After rulemaking proceedings under the Communications Act of
1934, as amended, in which respondent appeared, filed written
objections and argued orally, the Federal Communications Commission
amended its rules so as to provide, in effect, that it would issue
no license for an additional television broadcast station to any
party already having five such stations. On the same day, applying
this rule, the Commission dismissed, without hearing, respondent's
application for a license for an additional television broadcast
station, because respondent already had five such stations. Under
the Communications Act, the Administrative Procedure Act and 5
U.S.C. § 1034, respondent applied to the Court of Appeals for
review of the Commission's order amending its rule.
Held:
1. Though the question of respondent's right to appeal was not
raised by either party or by the Court of Appeals, it may be
considered by this Court. P.
351 U. S.
197.
2. Respondent had standing to bring this action. Pp.
351 U. S.
198-200.
(a) The process of rulemaking having been completed, the amended
rules constituted final agency action within the meaning of the
Administrative Procedure Act. Pp.
351 U. S.
198-199.
(b) The amended rules presently "aggrieve" respondent. Pp.
351 U. S.
199-200.
3. Section 309(b) of the Communications Act, which requires a
"full hearing" before denial of an application for a license, does
not prevent the Commission from adopting the rules here involved
limiting the number of broadcast stations that will be licensed to
any one party. Pp.
351 U. S.
200-206.
(a) Section 309 (b) entitles each applicant for a license to a
"full hearing," including the right to present his case or defense
by oral or documentary evidence, to submit rebuttal evidence, and
to conduct such cross-examination as may be required for a full and
true disclosure of the facts. P.
351 U. S.
202.
(b) However, § 309(b) does not withdraw from the Commission
the rulemaking authority necessary for the orderly conduct of its
business. Pp.
351 U. S.
202-203.
Page 351 U. S. 193
(c) Nor does § 309(b) bar rules that declare a present
intent to limit the number of stations consistent with a
permissible "concentration of control." Pp.
351 U. S.
203-205.
(d) The Act and rules are to be read as providing a "full
hearing" for applicants who have reached the existing limit of
stations, upon presentation of proper applications that set out
adequate reasons why the rules should be waived or amended. The
Act, considered as a whole, requires no more. P.
351 U. S.
205.
95 U.S.App.D.C. 97, 220 F.2d 204, reversed and remanded.
MR. JUSTICE REED delivered the opinion of the Court.
The Federal Communications Commission issued, on August 19,
1948, a notice of proposed rulemaking under the authority of 47
U.S.C. §§ 303(r), 311, 313 and 314 (Communications Act of
1934, as amended, 47 U.S.C. § 301
et seq.). It was
proposed, so far as is pertinent to this case, to amend Rules 3.35,
3.240, and 3.636 relating to Multiple Ownership of standard, FM and
television broadcast stations. Those rules provide that licenses
for broadcasting stations will not be granted if the applicant,
directly or indirectly, has an interest in other stations beyond a
limited number. The purpose of the limitations is to avoid
overconcentration of broadcasting facilities.
As required by 5 U.S.C. § 1003(b), the notice permitted
"interested" parties to file statements or briefs. Such parties
might also intervene in appeals. 47 U.S.C. § 402(d) and (e).
Respondent, licensee of a number of radio and television stations,
filed a statement objecting to the proposed changes, as did other
interested broadcasters.
Page 351 U. S. 194
Respondent based its objections largely on the fact that the
proposed rules did not allow one person to hold as many FM and
television stations as standard stations. Storer argued that such
limitations might cause irreparable financial damage to owners of
standard stations if an obsolescent standard station could not be
augmented by FM and television facilities.
In November, 1953, the Commission entered an order amending the
Rules in question without significant changes from the proposed
forms. [
Footnote 1] A review
was sought
Page 351 U. S. 195
in due course by respondent in the Court of Appeals for the
District of Columbia Circuit under 5 U.S.C. § 1034, [
Footnote 2] 47 U.S.C. § 402(a),
[
Footnote 3] and 5 U.S.C.
§ 1009(a), (c). [
Footnote
4] Respondent alleged it owned or controlled, within the
meaning of the Multiple Ownership Rules, seven standard radio, five
FM radio, and five television broadcast stations. It asserted that
the Rules complained of were in conflict with the statutory
mandates that applicants should be granted licenses if the public
interest would be served and that applicants must have a hearing
before denial of an application. 47 U.S.C. § 309(a) and (b).
[
Footnote 5]
Page 351 U. S. 196
Respondent also claimed:
"The Rules, in considering the ownership of one (1%) percent or
more of the voting stock of a broadcast licensee corporation as
equivalent to ownership, operation or control of the station, are
unreasonable and bear no rational relationship to the national
Anti-Trust policy."
This latter claim was important to respondent because,
allegedly, 20% of its voting stock was in scattered ownership, and
was traded in by licensed dealers. This stock was thus beyond its
control.
Respondent asserted it was a "party aggrieved" and a "person
suffering legal wrong" or adversely affected under the several
statutes that authorize review of FCC action.
