author: PER CURIAM:

text:
    DIENER’S, INC., et al., Petitioners, v. FEDERAL TRADE COMMISSION, Respondent.
    No. 73-1184.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 22, 1974.
    Decided March 22, 1974.
    Jacob A. Stein, Washington, D. C., for petitioners.
    Robert E. Duncan, Atty., F.T.C., with whom Harold D. Rhynedance, Jr., Asst. Gen. Counsel, Washington, D. C., was on the brief, for respondent.

      Before MeGOWAN and MacKINNON, Circuit Judges, and CHRISTENSEN , United States Senior District Judge for the District of Utah.

       Sitting by designation pursuant to Title 28, U.S.Oode, Section 294(d).

   PER CURIAM:

This is a petition to review a Federal Trade Commission cease and desist order directed against certain advertising practices found by the Commission to violate Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, and Sections 4(a) and (c) of the Textile Fiber Products Identification Act, 15 U.S.C. § 70b(a) and (c). We have examined petitioners’ contentions carefully and find that they establish no basis for setting aside the Commission’s order. We are persuaded, however, that one part of the remedial order is cast in inappropriately absolute terms, and we have accordingly modified that portion to correspond to the purpose and effect that the Commission has represented to us, both in its brief and at oral argument, it intended. We affirm the Commission’s order, as modified by this court, and grant enforcement.

Petitioners first assert that the Commission improperly fused the roles of judge and prosecutor in the manner and degree to which it relied on the testimony of an FTC investigator in determining the existence of the asserted violations. We disagree. Although a point does exist at which a blending of prosecutorial and adjudicative functions will deprive a party of a fair administrative hearing, see, e.g., Amos Treat & Co. v. SEC, 113 U.S.App.D.C. 100, 306 F.2d 260 (1962), it does not appear to us that that point has been reached in this case. The investigator’s testimony did not drift into a representation by him of the ultimate validity of the charges. Moreover, the Commission expressed an awareness of the potential problems of accepting its investigator’s testimony, and was careful to assess this evidence in the proper light. Having examined the record and the opinions of the Administrative Law Judge and the Commission, we find no indication that petitioners were denied a fair administrative adjudication. Cf. Kennecott Copper Corp. v. FTC, 467 F.2d 67, 79 (10th Cir.), cert, denied,-U.S.-, 94 S.Ct. 1617, 40 L.Ed.2d 114 (1974); FTC v. Cinderella Career and Finishing Schools, 131 U.S.App.D.C. 331, 404 F.2d 1308, 1315 (1968).

Petitioners also claim that the Commission failed to articulate a basis for holding that entry of its order is in the public interest. To the extent that this claim rests on an assertion that the Commission order is not based on substantial evidence of record, it is without merit. Equally unpersuasive is petitioners’ claim that the proven violations occurred too far in the past to justify an order aimed at present and future practices. Clearly the Commission is not powerless to issue a cease and desist order on the basis of past practices that have not been shown to have continued to the present. See Giant Food, Inc. v. FTC, 116 U.S.App.D.C. 227, 322 F.2d 977, 986 (1963), cert, dismissed, 376 U.S. 967, 84 S.Ct. 1121, 12 L.Ed.2d 82 (1964), and cases cited therein. And even assuming the existence of a point at which past practices must be considered too dated to support an FTC cease and desist order, we do not find the time span between the occurrence of the proven violations and the issuance of this order to present any significant problem.

One assertion of error by petitioners does have merit. Petitioners assert that the Commission order subjects them to a competitive handicap. Pointing out that the Commission order against their competitor, Giant Food, Inc., allows Giant to make savings claims in relation to either the difference between Giant’s previous and present prices or in relation to differences between Giant’s prices and, those of its competitors, petitioners insist that the Commission has prevented them from making the full range of savings claims that Giant’s order permits. In response, the Commission asserts that a reading of the order in its entirety reveals that it does not preclude claims of savings over competitors’ prices, so long as such representations satisfy the basic requirements of paragraph four and five governing “trade area savings” claims. The Commission further maintains that petitioners did not voice any similar objection in the proceedings before it, and that the matter is not deserving of judicial attention since, in any event, petitioners can seek clarification by raising the matter with the Commission when they file their compliance reports.

We do not feel that approval of the order in its present form is a prudential resolution of this issue. Examination of the entire order does suggest that perhaps petitioners may be unduly sensitive to the language of certain parts. Nonetheless, portions of the order do speak in sweeping terms and may leave petitioners justifiably uncertain as to what they can, and what they cannot, do. We think that an ordering provision should be as free of ambiguity as possible. Thus we feel it appropriate to exercise our power of appellate modification, 15 U.S.C. § 45(d), to recast the order in more specific terms corresponding with the interpretations of the present order that the Commission has offered to this court. While recognizing that our modification may in some respects compound the already existing redundancy of some of its provisions, a redundant cease and desist order is, surely, preferable to an ambiguous one.

Petitioners have offered four modifications of the order which, they assert, are required to correct its deficiencies. We have examined petitioners’ proposed modifications in light of the nature of their objections, as well as the evidence of record concerning the nature and scope of their violations, and have concluded that our modification of paragraph two of the order will adequately resolve the existing ambiguities. Accordingly, we modify paragraph two to read:

Using the words “Save” or “Savings” or any other word or words of similar import or meaning in conjunction with a stated dollar or percentage amount of savings between respondents’ stated price and any other price used for comparison with that price, unless the stated dollar or percentage amount of savings actually represents the difference between the offering price and the actual price at which a substantial number of principal retail outlets in the trade area regularly sell or offer the merchandise for sale or between the offering price and the actual bona fide price at which such merchandise had been sold or offered for sale on a regular basis to the public by the respondents for a reasonably substantial period of time in the recent, regular course of their business. [Modifications in emphasis]

We reject petitioners’ other proposed modifications. Petitioners’ suggested alteration of paragraph 5(a) is unnecessary, particularly in light of our modification of the second paragraph. Paragraph 5(a) is, by its terms, limited to savings claims between “respondents’ stated price and respondents’ former price,” and, as such, is both readily understandable and warranted by the evidence of record. Petitioners’ suggested modifications to the first and third paragraphs are both unnecessary and unsound.

In all other respects, the order of the Commission is affirmed and its enforcement, as modified by this court, is granted.

It is so ordered.

      . The relevant portion of the order against Giant Food, Inc. prevents Giant from: Representing in any manner that by purchasing any of its merchandise, customers are afforded savings amounting to the difference between respondent’s stated price and any other price used for comparison with that price, unless a substantial number of the principal retail outlets in the trade area regularly offer the merchandise for sale at the compared price or some higher price or unless respondent has offered such merchandise for sale at the compared price in good faith for a reasonably substantial period of time in the regular recent course of business.
      In re Giant Food, Inc., Order Making Final Modifications of Order to Cease and Desist, 66 F.T.C. 476, 478-79 (1964).


source: Caselaw Access Project

author: LEVENTHAL, Circuit Judge.

license: Public Domain

text:
    Richard L. GAYER v. James R. SCHLESINGER, Secretary of Defense, et al., Appellants. Otto H. ULRICH, Jr. v. James R. SCHLESINGER, Secretary of Defense, et al., Appellants. Benning WENTWORTH v. James R. SCHLESINGER, Secretary of Defense, et al., Appellants.
    Nos. 71-1934, 71-1935 and 72-1820.
    United States Court of Appeals, District of Columbia Circuit.
    April 9, 1974.
   LEVENTHAL, Circuit Judge.

ORDER

On consideration of appellants’ motions for clarification or correction of the opinion, and of appellees’ opposition filed with respect thereto, it is

Ordered that my concurring opinion filed herein on November 15, 1973, 160 U.S.App.D.C. -, 490 F.2d 740, is here-

by amended as follows:

(Omit first sentence, p. 27 [first sentence of first full paragraph in second column of page 755, 490 F.2d] — add following to fn. 4 [page 755 of 490 F.2d]), In accordance with appellants’ motion dated January 3, 1974, for clarification of this concurring opinion, it is noted that the Corporation Counsel, C. Francis

Murphy, sent a letter to the United States Attorney, Harold H. Titus, Jr., dated March 15, 1973, stating that the stipulation had been entered into without proper authorization to the assistant involved and without consultation with the United States Attorney; that the statements as to the proper construction of the sodomy statute were improvident; and concurring with the United States Attorney that the intervening decisions in Velez-Lozano v. INS, 150 U.S.App.D. C. 214, 463 F.2d 1305, 1307 (1972) and Harris v. United States, 293 A.2d 851, 855 (D.C.App.1972) establish the proper interpretation of the statute. Mr. Murphy stated that “we think no good purpose would be served by our now moving the Court to vacate the stipulation. It appears that the best course is for all concerned to regard this unauthorized stipulation as having no force or effect beyond the particular case in which it was improvidently entered.” He concluded that his sending of a copy of his letter to Jeffrey M. Alprin, chief counsel for the D.C. police department, was “for informational purposes only. We do not mean to affect in any way the Metropolitan Police Department’s administration of its law-enforcement responsibilities.”

We further take note that the Velez-Lozano decision concerned Virginia law, with the one-sentence reference to D.C. law being bare dictum. The Harris decision was an affirmance of a conviction for keeping a bawdy or disorderly house —a premises resorted to for homosexual activities, with payments to the operator of the house of a membership fee plus a fee for each visit. Such an offense ob-' viously involves special considerations. Judge Kern, concurring, pointed out that affirmance of the conviction was not inconsistent with the then-announced policy of the District of Columbia government, not to prosecute private consensual homosexual acts between adults (11 Crim.L.Rep. 2252), and described that policy as one that “pertains only to conduct in the privacy of the home.”


author: TAMM, Circuit Judge:

text:
    LOCAL UNION NO. 715, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1996.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 6, 1973.
    Decided March 29, 1974.
    George Kaufmann. Washington D. C., with whom Laurence J. Cohen, Washington, D. C., was on the brief, for petitioner.
    Patrick Hardin. Associate Gen. Counsel. N.L.R.B., with whom John S. Irving, Deputy Gen. Counsel, Elliott Moore, Acting Asst. Gen. Counsel, and Joseph E. Mayer, Atty., N.L.R.B., were on the brief,- for respondent.
    Before McGOWAN, TAMM and MaeKINNON, Circuit Judges.
   TAMM, Circuit Judge:

In Associated Press v. NLRB, 160 U. S.App.D.C.-, 492 F.2d 662 (1974), we endorsed the Labor Board’s Spielberg doctrine. The latter decision established the principle that the Board may, in appropriate cases, decline to entertain an unfair labor practice complaint arising from a dispute which has already been arbitrated. Spielberg Manufacturing Co., 112 NLRB 1080, 1082 (1955). The petition now before us requests that an order of the Board purporting to apply the Spielberg doctrine be set aside. The petition is granted in part and denied in part.

