Morton Borrow v. Federal Communications Commission

285 F.2d 666, 109 U.S. App. D.C. 224, 1960 U.S. App. LEXIS 4116, 1960 WL 102483

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 30, 1960
• Docket: 15473
• Status: Published

Opinions

PRETTYMAN, Chief Judge.

Appellant Borrow was an applicant for the renewal of a radio operator’s license, first-class. This license would entitle him to operate transmitter apparatus at radio or television stations, aboard vessels of the Merchant Marine, and at coast radio stations. He had held similar licenses, each limited to a term of years, since 1927. At the time of his latest application for renewal he was employed by the operator of two radio stations in Philadelphia. In connection with this application he was asked by the Communications Commission, as part of the requisite date, two questions which are the subject of the present controversy. They were:

“1. Are you now or have you ever been a member of the Communist Party?

“If the answer is yes, give dates of membership:

“2. Are you now or have you ever been a member of any organization or group which advocates or teaches the overthrow of the Government of the United States, or of any political subdivision thereof, by force or violence?

“If the answer is yes, list the organization or group and give the dates of membership:”

Borrow refused to answer either question, on the ground that the Commission had no legal authority to require answers to these inquiries as a prerequisite to renewal of his license. He requested a hearing in the following language:

“Under the circumstances I hereby request a hearing so that I may present in the appropriate form my reasons for refusal to answer the questionnaire.”

Such a hearing was held, and an initial decision by the Examiner and a final decision by the Commission were rendered. The proceedings did not involve the grant or refusal of the license. They involved only the questions (1) whether the Commission had the right to ask the questions and (2) whether, if so, Borrow’s refusal to answer precluded a determination that he was qualified to hold the license requested.

The Commission reaffirmed the position it had taken in a previous case¹ and, after a long discussion, concluded:

“24. In summary, the Commission has determined that, in ascertaining whether a grant of Mr. Borrow’s application would serve the public interest, it requires information as to whether or not he belongs to or has belonged to certain organizations which advocate or are reputed to advocate the overthrow of the government of the United States by forcé and violence. It requires such information as a prerequisite to reaching the statutorily necessary conclusion that a grant of the subject applications would serve the public convenience, interest or necessity, because of the nature of the employment available to licensees and the close relationship of such employment to the interests of national defense. * * * In the absence of the requested information, the Commission would deem it an abuse of its discretion to affirmatively conclude that a grant of Mr. Borrow’s application would serve the public interest.”

The Commission dismissed the application.

No procedural defects appear in the proceedings. The hearing requested was granted. The applicant was present and was represented by counsel. The full Commission later heard the matter, considered it, and decided it.

We examine the power of the Commission in respect to issuing operators’ licenses. The Communications Act,² in Section 303, provides:

“Except as otherwise provided in this Act, the Commission from time to time, as public convenience, interest, or necessity require, shall— x * * x * *

“(Í) Have authority to prescribe the qualifications of station operators, to classify them according to the duties to be performed, to fix the forms of such licenses, and to issue them to such citizens of the United States as the Commission finds qualified, * *

The statute requires the Commission to make available a nation-wide radio service, inter alia, “for the purpose of the-national defense.” ³

Thus it is clear upon the face of the statute that the Commission is empowered to prescribe the qualifications, of station operators and to issue licenses, only to those whom it finds qualified. It is not authorized to issue licenses except as the public interest, convenience or necessity requires — not “permits” but “requires”. Pursuant to this statutory authority the Commission has prescribed that no license will be issued until the applicant has successfully passed a technical examination and “is found qualified in respect to citizenship, character, and physical condition”.⁴ “Character” in respect to a radio operator obviously includes reliability in the situations in which such an operator must operate.

So the problem before us is whether the questions asked were pertinent to the requirements of the public interest, etc., and to proper standards of qualification for a radio operator. This is a practical, not merely an academic, problem. It seems to us it would be difficult to imagine a question more relevant or more material to the qualification of a radio operator under the statutory criteria than is the second of the two questions asked. Radio beams are the operational essence of quick modern communication and of the control of modern weappns. Not only the power to use these electronic devices but the power to interfere with waves being used by others should, it might properly seem to the Commission, be lodged in those whose loyalty to the United States is made to-appear. Surely no such power should knowingly be accorded to those who belong to organizations advocating or teaching the overthrow of this government by force or violence.⁵ At the very least the Commission is entitled to know whether those whom it licenses to control these devices belong to such an organization. Any program less than that simple necessity would be not only shortsighted but dangerous to the national security.

