text:
    UNITED STATES of America v. Bobby J. LEONARD, Appellant.
    No. 73-1769.
    United States Court of Appeals, District of Columbia Circuit.
    June 6, 1974.
    Joseph Pauli, Washington, D. C. (appointed by this court) was on the brief for appellant.
    Earl J. Silbert, U. S. Atty., with whom John A. Terry, John H. Bayly, Jr. and Julius A. Johnson, Asst. U. S. Attys., were on the brief for appellee.
    Before MacKINNON and WILKEY, Circuit Judges, and JAMESON, United States Senior District Judge for the District of Montana.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   MacKINNON, Circuit Judge:

On March 12, 1970, appellant Leonard was adjudged guilty by the United States District Court for the District of Columbia of first degree burglary, grand larceny and forgery and uttering and

committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of
Five (5) years to fifteen (15) years on Count 1 ; Ten (10) years to thirty (30) years on Count 3 ; Three (3) years to nine (9) years on each of Counts 2 and 4; and Two (2) years to six (6) years on each of Counts 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14, said sentences, by the Counts, to run concurrently and concurrently with the sentence now being served.

The written “Judgment and Commitment” signed by the court “Ordered that [a] copy serve as the commitment of the defendant.” (Government Exhibit 1.) Pursuant to the aforesaid Judgment appellant was committed to serve his sentence at Lorton Reformatory which is located in the Commonwealth of Virginia within commuting distance of the District of Columbia.

While appellant was confined at Lorton he became a member in that institution of a group of 20 inmate-entertainers which called themselves the “Apostles of Soul.” Appellant acted as a master of ceremonies and the group was permitted on occasion to make escorted tours outside the prison to provide musical entertainment for various local groups pursuant to prior arrangements. Such trips were made in a bus with barred windows and other security features and the guards who escorted the group consisted of Department of Corrections personnel. All the surrounding circumstances supported the obvious conclusion that such trips were not intended as journeys to freedom. Prior to November 20, 1971, appellant had made at least one trip outside the reformatory and returned with the group to the reformatory after their performance was concluded.

On November 20, 1971, this “Apostles of Soul” group was scheduled for an evening performance in the District of Columbia. This trip was similar to the one appellant had participated in earlier. Before it left the group was given written and oral instructions concerning conduct and procedures for such trips (Tr. 20-23) and wás instructed to remain in the immediate area of the performance and to return to the bus for the trip back to Lorton (Tr. 20). After leaving the reformatory the group was taken in the custody of the guards from the Department of Corrections, first to attend a beauty pageant at Terrell High School in Northwest Washington and thereafter the group was taken about three blocks away to furnish musical entertainment at a youth center banquet.

Appellant was last seen at the school. After the banquet a search for appellant was conducted and the departure of the bus was delayed for about an hour but appellant never appeared nor could he be found. About six months later, on May 18, 1972, an FBI agent arrested appellant on a warrant at an apartment in Brooklyn, New York. He was then working in that area. For such conduct he was indicted under the Federal Escape Statute, 18 U.S.C. § 751. The indictment provides:

On or about November 20, 1971, within the District of Columbia, BOBBY J. LEONARD, having been lawfully committed to the custody of the Attorney General on March 12, 1970, by virtue of a conviction and sentence imposed by the United States District Court for the District of Columbia in Criminal Case Number 899-69, did unlawfully and feloniously flee and escape from such custody. “

Appellant waived a jury trial and was convicted by judgment of the court pursuant to a general finding of guilt and, on request of appellant, to special findings of facts. On June 18, 1973 he was sentenced to imprisonment for a period of

THREE (3) YEARS consecutive with any sentence now being served; pursuant however to the provisions of Title 18, UNITED STATES CODE SECTION 4208(a)(2).

Appellant now contends that he did not escape from “custody” as that term is used in the escape statute, 18 U.S.C. § 751(a). We disagree.

“Stone walls do not a prison make” and “custody” in the escape statute is not restricted in its meaning to escape from immediate confinement within prison walls. Even at common law two kinds of escape were recognized:

1. Without any act of force, and this is a simple escape.
2. With an act of force, viz., by breach of prison.

1 Hale’s P.C. 590. The English law also held it to be a criminal escape if a person arrested on criminal process escaped from the arresting officer “before he is put in hold.” II Blackstone 1306 (4th ed. 1899). What is charged here is a simple escape where the prisoner eludes the vigilance of the guards charged with his custody. Appellant and the “Soul” group were escorted by guards, conveyed in the prison-type bus and were required to return by instructions and regulations which were sufficient to satisfy the “custody” requirement. See United States v. Rudinsky, 439 F.2d 1074, 1076-1077 (6th Cir. 1971); United States v. Hollen, 393 F.2d 479 (4th Cir. 1968) McCullough v. United States, 369 F.2d 548 (8th Cir. 1966) ; Read v. United States, 361 F.2d 830 (10th Cir. 1966) ; Nace v. United States, 334 F.2d 235, 236 (8th Cir. 1964) ; Tucker v. United States, 251 F.2d 794 (9th Cir. 1958) ; Giles v. United States, 157 F.2d 588 (9th Cir. 1946), cert. denied, 331 U.S. 813, 67 S.Ct. 1197, 91 L.Ed. 1832 (1947) ; cf. People v. Owens, 236 Cal.App.2d 403, 46 Cal.Rptr. 91, 92, (1965) ; People v. Smith, 195 Cal.App.2d 789, 790, 16 Cal.Rptr. 111 (1961). The facts here more than satisfy the “custody” requirement, especially in view of a specific statute, applicable to § 751(a) offenses, which provides:

(d) The willful failure of a prisoner to remain within the extended limits of his confinement, or to return within the time prescribed to an institution or facility designated by the Attorney General, shall be deemed an escape from the custody of the Attorney General punishable as provided in chapter 35 of this title.

This is codified as 18 U.S.C. § 4082(d), P.L. 89-176, Sept. 10, 1965, 79 Stat. 675.

In United States v. Vaughan, 144 U.S.App.D.C. 316, 446 F.2d 1317 (1971), we pointed out that the foregoing provision was enaetéd in order to cover those escapes from outside prison walls which United States v. Person, 223 F.Supp. 982 (S.D.Cal.1963) held not to be within the escape statute. In Person a prisoner’s failure to return to a “half-way house” after having been given a five-hour night pass permitting him to make an unescorted trip to Los Angeles was held not to be an escape from “custody” within the meaning of 18 U.S.C. § 751. We held in Vaughan that § 4082(d) controlled and that therefore the failure of an accused, while awaiting trial for robbery, to return to jail while participating in a work release program (unescorted) under the Bail Reform Act was an escape from custody under 18 U. S.C.A § 751(a). Since § 4082(d) makes a mere wilful failure to return to the institution within the time prescribed an “escape,” even though no guard is escorting the prisoner as in Vaughan, then a fortiori the action of appellant Leonard in wilfully failing to remain within the extended limits of his confinement during the escorted trip under the circumstances'herein set forth is clearly an escape from custody and a violation of § 751(a), particularly as enlarged by § 4082(d). The testimony and the court’s findings support the conclusion that Leonard was sufficiently informed of the extended limits of his confinement. Appellant did not testify at the trial and to suggest on the bare facts of this case that a prisoner serving a sentence in the custody of the Attorney General as long as 10 to 30 years would have grounds to believe that he had satisfied such sentence within the short period he had been confined at Lorton, is to suggest the ridiculous. Moreover, the manner of his escape and the length of his absence are inconsistent with his claim that he did not act wilfully. We thus affirm the conviction.

Judgment accordingly.

      . D.O.Code § 22-1801 (a).

      . Id. § 22-2201.

      . Id. § 22-1401.

      . First degree burglary.

      . Id.

      . Grand larceny.

      . Forgery and uttering.

      . 18 U.S.C. § 751 provides :
      (a) Whoever escapes . . . from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or commissioner . . . shall, if the custody or confinement is by virtue of . . conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both ....

      . Fed.R.Crim.P. 23(c) provides:

        Trial Without a Jury. In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.
      As amended Feb. 28, 1966, eff. July 1, 1966.

