author: J. SKELLY WRIGHT, Circuit Judge: BAZELON, Chief Judge,

text:
    The KING’S GARDEN, INC., Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents
    No. 73-1896.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 11, 1974.
    Decided May 6, 1974.

      Morton L. Berfield, Washington, D. C., with whom Lewis I. Cohen, Washington, D. C., was on the brief, for petitioner.
    John E. Ingle, Counsel, F. C. C., with-whom John W. Pettit, Gen. Counsel, and Joseph A. Marino, Associate Gen. Counsel, F. C. C., were on the brief, for respondent.
    Melvin L. Wulf, New York City, and Joseph Remcho, San Francisco, Cal., filed a brief on behalf of American Civil Liberties Union et al. as amici curiae.
    Before BAZELON, Chief Judge, WRIGHT, Circuit Judge, and WYZANSKI, Senior District Judge.

       Of the United States District Court for the District of Massachusetts, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   J. SKELLY WRIGHT, Circuit Judge:

Petitioner is a non-profit, interdenominational, religious, and charitable organization. Its activities include a number of ministries whose basic goal is to “share Christ world wide” (Record at p. 15). Petitioner is also the licensee of Radio Stations KBIQ-FM and KGDN in Edmonds, Washington. In these proceedings it seeks review of an order of the Federal Communications Commission which found that it was discriminating on religious grounds in its employment practices and directed it to submit to the Commission a statement of its future hiring practices and policies. Petitioner relies upon a 1972 amendment to Title VII of the 1964 Civil Rights Act which exempts all activities of any “religious corporation, association, educational institution, or society” from the Act’s ban on religious discrimination in employment. (Hereinafter the 1972 exemption.) Before 1972 only the “religious activities” of such organizations had been exempted. Petitioner would require the Federal Communications Commission to engraft the 1972 exemption on to the Commission’s own rules against sectarian employment practices, promulgated under the “public interest” standard of the Communications Act. The Commission already exempts employment “connected with the espousal of the licensee’s religious views.” Petitioner contends that a sectarian licensee, like itself, must be allowed to discriminate on religious grounds in all of its employment practices.

We affirm the Commission rulings. The 1972 exemption is of very doubtful constitutionality, and Congress has given absolutely no indication that it wished to impose the exemption upon the FCC. Under these circumstances the Commission is fully justified in finding that the exemption does not control its “public interest” mandate under the Communications Act. The limited exemption which the FCC currently recognizes to its own anti-bias rules adequately protects a sectarian licensee’s rights under the Communications Act and the First Amendment. Accordingly we uphold the Commission’s regulatory scheme as facially sound, while recognizing that its future application will require continuing judicial scrutiny.

I

The sponsors of the 1972 exemption were chiefly concerned to preserve the statutory power of sectarian schools and colleges to discriminate on religious grounds in the hiring of all of their employees. But the exemption’s simple and unqualified terms obviously accomplish far more than this. In covering all of the “activities” of any “religious corporation, association, educational institution, or society,” the exemption immunizes virtually every endeavor undertaken by a religious organization. If a religious sect should own and operate a trucking firm, a chain of motels, a race track, a telephone company, a railroad, a fried chicken franchise, or a professional football team, the enterprise could limit employment to members of the sect without infringing the Civil Rights Act. If owned and operated by a nonreligious organization, the enterprise could not use sectarian criteria in hiring, except where the particular job position carried a “bona fide occupational qualification” of a religious character.

In creating this gross distinction between the rules facing religious and non-religious entrepreneurs, Congress placed itself on collision course with the Establishment Clause. Laws in this country must have a secular purpose and a “primary effect” which neither advances nor inhibits religion. Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 773, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Walz v. Tax Commission, 397 U.S. 664, 669, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).

[I]t is now firmly established that a law may be one “respecting an establishment of religion” even though its consequence is not to promote a “state religion,” * * * and even though jt does not aid one religion more than another but merely benefits all religions alike. * * *

Nyquist, supra, 413 U.S. at 771.

A given law might not establish a state religion but nevertheless be one “respecting” that end in the sense of being a step that could lead to such establishment * * *.

Lemon v. Kurtzman, supra, 403 U.S. at 612 (emphasis in original). We cannot conceive what secular purpose is served by the unbounded exemption enacted in 1972. As for “primary effect,” the exemption invites religious groups, and them alone, to impress a test of faith on job categories, and indeed whole enterprises, having nothing to do with the exercise of religion.

It is true that most of the Establishment Clause cases recently before the Supreme Court have involved state subsidies or tax preferences for religious groups. But in drafting the Clause the Founders were taking equally keen aim at all non-financial “sponsorship” of religious organizations by government. Lemon v. Kurtzman, supra, 403 U.S. at 612; Walz v. Tax Commission, supra, 397 U.S. at 668. And sponsorship is what this exemption accomplishes. It is a sure formula for concentrating and vastly extending the worldly influence of those religious sects having the wealth and inclination to buy up pieces of the secular economy.

It was not, of course, constitutionally required that Congress prohibit religious discrimination in private sector employment. But this having been done, by the Civil Rights Act, the wholesale exemption for religious organizations alone can only be seen as a special preference. Compare Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). The First Amendment demands “neutrality” of treatment between religious and non-religious groups. Nyquist, supra, 413 U.S. at 792-793. As Mr. Justice Harlan once noted:

Neutrality in its application requires an equal protection mode of analysis. The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerry manders. * * *

Walz v. Tax Commission, supra, 397 U. S. at 696 (concurring opinion). «

Because the two religion guarantees often seem to tug in opposite directions, “neutrality” is a notoriously difficult concept.

A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion. * * The Court must not ignore the danger that an exemption from a general obligation of citizenship on religious grounds may run afoul of the Establishment Clause, but that danger cannot be allowed to prevent any exception no matter how vital it may be to the protection of values promoted by the right of free exercise. * * *

Wisconsin v. Yoder, 406 U.S. 205, 220-221, 92 S.Ct. 1526, 1536, 32 L.Ed.2d 15 (1972). See also Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). In this matter of exemptions the First Amendment strings a “tight rope” between the two religion guarantees, Walz v. Tax Commission, supra, 397 U.S. at 672, and we must see to it that Congress does not slip off.

From 1964 to 1972 Congress had, in our view, a firm purchase on the tightrope. The exemption then granted by the Civil Rights Act to the religious activities of religious organizations was itself required by the First Amendment. The Free Exercise Clause precludes governmental interference with ecclesiastical hierarchies, church administration, and appointment of clergy. See Presbyterian Church in United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969) ; Kreshik v. St. Nicholas Cathedral, 363 U.S. 190, 80 S.Ct. 1037, 4 L.Ed.2d 1140 (1960); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952) ; McClure v. Salvation Army, 5 Cir., 460 F.2d 553 (1972). In addition, the guarantees of Free Exercise, Free Speech, and Free Press no doubt combine to provide a religious group the right to choose on sectarian grounds those who will advocate, defend, or explain the group’s beliefs or way of life, either to its own members or to the world at large. See Tucker v. Texas, 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274 (1946); Follett v. McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944) ; Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Founding Church of Scientology v. United States, 133 U.S.App.D.C. 229, 409 F.2d 1146, cert. denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969); Anti-Defamation League of B’nai B’rith v. FCC, 131 U.S.App.D.C. 146, 403 F.2d 169 (1968), cert. denied, 394 U.S. 930, 89 S.Ct. 1190, 22 L.Ed.2d 459 (1969). Compare Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944) ; Mitchell v. Pilgrim Holiness Church Corp., 7 Cir., 210 F.2d 879, cert. denied, 347 U.S. 1013, 74 S.Ct. 867, 98 L.Ed. 1136 (1954).

