United States v. Anaconda Co.
| Decision Date | 15 June 1977 |
| Docket Number | Misc. No. 77-0024. |
| Citation | 445 F. Supp. 486 |
| Parties | UNITED STATES of America, Petitioner, v. The ANACONDA COMPANY et al., Respondents. |
| Court | U.S. District Court — District of Columbia |
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Edward B. Craig, IV, U. S. Dept. of Justice, Consumer Affairs Section, Antitrust Div., Washington, D. C., for petitioner.
LeGrande L. Young, Greenwich, Conn., for defendant The Anaconda Co., Wire and Cable Div.
Anthony J. D'Auria, Cole & Dietz, New York City, for defendant Cadillac Cable Corp.
Leonard Sims, U. S. Industries, Inc., New York City, Fred F. Fielding, James S. Wright, Jr., Washington, D. C., for defendant Capital Wire and Cable Corp.
Thomas L. Seifert, Cerro Wire & Cable Co., Marmon Group Inc., Chicago, Ill., Fred F. Fielding, James S. Wright, Jr., Washington, D. C., for defendant Cerro-Marmon Corp.
Howard B. Cloth, Vice-President, Secretary and Counsel, Circle F Industries, Inc., Trenton, N. J., for defendant Circle F Industries, Inc.
J. M. Schwartz, Colonial Wire & Cable Co., New York City, for defendant Colonial Wire & Cable Co.
Milton Levitan, Gainsburg, Gottlieb, Levitan & Cole, New York City, for defendant Columbia Cable & Elec. Corp.
Gilbert S. Edelson, Roseman, Colin, Freund, Lewis & Cohen, New York City, for defendants Eagle Elec. Mfg. Co., Inc. and Slater Elec., Inc.
Gerald Gewirtz, United Technologies Corp., Hartford, Conn., Donald Letizia, Essex Group, Inc., Fort Wayne, Ind., for defendant Essex Group, Inc., A Wholly Owned Subsidiary of United Technologies Corp.
Edward V. Walsh, Jr., White, Walsh & O'Callaghan, Mineola, N. Y., for defendant Ettco Wire and Cable Corp.
Nancy L. Buc, Weil, Gotshal & Manges, New York City, Philip J. Harter, Washington, D. C., for defendant Leviton Mfg. Co., Inc.
Nancy L. Buc, Weil, Gotshal & Manges, New York City, Richard W. Zacks, Winograd, Shine & Zacks, Providence, R. I., Philip J. Harter, Washington, D. C., for defendants American Insulated Wire Co., Inc. and Rhode Island Insulated Wire Co.
William L. Allen, Jr., Hancock, Estabrook, Ryan, Shove & Hust, Syracuse, N. Y., for defendant Pass & Seymour, Inc.
Orin Purintun, Foley & Lardner, Milwaukee, Wis., for defendant Sierra Elec., Division of Sola Basic Industries, Inc. Van C. Wilks, Southwire Co., Carrollton, Ga., for defendant Southwire Co.
Neale F. Hooley, Hooley, Perselay, Butler & Kelly, Westfield, N. J., for defendant Triangle PWC, Inc., A Wholly Owned Subsidiary of Triangle Industries, Inc.
Ronald J. Greene, Christopher R. Lipsett, Wilmer, Cutler & Pickering, Washington, D. C., Max Thelen, Jr., Fredric C. Nelson, Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., for Kaiser Aluminum; Robert W. Turner, Dennis M. Day, Kaiser Aluminum & Chemical Corp., Oakland, Cal., of counsel.
Michael D. Hausman, Kohn, Milstein & Cohen, Washington, D. C., for defendant Triangle PWC, Inc.
William N. Letson, Schiff, Hardin & Waite, Washington, D. C., for defendant Coleman Cable and Wire Co., Inc.
This matter arises before the court on petition of the United States for the Consumer Product Safety Commission to enforce certain subpoenas duces tecum and ad testificandum issued by the Commission on November 24, 1976. The Commission issued the subpoenas pursuant to 15 U.S.C. § 2076(b) to assist its staff in an investigation of whether residential aluminum wiring systems used in 15 and 20 ampere "branch circuit" construction present a substantial product hazard as defined in section 15(a)(2) of the Consumer Product Safety Act, 15 U.S.C. § 2064(a)(2).1 The present subpoenas were issued after the Commission considered various motions to quash or limit earlier subpoenas directed to the same parties; modifications along the lines suggested by several respondents were incorporated into the subpoenas at issue.2 This court has jurisdiction over the enforcement petition. 15 U.S.C. § 2076(c).
