Private Diplomacy and Public Business: Public Supervision of the Communications Satellite Corporation

The Communications Satellite Act of 19621 authorizes the creation of the Communications Satellite Corporation (Comsat) and vests it with responsibility for developing a program for global satellite communications. Comsat is a private business organized for profit2 and is financed entirely by commercial loans and the sale of capital stock.3 The corporation receives no federal grants and cannot invoke the authority of the United States in support of its actions. The decision to use a wholly private corporation as the instrument for satellite system development was in keeping with the tradition of relying on the private sector for telecommunications facilities.5 The overall aim of the 1962 Act, however, was not solely to promote commercial opportunities. The Act also declares that the satellite system shall be responsive "to public needs and . . . contribute to world peace and understanding."' Accordingly, the Act involves the Federal Communications Commission (FCC) and the executive branch in the public supervision of Comsat. 7

The executive branch currently exercises supervisory authority over Comsat's international activities in three principal ways: (1) negotiation with foreign governments of international agreements regarding satellite systems; (2) participation in the INTELSAT Assembly of Parties; and (3) instruction of Comsat on the positions it should take concerning matters coming before the INTELSAT Board of Governors.
The Department of State's role in the negotiation of the interim and definitive INTELSAT agreements illustrates the Executive's exercise of supervisory authority through negotiation of international agreements.Initial negotiations regarding the establishment of a global communications satellite system were handled by the State Department and resulted, in 1964, in the signing of executive agreements that created an interim INTELSAT consortium.The INTELSAT consortium was governed by an intergovernmental agreement formally associating nations in their sovereign capacity." °Comsat was named manager in the design, development, construction, operation, and maintenance of the space segment." 1 Ownership in the system and voting power in the governing body, the Interim Communications Satellite Committee (ICSC), were based on traffic forecasts for 1968.12Comsat received an initial investment quota and vote of sixty-one percent, 13  See text and notes at notes 162-167 infra.o INTELSAT Interim Agreement, supra note 8, Art.XII(a), (b), [1964] 15 U.S.T. 1705, 1717-18, T.I.A.S. No. 5646, 514 U.N.T.S. 25, 40.Sovereign authorities did not at first participate directly in the management of the interim organization; instead, communications agencies, rather than their sponsoring governments, were responsible for the obligations of membership.Id.Art.11, [1964115   VIA SATELLITE 138 (1976).
entities representing all the European nations." The interim consortium agreement expressly provided that definitive arrangements for the governance of the satellite system would be considered by 1969.' In the meantime, it became increasingly evident that the consortium structure inadequately represented the variety of interests within INTELSAT," and in 1969 a plenipotentiary conference was convened in Washington to determine the future governance of INTELSAT systems. 17The State Department again handie&dthe negotiations on behalf of the United States.After two years of negotiations, a new agreement was reached." In general, the definitive agreement was designed to prevent any single interest or group of nations from exercising dominant influence over INTELSAT affairs. 9The institutional arrangements replaced the ICSC with a Board of Governors, °2 which was given responsibility for handling the business of the organization. 2' The Board is composed of telecommunications agency representatives whose vote is weighted according to relative investment. 2 1 Voting rights on the Board are not fully correlated with investment participation, however, as had been the case in the ICSC; rather, a forty percent ceiling was placed on Comsat's voting power. 23Furthermore, because Comsat's management role had been so irksome to the Europeans,21 the definitive arrangements established an international administrative organ that would gradually absorb the management functions previously performed by Comsat. 2 1 In addition to forming the Board of Governors, the INTELSAT definitive agreement organized an Assembly of Parties.The Assembly's jurisdiction extends to "those aspects of INTELSAT which are primarily of interest to the Parties as sovereign States.' 2 The Assembly is composed of diplomatic representatives of all INTELSAT members, and each member is entitled to one vote. 2 7The Department of State's representation of the United States in the Assembly, which functions as a political check on the actions of the INTEL-SAT Board of Governors, constitutes the second mode of executive branch supervision of Comsat.The Assembly generally considers issues of diplomatic concern to the member states-matters such as the formal relations of the organization with states and other international organizations, the long term goals of the organization, and the applicability of various treaties to which member countries are party.2s However, because the United States has only one vote in the Assembly of Parties and the weighted voting system affords Comsat approximately one-third of the Board of Governors vote, 2 9 the Executive as a practical matter can best further its foreign policy interests by influencing the position taken by Comsat on those matters which come before the Board.Since 1966 such control has been exercised pursuant to the terms of a joint Department of State-Office of Telecommunications Policy-Federal Communications Commission memorandum entitled "Procedures for U.S. Instruction of the Communications Satellite Corporation in its Role as U.S. Representative to the Interim Communications Satellite Committee.'3° This instruction procedure is the third, and most controver-   Cir., Oct. 14, 1977).(August, 1966) sial, 3 ' of the means the Executive has employed to supervise the international affairs of the corporation.The procedure requires Comsat to advise the appropriate agencies, at least four weeks in advance, of the proposed agenda for INTELSAT Board of Governors meetings.3Each agency then reviews the agenda and advises the State Department on those matters which the agency believes require prior instructions to Comsat.Comsat is obligated under the memorandum to take no action on agenda items singled out for attention by the various agencies until it receives State Department instructions.These instructions set forth the positions that Comsat "should take on the agenda items which require United States Government instructions" 33 and are intended to be binding. 34he propriety of these three modes of executive supervision must be determined under domestic law.Indeed, the INTELSAT Definitive Agreement provides that "relations between any telecommunications entity, acting as Signatory, and the Party which designated it shall be governed by applicable domestic law." 35The next section of this comment examines the limits domestic law places on executive authority to supervise Comsat.(1970), which authorizes the President to "coordinate the activities of governmental agencies with responsibilities in the field of telecommunication," will be discussed in this part of this comment.

