author: COLEMAN, Circuit Judge:

text:
    Leonard Jerome BASTIDA, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, La. State Penitentiary, Respondent-Appellant.
    No. 73-2399
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 6, 1973.
    Rehearing and Rehearing En Banc Denied Jan. 14, 1974.

      Shirley G. Wimberly, Jr., Asst. Dist. Atty., La. Dept. of Justice, Crim. Div., G. Thomas Porteous, Jr., Asst. Atty. Gen., William J. Guste, Jr., Atty. Gen., S. J. Dileo, Jr., Sp. Counsel, Baton Rouge, La., for respondent-appellant.
    George M. Strickler, Jr., New Orleans, La. (Court-appointed), for petitioner-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   COLEMAN, Circuit Judge:

In this habeas corpus case the District Court granted Leonard Jerome Bastida habeas corpus relief, commanding the State of Louisiana either to retry him within 120 days or release him from custody. We reverse and remand with directions that the petition be dismissed.

Bastida had been convicted of armed robbery. The Supreme Court of Louisiana affirmed his conviction, State v. Bastida, 271 So.2d 854 (La., 1973).

Bastida attacked the validity of a search of his apartment. He claimed that although’the affidavit stated sufficient grounds to obtain a warrant for his arrest, it did not allege enough to give rise to probable cause for a search of his premises. Additionally, it was urged that even if probable cause had once existed the police waited too long to obtain the search warrant since nine days had elapsed between the receipt of the underlying information and the execution of the affidavit.

The affidavit for the search warrant was sworn to on April 17, 1972, and read as follows:

“On Friday, April 7, 1972, at about 9:00 PM, a white male named Eurie Marie, residing 600 Bellville, was the victim of an armed robbery which occurred at 4905 Canal St., on the above
date and time. Mr. Marie stated that he had received a phone call from a white female whom he knows as Tina Bacon. Mr. Marie stated that he knows this subject for about 10 years. Tina Bacon requested that Mr. Marie meet her at the Beachcorner Lounge, located in the 4900 block of Canal St., at 9:00 PM, stating that she wished to speak' to him. Mr. Marie stated that he left his residence to meet this female. At about 9:30 PM, Mr. Marie stopped his car in the 4900 block of Canal St., and at this time, Mr. Marie saw Tina Bacon sitting in the 4900 block of Canal St. with two Spanish type males. Mr. Marie got out of his car and at this time, he heard Tina Bacon tell the two white males ‘That’s him’. At this time, the two white males approached Mr. Marie and both subjects pulled knives and automatic pistols. Both subjects began to stab and cut Mr. Marie about the arms and body. One of the subjects removed Mr. Marie’s wallet containing $250.00 and both subjects fled on St. Anthony St. in a downtown direction. Mr. Marie then called the police. On Saturday, April 8, 1972, at about 8:00 PM, Det. Strada received a phone call from a confidential informer who has given him reliable information in the past, who stated to Det. Strada that a Spanish male namely, Leonard Basti-da, about 28 yrs. old, and another subject named Terry Morgan, WM, 24, had just told him about an armed robbery they committed Friday night, and that they cut the guy pretty bad and they thought he may have died. These two subjects stated to the informer that they had gotten about $200.00 from the subject. The informer also noticed that both of the subjects were carrying automatic pistols on them at this time. On Monday, April 10, 1972, Det. Strada went to the B of I and pulled a photograph of Leonard Bastida and along with five other photographs showed them to the victim of the Robbery, Mr. Marie. After looking through the photographs, Mr. Marie picked the photograph of Leonard Bastida and stated that this looks very much like one of the subjects who robbed him and stabbed him, but he is not positive from the photograph. On April 16, 1972, a photograph was obtained from the B of I of Terry Morgan and was shown to Mr. Marie along with other photographs. Mr. Marie picked the photograph of Terry Morgan and again stated that he thinks this is one of the subjects, but he is not sure. The informer stated to Det. Strada that Leonard Bastida is a narcotic addict and on the night the informer spoke with Bastida and Morgan, both of the subjects had heroin in their possession and stated that they were going to Bastida’s residence to shoot up. Bastida is also known by Det. Strada to be a narcotic addict as Det. Strada has known Bastida for about 12 years. For the above stated reasons, Det. Strada requests that this search warrant be signed giving permission to search the residence of Leonard Bas-tida for the above named property. On Tuesday, April 11, 1972, Mr. Marie came to the Detective Bureau and gave Det. Strada a photograph of a white female whom he stated is Tina Bacon. Mr. Marie stated he got the photograph from a school yearbook and he positively identified the photograph as Tina Bacon. Det. Strada’s informer stated that he knows Tina Bacon to be associated with Leonard Bastida and Terry Morgan.
“It should be noted that the above mentioned informer has given Det. Strada reliable information in the past that has resulted in the arrest and conviction of numerous felons about the city for crimes similar to this one, and also in the recovery of stolen property taken in these crimes.”

Upon this affidavit, a Judge of the Criminal District Court for Orleans Parish, Louisiana, on April 17, issued a search warrant for Bastida’s apartment and the warrant was executed that same day. The search turned up no pistol but it did discover unfired bullets and a home-made black leather holster such as could be used with an automatic pistol. These were the items which Bastida unsuccessfully sought in the state courts to suppress.

The habeas corpus Judge found that as of April ”8 there was probable cause for the search as to pistols, heroin, and narcotics paraphernalia. With this we agree.

The Court further held, however, that:

“The nine-day delay in application for the warrant removes any probable cause for the belief that the pistols, heroin, and narcotics paraphernalia would still be within the apartment on April 17th. The informer merely stated a basis for belief that the items sought would be in the apartment on April 8th. He made no statement that the items would remain there for as many as niné days.”

We are of the opinion that in so holding the District Court substituted its judgment for that of the issuing magistrate.

In issuing a search warrant the magistrate must .exercise his own judgment as to whether the facts alleged in the affidavit constitute probable cause for issuance of the warrant, he must act on the entire picture disclosed to him, he is entitled to use his common sense, and the courts have gone so far as to say that when this is done his determination is conclusive in the absence of arbitrariness, Coury v. United States, 6 Cir., 1970, 426 F.2d 1354; United States v. Pascente, 7 Cir., 1967, 387 F.2d 923, cert, denied 390 U.S. 1005, 88 S.Ct. 1248, 20 L.Ed.2d 105; United States v. Serao, 2 Cir., 1966, 367 F.2d 347; United States v. Haskins, 6 Cir., 1965,. 345 F.2d 111. In Castle v. United States, 5 Cir., 1961, 287 F.2d 657, vacated for resent-encing, 368 U.S. 13, 82 S.Ct. 123, 7 L. Ed.2d 75, the Fifth Circuit specifically adhered to the conclusiveness rule in the absence of arbitrariness.

In this case, the reliable informant stated that on the day after the robbery Bastida and Morgan were still armed with automatic pistols and admitted that they committed the robbery. They feared that they had killed their victim but they had not thrown away their pistols. A very likely place to find them thereafter would either be on the persons of the assailants or about the premises where they lived. In any event, it was not unreasonable or arbitrary for the magistrate to find that there was probable cause to believe such to be the ease. It necessarily follows that a statement of the informer (repeated in the affidavit) that the pistols would “still be within the apartment on April 17” was not an indispensable prerequisite to the validity of the warrant issued in reliance upon its allegations.

In Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932), the Supreme Court first spoke to the issue of timeliness in a ease involving a search under the National Prohibition Act. The Court held:

“While the statute does not fix the time within which proof of probable cause must be taken by the judge or commissioner, it is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. Whether the proof meets this test must be determined by the circumstances of each case.” 287 U.S. at 210-211, 53 S.Ct. at 140.

The Fifth Circuit seems specifically to have considered this problem only once. In Dixon v. United States, 5 Cir., 1954, 211 F.2d 547, it was held that a four day delay between the ascertainment of probable cause and the issuance of the warrant was not fatal.

Dixon was a moonshine whiskey case. The affidavit for the search warrant was executed four days after the affiant had seen Dixon handling some jugs and had drunk some of the whiskey. The Court wrote:

“Appellant further contends that since the affidavit was executed on May 23, 1952, as to possession and concealment on May 19, 1952, that the lapse of four days operated to render the warrant ineffectual, since, non constat, the whiskey might have been removed or consumed. But it was held in United States v. Old Dominion Warehouse, 2 Cir., 10 F.2d 736, that the lapse of nine days between the observed offense and the search did not invalidate the warrant; in United States v. McKay, D.C., 2 F.2d 257, and in Hawker v. Queck, 3 Cir., 1 F.2d 77, respectively, that 12 days and 21 days between the offense and the affidavit was not too long; and in United States v. Liebrich, D.C., 55 F.2d 341, that 14 days between the offense and the issuance of the warrant was not fatal. In Dandrea v. United States, 8 Cir., 7 F.2d 861, relied upon by appel-ant, in which the warrant was" invalidated, 42 days had elapsed.”

A number of the other Circuits have confronted situations similar to the one now before us. In general, the basic criterion as to the duration of probable cause is the inherent nature of the crime. The Circuits hold that where an affidavit recites a mere isolated violation then it is not unreasonable to believe that probable cause quickly dwindles with the passage of time. On the other hand, if an affidavit recites activity indicating protracted or continuous conduct, time is of less significance, United States v. Johnson, 10 Cir., 1972, 461 F. 2d 285; United States v. Mustone, 1 Cir., 1972, 469 F.2d 970; Durham v. United States, 9 Cir., 1968, 403 F.2d 190; and Rosencranz v. United States, 1 Cir., 1966, 356 F.2d 310.

Upon consideration of the foregoing cases, and remembering that in Sgro, supra, the Supreme Court said that the determination of timeliness as an element in probable cause must be “determined- by the circumstances of each case”, we recognize that this alleged robbery was not a continuing offense but it is equally true that the pistols were most likely to remain as continuing articles. They were not liable to the evaporation or consumption that ordinarily befalls whiskey, the subject of the search in Dixon, supra.