      . At sentencing the court explained the application of 18 U.S.C. § 4208(a)(2) to his sentence as follows:
      The sentence I am about to give is one which will not add to your minimum time. That is the important thing. It will, however, be consecutive to the total time which would give you some incentive to continue to cooperate with the authorities.
      S¡5 * SK ❖ #
      (a) 2 of 4208 means that the Parole Board could release you tomorrow if this were your only sentence, but they would only release you when they are satisfied that is in the best interest of the community and yourself. . . .
      Sentencing Tr. at 7.

      . In Rudinsky, the prisoner was permitted to leave a treatment center between 6 A.M. and 6 P.M. for the purpose of holding regular employment and eating his meals. He eventually failed to return and was apprehended three months later. Held, he was in “custody” within the meaning of the escape statute, 18 U.S.C. § 751(a), even though he was not under constant supervision of guards since there was some restraint upon his complete freedom by virtue of the restrictions imposed by the treatment center which deprived the prisoner of his freedom of movement and association.

      . In Rollen, a prisoner participating in a work release program was guilty of escape in violation of 18 U.S.C. §§ 751, 4082 when he failed to return to the reformatory at the end of the work day and instead went to Washington, D. C., where he was captured twenty days later.

      . In McCullough, a prisoner assigned to a pre-release guidance center who signed out and failed to return at a designated time was guilty of an escape from “custody” even though the center had not been formally designated as a qualified place of confinement. The prisoners had been instructed to return at a designated time.

      . In Read, reformatory prisoners who were escorted by unarmed reformatory employees to a cafeteria in another city to participate in a speech contest and who were told not to leave the building were held to be in “custody” within the meaning of the escape statute, 18 U.S.C. § 751(a), when they fled through an unguarded door near rest rooms that they were permitted to visit without the immediate accompaniment of the accompanying guards.

      . In Nace, one sentenced to imprisonment was guilty of escape when, following a temporary release from a pre-release guidance center in order to permit him to work on a job, he absconded and failed to return when ordered.

      . In Tucker, a prisoner from Alcatraz was transported to Los Angeles pursuant to a habeas corpus ad testificandum. In Los Angeles he escaped while he was being wheeled outside the jail ward at a' hospital to get medical attention. He was handcuffed on a stretcher and accompanied by a hospital orderly.

      . In Giles, the prisoner was on the island outside Alcatraz prison and was a member of a working party under the supervision of prison guards.

      . Owens escaped from a prison camp where he was fighting forest fires under the supervision of a forestry supervisor. Held, that he was under constructive custody of the Department of Corrections.

      . The facts in Smith are essentially the same as in note 18, supra, except that Smith was merely instructed to work with a forestry crew.

      . Chapter 35 of this title is Title 18 U.S. Code, entitled “Escape and Rescue”, and includes §§ 751 to 757, inclusive. Subparagraph (d) quoted above appears in the Code as 18 U.S.C. § 4082(d). The appellant makes no reference to this statute nor to our decision in United States v. Vaughan, 144 U.S.App.D.C. 316, 446 F.2d 1317 (1971).

      . 18 U.S.C. § 3146(a)(5).

      . Appellant was instructed on “not leaving the area ... to load properly at time of departure and stay in the immediate área . . .” and was never given permission to leave the banquet or. pageant .area or to leave and not return to the bus (Tr. 20-21). The trial court made findings based on this testimony (Judge’s Findings, p. 2).


source: Caselaw Access Project

author: TAMM, Circuit Judge: J. SKELLY WRIGHT, Circuit Judge

license: Public Domain

text:
    ACTION ON SAFETY AND HEALTH, et al., Appellants, v. FEDERAL TRADE COMMISSION, Appellee.
    No. 73-1266.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 14, 1974.
    Decided April 17, 1974.

      Peter H. Meyers, Washington, D.C., with whom John F. Banzhaf, III, Washington, D.C., was on the brief, for appellants.
    James P. Timony, Atty., F. T. C., for appellee. Harold D. Rhynedance, Jr., Asst. Gen. Counsel, F. T. C., Nicholas S. Reynolds, Atty., F. T. C., Howard E. Shapiro, Atty., Dept, of Justice, and Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, were on the brief, for appellee.
    Before WRIGHT and TAMM, Circuit Judges, and WYZANSKI, United States Senior District Judge for the District of Massachusetts.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   TAMM, Circuit Judge:

Action on Safety and Health, a consumer protection organization, appeals from an order of the United States District Court for the District of Columbia, per Richey, J., dismissing a complaint which sought 1) review of the Federal Trade Commission’s (hereafter “Commission”) denial of intervention in a pre-complaint consent negotiation; and 2) broad declaratory and injunctive relief concerning the Commission’s consent order procedures generally. We hold that the District Court properly dismissed appellants’ claims, and the judgment is therefore affirmed.

Before reviewing the factual background, it may be helpful to discuss briefly the Commission’s consent order procedure contained in section's 2.31 to 2.35 of the Commission’s Rules of Practice, 16 C.F.R. §§ 2.31-2.35 (1973). Under these rules the Commission may notify a “proposed respondent” of its intention to institute a formal proceeding against him. Such notification contains a form of the proposed complaint which the Commission will issue, as well as the proposed order which the Commission will seek. If the proposed respondent elects, within 10 days, to attempt a settlement, negotiations begin between the Commission’s staff and the proposed respondent. If the parties are unable to agree, the Commission may commence formal adjudicative procedure pursuant to 16 C.F.R. § 3.11 (1973). If, however, an agreement is reached and accepted by the Commission, the provisionally accepted consent order is placed on the public record for a period of 30 days, during which time any interested party may file comments or views with the Commission. After reviewing any such public comments, the Commission may withdraw its acceptance of the proposed order or conclude the proceeding by final acceptance of the consent order either as originally proposed or as modified in light of comments received.

The facts underlying this appeal are not in dispute. On October 12, 1972, the Commission, pursuant to 16 C.F.R. § 2.-31, declared its intention to issue a complaint charging Volvo, Inc. and others with violation of § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45 (1970). The announcement was accompanied by both a proposed complaint and a proposed order. In sum, the complaint alleged that Volvo, Inc. had made false and deceptive advertising claims concerning the economy and durability of Volvo automobiles. The proposed order would have required Volvo, Inc. to cease and desist from making such claims unless it could substantiate the claims with appropriate facts.

At the request of Volvo, pursuant to 16 C.R.F. § 2.32, pre-complaint consent negotiations were begun. On November 6, 1972, during the negotiation period, appellants filed a motion with the Commission for leave to intervene in the negotiations. This motion was denied by the Commission on December 14, 1972.

The Volvo-Commission negotiations resulted in a consent order which was submitted to the Commission on November 17, 1972. On January 10, 1973, appellants filed their complaint in District Court seeking: 1) review of the Commission’s denial of intervention in the Volvo matter; 2) a declaration that the Commission’s present consent negotiation procedures were constitutionally defective due to insufficient public participation; and 3) injunctive relief to prevent the Commission from utilizing the allegedly unconstitutional procedures until such procedures were revised to provide for greater public participation.

On January 29, 1973, after oral argument, the District Court issued an order dismissing the complaint. The District Court found, in pertinent part:

[I]t appearing to the Court that it lacks jurisdiction of the subject matter hereof, for the reason that a grant or denial of intervention in Commission non-adjudicative consent negotiations is entirely discretionary with the Commission and is not judicially reviewable; and that no showing has been made that defendant has clearly violated an important constitutional or statutory right of plaintiffs since the commission’s consent order procedure, 16 C.F.R. sections 2.31-.35, affords plaintiffs ample and meaningful opportunity to comment on executed consent agreements prior to final acceptance or rejection of such agreements by the Commission ....

