U.S. Supreme Court FEDERAL RADIO COM'N v. NELSON BROS. B. & M. CO., 289 U.S. 266 (1933)

289 U.S. 266

FEDERAL RADIO COMMISSION v. NELSON BROS. BOND & MORTGAGE CO. (Station WIBO).

SAME v. NORTH SHORE CHURCH (Station WPCC).

FEDERAL RADIO COMMISSION et al. (Station WJKS) v. NELSON BROS. BOND & MORTGAGE CO. (Station WIBO).

SAME v. NORTH SHORE CHURCH (Station WPCC).

Nos. 657, 658, 659, 660. Argued April 11, 1933. Decided May 8, 1933.[ Federal Radio Com'n v. Nelson Bros. B. & M.

[Page 289 U.S. 266, 283]

Lumber Co. v. Garrison, 237 U.S. 251, 260, 35 S.Ct. 551; Continental Insurance Co. v. United States, 259 U.S. 156, 171, 42 S.Ct. 540; Sproles v. Binford, 286 U.S. 374, 390, 391 S., 52 S.Ct. 581; Stephenson v. Binford, 287 U.S. 251, 276, 53 S.Ct. 181; City of New York v. Federal Radio Commission, 59 App.D.C. 129, 36 F.(2d) 115; Id., 281 U.S. 729, 50 S.Ct. 246; American Bond & Mortgage Co. v. United States (C.C.A.) 52 F.(2d) 318; Id., 285 U.S. 538, 52 S.Ct. 311; Trinity Methodist Church, South, v. Federal Radio Commission, 61 App.D.C. 311, 62 F.(2d) 850; Id., 288 U.S. 599, 53 S.Ct. 317, 77 L.Ed. --.

Respondents urge that the commission has misconstrued the act of Congress by apparently treating allocation between states within a zone as subject to the mandatory direction of the Congress relating to the zones themselves. Respondents say that as to zones Congress requires an 'equal' allocation, but as between states only 'a fair and equitable' allocation, and that the provision 'for granting or refusing licenses or renewals of licenses' relates to the former and not to the latter. It is urged that this construction is fortified by the proviso in section 9 as to temporary permits for zones. [Footnote 7] We think that this attempted distinction is without basis. The Congress was not seeking in either case 'an exact mathematical division.' [Footnote 8] It was recognized that this might be physically impossible. The equality sought was not a mere matter of geographical delimitation. The concern of the Congress was with the interests of the people-that they might have a reasonable equality of opportunity in radio transmission and reception, and this involved an equitable distribution not only as between zones but as between states as well. And to construe the authority conferred, in relation to the deletion of stations, as being applicable only to an apportionment between zones and

[Page 289 U.S. 266, 287]

that other facilities were available and should be granted in place of those which the applicant designated. If such a contention had been made, there would have been no difficulty in bringing before the commission other stations whose interests might be drawn in question. There is no showing that the respondents were prejudiced by the operation of the order in question.

Respondents complain that they were not heard in argument before the commission. They were heard before the examiner and the evidence they offered was considered by the commission. The exceptions filed by the applicant to the examiner's report were filed and served upon the respondents in August, 1931, and the decision of the commission was made in the following October. While the request of the applicant for oral argument was denied, it does not appear that any such request was made by respondents or that they sought any other hearing than that which was accorded.

We find no ground for denying effect to the commission's action. The judgment of the Court of Appeals is reversed, and the cause is remanded with direction to affirm the decision of the commission.

It is so ordered. Footnotes

Footnote 1 Section 5 of the Act of March 28, 1928, 45 Stat. 373 (47 USCA 89), is as follows:

Sec. 5. The second paragraph of section 9 of the Radio Act of 1927 is amended to read as follows:'It is hereby declared that the people of all the zones established by section 82 (2) of this chapter are entitled to equality of radio broadcasting service, both of transmission and of reception, and in order to provide said equality the licensing authority shall as nearly as possible make and maintain an equal allocation of broadcasting licenses, of bands of frequency or wave lengths, of periods of time for operation, and of station power, to each of said zones when and in so far as there are applications therefor; and shall make a fair and equitable allocation of licenses, wave lengths, time for operation, and station power to each of the States, the District of Columbia, the Territories and possessions of the United States within each zone, according to population. The licensing authority shall carry into effect the equality of broadcasting service hereinbefore directed, whenever necessary or proper, by granting or refusing licenses or renewals of licenses, by changing periods of time for operation, and by increasing or decreasing station power, when applications are made for licenses or renewals of licenses: Provided, That if and when there is a lack of applications from any zone for the proportionate share of licenses, wave lengths, time of operation, or station power to which such zone is entitled, the licensing authority may issue licenses for the balance of the proportion not applied for from any zone, to applicants from other zones for a temporary period of ninety days each, and shall specifically designate that said apportionment is only for said temporary period. Allocations shall be charged to the State, District, Territory, or possession wherein the studio of the station is located and not where the transmitter is located.'

Footnote 2 By this amendment, section 16(d) reads as follows:'At the earliest convenient time the court shall hear and determine the appeal upon the record before it, and shall have power, upon such record, to enter a judgment affirming or reversing the decision of the commission, and, in event the court shall render a decision and enter an order reversing the decision of the commission, it shall remand the case to the commission to carry out the judgment of the court: Provided, however, That the review by the court shall be limited to questions of law and that findings of fact by the commission, if supported by substantial evidence, shall be conclusive unless it shall clearly appear that the findings of the commission are arbitrary or capricious. The court's judgment shall be final, subject, however, to review by the Supreme Court of the United States upon writ of certiorari on petition therefor under section 347 of Title 28 (of the Judicial Code) by appellant, by the commission, or by any interested party intervening in the appeal.' 46 Stat. 844, 47 U.S.C. 96(d), 47 USCA 96(d).

In reporting this amendment, the Committee on the Merchant Marine and Fisheries of the House of Representatives stated: 'The purpose of the amendment is to clarify the procedure on appeal to the court from decisions of the Federal Radio Commission, to more clearly define the scope of the subject matter of such appeals, and to insure a review of the decision of the Court of Appeals of the District of Columbia by the Supreme Court.' H.R. Rep. No. 1665, 71st Cong., 2d Sess., p. 2.

Footnote 3 See note 1.

Footnote 4 Report, 1928 Federal Radio Commission, pp. 17, 48.

Footnote 5 pp. 18, 215-218.

Footnote 6 Report, 1930, Federal Radio Commission, pp. 4, 24.

Footnote 7 See note 1.

Footnote 8 Report of the Committee on the Merchant Marine and Fisheries, H.R. Rep. No. 800, 70th Cong.1st sess., p. 3.

Footnote 9 Report, 1931, Federal Radio Commission, p. 91.