Communications Media Center at New York Law = School

OFFICE OF COMMUNICATION OF THE UNITED CHURCH = OF CHRIST=20 v. FCC

OFFICE OF COMMUNICATION OF THE UNITED CHURCH = OF=20 CHRIST, Aaron Henry, Robert L. T. Smith, and United Church of = Christ at=20 Tougaloo, Appellants,
v.
FEDERAL COMMUNICATIONS COMMISSION,=20 Appellee. Lamar Life Broadcasting Company, Intervenor =

No.=20 19409

UNITED STATES COURT OF APPEALS FOR THE = DISTRICT OF=20 COLUMBIA CIRCUIT

425 F.2d 543

June 20, = 1969,=20 Decided SUBSEQUENT HISTORY: Reargued February 18, 1969. Rehearing = En Banc=20 Denied September 5, 1969.

JUDGES: Burger, McGowan = and Tamm,=20 Circuit Judges.

On Rehearing: Bazelon, Chief Judge, = and=20 Wright, McGowan, Tamm, Leventhal, Robinson, MacKinnon and Robb, = Circuit=20 Judges, in Chambers.

OPINIONBY: BURGER=20

OPINION: [*544] BURGER, Circuit Judge: =

This=20 case returns to the Court again after hearings held pursuant to an = earlier=20 opinion of this Court in which we directed that intervenors = representing=20 segments of the licensee's listening public were to be permitted = to=20 intervene and participate. n1 No additional intervenors thereafter = sought=20 to take part in the Commission proceedings. n2

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n1 Office of Communication of the United Church of = Christ v.=20 FCC, 123 U.S.App.D.C. 328, 359 F.2d 994 (1966).

n2 = The fact=20 that no additional intervenors brought their case to the = Commission=20 substantiates our earlier observation that:

The = fears of=20 regulatory agencies that their process will be inundated by = expansion of=20 standing criteria are rarely borne out. Always a restraining = factor is the=20 expense of participation in the administrative process, an = economic=20 reality which will operate to limit the number of those who will = seek=20 participation; legal and related expenses of administrative = proceedings=20 are such that even those with large economic interests find the = cost=20 burdensome. Moreover, the listening public seeking intervention in = a=20 license renewal proceeding cannot attract lawyers to represent = their cause=20 by the prospect of lucrative contingent fees, as can be done, for = example,=20 in rate cases.

Church of Christ, supra note 1 at = 340, 359=20 F.2d at 1006.

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The = action of=20 this Court in remanding for hearings with listening-public = intervenors=20 taking part followed the Commission's 1965 action which granted = the=20 licensee a "probationary" one year license. n3 This unusual = Commission=20 action underscored that in the proceedings involving the = application for a=20 three-year renewal (from 1964 to 1967) the Commission had not been = able to=20 conclude that the licensee met the burden of showing that renewal = of its=20 license for three years was in the public interest. =

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n3 Lamar Life Broadcasting Co., 38 F.C.C. 1143 = (1965).=20

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[*545] Following various = complaints=20 filed with it, in 1962 the Commission had initiated its own field=20 investigation into the programming operations of certain = Mississippi=20 broadcast stations, including WLBT. This investigation = precipitated a July=20 25, 1963, letter from the Commission requesting the licensee's = comments on=20 listed questions as to its programming policies and set forth some = of the=20 specific findings of the field investigation on these matters. The = Commission's consideration of WLBT's reply was pending when the = licensee=20 filed an application for renewal of its license for the June 1, = 1964 to=20 June 1, 1967 period.

In reviewing these responses = prior to=20 its award of the one-year probationary grant, the Commission = noted, inter=20 alia:

The question is rather whether the licensee = complied=20 with the requirements of the fairness doctrine -- i.e., whether, = having=20 presented one side of a controversial issue of public importance, = it=20 sought affirmatively to encourage and implement the presentation = of=20 contrasting viewpoints. The licensee's response is not fully = satisfactory=20 in this respect.

