345 F.2d 278 (2nd Cir. 1965), 499, Lafayette Radio Electronics Corp. v. United States

Docket Nº499, 29678.
Citation345 F.2d 278
Party NameLAFAYETTE RADIO ELECTRONICS CORPORATION, Petitioner, v. The UNITED STATES of America and the Federal Communications Commission, Respondents.
Case DateApril 26, 1965
CourtUnited States Courts of Appeals, Court of Appeals for the Second Circuit

Page 278

345 F.2d 278 (2nd Cir. 1965)

LAFAYETTE RADIO ELECTRONICS CORPORATION, Petitioner,

v.

The UNITED STATES of America and the Federal Communications Commission, Respondents.

No. 499, 29678.

United States Court of Appeals, Second Circuit.

April 26, 1965

Argued April 26, 1965.

Page 279

Paul Dobin, Washington, D.C. (Borden & Ball, New York City, Leonard H. Marks, Washington, D.C., and Joel H. Levy, of counsel), for petitioner.

John H. Conlin, Washington, D.C. (William H. Orrick, Jr., Ass't. Atty. Gen., Robert Hummel, Atty., Dept. of Justice; Henry Geller, Gen. Counsel, Howard Jay Braun, Counsel, Federal Communications Commission), for respondents.

Before LUMBARD, Chief Judge, and FRIENDLY and HAYS, Circuit Judges.

FRIENDLY, Circuit Judge:

Our motion calendar of April 26, 1965, contained applications by Lafayette Radio Electronics Corporation, under 5 U.S.C. § 1039, for a temporary restraining order and an interlocutory injunction

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against a new regulation of the Federal Communications Commission (FCC), to become effective that day, which, by appropriate petition, 5 U.S.C. § 1034, Lafayette asked us to review. Since the petitioner's papers and the response of the United States and the FCC, which we had previously examined, fully covered the merits, we set the petition for argument later that day. At the close of the argument we announced our denial of the petition and the consequent mooting of the applications for relief pending decision.

The controversy concerns a new FCC regulation, initially released July 29, 1964 for effectiveness November 1, 1964, 29 F.R. 11099, and adhered to on reconsideration in an opinion and order released March 1, 1965, 30 F.R. 2706. The regulation complained of, § 95.83(a)(1), which was issued as the result of a rule-making proceeding announced in 1962, 27 F.R. 11500, provides:

§ 95.83 Prohibited uses.

(a) A Citizens radio station shall not be used:

(1) For engaging in radio communications as a hobby or diversion, i.e., operating the radio station as an activity in and of itself.

The 1965 opinion included a dozen 'typical, but not all inclusive, examples of the types of communications evidencing' the kind of use prohibited under the rule. Read in the light of these examples, the rule proscribes transmission merely for the pleasure of using the equipment or discussing it. Lafayette, which holds a citizens radio station license and manufactures equipment used by licensees, 1 challenges the rule as violating the First Amendment and § 326 of the Federal Communications Act, 47 U.S.C. § 326, 2 and as unconstitutionally vague, particularly in the light of its effect on expression.

The Citizens Radio Service is one of some forty FCC regulated Safety and Special Radio Services, in which there are nearly 5,000,000 transmitters and over 1,400,000 licensees. These services differ from broadcast and common carrier services in that the number of users is so great that frequencies must be shared. The Citizens Radio Service was established in 1945, by the allocation of the 460-470 mc/s bands, to provide for personal and business uses of private citizens who did not come within any of the other defined services, 10 F.R. 901. 3 Examples are communication between business establishments and delivery vehicles, use in vehicles in and around large plants, construction projects, farms and ranches, and use by sportsmen and explorers for messages to and from camps. From the outset the FCC has indicated that the service was to be used for serious communications and did not encompass operation of a station for the enjoyment of doing so, a function already provided for in the Amateur Radio Service, where, however, licensing requirements are more severe. Enforcement problems began to be important with...

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