United Telegraph Workers, AFL-CIO v. FCC

• Decision Date: 04 December 1970
• Docket Number: No. 23852.,23852.
• Citation: 436 F.2d 920
• Parties: UNITED TELEGRAPH WORKERS, AFL-CIO, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Western Union Telegraph Company, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

436 F.2d 920 (1970)

UNITED TELEGRAPH WORKERS, AFL-CIO, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Western Union Telegraph Company, Intervenor.

No. 23852.

United States Court of Appeals, District of Columbia Circuit.

Argued June 22, 1970.

Decided December 4, 1970.

Mr. Isaac N. Groner, Washington, D. C., with whom Mr. William Kanter, Washington, D. C., was on the brief, for petitioner.

Mr. Stuart F. Feldstein, Counsel, Federal Communications Commission, with whom Messrs. Henry Geller, General Counsel, and John H. Conlin, Associate General Counsel, Federal Communications Commission, were on the brief, for respondent, Federal Communications Commission. Mrs. Lenore G. Ehrig, Counsel, Federal Communications Commission, also entered an appearance for respondent, Federal Communications Commission.

Mr. Lee A. Rau, of the Bar of the Supreme Court of California, pro hac vice by special leave of Court, for respondent, United States of America. Mr. Howard E. Shapiro, Atty., Department of Justice, also entered an appearance for respondent, United States of America.

Mr. Melvin Richter, Washington, D. C., with whom Messrs. Jack Werner, Washington, D. C., Sidney Goldman and Harold L. Talisman, Washington, D. C., were on the brief, for intervenor.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and DAVIS,^* Judge, United States Court of Claims.

DAVIS, Judge:

Western Union filed with the Federal Communications Commission a tariff which became effective January 1, 1970 for a new service called Mailgram which it proposed to offer in cooperation with the Post Office department for a two-year experimental period. United Telegraph Workers, the union which represents all of Western Union's employees in the continental United States,¹ petitioned to suspend the tariff. The Commission denied the petition, without a formal hearing, in a memorandum opinion and order of which the union now seeks review.

The Mailgram experiment is an attempt to test the feasibility of a record message service intermediate in speed and cost between conventional telegrams and first class mail.² This interim service will be available to Western Union's Telex³ and Info-Com⁴ subscribers in twelve designated cities⁵ in the continental United States. Through teleprinters on their premises, these subscribers will be able to dial into Western Union's communications network and transmit messages to 110 post offices strategically located in the 48 contiguous states and the District of Columbia in which receiving teleprinters are to be installed. There postal employees will remove the message from the teleprinter, scan it for completeness and legibility, and fold and insert it in a window-envelope for placing in the first-class mail stream. For each Mailgram placed in the mail Western Union will pay the Post Office Department twenty-five cents, consisting of a fifteen-cent handling charge and the ten-cent domestic air mail postage fee.

The Commission's refusal to suspend the tariff is challenged on several fronts. The perspective from which we must examine those attacks is that, at this stage, the program is temporary and experimental. While the Commission's order is clearly final for purposes of judicial review, Isbrandtsen Company v. United States, 93 U.S.App.D.C. 293, 211 F.2d 51, cert. denied sub nom. Japan-Atlantic and Gulf Conference v. United States, 347 U.S. 990, 74 S.Ct. 852, 98 L.Ed. 1124 (1954), the only project approved was for a two-year term and was frankly experimental in character. The Commission made it clear that it viewed the program in that way, and so must we. We do not have before us a permanent Mailgram undertaking or one of indefinite duration, and we do not decide the legality of such a plan.