* * *

In short, when = a=20 fairness complaint is made, a licensee relying upon network = programs to=20 balance local broadcasts has the burden of demonstrating that the = network=20 shows carried by it did present contrasting viewpoints to those = expressed=20 in the local broadcasts. That showing has not been made here.=20

Lamar Life Broadcasting Co., supra note 3 at 1146, = 1147-1148=20 (emphasis added). Moreover, in setting forth the specific = conditions=20 attached to its one-year probationary award, the Commission = provided:=20

(iv) That the licensee immediately cease = discriminatory=20 programming patterns. Thus, it is up to the licensee to make the=20 programming judgment whether or not to have a daily 1-minute = devotional=20 program at noon, in which appearances are rotated among the area = churches=20 in the area on the basis of race. Such a practice is obviously=20 inconsistent with the public interest; indeed, we note that the = licensee=20 does not try to defend it.

Id. at 1154 (emphasis = added). In=20 discussing the Commission's action we noted that the Commission = had found=20 that the licensee's prior conduct prevented the grant of a full = term=20 license. n4

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n4 At that time we = observed:=20

The Commission in this Court argues that it accepted = all=20 Appellant's allegations of WLBT's misconduct and that for this = reason no=20 hearing was necessary. Yet the Commission recognized that WLBT's = past=20 behavior, as described by Appellants, would preclude the statutory = finding=20 of public interest necessary for license renewal; hence its grant = of the=20 one-year license on the policy ground that there was an urgent = need at the=20 time for a properly run station in Jackson must have been = predicated on a=20 belief that the need was so great as to warrant the risk that WLBT = might=20 continue its improper conduct.

Church of Christ, = supra note=20 1 at 341, 359 F.2d at 1007.

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When = the=20 matter was again before the Commission on our remand, therefore, = it was in=20 a posture that the licensee had yet to demonstrate that it was in = the=20 public interest for the license to be renewed. This was a less = favorable=20 posture for the licensee than would have been the case absent the=20 "probationary license" grant. This is important, but its = significance=20 seems to have eluded the hearing Examiner and the Commission as = well; we=20 emphasize this now to remove any lingering doubts as to our = evaluation of=20 a "probationary" grant -- a grant which by its nature assumes that = the=20 renewal-licensee has been unable to persuade the Commission that = it is=20 presently in the public interest to grant a three-year renewal. = That the=20 Examiner failed to grasp this fact is reflected throughout his = report and=20 noticeably in his statement that

[*546] "the = evidentiary=20 hearing * * * presented [Appellants] ample and sufficient = opportunity to=20 come forward and sustain their serious allegations that they had = made=20 against the applicant. They have woefully failed to do so * * *."=20

Lamar Life Broadcasting Co., 14 F.C.C.2d 495, 549 = (1967)=20 (emphasis added).

Since the Commission itself had = previously=20 found that some of these "serious allegations" were sufficient to = withhold=20 the grant of the traditional three-year license, the Examiner's = approach,=20 and its subsequent adoption by the Commission, signifies an = attitude=20 considerably at odds with the Commission's earlier action in = refusing a=20 three-year license. The Examiner seems to have regarded Appellants = as=20 "plaintiffs" and the licensee as "defendant," with burdens of = proof=20 allocated accordingly. This tack, though possibly fostered by the=20 Commission's own action, n5 was a grave misreading of our holding = on this=20 question. n6 We did not intend that intervenors representing a = public=20 interest be treated as interlopers. Rather, if analogues can be = useful, a=20 "Public Intervenor" who is seeking no license or private right is, = in this=20 context, more nearly like a complaining witness who presents = evidence to=20 police or a prosecutor whose duty it is to conduct an affirmative = and=20 objective investigation of all the facts and to pursue his = prosecutorial=20 or regulatory function if there is probable cause to believe a = violation=20 has occurred.

