Federal Communications Commission, Appellant-Cross-Appellee v. Taft B. Schreiber and McA Inc., Appellees-Cross-Appellants

329 F.2d 517

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 4, 1964
• Docket: 17990_1
• Status: Published

Opinions

FOLEY, Jr., District Judge.

Appellant-Cross-Appellee will be referred to as the Commission and Appellees-Cross-Appellants jointly as Appellees and separately as MCA and Schreiber.

On February 26, 1959, by authority of 47 U.S.C. § 403, the Commission published in the Federal Register (FR 1605) its order that an investigatory proceeding be instituted

“ * * * to determine the policies and practices pursued by the networks and others in the acquisition, ownership, production, distribution, selection, sale and licensing of programs for television exhibition, and the reasons and necessity in the public interest for said policies and practices * * *."¹

In the order, the hearing examiner designated to conduct the investigatory proceedings was authorized to receive evidence and make a record thereof, to administer oaths, subpoena witnesses, to compel their attendance, and compel the production of documentary evidence.

The order closed with this paragraph:

“IT IS FURTHER ORDERED, That the said investigatory proceeding shall be a public proceeding except that the said presiding officer may order non-public sessions of the said investigatory proceeding where and to the extent that the public interest, the proper dispatch of the business of said proceeding, or the ends of justice will be served thereby.”

The record reflects that while public sessions were being held in Los Angeles, California, the examiner issued a subpoena duces tecum to Schreiber, MCA’s Vice President, commanding him to appear to testify and to produce documentary evidence described in the margin as Annex A and B.²

At the time and place appointed, Schreiber appeared with counsel and produced the list in Annex A, but refused to submit the material subpoenaed in Annex B, although then and there in his possession, unless the Commission would accept said material on a confidential basis, contending that if the material was revealed at a public hearing, trade secrets would be disclosed. Schreiber further refused to testify while the hearing was public and unless his counsel be given the right to object and to state grounds of objection on the record. The examiner refused to close the hearing and to accept the subpoenaed material as confidential and directed that Sehreiber’s counsel not participate in the proceedings other than by being present and advising Schreiber.

Appellees petitioned the full Commission for review. The examiner was affirmed on all points and Schreiber was ordered by the Commission to produce Annex B and to testify publicly regarding the same.³

When Schreiber maintained the same position, the Commission sought enforcement in the court below pursuant to 47 U.S.C. §§ 401(a), 401(b), 409(f), and 409(g).

The learned trial Judge filed an opinion January 22, 1962, F. C. C. v. Schrei-ber, D.C., 201 F.Supp. 421, and on March 2, 1962, filed his Findings of Fact, Conclusions of Law and Order.

The Conclusions of Law and Order are printed in the margin.⁴

APPEAL BY COMMISSION

We will first deal with the appeal by the Commission and will state the questions and errors specified in the language of the Commission set forth in its opening brief.

Questions Presented

1. Whether the District Court erred in finding and concluding that any further interrogation of appellees and any documents produced by them shall be taken in a private, non-public proceeding and held by the Commission on a confidential basis; that the Commission must move the District Court for an order allowing the documents and testimony to be made public; and that appellees shall have the right to oppose such a motion.

2. Whether the District Court erred in concluding that under Section 6(a) of the Administrative Procedure Act, 5 U.S.C. § 1005(a), appellees have the following rights:

(a) The right to have their counsel object to any questioning by the Commission, its counsel, or the presiding officer deemed improper by appellees’ counsel.

(b) The right to have appellees’ counsel present, on the record, concise grounds and reasons for any such objection.

Specification of Errors

1. The District Court erred in its Finding of Fact XI.

2. The District Court erred in its Conclusion of Law VII(b) and VII(e).

We will consider these questions and specifications of error in the order set forth above.

First Question and Specification of Error

In his decision (pp. 425-426 of 201 F.Supp.), the Trial Judge stated:

“However, I am of the opinion that in view of the well-grounded fears of the respondents that the testimony to be given might result in disclosure of trade-secrets, of which competitors might take advantage, it is ordered that the Examiner confine attendance at the hearing to the persons directly involved in the proceedings, their counsel, experts and witnesses and exclude the general public.”