The petitioner claims, first of all, that any Mailgram project necessarily violates a "historic telecommunications policy" of Congress which forbids any cooperative service furnished jointly by Western Union and the Post Office Department — a policy which is said to precede and be infused into the Communications Act of 1934. The foundation on which this imputed policy rests is the failure of Congress to enact various proposals made during the last hundred years for public ownership or operation of the telegraph system. See, e. g., S. Doc. No. 399, 63d Cong., 2d Sess. (1914) (App. A, pp. 18 et seq., "Historical Résumé of Agitation for Government Ownership of the Telegraph and Telephone of the United States"). But even if we recognize arguendo a currently vital congressional policy, founded on such inaction, against public ownership or operation of the telegraph, we find nothing in the Mailgram experiment which is inconsistent. Mailgram in no sense represents a government takeover of the telegraph system, nor the establishment of post offices as places from which to transmit telegrams. Western Union will continue to offer its full conventional telegram service during the two-year span. Mailgram will be available only to certain of Western Union's customers who will originate messages on the company's equipment and transmit them over its communications network. The Post Office's sole involvement will be in preparing mailgrams for mailing, after receipt over the telegraph wires, and in delivering them as first-class mail. The materials petitioner cites as evidence of the Congressional policy it invokes concerned efforts by the Post Office to acquire or lease telegraph wires and facilities for public use, to integrate telegraph communications as a normal part of the postal system (as in other countries) by contract, or to make post offices available as regular depots for the public sending of wires.⁶ Whatever policy may be drawn from those incidents does not at all reach to the very limited cooperation between the Department and Western Union in the proposed Mailgram System. There has never been a policy against any cooperation between telegraph companies and the Post Office. Indeed, Mailgram is not much of a step beyond the common and traditional practice of delivering copies of telegrams through the mail.

The next question is whether approval of experimental Mailgram is beyond the Commission's authority under the Communications Act of 1934, 47 U.S.C. §§ 151 et seq. — apart from the alleged historical policy we have just discussed. The Act grants the Commission broad responsibility to forge a rapid and efficient communications system,⁷ and broad authority to implement that responsibility.⁸ Courts have interpreted the agency's powers liberally, recognizing that it was not the Congressional purpose to "stereotype the powers of the Commission to specific details in regulating a field of enterprise the dominant characteristic of which was the rapid pace of its unfolding." National Broadcasting Company v. United States, 319 U.S. 190, 219, 63 S.Ct. 997, 1011, 87 L. Ed. 1344 (1943). Thus, the Supreme Court upheld the Commission's assertion of jurisdiction over community antenna television systems, even though the Commission had unsuccessfully sought specific legislative authorization for that jurisdiction. United States v. Southwestern Cable Company, 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968). In Connecticut Committee Against Pay TV v. FCC, 112 U.S.App.D.C. 248, 301 F.2d 835, cert. denied, 371 U.S. 816, 83 S.Ct. 28, 9 L.Ed.2d 57 (1962), this court upheld the Commission's right to authorize a three-year experiment in subscription television service. The opinion for the court by Judge (now Chief Justice) Burger emphasized the trial and experimental nature of the operation. Later in a case involving Commission rules regulating a permanent subscription television system, the court felt it appropriate to give "fresh consideration" to the question of whether the Commission had authority to license pay television for an indefinite period. National Association of Theatre Owners v. FCC, 136 U.S.App.D.C. 352, 357, 420 F.2d 194, 199 (1969), cert. denied, 397 U.S. 922, 90 S.Ct. 914, 25 L.Ed.2d 102 (1970).

The experimental nature of the service now before us is equally significant. The Commission has a mandate under § 218 of the Act, 47 U.S.C. § 218 (1964), to inform itself of technical advancements and improvements in modes of communication so that "the benefits of new inventions and developments may be made available to the people of the United States." This expression of congressional desire that the Commission encourage technological innovation requires us to demand a compelling showing of legislative prohibition before we strike down an experiment such a Mailgram which is designed to furnish the informational input that makes such innovation possible.

No such showing has been made. Petitioner points out that in general the Act contemplates private operation of "wire communication" (see, e. g., 47 U. S.C. § 153(h), (i)), but this expectation that private companies continue to be the normal transmitters of telegrams does not, in common sense, forbid ancillary, incidental, supplemental, or accessorial help by a federal agency.⁹ The supposed dilemma that, while the postal segment of Mailgram is part of the statutory "wire communication" to be regulated by the Commission (because it entails the "delivery of communications", 47 U.S.C. § 153(a)) it cannot be so regulated because the Commission has no authority over other federal entities, need not be resolved at this stage in analytic terms. If it turns out, as a result of the experiment, that there is need to control the end-portion of the service, it can then be decided whether the Commission can (and should) issue orders to the Post Office directly, or whether it should rather proceed by conditioning its approval of Western Union's further participation upon compliance with certain requirements as to mailing and delivery. The short of it is that, on the one side, there is nothing in the Act which must be read, against the...