Petition for Writ of Certiorari — Florida-Georgia Television Co. v. Federal Communications Commission

a : : pret .. ‘ Office-Supreme Court, US.

ae FILED,

: ae CRT 18 1965

IN THE ie

frapreae ¢ Court of the nites Biekes

i 2. M df CTOBER TERM 1965

Nm 6G 7 8

FLORIDA- a TELEVISION COMPANY, INC.,

Petitioner,

ant

Vv.

FEDERAL COMMUNICATIONS COMMISSION,

| er are

JACKSONVILLE BROADCASTING CORPORATION,

Respondent and Cross- Petitioner.

PETITION FOR A CROSS WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHARLES H. MURCHISON

‘Counsel for Jacksonville ee

Corporation

~ 850 Florida National Bank Building’

Post Office Box 479

Jacksonville, Florida 32201

ULMER, MURCHISON, KENT

ASHBY & BALL - .

850 Florida National Bank Building

Post Office Box 479

Jacksonville, Florida 32201

Of Counsel

mo

TABLE OF CONTENTS

2

errr ream rrr rrr tosis 2

JURISDICTION ....... PO eT oar Sieben kek 2

QUESTION PRESENTED......... Peeper rere ree 2

STATUTES INVOLVED...........%: ere ee ae

IN ro es a eae eee 3

REASONS FOR GRANTING THE WRIT:

1. Under its scope of review the Court of Appeals oe

have examined facts of record de novo .........%.. 8

<4 2. An examination of facts de novo would have disclosed

. disqualification of Florida-Georgia............2... 11

3. An examination of facts de novo would ‘have disclosed

_ Jacksonville Broadcasting Corporation not disqualified . 14

4. The Court erroneously applied same double standard

applied by Commission in appraising actions of Flor-

ida-Georgia and J.B.C. ge Se ee er

5. F.C.C. General Counsel, after a investigation

and after record was completed, urged disqualification

of Florida-Georgia CO eeeeeensceeenveeneeeseas 17

CONCLUSION........ eee ees eeee ‘geeeee eeereeee 20-

CITATIONS

Cases:

Citizens TV Protest Committee v. FCC, 348 F.2d 56,62 .... 19

Clarksburg Pub. Co. v. FCC, 96 U.S. App. D.C. at 215,

S96 F280 G21, GIB 6 cece cewenvhons See Sees 19

Federal Communications Commission v. Pottsville

Broadcasting Co.,. 309 U.S. 134, 143, 84 L.ed. 656, 6623....- 8

Federal -Communications Commission v. Schreiber,

961 US. 970, 14 Lied. BA 9M, OL wc Be cee genes 8

Hazel-Atlas Glass Co. v. Hartford-Empire Co.,

322 U.S. 238, 88 L.ed. 1250, 1256......... Pp eet eres 10

SEC v. Chenery, 318 U.S. 80, 87.L.ed. 626 (1943) ......... 10

SEC v. Cogan, 201 F.2d 78, 86 (9th Cir. 1952)............ 10

Universal Oil Products Co. v. Root Refining Co.,

. 328 U.S. 575, 580, 90 L.ed. 1447, 1452-53 ............ 10

(11)

_. WORZ, Inc. v. . FCC, 268 F. > 2d es (D.C. Cir. iets

ae ean. See eae a ss ee

Texts:

. Davis Administrative Law, Sec. 28. 21, pp. 112-113 (1958) . 11

Statutes:

Adeiabaretien Procedure Act, 60 D Stat. 237, 5 U.S.C. 1001 ... 3

Communications Act of 1934, 48 Stat. 1064, as amended,

a

47 US. C. ee eee ee ; ee ae 3

Judicial Code:

28 U.S.C. 1254(1) . ease ark oerey ee err eee) See ee ee ;

IN THE

Supreme Court of the United States

OCTOBER TERM 1965

No. 590

FLORIDA-GEORGIA bch acid COMPANY, INC.,

Petitioner, 7

oS

FEDERAL COMMUNICATIONS COMMISSION,

Respondent,

JACKSONVILLE BROADCASTING CORPORATION,

Respondent and Cross-Petitioner.

PETITION FOR A CROSS WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR ‘THE DISTRICT OF COLUMBIA CIRCUIT

Florida-Georgia Television Company, Inc.:(Florida- .

Georgia), Intervenor in the proceedings in the Court be- |

low, ‘filed a Petition for Writ of Certiorari in this Court

on September 20, 1965, seeking to reverse the decision

_ of the Court below-on grounds other than wee set forth ;

herein. E

Jacksonville Broadcasting Corporation (J.B.C.) here-

_ by petitions for a Cross Writ of Certiorari to review

said decision of. the Court of Appeals for the District of

Columbia Circuit.

Pope

OPINION BELOW

The opinion of the Court of Appeals is reported in

Vol. 348 F.2d 75 (D.C. Cir. 1965). It is also reproduced

and printed as Appendix A insaid Petitionfiled by Flor-

ida-Georgia. The opinions of the Federal Communica-

tions Commission (F.C.C.) and of the Hearing Examiner

are reported at 35 F.C.C. 401 and are printed as Appen-

dices B and C in said Petition, and each of said three

‘Opinions is hereby incorporated herein by reference.

