*1 WILSON, COM I FEDERAL nc. v. B. L. COMMISSION MUNICATIONS ntervenor). (STANTON, I 9434.
No. Appeals Court of
United States District Columbia.
Reargued 12, 1947.* June April 12, 1948.
Decided * Originally Clark, argued April gerton, Prettyman, Miller and be- Wilbur K. Stephens, Justices, fore Clark and Wilbur Mil- 11- K. Associate June ler, Justices; reargued by Associate di- 1947. Stephens, rection of the court before Ed- *2 Barton, per- Jr.,
Mr. who was Robert T. curiae, urged argue mitted to amicus affirmance. *3 EDGERTON, STEPHENS,
Before CLARK, MILLER and WILBUR K. PRETTYMAN, Associate Justices. STEPHENS, Associate Justice. appeal This is an from a decision and order of the Federal Communications Com- 14, 1946, mission of November announced petition denying November of the appellant, Wilson, Inc., L. B. for recon- sideration the action 10, 1946, May granting on without hear- ing application Joseph Stan- Patrick permit ton for construction to erect broadcasting new The standard station. appeal is whether involved in the appellant or not objectionable claiming licensee inter- ference within contour its broadcasting caused station operation station, of the Stanton is en- hearing titled to a before the Commission ap- before decision on the Stanton plication. interpre- The answer involves Act, tation the Communications seq. C.A. et § appellant licensee of radio broadcasting Cincinnati, station WCKY at Pinckney Spearman, Dewey Paul Mr. license, Its authorizing operate Ohio. it to whom with Frank Roberson and Messrs. frequency kilocycles on a of 1530 with Rowell, ap- Charles Russell entered who power of 50 kilowatts unlimited time brief, pearances, appellant. were on the for station, a Class I-B channel clear was Goldman, Atty., Max Federal Com- Mr. September 25, ap- issued 1945. Stanton’s Commission, munications with whom 21, 1946, plication, January filed for was Cottone, Benedict P. Messrs. Gen. Coun- operate Philadelphia II Class station at Plotkin, Harry Counsel, M. sel, Asst. Gen. daytime only frequency, same Dobin, Atty., Kittner, and Joseph Paul M. kilocycles, but with a Atty., Federal Communications Commis- power ap- kilowatts. Stanton sion, appearances, entered who were the plication operation stated that of his brief, appellee. for objectionable station would cause George Sutton, any existing Mr. O. whom terference to station.1 The designated Messrs. H. Midlen and William Commission order the Stan- John Thomson, appearances, application entered who were in a ton consoli- brief, application proceeding on the with the intervenor. dated pursuant Engineering Allocation) 1 This statement was made Standards requirements part 3.24(b) effect the rules. Regulations 3.24(b) provides: Rules and of the Com and of the Stand “An authorization for a new standard mission Engineering (1. ards Good . will station issued Practice broadcast so, permit Allentown it filed intervene construction Broadcasting Company alleging that objectionable which was applicant same time license to extensive for a be caused would operate appli- broadcasting station if Stanton frequency kilocycles. cation granted offering, order should be specified permitted participate “To deter- interference, complete mine whether show this data on posed involved, population the area involve and the duration interference with the service exist- interference. stations, accompanied, pursuant broadcasting require- the nature and *4 interference,
extent (now 1.388) such areas ments 1.385 Section Section populations thereby, rules, by affected of the and the Commission’s affidavit availability engineer support of other broadcast to of service" of the allega- populations. areas and . . . objectionable tion of interference.3 But [and] To comparative basis, a May 10, determine on on without knowl- which, any, if applications edge appellant, of the in this of the the Commission had proceeding grant- application consolidated should be withdrawn the Stanton from ed.” published Notice granted of the docket and the same was Register May hearing; May 23, 1946, the Federal 1946 without and on (Vol. 4739). May 13, p. No. a On Commission dismis- three'days prior expiration appellant’s petition to the to intervene as sed period then, appellant within according which to the Com- moot. The on May time, might requisite mission’s rules2 the do which within the satisfactory only showing provisions 1.384(b).” after a of Section Sec- regard following, provides been among made in to the 1.385 further that “Where objec- petition (b) . others: That to intervene is based a application ... grant claim tionable will not be caused a interference - existing . to stations . would . .” cause electrical to interference provide: existing standards station . . The “A II Class . within nor- may mally protected prescribed assigned by . . . to a contour as applicable class, Regulations, the petition channel when Rules available for such provid- accompanied by therefor need is shown . . . must be an af- objectionable qualified engineer ed that fidavit of no interference radio by existing shall will be caused it to show either stations to the Com- reference » Engineering mission’s Standards of Good application form Practice or to actual submitted measurements made question: prescrib- Commission contained the “28 accordance with the methods (d) persons ed State number Commission’s areas and -Standards residing Engineering present normally pro- within Good Practice that electrical tected interference-free interference be caused contours of exist- ing ly protected objectionable station . . . other stations to which within normal- by operation contour of station.”