Mr. Paul M. Segal, of Washington, D.C., for Scripps-Howard radio, inc.
Messrs. Francis Biddle, Atty. Gen., and Thomas E. Harris, of Washington, D.C., for Federal Communications Commission.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
This case is here on certificate from the Court of Appeals for the District of Columbia. Judicial Code 239, 28 U.S.C. 346, 28 U.S.C.A. 346. The question certified relates to the power of the Court of Appeals to stay the enforcement of an order of the Federal Communications Commission pending determination of an appeal taken under 402(b) of the Communications Act of 1934, 48 Stat. 1064, 1093, 47 U.S.C.A. 402(b). [316 U.S. 4, 5] The circumstances which induced the Court to certify the question are these: On October 10, 1939, the Commission granted without hearing the application of WCOL, Inc., licensee of Station WCOL, Columbus, Ohio, for a construction permit to change its frequency from 1210 to 1200 kilocycles and to increase its power from 100 to 250 watts. The appellant, Scripps- Howard Radio, Inc., which is the licensee of Station WCPO, Cincinnati, Ohio, operating on a frequency of 1200 kilocycles with power of 250 watts, filed a petition for 'hearing or rehearing' requesting the Commission to vacate its previous order and set the WCOL application for hearing. The Commission denied this petition on March 29, 1940, and an appeal followed. In its statement of 'reasons for appeal', the appellant claimed that the Commission could not lawfully grant the WCOL application without hearing; that in granting the application theCommission departed from its rules and standards of good engineering practice; that the appellant was entitled to a hearing in order to show that the Commission's action did not serve the public interest since it would result in materially reducing the coverage of Station WCPO and thereby deprive a substantial number of listeners of 'the only local regional non-network service' available to them; and that in granting the WCOL application without hearing, the Commission violated the Due Process Clause of the Fifth Amendment.
The appellant asked the Court of Appeals to stay the Commission's order pending the disposition of its appeal. Even though the Court 'had consistently over a long period of years, and without objection on the part of the Commission, issued stay orders' in cases where such orders were found to be necessary, the Commission opposed the issuance of a stay order in this case on the ground that the Court was without power to grant a stay. The application was heard before the Court sitting with [316 U.S. 4, 6] three judges, which, with one judge dissenting, upheld the Commission's contention. A motion for rehearing before all six members of the Court was granted. The judges being equally divided on the question of the Court's power to grant a stay, the following question was certified to us:
The Commission suggests that the certificate should be dismissed because of the generality of the question. Lowden v. Northwestern Nat. Bank, 298 U.S. 160 , 56 S.Ct. 696. Read in the light of the preliminary statement certifying the facts which presented the question, Hill v. United States ex rel. Wampler, 298 U.S. 460, 464 , 56 S.Ct. 760, 762, the question is limited to the type of order made by the Commission in this case. It is therefore sufficiently specific.
The Communications Act of 1934 is a hybrid. By that Act, 47 U.S.C.A. 151 et seq., Congress established a comprehensive system for the regulation of communication by wire and radio. To secure effective execution of its policy of making available 'a rapid, efficient, Nation- wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges', Congress created a new agency, the Federal Communications Commission, to which it entrusted authority previously exercised by several other agencies. Under the Radio Act of 1927, 44 Stat. 1162, 47 U.S.C.A. 81 et seq., the Federal Radio Commission had broad powers over the licensing and regulation of radio facilities. The Mann-Elkins Act of 1910, 36 Stat. 539, 49 U.S.C.A. 1 et seq., gave the Interstate Commerce Commission general regulatory authority over telephone and telegraph carriers. In addition, the Post- [316 U.S. 4, 7] master General was empowered, under the Post Roads Act of 1866, 14 Stat. 221, 47 U.S.C.A. 1 et seq., to fix rates on government telegrams. 1 The Communications Act of 1934 was designed to centralize this scattered regulatory authority in one agency. See Message from the President to Congress, February 26, 1934, Sen.Doc. No. 144, 73d Cong., 2d Sess.; Sen. Rep. No. 781, 73d Cong., 2d Sess., p. 1; H.Rep. No. 1850, 73d Cong., 2d Sess., pp. 3-4.
