*1 v. CO., Inc., BROADCASTING NATIONAL COM COMMUNICATIONS FEDERAL Inc., CO., (MATHESON RADIO MISSION Intervenors). al., et
No. 7933. Appeals Court
United States of Columbia. District Sept. 1942. Reargument Decided On 18, 1943. Jan. Granted Certiorari
ofWrit Patrick, Mr. D. M. with whom Mr. Phil- 526, L.Ed.-. 63 S.Ct. See ip Hennessey, Jr., both Washington, J. C.,D. brief, on appellant. Taylor, Mr. Counsel, Telford General Commission, Federal Communications wit h Harris, whom Thomas E. Assistant Gener Counsel, al Harry Messrs. M. Plotkin Meyer, and Daniel W. all Washington, C., Counsel, D. brief, were on the for the Federal Commission. Messrs. Denny, Charles Jr., R. and Bene Cottone, dict P. Washington, C., both of D. appearances also entered for the Federal Communications Commission. Pierson, Mr. W. Theodore with whom Haley, Mr. Andrew ton, Washing- G. both of C., brief, D. for Matheson Company, Inc., Radio Intervenor. Messrs. Arthur H. Schroeder and Geo. Sutton, C., O. both of Washington, D. filed a brief on behalf of Berks Broadcasting Company, Intervenor. GRONER, Justice, Before Chief MILLER, STEPHENS, VINSON, EDG- ERTON, RUTLEDGE, Associate Jus- tices. RUTLEDGE, Associate Justice. appeal is from an of the Com- order appli- April entered mission Inc.) op- (Matheson Company, cant Radio Boston, WHDH at Massa- Station erates chusetts, Appel- is intervenor here. Denver, Col- operates KOA lant Station kc, orado, frequency, same upon the American 850 kc under the North Re- now Agreement. Broadcasting The or- gional in power authorized increases and time der ag- claims it for WHDH. interests grieved and its af- Hence it fected the order. both asserts appeal and one to Commission, which denies both. The whether, principal questions are therefore (cid:127) made, showing (1) appellant has on the appeal; (2) standing to arbitrarily erroneously in refusing acted permit it intervene as a proceedings. administrative *2 5á6 area; station, operating degrading Station status of Class I KOA is a kw KOA from channel re- 50 a clear station channel with a clear since on it; though classifying and, in effect not By classification
power.1 of this virtue terms, re- operating modifying fre its in these only on its license was the station below, spects. appears As quency night prior order also now at question. changes only had been asserts these affected its 1930 WHDH From substantially adversely, daytime until and but 1 kw interests operating station upon had like effect sunset time. order modified Denver The secondary within operation depriving for unlimit listeners permit its license to jeop- power. service area of its service also in No formal and and with kw ed time ardizing frequency status of un- made in KOA’s this or literal modification Regional Broad- of der the North American license modifying but Agreement.3 casting interference created electrical aft WHDH ¿OA’s secondary service area. er sunset however, injuries both The substantive Roughly region lying public, are set forth and to or more east Denver. To ac 700 miles substantive redress primarily not to secure complish change, this the Commission had appeal, (1) appel- in this to establish but 850, frequency to transfer on which appeal; (2) standing lant’s and to show operate, (a) both stations from subdivision had a intervene (b) its to subdivision of Section 3.25 of which it the Commission’s Accordingly provided rules.2 the order deprived arbitrarily has either or er- this transfer. again roneously. The case therefore raises injury appel- concerning The substantive the troublesome appeal complains entitled from the Commission’s consisted therefore in cre- lant ating showing, and what and additional electrical inter- new orders ference, provisions of the in this affecting secondary its service nebulous statute 090, 1,130, 1,150, 1,170 1,190 kilo- and 3.25 of the Under Sections 3.22 cycles. power Regulations, I stations Class Rules concerning following, on provisions these channels shall not than clear be less 50 kw. stations are made: channel “(b) poioer To standard each the channels below Glasses “§ 3.22 assigned Class I and there Class (a) Glass I station. broadcast stations — 680, 710, 970, 1,020, II stations: I a dominant station station’ is A ‘Class 1,040, 1,060, designed 1,050, 1,080, 1,- 1,100, 1,110, operating channel and on clear secondary 140, 1,160, 1,180, 1,460, 1,470, 1,480, primary service render 1,490 kilocycles.” Fed.Reg. relatively (Supp. at Code area and over an extended 1939) 2742, long primary service area 2744. Its distances. objectionable interference from is free supra. See note Various conten and ad- on the same from stations change, secondary tions with reference to this made jacent channels, serv- being “legislative” policy, interference, except one in or from ice area free “judicial” character, adjacent channel, made hear on the stations same, improper ing" official, e., i. before channel stations and from etc., herein, examiner, designation are not considered channel with the accordance important ‘Engi- more since other and issues with the or in accordance in neering 3.25 § dispose appeal. page are sufficient Allocation’ Standards treaty 8(d) B, II power of Part of this operating Par. shall be not period provides: “If within the of this than 50 kw kw nor more than 10 less country Agreement power to which a clear (a) limi- (see further 3.25 § also assigned shall channel has been have tation).” the channel not in the channels; made use “jj class Olear 3.25 following frequencies described not to the ex manner above II. by- provisions designated tent chan- clear tabulation- country Agreement, such shall be con assigned the classes for use nels and por having relinquished given: sidered stations as which it used “(a) below of the channels To each expiration agreement, assigned at the I Class one will be there assigned shall thereto other countries or more there fit, right, operating see if with have limited time II stations Class privileges from only: 660, 670, unused daytime draw country reassign 800, 810, 820, them to and to 750, 760, 770, 720, 740, 1,- 1,070, 980, 1,000, countries.” interested 830, 850, 860, 870, all of difficult, like- perhaps financially be able respect;4 hurt will equally and the ly appeal. who, will anyone, they probably It is true inquiry, more unsettled proceed- necessary intervene as in its financial resources others, litigation. ings granting, modifying follow that denying *3 adversely though who equally be affected cloudy provisions license under the financially, relating willing will be nor able to these neither matters. appeal. to Appeal contrary assumption ignores Right I. The broadcasting facts that is not exclu- radio appeal. standing has sively a matter of financial business ag upon “person The statute confers this gain, public it is the grieved whose interests are private primarily at right, which is Fed (b) (2). 402 affected.” Section Unfortunately, appeal. stake v. Communications Sanders eral enterprise Comm. taken over commercial has 1940, 470, Station, 309 U.S. Radio Brothers Unfortunately, share of field. lion’s 869, 1037, 642, 693, 698, 60 84 L.Ed. S.Ct. becatlse, infancy, when radio was its Supreme held that the licensee Court many persons hoped work that much of its likely competing be finan religious educational, be done would appeal. cially injured qualifies It went institutions, eleemosynary more than Congress "may further and asserted that permitted. Notwithstanding event has opinion likely that one to be have been of policy which has so favored commer- injured by the license financially issue of a operators, cial there is a considerable vol- person a suffi only having be the broadcasting. of noncommercial ume bring cient interest attention place through supported takes stations appellate court errors ac of law in the churches, by advertising “plugs,” the li granting tion of the Commission in universities, colleges, charitable founda- “Financially” (Italics supplied.) cense.” profit-mak- tions and others no opinion was inserted amendment of the hope ing Many revenues. still after decision was handed down. first apparently evils inherent in commercial guarded not follow that broadcasting yet may larger bring about a speculative injury makes dictum economic frequencies allocation of whose licensees appeal, the sole criterion of status objects primarily are not making and WHDH contend. The money. only involved Sanders case on facts its appeals financially Limiting injury. financial The court held that suf practical injured would have effect Though suggested possible ficient. denying nonprofit-seeking them to broad- insufficiency injury, of other kinds of Conceivably, very casters. instanc- rare question concerning them was before it. es, operators could such show financial in- The decision therefore cannot be taken as obviously they jury. But could not so do deciding such an issue. which circumstances commercial frequently strong why There are reasons able dictum most to dem- stations accepted possible should not be incidence. The view as either or onstrate stating forecasting accepted the law. can Nothing stat- these stations cannot appeal specifies only showing ute when some action Com- injury practical destroy- financial as the effect mission exclusive basis to has hypotheses appeal. capital Nor are the tenable investment. Such a view sort, injury only that such is the be consistent with sub- would not kind, likely stantial occur or that interest and is the foundation 4 presented Comm., 1939, here Federal Communications v. 788; Supreme App.D.C. 265, Court 105 F.2d Pitts and in the numerous 70 Supply burgh g., Sanders Bros. Radio House E. Radio Sta- v. Federal cases. Comm., Comm., 1938, App. 69 Federal Communications Communications tion v. App.D.C. 297, 303; 321, 22, 1939, 98 F.2d Red River Broad F.2d D.C. casting grounds, 1940, Co. v. Federal Communications 309 U.S. reversed App.D.C. 642, 693, Comm., 1938, 1, 869, 470, 98 F.2d 84 L.Ed. 60 S.Ct. Inc., 282, 1938, 1037; WOKO, denied, certiorari 305 U.S. Federal Communi- v. Comm., 625, 400; 1940, App.D.C. 228, L.Ed. Pulitzer cations 59 S.Ct. 665; Network, Inc., Communications 109 F.2d Yankee v. Pub. Co. v. Federal App.D.C. Comm., Comm., F.2d Federal Communications App.D.C. 212; 11, 107 F.2d Stuart
