author: LEVENTHAL, Circuit Judge:

text:
    UNITED STATES of America, Appellant, v. Richard Lee BAST and Redex Corporation.
    No. 72-2132.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 6, 1973.
    Decided Jan. 25, 1974.
    Rehearing Denied Feb. 22, 1974.

      James R. Robinson, Lansing, Mich., of the bar of the Supreme Court of Michigan, pro hac vice, by special leave of Court, with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellant.
    Gregory C. Brady, John E. Drury, III, and Guy H. Cunningham, III, Asst. U. S. Attys., also entered appearances for appellant.
    Philip J. Hirschkop, Alexandria, Va., for appellees.
    Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.
   LEVENTHAL, Circuit Judge:

Defendants Bast and Redex Corporation were indicted for, inter alia, possessing, distributing and advertising devices for the interception of wire and oral communications, in violation of a provision of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2512 (1970). Electronic recording and listening devices, as well as advertising and records of distribution and sale, were seized at the corporate offices of the defendant Redex Corporation pursuant to a search warrant, issued on an affidavit alleging violations of § 2512. The defendants filed a pre-trial motion to suppress the evidence seized under the warrant. The District Court granted the motion on the ground that the allegations of the affidavit were insufficient as a matter of law to establish a violation of § 2512. The Government took an appeal which presents the issue whether the facts alleged in the affidavit suffice to show probable cause to believe that defendants had violated § 2512. We vacate and remand.

I. STATEMENT OF FACTS

Defendant Redex Corporation, owned principally by defendant Bast, is a distributor of electronic recording and listening equipment. The affidavit in support of a search warrant for the premises of Redex alleged that one Fitzgerald had obtained from Redex a brochure advertising for sale a miniature tape recorder. According to the brochure, the recorder “secretly tapes a conversation, interview, conference or lecture IN YOUR SHIRT POCKET.” Another section of the brochure stated:

EXTREMELY SENSITIVE PICK XJP — TO 75 FEET
Whether it’s a face-to-face conversation, an around-the-table conference with a sizeable group, or a lecture in a large hall or a secret intelligence investigation — BINAURAL compensates automatically for each situation . . . You are free to concentrate on the proceedings while everything spoken is taped.

In addition to the information contained in the brochure, the affidavit contained allegations of information supplied by informants as to electronic devices sold, purchased, or possessed by Redex Corporation and Bast. The warrant which issued authorized search of the premises of Redex Corporation and seizure of “advertisement of items to be used primarily as surreptitious listening devices and listening devices of a surreptitious nature, records of sale, manufacture, distribution, possession thereof which are in violation of 18 U.S. C. § 2512.” Seizure was apparently predicated on 18 U.S.C. § 2513.

Execution of the warrant resulted in the seizure of electronic devices and business records from the offices of Redex Corporation. The defendants’ pre-trial motion to suppress these items as evidence was based on the ground, inter alia, that the averments of the affidavit did not establish a violation of § 2512.

The District Court ruled that all information in the affidavit except that relating to the brochure would not support a finding of probable cause, the information being either not indicative of guilt or too remote in time from the application for the warrant. United States v. Bast, 348 F.Supp. 1202, 1203 (D.D.C.1972). Thus, as the District Court viewed it, a finding of probable cause had to rest on the brochure alone. The court concluded that the brochure did not establish a violation of § 2512 and accordingly probable cause for the search was lacking.

II. DISTRICT COURT’S CONSTRUCTION OF § 2512

Section 2512(1) (c) (ii) makes it a crime willfully .to

[place] in any newspaper, magazine, handbill, or other publication any advertisement of any . . . electronic, mechanical, or other device, where such advertisement promotes the use of such device for the purpose of the surreptitious interception of wire or oral communications. . . .

The District Court’s ruling turns on its construction of the phrase “surreptitious interception.”

The Government urged that the phrase includes any secret recording of communications, and that a prima facie violation of this provision is established by the phrases in Redex’s brochure which adverted to clandestine use of the recorder — “secretly tapes ... in your shirt pocket” (emphasis added).

The District Court, however, construed the term more narrowly. It noted that § 2511 modifies the general prohibition on willful interception of wire and oral communications with exceptions, particularly the “consent” exception, § 2511(2)(d), providing that

It shall not be unlawful under this chapter for a person ... to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act.

The District Court held that the advertising prohibition of § 2512 should not be read to prohibit the promotion of uses apparently lawful in light of the “consent exception” of § 2511(2) (d). In effect, the District Court construed the phrase “surreptitious interception” of § 2512 to mean “an interception prohibited by § 2511.” Applying its construction of the statute, the District Court found that the brochure prepared by Redex Corporation did not promote use of the recorder for the purpose of surreptitious interception:

The recorder in this case is advertised as one designed to be used primarily by a party to the taped conversation and therefore falls outside the designation “surreptitious.”

348 F.Supp. at 1204.

III. DISPOSITION

A. Issue of Probable Cause Even on the narrow construction of the statute which the trial court adopted, it was erroneous to conclude that the brochure did not establish probable cause. We revert to the portion of the brochure that is captioned: “EXTREMELY SENSITIVE PICK UP — TO 75 FEET.” Here the brochure’s text states that a product with such sensitive pick-up is useful, not only for recording of face-to-face conversation, an around-the-table conference, or a lecture in a large hall, but also for a ““secret intelligence investigation.”

While the tendency and character of the brochure involve factual matters that would ultimately have to be determined at trial, the brochure provided “probable cause” to believe that sending it was a violation of the statute. There was at least a reasonable possibility that a trier of fact would conclude that defendant had willfully placed this advertisement in order to promote use of the recorder to tape conversations under circumstances in which the recorder is concealed and the participants are unaware of the interception — a use not permitted by the consent exception of § 2511. Therefore there was “probable cause” to believe the brochure “promotes the use of such [electronic] device for the purpose of the surreptitious interception,” in violation of the advertising prohibition of § 2512, even on the trial court’s construction of the prohibition as limited to promotion of nonconsensual interception.

It may be that this phrase in the brochure is susceptible of a convincing alternative interpretation which would not violate the advertisement proscription, but that is a matter for trial. All we say here is that the magistrate could reasonably have issued the warrant even assuming, for the time being, the correctness of the interpretation adopted by the District Court. The affiant seeking a warrant and the issuing magistrate have some latitude in their interpretation of evidence before them, and evidence may support a warrant even though later held insufficient to support conviction.

B. Construction of Section 2512

Even assuming the accuracy of the District Court’s construction of the statute, it erred. We think it is not in the interest of sound judicial administration to limit our reversal to identification of that error, however, for we also believe that its construction is too narrow. We say this even though we must say at the same time that we do not think it appropriate to define the precise contours of the prohibition of § 2512 in the absence of a more complete record. 1. The District Court’s reading of the § 2511 exceptions into the prohibition of § 2512 lacks support in the language of the statute.

The prohibition of § 2512(1) (b) applies to anyone who willfully manufactures, possesses, or distributes a “device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire or oral communications. . . .” Section 2512(1) (c) (i) prohibits the willful advertisement of the kind of device identified by § 2512(1)(b). The prohibition of § 2512(1) (c)(ii), however, goes further and applies to anyone who willfully places an advertisement of any device, not merely the devices condemned in (b) on the basis of their primary usefulness, “where such advertisement promotes the use of such device for the purpose of the surreptitious interception of wire or oral communications.”

The words “surreptitious interception” connotes, in plain and ordinary usage, “secret listening.” The mere fact that a device may be used for interceptions that do not violate § 2511 does not mean that its manufacture and advertising are compatible with § 2512. Section 2512(1) (b) prohibits the manufacture, sale and possession of devices primarily useful for the purpose of secret interception, even though the devices may be used for other and lawful interceptions. The intent of Congress is discernible and sensible, and there is no reason to consider the doctrines that indicate that when plain meaning leads to an absurd result it does not signify applicable legislative intent. Similarly, there is no anomaly in Congress’s apparent attempt, in the advertising prohibition of § 2512(1) (c) (ii), to reach promotion of a device for secret interception, even though the manufacture or possession of the device is not banned by § 2512 (l)(b) as one “primarily” useful for secret interception. It may be unusual but it is not unprecedented for Congress to prohibit the advertising of a product even though it has not prohibited the product or its use per se. An example that looms large currently is the prohibition of advertising of cigarettes on radio or television.