But the 1972 exemption now shelters myriad “activities” which have not the slighest claim to protection under the Free Exercise, Free Speech, or Free Press guarantees. It is arguable that Congress may, without violating the Establishment Clause, expand a religious exemption somewhat beyond the minimal boundaries created by the several First Amendment liberties. See Walz v. Tax Commission, supra (property tax exemption for buildings and land used “exclusively for religious, educational or charitable purposes” and “not operating for profit”); Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952) (“released time” exemption from school attendance requirement for students wishing to take religious instruction). See also Sherbert v. Verner, supra, 374 U.S. at 422-423 (dissenting opinion of Mr. Justice Harlan). But these isolated decisions create no precedent for the unlimited 1972 exemption. In Zorach, supra, the Court carefully confined its ruling to the facts of the case. In Walz, supra, the Court stressed the peculiar historical role of property tax exemptions for places of worship, 397 U.S. at 676-678, noted that the tax exemption extended to the non-profit activities of many secular organizations so that the statutory classification was not strictly a “religious” one, id. at 673, and carefully refrained from stating or implying that the state could exempt church-owned property used for non-religious, commercial purposes. (The Court has yet to address this last question. See Diffenderfer v. Central Baptist Church, 404 U.S. 412, 92 S.Ct. 574, 30 L.Ed.2d 567 (1972); cf. Gibbons v. District of Columbia, 116 U.S. 404, 408, 6 S.Ct. 427, 29 L.Ed. 680 (1886).)

By contrast, no historical tradition supports the 1972 exemption, see Nyquist, supra, 413 U.S. at 791-792. That exemption obviously creates a classification of a strictly religious character, id. And the exemption’s benefits clearly extend to the non-religious, commercial enterprises of sectarian organizations. It is conceivable that there are “many areas in which the pervasive activities of the State justify some special provision for religion to prevent it from being submerged by an all-embracing secularism.” Sherbert v. Verner, supra, 374 U.S. at 422 (dissenting opinion of Mr. Justice Harlan). But it hardly follows that the state may favor religious groups when they themselves choose to be submerged, for profit or power, in the “all-embracing secularism” of the corporate economy.

In addition to being vulnerable on First Amendment grounds, the 1972 exemption appears unconstitutional on Fifth Amendment grounds as well. To the extent that the non-religious commercial enterprises of religious organizations directly compete with those of non-religious organizations, the 1972 exemption forces the Government to discriminate between business rivals in applying the Civil Rights Act’s constraints upon sectarian hiring. The criterion of discrimination — i.e. the religious or nonreligious character of the owning or operating group — not only lacks a rational connection with any permissible legislative purpose, but is also inherently suspect. Such invidious discrimination violates the equal protection of the laws guaranteed by the Due Process Clause. Compare Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1947).

II

The FCC’s own rules against sectarian hiring, promulgated under the Communications Act, exempt employment “connected with the espousal of the licensee’s religious views.” Petitioner finds in this formula insufficient compliance with the “national policy” established by the 1972 exemption to the Civil Rights Act. But it is very dangerous indeed to inflate a constitutionally doubtful statute into a “national policy” having force beyond the statute’s literal command. The customary, and more prudent, course is to construe statutes so as to avoid, rather than aggravate, constitutional difficulties. See United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). This course is open to us in the present case. Neither the express terms nor the legislative history of the 1972 exemption indicate that Congress intended the FCC to carve a like exemption into its own anti-bias rules. A definitive resolution of the constitutional issues raised by the 1972 exemption can therefore be deferred to a case where they are squarely raised.

While the key term in the 1972 exemption — “activities”—is concededly broad enough to cover broadcasting franchises operated by religious organizations, this means only that these sectarian franchises are immune from the ban on religiously discriminatory hiring contained in the Civil Rights Act. It does not necessarily follow that Congress intended to abrogate the FCC’s own anti-bias rules. Not only have these rules always been promulgated under the Communications Act, rather than the Civil Rights Act, but the rules have also, from their inception, gone beyond the commands contained in the Civil Rights Act. For instance, the FCC demands that its licensees take strong affirmative steps to hire members of minority groups; and the FCC’s rules apply to every broadcaster —even those too small to fall within the coverage of the civil rights statutes. The Commission’s extensive rules, and limited religious exemption, were in full force when Congress debated the 1972 exemption from the Civil Rights Act, but the legislative history makes absolutely no mention of them, of the FCC, or of the Communications Act. In this context we adhere to the

venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially when Congress has refused to alter the administrative construction. * * *

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969) (footnote omitted). This principle has particular application to the FCC, for the Commission’s mandate “to assure that broadcasters operate in the public interest is a broad one, a power ‘not niggardly but expansive,’ ” id. at 380. See also FCC v. RCA Communications, Inc., 346 U.S. 86, 90, 73 S.Ct. 998, 97 L.Ed. 1470 (1953); National Broadcasting Co. v. United States, 319 U.S. 190, 218-219, 63 S.Ct. 997, 87 L.Ed. 1344 (1943); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 137-138, 60 S.Ct. 437, 84 L.Ed. 656 (1940).

An agency should, of course, always examine new legislation to determine its relevance, if any, to the agency’s mandate. See McLean Trucking Co. v. United States, 321 U.S. 67, 80, 64 S.Ct. 370, 88 L.Ed. 544 (1944). Cf. City of Pittsburgh v. FPC, 99 U.S.App.D.C. 113, 237 F.2d 741 (1956); Mansfield Journal Co. v. FCC, 86 U.S.App.D.C. 102, 107, 180 F.2d 28, 33 (1950). But, having done this, the Commission was justified in finding the 1972 exemption irrelevant to its regulation of broadcast licensees under the Communications Act.

Congress’ obvious purpose in enacting the 1972 exemption was to constrain the power of the Equal Employment Opportunities Commission (EEOC) to regulate private religious entities. At the time the exemption was debated the civil rights statute to which it is expressly addressed applied only to private sector employers. The exemption’s sponsors were chiefly interested in the employment rights of wholly private educational institutions. Even in their most sweeping statements the sponsors spoke of immunizing only those activities which had traditionally been free of all government regulation:

Our amendment would strike out the word “religious” and remove religious institutions in all respects from subjugation to the EEOC.
* * * * •* *
In other words, this amendment is to take the political hands of Caesar off of the institutions of God, where they have no place to be.

As Congress is fully aware, broadcasting under the Communications Act is not an altogether private industry. Federally licensed broadcasters are “public trustees.” Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, 117, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973). For decades Congress has authorized and encouraged the FCC to regulate the broadcast industry in ways which the First Amendment would clearly foreclose in the case of wholly private organs of communication. Red Lion, supra,, 395 U.S. at 386-401. Unlike a religious newspaper, a sectarian radio or television station must, as King’s Garden readily concedes, adhere to the “fairness” and “personal attack” doctrines and produce some programs of general community interest. We have no evidence that Congress wished in 1972 to upset this well established doctrine that licensed broadcasters must meet FCC-imposed obligations inapplicable to the private sector generally. King’s Garden wishes us to assume that Congress now regards sectarian broadcasters as regulable “public trustees” so far as programming is concerned but as “institutions of God” untouchable by “the hands of Caesar” so far as employment practices are concerned. We would require a sentence or two of pertinent legislative history before crediting Congress with so bizarre a notion.

Ill

The question remains whether the FCC’s anti-bias rules violate King’s Garden’s rights under the First Amendment and the Communications Act. It is to protect these rights that the Commission exempts from the ban on sectarian hiring “the employment of persons whose work is * * * connected with the espousal of the licensee’s religious views.” This general policy is to be particularized on a case-by-case basis:

[As t]here are [job] categories * * * which may be defined differently by each licensee, we do not believe that it is advisable to issue a general declaratory ruling * * *. We have only general information and we are dealing with an area where First Amendment rights are often involved. We believe it would be preferable, therefore, to have specific factual settings presented to us before issuing rulings. * * *

The challenge here is to the facial adequacy of the exemption. Application of the general exemption policy to a particular job position may raise additional problems, but they are not presently before us.