5á8 primarily ondary service to total obliteration areas broadcasting and
of all designed in primary Notwithstanding field. appeal broadcaster’s commercial view,7 contrary apparently protect. Federal Station, su- Radio the latter effect would than a to be more Bros. Sanders Comm. v. pub- appeal, whether or not likely utilize the sufficient for to for pra. The latter showing injury could be protecting his financial vehicle lic interest as a Likewise, end, that made. at the it seems tentative private standing, however in- doubtful that an amount of New business infinitesimal legal status. may be public new electrical create the defense interference rush to stitutions appeal. standing affected in they are not weal when operators, way. As between private therefore, Presumably the Sand- decision in broad- noncommercial and the Supreme ers case the intended Court *4 knight held caster, latter cannot be something injury financial be the more than nominal or must to unwilling battle unworthy, unable or highly speculative. appellate good lists of general opin- It seems not unreasonable to read the to intention Congress had no litigation. requiring by implication that there ion ap- nonprofit taking from stations exclude peals, probable injury of char- be a substantial practical ef- absolutely inor either way seems by acter. much of limitation So showing appeal by if can And fect necessary prevent vindication to so can injury, also than financial other ap- mass turning interest from into operators. commercial industry result- peals by large, with injury however ing hopeless clogging of economic of administrative Absence Likewise, presence of suf- process by judicial amount to review. interference, injury. Appellant hardly asserts neces- ficient enough electrical sary it is championship by creates electrical appellate that the order secure to now every This affected in interference. broadcaster be apparent position denies, only in reversal of its remote and insubstantial manner. interference, decision.5 with- the Sanders It out a that electrical prior to follows interference, regard- showing injury, that of financial argues electrical effect, appeal. create But standing amount creates to of sufficient less points out support purpose this it there be a appeal for this must reasonable of To regulation, in- will And possibility occasion substantial. the whole that that license, held, from appear, of arises from cluding feature must we have this frequencies appeal and number of and statement rea- the limited the notice of of cause, Network, Inc., electrical interference sons. Yankee v. Federal chaos cause,6 Comm., 1939, App.D.C. there were au- did indeed Communications power allo- thority vested with of F.2d 212. police. cation sufficiently case the notice dis- however, necessary, go appealable so It states that closes interest. appellant. present stage appellant aggrieved In the and its interests are far with radio, very changes, by few either fre- its peti- of order power, denial quency or can without reaffirmance made on creating degree rehearing; interfer- some electrical tion for sets forth detail the range steps from minute and nature before ence. interruption Commission; states, among practically harmless with re- rea- very upon, occasional listeners in sec- sons relied that the order: mote controversy case, pre- in that Part Federal Com- concerning viously, 402(b) (2) (1940) mission whether with reference financial was being injury apparently position sufficient, was position injury, injury whether or not result financial the Commission’s interference, electrical interference the most from electrical is suf from necessarily Congress appeal enacting means that had in mind ficient interference financial electrical without section. regardless injury, of the extent or effect Prior Radio Act of 1927 and interference, following would be no basis the decision in United States v. Generally, D.C.N.D.Ill.1926, appeal. course, Corp., extensive Radio Zenith injury. Attorney financial would cause and the General’s interference F.2d Ops. Att’y opinion, (1926) not clear this would be true of it is Gen. 126. See Attorney necessarily, perhaps, Monograph nonprofit stations General’s always Procedure, in other cases. on Administration Committee appellant, positions on taken modifica- in a substantial “(a) Results * * * hand, that such a arises by appellant held license proc- Fifth Amendment as matter opportunity an having afforded it without law, ess (b) required heard WHDH, other, Congress has of 1934.” Act the Communications discretion absolute former (Italics supplied) inhibits nothing in the Constitution “(b) change in class Results in a or limits. * ** frequency character of the with- ap- right of existence of a is said that out consent or Sec- peal presupposes intervene. (f).” tion 303 expressly provide. But does not so statute in “(c) degradation Results in a of service conclusion, for reasons view our (850 prejudi- on 830 kc which will be kc) stated, entitled priority rights cial of the United intervene, necessary is not decide Paragraph States on this channel under some unusual circumstance one B 8 (d) Part II North American party might not entitled to become a Regional Broadcasting Agreement without peal. affording appellant hand, On the Commission’s heard on its own behalf and on behalf *5 argument has untenable that the listeners it serves.” no to be heard because has vest- no “(d) against Results in a discrimination frequency, ed or in license its service to rural in order to fur- listeners thereunder, Federal or status Communica- nish additional service residents tions Comm. v. Sanders Bros. Sta- Radio City of Boston and as such is violative tion, supra, empowers or because the statute requirements 307 (b) Section regula- the Commission to make rules Act of 1934.” tions, 154 (i), “conduct its assigned Other reasons include asserted- proceedings in such manner as will best ly improper procedures changing Com- dispatch conduce the proper of business policy, mission appli- failure to return justice.” and to ends of Section 154 rules, required by cation as amendment fallacy (j). The that one no who has notice, improper of the rules under insuffi- proce- has vested therefore ciency support of the evidence de- protections dural in relation to the more cision, hearing according denial of to due rights, privileges pos- tenuous sesses.8 Whatever its or status he law, process of etc. label, proper “qual- face, therefore, charg- On its the notice “status,” “privilege,” right,” ified “li- substantially es order modified censee,” appellant acquired something of KOA, changed license the class and by value virtue of and the stat- its license frequency, character of its degraded the important. ute. The label is that The fact station’s service under North American statutory has fulfilled condi- Agreement; jeopardized thereby not advantag- tions and statutory has received appellant’s priority rights but the of es, protections important. status and the United States and ests, present the inter- therefore States, 1926, 568, Tutun v. United 46 270 U.S. future, listening S.Ct. 70 738. That it L.Ed. public, and created against discrimination deprived of these and that the Commission rural and in favor of urban listeners con- away, wholly them discretion to take trary statutory requirements. These rea- part, not mean that do do so can sons to be a sufficient showing of hearing.9 unfair manner without private both interest and of protections procedural process The due adverse affectation to appeal. sustain the disappear because the do not substantive They require that it considered on the right full-grown vested merits, is, question on the right like that in one’s castle at the com- pellant was wrongfully refused a appeal capital mon law. The before Commission. entirely statutory. criminal cases is entirely put beyond consti- II. The Right Hearing Huff, Boykin tutional limitation. Cf. v. 865, The extent conflict concern App.D.C. 73 121 F.2d appears intervention from the extreme Similarly, though authorities cited. statu- 8 Davis, Requirement Op See 1118-25, and authorities cited and dis- portunity to be Heard in the Administra cussed therein. (1942) 9 tive Process 52 Tale L.J. Ibid.
