Brief for the Intervener — Nat. Broadcasting Co. v. United States

Supreme Court brief1942

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“WoopMEs OF THE

STROMBERG-

| ’ ) 0

RPE ty 51) rae

‘Supreme Court ‘of the United States,

Ocronen Te RM, 1941.

ssa. 005 1006,

ete aN RE ee a

Worup Lire Ixscraxce Society,

Canpson -TELEPTIONE MANUFACTURING COMPANY,

A py llants. 2.

eRe

Ture Usirep STATES OF A Mgnt

Tk FrRpersl (' OMMUNACATIONS COMMISSION.

Actran Broapesstexa System. Txe..

“A. 4 2

AND

: Ap wlees.

Corr MBIA Broape ASTING System. ENc.,

Appellavbs,

: fe

Tire Usirep St VF s of AMERICA,

Tita evens. CoMMUNICATIONS (COMMISSION, AND

, SMU TCAS BROADCASTING SYSTEM. Ive.

pf Appellees,

On Appeal from th

van District of New. York.

e District Cant of the United States for

the Sou

BRIEF OF MUTUAL BROADCASTING SYSTEM, INC.,

INTERVENOR. :

Lour G. CALowELl..

nos LAUTERSTEIN. 9.

Maraxcer Dans .

Percy Uf. Russet Vt..

F ; Counsel for Int

$$$

oe | a.

TABLE OF CONTENTS.

i? : e% ? Page ;

> Enmpopworory!..). ..........eecee. Bid caaldin hasnecnnenae 1

' STATEMENT... .......: ae ccbcoangesidhesns tae ekoreees cae Aa

SUMMARY OF ARGUMENT ......... hdc Winckieeaenesne wie

ARGUMENT... .....: Kudseginas Gnambsbabesyecteni wits pedavess ae ee

I: The Order Complained of is not a Reviewable Order Because it

Does Not Satisfy the Test. of the Primary J urisdiction Doctrine. . 5

Il. The Order Complained of is Not An Order Because of Its Delay

Legislative Character ........+sseeeeeeeeresenstcerceseeceeecces 16

. A. Analysis of Decisions of this Court Wherein the ‘‘Futare Oper

te ation’’ Test of Legislative Character was | Applies aceeetecece 17.

; (1) Orders Prescribing Rates .......... Gos esapies rere 18

(2) Orders Prescribing Variius Acts. or Practices. awebquesesen 23

BS ia (3) Orders Designed to Seciife Information... iubbackodee ies

B. Axthoritien, Sapper ting the a Rute’’, Test of Legislative

CHAPACEEE occ cece eeepc neces eeeneeeeeereseeaeeeenesesees 33.

CO. The Word ‘‘Order’’ Should Not Be maseatlie to Include Purely

Legislative Determinations ....,.. 0s. s ec eeeeeeerreeeeeeenees 36

. IIL. In Any Event, the Order Complained of is not a Reviewable: Order

Under Section 402(a) of the Communicatibns Act.........0+5++5+ 40

A, Orders Under Title LI of the Communicafions Act. vatqubansat 42

ae Quest Ju Judicial anew Under Title IIE of the Commuiications -

Gh cinhe eoceccegecdaccvccepecsesoesesesesovcccveecicences 43

O Legislative inaaadineapbiis Uniler the Radio Act of 1927...... “44

*D. Nature of the Orders Involved .......+0sseeeeeeees te sevede 48

—RORINE a6. uss civsnccacaseccvccvsseaves Re Sula ua taoawe as 52

APPENDIX . oo ecccscccsccesceees UUNGTL dies GAapeenient herent sss 53

mY CITATIONS. | § He

CasEs: a ,

: Agnew, John P., & Co: v. Hoage, 99 F. 2d. 349 Reape ap perry “10

” American Federation of Labor v. National Labor Relations Board,

B08 Ue 8. 401 ..cececcscececeeceeteegecseeeceseece setae egees 10, 41

American Telephone & Telegraph Co. v. United" States, 14 F. Supp. -"

BOD one o Saccccccccegscccocemsccesccsccccovevcsessvosencoress 2

American “Telephone & Telegraph Co. v. United States, 299 U. 8. 232.. 14, 32

Anniston Mfg. Co. v. cae Soe gece errr. puesented “9,12

Arizona v. California, 283 U. 8. 423 LAE RSENS DEEN PE Ss

‘Ashwander v. Tennessee Valley Authority, 297 U. B. 2BB..... eee eeee ll

Atlanta, Birmingham & Coast R. Oo. v. nited States, 28 F. 2d. 885. 29

Atlanta, Bir & Coast R. Co. v.. United States, 296 U. 8. 33. .15, 30

Avent v. United States, gt: U. B..127 ...cceeceicceccosveneesceces 12

Baltimore & Ohio R. Co. v. In tereiate Commerce Gomminion, 21 0. 8.

612... eeeeeeer “ses eeceeceeereee ° Teer eeee eee eee ee pe sueeae ses 16, 943)

ey :

; 7

ii ;: Citations Continued. . ;

Cases—Continued.

oe 5 Page

Baltimore & Ohio R. Co. v. Maryland, 88 U. 6. 456.........000eeeeee 19

Baltimore & Ohio R. Co, v. United States, 215 We BABB. cw cccccotes tes

_ Baltimore & Ohio R. Co. v. United States, 264 U. 8. 258........... 18, @4

Baltimore Radio Show, Inc. v, Federai Radio J of

Ballo Law, Ve, 1, B. 1G0 2. ccccccccccccccccdevsoscccccegeocece

spare. pretaaceuie t Co. v. State Board of Equalization, 239 U. 8. -

, River V +e ewe et hte ache an os **eeeve inch, 101 F. 24. 285... .10, 46

cae pg ceed orig tae ae acorn abalieagier «1 10

But v. Stranahan, 192 U. 8. 470......2. 2c cece eeeees @ --20,35, 36

GE GBs Os BOO cnc ck cbc nccdbiccecectoneccetsocsepervesec 19

Carolina Aluminum Co. vy. Federal Power Commission, 97 F. 24. 435.. 12

Carrell v. Federal Radio Commission, 36 | ota ebebccoes 47

Chesapeake & O. R. Co. v. United States, 5 b Paes coeedabee 15, 31

Chienee 6 0. T. B Co. v, Wellman, 149'U. 8. 334 paeceeesnedentene 19

— Federation of Labor v. Federal Radio Commission, 41 F. 2d. a

Chieago, M. & St. P. R. Co. v. Minnesota, 184 U. 8. 418... -........20, 38

Chicago, RB. L. & P. Ry. Co. v. United States, 284 U. 8. 80........ 14, 26

m5 0. & T..P. Ga" Tatemate Commerce Cozamiation, 18

BGS ccdecdecdcngecvqveyecscabendccapecescocedeceddvocece

Ougtinental Uncle National Bank & ‘Trast Oo. +. Chisago By. Oo. ’

ee Wes A nbable Rade chGcdovbesdbus ko Cedowervesteseseisdace 12

Corona Coal Co. v. Southern RB. Co., 260 U. 8. 698... .. 0.6... c cece ee 14

Courier-Fourna) Co. v. Federal Radio Commission, 46 F. 2d. 614..... 47°

Da Goose Oreck BR, Co. v. United States, 263 U. 8. 456.......... 9, 18

ware & H. Co. ¥. United States, 266 U. 8. 438....... Pb cnndovee

Director Gen. v. Viséose Co., 254 U. 8. 498... 0.0.6 cc cccccenpeeeees 9

Douglas v. Noble, 261 U. 8. 165 20... 666 cece cece te ennee evecceccs 33

Dow y. Beidelman, 125 U. 8. 689 «2... 0.6 e ccc eee ccc eeereeeees 19

er See aes Ses Se See) See Sean oe a ee ore 47

Eastland Oo. v. Federal Communications Commission, 92 F. 24. 467.. 47

—* Bond & 8. Ca. v. Securities Exchange Commission, 303 U. 8. om

©. Ge wd on debe bbbbwekeseseecbscdascudesatrdans cieesscesndhe tede

Federal Communications’ Commission v. Columbia Broadcasting Sys-

Gem, Ene, SEL UW. G. 288 .ncccccccccv'ccccvcccccccccaccescscovess 42

Federal Communications Commission vy. Pottsville Broadcasting Oo.,

Federa) Communications Commissicn ¥. Sanders Bros.; 309 U. 8. 470. 42

Federal Power Commission y. Metropolitan Edison Co., 304 U. 8.375 8

Tere ee eee eee ee Oe eee eee ee ee eee eee eee eee eee eee eee eee |

a ee of Indiana, 221

Great Northern R. Co. v. United States, 277 U. 8. 172............ 10, 41

Harriman v. Taterstate Gommeree Commision, 211 0. 8 4! Reet 28

Hayburn’s Case, 2 Dall. 409 ........:. ICY PRT TT errseye el. - 8

Highland v. Russell Car & Snow Plow Co., 279 U. 8. 253............ 12

Highland Farms Dairy v. Agnew, 16 F UO cdvccecepetobede 10, 33

Ei Farms Dairy v. Agnew, 300 U. GER ccccccedcasvcote ,10, 33

7. GOST. BD. BOS cc cccervccccovccocces fotebvcvosovves 1

Honolulu Transit & Land Co. v. Hawaii, 211 U. 8. 282...... 18

Houston v. Louis Independent Packing Oo:, 249 U. 8. 479...... 36

Citations Continued. — eX, iii

Cases—Continued. ?

Seer ee : Page

Interstate Commerce Commission v. Brimson, 154 U. 8. 447........ 28.

ee ee ee Cincinnati, N. 0. tt. Pz

Oe WME MOD nicks tout ticihiecivaddesecastiert okiehsan noe, 29

Interstate Commerce Commission v. Goodrich Transit Co., 224 U. 8.

MD aca td mdahadssannrsddes cee cdbd conde sas cee tdhulcss 14, 28, 29, 33

Kansas City 8. R. Co. v. United States, 231 U. 8. 423......... yeas M4, 29

Keller vy. Potomac Electric Power Co., 261 U. 8. 428............/..18, 35

of, v. Knoxville Water C58 DW. Be Decrecee Sbee 18

Lake Erie & estern R. Co. v. State Pub Utilities Commission of

A TE ECE MED. cp deverevccrhoncdthetepsdéivvectidccvecne

Lambert Run Coal Co. v. Baltimore & O. R. Co., 258 U. 8. 377..... 14

Rake 6. Dita, G68 Bi GB vice ccd cccctsceeccionss Cicpeesiccrs 0

Liberty Warehouse Co. ‘v. Grannis, 273 U. 8. 70........... ageevese 12

Louisville & N. BR. Co. v. Garrett, 231 U. 8. 208 .........446. oseeo

Louisville & N. BR. Co. v . Mottley, 219-U. Me Gee ccDintvovcedessece s4n

Maynard vy. Hill, 125 U. 8. 190-......,. eacilks dcubdvakecnknacte’ 19

— ttle Rock R. R. Co. vy. Southern Express Co., ee

Wh ph agownGuhe so cbeere chia veeaces Mididersodduededevheed’ \.

Midland V: R. Co. v. Barkley, 276 U. 8. 482.........00.eeeege05 9

Mississippi Barge Line Co. v. United States, 292 U. 8. 282.......... 36

Monecacy B ing Co. v. Prall et al., 90 F. 24. 421.......... 10, 46

sane ©, Einae Staten, S82 Fo 600 SastaWebshbevtsbesdneetd odee. 18

» Mann v. INiaois, 94 U BED wodcbcdecevovovccconccccctencevedee 19

Muskrat v. United GD We Ty Bees ccccscccccstocets vedeves 8,12

Myers v. Bethlehem Shi ee, B08 U. O. Ghv ec ccctevevces 9,13

, Nashville, C. & St. L. RB. Co. v. Wallace, 288 U. 8. 249...........45- 12

New Jersey v. t, 269 U. B. B28... cece eee eeeeeeeeeeenees 12

Mew York v. Tiinols, $74 U.. 408 ....4...ccccccsccccscsvccecvee 12

Norfolk & W. R. Co. vy. United States, 52 F. 2d. 967..... a Pe 15, 30, 31

Norfolk & W.'R. Co. v. United States, 287 U. 8. 134..:..... N... 15, 30

N P. R. Co, v.. Bolum, 247 U. 8. 477.0... 0c cece ccc cecceeee

“Norwegian Nitrogen Products Oo; v. United States, 288 U. 8. 16 os is

Gate Valley, Weter v. Ben Avon 263 U. 8. 287:....... 18

my os: Colapay Onlabome "Gas @ Bloctrie Company, “

OD ccvbedevcddccdereccesovsbstovccovetovivnrléidriveves

Olsen v. Nebraska, 318 U. 8. 236° dia dad dbawhs dues dcabvtdiehveaten 12

Opoe Cotton Mill Ine. v, Administrator, 818 U. 8. 126 sbobced svi 20, 35

ey Sapereie t Radio Co, v. Federal Radio Commission, 65.F. |

Palle Te De a Bee eee 176 dobeeneges 20, 35

} 4 £ A PPR errr

, 04 U. 8. 164..... ebbhpbedsnebdsete 19

Be We We GOD. ccdeccateucvévaccacds 12

RUM sd ivbsideureutednest ia 12, 13

B eer es "10, 36

ther Commufiicat -

8 ee eae cweten 10

A. Pere Stree eesececees 13

yf Se eee pry 9; 18-22, 24, 35

hern R. Co., 281 U. 8. 412...........

~ od , 222 U. 8. 380. “i638, 26

aoe & Co., 154 U. 8. 362........6.06+ ico

v. Baltimore & O. R. Co., 220 U. 8. 506...)7....... Sacent 9

Rochester ‘Telephone Corp. v. United States, 307 U. 8. 125,

eer 3, 5-7, 11, 18, is

Rogs v. Oregon, 227 U. 8. 150 21.20. cele cece cece cee cecssssecees

Salzman et al.’y. Strom Carisce Tel. Mtg. Co., 46 F. 2d. 612.. 45

San Diego Land & Town v. Jasper, 189 STG ecegeaet ses 19

° 9

iv Citations Continued. y °”

- Casrs—Continved. ole tes 7.

Page

Scrippe-Howard’ Radio, Ine. v. Federal Communications Commie

—— U. 8. —— (Apr. 6, 1942) once ccc cece ec enrederteesens 28 @

Shannahan v. United atates, 303 U. GF. G06... cc ascccrccress meee

Shields v. Utah Idaho C. R. Co., 305 U. B. 177.0 eee ce cee eee ver

Sinking Fund Cases, 99 U. 8. SE UO RE dy ace ndedes Sroatpeanine We ‘3

Smith v. Cahoon, 283 U. 8. 563 2.2.6 cece cc ere nennnes Perr eee 10°

Southern BR. Co. v. Virginia, 200 U. 8. 190:.........- ‘ogesccoses 24

State Corporation Commission v. Wichita Gas Co., 290 U. 8.

i POR rer PRET TEE ee Le 15, 18, 31

State ex rel. State Board of Milk Control v. Newark Milk Co., 118

* Aecagen & ee ~ we Ng Ay 156 U. 8. 649,...:... Se e 19

vkes ef al. v. Jenny Wren BP. 98. 79D. wc cccccdascgsccees 0, 46

Texas & Petipa Abilene Cotton Oil Co., 204 U. 8. 426..°....... 9

\. Texas & P..R. Co. v. American Tie & Timber Co., 234 U, 8. 138.. 9

; Tri-Sta‘e Broadcasting Co. v. Federal Communications Commission,

500 0 Os OO Ks neck dev ggndsetpivesetices didi cugputies > 47

, United’ States v. American Bond & M rk a

United States v. Atlanta, B. & C. BR. Co., Mesinese 10, 15, 20

United States v. Bailey, 9 Pet. 267 ........--..-/- poweepbecesee 9

United States v.. Baltimore & Ohio R. Co., 293 & PY Perr 14,27

. United States v. Berwind White Coal Mining Co . (Astigned Car

Gasasd, B94 GU. B. OB8 ‘ccicccccspcccccvsgecccscosscccccccase 13, 14, 25

United States v. Bush & Co., 310 U. B. 371... 0. cee ce Fee e eens 20, 35

Unjted States v. Ferreira, 13 How., 40... 2.606.666 cccccecceceecees -

United States v. Griffin, 303 U. 8. Mi cagecvesaeat fepecebos 4, 10, 40-42

United States v. Grimaud, 220 U. 8. B08... 0 6c ccc eee e en nenee 20

United States v. Illinois C. RCo. 266 U, i ken veees b

United States v. Loe Angeles & 8. LB. Co., 272 U. 8. 209...... 8,11, 13

United States v. Michigan Portland Cement Co., 270 U. 8, 521...... 12

Thrifed States v. Pacific & A. R. & Nav. Co., 228 U. B 87.........- ”

United States v. Ripley, 7 Pet. 18%... 06.66 c cece eee neeeeeee ‘Anode 38

United States v. West Virginia, 206 U. 8, 468.... 666 c cece eee ' 38

United States Nav. Co. v, Cunard 8, 8. Co., 284 U. 8, 474-........ 9.