Thus, there is no substantial reason under the circumstances of this case to say as a matter of federal constitutional law that the nine day interval defeated the reasonable probability that the pistol or pistols used in the robbery were at Bastida’s quarters.

The Judgment of the District Court is reversed and the cause is remanded with directions to dismiss the petition.

Reversed and remanded with directions.

      . “The informer did state, however, that on April 8, he observed automatic pistols and heroin in the possession of Bastida and Morgan, and further, that he knew it was the intention of Bastida and Morgan to go to Bastida’s apartment on April 8 to shoot heroin. Such statement, coupled with the victim’s description of the use of pistols in the robbery, and coupled with the detective’s corroboration of the fact of Bastida’s narcotics addiction sufficiently set forth facts upon which a neutral and detached magistrate could find probable cause for the issuance of a warrant to search the apartment on April 8.” Bastida v. Henderson, No. 73-312 at 4 (E.D. La., 1973).

      . The District Court (Appellate Appendix, 7-8) further held “the affidavit is entirely devoid of any factual basis for believing that rifles, barbiturates, amphetamines, marijuana, knives, or stolen credit cards could be located within Bastida’s apartment”. This, of course, is a immaterial issue as no such items were introduced in evidence against the defendant.


source: Caselaw Access Project

author: TIMBERS, Circuit Judge:

license: Public Domain

text:
    AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Data Transmission Company et al., Intervenors.
    No. 1115, Docket 73-1806.
    United States Court of Appeals, Second Circuit.
    Argued Aug. 17, 1973.
    Decided Oct. 19, 1973.

      Hugh B. Cox, Washington, D. C. (Michael Boudin, Washington, D. C., J. Hugh Roff, Jr., Alfred C. Partoll, F. Mark Garlinghouse and Harold J. Cohen, New York City, on the brief), for petitioner American Telephone and Telegraph Company.
    Joseph A. Marino, Counsel, FCC, Washington, D. C. (John W. Pettit, Gen. Counsel, and Philip V. Permut, Counsel, FCC, Washington, D. C., on the brief), for respondent FCC.
    Thomas E. Kauper, Asst. Atty. Gen., and Howard E. Shapiro, Atty., Dept, of Justice, Washington, D. C., for respondent United States.
    William J. Byrnes, Washington, D. C. (Michael H. Bader, John Wells King and Haley, Bader & Potts, Washington, D. C., on the brief), for intervenors Microwave Communications, Inc. and MCI Telecommunications Corp.
    Joseph M. Kittner, Washington, D. C. (Edward P. Taptich, Norman P. Leven-thal, Joseph DeFraneo, Howard Monderer and McKenna, Wilkinson & Kittner, Washington, D. C., Robert J. Kaufman, New York City, on the brief), for inter-venors American Broadcasting Companies, Inc., Columbia Broadcasting System, Inc. and National Broadcasting Co., Inc.
    William B. Lawless, New York City (Mudge Rose, Guthrie & Alexander, New York City, on the brief), for inter-venor National Easter Seal Society for Crippled Children and Adults.
    Michael L. Glaser, Francis E. Fletcher, Jr. and Glaser & Fletcher, Washington, D. C., John M. Scorce, Vienna, Va., for intervenor Data Transmission Co.
    Louis L. Hoynes, Jr., Robert J. Kheel, Alexander H. Hadden and Willkie, Farr & Gallagher, New York City, Paul A. Porter, James F. Fitzpatrick, Gary G. Gerlaeh and Arnold & Porter, Washington, D. C., for intervenor Commissioner of Baseball.
    E. William Henry and Ginsburg, Feldman & Bress, Washington, D. C., for intervenor UPITN Corp.
    Before MANSFIELD, MULLIGAN and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

On this petition by American Telephone and Telegraph Company (AT&T) to review that part of an order of the Federal Communications Commission (Commission) which denied special permission to file occasional user tariff revisions applicable to AT&T’s private line service for transmission of television programs, the principal issue is whether the Communications Act of 1934 (the Act) authorizes the Commission to require AT&T to obtain special permission prior to filing such revised tariffs. We hold that it does not.

We grant the petition to review and we set aside the order to the extent that it denies special permission to AT&T to file its occasional user tariff revisions. We also direct the Commission to accept the tariffs in question without further delay and to permit AT&T to place its proposed new rates in effect immediately.

I.

A brief summary of prior proceedings in the context of the Commission’s pending investigation of AT&T’s rate structure is believed necessary to an understanding of our rulings on the legal issues raised by the instant petition.

In 1965, the Commission initiated an investigation of AT&T’s rate levels and rate structure. The purpose of the investigation in part was to determine appropriate? ratemaking principles and factors which should govern rate limits for each of the principal categories of service provided by AT&T. Docket No. 16258, 2 F.C.C.2d 871 (1965), reconsideration denied, 2 F.C.C.2d 173 (1965). Specifically, in Phase I-B of this Docket, the Commission was concerned with the rates charged by AT&T for its “competitive” services, such as private line service, and the rates charged for “non-competitive” services, such as long distance message telephone service. The Commission was particularly concerned as to whether the latter were subsidizing the former.

In 1968, AT&T filed a revised tariff providing for an increase in rates for its competitive private line telephone and telegraph services. On April 12, 1968, the Commission suspended the effectiveness of the revised rates and ordered an investigation into their lawfulness. Docket No. 18128, 12 F.C.C.2d 1028 (1968) . Ultimately, the record of Phase I-B of Docket 16258 was incorporated into Docket 18128. 18 F.C.C.2d 761 (1969) . In October 1969, hearings were ordered to commence. 20 F.C.C.2d 383 (1969).

Going back for a moment, in January 1968, after a trial type hearing, the Commission issued an initial decision that AT&T rates for contract and occasional users of the television transmission service were unjust, unreasonable and discriminatory within the meaning of Sections 201(b) and 202(a) of the Act, 47 U.S.C. §§ 201(b), 202(a) (1970). AT&T was ordered to file a new tariff. Hughes Sports Network, 25 F.C.C.2d 550 (1970), aff’d in part, 34 F.C.C.2d 641 (1972), reconsideration denied, 38 F.C.C.2d 1052 (1972), petition to review pending, No. 73-1216 (2 Cir. 1973). After AT&T filed a new tariff pursuant to the initial decision in Hughes, the Commission suspended it and ordered a hearing to investigate it. Docket No. 18684, 19 F.C.C.2d 1083 (1969). On June 10, 1970, Dockets 18128 and 18684 were consolidated. 23 F.C.C.2d 503 (1970).

During the pendency of the proceedings in these dockets, AT&T continued to file rate changes pursuant to Section 203 of the Act, 47 U.S.C. § 203. At first, when AT&T filed such rate changes, the Commission in some instances chose to suspend them for the statutory three month period and consolidated the investigations of the new rates into Dockets 18128 and 18684. This was done, for example, in an order acting upon a tariff filed by AT&T in December 1971 revising its rates for some private line services. 33 F.C.C.2d 522 (1972). At the conclusion of its opinion on this tariff, however, the Commission stated that “any further tariff revisions relating to the services under investigation will unduly disrupt or delay the conclusion of the case" in Dockets 18128 and 18684. It therefore provided in paragraph 11 of its order as follows:

“IT IS FURTHER ORDERED, That, in order to best conduce to the proper dispatch of the Commission and to the ends of justice, pursuant to Section 4(j) of the Communications Act of 1934, as amended, Respondents shall file no further tariff revisions relating to the services under investigation in Docket Nos. 18128 and 18684 prior to the entering of a final decision therein unless authorized by special permission of the Commission.” 33 F.C.C.2d at 525.

AT&T filed a petition for reconsideration alleging that the special permission requirement was contrary to the statutory plan of the Act. The Commission on July 17, 1972 denied reconsideration and reasserted its claimed authority to issue the original order. 36 F.C.C.2d 484 (1972). The Commission also stated that, since in its view the services at issue in Dockets 18128 and 18684 embrace all of the principal services provided by AT&T, special permission would have to be sought for all major rate changes in these services. Furthermore, to assure expedition of AT&T’s requests, the Commission ordered that proposed rate changes “be acted upon within thirty days from the date of receipt”. AT&T did not seek review of this decision.

On October 16, 1972, AT&T filed Application Number 903* requesting special permission to file tariff revisions applicable to its television program transmission service. It sought to increase rates charged occasional users and to decrease rates charged contract users. The Commission did not act on this request within thirty days, as it had indicated in its order of July 17,1972.

Seven months after the application was filed — on May 15, 1973 — the Commission issued the order which is the subject of the instant petition to review. 40 F.C.C.2d 901 (1973). The order granted AT&T special permission to file contract user tariff revisions, but denied special permission, at that time, to file occasional user tariff revisions. The theory of the Commission’s refusal to permit the filing of occasional user tariff revisions was that such filing would disrupt and delay the resolution of Dockets 18128 and 18684. The Commission also stated that, if the occasional rate proposals were filed,

“questions would be raised as to the lawfulness thereof, particularly with respect to our decision in Hughes Sports Network, Inc.; and, in view of the magnitude of the increases as to individual customers, it is questionable whether an accounting order with provision for possible refunds, would be an adequate safeguard of the rights of occasional users if we should later find the occasional rates to be unlawfully high.” 40 F.C.C.2d at 903.

In the order under review, the Commission also stated that in Dockets 18128 and 18684 it would expedite resolution of the question of what the rate structure should be for program transmission service and that it would try to decide the issue within four months. The order provided that, if the issue were still unresolved after 120 days, i. e. by September 12, 1973, AT&T could then file the revised occasional user tariffs on 60 days notice. Such tariffs would then be subject to suspension under Section 204 for an additional three months beyond the 60 days notice period.

On May 25, 1973, AT&T filed its petition to review the order in question, invoking the jurisdiction of this Court pursuant to 28 U.S.C. §§ 2342(1), 2343 and 2344 (1970). On May 31, upon application of AT&T, we ordered an expedited review.

II.

