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CAMPOS v. F.C.C.

United States District Court, Northern District of Illinois, E.D


February 6, 1980

CARLOS CAMPOS, ISMAEL RODRIGUEZ, ROSA ROMERO, RUBEN TAPIA, JAVIER NAVARRO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
FEDERAL COMMUNICATIONS COMMISSION; RICHARD E. WILEY, CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION; E.J. GALINS, ENGINEER IN CHARGE, CHICAGO REGIONAL FIELD OPERATIONS BUREAU, FEDERAL COMMUNICATIONS COMMISSION; NORTH CENTRAL AIRLINES, INC., DEFENDANTS.

The opinion of the court was delivered by: Aspen, District Judge.

MEMORANDUM OPINION AND ORDER

The named plaintiffs in this action are aliens who have been admitted into the United States for permanent residence. All of these plaintiffs have sought employment in the private sector which, by Federal Communication Commission (FCC) regulation, requires them to obtain various commercial radio operator licenses.*fn1 The plaintiffs sought to secure such licenses. The defendants, however, informed the plaintiffs that they were ineligible for commercial operator licenses under the terms of the Federal Communication Act, 47 U.S.C. § 303(l) which, with two exceptions not relevant to this case, prohibit the FCC from issuing commercial operators' licenses to aliens.*fn2

The plaintiffs have filed this suit on behalf of themselves and others similarly situated challenging the constitutionality of section 303(l) and the defendants' actions thereunder. They assert that the across-the-board denial of operators' licenses to aliens violates the due process guarantee of the fifth amendment because it creates a suspect classification — alienage — which deprives plaintiffs' of their liberty interest in pursuing the private employment options of their choice. The defendants counter that the prohibition is constitutional as a rational exercise of the federal government's power to regulate immigration and naturalization and safeguard the national security. The case is now before the Court on the parties' cross-motions for summary judgment.

Before addressing the merits of these contentions, it is appropriate for the Court to ascertain whether it possesses jurisdiction of this case. This question is especially pertinent in a case involving the communications laws, since Congress has set forth a specific scheme for federal court jurisdiction of cases arising under the Communications Act. Upon a careful examination of that scheme, the Court concludes that it lacks jurisdiction to entertain this action.

Section 155(d)(7) of the Act requires that a party seeking judicial review of an FCC order first exhaust available administrative remedial procedures. This requirement, however, is inapplicable where recourse to administrative review procedures would be futile. Secret v. Brierton, 584 F.2d 823, 827 (7th Cir. 1978). Defendants maintain that the FCC under no circumstances could have waived applicability of section 303(l) and granted plaintiffs the licenses they sought.*fn3 Since the plaintiffs could not have obtained relief by recourse to the administrative process, the fact that some of the plaintiffs may have failed to exhaust that process poses no bar to judicial review.

Even given the availability of judicial review of the license denials, there remains the critical question of which court is empowered to hear the plaintiffs' claims. Section 402(a) of the Act states:

  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
  [28 U.S.C. § 2342(1)].

Under section 2342(1),

  The court of appeals has exclusive jurisdiction
  to enjoin, set aside, suspend (in whole or in
  part), or to determine the validity of —

    (1) all final orders of the Federal
    Communications Commission . . .

Subsection (b) of section 402 provides that final orders by the FCC which pertain to the licensing process are within the exclusive review jurisdiction of the United States Court of Appeals for the District of Columbia. See Cook v. United States,
394 F.2d 84, 86 (7th Cir. 1968).

Taken together, these provisions indicate that any attempt to set aside or determine the validity of a final order issued under the Act involving the licensing process must be brought to the District of Columbia Court of Appeals. In this case, it is clear that the plaintiffs seek to have an FCC action declared invalid, and that the action pertains to the licensing process under the Act. Thus, the pivotal determination is whether the denial of licenses to plaintiffs was a final order within the meaning of the Act.

There are a number of factors to be considered in determining the finality of an administrative order. One relevant consideration is whether the administrative process has reached a point at which it would not be disrupted by judicial review. Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970). Another factor is whether the order appealed from imposes an obligation or denies a right. Illinois Citizens Committee for Broadcast v. F.C.C., 515 F.2d 397, 402 (D.C. Cir. 1975). Finally, "in cases where the record is unchallenged, where the issues are legal and not factual, and where notice has been provided to the parties the court of appeals has held that it has jurisdiction despite the absence of an administrative hearing." Writers Guild of America, West, Inc., v. F.C.C., 423 F. Supp. 1064, 1080 (C.D.Cal. 1976).

The FCC action in this case fulfills all the requisites of a final order. It is clear that judicial review of the FCC action would not disrupt the administrative process; indeed, any recourse to that process by the plaintiffs would be futile. The agency action denied plaintiffs a right which they believe they possess. Moreover, as the parties acknowledge by the fact that they filed cross-motions for summary judgment, the dispute in this case revolves around legal, not factual, issues.*fn4

Plaintiffs nonetheless argue that since their challenge involves only the constitutionality of a statutory provision of the Communications Act, and not the discretion of the agency, they are not appealing a "final order" within the intendment of section 402. The fact that the plaintiffs invoke the constitutional guarantee of due process, however, does not exempt this case from the procedures set forth in the Communications Act.*fn5 The grievance in this particular case arises out of the defendants' refusal to grant the licenses under the Act, and seeks to determine the validity of the refusal. This is the type of final order which the Act directs plaintiffs to challenge, if at all, in the District of Columbia Court of Appeals. See Morrisseau v. Mount Mansfield Television, Inc., 380 F. Supp. 512, 515 (D.Vt. 1974).

Accordingly, the Court is required to dismiss this action. It is so ordered.*fn6


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