Complicating the matter is the fact that persons who wish to complain or otherwise challenge the practices of businesses before the regulatory agencies must carry the burden of obtaining and paying for legal services. In many cases, legal services are indispensable. For example, the issues concerning rate increases, mergers, or application approvals are complicated and if complainants are to have any hope of success, they must be adequately represented. None of the regulatory agencies currently provide free legal services 101 which be determined whether the complaint is valid and solutions usually can be achieved through correspondence. For example, if a television or radio program allows an attack on one race, it is not difficult for the FCC to check the validity of the complaint concerning the program. Ray interview, supra note 92. A staff of six, however, seems far too small even for this limited activity. This also assumes that the FCC should confine itself solely to complaint processing. Moreover, field investigations are usually necessary when employment discrimination is alleged. It is very difficult to determine if discrimination exists through the mail due in part to the sophisticated ways used to violate the law. Indeed, depending on the nature of the complaint, a thorough and time-consuming investigation may be required. But because of the lack of an adequate number of personnel, it is likely that the complaints are not properly investigated. According to the FCC's letter to the U.S. Commission on Civil Rights, the FCC has conducted field investigations involving both discrimination in employment and programing at a station in Greenville, S. C. (not the Bob Jones station). Letter from Ben F. Waple, supra note 99. 101 The ICC has the authority to provide such legal services in 49 U.S.C. 16(11) but has not implemented its authority. "The Commission may employ such attorneys as it finds necessary for proper legal aid and service of the Commission or its members in the conduct of their work, or for the proper representation of the public interest in investigations made by it or cases or proceedings pending before it, whether at the Commission's own instance or upon complaint . . . and the expenses of such employment shall be paid out of the appropriation for the Commission . . . . The Commissioners are well aware of the pressing need for some means of consumer representative. Yet they abdicate responsibility by not creating some formal procedural mechanism (in the absence of other extra-agency government action) to meet this need." Center for Study of Responsive Law Report, Surface Transportation, The Public Interest and the ICC, vol. II, 23, 24 (1970). The ICC recently refused to provide legal services for a consumer group appearing before that regulatory agency. The request stemmed from a proposed 17-percent increase in rail-freight ratio for meat shipments necessarily inhibits those who may have legitimate grievances from complaining. Clearly indigent people and consumer groups, which frequently have few financial resources, are severely restricted unless legal services are provided to them.102 A recent ruling by the Federal Trade Commission tends to point in the right direction, despite the limited scope of the decision. In the American Chinchilla Corp. case, the FTC dismissed a complaint against one of the respondents on the ground that the hearing examiner should have considered the respondent's request for free counsel because of his indigency, and that the failure to provide counsel deprived the respondent of protection of his rights.103 The FTC's decision is limited in that respondents before regulatory agencies are usually not the parties requiring free counsel. Rather, it is consumer or civil rights groups who need legal representation if they are to have any hope of success in bringing challenges. 2. AFFIRMATIVE ACTIONS The regulatory agencies are by no means limited to complaint processing as the only, or even principal, means of assuring compliance with their regulations and policies on nondiscriminatory access to services and facili from the West and Southwest to the Northeast. The ICC's rejection prevented the consumer group from becoming a full-fledged "party" to the investigation. 102 The Administrative Conference of the United States adopted in its secondary plenary session, held on Dec. 10-11, 1968, a recommendation asking all Federal agencies to engage more extensively in affirmative, self-initiated efforts to ascertain directly from the poor their views with respect to rulemaking that may affect them substantially. The recommendation urged the creation of a people's counsel which would represent the interests of the poor in all Federal administrative rulemaking substantially affecting them. 103 FTC docket No. 8774, Dec. 23, 1969. The proceeding before the FTC arose out of a complaint which named a corporation and several individuals as respondents to a charge of violating sec. 5 of the Federal Trade Commission Act (deceptive practices). It was the duty of the named respondents to answer the allegation or suffer default judgment to be entered against them. The FTC stated that where a named respondent I could not answer and defend himself due to his indigency, he was compelled to surrender his rights under a cease and desist order without due process under the law. ties. The burden of uncovering discriminatory practices properly should rest with the regulatory agencies, themselves, and, in fact, each has the power to initiate its own investigations.104 There are also a number of additional steps which the agencies could take, individually or in concert with other agencies, not only to assure against discrimination, but also to give affirmative impetus to greater minority group utilization of industry services and facilities. a. Interstate Commerce