brief for the federal communication — Borrow v. Federal Communications Commission (No. 403)

in ac te FILED |

te OCT 7 1950

JAMES R. BROWNING. Cier |

3n the Decierin Court of the United States

OCTOBER TERM, 1960

MORTON BORROW, PETITIONER

wv. -

FEDERAL COMMUNICATIONS COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL COMMUNICATIONS

COMMISSION. IN OPPOSITION

J. LEE RANKIN,

Soliritor Ge ee rai,

e

~ ROBERT A. BICKS, .

Assistant Attorney General,

RICHARD A. SOLOMON,

Attorney,

Department of Justice, Washington 25, D.C,

JOHN L. FITZGERALD,

General Counsel,

Ax D. PAGLIN, .

Assistant General Counse!,

RUTH V. REEL,

Counsel, a.

“ederat Communications Commission,

.bFashington 25, D.C. ‘

“INDE SS

Opinions below |.................. Se

Jurisdiction

Questions presérted

Statutes and regulations involved

Statement

Argument -

Conclusion

Appendix

_CITATIONS

Cases:

Adler Vv. Board of Education, 312 U.S. 485

American Communications Association V. Douds,

339 U.S."382 ue ‘ 19, :

Beilan‘v. Board of Education, 257 U.S. 399 Oo EE. 3

Didriksen Vv. Federal Communications Commis-

sion, 254 F. 2d 354, affirming Didrifsen. 13

Pike & Fischer R.R. 125 6.11,

Federal Communications Commission V. WOKO,

Ine., 329 U.S. 223 aces

Garner ¥Y. Los.Angeles Board, 341 U.S. 716

Greene V. McElroy, 360 U.S. 474 11,

Kent Vv. Dulles, 357 U.S. 116. 11,

Lerner v. Casey, 357 U.S. 468 10).

Speiser Vv. Randall, 357 U.S. 518

United States V. Morton Salt Co., 338 U.S. 63:

Yates v. United States, 354 U.S. 298

Administrative Decisions:

Dispatch, Inc., 13 Pike & Fischer R.R. 237

John M. Moreno, 11 F.C.C. 421 be:

‘Travis Lafferty, 23 F.C.C. 761, 13 Pike & Fischer

an. 6) 5, 42

II

Constitution, statutes and rules: Page

United States Constitution, First Amendment. 8,9, 19

Communications Act of 1934 (48 Stat. 1064, as

amended, 47 U.S.C. 151, et seq):

Section 1 - ae ; ey 9

Section 308(i).: .............- -. 4, 6, 7, 9, 12, 15, 17

Section 303(m) 14,17

Section 402(d) . 12, 22

* Section 403 _. ~ ae

Section 606(c) ' 10, 23

Radio Act of 1912, 37 Stat. 302 13, 15

Radio Act of 1927, 44, Stat. 1162 13, 15

Smith Act, 18 U.S.C. 2385, et seq. 19

os Stat. 189, 190 17

2 Stat. 981 .. Ha 17

oR USL. 2312 12

Rules and Regulations. of the Federal Communi-

cations. Commission, 47 C.F.R.

Section 1.71 Pa... 8, 14, 24

Section 171 (a) 3, 9, 24

- Section 171(d) 5, 25

Section 3.93 10

Section 13.62 _, 10

Miscellaneous:

87 Cong. Rec. 6259 16

7 Cong. Rec. 9628 17

9 Federal Communications Commission Annual

Report (1943) 13

Feeerst Communications Commission Order No.

5 (1940), 5 F.R. 2394 13

Federal Disbinisioitione Commission ‘Proposed

: Report and Order, 1 Pike & Fischer R.R., Part

Il, p. 63:ix, at 63:x_- 14

_ Federal Radio Commission Rules, as revised Oct.

8, 1933° (pamphlet ed. GPO 1934), Sec. 440 13

11 F.R. 1218, 6685 if

16 F.R. 12452, Sees. Jand4 * 10

‘92 F.R. 10981... 14

H.R. 10116, 76th Cong., 3d Sess. 16

Il

Miscellaneous—Continued Page

H.R. 2662, 77th Cong., Ist Sess... 16

H.R. 3364, 77th Cong., Ist Sess. —: 16

H.R. 5074, 77th Cong., ‘Ist Sess. .. - 16

Hearings before. a Subcommittee of the Senate

Committee on Commerce on S. 3620 and 8.

5334, 62d Cong., 2d Sess. - ee

Hearings before the House Committee on Mer-

chant Marine and Fisheries on H.R. 13159,

65th Cong., 3d Sess. 13

Hearings before the House Committee on Mer- :

chant Marine and Fisheries on H.R. 3052, 76th

, Comg., igt Sem. ...........

