Petition for a Writ of Certiorari — Shreveport Television Co. v. Federal Communications Commission (No. 658)

DEC 28 1956

JOHN

IN THE

Supreme Court of the United States

OcToBER TERM 1956

No. 658

SHREVEPORT TELEVISION Company, Petitioner

vs.

FEDERAL COMMUNICATIONS COMMISSION

and

SouTHLAND TELEVISION CompaANy, Respondents

/

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Henry B. Weaver, JR.

Tuomas M, Cootry, II

Counsel for Petitioner

1225 19th Street, N. W.

Washington 6, D. C.

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December 28, 1956

Press or Byron S. ADAMS, WASHINGTON, D. C.

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S INDEX

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Reasons for Granting the Writ .................... 4

} I. The Issue as to Distribution of Judicial and

RATERS POUOE onc cccccccsvcsacseseses 5

: II. The Specific Statutory Procedure for Review... 13

OC ETRE TP ey Ce 17

Appendix A, Order of Court Below ................. la

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TABLE OF AUTHORITIES

; CASES:

: Albertson v. Federal Commumications Commission,

87 U.S. App. D.C. 39, 182 F. 2d 397 (1950)..... 7, 9,11

Atchison, T. 'S. F. R. Co. v. United States, 284 U.S.

248, 52 S.Ct. 146 EE. canecdbidchebasakuseuns 12

Babler v. Umited States, 137 F.2d 98, (CCA 8, 1943) 10

Black River Broadcasting Co. v. McNinch, 69 US.

App. D.C. 311, 101 F. "3a 235, cert. den. 307 U.S.

623, 59 S.Ct. 793 SE. 266>antcbduneniaerdedas 5

Enterprise Co. v. Federal Communications Commis-

sion, ... U.S. App. D.C. ..., 231 F. 2d 708 (1956) 6,7

Federal Communications Commission v. Columbia

Broadcasting System, 311 U.S. 132, 61 S.Ct. 152

SUE so-snnnbusnsghenecsecadeneansckuaxuuieane 4

Federal Communications Commission v. Pottsville

Broadcasting Compamy, 309 U.S. 134, 60 S.Ct. 437

CREE 9 655.00566 6500s Oeneanacsonbenianases 9, 10, 17

Federal Radio Commission v. General Electric Com-

pany, 281 U.S. 464, 50 S.Ct. 389 (1930) .......... 8

TELE TI Le AT

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96 U.S. App. D.C. 223, 225 F.2d 523 (1955). .7, 8, 11, 13

Interstate Commerce Commission v. Jersey City,

322 U.S. 503, 64 S.Ct. 1129 (1944)............. 11,13

Johnston Broadcasting Co. v. Federal Communica-

tions Commission, 86 U.S. App. D.C. 40, 175 F.2d

i Feet ech eee aee ERE WAS RKO sae senccsces 13

KFAB Broadcasting Co. v. Federal Communica-

tions Commission, 96 U.S. App. D.C. 268, 225 F.2d

560, cert. den. 350 U.S. 923, 76 S.Ct. 212 (1955) 14

Scripps Howard Radio v. Federal Communications

ii Index Continued

3 Page

P| Federal Radio Commission v. Nelson Bros., 289 U.S.

; SOD a vce anc tccnncsannssas )

3 Fleming v. Federal Communications Commission,

Commission, 316 U.S. 4, 62 S.Ct. 875 (1942)...... 16

United States ex rel. Harrington v. Schlotfeldt, 136

EPI, We ED oka ca dc anccncssccennsas 10

United States v. Pierce Auto Freight Lines, 327

Fe eS ee | eee eee 12

W. S. ew Inc. v. Federal Communications

Commission, ... U.S. App. D.C. . . 6

(Nos. 12527, "12666, 13752, decided May 24,

eeu GaSe Ne KORN SEs ecancs 6, 8, 11

STaTUTEs:

5 U.S.C. §1009(e) (Administrative Procedure Act) 2

28 U.S.C. §1254(i) (Supreme Court Jurisdiction) 2

47 U.S.C. § 96 (Radio Act of 1927, Section 16) ..... 8

47 U.S.C. §96 (Radio Act of 1927, Section 16 as

amended by Act of July 1, 1930, c. 788)........... 9

47 U.S.C. § 307(d) (Communications Act, 1937).... 15

47 U.S.C. § 310(b) (Communications Act, 1937).... 15

47 U.S.C. §312(a)(2) (Communications Act, 1937). 14

47 U.S.C. § 402(b)-(j) (Communications Act, 1937)

2, 3, 9, 15, 17

47 U.S.C. § 405 (Communications Act, 1937)... 214, 16, 17

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IN THE

Supreme Court of the United States

OcroBeR TERM 1956

No.

SORES ER AL

aS oA

SHREVEPORT TELEVISION Company, Petitioner

vs.

FEDERAL COMMUNICATIONS COMMISSION

and

ONESELF 7

SouTHLAND TELEVISION CoMPANY, Respondents

a Ain Se al

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Ba

PP

Shreveport Television Company, petitioner,’ prays

that a writ of certiorari issue to review the order of

1 Shreveport Television Company is a Louisiana partnership

originally comprising Don George, Henry E. Linam, Ben Beckham

Jr, and Carter Henderson. Since the Commission decision

herein, Don George has died. His 43% interest is held by his

executrix; and under the terms of the partnership agreement, its

affairs are to be carried on by the surviving partners.

De ae ig OD me par

bY POR B55

2

the United States Court of Appeals for the District of

Columbia Circuit entered herein on October 2, 1956.

CITATION TO OPINION BELOW

The opinion cf the Court of Appeals is unreported

and is printed in full as Appendix A hereto, infra

p. la.

,

JURISDICTION

The judgment of the Court of Appeals, in the form

of an order vacating a decision of the Federal Com-

munications Commission and remanding the case to

the Commission, was entered on October 2, 1956; and

the jurisdiction of this Court is invoked under 28

U.S.C. 1254(1), and 47 U.S.C. § 402(j).

QUESTION PRESENTED

Whether the Court of Appeals upon appeal from a

final decision of the Federal Communications Com-

mission pursuant to 47 U.S.C. § 402(b), may vacate

the Commission decision and remand for further con-

sideration by reason of an event which occurred after

the Commission decision had become final and while

the appeal therefrom was pending.

STATUTES INVOLVED

The statutory provisions are Sections 402(b) - (j)

and Section 405 of the Communications Act of 1934,

Act of June 7, 1934, ¢. 652, $§ 402(b) - (j) and 405,

48 Stat. 1093, 1095, as amended, 47 U.S.C. §§ 402(b)-

(j) and 405; and Act of June 11, 1946, ¢. 324, § 10,

60 Stat. 243, 5 U.S.C. 1009(e). All are set forth in

full in Appendix B hereto, infra pp. la-Ta.

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STATEMENT

Petitioner and respondent Southland Television

Company applied for permits for the same television

facility at Shreveport, Louisiana. These applications

being mutually exclusive, the respondent Commission

designated them for comparative hearing on May 20,

1953, together with that of a third applicant which has

since abandoned the ease.

The case was fully heard by an examiner who issued

a decision in favor of petitioner on June 7, 1954. On

May 20, 1955, the Commission, after the filing of

extensive exceptions and briefs and after hearing oral

argument, issued its final decision, also in favor of

petitioner.

The competing applicant which has since dropped

out filed a timely appeal with the Court of Appeals and

respondent Southland Television Company petitioned

the Commission for Rehearing and Reconsideration.

The latter petition was denied by the Commission on

November 17, 1955, and respondent appealed to the

Court of Appeals on December 15, 1955, invoking its

jurisdiction under 47 U.S.C. 402(b). In the meantime

petitioner, at great expense, has constructed and put

into operation the first television station to bring serv-

ice to the Shreveport area.

On June 5, 1956, after briefs had been filed and the

case was awaiting argument in the Court of Appeals,

Don George, one of the partners comprising the peti-

tioner, died. Petitioner filed the requisite suggestion

of death with the Court of Appeals; and on June 11,

1956, respondent Southland Television Company

moved the Court to remand the case to the Federal

Communications Commission for further consider-

ation based on the fact of Don George’s death.