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n5 In setting the = hearing=20 following our remand, the Commission, on May 26, 1966, designated = the=20 hearing issues to be:

(a) Whether station WLBT has = afforded=20 reasonable opportunity for the discussion of conflicting views on = issues=20 of public importance;

(b) Whether station WLBT has = afforded=20 reasonable opportunity for the use of its broadcasting facilities = by the=20 significant groups comprising the community of its service area;=20

(c) Whether station WLBT has acted in good faith = with=20 respect to the presentation of programs dealing with the issue of = racial=20 discrimination, and, particularly, whether it has misrepresented = to the=20 public or the Commission with respect to the presentation of such=20 programming.

(d) Whether in light of all the = evidence a=20 grant of the application for renewal of license of Station WLBT = would=20 serve the public interest, convenience, or necessity. =

In the=20 designation Order, the Commission explained:

10. = Pursuant to=20 the rule announced in D & E Broadcasting Company, 1 FCC 2d 78 = (1965),=20 and in accordance with the statutory mandate of Section 309 (e), = the=20 burden of proof as to issues (a) and (b) shall be upon the = intervenors,=20 the burden of proof as to issue (c) shall be upon the Broadcast = Bureau,=20 and the burden of proof as to issue (d) shall be upon the = applicant.=20

Lamar Life Broadcasting Co., 3 F.C.C.2d 784 (1966).=20

n6 Prior to the initiation of the evidentiary = hearing we=20 denied Appellants' motion for clarification of our earlier = opinion;=20 however, in a memorandum statement accompanying the denial we = noted:=20

In our view it should not be necessary, and = certainly is not=20 desirable, for this court to supervise the details of conduct of = hearings=20 before the Commission by the device of periodic revision of the = language=20 used in opinions. Only the most extraordinary circumstances would = warrant=20 our intervention by this means; such circumstances do not exist = here=20 inasmuch as, in respect of paragraphs 9 and 10, respectively, of = the=20 Commission's order released May 25, 1966, we assume that (1) the=20 Commission's concept of evidence of past performance which, in its = words,=20 "is not unduly remote in time" is commensurate with what was, in = our=20 words, "a history of programming misconduct of the kind alleged"=20 occasioning our remand, and (2) the Commission's reference to "the = burden=20 of proof" in respect of issues (a), (b), and (c) is intended to = mean only=20 the burden of going forward with evidence in the first instance.=20

Church of Christ, No. 19,409 (D.C. Cir., Filed = November 18,=20 1966) (emphasis added).

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This was = all the=20 more true here because prior to the efforts of the actively = participating=20 intervenors, the Commission itself had long since found the = licensee=20 [*547] wanting. n7 It was not the correct role of the Examiner or = the=20 Commission to sit back and simply provide a forum for the = intervenors; the=20 Commission's duties did not end by allowing Appellants to = intervene; its=20 duties began at that stage.

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n7 = In=20 connection with WLBT's 1959 renewal applications, the Commission = had found=20 specific failures to comply with the demands of the Fairness = Doctrine, but=20 did not withhold a renewal on the grounds that they were "isolated = violations." See Lamar Life Broadcasting Co., supra note 3 at = 1145.=20

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A curious=20 neutrality-in-favor-of-the-licensee seems to have guided the = Examiner in=20 his conduct of the evidentiary hearing. An example of this is = found in his=20 reaction to evidence of a monitoring study conducted by Appellants = for=20 about one week in 1964 and which was the subject of two days of = testimony=20 at the hearing. The Examiner's conclusion was that the play-back = had=20 "virtually no meaning for the simple reason that it was not * * * = fair and=20 equitable. [It] is worthless and therefore completely discounted = for any=20 consideration by the hearing examiner." 14 F.C.C.2d at 543 = (emphasis=20 added). In context or out, this reaction is difficult to = comprehend. n8=20 The Commission has often complained -- and no doubt justifiably so = -- that=20 it cannot monitor licensees in any meaningful way; here a 7-day=20 monitoring, made at no public expense, was presented by a public = interest=20 intervenor and was dismissed as "worthless" by the Commission.=20

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n8 The following excerpts from = the=20 hearing transcript illustrate the licensee's success in placing an = unrealistic burden on the Intervenors. Mrs. Elizabeth Ewing, who = prepared=20 the monitoring study exhibits on behalf of Appellants, was the = witness:=20

Q. Could you tell from the tape whether the news of, = well=20 say, Dick Sanders, whether he was reading from United Press = International=20 wirecopy? Do you know what that is?