Appellants noted their appeal to this court on February 1, 1973, and moved the District Court for an injunction pending appeal. The District Court denied the motion. On March 13, 1973, the Commission provisionally accepted the proposed consent agreement and, pursuant to 16 C.F.R. § 2.34(b) placed the agreement on the public record for 30 days, thereby providing opportunity for public comment before the order was finally accepted. Appellants, on April 23, 1973, moved this court, under Rule 8(a) Fed.R.App.P., for an order staying the Commission from finally accepting the consent agreement pending appeal. This court denied appellants’ motion for stay. After the period for public comment had ended, the Commission, on June 26, 1973, issued the final order in the Volvo matter.

The first of appellants’ two arguments before this court is that the trial court erred in finding that the grant or denial of intervention in consent negotiations is “entirely discretionary with the Commission and is not judicially reviewable.”

Appellants admit that the sole express grant of judicial review in the Federal Trade Commission Act provides for review only of cease and desist orders and only at the request of respondents thereto. However, appellants rely on cases such as Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), arguing that an explicit provision for review of certain enumerated types of administrative action does not necessarily preclude review of non-enumerated actions. Thus, it is argued, unless the FTC Act contains “clear and convincing evidence” of an intent to withhold review, review must be granted.

We find that appellants’ analysis, with its emphasis on a broad presumption favoring judicial review, is misleading in deciding the question presented. The question before us is not whether appellants have a broad right to seek review of Commission orders but whether review of this agency action is precluded by law. One who must rely upon the APA review provisions to overcome the silence of a particular organic statute must take the good with the bad. The statute and the cases make it clear that if an action is “committed to agency discretion by law,” judicial review is not available. Our reading of Abbott Laboratories v. Gardner, supra,, convinces us only that if a particular organic statute is silent on the question of judicial review, courts should recognize the basic presumption favoring judicial review, embodied in the Administrative Procedure Act, “so long as . . . the action is not committed by law to agency discretion, 5 U.S.C. § 701(a).” Abbot Laboratories v. Gardner, supra, at 140 (emphasis supplied). See, e. g., Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 317, 78 S.Ct. 752, 2 L.Ed.2d 788 (1958); Curran v. Laird, 136 U.S.App.D.C. 280, 420 F.2d 122 (1969); United States v. One 1961 Cadillac, 337 F.2d 730 (6th Cir. 1964); K. Davis, Administrative Law Treatise § 28.16 at 64-65 (1970 Supp.). Our inquiry must focus on the precise question of whether the power to grant or deny intervention in a consent decree negotiation has been “committed to agency discretion by law.” If it has been so committed, § 701(a)(2) of the APA must control and judicial review is precluded. Although the order of the trial court did not specifically mention § 701(a)(2) of the APA, we are satisfied that the trial court relied upon this provision in dismissing appellants’ claim for lack of jurisdiction.

The action of the Commission here under examination is the denial of appellants’ motion to intervene in ongoing negotiation proceedings. The Federal Trade Commission Act is silent as to intervention in such consent negotiations. The Act speaks only of intervention in adjudications. The Commission’s Rules of Procedure make it clear that “Adjudicative proceedings . . . [do] not in-elude . . . negotiations for the entry of consent orders.” The United States Court of Appeals for the Second Circuit has held that the Commission’s consent order procedure was established pursuant to § 554(e) of the Administrative Procedure Act and that such negotiation proceedings are clearly not adjudicative in nature. The Second Circuit stated:

Nothing in the Administrative Procedure Act or in the basic principles of fair procedure precludes the Commission from creating and following a procedure for settling disputes without recourse to adjudication. Consent negotiations are not a stage in adjudication but a means of establishing whether adjudication can be avoided altogether. Like investigations, consent negotiations are distinct from the adjudicative process and hence not governed by the standards which control adjudicative procedure.

When it passed § 554(c) of the APA, Congress clearly intended that the development of informal consent decree procedures be left to the individual agency’s discretion. The court in Bristol-Myers v. FTC, supra, discussed the question of Congressional intent with regard to consent decree procedures, and stated:

Congress intended such negotiating proceedings to be informal, without the procedures inherent in trial-type hearings (right of examination and cross-examination, findings of fact and conclusions of law). Recognizing that the formalism of trial-type proceedings might not he conducive to successful settlement negotiations, Congress left to the agencies the power to develop the precise nature of informal proceedings that might be used to implement the statute. See S.Doc. 248, 79th Cong. 2d Sess. 24 (1946), Atty. Gen.’s Manual on the Administrative Procedure Act (1947).
•X1 •X*
In an informal consent negotiation pursuant to 5 U.S.C. § 554 there is no examination or cross-examination of witnesses, no findings of fact and no conclusions of law. If the negotiations are unsuccessful, no order at all can be entered. At that stage only if the Commission decides to file a complaint does an adjudicatory stage commence. If, on the other hand, the negotiation is successful, the parties present an agreement with a staff report to the full Commission, which remains on record for 30 days.

469 F.2d at 1120 (emphasis added).

We find the reasoning of the Second Circuit in Bristol-Myers v. FTC, supra, to be sound. Congress granted great discretion to the Commission to determine whether a potential respondent has violated the Act and whether a proceeding by the Commission against the violator would be in the public interest. Neither the Federal Trade Commission Act nor the Commission’s Rules of Procedure grant appellants any right to intervene in consent negotiations.' Rather, the power to prescribe consent negotiation procedure is part of the general enforcement power of the Commission, and such enforcement decisions are generally not subject to judicial review. In this area, concerned as it is with questions of administrative policy and allocation of scarce Commission resources, “the Commission alone is empowered to develop that enforcement policy best calculated to achieve the ends contemplated by Congress and to allocate its available funds and personnel in such a way as to execute its policy efficiently and economically.” Moog Industries, Inc. v. FTC, 355 U.S. 411, 413, 78 S.Ct. 377, 379, 2 L.Ed.2d 370 (1958).

Whether or not the denial of appellants' motion to intervene in the negotiations is agency action committed entirely to agency discretion is a question which must be answered by viewing the source of the Commission’s power to act. We believe that the whole consent negotiation procedure was promulgated by the Commission pursuant to its broad enforcement discretion. As such, we hold that the decision to grant or deny intervention is an agency action committed to agency discretion and therefore is specifically exempt from judicial review under § 701(a)(2) of the APA.

Appellants’ second argument is that the Commission’s present consent order rules do not provide the public with “constitutionally required ‘meaningful participation’ in consent proceedings.” It is their position that “the ‘meaningful’ participation guaranteed by the First and Fifth Amendments requires the Commission to adopt procedures designed to permit greater public participation .... ” This result, it is argued, is compelled by “both the due process interest in fairness and the first amendment interest in public participation in decisions which affect the public.” The trial court dismissed this portion of the complaint stating that “no showing has been made that defendant has clearly violated an important constitutional or statutory right of plaintiffs since the Commission’s consent order procedure . . . affords plaintiffs ample and meaningful opportunity to comment on executed consent agreements prior to final acceptance or rejection of such agreements by the Commission .... ”

The Commission’s rules do not deny due process to appellants because appellants have not demonstrated an interest in the Commission proceedings sufficient to make a due process analysis possible. To put it another way, the mere incantation of the phrase “due process” is not enough to require judicial examination of the Commission’s rules. Cases recently decided by the Supreme Court, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) , make it clear that a deprivation cognizable under the Fifth Amendment due process clause still must be a deprivation of life, liberty, dr property. In Goldberg v. Kelly, supra, there was no dispute that the termination of welfare benefits to appellees “adjudicate[d] important rights” of a property nature. The Court in Goldberg stated:

[Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action,

It is incumbent upon one who invokes the due process clause against government action to denominate specifically the deprivation he has suffered. Only then can a court ascertain what procedural due ' process is required. See Blackwell College of Business v. Attorney General, 147 U.S.App.D.C. 85, 454 F.2d 928, 932-933 (1971); Bell v. Burson, 402 U.S. 535, 540, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).

A careful reading of appellants’ papers, both those filed in the trial court and those filed here, discloses that at no time have appellants stated with specificity what they have been deprived of by the Commission’s action. Clearly it is not life or liberty within the meaning of the Fifth Amendment. As to a “property” interest, we can find none. Appellants here cannot sustain an allegation that Commission proceedings against Volvo may affect later private actions maintained by any individual who claims to have been injured by deceptive advertising. The Federal Trade Commission Act does not confer a private right pf action on any individuals. Holloway v. Bristol-Myers Corp., 158 U.S.App.D.C. 207, 485 F.2d 986 (1973).