JURISDICTION

The judgment of the Court of Appeals became final.

on June 21, 1965. The jurisdiction of this Court is in-

voked under the authority of 28 U.S.C. 1254(1).

_ QUESTION PRESENTED

The question presented by this Petition is:

Whether the Court of Appeals properly construed its

statutory duty to review decisions of the Federal Com- .

munications Commission which involved ex parte action

and influence by and on members of the Commission in

behalf of an applicant for a television broadcast license:

1. .When it accepted findings of fact made by the

Commission as binding upon the Court in a case such

as this where the hearing before the Commission

grew out of the testimony before the Legislative

- Oversight Committee (LOC) andtestimony before the

- Commission evidencing ex parte action on behalf of

the original successful applicant. The principal is-

- gue involved prior official actions of tte Commission

itself challenging its very integrity and did not in any

_ way involve or require the exercise of hs ssl on

the part of the Commission.

2. When it erroneously failed to examine the un-

disputed facts of record (under the specific circum-

stances of this case) and thus erroneously adopted

3

the Commission's finding that the principals of Flor-

ida-Georgia had no knowledge of and did not condone,

_ ratify and adopt the ex parte activities on its behalf

' and therefore was not disqualified to receive the

award of Channel 12.

3. | .When it erroneously failed to examine the un-

disputed facts of record (under the specific circum- .

stances of this case and thus erroneously adopted

-the Commission's finding that J.B.C. should be dis-

qualified because it "attempted" to influence the Com-

mission through third parties "to decide the case on

its merits andnot on-political influence" even though

not one of said third parties interceded with the Com- >

_ mission on J.B.C.'s behalf.

4. When it approved the use of an illegal double

standard by the Commission in weighing the conduct

of. Florida-Georgia and J. B; .C. in the original com-

parative hearing.

STATUTES INVOLVED

The pertinent portions of the Communications Act of

1934, 48 Stat. 1064, as amended, 47 U.S.C.:-151, and the

Administrative Procedure Act, 60 Stat. 237, 5 U.S.C.

1001, applicable to this Petition are set forth in Appen- |

dix D of Florida-Georgia's Petition and incorporated

herein by reference.

STATEMENT

The facts of record upon which this Cross- Petition

‘ is based are as follows: “

The original applications for a construction permit

for a television station on Channel 12 in Jacksonville,:

Florida, were consolidated for comparative hearing by

order of the Commission on January 6, 1954. These

hearings opened on February 15, 1964, and after the

record was closed on December 7, 1954, the Examiner

issued an initial decision under date of April 4, 1955, .

4

recommending the grant of the construction permit to

J.B.C.. Exceptions to this initial decision were filed on

- May 13, 1955. Commission counsel concurred with the

Examiner in recommending that J.B.C. should be given

the award. In February 1956 oral argument was held

before the Commission and shortly thereafter the Com-

wv.

mission issued instructions to‘its staff to prepare a

draft decision granting the Channel 12 construction per- ©

mit to J.B.C. The principals of Florida-Georgia! were .

. aware of this action by the Commission. Between the

time of the vote to prepare a decision in favor of J.B.C.

and June 27, 1956, a number of ex parte representations :

were made to the Commission on'behalf of Florida-

Georgia. Nothing was placed on the record between the .

time of the oral argument in February 1956 and June

27, 1956, when the Commission had before it for the

first time the draft decision which‘had been prepared

in favor of J.B.C. "in accordance with its instructions."

‘This draft was.again considered at the July 5, 1956

meéeting at which time the Commission ordered the

- preparation of a revised decision granting the applica-

tion of Florida-Georgia. The Commission next consid-

ered the Jacksonville case on July 18, 1956, when the |

\draft decision favoring Florida-Georgia was submitted.

The Commission again voted to pass over both draft de-

cisions and they were not again considered untila meet-

ing of the Commission on August 29, 1956. At this time

the Commission by 4 to 2 vote adopted the decision

granting the license to Florida-Georgia and denying the

applications of J.B.C. The Chairmanof the Commission

and one member dissented. This opinion of the Com-

mission was not appealed from by J.B.C. because of the ©

then serious illness of James R. Stockton, its President

and. principal stockholder.

1 one of the three applications for Channel 12 (the other ap- _

plicant, the City of Jacksonville, has long since withdrawn

its application so will not again be referred to herein).

9)

As a result of hearings subsequently held by the sub-

committee on Legislative Oversight, Committee on In-

terstate and Foreign Commerce, House of Representa-

tives (L.O.C.), it was brought out that while the original

case was pending before the Commission a number of

ex parte presentations regarding the comparative hear-

ings.were made to the Commission on behalf of Florida-

Georgia. The Commission, when informed of this fact,

undertook additional investigations’ relating to such al-

‘ leged ex parte activities and ordered that the record of -

the original Channel 12 hearing be reopened and that

hearings be held on four separate issues. The two is-

sues pertinent to this Petition were:

- 1. To determine whether any of the members of.the

Commission who participated should have disqual-

ified himself from voting in the proceedings be-

fore the Commission which resulted in*the award

of a construction permit for a television station

on Channel 12 in Jacksonville.

