29 RR 2d 903 (Rev.

Bd.), rev. denied, FCC 74-634 (Comm'n

1974). FCC g5M-3938, supra, at paras. 9,

10 and n. 2. Oppositions to the appeal

have been filed by competing tiene

Range Communications, Limited Partnership;

Minority Broadcasting Corporation, Inc.;

Lamar Communications, Inc.; First Latin

A-38

aia ane

Women Broadcasting, Inc.; Miami Broadcast-

ing, Inc.; and Grace Broadcasting Network,

Inc. We affirm the dismissal of Ceaunt<

Centre's application.

2. Comuni-Centre's appeal presents

two questions -- whether the ALJ acted

within the scope of his authority under

Section 1.263(a) of the Rules, 47 CFR

1.263(a), in setting September 11, 1985 as

the filing deadline for proposed findings

herein, and whether he properly exercised _

that authority when he denied Comuni-

Centre's September 23, 1985 motion to

accept its late-filed findings and dis-

missed its application. As to the filing

date, Comuni-Centre strenuously argues

that the <i Mees allowed between July 18,

1985 -- the last day of hearing and the

day that the record was closed -- and

September 11 did not, as a matter of law,

constitute the "reasonable opportunity" to

submit proposed findings envisioned by

A-39

Section 8(b) of the Administrative Pro-

cedure Act of 1946, 5 U.S.C. 557(c). In

Support, it presents a study of 80 FCC

adjudications over the last two years, in

only 28 of which findings were required to

be filed in 55 days or less after the

close of the record, and points out that

all of those cases had much shorter tran-

script records (27-1346 pages versus the

4325 pages in the instant case). Comuni-

Centre asserts that, given its mammoth

task, the 67 days it took to submit its

findings were reasonable per se.

3° We reject Comuni-Centre's lesson

in legal mathematics. The most telling

Statistic, which it did not emphasize, is

that, regardiess of how arduous the task,

all 12 of its opponents managed to meet

the September 11 deadline. We further

note that the September 11 date itself

represented an extension of time from a

previous September 4 deadline; that the

A-40

extension request, granted in part by

Order, FCC 85M-3409, released August 30,

1985, was initiated by Comuni-Centre,

which actually petitioned for a September

18 filing date; and that Comuni-Centre

even missed that self-imposed deadline by

five days. Finally, we observe that

Section 1.263(a) of the Rules establishes

20 days after the record is closed as the

standard filing time for proposed findings

in Commission proceedings “unless addi-

tional time is allowed". Id. Here 35

additional days were given. Moreover, the

ALJ had alerted all parties as early as

June 25, 1985 about the need to begin

working on their findings then and not to

wait until tHe hearing ended in July. Tr.

4038. Indeed, more than 90% of the hear-

ing transcript had transpired by that

date. Yet Comuni-Centre counsel coments

that it did not commence work on the

findings until August 21, 1985, only two

A-41

weeks before the original due date. It's

no wonder that counsel felt obliged to

seek a two-week extension (see above) on

August 28. Under such circumstances, we

are unable to conclude as a matter of law

that the September 11 filing deadline was

unreasonably short.

. 4. Comuni-Centre urges, in the

alternative, that even if the September 11

date was théoretically adequate, the ALJ

erred in holding that Comuni-Centre lacked

good cause for its 12-day filing delay.

We have carefully reviewed the showing

proffered by Comuni-Centre in its Septem-

ber 23, 1985 motion to accept its findings

and affirm the ALJ's conclusion that

Comuni-Ceatre failed to show good cause

for its dilatoriness under the applicable

"special circumstances" standard. See

James E. Reese, supra (10-day-late find-

ings rejected where special circumstances

not present); Joseph M. Ripley, Inc., 18

A-42

roe

RR 217, 222 and 18 RR 363 (1959) (lengthy

illness of counsel during findings pre-

paration period was not special circum-

stances). Comuni-Centre's motion vaguely

details a number of work priority reasons

why counsel could not begin preparation of

the subject findings until August 21,

1985, but leaves unanswered why addi-

tional staff was not enlisted or priori-

ties otherwise arranged. In addition, no

explanation is offered for counsel's fail-

ure to keep the ALJ aporised about its

work efforts as the September 11 deadline

approached and passed; no further exten-

sion was requested, and counsel did not

even meet its September 18 self-imposed

filing aii (see paragraph 3, supra).