King’s Garden argues that the FCC’s exemption is so narrow as to abridge the sect’s right of religious association, under the Free Exercise Clause, and its right, under the First Amendment generally, to broadcast religious views of its choice.

The premise of the first argument is that King’s Garden’s radio station is an integral part of the sect’s “missionary” structure. From this premise King’s Garden concludes that the Commission’s fair employment rules tamper unconstitutionally with the sect’s hierarchy, membership policy, and administration. The conclusion is based on the recognized doctrine, noted earlier, that the internal affairs of a church are immune from public regulation under the Free Exercise Clause. But the argument’s premise is defective. A religious sect has no constitutional right to convert a licensed communications franchise into a church. A religious group, like any other, may buy and operate a licensed radio or television station. See Noe v. FCC, 104 U.S.App.D.C. 221, 260 F.2d 739 (1958), cert. denied, 359 U.S. 924, 79 S.Ct. 607, 3 L.Ed.2d 627 (1959). But, like any other group, a religious sect takes its franchise “burdened by enforceable public obligations.” Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 337, 359 F.2d 994, 1003 (1966).

King’s Garden relies heavily on Wisconsin v. Yoder, swpra, which recognized that a public obligation of a seemingly neutral and secular character — i.e. the duty to send one’s children to a secondary school — may violate the religious associational rights of particular individuals by forcing them “to perform acts undeniably at odds with fundamental tenets of their religious beliefs” so that they must “either abandon belief and be assimilated into society at large, or be forced to migrate to some other and more tolerant region.” 406 U.S. at 218. The case is inapposite. Wisconsin’s school attendance law intruded upon the traditional way of life of, a religious sect by imposing an inescapable duty, backed by criminal penalties, on every parent of secondary school age children. By contrast, King’s Garden confronts the FCC’s rules only because the sect has sought out the temporary privilege of holding a broadcasting license. See Red Lion, supra, 395 U.S. at 386-401, and National Broadcasting Co., supra, 319 U.S. at 227. The FCC’s rules merely condition King’s Garden’s ability to extend its activities by use of “a limited and valuable part of the public domain.” United Church of Christ, supra, 123 U.S.App.D.C. at 337, 359 F.2d at 1003. There are, concededly, constitutional limits on the conditions which the FCC may impose. But the Constitution does not obligate the FCC to relinquish its regulatory mandate so that religious sects may merge their licensed franchises completely into their ecclesiastical structures.

King’s Garden’s second claim — that the FCC’s exemption is too narrow to guarantee the sect's right to broadcast religious views of its choice — proceeds on somewhat firmer ground. While the constitutional dimensions of a broadcaster’s speech and press rights have never been clearly delineated, the Supreme Court has recently emphasized that Congress, in enacting the Communications Act, intended licensees to have many of the liberties of private journalistic entities. Columbia Broadcasting System, supra, 412 U.S. at 109-111 and 124-125. Consequently, it may well be chat, after it has met its “fairness doctrine” and “personal attack doctrine” obligations and produced some programs of general community interest, King’s Garden has the right to give a sectarian tone or perspective to all of its other programming. This right would be infringed if the Commission, in applying its exemption, were to find no “espousal” of “religious views” in a type of programming which King’s Garden considered a significant expression of its sectarian viewpoint.

But this argument is premature. It requires us to speculate that the FCC will apply the terms “espousal” and “religious views” in a cramped and dogmatic fashion. The contrary speculation is equally plausible. In applying its exemption, the Commission may well pay close and sensitive attention to the sincerely held convictions of the sectarian licensees under examination. See Wisconsin v. Yoder, supra, 406 U.S. at 209-219, and Fowler v. Rhode Island, 345 U.S. 67, 69, 73 S.Ct. 526, 97 L.Ed. 828 (1953). To date the Commission has done nothing more than announce that its exemption will fix upon the nexus between the employment position in question and the religious content of the programs aired by the sectarian licensee. This is precisely the relevant nexus so far as the journalistic rights of the licensee are concerned. Where a job position has no substantial connection with program content, or where the connection is with a program having no religious dimension, enforcement of the Commission’s anti-bias rules will not compromise the licensee’s freedom of religious expression.

The Commission has set itself the difficult task of drawing lines between the secular and reglious aspects of the broadcasting operations of its sectarian licensees. Though this is a delicate undertaking, it is one which the First Amendment thrusts upon every public body which has dealings with religious organizations. See Nyquist, supra, 413 U.S. at 775; Tilton v. Richardson, 403 U.S. 672, 681, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971); Lemon v. Kurtzman, supra, 403 U.S. at 614. The courts have traditionally granted the FCC considerable leeway to work out the difficult First Amendment problems endemic to a system of licensed communications. Columbia Broadcasting System, supra, 412 U.S. at 102-103 and 132; Red Lion, supra, 395 U.S. at 386-401; National Broadcasting Co., supra, 319 U.S. at 227. As presently formulated, the Commission’s religious exemption is facially adequate. Problems of application there may be, but they will be questions for another day.

Affirmed.

BAZELON, Chief Judge,

concurring:

I disagree with my colleagues that the FCC can impose employment requirements in direct conflict with the standards established by Congress in Title VII. The Commission’s mandate to act in the “public interest” does not empower it to contravene an explicit Congressional policy. This is so, however, only if the policy in question is constitutional. I am convinced by the reasoning of part I of the court’s opinion that Title VII’s exemption of all “activities” of any “religious corporation, association, educational institution or society” violates the Establishment Clause of the First Amendment. Therefore, I would hold the exemption unconstitutional, and not binding on the FCC.

      . Tins controversy arose when a job applicant at one of King’s Garden’s stations complained to the FCC that he was asked questions such as “Are you a Christian?”, “Is your spouse a Christian?”, and the like. The Commission forwarded the complaint to King’s Garden, on Aug. 2, 1971 (Record at p. 2). King’s Garden responded by claiming the statutory and constitutional right to discriminate on religious grounds with respect to all positions of employment at its radio stations (Record at p. 15). The Commission ruled on May 3, 1972 that only “those persons hired to espouse a particular religious philosophy over the air should be exempt from the non-discrimination rules.” In Re Complaint by Anderson, 34 FCC2d 937, 938 (1972). This position was reaffirmed after enactment of the 1972 exemption to the Civil Rights Act mentioned in text. See In the Matter of King’s Garden, Inc., 38 FCC2d 339 (1972). The question in this case is whether the Commission’s qualified exemption facially conforms to relevant statutes and the Constitution. We do not deal with application of the exemption to any particular job position at King’s Garden. - It should be noted that King’s Garden has requested institution of rule-making proceedings on the Commission’s exemption policy. This issue is not before us.

      . The exemption is in § 3 of the Equal Employment Opportunities Act of 1972, Pub.L. 92-261, 86 Stat. 103, 42 U.S.C. § 2000e-l (Supp. II 1972), amending § 702 of Title VII of the Civil Rights Act of 1964, 78 Stat. 255, former 42 U.S.C. § 2000e-l. The 1972 exemption reads, in pertinent part:
      This subchapter shall not apply * * * to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
      The general ban on religious discrimination in employment is at 42 U.S.C. § 2000e-2 (1970).

