Delaware, Lackawanna and Western R. Co., Petitioner, v. Federal Communications Commission et al., Respondents, 272 F.2d 706 (2d Cir. 1959)

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US Court of Appeals for the Second Circuit - 272 F.2d 706 (2d Cir. 1959) Argued November 2, 1959
Decided December 7, 1959

Harold J. Gilmartin, New York City, for petitioner.

Robert A. Bicks, Acting Asst. Atty. Gen., Richard A. Solomon, Atty., Dept. of Justice; John L. Fitzgerald, General Counsel; Max D. Paglin, Asst. General Counsel; Jerry M. Hamovit, Attorney, Federal Communications Commission, Washington, D. C., for respondents.

Before CLARK, Chief Judge, and HINCKS and WATERMAN, Circuit Judges.


This is a petition for review of an order of the Federal Communications Commission denying petitioner's application for a general exemption under 47 U.S.C. § 383 from the provisions of 47 U.S.C.A. § 381, requiring radio-telephone installations on certain passenger vessels that are navigated in the open sea or on tidewater adjacent or contiguous to the open sea. Petitioner's vessels, ferry boats, are vessels within the scope of the statute, and are operated on the Hudson River between Hoboken, New Jersey and lower Manhattan. First, we take judicial notice that the area where these ferries operate is "adjacent or contiguous to the open sea." Cf. Delaware, Lackawanna & Western R. Co. v. Koske, 1929, 279 U.S. 7, 12, 49 S. Ct. 202, 73 L. Ed. 578. Second, we hold that the "conditions or circumstances" under which these ferries operate are not "such as to render a radio installation unreasonable, unnecessary, or ineffective" under 47 U.S.C. A. § 383.