“The respondents, MCA, Inc. and Taft B. Schreiber, are hereby ordered to appear before a Hearing Examiner duly appointed by the Commission at a time and place to be fixed by the Commission, to testify and to produce books, papers and documents in accordance with the above mentioned subpoena and orders issued by the Commission and duly served upon the respondents. Jurisdiction will be retained by the Court for any subsequent proceedings consequent upon the order. (Hunt Food & Industries, Inc. v. Federal Trade Commission, 9 Cir., 1960, 286 F.2d 803, 813).”

The Trial Court’s Finding of Fact No. XI reads:

“The record herein, including but not limited to, the testimony in the extensive hearings held by the Commission in its network programming inquiry, make it necessary that in protection of respondents’ rights and to preclude disclosure of trade secrets of which competitors might take advantage, all further interrogation of, and all further testimony given by, respondents shall be given in non-public sessions, and shall be retained and maintained in confidence by the Commission.”

The Commission does not question that the Trial Court had the authority to impose safeguards to prevent the possible disclosure of trade secrets, while ordering that appellees appear, testify and disclose the material sought by the Commission, but contends that the District Court abused its discretion and therefore erred.

In Chapman v. Maren Elwood College, 9th Cir., 1955, 225 F.2d 230, at Page 231, we stated:

“The key question in enforcement of the demand to produce records is whether it is reasonable or arbitrary. * * * The question of reasonableness is one for consideration and adjudication by the courts. The mere fact that a demand has been made by an administrative agency does not establish the demand as reasonable.”

In Goldberg v. Truck Drivers Local Union No. 299, 6th Cir., 1961, 293 F.2d 807, at Page 814, the Court states:

“In our opinion, it was not unreasonable to compel production of records which the law required to be kept and from which the reports filed with the Secretary were made. * * * The District Court, however, had the power to impose protective restraints on the conduct of the investigation to relieve against oppression or other illegal conduct. Hunt Foods & Industries, Inc. v. Federal Trade Commission, 9 Cir., 286 F.2d 803, 811, certiorari denied 365 U.S. 877, 81 S.Ct. 1027, 6 L.Ed.2d 190.”

In F. C. C. v. Cohn, S.D.N.Y.1957, 154 F.Supp. 899, at Page 908, the Court held:

“Of course the subpoena power must at all times be confined to ‘the rudimentary principles of justice,’ and the courts will plainly refuse to enforce an administrative subpoena which is not within the bounds of reasonableness. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; Chapman v. Maren Elwood College, 9 Cir., 225 F.2d 230; N. L. R. B. v. Anchor Rome Mills, 5 Cir., 197 F.2d 447, 449-450. There is a delicate balance between the necessity of obtaining information required in the public interest in furtherance of a lawful inquiry, and the onerous burdens which the furnishing of this information may place on these respondents. But in the case at bar the scales are tipped on the side of the public interest so as to outweigh the burden and inconvenience to the respondents.”

and at Page 911 of 154 F.Supp.,

“Subpoenas of an administrative agency, though validly issued, need not be enforced precisely according to their terms or without modification. Whenever it is made to appear that a subpoena is so broadly drawn as to be oppressive and unreasonable it is the duty of the court to prevent abuse of its process and to place such limitations upon the subpoena as is just and right under all the circumstances. N. L. R. B. v. Anchor Rome Mills, 5 Cir., supra, 197 F.2d at page 449; see Kilgore National Bank v. Federal Petroleum Board, 5 Cir., 209 F.2d 557, 560; cf. Chapman v. Maren Elwood College, 9 Cir., 225 F.2d 230, supra; Walling v. American Rolbal Corp., 2 Cir., 135 F.2d [1003] at page 1005, supra.' These matters are in the court’s discretion.”

In Delno v. Market St. Ry. Co., 9th Cir., 1942, 124 F.2d 965, at Page 967, this Court said:

“Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”

In a recent case, Weller v. Dickson, 9th Cir., 1963, 314 F.2d 598, beginning on Page 600, we said, in part:

“ * * * we must consider for a moment what is meant by the exercise and abuse of discretion. The judicial efforts to give these expressions some legal stability are legion. It was held in Hartford-Empire Co. v. Obear-Nester Co., 95 F.2d 414, 417 (8th Cir. 1938) that where an appellate court has power to review the exercise of a judicial discretion governed by situation and circumstances affecting exercise of discretion, inquiry is confined to the question whether the situation and circumstances clearly show an ‘abuse of discretion’, that is, arbitrary action not justified in view of the situation and circumstances.

