l. The proprietor of a broadcasting station whose license from
the Federal Communications Commission entitles him to employ a
specified frequency and a specified power and assigns to him a
clear channel at night free from electrical interference is
entitled under § 312(b) of the Federal Communications
Commission Act to be made a party to a proceeding before the
Commission looking to the granting of an application of another
station operating upon the same frequency for an increase of power
and for the right to operate at night, the effect of which may be
by electrical interference to deprive the first licensee of his
clear channel, thus modifying his license. P.
319 U. S.
243.
2. Error of the Federal Communications Commission in denying the
first licensee the right to intervene in such proceedings was not
cured by permission to file a brief and present oral argument. P.
319 U. S.
246.
3. In the situation above stated, the first licensee was
entitled by § 402(b)(2) of the Act to appeal to the Court of
Appeal for the District of Columbia from the action of the
Commission in denying to him the right to intervene and from the
order of the Commission granting the application to the other
licensee. P.
319 U. S.
246.
132 F.2d 545 affirmed.
Certiorari, 317 U.S. 624, to review a judgment of the United
States Court of Appeals for the District of Columbia reversing an
order of the Federal Communications Commission.
Page 319 U. S. 240
MR. JUSTICE ROBERTS delivered the opinion of the Court.
This case presents important questions of procedure arising
under Title III of the Communications Act of 1934. [
Footnote 1]
The respondent is licensed to operate Station KOA at Denver,
Colorado, on a frequency of 850 kilocycles. Station WHDH, of
Boston, Massachusetts, had a license to operate, daytime only, on
the same frequency. October 25, 1938, WHDH applied to the
Communications Commission for an increase in power and for
operation unlimited in time. The Commission set down the
application and designated certain issues for hearing, of which the
following are pertinent: to determine whether the interests of any
other stations may be adversely affected by reason of interference,
particularly KOA and other named stations; to determine whether
public interest, convenience, or necessity would be served by
modifying the rules governing standard broadcast stations to
authorize the proposed operation of WHDH.
The Commission's rules precluded the operation of a second
station at night on KOA's frequency, [
Footnote 2] provided that an application not filed in
accordance with its regulations would be deemed defective, would
not be considered, and would be returned to the applicant,
[
Footnote 3] and also that, if
an applicant desired to challenge the validity or wisdom of any
rule or regulation, he must submit a petition setting forth the
desired change and the reasons in support thereof. [
Footnote 4]
The respondent petitioned to intervene. Its petition was denied.
It then moved to dismiss WHDH's application
Page 319 U. S. 241
for failure to conform to the rules and regulations. The motion
was denied. Meantime, the Commission, evidently believing that, in
view of the possible alteration of the rules concerning standard
broadcast stations, questions of policy might be involved and that,
consequently, under Sec. 409(a), the hearing would have to be
conducted by a member of the Commission, [
Footnote 5] designated Commissioner Case to conduct the
hearing.
No hearing was held under the original notice. A new notice was
issued which indicated that the Commission did not then contemplate
modification of its substantive rules, but intended merely to
afford the applicant an opportunity to urge that they be construed
in the applicant's favor. Issues specified in the second notice
were
"to determine whether or not the Commission's Rules Governing
Standard Broadcast Stations, particularly Sections 3.22 and 3.25
(Part III) properly interpreted and applied preclude the granting
of the application,"
and to determine the nature, extent, and effect of any
interference which would result from a grant of the application,
particularly with Station KOA and others named. The inquiry, thus
limited, could be heard before an examiner under Sec. 409(a), and,
accordingly, the Commission withdrew the designation of
Commissioner Case and assigned an examiner.
A hearing was held January 29 and 30, 1940, but the respondent
was not permitted to appear or participate. December 9, 1940, the
Commission promulgated proposed findings of fact and conclusions.
Two commissioners dissented. All agreed that Secs. 3.22 and 3.25 of
the regulations precluded a grant of WHDH's application. Three
voted to modify those regulations and to grant the
Page 319 U. S. 242
application. Respondent then filed its second petition to
intervene, which was denied. The Commission subsequently, on its
own motion, permitted respondent to file briefs and present an oral
argument
amicus curiae. April 7, 1941, the Commission
adopted a final order amending Sec. 3.25 of the rules and granting
the WHDH application, two commissioners dissenting.
Respondent filed a petition for rehearing pursuant to Sec. 405
of the Act. [
Footnote 6] This
was denied. Thereupon, respondent gave notice of appeal to the
Court of Appeals of the District of Columbia, [
Footnote 7] which concluded that the Commission's
action effected a modification of respondent's license, and
consequently the statute entitled the respondent to be made a party
and to participate in the hearing. The court below therefore
reversed the Commission's order and remanded the case for further
proceedings. [
Footnote 8]
The respondent contends that it was entitled, as a matter of
right, to participate in the hearing before the Commission on the
question of the granting of WHDH's application, and that its rights
in this respect were not satisfied by permitting it to file a brief
and present argument. It further insists that the Commission's
proceeding was invalid due to the provisions of Sec. 409(a) of the
statute, the failure to comply with the rules then in force, and
the arbitrary and capricious action taken. Finally, the respondent
asserts § 405 entitled it to a rehearing, and § 402(b)(2)
granted it an appeal.
