# Brief for the Intervener — Nat. Broadcasting Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0035%3A8 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Intervener - **Published:** January 1, 1942 - **Citation:** 316 U.S. 447 ## Text GG = ° =‘ “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 $$$ % - ud 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) * a, 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 © N. J. Eq. 504, 179 A. 116 0... - cee eee e reece sees tsegenes +a. 33 © St. Joseph Stock Yards Co. v. United States, 298 U. 8. 38... woveed we 14, 20 * 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 » 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 ve | \ \ es, 2 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- 4 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: v - 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 6 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- © phone Corp. v. United States, 307 U. S. 125, that it is unnec- . 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 we 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 12 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} (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-. wy ‘18 ‘form systems of accounts aud orders requiring periodic reports. ms &> 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 ae 4 “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 c. » ‘ 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 * .° . 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 . é 31 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 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- Ot ¥ 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 0 (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- 4 & A eae = ‘ 4 * ’ ‘e 7 e. : ’ . 3 . . e : 7 * ; . 51 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 , + 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; (c) Assign bands of frequencies to the various ‘classes | ' 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 ; Pa o , 55 « (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 . (C) has wilfully damaged. or permitted radio appa- 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 , \ oe 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 57 (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 . *. c =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 53 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.”’ : ° ‘ * * +. * *: "eget © * **§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- i 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 7 . 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? ie Ss 60 ” 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.’’ o. 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 - 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 oe er the provisions 6f § 402(a) of the : Communications Act of | i 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0035%3A8. Public record. Not legal advice.