American Communications Association v. United States of America and Federal Communications Commission, 298 F.2d 648, 2d Cir. (1962)
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Scribd Government DocsAmerican Communications Association v. United States of America and Federal Communications Commission, 298 F.2d 648, 2d Cir. (1962)
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Scribd Government Docs298 F.
2d 648
AMERICAN COMMUNICATIONS ASSOCIATION,
Petitioner,
v.
UNITED STATES of America and Federal Communications
Commission, Respondents.
No. 254, Docket 27309.
United States Court of Appeals Second Circuit.
Argued Jan. 10, 1962.
Decided Jan. 10, 1962.
Victor Rabinowitz, New York City (Rabinowitz & Boudin, New York
City, on the brief), for petitioner.
Daniel R. Ohlbaum, Asst. Gen. Counsel, Federal Communications
Commission, Washington, D.C. (Max D. Paglin, Gen. Counsel, Ruth V.
Reel and Richard M. Zwolinski, Federal Communications Commission;
Lee Loevinger, Asst. Atty. Gen., and Richard A. Solomon, Dept. of
Justice, Washington, D.C., on the brief), for respondents.
Before LUMBARD, Chief Judge, and CLARK and MARSHALL, Circuit
Judges.
LUMBARD, Chief Judge.
Having granted the petition of American Communications Association1 in open
court, we herewith elaborate our views.
This petition was brought under 47 U.S.C.A. 402(a) and 5 U.S.C.A. 1031-1041,
to review an order of the Federal Communications Commission denying ACA's
motion to intervene in an investigation of the lawfulness of the American
Telephone and Telegraph Company's tariffs for its TELPAK voice and record
communication services.
The investigation was begun under 47 U.S.C.A. 204 on September 8, 1961 in
response, inter alia, to a petition by the Western Union Telegraph Company,
which provides services competing with TELPAK. In addition to Western
Union, various other parties were permitted to intervene in the proceedings,
including, among others, the American Trucking Association and the National
Association of Manufacturers. ACA, which is a trade union representing
Western Union employees in the New York City metropolitan area, applied to
intervene under Rule 1.104(b) of the FCC's Rules, 47 CFR 1.104(b).2 Pursuant
to the criteria set forth in the Rule, the Acting Chief Hearing Examiner on
October 2, 1961 denied ACA's motion, saying that 'a showing has not been
made as to the manner in which its participation will assist the Commission in
the determination of the issues in question. * * *' The Commission denied
ACA's appeal on November 8, 1961, and on December 6, 1961 denied its
motion for reconsideration by a vote of 3 to 2. The Commission supported this
last action with a brief opinion in which it conceded that ACA was a party in
interest, but stated that as a matter of discretion it concluded that its
participation would not be useful. It went on to say that, 'In our view, the ACA
petition for reconsideration evinces a continued unwillingness on the part of
ACA to conform the evidentiary showing it does propose to make in this case
to the issues set forth in our order of suspension and investigation of September
7, 1961 (FCC 61-1039), but rather proposes to address such evidentiary
showing to matters of international as well as domestic communications policy
beyond the scope of such issues.' The avowed purpose of ACA's petition to
intervene was to show 'first, that A.T. & T. is moving relentlessly and with
some speed into the record communications field both domestically and
internationally and, second, that Western Union (and, indeed, the international
carriers as well) cannot survive if this process is permitted to continue
unchecked.'
4
Subsequent to the Commission's denial of this final motion before it, several
days of hearings in the investigation were held in December of 1961. ACA
petitioned this Court for review on December 15. On January 2, 1962, we
declined to stay the proceedings, but provided for an expedited hearing to be
held on January 10. Meanwhile the FCC hearing was recessed until January 22.
In our view this petition raises squarely the question whether the FCC in a
proceeding under 47 U.S.C.A. 204 can, as a matter of discretion, refuse to
permit intervention by an interested party which would have the right to seek
judicial review of an adverse final order resulting from that hearing. We hold
that it cannot.
1. Appealability-- A preliminary question arises whether under 47 U.S.C.A.
402(a) and 5 U.S.C.A. 1032 3 the Commission's order denying intervention is a
'final order' and thus reviewable at this stage of the proceedings. The
Commission in its brief concedes that an order denying intervention claimed as
of right is immediately appealable, and we see no logic to its circular argument
that the intervention sought here by the Association is discretionary. ACA's
contention is that it does have a right to intervene, and so by the Commission's
own concession it is incumbent upon us to determine at the outset whether such
a right exists.
7
We agree with Judge Bazelon's conclusion in Interstate Broadcasting Co. v.