2. To determine whether any party to the proceed-

ings before the Commission which resulted in the

award of the construction permit for Channel 12

in Jacksonville, directly or indirectly secured,

aided, confirmed, ratified, or knew of any mis-

conduct.or improprieties in connection with the ~

. proceeding. — -

At the end of the hearings conducted by the Commis-

sion's Examiner? it was.recommended to the Commis-

_ sion that: © aire

. Commission’ order of July 29, 1960 (released August 2,.

| 1960), which reopened the original. comparative hearings.

¥ Unlike other cases remanded to the Commission (e.g. WORZ,

' Inc. v. F.C.C., 268 F.2d 889 (D.C. Cir. 1959), 106 App. D.C.

14, the Commission did not select an independent "specially

appointed hearing exgminer" but designated one of its régu-

lar examiners to hear the case. An additional examiner *.

(who did not partjcipate in the hearings) was later desig-

nated to assist in preparation of the Initial Decision.

bed .

6

“A. Commissioner Mack should have disqualified

| himself from participating in the original ,proceed-

ings.

B. The count to Florida-Georgia was vo ab tni- an

tio because of Mack's illegal participation. Et,

C. The City and J.B.C. were disqualified from .

, consideration in any further proceedings because of §‘ ,

, ‘attempts by individuals, identified with them to in-

‘fluence the’ Commission through methods outside the

recognized and public processes of. adjudication. .

D. Florida-Georgia was not disqualified from

further consideration an “nothing i in this record may

be held to reflect adversely on its application," (I. D.

Ps. 19, par. 7; Tr. 6202, JA 375.)

‘The Commiésion' s General Counsel 4, who had con-

ducted the entire investigation on behalf of the Com-

mission and who was the only party involved who in- S

” terviewed all the witnesses and had access to their rec-

* ords (since much of the testimony was put. into the rec-

ord by way of written statements), filed exceptions to

_ the récommendation that F lorida-Georgia should not be

disqualified and in its brief to the Commission strongly

recommended that Florida-Georgia should be disquali-

fied. (See infra, page 18.) As to George Hodges, one

of Florida-Georgia's principals, the Commission's gen- -

eral counsel stated,."'the lack of candor and evasiveness

which characterizes his entire testimony compel the —

finding that Hodges' exculpatory testimony is unworthy

of belief and his denials of complicity must be disre- -

‘garded in toto." (p. 26; General Counsel's Brief) 5 °

J.B. Cc. also filed. exceptions to the Examiners' rec- -

ommendations. ;

+ OW, optics encaitiin this Petition unless otherwise

noted. .

5 For additional statements by F. C.C. ——— chasis see

infra, page m. |

After. oral argument, the Commission issued its de-

cision which substantially adopted the findings of the

Examiners and completely ignored the recommendation

of its general counsel. From this decision J.B.C. ap-

- pealed to the United States Court of Appeals, District

of Columbia Circuit. The Court of Appeals by a two to

‘one vote affirmed the Commission's finding that the

original award to Florida-Georgia was void ab‘initio

-due to the ex parte activities of Commissioner Mack.

The Court reversed that part of the Commission's find-

ings which again granted Channel 12 to Florida-Georgia. .

The Court held that due to the ex parte activities of

other parties on behalf of Florida-Georgia, Florida-

- Georgia should not be given the award on the existing

record. It, therefore, directed the Commission to re-

ceive new applications and to conduct a further hearing

_ to determine who the recipient of the award of Channel.

‘12 should ultimately be. The majority opinion accepted ©

‘the findings of fact made by the Commission as to Flor-

ida+ Georgia and as to J.B.C. (without any analysis of or

reference to those facts) and affirmedthe Commission's

disqualification of J.B.C. .The dissenting opinion, how-

ever, concluded that Florida-Georgia did have knowledge.

of the ex parte activities carried on in its behalf and

_ (together with J.B.C.) should therefore be disqualified

from further-participation in any reopened hearing. The

dissent also held tnat-if Florida-Georgia was held not

_.to be disqualified then J.B.C. should not be.’ The dis-

senting opinion sharply criticized the illegal double

standard used by the Commission in judging the con-

‘duct of the applicants and the obvious lack of impar-

tiality in appraising evidence during the proceeding. |

This Cross- Petition for Certiorari is directed to

the majority opinion and to that portion of the dissent

— J.B.C. disqualified.