Ward v. Federal Communications Commission, 108 F. 24. 496...... 47 /

West Coast Hotel Co. v. Parrish, 300 U. 8. 379... 0-666 e ec eenes Fe

Western & A. R. Co. v. Georgia Pub. Serv. Commission, 267 U. 8. 493 ”

White v. Federal Radio Commission, 26 F. 2d. 113...........-- coe O°

White v. Johnson, 282 U. 8. 367...... 00.66 c cece eeee Cc eswibe nets 45

Willing v. Chiesgo Auditorium Arso., 277 U. 8. 274....-..0--066. 12

Woodmen of the World Life Ins. Soe. ¥. ‘Foderal Commentestene

Commissien, 105 F. 24. 75 ..... Coccgccedecversvererogecees cove 47

Ramo Sratures J ;

Federal Rafte Act of 1927, “ tat. 1160: ~

Bae, 6%. ccc cc cece ccc cc lope Mec ecccccesccsUEETicenevcccse 44

Bec. is se Se et sbberabéddcernsbetOeoesoeseseasenas 44 46

Conmpetentiens Act of 1934, 47 U. 8. C. § 154 et seq.:

BIB) oo Sb ccccccccccccccacccsccesecssccooses gedtocccncceseeneee

FP , BOD 2 co cvccccvcrccccsccsoccceseess Proocadbavcesesvecese 1, 44, 50

od eT CE eee 44, 48

BOB(i) oe cece pec ccc rceccetecccscsreeeseremsesesssseesenes 5

BOB (MM) ow cence ieee e cence erwer ene rensatseereaessseseens 50

305(a) ecloceccccesccecccessesesesese Jocereserecsores 1, 50

STD) 0 0 0 -covcsccceces Seerssedonsvs prapebasosporesocsters 1, 50

BOO(m) «6 ce eeuee sono cnccccesbdeccosocsetecasisocededovesss 6,50

BIG(D) «1. wees Edevccccadectctvecdstacccqepbarteesecenses 43

2) : >

Citations Continued. v

i ,

--§ 5 . ee

0 oy ne ST iaui tak upresiconvee ites 1, 43,546, 50

EE Care phsbee ds dantas db cbeacsneubhepiltreduaws 43, 45,46, 48

vese COPE EEE RAR eee Hee ESHEETS SESE EEE SEE EEE EES 50

Dd bP ENSURE ORE POR Ohh 0042 bObNE DUDS 6550605 b0550. 0p %) 0's 55 88 50

SING) hc 6 boc cccrecvancovcctoesevscccccccdevesvesecestbees }

|” Sap RR Staten 5 eRe re bceueane eS oe 43

> eee pec cnawas Wee caapewiabeccs Con wciee 1, 43, 45

le a ESE FESS ae. See eee. 1, 43, 45, 50

BN oF oe alk aga nc ons UGEss oBubes SP 0ss's eo -8, 4, 10, 16, 17, 40-43

eer SiedencViGsesvieusas 6, 10, 41-46

P + hel Wiantovreaskeabvkesspedvvehaveuee & Sy rTT Loe veeve be 6

. Fea PEN ry See DERR bec eic Uolut sawkvews 2750

“606(e) . Coederesscces Po ceeeeveces meee ee esereresesesesone 2,49

MISCELLANEOUS STATUTES. :

Boiler Inspection Act; 42 Stat. 659 ............. Pitiskest akaaccuen 27 -

Commerce Court Act, 5 SS rere errr. huscksekeee 15, 41

Debs Pater Bats GD Gt BPO on vec cescccccscsqccvcccccecncss 1

Interstate Commeree Act, 24 Stat. 384, as amended by 34 Stat. 7 -

30, 42

Post Roads Act of 1866, 14 Stat. 301......... siediebgavadvedixes 42

Railway Mail Pa : Act, 39 Stat. eerie ~wacseans ee ery eee 41

Transportation Act, 41 Stat. 478............. iwen te Sedewacekaas 25, 26

Urgent Defciencies Act, 38 Stat. 208...°............ 4, 5, 10, 15, 16, 24-42

CONGRESSIONAL BILLS AND jRePoers 5

73rd

DM ered ek dot ae as cess wanna cbtes ipevesecicateheuct tapes 43

8. 2910 eer er ewer eee eweerereeaeaeeaeeeereweeaereeneeree < oe eee eee eeewnwneneane 43

, DED RAO CO SAP KOS Sac np 65K 66 Cove deRdO® spohacoheceat <a 43

. 8. Rep. 1918 .......... Gb Peeks Ohekdass kkedartheGsee we bedbeces 43

dM Stgtdy west nevse steer sobs Sa babodveaee ere ee

CONGRESSIONAL Heanixos i é

Hearings before the Subcommittee of the Huse Committee seared

Judicipry on H. R. 4236, H. R. 6198, and H. R. 6324, March 17

and April 5, 1939, 76th (ong Jcvaicaiigcnbthasdahsebarssscuns? 39

Hearings before the Subcommittee of the Senate Committee on the * —

Judiciary on 8. 674, 8. 675, and 8. 676, April 2 to July 2, 1941,

77th COMQ. «20 eeee cece cece ete ceececenecereccsecsceseeees ~-+- 39

." ? Ws

CONGRESSIONAL DepaTEs = 7

i IRIE ors LG bcbg scsdensniunhanspabes's 46

SO QO, TOG. GED. oe ck vcccdeticcscccgescveccsovces ccnp kvsupes 43

78 Cong. Ree. 10988 one Beene ec eee e eee e eee cep eeeeeeeeenees gr

; mane

PUBLICATIONS OF THE COMMISSION :

. Order of May 2, 1941 ..............-.-- fy pep pains Voy hee 2,6

Heport and Order of October 11, 1941..... fanbiace » 2

ee Nd ac is cones aeecthanakesieenes -1l

Minutes of the Federal Communications Commission, October 31, 1941. 6

eens eee eect Moccdoescsseedniovcespeccsce 2,6

Seventh Annual Report of Federal Communications Commigsion,

>» Per oreenee eeeoccvceiifernerccoeeesorsccoseesbeg eee ween 48,49

MISCBLLANEOUG mL °

AGidavit of Fred Webber. «oi co cc Meccocvcccescicccccssccsscccces 2,3

Blachly & Oatman, + Administrative Legislation and Adjudication,’’

RONG 6.0.0 65 0) oadassdacdbpeilebsrevertisicasessgeisiseonehende

Comer, ‘* Legislative Functions and National re Authori-

ties,”? BORE cscoscvacetcosecradecsseseverssMreqecdcovetshevees 34

Dickinson, ‘‘ Administrative Justice and the Supremacy of the Law’’.22, 34

Freund, ‘‘ Administrative Powers over Persons and‘ Property,’’ 1928.21, 34

General Radio Regulations, Cairo, 1938 ............62eseeceeeeeees 49

Goodnow, ‘‘Principles of the Administrative Law of the United

Ghaben,”? WES scasccccvcdcevacsensevecdcicsccevgnscccpevvedoee 34

International Telecommunications ‘Convention, Madrid, 1 OR sites 49

North American Regiona) Broadcastin te aepeaeay Havana, 1937:. 49 .

Opinions of United States Commerce Court.........- 00.00 eeeeeeees 15

Port, ‘‘ Administrative Law,’’ 1929 .......... 00s eeseeceeeeeeeeees 34

Reports of American Bar Association, 2937 and 1938..... ‘“epediene 39

Report of Attorney: General ’s Committee on Administrativé Procedure. .39

Report of Committee on Ministérs’ Powers, 1932 ..........6++.00+- : 34

Report of President’ s Committee on Administrative Management,

est FE occ cctocee pessoceséve éricces Pieces os ecerecveveseseses 34

. ’

IN THE

Supreme Court of the Anited sates =

“ October TenM, 1941.

(oe

Nos. 1025-1026.

NATIONAL Broapcastine Company, Inc., -.

_ Woopmen or THE Worvp Lire INSURANCE Society, aND

StroMBeRG-Cal son TELEPHONE Manuracturine Company,

A eretonts,

Tue Unitep Sion or AMERICA, —

*» Tue Feperan CommuNIcATIONS CoMMISSION, AND

. Murua. Broapcastine System, Inc.,

Appellees.

geal Decaneies Broapcastine System, Ino,

- ial its

— THe Unrrep hevais or AMERICA,

Tue Feperat Communications CoMMISSION, AND

Mutvat Broapcastine System, Inc.,

3 Appellees.

On Appeal from the District Court of the United States for

m the Southern District of New York.

BRIEF OF MUTUAL BROADCASTING SYSTEM, INC.,

INTERVENOR.

—_—_—_—_—_—_— y’

INTRODUCTORY. . |

The opinion below, jurisdiction, question presented, and

statutes inyolved are sufficiently set forth in the Govern-

ee For convenient reference (because of the

contentions made in Point III of this brief) we have set ©

forth: Section 4(i) of Title I, Sections 303, 305(a), 308(b),

312(a), 315, 319(a), and 325 (b) ‘and (c) of Part I of Title

# 2. ° ™ ; ar

es,

ITI, ‘Section 502 of Title V, and Section 606(c) of Title VI.

of the Communications Act of 1934, 47 U. be $$151 et seq., 7

_in the Appendix. xo |

‘STATEMENT.

» Mutual Broadcasting System, Inc., intervened-in both.

eases below as.a defendant (NBC, R. 431; CBS, R. 455).

' Mutual participated in the original proceedings before the

Commission (Report on Chain Broadcasting; NBC, R. 29

et seq.; CBS, R. 49 et seq. ) and, in addition, after the Com-

mission’s Order of May 2, 1941, filed a petition with the —

Commission requesting certain ‘amendments to the regula-

tions. As a result of this petition, and the ensuing oral ar- ,

. gunient and briefs, the Commission made its Supplemental

Report and Order of October 11, 1941 (NBC, R. 201; CBS,

R. 20). No petition, proposal or other request for amend-

ment of the regulations involved has been made by either

appellant, their position having been that the Commission

had no power or jurisdiction to promulgate any of the reg-

ulations.

So far as the proseedinige and the facts are relevant to

these appeals, they have been adequately summarized in

_ the Statement in the Government’s Brief..

The interest of Mutual in the subject-matter i is shown in

. that Statement, and in the-Commission’s Report on Chain

Broadcasting, . supra. It is shown in greater detail in the

_affidavit.of Fred Weber, its general manager, fited in the

court below in opposition to appellants’ motions for tem-

porary injunction (NBC, R. 263; CBS, R. 347). The irre-

parable injury to Mutual, as the fourth and youngest na-

tional network organization, which has occurred and is con-

tinuing to occur through the maintenance of the restrictive

provisions in appellants’ network-affiliate contracts ; the vir-

, tually insuperable: obstacles “which these restrictive provi-

sions place in the way of the establishment of any. new

» national network by barring access to 8 large number * Ok

important markets in the United States where there are

three or less full-time broadcast stations; and the resulting

‘ , - ~

impairment in the service rendered to the publi¢e because

of the foreclosing of competition, because of the limitations

on the independence of broadcasters, and because of the de-

creased revenue to many such broadcasters—all are abun-

dantly shown in the Commission’s Report (NBC, R. 34 ef

seq.; CBS, R. 46 ¢t seq.) and in Mr. Weber’s affidavit (see,

particularly, NBC, R. 278 et seq., CBS, R. 362 et seq.), and

indeed, have nevér been seriously controverted.

‘SUMMARY OF ARGUMENT. |

The order complained of is not a review able order under |

Section 402(a) of. the Communications ‘Act for reasons

which may be grouped under three headings:

_ I. Qhe order does not satisfy the primary jurisdiction

doctrine formulated in Rochester Telephone Corp. v. United

States, 307 U.S: 125,°1392 Resort to the courts in the situa-

tion presented by the order ‘‘is eithey premature or wholly

_ beyond their province’’ (p. 130).

It ise premature because ‘the order brings no

sanctions into play and because it advers@ly- affects such *

rights as appellants may have only on the contingency of

future administrative action, namely; action on applica-

tions’ for renewal of license. The procedural and appeal

provisions of the Act applicable. to such action, and the-

regulations governing practice and procedure before the .-—

Commission, afford adequate and legally sufficient safe-

‘guards for the rights of appellants.

It is wholly beyond the proviiice of the courts a,

because the order constitutes only a declaratioy of policy

of legislative character but fails short of being an actual

exercise of legislative power. It does not, b scchroatind pre-

sent a justiciable controversy. - -

Appellants have no judicially cognizable right to.

he protected against such adverse effects as may result -

from inchoate administrative action of this character.

IL. If it be assumed that the order satisfies the primary

jurisdiction doctrine, the order is of purely legislative char-

acter wad is therefore not reviewable under the statutes

involved.

The test of what i is “legislative” i is not whether

the action leoks to the future, but whether the action pats ;

into effect a general rule without reference to any particu-

lar case. Decisions of this Court seeming to adhere to the

_ former test are, with the exception of one class of casés,

readily distinguishable. The exception. (treating of or-

ders requiring periodic reports or prescribing .uniform

aecounting systems) is justifiable on other grounds.

Important considerations of public policy are in-

volv ed. Opinions differ as to the character and extent of

supervision (administrative or judicial) which’ should be

provided over the purely legislative determinations of ad-

ministrative agencies; it is a most difficult problem of politi- .

cal science. Congress should not be deemed in 1913 (or be-

fore), or in 193¥ to have intended a result equivalent to that

sought by the recent highly contro versial Walter- Logan

Bill. The problem, affecting many agencies and a vast ac-

cumulation and annual output of substantive rules and’ reg-

ulations, should be Jeft to Congress to solve. —

IIL. In any event, Section 402(a) does not extend to the

purely legislative determinations of the Federal Communi-

cations Commission under Title mm of the Communications

’. Act.

| The Urgent Deeinntes ‘Act’ has been held not -

to exterid to certait orders, even though final in character.

. United States v. Griffin, 303 U. S. 226. It is a matter of the

intent of Congress.

; Section 402(a) shoul@ be limited (1). to those or-

ders under Title II of the Act which are analogous to re-

viewable orders of the Interstate Commere¢ Commission, .

and (2) to'those orders under Title III which are quasi- |

_ judicial. and not subject to Section 402(b). This is sup--

‘ported by evidences of the intent-of Congress i in the legisla-

tive history of the Act and in the provisions of Title H1; by“

the —— of the Radio Act of 1927, which was

oa = os

pa, Woe:

- 5

taken over almost verbatim in Title III, and the,omission of

~ the Radio Act of 1927 to provide for any judicial review of

such legislative determinations; by the experience of some

15 years under that Act and under Title ITI, during’ which

administrative action on applications. and judicial review .

under Section 402(b) has proved an adequate method of

testing’ the. Commission’s assertions of regulation-making

‘ authority; and by the nature,-wide variety and importance

of the regulations which the Commission is authorized to

promulgate, toget! er with the large number of persons af- .

fected.

ARGUMENT.

o Order Complained of is not a Reviewable Order Because

; it Does Not Satisfy the Test of the i aa be Jurisdic-°

tion Doctrine. .

In general, we agree with the contentions made in the Gov-

ment’s Brief: ‘‘these suits are premature because the reg-

ulations have no immediate effect but are mere declarations

- of policy to be applied in future administrative proceed-

ings.’’ We agree, also, with the position that ‘‘the conven-

tional requisites of equity jurisdiction are not present’ —

and that no court, whether a statutory court under the Ur-

- gent Deficiencies Act or a single judge sitting in equity,:

would have jurisdiction, either at this time or at any time ©

as long as the regulations aré maintained in their present

form as mere declarations of policy. We do not agree with...

_ the apparent concession that a purely legislative determina-"

tion, particularly such a determination under Title III of the

‘Communications Act, is reviewable if it satisfies other tests,

and shall discuss this matter separately under Points II and

III of this brief.

The facts and circumstances showing that resort to the _

courts in thé instant caseg was ‘‘either premature or wholly

+ Rochester Telephone Corp. v. United States, 307 U. S. 125, 182.

4 sats get

beyond their province,’’ and that the order complained of

does not satisfy ‘‘the primary jurisdiction doctrine’” are

_reviewed at length in the Government’ s Brief, and rieed only

be summarized : \

1. The phrasedlogy of the Commission's: order (sim-

ply-adopting .the regulations), and of the regulations —

‘revealing each on its face that itis simply a declara-

tion of poliey to be applied in future administrative ,’

proceedings, namely, proceedings under, Section 309(a) .

of the Communications Act with respect to applications

for renewal of license (NBC, R. 127, 212,217 ¢.CBS, R.

17, 32), confirmed by the express language of the Com-

mission’s Report of May 2, 1941 (NBC, R. ~ CBS, R.

141). ; ;

2. The assurance afforded by the express language of .°

' Section 309(a) that any future administrative proceed-

ings must include. notice and a full and fair hearing on

_ the quasi-judicial model, with the right to intervene ac-

corded to interested parties both by necessary implica-

tion of the statute and by the Commission’s regulations,

before any declaration of policy contained in the order

can possibly achieve any legal effect, and with the right

to petition for rehearing under Section 405 of the Act.

3. The adequacy of the judicial remedy afforded both

to the applicant and to any interested intervenor by

Section 402(b), in the event the declaration of policy is

applied and the renewal application ig denied.

- 4, The assurance afforded by the Commission’ s Min-

- utes of October 31,*1941 (NBC, R. 379; CBS, R. 453),

that any renewal applicant desiring to contest the valid-

ity ofathe regulations, or the reasonableness.of their ap-

plication to his particular station, will be protected

against injury pending the proceedings and appeal, and

even against ultimate loss of license.