The legislative history supports the interpretation of § 2512 without limitation by the exceptions contained in § 2511. The Senate Report on the bill that originated the language that emerged in § 2512 clearly makes the point that under this language the manufacture of a device may be illegal, because it is primarily useful for surreptitious interception, even though the device “may have innocent uses.” It is instructive to quote an excerpt:

The provisions of section 2512 banning the manufacture, distribution, sale, possession, and advertising of wiretapping and eavesdropping devices will significantly curtail the supply of a variety of devices. There is no intent to preempt State law. The prohibitions are applicable to devices whose design renders them primarily useful for the surreptitious interception of private wire or oral communications. The statutory phrase is intended to establish a relatively narrow category of devices whose principal use is likely to be for wiretapping or eavesdropping. A device will not escape the prohibition merely because it may have innocent uses. The crucial test is whether the design of the device renders it primarily useful for surreptitious listening. Obviously, the sort of judgment called for here in close cases would warrant the use of expert testimony.
See United States v. One Device, 160 F. 194 (10th 1947). The prohibition will thus be applicable to, among others, such objectionable devices as the martini olive transmitter, the spike mike, the infinity transmitter, and the microphone disguised as a wristwatch, picture frame, cuff link, tie clip, fountain pen, stapler, or cigarette pack. Such devices are widely advertised and distributed at the present time and are readily available on the market. By banning these devices, a significant source of equipment highly useful for illegal electronic surveillance will be eliminated.

S.Rep.No.90-1097, 90th Cong., 2d Sess. 95 U.S.Code Cong. & Admin.News, 1968, pp. 2112, 2183 (1968). Thus the manufacture, sale and possession prohibition was intended to ban particular devices, among them eavesdropping equipment which could be worn on the person by a party to a conversation, and hence used in a manner which would not violate § 2511 because of its “consent exception.”

2. Thus far, we have focused on rejecting the District Court’s approach to the interpretation of § 2512. The next task is to consider what devices are within the prohibition of § 2512(1) (b) (manufacture and possession) and § 2512(1) (c) (1) (advertising), because the design of the device “renders it primarily useful” for the purpose of surreptitious interception of wire or oral communications, and what kind of advertising is prohibited by § 2512(1) (c) (2) because it “promotes the use” of the device for surreptitious interception, even though possession or manufacture of the device advertised is not unlawful because the device advertised is not “primarily useful" for surreptitious interception.

We do not think it is appropriate to attempt to define the contours of this statute except in the context of a trial, which may encompass executive interpretation, advice and warnings to industry, industry patterns in the manufacture and advertising of devices, and the defendant’s particular awareness and intent. Similarly, we think it appropriate to defer definitive consideration of a claim that a construction of the advertising prohibition of § 2512(1) (c) (2) to reach the promotion of any device for use in .any secret interception violates the Fifth Amendment in the failure to give fair notice of forbidden conduct. A court may construe a statute narrowly to avoid a serious doubt of its constitutionality. Richmond Co. v. United States, 275 U.S. 331, 346, 48 S.Ct. 194, 72 L.Ed. 303 (1928). Any claim that fair notice is lacking is, however, appropriately reached on a more complete record, after the Government has had an opportunity to establish scienter, for the scienter requirement needed for willful conduct may rescue a statute from the infirmity of vagueness. See, e. g., Screws v. United States, 325 U.S. 91, 101-105, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).

3. This is a new statute and it will doubtless pose a number of questions of interpretation. Questions may arise as to the implications of the exception in § 2512(2) for employees or agents of, or persons under contract with, Government agencies and communications common carriers. Questions may also arise as to the scope of the phrase in § 2512(1) (c) interdicting the placing of prohibited advertisements “in any newspaper, magazine, handbill, or other publication.” Whether this covers a brochure mailed out on request is a question that was not briefed or argued and that we do not purport to decide in this opinion. All such questions are best decided in the context of a trial, for the reasons stated in section IIIB2 of this opinion. We move one step at a time.

•x- * * * * *

The order of the district court is vacated and the case remanded for proceedings not inconsistent with this opinion.

So ordered.

      . 18 U.S.C. § 3731 (1970).

      . The relevant statutory provisions are IS U.S.C. §§ 2511, 2512, and 2513, which provide in pertinent part as follows:
      § 2511. Interception and disclosure of wire or oral communications prohibited
      (1) Except as otherwise specifically provided in this chapter any person who—
      (a) willfully intercepts, endeavors to intercept, or procures any other person to intercept- or endeavor to intercept, any wire or oral communication;
      $ H; $ H: $
      shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      ^ * :¡s * *
      (2) (d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercejited for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act.
      § 2512. Manufacture, distribution, possession, and advertising of wire or oral communication intercepting devices prohibited
      (1) Except as otherwise specifically provided in this chapter, any person who willfully—
      (a) sends through the mail, or sends or carries in interstate or foreign commerce, any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire or oral communications ;
      (b) manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire or oral communications, and that such device or any component thereof has been or will be sent through the mail or transported in interstate or foreign commerce; or
      (c) places in' any newspaper, magazine, handbill, or other publication any advertisement of—
      (1) any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire or oral communications; or
      (ii) any other electronic, mechanical, or other device, where such advertisement promotes the use of such device for the purpose of the surreptitious interception of wire or oral communications, knowing or having reason to know that such advertisement will be sent through the mail or transported in interstate or foreign commerce,
      shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      (2) It shall not be unlawful under this section for—
      (a) a communications common carrier or an officer, agent, or employee of, or a person under contract with, a communications common carrier, in the normal course of the communications common carrier’s business, or
      (b) an officer, agent, or employee of, or a person under contract with, the United States, a State, or a political subdivision thereof, in the normal course of the activities of the United States, a State, or a political subdivision thereof, to send through the mail, send or carry in interstate or foreign commerce, or manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire or oral communications.
      § 2513. Confiscation of wire or oral communication intercepting devices
      Any electronic, mechanical, or other device used, sent, carried, manufactured, assembled, possessed, sold, or advertised in violation of section 2511 or section 2512 of this chapter may be seized and forfeited to the United States.
      * * * * *

      . Counsel lias argued that “secret intelligence investigation” refers merely to the subject of the conversations taped in one of the situations described by the preceding words in the same section of the brochure— a “face-to-face conversation,” “around-the-table conference,” or a lecture. We hold only that there is “probable cause” to believe that the advertiser was promoting use of the device for recording of a conversation in circumstances where the participants are unaware of its use.

      . See Brinegar v. United States, 338 U.S. 160, 172-173, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Von Sleichter v. United States, 153 U.S.App.D.C. 169, 174, 472 F.2d 1244, 1249 (1972).

      . Webster’s Third International Dictionary gives the following synonyms for “surreptitious” : secret, stealthy, clandestine.

      . 15 U.S.C. § 1335 (1970).

      . Section 2512(2) provides that it shall not be unlawful for the following persons to possess, manufacture, sell, transport, or send through the mail a device “primarily useful for the purpose of surreptitious interception” :
      (a) a communications common carrier or an officer, agent, or employee of, or a person under contract with, a communications common carrier, in the normal course of the communications common carrier’s business, or
      (b) an officer, agent, or employee of, or a person under contract with, the United States, a State, or a political subdivision thereof, in the normal course of the activities of the United States, a State, or a political subdivision thereof. If the exception of § 2512(2) is read broadly, as intending to permit exempt persons to be supplied with interceptive devices prohibited as to other persons, it may possibly imply exemption not only for one under contract with a communications carrier or government agency, but also for one who conducts limited advertising or solicitation reasonably intended and designed so as to reach only persons whose use of interceptive devices is exempt under § 2512(2). The possibility of such an implied exemption was not raised by the parties, and we cannot ascertain from the record before us whether it could have meaning for the case at hand. We advert to the matter as a further illustration of the range of questions which must be left open at this juncture.


source: Caselaw Access Project

license: Public Domain

text:
    WESTERN AIR LINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Alaska Airlines, Inc., et al., Intervenors. STATE OF ALASKA et al., Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent, Alaska Airlines, Inc., Intervenor. PAN AMERICAN WORLD AIRWAYS, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Alaska Airlines, Inc., Intervenor.
    Nos. 72-1033, 72-1162 and 72-1165.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 16, 1972.
    Decided Feb. 20, 1974.