With this background of prior proceedings in mind, we turn directly to the legal issues raised by the petition to review.

At the outset we wish to make clear what is not involved. Despite the claims of certain of the intervenors, there is no issue before us with respect to the legality of AT&T’s proposed tariff revisions. The Commission has made no determination as to their validity. The sole issue before us is a procedural one.

AT&T argues that the Commission’s order refusing it permission to file occasional user tariff revisions is invalid because the special permission requirement upon which the order is based is inconsistent with the statutory plan of the Act and is contrary to judicial precedent defining the scope of agency authority under the Act and comparable regulatory statutes. AT&T also urges that the order be set aside because its underlying premise — that new tariff filings may disrupt or delay pending investigations — is unsupported by findings and is inconsistent with the Act. Alternatively, AT&T argues that the order is void because it is arbitrary and internally inconsistent.

The Commission, on the other hand, argues that the Act authorizes it to postpone temporarily the filing of a tariff revision to avoid disrupting or delaying a consolidated inquiry intended to develop general ratemaking principles to be applied in processing such tariffs; and that under the circumstances of this case the Commission properly exercised its authority temporarily to postpone the filing of the tariff revision in question.

A. COMMUNICATIONS ACT OF 1934

The Communications Act of 1934, 47 U.S.C. § 151 et seq. (1970), does not require carriers to obtain the approval of the Commission before making changes in their rates. Carriers may initiate rate changes by filing new tariffs with the Commission. Section 203. Such rates may become effective after a specified notice period. Id. The Commission may investigate the lawfulness of newly filed rates and suspend their effectiveness for up to three months. Section 204. After this three month period, the rates become effective by operation of law pending the outcome of the investigation. Id. The carrier, however, may be required to keep account of increases collected so that refunds may be made if the new rates are found to be unjustified. Id,

In addition, after a full investigation and hearing, the Commission has the authority to determine the lawfulness of either newly filed or previously established rates and in certain instances to prescribe new rates. Section 205.

Since the Act itself does not require prior Commission permission to file new rates, the validity of the order under review turns upon the legality of the special permission requirement. If the Commission had no authority other than that conferred by statute to impose this special requirement, then its order refusing to permit AT&T to file its occasional rate increases is invalid and must be set aside.

We hold that the order must be set aside because the imposition of the special permission requirement is contrary to the statutory plan and cannot be justified by prior judicial decisions.

B. COMMISSION’S VIOLATION OF STATUTORY PLAN

The Commission maintains that the special permission requirement is justified by its broad inherent power to regulate communications carriers and by Sections 1, 4(i), 4(j), 203(b) and 403 of the Act, 47 U.S.C. §§ 151, 154(i), 154(j), 203(b) and 403 (1970). The Commission further asserts that prior judicial decisions establish its authority to promulgate the order under review. We disagree.

We start with the proposition that Congress, rather than purporting “to transfer its legislative power to the unbounded discretion of the regulatory body”, FCC v. RCA Communications, Inc., 346 U.S. 86, 90 (1953), intended a specific statutory basis for the Commission’s authority. We also are mindful that Congress, in enacting the carrier initiated rate filing provisions of the Act, struck'a “careful balance of interests”, United States v. SCRAP, 412 U.S. 669, 697 (1973), and intended that specific statutory authority, rather than general inherent equity power, should provide the agency with its governing standards.

The Commission argues that, in addition to the authority prescribed by the detailed statutory scheme, its power to regulate the communications industry is sufficiently comprehensive to validate this type of rate freeze. It urges, on the basis of its inherent power to achieve its ultimate purpose, that it can refuse AT&T permission to file its rate increases because they involve not only traditional common carrier concerns for the Commission but “also could have a detrimental impact upon local broadcasting, and endanger the viability of independent non-network producers, the occasional users of AT&T’s service.”

While we agree with the Commission that its mandate is comprehensive, see National Broadcasting Co. v. United States, 319 U.S. 190, 219 (1943); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940), and that in dealing with communications carriers it must be mindful of its responsibilities in the broadcasting field, cf. Carter Mountain Transmission Co. v. FCC, 321 F.2d 359, 362 (D.C.Cir.) cert, denied, 375 U.S. 951 (1963), we nevertheless reject its claim that by virtue of its broad power to regulate the entire communications and broadcasting industries the Commission may require a carrier to obtain permission prior to filing tariff revisions.

Sections 203 through 205 of the Act, referred to above, establish precise procedures and limitations concerning the Commission’s processing of carrier initiated rate revisions. In a recent decision interpreting a cognate provision of the Interstate Commerce Act, 49 U.S.C. § 15(7) (1970), the Supreme Court stated that this type of statutory scheme “represents a careful accommodation of the various interests involved.” United States v. SCRAP, supra, 412 U.S. at 697. There the Supreme Court held that the courts could not enjoin the effectiveness of newly filed rates — a surcharge tariff — after the Interstate Commerce Commission had declined to suspend the effectiveness of such rates for the maximum permissible period. The Court described the statutory accommodation achieved by the rate filing provisions as follows:

“The suspension period was limited as to time to prevent excessive harm to the carriers, for the revenues lost during that period could not be recouped from the shippers. On the other hand, Congress was aware that if the Commission did not act within the suspension period, then the new rates would automatically go into effect and the shippers would have to pay increased rates that might eventually be found unlawful. To mitigate this loss, Congress authorized the Commission to require the carriers to keep detailed áccounts and eventually to repay the increased rates if found unlawful. To allow judicial suspension for non-compliance with NEPA would disturb this balance of interests.” 412 U.S. at 697.

Similarly, in Arrow Transportation Co. v. Southern Railway Co., 372 U.S. 658 (1963), where it was held that a district court could not further delay the effectiveness of new rates once the maximum suspension period authorized by statute and invoked by the ICC had expired, the Supreme Court recognized the compromise Congress had attempted to achieve by granting to the ICC a suspension power for a limited period of time.

Thus, in both SCRAP and Arrow, while the issue was the judiciary’s role in the rate making process, the Court recognized the careful accommodation of interests upon which the regulatory scheme was based, including the limitation as to time imposed upon the suspension power granted to the ICC.

In light of the Supreme Court’s interpretation of analogous provisions of the Interstate Commerce Act, it is abundantly clear to us that the statutory scheme of the Communications Act reflects the realization of Congress that when a carrier is prevented from placing in effect new rate increases it may suffer irreparable loss which in turn may impede the provision of adequate service during a period of rising costs.

In addition to the suspension provision of Section 203, the controls upon Commission action provided in Section 205 further point strongly toward the conclusion that the special permission requirement cannot be justified on the basis of the Commission’s inherent power to regulate the communications and broadcasting industries. Section 205 (a) authorizes the Commission “to determine and prescribe” lawful rates. As we have recognized, however, “[t]hat authority is not unlimited.” American Telephone and Telegraph Co. v. FCC, 449 F.2d 439, 450 (2 Cir. 1971). The Commission may prescribe a rate only after a “full opportunity for hearing” and after determining that the rate to be prescribed will be “just and reasonable”. Section 205(a). Such a hearing and finding are essential to any exercise by the Commission of its authority under Section 205(a). American Telephone and Telegraph Co. v. FCC, supra, 449 F. 2d at 450. True, the Commission in denying the petition for reconsideration of the special permission requirement in the instant case emphasized that “we are not hereby prescribing rates”. 36 F.C.C. 2d at 487. We held, however, in American Telephone and Telegraph Co. v. FCC, supra, 449 F.2d at 451 & n. 12, that to determine whether rates have been prescribed the actual impact of agency action and not its form is decisive.

What is determinative in the instant case is the incontrovertible fact that the special permission provision under review has the same effect as a Section 205 rate prescription. It compels the carrier to adhere to a fixed rate which can be revised only with prior Commission permission. Section 205 provides, however, that before the Commission can exercise that authority hearings must be held and the prescribed rates must be found just and reasonable. To permit the Commission to achieve the same result as it would, pursuant to a Section 205 rate prescription, by circumventing the statutory hearing and finding requirements on the basis of its claimed broad inherent regulatory power, would defeat the purpose of Section 205 and vitiate the specific statutory scheme. Under the circumstances of this case, we see no difference between a “prescription” of new rates and a “freeze” of old rates. There is no regulatory authority granted to the Commission by virtue of its power to regulate the communications and broadcasting industries which permits it to circumvent the statutory plan of carrier initiated rate changes, a limited suspension period, rate refunds and rate prescriptions only after a full hearing and specific findings.

United States v. Southwestern Cable Co., 392 U.S. 157 (1968), is not to the contrary. There the Supreme Court sustained the FCC’s authority to regulate the emerging community antenna television industry (CATV) and to prohibit expansion of CATV systems’ carriage of distant signals pending completion of certain hearings. The Commission argues that the validation in Southwestern of its maintenance of the status quo — i. e. its order prohibiting expansion pending a determination of “whether respondents’ present or planned CATV operations are consistent with the public interest and what, if any, action should be taken by the commission”, 4 F.C.C.2d 612, 626 (1966) — requires us to validate a similar freeze in the instant case. We reject this argument as lacking -in merit. The primary issue in Southwestern was whether the authority granted to the FCC to regulate “all interstate . . . communication by wire or radio”, 47 U.S.C. § 152(a) (1970), authorized the Commission to regulate the CATV industry. See 392 U.S. at 173-78. Congress had made no provision for CATV regulation. After upholding the Commission’s regulatory authority to the extent “reasonably ancillary” to its responsibilities with respect to the regulation of television broadcasting, id. at 178, the Court held that maintenance of the status quo pending determination of the ultimate course of action was not improper. Id. at 178-81.

Since procedures and limitations for ancillary regulation of the CATV industry had not been provided for in the statute, the issue before the Court in Southwestern was significantly different from that in the instant case. In upholding the Commission’s order in Southwestern, the Court did not condone circumvention of statutorily prescribed procedures with consequent frustration of the statutory purpose. In the instant case, however, if the special permission requirement were to be justified by the Commission’s general broadcasting regulation authority, the statutory plan for communications carrier rate regulation would be destroyed. The provisions of Sections 203 and 204 for notice and a limited period of suspension, as well as the prescription requirements of Section 205, would become superfluous if a carrier must seek Commission . permission prior to filing rate revisions.

