author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jack P. INSCO, Defendant-Appellant.
    No. 73-3990.
    United States Court of Appeals, Fifth Circuit.
    June 21, 1974.
    See also, D.C., 365 F.Supp. 1308.

      Benton L. Becker, Washington, D. C., F. Lawrence Matthews, Miami, Fla., for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Jeffry R. Jontz, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.
    Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.
   DYER, Circuit Judge:

Jack Insco, an unsuccessful Republican candidate for Congress in the 1972 general election, was convicted in a bench trial of violating 18 U.S.C.A. § 612, which proscribes the publication or dissemination of anonymous written campaign materials in federal elections, for printing and distributing certain bumper stickers which did not contain the statutorily-prescribed attribution clause. We reverse.

I

In the fall of 1972, Insco was campaigning against the Democratic Party’s nominee, William Gunter, for the congressional seat from Florida’s Fifth District. During the final weeks of the campaign, Insco ordered approximately 2,500 bumper stickers which contained the following two words: “McGovernGunter.” After being printed, the materials were distributed through Insco’s official campaign organization until the election, which culminated unfavorably to Insco. Subsequently, in August 1973, a two-count indictment was returned, charging that by causing the unattributed bumper stickers to be published and distributed, Insco violated section 612, which provides:

Whoever willfully publishes or distributes or causes to be published or distributed, or for the purpose of publishing or distributing the same, knowingly deposits for mailing or delivery or causes to be deposited for mailing or delivery, or, except in cases of employees of the Postal Service in the official discharge of their duties, knowingly transports or causes to be transported in interstate commerce any card, pamphlet, circular, poster, dodger, advertisement, writing, or other statement relating to or concerning any person who has publicly declared his intention to seek the office of President, or Vice President of the United States, or Senator or Representative in, or Delegate or Resident Commissioner to Congress, in a primary, general, or special election, or convention of a political party, or has caused or permitted his intention to do so to be publicly declared, which does not contain the names of the persons, associations, committees, or corporations responsible for the publication or distribution of the same, and the names of the officers of each such association, committee, or corporation, shall be fined not more than $1,000 or imprisoned not more than one year, or both.

Pursuant to the parties’ stipulation of facts, the district court found Insco guilty and entered sentence of six months’ probation and a $1,000 fine, notwithstanding Insco’s arguments that the statute did not specifically enumerate bumper stickers and that a judicial “expansion” of the measure to include such materials would violate due process.

II

We are persuaded that under the unique circumstances of this case Insco was inadequately apprised by the provisions of section 612 of the culpable nature of his conduct at the time the charged offense occurred. We therefore refrain from addressing Insco’s other constitutional contentions, including his charge of the statute’s impermissible overbreadth. Cf. New York v. Duryea, N. Y.Sup.Ct.App.Div., 354 N.Y.S.2d 129, 1974.

As presently framed, section 612 contains both precise and general language. The measure proscribes in highly specific terms any anonymous card, pamphlet, circular, poster or dodger, but it also forbids any anonymous “advertisement, writing or other statement. . . . ” Facially, therefore, section 612 seemingly sweeps within its ambit any written material with respect to federal candidates, including bumper stickers containing written words.- In divining legislative intent, however, a venerable precept of statutory construction, the doctrine of ejusdem generis, warns against expansively interpreting broad languáge which immediately follows narrow and specific terms. To the contrary, this maxim of statutory analysis counsels courts to construe the broad in light of the narrow, in a commonsense recognition that general and specific words, when present together, are associated with and take color from each other. See, e. g., United States v. Baranski, 7 Cir. 1973, 484 F.2d 556, 566; Adams v. Fazzio Real Estate Co., E.D. La.1967, 268 F.Supp. 630, 637, aff’d, 5 Cir. 1968, 396 F.2d 146; Sparks v. Celebrezze, E.D.Tex.1964, 228 F.Supp. 508, 512, aff’d, 5 Cir. 1965, 342 F.2d 286. The limiting principle of ejusdem generis has particular force with respect to criminal statutes, which courts are compelled to construe rigorously in order to protect unsuspecting citizens from being ensnared by ambiguous statutory language. See, e. g., Mourning v. Family Publications Service, Inc., 1973, 411 U.S. 356, 375, 93 S.Ct. 1652, 36 L.Ed.2d 318; United States v. Campos-Serrano, 1971, 404 U.S. 293, 297-298, 92 S.Ct. 471, 30 L.Ed.2d 457; United States v. Clark, 5 Cir. 1969, 412 F.2d 885, 890. In light of these settled principles of statutory analysis, the more reasoned view of congressional intent is that by employing general terms in this context, Congress did not intend to sweep within the statute’s coverage all campaign-related writings not specifically enumerated, particularly since any other view would render meaningless the detailed recitation of specific items. Thus, bumper stickers, under this analysis, are at least not necessarily included within the statute’s coverage.

Mindful, however, that rules of statutory construction must not be employed to eviscerate manifest legislative intent, see, e. g., United States v. Cook, 1966, 384 U.S. 257, 262, 86 S.Ct. 1412, 16 L.Ed.2d 516; United States v. Healy, 1964, 376 U.S. 75, 82, 84 S.Ct. 553, 11 L.Ed.2d 527; Hattaway v. United States, 5 Cir. 1962, 304 F.2d 5, 9, we think it appropriate to resort to the statute’s legislative history for aid in ascertaining Congress’ will. The predecessor of section 612 was enacted without debate in 1944 to outlaw any anonymous “printed, multigraphed, photographed, typewritten, or written pamphlet, circular, card, dodger, poster, advertisement, or any other statement. . . .” P.L. 544, 58 Stat. 914-915. As initially adopted, therefore, Congress did not include “writing” as a separate category of proscribed material. Indeed, this additional category was incorporated four years later, without discussion, as part of the 1948 general recodification of the criminal laws. The current Reviser’s Note suggests that the 1948 modifications were simply changes in phraseology without effecting any change of substance. 18 U.S.C.A. § 612 (1970) (Reviser’s Note).

The scant legislative history in regard to the original enactment consists entirely of Senate Report No. 1390, which evidences Congress’ concern with written “political statements” relating to federal candidates. No indication of any kind in this document suggests congressional concern with written campaign materials which served merely to identify a candidate, such as a political pin bearing only the candidate’s name.

This circumscribed congressional attitude is also reflected in the only recorded debates concerning this statute or its amendments, the Senate debate in 1950 over a proposed change offered by Senator Joseph McCarthy. Although speaking broadly of “material in a campaign,” 96 Cong.Rec. 625, Senator McCarthy expressly noted that the statute’s contemplated ambit did not include any “matter [contained] in a newspaper,” notwithstanding the measure’s broad language. 96 Cong.Rec. 622. It is therefore inescapable that Congress was not intentionally imbueing the words “writing” or “statement” with their broadest possible meaning, since newspaper articles, for one, were expressly outside the Senators’ contemplation.

This excursion into the historical antecedents of section 612 suggests a consistency with the results yielded by applying settled rules of statutory construction — there is, at the least, no significant evidence that Congress sought to include bumper stickers per se within the statute’s prohibition. Rather, by its concern with “political statements,” Congress evidently sought to regulate only those written products of an organized campaign which were designed to convey something beyond mere candidate identification. Thus, had Insco for some reason magnanimously published and distributed bumper stickers containing only the last name of his opponent, “Gunter,” there would have been no writing or statement within the statutory meaning of section 612.

The district court held, however, and we think rightly so, that bumper stickers, normally a medium for conveying name identification alone, could be of such a nature as to fall within the statute’s compass. Little imagination is required to envision a bumper sticker which indisputably conveys a “political statement” so as to come within the scope of Congress’ concern. The vexing dimension of Insco’s criminal conviction, however, is not that bumper stickers can under certain circumstances be within the contemplation of section 612; nor that the “McGovern-Gunter” bumper stickers involved here could be interpreted as constituting a political statement, rather than an innocuous means of candidate identification; but, instead, that this particular defendant was inadequately alerted to the statute’s possible coverage.