The petitioner urges the grant of WHDH's application did not
amount to a substantial modification of KOA's license or so affect
KOA's rights as to require that KOA be permitted to intervene, and
that, in any event, KOA was not denied any substantial right of
participation in the proceeding.
Page 319 U. S. 243
First. We are of opinion that respondent was entitled
to be made a party.
Section 312(b) of the Act provides:
"Any station license hereafter granted . . . may be modified by
the Commission . . . if, in the judgment of the Commission, such
action will promote the public interest, convenience, and
necessity. . .
Provided, however, 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."
The Commission found that there would be interference with KOA's
broadcast in the eastern part of the United States if WHDH's
application were granted. The Commission's own reports to Congress
show that, at night, a small proportion of the urban population and
a much larger proportion of the rural population of the country
enjoy only such broadcasting service as is afforded by clear
channel stations. KOA, one of the stations upon which this service
depends, has operated continuously at Denver since 1924, and has
used a clear channel upon which only one station is permitted to
operate during the night. Under the Commission's regulations
(§§ 3.22 and 3.25), KOA had therefore little or no
channel interference from any station located within the United
States. In addition, its signals throughout the United States were
free, and entitled to remain free, of channel interference from any
station in Canada, Mexico or Cuba, pursuant to the provisions of
the North American Regional Broadcasting Agreement. [
Footnote 9] The Commission's order deprives
KOA of freedom from interference in its night service over a large
area lying east of the Mississippi River. Furthermore, the order
opens the way for Canada, Mexico, and Cuba,
Page 319 U. S. 244
signatories to the broadcasting agreement, to acquire the right
to operate stations which may cause channel interference at night
on KOA's frequency within the United States.
The respondent urges that it can be shown that the service of
WHDH, while interfering at night with that of KOA, would not be a
service equally useful, and that the grant to WHDH adds a new
primary service to an area already heavily supplied with such
service. In its petitions to intervene, the respondent called
attention to the terms of its existing license, asserting that the
grant of WHDH's application would cause interference in areas where
KOA's signal was interference free; that respondent would be
aggrieved and its interests adversely affected by a grant of the
application, and that the operation proposed by WHDH would not be
in the interest of public convenience and necessity; that a grant
of the application would result in a modification of respondent's
license in violation of § 312(b), and would result in a
modification of the Commission's regulations without such a hearing
as is required by § 303(f) of the Act. In its petition for
rehearing the respondent elaborated and reiterated the reasons
embodied in its motions for dismissal of the petition and its
petitions to intervene.
The Commission says that the section has no application to this
case. It asserts that the proceeding was an application by WHDH for
modification of its station license, and that, under § 309(a)
of the Act, the Commission might have acted on the application
without any hearing. So much may be conceded if nothing more were
involved. But the grant of WHDH's application, in the
circumstances, necessarily involved the modification of KOA's
outstanding license. This petitioner denies, saying KOA's license
granted no more than the privilege of operating its station in a
prescribed manner, and that the grant of WHDH's application in
nowise altered the
Page 319 U. S. 245
of KOA's license. This contention stems from the circumstance
that KOA's license authorizes it to operate a transmitter of 50
kilowatts on the frequency 850 kilocycles at Denver. The petitioner
says that the grant of WHDH's application affects none of these
terms. But we think this too narrow a view. When KOA's license was
granted, the Commission's rules §§ 3.21 and 3.25 embodied
these provisions:
"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."
"The frequencies in the following tabulation are designated as
clear channels and assigned for use by the classes of stations are
given:"
"(a) To each of the channels below there will be assigned one
class I station and there may be assigned one or more class II
stations operating limited time or daytime only: . . . The power of
the class I stations on these channels shall not be less than 50
kilowatts."
850 kilocycles was one of the frequencies appearing on the
schedule forming part of the rule.
These rules were incorporated into the terms of KOA's license,
which granted it a frequency of 850 kilocycles and a power of 50
kilowatts. To alter the rules so as to deprive KOA of what had been
assigned to it, and to grant an application which would create
interference on the channel given it, was in fact and in substance
to modify KOA's license. This being so, § 312(b) requires that
it be made a party to the proceeding. We can accord no other
meaning to the language of the proviso which requires that the
holder of the license which is to be modified must have notice in
writing of the proposed action and the grounds therefor, and must
be given a reasonable
Page 319 U. S. 246
opportunity to show cause why an order of modification should
not issue. Certainly one who is to be notified of a hearing and to
have the right to show cause is not to be considered a stranger to
the proceeding, but is, by the very provisions of the statute, to
be made a party. The very notices issued by the Commission show
that that body knew there would probably be an interference with
KOA's signals if the pending application of WHDH were granted, and
that the Commission also realized there was a serious question
whether the application could be granted under its existing rules.
It is not necessary to discuss at any length the sufficiency of the
petitions to intervene if, as we have held, the Act itself provided
that, in such an instance as the present, KOA was entitled to be
brought in as a party. A licensee cannot show cause unless it is
afforded opportunity to participate in the hearing, to offer
evidence, and to exercise the other rights of a party.
Much is said to the effect that KOA was not in fact injured,
because the Commission permitted it to file a brief
amicus
curiae and to present oral argument. It is beside the point to
discuss the Commission's rules as to intervention and the
privileges accorded by the Commission to one denied intervention,
since we are of opinion, as already stated, that, under the terms
of the Act, the respondent was entitled to participate in the
proceedings.