      . Section 702 of the 1964 Civil Rights Act read, in pertinent part:
      This subeliapter shall not apply * * * to a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, or society of its religious activities 5ft * *

      . The regulations bar employment discrimination by broadcast licensees “because of race, color, religion, national origin or sex.” 47 C.F.R. §§ 73.125(a), 73.301(a), 73.599(a), 73.680(a), 73.793(a) (Oct. 1, 1973). The Communications Act of 1934, 48 Stat. 1064 et seq., 47 U.S.C. § 151 et seq. (1970), mandates the Commission to regulate broadcast licensees “as public convenience, interest, or necessity requires.” E.g., 47 U.S.C. §§ 303, 307, 309(a). The Commission traces its authority to promulgate fair employment rules to the “public interest” standard of its enabling act and to the related fact that broadcasters are “public trustees” with special obligations. See Non-Discrimination in Employment Practices: Notice of Proposed Rule Making, 13 FCC2d 766, 769-770 (1968), and Non-Discrimination in Employment Practices, 18 FCC2d 240, 241 (1969). The Communications Act does not itself expressly grant the FCC authority to regulate the employment practices of licensees, but the Commission has noted that employment practices have an obvious, if indirect, impact on programming — over which the FCC does have express authority. See Non-Discrimination in Employment Practices: Notice of Proposed Rule Making, supra, 13 FCC2d at 770. King’s Garden does not deny that the Commission has independent statutory authority to regulate the employment practices of licensees, and contends only that this authority cannot be exercised contrary to the Constitution or to the “national policy” established by the religious exemption in § 3 of the Equal Employment Opportunities Act of 1972. Brief for petitioner at 18. The Commission has stated that any change in its anti-bias rules should be accomplished through formal rule-making and should be adopted only “upon a public interest finding under the ’Communications Act” (Record at p. 83).

      . See In Re Complaint by Anderson, supra note 1, 34 FCC2d at 938, and In Re Request of National Religious Broadcasters, Inc., 43 FCC-2d 451 (1973).

      . Section 702 of the 1964 Civil Rights Act (Pub.L. 88-352, 78 Stat. 255, former 42 U. S.C. § 2000e-l) had exempted “educational institution [s] ” from all of the Act’s employment discrimination rules. Early versions of the- legislation which became the Equal Employment Opportunities Act of 1972 deleted this blanket exemption for educational institutions and proposed to add “religious educational institution [s]” to the list of religious organizations which § 702 had exempted as to religious discrimination in “religious activities.” See § 3 of S. 2515, 92nd Cong., 1st Sess., Sept. 14, 1971. Senator Allen objected that
      [u]nder the provisions of the bill, there would be nothing to prevent an atheist being forced upon a religious school to teach some subject other than theology.
      Legislative History of the Equal Opportunity Act of 1972 844 (Nov. 1972). To remedy this evil the Senators proposed striking the word “religious” from the term “religious activities” used in the provision exempting religious organizations from the ban on sectarian hiring practices. Amendment 809 to S. 2515, Legislative History, supra, at 789. The Senate adopted the Ervin-Alien amendment, id. at 1667, and the House also accepted it after a Joint Conference on the 1972 Act, id. at 1813-1814. This amendment broadened the exemption as to religious educational institutions — but also, of course, as to all other religious organizations listed in the exemption. In giving concrete examples of the workings of their amendment, however, both Senator Allen and Senator Ervin invariably adverted to its effect on religious educational institutions. Id. at 846, 848-852. The effect on other religious organizations went undiscussed, except for two very general comments by Senator Ervin :
      Our amendment would strike out the word “religious” and remove religious institutions in all respects from the subjugation to the EEOC.

        Id. at 848.
      In other words, this amendment is to take the political hands of Caesar off of the institutions of God, where they have no place to be.

        Id. at 1645.

      . See note 9 infra. ■ It might be argued, in an attempt to read the exemistion narrowly, that a commercial enterprise established by a religious sect is not an “activity” of the sect. This does not, however, seem a very fruitful line of argument. If a sect owns and operates an enterprise, on what ground could it be held to be other than an “activity” of the sect? Use of some technical ground — sucli as separate incorporation of the commercial enterprise — would not narrow the exemption in practice, for religious groups would simply avoid the technicality, e.g., avoid separate incorporation, in setting up their commercial enterprises. To effect a substantive narrowing of the exemption the courts would have to attempt to divide a sect’s various undertakings into “secular” and “religious” categories, but it is precisely this categorization which Congress repudiated in 1972.
      While it is not uncommon for courts to come very close to rewriting statutes so as to save their constitutionality, the 1972 exemption is a poor candidate for such a salvage operation. The scope of a religious exemption is an issue raising very delicate questions of public policy. While it is reasonably clear that the 1972 exemxrtion violates the Establishment Clause, it is far less clear exactly how much, or in what way, the exemption should be narrowed to avoid First Amendment objections. There may well be a considerable range of permissible alternatives. As a matter of institutional competence and constitutional authority, it is for the Congress, not the courts, to choose among these. See, in this regard, 26 U.S.C. §§ 501(c)(3), 502, 511, & 512 (1970), where Congress lias shown considerable ingenuity in constructing a very comxilicated exemption from tlie income tax laws for certain religious corporations.

      . 42 TJ.S.C. § 2000e-2 (e)(1). The “qualification” must be “reasonably necessary to tlie normal operation of that particular business or enterprise.”

      . Tlie wealth and inclination exist, apparently, in many American religious groups. See A. Balk, Tlie Religion Business 8-11 (1968) ; D. Robertson, Should Churches Be Taxed? 139-170 (1968) M. Larson & C. Lowell, Praise the Lord for Tax Exemption 193-246 (1969).

      . In Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), the Court also noted that a tax exemption for property used for religious purposes had the virtue of minimizing “entanglement” between churches and state authorities, id. at 674. But this rationale was obviously not intended to sanction every exemption from general laws granted to the “activities” of a religious organization. If it were, no “religious” exemption would ever raise an Establishment Clause issue; the Court has never adopted such a simpleminded rule. See Wisconsin v. Yoder, 406 U.S. 205, 220-221, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), and Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).

      . See note 5 supra.

      . On affirmative action, see 47 C.F.R. §§ 73.125(b), 73.301(b), 73.599(b), 73.680(b), & 73.793(b). These rules are patterned on those used by the Civil Service Commission in hiring federal employees. See Non-Disci'imination in Employment Practices, supra, note 4, 18 FCC2d at 243. Even stronger affirmative measures apparently may be required by the Commission in particular instances. Id. at 244.

      . The fair employment standards in the civil rights statutes apply only to employers with 15 or more employees. 42 U.S.C. § 2000e(b).

      . The statute now covers “governments, governmental agencies, [and] political subdivisions,” 42 U.S.C. § 2000e (Supp. II 1972), as well as private employers, but these public bodies were added by § 2(1) of the Equal Employment Opportunities Act of 1972, the same legislation which added the Allen-Ervin exemption for all of the “activities” of “religious” organizations. The legislative history of that exemption nowhere indicates that Congress gave any consideration to the possibility that a “religious” organization might also be a public or quasi-public body. The literal terms of the exemption do cover sectarian radio and television stations, but this is an undeliberated consequence of broad draftsmanship. It can hardly be invoked to show that Congress wished the FCC to desist from all regulation of the sectarian hiring practices of sectarian licenses.

      . See note 6 supra.

      . Id.

      . In Re Request of National Religious Broadcasters, Inc., supra note 5, 43 FCC2d at 452.

      . See Southern Steamship Co. v. Labor Board, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246 (1942).


source: Caselaw Access Project

author: MacKINNON, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America v. Sylvester KEARNEY, Jr., Appellant.
    No. 73-1288.
    United States Court of Appeals, District of Columbia Circuit.
    May 17, 1974.

      Tom M. Schaumberg, Washington, D. C. (appointed by this court), was on the brief for appellant.
    Harold H. Titus, Jr., U. ,S. Atty. at the time the brief was filed, John A. Terry and Warren L. Miller, Asst. U. S. Attys., were on the brief for appellee. Brian W. Shaughnessy, Asst. U. S. Atty., entered an appearance for appellee.
    Before WRIGHT and MacKINNON, Circuit Judges, and DAVIES, United States Senior District Judge for the District of North Dakota.