2 Rochester Telephone Corp. v. United States, supra, pp. 130, 139,

| 7 ‘

. The certainty that{there will be future administra-

tive proceedings in which*National and Columbia ‘will ©

have full opportunity to intervene and to be heard both

before the Commission, the United States Court of Ap-

peals' and, on certiorari, this Court—due to the fact

that at least two licensees (appellants Woodmen of the

World and Stromberg-Carlson*) will surely desire fo

“contest the validity of the regulations, or the reason-

ableness thereof as applied to their stations, together

with the inherent probabijity-that other licensees, affil-

iates of both National and a, will elect to do

likewise. ' ge

Appellants’ mistellaneous contentions bearing on the fore-

going have been adequately discussed in the Government’s

Brief. _

The relevant for nsiderations and authorities have been so

recently. and so thoroughly canvassed ‘in Rochester Tele-

essary to discuss the cases at length. After enumerating

ar three categories in which this Court’s prior decisions in- .

ying the ‘‘negative order’’ doctrine - fall, this Court:

( rough Frankfurter, J.) said:

“In group (1) the order sought to be reviewed does

not of itself adversely affect complainant but. only ° Soe

fects his rights adversely on the contingency of future -

administrative action. In view of traditional coneep-

‘tfins of federal judicial power, resort to the courts in

these situations is either premature or wholly beyond

their province. Thus, orders of the Interstate Com- :

merce Commission setting a case for hearing despite a.

« Tn the complaint? these appellanis alleged ffiat the sibilities

_ would regult in ‘‘loss of revenue * * * in an amount in excess of

- $100,000 ‘per year each’’ (NBC, R. 12). In affidavits filed in the

court below, they amplified the allegations of apprehended irre-

parable injury (NBC, R. aeh, 258). 2

challenge to its jurisdiction,’ or rendering a tentative®

or final valuation’ under the Valuation Act, although

claimed to be inaccurate, or holding that a carrier is

‘within the Railway Labor Act and therefore amenable

to the National Mediation Board, are not reviewable.

‘‘The goyerning considerations which keep such or-

ders without the area of judicial review were thus sun-

marized for the Court by Mr. Justice Brandeis in deny-

ing reviewability of a ‘final valuation’ under the Valu- -

ations Act [ arch 1, 1913, 37 Stat. 701, chap. 92,

49 U.S. (. A, $19a]: ‘The so-eall der here com- .

- plained of is one which does not command the carrier to

do, or to refrain from doing, anything; which does nof

grant or withhold any ‘authority, privilege or license;

which does not extend or abridge any power or facility ;

_ which does not subject the carrier to any liability, civil

or criminal; which does not change the carrier’s exist-

ing or future status or condition ;-which does not deter-

mine any right’or obligation.’ ‘United States v. Los -

. Angeles & S. L. R. Co., 273 U.S. 299, 309, 310.

* **Plainly the denial ‘of judjcial review in these cases

does not derive from a rexareNgr the special functions

of administrative agencies, Julicial abstention here is

merely an application of the traditional criteria fors

Car. bringing judicial: action into play.: Partly these have

been written into Article 3 of the Constitution by what

is implied from the grant of “judicial power” to deter- ;

mine ‘Cases’ avd ‘Controversies,’ Art. 3, § 2, U.S?Con-

stitution.”. Partly they are an a@pect of the procedural

philosophy pertaining to the federal courts whereby,

ever since. the first: Judiciary Act, Congress. has heen’

**3 United States v. Illinois ©: &. a 244 ‘U. & 82. Ounpere

- FederafPower Conan v. Metropolitan Edison. £0, 304 U.S

375.”’ :

“6 Delaware & H. Co.,.v. United States, 266 U. . 438. ‘

_ “I United States v. Los Angeles & 8. L. R. Co., 273 U. S. 299.”

‘*8Shannahan v. United States, 303 U. S. 596; compare Shields v. -

-. Utah Idaho C. R. Co., 305 U. S. 177, 182-184, ante, 170.’

‘*®Hayburn’s Case, 2 Dall. 409, is the symbol for considerations

which limit the constitutional power of the federal courts, though

that case itself never reached adjudication. See, also, [’nited States.

v. Ferreira, 13 How. 40; Muskrat v. United States, 21% v. S. 346."

se to authorise review of interim steps ina proceed-

g’’? (pp. 130-131)..

After analyzing the other two categories, this Court contin-

-¢ ued:

‘

- ‘From. these” general eeiehineadlens the Court

evolved two specific doctrines limiting judicial review.

of orders of thé Interstate Commerce Comission. One .

is the primary jurisdiction doctrine, firmly established

in Texas € P. R. Co. v. Abilene Cotton Oil.Co., 204 U.S.

—% 426. Thereby matters which call for technical knowl-

; ‘Dayton-Goose Creek R. Co. v. United States,.263 U. S. 456; Western’

edge pertaining to transportation must first be: passed

upon by the Interstate Commerce Commission before a

court can be invoked™”?’ (p. 139).

To the cases cited in the Snails may be ‘added the follow-

ing unsuccessful attengts to secure review under the Ur-

19 Prior to §7 of the Act of March 3, 1891, authorizing an . ap-

peal to the Circuit Court of Appeals from a decree granting a pre-

liminary injunction, review ‘in a case not involving ‘a final judg-

ment’ was unknown in the.federal judicial system, except insofar

as it was present in the practice of certificagjjon introduced by § 6 of

the Act of April 29, 1802. See United. States v. Bailey, 9 Pet. 267. |

‘For state court decisions #he requirements for finality of the original

Judiciary Act have been adherad to. Section 237, Fudicial Code, ‘as

amended, 28 U.S. C. A. § 344. Review of action of the federal dis-

trict courts not involving final judgments can be had only in a’

limited class of cases dealing wit interlocutory. injunetions, re-.

‘ eeiverships, and criminal appeals. Sections 129 and 238 of the

Judicial Code as amended, 28 U. S. C. A. $§ 227,345. This Court,

however,*may take jurisdiction on certiorari before the appellate

jurisdiction of the circuit court of appeals i is exhausted.”’

- 4€22 See also, e. g., Baltimore & O. R. Co. v. United States, 215

U.S. 481; Robinson v. Baltimore & O. R. Co., 222 U.S. 506; United

States v. Pacific & A. R. & Nav. Co., 228 U.S. 87; Feras.€& P. R. Co.

v. American Tie & Timber Co., 234 U. 8. 138; Northern PB. Coe. v.: .

Solum, 247 U. S. 477; Director Gen, v. Viscose Co., 254 U. S. 498;

& A. R. Co. v: Georgia Pub. Serv. Commission, 267 U.S. 493: “ig?

land Valley R. Co. v. Barkley, 276 U. S. 482; Railroad Comrs.

Great Northern R. Co.. 281 U. S. 412. The doctrine has been se

general application, e. g., United States Nav. Co. v. Cunard 8. 8.

Co., 284 U: S. 474; Myers v. Bethlehem Shipbuilding Corp.; 303. -

U. S. 41. Compare, also, Prentis v. Atlantic Coast Line Co., 211

~U.8. 210; Anniston Mio. Co. v. beaten, 301 U. S. 337.’’

2 7

10 |

gent Deficiencies Act because of the lack of finality in the

. Commission's order, United States v. Atlanta, B. & C. R.

Co., 282 U.S. 522, and-Brooklyn Eastern District Terminal

v. United States, 28 F. 2d. 634, or because the order, though

final, was not intended by Congress to be within the scope of

the judicial review provided, Great Northern R. Co. v

United States, 277 U.S. 172, and United States v. Griffin,

303 U.S. 226. See also American Federation of Labor v.

* National Labor Relations Board, 308 U. 8. 401.

Other cases to the same effect, arising in equity but not.

under the Urgent Deficiencies Act, where relief was denied

meena prematurely sought, include Highland Farms Dairy ©

Aqnew; 300 U. S, 608, 616-7, aff’g 16 F. Supp. 575; P. F?

Ps tersen Baking Co. x. Bryan, 20 U.S. 570, 575-6; Porter v.

Investors Syndicate, 286 U. 8. 461, 468; and John P. Agnew

é Co. ¥. Hoage, 99 F. 24. 349, 351. Particularly conclusive

‘against the right of appellants Woodmen of the World and

Stromberg- ‘arlson (in No. 1025) to relief under Section

402(a) when a plainly adeqttate remedy is available under

Section 402(b) ‘are Black River Valley Broadcasts, Inc. v.

_ MeNinch, et al., 101 F. 2d. 235 (App. D. C.), cert. dem. 307

U. S. 623; Monocacy Broadcasting Co. v. Prall et al., 90 F.

2d. 421 (App. D. C.); Sykes et al. v. Jenny Wren Co., 78 FS

2d, 729, 732 (App. D. C.), cert. den. 296 U. S. 624.

As was stated by this Court in Highland Farms Dairy,

Tne. ¥. Agnew, supra (p. 616),

‘One who is required to take out : a license wilknot be

heard to complain, in advance of application, that there

ix danger of refusal. Lehon v. Atlanta, 242 U.S. 53, 56; *

Smith v. Cahoon, 283 U.S. 553, 562, “He should apply

and sée what happens.’’ :

To the same effect, see Porter v. Investors Syndicate, supra.

). 468. Similarly, a person aggrieved by a regulation of

the C omimnission should seek relief (as Mutual did success-

_+fully in this very proceeding) by applying to the Commis-

sion. Red ‘‘C’’ Oil Mfg. Co. v. Board of Agricuiture,; 222

U. S. 380, 394-5; P. F. Petersen Baking Co. v: Bryan, 290

ll.

U. S. 570, 575-6. The Commission’s rules and regulations

contemplate, and expressly provide for, petitions by any

person for revision or modification of any of its rules and

regulations and, in appropriate cases, for hearings on such

petitions. Rule 1.72(c). “1

Under this heading we are concerned cotenavtle with the

fact that appellants’ suits were premature. - Even, how-

ever, were the suits to be regarded as not vulnerable be-

cause of prematureness alone, they would still be defective

in that =~ °

‘*resort to the court in these situations is * * * wholly

beyond their province.’”

In wait: this is beeause, to the extent the regulations are

final, they are purely legislative (a matter discussed under

Point II below), and, to the extent they fall short of being

legislative, they constitute statements. of governmental

policy with which the courts will ndf interfere. In United

States v. Los Angeles & 8. L. R. Co., supra, this Court said,

‘*No basis is laid for relief under the general equity

powers. The investigation was undertaken in aid of’

the legislative purpose of regulation. In conducting

the investigation, and in smaking the report, the Com-

mission performed a service specifically delegated and -

prescribed by Congress. Its conclusions, if erroneous

in law, may be disregarded. But neither its utterances,

nor its processes of reasoning, as distinguished from

its acts, are a subject for injunction”? (Dp. 314-5).

As stated in Ashw ander v. Tenviessee Valley Authority, 297 ©

U. S. 288, 324 (Hughes, C. J.),

“The pronouncements, polici ies and program of the

Tennessee Valley Authority and its directors, their mo-

tives and desires, did not give rise to a jutticjable con-

troversy save as they had fruition in action of a definite

and concrete character ¢ onstituting an actual or threat-

‘ened interference with the rights of the persons com-

4 Rochester Teleph~ .¢ Corp. ¥. United States, supra, p. 130:

{ Z

plaining. The judicial power does not extend to the de-

termination of abstract questions. Muskrat v. United

States, 219 U. 8. 346, 361; Liberty Warehouse Co. v.

“Grannis, 27 (3 U. S. 70, 74; Willing v. Chicago Midi-

- lorinm Asso., 277 U. S. 274, 289; Nashville, C.& St. L. ~

R. Co. v. Wallace, 288 U. 8. 249, 262, 264°’. (p. 324).

- See also New Jersey v. Sargent, 269 U. 8. 328; New York v.

Illinois, 274 U.S. 488; U ‘nited States v. West Virginia, 295

U.S. 463, 474, and Arizona v. Califotnia, 283 U. S. 423, 462,

cited’ in’ the same opinion; the dissenting opinion of

0 J., in Pennsylvania v..West Virginia, 262 U. S.

- 553, 610; Ayniston Mfg. Co. v. Davis, 301, U. S. 337, 355;

Pérkins v. Eukens Steel Co.,310 U.S. 113. In Electric Bond

> & 8. Co. v. Securities Exchange Commission, 303 U.S. 419,

this Court stated (Hughes.’C. J.),

“Defendants are not entitled to invoke the: Federal

Declaratory Judgment Act in order to obtain an ad-

visory deeree upon a hypothetical state of facts’’ (p.

443).

See iso C scald Aluminum Co..v. Federal Power Commis-

= SION, 97 F. 2d 435 ( “1 © 4).

If, notwithstanding the safeguards afforded by later ad-

ministrative proceedings, there is a possibility that, pend-

ing the contests over the wisdom or legality of- the Com-

mission’s ultimate application of its announced policy, a

measure of injury will result to appellants, it is at best .

conjectural and of a character not properly the subject of —

judicial cognizance.; Insofar. as the regulations’ operate.

within the sphere of regulatory authority, the network or-

ganizat®ns cannot obstruct such regulatory activity on the

‘hasis of their private contracts. Louisville d N. R. Co. v. * |

®———-wotey, AI US. 467; Highland v. Russell Car & Snow—

| Plow Co., 279 U. S. 253; Avent v. United States, 266 U. S.

127; United States v. Michigan Portland Cement Co., 270

U. 8. 521; Contine ntal Illinois National Bank & Trust Co.

v. Chicago Ry. Co., 994 US. 648; 680; W esi Coast Hotel Co.

v. Parrish, 300 U. 8S. 379; Olsen v. Nebraska, 313 U. 8.'236,

ae The Assigned Car Cases, on U. S. 564. Incidental

effects resulting from administrative action frequently do

not constitute injury. United Stats v. Los Angeles € S. L.

_R. Co., supra, p. 314; Myers v. Bethlehem Shipbuilding

Corp., 303 U. 8. 41, 47-8; Perkins v. Lukens Steel Co., 310

U. S. 113, 125.

The cases cited by appellants are not apposite. None of &:

them deals with a mere declaration or aunounceme of

policy, much less with a deelaration or announcement w

if and when it is applied, may be fully tested in an: ade

quate quasi-judicia}<proceeding required by statute, which

proceeding, i in turn, is subject to judicial review provided

by statute. All of them have to do with orders which were . ©

immediately operative with adverse effect on fhe rights of

_the parties complaining, independently of any. contingency

of future administrative action. Such a case was Powell v.

United States, 300 U. S. 276. By, the order of the Inter-

state Commerce Commission that‘a certain tariff filed: by a.

railroad be strieken from the Commission’s files,

‘*The Commission meant to put an end to the tariff .

in question and the service of the Seaboard according

to its terms. The tariff was a rule binding the Sea-

board to furnish transportation to and from the fort

for charges. under other tariffs applicable to and ffom

the junction. The order would eliminate that rule and —

substitute for it terms of the tariffs applicable prior

‘to its effective date. In effect the order grants theyre:

lief sought by the Central’s complaint 7 5 tp, 2).

In Federal Power Commission vy. Pacific Power ¢ Light Co.,

' 307 U. S. 156, an order of the ‘Commission refusing to_

permit a merger of power companies was- “to be an

“order” as to which the power companies were “aggrieved”

-——under Section 313(b) of the Federal Power Act. The order

was clearly the equivalent of the second category held to be

within the Urgent Deficiencies Act in Rochester Telephone

Corp. v. United States, supra, and the Court’s holding needs

no further justification than the reasoning there set forth .

(pp. 132-4).

There remain but two groups of cases cited by appellants,

~ both groups being patently distinguishable from the instant

case, in tht the orders involved met the test laid down in

' the Rochester Telephone Corp. case.

' One group ‘had to do with orders of the Interstate Com-

merce Conunission putting in_ effect’ so-called. ‘‘ rules.’

« United States vy. Baltimore & Ohio R. Co., 293 U. 8S. 454;

Chicago, RI. d P. Ry. Co. v. United States, 284 U. S.°80; .

and United States v. Berwind-White Coal.Mining Co. (As-

signed Car Cases), 274.U. S. 564. _ Whether or not the .

orders involved in these cases*may be- regarded as truly

‘legislative’ is a question discussed in Point II, A, 2, of

this brief, where it is pointed out that in each case hear-

ing was prescribed by statute, elab¢rate hearings were actu-

ally held, to which all carriers affegted- were made respon-

dents, and the proceedings were considered and tested by _

this Court on .a quasi-judicial] basis. Indeed, in the first

two of the cases the Commission’s orders were found void.

There can be no~dwubt, however, but that all three orders |

fully met the jurisdictional test of immediate legal effect,

not contingent on any future administrative action. Lam-

‘bert Run Coal Co. v. Baltimore & O. R. Co., 258 U. 8. 377,

o and Corona Coal Co. v. Southern R. Co., 960 U S. 698, aff’g

266 F. 726, not only do not help appellants’ contentions but.

constitute, additional authorities against them on the score

of the primary jurisdiction doctrine.

- The second group of cases, cited by ajiellante had to ‘do “

with orders of the Interstate Commerce.Commission, and:

_ one order of the Federal Communications Commission, pre-

scribing uniform systems of accounts. American Telephone

& Telegraph Co. v. United States, 14 F. Supp. 121, aff’d 299

U. S. 232; Kansas City S. R. Co. v. United States, 231 U.S.

“423, and Interstate Commerce Commission v: Goodrich

Transit Co., 224 U. 8S. 194. Again, whatever difference of

opinion there may be as to the legislative character of the

orders‘involved in these cases (discussed in Point II, A, 3),

a “es . . -.

- there can be none as to their immediate and final. legal effect.

_ The ayders operated directly to deprive the carriers of the

right, to maintain their existing accounting systems and to

e them to establish a particular method of accounting, .

abject to certain penalties. See also Baltimore & Ohio R.

Co. vy. Interstate Commerce Commission, 221 U.S. 612; Nor- .

folk & W. R. Co. vy. United States, 287 ©. 8. 134, aff’g 52 F.

