1. Section 402(b) of the Communications Act of 1934, as amended,
does not authorize an appeal to the Court of Appeals for the
District of Columbia from an order of the Federal Communications
Commission denying an application under § 310(b) for consent to the
transfer of a radio station license. P.
311 U. S.
134.
Page 311 U. S. 133
2. Such an order is not one refusing an "application for a radio
station license," within the meaning of § 402(a) or § 402(b)(1). P.
311 U. S.
136.
3. Implied adoption of a judicial construction upon the
reenactment of a statute is merely one factor in the total effort
to give fair meaning to statutory language. P.
311 U. S.
137.
71 App.D.C. 206; 108 F.2d 737, reversed.
Certiorari, 310 U.S. 617 to review the denial of motions in two
cases to dismiss appeals from an order of the Federal
Communications Commission refusing consent to the transfer of a
radio station license. The proposed transferor and the proposed
transferee had joined in an application to the Commission for such
consent, and took separate appeals from the order denying it.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
We brought these two cases here, 310 U.S. 617, because they
raise questions of importance touching the distribution of judicial
authority under the Communications Act of 1934. Act of June 19,
1934, 48 Stat. 1064, as amended by the Act of June 5, 1936, 49
Stat. 1475, and by the Act of May 20, 1937, 50 Stat. 189, 47 U.S.C.
§ 151
et seq.
Insofar as action of the Federal Communications Commission is
subject to judicial review, the Act bifurcates access to the lower
federal courts according to the nature of the subject matter before
the Commission. Barring the exceptions immediately to be noted, §
402(a) assimilates
Page 311 U. S. 134
"suits to enforce, enjoin, set aside, annul, or suspend any
order of the Commission under this Act" to the scheme of the Act of
October 22, 1913, 38 Stat. 219, pertaining to judicial review of
orders of the Interstate Commerce Commission. Therefore, as to the
general class of orders dealt with by § 402(a), jurisdiction rests
exclusively in the appropriate district court, specially
constituted, with direct appeal to this Court. Excepted from this
scheme of jurisdiction is
"any order of the Commission granting or refusing an application
for a construction permit for a radio station, or for a radio
station license, or for renewal of an existing radio station
license, or for modification of an existing radio station license,
or suspending a radio operator's license."
These five types of orders, thus placed beyond the jurisdiction
of the district courts, are then affirmatively dealt with by §
402(b). As to them, that provision gives an appeal "from decisions
of the Commission to the Court of Appeals for the District of
Columbia," with ultimate resort to this Court only upon writ of
certiorari.
Our problem, then, is to apply this scheme of jurisdiction to
the situation before us. Acting under § 310(b) of the
Communications Act, the Commission refused consent to an assignment
to the Columbia Broadcasting System of California of a radio
station license held by the Associated Broadcasters. Columbia and
Associated thereupon sought in the Court of Appeals for the
District review of the Commission's denial of consent. The
Commission moved to dismiss the appeals for want of jurisdiction.
The court below, with one justice dissenting, denied the motions
and entertained jurisdiction. 71 App.D.C. 206, 108 F.2d 737.
The crux of the controversy is whether an order of the
Commission, in the exercise of its authority under § 310(b),
denying consent to an assignment of a radio station license is an
order "refusing an application . . . for
Page 311 U. S. 135
a radio station license," within the meaning of §§ 402(a) and
(b). If it is, the court below was seized of jurisdiction. If it is
not, that court was without it. In the language quoted in the
margin, Congress has made the choice, and it is for us to ascertain
it.**
Primarily, our task is to read what Congress has written. As a
matter of common speech, the excepted types of orders which alone
can come before the Court of Appeals for the District of Columbia
do not include an order refusing the consent required by § 310(b).
Refusing "an application . . . for a radio station license" is
hardly an apt way to characterize refusal to assent to the transfer
of such a license from an existing holder. Nor is there anything to
indicate that the peculiar idiom of the industry or of
administrative practice has modified
Page 311 U. S. 136
the meaning that ordinary speech assigns to the language.
Instead of assimilating the requirements for transfers to
applications for new licenses or renewals, the Act as a whole
sharply differentiates between them. Different considerations of
policy may govern the granting or withholding of licenses from
those which pertain to assent to transfers. And Congress saw fit to
fashion different provisions for them.
