Without notice to Radio Station WJR, which was licensed as a
Class I Station, the Federal Communications Commission granted
another party an application for a permit to construct a Class II
Station to broadcast on the same frequency previously used
exclusively by WJR. Alleging that the new station would cause
"objectionable interference" with its broadcast signal, WJR
petitioned for reconsideration of the application and for a hearing
to which it might be made a party or, in the alternative, that
final action on the application be postponed until the conclusion
of a pending "clear channel" proceeding, in which the Commission
was considering allowing WJR and other stations to increase their
power. The applicant challenged the legal sufficiency of WJR's
petition on the ground that WJR had not set forth facts which, if
accepted as true, would constitute interference with WJR's
"normally protected contour." The Commission denied WJR's petition
without oral argument.
Held:
1. The Commission was under no duty to WJR to postpone final
action on the application for the permit until it had disposed of
the "clear channel" proceeding. P.
337 U. S.
272.
2. The Due Process Clause of the Fifth Amendment did not require
that the Commission afford WJR an opportunity for oral argument
upon its petition for reconsideration of the application. Pp.
337 U. S.
272-285.
(a) Procedural due process under the Fifth Amendment does not
require that an opportunity for oral argument be afforded on every
question of law raised before a judicial or
quasi-judicial
tribunal, excepting such questions as may be involved in
interlocutory orders. Pp.
337 U. S.
274-277.
(b) The procedure provided by Congress in the Communications Act
for determination of the questions raised by WJR is not lacking in
due process. Pp.
337 U. S.
277-285.
(c) The provision of § 409(a) for oral argument before the
Commission in proceedings heard initially before an examiner is
inapplicable here, since this proceeding was not heard or
assigned
Page 337 U. S. 266
for hearing in the first instance before an examiner, and WJR's
claimed right of participation arises under § 312(b). Pp.
337 U. S.
277-278.
(d) By §§ 312(b) and 4(j), Congress has committed to the
Commission's discretion the questions whether and under what
circumstances it will allow or require oral argument, except where
the Act expressly requires it. Pp.
337 U. S.
281-282.
(e) The provision of § 312(b) for "reasonable opportunity to
show cause" is not to be construed as always including opportunity
for oral argument. Pp.
337 U. S.
282-283.
(f) This Court cannot say that the Commission abused its
discretion in determining WJR's petition on the written submission.
P.
337 U. S.
284.
3. It was error for the Court of Appeals to decline to decide
the merits of the question whether WJR's petition stated a legally
sufficient case of (indirect) modification of its license within
the terms of § 312(b), as well as to decide, without determining
that question, that WJR was entitled to be made a party to and
participate as such in the proceedings on the application. P.
337 U. S.
284.
4. The cause is remanded to the Court of Appeals for decision of
the basic issue on the merits, uncomplicated by questions of
constitutionality relating to the Commission's procedure. P.
337 U. S.
285.
84 U.S.App.D.C. 1, 174 F.2d 226, reversed.
The Federal Communications Commission denied WJR's petition for
reconsideration of an order granting to another an application for
a permit to construct a radio station. The Court of Appeals
reversed and remanded the case to the Commission. 84 U.S.App.D.C.
1, 174 F.2d 226. This Court granted certiorari. 336 U.S. 917.
Reversed and remanded, p.
337 U. S.
285.
Page 337 U. S. 267
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
Most broadly stated, the important question presented by this
case is the extent to which due process of law, as guaranteed by
the Fifth Amendment, requires federal administrative tribunals to
accord the right of oral argument to one claiming to be adversely
affected by their action, more particularly upon questions of law.
Lest this spacious form of statement be taken as too sweeping and
abstract to pose a justiciable issue, we think the specific context
of fact and decision out of which the question has arisen must be
set forth. But before this is done we should say that, as we
understand the Court of Appeals' decision, it has ruled that Fifth
Amendment procedural due process requires an opportunity for oral
argument to be given
"on every question of law raised before a judicial or
quasi-judicial tribunal, including questions raised by
demurrer or as if on demurrer, except such questions of law as may
be involved in interlocutory orders such as orders for the stay of
proceedings
pendente lite, for temporary injunctions and
the like,"
174 F.2d 226, 233, and on this basis has remanded this cause to
the Federal Communications Commission for oral argument.
Involved in the controversy are two radio stations and the
Commission, which is the petitioner here. One of the stations is
the respondent WJR. It is licensed by the Commission as a "Class
I-A Station," [
Footnote 1] to
broadcast day and night from Detroit, Michigan, on a frequency of
760
Page 337 U. S. 268
kilocycles and with a strength of 50 kilowatts. The other
station is the intervenor, Coastal Plains (formerly Tarboro)
Broadcasting Company.