2d. 967; antl Atlanta, Birmingham €& Coast R. Co. v. United

States, 296 U. 8.:33. .On the other hand, where the (om-

_mission’s action in this field has not reached the stage of ®.

_ immediate legal efféct, jurisdiction has been denied under

the Urgent Deficiencies Act. United States v. Atlanta, Bir-

mingham & Coast R. Co., 282 U. 8.522; Chesapeake & 0. R.

' Co. v. United States, 5 F. Supp. 7. See also State Corpora-

tion Commission x. Wichita Gas Co., 290 U. 8, 561:

There are no reported decisions under the. Urgent Defi-

ciencies Act where a court has taken jurisdiction to review

any action even remotely resembling the ‘‘regulations’’—

adojited by the order involved in this case. An examination

“Lof the some 66 orders of the Interstate Commerce Commis-

sion, reviewéd by the United States Conimerce Court dur-

ing its existence from February, 1911 té December, 1913, -

” shows no instance of any such case (see Opinions of United

States Commerce Court). Examinations of the external |

aids of statutory construction preceding the adoption of the -

Commerce Court Act (June 18, 1910), of the Urgent De-

ficiencies Act (October 22, 1913), and of the Communications :

Act of 1934 (June 19, 1934), do not support, and by neces-

sary implication completely negative, any Congressional

intent to subject administrative action of the sort repre-

sented by the Commission’s order to judicial review.

mn ies

The Order Comp Not An Order Because of Its

ey Pureip ie ve Character.

The majority and the minority opinions’ in ‘the court be--

léw agree in the view that it is no answer to an assertion

of jurisdiction under Section 402(u), that the decision chal-

lenged is ‘‘legislative’’ in character. The briéfs of both ap-

pellants predicate their contentions on the ‘assumed cor-

rectness of this view, as apparently does also the brief. for

the Gov ernment.

- This interpretation of Section 402(a) (and, i in turn, of the

Urgent Deficiencies Act) is, we submit, too broad and, as

applied to the. administrative order now in question, is erro-

neous. If applied to the purely legislative functions: of th

Federal Communications Commission under Title III of the’

Communications Act, it would introduce a radical innova-

tion in the relations between the Commission and the courts

in the regulation of radio-communication, contrary to the

intent and expectation of Cofigress and greatly extending

the-area of immediate and automatic judicial interference

_with the Commission’s determinations. While the view

claims a measure of support in occasional general expres-

sions in this Court’s past decisions, the decisions ate, ¥ we |

submit, distinguishable. - + 4

For the purpose of this discussion we shall assume that

the Commission’s order is more than a mere announcement

of future ‘administrative action, and that, through the me- -

dium of. general regulations, it authoritatively commands

or forbids certain actions on the part of broadcast station

nicensees, and-at once sets_in execution Some sanction. In

other words, the regulations may be considered on exactly

the same footing as if, instead of commencing with ‘the

words ©

s Xo. license shall bi granted toa standard eontonat

station having any contract which * * *”’ -

they commenced with the words " .,

enter to any —- which * °-*.”’

“Win Voinsee of a standard broadcast station shall

The conclusion that an order of the Commission, even *

though purely legislative, may be reviewed under Section

402(a) rests, as we shall attempt te show, on decisions ,of

this Court dealing ‘with orders of the Interstate Commerce

Commission and other public utility commissions which,

' while not purely legislative, were called sv. These decisions

applied the -test of future- operation as determinative

whereas, we submit, the correct test is whether the order

puts into effect a general rule without reference to any

particular case.

Under this latter'test (with the possible exception of one

class of cases distinguishable on other grounds) the deci-

_ .sions do not support the conclusion. Important considera-

tions of public policy argue against direct judicial interfer-

ence with purely legislative orders under Section 402(a).

Ai Analysis of decisions of this Court wherein the “future

operation” test of legislative character was applied. «

Earlier decisions of this Court, in which ddministrative :

orders have been pronounced “legislative” and have never-

theless been subjected to review, are, it.is submitted, ”

distinguishable on valid grounds.

The administrative orders to which the characterization ;

bas been.thus applied fall into three classes:

: (1} Orders prescribing rates.

(2) Orders adopting ‘‘rules”’ or ‘‘segulations”? after

quasi-judicial proceedings, including notice and hear-

ing, prescribed by statute. ¢. >

(3) Ordérs, pursuant to ‘statutory authority, de-

signed to secure information necessary for the’ per-

formance of the administrative agency’s substantive

regulatory functions, such as orders prescribing uni-.

‘18

‘form systems of accounts aud orders requiring periodic

reports.

ia]

ne,

“he principal cases*in each class will be briefly analyzed. |

(1) Orders Prescribing Rates |. 'o

The notion that the distinguishing features of ‘legisla-

. tive’’- and ‘‘judicial’’ are that the former looks to the fu- |

. ture and the latter to the past, may be traced largely, ‘al-

though not entirely, to decisions on rate regulation, ‘The

leading and most frequently 4ted case announcing this view

is Prentis v. Atlantic Coast Line Co., 211 U..S. 210, 226.

Rapid Transit & La v. Hawaii, 211 U. S. 282; City of —

Knozville v. Knoxvi ‘ater Co., 212 U. S. 1, 8; Ross Vat

Oregon, 227 U.S. 150, 163; Lowistitle & N. R. Co, v. “Gar-

rett, 231 U. S. 298, 305; Ohio Valley Water Co. v. Ben Avon

Borough, 253 U. S. 287, 289; Dayton-Goose. Creek Ry. v.—

. Amorig later cases ia this precedent are Honolulu

. United States, 263 U.S. 456, 485-6; Keller v. Potomac Elec-

tric Power Co., 261 U. S. 428, 440; Baltimore € O. R. Co. v.

United States, 964 U. S. 258, 263; Norwegian Nitrogen Prod-

ucts Co. v. United States, 288 U.S. 294, 318; State Corpora-

tion Commission of Kansas v. Wichita Gas Company, 290 _

* .U.S. 561, 569; Hill v. Martin, 296 U.S. 393, 404; Morgan v.

_ United States, 298 U.S. 468, 479; St. Joseph Stock Yards Co.

v. United States, 298 U. S. 38, 50-24 and Oklahoma Packing

Company v. Oklahome Gas & Electric Company, 309 U: S. .

4, 10. ‘See also the dissenting opinion of Mr. Justice Field

in Sinking Fund Cases, 99 U.S. 700, 761, and Memphis we

Little Rock R. R. Co. v.: ‘Southern wacko Co., 117 U. S.1

; Persuasign to this view, in turn, appears to have been ‘i in-

fluenced principally by (1)*the circumstance that the pre-

scribing of rates forthe future may be, and in the past.

frequently has been, by statute enacted by the legislature. -

or by ordinance enacted ‘by a municipal body having legis- —

lative powers, (2) the further circumstance that previously ,

the courts had entertained actjons for damages by shippers”

against carriers based on alleged unreasonabieness of rates,

and (3) decisfons of this Court construing the original In-

terstate Commerce Act as not conferring power on the In-

terstate Commerce Commission to prescribe rates. The sole

prior decisions of this Court cited in support of the view _.

in Prentis vy. Atlantic. Coast Line Co. (at p. 226) fall within

these descriptions: Interstate Commerce Commission v.

Cincinnati, N. O. & T. P, R. Co.67 U.S. 479, 499, 500,505 ;

San Diego Land:¢ Town Co. v. Jasper, 189 U.S. 439.

. 1. The circumstance that historically rates have fre-

quently been prescribed by statutes or ordinances efiacted .

by truly legislative bodies is not determinative. Such en-

actments were usualfy of a truly legislative character, gen-

eral in terms, without reference to any particular case, and

affecting . the rights of individuals in the abstract. Munn °

v. Illinois, 94 U. S. 113, 132-4; Peik et-al. v..C.d N. W: R.

Co., 94 U. S. 164, and associated cases ; Baltimove & Ohio R.

- Co. v. Maryland, 88 U.S. 456, 471; Dow v: Beidelman, 125

U.S. 680; Chicago &é G.T.R.Co.'y. Wellman, 143 U. S. 339,

344; and St. Louis & San Francisco R. Co. v. Gill, 156-U. S.

649. Even in the exceptional cases where enactments by

legislative bodies have operated directly and concretely

upon individuals, the decisions of this Court can be suffi-

ciently justified on historical grounds, as well as on the well-

_ settled constitutional principle that the Federal, Constitu-

‘tion does not require the observance of ‘the separation-of-

powers doctrine by the States. Instances of the perform-

- ance by legislative bodies of what would seem to’be judi¢ial

» functions go back to the enactments involved in such cases

as Calder v. Bull, 3 Dall. 386, and Maynard v. Hill, 125 U. 8. |

190. That observance of the separation-of-powers doctrine ~

is not required of the States was recognized in Prentis v. ~

_ Atantie Coast Line, at p. 225, and, of course, in many other

cases.

While continuing to characterize the prescribing of rates

as ‘‘legislative,’’- this Court had, considerably prior to

Prentis v. Atlantic Coast Line, actually applied the criteria

b 20

of judicial proceedings to rate-making by administrative ®

tribunals acting under authority: delegated by the legisla-

tures. -Chicago,.Milwaukee & St. Paul R. Co. v. Minnesota,

134 U. S. 418; Reagan v. Farmers Loan & Trust’Co., 154

UJ. S. 362.. In cases too numerous to cite, all the procedural

demands of due process have been held applicable to rate-

making by such tribunals, including prerequisite notice and

hearing, findings based on substantial eyidence and con-

finéd to evidence contained ‘in the record, the making of .

. basic findings, and various others. See cases cited in the

dissenting opinion of Mr. Justice Brandeis in St. Joseph

_Stock Yards Co. v. United States, 298 U. S: 38, at pp. 74-5.

: This attitude toward the prescribing of rates is to be con-

trasted with decisions of this Court holding, in effect, that

the procedural demands of due process in quasi-judicial

proceedings are not applicable to the performance of truly

os e. functions by administrative agencies. » Butt field

v. Stranahan, 192 U.S. 470; United States v. Grimaud, 220

U. S. 506; Bi-Metallic Investment Co. v. State Board of

» Equalization, 239 U. S. 441; Norwegian Nitrogen Products

Co. v. United States, 288 U. S. 294; Pacific. States Box and

Basket Co. v. White, 296 U. S. 176; United States v.. Bush &

‘Co., 310 U.S. "371; Opp Cotton Mils-{0c:v. ASsinitratr,

312 U.S. 126.

Acceptance of the test of future against past operation

has not been without dissent. In _Preptis v.. Atlantic Coast

Line Co., Fuller, C.J.,ina dissenting opinion, after express-

ing the opinion that the Virginia State Corporation Com-

mission (which had made the order fixing passenger rates,

sought to be enjoined by the carrier) was a judicial court,

stated (at p.. a3!) Bie i. °

‘**T cannot see why the reasonableness and justice of

* - a rate may not be judicially inquired into and judicial],

determined at the time of the fixing of the iss as swell

“as afterwards. fale

Harlan, J.,: ‘concurring in the, general observations of

the Chief Justice, wen®further and said (at p. 238),

7 .

_ os a ~ te aie «

ae STA PIES a Ses ICR Risa tims sind. sitet titeAotina att tis bitline tonthh ‘eonkctnenonapncanit

- ° ee

“In my . judgment, ‘the Virgiota: State Corporation

Commission i is, in-every substantial sense, a court. ae

An earlier instance ot somewhat the’ same debate 1 is Mem-

phis and Little Rock R. R. Co. v. Southern Express Co., 117

U.S. 1, in which this Court reversed a decree which, inter:

alia, had required the defendant railroad company to carry

_ the plaintiff’s express matter ‘‘at a just and reasonable

rate of compensation.’’ The niajority (through Waite, C. J.)

said (at p. 29), .

‘‘The regulation of matters of this kind is legislative

* in its character, not Judicial. ed

Miller, J., dissenting, stated (at p. 33),.

. “That the legislature may, in proper case, fix the

rule or rate of compensation, I do not deny. But unti! |

this is done the court must decide it when it becomes

matter of controversy.’ a :

Field, J ., joined i in this peer

The fact that rate-prescribing orders of the Interstate -

Commerce Commission, and of the various state public util-

_ ity commissions, -have usually been directed against one or

more named individuals does not appear to have been urged ;

as making the orders ‘‘judicial’’ and not truly “‘legisla-

tive’? in character. This may be explained by the cireum-

stance that, in view of the usual statutory procedural pro-

visions and.this Court’s rulings requiring compliance’ with

procedural due process, no issue turned on the characteriza- ~

tions, and there was no point. in pressing the contention.

The fallacy in the test announced’in Pren..s v. Atlantic

Coast Line Co., supra, has however, been the subject of fre-

quer comment. Freund, in Administrative Powers over

Persons and Property, 1928, states (at p. 15):

“The line between powers operative from-case to |

case and powers operative by way of general rule is of

course a fluid one, since ‘general’ and ‘particular’ are

‘ mission to be ‘legislative’ would seem to

which legislative bodies have been in the habit of exereising.”’

relative terms. Rate-making illustrates the grada-

_ tions :’’ : , ; \

+ After enumerating six’ gradations, he proceeds : .

“The U.S. Supreme Court has said that rate-making

‘is a legislative function €211 U. 8. 227), having prob--

ably in mind the rates from No.3 on. But for prac-

etical purposes, i.e., legislative treatment ahd adminis-

trative procedure, | pr _— _ No. 6 is truly legisla-

tive.”

Similarly, Dickinson, in Administrative Justice and the

Supremacy of the Law, states: - ,

= -

«Thus, for example, the act of a public- utilities com-

mission in fixing a rate has been held to be ‘legislative’

for constitutional purposes.” From one aspect of juris-

tic analysis, legislative jt no doubt is—that is, from the

aspect of its future operation and its applivability to

“| a whole class of cases.. But.the wfit of mandamus is

future in its operation, and yet is not for that reason

regarded as. ive *:7.9,"" m

2. The further cireuuiktance ‘that the courts had enter

- tained. actions for damages by shippers against carriers.

_. based on unreasonableness of. rates, and had not entertained. :

-». actions “seeking future relief, is likewise not determinative. °

‘As pointed out by Bradley, J., in his dissenting opinion in., -

Chicd$o, M. & St. P. R. Co. v..Minnesota, 134 Us S. 418, at

_ page 462, oe

* <“When "the rates are:not t'thus determined, (i.e., * xed

by the Legislature), they are left to the discretion: of

’ the company, subject to, the express or implied condi-

tion that they shall be reasonable; pia oe 80

5 To the. above ‘is- ‘appended a footnote which, after efting Jnter-

state Commerce Commission v. Cincinnati, N. O. & T. P. R. Co., 167

U. 8. 479, and Prentis v. Atlantic Coast Line Co., supra, reads in 9

part: ‘‘One reason why our courts have o~ rate-fixing ‘by. a com- —

because it is a function

’ - ;

a lege , to

° F me 3 23 ‘ a” 3

declared by statute ; implied by. the comm: n law, when

the statute is silent; and the cominon law has effect by

virtue of. the legislative A ,

| ma Proipin damages for the exaction of an unreasonable

rat

the court necessarily had first to’ ascertain what'would _

constitute reasonable rate for the service rendered. That .

the available remedy happened to. be limittd to damages

- and did not extend to injunction against future continuance

‘of the unreasonable rate (or of any rate in excess'of that

determined’to be reasonable), or to mandamus ‘command-,

ing the establishment for the future of the rate found rea- -

sonable, was a matter of historical accident and legislative

determination and should not affect the proper classification

of the proceeding as ‘‘judicial”’ “if the legislature should

| chgose to make the latter remedies also available. ‘In effect,

this is what the Congress and the legislatures of the sev- -

veral States have done; by. providing the equivalent of in--

__ junction and mandanius, namely, cease-and-desist orders

against unreasonable rates and orders. prescribing rates for

‘the future. ° it aS

3. The ‘expressions ‘found in this ies decisions con-

struing the original Interstate Commeree Act, adopting the

test of future as against past operation, were unnecessary

to the conclusions reached. The decisions*were amply

justified on the basis-of the statutory language involved,

under generally accepted principles of statutory eonstrde.

tion. Cincinnati, N. O. & T. ng R. Co. v. Interstate Com- —

merce Commission, 162 U. 8S. 184; Interstate Commerce

- Commiss aan teense i 0. & je R. Co., 167 U. S.

479. | /

(2) Orders Prescribing Votive Acts or Koiliion

The test of future as against past operation has been ex-

.. tended-by this Court from rate-making orders to,a number

of other kinds of public utility commission orders, future ,

in operation. For example, in Lake Erie & Western R. Co.

v.. State Prblic Utilities Comitission e Viaisete, 249 U. S.

422, on —_— by igs owner of a grain elevator and coal

ilroad cémpany ‘to restore ‘a side track... This order

cterized as ‘‘legislative in its nature’’ (p. 424; see

‘eases ther@vited). A similar holding was made in Grand

Trunk Western R. Co. v. Railroad Commission of Indiana,

_ 221 U. 8. 400, with respect to an order of the state railroad

commission directing the, installation and use of an inter-

locking plant at thé crossing of two railroads in that state,

and apportioning oe them the expense of executing

the order. But in Baltimore & Ohio R: Co. v. United States,

264 U.S. 258, however, involving an order of the Interstate

Commerce Commission permitting a railroad teacquire cer-

tain terminal railroads, this Court, through Brandeis, J.,

said (at page 263), - ¢ }

‘Whether this onder ean be described properly as.

