Before: ROBINSON, Chief Judge, McGOWAN, Senior Circuit Judge, and JOHNSON,* United States District Judge for the District of Columbia.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN
Opinion for the Court filed by Senior Circuit Judge MCGOWAN.
MCGOWAN, Senior Circuit Judge: This matter is before the court on appeal from a decision of the Federal Communications Commission . In a memorandum opinion and order issued November 4, 1977, the FCC rendered final the prior decision of its Review Board that appellants Hudson C. Millar, Jr., and Jerden Bullard had been guilty of "strike" conduct in connection with a 1966 application for a permit to construct a new standard broadcast station in Sumiton, Alablama. The Review Board based its decision upon a de nove review of testimony adduced at hearings held four years earlier before a hearing examiner who retired without rendering an initial decision. The Review Board concluded that appellants had instigated the formation of Sumiton Broadcasting Company, Inc., and participated in the broadcast license application of that company, with the intent to block or impede a mutually exclusive application for a station in nearby Cullman, Alabama. The latter station would have offered competition to appellants' own Cullman station, WKUL. Sumiton Broadcasting Co., 45 F.C.C.2d 933 (Rev. Bd. 1974), review denied in relevant part, 66 F.C.C.2d 656 (1977). As a result, the FCC staff has deferred acting on appellants' applications for renewal and assignment of broadcast licenses for their radio stations in Florida and in Alabama.
Appellants raise a number of issues regarding the Commission's handling of this case. We affirm the Commission as to all of these, but discuss at length only two that are at the center of this case: whether the Commission's policy with regard to strike conduct was sufficiently clear when appellants acted in 1965 so that it may fairly be applied to them, and whether the agency was required to hold new hearings after the hearing examiner who heard and saw the witnesses retired. *fn1 I
Mutually exclusive applications for authority to construct new radio stations broadcasting on a frequency of 1540 kHz. at Sumiton and Cullman, Alabama, were filed, respectively, by Sumiton Broadcasting Company, Inc., and Cullman Music Broadcasting Company (Cullman Music). The Cullman Music application was tendered for filing with the Commission on May 26, 1965, and was returned for technical deficiencies on November 18, 1965.
Shortly after appellant Millar was informed of the initial filing of the Cullman Music application, he approached Dan Mitchell, one of the principals of Cullman Music, to discuss the application. The overall thrust of the conversation at that meeting is not disputed. During their meeting, Millar tried to interest Mitchell in buying WKUL, Millar's station in Cullman, or in investing in another proposed broadcast venture. When Mitchell rejected these overtures, Millar mentioned the possibility of bringing an economic injury protest and the amount of time and money such a procedure would cost each of them. Although Millar and Mitchell disagreed in their testimony over whether Millar's mention of an economic injury protest constituted "a threat" -- the Review Board concluded that it did -- there is no dispute that Millar raised the subject.
Admittedly concerned about the competition a new station would produce, Joint Appendix at 223, Millar subsequently discussed with his partner, appellant Bullard, various possibilities for improving the facilities of their station, including that of applying for a better frequency. Millar then asked his Washington consulting engineer to prepare a study of available frequencies in Cullman.Millar and Bullard concluded, however, that note of the available frequencies would improve their Cullman facilities. The apparently then investigated the possibility of opening stations in Birmingham, thirty-six miles away, or Sumiton, twenty-eight miles away. The eventually decided Sumiton was too small for them, and that Birmingham already had too many stations.
During this -- before the Cullman Music application was returned in November 1965 -- Millar also visited several local residents who had written letters that were submitted with the Cullman application testifying, inter alia, to the projected economic growth of the area. Millar succeeded in persuading one of them to amend his views in a new letter to the Commission.
The day he learned the Cullman application had been returned, Millar spoke with his Washington communications counsel and asked whether it would be legal for appellants "[t]o use the frequency [themselves] or to give assistance ot anybody else that wanted to use the frequency." J.A. at 196; accord J.A. at 201. In an affidavit, the attorney stated that he advised that, while a strike allegation might be made, none would be upheld on the basis of "the providing of assistance to a Sumiton group solely in the preparation of a 1540 kHz application." J.A, at 291. *fn2
Three days later, Millar and Bullard approached Wayne Sims a former employee of Millar's at WKUL who had long expressed an interest in applying for a license for a station. The three met and discussed the possibility of Sims constructing a new station in Sumiton Alabama. Here, again, while some elements of the conversation are in dispute, the parties agree on certain crucial points. It is clear, at least, that Millar and Bullard suggest to Sims a plan for constructing a radio station in Sumiton; that Bullard showed him the frequency study prepared for Cullman, which is twenty-eight miles from Sumiton, indicating that a number of frequencies, including 1540 kHz., were available; that Bullard also showed Sims his own "thumbnail sketch" of frequencies available in Sumiton; that Bullard said he thought the best frequency for Sumiton would be 1540 kHz.; that that frequency was selected that evening; and that Millar suggested the capital structure for the corporation that was eventually formed to prepare the application. Sims testified without contradiction that Millar offered to advance or give Sims the $500 that that capital structure called for as Sims's contribution.
The principal testimonial conflicts concerning this meeting revolve around whether Millar admitted that his purpose was to block the Cullman Music application. Sims stated in an affidavit, and later testified, that Millar admitted such a purpose, and that Millar further said that appellants' involvement should be kept secret, and, that it was necessary to file the Sumiton application before the Culllman Music application could be amended and refiled, Millar and Bullard denied that they admitted an intent to block, that they told Sims to keep their conversations secret, and that they told him the application had to be filed soon. The also said that the frequency selected for Sumiton was not predetermined, but rather that Sims and Bullard mutually decided that 1540 kHz. would be "the best frequency" for that town, JA. at 201, 249.
Within two days of this meeting Millar called his Washington consulting engineer, Julius Cohen, to inform him that he, Cohen, would be preparing the engineering portion of a Sumiton radio station application. *fn3 The engineer dictated a memorandum immediately after the call, as was his practice. The memorandum, dated December 1, 1965, reads as follows:
Millar asked that we proceed with the preparation of the application for 1540 KC in Sumiton, Alabama. Mr. Millar will not be the principal. There are a group of four or five who are filing this application. Millar asks that we proceed. We will get site information such as photos and property sketches, business and industrial areas within the community and so forth. It is desirable to get the application filed before the prior Cullman application refiles an application that had been returned. In any event, the Sumiton group has been considering this frequency for many months and will proceed regardless of what action the Cullman applicant may make.
J.A. at 299. This memorandum, which appears to indicate that Millar had a substantial role in the Sumiton application and that he expected the Cullman application to be refiled, was retracted in part by Cohen at the hearing. Cohen, testifying after Millar had denied crucial parts of the memorandum, said that Millar had not ordered him to proceed and that it was Cohen who had ...