Houston Post Co. v. United States

• Decision Date: 03 August 1948
• Docket Number: Civ. No. 4367.
• Citation: 79 F. Supp. 199
• Parties: HOUSTON POST CO. v. UNITED STATES et al.
• Court: U.S. District Court — Southern District of Texas

79 F. Supp. 199

HOUSTON POST CO. v. UNITED STATES et al.

Civ. No. 4367.

District Court, S. D. Texas, Houston Division.

August 3, 1948.

Butler, Binion, Rice & Cook and Jack Binion, all of Houston, Tex., and Case & Wozencraft and Frank W. Wozencraft, all of Washington, D. C., for plaintiff.

Brian S. Odem, U. S. Atty., of Houston, Tex., Tom Clark, Atty. Gen., Herbert A. Bergson, Asst. Atty. Gen., and William D. McFarlane, Sp. Asst. to the Atty. Gen., for the United States.

Benedict P. Cottone, Gen. Counsel, Max Goldman, Acting Asst. Gen. Counsel, and Richard A. Solomon, all of Washington, D. C., for Federal Communications Commission.

Price Daniel, Atty. Gen., of Texas, and C. K. Richards, Asst. Atty. Gen., for the State of Texas, amicus curiae.

Don Petty, of Washington, D. C., for the Nat. Assn. of Broadcasters, amicus curiae.

Before HUTCHESON, Circuit Judge, and KENNERLY and HANNAY, District Judges.

HUTCHESON, Circuit Judge.

Plaintiff, under license issued by the Federal Communications Commission, is, and for many years has been, owner of "Radio Station KPRC", a long established, highly regarded, and valuable property in Houston, Texas. As such owner, it brings this suit under Section 402(a)¹ of the Communications Act of 1934, to annul the interpretation or opinion of the Commission as to the meaning and effect of Section 315² of the Act, the Political Broadcast Section, and to enjoin its enforcement.

Plaintiff alleges that this interpretation or opinion, announced by the Commission in the course of deciding In re Application of Port Huron Broadcasting Company, Docket No. 6987, in effect declares that the censorship forbidden by Section 315 is absolute and extends to censoring for libelous or slanderous matter.³

The petition further alleges: that plaintiff has an established policy of extending its broadcasting facilities to candidates; that various heated political campaigns are now being carried on; that, under the laws of Texas, plaintiff will be held liable if it permits libelous matter to go out over its facilities; and that the Commission's action, if not annulled and restrained, will compel plaintiff to choose between the danger, on the one hand, of losing its license if it does not comply with the Commission's opinion, and, on the other, of being sued for libel if it does.

Defendants having appeared by motion to dismiss and by answer, the National Association of Broadcasters and the State of Texas having filed briefs amici curiae and a three judge court having been properly convened, the motion to dismiss was fully argued and submitted. Whereupon, the court, after consultation, announced that ruling on the motion to dismiss would be deferred until after the trial on the merits so that if the court concluded that it had jurisdiction, it could enter a final judgment in the case and if it concluded that it had not, the record would be complete for an appeal.

The facts, admitted in the answer, stipulated on the trial, or briefly proven, came in without substantial conflict, the oral arguments were soon completed, and the case stood submitted on full briefs on both questions argued.

Of the opinion that the issues were in substance in small compass, and that with the great aid afforded by the full briefs, some filed in advance of the hearing, the matters for determination should, and could, be promptly decided, the court proceeded at once to a determination of the question of jurisdiction which underlies the case.

So proceeding, it at once became apparent: that the right of plaintiff to maintain the suit depends upon its being in fact and in law a suit to enjoin, set aside, or annul "an order" of the commission within the meaning and contemplation of Sec. 402(a); and that the burden rests heavily upon it to show that what is in appearance a mere discussion of the meaning and effect of Sec. 315, indulged in by the Commission not in but while deciding the case before it, is in law and in fact such an order.

