NAB reports (Jan-Dec 1942)

rights but the priority rights of the United States and therefore the interests, present and future, of the listening public, and created discrimination against rural and in favor of urban listeners contrary to statutory requirements. These reasons appear to be a sufficient showing of both private and public interest and of adverse af¬ fectation to sustain the appeal. They require that it be considered on the merits, that is, on the question whether appellant was wrongfully refused a hearing before the Commission. II. The Right to Hearing The extent of the conflict concerning intervention appears from the extreme positions taken by appellant, on the one hand, that such a right arises from the Fifth Amendment as a matter of due process of law, and by the Commission and WHDH, on the other, that Congress has given the former an absolute discretion w’hich nothing in the Constitution inhibits or limits. It is said that existence of a right of appeal presupposes a right to intervene. The statute does not expressly so provide. But in view of our conclusion, for reasons to be stated, that appellant was entitled to intervene, it is not necessary to decide whether in some unusual circumstance one not entitled to become a party might appeal. . . , * On the other hand, the Commission’s argument is untenable that appellant has no right to be heard because it has no vested right in the frequency, or in its license or status thereunder, F. C. C. v. Sanders Bros., supra, or because the statute empowers the Com¬ mission to make rules and regulations, Section 154 (i), and to "conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice.” Section 154 (j). The fallacy is that one who has no such vested right b.as therefore no procedural protections in relation to the more tenuous rights, privileges or status he possesses.* VVhatever its proper label, “qualified right,” “privelege,” "status,” “licensee,” ap¬ pellant acquired something of value by virtue of its license and the statute. The label is not important. The fact that appellant has fulfilled statutory conditions and has received statutory ad¬ vantages, status and protections is important. Ttitun v. United States, 270 U. S. 568 (1926). That it may be deprived of these and that the Commission has discretion to take them away, wholly or in part, do not mean that it can do so in an unfair manner or without hearing.” The protections of procedural due process do not disappear because the substantive right affected is not a full-grown vested right like that in one’s castle at the com¬ mon law. The right of appeal in capital criminal cases is entirely statutory. But that does not put it entirely beyond constitutional limitation. Cf. Boykin v. Huff, 73 App. D. C. 378, 121 F. (2d) 865 (1941'), and authorities cited. Similarly, though statutory rights in the nature of occupational license, revocable in administrative discretion, may not be “property” for purposes of protections afforded bv substantive due process, thev are not unguarded against arbitrary administrative action.'” Procedural due process protects them against this, and does so notwithstanding the broad rule-making power and discretion given the Commission con¬ cerning the manner of conducting its business. The crucial issue therefore comes down to whether appellant has been deprived of an opportunity for a fair hearing to which it was entitled either by the statute or by elementary due process. The two prongs of the question may be considered together. It w’ill aid first to set forth the statutory provisions concerning hear¬ ing and those provided by the Commission’s Rules and Regulations which are pertinent both to hearing and to intervention. These then may be considered in the light of what w^as done by appellant and the Commission. A. The Statutory Provisions and Scheme of Hearings Provisions concerning hearings are contained in Sections 309 (a), 303 (f),312 (a), (b), and 409 (a) of the Act," in addition to Sec¬ tion 154 (i), (j) referred to above. ® See Davis, The Requirement oj Opportunity to be Heard in the .idministrative Process (1942) 52 Yale L. J. 1093, 1118-25, and authorities cited and discussed therein. 0 Ibid. Ibid. ^M8 Stat. 1082, 1085, 1086-7, 1096 (1934), 47 U. S. C. §§ 303 (f), 309 (a). 312 (a), (b), 409 (a) (1941). § 303 (f).’ “Make such regulations not inconsistent with law as it may deem necessary to prevent interference between stations and to carry out the provisions of this chapter: Provided, however. 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 con Section 309 (a) relates to applications for license, for renewal and for modification. The Commission is authorized to issue, renew or modify the license, if upon examination oj the appli¬ cation, it determines that public interest, convenience or necessity would be served by granting it. If it does not reach such a deci¬ sion on examining the application, then it must set the matter for hearing, “notify the applicant . . . and afford such applicant an opportunity to be heard under such rules and regulations as it may prescribe.” (Italics supplied.) Under Section 303 (f) the Commission is authorized to “make such regulations not inconsistent with law as it may deem neces¬ sary to prevent interference between stations and to carry out the provisions of this Act,” but with the proviso that “changes in the frequencies, authorized power, or in the times oj operation of any station shall not be made without the consent of the station licensee unless, after a public hearing, the Commission determines 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 . . .” (Italics supplied.) These are the most important provisions presently involved. Section 312 (a), (b) requires hearing with notice to the station licensee when revocation or modification of license is proposed. In the case of modification the licensee is to be “given reason¬ able opportunity to show cause” why the order should not issue, after having notice in writing. By Section 409 (a) a commissioner or examiner or the director of a division is empowered, when designated by the Commission, to hold hearings, except an examiner may not do so in adminis¬ tration of Title III with respect to a matter involving: “(1) a change of policy by the Commission, (2) the revocation of a station license, (3) new devices or developments in radio, or (4) a new kind of use of frequencies. In all cases heard by an exam¬ iner the Commission shall hear oral arguments on request oj either party.’’ (Italics supplied.) As has been noted. Section 154 (i). (j) confers broad power upon the Commission to make rules and regulations, issue lawful orders and determine the manner of conducting its business. Before turning to the regulations we may note that Section 309 (a) does not in terms guarantee an applicant or anyone else a hearing in all cases. The. matter may be determined upon exami¬ nation of the application, if in that manner the Commis.sion is venience or interest or will serve public necessity, or the provisions of this chapter will be more fully complied with." § 309 (a). "If upon examination of any application for a station license or for the renewal or modification of a station license the Commission shall determine that public interest, convenience, or necessity would be served by the grantim; thereof, it shall authorize the issuance, renewal, or 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 ooportunity to be heard under such rules and regulations as it may prescribe." § 312 (a). “Any station license may be revoked for false statements either in the application or in the statement of fact which may be required by section 308 hereof, or because of conditions revealed by such statements of fact as may be required from time to time which would warrant the Com¬ mission in refusing to grant a license on an original application, or for failure to operate substantially as set forth in the license, or for violation of or failure to observe any of the restrictions and conditions of this chapter or of any regulation of the Commission authorized by this chapter or by a treaty ratified by the United States: Provided, hmoever. That no such order of revocation shall 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." § 312 (b) “,4ny station licen.se after June 19. 1934. granted under the provisions of this chapter or the construction permit required hereby and after such date issued, may be modified by the Commission either for a limited time or for the duration of the term thereof, if in the judgment of the Commission such action will promote the public interest, convenience, and necessity, or the provisions of this chapter or of an3 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 out¬ standing license or permit shall have been notified in writing of the proposed action and the grounds or reasons therefor and shall have been given reason¬ able opportunity to show cause why such an order of modification should not issue," § 409 (a). "Any member or examiner of the Commission, or the director of any division, when duly designated by the Commission for such purpose, maj’ hold hearings, sign and issue subpenas, administer oaths, examine wit¬ nesses. and receive evidence at any place in the United States designated by the Commission; except that in the administration of sections 301-362 of this title an examiner may not be authorized to exercise such powers with respect to a matter involving (1) a change of policy by the Commission. (2) the revocation of a station licen.se, (3) new devices or developments in radio, or (4) a new kind of use of frequencies. In all cases heard by an examiner the Commission .shall hear oral arguments on request of either party.” September 18, 1942 — 553