Copley Press, Inc. v. Federal Communications Commission
Copley Press, Inc. v. Federal Communications Commission
Opinion of the Court
In this case we are asked by petitioners
Necessary to a full understanding of this case is a brief analysis of what has transpired in the several years prior to
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It is ordered, That pursuant to sections 201, 202, 205, and 403 of the Communications Act of 1934, as amended, an investigation is hereby instituted into the lawfulness of the existing rates for private line telepho-tograph services furnished to the press contained in Tariffs F.C.C. Nos. 140 and 208 of the American Telephone and Telegraph Company and Tariff F.C.C. No. 237 of the Western Union Telegraph Company;
It is further ordered, That the investigation shall be limited to the following issues:
1. The extent to which the rates for private line telegraph and private line telephotograph services prescribed in our decision in Docket Nos. 11645 and 11646 for users other than press users would, if applied to press users, im*987 pair the widespread dissemination of news;
2. Whether, in the light of the evidence adduced on the foregoing issue, the rates presently applicable to press users of the above-mentioned services are just and reasonable within the meaning of section 201(b) of the Communications Act of 1934, as amended, or whether they are unjustly discriminatory or unduly preferential or advantageous within the meaning of section 202(a) of such Act;
3. Whether in the light of our determinations on issues 1 and 2 the Commission should prescribe minimum or maximum or minimum and maximum rates to be applied to press users of the above-mentioned services and, if so, what rates should be prescribed:
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28 Fed.Reg. 5540, 5541 (1963) (Emphasis added.) It was pursuant to the above directions of the Commission and the approval of the Seventh Circuit
With the above-mentioned history as background we can more intelligently discuss the main issues involved in this appeal. The first problem that arises is determining who has the burden of ultimate persuasion in a proceeding of this nature. Must the press parties affirmatively show that the widespread dissemination of news will be impaired or is it only necessary, as they claim, for them to merely come forward with some meager evidence which thereby shifts the burden of persuasion to the carriers? The press parties also argue that, if the burden of ultimate persuasion is to be placed on their shoulders, they have nevertheless borne it successfully.
Petitioners rely on section 204 of the Act, 47 U.S.C. § 204 (1964), as authority for placing the burden of proof upon the carriers. This section provides in pertinent part:
At any hearing involving a charge increased, or sought to be increased, after the organization of the Commission, the burden of proof to show that the increased charge, or proposed increased charge, is just and reasonable shall be upon the carrier * * *.
47 U.S.C. § 204 (1964). Any reliance by petitioners on this section of the Act is warrantless. The proceeding now under review was by no means a section 204 hearing to determine whether an increased charge was just or reasonable. The reasonableness of the rates is not now our concern, but rather was the object of long and meticulous attention of, and ultimate decision by, commissioners and judges from 1956 through 1964.
Since section 204 is not applicable in this proceeding, petitioners must rely on other grounds to avoid being saddled with the burden of ultimate persuasion. To determine who has the burden, it is helpful to analyze what must be proved. The petitioners are supplemental news-wire services essentially supplementing, amplifying and augmenting the immediate on-the-spot reports provided by the Associated Press and United Press International through interpretative in-depth reporting of news events. The supplemental provide their parent corporations and member newspapers with these news reports. They also provide this service to any other newspaper who wishes to subscribe. It is alleged by the press parties that the rates currently in effect for non-press users, if applied to the press, would cause the news services to either discontinue the service or raise their prices and as a result lose subscribers. In either event, they claim, there is a significant impairment on the widespread dissemination of news. To solve these issues there must be a factual inquiry. Also true is that there certainly can be no impact on the dissemination of news unless petitioners stop disseminating news or their customers ask them to stop disseminating it. Obviously, petitioners are the only ones who can provide information on these matters so crucial to their claim.