. terference of the station caused engineering proposed your ap- stated affidavit operation plication:” response Philadelphia “the would Stanton cause objectionable “Objectionable answered: will tion.” interference interference within the 0.5 any existing ground sta- wave contour of be caused Station mv/m approximately WCKY two hours fol- lowing Philadelphia sunrise at Section 1.S85 and Section 3.9. (now approximately 1.388) preceding Section 1.385 one hour sunset Philadelphia average. provides . that when the on the Commission has . . ground designating [and] cause failed wave service area of own Station on its motion under limitations Section 1.384 WCKY would receive party any approximately '(b) existing ranging to name as a from 0.7 li mv/m who, application grant at the of sunset in censee were time Phila- mv/m delphia. ed, ap- suffer would “electrical above interference” considerations normally protected ply primary only;' within his inter- service areas contour prescribed by rules, any sky- also Commission’s ference would wave be caused person coverage “permitted participate produced by" Station proceeding by filing prior Philadelphia. WCKY to sunset in » showing that intervene he comes within denied, con- Section neither nor (now admitted did pursuant 1.387 rules, objectionable within filed stitute interference ) 1.390(a) Commission’s meaning rules rehear- petition for reconsideration and peti- hearing on the standards. Without May 1946.4 the order of reconsideration, tion for the Commission I-B clear alleged Class that as by a order to denied the same decision and appellant is entitled station the channel 14, 1946, published of November November protection from 15. In and order the Com- daytime contour decision within its 0.5 mv/m opinion mission stated that it “is of the proposed Stanton that the grant . . the Stanton objectionable inter- . [of station would cause application] does not in interference that contour result ference within petitioner’s [appellant’s] thereby station WCKY violate the Commission’s . . as defined petition alleged the Commission’s Specifically standards. Rules .Thereup- and Standards intensity that field taken measurements appeal it- on this taken. lodged self files in the Commission’s I (here *5 show that will be interference caused appel- primary Preliminarily the service area of the it is to be noted proposed Philadelphia case, lant’s station the that in cases such as the instant operation skywave applicant due for interference where an for a liJ new station approximately requests two hours after sunrise and cense granting facilities the approximately one hour before according sunset at which to the contention an Philadelphia ground objection and that the service outstanding licensee will cause area the will receive able interference the latter’s station approximately limitations ranging from 0.7 within its contour to 5 Commission, the time of sunset rules and of the standards mv/m in mv/m Philadelphia, and that will critical there two first are issues. The be any skywave caused coverage whether not such interference or will by appellant prior duced caused; second, tó in Phil- sunset be which arises con adelphia. upon tingently for reconsideration an affirmative to the answer accompanied by first, public interest, or not founded whether engineering affidavit together graph necessity (hereafter with for a convenience and showing detail public interest) the duration of referred the al- convenience leged allowance, Commission, interference. prayed require that the Commission set aside the order of such interference. Each of these issues May granting 10 hearing public the is critical as well application private, interests, desig- Stanton and that it for if as a matter application nate the law fact and make interference to party through a licensee will or au- occur station, thorize it participate only to intervene new fully Stanton, therein. a injury an- such licensee suffer so-called economic Commission, swer filed asserted but also his listening audience will be ap- deprived adequate would, interference claimed service. pellant, priori appear the existence of accordingly, import' which Stanton a 4 (now 1.390(a) ) isting grant Section 1.387 . . . and a licensee of the provides application application require “Where would the modifica ” granted hearing, any per without a been ... . . . tion his license or aggrieved “petitioner existing son or is an whose interests licensee adversely may grant application thereby affected . . fiie and a . petition for reconsideration of ac to his would cause interference normally protected twenty days . . . within after within the eontouE' given by applicable public prescribed notice is Rules an3 ” granting application.” Regulations; “grant action in or that a provides “peti public application section further granted petitioner tion will' be interest.” petitioner ex shows ...” “is
798
privilege or
mere
is more than a
Communi
vestment
ant
administration of the
broadcasting
gratuity.
A
license
cations Act
accorded
it
bring
thing
person
value to
whom
Commission calculated
conducted under
fact
is issued
a business
all relevent
items of
attention
We set
subject
injury.
on each
might
which
its decision
law
affect
private
quotations
from
margin
stated.
That
forth
deci-
two issues
recognized
Supreme
support
public
as well as
interests are
sions of the
Court
provisions
While
by the Act
is not
to be doubted.
these statements and
also
recog-
Act
station license does not under
Communications Act
itself which
prop
unlimited or
confers
broadcasting
confer an
indefeasible
nize that a
(Federal
Com
erty right
private
although
Communications
right,
limited
Station,
mission v. Sanders Bros. Radio
defeasible one.5
84 L.
U.S.
60 S.Ct.
Preliminarily
also the
terms
in time
869)
is limited
Ed.
—the
(b)
of the Communications
quality by
terms
the license
controlling judicial
'Act
construction
and a
subject
suspension,
modification
thereof
to be
noted.
section
public
or
interest —never
revocation in
reads:
license for a defi
right under a
theless the
Any
19,1934, grant-
after
station license
June
broadcasting busi
term to conduct
nite
provisions
chapter
under the
ed
permit required hereby
construction
and after
requiring
ness
does—substantial
—as
so indefinite as
power. Compare
an unlimited
to confer
Commis
Federal Communications
Co., 1940,
Broadcasting
Y.N.