II. THE LIMITS OF EXEcUTiVE AuTHORITY
Finally, the President has some direct contact with Comsat's internal affairs.He has the power, subject to the approval of the Senate, to appoint three of the fifteen members of the company's board of directors.Satellite Act § 303, 47 U.S.C. § 733 (1970).However, the Attorney General concluded in 1962 that these appointees are neither government officials nor agents of the President.Op.Att'y Gen. No. 11 (1962).As directors their principal obligation is to the corporation and its shareholders, see Schwartz, Governmentally Appointed Directors in a Private Corporation-The Communications Satellite Act of 1962, 79 HARv.L.  Rav.350, 361-63 (1965)  88th Cong., 1st.Sess.49 (1963).Presidential appointment was provided for primarily to prevent domination of Comsat by the communications common carriers, principally AT&T.See Schwartz, supra, at 353; S. RaP.No. 1584, 87th Cong., 2d Sess.11, reprinted in [1962]  U.S. relationships without distinguishing commercial relationships that arise in the ordinary course of business.That the scope of Presidential authority under section 201(a)(4) may be limited, however, is suggested by the use of the term "supervision," as opposed to some more specific term such as "guidance" or "control."More important, the legislative history of the 1962 Act suggests that Congress did not view section 201(a)(4) as an all-inclusive delegation of authority to the President to regulate the dealings of the corporation in foreign commerce.Although it has been stated that "in a statute dealing with foreign affairs, a grant to the President which is expansive to the reader's eye should not be hemmed in or 'cabined, cribbed, confined' by anxious judical blinders, ' 3 9 courts have often resorted to legislative history in order to determine the scope of delegated authority even in the face of broad statutory language." Sections 201(a)(4) and 402 as eventually enacted differ significantly from the comparable provisions in the original Administration bill. 4 1The original version of section 201(a)(4) stated that the President shall "exercise general supervision over relationships of the corporation with foreign governments or entities or with international bodies" ;42 the Administration's proposed section 402 provided that Comsat "shall not enter into negotiations with any international agency, foreign government, or entity without a prior notification to the Department of State, which will conduct or supervise such negotiations," and that "all agreements and arrangements with any such agency, government, or entity shall be subject to the 1' South Puerto Rico Sugar Co. Trading Corp. v. United States, 334 F.2d 622, 632 (Ct. Cl.), cert.denied, 379 U.S. 964 (1964).
" [W]hen Congress uses far-reaching words in delegating authority to the President in the area of foreign affairs, courts must assume, unless there is a specific contrary showing elsewhere in the statute or in the legislative history, that the legislators contemplate that the President may and will make full use of that power in any manner not inconsistent with the provisions or purposes of the Act.The purpose of amending sections 201(a) (4) and 402 was apparently to redefine the role of the Executive in the regulation of Comsat.Both committees heard much testimony concerning the desirable scope of Executive authority, both from Administration witnesses and from representatives of private enterprise.In particular, the testimony was replete with reference to existing practice with respect to Executive involvement in the business affairs of the international communications carriers (principally AT&T and ITT)."This testimony established that the international carriers usually notified the State Department when they negotiated with foreign governments but that the State Department's role in the negotiations had been quite limited.A vice-president of AT&T testified that the State Department had been "helpful in one phase or the other" in the negotiation of "a few" of AT&T's international agreements, usually at the request of the corporation,  04, 531, 550, 578 (1962); Space Sciences Hearings, supra note 41, at 158-59, 165, 172, 176, 178,  190, 270, 322, 445 (1962).51 House Commerce Hearings, supra note 41, at 550. [45:419

Executive Supervision of Comsat
Department could point to only three telecommunications agreements for which it conducted the "overall" negotiations. 2Such testimony was usually elicited by committee members who were distressed by the broad grant of authority to the State Department in section 402 of the Administration bill.5 3 The evident opposition to strict State Department control over Comsat prompted disclaimers of any such intent by the bill's advocates.Conceding that the past practice of limited Executive involvement in the global affairs of the international carriers had generally worked out satisfactorily, 54 the State Department spokesman, Under Secretary of State of Political Affairs George McGhee, reassured the House Commerce Committee that the State Department's interest would be limited to "establishing the basic relationship between [a]. . .country and the international net ....We would merely be inhibiting and blocking [Comsat] in carrying out its functions if we insisted on negotiating every agreement as to rates and frequencies and all the commercial factors. 5 5Before the Senate Aeronautical and Space Sciences Committee, McGhee stated: "The State Department will in no sense be a regulatory body corresponding to that of the FCC.The State Department would . .facilitate and supervise those negotiations which involve important foreign policy relations between us and the other government Mere assurances that State would be restrained in the exercise of its authority, however, did not placate the opponents of broad State Department power over the corporation's international dealings.In the Senate Aeronautical and Space Sciences hearings Senator Cannon suggested an amendment to section 402 substantially similar to that eventually approved. 7McGhee admitted that "your language corresponds quite closely to the present relationship [between the Executive and the international carriers]," though he protested that "a new situation would be created here which would mean that our Government must get into negotiations." 58Several 11 Id. at  days later the Administration evidently decided to take a somewhat different tack and to accede to congressional pressure for a different arrangement.
Attorney General Robert Kennedy revealed the Administration's apparent change of heart in the final days of the House Commerce Committee hearings.Pressed to explain the meaning of, and the need for, the broad grant of Executive power in the Administration's proposed section 402, Kennedy conceded that the language was "stronger than it has to be." 9 The Administration, he said, did not intend the statute to deviate from the ordinary Executivecommon carrier relationship, a relationship which generally "has worked very well." 60Rather, the concern was that the Act might be construed to deprive the Executive of the authority to undertake major negotiations with foreign governments.Kennedy emphasized that the satellite corporation was qualitatively different from existing common carriers and that "a lot of this will have to take place between the governments.""The primary purpose of section 402 was to provide a channel for communications: We have to make sure that if this Corporation got into existence and wanted to make some arrangements with a country that would be against our foreign policy to make such arrangements, that the State Department was informed; the President was kept informed.
I think that was the only purpose of section 402, which I think is a necessary laudable purpose, but I think that the language can be altered, and we would be delighted to work with this committee to try to work out mutually acceptable language.
62 Section 402 was amended shortly thereafter by the Senate Aeronautical and Space Sciences Committee" and the House Interstate and Foreign Commerce Committee concurred. 4Rejecting a compromise amendment offered by FCC Chairman Newton Minow, which would have required State Department approval of Comsat's arrangements with foreign agencies to the extent such arrangements affected United States foreign policy, 5 the committees instead largely wrote into the legislation existing practice regarding Execu-5, House Commerce Hearings, supra note 41, at 578. tive branch involvement in the global business activities of the international carriers.The amended section imposed a legal requirement that Comsat notify the State Department of any business negotiations between Comsat and foreign governments or entities, and directed the State Department to advise the corporation of "relevant foreign policy considerations" with respect to such negotiations.The bills also provided that, upon the request of the Corporation, the State Department is to render "appropriate" assistance in the negotiations."The Senate Space Sciences Committee explained: "In summary, the proposed section [402] reflects the practices now followed in regard to business negotiations which communications carriers conduct with international and foreign entities." 67he committees did not intend the amendment of the proposed section 402 to change "the responsibility of the President, and through him of the Department of State, for the conduct of foreign relations.""In apparent response to the plea of Attorney General Kennedy "to recognize the interest of the Government," 9 the proposed language of section 201(a) (4) was amended to provide that the President "shall exercise such general supervision over relationships of the corporation with foreign governments as may be appropriate to assure that such relationships shall be consistent with the national interest and foreign policy of the United States. 70The report of neither committee commented on the purpose or intended effect of this revision.However, given the declared purpose of curtailing the State Department's role in the Corporation's business negotiations through the amendment of section 402 and the recognition that, in the field of foreign affairs, the President acts by and through the Department of State, 71 it cannot have been intended simply to transfer to the President the substantive authority that the Administration's bill would have reposed in the State Department.Indeed, a floor amendment offered in the House by Representative Celler that would have accomplished substantially that, by authorizing the President to "disapprove all acts or actions, both by the corporation and by departments and agencies of the Government, whenever necessary, to attain full compliance with the national policy regarding communications through space satellites," was defeated by voice vote. 7 1Considered in conjunction with the concurrent amendment to section 402, it seems clear that the purpose of the section 201(a)(4) amendment was not to grant the President plenary authority to control the corporation in its international business activity.Rather, the amendment accords legislative recognition to the Executive's traditional role in the conduct of foreign relations.In hearings before both committees Administration spokesmen emphasized that the establishment of an international communications satellite system would implicate the interests and necessarily involve the -cooperation of many sovereign countries, that the arrangements would therefore have to be negotiated on a diplomatic level between the interested governments, and that one of the principal goals of the Administration's proposed bill was to ensure that such negotiations would be conducted by the President's representative in foreign affairs, the Department of State. 3 Negotiations between gov-108 CONG.REc.7709 (1962).