Plaintiff fully recognizes this as its burden, and with earnestness and vigor presses upon us that though in form a quasi judicial opinion, the interpretation complained of was intended to be, and is in fact, an order promulgating a rule or regulation which all radio stations, including plaintiff, must at their peril obey. Putting forward Columbia Broadcasting System v. U. S., 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563, as authority for its position, plaintiff points, as giving full support to it, to the language of Mr. Chief Justice Stone in that case, 316 U.S. at page 416, 62 S.Ct. at page 1200, 86 L.Ed. 1563: "The particular label placed upon it by the Commission is not necessarily conclusive, for it is the substance of what the Commission has purported to do and has done which is decisive. Powell v. U. S., 300 U.S. 276; 284, 285, 57 S.Ct. 470, 474, 475, 81 L.Ed. 643; A. F. of L. v. Labor Board, 308 U.S. 401, 408, 60 S.Ct. 300, 303, 84 L.Ed. 347."

We cannot agree. The Columbia Broadcasting Company case aside, we think it perfectly plain that if the words of Sec. 402(a) are accorded the meaning ordinarily given such words in such a context, the rules of right reasoning do not permit of the view that the opinion complained of is a reviewable order under the section.⁴ Indeed, we think it clear that but for the comfort the Columbia Broadcasting case gives, plaintiff would not be here.

If then we give that case the fullest reach to which it is entitled, is there anything in it which lends support to plaintiff's view? We think not. That case is a different case in fact from the one presented here, and nothing said in the opinion, supports the contention here made. As appears from the summary in headnote 2 of the Columbia case, the regulations there complained of were promulgated by order of the Commission in the exercise of its rule making power to govern its policy and action in the licensing of broadcasting stations, and they provided that there should be no renewal of licenses of stations whose contracts contained provisions proscribed by the Commission.⁵

The differences of opinion manifested, the arguments and discussions indulged in, in that case were not over whether the regulations complained of were promulgated by "order". They were admittedly so promulgated. It was over whether they and the order promulgating them, which was not directed to plaintiffs, had such impact upon plaintiffs as would give them a right to a review of it under Sec. 402(a), or whether before applying for judicial relief they must wait action by the Commission enforcing the regulation against them. In short, the question there was whether the action for relief against the order was premature, not whether the regulations complained of were orders of the Commission. Pointing out that the order was not within any of the exceptions in Sec. 402(a) and that the assailed regulations prescribed rules which governed the contractual relations between the stations and the networks, the court, 316 U.S. at page 418, 62 S.Ct. 1200, 86 L.Ed. 1563 said: "The regulations are rules which in proceedings before the Commission require it to reject and authorize it to cancel licenses on the grounds specified in the regulations without more. If the regulations are valid they alter the status of appellant's contracts and thus determine their validity in advance of such proceedings."

Then drawing the distinction between a rule or order having the force of law and a mere opinion as to what the law is, the court goes on to say:

"Most rules of conduct having the force of law are not self-executing but require judicial or administrative action to impose their sanctions with respect to particular individuals. Unlike an administrative order or a court judgment, adjudicating the rights of individuals, which is binding only on the parties to the particular proceeding, a valid exercise of the rule-making power is addressed to and mete a standard of conduct for all to whom its terms apply. It operates as such in advance of the imposition of sanctions upon any particular individual. * * *

"Such regulations have the force of law before their sanctions are invoked as well as after. When, as here, they are promulgated by order of the Commission and the expected conformity to them causes injury cognizable by a court of equity, they are appropriately the subject of attack under the provisions of § 402(a)". (Emphasis supplied).

In the opinion of the District Court in that case, 44 F.Supp. page 688, the court at page 691 said: "So far as we have found, the Supreme Court has never declared that that statute authorizes review of any decision of an administrative tribunal which neither directs anyone to do anything, nor finally adjudicates a fact to exist upon which some right or duty immediately depends. * * * it is enough if it authoritatively determines the existence of a fact that at once sets in execution some sanction, though the decision itself be not in form a command."

We think it plain that the crux of this case lies here. The determination whether the complained of interpretation of the Commission is, or is intended to be, a mere expression of opinion which "neither directs anyone to do anything, nor finally adjudicates a fact to exist upon which some right or duty immediately depends", or whether it is, or is intended to be, an oblique regulation, that is an authoritative determination of "the existence of a fact that at once sets in execution some sanction, though the decision itself be not in form a command". Because this is so, the court, as a test of the position of the Commission, carefully interrogated counsel for it as to the real, the actual position and contention of the Commission.

Among other things, counsel was asked: "Does the Commission consider or contend that its interpretation of the meaning and effect of Sec. 315 has added anything to the obligations which Sec. 315 imposes on radio stations, that is, has it imposed...