(dissenting).
I regret I am not able to concur in the opinion of the court in this ease. In point of fact, the controversy involves a contest between a radio station now located in Gary, Ind., and two stations now located in Chicago-, 111. The Indiana station now operates on the frequency of 1,360 kc.—the Chicago- stations on a frequency of 500 ka, sharing hours of operation. The Indiana station applied to the Commission for a modification of station license, and requested the frequency 560 kc. used by the two Chicago stations. The Commission granted the application. The opinion reverses this decision. I think it should be affirmed.
The question for decision, as it appears to me, is the right and power of the Radio Commission, in the public interest, to refuse to renew the license of a station in an overquota state and transfer its facilities to an applicant station in an underquota state. The answer, and the conditions on which the answer depends, requires an examination of the Act of March 28, 1928,. known as the Davis Amendment (45 Stat. 373, § 5, title 47 US CA § 89), which provides:
“See. 5. The second paragraph of section 9 of the Radio Act of 1927 is amended to read as follows:
“ ‘It is hereby declared that the people of all the zones established by section 2 of this Act [47 USCA § 82] are entitled to equality of radio broadcasting service, both of transmission and of reception, and in order to provide said equality the licensing authority shall as nearly as possible make and maintain an equal allocation of broadcasting licenses, of hands of frequency or wave lengths, of periods of time for operation, and of station power, to each of said zones when and in so far as there are applications therefor; and shall make a fair and equitable allocation of licenses, wave lengths, time for operation, and station power to each of tho States, tho District of Columbia, the Territories and possessions of tho United States within each zone, according to population. The licensing authority shall carry into effect tho equality of broadcasting service hereinbefore directed, whenever necessary or proper, by granting or refusing licenses or renewals of licenses, by changing periods of time for operation, and by increasing or decreasing station power, when applications are made for licenses or *858renewals of licenses: Provided, That if and when there is a lack of applications from any zone for the proportionate share of licenses, wave lengths, time of operation, or station power to which such zone is entitled, the licensing authority may issue licenses for the balance of the proportion not applied for from any zone, to applicants from other zones for a temporary period of ninety days each, and shall specifically designate that said apportionment is only for said temporary period. Allocations shall be charged to the State, District, Territory, or possession wherein the studio of the station is located and not where the transmitter is located/ ”
We have had occasion recently to examine the extent of the right conferred on the owner of a radio broadcasting station, and in Trinity Methodist Church, South, v. Federal Radio Commission, 61 App. D. C. —, 62 F.(2d) 856, decided this term, held that such right is permissive only, and, under the commerce clause, within the regulatory power of Congress. We said in that ease, as we have said in previous eases, that interstate radio broadcasting is interstate commerce, and that one who engages in interstate commerce does so subject to the regulatory power of Congress, and therefore obtains no property right to be free from the exercise. of that power. In the Trinity Church Case we stated the test to be whether the restrictive measures which Congress may apply from time to time are reasonably adapted to secure the purposes and objects of regulation. In such cases the enforcement of the regulation without compensation is not an unconstitutional taking of property, or without due process of law. Atlantic Coast Line v. Goldsboro, 232 U. S. 548, 558, 559, 34 S. Ct. 364, 58 L. Ed. 721. In the decision referred to we reached the conclusion that the power of Congress over the channels of interstate transmission was coextensive with the power of Congress over the navigable waterways of the country, and we called attention to the rule last announced by the Supreme. Court in the case of Greenleaf-Johnson Lumber Co. v. Garrison, 237 U. S. 251, 35 S. Ct. 551, 59 L. Ed. 939, which was a case where the owner of a wharf, constructed pursuant to the permission of the state prior to the assertion by the government of authority over the river, was required to demolish it without compensation when the government asserted its power and changed the lines of navigability.
