California Citizens Band Association v. United States

• Decision Date: 21 April 1967
• Docket Number: No. 20030.,20030.
• Citation: 375 F.2d 43
• Parties: CALIFORNIA CITIZENS BAND ASSOCIATION, Incorporated, a corporation, Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

375 F.2d 43 (1967)

CALIFORNIA CITIZENS BAND ASSOCIATION, Incorporated, a corporation, Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents.

No. 20030.

United States Court of Appeals Ninth Circuit.

March 7, 1967.

Rehearing Denied April 21, 1967.

COPYRIGHT MATERIAL OMITTED

Donald M. Sea, Sea & Hanna, Oakland, Cal., for petitioner.

Donald F. Turner, Asst. Atty. Gen., Howard E. Shapiro, Lionel Kestenbaum, Attys., Department of Justice, Washington, D. C., Henry Geller, Gen. Counsel, John H. Conlin, Associate Gen. Counsel, William L. Fishman, Counsel, Federal Communications Commission, Washington, D. C., for respondents.

Before MADDEN, Judge of the Court of Claims, and HAMLEY and ELY, Circuit Judges.

HAMLEY, Circuit Judge.

This is a proceeding to review two orders of the Federal Communications Commission (Commission) affecting Class D radio stations in the Citizens Radio Service. Petitioner, California Citizens Band Association, Incorporated, is a non-profit California corporation. All of its members are Citizens Band Radio Clubs. The membership of each such club consists of radio station licensees, duly licensed by the Commission to hold station licenses in the Class D Citizens Radio Service.

In one of the orders under review, released July 29, 1964 (29 FR 11099), the Commission adopted certain amendments to Part 19 (now Part 95) of the Commission's rules. In the other order, released on March 1, 1965 (30 FR 2706), the Commission, on reconsideration, adhered to its earlier determination. Both orders deal with the promulgation of rules affecting the Citizens Radio Service. The rules in question pertain, for the most part, to the kind of messages that may be transmitted, the frequencies that may be used, and the length of silent intervals between transmissions.

The Citizens Radio Service originated in 1945 when the Commission, after extensive inquiries and hearings, allocated a portion of the radio spectrum for a new "Citizens Radio-communication Service." This new service was primarily designed for both personal and business use by private citizens, particularly where other means of communication were not available. It was intended for essential, local communications such as those entailed in the operation of department stores, farms and construction projects. The first rules governing this Service were promulgated in 1947. In these rules, limitations on usage were kept at a minimum in order to foster development of the service.

When these rules were codified in 1949, certain prohibitions were set forth on the types of communications allowed in the Citizens Radio Service. Among other things, the codified rules provided that such stations be used only to communicate with other stations in the Citizens Radio Service; that all communications be limited to the minimum practicable transmission time; and that no station be used to carry communications for hire or in connection with radio broadcasting. In 1958, the Commission revised the rules and, among other things, established within the Citizens Radio Service, a new Class D, which was authorized to operate on certain frequencies in the 27 megacycle band.¹

The Class D category of stations was created to fulfill an increasing need for short-distance voice communication by radio for personal or business use.² An ever-increasing number of applicants applied for Class D licenses.³ Within a year, approximately 15,000 Class D station licenses had been granted.

On July 22, 1959, the Commission began a proceeding to amend its rules dealing with permissible communications in the Citizens Radio Service.⁴ The Commission proposed several rule changes which, among other things, would limit the operation of the Class D stations (24 FR 6059-6060) Comments were invited on these proposed rule changes.

These proposed rules, adopted in a policy statement issued February 17, 1960 (25 FR 1408), reflected the Commission's intention that Citizens' radio communication be used primarily for intercommunication between units of a single station (intra-station), rather than for communication with other stations (inter-station). They also gave effect to the Commission's desire that the Citizens Radio Service be restricted to useful and substantial messages related to the business or personal activities of the individuals concerned.

Communications to random or unknown stations were prohibited. For the first time a duration on the length of communications was prescribed. The exchange of communications between two or more Class D stations (inter-station) was limited to not more than five consecutive minutes, followed by a two-minute silent period. This limitation did not apply to intra-station communications or to emergency communications. These rule amendments were made effective March 15, 1960. See 25 FR 1408-1411.