“The Court in N. L. R. B. v. Gurn-sey-Muskingum Elect. Co-op. [Inc.], 285 F.2d 8, 11 (6th Cir. 1960) pointed out that there is no exact measure of what constitutes an abuse of discretion, and it is more than the substitution of judgment of one tribunal for that of another, discretion being governed by situation and circumstances affecting each individual case, and even where an appellate court has power to review exercise of such discretion, inquiry is confined to whether such situation and circumstances clearly show an abuse of discretion, that is, arbitrary action not justifiable in view of such situation and circumstances.

“Present day decisions have tended to erode the common law meaning of many words and phrases used in legal literature, and as a result the word ‘discretion’ as it is now generally used in the law, is but an anemic facsimile of a robust ancestor. Unless we are about to attend its demise, and make the word entirely meaningless, we should proceed with some caution.”

In Wigmore on Evidence, McNaughton Revision, Volume VIII, Section 2212, under the title “Trade Secrets and Customers’ Names”, we note the following language:

“Accordingly, there ought to be and there is, in some degree, a recognition of the privilege not to disclose that class of facts which, for lack of a better term, have come to be known as trade secrets.

“Nevertheless, the occasional necessity of recognizing it should not blind us to the danger of such a measure, or entice us into an unqualified sanction for such a demand. * * * In other words, a person claiming that he needs to keep these things secret at all should be expected to make the exigency particularly plain. * * * No privilege at all should there be conceded, although as much privacy as possible might be preserved by compelling disclosure no farther than to the judge himself, * *

We hold, therefore, that the Trial Judge did not abuse his discretion, but, on the contrary, established a fair and just procedure whereby a most important investigation could proceed without being unduly disrupted, obstructed or prolonged, and at the same time afford appellees protection against the improvident disclosure of possible valuable trade secrets.

Second Question and Specification of Error

Did the District Court err in its Conclusion of Law No. VII(b) and (c), which reads,

“Under § 6(a) of the Administrative Procedure Act, respondents were not entitled to cross-examine witnesses testifying in these hearings. Respondents were and are, however, entitled to the following:

“(b) The right to have respondents’ counsel object to any questioning by the Commission, its counsel or Hearing Examiner deemed improper by respondents’ counsel.

“(c) The right to have counsel for respondents present on the record concise grounds and reasons for any such objections.”

The parties agree and we so hold that the proceedings in this case are investigatory and not adjudicative in nature. They also agree that the right of counsel to object and argue objections on the record, if it exists in this case, is not a constitutional right, but a statutory right. We concur; see Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960).

Does the first sentence of Section 6(a) of the Administrative Procedure Act (5 U.S.C. § 1005(a)) apply to fact-finding investigations by the Commission, or is the sentence applicable only to the Commission’s adjudicative functions?

Professor Davis in his work, Administrative Law Treatise, Volume I, Section 8.10, Right to Counsel, writes:

“The Administrative Procedure Act provides in § 6(a): ‘Except as otherwise provided in this Act — * * in Any person compelled to appear person before any agency or representative thereof shall be accorded the right to be accompanied, represented and advised by counsel or, if permitted by the agency, by other qualified representative. Every party shall be accorded the right to appear in person or by or with counsel or other duly qualified representative in any agency proceeding.’

“The first sentence reverses the law declared in Bowles v. Baer, 142 F.2d 787, (7th Cir. 1944), holding that witnesses subpoenaed in an administrative investigation may be denied representation by counsel. If the person is ‘compelled to appear in person’, he is entitled to counsel.”

The first sentence of Section 6(a) has been held to assure the appearance of counsel with taxpayers and with other witnesses compelled to appear for examination before agents of the Internal Revenue Service conducting private investigations. Backer v. Commissioner of Internal Revenue, 5th Cir., 1960, 275 F.2d 141; In Re Neil, D.C.S.D.W.Va., 1962, 209 F.Supp. 76; United States v. Smith et al., D.C.Conn., 1949, 87 F.Supp. 293. The statutory authority for the appearance of counsel in these cases is the Administrative Procedure Act. In the Internal Revenue Code, Congress did not provide for the appearance of counsel in such eases.