REASONS FOR GRANTING THE WRIT

1. Under its scope of review the Court of Appeals

‘should have examined facts of record de novo. |

It is a well recognized principle of law that the Court

- of Appeals will not disturb the findings and conclusions

of the F.C.C. (or any other administrative agency)

where the action of the F.C.C. is clearly within the ap-

plication of its expertise in administering the act under

‘which it was established. There are valid reasons for

this well established principle. Even though this is

true, there are still exceptions which if they exist en-

able the injured party to seek reversals of F.C.C. by

the Court of Appeals. Furthermore, this case does not

' come within the.above general principle. The princi-

ples enunciated-in the Pottsville and the Schreiber cases”

are wholly inapplicable to. this case. Those cases (and

other like cases cited by Florida-Georgia in its Peti-

tion) deal specifically with instances involving the ex-

pertise attributed to the Commission in administering

the act. The question here does not involve such ex-

® as this Court om, held in FCC v v. Schreiber, 381.U.S.

279, 14 L.Ed. 2d 383, 391:

"In the Pottsville Broadcasting case, this Court stressed, in

- upholding this delegation of broad procedural authority, the .

established principle that administrative agencies 'should be

free to fashion their own rules of procedure and to pursue .

methods of inquiry capable of permitting them to discharge

their multitudinous duties.' 309 US, at 143, 84 L ed at 662.

This principle, which.has been upheld in a variety of appli-

cations, is an outgrowth of the congressional determination —

‘that administrative agencies and administrators will be fa-

miliar with the industries which they regulate and will be in

a better position than federal courts or Congress itself to

» design procedural rules adapted to the peculiarities of the

industry and the tasks of the agency involved."

pertise,’? Furthermore, the Administrative Procedure

Act specifically says that the Court of Appeals “shall

hold unlawful and set aside agency action, findings and

conclusions found to be * * * unwarranted by the facts

to the extent that the facts are subject to trial de novo

by the reviewing court." (Section 10(e);. Florida-Geor-

gia's Petition, App. B,p.80.) Where, as here, you have

a situation in which the F.C.C. itself was and is on trial

under the first issue of the case, it is urgently neces-

sary that the court not accept the findings of fact by the -

Commission but should review the facts de novo to de-

termine whether justice has-been done. Since the num-

ber one issue (supra, p. 5) involved the possible dis-

qualification and the integrity of the Commission, its

determination of the weight to be given to the evidence -

should be scrutinized critically rather than accepted

blindly by the reviewing Court.

The dissent below recognized the general rule by |

saying, "I agree with the broad proposition relied on - .

by my colleagues that our scope of review of Commis-

sion action is limited." (p. 12; Judge Burger's dissent;

Florida-Georgia's Petition, App..A, pp. 32-33.) How- —

ever, the dissent then emphasized the point the major-

ity opinion overlooked by stating that "the instant situ-

ation goes to the integrity of the Commission's proc-

esses in a fundamental manner. * * * When a regulatory

agency so far departs from protecting the public, inter-

est, some means must be found to ventilate the proc-

’ Here we have the all important question as to how broad is

the scope of the reviewing Court's authority in cleansing

decisions of the Commission which are tainted with improp-

er ex parte actions by one of its own members as well as by

persons acting in behalf of the successful applicant. -This

question, involving as it does the integrity of the Commis-

sion as well as the integrity of its decisions, necessarily

brings into play an extraordinary —ew of the Court's

scope “ review. :

10

esses employed." (fn.1, p. 12 dissent; Florida-Geor-

gia's Petition, App. A, p. 32).°

The entire body of law relating to cleansing our judi-

cial.and administrative bodies of ex parte activity has

been developed by the courts (Universal Oil Products

Co. v. Root Refining Co., supra fn.7), not by the admin-

, istrative agencies. As the Ninth Circuit aptly held ina

case involving the SEC's judgment on the question of

fiduciary duty,

.'"'The able .and learned district judge was, we think,

as. well qualified to pass upon what are the proper

standards ...as was the Commission. If any

‘expertise’ was involved, it belonged to the dis-

trict judge..." S.E.C. v. er: 201 F.2d 78,

86 (9th Cir. 1952).

The problem here is one involving an analysis of

“broad equitable principles" in which the Court need ©

not defer to any administrative solution.” See S.E.C. v.

Chenery, 318 U.S. 80, 87 L.ed. 626 (1943). If the Court

is compelled to accept without question (and without a

-thorough review of the facts) the findings of the.Com-

mission in a case such as this, then the right of appeal

is a hollow mockery bordering on a farcical waste of .

the time of all parties involved. The Appellant's ap-

parent right of appeal to the Court would afford him no

é

' Universal Oil Products Co. v. Root Refining Co., 328 US.

575, 580, 90 L.ed. 1447, 1452-53.

. tampering with the administration of justice in the

manner indisputably shown here involves far more than an

injury to a single litigant. It is a wrong against the institu-

tions set up to protect and safeguard the public, institutions _

in which fraud cannot complacently be tolerated consistently

with the good order of society. Surely it cannot be that:pres-

ervation of the integrity of the judicial process must always

wait upon the diligence of litigants. The public welfare de-

mands that the agencies of public justice be not so impotent _

that they must always be mute and helpless victims of decep-

tion and fraud." Hazel-Atlas Glass Co. v. Hariford-Empire

Co., 322:U.S. 238, 88 L.ed. 1250, 1256.