Hearings before the Subcommittee of the House

Committee on Appropriations on the Independ-

ent Offices Appropriation Bill for 19142, 77th

Cong., Ist Sess. 16

Hearings before the House Committee on’ Mer-

chant Marine and Fisheries on H.R. 2662, 77th

Cong., Ist Sess. 16

Hearings before a ‘Snbcommittee of the Senate

Committee on Commerce on H.R. 50714, 77th

Cong., 1st Sess. 17

Proclamation No, 2914, 15 F.R. 9029 mL

S. Rep. No. 196, 75th Cong., Ist Sess. 17

S. Rep. No. 2338, 85th Cong., 2d Sess... - 18,19

Iu the Supreute Court of the United States

OCTOBER TERM, 1960

No. 403

MORTON BORROW, . PETITIONER

2,

FEDERAL COMMUNICATIONS COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICF OF COLUMBIA CIRCUIT

BRIEF: FOR THE FEDERAL COMMUNICATIONS

COMMISSION IN OPPOSITION -

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 15-

24) has not yet been reported. ‘The decision and

order of the Federal Communieations Commission

(J.A. 75-98) have not been officially reported, but

are unofficially reported at 18 Pike & Fischer, Radio

Regulation 107. °

JURISDICTION

The judgment of the court of appeals was entered

on June 30, 1960. The petition for a writ of cer-

tiorari was filed on September 9, 1960. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254

and 47 U.S.C. 402(j).

: (1)

a)

.

QUESTIONS PRESENTED

The Federal Communications Commission, prelimi-

nary to passing upon petitioner's s applications for, re-

newal of radio operator licenses, inquired of peti-

tioner whether he was or had ever been a mem-

ber of the Communist ‘Party or of any organization

advocating the violent overthrow of the United States

Government. An affirmative answer to-either ques-

tion would not have disqualified petitioner from. re-

ceiving a license; he still would have been entitled to a

full hearing on his application (with right to con-

frontation and cross-examination) in which scienter,

among other factors, would be relevant in determin-

ing whether a grant of license would serve the public

interest. The questions presented are:

1W hether the Commission Had power to ask these

questions pursuant to its authority under Section

303(1) of the Communications Act to preser ibe quali-

fications of radio operators and to issue licenses to

such United States citizens as it finds qualified.

2. Whether the First Amendment was violated by

the Cominission’s determination that, because of

petitioner’s failure to answer ‘these questions, it

lacked sufficient information on which to base a

finding that the grant of ‘petitioner's application

would serve the public interest. ,

STATUTES AND REGULATIONS INVOLVED -

The pertinent provisions of the Communications

Act of 1934 (48 Stat. 1064, as amended, 47 U.S.C.

151, et. seq.) and of the Commission's Rules and Reg-

ulations, in addition to those set forth in the ‘petition

(pp. 2-4), are set forth in the Appendix, | infra, pp.

99.95

—— “50.

STATEMENT

Petitioner, the pessessor of radio operator licenses

issued by the Federal, Communications Commission, is

employed as a technici ian by a Philadelphia radio

bfoadeasting station under the terms of a collective

bargaining agreement which provides that technicians

-may -be required to Hold, as a condition to continued

employment, a first class operator's license from the

Commission. On March 7, 1958, petitioner applied

for renewal of his first-class radiotele ‘phone and ra-

diotelegraph . licenses (J.A. 77, 22). ° The Commis-

sion, pursuant to Section 1.71(a) of its Rules (47

C.F.R. 1.71(a)), and in accordance with its estab-

lished policy where “it has occasion tg’suspect that an

individual applicant might seck to utilize the privi-

leges accorded him * * * to effeetuate his ‘political’

views through force and violence or * * * in a manner

inimical to the interests of the United States” (J.A.

85), wrote petitioner, on March 17, 1958, that tt

had “determined that it must have additional infor-

mation before taking action with respect to your

application” (J.A. 24). “Specifically he was requested

to answef, under oath, the following questions tdcA.

4}

1. Are you now or have you év'r been a member

of the Communist Party? If the answer is

yes, give dates of membership:

2. Are you, now or have you ever been a member

of any organization or group Ww hich advocates

4

or teaches the overthrow ‘of the Government

of the United States, or of any political sub-

division thereof, by force or violence? If the

answer is yes, list the organization or group

and give the dates of membership:

The Commission’s letter advised petitioner that he

could submit any additional statement or information

he might desire and that his failure to file the in-

formation requested would constitute grounds for the

- dismissal of his application -(J.A. 24-25).

On April 12, 1958, petitioner wrote the Commission

declining to answer ‘because “the Commission does

not have the legal authority to require the answers

to this questionnaire as a condition for renewal of

my license and, further, that it is an infringement of.

my constitutional rights” (J.A. 26).. The Commis-

sion replied, un April 21, 1958, that its authority to

make the inquiries stemmed from Section 3038(1) of

the Communications Act which empowered it not only

to prescribe technical qualifications of station opera-

tors, but in addition “to consider other factors which

have a reasonable relationship to the question of

whether the grant of an operator license to a particu-

lar individual would. serve ‘public convenience, inter-

‘est, or necessity’ (J.A. 27-28). The Commission

referred petitioner to its decision in a similar case,

Travis Lafferty (23 F.C.C. 761, 13 Pike & Fischer

Radio Regulation 641), stating the Commission’s po-

sition that such questions must be answered by appli-

eants to whom they are addressed:

In its April 21, 1958 letter, the Commission pro-

vided petitioner a further period within which to

o

submit the requested information and again advised

him that failure to respond to the questionnaire, or

to request a hearing, would result in dismissal of his

application pursuant to Section 1.71(d) of the Com-

mission’s Rules (J.A. 28-29). Petitioner again de-

clined to answer and repeated his request for a hear-

ing to “present in the appropriate form ‘my reasons

for refusal to answer the questionnaire” (J.A. 26;

R. t). By order of July 30, 1958, the Commission

designated petitioner’s application for hearing on the

following issues (J.A. 76):

(1) To determine whether Morton Borrow failed

to answer lawful questions with respéct to his

qualifications to be a licensee which the Com-

mission has directed him to answer under oath;

(2) To determine in the light of the evidence

adduced under Issue 1 whether Morton shee

possesses the necessary qualifications to hold

radio operator license.

Following full hearing procedures, the Hearing

Examiner issued an Initial Decision looking to dis-

-missal of petitioner’s application (J.A. 52-71). On

December 7, 1959, the Commission, after considera-

tion of exceptions ‘and. supporting brief (J.A. 76)

released its decision dismissing the application be-

cause of its inability to determine, in the absence of

the requested information, that a grant would serve

: the public interest (J.A, 75-98).

Reaffirming its conclusion in Lafferty, supra, that

the questions, as to membership in the Communist .

‘Party or in organizations advocating thé violent over-

threw of the Government are relevant to the qualifi-

|

-'*

cations of station operators under Section 303(1) of )

the Communications Act (J.A. 84-97), the Commis-

sion set forth its view as follows (J.A. 84-85) ©

The opportunities for untoward activity avail-

able to a licensee 2re so obvious and so appalling

as to scarcely require discussion. They range

from the inconvenience and damage attendant on

the sabotage of an individual station, the adverse

impact. of which on the national interest has been

judicially veeognized in [Didriksen v. PUL,

103 App. D.C. 17 (254 F. 2d 354) (1958) ],-

through the possibility of a ship’s operator send- .

ing or failing to send given messages with the

consequent danger to his vessel; to the very real

opportunity for the technician charged with the

operation of a commercial station in accordance

with the CONELRAD plan to deviate from that

plan and make his station a beacon for attacking

aireraft or missiles. These opportunities for gc-

tivities inimical to the public interest are the

“more insidious in that any individual act, al-

though it mignt lead to the exposure of its per-

petrator and the subsequent revocation of his

operating privilege, could in and of itself lead to

such devastation that any punitive action against

the. operator responsible would be totally dispro-

porticnate to the harm done..* * °.

The Commission explained (J.A. 86-87, 89, 95),

that petitioner's refusal to answer the questions did

not form the basis for an adverse finding as to his

‘character qualifications, but was significant only in-

_sofar as it deprived the Commission of facts neces-

sary for it to make the requisite statutory finding as

Pe r

-

‘

to whether the public interest would be served by a

‘grant of the application.

‘The Commission also emphasized that its decision

did not involve any determination as to whether an

applicant should be denied « renewal of his licenses

because of present or past membership in the Com-

munist Party or the organizations inquired about in

the questionnaire (J.A. 88). It stated (J.A. 88-81):

Had Borrow provided the requested information,

and had the Commission in the light of such in-

formation questioned whether the publi¢ interest

would be served by a grant of the licenses ap

plied for, a hearing upon appropriate issties

would have been required at which evidence

would have been taken, and at which Borrow

would have been accorded full opportunity te

present’ evidence and arguments appropriate lo

the issues. :

_At any such hearing, the Commission added (3.4

86), evidence that thé organizations foster or have

engaged in unlawful activities, and the applicant's

knowledge thereof, would be valid factors for consid-

eration. The Commission further stated that peti-

tioner’s failure ‘to allege good cause for refusing to

answer the questions as to membership in any cr-

ganization’ advocating the violent overthrow of th

Government would in itself warrant dismissal! of the

application (J.A. 97). .

On appeal, the court of appeals affirmed. The ma-

* jority held (Pet. App. 17-21) that the. questions in- °

volved are within the Commission’s authority, under

Section 303(1) of the Communications Act-and Sec-

S$.

tion 1.71 of the Commission's Rules, and pertinent to

the qualifications of radio operations in view of: the |

sensitive position such persons occupy in relation to 7

the national defense. The court found no procedural

defect in the proceedings or infringement of peti-

tioner’s First Amendment rights (Pet. App. ySE TEE

Judge Washington, dissenting (Pet. App. 22-24),

was of the view that the Commission lacked statutory

authority to ask the questions. |

ARGUMENT

The petition here presents a limited issue as to the

power of the Federal Communications C ommission,

preliminary to a full hearing upon an applicant's

qualifications to hold a radio operator's license in the

public interest, to ask him whether he is or was a

thember of the Communist Party or of any organize

tion advocating overthrow of the Government by force

or violence. No question is raised as to the proce-

dures at the hearing whieh would have been held on

the application had petitioner responded (which the

Commission has stated would have included *onfronta-

tion and cross-examination), or as to the substantive

standards whieh would govern approval or disap-

*proval of his application. Petitioner’s license was

denied solely because his failure to respond to the

inquiry deprived the Commission of information.

which it considered relevant in determining whether

a grant would se ‘e the public interest. The

court below correctly held that the questions were

relevant to a determination of an applicant's quali-

fications to operate a radio station in the public in-

9

terest and that no violation of the guarantees of the

First Amendment to the Constitution was involved.

