Document ID: A:\NBC.TXT NATIONAL BROADCASTING CO., INC. ET AL. v. UNITED STATES ET AL. ** Together with No. 555, Columbia Broadcasting System, Inc. v. United States et al., also on appeal from the District Court of the United States for the Southern District of New York, -- argued February 11, 1943. No. 554 SUPREME COURT OF THE UNITED STATES 319 U.S. 190; 63 S. Ct. 997; 1943 U.S. LEXIS 1119; 87 L. Ed. 1344; 1 Media L. Rep. 1965 February 10, 11, 1943, Argued May 10, 1943, Decided PRIOR HISTORY: APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRI APPEALS from judgments of the District Court dismissing suits to enjoin enforcement of DISPOSITION: 47 F.Supp. 940, affirmed. SYLLABUS: [***1] 1. The regulatory powers of the Federal Communications Commission are 2. Regulations adopted by the Federal Communications Commission, as "in the public inte d, are sustained as within the powers conferred upon the Commission by the Federal Communi (1) A regulation providing that no license shall be granted to a standard broadcast sta ting the programs of any other network organization. P. 198. (2) A regulation providing that no license shall be granted to a standard broadcast sta rk's programs not taken by the former station, or which prevents or hinders another statio a network organization pursuant to which the station is granted the first call in its pri (3) A regulation declaring that no license shall be granted to a standard broadcast sta two years. P. 201. (4) A regulation providing that no license shall be granted to a standard broadcast sta of the broadcast day, as described in the regulation, and that such options may not be exc her time, to other network organizations. P. 202. (5) A regulation providing that no license shall be granted to a standard [***3] broa ders the station from rejecting or refusing network programs which the station reasonably or refusing any program which, in its opinion, is contrary to the public interest, or fro (6) A regulation providing that no license shall be granted to a network organization, the stations covers substantially the service area of the other station, or for any standa y, or other related matters) that competition would be substantially restrained by such li (7) A regulation providing that no license shall be granted to a standard broadcast sta the sale of broadcast time for other than the network's programs. P. 208. 3. Section 311 of the Federal Communications Act, by authorizing the Commission to with uct of the applicant amounting to such violation may not be considered by the Commission i 4. The standard of "public interest" governing the exercise of the powers delegated to 5. The Commission by announcing that it will refuse station licenses to persons who eng t of free speech. P. 226. 6. In a suit to enjoin the enforcement of regulations promulgated by the Federal Commun COUNSEL: Mr. John T. Cahill, with whom Messrs. A. L. Ashby, Harold S. Glendening, and John rg-Carlson Telephone Manufacturing Co. (Mr. David M. Wood was on the Statement as to Juris Harold L. Smith, and John J. Burns were on the brief, for appellant in No. 555. Solicitor General Fahy, with whom Messrs. Richard S. Salant, Charles R. Denny, Harry M. ere on the brief, for the Mutual Broadcasting System, Inc., -- appellees. Briefs of amici curiae were filed by Mr. Isaac W. Digges on behalf of the Association o Homer S. Cummings, Morris L. Ernst and Benjamin S. Kirsh on behalf of the American Civil JUDGES: Stone, Roberts, Reed, Frankfurter, Douglas, Murphy, Jackson; Black and Rutledge to OPINIONBY: FRANKFURTER OPINION: [*193] [**999] MR. JUSTICE FRANKFURTER delivered the opinion of the Cour In view of our dependence upon regulated private enterprise in discharging the far-reac ropriate. These suits were brought on October 30, 1941, to enjoin the enforcement of the Chain Br United States, 316 U.S. 407, and National Broadcasting Co. v. United States, 316 U.S. 447 Deficiencies Act of October 22, 1913, 38 Stat. 219, 28 U. S. C. @ 47), and that the decree r summary judgment and dismissed the suits on the merits. 47 F.Supp. 940. The cases are n On March 18, 1938, the Commission undertook a comprehensive investigation to determine r necessity." The Commission's order directed that inquiry be made, inter alia, in the fol al rights and obligations of stations under their agreements with networks; the scope of n ations of stations with respect to network advertisers; [**1000] the nature of the pro ticular requirements of the areas served by the affiliated stations; the extent to which a ng the same area; the extent to which particular [***9] networks have exclusive covera ith networks; practices or agreements in restraint of trade, or in furtherance of monopoly ship, or other means. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Chain broadcasting is defined in @ 3 (p) of the Communications Act of 1934 as the "s ines, from their point of origination to each station in the network for simultaneous broa - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - On April 6, 1938, a committee of three Commissioners was designated to hold hearings an 1938, to May 19, 1939. Order No. 37, announcing the investigation and specifying the par etwork organization. Notices of the hearings were also sent to these parties. Station li afforded an opportunity to testify. 