The petitioner herein, Local 715, IBEW, charges that the employer, a radio station operator, violated its duty to bargain collectively by unilaterally changing the working conditions of its employees. Specifically, the union complains of the employer’s decision in 1968 to initiate full time “combo” operation. This term denotes the assignment of a single employee as both announcer and engineer — a method of operation which had previously been used only during the night shift. The change was apparently occasioned by the station’s shift from a foreign language format to a country-western format. The union argues that daytime “combo” operation was not permitted under its contract. The company takes the opposite position. The matter was submitted to arbitration in 1969 and an award was issued in January, 1970, sustaining the union’s position. When the company refused to comply with the award, the union filed the instant unfair labor practice charges. On the basis of these charges, the Board’s General Counsel issued a complaint against the company alleging a unilateral change of contract terms and employment conditions regarding “combo” operation — a violation of sections 8(a)(1), (5) and 8(d) of the National Labor Relations Act, 29 U.S.C. § 158 (1970). The trial examiner concluded that the company’s conduct violated the Act and recommended a cease and desist order and various other relief. The Board did not adopt the recommendation, but dismissed the complaint. Citing the Spielberg decision, the Board concluded that deferral to the arbitration award was proper despite the company’s refusal to comply with it. Mal-rite of Wisconsin, Inc., 198 NLRB No. 3 (1972).

At the outset we wish to address the petitioner’s interpretation of the Spielberg deferral doctrine. The union urges a narrow reading. It argues that Spielberg simply requires the Board to accept the arbitrator’s construction of the disputed contract provisions, but does not relieve the Board of its duty to remedy unfair labor practices related to the dispute. The union reasons that statutory violations (unfair labor practices) — unlike mere contractual breaches — affect public interests which can only be vindicated through Board remedies.

The petitioner misapprehends the Spielberg rule. The Board has made it clear that, when deferral is appropriate, the arbitration award becomes the sole remedy for both contractual and statutory violations:

If complete effectuation of the Federal policy is to be achieved, we firmly believe that the Board, which is entrusted with the administration of one of the many facets of national labor policy, should give hospitable acceptance to the arbitral process as “part and parcel of the collective bargaining process itself,” and voluntarily withhold its undoubted authority to adjudicate alleged unfair labor practice charges involving the same subject matter, unless it clearly appears that the arbitration proceedings were tainted by fraud, collusion, unfairness, or serious procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act.

International Harvester Co., 138 NLRB 923, 927 (1962), aff’d sub nom. Ramsey v. NLRB, 327 F.2d 784 (7th Cir.), cert, denied, 377 U.S. 1003, 84 S.Ct. 1938, 12 L.Ed.2d 1052 (1964) (footnote omitted, emphasis added). In the absence of procedural irregularity or statutory repug-nancy, therefore, the Board is free to adopt the arbitral award as a complete remedy for unfair labor practices related to the contractual dispute, even though the Board has exclusive authority to adjudicate unfair labor practice charges. Contrary to the union’s eon-tentions here, the Board is not obliged to entertain the unfair labor practice charges after a proper deferral.

Having stated our understanding of the Spielberg decision, it remains for us to determine whether the doctrine was properly applied in the present case. The Spielberg opinion itself established three prerequisites for deferral to an arbitration award. Deferral is indicated if the arbitration proceedings were fair and regular, all parties agreed to be bound by the award and the decision of the panel is not clearly repugnant to the purposes and policies of the National Labor Relations Act. Both the trial examiner and the Board agree that the award in this case satisfies all three conditions. The trial examiner nonetheless declined to honor the arbitration award because of the employer’s refusal to comply with it. The Board reversed the examiner and dismissed the complaint, stating that the Company’s failure to obey the arbitration award was irrelevant:

In its formulation of the Spielberg standards the Board did not contemplate its assumption of the functions of a tribunal for the determination of arbitration appeals and the enforcement of arbitration awards. If the Board’s deference to arbitration is to be meaningful it must encompass the entire arbitration process, including the enforcement of arbitral awards. It appears that the desirable objective of encouraging the voluntary settlement of labor disputes through the arbitration process will best be served by requiring that parties to a dispute, after electing to resort to arbitration, proceed to the usual conclusion of that process — jucicial [sic] enforcement — • rather than permitting them to invoke the intervention of the Board.
Indeed, direct court enforcement of arbitrator’s awards can provide more prompt and effective action than a procedure which requires a second trial before one of our Trial Examiners, an appeal to this Board, and only then a court proceeding which can lead to an enforceable decree. Surely immediate access to the court is to be preferred over this long administrative route, and this is the course we are here encouraging these and future disputants to follow. Accordingly, we shall dismiss the complaint in its entirety.

198 NLRB No. 3 at 4, 5 (1972).

We agree with the Board that the employer’s recalcitrance following arbitration does not preclude deferral to the award. The policy established by Spielberg is to withhold Board processes where private methods of settlement are adequate. In this case, the arbitration process has foundered, but it has not proven inadequate. The union may yet obtain compliance with the award by means of a suit for its enforcement. As long as the remedy of judicial enforcement is available, the force of the Spielberg doctrine is not diminished by one party’s disregard for the arbitral award. The Board acted within its discretion, therefore, in insisting that the union pursue the judicial remedy.

The union raises one further objection to the Board’s order. It concerns the charge that the employer bargained individually with members of the union — an unfair labor practice distinct from the unilateral change of working conditions which allegedly occurred with the institution of full-time “combo” operation. The trial examiner found that the employer had dealt individually with five of its engineers regarding “combo” assignments. As to two of these, however, he concluded that the union’s charges had not been timely filed. This ruling is not disputed here. As to the remaining three employees, the examiner ruled that the employer had committed an unfair labor practice in violation of sections 8(a)(5) and (1) of the National Labor Relations Act.

As we have already observed, the Board rejected the trial examiner’s decision and dismissed the entire complaint, citing Spielberg. The Board’s opinion does not discuss the individual bargaining problem, but it is apparent that deferral with respect to that issue was erroneous. All three of the individual bargaining charges which were sustained by the trial examiner relate to events which occurred after the arbitration hearing. Inasmuch as the arbitrators could not have considered these transactions, it is difficult to agree with the Board’s conclusion that judicial enforcement of the award will provide “full remedial relief.” In fact, this reasoning appears to contradict the Board’s own decisions to the effect that deferral is not appropriate with respect to an issue not considered by the arbitration panel. Raytheon Co., 140 NLRB 883, 885 (1963), set aside on other grounds, 326 F.2d 471 (1st Cir. 1964); Monsanto Chemical Co., 130 NLRB 1097 (1961). The gist of these decisions and others is that deferral on an issue not considered by the arbitrator cannot be justified by the policy which underlies the doctrine of deferral:

It manifestly could not encourage the voluntary settlement of disputes or effectuate the policies and purposes of the Act to give binding effect in an unfair labor practice proceeding to an arbitration award which does not purport to resolve the unfair labor practice issue which was before the arbitrator and which is the very issue the Board is called upon to decide in the proceeding before it.

Monsanto Chemical Co., 130 NLRB at 1099.

The petition is granted in part and this matter is remanded to the Board for further consideration of the trial examiner’s conclusions with respect to individual bargaining. In all other respects the petition is denied.

So ordered.

      . The collective bargaining agreement contained the following provisions for the resolution of contract disputes (J.A. at 123) :
      Section 2:01. All questions, disputes, or grievances as to the interpretation, application, or performance of the terms of this agreement shall first be taken up for adjustment between the Employer and the Steward of the Union. In the event no satisfactory settlement of the issue is reached, it shall then be considered by the Employer and an authorized representative or representatives of the Union, and should they fail to adjust the matter, either party may require arbitration of such issue by giving written notice to the other.
      Section 2 :02. Any matter that is not adjusted by the Employer and the Union, as provided in Section 2:01 of this Article, shall be referred to a Board of Arbitration consisting of one representative of the Employer, one representative of the Union, and a third member to be selected by these two representatives, who shall be Chairman. In the event the two representatives of the Board of Arbitration fail to select the third member within seven days, the Director of the Federal Mediation and Conciliation Service will be requested to appoint the third member. The majority decision of the Board shall be final and binding on both parties. Each party shall defray .the expenses of its representative on the Board, and the fees and expenses of the third member shall be borne equally by the parties.

      . The distinction between contractual and statutory rights was found to be significant in a recent decision concerning the effect of arbitration awards upon actions under Title VII of the Civil Rights Act of 1964, 42 U. S.C. § 2000e (1970). Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974).

      . Trial Examiner’s Decision at 6, J.A. at 22; Malrite of Wisconsin, Inc., 198 NLRB No. 3 at 3 (1972).

      . The union argued that judicial enforcement of the award is precluded by the vagueness of the award and the mootness of the controversy following expiration of the contract in question. These contentions can only be tested in a suit for enforcement of the award. The Board properly assumed that judicial enforcement was available in the absence of a judicial ruling to the contrary.

      . In a Collyer (pre-arbitral) context, of course, the company’s refusal to comply with a past award would liave an entirely different significance. Such conduct might well suggest that pre-arbitral deferral is not likely to advance the federal policy favoring voluntary settlement of labor disputes. See Local Union No. 2188, IBEW v. NLRB, 161 U.S. App.D.C. -, at-, 494 F.2d 1087, at 1090 (1974).

