United States v. Storer Broadcasting Company/Concurrence Harlan

Mr. Justice HARLAN, concurring in part and dissenting in part.

The Court has properly deemed it necessary to question sua sponte the jurisdiction of the Court of Appeals to entertain this case, but I am unable to agree with its decision that such jurisdiction existed. In my view, Storer was not a 'party aggrieved by a final order' of the Commission, within the meaning of 5 U.S.C. § 1034, 5 U.S.C.A. § 1034, and hence was not entitled to invoke the jurisdiction of the Court of Appeals. Accordingly, I would vacate the judgment below and remand the case to the Court of Appeals with directions to dismiss the petition for lack of jurisdiction.

1. These regulations do not, in my view, constitute an 'order' within the meaning of § 1034. They simply establish certain standards to be followed by the Commission in the future exercise of its licensing powers; they do not require any licensee to do or to refrain from doing anything, attach no consequences to his action or inaction, and determine no questions as to his legal status. As such they are quite unlike the Chain Broadcasting regulations which were held to be a reviewable 'order' in Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563, in a proceeding comparable to this one. Those regulations were held reviewable, not because every Commission action in the form of a regulation was considered to be an 'order,' but for the specific reason that they proscribed certain kinds of contracts between licensees and the national networks and, by prescribing the sanction of license cancellation for noncompliance, operated to coerce action by the licensees and to determine the legal status of the networks' contracts. Of their own force and with no further administrative action being taken, the regulations induced licensees to cancel existing network contracts and deterred them from entering into new ones. That coercive effect of the regulations on present conduct, the very characteristic which led the Court to regard the Chain Broadcasting regulations as an 'order' despite their form, is totally lacking here.

2. A second obstacle to review of the regulations here is that, even if they be deemed an 'order,' Storer has not shown that it is 'aggrieved' by them.

In assessing the character of Storer's grievance, we must put aside the Commission's order, made simultaneously with its promulgation of the challenged regulations, which denied a pending application by Storer for a sixth television license. That order was reviewable only by a direct appeal within 30 days under 47 U.S.C. § 402(b), (c), 47 U.S.C.A. § 402(b), (c), Federal Communications Commission v. Columbia Broadcasting System, 311 U.S. 132, 61 S.Ct. 152, 85 L.Ed. 87, and became final and conclusive upon Storer's failure to appeal from it. Since that order cannot be reviewed, and no relief from it may be granted in this proceeding, it is only of the prospective effect of the regulations, not their past application, that Storer may complain. And it is by that effect that Storer must show it is 'aggrieved.'

In its petition for review, Storer alleged that it was aggrieved by the regulations in that:

'(a) Storer is denied the right of a full and fair hearing to     determine whether its ownership of an interest in more than      seven (7) standard radio and five (5) television broadcast      stations, in light of and upon a showing of all material      circumstances, will thereby serve the public interest,      convenience and necessity.

'(b) The acquisition of Storer's voting stock by the public     under circumstances beyond the control of Storer, may and      could be violative of the Multiple Ownership rules, as      amended, and result in a forfeiture of licenses now held by      Storer, with resultant loss and injury to Storer and to all      other Storer stockholders.'

However these allegations are read, they assert no more than that the Commission may in the future take action pursuant to the regulations to deny or revoke a license. Of course, if such action should ever be taken, Storer would then be 'aggrieved.' But by the same token it would then have a complete remedy through a direct appeal from such action under § 402(b). Until such time as the regulations are applied to it, however, Storer will not have been 'aggrieved' and hence will not be entitled to review. Indeed, in this case we do not even reach often difficult problem whether an alleged injury is sufficient or of such a nature as to entitle the complaining party to review; here we have that rare case in which no present injury of any kind is even alleged.

It is said, however, that the regulations 'now operate to control the business affairs of Storer,' despite the absence of any such allegation by Storer. Since the Regulations do not have any coercive effect, I take that to mean only that Storer, if it exercises prudent business judgment, will take into account the announced policy of the Commission in deciding whether or not to apply for an additional license. No doubtt hat is true, but I fail to see show Storer has been 'aggrieved' by being told in advance one of the factors that will govern the disposition of any future license application on its part. If anything, Storer is now able to make a more enlightened judgment as to the probabilities of success in obtaining a further license.