A. Yes. =

Q.=20 Could you tell whether he was reading from UPI wirecopy or from a=20 transcript that he, himself, had prepared?

A. No.=20

Q. Did you make any identifications where the source = of=20 information was coming from?

A. No.

* = * *=20

Q. Have you ever lived in Jackson, Mississippi?=20

A. No, I have not.

Q. Did you receive = any=20 instructions as to what would be of interest to the people in = Jackson,=20 Mississippi?

A. No.

Q. Did you study = any=20 documents or books or papers to find out what would be of interest = to the=20 people in Jackson, Mississippi?

A. No. =

Q. Did=20 you read Jackson newspapers during this period in March 1964?=20

A. No.

* * *

Q. Do you = know=20 whether or not Dick Sanders was quoting a press release from the=20 Department of Justice?

A. No.

Q. Do = you know=20 whether he was quoting directly from the wire service? =

A.=20 No, I don't.

Joint Appendix 172, 183-184, 187 = [hereinafter=20 J.A.].

This witness had already produced evidence of = the=20 contents of the monitored broadcasts, yet she was pursued to = ascertain the=20 source of these programs -- the type of information particularly = in the=20 control and at the disposal of a broadcast licensee. In evaluating = Mrs.=20 Ewing's testimony, the Examiner pursued the same tack, = discrediting the=20 study and the testimonial evidence to support it without ever = placing on=20 the licensee the affirmative burden of producing evidence to = establish=20 either the true source of the programming materials or, as = compared to=20 that of Mrs. Ewing, its own sensitivity to the needs and interests = of=20 portions of its listening audience.

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Concerning the cutting off of a network program = relied on by=20 Intervenors as showing violations of the Fairness Doctrine the = Examiner=20 found: "There is not one iota of evidence in the record that = supports any=20 such allegation." Yet in the transcript of proceedings we find = testimony=20 identifying the program which was admittedly cut off. The record = shows=20

A. I recognized the Woolworth Counter where the=20 demonstration occurred [*548] here and the picture immediately=20 disappeared. I picked up the telephone and immediately called WLBT = --=20

Q. With whom did you speak?

A. The man = refused=20 to identify himself. I did not identify myself. I said, "Did you = cut that=20 off because that showed those Negroes sitting in at Woolworth's in = Jackson?" The man said, "Yes."

MR. GEORGE: I object. = I may=20 be anticipating but I will object to any statement as to the = reply.=20

PRESIDING EXAMINER: That is correct. We will sustain = that=20 portion of it. You can't quote some undisclosed person. =

The=20 portion of the answer is stricken where he was quoting some = unidentified=20 person which is sheer hearsay. n9

J.A. 720-21 = (emphasis=20 added).

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n9 Conceivably a = licensee might=20 be justified, in some circumstances, to decline to carry a program = it=20 regarded as inflammatory because of current tensions; if placed on = that=20 basis and reasonable exercise of such discretion presumably would = be=20 sustained by the Commission.

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On=20 allegations that at least two of the licensee's commentators used=20 disparaging terms with reference to Negroes there was testimony of = listeners who said they heard these episodes; in his initial = decision the=20 Examiner noted that "at least three of the [Appellants'] = witnesses" so=20 testified. Nevertheless, the Examiner chose to belittle this = evidence:=20

Because of the conflicting testimony respecting = Ellis [one=20 of WLBT's commentators], there is no finding made as whether he = did or did=20 not use the word "nigger" or "negra". But the evidence is = undisputed that=20 Alon Bee did use the expressions "negra" or "nigger" at some = indefinite=20 time in the past while broadcasting over station WLBT. A glaring = weakness=20 of the intervenors' evidence here is that, as in many of their=20 allegations, they did not pinpoint specific times when certain = events=20 supposedly occurred, thereby unfairly depriving the applicant of = an=20 opportunity properly to rebut such allegations.