13 See, e.g., House Commerce Hearings, supra note 41, at 476, 486, 584, 592; Space  Sciences Hearings, supra note 41, at 158-59, 165, 169, 171, 180, 192 Senator, in most cases the actual negotiation would be conducted by the carrier.In many instances the Department or its representatives abroad would facilitate the negotiation, would set the stage by discussions with the foreign government or entity involved, and would assist in every way possible.But the burden of the negotiation would be conduct by the carrier.
We envisage that under the proposed bill this would actually be the case, where purely commercial or technical considerations were involved or where relatively routine negotiatons were involved.But the present negotiations largely involve point-to-point or country-to-country facilities.We are speaking here of facilities which encompass large segments of the earth, and many countries, and in quite new situations.
So it would be necessary, in many cases, for the Department to break the ground by first negotiating a general agreement pursuant to which the Corporation could negotiate, or to sit with the Corporation to negotiate, to supervise, to see that the foreign policies of the United States were achieved and that the Corporation was facilitated in the accomplishment of its objectives.Space Sciences Hearings, supra note 41, at 158.
What is envisaged here is a system which, at one time, covers most of the globe, which involves novel means of communications and novel arrangements, which involves foreign policy objectives of our country with respect to developing nations and with respect to many of our allies and friends in the world.This program involves the foreign relations of the United States which are the responsibility of the President.The Department of State acts as his representative in dealing with these problems.Id. at 165.  4) is viewed as a recognition of that fact, it appears that the bill as reported out of the House Commerce and Senate Space Sciences Committees established a division between public and private responsibility for the international aspects of the corporation's functions: those aspects of a diplomatic nature, involving the relations of the United States with foreign nations, would be the affair of the President; on the other hand, those of a business nature, involving "facilities, operations and service," would be the affairs of the corporation, subject only to FCC regulation and, where appropriate, State Department advice.
The attempts to reconcile what appeared to some as the conflicting directives of sections 201(a)(4) and 402 in hearings held by the Senate Commerce Committee in April of 1962 affirm this view of the bill's division of responsibility.An FCC spokesman testified that the bill only limited the State Department's role with respect to Comsat's business negotiations, while allowing the Executive branch to determine policy in the context of diplomatic decisions: Now, under [section 201(a)(4)] there is reserved the right of the President and Department of State to do the real policy matters with respect to the use of the satellite.
There will be multilateral negotiations, with respect to frequency negotiations, . . .with respect to the technical parameters, and ... with respect to the rights of each country for the use of it.
I don't think that this [section 402] precludes the State Department from doing its legitimate function.I think it just indicates that the ordinary day-to-day business negotiations which are done now by common carriers with other governments is what this refers to. 7" Several committee members, however, felt that the role of the President was not clearly delineated in the bill. 76To this end, the Committee reported an amendment to section 201(a)(4) deleting the qualifying term "general" so that the section now authorized the exercise of "such supervision . . .as may be appropriate."The Committee report stated that the word "general" was deleted because it suggested "restriction of the President's powers and responsibilities with respect to the formation and execution of the foreign policies of the United States." 77hat this amendment was not intended to affect the compromise between public and private responsibility effectuated by the previous amendments to sections 201(a)(4) and 402 is evident from the Commerce Committee's report: Section 402 should be read with section 201(a)(4) as both are concerned with the role of the corporation in relation to U.S. foreign policy. . . .Section 402(a)(4) [sic] 7 8 . ..reaffirms the traditional responsibility of the President, and through him of the Department of State, for conducting foreign policy.Section 402, on the other hand, is concerned with the narrower problem of the corporation's business negotiations with international or foreign entities.With respect to these negotiations, the corporation is to notify the Department of State when entering into negotiations and that Department is to advise the corporation of relevant foreign policy considerations. 79e Committee's analysis suggests that the Executive branch was barred from regulating Comsat's commercial dealings with foreign agencies with respect to facilities, operations, or services.As stated by Under Secretary of State McGhee: Section 402 is limited to business negotiations, with respect to facilities, operations or services.Negotiations of this character are carried on by private firms in the normal course of business.Any agreements, however, of a character which customarily call for approval by the Executive or the Congress would, in our opinion, continue to require that approval." The amended bill passed the House on May 3, 1962,1 with only minor opposition.However, the bill ran into serious trouble on the Senate floor.Several senators picked up on the criticism voiced in the minority report of the Senate Commerce Committee that the bill delegated to a private monopoly the function of conducting American foreign policy;" 2 moreover, it was argued, the distinction between the "political" and "business" aspects of the satellite system was too elusive to be capable of application. 3These problems, among others, 8 4 threatened to inspire a filibuster. 85The bill was therefore referred to the Foreign Relations Committee for clarification. 6he Foreign Relations Committee heard testimony primarily from Administration witnesses.FCC Chairman Newton Minow, 8 7 Attorney General Robert Kennedy, 88 Secretary of State Dean Rusk," 8 and Secretary of Defense Robert McNamara'" all testified to the effect that the bill did not delegate the foreign affairs power to a private corporation.Secretary Rusk served as the principal spokesman.Although Rusk disclaimed any interest in the State Department's becoming officially involved with the technical and commercial aspects of the satellite program,' he asserted that the revision to section 201(a)(4) had restored the original effect of the Administration's proposals and that the purpose of the amendments to sections 201(a)(4) and 402 had been to tranfer to the President, in whose hands it properly belonged, the substantive authority to control the corporation's international affairs. 2 The Senate Foreign Relations Committee reported the bill favorably without amendments.In its report the Committee simply summarized "the views of the executive branch with respect to the question of the authority of the President" 3 by reproducing an exchange between Senator Sparkman and Secretary Rusk.In that See, e.g., 108 CONG.REc.15073 (Sen.Gore), 15155 (Sen.Kefauver).Three other principal objections were raised: (1) that the bill effected a "giveaway" by the government of a national asset; (2) that the corporation would be controlled by the communications carriers, particularly AT&T; and (3) that the FCC could not be expected to protect the public interest, given its past regulatory record.See 108 CONG.REC.16918-22  (1962) (Sen.Pastore).
