Mr. Justice HARLAN, concurring in part and dissenting in part.
The Court has properly deemed it necessary to question sua sponte the jurisdiction of the Court of Appeals to entertain this case, but I am unable to agree with its decision that such jurisdiction existed. In my view, Storer was not a 'party aggrieved by a final order' of the Commission, within the meaning of 5 U.S.C. § 1034, 5 U.S.C.A. § 1034, and hence was not entitled to invoke the jurisdiction of the Court of Appeals. Accordingly, I would vacate the judgment below and remand the case to the Court of Appeals with directions to dismiss the petition for lack of jurisdiction.
1. These regulations do not, in my view, constitute an 'order' within the meaning of § 1034. They simply establish certain standards to be followed by the Commission in the future exercise of its licensing powers; they do not require any licensee to do or to refrain from doing anything, attach no consequences to his action or inaction, and determine no questions as to his legal status. As such they are quite unlike the Chain Broadcasting regulations which were held to be a reviewable 'order' in Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563, in a proceeding comparable to this one. Those regulations were held reviewable, not because every Commission action in the form of a regulation was considered to be an 'order,' but for the specific reason that they proscribed certain kinds of contracts between licensees and the national networks and, by prescribing the sanction of license cancellation for noncompliance, operated to coerce action by the licensees and to determine the legal status of the networks' contracts. Of their own force and with no further administrative action being taken, the regulations induced licensees to cancel existing network contracts and deterred them from entering into new ones. That coercive effect of the regulations on present conduct, the very characteristic which led the Court to regard the Chain Broadcasting regulations as an 'order' despite their form, is totally lacking here.
2. A second obstacle to review of the regulations here is that, even if they be deemed an 'order,' Storer has not shown that it is 'aggrieved' by them.
In assessing the character of Storer's grievance, we must put aside the Commission's order, made simultaneously with its promulgation of the challenged regulations, which denied a pending application by Storer for a sixth television license. That order was reviewable only by a direct appeal within 30 days under 47 U.S.C. § 402(b), (c), 47 U.S.C.A. § 402(b), (c), Federal Communications Commission v. Columbia Broadcasting System, 311 U.S. 132, 61 S.Ct. 152, 85 L.Ed. 87, and became final and conclusive upon Storer's failure to appeal from it. Since that order cannot be reviewed, and no relief from it may be granted in this proceeding, it is only of the prospective effect of the regulations, not their past application, that Storer may complain. And it is by that effect that Storer must show it is 'aggrieved.'
In its petition for review, Storer alleged that it was aggrieved by the regulations in that:
'(a) Storer is denied the right of a full and fair hearing to determine whether its ownership of an interest in more than seven (7) standard radio and five (5) television broadcast stations, in light of and upon a showing of all material circumstances, will thereby serve the public interest, convenience and necessity.
'(b) The acquisition of Storer's voting stock by the public under circumstances beyond the control of Storer, may and could be violative of the Multiple Ownership rules, as amended, and result in a forfeiture of licenses now held by Storer, with resultant loss and injury to Storer and to all other Storer stockholders.'
However these allegations are read, they assert no more than that the Commission may in the future take action pursuant to the regulations to deny or revoke a license. Of course, if such action should ever be taken, Storer would then be 'aggrieved.' But by the same token it would then have a complete remedy through a direct appeal from such action under § 402(b). Until such time as the regulations are applied to it, however, Storer will not have been 'aggrieved' and hence will not be entitled to review. Indeed, in this case we do not even reach often difficult problem whether an alleged injury is sufficient or of such a nature as to entitle the complaining party to review; here we have that rare case in which no present injury of any kind is even alleged.