Preemption of Local Regulation of Radio Antennas: A Post- Deerfield Policy for the FCC

James R. Hobson

Jeffrey O. Moreno*

Introduction

I. Background

A. The FCC's Rulemaking

B. The Exhausting Carino Saga

II. The Second Circuit's Decision Reversing the FCC

A. The Ruling in Brief

B. The Historical Foundation

C. Alternative Theories Available to the Second Circuit

1. Collateral Estoppel

2. Full Faith and Credit

3. Primary Jurisdiction

4. Exhaustion of Administrative Remedies

III. Options Remaining to the FCC

A. Totally Preempt Local Regulations

B. Establish Early Precedents for Applying Section 25.104

C. Initiate an Independent Enforcement Proceeding

1. A Section 312(b) Proceeding

2. A Section 403 Proceeding

3. Avoidance of Case or Controversy and Collateral Estoppel

Conclusion

Localities, in the exercise of their police powers, often have adopted restrictions on the size and/or placement of these antennas. Restrictions are enacted for various health, safety, or aesthetic reasons. Unfortunately, the restrictions may significantly hinder or completely block the reception of radio signals. Consequently, these restrictions have created a substantial controversy between those asserting a right to receive signals and those who believe communities have a right to regulate land use in the public interest.

The Federal Communications Commission (FCC or Commission) attempted to balance these competing interests on several occasions.(note 1) It recognized legitimate reasons for local restrictions on antenna size and location, but it also recognized statutory objectives supporting rights reasonably necessary to receive unhindered interstate communications.(note 2) As a result, the Commission adopted rules that partially preempt local regulations. Through these rules, the Commission sought to guarantee the reception of communications signals while allowing municipalities to regulate when there are justifiable and articulated local objectives.

One such rule that applies to home satellite dishes (HSDs) is 47 C.F.R. sec. 25.104.(note 3) Hundreds of thousands of these HSDs, which are saucers that vary from six to twelve feet in diameter and have a distinctive, highly visible shape, are believed to be in operation.(note 4) When the regulation was adopted in 1986, the FCC cautioned local communities not to discriminate against HSDs in favor of other types of radio antennas. If municipal ordinances did single out HSDs for special treatment, they were required to have clearly articulated health, safety, or aesthetic objectives.(note 5) Furthermore, such ordinances could not unduly impede the reception of satellite signals in terms of cost or other burdens of compliance.(note 6)

Because the Commission's HSD rule only partially preempts local regulations, there have been numerous court challenges to the legitimacy of local zoning regulations.(note 7) Having anticipated this problem in its rulemaking, the Commission noted that it did not intend to become a national zoning board reviewing every complaint that comes before it.(note 8) Rather, it left the construction and enforcement of its rules to local institutions and the courts. Presumably, the Commission envisioned itself as a forum of last resort if local relief were wrongly denied.(note 9)

The Commission's authority to decide cases in the last resort, however, has recently been called into question by the decision of the United States Court of Appeals for the Second Circuit in Town of Deerfield v. FCC.(note 10) The Second Circuit held that the Commission could not place itself in the position of reviewing the decision of a federal court.(note 11) Although narrowly applied in Deerfield, the same reasoning potentially could be expanded to prohibit the FCC's review of any state or federal court decision.

This Article will evaluate the Second Circuit's decision in Deerfield and address the options available to the FCC in order to balance the competing federal and state regulatory interests. Part I will establish the background leading up to the Deerfield decision, including FCC and court decisions. Part II will evaluate Deerfield's reasoning and briefly examine various legal concepts implicated by this case. Part III will address and evaluate the remaining FCC options after Deerfield. The conclusion will recommend the best means available to the Commission to balance the competing federal and state interests.

I. Background

The Commission tentatively concluded that it possessed preemptive authority because local regulation stood as an obstacle to accomplishing a legitimate congressional purpose.(note 15) Specifically, the Commission observed that without satellite antennas the domestic satellite services licensed by the Commission were useless.(note 16) In addition, the Commission concluded that recent amendments to the Communications Act reflected a congressional intent to ensure that Americans without access to cable programming would be able to obtain it.(note 17) Finally, the Commission observed that it had previously preempted state regulation that interfered with the distribution of interstate communications by MATV systems carrying terrestrial microwave Multipoint Distribution Service (MDS) programming.(note 18) The Commission also preempted state attempts to apply cable regulation to SMATV.(note 19) Thus, the Commission concluded that "excessive state and local regulation of satellite antennas interferes with a conditional right to receive programming via home earth stations. When state regulations are unreasonably interfering with or frustrating this right or the provisions of the Communications Act or Commission rules . . . preemption is warranted."(note 20)

In determining the proper scope of its preemption, the Commission observed that, "Although the proper focus in a preemption action is not the relative importance to the states of their own laws, it is incumbent on this Commission to take note of the traditionally local character of zoning regulation."(note 21) Thus, the Commission concluded that it "should not unduly interfere with the legitimate affairs of local governments when they do not frustrate federal objectives."(note 22) Consistent with this conclusion, the Commission determined that a complete preemption would be an unwarranted federal intrusion into legitimate state and local matters.(note 23)

In adopting its final rule, the Commission restated its conclusions from the Notice of Proposed Rulemaking. It found that the broad mandates of Section 1 of the Communications Act(note 24) and a recent amendment to the Communications Act(note 25) "create[d] certain rights to receive unscrambled and unmarketed satellite signals. These statutory provisions establish a federal interest in assuring that the right to construct and use antennas to receive satellite delivered signals is not unreasonably restricted by local regulation."(note 26) However, the Commission also expressed an intent to accommodate local interests by only partially preempting local zoning regulations.(note 27)

The regulation adopted by the Commission states:

Preemption of local zoning of earth stations.

State and local zoning or other regulations that differentiate between satellite receive-only antennas and other types of antenna facilities are preempted unless such regulations:

(a) Have a reasonable and clearly defined health, safety or aesthetic objective; and

(b) Do not operate to impose unreasonable limitations on, or prevent, reception of satellite delivered signals by receive-only antennas or to impose costs on the users of such antennas that are excessive in light of the purchase and installation cost of the equipment.

Regulation of satellite transmitting antennas is preempted in the same manner except that state and local health and safety regulation is not preempted.(note 28)

The Commission clearly warned that, in adopting this regulation, it did not intend to operate as a national zoning board.(note 29) It reached this conclusion after finding that there had been increased interest and publicity surrounding this issue and that the large number of cases that might be presented for individual review would place a severe burden on the administrative process.(note 30) The Commission did, however, leave open the prospect that it "would entertain requests for further action if it appears that local authorities are generally failing to abide by our standards."(note 31) The Commission required any party requesting review to demonstrate that it had exhausted all other remedies.(note 32)

B. The Exhausting Carino Saga

B. Dish or Tower Type Antennae:

General Regulations:

a. In R-1 or R-2 District no dish or tower type antennae shall be erected on any lot less than one-half (1/2) acre.

b. No dish or tower type antennae shall be located in a front yard or corner lot fronting on more than one street.

c. No dish or tower type antennae shall be erected on any lot without the issuance of a building permit by the enforcement officer(s) and subject to the following so as to be cosmetically acceptable for all adjoining landowners:

1. All towers and antennae shall have setbacks from any lot line equal to or greater than the height of the proposed structure, but in any case not less than thirty (30) feet.