Ill

It is a fundamental tenet of our jurisprudence that statutes which proscribe conduct may not be so inartfully worded that persons of common intelligence must speculate as to their meaning. Lanzetta v. New Jersey, 1939, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888. Vaguely phrased measures run afoul of substantive due process requirements by failing to convey with reasonable certainty the statute’s intended sweep. “The underlying principle is that no man shall be held criminally responsible for the conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 1954, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989.

The problem of providing fair notice in this case is raised by the unusual concatenation of three interrelated factors. First, as already noted, there is complete silence in both the statute and the legislative history in regard to bumper stickers, even though the measure enumerated certain campaign materials subject to its operation. Second, according to the record in this case, a universal practice has prevailed among federal candidates in not affixing attribution clauses to bumper stickers employed in their campaigns. Indeed, exhibits received into evidence affirmatively demonstrate, for example, that presidential candidates in numerous elections have failed to abide by this apparent statutory mandate. Third, no prosecutions have ever been brought by the Department of Justice with respect to unattributed bumper stickers, despite this universal practice of omitting identification statements. Indeed, the only reported prosecution in the statute’s twenty-nine year history was brought in 1961 in a case concerning anonymous pamphleteering during a senatorial campaign, an activity expressly contemplated by the statute. United States v. Scott, D.N.D.1961, 195 F.Supp. 440. Other references to section 612 in the cases have not purported to provide authoritative constructions of the statute and have simply indicated that the provision is aimed at disclosure with respect to “political statements” or “campaign materials.” See, e. g., United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 1973, 413 U.S. 548, 567 n. 13, 93 S.Ct. 2880, 37 L.Ed.2d 796; Communist Party v. Subversive Activities Control Board, 1961, 367 U.S. 1, 97 n. 39, 81 S.Ct. 1357, 6 L.Ed.2d 625; Rumely v. United States, 1952, 90 U.S.App.D.C. 382, 197 F.2d 166, 186; Bowie v. Williams, E.D.Pa.1972, 351 F.Supp. 628, 633-634; United States v. Painters Local Union No. 481, D.Conn.1948, 79 F.Supp. 516, 521, rev’d, 2 Cir. 1949, 172 F.2d 854.

It therefore appears that at the time Insco caused these materials to be published and distributed the regulatory slate in regard to bumper stickers was completely clean, at least insofar as section 612 was concerned. By the unique confluence of silence in an otherwise detailed statute and in its legislative history, a universally accepted omissive practice amoung federal candidates, the utter lack of prosecutorial interdiction of the practice for twenty-nine years, and the want of authoritative judicial construction of the statute as including this genre of campaign materials, Insco was lulled into the reasonable impression that, whatever the ethical considerations might be, his conduct did not run afoul of the federal anti-anonymity measure.

Undeniably, criminal statutes may be construed in such a way that they will apply to situations previously deemed beyond the measures’ intended compass. See, e. g., Bouie v. City of Columbia, 1964, 387 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894. Thus, the district judge has properly signaled the demise of the apparently presumed per se exemption of bumper stickers from statutorily-prescribed attribution requirements. Anonymous bumper stickers conveying political statements, as the district court found the “McGovern-Gunter” bumper stickers to be, are henceforth published and distributed at the peril of the materials’ sponsors. But the harsh consequences of this divination of congressional intent are being visited upon an individual who lacked authoritative guidance at the time he acted. This cannot lawfully be done. Bouie, supra, at 362-363.

In so holding, we jeopardize not one whit the discretion which prosecutors inarguably enjoy in selecting particular cases for prosecution. See, e. g., Oyler v. Boles, 1962, 368 U.S. 448, 455-456, 82 S.Ct. 501, 7 L.Ed.2d 446; United States v. Steele, 9 Cir. 1972, 461 F.2d 1148; United States v. Ahmad, M. D.Pa.1972, 347 F.Supp. 912, modified, 3 Cir. 1973, 482 F.2d 171. Nor do we hold or imply that a statute can lie dormant for a considerable period of time only on pain of, in effect, immunizing proscribed conduct until such time as the statute has been judicially resuscitated. We treat here only the extraordinary facts, unlikely of repetition in other contexts, presently before us. And we cannot overlook the fact that we deal not with a remedial measure undeserving of a niggardly judicial construction, but rather with a statute that potentially deprives one of liberty or property. Where freedom is at stake, ambiguities and doubts as to statutory application, manifestly existing here, must be resolved in favor of the accused. See, e. g., United States v. Enmons, 1973, 410 U.S. 396, 411, 93 S.Ct. 1007, 35 L.Ed.2d 379; Rewis v. United States, 1971, 401 U.S. 808, 812, 91 S.Ct, 1056, 28 L.Ed.2d 493; United States v. Etheridge, 6 Cir. 1970, 424 F.2d 951, cert. denied sub nom., Cole v. United States, 1971, 400 U.S. 993, 91 S.Ct. 463, 27 L.Ed.2d 442; United States v. Illinois Central Ry., W. D.Tenn.1967, 269 F.Supp. 236, 240.

Reversed.

      . Insco was found guilty of the substantive offense charged in Count 1 of the indictment. Count 2, charging conspiracy with the then co-defendant McMullen to violate section 612, was dismissed.

      . This proposed change, as adopted, merely criminalized the separate act of depositing unattributed materials in the mails. Senator McCarthy’s proposal, importantly, repeated exactly those items already enumerated by the statute. Hence, in discussing this amendment, Congress had before it the precise terms which are still contained in the statute.

      . Senator McCarthy specified certain types of materials as warranting attribution clauses :
      In other words, anyone who has something of a derogatory nature to say . . . should be required to sign his name to such material. We know that in the last campaign Senators had some very unpleasant experiences; we know that in various parts of the Nation there are some unscrupulous persons who do not hesitate to write libelous articles about candidates, but do not have the courage to sign their names to such articles.
      This amendment simply provides that such persons, if they pass such material through the mails will be guilty of a crime. 96 Cong.Rec. 625 (emphasis supplied).
      This passage strongly suggests that Congress’ concern was not so open-ended as to encompass all written materials. See note 2, supra.

      . Moreover, the statutory term, “advertisement,” does not necessarily include bumper stickers, since an advertisement, as commonly understood, could be contained in a newspaper, yet the Senators concluded during the 1950 debate that such material would not be covered by the statute.

        After this 1950 modification, the statute was finally amended once again in 1970 to reflect the structural change in the Post Office Department, but, again, no substantive change was incorporated into the statute.

      . Indications in the record suggest that bumper stickers were extant at the time the statute was originally enacted, hence Congress when enumerating posters, cards, dodgers, and pamphlets must be presumed to have been cognizant of their existence. In any event, the items specified in the statute were never the subject of change even though Congress modified the measure in certain nonsubstantive respects in 1948, 1950, and 1970.


source: Caselaw Access Project

author: CLARK, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. (ONE) (1) 1971 CHEVROLET CORVETTE AUTOMOBILE SERIAL NO. 194371S121113, Defendant, The First National Bank of Miami, Intervenor, Hilda Landeo de la Fe, Intervenor-Appellant.
    No. 73-3373.
    United States Court of Appeals, Fifth Circuit.
    June 26, 1974.
    Alfred Feinberg, Legal Services of Greater Miami, Miami, Fla., for intervenor-appellant.
    Robert N. Reynolds, Asst. U. S. Atty., Robert W. Rust, U. S. Atty., C. Wesley Currier, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    J. T. Haley, Miami, Fla., for First Nat. Bank.
    Before BELL, GOLDBERG and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

The court below ordered the automobile belonging to appellant-intervenor Hilda Landeo forfeited for violation of 49 U.S.C. § 781(a)(3), which makes unlawful the use of a vehicle “to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.” Landeo admitted participating in the illegal importation of cocaine, but challenges the court’s conclusion that her automobile was used to "facilitate” the transaction. The record, which is substantially uncontradicted, discloses that the government failed to discharge its initial burden of showing probable cause to believe that the auto’s’use facilitated the crime. We reverse.

