Opposition Brief — Carlson v. Federal Communications Commission

INDEX

PAGE

Opinions below 1

Jurisdiction ; 2

Question presented 2

Statute and rules and regulations involved .................... 2

I ale od anche dieamniadianceateiaonbisaniocasdininiopa 2

EET EE RSE SER ee URE ONDE ee eR ERR CE 3

Conclusion 12

CITATIONS

Cases:

Adams v. Mills, 286 U. S. 397, 416-417 (1932) -......... 7

Avery v. Alabama, 308 U. S. 444, 446 (1940) .......... 3

California Oregon Power Co. v. Federal Power

Commission, 150 F. (2d) 25, 28 (C. C. A. 9th,

1945) 3

Greater Kampeska Radio Corporation v. Federal

Communications Commission, 71 App. D. C. 117,

108 F. (2d) 5 (1939) 11

Harrah v. Morgenthau, 67 App. D. C. 119, 120, 89

i % & Fs; ee eens 4

Inland Empire District Council, Lumber and Saw-

mill Workers Union v. Millis, 325 U. S. 697, 710

(1945) 10

Interstate Commerce Commission v. Jersey City,

322 U. S. 503, 514-515 (1944) a

Neufield v. United States, 73 App. D. C. 174, 179,

238 #. (24) 376, 399 (1941) 3

ii INDEX (Continued)

PAGE

United Rys. & Electric Co. of Baltimore v. West,

280 U. S. 234, 248 (1930) 7

WJR, The Goodwill Station, Inc. v. Federal Com-

munications Commission, No. 9464 .................. 8, 9, 10

Statute:

Communications Act of 1934, as amended.

[48 Srar. 1064 (1934), 47 U.S. C. § 151 (1946) ]

Section 310 (b)

Section 312 (b)

Section 405

In THE

Supreme Court of the Anited States

October Term, 1948

No. 689

Cxuartes OC. Carison, Petitioner

v.

FeperaL Communications Commission, Respondent

Louise C. Cartson, Intervenor

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

BRIEF FOR INTERVENOR IN OPPOSITION

OPINIONS BELOW

The findings of fact, conclusions of law, and order of the

Federal Communications Commission (J. A. 204) are not

yet reported. The opinion of the United States Court of

Appeals for the District of Columbia Cireuit (J. A. 276)

is not yet reported.

2

JURISDICTION

The United States Court of Appeals for the District of

Columbia Circuit on February 14, 1949, affirmed the deci-

sion of the Federal Communications Commission. The

petition for a writ of certiorari was filed on April 1, 1949.

Petitioner invokes the jurisdiction of this Court under the

provisions of 62 Srar. .......... , 28 U.S. C. A. §1254(1) (1948).

QUESTION PRESENTED

Whether the Federal Communications Commission prop-

erly denied petitioner’s application for renewal of his sta-

tion license on the basis of findings of fact and conclusions

made on the hearing record that petitioner had demon-

strated his lack of qualifications to continue as a radio

broadcasting station licensee because of continued and per-

sistent violations of the Commission’s Rules and Regula-

tions and Standards of Good Engineering Practice over a

period of years.

STATUTE AND RULES AND REGULATIONS

INVOLVED

The statute and rules and regulations involved are the

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

(1934), 47 U. S. C. §151 (1946), and the Rules and Regula-

tions of the Federal Communications Commission. The

pertinent sections of the Communications Act and of the

Commission’s Rules and Regulations are set forth in the

appendix to the petition.