Compare §§ 307,
308, 309, and 319 with § 310(b). There are also differences in the
formulated administrative practice for disposing of applications
for station licenses and requests for consents to transfer. Nor do
some similarities in treatment make irrelevant the differences.
A sensible reading of the jurisdictional provisions in the
context of the substantive provisions to which they relate gives no
warrant for denying significance to the classification made by
Congress between those orders for which review can only come before
the local district courts, and those five types of orders,
explicitly characterized, which alone can come before the Court of
Appeals for the District. And an order denying consent to an
application for a transfer is not one of those five, for it is not
an application for "a radio station license" in any fair intendment
of that category.
What thus appears clear from a reading of the Communications Act
itself is not modified by the collateral materials which have been
pressed upon us. That both sides invoke the same extrinsic aids,
one to fortify and the other to nullify the conclusion we have
reached, in itself, proves what dubious light they shed. What was
said in Committee Reports and some remarks by the proponent of the
measure in the Senate are sufficiently ambiguous, insofar as this
narrow issue is concerned, to invite mutually destructive
dialectic, but not strong enough either to strengthen or weaken the
force of what
Page 311 U. S. 137
Congress has enacted.
See Sen.Rep. No. 781, 73d Cong.,
2d Sess., pp. 9-10; House Rep. No.1918, 73d Cong., 2d Sess., pp.
49-50; 78 Cong.Rec. 8825-26. This leaves for consideration only the
bearing of an earlier decision by the Court of Appeals for the
District on this very question, arising under the predecessor of
the Communications Act, the Radio Act of 1927, 44 Stat. 1162, as
amended, 46 Stat. 844. In that Act, § 16 covered, for present
purposes, the provisions of § 402(b) of the Communications Act.
Inter alia, it provided for appeals to the court below by
"any applicant for a station license." Construing that provision,
the court below, in
Pote v. Federal Radio Commission, 62
App.D.C. 303, 67 F.2d 509, held that it was without jurisdiction
over an appeal by a transferee to whom consent to a transfer had
been denied. The present § 402 was adopted after this decision and
another decision by the same court within this field of
jurisdiction (
Goss v. Federal Radio Commission, 62
App.D.C. 301, 67 F.2d 507) had been presumably brought to the
attention of Congress. Hearings on S. 2910, 73d Cong., 2d Sess.,
pp. 44-45. On the one hand, it is insisted that, in the light of
these circumstances, the construction in the
Pote decision
was impliedly enacted by Congress, while respondents urge that
differences in the provisions regarding the Commission's power over
consent to transfers destroy the significance of the
Pote
case. But these changes in § 310(b), which stiffened the control of
the Commission over transfers, are wholly unrelated to the
technical question of jurisdiction with which we are now concerned.
We are not, however, willing to rest decision on any doctrine
concerning the implied enactment of a judicial construction upon
reenactment of a statute. The persuasion that lies behind that
doctrine is merely one factor in the total effort to give fair
meaning to language. And so, at the lowest, the
Pote case
certainly
Page 311 U. S. 138
does not detract from, but if anything reenforces, the
construction required by a clear-eyed reading of the statute.
Reversed.
* Together with No. 40,
Federal Communications Commission v.
Associated Broadcasters, Inc., also on writ of certiorari, 310
U.S. 617, to the Court of Appeals for the District of Columbia.
** Sec. 402:
"(a) The provisions of the Act of October 22, 1913 (38 Stat.
219), relating to the enforcing or setting aside of the orders of
the Interstate Commerce Commission, are hereby made applicable to
suits to enforce, enjoin, set aside, annul, or suspend any order of
the Commission under this Act (except any order of the Commission
granting or refusing an application for a construction permit for a
radio station, or for a radio station license, or for renewal of an
existing radio station license, or for modification of an existing
radio station license, or suspending a radio operator's license),
and such suits are hereby authorized to be brought as provided in
that Act. . . ."
"(b) An appeal may be taken, in the manner hereinafter provided,
from decisions of the Commission to the Court of Appeals for the
District of Columbia in any of the following cases:"
"(1) By any applicant for a construction permit for a radio
station, or for a radio station license, or for renewal of an
existing radio station license, or for modification of an existing
radio station license, whose application is refused by the
Commission."
"(2) By any other person aggrieved or whose interests are
adversely affected by any decision of the Commission granting or
refusing any such application."
"(3) By any radio operator whose license has been suspended by
the Commission."
If the assignee is covered § 402(b)(1) the assignor would be
within § 402(b)(2).