Commission, Civil Aeronautics Board and Federal Maritime All three agencies have responsibility for licensing and regulating those in the business of transportation. Of the three, however, the ICC, because of the nature of the industries it regulates, has greatest significance for minority group members. It licenses and regulates motor and rail carriers which, because their rates are inexpensive by comparison with those of air and water carriers, are the vehicles of transportation most often used by minority group travelers. Yet, the ICC has little way of knowing even the extent to which minority group members are subjected to discrimination in railroad and bus terminals and passenger services. Its last survey concerning this matter was done in the early 1960's.105 All three agencies could take a variety of actions which include independent investigations by field examiners and investigators to seek out possible violations of nondiscrimination requirements. A basic step would be to hold meetings with minority group leaders across the country to learn more about the discrimination problems that exist and thus be in an informed position to meet them. The ICC, FMC and CAB could also institute 104 49 U.S.C. 320(a) (Interstate Commerce Act); 49 U.S.C. 1377 (Federal Aviation Act); 16 U.S.C. 825 (f) (Federal Power Act); and 47 U.S.C. 220 (Communications Act). A bill is before Congress (90th Cong., S. 1720 and H.R. 8548) to amend Sec. 14 of the Natural Gas Act to enable the FPC to gather, publish, and disseminate information on all phases of the natural gas industry, similar to its power to gather, publish, and disseminate information from the electric companies. 105 Interview with Martin E. Foley, Managing Director, ICC, Dec. 23, 1969. regular and systematic meetings with representatives of the Department of Transportation to explore problems of civil rights concern other than overt discrimination-such problems as to whether railways, buses, and highway routes are planned to serve minority group populations adequately or whether they are designed principally to serve members of the majority group. Through an exchange of information, the three agencies would be in a position to determine whether new routes should be opened or whether existing routes should be expanded or curtailed.106 b. Federal Power Commission The FPC also could take a variety of actions to facilitate greater minority group utilization of the services and facilities provided by the industries it regulates. For example, the FPC could conduct surveys to determine the extent to which recreational facilities provided at licensed hydroelectric projects are being utilized by minority groups. If the surveys demonstrate a lack of use by minority group members, the FPC could examine its cause and be able to determine the kinds of actions necessary to remedy the situation. But after decades of discrimination in access to recreational facilities, more than a formal change of policy is needed to bring about significant progress. Minority group members must first be made fully aware of the fact that recreational facilities, which previously were closed to them, now are in fact open. This requires advertising, particularly in minority newspapers and on minority-oriented radio and TV stations. In areas with large Spanish-speaking populations, advertisements and signs should be in both English and Spanish. Currently, the FPC does not require 108 In addition, the three regulatory agencies could supply ideas and recommendations to the DOT. For example, the Department has major promotional programs in all fields of transportation and could cooperate with the CAB, FMC, and ICC to organize training programs for minority groups in skills which are important in the transportation area, i.e., pilots, administrators, mechanics, technicians, conductors, drivers, stewardesses, engineers. This would assist minority group individuals, lacking technical or manual skills, to enter into employment in carrier industries and eventually into the management and ownership categories. advertising in minority newspapers or radio stations.107 According to information recently supplied by FPC's chairman, the Agency staff includes a number of field examiners who regularly inspect licensed projects to assure compliance with FPC statutes, rules, and regulations and to observe the extent to which recreational facilities are used by minority group members.108 The FPC should issue guidelines to its own field examiners specifically designed to assure compliance against both continuation of overt discrimination and against the more subtle practices which prevail. The FPC examiners should determine whether recreational facilities that are formally open to all, are geographically and economically accessible, to all. For example, recreational facilities such as boating marinas generally appeal only to the affluent, whereas facilities such as fishing piers and barges, hiking trails and picnic and camping areas, appeal to all economic classes. 109 197 The FPC has issued a rule (18 C.F.R. pt. 8) stating that a licensee shall make reasonable efforts to keep the public informed of the existence of the recreational facility by requiring publication in a local newspaper once each week for 4 weeks after the facility is opened and placing a sign at the entrance of the recreational areas (pp. 284-85 supra). The FPC has not, however, issued any further orders or guidelines requiring licensees to insure themselves that minority group citizens are aware that the facilities are open on a nondiscriminatory basis. Interview with Drexel Journey, Deputy General Counsel, FPC, June 5, 1970. The FPC has the authority under 18 C.F.R. 8.1 to demand further advertising of the recreational facilities by the licensees. "Following the issuance or amendment of a license, the licensee shall make reasonable efforts to keep the public informed of the availability of project lands and waters for recreational purposes. . . . Such efforts shall include but not be limited to the publication of notice in a local newspaper once each week for four weeks...." (Italic added). Id. 108 Letter from John N. Nassikas, Chairman, supra note 88. This Commission has no information concerning the depth of the inspections referred to by Mr. Nassikas. 