GTE Sylvania Inc. v. Consumer Product Safety Com'n, Civ. A. No. 75-104.

• Court: United States District Courts. 3th Circuit. United States District Court (Delaware)
• Writing for the Court: LATCHUM
• Citation: 404 F. Supp. 352
• Parties: GTE SYLVANIA INCORPORATED, Plaintiff, v. CONSUMER PRODUCT SAFETY COMMISSION et al., Defendants.
• Decision Date: 23 October 1975
• Docket Number: Civ. A. No. 75-104.

404 F. Supp. 352

GTE SYLVANIA INCORPORATED, Plaintiff,
v.
CONSUMER PRODUCT SAFETY COMMISSION et al., Defendants.*

Civ. A. No. 75-104.

United States District Court, D. Delaware.

October 23, 1975.

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James M. Tunnell, Jr., and William H. Sudell, Jr., of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., and Robert L. Palmer and Eugene C. Holloway of Covington & Burling, Washington, D. C., for plaintiffs GTE Sylvania Inc. and Aeronutronic Ford Corp. (C.A. No. 75-104 and C.A. No. 75-116)

Richard J. Abrams, of Richards, Layton & Finger, Wilmington, Del., and Stephen B. Clarkson, of Sullivan, Beauregard & Clarkson, Washington, D. C., for plaintiff The Magnavox Co. (C.A. No. 75-112).

Januar D. Bove, Jr. and Arthur G. Connolly, Jr., of Connolly, Bove & Lodge, Wilmington, Del., and Clark J. Gurney and Charles E. Matthews, Jr., of Spengler, Carlson, Gubar & Churchill, New York City, for plaintiff Zenith Radio Corp (C.A. No. 75-113).

Charles S. Crompton, Jr., of Potter, Anderson & Corroon, Wilmington, Del., and Walter T. Kuhlmey, of Kirkland & Ellis, and Joseph R. Haack, Chicago, Ill., for plaintiff Motorola, Inc. (C.A. No. 75-114).

Charles S. Crompton, Jr., of Potter, Anderson & Corroon, Wilmington, Del., and Irving Scher, of Weil, Gotshal & Manges, New York City, for plaintiff Matsushita Electric Corp. of America (C.A. No. 75-150).

Charles S. Crompton, Jr., of Potter, Anderson & Corroon, Wilmington, Del., and David Fleischer and John H. de Boisblanc of Battle, Fowler, Lidstone, Jaffin, Pierce & Kheel, New York, N. Y. for plaintiff Toshiba America, Inc. (C. A. No. 75-152).

Charles S. Crompton, Jr., of Potter, Anderson & Corroon, Wilmington, Del., and Reuben L. Hedlund, of Kirkland & Ellis, Chicago Ill., for plaintiff Teledyne Mid-America Corp. (C.A. No. 75-122).

Charles S. Crompton, Jr., of Potter, Anderson & Corroon, Wilmington, Del., and Peter A. Dankin and Peter J. Gartland, of Wender, Murase & White, New York City, for plaintiff Sharp Electronics Corp. (C.A. No. 75-151).

Clair John Killoran and Andrew G. T. Moore, 2nd, of Killoran & Van Brunt,

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Wilmington, Del., and Charles C. Hileman, III, and Ira P. Tiger, of Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for plaintiff RCA Corp (C.A. No. 75-108)

Howard M. Berg, of Berg, Komissaroff & Sawyer, Wilmington, Del., and Michael A. Stiegel, of Arnstein, Gluck, Weitzenfeld & Minow, Chicago, Ill., for plaintiff Warwick Electronics, Inc. (C. A. No. 75-115).

Henry N. Herndon, Jr., Morris L. Stoltz, II, and Edward M. McNally of Morris, James Hitchens & Williams, Wilmington, Del., and H. Woodruff Turner, of Kirkpatrick, Lockhart, Johnson & Hutchison, Pittsburgh, Pa., for plaintiff Admiral Corp. (C.A. No. 75-131).

H. James Conaway, Jr., Ben T. Castle and Frederick W. Iobst of Young, Conaway, Stargatt & Taylor, Wilmington, Del., and Robert W. Steele, William E. Wickens, Harold D. Rhynedance, Jr., and Alan M. Grimaldi of Howrey & Simon, Washington, D. C., for plaintiff General Electric Co. (C.A. No. 75-136).

W. Laird Stabler, Jr., U. S. Atty., Wilmington, Del., Rex E. Lee, Asst. Atty. Gen., Harland F. Leathers, Jeffrey Axelrad and Barry M. Katz, Attys., Department of Justice, Washington, D. C., and Maryanne Kane and Edward J. Cull, Attys., Consumer Product Safety Commission, Washington, D. C., for defendants.

OPINION

LATCHUM, Chief Judge.

In these thirteen separate actions, each plaintiff, a manufacturer of television receivers, seeks a preliminary injunction restraining the Consumer Product Safety Commission ("Commission"), its members and officers from disseminating certain information to the public which the plaintiffs contend is privileged, confidential, misleading and inaccurate.

