Pollak v. Public Utilities Commission of the Dist. of Col.

Decision Date01 June 1951
Docket NumberNo. 10777.,10777.
Citation191 F.2d 450
CourtU.S. Court of Appeals — District of Columbia Circuit


Paul M. Segal, Washington, D. C., with whom Franklin S. Pollak, Washington, D. C., was on the brief, pro se, for appellants. Harry P. Warner and Quayle B. Smith, Washington, D. C., entered appearances for appellants.

Daryal A. Myse, Washington, D. C., with whom Edmund L. Jones and F. G. Awalt, Washington, D. C., were on the brief, for appellee Capital Transit Co.

Lloyd B. Harrison, Counsel, Public Utilities Commission of the District of Columbia, Washington, D. C., with whom Vernon E. West, Corporation Counsel, Washington, D. C., was on the brief, for appellee Public Utilities Commission of the District of Columbia.

W. Theodore Pierson, Washington, D. C., with whom Vernon C. Kohlhaas and Thomas N. Dowd, Washington, D. C., were on the brief, for appellee Washington Transit Radio, Inc.

Charles Black of the bar of New York, Morris L. Ernst, James Lawrence Fly, Osmond K. Fraenkel, all of New York City, Alexander B. Hawes, Washington, D. C., Arthur Garfield Hays, New York City, Laurence A. Knapp, Washington, D. C., all members of the bar of this court, and Herbert Monte Levy and Bernard Weitzman, New York City, of the bar of New York, filed a brief on behalf of the American Civil Liberties Union as amicus curiae urging reversal.

Before EDGERTON, BAZELON, and FAHY, Circuit Judges.

Writ of Certiorari Granted October 15, 1951. See 72 S.Ct. 77.

EDGERTON, Circuit Judge.

Appellee Capital Transit Company (Transit) operates streetcars and buses in the District of Columbia. In 1948 Transit made a contract with appellee Washington Transit Radio, Inc., (Radio) by which Radio was to install and maintain loudspeakers in Transit vehicles and provide broadcasts at least 8 hours1 daily except Sunday. In October, 1949, loudspeakers were in operation in 212 vehicles and it was planned to increase the number to 1,500.

Though Transit and Radio call the broadcasts "music as you ride", they include not only music but also "commercials, announcements, and time signals". The contract permits six minutes of "commercial announcements" per hour. These vary from 15 to 35 seconds in length and are usually scheduled about once in five minutes, though the interval varies.

Appellee Public Utilities Commission received protests against Transit's use of radio. It ordered an investigation and held a hearing "to determine whether or not the installation and use of radio receivers on the street cars and busses of Capital Transit Company is consistent with public convenience, comfort and safety * * *." Appellants, who ride Transit vehicles, and other persons and organizations were allowed to intervene and took part in the hearing. The Commission found that transit radio does not reduce safety, "tends to improve the conditions under which the public rides," and "is not inconsistent with public convenience, comfort and safety." The Commission's final order "dismissed" its investigation.

Appellants and others appealed to the District Court from the Commission's order. Appellants' petition of appeal states that appellants are "obliged to use the street cars and busses of Capital Transit Company in connection with the practice of their profession and on other occasions and are thereby subjected against their will to the broadcasts in issue. These broadcasts make it difficult for petitioners to read and converse * * *." Each of the appellees, i. e. the Commission, Transit, and Radio, moved to dismiss the petitions of appeal as not stating claims on which relief could be granted and as not within the court's jurisdiction. The court dismissed the petitions on the ground that "no legal right of the petitioners * * * has been invaded * * *." This appeal followed.

Appellants' chief contention is that Transit radio deprives them of liberty without due process of law in violation of the Fifth Amendment of the Constitution.

1. The jurisdiction of the Public Utilities Commission, the District Court, and this court are clear. All public utilities are required by Act of Congress to "furnish service and facilities reasonably safe and adequate and in all respects just and reasonable" and the term "service" is used "in its broadest and most inclusive sense." D.C.Code (1940) §§ 43-301, 43-104. The Commission is authorized to fix and enforce standards of service. §§ 43-320, 43-303, 43-1002.

