# National Broadcasting Co. v. Federal Communications Commission

> Court of Appeals for the D.C. Circuit · January 18, 1943 · 132 F.2d 545

URL: https://www.frixlaw.com/law-library/cases/9637721

## Case

- **Full name:** NATIONAL BROADCASTING CO., Inc., v. FEDERAL COMMUNICATIONS COMMISSION (MATHESON RADIO CO., Inc., Et Al., Intervenors)
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** January 18, 1943
- **Citations:** 132 F.2d 545
- **Precedential status:** Published
- **Opinion:** Concurrence by Groner
- **Judges:** Groner, Stephens, Miller, Vinson, Edgerton, Rutledge
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9637721

## Opinion text

*563 GRONER, C. J., and VINSON, J.
(concurring) .
Judges GRONER and VINSON concur in the conclusion of Judge RUTLEDGE that appellant has not only a right to appeal to this court under Section 402(b) (2) of the Act, 47 U.S.C.A. § 402 (b) (2), but also the right to intervene in the proceeding before the Commission. We are, therefore, in agreement with Judge RUTLEDGE that the case should be reversed and remanded for further hearing.
In view of the importance of the principles involved, we consider it desirable, however, to set out in a word our separate views as to the meaning and effect of those Sections of the Act upon which we all agree the decision must turn.
We are in agreement with Judge RUTLEDGE that under Section 303(f), 47 U.S.C.A. § 303 (f), the Commission should have accorded appellant the right to participate in the hearing as a party. But we are also of opinion that, since in the facts of this case it is apparent that the granting of the application of the Matheson Radio Company, Inc., operators of Station WHDH at Boston, would result in what amounts, if substance be regarded rather than form, to a modification of appellant’s license, Section 312(b) of the Act, 47 U.S.C.A. § 312 (b), also provides a right of participation by appellant in the proceedings under that application. While the question is no longer material here— since we assume that, in the present state of. the record, the Commission' will reopen the proceedings and permit the intervention of appellant as a party — we express our disagreement with the view of Judge RUTLEDGE that the Commission, in its discretion, may exclude appellant from participation. until after the proposed findings of fact have been made. It is our view that participation in the hearing, under either Section 303(f) or Section 312(b), should have been accorded both to appellant and to Matheson Company from the outset. It is true that Section 309(a), 47 U.S.C.A. § 309 (a), appears to contemplate that if upon examination of an application for a station license, or the renewal or modification thereof, the Commission shall make a. determination in favor of the application, it need not accord a hearing to the applicant. But we think, whatever the effect otherwise of this section may be, it is inapplicable in the facts of this case. Here the application of Matheson Company for an extension of its facilities is in effect an application, as we have said, the granting of which will, if substance be regarded, modify the license of appellant. In the circumstances, we think Section 312(b) is applicable and that both appellant and the Matheson Company were entitled to participate in the proceedings as parties and with the rights of parties. We think the statute contemplates that a licensee’s right, although limited and defeasible, shall not be modified or destroyed without a hearing. To allow a hearing only after proposed findings of fact have been made is to deprive appellant of participation during the crucial period of the proceeding — that is, when the evidence is being taken and the record being made up. Appellant’s interest existed from the beginning, and it is not enough that that interest was considered by the Commission. It is axiomatic that one whose rights will be affected, not only may himself engage in their protection, but must do so affirmatively and at every step in the proceedings — or take the consequences of his default. Red River Broadcasting Co. v. Federal Communications Commission, 69 App.D.C. 1 , 98 F.2d 282 . There was no default in this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9637721. Public record. Not legal advice.