Second. While the Commission did not urge before the
court below, and did not advance as a reason for the grant of
certiorari, that respondent was not entitled to appeal to the Court
of Appeals, this matter was argued here and, as it raises a
question of jurisdiction, we shall consider it.
It would be anomalous if one entitled to be heard before the
Commission should be denied the right of appeal from an order made
without hearing. We think the Act does not preclude such an appeal.
Section 402(b)(2) permits an appeal to the Court of Appeals of the
District of Columbia
Page 319 U. S. 247
by "any . . . person aggrieved or whose interests are adversely
affected by any decision of the Commission granting or refusing"
any application for modification of an existing station license.
If, within the intent of the statute, the interests of KOA would be
adversely affected, or if KOA would be aggrieved by granting the
application of WHDH, then the statute grants KOA a right of
appeal.
In
Federal Communications Commission v. Sanders Bros. Radio
Station, 309 U. S. 470,
642, we dealt with a similar situation. There, the question was
whether a rival station, which would suffer economic injury by the
grant of a license to another station, had standing to appeal under
the terms of the Act. We held that it had. We pointed out that,
while a station license was not a property right, and while the
Commission was not bound to give controlling weight to economic
injury to an existing station consequent upon the issuance of a
license to another station, yet economic injury gave the existing
station standing to present questions of public interest and
convenience by appeal from the order of the Commission. Here KOA,
while not alleging economic injury, does allege that its license
ought not to be modified because such action would cause electrical
interference which would be detrimental to the public interest.
In view of the fact that § 312(b) grants KOA the right to
become a party to the proceedings, we think it plain that it is a
party aggrieved, or a party whose interests will be adversely
affected by the grant of WHDH's application, as, indeed the
Commission seems to have thought when it first noticed WHDH's
application for hearing. We therefore hold KOA was entitled to
appeal from the Commission's action in excluding it from
participation in the proceeding and from the order made by the
Commission.
The judgment is
Affirmed.
Page 319 U. S. 248
MR. JUSTICE BLACK, MR. JUSTICE MURPHY and MR. JUSTICE RUTLEDGE
took no part in the consideration or decision of this case.
[
Footnote 1]
Act of June 19, 1934, c. 652, 48 Stat. 1064, 1081, 47 U.S.C.
Sec. 301 ff.
[
Footnote 2]
Secs. 3.22 and 3.25.
[
Footnote 3]
Sec. 1.72.
[
Footnote 4]
Sec. 1.71.
[
Footnote 5]
Sec. 409(a), 47 U.S.C. § 409(a), provides that, in the
administration of Tit. III, an examiner may not hold hearings with
respect to a matter involving a change of policy by the Commission
or a new kind of use of frequencies.
[
Footnote 6]
47 U.S.C. Sec. 405.
[
Footnote 7]
Pursuant to Sec. 402(b)(2), 47 U.S.C. Sec. 402(b)(2).
[
Footnote 8]
132 F.2d 545.
[
Footnote 9]
55 Stat., Part 2, 1005.
MR. JUSTICE FRANKFURTER, dissenting.
Unlike courts, which are concerned primarily with the
enforcement of private rights, although public interests may
thereby be implicated, administrative agencies are predominantly
concerned with enforcing public rights, although private interests
may thereby be affected. To no small degree, administrative
agencies for the enforcement of public rights were established by
Congress because more flexible and less traditional procedures were
called for than those evolved by the courts. It is therefore
essential to the vitality of the administrative process that the
procedural powers given to these administrative agencies not be
confined within the conventional modes by which business is done in
courts.
In my judgment, the decision of the Court in this case imposes a
hampering restriction upon the functioning of the administrative
process. This is the aspect that lends this case importance and
leads me to express the reasons for my dissent.
The Communications Act of 1934, 48 Stat. 1064, 47 U.S.C. §
151
et seq., directs the Federal Communications Commission
to "classify radio stations," "prescribe the nature of the service
to be rendered by each class of licensed stations and each station
within any class," and
"assign bands of frequencies to the various classes of stations,
and assign frequencies for each individual station and determine
the power which each station shall use and the time during which it
may operate."
§ 303(a)(b)(c). Accordingly, the Commission has established
a plan for allocating the available radio facilities among the
stations of the country. Under its Rules, there are three classes
of standard broadcast channels: "clear channels," on which
dominant
Page 319 U. S. 249
stations render service over extensive areas and which are
cleared of objectionable interference within their primary service
areas and over all or a substantial part of their secondary service
areas; "regional channels," on which several stations serving
smaller areas operate simultaneously with powers not in excess of 5
kilowatts, and "local channels," on which many stations serving
local areas operate simultaneously with powers not in excess of 250
watts. § 3.21. Similarly, standard broadcast stations are
classified into four groups: "class I stations" -- dominant
stations operating on clear channels and designed to render primary
and secondary service over large areas and at relatively long
distances; "class II stations" -- operating on clear channels and
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; "class III stations" -- operating on regional
channels and designed to render service primarily to metropolitan
districts and the rural areas contiguous thereto, and "class IV
stations" -- operating on local channels and designed to render
service primarily to cities or towns and the suburban and rural
areas contiguous thereto. § 3.22. Section 3.25 divides clear
channels into two further groups: I-A channels, to which only one
class I station is assigned, with one or more class II stations
operating limited time or daytime only, and I-B channels, to which
both class I and class II stations may be assigned, with more than
one station operating at night.
