Kalodner, Murrah*fn* and Van Dusen, Circuit Judges.
Did the District Court err in dismissing, for lack of subject matter jurisdiction, the appellants' Complaint which alleged that the Federal Communications Commission ("FCC") had violated appellants' constitutional guarantees of freedom of speech and due process in the Commission's application of its Rule 74.1105 to appellants' proposal to operate a community antenna television system in Trenton, New Jersey?
That question is presented by the instant appeals.
The background facts may be summarized as follows:
On April 18, 1968, TelePrompTer Corporation, appellant at No. 18,412, was granted a franchise by the City Council of Trenton, New Jersey to operate a Community antenna television ("CATV") system*fn1 in that city. TelePrompTer subsequently assigned its franchise to its wholly-owned subsidiary, TelePrompTer New Jersey Cable Network, Inc., the appellant at No. 18,413. The appellants are hereinafter referred to as "Teleprompter."
On July 1, 1968, Teleprompter gave notice to interested parties of its proposed operation of a CATV system in Trenton pursuant to Rule 74.1105 of the FCC Rules.*fn2 FCC has authority to regulate CATV systems and to issue rules and regulations and prescribe restrictions and conditions as public convenience, interest or necessity requires, provided they are not inconsistent with law.*fn3
On August 1, 1968, a Philadelphia television station petitioned the FCC to enjoin Teleprompter from carrying New York signals. This petition brought into play FCC Rule 74.1105(c)*fn4 which provides for an "automatic" stay of any proposed CATV system operation pending its disposition by the FCC.
On August 19, 1968, thirteen copyright owners petitioned the FCC for special relief in connection with Teleprompter's proposed Trenton operation and on August 23, 1968, a second Philadelphia TV station petitioned the FCC to temporarily prohibit carriage of New York signals by the proposed Trenton operation.
On September 23, 1968, Teleprompter filed its "Opposition" to all of the foregoing petitions asserting that they lacked merit and were unwarranted and should be denied forthwith, or alternatively, that they be expeditiously resolved as provided in Rule 74.1109(f).*fn5
On October 14, 1968, the two Philadelphia TV stations filed a joint reply to Teleprompter's "Opposition."
On November 29, 1968, the City of Trenton filed a "Position Statement and Petition for Relief" which requested that "the Federal Communications Commission act expeditiously and favorably upon TelePrompTer's CATV proposal for Trenton, New Jersey, by denying the petitions for special relief filed herein."
On December 12, 1968, the two Philadelphia TV stations and thirteen copyright owners responded to the ...