See notes
2 3 and |
3 and S.
192fn4|>4,
supra. It stated its injuries from the Rules
thus:
"Storer is adversely affected and aggrieved by the Order of the
Commission adopted on November 25, 1953, amending the Multiple
Ownership Rules, in that:"
"(a) Storer is denied the right of a full and fair hearing to
determine whether its ownership of an interest in more than seven
(7) standard radio and five (5) television broadcast stations, in
light of and upon a showing of all material circumstances, will
Page 351 U. S. 197
thereby serve the public interest, convenience and
necessity."
"(b) The acquisition of Storer's voting stock by the public
under circumstances beyond the control of Storer, may and could be
violative of the Multiple Ownership rules, as amended, and result
in a forfeiture of licenses now held by Storer, with resultant loss
and injury to Storer and to all other Storer stockholders."
On the day the amendments to the Rules were adopted, a pending
application of Storer for an additional television station at Miami
was dismissed on the basis of the Rules.
While the question of respondent's right to appeal has not been
raised by either party or by the Court of Appeals, our jurisdiction
is now mooted. It may be considered.
Federal Communications
Commission v. National Broadcasting Co., 319 U.
S. 239,
319 U. S. 246.
Jurisdiction depends upon standing to seek review, and upon
ripeness. If respondent could not rightfully seek review from the
order adopting the challenged regulations, it must await action to
its disadvantage under them, and neither the Court of Appeals nor
this Court has jurisdiction of the controversy. Under the
above-cited Code sections, review of Commission action is granted
any party aggrieved or suffering legal wrong by that action.
[
Footnote 6]
Page 351 U. S. 198
We think respondent had standing to sue at the time it exercised
its privilege. The process of rulemaking was complete. It was final
agency action, 5 U.S.C. § 1001(c) and (g), by which Storer
claimed to be "aggrieved." When the authority to appeal was
substantially the same, we held that an appellant who complained of
the grant of a license to a competitor because it would reduce its
own income had standing to appeal against a contention, admittedly
sound, that such economic injury to appellant was not a proper
issue before the Commission. We said:
"Congress had some purpose in enacting section 402(b)(2). It may
have been of opinion that one likely to be financially injured by
the issue of a license would by the only person having a sufficient
interest to bring to the attention of the appellate court errors of
law in the action of the Commission in granting the license. It is
within the power of Congress to confer such standing to prosecute
an appeal."
Federal Communications Comm'n v. Sanders Bros. Radio
Station, 309 U. S. 470,
309 U. S. 477.
We added that such an appellant could raise any relevant question
of law in respect to the order.
Again, in
Columbia Broadcasting System v. United
States, 316 U. S. 407,
this Court considered the problem of standing to review Commission
action under the then existing § 402(a), 48 Stat. 1093, and
the Urgent Deficiencies Act, 38 Stat. 219. CBS there sought review
of the adoption of Chain Broadcasting Regulations by the
Commission. Against the contention that the adoption of regulations
did not command CBS to do or refrain from doing anything (dissent,
316 U.S. at
316 U. S.
429), this Court held that the order promulgating
regulations was
Page 351 U. S. 199
reviewable because it presently affected existing contractual
relationships. It said:
"The regulations are not any the less reviewable because their
promulgation did not operate of their own force to deny or cancel a
license. It is enough that failure to comply with them penalizes
licensees, and appellant, with whom they contract. If an
administrative order has that effect, it is reviewable, and it does
not cease to be so merely because it is not certain whether the
Commission will institute proceedings to enforce the penalty
incurred under its regulations for non-compliance."
Id. at
316 U. S.
417-418. The Court said that the regulations "presently
determine rights."
Id. at
316 U. S.
421.
"Appellant's standing to maintain the present suit in equity is
unaffected by the fact that the regulations are not directed to
appellant and do not, in terms, compel action by it or impose
penalties upon it because of its action or failure to act. It is
enough that, by setting the controlling standards for the
Commission's action, the regulations purport to operate to alter
and affect adversely appellant's contractual rights and business
relations with station owners whose applications for licenses the
regulations will cause to be rejected and whose licenses the
regulations may cause to be revoked."
Id. at
316 U. S. 422.
See Federal Communications Commission v. American Broadcasting
Co., 347 U. S. 284,
347 U. S. 289,
and
E; Dorado Oil Works v. United States, 328 U. S.
12,
328 U. S.
18-19.
The regulations here under consideration presently aggrieve the
respondent. The Commission exercised a power of rulemaking which
controls broadcasters. The Rules now operate to control the
business affairs of Storer. Unless it obtains a modification of
this declared administrative
Page 351 U. S. 200
policy, Storer cannot enlarge the number of its standard of FM
stations. It seems, too, that the note to Rule 3.636 (
n 1,
supra) endangers Storer's
stations as alleged in its petition for review.
See this
opinion,
supra, p.
