309 U.S. 134 (1940), 265, Federal Communications Commission v. Pottsville Broadcasting Co.

Docket Nº:No. 265
Citation:309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656
Party Name:Federal Communications Commission v. Pottsville Broadcasting Co.
Case Date:January 29, 1940
Court:United States Supreme Court

Page 134

309 U.S. 134 (1940)

60 S.Ct. 437, 84 L.Ed. 656

Federal Communications Commission


Pottsville Broadcasting Co.

No. 265

United States Supreme Court

Jan. 29, 1940

Argued January 11, 1940




1. A lower court's interpretation of its own mandate does not bind this Court. P. 141.

2. The opinion discusses the differences of origin and function between the judicial and the administrative processes, and the relation of the one to the other in matters of substance and procedure where administrative rulings are subject to judicial review on errors of law. P. 141.

3. Under the Federal Communications Act of 1934, the Communications Commission, in passing upon an application for a permit to construct a broadcasting station, must judge by the standard of public convenience, interest, and necessity. Pp. 137, 145.

4. The Act empowers the Commission to adopt rules of procedure applicable in ascertaining whether the granting of an application for a permit to erect a broadcasting station would be in the public interest. P. 138.

5. Under this Act, upon review by the Court of Appeals for the District of Columbia of a decision of the Commission denying an application for such a permit, the court has authority to correct errors of law and, upon remand, the Commission, is bound to accept such correction. P. 145.

6. But where the Commission denied an application for such a permit and, upon appeal to the Court of Appeals for the District of Columbia, the ruling was reversed because of error of law and the case sent back for further proceedings, the Commission was free to reconsider the application, together with other applications filed subsequently, to determine which, on a comparative basis, would best serve the public interest, and the Court

Page 135

of Appeals was without authority by its mandate and by writ of mandamus to forbid this and to require a rehearing of the first application on the record as originally made. P. 145.

70 App.D.C. 157; 105 F.2d 36, reversed.

Certiorari, 308 U.S. 535, to review an order which granted a writ of mandamus requiring the above-named Commission and its members (a) to set aside its order denying an application of the present respondent and assigning it for rehearing, with other applications for the same broadcasting facilities, and (b) to hear and reconsider the respondent's application on the basis of the record as originally made up when its application was first decided adversely by the Commission and brought before that court on appeal. See 98 F.2d 288.

Page 136

FRANKFURTER, J., lead opinion

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

The court below issued a writ of mandamus against the Federal Communications Commission, and, because important issues of administrative law are involved, we brought the case here. 308 U.S. 535. We are called upon to ascertain and enforce the spheres of authority which Congress has given to the Commission and the courts, respectively, through its scheme for the regulation

Page 137

of radio broadcasting in the Communications Act of 1934, c. 652, 48 Stat. 1064, as amended by the Act of May 20, 1937, c. 229, 50 Stat. 189, 47 U.S.C. § 151 et seq.

Adequate appreciation of the facts presently to be summarized requires that they be set in their legislative framework. In its essentials, the Communications Act of [60 S.Ct. 439] 1934 derives from the Federal Radio Act of 1927, c. 169, 44 Stat. 1162, as amended, 46 Stat. 844. By this Act, Congress, in order to protect the national interest involved in the new and far-reaching science of broadcasting, formulated a unified and comprehensive regulatory system for the industry.1 The common factors in the administration of the various statutes by which Congress had supervised the different modes of communication led to the creation, in the Act of 1934, of the Communications Commission. But the objectives of the legislation have remained substantially unaltered since 1927.

Congress moved under the spur of a widespread fear that, in the absence of governmental control, the public interest might be subordinated to monopolistic domination in the broadcasting field. To avoid this, Congress provided for a system of permits and licenses. Licenses were not to be granted for longer than three years. Communications Act of 1934, Title iii, § 307(d). No license was to be "construed to create any right, beyond the terms, conditions, and periods of the license." Ibid., § 301. In granting or withholding permits for the construction of stations, and in granting, denying modifying or revoking licenses for the operation of stations, "public

Page 138

convenience, interest, or necessity" was the touchstone for the exercise of the Commission's authority. While this criterion is as concrete as the complicated factors for judgment in such a field of delegated authority permit, it serves as a supple instrument for the exercise of discretion by the expert body which Congress has charged to carry out its legislative policy. Necessarily, therefore, the subordinate questions of procedure in ascertaining the public interest, when the Commission's licensing authority is invoked -- the scope of the inquiry, whether applications should be heard contemporaneously or successively, whether parties should be allowed to intervene in one another's proceedings, and similar questions -- were explicitly and by implication left to the Commission's own devising, so long, of course, as it observes the basic requirements designed for the protection of private as well as public interest. Ibid., Title I, § 4(j). Underlying the whole law is recognition of the rapidly fluctuating factors characteristic of the evolution of broadcasting and of the corresponding requirement that the administrative process possess sufficient flexibility to adjust itself to these factors. Thus, it is highly significant that, although investment in broadcasting stations may be large, a license may not be issued for more than three years, and, in deciding whether to renew the license, just as in deciding whether to issue it in the first place, the Commission must judge by the standard of "public convenience, interest, or necessity." The Communications Act is not designed primarily as a new code for the adjustment of conflicting private rights through adjudication. Rather, it expresses a desire on the part of Congress to maintain, through appropriate administrative control, a grip on the dynamic aspects of radio transmission.2

Page 139

[60 S.Ct. 440] Against this background, the facts of the present case fall into proper perspective. In May, 1936, The Pottsville Broadcasting Company, respondent here, sought from the Commission a permit under § 319 Ibid., Title iii, for the construction of a broadcasting station at Pottsville, Pennsylvania. The Commission denied this application on two grounds: (1) that the respondent was financially disqualified, and (2) that the applicant did not sufficiently represent local interests in the community which the proposed station was to serve. From this denial of its application, respondent appealed to the court below. That tribunal withheld judgment on the second ground of the Commission's decision, for it did not deem this to have controlled the Commission's judgment. But, finding the Commission's conclusion regarding the respondent's lack of financial qualification to have been based on an erroneous understanding of Pennsylvania law, the Court of Appeals reversed the decision and ordered the "cause . . . remanded to the . . . Communications Commission for reconsideration in accordance with the views expressed." Pottsville Broadcasting Co. v.

Page 140

Federal Communications Commission, 69 App.D.C. 7, 98 F.2d 288.

Following this remand, respondent petitioned the Commission to grant its original application. Instead of doing so, the Commission set for argument respondent's application along with two rival applications for the same facilities. The latter applications had been filed subsequently to that of respondent, and hearings had been held on them by the Commission in a consolidated proceeding, but they were still undisposed of when the respondent's case returned to the Commission. With three applications for the same facilities thus before it, and the facts regarding each having theretofore been explored by appropriate procedure, the Commission directed that all three be set down for argument before it to determine which, "on a comparative basis," "in the judgment of the Commission, will best serve public interest." At this stage of the proceedings, respondents sought and obtained from the Court of Appeals the writ of mandamus now under review. That writ commanded the Commission to set aside its order designating respondent's application "for hearing on a comparative basis" with the other two, and "to hear and reconsider the application" of The Pottsville Broadcasting Company "on the basis of the record as originally made and in accordance with the opinions" of the Court of Appeals in the original review (69 App.D.C. 7, 98 F.2d 288), and in the mandamus...

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