In November, 1962, the Commission initiated the proposed rule making which eventuated in the entry of the Commission orders here under review. See 27 FR 11500. Proposed amendments to Part 19 (now Part 95) were publicized and interested persons were invited to file comments on or before January 15, 1963.⁵ In the accompanying notice the Commission stated that there were then approximately 350,000 Class D stations and that misuse of the Class D operating privileges had become so prevalent as to threaten the continued usefulness of the service. The Commission also stated in this notice that the proposed rule amendments were designed to make more apparent the permissible and prohibited communications and uses of citizens radio stations.

In response to this notice over 2,500 comments, representing many divergent views, were received and considered by the Commission. No public hearings were held. On July 29, 1964, the Commission released its report and order adopting the new rules.⁶ (29 FR 11099) A number of parties, including petitioner, requested reconsideration. In a memorandum opinion and order released on March 1, 1965, the Commission discussed and rejected requests for reconsideration of the order released on July 29, 1964. The Commission provided in this order that the amended rules would become effective on April 26, 1965.⁷

On April 19, 1965, Lafayette Radio Electronics Corporation petitioned the United States Court of Appeals for the Second Circuit to review the Commission's above-described orders of July 29, 1964 and March 1, 1965. That court denied the petition on April 26, 1965, the same day the new rules became effective. Lafayette Radio Electronics Corporation v. United States, 2 Cir., 345 F.2d 278. On the same day California Citizens Band Association, Incorporated, filed the petition for review now before us.

Petitioner contends that some of the rule changes accomplished by the orders under review are invalid because they were adopted without first giving the notice required by law. The notice required to be given concerning the content of proposed rules is governed by 5 U.S.C. § 553(b) (3) (1966), formerly 5 U.S.C. § 1003(a) (3) (1964). It is there provided that notice of rule making shall include "either the terms or substance of the proposed rule or a description of the subjects and issues involved."⁸

Petitioner refers to three rule changes as having been made without compliance with the statutory notice requirement. The first of these is a change in 47 CFR § 95.1, "Basis and Purpose," formerly 47 CFR § 19.1. The only substantial change made in this rule is the inclusion of additional language in one sentence of the rule as presently worded, shown in italics in the margin.⁹

Petitioner does not indicate how it is aggrieved by the inclusion of this additional language in 47 CFR § 95.1. The added words "* * * all to the extent that these uses are not specifically prohibited in this part * * *," merely state explicitly what was in any event necessarily implied in the former rules, and is implied in the new rules even absent this statement. Petitioner could not have believed that either the former rules or the new rules were designed to provide for service "specifically prohibited" in those rules. Thus the negating of any such design injects no new limitation.

The new clause "* * * service for the business or personal activities of licensees, * * *" makes reference to a limitation provision which was already in the rules, but which is now spelled out in greater detail in the "Basis and Purpose" clause of the amended rules.¹⁰ The proposed rules which accompanied the notice of rule making did not show such a contemplated change in the introductory statement of "Basis and Purpose." However, other provisions of the proposed rules contemplated limitations on the use of Class D stations of the same general character (see proposed § 19.61, 27 FR 11503), and considerably more restrictive than those which were finally promulgated. See 47 CFR § 95.83 (1966).

Title 5 U.S.C. § 553(b) (3), formerly 5 U.S.C. § 1003(a) (3), does not require an agency to publish in advance every precise proposal which it may ultimately adopt as a rule. Willapoint Oysters, Inc. v. Ewing, 9 Cir., 174 F.2d 676, 684-685; Logansport Broadcasting Corp. v. United States, 93 U.S.App.D.C. 342, 210 F.2d 24, 28. Petitioner argues that cases such as Willapoint are not here applicable because, unlike the rules there in question, the rules here under consideration carry criminal penalties. Proposed rules with criminal penalties, petitioner asserts, should be published in advance to afford certainty.

In support of this view, petitioner cites Hotch v. United States, 9 Cir., 212 F.2d 280, 282, 14 Alaska 594. However, in Hotch, neither notice that a regulation was to be issued, nor the proposed regulation itself, was published in the Federal Register at the time defendant performed the prohibited act. 208 F.2d at 250. In the case before us, as noted above, other provisions of the proposed rules, in addition to previous policy statements published in the Federal...