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

   MacKINNON, Circuit Judge:

The principal point raised by appellant relates to his conviction for first degree burglary while armed, D.C. Code §§ 22-1801 (a), 22-3202, for which he was sentenced to imprisonment for two to ten years. Even though he raised an alibi defense at trial, on this appeal he does not contest his convictions on three armed robbery counts, D. C.Code §§ 22-2901, 22-3202, for which he was also sentenced to imprisonment for two to ten years on each count. Since all of these sentences were adjudged to run concurrently the term of imprisonment to which appellant has been sentenced will not be reduced even if his appeal were upheld. His predicament may be further complicated by a subsequent indictment charging him with (1) armed robbery and (2) assault with intent to kill. These additional charges arose out of a crime committed in the District of Columbia while appellant was released on bond following his arrest on the instant charges (Tr. 236).

After thorough consideration of all points raised by appellant, we find them to be without merit, and affirm all the convictions, except those for assault with a dangerous weapon, which we routinely vacate as lesser included offenses where there has also been convictions of the greater offenses of armed robbery.

Appellant’s precise claim on this appeal is that the trial judge erred in denying the defendant’s motion for a directed verdict of acquittal with respect to the burglary count, and in failing to instruct the jury that to convict it must find that there was an unlawful entry against the will of the occupants as defined by D.C.Code § 22-3102. Otherwise stated, appellant contends that if the occupants of a dwelling give express permission for a person to enter that such permission constitutes a defense to the crime of first degree burglary as defined by statute of the District of Columbia.

I

Can the crime of burglary in the first degree be committed in the District of Columbia when the occupants consent to the entry?

The common law crime of burglary no longer exists in the District of Columbia. It has been replaced by a statutory crime, denominated first degree burglary, which is defined as follows:

Whoever shall, either in the nighttime or in the daytime, break and enter, or enter without breaking, any dwelling, or room used as a sleeping apartment in any building, with intent to break and carry away any part thereof, or any fixture, or other thing attached to or connected thereto or to commit any criminal offense, shall, if any person is in any part of such dwelling or sleeping apartment at the time of such breaking and entering, or entering without breaking, be guilty of burglary in the first degree. Burglary in the first degree shall be punished by imprisonment for not less than five years nor more than thirty years.

D.C.Code § 22-1801 (a) (1973) (81 Stat. 736-737). The operative words of this statute, so far as this case is concerned, provide:

Whoever shall . . . enter without breaking, any dwelling, or room used as a sleeping apartment . with intent ... to commit any criminal offense, shall ... be guilty of burglary in the first degree.

Thus, under the statute the essential requirement for the offense is that the accused “enter . . . with intent . to commit any criminal offense.” It is the intent and acts of the accused that the statute makes controlling. There is no language in the statute from which it can be concluded that the entry must be by force or that it must be against the will of the occupant. A plain reading of the unambiguous language of the statute thus indicates that the consent of the occupant to the entry is not a defense to the offense if the stated requirements of the Act are violated. Under statutes such as presently exist in the District of Columbia, which define burglary as an entry without breaking with intent to commit any criminal offense, it is uniformly held that consent to enter is not a defense where one is shown to have entered with the requisite criminal intent. We accordingly see no need to go beyond the plain interpretation of the statute to deny appellant's attack on his conviction.

However, to assure that the same points will not be raised again, we point out the erroneous logic in appellant’s contentions. Appellant’s theory is somewhat novel. He argues basically that, since the offense generally denominated as unlawful entry, D.C.Code § 22-3102, may be a lesser included offense of burglary, all the elements of the lesser offense (which included entry against the will of the occupant) must be proved to sustain a conviction for burglary — a greater offense. We disagree. While unlawful entry might be a lesser included offense of first degree burglary in some factual situations, such as where the accused did “break and enter” and was so charged, it is not necessarily a lesser included offense of every first degree burglary as defined by the District of Columbia statute, e. g., where the accused enters “without breaking.” Whether unlawful entry is a lesser included offense or not, with respect to any particular crime that is charged, will depend not solely upon a comparison of the statutory requirements for the respective crimes but also upon an analysis of the facts of the offense as charged in each indictment and as proved at trial. The result may vary depending upon the facts alleged in each indictment, because the statutory requirements allow for committing the crime by various methods. While many first degree burglaries, as charged and proved, might include the lesser included offense of unlawful entry, there is no requirement, statutory or otherwise, that they do so.

A plain reading of the first degree burglary statute prohibits, inter alia, an entry without breaking with intent to commit any criminal offense, and where such statutory elements are proved, the statute is violated. Neither the unlawful entry statute, nor the forcible entry statute, D.C.Code § 22-3101 (1973), engraft any additional elements on the first degree burglary statute, The unlawful entry statute does not purport to amend the burglary statutes and it does not do so by operation of law, either expressly or impliedly. Nor do the requirements of the unlawful entry statute constitute additional elements of every second degree burglary.

We have previously noted that in the District of Columbia “a burglary can in rare circumstances be accomplished by means of an entry which is ‘permitted,’ ” United States v. Whitaker, 144 U.S.App.D.C. 344, 349, 447 F.2d 314, 319 (1971), and we have similarly held that burglary can be based on an entry into a public place where the requisite intent is proved. United States v. Whitaker, supra, 144 U.S.App.D.C. at 346, 447 F.2d at 316; See James v. United States, 92 U.S.App.D.C. 275, 204 F.2d 733 (1953). In fact, the weight of authority in the United States holds that consent to enter is not a defense to the charge of burglary even under statutes which require an “unlawful entry,” since an entry made with the necessary criminal intent is unlawful or wrongful.

It is thus apparent that since the District of Columbia first degree burglary statute makes it an offense to enter an occupied dwelling with intent to commit a crime therein and that such offense can be committed without a violation of the unlawful entry statute, the entry need not necessarily be against the will of the occupants. The requisite intent is the principal element of the crime of burglary in this district,

II

The important question here is whether Kearney was proved to possess that criminal intent. To meet its burden on this issue the Government proved that the accused entered the premises armed and disguised as a woman and accompanied by another man who also carried a concealed firearm. They had both obtained consent to their entry into the premises under the pretext that they were looking for another person who was expected to arrive shortly. Nevertheless, shortly after their entry, as soon as some of the occupants started a poker game, played one hand, and some money appeared on the card table, the accused and his companion whipped out their guns, robbed the occupants and fled. On these facts — (1) the disguise and the guns in their possession, both of which indicated advance planning and necessarily preceded their entry, (2) the facts surrounding their entry which were consistent with a pretextual entry, and (3) the rapidity with which they proceeded to rob the occupants almost as soon as money appeared— there was ample evidence for the jury to find that when appellant entered the apartment he possessed the criminal intent required by the statute.

Even if an entry against the will of the occupants was required, the consent that was given to the entry of appellant would be vitiated by the misrepresentation which he indulged in to obtain that consent. In obtaining the consent to enter, the pretense was used that the two men were paying a social visit looking for a person who was expected to arrive shortly. Appellant also concealed his identity by being disguised as a woman and both participants in the crime concealed their guns. They thus obtained consent to enter, and the continued consent to remain, by the use of pretense, subterfuge, misrepresentation and concealment. The occupants were deceived into granting consent. An entry obtained in that manner is not with the will of the occupants. Even with common law larceny, consent is not a defense where the burglar exceeds the scope of the consent. Thus, even if the requirements of the unlawful entry statute were required to be met, they are completely satisfied here.

We thus affirm all the convictions for first degree burglary and armed robbery, and vacate the convictions for assault with a dangerous weapon as charged by counts five, eight and eleven.

Judgment accordingly.

      . See p. 63 infra.