Appellants, instead of demonstrating deprivation of a “property” interest, merely recite several cases which, they contend, confer on them the right to “meaningful participation” in the Commission’s consent decree procedures. In each case cited by appellants, the interest protected was first, clearly articulated, and second, of a more substantial nature than the right of an undefined “public” to participate in agency enforcement proceedings at a stage prior to formal adjudication. In Goldberg v. Kelly, supra, the issue was termination of welfare benefits which affected the recipients’ property interest in these benefits. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) involved the right of a natural father to receive notice of the pending adoption of one of his children. In Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir. 1968), the persons who pressed a due process claim were not members of the “public,”.but applicants for public housing, whose rights to such housing were directly affected by the governmental action. Similarly, Blackwell College of Business v. Attorney General, 147 U.S.App.D.C. 85, 454 F.2d 928 (1971), held that the college’s “approved” status was a valuable property in the nature of a license, which could not be revoked without due process protection.

In summary, we can find no merit in appellants’ asserted Fifth Amendment “right to participation” in the Commission’s proceedings. Before a court can evaluate the procedural due process to which a person is entitled, there must first be alleged with reasonable particularity the precise right which the government’s act is said to have altered or diminished. Without such an allegation —of a right to life, liberty, or property —there is simply no constitutional claim. As we have observed ante, the decision to allow intervention in nonadjudicative consent decree negotiations is committed to agency discretion. The appellants cite no precedent for their assertion that they have any interest in these proceedings which would entitle them to any due process safeguards. Because they have failed to identify their right with precision, meaningful analysis is impossible. For these reasons, we believe their claim that the Commission’s current Rules of Practice, 16 C.F.R. § 2.31-.35, violate the Fifth Amendment is without merit.

Turning now to appellants’ First Amendment claim, we note that appellants’ presentation to this court is singularly unenlightening. In support of their inchoate claim, bottomed apparently on the right to petition clause of the First Amendment, appellants offer neither relevant precedent nor reasoned analysis. We have, out of necessity, independently researched the relevant case law and find no judicial opinions to bolster appellants’ case. This being the situation, we merely affirm the trial court, stating only that if the guaranteed right to petition the government has any application to this case, the Commission has not abridged appellants’ rights by its failure to provide expanded public participation. While this resolution does not mark off the precise boundaries of the right to petition clause, we leave that task to a future day when the issue will be clarified and thoroughly briefed.

Affirmed.

J. SKELLY WRIGHT, Circuit Judge

(concurring):

I am pleased to concur in Judge Tamm’s excellent opinion because in my judgment it doés not preclude the possibility of judicial review in all circumstances of consent orders issued by the Federal Trade Commission under 5 U.S. C. § 554(c)(1) (1970).

      . Appellants additionally filed a Motion for Stay of Consent Negotiations until the Commission could rule on their motion for intervention; both motions were denied December 14, 1972.

      . Action on Safety and Health, et al. v. FTC, Civil Action No. 49-73, D.D.C., Order (unpublished) filed January 29, 1973 at 1-2; J.A. at D-l to D-2.

      . Id., Order filed February 14, 1973.

      . Order of June 11, 1973.

      . Brief of Appellants at 13. The Federal Trade Commission Act, 15 U.S.C. § 45(c) provides in pertinent part:
      Any person, partnership, or corporation required by an order of the Commission to cease and desist from using any method of competition or act or practice may obtain a review of such order in the court of appeals of the United States ....

      . Brief of Appellants at 13-15.

      . The Administrative Procedure Act exempts from judicial review “agency action . . . committed to agency discretion by law.” 5 U.S.C. § 701(a) (2) (1970).

      . Professor Davis makes it clear that inquiry must focus on the action taken. He states:
      The troublesome problem is not whether some administrative action is unreviewable because it is “committed to agency discretion by law” but is how to discover what particular action is so committed and what is not.

      K. Davis, Administrative Law Treatise § 28.16 at 965 (Supp.1970) (emphasis added). This analysis has been adopted by other courts. Ferry v. Udall, 336 F.2d 706 (9th Cir. 1964), cert. denied, 381 U.S. 904, 85 S.Ct. 1449, 14 L.Ed.2d 286 (1965).

      . 15 U.S.C. § 45(b) (1970).

      . 16 C.F.R. § 3.2 (1973).

      . 5 U.S.C. § 554(c) (1970) provides:
      (e) The agency shall give all interested parties opportunity for—
      (1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit; and
      (2) to the extent that the parties are unable so to determine a controversy by consent, hearing and decision on notice and in accordance with sections 556 and 557 of this title.

      . Bristol-Myers Co. v. FTC, 469 F.2d 1116, 1119-1120 (2d Cir. 1972) (emphases added), quoting In the Matter of William H. Rohrer, Inc., 64 F.T.C. 1446 (1964); accord, The Seeburg Corp. v. FTC, 8 F.T.C. Stat. & Dec. 393 (E.D.Tenn.1966), aff’d, Seeburg Corp. v. FTC, 425 F.2d 124, 130 (6th Cir.), cert. denied, 400 U.S. 866, 91 S.Ct. 104, 27 L.Ed.2d 105 (1970).

      . 15 U.S.C. § 45(b) (1970). See, e. g., Jacob Siegel Co. v. FTC, 327 U.S. 608, 611-612, 66 S.Ct. 758, 90 L.Ed. 888 (1946).

      . See, e. g., NLRB v. Indiana & Michigan Electric Co., 318 U.S. 9, 63 S.Ct. 394, 87 L.Ed. 579 (1943); Kixmiller v. SEC, 160 U.S.App.D.C. 375, 492 F.2d 641, 645 (1974) and cases cited therein.

      . Accord, FTC v. Universal Rundle Corp., 387 U.S. 244, 87 S.Ct. 1622, 18 L.Ed.2d 749 (1967). The holdings in these two eases are not contrary to the result reached today. In both cases appellants were respondents under cease and desist orders and complained of failure to prosecute competitors. They were not, as here, merely aspiring intervenors in a non-adjudicatory setting.

      . Appellants have directed our attention to various cases which they contend stand for the proposition that the APA does not preclude review iu this case. Examination of these cases reveals that none concerns the non-adjudicative consent negotiation procedure. Pepsico, Inc. v. FTC, 472 F.2d 179 (2d Cir. 1972) concerned intervenors who sought review of a cease and desist order which purportedly affected their rights directly. In Rettinger v. FTC, 392 F.2d 454 (2d Cir. 1968) and Robertson v. FTC, 415 F.2d 49 (4th Cir. 1969) petitioners seeking review were actual respondents in past proceedings which culminated in cease and desist orders. The question presented in both cases was whether proceedings begun subsequent to the issuance of cease and desist orders were “reopened adjudicatory proceedings” or “compliance” proceedings. The circuit courts in both cases denied jurisdiction. In Elmo Division of Drive-X Co., Inc. v. Dixon, 121 U.S.App.D.C. 113, 348 F.2d 342 (1965), appellant was a party to a prior consent decree, and the question was, whether the district court had jurisdiction to entertain a suit by appellant to enforce procedural rights which the Commission had granted to him in its prior decree.
      Thus, none of these cases has any bearing whatever on the question sub judice.

      . Brief of Appellants at 20. It is not entirely clear, but apparently appellants assert that the Commission procedure is constitutionally defective in all events, regardless of whether they are entitled to judicial review of the Commission order denying them intervention in this particular matter.

      . Id.

      . Id. at 21.

      . Action on Safety and Health v. FTC, supra note 2 at 1-2; J.A. at D-1 to D-2.

      . Goldberg v. Kelly, 397 U.S. 254, 261-262 (1970).

      . Id. at 263, quoting Cafeteria Restaurant Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230 (1961) (emphases added).