Finally, we agree with the ALJ that

Comuni-Centre's Stnat touts filing delay

gave it an unfair opportunity to review

the timely filings of its 12 opponents and

disrupted its opponents preparation of

A-43

OO aE eee

reply findings. Contrary to Comuni-

Centre's rejoinder, what concerned the ALJ

(and us) is not the possibility that

Comuni-Centre might adopt the findings or

conclusions of others, but rather that it

had an unauthorized extra opportunity to

rebut its opponents’ arguments when

fashioning its original findings and con-

clusions, as well as in preparing its

reply findings and conclusions. As to

disrupting the reply process, we note

Minority Broadcasting Corporation's

assertion that no applicants addressed

Comuni-Centre's findings in their replies,

even though those findings had not yet

been sepeete by the ALJ when replies were

due on October 3, 1985. Thus, although

its opponents technically had ten days to

address Comuni-Centre's findings, the

apparent absence of any replies (a most

unusual event) certainly implies that

Comuni-Centre's tardiness indeed had a

A-44

confusing and disruptive effect on this

proceeding. Were we to accept Comuni-

Centre's findings now, we would feel

obliged to set a special reply date to

Overcome this disruption, which would, in

turn, create further disruption.

3s We are cognizant of the dangers

in applying the “blunderbuss" of dismissal

On account of procedural deficiencies. :

However, we must also be sensitive to the

administrative imperatives of multi-party

proceedings, such as the instant case, and

to the wages of a cavalier attitude toward

the hearing process. In Community Coali-

tion for Media Change, 646 F.2d 613, 616

aa6' hi: 3 COLE &SEGs 19060), wae Court

Criticized the appellant's "ultra-casual

1 See WADECO, Inc. v. FCC, 628 F.2d

122, 133 (D.C.Cir. 1980) (Dissenting

Opinion of Mikva, J. inveighing

against indiscriminate use of

"blunderbuss of disqualification" in

other than egregious applicant mis-

conduct cases).

A-45

method of proceeding co gee [which]

impedes the just, speedy, and inexpensive

disposition of judicial business" and

Opined that dismissal of the appeal might

have been appropriate because of the

"conspicious disregard . ° shown for

case-processing rules". There, as here,

petitioner failed to file its pleadings

within the extended time allowed by the

tribunal and ultimately responded only in

the wake of a motion to dismiss. . And

there, as here, a pattern of casual and

dilatory conduct was noted by the

tribunal. Thus, our action herein is not

based on the type of inconsequential,

trivial, or oherwise excusable single

lapse toward which the Court noted dis-

2 In the instant case, the ALJ's dis-

missal of Comuni-Centre's application

was partially in response to Range

Communications’ September 17 motion

to dismiss. This motion apparently

triggered the September 23 filing of

Comuni-Centre's findings as well as

its opposition to the motion.

A-46

approval of the drastic remedy of dismiss-

al in Jackson v. Washington Monthly Co.,

569 F.2d 119 (D.C.Cir. 1977). We commend

the ALJ for his expert and expeditious

handling of this complex proceeding, also

see Mobilfone Communications, 95 FCC2d

668, 673 n. 4 (Rev. Bd. 1983), rev.

denied, FCC 84-610 (Comm'n 1984), aff'd

per curiam, No. 85-1005 (D.C.Cir. November

29, 1985), and hold that Comuni-Centre's

serious and prejudicial filing dilatori-

ness, which was several months in the

making and typical of a general intract-

ability in this proceeding, has caused it

to forfeit its right to participate

further. ° James E. Reese, supra.’