Before the Commission and before us the thrust of Borrow’s argument was his complaint concerning the first of the two questions asked, i. e., the question relating to membership in the Communist Party. But he refused to answer the second question also, i. e., the question relating to membership in an organization which teaches or advocates the overthrow of the Government of the United States by force and violence. The Commission commented:

“ * * * at least with respect to this question, even Borrow does not argue as to the propriety of the Commission’s inquiry and he presents no color of justification for his refusal to answer. On the sole basis of his refusal to answer this clearly pertinent question, and his failure even to allege good cause for his refusal, the Commission would be required to dismiss his application.”

Surely this second question could not be characterized as a mere inquiry into political affiliations. Such advocacy is a crime; indeed one of the highest order. No justification for the refusal of an applicant for a radio operator’s license to answer this question is shown to us, nor can we conceive of one.

In his concurring opinion in the Joint Anti-Fascist case,⁶ Mr. Justice Douglas wrote succinctly:

“The problem of security is real; and the Government need not be paralyzed in handling it. The security problem, however, relates only to those sensitive areas where secrets are or may be available, where critical policies are being formulated, or where sabotage can be committed. * * * The question is one of the fitness or qualifications of an individual for a particular position.”

The area involved in the case at bar is a sensitive area. Secrets of international communications are available; critical policies are formulated by the interchange of radio communications; opportunities for sabotage at critical times by false messages, by failing to shut down the station when ordered to do so, by “jamming” necessary broadcasts, are plentiful and critical. The question before the Commission, in direct, stark form, was the fitness of this applicant for a particular position, as a radio operator — not upon the merits of all relevant data but in the face of his refusal to answer questions required as part of his application.

The underlying premise of Borrow’s argument, discussing almost entirely the first question put to him, is that membership in the Communist Party is merely a matter of political affiliation. This court has repeatedly pointed out that the President, the Congress, and the Supreme Court have declared in emphatic terms that the Communist movement is a world-wide conspiracy for power, inimical to the peace of the world and to the safety of this country. In the present state of world affairs adherence to the Communist cause is not merely a political opinion. Membership in the Party vel non is a proper introductory query in this area; the answer may dispose of the subject, or it may necessitate explanation which, in turn, may or may not be acceptable.

Borrow says his First Amendment rights are being infringed. We cannot agree. His right to be a licensed radio operator is not unlimited, merely because of the First Amendment. Qualifications of character, reliability and judgment apply. The public interest must be served. He desires to operate a facility which in the public interest is necessarily licensed by the Government. He has affirmative standards to meet in order to secure a license, just as do doctors, lawyers, barbers, and lenders of money. An unqualified right to pursue any chosen occupation, merely by reason of the First Amendment, is a wholly untenable proposition. As the Court observed in American Communications Ass’n v. Douds,⁷ the Amendment “does not require that he be permitted to be the keeper of the arsenal.”

Borrow relies upon Graham v. Richmond,⁸ but that case did not deal with our present problem. There the appellant had been denied a hearing although the regulations provided for one. The decision of this court, premised upon Service v. Dulles ⁹ was that the regulations must be complied with and a hearing afforded. No such problem is now at bar, as Borrow was given the hearing he requested.

The conclusions of the Commission in this matter were exhaustive, careful, well-reasoned. Its decision is

Affirmed.

1 . Travis Lafferty, 23 F.C.C. 761, 13 P & F RR 641 (1957).

2 . 48 Stat. 1064 (1934), as amended, 47 U.S.C.A. § 151 et seq.

3 . See. 1, 47 U.S.C.A. § 151.

4 . 47 C.F.R. § 1.71(a). The Senate Committee on Interstate and Foreign Commerce, in reporting favorably on an amendment to the Communications Act not here relevant, added the following caveat: “Under the provisions of the Federal Communications Act of 1934, as amended, the Federal Communications Commission is required to find, with regard to every license issued by it, that the-public interest will be served thereby. In making this finding, the Commission! necessarily must weigh the character qualifications of persons seeking radio-operator licenses. The committee desires to emphasize that this bill, as amended, does not relieve the Commission of this affirmative responsibility.” S.Rep. No. 2338, 85th Cong., 2d Sess. (1958).

5 . The position of radio operators with respect to our national defense was described during World War II by Mr. Fly, then Chairman of the Communications Commission, in testimony before the House Committee on Appropriations, 77th Cong., 2d Sess., on the first Supplemental National Defense Appropriation Bill for 1943, page 17 (1942). He said they are the men “who are sitting at the nerve centers of our whole military system”. We think the description is equally apt today.

6 . Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 181, 71 S.Ct. 624, 95 L.Ed. 817 (1951).

7 . 339 U.S. 382, 412, 70 S.Ct. 674, 94 L.Ed. 925 (1950).

8 . 106 U.S.App.D.C. 288, 272 F.2d 517 (D.C.Cir.1959).

9 . 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957).