Id.The motion to recommit the bill was passed on August 1, 1962.The Foreign Relations Committee was instructed to report the bill back within 10 days.
a Communications Satellite Act of 1962: Hearings before the Senate Comm. on Foreign Relations, 87th Cong., 2d Sess.18-19, 64, 71, 90-91 (1962)  95 and that the Executive branch would conduct any negotiations leading to an Executive agreement or a treaty.Secretary Rusk's reassurances did not satisfy the bill's opponents.On the Senate floor the opponents again advanced the claim that the bill delegated the foreign affairs power to a private corporation. 7However, the bill's proponents successfully invoked the recently-passed cloture rules, 9 " and the bill passed the Senate. 9Despite some differences between the House and Senate versions, the bill did not go to conference; instead, the Senate version was introduced directly onto the House floor.After limited debate, during which House opponents repeated the "delegation of the foreign affairs power" argument,' the bill passed the House. 1 "' President Kennedy signed the bill shortly thereafter.
The effect of the proceedings in the Senate Foreign Relations Committee upon the interpretation of the relationship between sections 201(a)(4) and 402 is unclear.On the one hand, Senator Pastore, in the final speech before the Senate vote, approved the Rusk interpretation and read a letter from the Secretary that repeated the assertion that "the authority contained in the original section 402 was transferred to section 201(a) (4). 11102 On the other hand, Rusk's assertion is plainly inconsistent with what appears to have been the intention underlying the amendments to sections 201(a)(4) and 402 early in the legislative process."°3 The distinction drawn between business and diplomatic aspects of satellite system development becomes meaningless under the Rusk interpretation because the Executive could control any Comsat foreign business activity simply by deciding that it affects some foreign policy interest." 4  Moreover, the Senate Foreign Relations Committee did not expressly adopt Rusk's interpretation of the bill-it simply purported to report the Administration's view.
To resolve this ambiguity it is useful to consider the context in which Rusk's testimony was elicited.The concern which led to the Foreign Relations "clarification" hearings was that the bill would delegate foreign policy powers to a private corporation.The minority views of Senators Morse, Long, and Gore reported in the Foreign Relations Committee Report articulate this concern. 5The senators claimed that section 402 gave the corporation the authority to determine for itself that a given negotiation was a "business negotiation"' ' 6 and thereby delegated to Comsat the power "to negotiate agreements with foreign governments on matters affecting U.S. foreign policy," including the power to handle the anticipated negotiations regarding the establishment of an international satellite system.' 07 Viewed from this perspective Rusk's assertions are less persuasive authority.The congressmen were concerned that the bill might delegate, perhaps unconstitutionally,"' the Executive power over foreign diplomacy to a private corporation.However, one need not assent to the proposition that the Executive has plenary authority to intervene in Comsat's affairs simply upon a finding that those affairs affect foreign policy in some way in order to read the statute as leaving the Executive's power to conduct foreign relations undisturbed.Matters of diplomacy-matters affecting the rights, duties, and interests of the United States as sovereign-are fundamentally different in nature from matters concerning a corporation's international business, even though such business matters may implicate foreign policy interests.This distinction, as was suggested above, 0 9 was recognized and incorporated into the bill by the House Commerce and Senate Space Sciences Committees and adopted by the Senate Commerce Committee.The proceedings before the Foreign Relations Committee cannot, consistently with that prior legislative history, be viewed as reading the distinction out of the bill.Since it is not necessary to do so in order to effectively assuage the concerns that prompted, and in fact permeated, the Foreign Relations hearings, Rusk's assertions before that Committee should be discounted.W S. REP.No. 1873, 87th Cong., 2d  It is fair to conclude that preemptive Executive authority extends only to matters of foreign relations'"-that is, that the Executive can determine that a negotiation involves a foreign policy interest such that the government will carry on the negotiation as a matter of diplomacy-and that Executive branch control over business negotiations the Executive is unwilling to raise to a diplomatic level is limited to the giving of advice under section 402.
B. Comsat, the Executive, and the FCC The role accorded the FCC in the regulation of the corporation also delimits the scope of Presidential supervisory power under section 201(a)(4).Sections 201(c)" 1 and 401112 of the Act vest in the FCC primary regulatory authority over Comsat.1 13 Section 201(c) 110 In fact, at some points this appears to be the way the Administration spokesmen read the bill: MR. CHAYES [Legal Advisor, Department of State]: I would say generally if I may in this connection that the President has constitutional authority in the field of foreign relations, and to assert the foreign policy, to define it, to assert it and to represent the Government of the United States in its foreign relations with other countries.So that when the bill says that the President shall supervise the relationship of this entity with foreign nations, entities, and international organizations, it means he shall use his constitutional authority to conduct the foreign relations of the United States to do so.Senate Foreign Relations Hearings, supra note 87, at 212.However, other statements by Administration officials are inconsistent with this interpretation.See, e.g., Senate Foreign Relations Hearings, supra note 87, at 178 (Secretary Rusk); 90-91 (Minow); 196, 212 (Chayes).Particularly troublesome is the State Department's opinion that an amendment offered by Senator Gore stating that "the corporation shall comply with the directives of the President" need not be adopted, on the ground that it was unnecessary in light of the broad language of section 201(a)(4).See id. at 433-34.Senator Gore, however, saw no such authority implicit in the statute.Id. at 212-13.Moreover, it must be remembered that it is what the congressmen thought the bill meant, not what the State Department thought, that is of primary importance, and, as argued in the text, it was not necessary to adopt some of the broad propositions asserted by State Department spokesmen in order to meet the objections of some senators, objections that threatened to impede the bill's progress.The force of State Department rejections of proposed amendments is further undercut by the Administration's anxiousness that the bill pass quickly because of impending international negotiations.See 108 CONG.REc.16924 (1962) (Sen.Pastore).Perhaps a major reason underlying State's opposition to the Gore and similar amendments was the fear that its inclusion might revive the concern that had led to the amendment to section 402, thereby further delaying passage of the bill, and the hope that the legislative history which had been "created" in the Foreign Relations hearings would serve the same end.MI 47 U.S.C. § 721(c) (1970).,,2 Id.  § 741 (1970).REv. 12, 20-22 (1967).It should be noted that FCC regulation comprehends the overall structure of the United States's international communications satellite service industry and not merely the affairs of one corporation.See Satellite Act § 201, 47 U.S.C. § 721(c) (1970).In practice, the Commission has structured the industry on the assumption that Comsat will operate principally as a wholesaler of communications-"a carrier's carrier"--with the ultimate users (except the United States government per § 201(a)(6) of the 1962 Act) procuring specifically authorizes the FCC, inter alia, to insure the technical compatibility of the satellite facilities with existing facilities,' approve the technical characteristics of the satellite system, 11 5 grant appropriate authorizations for the construction of terminal stations, ' insure that no additions to the system are made unless required by the public interest, convenience, and necessity,' 17 and require additions to the systems as may be required by the public interest, convenience, and necessity." 8The section also grants the Commission power to determine the terms and conditions for utilization of the satellite system, including commercial rates and services."'Furthermore, it gives the agency far-reaching authority over Comsat's management actions related to the corporation's financial affairs.' 2 ' The specific powers accorded the FCC in section 201(c) supplement the agency's regulatory authority under section 401.That section designates Comsat a common carrier subject to titles II and III of the Communications Act of 1934,121 to the extent that the 1934 Act requirements are consistent with those of the 1962 Act.Sections 214 and 319 of the 1934 Act require carriers to obtain Commission approval for the acquisition or construction of new lines of communications or the extension of existing lines, 2 and to secure a permit from the FCC prior to the construction of any radio facility. 12 Thus, Comsat must obtain FCC authorization before it can participate in the establishment of new lines of communication between geographic points, 2 1 undertake the construction of a ground station, or  The breadth of FCC authority to regulate the financial affairs of the corporation and the technical aspects of satellite system development cannot be easily squared with a broad view of Executive branch authority under section 201(a)(4).Recognition of Executive authority to control Comsat's foreign business activities whenever those activities affect foreign policy or the national interest would necessarily imply Executive power to dictate FCC decisions or to circumvent the FCC entirely.
