(dissenting):
The opinion of the court states our difference of view. The ruling is that a petitioner for intervention in an administrative proceeding is entitled to an oral hearing as a matter of constitutional right, no matter what or how little he says in his petition. It is my view that a petition for intervention can be denied without a hearing, if the petitioner does not allege any fact which indicates a threatened damage to, or modification of, some existing right of his, or a fact which at least presents a substantial question in that regard.
Perhaps some preliminary observations will serve to clarify the issue. The opinion of the court describes WJR’s petition to the Commission as one for reconsideration of the decision in the Coastal Plains case. That is true; it was. But it was basically a petition to intervene, as it asked that WJR be made a party to the Coastal Plains proceeding.1 And that intervention was a necessary prerequisite to those portions of the petition which prayed for the hearing on the Coastal Plains application. What we are really considering is the petition to intervene. The question is: Does the Constitution require that WJR have an oral hearing upon its prayer to be made a party to the Coastal Plains case? In its present opinion, the court declines to consider that portion of the petition which prays for reconsideration of the Commission’s decision granting the Coastal Plains application.
The opinion discusses the right of access to the Commission. As I see it, that is not involved. WJR had such access. It filed its petition — in such form as it wished and with a supporting affidavit— and the petition was considered and disposed of by a long opinion. The point in controversy here is whether that right of access necessarily includes an oral hearing.
The court says that a petitioner is entitled to hearing upon questions of law. I do not dispute that proposition. But I say that a question of law must be presented before there need be a hearing upon it, and that questions of law are presented only upon allegations of fact. Such questions do not exist in vacuo in judicial or quasi-judicial proceedings. The mere assertion of an abstract proposition of law does not constitute a justiciable issue. The key to the present controversy is whether facts must be alleged in sufficient quality and quantity to present a question of law.
The court says that if no oral hearing be had upon a petition to intervene, the petitioner is “disabled to proceed further” and thus is left to the premise of infallibility on the part of the Commission. I do not agree with that view. Such a petitioner has an appeal just as if he had had a hearing, and if his allegations of fact are sufficient, in the view of the *244appellate court, to present a question as to his rights, the court will so hold. If the reply to this view be that the Constitution does not guarantee an appeal, then' I say that the Constitution leaves petitioners to the peril 'of fallibility of the Commission, hearing or no hearing. Moreover, the Commission is an executive- agency, and its actions must under the Constitution be subject-to judicial scrutiny for constitutional validity.
One more preliminary observation should be made. We are not discussing the desirability of - a hearing. -We are concerned only with whether a hearing was required. Courts are-without power to require a hearing in án administrative proceeding unless a hearing is- required by the Constitution, a statute, a valid administrative regulation, or a binding contractual' agreement. No matter how- desirable a hearing may be in the premises, or how greatly a hearing might facilitate sound disposition of a .controversy, the courts., cannot compel it, unless there be •some: requirement,,for. it other than the court’s own view. The courts cannot require an administrative agency to do that which is merely patently desirable. They can require only that the agency comply with the Constitution,, the statutes,,.and.its legal obligations-.. , :
Because the -question principally at -issue-is of such vast-practical importance in both administrative and judicial proceedings, I state my view upon it at somewhat greater length than might otherwise, be justified.
Appellant’s station, WJR, is a- Class I-A “clear channel’-’ station. Its rights are only. those contained in its license. The statute itself .is.explicit, in providing that no ■ license “shall be construed to create any right, beyond the terms, -conditions, and periods-of .the license.” The Supreme Court has given effect to rights of ■ an existing licensee in respect to changes, whether nominal or actual, in the terms of its license,2 but the Court has not suggested that the rights of a licensee are greater than the terms of his license.
The status and rights of a Class I-A clear channel station are described and defined in the Commission’s Rules and Regulations and in its “Standards of Good Engineering Practice”.3 .Its nighttime rights and its daytime rights are wholly different. At nighttime a -Class I-A clear channel station is given absolute protection; that is, no other station is permitted to= broadcast on its frequency at night. But the Rules- are just as clear that in the daytime other stations can 'be assigned to that frequency.4 The rights of a Class I-A station in daytime are defined with precision: “ * * * during daytime the Class I‘ station is protected to the 100 uv,/m ground wáve contour.”5 The area thus defined is called the normally protected contour or area.
■ 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 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 *245the groundwave of the station is of 100 microvolts per meter strength. The area within that irregular circumference is the normally protected area.