Prior to August 22, 1946, Tarboro filed written application with
the Commission for a permit to construct a "Class II Station"
[
Footnote 2] to broadcast from
Tarboro, North Carolina. On that date, the Commission granted the
application. The permit specified that the new station was to
broadcast during the day from Tarboro at a strength of one kilowatt
on the frequency of 760 kilocycles, which previously had been used
exclusively by WJR. The construction permit was granted without
notice to WJR and without oral hearing or other participation by it
in the proceedings before the Commission.
On September 10 following, WJR filed with the Commission a
written "Petition for reconsideration and hearing." This alleged
that the proposed broadcasting range of the Coastal Plains station
would cause "objectionable interference" with respondent's
broadcast signal. Interference was said to be anticipated
principally in certain areas of Michigan where "the field intensity
of WJR averages 32 microvolts per meter or less during the
daytime
Page 337 U. S. 269
hours," [
Footnote 3] but
where "WJR provides the best signal available;" limited
interference "during the winter season" was also expected within
"contours" of field intensity "much higher" than 32 microvolts;
interference of unspecified extent was also thought likely in
neighboring states, though, as to such areas, it was conceded that
"a better signal is provided by other stations."
On the basis of these allegations, WJR asked that the Commission
hold a hearing on the Coastal Plains application to which WJR might
be made a party or, in the alternative, postpone final action on
the Coastal Plains application until the conclusion of the then
pending "Clear Channel" [
Footnote
4] proceeding. In that proceeding, essentially legislative in
character, the Commission was considering the desirability of
changing its rules so as to allow WJR and other stations to
increase their broadcast strengths to 500 kilowatts. The basis for
the alternative request was WJR's fear that a grant of the Coastal
Plains construction permit might prejudice a possible future WJR
application for increased signal strength in the event the decision
in the clear channel proceeding should so modify the Commission's
rules as to facilitate such an application.
Coastal Plains filed an opposition to WJR's petition for
reconsideration, asserting, among other grounds for denial, that
WJR had not alleged that the proposed new operation "would cause
any interference within the normally protected service area of
Station WJR," and had neither
Page 337 U. S. 270
alleged nor proved "any interference within its normally
protected contours." The opposition was based on the theory that,
under the Commission's regulations, WJR's license conferred no
right to protection against interference outside its normally
protected contours as specified in the regulations, that the
interference alleged was outside those contours, and hence WJR's
petition was legally insufficient, on its face, to state any basis
for WJR to be made a party to or to be heard in the Coastal Plains
proceeding.
No response to the opposition was filed by WJR, and, some three
months later, on December 17, 1946, the Commission denied WJR's
application in a written opinion, rendered without prior oral
argument. The opinion first disposed of the allegations of
interference:
"Station WJR is a Class I-A station. Under the Commission's
Rules and Standards, Class I-A stations are normally protected
daytime to the 100 microvolt per meter contour. The area sought by
petitioner to be protected is, according to the engineering
affidavit accompanying the petition, served by Station WJR during
the daytime with a signal intensity of 32 microvolts per meter or
less, and is therefore outside the normally protected contour.
[
Footnote 5]"
As the Court of Appeals later treated this ruling, it was the
equivalent of holding as a matter of law, in
Page 337 U. S. 271
judicial parlance essentially as though raised upon demurrer,
that WJR's petition did not state facts sufficient to raise any
legal issue concerning (indirect) modification of WJR's license or
rights under the license. The Commission also denied WJR's
alternate request to stay the Coastal Plains application,
concluding that postponement of the newly authorized service out of
deference to any possible "future assignment of facilities" to WJR
"would not serve the public interest."
WJR then appealed to the Court of Appeals. The court agreed that
the Commission had not abused its discretion in refusing to stay
the Coastal Plains permit until completion of the clear channel
proceeding. It held, however, that WRJ's claim of objectionable
interference with its broadcast signal presented a question of law,
and, by a closely divided vote, in the broad language quoted
Page 337 U. S. 272
above, [
Footnote 6] that,
concerning the merits of that question, the Fifth Amendment assured
to WJR the right of oral argument before the Commission.
Accordingly, it refused to consider whether the Commission was
right in its legal conclusion that areas of signal intensity lower
than 100 microvolts per meter were not within the "normally
protected contour" of a Class I-A station, reversed the
Commission's denial of WJR's petition, and remanded the case for
oral argument before the Commission. 174 F.2d 226. To consider the
questions of importance to the administrative process thus
determined, we issued our writ of certiorari. 336 U.S. 917.