351 U. S. 197,
at (b). Commission hearings are affected now by the Rules. Storer
cannot cogently plan its present or future operations. [
Footnote 7] It cannot plan to enlarge
the number of its standard or FM stations, and, at any moment, the
purchase of Storer's voting stock by some member of the public
could endanger its existing structure. These are grievances
presently restricting Storer's operations. In the light of the
legislation allowing review of the Commission's actions, we hold
that Storer has standing to bring this action.
In its petition for review, Storer prayed the court to vacate
the provisions of the Multiple Ownership Rules insofar as they
denied to an applicant already controlling the allowable number of
stations a "full and fair hearing" to determine whether additional
licenses to the applicant would be in the public interest.
[
Footnote 8] The Court of
Appeals struck out, as contrary to § 309(a) and (b) of the
Communications Act (
n 5,
supra), the words italicized in Rule 3.636 (
n 1,
supra) and the similar words in
Rules 3.35 and 3.240. The case was remanded to the Commission with
directions to eliminate these words. 95 U.S.App.D.C. 97, 220 F.2d
204. We granted certiorari, 350 U.S. 816
Page 351 U. S. 201
.
The Commission asserts that its power to make regulations gives
it the authority to limit concentration of stations under a single
control. [
Footnote 9] It argues
that rules may go beyond the technical aspects of radio, that rules
may validly give concreteness to a standard of public interest, and
that the right to a hearing does not exist where an applicant
admittedly does not meet those standards, as there would be no
facts to ascertain. The Commission shows that its regulations
permit applicants to seek amendments and waivers of, or exceptions
to, its Rules. [
Footnote 10]
It adds:
"This does not mean, of course, that the mere filing of an
application for a waiver . . . would necessarily require the
holding of a hearing, for, if that were the case, a rule would no
longer be a rule. It means
Page 351 U. S. 202
only that it might be an abuse of discretion to fail to hear a
request for a waiver which showed, on its face, the existence of
circumstances making application of the rule inappropriate."
Respondent defends the position of the Court of Appeals. It
urges that an application cannot be rejected under 47 U.S.C. §
309 without a "full hearing" to applicant. We agree that a "full
hearing" under § 309 means that every party shall have the
right to present his case or defense by oral or documentary
evidence, to submit rebuttal evidence, and to conduct such
cross-examination as may be required for a full and true disclosure
of the facts.
Cf. 5 U.S.C. § 1006(c). Such a hearing
is essential for wise and just application of the authority of
administrative boards and agencies.
We do not read the hearing requirement, however, as withdrawing
from the power of the Commission the rulemaking authority necessary
for the orderly conduct of its business. As conceded by Storer,
"Section 309(b) does not require the Commission to hold a
hearing before denying a license to operate a station in ways
contrary to those that the Congress has determined are in the
public interest. [
Footnote
11]"
The challenged Rules contain limitations
Page 351 U. S. 203
against licensing not specifically authorized by statute. But
that is not the limit of the Commission's rulemaking authority. 47
U.S.C. § 154(i) and § 303(r) grant general rulemaking
power not inconsistent with the Act or law.
This Commission, like other agencies, deals with the public
interest.
Scripps-Howard Radio v. Federal Communications
Commission, 316 U. S. 4,
316 U. S. 14. Its
authority covers new and rapidly developing fields. Congress sought
to create regulation for public protection with careful provision
to assure fair opportunity for open competition in the use of
broadcasting facilities. Accordingly, we cannot interpret §
309(b) as barring rules that declare a present intent to limit the
number of stations consistent with a permissible "concentration of
control." It is but a rule that announces the Commission's attitude
on public protection against such concentration. [
Footnote 12] The Communications Act must be
read as a whole and with appreciation of the responsibilities of
the body charged with its fair and efficient operation. The growing
complexity of our economy induced the Congress to place regulation
of businesses like communication in specialized agencies with broad
powers. Courts are slow to interfere with their conclusions when
reconcilable with statutory directions. [
Footnote 13] We think the Multiple Ownership Rules, as
adopted, are reconcilable with the Communications
Page 351 U. S. 204
Act as a whole. An applicant files his application with
knowledge of the Commission's attitude toward concentration of
control.
In
National Broadcasting Co. v. United States,
319 U. S. 190,
similar rules prohibiting certain methods of chain broadcasting
were upheld despite a claim that the Rules caused licenses to be
denied without "examination of written applications presented . . .
as required by §§ 308 and 309."
Id. at
319 U. S. 230.
[
Footnote 14] The
National Broadcasting case validated numerous regulations
couched in the prohibitory language of the present regulations. The
one in the margin will serve as an example. [
Footnote 15]
In the
National Broadcasting case, we called attention
to the necessity for flexibility in the Rules there involved.
Page 351 U. S. 205
The
"Commission provided that 'networks will be given full
opportunity, on proper application for new facilities or renewal of
existing licenses, to call to our attention any reasons why the
principle should be modified or held inapplicable.'"