2. Only one such structure shall exist at any one time on any lot or parcel.

3. The applicant shall present documentation of the possession of any required federal or state license.

4. The owner of such a structure shall assume complete liability in case of personal or property damage.

d. Dish Type--special regulations:

1. No part twelve (12) feet above ground level.

2. Projected area:

Solid type--51 square feet

Mesh type--80 square feet[.](note 34)

After the Deerfield Zoning Board of Appeals announced its intention to enforce this regulation against Carino, he wrote the FCC asking for help.(note 35) The Commission responded in a letter, which directed Carino's attention to the Commission's regulation codified at 47 C.F.R. sec. 25.104 and further advised him to use the rule to "pursue legal remedies on a local level."(note 36) In addition, the Commission restated its intention not to function as a national zoning board that would "offer legal opinions with respect to individual problems."(note 37) While recognizing that "communities are generally failing to abide by our standards,"(note 38) the Commission declared that "[r]equests for relief under the Commission's rule must demonstrate that all other remedies including legal action with the assistance of private counsel have been pursued and exhausted."(note 39)

Carino accepted the Commission at its word and embarked on a five-year journey that eventually brought him full circle back to the Commission. The journey began when Carino appealed the zoning board's decision to the New York state courts, where he raised several arguments including preemption of the zoning regulation pursuant to 47 C.F.R. sec. 25.104.(note 40) The New York State Supreme Court denied Carino's petition in its entirety. With respect to the preemption claim, the court found that the regulation "does not differentiate between satellite receive-only facilities and other antennas, it applies to both dish and tower type antennas."(note 41) Thus, the court concluded that the zoning ordinance was not preempted because it did not discriminate against satellite-dish antennas.(note 42) This decision was affirmed by the Appellate Division for substantially the same reasons.(note 43) The New York state court decisions are hereinafter collectively referred to as Carino I.

In a last-ditch effort to obtain relief, Carino took his case to the federal courts.(note 44) There, the Town of Deerfield asserted that Carino was collaterally estopped from arguing preemption because the issue had been fully and fairly litigated and necessarily decided in the state court actions. The district court agreed and held that it was required to honor the state court decisions under the Full Faith and Credit Clause of the U.S. Constitution.(note 45) This determination was upheld by the United States Court of Appeals for the Second Circuit.(note 46) The first round of federal court decisions is hereinafter collectively referred to as Carino II.

Having exhausted his local remedies, Carino returned to the Commission in January 1991 to seek a declaratory ruling that the Deerfield zoning ordinance was preempted by 47 C.F.R. sec. 25.104.(note 47) The Commission noted that Carino had done everything required in pursuit of local relief.(note 48)

Deerfield once again raised the defense of collateral estoppel. It argued:

Although the F.C.C. has discretion in determining issues within its jurisdiction, it is still bound by the law and it must respect final decisions of competent courts, at least as the decisions apply to the original parties to judicial proceedings. It is not within the power of the F.C.C. to act as a court of last resort to review judicial determinations. . . . Merely by retaining jurisdiction in this matter the Commission has placed itself in the position of reviewing the decision of a higher court. Such a power has obviously not been granted to the Commission by Congress.(note 49)

The Commission accepted jurisdiction and determined that the ordinance was indeed overly restrictive and thus preempted.(note 50) The Commission refused to give collateral estoppel or res judicata effect to the federal court decisions because there had been no federal court ruling on the merits, nor had the prior federal court decisions addressed whether Carino was estopped from "bringing the Deerfield ordinance to the FCC's attention."(note 51) Furthermore, even if collateral estoppel would ordinarily apply, the Commission concluded that its application in this case would be unfair to Carino since he was only following the Commission's instructions.(note 52)

The Town of Deerfield appealed the FCC's order to the Second Circuit, arguing that the Commission's failure to give collateral estoppel effect to the prior state and federal court judgments was in error.(note 53) The FCC defended its order on the grounds that (1) it had discretion to disregard the prior judgments, (2) collateral estoppel was not applicable because this was an issue of law rather than fact, (3) application of collateral estoppel would be unfair to Carino, and (4) the FCC should make the final determination of preemption because of its particular expertise.(note 54) The Second Circuit reversed the Commission, but on grounds somewhat different from those briefed or argued by either party.(note 55) The FCC elected not to appeal this decision.(note 56)

II. The Second Circuit's Decision Reversing the FCC

The Second Circuit discussed at length the allocation of judicial power under the Constitution. Citing cases from the earliest days of the United States, the court focused upon the Case or Controversy Clause, which prohibits Congress from requiring an Article III court to "express an opinion on a case where its judicial power could not be exercised, and where its judgment would not be final and conclusive upon the rights of the parties."(note 58) The court held:

A judgment entered by an Article III court having jurisdiction to enter that judgment is not subject to review by a different branch of government, for if a decision of the judicial branch were subject to direct revision by the executive or legislative branch, the court's decision would in effect be merely advisory.(note 59)

Next, the court determined that an administrative agency may not simply choose to ignore federal court judgments.(note 60) Finally, the court concluded that federal courts are required by statute to accord state court judgments "the same full faith and credit . . . as they have by law or usage in the courts of such State . . . from which they are taken."(note 61)

Applying these principles to the facts and procedural history of the Carino case, the Second Circuit concluded that the FCC erred by refusing to recognize the conclusive effect of the prior federal court judgment that gave collateral estoppel effect to the state court judgment.(note 62) "By incorporating in its regulation a policy of requiring `exhaust[ion]' of judicial remedies, the Commission in effect sought to modify the jurisdiction of Article III courts, with respect to any issue of the preemptive effect of sec. 25.104, to deprive them of the power to render anything but advisory opinions."(note 63)

The court found the decision was not unfair to Carino because he had an opportunity to fully litigate his claim in the state courts.(note 64) Furthermore, the Commission's decision to eschew immediate agency action could not "alter the constitutional principle that an agency has no power to review, alter, or prevent enforcement of the judgment of an Article III court."(note 65) Thus, the Second Circuit finally concluded that:

by declining to become involved in the controversy over whether sec. 25.104 preempted the Deerfield Ordinance until after the Article III court proceedings had been completed and insisting that it is entitled to decide anew questions decided by the courts, the FCC has in effect attempted (1) to impose on the courts the obligation to give no opinion on preemption other than one that would be purely advisory, and/or (2) to arrogate to itself the power to (a) review or (b) ignore the judgments of the courts. In light of the principles discussed above, all of these attempts are impermissible as a matter of law.(note 66)

The Second Circuit's conclusions appear to be based upon sound legal principles that are supported by extensive case law dating back to the birth of the United States as a nation.

B. The Historical Foundation

At issue in Hayburn's Case was a congressional act providing pensions to Revolutionary War veterans and their families.(note 69) The Act called for the federal circuit courts to make the initial determination of a veteran's eligibility to receive benefits under the Act. The courts would certify their decisions to place an individual on the pension list to the Secretary of War. The Secretary, however, had authority to withhold a name from the list if the Secretary suspected "imposition or mistake."(note 70) A final decision would then be made by Congress.(note 71) The circuit courts, in unanimously refusing to enforce the Act, concluded that the Act required courts merely to give advice, which was beyond the scope of the courts' constitutional authority.(note 72)

Nearly eighty years later, the Supreme Court decided a similar case for the same reasons in United States v. Ferreira.(note 73) Congress, pursuant to a treaty with Spain, established a forum in the District Court for the Northern District of Florida to hear claims for losses by Spanish citizens in Florida.(note 74) Decisions favorable to the claimants were to be reported to the Secretary of the Treasury, who would pay the award only if satisfied that it was just and equitable.(note 75) In Ferreira, an appeal was taken to the Supreme Court rather than directly to the Secretary. Unlike Hayburn's Case, the Supreme Court did not hold that the federal courts lacked jurisdiction, but only that they were not exercising judicial power.(note 76) The Court deemed Congress to be within its treaty powers in establishing the district court as a tribunal for the resolution of claims.(note 77) However, when sitting as such a tribunal, the district court was not exercising judicial power and thus an appeal to the Supreme Court was not available.(note 78)

The FCC's satellite preemption rulemaking and its subsequent decision in the Deerfield Memorandum Opinion and Order similarly placed the FCC in a position to review federal court decisions. Although the FCC did not expressly state that it would review federal court decisions, as occurred in Hayburn's Case and Ferreira, such a conclusion was inescapable.(note 79) By concluding that Carino's claim was not collaterally estopped, the Commission effectively reversed federal and state court decisions. To the extent that the FCC was indeed reviewing a federal court's decision, it violated long-recognized judicial principles.

