Xavier University and Notre Dame Seminary v. National Telecommunications and Information Administration

Citations: 658 F.2d 306; 7 Media L. Rep. (BNA) 2169; 50 Rad. Reg. 2d (P & F) 461; 1981 U.S. App. LEXIS 17117Docket: 80-3912

Court: Court of Appeals for the Fifth Circuit; October 5, 1981; Federal Appellate Court

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Xavier University and Notre Dame Seminary petitioned the United States Court of Appeals for the Fifth Circuit to review an order from the National Telecommunications and Information Administration (NTIA) regarding a grant awarded to the Nora Blatch Educational Foundation for constructing a public radio station in New Orleans. The petitioners claimed the Foundation failed to meet notice and publication requirements and misrepresented a board member's affiliation in its grant application. The NTIA's director declined to revoke the grant, prompting the petitioners to seek judicial review. However, the court determined it lacked jurisdiction to review decisions made by the Secretary of Commerce or the NTIA concerning grant disbursements under the Communications Act of 1934, as there was no statutory authority granting such jurisdiction. The petitioners incorrectly asserted that the Communications Act allowed for judicial review of NTIA decisions, misunderstanding the Act's provisions, which center on the Federal Communications Commission (FCC) and its enforcement responsibilities. The court ultimately dismissed the petition due to lack of jurisdiction.

Enforcement and review of Commission orders initially occurred in a three-judge U.S. district court but were amended in the Communications Act of 1934 to allow for review in the U.S. courts of appeals. Under 47 U.S.C. 402(a), any action to challenge a Commission order must comply with section 2342 of the Judicial Code, which grants appellate courts exclusive jurisdiction over final FCC orders. In 1962, Congress authorized federal financial assistance for educational broadcast facilities, delegating responsibility for grants to the Secretary of Health, Education, and Welfare (HEW), with the FCC providing limited assistance. The Secretary of HEW was tasked with promulgating regulations, receiving applications, and approving them. This amendment aimed to integrate the financial assistance program within the broader broadcasting framework. The 1978 amendments transferred the grant program's administration to the Department of Commerce, specifically through the National Telecommunications and Information Administration (NTIA), while removing the FCC's advisory role in grant awards. As a result, the courts lack jurisdiction to directly review decisions made by the Secretary of Commerce regarding grants, as Congress intended appellate review to apply only to FCC decisions and orders.

The 1962 Amendments assigned the Secretary full responsibility for managing the grant program, with no indication from the amendments or their legislative history that Congress intended the Secretary's actions in awarding federal assistance to be treated as FCC decisions. The Telecommunications Financing Act of 1978 also does not assist petitioners in asserting jurisdiction, as it merely shifted administrative duties between departments. Consequently, neither the Communications Act of 1934 nor its amendments grant the court jurisdiction to review the Secretary of Commerce or NTIA's decisions regarding grants for public telecommunications facilities. 

Petitioners incorrectly cite *Network Project v. Corporation for Public Broadcasting* as a basis for jurisdiction; this case only confirmed the district court's authority to hear claims against the Corporation for Public Broadcasting, not the appeals court's jurisdiction over the Secretary's actions. Furthermore, the Administrative Procedure Act does not imply subject-matter jurisdiction for reviewing agency actions, as established in *Califano v. Sanders*. The petitions of Xavier University and Notre Dame Seminary to review an NTIA order are therefore dismissed. Judicial review of certain FCC decisions is limited to the U.S. Court of Appeals for the District of Columbia Circuit, as per the Communications Act of 1934. The NTIA was created through a 1977 reorganization plan, consolidating telecommunications policy functions for the Department of Commerce while administering the public broadcast facilities grant program under the amended Communications Act.