      . 198 NLRB No. 3 at 5.


author: PER CURIAM: LEVENTHAL, Circuit Judge,

text:
    MICHIGAN POWER COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Municipal Defense Group, Northern Natural Gas Company, In-tervenors.
    No. 71-1752.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 20, 1972.
    Decided March 25, 1974.
    Rehearing Denied May 3, 1974.
    Leventhal, Circuit Judge, did not participate in the disposition.

      Reuben Goldberg, Washington, D.C., with whom Lee J. Steffen, Jr., Washington, D.C., was on the brief, for petitioner.
    George W. McHenry, Jr., First Asst. Sol., F. P. C., with whom Gordon Gooch, Gen. Counsel, Leo E. Forquer, Sol., and J. Richard Tiano, Deputy Sol., F. P. C., at the time the brief was filed, were on the brief, for respondent.
    George J. Meiburger, Washington, D. C., with whom Walter E. Gallagher, Washington, D.C., and F. Vison Roach, Omaha, Neb., were on the brief for in-tervenor, Northern Natural Gas Co.
    Charles F. Wheatley, Jr., William T. Miller, and Jerome C. Muys, Washington, D.C., were on the brief for interve-nor, Municipal Defense Group.
    Before LEVENTHAL, ROBINSON and ROBB, Circuit Judges.
   PER CURIAM:

Petitioner, Michigan Power Company, operates a natural gas distribution system in the Upper Peninsula of Michigan and purchases all its natural gas from Intervenor, Northern Natural Gas Company (Northern). Although this appeal challeges orders entered in Docket No. RP71-107 which allowed Northern to file revisions of its gas tariff (tariff), the genesis of the dispute was in Docket No. RP71-89.

In January 1971 Northern, pursuant to section 4 of the Natural Gas Act (Act), 15 U.S.C. § 717c (1970), filed in Docket No. RP71-89 a proposal to amend the curtailment provisions of its tariff. Under this tariff Michigan Power had the right to purchase a contract demand of 25,188 Mcf of natural gas per day subject to only two curtailment provisions. The first curtailment provision gave Northern the right to reduce deliveries of gas below Michigan Power’s contract demand during the months of April through October, but only to the extent necessary to perform specified maintenance and construction work and only after Northern had first discontinued deliveries of gas to its direct inter-ruptible customers. Northern Natural Gas Company, FPC Gas Tariff, Third Revised Volume No. 1, Original Sheet No. 59, General Terms and Conditions, Section 9.1. The second curtailment provision gave Northern the right to require Michigan Power to reduce or discontinue its purchases of gas for resale to large volume commercial and industrial customers whenever, because of conditions beyond the control of Northern, the volume of gas available for delivery by Northern, after discontinuance of deliveries to Northern’s direct interrup-tible customers, was not adequate to supply all contract demand requirements of all wholesale purchasers. Northern Natural Gas Company, FPC Gas Tariff, Third Revised Volume No. 1, Original Sheet No. 59, General Terms and Conditions, Section 9.2. Northern’s proposed revisions affected both section 9.1 and section 9.2 of the tariff.

The proposed revisions removed the contract provision limiting Northern’s right to reduce gas deliveries to situations where the gas supply was inadequate to fulfill all wholesale customer contract demand requirements. In place of this limitation Northern sought the right to reduce gas deliveries up to fifteen percent of the customer’s contract demand on any day during the months of April and October, and up to thirty percent on any day during the months of May through September. The effect of this new curtailment right would have been to allow Northern to replenish its underground storage tanks without having first to discontinue deliveries to its own direct interruptible customers. The proposed revisions also restricted the use and resale rights of Northern’s wholesale customers by prohibiting the use of purchased gas in the customer’s own electric generating plants and the resale of the gas to consumers whose requirements were in excess of 25,000 Mcf per day.

Michigan Power filed a motion to reject Northern’s filing on the grounds that (1) the proposed curtailment revisions were an illegal unilateral change in Northern’s contract, with Michigan Power and (2) the proposed revisions constituted an abandonment of service which required a proceeding under section 7 of the Act, 15 U.S.C. § 717f (1970), rather than section 4, 15 U.S.C. § 717c (1970).

On February 26, 1971 the Commission issued an order in Docket No. RP71-89 denying Michigan Power’s motion to reject on the ground that the Supreme Court in United Gas Pipe Line Co. v. Memphis Light, Gas & Water Div., 358 U.S. 103, 79 S.Ct. 194, 3 L.Ed.2d 153 (1958), rehearing denied, 358 U.S. 942, 79 S.Ct. 344, 3 L.Ed.2d 350 (1959), had sustained unilateral changes in contracts where the right to make such changes had not been bargained away by the natural gas pipeline company. The Commission deferred consideration of the applicability of section 7 abandonment proceedings and suspended the effectiveness of the filed tariff revisions until April 27, 1971.

Michigan Power filed a motion for reconsideration of the February 26 order in Docket No. RP71-89. On March 19, 1971 the Commission issued an order granting partial reconsideration of its February 26 order. The Commission (1) extended the suspension period, and (2) held that formal abandonment proceedings under section 7 of the Act were not required. With respect to the abandonment issue the Commission found “that the proposal of Northern [was] a change in service which [was] a permissible filing under Section 4 of the Act,” Order Granting Partial Reconsideration, Amending Suspension Period, Denying Stay, and Determining Abandonment Issue (March 19, 1971).

In light of the Commission’s decision to extend the suspension périod, on March 22, 1971, Northern filed a notice of withdrawal of its filing in Docket No. RP71-89. On April 19, 1971 the Commission allowed Northern’s withdrawal.

The proceedings which are the basis for this appeal began when Northern, on April 26, 1971, filed for a general rate increase, under section 4 of the Act, in Docket No. RP71-107. As part of its filing Northern proposed the same revisions of its curtailment rights as it had proposed in Docket No. RP71-89. Michigan Power intervened in Docket No. RP71-107 and objected to the curtailment plans on the same grounds it had argued in Docket No. RP71-89. On May 26, 1971 the Commission denied Michigan Power’s motion to reject. The denial was based upon the rationale stated in the Commission’s February 26, 1971 and March 19, 1971 orders in Docket No. RP71-89. Michigan Power filed an application for rehearing of the May 26 order, which the Commission denied on July 23, 1971. Michigan Power seeks review of the Commission’s May 26 and July 23 orders in Docket No. RP71-107. For reasons stated below we affirm.

I.

At the outset the Commission says the challenged orders are interlocutory and not subject to our scrutiny until after the Commission’s hearing on the reasonableness of Northern’s proposals.

Although procedural orders of the Commission are not normally reviewable, FPC v. Metropolitan Edison Co., 304 U.S. 375, 383-384, 58 S.Ct. 963, 82 L.Ed. 1408 (1938); Texas Gas Corp. v. FPC, 102 U.S.App.D.C. 59, 250 F.2d 27 (1957), it is our duty to review orders which have an immediate impact on petitioner’s rights and are of such a nature as to result in irreparable harm. Amerada Petroleum Corp. v. FPC, 285 F.2d 737, 739 (10th Cir. 1960); Isbrandtsen v. United States, 93 U.S.App.D.C. 293, 211 F.2d 51, cert, denied, 347 U.S. 990, 74 S.Ct. 852, 98 L.Ed. 1124 (1954); Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). We think the Commission’s determination that Northern could properly file its unilateral curtailment revisions under section 4(e) of the Act, rather than under section 7(b) was a final determination of substantive character which could result in irreparable injury. Atlanta Gas Light Co. v. FPC, 476 F.2d 142, 147-148 (5th Cir. 1973). After the suspension period provided in section 4, the order permitted Northern to withhold volumes of gas which otherwise it would have been obliged to deliver. The impact on Michigan Power could be immediate, and the injury caused could not be rectified by subsequent Commission action. In a proceeding under section 7, on the other hand, the revised curtailment plan could not have gone into effect before the Commission held a hearing and made its findings of fact.

II.

On April 15, 1971 the Commission issued Order No. 431, promulgating a statement of general policy. 36 Fed. Reg. 7505 (1971). Order No. 431 stated in part:

(a) This Commission, charged with the responsibility for natural gas reliability, hereby promulgates as a statement of general policy that jurisdictional pipeline companies shall take all steps necessary for the protection of as reliable and adequate service as present supplies and capacities will permit during the 1971-72 heating season and thereafter, including adequate injection into storage in anticipation of the heating season.

(b) In order to effectuate the foregoing :

(1) During the storage injection season all natural gas pipelines subject to the jurisdiction of the Commission should make every reasonable effort to fill all storage fields supplied by such pipelines to a capacity sufficient to meet the anticipated heating se'ason demands.

(2) (i) All jurisdictional pipelines will within 30 days hereof, submit a written report (four copies) to the Secretary of the Commission indicating how the instant statement of policy will be implemented. Pipelines responding that curtailment will be necessary will file a tariff sheet, pursuant to sections 4 and 5 of the Natural Gas Act and the Commission’s regulations thereunder, setting forth a curtailment plan to effectuate the instant policy or state that the curtailment program, if any, currently on file will effectuate this policy. The curtailment plan proposed may be divided between the injection season and the heating season, since different objectives may require different treatment.

•X- ‘X- "X1 •X* *X" *X*

(7) Jurisdictional pipelines have the responsibility in the first instance to adopt a curtailment program by filing appropriate tariffs. Such tariffs, if approved by the Commission, will control in all respects notwithstanding inconsistent provisions in sales contracts, jurisdictional and nonjurisdie-tional, entered into prior to the date of the approval of the tariff.

Responding to Order No. 431, Northern informed the Commission, in part, that

it will be necessary, to some extent, to effectuate limited curtailment of certain large volume interruptible loads below contract demand to assure the availability of sufficient pipeline capacity and volumes of gas to replenish the Redfield Underground Storage Field.