Similarly, cases relied on by the Commission upholding its authority to impose “freezes” on the filing of license applications for broadcasting stations pending adoption of new rules, e. g., Kessler v. FCC, 326 F.2d 673 (D.C.Cir. 1963); cf. United States v. Store Broadcasting Co., 351 U.S. 192 (1956), are in-apposite. The upholding of Commission moratoria on the processing of broadcast license applications strikes us as wholly unpersuasive, for the type of restrictions provided for in Sections 203-205 of the Act are not applicable to the license application cases. See, e. g., 47 U.S.C. § 309 (1970).

We hold that to permit the imposition of a special permission requirement on the basis of the Commission’s claimed broad inherent power to regulate the communications and broadcasting industries would frustrate the specific Congressional purpose sought to be achieved by the, Act’s precise statutory scheme.

C. COMMISSION’S CLAIM OF STATUTORY AUTHORITY

Having held that the Commission’s general authority and inherent regulatory power over the communications and broadcasting industries do not authorize the special permission requirement of the order under review, we turn now to the Commission’s claim that such order is authorized by specific sections of the Act. The Commission claims that Sections 4(i), 4(j), 203(b) and 403 of the Act, 47 U.S.C. §§ 154(i), 154(j), 203(b) and 403 (1970), authorize the special permission requirement of the order under review. We disagree.

In general terms, Section 403 empowers the Commission to conduct inquiries. on its own motion; Sections 4(i) and 4(j) give it authority to issue orders and to conduct proceedings necessary to the execution of its functions and the proper dispatch of its business. The Commission argues that these provisions should be interpreted to uphold its authority to issue the order under review. Its argument rests essentially upon the Supreme Court’s decision in Permian Basin Area Rate Cases, 390 U.S. 747 (1968), and on the rule that courts should defer to the informed experience and judgment of the agency to which Congress has delegated the administration of a statute. E. g., Mourning v. Family Publications Service, Inc., 411 U.S. 356, 371-72 (1973).

In upholding the authority of the Federal Power Commission in Permian to adopt a system of area rate regulation and to impose supplementary requirements including a moratorium on the filing of proposed rates higher than those determined by the FPC to be just and reasonable, the Supreme Court stated, “[w]e are, in the absence of compelling evidence that such was Congress’ intention, unwilling to prohibit administrative action imperative for the achievement of an agency’s ultimate purpose.” 390 U.S. at 780. The Commission urges, since its purpose is the regulation of the communications industry and since the special permission requirement is necessary to achieve that purpose, that we should uphold the Commission’s interpretation of the Act and sustain the order under review upon the strength of the Permian decision alone. We reject this argument as erroneous on two grounds.

First, Permian involved an issue entirely different from that in the instant case. There the moratorium on rate changes by gas companies was imposed after the FPC had prescribed agency made rates pursuant to its prescription power, i. e. after a full hearing and a determination that the prescribed rate was just and reasonable. 390 U.S. at 777-79. Here the Commission specifically has disavowed any intention to prescribe rates. 36 F.C.C.2d at 487. See note 20, supra. The Court in Permian obviously was addressing itself to a significantly different issue than that before us in the instant case.

Second, the interpretation ascribed by the Commission to the provisions of the Act in question does not withstand scrutiny. Section 4(j) relates only to the procedural conduct of the Commission’s business. It does not empower the Commission to circumvent' the statutory scheme for filing new tariffs. In FCC v. Schreiber, 381 U.S. 279 (1965), the Supreme Court referred to Section 4(j) (as it had earlier in FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940)) as ‘“explicitly and by implication’ delegating to the Commission power to resolve ‘subordinate questions of procedure . . . [such as] the scope of the inquiry, whether applications should be heard contemporaneously or successively, whether parties should be allowed to intervene in one another’s proceedings, and similar questions.’ ” 381 U.S. at 289. Cf. Federal Broadcasting System v. FCC, 225 F.2d 560, 566 (D.C.Cir.), cert, denied, 350 U.S. 923 (1955). Moreover, while Section 403 authorizes the Commission to institute inquiries on its own motion and confers the same “powers” as if the inquiries had been commenced by complaint or petition, it does not warrant disregard of Sections 203-05. Rather, in exercising authority pursuant to Sections 4(i), 4(j) or 403, the Commission’s action must not be inconsistent with Sections 203-05.

Furthermore, the Commission’s claim that Sections 4(i) and 4(j) support the special permission requirement of the order under review is inconsistent with the rationale and holding of Willmut Gas & Oil Co. v. FPC, 294 F.2d 245 (D.C. Cir.1961), cert, denied, 368 U.S. 975 (1962). Willmut involved an appeal from an order of the FPC which refused to reject a tariff revision filed by a wholesaler of natural gas. Pursuant to the rate filing provisions of the Natural Gas Act, which are similar to those of the Communications Act, the wholesaler had filed annual tariff revisions during the period 1955 to 1960 increasing the price to Willmut, a local distributor. Each rate revision had been filed, and then had become effective after being suspended for the maximum statutory period. Meanwhile, the FPC was investigating the 1955 increase. Before the hearing on the 1960 increase had begun, Willmut petitioned the Commission to reject it. The Commission denied the petition. Willmut appealed and argued inter alia that the new filings would frustrate the pending investigation of prior rates and that the Commission could and should have rejected the tariff modifications. 294 F.2d at 246-49. The Court of Appeals for the District of Columbia Circuit rejected these contentions. It held that the Commission had authority notwithstanding subsequent rate revisions to continue its pending investigation “as to whether the rates previously filed were lawful for the period from the date of filing until they were superceded by a later filing, and to order a refund . . . .’’Id. at 249.

The court also held that:

“Section 4(d) of the [Natural Gas] Act does not give the Commission the discretion to reject schedules of increased rates tendered by a natural gas company .... The Commission’s power with respect to a filed increase is found in Section 4(e): to initiate a hearing as to the lawfulness of the changed rates, to suspend their effectiveness for a time, and to order refunded that portion of the increase which, after hearing, it determines to be unlawful. Thus the Act provides for investigation of changed rates which have been filed; but it does not contemplate that the Commission may refuse to file a tendered new schedule showing changes in rates, or that it may summarily reject or disallow the new schedule without a hearing.” 294 F.2d at 248-49.

The court further held that Section 16 of the Gas Act (the counterpart of Section 4(i) of the Communications Act) did not authorize the FPC to circumvent the rate making scheme set forth in Sections 4(d) and 4(e) of that Act. Cf. United Gas Pipe Line v. Mobil Gas Service Corp., 350 U.S. 332, 343 (1956).

Despite the square holding in Willmut —construing a statutory plan for company initiated rate changes similar to that under the Communications Act — that the FPC lacks the authority to “refuse to file a tendered new schedule showing changes in rates, or . summarily [to] reject or disallow the new schedule without a hearing”, the Commission in the instant ease nevertheless maintains that the special permission requirement of the order under review should be upheld. It argues that the statutory scheme of the Communications Act, particularly Section 203(b), is distinguishable from the Gas Act and does not preclude the special permission requirement.

The Commission, in denying the petition for reconsideration of its order with respect to the special permission requirement, stated:

“Section 203(b) furnishes this Commission with substantially greater latitude than that provided the Federal Power Commission by Section 4(d) [of the Natural Gas Act] with respect to tariff filing practices. Section 203(b) states: ‘ . . . the Commission may, in its discretion and for good cause shown, modify the requirements made by or under authority of this section in particular instances or by a general order applicable to special circumstances or conditions.’ No such grant of authority is conveyed by Section 4(d): that section merely permits the Federal Power Commission to allow tariff changes to take effect without thirty days notice; it does not authorize any other modification with respect to the filing requirement. In our judgment, the requirement of special permission represents a necessary and temporary filing modification in full conformance with Section 203(b).” 36 F.C.C.2d at 487.

We disagree.

In the first place, the legislative history of Section 203(b) indicates that Congress did not intend to give the FCC substantially greater latitude than was granted to the FPC by Section 4(d) of the Gas Act. Section 203(b) was patterned after Section 6(3) of the Interstate Commerce Act, 49 U.S.C. § 6(3) (1970), and ultimately provided the pa-tern for Section 4(d) of the Gas Act. The Senate Report on the proposed Communications Act stated that subsection (b) of Section 203 was “copied from section 6, [paragraph] (3), . . . of the Interstate Commerce Act.” S.Rep. No. 781, 73d Cong., 2d Sess. 4 (1934). The Senate Report also stated:

“In this bill many provisions are copied verbatim from the Interstate Commerce Act because they apply directly to communication companies doing a common carrier business, but in some paragraphs the language is simplified and clarified. These variances or departures from the text of the Interstate Commerce Act are made for the purpose of clarification in their application to communications, rather than as a manifestation of congressional intent to attain a different objective.” S.Rep. No. 781, swpra, at 2.

It is clear from the legislative history that Section 203(b) conferred no greater power in this . respect upon the . FCC than was granted to the ICC and the FPC under the statutes administered by them.

Furthermore, we think that a proper interpretation of Section 203(b) indicates that it does not authorize the Commission to circumvent statutory limitations upon its authority imposed by other sections of the Act. Since Section 203(b) only permits modification of “the requirements made by or under the authority of this section”, the Commission may not rely upon this section to circumvent the requirements of Sections 204 and 205 relating to the limitation of the suspension period and the prescription procedure. In short, under Section 203(b) the Commission may only modify requirements as to the form of, and information contained in, tariffs and the thirty days notice provision.