550 occupational the statu- er. forth tory rights license, tion, will aid first to set in the nature of tory provisions concerning hearing discre in administrative revocable provided Rules “property” purposes the Commission’s not be those and to pertinent both Regulations are due protections by substantive afforded then against and to intervention. These process, they unguarded are not light of what considered in the arbitrary action.10 Procedural administrative Commission, by appellant against them process protects d this, ue done notwithstanding and does so Statutory Provisions A. The power rule-making broad given and discretion Hearings Scheme of concerning the man Commission conducting ner of its business. hearings con- concerning Provisions (a), (a), (f), tained Sections therefore comes down issue crucial Act,11 (a) in addition (b), and deprived to whether has been 154(i), (j) referred to above. to Section to which an it was entitled either fair applications (a) by the statute or relates to license, prongs and for modifica- elementary process. may The two renewal togeth- is authorized to is- be considered tion. quired from grant warrant (cid:127)consent of the station licensee (cid:127)changes n !by ’hereof, or because after shall determine that station, an (cid:127)application revoked (cid:127)of this .promote thereon, power, (cid:127)or will serve visions of (cid:127)complied scribe.” license essary notice of cision with rules and that cessity inconsistent with law it thereof, renewal, application the renewal such stations and to the Commission (a), (b), 409(a) (1941). cordance (1934), § § § 11 48Stat. such statements of fact as opportunity to 303(f). 309(a). “If 312(a). applicant ibid. public application a a license on an may or in the times of chapter: Provided, however, would be served the Commission shall for false statements either in shall not be made without public it and shall afford such with.” the Commission in with public or modification thereof this a time prevent TJ.S.C. respect thereto, shall authorize the regulations for a station or in “Any interest, “Make such be or the 1082, 1085, 1086, 1087, 1096 time public thez’eof, said chapter upon modification upon carry convenience does not reach such de- frequencies, station license the statement of §§ of conditions finding. be heard under such interference necessity, examination convenience, examination of 303(f), 309(a), time which would such out the shall will be more place original applica- operation the Commission regulations not license it shall changes the In the fix and section refusing or may or the authorized provisions may deem determine a station applicant issuance, granting revealed between may hearing unless, or for or ne- of notify event That fully nec- pro- give pre- fact will any any any the ac- re- be permit mission licensee final ing such order has been teen ten judgment as the Commission will June shall restrictions notified ter or treaty of revocation shall plied order, this ence, tunity sion Provided, however, said fifteen sions the conclusion said shall latzozz of or to the Commission at mission either the date ly tion, or for failure to § § modification the 409(a). 312(b). United the duz’ation of the term application license promote chapter days’ issued, order authorized stand until with: have been set forth hearing to show cause ratified required hereby cause for Commission, may affirm, modify, or grounds may this any regulation necessity, or notice in writing given of revocation.” States upon suspended the holder of such outstand- days “Any and conditions of this may failure or or of the Commission Provided, “Any chapter conducted should not issue.” make written for a modification of said granted said permit be modified or reasons the public interest, to the licensee. Such the will be more of the member or examiner any treaty may prescribe. Upon to observe station writing thereof, That no such order take effect proposed revocation, order filing limited time or until the conclusion operate or why hearing upon howevez-, hearing reasonable any shall have chapter under such rules thereof, if the and after United States: of the Commis- such an order of such of revocation license shall become provisions therefor and time construction such action substantial- director of application or for vio- any of z-atified fully the the Com- the *6 until That conveni- within revoke oppor- action pz’ovi- chap- Com- writ- after com- stat- such such been the fif- if, noted, (j) sue, upon (i), As modify license renew Section power application, it deter- the Commission examination confers broad lawful regulations, to make issue rules and convenience mines it. of con- orders and determine the manner necessity by granting would be served ex- ducting it does on its business. If not reach such decision set amining then it must the application, may turning we regulations Before appli- hearing, “notify the matter for note in terms 309(a) that Section * * * * * * cant afford guarantee applicant anyone an else a applicant be heard under may hearing in all be de- cases.' The matter pre- and regulations such rules as it applica- termined examination of (Italics supplied.) scribe.” tion, if in that manner Commission is able application to conclude that the (f) Under Section 303 granted. words, applicant In regulations authorized to “make such is not hearing deem entitled to a if the action is not inconsistent with law hand, prevent to be in his necessary to interference between favor. On the other provisions carry for him out cannot decide stations merely proviso examining application, Act must [chapter],” this but with frequencies, “changes hearing author him notice. afford with due short, power, operation deny ized or in the times cannot without station, necessary without applicant shall not is a made unless, licensee party. consent of station Whether other after public hearing, affected, licensees, de Commission shall including existing are or changes promote termine that such will is not deter- entitled to a public convenience or interest or will serve explicitly perhaps implicitly by mined provisions public necessity, or the primarily applicants’ section. [chapter] complied fully will more Act chiefly, though section and deals not nec- * * (Italics supplied.) These with essarily exclusively, applicants’ rights. with important provisions present are the most 312(a) (b) (modifi- (revocation), ly involved. cation), hand, primarily on deals (b) (a), existing Hearing licensees. prescribed. notice to licensee ques- notice is When pro- revocation or modification of license is tion is modification the licensee must be *7 posed. In case of modification the li- given “reasonable to show “given oppor- censee is to be reasonable why cause” the order not issue. tunity why cause” to show the order When is revocation is to be issue, having should not after notice under such “conducted rules as the Commis- writing. may prescribe.” sion In contrast with Sec- 309(a), expressly tion Section deals By (a) Section 409 a or commissioner applicants therefore with primarily, not examiner or director of a division rights, their but with designated licensees empowered, when by the Com- rights. mission, applicants Under the one hearings, except cannot be to hold ex- an may hearing; affected without a aminer un- not do so administration der licensees the other respect Title III with cannot so affected a matter involv- by revoking modifying or ing: “(1) a the license with- change policy by the Com- mission, out purports a Neither section (2) revocation of li- station a cense, parte (3) developments hearing provided make the devices or ex new or to radio, (4) applicants, or a new kind limit it in the one case to frequen- of use of purports In all heard licensees. cies. cases an examiner But neither to- arguments bring give the Commission shall hear oral or them others a to come request sup- party.” either (Italics Though expressly in. others are on not ex- plied.) cluded, theory seems be in each in- powers' respect involving duly division, designated by with to a matter purpose, may change policy by (1) Commission, for such hold sign hearings, subpenas, (2) issue ad- the revocation of station oaths, witnesses, (3) developments radio, minister examine new devices or any place (4) frequencies. evidence receive or Unit- a new kind of use of designated by Commission; States ed except In all cases heard an examiner arguments administration of sec- Commission shall hear oral on request party.” tions 301-362 of this title examiner of either may not be authorized to exercise prevent principally, stations hearing is between stance that though interference exclusively, carry provisions for the and to Act necessarily out the case, [chapter].” supplied.) prin- applicant (Italics benefit of the in the one interference, cipal section the licensee in Neither concern of section is the other. explicitly proviso, including to take designed face and the limitations of the its requirement hearing, relate mat- the interests of care of the an where situation directly likely applicant existing licensee or of ters most cause and most and an related In with two so. to interference. contrast licensees or do clash pri- 312(b), Sections 309 which are (a) and terms, 303(f) particularly Section is in marily one-party sections, 303(f) proviso, 312(a), (b), much like Section necessarily subject deals matter provides expressly public frequencies, in that it hear parties in private involves at least two ad- ing “changes in the concerning Commission, * * * prin- dition to the cipal with the power, times authorized dispute be- occasion for difference and operation,” licensee” unless “the station interference, them, among namely, tween or change. consents to the explicitly It is not stated with the causes of this. sec- and tion is chief he is notice and entitled to basically two-party therefore that seems section, multiple-party counting clearly implied provision for hear notwithstanding Commission. true prohibition ing changes with of these primary clause is cast in terms of dele- Furthermore, unless he out it consents. power gating rule-making to the Commis- explicit section statement con contains no subject It is concerning sion matter. participation by any cerning notice multiple-party subject matter. nevertheless pro person. On face therefore the parties be two or more 303(f) concerning hear visions of Section stations, they may existing be one or participation are and the licensee’s applicant more such stations and 312(b) dealing much like those of Section The section does not plicants for license. modification, though in terms literally “the designate others than entirely In sense identical.12 a broad contemplates, necessarily licensee”. But it both be said deal with modification matter, very subject nature from the require hearing, unless the li and both to similarly situated will be simi- that others change. censee affected consents to only persons who larly affected, and the true, notwithstanding (f) This is Section 303 are other licensees and be-so affected is, authority principal grant in its as is applicants. later, primarily rule-making or noted section, proviso “legislative” paramount my judgment this fact is aspect a limitation the Commis importance, determining what is both power. rule-making sion’s frequencies, by “changes in the au- meant thorized * ** opera- regard merely power, times of duplicate provision the nature and character or alternative tion” and to Sec- required, each a matter in funda- 312(b), protection licensee *8 dispute Conceding, as I think here. his license is to be modified adverse- mental when may, 309(a) (b) Sections and ly, practically superfluous. we would make it is, sections, one-party primarily ignore primary clause are This would also ordinarily party in addition one 303(f), Section as well as involve purpose and hearings itself, and express in the Commission differences terms of two to chiefly, though not neces- merely they provide are proviso inci- sections.13 The an is sarily exclusively, determining for matters provision, main or limitation of the dent between the Commis- power in instance grant is a to the the first which Commis- applicant in the one and it regulations case “make such not incon- sion and sion to prospect having may licensee necessary deem under law as it sistent with * * * power, quencies, 312(b) or is cast in terms of no Section .authorized broadly operation,” cause,” specifying not with times “to tice and show given operator as of station does li whose notice modification 312(b). 