Id. at
319 U. S. We
said:
"The Commission therefore did not bind itself inflexibly to the
licensing policies expressed in the Regulations. In each case that
comes before it, the Commission must still exercise an ultimate
judgment whether the grant of a license would serve the 'public
interest, convenience, or necessity.' If time and changing
circumstances reveal that the 'public interest' is not served by
application of the Regulations, it must be assumed that the
Commission will act in accordance with its statutory
obligations."
Id. at
319 U. S. 225.
That flexibility is here under the present § 309(a) and (b)
and the FCC's regulations.
See n 10,
supra. We read the Act and Regulations
as providing a "full hearing" for applicants who have reached the
existing limit of stations, upon their presentation of applications
conforming to Rules 1.361(c) and 1.702, that set out adequate
reasons why the Rules should be waived or amended. The Act,
considered as a whole, requires no more. We agree with the
contention of the Commission that a full hearing, such as is
required by § 309(b),
note
5 supra, would not be necessary on all such
applications. As the Commission has promulgated its Rules after
extensive administrative hearings, it is necessary for the
accompanying papers to set forth reasons, sufficient if true, to
justify a change or waiver of the Rules. We do not think Congress
intended the Commission to waste time on applications that do not
state a valid basis for a hearing. If any applicant is aggrieved by
a refusal, the way for review is open.
Page 351 U. S. 206
We reverse the judgment of the Court of Appeals, and remand the
case to that court so that it may consider respondent's other
objections to the Multiple Ownership Rules.
Reversed and remanded.
MR. JUSTICE DOUGLAS concurs in the result.
[
Footnote 1]
Section 3.636 will illustrate the problem:
"§ 3.636
Multiple ownership. (a) No license for a
television broadcast station shall be granted to any party
(including all parties under common control) if:"
"(1) Such party directly or indirectly owns, operates, or
controls another television broadcast station which serves
substantially the same area; or"
"(2) Such party, or any stockholder, officer or director of such
party, directly or indirectly owns, operates, controls, or has any
interest in, or is an officer or director of any other television
broadcast station if the grant of such license would result in a
concentration of control of television broadcasting in a manner
inconsistent with public interest, convenience, or necessity. In
determining whether there is such a concentration of control,
consideration will be given to the facts of each case with
particular reference to such factors as the size, extent, and
location of areas served, the number of people served, and the
extent of other competitive service to the areas in question.
The Commission, however, will in any event consider that there
would be such a concentration of control contrary to the public
interest, convenience or necessity for any party or any of its
stockholders, officers, or directors to have a direct or indirect
interest in, or be stockholders, officers, or directors of more
than five television broadcast stations.*"
(The italicized material is common to all three Rules.)
*
"In applying the provisions of paragraph (a) of this section to
the stockholders of a corporation which has more than 50 voting
stockholders, only those stockholders need be considered who are
officers or directors or who directly or indirectly own 1 per cent
or more of the outstanding voting stock."
47 CFR, Rev. 1953. The standard and FM Rules limited stations to
seven.
[
Footnote 2]
"Any party aggrieved by a final order reviewable under this
chapter may, within sixty days after entry of such order, file in
the court of appeals, wherein the venue as prescribed by section
1033 of this title lies, a petition to review such order. . .
."
[
Footnote 3]
"(a) Any proceeding to enjoin, set aside, annul, or suspend any
order of the Commission under this chapter (except those appealable
under subsection (b) of this section) shall be brought as provided
by and in the manner prescribed in chapter 19A of Title 5."
[
Footnote 4]
"Except so far as (1) statutes preclude judicial review or (2)
agency action is by law committed to agency discretion --"
"(a) Any person suffering legal wrong because of any agency
action, or adversely affected or aggrieved by such action within
the meaning of any relevant statute, shall be entitled to judicial
review thereof."
"
* * * *"
"(c) Every agency action made reviewable by statute, and every
final agency action for which there is no other adequate remedy in
any court shall be subject to judicial review. . . ."
[
Footnote 5]
47 U.S.C. § 309:
"Examination; action by Commission."
"(a) If upon examination of any application provided for in
section 308 of this title the Commission shall find that public
interest, convenience, and necessity would be served by the
granting thereof, it shall grant such application."
"(b) Notification of denial; contents; reply; hearing;
intervention."
"If, upon examination of any such application, the Commission is
unable to make the finding specified in subsection (a) of this
section, it shall forthwith notify the applicant and other known
parties in interest of the grounds and reasons for its inability to
make such finding. . . . Following such notice, the applicant shall
be given an opportunity to reply. If the Commission, after
considering such reply, shall be unable to make the finding
specified in subsection (a) of this section, it shall formally
designate the application for hearing on the grounds or reasons
then obtaining and shall notify the applicant . . . specifying with
particularity the matters and things in issue. . . . Any hearing
subsequently held upon such application shall be a full hearing in
which the applicant and all other parties in interest shall be
permitted to participate but in which both the burden of proceeding
with the introduction of evidence upon any issue specified by the
Commission, as well as the burden of proof upon all such issues,
shall be upon the applicant."