      James F. Bell, Washington, D. C., with whom Gerald P. O’Grady, Los An-geles, Cal., was on the brief, for petitioner in No. 71-1033.
    M. Kenneth Frank, Asst. Atty. Gen., was on the brief for petitioner, State of Alaska.
    M. T. Thomas, Juneau, Alaska, of the bar of the Supreme Court of Alaska, pro hac vice, by special leave of Court for petitioner in No. 72-1162.
    Richard J. Fahy, Jr., New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court with whom Robert N. Duggan, Washington, D. C., was on the brief for petitioner in No. 71-1165.
    Warren L. Sharfman, Associate Gen. Counsel, Litigation and Research, C.A.B., with whom R. Tenny Johnson, Gen. Counsel, O. D. Ozment, Deputy Gen. Counsel, Ivars V. Mellups, Atty., C.A.B. and Howard E. Shapiro, Atty., Dept, of Justice, were on the brief for respondent.
    Herman F. Seheurer, Jr., Washington, D. C., with whom Robert Reed Gray, Louis Hayner Kurrelmeyer, Washington, D. C., and Henry J. Camarot, Eugene, Or., were on the brief, for intervenor Alaska Airlines, Inc.
    Lofton L. Tatum, Portland, Or., and Harry A. Bowen, Washington, D. C., filed a brief on behalf of City of Portland et al. as amici curiae urging reversal.
    Edward A. Stahla, Ketchikan, Alaska, entered an appearance for intervenors, the City of Ketchikan et al. in No. 72-1033.
    Before LEVENTHAL and ROBB, Circuit Judges, and WILLIAM J. JAME-SON, Senior U. S. District Judge for the District of Montana.

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

   LEVENTHAL, Circuit Judge:

These consolidated petitions for review of an order of the Civil Aeronautics Board challenge the Board’s decision to suspend the authority of two air carriers to operate on certain routes contained in permanent certificates, issued to them by the Board, pursuant to § 401 of the Federal Aviation Act, 49 U.S.C. § 1371. Acting under its power to “alter, amend, modify or suspend any . . . certificate ... if the public convenience and necessity so require,” 49 U.S.C. § 1371(g), the Board suspended the authority of Pan American World Airways and Western Air Lines to serve certain cities in Alaska. Simultaneously, the Board renewed the authority of another carrier, Alaska Airlines, to serve the same cities. Petitioners Pan American and Western ask reversal of the Board’s order insofar as it suspends their authority to serve these cities. The carrier petitioners are joined by petitioner State of Alaska and interven-ors the City of Juneau, Alaska, and the Juneau Chamber of Commerce (“the Juneau parties”). The Juneau parties, in addition, challenge the authorization of Alaska Airlines to operate over the routes in question. Intervenor Alaska Airlines joins the Board in urging that the award of routes to it, and the suspensions of the other carriers, were proper. For the reasons set forth below, we affirm.

I. STATEMENT OF FACTS

A. Background of the Alaska Service Investigation

The Board orders under review stem from a proceeding known as the Alaska Service Investigation, instituted in March, 1969, as the latest of a series of periodic examinations by the Board of air transportation to and within Alaska. The previous such comprehensive investigation was conducted in 1965. After completion of that investigation, three carriers held authority to provide service along the Southeastern Alaskan routes which are the subject of this litigation: Pan American World Airways, a carrier with international operations, among them service from Seattle to Juneau and Fairbanks, Alaska; and Pacific Northern Airlines and Alaska Airlines, two regional carriers operating between Seattle and a variety of small cities in Southeast Alaska.

The 1965 investigation had resulted in some adjustments to the Alaskan operations of these carriers. Pan American’s authority to provide service between Seattle and Juneau was suspended for a seven-year period. At the same time, Pan American became the sole provider of non-stop service between Seattle and Fairbanks as a result of the simultaneous suspension of Alaska Airlines’ authority to provide that service.

The service which is in controversy in this litigation lies along the “inside” route from Seattle to Anchorage, a land route over Southeastern Alaska which includes the intermediate points of Ketchi-kan, Sitka, Juneau, Yakutat and Cordova. This inside route is to be distinguished from the direct, over-water route from Seattle to Anchorage.

As the 1969 Alaska Service Investigation began, two carriers were operating along the inside route. Western Airlines, a carrier serving many western continental U.S. cities, had acquired Pacific Northern Airlines by merger in 1967 and consequently was providing service, under a permanent certificate, between Seattle and Anchorage, including intermediate cities of Ketchikan, Juneau, Yakutat, and Cordova. Alaska Airlines, a carrier having predominantly intra-Alaskan operations, part of which were conducted under temporary authority, provided service along the same route as Western, but lacked the authority (held by Western) to fly Seattle-Anchorage and Seattle-Juneau non-stop runs. Pan American’s permanent certificate embodied authority to operate between Seattle and Juneau, but the seven-year suspension of that authority, ordered in 1965, was still in effect.

During the course of the investigation, Western requested deletion of its authority to serve Cordova and Yakutat, on the northern segment of the inside route, because these operations were unprofitable. The Board granted Western’s request on a temporary basis but reserved a final decision until completion of its comprehensive review of Alaskan air transportation.

B. Decision of the Hearing Examiner

In his opinion the Hearing Examiner announced the following general principles which would govern the authorization of service and assignment to carriers :

To provide Alaska with optimum air service requires (1) integrating its entire air system so that the stronger markets will help support the weaker, (2) direct and one carrier service to the maximum extent possible, (3) maintaining competition where economically feasible, (4) service to the smaller isolated points even if subsidy is necessary, (5) coordinating mail service with passenger and cargo service, and (6) imposing government supervision and control to insure adequate service to the smaller noncompetitive points.

Examiner’s Initial Decision 16 (“I.D.”).

The Examiner noted the “peculiar problems” of air transportation in Alaska: dependence upon air transportation because of lack of other modes, and, at the same time, population, climatic, and geographic characteristics which make provision of air transportation difficult and expensive. I.D. 14. The Examiner stressed that at many small points in Alaska the demand for air transportation was insufficient to support competitive service. He concluded that there was a need to structure routes so as to provide for route cross-subsidization, but noted both that this need could not be the sole basis for an award, and that the interest of reducing government subsidy must not overshadow the need for adequate service (I.D. 16-17):

While it is important that the revenues from heavily traveled segments be made available to support operations over the weaker routes and to reduce subsidy, attempts to reduce subsidy and strengthen weak carriers must not overshadow the need for adequate service.
****** Although good routes should be operated by those carriers which can use them to the greatest advantage in serving weaker segments and * points, routes should not be awarded and competition eliminated merely to help the carriers with the largest operating deficits. There are numerous other causes for operating deficits besides poor route structure and lack of adequate markets. The Board should avoid route awards merely to cut subsidy and to help a weak carrier.

Four carriers made proposals to the Board for future service along the inside route. Western proposed to continue its Alaska service which remained after the temporary deletions approved by the Board. Alaska Airlines proposed continuation of existing service, and new service as well. Pan American intended to reinstate service on authorized routes upon expiration of its 1965 suspension. A fourth carrier, Wien Consolidated Airlines, then having entirely intra-Alaskan operations, also proposed new service from Seattle to Southeastern Alaska. I.D. 24. Two of these carriers, Wien and Alaska, were at that time sustaining net losses on their Alaskan operations and were receiving government subsidies.

In applying the principles of decision to the awards of service at issue here, the Examiner considered the inside route in two segments — the northern segment, from Juneau to Anchorage, and the southern segment, from Seattle to Juneau.

1. Northern segment. Three carriers proposed service between Juneau and Anchorage: Western, Alaska, and Wien. The Examiner considered that the projected demand for this service would support only a single carrier. I.D. 35. Of the three carriers, only Alaska was willing to serve the intermediate points of Yakutat and Cordova — with Western, indeed, requesting that the deletion of these sites from its operating authority be made permanent — and this fact led the Examiner to prefer Alaska as the sole carrier. The Examiner found that by integrating service between Juneau and Anchorage with service to the intermediate points, Alaska could “arrange its schedules to provide [trips] daily in each direction at times most convenient to the public.” I.D. 35. Accordingly the Examiner recommended rejection of Wien’s application, permanent deletion of Western at Yakutat and Cordova, and suspension of Western’s authority to offer Juneau-Anchorage non-stop service. I.D. 74.