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Both Petitioner and the Commission opposed the

motion to remand on the ground that the sole issue

before the Court was the correctness of the Commis-

sion’s decision on the record before it when that

decision was rendered. The Court of Appeals never-

theless entered its per curiam order of October 2,

1956, vacating the decision of the Commission and re-

manding the ease to the Commission ‘‘with directions

to reconsider its decision in the light of the cireum-

stance that, by reason of the death of Mr. Don George,

the fact to which the Commission attached greatest

weight’ no longer exists’’.

REASONS FOR GRANTING THE WRIT

1. The ruling of the Court below raises questions of

central importance in the field of judicial review of

administrative decisions, and, more specifically, in

respect of ‘“‘the distribution of judicial authority

under the Communications Act of 1934...’’. Federal

Communications Commission v. Columbia Broadcast-

ing System, 311 U.S. 132, 133, 61 S. Ct. 152 (1940). |

The Court below has ruled that the pendency of pro- |

ceedings for judicial review of a final order of the

Communications Commission postpones the point at

which the comparative proceeding before the admin-

istrative agency terminates. It thus confuses the

spheres allocated by Congress to the judicial and ad-

ministrative processes respectively. This action by

2It is only one of the vices of the lower court’s method of

handling this case that permits this sort of a conclusion in advance

of having examined the Commission’s decision and deciding its

correctness upon the record before it. In fact, many other factors

which were not affected by Mr. George’s death were given signi-

ficance; and it cannot be said on superficial examination that

Mr. George’s participation was of overriding importance.

si - Dobsrandece ser —r* Pec IEE REE LG NSIS ER NR pred We samt buAheds ay iinet gat a ei ae tag BON on Fa eat

the United States Court of Appeals for the District

of Columbia Circuit is in conflict with the basic scheme

of the Communications Act and with the applicable

decisions of this Court.

9. The ruling of the Court below is plainly contrary

to specific provisions of the statute governing its juris-

diction and procedure on appeal from the Federal

Communications Commission. This is, again, a matter

of importance because the Court below is the only

court given jurisdiction of appeals from the instant

type of proceeding before the Commission; there can,

consequently, arise no conflict among the circuits, and

the Cireuit Court of Appeals for the District of

Columbia has more than once made plain its adherence

to the erroneous course it now pursues.

L. THE ISSUE AS TO THE DISTRIBUTION OF ADMINISTRATIVE

AND JUDICIAL POWER

The action of the Court below represents a bald

usurpation by the Court of the Commission’s discre-

tion in respect of reopening. Indeed, since the record

had been closed and the period for requesting rehear-

ing had expired, it is probable, as is argued below,

that it usurped a discretion the Commission itself no

longer had. No appeal, by request for rehearing, had

ever been made to the Commission’s discretion on the

matter of Don George’s death.* The Court did not

8 Respondent Southland Television Company’s petition for re-

hearing was on entirely different grounds, had been denied before

Don George’s death and had no effect whatever in the decision

of the lower Court. This action by the Court is inconsistent with

its own ruling in Black River Valley Broadcasting Co. v. McNinch,

69 App. D.C. 311, 101 F. 2d 235, cert. den. 307 U.S. 623, 59 S. Ct.

793 (1939), which requires exhaustion of the administrative remedy

of rehearing, once invoked, prior to appeal.

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remand for the purpose of directing the Commission

to exercise the discretion it had never previously had

the opportunity to exercise. It ‘‘vacated’’ the Com-

mission’s decision because of an event which had not

yet occurred when that decision became final.

The summary character of the order of remand

issued by the Court below gives no clue to the rationale

on which it acted. It has elsewhere been quite specific,

however. In W. S. Butterfield, Inc. v. Federal Com-

munications Commission, U.S. App. D.C. ,

F, 2d (Nos. 12527, 12666, 12752 decided May

24, 1956), the Court of Appeals for the District of

Columbia Circuit was faced with a case similar to the

instant one, except that a reopening and rehearing had

been requested of the Commission on the basis of

changed circumstances (which arose after its decision,

but before a previous rehearing petition had been

acted upon) and had been denied.