So broad a reading of section 201(a) (4) would virtually neutralize the explicit restrictions on executive authority over the FCC found elsewhere in the Act.For example, section 201(a)(7) as proposed provided that the President would "insure efficient frequency use,"' ' z 7 thus perhaps implying executive authority to oversee the FCC's allocation of commercial frequencies. 2 8The Senate Commerce Committee amended this section to its present form,' 2 ' which authorizes the President only "to exercise his authority... to help attain coordinated . . .use of the electromagnetic spectrum." 13' The committee report explained: "The amendment will make clear that no new authority is granted to the President to accomplish these ends but that he will have to rely on his present authority.' 3 ' The present authority referred to was apparently the power to conduct diplomatic negotiations on international frequency questions.The committee chairman explained: "Once we decide on an international. . .level what frequencies can be used by what country, the FCC shall then determine what use shall be made of the frequencies which have been allocated to us." ' ' 32 Similarly, the one area of the Act which delineates with any 125 Id.
121 See Policy to be Followed in Future Licensing of Facilities for Overseas Communications, 30 F.C.C.2d 571 (1971)

133
Under this provision, the Secretary of State does not have the power to order Comsat to establish an overseas connection nor may he dictate the terms of the FCC's order.Rather, the FCC is empowered to define the terms and conditions of the order after a full hearing.'1 3While the Secretary of State's determination of the national interest justification for the issuance of the order will in all likelihood be conclusive, the FCC does have the responsibility, under section 214(d) of the Communications Act of 1934, to determine whether the extension of service will impair the ability of communications companies to perform their duties to the public as common carriers.sional concern that the proposed bill unnecessarily duplicated regulatory efforts' 37 and, apparently, the belief that the FCC should have primary responsibility for the regulation of the corporation. 38Although section 201(a)(3) of the Act directs the President to "coordinate the activities of governmental agencies with responsibilities in the field of telecommunication, so as to insure that there is full and effective compliance at all times with the policies set forth in this chapter,"' 3 9 this "coordination" provision cannot be read as granting the President the authority to circumvent the FCC's jurisdiction, either by dictating FCC decisions or by exerting direct control over Comsat. 4 0President Kennedy made it clear in proposing the bill that it did not alter existing relationships among agencies: "Adequate authority and responsibility is reserved for the President to insure that the policies and objectives of the act are carried out effectively.The draft legislation does not interfere with or limit the existing prerogatives of any Government agency.""'Along the same lines, FCC chairman Newton Minow testified that section 201(c)(3) does not diminish any of the FCC's regulatory powers.

42
The FCC's mandate is to decide questions arising within its jurisdiction under the statutory criteria of public interest, convenience, and necessity.Although the President's view as to what would most effectively carry out the policies of the Act will be relevant and in some instances will be determinative'-especially on questions The Senate also deleted from the original Administration bill for the 1962 Act a proposal to allow the President to designate a Government official who would have access to Comsat's files and authority to attend meetings of the corporation's board of directors.Compare S. 2814, 87th Cong., 2d Sess.§ 201(a)(8) (1962) ,, Indeed, the House rejected the amendment to section 201(a) offered by Representative Celler that would have provided the President such power.See text and note at note 72 supra.This amendment would have granted the President authority to review and approve all actions taken by Comsat and all policies adopted by government agencies, including the FCC.,12 House Commerce Hearings, supra note 41, at 429. ,, This has been the case in proceedings under § 201(a)(6) of the 1962 Act.Satellite Act § 201(a)(6), 47 U.S.C. § 721(a)(6) (1970).This section commands the President to "take all necessary steps to insure the availability and appropriate utilization of the communications satellite system for general governmental purposes except where a separate communications [45:419 having foreign policy aspects-the decision is ultimately the Commission's. 44

C. Legislative Preemption
It is nearly indisputable that the President is, under the Constitution, the "sole organ" of the United States in the conduct of foreign relations, 5 in the sense that only he may communicate or negotiate with foreign governments.The President asserts rights and assumes duties for the United States and can make some international agreements solely on his own authority.' 46As these powers are solely the President's,' 47 they cannot be exercised by a private person' or by the Congress.As noted earlier, section 201(a)(4) of the 1962 Act recognized the Executive's foreign affairs power.' The power to conduct diplomatic relations does not exhaust the executive power over foreign affairs."'There are undoubtedly many actions short of diplomatic negotiation which a President could justify through invocation of the foreign affairs power.This general foreign affairs power encompasses an inherent presidential power to take action designed to affect foreign commerce, at least in some respects.' 5 ' Recognition of the existence of the power, however, only satellite system is required."Id.The FCC has ruled that Executive branch determinations of the national interest in obtaining such service for national defense purposes will be conclusive.Authorized Entities and Authorized Users, 6 F.C.C.2d 593, 594 (1967).The implications of this decision are necessarily limited and the decision cannot be read as endorsing the notion of paramount executive authority over regulatory matters arising under the 1962 Act.