C. Alternative Theories Available to the Second Circuit

1. Collateral Estoppel

Deerfield had a strong argument for collateral estoppel. The issues raised in the state court proceedings and the FCC proceedings were precisely the same. The issue was litigated in the first action before the state courts; the parties were identical; and the issue was necessarily decided in the state courts by a final judgment on the merits. Thus, the key elements for invoking issue preclusion were met.(note 81)

The FCC first declared that collateral estoppel was not implicated because neither of the prior federal court decisions addressed whether Carino would be estopped from bringing his action to the Commission. Technically, the Commission was correct in arguing that Carino II did not address the application of collateral estoppel in a case before the Commission. This point was important because the collateral estoppel effect of a state court judgment in a subsequent federal administrative proceeding is an open question. The Second Circuit took the position, however, that its prior application of collateral estoppel in Carino II "conclusively resolved the dispute between Carino and Deerfield."(note 82) The Commission thus erred by not recognizing this conclusiveness and thereby rendering Carino II advisory.

Second, the FCC declared that even if collateral estoppel would ordinarily apply, it should not be employed in this case because of the unfairness exception. The doctrine of collateral estoppel does not apply when its application would be fundamentally unfair to a party.(note 83) According to the Commission, applying collateral estoppel would have been unfair to Carino, who was only following the Commission's directions when he pursued his judicial remedies before petitioning the Commission.(note 84) The Second Circuit rejected this argument because Carino had adequate opportunity to litigate the issue in the state courts and, regardless, no unfairness could "alter the constitutional principle that an agency has no power to review, alter, or prevent enforcement of the judgment of an Article III court."(note 85)

The Commission could also have relied upon the public interest exception to the collateral estoppel doctrine.(note 86) A final decision that the Deerfield ordinance was not preempted would have had effects far beyond the Carino backyard. Deerfield would be free to apply the ordinance to all current and future HSD owners within its jurisdiction. A separate suit by or against these other individuals would not be barred by collateral estoppel because these individuals would not have been in privity with Carino.(note 87) A non-preemptive outcome of the Deerfield Memorandum Opinion and Order, however, might have emboldened Deerfield's enforcement of its ordinance and cast a chilling effect upon potential HSD purchasers. Thus, the same interests the Commission invoked in enacting 47 C.F.R. sec. 25.104 could also have formed a basis for not applying collateral estoppel in the Deerfield case.(note 88) It is questionable, however, whether the Second Circuit would have recognized this exception in light of the previous discussion.

The Second Circuit in Deerfield thus did not ignore the collateral estoppel issue. Rather, it relegated the issue to a supporting role in the case or controversy argument. The court did not say that the Commission should have relied on collateral estoppel but rather that, in failing to give preclusive effect to prior federal court decisions applying collateral estoppel, the Commission rendered those earlier decisions merely advisory.(note 89) The court then proceeded to review and reject the exceptions the Commission found for not applying collateral estoppel.(note 90)

2. Full Faith and Credit

The courts have never fully resolved whether full faith and credit applies to federal courts or, instead, is limited to the full faith and credit of one state to another state's judgments. Although there are federal cases that could be construed to support both points of view, the more recent decisions seem to hold that the constitutional doctrine does not apply to federal courts.(note 92) The issue has never really been decided, however, because Congress, early in our nation's history, resolved this question by enacting a statutory full faith and credit provision expressly applicable to federal courts.(note 93)

Thus, when Carino took his case to the federal courts after fully litigating and losing in New York state court, the federal courts were compelled to find that he was collaterally estopped by giving full faith and credit to the prior New York state court judgments. That result, however, was certainly not a foregone conclusion when the same case was presented to the FCC.

Congress enacted Section 1738 long before the proliferation of federal agencies, and thus Congress did not intend for the provision to apply specifically to agencies.(note 94) This omission raises the question of whether collateral estoppel would have applied if Carino had gone to the FCC directly from state court without having also sought relief from the federal courts.

The Second Circuit's reliance on case or controversy rather than collateral estoppel might suggest that the answer to this question is far from certain. Deerfield argued that the prior state court decisions should collaterally estop Carino from bringing his complaint to the Commission.(note 95) The Second Circuit, however, did not address collateral estoppel in this context. Rather, its opinion was concerned exclusively with the prior federal court decisions, which never reached the merits of Carino's complaint. The case or controversy rationale would not have been applicable to the prior state court decisions because that provision of the Constitution solely applies to Article III federal courts.(note 96) Only by applying full faith and credit to federal agencies would collateral estoppel compel the FCC to honor the prior state court judgments.

The Second Circuit thus may have sought deliberately to avoid this issue by raising case or controversy sua sponte. The point is critical here because this factual scenario, where a complainant comes to the Commission directly from state court, could very easily arise again and lead to an outcome different from that reached by the Second Circuit in Deerfield.

3. Primary Jurisdiction

Primary jurisdiction arises when a case is originally cognizable in the courts but involves factual determinations that require, or should be resolved according to, agency expertise.(note 100) In such a case, a court may defer action on an issue within the agency's primary jurisdiction while allowing the appropriate agency to dispose of the matter.(note 101) The decision of the agency is then subject to judicial review under normal appellate standards.(note 102)

When the plaintiff lacks an assured ability to initiate an agency action, a court may be reluctant to apply primary jurisdiction.(note 103) If an agency refused to institute proceedings, a court would be free to resume determination of the case.(note 104) Thus, the FCC effectively waived any primary jurisdiction it may have had to decide Carino's petition.

4. Exhaustion of Administrative Remedies

Exhaustion is most often employed as a prerequisite to judicial review of agency actions.(note 105) Its purpose is to permit an agency to determine a case without court interference, thus giving the court the benefit of agency expertise as well as judicial economy.(note 106) When a plaintiff seeks a declaratory judgment in the courts prior to agency action, however, exhaustion does not apply.(note 107)

The purposes of the doctrine of exhaustion of administrative remedies include (1) promoting judicial economy by requiring parties to pursue all administrative solutions before seeking judicial relief, (2) preventing judicial interference in the administrative process, and (3) allowing courts to benefit from agency expertise by permitting agencies both to develop a complete factual record and to render a decision.(note 108)

Exhaustion is equivalent to the rule against interlocutory appeals.(note 109) Accordingly, another rationale for the doctrine is to prevent regulated parties from delaying or obstructing the agency's ability to conduct an orderly proceeding.(note 110) Exhaustion also prevents conflicting resolution of issues by the courts and agencies,(note 111) precisely the problem encountered in the Carino cases.

Unless restricted or mandated by statute, a court has discretion to apply the exhaustion principle to a case.(note 112) Usually an agency's enabling legislation vests it with exclusive initial responsibility for interpreting and enforcing the statutory provisions pertaining to its jurisdictional subject matter.(note 113) There are exceptions to exhaustion, however, and the courts and agencies may waive the principle.(note 114) Immediate court review is available if the party establishes that the agency clearly exceeded its authority.(note 115)

In the Carino cases, exhaustion would not have been applicable for at least two reasons. First, no administrative cases were pending for the courts to defer to in requiring exhaustion of administrative remedies. Second, the FCC effectively waived the exhaustion requirement by refusing to hear the case in the first instance.

