FRANKFURTER, J., concurring. 307 U.S. wasteful aspects of rate litigation) as a fair means of accommodating public and private interests. It is a carefully guarded device for securing "a judgment from experience as against a judgment from speculation," Tanner v. Little, 240 U. S. 369, 386, in dealing with a problem of such elusive economic complexity as the determination of what return will be sufficient to attract capital in the special setting of a particular industry and at the same time be fair to the public dependent on such enterprise. That this Court should not "decide an issue of constitutionality if the case may justly and reasonably be decided under a construction of the statute under which the act is clearly constitutional" is, as an abstract proposition, basic to our judicial obligation. But this is not a formal doctrine of self-restraint. Its rationale is avoidance of conflict with the legislature. The opinion from which the preceding quotation is taken and the decisions to which it refers are all cases in which constitutionality was in obvious jeopardy. It is one thing to avoid unconstitutionality even at the cost of a tortured statutory construction. It is quite another to recognize the validity of a statute directed expressly to the situation in hand and so employed by the state authorities, when constitutionality of that statute is as incontestably clear as the decision of the New York Court of Appeals has demonstrated it to be in sustaining the sister statute of the Pennsylvania Act, In the Matter of Bronx Gas & Electric Co. v. Maltbie, 271 N. Y. 364; 3 N. E. 2d 512. The Court's opinion in the present case does not avoid issues of constitutionality. It accepts the much more dubious constitutional doctrines of Smyth v. Ames and its successors to solve the very easy constitutional issues raised by the Pennsylvania Act. MR. JUSTICE BLACK Concurs in the above views. Counsel for Parties. ROCHESTER TELEPHONE CORP. v. UNITED STATES ET AL. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NEW YORK. No. 481. Argued March 7, 1939-Decided April 17, 1939. 1. Factors involved in reviewability vel non of orders of administrative bodies such as the Interstate Commerce Commission and the Federal Communications Commission are analyzed and the governing principles stated. Pp. 129 et seq. 2. Any distinction between "negative" and "affirmative" orders, as a touchstone of jurisdiction to review commission orders, serves no useful purpose, and in so far as earlier decisions have been controlled by this distinction, they can no longer be guiding. P. 143. 3. An order of the Federal Communications Commission determining the status of a telephone company as one subject to jurisdiction under § 2 (b) of the Communications Act of 1934, because of its control by another, and therefore bound by earlier general orders requiring all telephone carriers so subject to file schedules of charges, copies of contracts, and other information, held reviewable on questions of law under the Urgent Deficiencies Act of Oct. 22, 1913, as extended to the Communications Act. P. 143. 4. A finding of the Federal Communications Commission that a telephone company, engaged in interstate commerce solely through physical connection with the facilities of another, was under the other's control within the meaning of § 2 (b) of the Communications Act of 1934,-held justified by the facts before the Commission concerning the relations between the two companies. P. 144. The existence of such "control" is an issue of fact to be determined by the Commission by the special circumstances of each case and not by artificial tests. 23 F. Supp. 634, affirmed. APPEAL from a District Court of three judges dismissing on the merits a bill to set aside an order of the Federal Communications Commission. Mr. T. Carl Nixon, with whom Messrs. E. Willoughby Middleton and Justin J. Doyle were on the brief, for appellant. Opinion of the Court. 307 U.S. Mr. Hugh B. Cox, with whom Assistant Solicitor General Bell, Assistant Attorney General Arnold, and Messrs. Robert M. Cooper and William J. Dempsey, and Elizabeth C. Smith were on the brief, for appellees. MR. JUSTICE FRANKFURTER delivered the opinion of the Court. This is an appeal, under § 238 of the Judicial Code as amended (28 U. S. C. § 345), from a final decree by a district court of three judges, under the Urgent Deficiencies Act of October 22, 1913 (28 U. S. C. §§ 45, 47a) as extended by § 402 (a) of the Federal Communications Act (47 U. S. C. § 402 (a)), dismissing on the merits a bill to review an order of the Federal Communications Commission. At the outset a challenge to the jurisdiction of the District Court confronts us. It involves those problems of administrative law which are implied by