2. Southern segment. After reviewing projections of traffic between Seattle, Ketchikan, Sitka and Juneau, the Examiner concluded that service to these cities could support competition by only two carriers. “Although a market of this size may not be the optimum for two carrier competition,” the Examiner found two-carrier service justified by the lack of alternative modes of transportation. I.D. 25-26. He was faced with choosing among four carriers: Pan American, not then operating the route but authorized to do so under its permanent certificate; Western and Alaska, both currently operating; and Wien, which did not then possess any operating authority over the route.

The Examiner found Wien and Alaska the preferred carriers on several grounds. They proposed equipment equal in speed and comfort to that proposed by Western or Pan American. They would have more equipment available to meet varying demands, as compared with Pan American and Western. I.D. 31-33. They could integrate Seattle-Southeast Alaska operations with other intra-Alaska service they provided, offering easier connections to other Alaskan cities to users. I.D. 27-28, SO. Finally, they were willing to undertake a package of services, including unprofitable ones. The importance of this last factor is underscored by the Examiner’s view of Western’s total proposal to retain Seattle-Juneau and Juneau-Anchorage non-stop service, but withdraw unprofitable service to intermediate cities on the inside route, as well as to other small Alaskan cities. He observed:

It is clear that Western is attempting to slough its unprofitable Alaska points and segments and retain only the profitable ones. To permit a large domestic trunk carrier to drain $2.5 million from Alaska and at the same time delete needed service at a saving of $3 million would be a step backward. Revenues earned by carriers from profitable Alaskan routes should, to the extent practicable, be available to pay for needed Alaskan services. I.D. 29-30.

The Examiner reiterated his conclusion that Western or Pan American could not profitably join a route already served by two carriers. He noted that Alaska and Wien should operate alone, because four-carrier competition would dissipate profits which would otherwise accrue to Alaska and Wien and become available to “support their other Alaskan operations,” I.D. 32. Accordingly, the Examiner recommended a seven-year suspension of Western’s Seattle-Ketchikan-Juneau authority, and a renewal of Pan American’s suspension. Alaska was to offer Juneau-Sitka-Ketchigan-Seat-tle service and Seattle-Juneau non-stop service, and Wien was to be given temporary authority to provide Seattle-Juneau non-stop service.

C. The Board’s Order The Board affirmed the Examiner’s recommended suspensions and the selection of Alaska to operate between inside route cities. Board Opinion (“Op.”) 13. The Board, however, reversed the Examiner’s award of Seattle-Juneau non-stop service to Wien, on the grounds that (1) there was no need for two-carrier competition on the route; (2) such competition could endanger the profitability of Alaska Airlines’ competing service; and (3) Wien would have difficulty establishing service to the continental states. Op. at 8-10, 25-27.

In addressing the problem of service along the inside route, the Board began by noting that “if all carriers exercised their certificate rights at all the points in question, the result, at current and foreseeable traffic levels, would be wasteful and uneconomic service.” Op. 15. The Board found the Examiner’s projections of traffic generally too optimistic, and disapproved his inflation of a traffic growth rate based upon economic stimuli which he thought would be provided by exploitation of North Slope oil resources. Op. 6. Using more conservative demand projections, the Board rejected the Examiner’s conclusion that Seattle-Juneau service would support operations by two carriers, and projected losses for second-carrier service by either Western or Pan American. Op. 16 n. 20.

In choosing a single carrier to provide inside route service, the Board stated that Pan American and Western possessed an advantage in “their status as certified incumbents,” but also noted that “in virtually all other respects, the traditional decisional criteria employed in route proceedings support Alaska’s selection.” Op. 16. The Board regarded Western’s proposed service as comparatively inferior because it offered no nonstop Seattle-Juneau flights during peak season, and no turn-around round trips on the Seattle-Juneau-Anchorage runs. Also, Western proposed flights on the northern segment of the inside route only “as an adjunct of long-haul operations originating in various Southwestern [continental] cities.” Similarly, the Board found that Pan American’s selection over Alaska would “result in a sharply reduced level of service for Seattle-southeast Alaska passengers.” Op. 16-17.

Alaska Airlines, however, was favored because of its ability and incentive to integrate inside route service with service to other Alaska points. The Board concluded:

Alaska Airlines, as an Alaska transportation specialist with long experience in serving southeast Alaska and Juneau/Yaku tat/Cordova/An-chorage traffic, and with considerable identity at Seattle, would concentrate on responding to the air travel needs of passengers in these Alaska markets. By combining nonstop operations in the larger Seattle-Juneau and Juneau-Anchorage markets with one- or two-stop flights via intermediate points, Alaska will offer far more total frequencies than any other applicant. Op. 17-18.

The Board also noted that the assignment to Alaska would allow combining profitable and unprofitable service with a single carrier so as to permit route cross-subsidization in preference to government subsidy under 49 U.S.C. § 1376.

The Board ordered a suspension of Pan American’s authority to operate between Seattle, Ketchikan and Juneau, and of Western’s authority on that route and on the Juneau-Anchorage route. Western, however, retained its Seattle-Anchorage non-stop runs. Alaska’s existing authority along the inside route was augmented to allow it to conduct Seattle-Juneau, Juneau-Anchorage, and Seattle-Anchorage non-stop service, as well as to serve intermediate points, for a seven-year period.

At the same time, Pan American received assurance of continuation as sole provider of Seattle-Fairbanks non-stop service, described by the Board as the “single largest market at issue.” Op. 27. Alaska was then providing service to Fairbanks via Anchorage and was carrying most of the traffic to Fairbanks. Op. 28. In addition Alaska proposed more non-stop frequencies to Fairbanks than Pan American did. However, the suspension of Alaska’s authority to provide non-stop service, first imposed in 1965, was continued.

Finally, the Board addressed itself to the duration of the route adjustments it had ordered, as follows (Op. 20):

[W]e recognize that the pattern we are now establishing calls for significant changes in existing Pacific Northwest/southeast Alaska/Anchorage services, and that a final evaluation of this new pattern can be made only on the basis of operating experience. Therefore, we will limit our award to Alaska (and the corresponding suspensions of Western and Pan American) to a temporary, experimental period which will permit us to reevaluate our decision with the benefit of such experience, and will, in general, provide the Board with maximum de-cisional flexibility in responding to changing economic conditions. We believe that the seven-year duration adopted by the examiner represents a reasonable test period, long enough to provide Alaska an adequate opportunity to develop its service in these markets and enable it to obtain any financing it might find necessary to acquire or maintain equipment or facilities.

D. Contentions of the Parties

Pan American and Western, in their petitions for review, challenge certain findings made by the Board and urge that a seven-year suspension of their operating authority is beyond the Board’s power. The carriers are joined by petitioner state of Alaska and the Juneau parties as intervenors, the latter urging in addition that the Board did not make requisite findings of Alaska’s witness to provide service. Alaska has intervened in support of the Board’s order, urging that it acted properly in the selection of Alaska and the suspensions of Pan American’s and Western’s authority.

We first consider the objections to the Board’s findings and then turn to the issue of the Board’s power to order the suspensions.

II. THE PERTINENT FINDINGS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE

In reviewing the Board’s action, we are bound by the Board’s findings of fact if supported by substantial evidence. 49 U.S.C. § 1486(e). If the findings are supported by substantial evidence, we must accept also the conclusions drawn therefrom unless they are seen to be arbitrary or capricious, or to rest on premises that are deemed contrary to ascertainable legislative intent, or are otherwise contrary to law. Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971). In applying the substantial evidence test, “we are obliged to search the entire record, or those parts of it to which the parties refer us, to determine whether . the agency . . . could fairly and reasonably find the facts as it did.” Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 408, 379 F.2d 453, 462 (1967). A conclusion may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view. See Lorain Journal Company v. FCC, 122 U.S.App.D.C. 127, 351 F.2d 824 (1965).

Applying the foregoing principles to the Board’s action here, we have no difficulty in rejecting the objections made to its conclusions.

A. Findings That Routes Would Not Support Competition

1. Juneau-Anehorage

Both the Examiner and the Board found that the Juneau-Anehorage non-stop service would support only one carrier. This conclusion was not seriously disputed before the Board, and indeed the carriers do not attack it here. There is a protest in the petition for reconsideration of the Alaska Transportation Commission, that “the Board erred in accepting the winner-take-all representations of carrier parties that no nonstop service competition could be maintained between Juneau and Anchorage. . . .” (p. 4 If 5). The State’s objection is sketchy and lacks any specific reference to the record.

