Federal Communications Commission v. Pottsville Broadcasting Co, No. 265

CourtUnited States Supreme Court
Writing for the CourtFRANKFURTER
Citation309 U.S. 134,60 S.Ct. 437,84 L.Ed. 656
PartiesFEDERAL COMMUNICATIONS COMMISSION v. POTTSVILLE BROADCASTING CO
Decision Date29 January 1940
Docket NumberNo. 265

309 U.S. 134
60 S.Ct. 437
84 L.Ed. 656
FEDERAL COMMUNICATIONS COMMISSION

v.

POTTSVILLE BROADCASTING CO.

No. 265.
Argued Jan. 11, 1940.
Decided Jan. 29, 1940.

Page 135

Robert H. Jackson, Sol. Gen., for petitioner.

Messrs. Charles D. Drayton and Eliot C. Lovett, both of Washington, D.C., for respondent.

[Argument of Counsel from page 135 intentionally omitted]

Page 136

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, 60 S.Ct. 107, 84 L.Ed. —-. 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 regula-

Page 137

tion 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., 47 U.S.C.A. § 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 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), 47 U.S.C.A. § 154(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

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 proceedings. Pottsville Broadcasting Co. v. Federal Communications Commission, 70 App.D.C. 157, 105 F.2d 36.

The Court of Appeals invoked against the Commission the familiar doctrine that a lower court is bound to respect the mandate of an appellate tribunal and cannot reconsider questions which the mandate has laid at rest. See In re Sanford Fork & Tool Co., Petitioner, 160 U.S. 247, 255, 256, 16 S.Ct. 291, 293, 40 L.Ed. 414. That proposition is indisputable, but it does not tell us

Page 141

what issues were laid at rest. Compare Sprague v. Ticonic Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184. Nor is a court's interpretation of the scope of its own mandate necessarily conclusive. To be sure the court that issues a mandate is normally the best judge of its content, on the...

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533 practice notes
  • Justice Department, Immigration and Naturalization Service,
    • United States
    • Federal Register August 26, 2002
    • August 26, 2002
    ...Cir. 1990); see also Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524-25 (1978), quoting FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143 (1940) (``administrative agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of pe......
  • Associated Press v. FCC, No. 23833
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 12, 1971
    ...We may not substitute our judgment for that of the Commission as to how it should order its docket. FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 84 L.Ed. 656 (1940); FCC v. WJR, 337 U.S. 265, 282-283, 69 S.Ct. 1097, 93 L.Ed. 1353 (1949); FCC v. Schreiber, 381 U.S. 27......
  • Strang v. Marsh, Civ. A. No. 83-0409 P.
    • United States
    • U.S. District Court — District of Rhode Island
    • February 21, 1985
    ...quoting F.C.C. v. Schreiber, 381 U.S. 279, 290, 85 S.Ct. 1459, 1467, 14 L.Ed.2d 383 (1965), quoting F.C.C. v. Pottsville Broadcasting Co., 309 U.S. 134, 143, 60 S.Ct. 437, 441, 84 L.Ed. 656 (1940). Accordingly, in order to grant the relief sought by plaintiffs, I must find a statutory or co......
  • Office of Communication of United Church of Christ v. F.C.C., Nos. 81-1032
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 10, 1983
    ...of discretion by the expert body which Congress has charged to carry out its legislative policy." FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656 (1940). Later commentators have been less charitable. Professor Jaffe has portrayed the Commission as a vi......
  • Request a trial to view additional results
530 cases
  • Associated Press v. FCC, No. 23833
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 12, 1971
    ...We may not substitute our judgment for that of the Commission as to how it should order its docket. FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 84 L.Ed. 656 (1940); FCC v. WJR, 337 U.S. 265, 282-283, 69 S.Ct. 1097, 93 L.Ed. 1353 (1949); FCC v. Schreiber, 381 U.S. 27......
  • Strang v. Marsh, Civ. A. No. 83-0409 P.
    • United States
    • U.S. District Court — District of Rhode Island
    • February 21, 1985
    ...quoting F.C.C. v. Schreiber, 381 U.S. 279, 290, 85 S.Ct. 1459, 1467, 14 L.Ed.2d 383 (1965), quoting F.C.C. v. Pottsville Broadcasting Co., 309 U.S. 134, 143, 60 S.Ct. 437, 441, 84 L.Ed. 656 (1940). Accordingly, in order to grant the relief sought by plaintiffs, I must find a statutory or co......
  • Office of Communication of United Church of Christ v. F.C.C., Nos. 81-1032
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 10, 1983
    ...of discretion by the expert body which Congress has charged to carry out its legislative policy." FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656 (1940). Later commentators have been less charitable. Professor Jaffe has portrayed the Commission as a vi......
  • Brandywine-Main Line Radio, Inc. v. FCC, No. 71-1181.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 25, 1972
    ...States, 319 U.S. 190, 219, 63 S.Ct. 997, 87 L.Ed. 1344 (1943), whose validity we have long upheld. FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 84 L.Ed. 656 (1940); FCC v. RCA Communications, Inc., 346 U.S. 86, 90, 73 S.Ct. 998, 97 L.Ed. 1470 (1953); FRC v. Nelson Br......
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2 books & journal articles
  • Agency Deference After Kisor v. Wilkie
    • United States
    • The Georgetown Journal of Law & Public Policy Nbr. 18-1, January 2020
    • January 1, 2020
    ...of the Administrator.”), but they did not hand the interpretive process over to an agency. 38. In FCC v. Pottsville Broadcasting Co., 309 U.S. 134 (1940), the Court wrote in a footnote that the FCC’s interpretation of an internal agency rule governing the timing of hearings was “binding upo......
  • Administering the National Environmental Policy Act
    • United States
    • Environmental Law Reporter Nbr. 45-4, April 2015
    • April 1, 2015
    ...U.S. 340 (1984); FTC v. Standard Oil of Cal., 449 U.S. 232 (1980); Califano v. Sanders, 430 U.S. 99 (1977); FCC v. Pottsville Broad. Co., 309 U.S. 134 (1940); United States v. Los Angeles & S.L.R. Co., 373 U.S. 299, 308-13 (1927). On the gradual transition from jurisdictional and interpreti......

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