1. Section 303(1) of the Communicationa Act, 47

U.S.C. 303(1), authorizes the Commission ‘from time

to time, as public convenience, interest, or necessity

requires” to “prescribe the qualifications of station

operators” and to issue operator’s licenses “to such

citizens of the United States as the Comniission finds

qualified.” Pursuant to this authority, and in keeping

with the purposes of “national defense” and of “pro-

moting safety of life and property” set forth in Sée-

tion 1 of the Act as bases for establishing the Com-

mission, it has prescribed that no license will be

issued until an applicant has successfully’ passed

technical examination “and is found qualified in re-

spect to citizenship, character, and physical condition”

(Section 1.71(a) of the Commission's Rules, App.

infra, p. 24).° In furtherance ‘of this responsibility

to insure that only qualified persons are licensed, the

Commission in recent years has asked the questions

in issue of a number of applicants. It has pursued

this course When it has had “reason -to believe or

suspect” that the applicant might utilize the license

privileges in a manner inconsisten’ with the public

interest (JA, 83, 85). See Communications <\ct,

Section 402, 47 U.S.C. 403; United States v. Morton

Salt Co., 338 U.S. 632, 642.

In view of the strategic positions occupied by

Commission-licensed radio operators and, the oppor-

tunities such a licens¢ affords to take action detri-

mental to the publie (supra, p. 6), the ques-

tions asked of petitioner are clearly relevant to a

determination of character qualifications. The first-

re

, 10

class radiotelephone and radiotelegraph licenses, for

which petitioner applied, afford access to employment

in a number of positions related to national defense

and public safety; frequently such employment per-

mits the licensee to be in sole- and unsupervised con-

trol of radio equipment .in his charge (J.A. 84).

“nr : > ‘

Moreover, the Commission’s Rules make first-class ra-

dio operators responsible for the technical operation

of the CONELRAD program and the instruction of

others in CONELRAD procedures (see, @.9., 47 C.F.R.

3.93 and 13.62).’

©

2. The question of Communist Party membership —

may be relevant to the “competency” or “fitness” of

a teacher (Beilan v. Board of Education, 357 U.S.

399, 405; Adler v. Board of Education, b42 U.S:

485, 193; Garner v. Los Angeles Boayd, 341 US.

716, .720), or the “reliability” of a subway operator

(Lerner v. Casey, 35% U.S. 468, 476). Just as a

“teacher who is organizing a Communist cell in a

schoolhouse or a subway conductor who is preparing

‘In 1951 Congress granted the President, .“‘in the interest

of national socWrity er defense,” broad authority to control

electromagnetic radiations (Section 606(c) of the Commu-

nications Act; Proclamation 2914, 15 F.R. 9029). The Presi-

dent, in turn, has delegated to .the Commission authority to

“prepar(e] and [put] into effect plans * * * t) minimize

the use of the electromagnetic radiations of [radio] stations,

in event of attack or ‘of imminent threat thereof, as an aid

to the navigation of hostile aircraft, guided missiles, and

other devices’ capable of ‘direct attack upon the United

S#ates” and authority to “issue appropriate rules, regula-

tions, orders, and instructions, and to take such other action

_ as may be necessary, to assure the timely and effective oper-

" ation of the nlans” (16 F.R. 12452, Secs. 1 and 4).

a as

ll

the transportation system for sabotage would plainly

be unfit for his job” (Beilan, supra, at 416), go also a

radio operator who is planning or instructing athers

in “acts of sabotage of any ‘vital media jeopardizes

highly important public interests” and is not qualified

to hold a license from the Commission. Didriksen v.

Federal Communications Commission, 254 F. 2d 354,

356 (C. A.D.C.). While: mere membership or past

membership in any of the organizations inquired into

“might not suffice to support a finding of disqualitica-

tion, such membership is relevant to a Commission

determination of qualification. Petitioner, having

“blocked from the beginning any inquiry into his .

Communist [or other organizational | activities, how-_

ever relevant to his present loyalty” (Beilan, supra, at

405), cannot object to the Commission's dismissal of

his application; his refusal to answer its inquiries

made it “impossible for the Commission to affirma-

tively find that a grant of such application is in the

publi¢ interest” (J.A. 84). See Lerner v. Casey, 35%

' - U8, 468, 475-478. This is particularly true since (as

in Lerner) the Commission had expressly informed

‘petitioner “that continued refusal might lead to his

|application’s] dismissal” (id. at 478).

The procedures for considering petitioner's appli-

cations, had he answered the Commission's inquiries,

raise no substantial question of due process and

distinguish this case from Kent v. Dulles, 357 U.S.