[
Footnote 6]
Legal wrong, as a ground for standing to appeal, was introduced
by the Administrative Procedure Act, § 10(a). 60 Stat. 243. In
explanation the reports of the Senate, No. 752, 79th Cong., 1st
Sess. 26, and the House, No. 1980, 79th Cong., 2d Sess. 42, define
"legal wrong":
"The phrase 'legal wrong' means such a wrong as is specified in
section 10(e). It means that something more than mere adverse
personal effect must be shown in order to prevail -- that is, that
the adverse effect must be an illegal effect."
Section 10(e) of the bill required reviewing courts to "hold
unlawful any action . . . (3) contrary to statutes or statutory
right." Section 10(e) of the Act is now in substantially the same
language. 5 U.S.C. § 1009(e).
[
Footnote 7]
Cf. Frozen Food Express v. United States, 351 U. S.
40,
351 U. S.
43-44.
[
Footnote 8]
Storer also attacked the 1% ownership provision that appears as
a note to Rule 3.636,
n 1,
supra. This was not passed upon by the Court of Appeals.
95 U.S.App.D.C. 97, 220 F.2d 204. Its judgment leaves that portion
of the Rule unaffected. As there was no cross-petition for
certiorari, we leave open the question of its validity.
[
Footnote 9]
"The Commission may perform any and all acts, make such rules
and regulations, and issue such orders, not inconsistent with this
chapter, as may be necessary in the execution of its function."
47 U.S.C. § 154(i).
"Except as otherwise provided in this chapter, the Commission
from time to time, as public convenience, interest, or necessity
requires, shall --"
"
* * * *"
"(f) Make such regulations not inconsistent with law as it may
deem necessary to prevent interference between stations and to
carry out the provisions of this chapter:"
"
* * * *"
"(r) Make such rules and regulations and prescribe such
restrictions and conditions, not inconsistent with law, as may be
necessary to carry out the provisions of this chapter. . . ."
47 U.S.C. § 303.
[
Footnote 10]
47 CFR, Rev.1953, § 1.361(c):
"(c) Applications which, because of the nature of the particular
rule, regulation, or requirement involved, are patently not in
accordance with the Commission's rules, regulations, or other
requirements will be considered defective, and will be dismissed
unless accompanied by a request of the applicant for waiver of, or
exception to, any rule, regulation, or requirements with which the
application is in conflict. Such requests shall show the nature of
the waiver or exception desired and set forth the reasons in
support thereof."
Section 1.702:
"
Petition for amendment or waiver of rules. Any
interested person may petition for issuance, amendment, repeal or
waiver of any rule or regulation. Such petition shall show the text
of the proposed rule, or its change, and set forth the reason in
support of the petition."
See also 47 CFR, 1941 Supp., §§ 1.72,
1.81.
[
Footnote 11]
See 47 U.S.C. §§ 310 and 311.
Cf.
Ashbacker Radio Corp. v. Federal Communications Commission,
326 U. S. 327,
326 U. S. 333,
n. 9, and 47 CFR, Rev. 1953 § 1.724;
Felman v. United
States, 339 U.S. 973;
Federal Communications Comm'n v.
American Broadcasting Co., 347 U. S. 284.
[
Footnote 12]
See National Broadcasting Co. v. United States,
319 U. S. 190,
319 U. S. 196.
We said last Term that determination of improper concentration of
control was for appraisal by the Commission after hearing.
Federal Communications Commission v. Allentown Broadcasting
Co., 349 U. S. 358,
349 U. S.
363-364.
[
Footnote 13]
See Unemployment Compensation Comm'n v. Aragan,
329 U. S. 143,
329 U. S. 153;
O'Leary v. Brown-Pacific-Maxon, 340 U.
S. 504,
340 U. S.
508.
[
Footnote 14]
Point III of the National Broadcasting Company brief argued the
matter under this heading, "The Commission Cannot Escape Its Duty
to Evaluate and Decide Each License Application on Its Own Facts."
At that time, § 309(a) had the hearing provision. It read:
"SEC. 309. (a) If, upon examination of any application for a
station license or for the renewal or modification of a station
license, the Commission shall determine that public interest,
convenience, or necessity would be served by the granting thereof,
it shall authorize the issuance, renewal, or modification thereof
in accordance with said finding. In the event the Commission, upon
examination of any such application does not reach such decision
with respect thereto, it shall notify the applicant thereof, shall
fix and give notice of a time and place for hearing thereon, and
shall afford such applicant an opportunity to be heard under such
rules and regulations as it may prescribe."
48 Stat. 1085.
Change to the present form was merely for more certainty and
clarification, to avoid the possibility of arbitrary Commission
action.
See S.Rep. No. 44, 82d Cong., 1st Sess. 8.
[
Footnote 15]
"No license shall be granted to a standard broadcast station
having any contract, arrangement, or understanding, express or
implied, with a network organization under which the station is
prevented or hindered from, or penalized for, broadcasting the
programs of any other network organization."
Id. at
319 U. S. 200;
47 CFR, 1941 Supp., § 3.101.
MR. JUSTICE HARLAN, concurring in part and dissenting in
part.