Having now put the burden of ultimate persuasion on the petitioners, it is our task to determine whether there is a rational basis for the Commission’s decision that petitioners failed to meet their burden. If petitioners can show either that some of them, because of the increased wire costs, will be forced to discontinue their wire services or that, if these increased wire costs are passed on to their customers, a substantial number of these customers will cancel their subscriptions, then and only then can petitioners be said to have met the ultimate burden of persuasion. Petitioners failed in both respects. Though the percentage increases of charges to the newswire services for telegraph and telephotograph services were in some eases great, in no case was it shown that the total cost under the new rates would amount to more than one percent of the total operating costs of the supplemental wire services’ parent corporations. It is reasonable to assume, and thus proper for the Commission to hold, that such a small increase in operating costs would not cause the parent corporations to discontinue their news services. The fact that most of the supplemental news services have been money-losing operations for years and have still been retained is evidence of their value to the parent and thus, of the unlikelihood of their discontinuance when such a small increase is involved. Now let us examine the factual evidence brought forth by the press parties with regard to their plan to pass on the increased rates by way of increased charges to their subscribers and which subscribers they expect to lose after such increase. Despite the request of the Common Carrier Bureau (App. 154), absolutely no persuasive evidence on these points was forthcoming. The only evidence received remotely relevant on these points was speculative, general and unsupported by factual information. The Executive Vice-President of Field Enterprises, Inc. could only testify that “many of our existing subscribers might be forced to discontinue receiving our service because of these increased expenses.” (App. 202) (Emphasis added.) The Manager of the Los Angeles Times Syndicate and the Los Angeles Times-Washington Post News Service likewise stated that “we might lose * * * a substantial number of subscribers.” (App. 212) (Emphasis added.) A logical, and perhaps inescapable inference one may draw from these uncertain statements is that the news services might not lose any subscribers despite increased costs. Other witnesses that testified for the press parties offered no factual evidence to support their conclusion that they would lose a significant number of subscribers to their newswire services due to the increased costs. In this regard the press parties were unresponsive to the Commission’s legitimate requests for “data showing present and proposed monthly charges [to their subscribers], number of stations in service and number of anticipated station cancellations because of increase in monthly charges.” (App. 154, 163.) “In order to serve the basic interest of the public the Commission is entitled to insist upon more than conclu-sional allegations easily made and which, if accepted, entail unjustified delay and consumption of the Commission’s time and energy.” Folkways Broadcasting Co. v. F.C.C., 126 U.S.App.D.C. 123, 127, 375 F.2d 299, 303 (1967). It is patently obvious then that the press parties ut
The Commission, though not compelled to do so, also specifically affirmed the positive finding of the hearing examiner that the increased charges “would not diminish, limit or impair the widespread dissemination of the news.”
Having carefully considered all issues discussed in this opinion and all others raised in the briefs, we hold that the Commission did not abuse its discretion under section 201(b) in failing to provide a separate rate classification for the press.
Affirmed.
Circuit Judge WILKEY concurs in the result.
. Petitioners here are the Copley Press, Inc., Field Ehterprises, Inc., and the Los Angeles Times-Wasliington Post News Service. Intervenors in support of petitioners are the American Newspaper Publishers Association (hereinafter “ANPA”), the Associated Press and United Press International. These are all newswire services or the parent corporations of such services, which provide hundreds of papers throughout the country with up-to-date news reports and similar material.
. A. T. & T. et al., 24 F.C.C.2d 565 (1970), aff’g hearing examiner’s initial decision, 25 F.C.C.2d 5 (1969).
. Section 201(b) provides in pertinent part:
All charges, practices, classifications, and regulations for and in connection with such communication service shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is declared to be unlawful: Provided, That communications by wire or radio subject to this chapter may he classified into day, night, repeated, unrepeated, letter, commercial, press, Government, and such other classes as the Commission may decide to he just and reasonable. * * *
47 U.S.C. § 201(b) (1964) (Emphasis added.)
. Wilson & Co. v. United States, 335 F.2d 788 (7th Cir. 1964).
. As previously mentioned, new rates were established in 1967 for non-press users and despite this nowhere was it ordered that the reasonableness of those rates were to be determined in the proceeding under review.
. 8ee footnote 3, supra.
. Petitioners, themselves, at oral argument stated:
Facts concerning adverse impact of news dissemination were obviously peculiarly within press parties’ knowledge. They knew how much they would be hurt.
. In Office of Communication of the United Church of Christ v. F.C.C., 138 U.S. App.D.C. 112, 425 F.2d 543 (1969), the court held that the Commission had an affirmative duty to help develop the record when an intervenor had raised a serious public interest question. In so doing the court refused to place the burden of proof on the intervenor. This case can readily be distinguished from ours. Unlike our case “the type of information [sought was] particularly in the control and at the disposal of [someone other than the intervenor]” (Id. at 116 n. 8, 425 F.2d at 547 n. 8). Furthermore, the Commission, as will be seen later, did not, as it did in United Church of Christ, “sit back and simply provide a forum for the intervenors” (Id. at 116, 425 F.2d at 547), but specifically requested of the petitioners, through its Common Carrier Bureau, the only actual evidence that possibly could have aided petitioners’ case.
. At the present time the same private line services provided the press are also provided to such “public interest” organizations as the American Red Cross and hospitals. There is evidence in the record that if lower rates are provided the press, there will necessarily follow an increase of rates to these non-press users.
. It is argued that the Commission did not actually make the finding since at one point in its order the Commission stated that “[d]ue to the paucity of probative evidence introduced by the press, the extent to which curtailment of news services is likely to occur cannot be determined. * * * ” A. T. & T. ei al. supra, 24 F.C.C.2d at 568. Whether the Commission did or not is, of course, irrelevant since the press parties clearly did not meet their burden of ultimate persuasion. At any rate the Commission did make such a finding (Id. at 567), and in making the above statement the Commission was only echoing the sentiments of one of petitioners’ own witnesses, who said, “There is no way of being mechanically precise about [the prospective loss of subscribers].” (App. 287). In other words, the Commission is saying they do not know exactly how many of the hundreds of newspapers throughout the country will cancel their subscriptions, but they do know that if there are any cancellations, there will be only a few.
Reference
- Full Case Name
- The COPLEY PRESS, INC., Field Enterprises, Inc., and Los Angeles Times-Washington Post News Service v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, American Newspaper Publishers Association, Intervenors
- Cited By
- 1 case
- Status
- Published