At the outset, we note our complete agreement with the Court of
Appeals that the Commission was under no duty to WJR to postpone
final action on the Coastal Plains permit until it had disposed of
the clear channel proceeding. As the court pointed out, WJR had no
vested right in the "supposititious eventualities" that the
Commission at some indeterminate time might modify its rules
governing clear channel stations. Furthermore, the judicial
regulation of an administrative docket sought by WJR "would require
(the Court of Appeals) to direct the order in which the Commission
shall consider its cases." And this, as the court said, it "cannot
do." 174 F.2d 231. "Only Congress could confer such a priority."
Federal Communications Commission v. Pottsville Broadcasting
Co., 309 U. S. 134,
309 U. S.
145.
Obviously the most important question is the Court of Appeals'
ruling that Fifth Amendment due process required
Page 337 U. S. 273
the Commission to afford respondent an opportunity for oral
argument upon its petition for reconsideration of Coastal Plains'
application, together with its grounding of that ruling in the even
broader one that such an opportunity is an inherent element of
procedural due process in all judicial or
quasi-judicial,
i.e., administrative, determinations of questions of law,
outside of such questions as may arise upon interlocutory matters
involving stays
pendente lite, temporary injunctions and
the like.
That the scope of its decision might not be misunderstood, the
court expressly stated:
"A ruling upon a demurrer is obviously not interlocutory, for,
if the demurrer is sustained, the pleader's cause (or defense) is
dismissed upon the merits. . . . [
Footnote 7]"
Moreover, except as to the indicated interlocutory matters, the
right of oral argument on questions of law ("as well as . . . those
of fact" when raised) was said to be
"not conditional upon the
ex parte view of the tribunal
as to whether there is a substantial question as to the sufficiency
of the allegations of a complainant."
174 F.2d 240.
Accordingly, although it was urged both by the Commission and by
WJR to consider and determine the "threshold" question of law upon
its merits, namely, whether the Commission's decision in denying
WJR's petition was wrong, the Court refused to consider or decide
that question. In its view, the question of the Commission's duty
to accord a hearing, "
i.e., to hear argument
Page 337 U. S. 274
before deciding whether the allegations of WJR's petition were
sufficient" in law, was
"a procedural question quite separate from the question on the
merits whether or not the allegations of the petition, assuming
their truth, were sufficient."
174 F.2d 240. The statutory scheme of the Communications Act,
the court thought,
"contemplates, before review in this court, proper exercise of
the Commission's primary jurisdiction,
i.e., valid first
instance hearings properly conducted from the procedural due
process standpoint."
Ibid. Accordingly, the majority felt that the court
"must therefore remand the case with directions to the
Commission to allow a hearing to WJR. Then if, after hearing, the
Commission decides that the allegations were insufficient and
dismisses the petition . . . , an appeal to this court will bring
properly before us the question of the correctness of the
Commission's decision on the merits. . . ."
Ibid. [
Footnote
8]
I
Taken at its literal and explicit import, the Court's broad
constitutional ruling cannot be sustained. So taken, it would
require oral argument upon every question
Page 337 U. S. 275
of law, apart from the excluded interlocutory matters, arising
in administrative proceedings of every sort. This would be
regardless of whether the legal question were substantial or
insubstantial; of the substantive nature of the asserted right or
interest involved; of whether Congress had provided a procedure,
relating to the particular interest, requiring oral argument or
allowing it to be dispensed with, and regardless of the fact that
full opportunity for judicial review may be available.
We do not stop to consider the effects of such a ruling, if
accepted, upon the work of the vast and varied administrative as
well as judicial tribunals of the federal system and the equally
numerous and diversified interests affected by their functioning,
or indeed upon the many and different types of administrative and
judicial procedures which Congress has provided for dealing
adjudicatively with such interests. It is enough to say that due
process of law, as conceived by the Fifth Amendment, has never been
cast in so rigid and all-inclusive confinement.
On the contrary, due process of law has never been a term of
fixed and invariable content. [
Footnote 9] This is as true with reference to oral
argument as with respect to other elements of procedural due
process. For this Court has held in some situations that such
argument is essential to a fair hearing,
Londoner v.
Denver, 210 U. S. 373,
in
Page 337 U. S. 276
others that argument submitted in writing is sufficient.
