Public Utilities Commission of District of Columbia v. Pollak Pollak v. Public Utilities Commission of District of Columbia

Citation343 U.S. 451,96 L.Ed. 1068,72 S.Ct. 813
Decision Date26 May 1952
Docket Number295,Nos. 224,s. 224
CourtUnited States Supreme Court

[Syllabus from pages 451-453 intentionally omitted] Mr. W. Theodore Pierson, Washington, D.C., for Washington Transit Radio, Inc. and others.

Mr. Paul M. Segal, Washington, D.C., for Pollak and others.

Mr. Justice BURTON delivered the opinion of the Court.

The principal question here is whether, in the District of Columbia, the Constitution of the United States precludes a street railway company from receiving and amplifying radio programs through loud speakers in its passenger vehicles under the circumstances of this case. The service and equipment of the company are subject to regulation by the Public Utilities Commission on the District of Columbia. The Commission, after an investigation and public hearings disclosing substantial grounds for doing so, has concluded that the radio service is not inconsistent with public convenience, comfort and safety and 'tends to improve the conditions under which the public ride.' The Commission, accordingly, has permitted the radio service to continue despite vigorous protests from pages 452-454 passengers that to do so violates their constitutional rights. For the reasons hereafter stated, we hold that neither the operation of the service nor the action of the Commission permitting its operation is precluded by the Constitution.

The Capital Transit Company, here called Capital Transit, is a privately owned public utility corporation, owning an extensive street railway and bus system which it operates in the District of Columbia under a franchise from Congress. 1 Washington Transit Radio, Inc., here called Radio, also is a privately owned corporation doing business in the District of Columbia. Both are petitioners in No. 224.

In March, 1948, Capital Transit experimented with 'music as you ride' radio programs received and amplified through loud speakers in a streetcar and in a bus.2 Those vehicles were operated on various lines at various hours. A poll of passengers who heard the programs showed that 92% favored their continuance. Experience in other cities was studied.3 Capital Transit granted Radio the exclusive right to install, maintain, repair and use radio reception equipment in Capital Transit's streetcars, busses, terminal facilities, waiting rooms and division headquarters. Radio, in return, agreed to contract with a broadcasting station for programs to be received during a minimum of eight hours every day, except Sundays. To that end Radio secured the services of Station WWDC—FM. Its programs were to meet the specifications stated in Capital Transit's contract.4 Radio agreed to pay Capital Transit, after a 90-day trial, $6 per month per radio installation, plus additional compensation dependent upon the station's receipts from sources such as commercial advertising on the programs. In February, 1949, when more than 20 installations had been made, the service went into regular operation. At the time of the Commission's hearings, October 27—November 1, 1949, there were 212. On that basis the minimum annual payment to Capital Transit came to $15,264. The potential minimum would be $108,000, based upon 1,500 installations. The contract covered five years, with an automatic five-year renewal in the absence of notice to the contrary from either party.

This proceeding began in July, 1949, when the Commission, on its own motion, ordered an investigation. 37 Stat. 983, D.C.Code, 1940, §§ 43—408 through 43—410. The Commission stated that Capital Transit had embarked upon a program of installing radio receivers in its streetcars and busses and that a number of protests against the program had been received. Accordingly, the Commission was ordering an investigation to determine whether the installation and use of such receivers was 'consistent with public convenience, comfort and safety.' Radio was permitted to intervene. Pollak and Martin, as protesting Capital Transit passengers, also intervened and they are the respondents in No. 224.

The Commission concluded 'that the installation and use of radios in streetcars and busses of the Capital Transit Company is not inconsistent with public convenience, comfort, and safety' and dismissed its investigation. 81 P.U.R.,N.S., 122, 126. It denied reconsideration. 49 Stat. 882, D.C.Code, 1940, § 43—704. Pollak and Martin appealed to the United States District Court for the District of Columbia. 49 Stat. 882—884, D.C.Code 1940, §§ 43—705 through 43—710. John O'Dea, as People's Counsel, Capital Transit Company and Washington Transit Radio, Inc., were granted leave to intervene. That appeal was dismissed but Pollak and Martin took the case to the Court of Appeals. 49 Stat. 883, D.C.Code 1940, § 43—705. That court partially reversed the judgment of the District Court and gave instructions to vacate the Commission's order. It remanded the case for further proceedings in conformity with its opinion which included the following statement:

'In our opinion Transit's broadcasts deprive objecting passengers of liberty without due process of law. Service that violates constitutional rights is not reasonable service. It follows that the Commission erred as a matter of law in finding that Transit's broadcasts are not inconsistent with public convenience, in failing to find that they are unreasonable, and in failing to stop them.