On October 25, 1938, Station WHDH in Boston, Massachusetts, a
class II station licensed to operate during the daytime only on the
frequency 830 kilocycles (a class I-A channel) with power of 1
kilowatt, applied to the Commission for modification of its license
so that it could operate both night and day on that frequency with
increased power of 5 kilowatts. At that time, Station KOA in
Denver, Colorado, was the dominant class I station
Page 319 U. S. 250
on the frequency 830 kilocycles, operating unlimited time with
power of 50 kilowatts. Since the Commission's Rules provided for
the assignment of only one station to operate at night on the
frequency 830 kilocycles, the WHDH application could not be granted
without amendment of § 3.25.
Section 309(a) of the Act specifies the procedure which the
Commission must follow in passing upon applications for
modification of licenses, such as that of WHDH:
"If, upon examination of any application for . . . modification
of a station license, the Commission shall determine that public
interest, convenience, or necessity would be served by the granting
thereof, it shall authorize . . . modification thereof in
accordance with said finding. In the event the Commission, upon
examination of any such application, does not reach such decision
with respect thereto, it shall notify the applicant thereof, shall
fix and give notice of a time and place for hearing thereon, and
shall afford such applicant an opportunity to be heard under such
rules and regulations as it may prescribe."
The Commission, upon its examination of the WHDH application,
was unable to find that a grant would serve the public interest,
convenience, or necessity. The application was therefore, on
September 2, 1939, designated for hearing. Three weeks later, on
September 23, 1939, KOA filed a petition to intervene. Its
petition, in substance, alleged only that the proposed operation of
WHDH would "cause interference to station KOA in areas where KOA's
signal is now interference free," that KOA "would be aggrieved and
its interests adversely affected" by the proposed operation, and
that a grant of the WHDH application would not be in the public
interest, convenience, or necessity.
The Court holds that the Commission was required as a matter of
law to grant KOA's petition to intervene in the hearing upon the
WHDH application. In my judgment,
Page 319 U. S. 251
the Act precludes such a construction. Section 4(j) provides
that 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;" § 303(r) authorizes it to make
"such rules and regulations and prescribe such restrictions and
conditions, not inconsistent, with law, as may be necessary to
carry out the provisions of this Act."
We have held that, by force of these provisions,
"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."
Federal Communications Comm'n v. Pottsville Broadcasting
Co., 309 U. S. 134,
309 U. S.
138.
The breadth of discretion entrusted to the Commission is
limited, however, by §§ 303(f) and 312(b). The former
provides that
"changes in the frequencies, authorized power, or in the times
of operation of any station shall not be made without the consent
of the station licensee unless, after a public hearing, the
Commission shall determine that such changes will promote public
convenience or interest or will serve public necessity, or the
provisions of this Act will be more fully complied with."
Section 312(b) authorizes the Commission to modify outstanding
station licenses
"if, in the judgment of the Commission, such action will promote
the public interest, convenience, and necessity, or the provisions
of this Act or of any treaty ratified by the United States will be
more fully complied with:
Provided, however, That no such
order of modification shall become final until the holder of such
outstanding license or permit shall have been notified
Page 319 U. S. 252
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."
The procedural scheme established by the statute is thus clear:
if application is made for a station license or for modification or
renewal of a license, the Commission may grant such application
without a hearing if it finds, upon examination of the application,
that a grant would be in the public interest. If it is unable to
reach such a determination from its study of the application, it
must afford the applicant a "hearing." § 309(a). If a
Commission order involves a change in the frequency, authorized
power, or hours of operation of an existing station without its
consent, such licensee is entitled to a "public hearing." §
303(f). If a Commission order involves "modification" of an
outstanding license, presumably something other than a change in
frequency, power, or hours of operation, the modification order
cannot become effective until the licensee is given notice in
writing and a "reasonable opportunity to show cause why such an
order of modification should not issue." § 312(b). It is
relevant here also that, under § 312(a), a Commission order
revoking a station license cannot take effect
"until fifteen days' notice in writing thereof, stating the
cause for the proposed revocation, has been given to the licensee.
Such licensee may make written application to the Commission at any
time within said fifteen days for a hearing upon such order, and,
upon the filing of such written application, said order of
revocation shall stand suspended until the conclusion of the
hearing conducted under such rules as the Commission may prescribe.
Upon the conclusion of said hearing, the Commission may affirm,
modify, or revoke said order of revocation."
The Act explicitly provides for a "hearing," therefore, when the
Commission proposes to deny an application for a license, or to
revoke a license, or to
Page 319 U. S. 253
change the frequency, power, or hours of operation of a station
licensee. But when a Commission order merely involves
"modification" of the license of an existing station, the latter is
entitled only to notice in writing and a "reasonable opportunity to
show cause" why the order should not issue.
The Commission has exercised the authority given it by Congress
to formulate its administrative procedure. Section 1.102 of its
Rules, relating to intervention in Commission proceedings by
interested parties, provides as follows:
"Petitions for intervention must set forth the grounds of the
proposed intervention, the position and interest of the petitioner
in the proceeding, the facts on which the petitioner bases his
claim that his intervention will be in the public interest, and
must be subscribed or verified in accordance with section 1.122.