. . 116, and Greene v. McEtroy, 360 U.S. 474, where

this Court was unwilling to infer authority to insti-

tute the security program there involved from gen-

e . a

-

’ i

12

eral language delegating authority to the Secretaries:

of State and Defense. The Commission has not .

imposed a “political test’”’ on the granting of a license

or, as in Kent v. Dulles, supra, barred “innocent”

members of the Communist Party from holding”

licenses. On the contrary, it has stated that mem- :

bership in’ the Communist Party or in an organiza-

tion advocating overthrow of. the- Government by

violence was not automatically disqualifying and that

the significance of any affiliation would be appraised

'n the light of all relevant facts after full hearing

(J.A. 86, 88-89; Lafferty, supra, 23. F.C.C. at 765-

766). ‘Nor would petitioner be deprived of the tra-

ditional safeguards of confrontation and cross-exam-

ination at such hearing (J.A. 83, n. 1, R. 22; Lafferty,

23 F.C.C. at 770).? In the absence of procedures of

“questionable constitutionality” (Greene Vv. McElroy, ,

supra, 360 U.S. at 506), the express authority con-

ferred by Section 303(1) to determine the qualifica-

tions of operators in the light of the purpeses of the

Act confers ample power upon the Commission to ask .

the questions here at issue. }

*In- cases of this nature, the Commission requires the

applicant ‘‘to refute specifically only those matters on which

probative evidence Was already introduced” by Commission

counsel and holds the staff to the “most stringent stand-

ard of proof” (Dispatch, Inc., 15 Pike & Fischer R.R. 237,

244. 280). Section 402(d) of the Communications Act, 47

U.S.C. 402(d), infra, p. 22, assures petitioner of a copy of

the “order scught to be reviewed or enforced, the findings |

or report upon which it Is based, and the pleadings, evi-

dence, and proceedings before the agency” (28 U.S.C. 2112).

13

3. Contrary ‘to petitioner’s assertions (Pet. 5, 6-8,

10), the Commission has not failed over the years to

assert ‘its.authority to ascertain character qualifica-

tions, nor has it ever disclaimed such authority. Dur-

ing World War II, the Commission, by rule, required:

biographical information, including fingerprints and

photographs, from applicants for operator licenses -

(F.C.C. Order No. 75, 5 F.R. 2394 (1940))." © Sub-

sequently, the Commission “authorized a formal in-

quiry into any pertinent phase of the applicant's or

licensee’s qualifications to hold an operator's license

under wartime conditions demanding loyalty and in-

tegrity” (9 F.C.C. Annual Report 81-82 (1943) ) and

at the same time revised its application form to re-

quire submission of information bearing on any crimi-

nat record of convictions (including particularly con-

viction of specified crimes relating to lovalty), a re-

quirement still obtaining (J.A. 22-23). While some of

‘Even before this time, the, broadly phrased vperator-

licensing provisions of both the Radio Act of 1942, 37 Stat.

302, 303 and the Radio Act of 192T, 44 Stat. 11762, 1170, had

been administered on the assumptidn that character qualifica-

tions, where appropriate, could be imposed. See Hearings

before the House Committee on Merchant Marine and Fish-

eries on H.R. 13159, 65th Cong., 3d Sess., p- 144 (concerning

Department of Commerce Rey. 101); Rules vf the Federal

Radio Commission, as revised October 5, 1933 (pamphlet ed.

GPO 1934), Section 440. The present Commission's ‘failure

to adopt a provision ina 1928 proposed rule, requiring opera-

tors to be “physically, mentally, and morally capable of per-

forming duty” does not, as petitioner suggests (Pet. &).

show that the Commisston then believed it lacked authority

to adopt ‘such a rule; the provision was deleted without

explanation, and this may well have resulted from a deter-

mination that no such inquiry was then necessary.

(App. infra, pp. 24-25).

. a

these requirements were relaxed at the end of the war

(see 11 F.R,. 1218, 6685), the Commissidn has eon-

tinued to examine character qualifications on a case-

hy-case basis since that time. See John M. Moreno, 14

F.C.C. 424 (1950); Travis Lafferty, 23 F.C.C. 761;

Didriksen, 18 Pike & Fischer R.R. 425, affirmed,

Didriksen v,. Federal Communications Conimission,

supra. This practice? was codified as Section 1.71

of the Commission’s Rules in-1957 (22 F.R. 10981)

This history is not negated by Commission state-

ments that it lacked authority to suspend an oper-

ator’s license for any reasons other than those ex-

pressly set out in Section 303 (in) (1) of the Act (see,

‘e.g, Hearings before "the House Cominittee on Mer-

chant Marine and Fisheries, 76th Cong., Ist Sess., on

H.R. 3052, p. 2);* by its failure to adopt proposed

sules which would have disqualified present members

of the Communist Party ; or by its objections (set

‘Contrary to petitioner's suggestion (Pet. 11), there is

rio inconsistency between the existence of broad. power to

ascertain character qualifications in issuing or renewing

li¢enses, and lingfting suspension, during the license period,

to specified acts: In fact, the very limitation on the sus-

pension powers emphasizes the Commission's responsibility

in initially determining an applicant's qualifications to oper-

ate radio equipment in the public interest. :

