NAB reports (Jan-Dec 1942)

allegation would be supported if it were shown that in some small area, thousands of miles from Denver, and of no actual or potential importance to appellant, a few listeners could and did at rare intervals get, without interference, a feeble signal from KOA, and that their reception of that signal would be made a little worse by WHDH’s modification. I think such an allegation would not show standing to appeal. Since appellant’s actual allegation may mean no more, we can accept it as showing standing to appeal only if we waive the rule that pleadings are to be con¬ strued against the pleader. If we take that step, I think we should affirm. I find nothing in the Communications Act which required the Commission to give appellant a hearing; quite the contrary. Yet the Commission gave appellant a hearing. It violated neither the Act nor due process. The Commission was asked to and did modify the license of WHDH. Sec. 309 (a) of the Communications Act provides in effect that the Commission may grant, though it may not deny, an application for modification without a hearing. Most modifi¬ cations of licenses affect other licensees, and Congress might easily have required that other licensees who stand to lose be given a hearing. It did not. So far as the Act is concerned, therefore, no hearing was necessary. True, Sec. 303 (f) requires that the licensee of a station be given a hearing if the Commission is to change that station’s “frequencies, authorized power, or . . . times of operation.” But that section is not applicable here, since neither the frequency, the power, nor the time of KOA, appel¬ lant’s station, is being changed. Similarly, Sec. 312 (b) forbids “modification” of a license without opportunity to the licensee to show cause why the license should not be modified ; but that section is not applicable, since appellant’s license is not being modi¬ fied in any particular.^ Its license merely authorized it to operate with specified equipment, frequency, power, and time, and still authorizes it to operate with the same equipment, frequency, power, and time. To say that appellant’s frequency or its license is being “changed” or “modified” seems to me an inapposite figure of speech. It is true that the Commission’s rules, until they were changed in the course of these proceedings, stated that only one Class I station “will be assigned” to the frequency of 850 kilocycles. But that statement of the Commission’s purpose or policy was not incorporated, or referred to, in appellant’s license. Therefore the license cannot, unless by a most liberal construction, be regarded as intended to make any exclusive grant to appellant, whether of equipment, frequency, power or time. Appellant’s license is no more exclusive in respect to frequency, power, and time than in respect to equipment. And the settled rule requires not a liberal but a strict construction of franchises and licenses." Moreover, Section 301 of the Act provides that “no . . . license shall be construed to create any right, beyond the terms, conditions, and periods of the license,” and the Supreme Court has said: “The policy of the Act is clear that no person is to have anything in the nature of a property right as a result of the granting of a license. Licenses are limited to a maximum of three years’ duration, may be revoked, and need not be renewed. Thus the channels presently occupied remain free for a new assignment to another licensee in the interest of the listening public.” ^ The Constitution does not, in my opinion, give appellant a right to a full hearing, of the trial type, in the proceedings before the Commission. In the absence of statute, licensing authorities are usually under no duty to give any sort of hearing to license holders before changing rules which affect the value of licenses.^ Appellant’s case is somewhat similar to that of a licensed automo¬ bile operator who hould demand that he be given a hearing before the speed limits are reduced. It is stronger in one respect; for appellant is, and the particular automobile operator is not. more likely than anyone else to be affected by the change proposed. But it is weaker in another respect; for appellant is not, and the auto¬ mobile operator is, forbidden to do after the change what he was free to do before the change. Only the consequences of appellant’s activities, and not the activities themselves, are affected bv the change which the Commission has made in the license of WHDH. Appellant is in substantially the same position as the owner of a 1 Sec. 303, including (f), deals in a summary way with the “powers and duties of Commission.” Sec. 312, including (b), deals in a detailed way with ‘‘revocation and modification” of licenses and with ‘‘notice and hearing.” = Detroit United Railway v. City of Detroit, 229 U. S. 39; Piedmont Power & Light Co. V. Town of Graham, 253 U. S. 193. 