Record and brief — Memphis Mobile Telephone, Inc. v. Federal Communications Commission
Supreme Court brief1982
Ask Donna
What actually matters in this document.
Text
vowed
Office - Supreme Court, US.)
81- 16 60 FILED
NO. MAR O 1082
IN THE pense gape
SUPREME COURT OF THE UNITED SPx?E<
OCTOBER TERM, 1981
MEMPHIS MOBILE TELEPHONE, INC., AND
RADIO TELEPHONE INDUSTRIES, INC.,
Petitioners,
Vv
THE FEDERAL COMMUNICATIONS
COMMISSION, ET AL.,
Respondents.
ON WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
CIRCUIT
PETITION FOR WRIT OF CERTIORARI
JOHN M. BALLENGER
Suite 304
6121 Lincolnia Road
P.O. Box 11278
Alexandria, VA 22312
(703) 750-1112
Counsel for Petitioners
QUESTION PRESENTED
Whether a consolidated administra-
tive proceeding in which the Federal
Communications Commission (a) investi-
gated alleged anticompetitive conduct
of four radio common carriers and (b)
acted upon a construction permit appli-
cation of only one of those carriers
constituted an "investigation" which is
reviewable by the United States Court
of Appeals under 47 U.S.C.A. § 402(a)
or constituted a "licensing" proceed-
ing and is reviewable only under 47
U.S.C.A. § 402(b).
(i)
LIST OF PARTIES
The petition is brought by Memphis
Mobile Telephone, Inc., and Radio Tele-
phone Industries, Inc. Both were peti-
tioners before the Court of Appeals.
The Federal Communications Commis-
sion and the United States of America
were respondents before the Court of
Appeals.
Mahaffey Message Relay, Inc.,
Mobilfone Communications, AAA Anserphone
Inc. - Jackson and Airsignal Inter-
national, Inc., were intervenors be-
fore the Court of Appeals.
LIST OF PETITIONERS'
AFFILIATES
The following information is pro-
vided pursuant to the requirements of
Rule 28.1. Memphis Mobile Telephone,
Inc., is affiliated, through stock owner-
ship, with the following corporations:
(ii)
El Dorado Mobile Telephone, Inc.; Russell-
ville Radio Telephone Company, Inc.;
Little Rock Radio Telephone Company,
Inc.; Grant County Radio Telephone
Company, Inc.; Mississippi County
Communications Company, Inc.; Hot Springs
Radio Telephone Company, inc.; Morrilton
Radio Telephone Company, Inc.; Conway
Radio Telephone Company, Inc.; Malvern
Radio Telephone Company, Inc.; Pocahontas
Radio Telephone Company, Inc.; and Bates-
ville Radio Telephone Company, Inc.
Radio Telephone Industries, Inc., is not
affiliated with any other companies.
(iii)
TABLE OF CONTENTS
Page
QUESTION PRESENTED -------~------- (i)
LIST OF PARTIES ---------------- (ii)
LIST OF PETITIONERS' AFFILIATES - (ii)
INDEX ----------+---------------- (iv)
OPINIONS BELOW ------------------ 2
JURISDICTION eniincialiinninnaainie 3
STATUTORY PROVISIONS INVOLVED --- 3
STATEMENT OF THE CASE ----------- 5
ARGUMENT ------------------------ 23
CONCLUSION ---------------------- 44
TABLE OF AUTHORITIES
Cases:
Campos v. F.C.C., 650
F.2d 890 (isai) --------- 26
Columbia Broadcasting
Sys. v. Federal Comn.
Com'n, 211 F.2d 644
(D.C. Cir. 1954) -------- 25
Cook Inc. v. United
States, 394 F.2d 84
(7th Cir. 1968) --------- 31
(iv)
Page
Functional Music, Inc.
v. FCC, 274 F.2d
543, 547 (D.C. Cir.
1958) ---------------- 24, 30
Gerico Investment Co.
v. Federal Commun.
Com'n, 240 F.2d
410 (D.C. Cir. 1957)-- 24
Helena TV, Inc. v.
Federal Communica-
tions Commission,
269 F.2d 30 (9th
Cir. 1959) ----------- 31
Kessler v. FCC. 326 F.2d
653 (D.c. Cir. 1964)-- 24
Mahaffey Message Relay,
Inc., 79 F.C.C. 2d
399 (1980) ----------- 2
Mahaffey Message Relay,
Inc., 79 F.C.C. 2d
414 (1979) ----------- 3
National Ass'n of Broad-
casters v. FCC, 554
F.2d 1118 (D.C. Cir.
1976) ---------------- 25
Rhode Island Television
Corporation v. FCC,
320 F.2d 762 (D.C. Cir.
1963) ---------------- 25
Scripps-Howard Radio v.
Federal Communications
Commission, 316 U.S. 4,
16, 62 S.CT, 875, 882
(1942) --------------- 28
Page
Tomah-Mauston Broad-
casting Co. v
FCC, 306 F.2d 811
(D.C. Cir. 1962) ------- 24
Valley Vision, Inc.
v. F.C.C., 399 F.2d
511 (9th Cir. 1968) ---- 31
WHDH, Inc. v. United
States, 457 F.2d 559,
561 (lst Cir. 1972) ---- 31
Statutes:
47 U.S.C. § 203 ----------- 11
47 U.S.C. § 208 ----------- 10, 17,
36, 41
47 U.S.C. § 313 ----------- ll
47 U.S.C. § 402(a) -------- through-
out
47 U.S.C. § 402(b) -------- through-
out
47 U.S.C. § 403 ----------- 16, 17,
36, 41
(vi)
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1981
MEMPHIS MOBILE TELEPHONE, INC., AND
RADIO TELEPHONE INDUSTRIES, INC.,
Vv.
THE FEDERAL COMMUNICATIONS COMMISSION,
ET AL.
PETITION FOR A WRIT OF CERTIORARI
Petitioners Memphis Mobile Tele-
phone, Inc., and Radio Telephone Indus-
tries, Inc., respectfully pray that a
writ of certiorari issue to review the
Orders of the United States Court of
Appeals for the District of Columbia
Circuit entered in this proceeding on
November 10, 1981, and December 9, 1981.
2
OPINIONS BELOW
The Orders of the Court of Appeals,
not reported, appear in the Appendix
hereto. The November 10, 1981, Order
dismissed the Petition for Review of an
administratively final Order of the Fed-
eral Communications Commission (hereafter
referred to as "the Commission") re-
leased July 23, 1981. A copy of the
Commission's Order, also unreported,
appears in the Appendix hereto. The
Commission's Order affirmed an earlier
Report and Order of the Commission's
Review Board. The Review Board's Report
and Order, reported at Mahaffey Message
Relay, Inc., 79 F.C.C. 2d 399 (1980),
affirmed, in part, and reversed in part,
an earlier Initial Decision by
3
Administrative Law Judge Daniel M. Head.
Judge Head's Initial Decision is report-
ed at Mahaffey Message Relay, Inc., 79
F.C.C. 2d 414 (1979).
JURISDICTION
The Dismissal Order of the Court
of Appeals was entered on November 10,
1981. A timely Petition for Rehearing
and Suggestion for Rehearing En Banc
was denied on December 9, 1981, and
this petition for certiorari was filed
within 90 days of that date. This
Court's jurisdiction is invoked under
28 U.S.C.A. § 1254 (1).
STATUTORY PROVISIONS INVOLVED
Section 402(a) and (b) of the
Communications Act of 1934, 47 U.S.C.A.
§§ 402(a), (b):
Sec. 402(a) Any ge
to enjoin, set aside, ann
or suspend any order of the
4
Commission under this Act
(except those appealable
under subsection (b) of this
section) shall be brought as
provided by and in the manner
prescribed in chapter 19A of
Title 5.
(b) Appeals may be taken
from decisions and orders of
the Commission to the United
States Court of Appeals for
the District of Columbia in
any of the ne cases:
(1) By any applicant
for a construction permit or
station license, whose appli-
cation is denied by the Commis-
sion.
(2) By any applicant for
‘the renewal or modification of
any such instrument of authori-
zation whose application is
denied by the Commission.
(3) By any party to an
application for authority to
transfer, assign, or dispose
of any such instrument of
authorization, or any rights
thereunder, whose application
is denied by the Commission.
(4) By any applicant for
the permit required by section
325 of this title whose applica-
tion has been denied by the
Commission, or by any permittee
under said section whose per-
mit has been revoked by the
Commission.
(5S) By the holder of any
5
construction permit or sta-
tion license which has been
modified or revoked by the
Commission.
(6) By any other person
who is aggrieved or whose
interests are adversely affec-
ted by any order of the Commis-
sion granting or denying any
application described in para-
graphs (1) - (4) of this sub-
section.
(7) By any person upon
whom an order to cease and
desist has been served under
section 312 of this title.
(8) By any radio operator
whose license has been suspended
by the Commission.
STATEMENT OF THE CASE
Memphis Mobile Telephone, Inc., and
Radio Telephone Industries, Inc., timely
filed their Petition for Review with
the U. S. Court of Appeals for the
District of Columbia Circuit pursuant
to Section 402(a) of the Communications
Act of 1934, 47 U.S.C.A. § 402(a). In
petitioners’ judgment § 402(a) was the
proper statutory provision for judicial
6
review inasmuch as those portions of the
Commission's orders wnich petitioners ask
the Court of Appeals to review were in-
vestigatory in nature rather than being
an exercise of the Commission's licen-
sing powers.
The Commission filed a Motion to
Dismiss with the Court of Appeals on
the grownds that the agency proceeding
was a licensing proceeding reviewable
only pursuant to Section 402(b) of the
Communications Act of 1934, 47 U.S.C.A.
§ 402(b).
The Court of Appeals agreed with
the Commission that the agency proceed-
ing was a licensing proceeding and that
§ 402(b) was the exclusive provision of
the Communications Act governing appeals
of licensing proceedings. The Court
thus dismissed the Petition for Review
7
on the basis that it was untimely filed
under § 402(b). '
The issue raised, then, is whether
the Commission's proceeding was an in-
vestigation, a licensing proceeding, or
both. If it is found that the Commis-
sion's proceeding was both an investi-
gation and a licensing proceeding, then
an issue is raised whether the proceed-
ing is separable for the purpose of
judicial review or whether § 402(b) is
the controlling, and exclusive, provision
for review. An understanding of the
nature and background of the Commission's
proceedings is essential to resolution
of these issues.
1/ The Petition for Review was timely,
however, under 402(a) of the
Communications Act.
8
On August 4, 1976, and September
30, 1976, the Commission consolidated
several then pending proceedings for
oral hearing before an Administrative
Law Judge. The consolidated proceed-
ing was, in turn, divided into three
distinct phases which were thereafter
designated Phases I, II and III, respec-
tively.
Phase I, which was investigative
in nature, arose out of complaints and
petitions filed with the Commission by
Memphis Mobile Telephone, Inc., alleging
that Mahaffey Message Relay, Inc., a
Commission licensee and common carrier
by radio, unilaterally and together with
three other Commission licensees and
common carriers, those being Otis L.
Hale d/b/a Mobilfone, AAA Anserphone,
Inc.-Jackson, and Airsignal International,
9
Inc., had engaged in anticompetitive con-
duct intended to preclude Memphis Mobile
Telephone, Inc., from entering the radio
common carrier market in Memphis, TN.
According to the Commission's Designation
Order, Phase I of the proceedings was
convened for the following purposes:
To determine whether Mahaffey
Message Relay, Inc., AAA Anser-
phone-Jackson, and Otis L. Hale
d/b/a Mobilphone have jointly
engaged in conduct intended to
prevent the filing of competing
applications for radio carrier
frequencies in the greater Men-
phis, Tennessee metropolitan
— subsequent to January l,
To determine the facts and cir-
cumstances surrounding Mahaffey's
filing of applications for 450
MHz and lowband one-way frequen-
cies in the Memphis Metropolitan .
= subsequent to January l,
Hearing on the issues raised in Phase I
required eight days of oral testimony and
involved the active participation of six
10
separate parties, all represented by
counsel. Phase I was clearly the predom-
inant phase of the consolidated proceed-
ings. It lasted significantly longer
than Phase III, involved more parties,
and related to issues of gréater prece-
dental significance than Phase III. The
Petition for Review filed with the U. S.
Court of Appeals for the District of
Columbia Circuit sought review of the
issues in Phase I only.
Phase II of the agency proceedings
arose out of complaints filed by Radio
Telephone Industries, Inc., and Messrs.
