343 U.S. 451 (1952), Public Utilities Commission v. Pollak

Citation:343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068
Party Name:Public Utilities Commission v. Pollak
Case Date:May 26, 1952
Court:United States Supreme Court

Page 451

343 U.S. 451 (1952)

72 S.Ct. 813, 96 L.Ed. 1068

Public Utilities Commission



United States Supreme Court

May 26, 1952




A street railway company in the District of Columbia, whose service and equipment are subject to regulation by the Public Utilities Commission of the District of Columbia, receives and amplifies radio programs through loudspeakers in its streetcars and busses. The programs consist generally of 90% music, 5% announcements, and 5% commercial advertising. The Commission, after an investigation and public hearings disclosing substantial grounds for doing so, concluded that the radio service is not inconsistent with public convenience, comfort and safety; and permitted it to continue despite protests of some passengers that their constitutional rights are thereby violated.

Held: Neither the operation of the radio service nor the action of the Commission permitting its operation is precluded by the Federal Constitution. Pp. 453-466.

1. Upon review of the Commission's decision, the courts are expressly restricted by statute to the facts found by the Commission, insofar as those findings do not appear to be unreasonable, arbitrary or capricious. Pp. 458-460.

2. Apart from the constitutional issues, the order of the Commission dismissing its investigation was in accord with its prescribed statutory procedure and within the discretion properly vested in the Commission by Congress. Pp. 460-461.

(a) It is within the statutory authority of the Commission to prohibit or to permit and regulate the receipt and amplification of radio programs under such conditions that the total utility service shall not be unsafe, uncomfortable or inconvenient. P. 461.

3. This Court finds it appropriate to examine into what restriction, if any, the First and Fifth Amendments place upon the Federal Government under the facts of this case, assuming that the action of the street railway company in operating the radio service, together with the action of the Commission in permitting

Page 452

such operation, amounts to sufficient Federal Government action to make the First and Fifth Amendments applicable thereto. Pp. 461-463.

(a) The First and Fifth Amendments apply to and restrict only the Federal Government, and not private persons. P. 461.

(b) In finding a sufficiently close relation between the Federal Government and the radio service to make it necessary to consider the First and Fifth Amendments, this Court relies particularly upon the fact that the Commission, an agency authorized by Congress, ordered an investigation of the radio service and, after formal public hearings, ordered its investigation dismissed on the ground that the public safety, comfort and convenience were not impaired thereby. P. 462.

4. The Commission did not find, and the testimony does not compel a finding, that the radio programs interfered substantially with the conversation of passengers or with rights of communication constitutionally protected in public places; nor is there any substantial claim that the programs have been used for objectionable propaganda. P. 463.

5. The radio programs do not invade rights of privacy of the passengers in violation of the Fifth Amendment. Pp. 463-465.

(a) The Fifth Amendment does not secure to each passenger on a public vehicle regulated by the Federal Government a right of privacy substantially equal to the privacy to which he is entitled in his own home. P. 464.

(b) In its regulation of streetcars and busses, the Federal Government is not only entitled, but is required, to take into consideration the interests of all concerned. P. 464.

(c) Where a regulatory body has jurisdiction, it will be sustained in its protection of activities in public places when those activities do not interfere with the general public convenience, comfort and safety. Pp. 464-465.

(d) The supervision of such practices by the Public Utilities Commission in the manner prescribed in the District of Columbia meets the requirements both of substantive and procedural due process when it is not arbitrarily and capriciously exercised. P. 465.

(e) The personal liberty which is protected by the Fifth Amendment does not permit an objector to override the preference of the majority of the other passengers and the regulatory body's finding, upon hearing and evidence, that the radio service was consistent with the public convenience, comfort and safety. P. 465.

Page 453

(f) The question of the desirability of the radio service is a matter for decision between the street railway company, the public and the Commission. P. 465.

6. Since the radio programs containing music, commercial advertising and other announcements are constitutionally permissible, it is clear that programs limited to a like type of music alone would not be less so. Pp. 465-466.

