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Gross v. United States

decided: June 13, 1973.


Smith, Hays and Timbers, Circuit Judges.

Author: Timbers

TIMBERS, Circuit Judge:

The sole issue properly before us on this petition to review a newly promulgated regulation of the Federal Communications Commission, 47 C.F.R. § 97.114(c) (1972), which prohibits use of amateur radio station facilities for transmission of business communications, is whether the regulation violates the freedom of speech provision of the First Amendment and the anti-censorship provision of Section 326 of the Federal Communications Act, 47 U.S.C. § 326 (1970). We hold that it does not.

We deny the petition to review.


Petitioners Herman and Reuben E. Gross, holders of amateur radio station licenses, seek review of an FCC Report and Order, 37 Fed.Reg. 21997, to the extent that it promulgated Section 97.114(c)*fn1 of a new FCC regulation, 47 C.F.R. § 97.114(c) (1972), effective December 1, 1972, which prohibits transmission of business messages for third parties in the Amateur Radio Service (ARS).*fn2 Promulgation of the new regulation followed standard rule making procedure prescribed by the Administrative Procedure Act, 5 U.S.C. § 553 (1970), including requirements as to notice and public participation.

The rule making proceedings that led to promulgation of Section 97.114(c) were initiated by a petition filed September 15, 1970 by the Amateur Radio Section, Industrial Electronics Division, Electronics Industries Association (the Association). The petition sought an amendment of former Section 97.39 of the FCC regulations, 47 C.F.R. § 97.39 (1972), which prohibited non-amateur organizations from holding an amateur station license and from using the facilities of amateur licensees.*fn3

Despite the unambiguous language of Section 97.39, amateur stations had been used for communications on behalf of certain non-amateur organizations such as the Red Cross and March of Dimes. Such use went largely unchallenged because there was general agreement that such organizations were meritorious. Recently, however, there had been a proliferation of non-amateur organizations which sought to use amateur stations for less meritorious purposes. In response to requests for interpretation, the FCC denied use of the ARS on behalf of such meritorious organizations as the Eye Bank and the United Fund. This led to the Association's rule making petition, referred to above, in which the FCC was requested to amend its restrictions on third party traffic by permitting messages in assistance of certain enumerated "non-profit public service" organizations and activities.

A basic purpose of the FCC's rule making proceeding was to determine the kinds of organizations to be made eligible and the types of communications to be permitted. The FCC set forth the amendment proposed by the Association and requested comments and suggestions from all interested parties.

Among the 75 comments received, was one from petitioner Reuben E. Gross. By letter dated July 21, 1971, he contended that the FCC "has no power to censor or regulate the contents of communications unless the messages are anti-social in nature, i. e. criminal, libelous, inflammatory, obscene, etc."; that "any regulation therefore, whether by way of total proscription or limitation of content of messages, may be ultra vires this Commission"; and that the "proceeding should be dismissed on the ground that the content of messages of an innocent or meritorious nature are not a proper subject of censorship or regulation by [the] Commission."

The FCC, in its Report and Order, expressly rejected this contention by petitioner Gross and others:

"It has been established, however, that eligibility restrictions and reasonable rules limiting communications to those consistent with the purpose of the radio service involved are within the scope of the Commission's authority. See, Lafayette Radio Electronics Corp. v. United States, 345 F.2d 278 (2nd Cir. 1965). Moreover, it is not only permissible but an affirmative duty of this Commission to classify radio stations and to regulate the nature of the radiocommunication service that is to be rendered by stations in that class. See § 303(a) and (b). Our rules adopted today regarding commercial third party traffic merely regulate generally the nature of the radio communication service which may be rendered by amateur stations." FCC Report and Order para. 6.

The upshot of the change reflected in Section 97.114(c)*fn4 was to effect a compromise between total prohibition of third party traffic and total allowance of third party traffic. The FCC recognized that total prohibition would be inconsistent with the expressed purpose of "recognition and enhancement of the value of the amateur service to the public as a voluntary noncommercial communication service." 47 C.F.R. § 97.1(a) (1972). On the other hand, total allowance would produce unmanageable congestion in the amateur frequency bands. The solution adopted was to prohibit only commercial messages which had long been considered inappropriate in the ARS, although not expressly forbidden. As a result of the rule change, public service ...

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