The Trial Judge, in his opinion in this •case, at Page 423 of 201 F.Supp., pointed out that in Hannah, the Supreme Court considered the meaning of the right to counsel before regulatory agencies conducting fact-finding investigations. While this is true, in our reading of Hannah, the Civil Rights Act and not the Administrative Procedure Act is the source of authority for appearance of counsel.

The Supreme Court did not hold that the first sentence of Section 6(a) applies to investigations by regulatory agencies. As a matter of fact, the Commission argues that in Hannah, the Court, by implication, took the contrary position. Beginning at Page 445 of 363 U.S., at Page 1516 of 80 S.Ct., 4 L.Ed.2d 1307, we find this language:

“Although these agencies normally make determinations of a quasi-judicial nature, they also frequently conduct purely fact-finding investigations. When doing the former, they are governed by the Administrative Procedure Act, 60 Stat. 237, 5 USC §§ 1001-1011, and the parties to the adjudication are accorded the traditional safeguards of a trial. However, when these agencies are conducting nonadjudicative, fact-finding investigations, rights such as apprisal, confrontation, and cross-examination generally do not obtain.”

What the Supreme Court actually decided in Hannah was that the Due Process Clause of the Fifth Amendment did not require that, in fact-finding, non-adjudicative investigations, “the full panoply of judicial procedures be used * * * due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings * * * ” (p. 442 of 363 U.S., p. 1514 of 80 S.Ct., 4 L.Ed.2d 1307). Thus, in stating that when an agency acts quasi-judicially, it is governed by the Administrative Procedure Act and the parties are accorded the “traditional safeguards of a trial”, the Court is indicating that the Administrative Procedure Act assures due process under the Fifth Amendment where there is a trial-type, adjudicative proceeding.

Unlike the Civil Rights Act considered in Hannah, the Federal Communications Act does not provide for the appearance of counsel when the Commission conducts a fact-finding, nonadjudicative investigation. Therefore, unless the first sentence of Section 6(a) applies, counsel’s right to appear and participate in the instant hearing exists only by virtue of the Commission’s duly promulgated Rules and Regulations.

Since the Supreme Court has not decided the question of the applicability of the first sentence of Section 6(a) of the Administrative Procedure Act to non-'adjudicative, fact-finding investigations, neither should we, unless it is necessary. We need not and do not do so, because, assuming that the first sentence of Section 6(a) applies to the instant investigation, we hold that its_requirements have been met.⁵

Appellees contend that the word “represented” in the phrase “the right to be accompanied, represented, and advised by counsel” in the first sentence of Section 6(a) entitled counsel to object and to state grounds in support of objections on the record and the Trial Judge apparently agreed.

This is a question of first impression. We hold that the word “represented” must be read in light of the Due Process Clause of the Fifth Amendment and therefore varies in meaning depending upon the nature of the function being exercised. While counsel may, as a matter of right, object and argue objections on the record, just as he may, as a matter of right, cross-examine and call witnesses in a trial-type, adjudicatory proceeding, these rights do not exist in the fact-finding, nonadjudicative investigation unless specifically provided by statute or duly promulgated rules. The right to object and argue objections on the record Is not to be implied, here, from the use of the word “represented” in Section 6(a).

The Commission’s proposed Conclusion of Law No. VII reads as follows:

“VII

“The respondents were accorded the representation by counsel to which they were entitled by law in an investigatory proceeding such as that before the Commission.

“Hannah v. Larche, 363 US 420, 446 [80 S.Ct. 1502, 4 L.Ed.2d 1307] (1960)

“Administrative Procedure Act, § 6(a) (5 USC § 1005(a))”.

The Trial Court rejected the Commission’s proposed Paragraph VII in favor of Paragraph VII proposed by appellees. For the reasons given, the Trial Court erred in so doing. Under the Federal Communications Act, the Commission has the authority to limit counsel in this regard. Inherent in the Commission’s power of investigation (47 U.S.C. § 403) is the authority “to prevent the sterilization of investigations by burdening them with trial-like procedure.” (Hannah v. Larche, Page 448 of 363 U.S., Page 1518 of 80 S.Ct., 4 L.Ed.2d 1307).

The reasoning in Hannah supports our position. There, the Court quotes with approval a rule of the Federal Trade Commission that while “persons summoned to appear before investigative proceedings * * * may have the advice of counsel, ‘counsel may not, as a matter of right, otherwise participate in the investigation.’ ” (p. 446 of 363 U.S., p. 1517 of 80 S.Ct., 4 L.Ed.2d 1307.).