Central Securi
sion v. Pottsville
States,
ties Co. v. United
309 U.S.
*6
45,
recognizes
656,
L.Ed.
re
[53
138].
at various
the Court
interpreted
quirement
by
opinion
points
to
be
of a
in its
the existence
by
context,
private right
of radio
li
the nature
trans
in
station
or interest
by
reception,
outstanding.
scope,
mission and
the
char
his license
censee while
quality
and,
services,
(referring
and
of
where
acter
to Sections
Court states
The
307(d)
adjustment
equitable
statute):
between States is
“No
301 of
and
the
advantages
any
view,
in
in
the' relative
to
was to be ‘construed
create
license
right,
enjoyed by
conditions,
the
beyond
terms,
service which will be
the
public through
distribution of facili
.periods
.
.
license.’
.
Nec
of
adjustment
making
ques
.therefore,
such an
essarily,
ties.
subordinate
tho
equities
(cid:127)
existing
ascertaining
procedure
undoubt
stations
in
of
tions
edly demand
interest,
consideration.
...”
public
when the Commission’s
supplied)
(Italics
scope
authority
licensing
invoked—the
applications
inquiry,
Communications Act
Section 301
whether
(cid:127)of
purpose
provides:
chap-
“It
contemporaneously
is the
of this
or
be heard
should
ter,
things,
among
parties
to maintain the
other
successively,
be
whether
should
all
control of the United States over
in
to intervene
one another’s
.allowed
foreign
questions
radio
interstate
proceedings,
channels
and similar
—were
transmission;
provide
implication
use
and to
explicitly
for the
left to the
ownership
channels,
long,
not
devising,
but
such
own
so
periods
thereof, by persons
require
for limited
icourse,
basic
observes the
granted by
.time,
protection
pri
Federal
designed
licenses
under
for the
ments
authority,
public
such
shall
no
license
interest.
.
well
.
vate as
beyond
any right,
highly significant
'Thus,
al
construed
create
that
conditions,
periods
broadcasting
terms,
though
sta
investment
in
(Italics supplied)
may
license.
...”
may
large, a license
not
tions
309(b)
(1) reads:
sta-
years
“The
Section
than three
for more
be issued
supplied)
shall not vest
the licensee
(Italics
(309
tion license
U.S.
. .”
any
operate
any right
station
page
nor
137, 138,
pages
60 S.Ct. at
frequencies desig-
right
in the use
656)
L.Ed.
beyond
term
the license
nated
Nelson
Radio Commission v.
In Federal
any
manner than
(Italics supplied)
Mortgage Co., 1933,
nor in
other
&
Bond
thereof
Bros.
627, 77
therein.”
266, 285,
authorized
53 S.Ct.
L.Ed.
U.S.
provides:
309(b) (2)
“Neither
grant
“In
Court said:
89 A.L.R.
right granted there-
required
nor
the license
ing
the Commission
licenses
assigned or otherwise
convenience,
public
shall be
interest or
‘as
act
chapter.”
in violation of this
necessity requires.’
transferred
criterion is not
This
supplied)
(Italics
interpreted
setting up a standard
Supreme
may
were literally changed. The
issued,
Com-
such
modified
date
dura-
or for the
mission either for a
tion of
time
limited
held,
ruling
affirming
Court
a similar
judgment
thereof,
if in the
the term
v.
(National Broadcasting
this court
Co.
promote the
Commission such action
necessity,
public interest,
convenience,
or
Commission, 1942
Federal Communications
treaty
provisions
chapter
of this
or
545),
U.S.App.D.C.
that
132 F.2d
fully
will be more
ratified
the United States
alter
this was
narrow a view—that
too
Provided, however,
complied
no
That
with:
un-
such order
shall become
modification
final
deprive
so
KOA
what
as to
per-
outstanding
or
til
license
the holder
it,
grant
assigned
had
and to
been
writing
mit shall
been
have
notified
interfer-
grounds
application
create
proposed
reasons
which would
action and
given reasonable
have been
and shall
therefor
it,
in fact
ence on the channel
was
given
why
opportunity
an order
to shoio cause
license;
modify
in substance
KOA’s
sup-
[Italics
issue.
should
of modification
plied]
312(b)
that
the Act
therefore
required
that
should be accorded
KOA
that
ruled
Supreme Court has
And the
the mod-
on the
whether
meaning of that
(within
modification
ification,
e.,
interference which would
i.
quoted) of an
as used in the section
word
result from
of the WHDH
only di-
may
outstanding license
occur
power
day-
station with
increased
change of its
rectly, by
of literal
virtue
time,
public
required by
interest.
indirectly,
through exten-
terms, but also
broadcasting
station
to another
sion
however,
noted,
It is to be
interference
cause
facilities which will
KOA case the Commission
found
had
lawfully
outstanding
within its
granted WHDH
the increased facilities
contour;
the Court
capse
against
provided
further
ruled
KOA as
clear channel
required in
quoted is
section
for in the
tected,
Supreme
Court ac-
indirect modification of
respect of such
cepted
finding.