We have examined those portions of the record we discern as pertinent, and we see no basis for judicial interposition. The Examiner projected annual profits for Alaska Airlines on the Juneau-Anehorage non-stop service amounting to $838 thousand with more than $600 thousand as profits available for cross-subsidization of other routes. I.D., App. 3 at 1.

There is some divergence in outlook between findings that competition between two carriers is not viable on a route, and that one carrier will nevertheless generate “excess profits” available for cross subsidization. But there is no inherent inconsistency. Perhaps some explication should have been supplied, but we fairly discern the Board’s analysis as reflecting a conclusion that the objectives entrusted to it — which include the promotion of air transportation for commercial, mail and defense needs —would be best served by permitting service by a single carrier, allowed to generate supra-competitive profits while simultaneously undertaking unprofitable local service requiring subsidization. The Board was avoiding what it viewed as a considerable risk that the market would not be large enough to support the active competition of two carriers operating at a reasonable profit.

The Board projected that profits on Juneau-Anehorage service would offset inadequate revenue on the service to the smaller intermediate cities. While the practice of allowing route cross-subsidization has been criticized, and it breeds problems that require that it be kept under strict surveillance, it cannot be doubted that the Board has the power to permit it. See, e. g., United Airlines v. CAB, 81 U.S.App.D.C. 89, 155 F.2d 169 (1946). On several occasions, this approach has been expressly approved by the Supreme Court. See American Trucking Assoc. v. United States, 355 U.S. 141, 78 S.Ct. 165, 2 L.Ed.2d 158 (1957); Baltimore & O. R. R. v. United States, 345 U.S. 146, 73 S.St. 592, 97 L.Ed. 912 (1953).

We revert again to the fact that the Board’s conclusion that only a single carrier should serve the route was not disputed by any of the petitioner carriers— those who would have the most to gain from access to the market as competitors, if they thought it would really be profitable, and who also would have the incentive to sharpen their pencils to calculate whether a substantially profitable opportunity was being withheld. This case must be viewed against the Board’s view that traffic forecasts in Alaska were uncertain. It was permissible for the Board to say, in effect, “we believe the route will support only a single carrier, but if we have underestimated demand, desirable cross-subsidization will occur.”

2. Seattle-Juneau

Although the Examiner found that two carriers could serve Juneau-Seattle and the intermediate stop of Ketchikan, the Board disagreed, saying “we find no substantial evidence of an affirmative need for competitive service.” Op. at 16. We would be concerned if the Board presumed competition inappropriate on a route for which several carriers were already certificated, and had placed the burden of a contrary demonstration on the carrier. But that is not what the Board did, as we see it.

What the Board did was to disagree with the Hearing Examiner’s projections of demand for services, believing that the Examiner had relied unduly upon a speculative industrial growth of Alaska. The Board used demand projections made by the agency’s Bureau of Operating Rights (which the Examiner had regarded as too low) and on the basis of these calculations concluded that the route would sustain only single-carrier service. Op. 6-8. Specifically, the Board found that either Pan American or Western would incur losses by providing second-carrier service on the Juneau-Seattle run the Board was assigning to Alaska. Although this is a finding, it is in the area of prediction and projection, as to which particular latitude is accorded the agency. The Board was entitled to take a more conservative view than the Examiner where the evidence would permit it to project either way. Lorain Journal v. FCC, supra. There was substantial evidence to support the Board’s projection, and it was neither arbitrary nor capricious.

The Juneau parties contend that the Board’s finding of no competitive service is inconsistent with its selection of Alaska as the appropriate single carrier partly because it proposed more frequent flights. The Juneau parties say that “the problem of uneconomic competition is largely illusory since by voluntary agreement and conditions imposed by the Board, point to point competition could easily be avoided.” Juneau brief at 25. The Board was not required to start a fire merely because it would have means which would in all probability enable it to cope with the fire before it got out of hand. The Board may rightly avoid competition it reasonably believes will result in an offer of more services than the market will require and support, especially when the remedy — direct regulation of a carrier’s level of services — embroils the Board in the minutiae of operations. The Board does not act unreasonably if it seeks, so far as feasible, to leave the details of operations to private management, and to frame its role in terms of broad surveillance. The fact that the Board might have accomplished the same result by other methods does not invalidate its choice. Philadelphia Television Broadcasting Co. v. FCC, 123 U.S.App.D.C. 298, 359 F.2d 282 (1966).

B. Finding That Alaska Offered Superior Service

Having concluded that a single carrier should provide service on the inside route, the Board found the service proposed by Alaska to be comparatively superior to that offered by either Pan American or Western. The Board explained at length the reasons for its preference for Alaska. The Board was not insensitive to the status of Pan American and Western as holders of permanent certificate authority on the routes, for it stated at the outset of its opinion that “certificated incumbents are entitled to have their existing stake and historic identity in the subject markets accorded considerable decisional significance. . . .” Op. 4. But the Board found the advantage conferred by incumbency outweighed by the other consideration it set out.

Western contends that the Board failed to consider the advantages it could offer Alaskan users by its ability to integrate Alaskan service with its other continental service. The Examiner considered these asserted benefits and found them overstated and, in any event, outweighed by Alaska’s ability to integrate service with other intra-Alaskan operations. I.D. 30. The Board agreed. Op. 18. The Board’s conclusion that Alaska was the preferred carrier is supported by substantial evidence and reasonable analysis.

C. Findings of Alaska’s Fitness To Perform Service

Before the Board may issue a certificate authorizing air transportation to any carrier it must find that the carrier is “fit, willing and able properly to perform” the transportation authorized. The Board has given content to this language through its decisions, focusing mainly on the adequacy of (1) technical and managerial resources and (2) financial resources available to the carrier. See Braniff Airways v. CAB, 79 U.S.App.D.C. 341, 147 F.2d 152 (1945); United States-Alaska Service Case, 14 CAB 122, 136 (1951).

Both the Examiner and the Board made findings of fitness which track the statutory language. The Juneau parties, however, attack the finding of Alaska’s financial fitness to provide the transportation authorized. Brief of Juneau parties at 18-21. Responding to an objection raised by Western in its petition for reconsideration, the Board said:

While we are aware of Alaska’s heavy losses in recent years and its current financial difficulties, the carrier has a long history of certificated operations between Seattle and Alaska and in mainline intra-Alaska regional markets. Furthermore, it is already certificated and bas considerable identity at all the points in issue, so that our award should not involve unusually high pre-operating expenses or other absorption costs. Finally, the new, experimental service pattern we have adopted in southeast Alaska will be a source of immediate strengthening for Alaska, resulting, in our judgment, in a marked improvement in the carrier’s financial posture in the very first year of operations. Under the circumstances, we conclude on the record before us that Alaska is fit, willing and able to perform the air transportation we have authorized, in the context of the overall southeast Alaska route structure we have established in this proceeding.

Opinion on Reconsideration at 10.

Alaska’s past unprofitable ventures did not preclude the Board from concluding that in light of new awards, the carrier would obtain financial resources necessary to provide service. The Juneau parties do not seriously dispute this, but lean heavily on the Board’s later reference to Alaska’s “serious, perhaps critical” financial condition as a reason for refusing to stay its award pending appeal. Opinion on Reconsideration at 13. The forecast of the consequence of a stay of award is not inconsistent with a finding of fitness based upon the position that would develop when the award became effective. We see no infirmity in the Board’s finding of fitness.

III. THE BOARD’S POWER TO ORDER THE SUSPENSIONS

We turn, finally, to the contention pressed most vigorously by the carrier petitioners. Notwithstanding the Board’s conclusions that the routes in issue would not support operations by all carriers possessing operating authority over them, and that Alaska’s service proposals were superior to the others, the petitioner carriers argue that the Board exceeded its statutory power by suspending Western and Pan American, two permanently certificated carriers, for a seven-year period, and issuing a seven-year temporary authority in favor of Alaska. Consideration of this contention requires a brief discussion of the Board’s regulatory power under the Federal Aviation Act.