The granting of a petition to intervene shall have the effect of
permitting intervention before the Commission, but shall not be
considered as any recognition of any legal or equitable right or
interest in the proceeding. The granting of such petition shall not
have the effect of changing or enlarging the issues, which shall be
those specified in the Commission's notice of hearing unless, on
motion, the Commission shall amend the same."
Under an earlier rule, any person could intervene in a
Commission proceeding if his petition disclosed "a substantial
interest in the subject matter." § 105.19, Commission's Rules
and Regulations (1935). The reasons for the change in the
Commission's intervention rule were thus stated by the Attorney
General's Committee on Administrative Procedure, Sen.Doc. No. 186,
76th Cong., 3d Sess., Pt. 3, pp. 16-17:
"The effects of this complete freedom of intervention [available
under the old rule] upon the Commission's activities were very
marked. Not only was the record unnecessarily prolonged by the
discussion
Page 319 U. S. 254
of noncontroversial issues, but the evidence relevant to each
issue was increased manyfold by virtue of the extended
cross-examination of witnesses by each intervener. More often than
not, the interveners presented no affirmative evidence on the
issues at hand. The major functions served by them were apparently
to impede the progress of the hearing, to increase the size of the
record, and to obfuscate the issues by prolonged and confusing
cross-examination. Nor were these dilatory and destructive tactics
restricted to the hearing itself. Each intervener would customarily
avail himself of his rights to take exceptions to the examiner's
report, to oral argument before the Commission, and, in many cases,
to appeal from the Commission's order to the District of Columbia
Court of Appeals. . . . If this [new] provision is enforced
intelligently and forcefully, an important step will have been
taken both toward the protection of applicants and the increase of
the Commission's prestige."
Compare In re Hazelwood, Inc., 7 F.C.C. 443.
KOA's petition for intervention was denied, presumably because
the showing required by § 1.102 had not been made. And, on
January 29 and 30, 1940, a hearing upon the WHDH application was
held before an examiner of the Commission. Although KOA was denied
the right to intervene, it could, under § 1.195 of the
Commission's Rules, have appeared and given evidence. That rule
provides that the Secretary of the Commission shall maintain "a
record of all communications received by the Commission relating to
the merits of any application pending before the Commission," and,
if the application is designated for hearing, the Secretary must
notify all persons who have communicated with the Commission
regarding the application "in order that such persons will have an
opportunity to appear and give evidence at such hearing." Under
this rule. if KOA had appeared at the hearing upon the WHDH
application, it would have been entitled to
Page 319 U. S. 255
present evidence relating to the matters raised in its petition
for intervention. But, so far as the record before us shows, it
made no effort to take advantage of the right of participation
afforded it by § 1.195.
On December 9, 1940, the Commission issued proposed findings and
conclusions. Under these, the Commission found that the proposed
operation of WHDH, with use of a directional antenna,
"would not cause any interference to the primary service of
Station KOA, Denver, Colorado, and that such interference as the
proposed operation to cause to reception of KOA would be limited to
receivers in the eastern half of the United States;"
that the operation of WHDH as proposed in its application
would
"enable it to deliver service of primary signal quality to an
area having a population of 3,093,000, or to 621,000 more people
than are now included within the primary service area of the
station;"
that, by extending WHDH's hours of operation "a new primary
service to 94.9% of the Boston metropolitan area, including a
population of 2,185,000," would be provided; that, in addition to
the improved service to listeners in the Boston area, there would
be
"an improvement and extension of service which applicant station
(WHDH) now endeavors to render over the fishing banks situated off
the New England coast;"
and that the public interest would be served by amending §
3.25 of the Rules so as to make the frequency 830 kilocycles a I-B
channel, upon which more than one station could operate at night,
thereby permitting "more efficient use of the frequency."
On December 16, 1940, KOA again petitioned to intervene. Its
petition alleged only that the proposed action, if adopted, would
result in "interference to Station KOA in areas where KOA's signals
are now interference-free," would constitute a modification of
KOA's license without affording it an opportunity to be heard, and
would result in
Page 319 U. S. 256
"a degradation of service on 830 ke which will be prejudicial to
the priority rights in the United States on this channel, will
discriminate against service to rural listeners in order to furnish
additional service to the City of Boston which is already well
served."
KOA made no offer to contradict or add to the evidence adduced
at the hearing, nor did it dispute the Commission's conclusions as
to the extent of the interference which KOA would suffer from the
proposed operation of WHDH. Accordingly, on January 7, 1941, the
Commission denied KOA's second petition to intervene, but it
permitted KOA, as well as other "clear channel" stations interested
in the proceeding, to participate in the oral argument before the
Commission and to file briefs
amicus in order to determine
whether the proposed findings should be made final.
Meanwhile, on January 23, 1941, the President proclaimed the
North American Regional Broadcasting Agreement, 55 Stat. 1005. The
purpose of this Agreement, which was concluded at Havana on
December 13, 1937, among Canada, Cuba, Dominican Republic, Haiti,
Mexico, and the United States, was to
"regulate and establish principles covering the use of the
standard broadcast band in the North American Region so that each
country may make the most effective use thereof with the minimum
technical interference between broadcast stations."
