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12/29/71 Greater Boston Television v. Federal Communications

December 29, 1971














Tamm, Leventhal and MacKinnon, Circuit Judges.


Nos. 17785, 17788, 23154, 23159, 23172

December 29, 1971 1971.CDC.270



The latest turn in the Boston-TV Channel 5 controversy came on August 20, 1971, when the Federal Communications Commission filed a Request with this court to recall its mandate of June 23, 1971, affirming the FCC's order awarding a construction permit to Boston Broadcasters, Inc. . The Request was made for the purpose of permitting oral argument before the FCC to consider whether to reopen the comparative proceeding as to the action it should take in the light of information concerning charges that one of BBI's principals had violated securities laws in connection with a sale of unregistered stock of another company.

On one level the matter involves the conflicting objectives of finality of administrative disposition, and flexibility to serve the public interest by adjusting dispositions to take account of new material. On another level, the problem is one of sound relationships between a regulatory agency and a reviewing court. That broad reference suffices to give us a general bearing, and we proceed to the particular situation. I. PRIOR PROCEEDINGS

A. Prior to this court's opinion

The mandate of affirmance sought to be recalled issued as the result of our opinion in Greater Boston Television Corp. v. F.C.C., 143 U.S.App.D.C. 383, 444 F.2d 841 (1971). The prior proceedings related there may be briefly capsuled. The applications filed in 1954 for Channel 5 were resolved in 1957 with a grant to WHDH, Inc., which began broadcasting that year. In 1958 we remanded for an evidentiary hearing on the possibility of an infirmity in the award due to improper ex parte contacts with the FCC's Chairman by Robert Choate of WHDH. In 1960 the FCC held that the grant to WHDH was voidable for such contact, granted temporary authorization for WHDH to continue broadcasting and reopened for a comparative proceeding. We approved that plan in 1961.

In 1962 the FCC again awarded a construction permit to WHDH, but granted an operating license for only four months. In 1963, the FCC designated the WHDH application for renewal for comparative hearing with applications filed during a specified 60-day period by BBI and others. In 1964 we suspended consideration of the appeals from the 4-month license and remanded for consideration of the impact of Mr. Choate's death. We authorized the FCC to consolidate this consideration with the comparative hearing already scheduled.

In 1966 the Hearing Examiner issued an initial decision in favor of granting renewal to WHDH. On January 23, 1969, the Commission reversed the decision of the Hearing Examiner, and entered an order denying the application of WHDH and granting that of BBI. The FCC duly denied rehearing, but it stayed the effectiveness of its decision and order until 30 days "after final disposition of any judicial review" of that order. *fn1

The case was argued to us May 25, 1970, and on November 13, 1970, we filed a judgment of affirmance, and issued in support thereof our opinion, *fn2 cited above.

B. Between this court's opinion and mandate

On November 30, 1970, WHDH filed a petition for rehearing and suggestion for rehearing en banc. Its motion for acceptance of a late filed petition was duly granted.

On January 7, 1971, WHDH filed a motion to hold in abeyance consideration of its petition for rehearing pending action by the FCC on its petition to the FCC to request this court to remand the case. WHDH submitted that newly-discovered evidence showed that a commissioner purporting to make up the necessary FCC majority had not voted in support of the FCC's 1969 decisions and order. Our order of February 16, 1971, denied both the petition for rehearing and the motion to hold in abeyance.

On March 3, 1971, the FCC issued a memorandum and order denying the WHDH petition requesting the FCC to apply to this court for a remand. On March 10, 1971, WHDH filed in this court its own motion to remand; this was denied on April 15, 1971. *fn3

Our order of April 15, 1971, also made provision for stay of mandate to permit WHDH to seek Supreme Court consideration. We ordered that the stay be revoked unless WHDH filed a petition for certiorari on or before April 23, 1971, stating that was a date "we can be confident will permit Supreme Court disposition this term."