Continuing its response, Northern stated:

Northern will implement the above-described method of replenishing Northern’s storage facility during the injection season of 1971 only. In its filing at Docket No. RP71-107, made pursuant to Section 4 of the Natural Gas Act, Northern proposes, among other things, a revision to Section 9 of the General Terms and Conditions of its tariff in order to accomplish curtailment below contract demand for the future.

Letter from Gordon Severa to Federal Power Commission, Attention, Acting Secretary Kenneth Plumb, May 14, 1971.

In FPC v. Louisiana Power & Light Co., 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972), the Supreme Court considered the validity and scope of Order No. 431. The Court’s decision established that (1) the FPC may deal with curtailment plans in proceedings under section 4 of the Act; (2) permitting a pipeline’s curtailment plan to take effect despite contrary terms in existing contracts is not inconsistent with the decision in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373 (1956); and (3) a curtailment plan does not of itself constitute an abandonment' of service within the meaning of section 7(b). In conclusion the Court said that the Natural Gas Act fully authorizes the method chosen by the FPC for the exercise of its jurisdiction in Order No. 431. (406 U.S. at 647, 76 S.Ct. at 373).

We think the decision in FPC v. Louisiana Power & Light Co. controls in this case. The petitioner attempts to distinguish the Louisiana Power & Light Co. case upon the ground that the curtailment plan here proposed was in fact an abandonment. We are not persuaded by this argument; on the contrary, we agree with the Commission that Northern does not seek permission to stop selling gas to any of its customers on a permanent basis. Northern alleges only that its gas supply and pipeline capacity are inadequate to permit it both to supply full contract demands to its customers during the summer and to refill its storage reservoir so that it will be able to meet the customers’ requirements during the winter.

Finally, the petitioner argues that the curtailment plan submitted by Northern in RP71-107 is not responsive to Order No. 431. We reject this argument since Northern’s response to Order No. 431 specifically referred to the curtailment plan proposed in Docket No. RP71-107.

The orders of the Commission are

Affirmed.

LEVENTHAL, Circuit Judge,

did not participate in the disposition of this case.

      . (e) Whenever any such new schedule is filed the Commission shall have authority, either upon complaint of any State, municipality, State commission, or gas distributing company, or upon its own initiative without complaint, at once, and if it so orders, without answer or formal pleading by the natural-gas company, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and the decision thereon, the Commission, upon filing with such schedules and delivering to the natural-gas company affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect, and after full hearings, either completed before or after the rate, charge, classification, or service goes into effect, the Commission may make such orders with reference thereto as would be proper in a proceeding initiated after it had become effective. If the proceeding has not been concluded and an order made at the expiration of the suspension period, on motion of the natural-gas company making the filing, the proposed change of rate, charge, classification, or service shall go into effect. . . .
      15 U.S.O. § 717c(e) (1970).

      . (b) No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment.
      15 U.S.C. § 717f (b) (1970).


author: McGOWAN, Circuit Judge:

text:
    Erwin A. LaROSE and Jimmy Lee Swaggart, Appellants, v. FEDERAL COMMUNICATIONS COMMISSION.
    No. 72-2069.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 18, 1973.
    Decided March 26, 1974.
    Lauren A. Colby, Washington, D. C., for appellants.
    Philip Permut, Counsel, F. C. C., with whom John W. Pettit, Gen. Counsel, and Joseph A. Marino, Associate Gen. Counsel, F. C. C., were on the brief, for ap-pellee.
    Before McGOWAN, ROBINSON and MaeKINNON, Circuit Judges.
   McGOWAN, Circuit Judge:

Appellant LaRose, having been designated by a federal court as receiver in bankruptcy of the assets of a corporation, and, as such, having been recognized by the Federal Communications Commission as the involuntary assignee of that corporation’s license to operate a radio station, sought in due course to sell and assign the license for the benefit of the bankrupt estate. His initial attempt was rebuffed by the Commission on the ground that the transfer would have violated the Commission’s so-called Second Thursday principle. The Commission then denied renewal of the license, and thereafter refused, on the ground of administrative finality, to entertain a petition for reconsideration accompanied by a new proposal of sale. We think that, in the circumstances of this case, the Commission has misapplied the finality doctrine.

I

The question before this court is whether the Commission abused its discretion in refusing to reopen its proceedings to consider the renewal of the license and its simultaneous sale and assignment to appellant Swaggart. Since resolution of this question depends so heavily on the facts, a detailed review of the entire history of the case is indicated.

Capital City Communications, Inc., the previous licensee of radio station WLUX, obtained its license through an FCC approved assignment from KCIL, Inc. It now appears that some of the representations made by Capital in gaining Commission approval of that transfer may have been misleading, and that Capital thereafter may have operated the station in repeated violation of Commission rules. Thus, when time for renewal of the Capital license arrived, the Commission designated the Capital renewal application for a hearing on issues involving alleged violations of FCC rules and regulations. Order and Notice of Apparent Liability, F.C.C. 7-1140 (Oct. 27, 1970).

Some four months thereafter, KCIL, a substantial creditor of Capital, filed a petition to have Capital adjudicated a bankrupt, which was allowed in March of 1971. Appellant LaRose was subsequently appointed receiver of the assets and authorized by the referee in bankruptcy to operate the station until La-Rose could arrange for its disposition. LaRose then sought and obtained from the Commission approval of the involuntary assignment to him of the WLUX license, and was substituted for Capital City in the pending license renewal proceedings.

LaRose negotiated the sale of the Capital assets and license to United Broadcast Industries, Inc. The proceeds from the purchase price of $250,000.00 were calculated to support the administrative expenses of the bankruptcy as well as to provide a 97.51% recovery of all creditors’ claims. LaRose obtained approval of the referee in bankruptcy and thereafter petitioned the Commission for termination of the Capital license renewal proceedings and for approval of the sale and assignment of the WLUX license to United. In support of these requests, LaRose asserted that the proposed sale would comply with the FCC Second Thursday doctrine governing a receiver’s disposition of the license of a station whose predecessor licensee stood accused of wrongdoing. Additionally, LaRose maintained that the issues scheduled for hearing in the original renewal proceeding were effectively mooted by the adjudication of bankruptcy, his designation as receiver and licensee, and the negotiation of a sale and assignment of the WLUX license to a candidate who would operate the station in the public interest.

In February of 1972, the FCC denied both LaRose’s request for termination of the original renewal proceedings and for assignment of the license to United, finding that the proposed sale failed to satisfy the Second Thursday doctrine requirement that the benefits to be received from it by persons charged with wrongdoing in the operation of the bankrupt station be outweighed by the public interest in protecting innocent creditors. Capital City Communications, Inc., 33 F.C.C.2d 703 (1972). After denying appellant LaRose’s petition for reconsideration of those rulings, 34 F.C.C. 2d 685 (1972), the Commission proceeded to a consideration of renewal of the Capital license and, based on the misconduct of the principals of Capital, refused to renew the WLUX license to LaRose. 37 F.C.C.2d 164 (1972)

Shortly thereafter, LaRose petitioned for reconsideration of the non-renewal of the WLUX license and offered to the Commission a second proposal for sale and assignment, which he asserted would offer no possibility of benefiting the miscreant owners of Capital City. The Commission refused to consider these petitions, however, determining that the public interest embodied in the doctrine of administrative finality precluded considering LaRose’s proposal of a second sale after his failure on the first. Appellant LaRose and appellant Swaggart, the proposed purchaser in the second transaction, appeal.

II

The Commission has gradually evolved a special policy for the disposition of a license held by a trustee in bankruptcy. In the normal non-bankruptcy situation, the Commission will not approve any assignment of a license until the existing authorization is renewed. Thus, if the assignor’s qualifications are insufficient to enable him to renew his license, the Commission will not authorize assignment of the license to an otherwise qualified recipient. See generally Jefferson Radio Co., Inc. v. FCC, 119 U.S.App.D.C. 256, 340 F.2d 781 (D.C. Cir. 1964); United Television Co. of New Hampshire, 38 F.C.C.2d 400 (1972); Gross Broadcasting Co., 31 F.C.C.2d 226 (1971). However, in recognition of the public interest in protecting innocent creditors, the Commission will approve the sale and assignment of the bankrupt’s license when the transaction will not unduly interfere with the FCC mandate to insure that broadcast licenses are used and transferred consistently with the Communications Act. As the Commission recently explained its Second Thursday doctrine:

[D] espite the general rule that an assignment of license will not be authorized during the pendency of a hearing involving the character qualifications of a licensee, the Commission will permit such upon a showing that alleged wrongdoers will derive no benefit, either directly or indirectly, from the sale or will derive only minor benefit which is outweighed by the equities in favor of innocent creditors.

Shell Broadcasting, Inc., 38 F.C.C.2d 929, 931 (1973). See also Image Radio Inc., 15 F.C.C.2d 317, 319 (1968).

The Commission’s regular practice is to approve an involuntary assignment of the license to a receiver in bankruptcy, who must then find a qualified purchaser and structure the sale in compliance with the mandate of Second Thursday. Thus, in evaluating the petition for assignment of the license from the receiver to the proposed assignee, the Commission must assess both the assignee’s qualifications and the public interest considerations embodied in Second Thursday, which relate to the minimization of profit by the bankrupt parent-licensee.

III

Appellant LaRose initially arranged for a transfer that, according to his judgment, would have satisfied the requirements of the Commission’s stated policy. While he obtained the referee’s approval of the sale, LaRose failed in this regard with the Commission. La-Rose then arranged another sale on different terms to another buyer (appellant Swaggart) which the Commission refused to consider.

The Commission’s reason for this latter action was stated to be the public interest in the finality of administrative decisions. Quoting from this court’s decision in Fischer v. Federal Communications Commission, 135 U.S.App.D.C. 134, 417 F.2d 551, 555 (1969), in which we held that administrative agencies need not “play games with applicants” who change plans only after failing to succeed in advancing more favorable proposals, the Commission observed that “the Receiver would have us commence the entire process anew for the purpose of considering a different proposal . [A]t some point the administrative proceeding must be brought to a conclusion and we believe that point has been reached here.” 38 F.C.C.2d 1101 (1972).