The signatory Governments recognized that,
"until technical developments reach a state permitting the
elimination of radio interference of international character, a
regional arrangement between them is necessary in order to promote
standardization and to minimize interference."
The Agreement established priorities in the use of specified
clear channels, sixty-three of which were assigned to the United
States, and provided that each such channel
"shall be used in a manner conforming to the best engineering
practice with due regard to the
Page 319 U. S. 257
service to be rendered by the dominant stations operating
thereon."
In order to carry out the provisions of the Agreement, the
United States was obliged to make extensive adjustments in the
assignments of its existing stations. As part of the accommodations
required, stations assigned to the frequency 830 kilocycles were to
be moved to 850 kilocycles. This change affected both WHDH and KOA.
The license of KOA, like that of all other standard broadcast
stations, would have expired on August 1, 1940, while the WHDH
application was pending. The licenses of all stations, including
KOA and WHDH, were successively extended by the Commission, first
to October 1, 1940, and then to March 29, 1941, the effective date
of the Agreement. KOA had filed an application for renewal of its
license to operate on 830 kilocycles, 50 kilowatts, unlimited time.
On February 4, 1941, the Commission advised all applicants for
renewals, including KOA, that, under the Agreement, their operating
assignments were to be changed, and that their applications for
renewals would be regarded as applications to operate upon the new
frequencies unless the applicant wished to operate upon some other
frequency, in which event its application would be designated for
hearing. So far as appears, KOA did not notify the Commission that
it had any objection to its renewal application's being regarded as
an application to operate on the frequency 850 kilocycles.
Accordingly, when its license to operate on 830 kilocycles expired
on March 29, 1941, its license was renewed on the frequency 850
kilocycles. In no sense, therefore, did the action of the
Commission changing KOA's frequency assignment pursuant to the
North American Regional Broadcasting Agreement constitute a
modification of KOA's license. And, indeed, KOA makes no such
contention here, for review of Commission orders modifying station
licenses,
Page 319 U. S. 258
upon the Commission's own motion, can be reviewed only in a suit
brought in a district court under § 402(a).
See
Scripps-Howard, Radio, Inc. v. Federal Communications Comm'n,
316 U. S. 4,
316 U. S. 8-9,
note 3.
On March 26, 1941, three days before the Agreement was to become
effective, the Commission issued an order adopting the proposed
findings and conclusions upon the WHDH application, granting WHDH
authority to operate on 850 kilocycles, with power of 5 kilowatts,
day and night, and amending § 3.25 of its Rules so as to make
the frequency 850 kilocycles a I-B channel upon which more than one
station could operate at night. This order was made effective April
7, 1941.
On April 25, 1941, KOA filed a petition for rehearing before the
Commission, repeating in substance the allegations contained in its
earlier petitions to intervene. And on May 20, 1941, the
Commission, in an opinion that considered in detail each of the
allegations in the petition for rehearing, denied the petition. The
Commission stated that,
"in view of the importance of the matters involved in this
proceeding, we shall reexamine our findings and conclusions and the
record upon which they are based."
In summary, it found that a grant of the WHDH application
"would not result in interference to the primary service of
Station KOA, Denver, Colorado, and that such interference to the
reception of Station KOA as might reasonably be expected to result
from a grant of the Matheson [WHDH] application would occur in its
secondary service area and would be limited to receivers in the
eastern half of the United States, remote from the KOA transmitter;
that such secondary service as KOA could render in this area would
be of uncertain character because of its dependence upon the
characteristics of the individual receiver, the signal intensity,
and the signal to interference ratio involved in each individual
case;"
and
"that, although petitioner [KOA] contends it is entitled to
serve the rural
Page 319 U. S. 259
areas in which it is claimed interference will occur, it fails
to allege either that it has been providing a useful service in
such areas or point out, in terms of population, the nature and
extent of the claimed interference."
On June 7, 1941, KOA filed an appeal from the Commission's order
in the Court of Appeals for the District of Columbia under §
402(b)(2) of the Communications Act of 1934. Section 402(b)
provides for appeals to the Court from decisions of the
Commission
"in any of the following cases: (1) By any applicant for a
construction permit for a radio station, or for a radio station
license, or for renewal of an existing radio station license, or
for modification of an existing radio station license, whose
application is refused by the Commission. (2) By any other person
aggrieved or whose interests are adversely affected by any decision
of the Commission granting or refusing any such application."
The court below could not take jurisdiction of the suit unless
KOA had a right to appeal under § 402(b)(2) -- in other words,
unless it was "aggrieved" or its "interests were adversely
affected" by the granting of the WHDH application. Since the
Commission, in exercising its licensing function, must be governed
by the public interest, and not the private interest of existing
licensees, an appellant under § 402(b)(2) appears only to
vindicate the public interest, and not his own.
Federal
Communications Comm'n v. Sanders Radio Station, 309 U.
S. 470, 642;
Scripps-Howard Radio, Inc. v. Federal
Communications Comm'n, 316 U. S. 4. That
the Commission's order may impair the value of an existing
station's license is, in itself, no ground for invalidating the
order; it merely may create standing to attack the validity of the
order on other grounds. Whatever doubts may have existed as to
whether the ingredients of "case" or "controversy," as defined, for
example, in
Muskrat v. United States, 219 U.
