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,
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
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
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,
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