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04/26/85 the National Black Media v. Federal Communications

April 26, 1985

THE NATIONAL BLACK MEDIA COALITION, ET AL., APPELLANTS

v.

FEDERAL COMMUNICATIONS COMMISSION, APPELLEE, HERITAGE VILLAGE CHURCH & MISSIONARY FELLOWSHIP, INC., DAVID LIVINGSTONE MISSIONARY FOUNDATION, INC., INTERVENORS 1985.CDC.83



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from an Order of the Federal Communications Commission.

APPELLATE PANEL:

Bork, Scalia and Starr, Circuit Judges. Opinion for the court filed by Circuit Judge Scalia.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCALIA

The National Black Media Coalition and six other parties ("appellants") appeal from the Federal Communications Commission's refusal to designate for hearing an application for assignment of the television license for WJAN-TV in Canton, Ohio. Contending that appellants had failed to file their appeal with this court within the time period prescribed by statute, 47 U.S.C. § 402 (c) (1982), the Commission filed a motion to dismiss for lack of jurisdiction. Appellants respond that their filing was proper because its lateness was caused by the Commission's failure to give them personal notice of its decision, in violation of its own rules and the Administrative Procedure Act. The issue before us is whether the statutory requirement that appeals must be filed within thirty days of public notice of Commission decisions can be tolled by the Commission's violation of law regarding personal notice to parties. I

In 1979, the Commission initiated a non-public investigation to examine whether PTL of Heritage Village Church and Missionary Fellowship, Inc. ,1 the licensee of WJAN-TV, was subject to license revocation because of violations of 18 U.S.C. § 1343 (1982), outlawing "fraud by wire, radio, or television." See PTL of Heritage Village Church and Missionary Fellowship, Inc., 71 F.C.C.2d 324 (1979). While the investigation was still underway, PTL sought to assign its license to intervenor David Livingstone Missionary Foundation, Inc. Acknowledging the Commission's general policy against granting assignments when an assignor's character qualifications are in question, see Stereo Broadcasters, Inc. v. FCC, 209 U.S. App. D.C. 229, 652 F.2d 1026, 1027 (D.C. Cir. 1981); Jefferson Radio Co. v. FCC, 119 U.S. App. D.C. 256, 340 F.2d 781, 783 (D.C. Cir. 1964), PTL filed a Petition for Special Relief, which the Commission granted by order announced on December 8, 1982. Commissioner Jones and Commissioners Fogarty and Rivera issued dissenting statements. See FCC Report No. 18597.

The appellants then filed two separate petitions for reconsideration on January 7, 1983, setting forth assignments of error that we need not recite here. Oppositions to the petitions for reconsideration and replies to the oppositions were filed, and in a Memorandum Opinion and Order adopted on August 12, 1983, and released on August 17, 1983, the petitions were denied. PTL of Heritage Village Church and Missionary Fellowship, Inc., 54 RAD. REG. 2d 824 (1983). Appellants maintain that they were not sent personal notice of this denial, that they learned of it only when a representative of the National Black Media Coalition directly contacted the Commission on September 29, 1983, and that they were able to obtain a copy of the order only on September 30, 1983. For purposes of this appeal, we take all that to be true (though we note the Commission's contention, based on its investigation, that personal notice was mailed).

On October 7, 1983, seven weeks after release of the order, appellants filed the present appeal. The Commission and intervenors PTL and David Livingstone argue that the appeal was not timely filed, that appellants have no standing, and that the Commission's denial of the petitions for rehearing was valid on several independent grounds. We reach only the first of these issues. II

This appeal is brought pursuant to 47 U.S.C. § 402(b) (1982), and is therefore subject to the requirement of 47 U.S.C. § 402(c) that "such appeal shall be taken by filing a notice of appeal with the court within thirty days from the date upon which public notice is given of the decision or order complained of" (emphasis added). This time limitation is jurisdictional, and if the present appeal cannot be brought within the terms of the statute, it must be dismissed. See Microwave Communications, Inc. v. FCC, 169 U.S. App. D.C. 154, 515 F.2d 385, 389 (D.C. Cir. 1974). Public notice of the Commission's denial of appellants' petitions for reconsideration was given on August 18, 1983; the October 7 notice of appeal was therefore outside the statutory thirty-day time period by almost three weeks.2

Appellants do not dispute this, but argue that their late filing was caused by the Commission's failure to provide them with personal notice of its decision, in violation of its own rules, 47 C.F.R. § 0.445(a) (1984), and the Administrative Procedure Act , 5 U.S.C. § 555(e) (1982). They claim that they reasonably relied on the Commission to provide the legally required notification, and that the otherwise applicable deadline must therefore be extended lest the Commission profit from its own violation of law.

We cannot agree. Section 402(c) makes public notice, not private notice, the operative event for purposes of the running of the statutory filing period, and it makes no exception for excusable failure to file within thirty days of proper public notice. Moreover, Federal Rule of Appellate Procedure 26(b) explicitly provides that "the court [may not] enlarge the time prescribed by law for filing a . . . notice of appeal from an order of an administrative agency, board, commission or officer of the United States, except as specifically authorized by law" (emphasis added). We cannot disregard the plain meaning of these provisions.

Appellants argue that this case is controlled by Gardner v. FCC, 174 U.S. App. D.C. 234, 530 F.2d 1086 (D.C. Cir. 1976). We think not. There, because "it appear[ed] to us that the late filing . . . was due, in substantial measure, to the FCC's omission to give Petitioner personal notice of any kind," 530 F.2d at 1091, we held "that the Commission abused its discretion in rejecting Gardner's petition for rehearing on the ground of untimeliness," id. at 1092. Central to our reasoning, however, was the following:

The Commission retains jurisdiction over matters before it until the time for judicial appeal has expired. During that time, it is obligated to reconsider, on its own motion if necessary, decisions which appear questionable in light of subsequent developments. We see no reason why the Commission's continuing jurisdiction ought not also support rehearing on the untimely petition of a party, where the late filing is in some sense attributable to a procedural violation by the Commission.

Id. at 1091 (footnotes omitted) (emphasis added). In this case, however, appellants are asking us to create for ourselves otherwise nonexistent jurisdiction, in a fashion that cannot be grounded in the statutory text. While the Commission may, and can even be required to, waive ...


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