ADMINISTRATIVE LAW - REVIEW OF ADMINISTRATIVE ORDERS - ELIMINATION OF THE "NEGATIVE" ORDER DOCTRINE

Authors

Robert J. Miller, University of Michigan Law School

Abstract

The recent decision of the Supreme Court in Rochester Telephone Corporation v. United States is of importance in determining the reviewability of administrative orders that are negative in character. In the principal case, under authority of the Federal Communications Act the Federal Communications Commission issued a general order directing that every telephone carrier file statements concerning its business and affairs. The Rochester Telephone Corporation, the petitioner, failed to file such statements, claiming it was not subject to the commission's jurisdiction because of an exemption under section 2(b) (2) of the Communications Act of 1934. This section provides that the commission shall not have jurisdiction over any carrier "engaged in interstate or foreign communication solely through physical connection with the facilities of another carrier not directly or indirectly controlling or controlled by, or under direct or indirect common control with, such carrier." Upon subsequent hearing before the commission, to show cause why the carrier had not filed the necessary reports, it was decided that the telephone company was subject to the act because under the "control" of the New York Telephone Company, for the New York Company by stock holdings exercised substantial operating control over the petitioner. The result of this decision was to decide its "status" as to the act and to subject the petitioner to the earlier general order, requiring all telephone carriers to file statements of their business and affairs. From such order the carrier sought judicial review. In granting review of the commission's order which had denied affirmative relief, the Supreme Court expressly overruled the "negative" order doctrine. It is this doctrine, its operation, and the effects of its elimination which the following comment examines.

Recommended Citation

Robert J. Miller, ADMINISTRATIVE LAW - REVIEW OF ADMINISTRATIVE ORDERS - ELIMINATION OF THE "NEGATIVE" ORDER DOCTRINE, 38 Mich. L. Rev. 682 (1940).
Available at: https://repository.law.umich.edu/mlr/vol38/iss5/5