Before WILBUR K. MILLER, PRETTYMAN and DANAHER, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT.
Petition for Rehearing Denied March 17, 1955.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER
WILBUR K. MILLER, Circuit Judge.
In these cases we are asked by Camden Radio, Inc., the licensee of a radio station at Camden, Arkansas, to set aside two orders of the Federal Communications Commission by which it considers itself aggrieved. One of these, which was entered under the authority of 310(b) of the Communications Act *fn1 without a hearing, authorized Leo Howard to assign to D. R. James, Jr., the construction permit for a second station at Camden which had been issued to him July 1, 1951. The other order complained of, published May 11, 1953, denied Camden Radio's protest, filed April 24 under § 309(c) of the Act, *fn2 against the order of April 1st on the ground that Camden Radio had not shown itself to be a "party in interest" entitled to protest that order.
The events which preceded and gave rise to the two orders in question will be briefly noted. Howard had applied August 11, 1952, for a station license covering his construction permit, but the Commission had withheld action on the application because it had information tending to show he had misrepresented and concealed facts in obtaining the permit. In those circumstances, Howard applied October 13, 1952, for permission to assign the construction permit to James. With that application pending, the Commission notified Howard November 5, 1952, of his alleged wrongdoing, said it could not at that time find the grant of a station license to be in the public interest, and informed him that, as provided in § 309(b) of the Communications Act, he might reply to the charges within thirty days.
Howard responded November 19, 1952, but did not seriously controvert the charges of concealment and misrepresentation. We quote from his letter:
". . . I do assume full responsibility of the entire matter and consequently want to get out of the matter altogether. . . . In order that I can get relieved of it altogether, have nothing more to do with it, I was willing to assign, and have so advised the Commission, any and all interest."
Considering the reply unsatisfactory, the Commission on December 31, 1952, designated the license application for hearing, pursuant to 309(b), upon the issues of concealment and misrepresentation, and generally to obtain full information concerning the situation.
On January 28, 1953, Howard again wrote the Commission, saying inter alia:
". . . I do not believe a hearing could produce any additional information from what you already have. From the application to transfer this license permit to D. R. James, Jr., the exhibits and supplementing information attached thereto and my letter to you of November 19, 1952, the Commission has a record of all the facts in connection with this application.. . ."
He added, "I realize my mistakes . . ." and said he wished "to be relieved of all interest, connection and association or responsibility." Accordingly he requested reconsideration of the order designating his license application for hearing, and asked approval of his pending application for assignment of the construction permit to James.
Over the vigorous protest of the Chief of its Broadcast Bureau, *fn3 the Commission on March 11, 1953, cancelled the hearing theretofore designated with respect to Howard's application for a station license, and removed it from the hearing docket "to be further considered in connection with our examination of the pending application for assignment of construction permit." Then, without a hearing, the Commission consented to the assignment of the construction permit by an order published April 1, 1953.
To this order Camden Radio filed a protest on April 24 purportedly under § 309(c) of the Act, describing itself as a party in interest because it would suffer economic injury through competition from the new station. The protest alleged that Howard's deception of the Commission constituted grounds for revoking his construction permit; and that operating control of the new station would remain in the hands of parties who had participated in the unauthorized construction of the new station, including the assignee's father who had been an undisclosed ...