ON CERTIFICATE FROM THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA.
Stone, Roberts, Reed, Frankfurter, Douglas, Murphy, Byrnes, Jackson; Black took no part in the consideration or decision of this case
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This case is here on certificate from the Court of Appeals for the District of Columbia. Judicial Code § 239, 28 U. S. C. § 346. The question certified relates to the power of the Court of Appeals to stay the enforcement of an order of the Federal Communications Commission pending determination of an appeal taken under § 402 (b) of the Communications Act of 1934, 48 Stat. 1064, 1093.
The circumstances which induced the Court to certify the question are these: On October 10, 1939, the Commission granted without hearing the application of WCOL, Inc., licensee of Station WCOL, Columbus, Ohio, for a construction permit to change its frequency from 1210 to 1200 kilocycles and to increase its power from 100 to 250 watts. The appellant, Scripps-Howard Radio, Inc., which is the licensee of Station WCPO, Cincinnati, Ohio, operating on a frequency of 1200 kilocycles with power of 250 watts, filed a petition for "hearing or rehearing" requesting the Commission to vacate its previous order and set the WCOL application for hearing. The Commission denied this petition on March 29, 1940, and an appeal followed. In its statement of "reasons for appeal," the appellant claimed that the Commission could not lawfully grant the WCOL application without hearing; that in granting the application the Commission departed from its rules and standards of good engineering practice; that the appellant was entitled to a hearing in order to show that the Commission's action did not serve the public interest since it would result in materially reducing the coverage of Station WCPO and thereby deprive a substantial number of listeners of "the only local regional non-network service" available to them; and that in granting the WCOL application without hearing, the Commission violated the Due Process Clause of the Fifth Amendment.
The appellant asked the Court of Appeals to stay the Commission's order pending the disposition of its appeal. Even though the Court "had consistently over a long period of years, and without objection on the part of the Commission, issued stay orders" in cases where such orders were found to be necessary, the Commission opposed the issuance of a stay order in this case on the ground that the Court was without power to grant a stay. The application was heard before the Court sitting with
three judges, which, with one judge dissenting, upheld the Commission's contention. A motion for rehearing before all six members of the Court was granted. The judges being equally divided on the question of the Court's power to grant a stay, the following question was certified to us:
"Where, pursuant to the provisions of Section 402 (b) of the Communications Act of 1934, an appeal has been taken, to the United States Court of Appeals, from an order of the Federal Communications Commission, does the court, in order to preserve the status quo pending appeal, have power to stay the execution of the Commission's order from which the appeal was taken, pending the determination of the appeal?"
The Commission suggests that the certificate should be dismissed because of the generality of the question. Lowden v. Northwestern Nat. Bank, 298 U.S. 160. Read in the light of the preliminary statement certifying the facts which presented the question, Hill v. Wampler, 298 U.S. 460, 464, the question is limited to the type of order made by the Commission in this case. It is therefore sufficiently specific.
The Communications Act of 1934 is a hybrid. By that Act Congress established a comprehensive system for the regulation of communication by wire and radio. To secure effective execution of its policy of making available "a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges," Congress created a new agency, the Federal Communications Commission, to which it entrusted authority previously exercised by several other agencies. Under the Radio Act of 1927, 44 Stat. 1162, the Federal Radio Commission had broad powers over the licensing and regulation of radio facilities. The Mann-Elkins Act of 1910, 36 Stat. 539, gave the Interstate Commerce Commission general regulatory authority over telephone and telegraph carriers. In addition, the Postmaster
General was empowered, under the Post Roads Act of 1866, 14 Stat. 221, to fix rates on government telegrams.*fn1 The Communications Act of 1934 was designed to centralize this scattered regulatory authority in one agency. See Message from the President to Congress, February 26, 1934, Sen. Doc. No. 144, 73d Cong., 2d Sess.; Sen. Rep. No. 781, 73d Cong., 2d Sess., p. 1; H. Rep. No. 1850, 73d Cong., 2d Sess., pp. 3-4.
The provisions for judicial review in the Act of 1934 reflect its mixed origins. Section 402 (a) makes the provisions of the Urgent Deficiencies Act of October 22, 1913, 38 Stat. 208, 219, pertaining to judicial review of orders of the Interstate Commerce Commission, applicable to "suits to enforce, enjoin, set aside, annul, or suspend any order of the Commission under this Act (except any order of the Commission granting or refusing an application for a construction permit for a radio station, or for a radio station license, or for renewal of an existing radio station license, or for modification of an existing radio station license)." 48 Stat. 1064, 1093. The Urgent Deficiencies Act, which is thus incorporated in § 402 (a) of the Communications Act of 1934, provides for review in a specially constituted district court, with direct appeal to this Court. That Act authorizes the District Court, in cases "where irreparable damage would otherwise ensue to the petitioner," to allow a temporary stay of the order under review, subject to specified safeguards. 38 Stat. 208, 220.
Section 402 (b) of the Communications Act of 1934 provides for review of the orders excepted from § 402 (a). It gives an appeal "from decisions of the Commission to the Court of Appeals of the District of Columbia in any of the following cases: (1) By any applicant for a construction permit for a radio station, or for a radio station license, or for renewal of an existing radio station license, or for modification of an existing radio station license, whose application is refused by the Commission. (2) By any other person aggrieved or whose interests are adversely affected by any decision of the Commission granting or refusing such application." 48 Stat. 1064, 1093. This section follows § 16 of the Radio Act of 1927, 44 Stat. 1162, as amended in 1930, 46 Stat. 844, the relevant portions of which are set forth in the margin.*fn2 See Sen. Rep. No. 781, 73d Cong., 2d Sess., p. 9; H. Report No. 1918, 73d Cong., 2d Sess., pp. 49-50; remarks of Senator Dill, in charge of the measure in the Senate, 78 Cong. Rec. 8825, and of Representative Rayburn, who occupied the same role in the House, 78 Cong. Rec. 10314.
Thus, in both the Radio Act of 1927 and the Communications Act of 1934, orders granting or denying applications for construction permits or station licenses and for renewal or modification of licenses were made reviewable ...