United States v. AMERICAN SOCIETY OF COMPOSERS, AUTH. & PUB.

• Decision Date: 07 May 1963
• Docket Number: Docket 28086.,No. 317,317
• Citation: 317 F.2d 90
• Parties: UNITED STATES of America, Plaintiff, v. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, Defendant-Appellee. Application of SHENANDOAH VALLEY BROADCASTING, INC., et al., Petitioners-Appellants, for the Determination of Reasonable License Fees.
• Court: U.S. Court of Appeals — Second Circuit

317 F.2d 90 (1963)

UNITED STATES of America, Plaintiff, v. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, Defendant-Appellee Application of SHENANDOAH VALLEY BROADCASTING, INC., et al., Petitioners-Appellants, for the Determination of Reasonable License Fees.

No. 317, Docket 28086.

United States Court of Appeals Second Circuit.

Argued April 10, 1963.

Decided May 7, 1963.

Walter R. Mansfield, New York City, (Donovan, Leisure, Newton & Irvine, New York City, Ralstone R. Irvine and Helmut F. Furth, New York City, of counsel), for petitioners-appellants.

Arthur H. Dean, New York City, (William Piel, Jr., Herman Finkelstein, New York City, Lloyd N. Cutler, (Wilmer, Cutler & Pickering), Washington, D. C., and Frederick A. Terry, Jr., New York City (Sullivan & Cromwell), New York City, of counsel), for respondent-appellee.

Joel E. Hoffman, Washington, D. C., (Lee Loevinger, Asst. Atty. Gen., Robert B. Hummel, Atty.), for the United States.

Before MOORE, FRIENDLY and HAYS, Circuit Judges.

FRIENDLY, Circuit Judge.

On March 14, 1950, the District Court for the Southern District of New York entered an amended consent decree in an action brought by the United States against the American Society of Composers, Authors and Publishers (ASCAP) under the Sherman Act.¹ The decree provided, inter alia, that ASCAP must "grant to any user making written application therefor a non-exclusive license to perform all of the compositions in the ASCAP repertory," and that "ASCAP shall, upon receipt of a written application for a license for the right of public performance of any, some or all of the compositions in the ASCAP repertory, advise the applicant in writing of the fee which it deems reasonable for the license requested." If the parties were unable to agree upon a reasonable fee, the applicant might move the District Court to fix one. ASCAP was bound to notify the Attorney General of any such motion, and had the burden "to establish the reasonableness of the fee requested by it."

Pursuant to these provisions, television stations have had a choice between two types of licenses to use ASCAP music on all their local (i. e., non-network) programs — a "blanket" license, under which they pay a fee based on the revenues from the entire group of programs covered by the license, and a "perprogram" license, under which the fee is based only on revenues from those programs which actually use ASCAP music. In the fall of 1961 Shenandoah Valley Broadcasting, Inc., and the owners and operators of 363 other television stations applied to ASCAP for a new type of license that would cover only programs produced by them and would exclude not only network programs (which had always been excluded) but also prerecorded program material furnished by independent film producers — who would thus be obliged to make their own arrangements with ASCAP. ASCAP took the position that it was not obliged to grant this new form of license. After proceedings in the District Court, all conducted under the title of the original anti-trust suit, Chief Judge Ryan concluded that the amended consent decree did not give the applicants a right to the type of license requested, that the relief sought by them could be had only by an amendment of the decree "after hearings on a petition for such relief by a party to the suit," and that they were not parties to the suit.

On October 10, 1962, judgment dismissing the application was entered; on December 7, 1962, applicants filed notices of appeal both to the Supreme Court, apparently pursuant to § 2 of the Expediting Act, 32 Stat. 823 (1903), as amended, 15 U.S.C. § 29, 49 U.S.C. § 45, and to this Court. ASCAP promptly moved the Supreme Court to dismiss or affirm; the motion did not assert that the appeal should properly have been taken here.² On January 14, 1963, the Supreme Court entered a per curiam memorandum, 371 U.S. 540, 83 S.Ct. 519, 9 L.Ed.2d 508, reading:

"The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction.

"MR. JUSTICE BLACK is of the opinion that probable jurisdiction should be noted."

Two months later ASCAP moved to dismiss the appeal to this Court for want of appellate jurisdiction; we directed that the motion be argued along with the merits. The United States, taking no position on the merits, supported the motion to dismiss. We think the motion must be granted.