Cross Appeal by Appellees

Appellees contend that the District Court erred by failing to conclude that the Commission is without power to compel appellees to produce documents requested and to give testimony until the Commission complies with the requirements of Section 3 of the Administrative Procedure Act by promulgating and publishing proper rules governing the procedures for investigative proceedings.

The language of Section 3(a) of the Administrative Procedure Act relied upon by appellees is found in 5 U.S.C. § 1002, and in its pertinent parts, reads,

“(a) Every agency shall separately state and currently publish in the Federal Register * * * substantive rules adopted as authorized by law and statements of general policy or interpretations formulated and adopted by the agency for the guid-anee of the public, but not rules addressed to and served upon named persons in accordance with law. No person shall in any manner be required to resort to organization or procedure not so published.”

Appellees contend, generally, that the Commission is required to promulgate and publish rules and regulations governing investigations similar to the Commission’s rules of practice applicable to its adjudicative proceedings (47 C.F.R. §§ 1.11 — 1.56) and specifically that there must be promulgated and published procedures governing the role of counsel, witnesses and review by the Commission of determinations made by the Examiner.

The Commission cites Section 1.10 of Its Rules and Regulations (47 C.F.R. § 1.10), as follows:

“Proceedings before the Commission. The Commission may on its own motion or petition of any interested party hold such proceedings as it may deem necessary from time to time in connection with the investigation ox any matter which it has power to investigate under the law, or for the purpose of obtaining information necessary or helpful in the determination of its policies, the carrying out of its duties or the formulation or amendment of its rules and regulations. For such purposes it may subpena witnesses and require the production of evidence. Procedures to be followed by the Commission shall, unless specifically prescribed in this part, be such as in the opinion of the Commission will best serve the purpose of such proceeding.”

The Commission calls to our attention that it has published in the Federal Register some thirteen orders governing this proceeding.⁶

We find that the record supports the Commission’s position that appellees have had full and complete notice of all proceedings taken which concern them and that appellees have not been prejudiced in any manner by the Commission’s failure to promulgate and publish rules and regulations if required. Appellees apparently concede that this is so, but argue that they may be prejudiced in the future since the Commission’s investigation has not been completed.

The Trial Judge found these objections without merit. At Page 425 of 201 F.Supp., he said:

“The complaint that the Commission has not promulgated ‘ground rules’ as required by the Administrative Procedure Act (5 U.S.C.A. §§ 1002, 1003) is not well taken. It is doubtful if the provisions of that Act apply to any but adjudicating agencies. (Hannah v. Larche, supra, 363 U.S. pp. 452-453, 80 S.Ct. 1502, 4 L.Ed.2d 1307). Furthermore, there is evidence in the record showing that rules have been promulgated which are suited to the needs of the Commission. At any rate, unless and until an adjudicative stage is reached, the failure to make rules becomes an abstract question which need not be decided now. Failure to do so does not prejudice the respondents.”

We also note Paragraph X of the Conclusions of Law reads:

“X

“The alleged failure of the Commission to promulgate adequate ground rules to cover the proceeding did not prejudice respondents.

“Administrative Procedure Act, Section 10(e), [5 U.S.C. § 1009(e)].”

It is not necessary for us to decide whether Section 3(a) applies to nonad-judicative, fact-finding investigations, and it is unnecessary to define the term “substantive rule” as used in Section 3 (a) or to determine if the rules appellees seek constitute rules of substance or procedure,⁷ since failure to promulgate and publish rules has not prejudiced appel-lees.

While Section 10(e) of the Administrative Procedure Act directs the reviewing court to set aside agency action found to be taken without observance of procedure required by law, it also directs that the Court take due account of the rule of prejudicial error. See Madokoro v. Del Guercio, 9th Cir., 1947, 160 F.2d 164, 167, cert. denied 332 U.S. 764, 68 S.Ct. 68, 92 L.Ed. 349; Alesi v. Cornell, 9th Cir., 1957, 250 F.2d 877, 879; Florida Citrus Commission v. United States, D.C.N.D.Fla, 1956, 144 F.Supp. 517, 521, aff’d. 352 U.S. 1021, 77 S.Ct. 589, 1 L.Ed.2d 595.