>The Commissies.’s Proposed Report and Order in this

proceeding, upon which petitioner relies (Pef. 8), expressly

veattirms its authority to consider an applicant’s qualifications

(including lovalty factors) on >a case-by-case basis. See

1 Pike & Fischer R.R., Part I1,-p.\63:ix, at 63:x.

7

‘\

‘ 15

forth in a 1941 memorandum to the Congress) to

being obligated to undertake broad security functions

witich it believed other governmental agencies were

better equipped to handle. | Sve Hearings before a

Subcommittee of the Senate Committee on Commerce

on H.R. 5074, 77th Cong., Ist Sess:,.pp. 77-79. All of .

these positions are consistent with its exercise of au-

therity to consider matters bearing on a particular

applicant's loyalty or reliability in determining his

basie qualifications to be a licensee.

4. The legislative history of Section 303(1) does

not warrant. petitioner’s assertion (Pet. 8-10) that

Congress has made clear its intent to preclude the —

Comniission from ascertaining the character qualifiea-

tions (including loyalty factors) of applicants for

operators licenses. There is no relevant pre-enact-

"ment history with respect to the term “qualifications”

as used in Section 308 (1) of the Communications Act

of 1934 or in-its predecessor, Section 20 of the Radio

Act of 1927, 44 Stat. 1170. However, the draftsmen

of the original Radio Act of 1912 peesg mines that

Section 3 of that Act (37 Stat. 302, 303), providing

generally that radio apparatus shall" be in charge or

under the supervision of a person or persons licensed

for that purpose by the Secretary of Commerce and

Labor,” vested discretion in the Secretary to pre-

“seribe qualifications which “might go to his char-

acter” or “to any thing that, relates t to his general

efficiency.” (Hearings on 8. 3620 and S. 5334 before’

a-Subcommittee of the Senate Committee on -Com-

merce, 62d Cong., 2d Sess.: pp. 338-34).

16

The pést-enactment ‘egislative history of the Com-

munications Act does not support petitioner's view.

It is true that during consideration of several bitis

(in the immediate pre-war period) which would have

astablished comprehensive security systems governing

both issuance and suspension of operator licenses,

Congressman Ranispeck, and perhaps Congressman

Dirksen a8 well,” indicated a belief that the Commis-

sion had no right “to make inquiry about anything.

except the technical qualifications of radio operators”

(87 Cong. Rec. 6259; see Hearings on H.R. 2662

- before the House Committee on Merehant Marine and

Fisheries, 77th Cong., Ist Sess., p. 10).’ On the other

*The quoted Dirksen statement. Hearings on H.R. 2662

before the House Committee on Merchant Marine and Fish-

eries, 77th Cong., Ist Sess... p. 1. may well have becn

directed tothe Commissidn’s admittedly more restricted

poWers of suspension.

7 Of: all of the bills referred to by petitioner (HR. 10446.

76th Cong. ‘3d Sess., H.R. 2662, 77th Cong., Ist Sess.. HR

3364, 77th Cong. Ist Sess., and H.R. 5074, Tith Cong., Ist

Sess.) only H.R. 5074 was reported out of Committee. This

bili, as it passed the House, directed the Commission to dem

licenses to “subversive” persons and authorized susrension

on stich grounds. The provision seems to have stemmed, at

least in part, from a contemporaneous statement by the Com-

mission to the Hotse Committee on Appropriations that i

had never suspended onerator’s licenses on grounds of “sub-

versive activities :" that aside from citizenship data—inciad.

ing fingerprints and biographical information—-*t dit ne

then require operators to submit information bearing on suct

activities! an? that th» Commission did net have facilites t

make investigatiors of thousands of operator licens es ft

“subversive activites.” See Hearings befere the Subcomm.--

tee of the House Committee on Appropriations on the Inde-

pendent Offices Appropriation Bill for 1912, 77th Cong. ts

\

47

hand, in a 1937 amendment to the Act broadening the

“suspension provisions of Section 303(m) (50 Stat.

189, 190), the Senate Committet had made clear that

its bill “seeks so far as statutes may encompass this

end to assure the highest type of character and quall-

‘ tieation in the operators on ships of the United States”

(S. Rep.. No. 196, 75th Cong., lst Sess., p. 4).

The most significant post-enactment expression of

legislative intent in relation to the Commission's

power tinder Section 303(1) was made at the time

of amendment of that section in 1958 (72 Stat. 9S1).