      . As to the three additional convictions for assault with a dangerous weapon, D.C.Code § 22-502, we have held, subsequent to appellant’s trial, that such offenses, as here charged, are lesser included offenses, of the armed robbery offenses. United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297 (1973). Ve will accordingly order that the convictions on counts five, eight and eleven be vacated. Since concurrent sentences of one to three years’ imprisonment were imposed on each of such offenses, and such sentences were also adjudged to run concurrently with the burglary and armed robbery convictions, no remand for resentencing is considered necessary. United States v. Wimbush, 154 U.S.App.D.C. 236, 475 F.2d 347 (1973).

      . Id.

      . Appellant’s Br. at i, 9-17, 14.

      . Annot., 93 A.L.R.2d 548 (1964) and cases cited. See also note 9 infra.

      . D.C.Code § 22-3102 (1973) provides :
      Any person who, without lawful authority, shall enter, or attempt to enter, any public or private dwelling, building or other property, or part of such dwelling, building or other property, against the will of the lawful occupant or of the person lawfully in charge thereof, or being therein or thereon, without lawful authority to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $100 or imprisonment in the jail for not more than six months, or both, in the discretion of the court. (Mar. 3, 1901, 31 Stat. 1324, ch. 854, § 824; Mar. 4, 1935, 49 Stat. 37, ch. 23; July 17, 1952, 66 Stat. 766, ch. 941, § 1.)
      It is significant that a violation of this statute does not, in all circumstances, require an entry “against the will of the lawful occupant,” etc., since it also provides that a criminal offense may be committed if any person “being therein [a dwelling] or thereon, without lawful authority to remain therein or thereon” refuses to leave after demand by the lawful occupant.

      . D.C.Code § 22-1801 (b) (1973) defines second degree burglary ns follows:
      (b) Except as provided in subsection (a) of this section, whoever shall, either in the night or in the daytime, break and enter, or enter without breaking, any dwelling, bank, store, warehouse, shop, stable, or other building or any apartment or room, whether at the time occupied or not, or any steamboat, canalboat, vessel, or other watercraft, or railroad car or any yard where any lumber, coal, or other goods or chattels are deposited and kept for the purpose of trade, with intent to break and carry away any part thereof or any fixture or other thing attached to or connected with the same, or to commit any criminal offense, shall be guilty of burglary in the second degree. Burglary in the second degree shall be punished by imprisonment for not less than two years nor more than fifteen years. (Mar. 3, 1901, 31 Stat. 1323, eh. 854, § 823; Dec. 27, 1967, Pub.L. 90-226, § 602, title VI, 81 Stat. 736.)

      . Franklin v. United States, 293 A.2d 278 (D.C.Ct.App.1972), is to the same effect.

      . McCreary v. State, 25 Ariz. 1, 212 P. 336 (1923) ; Walders v. State, 101 Ark. 345, 142 S.W. 511 (1912) ; Pinson v. State, 91 Ark. 434, 121 S.W. 751 (1909) ; People v. Deptula, 58 Cal.2d 225, 23 Cal.Rptr. 366, 373 P.2d 430 (1962) ; People v. Schneller, 69 Ill.App.2d 50, 216 N.E.2d 510 (1966) ; State v. Baker, 183 Neb. 499, 161 N.W.2d S64 (1968) ; State v. Vassalluzo, 113 N.J.Super. 140, 273 A.2d 79 (1971) ; Commonwealth v. Shultz, 168 Pa.Super. 435, 79 A.2d 109, cert. denied, 342 U.S. 842, 72 S.Ct. 71, 96 L.Ed. 636 (1951). Contra, Smith v. State, 362 P.2d 1071 (Alaska 1961). See Annot., 93 A.L.R.2d 552-554 (1964).

      . In fact, in those states that require a “breaking” for burglary, when entry is effected under tire pretense of having business with the occupant or of paying a social visit, the defendant is deemed to have committed a breaking. 2 Wharton, Criminal Law § 415 (12th ed. 1957).

      . Id. § 414.

      . See note 2 supra.


author: WILKEY, Circuit Judge:

text:
    SOUTHERN AIRWAYS, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Delta Air Lines, Inc., et al., Intervenors. DELTA AIR LINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Southern Airways, Inc., Intervenor.
    Nos. 73-1375, 73-1389.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 8, 1974.
    Decided May 24, 1974.

      John Law Elliott, Washington, D. C., with whom Cecil A. Beasley, Jr., and John C. Smuck, Washington, D. C., were on the brief, for petitioner in No. 73-1375 and intervenor Southern Airways, Inc. in No. 73-1389.
    Robert Reed Gray, Washington, D. C., with whom James W. Callison, Atlanta, Ga., and Louis Hayner Kurrelmeyer, Washington, D. C., were on the brief for petitioner in No. 73-1389 and intervenor Delta Air Lines, Inc. in No. 73-1375.
    Robert L. Toomey, Atty. C. A. B., with whom Richard Littell, Gen. Counsel, O. D. Ozment, Deputy Gen. Counsel, Joan Marie Frankel, Atty., C. A. B., and Howard E. Shapiro, Atty., Dept, of Justice, were on the brief for respondent. R. Tenney Johnson, Gen. Counsel, C. A. B. , and Warren L. Sharfman, Associate Gen. Counsel, Litigation and Research, C. A. B., at the time the record was filed, also entered appearances for respondent.
    Theodore I. Seamon and Joseph D. Sullivan, Washington, D. C., were on the brief for intervenors, City of Memphis and Memphis Area Chamber of Commerce. Lawrence D. Wasko, Washington, D. C., also entered an appearance for Memphis intervenors.
    Aaron A. Wilson and Nordahl E. Holte, Kansas City, Mo., were on the brief for intervenor, City of Kansas City, Mo.
    Before HASTIE United States Senior Circuit Judge for the Third Circuit, and WRIGHT and WILKEY, Circuit Judges.

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

   WILKEY, Circuit Judge:

Petitioner Southern Airways, Inc. (Southern) challenges Civil Aeronautics Board Order No. 73-2-90, entered 23 February 1973. The comparative hearings underlying the Order were conducted pursuant to this court’s decision in Delta Airlines, Inc. v. CAB, which vacated and remanded a 1969 Board order extending Southern’s route authority between Memphis and Florida and denying Delta authority to operate nonstop between Memphis and Miami. In its 1973 Order, the Board granted Southern an extension of its existing Memphis-Tallahassee route to Orlando and Miami and permissive authority to provide nonstop service between Memphis and Orlando/Miami.

Other aspects of the Board’s Order prompted Southern’s petition for review: (1) the grant to Delta of mandatory authority to provide nonstop service between Memphis and Orlando/Miami; (2) the restriction of Southern to two-stop service between St. Louis/Chicago and Orlando/Miami; and (3) the imposition of a $12,000 license fee on Souths ern. We find the Board’s Order reasonable, supported by substantial evidence in the administrative record; we affirm. Given our disposition, we need express no opinion on Delta’s contingent petition for review.

I. GRANT OF NONSTOP AUTHORITY TO DELTA

In deciding to grant nonstop Memphis-Orlando/Miami authority to Delta, the Board first determined that there was need for nonstop service along that route. The Board then selected Delta to provide the needed service on the following rationale:

Our choice of Delta ... is grounded on two primary considerations. First, Delta has been the dominant carrier in the market for many years and, in 1971, participated in more than 70 percent of the traffic. By contrast, Southern’s market share in that year was about 8 percent. Second, Delta’s service proposal is markedly superior .to Southern’s. The trunk carrier would provide twice as many nonstop frequencies — four daily round trips compared to two— better-timed schedules, and a broader range of services.
* * * -X X X
In addition to its service advantage in the primary market, Delta would bring important beyond benefits to Kansas City-Miami passengers by adding four daily one-stop round trips to the market’s service pattern ,

Southern does not argue that the expressed criteria for decision are inappropriate. Nor could it so argue, since the criteria clearly relate to the general “public convenience and necessity” standard for the Board’s consideration of applications for authority, prescribed in section 401(d)(1) of the Federal Aviation Act. Moreover, the Board’s use of similar criteria was approved by this court in Continental Air Lines, Inc. v. CAB.