We refuse to speculate about the future. In the event other conflicts arise during the investigation, judicial review is available. We find the cross appeal without merit.

We affirm the Trial Court, except that Subparagraphs (b) and (c) of Paragraph YII of the Conclusions of Law are stricken and the order below is modified to conform to this opinion.

1 . On November 10, 1959, the Commission entered a supplemental order as follows:

“NOW THEREFORE, IT IS ORDERED that the inquiry and investigatory proceeding instituted, pursuant to the Commission’s Order of February 26, 1959, * * * be and is hereby amended and enlarged to determine the policies, practices, mechanics and surveillance pursued and carried out by networks, station licensees and others in connection with the acquisition, ownership, production, distribution, selection, sale and licensing of programs for radio and television exhibition and the policies and practices pursued by networks, station licensees and others in connection with the selection, presentation and supervision of advertising material for broadcast to the public and the reasons and necessity in the public interest for said policies and practices * * 24 F.R. 9275.

2 . ANNEX

(A) A list by name or title of all television programs whether series programs, special programs, or otherwise, which appeared or were exhibited by or through the facilities of the television networks operated by NBC, CBS, or ABC since September 1, 1958, which programs were produced by MCA, Ine. or Revue Productions, Ine. and/or in which MCA, Ine. or Revue Productions, Inc. has or had a financial or proprietary interest or with regard to which MCA, Ine. or Revue Productions, Ine. is or was entitled to receive or has received a percentage of the profits or other compensation or fees in connection with the production or exhibition of such programs other than remuneration or compensation for the representation as agent of individual natural persons as talent.

(B) A list of all television programs whether series programs, special programs, or otherwise, which appeared on or were exhibited by or through the facilities of the television networks of NBC, CBS, or ABC, since September 1, 1958, in which MCA, Inc. or any predecessor affiliate or subsidiary of MCA, Inc. acted as packager (a) and/or, by agreement or otherwise, is entitled to receive or has received a percentage of the cost or selling price of said program or was or is entitled to receive or has received other compensation, remuneration or fees in connection with the packaging, licensing for broadcast or selling of said program, otherwise than as remuneration or compensation for the representation as agent of individual natural persons as talent.

(a) “The term ‘packaging’ is generally applied to the process of developing and assembling the talent and scripts for a particular program or programs. A producer has general charge of the physical processes by which the package is readied for television production.” (This case below, F. C. C. v. Schreiber, D.C., 201 F.Supp. 421, 424.)

3 . In its Order of January 27, 1961, affirming the Examiner, the Commission stated in part:

“It was the intention of the Commission in issuing both of the above Orders to institute a broad and comprehensive inquiry to establish a public record of the relevant policies, practices, facts and circumstances involved in the production, creation, selection, sale, licensing and exhibition of programs broadcast through the facilities of its licensees. Although the Commission empowered the Presiding Officer to accept evidence, information and data on a nonpublic basis, it was the Commission’s express intent that the proceedings be public and that the record be available to the public, station licensees, the broadcast industry, to the Commission and to Congress. We think it clear that all of such groups have a proper interest in the complex and generally unknown processes involved in the production, sale, distribution, et cetera, of broadcast programming and, more particularly, in the factual basis for any action — legislative, rule-making or licensing — -which the Commission may take as a result of its inquiry into these matters. Moreover, the policies and practices into which inquiry is and has been made herein, involve many-sided transactions between diverse and partially competitive (but also partially complementary) components and members of the same industry, such as networks, advertising agencies, program producers, program packagers, talent agencies, etc. If we are to obtain a full and rounded picture of such transactions, it is highly desirable that the facts, information, data and opinion supplied by one group or individual be known to other groups and individuals involved, so that they may verify, refute, explain, amplify or supplement the record from their own diverse points of view. In our view, a public investigatory hearing is the most effective means to this end. For these reasons, among others, we determined that public proceedings should be the rule herein, and that non-public procedures should be used only in those extraordinary instances where disclosure would irreparably damage private, competitive interests and where such interests could be found by the Presiding Officer to outweigh the paramount interest of the public and the Commission in full public disclosure. It was not the Commission’s intention that the non-public procedure be used, solely for their own convenience, by private persons who might be called as witnesses. Nor was it the Commission’s intention to accept any information on a basis which would prevent its disclosure if the public Interest so requires.”