The Court has properly deemed it necessary to question
sua
sponte the jurisdiction of the Court of Appeals to entertain
this case, [
Footnote 2/1] but I am
unable to agree with its decision that such jurisdiction existed.
In my view, Storer was not a "party aggrieved by a final order" of
the Commission, within the meaning of 5 U.S.C. § 1034, and
hence was not entitled to invoke the jurisdiction of the Court of
Appeals. Accordingly, I would vacate the judgment below and remand
the case to the Court of Appeals with directions to dismiss the
petition for lack of jurisdiction.
Page 351 U. S. 207
1. These regulations do not, in my view, constitute an "order"
within the meaning of § 1034. They simply establish certain
standards to be followed by the Commission in the future exercise
of its licensing powers; they do not require any licensee to do or
to refrain from doing anything, attach no consequences to his
action or inaction, and determine no questions as to his legal
status. As such, they are quite unlike the Chain Broadcasting
regulations which were held to be a reviewable "order" in
Columbia Broadcasting System v. United States,
316 U. S. 407, in
a proceeding comparable to this one. Those regulations were held
reviewable not because every Commission action in the form of a
regulation was considered to be an "order," but for the specific
reason that they proscribed certain kinds of contracts between
licensees and the national networks and, by prescribing the
sanction of license cancellation for noncompliance, operated to
coerce action by the licensees and to determine the legal status of
the networks' contracts. Of their own force and with no further
administrative action's being taken, the regulations induced
licensees to cancel existing network contracts, and deterred them
from entering into new ones. That coercive effect of the
regulations on present conduct, the very characteristic which led
the Court to regard the Chain Broadcasting regulations as an
"order" despite their form, is totally lacking here. [
Footnote 2/2]
Page 351 U. S. 208
2. A second obstacle to review of the regulations here is that,
even if they be deemed an "order," Storer has not shown that it is
"aggrieved" by them.
In assessing the character of Storer's grievance, we must put
aside the Commission's order, made simultaneously with its
promulgation of the challenged regulations, which denied a pending
application by Storer for a sixth television license. That order
was reviewable only by a direct appeal within 30 days under 47
U.S.C. § 402(b), (c),
Federal Communications Commission v.
Columbia Broadcasting System, 311 U.
S. 132, and became final and conclusive upon Storer's
failure to appeal from it. Since that order cannot be reviewed, and
no relief from it may be granted in this proceeding, it is only of
the prospective effect of the regulations, not their past
application, that Storer may complain. And it is by that effect
that Storer must show it is "aggrieved."
In its petition for review, Storer alleged that it was aggrieved
by the regulations in that:
"(a) Storer is denied the right of a full and fair hearing to
determine whether its ownership of an interest in more than seven
(7) standard radio and five (5) television broadcast stations, in
light of and upon a showing of all material circumstances, will
thereby serve the public interest, convenience and necessity."
"The acquisition of Storer's voting stock by the public under
circumstances beyond the control of Storer, may and could be
violative of the Multiple Ownership rules, as amended, and result
in a forfeiture of licenses now held by Storer, with resultant loss
and injury to Storer and to all other Storer stockholders."
However these allegations are read, they assert no more than
that the Commission may, in the future, take action
Page 351 U. S. 209
pursuant to the regulations to deny or revoke a license. Of
course, if such action should ever be taken, Storer would then be
"aggrieved." But, by the same token, it would then have a complete
remedy through a direct appeal from such action under §
402(b). Until such time as the regulations are applied to it,
however, Storer will not have been "aggrieved," and hence will not
be entitled to review. Indeed, in this case, we do not even reach
often difficult problem whether an alleged injury is sufficient or
of such a nature as to entitle the complaining party to review;
here, we have that rare case in which no present injury of any kind
is even alleged.
It is said, however, that the regulations "now operate to
control the business affairs of Storer," despite the absence of any
such allegation by Storer. Since the Regulations do not have any
coercive effect, I take that to mean only that Storer, if it
exercises prudent business judgment, will take into account the
announced policy of the Commission in deciding whether or not to
apply for an additional license. No doubt that is true, but I fail
to see show Storer has been "aggrieved" by being told in advance
one of the factors that will govern the disposition of any future
license application on its part. If anything, Storer is now able to
make a more enlightened judgment as to the probabilities of success
in obtaining a further license.
3. So clear is it, in fact, that Storer has not been "aggrieved"
by the mere issuance of the regulations that the Court's grant of
review in this case must be premised not upon the effect of the
regulations themselves, but simply upon Storer's interest in
knowing whether or not a future application of them would be valid.
The result is that the statutory procedure for obtaining relief
from a present injury caused by an order has been converted into
something quite different -- namely, a procedure for obtaining a
declaratory judgment as to the validity of a
Page 351 U. S. 210
future application of new regulations. Not only is such a
proceeding not authorized by the statute, however, but Storer would
not have standing to invoke it even if it were.