“11

protection of his righ.s to fair play and even-handed

treatment so essential to the administration. of justice _

_in a case where the facts.of record upon whichthe Com- —

mission's conclusions are based are of paramount im-

portance and where the expertise of that administrative

body is not in any sense involved.

Such, critical scrutiny in situations of this kind | pro-

vides the only adequate way in which abuse of the ad-

ministrative processes may be properly ''ventilated."

One well recognized authority has aptly stated:

"Experience ‘has now proved that judicial review

impairs an administrative program only when the

review involves undue substitution of judicial for

administrative judgment on problems within the

agency's special competence."' Davis Adminis-

trative Law, Sec. 28.21, pp. 112-113 (1958).

The majority opinion was therefore in error in stat- ©

ing, ''We accept their findings under the rule applicable

to the scope of our review." (Florida-Georgia's Peti-

tion, App. A, p. 30, par. IV.)

2. An examination of facts de novo would have

disclosed disqualification of Florida-Georgia.

Petitioner is well aware of the fact that neither the

' Court of Appeals nor this Court, will, under normal cir-

cumstances, review the facts of record involved in an

administrative hearing. However, this Petition is not

directed to the normal situation involving the expertise

of the administrative body in administering the act.

This case requires (because the integrity of the ad-

ministrative body is the basic issue) that the Court re- *

view the evidence and weigh specific facts of record in

order to properly determine whether justice has been

‘done.

; For these reasons it becomes. necessary to present

to this Court as a basis for granting this petition, a few

‘of those facts showing the flagrant ex parte activities

of the principals of Florida-Georgia and those acting on

\

12°

behalf of the principals of Florida-Georgia. Because,

if the Court below had correctly considered the facts of

record, it would have been forced toconclude that Flor-

ida-Georgia was disqualified.

The record before the Court of Appeals contained un-_

challenged and undisputed testimony showing that George

Hodges, one of the principal stockholders of Florida-

Georgia, as well as a director of Florida- -Georgia, and

the individual "charged with the responsibility of pros- |

ecuting the application for Florida-Georgia," received -

a written communication from Monsignor Sheehy (who

had been requested to help with Florida-Georgia's ap-

‘ plication)? wherein, among other things, Monsignor

Sheehy stated that George Hodges "had sought his help"

and he advised Hodges ‘that "I met a member of the FCC

while traveling to Detroit last week and he indicated

that this would be a happy solution as far as the Com-

mission is concerned." (FCC Ex. 54, Tr. 7519, JA

~ 310v.) Even Florida-Georgia's brief filed before the

‘Court of Appeals admitted that such a letter was writ-

' ten:

"On July 23,. 1965, Monsignor Sheokiy addressed a

letter jointly to Mr. Stockton and Mr. Hodges in

which he repeated in writing the suggestion that

they merge their interests, and he reported his

conversation with the Commission 'member."

(R. 5766)" (p. 31, Intervenor's Brief in the |

Court below).

In addition to this direct uncontradicted (in fact ad-

' mitted) testimony, there were other definite facts tes-

tified to showing conclusively that Florida-Georgia did

have knowledge of and did ratify and condone the re-

peated ex parte activities on its behalf! |

. Sheehy told three witnesses that he had been requested to

help George Hodges with his Channel 12 application and that

he was helping him with the Commission. Eachof these wit-

nesses so testified and their. testimony was not.contradicted

by Sheehy or any other witnesses. (FCC Exs. 7 71, 78; Tr.

5774-75, 5786; JA — 326iv.)

13

Congressman Herlong testified that ina conversation

with Commissioner. Mack, Mack told him, "I promised

Mitch Wolfson” a long time ago — not a'long timeago—

before I came up here that I was going to help him on

this thing, this Channel." (Tr. 7095, JA 694.) }!

The record showéd that Congressman Herlong, a

close personal friend of Commissioner Mack, was so

shocked by this brazen admission that en

Herlong) reported it immediately thereafter to Chai

man Harris of the LOC. Nothing’ can be added to the

excellent treatment of this point in the dissent. (pp.

13-15 dissent; Florida- Gece s mone App. A, pp.

33-35.) :

_ ° The record aiid that Lester Foley and .. ¢.

Spades were actively helping Florida- Georgia with the

Commission. Diary entries of Commissioner Mack

showed that on two separate occasions between Febru-

ary and July 1956 (the critical period during which the

‘Commission changed its vote favoring J.B.C.), Foley |

visited Mack to talk ‘with him about the "Jax case."

(Tr. 5891-92; JA 345.) .

