NAB reports (Mar-Dec 1933)

“Summarizing the grounds of its decision, the Commission found: “ ‘1. The applicant station (WJKS) now renders an excellent public service in the Calumet region, and the granting of this application would enable that station to further extend and enlarge upon that service. “ ‘2. The deletion of stations WIBO and WPCC would not de¬ prive the persons within the service areas of those stations of any type of programs not now received from other stations. “ ‘3. Objectionable interference is now experienced within the service area of WJKS through the operation of other stations on the same and adjacent frequencies. “ ‘4. The granting of this application and deletion of stations WIBO and WPCC would not increase interference within the good service areas of any other stations. “ ‘5. The granting of this application and deletion of stations WIBO and WPCC would work a more equitable distribution of broadcasting facilities within the fourth zone, in that there would be an increase in the radio broadcasting facilities of Indiana which is now assigned less than its share of such facilities and a decrease in the radio broadcasting facilities of Illinois which is now assigned more than its share of such facilities. “‘6. Public interest, convenience, and/or necessity would be served by the granting of this application.’ ” The court of appeals was divided in opinion. The majority pointed out that the court had repeatedly held that “it would not be consistent with the legislative policy to equalize the comparative broadcasting facilities of the various States or zones by unnecessarily injuring stations already established which are rendering valuable service to their natural service areas”; and they were of opinion that the evidence showed that stations WIBO and WPCC had been “serving public interest, convenience, and necessity certainly to as great an extent as the applicant station” and that “the conclusively established and admitted facts” furnished no legal basis for the commission’s decision. The minority of the court took the view that the court was substituting its own conclusions for those of the commission, that the commission had acted within its authority, and that its findings were sustained by the evidence. First. Respondents challenge the jurisdiction of this court. They insist that the decision of the court of appeals is not a “judicial judgment”; that, for the purpose of the appeal to it, the Court of Appeals is merely a part of the machinery of the Radio Commission and that the decision of the court is an administrative decision. Respondents further insist that if this court examines the record, its decision “would not be a judgment, or permit of a judgment to be made in any lower court, but would permit only consummation of the administrative function of issuing or withholding a permit to operate the station.’’ Under Section 16 of the Radio Act of 1927, the Court of appeals, on appeal from decisions of the Radio Commission, was directed to “hear, review, and determine the appeal” upon the record made before the commission, and upon such additional evidence as the court might receive, and was empowered to “alter or revise the decision appealed from and enter such judgment as to it may seem just” (44 Stat. 1169). This provision made the court “a superior and revising agency” in the administrative field and consequently its decision was not a judicial judgment reviewable by this court. (Federal Radio Commission v. General Electric Co., 281 U. S. 464, 467). The province of the court of appeals was found to be substantially the same as that which it had, until recently, on ap¬ peals from administrative decisions of the Commissioner of Patents. While the Congress can confer upon the courts of the District of Columbia such administrative authority, this court cannot be in¬ vested with jurisdiction of that character whether for the purpose of review or otherwise. It cannot give decisions which are merely advisory, nor can it exercise functions which are essentially legisla¬ tive or administrative. (Id., pp. 468, 469 ; Keller v. Potomac Electric By this amendment, sec. 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 judg¬ ment 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 sup¬ ported 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 sec. 347 of title 28 of the Judicial Code by appellant, by the Commission, or by any in¬ terested party intervening in the appeal” (46 Stat. 844; 47 U.S.C. 96). Power Co., 261 U. S. 428, 442-444; Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693, 700.) In the light of the decision in the General Electric case, supra, the Congress, by the act of July 1, 1930, chapter 788, amended Section 16 of the Radio Act of 1927 so as to limit the review by the court of appeals (46 Stat. 844; 47 U.S.C. 96). 