Larry Short and Douglas Wagnon pursuant
to Section 208 of the Communications Act
of 1934, as amended, 47 U.S.C. § 208.
The complaints alleged generally that
Mahaffey Message Relay, Inc., had
constructed a vertically integrated
11
monopoly by requiring that terminal equip-
ment owned by its customers be installed
and maintained by Mahaffey Communications
Company, a separate family owned company,
in violation of Sections 203 and 313 of
the Communications Act, 47 U.S.C. 203 and
313. Hearing on the issues raised in
Phase II required five days of oral testi-
mony and involved the active participation
of five parties. The issues involved in
Phase II were not appealed to the Court
of Appeals.
Phase III, the licensing phase of
the consolidated agency proceedings, in-
volved three applications by Mahaffey
Message Relay, Inc., for construction
permits in the Domestic Public Land
Mobile Radio Service (DPLMRS). Hearing
on the issues in Phase III required one
day only of oral testimony and involved
12
the active participation of only two par-
ties, those being Mahaffey Message Relay,
Inc., and the Commission's own Common
Carrier Bureau. The issues involved in
Phase III, like those involved in Phase II,
were not appealed to the Court of Appeals.
At the time of the oral hearing in
Phase III, the licensing phase, neither
Radio Telephone Industries, Inc., nor
Memphis Mobile Telephone, Inc., were
parties to that phase of the proceeding.
Memphis Mobile Telephone, Inc., had
originally been a party in both Phases
I and III, but its status as a party in
Phase III was terminated by the Commis-
sion itself. At the time of that termin-
ation, the Commission apparently viewed
the two phases of the consolidated
proceedings as two separate proceedings,
Phase I as an investigation and Phase
13
III as a construction permit application
proceeding. The issue of Memphis Mobile
Telephone's status as a party in Phase
III was addressed by the Administrative
Law Judge in an Order released January
31, 1979, as follows:
"Turning to the question of
MMT's request to retain its
Status as a party .. . MMT's
intent is to file proposed
findings in connection with
Phase III. However, this
would not serve any useful
purpose since MMT no longer
has any interest in Mahaffey's
application .. . Therefore,
we see no reason to continue
MMT's party status on Phase
III issues. On the other
hand, MMT's request can be
interpreted as asking to main-
tain its party status in rela-
tion to Phase I issues, in
which MMT substantially partici-
pated . . . we agree with the
Bureau's position that MMT
should retain its party status
on Phase I issues ... we
will continue MMT's status as
a party but only with regard
to any further activities
involving Phase I issues."
14
The Judge viewed Memphis Mobile Telephone,
Inc., as a party to the investigation
conducted by the Commission in Phase I,
but not as a part in "interest in Mahaf-
fey's application," which was under con-
sideration in Phase III only. For that
reason, Memphis Mobile Telephone's
status as a party in Phase iII was ter-
minated.
The Judge's decision to terminate
Memphis Mobile Telephone's status as a
party in Phase III was upheld by the
Commission in an Order dated November
30, 1979, with the following explana-
tion:
"In our view, the ALJ did not
abuse his discretion. Since
MMT's application has been
dismissed it no longer has
standing as a competing appli-
cant .. . Airsignal, AAA-
Anserphone and Otis L. Hale
(Mobilfone) are party-respon-
dents in the case for purposes
15
of participation with respect
to an issue which was tried
in Phase I of the proceeding.
MMT has participated in that
Phase and... retains its
Status as a party thereto."
The above explanations accurately re-
flect the Commission's understanding of
the nature of its own proceedings at
that time. The Commission viewed Phase
III as a licensing proceeding in which
Memphis Mobile Telephone was without
standing to participate, and viewed
Phase I as an investigation in which
Airsignal, AAA-Anserphone, and Mobile-
fone were "party-respondents" and in
which Memphis Mobile Telephone had
standing as a party.
Because of Memphis Mobile Telephone's
lack of standing in Phase III, the Peti-
tion for Review filed with the Court of
Appeals sought review of the Commission's
16
actions or inactions with respect to the
issues raised in Phase I only. In con-
trast to Phase III, the proceedings in
Phase I did not directly involve the
merits of Mahaffey's applications, i.e.,
there was no determination to be made
whether the applications should be granted
or denied. Rather, Phase I was investi-
gative in nature and involved an inquiry
not only into alleged unilateral anti-
competitive conduct by Mahaffey, but also
into alleged joint anticompetitive con-
duct by Mahaffey, Airsignal, AAA Anser-
phone and Mobilfone. In conducting the
inquiry in Phase I, the Commission was
not exercising any of its licensing
powers, but was instead exercising its
power to conduct an inquiry pursuant to
Section 403 of the Communications Act
of 1934, 47 U.S.C. 403.
17
Alternatively, Phase I might be
viewed as an adjudicatory enforcement
proceeding convened in response to com-
plaints filed with the Comm:ssion by
petitioners and convened either pursuant
to powers conferred by 47 U.S.C. 208 or
47 U.S.C. 403. If the Commission was
not exercising its investigative juris-
diction under Sections 208 or 403, then
it had no jurisdiction to even proceed
against Airsignal, AAA Anserphone or
Mobilfone, parties characterized by
the Commission itself as "party-respon-
dents," for not one of them had a
license application pending in the
subject proceedings.
The joint conduct into which the
Commission inquired in Phase I, conduct
alleged by petitioners to be anticompeti-
tive in nature, involved an agreement
18
among and between Mahaffey, Airsignal,
AAA Anserphone and Mobilfone : which
had the effect of dividing among the
four of them the radio common carrier
market in the greater Memphis, TN, area,
to the exclusion of potential competitors,
including Memphis Mobile Telephone, Inc.
The horizontal market division accom-
plished by that agreement, illegal per
se under the antitrust laws, was essen-
tially ignored by the Commission as being
merely an expedient means to accomplish
the settlement of issues which might
otherwise have arisen in the context of
a comparative hearing upon the merits of
mutually exclusive DPLMRS applications.
Even if that were so, and even if the
Commission were ultimately to find and
2/ Mobilfone disputes that it ever
entered into the agreement.
19
conclude that the agreement was consis-
tent with the public interest and not
contrary thereto, the fact is that the
agreement was never presented to the
Commission by the parties for the Commis-
sion's consideration, approval or dis-
approval. And the Commission itself,
now that it is aware of the agreement's
existence, has refused to formally
address the merits or demerits of the
agreement itself, has refused to consider
the inherently anticompetitive impact of
that agreement, and has refused to compel
the parties co the agreement to bring the
agreement before the Commission for
approval or disapproval.
By their agreement, the four respon-
dents divided the relevant market among
themselves along both geographic and
product lines. Under the terms of that
20
agreement, the parties have allocated
Memphis proper to Mahaffey as its market
territory; have allocated South Haven,
MS, to AAA Anserphone; and have allocated
West Memphis, AR, to Airsignal and Mobil-
fone. Of the fourteen frequencies avail-
able, the parties decided to allocate
six to Mahaffey, three to AAA Anserphone,
three to Airsignal, and two to Mobilfone.
In terms of the nature of service to be
provided, the parties allocated inter-
connected mobile telephone service to
Mahaffey and AAA Anserphone, non-inter-
connected repeater service to Mobilfone
and Airsignal, and interconnected
repeater service to Mahaffey. Petition-
ers cannot imagine a more restrictive
anticompetitive horizontal market divi-
sion than that accomplished by the four
parties who were respondents in Phase I
21
of the agency proceedings. Nonetheless,
the Commission refused to take any
remedial action.
The anticompetitive conduct of the
four respondents and the inherently anti-
competitive nature of the settlement
agreement were the principal issues
raised by petitioners and presented to
the Commission in agency appellate pro-
ceedings. In its "Application for Review"
filed with the Commission, petitioners
argued at page -3- that:
"THE REVIEW BOARD'S CONCLU-
SION THAT AN EXTRA RECORD
SETTLEMENT AGREEMENT, NOT
SUBMITTED TO OR APPROVED BY
THE COMMISSION, MAY NOT
CONSTITUTE ANTI-COMPETITIVE
CONDUCT IN AND OF ITSELF
RAISES AN IMPORTANT ISSUE OF
LAW AND POLICY WHICH WARRANTS
COMMISSION REVIEW"
The petitioners, after presenting their
argument, asked the Commission to
". . . serutinize the
22
settlement agreement as if
the same were submitted to
it for approval pursuant to
47 C.F.R. 21.29... (and)
. disapprove the ‘settle-
ment agreement as being anti-
competitive for the reasons
set forth above .. ."
In response to the Application for
Review, the Commission failed or refused
to address any of the issues raised, and
simply denied the Application in a
summary order. Petitioners were thus
aggrieved by the failure of the Commis-
sion to find and conclude, as a conse-
quence of its investigation, that the
four respondents jointly engaged in anti-
competitive conduct, and by the Commis-
sion's failure to find and conclude that
the settlement agreement, entered into
without approval of the Commission, was
illegal and of no force and effect.
Based upon that grievance, petitioners
filed their Petition for Review with the
23
U. S. Court of Appeals for the District
of Columbia Circuit pursuant to 47 U.S.C.
§ 402 (a).
The substantive issue which peti-
tioners wish to present to the Court of
Appeals for review is
whether a horizontal market
division entered into among
four radio common carriers
constitutes anticompetitive
conduct cognizable by the
Federal Communications Commis-
sion and, if so, what remedies
are available from the Commis-
sion to aggrieved parties as
a consequence thereof.
The Court of Appeals has thus far declined
review, but has instead dismissed the
Petition fcr Review on the grounds that
the Petition was brought under 47 U.S.C.
§ 402% a) rather than 47 U.S.C. § 402(b) .
ARGUMENT
Section 402 of the Communications
Act is a difficult jurisdictional pro-
vision which repeatedly plagues appellate
24
counsel and the Courts of Appeals in its
application and interpretation. Certio-
rari should |. granted so that the Supreme
Court might provide clear guidance to the
lower courts and to counsel concerning
the proper procedures to be followed in
the review and appeal of Commission
decisions under that statutory provision.
The magnitude of the uncertainty
which currently exists is evidenced by
the fact that some petitioners, aggrieved
by decisions of the Commission, seek
review under both Sections 402(a) and
402(b). Gerico Investment Co., v. Feder-
al Commun. Com'n, 240 F.2d 410 (D.C. Cir.
1957); Kessler v. FCC, 326 F.2d 653 (D.C.
Cir. 1964); Tomah-Mauston Broadcasting
Co. v. FCC, 304 F.2d 811 (D.C. Cir.
1962); Functional Music, Inc. v. FCC,
25
274 F.2d 543 (D.C. Cir. 1958); Columbia
Broadcasting Sys. v. Federal Comm. Com'n,
211 F.2d 644 (D.C. Cir. 1954); Rhode Is-
land Television Corporation v. FCC, 320
F.2d 762 (D.C. Cir. 1963); and National
Ass'n of Broadcasters v. F.C.C., 554 F.2d
1118 (D.C. Cir. 1976). Such a cumbersome
procedure compels the Court of Appeals, in
every case in which there is a dual filing,
to consume precious additional judicial
resources determining which of the two
avenues of review is the more appropriate
one. Proper functioning of the appellate
process requires clarification of the
Statute by the Supreme Court so that the
awkward, expensive, and judicially in-
efficient practice of filing under both
sections 402(a) and 402(b) will no
longer be encouraged or deemed necessary
by any appellate counsel.
26
Petitioners, secondly, submit that
dismissal of their Petition for Review
by the U. S. Court of Appeals for the
District of Columbia Circuit conflicts
with the decision of the U. S. Court of
Appeals for the Seventh Circuit in
Campos v. F.C.C., 650 F.2d 890 (1981).
The Court of Appeals there held that
Section 402(b) of the Communications Act
is to be narrowly construed, and found
review of radio operator license pro-
ceedings to be proper under 402(a). In
the instant proceeding, in contrast, the
Court of Appeals construed 402(b) very
broadly as being the exclusive review
provision where any part of the proceed-
ings below involved an excercise of the
Commission's licensing functions. Peti-
tioners believe a more enlightened con-
struction of 402(a) and 402(b) would
27
allow appeal of separable portions of
the same proceeding under separate perti-
nent statutory provisions. Thus, in the
instant circumstances, Phase I, an in-
vestigation, is reviewable under 402(a);
Phase II, a complaint proceeding, is
reviewable under 402(a); and Phase III,
a licensing proceeding is reviewable
under 402(b). Petitioners submit that
no other rational resolution of the
jurisdictional issue presented is possi-
ble in these unique circumstances where:
(a) the FCC has consolidated
an investigation of multiple
respondents with complaints
filed by multiple complainants,
and further consolidated both
proceedings with construction
permit applications of one of
the four respondents,
(b) the consolidated proceeding
was thereafter segregated into
three separate and distinct
phases, each with different
parties and issues, and
28
(c) the construction permit
applications of three of the
party-respondents to the Phase
I investigation were bifurcated
into separate Commission proceed-
ings which are still pending.