The Commission further argues that the three month maximum suspension provision of Section 204 does not preclude the special permission requirement. Its argument is based on Permian where the Supreme Court held that, although Section 4(e) of the Gas Act permits the FPC to suspend newly filed tariffs for a limited period of five months, a rate change moratorium is not precluded. We think that the Commission’s reliance on Permian is misplaced. There the Supreme Court stated:

“Certain of the producers urge that §§ 4 and 5 must in combination be understood to preclude moratoria upon filings under § 4(d). They assert that the period of effectiveness of a rate determination under § 5(a) [pursuant to prescription] is limited by § 4(e); they reason that § 4(d) creates an unrestricted right to file rate changes, and that such changes may, under § 4(e), be suspended for a period no longer than five months. If this construction were accepted, it would follow that area proceedings would terminate in rate limitations that could be disregarded by producers five months after their promulgation. The result, as the Commission observed, would be that ‘the conclusion of one area proceeding would only signal the beginning of the next, and just and reasonable rates for consumers would always be one area proceeding away.’ 34 F.P.C., at 228.” 390 U.S. at 779.

In Permian, however, the moratorium was invoked after the FPC had prescribed agency made rates pursuant to Section 5(a) of the Gas Act. The Court in sustaining the moratorium expressly relied upon this prescription authority. ■ 390 U.S. at 778-79. This is a far cry from the Commissfon’s claimed authority to impose the special permission requirement in the instant case while disclaiming any intention to prescribe rates.

Similarly, other cases relied upon by the Commission to justify the special permission requirement, e. g., United States v. Callery Properties, 382 U.S. 223, 227 (1965), are inapposite. They merely uphold the FPC’s authority to impose, as a condition to the granting of a new certificate of public convenience and necessity required for the sale of natural gas, limitations on the maximum rates. No such rate limitations are applicable to AT&T.

In enacting Sections 203-05 of the Communications Act, Congress intended a specific scheme for carrier initiated rate revisions. A balance was achieved after a careful compromise. The Commission is not free to circumvent or ignore that balance. Nor may the Commission in effect rewrite this statutory scheme on the basis of its own conception of the equities of a particular situation.

The ultimate effectiveness of newly filed tariffs does not preclude the Commission from completing a pending investigation of rates charged under tariffs that have been superceded. See Willmut Gas & Oil Co. v. FCC, supra, 294 F.2d at 249. Neither the filing nor the effectiveness of new rates renders moot a determination of the lawfulness of rates previously charged. The Commission may order a refund of the amounts collected during the period that the prior rates, if found to be unlawful, were in effect. Id. Significant questions of law and policy resolved in its adjudication of the old rates can be applied to its evaluation of the new ones. Furthermore, the Commission may prescribe rates which are “just and reasonable” ánd may require the latest tariffs filed to be adjusted to conform to such prescription. During the evaluation, the Commission may suspend the rate changes for the three month period and may further protect users by entering an accounting order for possible refunds. And of course the Commission has adequate resources to arrange its internal procedures and priorities so as to permit consideration of the relevant issues in the most efficacious manner. See American Lines v. Louisville & N. R.R., 392 U.S. 571 (1968); Associated Press v. FCC, 448 F.2d 1095 (D.C.Cir. 1971).

The ratemaking provisions of the Communications Act were intended to provide for orderly processing of proposed rate revisions. See United States v. SCRAP, supra, 412 U.S. at 697. In balancing the various interests involved, Congress provided the comprehensive statutory plan discussed above. The Commission is not authorized to circumvent this statutory scheme by making its own equitable adjustments.

We therefore hold invalid and set aside the Commission’s order to the extent that it denies special permission to AT&T to file its occasional user tariff revisions.

III.

Finally, since the action of the Commission already has delayed the filing and effectiveness of the occasional user tariff revisions substantially longer than the maximum notice and suspension periods provided by the Act, the Commission is ordered to accept such tariffs and to permit AT&T to place them in effect immediately under the procedure which the Act authorizes the proponent of a new tariff to follow at the termination of the three month suspension period. See Mississippi River Fuel Corp. v. FPC, 202 F.2d 899, 903 (3 Cir.), cert, dismissed, 345 U.S. 988 (1953).

Petition granted; order set aside to the extent it denies special permission to AT&T to file its occasional user tariff revisions applicable to its private line service for transmission of television programs; and Commission directed to accept such tariffs and to permit AT&T to place them in effect immediately.

      . 40 F.C.C.2d 901 (1973).
      The subject of the instant petition to review is the Commission’s memorandum opinion and order which was adopted May 9, 1973 and released May 15, 1973. In the interest of brevity, we refer to it hereinafter as the Commission’s “order”.

      . Private line service provides the user an exclusive channel for continuous communication between two or more places without the necessity of establishing a new connection for each message. Television program transmission service is a form of private line service offered by AT&T, principally to broadcasting networks and stations, for transmission of television programs between different stations or other locations. Under contract rates, the private line must be taken on a monthly basis; occasional rates are applicable where the user wishes to have the private line established for short or irregular periods.

      . Incorporation was required because in July 1969 the parties to Docket 16258 entered into a stipulation concerning the ratemaking principles and factors relevant to Phase I-B. Since that stipulation contemplated that “effective testing of the complex economic theories of costing and pricing which have been advanced in this record, and the reconciliation of opposing, or at least partially conflicting, views of expert witnesses, can best be accomplished by relating the principles advocated to specific rate proposals”, the Commission decided to utilize Docket 18128 for this purpose. 18 F.C.C.2d 761 (1969).

      . The statutory pattern, discussed more fully at pages 871-872, infra, provides for filing of new rates by carriers on their own initiative ; for Commission investigation of such rates and their suspension for three months, after which they become effective pending the outcome of the investigation; for carrier accounting of increases collected so that refunds can be made if the new rates are found unjustified; and for setting of new future rates by the Commission after investigation and full hearing.

      . After stating that its action was a “temporary and essential administrative measure, taken to deal with exigent circumstances, prior to a final decision on the merits”, 36 F.C.C.2d at 487, the Commission sought to justify its order on the basis that the filings made by AT&T since 1968 presented rate structure and rate component questions which were fundamentally intertwined with the fundamental issue of the rate level relationship among AT&T’s services involved in the consolidated proceedings. Therefore, the Commission stated that delay in resolving the consolidated proceedings because of the need to investigate the lawfulness of new tariff filings was unwarranted. 36 F.C.C.2d at 488. The Commission further emphasized tliat delay would result from investigation of new filings because “the resources of this Commission” were already “severely taxed” by the pendency of the consolidated proceedings. Id.

      . With respect to the contract tariff revisions, however, the Commission stressed that, “in allowing these contract rates to be filed and to become effective pending our decision, we are not approving or disapproving such rates and they will be subject to accounting requirement and possible refunds to the extent that they may cause any increases in charges to customers vis-a-vis either the presently effective rates or the pre-Oc-tober rates.” 40 F.C.C.2d at 902.

      . On June 26, 1973, the Commission denied petitions filed by various other parties seeking reconsideration of the May 15, 1973 order. 41 F.C.C.2d 457 (1973).

      . In its June 26, 1973 order, the Commission stated that “[n]o question of lawfulness was determined in our May 15, 1973, action either as to the monthly or the occasional rates.” 41 F.C.C.2d at 458.

      . Section 203(a) provides in relevant part that every common carrier shall file with the Commission and make available for public inspection schedules showing its rate charges when a through route has been established, and such schedules must give notice of their effective dates. Section 203(b) provides that “[n]o change shall be made in the charges, classifications, regulations, or practices which have been so filed and published except after thirty days’ notice to the Commission and to the public . . . Section 203(c) provides that no carrier shall participate in communications unless it has acted in accordance with the above scheme.

      . The provision of Section 203 (b) that rates filed may not become effective “except after thirty days’ notice” may be waived by the Commission. The Commission previously has extended the notice period from 30 to 60 days. See Amendment of Part 61 of the Commission’s Rules, 25 F.C.C.2d 957 (1970), reconsideration denied, 40 F.C.C.2d 149 (1973), petition to review pending sub nopi, American Telephone and Telegraph Co. v. FCC, No. 73-1758 (2 Cir. 1973).

      . Section 204 provides in relevant part:
      “Whenever there is filed with the Commission any new charge, classification, regulation, or practice, the Commission may either upon complaint or upon its own initiative without complaint, upon reasonable notice, enter upon a hearing concerning the lawfulness thereof; and pending such hearing and the decision thereon the Commission, . . . may suspend the operation of such charge, . . . but not for a longer period than three months beyond the time when it would otherwise go into effect; and after full hearing the Commission may make such order 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 within the period of the suspension, the proposed change . . . shall go into effect at the end of such period ; but in case of a proposed increased charge, the Commission may by order require the interested carrier or carriers to keep accurate account of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts are paid, and upon completion of the hearing and decision may by further order require the interested carrier or carriers to refund, with interest, to the persons in whose behalf such amounts were paid, such portion of such increased charges as by its decision shall be found not justified. ...”

      . This refund remedy is in addition to the rights retained by parties injured by allegedly unlawful rates to institute proceedings, either in court or before the Commission, to collect damages from the carrier. Sections 206-08.

      . Section 205(a) authorizes the Commission, if it is of the opinion that any charge of any carrier is or will be in violation of the Act, “to determine and prescribe what will be the just and reasonable charge . . . . ” Such determination may be made only “after full opportunity for hearing” upon a complaint or under an order made by the Commission on its own initiative. The Commission is further authorized to order that the carrier shall not “collect any charge other than the charge so prescribed, . . . .”

      . Section 1 of the Act, 47 U.S.C. § 151 (1970), states, inter alia, one of the broad purposes in creating the Commission :
      “For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, .to all the people of the "United States a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges . . . .”

      . 49 U.S.C. § 15(7), which is similar to corresponding provisions of the Communications Act, provides in pertinent part that whenever a new rate is filed with the ICC it may suspend the proposed rate change, pending a hearing, for a period not longer than seven months. The statute further provides that, if at the end of the seven month period the hearing to determine the legality of the suspended rate has not been concluded, the rate shall go into effect. The carrier, however, as under the Communications Act, may be required to keep an accurate account of the new rates collected and may be ordered to make refunds where appropriate.