. legislative may be doubted. It is clear that legislative

character alone would not’ preclude judicial review.

te orders are clearly legislative. Prentis v. Atlantic,

Coast Line Co., 211 U. 'S. 210, 226.”’ :

This was in response to a contention, rejected. by the Court,

: ‘that this order is not one of those subject to judicial

review; and that, if subject to review, it cannot be held

* void merely because unsupported by evidence’’ Ap.

~ 263). |

See also Southern R. Co. v.V irginia; 290 U.S. 190, 197.

Included’in the orders reviewéd under the Urgent Defi-

ciencies Act have been some purporting to adopt ‘‘rules’’

of more general character future in operation. ~Except,

however, for cases dealing with orders requiring periodic

reports: or prescribing uniform accounting systems, which

are discussed separa ely below, the ‘‘rules’’ were subject to

a statutory prerequjite of notice an? hearing and were con-

sidered by this Cgurt on a quasi-judicial basis, somewhat in

a * *

ee Oe Le Oe CUE LEE IE SEA OTE OEE

. x ¢ 7} : . ,

7 e = Py ,

. = °

‘the same fashion as it has considered rate-making.orders.

In-effect, the ‘‘rules’’ were affirmative orders directed to a |

- number of persons, all of whom were, respondents in the

proceeding before the &Mmmission. The mere fact that such ©

orders have been entitled, or have been issued in the f orm of,

“rales”? or ‘‘regulations’’ would not, of course, confer: on

them a legislative character not otherwise possessed. -

In United States y. Berwind-W hite Coal Mining Co., et al.,

‘(Assigned Car Cases); 274 U.S. 564, suit had been brought

under the Urgent Deficiencies Act ‘to enjoin and annul an

order of the Interstate Commerce Commission prescribing,

. for all railroads subject to its jurisdiction, an ‘“assigned car

rule”’ governing the distribution of cars among bituminous

coal mines in times of car shortage. —The order was ‘made .

under paragraph (14) of Section 1, of the ‘Transportation

Act, ‘reading in part— ;

‘“‘The Commission may, after hearing, on, ) complaint

or upon its own initiative without co ‘pla} t, establish

reasonable rules, regulations, and practices with re-

_ spect to car service by carriers by —_— subject to

: ae ee ae (p. 476). :

The Commission initiated the proceeding, and made every

; carrier subject to its jurisdiction a respondent. Many other

- persons became parties by intervention. After an extended

hearing, the Commission concluded that certain existing

practices and other existing regulations of carriers resulted

* jn unjust discrimination and were unreasonable. It ordered |

that the carriers cease and desist from such practices and

prescribed the unifgrm rule in question (p. 572). The per-.

sons bringing suit-under the Urgent Deficiencies Act had all

béen parties to the proceeding —— the Commission (p..

’ 567).

This Court, through Brandeis, ‘J., stated: ‘The order

here attacked is wholly legislative’’ (p. 574). It. rejected *

the contention that the Commission did not have authority

to prohibit the use of assigned cars by a general rule and,

as a matter of statutory construction, held that it did have

\ =~

such authority. it went on, however; to apply the usual

- tests-of procedural due process, iinding ‘‘ample evidence to __

support the Commissidn’s ~findings,’’ with the following .

qualification : =

“In the case ‘at bar, the function exercised by the ie,

mission is wholly gislative. ‘Its authority to legislate

_ is limited to estpblishing a reasonable rule; But in es-

tablishing a rfile of general application, it is not a con-

dition of its validity that there be adduced evidence of

- its appropriateness in respect to every-railrpad to which-

it will be applica -In this connettion, the Commis-

__sion, like other ! tors, may reason f rom the particu-

lar to the general” (p. 583).

It is to be noticed that the opinion tacitly agrees that the

evidence supporting the findings must be within the record,

thus distinguishing the proceeding from the purely legisla-

tive proceeding involved in Norwegian Ni th Products

Co. v. United States, 288 U. 8. 294, era statute which

likewise required a hearing: °

In Chicago, R. I. d& P. R. Co. v. United States, 284 U. s. 80,

suit had been brought under the Urgent Defictencies Act to

set aside ceptgin rules prescribed by the Interstate Com-

merce Commfssion with respect to car-hire settlements. The

Commission’s order had been’made under paragraph (14).

of Section 1 of the Transportation Act (p. 91). The Com-:

mission had instituted the proceeding; had made all com-

‘mon earriers by railroad in the United States parties res

spondent; ‘had held elaborate hearings at which a large

‘amount of testimony was taken; and had made two reports.

_ This Court reversed a decree of the lower%ourt dismissing

the suit because the Commission’s order was ‘‘in flat oppo- —

‘ sition to’”’ one of the findings and resulted in a taking of

the use of property without.compensation. Stone, J., wrote

a dissenting opinion, inowhich Hecimes, J., and Brandeis, J.,

joined. While the dissenting opinion’expressed the view

that the judgment of the lower court. should be affirmed, it.

recognized the applicability of tue usual tests of procedural’

due process (p. 117). ae

aa 5, 7 dine Oa : |

__ ~~ In United States v. Baltimore & 0. R. Co., “293 U. S. 454,

suit had been brought-under the Urgent Deficiencies Act to

set aside an order.entered by the Interstate Commerce Com- _

mission under the Boiler Inspection Act. . proceeding

had been initiated on complaint of two Brot rhoods, pray-

_ ing that the Commission prescribe rules requiring that. all

i steam locomotives be equipped with power: reverse. gear or

_ other devices, etc. Practically all the railroads of the United

- States’ were made respondents, An extensive hearing was:

held before an examiner, followed by the hearing of elabo- .

rate exceptions before a Division of the Commissign. Re-

argument before the whole Commission was denied (pp. 457-

8). Section 5 of the original Boiler Inspection Act er

in part—

soo 8 ©: after hearing and iecciahed the Interstate

Commeree ‘Commission, such rules and instructions,

_ , with such modifications as the commission requires,

_ shall-becomeé obligatory upon sueh carrier’’ (p. 0).

. After finding that the Commission, ‘‘was granted the pow er,

not only of disapproving proposed rules, but also of requir-

ing modifications of those in force’? {p. 463), this Court,

through Brandeis, J., held the Commission’s order void be-

cause of the complete absence of the basi¢ or essential find- _

ings required to support it (pp. 462-4). Section 14(1) of: ..

the Interstate Commerce Act

~— “does not remove the necessity of, making, where or-

ders“aré subject to judicial review, ‘quasi- jurisdictional

findings essential to their constitutional or /Atatutory

validity”’ (p. 465).

(3) Orders Designed to Secure Information.

. There remain to be discussed the ue pa Court

involving Otdérs requiring the filing of periodic reports, or

rescribing-nniform accounting systems. _ Such orders, we

»P om

believe, furnish the only instances where the. administrativ

action held to constitute an ‘‘order’’ might, with some show

of reason, be characterized as truly legislative, since the ac-

98 .

tion on Some (but not all) occasions was bintedsed in the as

form of ‘‘regulations’’ and in some : (bat sat all) was not | :

preceded _ by quasi-judicial _proceedings. - ts,

These cases may, we submit, be distinguished on ‘the

grounds (1) that the administrative action in each case was

of an ancillary type, designed to‘ secure information to en-

able the agency to perform its substantive regulatory func-

tions, (2) that, while the action took legislative form, only a

limited and definitely known number of persons: were sub-

ject to its requirements, and (3) that, in any event, the-

#8. scope of judicial review was ultimately so narrowly conftited-——

as to leave little | ground for interference with the adminis-

trativ e action: * -

_In a sense, this line of cases goes back to Interstate Com-

_ merce Commission v. Brimson, 154 U, S. 447, which was the

only precedent cited on the question by counsel for the Com-

mission in Baltimore & Ohio R.,Co. v. Interstate Commerce

Commision, 221 U. 8. 612 (see 55 L. ed. p. 880), and was”

again cited in the brief filed for the United States in Inter-

state Commierce Commission v. Goodrich, Transit Co., 224

U. S. 194 (see IZ ed. p..731). In the Brimson case, this.

Court reversed a judgnient of the lower court dismissing a ,

petition filed by the Commission invoking the aid of the

court in requiring the attendance and testimony of witnesses

and the. production of documents, books and papers, in a

‘ease before the Commission. Harriman v. Interstate Com-

merce Commission, 211 U. S. 407, 420-1, as later summar-

ized in the Goodtich case, through Day, J.. (at p. 212),

‘‘dealt with the authority of the Commission to compel

the attendance and testimony of witnesses in cases

where complaints had not been filed. The extent ta

which the Commission might require systems of ac- .—

counting and reports of corporations subject to the act

was expressly left*open in the opinion of the court.’’

In Naliiiies & Ohio, ‘o. v. Interstate Commerce Com- . -

mission, gupra, the C ission’s order requiring monthly

reports was es on the ground (Heghes, J. ),

. : ; |

2 pang: )

ere re

ces able the Commi gsion properly to p serform its

duty to enforce the law, ee is necessary that. it should

. vhave full information as to’’ (p. 622) :

the subject-matter to be regulated. —

The same justification was voiced in the Goodrich case,

‘supra, in which orders of the Commission prescribing a .

‘uniform system of accounting and bookkeeping for carriers

by water upon the Great Lakes, and calling for annua} re.

ports ena cepa asi dicte upheld (Dey; J.):°

————

“Tf: the Commission is to suctessfully perform its .

' duties in respect to reasonable rates, undue discrimina--

tions, and favoritism, it must be informed as to the ©

business of the-carriers by a system:of accounting * * *:

The object * * * is * * * to be informed concerning the

business methods of the corporations subject to the act,

that it may properly regulate sgch matters as are: really

within .its jurisdiction, Further, the requiring of in-

formation. concerning a business is not regulation’ of

that business”’ (p. 211). °

This reasoning was followed in Kansas City 8. R. Co., v.

United States, 231 U. S. 423 (see pp.-440, 449). This case

came before this Court from a decree of the Commerce

Court dismissing a petition. to enjoin the enforcement -

_of the Commission’s regulations relative to: the uniform .

accounting and bookkeeping system prescribed for \inter-.’

state railway carriers. The decree was affirmed. _

In United States v. Atlanta, Birmingham €é Coast R: Co.,

982 U. S. 522, it was held that a passage in a report of the

Commission, which specified the,.maximum amount that a

carrier might in¢lude in its accounts as representing an in--,

‘vestment ip a newly: acquired road, and which notified the

company that it would be expected to adjust its accounts

accordingly, did not amount to an ‘‘order’’ under the Urgent

Deficiencies Act. In an earlier stage; the Commission’s |

action hed been set aside because taken without hearing. 3

“Atlanta, Birmingham € Coast R. Co. v. United States, 28 F..

2d. - 885. A sotcsie., was had thereafter, followed’ by the

g°.. of : a

report but no fein order. The controveray, came up.

‘again in Atlanta, Birmingham & Coast R. Co. v. United

’ States, 296 U.S. 33, the Commission having in the mean-

time made an order. This Court affirmed a decree dismiss-

ing the suit, saving: Sane na: Bae °

- “Pie Court: is without power to weigh “the evidence

* * *. The report of the. Commission * * * makes it .

clear that*there was ample evidence to suppert its find- -

ing and order’’ (p. 38). : )

Norfolk & W. R. Co. v. United States, 287 U. S. 134,

affirmed a decree of a statutory three-judge court dismissing

a petition filed under the Urgent Deficiencies Act (52 F.2d. —

967). The petition sought to enjoin enforcement of, ‘‘an

order pursuant to Section 20 .of the Interstate Commerce

Act, as amended, requiring the Norfolk & Western Railway

‘ Cor er atts to carry: certain coal mining: properties in its ac-

~ cofints as not used in the’ service: of transportation’’ (p.

137).. The order resulted. from a: proceeding which- com-

-, menced with a request by fhe railroad company, followed ‘by

an ex parte order, and extensive froget during, which

the ex parte ordex was

stated. (through Robefts, Z. ): A

‘‘One of the prime purposes of § 20 is and has

3. the: adoption of the Act of 1887, that the carriers’ ac-

> .° . eounts should be uniform, so as ’to afford the Commis-

‘sion and the public a basis for comparison. of their '

respective operations’’ (p. 140). ;

‘To a contention that “by virtue of the Commission's man-

date an unfair and improper rate base is fixed,” _ Court

replied:

ie . But this is to ignore the fact that the sil is one

\ '~ touching accounting’ merely; that before any rate base -

can be ascertained or any basis of recapture determined . *

the carrier will be entitled to a full hearing as to. what

| property shall be included; and_not until the Commis-

sion excludes the assets in question from the calculation

‘may the carrier assert the infliction of injury to its .

rights, of property. A recapture proceedings now

pending against the appellant, whereitt | full oppo tunity

will be afforded to esent any claims with regard to -

the inclusion jn whole or in part of the mining proper-

ties in question.

_ “We are not conv ince by the astertion that the mec-

essary ‘effect of classifying the mines as non-carrier

propert ‘s is to exclude r ém from consideration as

capital in the issuance of securities. We are not, how-

- ever, required now to decide this question, for the mere: —

accounting classification can conclude neither the Com-

mission-nor the appellant upon the hearing of an appli- |

cation under § 20a (2)”’ (pp. 141- 2).

To a contention that procedural due Process was lacking, —

this Court replied:

“The record demonstrates that, an: + nlliinal. hearing

was afforded and due weight given to the: ‘evidence’ ™

(p. 142). |

'. See the opinion of the court. below, 52 F. 2d., at Wek 970.

A somewhat similar case’ was Chesapeake & O. R. Co. v.

United States, 5 F. Supp: 7, in which a statutory three: |. -

judge court dismissed a bill of complaint brought under the.

, Urgent Deficiencies Act. While a motion to dismiss the bill

for. lack of jurisdiction was overruled (py 9), the court

applied, in part at least, the criteria of precedural due

process (rn 14). An extérisive hearing had been held before

‘the Comission, followed by a report, a reopening for

further hearing, and an affirmance of the report (pp. 8-9).

In State Corporation Commission v. Wichita Gas Co., 290

U. S. 561, this Court_had before it a decree of the District

Court i in favor of plaintiffs in suits to enjoin the enforce-

ment of certain orders of the state publie service commis- —

sion. One of the orders |

“‘merely directs the distributing companies not to in-

clude in their operating expense accounts more than

- 30 cents per thousand cubic feet for gas furnished by

the. pipe line cofnpany and not to consider any pay-"

- &

‘te ci :

: .

art S:

; : 32

e.™ -

7g ¢ :

ments in excess of, that price in fixing : a \ rate for domes-

tic consumefs*’ (p. 568). _ ; )

This ourt vacated the decree ees: as, it enjoined” en-

. forcement of the prov isions of that order, re in —

;

(through Butlet,. J.}.3-

’ “‘But the commission’s proceedings are to < caneed

as having been taken 'to secure information later to be

used for the ascertainmeyt of reasonableness of rates.

The order: is ther legislative’ in chatacter. The

commission’s decisions upon the matters. covered: by it

cannot be res adjudicata when challenged in a confis--—

cation case or other suit involving their validity or the

- validity of any rate depending upon them”’ (p. 569).

United States, 299 U.S. 232; affirming a decree of a statutory

three-judge court dismigsiag a suit brought under. Section

402(a) of the Communications Act and the Urgent Defi-

cienciés Act .(14 F. Supp. 221). The suit sought to: enjoin

- the enforcement of an order of the Federal Communications

Commissi6n prescribing a uniform system of ‘accounts for — .

telephone companies. « No question appears to have been

raised either. in this Court or in the court below. as to

- whether ¢he. Commission’ s determination was an ‘‘order”’:

within the meaning of thé gtatutes. There had been pro-.

ceedings first before the Interstate Commerce Commission

and later before the Federal Communications Commission,

including: hearings (14 F. Supp., at p. 124). The lower

.. gourt went considerably further than had afiy~previous

- eourt in this kind of case and, in hoiding that the order wes

- not void for lack of a report stating thé conclusions:

findings of fact by the Commission, pronounced the Com. .

mission’s action as ‘‘legislative,’’ and not requiring find-

ings. The Commission was. authorized to act ‘‘in its dis-

eretion’’ (p. 124). On appeal,:this Court’s opinion (Car-

dézo, J.), did not deal with this aspect of the case and con-

fined itself to application of the principle that ,:

This series of cases. ‘ends with. merican Tel. €:Tel. Co. v. .

iat has been ordered must appear to be-‘so entirely -

-_,at-odds'with fundamental principles of correct account-

“ing’ * * * as-to be the expression of a whim rather than

an exercise of jydgment *.* *. Then too, in gau

rationality, regard must steadily be had to the ends that

a uniform system of accounts is 3 intended. to promote’’

(pp. 236-7). :

_. This was followed oF a quotation a the Goodrich case,

. supra, to the effect.that the object is to be informed so ‘‘that

it (the Commission) may properly regulate antag matters as

‘are really within its jurisdiction’’ (p. 237). -

_&B. Authorities Supporting the “General Rule” Test of -

Legislative Character. .

“In Douglas v. Noble, 261 U. S. 165, in sustaining “the ;

validity of a state dental practice act,: this Court recognized

another. test as to. what is ‘‘legislative.’’ Discussing the

'_ statute’s provisions with reference to an applicant’s quali-

fications, this: Court-stated (through Brandeis; J.) :

‘“'Phe decision of that’ fact i involves ordinarily the de-' —

. termination. of two subsidiary questions of fact. The

first; what the knowledge and skill is which fits one to -

practice the profession. The second, whether the ap-

plicantpossesses that knowledge and skill. The latter

. finding is necessarily an’ individual one. The former

is ordinarily one of general application. Hence, it can |

- be-embodied in rules. The legislature itself may make

this finding of the facts of general application, and by

embodying it in the statute make it law” (p. 169).

ee also. Highland Forms Dairy, Inc. v. dues: 16 F. Supp. |

575, 586-7, affirmed, 300 U. S. .608; dissenting opinion of _.