the doctrine of "negative orders." Inasmuch as this phrase is shorthand for a variety of situations, sharp heed must be given to the precise circumstances inter alia, the statutory provisions for review, the terms of the contested order, the grounds of objection to it-which in this and other cases have invoked the doctrine. Section 2 (b) of the Communications Act of 1934 provides that, with certain exceptions not here material, the Communications Commission shall not have jurisdiction over any carrier "engaged in interstate or foreign communication solely through physical connection with the facilities of another carrier not directly or indirectly controlling or controlled by, or under direct or indirect common control with, such carrier." The appellant, Rochester Telephone Corporation (hereafter called the Rochester), is a New York corporation maintaining a system of telephone communications in and around the City of Rochester. For present purposes the Rochester is to be 125 Opinion of the Court. deemed as engaged in interstate communications solely because of physical connections with the facilities of the New York Telephone Company (hereafter called the New York). The present controversy grew out of a ruling by the Federal Communications Commission that the Rochester owed obedience to a series of orders issued by the Commission. These orders required all telephone carriers subject to the Act to file schedules of their charges, copies of contracts with other telephone carriers, information concerning their corporate and service history, their relations with affiliates, their use of franks and passes. Copies of these orders were duly served on the Rochester. No response being had, the Telephone Division of the Communications Commission, on October 9, 1935, ordered the Rochester to show cause why it should not be required to file responses to the general orders theretofore served upon it.1 The Rochester answered, claiming to be outside the requirements of the Act except as to matters not here questioned. 2 To ascertain the facts in the contested issue, the Commission appointed a trial examiner. At hearings held by him the Rochester entered a special appearance, denying the Commission's jurisdiction and contending that the burden of proof was on the Commission to show that Rochester did not come within the exclusionary provisions of § 2 (b) (2). After a thorough hearing and the submission of briefs, the examiner filed his report, to which the Rochester duly excepted. Upon the basis of these proceedings and of argument before it, the Commission, through its Telephone Division, sustained the findings of its chief examiner, determined that the Rochester was 'On November 13, 1935, the order was amended in matters not here relevant. The hearing before the examiner lasted two days; 221 pages of testimony were taken and 34 exhibits were introduced. Opinion of the Court. 307 U.S. under the "control" of the New York and therefore not entitled to the classification of a mere connecting carrier under § 2 (b) (2). Accordingly, the Commission ordered the Rochester classified "as subject to all common carrier provisions of the Communications Act of 1934, and, therefore, subject to all orders of the Telephone Division." A petition for rehearing before the full Commission was denied. The Rochester thereupon filed the present bill, alleging that the order entered by the Commission on November 18, 1936, pursuant to its Report, was contrary to undisputed facts and erroneous as a matter of law, and that the Commission's threat to enforce it put the Rochester to the hazard of irreparable injury, and praying that the District Court "make and enter its order and decree setting aside and annulling said orders of the Federal Communications Commission herein before mentioned, and each and all of them, and enjoining the enforcement of said orders, except in so far as the provisions of said orders . . . have already been complied with." The case was disposed of in the District Court on the pleadings and the record before the Commission. Below, the Government made no objection to the District Court's jurisdiction, nor did that Court raise the question sua sponte. It sustained the Commission's action on the merits and dismissed the bill. Here, the Government urges that under the doctrine of "negative orders" the Commission's order was not reviewable, but, in the alternative, supports the decree on the merits. The relation of action by the Federal Communications Commission to the reviewing power of the courts is here 3 Under United States v. Corrick, 298 U. S. 435, 440, and United States v. Griffin, 303 U. S. 226, 229, the doctrine of "negative orders" implies a jurisdictional defect which courts must consider sua sponte. |