Wiley Blount Rutledge

“ That the scope of its decision might not be misunderstood, the court expressly stated: 'A ruling upon a demurrer is obviously not interlocutory for if the demurrer is sustained the pleader's cause (or defense) is dismissed upon the merits * * *.' [7] Moreover, except as to the indicated interlocutory matters, the right of oral argument on questions of law ('as well as * * * those of fact' when raised) was said to be 'not conditional upon the ex parte view of the tribunal as to whether there is a substantial question as to the sufficiency of the allegations of a complainant.' 174 F.2d 240. ”

“ The dissenting judges in the Court of Appeals considered the question insubstantial, because they thought, contrary to respondent's position, that the Commission's Standards of Good Engineering Practice applied as a limitation upon respondent's license and therefore excluded it from protection against interference such as respondent alleged, i.e., outside the contours prescribed by the Standards. ”

“ Descending to the concrete setting of this case in the provisions of the Communications Act, [11] we are unable to conclude that the procedure Congress has provided for determination of the questions respondent raises affords any semblance of due process deficiency.
The statute itself provides in terms for oral argument before the Commission in a single situation only, namely, in proceedings heard initially before an examiner under § 409 (a) . ”

“ 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. ”

“ Lest this spacious form of statement be taken as too sweeping and abstract to pose a justiciable issue, we think the specific context of fact and decision out of which the question has arisen must be set forth. ”

“ 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.↑ 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. ”

“ It is in this context of statutory provisions and judicial decision that WJR's claim of right to participate in the Commission's proceedings, including the right of oral argument, and of denial of due process through the denial of its petition for reconsideration arises and must be considered. ”

“ While that section requires notice and statement of grounds for any proposed order of modification before such order 'shall become final,' it does not specify that further proceedings shall include the right to oral argument; it requires only that the holder of the outstanding license to be modified 'shall have been given reasonable opportunity to show cause why such an order of modification should not issue' before the order becomes final. ”

“ 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-permeter contour. ”

“ It is clear also that in this ruling the court identified 'hearing' with 'oral argument' insofar as determination of questions of law are concerned. We are thus confronted, so far as the court's decision went, with no question purely of statutory construction but solely, at bottom, with one of constitutional import and effect.↑ 'The Fifth Amendment guarantees no particular form of procedure; it protects substantial rights.' National Labor Relations Board v. ”