The case therefore
respect
license as well
(in
ruling
addition to its
an outstand-
Federal
modification thereof.
of direct
indirect modifica-
suffer
National
Communications
tion)
respect
only,
decides
1943, 319
Co.,
(KOA),
Broadcasting
Inc.
(b)
that under Section
63 S.Ct.
must
accord a
*7
as the
sometimes referred
hereafter
outstanding
of
licensee on the second
case
KOA at
station
KOA case.
In
above,
e.,
the two critical
stated
i.
issues
oper-
station
was
clear channel
Denver
a
objec-
granting
on
whether,
the
issue
kilocycles
frequency
un-
a
of 850
on
ating
tionable interference will be caused the
of Boston
Station WHDH
limited time.
protected
outstanding station within its
operate daytime only on
a license to
had
contour
the extension of facilities to
applied
frequency.
It
the same
station,
public
requires
another
the
interest
power
for
an increase
Commission
allowance, by
Commission, of
the
the
such
authority
unlimited time.
operate
interference. The case leaves undecided
found that
this would
The Commission
question whether
Commission must
the
the
KOA’s broadcast
cause
outstanding
hearing
accord an
licensee a
part
the
in the eastern
of
United States
of the
critical
noted
on the first
two
issues
night
against
inter-
in the
above,
e.,
objec-
on the issue whether
time —
i.
a clear channel station
ference KOA as
protected
tionable interference within its
the rules of the Commission
li-
will be caused an outstanding
contour
therefore,
granting
request-
—and
the
censee’s
of
power
grant the
of
desiring
increase
station,
hearing
ed facilities
another
WHDH, changed
granted
the rules and
say, on the
is to
issue whether
application,
this without
WHDH
requested
facilities will or
granting
of
hearing
according
theory
KOA. The
indirect
not result in an
modification
will
Commission was that the license
license. The KOA
outstanding
of the
meaning
primary
within the
modified
leaves
not
the case thus
unanswered
312(b)
as used
instant case—whether
question
Act
in the
word
unless
terms
license
must accord
as
It
of. the Act.
modifica- administration
of indirect
would.
hearing on the issue
deny a
-Congress
unreasonable
appellant’s license
tion vel non of the
on the
hearing
licensee
applied
outstanding
to an
facilities
granting
extension
Stanton,
issue whether
e.,
whether
or not
issue
i.
the facilities
will cause ob-
operation
another station
of the Stanton
jectionable
objection-
application
interference within
granted,
will cause
outstanding license
appellant’s sta-
tected contour
interference to the
able
same,
indirectly
but
thereby
modify
contour.
lawfully protected
tion within its
(as
Act does
is hereafter
For
issue
accord a
convenience
Supreme
modifi-
Court
the issue
construed
sometimes referred
case),
license.
on
issue whether or
KOA
vel non
cation
public
requires
appellant that
interest
such modifica-
is the
contention
issues,
pointed
Each
out
accorded tion.
of such
hearing must be
on such issue a
above,
importance to both
contention
is of critical
It is the
byit
the Commission.
private
public
no the
and the
interests. The
on
issue
of the Commission
expertise
fully
now
is needed
held. We turn
hearing
.to-
need
for the
of the one
problem.
much
determination
of this
solution
ward a
And
deter-
issue as
the other.
for the
ex
solution is
found
mination
each
these
the Com-
issues
Act.
press
in the Communications
terms
presenta-
in need
equally
mission is
silent on
312(b) set forth above is
argument.
of evidence
tion
shall be
whether
Nothing but
Second:
unmistak
(cid:127)
issue
granted by the
on the
language
able
warrant such construc
will
(indirect)
or not
modification
whether
produce unequal
of a statute as will
outstanding
occasioned
Am.Jur.,
thereof. As said
to a
granting
requested
facilities
by the
Statutes,
legislature
“where -the
§
section does not
station. The
new
clearly‘laid
a rule for
down
one class
hearing; neither
provide for such
terms
readily
that,
cases,
supposed
is not
to be
The sanie
forbid it.
does
terms
act,
in the same
different rule has been
It must there
the Act as a whole.
true
prescribed for another
with
class
cases
properly
We think
fore be construed.
Met
in the same reason as
first.” Cf.
contemplates
construed it
Watertown,
153 U.S.
calf
reach
view
issue stated. We
To construe
Third: Administrative construction there- by hearing specifying tion for recognizes Commission itself contemplates hearing the Act “To according a determine whether outstanding operation an hearing proposed licensee station would 802
involve
with the
a
interference
the granting
conflicting
fa-
stations,
any existing
is,
therefore,
service of
cilities
broadcast
to another
pro
deprivation
nature
inter-
property.
extent
such
tanto a
The
ference,
populations
affected
areas and
process
due
clause of the Fifth Amend-
thereby,
availability
and the
of other
provides
ment
person
that no
shall be
popula-
broadcast service to such
deprived
areas
life,
liberty
property
or
with-
tions.
