The opinion
STEPHENS, Associate Justice
(concurring)
I concur in the conclusion of Judge Rutledge that the appellant has not only the right to appeal to this court under § 402(b) (2) of the Communications Act, 47 U.S.C.A. § 402 (b) (2), but that it had also the right to intervene in the proceeding before the Commission, and I am therefore in agreement with Judge Rutledge that the order should be reversed and the case remanded for further hearing. I am also in agreement with the views and conclusions expressed by Judges Groner and Vinson in their separate opinion. I desire to add the following:
I am aware that the provisions in the Communications Act for hearings speak in terms of licenses and rights which are undergoing alteration, suspension or revocation through direct action of the Commission thereon, and not in terms of the rights of existing licensees — such as those of the appellant — which will be impaired by the direct action of the Commission in *564 extending the facilities of another licensee. But I think that by clear implication the safeguards of the Act operate for the benefit of such a licensee as the appellant. For it cannot be doubted that the modification — in the instant case the extension of facilities — of one license right may have the consequence of impairing, or even of destroying, the business of another licensee; this in practical effect is a modification or revocation of his license. A contrary view would regard form rather than substance. That the granting of new or additional station rights may have the consequence of impairing or destroying the business of an existing licensee is recognized in Federal Communications Commission v. Sanders Bros. Radio Station, 1940, 309 U.S. 470 , 60 S.Ct. 693 , 84 L.Ed. 869 ,, 1037, where the Supreme Court, after stating that it is not the purpose of the Act to protect a licensee against competition but to protect the public, that Congress intended to leave competition in the business of broadcasting, stated also:
“This is not to say that the question of competition between a proposed station and one operating under an existing license is to be entirely disregarded by the Commission, and, indeed, the Commission’s practice shows that it does not disregard that question. It may have a vital and important bearing upon the ability of the applicant adequately to serve his public; it may indicate that both stations — the existing and the proposed — will go under, with the result that a portion of the listening public will be left without adequate service; it may indicate that, by a division of the field, both stations will be Compelled to render inadequate service. ...” 309 U.S. 475, 476 , 60 S.Ct. 698 , 84 L.Ed. 869, 1037 .
It is true that in the Sanders case -the statement is made that the policy of the Act is that no person is to have “anything in the nature of a property right as a result of the granting of a license.” But the opinion in that case also recognizes that station licensees may be financially injured by the issue of a license to a competing station. The language first quoted must be read in connection with the opinion as a whole and in connection with the utterances of the Supreme Court in Federal Communications Commission v. Pottsville Broadcasting Co., 1940, 309 U.S. 134 , 60 S.Ct. 437 , 84 L.Ed. 656 , and Federal Radio Commission v. Nelson Bros. Co., 1933, 289 U.S. 266 , 53 S.Ct. 627 , 77 L.Ed. 1166 , 89 A.L.R. 406 . In the Pottsville case the Court said: “To be sure, the laws under which these [administrative] agencies operate prescribe the fundamentals of fair play. They require that interested parties be afforded an opportunity for hearing.” In the Nelson Bros, case the Court said: “Whether the Commission applies the legislative standards validly set up, whether it acts within the authority conferred or goes beyond it, whether its proceedings satisfy the pertinent demands of due process, whether, in short, there is compliance with the legal requirements which fix the province of the Commission and govern its action, are appropriate questions for judicial decision.” In view of the Pottsville and Nelson Bros, cases, and in view of the provisions of the Communications Act which recognize rights, limited in time and quality by the terms of the licenses issued, in station licensees (see especially §§ 301, 309(b) (1), (2), 319(b), 47 U.S.C.A. §§ 301 , 309(b) (1, 2), 319(b), I think it clear that a station license issued under the Communications Act for a definite term for the conduct of a broadcasting business requiring substantial investment is more than a mere privilege or gratuity. Whether or not it may be technically called a property right, it is a thing of value to the person to whom it is issued and a business conducted under it may be the subject of injury. I think the Supreme Court in the Sanders case in its reference to the absence of “anything in the nature of a property right as a result of the granting of a license” was using the term property right in the sense of a right absolute or indefeasible. It is clear of course that under the Communications Act a station licensee’s rights are subject to modification, or even to revocation, in the public interest. But I do not think the Sanders decision was intended to be taken as meaning that no right even of a limited and defeasible nature exists in a licensee. Nor do I think that the decision was intended to mean that an existing broadcasting station and the investment therein may be injured or destroyed by the introduction of competition or through the extension or modification of the facilities of other licensees without a hearing before the Commission on the question whether the public interest, convenience and neces *565 sity will be served by such injury or destruction.
Even if the Communications Act were doubtful in its recognition of the existence of rights in licensees and in its provision for hearings upon the question whether the public interest requires the reduction or destruction of such rights, I think it would be the duty of the courts to construe the Act as recognizing such rights and providing for such hearings — and this for two reasons. First, in the absence of indubitably clear language requiring such a conclusion, it would be unthinkable to conclude that the Congress would provide for the granting of station licenses for radio broadcasting contemplating, in connection with operating a station, investment in building space and equipment, the hiring of talent, the contracting for advertising, and the employment of labor, but at the same time fail to recognize that by whatever technical name they might be called, whether property rights or license rights, interests would arise, in the persons to whom licenses were granted, which should as a matter of fair play not be impaired or destroyed by the Communications Commission without a hearing upon the question whether the public interest would be served by their impairment or destruction. Right to a hearing before injury by the government in the public interest is one of the fundamental decencies guaranteed by democratic institutions. It is the safeguard of the Anglo-American legal system against arbitrary or capricious action by public authorities. No purpose should be attributed to Congress to deny such a right. Second, to construe doubtful language of Congress as permitting the impairment or destruction of a licensee’s interests without a hearing would be to invalidate, under the due process clause of the Fifth Amendment, the action of Congress. That that clause protects against the arbitrary impairment or destruction of substantial rights even though they are limited by the public interest, is not open to doubt. Cf. Northern Cedar Co. v. French, 1924, 131 Wash. 394 , 230 P. 837 .