Evening star., 1939-04-23
Appeals Court Enters
Administrative Field,
F. {. {. Charges
Reheurinq Is Asked
On Its Decision in
PottsviIIe Cose
BY WILLIAM J. WHEATLEY.

Charging that the United States
Court Of Appeals of the District Of
Columbia is usurping the functions
of the administrative branch of the
Government, the Federal Communi-
cations Commission yesterday pc
titioned the court for rehearing on
its decision in the case of the Potts
vile Broadcasting Co.
In remanding the case to the
commission for reconsideration, the
court, it was said, in effect prohib-
tied the commission from consid-
ering any further evidence than
that already in the record. In so
doing William J. Dempsey, general
counsel, contended in his plea for
q rehearing, the court was telling
the commission how to administer
Its affairs, which, he held was out
side Of the jurisdiction Of the court.
Furthermore, it was indicated that
in the event the court insists on its
original decision, the commission
will take the matter to the United
States Supreme Court for decision.
AS q matter of fact, 1t requests the
court, in the event 1t denies the
commissions petition, to enter judg-
ment and stay the execution pend
ing application to the highest court
for a writ of certiorari.
Since the original decision in the
Pottsville case another station in the
same place filed an application for
a construction permit. and the COM
mission is ready to make decision
but held 1t up pending the courts
decision In the current case. The
court, however, according to COM
mission counsel, held that the ap-
plications Of the two stations could
not be considered on compare
tive basis but that the future ac-
ton of the commission in the Potts
vile case must be confined to the
record Of the commissions original
proceedings.
First Duty to Public.
The commission said that 1t did
not believe that the courts deci-
sion Of April 3 last gave due weight
to primary responsibility of the
commission under the Communica-
tions Act Of 1894 to execute the
statute in the interests of the pub
lie and will necessarily lead to re-
suits which subordinate the in
terests of the public to private in
terests Of particular applications
before the commission. The COM
mission added that it felt con-
strained to file the petition because
it believed that the court has in
vaded a field which the Supreme
Court Of the United States has
held is not the province Of the Dis
trict Court Of Appeals.
It is the contention Of commits
sion counsel that when the local
court decides case on appeal from
tho Communications Commission
the proceeding is terminated, and
although the commission is required
to respect and follow the courts
judgment in the exercise Of its ad-
ministrative functions, the commits
sion still has the same duties to
perform under the statute as 1t had
prior to the time an appeal is taken.
Obviously, 1t was pointed out, the
court cannot be invested with the
judicial power of the United States
and also be authorized to exercise
the executive power of the United
States since the exercise Of both
executive and judicial power Of the
United States cannot under the
Constitution be lodged in the hands
OF . single person or agency.
Administrative Function.
The court is told that it is not q
commission or superior executive
agency, and the commission Is not
a court. In fact, it was added, the
power Of the local court over the
commissioners is. If anything, less
than its power over other parties
before 1t because it cannot compel
the commissioners to act in their
official capacity as members of the
executive department or Govern
ment IN any way which would be
tantamount to the court exercising
an executive power.
It Is logical inference from the
decision Of the court early this
month, the commission said, that
the commission may at all times be
controlled by the court In the per-
formance Of the commissions func-
tions under the Communications
Act Of 1894 to the same extent as
an appellate Federal court may con-
troll the performance Of a lower
court Of its judicial functions. The
procedure to be followed by the COM
mission In arriving at its determina-
ton In q case was not and Is not
subject to court control, either be-
fore or after the appeal, it was as
serted, adding that it is still an
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