III. Options Remaining to the FCC

A. Totally Preempt Local Regulations

Total preemption, however, ignores potentially valid health, safety, or aesthetic objectives underlying many local regulations, raising questions concerning the validity of total preemption. The state interest in these issues would have to be weighed against the competing federal interest.

If total preemption were permissible, the town of Deerfield's victory in court would indeed have been a Pyrrhic one. In so vigorously fighting to defend its local ordinance against preemption rather than attempting to recraft it in a nondiscriminatory fashion, Deerfield may have forced the FCC to preempt totally a town's right to place any zoning restrictions upon antennas.

B. Establish Early Precedents for Applying Section 25.104

The compromise in this approach centers upon the Commission's role. Instead of preserving for itself the final right to decide these cases, the Commission would have to decide a number of cases in the first instance. Thus, the FCC would become a national zoning board in the early stages of implementation. Once it had laid down sufficient precedent, however, the Commission could significantly reduce, if not eliminate, the cases it accepts, and return to its policy of exhaustion.

For all this added security, the option would not ensure against the recurrence of a Carino-type situation. Once the Commission forgoes its right to decide a case in the first instance, either by turning away a petition for relief or refusing primary jurisdiction, it may lose all control over the case. Thus, a decision of a court, although wrong, would be final and would not be subject to Commission review.

C. Initiate an Independent Enforcement Proceeding

1. A Section 312(b) Proceeding

Where any person (1) has failed to operate substantially as set forth in a license, (2) has violated or failed to observe any of the provisions of this chapter, . . . or (3) has violated or failed to observe any rule or regulation of the Commission authorized by this chapter or by a treaty ratified by the United States, the Commission may order such person to cease and desist from such action.(note 118)

Under subpart (3), the FCC is given the express authority to issue cease and desist orders for violations of its regulations. This would include violations of 47 C.F.R. sec. 25.104.

It could be argued, however, that because Section 312(b) is located in Title III of the Act, which deals with radio regulations, and because Section 312 as a whole is concerned with station licenses, its application to unlicensed satellite antennas is improper. The legislative history of Section 312(b), however, does not indicate an express intent to limit its effect to licenses.(note 119)

In addition, at least one circuit court has expressly held that Section 312(b) is not limited to licenses under Title III. In General Telephone Co. v. FCC,(note 120) the D.C. Circuit squarely faced this issue. The appellants, various telephone common carriers, challenged the FCC's issuance of cease and desist orders under Section 312(b) "as a means of arresting the continued construction and operation of certain channel distribution systems."(note 121) The FCC had issued cease and desist orders under Section 312(b) to prohibit the telephone companies from constructing what amounted to cable television systems.(note 122) The phone companies argued that, as common carriers regulated under Title II of the Act, Section 312(b) was not applicable to them.(note 123) The court rejected this argument by looking directly to the language of Section 312(b). The court observed:

Initially, Section 312(b) makes clear that it is directed at "any person . . . [who] has violated or failed to observe any of the provisions of this Act . . . [or] any rule or regulation of the Commission authorized by this Act . . . ." The pervasive application of the language employed in Sections 312(b)(2) and 312(b)(3) is suggested by Section 312(b)(1)'s narrower reference to "any person [who] has failed to operate substantially as set forth in a license . . . ." It seems that when the drafters intended to focus on licensees, they had no problem doing so.(note 124)

No other court has decided to the contrary. Furthermore, the D.C. Circuit has exclusive jurisdiction to review FCC cease and desist orders.(note 125)

Thus, under Section 312(b), the Commission could, upon its own initiative, issue a cease and desist order against any community whose zoning regulations violated 47 C.F.R. sec. 25.104. Such an order would have a broad effect by prohibiting enforcement against any person and would not be tailored or addressed to a specific individual.

2. A Section 403 Proceeding

institute an inquiry, on its own motion, in any case and as to any matter or thing concerning which complaint is authorized to be made, to or before the Commission by any provision of this Act, or concerning which any question may arise under any of the provisions of this Act, or relating to the enforcement of any of the provisions of this Act. The Commission shall have the same powers and authority to proceed with any inquiry instituted on its own motion as though it had been appealed to by complaint or petition under any of the provisions of this Act, including the power to make and enforce any order or orders in the case, or relating to the matter or thing concerning which the inquiry is had, excepting orders for the payment of money.(note 127)

The plain language clearly contemplates an agency-initiated enforcement proceeding.(note 128) Such a proceeding was also common under Section 13(2) of the Interstate Commerce Act, from which Section 403 is derived.(note 129) Section 403 further enhances the FCC's powers under Section 312(b) and permits the FCC to bring any action that could have been brought by complaint.(note 130)

Section 403 would thus appear to give the FCC sufficient authority to take virtually any action sua sponte that it could take anywhere else in the Communications Act pursuant to petition or complaint. This would encompass a petition such as that filed by Carino and would also provide the necessary statutory authority to initiate a Section 312(b) cease and desist action on its own motion. Such action would be in the broad public interest rather than tailored to the circumstances of an individual complainant.

3. Avoidance of Case or Controversy and Collateral Estoppel

Application of collateral estoppel requires (1) a final judgment on the merits in the prior case in which the issues were actually litigated and necessarily resolved, (2) that the parties be identical to or in privity with the parties in the prior case, and (3) that the issue be the same in both actions.(note 132) A set of facts similar to those in the Carino cases would implicate the first and third elements of collateral estoppel. However, if the Commission were to initiate, on its own motion, a proceeding under Sections 312(b) or 403 of the Communications Act, there would be no identity of parties and probably no privity. It would be very difficult to argue that the FCC is in privity with individual plaintiffs in earlier court proceedings, especially if the FCC does not participate in any way in the prior cases. Additionally, because the FCC represents the broader public interest, its position cannot adequately be represented by individual complainants who reflect only their own interests. Thus, the second prerequisite for the application of collateral estoppel would not be satisfied.

To be sure, identity of parties or privity is not an absolute requirement of collateral estoppel;(note 133) the Supreme Court has upheld the application of a type of collateral estoppel known as non-mutual collateral estoppel.(note 134) Nevertheless, the Court has also recognized that non-mutual collateral estoppel should not usually be applied against the government(note 135) because "`the Government is not in a position identical to that of a private litigant,' both because of the geographic breadth of Government litigation and also, most importantly, because of the nature of the issues the Government litigates."(note 136)

As a corollary to this rule, it is well-settled that the United States will not be barred from independent litigation by the failure of a private plaintiff.(note 137) This rule emerged most prominently in two contexts, the Voting Rights Act of 1965(note 138) and Equal Employment Opportunity Commission (EEOC) complaints, but has not been limited to these areas.