4 . CONCLUSIONS OF LAW

I.

This Court has jurisdiction of the Cause. Communications Act of 1934, as amended, Sections 401(a), 401(b), 409(g) ; 47 U.S.C. §§ 401(a), 401(b), 409(g).

II.

The Commission is authorized to conduct the instant investigation.

Communications Act of 1934, as amended, § 403, 47 U.S.C. § 403; Federal Communications Commission v. Cohn, 154 F.Supp. 899, 906 (S.D.N.Y.1957).

III.

The Commission has authority to issue the subpoena and orders sought to be enforced in this proceeding.

Communications Act of 1934, as amended, §§ 409(e), (f), 47 U.S.C. §§ 409(e), (f); Stahlman v. Federal Communications Commission, 126 F.2d 124, 128 (D.C.Cir. 1941); Federal Communications Commission v. Cohn, 154 F.Supp. 899, 906 (S.D.N.Y. 1957);

See:

Hunt Foods & Industries, Inc. v. Federal Trade Commission, 286 F.2d 803, 808-809 (9th Cir., 1960) aff’g the opinion in Federal Trade Commission v. Hunt Foods & Industries, Inc., 178 F.Supp. 448 (S.D.Cal.1959); Federal Trade Commission v. National Biscuit Company, 18 F.Supp. 667, 671 (S.D. N.Y.1937).

IV.

Complementing its investigative power, the Commission is authorized by Sections 4(i), 303(f) and 303(g) of the Communications Act, (47 U.S.C. §§ 154(i), 303(f), and 303(g)) to perform any and all acts, make such rules and regulations, issue orders not inconsistent with the Communications Act, as may be necessary in the exeeution of its functions and generally to encourage the larger and more effective use of radio in the public interest. Section 303 (i) of the Communications Act (47 U.S.C. § 303 (i)) authorizes the Commission to make special regulations applicable to radio stations engaged in chain broadcasting as the public interest, convenience, or necessity require.

V.

The Commission is required to report to Congress information and data considered of value in the determination of questions connected with the regulation of broadcasting and to make specific recommendations to Congress as to additional legislation which the Commission deems necessary or desirable (Communications Act, Section 4(k), 47 U.S.C. § 154 (k)).

VI.

The Commission was authorized by Sections 5(d) (1) and 5(d) (2) of the Communications Act (47 U.S.C. § 155(d) (1)) to designate its Chief Hearing Examiner, Mr. James D. Cunningham, to preside over the taking of evidence in that phase of the investigatory proceeding pertinent to this cause.

VII.

Under § 6(a) of the Administrative Procedure Act, respondents were not entitled to cross-examine witnesses testifying in these hearings. Respondents were and are, however, entitled to the following:

(a) The right to have counsel accompany respondents when testifying;

(b) The right to have respondents’ counsel object to any questioning by the Commission, its counsel or Hearing Examiner deemed improper by respondents’ counsel ;

(c) The right to have counsel for respondents present on the record concise grounds and reasons for any such objection ;

(d) The right to have counsel for respondents, without interference by the Commission, its counsel or Hearing Examiner, initiate advice to Ms client with respect to the propriety or legality of any question asked of his client and to advise his client not to answer any such questions deemed improper.

VIII.

The information requested in “Annex B” of the Commission’s subpoena is reasonably relevant to the inquiry being conducted by the Commission.

Mines & Metals Corp. v. Securities and Exchange Commission, 200 F.2d 317, 321 (9th Cir. 1952) ; Detweiler Bros, v. Walling, 157 F.2d 841 (9th Cir. 1946) ; United States v. Woerth, 130 F.Supp. 930, 937-939 (N.D.Iowa 1956).

IX.

The Federal Communications Commission possesses a broad power of investigation and subpoena, and the fact that the respondents were not licensees of the Commission did not prevent it from seeking the required information from them.

Federal Communications Commission v. Cohn, 154 F.Supp. 899, 906 (S.D.N.Y. 1957); Stahlman v. Federal Communications Commission, 126 F.2d 124, 128 (D.C.Cir. 1941).

X.

The alleged failure of the Commission to promulgate adequate ground rules to cover the proceeding did not prejudice respondents.

Administrative Procedure Act, Section 10(e) [5 U.S.C. § 1009(e)].

XI.

