Federal Communications Commission v. Wjr, the Goodwill Station

Decision Date06 June 1949
Docket NumberNo. 495,495
Citation93 L.Ed. 1353,337 U.S. 265,69 S.Ct. 1097
CourtU.S. Supreme Court

Sol. Gen. Philip B. Perlman, Washington, D.C., for petitioner.

Mr. Louis G. Caldwell, Washington, D.C., for respondents.

[Argument of Counsel from page 266 intentionally omitted] 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,'1 to broadcast day and night from Detroit, Michigan, on a frequency of 760 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'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 day- time hours,'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'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 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-permeter 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.'5

As the Court of Appeals later treated this ruling, i was the equivalent of holding as a matter of law, in 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 possi le '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 above,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, 69 S.Ct. 641.

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, 145, 60 S.Ct. 437, 443, 84 L.Ed. 656.

Obviously the most important question is the Court of Appeals' ruling that Fifth Amendment due process re- quired 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 * * *.'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 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...

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