Section 2 of the Expediting Act provides that "In every civil action brought in any district court of the United States" under the Sherman Act "or any other Acts having a like purpose * * *, wherein the United States is complainant, an appeal from the final judgment of the district court will lie only to the Supreme Court." 49 U.S.C. § 45. The judgment here sought to be appealed from was entered in a "civil action brought in a district court of the United States" under the Sherman Act, "wherein the United States is complainant." There would be no profit to appellants in an argument that the judgment dismissing their motion to fix license fees was not a "final judgment of the district court." For our own jurisdiction under 28 U.S.C. § 1291 is limited to "appeals from all final decisions of the district courts of the United States"; the Supreme Court has indicated, as we should have assumed in any event, that the standard of finality under the two statutes is the same, Brown Shoe Co. v. United States, 370 U.S. 294, 306-309, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962), so that if the judgment is not sufficiently "final" to warrant an appeal to the Supreme Court, it equally does not qualify under 28 U.S.C. § 1291; and the appeal is within none of the exceptions to the rule of finality provided in 28 U.S.C. § 1292. Moreover, the Expediting Act has been authoritatively construed not only to route appeals from all final judgments directly to the Supreme Court³ but to forbid interlocutory appeals. In United States v. California Co-op. Canneries, Inc., 279 U.S. 553, 558, 49 S.Ct. 423, 425, 73 L.Ed. 838 (1929), after summarizing the "previous opportunities for delay" incident to appeal first to the Court of Appeals and then to the Supreme Court — the mischief at which the Expediting Act was aimed, Mr. Justice Brandeis said:

"Thus, Congress limited the right of review to an appeal from the decree which disposed of all matters * * * and it precluded the possibility of an appeal to either court from an interlocutory decree."

Later, United States Alkali Export Ass'n v. United States, 325 U.S. 196, 201-202, 65 S.Ct. 1120, 89 L.Ed. 1554 (1945), and De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945), held that interlocutory orders of the district court in suits subject to the Expediting Act can be reached by extraordinary writs under 28 U.S.C. § 1651 issued by the Supreme Court, where "sole appellate jurisdiction lies," 325 U.S. at 202, 65 S.Ct. 1120, 89 L.Ed. 1554 — even when, as in the De Beers case, the order was a preliminary injunction ordinarily reviewable by a court of appeals under 28 U.S.C. § 1292(a) (1). See also Hart & Wechsler, The Federal Courts and the Federal System (1953), at 1372.

Neither are appellants assisted by the two court of appeals decisions on which they rely. Our own decision in United States v. St. Regis Paper Co., 285 F.2d 607, 609-611 (2 Cir., 1960), aff'd, 368 U.S. 208, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961), is inapposite. That was a suit by the United States under § 9 of the Federal Trade Commission Act, 15 U.S. C. § 49, for a mandatory injunction commanding a corporation to furnish reports to the Commission under § 6(b) of the Act, and for assessment of the penalties provided in § 10 for failure to do that. We held that although the Federal Trade Commission Act was an act "having a like purpose" to the Sherman Act, it would be unreasonable to read the Expediting Act "to require a clear path from the district court to the Supreme Court of the United States" in an action that was merely a part of the investigatory stages preliminary to a Commission proceeding, any final order in which would be directly reviewable only in a court of appeals. The other case is Magee-Hale Park-O-Meter Co. v. Vehicular Parking, Limited, 180 F.2d 897, 900 (3 Cir., 1950). There a Government anti-trust suit against Vehicular Parking had resulted in a district court decree, comparable to the one here, requiring the defendant to license its patents for reasonable royalties; subsequently, Magee-Hale had intervened in that suit and moved for summary judgment declaring the patents invalid. Meanwhile, Magee-Hale brought a separate action against Vehicular Parking seeking a judgment declaring the same patents invalid, and the Court of Appeals affirmed the dismissal of this action on the ground that the issue could be determined in the pending anti-trust suit. In the course of its opinion, the court of appeals said that if the district court, having denied or dismissed the motion for summary judgment, proceeded to fix reasonable royalties to be paid by Magee-Hale under the compulsory-licensing provision of the decree, "An appeal from such an order, if taken by Magee-Hale, will search the record and give to this court jurisdiction to test the validity of the order denying or dismissing Magee-Hale's motion for a summary judgment declaring the patents invalid." It is wholly unrealistic to take this remark as a considered determination that, despite the plainly contrary implications of Terminal R. R. Ass'n v. United States, 266 U.S. 17, 28, 45 S.Ct. 5, 69 L.Ed. 150 (1924), such an appeal would lie to the court of appeals rather than to the Supreme Court. Prompted by a question from the bench, counsel for ASCAP have furnished us with copies of the briefs in Magee-Hale; they reveal no discussion of that issue, which, indeed, was hardly relevant. As our own experience has shown, United States v. New York, N. H. & H. R. R., 276 F.2d 525, 537 (2 Cir.), cert. denied, 362 U.S. 961...