1. A lower court's interpretation of its own mandate does not
bind this Court. P.
309 U. S.
141.
2. The opinion discusses the differences of origin and function
between the judicial and the administrative processes, and the
relation of the one to the other in matters of substance and
procedure where administrative rulings are subject to judicial
review on errors of law. P.
309 U. S.
141.
3. Under the Federal Communications Act of 1934, the
Communications Commission, in passing upon an application for a
permit to construct a broadcasting station, must judge by the
standard of public convenience, interest, and necessity. Pp.
309 U. S. 137,
309 U. S.
145.
4. The Act empowers the Commission to adopt rules of procedure
applicable in ascertaining whether the granting of an application
for a permit to erect a broadcasting station would be in the public
interest. P.
309 U. S.
138.
5. Under this Act, upon review by the Court of Appeals for the
District of Columbia of a decision of the Commission denying an
application for such a permit, the court has authority to correct
errors of law and, upon remand, the Commission, is bound to accept
such correction. P.
309 U. S.
145.
6. But where the Commission denied an application for such a
permit and, upon appeal to the Court of Appeals for the District of
Columbia, the ruling was reversed because of error of law and the
case sent back for further proceedings, the Commission was free to
reconsider the application, together with other applications filed
subsequently, to determine which, on a comparative basis, would
best serve the public interest, and the Court
Page 309 U. S. 135
of Appeals was without authority by its mandate and by writ of
mandamus to forbid this and to require a rehearing of the first
application on the record as originally made. P.
309 U. S.
145.
70 App.D.C. 157; 105 F.2d 36, reversed.
Certiorari, 308 U.S. 535, to review an order which granted a
writ of mandamus requiring the above-named Commission and its
members (a) to set aside its order denying an application of the
present respondent and assigning it for rehearing, with other
applications for the same broadcasting facilities, and (b) to hear
and reconsider the respondent's application on the basis of the
record as originally made up when its application was first decided
adversely by the Commission and brought before that court on
appeal.
See 98 F.2d 288.
Page 309 U. S. 136
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
The court below issued a writ of mandamus against the Federal
Communications Commission, and, because important issues of
administrative law are involved, we brought the case here. 308 U.S.
535. We are called upon to ascertain and enforce the spheres of
authority which Congress has given to the Commission and the
courts, respectively, through its scheme for the regulation
Page 309 U. S. 137
of radio broadcasting in the Communications Act of 1934, c. 652,
48 Stat. 1064, as amended by the Act of May 20, 1937, c. 229, 50
Stat. 189, 47 U.S.C. § 151
et seq.
Adequate appreciation of the facts presently to be summarized
requires that they be set in their legislative framework. In its
essentials, the Communications Act of 1934 derives from the Federal
Radio Act of 1927, c. 169, 44 Stat. 1162, as amended, 46 Stat. 844.
By this Act, Congress, in order to protect the national interest
involved in the new and far-reaching science of broadcasting,
formulated a unified and comprehensive regulatory system for the
industry. [
Footnote 1] The
common factors in the administration of the various statutes by
which Congress had supervised the different modes of communication
led to the creation, in the Act of 1934, of the Communications
Commission. But the objectives of the legislation have remained
substantially unaltered since 1927.
Congress moved under the spur of a widespread fear that, in the
absence of governmental control, the public interest might be
subordinated to monopolistic domination in the broadcasting field.
To avoid this, Congress provided for a system of permits and
licenses. Licenses were not to be granted for longer than three
years. Communications Act of 1934, Title iii, § 307(d). No license
was to be "construed to create any right, beyond the terms,
conditions, and periods of the license."
Ibid., § 301. In
granting or withholding permits for the construction of stations,
and in granting, denying modifying or revoking licenses for the
operation of stations, "public
Page 309 U. S. 138
convenience, interest, or necessity" was the touchstone for the
exercise of the Commission's authority. While this criterion is as
concrete as the complicated factors for judgment in such a field of
delegated authority permit, it serves as a supple instrument for
the exercise of discretion by the expert body which Congress has
charged to carry out its legislative policy. Necessarily,
therefore, the subordinate questions of procedure in ascertaining
the public interest, when the Commission's licensing authority is
invoked -- the scope of the inquiry, whether applications should be
heard contemporaneously or successively, whether parties should be
allowed to intervene in one another's proceedings, and similar
questions -- were explicitly and by implication left to the
Commission's own devising, so long, of course, as it observes the
basic requirements designed for the protection of private as well
as public interest.