That declaratory relief from future orders is not contemplated
by § 1034 seems clear. That section authorizes review only of
an "order" only if the order is "final," and only at the instance
of one aggrieved "by" the challenged order itself. The regulations
here are not an "order"; if they were, it would not be "final,"
since further administrative action must be taken before Storer
will be affected, and Storer's grievance, if any, will be caused
not "by" the regulations, but only by their future application.
Moreover, quite apart from these obstacles, the procedure provided
for by § 1034 is inappropriate for anticipatory equitable
relief. That section requires, for example, that petitions for
review be filed within 60 days after the order is issued. While
such a time limitation is clearly appropriate to a procedure for
relief from an injury already suffered, there seems no
justification for so limiting the availability of declaratory
relief from future action. Why should declaratory relief be denied
as the threat of the future injury becomes more imminent, or be
granted to those who have a sufficient interest to seek review
immediately while being denied to those who later acquire a similar
or even greater interest? Finally, no reason is apparent why
existing procedures for declaratory judgments are not adequate; to
construe § 1034 as an alternative declaratory judgment
procedure simply produces the incongruous result of authorizing
declaratory relief in the Courts of Appeals within 60 days after
the order is issued and in the District Courts thereafter.
In the second place, even if § 1034 is to be construed as
authorizing declaratory relief, I see no reason why the usual
requirements for invoking equity jurisdiction should not be as
applicable to such a proceeding as they are to
Page 351 U. S. 211
an ordinary declaratory judgment action or to a proceeding to
set aside a Commission order under the Urgent Deficiencies Act, the
predecessor to § 1034, under which the CBS case arose. In that
case, CBS' right to equitable relief in advance of the application
of the regulations was expressly based on the irreparable injury it
would suffer -- the wholesale cancellation of its contracts with
licensees -- before any further administrative action was taken,
and for which there was no other adequate remedy. Unless these
requirements for equitable relief are to be abandoned, there can be
no right to relief here, for Storer alleges no threatened injury of
any kind other than the possibility of future administrative action
for which there would be a complete remedy by appeal.
It is said, however -- again without support of any allegations
by Storer -- that Storer "cannot cogently plan its present or
future operations" unless it is advised whether or not the
regulations are valid. But plans for expansion of communications
facilities have always had to be made subject to the contingency
that the Commission might refuse to grant the necessary license for
any one of a number of reasons. Storer's position in this respect
is now no different than it was before the regulations were issued:
any plan to acquire a new station must simply take into account,
among the several contingencies, the likelihood that a denial of a
license under the regulations would be upheld on appeal. What this
argument comes down to, therefore, is that Storer needs to know
whether or not it can validly be denied a license under the
regulations so that, if it can, it need not make an application.
That is, the injury that Storer will have suffered if the decision
on the validity of the regulations is postponed until Storer in
fact applies for a license is the expense of making that very
application, the same injury that is suffered by all unsuccessful
license applicants. Until today, I should not have thought argument
was necessary to reject such
Page 351 U. S. 212
a basis for declaratory relief. Declaratory relief has been
denied persons whose only alternative was to risk both dismissal
from public employment and the imposition of criminal penalties,
United Public Workers v. Mitchell, 330 U. S.
75, yet it is granted here to relieve Storer of the mere
burden of making an application for a license. [
Footnote 2/3]
4. The holding of the Court today amounts to this: that
regulations which impose no duty and determine no rights may be
reviewed at the instance of a person who alleges no injury to
settle whether a future application of the regulations that may
never occur would be valid. The lack of support for this decision
is disclosed by the Court's primary reliance on
CBS,
[
Footnote 2/4] a case which, in my
view, not only fails to support the Court's conclusion but is
persuasive, if not controlling, authority for precisely the
opposite result. [
Footnote 2/5] In
my opinion, the implications of the
Page 351 U. S. 213
decision undermine much of the settled law on reviewability of
administrative action, and it is the more unfortunate because made
without the benefit of briefs or argument by the parties. I cannot
concur in that part the Court's opinion.
The Court having decided, however, that the Court of Appeals had
jurisdiction, I concur with the Court on the merits.
[
Footnote 2/1]
Although the question of reviewability was not raised below or
argued here, there can be no doubt of the power of the Court to
consider the issue
sua sponte, since it goes to the
jurisdiction of the Court of Appeals and of this Court.
Cf.
Federal Communications Commission v. National Broadcasting
Co., 319 U. S. 239,
319 U. S. 246;
Rochester Telephone Corp. v. United States, 307 U.
S. 125,
307 U. S. 128,
n. 3;
American Federation of Labor v. Labor Board,
308 U. S. 401,
308 U. S. 404.
The jurisdiction of the Courts of Appeals to review orders of the
Federal Communications Commission, other than those granting or
denying licenses, is granted by the Act of December 29, 1950, 64
Stat. 1129, 5 U.S.C. §§ 1031-1042. Section 1032, which
confers the jurisdiction, provides that "[s]uch jurisdiction shall
be invoked by the filing of a petition as provided in section
1034." Section 1034, in turn, provides that
"Any party aggrieved by a final order . . . may, within sixty
days after entry of such order, file in the court of appeals . . .
a petition to review such order."
