City Cabs, Inc. v. Federal Communications Commission, Best Cabs, Inc., Intervenor ( 1960 )

275 F.2d 165

107 U.S.App.D.C. 136

CITY CABS, INC., Appellant,
v.
FEDERAL COMMUNICATIONS COMMISSION, Appellee, Best Cabs,
Inc., Intervenor.

No. 15094.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 7, 1960.
Decided Jan. 21, 1960.

Mr. Jeremiah Courtney, Washington, D.C., with whom Mr. Arthur Blooston, Washington, D.C., was on the brief, for appellant.

Mr. James T. Brennan, Jr., Counsel, Federal Communications Commission, for appellee. Messrs. Edgar W. Holtz, Acting Gen. Counsel, Federal Communications Commission, Max D. Paglin, Asst. Gen. ,Counsel, Federal Communications Commission, and John H. Conlin, Counsel, Federal Communications Commission, were on the brief for appellee.

Mr. Abe L. Stein, Washington, D.C., entered an appearance for intervenor, Best Cabs, Inc.

Before EDGERTON, FAHY and BASTIAN, Circuit Judges.

BASTIAN, Circuit Judge.

1

City Cabs, Inc., has appealed from a decision and order of the Federal Communications Commission adopted March 25, 1959, released March 27, 1959, affirming a grant, dated May 31, 1957, of the application of Best Cabs, Inc., intervenor herein, for a construction permit and license in the Taxicab Radio Service, granting the petition of Best Cabs for leave to amend its application originally filed December 26, 1957, and denying the protest of City Cabs, Inc., against the grant of the application of Best Cabs.

2

The decision affirming the May 31, 1957 grant was contingent on the filing of an affidavit by Best Cabs supplying data missing from its original application, such as frequency, emission, power and other information specified in paragraph 5 of the Commission's decision, and affirmatively reciting facts sufficient to warrant a finding and conclusion of eligibility under Section 16.401(a)(1) of the Commission's Rules.1

3

Appellant first urges that the Commission erred in permitting the intervenor's application to be validated by a nunc pro tunc amendment. We think that under the decision of this court in Johnston Broadcasting Co. v. Federal Communications Comm'n, 1949, 85 U.S. App.D.C. 40, 175 F.2d 351, the action of the Commission in this regard was within its power and was proper.

4

Appellant further urges that the Commission erred in determining that certain misrepresentations in intervenor's application, inserted by an unauthorized person, did not constitute a willful and deliberate misrepresentation by the intervenor and that the intervenor was not guilty of a willful and knowing concealment of material facts.

5

We think that the finding of the Commission that Best Cabs did not commit acts of deliberate and willful misrepresentation and did not deliberately conceal the facts of such misrepresentation is supported by the record as a whole.

6

Finding no reason to disturb the decision of the Commission, that decision is

7

Affirmed.

1

This affidavit was filed and deemed by the Commission a satisfactory compliance with the directions of the Commission