Ibid., Title I, § 4(j). Underlying the
whole law is recognition of the rapidly fluctuating factors
characteristic of the evolution of broadcasting and of the
corresponding requirement that the administrative process possess
sufficient flexibility to adjust itself to these factors. Thus, it
is highly significant that, although investment in broadcasting
stations may be large, a license may not be issued for more than
three years, and, in deciding whether to renew the license, just as
in deciding whether to issue it in the first place, the Commission
must judge by the standard of "public convenience, interest, or
necessity." The Communications Act is not designed primarily as a
new code for the adjustment of conflicting private rights through
adjudication. Rather, it expresses a desire on the part of Congress
to maintain, through appropriate administrative control, a grip on
the dynamic aspects of radio transmission. [
Footnote 2]
Page 309 U. S. 139
Against this background, the facts of the present case fall into
proper perspective. In May, 1936, The Pottsville Broadcasting
Company, respondent here, sought from the Commission a permit under
§ 319
Ibid., Title iii, for the construction of a
broadcasting station at Pottsville, Pennsylvania. The Commission
denied this application on two grounds: (1) that the respondent was
financially disqualified, and (2) that the applicant did not
sufficiently represent local interests in the community which the
proposed station was to serve. From this denial of its application,
respondent appealed to the court below. That tribunal withheld
judgment on the second ground of the Commission's decision, for it
did not deem this to have controlled the Commission's judgment.
But, finding the Commission's conclusion regarding the respondent's
lack of financial qualification to have been based on an erroneous
understanding of Pennsylvania law, the Court of Appeals reversed
the decision and ordered the "cause . . . remanded to the . . .
Communications Commission for reconsideration in accordance with
the views expressed."
Pottsville Broadcasting Co. v.
Page 309 U. S. 140
Federal Communications Commission, 69 App.D.C. 7, 98
F.2d 288.
Following this remand, respondent petitioned the Commission to
grant its original application. Instead of doing so, the Commission
set for argument respondent's application along with two rival
applications for the same facilities. The latter applications had
been filed subsequently to that of respondent, and hearings had
been held on them by the Commission in a consolidated proceeding,
but they were still undisposed of when the respondent's case
returned to the Commission. With three applications for the same
facilities thus before it, and the facts regarding each having
theretofore been explored by appropriate procedure, the Commission
directed that all three be set down for argument before it to
determine which, "on a comparative basis," "in the judgment of the
Commission, will best serve public interest." At this stage of the
proceedings, respondents sought and obtained from the Court of
Appeals the writ of mandamus now under review. That writ commanded
the Commission to set aside its order designating respondent's
application "for hearing on a comparative basis" with the other
two, and "to hear and reconsider the application" of The Pottsville
Broadcasting Company "on the basis of the record as originally made
and in accordance with the opinions" of the Court of Appeals in the
original review (69 App.D.C. 7, 98 F.2d 288), and in the mandamus
proceedings.
Pottsville Broadcasting Co. v. Federal
Communications Commission, 70 App.D.C. 157, 105 F.2d 36.
The Court of Appeals invoked against the Commission the familiar
doctrine that a lower court is bound to respect the mandate of an
appellate tribunal, and cannot reconsider questions which the
mandate has laid at rest.
See In re Sanford Fork & Tool
Co., 160 U. S. 247,
160 U. S.
255-256. That proposition is indisputable, but it does
not tell us
Page 309 U. S. 141
what issues were laid at rest.
Compare Sprague v. Ticonic
Bank, 307 U. S. 161. Nor
is a court's interpretation of the scope of its own mandate
necessarily conclusive. To be sure the court that issues a mandate
is normally the best judge of its content, on the general theory
that the author of a document is ordinarily the authoritative
interpreter of its purposes. But it is not even true that a lower
court's interpretation of its mandate is controlling here.
Compare United States v. Morgan, 307 U.
S. 183. Therefore, we would not be foreclosed by the
interpretation which the Court of Appeals gave to its mandate, even
if it had been directed to a lower court.
A much deeper issue, however, is here involved. This was not a
mandate from court to court, but from a court to an administrative
agency. What is in issue is not the relationship of federal courts
inter se -- a relationship defined largely by the courts
themselves -- but the due observance by courts of the distribution
of authority made by Congress as between its power to regulate
commerce and the reviewing power which it has conferred upon the
courts under Article III of the Constitution. A review by a federal
court of the action of a lower court is only one phase of a single
unified process. But, to the extent that a federal court is
authorized to review an administrative act, there is superimposed
upon the enforcement of legislative policy through administrative
control a different process from that out of which the
administrative action under review ensued. The technical rules
derived from the interrelationship of judicial tribunals forming a
hierarchical system are taken out of their environment when
mechanically applied to determine the extent to which Congressional
power, exercised through a delegated agency, can be controlled
within the limited scope of "judicial power" conferred by Congress
under the Constitution.
