Washington Utilities & Transportation Commission v. Federal Communications Commission

The Federal Communications Commission authorized Microwave Communications, Inc., to construct a specialized communications common carrier route between St. Louis and Chicago. Microwave Communications, Inc., 18 F.C.C.2d 953 (1969). As a result, a large number of applications were filed by others interested in providing specialized communications services in competition with the established carriers. 1 The applications raised common questions. The Commission instituted a proceeding to formulate policy and establish rules with respect to these issues. See Notice of Inquiry to Formulate Policy, Notice of Proposed Rulemaking, and Order, 24 F.C.C.2d 318 (1970). These petitions seek review of the final order issued as a result of that proceeding. First Report and Order, 29 F.C.C.2d 870 (1971). 2

The Commission’s order reflects two basic determinations. The Commission decided that “a general policy in favor of the entry of new carriers in the specialized communications field would serve the public interest, convenience, and necessity.” 29 F.C.C.2d at 920. It also decided that “it is not necessary or desirable in the public interest to hold comparative hearings for the purpose of…

(concurring):

I concur in the result reached by the majority. However, I disagree that standing for Washington Utilities & Transportation Commission (WUTC) should be based on the alternative ground of parens patriae. Not only is the parens patriae reasoning unnecessary to decide this case but application of the doctrine appears to be barred by Massachusetts v. Mellon, 262 U.S. 447 , 43 S.Ct. 597 , 67 L.Ed. 1078 (1923). There Massachusetts, acting as parens patriae, sued to prevent enforcement of the Maternity Act of 1921, alleging that it was an unconstitutional usurpation of state power. The Court stated:

Id. at 485-86, 43 S.Ct. at 600 .

The Supreme Court has relied upon Massachusetts v. Mellon to deny Florida standing to act as parens patriae in an action to enjoin collection of federal inheritance taxes in Florida. Florida v. Mellon, 273 U.S. 12, 18 , 47 S.Ct. 265 , 71 L.Ed. 511 (1927). The Court has also denied standing to the Governor of Louisiana to bring an original action on behalf of the state to enjoin the enforcement of a regulation under the Emergency Price Control Act of 1942 fixing maximum prices for strawberries. Jones ex rel. Louisiana v. Bowles, 322 U.S. 707 ,…