In short, the court's jurisdiction may be invoked only upon the
petition of a "party aggrieved by a final order."
[
Footnote 2/2]
Insofar as the Multiple Ownership regulations provide for the
revocation of existing licenses upon the purchase by a licensee of
a stock interest in more than the maximum number of stations, they
could arguably be deemed an "order" forbidding licensees, under
pain of license revocation, to engage in stock transactions the
result of which would violate the numerical limitations. Storer is
not complaining, however, of any such deterrent effect of the
regulations, and does not allege that it desires either to buy or
to sell stock in any licensee. It objects only to the possibility
of a future loss of a license should persons beyond its control --
and, by hypothesis, not deterred by the regulations -- purchase its
stock.
See paragraph (b) of Storer's allegations, p.
351 U. S. 208,
infra.
[
Footnote 2/3]
The recent holding of this Court in
East Texas Motor Freight
Lines, Inc. v. Frozen Food Express, ante, p.
351 U. S. 49, does
not support the result reached here. In that case, the declaratory
interpretation of the Interstate Commerce Act -- sought by way of
review of the Commission's interpretative regulations in a
proceeding under the Urgent Deficiencies Act -- was considered
justified because of the possibility of criminal penalties being
imposed for violations of the Act and the risk of loss of
substantial investments in operations that might subsequently be
enjoined by the Commission. No such necessity for declaratory
relief is even alleged here; there is no threat of criminal
prosecutions, and, since a license is always a condition precedent
to acquisition of a new station, there is no danger of the loss of
investments to be made prior to the future administrative
action.
[
Footnote 2/4]
Of the other cases cited by the Court, only
Federal
Communications Commission v. American Broadcasting Co.,
347 U. S. 284,
involved a similar situation, and there, the jurisdictional problem
was neither raised by the parties nor noted by the Court.
[
Footnote 2/5]
Throughout the opinion in the
CBS case, the Court
emphasized the exceptional circumstances which justified immediate
review of the Chain Broadcasting regulations and distinguished them
from regulations of the sort here involved.
See, e.g., 316
U.S. at
316 U. S.
424-425:
"We need not stop to discuss here the great variety of
administrative rulings which, unlike this one, are not reviewable
-- either because they do not adjudicate rights or declare them
legislatively, or because there are adequate administrative
remedies which must be pursued before resorting to judicial
remedies, or because there is no occasion to resort to equitable
remedies. But we should not for that reason fail to discriminate
between them and this case, in which, because of its peculiar
circumstances, all the elements prerequisite to judicial review are
present. The ultimate test of reviewability is not to be found in
an overrefined technique, but in the need of the review to protect
from the irreparable injury threatened in the exceptional case by
administrative rulings which attach legal consequences to action
taken in advance of other hearings and adjudications that may
follow, the results of which the regulations purport to
control."
MR. JUSTICE FRANKFURTER, dissenting.
While I agree that the amendatory Rules promulgated by the
Federal Communications Commission relating to Multiple Ownership of
standard, FM and television stations constitute a reviewable
"order" within the meaning of 5 U.S.C. § 1034, my Brother
HARLAN's reasoning convinces me that the respondent was not on the
record before us a "party aggrieved" under that section. Therefore,
the court below should not have entertained the petition to review
the Commission's order.
Procedural and jurisdictional limitations on judicial action by
the federal courts are not playthings of lawyers, nor obstructions
on the road of justice. Whether formulated by the Constitution,
congressional enactments, or settled judicial precedents, they are
means designed to keep the courts within appropriate limits, and to
enforce
Page 351 U. S. 214
rights according to general standards, and not have them depend
on the impact of the individual case. To be sure, dealing as we are
with general standards, differences of views regarding their scope
and applicability are bound to arise from time to time. Who is a
"party aggrieved" or a "party in interest" turns on the context,
often confused and dubious, of a particular set of circumstances,
and therefore raises issues on which judges not unnaturally divide,
as they do on other unmathematical problems of the law.
See
Singer & Sons v. Union Pacific R. Co., 311 U.
S. 295.
To the laity, such matters may seem technicalities in a
derogatory sense of the term. But this is only one phase of an
attitude of mind that thinks ill of law which does not accord with
private wishes. When informed by a legal adviser that to carry out
his desires would encounter "technical legal difficulties," a
strenuous President of the United States impatiently observed that
"all law is technicality." But even professionally competent
officials are at times impatient with decisions that fail to
adjudicate substantive issues on which light is sought. It seems to
me important, therefore, not to minimize the function of
jurisdictional limitations upon adjudication by expressing views on
the merits. There are, of course, exceptional situations where it
is proper for a dissenter to go to the merits when a majority of
the Court removes from the case threshold objections of procedure
and jurisdiction.
See e.g., Ashwander v. Tennessee Valley
Authority, 297 U. S. 288,
297 U. S. 341.
This is not such a case.