Cardozo, J., in Panama Refining Co. v. Ryan, 293 U.S. 388,

448; State ex rel. State Board of Milk Control v. Newark:

Milk Co., 118 N. J. Eq. 504, 179°A. 116; United States v.

Ripley, 7 Pet. 28, _ :

{

_ Dickinson, in Administrative Justice and .the Suptemacy

af the Law, 1927, formulates the criterion as follows: ”

**The essential difference between legislaficn and ad-

judication is hot that one looks to the future and the |

other to the past—there is nothing; inherent in the -

judicial process which requires thatit should look

wholly. backward. Nor may the term adjudication

properly be limited to cases of controversy between pri-

vate individuals with an agency of gevernment inter-

vening as arbiter—such a definition would deprive every: .

‘© eriminal trial of judicial character. What distinguishes

_ -‘ legislation from adjudiéation, is that the former affects _

the. rights of individuals in the abstract and “must be

— ina further proceeding before the legal position

of any/particular 2 sol pera, “eclypheeonr we touched by ..

-it; while adjudication operetes concretely upon indi- -

viduals in their individual capacity’’ (p: 20-1).

“Confusion seems to. have-crept into most of the at-

tempts of the courts.to define legislative and judicial

power from a failure to ‘keep separate two different .

distinctions: (1) the distinction between present and |

. future operation; and (2) the distinction between the

announcement of a general rule without reference to

-any particular case, and the application, or elaboration

of a rule to fit-a specific case’’ (footnote 36, p. 21). °

See also Freund, Administrative Powers over Persans and

Property, 1928, pp. 14-5; Goodnow, Principles of the Ad-

ministrative Law of the United States, -1905, pp. 28-9;

Comer, Legislative Functions and National Administrative

Authorities, 1927, pp. 27-8 (but see p. 47); Port, Admiinis-

trative Law, 1929, Chap. HI, pp. 88-119; Blachly and. Oat-

man, Administrative’ Legislation and Adjudication, 1934, |

p. 1; Report of Committee on ‘Ministers’ Powers, 1932, pp.

18-20; Report of the President’s Committee on Administra-

. tive.Management, Part II, The Exercise. of Rule-Making:—

Power (by Janies Hart), p. 319;. Report of Attorney Gen-

eral’s Committee on Administrative Procedure (S.. Doc. 8,

70th Cgng., Ist Sess. 119)., pp. 97 et seq.:

oe ie

cea ace Ts La shadcae : hee

-* - "35 ; . \

The moment this test is applied and an ‘‘oraer’’-is found

to: be truly legislative, entirely different notions of proce-

dure come into play, aid the relationship between the legis-

lating agency and the courts undergoes a-fundamental ©

~ change.” The legislature may, if it chooses, subject the.

process to quasi-judicial}, procedure, but it has done so only ©

rarely. When such procedure has not been — it

has been held unnecessary.

‘Where a rule.of conduct applies to more than a few

people, it is impracticable that everyone should have a

direct voice in its adoption. The Constitution does not

require , all public acts to be done in town meeting or

an assembly of the whole. * * * There must be a limit to

go on.’’ Holmes, J., in Bi-Metallic Investment Co.-v.-

State Board, of Equalization, 239, U.S. 441, 445.

See also Buftfield v. Stranahan, 192 U. S. 470; Red “C’?.

Oil Manufacturing Co. v. Board of Agriculture of North :

Carolina, 222 -U. S. 380, 394-5; Opp.Cotton Mills, Inc., Vv.

*B Administrator, : 312.U. S..126, 145, 152. :

_ Even when a hearing procedure has been prescribed, it

‘haa frequently ‘been interpreted as not implying the quasi-

ay judicial. model or requiring procedural due process. Nor-

_. wegian Nitrogen Products Co. v. United States, 288 U. S.

294; Pacific States Box and Basket Co. v. White, 296 U.S.

176; United States v. Bush & Co., 310 U.- S. 371, 379-80;

compare Prentis vy. Atlantic.Coast a Co., supra,. at p.

227. = 2

Appellate revie y of purely legislative (and partly legisla.

tive) determinations has been deemed not within the prov-

ince of constitutional courts. Keller v. Potomac Electric —

Power ,Co., 261 U.S. 428; Federal Radio Commission v. . -

General Electric Company, 281 U.S. 464. Cf. Federal Com-

- munications Commission v. Pottsville Broadcasting Co., 309

U.S. 134. The scope of judicial control over such determin-

ations, in the few cases in which it has been exercised,

individual argument i in such matters if government is to °

= Soros e

nee

has been confined to diate: narrow r limits, apd the area

of administrative finality. stops just short of being exclusive.

‘*The Court below was clearly right when it observed

that 3 the complaint alleged, the standard,of safety

fixed by the board .was.unreasonably high, or the

' method of testing oil unsatisfactory, and not, such as |

__ Was in general use, or the regulations in other respects

- + were unjust or oppressive, it-should seek relief by ap- |

plying to the board of agriculture to mgdify them. A

law cannot be declared invalid because, in the opinion i

’ of the court, i rit does not accord with ‘sound policy..” The

appeal for redress in such case must be to the lawmak-

- . . ing power’’ (White, C, J., in Red ‘‘C’’ Oil Mfg. Co. -v. *

Board of Agriculture, 222 U. S. 380, 394-5). . aon

a also Butt field v. renahan: 192. U.S. 470, 497 ; Houston :

v. St. Louis Independent Packing Co., 249 U.S. by + 484,487; |

P. FP: Peterson, Baking Co. v: Bryan,-290 U. S. 570, 575-6;. -

Mississippi Barge Tine Co. v. vee f States, 292.17. S. 282.

“©. The Word “Order” Should Not Be Extended to Include

: Purely: Legislative. Determinations. .

‘ We recognize that governmental machinery should be at

* hand to provide the necessary check on adminjstrative. rule-

making of a purely legislative character to keep it within

constitutional and statutory limitations:, The present ques-

tion, however, is whether the Urgent Deficiencies Act and

Section 402(a) of the Communications Act do, or were in-

tended to, provide this check.

We submit that the scope of the term ‘‘order’’ was

. intended .to:be, and should be, confined to (a) final- orders

_ entered as the result of proceedings ‘conforming to the

quasi-judicial model, prescribed by statute (including notice, *

hearing, and findings based on substantial evidence within

- the record), and (b) final orders, whether particular or |

’ general in form, designed to secure information ecessary

to the performance . of the dare recite tribunal’s -sub;

stantive ‘regulateiy functions: -The first of the foregoing

_ may be extended to, but should not go beyond, final orders

legislative i in nature or form, which are subject to a statu-.

tory prerequisite .of quasi-judicial procedure.

In, support of this construction are following consid.

-erations :

. The térm order”, while admittedly employed in

cm tion with a confusing variety of administrative

ns, has not ordinarily been used 40 denote the de

tevtainetiall of legislatures in enacting statutes, and

is most frequently and naturally employed to denote a

command or prohibition directed to individuals. °

2. As developed above, the duslilions of this court

_ over a period of 55 years since the establishment of the

. Interstate Commerce Commission have only rarely, | ae

at all, extended the scope of direct attack by injunction

to legislative determinations. :

3, Except for Title ITI of the Communications Act,

the statutes: to which the Urgent Deficiencies Act has

been made to apply, have contained very few delega-

‘ tions of power‘to make purely legislative detegmina-

' tions; there has uSually been a statutory requirement

of quasi-judicial pyocedure.

' 4. Without prerequisite hearing ma a record con-

taining the’evidence 6n which the determination was

based, it is difficult to foresee the éxtent to which the

parties will be permitted, or the courts will require, the

’ production of evidence as the basis for ascertaining

whether -constitutional or statutory lifitations have

been .ex ed, arid even then it will be difficult for any -

administrative agency to*bring into court . evidence ’

embodying ‘the informed experience, expertness. arid

investigation, on which its regulations may be

5. Each legislative determination wiil be automatic-

ally subject to possible review, accompanitd by tempo-

. Se . ; “-~ '

rary injunction, in courts anywhere and everywhere

over the entire country, at the suit of persons not parties

to any proceeding before the Commission (there having

been none), with consequent likelihood of conflicting

results and hampering delays. j ;

6. Many persons may be. encouraged to file petitions

with the administrative tribunal, seeking repeal, modi-

fication, or pomerran +h regulations; it, would be only -

-*logical that the tribuffal’s ‘‘ordeps”’ on such petitions

‘should likewise’ be brought. within the scope- of: the

Urgent Deficiencies Act and Section 402( a) \raising

difficult questions as to the record to be brought. before

' the court and the scope of review.

_ 7. Presumably the court’s Biatston on review of such -

a regulation at the suit of one party will not stand in the

_ way of an attack on the: regulation by another. party

} when it is sought to be applied to him in 4 later proceed-

ing of a judicial or quasi-judicial character.

8. Rule-making, that is, the reduction of aisbiiie to

written, published formulations (as distinguished from

the case-to-case method of making law) should-Mpt be

discouraged by urnecessary obstacles. The process fur-

nishes safeguards of its own, due to thé public an- -

* nouncement of a genefal rule to be uniformly applied.

Other considefations may suggest themselves an the fore-

. going are sufficiept to give pause.

- Opinions differ as to the desirability, the méthed. the

proger form, and the eXtent of review (whet adminis- ©

_ trative or.judicial) of purely legislative determinations by

appellate tribunals. It may rightly be regarded as one of

the most difficult problems of political science under our

scheme of government. The problems are not solely of

securing the needed checks on excess of power, but have also

to do with uniformity, consistency with the legislative .

determinations of other administrative and executive agen-

a naa -

cies, and national policy, not to mention. good draftsman-

ship, proper publicity, and accessibility of rales to those

affected. ‘ :

One of the chief grounds of criticism of the so-called.

Walter-Logan Bill (H. R. 6324, 76th Cong.), which passed®

both Houses. of Congréss but was: vetoed by the Presidertt

early in January, 1941, was that it provided for substan-

tially the same character and measure of review of putely

' legislative determination. as is now claimed for the Urgent

Deficigneies Act. Hearings before Subcommittee of House

Committee on the Judiciary, on H. R. 4236, H. R. 6198, and

H. R. 6324, Mar. 17 and Apr. 5, 1939, 76th Cong., 1st Sess. .

The review provided by the bill was limited as follows (Sec-

‘tion 3)— -®

**No ruleshall be held inv valid except for v folation of

the Constitution or for conflict with a statute or for lack

of authority conferred upon the agency issuing it by the

statute or statutes pursuant to which it was issued or

for failure to comply with section 2 of this Act.’’

Those who drafted the bill were frankly piciiaine over

claims of unconstitutionality, since in the ettlier drafts they

‘designated the-Court of Claims,. and in the later drafts, the.

United States Court of Appeals for the District of Columbia

_ (both legislative courts), as the reviewing tribunal..Reports

-of American Bar “Association, Vol. 62 (1937), pp. 791, 816,.

et seq., 847, and Vol. 63 (1938), p. 363. The subject of

«Judicial Review of Regulations”’ is ably discussed in the

Report of the Attorney General’s Committee, pp. 115-120,

but even the very mild recommendations incorporated in the

two bills proposed by. the majority and the minority of the

‘Committee with respéct to rule-making procedure and (in

the minority bill, p. 230) judicial review: by declaratory

judgment ‘narrowly confined, encountered a storm\ of ob-

jection and criticism from the representatives \of ederal

administrative agencies. Hearings before Subcommittee

of the Senate Committee on the Judiciary, on 8. 674, S. 675

and S. 676, April 2 to J “ 2, 1941.

Under the circumstances, with the issue still under study —- |

by the Congress (although apparently in abatement because

of the war), a result equivalent to that sought in tlie Walter--

-9 Logan Bitl should not be deemed to have been intended by

——, the Congress when it enacted the Urgent Deficiencies Act

of 1913 (or its predecessor statutes), or Section 402(a) of

- the Communications Act of 1934. The scope of the Urgent —

Deficiencies Act and of Section 402(a) may, with greater

logic and far less hazard, be confined within the limits above

- suggested, leaving it to the Congress to determine whether

and to what extent direct judicial (or administrative) super-

‘vision of the rulemaking my should be provided. ”

e ; :

In Any Event, the Ordef Complained of is not a Reviewable m

Ozder Under Section 402(a) of the Communications Act. ‘8

. The statutes to which the judicial remedy provided by the

‘Urgent Deficiencies Act has been extended are enumerated

in United States v. Griffin, 303 U. S. 226, 235-6. Without

attempting a minute analysis, we know that (except for

{ Title III of the Communications Act) they contain rela-

at tively few provisions authorizing: the making of rules and

regulatio of a substantive character. qor the most part,

the quasiggndicial model set by the original Interstate Com-

‘merce Act*has been foilowed, with notice and saat matte

- prerequisit to admin administrative action.

+ awe It is no} surprising that, with: this background, the ju-

——.—dicial reyfedy provided by the Urgent Deficiencies Att

should have been extended to a few instances of orders

which edme close to, or fall within, the legislative classifi-

, cation, without serious objection or argument. Such. treat-

—* * ment of orders prescribing ‘‘rules’”’ for a limited class of

persons where the statute rakes hearing preréquisite, or

where they are of the ancillary character. represented by ”

uniform systems of accounts, constitute a reasonable com-

promise with abstract theory.

= ’ =

a | cay agers

Even so, there have been orders.which, though of unques-

tioned finality, have been-held-not-within the scope’ of the

remedy. United States v. Griffin;:supra; Great Northern

R. Co. v. United States, 277 U.S. 172. See also American.

Federation “as Labor v. National Labor Relations Board) —

308 U.S. 401. ae

It cannot be pene therefore, that the cross-reference

to the Urgent Deficiencies Act, contained in Section 402(a)

of the Communications Act, conclusively determines ff

interpretationsto be given the section as all-embracing.

There may be final orders of the Federal Commiunications

Commission not open to direct attack in the’ courts under

either Section 402(a)-or 402(b), depending on the intent of

Congress. Evidences of that intent, drawn from legitimate ,

sources under recognized eanons of statutory interpreter.

tion, are at yand- a.

“In construing the Act, this Court sential that

despite the broad language used in the Commerce Court .

Act, Congress could not have intended to include in

. this special jurisdiction suits to set aside every kind of

oO order issued by the Commission’ ( United Dhakee ee

; Griffin, supra, p. 233). oe +

oO 4

Paieeied the same method of ascertaining the Seumilac :

sional intent as that followed in United States v. Griffin, .

supra, we are compelled to’ the conclusion that Section ~‘-

402(a) does not extend to the purely legislative determina-

tions of the Commission under Title III. -The method in- -*

+ cluded examination of, the provisions of the Railway Mail

Pay Act, its background and legislative history, its pur-

poses, and the character of orders entered under it. If may

appropriately be applied to Title II of the Communication-

Act, which is a statute separate ‘i ‘in origin and history from

Title IT,

—

+A. Orders under Title II of the Communications Act.

Titles I and III of the Communications Aét were brought

together in 1934, one from the Interstate Commerce ‘Act .

and the other from the Federal Radio Act of 1927, the for-

mer accompanied by Section 402(a) and the latter accom-

panied by Section 402(b). Scripps-Howard- Radio, Ine. v.

_ Federal Commuhications Commissign, — U.S. —, April”

- 6, 1942 ;* Federal Communications Commissign v. Columbia

Broadcasting System, Inc., 311.U. S. 132. :

The provisions of Title II, entitl& ‘Common Carriers, mn

are obviously reproduced or adapted from the parent stat- .

ute, the Interstaté Commerce Act. They are closely. par- ,

allel in phraséology, and their purpose is identical (Federal

‘Communications Commission v. Sanders Bros., 309 U. S.

470, 474); it-may be assumed that Title IT comes clearly

-within the following general description of statutes to

which the Urgent Deficiencies Act has been made avail-

able— | - ©

“The orders for which review is provided -by each of

these statutes are like-the orders under the Interstate

Commerce, Commission Act: fixing rates payable by

_ shippers’ ‘TU nited States v. Griffin, supra, p. 237).

“Where orders he Interstate Commerce Commission have

been held rev iew able, similar orders by the Federal Com- -

munications: Commission under Title IT will likewise be re-

v iew able.

' 6 For neers ity, reference ‘will be omitted to other regulatory —

‘ authority which was centralized by the Act in the Commissio 4

principally certain powers of the Postmaster General under t

Post.Roads Act of 1866,“and the elaborate amendment of May 20,

1937, introducing Part TI of Title IIT entitled “Radio Equipment

and Radio Operators on Board - ” ‘

ROM eee te

B. Quasi-J udicial Orders Under Title III of the Guciemiica

tions Act.

There are four kinds. of orders. under Title Ill, all quasi-

judicial and not legislative in character, which are review-

able, under Section 402(a) “atid not Section .402(b): (1)

. orders revoking. licenses, after- notice anu opportunity for

: hearing, under ‘Section 312(a); (2) orders modifying

licenses on thes Commission’s initiative, after notice and

opportunffy for hearing, under Section 312(b); (3) orders

disposing of applications for the Commission’s, approval

of transfers of licenses or construction permits under Nec-

tions 310%b) and 319(b); and (4) orders disposing, after |

* notice and hearing, of applications under Section. 325(b)

and ( c) for permits to ‘‘export programs. ’’ That these are

reviewable under Section 402(a) is settled, at least with re-

spect to the firet three kinds, by Scripps-Ioward Radié

Inc. v. Federal Communications Commission, supra; and -

that such rewiewability wae intended by the Congréss is .

evidenced by the refefences to the .statute’s legislative. his-

tory in footnote 5 of the opinion in that case (particularly

78 Cong. Ree. 8825-6). It may be assumed that the same

conclusion would be reached with regard tothe —

tions covered by Section 325(b). and. (c), similar in eh

acter to the applications made appealable under Section

402(b). - ay

That Congress intended to go no further is demonstrated,

- we submit, by the immediate legislative background of See-

- tion 402(a) and (b).