14 = F.C.C.2d=20 at 510 (emphasis added). It is not our function to determine = whether this=20 would have supported a finding that the licensee had violated the = Fairness=20 Doctrine but the Examiner's erroneous concept of the burden of = proof shows=20 a failure to grasp the distinction between "allegations" and = testimonial=20 evidence, and prevented the development of a satisfactory record.=20

The infinite potential of broadcasting to influence = American=20 life renders somewhat irrelevant the semantics of whether = broadcasting is=20 or is not to be described as a public utility. By whatever name or = classification, broadcasters are temporary permittees -- = fiduciaries -- of=20 a great public resource and they must meet the highest standards = which are=20 embraced in the public interest concept. The Fairness Doctrine = plays a=20 very large role in assuring that the public resource granted to = licensees=20 at no cost will be used in the public interest. In short, we do = not=20 determine how the factors we have discussed should have been = weighed by=20 the Commission but only that they had some probative value and = should have=20 been considered. To borrow a phrase from the Examiner, his = response=20 manifests a "glaring weakness" in his grasp of the function and = purpose of=20 the hearing and the public duties of the Commission. =

We need=20 not continue recitals from the record or examples of similar = situations=20 which shed light on the nature of the hearings; in our view the = entire=20 hearing was permeated by similar treatment of the efforts of the=20 intervenors, and the pervasive impatience -- if not hostility -- = of the=20 Examiner is a constant factor which made fair and impartial = consideration=20 impossible. The Commission and the Examiners have an affirmative = duty to=20 assist in the development of a meaningful record which can serve = as the=20 basis for the evaluation of the licensee's performance of his duty = to=20 serve the public interest. The Public [*549] Intervenors, who were = performing a public service under a mandate of this court, were = entitled=20 to a more hospitable reception in the performance of that = function. As we=20 view the record the Examiner tended to impede the exploration of = the very=20 issues which we would reasonably expect the Commission itself = would have=20 initiated; an ally was regarded as an opponent.

The=20 Commission, except as modified on some minor points, adopted the=20 Examiner's Initial Decision: "We are in agreement with the = examiner's=20 conclusions that the intervenors failed to corroborate or = substantiate=20 virtually all of their allegations upon which the hearing was = predicated *=20 * *." Lamar Life Broadcasting Co., 14 F.C.C.2d 431, 433 (1968). In = a=20 footnote to this resolution, the Commission notes: =

8. Since=20 our decision is based on the preponderance of evidence adduced at = the=20 hearing, we are of the opinion that the intervenors' argument that = they=20 only had the burden of going forward with evidence in the first = instance=20 on hearing issues (a) and (b), that the Broadcast Bureau only had = the=20 burden of going forward on issue (c), and that the station had the = actual=20 burden of proof on those issues, is mooted.

In this = respect,=20 we think it important to set forth what the trial Examiner = understood the=20 burdens of proof to be, for his understanding on this point = profoundly=20 affected his crediting or dismissing what was in essence = testimonial=20 evidence although he constantly characterized the evidence as=20 "allegations":

MR. MOORE [Counsel for appellants]: * = * * I=20 just want to state for the record that as I understand the burden = of=20 proof, the burden of proof on all issues is on the station and the = only=20 burden on the applicant [sic; should be intervenors] and the = Bureau is the=20 burden of going forward.

That is my understanding of = the=20 interpretation which has been placed on the Commission's order by = the=20 Court of Appeals.

PRESIDING EXAMINER: No, that is = not my=20 interpretation. My interpretation is, by the Commission action, is = that=20 the burden of proof is primarily upon the intervenors on issues A = and B,=20 on the Broadcast Bureau on C and on the applicant on D, and you = can't by=20 waving the magic wand, shift the burden of proof to this applicant = or to=20 the Bureau.