STATEMENT

The intervenor adopts the Statement contained in the

brief in-epposition of the respondent,

3

ARGUMENT

1. The first question presented to this Court is whether

petitioner was denied a full and fair hearing because the

Commission refused his request for a continuance of the

oral argument. It is important to note in this connection

that there is no dispute among the parties as to the proper

rule of law applicable to the instant issue. Petitioner only

cites authority for general legal principles that are obvi-

ously applicable to every case involving a hearing. He

cites no authority to dispute the fact that the applicable

rule of law, as established by this Court and by the United

States Court of Appeals for the District of Columbia Cir-

cuit, is that a continuance is a matter within the discretion

of the trial court or the administrative agency and a ruling

on a request for such will not be reversed upon appeal un-

less there is a clear showing that this discretion has been

abused. Avery v. Alabama, 308 U. S. 444, 446 (1940);

California Oregon Power Co. v. Federal Power Commis-

sion, 150 F. (2d) 25, 28 (C. C. A. 9th, 1945), cert. denied,

326 U. S. 781 (1946); Neufield v. United States, 73 App.

D. C. 174, 179, 118 F. (2d) 375, 380 (1941), cert. denied, 315

U.S. 798 (1942).

This question, therefore, involves, in reality, only an

issue of fact. An administrative agency and an appellate

court have already decided that the facts alleged by peti-

tioner neither entitled him to a continuance nor justified a

reversal of the agency’s denial of such. There is nothing

of legal importance involved in this question — in fact, a

decision on this issue would be of no value as a precedent

since the individual facts are peculiar to this ease.

One other aspect of the question should be called to the

Court’s attention. Intervenor, in her opposition to the

telegraphic request for a continuance filed by Mr. Maurice

B. Gatlin, petitioner’s New Orleans counsel, definitely put

in issue the good faith of said counsel in making the re-

4

quest. (J. A. 179). It is submitted that, once such an issue is

raised, the administrative agency is clearly justified in

denying a request for a continuance. See Harrah v. Mor-

genthau, 67 App. D. C. 119, 120, 89 F. (2d) 863, 864 (1937).

Since this question then involves only a pure issue of

fact, the following additional information, omitted by peti-

tioner, should be supplied for the Court’s consideration:

(1) Petitioner’s requests for a continuance of the oral ar-

gument can hardly be considered to have been reasonable.

The petition to reopen the record and continue the oral

argument filed on February 10, 1948, in effect requested an

indefinite continuance (J. A. 171), and the telegraphic re-

quest filed by Mr. Gatlin on February 12, 1948 asked for a

month’s continuance (J. A. 175). (2) Petitioner alleges

that he was deprived of the right to be represented by

counsel of his own choice since Mr. Gatlin wag not present

at the oral argument and his request for a continuance was

denied. At the second hearing, held on November 4, 5, and

6, 1946, petitioner was represented by the Washington law

firm of Fisher, Wayland, Duvall and Southmayd, and this

firm alone entered an appearance for petitioner (T. 604).

The entire hearing was conducted on behalf of petitioner

by Mr. Fisher (J. A. 103 et seq.), and Mr. Gatlin appeared

only as a witness (J. A. 140). At the time of the tele-

graphic request for a continuance, petitioner was still rep-

resented by his Washington attorneys (J. A. 184). (3)

Petitioner never requested the Federal Communications

Commission to continue the oral argument on the ground

of inadequate notice of the date scheduled therefor.

It is submitted, therefore, that petitioner’s first question

not only does not present an issue of legal importance but,

furthermore, the facts developed in the petition for a writ

of certiorari and the oppositions thereto clearly show that

the denials of the requested continuances were fully justi-

fied.

5

2. The second question presented for consideration is

whether the Commission erred in granting intervenor a

comparative hearing with petitioner. The mutually exclu-

sive application of intervenor was filed with the Commis-

sion on September 20, 1946, and was accompanied by a peti-

tion requesting a consolidated hearing on her application

and petitioner’s application for renewal of license (J. A.

97). Petitioner did not oppose this petition, and the appli-

cations were consolidated for hearing on September 25,

1946. (J. A. 101). Petitioner not only did not oppose the

grant of the petition but, in fact, used it as the basis for a

petition requesting a continuance of the hearing, which

was, as a consequence, postponed from October 10, 1946,

to November 4, 1946 (T. 605).