The record showed that Alfred Jones a atckholder

and director of Florida-Georgia) told F.C.C. General

Counsel that ''Georgé Hodges had told me (Jones) that

Foley and Spades were helping with the television appli- ©

cation. " (Tr. 7038-39; JA 679- 680). :

The record showed. that Potter (Foley's construction

engineer) testified that Foley had told him that "he was

receiving a contract from Florida-Georgia because he

had helped Florida-Georgia secure its television li-

cense." | (Tr. 6899; JA —

70 Predominant stockholder and director of Plorida-Georgia.

ae "The commission was therefore faced with solid and cred-

ible evidence from a member of Congress that he had been

_ told by Mack of an obviously illegal advance commitment to —

support the Intervenor regardless of the evidence." (p. 14

‘dissent; Florida-Georgia's Petition, App. A, p. 34.) -

14

The majority opinion completely ignored every word

of the above quoted testimony and did not mention any

of it. This was because of its erroneous conclusion that’

it was required to ignore it by its scope of réview ("We

accept their findings under the rule applicable to the

scope of our review") and by its erroneous conclusion

' that the action of the Commission "was altogether with-

in its responsibility to administer the statute in the

| public interest." This case does not involve the "'ad-

ministration" of the Act. It involves the actions and

integrity of the Commission. The Court was not lim-

ited in the scope of its review of the facts of record.

3. An examination of facts de novo would have-.

disclosed Jacksonville Broadcasting ee

not disqualified.

The above facts show clearly Florida- Georgia's

knowledge and acceptance of ex parte activity on‘its

behalf which should have resulted in disqualification of

Florida- Georgia. On the other hand, if the Court below

~~ had correctly considered the facts of record relative to

_J.B.C., it would have been forced to concludethat J.B.C.

was not disqualified. The sole basis upon which the

Commission, and subsequently the Court below, found

J.B.C. disqualified was predicated upon the completely

erroneous finding of the Commission, erroneously ~

adopted by the Court, -when it said:

"The evidence of record amply supports the find-

‘ ings of the Commission that this applicant through

_its President, who was a controlling stockholder

and director, in the language of the examiners,

- adopted by the Commission, sought outside influ-

ence, to induce the Commission to exercise its

ultimate decisional authority to adhere to the

original instructions given its staff to prepare a

decision upholding the grant contemplated by the

Initial Decision of the Hearing Examiner, ivrve-

spective of the significance which might be drawn -

_ by the Commission from. its analysis of the evi-.

dence and the ta dnsacual of the competing appli- |

15

cants and oral argument thereon." - (par. I, Ma-

jority Opinion; Florida-Georgia's Petition, App.

A, p. 27.) | ’

There is not one word of testimony inthe record to sup-

port this finding. The Court's failure to examine the

_ facts of record again caused it to adopt an erronéous

finding .of the Commission. The only testimony of any

- kind bearing on J.B.C.'s ex parte attempt was the fol-

lowing testimony given by Mr. Stockton, the president

‘and principal stockholder of J.B.C.'” |

"As a result of information which I received from

Father Sheehy I actively continued my efforts to

attempt to persuade, through other (I, personally, ~

made no direct contact with any member of the.

Commission) the members of the Federal Com-

munications Commission not to decide this case

against Jacksonville Broadcasting Corporation

because I had supported Adlai Stevenson for Pres-

ident, but to decide it solely upon the merits of —

the case.*** To this extent (and for the purpose |

. just stated, to wit: to attempt to persuade the

Commission not to decide the case against Jack-

sonville Broadcasting Corporation because*I had

. Supported Adlai Stevenson for President, and to

decide the case solely upon the merits) I attempted

to bring influence to bear upon the Commission .

***." (Tr. 5787, JA 329).

This testimony furnishes no possible basis for holding

that J.B.C. had even "attempted" to influence the Cém-

mission "irrespective of the significance which might

|

|

= Prior to any activity of any kind by Stockton, he had been —

told (and the undisputed facts of record show) that the Com-

mission inthe original comparative case, after analyzing

the evidence and after hearing oral argument, had decided

. in favor of J.B.C., but that thereafter, without any additional

evidence being piaced on record, the Commission was chang-.

ing its vote as a result of the ex parte activities on behalf

of Florida-Georgia. . The Court below found that such ex

parte activities had taken place on behalf of Florida-Geor-

gia. i |

16

be drawn by the Commission from its analysis of the

evidence and the exceptions of the competing applicants

and.oral argument thereon." ~

~ Quite to the contrary, the Commission expressly |

found that no one J.B.C. so requested contacted the

Commission on behalf of J.B.C.°

4. ThecC exrosaounty applied sdihe double

standard applied by Commission in aqunetaing ac-

tions of Florida-Georgia andJ.B.C. —

The twisted and forced connotations which the Com-

mission placed on J.B.C.'s actions (resulting in no con-

tacts on behalf of J.B.C.) while overlooking or excusing

the repeated and rampant ex parte contacts made on

behalf of Florida-Georgia constituted an erroneous ap-

plication of an arbitrary double standard. This fact

was most forcefully enunciated in the dissenting opin-

ion: | '

"But here the Commission has made a finding that

one applicant is disqualified while another is giv-__.

en a ‘clean bill' in the face of evidence of ex par-

te contacts by the successful party. at least as of-

fensive as —.and in my view worse than — those

penalized by the Commission. My conclusions on

comparative misconduct' are not based‘on a re-

evaluation of credibility of witnesses, for appel-

late judges are not free to engage in such excur-

sions; credibility is for fact finders. Rather my

conclusions rest On undisputed evidence; * * *

The testimony of Congressman Herlong as to

Commissioner Mack's statements to him stands

unchallenged; the Commission did not in any way

cast doubt on Herlong's testimony. Mit¢hell Wolf-

18 "That the attorneys whom he retained, as well as the peo-

ple to whom they introduced him, declined to intercede with

the Commission does not.exculpate Stockton, for it is the at-

tempt itself and not necessarily the success or failure there- -

'-of which compels the finding of disqualification. " (ID. p.