303(f) 303(f) lim- Section is not Section is to he modified. Section cense changes express provision in the li- in terms to made for ited no notice and itself, 312(b) “public hearing” merely requires is so while Section cense in its terms. not limited station licensee” does consent “the supra, change. 303(f) proposed and circa note note See Section “changes supra. only in fre- deals also other, required to But is in the in its it not changed discretion. terms his license apparent no such admit it becomes 303(f) is outset them until Section from the essentially may one affected. also one-sided matter. affecting issues which the start raises from very thing, how- strange It would be a Commission, per- also other only the but ever, notice Congress for to insist opposed among are sons who themselves as merely between hearing lie when the issues not, even in the The conflict interest. party, and one Commission-applicant, merely stage, initial entirely licensee, plicant ignore 309(a), or Commission-licen- in Section provision much fail make similar see, It is Commission- 312(b). in Section three-party highly situa- more controversial licensee-applicant or Commission-licensee- strange for even more tion. It would be three-way, turn licensee. safeguards one of guarantee these ways. three out to be adverse situation, parties against in the latter party in- and the other both the Commission my opinion In fact makes paramount terested, or leave deny it latter provided hearing 303(f) Section entirely within his be heard hearing or essentially stage different kind of discretion, especial- unlimited in hearing provided from those only ad- ly be the one when he is or 309(a) In the first 312(b). Sections versely my opinion Congress affected. place, hearing from the it differentiates that 309(a) and Framing neither. Sections did pre- provided 312(b) Section one conflicts, one-way it left primarily for duplicate becoming vents from mere complex multiple-party situation the more issues, If their alternative of the latter. 303(f). And to be dealt with identical, purposes application were so, doing gave while there be no need two such ex- for would power, it large rule-making discretion and plicit, inconsistent, pro- and to some extent up- provided specifically for mere fact visions changes relating to the most proposed modifications which involved important interference and causes of 312(b) under Section are be- dispute between licensees or conflict and spec- broader and more inclusive those than applicants. section tween them and explain ified in Section distinguishable Sections therefore is duplicate provision, since the latter includes necessarily bringing 309(a) 312(b), important respects the most in which modi- parties together private start from the might be required fication interests, as the Com- clashing well as (b). beyond this, But two sections have odds, each mission with which likely entirely are to have different con- disposition providing and in sequences. Many of the modifications Congress, providing issues. these under Section 312 only did not intend (b) affecting only relate to matters and be parties have notice Commission and particular licensee, heard.14 words, do affect other licensees applicants. They such things aptly drawn, particu- involve is not The section equipment, regulations larly observance language provides etc., broadcasting, essentially only superficial Commission- hearing. reading would Hence, only licensee issues and such. lead the conclusion one of the cases, these there parties need for interested to a hear- giving participate read, notice and merely ing. Literally the section re- persons. provision Consequently for quires hearing changes specified if the *9 such notice and was not in- the to be made “without the consent of cluded and the provides Section pro- provision, these There is station licensee.” no as only for person necessarily tections the 309(a) is 312(a), (b), and there in Sections and affected, ordinarily any specified the licensee person, faced with for notice or to be possible said, only modification the terms of his li- heard. is im- As has it others, cense. not It does exclude plication the condition “the station gives right no them in at this stage. pro- to come failure to consent to licensee’s” the The permit protections Commission them posed change that his in do so these support request arguments This view derives some oral either also provisions recognizing right party,” explicitly 409(a), from the Section the person supra, party. note 11 that “In all cases more than one heard supplied.) (Italics an examiner the Commission shall hear respects “of,” is, can the section’s “in” within between whether found much, however, necessary, “change terms. in frequency” “change So is means “public frequency,” unless the is to be hearing” one if the two forms not which no would mean same thing one but and that well what right appear participate. have the one as what the other The asserts. con- trolling principles great- of construction important, isWhat more section does prepositional er hairsplittings. than in identify not terms licensee” “station interpretation, though whose hearing consent is if is dis- possible upon pensed who, ignore by implication, language, is en- would hearing subject titled to fundamental if he not consent. character of the does Presumably, matter though by and of the inference, he controversies as well is or interests; conflict of section’s licensee in make the of whose terms provision one-sided; license exclude change hearing some proposed. is But the private and, one say parties section does in explicitly. not interested In this respect instances, case, only some one also it differs in terms from Section affected; 312(b). make section a expressly latter relates license,” merely duplicate narrower modification Section pro- “station making (b), taking hibits without account of dif- order until “the holder of terms, purposes ordinarily such ferences outstanding license” is notice situations; applicable and, finally, con- so No explicit such terms strued, there would Section be serious con- 303(f). It nowhere mentions cerning validity. the section’s That con- “station license” or li- “modification” of incongruous cense. struction create the situ- It does licensee,” refer to “station applicant ation that way, in no for a license except by but tion, possible implica- facing licensee literal “modification” would identify him as “holder of be entitled of the Act to hear- outstanding terms license” which is to be ing action, adverse terms, before but a licensee “modified” in or exclude the licensee equally seriously or more operations whose “affected” seriously more affected, granting chang- another’s even destroyed, by favorable license changes ing favorably another’s would have made in operator’s another license. except no to be heard short, the Commis- In section 303(f) is drawn in dif- Logically sion’s discretion. this would and, ferent terms my opinion, for dif- true, notwithstanding the interference thus purposes, ferent 312(a), from Section (b). might blot created out the sta- Literally “affected” the hearing provision relates to operations. tion’s commer- “changes this view a frequencies, authorized * * * wipe nonprofit cial could out a
power,
operation,”
times of
and,
completely by licensed
un-
interference
to “modification” of
li-
outstanding
argument
the Commission’s
der
that finan-
Literally
censes.
also it
the con-
injury
only
cial
appeal,
basis’ for
sent
licensee,”
“of the station
if
change
latter would have no
be-
to be heard
made
without
fore either
Commission or
courts.
given.
such consent is
it does not
injured
If the
station were also
commer-
specify
whether the licensee is one in the
injury,
cial one
could show financial
of whose
terms
license
change
is to be
appeal,
could
but would have
no
only
made or one
by change
made
before
be heard
If
Commission.
in another’s
license
granting
a new
injury,
could
show financial
it would be
application. This further narrows the cru-
nonprofit
with the
boat
station.
the same
issue.
cial
contrary
only person
Such a construction would run
asserts the
every
entitled to
policy
provision
under
the station
licensee in
whose
Act. Not
license
change
Hence,
itself,
view,
made.
(f)
309(a)
but in Sections
and 312
KOA
dispenses
(a),
had
the statute
heard,
(b),
with hear-
section
since there
change
was no
the action to be
in its
taken is
license and
favorable
person,
applicant
licensee,
it continued free
operate
on the
same
*10
power
frequency,
directly
and time
interests are
immediate-
after
whose
WHDH’s
application
granted
ly
provide
was
as
involved.
It
is zealous to
before.
This
is presented
vigor
view
with
hearing
the
is
when
decision
or
be ad-
combatted
equal
Yet,
situation,
force. Much
argument
the
him.
of
verse to
KOA
pedantically
the
only
adversely
revolved
about
difference
is the
The
affected.
303(f)
my judgment
In
Section
therefore
It
is
action
favorable to WHDH.
construction,
given
be
the narrow
existing cannot
merely
applicant.
an
an
KOA was
purpose
duplicating
function
merely
the
two,
station. As
if either
between the
the Commis-
312(b),
of Section
protection,
it would
greater
entitled to the
to
In addition
contend.
sion
WHDH
or
seem to be
taken
KOA.
If the action
the
injustice, contradiction
WHDH,
obvious
proposed had. been
to
adverse
to
policy, failure
hearing
general
statute’s
in fact
statutory
hearing,
right
had a
to
two
of the
differences
take account
the
respected
it. Yet when
subject matter
language,
sections in
point
the
reached
decision
with,
dealt
of the controversies
character
KOA,
WHDH’s
and adverse
favor
to
recognize
to
refuses
the
view
Commission’s
hear-
denied that the latter had
to
than
rather
of interference
the fact
ing, whether
statutory or constitutional.
li-
terms of
change
mere literal
the
perverts
policy
Act.
hearing
of the
is what causes harm and chaos
cense
is
sta-.
dispense
That
de-
when
affected,
industry,
and to
tions
affected,
cision is
favorable to the one
accepted,
public.
raise
If
it would also
require it
is adverse.
when it
Section
concerning the
question
section’s
serious
(f)
exception.
specify
is no
It does 'not
validity,
minima
both for
of essential
want
terms who
shall
heard or have notice.
oppor-
in some
procedural
process
provides
But it
public hearing
want
tunity
and for
to be heard
as
“station licensee” does not consent to the
favoring
inter-
play
fair
essential
proposed change
frequency,
power or
unduly
Nei-
against another.
ested
as
say
time.
It does not
“the licensee whose
public
nor
preservation
ther
of the
interest
license is
Unquestion-
modified in terms.”
power and dis-
broad
ably
amply pro-
it includes
But he
him.
is
disposing
cretion to conduct its functions
by
312(b).
tected
Section
Whether he or
acceptance
public’s
business
station or stations affected will
interpretation
unfair.
of an
so doubtful and
injured depends,
not on the mere fact
altered,
his license is
but
how it
foregoing
necessarily
The
contem-
views
changed,
favorably
whether
to him
or to
plate
provided by
that the
posits
others.
Commission’s view
proviso,
303(f), under the
has in
such
who
“quasi-judicial”
application as this
rather
likely
hurt,
is hurt or
as
do-the
merely “legislative” effect.
than
That
sections,
whose letter of license is true,
my opinion, notwithstanding the
likely
altered
changed.
ignores
or
to be
power
principal grant of
is to
Section’s
realities,
consequences
effects and
in favor
this,
rules.
In
make
such an
formal and literal nature of the
the.
making
relating
rules
defined
change.
killeth;
spirit
“The letter
necessarily
changes
existing rights
affects
keepeth
303(f)
alive.” Section
does
them,
by changing
that is
true as if
in terms exclude the station
licensee who
change
were made
order
than
rather
injured by changes
li-
favorable to other
achieved,
When
effect
rule.
applicants.
censees or
Such licensees
by the one form of action
whether
or
only
injured
be the
or
other,
ordinary distinction between
(and
affected
the action.
such a case
“quasi-judicial”
“quasi-legislative” and
ac-
one),
posit hearing
this is
upon the want
way
gives
elementary
re-
before
consent of the licensee in
whose favor
destroyed
quirement
be not
or
deprive
is made would be
the decision
proviso
hearing. The
impaired without
re-
only person injured
capable
being
quires
change
whether
is in
through
him
injured,
public
he
“legislative”
“judicial.”
form
serves,
to be heard. Such a
Regulations
Ap-
and Their
B.
an in-
pervert
section into
view
plication
suppressing
protest
all
strument
likely
hurt,
except
person hurt
regu-
remains
consider
raise
possibly
lations,
applied,
he
his voice on
have been
vio-
appellant’s right
only,
to a
peal,
then
the Commission’s lated
view,
he
above to
to be
with the answer that
met
construction
every
before
mean that
licensee
right to be heard
it.