The Court said (slip opinion page 3):

‘“‘We held in Enterprise Co. v. Federal Commun-

ications Commission ( U.S. App. D.C. :

231 F.2d 708, 712-13) that the Commission had

erred in not reopening the record to receive evi-

dence as to events transpiring before its determi-

nation of the petition for rehearing .... Our

decision in Enterprise was not limited to events

occurring before decision of petitions for rehear-

ing .... We said that we were laying aside the

question of whether there was a right to reopening

of the record to include events occurring after

filing of petitions for rehearing. We confined our-

selves to holding that the Commission had power

to reopen and that, in the circumstances of that

case, it was an abuse of discretion not to exercise

that power’’.

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Thus the Court made it clear that it recognized a

discretion in the Commission over reopening, and

found it abused. It then went on to elaborate on the

time within which such a discretion could (and should,

as it thought) be exercised:

‘“‘We pointed out that the Commission’s power to

reopen the record was coextensive with its juris-

diction over the order it has made and that such

jurisdiction existed until the time to appeal had

expired’”’.

Following this sentence the Court inserted a foot-

note reading as follows:

‘‘ Albertson v. Federal Communications Commis-

sion. 87 U.S. App. D.C. 39, 41-42, 182 F.2d 397,

399-400 (1950). As to events occurring during

pendency of appeal, see Fleming v. Federal Com-

munications Commission, 96 U.S. App. D.C. 223,

226, 225 F.2d 523, 526 (1955)”’.

It was thus made explicit that, as was held in

Fleming and again in the instant case, both the Com-

mission’s discretion and the Court’s power to compel

its exercise extend to all events occurring while an

appeal from a Commission is pending.*

This holding contains a tacit but none the less

apparent misconception of the Court’s function in

such appellate proceedings. The Commission is, of

course, required to reach its decision in comparative

4In Enterprise Co. v. Federal Communications Commission, 231

F. 2d supra at p. 712, the Court stated : ‘* As we held in Albertson

vy. Federal Communications Commission, 87 U.S. App. D.C. 39, 41-

42, 182 F. 2d 397, 399-401, jurisdiction over an order remains with

the Commission until the time for appeal has expired. . . . See, also,

Fleming v. Federal Communications Commission, 96 U.S. App.

D.C. 223, 225 F. 2d 523’’.

PEPE Oe Pa re

8

cases, such as the present one, upon the record before

it. Once it has done so, the Court is empowered only

to pass upon whether it has acted correctly. The

pendency of an appeal alleging error could hold the

comparative proceeding open only if the Court were

acting as a higher administrative tribunal with

authority to reach its own decision on the merits. From

the holdings in Butterfield, Fleming and the instant

case, it is evident that the Court of Appeals does not

believe the comparative phase of the administrative

hearing is finally concluded by the Commission’s deci-

sion and expiration of the period allowed for rehear-

ing. Finality must in its view await upon decision of

the appeal.

It is clear that this view is in error. Indeed, this

is especially clear in respect of the Court of Appeals

for the District and its relations with the Communica-

tions Commission, because at one time that Court was

given such administrative authority over the pre-

decessor of the present Commission and later was

expressly deprived of it. Section 16 of the Radio Act

of 1927 directed the Court of Appeals for the District,

upon appeal, to ‘‘hear review and determine the

appeal’? upon the record made before the Commission

and upon such additional evidence as the Court might

receive, and the Court was empowered to ‘‘alter or

revise the decision appealed from and enter such

judgment as to it may seem just’. (44 Stat. 1169, 47

U.S.C. $96). The Supreme Court held in Federal

Radio Commission v. General Electric Co., 281 U.S.

464, 50 S. Ct. 389 (1930), that this provision made the

Court of Appeals ‘‘a superior and revising agency”’

in the administrative field, and, in consequence, that

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its decision on an appeal from the Commission was not

a judicial judgment reviewable by the Supreme Court.

