Porter & Dietsch, Inc

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF PORTER & DIETSCH, INC, ET AL.

Docket 901;7. Interlocutory Order. July 1977 Denial of respondent's objection to participation of Chairman Pertschuk and Commissioner Dole, and consolidated motion for expedited decision and hearing.

ORDER DENYING "RESPONDENT S OBJECTION TO PARTICIPATION 01' CHAIRMAN PERTSCIIUK AND COMMISSIONER DOLE, AND CONSOLIDATED MOTION FOR EXPEDITED DECISION AND HEARING On July 22, 1977, respondents fied a motion for dismissal or, in the alternative, a hearing "in order to demonstrate to the Commission prejudicial delay in rendering a decision in this case suffcient to warrant dismissal. . ." The stated grounds are that: (1) Chairman Pertschuk' s participation is unauthorized by Section 3. 52(1) of the Commission s Rules, 16 CF.R. 3.52(1), because he was not a member of the Commission at the time of the oral argument on appeal from the initial decision; (2) Commissioner Dole took a brief leave absence of eight weeks during which she, also, was absent from the same oral argument; (3) apart from the "impropriety" of Chairman Pertschuk or Commissioner Dole participating, both would have to review and consider the record in this matter, causing the respondents prejudicial delay; and (4) the ten-month delay to date in deciding this matter has forced Kelly Ketting Furth to discontinue its business and has cost Porter & Dietsch lost sales. As we said in Retail Credit Co. Dkt. 8920 Order Denying Motion for Reargument," October 26, 1976, a Commissioner who has not heard oral argument can participate in the decision of a case. The decision of numerous courts and administrative agencies establish that, even without agreement of the parties, a member of an administrative agency who did not hear oral argument may nevertheless participate in the decision where he has the benefit of the record before him. Gearhart Otis. Inc. v. SEe. 348 p' 798 802 (D.C. Cil 1965) (footnotes omitted). Respondents' only authority for the contrary proposition is, in the words of the Gearhart opinion, the "only case which looks in the opposite direction, WIBC, Inc. v. FCC, 259 F. 2d 941 (D.C Cir. cert. denied, sub nom. Crosley Broadcasting Corp. v. FCC, 358 U.s. 920 (1958), which is "easily distinguishable " in part because oral argument was required by then-existing provisions of the Communications Act, 47 U. C 409(b) (1952). 348 F. 2d at 802. 130 Urder Contrary to respondents' impression, Section 3.52(1) ofthe Commission s Rules does not apply solely to Commissioners who were members of the Commission at the time oral argument was heard on an appeal from an initial decision. Indeed, Section 3.52(1) contemplates that Commissioners not present at oral argument wil participate in the consideration and disposition of an appeal in which oral argument has been stenographically recorded. Oral argument is not required by the Federal Trade Commission Act and the Commission possesses the authority, under Section 3.52(1), to dispense with oral argument on its own motion. Since respondents are "not entitled to present oral argument as a matter of right, " neither are they prejudiced by the participation of Commissioners who have not heard oral argument. Retail Credit, id.

As for the delay often months in deciding this appeal, respondents themselves contend, in objecting to the participation of Chairman Pertschuk and Commissioner Dole, that this matter involves a voluminous record" which would take an unreasonable amount of time for those ostensibly unacquainted with it to master. Respondents do not contend that this matter has taken longer than usual to dispose of similar proceedings or that the Commission has a "dilatory attitude " in regard to this matter. FTCv. J. Weingarten, Inc. 336 F. 687 (5th Cir. 1964). Respondents themselves requested a four-month delay in this matter in which to prepare an appeal brief in a motion which was denied on July 22, 1976.

Respondents also renew their objection to the press release announcing issuance of the administrative complaint. That objection has been disposed of and we see no need to disturb our prior orders concerning that issue, 86 F. C. 896, 1570 (1975). Accordingly, It is ordered, That respondents Objection to Participation of Chairman Pertschuk and Commissioner Dole, and Consolidated Motion for Expedited Decision and Hearing" be, and it hereby is denied.

Complaint 90 F.T.C.