Such an interpretation by the Supreme
Court would, petitioners believe, prevent
apparent conflicts between the decisions
of the various Courts of Appeals.
Thirdly, petitioners note that the
statutory purpose for the distinction
between Sections 402(a) and 402(b) was
to place venue of Section 402(b) appeals
in the U. S. Court of Appeals for the
District of Columbia Circuit. In Scripps-
Howard Radio v. Federal Communications
Commission, 316 U.S. 4, 16, 62 S.CT. 875,
882 (1942), the Supreme Court discussed
the difference between Section 402(a)
and 402(b) in the following language:
"It is urged that the orders
reviewable under § 402(a), as
to which the power to grant
29
stays is undeniable, are in-
trinsically different from
those reviewable under §402(b).
But while the two sections
route appeals to different
courts, the differentiation
was in large measure the pro-
duct of Congressional solici-
tude for the convenience of
litigants. It had no relation
to the scope of the judicial
function which the courts were
called upon to perform. For
example, if the Commission
on its own motion modifies
a station license, review is
had under §402(a) in the
appropriate district court.
However, if it grants an
application for modification
of a license, an appeal lies
under §402(b) to the Court
of Appeals for the District
of Columbia. Both cases give
rise to the same kind of issues
on appeal. Both orders are
equally susceptible of being
Stayed on appeal. As the legis-
lative history of the Act
plainly shows, Congress pro-
vided the two roads to judicial
review only to save a licensee
the inconvenience of litiga-
ting an appeal in Washington
in situations where the Commis-
sion's order arose out of a
proceeding not instituted by
the licensee."
Although Section 402 was amended and
30
modified somewhat in 1952, the Courts of
Appeals still recognize that the distinc-
tion between Sections 402(a) and 402(b)
is one of forum selection. In Functional
Music, Inc. v. F.C.C., 274 F.2d 543, 547
n.10 (D.C. Cir. 1958), for example, the
Court of Appeals, citing Scripps-Howard
Radio Co. v. Federal Communications
Comm., supra, noted that:
"The orders encompassed by
§402(b) directly affect the
radio-licensing function of
the Commission, and in the
interest of uniformity, appeal
therefrom is concentrated in
the Court of Appeals for the
District of Columbia Circuit.
All other Commission orders
may be reviewed alternatively
in the Court of Appeals for
the Circuit where the party
resides or has its principal
office, or in the Court of
Appeals for the District of
Columbia Circuit. 64 Stat.
1130 (1950), 5 U.S.C.A. §1033
(1952) ."
Forum selection considerations also
appear to be an important factor in the
31
decisions of the courts in Helena TV,
Inc. v. Federal Communications Commis-
sion, 269 F.2d 30 (9th Cir. 1959); WHDH,
Inc. v. United States, 457 F.2d 559, 561
(lst Cir. 1972); Valley Vision, Inc. v.
F.C.C., 399 F.2d 511 (9th Cir. 1968); and
Cook Inc. v. United States, 394 F.2d 84
(7th Cir. 1968).
In the instant proceeding, peti-
tioners have sought review in the United
States Court of Appeals for the District
of Columbia Circuit, a proper forum for
review of a Section 402(a) or a Section
402(b) order. No party has grounds to
complain that petitioners are forum
shopping or that their rights have in
the slightest been adversely affected
by the bringing of the petition in the
U. S. Court of Appeals for the District
of Columbia Circuit. Petitioners do not
32
believe it is appropriate for their Peti-
tion for Review to have been dismissed
when the statutory purpose(s) for any
distinctions between Sections 402(a) and
402(b) have thus been completely satis-
fied.
A fourth reason for granting certi-
orari is to prevent the procedural con-
fusion and administrative delays which
will otherwise result in the processing
of separate, but related, proceedings
still pending before the Commission.
The Court is advised that Airsignal,
Mobilfone, AAA-Anserphone, and Mahaffey
all have DPLMRS applications pending be-
fore the Commission and that those pro-
ceedings directly involve the greater
Mempr’« «- .- .mmon carrier market.
AAA-Anserphone's application for con-
struction permits in South Haven, MS, is
33
pending in FCC File No. 20032-C2-P-(4)-
74. Mobilfone's application for con-
struction permits in West Memphis, AR,
is pending in FCC File No. 8942-C2-P-(2)-
73. Airsignal's application for con-
struction permits in West Memphis, AR,
is pending before the FCC in File No.
20076-C2-P-(4)-74. Those three appli-
cations were the subject, inter alia,
of the settlement agreement between the
“party-respondents" in Phase I, although
none of the three applications was
actually before the Commission in its
investigation in the consolidated pro-
ceedings below. All three were pending
in separate dockets. When the investi- .
gation was completed, the Commission, in
its final Order, stated in footnote 1
thereof that:
". . . we deem it appropriate that
the Common Carrier Bureau resume
34
processing of those appli-
cations (of the three party-
respondents) and determine,
consistent with its delega-
tion of authority, whether
the grant of those applica-
tions would serve the public
interest, convenience and
necessity."
Memphis Mobile Telephone, believing
Phase i of the proceedings below to have
been an investigation of the conduct of
the four party-respondents and not a
licensing proceeding as the Commission
now claims, has asked the Commission,
in its disposition of the three above-
referenced applications, to take admin-
istrative notice of the unlawful conduct
disclosed in the consolidated proceed-
ings below. The Common Carrier Bureau
has yet to take any action upon that
request or upon Memphis Mobile Telephone's
Petition to Deny the three applications,
and all three are still awaiting initial
35
disposition.
If the Court views Phase I of the
proceedings below to have constituted
an exercise of the Commission's licens-
ing powers and not, as petitioners sub-
mit, its investigative powers, then the
inevitable result will be bifurcated
judicial review of the separate pro-
ceedings. Thus, if the Court of Appeals'
Dismissal Order is ultimately upheld,
and if the Commission thereafter grants
the pending applications of the three
party-respondents, Memphis Mobile Tele-
phone would be forced by circumstances
to file Petitions for Review of all
three applications under 47 U.S.C. 402(b),
or under both 47 U.S.C. 402(b) and 402(a).
This awkward procedure would be
necessary in order for Memphis Mobile
Telephone to obtain judicial review of
36
the issues raised in Phase I of the pro-
ceeding below. What Memphis Mobile Tele-
phone would much prefer is for the Court
to recognize Phase I for what it actually
is, an exercise of the Commission's in-
vestigatory powers under 47 U.S.C. 208
or 47 U.S.C. 403, and reviewable under
47 U.S.C. 402(a), thereby paving the way
for early judical review of an issue
common to all five proceedings.
Petitioners believe that the party-
respondents themselves view Phase I of
the proceedings below to have been an
investigation of their conduct; just
as petitioners do. In recent corres-
pondence to the Commission, party-respon-
dent AAA Anserphone, Inc.-Jackson stated:
"The Commission has concluded
on the basis of an evidentiary
hearing that AAA Anserphone,
Inc.-Jackson (AAA) did not
engage in anticompetitive
conduct in the prosecution of
37
its .. . application .
That decision was appealed
by Memphis Mobile Telephone,
Inc. (MMT) to the United
States Court of Appeals
for the District of Columbia
Circuit .. . Enclosed is
a copy of the Court's Order
of November 10, 1981, which
granted the Commission's
motion to dismiss MMT's
appeal as untimely filed.
Accordingly, the Commission's
findings as to AAA's qualifi-
cations are no longer subject
to judicial review, and the
Commission's disposition of
MMT's charges of anti-competi-
tive conduct should be con-
Sidered res judicata .. ."
It would thus appear that AAA views
Phase I of the proceedings below to have
constituted an investigation of its
conduct which is aow res judicata in its
own pending construction permit applica-
tion proceeding. Petitioners do not
consider themselves bound by the repre-
sentatives of AAA, but would agree that
Phase I constituted an investigation of
38
the conduct of AAA Anserphone, Inc. -
Jackson; that AAA's application was not
before the Commission in that proceeding;
and that AAA's application is now pend-
ing resolution by the Commission and is
neither administratively final nor
judicially reviewable at this time.
What is judicially reviewable is the
action or inaction of the Commission
in its investigation in Phase I, and
that review may be conducted pursuant
to 47 U.S.C. §402(a).
Finally, but most important from
the viewpoint of your petitioners, peti-
tioners believe the dismissal Order of
the Court of Appeals to be erroneous as
a matter of law. The impact of that
Order is to unjustly deprive petitioners
of their right of judicial review. It
is petitioners’ opinion that the Court
39
below misconstrued the applicability of
47 U.S.C.A. § 402(b). The Court of
Appeals erroneously concluded that peti-
tioners are persons aggrieved or whose
interests are adversely affected by an
order of the Commission granting an appli-
cation for a construction permit or
station license. [47 U.S.C.A. § 402(b)
(1), (6) (1976)]. Contrary to the Court
of Appeals’ conclusion, neither Memphis
Mobile Telephone, Inc., nor Radio Tele-
phone Industries, Inc., can be considered
an "aggrieved" person pursuant to Section
402(b) (6) inasmuch as neither company,
upon conclusion of the consolidated pro-
ceedings below, was a party to the
Mahaffey Message Relay applications, the
only applications then before the Commis-
sion in the involved proceedings. To
the contrary, petitioners’ aggrievement
40
arises from their status as complainants
against the anticompetitive actions of one
or more of the four party-respondents whose
conduct the Commission was investigating.
. Not only were Memphis Mobile Tele-
phone, Inc., and Radio Telephone Indus-
tries, Inc., neither applicants nor pro-
testants to any application in the con-
solidated proceedings below, the party-
respondents AAA Anserphone-Jackson,
Inc., Mobilfone Communications, and
Airsignal International, Inc., also were
neither applicants nor protestants in
those proceedings. Insofar as the
Commissions’ actions, or inactions, in
the consolidated proceedings below
affected the rights of Memphis Mobile
Telephone, Inc., Radio Telephone Indus-
tries, Inc., AAA Anserphone-Jackson,
Inc., Mobilfone Communications, and
41
Airsignal International, Inc., the Commis-
sion was not exercising any of its licens-
ing powers. Assuming the Commission had
power to, in some fashion, adjudicate the
rights of the above named parties, it was
exercising investigative or adjudicatory
powers conferred upon it by statute under
47 U.S.C.A. § 403 or § 208.
The only applicant in the proceed-
ings below was Mahaffey Message Relay,
Inc., and the only party to Mahaffey's
applications, either in support of or
in opposition thereto, was the Commis-
sion's own Common Carrier Bureau. Neither
Mahaffey Message Relay, Inc., nor the
Common Carrier Bureau has asked for
judicial review of the Commission's
disposition of Mahaffey's applications.
Thus no party to the proceedings below
has asserted any claim that it is
42
aggrieved by the Commission's disposition
of the Mahaffey applications. Jurisdic-
tion pursuant to 47 U.S.C.A. § 402(b) (6),
therefore, cannot and could not be asserted
in the U. S. Court of Appeals for the
District of Columbia Circuit. The Commis-
sion's actions, insofar as petitioners
were aggrieved thereby, fell outside of
the scope of 47 U.S.C.A. § 402(b).
Parties aggrieved by Commission actions
which fall outside the scope of 47 U.S.C.A.
§ 402(b) may only seek judicial review
pursuant to 47 U.S.C.A. § 402(a).
Section 402(b) requires the U. S.
Court of Appeals for the District of
Columbia Circuit to examine the nature
of the injury alleged to have been suf-
fered by the party seeking judicial
review. Under 47 U.S.C.A. § 402(b) (6),
if that injury is caused by the grant-
43
ing or denial of a construction permit
or station license application, appeal
must be brought pursuant to Section 402
(b) rather then Section 402(a). In the
proceedings below, petitioners were not
parties to the applications of Mahaffey
Message Relay, Inc., but were parties
to the Commission's investigation of
alleged anticompetitive behavior of four
party-respondents, and were complainants
in their own right against the conduct
of those parties. Petitioners are in-
jured by the Commission's failure to
find and conclude that the four party-
respondents have engaged in unlawful
anticompetitive behavior, and by the
Commission's failure to take any remedial
action whatsoever with respect thereto.
