Hush-A-Phone Corporation v. United States

• Decision Date: 08 November 1956
• Docket Number: No. 13175.,13175.
• Citation: 238 F.2d 266
• Parties: HUSH-A-PHONE CORPORATION and Harry C. Tuttle, Petitioners, v. UNITED STATES of America and Federal Communications Commission, Respondents, American Telephone and Telegraph Company et al., and United States Independent Telephone Association, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

238 F.2d 266 (1956)

HUSH-A-PHONE CORPORATION and Harry C. Tuttle, Petitioners, v. UNITED STATES of America and Federal Communications Commission, Respondents American Telephone and Telegraph Company et al., and United States Independent Telephone Association, Intervenors.

No. 13175.

United States Court of Appeals District of Columbia Circuit.

Argued October 4, 1956.

Decided November 8, 1956.

Mr. Herbert J. Miller, Jr., Washington, D. C., with whom Mr. Kelley E. Griffith, Washington, D. C., was on the brief, for petitioners.

Mr. Richard A. Solomon, Asst. Gen. Counsel, Federal Communications Commission, with whom Mr. Warren E. Baker, Gen. Counsel, Federal Communications Commission, was on the brief, for respondent Federal Communications Commission. Mr. J. Smith Henley, Asst. Gen. Counsel, Federal Communications Commission, entered an appearance for respondent Federal Communications Commission, and Mr. Daniel M. Friedman, Atty., Department of Justice, entered an appearance for respondent United States.

Mr. Hugh B. Cox, Washington, D. C., with whom Messrs. Burke Marshall, Washington, D. C., and Edmund S. Hawley, New York City, were on the brief, for intervenors American Tel. & Tel. Co. and others. Mr. Ernest Jennes also entered an appearance for intervenors American Tel. & Tel. Co. et al.

Mr. Bradford Ross, Washington, D. C., with whom Mr. Richard S. T. Marsh, Washington, D. C., was on the brief, for intervenor United States Independent Tel. Ass'n.

Before EDGERTON, Chief Judge, and WILBUR K. MILLER and BAZELON, Circuit Judges.

BAZELON, Circuit Judge.

This is a petition under § 402(a) of the Communications Act of 1934, as amended,¹ for review of a Federal Communications Commission order of December 21, 1955, dismissing the complaint which the petitioners had filed against the intervenors. The petitioners are the Hush-A-Phone Corporation and its president. The intervenors are the American Telephone and Telegraph Company, the twenty-one associated companies of the Bell System, and the United States Independent Telephone Association.

Since 1921, Hush-A-Phone has manufactured and sold a cup-like device of the same name, which snaps on to a telephone instrument and makes for privacy of conversation, office quiet and a quiet telephone circuit.² Over the years, more than 125,000 Hush-A-Phones have gone into use.

Pursuant to § 203(a) of the Act,³ the intervenors have filed tariffs with the Commission showing not only charges for telephone service, but also "the classifications, practices, and regulations affecting such charges." These tariffs forbid attachment to the telephone of any device "not furnished by the telephone company" and, for violation of these "foreign attachment" provisions, the telephone companies claim the right to suspend or terminate service. The telephone companies have informed both vendors and users of Hush-A-Phones that the device may not be used under the tariffs. As a result, some of the petitioners' distributors have already given up selling Hush-A-Phones.

On December 22, 1948, petitioners filed a complaint with the Commission against the intervenors under § 208 of the Act,⁴ demanding that the Commission order intervenors (1) to discontinue the described interferences with Hush-A-Phone distribution and use; and (2) to amend the foreign attachment provisions of their tariffs to permit the use of Hush-A-Phones. The Commission held hearings on the complaint in January 1950 and, on February 16, 1951, released its initial decision looking toward dismissal of the complaint. Oral argument on the exceptions to the initial decision was held on November 30, 1951, and the Commission took the case under advisement. In that status it remained for more than four years, until December 21, 1955, when the decision under review was made.

The Commission agrees that, if the use of Hush-A-Phones does not impair telephone service, a tariff provision barring use of the device would not be "just and reasonable" within the meaning of § 201(b) of the Act⁵ and the Commission, under the authority given it by § 205(a),⁶ would prescribe a provision which would be "just, fair, and reasonable". It argues, however, that it has concluded, on the basis of its findings, supported by evidence, that the use of Hush-A-Phones does impair telephone service, and that we should not disturb that conclusion.

Although the Commission found⁷ that using a Hush-A-Phone does not physically impair any of the facilities of the telephone companies,⁸ it nevertheless concluded that the device is "deleterious to the telephone system and injures the service rendered by it." There seems in that conclusion a suggestion that the use of a Hush-A-Phone affects more than the conversation of the user — that its influence pervades, in some fashion, the whole "telephone system." The Commission repeats this suggestion in its conclusion that use of a Hush-A-Phone involves "public detriment." It is because we see no findings to support these conclusions of systemic or public injury that we reverse the Commission's decision.

The effects of using a Hush-A-Phone, the Commission found, are to give the user privacy against nearby eavesdroppers and to make for a quieter line by excluding extraneous noise. When not used for privacy, i. e., when not pressed against the face to seal in the mouth, the Hush-A-Phone produces only negligible loss of intelligibility. When the device is used for maximum privacy, there is a noticeable loss of intelligibility (up to 13 decibels), which means that the person to whom the Hush-A-Phone user is speaking hears a lower and somewhat distorted sound. This diminution of volume and clarity of the Hush-A-Phone user's voice, as heard by the party to whom he is speaking, rather than any effect upon the system generally, appears to be what the Commission means when it speaks of impairment of service. It weighs against Hush-A-Phone's "significant"⁹ benefit of privacy the "public detriment" involved in this loss of intelligibility¹⁰ and concludes that it is not unjust and unreasonable to forbid the use of Hush-A-Phone.

The question, in the final analysis, is whether the Commission possesses enough control over the subscriber's use of his telephone to authorize the telephone company to prevent him from conversing in comparatively low and distorted tones. It...