.
.
To determine
process
out due
[and]
law. An essential ele-
comparative
a
basis, which,
any,
process
opportunity
ment of due
is an
applications
proceed-
in this consolidated
be heard
reaching
before
judg-
a
be
Commission
granted,”
should
By
process
ment.
due
is
of law meant “a
according
hearing
construed
Act
law,
a
condemns;
which hears before
it
claiming
to an
proceeds
licensee
ob- which
upon inquiry,
renders
jectionable
by the
judgment
only after
trial.”
Trustees
proposed
of a
The
station.
Commission
College Woodward, U.S.1819,
Dartmouth
v.
hardly
can
be
say
heard to
that adminis-
518, 581,
4
(Webster’s
Wheat.
4
629
L.Ed.
trative
remedies created
it
to be
argument).
Galpin
Page,
As said
v.
by denial
rendered abortive
U.S.1873,
350, 368,
18
21
959:
Wall.
L.Ed.
pursue
existing
seeks to
to an
licensee who
law,
“It
a
is
rule
old as the
nev
them.
now,
respected
er
more
be
than
personally
no
be
bound
one shall
until
Fourth:
As
said
Su
day
court, by
he has had his
which is
preme Court, “In
the case of all acts
meant,
ap-
has
duly
until he
been
cited
Congress,
interpretation
ought
be
pear,
opportun-
and has been
an
afforded
as,
adopted
doing
without
violence
Judgment
to be
ity
heard.
used,
import
bring
words
them
opportunity
citation and
wants all the at-
harmony with
An
into
the Constitution.
determination;
judicial
tributes of
it
Congress
act of
be
must
taken to
con
judicial usurpation
oppression,
contrary plainly
unless
stitutional
upheld
justice
never
can be
where
palpably appears.”
Japanese
Immi
justly
(Italics
supplied)
administered.”
Fisher, 1903,
grant Case, Yamataya v.
189
court,
not, strictly,
101,
611,
86,
23
U.S.
47
S.Ct.
L.Ed. 721.
quasi-judicial
powers
and its
but
case it was
that a
contended
Con
proceedings
satisfy
pertinent
must
de-
“the
gressional
act authorized
administra
process.”
Federal Radio
mands of due
expel
tive officer
alien without
Nelson
Mort-
v.
Bros. Bond &
hearing.
But
the Court concluded that
1933,
Co.,
276,
gage
266,
53
S.Ct.
require
“The
do
words here
not
used
803 Commission, in sufficiently is one provided in this court is the ceeding attest (Sec- court, first questions law” not this such “limited to is to hold review moreover, contemplates. obvious is, hearings It instance Act (e)). tion 402 as the hearings ly, uisites of phone case of plates 307 U.S. Communications “questions jurisdiction” industry fore the shall have than economic conditions shall not be tration statutory dealing with these Clearly eral 1147. expertise in the exercise of Sections the Communications Commission (b) empowers the deal with them rience and careful 78 L.Ed. pose of office such mitted to it and it was respect Bro., of the from the Commission. depositions in subpoena opportunity production Trade Commission R. F. hearings 1934, that the Commission lodging Corporation Federal of the Communications It disobedience of that comes 309(a) and review —were It was created with the avowed authority Act that its Commission. 814: is to organized affecting 409(e) proof.” in “a statutory are “administrative hearings length members, open to the attendance 140, 59 It Trade Commission expressly administrative be noted special questions reason of body specially Act can proceedings pending study acquire (c), were provides books and from v. United Commission to Congress and the 312(a) 304, Cf. aid constitutional and that after scheme for as would review expiration printed to be held (d) of the business subpoenas. Final- experience.” to be held —other These 314, of the courts truly industry Rochester information, provided for this also shall finality,” basic intended its 54 functions com States, except upon expertness Act contem- manner, “give to them papers, competent Section its above are of the terms provisions (b) that such witnesses, Keppel S.Ct. (j) gives concerning as was “primary apply its adminis- affected,” decision in Fed- prereq- said of require [6] by the power, taking Tele- expe with 423, pur i.e., be- & mission which for gation, modification vel ture of that no tions serve cases, out foregoing court sons are sion above and ing. take the instant every into Act before the Commission on own interpretation tation in cation vel non of an able going, sulting The Commission It It is interlocutory preceded the Commission duty granting of facilities not here concerned force must reasoning mentions, remains to harmony interpretation, administrative must, act that if the concluded, preserve in equal hearing was performed status harmony granting practical issuing according relieve as a condition to question before it calendaring Commission contends held to the instant situation for we final either merits. with the act. discuss quo pending case out of the reach of examples application, non of the in admitted, hearing. Act be decision with without formal the Commission contends that II conclusions an subject summary construction, which it Decision of the contemplate hearings requisite. stay certain temporary injunc with an commission interpretation re- Constitution, emergency given another bring the orders to but it is with matter of liti appeal. assigning issue judicial of the contentions incidental license set Commis interpre- validity, that not asserted the na- and a hear- station. or reason- asserts modifi- Com forth or a issue from fore- pre oral rea acts Act by making of which the Communications Com- this statement tue The Court pari- legislative history into mission came existence on a relied respect Act, ty in Federal 38 Stat. Federal Trade Sept. 26, (S.Rep. Act. No. as shown in the Trade Commission Act Cong., ; Cong. (1926) report 1st Senate on Inter- 69th Sess. Committee S.Rep. 11), Cong., Commerce, (Part Rec. 69th 1st