National Broadcasting Co., Inc. et al. v. United States
Decided on May 10, 1943; 319 US 190


I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Regulation, Free speech

B. Legal Question Presented:

Did Congress authorize the Federal Communication Commission to exercise the power asserted by the Chain Broadcasting Regulations, and if it had, does the Constitution forbid the exercise of such authority?

II. CASE SUMMARY:

A. Background:

"On March 18, 1938, the Federal Communications Commission undertook a comprehensive investigation to determine whether special regulations applicable to radio stations engaged in chain broadcasting were required in the 'public interest, convenience, or necessity...' On May 2, 1941, the Commission issued its Report on Chain Broadcasting, setting forth its findings and conclusions upon the matters explored in the investigation, together with an order adopting the Regulations here assailed...

The Commission found that at the end of 1938 there were 660 commercial stations in the United States, and that 341 of these were affiliated with national networks... It pointed out that the stations affiliated with the national networks utilized more than 97% of the total night-time broadcasting power of all the stations in the country. NBC and CBS together controlled more than 85% of the total night-time wattage, and the broadcast business of the three national network companies amounted to almost half of the total business of all stations in the United States." 

On the ground that it had the congressional power to do so, the Commission established its Chain Broadcasting Regulations to correct eight network abuses. "The appellants attack the validity of these Regulations. They contend [notably] that the Commission went beyond the regulatory powers conferred upon it by the Communications Act of 1934." 

On remand from a previous hearing by the US Supreme Court, the District Court for the Southern District of New York reconsidered the case and "granted the Government's motions for summary judgment and dismissed the suits on the merits." On this appeal, the US Supreme Court affirmed the judgment of the Court of Appeals.

B. Counsel of Record
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for appellees United States and Federal Communications Commission. Mr. Louis G. Caldwell, of Washington, D.C., for appellee Mutual Broadcasting System, Inc. Mr. John T. Cahill, of New York City, for appellant National Broadcasting Co. Mr. E. Willoughby Middleton, of Rochester, N.Y., for appellant Stromberg-Carlson Telephone Mfg. Co. Mr. Charles E. Hughes, Jr., of New York City, for appellant Columbia Broadcasting System.
IV. THE SUPREME COURT'S DECISION:

"1) The criterion governing the exercise of the Commission's licensing power is the 'public interest, convenience, or necessity'. 307(a)(d), 309(a), 310, 312... The avowed aim of the Communications Act of 1934 was to secure the maximum benefits of radio to all the people of the United States. To that end Congress endowed the Communications Commission with comprehensive powers to promote and realize the vast potentialities of radio... [T]he Chain Broadcasting Regulations represent a particularization of the Commission's conception of the 'public interest' sought to be safeguarded by Congress in enacting the Communications Act of 1934... We conclude, therefore, that the Communications Act of 1934 authorized the Commission to promulgate regulations designed to correct the abuses disclosed by its investigation of chain broadcasting."

2) Addressing Appellants' claim that the Regulations abridged their right of free speech the Court held that "[U]nlike other modes of expression, radio inherently is not available to all... Congress did not authorize the Commission to choose among applicants upon the basis of their political, economic or social views, or upon any other capricious basis... The licensing system established by Congress in the Communications Act of 1934 was a proper exercise of its power over commerce. The standard it provided for the licensing of stations was the 'public interest, convenience, or necessity.' Denial of a station license on that ground, if valid under the Act, is not a denial of free speech.

The US Supreme Court affirmed the summary judgment granted to the Government by the District Court for the Southern District of New York.

Justice Vote: 5 Pro vs. 2 Con

  • Frankfurter, F. Pro (Wrote majority opinion)
  • Stone, H. Pro (Joined majority opinion)
  • Reed, S. Pro (Joined majority opinion)
  • Douglas, W. Pro (Joined majority opinion)
  • Jackson, R. Pro (Joined majority opinion)
  • Murphy, F. Con (Wrote dissenting opinion)
  • Roberts, O. Con (Joined dissenting opinion)
  • Rutledge, W. Took no part in the decision
  • Black, H. Took no part in the decision
V. A WIN OR LOSS FOR THE ACLU?

The ACLU, as amicus curiae, urged affirmance of the judgment of the District Court for the Southern District of New York; the Supreme Court affirmed in a 5-2 vote, giving the ACLU an apparent win .