It would
who
way,
representation
minutely
however
in some
or re-
suppress also
change
primary purpose
motely,
is the
affected,
he
surmise that will
protect and
secure.
consider
statute
*11
is entitled
hearing
to a
Affirmatively,
or that
however,
the
op-
two
the
rules
must
judicial
full-panoplied
proceed-
differently.
erate
The practical
effect
ing.
questions
Further
(1)
are:
therefore
old
(Rule
one
105.19) was that affected
What
injury
interest or
must an
li-
parties
affected
licensees
became
disclosing in
have,
disclosed,
censee
petition
and how
this be
must
“substantial
interest
the sub-
in order for him
right
ject
to assert the
hear-
Upon
showing,
matter.”
interven-
ing;
(2)
by
what
hearing;
(3)
meant
effective,
became
right.
a matter of
So
may
does the
arise and when
may
having
rule
complied
taken as
properly
be asserted ?
implicit
requirements of Section
303(f).
Broadcasting
River
Red
Co. v.
may
Interference
only a
affect
few sta-
Comm., 1938,
Federal Communications
many.
tions
frequencies
With
crowded
App.D.C. 1,
cedure,
Federal
Part
Ibid.
(1940) 16ff., Gellhorn, Ad
*12
that,
ed,
exclusive
or
in
Commission’s
the
it
had
sufficient
it,
discretion,
aid
it
not be able to
because
permitted
not be
to intervene
the
for
to hear
furnishes no basis
refusal
participation
how its
failed to show
case,
the facts or on
the side
the
whether on
of
hearing
any
assistance
would
of
bought at
Efficiency
the
law.
is
the
involvedRe-
determination
issues
of
price
Cf. Bran
such a
to essential fairness.
former
ferring
practice under the
to the
States,
deis,
Myers
J.,
pro-
dissenting in
United
v.
105.19),
said
(Rule
is also
rule
52, 240,
L.Ed.
im-
272 U.S.
it made
S.Ct.
because
cedure
abolished
“was
applied
160. If
rule
been
therefore
has
possible an efficient administration
appar-
appellant in
this
this manner and with
ef
became
again,
Act.”
thus
And
“It
fect,
complaint.
it has
for
Whether
an insufficient
cause
ent
alone was
interest
**
Virtually
applied
it has been so
such con
*.
test
for intervention
sequence
remaining question.
many persons
is the
every application involves
* *
*
Most
interested.
who claim to be
important,
Upon that
facts are
com-
facilities in a
applications are for
questions
are
also
dis-
sta-
dr more
munity
already has one
which
public
closed its own
interest and
petition
may be
tions which
fearful
sufficiently.
both
In-
affectation of
* *
*
which cause
for
are
facilities
what
volved also
kind
existing stations.
interference to
electrical
hearing
entitled to have.
was
factors combine
many
In
both
situations
my opinion
improper
In
there was no
potentially interest-
number
increase the
hearing prior
denial of
the denial
**
every
practically
in-
*. In
persons
ed
petition
second
intervention
De-
filed
claim
persons
stance the
who
16, 1940,
gave
cember
Commission
whose
existing licensees
proceedings are
notice KOA
others
by protracted
promoted
interests
private
findings
grant-
and conclusions favorable to
long
possible
delay
application.
WHDH’s
Until
then it
competing facilities.
the establishment
wholly possible
application,
was
filed
wonder
facts
In view of these
there
309(a),
under Section
would be denied.
did not
rule
con-
that the
intervention
old
was,
proceeding
Until
time the
dispatch of business and
proper
duce ‘to the
pointed out, essentially one-way
been
mat-
”
justice.’
to the ends of
ter, involving questions primarily and initi-
best
applied, the rule
down at
So
comes
ally
applicant
between the
Commis-
efficiency,
controlling re-
without
had
sion.
It
been unable to decide from
interest, public
private,
how
gard to
application
applicant.
in favor of the
affected;
at worst to one of
far it
Accordingly,
required,
put
as the section
per-
Commission
mere convenience
the matter
and notified
down
is the
functions. That
this
forming its
gave
to others
WHDH.
also
notice
rule,
as it has
meaning
effect of
KOA,
affected, including
though
appears
ar-
applied,
from the
require
the section
did
terms
this.
briefs,
gument
but also from
petitioned
then
for intervention
key
support
decision
Commission’s
denied,
petition
a pe-
and the
was
as were
Hazelwood,
policy,
Application
re
In
action
tition to review this
and a motion
5698),
the undue reli-
(Docket
Inc.
appellant to dismiss the
on the
placed
argument
breadth
ance
did
ground it
not conform to
rules.
discretion
rule-
this was there
of the Com-
none of
abuse
making
action taken
power, and from the
powers or discretion or
mission’s
violation
this case.
statutory
constitutional
stage
posits
rights.
A
In this initial
the burden
basic
was
rule
applicant
exclusively upon mere
to convince the Commis-
convenience
applica-
prima
granting its
petition-
facie that
to the
or whether the
sion
Commission
interest. The
er’s
“will be of
would be
assistance
issues,”
determining
leaving
very
the matter
fact
set
discretion,
solely
indication the
in its
a tentative
decision
determined
applicant.17
be adverse
a denial of
not reasonable.
laboring
had therefore
oar.
That
be inconvenient WHDH
convinced the Commis-
time-consuming
body
such a
and until it
to hear Unless
substantially
apparently
ground,
valid
interested
affect-
there was
sion
Attorney
cedure,
Monograph
3, Federal Communications
Part
Gener-
(1940) 13.
Pro-
al’s
on Administrative
Committee
*13
case,
the
file
prima
granting
facie
mitted it to
brief amicus curiae.
It
least a
participated
so
application,
harm
or could be did
and
no
was done
in this character in
Hence,
the
argument upon
until
oral
done
stations.
the
to other
appeared
stage
adopting
the total
proposed findings.
from this initial
the
On March
27, 1941,
process
proposed
that some harm to
findings
administrative
and conclu
similarly
possibly
adopted by
situated
sions
KOA and
were
others
a vote of three to
two,
result,
was no es-
probably
partici
dr
there
would
two Commissioners not
process
pating.
in
sential
in
The members voting
nega
reason either
due
(a)
303 tive filed
provisions
vigorous dissenting opinion.
and
of Sections
1941, F.C.C.Rep.
then the
(f)
bringing
in. Until
-.
them
decision be
discretion,
came
by
as
effective
April
entitled in its
formal order
Commission was
Appellant’s
1941.
petition
contemplated,
rehearing
treat
309(a)
exclusively
was then
appeal
matter as
between itself
denied
one
and
and this
followed.
by way
applicant.
of conces-
So much
stage
the final
decisive
of the
general
sion,
terms and the
not
action,
therefore,
Commission’s
statute,
efficiency
scheme
but also to
party, notwithstanding
was excluded as
functions,
performing
Commission’s
permitted
appear
brief
to file a
is reasonable.
argument
oral
as amicus curiae. Unless
gave
these
it all
which it
concessions
statute,
Concomitant
this view of the
by way
was entitled
the exclu-
however,
requirement
is the
that the conclu-
justified.
sion
as
This is be-
cannot stand
by
sions
law
and fact reached
Com-
cause the basis on which it was made was
stage, concerning
mission in the initial
is-
necessary
regard
not valid.
It
parties
sues which
sub-
affect other
invalid, since, may
Section 1.102 as
tentative,
stantially,
not final and
possible
apply
it with valid effect. How-
conclusive,
were
favorable to
ever,
ap-
the manner
has been
This,
fact,
applicant.
appears
to have
invalid,
plied generally
in this case is
observed,
findings
since the
and con-
being contrary
both to Section
“proposed,”
clusions were issued as
not as
elementary
also to
possibly
the Act
decisive,
concerning
and notice
final
play required
process.
fair
proposed
given
per-
action was
to affected
sons.
Conceding
its sub-
character,
denying
stantial
its substan-
however,
point,
At this
the clash between
tial relation to
interest
or that
WHDH,
the interests of KOA and
appellant’s private
this as
well
constituencies,
respective public
their
be-
adversely
order,
might be
affected
apparent,
possibility
with the
of the
came
recognize appellant
Commission refused to
had
iatter’s
WHDH
succeeded in
success.
petition
ground
did not
discharging
burden. The neces-
its initial
disclose facts
to show how its
sary effect of action in its favor would be to
proceedings
helpful
would be
to or
create electrical interference with KOA and
would assist the Commission
deciding
require
also to
its reclassification under the
issues.
It
then belied
action
an-
then,
stage,
rules. At this
Commission’s
nouncing
in the order of denial that
longer primarily
become
matter had
one
pellant might
a brief
file
amicus
curiae.