» The Communications Act of 1934 had ghee in the fil-

ing of companion bills in the Senate and TTouse of Repre- ,

' 2910 was amended after hearing and introduced as 8.3285

which, as further amended, was enacted into law. The Con-’

ference Report accompanying S. 3285 (No. 1918; 78 Cong.

_ * Ree. 10988) states with respect to this section (pp. 49-50) :

‘*The Senate bill (sec. 402), for the purpose of dance

- involving carriers, carries forward the existing method

- .

he » a7 st 44

ofgeviee of orders of. the- Interstate Commerce Com-

- mission, and, in the Main, far ‘ radio’ cases carrjes for-

ward the existing metho@ of review of orders of the

Federal Radio Cominission ; but in ‘radig? cases involv-

ing affirmative orders ef the Commission ‘entered in °

proceedings initiated upon the Commission’s own ,mo-

tion in rev ocation, modification, amd suspension mat-

fers, review is to be by the method applicable in the case ~

of orders of the Intérstate Commerce Commission, The

_ House provision contains a similar provision as to

cases involving carriers, but leaves the present section

- . J 16 of the-Radio Act of 1927, as amended, applicable in

, all radio cases, _ The substitute adopts the Senate pro-

vision.’’

_ Ever¥ implication in the foregoing is that the Congress con-

sidered that: with exceptions of the character above noted,

no order under Title TIT was to be placed onthe

sanie footing as orders _under Title i. The commit-

tee hearings, the committee reports, and the debates pre-

{ ceding the enactment of the Communications Act of 1934,

and, indeed, of all. bills relating to radio or to communica- .

tions introduced prior to 1934, may be searched in vain for

the slightest evidence of? any intention, desire, or under-

standing that the legislative determinations of the Commis-

- Sion in regulating radio should or would be made subject to

direct i Pes . ok

C. Legislative Determinations Under the Radio Act of 1927.

e Title IIT of the Communications Act, together with Sec-

tion 402(b) and seattered sections in Titles I, V and VI, con-

stitutes an almost verbatiinw reproduction of the Radio Act ¢

of 1927, 44 Stat. 1162. Section 303 of the Act, on clauses (f)

and (i),of which the Commission’s power to make the reg-

ulations now in question largely depends, is a verbatim -

reproduction .of Section 4 of the Radio Act, enlarged by

the addition of -several clauses not relevant to this discus-

sion. See Appendix, infra.

‘Section 16 of the Radio ‘Act of 1927, relating to appeals,

was the only provision in the Act for court review. It ac-

es. P : 45

’ ; : + 0

corded an appeal to what is now the United States Court of °

Appeals for the District.of Columbia only to applicants for -

construction permit, license, reriewal, or modification, whose

applications had been denied; it also accorded an appeal to: -

‘that Court or ‘‘to the district court of the United States i in’,

which the apparatu$ licensed i is qperated”’ to ‘iny licensee

whose license: had‘ been revoked. Yo appeal was accorded .

- to any person adversely affected a the granting of an ap-

plication.’

Because of the broad scope of review lodged in the

- Court of Appeals ‘by the’ original Section 16, this Court

held that the provision “does no more than make that court |

a superior and revising agency in the’’ administrative field.

Federal Radio Commission v. General Electric Co., 281

U. S. 464, 467. The Act failing to make provision for per- .

_ sons adversely affected by the granting of applications, or

_ for interested parties. to participate in the appellate pro-

ceedings, a preliminary injunction was granted against the

Federal Radio Commission by the Supreme Court of the |

District of Columbia and, on appeal, the granting of the

preliminary injunction was held not error. Saltzman et

_al. v. Strombe rg-Carlson Tel. Mfg. Co., 46 F 2d. 612 (App.

D. (.).. See also Baltimore Radio Show, Inc..v. Federal

Radio Commission, Journal of Radio Law, Vol. I, p. 120.

Attempts by applicants, however, to resort to, relief by in-

junction uniformly failed. White v. Federal Radio Com-

_ mission, 29 F\Qd. 113, D. C, Tl. (see White v. Johnson, .282

U.S. 367) ; United States v. American Bond & Mortgage -

Co., 31 F. 24. 448, D.C. Tll. (see $82 U. S. 374 and 52 F. 2d..

318, 2 ae eae; ;

~ In 1930,. Section 16 was amended (1) so as to limit the

~ seape-of review to one of judicial character, (2) to afford

the right of appeal, and the right to participate in appeals,

to persons other than applicants, aid (3) to confine appeals

in revocation cases to the Court of Appeals, 46-Stat. 844.

. ™The Radio Act contained no provisions corresponding either to

Section 312(b’). or Section 325 (hb) and (c).

\ dar

i area 6 |

There W were other changes not relevant to this Ninanaiat:

In 1934.this: amended Section 16 was carried forward al-

most verbatim info Section 402(b) of the Communications

Act. except that, for reasons already explained, review of:

revocation orders under Section 312(a) was. intentionally

placed back in the district courts where it had -originally

. ‘been, and the same provision was made for modification

orders under Section 312(b). In the interim between 1930

and 1934 there had been outspoken’ complaint against the -

améndment of 1920 because of its forcing licensees to come,

to Washington on appeals from revocation orders (see, | for

expt, he remarks of Senator wae on Fekgnary 28,

1933, 76. Wong. Ree. 5208). -

There were seyeral attempts during this period to resort

to the United States District Court in the District of Co-

lumbia: for injunctive, relief but they were unsuccessful.

Sykes et al..v. Jenny Wren Co., 78-F. 2d. 729 (App. D.-C.),

cert. den. 296 U. S: 624; Monocacy Broadcasting Co. v.

Prall et al., 90 F. 2d. 421 (App. D. C.); Black River Broad-

“casts, Inc. v. MceNinch. et ,al:, 101 F.2d. 235¢( App. 2. ¢c);-.

cert. den. 307 U. S. 623. In the last of these, rendered Nov.

21, 1938, the Court of Appeals said (p. 237):

“In the Act, wongress has made: this court the sole

Appellate body (with right to petition for certiorati to

the Supreme Court) whereby the action of the Commis-

sion can be tested and has provided that any party ag

grieved may have its rights reviewed. here. It,is well

settled that the exclusive remedy rovided aby thie stat-

ute to test the Commission’s action is vested in this

‘court by appeal, from which it follows that other courts

“to rot grant equitable relief in. such cases.’

/ the- meantime, i ina large number of cases taken eae

the Court°of Appeals by the route provided i in the original

Section 16, in the amended ‘Section 16 of the Radio Act

_prior to 1934, and in Section 402(b) since then, the validity

of regulations of.the Commission has been questioned, con-

sidered, and discussed. This was true of Federal Radio Com-

mission v. Nelson Bros. Bénd &.M. Co., 289 U. S. 266, 281..

: 4

It Was also true of General Rlecieié oe v. Federal Radio

Commission, 31 F: 2d. 630 (cert. dismissed 281 U. S. 464):

_ Carrell vy. Federal. Radio Commission, 36 F. 2d. 117; ; Chi-

_ cago Federation of Labor v. Federal Radio Commission, 41

F’, 2d..422, 423; Courier-Journal Co. v. Federal Radio Com-

mission, 46 F. 2d. 614; Durham Life Ins. Co. v. Federal

Radio Commigpion, 55 F. 2d. 537; Pacific Development |

Radio Co. v. Federal Radio Commission, 55 F. 2d. 540;

‘Eastland-Co.". Federal Communications Commission, 92 F.

2d. 467, 471-2; Pittsburgh Radio Supply House v.. Federal

Communications Commission, 98 F. 2d. 303, 306; Woodmen

of the World Life Ins. Soe. v. Federal Communications .

Commission; 105 F. 2d. 75, 78; Colonial Broadcasters, Inc.

~ v. Federal Communications Commission, 105 F. 2d. 781; Tri-

State Broadcasting Co. y. Federal Communications Com-

mission, 107 F. 2d. 956, 958; and Ward v.. Federal Com-

munications Commission, 108 F. 2d. 486, 490-1. Many ap-.

peals have been té®en under.these provisions, approxi-

mately 44 before salt 1, 1934 and 39 since then,,.by many

different persons. and‘ interests, represented by: a number >

of different lawyers, Those dissatisfied With the workings * *

of the statute have never hesitated to maké known their

_ criticisms and suggestions in the Congressional hearings on

the stibject of radio which have taken place not less than, an

average of once every two years since 1923. Never ‘once “

prior to 1934 was any suggestion made that the Radio Act

of 1927 was defective in not providing for direct judicial’

review over the Commission's orders adcpting regulations —

in the field of radjo. . Never once since then (until now) has

attvone deemed Section 492(a) applicable to such an order. .

. The salient fact in this pistory is that, -when the Radio

‘ Act was merged into Title ITI of the Communications Act,

it provided no such remedy. Its Pee. provisions were

entirely built on, and related to, hearings on applications,

revocations and appeals from orders resulting therefrom.

Nowhere:in Title III is any hearing required as prerequi- *

site to the adoption of a regulation, with an irrelevant excep-

gh ES aes

tion made in Section 303(f)*. Nowhere is there the slight-

est implication that, if hearings are held prior to adopting

regulations, they should be on the quasi-judicial - model.

Throughout, there is a studied contrast between actions :

on applications (or* revocations) and | the ‘adoption of

- regulations.

D. Nature of the orders involved. ?

The regulations of the Federal Communiéations Com- .

mission constitute Title 47 of the Code of Federal Regula-

tions of the United States. and, as of June 1, 1938, occupied

almost an entire separate volume, with a total of 478 out of .

487 pages. Its regulations account for 78 pages in the 1938

‘Supplement and 257 pages of fine prifit in the 1939 Supple-

‘~ment. Since then a large number of further regulations

have bean issued, covering a variety of subjects in the rap- |

idly advancing radio. art, with special reference to sych

ingtte s as television, high frequency broadcasting, includ-

ing frequency modulation, and many others. ‘They are con-

stantly being supplemented, and are available in pamphlet

‘form in an impressive series of pamplilets covering sepa- -

rate subjects (see list in 7th Ann. Rep. of FCC, 1941, p. 66),

Reference. to the 1939 Supplement will sufficiently serve -

to réveal the character of the regulations. of the 257 pages,

the first/28: have to dofwith practice and procedure, and a

portion of the last, 26 have\to do with common carrier mat-

ters, principally the filing of contracts and periodic reports, .

and rules governing tariffs, and-much of that is procedural.

. Virtually all the remaining pages are filled with regulations

of a substantive character, sometimes expressed in the form

' of outright prohibitions or commands, and. just as frequently

(if not anh so) in.the form of policy declarations like the

regulations: now complained of. /

* Changes in the frequencies, authorized paws or times of opera-

tion, without the consent of the licensee, are Made — to hear-

ing. This.i is imply the counterpart of Section 312(b).,

ia . Stel i~

A substantial portion’of the regulations are required by

treaties to which:the United States is a party. Examples of

‘such treaties are the North American Regional Broadcast-

ing Agreement (Treaty Series 962), signed, at’ Havana, |

1937, the International Telecotumunications Convention

(‘Treaty Series 867), signed at Madrid, 1932, and the

General Radio R lations (Treaty Series 948), signédy:

at Cairo, 1938, Further regulations are required by intéy

national arrangements.of an executive character, constantly

being, made between the administrative authorities of the

several countries, usually pursuant to provisions in the

4, treaties and the obligations imposed thereby. oe

The limited ‘nuifiber of common carriers ‘subject to the

Commission’ 8 jurisdiction is indicated by the fact that: 216

» companies filed annual reports, and 115 of these filed monthly .

_ reports, for the year 1940, including a number of tele-

phone carriers that are not subject to the complete jurisdic-

tion of the Commission. . Of the 115, 98 were telephone car-

riers, 8 wére wire-telegraph’ ‘or oeean-cable carriers, and 9

were radiotelegraph carriers (7th Ann. Rep. " 1941, p. 64).

In contrast with these figures; there were; as of June 30,

1941, 1,545 tadio stations belonging.to the*broadcasting and -

_ related classifications (television, high frequency, intdrna- ~

- tional, facsimile, etc.), 12,632 radio stations of other ser-

vices (aviation, ship, police, fire, point-to-point, coastal, geo-

* logical, ete.),-and over 50,000 amateur licenses: (7th Ann.

Rep., 1941, pp. 5 62, 63). The foregoing are in addition to

approximately 80,000 radio operator licenses, the operators

being, of course, all subject to the Commission’s licensing

authority and regulations (ibid., p. 50). .

- Under Section 606(c) of the Act, upon proclamation by

Bis President of war or other national emergency,

‘‘the President may suspend or amend, for such time as

he may see fit, the rules and regulations a plicable to °

any or all stations within the jurisdiction of the United

States as prescribed by the Commission.”’

”

Under ‘Meithie: 305(a), ‘Government —, with imma-

. terial exceptions,

‘*shall conform to all rules and regulations designed

es tg, prevent ‘interference with other radie stations and.

‘the rights of others: as the Commission may sheen ‘

- Under Section 312(a)

‘‘ Any station license may be revoked cee for viola-

tion of or failure to observe any of the restrictions and

conditions of this Act or of any regulation of the Com-

- inission authorized by this Act-or by a treaty: ratified

by the United. States * * *.’’.

Under Section 502, wilful And knowing violation of any iz

the Commission’s rules or regulations is made a penal of-

fense. Under Section 303(m), the Commission may, after

hearing, suspend-the license of any operator for violation

‘ of any of the Commiission’s regulations. When these pro- .

visions are considered in conjunction with the quasi-judicial

provisions for hearings on applications under Sec.

~ there is certainly no lack of a forum in which to contest the,

Comimission’s legislative determinations.

The many clauses in Section! 303 contain the bulk of the

Commission’s regulation-making powers. There are, how-

ever, additional powers of this character in. Sections

4(i), 308(b), 315, 319(a), and. 325(e). The only stand-

‘ard imposed by Congréss on the Commission as a guide

is the broad test of ‘‘ public convenience, interest or neces-

sit?’’ in the ‘introductory portion of. Section 303. The

bread dimensions of these powers, both in subject-mat-

ter and “in standard, are in ‘striking contrast to the

few’ and narrowly-defined regulation-making powers con-

ferred by Title II, and by the other statutes to which the

Urgent Deficieneies Act has been made applicable. The

standard ‘‘public convenience, interest or necessity,”’ taken |

with the subject-matter, admits and requires a large ‘mea-

- gure of discretion in a highly technical and rapidly advanc-

ing scientific art, in which not only the contents but the boun-

eae = ‘ 4 *

’ ‘e 7 e. : ’

. 3 .

. e : 7 * ;

daries of the asin will be.difficult to discover except in

thef ramework of a concrete application of the Commission‘s

‘policy in a particular case. 3

In arriving at its legislative determinaticie the Commis-

sion has, over the years, employed all the usual methods’ for

‘the securing of information, including investigations in the

field (which, in turn, h&ve included countless thousands of _

observations and measurements with technical apparatus),

: questionnaires, data exchanged with foreign countries, con-~

) fer€nces with interested groups and experts, informal hear-

) _ ings, and formal hearings. The hearing in the instant case,

)

resulting in a record of 8, 713 pages and 707 exhibits, while

of course larger than ‘the average, is only one of a num-

_ ‘ber of huge records built up in aps proceedings where. they

_* have been held,

) In none of these matters was ‘Sains required “~ stat-.

ute. The same determinations could have been made on the

basis of information secured by informal methods (as it has

been in other important sets of regulations adopted by the

". Commission), with no record setting forth the considera-

tions and facts leading to the result. Under present condi-

tions, indeed,-it Would not be proper to make some of the

considerations public; and_yet very important legislative

“enactments are being made from week to’ weék, seriously

affecting ‘the persons subject to the Commission’ s regu-

latory powers.

In the court below, counsel for appellants <istehe indicated

* that it was their, conception of the review accorded by Sec-

tion 402(a) that it permitted a complete factual showing. by °

appellants in support of the claim that the Commission had °

exceede? its powers and in so doing had deprived appellants

of their rights. It is difficult to conceive of any factual

showing which would not duplicate, in whole or in part, the

recard made before the Commission in this case and; if any

important facts are lacking in that record, it can only be

due to appellants’ failure to present all the available mate-

rial evidénce to the Commission.

¢ .

; - §2 ,

‘niin however? there had been no hearing and there

were no formal record? IS the door to be thrown open to an

extended judicial hearing of.the sort sought by appellants?

Once sueh a review is permitted, within what limits ean it

be confined? How can suits brought under Section 402(a)

'-" be prevented from becoming an effective weapon to subject

the Commission’s regulations to interminable delays, and

to,countrywide diversitics of judicial rulings?

CONCLUSION.

It is enhinitiod ‘that the judgments of the district court

. « should be affirmed.

i wae "Respectfully,

a Louis G. CaLpwett,

- gee Leon Lavrensteiy,

$ Emanvet Danwertr,

, . Pescy H. Russex., Jr.,

Counsel for Mutual Broadcasting

System, Inc., Intervenor.

6 7 53.

_\. APPENDIX. }

THE COMMUNICATIONS ACT OF 1934

(47 U. S. C. §$.151 et seq.)