2 That review is now expressly limited to “questions of law” and it is provided “that findings of fact by the Commission, if supported by sub¬ stantial evidence, shall be conclusive unless it shall clearly appear that the findings of the Commission are arbitrary or capricious.” This limitation is in sharp contrast with the previous grant of authority. No longer is the court entitled to revise the Commis¬ sion's decision and to enter such judgment as the court may think just. The limitation manifestly demands judicial, as distinguished from administrative, review. Questions of law form the appropriate subject of judicial determinations. Dealing with activities admittedly within its regulatory power, the Congress established the Commis¬ sion as its instrumentality to provide continuous and expert super¬ vision and to exercise the administrative judgment essential in ap¬ plying legislative standards to a host of instances. These standards the Congress prescribed. The powers of the Commission were de¬ fined, and definition is limitation. Whether the Commission applies the legislative standards validly set up, whether it acts within the authority conferred or goes beyond it, whether its proceedings satisfy the pertinent demands of due process, whether, in short, there is compliance with the legal requirements which fix the prov¬ ince of the Commission and govern its action, are appropriate ques¬ tions for judicial decision. These are questions of law upon which the court is to pass. The provision that the Commission’s findings of fact, if supported by substantial evidence, shall be conclusive unless it clearly appears that the findings are arbitrary or capricious, cannot be regarded as an attempt to vest in the court an authority to revise the action of the Commission from an administrative standpoint and to make an administrative judgment. A finding without substantial evidence to support it — an arbitrary or capri¬ cious finding — does violence to the law. It is without the sanction of the authority conferred. And an inquiry into the facts before the Commission, in order to ascertain whether its findings are thus vitiated, belongs to the judicial province and does not trench upon, or involve the exercise of, administrative authority. Such an ex¬ amination is not concerned with the weight of evidence or with the wisdom or expediency of the administrative action. (Interstate Com¬ merce Commission v. Illinois Central R.R. Co., 21S U. S. 452, 470; Interstate Commerce Commission v. Union Pacific R.R. Co., 222 U. S. 541, 547, 548; New England Divisions Case, 261 U. S. 184, 203, 204; Keller v. Potomac Electric Power Co., supra; The Chicago Junction Case, 264 U. S. 258, 263, 265 ; Silberschein v. United States, 266 U. S. 221, 225; Ma-King Products Co. v. Blair, 271 U. S. 479, 483; Federal Trade Commission v. Klesner, 280 U. S. 19, 30; Tagg Bros. v. United States, 280 U. S. 420, 442; Federal Trade Commis¬ sion v. Raladam Co., 283 U. S. 643, 654; Crowell v. Benson, 285 U. S. 22, 49, 50.) If the questions of law thus presented were brought before the Court by suit to restrain the enforcement of an invalid administra¬ tive order there could be no question as to the judicial character of the proceeding. But that character is not altered by the mere fact that remedy is afforded by appeal. The controlling question is whether the function to be exercised by the Court is a judicial function; and if so, it may be exercised on an authorized appeal from the decision of an administrative body. We must not “be misled by a name but look to the substance and intent of the pro¬ ceeding.” (United States v. Ritchie, 17 How. 525, 534; Stephens v. Cherokee Nation, 174 U. S. 445, 479; Federal Trade Commis¬ sion v. Eastman Co., 274 U. S. 619, 623; Old Colony Trust Co. v. Commissioner, 279 U. S. 716, 722-724.) “It is not impor¬ tant,” we said in Old Colony Trust Co. v. Commissioner, supra, “whether such a proceeding was originally begun by an administra¬ tive or executive determination, if when it comes to the court, whether legislative or constitutional, it calls for the exercise of only the judicial power of the court upon which jurisdiction has been conferred by law.” Nor is it necessary that the proceeding to be judicial should be one entirely de novo. When on the appeal, as here provided, the parties come before the court of appeals to obtain its decision upon the legal question whether the Commission In reporting this amendment, the Committee on the Merchant Marine and Fisheries of the House of Representatives stated: “The purpose of the amend¬ ment 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 mat¬ ter 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. Rept. No. 1665, 71st Cong., 2d sess., p. 2), • Page 40 •