      . SCRAP involved the filing of proposed freight rate increases by substantially all of the nation’s railroads pursuant to the carrier initiated rate filing scheme of the Interstate Commerce Act. The railroads sought a 2.5 percent surcharge on nearly all freight rates as an emergency measure to obtain increased revenues pending adoption of selective rate increases on a permanent basis. The ICC determined not to suspend the surcharge for the seven month period authorized by 49 U.S.C. § 15(7), ordered the proposed selective increases suspended for seven months, and permitted collection of the surcharge during this suspension period. SCRAP, an unincorporated association formed by law students to enhance the quality of the environment, claimed that the ICC orders were unlawful for failure to include a detailed environmental impact statement as required by Section 102 of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(c) (1970). The Supreme Court rejected this claim.

      . Portions of the Communications Act track the Interstate Commerce Act. See S.Rep. No.781, 73d Cong., 2d Sess. (1934) ; see page 879, infra.

      . Of. United Gas Pipeline Co. v. Memphis Gas Division, 358 U.S. 103 (1958), where the Supreme Court, in discussing the limited suspension provision granted to the Federal Power Commission, stated:
      “Business reality demands that natural gas companies should not be precluded by law from increasing the prices of their product whenever that is the economically necessary means of keeping the intake and outgo of their revenues in proper balance; otherwise procurement of the vast sums necessary for the maintenance and expansion of their systems through equity and debt financing would become most difficult, if not impossible.” 358 U.S. at 113.
      See United States v. SCRAP, supra, 412 U.S. at 697.
      Similarly, the loss sustained when an agency delays a rate reduction can be equally as damaging, for during the delay customers may turn elsewhere and be permanently lost to the carrier.
      Moreover, as was pointed out at oral argument in the instant case, if the tariff revisions here involved ultimately are found to be justified, AT&T would have no means of recovering what it would have received had it been permitted to file the rate revisions in accordance with the Act.

      . See note 13, supra.

      . In its order of July 12, 1972 denying the petition for reconsideration, the Commission stated:
      “We wish to emphasize that we are not hereby prescribing rates. A decision on whether to grant or deny a request for special permission would not constitute a determination with respect to the lawfulness of the proposed tariffs. It would rather represent a decision on whether it is in the interest of the public and in harmony with the need to protect the integrity of these proceedings to confront, at this late stage, the question of the lawfulness of still further tariff revisions. The decision, furthermore, would not be arbitrary, for [AT&T] would possess an equitable opportunity to justify submitted requests in accordance with the criteria we express herein.” 36 F.C.C.2d at 487.

      . In upholding the Commission’s order in Southwestern, the Supreme Court stated:
      “Such orders do not exceed the Commission’s authority. This Court has recognized that ‘the administrative process [must] possess sufficient flexibility to adjust itself’ to the ‘dynamic aspects of radio transmission,’ F. C. C. v. Pottsville Broadcasting Co., supra, at 138, and that it was precisely for that reason that Congress declined to ‘sterotyp[e] the powers of the Commission to specific details .’ National Broadcasting Co. v. United States, supra, at 219. And compare American Trucking Assns. v. United States, 344 U.S. 298, 311; R. A. Holman & Co. v. S. E. C., 112 U.S.App.D.C. 43, 47-48, 299 F.2d 127, 131-132. Thus, the Commission has been explicitly authorized to issue ‘such orders, not inconsistent with this [Act], as may be necessary in the execution of its functions.’ 47 U.S.C. § 154 (i). See also 47.U.S.C. § 303 (r). In these circumstances, we hold that the Commission’s order limiting further expansion of respondents’ service pending appropriate hearings did not exceed or abuse its authority under the Communications Act.” 392 U.S. at 180-SI.

      . In Southwestern, the Supreme Court held that the Commission’s order was not, in form or function, a cease and desist order that must issue only under 47 U.S.C. § 312 (b), (c) (1970). 392 U.S. at 179-80.

      . Section 403 gives the Commission “full authority and power” to institute inquiries on its own motion regarding any matter concerning which the Act authorizes proceedings to be initiated by a complaint.

      . Section 4(i) provides:
      “The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.”
      Section 4(j), in relevant part, provides:
      “The Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice . . . .”

      . The Court also observed in Permian that “the width of administrative authority must be measured in part by the purposes for which it was conferred;....” 390 U.S. at 776. Cf. FCC v. Schreiber, 381 U.S. 279, 292 (1965).

      . In rejecting the Commission’s suggested interpretation of Sections 4(i), 4(j) and 403, we are mindful of the maxim that general language of a statute usually does not apply to a matter specifically dealt with in another part of the same statute. See, e. g., Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208 (1932).

      . Section 4(d) of the Natural Gas Act, 15 U.S.C. § 717c(d) (1970), is similar to Section 203 of the Communications Act in that both contain the thirty day notice provision, although the language of the two sections is different. See note 29, infra. Section 4(e) of the Gas Act gives the FPC a suspension power similar to that of Section 204 of the Communications Act except that a maximum period of five months is provided. The prescription authority created by Section 5(a) of the Gas Act is substantially the same as that of Section 205 of the Communications Act. See note 32, infra.

      . Section 16 of the Gas Act gives to the FPC “power to perform any and all acts, and to prescribe . . . such orders . . . as it may find necessary or appropriate to carry ont the provisions of this chapter.” Section 4(i) authorizes the FCC to make necessary rules and orders “not inconsistent with” the Act. See note 24, supra.

      . Section 203(b) of the Communications Act provides that no change shall be made in previously filed charges except after thirty days notice to the Commission, which notice shall be published in such form and contain such information as the Commission may prescribe. See note 9, supra. The section also provides that “the Commission may, in its discretion and for good cause shown, modify the requirements made by or under authority of this section in particular instances or by a general order applicable to special circumstances or conditions.”
      Similarly, Section 4(d) of the Gas Act, after providing that no rate change shall be made except after thirty days notice to the FPC, further provides that “the Commission, for good cause shown, may allow changes to take effect without requiring the thirty days notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and published.”

      . Section 6(3) of the Interstate Commerce Act provides, as do the corresponding provisions of the Communications Act and the Gas Act, that previously filed rates may not be modified except after thirty days notice. The Interstate Commerce Act also provides that “the Commission may, in its discretion and for good cause shown, allow changes upon- less than the notice herein specified, or modify the requirements of this section in respect to publishing, posting, and filing of tariffs, either in particular instances or by a general order applicable to special or' peculiar circumstances or conditions.....”

        Id.

      . Section 4(e) of the Gas Act .(like Section 204 of the Communications Act, see note 11, supra) permits the FPC to suspend for a period not longer than five months the effectiveness of newly filed rate changes pending a hearing. If the hearing is not concluded at the end of the five month suspension period, Section 4(e) provides that the rate change shall go into effect and the company may be required to make refunds to the extent that the new rates are ultimately determined to be illegal.

      . Section 5(a) of the Gas Act authorizes the FPC, after a hearing resulting in a finding that any rate collected by a regulated natural gas company is unjust, to determine the just and reasonable rate to be applicable thereafter. Section 5(a) in this respect is similar to Section 205 of the Communications Act. See note 13, supra.

      . This is not to say, of course, that the Commission may never reject a tariff that is demonstrably unlawful on its face — e. g., one that conflicts with a statute. See Associated Press v. FCC, 448 F.2d 1095, 1103 (D.C. Cir.1971).

      . In view of our decision that the Commission lacks authority to impose the special permission requirement, it is neither necessary nor appropriate for us to reach the questions whether the order under review is arbitrary and internally inconsistent or whether the Commission’s determination that the hearings in Dockets 18128 and 18684 will be materially disrupted or delayed by the new tariff filings is supported by adequate findings.

      . We deny the motion by certain of the in-tervenors to dismiss the petition to review on the ground that the case has been rendered moot by AT&T’s filing, on September 13, 1973, of its occasional user rate revisions pursuant to the order under review.
      It is well established that the cessation of allegedly illegal conduct does not moot a case where the challenged behavior is likely to recur. United States v. Concentrated Phosphate Export Association, 393 U.S. 199, 203 (1968) ; United States v. W. T. Grant Co., 345 U.S. 629, 632-33 (1953) ; United States v. Trans-Missouri Freight Association, 166 U.S. 290 (1897). This is especially so where administrative action is challenged, for consideration of agency orders “ought not to be, as they might be, defeated, by short term orders capable of repetition, yet evading review . . . .” Southern Pacific Terminal Co. v. ICC, 219-U.S. 498, 515 (1911). Cf. Roe v. Wade, 410 U.S. 113, 125 (1973). Furthermore, the mere filing of the rates referred to does not prevent this Court from granting to AT&T the meaningful relief to which we hold it is entitled. Although the Commission’s order permitted AT&T to file its rates after September 12, 1973, such rates may not become effective until the termination of a 60 day notice period and three month maximum suspension period. In contrast to such possible delay, our decision permits AT&T to place 'its .rates in effect at once.


author: ALFRED T. GOODWIN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Robert Rivas VILLEGAS, Appellant.
    No. 73-1574.
    United States Court of Appeals, Ninth Circuit.
    Nov. 9, 1973.
    Ronald Le Mieux, Los Angeles, Cal., for appellant.
    William D. Keller, U. S. Atty., Curtis B. Rappe, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
    Before CHOY and GOODWIN, Circuit Judges, and EAST, District Judge.

       The Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.

   ALFRED T. GOODWIN, Circuit Judge:

Robert Rivas Villegas was convicted of possession with intent to distribute and distribution of heroin. In this appeal he asserts that this circuit should change its rule on proof of prior convictions for impeachment.

Villegas, having been convicted in California in 1964 of a marijuana felony, requested a pretrial ruling that the government could not use evidence of the prior conviction to impeach him if he elected to testify in his own case. The district judge refused the request, and Villegas elected not to testify. The ruling was correct.

Academic speculation and occasional dicta in our decisions have encouraged defendants to renew the debate which had been stimulated by the brief reign in the District of Columbia Circuit of the so-called Luck rule.