Administrative finality so employed does not go to the Commission’s jurisdiction to entertain the petition for reconsideration of the non-renewal of the WLUX license. The Commission retained authority to reconsider its earlier decision on that score until an appeal was filed in this court, or until the time for filing such an appeal had expired. See Greater Boston Television Corp. v. FCC, 149 U.S.App.D.C. 322, 463 F.2d 268, 282-283 (1971); W. S. Butterfield Theatres v. FCC, 99 U.S.App.D.C. 71, 237 F.2d 552, 555 (1956). Thus, the considerations of public interest inherent in the jurisdictional concept of administrative finality are not significantly implicated. Rather, the public interest considerations to be preserved in refusing to reconsider renewal of the WLUX license and its simultaneous sale and assignment to appellant Swaggart are those protected by any denial of any attempted second bite at the administrative apple. Paramount among those interests is the promotion of administrative efficiency. Additionally, the Commission’s refusal to reconsider can . in some cases serve to prevent the possible duplicity of parties who attempt to urge one goal, and, after having failed at that, thereafter advance a less desirable but more plausible position. See Fischer, supra.

However, as the Commission has recognized, Fischer does not announce an iron-clad rule of administrative finality. Indeed, after having prevailed before this court in Fischer, the FCC thereafter waived its prohibition against consideration of repeated proposals; consolidated those proposals with others, and considered the entire matter anew. Cape Fear Broadcasting, 33 F.C.C.2d 697, 698 (1971). In other instances the Commission has likewise recognized the need to reopen records and reconsider matters. See e. g., In re Cathryn Murphy, 42 F.C.C.2d 346 (1973).

While this decision to reopen proceedings for reconsideration is one committed to the discretion of the agency, Radio Corp. of America v. United States, 341 U.S. 412, 420-421, 71 S.'Ct. 806, 95 L.Ed. 1062 (1951); WEBR v. FCC, 136 U.S.App.D.C. 316, 420 F.2d 158, 165-166 (1969), that discretion must be exercised without caprice. In this case, we are persuaded that the Commission failed to do so in refusing to consider the merits of the second proposed sale and assignment offered by appellant LaRose within weeks of the Commission’s refusal to renew the WLUX license. Cf. Enterprise Co. v. FCC, 97 U.S.App.D.C. 374, 231 F.2d 708 (1955).

To the extent that the Commission’s refusal to reopen may reflect a feeling that appellant LaRose should have abandoned the first proposed sale and assignment at an earlier date in the administrative proceedings, it fails to recognize the constraints imposed by appellant’s status as a receiver in bankruptcy, as well as the unclear state of the FCC Second Thursday doctrine itself. As a receiver, appellant LaRose was an officer of the court, Powell v. Maryland Trust Co., 125 F.2d 260, 271 (4th Cir.), cert, denied, 316 U.S. 671, 62 S.Ct. 1041, 86 L.Ed. 1746 (1942), and charged with the duty of disposing of the assets in a manner that maximized the interests of the creditors. Moreover, the Second Thursday doctrine hardly held up a beacon of clarity that definitively foretold the Commission’s disposition of the first proposed assignment. Application of Second Thursday requires an ad hoc balancing of the possible injury to regulatory authority that might flow from wrongdoers’ realization of benefit against the public interest in innocent creditors’ recovery from the sale and assignment of the license to a qualified party. The first proposed sale and assignment was very beneficial to Capital’s creditors and appeared to benefit the principal wrongdoers of Capital only indirectly. Moreover, appellant LaRose felt that this indirect benefit — in this case, the elimination of some of the wrongdoers’ secondary liability on certain financial obligations — was mitigated by the fact that those persons were judgment-proof.

In this posture, appellant LaRose was well within the bounds of rationality in terms of faithfulness to his duties as a receiver. And, having arranged for the sale and obtained the referee’s approval, LaRose was required to make all reasonable efforts to obtain Commission approval. Without expressing any judgment on the Commission’s application of the Second Thursday doctrine to the first sale transaction, see note 3, supra, we do not think LaRose could be faulted for his repeated attempts to persuade the FCC that the balance of public interests lay on his side of the scales.

The Commission’s refusal to consider the second proposal frustrates the public interests recognized in Second, Thursday itself. Since the license is by far the most valuable asset of Capital City, the Commission’s refusal effectively deprives creditors of any significant recovery of the moneys they have advanced.

Finally, the Commission’s prior approval of the involuntary transfer of the Capital license to appellant LaRose resulted in the continued operation of the station and the incurring of new liabilities from advancements of credit which made that operation possible. This obvious consequence of the assignment and the Commission’s permitting the continued operation of the station is at least a factor the Commission should have recognized in determining whether to reconsider the matter.

In most cases, the interests of administrative finality will suffice to support a Commission’s discretionary decision to refuse to reconsider an earlier decision. On the facts of this case they will not; and it was an abuse of discretion to refuse to reconsider renewal of the WLUX license and appellant LaRose’s tendered proposal for its sale and assignment to appellant Swaggart.

We express no views on whether the proposed sale to appellant Swaggart will satisfy the Commission’s Second Thursday doctrine. That issue has not yet been considered by the Commission and is not before us. We simply conclude that, on the facts of this record, it was an abuse of discretion for the Commission to take the actions that prevented it from addressing that issue.

Accordingly, we reverse the Commission’s order of November 8, 1972 denying reconsideration of its order of September 20, 1972 denying renewal of the WLUX license, and we remand the case to the Commission with directions to consider whether the proposed sale and assignment of such license to appellant Swaggart would promote the “public interest, convenience, and necessity,” 47 U.S.C. § 310(b).

It is so ordered.

      . Second Thursday Corp., 22 FOC 2d 515 (1970), 25 FCC 2d 112 (1970).

      . Assigning a license to a receiver in bankruptcy, and thereafter refusing to renew that license solely on the basis of the previous misconduct of the involuntary assignor, presents some logical difficulties. In the normal case the receiver will in no way be associated with the previous misdeeds of the bankrupt involuntary assignor. And, if the renewal issue is framed in terms of the assignor’s misdoings, the receiver will not be ideally situated to gather adequate information to attempt to prove the case for license renewal. Thus, the manner in which the agency has framed the issue virtually assures that it will receive only very limited adversarial development of the underlying facts.
      More importantly, this treatment of the license renewal question does little to accommodate the Commission’s mandate to regulate in the public interest. This mandate is as broad as it is difficult to define. See generally Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841 (1970), cert, denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971) ; Radio Relay Corp. v. FCC, 409 F.2d 322 (2 Cir. 1969). Administrative agencies have been required to consider other federal policies, not unique to their particular area of administrative expertise, when fulfilling their mandate to assure that their regulatees operate in the public interest. For example, the Supreme Court recently held that the Federal Power Commission should consider the anti-competitive effect of the issuance of a security in determining whether that issuance would be compatible with the public interest. Gulf States Utilities v. FPC, 411 U.S. 747, 93 S.Ct. 1870, 36 L.Ed.2d 635 (1973). See also Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2d Cir. 1965), cert, denied sub nom., Consolidated Edison of New York v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966). While such decisions cannot be automatically transported from one administrative agency to the next, City of Lafayette v. SEC, 147 U.S.App.D.C. 98, 454 F.2d 941, 948 (1971), aff’d sub nom., Gulf States Utilities, supra, they do indicate that agencies should constantly be alert to determine whether their policies might conflict with other federal policies and whether such conflict can be minimized.
      While the Commission’s Second Thursday doctrine for judging proposed assignments accommodates the policies of federal bankruptcy law with those of the Communications Act, the manner of its disposition of the license renewal issue in this case suggests that the FCC has not yet reconciled the two bodies of law in dealing with this aspect of the problem. In the case in which the license has been involuntarily assigned to a receiver in bankruptcy, the conduct of the previous licensee is of only indirect relevance to the renewal issue. As in the ease of the Second Thursday doctrine itself, the Commission should assure that licensees do not use bankruptcy as a means of circumventing their obligation to operate in the public interest. However, as in Second Thursday, that question should be considered in light of the public interest in the protection of innocent creditors. The broad question, therefore, would seem to be whether the public interest would best be served by permitting the receiver to continue to operate the station for a limited time in order to enable him to dispose of the asset. Like most FCC license determinations, this question would require evaluation of a number of factors, e. g., the receiver’s ability temporarily to operate the station successfully; the existence of other parties who seek construction permits for the same or overlapping frequencies and the relative merits of their applications; and the likelihood of the receiver’s disposition of the license within a reasonable time. While the establishment of policies that would accommodate these diverse interests is by no means an easy task, it would seem to be an endeavor that would be more in keeping with the overall agency responsibility than is the FCC’s present course.
      Our disposition of this appeal makes it unnecessary for us to rule on this question definitively. As the Commission on reconsideration will immediately be presented with a proposed sale and assignment, it is possible that no question will arise concerning appellant LaRose’s qualifications to serve as a temporary licensee.

      . Appellants challenge the Commission’s decision not to renew the WLUX license and its refusal to reconsider that nonrenewal and to examine the proposed sale by LaRose to Swaggart. 37 F.C.C.2d 164 (1972) and 38 F.C.C.2d 1010 (1972). The Commission’s previous determination that the first proposed sale violated the FCC Second Thursday doctrine, 33 F.C.C.2d 703, reconsideration denied, 34 F.C.C.2d 685 (1972), is not in issue here.

      . The qualifications of the original licensee are irrelevant to this determination, as are those of the receiver in bankruptcy who is at the time licensee by virtue of the involuntary assignment. In some cases an additional issue will be interjected by the filing of an independent petition to operate on that frequency. In such a case, the Commission would conduct a comparative hearing between the proposed assignee and the other petitioner. See Arthur A. Cirilli, 2 F.C.C.2d 692, 693 (1966).

