Opinion
No. 13996.
Argued March 26, 1959.
Decided May 21, 1959. Petition for Rehearing in Banc Denied June 5, 1959.
Mr. Eliot C. Lovett, Washington, D.C., for appellant.
Mr. John H. Conlin, Counsel, Federal Communications Commission, with whom Messrs. Edgar W. Holtz, Associate Gen. Counsel, Federal Communications Commission, and Richard A. Solomon, Asst. Gen. Counsel, Federal Communications Commission, at the time the brief was filed, were on the brief, for appellee.
Messrs. Max D. Paglin, Asst. Gen. Counsel, Federal Communications Commission, Richard M. Zwolinski and Jerry M. Hamovit, Counsel, Federal Communications Commission, also entered appearances for appellee.
Mr. Paul Dobin, Washington, D.C., with whom Mr. Leonard H. Marks, Washington, D.C., was on the brief, for intervenor.
Before FAHY, WASHINGTON and DANAHER, Circuit Judges.
In WORZ, Inc. v. F.C.C., 103 U.S.App. D.C. 195, 257 F.2d 199, we affirmed an order of the Commission granting the application of Mid-Florida Television Corp. for a construction permit for television channel 9 in Orlando, Florida. The order of the Commission had denied the mutually exclusive application of WORZ, Inc. The latter petitioned the Supreme Court for writ of certiorari to review our decision. On October 27, 1958, certiorari was granted. Simultaneously, in view of representations in the Solicitor General's brief on behalf of the Commission concerning testimony before the Subcommittee on Legislative Oversight of the House Committee on Interstate and Foreign Commerce subsequent to our decision, the Supreme Court ordered that the judgment of this court be vacated and remanded the cause to this court for such action as we may deem appropriate. 358 U.S. 55, 79 S.Ct. 114, 3 L.Ed.2d 48.
Thereafter the Clerk of this court advised counsel for the parties of the action of the Supreme Court and inquired of them whether they wished to file memoranda with respect to what action would be appropriate for this court to take. In response, memoranda have been filed and oral argument had.
It appears from the testimony before the Subcommittee on Legislative Oversight that while the case was pending before the Commission certain ex parte representations were made to a member of the Commission regarding the qualifications of one of the applicants. The Commission has completed an inquiry of its own regarding the matter and in a Supplemental Memorandum filed with this court advises that it believes a further evidential hearing should be held along substantially the same lines as those being conducted in the cases in this court reported as WKAT, Inc. v. F.C.C., 103 U.S.App.D.C. 324, 258 F.2d 418, and Massachusetts Bay Telecasters, Inc. v. F.C.C., 104 U.S.App.D.C. 226, 261 F.2d 55.
The Commission accordingly suggests that we either remand the case to it for further proceedings similar to those had in the WKAT and Massachusetts Bay cases, in the meantime maintaining the status quo and retaining jurisdiction pending receipt of the Commission's decision and recommendations; or that we authorize the Commission to proceed with its inquiry and give effect to its already announced determination that an evidential hearing should be held, holding in abeyance the Supreme Court's remand until we receive the Commission's conclusions and recommendations. Mid-Florida has acquiesced in the suggestions of the Commission. WORZ urges the desirability of the court appointing a special master and determining under its own supervision the integrity of the Commission's decision and the propriety of this court's decision affirming it.
WORZ had advanced initially the suggestion, like that of the Commission, that the court take action similar to the course adopted in the WKAT and Massachusetts Bay cases, supra.
Adhering generally to the type of procedures adopted in comparable cases, including WKAT and Massachusetts Bay, supra, and the more recent instance of Sangamon Valley Television Corp. v. United States and F.C.C., ___ U.S.App. D.C. ___, 269 F.2d 221, the order of the Commission granting television Channel 9 in Orlando, Florida, to intervenor, Mid-Florida Television Corp., is vacated and the case is remanded to the Commission with instructions to hold, with the aid of a specially appointed hearing examiner, an evidential hearing to determine the nature and source of all ex parte pleas and other approaches that were made to Commissioners while the former proceeding was pending, and any other factors that might be thought to require either disqualification of some Commissioners from participating in the reopened proceeding or disqualification of some parties from receiving any award that may ultimately result. All parties to the former proceeding and to the present review may on request participate fully in the evidential hearing. The Commission is instructed to report its progress to this court within sixty days, together with any recommendations it is then able to make. In the discretion of the Commission existing services may be maintained. This court retains jurisdiction of this proceeding pending its further order.
Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U.S.App.D.C. 324, 329, 248 F.2d 646, 651.
Vacated and remanded.
Our judgment had been final, subject of course, to the action of the Supreme Court. 47 U.S.C.A. § 402(j). Since the Supreme Court's order of October 27, 1958, provided that our judgment "be, and the same is hereby, vacated," I see no basis upon which we may retain jurisdiction or direct the course which the Commission now must follow. It seems to me the record will be wide open for whatever action the Commission wishes to take. Cf. American Broadcasting Co. v. Federal Communications Com'n, 1951, 89 U.S.App.D.C. 298, 307, 191 F.2d 492, 501, 502.