Petitioners’ injury can only be judicially
reviewed under 47 U.S.C.A. §402(a), and
44
we ask this Court to so conclude.
CONCLUSION
For these reasons, a writ of certi-
orari should issue to the judgment and
Orders of the United States Court of
Appeals for the District of Columbia
Circuit.
Respectfully submitted
John M. Ballenger
Suite 304
6121 Lincolnia Road
P.O. Box 11278
Alexandria, VA 22312
(703) 750-1112
Counsel for Petitioner
la
APPENDIX
UNITED STATES COURT OF APPEALS
For the District of Columbia Circuit
No. 81-1973 SEPTEMBER TERM, 1981
(Service Date November 10, 1981
George A. Fisher, Clerk)
Memphis Mobile Telephone, Inc., et al.,
Petitioners
Vv.
Federal Communications Commission and
United States of America,
Respondents
BEFORE: Wald, Mikva and Edwards”
Circuit Judges
ORDER
Upon consideration of respondent's
motion to dismiss, intervenor's memor-
andum in support thereof, petitioner's
response, and respondent's and inter-
venor's replies, it is
ORDERED by the Court that the mtion
is granted and the petition for review
is dismissed. The order that petitioners
seek to have us review was plainly an
* Circuit Judge Edwards did not parti-
cipate in this order.
2a
order granting applications for construc-
tion permits and was thus subject to
ap al only under 47 U.S.C. § 402(b)(1),
( 5°19 76) Petitioners did not appeal
within the thirty (30) day period set by
id. § 402(c). Their appeal is therefore
untimely .
Per Curiam
3a
APPENDIX
UNITED STATES COURT OF APPEALS
For the District of Columbia Circuit
No. 81-1973 SEPTEMBER TERM, 1981
(Service Date December 9, 1981
George A. Fisher, Clerk)
Memphis Mobile Telephone,
Inc., et al.,
Petitioners
Vv.
Federal Communications
Commission and United
States of America,
Respondents
BEFORE: Wald and Mikva, Circuit
Judges
ORDER
On consideration of petitioners’
petition for rehearing filed November 24,
1981, it is
ORDERED by the Court that the afore-
said petition is denied.
Per Curiam
4a
APPENDIX
BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C.
In the Matter of
MAHAFFEY MESSAGE RE-
LAY. INC. Memphis, Tenne-
For Construction Per-
mits for facilities in
the Domestic Public Land
Mobile Radio Services,
to operate in Memphis,
Tennessee
RADIO TELEPHONE INDUS-
TRIES, INC. et al.
Complainants
v.
MAHAFFEY MESSAGE RE-
LAY, INC.
Defendant
ORDER
20554
CC
FCC 81-338
94713
DOCKET NO.
20871
)File Nos.
)8331-C2-P-(8)-73
)8557-C2-P-(4)-73
) 21635-CD-P-75
Vee
)
)
)
)
DOCKET NO.
) 20938
File Nos.
yTS-76-209
) 76-965
) 76-1244
)
)
)
)
Adopted: July 16, 1981;
5a
Released: July 23, 1981
By the Commission: Commissioner
Fogarty Concurring
and issuing a state-
ment; Commissioner
Dawson abstaining
from voting.
1. The Commission has before
it for consideration: (a) an Applica-
tion (79 FCC 2d 399, released May 20,
1980), filed June 19, 1980 by Memphis
Mobile Telephone, Inc. and Radio
Telephone Industries, Inc.; (b) an
Opposition, filed July 14, 1980, by
Airsignal International, Inc.; (d)
an Opposition, filed July 14, 1980, by
Otis L. Hale d/b/a Mobilfone Communi-
cations.
2. IT IS ORDERED, That
pursuant to Section 1.115(g) of the
Commission's Rule the — for
Review, filed June 19, 1980, by Memphis
Mobile Telephone, Inc. and Radio Tele-
phone Industries, Inc. IS DENIED.
3. IT IS FURTHER ORDERED, that
6a
1/
this proceeding IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION *
William J. Tricarico
Secretary
* See attached concurring statement of
Commissioner Joseph R. Fogarty.
I7 By Memorandum Opinion and Order, FCC
76-647, released August 4, 1976, AAA
Anserphone, Airsignal International, and
Mobilfone were made respondents to this
am for purposes of participating
in Issue 1. Since Issue 1 involved an
alleged conspiracy to block the filing
of competing applications for radio
common carrier frequencies in the Memphis,
Tennessee area, our action herein removes
the previous impediment to the grant of
those applications. Nevertheless, we
will not grant the applications filed by
AAA Anserphone, Inc.-Jackson (FCC File
No. 20032-C2-P-(4)-74), Airsignal Inter-
national, Inc. (FCC File No. 20076-C2-
P-(4)-74) and Mobilfone Communications
(FCC File No. 8942-C2-(2)-73) at this time
since only Mahaffey's applications are
before us in this proceeding. Rather,
we deem it appropriate that the Common
Carrier Bureau resume processing of
those applications and determine, con-
sistent with its delegation of authority,
whether the grant of those applications
would serve the public interest, conveni-
ence and necessity.
7a
CONCURRING STATEMENT
OF
COMMISSIONER JOSEPH R. FOGARTY
In Re: Mahaffey Message Relay, Inc.,
Memphis, Tennessee.
While I concur in the Commission's
decision to deny review of this proceed-
ing, I remain troubled by the issue of
Mahaffey's refusal to certify new shops
providing mobile equipment maintenance
in violation of Section 202(a) of the
Communications Act. On this issue, the
ALJ found that Mahaffey had unreasonably
limited the entry of service shops by
refusing to certify new shops on the
arbitrary ground that Memphis already
had enough maintenance service pro-
viders. In addition to finding this
violation of Section 202(a), the ALJ
also found that Mahaffey's refusal con-
stituted an anticompetitive practice
intended to ensure the competitive advan-
tage of a maintenance business owned by
the brother of Mahaffey Radio's president.
As a sanction, the ALJ ordered Mahaffey
to establish a program for inspecting
and approving maintenance shops which are
technically competent to install and
service equipment compatible with the
Mahaffey system, submit such program to
the Common Carrier Bureau for approval,
and take immediate action on the request
of one such shop, General Electronics.
Altheugh the ALJ's disposition of
this issue was not appeaied to the Review
8a
Board, Board Member Ohlbaum's dissent L/
from the affirmance of the ALJ's decision
submitted that Mahaffey's instant appli-
cation should be denied and that revoca-
tion proceedings should be instituted
against Mahaffey's existing licenses.
The dissent argued that Mahaffey had no
reasonable basis for refusing approval
of new maintenance shops. Noting that
the ALJ, in imposing a more lenient sanc-
tion, had relied on the apparent lack of
evidence of actual harm resulting from
the misconduct, Board member Ohlbaum sub-
mitted that this proceeding is not an
adjudication of a complaint for damages,
and the extent of demonstrated fin-
ancial injury to other parties is of
little significance to the Commission's
proper concern with Mahaffey's fitness
to be a licensee.
The dissent also advised that if
Mahaffey was allowed to remain a licensee,
the Commission should provide that
Mahaffey's power to approve service shops
to maintain subscriber-owned equipment
be suspended until Mahaffey adopts stand-
ards acceptable to the Commission. Board
Member Ohlbaum further suggested that the
Commission give consideration to ruling
specifically that the base station oper-
ator may not reserve to itself the author-
ity to approve the qualifications of shops
providing installation and maintenance of
I7 Mahaffey Message Relay, Inc., Dissent-
ing Statement of Board Member Daniel
R. Ohlbaum, 79 FCC 2d 411, 411-13
(Rev.Bd. 1980).
9a
subscriber-owned mobile equipment. Noting
that the Commission's new DPLMRS rules
insure inter-system equipment compati-
bility, Board Member Ohlbaum observed
that there was no apparent reason to
put in the hands of the base station
operator the power to approve mainten-
ance shops which has been abused in this
case.
I find Board Member Ohlbaum's dissent
compelling in terms of emphasizing the
gravity and basic licensing implications
of Mahaffey's misconduct. However, this
issue was not appealed to the Review
Board, and therefore the Commission's
discretion to reach this matter de novo
in considering the instant application
for review is circumscribed. 2/ I
also note that while the Commission has
assessed monetary forfeitures and allowed
private claims for damages in Section
202(a) cases, 3/ there appears to be
no Commission precedent for disqualifica-
tion of an applicant or revocation of a
license on this ground alone. in past
cases involving Section 202(a) violations,
the Commission has merely ordered that the
2/ Community Broadcasting Service, Inc.;
; Communications
Act, Section 5(d)(5); and Section
1.115(c) of the Commission's Rules.
3/ Edwards Industries, Inc., 74 FCC 2d
322 (1979); American Satellite Corp.,
73 FCC 2d 317 (1979).
10a
offensive practice be discontinued,
which is the relief and sanction which
has been ordered in this case. 4/
While I therefore am constrained
to concur in the Commission's denial of
review, I believe that the Commission
should direct the Common Carrier Bureau's
attention to this case history of main-
tenance shop certification authority
abuse and, in particular, to dissenting
Board Member Ohlbaum's cogent point that
the Commission should consider amending
the DPLMRS rules to provide specifically
that the base station operator may not
reserve to itself the authority to
approve the qualifications of installa-
tion and maintenance firms providing
service to subscriber-owned mobile equip-
ment. I also expect that the Common
Carrier Bureau will closely scrutinize
the program for inspecting and approv-
ing maintenance shops to be submitted
by Mahaffey, and that Mahaffey will
recognize that any further anticompeti-
tive conduct will put its licenses in
mortal jeopardy.
47 W.P. Keliipio v. Telephone Co.,
54 FCC 2d 529 (1975); Carter v.
AT&T, 13 FCC 2d 420 (1967).
Supreme Court, U.S,
FIiLEBD
APR 10 1982
No. 81-1660
ALEXANDER L. STEVAS
IN THE CLEF K
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1981
' MEMPHIS MOBILE TELEPHONE, INC., AND
RADIO TELEPHONE INDUSTRIES, INC.,
PETITIONERS,
Vv.
THE FEDERAL COMMUNICATIONS
COMMISSION, ET AL.,
RESPONDENTS .
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
OPPOSITION BRIEF FOR RESPONDENT
MAHAFFEY MESSAGE RELAY, INC.
NORMAN E. JORGENSEN
Kadison, Pfaelzer, Woodard
Quinn & Rossi
1229 19th Street, N.W.
Washington, D.C. 20036
(202) 452-8300
Counsel for Mahaffey Message
Relay, Inc.
QUESTIONS PRESENTED
Whether parties that failed to file
a timely appeal of a Federal Communications
Commission order granting a construction
permit in the Domestic Public Land Mobile
Radio Service, pursuant to 47 U.S.C. §
402(b), may nevertheless invoke the juris-
diction of an appellate court by claiming
that the single order is severable into
district and separately appealable pro-
ceedings.
(i)
LIST OF RESPONDENT'S
AFFILIATES
The following information is provided
pursuant to the requirements of Rule 28.1.
Mahaffey Mesyage Relay, Inc. (Mahaffey)
is affiliated with Communications Market-
ing, Inc.
(ii)
TABLE OF CONTENTS
QUESTION PRESENTED -------------- (i)
LIST OF RESPONDENT'S AFFILIATES = (ii)
GER qcecsesesessese coceeo-- ---~ (iii)
JURISDICTION ------- ------------- 1
STATEMENT OF THE CASE <-<-<------- 1
ARGUMENT ----------- oooeee------- 7
CONCLUSION ---------------------- 22
TABLE OF AUTHORITIES
Cases:
American Telephone and
Telegraph v. FCC, 602 F.
54-401 1D. Cir 1979) -- 9,17
Campos v. FCC, 650 F. 2d
(7th Cir. 1981) ----- 19
National Association of
Broadcasters v. FCC, 504
“ <. Gare
1976) qannnnnn nnn nn wns oe 4
National Association of
R latory Utility Com-
mission v. FCC, 525 F.
2d 630 (D.C. Cir.
1976), cert. denied, 425
U.S. 992(1976) ---------- 14
E
United States v. FCC, 652
F
Statutes:
47
47
47
47
47
47
47
47
47
47
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
(en banc)
D.C. Cir. 1980)
309(d) --------
309(e) --------
2342 ----------
(iv)
Page
20
14
2
2
15
Passim
Passim
6,7,18
15
15
15
16
JURISDICTION
Respondent received Memphis Mobile
Telephone Inc.'s (MMT) petition for writ
oi certiorari on March 10, 1982. This
brief in opposition is filed within 30
days of that date, pursuant to Sup. Ct.