In City of Richmond v. United States, the federal government, under the Voting Rights Act of 1965, challenged the annexation of certain surrounding communities by the City of Richmond, Virginia.(note 139) The Voting Rights Act of 1965 prohibited such action unless either (1) approved by the Attorney General or the Attorney General failed to act within sixty days, or (2) the U.S. District Court for the District of Columbia had issued a declaratory judgment that the action "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color."(note 140)

Pending review by the Attorney General, Curtis Holt, a private plaintiff, commenced a suit in the Eastern District of Virginia challenging the annexation under the Fifteenth Amendment.(note 141) The district court held that the annexation had an illegal racial purpose.(note 142) The Fourth Circuit reversed the lower court, however, and found that Richmond had valid reasons for the annexation.(note 143) The City of Richmond subsequently filed suit in the U.S. District Court for the District of Columbia seeking a declaratory judgment approving the annexation.(note 144) That suit eventually came before the Supreme Court.(note 145)

Richmond contended before the district court that the Fourth Circuit's prior finding of no unlawful purpose should be given estoppel effect on the question of the purpose behind the annexation.(note 146) The district court refused, citing various grounds, and instead concluded that the annexation was adopted by Richmond with a discriminatory racial purpose.(note 147) On appeal, the Supreme Court upheld the district court's conclusion and further stated, "Whatever the merits of the District Court's position on this collateral-estoppel issue, we find controlling the nonparticipation of the United States and the Attorney General in the Holt I case."(note 148)

City of Richmond formed the basis for an even stronger opinion by the Fifth Circuit in United States v. East Baton Rouge Parish School Board.(note 149) This case, also arising under the Voting Rights Act of 1965, followed an earlier challenge in 1975 by black residents of the parish asserting violations of their voting rights. Their case was dismissed for failure to state a claim and the dismissal was affirmed by the Fifth Circuit.(note 150)

In the suit brought by the United States, the district court held that the United States was barred by the unsuccessful prior litigation of the private plaintiffs and by the failure of the Attorney General to object to the plan when submitted for his approval under 42 U.S.C. sec. 1973c.(note 151)

The Fifth Circuit, in a brief and pointed opinion, reversed the district court's conclusion, finding it to be

directly contrary to the general principle of law that the United States will not be barred from independent litigation by the failure of a private plaintiff. This principle is based primarily upon the recognition that the United States has an interest in enforcing federal law that is independent of any claims of private citizens . . . . Also, any contrary rule would impose an onerous and extensive burden upon the United States to monitor private litigation in order to ensure that possible mishandling of a claim by a private plaintiff could be corrected by intervention.(note 152)

A similar case arose in United States v. Texas.(note 153) The government challenged voter registration procedures that had successfully withstood challenges by private plaintiffs in two prior suits.(note 154) The district court refused to apply res judicata, finding that the United States was not in privity with the two prior plaintiffs.(note 155) The court found that the government had a broader interest than the private plaintiffs because it represented the voting rights of all persons who were required to adhere to the challenged voter registration procedures.(note 156)

In a case similar to Carino, the Sixth Circuit held that the Equal Employment Opportunity Commission was not barred from relitigating issues resolved in prior litigation by a private party.(note 157) Based on charges filed by Allen Brown, Jr., against his employer, McLean Trucking, the EEOC commenced a suit in U.S. district court to enforce Title VII of the Civil Rights Act of 1964.(note 158) Subsequently, Brown filed a separate action against McLean, which was later dismissed in connection with a compromise settlement between the parties.(note 159) The EEOC suit was then dismissed by the district court, which concluded that the case was barred by resolution and dismissal of Brown's separate suit against his employer.(note 160) The Sixth Circuit reversed, holding that the EEOC sued to vindicate a public interest that is broader than the interests of the complaining parties.(note 161)

The public interest represented by the government extends beyond the Voting Rights Act and the Civil Rights Act. The Seventh Circuit made this quite clear in Secretary of Labor v. Fitzsimmons.(note 162) After citing many of the same cases discussed herein, the court stated that "the government's special status in enforcing the public interest extends beyond those statutes that implicate underlying constitutional concerns as in the Voting Rights Act and Title VII."(note 163) The court cited antitrust cases as one example, before proceeding to recognize another such interest in enforcement of ERISA.(note 164) In Donovan v. Cunningham,(note 165) the Fifth Circuit held that the rule that separate, private litigation does not preclude government actions seeking judicial enforcement of federal statutes "is based primarily upon the recognition that the United States has an interest in enforcing federal law that is independent of any claims of private citizens."(note 166) Thus, the court recognized a difference in those cases where a plaintiff seeks relief only for himself and those where the government seeks to determine the legality of specific conduct and prevent this conduct from causing any future loss.

The FCC, by instituting a Section 312(b) or Section 403 action, would be pursuing the broad public interest. It would be issuing a declaratory judgment preempting enforcement of the cited ordinance against any individual--not just prior unsuccessful plaintiffs. The Commission need not have an actual complainant because, as an administrative agency, it is not bound by the Constitution's Case or Controversy Clause.(note 167) The FCC would not be collaterally estopped by prior unsuccessful private litigants because it represents the broad public interest. Furthermore, because a suit by the FCC would be a different case with different parties, prior federal court judgments to the contrary would not be merely advisory.(note 168)

The fact that the FCC's determination would also benefit prior unsuccessful private plaintiffs, such as Carino, is irrelevant. In EEOC v. McLean Trucking Co., the EEOC was barred from relitigating a suit on behalf of an individual complainant who had entered into a final settlement with a defendant in a prior suit.(note 169) The EEOC was permitted, however, to litigate against the defendant in the public interest.(note 170) The court recognized that

[w]hile under our holding Brown [plaintiff in the prior suit] is not to recover any "private benefit", such as back pay, not granted to him under the compromise settlement of the separate action, . . . Brown should not and cannot practically be prevented from enjoying the benefits inuring generally to all McLean employees as the result of the eradication of any unlawful practices which may be proved to exist or the benefit of improvements in working conditions.(note 171)

Thus, the fact that an unsuccessful court complainant, like Carino, would benefit from a favorable FCC decision does not prohibit the FCC from taking action in the public interest.

Furthermore, the FCC's refusal to decide a case initially should not bar it from becoming involved at a later time. This can be inferred from United States v. East Baton Rouge Parish School Board, in which the United States was not estopped from initiating a subsequent action after an unsuccessful private action, even after the Attorney General's failure to exercise a statutory right to object to the challenged action.(note 172)

This result also occurred when the government had opportunity and notice to intervene in a case. In Kerr-McGee Chemical Corp. v. Hartigan,(note 173) the state of Illinois, despite its appearance as an amicus curiae in the prior litigation, was not estopped "from litigating an issue on behalf of the people merely because the issue has previously been litigated by private parties in an action to which the state was not a party."(note 174)

One factor in particular distinguishes the Carino cases from the cases in this section. The cases discussed in this section involved judicial suits filed by the United States or an agency after an adverse resolution against, or a settlement by, private plaintiffs. These cases did not involve a proceeding initiated by an agency sua sponte after deliberately passing up the opportunity to decide the issue for itself. Many of the cases, however, are analogous in that the government passed up an opportunity to intervene in the earlier judicial proceeding.

Nevertheless, this distinction should not be significant. No rational basis exists for refusing to apply the enunciated standards regarding the public interest. Furthermore, part of the standard litany in these cases is that the government has limited resources and cannot be expected to monitor private litigation in order to intervene to correct a private plaintiff's mishandling of a claim.(note 175) This concern closely parallels the FCC's concern that it not become a national zoning board.(note 176) Just as the government does not abandon the public's interest by not intervening in every judicial case, the FCC should not be held to have abandoned the public interest by refusing jurisdiction, in the first instance, of a case involving a private plaintiff.