'This decision applies to 'commercials' and to 'announcements'. We are not now called upon to decide whether occasional broadcasts of music alone would infringe constitutional rights.' 89 U.S.App.D.C. 94, 191 F.2d 450, 458.

The Court of Appeals, en banc, denied a rehearing. The Commission, Capital Transit and Radio petitioned this Court for certiorari in No. 224. Contingent upon the granting of certiorari in that case, Pollak and Martin, by cross-petition in No. 295, sought to prohibit Capital Transit from receiving and amplifying in its vehicles not only 'commercials' and 'announcements,' but also the balance of the radio programs. We granted certiorari in both cases because of the novelty and practical importance to the public of the questions involved. 342 U.S. 848, 72 S.Ct. 77. We have treated the petitions as though they were cross-petitions in a single case.

1. Further facts.—In this proceeding the courts are expressly restricted to the facts found by the Commission, insofar as those findings do not appear to be unreasonable, arbitrary or capricious.5

After reciting that it had given careful consideration to the testimony bearing on public convenience, comfort and safety, the Commission said that—

'From the testimony of record, the conclusion is inescapable that radio reception in streetcars and busses is not an obstacle to safety of operation.

'Further, it is evident that public comfort and convenience is not impaired and that, in fact, through the creation of better will among passengers, it tends to improve the conditions under which the public ride.' 81 P.U.R. (N.S.), at 126.

Bearing upon its conclusion as to the public comfort and convenience resulting from the radio programs, the Commission cited the opinions of car and bus operators to the effect that the 'music on the vehicles had a tendency to keep the passengers in a better mood, and that it simplified transit operations.' Id., at 125. The Commission also said that its analysis of accidents 'reflects the fact that the radio does not in any way interfere with efficient operation and has not been the cause of any accidents, according to the testimony of * * * a safety supervisor.' Ibid. Likewise, the Commission set forth the following as one premise for its conclusions:

'A public opinion survey was conducted by Edward G. Doody & Company, from October 11, 1949, to October 17, 1949, in order to determine the attitude of Capital Transit Company customers toward transit radio. This survey employed the rules of random selection and was confined to interviews aboard radio-equipped vehicles. The principal results obtained through the survey, as presented in this record, were as follows:

'Of those interviewed, 93.4 per cent were not opposed; that is, 76.3 were in favor, 13.9 said they didnt' care, and 3.2 said they didn't know; 6.6 per cent were not in favor, but when asked the question 'Well, even though you don't care for such programs personally, would you object if the majority of passengers wanted busses and streetcars equipped with radio receivers,' 3.6 said they would not object or oppose the majority will. Thus, a balance of 3 per cent of those interviewed were firmly opposed to the use of radios in transit vehicles.'6 Ibid.

2. Statutory authority.—Apart from the constitutional issues, the order of the Commission dismissing its investigation was in accord with its prescribed statutory procedure and within the discretion properly vested in the Commission by Congress.

Transit radio service is a new income-producing incident of the operation of railway properties. The profit arises from the rental of facilities for commercial advertising purposes. This aspect of the enterprise bears some relation to the long-established practice of renting space for visual advertising on the inside and outside of streetcars and busses.

Through these programs Capital Transit seeks to improve its public relations. To minimize objection to the advertising features of the programs, it requires that at least 90% of the radio time be used for purposes other than commercials and announcements. This results in programs generally consisting of 90% music, 5% news, weather reports and matters of civic interest and 5% commercial advertising. The advertising is confined to statements of 15 to 30 seconds each. It occupies a total of about three minutes in each hour.

In view of the findings and conclusions of the...

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