96 witnesses were heard by the committee, 45 of whom tnesses called by the national networks fills more than 6,000 pages, the equivalent of 46 The committee submitted a report to the Commission on June 12, 1940, stating its findi the Commission issued proposed regulations [***11] which the parties were requested to y adopted by the Commission. On January 2, 1941, each of the national networks filed a su On May 2, 1941, the Commission issued its Report on Chain Broadcasting, setting forth i f the Commission dissented [*196] from this action. The effective date of the Regulat postponed. On August 14, 1941, the Mutual Broadcasting Company petitioned the Commission f the national networks, and oral [***12] argument was had before the Commission on Se gulations. Simultaneously, the effective date of the Regulations was postponed until Nove ber 30, 1941, when the present suits were filed, the enforcement of the Regulations has be Such is the history of the Chain Broadcasting Regulations. We turn now to the Regulati its Report as "the expression of the general policy we will follow in exercising our lice ted to stations or applicants having specified relationships with networks. Each [***13 g so, however, we do not overlook the admonition of the Commission that the Regulations as are adopting, we have taken each practice singly, and have shown that even in isolation ea effect of their joint impact upon licensees necessitates the regulations even more urgent The Commission found that at the end of 1938 there were 660 commercial stations in the known in the industry as NBC, which operated two national networks, the "Red" and the "Blu dition, NBC operated 5 other stations, 4 of which had power of 50 kilowatts, under managem 7 of which were clear-channel stations operating with power of 50 kilowatts. 74 stations nd Mutual. These figures, the Commission noted, did not accurately reflect the relative p ut that the stations affiliated with the national networks utilized more than 97% of the t the broadcast business of the three national network companies [***15] amounted to al The Commission recognized that network broadcasting had played and was continuing to pl coverage to programs which otherwise would not be heard beyond the reception area of a si gnificance which would otherwise have coverage only in the locality of origin. Furthermor grams. . . . But the fact that the chain broadcasting method brings benefits and advantage d in all respects, or that they should not be altered. The Commission's duty under the Co able it, to see that practices which adversely affect the ability of licensees to operate The Commission found that eight network abuses were amenable to correction within the p Regulation 3.101 -- Exclusive affiliation of station. The Commission found that the ne ork. The effect of this provision was to hinder the growth of new networks, to deprive th ining which programs would best serve the needs of their community. The Commission observ Mutual. To take a case cited in the Report: [***17] In the fall of 1939 Mutual obtain cluding NBC and CBS affiliates in communities having no other stations. CBS and NBC immediately invoked the "exclusive affiliation" clauses of their agreements wi "Restraints having this effect," the Commission observed, "are to be condemned as contr at station licensees are denied freedom to choose the programs which they believe best sui ting from these exclusive arrangements far outweigh any advantages. A licensee station do capable, and which, by closing the door of opportunity in the network field, adversely aff license shall be granted to a standard broadcast station having any contract, arrangement, of any other network organization." Regulation 3.102 -- Territorial exclusivity. The Commission found another type of "exc provision, designed to protect the affiliate from the competition of other stations servi the "territorial exclusivity" clause of its affiliation agreement prevented the network fr prominent persons discussed topics of general interest. None of the Mutual stations in t d, however, on account of the "territorial exclusivity" provision in Mutual's agreements w The Commission concluded that "It is not in the public interest for the listening audie s as much against the public interest for a network affiliate to enter into a contractual eport, p. 59.) Recognizing that the "territorial exclusivity" clause was unobjectionable in so far [ f the licensee to broadcast available programs. Regulation 3.102, promulgated to remedy th implied, with a network organization which prevents or hinders another station serving sub a substantially different area from broadcasting any program of the network organization. tation is granted the first call in its primary service area upon the programs of the netw Regulation 3.103 -- Term of affiliation. The standard NBC and CBS affiliation contract ssion, relying upon @ 307 (d) of the Communications Act of 1934, under which no license to less of any changes that may occur in the economic, political, or social life of the Natio for 5 years. The licensee is so bound even [*202] though the policy and caliber of p llow his conception of the public interest until the end of the 5-year contract." (Report, e improved service it might otherwise derive from competition in the network field; and th ion 3.103: "No license shall be granted to a standard broadcast station having any contrac liation of the station with the network organization for a period longer than two years: n ." - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Station licenses issued by the Commission normally last two years. Section 3.34 of t - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Regulation 3.104 -- Option time. The Commission found that network affiliation contrac arry a commercial program