Upon her arrival at the Miami International Airport after a flight from Peru, Landeo was met by her husband; together they drove in a borrowed Cadillac to her father-in-law’s apartment. Following a short visit, Landeo and her husband drove the Cadillac to their own apartment a few blocks away. Forty-five minutes later they exited their apartment and got into the Chevrolet Corvette that is the subject of this libel. They returned to the father-in-law’s apartment, parked the Corvette, and departed in a Ford automobile belonging to the father-in-law. They then drove to the McAllister Hotel, where Landeo expected to rendezvous with an accomplice who had entered the country the day'before with a quantity of cocaine. Unknown to Landeo, the accomplice had been apprehended at the airport after a search by government agents and was now cooperating with those agents in their effort to capture the rest of the conspirators. Consequently Landeo was arrested at the hotel. The district court found that contraband was never present in the defendant automobile.

The testimony of one of the government agents provided the sole attempt to elucidate the ear switches. The following colloquy occurred on direct examination by the government:

Q Did Miss Landeo indicate to you why she changed vehicles on that particular day?
* * * * * *
The witness: Totally different comments were made by Miss Landeo from one that the car was not running right, to comments that they didn’t want to use that car for anything because, you know, they didn’t want to have any trouble with the car.
Q When you say trouble with the car, do you mean seizure ? What kind of trouble?
A They talked about, you know, getting in trouble and having the car taken away. They told me at the time • — -“they” being both Miss Landeo and her husband — that they did not use the car in any narcotics transactions or things like this because they did not want to get in trouble, you know, and have the car taken away.
Q Was there any other reason she said she did not use it or wouldn’t— ******
The witness: She did mention that the car was not running right that day. I didn’t go into any details.
Q Was there anything said of a Corvette which would—
A Well, they told me on occasions also that the car was conspicuous, you notice it a lot, but it never came up in conversation as to why it was not used that day.
Q How long have you been in the Drug Surveillance business, if I might put it that way ?
A A little less than two years.
Q Sir, do you know whether using one car and dropping another is a standard means of shaking surveillance ?
A We have encountered that before. ******
Q Is it also standard procedure and a standard ploy in the drug community to drop one car off and pick up another to avoid this type of a legal problem, that is, seizure ?
A We have encountered that problem also.

****** From this testimony the district court found that the car was switched deliberately either to avoid surveillance or to avoid forfeiture or both, and concluded that “[i]n going from her apartment to the McAllister Hotel to get the cocaine or to get the individual with the cocaine, bringing the individual and the cocaine back to her apartment she used this automobile for some portion of that trip; and that is the sole basis of this forfeiture . . . . ”

The burden of proof in a forfeiture proceeding is cast upon the claimant, provided that the government first shows probable cause for the institution of the suit. 49 U.S.C. § 784, 19 U.S.C. § 1615. The showing required of the government is satisfied when there is “a reasonable ground for belief of guilt,” Carroll v. United States, 267 U.S. 132 45 S. Ct. 280, 69 L.Ed. 543 (1925), supported by “less than prima facie proof, but more than mere suspicion.” United States v. One 1949 Pontiac Sedan, 194 F.2d 756, 759 (7th Cir. 1952); Bush v. United States, 389 F.2d 485, 489 (5th Cir. 1968). Landeo chose to present no evidence at the conclusion of the government’s case. Our inquiry need extend no further than a determination whether the evidence established probable cause to believe that the defendant automobile “facilitated” the narcotics transaction.

“[W]hether any particular connection of a vehicle with contraband, where the contraband is not in the vehicle or in the possession of the occupant of the vehicle, constitutes facilitation, is a question of degree, which is in turn a question of fact not readily susceptible to generalization.” United States v. One Dodge Coupe, 43 F.Supp. 60, 61 (S.D.N. Y.1942). It is commonly stated that any use of an automobile that “makes easy or less difficult” or “lessens the labor of” the handling of contraband constitutes facilitation within the meaning of section 781. E. g., United States v. One 1950 Buick Sedan, 231 F.2d 219 (3rd Cir. 1956). Evaluating the government’s evidence in this light, we find the use made of the Corvette lacked the necessary nexus with the contraband transaction to bring it within the forfeiture provision.

The' district court apparently viewed facilitation as demonstrated in two ways: (1) the deliberate switch from the conspicuous Corvette to the more commonly seen Ford, and (2) the use of the Corvette for transportation on one leg of the trip from Landeo’s apartment to the rendezvous point. While the changing of cars to evade peace officers who have suspects under surveillance and thus enable a clandestine transfer to take place would constitute facilitation, that is not what the government’s proof established here. To the extent the car switch from Corvette to Ford may have been ambiguous in this respect, the government’s agent resolved all doubt by disclosing that Landeo only wanted to avoid forfeiting the Corvette or perhaps to present a less attractive appearance at the hotel. The Corvette did not become involved in the criminal act by virtue of the decision not to use it.

The mere fact that the Corvette did perform a useful function in conveying Landeo and her husband during the day of the crime is not enough to support a finding of probable cause that it facilitated the ultimate transaction. The five block trip in the Corvette did serve to take the criminals to the car they had chosen for travel to the hotel; however, such use was entirely incidental to the success of the illegal transaction. It did not attain sufficient importance because, coincidentally, the transportation covered ground that had to be covered anyway. Such a remote, brief trip is too casual a use to facilitate this crime. •

The decree of forfeiture is

Reversed.

      . Section 782, 49 U.S.C. § 782, provides for the forfeiture of any vehicle used in violation of Section 781, with exceptions not relevant here.


author: BY THE COURT:

text:
    David GREENHOUSE et al., etc., Plaintiffs-Appellants, v. Most Reverend Charles Pascal GRECO et al., Defendants-Appellees.
    No. 74-1563.
    United States Court of Appeals, Fifth Circuit.
    May 23, 1974.
    Before COLEMAN, DYER and RONEY, Circuit Judges.
   BY THE COURT:

Defendants-appellees move to dismiss plaintiffs-appellants’ interlocutory^ appeal from the District Court’s denial of the right to maintain the action as a' class action. The general rule in this Circuit is that the denial of class action treatment is a non-appealable order’. Graci v. United States, 472 F.2d 124 (5th Cir. 1973). Plaintiffs-appellants’ portion of the case is still pending before the District Court. The denial of a class action has not sounded the “death knell” of the litigation, Songy v. Coastal Chemical Corp., 469 F.2d 709 (5th Cir. 1972); nor is it an appealable “collateral order”, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The District Court’s order is not a final judgment under 28 U.S.C.A. § 1291, Gosa v. Securities Investment Co., 449 F.2d 1330 (5th Cir. 1971); nor is it appealable under 28 U.S.C.A. § 1292(a)(1) as a denial of injunctive relief, Songy v. Coastal Chemical Corp., 469 F.2d 709 (5th Cir. 1972).

It is ordered that appellees’ motion to dismiss the appeal, filed in the above styled and numbered cause, is hereby granted.


author: PER CURIAM:

text:
    Joseph RIDLEY and Woody Jenkins, Plaintiffs-Appellants, v. Cecil McCALL, Chairman, State Board of Pardons and Paroles, et al., etc., Defendants-Appellees.
    No. 73-2923.
    United States Court of Appeals, Fifth Circuit.
    June 26, 1974.

      Hugh M. Dorsey, Jr., W. Lyman Dillon, Atlanta, Ga. (court-appointed), for plaintiffs-appellants.
    Arthur K. Bolton, Atty. Gen., Courtney W. Stanton, Asst. Atty. Gen., Stephen Parker, Deputy Asst. Atty. Gen., Atlanta, Ga., for defendants-appellees.
    Before BROWN, Chief Judge, and RIVES and DYER, Circuit Judges.
   PER CURIAM:

This is a § 1983 suit attacking on a broad front the practices of the Georgia Parole Board. The District Court dismissed the complaint without issuing a show cause order requiring a factual response by the State or holding any evidentiary hearing. The District Court was of the view that this result was compelled by this Court’s en banc decision in Scarpa v. United States Board of Parole, 5 Cir., 1973, 477 F.2d 278. Subsequently the judgment of this Court was vacated and remanded for determination of whether the case was moot, Scarpa v. United States Board of Parole, 1973, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44, and thereafter this Court by order vacated the judgment of the District Court with directions to dismiss the complaint as moot. Consequently, Scarpa has no precedential value.

In view of this we think the interest of orderly administration calls for remand to the District Court for reconsideration. Since these sometime awesome constitutional principles ought not to be explored in a non-factual setting, the Court should take appropriate steps to assure development of the actual facts, not just the pleaded contention of the parties.