Conclusion

*James Hobson is a partner and Jeffrey Moreno is an associate in the Washington, D.C., law firm of Donelan, Cleary, Wood & Maser, P.C. Mr. Hobson represented the National Association of Broadcasters in In re Preemption of Satellite Antenna Zoning Ordinance of Town of Deerfield, New York, Memorandum Opinion and Order, 7 FCC Rcd. 2172 (1992). The views expressed in this Article are those of Mr. Hobson and his co-author, Mr. Moreno. Return to Text

1. See, e.g., In re Federal Preemption of State and Local Regs. Pertaining to Amateur Radio Facils., Memorandum Opinion and Order, 101 F.C.C.2d 952, para. 25 (1985) (local regulation of amateur, or ham, radio was confined to the "minimum practicable" to accomplish the local authority's legitimate purpose); see also infra notes 18-19 and accompanying text (discussing preemptive actions concerning MATV and SMATV). Return to text

2. Memorandum Opinion and Order, 101 F.C.C.2d 952, para. 1. Return to text

3. Preemption of Local Zoning of Earth Station Antennas, 47 C.F.R. sec. 25.104 (1993). Return to text

4. Direct Testimony and Exhibits of G. Todd Hardy at 11, In re 1991 Satellite Carrier Rate Adjustment Proceeding (Copyright Royalty Trib. Feb. 6, 1992) (CRT Dkt. No. 91-3-SCRA); James R. Hobson, Home Satellite Dishes and Other Antennas: The Local Zoning Threat of "Equal Treatment," Comm. Lawyer, Summer 1992, at 3, 3. Return to text

5. In re Local Zoning or Other Reg. of Receive-Only Satellite Earth Stations, Report and Order, 59 Rad. Reg. 2d (P & F) 1073, paras. 32-34 (1986) [hereinafter Local Zoning Report and Order]. Return to text

6. Id. paras. 36-37. Return to text

7. See, e.g., Cawley v. City of Port Jervis, 753 F. Supp. 128 (S.D.N.Y. 1990); Hunter v. City of Whittier, 257 Cal. Rptr. 559 (Ct. App. 1989); Olsen v. City of Baltimore, 582 A.2d 1225 (Md. 1990); Breeling v. Churchill, 423 N.W.2d 469 (Neb. 1988); Nationwide Satellite Co. v. Zoning Bd. of Adjustment, 578 A.2d 389 (N.J. Super. Ct. App. Div. 1990); Alsar Tech., Inc. v. Zoning Bd. of Adjustment, 563 A.2d 83 (N.J. Super. Ct. Law Div. 1989); L.I.M.A. Partners v. Borough of Northvale, 530 A.2d 839 (N.J. Super. Ct. App. Div. 1987); Minars v. Rose, 507 N.Y.S.2d 241 (App. Div. 1986); Cincinnati v. Billing, 558 N.E.2d 85 (Ohio Ct. App.), appeal dismissed, 534 N.E.2d 843 (Ohio 1988). Return to text

8. Local Zoning Report and Order, supra note 5, para. 39. Return to text

9. See id. para. 40. Return to text

10. Deerfield, 992 F.2d 420 (2d Cir. 1993). Return to text

11. Id. at 429-30. Return to text

12. In re Preemption of Local Zoning Regs. of Receive-Only Satellite Earth Stations, Notice of Proposed Rulemaking, 100 F.C.C.2d 846 (1985) [hereinafter Local Zoning Notice of Proposed Rulemaking], adopted sub nom. In re Local Zoning or Other Reg. of Receive-Only Satellite Earth Stations, Report and Order, supra note 5. Return to text

13. Id. para. 3. Return to text

14. Id. para. 1. Return to text

15. Id. para. 9. For examples of constitutional preemption analyses, see Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984); Michigan Canners & Freezers Ass'n v. Agricultural Marketing and Bargaining Board, 467 U.S. 461 (1984); Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963); and Hines v. Davidowitz, 312 U.S. 52 (1941). Return to text

16. Local Zoning Notice of Proposed Rulemaking, supra note 12, para. 10. Return to text

17. Id. Return to text

18. Id. para. 11 & n.10 (citing In re Orth-O-Vision, Inc. Petition for a Declaratory Ruling, 69 F.C.C.2d 657 (1978), aff'd sub nom. New York State Comm'n on Cable TV v. FCC, 669 F.2d 58 (2d Cir. 1982)). Return to text

19. Id. para. 12 (citing In re Earth Satellite Comm., Inc. Petition for Expedited Special Relief and Declaratory Ruling, Memorandum Opinion, Declaratory Ruling and Order, 95 F.C.C.2d 1223 (1983), aff'd sub nom. New York State Comm'n on Cable TV v. FCC, 749 F.2d 804 (D.C. Cir. 1984)). Return to text

20. Id. para. 10 (footnote omitted). Return to text

21. Id. Return to text

22. Id. para. 21. Return to text

23. Id. para. 10. Return to text

24. 47 U.S.C. sec. 151 (1988). Return to text

25. 47 U.S.C. sec. 705 (1988). Return to text

26. Local Zoning Report and Order, supra note 5, para. 23. Return to text

27. Id. paras. 32, 34, 43. Return to text

28. 47 C.F.R. sec. 25.104 (1993). Return to text

29. Local Zoning Report and Order, supra note 5, para. 39. Return to text

30. Id. Return to text

31. Id. para. 40. Return to text

32. Id. Return to text

33. Town of Deerfield v. FCC, 992 F.2d 420, 424 (2d Cir. 1993). Return to text

34. Id. at 423-24 (quoting Deerfield, N.Y., Zoning Ordinance sec. 17(B) (1986)). Return to text

35. Id. at 424 (citing Letter from Joseph A. Carino to Chief, Satellite Radio Branch, FCC (Feb. 28, 1987)). Return to text

36. Letter from Chief, Satellite Radio Branch, FCC, to Joseph A. Carino (Mar. 20, 1987), quoted in Deerfield, 992 F.2d at 424. Return to text

37. Id. Return to text

38. Id. Return to text

39. Id. (Deerfield's emphasis). Return to text

40. Deerfield, 992 F.2d at 425. Return to text

41. Id. (quoting state supreme court's memorandum denying Carino's petition). Return to text

42. Id. (citing state supreme court's memorandum denying Carino's petition). Return to text

43. Carino v. Pilon, 530 N.Y.S.2d 1022 (App. Div.), appeal dismissed, 531 N.E.2d 655 (N.Y. 1988). Carino did not petition the United States Supreme Court for review. Return to text

44. Carino v. Town of Deerfield, 750 F. Supp. 1156 (N.D.N.Y. 1990), aff'd, 940 F.2d 649 (2d Cir. 1991). Return to text

45. Id. at 1162 (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)); see also U.S. Const. art. IV, sec. 1. Return to text

46. Carino v. Town of Deerfield, 940 F.2d 649 (2d Cir. 1991). Return to text

47. In re Preemption of Satellite Antenna Zoning Ordinance of Town of Deerfield, Memorandum Opinion and Order, 7 FCC Rcd. 2172 (1992) [hereinafter Deerfield Memorandum Opinion and Order]. Return to text

48. Id. para. 8 n.16. Return to text

49. Motion to Accept Late Filed Comments by Town of Deerfield para. 4, In re Petition of Joseph A. Carino for a Declaratory Ruling Preempting the Satellite Dish Antenna Zoning Ordinance of the Town of Deerfield, N.Y. (July 24, 1991) (FCC Dkt. No. DA 91-145). Return to text

50. Deerfield Memorandum Opinion and Order, supra note 47, para. 8. Return to text

51. Id. para. 20. Return to text

52. Id. paras. 21-23. The Commission did not specifically address the collateral estoppel effect of the state court determinations. The question of whether a state court decision can have res judicata or collateral estoppel effect in a subsequent proceeding before an administrative agency is unsettled. This issue is discussed in more detail infra part II.C.1. Return to text

53. Town of Deerfield v. FCC, 992 F.2d 420, 426-27 (2d Cir. 1993). Return to text

54. Id. at 427. Return to text

55. Id. at 428 (focusing on separation of powers doctrine rather than res judicata issues argued by the parties). Return to text

56. Three weeks after the court's opinion, however, the Commission called for public comment on three related matters: (1) the effect of the Second Circuit opinion on the FCC's HSD rules and practice; (2) a Hughes Network Systems petition for complete preemption of local zoning restrictions on satellite dishes of two meters or smaller in commercial and industrial zones; and (3) an earlier petition of the Satellite Broadcasting and Communications Association, where the record stood in need of updating. Comments Sought on Preemption of Local Zoning Reg. of Satellite Antennas, Public Notice, 8 FCC Rcd. 3576 (1993). This tripartite proceeding had not been resolved as of April 1994. Return to text