R. 22.1.
STATEMENT OF THE CASE,
Between 1973 and 1975, Mahaffey
filed applications with the Federal
Communications Commission (FCC) for
construction permits for radio common
carrier frequencies in and around Memphis,
Tennessee. Competing applications were
filed by Airsignal International, Inc.
(Airsignal); Otis L. Hale d/b/a Mobilfone
Communications (Mobilfone) and AAA
Answerphone, Inc. - Jackson (AAA).
Beginning in 1975, Memphis Mobile Tele-
phone, Inc. (MMT) filed a series of
objections against these applications.
2
MMT also tendered for filing certain
competing applications.
By Memorandum Opinion and Order,
FCC 76-647, released August 4, 1976,
attached hereto as Appendix A, the FCC
deisgnated the applications of Mahaffey
for hearing under the docket number 20871.
The issues under consideration included
an inquiry into whether Mahaffey, Airsignal
AAA and Mobilfone had engaged in conduct
intended to prevent the filing of compet-
ing applications for radio common carrier
frequencies in the Memphis area. This
proceeding was later consolidated with
certain complaints directed against
Mahaffey by Radio Telephone Industries,
Inc. (RTI) and others, L/ with Order, FCC
77M-113, released, January 19, 1977.
1/
The complaints alleged that Mahaffey
was in violation of sections 201 and 202 of
the Communications Act of 1934. The Commis-
sion designated issues for hearing to explore
the factual basis of the alleged violations,
and to determine what sanctions against
Mahaffey, 44 any, were appropriate. Memoran-
dum 0 n and Onder, FCC 76-901, released
SenCEnbeX 30, 1976, docket number 20938.
3
The consolidated proceeding was
heard in three evidentiary "phases" in
order to promote convenience and effi-
ciency. Phase I dealt with the alleged
anticompetitive behavior of Mahaffey,
Airsignal, Mobilfone and AAA. Phase III
dealt with Mahaffey's actual application
for a construction permit. Petitioners
erroneously allege that these phases
constituted separate and distinct proceed-
ings which could be appealed in isolation
to the Court of Appeals. As noted more
fully at pages 8-10, infra., this claim
misstates the record of the proceedings.
After extensive oral hearings and
written submissions, the "Initial Decision
of Administrative Law Judge Daniel M. Head",
FCC 79D-25, released July 5, 1979, was
issued. This decision held that Mahaffey
and the respondents had not engaged in
joint conduct intended to prevent the
filing of competing applications, and that
Mahaffey's applications for radio common
carrier facilities were filed in good
faith and would serve the public interest.
Thus, the lack of any anticompetitive
conduct by Mahaffey was an important fac-
tor in the ultimate decision to grant
Mahaffey's applications.
MMT and RTI filed exceptions to the
Initial Decision. The FCC's Review Board,
affirmed the decision of the Presiding
Judge. MMT and RTI then filed an "Appli-
cation for Review", asking the full Com-
mission to overturn the decision of the
Review Board. In its Order, FCC 81-338,
released July 23, 1981, the FCC summarily
dismissed the MMT/RTI Apxlication for
Review. It is this final order that
Petitioners attempted to appeal under
Section 402(a) of the Communications Act
to the Unted States Court of Appeals for
the District of Columbia Circut.
5
Petitioners' court appeal was filed
on August 28, 1981, which was more than
30 days after the Commission's final Order
was released. Thus, pursuant to 47 U.S.C.
§ 402(b), the appeal was untimely. See
47 U.S.C. § 402(c). Petitioners claimed,
however, that the appeal was timely pur-
suant to 47 U.S.C. § 402(a).2’ Petitioners
claimed they were not appealing the grant
of Mahaffey's applications; rather, they
were only appealing those issues that
dealt with the alleged anticompetitive
conduct of Mahaffey, Airsignal, AAA, and
Mobilfone. The FCC, supported by
Mahaffey, 2/ moved to dismiss MMT's peti-
ti n on the grounds that it involved a
licensing matter and therefore could be
2/ Section 402(a) allows for a Larger period
~ to <ike an appeal than does section 402(b).
3/ Mahagfey filed a Memorandum in Support
of Motion to Dismiss urcth The Court of
Appeals, attached hereto as Appendix B.
6
appealed only under Section 402(b) of the
Communications Act.
The United States Court of Appeals
for the District of Columbia Circuit agreed
with the Commission and Mahaffey. On
November 10, 1981, it granted the Com-
mission's motion to dismiss MMT's peti-
tion for appeal, stating that "the order
that petitioners seek to have us review
was plainly an order granting applica-
tions for construction permits and was
thus subject to appeal only under 47
U.S.C. § 402(b)(1), (6) (1976). Peti-
tioners did not appeal within the thirty
(30) day period set by id. § 402(c).
Their appeal is therefore untimely."
Order, No. 81-1973 (Nov. 10, 1981)4/
. MMT and RTI now petition this court
for a writ of certiorari, again claiming
that the phases of the proceeding below
4/ This Onder is attached hereto as Appendix C.
are severable and separately appealable,
and that the issues they wish to appeal
are governed by 47 U.S.C. § 402(a). A
careful examination demonstrates that
these claims are without merit.
ARGUMENT
Section 402(c) of the Communications
Act, 47 U.S.C. § 402(c), states that
appeals under Section 402(b) “shall be
taken by filing a notice of appeal with
the court within thrity days from the date
upon which public notice is given of the
decision or order complained of" (Emphasis
added). The Commission Order which MMT
and RTI seek to have reviewed became ef-
fective on July 24, 1981. Thus, the
appeal was due to be filed with the Court
of Appeals on or before August 23, 1981.
Petitioners' appeal was filed on August
28, 1981.
8
The failure of MMT and RTI to timely
file their appeal affects the basic juris-
diction of the Court of Appeals. Rule 26(b)
of the Federal Rules of Appellate Proce-
dure specifically provides that:
{T]he Court may not enlarge
the time for filing a notice
of appeal.... Nor may the
Court enlarge the time pre-
scribed by law for filing a
petition to enjoin, set aside,
suspend, modify, enforce or
otherwise review, or a notice
of appeal from an order of an
administrative agency....
Petitioners have attempted to cir-
cumvent this basic jurisdictional require-
ment by claiming that they are only appeal-
ing one of the issues adjudicated below,
and that this issue does not concern a
licensing matter. Furthermore, they
erroneously allege that the three "phases"
of the proceeding below were actually
distinct, separately appealable proceed-
ings, and that the particular issue they
seek to have reviewed may be appealed
under 47 U.S.C. § 402(a). These are all
untenable contentions which do not cor-
rectly reflect the record of the proceed-
ings below. The Commission's findings
in phases I and III are not susceptible
of appellate review because final orders
of administrative agencies cannot be
divided into distinct appealable matters.
American Telephone and Telegraph Co. v.
FCC, 602 F. 2d 401 (D.C. Cir. 1979).
Petitioners submit that the phase I
issues are reviewable under § 402(a)
while the phase III issues fall under
§ 402(b). Petition at 27. The applic-
able case law dispells this claim. A
given FCC order may not be reviewed under
both sections 402(a) and 402(b).
National Association of Broadcasters v.
Fcc, 554 F. 2d 118 (D.C. Cir. 1976).
Petitioners' attempt to separate the FCC
10
order in question violates this basic
principle.
Even if the court were to accept
Petitioners' basic premise that a given
order could be appealable under both Sec-
tions 402(a) and 402(b), it must still
reject Petitioners appeal on the facts
of this case. The findings in phase I
were actually an integral part of a
licensing procedure. Such a procedure
may be reviewed only by means of a pro-
per appeal (under § 402(b)) of the FCC's
grant of Mahaffey's application for con-
struction permits. Thus, contrary to
Petitioners' claim, the phase I findings
cannot be reviewed separately under
§ 402(a) because they were merely sub-
sidiary findings; they did not constitute
a final order over which the court of
appeals has jurisdiction.
MMT and RTI ontend that the Commis-
sion divided thé proceedings into separate
phases because it realized that each
11
phase was of a distinct nature, phase I
being an investigation and phase III
being a construction permit application.
Petition at 12-13. This claim misstates
the record of the proceedings. The
separate phases, to which petitioners
repeatedly refer, represent a division of
the proceedings for evidentiary purposes.
The consolidated multi-party hearing was
separated into three parts simply for
administrative convenience and to avoid
forcing parties to attend hearing ses-
sions which dealt with issues in which
they had no particular interest. At the
prehearing conference, the presiding
judge stated explicitly that the struc-
turing of the proceedings into phase did
not mean that the matters in issue were
considered to be severable. The trans-
cript of the prehearing conference,
attached hereto as appendix D, contains
the following:
JUDGE NAUMOWICZ: .. . I do
not think that anyone would
12
object if we set up a hearing
schedule for issue 1 [the so-
called joint anticompetitive
conduct issue] which would
simply cover issue 1, but
recognizing that that the ingtiel
decision on issue 1 wou!
art of the overall initial
ecision in this consolidated
pr oceeding :
The transcript demonstrates conclusively
that the proceedings were divided for
purposes of administrative convenience,
not because the Commission viewed them
as separate proceedings.
MMT and RTI contend that the Commis-
sion itself recognized the "separateness"
of the three phases, based upon the fact
that their standing as parties in phase
III was terminated while standing in
phase I was retained. Petition at 12-14.
But, the termination of MMT's standing in
phase III simply reflected the fact that
MMT had a legitimate, cognizable interest
in phase I issues (based upon its status
as the alleged victim of anticompetitive
13
conduct), but not in the phase III issues
(based upon the fact that MMT voluntarily
withdrew its competing application).
Both phases I and III involved radio
licensing. MMT simply had no legally
cognizable interest in the phase III
radio licensing issues. Denying MMT
standing in this regard in no way con-
stituted a recognition by the FCC that
the two phases were of a distinct nature
for purposes of judicial review.
Petitioners' claim that the phase I
issues were investigatory in nature, and
may be separately under section 402(a).
However, the record indicates that phase
I was part of the Commission's inquiry
into the desirability of granting Mahaf-
fey's application, and not a separate
investigation. Hearings concerning
alleged anti-competitive behavior are an
integral part of the FCC's licensing
function - they are held to determine
14
whether an applicant is qualified to be
a licensee. The question of anti-
competitive behavior is relevant to the
determination of whether a grant of a
license application would be in the pub-
lic interest, since the public interest
has an “antitrust component" .2/ See, e.g.,
National Association of Regulatory Utility
Commissioners v. FCC, 525 F.2d 630, 636
(D.C. Cir. 1976), cert denied, 425 U.S.
992 (1976).
It is important to note that the
issues in phases I and III derived from
a single designation order. 4/ The ulti-
mate issue contained in the designation
order in Docket Number 20871 sought:
To determine in light of the
evidence adduced pursuant to
issued (1) (2) and (3) above7/
5/ However, it is not the function of the FCC
~ to enforce the antitwst Laws. United States
v. FCC, 652 F. 2d 72, 87-88 (D.C. Cin. TIBO)
(en banc).
6/ See Appendix A, Docket Number 20871 (August 4,
zo 1976), 41 Fed. Reg. 32644 (1976).
7/ The referenced issues (1), (2) and (3) inckude
~ the phase I issues.
15
whether the public interest,
convenience and necessity will
be served by a grant of any or
all of the applications of
Mahaffey Message Relay, Inc. in
whole or in part.
Based upon this designated issue, it is
clear that the phase I inquiry involved
a radio licensing matter, squarely within
the purview of section 402(b) for purposes
of judicial review. Moreover, the legal
authorities under which the Commission
designated the hearing were sections 309(d)
and (e) of the Communications Act, 47
U.S.C. §§ 309(d), ce) .2/ Those sections
constitute the essence of the FCC's radio
licensing function - to consider applica-
tions for construction permits or licenses.
8/ The Commission referred only to Sections 309(d)
and (e) as its authority to designate for
hearing see Appendix A, at § 16. Ths, there
4s no basis for Petitioners’ assertion, at
pages 16-17 of the Petition, that the hearing
on the phase I issues was conducted pursuant
to the FCC's investigative on adjudicatory
powers under 47 U.S.C. § 403 on 47 U.S.C. §
208, and was not related to the Commission's
Licensing power. Such an assertion is at
odds with the Language of the onder.
16
The jurisdiction of the court of
appeals can be invoked "to enjoin, set
aside, suspend (in whole or in part), or
to determine the validity of - (1) all
final orders of the [FCC]...." 28 U.S.C.