S. 346, are present in this situation were dispelled by
our ruling in the
Sanders
Page 319 U. S. 260
case that the legality of a Commission order can be challenged
by one "aggrieved" or "whose interests are adversely affected"
thereby, even though the source of his grievance is not what is
claimed to make the order unlawful. But from this it must not be
concluded that anyone who claims to be "aggrieved" or who is in any
way adversely affected by Commission action has a right to appeal.
As the prevailing opinion in the Court of Appeals pointed out:
"In the present stage of radio, very few changes, either in
frequency or in power, can be made without creating some degree of
electrical interference. This may range from minute and practically
harmless interruption with remote and very occasional listeners in
secondary service areas to total obliteration in the primary field.
. . . It seems not unreasonable to read the [
Sanders]
opinion as requiring by implication that there be probable injury
of a substantial character. So much by way of limitation seems
necessary to prevent vindication of the public interest from
turning into mass appeals by the industry at large, with resulting
hopeless clogging of the administrative process by judicial review.
Likewise, with electrical interference, it is hardly necessary to
secure appellate championship by every broadcaster who may be
affected in only a remote and insubstantial manner."
132 F.2d 545, 548.
In order to establish its right to appeal, therefore, KOA had to
make a showing that its interests were substantially impaired by a
grant of the WHDH application. This, the record makes clear, it
failed to do. In its notice of appeal to the court below, KOA made
only a general allegation -- what courts normally regard as a
conclusion of law -- that the Commission's action resulted in a
"substantial modification" of its license. No supporting
allegations of fact were tendered. There was no claim that KOA's
economic position was in any way impaired, or that the proposed
operation of WHDH would cause substantial
Page 319 U. S. 261
interference with KOA, or that such operation would result in a
substantial loss of listeners to KOA, or that any areas of
substantial size would no longer be able to receive satisfactory
service from KOA. Neither in its petitions for intervention, nor in
its petition for rehearing before the Commission, nor in its notice
of appeal to the court below did KOA specifically challenge the
correctness of the Commission's findings.
The record affords no basis therefore for finding that KOA had
standing to appeal from the grant of the WHDH application. But even
if it had, I do not believe that KOA was afforded less opportunity
to participate in the proceedings before the Commission than the
statute requires. Assuming that the grant of the WHDH application
constituted a "modification" of KOA's license in the sense that the
scope of the operations authorized by KOA's license was thereby
limited, only § 312(b) would come into operation. Section
303(f) is inapplicable because the grant of the WHDH application
unquestionably did not change KOA's frequency, power, or hours of
operation. Both before and after the Commission's action, KOA's
operating assignment was precisely the same: 850 kilocycles, 50
kilowatts, unlimited time. And so the only question on this phase
of the case is was KOA afforded such opportunity of participation
in the WHDH proceeding as § 312(b) requires? That section
provides that no order modifying the license of any existing
station
"shall become final until the holder of such outstanding license
or permit 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."
KOA does not claim that it did not have sufficient notice,
formal and otherwise, of the proceedings upon the
Page 319 U. S. 262
WHDH application. Nor can there be any doubt that it had ample
and "reasonable opportunity to show cause" why WHDH's application
should not be granted. Under § 1.195 of the Commission's
Rules, it could have appeared and given evidence at the hearing
upon the WHDH application. That it did not take advantage of such
an opportunity is certainly no reason for saying that it had none.
KOA was permitted to argue before the Commission that the proposed
grant of the WHDH application should not be made final. It
submitted a petition for rehearing which the Commission considered
on its merits and which the Commission denied only after a detailed
review of all the contentions made by KOA.
The Court holds, nevertheless, that the Commission was required
to afford KOA more than all these opportunities to show cause.
Section 312(b) is construed to require a hearing in which the
licensee whose interests may be affected is entitled to intervene
as a formal party. Such a construction appears to me to disregard
the structure and language of the legislative scheme. Congress
might have been explicit and provided in § 312(b) that every
licensee whose interests may be affected by Commission action shall
be entitled to a hearing as an intervenor in the proceeding. As has
been noted, the draftsmen of the Communications Act of 1934 knew
how to use apt words when they wished to afford parties before the
Commission the right of "hearing." Section 309(a) requires the
Commission to afford an applicant for a license a "hearing," not
notice and an opportunity to show cause, before the application can
be denied. Section 312(a) gives a licensee a "hearing," not notice
and an opportunity to show cause, before its license can be
revoked. Section 303(f) provides that the Commission cannot change
the frequency, authorized power, or times of operation of a
licensee unless it affords such licensee a "public hearing," not
merely notice and an opportunity to show cause. But, for
reasons
Page 319 U. S. 263
which it deemed sufficient, Congress did not choose to make this
technical requirement of a "hearing" in specifying the procedure
for the protection of licensees who might be affected by Commission
action. Congress may well have desired to avoid the litigious waste
so abundantly established by the voluminous cases to which the
claim of intervention in courts has given rise. The requirement of
notice and an opportunity to show cause is not the equivalent of
the requirement of a "hearing." By imposing this requirement for
the adequate protection of substantial interests, Congress charged
the Commission with the duty of devising appropriate procedure
which would "best conduce to the proper dispatch of business and to
the ends of justice." § 4(j). The Commission's response was
§§ 1.102 and 1.195 of its Rules.