57. Deerfield, 992 F.2d at 427-28 (citing U.S. Const. art. III, sec. 2). Return to text

58. Gordon v. United States, 117 U.S. 697, 702 (1865), quoted in Deerfield, 992 F.2d at 427-28. Return to text

59. Deerfield, 992 F.2d at 428; see also United States v. Ferreira, 54 U.S. (13 How.) 40, 49-52 (1851). Return to text

60. Deerfield, 992 F.2d at 428. Return to text

61. Id. (quoting 28 U.S.C. sec. 1738 (1988)). Return to text

62. Id. at 429. Return to text

63. Id. (alteration in original). Return to text

64. Id. Return to text

65. Id. at 430. Return to text

66. Id. Return to text

67. Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792). Return to text

68. Id. at 410. Return to text

69. Invalid Pensions Act, Act of Mar. 23, 1792, ch. 11, 1 Stat. 243. Return to text

70. Hayburn's Case, 2 U.S. (2 Dall.) at 413. Return to text

71. Id. Return to text

72. Id. at 410. Return to text

73. Ferreira, 54 U.S. (13 How.) 40 (1851). Return to text

74. When Congress first set up this forum, the court that was later to decide Ferreira was a territorial court. Soon thereafter, Florida was admitted to the Union and the jurisdiction of the territorial court was continued in the new United States district court. At the time of Ferreira, the court was a United States district court. This difference in courts, however, would not have altered the holding of the Supreme Court. Id. at 48-49. Return to text

75. Id. at 42. Return to text

76. Id. at 51. Return to text

77. Id. at 46. Return to text

78. Id. at 51. The Court drew a distinction between imposing certain duties upon the courts, as opposed to judges. Id. at 50-51. A duty otherwise impermissible if imposed on the courts would be permissible if imposed upon a judge. This position was consistent with the views expressed by a majority of Justices in Hayburn's Case. See also Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927) (holding Supreme Court lacked jurisdiction to hear appeal from D.C. Circuit because the decision of the D.C. Circuit was not a judicial action but a mere administrative decision). Return to text

79. See Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103 (1948); Muskrat v. United States, 219 U.S. 346 (1911); Gordon v. United States, 117 U.S. 697 (1865). Return to text

80. Town of Deerfield v. FCC, 992 F.2d 420, 427 (2d Cir. 1993). Return to text

81. See 18 Charles A. Wright et al., Federal Practice and Procedure sec. 4416 (1981 & Supp. 1993); Restatement (Second) of Judgments sec. 27 (1982). Return to text

82. Deerfield, 992 F.2d at 429. Return to text

83. 18 Wright et al., supra note 81, sec. 4426. Return to text

84. Deerfield, 992 F.2d at 426-27. Return to text

85. Id. at 429-30. Return to text

86. See Restatement (Second) of Judgments sec. 28(5)(a) (1982). Return to text

87. See generally Federated Dep't Stores v. Moitie, 452 U.S. 394, 398 (1981); Restatement (Second) of Judgments sec. 48 (1982). Return to text

88. See supra part I.A. Return to text

89. Deerfield, 992 F.2d at 429. Return to text

90. Id. at 429-30. Return to text

91. U.S. Const. art. IV, sec. 1. Return to text

92. See, e.g., University of Tenn. v. Elliot, 478 U.S. 788, 799 (1986); Kremer v. Chemical Constr. Corp., 456 U.S. 461, 483-84 n.24 (1982); Ultracashmere House, Ltd. v. Meyer, 664 F.2d 1176, 1183 (11th Cir. 1983). But see American Sur. Co. v. Baldwin, 287 U.S. 156, 166 (1932). See generally 18 Wright et al., supra note 81, sec. 4469. Return to text

93. Act of May 26, 1790, ch. 11, 1 Stat. 122 (codified as amended at 28 U.S.C. sec. 1738 (1988)). Return to text

94. Elliot, 478 U.S. at 794-95. Return to text

95. Town of Deerfield v. FCC, 992 F.2d 420, 426-27 (2d Cir. 1993). Return to text

96. Id. at 427-28. Return to text

97. Id. at 427. Return to text

98. Id. at 423. Return to text

99. See id. Return to text

100. See 5 Jacob A. Stein et al., Administrative Law sec. 47.01 (1993). Return to text

101. 5 id. Return to text

102. See 5 id. sec. 47.03. The court of appeals has exclusive jurisdiction to enjoin, set aside, suspend, or determine the validity of all final orders of the FCC made reviewable by 47 U.S.C. sec. 402(a) (1988). 28 U.S.C. sec. 2342 (1988). Return to text

103. 5 Stein et al., supra note 100, sec. 47.03. Return to text

104. Atchison, T. & S.F. Ry. v. Aircoach Transp. Ass'n, 253 F.2d 877, 886 (D.C. Cir. 1958); see also Chicago Mercantile Exch. v. Deaktor, 414 U.S. 113, 115 (1973); Ricci v. Chicago Mercantile Exch., 409 U.S. 289, 304-05 n.14, 306 (1973). While the Supreme Court held that certain issues should have been referred to the agency under its primary jurisdiction, on referral, the agency declined to decide the Ricci case. See Doctrine of Primary Jurisdiction, Statement Concerning Referrals of Private Litig., Notice, 41 Fed. Reg. 18,471 (Commodity Futures Trading Comm'n, 1976). Return to text

105. See 2 Kenneth C. Davis & Richard J. Pierce, Jr., Administrative Law Treatise secs. 15.1-.2 (3d ed. 1994). Return to text

106. 2 id. sec. 15.2; see also McKart v. United States, 395 U.S. 185, 193-95 (1969). Return to text

107. Nehring v. First DeKalb Bancshares, Inc., 692 F.2d 1138, 1142 (7th Cir. 1982). Return to text

108. 5 Stein et al., supra note 100, sec. 49.01. Return to text

109. McKart, 395 U.S. at 194. Return to text

110. Cf. Public Citizen Health Research Group v. FDA, 740 F.2d 21, 29 (D.C. Cir.), overruled on other grounds, Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70, 75 (D.C. Cir. 1984), quoted in 5 Stein et al., supra note 100, sec. 49.01 n.8 (The exhaustion doctrine "ensures that persons do not flout established administrative processes and thereby advances Congress' intent in establishing the processes; it protects the autonomy of agency decisionmaking; . . . and it serves judicial economy by avoiding the necessity . . . of any judicial involvement if the parties successfully vindicate their claims before the agency."). Return to text

111. 5 Stein et al., supra note 100, sec. 49.01. Return to text

112. 5 id. Return to text

113. 5 id. Return to text

114. 5 id. Return to text

115. Leedom v. Kyne, 358 U.S. 184, 188-89 (1958). Return to text

116. 47 U.S.C. sec. 312(b) (1988). Return to text

117. 47 U.S.C. sec. 403 (1988). Return to text

118. 47 U.S.C. sec. 312(b) (1988). Return to text

119. H.R. Rep. No. 1750, 82d Cong., 2d Sess. sec. 10 (1952), reprinted in 1952 U.S.C.C.A.N. 2234, 2246-47. Return to text