Morgan v. United States, 298 U. S. 468,
298 U. S. 481.
See also Johnson & Wimsatt v. Hazen, 69 App.D.C. 151,
99 F.2d 384;
Mitchell v. Reichelderfer, 61 App.D.C. 50, 57
F.2d 416.
The decisions cited are sufficient to show that the broad
generalization made by the Court of Appeals is not the law. Rather,
it is in conflict with this Court's rulings, in effect, that the
right of oral argument as a matter of procedural due process varies
from case to case in accordance with differing circumstances, as do
other procedural regulations. Certainly the Constitution does not
require oral argument in all cases where only insubstantial or
frivolous questions of law, or indeed even substantial ones, are
raised. Equally certainly, it has left wide discretion to Congress
in creating the procedures to be followed in both administrative
and judicial proceedings, as well as in their conjunction.
Without in any sense discounting the value of oral argument
wherever it may be appropriate or, by virtue of the particular
circumstances, constitutionally required, we cannot accept the
broad formula upon which the Court of Appeals rested its ruling. To
do so would do violence not only to our own former decisions but
also, we think, to the constitutional power of Congress to devise
differing administrative and legal procedures appropriate for the
disposition of issues affecting interests widely varying in kind.
[
Footnote 10]
Page 337 U. S. 277
It follows also that we should not undertake in this case to
generalize more broadly than the particular circumstances require
upon when and under what circumstances procedural due process may
require oral argument. That is not a matter, under our decisions,
for broadside generalization and indiscriminate application. It is,
rather, one for case-to-case determination, through which alone
account may be taken of differences in the particular interests
affected, circumstances involved, and procedures prescribed by
Congress for dealing with them. Only thus may the judgment of
Congress, expressed pursuant to its power under the Constitution to
devise both judicial and administrative procedures, be taken into
account. Any other approach would be, in these respects, highly
abstract -- indeed, largely in a vacuum.
II
Descending to the concrete setting of this case in the
provisions of the Communications Act, [
Footnote 11] we are unable to conclude that the
procedure Congress has provided for determination of the questions
respondent raises affords any semblance of due process
deficiency.
The statute itself provides in terms for oral argument before
the Commission in a single situation only -- namely, in proceedings
heard initially before an examiner under § 409(a). [
Footnote 12] That provision, however, has
no pertinence to this case, since it was not heard or assigned for
hearing in the first instance before an examiner, and respondent's
claimed right of participation arises under § 312(b). 47 U.S.C. §
312(b). That section authorizes the Commission to modify station
licenses "if, in the judgment
Page 337 U. S. 278
of the Commission, such action will promote the public interest,
convenience, and necessity," but provides
"That no such order of modification shall become final until the
holder of such outstanding license . . . shall have been notified
in writing of the proposed action and the grounds or reasons
therefor and shall have been given reasonable opportunity to show
cause why such an order of modification should not issue."
As bearing on the meaning of § 312(b), account must be taken
also of two other factors. One is § 4(j) of the Act [47 U.S.C. §
154(j)], which provides:
"The Commission may conduct its proceedings in such manner as
will best conduce to the proper dispatch of business and to the
ends of justice. . . . Any party may appear before the Commission
and be heard in person or by attorney. . . ."
The other factor consists in this Court's decision in
Federal Communications Commission v. National Broadcasting
Co., 319 U. S. 239, the
so-called
KOA case.
That case held that the granting of a license to broadcast on a
frequency and at a strength which would interfere with the
broadcast signal of a prior licensee within the protection of the
latter's license as afforded by the Commission's existing rules
constitutes an indirect modification of the prior outstanding
license. From this it was held to follow that § 312(b) gave the
prior licensee the right to be made a party to the proceeding, and
hence to
"have notice in writing of the proposed action and the grounds
therefor and . . . a reasonable opportunity to show cause why an
order of modification should not issue."
319 U.S. at
319 U. S.
245-246. Then followed the Court's conclusion that, by
virtue of KOA's right to be a party, it had also the right under §
402(b)(2), as a "person aggrieved or whose interests are adversely
affected," to appeal to the Court of Appeals from the
Commission's
Page 337 U. S. 279
denial of its petition to intervene and participate as a party
in the proceedings before it.
It is in this context of statutory provisions and judicial
decision that WJR's claim of right to participate in the
Commission's proceedings, including the right of oral argument, and
of denial of due process through the denial of its petition for
reconsideration arises and must be considered.
