Public Utilities Comm’n v. Pollak, 343 U.S. 451 (1952)

Public Utilities Commission v. Pollak

Argued March 3, 1952
Decided May 26, 1952 *
343 U.S. 451

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

A street railway company in the District of Columbia, whose service and equipment are subject to regulation by the Public Utilities Commission of the District of Columbia, receives and amplifies radio programs through loudspeakers in its streetcars and busses. The programs consist generally of 90% music, 5% announcements, and 5% commercial advertising. The Commission, after an investigation and public hearings disclosing substantial grounds for doing so, concluded that the radio service is not inconsistent with public convenience, comfort and safety; and permitted it to continue despite protests of some passengers that their constitutional rights are thereby violated.

Held: Neither the operation of the radio service nor the action of the Commission permitting its operation is precluded by the Federal Constitution. Pp. 453-466.

1. Upon review of the Commission’s decision, the courts are expressly restricted by statute to the facts found by the Commission, insofar as those findings do not appear to be unreasonable, arbitrary or capricious. Pp. 458-460.

2. Apart from the constitutional issues, the order of the Commission dismissing its investigation was in accord with its prescribed statutory procedure and within the discretion properly vested in the Commission by Congress. Pp. 460-461.

(a) It is within the statutory authority of the Commission to prohibit or to permit and regulate the receipt and amplification of radio programs under such conditions that the total utility service shall not be unsafe, uncomfortable or inconvenient. P. 461.

3. This Court finds it appropriate to examine into what restriction, if any, the First and Fifth Amendments place upon the Federal Government under the facts of this case, assuming that the action of the street railway company in operating the radio service, together with the action of the Commission in permitting such operation, amounts to sufficient Federal Government action to make the First and Fifth Amendments applicable thereto. Pp. 461-463.

(a) The First and Fifth Amendments apply to and restrict only the Federal Government, and not private persons. P. 461.

(b) In finding a sufficiently close relation between the Federal Government and the radio service to make it necessary to consider the First and Fifth Amendments, this Court relies particularly upon the fact that the Commission, an agency authorized by Congress, ordered an investigation of the radio service and, after formal public hearings, ordered its investigation dismissed on the ground that the public safety, comfort and convenience were not impaired thereby. P. 462.

4. The Commission did not find, and the testimony does not compel a finding, that the radio programs interfered substantially with the conversation of passengers or with rights of communication constitutionally protected in public places; nor is there any substantial claim that the programs have been used for objectionable propaganda. P. 463.

5. The radio programs do not invade rights of privacy of the passengers in violation of the Fifth Amendment. Pp. 463-465.

(a) The Fifth Amendment does not secure to each passenger on a public vehicle regulated by the Federal Government a right of privacy substantially equal to the privacy to which he is entitled in his own home. P. 464.

(b) In its regulation of streetcars and busses, the Federal Government is not only entitled, but is required, to take into consideration the interests of all concerned. P. 464.

(c) Where a regulatory body has jurisdiction, it will be sustained in its protection of activities in public places when those activities do not interfere with the general public convenience, comfort and safety. Pp. 464-465.

(d) The supervision of such practices by the Public Utilities Commission in the manner prescribed in the District of Columbia meets the requirements both of substantive and procedural due process when it is not arbitrarily and capriciously exercised. P. 465.

(e) The personal liberty which is protected by the Fifth Amendment does not permit an objector to override the preference of the majority of the other passengers and the regulatory body’s finding, upon hearing and evidence, that the radio service was consistent with the public convenience, comfort and safety. P. 465.

(f) The question of the desirability of the radio service is a matter for decision between the street railway company, the public and the Commission. P. 465.

6. Since the radio programs containing music, commercial advertising and other announcements are constitutionally permissible, it is clear that programs limited to a like type of music alone would not be less so. Pp. 465-466.

89 U.S.App.D.C. 94, 191 F.2d 450, reversed.

An appeal from an order of the Public Utilities Commission of the District of Columbia was dismissed by the District Court. The Court of Appeals partially reversed the judgment and directed that the Commission’s order be vacated. 89 U.S.App.D.C. 94, 191 F.2d 450. This Court granted certiorari. 342 U.S. 848. Reversed, p. 466.