during any of the hours specified in the agreement as "network o adcast day; for substantially all of the other NBC affiliates, [*203] it included 8 1/ or 4 hours on weekdays and 6 hours on Sundays. In the Commission's judgment these optional time provisions, in addition to imposing se 's time tended to prevent regular scheduling of local programs at desirable hours. The C definite hour, and the long-term advertising contract becomes a highly [***24] dubiou . . A station licensee must retain sufficient freedom of action to supply the program an s of the local community by broadcasting such outstanding local events as community concer restricted the freedom of station licensees and hampered their efforts to broadcast local tages from 'stability' of network operations under time options. We find that the optioni The Commission undertook to preserve the advantages of option time, as a device for "st the modification of the option-time provision in three respects: the minimum notice period ise of the option to the disadvantage of other networks. The text of the Regulation follo me than a total of three hours within each of four segments of the broadcast day, as herei a.m. Such options may not be exclusive as against other network organizations and may not Regulation 3.105 -- Right to reject programs. The [***26] Commission found that mo the station "may reject a network program the broadcasting of which would not be in the pu in the public interest than had he carried on the network program." Similarly, the CBS con tion may, on 3 weeks' prior notice thereof to Columbia, refuse to broadcast such program, While seeming in the abstract to be fair, these provisions, according to the Commission rticular network program would or would not be in the [***27] public interest. "It is rogram is in the public interest, nor can it ascertain whether or not parts of the program ing functions. In many instances, moreover, the network further delegates the actual prod easing extent, these agencies actually exercise the function of program production. Thus i ces, it is especially important that individual stations, if they are to operate in the pu "It is the station, not the network, [***28] which is licensed to serve the public r the control of his station directly to the network or indirectly to an advertising agenc . The licensee is obliged to reserve to himself the final decision as to what programs wi ce with the express requirements of the Communications Act, if he agrees to accept program The Commission undertook in Regulation 3.105 to formulate the obligations of licensees r implied, with a network organization which [***29] (a), with respect to programs offer isfactory or unsuitable; or which (b), with respect to network programs so offered or alre gram of outstanding local or national importance." Regulation 3.106 -- Network ownership of stations. The Commission found that NBC, in a was the licensee of 8 stations, 1 in each of these cities: New York, Chicago, Washington, able in the country, and were permanently inaccessible to competing networks. "Competitio mplete control over its policies. This 'bottling-up' of the best facilities has undoubted re its interest as the owner of certain stations may conflict with its interest as a netwo ions in something akin to an agency capacity. The danger is present that the network orga The Commission stated that if the question had arisen as an original matter, it might w nterests have been formed on the basis of the Commission's continued tolerance of the situ a single network organization is basically unsound and contrary to the public interest," a verage that competition would thereby be substantially restricted. Recognizing that these r application for new facilities or renewal of existing licenses, to call to our attention to a network organization, or to any person directly or indirectly controlled by or under station, or for any standard broadcast station in any locality where the existing standar be substantially restrained by such licensing." [**1006] Regulation 3.107 -- Dual network operation. This regulation provides that: ion shall not be applicable if such networks are not operated simultaneously, or if there ion announced the indefinite suspension of this regulation. There is no occasion here to Regulation 3.108 -- Control by networks of station rates. The Commission found that NB tation, if the station set a lower rate for non-network national [***33] advertising t uld cost the advertiser if he bought the time from NBC. In the words of NBC's vice-presid ans that we do not believe that our stations should go into competition with ourselves." The Commission concluded that "it is against the public interest for a station licensee est be served and listeners supplied with the best programs if stations bargain freely wit broadcast station having any contract, arrangement, or understanding, express or implied, ast time for other than the network's programs." The appellants attack the validity of these Regulations along many fronts. They contend deal with the matters comprehended by the Regulations, its action is nevertheless invalid Regulations are arbitrary and capricious; that if the Communications Act of 1934 were con idge the appellants' right of free speech in violation of the First Amendment. We are thu has, whether the Constitution forbids the exercise [***35] of such authority. Federal regulation of radio n3 begins with the Wireless Ship Act of June 24, 1910, 36 S communication, in charge of a skilled operator. The enforcement of this legislation was n the United States ratified the first international radio treaty, 37 Stat. 1565, that the , 1912, 37 Stat. 302. This statute forbade the operation of radio apparatus without a lic ve emissions, the transmission of distress signals, and the like. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 The history of federal regulation of radio communication is summarized in Herring an , Sen. Doc. No. 186, 76th Cong., 3d Sess., Part 3, dealing with the Federal Communications - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***36] The enforcement of the Radio Act of 1912 presented no serious problems prior to the Wor development of the art, however, and in 1921 the first standard broadcast stations [*2 any particular frequencies for the use of private broadcast stations; consequently, the S tations increased so rapidly, however, and the situation became so chaotic, that the Secre particular stations. The entire radio spectrum was divided into numerous bands, each allo ach other by 10 kilocycles) were assigned to the standard broadcast stations. But the pro y growing number of stations. Since there were more stations than available frequencies, same channel. The number of stations multiplied so rapidly, however, that by November, 19 already occupied by at least one station, and many by several. The new stations could be wer. The National Radio Conference which met in November, 1925, [*212] opposed both o The Secretary of Commerce was powerless to deal with the situation. It had been held t nt stations. Hoover v. Intercity Radio Co., 52 App. D. C. 339, 286 F. 1003. And on April use of a frequency not assigned to it was not a violation of the Radio Act of 1912. Unit no power, under the Radio Act of 1912, to regulate the power, frequency or hours of operat stations undertake self-regulation. But the plea of the Secretary went unheeded. From July, 1926, to February 23, [***39 regardless of the interference thereby caused to others. Existing stations changed to ot be heard. The situation became so intolerable that the President in his message of Decemb " Due to the decisions of the courts, the authority of the department [of Commerce] und urther stations are in course of construction; many stations have departed from the scheme , to destroy its great value. I most urgently recommend that this legislation should be s The plight into which radio fell prior to 1927 was attributable to certain basic facts enough to accommodate everybody. There is a fixed natural limitation upon the number of pment of the automobile. In enacting the Radio Act of 1927, the first comprehensive schem - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 See Morecroft, Principles of Radio Communication (3d ed. 1933) 355-402; Terman, Radi - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Radio Act of 1927 created the Federal Radio Commission, composed of five members, a hority entrusted to the Radio Commission, for the basic provisions of that Act are incorpo n v. Pottsville Broadcasting Co., 309 U.S. 134, 137, [*214] "In its essentials the Com to protect the national interest involved in the new and far-reaching science of broadcast ad supervised the different modes of communication led to the creation, in the Act of 1934 Section 1 of the Communications Act states its "purpose of regulating interstate and fo Nation-wide, and world-wide wire and radio communication service with adequate facilities ontrol of the United States over all the channels of interstate and foreign radio transmis , and no such license shall be construed to create any right, beyond the terms, conditions Section 303 provides: "Except as otherwise provided in this Act, the Commission from time to time, as public [**1009] (a) Classify radio stations; [*215] (b) Prescribe the nature of the service to be rendered by each class of licens . . . . (f) Make such regulations not inconsistent with law as it may deem necessary to prevent (g) Study new uses for radio, provide for experimental uses of frequencies, and general . . . . (i) Have authority to make special regulations applicable to radio stations engaged in . . . . (r) Make such rules and regulations and prescribe such restrictions and conditions, not The criterion governing the exercise of the Commission's licensing power is the "public es, and modifications and renewals thereof, when and insofar as there is demand for the sa air, efficient, and [***44] equitable distribution of radio service to each of the same. The Act itself establishes that the Commission's powers are not limited to the engineer prevent stations from interfering with each other. But the Act does not restrict the Com adio are not large enough to accommodate all who wish to use them. Methods must be devise The Commission was, however, not left at large in performing this duty. The touchstone of delegated authority permit." Federal Communications Comm'n v. Pottsville Broadcasting k Central Securities Co. v. United States, 287 U.S. 12, 24. The requirement is to be inter Co., 289 U.S. 266, 285. The "public interest" to be served under the Communications Act is thus the interest of o wasteful use without detriment to the public interest. "An important element of public i asts." Federal Communications Comm'n v. Sanders Radio Station, 309 U.S. 470, 475. The Comm rion of "public interest" were [***46] limited to such matters, how could the Commissi tion of federal regulation by radio, comparative considerations as to the services to be r roadcasting Co., 309 U.S. 134, 138 n. 2. The avowed aim of the Communications Act of 1934 was to