## Facts

- Fetzer Broadcasting Co. applied to the FCC for a construction permit to build a new station in Grand Rapids, Michigan, operating on 1230 kc with 250 watts, unlimited time.
- Before the FCC acted on Fetzer’s application, Ashbacker Radio Corp., licensee of station WKBZ in Muskegon, Michigan, applied to change WKBZ’s frequency from 1490 kc to 1230 kc (same power and operating time).
- The FCC determined that simultaneous operation on 1230 kc at Grand Rapids and Muskegon would cause intolerable interference and treated the applications as mutually exclusive.
- The FCC granted Fetzer’s application without a hearing and, on the same day, designated Ashbacker’s application for hearing.
- Ashbacker petitioned the FCC for hearing/rehearing and relief from the Fetzer grant; the FCC denied the petition, asserting Ashbacker would have an opportunity at its own hearing to show its proposal better served the public interest.
- Ashbacker sought judicial review as a “person aggrieved” by the Fetzer grant; the D.C. Circuit dismissed for lack of jurisdiction, concluding Ashbacker was not aggrieved.

## Issues

1. Whether § 309(a) of the Communications Act requires the FCC to hold a comparative hearing on both of two mutually exclusive broadcast applications before granting either.
2. Whether an applicant whose mutually exclusive application is prejudiced by the FCC’s grant to a competitor is a “person aggrieved or whose interests are adversely affected” entitled to judicial review.

## Decision

- The Supreme Court reversed the D.C. Circuit and remanded.
- The Court held that when the FCC has two mutually exclusive applications before it, granting one without hearings on both denies the other applicant the hearing required by § 309(a), even if the other application is later set for hearing.
- The Court held that the applicant disadvantaged by the grant of a mutually exclusive competing application is an aggrieved person entitled to seek judicial review of the grant.

## Legal Principles

- When two broadcast applications are mutually exclusive, the FCC must provide a meaningful comparative hearing on both before granting one; a later hearing on the “losing” application is inadequate if the earlier grant effectively forecloses fair consideration.
- A statutory hearing right is not satisfied by procedures that preserve a hearing in form but substantially nullify it in practical effect by altering burdens and baseline conditions through an earlier grant.
- An applicant whose opportunity for a permit is impaired by the grant of a mutually exclusive competing application is sufficiently adversely affected to obtain judicial review of the grant.

## Conclusion

The Court required the FCC to treat mutually exclusive broadcast applications through a comparative hearing process and confirmed that an applicant disadvantaged by an exclusive competing grant may obtain judicial review, preventing the agency from effectively deciding the contest through a grant issued without hearing.


Ashbacker Radio Corp. v. Fed. Commc'ns Comm'n, 326 U.S. 327 (1945)