TITLE I.

GENERAL PROVISIONS.

\«s 154. Federal Communications Commission; compo-

* stition and provisions relating thereto generally

| i te & 6° 6 2 2s.

_ (i) The Commission ‘may “perform any and all acts,

make such rules and regulations, and issue such orders, not

inconsistent with this chapter, ac may be necessary in the

execution of its functions.’’. '

; : ae ._ £ @ e o @ a > , + e o

‘ TITLE Il. -

= _ COMMON CARRIERS.

sd s e é ss. « * . a + o

P ° )

TITLE Iii. : : :

PROVISIONS RELATING ‘TO RADIO,

Part I. General Provisions. mae

“€ 303, Powers and duties of Commission

‘Except as otherwise provided in this chapter, the Com-

o mission from time to time, as public convenience, interest,

or necessity requires, shal]l— :

(a) Classify radio stations ; a

*(b) Prescribe the nature ‘of the. service to “ eee by

_each class of licensed stations and each statioy within any

class;

' of stations, and assign frequencies for each individual sta-

—

ya Date.

| tion and determine the power which each statiori shall use

and the time during which it may operate;

(d) Determine the location of classes of stations or in-

dividual stations; ear

(e) Regulate the kind of apparatus to be used with re- -

spect to its external effects and the purity and sharpness

' of the emissions from each station and from the apparatus

therein ;

(f) Make such regulations not inconsistent. with law as it

may deem necessary to prevent interference between sta-

tions and to carry out the provisions of this.chapter: Pro-

_ vided, however, That changes in the frequencies, authorized

power, or in the times of operation of dny station® shall not.

be made without the consent of the statior# licensee unless,

after a public hearing, the Commission shall determine that

such changes will promote public convenience or interest -

or will serve public necessity, or the provisions of this chap-

ter will be more. fully complied with ;

(g) Study new uses for radio; provide for éxperimental

uses of frequencies, and génerally encourage the Jarger and

more x effective use of radio-in the publie interest;

if (hy Have , authority to establish areas or zones ‘to be

i seryed by any station;

(i) Have authority to make special regulations appli

cable to radio stations engaged in chain broadcasting ;

(j) Have authority to make general rules and regula-

tions requiring stations to keep such records of programs,

“ transmissions of energy, communications, or signals: as s it

' «may deem desirable ; f .

_ (k) Have authority to exchyle from the requirements of

any regulations in whole or in part any radio station upon

‘railroad rolling stock, or to modify such sogniations { in its

_ discretion ;

« (1) Have authority to prescribe the qualifications of sta- -

tion operators, to classify them according to the duties to

be performed, to fix the forms of ‘such licenses, and to issue

them to such citizens of the United States as the Commis-

sion finds qualified ; eae

(m) (1) Have authority to suspend the license of any

operator upon proof sufficient to satisfy the Commission

that the licensee— ; :

(A) has violated any ‘provision of any Act, treaty, -

.or convention binding on the United States, which the

Commission is authorized to administer, or any regu-

lation made by the Commission under any aes Act,

treaty, or convention ; or

(B) -has failed to carry a a lawful order of the

- - master or person lawfully in charge of the ship or air-

-_ eraft on which he is employed ; or .

ratus or installations to be damaged; or:

‘(D) has transmitted superfluous radio communica-

- tions or signals or conmmunications containing profane

or obscene words, language, or meaning, or mae know-

ingly transmitted— ;

(1) false or deceptive signals or communications,

gee ies

(2) a call signal or letter which has not been as-

siZtied ‘by proper authority to the station he is op-

erating; or ¢

- (E) has willfally or maliciously interfered with any

other radio communications or signals; or ‘

(F) has obtained or ‘attempted to obtain, or has as-

sisted another to obtain or attempt to obtain, an op-.

erator’s license by f raudulent means.

(2) No order of suspension of any operator’s liv nse

shall take effect until fifteen days’ notice in writing thereof,

stating the cause for the proposed suspension, has been

: | pe ey

- } ;

es , \

56 ;

giyen to the operator licensee who may make written appli-

cation to the Commission at any time within said fifteen

days for a hearing upon such order. The notice to ‘the op-

erator licensee shall not be -effective until actually re-

- ceived by him, and from that time he shall have fifteen

days in which to mail the said application, In the event that

physical conditions prevent mailing of the application at

as expiration of the fifteen-day period, the application

shall then be mailed as-soon as possible thereafter, accom-

panied by a satisfactory explanation of the delay. Uponre- -

ceipt by tl Commission of such application for hearing,

said order of suspension sha held in abeyance until the

conclusion of the hearing whith shall be conducted under

such rules as the Commission may prescribe. Upon the con-

clusion of said hearing the Commission may afirm, modify,

or revoke saéd order of suspension. :

(n) Have authority to, inspect all radio installations as-

sociated with stations required to be-licehsed by any Act-or

which are subject to the provisions of any Act, treaty, or —

convention binding on the United States, to ascertain»

whether in construction, installation, and operation they

conform to the requirements of the rules and regulations of .

“ the Commission, the provisions of any Act, the terms of any’

treaty or convention ‘binding on the United States, and the

conditions of the license or other instrument of authoriza-:

tion-under which they are constructed, installed, or Op-

$ erated. Lange

(0) Have. authority to designate call letioes of all sta-

tions; is ee oO: P

(p), Have authority to ‘cause to be published such call

letters and such other announcements and data as:in the

judgment of the Commission may be required for the ef-

ficient operation of radio stations subject to the jurisdiction .

of the United States and for the proper enforcement of this

chapter;

”

1S 2

(q) Have authority to.require the painting ‘artd/or illum-

ination of radio towers if and when in its judgment such

towers constitute, or there is a reasonable possibility that

they may constitute, ‘a. menace to air navigation.

. - ( r) Make such rules and regulations and prescribe such

_restrictions-and conditions, not inconsistent with law, as

may be necessary, to carry out the provisions of this chapter,

or any international radio or wire communications treaty

or convention, or regulations annéxed thereto, including

any treaty or convention insofar as it relates to the use of

radio, to: which the United States is or may hereafter sbe- .

_come_a party.”* '

‘ ° f as

2 e e@ ‘* a oe - * s e . *.

=o 305. Gogernment owned stations ; regulations ; sta-

tions-on vessels; call letters

(a) Radio stations belonging ‘a and operated by: the--

United-States shall not be subject to the provisions of sec- .

tions 301 and 303 of this. chapter. All such Government

stations shall use such frequéncies as. shall be assigned to

‘each or to. each class by the President. All such stations,

except stations on board naval and. other Government ves-

sels while at sea or beyond the limits of the continental

> United States,” when transmitting any radio communica-

‘tion or signal other than a communication or signal relating

to Government business, shall conform to. such rules and

regulations designed to prevent interference with other

radio stations and the rights of others as the Commission °

Sy may prescribe.’’

. i ae sos . “ee a a _*

ug 308. Same (licenses); application ; conditions and re-

strictions in license for foreign communication a .

_ oe

(b) All such applieations shall set t forth par facts as the

Commission by regulation may prescribe as to the citizen A

ship, character, and financial, technical, and other qualifica-

tions of the applicant to operate the station; the ownership

and location of the proposed.station and of the stations, if

any, with which it is: proposed to communicate; the. fre-

quencies and the pqwer desired to be used ; the hours of the

_ day or other periods 6f time during which it is proposed to

operate the station; the purposes for which the station is

to be used; and such other. information as it may require:

The Commission, at any tinie after the filing of such orig-.

inal application and during the term of ariy such license,

nay require from an applicant or. licensee further written

statements of*fact to enable it to determine whether such

orjginal applicatiofi should be granted or denied or such |

license revoked. Such application and/or such statement:

_éf fact shall be signed by the miata and/or licensee

under oatli or affirmation.’ 9

7 3 * : . es @ ; ° ; ee 6 * -

+8339. Same (licenses) ; revocation and modification ; no-

‘tice and hearing

(a) Atiy station license may be revoked for false state-

ments either i in the application or in the statement of fact -

which may be required by section 308 hereof, or. because of

conditions revealed by such statements of fact as may be re-

quired from time to time which would warrant the Commis-

sion in refusing to grant a license on an original application,

or for failure to operate substantially as set forth in the li-

cense, or for violation of or failure to observe any of the re- :

strictions and conditions of this chapter or of any regulation

of the Commission authorized by this chapter or by a treaty

ratified by the United States: Provided; however, That no

such order of revocation shall take effect untél fifteen days’

‘notice in writing thereof, stating the cause for the proposed* .

revocation, has ‘been giver, to the licensee. Such licensee

may make written application to the Commission at any

time within said fifteen days for a hearing upon such order,

and upon the filing of such ‘written application said order of.

revocation shall stand suspended until the conclusion of the

_hearing conducted under stich rules as the Commission may

.59

prescribe. Upon the ‘conclusion of said hearing the Com-

mission may affiri, modify, or revoke.said order of revoca-

- tion.”’ :

**§315. Candidates for public office ; facilities,

If any licensee shall permit any person who is a laalie

qualified candidate for any public office to use a broadeast-—

ing station, he shall afford equal opportunities to all.other

Brey eC for that office in the use of suchi broadedst-

ing station, and the Commission shall ‘make rules and regu-

lations to carry this provision into effect: Provided, That

such licensee shall have no power of ¢ensorship over the ma-

oblig ition is hereby imposed upon any licensee to allow the

° use of its station by any such candidate.”’ - i

‘* * te, 2 * * Loe ee * 6

648 319. Construction permits ; licenses for operation

‘chapter for the operation of any station the construction of

‘unless a permit for its construction has been granted ‘by the

mission may grant such permit if public convenience, inter-

ést, or necessity will be setved by the construction, of the

station. This application shall set forth such facts as the

Commission by regulation may prescribe as to the citizen-

ship, character, and the financial, technical, and other abil-

ity of the applicant to construct and operate the station, the

station or stations with which it is proposed to communi-

cate, the frequencies desired to be used, the hours of, the

operate the station, the purpose for which the station is to

be used, the type of transmitting apparatus to be used, the

power to be used, the date upon which the station is expected

. terial broadcast under the provisions of this section. No:

(a) No. license shall be issued under the authority of this.

which is begun or is continued after this chapter takes effect,

Commission upon written application therefor. The Com-.

owffrship and location of the proposed station ‘and of the —

day or other periods of time during which it is proposed to?

”

Mot be paiuieeian “iid in operation, and such ae informa-

tion as the Commission may require,- Such application shall

be signed by the applicant under oath or affirmation.’’

e “5 m-# * * ° 1° . . °

. 4 * i. ” ’

-* : ace

‘6s B05, False distress signals; rebroadcasting pro-

grams; studios ‘for broadcasting to foreign countries for

rebroadeasting to U nited States ; permit

* a . . * . - pt Pe « *

(b) No ie shall bi permitted to locate, use, or main-

tain a radio broadcast studio or other place or apparatus

from which or whereby.soun@ waves are converted into |

electrical energy,.or mechanical or physical reproduction of -

<dund waves! produced, and caused to be transmitted or de-

livered to a radio station in a foreign country for the pur- . °

pose of being broadcast ffom any radio station there having

a power output of sufficient intensity and/or being so lo-

cated geographically that its ¢missions may be received

consistently in the ‘United States without first obtaining a

permit from the Commission upon proper.epplication there-

for. :

”

(¢c) Such application ‘shall contain such information as

‘the Commission may hy regulation prescribe, and the grant-

ing or refusal thereof shall be subj ect to the requirements

‘of. section 309 hereof with respect to ap Re pe for sta-

tion licerises or renewal or modification hereof, and the li-

cénse: or permission so granted shall be rev ocable for false

statements-in the application so required or when the Com-

mission, after hearings, shall find its continuation no longer

_in the publie interest. dette. ) os

4 .

< - * e & . _ a » * * s

ae 3 Pee 61 LR ine. ioe

Part II.’ Rapig EquipMEntT AnD Rapio Ofzrators ox Boarp

7 “TITLEIV.

po _ PROCEDURAL AND ADMINISTRATIVE

PROVISIONS

eo - ‘6 * Be ee . a «* 7. ‘*

_ TITLE V. ;

PENAL PROVISIONS: FORFEFTURES

ite. . :* * a7 ‘ s . on =i . 5 *

‘¢$502- Violation of rules, regulations, éte.

Any person. who willfully and knowingly violates any

_ rule, regulation, restriction, or condition*made or imposed

by the Commission ‘under authority of this chapter, or any

Tule, regulation, resttiction, or condition made or imposed

' by any.international radio or wire coinmunications treaty

or convention, 6r regulations annexed thereto, to which thie -

United States is or may hereafter become a party, shall, in |

addition to ‘any other penalties provided by law, be pun;

ished, upon conviction thereof, by a fine of not more than

$500 fot each and every day during which such offense

occurs.’ feaee

i) ‘

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. Dear ok <_? .

TITLE. VI.

MISCELLANEOUS PROVISIONS

‘* $606. War. powers. of President

war or a threat of war or a state of public peril or disaster

or other natiorial emergency, or ift order to preserve the

neutrality of the United States, the President may suspend

or ‘amend, for such time as he may see fit, the rules and reg-

ulations applicable to any or all stations within the juris-

diction of the United States as. prescribed by the Commis-

sion, and may cause the closing of any station for radio -

communication and the remo¥al therefrom of its apparatus

and equipment, or he. may, authorize the use or control of

any such station and/or its apparatus and equipment by any

department of the Government under such regulations as he

.may prescribe, upon just compensation to the owners.’’

\ .

———

National Broadcasting Company, Inc.,)

~ SUPREME court OF THE UNITED STATES.

YS"

Wootimen of the World’ Life Insur- oo. -

ance Society and Stromberg-Carl- fe

- son Telephone Manufacturing Com-| Appeal from the District

No. 1025—Ocronni Trem, — oF. 5 aS

_ pany, Appellants, ey Court of the United

: us. ; States for the Southern

The United States of America, Fed-| District of New York.

eral Communications Commission)

>and Mutual Broadcasting System, | ~s.

Inc, ve : :

es ‘ ‘ i ‘ge

- [June 1, 1942.] : .

‘Mr. Chief Justice SPONE delivered the opinion of the Count:

This is a companion case to No. -1026, Columbia Broadcasting” .

System, Inc. v. United States, decided this day. Both present sub-

stantially similar facts and the same issues of law.

‘ Appellant, National Broadcasting Conépany, maintains two radio

broadcasting systems, the,‘‘blue network’’ and the ‘‘red network”’.

The two other appellants operate radio broadcasting stations

licensed by the Communications Commission, and have entered -

into contracts with National similar to those involved in the Colwm-

bia case and to those of other stations which participate’ in Na-

tiopal’s networks.

Appellants ‘brought the sirendill: suit in the Southern District

of New York to set aside the order of the Commission of May 2,

1941, as amended by its order. of October 11, 1941, promulgating

the Chain Broadcasting ,Regulations which we considered in the

Columbia case, on the grounds: that the order,.J8 beyond the Com-

mission’s statutory authority or, if within it, that the statute is

an unconst itutional delegation of the legislative power of Congress

in violation of Afticle I,.§/1: of the Constitution, and operates to

deprive ‘appellants of property without the due process of law

‘guaranteed by the Fifth Amendment:

- The district court of three judges dismissed the complaint; — F.

Supp. —, holding that the ‘Commission’s order is not reviewable

er the provisions 6f § 402(a) of the : Communications Act of |

2 National Broadcasting Co., Inc. vs. United States et al. |

1934, 48 Stat. 1093, 47 U. S. C. § 402(a), and the Urgent Deficien-

cies Act, 28 Stat. 219, 28 U.S. C. $47, but stayed the operation of~~

the order pending’ direct appeal to this Court.

According to*the allegations of the bill of complaint, National.-,

conducts its broadeasting business in substantially the same man-

ner as Columbia.“ It: establishes telephone wire connections with ”

Nicensed broadcasting stations with which it enters {nto contracts -

for limited periods for chain, broadcasting of its radio programs. °

These contracts do not require that the station shall, broadcast the

programs of no other chain than National. But a feature of than

' is the option given to National for .use of the station’ on 28 days’

_ notice for certain specified periods of radio time in broadeasting

commercial network programs provided by National. It is alleged

that beeause of the contract provisions the regulations will require

the stations affiliated with National to abandon their contracts‘ or

lose their licenses either by the Commission's cancellation of: or

refusal to renew them. ‘The bill of complaint makes a sufficient °

showing of irreparable injury to National, including an allegation

_ that forty-eight affiliated stations have served notice of ‘abrogation ,

of the contracts, ,

For the reasons stated at length in the opinion in the Columbia

ease, we hold that the ordersof the Commission is reviewable in

the present suit ‘by the’ district court of three judges. The dill

of complaint states a cause of action, in equity. The judgment

" will accordingly be reve and thé cause remanded for further

proceedings. | g - was

Unlike the Columbia, case, the record discloses no facts showing

whet. offect the Commission’s minute adopted after the present

suit was brofight has had or will have upon the cancellation of |

appellants’ contracts by the affiliated stations. So far as relevant

‘that will be a matter for consideration by the court below, as will

be the question, riot considered here, whether the appellants other

than National are proper parties plaintiff. 4

As in the Columbia case the stay now,in effect will be continued,

_ on terms to be settled by the court below. .

Reversed. .

Mr. Justice Back ‘took no part’ in the consideration or decision.

of this case. ~~ .*

Mr. Justice Reep, Mr. Justice FRaNKrvurtrr and Mr. Justice

Dovotas dissent for the reasons set forth in the dissenting opinion

in No. 1026, |

“se

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.