secure the maximum benefits of otentialities of radio. Section 303 (g) provides that the Commission shall "generally enc able to radio stations engaged in chain broadcasting"; and subsection (r) empowers it to a of this Act." These provisions, individually and in the aggregate, preclude the notion that the Commi the Act any such restriction of the Commission's authority. Suppose, for example, that a re powerful stations in nearby cities might blanket out the signals of the local stations ith the power of its signal. But [*218] the community could be deprived of good radio ver the two stations, thus wasting a frequency otherwise available to the area. The langu not mean its broad language to carry the authority it expresses. In essence, the Chain Broadcasting Regulations represent a particularization of the Com erlying the Regulations is succinctly stated in its Report: "With the number of radio chan f them. If a licensee enters into a contract with a network organization which limits hi vestigation] has been that broadcasting service has been maintained at a level below that of radio in the public interest' if we were to grant licenses to persons who persist in t We would be asserting our personal views regarding the effective utilization of radio w mmission in promulgating the Chain Broadcasting Regulations. True enough, the [*219] A ield of regulation which was both new and dynamic. "Congress moved under the spur of a wi mmunications Comm'n v. Pottsville Broadcasting Co., 309 U.S. 134, 137. In the context of t the larger and more effective use of radio [***50] in the public interest," if need be Generalities unrelated to the living problems of radio communication of course cannot j ommission to the subject-matter entrusted to it, cannot strike down exercises of power by which the Communications Act of 1934 was brought into being by attempting an itemized cat ers of the Commission to specific details in regulating a field of enterprise the dominant ere the subject-matter of regulation [***51] was far less fluid and dynamic than radio to the problems to be solved. For the cramping construction of the Act pressed upon us, support cannot be found in it n broadcasting," intended to restrict the scope of the Commission's powers to the technica mittee amendment to the House bill (H. R. 9971, 69th Cong., 1st Sess.) This amendment orig "(C) The commission, from time to time, as public convenience, interest, or necessity r . . . . (j) When stations are connected by wire for chain broadcasting, determine the power ea the interest of equitable radio service to the listeners in the communities or areas affe The report of the Senate Committee on Interstate Commerce, which submitted this amendme e bill as thus amended was passed by the Senate, and then sent to conference. The bill th ct: the Commission was authorized "to make special regulations applicable to radio station isdiction conferred upon the Commission by the conference bill was substantially identical the District Court that in view of this legislative [***53] history, @ 303 (i) cannot broadcasting. There is no basis for assuming that the conference intended to preserve the ensive than those it supplanted. n5 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 In the course of the Senate debates on the conference report upon the bill that beca specifically sets out as one of the special powers of the commission the right to make sp o far as it can protect them, by giving the commission full power to refuse a license to a not receive a license but that its license may be revoked; and if after a corporation has the bill contains a provision that no license may be transferred from one owner to another state further that the only way by which monopolies in the radio business can secure contr o assume in advance that the commission proposed to be created will be servile to the desi - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***54] [*222] A totally different source of attack upon the Regulations is found in @ 311 of -- first, that this provision puts considerations relating to competition outside the Comm ope of its powers under @ 311 in issuing the Regulations. Both of these contentions are u y person judicially found guilty of having violated the anti-trust laws. The change in th 8825. The Commission was thus permitted to exercise its judgment as to whether violation implication from this [amendment in 1934] was that the Commission might infer from the fac d that if it did it would make him an unfit licensee." 47 F.Supp. 940, 944. That the Commission may refuse to grant a license to persons adjudged guilty in a court upon the "public interest, convenience, or necessity." A licensee charged with practices i roceeded against and convicted. By clarifying in @ 311 the scope of the Commission's auth lude all considerations relating to monopoly and unreasonable [***56] restraints upon ot operating in the "public interest," merely because its misconduct happened to be an unc Alternatively, it is urged that the Regulations constitute an ultra vires attempt by th e courts. This contention misconceives the basis of the Commission's action. The Commiss "The prohibitions of the Sherman Act apply to [**1013] broadcasting. This Commissio the Sherman Act was designed to achieve. . . . While many of the network practices raise s s. It is not our function [*224] to apply the antitrust laws as such. It is our duty, m making the fullest use of radio facilities. This is the standard of public interest, co ground that the network practices violate the antitrust