3 Federal Communications Commission v. Sanders Bros. Radio Station 309 U. S. 470, 475. *Cf. Lacquer & Chemical Corp, v. Mills, 22 F. 2d 697 (D. C. E. D. N. Y.)' affirmed, 22 F. 2d 700 (C. C. A. 2); certiorari denied, 276 U. S. 617. licensed garage or liquor store who is subjected to new competition by the licensing of a similar business nearer his own than would have been possible under the regulations which were in force when his own license was issued. It may be that appellant was, as a matter of due process, entitled to some sort of hearing. The Commission’s proceedings had a fact-finding aspect, and were more likely to affect appellant’s interests than those of any other person. But appellant was not entitled to a hearing which should include “the incidents of a trial in court.” “ Persons may be “heard” without being “permitted to intervene, and thus become parties.” “ Appellant was entitled to no more than a hearing reasonably adequate to protect its inter¬ ests and reasonably practicable for the Commission and the public; in other words, to a fair opportunity to bring its facts and argu¬ ments to the Commission’s attention.’' It had such a hearing — whether of right or of grace we need not inquire. Pursuant to the Commission’s Rule 1.195, it was given an opportunity to appear and present evidence. It chose not to do so. It was permitted to, and did, file a brief and make oral argument. Nothing more was required. It was not formally a party, and some aspects of a trial at law, including opportunity for cross-examination, may have been absent. To rule, as the majority of the court in effect do, that the Commission’s action was therefore erroneous, is to cramp the administrative process by forcing it into the very mold which it is designed to avoid.’’ Since the Commission had to decide primarily a question of policy and only incidentally a ques¬ tion of fact, the technique of a trial would have been clumsy and wasteful." Programs for Victory Col. Marriner to Urge Radio Courses In an effort to increase tl-.e number of ESMWT-N.AB courses in the Fundamentals of Radio, Col. A. W. Marriner, Director of Communications, Army Air Forces, is to communicate with all qualified schools urging them to give such training. This follows letters to state schools by broadcasters, which pointed out that tens of thousands of radio technicians were urgently required. Burton Writes 24 Schools Thanks are extended to the many station managers who have written educational institutions regarding the necessity for the training of tens of thousands of radio technicians. The longest single list of educational institutions receiving letters from an individual writer has been sent by D. A. Burton, owner, WLBC, Muncie, Ind. His list of Indiana institutions included twenty-four — liberal arts colleges. Teachers colleges, and Engineering schools. Request to write schools was made on page 531 of the NAB Reports of September 4 and on page 540 of the September 11 issue. If you have not written in accordance with the September 4 and 11 requests, we sincerely believe that it will help the war effort if you will do so. “What Can I Do” Is Going Well Serving as an object lesson to young and old is a letter written by an 84-year-old lady, Mrs. Mary S. Dodge, Boston, Mass., in ■■’Norwegian Nitrogen Products Co. v. L'nited States, 288 U. S. 294, 316, 31 7. ^ The Chicago Junction Case, 264 U. S. 258, 268. “The ‘hearing’ is the hearing of evidence and argument.” Morgan v. United States, 298 U. S 468, 480. When an importer has contested the valuation of his goods by the customs service, and exercises his right to have them valued by appraisers, the question “is not to be tried before the appraisers as if it were an issue in a suit in a judicial tribunal.” Auffmordt v. Hedden, 137 U. S. 310, 323. If he “is afforded such notice and hearing as enables him to give his views and make his contention in respect of the value of his goods, he cannot complain.” Origet V. Hedden. 155 U. S. 228, 238. ® Cf. Federal Communications Commission v. Pottsville Broadcasting Co., 309 U. S. 134. Davis. The Requirement of Opportunity to be Heard in the Adminis¬ trative Process, 51 Yale L. J. 1093, 1098. .Appellant could have had a hearing of the trial type if it had chosen to comply with the Commission’s rule regarding petitions to intervene. September 18, 1942 — 561