The subpoena and order duly served upon respondents in this proceeding are in all respects valid, and respondents are in disobedience of the same.

XII.

This Court has the power to retain jurisdiction for any subsequent proceedings consequent upon the Order issued.

Hunt Food & Industries, Inc. v. Federal Trade Commission, 286 F.2d 803, 813 (9th Cir. 1960).

In accordance with the Findings of Fact and Conclusions of Law :

1. IT IS HEREBY ORDERED that respondents, MCA, Inc. and Taft B. Schreiber, are hereby ordered to appear before a Presiding Officer duly appointed by the Federal Communications Commission at a time and place to be fixed by the Commission, to testify and to produce books, papers and documents in accordance with the subpoena issued and served upon the respondents on October 17, 1960, and orders issued by the Commission and duly served upon the respondents.

2. IT IS FURTHER ORDERED that any further interrogation of respondents and any documents produced by respondents be taken and held by the Commission in private and confidential session, that the public be excluded therefrom, that all testimony adduced and documents produced be maintained in confidence by the Commission, that the Commission by motion duly made and served, may move the Court upon the conclusion of such interrogation and production for an order, should good cause exist therefor, permitting such testimony and documents to be made public, and that respondents shall retain the right to oppose such motion if and when so made.

3. IT IS FURTHER ORDERED that in the course of any further interrogation of respondents:

a) Counsel for respondents shall not be entitled to cross-examine witnesses;

b) Respondents shall have the right to have counsel accompany respondents when testifying, the right to have respondents’ counsel object to any questioning by the Commission, its counsel or the Hearing Examiner deemed improper by respondents’ counsel, the right to have counsel for respondents present on the record concise grounds and reasons for any such objection, and the right to have counsel for respondents, without interference by the Commission, its counsel or the Hearing Examiner, initiate advice to his client with respect to the propriety or legality of any question asked of his client and to advise his client not to answer any such question deemed improper.

c) If respondents decline to answer any questions upon advice of counsel or otherwise, the propriety of all such questions shall be ruled upon by this Court upon appropriate motion by any of the parties hereto, and respondents shall not be deemed to be in contempt either of this Court or of the Commission or suffer or incur any penalty until and unless the Court has ruled in favor of the propriety of any such questions and respondents thereafter refuse or decline to answer the same.

4. IT IS HEREBY ORDERED that the Order of this Court shall be, and it is hereby, stayed during and throughout the period within which an appeal may be taken from such Order, and, if an appeal be taken therefrom, such stay shall remain in effect during and throughout the period' of the pendency of the appeal.

5. The Court retains jurisdiction of this cause for any subsequent proceedings consequent upon this order.

5 . From the record, it is clear that Schreiber was permitted by the Commission to be accompanied and advised by counsel. While the record does show that the Examiner did on one occasion deny counsel the right to initiate advice to the subpoenaed witness, the Commission has not appealed from subparagraph (d) of paragraph VII of the Trial Court’s Conclusion of Law (Note 4 supra) that under Section 6(a), appellees were entitled to :

“(d) The right to have counsel for respondents, without interference by the Commission, its counsel or Hearing Examiner, initiate advice to his client with respect to the propriety or legality of any question asked of his client and to advise his client not to answer any such questions deemed improper.”

6 . References to the Federal Register are footnoted, Note 4, Page 425, of 201 F. Supp., as follows:

"4. See, § 1.10 of the Commission’s Rules and Regulations, 47 C.F.R., § 1.10 and thirteen special orders issued in the present proceeding, and published. See, 24 F.R. 1605, 2918, 3060, 5122, 5726, 9275, 9377; 25 F.R. 2116, 6998, 7552; 26 F.R. 992, 1194, 4462.”

7 . Ranger v. F. C. C, 1961, 111 U.S.App. D.C. 44, 294 F.2d 240, 244, reads, in part: “But the Administrative Procedure Act excepts from formal rule making requirements amendments which effect only procedural changes. The Commission insists that the amendment here involved was a procedural change, and we agree. Of course all procedural requirements may and do occasionally affect substantive rights, but this possibility does not make a procedural regulation a substantive one.”

See Hotch v. United States, 9th Cir, 1954, 212 F.2d 280, 14 Alaska 594, where this Court struck down a criminal conviction for failure to properly promulgate and publish a substantive rule required by Section 3(a) of the Administrative Procedure Act.