Ralph Ilowite v. United States of America and the Federal Communications Commission

390 F.2d 589 Ralph ILOWITE, Petitioner, v. UNITED STATES of America and the Federal Communications Commission, Respondents. No. 16527. United States Court of Appeals Third Circuit. Argued January 8, 1968. Decided March 5, 1968. Victor Rabinowitz, Rabinowitz & Boudin, New York City (Leonard B. Boudin, New York City, on the brief), for petitioner. Lenore Ehrig, Appeals and Research Section, Internal Security Division, U. S. Dept. of Justice, Washington, D. C. (J. Walter Yeagley, Asst. Atty. Gen., Kevin T. Maroney, Atty., Dept. of Justice, Washington, D. C., Henry Geller, Gen. Counsel, John H. Conlin, Assoc. Gen. Counsel, Federal Communications Commission, Washington, D. C., on the brief), for respondents. Before McLAUGHLIN, FREEDMAN and SEITZ, Circuit Judges. OPINION OF THE COURT PER CURIAM. — 1 — The Federal Communications Commission dismissed without prejudice petitioner's applications for amateur and citizen's radio licenses because he refused to answer the Commission's inquiry as to whether he was or had ever been a member of the Communist Party or of any organization or group which advocates or teaches the overthrow of the Government of the United States, or of any political subdivision thereof, by force or violence. The questions were based on Sections 303(l), 308(b) and 309(a) of the Communications Act of 1934, as amended (47 U.S.C. §§ 303(l), 308(b), 309(a)). See also Section 1.961(b) of the Commission's Rules, 47 C.F.R. 1.961 (b). The Commission's questions were entirely proper. Borrow v. F. C. C., 109 U.S.App.D.C. 224, 285 F.2d 666 (1960), cert. den. 364 U.S. 892, 81 S.Ct. 223, 5 L.Ed.2d 188 (1960); Cronan v. F. C. C., 109 U.S.App.D.C. 208, 285 F.2d 288 (1960), cert. den. 366 U.S. 904, 81 S.Ct. 1046, 6 L.Ed.2d 203 (1961); Blumenthal v. F. C. C., 115 U.S.App.D.C. 305, 318 F. 2d 276 (1963). — 2 — The order of the Commission will be affirmed. — 3 — FREEDMAN, Circuit Judge (concurring). — 4 — I concur in the affirmance of the order of the Commission. The dissent by Judge Washington in Borrow v. Federal Communications Commission, 109 U.S. App.D.C. 224, 285 F.2d 666 (1960), cert. denied, 364 U.S. 892, 81 S.Ct. 223, 5 L.Ed. 188, is a powerful one, but until the Supreme Court indicates that the majority opinion in that case which has since been followed consistently in the District of Columbia Circuit is erroneous, I believe that our Circuit should follow it. — 5 — SEITZ, Circuit Judge (dissenting). — 6 — I would reverse for the reasons given in Judge Washington's dissenting opinion in Borrow v. F. C. C., 109 U.S.App.D.C. 224, 285 F.2d 666 (1960), cert. denied 364 U.S. 892, 81 S.Ct. 223, 5 L.Ed. 188; and compare Schneider v. Smith, 390 U.S. 17, 88 S.Ct. 682, 19 L.Ed.2d 799 (1968).