J.A. 304-305 (emphasis added). That this = concept=20 of the allocation of the burden of proof permeated the = Commission's final=20 resolution can be seen in its constant references to the Public=20 Intervenor's failure to "prove" its "charges". As the Commission = noted in=20 closing: "We only conclude that the intervenors have failed to = prove their=20 charges and that the preponderance of the evidence before us = establishes=20 that WLBT has afforded reasonable opportunity for the use of its=20 facilities by the significant community groups comprising its = service=20 area." 14 F.C.C.2d at 437-438. Once again we see the pervasiveness = of the=20 original error in confusing mere "allegations" and testimonial = evidence --=20 evidence which if not contradicted by the licensee's evidence, or = on its=20 face incredible, was entitled to carry the day in terms of = establishing=20 the point to which it was directed.

The Examiner and = the=20 Commission appear to have overlooked the 1965 Memorandum Opinion = and Order=20 of the Commission which contains much to the contrary to its = present=20 position; n10 moreover, the practical effect of the Commission's = action=20 was to place on the Public Intervenors the entire burden of = showing that=20 the licensee was not qualified to be granted a renewal. The = Examiner and=20 the Commission exhibited at best a reluctant tolerance of this = court's=20 mandate n11 and at worst a profound hostility to the participation = of=20 [*550] the Public Intervenors and their efforts. n12 =

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n10 See note 4 supra.

n11 See note 6 = supra.=20

n12 Two members of the Commission seemed to read the = record=20 much as we read it now. In a further statement filed by = Commissioners Cox=20 and Johnson in response to the majority's "further statement" in = response=20 to the original dissent, the dissenting Commissioners noted:=20

We remain perplexed by our colleagues' = interpretation of the=20 burden of proof issue, notwithstanding their attempt to further = elucidate=20 this problem in the further statement. As we noted in our = dissenting=20 opinion, the court of appeals clearly expressed its expectation = that the=20 Commission would resolve the problem by placing upon petitioners = [Public=20 Interest Intervenors] "only the burden of going forward with = evidence in=20 the first instance." By the strictures of the Communications Act = of 1934,=20 it is the licensee who is obligated to prove that renewal of his = license=20 is in the public interest, convenience, or necessity. =

Our=20 colleagues maintain that, "neither the burden of going forward = with the=20 evidence nor the burden of nonpersuasion [is] * * * discharged by = the=20 party on whom it may fall by the simple making of charges and/or=20 allegations." Needless to say, we have not suggested that "simple = charges=20 and/or allegations" are adequate. However, under their = construction, it=20 almost seems that presumptions favoring the licensee arise as to = each of=20 the issues contained in the pleadings; and, thus, as to the = ultimate issue=20 of public interest. This rule of procedure is plainly unjust and = flatly=20 contradictory of the court's memorandum respecting the burden of = proof=20 questions, a fact noted in our dissent and not disputed by the = further=20 statement.

Lamar Life Broadcasting Co., 14 F.C.C.2d = 431, 487=20 (1968).

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The record now before us = leaves=20 us with a profound concern over the entire handling of this case = following=20 the remand to the Commission. The impatience with the Public = Intervenors,=20 the hostility toward their efforts to satisfy a surprisingly = strict=20 standard of proof, plain errors in rulings and findings lead us, = albeit=20 reluctantly, to the conclusion that it will serve no useful = purpose to ask=20 the Commission to reconsider the Examiner's actions and its own = Decision=20 and Order under a correct allocation of the burden of proof. The=20 administrative conduct reflected in this record is beyond repair.=20

The Commission itself, with more specific = documentation of=20 the licensee's shortcomings than it had in 1965 has now found = virtues in=20 the licensee which it was unable to perceive in 1965 and now finds = the=20 grant of a full three-year license to be in the public interest.=20

We are compelled to hold, on the whole record, that = the=20 Commission's conclusion is not supported by substantial evidence. = For this=20 reason the grant of a license must be vacated forthwith and the = Commission=20 is directed to invite applications to be filed for the license. We = do=20 refrain, however, from holding that the licensee be declared = disqualified=20 from filing a new application; the conduct of the hearing was not=20 primarily the licensee's responsibility, although as the applicant = it had=20 the burden of proof. Moreover, the Commission necessarily did not = address=20 itself to the precise question of WLBT's qualifications to be an = applicant=20 in the new proceeding now ordered, and we hesitate to pass on this = subject=20 not considered by the Commission.