No. 63rd Sess. state (1926) Cong., (1914) 9, 12353) But 2d Sess. 11. history legislative of the statutes vir- *11 petition asserting such modifica- treat the to decide that what had the Commission thereby upon avoid not, as if allegations, the tion demurrer and was whether under the truth necessity proof the of truth, appellant’s of assuming the of their “objectionable inter- of of petition describing allegations the the for reconsideration they do not as of ference” if a matter law licensed facilities and the effect within the Com- the “show” such interference of proposed the of thereon may This charged station, mission’s rules and standards. Stanton the interference by adoption pro sensible tanto “objectionable against indeed interference” in practice. the But the court appellant is under Commission of which the for feasible instant was not Commission’s and case rules standards. Commission, appears petition to Commission argument to deal with so the run, upon It as cognizant its own rules reconsideration if demurrer. of only mean- is the not may standards their contention of the determine any hearing this rules ing parte, leaving ex that within the 'Commission’s appeal. question skywave day- think properly of We read law to standards when supportable “objectionable for the interference is inter- this not time contention against following ference” its station reasons: which as protected, Class I-B clear channel station is over-simplifies ques- The contention but rules and standards do also if presented tion to Commission: protect against they interference petition for reconsideration true that are contrary actual made to measurements skywave daytime alleges in essence that 1944, e., as late physical since i. op- by occasioned files, data the Commission’s within station and Stanton eration of the require the rules-and shall be standards con- inter- states that “The Stanton answer sidered, and also if rules and stand- by appel- ference claimed [the daytime protect against sky- ards do not nor this neither denied admitted lant] they are contrary waves to the North Amer- is not considered permittee [Stanton] Regional Agreement, ican Broadcasting interference within as (1937), par- Stat. 1005 hence in prescribed meaning of the term void. Thus within ticular included of Commission’s Rules and Standards “question of law” raised these conten- Engineering applicable Practice to Good fact, wit, is one of as to tions the nature Superficially, may be this matter.” of the measurements Commis- or data law, only raise 'a said files, sion’s and one of fact law mixed petition upon if demurrer bearing upon this data reconsideration, meaning meaning “objectionable of the term inter- standards in re- rules and ference” as used the Commission’s rules spect “objectionable interference.” prac- and standards. Under law common by provid- Act Since the Communications tice its broad reference to conduct “The “physical' data” within the Commission’s in such manner as will proceedings its subject might special files have been to a de- to, proper dispatch best conduce murrer for uncertainty, present justice” (Sec- and to the ends business practice the Federal rules of courts to (j)), has freed bring, speak, particulars bill so “technical of evi- from the so-called rules exact the face of nature applied procedure” traditionally dence “physical data,” all allega- so that courts, ordinary it is out of necessary full statement tions fact Commission, its denial defense petitioner’s “objectionable claim of refuge appellant, seek “protected within interference” contour” “formality” de- common as a such a law purposes dealing known for Nevertheless, do rule that we murrer. petition as But with the demurrer. may not, at threshold particulars special and bills of demurrers of an issue modification consideration' indulged the Commission’s by the are not non vel station, practice. Therefore a operations another 'proposed *12 805 999, 1129; Pater- requisite attention, 82 v. bring purposes L.Ed. Erie Co. to for R. son, 512, 1055. As 1910, dealing appellant’s for 76 petition 79 A. with N.J.L. measurements, Denver, a state in reconsideration, the actual said Londoner v. where “physical legislature the administration data” in committed files, an submerged general in reference tax to enacted a local which board landown- allowing thereto in the ordinance assessment petition. justiciability whose out of court—unless he is allowed to amend present murrer) tention upon demurrer, On the Sustaining ing. for final in A demurrer at even if in rer (or a its allegations can be asserted cause of action or defense. motion to pleading it is instant case is incorrectly contrary Federal determination is not a mere a demurrer It is disposed under court practice it dismiss, the Commission’s con to be dealt assumes that a is a pertinent be noted directed puts for reconsideration sufficiently precise procedural without the substitute in the party common merits of further permanently for the de with instrument a hear specific demur against nicety. as if that, law law [14 S.Ct. need . thing proceedings may Many requirements allegations rigation thereon: ings in the ease &c. titled to it taxation, in its jections all Ct [17 [Italics ers If at objections opportunity Railway board, it is S.Ct. be, hy page 714, more than very opportunity supplied] this District v. enough that, but no 56. hy argument then there was a essence demands that he proof, shall at bar. But nature. required Co. v. to and 52 L.Ed. 38 have that, [210 however informal. L.Ed. L.Ed. opportunity given Bradley, essential Backus, dispensed under such But even here complaints hy U.S. at file even in 1103] however 369] 1031]; to submit due we think that complaints and ob- right 154 U.S. 164 U.S. in with hearing [7] process et page strictly proceedings circumstances, Fallbrook brief, and, seq. support the tax to in who is en be Pittsburg 112, 171 proceed afforded of law. judicial -writing heard some . 