Morton Borrow v. Federal Communications Commission , 285 F.2d 666 ( 1960 )

WASHINGTON, Circuit Judge

(dissenting) .

I do not doubt that there are strong reasons of public policy for seeking to insure that radio operators will be loyal and trustworthy at all times, and particularly in the event of a national emergency. But the same is true of a large part of our population, given the times in which we live. Railroad engineers, airline pilots, electrical system operators, reservoir inspectors, gas pipeline controllers — the list of people who can play vital roles in the functioning or nonfunctioning of our system is well-nigh endless. If these people are required to be licensed by some federal, state or local agency— and many of them are — does it follow that the licensing authority can ask them about possible Communist connections, and deny them a license (and possibly a livelihood) for failure to answer? Or for giving an unacceptable answer? Perhaps we will come to that. But if we do, it should be a legislative and not an administrative decision: a decision made after careful consideration of the needs of the national security, and of the possible consequences on the availability, mobility and self respect of our people. Decisions of that sort should be made after fullest deliberation, by those who represent the electorate — rather than by appointed officials regulating a single segment of our economy.

The Supreme Court has made it quite plain that the Government cannot act to deprive a private individual of valuable rights and privileges on security grounds unless the deprivation has been clearly and validly authorized by law. Greene v. McElroy, 1959, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377; Kent v. Dulles, 1958, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed. 2d 1204. Cf. Konigsberg v. State Bar, 1957, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed. 2d 810. Here I can find no such authority.

The Communications Commission relies on the statutory provisions authorizing it in general tei’ms to prescribe the. qualifications for radio operators and to issue licenses to such citizens as it finds qualified, giving due regard to the public interest. There is no specific statutory-provision empowering the Commission to inquire on security grounds into the Communist or other affiliations of an applicant for a license. Nor is there any valid basis for implying that Congress intended that the Commission have such authority.

On the contrary, Congress has refused in the past to give the Commission the authority it now claims to possess. The Izae bill in 1940,¹ the Dirksen bill in 1941,² and the Bland bill in the same year³ — all would have given the Commission the power to refuse to license “subversives” as radio operators. None of these bills, with the exception of Bland, reached the floor. All, including Bland, were based on the assumption that the Commission lacked the requested authority. The Bland bill was rejected in the Senate. Congress did, however, pass a bill giving like authority to the Navy Department with respect to radio operators in the Merchant Marine. This statute has now lapsed by reason of the termination of hostilities.

One reason the Bland bill failed was that the Communications Commission itself objected to it, largely on the ground that the Commission was unprepared to make investigations into subversive activities, and did not wish to undertake them. Nothing appears which would suggest that the Commission is equipped today to pass upon such matters. Certainly there is nothing to suggest that Congress has by implication authorized it to do so. The statutory language on which the Commission now relies is the same language that has been on the books since 1927.⁴ If this language gave no authority in this field in the past, it gives none today.

In 1955 the Commission began consideration of a proposed rule which would prohibit the issuance of radio operators’ licenses to members of the Communist Party.⁵ Those proceedings are still pending — undetermined. The Commission has adopted no regulation barring Communists or subversives. It has set no standards and fixed no procedures. Its application forms contain no mention of the matter, much less any questions about it. But of late the Commission has sent supplemental letters to certain applicants, asking the questions here complained of. This procedure is not supported by any published rule.

Compared to the flimsy framework on which the Commission rests its case, the statutory and regulatory basis on which the Secretary of State rested his claim to deny passports on security grounds in Kent⁶ was truly monumental. Yet the Supreme Court struck down his claim, sturdily buttressed as it was. In the instant ease, where a man’s livelihood is involved, I think we have no alternative but to say that the Commission lacks the authority which it now asserts.

1 . H.R. 10446, 76th Cong., 3d Sess. (1940) ; also introduced as H.R. 3364, 77th Cong., 1st Sess. (1941).

2 . HR. 2662, 77th Cong., 1st Sess. at §§ 107 and 108 (1941).

3 . H.R. 5074, 77th Cong., 1st Sess. (1941).

4 . See Sections 5(C) and (D) of the Radio Act of 1927, 44 Stat. 1164.

5 . Dockets Nos. 11060 and 11061.

6 . Kent v. Dulles, 1958, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204.