What Southern does argue is that the Board may not, as it allegedly did in this case, “employ without adequate explanation decisional criteria substantially different from prior criteria used by the Board in this proceeding.” To illustrate the “different” criteria employed by the Board in the earlier proceeding, Southern cites the following language from the Board’s 1969 order on reconsideration:

Nor did we overlook the possibility of both extending Southern into Florida and at the same time improving Delta’s authority in certain of the principal markets. This course of action would produce some public service benefits, particularly in the Memphis-Miami market, but it would do so only at the cost of diverting traffic which Southern could otherwise carry, lessening the degree to which the carrier will be strengthened, jeopardizing the small subsidy need reduction we anticipate it will earn at the outset, and impairing its future ability to schedule improved service from its exclusive points to the Florida hubs. • • [W]e concluded that Southern’s advantages in a broader group of markets outweighed Delta’s in a few, and that the overall benefits resulting from the selection of Southern alone require a departure in this instance from our general policy of giving preference to a carrier seeking improved authority in markets in which it has an existing stake.

Southern’s argument misses the mark. For, basically, it appears that the Board did apply the same criteria in both the earlier proceeding and the one in controversy here. In the present Order challenged, the Board analyzed the impact of granting Delta nonstop Memphis-Orlando/Miami authority on Southern’s growth and financial stability and concluded: “. . . Southern’s Memphis/Alabama-Florida flights will be highly profitable and achieve a return on investment well above the carrier’s system experience, regardless of whether Delta is named the MemphisMiam'i nonstop carrier; and, second, a Memphis-Miami nonstop award would not substantially strengthen Southern, at least in the near future.” The criteria reflected in this statement are essentially the same as those applied in the Board’s earlier order.

The difference in the conclusions reached in each case may be accounted for in part by the fact that the data underlying the two orders were different. The 1969 order was based on cost, revenue, and traffic data through March 1969 and on projections for 1969 (in the case of Delta and the other carriers) and 1970 (in the case of Southern). The 1973 Order rests on data through the second quarter of 1970 and projections for 1972. Furthermore, the Board recognized in its earlier order that it was departing from the “general policy of giving preference to a carrier seeking improved authority in markets in which it has an existing stake,” and conceded that granting Delta nonstop Memphis-Miami authority “would produce some public service benefits.” These are the considerations that weighed most heavily in the Board’s 1973 decision to grant Delta such authority.

That the Board gave these considerations greater weight in the 1973 Order than in the 1969 proceeding reflects the fact that, when this court remanded the 1969 order to the Board, it expressly instructed the Board to reevaluate its balancing of public service benefits against the goal of improving Southern’s financial stability:

[W]hen it came to the granting of authority involving the lucrative nonstop routes servicing Memphis/Birmingham-Miami and Atlanta-Nashville, the praiseworthy aims of getting Southern off subsidy and providing better service to the smaller cities had to be evaluated as to chances of success in accordance with due process standards, and had to be balanced against other competing public and private interests, namely, the public interest of the needs of prospective passengers in the larger cities and the comparative capacities of the competing airline applicants to service these routes.

Our remand would have been futile if the court had not expected that the Board might strike a different balance, as it has done in its 1973 Order.

Aside from its allegation of different decisional criteria, the second ground for Southern’s attack on the grant of nonstop Memphis-Miami authority to Delta is that the Board considered the “beyond area” benefits granting such authority would confer on passengers along the Kansas City-Miami route, without evaluating the need for improved service on that route. The “beyond area benefit” in this case arises from Delta’s ability to “tack” its new Memphis-Orlando/Miami service to its existing Kansas City-Memphis service and thus increase the number of single-plane, one-stop flights between Kansas City and Orlando/Miami. Applying such beyond area analysis, without going into the needs of the other area, as a factor in determining which of two carriers should be granted authority along a given route has been sanctioned by this court. The unwieldiness of converting every proceeding in which beyond area benefits are involved into an inquiry into the service needs of an entire area was further recognized in a 1973 opinion of this court, Delta Air Lines, Inc. v. CAB. Thus Southern’s argument has already been rejected.

It is clear from the foregoing that the Board’s grant of nonstop Memphis-Orlando/Miami authority to Delta was reasonable and supported by substantial evidence. On established administrative law principles we must affirm.

II. THE TWO-STOP RESTRICTION

In the challenged Order, the Board removed an existing two-stop restriction on Southern flights between St. Louis/Chicago and Tallahassee and replaced it with a two-stop requirement along the St. Louis/Chicago-Orlando/Miami route. Had this change not been made, Southern would have been authorized to offer at best three-stop service between St. Louis/Chicago and Orlando/Miami. Nevertheless, Southern protests that the Board should have allowed Southern to tack its existing St. Louis/Chieago-Memphis service to its newly-granted Memphis-Orlando/Miami permissive nonstop authority, and thus to create a new St. Louis/Chicago-Orlando/Miami one-stop route. We think the Board’s imposition of the two-stop restriction was reasonable and supported by substantial evidence.

The Board proffered the following justification for the two-stop limitation: “This restriction was designed to assure that Southern will concentrate on providing local services between Memphis and its existing Alabama and Florida points, on the one hand, and Miami and Orlando, on the other . . . . ” This reasoning has two basic components: (1) if granted the tacking authority, Southern might be tempted to enter the St. Louis/Chicago-Orlando/Miami one-stop market; and (2) if it did so, Southern’s ability to provide local service between Memphis and Orlando/Miami would be impaired.

Both of these propositions are supported by substantial record evidence. The administrative law judge made the undisputed finding that 740,170 passengers traveled through the air along the St. Louis/Chicago-Orlando/Miami route in 1969. This heavy concentration of traffic would have the potential of luring Southern into the St. Louis/Chicago-Orlando/Miami one-stop market, were the restrictions imposed by the Board not in existence. The danger that Southern’s entry into this market would create is also apparent in the Board record. The administrative law judge further found, without contradiction, that “the Chicago/St. Louis-Orlando/Miami markets . . . are high-density long-haul markets which receive multiple nonstop and one-stop services from trunk-line carriers.” It follows that any attempt by Southern to exploit these markets would encounter substantial, well-entrenched competition and might therefore result in financial losses that could impair Southern’s ability to provide adequate local service in the Memphis/Alabama-Florida market. Thus, notwithstanding the Board’s general policy of not attaching certificate restrictions, the Board was justified in concluding that the public interest would be served by preventing Southern from straying into the one-stop St. Louis/Chicago-Orlando/Miami market at the expense of its basic local service obligations.

Southern’s secondary line of attack on the two-stop restriction is that the imposition of such a restriction on Southern cannot be reconciled with the failure similarly to limit Delta’s St. Louis-Miami authority. We disagree. The Board concluded that “ [n] either Eastern nor TWA — the Miami-St. Louis incumbents who favor the imposition of a two-stop restriction on Delta’s flights in the market — has shown that a clear need for this restriction exists.” The Board continued:

On the other hand, we see no need to eliminate or amend the two-stop restriction we imposed on Southern’s flights between Chicago or St. Louis and Miami or Orlando. This restriction was designed to assure that Southern will concentrate on providing local services between Memphis and its existing Alabama and Florida points, on the one hand, and Miami and Orlando, on the other; it was not imposed to protect the incumbents in the Chicago/St. Louis-Florida markets. Therefore, its retention is in no way-inconsistent with our decision not to impose a two-stop condition on Delta’s Miami-St. Louis authority, as Southern suggests.

