Gardner v. Federal Communications Commission

530 F.2d 1086, 174 U.S. App. D.C. 234, 36 Rad. Reg. 2d (P & F) 725, 1976 U.S. App. LEXIS 12593
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 3, 1976
DocketNo. 75-1562
StatusPublished
Cited by46 cases

This text of 530 F.2d 1086 (Gardner v. Federal Communications Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gardner v. Federal Communications Commission, 530 F.2d 1086, 174 U.S. App. D.C. 234, 36 Rad. Reg. 2d (P & F) 725, 1976 U.S. App. LEXIS 12593 (D.C. Cir. 1976).

Opinion

Opinion for the Court filed by Circuit Judge WILKEY.

WILKEY, Circuit Judge:

Petitioner Gardner comes before us to appeal the FCC’s denial of his petition for reconsideration of a decision dealing with the Commission’s personal attack rule.1 Because the denial of reconsideration rested solely on failure to file within the statutory period, we are not here concerned with the merits of Gardner’s claim. Rather, this petition requires us to determine what notice of the decisions reached in Commission proceedings, if any, must be given to participants therein, and what effect the failure to give such notice has on the running of the limitation period for petitions for reconsideration.

Petitioner complained to the FCC on 23 April 1973 that certain statements broadcast by radio station WACT in Tuscaloosa, Alabama, on 22 February 1973, had constituted a personal attack triggering the remedial measures of 47 C.F.R. § 73.123.2 A Commission inquiry of 30 April 1973 drew a response from the licensee dated 2 May 1973, and a supplemental response dated 30 May 1973. In spite of the licensee’s arguments that the rule was not triggered because the broadcast statements were neither an attack on character, nor made in the course of discussion of a controversial issue of public importance,3 the Commission, on 30 January 1974, issued a Notice of Apparent Liability in the amount of $1000.4

The licensee responded to the Notice of Apparent Liability on 11 March 1974, with further factual allegations buttressing its view that the personal attack rule was not applicable. After two more responses by Petitioner and a final offering by the licensee, the Commission, on 29 October 1974, reversed its previous position and concluded that no violation of the rule had occurred5 — eighteen months previously.

The issues before us arise from the events which subsequently took place. Although FCC regulations command that opinions and orders are to be sent to the parties to the actions in which they issue,6 the Commission failed to give any notice to Mr. Gardner of the decision which it had reached. According to Petitioner’s counsel, he learned of the decision quite inadvertently during “the second week in November, 1974,” received a copy of the order after personal inquiry “on or about” 20 November 1974, and mailed a petition for rehearing on 27 November 1974.7 According to the Commission, this petition was not received until 2 December 1974, thirty-four days after the 29 October decision which it sought to appeal. In a decision released 8 May 1975, over two years after the personal attack complained of, the Commission denied the petition on the ground that it had not been filed within [237]*237thirty days after public notice of the decision was given, as required by 47 U.S.C. § 405 (1970).8

The gist of Petitioner’s claim on appeal is that the denial of personal notice made it extremely difficult for him to file his petition within the thirty day statutory period, and that it was therefore improper for the Commission to deny his petition on the ground of untimeliness. Two legal issues are thus presented. First, Petitioner must show that he had a legal right to receive notice of the decision. Second, he must establish that entertainment of the petition is justified, in this case, in light of the failure to give such notice.

I. RIGHT TO NOTICE

The FCC argues that there is no legal requirement that it give personal notice to parties as to the decisions that it reaches. In particular, it cites the language of 47 U.S.C. § 405, which sets forth the limitation period on petitions for rehearing as “thirty days from the date upon which public notice is given”, and which contains no requirement of personal notice.9 The Commission concedes that its usual practice, as set forth in regulation, is to send copies of its decisions to the parties, but argues that this is done as a matter of courtesy and is not legally required.

Contrary to the Commission, we hold that Petitioner was entitled to the notice denied here, on at least two separate and independent legal grounds. First, such notice is explicitly required by section 6(d) of the Administrative Procedure Act.10 Second, it is also required in light of the established Commission practice of providing such notice, under the principle that an agency is bound to obey its own rules.11

The Administrative Procedure Act requires that prompt notice be given of any denial of a written request in connection with any agency proceeding.12 It is clear that the FCC action at issue is a denial of a written request to the Commission. It is likewise clear from the definitions given within the Act that this case involves an “agency proceeding” to which this section prima facie applies.13

There is no basis here for finding a special exception to the section’s applicability. It is true, as respondent alleges, that 47 U.S.C. § 405 does not contain any reference to personal notice. However, neither does it purport on its face to be the exclusive source of Commission notice obligations, and it does not follow that the obligation does not exist, simply because it is not contained in that section. Nor may the Commission assert that compliance with section 6(d) would impose undue burdens upon it, since its usual practice is to provide such notice as a matter of course. Thus the notice requirement is applicable and was violated by the Commission in this case.

Quite apart from the Administrative Procedure Act, we hold that the failure to give notice is also objectionable as a violation of established procedures, publicly announced by the Commission itself. [238]*238The Commission’s own regulations announce that “[a]ll opinions and orders of the Commission . . . are nailed [sic ] to the parties . . .14 and the failure to do so here violates the general principle of administrative law that an agency is [bound by its own rules.15 The argument for requiring consistent adherence to established and announced procedures is especially clear in this case. Once having stated that it will give such notice, the Commission has created a reasonable expectation in the parties to the proceeding that such notice will be received. While it may not be the safest practice, there appears no compelling reason why a party ought not to rely on this assurance of notice as his sole means of learning that his case has been decided. Thus having created the expectation, the Commission ought not to be heard to say that its own rule does not create a legal burden of giving notice.

II. PETITIONER’S RIGHTS IN LIGHT OF FCC FAILURE TO GIVE NOTICE

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Bluebook (online)
530 F.2d 1086, 174 U.S. App. D.C. 234, 36 Rad. Reg. 2d (P & F) 725, 1976 U.S. App. LEXIS 12593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-v-federal-communications-commission-cadc-1976.