Vacated and remanded.


author: VAN DUSEN, Circuit Judge.

text:
    MCI COMMUNICATIONS CORPORATION et al. v. AMERICAN TELEPHONE & TELEGRAPH COMPANY and the Bell Telephone Company of Pennsylvania, Appellants.
    No. 74-1104.
    United States Court of Appeals, Third Circuit.
    Argued April 2, 1974.
    Decided April 15, 1974.

      Irving R. Segal, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Charles Ryan, J. Hugh Roff, Jr., New York City, John B. King, Philadelphia, Pa., for appellants.
    Lewis A. Rivlin, David J. Taylor, Vernon I. Zvoleff, Peabody, Rivlin, Lambert & Dennison, Michael H. Bader, Kenneth A. Cox, William J. Byrnes, Haley, Bader & Potts, Washington, D. C., Raymond W. Midgett, Jr., Dechert, Price & Rhoads, Philadelphia, Pa., for appellees; John R. Worthington, Washington, D. C., of counsel.
    Before VAN DUSEN, WEIS and GARTH, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal challenges a December 31, 1973, district court order granting a mandatory preliminary injunction in the nature of mandamus, pursuant to 47 U. S.C. § 406, ordering defendants to provide plaintiffs with four specific types of interconnection services and “such other interconnection facilities as are necessary to enable plaintiffs to furnish the interstate services they are authorized by the FCC to perform.” Plaintiffs (referred to in this opinion frequently as MCI) provide intercity transmission capability by microwave facilities, including, but not limited to, data transmission. Defendants (referred to in this opinion frequently as AT&T) supply local distribution service for MCI but contend that the district court erred in requiring them to supply the interconnection services described in the December 31, 1973, district court order.

The district court relied on these two Federal Communications Commission (hereinafter FCC) rulings as constituting the orders requiring defendants to provide the interconnection services mandated in its order:

A. Specialized Common Carrier Services, 29 F.C.C.2d 870 (1971).
B. Letter from Chairman of the FCC to the American Telephone & Telegraph Company dated October 4, 1973.

Assuming these documents constituted orders, their terms were only general in imposing any duty to provide interconnection services on defendants and their terms did not specify the furnishing of the inter-exchange service, FX service and CCSA service, to which plaintiffs contend they are entitled.

The Specialized Common Carrier Services proceeding was instituted by a Notice of Inquiry to Formulate Policy, Notice of Proposed Rule Making and Order. docketed as follows (24 F.C.C.2d 317 (1970)):

"In the Matter of Establishment of Policies and Procedures for Consideration of Application To Provide Specialized Common Carrier Services in the Domestic Public Point-to-point Microwave Radio Service and Proposed Amendments to Parts 21, 43, and 61 of the Commission's Rules
- Docket No. 18920"

The Purpose of This Proceeding was stated as follows (871-72 of 29 F.C.C. 2d):

“The Notice undertook to resolve in an overall policy and rule making proceeding certain basic policy and procedural questions (see paragraph 17 below) which appeared common to all of the applications and oppositions, prior to consideration of each proposal on its individual merits (Notice, paragraphs 3, 23-24).....We further emphasized that after the broad policy and procedural questions in this proceeding have been decided, there may remain other specific, factual questions to be resolved by appropriate procedures when the applications are processed (Notice, paragraphs 3, 24). We stated (paragraph 24):
“Once these issues have been determined, we will consider each proposal on its individual merits and follow such procedures as may be necessary to resolve any remaining questions pertinent to the particular set of applications. Each applicant will, of course, be required to make a satisfactory showing that it is qualified and that the service it seeks to offer is technically and economically sound and would otherwise serve the public interest.”

As to MCI, paragraph 7 of the decision provided (874 of 29 F.C.C.2d):

“There are also pending applications by 17 MCI associated companies for portions of a proposed nationwide network to provide specialized private line communications services. The various MCI carriers propose to provide ‘customized’ communications channels tailored to the exact requirements of subscribers needing interoffice and intracompany communications, to meet newly developing data and specialized communications needs of the public at significantly low cost. . Originally, MCI did not propose to provide end-to-end service. It was contemplated that local loop interconnection would be accomplished by the subscriber’s private facilities or, for subscribers requiring only voice grade channels, by use of local land-lines of existing telephone companies. MCI has since filed a petition for rule making (RM 1700) to allocate the frequencies 38.6-40 GHz for a local Carrier Distribution Service.”

The opinion continued at page 878 (paragraph 17) to list the issues to be considered, including issue E stated as follows:

“E. What is the appropriate means for local distribution of the proposed services ?”

At page 940-41 of 29 F.C.C.2d, the FCC concluded as to Issue E:

“157. We reaffirm the view expressed in the Notice (paragraph 67) that established carriers with exchange facilities should, upon request, permit interconnection or leased channel arrangements on reasonable terms and conditions to be negotiated with the new carriers, and also afford their customers the option of obtaining local distribution service under reasonable terms set forth in the tariff schedules of the local carrier. Moreover, as there stated, ‘where a carrier has monopoly control over essential facilities we will not condone any policy or practice whereby such carrier would discriminate in favor of an affiliated carrier or show favoritism among competitors.’ In view of the representations of AT&T and GT&E in this proceeding, upon which we rely, and the self-interest of other independent telephone companies in not losing potential new business, there appears to be no need to say more on this question at this time. Should any future problem arise, we will act expeditiously to take such measures as are necessary and appropriate in the public interest to implement and enforce the policies and objectives of this Decision.
“158. We also conclude that new carriers should have the option of constructing their own independent local facilities to provide end-to-end service. However, this record does not afford an adequate basis for any determination as to what radio frequencies should be made available for use in this conjunction. .
“159. Accordingly, we have decided to issue a further notice of proposed rule making on MCI’s proposal to allocate the frequencies 38.6-40 GHz for a local carrier distribution service, and to include comparative consideration of frequencies in the other regions of the spectrum that have been suggested (11 GHz, 18 GHz, 30 GHz and 50 GHz .... We will issue the further notice as soon as possible and expedite the further proceedings on this question. For, we realize that this aspect should be resolved at an early date so that those authorized entrants contemplating local construction can plan and build such facilities without delay to the inauguration of the system.
“We also conclude that further proceedings are necessary for a resolution of Issues D and E herein, and will retain full jurisdiction over those aspects of this proceeding.”
[Footnotes in decision omitted.)

In Appendix C to the Decision, the comments of the participants on Issues A, B & E were summarized, but no significant claim by MCI of the right to have FX, CCSA or similar interconnection services (as opposed to the term “local distribution of proposed services”) furnished by AT&T appears in either the decision or its appendices.

The October 4, 1973, letter order of the FCC was primarily focused on the contention of defendants that tariffs covering interconnections with plaintiffs should be filed with the state commissions, as opposed to with the FCC. It concluded with this language:

“[W]e do not accept the conclusion stated in your letter of September 28th that the arrangements described therein, including your proposal to file the subject tariffs with the state commissions, ‘will achieve the Commission’s objective stated in the Specialized Common Carrier case that the specialized carriers be afforded interconnection facility arrangements on reasonable terms and conditions’. To the contrary, we are of the view that effective implementation of our policy objectives and the statutory scheme of the Communications Act require that you promptly file tariff schedules with this Commission in accordance with Section 203 of the Communications Act which tariff schedules will provide the interconnection facilities essential to the rendition by the specialized carriers of all their authorized services on terms and conditions which are just, reasonable and non-discriminatory. Until such tariffs are filed and effective, there should be no delay in honoring requests of specialized carriers for interconnection facilities required by such carriers to terminate the services they are authorized by the Commission to furnish. Such facilities can be provided under contracts on an interim basis and we assume that this will be done.”