Page 309 U. S. 142
Courts, like other organisms, represent an interplay of form and
function. The history of Anglo-American courts and the more or less
narrowly defined range of their staple business have determined the
basic characteristics of trial procedure, the rules of evidence,
and the general principles of appellate review. Modern
administrative tribunals are the outgrowth of conditions for
different from those. [
Footnote
3] To a large degree, they have been a response to the felt
need of governmental supervision over economic enterprise -- a
supervision which could effectively be exercised neither directly,
through self-executing legislation, nor by the judicial process.
That this movement was natural and its extension inevitable was a
quarter century ago the opinion of eminent spokesmen of the law.
[
Footnote 4] Perhaps the most
striking characteristic of this movement has been the investiture
of administrative agencies with power far exceeding and different
from the conventional judicial modes for adjusting conflicting
claims -- modes whereby interested litigants define the scope of
the inquiry and determine the data on which the judicial judgment
is ultimately based. Administrative agencies have power themselves
to initiate inquiry,
Page 309 U. S. 143
or, when their authority is invoked, to control the range of
investigation in ascertaining what is to satisfy the requirements
of the public interest in relation to the needs of vast regions,
and sometimes the whole nation, in the enjoyment of facilities for
transportation, communication, and other essential public services.
[
Footnote 5] These differences
in origin and function preclude wholesale transplantation of the
rules of procedure, trial, and review which have evolved from the
history and experience of courts. Thus, this Court has recognized
that bodies like the Interstate Commerce Commission, into whose
mould Congress has cast more recent administrative agencies,
"should not be too narrowly constrained by technical rules as to
the admissibility of proof,"
Interstate Commerce Commission v.
Baird, 194 U. S. 25,
194 U. S. 44,
should be free to fashion their own rules of procedure and to
pursue methods of inquiry capable of permitting them to discharge
their multitudinous duties. [
Footnote 6]
Compare New England Divisions Case,
261 U. S. 184. To
be sure, the laws under which these agencies operate prescribe the
fundamentals of fair play. They require that interested
Page 309 U. S. 144
parties be afforded an opportunity for hearing, and that
judgment must express a reasoned conclusion. But to assimilate the
relation of these administrative bodies and the courts to the
relationship between lower and upper courts is to disregard the
origin and purposes of the movement for administrative regulation
and, at the same time, to disregard the traditional scope, however
far-reaching, of the judicial process. Unless these vital
differentiations between the functions of judicial and
administrative tribunals are observed, courts will stray outside
their province and read the laws of Congress through the distorting
lenses of inapplicable legal doctrine.
Under the Radio Act of 1927 as originally passed, the Court of
Appeals was authorized in reviewing action of the Radio Commission,
to "alter or revise the decision appealed from and enter such
judgment as to it may seem just." § 16 of the Radio Act of 1927, 44
Stat. 1169. Thereby the Court of Appeals was constituted "a
superior and revising agency in the same field" as that in which
the Radio Commission acted.
Federal Radio Comm'n v. General
Electric Co., 281 U. S. 464,
281 U. S. 467.
Since the power thus given was administrative, rather than
judicial, the appellate jurisdiction of this Court could not be
invoked.
Federal Radio Comm'n v. General Electric Co.,
supra. To lay the basis for review here, Congress amended § 16
so as to terminate the administrative oversight of the Court of
Appeals. C. 788, 46 Stat. 844. In "sharp contrast with the previous
grant of authority," the court was restricted to a purely judicial
review.
"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 province of the commission and
govern its action, are appropriate
Page 309 U. S. 145
questions for judicial decision."
Federal Radio Comm'n v. Nelson Bros. Co., 289 U.
S. 266,
289 U. S.
276.
On review, the court may thus correct errors of law, and, on
remand, the Commission is bound to act upon the correction.
Federal Power Comm'n v. Pacific Co., 307 U.
S. 156. But an administrative determination in which is
imbedded a legal question open to judicial review does not
impliedly foreclose the administrative agency, after its error has
been corrected, from enforcing the legislative policy committed to
its charge.
Cf. Ford Motor Co. v. Labor Board,
305 U. S. 364.
The Commission's responsibility at all times is to measure
applications by the standard of "public convenience, interest, or
necessity." The Commission originally found respondent's
application inconsistent with the public interest because of an
erroneous view regarding the law of Pennsylvania. The Court of
Appeals laid bare that error, and, in compelling obedience to its
correction, exhausted the only power which Congress gave it. At
this point, the Commission was again charged with the duty of
judging the application in the light of "public convenience,
interest, or necessity." The fact that, in its first disposition,
the Commission had committed a legal error did not create rights of
priority in the respondent, as against the later applicants, which
it would not have otherwise possessed. Only Congress could confer
such a priority. It has not done so. The Court of Appeals cannot
write the principle of priority into the statute as an indirect
result of its power to scrutinize legal errors in the first of an
allowable series of administrative actions. Such an implication
from the curtailed review allowed by the Communications Act is at
war with the basic policy underlying the statute. It would mean
that, for practical purposes, the contingencies of judicial review
and of litigation, rather than the public interest,
Page 309 U. S. 146
would be decisive factors in determining which of several
pending applications was to be granted.