120. General Tel., 413 F.2d 390 (D.C. Cir.), cert. denied, 396 U.S. 888 (1969). Return to text

121. Id. at 403-04. Return to text

122. Id. at 392-93. Return to text

123. Id. at 404. Return to text

124. Id. (alterations in original) (court's emphasis) (quoting 47 U.S.C. sec. 312(b) (1988)). Return to text

125. 47 U.S.C. sec. 402(b)(7) (1988). Return to text

126. 47 U.S.C. sec. 403 (1988). Return to text

127. Id. Return to text

128. See National Ass'n of Motor Bus Owners v. FCC, 460 F.2d 561, 565 (2d Cir. 1972); Building Material Teamsters Local 282 v. NLRB, 275 F.2d 909, 913 n.2 (2d Cir. 1960). Return to text

129. Interstate Commerce Act of 1887, ch. 104, sec. 13, 24 Stat. 379, 383-84, repealed by Act of Oct. 17, 1978, Pub. L. No. 95-473, sec. 4(b), 92 Stat. 1337, 1466-70; see In re Alleged Excessive Freight Rates on Food Products, 4 I.C.C. 116 (In the absence of complaint by others the Commission must, if it is to enforce the law, proceed on its own motion.). Return to text

130. 47 U.S.C. sec. 403 (1988). Return to text

131. See Carino v. Town of Deerfield, 750 F. Supp. 1156 (N.D.N.Y. 1990), aff'd, 940 F.2d 649 (2d Cir. 1991); Carino v. Pilon, 530 N.Y.S.2d 1022 (App. Div.), appeal dismissed, 531 N.E.2d 655 (N.Y. 1988); Deerfield Memorandum Opinion and Order, supra note 47. However, a relevant federal or state court ruling against an HSD owner would still be in force and unaffected. Return to text

132. Montana v. United States, 440 U.S. 147, 153 (1979). Return to text

133. Wilder v. Thomas, 854 F.2d 605, 617 (2d Cir. 1988), cert. denied, 489 U.S. 1053 (1989). Return to text

134. See Blonder-Tongue Lab. v. University of Ill. Found., 402 U.S. 313 (1971). Return to text

135. See United States v. Mendoza, 464 U.S. 154, 158-60 (1984). But see Montana, 440 U.S. at 155 (finding privity where the United States essentially controlled the prior litigation even though it was not a party). Return to text

136. Mendoza, 464 U.S. at 159 (quoting INS v. Hibi, 414 U.S. 5, 8 (1973) (per curiam) (citation omitted)). Return to text

137. See United States v. East Baton Rouge Parish Sch. Bd., 594 F.2d 56, 58-59 & n.6 (5th Cir. 1979); see also City of Richmond v. United States, 422 U.S. 358 (1975); Durfee v. Duke, 375 U.S. 106 (1963); Restatement (Second) of Judgments sec. 41 cmt. d (1982). Return to text

138. 47 U.S.C. sec. 1973c (1988). Return to text

139. City of Richmond, 422 U.S. 358, 362 (1975). Return to text

140. Id. at 361-62 (quoting Voting Rights Act of 1965, 42 U.S.C. sec. 1973c (1965)). Return to text

141. Holt v. City of Richmond, 334 F. Supp. 228 (E.D. Va. 1971), rev'd, 459 F.2d 1093 (4th Cir.), cert. denied, 408 U.S. 931 (1972). Return to text

142. Id. at 237. Return to text

143. Holt v. City of Richmond, 459 F.2d 1093, 1099-100 (4th Cir.), cert. denied, 408 U.S. 931 (1972). Return to text

144. City of Richmond v. United States, 376 F. Supp. 1344 (D.D.C. 1974), vacated, 422 U.S. 358 (1975). Return to text

145. City of Richmond v. United States, 422 U.S. 358 (1975). Return to text

146. City of Richmond, 376 F. Supp. at 1352 n.43. Return to text

147. Id. Return to text

148. City of Richmond, 422 U.S. at 373 n.6; see also City of Port Arthur v. United States, 517 F. Supp. 987, 1004 n.119 (D.D.C. 1981) (holding that the non-participation of United States in prior case was fatal to operation of estoppel), aff'd, 459 U.S. 159 (1982). Return to text

149. East Baton Rouge Parish Sch. Bd., 594 F.2d 56 (5th Cir. 1979). Return to text

150. Bryant v. East Baton Rouge Parish Sch. Bd., 471 F.2d 651 (5th Cir. 1973). Return to text

151. See East Baton Rouge Parish Sch. Bd., 594 F.2d at 59-60. Return to text

152. Id. at 58 (citations omitted). Return to text

153. Texas, 430 F. Supp. 920 (S.D. Tex. 1977). Return to text

154. Id. at 923. Return to text

155. Id. at 926. Return to text

156. Id. at 925. Return to text

157. EEOC v. McLean Trucking Co., 525 F.2d 1007 (6th Cir. 1975). Return to text

158. Id. at 1008; see also 42 U.S.C. sec. 2000e (1988). Return to text

159. McLean Trucking, 525 F.2d at 1008. Return to text

160. Id. at 1009. Return to text

161. Id. at 1010; See EEOC v. Kimberly- Clark Corp., 511 F.2d 1352 (6th Cir. 1977), (principles of collateral estoppel or res judicata did not render charges alleging presettlement events unavailable as basis for EEOC suit), cert. denied, 423 U.S. 994 (1975). But see EEOC v. Continental Oil Co., 548 F.2d 884 (10th Cir. 1977) (rejecting EEOC's right to sue despite previous private action); Johnson v. Nekoosa-Edwards Paper Co., 558 F.2d 841 (8th Cir. 1977) (holding that court must consider EEOC's obligation to attempt conciliation). Return to text

162. Fitzsimmons, 805 F.2d 682 (7th Cir. 1986). Return to text

163. Id. at 692. Return to text

164. Id. (citing Sam Fox Publishing Co. v. United States, 366 U.S. 683 (1961)). Return to text

165. Donovan, 716 F.2d 1455 (5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984). Return to text

166. Id. at 1462; see also Beck v. Levering, 947 F.2d 639 (2d Cir. 1991) (holding judgment in prior case does not establish claim preclusion for related action by Secretary of Labor seeking public relief), cert. denied sub nom. Levy v. Martin, 112 S. Ct. 1937 (1992); FTC v. AMREP Corp., 705 F. Supp. 119 (S.D.N.Y. 1988) (holding res judicata applied to prior plaintiffs who settled, but FTC could still maintain suit on behalf of plaintiffs who opted out of class and in the general public interest); Loving v. Alexander, 548 F. Supp. 1079 (W.D. Va. 1982) (holding federal government not bound by determination, made in state court litigation by private parties, that a river is not navigable), aff'd, 745 F.2d 861 (4th Cir. 1984). Return to text

167. 4 Stein et al., supra note 100, sec. 33.04 n.3 (citing Tennessee Gas Pipeline Co. v. Federal Power Comm'n, 606 F.2d 1373, 1380 (D.C. Cir. 1979) ("The subject matter of agencies' jurisdiction naturally is not confined to cases and controversies inasmuch as agencies are creatures of article I. . . . Thus, the Commission correctly observes that an agency may, if authorized by statute, issue an advisory opinion or abstract declaration without regard to the existence of an actual controversy.")). Return to text

168. Prior contrary federal court judgments would be no more advisory than are conflicting decisions of other courts-- federal or state. Return to text

169. McLean Trucking, 525 F.2d 1007, 1010 (6th Cir. 1975). Return to text

170. Id. Return to text

171. Id. at 1011 (citation omitted). Return to text

172. East Baton Rouge Parish Sch. Bd., 594 F.2d 56, 58 (5th Cir. 1979). Return to text

173. Kerr-McGee, 816 F.2d 1177 (7th Cir. 1987). Return to text

174. Id. at 1181. Return to text

175. See East Baton Rouge Parish Sch. Bd., 594 F.2d at 58. Return to text

176. See supra notes 7-9 and accompanying text. Return to text