United States, 109 U.S.App.D.C. 255, 286 F.2d 539 (1960), that immediate
review is to be desired even though it would seem to remain open to the ACA
to raise the denial of intervention later if it is aggrieved by the ultimate order,
see FCC v. National Broadcasting Co. (KOA),319 U.S. 239, 63 S.Ct. 1035, 87
L.Ed. 1374 (1943); Elm City Broadcasting Corp. v. United States, 98
U.S.App.D.C. 314, 235 F.2d 811 (1956). Arguments against piecemeal review
are outweighed by the desirability of avoiding the waste that would result from
requiring a second complete hearing with the intervenor present. Moreover, the
purpose of such a hearing as this is not to vindicate private rights but to advance
the public interest, and whatever the intervenor may have to contribute should
be heard even if he is not ultimately aggrieved by the turn the final order takes
(and thus has no standing to assert at that stage the error of excluding him).
2. The Right to Intervene-- It is conceded by the Commission that ACA, even
without participation in the proceedings before the Commission, would be
entitled under 47 U.S.C.A. 405, as a 'person aggrieved or whose interests are
adversely affected', to petition the Commission for rehearing of any final order
adverse to it, and thereafter to seek judicial review under 47 U.S.C.A. 402(a)
and 5 U.S.C.A. 1034 as a 'party aggrieved.' See National Coal Ass'n v. FPC, 89
U.S.App.D.C. 135, 191 F.2d 462 (1951), which builds upon the general
principles elaborated by this court in Associated Industries of New York State
v. Ickes, 134 F.2d 694 (2 Cir. 1943). The Commission's order denying
intervention implied as much in its finding that the Association was a party in
interest within the meaning of its Rule 1.104(b). We think that fairness requires
that one with such a recognized interest in the outcome of the agency
proceeding must be permitted to participate in it from the outset.
Rule 1.104(b), in which the FCC asserts its discretionary power over
intervention, depends for its existence upon the power of the FCC under 47
U.S.C.A. 154(j) to 'conduct its proceedings in such manner as will best conduce
to the proper dispatch of business and to the ends of justice.' Although
petitioner does not raise the point, this power is also limited by 6(a) of the
Administrative Procedure Act, 5 U.S.C.A. 1005(a),4 which we construe to give
'any interested person' the right to intervene in a proceeding 'so far as the
orderly conduct of public business permits.' We do not consider that the orderly
conduct of public business justifies the exclusion of petitioner from this
investigation.
10
Although this is not a case-- as National Coal Ass'n v. FPC, supra191 F.2d at
467, was assumed to be-- where any potentially aggrieved person must in
fairness be permitted to intervene at the hearing stage because only 'parties' can
seek judicial review, a similar principle applies to the present situation. In
National Coal, intervention was necessary to secure the right to review; here
intervention is necessary in order to make the right to review effective.
Although 47 U.S.C.A. 405 permits new evidence to be taken at the discretion
of the Commission on a rehearing at the petition of a nonparty, this is not an
effective substitute for the right to adduce evidence, to cross-examine
witnesses, and to present arguments at the initial hearing.5 Interested persons
must be allowed the option of participation from the outset. We are
unconvinced by the Commission's argument that it must restrict the
participation of interested parties before it in order to keep its hearings within a
reasonable scope. The Commission has ample power under 47 U.S.C.A. 154(j)
to control the scope of its hearings.6
11
Petition granted. The Commission is directed to permit intervention.
Hereafter referred to as 'ACA.'
Rule 1.104(b) of the Rules of the Commission reads as follows:
'Any other person desiring to participate as a party in any hearing may file a
petition for leave to intervene not later than 10 days prior to the date of the
hearing. The petition must set forth the interest of the petitioner in the
proceedings and must show how such petitioner's participation will assist the
Commission in the determination of the issues in question, and such petitions
must be accompanied by the affidavit of a person with knowledge as to the facts
set forth in the petition. The Commission, in its discretion, may grant or deny
such petition or may permit intervention by such persons limited to particular
issues or to a particular stage of the proceeding.'
47 U.S.C.A. 402(a) reads as follows:
'Any proceeding to enjoin, set aside, annul, or suspend any order of the
Commission under this chapter (except those appealable under subsection (b) of
this section) shall be brought as provided by and in the manner prescribed in
Chapter 19A of Title 5.'
5 U.S.C.A. 1032 reads in part as follows:
'The court of appeals shall have exclusive jurisdiction to enjoin, set aside,
suspend (in whole or in part), or to determine the validity of, all final orders (a)
of the Federal Communications Commission made reviewable in accordance
with the provisions of section 402(a) of Title 47 * * *.'
4
5 U.S.C.A. 1005(a) in part reads as follows:
'So far as the orderly conduct of public business permits, any interested person
may appear before any agency or its responsible officers or employees for the
presentation, adjustment, or determination of any issue, requests, or controversy
in any proceeding (interlocutory, summary, or otherwise) or in connection with
any agency function.'
The fact that in 1952 Congress saw fit to provide explicitly in 47 U.S.C.A.
309(e), (e), 66 Stat. 715 that 'parties in interest' should have an absolute right to
intervene in licensing proceedings does not necessarily justify any inference
that such a right could not be inferred judicially from the already existing
statutes
See especially 47 C.F.R. 1.104(c): 'The granting of any petition to intervene
shall not have the effect of changing or enlarging the issues specified in the
Commission's notice of hearing unless the Commission shall on notice amend
the same.'