      . Appellants devote but one short paragraph of their brief to articulation and analysis of their First Amendment claim. This paragraph states, in full:
      The Supreme Court has also indicated that the right of “meaningful access to the agencies and courts” is part of the right to petition the Government, protected by the First Amendment. California Motor Transport Co. v. Trucking Unlimited, [404] U.S. [508, 511,] 92 S.Ct. 609, 612 [30 L.Ed.2d 642] (1972).
      Brief of Appellants at 21.

      . Appellants’ brief (see note 23 supra) cites only California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972), a case which has nothing at all to do with “public” participation in anything. That case holds that a carrier’s First Amendment right to initiate a court action does not give rise to immunity from civil liability if the initiation of the law suit is itself a violation of antitrust law.


author: TAMM, Circuit Judge:

text:
    NATIONAL PARKS AND CONSERVATION ASSOCIATION, Appellant, v. Rogers C. B. MORTON, Secretary, Department of the Interior, et al.
    No. 73-1033.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 16, 1974.
    Decided April 24, 1974.
    Rehearing denied June 7, 1974.

      Richard B. Wolf, Washington, D. C., with whom Victor H. Kramer and John F. Dienelt, Washington D. C., were on the brief for appellant.
    Lawrence H. Wechsler, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry and Arnold T. Aikens, Asst. U. S. Attys., were on the brief for appellees. Earl J. Silbert, Washington, D. C., also entered an appearance for appellees.
    Before BAZELON, Chief Judge, and WRIGHT and TAMM, Circuit Judges.
   TAMM, Circuit Judge:

Appellant brought this action under the Freedom of Information Act, 5 U.S.C. § 552 (1970), seeking to enjoin officials of the Department of the Interior from refusing to permit inspection and copying of certain agency records concerning concessions operated in the national parks. The district court granted summary judgment for the defendant on the ground that the information sought is exempt from disclosure under section 552(b) (4) of the Act which states:

(b) This section does not apply to matters that are—
(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential ....

In order to bring a matter (other than a trade secret) within this exemption, it must be shown that the information is (a) commercial or financial, (b) obtained from a person, and (c) privileged or confidential. Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670, 673 (1971), quoting Consumers Union of United States, Inc. v. Veterans Administration, 301 F.Supp. 796, 802 (S.D.N.Y. 1969), appeal dismissed, 436 F.2d 1363 (2d Cir. 1971). Since the parties agree that the matter in question is financial information obtained from a person and that it is not privileged, the only issue on appeal is whether the information is “confidential” within the meaning of the exemption.

I.

Unfortunately, the statute contains no definition of the word “confidential.” In the past, our decisions concerning this exemption have been guided by the following passage from the Senate Report, particularly the italicized portion:

This exception is necessary to protect the confidentiality of information which is obtained by the Government through questionnaires or other inquiries, but which would customarily not be released to the public by the person from whom it was obtained.

S.Rep.No. 813, 89th Cong., 1st Sess. 9 (1965) (emphasis added), cited in Sterling Drug, Inc. v. FTC, 146 U.S.App.D.C. 237, 450 F.2d 698, 709 (1971); Grumman Aircraft Engineering Corp. v. Renegotiation Board, 138 U.S.App.D.C. 147, 425 F.2d 578, 582 (1970). We have made it clear, however, that the test for confidentiality is an objective one. Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935, 938, cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970); cf. Benson v. General Services Administration, 289 F.Supp. 590, 594 (W.D.Wash.1968), aff’d, 415 F.2d 878 (9th Cir. 1969). Whether particular information would customarily be disclosed to the public by the person from whom it was obtained is not the only relevant inquiry in determining whether that information is “confidential” for purposes of section 552(b)(4). A court must also be satisfied that non-diselosure is justified by the legislative purpose which underlies the exemption. Our first task, therefore, is to ascertain the ends which Congress sought to attain in enacting the exemption for “commercial or financial” information.

In general, the various exemptions included in the statute serve two interests — that of the Government in efficient operation and that of persons supplying certain kinds of information in maintaining its secrecy. The Senate Report acknowledges both of these legislative goals:

At the same time that a broad philosophy of “freedom of information” is enacted into law, it is necessary to protect certain equally important rights of privacy with respect to certain information in Government files, such as medical and personnel records. It is also necessary for the very operation of our Government to allow it to keep confidential certain material, such as the investigatory files of the Federal Bureau of Investigation.

S.Rep.No. 813, 89th Cong., 1st Sess. 3 (1965). Some of the exemptions serve only one or the other of the two interests. The exemption for “inter-agency or intra-agency memorandums” is an example of an exemption intended to protect the orderly conduct of official business. On the other hand, the exemption for “personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” is clearly intended for the benefit of the individual from whom information is obtained. The exemption with which we are presently concerned has a dual purpose. It is intended to protect interests of both the Government and the individual.

The “financial information” exemption recognizes the need of government policymakers to have access to commercial and financial data. Unless persons having necessary information can be assured that it will remain confidential, they may decline to cooperate with officials and the ability of the Government to make intelligent, well informed decisions will be impaired. This concern finds expression in the legislative history as well as the case law. During debate on a predecessor to the bill which was ultimately enacted, Senator Humphrey pointed out that sources of information relied upon by the Bureau of Labor Statistics would be “seriously jeopardized” unless the information collected by the Bureau was exempt from disclosure. He was assured that such information was fully protected under the exemption as it then appeared. Although the exemption now contains the additional qualifying words “commercial or financial” the purpose of protecting government access to necessary data remains. As the Senate Report explains:

This exception is necessary to protect the confidentiality of information which is obtained by the Government through questionnaires or other inquiries. .

S.Rep.No. 813, 89th Cong., 1st Sess. 9 (1965) (emphasis added). The House Report states with respect to section 552(b)(4):

It would also include information which is given to an agency in confidence, since a citizen must be able to confide in his Government. Moreover, where the Government has obligated itself in good faith not to disclose documents or information which it receives, it should be able to honor such obligations.

H.Rep.No. 1497, 89th Cong., 2d Sess. 10 (1966) , U.S.Code Cong. & Admin.News 1966 at 2427. This court has formulated a similar definition of the governmental interest protected by the exemption:

This exemption is intended to encourage individuals to provide certain kinds of confidential information to the Government, and it must be read narrowly in accordance with that purpose.

Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067, 1078 (1971).

Apart from encouraging cooperation with the Government by persons having information useful to officials, section 552(b) (4) serves another distinct but equally important purpose. It protects persons who submit financial or commercial data to government agencies from the competitive disadvantages which would result from its publication. The need for such protection was raised several times during hearings on S. 1666, the predecessor of the bill which became law. As introduced, this bill contained no exemption for trade secrets or commercial or financial information. Among the witnesses who pointed out this deficiency was a representative of the National Association of Broadcasters who testified that broadcasters are required to file business information with the Federal Communications Commission which, if not exempt from public disclosure, could be exploited by competitors. A member of the subcommittee which conducted the hearings raised the issue again with respect to Small Business Administration loan applications :

I am thinking of a situation, for example, where the company couldn’t qualify for funds, and they have exposed their predicament to the world and it might give competitors unfair advantage to know their weak condition at that time. I wonder if there might be some cases where it might be in the public interest if all the facts about a company were not made public.

A representative of the Treasury Department added similar comments:

We can see no reason for changing the ground rules of American business so that any person can force the Government to reveal information which relates to the business activities of his competitor.

In each of these instances it was suggested that an exemption for “trade secrets” would avert the danger that valuable business information would be made public by agencies which had obtained it pursuant to statute or regulation. A representative of the Department of Justice endorsed this idea at length:

A second problem area lies in the large body of the Government’s information involving private business data and trade secrets, the disclosure of which could severely damage individual enterprise and cause widespread disruption of the channels of commerce. Much of this information is volunteered by employers, merchants, manufacturers, carriers, exporters, and other businessmen and professional people for purposes of market news services, labor and wage statistics, commercial reports, and other Government services which are considered useful to the cooperating reporters, the public and the agencies. Perhaps the greater part of such information is exacted, by statute, in the course of necessary regulatory or other governmental functions.
Again, not only as a matter of fairness, but as a matter of right, and as a matter basic to our free enterprise system, private business information should be afforded appropriate protection, at least from competitors.