A. Board’s General Power To Suspend Permanent Certificates

Under § 401 of the Federal Aviation Act, as amended, 49 U.S.C. § 1371, the Board is empowered to issue certificates authorizing their holders to engage in air transportation “required by the public convenience and necessity.” The Board may issue temporary certificates, authorizing service “for such limited periods as may be required by the public convenience and necessity,” § 1371 (d)(2), or the Board may issue permanent certificates, having no expiration date, § 1371(d)(1). Temporary certificates must, of course be extended by an order of renewal effective at date of certificate expiration.

Operations performed under a certificate are subject to continuing supervision by the Board. The Board may revoke any certificate prior to expiration “for intentional failure to comply with any provision of [the Act] or any order, rule, or regulation” issued by the Board or any “term, condition, or limitation” contained in the certificate, § 1371 (g). The Board is also empowered, upon “petition or complaint or upon its own initiative” to “alter, amend, modify, or suspend any . . . certificate, in whole or in part, if the public convenience and necessity so require.” § 1371 (g). It is the power to suspend which the Board invoked as to Pan American and Western.

The limitations on the Board’s power to revoke a certificate — requiring, after notice and hearing, a finding of an “intentional failure to comply,” as well as the allowance of a reasonable time for compliance with a Board order commanding obedience to the provision of law found to have been violated — evidence a Congressional intent to provide holders of certificates with some security against the termination of the authority granted thereunder. CAB v. Delta Airlines, 367 U.S. 316, 81 S.Ct. 1611, 6 L.Ed.2d 869 (1961).

The “alter, amend, modify or suspend” language of § 1371, however, empowers the Board to make changes in a carrier’s operating authority even when it is granted by a permanent certificate. Congress did not enact a scheme that limited the Board merely to creation of entry barriers, installing each permanently certificated carrier indefinitely, free to remain until it chose to withdraw in the face of competition or reduced demand. The Board was given the power to respond to changed economic conditions and redefinitions of the “public convenience and necessity” by adjusting the operating authority of carriers. This authority has been recognized for at least twenty years. In the 1950’s the Board, acting under its modification and suspension power, removed certain routes from the authority granted to trunk carriers and assigned them instead to local service carriers, which were frequently the sole providers of air service. See G. C. Eads, The Local Service Airline Experiment 112 (1972). As the Seventh Circuit said then in rejecting a trunk carrier’s challenge to Board action:

It seems unreasonable that Congress intended to give the Board power to grant certificate rights, but to deny it any authority to modify them to meet the changing demands of commerce and the national defense. The need for some flexibility in an industry is characterized by continual and rapid changes is apparent.

United Air Lines v. CAB, 198 F.2d 100, 106 (7th Cir. 1952). See also Western Air Lines v. CAB, 196 F.2d 933 (9th Cir. 1952); Alaska Airlines v. CAB, 109 U.S.App.D.C. 230, 285 F.2d 672 (1960).

B. The Seven-Year Suspensions

The carriers do not essentially dispute the foregoing as a general analysis, but assert that a seven-year deprivation of operating authority granted under a permanent certificate is outside the limits of the Board’s power to “alter, amend, modify or suspend,” at least where some operating authority is retained by or given to a carrier under a temporary certificate.

The Board’s power to revoke a certificate is limited, in the interest of route security, by provisions that are not applicable to the power given to the Board to modify or suspend, in the interest of flexibility. The reconciliation of the interests of security and flexibility 's itself a matter of line-drawing, in which the court rightly looks for guidance to the Board at least in the first instance, so that the “spotlight of accountability for the health of air transportation” remains focused on the Board. Frontier Airlines v. CAB, 142 U.S.App.D.C. 124, 131, 439 F.2d 634, 641 (1971).

Historically the Board has shown restraint in the employment of its power to “alter, amend, modify, or suspend” certificates. It has evolved a self-imposed limitation on its modification power, limiting itself to those modifications which do not result in a “basic transformation” of a carrier’s operations. Pana-gra Terminal Investigation, 4 C.A.B. 670 (1944). See also Alaska Airlines v. CAB, supra. Similarly, the Board has used its suspension power in restrained fashion, generally limiting suspensions to periods considerably shorter 'than those at issue here.

The deprivation wrought by the suspensions of Western and Pan American must be viewed in the context of the unique Alaska problem, and measured with reference to the total effort of the Board to deal with Alaska air transportation. The Board took measures to strengthen each carrier operating in Alaska — Western, by allowing it to delete services to five small cities in Southeastern Alaska which were unprofitable; Pan American, by allowing it to continue as the sole carrier operating nonstop between Seattle and Fairbanks, a route described by the Board as the “largest single market at issue;” and Alaska by granting it, for a seven-year period, sole carrier status along the “inside” route. The net result of the Board’s action is likely to be a gain by all carriers.

Alaska is the kind of situation that leads men to long-range expectations, and Pan American and Western, by retention of their permanent certificates (albeit subject to suspension) have the “security” of participating in the long-range air transport markets generally projected for our 49th state.

The Board candidly acknowledged uncertainty in the demand forecasts on which it based its decisions and perceived the need to reexamine route structure after the passage of a reasonable period. The duration of the period seems peculiarly a matter for the Board’s judgment, since it involves not only a judgment about the reliability of forecasting market conditions but also a balancing of the pro’s and con’s of more frequent review of Alaska market conditions, including assessment of alternative uses of the Board’s investigative and decisional resources. It has previously used a seven-year period for suspensions in regard to Alaska certificates, and while this is not the kind of matter to be approached in terms of stare decisis, the Board’s consistency indicates that it was not reaching out to break new ground in order to undercut Western and Pan American.

We are sensitive, however, to the concern which emerges from the contentions of the carrier petitioners, that they are being foreclosed for seven years from a market in which conditions may change dramatically. Similarly, the arguments of the non-carrier litigants bespeak a concern over the chilling consequence of route awards kept frozen too long in a changing situation.

The Board’s opinion signifies that it, too, will be sensitive to these concerns. The Board noted that Alaska offers the promise of economic development in the exploitation of North Slope oil reserves, the settlement of native claims, and continued expansion in lumber, fishing, mining, and tourist industries. Op. at 6. The Board characterized these as “hopeful but indeterminate” developments and declined to ground any predictions of increased demand in them. We believe the Board stands ready to reexamine the necessity for continued suspension should a significant change be realized as to one or more of these “hopeful” developments. The Board can do so on its own motion or it may entertain the petition of any of the parties alleging that substantial and material developments, alluded to by the Board in its order but then incapable of precise estimation, make the continued suspension of certificated carriers inappropriate. We are confident that the Board will give fair consideration to any such representations submitted to it after a reasonable time, while at the same time protecting its administrative resources from exhaustion in engaging frivolous claims. On this understanding of the Board’s posture, we hold that its suspensions of Pan American and Western on the inside route are lawful.

Affirmed.

      . All routes described herein may be identi-. fied on the maps which appear in Appendix A of this Opinion.

      . When air transportation services which the Board finds necessary cannot be supported by the fares charged to users, the Board may provide government subsidy. The Board provides a subsidy by exercising its power to set mail rates which compensate carriers to the extent necessary to maintain air transportation “required for the commerce of the United States, the Postal Service and the national defense.” 49 U.S.C. § 1376(b) (1970). Alternatively, the Board may structure award routes and set rates so that profits earned by a carrier on one route are available, in part, to offset revenue deficiencies on another. This use of internal profits is called cross-subsidization. Use of the internal subsidy allocates some of the burden of paying for below-cost service to users on other routes; mail pay subsidies, from federal revenue, puts the burden on taxpayers generally.

      . In addition to seeking withdrawal from Ya-kutat and Cordova, Western asked the Board’s permission to delete service to King Salmon, Homer, and Kenai, to discontinue Kodiac-Anchorage service, and to reduce service between Seattle and Kodiac, on the ground that all the foreging operations were unprofitable.

      . The Examiner had projected a “subsidy need” of $196 thousand on Alaska’s service to Cordova and Yakutat. I.D., App. 3, at 1.

      . See, e. g., R. Caves, Air Transport and Its Regulators: An Industry Study 435-40 (1962) ; G. Eads, The Local Service Airline Experiment 169-72 (1972).

      . The Board, of course, can control Alaska Airlines’ future revenues in a rate setting proceeding, and thus may reasonably have concluded that any underestimation of its profitability on inside route operations could be subsequently corrected.