Following this decision, Congress, by the Act of

July 1, 1930, ¢. 788, amended § 16 of the Radio Act of

1927 expressly to limit the review by the Court of

Appeals to ‘‘questions of law’’, and provided ‘‘that

findings of fact by the Commission, if supported by

substantial evidence, shall be conclusive unless it shall

clearly appear that the findings of the Commission are

arbitrary or capricious’. (47 U.S.C. § 96).

In Federal Radio Commission v. Nelson Bros. Co.,

289 U.S. 266, 53 8. Ct. 627 (1933), the Supreme Court

had occasion to determine the effect of this alteration

of the review powers of the Court of Appeals. It said

(289 U.S. at p. 276):

“This limitation is in sharp contrast with the

previous grant of authority. No longer is the

Court entitled to revise the Commission’s decision

and to enter such judgment as the Court may

think just. The limitation manifestly demands

judicial, as distinguished from administrative,

review”’.

There seems no doubt that the purpose of the present

§ 402 of Title 47 U.S.C., which superseded §$ 16 of the

Radio Act of 1927 as amended, carried forward this

limitation on the scope of the Court of Appeals’

powers of review. See e.g. Federal Communications

Commission vy. Pottsville Broadcasting Co., 309 U.S.

134, 60 S. Ct. 487 (1940).

The Court of Appeals first intimated that the pro-

vision for judicial review under powers so limited

holds open the administrative decision in Albertson v.

Federal Communications Commission, 87 U.S. App.

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D.C. 39, 182 F.2d 397 (1950). The Court there held

that jurisdiction over a contested order remains with

the Commission during the period for taking an appeal.

It cited as authority Babler v. United States, 137 F.2d

98 (CCA 8, 1943), and United States ex rel. Harring-

ton v. Schlotfeldt, 136 F.2d 935 (CCA 7, 1943).

Both of the cited cases concerned the question of

the jurisdiction of a lower federal court over matters

occurring during the period for appeal to a higher

court. Their citation as governing the question of the

Commission’s power over its orders completely over-

looks what Mr. Justice Frankfurter has cogently

pointed out in the Pottsville case supra with respect

to a mandate from the Court of Appeals to the Com-

mission. There, at p. 141 of the official reporter, he

said:

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“*This was not a mandate from court to court but ;

from a court to an administrative agency. What

is in issue is not the relationship of the federal

courts inter se—a relationship defined largely by = *

the courts themselves—but the due observance by

the courts of the distribution made by Congress

as between its power to regulate commerce and

the reviewing power which it has conferred upon

the courts under Article III of the Constitution”’.

This vital distinction results in a situation where

the procedural rules of the reviewing court are totally

unrelated to the functions of the agency reviewed.

As Mr. Justice Frankfurter further said (ibid.):

LO IEE TS

“A review by a federal court of the action of a

lower court is only one phase of a unified process.

But to the extent that a federal court is author-

ized to review an administrative act there is super-

imposed upon the enforcement of legislative

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policy through administrative control a different

process from that out of which the administrative

action under review ensued”’.

It would seem abundantly clear from this that there

is not, as Albertson holds, any relation between the

period provided for seeking review in the judicial

process and the finality of the action taken in the

administrative process. Therefore, when Butterfield,

supra, and, by inference, Fleming, supra, and the

instant case followed Albertson and extended it to

cover the period during which appeal was pending,

they were plainly wrong.

The consequences of this error are not minor. The

eases already cited show that this Court has regarded

the conceptual error here illustrated as warranting

correction in proceedings by way of certiorari. In

addition, however, the particular ruling below which

is sought to be reviewed here has wide-ranging

practical consequences which rise to a level of im-

portance warranting their correction also.

The nature of these consequences could find no better

elucidation than the words of this Court in Interstate

Commerce Commission v. Jersey City, 322 U.S. 503,

514-15, 64 S. Ct. 1129, 1134-5 (1944):

‘‘Administrative consideration of evidence —

particularly where the evidence 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 record is

closed and the time the administrative decision is

promulgated. This is especially true if the issues

are difficult, the evidence intricate, and the con-

sideration of the case deliberate and careful. If

upon the coming down of the order litigants might

12

demand rehearings as a matter of law because

some new circumstance has arisen, some new

trend has been observed, or some new fact dis-

covered, there would be little hope that the

administrative process could ever be consummated

in an order that would not be subject to reopening.