On December 13, 1973, the FCC released at Docket 19896 a Memorandum Opinion and Order To Show Cause (484a) reciting conflicting points of view between plaintiffs and defendants, as well as certain differences between Western Union and defendants, which contained this wording:

“4. These matters raise interrelated questions concerning the lawfulness of the actions taken by AT&T and the Bell System companies with respect to the provision of interconnection facilities to the specialized carriers including Western Union and domestic satellite carriers. Our view is that prompt and effective action should be taken to resolve these questions. [485a]
“16. Based on the record here before us, there appears to be no material disputed fact and thus no necessity for designating these matters for an evidentiary hearing. . . . These are questions of law which, in our judgment can be promptly resolved on brief and oral argument. [492a]
“17. Accordingly, It Is Ordered . . . that this matter is Designated for Oral Argument before the Commission, en banc, at its offices in Washington, D.C. on March 4, 1974 at 9:30 a. m.
“18. It Is Further Ordered, That, AT&T, Bell Telephone Company of Pennsylvania, . . . jointly and severally are named respondents herein and Are Directed to Show Cause why all or any of them should not be ordered to cease and desist from:
(b) engaging in any conduct which results in a denial of, or unreasonable delay in establishing, physical connections with MCI for its authorized or pending interstate services;
(c) implementing any policy or practice which forecloses the establishment of through routes, and charges, facilities and regulations applicable thereto, in connection with MCI’s authorized or pending interstate services;
(e) implementing any policy or practice which results in denying MCI interconnection privileges similar to those presently provided to AT&T’s Long Lines Department in connection with its authorized or pending interstate services;
“19. It Is Further Ordered, That the parties shall address themselves to the questions of whether (1) the Commission has heretofore ordered the telephone companies, pursuant to Section 201(a) of the Communications Act, to provide interconnection with MCI or whether such interconnection is otherwise required pursuant to rule or regulation within the meaning of Section 312 of the Act; (2) if so, (a) the scope of that order or rule or regulation with particular reference to interconnection for FX and CCSA services of MCI; (b) whether the telephone companies have complied with such order, rule or regulation and, (c) if they have not complied, the appropriate remedy, whether under Section 312 of the Act or otherwise; (3) if interconnection has not hitherto been ordered or required by rule or regulation whether it should be and, if so, upon what terms and conditions; .... [493a-494a]
“22. It Is Further Ordered, That each respondent and party intending to participate in the oral argument shall file a brief on or before January 21, 1974, and a statement of intention to appear, specifying the amount of time requested for oral argument, by no later than December 27, 1973, and may file reply comments on or before February 4, 1974. . . . ” [495a]

The district court held that in order to be entitled to the relief provided for under 47 U.S.C. § 406 and granted by the district court order in this case, plaintiffs must show that defendants’ “duties under the Act would have to be clear and unequivocal” (p. 32 of district court opinion). See Baltimore & Ohio RR. v. Pitcairn Coal Co., 215 U.S. 481, 499-500, 30 S.Ct. 164, 54 L.Ed. 292 (1919).

In this appeal, AT&T has advanced numerous contentions challenging the district court’s grant of the preliminary mandatory injunction requiring AT&T to furnish the interconnections requested by MCI. A principal contention of ..AT&T is that the district court should have refrained from granting relief, under the doctrine of “primary jurisdiction,” until the FCC had an opportunity to pass upon such issues. Under the facts of this case, we have concluded that the district court erred in not staying any action by it, at the least after December 13, 1973, until the FCC had had an opportunity to act on its above-mentioned proceeding at Docket No. 19896 where argument was scheduled for and held on March 4, 1974, particularly because until that proceeding is resolved defendants will not have the “clear and unequivocal duties” referred to above at page 9 of this opinion. The Supreme Court, in Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952), defined the doctrine of primary jurisdiction as

“a principle, now firmly established, that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedures.”

The doctrine of primary jurisdiction has been developed by courts in order to avoid conflict between the courts and an administrative agency arising from either the court’s lack of expertise with the subject matter of the agency’s regulation or from contradictory rulings by the agency and the court. Under the doctrine, a court should refer a matter to an administrative agency for resolution, even if the matter is otherwise properly before the court, if it appears that the matter involves technical or policy considerations which are beyond the court’s ordinary competence and within the agency’s particular field of expertise.

This court recently had occasion to apply the doctrine of primary jurisdiction in Laveson v. Trans World Airlines, 471 F.2d 76 (3d Cir. 1972), when, in a suit alleging that airline companies unlawfully conspired to fix the price to coach passengers for the rental of headsets used with inflight motion pictures, we affirmed a district court’s decision to stay its hand pending resort to the Civil Aeronautics Board for resolution of the question:

“Because of the possibility that, in exercising its power over the subject matter of this controversy, the Board may approve the agreement here alleged to violate the antitrust laws, we hold that prior resort by plaintiffs to the CAB is required.”

471 F.2d at 81.

We have concluded in this case, as in Laveson, that the district court should have deferred to the appropriate administrative . agency, the FCC, under the doctrine of primary jurisdiction for two principal reasons. First, assuming, without deciding, that the Specialized Carrier decision and the FCC’s October. 4 letter are, as plaintiffs contend, valid interconnection orders, there nevertheless remains a substantial question whether such orders embraced the particular types of interconnection requested by MCI in this case, namely, interconnections enabling MCI to provide FX and CCSA service and local connections reaching the premises of customers located outside local distribution areas (“interexchange services”). Secondly, even assuming that the types of interconnection requested by MCI appeared, at the time this suit was brought, to be embraced by the Specialized Carrier decision and the October 4 letter, the initiation of proceedings by the FCC on December 13, 1973, in which the FCC undertook to resolve the same issues raised by MCI in this suit, made it appropriate for the district court to defer to the FCC under the doctrine of primary jurisdiction in order to avoid conflict with the FCC in the resolution of those issues.

At the core of the dispute between the parties in this case lies the question of the existence and scope of any obligation on the part of AT&T, under the Specialized Carrier decision and the October 4 letter, to interconnect MCI into the switched network for FX or CCSA service or to provide it with local connections outside the local distribution area. An examination of these two Commission pronouncements reveals that the existence and scope of any such obligation on the part of AT&T is so unclear that deferral to the expertise of the FCC is both desirable and appropriate.

In its Specialized Carrier decision, the FCC did not mention FX, CCSA and interexchange services by name. Instead, the FCC merely stated that

“established carriers with exchange facilities should, upon request, permit interconnection or leased channel arrangements on reasonable terms and conditions to be negotiated with the new carriers, and also afford their customers the option of obtaining local distribution service under reasonable terms set forth in the tariff schedules of the local carrier.”

29 F.C.C.2d at 940. Likewise, in the October 4 letter, the FCC did not mention FX, CCSA and interexchange services by name in ordering AT&T to provide local distribution facilities. The FCC merely reaffirmed in general terms' the language of its previous pronouncements :

“[0]ur MCI and Specialized Common Carrier decisions made it clear that the Bell System companies would be expected to provide, on reasonable terms and conditions, interconnection of such facilities as required by the specialized carriers to terminate the services which such specialized carriers have been duly authorized in the public interest by this Commission to provide.
“There should be no delay in honoring requests of specialized carriers for interconnection facilities required by such carriers to terminate the services they are authorized by the Commission to furnish.”

The October 4 letter, while reaffirming that AT&T was expected to provide interconnection to terminate the services which the specialized carriers had been authorized to provide, failed to resolve the critical question of exactly what services the specialized carriers had been authorized to perform in the 1971 decision and whether FX, CCSA and interexchange services were properly required to be supplied in 1973 to plaintiffs’ customers in light of the defendants’ volume of business and facilities at this time.

MCI contends that the Specialized Carrier decision and the October 4 letter clearly embraced FX, CCSA and interexchange services, even though such orders did not mention such services in haec verba, because there was no reason for the FCC to be more specific and to distinguish among the different private line services offered by the specialized carriers. Specifically, MCI states that AT&T itself had never differentiated among various classes of private line services but that it had simply opposed in general any competitive entry into the private line communications field by the specialized carriers. In addition, MCI asserts that AT&T’s representation to the FCC that it would be willing to discuss arrangements “for any connections required of the telephone companies” made it unnecessary for the FCC. to refer specifically to various types of private line services. Finally, MCI contends that the fact that the FCC used general language, rather than referring to specific types of private line services, indicates that its orders comprehended all of the then existing forms of private line communications, of which FX and CCSA were a part.

