269 F.2d 221 (D.C. Cir. 1959)
In 1956 the Federal Communications Commission initiated a rule-making proceeding to consider amending its Table of Television Channel Assignments by reassigning VHF Channel 2 from Springfield, Illinois, to St. Louis, Missouri, and Terre Haute, Indiana.1
Sangamon Valley Television Corporation, an applicant for Channel 2 at Springfield, participated in the proceeding along with other parties including intervenor Signal Hill Telecasting Corporation, which sought the channel for St. Louis.2 On October 12, 1956, the Commission issued a notice specifying that written comments on the proposals were to be filed by November 15, 1956, with reply comments due shortly thereafter and no additional comments permitted except upon request or good cause shown.3
The Commission extended the deadline for reply comments to December 28, 1956, and the parties filed timely submissions.4 While the proceeding remained pending, Harry Tenenbaum, president of Signal Hill, made a series of private contacts with individual Commissioners.5 He visited their offices to discuss his interest in obtaining Channel 2 for St. Louis, hosted each as a luncheon guest, and provided turkeys to every Commissioner in both 1955 and 1956.6
On February 20, 1957, seven weeks after the extended cutoff date and ten days before the Commission's decision, Tenenbaum sent each Commissioner a letter containing data intended to show that assigning Channel 2 to St. Louis would serve substantially more homes in Illinois than an assignment to Springfield.7 These letters were not made part of the public record. On March 1, 1957, the Commission issued its order effectuating the channel shift and modifying Signal Hill's existing authorization to allow temporary operation on Channel 2.8
Subsequently, testimony before a congressional subcommittee in May and June 1958 revealed the extent of these ex parte communications. The Supreme Court then vacated the earlier affirmance of the Commission's order and remanded the case to the Court of Appeals for further consideration in light of the new information.9
Whether private ex parte approaches to individual Commissioners during a pending rule-making proceeding on television channel assignments invalidate the resulting Commission order?10
Interested attempts to influence any member of the Commission except by the recognized and public processes go to the very core of the Commission’s quasi-judicial powers. Because the proceeding involved not only allocation of TV channels among communities but also resolution of conflicting private claims to a valuable privilege, basic fairness requires such a proceeding to be carried on in the open.11
Yes. In the established facts, Harry Tenenbaum, president of intervenor Signal Hill Telecasting Corporation, visited the offices of individual Commissioners to discuss his desire to have Channel 2 assigned to St. Louis while the proceeding remained pending. He hosted each Commissioner as a luncheon guest and gave turkeys to every Commissioner in both 1955 and 1956.
These private approaches were not placed in the public record, so opposing parties such as Sangamon Valley Television Corporation could not question the contentions.12
The private ex parte approaches invalidate the Commission's order, and the proceeding must be reopened.13
Whether the filing of additional arguments after the Commission's announced cutoff date for comments, without compliance with the stated procedures for additional filings, requires that the proceeding be reopened?14
Agency action that substantially and prejudicially violates the agency’s rules cannot stand. When the Commission proposed an allocation of TV channels, it prescribed a cutoff date before which interested persons could file written comments. It also set a cutoff date for reply comments. The notice stated explicitly that no additional comments may be filed unless specifically requested by the Commission or good cause is established.15
Yes. The ESTABLISHED FACTS establish that the Commission extended the deadline for reply comments to December 28, 1956, and stated that no additional comments could be filed without a request or showing of good cause. Seven weeks after that extended cutoff date and ten days before the decision, Tenenbaum sent each Commissioner a letter with additional arguments about the number of homes served by an assignment to St. Louis.16
These letters were not made part of the public record and therefore violated the Commission's practice forbidding off-the-record contentions that the rule forbids parties to make on the record.17
The filing of additional arguments after the cutoff date requires that the proceeding be reopened for an evidentiary hearing.18