WJR's petition presents the question whether, upon its face, it
states facts sufficient to show (indirect) modification of its
license by the granting of Coastal Plains' application. This, in
turn, depends on whether allegations not asserting interference
within the 100 microvolt per meter contour, or, as the Commission
held, allegations asserting interference only "outside the normally
protected contour" of WJR's license, set forth any legally
sufficient basis for a claim of right to be made a party and
participate in the proceedings. And, again, according to
respondent, the answer to that question turns on whether the
Commission's Standards of Good Engineering Practice Concerning
Standard Broadcast Stations constitute a part of and a limitation
upon WJR's license. [
Footnote
13]
Respondent insists that those Standards, as a matter of law, do
not limit its license or measure the protection it affords against
"objectionable interference;" it necessarily argues in addition
that the degree of interference its petition alleges brings about
an (indirect) modification of its license (conversely stated, that
the license protected it against the alleged degree of
interference), and hence, as in the
KOA case, the proposed
grant of
Page 337 U. S. 280
a new license entitles it under § 312(b) to be made a party to
the Coastal Plains proceeding and to participate in it as § 312(b)
provides.
This is the claim which the Court of Appeals purported expressly
to refuse to consider or decide prior to oral argument upon it
before the Commission. But two things may be noted. One is that,
contrary to the situation here, in the
KOA case, the
Commission's proposed grant of a new license to Station WHDH
concededly created interference against which the existing rules of
the Commission protected the prior license of KOA. [
Footnote 14]
In the second place, the majority's disclaimer here of decision
upon the merits seems hardly consistent with its opinion's flat
ruling, as we understand it, that WJR's allegations qualified it as
a party to the proceeding, and not, as the dissenting judges
thought, merely as a stranger seeking to come in as an intervenor.
[
Footnote 15] For that
question here,
viz., whether WJR's allegations entitle it
to standing as a party, is but another way of phrasing the
issue
Page 337 U. S. 281
whether its petition states a legally sufficient claim of
(indirect) modification, since, under § 312(b), only a prior
licensee who states such a claim is entitled to be made a party and
to participate in the proceedings. To decide that one has the
status of a party is therefore to decide the question of
modification
vel non.
In view of the court's mandate, however, we think we must accept
its disclaimer. But we also think that, in the light of the
disclaimer, its ruling, if it was such, that WJR is entitled to be
made a party must be rejected, and that question must be regarded
as inherently involved in, indeed as identical with, the
undetermined issue of modification
vel non, if any effect
is to be given to the provisions of § 312(b). [
Footnote 16]
We think the limitations of that section must be given effect.
Indeed, it is our view that the Act's procedural scheme and its
application in this case have not deprived the respondent of any
procedural right guaranteed by the due process requirement of the
Fifth Amendment. That is true notwithstanding the Commission's
failure to afford respondent an opportunity for oral argument upon
its allegations in this case.
Congress, we think, has committed to the Commission's
discretion, by the terms of § 312(b) and § 4(j) of the
Communications Act, the questions whether and under what
circumstances it will allow or require oral argument, except where
the Act itself expressly requires it.
Page 337 U. S. 282
As we have noted, Congress has required oral argument expressly
in proceedings heard initially before an examiner under § 409(a).
But no such requirement was made by § 312(b). While that section
requires notice and statement of grounds for any proposed order of
modification before such order "shall become final," it does not
specify that further proceedings shall include the right to oral
argument; it requires only that the holder of the outstanding
license to be modified "shall have been given reasonable
opportunity to show cause why such an order of modification should
not issue" before the order becomes final.
In view of the contrast between this language and that of §
409(a), it is hardly to be taken that Congress intended the
"reasonable opportunity to show cause" always to include
opportunity for oral argument. Indeed, in the absence of any such
explicit requirement as that of § 409(a), the terms of § 312(b)
must be read in the light of the Act's general procedural
authorization in § 4(j), which empowers the Commission to "conduct
its proceedings in such manner as will best conduce to the proper
dispatch of business and to the ends of justice."
In this wording Congress was mindful not only of the ends of
justice, but also of the proper dispatch of the Commission's
business, a matter not unrelated to achieving the ends of justice,
and left largely to its judgment the determination of the manner of
conducting its business which would most fairly and reasonably
accommodate those ends. Moreover it was dealing with substantive
interests involving the use, pursuant to federal license, of
channels of radio communication "but not the ownership thereof," §
301, as to which, moreover, the Act expressly provides that "no
such license shall be construed to create any right, beyond the
terms, conditions, and periods of the license."
Ibid.
