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Opinion of the Court.

343 U.S.

States, supra, at 400; United States v. Crescent Amusement Co., supra, at 185.

We have examined appellants' other contentions and concluded that they are without merit.

In accordance with the foregoing, the judgment below is

Affirmed.

MR. JUSTICE CLARK took no part in the consideration or decision of this case.

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Syllabus.

PUBLIC UTILITIES COMMISSION OF THE DISTRICT OF COLUMBIA ET AL. v. POLLAK ET AL.

NO. 224. CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.*

Argued March 3, 1952.-Decided May 26, 1952.

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

*Together with No. 295, Pollak et al. v. Public Utilities Commission of the District of Columbia et al., also on certiorari to the same court.

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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.

451

Opinion of the Court.

(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.

W. Theodore Pierson argued the cause for petitioners in No. 224 and respondents in No. 295. On the brief were Vernon E. West and Lloyd B. Harrison for the Public Utilities Commission of the District of Columbia, Edmund L. Jones, F. Gloyd Awalt, Samuel 0. Clark, Jr., Daryal A. Myse and W. V. T. Justis for the Capital Transit Co., and Mr. Pierson, Vernon C. Kohlhaas and Thomas N. Dowd for the Washington Transit Radio, Inc.

Paul M. Segal argued the cause for respondents in No. 224 and petitioners in No. 295. With him on the brief were John W. Willis, Charles L. Black, Jr. and Harry P. Warner. Also on the brief was Franklin S. Pollak, pro se.

MR. JUSTICE BURTON delivered the opinion of the Court.

The principal question here is whether, in the District of Columbia, the Constitution of the United States precludes a street railway company from receiving and amplifying radio programs through loudspeakers in its passenger vehicles under the circumstances of this case.

Opinion of the Court.

343 U.S.

The service and equipment of the company are subject to regulation by the Public Utilities Commission of the District of Columbia. The Commission, after an investigation and public hearings disclosing substantial grounds for doing so, has concluded that the radio service is not inconsistent with public convenience, comfort and safety and “tends to improve the conditions under which the public ride.” The Commission, accordingly, has permitted the radio service to continue despite vigorous protests from some passengers that to do so violates their constitutional rights. For the reasons hereafter stated, we hold that neither the operation of the service nor the action of the Commission permitting its operation is precluded by the Constitution.

The Capital Transit Company, here called Capital Transit, is a privately owned public utility corporation, owning an extensive street railway and bus system which it operates in the District of Columbia under a franchise from Congress. Washington Transit Radio, Inc., here called Radio, also is a privately owned corporation doing business in the District of Columbia. Both are petitioners in No. 224.

1 Capital Transit Company originates from the Act of Congress of March 4, 1925, authorizing the merger of street railway corporations operating in the District of Columbia. 43 Stat. 1265, D. C. Code (1940) § 43-503. The merger was approved by Joint Resolution, January 14, 1933. 47 Stat. 752, 819, D. C. Code (1940) note following § 43–503. That Resolution required the new company to be incorporated under the District Code and its corporate articles to be approved by the Public Utilities Commission of the District. 47 Stat. 753, 819, D. C. Code (1940) note following $ 43– 503; see 31 Stat. 1284 et seq., D. C. Code (1940) § 29-201 et seq.

The same Resolution prohibited the establishment of any competitive street railway or bus line without the issuance of a certificate by the Commission to the effect that such line is necessary for the convenience of the public. 47 Stat. 760, D. C. Code (1940) $ 44–201. The only competing line in the District is a relatively small interurban line.

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