The provisions for judicial review in the Act of 1934 reflect its mixed origins. Section 402(a) makes the provisions of the Urgent Deficiencies Act of October 22, 1913, 38 Stat. 208, 219, 28 U.S.C.A. 41( 28), pertaining to judicial review of orders of the Interstate Commerce Commission, applicable to 'suits to enforce, enjoin, set aside, annul, or suspend any order of the Commission under this Act (chapter) (except any order of the Commission granting or refusing an application for a construction permit for a radio station, or for a radio station license, or for renewal of an existing radio station license, or for modification of an existing radio station license)'. 48 Stat. 1064, 1093, 47 U.S.C.A. 402(a). The Urgent Deficiencies Act, which is thus incorporated in 402(a) of the Communications Act of 1934, provides for review in a specially constituted district court, with direct appeal to this Court. That Act authorizes the district court, in cases 'where irreparable damage would otherwise ensue to the petitioner', to allow a temporary stay of the order under review, subject to specified safeguards. 38 Stat. 208, 220, 28 U.S.C. A. 47. [316 U.S. 4, 8] Section 402(b) of the Communications Act of 1934 provides for review of the orders excepted from 402(a). It gives an appeal 'from decisions of the Commission to the Court of Appeals of the District of Columbia in any of the following cases: (1) By any applicant for a construction permit for a radio station, or for a radio station license, or for renewal of an existing radio station license, or for modification of an existing radio station license, whose application is refused by the Commission. (2) By any other person aggrieved or whose interests are adversely affected by any decision of the Commission granting or refusing any such application.' 48 Stat. 1064, 1093. This section follows 16 of the Radio Act of 1927, 44 Stat. 1162, as amended in 1930, 46 Stat. 844, 47 U.S.C.A. 96, the relevant portions of which are set forth in the margin. 2 See Sen.Rep.No. 781, 73d Cong., 2d Sess., p. 9; H. Report No. 1918, 73d Cong., 2d Sess., pp. 49-50; remarks of Senator Dill, in charge of the measure in the Senate, 78 Cong.Rec. 8825, and of Representative Rayburn, who occupied the same role in the House, 78 Cong.Rec. 10314.
Thus, in both the Radio Act of 1927 and the Communications Act of 1934, orders granting or denying applications for construction permits or station licenses and for renewal or modification of licenses were made reviewable by the Court of Appeals for the District of Columbia. 3 [316 U.S. 4, 9] And with respect to such appeals, both 16 of the Radio Act and 402(b) of the Communications Act were silent with respect to the power of the Court of Appeals to stay orders pending appeal. It is upon this silence in the Communications Act that the Commission bases its contention, made for the first time when this litigation arose in 1940, that the Court is without such power.
No court can make time stand still. The circumstances surrounding a controversy may change irrevocably during the pendency of an appeal, despite anything a court can do. But within these limits it is reasonable that an appellate court should be able to prevent irreparable injury to the parties or to the public resulting from the premature enforcement of a determination which may later be found to have been wrong. It has always been held, therefore, that, as part of its traditional equipment for the adminis- [316 U.S. 4, 10] tration of justice, 4 a federal court can stay the enforcement of a judgment pending the outcome of an appeal. In re Claasen, 140 U.S. 200 , 11 S.Ct. 735; In re McKenzie, 180 U.S. 536 , 21 S.Ct. 468.