Certiorari was sought by WHDH on April 23, 1971. On June 14, 1971, the Supreme Court denied the certiorari petitions of both WHDH and the other appellants. The mandate of this court issued to the FCC on June 23, 1971. No stay of mandate was sought pursuant to either Supreme Court Rule 25(2) or F.R.A.P. 41(b). II. THE COMMISSION'S REQUEST TO COURT TO RECALL MANDATE

On July 23, 1971 -- the 30th day following its receipt of this court's mandate -- the FCC adopted an order declaring that the stay it had ordered exactly two years earlier (see note 1) had "automatically vacated." It stated that WHDH should be afforded a reasonable opportunity to wind up its affairs and authorized WHDH to continue operating pending further order of the Commission. It issued construction permit BPCT-3170 to BBI on July 23, 1971, and a modified permit on July 29, 1971. Thereafter BBI began construction of its station in accordance with its permit.

The FCC filed on August 20, 1971, a Request that this court recall its mandate issued June 23, 1971, and remand for the limited purpose of authorizing the Commission to hear oral argument en banc to consider what procedure it should follow in light of a civil action brought by the SEC against Nathan H. David, a principal in BBI.

The papers before the FCC, filed in this court by leave, show that on April 2, 1971, BBI advised the Commission and all parties of the filing of an action against Mr. David by one David Freedman, alleging violation of security laws in connection with Freedman's purchase of unregistered stock in Synergistics, Inc., from certain officers and directors of that company in a transaction arranged by Mr. David. On April 21, 1971, WHDH filed with the Commission a petition for further proceedings based on these allegations and the lawsuit. Various additional pleadings were filed. On July 29, 1971, WHDH filed a copy of the SEC's complaint filed that day against Synergistics, Inc., which listed Mr. David as a defendant.

The Commission's Request states that the Commission has made no assessment of these filings, that they are relevant on their face because the Commission's decision attached substantial importance to the criterion of integration (participation in management by owners) and Mr. David's participation entered into its determination favoring intervenor BBI with respect to this criterion. The Request further states that the Commission recognized the need for expedition, and would, if authorized by the court, hold argument and decide within a month whether reopening the comparative case would serve the public interest and what other procedures might be appropriate.

BBI filed an Opposition to the FCC's Request. *fn4 WHDH filed a Response stating that it was bringing these matters to the attention of the Supreme Court -- where it had on July 9, 1971, filed a petition for rehearing of the denial of certiorari -- and that the request should be both broader as to the scope of remand than had been sought by the FCC and should be addressed "initially" to the Supreme Court.

On September 30, 1971, this court entered an order as to further procedure which advised that we proposed to defer action until the Supreme Court acted on the WHDH petition for rehearing. We also requested that, in the event such rehearing was denied by the Supreme Court, the Commission file with this court a supplement to its Request setting forth

(a) A submission of the respects if any in which the Commission considers that the actions of intervenor BBI (including its officers, directors and controlling stockholders) have compromised the integrity of either the administrative process or the judicial process by reason of any misrepresentation to the tribunal, secret influence or like matter.

(b) A submission of the authority of this court, with discussion of such statutory provisions as may be material, to order the recall of a mandate entered in accordance with this court's opinion, on the basis of newly discovered evidence on matters determined by the Commission.

(c) A submission: (1) Whether the Commission has authority to protect the public interest in the premises by inserting conditions separating Mr. David from any continuing interest or office in BBI, pending further consideration by the Commission, and upon final determination by the Commission if it so orders. (2) The respects, if any, in which such conditions would fail to preserve the public interest. *fn5

The Supreme Court denied the WHDH petition for rehearing on October 12, 1971. The FCC filed its Supplement. Our growing file also includes subsequent submissions by both WHDH and BBI, including the information that on November 12, 1971, Mr. David was indicted in the Massachusetts state court on the misdemeanor of involvement in the sale of securities without proper notice to state officials. Leave for all these filings is hereby granted. III. GENERAL DOCTRINES APPLICABLE TO RECALL OF APPELLATE MANDATE

We approach the problems raised by the Commission's request to this court to recall its mandate by first reviewing what may be termed the general doctrines of appellate justice concerning recall of mandate -- power, procedure, and grounds of action.