109 Interview with James Finch, legislative assistant to Lee White, former chairman, Nov. 19, 1969. However, Mr. Nassikas stated that the FPC "reviews recreational use plans to insure that recreation facilities are provided to meet public recreational needs without discrimination. Facilities are required to appeal to people of all classes." Letter from John N. Nassikas, Chairman, supra note 88. The FPC also could determine the extent to which minority group members are being served by utility companies it regulates. Currently, the FPC maintains no statistical data to determine the houses which are supplied with electricity. The FPC could conduct a survey itself, or require annual statistics from the electrical power companies on the number and location of residences not served. The Agency then would be in a position to determine what causes lack of service and, where appropriate, take corrective action. Little seems to be known about the relationship of rates charged to minority group members by utility companies. It has been alleged, for example, that inner-city residents, particularly the poor, are paying disproportionately high utility rates. 110 The FPC, in cooperation with local utility commissions, could determine whether this charge is true and, if so, whether the rates are justified. In any case, the Agency, after learning the facts, would be in a position to correct these inequities.111 c. Federal Communications Commission Of the five regulatory agencies under discussion in this section, the FCC possesses the greatest potential for playing a key role in resolving problems of racial unrest. In its role as the regulator of the broadcasting industry, the FCC could take a number of steps on its own and could require and persuade the industry to take additional steps to transform radio 110 Address by Judge J. Skelly Wright, to the Committee on Federal Utility and Power Law of the Federal Bar Association, Dec. 4, 1968. 11 The FPC, to date, has not been involved in these social issues. Journey interview, supra note 107. The former chairman of the FPC, Lee C. White, praised Judge Wright's speech highly. He asserted that the issues raised by the speech should be of concern to the FPC. Interview with Lee White, former chairman, FPC, Feb. 17, 1970. It should be reiterated that the FPC's jurisdiction with respect to electric rates is limited to wholesale rates and does not embrace retail or local rates. However, as the Federal agency with jurisdiction over the power industry, the FPC has a close relationship with the electrical companies. It should use its influence to make evident to the utility industries the inequities which exist. See, "A Study Made by the National Association of Regulatory Utility Commissioners, in their Eighty-first Annual Convention," Sept. 16, 1969, in connection with the Proposed Model State Commission Rules Governing Establishment of Credit for Utility Services, in which the high deposits and their effect on the poor are analyzed. and television into powerful instruments for salutary social change. For example, the Agency could examine the impact of current television and radio programing on the aspirations and self-image of minority group members, so it would be in a position to recommend changes for improvement. It could encourage broadcasting stations to serve a more comprehensive community education function than they do now. Local stations could furnish information on such subjects as availability of job training programs, procedures to be followed in obtaining food stamps, or in finding assistance for health care. The stations could also be encouraged to initiate consumer education programs to help the general public develop a knowledge of how to make purchases economically and wisely. Above all, radio and television stations could be stimulated to develop programing that would attract and appeal to all segments of the community. To an important extent, the broadcasting media help define the individual citizen's sense of belonging to the community and the programing they offer reflects his feeling of participation in community affairs. If disadvantaged and minority group families continue to be excluded from the programing concerns of the media, the stations are, in fact, failing to provide service to a substantial section of the community and are thereby violating the law. Aside from the illegality of this practice they are exacerbating problems which stem from a lack of communication among differing economic, racial, and ethnic groups and are intensifying the sense of alienation from mainstream America that racial and ethnic minorities already possess.112 As has been noted, in one case the FCC, on the complaint of a local black citizens group, 112 Report of the National Advisory Commission on Civil Disorders (Kerner Report), 201-213 (1968). One of the main criticisms stated in the Kerner Report was: "The news media have failed to analyze and report adequately on racial problems in the United States and, as a related matter, to meet the Negro's legitimate expectations in journalism. Id., at 203. This statement is also clearly applicable to other minority groups in the United States." See, Rosel H. Hyde, former FCC chairman, addresses before the National Association of Broadcasters, Apr. 2, 1968, and Mar. 26, 1969, urging broadcasters to give greater attention to the problems of minority groups. deferred action on