The opinion
PRETTYMAN, Circuit Judge
(concurring in the result).
I concur in the result in this case, but I rest my concurrence upon the second point discussed by the court, that the company violated a regulation properly applied to it. The crucial phrase in the regulation adopted in 1938, eight years before this company came into existence, referred to' a holding out to the public “by advertisement or otherwise”. On May 17, 1946, the Board in two opinions 1 interpreted the expression “by advertisement or otherwise” to include a regular course of conduct. Effective June 15, 1946, the Board amended the regulation (Regs. 367) itself, so that the phrase thereafter read “expressly or by a course of conduct”. This petitioner was incorporated in June, 1946. It says that it acquired its aircraft the previous month, in May, 1946. It applied for its letter of registration in 1947, and the letter was issued to it on July 8, 1947. I think (1) that the phrase “by advertisement or otherwise” includes “a course of conduct” and (2) that this petitioner was at all times well aware of that meaning of the regulation, being charged with notice of the Board’s decisions of May, 1946, which was prior to its incorporation, and of the amendment of the regulation which became effective in June, 1946, which was practically coincident with its incorporation. The evidence was ample to support the conclusion of the Board that petitioner, after it began operations, held itself out to the public by its course of conduct as conducting a service with a reasonable degree of regularity. On these bases I concur in affirmance of the disputed orders of the Board.
I think we should not attempt to decide in this case the res judicata point, since it is not necessary that we do so. That point presents a puzzling problem. The cease and desist order was not enforceable ex *427 cept by court order. 2 It was revicwable. 3 And the statute says that orders of the Board must be obeyed “so long as the same shall remain in effect.” 4 No enforcement proceeding was brought by the Board, arid no review proceeding was brought by the company. The Board then revoked the company’s license, partly upon the ground that it (the company) failed to comply with the cease and desist order. The question is whether the validity of the cease and desist order is open to challenge in the revocation proceeding. Whether failure to obey a cease and desist order (possibly a violation of the statute 5 ) could be a valid ground for revocation is a different question, it seems to me. The company might be held to assume the risks of violating what might be held to be a valid order without being held foreclosed from challenging that order.
When the pertinent parts of the several sections of the statute arc juxtaposed, the problem becomes clear. “It shall be the duty of every person subject to this chapter * * * to observe and comply with any order * * * issued by the Board * * so long as the same shall remain in effect.” 6 “Any order * * * issued by the Board * * * shall be subject to review by the courts of appeals of the United States * * * upon petition, filed within sixty days after the entry of such order, by any person disclosing a substantial interest in such order.” 7 - “If any person violates any provision of this chapter, or any * * * order thereunder, * * * the Board * * * may apply to the district court of the United States * * * for the enforcement of said * * * order * * *; and such court shall have jurisdiction to enforce obedience thereto * * 8
If a cease and desist order, not reviewed by a court of appeals, is res judicata of all matters involved in it, and if the Board can base revocation of a license upon disobedience of that order, the Board has a potent weapon for enforcement; potent enough, one would think, to remove court enforcement proceedings from the realm of usefulness. But Congress must have meant court enforcement proceedings to be used. On the other hand, it would seem odd that a company could ignore an order of the Board in the face of a statutory direction to obey and in the presence of a right to court review if the order was thought invalid. Having thus briefly depicted the problem, I would not attempt to answer it in this case, because here the ultimate result must be the same in any event.
The Federal Trade Commission cases upon which the court relies do not seem to me to be helpful here. In part they deal with different statutory situations, and in part they deal with the conclusiveness of findings of fact by the Commission.
. Investigation of Nonscheduled Air Services, 6 C.A.B. 1049, 1055; Page Airways, Inc., Investigation, 6 C.A.B. 1061, 1067.
. 52 Stat. 1025 (1938), as amended, 49 U. S.C.A. § 647.
. 52 Stat. 1024 (1938), as amended. 49 U. S.C.A. § 646.
. 52 Stat. 1023 (1938), as amended, 49 U. S.C.A. § 645(e).
. Ibid.
. Ibid.
. 52 Stat. 1024 (1938), as amended, 49 U. S.C.A. § 616(a).
. 52 Stat. 1025 (1938), as amended, 49 U. S.C.A. § 617(a).