# brief for the federal communication — Borrow v. Federal Communications Commission (No. 403) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0596%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** brief for the federal communication - **Published:** January 1, 1960 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0596%3A3. Public record. Not legal advice.