Page 337 U. S. 283
In this connection, it cannot be recalled too often that
"
public convenience, interest, or necessity' was the touchstone
for the exercise of the Commission's authority" in matters relating
to construction permits and licensing, and that this
criterion
"serves as a supple instrument for the exercise of discretion by
the expert body which Congress has charged to carry out its
legislative policy."
Federal Communications Commission v. Pottsville Broadcasting
Co., 309 U. S. 134,
309 U. S.
137-138.
"Necessarily, therefore, the subordinate questions of procedure
in ascertaining the public interest, when the Commission's
licensing authority is invoked -- the scope of the inquiry, whether
applications should be heard contemporaneously or successively,
whether parties should be allowed to intervene in one another's
proceedings, and similar questions -- were explicitly and by
implication left to the Commission's own devising, so long, of
course, as it observes the basic requirements designed for the
protection of private as well as public interest."
Id. 309 U.S. at
309 U. S.
138.
We need not go again over the ground which was covered by this
decision and others. Suffice it to say that the Commission has not
seen fit to provide for oral argument in all such cases as this
arising under § 312(b); nor is there any basis in the section or
the Act for believing that Congress intended to require it to do
so. "Reasonable opportunity to show cause," as used in § 312(b),
comprehends in the light of § 4(j) and this Court's prior decisions
that the Commission shall have broad discretion in determining
whether and when oral argument shall be required or permitted, as
it does with respect to other procedural matters. [
Footnote 17]
Page 337 U. S. 284
Respondent does not contend that it was denied any opportunity
to present for the Commission's consideration any matter of fact or
law in connection with its application, or that the Commission has
not given all matters submitted by it due and full consideration.
We cannot say, in view of the statute and of the subject matter
involved, that the Commission abused its discretion in hearing
respondent's application on the written submission. [
Footnote 18]
Accordingly, we think it was error for the court to decline to
decide the merits of the question whether respondent's application
stated a legally sufficient case of (indirect) modification of its
license within the terms of § 312(b) as well as to decide, without
determining that question, that respondent was entitled to be made
a party to and participate as such in the Coastal Plains
proceedings. As we have said, in the situation here presented, the
two forms of statement pose the same question in substance,
together with the further question, under the KOA decision, whether
respondent has standing to appeal as a party aggrieved. The
statutory sequence identifies (1) a legally sufficient claim of
modification with (2) right to standing as a party and (3) right to
appeal.
Page 337 U. S. 285
This threefold issue presents a question of law respondent is
entitled to have determined. The dissenting judges in the Court of
Appeals considered the question insubstantial, because they
thought, contrary to respondent's position, that the Commission's
Standards of Good Engineering Practice applied as a limitation upon
respondent's license, and therefore excluded it from protection
against interference such as respondent alleged,
i.e.,
outside the contours prescribed by the Standards.
That question, being one of law, might now be decided here. But
since the statute, if it affords respondent a right of appeal,
provides that it shall be to the Court of Appeals, and since that
court has not decided the basic issue on the merits, we think the
cause should be remanded to the Court of Appeals for decision of
that question, uncomplicated by questions of constitutionality
relating to the Commission's procedure. Accordingly, the court's
decision is reversed, and the cause is remanded to it for further
proceedings not inconsistent with this opinion.
Reversed and remanded.
MR. JUSTICE MURPHY took no part in the consideration or decision
of this case.
[
Footnote 1]
Federal Communications Commission Rules Governing Standard
Broadcast Stations § 3.22(a):
"A 'Class I Station' is a dominant station operating on a clear
channel and designed to render primary and secondary service over
an extended area and at relatively long distances. Its primary
service area is free from objectionable interference from other
stations on the same and adjacent channels, and its secondary
service area free from interference, except from stations on the
adjacent channel, and from stations on the same channel in
accordance with the channel designation in Sec. 3.25 or in
accordance with the 'Engineering Standards of Allocation.' The
operating power shall be not less than 10 kw nor more than 50 kw
(also see Sec. 3.25(a) for further power limitation)."
4 Fed.Reg. 2715.
[
Footnote 2]
Federal Communications Commission Rules Governing Standard
Broadcast Stations § 3.22(b):
"A 'Class II Station' is a secondary station which operates on a
clear channel (see Sec. 3.25) and is designed to render service
over a primary service area which is limited by and subject to such
interference as may be received from Class I stations. A station of
this class shall operate with power not less than O.25 kilowatts
nor more than 50 kilowatts. Whenever necessary, a Class II station
shall use a directional antenna or other means to avoid
interference with Class I stations and with other Class II
stations, in accordance with the 'Engineering Standards of
Allocation.'"