The Cdmmission’s Rules in existence at the time of the

consolidation provided that the Commission, in the exercise

of its discretion, could designate a mutually exclusive ap-

plication for hearing in a comparative proceeding with an

application already designated for hearing even though the

former wasn’t filed until after the designation of the latter

(Pet. App. 24-25). The present rule covering this point

and providing that such a mutually exclusive application

may only be designated for hearing in the same proceed-

ing if it is filed more than twenty days before the com-

mencement of the hearing did not become effective until

December 2, 1946, after the hearing in the instant case was

completed. Therefore, petitioner is urging that this Court

attach considerable legal importance to an issue involving

a rule that no longer is effective and consequently is asking

this Court to render a decision that would be of no value

as a legal precedent. It is submitted that when petitioner’s

brief (1) shows that an appellate court has already found

a contention to be without merit and (2) fails to even al-

lege that the issue is of any present legal importance, then

this question is not a matter which should receive the con-

sideration of this Court.

6

3. Petitioner’s third question raises the issue of

whether the Commission was arbitrary in refusing to con-

sider his application for a construction permit to change

transmitter location and install new equipment together

with the record of the consolidated hearing. The applica-

tion for a construction permit was not filed until May 28,

1947, more than six months after the hearing record had

been closed. It was not until September 24, 1947, more

than ten months after the record was closed, that petitioner

requested joint consideration of his application for a con-

struction permit and his application for renewal of license

(J. A. 167). Irrespective of how such a consolidation

would have violated the procedural rights of intervenor, it

is clear that the petition for consolidation was addressed

solely to the discretion of the Commission. Petitioner

cites neither statute, regulation, *or case authority to show

that he was entitled to such a comparative consideration as

a matter of right. Therefore, petitioner is again asking

this Court to grant certiorari to review the Commission’s

exercise of its discretion, without questioning the validity

of the applicable rule of law.

4. The fourth question raised by petitioner is based on

the Commission’s denial on April 22, 1948, of his second

petition to reopen the record, filed on March 18, 1948

(J. A. 189). Petitioner contended that intervenor had

attempted to seize control of Station WJBW in contraven-

tion of Section 310(b) of the Communications Act of 1934

and that the Commission should have reopened the record

in this proceeding to receive evidence on this point since

it was related to the qualifications of intervenor to be a

licensee.

Appellant’s brief in the appellate court raised, for the

first time, the argument that had the Commission consid-

ered the evidence concerning the alleged violation by inter-

venor of Section 310(b) ‘‘. . . it might well have reached a

different conclusion than it did in denying appellant’s ap-

7

plication . . .”’ The second petition to reopen the record

did not, in any way, allege that this evidence was relevant

or material to appellant’s case but concerned itself soiely

with the Commission’s duty to take action against inter-

venor for her alleged violation of the Communications Act

of 1934. Nor was this contention raised in the application

for rehearing filed by appellant on May 14, 1948 (J. A.

248). The accepted rule of law is that an appellate court

will not consider or review contentions not presented be-

fore the lower court. Adams v. Mills, 286 U. S. 397, 416-417

(1932); United Rys. & Electric Co. of Baltimore v. West,

280 U. S. 234, 248 (1930). It is submitted, therefore, that

petitioner may not now contend in this Court that the ad-

mission of this evidence would have affected the decision

in his case and, therefore, its exclusion by the Commission

was erroneous.

In addition, it is submitted that petitioner had no ap-

pealable interest based on the Commission’s refusal to re-

ceive this evidence, and the question presented to this

Court is therefore moot. Both the Commission’s proposed

and final decisions denied petitioner’s application for re-

newal of license solely on the ground that the record con-

clusively demonstrated his unfitness to be a licensee of a

radio station. The granting of a construction permit to

intervenor was not made on the basis of any comparative

qualifications. Petitioner would have been deprived of his

license whether intervenor had applied for his facilities or

not, and, therefore, the grant to intervenor was in no

way prejudicial to him. After the decision, intervenor’s

status as the permittee of a radio station was separate and

distinct from pétitioner’s. When petitioner complained

that intervenor was not qualified to be a licensee, he was

in the same status as any other citizen making a com-

plaint, and he had no right to insist that the Commission

take any action on that complaint. Therefore, he was not

injured by the Commission’s refusal to reopen the record to

receive this evidence, and he cannot now urge this con-

8

tention before this Court since he is not aggrieved or ad-

versely affected by the Commission’s action in this respect.