' Section 9 of the Radio Act of 1927, as amended by section 5 of the Act of March 28, 1928, which I have quoted above, authorizes the Commission, in granting or refusing a license, or renewal of license, to bring about equality of broadcasting service in the different zones, into which the country is divided by section 2 of the act (47 USCA § 82), and to allocate the licenses, etc., within the zones proportionately between the states comprising the zone, according to population. The debates in Congress prior .to the adoption of the act of 1927 indicate a recognition by Congress of the well-known fact that, pri- or to the passage of the act, chaotic conditions existed in the broadcasting field. There were within fifty miles of Chicago forty stations, of New York thirty-eight, of Philadelphia thirty-two, and of San Francisco twenty-two. It was this unequal distribution of the limited number of wave lengths, etc., and the recognition of the principle that equality of service within the several states depends in considerable measure on a proper distribution of operating stations within the states, that induced the passage of the Davis Amendment. The amendment is a determination of policy by Congress, for its preamble declares: “It is hereby declared that the people of all the zones * * * al-k entitled to equality of' radio broadcasting service, both of transmission and of reception.” And, since it is based on the equality of privilege among the several states, it is neither unreasonable nor arbitrary. Nor can it be properly insisted there is any conflict between the requirements of the amendment atid the standard of public interest prescribed by the original act. The former of necessity yields to the latter. The Commission must take into consideration public convenience, interest, and necessity, and, if and when these be satisfied, then the standard of sectional equality is mandatory and should be applied.
The record here discloses that the state of Illinois is 55 per cent, over quota, while the state of Indiana is 22 per cent, under quota. Indiana has only sixteen stations of any power, only four of which are full-time stations,as compared to thirty-seven stations assigned to and operating in Illinois. Indiana has only one station with as much power as 5 kw., and that is only a part-time station, while eleven of the thirty-seven stations located in Illinois have power ranging from 5 to 56 bw. In these circumstances it is obvious that, if the Davis Amendment is to be applied, its terms are controlling in the conditions existing here, and this brings me to- consider whether, in view of the terms of the amendment, the decision of the Commission is capricious, unreasonable, or arbitrary.
The opinion of this court entirely ignores *859the findings of the Commission, bnt relies on those of the examiner, which the Commission expressly overruled. In so doing I think the court is substituting its own conclusions for those of the Commission, and I had assumed that, in view of the change in the statute (46 Stat. 844, 47 USCA .§ 96), this might not be done, especially since it is not claimed that there was any irregularity in the proceedings •or error in the application of the rules of law.
Summarized, the Commission’s findings of fact are that intervener’s (the Indiana station) then service was in all respects excellent, and that the granting of the application would extend and enlarge this service; that the effect of the withdrawal of appellants’ (the Chicago stations) permits would not militate in any respect against persons (the public) now within the area of those stations, nor the granting of the application (of the Indiana station) increase interference within that area with any other station; that the granting of the application would work a more equitable distribution of broadcasting facilities within that zone, and would serve the public interest, convenience, and necessity. The evidence, I think, sustains these conclusions.
It shows that the two Chicago stations operate together under temporary and revocable renewal licenses granted and accepted “subject to such action as the commission may take after hearing on the application filed by” the Gary (Indiana) station. One of the Chicago stations (Nelson Bros. Bond Company) had been in operation since 1925, and by original permit of the Radio Commission since November 27, 1927, at which time it was assigned to 560 ke. frequency in collaboration with the other appellant station (North Shore Church). It is affiliated with the National Broadcasting Company’s chain program broadcasting. Its companion station (North Shore Church) uses only the time from 12:30 to 4:30 p. m. and 7 to 8 o’clock p. m. on Sunday, and from 12 to, 12:30 p. m. •each day. Its broadcasts are exclusively religious in character. The evidence shows that both stations were complying in all respeets with the rules and regulations of the Radio Commission. Their area included the Calumet district served by intervener. It was determined by the Commission, however, that their withdrawal from the air would still leave that, as well as all other territory served by them, fully served by other stations broadcasting in the main substantially the same programs, and the evidence bears out this finding.
