ASHBACKER RADIO CORP. v. FEDERAL COMMUNICATIONS COMMISSION
No. 65
Supreme Court of the United States
Argued November 13, 1945. Decided December 3, 1945.
326 U.S. 327
Mr. Ralph F. Fuchs, with whom Solicitor General McGrath, Messrs. Rosel H. Hyde, Harry M. Plotkin, Max Goldman and Joseph M. Kittner were on the brief, for respondent.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The primary question in this case is whether an applicant for a construction permit under the Federal Com
In March 1944 the Fetzer Broadcasting Company filed with the Commission an application for authority to construct a new broadcasting station at Grand Rapids, Michigan, to operate on 1230 kc with 250 watts power, unlimited time. In May 1944, before the Fetzer application had been acted upon, petitioner filed an application for authority to change the operating frequency of its station WKBZ of Muskegon, Michigan, from 1490 kc with 250 watts power, unlimited time, to 1230 kc. The Commission, after stating that the simultaneous operation on 1230 kc at Grand Rapids and Muskegon “would result in intolerable interference to both applicants,” declared that the two applications were “actually exclusive.” The Commission, upon an examination of the Fetzer application and supporting data, granted it in June 1944 without a hearing. On the same day the Commission designated petitioner‘s application for hearing. Petitioner thereupon filed a petition for hearing, rehearing and other relief directed against the grant of the Fetzer application. The Commission denied this petition, stating,
“The Commission has not denied petitioner‘s application. It has designated the application for hearing as required by Section 309 (a) of the Act. At this hearing, petitioner will have ample opportunity to show that its operation as proposed will better serve the public interest than will the grant of the Fetzer application as authorized June 27, 1944. Such grant does not preclude the Commis
sion, at a later date from taking any action which it may find will serve the public interest. In re: Berks Broadcasting Company (WEEU), Reading, Pennsylvania, 8 FCC 427 (1941); In re: The Evening News Association (WWJ), Detroit, Michigan, 8 FCC 552 (1941); In re: Merced Broadcasting Company (KYOS), Merced, California, 9 FCC 118, 120 (1942).”
Petitioner filed a notice of appeal from the grant of the Fetzer construction permit in the Court of Appeals for the District of Columbia, asserting that it was a “person aggrieved or whose interests are adversely affected” by the action of the Commission within the meaning of
Our chief problem is to reconcile two provisions of
The Commission in its notice of hearing on petitioner‘s application stated that the application “will nоt be granted by the Commission unless the issues listed above are determined in favor of the applicant on the basis of a record duly and properly made by means of a formal hearing.” One of the issues listed was the determination of “the extent of any interference which would result from the simultaneous operation” of petitioner‘s proposed station and Fetzer‘s station. Since the Commission itself stated
The Fetzer application was not conditionally granted pending consideration of petitioner‘s application. Indeed a stay of it pending the outcome of this litigation was denied. Of course the Fetzer license, like any other license granted by the Commission, was subject to certain conditions which the Act imposes as a matter of law. We fully recognize that the Commission, as it said, is not precluded “at a later date from taking any action which it may find will serve the public interest.” No licensee obtains any vested interest in any frequency.6 The Commission for
It is suggested that the Commission, by granting the Fetzer application first, concluded that the public interest would be furthered by making Fetzer‘s service available at the earliest possible date. If so, that conclusion is only an inference from what the Commission did. There is no suggestion, let alone a finding, by the Commission that the demands of the public interest were so urgent as to preclude the delay which would be occasioned by a hearing.
The public, not some private, interest, convenience, or necessity governs the issuance of licenses under the Act. But we are not concerned here with the merits.8 This involves only a matter of procеdure. Congress has granted applicants a right to a hearing on their applications for station licenses.9 Whether that is wise policy or whether the procedure adopted by the Commission in this case is preferable is not for us to decide. We only hold that where two bona fide applications are mutually exclusive the grant of one without a hearing to both deprives the loser of the opportunity which Congress chose to give him.
In Federal Communications Commission v. Sanders Radio Station, 309 U. S. 470, 476-477, we held that a rival station which would suffer economic injury by the grant
Reversed.
MR. JUSTICE BLACK and MR. JUSTICE JACKSON took no part in the consideration or decision of this case.
MR. JUSTICE FRANKFURTER, dissenting.
The extent to which administrative agencies are to be entrusted with the enforcement of federal legislation is
The disposition of the present case seems to me to disregard these controlling considerations, if the Court now holds, as I understand it so to do, that whenever conflicting applications are made for a radio license the Communications Commission must hear all the applications together.
In the regulation of broadcasting, Congress moved outside the framework of protected property rights. See Commission v. Sanders Radio Station, 309 U. S. 470. Congress could have retained for itself the granting or denial of the use of the air for broadcasting purposes, and it could have granted individual licenses by individual enactments as in the past it gave river and harbor rights to individuals. Instead of making such a crude use of its Constitutional powers, Congress, by the Communications Act of 1934,
To come to the immediate issue, what has the Commission done that is here challenged and what authority from Congress does it avouch for what it has done?