      . It is no objection to say, as the Juneau parties do, that the Board’s findings were based upon Alaska’s service proposals. When the Board considers a carrier for a route it has not previously served it may naturally rely upon proposed service. Nor is it an objection that the Board, having chosen Alaska, failed to write into its certificate the obligation to provide every flight it had proposed. The carrier is obliged, under 49 U.S.C. § 1374, to provide “safe and adequate service,” and the Board will, pursuant to its regulations, investigate adequacy of service upon complaint or petition, or on its own motion. See 14 C.F.R. §§ 302.700-.704 (1973).

      . Three- and four-year suspensions were upheld in United Air Lines v. CAB, 198 F.2d 100 (7th Cir. 1952). See also Western Air Lines v. CAB, 196 F.2d 938 (9th Cir. 1952) (suspension); Alaska Airlines v. CAB, supra (modification).

      . The Examiner had concluded that the effect of all the proposed adjustments to Western’s authority, including those which it sought, would produce a net gain of $500 thousand annually. The Board re-affirmed this finding. Op. 24.

      . We have no occasion to become embroiled in the discussion between the carriers and the Board over the proper method of applying the Board’s “basic transformation test” in alteration or modification of certificates. Pan American and Western assert that in measuring the impact of a contemplated modification of a carrier’s certificate, the Board must look only to the carrier’s operations described in that certificate. The Board responds that the division of a carrier’s entire operations among several certificates is largely a matter of historical accident, and that a measurement of economic impact which looks only to operations authorized by a single certificate exalts form over substance. In our past decisions we have recognized that in determining the impact of a proposed modification the Board must undertake a realistic economic assessment, which includes an examination of “overall economic factors of revenue, expense, and volume of traffic.” See Alaska Airlines v. CAB, 109 U.S.App.D.C. 230, 232, 285 F.2d 672, 674 (1960). Whatever may be the limits of the Board’s modification authority, the Board’s approach here, which took into account the totality of its action in the region under investigation, embodies a realistic assessment of economic impact that we think is fairly embraced within the concept of modification.


text:
    UNITED STATES of America, Appellant, v. Warren J. COATES.
    No. 73-1403.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 6, 1973.
    Decided March 12, 1974.

      Peter K. Mair, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Paul L. Friedman, Asst. U. S. Attys., were on the brief, for appellant.
    William J. Garber, Washington, D. C. (appointed by this Court) for appellee.
    Before McGOWAN, TAMM and LEV-ENTHAL, Circuit Judges.
   LEVENTHAL, Circuit Judge:

This is an appeal by the Government from an order of the District Court suppressing as evidence a sawed-off shotgun and shotgun shells removed from the defendant’s person. A police officer’s discovery of these items led to a three-count indictment that charged defendant with possession of an unregistered firearm, 26 U.S.C. § 5861(d); a firearm not identified by serial number, 26 U.S.C. § 5861 (i); and a prohibited weapon, 22 D.C.Code § 3214(a). We reverse and remand.

I. STATEMENT OF FACTS

At the suppression hearing, the testimony of the sole witness, Officer Bryant Anderson, Jr., of the Metropolitan Police, set forth the following events. On Saturday, October 7, 1972, at about 8:30 p. m., Officers Anderson and Himes went to the Whitelaw Hotel at 1839-13th Street, N.W., Washington, D.C. The owner of the hotel had requested the police to give special attention to the building “because of the high crime rate in his building.” (Tr. 7). Officer Anderson’s assigned duties had included patrol of the area where the Whitelaw Hotel is located for about two years, and he was able to recognize most of the permanent residents of the hotel. (Tr. 7, 10). When visiting the hotel in response to the owner’s requests his usual practice is to inspect the common hallways and lavatories to ascertain whether persons he encounters there have a legitimate purpose in being present in the hotel. Upon meeting a person he does not recognize as a hotel guest, his normal procedure is to ask the person to produce identification and to explain his business in the hotel.

When Officer Anderson was asked whether he searches or frisks individuals he encounters, he replied that he does so “most of the time, especially in the wintertime when they wear long heavy coats where they can conceal weapons easily.” (Tr. 9-10). The officer added that he is likely to frisk someone “if the individual cannot give a good explanation of why he is in the building. fi

As to the night of October 7, Officer Anderson testified that he and Officer Himes alerted the hotel clerk of their presence and began their inspection of the hotel, starting on the first floor and proceeding to the floors above. They had just started up to the fourth floor when, in Officer Anderson’s words—

We just started up the first flight of stairs between the third floor and the landing between the third and fourth floors, about halfway up Mr. Coates came around, came down from the fourth floor, hit the middle landing and was just making the turn to come down that second set of stairs. As he made the turn he spotted myself and Officer Himes. As soon as he saw us he made a quick move to go back up the stairs, run up the stairs. It was quite a jerky move. I yelled to him to hold it. He looked at us for just a split second and shrugged his hands down alongside of his legs and said “shit”, in a disgusted manner. (Tr. 13)

Officer Anderson was asked why he had instructed Mr. Coates to “hold it.” He replied, “Mr. Coates looked like he was on the verge of fleeing for some reason unknown to me at that time.” (Tr. 14)

Officer Anderson was asked what happened next. He continued :

At that point Mr. Coates had an advantage on me as far as height. My head was approximately belt-level to him which gave him a very good kicking position if he chose to do it. Seeing this advantage, I placed my left hand on his mid-section to walk him back away from the edge of the stairs so I could get even with him. When I did I felt the butt of the sawed-off shotgun tucked down inside of his pants and under his jacket. (Tr. 14-15).

From the contact of his hand against the defendant’s jacket, Officer Anderson was confident he had felt the butt of a sawed-off shotgun or rifle. (Tr. 16). Officer Anderson walked the defendant away from the stairs and asked him what was in his pants. When Mr. Coates replied “nothing,” the officer reached into the defendant’s jacket and removed a sawed-off shotgun. The officers thereupon conducted a complete search of the defendant’s person and found two shotgun shells in his jacket pocket. The shotgun itself was found to be loaded.

On cross-examination, Officer Anderson further testified that the movement by defendant that preceded the command to stop was not a turning around but “a quick motion to the right as if to bolt . ” (Tr. 24). Was Mr. Coates “free to go” after he was directed to “hold it”? “Not until we checked him,” the officer responded. (Tr. 23).

Further questioning of Officer Anderson about placing his hand on the defendant as he ascended the stairs, proceeded as follows (Tr. 32):

Q: Now, when you say that you reached out, did you push him forcefully ?
A: No, Sir. Mr. Coates wasn’t fighting or causing any immediate danger at that moment. All I did was place my hand on his stomach above the belt-level in order to protect myself as far as a kick or a movement trying to run me over and back him back.
Q: Would you have done that with any individual in the Whitelaw Hotel, any male that you had come in contact with under those circumstances ?
A: Yes, Sir, I would have.

Would he have frisked the defendant had he not felt a weapon at the initial touching? Officer Anderson replied “possibly not,” noting that the defendant’s clothing was not bulky and that he saw no bulges. When defense counsel asked whether prior to the initial physical contact he had reason to fear that Mr. Coates was armed, the officer responded “I am always in fear that someone is armed.” (Tr. 33-34).

Asked by the Court whether he had been kicked by someone standing at a higher level, Officer Anderson answered that such an incident had occurred some three-and-a-half years earlier, when he was responding to a disorderly person call.

After the foregoing testimony the District Court ruled on January 26, 1973, that it would grant the motion to suppress. Its ruling is in the margin. The Government asked the District Court for a ruling that was more specific as to the ground on which the evidence was suppressed. The Court complied with the request, stating on February 2,1973:

. I find and conclude that the defendant was under arrest as the officer stated.
He said he would not let him move and he would not permit him to leave and that he acted without probable cause and found a transient on the steps and said he thought he was going to be kicked so he put his hand up and definitely that man was under arrest. He could not move. He did not use the word “arrest.”
I find no probable cause for arrest and the search was as a result. (Supp. Tr. 3).

II. DISPOSITION

A.