In Luck v. United States, 121 U.S. App.D.C. 151, 348 F.2d 763 (1965), the court held that not every prior conviction could be used by the prosecution to impeach a witness, but only proof of such felonies as the court, in its discretion, might find relevant on the question of credibility, after balancing a number of factors that could be expected to vary from case to case. The Luck rule, with its resultant mini-trials on collateral matters, did not commend itself to the other circuits, and was abandoned in the District of Columbia after Section 14-305 of the D.C. Code was amended to provide that proof of any prior felony conviction must be received if offered for impeachment.

This is not to say that some version of the Luck rule should never be read into the rules of evidence for use in this circuit. That question is not before us. This court could consider it only by sitting en banc. See concurring opinion of Judge Hamley in Burg v. United States, 406 F.2d 235, 238 (9th Cir. 1965).

To date, this court has shown no disposition to abandon its long-standing rule that proof of any prior felony conviction may be given by the adversary to impeach any witness, including a defendant who elects to testify in a criminal trial. The list of cases cited recently in United States v. Walling, 486 F.2d 229 (9th Cir. 1973), contains' none in which a majority of any panel believed the time had come to initiate a new approach. Our cases in the future may have to be read in light of new Federal Rules of Evidence, which if adopted, will presumably tend to discourage local variations.

As noted in United States v. Walling, supra, some district courts may, from time to time, experiment with local versions of the Luck rule. But the government cannot appeal those rulings, and they remain uncontested. The point of our prior decisions is that in this circuit reversible error cannot be predicated upon a refusal to follow the Luck rule.

Other issues tendered in the briefs do not warrant discussion.

Affirmed.

      . United States v. Stroud, 474 F.2d 737 (9th Cir. 1973) ; United States v. Hiram, 473 F. 2d 670 (9th Cir. 1973) ; United States v. Valle-Rojas, 469 F.2d 79 (9th Cir. 1972) ; United States v. White, 463 F.2d 18 (9th Cir. 1972).

      . E. g., McCormick, Evidence § 43, at 84 (2d ed. 1972).

      . See, e. g., United States v. Walling, 486 F. 2d 229, 237, 238 (9th Cir. 1973) ; Burg v. United States, 406 F.2d 235, 238 (9th Cir. 1969) (Ely, J., concurring).

      . See Taylor v. United States, 280 A.2d 79, 81 (D.C.App. 1971).

      . Proposed Federal Rules of Evidence 609(a) General Rule.
      “For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involved dishonesty or false statement regardless of the punishment * * *.”


author: PER CURIAM:

text:
    PALO ALTO TENANTS’ UNION, an unincorporated association, et al., Plaintiffs-Appellants, v. George MORGAN et al., Defendants-Appellees.
    No. 71-1656.
    United States Court of Appeals, Ninth Circuit.
    Nov. 13, 1973.

      Norton Tooby (argued), Romines, Wolpman, Tooby, Eichner, Sorensen & Constantinides, Menlo Park, Cal., Legal Aid Society of San Mateo County, Redwood City, Cal., American Civil Liberties Union, San Francisco, Cal., for plaintiffs-appellants.
    Peter G. Stone, City Atty., Robert K. Booth, Jr., Senior Asst. City Atty. (argued), Palo Alto, Cal., for defendants-appellees.
    Before MERRILL and BROWNING, Circuit Judges, and ANDERSON, District Judge.

       Honorable J. Blaine Anderson, United States District Judge for the District of Idaho, sitting by designation.

   PER CURIAM:

Plaintiffs-appellants have brought this action under the civil rights and declaratory judgment statutes, 42 U.S.C. § 1983, 28 U.S.C. §§ 2201, 2202. They challenge as unconstitutional certain zoning laws of the City of Palo Alto, Municipal Code §§ 18.04.210 and 18.88.-050, defining “R-l” or “single family residential” neighborhoods. Section 18.-04.210 defines “family” to mean “one person living alone or two or more persons related by blood, marriage or legal adoption, or a group not exceeding four persons living as a single housekeeping unit.” Plaintiffs-appellants sue on behalf of themselves as well as all others who constitute groups of unrelated persons in excess of four who inhabit dwellings in “R-l” neighborhoods in the City of Palo Alto. They seek an injunction against enforcement of the ordinances. The District Court denied in-junctive relief, finding the ordinances to be constitutional and rendered judgment for defendants-appellees. Its opinion appears at 321 F.Supp. 908. From that judgment this appeal is taken.

On appeal plaintiffs-appellants rely on Boraas v. Village of Belle Terre, 476 F. 2d 806 (2d Cir. 1973), in which case the Supreme Court has noted probable jurisdiction. 414 U.S. 907, 94 S.Ct. 234, 38 L.Ed.2d 145 (1973). In that case the ordinance of the Village of Belle Terre limited occupancy of single family dwellings to traditional families or to groups of not more than two unrelated persons. This ordinance was held to be a classification unconstitutionally discriminating against unrelated groups in excess of two persons. In our view the opinion in that case expressly serves to distinguish the ordinances in the case before us. Here the District Court noted: “[T]he fact [is] that the average size of even the traditional family is less than four members * * *.” ' 321 F.Supp. at 912. In the Belle Terre case the court stated, with reference to the ordinance before it:

“* *- * [I]f it were aimed at maintaining population density at the level of traditional family units, it would not limit the number of unrelated occupants to two (2) persons per one-family dwelling, which admittedly is smaller than the size of the average family. Assuming such a purpose, a more permissive ordinance would suffice.” 476 F.2d at 817.

For the reasons set forth by the District Court in its opinion we agree that plaintiffs-appellants’ attack on the constitutionality of the ordinances must fail.

Judgment affirmed.


text:
    James Arthur JACKSON, Plaintiff-Appellant, v. The OFFICIAL REPRESENTATIVES AND EMPLOYEES OF the LOS ANGELES POLICE DEPARTMENT IN AND FOR the COUNTY OF LOS ANGELES et al., Defendants-Appellees.
    No. 72-1229.
    United States Court of Appeals, Ninth Circuit.
    Nov. 16, 1973.

      James Arthur Jackson, in pro. per.
    Roger Arnebergh, City Atty., George J. Franscell, Asst. City Atty., Burk M. Wiedner, Deputy City Atty., Los Ange-les, Cal., for defendants-appellees.
    Before ALDRICH, HUFSTEDLER and CHOY, Circuit Judges.

       The Honorable Bailey Aldrich, Senior United States Circuit Judge for the First Circuit, sitting by designation.

   PER CURIAM:

This appeal concerns a civil rights action for damages under 42 U.S.C. § 1983 (1970), in which appellant’s complaint was dismissed by way of summary judgment.

Jackson, a state prisoner, bases his action on certain events surrounding his arrest and conviction for armed bank robbery. He contends it was error to dismiss each and every one of the numerous counts of his complaint. Most of these claims are without merit, but we deem three matters sufficiently weighty to justify discussion.

Appellant argues that his 1962 arrest and a subsequent search of his car were illegal. The district court disposed of this contention on grounds of collateral estoppel, reasoning that these issues had been determined at his criminal trial and, again, in a later, unsuccessful federal habeas corpus proceeding. However, the records of those prior judicial proceedings reveal that the arrest and automobile search were never considered on their merits. Since collateral estoppel — in contrast to the aspect of res judicata known as bar — requires actual litigation of an issue, appellant was not precluded from raising them in his civil rights action.

Nonetheless, summary dismissal of the arrest and automobile claims was still proper. The affidavits of the arresting officers, uncontroverted in this respect, show that a tip was received connecting appellant with the bank robbery; photographs of him were then identified by witnesses to the crime. The photographic identification surely furnished probable cause for the arrest. Moreover, just after the car was stopped by the police, certain articles were seen protruding from beneath the front seat. Since the articles were in “plain view,” their seizure was justified. See Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

Later the police officers were led by Wilma Neal, Jackson’s common law wife, to appellant’s parents’ home. A locked metal box was found buried in the basement. When opened with Neal’s consent, it was found to contain a large amount of money. Jackson claims the district court erred in summarily dismissing the count alleging that the search of the house and the opening of the box were illegal. Appellant, however, has no standing to complain of the search of his parents’ home. See, e. g., Northern v. United States, 455 F.2d 427, 430 (9th Cir. 1972). He was not living in the house, and he had no interest giving rise to “a reasonable expectation of freedom from governmental intrusion.” Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2124, 20 L.Ed.2d 1154 (1968). While he may have standing to challenge the search of the metal box, the uncontested evidence before the district court indicated that Neal was a co-owner of the box. A co-owner has the authority to permit a search of a jointly held possession. Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed. 684 (1969).

Following appellant’s arrest, the officers went with him to a house occupied by him and Neal. They knocked at the door — which was answered by Neal —entered, and searched the home. Contraband was discovered, but it was not related to the robbery and was not introduced at that trial. The police officers, in their affidavits, state that both Jackson and Neal gave then permission to search the house. Jackson’s affidavit, drawing all inferences from it favorably to appellant, see, e. g., United States ex rel. Austin v. Western Electric Co., 337 F.2d 568, 572 (9th Cir. 1964), denies that he or his wife consented to the search. Because material facts remain in issue, summary judgment was inappo-site. See F.R.Civ.P. 56(c); Griffeth v. Utah Power & Light Co., 226 F.2d 661, 669 (9th Cir. 1955). Therefore, while we affirm the trial court’s disposition of the case in all other respects, we must reverse and remand for proceedings limited to the legality of the search of appellant’s home.

Reversed and remanded for further proceedings consistent with this opinion.

      . Jurisdiction was premised on 28 U.S.C. § 1343(3) (1970).

      . The legality of this search, as such, was not litigated — nor could it have been — in either the criminal or habeas proceedings because the contraband was unrelated to the robbery. Consequently, there could be no collateral estoppel. See note 2 supra.