426 his Ir S. . can Overruling amend. contention a demurrer machinery sets the decide the issue before it properly the court motion could puts any hearing parties hearing, leaving to an without a proof. their It is only practice respective ignores positions not the appeal of courts at the law, common or indeed and this court under the modern functions of codes, disposition statutory in the for administration make scheme of demurrers but also true this court practice no such Act. would under ques supportable. 402(e) Constitution power to rule process due guarantee But as indicated draws tions law. has been no distinction questions context, rulings between above another its are in of law and questions of process requires review, Due fact. first not in the Com instance. only opportunity presentation first, for the exercise primary of mission itsof evidence and the expertise jurisdiction, apply its cross-examination of wit and make nesses but opportunity also argument. writing “full statement the facts Denver, 1908, Londoner given v. grounds 210 U.S. for its decision as found and 708, 52 1103; S.Ct. L.Ed. Morgan (Section 402(e))8 . .” Admini United States, 1, 18, must, strative tribunals in the nature S.Ct. 7 Morgan States, proposes v. United cited be heard text, posals the Court said: “But a ‘full before it issues its final command.” hearing’ open hearing (304 pages 18, 19, fair and U.S. at —a at —re quires right page 1129) more than that. The to a only right embraces not 8 It is to be noted there is present adequate but evidence instant also reasonable no statement case opportunity ly complies requirement. to know the claims There party opposing and to meet them. record Commission’s “Deci right argument implies op to submit and Order on Petition sion for Reconsid portunity; allegations otherwise eration.” This recites brought but a barren one. who Those reconsidera
into contest with in a the Government tion and of Stanton answer and re quasi-judicial proceeding cites the rules and standards aimed of the Com providing control primary of their activities are entitled to mission fairly advised of what I-B Government service area a Class clear chan-
806 We ques- functioning, questions on or alone. their make decisions and law of law Act, contemplates rightly viewed, They tions of in can- think the the first instance. law in- first applying hearings by to Commission not reach decisions without governing questions. their stance on they facts all such find law action; they must first apply the law and finally, contends, The Commission determine is. it Cf. United States what v. effect, argument makes elaborate and R., 1914, 314, & R. Louisville U.S. N. operation of the that its that decision 321, 113, 245; 320, Ro- S.Ct. L.Ed. objection not cause Stanton station would Corporation Telephone chester United appellant’s station able interference States, contour is protected lawfully within its 1147; Baur, 1 Vom Federal Ad- therefore, not correct and should decision in (1942). Nothing ministrative Law 73§ withstanding it reached judicial Communications Act in or The contention be affirmed. are though construction thereof which we aware again distinct, of ignores the correla tive, indicates that of Con- this Commission and it intention functions amply statutory gress that should exercise court under Commission scheme — explained Until the primary questions above. jurisdiction its on of fact upon hearing primary only, in exercise its questions mixed fact and on not days immediately periods “protec- daytime be- some nel is entitled station sky- sunset, objectionable up and after and fore sunrise tion from interference which into waves reflected its contour.” And it re- areas 0.1 mv/m periods recog- days, on other same has also cites that the Commission time, signal. no such In receive nized “that radio wave conditions of therefore, permit operation art, it propagation state of radio is on virtually impossible as clear channels stations denominated II, to de- do believes unreasonable under Class conditions ‘daytime’ operation (i. un- fine terms as e. interference allow stable, erratic and uncertain as con- contours established within the service) propagation day night primary sun- ditions of radio wave at rise channel sta- and sunset. ‘dominant’ the so-called dear “Accordingly, proceeds the Commission is of the tion.” Then the dedsion. Joseph opinion grant to Patrick follows: Stanton, Philadelphia, Pennsylvania, op- complaint does is that “Petitioner’s petitioner’s proposed not result interference Stanton eration WCKY, Cincinnati, Ohio, skywave Philadelphia in- as de- will at result WCKY, Cindnnati, fined the Commission's Rules terference Station Standards, Ordered, following during period This Ohio, and hence It sunrise day preceding 14th November said sunset. The Commission’s Wilson, (WCKY), daytime relating protection of L. Inc. B. Rules Cincinnati, Be, Ohio, for reconsideration I-B do not stations of Class contours Hereby, protection cognizance and It is Denied.” nor afford take foregoing, noted, skywave against rea- con- for the express finding ruling no not during ef- tains are reflected son that such waves fectively day. rules and standards Commission’s do baek to earth skywave protect against daytime skywave part which are a curves I-B channel terference to Class clear based Standards Commission’s Only skywave upon inference this to be station. measurements