The Commission had before it at least two applications for the use of the same radio wave length in the Western Michigan area (Muskegon-Grand Rapids)—that of the petitioner and Fetzer‘s. The problem before the Commission was the procedure appropriate in acting upon these two applications. Congress has authorized the Commission to grant an application without resort to a public hearing,
But it is suggеsted that the right to a hearing upon denial of an application is not satisfied by a hearing bound to be barren. In order to appreciate the function of a hearing under the statute in a situation like that before us, however, it is vital to remember that the two applications of petitioner‘s and Fetzer‘s are very different from an ordinary litigation between Fetzer and petitioner in a court of law. Each of them was before the Commission as the reprеsentative of the public interest, the ascertainment of which is the expert function of the Communications Commission. It bears repeating that the application of both presumably received careful scrutiny by the Commission before action was taken. Administrative practice indicates that where there are conflicting applications, the Commission has granted some without hearing where it thought the public interest best served by that procedure, while sеtting others for hearing where the pub
In this case, however, the restrictions of the hearing granted to Ashbacker do make of it a mere formality, for the Commission put upon Ashbacker the burden of establishing that the grant of a license to it would not interfere with the simultaneous operations of the proposed Fetzer station. But since the Commission had apparently already concluded that the simultaneous operation of the two stations would result in “intolerable interferеnce,” its order for a hearing seems to foreclose the opportunity that should still be open to Ashbacker. It is entitled to show the superiority of its claim over that of Fetzer, even though the Commission, on the basis of its administrative inquiry, was entitled to grant Fetzer the license in the qualified way in which the statute authorized, and the Commission made, the grant. In my view, therefore, the proper disposition of the case is to return it to the Commission with direction that it modify its order so as to assure an appropriate hearing of the Ashbacker application. It may be wise policy to require that the Communications Commission should give a public hearing for all multiple applications before granting any. But to my reading of the Communications Act, Congress has not expressed this policy.
MR. JUSTICE RUTLEDGE joins in this opinion.
Notes
| Fiscal Year | Total No. of Applications Considered | Conflicting Applications | ||
|---|---|---|---|---|
| Number | No. Granted Without Hearing | No. Granted After Hearing | ||
| 1941 | 159 | 49 | 14 | 2 |
| 1942 | 142 | 52 | 1 | 2 |
| 1943 | 23 | 5 | 0 | 1 |
| 1944 | 39 | 14 | 2 | 1 |
| 1945 | 114 | 69 | 5 | 8 |
“An appeal may be taken, in the manner hereinafter provided, from decisions of the Commission to the United States Court of Appeals for the District of Columbia in any of the following cases:
. . . . .
“(2) By any other person aggrieved or whose interests are adversely affected by any decision of the Commission granting or refusing any such application.” Sec. 312 (b): “Any station license hereafter granted under the provisions of this Act or the construction permit required hereby and hereafter issued, may be modified by the Commission either for a limited time or for the duration of the term thereof, if in the judgment of the Commission such action will promote the public interest, convenience, and necessity, or the provisions of this Act or of any treaty ratified by the United States will be more fully complied with . . .” Cf. 47 Code Fed. Reg. § 1.402.
“If upon examination of any application for a station license or for the renewal or modification of a station license the Commission shall determine that public interest, convenience, or necessity would be served by the granting thereof, it shall аuthorize the issuance, renewal, or modification thereof in accordance with said finding. In the event the Commission upon examination of any such application does not reach such decision with respect thereto, it shall notify the applicant thereof, shall fix and give notice of a time and place for hearing thereon, and shall afford such applicant an opportunity to be heard under such rules and regulations as it may prescribe.”
“In fixing dates for hearings the Commission will, so far as practicable, endeavor to fix the same date for separate hearings (a) on all related matters which involve the same applicant, or arise out of the same complaint or cause; and (b) for separate hearings on аll applications which by reason of the privileges, terms, or conditions requested present conflicting claims of the same nature.”
And by § 1.194, 47 Code Fed. Reg. Cum. Supp. it is provided:
“The Commission, upon motion, or upon its own motion, will, where such action will best conduce to the proper dispatch of business and to the ends of justice, consolidate for hearing (a) any cases which involve the same applicant or arise from the same complaint or cause, or (b) any applications which by reason of the privileges, terms, or conditions requested present conflicting claims of the same nature.”
For the regulations of the Commission governing such applications see 47 Code Fed. Reg. Cum. Supp. § 1.357. It was conceded on oral argument that in that proceeding petitioner would not be entitled to intervene to challenge the propriety of the grant of the construction permit to Fetzer without a hearing on petitioner‘s application.