Generally speaking, judicial review of administrative orders is limited to determining whether errors of law have been committed. Rochester Telephone Corp. v. United States, 307 U.S. 125, 139 , 140 S., 59 S. Ct. 754, 761, 762. Because of historical differences in the relationship between administrative bodies and reviewing courts and that between lower and upper courts, a court of review exhausts its power when it lays bare a misconception of law and compels correction. Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 144 , 145 S., 60 S.Ct. 437, 442. If the administrative agency has committed errors of law for the correction of which the legislature has provided appropriate resort to the courts, such judicial review would be an idle ceremony if the situation were irreparably changed before the correction could be made. The existence of power in a reviewing court to stay the enforcement of an administrative order does not mean, of course, that its exercise should be without regard to the division of function which the legislature has made between the administrative body and the court of review. 'A stay is not a matter of right, even if irreparable injury might otherwise result to the appellant. In re Haberman Manufacturing Co., 147 U.S. 525 , 13 S.Ct. 527. It is an exercise of judicial discretion. The propriety of its issue is dependent upon the circumstances of [316 U.S. 4, 11] the particular case.' Virginian Ry. v. United States, 272 U.S. 658, 672 , 673 S., 47 S.Ct. 222, 227, 228; see Merchants' Warehouse Co. v. United States, 283 U.S. 501, 513 , 514 S., 51 S.Ct. 505, 509, 510
These controlling considerations compel the assumption that Congress would not, without clearly expressing such a purpose, deprive the Court of Appeals of its customary power to stay orders under review. It is urged that such a manifestation appears in the provisions for judicial review contained in the Communications Act of 1934. Specifically, the Commission contends that since 402(a) incorporates the provisions of the Urgent Deficiencies Act of 1913 which explicitly authorize and regulate the issuance of stay orders, the ommission of any reference in 402(b) to a power to stay orders under review reflects a deliberate Congressional choice to deprive the Court of Appeals of this power.
The search for significance in the silence of Congress is too often the pursuit of a mirage. We must be wary against interpolating our notions of policy in the interstices of legislative provisions. Here Congress said nothing about the power of the Court of Appeals to issue stay orders under 402(b). But denial of such power is not to be inferred merely because Congress failed specifically to repeat the general grant of auxiliary powers to the federal courts. The Commission argues that the silence of Congress, in view of the legislative history of the Act and the nature of the orders reviewable under the Act, qualifies this general authority and is as commanding as if Congress had expressly withheld from the Court of Appeals the power to stay orders appealed under 402(b).
The legislative history can furnish no support for this contention. Neither the committee reports nor the hearings nor the debates contain any reference to the power to stay Commission orders on appeal. Significance is found in H.R. 7716, 72d Congress, a bill which was passed by both houses in 1933 but which failed of enactment be- [316 U.S. 4, 12] cause of a pocket veto. That bill proposed to amend 16 of the Radio Act of 1927 so as to vest concurrent jurisdiction (with the Court of Appeals for the District of Columbia) of revocation cases in the circuit courts of appeals, rather than in the district courts. The bill also provided that the reviewing court, whether a circuit court of appeals or the Court of Appeals for the District of Columbia, could enter a stay order 'upon the giving of a bond by the party applying for the stay in such amount and with such terms and conditions' as the court deemed proper.
It is suggested that if Congress had intended in the Act of 1934 to authorize the Court of Appeals to issue stay orders in appeals under 402( b), it would not have remained silent when only the year before it had attempted to enact into law a specific provision conferring that power. But H.R. 7716 and the Communications Act of 1934 were not parallel legislative proposals. The former was not a comprehensive legislative scheme for the unification of federal regulatory authority over communications. It proposed merely to amend the Radio Act of 1927 in several minor particulars. See H.Rep. No. 221, 72d Cong. 1st Sess., p. 7; Sen.Rep. No. 564, 72d Cong., 1st Sess., p. 7; Sen.Rep. No. 1004, 72d Cong., 2d Sess., p. 9. The enactment of the Communications Act of 1934, however, came after a message to Congress from the President on February 26, 1934, recommending the creation of a single authority over communication by wire and radio. Sen.Doc. No. 144, 73d Cong., 2d Sess. Earlier in 1934 an interdepartmental committee had made a study of the entire communications situation. Extensive public hearings on the question of regulating the whole field of communications were held by both the Senate and House Committees on Interstate Commerce. It is obvious, therefore, that what Congress undertook to do by the Communications Act of 1934 was entirely different from what it tried to do the previous year in H.R. 7716. [316 U.S. 4, 13] We are told that in drafting 402 Congress had before it and relied extensively upon H.R. 7716, and reference is made to the citations to that bill in the statement of the House managers. H.Rep. No. 1918, 73d Cong., 2d Sess., pp. 47-49. But whatever reliance was placed upon H.R. 7716 by the framers of the 1934 legislation was without relation to its provisions for judicial review. For in that same statement (p. 47) it is said that 'provisions of the Radio Act of 1927 relating to judicial review have been included' in the bill. And, as has previously been noted, even though the Radio Act of 1927 contained no provisions dealing with the authority of the Court of Appeals for the District of Columbia to stay orders of the Commission on appeal, the Court had been issuing stays as a matter of course wherever they were found to be appropriate, without objection by the Commission. Boston Broadcasting Co. v. Federal Radio Commission, 62 App.D.C. 299, 67 F.2d 505, decided June 19, 1933.
