The American Civil Liberties Union v. Federal Communications Commission, and United States of America

The American Civil Liberties Union (ACLU) brings this petition to review two specific aspects of the Federal Communications Commission’s order promulgating rules and regulations pertaining to cable television (CATV) set forth in 36 F.C.C.2d 141 (1972) with the reconsideration appearing in 36 F.C.C.2d 326 *1346 (1972). The two aspects challenged are the failure of the Commission (1) to impose common carrier obligations on cable television access channels and (2) to limit cablecasting by the cable owner to one channel. We affirm the order and deny the petition for review.

I.

Jurisdiction and Venue.

Jurisdiction to consider ACLU’s petition rests on 28 U.S.C. § 2342 , 28 U.S.C. § 2344 , and 47 U.S.C. § 402 (a). In an earlier proceeding involving this petition before the Court of Appeals, District of Columbia Circuit, the Commission moved to dismiss the petition as one not timely filed, and, in the alternative, to transfer the petition to this circuit pursuant to 28 U.S.C. § 2112 (a) (1970). The Court of Appeals of the District denied the motion to dismiss and transferred the petition to this circuit. 158 U.S. App.D.C. 344, 486 F.2d 411 (1973). Although the Commission…

(dissenting):

With deference it is submitted that the majority was in error in reaching the merits of the American Civil Liberties *1352 Union’s petition for review. It seems apparent that the ACLU has no standing to bring this suit and that the dispute between the ACLU and the FCC is not now ripe for review.

I. Standing

The court reasons that this is a case in which a determination of the merits is necessary in order to decide whether there is standing, and that therefore the standing question need not be directly confronted. The recent decision of the Supreme Court in Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975), precludes such an approach. The Supreme Court there stated: “. standing in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal . . . .” At 500, 95 S.Ct. at 2206 . Later, the Court stated: “. . . reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” 422 U.S. at 501 , 95 S.Ct. at 2206 . The Court went on to assume for purposes of determining standing that, on a motion to dismiss, the plaintiffs in the case…

523 F.2d 1344 The AMERICAN CIVIL LIBERTIES UNION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, and United States of America, Respondents. No. 73-2886. United States Court of Appeals, Ninth Circuit. Sept. 16, 1975. Dennis Grossman (argued), American Civil Liberties Union, New York City, for petitioner. Gregoary M. Christopher (argued), Counsel, Federal Communications Commission, Washington, D. C., for respondents. OPINION Before CHAMBERS, TRASK and SNEED, Circuit Judges. SNEED, Circuit Judge: 1 The American Civil Liberties Union (ACLU) brings this petition to review two specific aspects of the Federal Communications Commission's order promulgating rules and regulations pertaining to cable television (CATV) set forth in 36 F.C.C.2d 141 (1972) with the reconsideration appearing in 36 F.C.C.2d 326 (1972). The two aspects challenged are the failure of the Commission (1) to impose common carrier obligations on cable television access channels and (2) to limit cablecasting by the cable owner to one channel. We affirm the order and deny the petition for review. I. 2 Jurisdiction and Venue. 3 Jurisdiction to consider ACLU's petition rests on 28 U.S.C. § 2342 , 28 U.S.C. §…