3. So clear is it, in fact, that Storer has not been 'aggrieved' by the mere issuance of the regulations, that the Court's grant of review in this case must be premised not upon the effect of the regulations themselves, but simply upon Storer's interest in knowing whether or not a future application of them would be valid. The result is that the statutory procedure for obtaining relief from a present injury caused by an order has been converted into something quite different-namely, a procedure for obtaining a declaratory judgment as to the validity of a future application of new regulations. Not only is such a proceeding not authorized by the statute, however, but Storer would not have standing to invoke it even if it were.

That declaratory relief from future orders is not contemplated by § 1034 seems clear. That section authorizes review only of an 'order,' only if the order is 'final,' and only at the instance of one aggrieved 'by' the challenged order itself. The regulations here are not an 'order'; if they were it would not be 'final' since further administrative action must be taken before Storer will be affected; and Storer's grievance, if any, will be caused not 'by' the regulations but only by their future application. Moreover, quite apart from these obstacles, the procedure provided for by § 1034 is inappropriate for anticipatory equitable relief. That section requires, for example, that petitions for review be filed within 60 days after the order is issued. While such a time limitation is clearly appropriate to a procedure for relief from an injury already suffered, there seems no justification for so limiting the availability of declaratory relief from future action. Why should declaratory relief be denied as the threat of the future injury becomes more imminent, or be granted to those who have a sufficient interest to seek review immediately while being denied to those who later acquire a similar or even greater interest? Finally, no reason is apparent why existing procedures for declaratory judgments are not adequate; to construe § 1034 as an alternative declaratory judgment procedure simply produces the incongruous result of authorizing declaratory relief in the Courts of Appeals within 60 days after the order is issued and in the District Courts thereafter.

In the second place, even if § 1034 is to be construed as authorizing declaratory relief, I see no reason why the usual requirements for invoking equity jurisdiction should not be as applicable to such a proceeding as they are to an ordinary declaratory judgment action or to a proceeding to set aside a Commission order under the Urgent Deficiencies Act, the predecessor to § 1034 under which the CBS case arose. In that case, CBS's right to equitable relief in advance of the application of the regulations was expressly based on the irreparable injury it would suffer-the wholesale concellation of its contracts with licensees-before any further administrative action was taken and for which there was no other adequate remedy. Unless these requirements for equitable relief are to be abandoned, there can be no right to relief here, for Storer alleges no threatened injury of any kind, other than the possibility of future administrative action for which there would be a complete remedy by appeal.

It is said, however-again without support of any allegations by Storer-that Storer 'cannot cogently plan its present or future operations' unless it is advised whether or not the regulations are valid. But plans for expansion of communications facilities have always had to be made subject to the contingency that the Commission might refuse to grant the necessary license for any one of a number of reasons. Storer's position in this respect is now no different than it was before the regulations were issued: any plan to acquire a new station must simply take into account, among the several contingencies, the likelihood that a denial of a license under the regulations would be upheld on appeal. What this argument comes down to, therefore, is that Storer needs to know whether or not it can validly be denied a license under the regulations so that, if it can, it need not make an application. That is, the injury that Storer will have suffered if the decision on the validity of the regulations is postponed until Storer in fact applies for a license is the expense of making that very application, the same injury that is suffered by all unsuccessful license applicants. Until today, I should not have thought argument was necessary to reject such a basis for declaratory relief. Declaratory relief has been denied persons whose only alternative was to risk both dismissal from public employment and the imposition of criminal penalties, United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754, yet it is granted here to relieve Storer of the mere burden of making an application for a license.

4. The holding of the Court today amounts to this: that regulations which impose no duty and determine no rights may be reviewed at the instance of a person who alleges no injury, to settle whether a future application of the regulations that may never occur would be valid. The lack of support for this decision is disclosed by the Court's primary reliance on CBS, a case which in my view not only fails to support the Court's conclusion but is persuasive, if not controlling, authority for precisely the opposite result. In my opinion, the implications of the decision undermine much of the settled law on reviewability of administrative action, and it is the more unfortunate because made without the benefit of briefs or argument by the parties. I cannot concur in that part the Court's opinion.

The Court having decided, however, that the Court of Appeals had jurisdiction, I concur with the Court on the merits.

Mr. Justice FRANKFURTER, dissenting.