89 U.S.App.D.C. 94, 191 F.2d 450, reversed.

An appeal from an order of the Public Utilities Commission of the District of Columbia was dismissed by the District Court. The Court of Appeals partially reversed the judgment and directed that the Commission's order be vacated. 89 U.S.App.D.C. 94, 191 F.2d 450. This Court granted certiorari. 342 U.S. 848. Reversed, p. 466.

BURTON, J., lead opinion

MR. JUSTICE BURTON delivered the opinion of the Court.

The principal question here is whether, in the District of Columbia, the Constitution of the United States precludes a street railway company from receiving and amplifying radio programs through loud speakers in its passenger vehicles under the circumstances of this case.

Page 454

The service and equipment of the company are subject to regulation by the Public Utilities Commission on the District of Columbia. The Commission, after an investigation and public hearings disclosing substantial grounds for doing so, has concluded that the radio service is not inconsistent with public convenience, comfort and safety and "tends to improve the conditions under which the public ride." The Commission, accordingly, has permitted the radio service to continue despite vigorous protests from some passengers that to do so violates their constitutional rights. For the reasons hereafter stated, we hold that neither the operation of the service nor the action of the Commission permitting its operation is precluded by the Constitution.

The Capital Transit Company, here called Capital Transit, is a privately owned public utility corporation, owning an extensive street railway and bus system which it operates in the District of Columbia under a franchise from Congress.1 Washington Transit Radio, Inc., here called [72 S.Ct. 817] Radio, also is a privately owned corporation doing business in the District of Columbia. Both are petitioners in No. 224.

Page 455

In March, 1948, Capital Transit experimented with "music as you ride" radio programs received and amplified through loud speakers in a streetcar and in a bus.2 Those vehicles were operated on various lines at various hours. A poll of passengers who heard the programs showed that 92% favored their continuance. Experience in other cities was studied.3 Capital Transit granted Radio the exclusive right to install, maintain, repair and use radio reception equipment in Capital Transit's streetcars, busses, terminal facilities, waiting rooms and division headquarters. Radio, in return, agreed to contract with a broadcasting station for programs to be received during a minimum of eight hours every day, except Sundays. To that end, Radio secured the services of Station WWDC-FM. Its programs were to meet the specifications stated in Capital Transit's contract.4 Radio agreed to pay Capital Transit, after a 90-day trial, $6 per month per radio installation, plus additional

Page 456

compensation dependent upon the station's receipts from sources such as commercial advertising on the programs. In February, 1949, when more than 20 installations had been made, the service went into regular operation. At the time of the Commission's hearings, October 27-November 1, 1949, there were 212. On that basis, the minimum annual payment to Capital Transit came to $15,264. The potential minimum would be $108,000, based upon 1,500 installations. The contract covered five years, with an automatic five-year renewal in the absence of notice to the contrary from either party.

This proceeding began in July, 1949, when the Commission, on its own motion, ordered an investigation. 37 Stat. 983, D.C.Code, 1940, §§ 43-408 through 43-410. The Commission stated that Capital Transit had embarked upon a program of installing radio receivers in its streetcars and busses, and that a number of protests against the program had been received. Accordingly, the Commission was ordering an investigation [72 S.Ct. 818] to determine whether the installation and use of such receivers was "consistent with public convenience, comfort and safety." Radio was permitted to intervene. Pollak and

Page 457

Martin, as protesting Capital Transit passengers, also intervened, and they are the respondents in No. 224.

The Commission concluded

that the installation and use of radios in streetcars and busses of the Capital Transit Company is not inconsistent with public convenience, comfort, and safety,

and dismissed its investigation. 81 P.U.R., N.S., 122, 126. It denied reconsideration. 49 Stat. 882, D.C.Code, 1940, § 43-704. Pollak and Martin appealed to the United States District Court for the District of Columbia. 49 Stat. 882-884, D.C.Code 1940, §§43-705 through 43-710. John O'Dea, as People's Counsel, Capital Transit Company and Washington Transit Radio, Inc., were granted leave to intervene. That appeal was dismissed, but Pollak and Martin took the case to the Court of Appeals. 49 Stat. 883, D.C.Code 1940, § 43-705. That court partially reversed the judgment of the District Court and gave...

To continue reading