21; Tr. 6203-4; JA 377-378 )

17

son's testimony can do no more than afford a ba-

sis for a finding — if he was believed — that he,

. Wolfson, secured no ex parte commitment from

Mack, * * *

_ "TI repeat that I would not venture to balance the % :

misconduct of Appellant against that of Intervenoz

for the purpose of giving t e award to Appellant

rather than Intervenor, ‘But I can find no record

basis for the Commission to hold that the rather

‘bumbling and naive efforts of Appellant to find out

who was ‘undermining its award' was evil beyond

redemption, while Intervenor was blameless. Un- -

der a single standard of conduct both Appellant

and Intervenor — or neither — should have been

disqualified."" (pp. 15-17; Florida-Georgia‘s s Pe-

tition, aap. A, pp. 35-36. j |

5. F.C.C. General Counsel, after isin inves-

“tigation and after record was completed, urged dis-

qualification of Florida-Georgia.

The Court, below and counsel for Florida-Georgia in

its brief to the Court emphasized that the Examiner had

the benefit of observing the witnesses while they were

testifying and, therefore, the Examiners' conclusion ~

should be given added weight. The Examiners did not

have the benefit of observing-more than 50% of the wit--

nesses. The record shows that the only party to this -

entire proceeding who had the benefit of rip srg

and observing all witnesses was the F.C.C. office of

general counsel. (O.G.C.) O.G.C. was charged by the

' Commission with the responsibility of developing and

conducting this case on behalf of the Commission.

Much of the sworn testimony subsequently introduced

- before the Examiner was in writing and wag secured

. and approved by O.G.C. The individual witnesses in

those cases were excused from appearing iff person

before the Examiner. It is, therefore, vitally impor--

tant to have the benefit of O.G.C.'s opinion as to all

witnesses and as to the weight that should be given to

their testimony (whether it was given in person or in

writing). The following constitute a few nem ex=:

18

cerpts from the brief of O.G.C. (relative to the Flori--

_da-Georgia ex parte — filed before the Com-

mission:

"All of the forego ‘eaniiale the conclusion, be-

yond any reasonable doubt, that the Foley and

ae visits to Mack in April, May and June,

56, and January, 1957,.were in connection with

and on behalf of the F lorida=Géorgia. application

and that George Hodges knew of and fostered

these activities.

"The record also reflects Foley’ s efforts on be-

half of Florida-Georgia in the uncontradicted tes-

timony of Alan Potter,.aformer Beiswenger-Hoch

employee, that during the middle months of 1956

Foley had told him that the firm would probably

receive some business from Florida-Georgia be-

cause of Foley's friendship with Hodges and Fo-

ley's efforts in behalf of the Florida-Georgia ap-

= (Ex. 35). And Hodges' knowledge of -

_ these activities is reflected not only by the Sheehy

letter but also. “4 the statements w ich Alfred

May, rote to the effect that he had od given to -

tand by Hodges that Foley and Spades were

| helping with the Florida-Georgia application (Ex.

. 72)." (O.G.C.'s Brief to Com ission, pp. 43-44).

"It is also clear, however, that full and proper

consideration of the evidentiary rd will es-

- tablish not only the improper combaes of Foley, .

Spades, Simmons, and Chase, butalso that George

Hodges is inextricably tied in with such conduct."

(O.G.C.'s Brief to Commission, p. 55).

"The culpability of: Florida-Georgia, must, of —

course, follow from the complicity of Hodges in

« these exparte.approached on its behalf. Further, .

Alfred Jones, a director and stockholder of Flor- |

ida-Georgia, knew of Foley and Spades'. ‘improper

activities from Hodges (Ex. 75)." (0. G.C.'s Brief .

to Commission, p. 56)..

O.G.C, strongly urged and recommended that Flor-

ida-Georgia be disqualified. Yet on the face of these ~

strong statements and recommendations by O.G.C.

' (borne out by the record), the denials and the contra-

. dictory statements, of the principals and agents of

: i a : | 19

_Florida-Georgia were blandly accepted by the Com-

mission and, thereafter, were not examined or men-

' tioned by the Court below because of its erronequs

belief that it was prohibited from doing so by it

"scope of review."

On the other hand, thé Presses of J.B:C.'s honest

statements have been twisted into unrecognizable form

although there was a complete absence of evidence con- —

tradicting his testimony. : Pay.