Intervener’s station is located at Gary, Ind., and, at the time of its application for greater facilities, was able to reach only a few miles outside the city proper. Beyond that it was subject to serious interference. Gary is a town of about a hundred thousand people, and the “Calumet territory” surrounding it has a population of approximately a million people, who. depend upon the steel industry for a living. Nearly two-thirds are of foreign birth. Intervener provides programs to meet the needs of this foreign population. Several witnesses described the station as the “community center.” Its programs are arranged to meet the wishes of each nationality, and are rendered both in English, and the languages of the different nationalities. Among its special features are English speaking programs, religious broadcasts, Americanization, amateur broadcasts by children, and community activities broadcasts. There is evidence in the record to support the Commission’s finding that on its present frequency it is not able to operate satisfactorily. To avoid this trouble and to meet the needs of the workers in Gary, and in that neighborhood, who, in normal times, work with three shifts on a full twenty-four hour day, it asks for full time and a change in frequency.
Epitomized, therefore, the evidence shows that all three stations concerned are now rendering satisfactory service, but that the operation of the two Chicago stations may be terminated without detriment to the public interest, and that the service of the Indiana station may be improved and extended in the public interest by granting to it the facilities now enjoyed by the other two. Coupled with this is the fact that the Chicago stations are located in an overquota state and the Indigna station in an underquota state. More than this is unnecessary if the intent of Congress, as expressed in the amendment, is to be given effect, for Congress has conferred on the Commission, in the first place, just as it had in the case of the Interstate Commerce Commission, the power to determine what is and what is not in the public interest, and, in the second place, has admonished it, when this condition is met, to “make a fair and equitable allocation of licenses, wave lengths, time for operation, and station power to each of the States, the District of Columbia, the Territories and possessions of the United States within each zone, according to population.” In the instant ease, the Commission has declared that, by reason of the character of the population in the Calumet district, its foreign origin, its hours of service, and *860such like matters, it is entitled to and ought to receive in the fullest measure possible the sort of program provided by the Gary station. This is no more than the recognition of a difference in sectional interests and conditions and an extension of the opportunity to those interests to gratify their local tastes. This was the purpose and object of the amendment.
If, therefore, upon an application for a station permit in an underquota state, or for an increase of facilities by an already authorized station, the Commission, after hearing, decides the public interest will be served by granting the application, and the evidence ■reasonably supports that decision, as undoubtedly is the ease here, I think it has, under the Davis .Amendment, not only the right and power to grant the application, but that the plain and explicit language of .the amendment requires it to do so, for in no other way can the equalization which Congress has declared should obtain be accomplished. In such a ease, if injury results to the holder of a revocable permit, the injury is said to be damnum absque injuria.
Since Congress possesses the power, the right to assert it may not be questioned, nor the motives which impel it inquired into, nor its wisdom challenged. It is for the courts to follow the law as they find it. Hamilton v. Distilleries Co., 251 U. S. 146, 161, 40 S. Ct. 106, 64 L. Ed. 194.
If Congress should hereafter think that the progress of the science and the stability of investments made in its development will be better advanced and the publio interest benefited by modification or reversal of the policy inducing the passage of the amendment, a repeal or modification will avoid such a situation as exists here, but that, unfortunately for appellants, is not now the case.
I am not unmindful of the fact that the effect of this is to impose upon the Commission great responsibility and wide powers affecting large investments in property, and likewise discretion in the ascertainment of the “public interest” without explicit standards or formulas. But as to this we can only say that the Supreme Court has several times approved standards no more definite in eases where, as here, the delegation was to executive boards or officers. See Mahler v. Eby, 264 U. S. 32, 41, 44 S. Ct. 283, 68 L. Ed. 549; Colorado v. United States, 271 U. S. 153, 169, 46 S. Ct. 452, 70 L. Ed. 878; Mutual Film Corp. v. Industrial Com., 236 U. S. 230, 245, 35 S. Ct. 387, 59 L. Ed. 552, Ann. Cas. 1916A, 296. Besides, the Radio Act requires certain definite information from those applying for permits, and this and the evidence of comparative benefits developed at the hearings-furnish a reasonable basis for applying the statutory standard as nearly free from unjust discrimination as is possible. Here the Commission has assigned definite reasons for its-refusal to renew appellants’ licenses on the one hand and the transfer of their facilities tointervener on the other. These, as we have-seen, show that the action taken would supply an existing need to the people in Indiana without corresponding loss to the people of' Illinois and would carry out the congressional' will. This, I think, is enough.
Judge HITZ authorizes me to say that he concurs in this dissent.