AT&T contends, on the other hand, that the Specialized Carrier decision and the October 4 letter do not comprehend interconnection into the switched networks of existing carriers. Specifically, AT&T points out that, in the comments filed by MCI with the FCC in the Specialized Carrier case, MCI repeatedly emphasized that it sought to offer “point-to-point” service connecting its customers’ promises, and that “no switching between customers” in the switched network would be involved. AT&T argues that MCI also urged that the FCC should encourage existing carriers, including AT&T, to provide “local loops.” We have concluded that there was sufficient uncertainty concerning the existence and scope of AT&T’s obligation to provide interconnections into the switched network for the FX, CCSA, and interexehange services that the district court should have deferred to the FCC in determining exactly what private line services had been authorized by the FCC. Deferral to the FCC under the doctrine of primary jurisdiction is particularly appropriate in this case not simply because of the fact of uncertainty concerning the issue of what private line services have been authorized, but also because of the nature of the issue. For a court to resolve this issue results in a judicial determination of the scope of permissible competition between the specialized carriers, such as MCI, and the existing carriers, such as AT&T. Such a determination, involving, as it must, the comparative evaluation of complex technical, economic, and policy factors, as well as consideration of the public interest, should be made, in the first instance, by the administrative agency which has been entrusted with the primary responsibility for making such a determination and which has the expertise necessary for the development of sound regulatory policy.

Despite the above considerations, the district court determined “that the purposes of the primary jurisdiction doctrine would not be served by a preliminary referral of this matter to the FCC.” The district court gave three reasons for this conclusion:

“First, the questions raised by the plaintiffs’ motion for a preliminary injunction and defendants’ opposition to it are all within the ordinary experience of the judiciary; the Court is not being asked to decide whether interconnection is necessary, convenient or in the public interest, nor is it being asked to pass upon the reasonableness of tariffs filed with the FCC. Second, a preliminary referral to the FCC would be futile because the FCC, in its orders in Docket No. 18920 and in the letter to AT&T’s Emerson dated October 4, 1973, has already passed upon the question of the scope of AT&T’s duties in the present matter. Third, the fact that the FCC has already ruled upon the interconnections in question removes the danger of inconsistent rulings, since this Court will merely be enforcing the FCC’s orders.”

We do not find this reasoning persuasive. As to the first reason, we do not feel that the difficult issue of whether the interconnection services requested by MCI are embraced by the Specialized Carrier decision and the October 4 letter is within the ordinary experience of the judiciary, but, even assuming that it is, the Supreme Court has indicated that the primary jurisdiction doctrine may be applicable in such a situation. In Far East Conference v. United States, supra, 342 U.S. at 574, 72 S.Ct. at 494, the Court stated that the doctrine of primary jurisdiction may apply “even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined.” The district court’s second reason, namely, that the FCC has already ordered AT&T to provide the interconnections requested by MCI, merely begs the central and difficult issue in the ease. Finally, the third reason is unpersuasive since the FCC’s initiation of proceedings on December 13 to examine whether it has ordered AT&T to provide the interconnections requested by MCI clearly raises the possibility of inconsistent rulings by the district court and the FCC. It is precisely this problem of inconsistent judicial and administrative rulings which the primary jurisdiction doctrine is designed to avoid. See Atchison, T.&S.F. Ry. v. Wichita Board of Trade, 412 U.S. 800, 821, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973). That the possibility of such inconsistent rulings is not remote in this case is indicated by a recent statement by counsel for the FCC to the United States Court of Appeals for the Second Circuit that, in the proceeding initiated by the December 13 order, “the Commission could rule that it was never its intention to allow MCI to provide ‘FX’ or ‘CCSA’ service.”

In addition to the above-enumerated reasons why the district court should have applied the doctrine of primary jurisdiction in the instant case, we have concluded that the initiation of proceedings by the FCC on December 13, 1973, made application of the doctrine even more appropriate. In its Memorandum Opinion and Order to Show Cause, dated December 13, 1973, the FCC directed AT&T and other interested parties to file briefs and present oral argument on a number of issues relating to interconnection. Among the issues which the Commission requested the parties to address were the questions “whether (1) the Commission has heretofore ordered the telephone companies, pursuant to Section 201(a) of the Communications Act, to provide interconnection with MCI, or whether such interconnection is otherwise required . . . ; ” (2) if so, the scope of any such requirement “with particular reference to interconnection for FX and CCSA services;” and (3) “if interconnection has not hitherto been ordered or required by rule or regulation whether it should be, and, if so, upon what terms and conditions.”

This action by the FCC indicates at the very least that the existence and scope of interconnection orders requiring AT&T to furnish the interconnection services requested by MCI are open to legitimate dispute. In light of the uncertainty concerning interconnection raised by the FCC itself in the institution of this proceeding, the district court should have awaited resolution of the interconnection issues by the FCC.

For the foregoing reasons, the December 31, 1973, district court preliminary injunction order will be vacated and the case remanded with directions that proceedings in the district court be stayed and.jurisdiction be retained. The certified judgment in lieu of mandate or the mandate shall issue forthwith.

APPENDIX TO OPINION OF APRIL 15, 1974, in MCI COMMUNICATIONS CORPORATION, et al. v. AMERICAN TELEPHONE & TELEGRAPH COMPANY, et al., No. 74-1104

Excerpts from Appendix C of

Specialized Common Carriers Services, 29 F.C.C.2d 870, 949 ff. (1971)

The summary of the Comments and Reply Comments of plaintiffs, defendants, Western Union, and United States Independent Telephone Association include the following:

I. Plaintiffs
A. “The MCI Carriers (MCI) urge the Commission to spin-off Issues A and B for immediate decision, and to commence processing applications pending a resolution of Issues C-E on which no serious problem is anticipated. . . .” (page 949)
B. “Local distribution
“MCI believes that local distribution does not present any truly serious problem and that, with flexibility of approach, local loop facilities will be available in one form or another. It notes similar views by others filing in this proceeding. Where existing carriers have circuits of the required quality at reasonable rates, subscribers of the specialized carriers should be encouraged to employ such facilities. MCI states that it is encouraged by-statements of AT&T and GT&E in this proceeding concerning interconnection. However, if local telephone company interconnection is unsuitable, there appear to be a variety of possibilities as reflected in the comments filed by equipment manufacturers in this proceeding.” (page 952)

II. Defendants

“Issue E — Local Distribution
“In general, AT&T believes that a carrier should accept total responsibility for its service. The end-to-end concept clearly fixes responsibility, is conducive to lower administrative costs, precludes a carrier from choosing the more profitable portions of an overall service and leaving the more difficult and expensive portions to others, and avoids problems of possible subsidization of one carrier by another. However, there may be situations where this is impracticable. Bell has connecting arrangements with other common carriers and has a tariff offering of entrance facilities for connection to customer-provided facilities. It states: ‘When the Commission determines that it is in the public interest to license additional intercity common carriers, we would be willing to discuss with them the technical arrangements required and the appropriate charges for any interconnection required of the telephone companies.’ ” (page 962)

III. Western Union

“Issue E — Local Distribution: Western Union urges the Commission not to pre-judge the technical and economic feasibility of interconnection, but rather to hold hearings on such questions. It further asserts that new construction of alternative facilities would involve such a high initial investment that it could only be supported by high density users in a small area and may make it impossible to serve all customers even in a confined area. The Commission should study posible use of frequencies above 17 GHz in a separate proceeding. While the MCI petition for rule making is consonant with this recommendation, Western Union believes that evidentiary hearings are required. . ” (page 965)

IV. - United States Independent Telephone Association

“Issue E — The Commission’s jurisdiction to require independents to make new service offerings over local facilities is doubtful, and in the case of connecting carriers is limited. In any case, interconnection may pose problems for telephone companies and it should be required only after a hearing to develop specific facts. . . . ” (page 966)

      . 47 U.S.O. § 406 provides, inter alia:

      “The district courts of the United States shall have jurisdiction upon the relation of any person alleging any violation, by a carrier subject to this chapter, of any of the provisions of this chapter which prevent the relator from receiving service in interstate or foreign communication by wire or radio . . . from said carrier at the same charges, or upon terms or conditions as favorable as those given by said carrier for like communication or transmission under similar conditions to any other person, to issue a writ or writs of mandamus against said carrier commanding such carrier to furnish facilities for such communication or transmission to the party applying for the writ: . . .
      In view of the terms of F.R.Civ.P. 81(b), the parties apparently concede that pleading in relator form for mandamus is not now required. See McBride v. Western Union Tel. Co., 171 F.2d 1 (9th Cir. 1948).