If the integrity of the administrative process ‘s to

be preserved, it can only be done by, applying the’ same —

standard to all parties alike. The majority opinion

' committed a grievous error in not doing so. The dis-

senting opinion in the Court below accurately charac-

terized the Commission's rejection of undisputed evi-

dence against Florida- Georgia as "astdnishing sophis-

try! Indeed what impertinence!" -In relation to this

évidence the dissenting opinion stated, "the Commis-

sion is not bound by such nice evidentiary distinctions

and indeed does not ordinarily stand on them; it is per-

mitted — in fact required in the public interest — to

consider reliable evidence which might be admissible

in court.''"4 (p. 16, n.4, dissent; aca esti

Petition, App. A, pp. 35-36.) .

It is clear, therefore, that.the Commission useda-_:-

double standard in admitting evidence and drawing con-

clusions therefrom and in refusing to give appropriate —

similar weight to evidence regarding the conduct of

J.B.C, and Florida-Georgia. :

* Citizens TV Protest Committee v. F.C. C., the Court

below emphasized this very. point:

"* * * However unwittingly, the Commission seems to have

assumed the defense of its grant, rather than the public in-

terest, as its primary role in the proceedings.'" 348 F.2d

56, 62. See Clarksburg Pub. Co. v. F.C. c., 96 U.S. App.

D.C. at: 215, 225 F.2d at 515.

20

CONCLUSION

- This case presents a fundamental question involving |

the division of responsibilities between the F.C.C. and

the Court of Appeals. for. thg. District of Columbia Cir-

cuit.’.The importance of the question here presented is

‘ pointed up by the fact that, in addition to this Petition, ©

there are'now pending three other Petitions for Certi-

orari involving the same fundamental question.15 Each

of these four Petitioners is asking this Court to define

'\ the extent to which, aiid the limits under which, the

‘Court of Appeals for the District of Columbia can and 7

maa must function when reviewing the action of F.C.C,

* “Three of the Petitions assert that the Court. of shece

peals exercised broader reviewing powers than those

.granted to.-it under the Administrative Procedure Act.

“These Petitions.in effect request that "'the proper ad-

: _- ministration of the Communications Act requires that

the limits of the Court of Appeals function to review

the Commission's efforts to cleanse its own processes

be definitely established." This present Cross-Petition. _

on the other hand, shows that the Court failed to exer- —

cise the authority and responsibility given to it under

the Communicationg, Act by failing to examine de novo

‘the facts of record where those facts bear directly upon

the integrity of the Commissiom itself. These four .Pe-.

titions thus show that the decisions of the Court below

were ‘inconsistent in theory and application, and if al- -

- lowed to stand would leave the law in an unsatisfactory

state. |

This Court is, therefore, asked to review these cor-

flicting theories and to settle once andfor all important

. 15 No. 204, Mid-Florida Television Corp. v. F.C.C., Octo-.

ber Term 1965; No. 500, Halpem & Seltzer v. F.C. C., Oc-

tober Term 1965; No. 397, United States v. American.

Broadcasting~Paramount Pictures, Inc., October Term

1965.

+ —-_—-. ‘ aN

~ 8 = eel SoD RBI POL AN 1 amis specs la ee tes ctiel bc sabihescetecte

“ a

enema Sen

ee ah aaa

: questions involving the construction of the Communica-

tions Act of 1934.

“It is appropriate to poiiit out that the Government (as

pt ras

represented by the F.C.C. and the Attorney. General = -

_ the United States, as parties respondent) is not oppos-

. . ing the grant of the several requested writs, presump-

tively because it, too, desires to have this question of

national importance concerning the respective roles of

the federal courts and the F.C.C. (in cases: involving il- ©

legal es settled by ~“ Court. .

Respectfully submitted,

CHARLES H. MURCHISON

Counsel for Jacksonville Broadcasting

, Corporation .

850 Florida National Bank Building

Post Office Box 479

Jacksonville, Florida 32201

ULMER,. MURCHISON, KENT,

e ASHBY & BALL

- 850 Florida National Bank Building

Post Office Box 479 _

Jacksonville, Florida 32201

Of Counsel... __

Puc

CERTIFICATE OF SERVICE,

Pasats, Sek ae

. This is to certify that a copy of the foregoing Petition

for a Gross Writ of Certiorari has been furnished each

of the following counsel by United Rates Air Mail this

day of cea 1965:

Warner W. Gardner, Lawrence J. Latto, Wil-

liam H. Dempsey, Jr., Esqs., Shea & Gardner,

134 15th Street, N. W., Washington, D.C. 20005

Bernard Koteen and Alan Y. Naftalin, Esqs. a “y

Koteen & Burt, 1000 Vermont Ave., N. W., :

Washington, D.C. 20005.

. Richard F. Wolfson, Esq., 316 North Miami "

‘Avenue, Miami, Florida

“>. ° Attorneys for Florida-Georgia ;

Television Company, Inc. :

Henry Geller, Esq., General Counsel, and_

Daniel R. Ohlbaum, Esq., Associate General

Counsel, Federal Communications-Commission, —

Washington, D.C. 20025

ay Attorneys for the Federal

Communications Commission

| ee:

Hon. Thurgood Marshall, Solicitor General mee

of the United States, Washington, D.C. |

ee for the United i States

_Charles H. Murchison