Can it seriously be claimed that the Commission acted beyond its
authority in providing that, before a licensee can intervene in
another proceeding, he must indicate some solid ground by setting
forth "the facts on which the petitioner bases his claim that his
intervention will be in the public interest"? Otherwise, anyone who
asserts generally that the grant of another's application will
affect his license may become a party to a proceeding before the
Commission and may, to the extent to which a party can shape and
distort the direction of a proceeding, gain all the opportunities
that a party has to affect a litigation although he has not made
even a preliminary showing that his intervention will be in the
public interest. I cannot read the requirement for "reasonable
opportunity to show cause why such an order of modification should
not issue" as a denial to the Commission of power to make such a
reasonable rule for sifting the responsibility of potential
intervenors. And if the Commission's rule for intervention was
within its discretionary authority in formulating appropriate rules
of procedure for the conduct of its proceedings, it is equally
clear that the Commission, in the
Page 319 U. S. 264
circumstances of this particular case, was justified in finding
that KOA made no substantial claim that the grant of the WHDH
application would impair KOA's economic interests or entail a
substantial loss of listeners or make any appreciable inroads upon
any areas served by KOA or otherwise substantially affect its
interest or that of the public.
To deny to the Commission the right to require a preliminary
showing, such as was found wanting here, before admitting a
petitioner to the full rights of a party litigant is to fasten upon
the Commission's administrative process the technical requirements
evolved by courts for the adjudication of controversies over
private interests.
See Federal Communications Comm'n v.
Pottsville Broadcasting Co., 309 U. S. 134,
309 U. S. 142,
309 U. S. 144.
It is to assume that the modes familiar to courts for the
protection of substantial interests are the only permissible modes,
regardless of the nature of the subject matter and the tribunals
charged with administration of the law. This is to read the
discretion given to the Federal Communications Commission to
fashion a procedure relevant to the interests for the adjustment of
which the Commission was established through the distorting
spectacles of what has been found appropriate for courts. We must
assume that an agency which Congress has trusted is worthy of the
trust. And, especially when sitting in judgment upon procedure
devised by the Commission for the fair protection of both public
and private interests, we must view what the Commission has done
with a generous, and not a jealous, eye.
MR. JUSTICE DOUGLAS, dissenting.
While I am in substantial agreement with the views expressed by
MR. JUSTICE FRANKFURTER, there are a few words I desire to add on
one phase of the case.
I agree with the Court that, if as we held in the
Sanders case
309 U.S.
470, a person financially injured by
Page 319 U. S. 265
the grant of a license has a standing to appeal, so does one
whose station will suffer from electrical interference if the
license is issued. I expressed my doubts, however, in
Scripps-Howard Radio, Inc. v. Federal Communications
Commission, 316 U. S. 4,
316 U. S. 20-21,
whether Congress endowed private litigants with the power to
vindicate the public interest when it gave the right to appeal
under § 402(b) to a person "aggrieved or whose interests are
adversely affected" by a decision of the Commission. I also
expressed my concern in that case with the constitutionality of a
statutory scheme which allowed one who showed no invasion of a
private right to call on the courts to review an order of the
Commission.
See Muskrat v. United States, 219 U.
S. 346. But if we accept as constitutionally valid a
system of judicial review invoked by a private person who has no
individual substantive right to protect, but who has standing only
as a representative of the public interest,
* then I think we
must be exceedingly scrupulous to see to it that his interest in
the matter is substantial and immediate. Otherwise, we will not
only permit the administrative process to be clogged by judicial
review; we will most assuredly run afoul of the constitutional
requirement of case or controversy.
Federal Radio Commission v.
General Electric Co., 281 U. S. 464.
Any actual controversy which may now be present in this case is
between KOA and the Commission. Any controversy which existed
between WHDH and the Commission has come to an end.
United
States v. Alaska S.S. Co., 253 U. S. 113,
253 U. S. 116.
The interest, if any, of the appellant KOA is the interest of a
private person and accordingly must be measured in terms of private
injury.
Page 319 U. S. 266
That interest must be substantial and immediate if the standard
of the statute and if the constitutional requirements of case or
controversy, as interpreted by the
Sanders and the
Scripps-Howard cases, are to be satisfied. It is necessary
to show in effect that KOA has sustained or is about to sustain
some direct and substantial injury (
see Massachusetts v.
Mellon, 262 U. S. 447,
262 U. S. 488)
-- an injury which, for the purpose of this case, must result from
electrical interference. The
Sanders case and the
Scripps-Howard case do not dispense with that requirement.
They merely hold that an appellant has his case decided in light of
the standards of the public interest, not by the criteria which
give him a standing to appeal.
I do not understand that the opinion of the Court takes a
contrary view. It only holds on this phase of the case that KOA
made an adequate showing under § 402(b). I disagree with that
conclusion.
* Referred to as a sort of King's proctor by Edgerton, J., in
Colorado Radio Corp. v. Federal Communications Commission,
73 App.D.C. 225, 118 F.2d 24, 28, and as "private Attorney
Generals" by Frank, J., in
Associated Industries of New York
State, Inc. v. Ickes, 134 F.2d 694.