It has been almost a rule of necessity that rehear-

ings were not matters of right, but were pleas to

discretion. And likewise, it has been considered

that the discretion to be invoked was that the

body making the order, and not that of a reviewing

body”’.

The Court then goes on to point out that only once

in the history of administrative law has it reversed a

Commission as having abused its discret’9n by refusal

to grant a rehearing because of facts arising after

decision. Atchison, T. & S. F. R. Co. v. United States,

284 U.S. 248, 52 S. Ct. 146 (1932); and in its sub-

sequent discussion (id. at pp. 515-17) it makes clear

che insecure status of that case as authority. Cf.

United States v. Pierce Auto Freight Lines, 327 U.S.

515, 534-5, 66 S. Ct. 687, 697 (1946).

The Atchison case is, moreover, clearly distinguish-

able from the one here presented. There the Inter-

state Commerce Commission had closed its record in

1928 and proposed to make effective in 1931 rates

based on the old record despite an intervening petition

for rehearing alleging changed circumstances. Here

the Commission has taken final action based on the

state of affairs extant at the time it acted, and it does

not propose to take later action against anyone subject

to its jurisdiction in the face of intervening change;

nor has it had before it or rejected a timely petition

for rehearing alleging such change.

maiainiaae ad

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If the teaching of Interstate Commerce Commission

v. Jersey City, supra, is to be ignored, as was done

below, the results will endanger the orderly function-

ing of the administrative process. Already a single

Commission has twice in slightly over a year (in

Fleming, supra, and the instant case) been ordered

to reopen a case it considered closed—and that without

any finding by the Court of Appeals that there was

error of any sort in the decision under review. In

each case the occasion for reopening was the death

of a partner in one of competing applicants which

occurred after the Commission’s decision became final

but while an appeal to the Court of Appeals was

pending. If this can be done because of death, pre-

sumably a similar result will ensue when there is a

change in any other significant factor upon which the

Commission’s decision was based.

In view of the length of the appellate process, it

must be anticipated that many such changes will occur

in the factors underlying the final administrative

decisions of many agencies, with a consequent burden

on the agencies of required reopenings and recon-

siderations which may well prove insupportable. The

burden on the agency directly affected here will be

especially heavy because, under the holding in

Johnston Broadcasting Co. v. Federal Communications

Commission, 86 U.S. App. D.C. 40, 175 F.2d 351

(1949), an exceptionally wide range of factors is held

to be significant in this Commission’s determination

of comparative cases.

Il. THE SPECIFIC STATUTORY PROCEDURE FOR REVIEW

The Communications Act, as amended, provides

specifically the time within which applications for re-

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hearing are to be made. 47 U.S.C. § 405. Once the

thirty days there afforded an applicant has expired,

he is finally concluded and loses his standing to be

treated as a competing applicant (subject only to the

possibility that, upon appeal, the Commission may be

held to have committed error in finding against him).

KFAB Broadcasting Co. v. Federal Communications

Commission, 96 U.S. App. D.C. 268, 225 F.2d 560;

cert. den. 350 U.S. 923, 76 S. Ct. 212 (1955).

Parenthetically, it should be re-emphasized that the

Court of Appeals has not found that the Commission

was in error in the decision here under review. It has

simply held, in effect, that respondent Southland

Television Company must be treated as retaining its

status as a competing applicant throughout the appeal

process.

At the outset it should be pointed out that there is

no possible argument that only by so holding can the

interest of the public in the character of broadcasters

be upheld. Final termination of the opportunity for

competing applicants to seek reopening of a compara-

tive hearing, which § 405 plainly contemplates, does

not in any sense terminate the Commission’s power

to protect the public interest from any injury

threatened by changes in the composition of the

successful applicant, or in its operations, whenever

they may occur. The Commission has ample powers

to vindicate the public interest by revoking the permit

it has issued if at any time conditions come to its

attention which would have warranted a refusal to

grant it originally. 47 U.S.C. $312 (a) (2).