Commission,
between WHDH and the
them,
primarily between
on the
one
In view of the basis for the Commission’s
hand,
stations adverse-
action,
and KOA
other
perhaps
necessary
it is
in-
affected,
Though
proc-
ly
on the other.
quire
petition,
under some
309(a)
ess initiated under Section
would
interpretation
or some other
rule
complete
final and
until
not become
con-
present one,
sufficient.
made,
provi-
clusive decision had been
reason,
for an invalid
was denied
and that
303(f) then first
sions of Section
came com-
require
in itself is
sufficient
error
re-
overlapping
pellingly
play,
into
the final versal,
unless its effects were cured
phase
Section 309
allowing
as amicus
(a),
substantially
curiae.
de-
petition, however,
more than com-
opportunity
present
cision be
rule, apart
plied with the
from the invalid
case.
side of the
interpretation.
petitioner’s
set
forth
clear
point
At
interest as dominant
channel station
filed its second
intervention,
kc,
petition
frequency
on the
with freedom
was denied
interference,
However,
January
night;
per-
granting
order
actually
right.
deprived
substantial
elec-
of no
would cause
WHDH’s
interference;
refinement
require change
presents the final
trical
of the issue.
frequency under
classification of KOA’s
rules;
degrada-
result
peti-
claims too much.
preju-
frequency 830 kc
tion of service on
tion,
“re-
among
things, sought to
the United
rights of
priority
dicial to the
peti-
open
proceeding
to afford
order
Regional
American
States under
North
evi-
tioner
dence,
to introduce
*14
against
discriminate
Agreement;
Broadcast
witnesses,
all
to cross-examine
in favor
service to rural listeners and
proceed-
fully
participate
in the
otherwise
served;
stated
already
ones
well
urban
proposed find-
ings; upon such record file
repeat. This
necessary
reasons not
to
other
admittedly
law; have
ings
of fact and conclusions
the sub-
show
sufficient to
was
proposed
any
right
exceptions
to
to
file
interest,
petitioner’s
stantial character
;
issued
Commission decision thereafter
to
relation
substantial
and in addition its
request
argument
oral
to
service
public
including
thereto;
exceptions
decisions and
its
areas,
against
possible
rural
discrimination
respects
in the im-
participate fully
in all
pos-
regions,
in
of urban
them favor
application”
portant
in the
issues involved
rights
injury
priority
sible
to
nation’s
not
short, appellant sought
of WHDH.
In
treaty,
together
under
international
participate
party
to
the final
as
possible
probable substantial
in-
process
under Sec-
stage
crucial
privately
appellant
and to
jury both to
repeat
reopen,
303(f),
tion
but also to
appearing,
interest. So much
Sec-
participate
stage
initial
respect with
petition complied
every
party in
309(a)
fully
tion
as
would
1.102,
except the construction
judicial proceedings
equity with
to the
will
of assistance
“intervention
evidence,
present
to
cross-examine
“will
judgment”
in its
own
witnesses,
including all who had been
for the Commission.”
be convenient
petition
exceptions, submit
previously,
heard
take
rule in
compliedwith the
therefore
part
argument,
etc. Such
findings,’take
aspects,
have
all its valid
a view of the
would convert
granted.
judicial trial in the
essentially
them
into a
novo,
stage
reexamination de
so
final
however,
argues,
The Commission
demand,
appellant might
far
of issues
appellant
accorded in substance
was
initial one.
presented
and matters
notwithstanding it
right
full
to
right
my judgment
In
no such extensive
first,
because,
party,
excluded
as a
contemplated
participation
is
Sec-
appear
to
and to
was
in
file a brief
allowed
section,
or is re-
curiae; and,
as amicus
argument
oral
quired by
process, and
enforce
due
to
had,
second,
appellant
1.195
under Rule
scheme,
statutory
pervert
con-
exercise,
present
but failed
to
to
requirement
vert
of fair administra-
sub-
as it
choose to
such evidence
judicial pro-
for a
tive
into one
provides
maintaining
Rule 1.195
mit.
cedure,
bring
clogging
about a
secretary
a record
the office
work and functions incon-
Commission’s
relating to
received
all communications
nature, complexity
their
sistent with
any application, together with
the merits of
performance.
addresses
senders.
the names and
set,
appellant
sec-
Both the Commission and
When the date for
is
posi-
far in their
gone
have
notify
persons
these
therefore
too
retary
to
hand, appellant’s right
tions. On the
they
to
will
absolutely
not
hearing is
conditioned
Under the rule
give
evidence.
and
are
discretion, as it would
any rele-
precluded
giving
“from
in the Commission’s
participation
argument
competent testimony”
limited
because
vant
facts
presenting
and in
justify
amicus curiae
lack “a sufficient
as
under the
they
* * *
”
* *
*
1.195,
provisions
of Rule
party.
intervention as
public.
members of the
Its
plicable to all
things
these
view of
so
had,
waived,
participate is to do
as a matter
op-
says appellant
full
(cid:127)
party. That
evidence,
present
right,
grace,
and as a
portunity
and had
true,
extent of
notwithstanding the
argument,
opportunity for
oral
full
also
and
effect,
grace
thus,
as matter
written, upon
legal
participation allowed
issues—
nearly
substantially
Be
appear upon
discretion
both
facts and or
entitled
what
identical with
therefore
the law.
asserts
to
hand,
tic
right.
interest,”
have as a matter
On the
formulae
of “substantial
“ad-
versely affected,”
full-
not entitled
etc. So much
least
judicial
dress
dictate
would seem
proceeding
conceded,
properly
to be
regard
extent
participation,
discretion,
of its
without
but to the
necessity
reasonable limitations which
that it be
distinguish
enabled to
imposed by
achieve or- with
the Commission to
certainty
reasonable
between
derly
hearings.
unduly
and not
extended
entitled
come in
as of
and others
must mark not
Some middle
therefore
ground
so
claiming
entitled but
this status on
grounds
appellant’s right
boundary
out the
between
insufficient once the actual facts of
power.
and the Commission’s
situation
apparent.
become
If at
difficulty,
times there
there is in
dispose
enough
It would be
judicial proceedings,
determining
what
appeal
excluded from
merely
are basic
distinguished
appearing
as a matter
and allowed
facts,
evidentiary
reasonable latitude to-
grace.
limited
as a matter of
*15
important
ward including some of the more
this,
more,
But to do
would leave
without
of the latter
resolve
will
it.
error if
The
the further
problems
in doubt. Two
any
should be made
the side of stat-
distinguished,
must be
one the
ing more rather
than less than
be
par-
appellant’s right
determination of
actually necessary.
ticipate,
right.
the extent
the other
of that
problem,
The other
involving the extent
The former is not a matter
discretion
participate,
properly
with-
appellant’s
with the Commission.
inOne
in the Commission’s discretion under its
position must be heard
issues such as
power,
broad rule-making
reasonably exer-
proceeding
stage,
this
final
involved
cised, beyond a few essential
re-
minima
303(f).
under
is not
Section
quired by elementary
play.
notions of fair
inconsistent with the Commission’s re-
Neither the statute nor the Fifth Amend-
quiring its
shown
some-
existence to be
prescribes
ment
specifically what
these
general allegations
thing more
mere
than
Nor
minima are.
has it been made clear
interested,
substantially
holder
by judicial decision what constitutes a
affected,
substantially
will
public
and that the
be
compliance
process
minimum
with
due
will be like-
interest is involved and
way
hearing.
administrative
Pre-
wise affected. If this were all that could
sumably
vary
will
to a
considerable
required, practically everyone
be
affected
extent with the nature
substantive
way, immediately
remotely, sub-
right,
complexity
the character and
slightly,
his
stantially or
could come
issues,
the kinds of evidence and fac-
option by alleging
generalities.
these
On
material,19
particular body
tual
or of-
hand,
it is not necessary
to set
ficial, and the administrative functions in-
pre-
forth the evidence which would be
words,
volved in the
In other
es-
merits,
requiring
sented on the
nor would
sential fairness of
some re-
bears
Between these
be reasonable.
two ex-
factors,
certain,
beyond
lation to these
though very
may
but
ground may
tremes middle
a
found
few,
requirements
which
basic
enable the Commission to determine that
hearings,
fair
be common to all
injury, public
the interest and the
parties
extent of
private, are
real rather
substantial and
than
regulation by
a matter
stat-
others is
visionary,
insubstantial or
stantially
and are sub-
properly
au-
rule-making
ute or
thority.
conferred
Perhaps
analogy
related.
judicial proceedings
can
taken from
required, in
findings
which
of fact are
The
Commission deals
Communications
evidentiary
complex
highly
distinctions which involve
technical and
en-
facts,
facts
re-
gineering
lations,
basic
and ultimate facts.18
and economic functions and
highly organized
There could be no undue limitation of
crowded
a
requiring
industry
primarily public
existence
serving
posited
private
it is
incen-
strongly
the ultimate facts
which
but
regulatory
to be shown
statement of such basic
are both
Its functions
tive.
facts,
quasi-judicial.
single
Its action in a
so that
persons,
many
more than the vacuis-
guided by something
case often affects
Broadcasting
Requirement
Saginaw
Davis,
Op-
v. Federal
Co.
See
App.D.
portunity
Comm.,
to be Heard in
Administra-
(1942)
Kfil
compel
there-
cretion
hearings
reproduction
licensees
and others.
