Opinion of the Court. 337 U.S. 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 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. 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 0.25 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. 265 Opinion of the Court. time hours," 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" 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 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. 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. Opinion of the Court. 337 U.S. 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." 5 As the Court of Appeals later treated this ruling, it was the equivalent of holding as a matter of law, in 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 265 Opinion of the Court. 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 WJR'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 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," paragraph (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 nighttime 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. Opinion of the Court. 337 U.S. above, 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 at 231. "Only Congress could confer such a priority." Federal Communications Commission v. Pottsville Broadcasting Co., 309 U. S. 134, 145. Obviously the most important question is the Court of Appeals' ruling that Fifth Amendment due process re 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. |