§ 2342 (Jurisdiction of the Court of
Appeals) (Emphasis added). This fact
provides further support for the proposi-
tion that Petitioners cannot be granted
appellate review of phase I findings only,
since those findings did not represent a
“final order". Rather, they were merely
factors in the Commission's decision to
grant Mahaffey's application. Thus, since
the grant of Mahaffey's application was
not challenged (since by doing so Peti-
tioners would lose their argument that
they were not appealing a licensing
decision), MMT and RTI are challenging a
mere subsidiary finding, which is not
susceptible of appellate review.
17
The United States Court of Appeals
for the District of Columbia Circuit has
previously ruled that a challenge to a
finding contained in an FCC order that
does not contest the order itself is not
susceptible of judicial review. American
Telephone and Telegraph Co. v. FCC, 602
F. 2d 401 (D.C. Cir. 1979). In that case
the court found that:
-.-Congress explicitly limited
our review to agency orders. If
we were to construe that term
to encompass every agency move
which might cause someone future
harm, we would in effect be
reading the congressional limi-
tation out of existence....
Such a reading would be entirely
implausible. It would cause
considerable mischief. It would
in effect permit the Courts of
Appeals at the whim of parties
not otherwise aggrieved to
scrutinize administrators'
passing remarks, overturn their
subsidiary factual determina-
tions, and stalk “heir every
step along alternative paths of
reasoning. 602 F. 2d at 409.
In light of this precedent, the Petitioners
cannot disclaim an interest in appealing
18
the grant of the authorization of Mahaffey,
and still seek to challenge the findings
pertaining thereto.
In the proceedings below, the FCC
granted Mahaffey's application for con-
struction permits. Petitioners may attack
an order of the Commission that grants
such an application only in the manner
prescribed by Congress: by the filing of
a notice of appeal in the United States
Court of Appeals for the District of
Columbia Circuit, under Section 402(b) of
the Communications Act, within thirty days
of the public notice of the Commission's
final order. See 47 U.S.C. § 402(c).
Although Petitioners filed in the correct
court, / their request for appellate review
9/ Petitioners contend that the distinction
between sections 402(a) and 402(b) is one of
forum Selection, and that since they sought
review in the United States Court of Appeals
for the District of Columbia Circuit, which
may be a proper forum for either a 402(a)
on a 402(b) appeal, no party can complain
that they are guilty of forum shopping.
Mahaffey does not dispute this claim. The
problem 46 that the claim is f<rivilous -
the 4ssue 45 not one of forum Shopping but
nather one of timeliness. It 4 insignifi-
cant that the appeal was filed in the proper
court since it was not filed on time.
19
was not made in the requisite time. MMT
and RTI cannot escape the consequences of
an untimely filing by claiming the order
may be reviewed under section 402(a).L0/
Since a timely appeal was not taken, the
court of appeals did not have jurisdiction
to review the order. The petition for
review was property dismissed.
The two principal authorities relied
upon by Petitioners provide no support
for the position they are advocating. At
pages 26 through 28, Campos v. FCC, 650
F. 2d 890 (7th Cir. 1981), is cited as
authority for the proposition that section
402(b) must be narrowly construed. Peti-
tioners can find no comfort in this prece-
dent because the case is clearly distin-
guishable on its facts. Radio common car-
rier licenses were not at issue in Campos.
10/ Section 402(a) petitions must be filed within
— " 60 days of the date of public notice. Peti-
tioners ee on ee
would have been timely under § 402(b)
20
Rather, individuals were challenging re-
strictions concerning the issuance of
commercial operators licenses.1Y Such
licenses are not clearly included in any
of the categories enumerated in section
402(b). In contrast, the instant case
involves radio licensing and thus falls
precisely within a section 402(b) category.
Thus, section 402(b) need not be construed
broadly to conclude that it governed Pe-
titioners' appeal.
At pages 28 through 29, Petitioners
cite at length excerpts from Scripps-
Howard Radio v. FCC, 316 U.S. 4 (1942),
for the proposition that the distinction
between sections 402(a) and 402(b) is one
of forum selection. However, as discussed
at page supra, forum selection is not
an issue here. The issue is one of time-
liness, and the fact that review was
11/ An operators License is issued to certify
——~ that an individual is qualified to perform
various technical and engineering tasks.
21
sought in the proper court does not give
that court jurisdiction to consider an
untimely appeal.
Petitioners also contend that the
dismissal order of the court of appeals
was erroneous as a matter of law because
it unjustly deprived them of their right
of judicial review. This is a frivilous
Claim. Petitioners were not deprived of
their right to judicial review - they had
thirty days in which to file their appeal.
By missing the filing deadline they waived
their right to judicial review.
Finally, petitioners submit that the
court of appeals miscontrued the applic-
ability of section 402(b). Petition
at 38-39. They contend that they were
not “persons aggrieved" or persons whose
interests were “adversely affected" by
any order of the Commission granting or
denying any application. 47 U.S.C.
§§ 402(b)(6). However, the record clearly
22
demonstrates that petitioners' were indeed
"aggrieved" on “adversely affected" by
the Commission's grant of Mahaffey's
application. Since only final orders of
the FCC can be appealed, and since the
final order in this case granted a license
application, MMT and RTI cannot legiti-
mately claim that the order they appealed
did not grant or deny an application.
See pages 9-10, supra. Furthermore,
MMT filed competing applications for many
of the frequencies in the Memphis area.
The grant of Mahaffey's application
directly affected MMT's capability to pro-
vide radio common carrier services in the
Memphis Market.
CONCLUSION
For the reasons stated herein,
Mahaffey believes that the United States
Court of Appeals for the District of
Columbia Circuit properly dismissed MMT
23
and RTI's petition for appellate review.
Hence, a writ of certiorari should not
issue to the judgment and orders of the
court of appeals.
Respectfully submitted
Norman E. Jorgensen
Kadison, Pfaelzer,
Woodard, Quinn &
Rossi
1229 19th Street, N.W.
Washington, D.C. 20036
(202) 452-8300 ,
$$$
APPLNDIX A
Before the c
FEDERAL C/MMUNICATIONS COMMISSION FCC 76-647
Washington, D.C. 20554 41431
In the Matter of ;
MAHAFFEY MESSAGE RELAY, INC. ) Docket No. 20871
Memphis, Tennessee ) File No. 8331-C2-P-(8)-73
) 8557-C2-P-(4)-73
: 21635-CD-P-75
MEMPHIS MOBILE TELEPHONE, INC. ) Docket No. 20872
Memphis, Tennessee ; File No. 20003-CD-P-76
For Construction Permits for facilities ) 7 .
in the Domestic Public Land Mobile Radio )
Services to operate in Memphis, Tennessee. )
MEMORANDUM OPINION AND ORDER .
pa Adopted: July 7, 1976 3 Released: August h, 1976
By the Commission: Commissioner Robinson absent.
1. The Comnission hae under consideration the above--aptioned
mutually exclusive applications of Mahaffey Message Relay, Inc.,
(Mahaffey) and Memphis Mobile Telephone, Inc. (MMT) for construction
permite in the Domestic Public Land Mobile Radio Service (DPLMRS) in the
Memphis, Tennessee metropolitan area. Also before the Couwnission are
various pleadings filed by MiT directed against Mahaffey °/ and two of the
or Leave to Intervene, Petition to Deny and Petition for
Waiver of the Cut-Off Rules filed by MMT May 19, 1975; Complaint,
Petition to Deny and Motion to Dismiss Applications filed by MMT
October 21, 1975; Mahaffey's Oppositions and MMT's replies. MMT's
various pleadings do not fully satisfy our procedural rules and
have been challenged on thie ground; however, es indicated in our
subsequent discussion, they treat matters of concern. Consequently,
we accept them as informal objections pursuant to Section 1.41 of
the Commission's Rules, and will deal with them on their merite.
- _~
— —
.
2a .
other applicants 2/ for frequencies in this erea; a "Motion for Re-
consideration” filed by MMT August 26, 1975; and an “Application for
Review" filed by MMT November 3, 1975.
2. MMT alleges that during the spring of 1973 - soon efter
it informed Mahaffey of ite intention to seek state certification to
radio common carrier service - Mahaffey and Otis Hale d/b/a
rules =/ would prevent it fros filing any subsequent competing
ications. MMT alleges further thet Maheffey's motivation
lack of good faith in filing ite applications ie evidenced by «
subsequent agreement among all of the other Memphis applicants for
radio common carrier frequencies which eliminated frequency conflicts
while still blocking MMT's mga eA of applying for 450 Miz
frequencies. In abandoned six the twelve
cations but
ite leter-filed nt
ey's filings did +
Riis Te y>
satisfy the need provisions of Section 21.516 of the Rules 5/,
should therefore be rejected without « hearing.
), Tennessee. It appears that all of Mahaffey's stations
eervice primarily to Meaphis metropolitan area subscribers.
with another Seinces cum cevbtcatale So Goummes tee
filing within days after the public notice listing the first
prior-filed application, with which subsequent applications are in
conflict, as uaving been accepted for ‘tiling.
5/ Section 21.516 requires an applicant for additional facilities to
show that there is an unsatisfied need for the additional service,
and that the applicant's present facilities are inadequate to perve
that need.
applican
AAA Anserfone, Inc. - Jackson; and Airsignal
International, Inc.) 6/ respondents to this proceeding (issue 1). We assume
in the present hearing. In the event that they do not participate, it
inferences about the bona
:
E
:
i
5
|
i
|
3
J
to the Memphis metropolitan service
low-band paging frequency (33.58
In December, 1975, the applicants
3
ef
fi
ft;
i
requested that various proposals for conflicting frequencies be deleted
from their applications (see para. 6 below). Meatwhile, on May 4, 1975,
MMT had received ite Tennessee state certification, and on May 19,
1975, Mahaffey filed two applications for the frequencies
in the service area (43.58 and 43.22 Miz). On July i, 1975, mT
filed a competing application for 43.58 Miz. Airsignal also filed an
application for this frequency, but dismissed it in December, 1975.
“5S. On Mey 19, 1975, Mi tendered an application for four
of the 450 Miz Mahaffey had applied for in May, 1973. At
the same time, MMT Petitioned for Leave to Intervene, to Deny Mahaffey's
450 Miz applications, and requested a waiver of the cut-off rules.
MIT's tion was returned as untimely filed after preliminary staff
review footnote 4%). On August 28, 1975 MMT resubmitted its
450 Miz application with a "Petition for Reconsideration". The applica-
tion was Sgain returned, and on November 3, 1975, MMT submitted an
®, for Review" apparently under the misconception that the
second return of its application was the diemissal by delegated authority
of its reconsideration request 7/. Because we grant part of the
@7 The epplications are: AAA - F.C.C. File No. 20032-C2-P-(4)-74;
Airsignal - F.C.C. File No. 20076-C2-P-(4)-74; Otis Hale - F.C.C.
File No. 8942-C2-P-(2)-73.
we
Section 21.28(d) of the Rules provides for the return without pre-
judice of received after the dates prescribed in Section
21.30(b) of the Rules. ‘This application will be eligible for
refiling only after a final decisio . rendered by the Commission
with respect to the present applicai.ons or after the diomissal or
removal of the present applications from this hearing.
relief requested in MYfT's May 19, 1975 "Petition to Intervene", it is
included in our discussion of MMI's other informal pleadings directed
at Mahaffey's filings. Other than this, however, there is no reason
to grant MMT's requests and they will therefore be denied.
THE AGREEMENT
G. On December 8, 1975, AAA, Airsignal, and Mahafley amended
the nature of the service proposed by the amending @pplicants, and ace
not
consistent with the public interest 9/
The applicants participating in the present agreement submitted a
recitation ofthe circuustances leading to the agreement; nonetheless,
§7 WF -c.c. 24 556 (1973).
9/ Ia at 558.
consideration of avoiding a hearing voiced by the 450 Miz applicante
must be considered in the context of MMT's allegations regarding their
alleged cooperation in blocking MMT's possibility of entry into this
may ,Accordingly, we are adding an appropriate issue to explore
the background of the agreement.
AAA
8. On November 5, 1975, MMT filed a "Petition to Deny"
AAA's application stating that although AAA's application represents
that it intends to locate and serve the residents of DeSoto County from
Southaven, Mississippi, AAA in fact intends to extend its marketing
ee ee oe one SS eae
and ite Mississippi Public Service certification. Further, MMT
contends, AAA does not show a need for four new 450 MHz frequencies
and its proposed one-way paging frequency on the basis of the small
ihe contanplated hearing” conduct. Accordingly, we will deny MMTI's
“Petition to Deny” in all other respects.
