Opinion for the Court filed by Circuit Judge WILKEY.
WILKEY, Circuit Judge:
Petitioner Gardner comes before us to appeal the FCC's denial of his petition for reconsideration of a decision dealing with the Commission's personal attack rule.
Petitioner complained to the FCC on 23 April 1973 that certain statements broadcast by radio station WACT in Tuscaloosa, Alabama, on 22 February 1973, had constituted a personal attack triggering the remedial measures of 47 C.F.R. § 73.123.
The licensee responded to the Notice of Apparent Liability on 11 March 1974, with further factual allegations buttressing its view that the personal attack rule was not applicable. After two more responses by Petitioner and a final offering by the licensee, the Commission, on 29 October 1974, reversed its previous position and concluded that no violation of the rule had occurred
The issues before us arise from the events which subsequently took place. Although FCC regulations command that opinions and orders are to be sent to the parties to the actions in which they issue,
The gist of Petitioner's claim on appeal is that the denial of personal notice made it extremely difficult for him to file his petition within the thirty day statutory period, and that it was therefore improper for the Commission to deny his petition on the ground of untimeliness. Two legal issues are thus presented. First, Petitioner must show that he had a legal right to receive notice of the decision. Second, he must establish that entertainment of the petition is justified, in this case, in light of the failure to give such notice.
I. RIGHT TO NOTICE
The FCC argues that there is no legal requirement that it give personal notice to parties as to the decisions that it reaches. In particular, it cites the language of 47 U.S.C. § 405, which sets forth the limitation period on petitions for rehearing as "thirty days from the date upon which public notice is given", and which contains no requirement of personal notice.
Contrary to the Commission, we hold that Petitioner was entitled to the notice denied here, on at least two separate and independent legal grounds. First, such notice is explicitly required by section 6(d) of the Administrative Procedure Act.
The Administrative Procedure Act requires that prompt notice be given of any denial of a written request in connection with any agency proceeding.
There is no basis here for finding a special exception to the section's applicability. It is true, as respondent alleges, that 47 U.S.C. § 405 does not contain any reference to personal notice. However, neither does it purport on its face to be the exclusive source of Commission notice obligations, and it does not follow that the obligation does not exist, simply because it is not contained in that section. Nor may the Commission assert that compliance with section 6(d) would impose undue burdens upon it, since its usual practice is to provide such notice as a matter of course. Thus the notice requirement is applicable and was violated by the Commission in this case.
Quite apart from the Administrative Procedure Act, we hold that the failure to give notice is also objectionable as a violation of established procedures, publicly announced by the Commission itself.
II. PETITIONER'S RIGHTS IN LIGHT OF FCC FAILURE TO GIVE NOTICE
Although the Commission clearly breached its duty to give notice, there remains two hurdles in Petitioner's path if he is to establish his right to some judicial relief. First, he must demonstrate that he has standing to pursue the matter, even after the radio station has offered him an opportunity to reply. Second, if he has standing, he must further show that entertainment of the petition is proper, in spite of the apparent contradiction of the thirty day filing provision of section 405.
There appears to be no question that the licensee has offered Gardner an opportunity to respond to the attacks made upon him.
The adjudication in the Commission, upon which this appeal is based, was not an Article III proceeding to which either the "case or controversy" or prudential standing requirements apply. Within their legislative mandates, agencies are free to hear actions brought by parties who might be without party standing if the same issues happened to be before a federal court. The agencies' responsibility for implementation of statutory purposes justifies a wider discretion, in determining what actions to entertain, than is allowed to the courts by either the constitution or the common law.
We also hold that Petitioner has standing before this court to challenge the Commission on the grounds he has alleged. Once having determined to entertain
It remains to be determined what relief may properly be accorded this petitioner in light of our conclusion that the Commission failed to give the notice required by law. The only meaningful relief would be a remand to the Commission for reconsideration of its denial of the motion for rehearing, with the instruction that the lateness of the filing is not a proper ground for denial. To determine if that is proper we must scrutinize more closely the statute and the case law.
At the outset we can reject the theory advanced by Petitioner that the Commission's denial was improper because the filing period runs from the date of personal notice, and no such notice was given here. The statute is entirely clear that the thirty-day filing period runs ". . . from the date upon which public notice is given . . ." It is established that public notice, under section 405, occurs when the full text of a decision becomes publicly available.
Where personal notice is not given within a reasonable time, or, as here, not given at all, the apparent commandment of section 405 that a rehearing petition "must" be filed within thirty days has somehow to be reconciled with the general concern for procedural fairness. In the face of defective personal notice, fairness considerations may indicate that the thirty day filing requirement should be waived or extended.
It appears that the seemingly mandatory language of section 405 does not prevent the entertainment of rehearing petitions beyond the statutory period where extraordinary circumstances indicate that justice would thus be served. The Commission retains jurisdiction over matters before it until the time for judicial appeal has expired.
It appears to us that the late filing in this case was due, in substantial measure, to the FCC's omission to give Petitioner personal notice of any kind.
We therefore hold that the Commission abused its discretion in rejecting Gardner's petition for rehearing on the ground of untimeliness. The matter is remanded to the Commission to rule again on the motion for rehearing, with the instruction that, in view of its failure to notify personally the party of its initial ruling, the Commission may not deny the rehearing petition because it was received four days after the statutory period expired.
In addition to notice of the fact of denial, a statement of grounds must be given which is "sufficient to advise the party of the general basis of the denial." Attorney General's Manual on the Administrative Procedure Act 70 (1947). There is no issue presented here as to the form of notice required under § 6(d), since no notice at all was given.
The station is also subject to a fine of up to $1000 per day, under 47 U.S.C. § 503(b)(1)(B) (1970). None of the money paid by a violator would go to the complaining party, and thus the possibility of a fine is not a matter of immediate economic interest to the Petitioner.