The Standards also prescribe conditions under which a station may have protection outside and beyond the area which is normally protected. They provide that when it is shown that “primary service” is rendered by a station beyond the normally protected contour, and that primary service to approximately 90 per cent of the population in that area is not supplied by another station, “the contour to which protection may be afforded in such cases will be determined from the individual merits of the case under consideration.”6 Thus, every station has normal protection, and those which comply with the prescribed requirements may secure such additional protection as the individual merits of their cases justify. Obviously, this additional protection would be upon specific application, showing, finding and award.
WJR had normal protection and no more. Its license contained no special provision as to protection. It does not allege that it ever applied to the Commission for additional protection based upon the individual merits of its case, as provided in the permissive sections of the Standards. The daytime protection afforded by its license was to its 100 uv/m groundwave contour, and no further.
In its petition to the Commission, WJR said that its present interference-free service area would be subjected to objectionable interference by the Coastal Plains station, and referred to an attached engineer’s affidavit for details. The engineer recited that he had made calculations of the relative field intensities of the two stations, and assumed that interference would be objectionable when the field intensity of the Coastal Plains station, exceeded 10 per cent of the time, was S per cent or more of the average measured field intensity, of WJR, which calculations are in accord with the Commission’s standards. These calculations showed, the engineer stated, that the service of WJR would be so interfered with between 10 A.M. and 2 P.M.- in an area in which the field intensity of that station averages 32 microvolts per meter or lfess during daytime hours. Thus WJR. did not allege to the Commission that the Coastal Plains operation would cause daytime interference with its signals or service within its 100 uv/m groundwave contour. Its engineer’s affidavit was quite explicit that the interference from Coastal Plains would occur in areas where WJR’s .average, signal strength was only 32 uv/m, which is well outside the 100 uv/m contour. So the facts alleged in the petition for intervention and hearing, as presented to the Commission, taken as fully true, do not show any threatened interference in the only area in which WJR is protected.
WJR also alleged in its petition to the Commission that “The substantial number of listeners now depending upon WJR service in this area will 'be deprived of such service through the operation of the proposed Tarboro [Coastal Plains] station.” The engineer’s affidavit contained no such statement and no factual basis for it. The extreme of the engineer’s conclusions was that the Coastal Plains signal would exceed 5 per cent of the WJR signal in the described area for more than 10 per cent of the time. The petition does not allege any facts which indicate a threat to any of WJR’s present property or license rights.
As I have said, it is my view that a person has not established his right to a hearing under the Fifth Amendment, under the Communications Act, or under the Commission’s Rules and Regulations, until he has alleged some fact which indicates a threatened damage to,. or modification of, some existing right of his; or facts which at least present a substantial question in that regard.7 If a person has a right of protection within a 100 *246tiv/m contour, and he alleges that a contemplated new operation will interfere with him at his 32 uv/m contour, he has not alleged that he would be deprived of property by the new operation, or that his license would be modified by it. He has not alleged, factually, that he is entitled to be heard upon the newcomer’s application.
I think that the applicable rule is stated in Beaumont, S. L. & W. R. Co. v. United States,8 where the Supreme Court said:
“Appellants claim that the Commission’s order, if enforced, will operate to deprive them of their property without due process of law in violation of the Fifth Amendment to the Constitution.
“It is well-established by the decisions of this court that, in order to invoke such constitutional protection, the facts relied upon to prevent enforcement of rates prescribed by governmental áuthority must be specifically alleged and from them it must clearly appear that the enforcement of the measure complained' of will necessarily deny to the utility the just compensation safeguarded to it by the Constitution.”9
The due process of law protective provision of the Constitution, like any other man-made law, must be invoked by an allegation of facts. In our jurisprudence a plaintiff must state a factual cause of action. Even the new Federal Rules of Civil Procedure, 28 U.S.C.A., require that the statement of the claim must show that the pleader is entitled to relief.10 Neither a blank sheet of paper nor a mere naked assertion of a legal proposition depicts a legal right in a certain person in a certain case or presents a justiciable controversy. Not every assertion, by a pleader, of lack of due process poses a constitutional question.11
Parenthetically I note that an oral argument upon its prayer for intervention, is not thé hearing which WJR requests. It did not ask, and does not now ask,12 that its prayer to be made a party be set. down for argument before the Commission. Its request is that the Coastal Plains application be set down for hearing. The court is not proposing to grant that request, or even to act upon it.