9. On March 18, 1976, MMT filed an amended “Petition to Deny”
Airesignal's application. MMT contends that Airsignal misrepresented
ite intended service area when it filed for frequencies at West Memphis,
Arkansas, since it fully intended to serve Western Tennessee and Memphis;
Cp See anes \y Sane ee to restrain
trade in this service area; and that Airsignal did not have an Arkansas
Public SePvice Commission tapsc) certificate when it filed ite applica-
tion in June, 1973, and that a subsequent application before the APSC
has been dismissed for failure to prosecute. Airsignal relies upon
state certificat tes t
ceo Gianiaash of Dae caghhantien ty M058 uno Gho Seauit of its decision
not to prosecute the application rather than an attempt to defraud this
Commission. MMT's petition is insufficient to raise character issues
against Airsignal; however, as with AAA, we desire a further investigation
into Airsignal's participation in the alleged anti-competitive conduct
Therefore, we will deny MMT's “Petition to Deny" except to the extent
indicated above.
10. MMT filed protests against both Mahaffey's paging and
450 Miz applications. MNT states that Mahaffey, in collusion with
conjunction with the Commission's requirement that an applicant obtain
MMT alleges that Mahaffey
:
.
i
|
7
Genial of Mahaffey's applications or, in the alternative, that it be
allowed intervention pursuant to Section 1.223(d) of the
as a competing applicant with Mahaffey's 450 Miz applications by granting
ite request for a waiver of the cut-off provisions of the rules.
MMT complains further that Mahaffey's applications also violate
Section 1.726 of the Rules 1)/ and deliberately committed acts of
Giscrimination and preference. Moreover, MMT urges
that Mohaffey disregarded Section 21.516 of the Rules when it filed
for the two additional one-way frequencies for Collierville and
Munford with so few subscribers using those channels.
22. Aside from the limited intervention we are
E
rules. MMT's request essentially rely upon alleged violations of
Section 21.516 of the Rules, and Mahaffey's participation in the .
alleged anticompetitive activity. As indicated, these matters will be
explored in the hearing ordered herein and MMT will be able to
ij” Section 1.223(4) applies to intervention by parties in interest
after applications have been designated for hearing. Rather than
require MMT to request formal intervention after this Order is
released, we will waive the requirement and allow MMT to intervene
and present evidence relating to Mahaffey's 450 Miz applications.
11/ Section 1.726 requires that formal complaints alleging such matters
as discrimination or unreasonable preference must specify the carrier
and a description of the particular acts relied upon which constitute
a violation of the Communications Act. - ~_
gusthetgute thereon. Finally, we will deny MAT" request for a
wai
tim of anti-competitive conduct.
Moreover, if we granted MMT's request it in turn would be cut off
12. We agree with MMT that Mahaffey's channel-loading
two-way facilitie
40 F.C.C. 24 329 (Rev. Ba. 1974).
a 13. Additionally, we are not persuaded that sufficient
need exists for the additional low-band one-way facility proposed
at Collierville, Tennessee by Mahaffey. And we note that Mahaffey,
has been granted the additional use of one-way facilities in the
game general service area. 12/ Therefore, we will require that
Mahaffey under issue (3) support the need for this additional one-way |
facility and demonstrate the incapability of the existing one-way and
two-way facilities to provide the proposed service.
14. We question Mahaffey's good faith in originally filing
for nearly all the 450 Mis frequencies available, and especially the
filing of the two additional applications for the only r
: immediately after MMT obtained its :
- pequired state authorization. Consequently, we will include an issue
to determine the facts and circumstances surrounding Mahaffey's
filing of-additional applications for nearly all of the available 450
Miz frequencies and the lowband one-way frequencies in the Memphis
metropolitan market.
|
:
:
127” Mahaffey was granted potential shared - of frequency 158.72
Miz with Aireignal in Docket 19801 (FCC 754-2695, released October
3, 1975, recon. denied FCC 75R-434, released Nov. 25), and its
cpenionssen for 43.22 Miz at Munford was granted July 8, 1975
- ie ad
‘
=
, 15. In view of the foregoing, the Commission finds that
Mahaffey Message Relay, Inc., and Memphis Mobile Telephone, Inc., are
legally, technically, financially, and otherwise qualified to receive
a grant of their above-captioned applications except for the issues
16. Accordingly, IT IS ORDERED, That promeah to Sections
309(4) and (e) of the Communications Act of 1934, as amended, the
applications of Mahaffey Message Relay, Inc., and
- Memphis Mobile Telephone, Inc., are designated for hearing in a
consolidated guoceesing upon the following issues:
"(1) To determine whether Mahaffey Message Relay, Inc.,
AAA Anserphone-Jackson, Airsignal International, Inc.,
and Otis Hale 4/b/a Mobilephone have jointly engaged
in conduct intended tp prevent the filing of competing
applications for radio common carrier frequencies in
the greater Memphis, Tennessee metropolitan area.
(3) To determine the nature and extent of the services
now rendered by Mahaffey Message Relay, Inc., and the
capacity of ite existing facilities in light of Section
21.516(b) of the Commission's Rules and Regulations.
(4) To determine the nature and extent of the services
proposed by Mahaffey Message Relay, Inc., and Memphis
Mobile Telephone, Inc.
(5) To determine the total area and population to be served’
“by Mahaffey Message Relay, Inc., and Memphis Mobile
Telephone, Inc., within the 43 dbu contour of each -
proposed staticn based upon the standards set forth 4
Section 21.504 of the Commission's Rules and Regulations,
and to determine the need for the proposed service in
+ CS veh.
(6) To Goteruiae, in light of the evidence adduced pursuant
‘ to issuee (1)(2) and (3) above, whether the public
interest, convenience and necessity will be served by a
grant of any or all of the applications of a Message
Relay, Inc., in whole or in part. °
—
(7) To determine, in consideration of all the evidence
adéuced under the proceeding issues, whether the
interest, convenience or necessity will be
served by a grant of either the application of Mahaffey
Relay, Inc., or the application of Memphie
Mobile Telephone, Inc.,for authority to operate on
43.58 Miz. ‘
7: I? IS FURTHER ORDERED, That the burden of proof on
Somes Q), OS on S Tp Giesed ce Ge sexgactive pevttce exnat
therein, and on issues (4) and (5) the burden of proof is placed
jointly on the competing applicants named under those issues.
18. IT 16 FURTHER ORDERED, That the hearing ordered herein
shall be held at a place and time to be specified in a subsequent
order of the Chief Administrative Law Judge.
19. IT IS FURTHER ORDERED, That the Chief, Common Carrier
Bureau is made a party to the proceeding.
20. IT 18 FURTHER ORDERED, That AAA-Answerphone Inc.-Jackson;
Aireignal International, Inc.; and Otis Hale d/b/a Mobilephone ARE
MADE respondents to this heariag for the purpose of participating with
respect to iasue (1) above.
21. I? IS FURTHER ORDERED, That the parties herein may
avail themselves of an opportunity te be heard by filing with the Commission
pursuant to Section 1.221(e) of the Rules wie twenty (20) days of the
release date of this Memorandum Opinion and Order, a written notice
stating an intention to appear on the date set for hearing and present
evidence on the issues specified.
FEDERAL GOMMUNICATIONS COMMISSION
Vincent J. Mullins:
Secretary
“>
- * lda _
APPENDIX B
IN THE
UNITED STATES COURT OF APPEALS
FOR THE i
DISTRICT OF COLUMBIA COURT
MEMPHIS MOBILE TELEPHONE, INC. )
and ;
RADIO TELEPHONE INDUSTRIES, INC. ;
(Petitioners) }
v. ; Case No. 81-1973
FEDERAL COMMUNICATIONS COMMISSION }
and
UNITED STATES OF AMERICA }
(Respondents)
MEMORANDUM OF MAHAFFEY
SUPPORT OF MOTION TO DISHISS
1/
Mahaffey Message Relay, Inc. (Mahaffey), by its attorneys,
hereby files a Memorandum in support of the "Motion to Dismiss"
(Motion) of the Federal Communications Commission (FCC) directed
against the “Petition for Review" (Petition) of Memphis Mobile
Telephone Company, Inc. (MMT) and Radio Telephone Industries, Inc.
(RTI) in the above cause. The following is respectfully shown:
1/ Mahaffey timely filed a "Petition for Leave to Intervene”
inthe proceeding on September 17, 1981.
* lla
Unitehn States Court
FOR THE DISTRICT OF COLUMBIA
: |
No. 81-1973 |
APPENDIX C
Memphis Mobile Telephone, Inc., et al
Petit
Vv.
Federal Communications Commission and
United States of America,
Respondents
BEFORE: Wald, Mikva and Edwards*, Circuit vuu
ORDER
Upon consideration of respondent's motion to dismiss,
_intervenor's memorandum in support thereof, petitioner's
response, and. respondent's and intervenor's replies, it is
ORDERED by the Court that the motion is granted and the
petition for review is dismissed. The order that petitioners
seek to have us review was plainly an order granting applications
for construction permits and was thus subject to appeal only under
47 U.S.C. § 402(b) (1), (6) (1976). Petitioners did not appeal
within the thirty (30) day period set by id. § 402(c). Their
appeal is therefore untimely. ,
Per Curiam
\
\
\
*Circuit Judge Edwards did not participate in this order.
—- * — a hg Se: oT ye ws ene
~—UNIT.D STATES OF Ah.ERICA
APPENDIX D
FEDERAL COMMUNICATIONS COMMISSION
Stenographic Transcript Of
HEARINGS
IN THE MATTER OF: MAHAFFEY MESSAGE RELAY, INC.
Memphis, Tennessee Docket No. |
MEMPHIS MOBILE TELEPHONE , oa
Memphis, Tennessee Docket ‘No. |
RADIO TELEPHONE INDUSTRIES, INC. Docket No. |
PLACE: WASHINGTON, D.C.
DATE: January 19, 1977
VOLUME: 1
PAGES: 1 thru 59
FEDERAL DATA RETRIEVAL SYSTEMS, INCORPORATED
4931 Bethesda Avenue
Bethesda, Maryland 20014
Beers BB &BB&BHS RB RSF E KBE Swe we kB ew we OH
l3 a
you can get out of the way today, that is fine.
MR. MAYER: Yes, sir, but I just wanted to make you
aware that this is proceeding at the same time as the interro-
gatories.
JUDGE NAUMOWTCZ: Anything else we should discuss
before we go about sett:ng up dates?
MR. BECKER: sour Honor, do you contemplate any
procedure whereby issue 1 could be disposed of expeditiously?
JUDGE NAUMOWICZ: Let me see. Issue l.
MR. BECKER: That is the only issue which involves
the Resvondent-parties, the parties labeled as Respondents in
the hearing order. ,
Those Resoondent-parties do not have applications in
this proceeding and are only in the proceeding for issue 1 and
one of your earlier decisions indicated there might be a possi-
bility of a procedure whereby issue 1 could be handled expedi-
tiously.
JUDGE NAUMOWICZ: I ama little bit reluctant at this
time to use the word “expeditiously” in the sense that we would
contemplate an early decision on issue 1 rather than the other
issues.
The Commission has had occasion to address itself to
that quite recently in the RKO-New York proceeding. It indicated
it did not want to do that.
However, I do not think that anyone would object if
F. D. R. Sysrems, inc.
Seee e® en w@ we w
6 S&S &
Se Feeesuesugaus
l4a
we set up a hearing schedule for issue 1, which would simply
cover issue 1, but recognizing that the initial decision on
In other words, we may get issue 1 out of the way,
let us say, in 90 days, but you would not expect a decision on
that as if it were the only issue in the case. It would be
On proceeding with the evidence.
JUDGE NAUMOWICz: Does anybody have any problem with
cutting issue 1 out for the Purpose of taking evidence on it?
MR. JORGENSEN: Well, I had a Suggestion for a Proce-
dure, Your Honor, that accords with your ruling or at least the
subject discussed here.
I foresaw the entire hearing, once consolidated, as
Sort of a three Part hearing. fr would agree with mr. Becker
that issue 1 Should be heard first.
The second Part of the hearing, I would it to be the
docket that deals with Radio Telephone Industries, Inc. and
allow the comparative Proceeding to be the third Phase of the
I do not know how that Strikes other parties, but
it seemed like @ very logical and Sensible division, to me.
MR. MAYER: The Bureau would have no objection to
=A. =
,weeeeenmeseweeseesee@eaeeaeaeesee e
15a
that procedure, Your Honor.