A particulary significant aspect of the latter statement is its recognition of a twofold justification for the exemption of commercial material: (1) encouraging cooperation by those who are not obliged to provide information to the government and (2) protecting the rights of those who must.

After the hearings, the bill was reported with amendments, one of which added the following exemption:

. trade secrets and other information obtained from the public and customarily privileged or confidential ....

S.Rep.No. 1219, 88th Cong., 2d Sess. 2 (1964). Although the bill passed the Senate, Congress adjourned before the House of Representatives had completed action. The bill was reintroduced in the Senate in the following session with only two changes in the fourth exemption:

. trade secrets and commercial or financial information obtained from the public and privileged or confidential . . . .

This version substitutes the words “commercial or financial” for the word “other” and deletes the word “customarily.” No explanation was given for either change. During hearings on this bill, the question was again raised whether businessmen would be protected against disclosure of commercial or financial information obtained by the Government pursuant to administrative regulation. A witness testified that the Rural Electrification Administration requires detailed “financial, economic and technical” information from applicants under its loan program. Public release of this material, it was said, would provide an unfair advantage to a borrower’s competitors. In reply, a member of the subcommittee stated: “Well, there is a specific exemption in here to cover that point, and I do not think anybody has any intention that this material be made public.” After the hearings, the bill was reported with no significant amendment of the fourth exemption. The explanation of the fourth exemption was ientieal to that appearing in the Report on the previous bill except for the following significant addition:

Specifically [the exemption] would include any commercial, technical, and financial data, submitted by an applicant or a borrower to a lending agency in connection with any loan application or loan.

S.Rep.No. 813, 89th Cong., 1st Sess. 9 (1965). This history firmly supports the inference that section 552(b)(4) is intended for the benefit of persons who supply information as well as the agencies which gather it.

To summarize, commercial or financial matter is “confidential” for purposes of the exemption if disclosure of the information is likely to have either of the following effects: (1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.

II.

The financial information sought by appellant consists of audits conducted upon the books of companies operating concessions in national parks, annual financial statements filed by the concessioners with the National Park Service and other financial information. The district court concluded that this information was of the kind “that would not generally be made available for public perusal.” While we discern no error in this finding, we do not think that, by itself, it supports application of the financial information exemption. The district court must also inquire into the possibility that disclosure will harm legitimate private or governmental interests in secrecy.

On the record before us the Government has no apparent interest in preventing disclosure of the matter in question. Some, if not all, of the information is supplied to the Park Service pursuant to statute. Whether supplied pursuant to statute, regulation or some less formal mandate, however, it is clear that disclosure of this material to the Park Service is a mandatory condition of the concessioners’ right to operate in national parks. Since the concessioners are required to provide this financial information to the government, there is presumably no danger that public disclosure will impair the ability of the Government to obtain this information in the future.

As we have already explained, however, section 552(b)(4) may be applicable even though the Government itself has no interest in keeping the information secret. The exemption may be invoked for the benefit of the person who has provided commercial or financial information if it can be shown that public disclosure is likely to cause substantial harm to his competitive position. Appellant argues that such a showing cannot be made in this case because the concessioners are monopolists, protected from competition during the term of their contracts and enjoying a statutory preference over other bidders at renewal time. In other words, appellant argues that disclosure cannot impair the concessioners’ competitive position because they have no competition. While this argument is very compelling, we are reluctant to accept it without first providing appellee the opportunity to develop a fuller record in the district court. It might be shown, for example, that disclosure of information about concession activities will injure the concessioner’s competitive position in a non-concession enterprise. In that case disclosure would be improper. This matter is therefore remanded to the district court for the purpose of determining whether public disclosure of the information in question poses the likelihood of substantial harm to the competitive positions of the parties from whom it has been obtained. If the district court finds in the affirmative, then the information is “confidential” within the meaning of section 552(b)(4) and exempt from disclosure. If only some parts of the information are confidential, the district court may prevent inappropriate disclosures by excising from otherwise diselosable documents any matters which are confidential in the sense that the word has been construed in this opinion.

The judgment of the district court is reversed and this matter is remanded for further proceedings consistent with this opinion.

So ordered.

      . 5 U.S.C. § 552(b)(5) (1970). The Report of the Senate Committee on the Judiciary enunciates the purpose of this exemption: “It was argued, and with merit, that efficiency of Government would be greatly hampered if, with respect to legal and policy matters, all Government agencies were prematurely forced to ‘operate in a fishbowl.’ ” S.Rep.No. 813, 89th Cong., 1st Sess. 9 (1965).

      . 5 U.S.C. § 552(b)(6) (1970). As to this exemption the Senate Report states: “The phrase ‘clearly unwarranted invasion of personal privacy’ enunciates a policy that will involve a balancing of interests between tbe protection of an individual’s private affairs from unnecessary public scrutiny, and the preservation of the public’s right to governmental information.” S.Rep.No. 813, 89th Cong., 1st Sess. 9 (1965).

      . 110 Cong.Rec. 17667 (1964).

      . Id. S. 1666 contained the following version of the exemption: “. . . trade secrets and other information obtained from the public and customarily privileged or confidential . . . .” S.Rep.No. 1219, 88th Cong., 2d Sess. 2 (1964).

      . .The text of this bill, as introduced, appears in Hearings on S. 1666 Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm, on the Judiciary, 88th Cong., 1st Sess. 1-2 (1964) (hereafter, 1963 Hearings).

      . Id. at 89-90.

      . Id. at 102.

      . Id. at 174.

      . Id. at 91, 102, 187.

      . id. at 199.

      . 110 Cong.Rec. 17668 (1964).

      . S. 1160, 89tli Cong., 1st Sess. (1965). The full text of this bill appears in Hearings on S. 1160 Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm, on the Judiciary, .89th Cong., 1st Sess. 6-8 (1965).

      . Id. at 342.

      . Id. at 343.

      . The words “any person” were substituted for the words “the public” in order to convey the idea that “highly personal” information may be involved. S.Rep.No. 813, 89th Cong., 1st Sess. 1-2 (1965).

      . The House Report contains a similar statement: “It would include information customarily subject to the . . . lender-borrower privileges such as technical or financial data submitted by an applicant to a Government lending or loan guarantee agency.” H.Rep.No. 1497, 89th Cong., 2d Sess. 10 (1966), U.S.Code Cong. & Admin.News 1966, p. 2427.

      . We express no opinion as to whether other governmental interests are embodied in this exemption. Cf. 1963 Searings at 200 where the problems of compliance and program effectiveness are mentioned as governmental interests possibly served by this exemption.

      . National Parks and Conservation Ass’n v. Morton, 351 F.Supp. 404, 407 (D.D.C. 1972).

      . 16 U.S.C. § 20g (1970).

      . 16 U.S.C. § 20d (1970) establishes a preference in favor of the renewal of contracts or permits held by concessioners who have satisfactorily performed their obligations under prior contracts or permits.


author: WILKEY, Circuit Judge:

text:
    HAWAIIAN TELEPHONE COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and The United States of America, Respondents.
    No. 73-1018.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 25, 1974.
    Decided May 3, 1974.

      Thomas J. O’Reilly, for petitioner.
    Gregory M. Christopher, Counsel, F. C. C., with whom John W. Pettit, Gen. Counsel, Joseph A. Marino, Associate Gen. Counsel, F. C. C., and Howard E. Shapiro, Atty. Dept, of Justice, were on the brief, for respondents.
    Alan Y. Naftalin, Washington, D. C., for intervenor.
    Before ROBINSON, MacKINNON and WILKEY, Circuit Judges.
   WILKEY, Circuit Judge:

Hawaiian Telephone Company [HTC] seeks review of an order of the Federal Communications Commission granting authority to RCA Global Communications, Inc. [RCA] to provide private-line voice-only telephone service between the United States Mainland and Hawaii. We find that the FCC did not comply with its statutory mandate, and therefore remand to the FCC for further action in conformity with our opinion.