4 Fed.Reg. 2715.
[
Footnote 3]
For the meaning of the term "field intensity," and for the
relation of a broadcast signal's "field intensity" to the legal
concept of a licensed radio station's "normally protected contour,"
see note 5
[
Footnote 4]
Federal Communications Commission Rules Governing Standard
Broadcast Stations § 3.21(a):
"A 'clear channel' is one on which the dominant station or
stations render service over wide areas and which are cleared of
objectionable interference, within their primary service areas and
over all or a substantial portion of their secondary service
areas."
4 Fed.Reg. 2715.
[
Footnote 5]
The dissenting opinion in the Court of Appeals decision here
under review offers a succinct exposition of these technical
terms:
"This concept of normal protection in the daytime is clear. The
circumference of the protected area is a contour line which is
fixed by measurement of the strength of the radio waves from the
particular station. That strength, or intensity, is measured in
terms of microvolts (millionths of a volt) or millivolts
(thousandths of a volt) per meter, abbreviated as uv/m and mv/m,
respectively. The wave which is measured is the groundwave, which
follows the surface of the earth and extends greater or less
distances depending upon the nature of the earth, its topography,
and such obstacles as noise and steel structures. Generally
speaking, the greater the distance from the station, the less the
strength of the station signal. The '100 uv/m ground wave contour'
named in the Commission's Standards, is the imaginary line which
connects all points at which the ground wave of the station is of
100 microvolts per meter strength."
174 F.2d 226, 244.
The "Commission's Standards" to which the opinion refers are the
Standards of Good Engineering Practice Concerning Broadcast
Stations. Under the subheading "Engineering Standards of
Allocation," § 2(a) provides as follows:
"The Class I stations in Group 1 are those assigned to the
channels allocated by Section 3.25, paragraph (a) [including,
inter alia, the 760 kilocycle frequency assigned to WJR, 4
Fed.Reg. 2716], on which duplicate night time operation is not
permitted, that is, no other station is permitted to operate on a
channel with a Class I station of this group within the limits of
the United States (the Class II stations assigned the channels
operate limited time or daytime only) and during daytime the Class
I station is protected to the 100 uv/m ground wave contour."
4 Fed.Reg. 2862.
[
Footnote 6]
The case was first argued before three justices, Chief Justice
Groner and Justices Clark and Prettyman. By direction of the court,
it was reargued before Justices Stephens, Edgerton, Clark, Wilbur
K. Miller, and Prettyman. The decision was rendered pursuant to an
opinion of Justice Stephens, in which Justices Clark and Miller
concurred. Justice Prettyman filed a dissenting opinion in which
Justice Edgerton joined.
[
Footnote 7]
The statement, taken in its context and the pervading sense of
the opinion, related not merely to judicial rulings technically
"raised by demurrer," but also to judicial and administrative
rulings "as if on demurrer,"
i.e., as expressly stated
later in the opinion, to rulings
"raised by demurrer or motion to dismiss or, in an
administrative proceeding, by some less formally named instrument
of like purpose, or by the tribunal's
sua sponte treatment
of a petition as if under demurrer. . . ."
174 F.2d 236.
[
Footnote 8]
Both from the wording of the immediate reference, quoted above,
and from other language in context, it is clear that the court's
reference to "the statutory scheme set up in the Communications
Act" was not designed as a ruling that the statutory scheme itself,
considered wholly as such and apart from any requirement of due
process, affords the right of oral argument upon all questions of
law, other than the interlocutory exceptions, before the
Commission. Rather, the reference was intended to construe the Act
as incorporating the court's reiterated conception of due process
requirements in this respect, in effect as a construction required
by the Fifth Amendment. It is clear also that, in this ruling, the
court identified "hearing" with "oral argument" insofar as
determination of questions of law are concerned. We are thus
confronted, so far as the court's decision went, with no question
purely of statutory construction, but solely, at bottom, with one
of constitutional import and effect.
[
Footnote 9]
"The Fifth Amendment guarantees no particular form of procedure;
it protects substantial rights."
Labor Board v. Mackay Radio
& Telegraph Co., 304 U. S. 333,
304 U. S. 351.
"The requirements imposed by that guaranty [Fifth Amendment due
process] are not technical, nor is any particular form of procedure
necessary."
Inland Empire Dist. Council v. Millis, 325 U.
S. 697,
325 U. S. 710.
See also Bowles v. Willingham, 321 U.
S. 503,
321 U. S.
519-521;
Opp Cotton Mills v. Administrator,
312 U. S. 126,
312 U. S.
152-153;
Buttfield v. Stranahan, 192 U.