FOREIGN AFFAIRS AND THE
' See L. HENKIN, supra note 145 at 48. Treaties, of course, require Senate consent.U.S. CONST.art.II, § 2, cl.2.The permissible scope of international agreements is limited only by the requirement that their subject matter be of "international concern"-that is, "relate to the external concerns of the nation as distinguished from matters of a purely internal nature." See RESTATEMFNT (SECOND), supra note 145, § 117, comment b.
1"7 See L. HENKIN, supra note 145, at 92-94.But some international agreements may be made only with congressional authorization, see RESTATEMENT (SECOND), supra note 145, § "opens the door to analysis, 1 11 2 for the power to regulate foreign commerce is expressly committed to Congress. 153When Congress legislates comprehensively in an area pursuant to its article I foreign commerce power, that legislation preempts the field, and the President may not take any action in the area except as authorized by the legislation.' 5 4 In the two major cases involving the preemption doctrine, the Supreme Court has given it a wide scope.In the case of Little v. Barreme,'s Chief Justice Marshall held that the President did not have authority to order the seizure of a vessel sailing from a French port because Congress had enacted legislation which authorized only the seizure of vesssels bound to France.Similarly, in the Steel Seizure case"' four of the six members of the Supreme Court majority applied the preemption doctrine to hold that the executive was without authority to seize and operate steel mills in the interests of the Korean War effort. 1 57 These cases clearly indicate that the President cannot rely on "some aura of 'inherent' Presidential authority"" ' 8 to legitimate ac-(Leventhal, J., dissenting), cert.denied, 421 U.S. 1004 (1975).
,' Consumers Union of U.S., Inc. v. Kissinger, 506 F.2d 136, 142-43 (D.C.Cir.1974)  1804), and held that it was incumbent on the President to follow the procedures established by the Selective Service Act, as well as the Taft-Hartley and Defense Production Acts, in order to effect the seizure.Id. at 663-65.Justice Jackson noted that the seizure of private property was not an open field, but had been covered by three statutory policies inconsistent with the President's action.Id. at 639.Finally, Justice Burton stated that the passage of the Taft-Hartley Act meant that Congress had authorized a procedure that the President had failed to follow.Id. at 659.The other members of the majority, Justices Black and Douglas, took a broader view of congressional authority, reasoning that the power to seize property was wholly committed to the legislature.Id. at 582-90 (Black, J.); id. at 629-34 (Douglas, J.).
01 The phrase is Judge Leventhal's.Consumers Union of U.S., Inc. v. Kissinger, 506 F.2d  136, 149 (D.C.Cir.1974) (dissenting opinion), cert.denied, 421 U.S. 1004 (1975).See United States v.Western Union Tel. Co., 272 F. 311 (S.D.N.Y.), aff'd, 272 F. 893 (2d Cir.1921), rev'd on consent of the parties, 260 U. S. 754 (1922).Western Union held that in the absence of statutory authorization, the President could not impose conditions upon the landing in American territory of international cables owned by a domestic company which, like Comsat, operated under a federal franchise.The court stated: "It is not sufficient to say that he must tions taken outside a comprehensive Congressional scheme of foreign commerce regulation.The recent case of Consumers Union of U.S., Inc. v. Kissinger' 59 confirms the point.In that case the District of Columbia Circuit upheld Presidential negotiation, pursuant to his foreign affairs powers, of voluntary limits on steel imports by foreign steel producers, but based its holding, in part, on the ground that Congress had not preempted the field with respect to such voluntary agreements. 6 0The President could negotiate an enforceable agreement, the court noted, only pursuant to the procedures and under the circumstances spelled out by the Trade Expansion Act of 1962.61 The preemption doctrine is applicable to the field of international satellite communication.Acting pursuant to its power to regulate foreign commerce Congress in the 1962 Act prescribed a comprehensive structure to govern American participation in the global satellite system.It chose to create a private corporation and to rely in part on business incentives to accomplish its statutory objectives.The primary regulatory authority was vested in the FCC.Moreover, Congress recognized the essential role of the President in the conduct of foreign relations through the inclusion of section 201(a)(4).Any exercise of Presidential or Executive power not authorized by the 1962 Act should therefore be precluded.This is especially true with respect to Executive actions inconsistent with the restriction of Executive authority over Comsat's business negotiations under section 402 or in conflict with the regulatory role entrusted to the FCC by sections 201(c) and 401.

III. THE LEGALITY OF CURRENT EXECUTIVE BRANCH SUPERVISION
The foregoing discussion of the limits of Executive authority over Comsat has important implications.This section of the comment will apply that analysis to the three principal means whereby the Executive currently exercises supervisory authority.
The first means, negotiation with foreign governments of international agreements regarding satellite systems, 2 is clearly a permissible exercise of Executive authority.

1978]
negotiations leading to the interim agreement, Comsat regarded the State Department's involvement as an unwarranted intrusion into the corporation's affairs."' 3 The State Department prevailed, and the basic decisions regarding the establishment of the satellite system were resolved through diplomatic channels." 4The course of events respecting the negotiation of the interim arrangements in 1969 followed a similar pattern: Comsat wanted to maintain the interim consortium" 5 but the State Department, sensitive to foreign political pressures for a new organization, preempted Comsat and the negotiations were conducted through a plenipotentiary conference. 6' State's actions appear to be a proper exercise of Executive authority under section 201(a)(5) of the Act, which authorizes the President to insure timely arrangements for foreign participation in the satellite system;" 7 the resulting agreements, moreover, were Executive agreements binding on the United States as well as Comsat, and therefore State Department intervention was a proper exercise of Presidential supervisory authority under section 201(a)(4).