A bill (sponsored by the Commission among others)

‘was offered to authorize the Cominission to exempt

from the citizenship requirements of 303(1) certain

Sess., pp. 658-660. ‘The Ramspecit statement, cited abowe, was

made. in connection with House debates on this bill. But

after the broad loyalty check function had been placed in

the hands of the Navy Department, rather than the Com-

mission, by the Conference Committee on the bill, Cen-

gressman. Bland, author of the origmal bill. and floor mans cer

for the conference bill. was of the view that “much of the

danger. in the merchant marine teday from subversive radio.

operators is due to the fact that the Federal Communications

Cammission has not in th. past used due diligénce in ch an-

ing out that nest of hornets” (87 Cong. Rec. 9625). The

statement by Admiral Hooper, cited by petitioner, was mor -

» that the Commission had no power to “tike awar oor

suspend their licenses” for subversive activities or charact r

defects, and the statement by Seeretary Stimson is only that

the “War Department is of the opinion that the powers of

the President and the Federal Communications Commission

_ are at present inadequate to deal properly with subvers s

elements in the maritime radio communication field.” Hear-

ings before a Subcommittee af the Senate Committe:

eames S|

Commene on H.R. 5078, Sith Cong, Ist Sess.. pp. 7.

--

18

holders of United States and foreign airplane pilot

certificates. In the House, an amendment was in-

serted to require the Commission to find “that secur-

ity conditions have been satisfied’* before waiving the

citizenship requirements. In opposing this provision,

the Commission stated (S. Rep. No, 2338, 85th Cong.,

2d Sess., p. 5):

The Commission has fete et interpreted pub-

lic interest as-encompassing duthority to examine

the character qualifications of persons seeking

radio operators licenses and, where infor mation

is brought to our attention which might. show

that the issuance of such license would jeopardize

- the security of the United States, as authorizing

this agency to refuse to issue such license. The

language proposed in this bill, without the lan-

guage italicized, is consistent With this view.

However, the italicized language, by requiring an

affirmative finding that security considerations’

have been: satisfied, would appear to place upon

the Commission a responsibility to require a com-

plete investigation of every applicant’s back-

ground preliminary to such finding.

* * * *

The present statute requiring a license be issued

-only upon a finding that its issuance is in the

public interest is sufficient to permit this Com-

mission te deny license applications in those cases

where security questions are involved, without

requiring it to undertake the responsibility of,

making affirmative findings with respect to the

security qualifications of each applicant which

comes before -it.

ee

19

°

As a result of this presentation, Congress deleted the’

requirement for an affirmative security clearance. In

explaining this action, the Senate Report stated (id.,

p. 3): ;

Under the provisions of the Federal Communi-

cations Act-of 1934, as amended, the Federal

Communications Commission is required to find,

with regard totevery license issued by it, that

the publie interest will be served thereby. J»

aking this finding, the Commission necessarily

must weigh the character qualifications of per-

sons secking radio operator licenses. - The com-

mittee desires to emphasize that this bill, as

amended, does not rélieve the Commission of this

affirmative responsibility. [Emphasis added. |

5. Petitioner’s assertion (Pet. 11-12) that the First

Amendment prohibits any governmental inquiry as to

Communist Party membership* js untenable. - The

fact -that “political affiliations” are “circumstances

ordinarily irrelevant to permissible subjects of gov+ ”

ernment, action, does not lead to the conclusion that

such circumstances are never relevant” (American

~ s9O.)

Communications Association vy, Douds, 339 U.S. 382,

~ Petitiowcr does not claim any constitutional bar to thie

inquiry a€ to membership in any gfoup or organizatter

advocating the, vielent overthrow of the "Government. Thi;

question, the Commission pointed out, was “directed solely

to unlawful activity” (J.A. 97) and. ther fore dees not

present any‘ issue as to whether “advocacy and teaching of

forciblesoverthrow as an abstract principle, divorced from

any effort to instigate action to that end.” would? be ao ver-

missible subject of Commission inquiry regardless. of its

lawfulness under the Smith Act (18 US.C. 2385) ¢f seq.)

Yates & United States, 354 U.S. 298, 218.

ae

391). The aim of the Commission’s inquiry is “not .

to penalize political beliefs” but to ascertain whether

petitioner is qualified to be licensed for “positions by

virtue of which [he] could, if evilly motivated, create

serious danger to the public safety” and,national de-

fense (Speiser v. Randall, 357 U.S. 513, 527). See

Beilan v. Board of Education, 357 U.S. 399, 405. The

First Amendment “does not require that he be per-

mitted to be the keeper of the arsenal” (American

Communications Association, supra, 339 U.S. at 412), -

or relieve him of the “obligations of frankness, candor

and cooperation” with respect to inquiries relevant

to his qualifications for a radic operator’s license

(Beilan, supra, 357 U.S. at 405). Federal Com-

munications. Commission v. WOKO, Inc.,' 329 USS.

223, 227. Thus, even if petitioner had a right to

refrain from ‘answering the questions, the Commission

was not obligated to grant the licenses in circum--

stances where the consequence of petitioner’s failure

was to disable the Commission from finding that peti-

tioncr had met the burden of establishing his quaiifi-

eation.

ei

21

CONCLUSION

The petition for a writ of certiorari should be

denied. —

Respectfully submitted.

J. LEE RANKIN,

Solicitor General.

ROBERT A. BICKS,

Assistant Attorney General.

RICHARD A. SOLOMON,

Aftorney.