The District Court’s ultimate ruling reflects a legal conclusion that Officer Anderson placed the defendant under arrest when he told the latter to “hold it,’’’ and that this action violated the Fourth Amendment unless supported by probable cause. This conclusion was erroneous. Ever since Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Fourth Amendment jurisprudence has recognized a variety of police encounters with citizens which limit personal freedom but do not amount to arrests. These lesser intrusions, including “stops” and '“frisks,” are constitutional even in the absence of probable cause required for arrest so long as they satisfy the test of “reasonableness,” ascertained by balancing the Government interest further by police action against the invasion of individual privacy. 392 U.S. at 20-21, 88 S.Ct. 1868. The latest word on this kind of police activity appeared in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), where the Supreme Court held that a police officer may constitutionally detain a person “to determine his identity or to maintain the status quo momentarily while obtaining more information,” expressly viewing such an action as a forcible, but temporary, detention. 407 U.S. at 146, 92 S.Ct. at 1923. Because the District Court erroneously measured Officer Anderson’s action against the probable-eause-to-arrest standard, we must reverse.

B.

The Government asks us to go further and rule that throughout his encounter with the defendant, Officer Anderson acted reasonably, both in ordering the defendant to stop and in placing his hands upon the defendant’s midsection, the gesture which led to discovery of the concealed firearm. Such a determination, however, must await further examination by the District Court. We say this having in mind that although the District Judge erred in saying in his supplementary statement that there was a need for probable cause to support an arrest, what he may have had in mind was a conviction that under the totality of the circumstances the police officer acted unreasonably. Our remarks should not be taken as any indication of approval or disapproval of such a conclusion. Rather, we think that an appellate ruling should be preceded by further reflection on the underlying problems by counsel and by the trial judge.

This case requires a further fleshing out of the justification required by the Fourth Amendment for various encounters between police and citizens. Terry and Adorns dealt with a police officer’s constitutional power to detain suspects, and to disarm them, under circumstances suggesting the commission of a particular crime. Cases in this circuit since Terry have involved similarly suspicious circumstances. But police encounters with citizens are not all of a single kind. They are, as the Supreme Court observed in Terry, “incredibly rich in diversity.” 392 U.S. at 13, 88 S. Ct. 1868. Analysis is not aided by label-ling them all as “stops.” Encounters vary in the degree of intrusion; plainly there is a difference between an order to stop and give identification and a command to remain in a certain place for questioning for as long as twenty minutes. And although some restraint and constraint may be present whenever poliee officers confront citizens to ask questions, see Allen v. United States, 129 U.S.App.D.C. 61, 390 F.2d 476 (1968), such encounters differ in their potential for intimidation and abrasion. Delineation of the Fourth Amendment limitations on police investigative activity must proceed with sensitivity to these differences.

Plainly the circumstances under which Officers Anderson and Himes met the defendant, as they appear in this record, are less supportive of suspicion of criminal conduct than the circumstances we have encountered in our previous cases. Without implying that the same degree of suspicion is required to justify the police officers’ actions in this case, we note that our remand provides an opportunity to the Government to supplement its evidentiary presentation, focusing on any further facts which explain the officers’ particular response. In addition, the remand will give the Government an opportunity to clarify whether it relies upon a police authority to respond to particular suspicious circumstances and threats of crime present here, or upon a more generalized police power to stop persons momentarily and ask their business.

There is in this case the additional fact of Officer Anderson’s placing his hands on the defendant. The Government makes the point that this action was not a full-fledged pat-down for weapons, which the Supreme Court has indicated is not necessarily justified in all situations where an officer may detain for investigation. Adams v. Williams, supra, 407 U.S. at 146, 92 S.Ct. 1921. Yet an assessment of the reasonableness of police action must reflect an awareness that non-consensual physical contact represents a special intrusion into a person’s privacy. The mere fact that an officer may reasonably stop someone to ask questions does not necessarily make it reasonable for the officer to lay his hands on the person involved. Sanctity of the person is a concern of the law generally, and a special concern of the Fourth Amendment in particular.

Fourth Amendment jurisprudence involves prudence for the police as well as fairness for citizens. A police officer “need not defer . . . protective measures to the point of peril.” Young v. United States, supra, 435 F.2d at 409. Courts must be careful not to use hindsight in limiting the ability of police officers to protect themselves as they carry out missions which routinely incorporate danger. On the other hand, law enforcement officers must be sensitive to the rule that requires an articula-ble justification under the circumstances for laying their hands on a citizen; scrutiny of that justification must include such matters as whether less intrusive protective measures were available and unreasonably ignored. Officer Anderson’s testimony in this ease that he is “always in fear that someone is armed” properly reflects the need for police to be prepared for any contingency, but it does not support a routine authority to conduct a pat-down of any and all citizens a policeman encounters.

The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.

So ordered.

      . THE COURT: I am going to grant the motion to suppress. I find that in this hotel that admittedly is a transients hotel two police officers entered one night at the request of the owner because crimes had been committed in and around that hotel for sometime.
      And at the request of the owner and the knowledge of the Clerk at the desk the two officers began inspecting and checking out the place, the first floor, the second floor and the third floor and they were on their way up to the fourth floor on the steps, which steps were in the form of two flights, and the officer found about three steps above him in the middle of the steps this defendant, who came down and he looked at them and they looked up at him. He raised his hands and then dropped them and used some language and the officer said, stop.
      Then the man did stop and he didn’t do anything to indicate that he was going to do anything to the officer. The officer said he could have turned and run up the steps but actually didn’t run, and he didn’t turn. He made some kind of a movement but it was not a running movement.
      But with that the officer put out his hand against the stomach of the defendant, who was some three steps above him. The officer said this was to protect himself from being kicked. Well, the officer said his head was at the belt-level of the defendant and he put his hand up above him around the belt. I don’t see how that could have stopped a kick.
      In any event, there was no kick and the man was just standing there. And by putting his hand up against the defendant’s belt the officer felt the butt of a gun. The officer then checked the man out and searched him and found there was a sawed-off shotgun that has been admitted here in evidence.
      I think this was an illegal search. I am going to grant the motion to suppress.

      . We are concerned here only with Fourth Amendment limitations on police conduct, since there is no contention that the behavior of Officer Anderson exceeded statutory or other limitations on his authority.

      . See, e. g., United States v. James, 147 U.S.App.D.C. 43, 452 F.2d 1375 (1971) (informant’s tip that suspects were carrying narcotics); Young v. United States, 140 U.S.App.D.C. 333, 435 F.2d 405 (1970) (susoects riding in car observed tailing bank delivery truck); United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317, cert. denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972) (suspect observed fleeing from scene of robbery). See also Stephenson v. United States, 296 A.2d 606 (D.C.Ct.App. 1972), reviewing the “stop-and-frisk” cases in the District of Columbia Court of Appeals.

      . Compare ALI, Model Code of Pre-Arraignment Procedure, § 110.2(1) (Official Draft No. 1, 1972), authorizing stopping of persons under certain circumstances for a period not to exceed twenty minutes.

      . To the extent that there is an element of constraint inherent in any police-citizen encounter, the Supreme Court has declined to treat that fact as decisive in a determination whether consent to a police search is voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

      . See Bailey v. United States, 128 U.S.App.D.C. 354, 361, 389 F.2d 305, 312 (1967) (Leventhal, J., concurring).

      . The officers met Mr. Coates on the stairs, a place where they could expect to encounter guests, since the Whitelaw Hotel has no elevator for use of its patrons. Officer Anderson testified that he did not recognize Mr. Coates as a permanent hotel resident, but he added that the hotel has transient guests whom he would not recognize by sight, and both permanent and transient paying guests might themselves invite persons who reside elsewhere to their rooms. The time of the encounter was 8:30 p. m. on a Saturday night — not an hour at which the mere presence of someone up and about in the hotel may fairly arouse suspicion.

      . Metropolitan Police Department General Order No. 304-10, effective July 1, 1973, prescribes procedures for “police-citizen contacts, stops, frisks, and motor vehicle spot checks.” The directive defines a “contact” as “face-to-face communication with an individual under circumstances in which the individual is free to leave,” and a “stop” as a “temporary detention of a person for the purpose of determining whether prohable cause exists to arrest.” This directive is an illustration of the kind of police practice which may become relevant on remand, when the District Court may inquire whether similar guidelines were in effect at the time the police officers encountered Mr. Coates.

      . “As a society, we routinely expect police officers to risk their lives in apprehending dangerous people. We should not bicker if in bringing potentially dangerous situations under control they issue commands and take precautions which reasonable men are warranted in taking.” Bailey v. United States, 128 U.S.App.D.C. 354, 364, 389 F.2d 305, 315 (1967) (Leventhal, J., concurring).