It is indisputable that, at least since 1930, the Court of Appeals has been staying orders both of the Federal Radio Commission, under 16 of the Radio Act of 1927, and of the Federal Communications Commission, under 402(b) of the Communications Act of 1934, whenever stays were regarded as necessary. To be sure, in only one case, the Boston Broadcasting decision, supra, did the Court of Appeals even refer to the granting of a stay order. The explanation is not hard to find. The power to stay was so firmly imbedded in our judicial system, so consonant with the historic procedures of federal appellate courts, that there was no necessity for the Court of Appeals to justify its settled practice. 5 [316 U.S. 4, 14] The considerations of policy which are invoked are as fragile as the legislative materials are inapposite. It is said that the nature of the orders reviewable under 402(b) makes the grant of a stay order manifestly inappropriate since a stay would in effect involve the judicial exercise of an administrative function. An example is adduced of an appeal from an order denying an application for a construction permit or a station license, or for modification or renewal of a license. Of course, no court can grant an applicant an authorization which the Commission has refused. No order that the Court of Appeals could make would enable an applicant to go on the air when the Commission has denied him a license to do so. A stay of an order denying an application would in the nature of things stay nothing. It could not operate as an affirmative authorization of that which the Commission has refused to authorize. But this is no reason for denying the Court the power to issue a stay in a situation where the function of the stay is to avoid irreparable injury to the public interest sought to be vindicated by the appeal.
The Communications Act of 1934 did not create new private rights. The purpose of the Act was to protect the public interest in communications. By 402(b) (2) Congress gave the right of appeal to persons 'aggrieved or whose interests are adversely affected' by Commission action. 48 Stat. 1064, 1093. But these private litigants have standing only as representatives of the public interest. Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 477 , 642 S., 60 S.Ct. 693, 698, 1037. Compare National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 362 , 363 S., 60 S.Ct. 569, 576. That [316 U.S. 4, 15] a court is called upon to enforce public rights and not the interests of private property does not diminish its power to protect such rights. 'Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.' Virginian Ry. v. System Federation, 300 U.S. 515, 552 , 57 S.Ct. 592, 601. An historic procedure for preserving rights during the pendency of an appeal is no less appropriate-unless Congress has chosen to withdraw it- because the rights to be vindicated are those of the public and not of the private litigants. Unless Congress explicitly discloses such an intention we should not lightly attribute to it a desire to withhold from a reviewing court the power to save the public interest from injury or destruction while an appeal is being heard. To do so would stultify the purpose of Congress to utilize the courts as a means for vindicating the public interest. Courts and administrative agencies are not to be regarded as competitors in the task of safeguarding the public interest. United States v. Morgan, 307 U.S. 183, 190 , 191 S., 59 S.Ct. 795, 799; Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134 , 60 S.Ct. 437. Courts no less than administrative bodies are agencies of government. Both are instruments for realizing public purposes.
It is urged that the orders reviewable under 402(a), as to which the power to grant stays is undeniable, are intrinsically different from those reviewable under 402(b). But while the two sections route appeals to different courts, the differentiation was in large measure the product of Congressional solicitude for the convenience of litigants. It had no relation to the scope of the judicial function which the courts were called upon to perform. For example, if the Commission on its own motion modifies a station license, review is had under 402(a) in the appropriate district court. However, if it grants an application for modification of a license, an appeal lies under 402( [316 U.S. 4, 16] b) to the Court of Appeals for the District of Columbia. Both cases give rise to the same kind of issues on appeal. Both orders are equally susceptible of being stayed on appeal. As the legislative history of the Act plainly shows, Congress provided the two roads to judicial review only to save a licensee the inconvenience of litigating an appeal in Washington in situations where the Commission's order arose out of a proceeding not instituted by the licensee.