JOHN L, FITZGERALD,

General Counset,

MAX D. PAGLIN, - |

Assistant General Counsel,

RUTH V. REEL,

Counsel, ae

Federal Contmunications Commission.

OCTOBER, 1960

99

-_——

APPENDIX

Additional pertinent provisions of the Communica-

tions Act of 1934 (48 Stat. 1064, as amended, 47

SC. 151, et seg.); are as follows: =

\

ee 402(d). Upon the filing of any such no-

LCE) of- appeal the Commission shall, not later

“that five days after the date of service upon it,

notify each person shown by the records of the

Commission to be interested in said appeal of the

filiwe and péndency of the same and shall there-

after permit any such person to inspect and

make copies. of said notice and statement of

reasons therefor at the office of the Commission

in the city of Washington. Within thirty days

after the filing of an appeal, the Commission

shall file with the court the record upon which

the order complained of was entered, as provided

in section 2112 of title 28, United States Code.

ow * « / u i

INQUIRY BY COMMISSION ON ITS OWN MOTION

Sec, 403. The Commission shall have full au-

thority and power at any time to institute an

inquiry, on its own motion, in any case and as to

any matter or thing concerning which complaint

is authorized to be made, to or before the Com-

mission by any, provision of this Act, or con-

cerning whieh any question may arise under any

of the provisions of this Act, or relating to the

enforcement of any of the provisions of this Act.

The Commission shall have the. same powers and *

authority to proceed with any inquiry insti? ‘ted

on its own motion as though it had bee = ap-

pealed to ty complaint or petition unde. any

of the provisions of this Act, including the power

oo

ad

23

to make and enforce any order or orders in the

‘ease, or relating to the matter or thing concern-

ing which the inquiry is had, excepting orders

for the payment of money.

* * * *

See. 606(c). Upor proclamation by the Presi-

dent that there exists war or a threat: of war,

or a state of public peril or disaster ‘or other

national emergency, or.in order to preserve the

neutrality of -the United States, the President,

if he deems it necessary in the interest of na-

tional security or defense, may suspend 6r

amend, for such time as he may see fit the rules

and regulations applicable to any or all stations

or devices capable of emitting electromagnetic

radiations within the jurisdiction ef the United

States as prescribed by the Commission, and

may cause the closing of any station for radio

communication, or any device capable of emitting

electromagnetic radiations between 10 kilocycles

and 100,000 megacycles, which is suitable for use

as a navigational aid beyond five miles, and the

removal therefrom of its apparatus and. equip-

ment, or he may authorize the use or contro! of

ahy such station or device and or its apparatus

and equipment, by any department of the Gov-

ernment under such regulations as he may pre-

scribe upon just compensation to the owners.

The authority granted to the President, under

this subsection, to cause the closing of any sta-

tion or device and the removal therefrom of its

apparatus and equipment, or to authorize the

use or control.of any station or device and or

‘its apparatus and equipment, may be exercised

in the Canal Zone.

£ od * .

ys

Additional pertinent provisions of the Commission's

Rules and Regulations (47 C.F.R. 1.71) are as fol-

lows: : ,

es

See. 1.71. Procedure with respect to commer-

cial radio operator license applications. (a)

Upon acceptance for filing of an application for

a new commercial operator license, an examina-

tion °» conducted, where required, by the field

" office with which the appligation is filed in ac- —

cordance with Part 13 of this chapter. If appli-

cant passes the examination and is found quali- -

fied in respect to citizenship, character, and

‘physical condition, the license will be issued.

Where doubts as to citizenshipr“theaxacter, or

physic-+ condition arise, the application is re-

ferred td the Commission’s Inspection and Exam-

‘nation Division, Field Engineering and Moni-

toring Bureau, Washington, D. C., for considera-~

tion. ‘If it appears that further information is

required to determine the applicant’s qualifica-

tions or that a grant of the application will not

serve the public interest,.the applieant will be

notified in writing and given an opportunity to

furnish such written showings as the Commis-

sion may request and as the applicant may desiré

to submit. If, from the information furnished,

it does not appear that the applicant is quali-

Ged or that the, public interest would be served

‘by a grant of the application, the applicant will

he advised thereof in writing and given the op-

portunity to request, within the period of time to

he specified in such writing, that the applica-

tien be set for hearing, In case of failure

timely to request such hearing, the application

will be denied. —

a eee

.

Se

23

(b) Where an examination is not required, the

application will be handled with respect to other

matters in accordance ‘with the procedure in

paragraph (a) of this section.

(c) Applications for renewal of license after

acceptance for filing are handled in accordance

with the procedure contained in paragraph (a)

of this section, except that no examination Is

required unless the circumstances as set forth

in $13.28 of this chapter exist,.in which case

-a renewal examination will be required.

(d) Failure to prosecute an application, or fail-

ure to respond to official correspondence or re-

quest for additional information, will be cause

for dismissal... Such dismissal will be’ without

prejudice where an application has not yet been

designated for hearing; such dismissal may be

made with prejudice after an application has

. been designated for hearing.