I. THE NATURE OF COMMUNICATIONS SERVICE TO HAWAII

At issue is the nature and scope of communications service to be available between the U. S. Mainland and Hawaii. Service is usually categorized as either voice-only, which is the traditional telephone service, or record, which includes telegraph, teletype, facsimile, data, alternate voice/data, and simultaneous voice/data. Both the record and voice-only service can utilize two systems of charges: the message system, where a charge is made for each use, or the leased channel system, where payment of a flat rate provides unlimited service.

On the Mainland to Hawaii route several carriers historically have provided a variety of service. Before 1955 AT&T provided voice-only service on the route; in contrast, RCA and two others provided record services. After a U.S. Defense Department request in 1955 for construction of an oceanic cable along the route, AT&T along with HTC agreed to construct the cable on the condition that they could also supply record service. The FCC granted AT&T permission, on the grounds that harm to RCA would be minor, as compared with great national defense needs. Apparently as a quid pro quo, RCA was licensed in 1959 to provide voice service to Hawaii on a leased channel basis; however, RCA did not utilize its license, but surrendered it in 1965.

In 1965 RCA was joined by ITT and Western Union International [WUI] in objecting to the Data-Phone service rencently introduced by AT&T in conjunction with HTC. RCA also sought withdrawal of permission for AT&T to provide record service, apparently in an attempt to create the competitive situation usually found elsewhere. Normally on international routes AT&T is limited to providing voice-only service and cannot compete with RCA for record service. The FCC denied RCA the relief sought from competition in record services.

RCA and ITT. petitioned 'the FCC in 1966 to expand their Datel service to make it competitive with AT&T and HTC’s Data-Phone. Under the originally authorized Datel service, voice communication was limited to cues such as those to start or stop transmission. RCA and ITT’s petitions to expand Datel to allow conversation as well as transmission of data were granted by the FCC.

Later in 1966 RCA sought authority from the FCC to lease and operate satellite channels from the Communications Satellite Corporation [COMSAT], While at first RCA only desired to use the satellite channels to provide service similar to that provided by radio and cable, RCA subsequently applied for permission to use the channels for leased channel voice-only service. This was a departure from RCA’s previous provi-, sion of service, and was opposed by HTC and AT&T. After comments by the interested carriers, the FCC authorized RCA temporarily to lease and operate the satellite channels, but limited to record type service. No permanent action was undertaken at that time.

In 1969 RCA petitioned for permanent approval of its satellite channel leases, to be used for both record and voice-only services, and requested additional satellite leases. Again HTC and AT&T objected, but no agency action occurred until 8 June 1972, when the Telegraph Committee of the FCC adopted a memorandum order granting RCA permanent authority to provide voice-only and record service via satellite facilities. HTC then sought review by the full FCC. On 13 November 1972 the FCC denied HTC’s application for review and affirmed the order of the Telegraph Committee. HTC then lodged an appeal pursuant to 47 U.S.C. § 402 challenging the FCC approval of RCA voice-only services.

II. THE STATUTORY REQUIREMENTS FOR FCC APPROVAL OF RCA’S NEW SERVICE

The issue before the court is whether the FCC has complied with statutory re-. quirements when it approved RCA’s application for voice-only service. We find that the FCC has not conformed to the requirement that it find the public convenience and necessity dictate the new service. We remand to the FCC for reconsideration and articulation of this most significant factor. In so doing, we make no suggestion whatsoever as to how we might find that the public interest might best be served.

The Communications Act of 1934, 47 U.S.C. § 214(a), requires that before a carrier undertakes to construct or operate a new line it must obtain from the FCC certification “that the present or future public conveniénce and necessity require or will require” the new service. The rules of the FCC regarding applications for certification carry forward the statutory mandate by requiring that applications include a “summary of the factors showing the public need for the proposed facilities,” and a description of current service and “reasons why existing facilities are inadequate.”

III. ACTION AND OPINION OF THE COMMISSION

In granting RCA certification the FCC necessarily approved RCA’s application, which nowhere specified or summarized factors demonstrating public need for additional services. RCA simply noted on its amended application that HTC and AT&T had applied for satellite facilities to complement their cable voice-only service to Hawaii, and that RCA also wished to be enabled to provide leased channel voice-only service via satellite.

Not surprisingly, AT&T and HTC opposed RCA’s application. In its reply RCA noted the exclusive authority of those two carriers to furnish leased channel voice service via cable, and suggested the exclusivity should not be extended to satellite service. RCA suggested that in view of its “historical role” and “equity” it should be permitted to provide the new service. RCA’s update of its application, which was filed in May 1969, did not add any statement regarding public necessity.

The tenor of the RCA application, approved by the FCC, and the subsequent exchange of views illustrate a major defect we discern in the Commission’s unanalytical approach to its responsibilities. Not only did the FCC place a value unsupported by the record on the virtues of competition, but the FCC really focused on equalizing the position of competitors. This is true in the FCC action made the subject of this review; it is also apparent in the whole history of Hawaii-Mainland communications detailed above. We shall see more of this below.

The Telegraph Committee approved RCA’s application for satellite voice service on 9 June 1972. Its memorandum opinion recited the points made by the various carriers and noted that, unlike the case of other international routes, competition concerning record service on the Hawaii routes existed between RCA and other international record carriers on the one hand, and AT&T and HTC on the other hand. Citing ITT World Communications, Inc., the Committee concluded it would “be equitable and in the public interest” to allow RCA to compete with AT&T and HTC on leased channel voice service. This conclusion, the Committee felt, was supported by the “past precedent” of an authorized voice-only service via radio which had been granted to RCA but never utilized, and by the fact that the economic impact on AT&T and HTC would be minimal. The Committee then concluded that RCA “has shown a need for the facilities” and that approval of the application “will serve the present and future public convenience and necessity,” and granted RCA the certificate.

Upon review the FCC affirmed the Telegraph Committee grant. The Commission relied on its decision in ITT World Communications, Inc., in which it allowed ITT to provide Datel to Hawaii because of the previously favored position of AT&T and HTC in providing Data-Phone. Since the Telegraph Committee opinion followed the “policy and precedent” of the ITT decision, the Commission concluded it would be “equitable” to give RCA the certificate desired, absent a showing of serious adverse effect on HTC and AT&T.

The Commission noted the relative advantage of AT&T and HTC by being able to provide both record and voice service. It believed that, competition was “reasonably feasible” in the voice-only market, and stated,

Insofar as public benefit is concerned, it is sufficient to note that wherever competition has been introduced we have found considerable benefit in the way of better service, responsiveness to public demand, and generally lower rates with substantial increases in volume and often profitability. We anticipate that a similar benefit may appear in the instant case.

Then, after determining that the effect on HTC revenue would be minimal, the FCC briefly referred again to the public interest:

even on HTC’s own ground of comparison [re revenue loss], competition is reasonably feasible and as noted above, our experience with this area leads us to believe that it can benefit the public in both charges and quality of service.

Finally, the Commission noted

a further public benefit — that stemming from the viability of the record carriers which we sought to protect

This then is the sum total of Commission attention given to public necessity and convenience. In effect, the Commission’s analysis proceeds as follows:

(1) Competition is reasonably feasible, because figures show that HTC will not lose much revenue.

(2) Whenever competition has been introduced, the FCC has found public benefit through better service, lower rates, etc.

(3) Such a benefit is anticipated here.

(4) And this will help the viability of record carriers.

(5) Therefore the FCC finds the public convenience and necessity standard has been met.

IV. THE COMMISSION’S ACTION AND SUPPORTING RATIONALE DOES NOT MEET THE STATUTORY STANDARD

Looming large in the Commission’s rationale, indeed, undeniably the key factor in its decision, is competition. Competition as a factor might have some relevance to the FCC decision, if competition had been shown to be of benefit to the public on the communication routes in question. Yet it is all too embarrassingly apparent that the Commission has been thinking about competition, not in terms primarily as to its benefit to the public, but specifically with the objective of equalizing competition among competitors.