laws. We are issuing these regula We conclude, therefore, that the Communications Act of 1934 authorized the Commission t mission's exercise of such authority was unlawful. The Regulations are assailed as "arbitrary and capricious." If this contention [***58 e selected the wrong forum for such a plea. What was said in Board of Trade v. United Sta Commission." Our duty is at an end when we find that the action of the Commission was bas or retarded by the Chain Broadcasting Regulations. The responsibility belongs to the Con [*225] It would be sheer dogmatism to say that the Commission made out no case for it nterest." The Commission knew that the wisdom of any action it took would have to be [** ystem of program distribution. . . . The problems in the network field are interdependent ture time after the regulations here adopted have been given a fair trial." (Report, p. 88 ind itself inflexibly to the licensing policies expressed in the Regulations. In each cas sity." If time and changing circumstances reveal that the "public interest" is not served Since there is no basis for any claim that the Commission [***60] failed to observe ntral Securities Corp. v. United States, 287 U.S. 12, 24-25, the claim is made that the st ehensively as [**1014] the [*226] words alone permit, the delegation of legislativ dard to guide determinations. The purpose of the Act, the requirements it imposes, and th ottsville Broadcasting Co., 309 U.S. 134, 137-38. Compare Panama Refining Co. v. Ryan, 293 476, 486-89; United States v. Lowden, 308 U.S. 225. We come, finally, [***61] to an appeal to the First Amendment. The Regulations, ev whose application for a license to operate a station is denied by the Commission is thereb xpression, radio inherently is not available to all. That is its unique characteristic, a But Congress did not authorize the Commission to choose among applicants upon the basis cants upon some such basis, the issue before us would be wholly different. The question h hich we hold is comprehended within the statutory criterion of [*227] "public interest radio without a license. The licensing system established by Congress in the Communicatio cessity." Denial of a station license on that ground, if valid under the Act, is not a den A procedural point calls for just a word. The District Court, by granting the Governme quiry was limited to review of the evidence before the Commission. Trial de novo of the m . 426. Affirmed. [***63] MR. JUSTICE BLACK and MR. JUSTICE RUTLEDGE took no part in the consideration or decisio DISSENTBY: MURPHY DISSENT: MR. JUSTICE MURPHY, dissenting: I do not question the objectives of the proposed regulations, and it is not my desire b tatutes of this kind should be construed so that the agency concerned may be able to cope sly bestow upon an agency power which the [*228] Congress has not granted. Since that In the present case we are dealing with a subject of extreme importance in the life of he selling of securities or the marketing of electrical power. In the dissemination of in radio, unlike the other methods of conveying information, must be regulated and rationed b tion, discussion and propaganda, the character and extent of control that should be exerci tead of a means of entertainment and enlightenment. It may even be an instrument of oppre he construction of the instant statute should be approached with more than ordinary restra er powers than the Congress intended to confer. The Communications Act of 1934 does not in terms give [***65] the Commission power ower to grant or withhold licenses to individual stations under @@ 307, 308, 309 and 310 t ese sections, taken singly or collectively, is there to be found by reasonable constructio - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The regulations as first proposed were not connected with denial of applications for implied, with a network organization," which contained any of the disapproved provisions. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***66] In providing for regulation of the radio, the Congress was under the necessity of vesti sentially an administrative one. Nevertheless, in specifying with some degree of particul granting and withholding of station licenses. Thus an applicant is required by @ 308 (b) lating to the ownership and location of the proposed station, the power and frequencies de ly distributed among the several States and communities to provide efficient service to e ersons found guilty of violating the federal anti-trust laws. @@ 311 and 313. Subject to rved thereby." @ 307 (a). Nothing is said, in any of these sections, about network contra The power to control network contracts and affiliations by means of the Commission's li egulate the business of the licensee. [**1016] The Commission is given no supervisory ch he can broadcast without interference to others, if he shows his competency, the adequa 68] The criterion of "public convenience, interest or necessity" is not an indefinite st Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266, 285. Nothing in the context of which the e served by renewal of an existing license or licenses, not upon an examination of written ce thereof which relate to the business methods of the network companies rather than [*231 mmission with the responsibility, through its licensing authority, of exercising far-reach re now organized and established, it is not likely that the Congress would have left it to ions expressly made relevant to license applications by @ 308 (b). The subject is one of d revolutionary changes in the business methods