We have no difference of opinion upon, the proposition that if the facts as alleged clearly show that the person making' the allegations has an interest in the proceeding (i. e., that a legal right of his is. involved), he cannot be denied parti cipa*247tion in the proceeding without an opportunity to prove the facts; if he proves iis facts, he is entitled to participate in the proceeding from then on. And we .agree that if, upon the acts as alleged, a real and substantial question of law arises .as to whether he has an interest in the matter, due process of law requires that he be heard on the question of law. A real and substantial threat of injury is sufficient to invoke the protective clause.
Of course, the difference between what is and what is not a substantial question of law is often difficult to decide. But our practice has many instances in which it must be decided. Rule 61 of the Federal Rules of Civil Procedure and Rule 52(a) of the Federal Rules of Criminal Procedure, dealing with error not affecting “substantial rights”, are two. Rule 46(a) of the Criminal Rules, 18 U.S.C.A., •dealing with bail pending appeal when “a substantial question” is presented, is another. What is “substantial evidence” is still another. Perhaps the necessity for a “substantial” federal constitutional question as a prerequisite to the convening •of a three-judge court13 is the most vivid illustration.
The court relies upon an analogy to a demurrer, and extends its ruling to cover motions to dismiss, which are the new substitutes for demurrers. I doubt that the .analogy is complete, this being a petition to intervene in an administrative proceeding; but, apart from that consideration, I do not believe that the Constitution unequivocally and in all events requires a hearing upon a demurrer. It is my view that if a complaint fails to allege facts which even pose a substantial question whether the complainant is entitled to relief, the court can dismiss it without hearing. The Rules of Civil Procedure, having .abolished demurrers and substituted therefor motions, provide :14 “To expedite its 'business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition.” The ruling of the court in'this case would make that rule invalid when applied to motions to dismiss. I do not think it is invalid.
Moreover, the local rules of court in this jurisdiction provide for an oral argument of ten minutes on motions.15 If that oral argument were designed to fulfill constitutional requirements, it could not be limited to ten minutes. A rule designed to meet constitutional requirements, and effective to that purpose, would have to be phrased in terms of adequacy of presentation. In my view, the local ten-minute rule on motions is a rule of court convenience and has no basis in constitutional necessities.
The decision of the court that the Constitution requires an oral hearing on all petitions for intervention would cause extensive revision of the rules of administrative agencies. I have examined many of those rules and find no indication of any thought that such petitions must necessarily be set for oral hearing. The fact that they make no such provision is, of course, unimportant if they are constitutionally inaccurate in that respect. But it is an interesting circumstance that the requirement is not generally, if at all, recognized. All those rules will have to be revised under the opinion and decision of the court in the present case.
The foregoing observations in respect to the Fifth Amendment apply also to the contention that the Communications Act requires that WJR be given a hearing. The Act16 requires a hearing before an existing license can be modified, a licensed facility changed, or an application for modification of a license denied. A license is not being modified unless one of its terms is being changed, encroached upon or threatened in some way. If none of the rights conferred by the license is be*248ing impinged . upon, I find no, statutory-right to a hearing.
The point upon which we differ is elusive and difficult to pin down, but it is exceedingly simple. Perhaps if we visualize a proceeding we will make it clear. A case to which A and B are parties is pending before some tribunal. An outsider, M, appears and files a paper in which he asks to be made a party.17 But he does not allege any fact which shows that he has any interest in the. case, or that he would be affected by it, or even raises any substantial question in that respect. My view is that such an unsupported request can be denied without an oral argument. The court says that the Constitution requires that he have oral argument, in order that he may have a chance to persuade the tribunal that he has an interest despite his allegations. In its practical effect, the court requires that every petition for intervention be set for oral hearing, no matter what the petition says or fails to say. I say that tribunals have some-measure of leeway to dispose of such petitions without hearing, if they do not even raise a ■ substantial question as to the petitioner’s interest. In its theoretical concept, the court seems to hold that the Constitution protects all pleaders against stupidity, laziness or ineptness with the written word. My view is that the Constitution requires him who wants to participate in a pending case to exert at least a modicum of effort and to indicate in writing at least some shadow of factual ground for his prayer.
The court does not reach the merits of WJR’s petition. It is my view that it should proceed to consider whether the Commission, was right or wrong in denying the intervention. The error, if there was any, on the part of the Commission was in holding that WJR was not entitled to participate in the proceeding. The error was not, in my view, in merely so deciding upon the written petition without oral argument.
Technically, under the Rules and Regulations of the Federal Communications Commission, Part 1, relating to organization and practice and procedure, this ajjpellant’s petition was for rehearing nn-der § 1.390, rather than to intervene under § 1.388. But in effect it was a petition to intervene. The status of such a station was held to be that of an intervenor in Federal Communications Comm’n. v. National Broadcasting Co., 1943, 319 U.S. 239, 63 S.Ot. 1065, 87 L Ed. 1374.