1. Concept of expiration of "term" of no current significance

The FCC puts it as a matter of consequence that its request for recall of mandate was filed within the same term as the mandate. This was indeed a consideration of decisive significance under the common law "term" rule applied by the Federal courts. That doctrine stated that all judgments and orders of a court "however conclusive in their character" are under the control of the court during the term when rendered, but, unless steps be taken during the term, final judgments "pass beyond its control" to correct errors. Bronson v. Schulten, 104 U.S. 410, 415, 26 L. Ed. 797 (1882). However the significance of the "term" concept was removed by the enactment in 1948 of 28 U.S.C. § 452: "The continued existence or expiration of a term of court in no way affects the power of the court to do any act or take any proceeding."

While this section of the Judicial Code is generally referred to for its provision liberating the courts from an incapacity because of expiration of the term, the provision flatly states that "the continued existence of a term" does not affect the power of the court. Our researches disclose nothing pertinent in the legislative history to qualify the impact of these words. The amendment in 1963, changing "term" to "session," wrought no substantive change.

Our conclusion is that the continuance of the "term" is without importance. The rules of our court do establish that the court has one term each year, beginning the second Tuesday of September each year. But the change in term is without significance in terms of power, or even for that matter in administration. *fn6 The court's decision whether to use the power to recall a mandate may of course be affected by the timeliness of the request, *fn7 but a request may reflect untimeliness though filed 11 months after judgment, at the same term, and may reflect diligence, though filed at a different "term," when filed only two months after mandate. The "term" concept is not of itself of importance.

2. Inherent authority of appellate court to recall mandate to prevent injustice

When the "term" concept was abolished for Federal district courts by the Federal Rules of Civil Procedure, a rule was adopted, Rule 60, which defined the authority of the district courts to take action -- within the same proceeding -- to correct, clarify and modify outstanding judgments. Rule 60 states both grounds of action and time limits. *fn8 It also expressly preserves the jurisdiction, where appropriate, to entertain a new proceeding or action to vacate or provide relief against a mandate. *fn9

When the "term" concept was abolished for the Federal appellate courts by 28 U.S.C. § 452, no rule was adopted that expressly covered the subject of modification of judgments.

Rules 40 and 41 of the Federal Rules of Appellate Procedure , effective July 1, 1968, specify time limits for issuance of the mandate and for petitions for rehearing. *fn10 These rules also contain provision for stay of mandate to permit consideration of a petition for rehearing or petition for certiorari, and permit the court to enlarge or shorten times prescribed. *fn11

In the absence of express provision on recall of appellate mandate, in either F.R.A.P. or the Rules of our court, we turn to general doctrine. In our view that doctrine has the same content as the rule of court discussed in Hines v. Royal Indemnity Co., 253 F.2d 111, 114 (6th Cir. 1958): "A mandate once issued will not be recalled except by order of the court for good cause shown." The "good cause" requisite for recall of mandate is the showing of need to avoid injustice. "Usually the issuance of a mandate by this court means that the litigation has come to an end. . . . This court can, however, recall its mandate to prevent injustice." Gradsky v. United States, 376 F.2d 993, 995 (5th Cir. 1967).

While the authority of the appellate court to recall a mandate to prevent injustice is not expressly set forth in a statute, it has a foundation in statute as well as the inherent power of a court. We refer to 28 U.S.C. § 2106 -- a longstanding provision that was reiterated in the 1948 enactment of the Judicial Code that abolished the "term" concept. Section 2106 expressly authorizes an appellate court to affirm, modify, or vacate any judgment or order of a court brought before it for review, and enter such judgment or require such further proceedings "as may be just under the circumstances." 28 U.S.C. § 2106. While § 2106 applies in terms only to review of a court order, its basic principle is not inapposite to appellate review of agency orders.

3. Particular grounds for recall ...

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