142 F.2d 909 (4th Cir. 1944), 5062, American Chain & Cable Co. v. Federal Trade Commission

Docket Nº:5062.
Citation:142 F.2d 909
Case Date:May 29, 1944
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 909

142 F.2d 909 (4th Cir. 1944)




No. 5062.

United States Court of Appeals, Fourth Circuit.

May 29, 1944

Page 910

Sumner S. Kittelle, of Washington, D.C. (Feldman, Kittelle, Campbell & Ewing, of Washington, D.C., on the brief), in support of petition.

Walter B. Wooden, Asst. Chief Counsel, Federal Trade Commission, of Washington, D.C., in opposition to petition.

Before PARKER, SOPER, and NORTHCOTT, Circuit Judges.

PARKER, Circuit Judge.

On January 1, 1944, this Court entered its decree affirming and enforcing an order of the Federal Trade Commission which directed the American Chain & Cable Company, Inc., and certain other manufacturers of wire rope, hereinafter referred to as petitioners, to cease and desist from certain unfair trade practices found to be in violation of section 5 of the Federal Trade Commission Act. 15 U.S.C.A. § 45. The order directed that the petitioners 'do forthwith cease and desist from continuing, entering into, or carrying out any agreement, understanding, combination or conspiracy, and from continuing, entering into, or carrying out any agreement, understanding, combination or conspiracy, and from continuing or cooperating in any agreed or planned common course of action, between or among any two or more of said respondents, or between any one or more of said respondents or between any one or more of said respondents and any person, association or corporation not a party to this order, to do or perform any of the following acts or things '. The acts prohibited by the order include fixing the prices or conditions of sale of wire rope to dealers, distributors and users thereof, establishing and maintaining territorial delivered price zones, and making sales upon a delivered price basis under a zone system whereby the cost to all customers of any particular class is made identical to all destinations within a particular zone.

Before the order of the Commission became final under 15 U.S.C.A. § 45(g)(2), the petitioners filed a motion with the Commission

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asking that, on account of war conditions, the enforcement of the order be stayed until after the war and stating that recommendations to that effect from the War Production Board and proper officers of the War and Navy Departments had been applied for and that assurances had been received that the recommendations would be made. The petition asked, also, that the Commission join in a request for the modification of the order of this Court, if of opinion that the prayer of the petition should be granted. The Commission, however, declined to entertain the motion on the ground that neither the Commission nor this Court had power to stay the enforcement of the order at that stage of the proceedings. The petitioners then filed a petition with the Court asking that the Commission be required to show cause why it should not consider and decide on its merits the motion filed by petitioners after receiving and considering such recommendations as might be filed by the War and Navy Departments. At the hearing on the petition here, it was stated that on March 31st petitioners filed with the Commission a certificate to the effect that they would comply with its order. A subsequent memorandum states that the War and Navy Departments have filed recommendations with respect to staying the enforcement of the order.

Three questions are presented by the motion before us: (1) whether there is power in the Commission to modify or stay the enforcement of the order which has been affirmed by the Court; (2) whether the Court has power to direct the Commission to consider the motion of petitioners directed to that end; and (3) whether the circumstances here warrant the giving of such direction to the Commission. We think that all of these questions should be answered in the affirmative.

Orders of the Commission, like most administrative orders, ordinarily have relation to the future and not to the past; and with the passage of time their provisions may be rendered inappropriate by changing conditions. In such cases, provision is made that the orders may be modified or vacated. Section 5 of the Trade Commission Act, 15 U.S.C.A. § 45(b), provides: 'After the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time, the Commission may at any time, after notice and opportunity for hearing, reopen and alter, modify, or set aside, in whole or in part, any report or order made or issued by it under this section, whenever in the opinion of the Commission conditions of fact or of law have so changed as to require such action or if the public interest shall so require: Provided however, That the said person,...

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