      . See, e.g., Emich Motors v. General Motors Corp., 340 U.S. 558, 568-569, 71 S.Ct. 408, 95 L.Ed. 534 (1951) ; Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 681 (1876) ; De-Hart v. Richfield Oil Corp., 395 F.2d 345, 347 (9th Cir. 1968).


text:
    Nathaniel DANIELS, Petitioner-Appellee, v. STATE OF ALABAMA, Respondent-Appellant.
    No. 73-2445
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 13, 1973.
    William J. Baxley, Atty. Gen., Donald G. Valeska II, Walter S. Turner, Montgomery, Ala., for respondent-appellant.
    Nathaniel Daniels, pro se.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 P.2d 409. Part I

   PER CURIAM:

The State of Alabama here appeals from an order of the district court granting the habeas corpus petition of Nathaniel Daniels, subject to the right of the State to retry him within six months, unless Alabama provides him with “effective out-of-time appellate consideration of his conviction and sentence”. Daniels is currently serving a twenty-five-year sentence for second degree murder. The district court, adopting the report and recommendation of the United States Magistrate, with the benefit of a transcript of the eviden-tiary hearing before the Magistrate, held that the petitioner was denied his right to counsel on appeal and his right to a direct appeal from his murder conviction. We affirm.

The petitioner-appellee was arrested in October 1970 for the murder of his wife. He was indicted March 16, 1971, on a charge of first degree murder, and counsel was appointed three days later. Daniels entered a plea of not guilty, and was tried and found guilty of second degree murder on March 29, 1971. On July 6, 1971, Daniels filed a petition for a Writ of Error Coram Nobis in the Circuit Court of Greene County, upon which a hearing was had on November 9, 1971. The petition raised a number of allegations, including an assertion that he had been denied his right to an appeal and his right to counsel to prepare an appeal, because his appointed trial counsel failed to inform him of these rights. The court denied post-conviction relief, on the ground that he had submitted his coram nobis petition before his time to appeal had elapsed, and that he therefore knew that he had a right to appeal within the prescribed period. The Alabama Court of Criminal Appeals affirmed the denial of coram nobis relief. Daniels then sought ha-beas corpus relief in the federal courts.

Douglas v. California, 1963, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, established the principle that convicted indigents have a constitutional right to representation on appeal. In applying the Douglas standard, this Court has developed two distinct approaches, one for cases in which the defendant has himself retained trial counsel, and another for controversies where the defendant is represented by a court-appointed attorney. Goforth v. Dutton, 5 Cir. 1969, 409 F.2d 651, 653. The differing standards are well set out in Gregory v. United States, 5 Cir. 1971, 446 F.2d 498, 499-500:

If the trial attorney was retained it must be known to the court or some' other responsible state official that the defendant was indigent and that he desired to appeal. Beto v. Martin, 5 Cir. 1968, 396 F.2d 432. However, when the defendant is represented by court-appointed counsel a different standard applies, Goforth v. Dutton, supra, and the focus of the inquiry is not on what the defendant made known to the state, but on what the state, acting through court-appointed counsel, revealed to the defendant. Accordingly, we have held that representation is inadequate and the right of appeal is denied where appointed counsel fails to fully inform the client of his appellate rights. Byrd v. Smith, 5 Cir. 1969, 407 F.2d 363.

Here, Daniels’ court-appointed trial counsel testified in the state coram no-bis hearing that the last time he had discussed Daniels’ case with him was at trial, and that he did not recall having advised Daniels of his right to appeal and his right to appellate coúnsel. The record reveals that Daniels was not advised by the court or from any source that he had these rights, guaranteed to him by the Sixth and Fourteenth Amendments. Rought v. Henderson, 5 Cir. 1971, 445 F.2d 622; Andry v. Henderson, 5 Cir. 1970, 429 F.2d 26; Wainwright v. Simpson, 5 Cir. 1966, 360 F.2d 307. Daniels is therefore entitled to have his writ granted, subject to the state’s retrying him, or granting him an out-of-time appeal.

The order appealed from is affirmed.


text:
    Gene WOODHOUS, Appellant, v. COMMONWEALTH OF VIRGINIA et al., Appellees.
    No. 72-1576.
    United States Court of Appeals, Fourth Circuit.
    Argued June 7, 1973.
    Decided July 27, 1973.
    Robert Plotkin, Washington, D. C. (court-appointed counsel), for appellant.
    William A. Carter, III, Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Va., on brief), for appellees.
    Before HAYNSWORTH, Chief Judge, and BUTZNER and RUSSELL, Circuit Judges.
   PER CURIAM:

In Woodhous v. Virginia, Mem.Dec. No. 15,075 (4th Cir., July 7, 1971), we vacated an order dismissing Woodhous’ complaint and remanded the case for an evidentiary hearing to determine whether Woodhous, a prisoner, was being subjected to cruel and unusual punishment because the state was not adequately protecting him from violence and sexual assaults by other prisoners. The district court appointed counsel for Wood-hous, and, after hearing testimony from Woodhous and two prison officials, found no violation of his constitutional rights. We reverse because we believe the district court unduly restricted the protection afforded a prisoner by the eighth amendment.

Briefly, the district court found that Woodhous had not been attacked and that he did not fear attack. The court concluded, therefore, that Woodhous had not proved his cause of action. Because the case was not a class action, the court ruled that Woodhous could not complain on behalf of young inmates who had been sexually assaulted. Finally, observing that guards were shorthanded through lack of funds, the court concluded that the prison officials were doing what they could with the money at their disposal. Consequently, it dismissed the complaint.

While occasional, isolated attacks by one prisoner on another may not constitute cruel and unusual punishment, Penn v. Oliver, 351 F.Supp. 1292 (E.D.Va.1972), confinement in a prison where violence and terror reign is actionable. A prisoner has a right, secured by the eighth and fourteenth amendments, to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates, and he need not wait until he is actually assaulted to obtain relief. Holt v. Sarver, 442 F.2d 304, 308 (8th Cir. 1971). In addition to being a potential victim, Woodhous was subjected to the danger of reprisal when he went to the aid of a younger prisoner who was being sexually assaulted.

Woodhous also complains that he was denied the right to summon six other prisoners who could have enlarged on his description of prison discipline. The lawyer who was then representing him declined to summon these witnesses because Woodhous was not involved in the attacks they had seen. Over Woodhous’ objection, the court acquiesced in the lawyer’s decision. The exclusion of this evidence was error. Other prisoners’ description of attacks is relevant to determine whether the peril about which Woodhous complains is constant and imminent.

Although we are remanding the case, we note that it may not be necessary to conduct another hearing. At oral argument, we were told that similar complaints from other prisoners are now being considered in a consolidated action, Stotler v. Brown, No. 292-70-R, which is pending in the district court. Relief, if appropriate in that case, may inure to the benefit of Woodhous and eliminate the need for further proceedings in his ease. On the other hand, if the outcome of that case does not afford him relief, he should be granted a new trial and allowed to present the testimony of several witnesses about the danger of attack from other prisoners. In determining whether to grant relief, the court should ascertain: (1) whether there is a pervasive risk of harm to inmates from other prisoners, and, if so, (2) whether the officials are exercising reasonable care to prevent prisoners from intentionally harming others or from creating an unreasonable risk of harm. See Restatement (Second) of Torts § 320 (1965).

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

      . Woodhous was represented by different counsel on appeal.


author: PER CURIAM.

text:
    Donald DAVIS, Jr., a minor by his mother and next friend, Mrs. Sadie Davis, et al., Plaintiffs-Appellees, v. SCHOOL DISTRICT OF the CITY OF PONTIAC, INC., et al., Defendants-Appellants.
    No. 73-1561.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 16, 1973.
    Decided Nov. 16, 1973.

      Robert E. Manley, Cincinnati, Ohio, for defendants-appellants; Dudley & Patterson by Harold W. Dudley, William R. Lightbody, Bloomfield Hills, Mich., Joseph R. Jordan, Cincinnati, Ohio, of counsel.
    William Waterman, Pontiac, Mich., for plaintiffs-appellees; Hatchett, Waterman & Spinks by Egbert L. Hatchett, Pontiac, Mich., on brief.
    Before EDWARDS, McCREE and MILLER, Circuit Judges.
   PER CURIAM.

This is an appeal from the reaffirmation of an order that requires the defendant School District to create a position for a third' assistant superintendent and to hire a Negro to fill the position. Initially, the order was vacated and remanded to permit the district court “to consider whether the creation of such a position and its filling by a black person in the light of current conditions within the school system is indicated to dismantle the unconstitutional condition that he found to exist.” Davis v. School District of City of Pontiac, Inc., 474 F.2d 46 (6th Cir. 1973).

Without a hearing or notice to either party, on April 16, 1973, the district court reinstated its prior order and directed that it be implemented forthwith. A stay of implementation was granted' upon application.

Appellant contends that the district court did not comply with our directions because it did not afford an opportunity for a hearing to permit appellant to show that under “current conditions” the school system needs only one assistant superintendent. However, we observe that in obedience to the request of the district court, appellant had filed two comprehensive reports summarizing the status of the operations in the School District with particular reference to the progress of efforts to desegregate the system in . compliance with the court’s earlier orders. One status report reflected conditions as of February 29, 1972, and the other, conditions on February 28, 1973. The order from which this appeal is taken was entered April 13, 1973 and, therefore, it cannot be said that the court was without information concerning current conditions.

The order recites, in pertinent part:

The provisions of the order of this Court mandating the appointment in question, which was entered at the conclusion of the hearing held in July. 1971, was an essential part of the judicial remedy that this Court devised, in the exercise of its discretion, to eliminate the de jure segregation existing at all levels of the Pontiac School System. The requirement that a black assistant superintendent be hired was and continues to be a crucial part of the comprehensive remedy necessary to rectify the result of years of purposeful segregation. (Emphasis added.)

We also observe that appellant, which filed the status report, made no request to submit any other evidence in order to demonstrate that an additional assistant superintendent was unnecessary in light of current conditions.

Once a past constitutional violation has been established, “the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). We hold that the district court sufficiently complied with our directions on remand and that the order, as reinstated, is properly within the scope of the court’s broad equitable powers to eliminate the unconstitutional segregation.

Affirmed.