      . We note in passing that one of those innocent creditors is the federal government itself. Capital City has an outstanding income tax obligation for $24,558, and it appears that the proceeds from the second proposed sale would support a recovery of 51% of this amount. Likewise, sale of the license to appellant Swaggart would support recovery of a similar percentage of some $4,500 in state and local taxes. See Exhibit B, Appendix, at 67.

      . The Commission has the power to suspend licenses in an appropriate case. 47 U.S.C. § 303.


author: PER CURIAM.

text:
    UNITED STATES of America v. Sterling R. PATRICK, Appellant.
    No. 72-1481.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 18,1973.
    Decided March 28, 1974.

      Marx Leva, Washington, D. C. with whom Lois J. Schiffer, Washington, D. C. (both appointed by this Court), was on the brief, for appellant.
    Julius A. Johnson, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, Asst. U. S. Atty., and Herbert B. Hoffman, Asst. U. S. Atty., at the time the brief was filed, were on the brief, for appellee.
    Before BAZELON, Chief Judge, WISDOM, Circuit Judge for the Fifth Circuit and RICHEY, United States District Judge for the District of Columbia.

       Sitting by designation pursuant to 28 U.S.C. § 291(a).

       Sitting by designation pursuant to 28 U. S.C. § 292(a).

   PER CURIAM.

Appellant was charged with first degree murder and convicted of second degree murder accompanied by a jury recommendation that he receive psychiatric treatment. He was sentenced to a term of five to twenty years and the District Judge “[ojrdered that the Defendant is to go immediately to the Medical Center for Federal Prisoners in Springfield, Missouri.” Appellant’s principal contention on appeal is that the District Judge erred in responding affirmatively to a written question from the jury asking whether they could couple a recommendation of psychiatric treatment with a verdict of murder in the second degree. We find the Court’s response plainly erroneous, and therefore reverse.

Uncontroverted circumstantial evidence showed that appellant fatally stabbed his foster mother in her home on the afternoon of December 8, 1970. On the day of the slaying, according to neighbors, noises came from the apartment of the deceased that sounded at one time like furniture being moved and at another like a baby crying. A seventeen year old boy who lived nearby testified that on the afternoon of the slaying as he walked past the residence of the deceased, appellant called to him from the deceased’s apartment window and asked if the youth would telephone the police because appellant’s mother was bleeding. The passerby ignored the request, but returned some fifteen minutes later to find Mr. Timothy Wise, sixty-year old husband of the deceased, entering the front door of the home. Mr. Wise testified that once inside he encountered appellant, who had not lived at home for several months. Appellant ran down the stairs toward Wise and told him that, “Moma is dead. I don’t know who killed her.” (Tr. 91). When the police arrived they entered the apartment with Mr. Wise and found the deceased lying on the floor clad only in panties with her slip wrapped around her waist, her brassiere under her body and a pillow covering her head. Mr. Wise and appellant were taken to the police station for questioning, and several hours later, after further police investigation at the apartment, appellant was arrested and given Miranda warnings. Appellant then made a statement and at one point told police that, “I feel that I killed her but I don’t remember how it happened.” (Tr. 215-216). One of the detectives who took appellant’s statement recalled that appellant was extremely nervous during the first few hours at the station and interrupted his statement frequently in order to drink coffee or go to the bathroom.

The theory of the defense was that as a result of taking LSD on the date in question, appellant lacked the intent requisite for first degree murder. Several doctors testified that appellant told him he had taken three tabs of LSD on the day of the offense and that he had been using heroin and barbiturates steadily since 1967. Dr. Robert H. Robertson, a psychiatrist at St. Elizabeths Hospital, had examined appellant eight times pursuant to a court-ordered study. He also reviewed psychological reports and interviews with appellant that had been made during three prior admissions to St. Elizabeths between 1967 and his arrest. On that basis Dr. Robertson testified that appellant had a drug dependency and that if “he had LSD that day . . . and had an LSD effect . . . then I would say it was connected” to the crime. (Tr. 370). He also stated that appellant told him he had hallucinations which Dr. Robertson concluded were drug-related.

Dr. Robertson also testified that he was of the opinion that appellant suffered from sexual deviation, taking the form of both homosexuality and transvestism. He outlined appellant’s history of attempting to pass himself as a woman and suggested that “it is . . . almost approaching [delusions], that he not only dresses up as a woman but he really tells people he is a woman and calls himself Shirley.” (Tr. 178). In conclusion, he stated:

“We believe that homosexuality often occurs in men who have abnormal attachment to the woman who raised them, even to the point of some incestuous wishes on the part of the individual. Frequently homosexuality is associated with a latent [sic] or overtones of incestuous feelings. The fact that she was naked would make me wonder whether there might not have been some incestuous feelings at that time of this slashing of her 47 times.” (Tr. 288). (See also Tr. 321).

According to Dr. Robertson the slaying, if indeed it was committed by appellant, was a “sickness in itself.” (Tr. 288).

The government presented the testimony of Dr. John Davies, a private psychiatrist who examined appellant on one occasion sixteen months after the slaying. Dr. Davies testified that appellant was “not suffering from any mental disease or defect other than sexual deviation” at the time of the murder, (Tr. 397) and designated appellant’s sexual deviation as a “personality disorder.” Dr. Davies concluded that appellant’s sexual deviation consisted of a life-long pattern of behavior that did not lend itself to sudden interruption which would result in a failure to control his behavior on the date of the slaying. With respect to whether appellant may have been under the influence of LSD at that time, Dr. Davies explained that he saw no evidence of such condition, apart from appellant’s claims.

After being instructed at length on the insanity defense, the jury deliberated throughout the afternoon of one day and for several hours the next morning before sending a note to the court informing it that “the jury is unable to reach a verdict — ten find [appellant] guilty, and two not guilty by reason of insanity”. (Tr. 526). The court discussed this note with defense counsel and appellant, advising them that the jury’s spontaneous announcement of its numerical division required its discharge unless the defense agreed that the jury should continue to deliberate. Upon the recommendation of counsel, appellant consented to the jury continuing in its deliberations. Thereupon the Court called the jury back into the courtroom and asked them to continue deliberating.

Within an hour the jury sent another note to the court stating,

“The jury would like to know if they can make a recommendation of psychiatric treatment for the defendant along with a verdict of murder in the second degree?” (Tr. 531).

In the presence of counsel, the judge read the jury’s question, and his suggested response which was,

“Yes, if your verdict of murder in the second degree is beyond a reasonable doubt as to all elements and unanimous.” (Tr. 531).

Neither counsel objected and the court commented that, “it looks as though we have a verdict.” (Tr. 532). He then sent for appellant and told him of the jury’s most recent query and the court’s response. Appellant said nothing. Shortly thereafter the Court’s answer was sent to the jury. Fifteen minutes later they returned a verdict of “guilty of murder in the second degree”, stating that “the jury recommends that the Defendant receive psychiatric treatment”.

II

In the circumstances of this case, the District Judge erred when he told the jury that it could recommend psychiatric treatment if it returned a guilty verdict. It is well established in this jurisdiction that the jury’s only function is to assess guilt or innocence on the basis of their independent view of the evidence. Sentencing decisions, on the other hand, are within the exclusive province of the court and it is the court’s responsibility to. insure that these functions are kept separate. As long ago as 1911 in Miller v. United States, 37 U.S.App.D.C. 138, 143, we indicated :

“it is error for the court to put before the jury any considerations outside the evidence that may influence them, and lead to a verdict not otherwise possible of attainment. The deliberations of the jury should revolve around the evidence before them, and should be uninfluenced by other considerations or suggestions. The moment other suggestions or considerations find lodgment in their minds, that moment they stray from the path which the law has marked out, and their verdict, in consequence, does not rest solely upon the evidence. It as a colored and false verdict. When we consider that the existence of a reasonable doubt entitles a defendant to an acquittal, and that a very slight circumstance may affect the verdict, the danger from putting before the jury anything that may improperly influence their deliberations becomes more apparent.”

In particular, in a case such as this one where the sole issue is the question of criminal responsibility, the potential for undermining a jury verdict by allowing a recommendation of psychiatric treatment is obvious. The rationale underlying the insanity defense is that the jury —as a representative of the community’s moral conscience- — -is to decide whether a person was sufficiently able to control his behavior so that he may justly be held responsible for committing an antisocial act. Despite recommendations by several commentators and judges, this court has steadfastly refused to abolish the insanity defense and replace it with a post-conviction inquiry into whether “treatment” or “punishment” is appropriate. Having refused to eliminate this moral component, we see no justification in diminishing it by permitting the jury to focus on disposition rather than blame. To allow a jury recommendation of treatment would do precisely that.

Relying on Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957), the government argues that the court’s response was appropriate since this case involved the insanity defense. In Lyles we said it was proper for a trial court to instruct the jury as to the general consequences attaching to a verdict of not guilty by reason of insanity since jurors “are aware of the meanings of verdicts of guilty and not guilty. . . . But a verdict of not guilty by reason of insanity has no such commonly understood meaning.” 254 F.2d at 728. We indicated that explanation of the insanity verdict was a narrowly limited exception to “the doctrine, well established and sound, that the jury has no concern with the consequences of a verdict.” Id. In this case, the jury was properly instructed under Lyles with respect to the effect of a finding of not guilty by reason of insanity. Their query went to the consequences attaching to a verdict of second degree murder, not to a verdict of acquittal by reason of insanity. Hence, Lyles, itself, required the court to refuse to answer the question and instruct the jury that they have “no concern with the consequences of [their guilty] verdict.”

The government also contends that even if the court’s response was erroneous, the error was harmless because the jury had reached a verdict of guilty before it inquired whether it could tack on a recommendation for treatment. While this view is not inconsistent with the record, an equally plausible hypothesis — especially in light of the earlier note that the jury was divided ten to two — is that the second note was aimed at facilitating a compromise verdict by soliciting information that would assure those dissenting jurors, who would not otherwise have acquiesced, that appellant would receive treatment.