Two types of subpoenas have been issued; one set is directed to manufacturers of aluminum wiring and the other set seeks information from manufacturers of electrical devices used in aluminum wiring systems. Both types of subpoenas require information for four broad subject areas: production data, technical data, sales and marketing data, and communications concerning the products. Nineteen companies have failed to comply with the subpoenas and have been made respondents in the present enforcement action. These respondents resist compliance on four grounds: (1) that the Commission lacks jurisdiction over aluminum wiring systems because they are not "consumer products" within the meaning of the Consumer Product Safety Act, and, in any case, the court is bound on a collateral estoppel basis by a prior ruling on this point; (2) that the Commission has issued investigatory subpoenas in what is an essentially adjudicatory proceeding without providing the protections of the adjudicative rules to respondents; (3) that the subpoenas may not be enforced in the absence of published procedural regulations; and (4) that the subpoenas unlawfully attempt to apply the Consumer Product Safety Act retrospectively.
The court has but a limited role to play in the enforcement of administrative subpoenas. The scope of issues that can be litigated in an enforcement proceeding is narrow, because of the Government's interest in expeditious investigation to carry out its congressionally mandated duties. See United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946); Endicott Johnson v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943); Federal Trade Commission v. Texaco, No. 74-1547, 180 U.S.App.D.C. 390, 555 F.2d 862 (Feb. 23, 1977) (en banc). And although the court's function is "neither minor nor ministerial,"3 it need ascertain only whether "the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant." United States v. Morton Salt Co., supra, 338 U.S. at 652, 70 S.Ct. at 369. In addition, a respondent may challenge an agency's exercise of its subpoena power on the ground that it is unreasonable, i. e., unduly burdensome. Oklahoma Press Publishing Co. v. Walling, supra, 327 U.S. at 208, 66 S.Ct. 494; Federal Trade Commission v. Texaco, supra, 180 U.S.App.D.C. at 409, 555 F.2d at 881. Enforcement proceedings of this sort generally are summary in nature. Federal Trade Commission v. Texaco, supra, 180 U.S.App.D.C. at 410, n. 48, 555 F.2d at 882 n. 48; see Fed.R.Civ.P. 81(a)(3) (). With these general principles in mind, the court may evaluate the defenses raised by respondents in this action.
Respondents challenge the statutory authority of the Commission to investigate aluminum home wiring systems on the ground that such wiring is not a "consumer product" within the meaning of section 3(a)(1) of the Consumer Product Safety Act, 15 U.S.C. § 2052(a)(1).4 Alternatively, even if this court should disagree with respondents' interpretation of what qualifies as a "consumer product," respondents argue that the court nevertheless is bound by the recent decision of the district court in Delaware, finding aluminum home wiring systems to be outside the definition of consumer products under the Act, on collateral estoppel principles. Kaiser Aluminum & Chemical Corp. v. Consumer Product Safety Commission, 428 F.Supp. 177 (D.Del.1977).
Section 3(a)(1) of the Act provides:
The term "consumer product" means any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise.
15 U.S.C. § 2052(a)(1). Respondents do not allege the applicability of any of the specifically enumerated exceptions to the definition of consumer products. Id. §§ 2052(a)(1)(A)-(a)(1)(I). The key question therefore becomes whether aluminum home wiring systems are "articles . . . for use in or around . . . a residence." The plain words of the statute suggest an extremely broad definition of consumer products. It seems clear that aluminum wiring systems are "for use in . . a residence." One uses a wiring system each time he turns on a light or plugs in a toaster. By definition, home wiring systems are used in residences. Certainly such systems qualify as "articles." The respondents contend, nevertheless, that the plain words of the Act exclude wiring systems because they are component parts of a home.5 As integral parts of finished residences, respondents suggest that they are part of a home and not for use in a home. See Kaiser Aluminum & Chemical Corp. v. Consumer Product Safety Commission, 428 F.Supp. at 181 (D.Del.1977). Yet respondents offer no convincing reasons why the two concepts are mutually exclusive. Wiring systems do not logically fail to qualify as articles for use in residence solely because they are component parts of a house; the definition of consumer product in the Act is sufficiently broad to cover aluminum home wiring systems. For these reasons, the plain words of the Act do not support respondents' interpretation of the definition of a consumer product.
Next respondents rely on the legislative history of the Act to support their contention that aluminum home wiring systems do not qualify as consumer products. The legislative history, however, is at best inconclusive on that question.6 The Senate Report notes:
Because the product safety authority is designed to be comprehensive in its scope, the definition of "consumer...
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