This is not the objective or role assigned by law to the Federal Communications Commission. As a result of focusing first on competitors, next on competition, and then on the public interest, the FCC has given scant attention to the question of public convenience and necessity, and therefore has not met its statutorily imposed duty.

Its finding of public convenience and necessity essentially is based on two factors: (1) the history of the route and relative competitive positions of the carriers; and (2) the benefits of competition in general. The first factor is of little relevance in determining whether the public interest test is satisfied. The second factor has not been particularized beyond a general assertion by the FCC. We remand to the FCC so that they can consider the public interest perhaps to be served by competition on this particular route.

The statutory standard of public convenience and necessity has been explicated by the Supreme Court in the seminal case of FCC v. RCA Communications, Inc. In the opinion for the Court, Justice Frankfurter succinctly put the Commission’s duty:

In the nature of things, the possible benefits of competition do not lend themselves to detailed forecast, but the Commission must at least warrant, as it were, that competition would serve some beneficial purpose such as maintaining good service and improving it. Although we think RCAC’s contention that an applicant must demonstrate tangible benefits is asking too much, it is not too much to ask that there be ground for reasonable expectation that competition may have some beneficial effect. Merely to assume that competition is bound, to be of advantage, in an industry so regulated and so largely closed as this one, is not enough.

The Commission has not fulfilled the limited requirements set forth in RCA; it has done little more than assume that competition is likely to be advantageous. The “evidence” that is proffered by the Commission to support this assumption is not conclusive or even relevant. The court recognizes that the history of the traffic from the U. S. Mainland to Hawaii demonstrates that this route has been an exceptional one, in which competition has been allowed in several areas where ordinarily it is not. However, the statute says plainly that the test for certification of new lines is the public benefit ; the test is not whether competition has been allowed in the past, nor is the test whether the balance of equities and opportunities among competing carriers suggests a change.

When the FCC considers an application for certification of a new line, it must start from the situation as it then exists, and must apply the statutory standard to determine whether indeed the public convenience and necessity requires more or better service. If it determines that more or additional competitive service would be in the public interest, then it can consider how much added service is necessary, and finally to whom the opportunity for providing service should be awarded. In this latter determination the Commission can balance equities and opportunities among the various carriers. The initial question for the Commission, however, must be whether the public interest requires more or different service.

Competition is without doubt a factor to be weighed in determining where the public interest lies. However, the FCC cannot merely assert the benefits of competition in an abstract, sterile way. The Commission has done little more than it did in the RCA case, where its opinion states,

Competition can generally be expected to provide a powerful incentive for the rendition of better service at lower cost. Those seeking the patronage of customers are spurred on to install the latest developments in the art in order to improve their services or products and in order to enable them to reduce expenses and thereby lower their rates or prices. The benefits to be derived from competition should, therefore, not be lightly discarded.

The Supreme Court found this treatment inadequate, noting,

Surely one cannot conclude from this bare statement that the Commission, whatever undisclosed awareness it may have of the problem, has sufficiently laid bare its mind to enable us to perform our reviewing function. And it is certainly not for us to say, at least in the first instance, that authorization would be desirable in these circumstances.

The whole theory of licensing and regulation by government agencies is based on the belief that competition cannot be trusted to do the job of regulation in that particular industry which competition does in other sectors of the economy. Without in any way derogating the merits of the competitive free enterprise system in the economy as a whole, we cannot accept the action of the FCC here in a tightly regulated industry, supported by an opinion which does no more than automatically equate the public interest with additional competition. Of course, we recognize that the FCC may draw upon competition “for complementary or auxiliary support.”

Y. REMAND

We remand to the Commission for reconsideration of its decision. We imply no inference as to what that decision should be. But if on reconsideration its conclusion remains the same, it must “at least warrant” that competition will serve some beneficial public interest here. While the Commission need not make “specific findings of tangible benefit” it must go beyond its bare assertion of benefit. It must provide the basic facts which lead it to reach its conclusion of public benefit from the decision. If such basic facts have not been developed in the prior agency proceedings and record, then hearings or supplemental inquiry may be necessary

Following the Supreme Court in RCA, supra, and other decisions, this court has long required that agencies present sufficient support for their conclusions in order that the court can properly review their decision. The court, and the parties, must not be left with post hoc rationalizations by counsel as the prime authority for the Commission decision.

Therefore, we remand the ease to the FCC for prompt reconsideration and further articulation of its decision. We direct the FCC to complete such further work as is necessary and file its opinion within one hundred and twenty days of the date of this decision. Further review, if any, by this court will await the initiative of any party considering itself aggrieved by the forthcoming Commission decision. In the event of an appeal, this panel retains jurisdiction.

So ordered.

      . American Telephone & Telegraph Co., 8 Pike & Fisher RR 1217 (1955).

      . AT&T-ROA Communications, Inc., 27 F.C. C. 271, 322 (1959).

      . See RCA Global Communications, Inc., 37 F.C.C.2d 1043, 1044 (1972).

      . Data-Phone service involves transmission of data over normal message telephone facilities.

      . American Telephone & Telegraph, 38 F.C.C. 1222 and 1 F.C.C.2d 374 (1965). See RCA Global Communications, Inc., 37 F.C.C. at 1046-47.

      . ITT World Communications, Inc., 2 F.C.C. 2d 573 (1966).

      . RCA Global Communications, Inc., 37 F.C. C.2d 1043.

      . 47 C.F.R. § 63.01 (Z).

      . 47 C.F.R. § 63.01(a).

      . See Joint Appendix at 8-10. The original application did not deal with voice-only service, but simply sought satellite rather than cable transmissions, of types of services already approved. See application in Joint App. at 1-7. RCA did mention public interest once: it concluded that individual television transmission would be better for the public than rotation television transmission. ROA also noted that there was a shortage of cable circuits vis-il-vis demand. This latter factor helps to establish a need for satellite service in general.

      . See Joint App. at 22-23.

      . 2 F.C.C.2d 573 (1966).

      . Joint App. at 47.

      . Ibid.

      . Joint App. at 89, 37 F.C.C.2d at 1047.

      . Joint App. at 90, 37 F.C.C.2d at 1048-49 (citations omitted).

      . Joint App. at 91, 37 F.C.C.2d at 1049.

      . Joint App. at 92, 37 F.C.C.2d at 1049.

      . 346 U.S. 86, 73 S.Ct. 998, 97 L.Ed. 1470 (1953).

      . Id. at 96-97, 73 S.Ct. at 1005 (emphasis supplied; citation omitted).

      . See FCC v. RCA Communications, Inc. 346 U.S. at 94, 73 S.Ct. 998.

      . Ibid.

      . See id. at 94-95, n. 6, 73 S.Ct. at 1004.

      . Id. at 95, n. 6, 73 S.Ct. at 1004.

      . See Mackay Radio & Telegraph Co. v. FCC, 68 U.S.App.D.C. 336, 97 F.2d 641 (1938).

      . FCC v. RCA Communications, Inc., 346 U.S. at 93, 73 S.Ct. 998.

      . See text at n. 20 supra.

      . No evidentiary hearings were held by the FCC. See HTC Brief at 5.

      . As we wrote in Public Service Commission of New York v. FPC, 141 U.S.App.D.C. 174, 177, 436 F.2d 904, 907 (1970),
      The Commission’s decision and the rationale supporting it may be entirely valid, but the Commission cannot take refuge in its alleged expertise in this field, when it does not set forth convincing reasons for its determination in sufficient detail to allow the validity of those reasons to be critically examined by the parties adversely affected and to allow this Court to pass on the reasonableness of the Commission’s conclusions.
      Once this is done, the action of the Commission can then, if necessary, be properly reviewed.

        See also Airline Pilots Association, International v. CAB, 154 U.S.App.D.C. 316, 321-322, 475 F.2d 900, 905-906 (1973); Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971); WAIT Radio v. FCC, 135 U.S.App.D.C. 317, 320, 418 F.2d 1153, 1156 (1969). See SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943).

      . See NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438, 442-443, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965); National Air Carrier Association v. CAB, 141 U.S.App.D.C. 31, 41, 436 F.2d 185, 195 (1970).