MR. BLOOSTON: Your Honor, as I envision what Mr.
Jorgensen has suggested, it would be in accordance with your
earlier statement that the parties not interested in other
issves may absent themselves.
As I see the proceeding, after you take evidence on
issue 1 and complete that phase, then the Respondents from then
on would not have to participate in any other phase of the
proceedings if they did not want to.
JUDGE NAUMOWICZ: That would seem so to me, Mr.
Blooston, but again chat would be up to each one of the parties
as to what phases they want to be in and what phases they want
to be out of. They have a right to be in everything.
All right. Shall we go off the record and discuss
scheduling?
(Nodding of heads.)
JUDGE NAUMOWICZ: We are off the record now.
(Discussion was held off the record.)
JUDGE NAUMOWICZ: Back on the record.
Mr. Miller, perhaps you would like to note your
appearance at this time.
MR. T. MILLER: Yes. I am Terrence Miller. I am an
officer of Memphis Mobile Telephone and Radio Telephone Indus-
tries in Memphis, Tennessee.
JUDGE NAUMOWICZ: All right. Let the record show tha‘
FP. 5. R. Sysrems, inc.
Office Court, U.S. }
FILED
MAY @° 1992
No. 81-1660
STEV4s,
ss CLERK
Iu the Supreme Cont of the United States
OcTOBER TERM, 1981
MEMPHIS MOBILE TELEPHONE, INC., ET AL.,
PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TC
THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
MEMORANDUM FOR THE FEDERAL RESPONDENTS
IN OPPOSITION
REx E. LEE
Solicitor General
Department of Justice
Washington, D.C. 20530
(202) 633-2217
TABLE OF AUTHORITIES
Cases: Page
American Telephone & Telegraph Co. v. FCC,
gf reer eoee
Campos V. FCC, 650 F.2d 890 2.02... ceeneeeenee
Mahaffey Message Relay, Inc., 79 F.C.C.2d 399...... 2, 3,
Mahaffey Message Relay, Inc., 79 F.C.C.2d 414...... 2,
ed
SC
wn
am
A as
i i kL masvipinsonedle 4,5
Ce 4
4S, CQ een
47 U.S.C. 402(b) (6) -..................... sieeientlinaemmniionntiin 5,
47 U.S.C. 402(c) ............... siaicnlecentiaigenitbiccignensiiitiaieitan
Miscellaneous:
oS
&
eS
a
eonwh
In the Supreme Court of the United States
OCTOBER TERM, 1981
No. 81-1660
MEMPHIS MOBILE TELEPHONE, INC., ET AL.,
PETITIONERS
Vv.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
MEMORANDUM FOR THE FEDERAL RESPONDENTS
IN OPPOSITION
1. In 1973, four radio common carriers filed ap-
plications with the Federal Communications Commis-
sion (“FCC”) seeking permits for construction of
two-way mobile communication base stations in the
Memphis, Tennessee, area.' These applications were
1The four carriers were Mahaffey Message Relay, Inc.,
AAA Anserphone, Inc.-Jackson, Airsignal International, Inc.,
and Otis L. Hale d/b/a Mobilfone Communications. A two-
way mobile communication base station is a transmitter at a
fixed location designed to provide two-way communications
with mobile transmitting units, such as car telephones and
two-way radios.
(1)
mutually exclusive because of frequency conflicts
among them. In 1975, one of these radio common
carriers, respondent Mahaffey Message Relay, Inc.
(“Mahaffey”), and the petitioner Memphis Mobile
Telephone, Inc. (“MMT”) also filed mutually exclu-
sive applications for one-way signalling stations in
the Memphis area.* Mahaffey Message Relay, Inc., 79
F.C.C.2d 399, 400-402 (1980).* Also in 1975, the four
two-way applicants eliminated the frequency conflicts
among their applications by agreement. MMT there-
after filed pleadings with the FCC claiming that the
four applicants had acted anticompetitively in reach-
ing that agreement.* In 1976, the Commission des-
ignated Mahaffey’s two-way applications and the con-
flicting one-way applications of Mahaffey and peti-
tioner MMT for hearing. The issues designated were
whether the four applicants for two-way permits had
engaged in the anticompetitive activities that MMT
had alleged, and the merits of the various one- and
two-way applications. 41 Fed. Reg. 32644, 32646
(1976).° In a separate order, the Commission des-
2A one-way signalling station is used to transmit com-
munications by radio to portable “pagers” or “beepers.”
8’ The decision of the Federal Communications Commission
Review Board is reported at 79 F.C.C.2d 399.
* Petitioners considered themselves potential competitors
of the four two-way applicants, although they had no com-
peting applications pending at the time of agreement. See
Mahaffey Message Relay, Inc., 79 F.C.C.2d 414, 433-435
(1979). (The Initial Decision of the Administrative Law
Judge is reported at 79 F.C.C.2d 414.)
5 Although the two-way permit applications of the other
three applicants were not directly before the Commission in
the proceeding initiated (see 79 F.C.C.2d at 400), the appli-
cants were joined as respondents by the Commission so as to
afford them an opportunity to be heard in response to the
ignated for hearing certain complaints filed by peti-
tioner Radio Telephone Industries, Inc. and others
that respondent Mahaffey had refused to provide
service to certain customers. 41 Fed. Reg. 44737
(1976).
An Administrative Law Judge ordered these cases
consolidated. He divided the consolidated proceeding
into three phases “as a matter of procedural conven-
ience,” so that parties could attend only those portions
of the hearings in which they had an interest. 79
F.C.C. 2d at 417. Phase I dealt with MMT’s allega-
tions of anticompetitive conduct; Phase II with the
complaints about Mahaffey’s refusal to provide serv-
ice; and Phase III with the merits of the various con-
struction permit applications.*
After hearings, the ALJ issued an initial decision.
The ALJ determined that the 3-phase structure that
he had used for the hearings was not suited for issu-
ance of a decision, and instead organized his findings
of fact and conclusions of law to correspond to the
two designation orders. 79 F.C.C.2d at 418. With
respect to the issues framed by the first designation
order, the ALJ found no evidence of anticompetitive
conduct; he also ruled that Mahaffey’s one-way and
two-way permit applications should be granted. 79
F.C.C. at 419-469, 497-500, 502. On consideration of
the issues framed by the second designation order, the
ALJ determined that Mahaffey had imposed unrea-
sonable equipment maintenance requirements and di-
rected that Mahaffey undertake certain remedial ac-
tions. 79 F.C.C.2d at 469-496, 500-503.
allegations of anticompetitive practices. 41 Fed. Reg. 32645
(1976).
® MMT’s application for a one-way signalling station was
withdrawn and ultimately dismissed. 79 F.C.C.2d at 402 n.3.
4
The Commission’s Review Board affirmed, granting
the construction permits. 79 F.C.C. 2d at 410-411.
In so doing, it agreed with the ALJ that Mahaffey
had not, either by itself or in concert with the other
applicants for permits, engaged in disqualifying anti-
competitive conduct. Jd. at 406. The Commission
declined to review the Review Board’s decision (Pet.
App. 4a-6a).
Thirty-nine days later, invoking 47 U.S.C. 402(a),
petitioners filed a petition for review in the United
States Court of Appeals for the District of Columbia
Circuit, pressing their claims of anticompetitive con-
duct. The Commission moved to dismiss on the
ground that the order in question was reviewable only
under 47 U.S.C. 402(b), which requires that appeals
be filed within 30 days. The court dismissed the
petition (Pet. App. la-2a). The court stated (ibid.):
“The order that petitioners seek to have us review
was plainly an order granting applications for con-
struction permits and was thus subject to appeal only
under 47 U.S.C. § 402(b) (1), (6) (1976). Petition-
ers did not appeal within the thirty (380) day period
set by [47 U.S.C.] § 402(c). Their appeal is there-
fore untimely.”
2. The decision of the court of appeals is clearly
correct. It does not raise any issue requiring resolu-
tion by this Court and does not conflict with a deci-
sion of any other court of appeals. The petition for a
writ of certiorari should accordingly be denied.
This case is governed by the plain language of the
statute. Section 402(a), under which petitioners
brought their petition for review, is a residual clause
that confers jurisdiction upon the courts of appeals
to review “any order of the Commission * * * except
those appealable under subsection (b) of this section
5
* * *.” Section 402(b) confers jurisdiction upon the
United States Court of Appeals for the District of
Columbia Circuit to hear eight categories of appeals,
including those taken “[b]y any applicant for a con-
struction permit * * * whose application is denied
by the Commission” (47 U.S.C. 402(b)(1)) or “[b]y
any other person who is aggrieved or whose interests
are adversely affected by any order of the Commis-
sion granting or denying any ap/tication described in
paragraph [] (1) * * *” (47 U.S.C. 402(b) (6)).
Appeals falling within any of the eight categories
covered by Section 402(b) must be commenced by fil-
ing of a notice of the appeal within 30 days of an-
nouncement of the Commission action sought to be
reviewed. 47 U.S.C. 402(c). Review under Section
402(a), when available, may be sought within 60
days of the agency order. See also 28 U.S.C. 2344.
The Commission’s order grants respondent Mahaf-
fey construction permits, and petitioners claim to be
aggrieved by it. Petitioners’ petition for review
was accordingly untimely. Petitioners argue (Pet.
26-27), however, that because the Commission’s deci-
sion not only granted construction permits but also
addressed other issues, the various issues underlying
the order are severable and those issues not relating
to the technical merits of the construction permit ap-
plications are reviewable under Section 402(a). Spe-
cifically, petitioners claim that because the hearings
were divided into “phases,” the appeal should also be
frarmented along those lines.’
TIn fact, the “phases” to which petitioners refer were
created only for convenience during the hearing stage. The
agency did not separate the competition issue from the tech-
nical merits of the applications in either the designation
orders or the ALJ’s and Review Board orders.
Petitioners cite no authority for this position, and
their contentions are irreconcilable with the plain
language of the statute. The sole order from which
they appeal is clearly an “order of the Commission
granting or denying an[ ] application [for a con-
struction permit].” 47 U.S.C. 402(b)(6). The fact
that the Commission’s decision also addresses other
issues does not make it any less “an order granting
[construction permits].”* Moreover, the issues that
petitioners seek to sever—the existence of anticom-
petitive conduct—were directly relevant to the ulti-
mate grant of the construction permits. Thus, peti-
tioners seek impermissibly to challenge a finding in
a Commission order without challenging the order
itself by the prescribed route. See, e.g., American
Telephone & Telegraph Co. v. FCC, 602 F.2d 401,
407-409 (D.C. Cir. 1979). The plain language of
the statute precludes the fragmented system of re-
view that petitioners advocate.’
8 Section 402(b) (6) speaks in terms of persons aggrieved
by a particular category of order; it does not limit the review
to particular findings or conclusions underlying the order.
* Contrary to petitioners’ assertion (Pet. 26), Campos v.
FCC, 650 F.2d 890 (7th Cir. 1981), is not contrary to the
decision of the court of appeals. Campos involved denial of
applications for operator licenses, a type of order “ ‘not
precisely described by any of the categories of appeals pro-
vided for in Section 402(b),’” and for that reason was
reviewable under Section 402(a). 650 F.2d at 892-893.
Petitioners also argue (Pet. 28-32) that their lateness
should be overlooked because they filed in the right court
and the primary purpose of Section 402 is to ensure a con-
venient forum. But Congress established a jurisdictional
time limitation, as well as requiring filing in a particular
court, and the court of appeals properly gave effect to both
of these requirements.
7
Petitioners’ additional argument (Pet. 38-44) that
their petition for review was not covered by Section
402(b) because they were not parties to Mahaffey’s
applications and thus were not “aggrieved” by issu-
ance of the construction permits is frivolous. Sec-
tion 402(b) refers to any person “who is aggrieved
* * * by any order of the Commission granting or
denying” construction permits. 47 U.S.C. 402(b) (6)
(emphasis added). The filing of petitioners’ peti-
tion for review demonstrates that petitioners regard
themselves as aggrieved by the Commission’s order.
Were petitioners not aggrieved by the order of the
Commission, no petition for review would lie under
either Section 402(a) or Section 402(b). See also
28 U.S.C. 2344. °
In these circumstances, the court of appeals prop-
erly dismissed the petition for review for failure to
meet the 30-day limit imposed by statute.
It is therefore respectfully submitted that the peti-
tion for a writ of certiorari should be denied.
REx E. LEE
Solicitor General
May 1982
® 3G. &. Government painting orrice; 1962 373353 664
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.