of the broadcasting networks -- methods wh ited purposes which they were intended to serve. It is quite possible, of course, that maximum utilization of the radio as an instrument possibly not conducive to a freer use of radio facilities, however [***70] essential t is within the present authority of the Commission to prescribe the remedy for such conditi g which the Congress has not [*232] clearly and definitely empowered the Commission to If this were a case in which a station license had been withheld from an individual app ic, I should be less inclined to make any objection. As an incident of its authority to d ission has reversed the order of things. Its real objective is to regulate the business p ulations and the enforcement program, the Commission would not only extend its authority o ld greatly enlarge its control over an institution that has now become a rival of the pres importance in the life of the nation, as a mere incident of its duty to pass on individual Again I do not question the need of regulation in this field, or the authority of the C th admirable lucidity. It is possible that the remedy indicated by the proposed regulatio dcasting as it is now conducted in this country. I do not believe, however, that the Comm An examination of the history of this legislation convinces me that the Congress did no ations. Section 303 is concerned primarily with technical matters, and the subjects of re r the subject of network contracts and affiliations, it would not have left it to dubious study new uses for radio, provide for experimental use of frequencies, and "generally [* the regulatory powers now being asserted. Manifestly that subdivision dealt with experim Nothing in its legislative history suggests that it had any broader purpose. It was clearly not the intention of the Congress by the enactment of @ 303 (i), authori over network contracts. This section is a verbatim reenactment of @ 4 (h) of the [*234 o time, as public convenience, interest, or necessity required, should: "When stations are connected by wire for chain broadcasting, [the Commission should] de gulations necessary in the interest of equitable radio service to the listeners in the com It was evidently the purpose of this provision to remedy a situation that was described ". . . During the past few months there has grown up a system of chain broadcasting, exten y varying meter lengths that the ordinary radio set that reaches out any distance is unabl has seemed to many people, at least many who have written to me, that when stations are c e dial. I do not know whether legislation ought to restrict that or whether it had better rogram than the one being broadcasted by chain broadcast." (Report of Hearings Before [* In other words, when the same program was simultaneously broadcast by chain stations, t to get any program except the chain program. It was essentially an interference problem. necessary for "equitable radio service to the listeners in the communities or areas affect It is reasonably construed as simply authorizing the Commission to remedy other technical he statement in the Senate Committee Report that this provision gave the Commission "compl y with respect to the specific problem which the Senate intended to meet, a problem of tec While the form of the amendment was simplified in the Conference Committee so as to aut nce Committee that "the jurisdiction conferred in this paragraph is substantially the same Cong., 2d Sess., p. 17). [***77] This is further borne out by a statement of Senator "What is happening to-day is that the National Broadcasting Co., which is a part of the gr one program out, and they are forcing the little stations off the board so that the people "There is no power to-day in the hands of the Department of Commerce to stop that pract Section 303 (r) is certainly no basis for inferring that the Commission is empowered to be such restrictions and conditions, not inconsistent with law, as may be necessary to car tly @ 303 (r) is of no consequence here. To the extent that existing network practices may have run counter to the anti-trust la ent agencies. In addition to the usual penalties prescribed by statute for their violatio attempting unlawfully to monopolize radio communication. Anyone under the control of such ot be granted by the Commission to the guilty party or to any person under his control. I rk contracts or to enforce competition between radio networks by withholding licenses from e an unlawful restraint of trade, when the applicant has not been finally adjudged guilty The conditions disclosed by the Commission's investigation, if they require correction, hich they were not addressed, but by invoking the aid of the Congress or the service of ag left to mere inference and guess-work the existence of authority to order board changes an tat. 74, the Federal Power Act, 49 Stat. 838, and other measures of similar character. In ements to the Commission. In @ 215 (c) of Title II, dealing with common carriers by wire "The Commission shall examine all contracts of common carriers subject to this Act which p ions as to whether additional legislation on this subject is desirable." Congress had no difficulty here in expressing the possible desirability of regulating a ty sofar as the Congress deemed it necessary in this legislation to safeguard radio broadcast contracts are deemed objectionable because of monopolistic or other features, and no remed enious reasoning based upon provisions that have no true relation to the specific problem. MR. JUSTICE ROBERTS agrees with these views.