Federal Communications Comm’n v. National Broadcasting Co., sup-ra note 1.
Standards of Good Engineering Practice concerning Standard Broadcast Stations, revised to June 1, 1944 (hereinafter referred to as “Standards”). Those contain' detailed statements relative to broadcasting standards and are auxiliary to the Commission’s Rules. Some portions of the Rules expressly refer to the Standards and, seemingly, they are accorded the force and effect of the main body of the Rules, to that extent at least. The parties before us are in agreement in so treating them.
Standards, pp. 1, 2.
Ibid.
Id., p. 4.
Some phases of this problem are discussed in the several opinions in National Broadcasting Oo. v. Federal Communications Comm’n, 1942, 76 U.S.App.D.C. 238, 132 F.2d 545, affirmed 1943, 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374. In that case it was undisputed that the new operation by WHDH would cause objectionable interference to KOA’s service in vio*246lation of its license, since the new operation was to be at night, when KOA, as a Class I station, was fully protected. KOA so alleged in its petition to intervene.
1930, 282 U.S. 74, 88, 51 S.Ct. 1, 75 L.Ed. 221.
See also Denver Union Stock Yard Co. v. United States, 1938, 304 U.S. 470, 484, 485, 58 S.Ct. 990, 82 L.Ed. 1469; Missouri Pacific R. Co. v. Norwood, 1931, 283 U.S. 249, 254, 255, 51 S.Ct. 458, 75 L.Ed. 1010; Aetna Insurance Co. v. Hyde, 1928, 275 U.S. 440, 446, 447, 48 S.Ct. 174, 72 L.Ed. 357; Lampasas v. Bell, 1901, 180 U.S. 276, 283, 21 S.Ct. 368, 45 L.Ed. 527, 530; Western Union Telegraph Co. v. Ann Arbor R. Co., 1900; 178 U.S.. 239, 243, 244, 20 S.Ct. 867, 44 L.Ed. 1052,-1054; Gold Washing & Water Co. v. Keyes, 1878, 96 U.S. 199, 203, 24 L.Ed. 656, 658, 659. Cf. Clark v. Kansas City, 1900, 176 U.S. 114, 118, 20 S.Ct. 284, 44 L.Ed. 392, 397: “Not a law alone, but a law and its incidence, are necessary to a justiciable right or injury; * *
Fed.R.Civ.P. 8(a).
One not affected may not raise a constitutional question. Tennessee Electric Power Co. v. T. V. A., 1939, 306 U. S. 118, 59 S.Ct. 366, 83 L.Ed. 543; Chicago Board of Trade v. Olsen, 1923, 262 U.S. 1, 42, 43 S.Ct. 470, 67 L.Ed. 839; and many other eases to the point collected in the digests, treatises and restatements. As to speculative inquiries in-hypothetical controversies, see Electric-Bond Co. v. Securities and Exchange-Comm’n. 1988, 303 U.S. 419, 443, 58 S.Ct. 678, 82 L.Ed. 936, 115 A.L.R. 105; Bourjois, Inc. v. Chapman, 1937, 301 U.S. 183, 188, 57 S.Ct. 691, 81 L.Ed. 1027; Massachusetts v. Mellon, 1923, 262 U.S. 447, 484, 488, 43 S.Ct. 597, 67 L.Ed. 1078.
Appellant “prays an order reversing-said decisions [the original grant of the Coastal Plains application on August 22,. 1946; the grant of a modified Coastal Plains application on October 14, 1946;. and the denial of appellant’s petition ons December 17, 1946] of the Federal Communications Commission and for such further relief as this court may deem just: and proper.”
Act of Aug. 24, 1937, 50 Stat. 752, 28 U.S.C.A. § 380a. California Water Service Co. v. Redding, 1938, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323; Jameson & Co. v. Morgenthau, 1939, 307 U.S. 171, 59 S.Ct. 804, 83 L.Ed. 1189.
Fed.R.Civ.P. 78.
Rule 9 (b) of the Rules of the District Court of the United States for the District of Columbia.
Secs. 312(b), 303(f), 300(a).
The court says that WJR was not an “outsider” to this proceeding. Certainly it was not a party, and it certainly had no right to be a party unless its license rights. . were threatened. Absent such threat, it was as niuch an outsider to the proceeding as if it had no broadcasting license. It seems to me that the Supreme Court was quite meticulous in making this clear by its discussion of the converse situation in the National Broadcasting Cor case, supra note 1.