This mode of Executive supervision may also be available to prevent Comsat from pursuing certain activities within INTEL-SAT.For example, in late 1972 Comsat proposed that INTELSAT provide a maritime service capability in future systems.' 66 In response, the British suggested that although INTELSAT might provide such service under contract to third parties, the treatment of the complex questions concerning planning, financing, implementing, and operating a global maritime system might require the establishment of a new international organization.' 9 The United States acquiesced in this position and, after consulting Comsat, participated in discussions under the auspices of the United Nations Intergovernmental Maritime Consultative Organization, Comprehensive agreements were ultimately concluded establishing a new international organization, the International Maritime Satellite Organization [INMARSAT], with responsibility for maritime service., 70 The second form of Executive supervisory authority over Comsat involves its participation in the INTELSAT Assembly of Parties.Since the Assembly considers decisions of interest to sovereign states as such, 171 it seems appropriate for representatives of the State Department, rather than of Comsat, to act within this forum.The mandate of section 201(a) (4) of the 1962 Act, that the Executive branch may employ any measures appropriate to assert the sovereign interests of the nation, provides ample justification: the members of the Assembly are the sovereign nations party to the INTEL-SAT Definitive Agreement and the Assembly's jurisdiction extends only to diplomatic issues.When the Assembly acts on matters outside its authority-for example, by passing resolutions concerning INTELSAT operations-its views are not binding on the Board of Governors, which is required only to give them due consideration. 72here is serious question, however, about the third mode of supervision adopted by the Executive-the practice of instructing Comsat on the positions it should take on matters coming before the INTELSAT Board of Governors. 173One such instruction, issued in September, 1976, required Comsat to urge the Board of Governors to develop operational plans for the forthcoming INTELSAT V series of satellites. 7 4This instruction was ostensibly prompted by the concern that the proposals then before the Board failed to ensure efficient utilization of space satellite facilities. 7 5Possibly the State Department was also apprehensive that the Board would approve economically wasteful plans or plans that would so occupy the spectrum of available frequencies and orbital space that any other systems, established apart from INTELSAT, would be unable to operate efficiently.Another instruction expressed the stance Comsat should take concerning the orbital positioning of a particular satellite in the INTELSAT III series. 7 7This directive was motivated by the Department of State's desire to assure spare satellite capacity for both Indian and Pacific Ocean regions.' 77 Notwithstanding the important policy concerns underlying the instructions, it is doubtful that they have binding legal effect. 7 8Since the Executive has no inherent consitutional power to direct the international affairs of the corporation, 7 ' authority for the instruction procedure must be found in the statute.The Department of State has justified its supervision of Comsat's Board of Governors' activities in part on the ground that section 201(a) of the 1962 Act vests in the President or his delegate 18 the authority to determine the "national interest" with respect to the establishment and operation of the satellite system, and that this authority subsumes whatever public interest determinations may be within the jurisdiction of the FCC.' 8 ' This reading of the statute is flawed in two respects.
First, it ignores the primacy of the FCC in determining the demands of public interest.The responsibility for the issuance of regulatory orders pertaining to Comsat's operations is vested in the FCC.Indeed, certain of the issues raised by the instructions described above have been the subject of FCC proceedings. 1 2 As the Commission has maintained, foreign policy interests are only one component of the public interest standard under which requests for authorizations for participation in the ownership and operation of INTELSAT facilities are determined.' 3 That particular instructions of a regulatory nature have not brought the State Department into direct conflict with the FCC is beside the point; under the Act the regulatory jurisdiction is the Commission's alone.
Second, the State Department reads too much into section ,71 Interview with J.S. Hannon, General Attorney, Communications Satellite Corporation, in Washington, D.C. (September 15, 1977).
" Enforcement of the instructions presumably would be accomplished pursuant to section 403(a) of the Act, which authorizes the Attorney General to sue for equitable relief "[if] the corporation ... shall engage in or adhere to any action, practices, or policies inconsistent with the policy and purposes declared in section 701 of this title."Satellite Act § 403(a), 47 U.S.C. § 743(a) (1970).
Although the merits of a foreign policy decision may be nonjusticiable, questions of the authority of the Executive to take certain actions in the foreign relations area are certainly susceptible to judicial treatment.See Baker v. Carr, 369 U. S. 186, 211 (1962) (dictum); cf.Kent v. Dulles, 357 U.S. 116 (1958) (inquiry into Secretary of State's authority to deny passport applications).
VI With respect to the President's inherent authority over foreign affairs, the 1962 Act preempted the field.See text and notes at notes 145-161 supra.
201(a)(4).Quite apart from the character of the instructions given, implementation of the instructions procedure seems to be outside the scope of the Executive's authority under section 201(a).The President's authority under section 201(a)(4) to supervise the corporation in its international dealings is significantly limited.Executive branch control over business negotiations that the Executive branch is unwilling to raise to a diplomatic level is restricted by section 402 to the giving of advice.' 84  21 It is worthwhile to note that although the United States was-originally opposed to the creation of the Assembly, its opposition was not prompted by the belief that the establishment of the Assembly of Parties separated artificially the political from the business aspects of the organization; rather, American opposition was due to apprehension that adoption of the proposal would result in the unnecessary introduction of "political" issues into an organization that was primarily concerned with "matters of the design and development of the system."See Plenipotentiary Conference on Definitive Arrangements for the International Telecommunications Satellite Consortium, Document No. Com.1161 (March 10, 1969) (statement of the United States Representative to Committee I) (on file with The University of Chicago Law Review).The U.S. Negotiator argued: [W]e do not see this organization as having a continuing series of political questions to deal with ....
[I]t is our most sincere desire that this organization provide a service which, like the scales of justice, is blind; [that] seeks to provide a service that everyone needs, free of the political considerations that are such a heavy burden on so many of our other international organizations.Id. at 2. This perception of the character of INTELSAT makes it difficult to claim that ordinary Board business requires diplomatic attention and executive supervision pursuant to section 201(a)(4).Furthermore, this separation of the "political" from the "business" aspects of INTELSAT's functions is carried out in practice.When the Assembly made the political determination to admit the Peoples' Republic of China (Peking) and expel the Republic of China (Taipei), for example, the Board of Governors' sole responsibility was to work out the financial adjustments incident to the latter's departure.See INTELSAT Assembly of Parties, Record of Decisions, AP-2-3E (1976).
technical and operational matters arising in the course .ofComsat's activity within INTELSAT, the international organization established in 1964 to own and operate the global satellite system. 8I. CURRENT EXECUTIVE BRANCH SUPERVISION OF COMSAT'S INTERNATIONAL ACTIVITIES nearly twice the voting power of the I INTELSAT is the acronym for the International Telecommunications Satellite Organi- zation.The Organization was established by agreements for the International Telecommunications Satellite Organization (INTELSAT), entered into force Feb. 12, 1973, [hereinafter cited as INTELSAT Definitive Agreement] [1972] 23 U.S.T. 3813, T.I.A.S. No. 7532, -U.N.T.S. _.These agreements supersede the agreements for an interim INTELSAT Consortium, Communications Satellite System, entered into force August 20, 1964, [hereinafter cited as INTELSAT Interim Agreement] [1964] 15 U.S.T. 1705, T.I.A.S. No. 5646, 514 U.N.T.S. 25.
definitive arrangements, Comsat would perform management functions under contract to INTELSAT.See INTELSAT Definitive Argeement, supra note 8, Art.XII(e), [1972] 23 U.S.T. at 3849, T.I.A.S. No. 7532, -See id., Art.VII(a), (b), (f), [1972] 23 U.S.T. 3824-25, 3827, T.I.A.S. No. 7532, -U.N.T.S. _.Other universal membership bodies in which each member had a single vote were also established.A meeting of Signatories was established to deal with matters of the budgetary requirements of the organization and the operational characteristics of the system.