Since the Commission's order was its final decision that Transit may use loudspeakers in its streetcars and buses, the order was appealable. "Any * * * person * * * affected by any final order or decision of the Commission, other than an order fixing or determining the value of the property of a public utility in a proceeding solely for that purpose, may" appeal to the District Court and from that court to this. D.C.Code (1940) § 43-705. "Administrative determinations which are not commands may for all practical purposes determine rights as effectively as the judgment of a court, and may be reexamined by courts under particular statutes providing for the review of `orders'." American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 408, 60 S.Ct. 300, 303, 84 L.Ed. 347. Since the appellants use the service of Transit and intervened before the Commission they are "affected by" the Commission's order and may appeal.2

2. Transit passengers commonly have to hear the broadcasts whether they want to or not.3 The Commission made no finding on this point but the fact is well known. It was proved by many witnesses. It is in legal effect admitted by appellees' motions to dismiss the petition of appeal, since the petition states that appellants "are subjected against their will to the broadcasts in issue. These broadcasts make it difficult for petitioners to read and converse * * *." The brief of appellee Radio admits the fact in these terms: "it is impossible to give effect to this alleged right not to listen without frustrating the desire of other passengers to listen * * *." Appellee Transit says in its brief: "The record shows that every precaution is taken in the installation of the equipment and its maintenance to minimize the sound level at the operators' position and to distribute sound evenly throughout the public spaces in the vehicle * * *."4 WWDC-FM, the transmitting station, advertised in 1949 that Transit Radio was "delivering a guaranteed audience."5 The passengers are known in the industry as a "captive audience". Formerly they were free to read, talk, meditate, or relax. The broadcasts have replaced freedom of attention with forced listening.

The dismissed petition of appeal states that appellants are "obliged to use the street cars and busses" of Transit. Most people have to use mass transportation. In the District of Columbia this means they have to use Transit and hear the broadcasts. Even as between the District and the adjoining Pentagon region in Virginia the Supreme Court has said: "* * * most government employees, in going to and returning from their work, were compelled to begin or complete their trips by utilizing buses or streetcars of Capital Transit." United States v. Capital Transit Co., 325 U.S. 357, 359, 65 S.Ct. 1176, 1177, 89 L.Ed. 1663.

3. Though statutes and the law of torts forbid invasions of liberty by private individuals, the constitutional guarantees of liberty are directed against government action. But acts of individuals are beyond the reach of these guarantees only when they are "unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings." Civil Rights Cases, 109 U.S. 3, 17, 3 S.Ct. 18, 25, 27 L.Ed. 835. For example, since Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, was decided a state cannot "by permitting a party to take over a part of its election machinery * * * avoid the provisions of the Constitution forbidding racial discrimination in elections * * *." Rice v. Elmore, 4 Cir., 165 F.2d 387, 389. A private corporation that owns the streets of a town may no more abridge the freedoms of press and religion than a municipality regularly organized. Marsh v. Alabama, 326 U.S. 501, 506, 66 S.Ct. 276, 90 L.Ed. 265. The Supreme Court has recently said: "When authority derives in part from Government's thumb on the scales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise by Government itself." American Communications Ass'n v. Douds, 339 U.S. 382, 401, 70 S.Ct. 674, 685, 94 L.Ed. 925.

The forced listening imposed on Transit passengers results from government action. By authorizing Transit and forbidding others to operate local streetcars and buses, Congress made it necessary to ride the vehicles in which Transit makes it necessary to hear the broadcasts. Streetcars and buses cannot operate in city streets without a franchise. Congress has given Transit not only a franchise but a virtual monopoly of the entire local business of mass transportation of passengers in the District of Columbia.6

Furthermore the forced listening has been sanctioned by the governmental action of the Commission. If the Commission had found it contrary to public comfort or convenience, or unreasonable, it would have stopped. Because the Commission decided otherwise it continues. To suggest that a "negative" order cannot be the final step in a misuse of government power is to assert a distinction the Supreme Court has repudiated. "* * * An order of the Commission dismissing a complaint on the merits and maintaining the status quo is an exercise of administrative function, no more and no less, than an order directing some change in status." Rochester Tel. Corp. v. United States, 307 U.S. 125, 142, 59 S.Ct. 754, 763, 83 L.Ed. 1147. Mitchell v....

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