It should be unnecessary for us to- speculate from the “inescapable remoteness of appellate review”, which of these possibilities in fact occurred. When a judge is asked whether the jury can make a recommendation of leniency or treatment, he should inform the jury that:

“It is the jury’s responsibility to determine guilt or innocence on the basis of the evidence that has been presented. You are not to consider the question of punishment in arriving at your verdict. If you find the defendant guilty the Court will determine the appropriate sanction.”

If this approach is followed, we will not find it necessary to guess blindly as to the effect of an erroneous instruction on dissenting jurors once they return to the jury room.

Reversed and remanded for a new trial in accordance with this opinion.

      . While the court “[o]rdered” appellant to Springfield, Missouri, in effect he was making a recommendation since the Attorney General of the United States has sole discretion as to where a federal prisoner serves his sentence. 18 U.S.C.A. § 4001(b)(2) (1973 Supp.)

      . Appellant also contends that the denials of his motions for a bifurcated trial, raised both before and during trial, were in error. Since appellant’s only significant defense, however, was insanity, we find that there was no “prejudice to the defense on the merits due to the failure to bifurcate.” Harried v. United States, 128 U.S.App.D.C. 330, 389 F.2d 281 (1967). See United States v. Bennett, 148 U.S.App.D.C. 364, 460 F.2d 872 (1972). Our disposition makes it unnecessary to consider any other issues raised by appellant.

      . See Mullin v. United States, 123 U.S.App.D.C. 29, 356 F.2d 368 (1966); United States v. Smoot, 150 U.S.App.D.C. 130, 463 F.2d 1221 (1972) ; Williams v. United States, 119 U.S.App.D.C. 190, 338 F.2d 530 (1964). Cf. Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135, 71 L.Ed. 345 (1920). We leave open the question of whether it was appropriate for the trial court to inquire whether appellant wanted to “waive” his right to a mistrial, or whether the fair administration of justice automatically requires a mistrial when the jury reveals its numerical division. We note, however, that the court did attempt to ameliorate any prejudice by instructing them that the court was “not in any way attempting to indicate how you should ultimately resolve this case as to the degree of homicide, as to the insanity, or as to anything else.”

      . The court gave the “Allen” charge to the jury in accordance with the model charge set forth and adopted by this court for use in this Circuit in United States v. Thomas, 146 U.S.App.D.C. 101, 449 F.2d 1177, 1187 (1971).

      . See Holloway v. United States, 80 U.S. App.D.C. 3, 148 F.2d 665 (1945) ; Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954) ; United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (1972).

      . See Mr. Justice Weintraub’s concurring opinion in State v. Lucas, 30 N.J. 37, 82, 152 A.2d 50, 74 (1959), and his remarks before the Annual Judicial Conference of Second Judicial Circuit, 37 F.R.D 365, 369 (1964) ; Katz and Goldstein, Abolish the “Insanity Defense” — Why Not?, 72 Yale L.J. 853 (1963) ; T. Szasz, Law Liberty and Psychiatry, 123-137 (1963). Morris, “The Dangerous Criminal,” 41 U.S.C.L.Rev. 514 (1968).

      . United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (1972).

      . Indeed, the court’s response was not only inappropriate, it was also incomplete. The court did not tell the jury that even if they did make a recommendation of treatment he was not bound by it, and that even if he did follow it, treatment was not assured since the Attorney General has ultimate power to decide where a prisoner is to be incarcerated, (see Note 1, supra) and the court has no way to insure that a prisoner will receive any particular form of rehabilitation or treatment. Compare United States v. Glick, 463 F.2d 491 (2nd Cir. 1972) ; United States v. Louie Gim Hall, 245 F.2d 338 (2nd Cir. 1957).

      . The question of whether a jury’s consideration of a sentencing recommendation has improperly interfered with its exclusive function to determine guilt or innocence often arises where the jury seeks permission to recommend leniency or where the court mentions sentencing in the charge. See Miller v. United States, supra; United States v. Glick, 463 F.2d 491 (2nd Cir. 1972) ; United States v. Louie Gim Hall, 245 F.2d 338 (2nd Cir. 1957) ; Lovely v. United States, 169 F.2d 386, 392 (4th Cir. 1948), cert, denied, 338 U.S. 834, 70 S.Ct. 38, 94 L.Ed. 508 (1949) ; Demetree v. United States, 207 F. 2d 892, 896 (5th Cir. 1953) ; United States v. Davidson, 367 F.2d 60 (6th Cir. 1966). Compare Fall v. United States, 60 U.S.App.D.C. 124, 49 F.2d 506 (1931) ; Gariepy v. United States, 220 F.2d 252, 262 (6th Cir. 1955), cert, denied, 350 U.S. 825, 76 S.Ct. 53, 100 L.Ed. 737; United States v. Parker, 103 F.2d 857, 863 (3rd Cir. 1939) ; United States v. Krulewitch, 167 F.2d 943, 950 (2nd Cir. 1948), reversed on other grounds.

      . Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965).

      . See generally, Fall v. United States, supra; United States v. Louie Gim Hall, supra; United States v. Glick, supra; Compare United States v. Davidson, supra.


author: GODBOLD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. 1,048,000 CAPSULES, MORE OR LESS, Labeled in Part: “AFRODEX”, etc., Defendants-Appellants.
    No. 72-3613.
    United States Court of Appeals, Fifth Circuit.
    May 28, 1974.

      George F. Townes, Greenville, S. C., Jerome R. Epstein, Houston, Tex., for def endants-appellants.
    Olney G. Wallis, James R. Gough, Asst. U. S. Attys., Houston, Tex., Joanne S. Sisk, John Eldred, U. S. Dept, of Health, Ed. & Welfare, Rockville, for plaintiff-appellee.
    Before THORNBERRY, GODBOLD and CLARK, Circuit Judges.

      . Dr. Russell Scott, Jr., a professor of urology and an expert on cancer of the prostate, testified as follows:
      “Q. Dr. Scott, what amount of methyltes-tosterone, in your opinion, would be required possibly to activate carcinoma of the prostate?
      “A. First of all, I can’t answer that, because — I mean, I don’t know the answer. I would think that, based upon experience in giving testosterone to patients with no cancer of the prostate in preparation for radioactive phosphorous, that 10, 15, 20 milligrams — I just don’t know. The point is that any testosterone, I think, would be dangerous in a man with latent cancer of the prostate, when we know the treatment is to remove all hormones, certainly not to give him any, but to remove what he has.
      “So I would have to say that any amount from 5 milligrams on, or one milligram, could be dangerous in a man with a latent cancer of the prostate which was not known to the physician administering the drug.”

   GODBOLD, Circuit Judge:

This case was instituted under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., for seizure and condemnation of a quantity of drug called “Afrodex” marketed by Bentex Pharmaceutical Company, claimant below. The libel alleges that Afrodex is misbranded under 21 U.S.C. § 352(f)(1), and thus subject to seizure and condemnation pursuant to 21 U.S.C. § 334, in that the article is, within the meaning of 21 U.S.C. § 321 (p), a “new drug” whose labeling is not specified in an approved New Drug Application (NDA). The parties stipulate that if Afrodex is a “new drug” it is misbrand-ed within the meaning of 21 U.S.C. § 352(f) (1). '

I. The statutory scheme

The Federal Food, Drug and Cosmetic Act, passed in 1938 and amended in 1962, defines a “new drug” as follows:

The term “new drug” means — (1) Any drug . . . the composition of which is such that such drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof ....

21 U.S.C. § 321(p). The italicized language was added by the Drug Amendments Act of 1962. Thus under present standards a “new drug” is one not generally recognized by qualified experts as both safe and effective under the conditions of use prescribed, recommended or suggested in its labeling. The 1962 amendments, however, also contained a “grandfather clause” relieving old drugs then on the market from the “effectiveness” provision of the definition of a “new drug” under certain circumstances. Under that clause a product is not a “new drug” even if it is not generally recognized as effective if it was marketed on October 9, 1962, was then generally recognized as safe, was not then covered by an effective NDA, and is still intended for use solely under the conditions prescribed as of October 9, 1962.

Under the scheme of the Act the ultimate determination of the safety of a drug is not a matter given to the courts, but one to be determined by the Food & Drug Administration upon submission of an NDA. Thus a decision adverse to claimant does not mean that Afrodex is unsafe or ineffective but simply that it has not been afforded that general recognition among qualified experts which when demonstrated exempts a drug from the NDA requirements of the Act.

II. The issues

After a complex trial the District Judge in an opinion reported at 347 F. Supp. 768 determined that (1) Afrodex was not a “grandfathered” drug because on October 9, 1962, it was not generally recognized among qualified experts as safe under the conditions of use prescribed, recommended, or suggested in its labeling; and (2) Afrodex is not presently generally recognized among qualified experts as safe and effective for the conditions of -use prescribed, recommended, or suggested in its labeling and is thus a “new drug.”

Bentex’s attack on the findings and conclusions of the trial court are directed at what it terms the evaluation of the evidence by the District Judge, in four respects. (A.) The safety of Afrodex should be judged by the safety of its three constituent ingredients and thus the District Judge should not have considered the lack of evidence of safety in combination as probative of a lack of general recognition of safety. (B.) In evaluating the general recognition of safety of the individual ingredients the District Judge relied on evidence that the ingredients were unsafe when taken in massive doses while the proper standard is safety at recommended or prescribed dosage. (C.) In evaluating the general recognition of safety of the individual ingredients the District Court erred by considering hazards resulting from a use contraindicated on the label. (D.) In evaluating whether Afrodex is presently generally recognized as effective for its intended uses the District Judge applied meanings to uses indicated other than those intended by the label.

A. Safety in combination

Bentex asserts as reversible error this statement in the opinion of the District Court:

It should be noted that the safety and efficacy of combination drugs such as Afrodex cannot be equated with the safety of the components separately or in combination with different ingredients, United States v. Seven Cartons, More or Less, etc., 293 F.Supp. 660, 664 (S.D.Ill.1968). Thus, the fact that any one individual component of a combination drug may be generally recognized as safe and effective is not relevant to the issue asserted, that is, whether the combination itself is so recognized.