Its
of all testi-
ones,
mony
produced.
then
many-party
fore
which
tend to be
Such a view would
par-
force the
appearing
large
each
as
one
seeks
Commission to incur the waste of
ticipation
holding
issues
possible.
preliminary
Often certain
hearing upon the
some,
parties. Yet
affect
not other
under
309(a)
but
and then
in,
party
tendency
repeating
once
come
his
has
all
had been done in it
when it
goes
apparent,
to have a
on. Cross-
hand in all
becomes
pro-
from the
posed
especially
itself to abuse
examination
lends
determination
favorable to the
op- plicant,
in such a situation.20
does the
So
final stage
testimony.21
portunity
present expert
must
gone through
Consequently, in
the funda- with in order
contrast with
appellant’s
afford
in,
present
position
mental
to come'
to be
his
to be heard.
heard,
way
much in the
contemplates
statute
no such waste-
discretion must be conceded
Com-
process,
ful
my opinion
and in
process
controlling the extent to
mission
parties
require
does not
Adequate protection
it.
participate.
may be allowed to
rights can be secured with-
keeping,
objective
this,
out
and in full consonance with the
hearings
is to
manageable
within
bounds
statutory scheme.
contemplates,
achieved,
therefore,
not as
said,
has been
a preliminary hearing in
attempted by
right-
excluding
applicant
to be
in,
controlling
fully
should come
present
private party.
become
through-
regulation the extent
reasonable
*16
final, if the decision is
him.
adverse to
they may
part.
which
take
As to this
to
so,
harmed,
If
others affected will not be
may
rightfully
Commission has and
presence
stage
their
in this
specific
authority in
exercise much
various
clutter
proceedings
and the record.
ways.
not,
If
then
hearing
to
hearing
The essential minima for fair
arises
303(f).
nothing
under Section
But
op-
would seem
reasonable
to include
in the
in the
act or
Constitution
portunity
present
concerning
entirely
to
evidence
this to
de
enough
be
novo.
It is
disputed
upon
argument
adequate.23
issues of fact
that
proper
it be
At the
stage
tendering
intervention,
issues
affecting
party
of law
pre-
record in the
them,
party
liminary
do both as a
to the
hearing
may
to
has been made.
It
proceeding,
merely
not
in the character of
made
available to the intervenor. From
present
multiplicity
on sufferance
favor.
In the
or
of evidence and of'issues
respect
mean,
require
neither
specify,
however does this
it is not unfair to
him to
think,
may
party
way,
seems to
that a
least
general
the issues he
at
require retracing
steps
meet,
proposes
all
taken before the
the evidence he wishes
contradict,
stage
at which
come in arises
concerning
his
and other matters
may
throughout
or that he
wander
objection.
which he wishes to raise
This
upon
parties,
affecting other
particularity,
record
issues
be done with
not
should
substantially.22 merely by
charge against
but not himself
broadside
therefore,
mean,
case,
previous proceedings.
it does not
entire
With the
assumed,
pellant
require
self-limited,
that
it could
it will then
issues so
whether,
prior
proceedings
entire
to the time of its
determine
Commission to
discretion,
reopened
quasi-judicial
proper
intervention to
with the exercise of its
part
cross-examine all wit-
right on
the intervenor’s
its
limited,
produc-
preliminary stage
relation to the
nesses heard
further
evidence, cross-examination,
and, apparently,
argu-
309(a)
in its dis-
body
nized rule
Monograph,
ernmental
pra
20 id.
give
note
This seems
Particularly
satisfied
technical
disinterested
1103.
at technical
action
at
op.
if at
’
engineering
issues or
16, 17.
implicit
cit.
when the
becomes
Monograph,
experts,
supra
process
expert opinion
time
questions.
staff,
note
final,
agency
such as the
requirements
before
op.
well-recog
competent
hearings
cit.
at 19.
has a
upon
gov
See
su
primarily
involved. See
directly
judicial action,
ed
initial
are allowed either
excluded
interests
;
at
Ibid.
Monograph, op. cit.,
1104, 1136-40,
stages
or
become
until a later
immediately
of a
interests of others
Davis,
directly
therefore
and authorities cit
op.
phase
administrative or
affected in the
cit.
supra
immediately
supra
note
may
involve
note
not
all of the
petition
second
hearing.
demanded in its
incidents of
relief
ment
other normal
petition
restrict-
may be
to intervene
party
In this manner each
participation rehearing,
fairly
issues
another
ed
case,
required,
allowed be
reason-
than
in the Commission’s
pertinent
rather
to his
discretion,
up-
itself
ably
confine
through
roam
the entire
exercised
to
on matters relevant
others,
indicated,
not to
out with
point
as has been
and to
he
portions
reasonable
concerning
particularity the
himself or matters
Perhaps
previous proceedings
considerable
objection.
features of the
has no
part
may be accom- wishes to
challenge.
such confinement
by
appropriate
plished
the issuance of
amount,
does not
in substance
by that
general regulations.
effect,
acceptance
of the Commission’s
case,
particular
method or
action
view that
can
excluded for
affording the
the result
be achieved
failure
set
forth facts
its
to show
hearing,
adequate
with-
intervenor fair and
intervention will be of
assistance to
him
permitting
at the
time
out
same
deciding
Commission in
That
the issues.
all
nullify
away
run
pertinent
factor is
how far
intervention,
un-
gone
has
before
appellant may participate,
perhaps
though
fair
beyond what
duly extend the
not conclusive of it. It is
the criterion
rights and the
protection of his
fact,
may,
to be heard.
require.
is,
exactly
opposite effect,
have
necessary to extend the discus
legal
may present
intervention
facts or
suf
shown
sion further.
tentatively
argument, contrary to
ac-
those
in.
It should
ficiently
right to come
Commission,
cepted by the
make
which will
so,
party
to do
been allowed
have
to
the Commission
its
purpose
is one
decision more
That
difficult.
merely
a friend of
proceeding,
Nor
this view
public.
member of
aor
present
posit the right to be
and to take
true,
the extent
notwithstanding
That
part
exercise of
the Commission’s
participation actually
allowed
es-
discretion
With that
favor.
was en
substantially all
tablished, every
protection,
other has
*17
have, though
statement it
titled to
attempted
is
there
some
if
violation
that this
true. That
is not intimated
was
respect
of discretion
exercise
is
question need not be determined.
corrected,
be-
by argument
it
first
present
party, and
a
as
thing
to be
as
itself,
fore the
not
Commission
it is
if
is
right.
a
another to
matter of
there,
by appeal.
corrected
then
still
upon
It is
favor or
sufferance.
attempting
Without
therefore to blue-
particular
heard
a
fashion
another to be
procedure
print
to be
with
followed
particular
stage.,
time or
at a
partici-
respect
appellant’s
to the extent of
arose,
Appellant’s right
not when the
leave
pation
another
we
applica
preliminary proceedings upon the
judg-
to
matters
begun
were
nor when the matter was
tion
ment,
properly
subject
belong,
where
prior
hearing, nor
set for
thereafter
require-
compliance
only to
with the basic
“Proposed Findings
of
issuance of
opportun-
play
adequate
ments of fair
Conclusions”;
when these
Fact and
ity to be heard.
time, upon the
issued. At that
show
were
appellant
excluding
For
error
petition,
ing made in
should
party
participation as a
in the final
recognized
as a
and al
have been
stage of
proceeding,
and controversial
contrary
participate
thereafter
that
lowed
requirement
of Section
basis.24
Act, the order
be re-
303(f) of the
must
right
participate,
of its
The extent
versed,
appellant
directions to afford
with
however,
largely within the
discre
accordance with
opportunity for
Commission, having
regard
tion of
that
provisions of
section.
principles above stated.
to the
right
as a
Reversed
remanded.
not entitled
matter of
909;
Comment, Ne-
is not
as
S.Ct.
78 L.Ed.
statement
intended
cessity
Hearing
Enforcing
meaning
adequate hearing might not
Or-
Before
stage,
at
Commission
afforded
a later
der
Interstate Commerce
have been
1300;
op.
Davis,
appropriate
petition
(1934)
regulation,
cit.
Yale L.J.
rehearing.
supra
Il
at 1136-40.
Cf. United States
note
v.
Ry., 1934,
linois Central
U.S.
VINSON,
GRONER,
(con-
application
Com
J.,
Here the
Matheson
C.
J.
pany
is
for an extension
its facilities
curring)
.
said,
application,
we have
effect an
Judges
concur
GRONER and VINSON
will,
of which
substance
granting
in the conclusion of
RUTLEDGE
Judge
appel
regarded, modify the license
ap-
only
circumstances,
think Sec
lant.
we
(2)
peal
402(b)
this court under
both
312(b)
applicable
Act,
(2), but
402(b)
47 U.S.C.A. §
Company were
appellant and the Matheson
proceed-
also
intervene
participate
proceedings
in the
entitled
are, there-
ing before the Commission. We
parties
rights
parties. We
fore,
and with the
agreement
RUT-
Judge
think the statute
contemplates
case
reversed
LEDGE that
should be
de
right,
although
licensee’s
limited
hearing.
remanded
further
destroyed
feasible, shall not be modified or
importance
prin-
In view of the
without a
To allow
desirable,
ciples involved, we
consider
of fact have
findings
after
however,
separate
to set out in a
our
word
par
deprive appellant of
been made is to
those
meaning
views
and effect of
ticipation
period
during
crucial
all
Sections of the Act
which we
is,
evidence
proceeding
when the
—that
agree the decision must turn.
up.
made
being
taken and the record
being
agreement
Judge
We are in
RUT-
be
Appellant’s
from the
interest existed
303(f),
LEDGE that under Section
in
that that
enough
ginning,
303(f),
U.S.C.A.