Similarly, any change amounting to a transfer of

control, such as the involuntary transfer effected by

—

the death of Don George in the instant case, must have

the approval of the Commission upon an affirmative

finding that the transfer will serve the public interest.

47 U.S.C. § 310(b).° Further, the Commission has and

exercises broad supervisory powers over all operations

of its permittees and licensees at the periodic renewal

dates when, as required by 47 U.S.C. § 307(d), the

Commission determines that renewal will be in the

public interest.

15

With the public interest thus protected, there is no

occasion for the Court of Appeals to stretch, as it has

done, the scope of review conferred upon it by 47

U.S.C. §402. That Section, in Subsection (g),

requires that the Court determine the appeal ‘‘upon

the record before it’’. Subsection (d) of the same

Section throws additional light upon what record is

meant by this phrase. It is there required that:

‘The Commission shall file with the court a copy

of the order complained of, a full statement in

writing of the facts and grounds relied on by it

in support of the order involved upon said appeal,

and the originals or certified copies of all papers

and evidence presented to and considered by it in

entering said order’’.

Oe oe Oe

It is apparent that all of the material so required

is simply the record upon which the Commission

reached its decision from which appeal is taken.

There is complete absence of any suggestion that there

is to be brought to the Court of Appeals in the first

instance any material subsequently arising and which,

by hypothesis, the Commission did not consider in

3

.

5 Such approval has been obtained by Petitioner pursuant to ;

Commission procedure therefor. ’

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16

reaching its decision. Moreover, the language of § 405

of the Act, dealing with rehearing, is eloquent in show-

ing the Act’s intention that there shall not be reviewed

on appeal facts other than those in the Commission

record. Thus, it is there provided:

“The filing of a petition for rehearing shall not

be a condition precedent to judicial review .. .

except where the party seeking such review . . .

relies on questions of fact or law upon which the

Commission has been afforded no opportunity to

pass’’.

3

3

?

*

§

¥

By this provision, a petition for rehearing becomes

a prerequisite to review when new facts are relied on.

Accordingly, it is apparent that the statutory scheme

of judicial review contemplates solely review of the

Commission’s decision on the record before it and

gives the Court of Appeals no authority to hold open

during the pendency of an appeal the record the

Commission has closed and which, under the statute

governing the Commission, is no longer subject to

reopening by the only method provided for that

purpose—a petition to the Commission for rehearing.

As has been aptly said in another context:

‘*No court can make time stand still. The cireum-

stances surrounding a controversy may change

irrevocably during the pendency of an appeal,

despite anything a court can do”’. Scripps Howard

Radio v. Federal Communications Commission,

316 U.S. 4, 9, 62 S. Ct. 875, 879 (1942).

This fact of inevitable change cannot, however, justify

the court in seeking to remedy such changes by the

expedient of holding open the administrative proceed-

ing on a comparative basis beyond the time appointed

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——

17

by statute for its final closing. Finality must come

somewhere, and it is for the Commission, not the

Court, to deal with subsequent changes which affect

the permit or license which it has issued and over

which it has exclusive and continuing jurisdiction

in the public interest. This the United States Court

of Appeals for the District of Columbia has utterly

failed to understand.

CONCLUSION

It is therefore respectfully submitted that a writ

of certiorari should issue herein for the purpose of

clarifying once again the necessity for ‘‘due observance

by the courts of the distribution made by Congress as

between its power to regulate commerce and the re-

viewing power which it has conferred upon the courts

under Article III of the Constitution”. Federal Com-

munications Commission v. Pottsville Broadcasting

Co., 309 U.S. 134, 141, 60 S. Ct. 487, 440-1 (1946), and

of clarifying the proper application of 47 U.S.C.

§§ 402 (b), (d), (g) and 405.

Respectfully submittea,

;

;

Henry B. WEAVER, JR.

Tuomas M. Cootry, II

Attorneys for Petitioner

December 28, 1956

85 PE ES ETN, SRT ETE TAS PML IT