S. 470,
192 U. S.
496-497;
Anniston Mfg. Co. v. Davis,
301 U. S. 337,
301 U. S.
342-343;
United States v. Ju Toy, 198 U.
S. 253,
198 U. S. 263;
Chicago, B. & Q. R. Co. v. Chicago, 166 U.
S. 226,
166 U. S. 235;
Phillips v. Commissioner, 283 U.
S. 589,
283 U. S.
596-597.
[
Footnote 10]
For example, what may be appropriate or constitutionally
required by way of procedure, including opportunity for oral
argument, in protection of an alien's claims of right to enter the
country,
cf. United States ex rel. Johnson v. Shaughnessy,
336 U. S. 806, may
be very different from what is required to determine an alleged
citizen's right of entry or reentry,
cf. Ng Fung Ho v.
White, 259 U. S. 276,
259 U. S. 282;
Carmichael v. Delaney, 170 F.2d 239, 243-244; a claimed
right of naturalization,
Tutun v. United States,
270 U. S. 568,
270 U. S.
576-578, a claim of just compensation for land
condemned,
cf. Roberts v. New York City, 295 U.
S. 264,
295 U. S.
277-278; or the right to defend against an indictment
for crime.
[
Footnote 11]
Act of June 19, 1934, c. 652, 48 Stat. 1064, 1081, 47 U.S.C. §
301 ff.
[
Footnote 12]
The section reads in part: "In all cases heard by an examiner,
the Commission shall hear oral arguments. . . ." 47 U.S.C. §
409(a).
[
Footnote 13]
The Standards, 4 Fed.Reg. 2862, expressly state that, "during
daytime, the Class I station is protected to the 100 uv/m ground
wave contour." § 1(2)(a). The Commission's Standards of Good
Engineering Practice Concerning Standard Broadcast Stations were
adopted in 1939, after formal and informal hearings. Fifth Annual
Report of the Federal Communications Commission (1940) 37.
[
Footnote 14]
In other words, the interference alleged was within the conceded
"normal contours" of KOA's protection, not without them. There was
therefore no question, such as is presented here, whether the
existing station's license protected it against the interference
alleged. The
KOA decision therefore cannot be taken as
ruling that one asserting interference outside the scope of its
license protection, afforded by the Commission's rules and
regulations, is entitled to be made a party and to participate in
proceedings involving the issuance of a new license creating only
such interference.
[
Footnote 15]
The court's opinion stated: "WJR, as an outstanding licensee, is
not a mere permissive intervener or, as the minority puts it, an
outsider.'" 174 F.2d 240. The statement of the minority to
which this rejoinder was made was:
"The ruling [of the majority] is that a petitioner for
intervention in an administrative proceeding is entitled to an oral
hearing as a matter of constitutional right, no matter what or how
little he says in his petition. . . . [WJR's petition] was
basically a petition to intervene, as it asked that WJR be made a
party to the Coastal Plains proceeding."
174 F.2d 243.
[
Footnote 16]
The Court of Appeals was not simply construing the statute, but
was influenced throughout its opinion by its broad constitutional
generalization concerning oral argument. In that view, necessarily
the Act's specific terms, including those of § 312(b), sank into
the generalization's constitutional coloring. In that light,
perhaps, the majority's disclaimer and its ruling that WJR was
entitled to come in as a party bore semblance of consistency. But,
without the coloration, § 312(b) identifies showing of modification
with standing as a party, and, unless this limitation is invalid
for constitutional reasons, it must be given effect.
[
Footnote 17]
That is true even though § 4(j) also provides that "Any party
may appear before the Commission and be heard in person or by
attorney." That provision does not nullify the Commission's
discretion as to the manner in which the "reasonable opportunity to
show cause" afforded by § 312(b) shall be given. It only assures
the right to participate "in person or by attorney" in the manner
reasonably found by the Commission to be appropriate.
[
Footnote 18]
Federal Rules of Civil Procedure, rule 78, the terms of which
were noted by the dissent in the Court of Appeals, 174 F.2d 226,
provides in part, as to United States District Courts:
"To expedite its business, the court may make provision by rule
or order for the submission and determination of motions without
oral hearing upon brief written statements of reasons in support
and opposition."
Fed.Rules Civ.Proc. 78. Similar notice may be taken of Rule 7(2)
of this Court, which, governing not only motion practice in
appellate cases but motions for leave to initiate original
proceedings, provides in part: "Oral argument will not be heard on
any motion unless the court specially assigns it therefor. . .
."