§
by the
terest was considered
Commission.
par-
accorded
will
It is axiomatic that one whose
ticipate
party.
in the
as a
affected,
engage
only may
himself
opinion that,
we
are also
since in
affirma
protection, but
do so
in their
must
apparent
of this case
facts
every
proceed
tively
step
at
in the
granting of
the Mathe-
consequences of his de
take the
ings —or
Company, Inc.,
Radio
operators
son
Fed
Broadcasting Co. v.
Red River
fault.
Boston,
Station
result
WHDH
Commission, App.
eral Communications
amounts, if
regarded
in what
substance
no default
D.C.
drawn? from and Would that their aggrieved organization signal was that Methodist would be made a little worse preached Baptist WHDH’s doctrine modification. I think such an area; college allegation listening or that would not standing same show peal. songs appellant’s and cheers Since allegation should disturbed actual more, learning? accept of a rival institution of mean no it we can showing standing to appeal only if we case, present apparent in there It is waive the that rule are to pleadings fore, was that unless interference electrical against construed the pleader. likely injury to result in financial person aggrieved was not an If we take that step, I think we should And meaning within statute. affirm. I find nothing in the Communica- result, likely injury if financial tions Act which spelled fact licensee could out have that give appellant quite a hearing; the con- appeal. imposes no his reasons for trary. Yet the gave Commission judicial upon one seeks undue burden hearing. a It violated neither the Act decision, review of the Commission’s process. nor due clearly, unequivo require specify that he The Commission was and asked did precisely, alleged cally, the nature his modify the license of WHDH. Sec. 309 This, do.3 injury. appellant has failed to (a) of provides the Communications Act appeal. Consequently, I would dismiss in effect that may grant, EDGERTON, (dis- Associate though .may deny, an Justice senting). modification without a Most modifications of affect other “person licenses li- aggrieved I think that or whose censees, Congress and easily might have interests affected” contem- required that other licensees who stand to injury distinguished plates a substantial lose given a hearing. It did not. So trifling negligible one. I should from a therefore, concerned, far as the Act is suppose interference affect necessary. True, Sec. signal adversely, reception so of KOA’s area, the licensee of station be important large over so if the Commission injury give as to cause substantial change “frequencies, station’s author- appeal, whether or standing to * * * opera- ized power, or times of loss. it caused financial inter- term; applicable tion.” But that section is not be of ference is an elastic here, pow- frequency, neither the since minimal any degree. interference is Some er, KOA, appellant’s the time of Appellant’s nor sta- practically harmless. tion, changed. Similarly, being Sec. appeal, though alleges “sub- notice of 312(b) forbids “modification” license alleges of its stantial modification” the licensee to show without injury any nor facts substantial neither why license not be cause fied; modi- injury. al- constitute substantial applicable, that section injurious than “inter- nothing leges more being is not since license modi- in areas where KOA’s ference KOA particular.1 merely Its license fied in is now interference free.” signal operate specified authorized with supported if it were allegation would time, area, frequency, power, equipment, thousands small some shown Denver, operate it to with the same still authorizes and of no actual from of miles frequency, power, equipment, and time. importance appellant, potential appellant’s frequency or say did at inter- rare To listeners could few interference, being “changed” or “modified” feeble license is get, without vals injury particular to a threat show Federal Stuart v. distinguished own, 265, 267, App.D.C. F.2d Comm., Co., 790; public’s 788, the administra- Lukens v. Steel Perkins 113, 125, law.” . 60 S.Ct. U.S. including respondents (f), deals a sum- “Nor can vin- 1108: See. L.Ed. way mary “powers any general with the and duties of interest which the dicate including (b), Sec. in the construction Commission.” way Secretary a detailed and which must deals in “revocation Act process. Respond- political of licenses and modification” left hearing.” standing court, ents, must “notice to have
557
speech.
iant’s case
inapposite figure
me
of
is somewhat similar
that of
seems to
an
to
rules,
a
until
licensed
operator
automobile
It
true
the Commission’s
is
these demand that he
hearing
of
a
before
changed
were
in
course
be
speed
I
stronger
limits
proceedings,
only one Class
are reduced.
stated that
is
frequency
respect;
is,
appellant
in
assigned”
“will
particular
not,
operator
kilocycles.
of
is
more
of 850
But
statement
automobile
anyone
policy
likely
was
purpose or
than
else
be affected
the Commission’s
to
to,
appel
proposed.
incorporated,
change
is
referred
But it weaker
not,
respect;
appellant
can
another
license. Therefore
license
lant’s
not,
construction,
is,
operator
do
the automobile
forbidden to
unless
liberal
a most
change
ex
any
to
after the
he was free
do
regarded
as intended
make
what
to
change.
of
appellant,
Only
consequences
before the
grant
clusive
to
appellant’s activities,
time.
activi-
equipment,
frequency, power, or
of
themselves,
change
Appellant’s
ties
are affected
license is no more exclusive
respect
than
the Commission has made in the
frequency, power,
to
and time
which
Appellant
license of
in sub-
respect
equipment.
to
settled
WHDH.
°And the
stantially
position
strict con
same
owner
rule
not a liberal
a
liquor
garage
of
a licensed
store who
struction
franchises
and licenses.2 of
Moreover,
competition by the
provides
subjected
new
Section 301
Act
to
of
* * *
a
his
licensing
“no
license
con
similar business nearer
shall be
possible
beyond
any right,
the own than would have been
under
strued to create
terms, conditions,
periods
regulations
the li
were
force
cense,”
Supreme
license
issued.
and the
has said: his own
Court
policy
that no
“The
of the Act is clear
was,
as a matter
person
anything
nature
process,
entitled
some sort
property
grant
as a result of the
a
proceedings
are limited
ing
a license. Licenses
aspect, and
more
fact-finding
a
were
had
duration, may
years’
three
a maximum of
affect
interests than
likely to
revoked,
renewed.
and need
person.
those
presently occupied re
Thus the channels
hearing which should
not entitled
assignment
main free
a new
another
a trial in court.”5
“the incidents of
include
listening
in the interest of the
licensee
being
may be “heard” without
Persons
public.”3
intervene,
thus become
“permitted to
not,
no
my opin- parties.”6
was entitled to
The Constitution
reasonably adequate
ion,
hear-
than
give
to a full
more
prac-
reasonably
type,
protect its interests and
ing, of the trial
public;
and the
In the
the Commission.
absence ticable
before
words,
opportunity to
statute,
a fair
are usual-
licensing authorities
arguments
the Com-
duty
give any
bring
of hear-
its facts
ly
sort
hear-
It had
changing rules mission’s attention.7
license holders before
ing to
need
grace
we
Appel-
of licenses.4
affect the value
—whether
320,
Railway
City
2
268,
317,
v.
of De
68
667.
44 S.Ct.
L.Ed.
Detroit United
‘hearing’
697,
39,
troit,
is the
evidence
S.Ct.
57 L.Ed.
“The
229
33
U.S.
Morgan
Light
argument.”
1056;
&
v.
v. United
Power
Co.
Piedmont
480,
906,
468,
States,
Graham,
56
193,
298 U.S.
S.Ct.
253 U.S.
40 S.Ct.
Town
453,
911,
1288.
80 L.Ed.
855.
64 L.Ed.
7
importer has
contested the
When
3
Comm. v.
Federal Communications
goods
the customs
valuation
his
Station,
Radio
309 U.S.
Bros.
Sanders
service, and exercises his
to have
693, 697,
642,
475,
470,
60
84 L.
S.Ct.
by appraisers,
them valued
869, 1037.
Ed.
appraisers
before the
“is not
tried
Corp.
4
Lacquer & Chemical
v.
Cf.
judi
in a suit
if it were
issue
697;
Mills, D.C.E.D.N.Y.,
22
af
F.2d
Hedden,
v.
tribunal.” Auffmordt
137
cial
Cir.,
700;
22 F.2d
certiorari
2
firmed
103,
323,
106,
310,
11
34 L.
U.S.
S.Ct.
617,
212,
48 S.Ct.
72 L.
denied
U.S.
If
“is afforded such
Ed.
he
notice
674.
733.
Ed.
give
him
enables
his
Products Co. v.
Norwegian Nitrogen
respect
his contention in
make
views
294,
goods,
317,
States,
316,
he cannot com
U.S.
of the value
his
United
Origet
Hedden,
350,
plain.”
358,
228,
v.
77 L.Ed.
U.S.
S.Ct.
Chicago
Case,
Junction
U.S.
15 S.Ct.
L.Ed. 130.
*22
do,
inquire.
majority
as the
Pursuant
the Commission’s
of the court
effect
1.195,
therefore,
Rule
it was
to that
the-Commission’s action
erroneous,
present
cramp
the administrative
evidence.
chose
to,
did, process
very
mold
permitted
to do so. It was
into the
forcing
file a brief
argument.
designed
oral
Noth-
to avoid.8 Since
make
which it
required.
primarily
more
It was not formal-
had to decide
ly
party,
aspects
incidentally
question
policy
and some
a trial at
law,
fact,
including opportunity
technique
for cross-ex-
of a trial
amination,
rule,
clumsy
may have been absent. To
have been
and wasteful.9
Process,
Federal
Cf.
Communications Comm. v.
istrative
51 Tale L.J.
Broadcasting
Co.,
Pottsville
309 U.S.
60 S.Ct.