NAB reports (Jan-Dec 1937)

application of appellant was set for hearing before an examiner on February 3, 1936. Plaintiff avers that upon the aforesaid facts it is law¬ fully possessed of a valid and absolute construction per¬ mit; that the only action which remained for the Com¬ mission to perform was to issue its approval of a site for the transmitter of the proposed station, but the Commis¬ sion refuses to approve a transmitter site, and without such approval plaintiff may not commence construction and its permit may automatically be forfeited and lost; that plaintiff will thereby suffer irreparable damage. Plaintiff alleges that it had no remedy at law and only by the prompt interposition of a court of equity can plaintiff’s interest be protected and irreparable injury to it avoided, wherefore, it prays that the court may grant to plaintiff an injunction enjoining the defendant from holding any hearing upon plaintiff’s application to con¬ struct the new radio station set out in its original appli¬ cation, and to issue a modified permit to plaintiff for the construction of the radio station first applied for by it. The defendant filed a motion to dismiss the bill of complaint above set out upon the ground, among others, that plaintiff had a plain, speedy, and adequate remedy at law under Sec. 402 (b) of the Communications Act of 1934 which provides for appeals to the United States Court of Appeals for the District of Columbia, and the bill of complaint does not show that plaintiff has ex¬ hausted his legal remedy thereunder. Thereupon the district court sustained the motion and dismissed plaintiff’s bill. We are of the opinion that the decision of the district court is correct. It is fundamental that a court of equity will not issue an injunction where plaintiff has a plain, adequate, and complete remedy at law. Appellant had such a remedy under Sec. 402 (b), Subsec. (2) of the Communications Act of 1934 (48 Stat. 1093) which provides in part as follows: “An appeal may be taken, in the manner hereinafter provided, from decisions of the Commission to the Court of Appeals of the District of Columbia [now United States Court of Appeals for the District of Columbia] in any of the following cases: (1) By any applicant for a construction permit for a radio station, or for a radio station license, or for renewal of an existing radio station license, or for modification of an existing radio station license, whose application is refused by the Commission. (2) By any other person aggrieved or whose interests are adversely affected by any decision of the Commission granting or refusing any such application.” Under Subsection 2 the appellant had a right to appeal immediately from the refusal of the Commission to make final, without a hearing, the original grant to it. It has been repeatedly held that the foregoing statute delegates to this court exclusive jurisdiction over all such appeals as the present one, and that other courts will not grant equitable relief by injunction in such cases. United States v. American Bond & Mortgage Co., 31 F. (2d) 448; White v. Fed. Radio Commission, 29 F. (2d) 113; Sykes v. Jenny Wren Co., 64 App. D. C. 379; 78 F. (2d) 729. Section 267 of the Judicial Code (28 USCA 384) reads as follows: “Suits in equity shall not be sustained in any court of the United States in any case where a plain, ade¬ quate, and complete remedy may be had at law.” In the case of Matthews v. Rodgers, 284 U. S. 521, Mr. Justice Stone, referring to sec. 267 of the Judicial Code, said: “The effect of this section which was but declaratory of the rule in equity, established long before its adoption, is to emphasize the rule and to forbid in terms recourse to the extraordinary remedies of equity where the right asserted may be fully protected at law.” It is contended by appellant that the case of Federal Radio Commission v. Stromberg-Carlson Tel. Manufactur¬ ing Co., 60 App. D. C. 31, is authority for a different rule. We think however that this contention cannot be sus¬ tained. In that case the company was an existing licensee and the terms of its unconditional license had been changed by the Commission during a license period with¬ out notice to the licensee and without a hearing or an opportunity to the licensee to be heard. The opinion of this court in that case was that the ruling of the Commis¬ sion was not simply erroneous, but was void. The decision does not furnish authority for the appellant’s claim in the present case. It is contended further by appellant that Sec. 414 of the Communications Act of 1934 is contrary to our conclu¬ sion. The section reads as follows: “Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” It may be observed however that the rule followed in our present decision does not “abridge or alter the reme¬ dies now existing at common law or by statute” but is con¬ sistent with such existing remedies at common law and by statute. The decree of the lower court is therefore affirmed. A ffirmed. TRENTON STATION RECOMMENDED The Journal Company, Milwaukee, Wis., the MidAtlantic Corporation, Washington, D. C., and the Tren¬ ton Times, Trenton, N. J., all applied to the Federal Communications Commission for construction permits in their respective cities, all asking for 1570 kilocycles, and unlimited time on the air. The Journal and MidAtlantic Corporation asked for 1,000 watts with the Trenton Times asking for 250 watts. Examiner Ralph L. Walker in Report No. 1-395 recom¬ mended that the application of the Trenton Times be granted and that the other two applications be denied. The Examiner stated in his report that “while the programs of research and experimentation of the Journal Company and the Mid-Atlantic Corporation may be ex¬ pected to provide additional and desirable data in con¬ nection with the development and practical application of high fidelity broadcasting, the proposal of the Trenton 2053