      . The order (369 F.Supp. 1004, 1029) contains this language:
      “Defendants The Bell Telephone Company of Pennsylvania and the American Telephone and Telegraph Company are Ordered to provide to plaintiffs:
      (a) Interstate ‘Foreign Exchange’ service, comparable to AT&T’s Series 2006-FX service offered under AT&T interstate Tariff 260, involving an MCI interstate circuit connected at MOI’s local terminal to a business telephone arrangement supplied by defendant The Bell Telephone Company of Pennsylvania.
      (b) Interstate services on a through basis utilizing local connecting facilities of The Bell Telephone Company of Pennsylvania to interconnect the local terminal facilities of MCI and one or more other specialized common carriers.
      (c) Interstate private line services connecting common control switching arrangement (COSA) facilities, involving connection of MCI’s terminal to a CCSA facility supplied by The Bell Telephone Company of Pennsylvania, as is now done for AT&T when its Long Lines Department offers this service under AT&T’s interstate Tariff 260.
      (d) Interstate services terminating at the premises of plaintiffs’ customers which are located in communities nearby to cities where MCI’s terminals are situated, but outside the local service areas as defined by The Bell Telephone Company of Pennsylvania. These services require forms of interconnection regularly made available to Western Union and to AT&T’s Long Lines Department, and include situations where part of the circuit to a remote customer’s location is supplied by a second telephone company.

        (e) Such other interconnection facilities as are necessary to enable plaintiffs to furnish the interstate services they are authorized by the FCC to perform.”

      . MCI Communications Corporation is the parent of the other companies and is not a common carrier. All the other MCI carriers are common carriers subject to the Communications Act.

      . See Finding of Fact 20 at page 4 of district court opinion.

      . FX service and CCSA service are defined as follows in Findings of Fact 14 and 16 of the district court opinion:
      “14. FX (Foreign Exchange) service is a form of ‘switched’ service, which allows a businessman located in one state to, in effect, maintain a local phone within another state. Under Foreign Exchange service, a businessman can be reached by customers in a different state and can himself reach another state through a telephone line which has the appearance to those customers of being a local telephone in their city.
      “16. Common Control Switching Arrangement (CCSA) is a private line system for linking the various offices of a large company through large switches on a local telephone company’s premises instead of through the PBX switches on the customers’ premises.”

      . At page 879 of 29 F.C.C.2d, this language appears:
      “Finally, on Issue E the Notice proposed that new carriers and their customers should have the option of achieving local distribution through interconnection with local telephone carriers or through construction of independent local facilities and, in the latter connection, requested comments on the use of wire, cable, and/or radio — particularly frequencies in the vicinity of 11 GHz or in some portion of the spectrum above 11 GHz, such as 18 or 50 GHz (Notice, paragraphs 66-70).”

      . At page 939 of 29 F.C.C.2d, the decision contained this wording:
      “AT&T says that: ‘When the Commission determines that it is in the public interest to license additional intercity common carriers, we would be willing to discuss with them the technical arrangements required and appropriate charges for any connections required of the telephone companies.’ GT&E states that, with adequate lead time, it will provide local distribution services to any authorized carrier. MCI claims to be encouraged by the statements of AT&T and GT&E on this score. Western Union urges the Commission not to pre-judge the technical and economic feasibility of interconnection in this proceeding, and to hold individual evidentiary hearings on interconnection for each new system.”

      . The doctrine was created by the Supreme Court in Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907). For general discussions of the doctrine and cases in which it has been applied, see Jaffe, Primary Jurisdiction, 77 Harv.L.Rev. 1.037 (1964); von Mehren, The Antitrust Laws and Regulated Industries : The Doctrine of Primary Jurisdiction, 67 Harv.L.Rev. 929 (1954); Schwartz, Legal Restriction of Competition in the Regulated Industries: An Abdication of Judicial Responsibility, 67 Harv.L.Rev. 436 (1954).

      . AT&T has contended in this appeal that neither the Specialized Carrier decision nor the October 4 letter are valid interconnection orders under Section 201(a) of the Communications Act, 47 U.S.C. § 201(a). Because of our disposition of this appeal on primary jurisdiction grounds, resolution of this issue is unnecessary.

      . AT&T emphasizes that the FCC, both in its notice of rulemaking and in the Specialized Carrier decision, repeatedly discussed interconnection in terms of “loop service,” “loop facilities,” and “loop[s] to the subscriber’s premises.” See 24 F.C.C.2d at 347; 29 F.C.C.2d at 874-76, 938-40. In the Specialized Carrier decision, the FCC also described MCI’s position as being the “local distribution does not present any truly serious problem and that, with flexibility of approach, local loop facilities will be available in one form or another.” 29 F.C.C.2d at 952.

      . We note that in the one case decided by this court involving an action under § 406 of the Communications Act, this court pointed out the applicability of the primary jurisdiction doctrine:
      “The ostensible reason for appellants’ refusal to challenge the reasonableness of the tariffs or of Bell’s activity in terminating their service appears to be their reluctance to contend with the familiar doctrine of ‘primary jurisdiction.’ As stated in 3 Davis, Administrative Law Treatise § 19.01 at 3 (1958) : ‘The precise function of the doctrine of primary jurisdiction is to guide a court in determining whether the court should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court.’ There can be little doubt that if appellants had attacked the reasonableness of Bell’s practice or of the tariffs herein the district court would have found primary jurisdiction in either the Pennsylvania Public Utility Commission or the Federal Communications Commission.”
      See Palermo v. Bell Telephone Co. of Pennsylvania, 415 F.2d 298, 300 n. 4 (3d Cir. 1969).

      . In Atchison, supra, the Supreme Court, in vacating an injunction against railroad rates, noted:
      “[T]he issuance of an injunction pending further administrative action may indicate what the court believes is permitted by national transportation policy, prior to an expression by the Commission of its view. This is precisely what the doctrine of primary jurisdiction is designed to avoid.” 412 U.S. at 821, 93 S.Ct. at 2382 (1973).

      . See Appendix at 758a.

      . In its “Memorandum Opinion and Order,” released February 11, 1974, denying the request of AT&T for an evidentiary hearing, the FCC stated:
      “Among the matters upon which we have directed the parties to comment are questions going to whether the Commission had heretofore ordered Bell to provide interconnection pursuant to Section 201(a) of the Act, whether such interconnection is required pursuant to rule or regulation within the contemplation of Section 312 and, if so, the scope of the order or rule or regulation with particular reference to interconnection for FX and CCSA services. In our view these and other legal and policy issues discussed in our order scheduling oral argument should be resolved as expeditiously as possible . . . . ”
      See Appendix at 860a-861a.

      . See Laveson v. Trans World Airlines, supra, 471 F.2d at 84.

      . The motion by appellants to supplement the appendix, filed March 22, 1974, has been granted.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. J. W. ROBINSON, Mario Escandar, Carlos Escandar, Aleida Jiminez, Georgina Lafont-Escandar, Margarita Arce De-Armas, Defendants-Appellants.
    No. 71-1058.
    United States Court of Appeals, Fifth Circuit.
    June 28, 1974.

      Donald I. Bierman and Henry R. Carr, Miami, Fla., court appointed counsel, for Robinson.
    Donald I. Bierman, Bierman, Sonnett & Beiley P. A., Miami, Fla., for M. Escandar, C. Escandar, Jiminez, Lafont-Escandar.
    James J. Hogan and Alan E. Weinstein, Miami Beach, Fla. (Court-appointed), for Margarita Arce De Armas.
    Jose E. Martinez, Jerome P. Ullman, George A. Kokus, Asst. U. S. Attys., Miami, Fla., John J. Robinson, Atty. U. S. Dept. of Justice, Crim. Div., Washington, D. C., for plaintiff-appellee.
    Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   PER CURIAM:

On our previous consideration of this appeal we remanded the case to the district court for an evidentiary hearing to determine whether wiretap applications were properly authorized under 18 U.S. C.A. § 2516(1). United States v. Robinson, 5 Cir. 1973, 472 F.2d 973 (en banc).