extensive by broadcasting signals produced from decision. There is no learned finding stations varying are the measure- various to what actual and at conditions year. made since 1937 and late as at ments seasons e., physical data the Commis- taken and i. measurements were these time made, they files, and no as to sion’s conclusion the ef- studies indi- other sdentific skywave signals on there data fect that such cated standards, very order, were, and there no and hence con- low were importance on the the effect little clusion considered so were Regional the North American Broadcast- the Commission the Standards of skywave Agreement cognizance daytime on the Commission’s rules no took frequencies. findings propagation standards. The absence of broadcast questions rulings change are, periods how- these obvious- diurnal The ever, very ly the reason that uncertain their erratic propagation. them. On had not wave held radio effect cipal Supreme jurisdiction expertise ques applied proceeding. As the Court evidence,1 appellant’s petition presentation of said about presented by the oral has, respect argument such hear after so reconsideration it is in oral —it ing, designed safeguard with the made its filed decision and afford *14 good in of the facts one writing court a decides shall in full statement who be bound decision, question of grounds for argument and its the conscience to the consider properly be the ex- correctness thereof reach his conclusions is uninfluenced aliquid “Qui parte fore statuerit court. considerations.2 this traneous altera, dixerit, aequum inaudita licet hand process of law” term “Due is not a aequum anything, He who decides may vary fecerit. fixed circumstanc- content. as unheard, though being one he should party vary. Supreme es has held that Court 52; wrong. 4 right, decide 6 Bla. does Co. in argument suffi- some written is situations Dict., Com. 2 Rawle’s 483.” Bouv.Law comply requirement cient for a with Revision, 1914,p. Third 2157. hearing,3 but in other circumstances is reversed The order necessary.4 oral hearing is pro- further the case remanded for considering process We are due lawof ceedings opinion. in accordance this disposition a petition inter- Reversed and remanded. process principal vention —not in the due requirements
proceeding.
pro-
due
EDGERTON,
Justice,
Associate
concurs
vary
presented by
cess
as the situation
result.
petition
Moreover,
process may
varies.
due
orderly steps. Thus,
legal
be afforded in
sufficiency
allegations
PRETTYMAN,
(con-
fact
Associate
in the
Justice
petition may
curring).
necessary
be
before it is
tested
allegations.
test the truth of
Such
I
in the result
case. The
in this
concur
procedure
regular
of courts.
appellant
invasion
a
asserted
threatened
rights,
e., objectionable
its
inter-
i.
present
petitions
ques-
Sometimes these
ference
fact,
within
contour area.
law,
questions
sometimes
tions of
alleged
The facts as
substantial and
both,
raised
question
no
sometimes
sometimes
legal questions
serious
under the Commis-
alleged facts,
presented
because
taken
Regulations
Rules
and Standards
true,
sion’s
legal
any
indicate
do not
under
con-
Treaty,
under
North American
cept
right
petitioner
is in-
pointed
opinion
in the
the court.
out
proceeding.
If
facts al-
volved
procedure
Under
scheme
down
petition
laid
leged
rights
a
clearly
show that
Act, appellant
in the Communications
was
petitioner
princi-
are involved in the
upon
entitled to be
heard
pal proceeding,
petition
cannot be denied
questions
this
those
before
court is called
hearing in
petitioner
which the
upon
disposition
to review
prove
the Commission’s
those
opportunity
has an
If
facts.
Also,
agree
I
the matter.
due
disputed
are
but
facts
there
also a
disposition
petition
cess
of law the
of a
question
whether,
even
law
if the
requires
true, petitioner’s
intervene
rights
the form of
facts be
argument
alleged
an oral
volved,
petition
when
facts
cannot be denied without
question
raise
legal
a substantial
hearing upon
question;
petitioner’s rights
prin-
hearing may
law as to
an
argument
consist of
oral
1 Morgan
States, 1936,
ing, although
petition,
v. United
298
on his
I think
480,
906,
468,
right
56 S.Ct.
80 L.Ed.
his
quately preserved.
one
ade-
1288.
2
3
appellant
request
Morgan
States, supra
did not
oral
This
v. United
note
argument
page 481,
this
before the
petitioner’s rights to oral denied words, must hear- intervention petitioner tion further cannot denied without true, which, if alleged allege ing upon some facts. fact facts truth of legal question as to supposition present present composite substantial latter petitioner right The al- agree he has a involved. case, I had whether ques- questions leged arguable hearing upon present must right facts to an oral rights allega- petitioner enforceable to his raised his before law as right argue. facts, protection the Con- assuming facts to be tions allegations alleged; if his established stitution must be invoked *15 allegations, his premise question truth not whether fact. protection could petitioner not be denied then his entitled attempt Constitution; he everybody at which is so could prove his question facts. is what that at all times. what tection consists of. agree portion I But do not requires petitioner process due when indicates the court which opinion proceeding does pending intervention in a petitioner no what matter which, any sub- allege fact says petition, he is en- his tervention law, stantially theory shows conceivable constitutional statutory as of titled right I think that involved. hearing. him have a my It is view right to an oral require has no alleged petitioner if, upon the facts' by hearing. question, petition, not even a substantial