Petitioner contends in his argument that the Court of

Appeals’ decision in the instant case appears to be in con-

flict with its decision in WJR, The Goodwill Station, Inc.

v. Federal Communications Commission, No. 9464, decided

on October 7, 1948. It is submitted that the decision in

that case does not conflict with the Court of Appeals’

decision in the instant proceeding because of a com-

pletely different factual situation. In the WJR case, ap-

pellant was an existing licensee protesting the Commis-

sion’s grant, without hearing, of a construction permit for

a station to operate on the same frequency as was assigned

to it. Section 312(b) of the Communications Act of 1934

provides that an existing station’s license may be modified

only after a hearing. Appellant filed a timely petition for

reconsideration of the Commission’s action, as provided

by Section 405 of the Communications Act of. 1934, setting

forth therein facts which it alleged showed that it was

entitled to a hearing. This petition was denied by the Com-

mission without granting appellant an opportunity for oral

argument thereon. The appellate court held that appellant

could not be deprived of its statutory right to a hearing,

and, since it had proceeded in conformance with the statu-

tory remedy provided in Section 405, it was entitled to

an oral argument on the petitiow for reconsideration. The

significant factor in that case was that appellant pos-

sessed a statutory right to a hearing, and, unless a

hearing were afforded at the time it was requested, appel-

lant would be forever deprived of this right.

In the instant case, however, petitioner had no statu-

tory right to an oral argument on his petition to reopen

the record. Moreover, petitioner did not even proceed in

accordance with the statutory remedy provided in Section

405. Therefore, his petition was directed to the general

power of the Commission to grant or deny oral argument

9

as a matter of discretion, Unlike the WJR case, there-

fore, since no statutory right of petitioner is invoked, it

follows that no hearing is required by due process. This

Court has clearly held that no such right accrues to a

party filing a petition for rehearing:

*‘One of the grounds of resistance to administra-

tive orders throughout federal experience with the

administrative process has been the claims of private

litigants to be entitled to rehearings to bring the rec-

ord up to date and meanwhile to stall the enforce-

ment of the adminstrative order. Adminstrative con-

sideration of evidence — particularly where the evi-

dence is taken by an examiner, his report submitted

to the parties, and a hearing held on their exceptions

to it— always creates a gap between the time the rec-

ord is closed and the time the administrative decision

is promulgated. This is especially true if the issues

are difficult, the evidence intricate, and the consider-

ation of the case deliberate and careful. If upon the

coming down of the order litigants might demand re-

hearings as a matter of law because some. new circum-

stance has arisen, some new trend has been observed,

or some new fact discovered, there would be little

hope that the administrative process could ever be con-

summated in an order that would not be subject to

reopening. It has been almost a rule of necessity that

rehearings were not matters of right but were pleas

to discretion. And likewise it has been considered

that the discretion to be invoked was that of the body

making the order, and not that of a reviewing body.”’

Interstate Commerce Commission v. Jersey City, 322

U.S. 508, 514-515 (1944).