It is, however, urged upon us that, if all matters of
administrative discretion remain open for determination on remand
after reversal, a succession of single determinations upon single
legal issues is possible, with resulting delay and hardship to the
applicant. It is always easy to conjure up extreme and even
oppressive possibilities in the exertion of authority. But courts
are not charged with general guardianship against all potential
mischief in the complicated tasks of government. The present case
makes timely the reminder that "legislatures are ultimate guardians
of the liberties and welfare of the people in quite as great a
degree as the courts."
Missouri, Kansas & Texas Ry. Co. v.
May, 194 U. S. 267,
194 U. S. 270.
Congress, which creates and sustains these agencies, must be
trusted to correct whatever defects experience may reveal.
Interference by the courts is not conducive to the development of
habits of responsibility in administrative agencies. Anglo-American
courts as we now know them are themselves in no small measure the
product of a historic process.
The judgment is reversed, with directions to dissolve the writ
of mandamus and to dismiss respondent's petition.
Reversed.
MR. JUSTICE McREYNOLDS concurs in the result.
[
Footnote 1]
For the legislative history of the Act of 1927,
see
H.Rep. No. 464, S.Rep. No. 772, 69th Cong., 1st Sess.; 67 Cong.Rec.
5473-5504, 5555-86; 5645-47; 12335-59; 12480, 12497-12508,
12614-18; 68 Cong.Rec. 2556-80, 2750-51, 2869-82, 3025-39, 3117-34,
3257-62, 3329-36, 3569-71, 4109-55. A summary of the operation of
previous regulatory laws may be found in Herring and Gross,
Telecommunications, pp. 239-245.
[
Footnote 2]
Since the beginning of regulation under the Act of 1927,
comparative considerations have governed the application of
standards of "public convenience, interest, or necessity" laid down
by the law.
". . . the commission desires to point out that the test --
'public interest, convenience, or necessity' -- becomes a matter of
a comparative, and not an absolute, standard when applied to
broadcasting stations. Since the number of channels is limited, and
the number of persons desiring to broadcast is far greater than can
be accommodated, the commission must determine from among the
applicants before it which of them will, if licensed, best serve
the public. In a measure, perhaps, all of them give more or less
service. Those who give the least, however, must be sacrificed for
those who give the most. The emphasis must be first and foremost on
the interest, the convenience, and the necessity of the listening
public, and not on the interest, convenience, or necessity of the
individual broadcaster, or the advertiser."
Second Annual Report, Federal Radio Commission, 1928, pp. 169,
170.
[
Footnote 3]
See Maitland, The Constitutional History of England,
pp. 415-18; Landis, The Administrative Process,
passim.
[
Footnote 4]
See, for instance, the address of Elihu Root as
President of the American Bar Association:
"There is one special field of law development which has
manifestly become inevitable. We are entering upon the creation of
a body of administrative law quite different in its machinery, its
remedies, and its necessary safeguards from the old methods of
regulation by specific statutes enforced by the courts. . . . There
will be no withdrawal from these experiments. . . . We shall go on;
we shall expand them, whether we approve theoretically or not,
because such agencies furnish protection to rights and obstacles to
wrong doing which under our new social and industrial conditions
cannot be practically accomplished by the old and simple procedure
of legislatures and courts as in the last generation."
41 A.B.A.Rep. 355, 368-69.
[
Footnote 5]
See United States v. Lowden, 308 U.
S. 225; Herring, Public Administration and the Public
Interest,
passim.
[
Footnote 6]
The Communications Commission's Rules of Practice, Rule 106.4,
provided that
"the Commission will, so far as practicable, endeavor to fix the
same date . . . for hearing on all applications which . . . present
conflicting claims . . . excepting, however, applications filed
after any such application has been designated for hearing."
Respondent contends, and the court below seemed to believe that
this rule bound the Commission to give respondent a noncomparative
consideration because its application had been set down for hearing
before the later and rival applications were filed. The Commission
interprets this rule simply as governing the order in which
applications shall be heard, and not touching upon the order in
which they shall be acted upon or the manner in which they shall be
considered. That interpretation is binding upon the courts.
American Tel. & Tel. Co. v. United States,
299 U. S. 232.