3 We distinguish this decision from our

companion action in Horizon Communit;

Broadcasters, Ltd., FCC 85R-100, also

released today, in which we reversed

the dismissal of an application where

the belated proposed findings were

submitted only six days late, alleg-

edly due to a substantial computer

malfunction, no pattern of intract-

able conduct was established, and the

A-47

CO —————

6. ACCORDINGLY, IT IS ORDERED, That

the Appeal From Ruling @ismissing Applica-

tion with Prejudice, filed by Comuni-

Centre Broadcasting, Inc. on October 29,

1985 and supplemented on October 30, 1985,

IS DENIED.

ALJ acted without waiting for the

applicant's response to the dismissal

motion. |

a In Community Coalition for Media

Change, supra, at 616 n. 3, the Court

noted that where dismissal would

unfairly penalize clients for the

neglect of their attorneys, measures

directed against dilatory counsel are

available, citing Butler v. Pearson,

636 F.2d 526 (D.C.Cir. 1980), in

which counsel was ordered to pay the

reasonable expenses of the litigation

which his neglect had engendered.

Here, we do not believe that Comuni-

Centre may properly escape responsi-

bility for its counsel's dilatori-

ness, since the filing deadline and

prior litigation history were known

(or should have been known) by the

applicant's principals as well as its

counsel. See Vela Broadcasting Co.,

FCC 85R-93, released November 15,

1985 (Rev. Bd.).

A-48

FEDERAL COMMUNICATIONS

COMMISSION

s/Jerold L. Jacobs

Jerold L. Jacobs

Member, Review Board

A-49

FCC 86-477

Before the

Federal Communications Commission

Washington, D. C. 20554

MM Docket No. 85-27

CUBAN~AMERICAN File No. BPCT-840921KE

LIMITED et al.

For Construction Permit for a

New Television Station on

Channel 35

Miami, Florida

ORDER

Adopted: October 24, 1986;

Released: November 5, 1986

By the Commission: Commissioner Quello

concurring in the result.

1. The Commission has before it:

(a) an Application for Review of a meviaw

Board Memorandum Opinion and Order, 102

FCC 2d 1238 (1985), filed January 16,

1986, by Comuni-Centre Broadcasting, Inc.

(Comuni-Centre);1! (b) an Opposition to

l We have accepted and considered the

declarations of Comuni-Centre's

counsels that they did not review the

A-50

(a) filed January 29, 1986, by Miami

Latino Broadcasting Corp. (Miami Latino),

Coiral Way Broadcasting, Ltd., and Grace

Broadcasting Network, Inc.; (d) Erratum

and Motion to Supplement Application for

Review * filed March 26, 1986, by Comuni-

Centre; and (e) an Opposition to (d) filed

timely-filed proposed findings of the

other applicants before filing

Comuni-Centre's late-filed proposed

findings, except to the extent that

they have indicated. (See footnote l

of Comuni-Centre's Motion to Accept

Proposed Findings of Fact and Con-

clusions filed September 23, 1985).

Nevertheless, we find the Board's

failure to acknowledge counsels'

declarations to be harmless error and

reject Couni-Centre's contention that

counsels’ forebearance in this re-

spect significantly undercuts the

Board's determination that acceptance

of the late-filed pleadings would

have a disruptive effect on the

proceeding.

2 Since Comuni-Centre's motion is.

essentially a Reply to Oppositions

filed against Comuni-Centre's Appli-

cation for Review, it is an unauthor-

ized pleading. See Section 1.115(f)

of our Rules. Therefore, we shall

deny Comuni-Centre's Motion to

Supplement Application for Review.

A-51

April 4, 1986 by Miami Latino. The Review

Board opinion at issue affirmed the dis-

missal of Comuni-Centre's application by

the Presiding Law Judge. >

2. IT IS ORDERED, That, pursuant to

Section 5(c)(5) of the Communications Act

of 1934, as amended, and Section 1.115(g)

of the Commission's Rules, the Application

for Review filed January 16, 1986, by

Comuni-Centre Broadcasting, Inc. IS

DENIED. ~

36 IT IS FURTHER ORDERED, That the

Motion to Supplement Application for

Review filed March 26, 1986, by Comuni-

Centre Broadcasting, Inc. IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

William J. Tricarico

Secretary

3 FCC 85M-3938, released October 9,

1985.