Congress, in 1972, enacted the Consumer Product Safety Act (the "Act"), 15 U.S.C. § 2051 et seq., in order to "establish comprehensive and effective regulation over the safety of unreasonably hazardous consumer products."¹ To implement and administer this legislative policy, the Act established the Commission as an independent regulatory agency. Shortly after its creation, the Commission became concerned about the safety of television sets. During the spring and summer of 1974, the Commission sought and obtained television-related accident data from television manufacturers in three ways: by a general public request for information, by a special order pursuant to 15 U.S.C. § 2076(b)(1), and finally by the issuance of subpoenas duces tecum pursuant to 15 U.S.C. § 2076(b)(3). Upon receipt of such information, the data was consolidated and a computer printout was prepared which listed the alleged accidents separately. On March 28, 1975, the Commission decided to release to the public the bulk of the television-related accident material in its possession which it had gathered from the plaintiffs.

Subsequently, each of the thirteen plaintiffs brought a suit against the Commission² for an injunction prohibiting the public dissemination of the information

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obtained from each on the ground that such information was privileged, confidential, misleading and inaccurate. The thirteen actions were consolidated³ for a hearing on plaintiffs' motions for preliminary injunctive relief. The defendants also consented to the entry of a temporary restraining order⁴ prohibiting the public disclosure pending the Court's decision on plaintiffs' present motions.⁵

I. BACKGROUND

In March 1974, the Commission issued a public notice⁶ announcing that it would hold a public hearing to investigate the hazards encountered during the operation of television receivers and to consider the necessity of developing safety standards for such receivers. By this notice, the Commission sought certain technical information and TV-related accident data from manufacturers of television sets and the component parts thereof. The notice described the accident data sought in part as follows:

"Although the hearing is intended to emphasize fires and shocks related to TV sets, information pertaining to all aspects of TV set safety may be submitted (with the exception of radiation hazards ...).

* * * * * *

... In particular, each TV manufacturer is requested to submit all accident reports collected since the 1969 hearings held by the National Commission on Product Safety. If present data recording procedures differ from the method proposed in the 1969 `Electronic Industry Ad Hoc Engineering Report on Television Fires' which was submitted to the National Commission on Product Safety, place (sic) indicate the procedures used."⁷

Although a few manufacturers complied with the Commission's general request for data, their principal response consisted of a six page summary of accident data supplied by the Electronics Industry Association ("EIA").⁸

After reviewing the data voluntarily submitted, the Commission concluded that "the information submitted to the Commission by the EIA on behalf of the Companies did not satisfy the Commission's request."⁹ Thus on May 13, 1974, the Commission, acting pursuant to 15 U.S.C. § 2076(b)(1),¹⁰ sent special orders to twenty-five manufacturers of television receivers and components.¹¹ The information sought by these special orders was broken down into six categories: (1) TV-related accident data, (2)

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Current, future-planned and suggested TV-related safety standards, (3) Quality control and quality assurance plans, (4) Service technicians, (5) Improvement plans for presently used sets, and (6) Specific technical areas.¹²

The instructions for the TV-related accident data category provided:

"You are requested to submit all accident reports collected since the 1969 hearings held by the National Commission on Product Safety. If present data recording procedures differ from the method proposed in 1969 `Electronics Industry Ad Hoc Engineering Report on Television Fires' which was submitted to the National Commission on Product Safety, please indicate the procedures used."¹³

In the cover letter¹⁴ accompanying the special orders, the Commission "recognized that some of the information to be submitted might be proprietary" and referred the manufacturer to certain statutory provisions¹⁵ designed to protect confidential information supplied to the government. The Commission encouraged compliance by stating in the cover letter:

"This information will be received in confidence. It will not be placed in a public file and will not initially be made available to the public."

However, the possibility of a request for public access to this information by way of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, was noted, and the manufacturers were instructed to identify data claimed to be exempt from public disclosure and to "substantiate" any such claims. Claims of confidentiality accompanied the response of most manufacturers.¹⁶

Again, the Commission was not satisfied with the data supplied by the manufacturers pursuant to the special orders and the companies were notified as follows:

"The Commission has reviewed your response to its May 13, 1974, Special Order requesting information on TV-related fire and shock hazards. Although we recognize your effort to comply with the terms of the Special Order, technical analysis shows that your response fails to provide sufficient information with respect to certain questions enumerated in the Order.

Accordingly, the Commission has decided to issue the attached subpoena, pursuant to section 27(b)(3) of the Consumer Product Safety Act 15 U.S.C. § 2076(b)(3) which specifies the additional information required.

It should be noted that failure to respond to the subpoena within the time specified therein may, pursuant to section 27(c) of the Act 15 U.S.C. § 2076(c) lead to entry of a court order against you directing compliance with the Commission's subpoena."¹⁷

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