The Commission is = directed=20 to consider a plan for interim operation pending completion of its = hearings; if it finds it in the public interest to permit the = present=20 licensee to carry on interim operations that alternative is = available. The=20 Commission is free to consider whether net earnings of the = licensee should=20 be impounded by the Commission pending final disposition of this = license=20 application. n13

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n13 We = are=20 aware that in the ordinary course the license granted by the = Commission=20 would expire on June 1, 1970.

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Reversed=20 and remanded for further proceedings in accordance with this = opinion.=20

[*551] On Petitions for Rehearing or Clarification = and=20 Suggestions for Rehearing en banc ORDER

PER CURIAM.=20

On consideration of the petitions filed herein by = counsel=20 for the Federal Communications Commission and intervenor, Lamar = Life=20 Broadcasting Company, for rehearing, for clarification of the = Court's=20 opinion and of the suggestions for rehearing en banc, it is=20

Ordered by the Court, insofar as the aforesaid = petitions are=20 directed to the assigned division of this Court, that said = petitions be=20 denied, and it is

Further ordered by the Court en = banc,=20 there not being a majority of the judges of this circuit in favor = of=20 having this case reheard by the Court sitting en banc that the = suggestions=20 for en banc hearing are denied.

STATEMENT OF JUDGES = McGOWAN=20 AND TAMM ACCOMPANYING VOTE TO DENY THE PETITION OF THE FEDERAL=20 COMMUNICATIONS COMMISSION FOR REHEARING BY THE PANEL OR EN BANC.=20

The essential conclusion of the division which heard = this=20 case was that the record compiled upon remand was, because of the=20 misconceptions of the Trial Examiner, in no state to admit of an = informed=20 and reliable finding as to whether the renewal sought was in the = public=20 interest. Since the licensee has not in over six years established = its=20 right to continue to be entrusted with this valuable public asset, = the=20 opinion understandably expressed some impatience with this state = of=20 affairs, although it recognized that the ineptitude of the = Commission was=20 as much, if not more, to blame for this scandalous delay than was = the=20 licensee. For this reason, the division was not disposed to = declare the=20 licensee ineligible to seek new authority to use the channel. It = did think=20 that the licensee should compete for that authority, on even terms = as=20 nearly as may be, with any other applicant.

The = Commission=20 professes concern that the court has improperly arrogated to = itself a=20 decision which assertedly is committed only to the Commission, = namely, the=20 denial of the license renewal application because the licensee is = not=20 qualified under any circumstances, in terms of the public = interest, to=20 have the channel. Had that been the division's purpose, it would = not have=20 contemplated that the licensee could be one of the competing = applicants.=20 What was held was that the proceedings on remand had been = hopelessly=20 bungled and that the public interest was best served by taking = note of the=20 early expiration date * and getting on with a new hearing in which = the=20 Commission can decide who is best qualified to have this channel. = The=20 Commission knows full well how to do this under its existing = powers,=20 without interruption of the present service if that is deemed = important=20 and on such terms as it thinks fit.

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*=20 The license grant under review terminates June 1, 1970, and = proceedings to=20 determine who should be the licensee for the term beginning on = that date=20 would have to get under way in ample time before that. =

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The Commission points to the provision of 47 U.S.C. = @ 307(d)=20 to the effect that, pending final disposition of a renewal = application,=20 the Commission "shall continue such license in effect." It says = that this=20 means that the licensee seeking renewal must be regarded as having = continuing authority until its application has been finally = disposed of=20 adversely to it -- and this last, so it is said, only the = Commission can=20 do. It is doubtful if Congress intended that a licensee should be = able to=20 remain in possession indefinitely merely because the Commission = proves=20 unable or unwilling to conduct proceedings which will survive = judicial=20 scrutiny. A licensee holding over on any such basis is, at best, a = licensee in name only, and it is presumably in such light that the = licensee here involved will take its place among competing = applicants.=20