While it is clear that the imposition of a two-stop restriction on Southern was grounded on criteria different from those employed in determining whether Delta should be similarly restricted, this disparity is justified by the differing natures of the two carriers. Delta is a long-haul trunk carrier that operates on a non-subsidized basis. In contrast, Southern is basically a short-haul local carrier, whose operations are sustained in part by government subsidies. The Board has some responsibility for safeguarding the financial integrity of a carrier like Southern, whose business failures ultimately burden the public treasury, while the managements of Delta and other non-subsidized carriers can justifiably be allowed greater license in assessing business opportunities and risks, since their mistakes in judgment merely diminish the dividends of their shareholders. Moreover, the Board may reasonably seek to prevent Southern from straying from its basic local markets into long-haul routes, while long-haul service is the principal component of Delta’s operations. Therefore, the Board acted reasonably in imposing a two-stop restriction on Southern’s St. Louis/Chieago-Orlando./Miami service and not on Delta’s.

III. THE LICENSE FEE ISSUE

As a fee for extending Southern’s certificate authority, the Board assessed Southern $12,000. This assessment was made pursuant to section 389.-25 of the Board regulations, which provides that a license fee shall be paid “by each carrier which, pursuant to its application, is issued a certificate or has its certificate amended, modified, renewed, or transferred . . . . ” In a letter to the Board’s managing director dated 21 May 1973, Southern protested that it had already paid the maximum license fee provided by the regulations, $25,000, in connection with the 1969 proceedings. Since the Board’s 1973 Order granted Southern essentially the same authority as that awarded in 1969, Southern argued, it would violate the Board’s regulations to impose an additional fee. In a letter dated 20 June 1973 the Board informed Southern that its motion for waiver or modification of the license fee had been rejected by an equally divided Board. The letter explained the rejection of Southern’s motion with the following statement:

The Board is unable to accept Southern's interpretation of the license fee regulations. To begin with, the regulations provide for imposition of a fee each time a carrier’s certificate is “modified” or “amended” and it is clear that Order 73-2-90 amended Southern’s certificate. Thus, the imposition of the license fee falls within the literal terms of the Board’s regulations. Moreover, since the essential purpose of the license fee regulations is to enable the Government to recover a portion of its expenses, imposition of the license fee following a wholly new evidentiary proceeding would be consistent with that basic purpose.

Since the Board’s interpretation of its license fee regulation appears to us not unreasonable, we must defer to that interpretation and not upset the license fee assessment against Southern.

IV. CONCLUSION

The Orders under review are reasonable and supported by substantial evidence ; they are therefore

Affirmed.

      . Southern Airways, Inc., Route Realignment Investigation (New Route Authority Phase), Docket 18610, Order 73-2-90 [hereinafter Board Order], Joint App. at 18. The Board’s Order affirmed the initial decision of the administrative law judge (then hearing examiner), dated 28 February 1972 and reproduced in the Joint Appendix at 182 [hereinafter Initial Decision]. Petitions for reconsideration were denied on 23 April 1973 by Order 73-4-92 [hereinafter Order on Reconsideration] , Joint App. at 1.

        . 143 TJ.S.App.D.C. 8, 442 F.2d 730 (1970).

      . Southern Airways, Inc., Route Realignment Investigation, Order 69-9-132 (25 Sept. 1969), Joint App. at 113; Supplemental Opinion and Order on Reconsideration, Order 69-11-94 (21 Nov. 1969), Joint App. at 84.

      . The court’s jurisdiction to review Board orders and the applicable standard of review are set out in the Federal Aviation Act § 1006, 49 U.S.C. § 1486 (1970).

      . Delta’s petition was contingent on a remand by the court to the Board for reconsideration of the order granting nonstop Memphis-Orlando/Miami authority to Delta, in which case Delta urged that the court order the Board to reconsider its grant of Memphis-Orlando/Miami authority to Southern.
      The Board’s Order contained further provisions granting Southern nonstop AtlantaNasliville authority and denying Delta any new authority in that market. No challenge has been raised to these provisions in this suit.

      . Board Order, supra note 1, at 2-3, Joint App. at 20-21.

      . Id. at 4, Joint App. at 22.

      . 49 U.S.C. § 1371(d) (1) (1970) :
      The Board shall issue a certificate authorizing the whole or any part of the transportation covered hy the application, if it finds that the applicant is fit, willing, and able to perform such transportation properly, and to conform to the provisions of this chapter and the rules,- regulations, and requirements of the Board hereunder, and that such transportation is required by the public convenience and necessity; otherwise such application shall be denied.

      . 143 U.S.App.D.C. 330, 339-340, 443 F.2d 745, 754-755 (1971).

      . Brief for Petitioner Southern Airways, Inc. at 32.

      . Order 69-11-94, supra note 3, at 14, Joint App. at 96.

      . Board Order, supra note 1, at 5, Joint App. at 23.

      . One of the grounds for this court’s remand of the 1969 order was that the projections of' Southern’s 1970 traffic, costs, and revenue, on which the Board relied in reaching its decision, were of “questionable reliability.” Delta Airlines, Inc. v. CAB, 143 U.S.App.D.C. 8, 12-14, 442 F.2d 730, 734-736 (1970).

      . Id. at 10, 442 F.2d at 732.

      . See Texas International Airlines, Inc. v. CAB, 144 U.S.App.D.C. 94, 104, 444 F.2d 969, 979 (1971).

      . 162 U.S.App.D.C. -, at ---, 497 F.2d 608, at 612-614.

      . Board Order, supra note 1, at 22, Joint App. at 40.

      . Order on Reconsideration, supra note 1, at 5-6, Joint App. at 5-6.

      . Initial Decision, supra note 1, at 61, Joint App. at 230.

      . Ibid.

      . The Board applied this policy here when it declined to attach restrictions to Southern’s Memphis-Miami/Orlando authority, thus permitting Southern to provide nonstop service along that route if it desires. The Board’s willingness to grant this permissive authority may be reconciled with its decision to impose restrictions on Southern’s St. Louis/Chicago-Orlando/Miami service. First, as an affirmative justification for its grant of permissive nonstop authority between Memphis and Orlando/Miami, the Board offered the following: “ [Permitting Southern to have nonstop authority will serve the public interest by enabling the carrier to enter the market if any serious deficiencies develop in Delta’s services; Southern will thus exercise a kind of latent competitive stimulus to Delta’s operations.” Board Order, supra note 1, at 6, Joint App. at 24. This “competitive stimulus” rationale makes sense when applied to the Memphis-Orlando/Miami nonstop market, which is served on a mandatory basis only by Delta. (Eastern has permissive authority but has not exercised it since 1969.) However, the rationale is patently inapplicable to the St. Louis/Chicago-Orlando/Miami single-plane market, which is served by numerous carriers and could apparently sustain the loss of one or more competitors. See text accompanying notes 19-20 supra. Thus, the chance that a carrier like Southern might some day be needed as a stopgap in that market seems slight, and Southern’s influence on the market as a “competitive stimulus” would be minimal. Moreover, Southern could not provide one-stop St. Louis/Chicago-Orlando/Miami service without offering a Memphis-Orlando/Miami nonstop schedule. It follows that the danger inherent in providing the St. Louis/Chieago service includes as a lesser component the risk created by supplying Memphis-Florida nonstop service.

      . Order on Reconsideration, supra note 1, at 5, Joint App. at 5.

      . Id. at 5-6, Joint App. at 5-6.

      . This fee is based on the Board’s estimate that Southern’s new certificate authority would increase its gross transport revenue during the first year by 5-10 million dollars. Board Order, supra note 1, at 22, Joint App. at 40. The Board regulations on license fees provide for a $12,000 fee for certificate amendments producing gross revenue increases of this magnitude. 49 C.F.R. § 389.25(a) (2) (i) (1973).

      . 49 C.F.R. § 389.25(a) (2) (1973).

      . Joint App. at 280-83.

      . Id. at 176.

      . Id. at 176-77.

      . Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945) ; Southwestern Petroleum Corp. v. Udall, 117 U.S.App.D.C. 60, 62, 325 F.2d 633, 635 (1963).