Claimant’s first premise is that whether safety and effectiveness in combination may be determined from individual ingredient safety and effectiveness is a question to be determined in each case from the testimony of experts rather than a question to be resolved by application of a legal rule. Assuming this premise to be correct, however, would not afford a sufficient basis for reversal. Read in the context of the opinion as a whole, the statement represents but an alternative ground, and a minor one at that, on which the District Court based its conclusion that Afrodex is not and has never been generally recognized as safe. The paragraph in which the statement occurs begins,

A major portion of the expert testimony heard in this suit centered around the safety and efficacy of the component methyltestosterone. Expert testimony was also taken concerning yohimbine and extract of nux vomica, as well as the combination of these ingredients in the amounts contained in the drug Afrodex.

The clearly evident emphasis is not on the combination but on the ingredients individually. Similarly the District Court’s summary of the testimony in the paragraphs following this one contains extensive references to the individual ingredients and comparatively little reference to safety in combination. Read in context, the statement on which Bentex would predicate reversal is little more than a notation in passing. The major ground for the District Court’s conclusion was the determination that the individual ingredients of Afrodex were not generally recognized as safe. The focus of the remaining inquiries is on the general recognition of safety of the individual ingredients.

B. Dosage

We reject Bentex’s argument that the testimony of the government’s expert witnesses concerning lack of safety of the individual ingredients related to massive dosages rather than the dosage (20 milligrams of each active ingredient per day) prescribed on the label. Dr. Arthur Grollman, a professor of medicine appearing as an expert witness for the government, was asked whether in his opinion the ingredients in Afrodex “both singly and in combination” were safe “for treatment of the conditions for which Afrodex is offered,” and responded that under certain conditions use of those ingredients might not be safe. It is evident from Dr. Grollman’s prior testimony that he knew the dosage of each of the individual ingredients contained in Afrodex. The District Court was entitled to infer that a competent expert medical witness, knowing the composition of a drug, when asked about the safety of the ingredients of that drug for use in the conditions specified, would respond in terms of the lack of safety at the dosage prescribed. Bentex urges that such an inference is unsupportable because in cross-examination its counsel elicited several concessions damaging to the government regarding the probable small dosage safety of two of Afrodex’s ingredients, nux vomica and yohimbine. But the focus of the testimony concerning safety, as distinguished from effectiveness, was not on these ingredients but rather on the ingredient methyltestosterone. Dr. Emil Steinberger, a professor of medicine specializing in male reproductive biology, testified that liver inflammation and jaundice are possible side effects of methyltestosterone. While Dr. Stein-berger’s testimony did not directly state the dosage necessary to make such effects likely, he was aware of the dosage contained in Afrodex and, in addition, testified that liver disease was not but should have been listed on the labeling of Afrodex as a contraindication. These factors adequately demonstrate a connection between his testimony and the dosage contained in Afrodex. In addition to the evidence concerning liver damage there was specific testimony that a dosage of methyltestosterone even smaller than that contained in Afrodex could activate latent cancer of the prostate.

C. Contraindication in cases of “known or suspected malignancies”

The testimony, not disputed by claimant’s witnesses, that administration of methyltestosterone may activate latent cancer of the prostate, brings us to Ben-tex’s third claimed error. Bentex objects that the danger of such activation may not properly be considered in determining whether Afrodex is “generally recognized ... as safe for use under the. conditions prescribed, recommended, or suggested in the labeling thereof . . . ” since the label contains a contraindication of use in cases of “known or suspected malignancies.” But Dr. Scott’s testimony was to the effect that in four out of five cases a patient may have latent cancer of the prostate though not “known or suspected.” Consequently use of the drug in circumstances allowed by the label may create the danger of activation.

Claimant also suggests that the risk of activation is not limited to methyltestosterone but results equally from the administration of any similar androgen replacement and that administration of such replacements, including methyl-testosterone, is recognized as useful and proper therapy in cases of androgen deficiency and has in fact been so recognized through notice in the Federal Register by the FDA itself. The relevance of this attack to the issue of general recognition of safety is questionable, but we need not dismiss it on that basis. Testimony by numerous government witnesses, notably Dr. Schoolar, indicated that the vast majority of cases of impotence were psychogenic in origin and that in such cases androgen replacement therapy through administration of meth-yltestosterone was not a beneficial treatment since there was no androgen deficiency to begin with. The District Court specifically found that the indicated uses of Afrodex were not limited to cases of • androgenic deficiency. Dr. Grollman under cross-examination by the claimant’s counsel testified that a general practitioner would not read the labeling of Afrodex as limiting its recommended uses to cases of androgen deficiency. His testimony was borne out by testimony of several practicing physicians appearing as witnesses for the claimant who testified that they believed Afrodex to be indicated for treatment of impotence unrelated to androgen deficiency and, in at least one instance, believed it to be indicated for neurasthenia unaccompanied by impotence. See 347 F.Supp. at 775-776. There is then testimony that Afrodex is a drug which, according to claimant’s witnesses, is indicated for use in circumstances where, according to the government’s witnesses, it has no therapeutic value. Also there is testimony that its use generates a risk of activating a latent carcinoma which is common, difficult to detect, and typically undetected. This combined testimony undergirds the conclusion drawn by the government’s witnesses and the District Court that administration of Afrodex, which includes a meth-yltestosterone component, is not now and never has been “generally recognized among experts qualified by scientific training and experience to evaluate the safety of drugs as safe for use under the conditions prescribed, recommended or suggested in the labeling thereof if

D. The meaning of the label

Bentex attempts through a rather artificial construction of the wording of the label to limit the label’s recommended uses for Afrodex to cases involving androgen deficiency and asserts that the District Court erred by “applying meanings to the uses indicated other than those intended by the label.” No matter what Bentex or the inanimate label may have intended, we have already noted that medical witnesses on both sides read the label as recommending use in cases beyond those involving androgen deficiency. Their testimony provided ample support for the meanings found by the District Court.

•X- *x* *x-

Claimant’s arguments, with the possible exception of the first, are without merit. And even assuming that claimant is correct in its first contention, the decision of the District Court was amply justified on the ground that at least one of the individual ingredients of Afrodex is not now and was not in 1962 generally recognized as safe for use in the conditions recommended on the labeling of Afrodex.

Affirmed.

      . The “grandfather clause” provides:
      In the case of any drug which, on the day immediately preceding the enactment date [October 10, 1962], (A) was commercially used or sold in the United States, (B) was not a new drug as defined by section 201 (p) [21 U.S.C. § 321(p) ] of the basic Act as then in force, and (C) was not covered by an effective application under section 505 [21 U.S.C. § 355] of that Act, the amendments to section 201 (p) [21 U. S.C. § 321 (p) ] made by this Act shall not apply to such drug when intended solely for use under conditions prescribed, recommended, or suggested in labeling with respect to such drug on that day.
      Footnote to 21 U.S.C.A. § 321.

      . The government argues that we have previously determined this premise to be unfounded and the statement of the District Court to be correct by our affirmance “for the reasons set out in the district court’s opinion” in United States v. Article of Drug . Furestrol Vaginal Suppositories, 415 F.2d 390 (CA5, 1969), affirming 294 F. Supp. 1307 (N.D.Ga.1968). In that case the drug in question was composed of two active ingredients, both of which were individually generally recognized as safe and effective for certain uses. One of these ingredients, however, was not generally recognized as safe and effective for the uses specified on the labeling of the combination drug, and testimony concerning the safety and efficacy of this ingredient in the labeled use formed the basis for concluding that the combination was a “new drug.” Thus, contrary to the government’s contention, the case does not support the proposition that as a matter of law general recognition of safety of a combination drug in its labeled uses may not in any case be demonstrated from general recognition of safety of its constituent ingredients in those same uses.

      . Similarly the testimony of the other government witnesses reveals that each was aware of the dosage.

      . This testimony was corroborated by the testimony of Dr. Joseph Schoolar, a professor of pharmacology and psychiatry, who testified that liver disease was a generally recognized side effect of methyltestosterone.

      . The attack’s relevance is questionable because its basis may be that even though administration of methyltestosterone carries with it a risk, taking that risk may be justified in certain instances because of the benefits expected. Thus even if methyltestos-terone is recognized as a useful and proper therapy in some cases, it does not follow that it is generally recognized by qualified experts as safe. To conclude otherwise would put courts into the business of making sophisticated risk versus benefit evaluations of actual safety better left to the FDA. Gf. Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235, 242-243 (1973).

      . The label of Afrodex recommends its use in the conditions of “hypogonadal impotence and/or male climacteric; neurasthenia.” The District Court made the following findings with regard to the meaning of these terms.
      “Hypogonadal impotence is impotence caused by insufficient functioning of the testes to secrete testosterone, that is, impotence caused by androgen deficiency. Male climacteric is a somewhat outdated, decidedly controversial term used variously to describe (1) an organically caused condition in the male analogous to menopause in the female brought about by a sudden drop of androgen production, or (2) a condition systemic or psychogenic in origin characterized by hot flashes, irritability and impotence. In this sense, the term male climacteric does not indicate a decrease in androgen production. Neurasthenia, as used in the labeling of Afrodex, is an archaic, obsolete term used to describe a general condition of weakness or nervous fatigue. Testimony reflects that neurasthenia refers to symptoms rather than to specific diseases or malfunctions. The condition of neurasthenia is viewed as psychogenic in origin.”

      . Thus even if we assume that the weighing of risks versus benefits in this case is to some extent a task for courts rather than the FDA, see note 6, supra, balancing the asserted risk of activation against the asserted lack of benefit in cases not involving androgen deficiency would require the conclusion that Afrodex is not and never has been generally recognized as safe for its labeled uses.

      . The relevant wording and the District Court’s findings as to its meaning are quoted at note 7, supra. Bentex raised this objection in regard to the finding of a lack of general recognition of effectiveness, an issue which we find it unnecessary to address. However, since we have determined that the meaning of the label is relevant to general recognition of safety we believe it appropriate to address the objection.