Noe v. Federal Communications Commission, 14064.

• Decision Date: 16 October 1958
• Docket Number: No. 14064.,14064.
• Citation: 260 F.2d 739
• Parties: James A. NOE, Harry Allsman, Raymond F. Hufft, and James A. Noe, Jr., d/b/a James A. Noe & Company, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Loyola University, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

260 F.2d 739 (1958)

James A. NOE, Harry Allsman, Raymond F. Hufft, and James A. Noe, Jr., d/b/a James A. Noe & Company, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee Loyola University, Intervenor.

No. 14064.

United States Court of Appeals District of Columbia Circuit.

Argued June 3, 1958.

Decided October 16, 1958.

Mr. Warren Woods, Washington, D. C., for appellant.

Mr. Joel Rosenbloom, Counsel, Federal Communications Commission, with whom Messrs. Warren E. Baker, Gen. Counsel, Federal Communications Commission, Richard A. Solomon, Asst. Gen. Counsel, Federal Communications Commission, and Richard W. Zwolinski, Counsel, Federal Communications Commission, were on the brief, for appellee.

Mr. Paul M. Segal, Washington, D. C., with whom Mr. Robert A. Marmet, Washington, D. C., was on the brief, for intervenor.

Messrs. Glenn L. Archer, Jr., and James E. Curry, Washington, D. C., filed a brief on behalf of Protestants and Other Americans United for Separation of Church and State, as amicus curiae, urging reversal.

Before BAZELON, FAHY and WASHINGTON, Circuit Judges.

WASHINGTON, Circuit Judge.

This appeal arises from a comparative proceeding before the Federal Communications Commission to determine which of three applicants should be awarded authority to operate a commercial television station on VHF Channel 4 in New Orleans, Louisiana. The hearing examiner recommended a grant to the Times-Picayune Publishing Company, preferring it over appellant James A. Noe & Company and over intervenor Loyola University, a Jesuit educational institution in New Orleans. The Commission, after hearing argument en banc, awarded the license to Loyola University. Each of the disappointed applicants appealed, but the appeal now before this court is that of James A. Noe & Company.¹

The primary contention of appellant Noe is that Loyola, by reason of its connection with the Society of Jesus, is the "representative" of an "alien," and is a corporation whose stock is "voted" by "representatives" of aliens, within the meaning of Section 310(a) of the Communications Act of 1934, 48 Stat. 1086, 47 U.S.C.A. § 310(a), rendering it ineligible to hold a television license.²

Briefly, the record shows that the Society of Jesus is an order of Roman Catholic priests, with a total membership of some 32,000, of whom about 7,500 reside in the United States. The record also shows that Loyola is an educational corporation chartered by the State of Louisiana in 1912. It is a nonprofit, non-stock corporation; it has no shares. Its property is its own, possessed in trust for educational purposes. It is legally and financially autonomous; it does not support or receive support from the Society of Jesus in a monetary way. Under the corporate charter, its directors must be priests of the Society of Jesus attached to Loyola University. All the directors are American citizens. The head of the Jesuit religious community at Loyola — the Rector — is ex officio the President of the University and corporation, and a member of the Board of Directors. He is appointed as head of the religious community by the Superior General of the order — presently a Belgian citizen residing in Rome — on the recommendation of the Provincial Superior, the head of the New Orleans Province of the Society. The Rector has the power to appoint one to three members of the Board of Directors and to submit a list of names to the Provincial Superior, from which list the latter appoints the other three leaders of the religious community, who ex officio become officers of the corporation and members of the Board. Transfers and assignments of priests belonging to the religious community at Loyola, with the exception of the Rector, are controlled by the Provincial Superior, who is an American citizen.

In support of appellant Noe's position language is cited from our opinion in WOKO, Inc., v. Federal Communications Commission, 1946, 80 U.S.App.D.C. 333, 338, 153 F.2d 623, 628, to the effect that Section 310(a) was directed against "corporations which have an alien tinge." Furthermore Noe contends that, on the basis of the Commission's opinion in Kansas City Broadcasting Co., 5 Pike & Fischer R.R. 1057 (1952), the purpose of the section is "to safeguard the United States from foreign influence in the field of radio. * * *" Id. at 1093. The emphasis that the appellant places on "alien tinge" and "foreign influence" is misplaced, however. In a letter of March 22, 1932, to the Chairman of the Senate Interstate Commerce Committee, the Secretary of the Navy stated that —

"The lessons that the United States had learned from the foreign dominance of the cables and the dangers from espionage and propaganda disseminated through foreignowned radio stations in the United States prior to and during the war brought about the passage of the Radio Act of 1927 superseded by the Communications Act of 1934, which was intended to preclude any foreign dominance in American radio. * * *"

Quoted in Hearings on H.R. 8301 Before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess. 26 (1934). In these same hearings, Captain Hooper, Director, Communications Division, Office of Naval Operations, remarked that —

"Due to the lessons of the World War, the Navy Department * * * recommended Government ownership of all radio. Congress did not approve this, but in lieu thereof enacted legislation requiring private ownership and operation, with positive assurance that radio would be owned by United States citizens, that directors and officers of radio companies would be United States citizens, and that four fifths of the stock would be in the hands of United States citizens. * * *"

Id. at 23. See also S.Rep.No. 781, 73d Cong., 2d Sess. 7 (1934). From this legislative history we may conclude that although Section 310(a) was directed against alien control of our communications facilities, this limitation was primarily based "upon the idea of preventing alien activities against the Government during the time of war." 68 Cong. Rec. 3037 (1927). The relationship of Loyola to the Society of Jesus hardly seems to endanger our national security. Certainly the mere fact that the Rector is appointed by an ecclesiastical superior who is an alien is not enough to bring Loyola within the interdiction of the cited statute.

We recognize that the Society of Jesus is an hierarchical organization, and that within the organization some power and control is vested in persons who are not directly a part of the University or the corporation, and a few of whom reside abroad. But the record shows that this hierarchical chain of authority — which extends from the Superior General in Rome to the Provincial Superior and the Rector, and in some rare situations might include the Pope — has never been used in the past to impinge upon the independence of the University in the operation of its radio station. Under all the circumstances, even if Section 310(a) be thought to have a semblance of relevance to the present case, it nevertheless would be inapplicable since it was incorporated in the Communications Act to "guard against alien control and not the mere possibility of alien control." S.Rep.No. 781, 73d Cong., 2d Sess. 7 (1934). In sum, therefore, we find nothing in the legislative history of the statutory provisions, or in the record of the present case, which would require us to overrule the Commission's rejection of Noe's argument. Loyola seems to us to fall neither within the letter nor the spirit of the statute.

Turning to other aspects of the case, we note that the chain of authority within the Society of Jesus, described above, is primarily an ecclesiastical one, though it includes the power to appoint and promote. This latter power, in business organizations, might perhaps require all persons in positions of comparable appointing authority to be considered as principals in an application for a TV license, though that issue is not now before us. See WLOX Broadcasting Co. v. Federal Communications Commission, 1958, 104 U.S.App.D.C. ___, 260 F.2d 712. The officers and directors of Loyola are not men of business; they are leaders of a religious community. In previous comparative hearings, the Commission has always recognized the necessity of distinguishing non-business organizations from the ordinary stock corporation. See Toledo Blade Co., 15 Pike & Fischer R.R. 739, 816 (1958) (non-stock, non-profit trade union ownership of corporation); City of Jacksonville, 12 Pike & Fischer R.R. 113, 180r (1956) (municipal corporation); Gulf Coast Broadcasting Co., 10 Pike & Fischer ...