Lafayette Radio Electronics Corp. v. United States
| Citation | 345 F.2d 278 |
| Decision Date | 26 April 1965 |
| Docket Number | No. 499,Docket 29678.,499 |
| Parties | LAFAYETTE RADIO ELECTRONICS CORPORATION, Petitioner, v. The UNITED STATES of America and the Federal Communications Commission, Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Paul Dobin, Washington, D. C. (Borden & Ball, New York City, Leonard H. Marks, Washington, D. C., and Joel H. Levy, of counsel), for petitioner.
John H. Conlin, Washington, D. C. , for respondents.
Before LUMBARD, Chief Judge, and FRIENDLY and HAYS, Circuit Judges.
Our motion calendar of April 26, 1965, contained applications by Lafayette Radio Electronics Corporation, under 5 U.S.C. § 1039, for a temporary restraining order and an interlocutory injunction against a new regulation of the Federal Communications Commission (FCC), to become effective that day, which, by appropriate petition, 5 U.S.C. § 1034, Lafayette asked us to review. Since the petitioner's papers and the response of the United States and the FCC, which we had previously examined, fully covered the merits, we set the petition for argument later that day. At the close of the argument we announced our denial of the petition and the consequent mooting of the applications for relief pending decision.
The controversy concerns a new FCC regulation, initially released July 29, 1964 for effectiveness November 1, 1964, 29 F.R. 11099, and adhered to on reconsideration in an opinion and order released March 1, 1965, 30 F.R. 2706. The regulation complained of, § 95.83(a) (1), which was issued as the result of a rule-making proceeding announced in 1962, 27 F.R. 11500, provides:
The 1965 opinion included a dozen "typical, but not all inclusive, examples of the types of communications evidencing" the kind of use prohibited under the rule. Read in the light of these examples, the rule proscribes transmission merely for the pleasure of using the equipment or discussing it. Lafayette, which holds a citizens radio station license and manufactures equipment used by licensees,1 challenges the rule as violating the First Amendment and § 326 of the Federal Communications Act, 47 U.S.C. § 326,2 and as unconstitutionally vague, particularly in the light of its effect on expression.
The Citizens Radio Service is one of some forty FCC regulated Safety and Special Radio Services, in which there are nearly 5,000,000 transmitters and over 1,400,000 licensees. These services differ from broadcast and common carrier services in that the number of users is so great that frequencies must be shared. The Citizens Radio Service was established in 1945, by the allocation of the 460-470 mc/s bands, to provide for personal and business uses of private citizens who did not come within any of the other defined services, 10 F.R. 901.3 Examples are communication between business establishments and delivery vehicles, use in vehicles in and around large plants, construction projects, farms and ranches, and use by sportsmen and explorers for messages to and from camps. From the outset the FCC has indicated that the service was to be used for serious communications and did not encompass operation of a station for the enjoyment of doing so, a function already provided for in the Amateur Radio Service, where, however, licensing requirements are more severe. Enforcement problems began to be important with the authorization of a new class of service, known as Class D, operating with radio-telephone emissions at low wattage on certain frequencies in the 27 mc band. In 1960, by which time some 50,000 Class D licenses had been granted, the FCC adopted amendments to its rules, spelling out the types of permitted operations and stating in comment that hobby type communications were not allowed, 25 F.R. 1408. Just prior to the now challenged amendment, the relevant rule read as follows:
Section 326 of the Communications Act must be read together with § 303, 47 U.S.C. § 303, which authorizes the FCC to "classify radio stations" and to "prescribe the nature of the service to be rendered by each class of licensed stations and each station within any class." Petitioner does not question the power of the FCC to restrict communications, say within the Aviation Radio Service, to those having to do with aviation; its argument is that in a service available to all citizens for business and personal activities generally, citizens must be allowed to say whatever they please, save for such few restrictions as the First Amendment permits....
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...a situation where if everybody could say anything, many could say nothing.' Lafayette Radio Electronics Corp. v.U nited States, 345 F.2d 278, 281 (C.A.2d Cir. 1965). Accord, California Citizens Band Ass'n v. United States, 375 F.2d 43 (C.A.9th Cir.), cert. denied, 389 U.S. 844, 88 S.Ct. 96,......
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