renewing the radio and television licenses of 28 Atlanta, Ga. stations.113 Among the grounds for the complaint was the lack of programing aimed at the minority community. The FCC could take similar actions in other localities, not only on the basis of complaints, but on its own initiative. V. CURRENT AND POTENTIAL ROLE OF THE FEDERAL TRADE COMMISSION AND THE SECURITIES AND EXCHANGE COMMISSION The regulatory agencies discussed above have responsibility for licensing or regulating specific industries. The FTC and SEC do not regulate specific industries. Nonetheless, they have broad powers that cut across industry lines and each could be a significant force in promoting the cause of civil rights. A. Federal Trade Commission (FTC) The statutory responsibilities of the FTC are twofold: consumer protection and antitrust enforcement. With respect to each, the Agency's sphere of regulation is wide, extending to most businesses regardless of the type of industry. By the same token, the FTC's discretionary power to define the scope of its activities also is wide. In carrying out its consumer protection responsibilities, the statutory mandate is to prevent "unfair and deceptive practices". With respect to its antitrust activities, a principal statutory mandate is to prevent "unfair methods of competition". Neither term, however, is defined in the laws themselves. Congress, in effect, has left the FTC and the courts responsible for determining, on a case-by-case basis, what these terms 1. CONSUMER PROTECTION In the following three instances, all involving the Washington, D.C. area, the FTC used its broad powers to assume an active civil rights role. In each case, however, the steps taken proved to be only tentative and partial and the end results disappointing. a. Deceptive Advertising in Housing Advertisements On November 30, 1967, the FTC filed complaints of deceptive advertising against a number of Washington, D.C. area businessmen who failed to disclose that the land and housing they offered for sale or rent was not available to all persons regardless of race, religion, or national origin.115 On January 7, 1968, a public hearing on the charges set forth in the complaint was held before an FTC hearing examiner. On April 11, 1968, the Federal fair housing law was enacted and the course of the pending case before the FTC was changed. The hearing examiner's April 24, 1968 decision 116 granted an unopposed motion by respondents to dismiss the complaint on the ground that the issues in the proceedings were rendered moot by the enactment of the fair housing provisions of the Civil Rights Act of 1968. The examiner's position as to mootness was overruled by the full Commission. Commissioner Philip Elman, writing for the FTC, said: made by the American Bar Association Commission to study the FTC on Sept. 15, 1969, have recently been adopted by the FTC and are in various stages of implementation. Throughout this section, the significant changes made during the last few months by the FTC are noted, but no evaluation of their effectiveness has been attempted. 115 The FTC directed its staff to develop facts permitting the issuance of no less than four complaints in the District of Columbia area on the subject of deceptive advertising through failure to disclose material facts, i.e., the conditions under which the advertiser is willing to rent or sell. The investigations were conducted in the Washington, D.C. Metropolitan Area because it was thought appropriate to act first in the Federal city and because it was believed that this was the best method of attracting national attention. These investigations led to the November 30 complaints. Interview with Mary Gardiner Jones, Commissioner, FTC, Nov. 6, 1969. 116 See, First Buckingham Community, Inc., FTC Docket No. 8750 (May 20, 1968). the enactment of the Civil Rights Act of 1968 does not render lawful any acts or practices which would otherwise be deemed unlawful under the Federal Trade Commission Act. Neither in its terms nor its legislative history does the Civil Rights Act disclose an intent by Congress to repeal or modify, in whole or in part, expressly or by implication, directly or indirectly, any provision of the Federal Trade Commission Act. Congress surely could not have intended, in passing the Civil Rights Act, to grant anyone a license to engage in false and misleading advertising that violates the Federal Trade Commission Act . . . . Conduct that violates one Federal statute does not become immune because it also violates another statute . . . we reject any contention that enactment of the Civil Rights Act of 1968 constitutes a mandate by Congress to cease and desist enforcement of the Federal Trade Commission Act in the area of false and misleading advertising of housing covered by the Civil Rights Act.117 Nevertheless, the complaint was dismissed by the FTC on the ground that the respondents stated in their motion to dismiss that there was "no real possibility that the alleged restrictions as to race, color, and national origin, which the respondents allegedly failed to reveal in advertising, can be continued." 118 The FTC interpreted the respondents' statement "as a positive, unqualified affirmation that the respondents had discontinued and will not resume a policy of restricting the availability of their apartments on the basis of race, color, or national origin." 119 Therefore, it appeared to the FTC that the allegedly illegal acts and practices were effectively terminated and that an order to cease and desist would serve no useful purpose. 120 There was no followup, however, to determine whether the real estate owners were complying with their promise to discontinue all forms of discrimination.121 So ended the first attempt in FTC's history to deal with an issue directly related to civil rights. The FTC essentially decided that it |