Petitioner had a statutory right to a hearing before his

application for renewal of license could be denied. The

material fact in the instant case which distinguishes it

from the WJR case is that petitioner received the hearing

required by statute. The case, therefore, is completely

opposite. In the instant case, petitioner, after his statu-

tory right to a hearing had been fully complied with, asked

for an additional hearing on a matter addressed solely to

10

the discretion of the Commission. Whether or not a party

has been deprived of a fair hearing in any particular case

is to be determined by looking at the proceedings as a

whole. Due process does not require that any particular

procedure he followed, and it is essential only that a

party receive a full and fair hearing at some stage of the

proceedings before the decision becomes final :

‘‘We think no substantial question of due process

is presented. The requirements imposed by that guar-

anty are not technical, nor is any particular form of

procedure necessary. Morgan v. United States, 298

U. S. 468, 481, 56 S. Ct. 906, 912, 80 L. Ed. 1288.

‘The demands of due process do not require a hear-

ing, at the initial stage or at any particular point or

at more than one point in an administrative proceeding

so long as the requisite hearing is held before the final

order becomes effective.’’’ Inland Empire District

Council, Lumber and Sawmill Workers Union v. Millis,

325 U. S. 697, 710 (1945), rehearing denied, 326 U. S.

803 (1945).

It is submitted, therefore, that petitioner’s allegation that

the instant case is in conflict with the lower court’s pre-

vious decision in the WJR case is without merit. In addi-

tion, it is clear that the facts of this case do not raise a

question of legal importance as to ‘‘the area in which the

Commission is. required to ‘hear’ petitions of interested

parties presenting questions of law or fact and the area in

which petitions may be denied without a hearing,’’ as is

suggested in the instant petition. As heretofore shown, the

‘*area’’ involved in the instant case is one in which a com-

plete hearing has been afforded and the record closed.

Since this Court has already clearly held that a petition in

this ‘‘area’’ is addressed solely to the discretion of the

administrative agency, and thus no hearing is required, it is

submitted that this question has been specifically an-

swered, with the decision in the instant case being in com-

plete harmony therewith.

11

5. Petitioner’s final question raises the point that the

Commission erred in failing to consider all of the evidence

and in failing to find that petitioner was qualified to re-

ceive a renewal of his license. Again petitioner is not rais-

ing a question of general legal importance but only the issue

as to whether there was substantial evidence in the record

to support the findings of the Commission. The appellate

court found that there was ample evidence, and petitioner,

by conceding in his petition that most of the alleged viola-

tions took place, stipulates himself out of court.

In the opening paragraph of his argument, petitioner

contends that it would be appropriate for the Court to

grant certiorari in this case ‘‘in order to lay down well-

defined principles for the guidance of the Commission in

future cases’’ involving applications for renewal of li-

eense. It is clear, however, that there is only one princi-

ple involved that is peculiar to these cases, i.e., that re-

peated and willful violations of the Commission’s Rules

and Regulations fully justify a denial of an application for

renewal of license. Without such a power to protect its

Rules and Regulations, the Commission would be rendered

helpless as an administrative agency. The United States

Court of Appeals for the District of Columbia Circuit has

specifically upheld the Commission’s authority in this re-

gard. Greater Kampeska Radio Corporation v. Federal

Communications Commission, 71 App. D. C. 117, 108 F.

(2d) 5 (1939). Therefore, a review of the instant case

would not result in any definition of law in connection with

applications for renewal of license that is not already well

established.

It is submitted, therefore, that a review of this case would

not establish any principles of legal importance or guidance

in future cases since petitioner has in effect only alleged

that, while the appplicable law is clear, the facts of his case

require a different decision. Such an allegation can be

made by every litigant in every case. Intervenor has

12

charged that petitioner was not proceeding in good faith

(J. A. 179), and the United States Court of Appeals for

the District of Columbia Circuit, by hearing the case on

Friday, February 11, 1949, issu:ng a per curiam decision on

Monday, February 14, 1949, «nd awarding costs to inter- |

venor, in effect, has held that the appeal was frivolous (J.

A. 277). Such a decision creates a prima facie case that

petitioner’s appeal does not raise any question of legal im-

portance, and it is submitted that the petition for a writ of

certiorari completely fails to rebut that presumption.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for a writ of certiorari should be denied.

Vincent B. WELCH

Counsel for Intervenor

April 1949