232 F2d 73 Klein v. Federal Communications Commission

232 F.2d 73

Abraham KLEIN, Appellant,



Page Boy, Inc., Intervenor.

No. 12453.

United States Court of Appeals District of Columbia Circuit.

Argued December 19, 1955.

Decided February 2, 1956.

Mr. Sam Rosenblum, New York City, for appellant.

Mr. Edward W. Hautanen, Counsel, Federal Communications Commission, of the bar of the Supreme Court of Washington, pro hac vice, by special leave of Court, with whom Messrs. Warren E. Baker, Gen. Counsel, Federal Communications Commission, J. Smith Henley, Associate Gen. Counsel, Federal Communications Commission, and Richard A. Solomon, Asst. Gen. Counsel, Federal Communications Commission, were on the brief, for appellee.

Mr. Stanley S. Neustadt, Counsel, Federal Communications Commission, also entered an appearance for appellee.

Messrs. James A. McKenna, Jr., and Vernon L. Wilkinson, Washington, D. C., entered appearances for intervenor.

Before EDGERTON, Chief Judge, and BAZELON and BASTIAN, Circuit Judges.


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Appellant Klein and Intervenor Page Boy, Inc., filed mutually exclusive applications with the Federal Communications Commission for facilities in New York City in the Domestic Public Land Mobile Radio Service. At a comparative hearing before the trial examiner, it appeared that the Postmaster General had issued a fraud order against appellant about fifteen months earlier. Upon consideration of the circumstances underlying the issuance of that order, the trial examiner determined in his initial decision that (1) appellant "is lacking in the requisite character qualifications to become the permittee * * * [and therefore] he is not entitled to comparative consideration with the competing applicant"; and (2) the intervenor's application should be granted.


On June 4, 1954, the Commission affirmed the examiner's findings of fact and decision with respect to appellant but held in abeyance the decision on intervenor's application. Subsequently on August 9, 1954, the Commission granted intervenor's application and this appeal followed denial of appellant's petition for reconsideration.1


Upon the record as a whole, including the trial examiner's findings, we cannot say that the Commission acted arbitrarily and beyond its statutory authority.2 Its action is therefore




1. Intervenor moved to dismiss this appeal on the ground that appellant failed to file a timely appeal from the denial of his application. We agreed with the Commission, however, that appellant could obtain review of the denial upon this appeal. Accordingly we denied intervenor's motion to dismiss.

2. See Federal Communications Comm. v. WOKO, Inc., 1946, 329 U.S. 223, 67 S.Ct. 213, 91 L.Ed. 204.