The district court, after an extensive hearing, determined that the wiretaps sub judice violated section 2516(1) in that the applications for electronic surveillance orders were not authorized by the Attorney General, or by an Assistant Attorney General specially designated by him.

Since the evidence used to convict the defendants is conceded to have eventuated from the improperly authorized wiretaps, such evidence was subject to exclusion under 18 U.S.C.A. § 2515. United States v. Giordano, 1974, - U.S. -, 94 S.Ct. 1820, 40 L.Ed.2d 341 [42 L.W. 4642]. The judgments of conviction are reversed and these appeals are remanded to the district court for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: HIRAM H. WARD, District Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PEPSI COLA COMPANY OF LUMBERTON, INC., Respondent.
    No. 73-1834.
    United States Court of Appeals, Fourth Circuit.
    Argued March 6, 1974.
    Decided May 8, 1974.

      Paul J. Spielberg and John Depenbrock, Attys., N. L. R. B. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., on brief), for petitioner.
    Joel I. Keiler, Washington, D.C., for respondent.
    Before CRAVEN and WIDENER, Circuit Judges, and WARD, District Judge.

       M.D.N.C., sitting by designation.

   HIRAM H. WARD, District Judge.

The National Labor Relations Board has petitioned for enforcement of an order directing Respondent to cease and desist from unfair labor practices committed in connection with a strike in April 1972, and to reinstate four strikers with back pay. We enforce the Board’s order except as it requires reinstatement of Charles Taylor and William Jones.

We are satisfied that substantial evidence supports the Board’s conclusion that Respondent’s plant manager engaged in interrogation and surveillance in violation of Section 8(a)(1), 29 U.S. C. § 158(a)(1), and its decision that the discharge of route driver Val Iacona was motivated by antiunion considerations in violation of Section 8(a)(1) and (3), 29 U.S.C. § 158(a)(1) and (3). The only aspect of the Board’s order that troubles us is its order for reinstatement of two employees who joined in a strike to protest Iacona’s discharge.

There is no question that the week-long strike was motivated solely by Iacona’s discharge and was, therefore, an unfair labor practice strike. On April 12 the union representative, acting for the strikers, made an unconditional offer to return to work. Respondent refused to reinstate several of the strikers on the ground that they were guilty of serious strike misconduct.

The Administrative Law Judge made extensive factual findings and ordered four employees reinstated. The Board adopted his recommendation of reinstatement as to Jerry Bailey and Charles Taylor added the name of William Jones to the reinstatement list, but refused to reinstate Iacona and William DeBerry. Its order to reinstate Bailey, as well as denying reinstatement of Iacona and DeBerry, is thoroughly justified by the record and is based upon substantial evidence. Under our previous decisions, however, Charles Taylor’s conduct justified Respondent’s refusal to reinstate him and the Administrative Law Judge properly concluded that Respondent was under no obligation to reinstate Jones.

Taylor was involved in three separate incidents of a questionable nature during the strike, but one incident is more serious than the other two. Taylor approached a car where a prospective job-seeker and his wife were sitting, stuck his head in the window, and said, “I know where you live, and if you go in there to work, I’ll come looking for you.” The job-seeker left the premises. The hearing judge commented only briefly on this incident:

With regard [to] the incident of the threat which took place on the first day of the strike, to the extent that it is a threat, I do not believe that it is of such nature as to warrant Taylor’s disqualification for reinstatement.

The Board adopted this recommendation without comment.

Our previous decisions establish that strikers are entitled “to use arguments in support of their position and to attempt by proper means to induce other persons not to work at the jobs that they have vacated by striking.” National Labor Rel. Bd. v. Longview Furniture Co., 206 F.2d 274, 276 (4th Cir. 1953). We have held, however, that “their persuasive efforts cannot be free of all restraints but must be circumscribed and confined within reasonable limits if such strikers are to be protected in their right to reinstatement to their former positions to which the courts have held they are entitled.” Oneita Knitting Mills, Inc. v. N. L. R. B., 375 F.2d 385, 390-391 (4th Cir. 1967). Recognizing that some confrontations between strikers and nonstrikers are inevitable, we have drawn the line at conduct that is intended to threaten or intimidate non-strikers. Oneita Knitting Mills, supra. The Board apparently drew a different distinction in this case. Refusing to order Iacona’s reinstatement because he had made “a specific threat of personal physical harm” to a driver who worked during the strike, it must have con-eluded that Taylor’s threat was less serious. We cannot agree that a veiled threat is substantially different from one delivered with less subtlety. Under any of the three versions, Taylor’s words crossed the line from persuasion to threats and intimidation.

Our final concern is the Board’s order that the employer reinstate William Jones, who made no personal application for reinstatement at the end of the strike. Following the union representative’s telephone offer on behalf of the strikers, the employer invited the men to return to the plant and interviewed them individually on April 12. Jones did not appear. On April 14 the Respondent sent him a certified letter notifying him that his position had been filled by a permanent replacement and that his name had been placed on a preferential hiring list. The record clearly indicates that Jones has had no contact with either the Respondent or the union from the time the strike ended until the N.L.R.B. hearing. Moreover, at the latter time, he was apparently in the Armed Services.

As an unfair labor practice striker, Jones was entitled to reinstatement upon application even if the employer had hired a permanent replacement. The Board held that Jones would be excused from applying for reinstatement because “his application would have been utterly futile.” Even if Jones would have been told on April 12 that he had been permanently replaced, we cannot agree that the employer committed an unfair labor practice by failing to reinstate him when he did not come back for his job. This is not a situation in which the employee may be excused from applying for reinstatement because he has already received notification of his replacement. Cf., e. g., Colecraft Manufacturing Co. v. N. L. R. B., 385 F.2d 998 (2d Cir. 1967); N. L. R. B. v. Comfort, Inc., 365 F.2d 867 (8th Cir. 1966). Although Respondent would have been obligated to reinstate Jones if he had applied for reinstatement within a reasonable period after the end of the strike, that obligation is conditioned on the application. The Board may not dispense with the requirement for application when the employee has been in touch with neither the employer nor the union unless circumstances show that, the employer had already made clear an intention not to reinstate him.

Enforced in part, vacated in part, and remanded.

      . This is the version given by Company Attorney Keiler, who was on the scene. Mrs. Brindle testified that Taylor said, “[H]e knew where we lived at and he would be to see us.” She added, “[H]e didn’t say anything about getting us or anything like that. He just said he would be to see us.” Mr. Brindle recalled Taylor’s words as “I know where you live at.” He was not asked whether Taylor said anything more. The hearing judge did not resolve this conflict in testimony, apparently because he concluded that even Keiler’s version would not disqualify Taylor for reinstatement. We think that the implied threat is the same in all three versions.

      . The Board’s opinion recorded Iacona’s threat as follows: “Iacona told Smith that ‘Flippen had been beaten up, that the guys that did it were in' cars riding around, and he’d be better off if he went back to the plant.’ ” The Board was confident that Iacona meant to threaten Smith rather than to warn him.

      . Unlike discharging a striker, the act of hiring a permanent replacement is not an unfair labor practice. The unfair labor practice consists of refusing to reinstate the unfair labor practice striker when he applies for his job. As courts and the Board have stated the rule, the unfair labor practice striker has a right to be reinstated to his job even though the employer has hired a replacement. E. g., N.L.R.B. v. Comfort, Inc., 365 F.2d 867 (8th Cir. 1966); Bob White Target Co., 189 N.L.R.B. 913, 77 L. R. R.M. 1201 (1971), enforcement denied on other grounds, sub nom., Cannady v. N.L.R.B., 466 F.2d 583 (10th Cir. 1972) (holding that workers were engaged in economic strike rather than unfair labor practice strike); J. H. Rutter-Rex Mfg. Co., Inc., 158 N.L.R.B. 1414 (1966), enforced in part, 399 F.2d 356 (5th Cir. 1968), rev’d, 396 U. S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969) (reversing the Court of Appeals’ modification of Board order). The employer is free to hire replacements during an unfair labor practice strike, but he must make room for the strikers when they return, firing the replacements if necessary.