L. B. Wilson, Inc. v. Federal Communications Commission

PRETTYMAN, Associate Justice

(concurring).

I concur in the result in this case. The appellant asserted a threatened invasion of its license rights, i. e., objectionable interference within its protected contour area. The facts as alleged raised substantial and serious legal questions under the Commission’s Rules and Regulations and Standards and under the North American Treaty, as pointed out in the opinion of the court. Under the scheme of procedure laid down in the Communications Act, appellant was entitled to be heard by the Commission upon those questions before this court is called upon to review the Commission’s disposition of the matter. Also, I agree that due process of law in the disposition of a petition to intervene requires a hearing in the form of an oral argument when the facts alleged in the petition raise a substantial question of law as to petitioner’s rights in the principal proceeding. As the Supreme Court said about oral presentation of evidence, 1 so it is in respect to oral argument — it is designed to afford the safeguard that the one who decides shall be bound in good conscience to consider the argument and to reach his conclusions uninfluenced by extraneous considerations. 2

“Due process of law” is not a term of fixed content. It may vary as circumstances vary. The Supreme Court has held that in some situations written argument is sufficient to comply with the requirement for a hearing, 3 but that in other circumstances oral hearing is necessary. 4

We are considering due process of law in the disposition of a petition for intervention — not due process in the principal proceeding. The requirements of due process vary as the situation presented by the petition varies. Moreover, due process may be afforded in orderly steps. Thus, the legal sufficiency of the allegations of fact in the petition may be tested before it is necessary to test the truth of the allegations. Such is the regular procedure of courts.

Sometimes these petitions present questions of law, sometimes questions of fact, sometimes both, and sometimes no question is presented because the alleged facts, taken as true, do not indicate under any legal concept that any right of the petitioner is involved in the proceeding. If the facts alleged in a petition clearly show that rights of the petitioner are involved in the principal proceeding, the petition cannot be denied without a hearing in which the petitioner has an opportunity to prove those facts. If the facts are disputed but there is also a question of law as to whether, even if the facts be true, petitioner’s rights are involved, the petition cannot be denied without a hearing upon the legal question; that hearing may consist of an oral argument *808 upon the legal question alone; if it then appears that the alleged facts, if true, show petitioner’s rights to be involved, the petition cannot be denied without further hearing upon the truth of the alleged facts. The latter composite supposition is the present case, and I agree that this petitioner had a right to an oral hearing upon the questions of law as to his rights raised by his allegations of facts, assuming the facts to be as alleged; and if his right be established upon the premise of the truth of his allegations, then his petition could not be denied without a hearing at which he could attempt to prove his facts.

But I do not agree with that portion of the opinion of the court which indicates that no matter what a petitioner for intervention says in his petition, he is entitled as of statutory and constitutional right to an oral hearing. It is my view that if, upon the facts' as alleged in the petition, not even a substantial question, by dint of which petitioner would have a legal right involved, is raised, the petition can be denied without an oral hearing. In other words, a petitioner for intervention must allege some fact or facts which, if true, present a substantial legal question as to whether he has a right involved. The alleged facts must present an arguable question before petitioner has an enforceable right to argue. The protection of the Constitution must be invoked by allegations of fact. The question is not whether such a petitioner is entitled to the protection of the Constitution; everybody is so protected at all times. The question is what that protection consists of. The question is what due process requires when a petitioner for intervention in a pending proceeding does not allege any fact which, under any substantially conceivable theory of law, shows him to have a right involved. I think that such a petitioner has no right to require a hearing.

Morgan v. United States, 1936, 298 U.S. 468, 480 , 56 S.Ct. 906 , 80 L.Ed. 1288 .

This appellant did not request oral argument before the Commission on this petition, and under ordinary circumstances this might be sufficient to deny Mm that right. See Rules of Commission relating to Practice and Procedure, § 1.854 (c) and (d). But since tMs appellant was at all times demanding an oral hearing, although not on his petition, I think his right to one on the petition was adequately preserved.

Morgan v. United States, supra note 1 , 298 U.S. at page 481 , 56 S.Ct. 906 , 80 L.Ed. 1288 . See also Johnson & Wimsatt v. Hazen, 1938, 69 App.D.C. 151 , 99 F.2d 384 ; Mitchell v. Reichelderfer, 1932, 61 App.D.C. 50 , 57 F.2d 416 .

Londoner v. Denver, 1908, 210 U.S. 373 , 28 S.Ct. 708 , 52 L.Ed. 1103 .