SANGAMON VALLEY TELEVISION CORPORATION, Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents. American Broadcasting-Paramount Theatres, Inc., Signal Hill Telecasting Corporation, Plains Television Corporation, Intervenors

United States Court of Appeals for the District of Columbia Circuit1961-07-27No. No. 13992

294 F.2d 742

Summary · law.co

Holding. The court remanded the case to the Federal Communications Commission with instructions to conduct an entirely new proceeding regarding channel assignment, rather than allowing the Commission to supplement and reevaluate its 1957 record.

This case involves a Federal Communications Commission proceeding concerning the assignment of a VHF television channel. The original Commission order from March 1957 was vacated due to ex parte communications (private approaches) made to Commission members by representatives of one applicant, Signal Hill Telecasting Corporation, through an individual named Tenenbaum. After remand, the Commission held a hearing to investigate these communications and issued a report in February 1961 proposing to supplement the original 1957 record with the newly revealed information and allow parties to comment on its effect before reaching a final decision.

The court rejected the Commission's approach of working from the supplemented 1957 record, agreeing with the Department of Justice that fundamental fairness required a completely fresh proceeding. The passage of four years and significant turnover in Commission membership made it inappropriate to decide the channel assignment based on an outdated record. While the court accepted the Commission's findings that no Commissioner or party was absolutely disqualified by the ex parte conduct, it required the agency to start the proceeding anew to ensure the integrity of the process.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether ex parte communications to Commission members vitiate administrative proceedings
Appropriate remedy when improper private communications compromise agency decision-making
Whether supplementing an outdated record satisfies due process fairness requirements
Disqualification of parties and agency members based on lobbying conduct

Procedural posture

The case was remanded from the Supreme Court to the circuit court, which previously had vacated the Commission's 1957 order and instructed a limited hearing to investigate ex parte communications; the court now issues this second remand decision.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

EDGERTON, Circuit Judge.

On May 8, 1959, on remand from the Supreme Court. we vacated the Commission’s order released March 1, 1957. We held that “private approaches to the members of the Commission vitiated its action and the proceeding must be reopened.” Sangamon Valley Television Corp. v. United States and Federal Communications Commission, 106 U.S.App.D. C. 30, 33, 269 F.2d 221, 224. We did not order an entirely new proceeding but remanded the case to the Commission with instructions to hold, with the aid of a specially appointed examiner, an evidential hearing to determine the nature and scope of the ex parte approaches to Commissioners that had been made while the former proceeding was pending, and any other factors that might be thought to disqualify some Commissioners or some parties. Id. 106 U.S.App.D.C. at page 34, 269 P.2d 221.

A hearing was held on those and certain other issues. The Commission found that the many ex parte approaches of Tenenbaum on behalf of the applicant Signal Hill rendered the former proceeding voidable but did not disqualify any Commissioner and, in view of what were then somewhat common practices, did not absolutely disqualify Signal Hill. The Commission left open the question whether Tenenbaum’s activities should reflect on Signal Hill’s comparative qualifications in any future proceeding. The Commission released its Report and Recommendation on February 16, 1961. It proposed to give interested parties “the opportunity to respond to any matter revealed in the instant proceeding to have been presented privately to the Commissioners or any of them, and not otherwise made a part of the public record while the former proceeding was pending, and to comment upon the effect such matter should have upon the Commission’s ultimate determination on the merits; and * * * to thereafter reevaluate its Report and Order released March 1, 1957 in the light of such comments. The Commission does not desire, nor would it consider, comment on matters occurring subsequent to March 1, 1957.”

The Department of Justice, on the other hand, contends on behalf of the United States “that the ‘basic fairness [which] requires that such a proceeding * * * be carried on in the open’ can only be achieved by starting afresh.” In all the circumstances, we think a fresh start is necessary. The Commission’s former order was issued over four years ago. Three of its then members have been succeeded by others. In all the circumstances we think it would not be appropriate for the Commission to determine in 1961 on the basis of a somewhat supplemented 1957 record where - and to whom VHF Channel 2 ought to be assigned. We remand the case to the Commission with instructions to conduct an entirely new proceeding; provided that, as the United States recognizes, it is unnecessary for the Commission to reconsider the conclusions expressed in its Report and Recommendation of February 16, 1961, that no Commissioner is disqualified and no party is absolutely disqualified. But we do not doubt that conduct of the type Tenenbaum engaged in, occurring since the Commission’s earlier decision on this point in this case, would be grounds for disqualification. In the discretion of the Commission, existing services may be maintained.

Remanded.

. Sangamon Valley Television Corp. v. United States, 358 U.S. 49, 79 S.Ct. 94, 3 L.Ed.2d 47.