62
Id. at 580.See text and notes at notes 43-44 supra.See text and notes at notes 45-49 supra." Space Sciences Hearings, supra note 41, at 471.
[45:419 Executive Supervision of Comsat ernments, which would, for example, establish "the basic relationship between [a] . . .country and the international net," have traditionally been the responsibility of the President.When section 201(a) (

" 3
See generally Throop, Some Legal Aspects of Satellite Communication, 17 AM.U.L.

56 F.C.C.2d 1101, 1156-57 (1975) remanded
Comsat officials have refused to acknowledge that the instructions are binding, referring to them instead as providing mere "guidance."SeeLetterfromJamesMcCormack, Chairman, Communications Satellite Corporation, to Frank E. Loy, Department of State (Aug.27,1966),reprinted in Government Use of Satellite Communications, Hearings before a Subcomm. of the House Comm.onGovernmentOperations,89thCong., 2d Sess., 406 (1966) [hereinafter cited as Government Use Hearings].The State Department has claimed that the instruction procedure does not interfere with Comsat's corporate responsibilities, see Letter from Frank E. Loy to James J. McCornack (Aug.18,1966),reprinted in Government Use Hearings, supra, at 406, but the corporation feels that State Department instructions do interfere.SeeIn re Communications Satellite Corp., , No. 75-2193 (D.C.Cir.,Oct.14, 1977).The FCC and Department of State have also had disagreements over their respective authorities under the 1962 Act.See CoMPTRoLLER GENERAL'S REPor, supra note 30, at 54. entities. 36ction 402 appears to limit the role of the State Department in Comsat's business negotiations concerning "facilities, operations, and services" to "advi[sing] the corporation of relevant foreign policy considerations.' 7ection 201(a) (4), on the other hand, provides that the President shall "exercise such supervision over relationships of the corporation with foreign governments or entities or international bodies as may be appropriate to assure that such relationships shall be consistent with the national interest and foreign policy of the United States, '38 and thus appears to grant the President plenary authority to supervise Comsat's international the determination of the Secretary of State that communication should be established to a particular foreign point, the FCC shall institute proceedings under 214(d) of the Communica- -1 22 CoMPTRoLLER GENERAL'S REPORT, supra note 30, at 79. foreign the 1962 Act further delineate aspects of the Executive/Comsat relationship.Section 201(a) (5) is particularly important in the area of Comsat's relationships with foreign governments.It provides that the President shall "insure that timely arrangements are made under which there can be foreign participation in the establishment and use of a communications satellite system."SatelliteAct§201(a)(5),47U.S.C. § 721(a)(5)(1970).Because there is little or no tension between the grant of this authority and the restriction of the State Department's role in Comsat's business negotiations in section 402 of the Act, see text and notes at notes 102-110 infra, section 201(a)(5) will not be discussed further in this section of the comment.Satellite Act § 201(c)(3), 47 U.S.C. § 721(c)(3)(1970), which provides that upon . Comsat's articles of incorporation provide that all classes of directors have the same fiduciary duty.Articles of Incorporation of Communications Satellite Corp., Art.VIII, § 8.04, reprinted in Nominations of the Incorporators of the Communication Satellite Corporation, Hearings before the Senate Comm. on Aeronautical and Space Sciences, it shall notify the Department of State of the negotiations, and the Department of State shall advise the corporation of relevant foreign policy considerations.Throughout such negotiations the corporation shall keep the Department of State informed with respect to such considerations.The corporation may request the Department of State to assist in the negotiations, and that Department shall render such assistance as may be appropriate.38 Id., § 201, 47 U.S.C. § 721(a)(4).
. Remarks of Under Secretary of State McGhee in the Senate Space Sciences Hearings are representative: SENATOR ANDERSON.. What part does the State Department now play in negotiations made by present communications carriers with foreign countries?MR.McGHEE.
. [hereinafter cited as Senate Foreign Relations Hearings.]Id. at 34. Rusk indicated that the President would have authority to decide what negotiations the government would conduct and what negotiations concern business matters within the meaning of section 402,1 4 that the President would conduct important negotiations with foreign governments, Id. at 178-80, 209-11.Id.at298."Id. at 174.Id. at 175, 176, 178-79, 210-11.S. REP.No.1873, 87th Cong., 2d Sess.2, reprinted in [1962] U.S. CODE CONG.&AD.NEWS 2318, 2319.exchange in the construction of an INTELSAT facility.'1Indetermining whether an authorization is in the public interest the FCC considers factors beyond those peculiar to satellite services.The Commission's policy is to license future facilities only after consideration of the proper mix of satellite and conventional facilities.'26 ). in Id. § 214.i Id. § 319.22 See CoMPTRoLLER GENERAL's REPORT, supra note 30, at 10. participate
In Mazurie the Court acknowledged the principle that Congress may not delegate the legislative power to nongovernmental agencies.It held that a delegation of the authority of Congress to govern the Indian tribes, U.S. CONST., art.I, § 8(d)(3), to a tribal council was permissible only because the council possessed "attributes of sovereignty.""5See text and notes at notes 73-79 supra.

.S. 579 (1952). ,01 The
four justices were Frankfurter, Clark, Jackson, and Burton.Justice Frankfurter left open the question whether the President's actions would be proper in the absence of legislation bearing upon the asserted presidential authority.He concluded that the enactments of the Taft-Hartley Act and the Defense Production Act of 1950 were intended to deny such authority.Id. at 597-614.Justice Clark's opinion rested squarely on Little v. Barreme, 6 U.S. (2 Cranch) 170 ( Comsat and the State Department, however, have differed over what role each should play in the negotiation of INTELSAT agreements.During the initial have this authority.., because the United States is a sovereign nation and must be deemed to have all customary national powers."272F.at 313. 506 F.2d 136 (D.C.Cir.1974),cert.denied,421U.S. 1004 (1975).11Id.at 143. I"Id.112See text and notes at notes 9-17 supra.
It is arguable that the INTEL-SAT agreements, by making separate provision for the Assembly of Parties, effect a clear functional separation of political and business matters within INTELSAT, and therefore that Comsat's activities on the Board of Governors constitute business negotiations within the meaning of section 402 of the 1962 Act. 8 5Indeed, the matters committed to the Board under the INTELSAT agreements are matters of management policy with regard to INTELSAT's operations, facilities, and services, 181-the very matters specified in section 402 respecting which the State Department can only advise Comsat.Although it could perhaps be argued that Comsat's activities on the INTELSAT Board of Governors are not the type of "business negotiations" which section 402 concerns, and do not involve the kind of matters the Executive could or would negotiate over at a diplomatic level, such an argument proves too much.The legislative 11 See text and notes at notes 109-110 supra.