Document ID: A:\GBOSTON.TXT GREATER BOSTON TELEVISION CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WHDH, Inc., a Massachusetts Corporation, Intervenor. WHDH, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Greater Boston Television Corporation, a Massachusetts Corporation, Intervenor. CHARLES RIVER CIVIC TELEVISION, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WHDH, Inc., Boston Broadcasters Inc., Intervenors. WHDH, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Boston Broadcasters, Inc., Intervenor. GREATER BOSTON TV CO., Inc., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WHDH, Inc., Boston Broadcasters Inc., Intervenors Nos. 17785, 17788, 23154, 23159, 23172 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 444 F.2d 841; 1 Media L. Rep. 2003 May 25, 1970, Argued November 13, 1970, Decided SUBSEQUENT HISTORY: As amended December 31, 1970. Petitions for Rehearing Denied and Opin DISPOSITION: Affirmed. JUDGES: Tamm, Leventhal and MacKinnon, Circuit Judges. OPINIONBY: LEVENTHAL OPINION: [*844] LEVENTHAL, Circuit Judge: This appeal marks the culmination of a sixteen year struggle to determine the licensee The Federal Communications Commission previously made a limited award to WHDH, Inc., an hearing, approved the application of Boston Broadcasters, Inc. (BBI), and denied the mutu esult was adhered to on reconsideration by the Commission, although the petition for rehea I. COMMISSION PROCEEDINGS A. Historical Background The initial proceeding to select a licensee to operate on Channel 5 in Boston began in owned subsidiary of the corporate publisher of the Boston Herald-Traveler newspaper. 22 F ward might be subject to an infirmity by virtue of improper ex parte contacts with the Cha .D.C. 226, 261 F.2d 55 (1958), cert. denied, 366 U.S. 918, 81 S. Ct. 1094, 6 L. Ed. 2d 241 At the supplemental hearing before a Special Hearing Examiner, Honorable Horace Stern, Inc., had arranged two luncheons with Mr. George C. McConnaughey, then Chairman of the FC of 1956 (after the initial hearing examiner's decision favoring another applicant, but bef ghey. The matters in question proved to be the Harris-Beamer bills, which would have limi hey's testimony before Congress. At the second luncheon Mr. Choate attempted to hand Mr. t discussion, and later called public attention to the matter in testimony before the Hous The Special Hearing Examiner concluded that WHDH's construction permit should be allowe as no reason for the Chairman or any other member of the Commission to disqualify himself btle, attempt to influence the Commission, and condemned it as an effort that "does violen eal, and ordered the status quo maintained. The Commission's finding and report concluded ifying had been such as to reflect adversely upon it in the comparison of applicants. The porary authorization for WHDH to continue broadcasting on Channel 5; and reopening the ent . Massachusetts Bay Telecasters, Inc. v. F.C.C., 111 U.S.App.D.C. 144, 295 F.2d 131, cert In October, 1961, the Commission held new hearings, this time among three of the four o approaches to the Commission Chairman. In the same order it made a grant to WHDH of an o ermissible and normally provided, because it believed this in the public interest due to " al step of assuring that comparative consideration would be given to competing application lications filed during that period by BBI (intervenor before this court) and Charles River light of significant differences among applicants as to (a) background and experience bea . Meanwhile, the grant of the 4-month license had been appealed to this court, both by WH while this appeal was pending, Mr. Choate died. We remanded again to determine what [*8 mission to combine the renewal proceedings with the proceedings, on remand, for reconsider ht of the absence of Mr. Choate. Greater Boston Television Corp. v. F.C.C., 118 U.S.App.D B. The Current Comparative Proceeding The consolidated comparative proceeding authorized by this court began in May, 1964, an 1. Hearing Examiner's Decision On August 10, 1966, Hearing Examiner Herbert Sharfman issued an exhaustive Initial Deci ight have been able to stop him were even aware, so far as the record shows, of the intent In the bulk of his conclusions, related to a comparison of the applicants, the Hearing , 1965): -- past performance; diversity of ownership; integration of ownership and managem erating record of WHDH under the temporary authorizations of the preceding nine years. The Examiner conceded that the position of WHDH was weak in regard to the integration c ically active residents, offering strong claims on the score of area familiarity. The Exa a new applicant enjoys a "literary advantage" over an existing operator. He further noted a renewing station. Yet the Examiner concluded that it would be a sterile exercise to dec good performance is a more reliable index of future operations in the public interest tha operating record was considered favorable on the whole, notwithstanding its unwillingness broadcast facilities would probably have ruled out the WHDH application if this were an al 7] Commission's long-standing policy in renewal proceedings, as established in Hearst Ra - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The fourth applicant, Greater Boston Television Corp. (II), was disqualified for fai ure its proposed antenna site. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 2. Commis On January 22, 1969, the Commission reversed the Hearing Examiner's decision, and enter Past Performance of WHDH: The Commission's Decision stated that the principles of the 1 given an affirmative preference only if it were outside the bounds of average performance ded that it was only within the bounds of average performance, and "does not demonstrate u Diversification of Media of Mass Communications: WHDH's ownership by the Herald-Travele mass communications in Boston was highlighted by the incident wherein the Herald-Traveler tation. It was brought out at the hearing that such a news broadcast would have impaired The Commission further referred to the contention of WHDH that since it had never edito reasonable broadcast time to controversial programs, and the failure to editorialize, if ncluded by awarding a substantial preference to both BBI and Charles River as against WHDH Integration of Ownership with Management: The Commission affirmed the Examiner's conclu tially greater degree than WHDH, whose integration is small. It restated its view that th programming to serve these needs. As between Charles River and BBI, the Commission found that BBI rated a significant pre y one Charles River participating owner, whose experience was limited to radio). Proposed Program Service: The Commission agreed that both BBI and Charles River propose ublic service." 16 F.C.C.2d at 15. The Commission assigned a slight demerit to BBI because of its insufficiently supported ngs of the Hearing Examiner that this was only a "brave generality" which generated the su The Commission assessed a slight demerit against Charles River in view of the fact that "Although Charles River proposes to editorialize, it is manifest that there are limitation vision station operations." 16 F.C.C.2d at 17. n2 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 The Commission was aware that applicant would be fully taxable, but took into accoun empt organizations. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The slight demerits assessed against BBI and Charles River on proposed program service Other Factors: The Commission assessed a demerit against WHDH because of a failure to o eath was followed by the accession of Akerson. n3 However, since there was no attempt at m ication of WHDH. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 The Commission approved the Hearing Examiner's conclusion that this was a transfer o ual control." 16 F.C.C.2d at 17. However, in view of the lack of Commission precedent the (as refined on reconsideration) being that there was a duty to obtain the approval of the etermination whether Commission approval is required. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Commission's Vote: The Commission voted to grant the application of BBI. Its Decisi Commissioner Johnson concurred, with a statement indicating his strong opposition to the a television station that is independently and locally owned. "I feel no passion," he rema f matters that arose before he became a member of the FCC, -- "In this instance, however, issented, voting to grant the application of WHDH, and abstaining from any choice as betwe 3. The Commission's Action on Reconsideration Reaction to the Commission's decision was swift. One distinguished commentator charact be a Commission policy, reversing Hearst, that placed all license holders on equal footing e petitions of all parties for a rehearing. 17 F.C.C.2d 856. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 Jaffe, WHDH: The FCC and Broadcasting License Renewals, 83 Harv.L.Rev. 1693, 1700 (1 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - While the Commission granted in part the petition for reconsideration by WHDH essential o exceptions by the favored applicant (BBI), which urged that the FCC state explicitly tha al of license. Instead the FCC recited that WHDH's application was treated as one for the he public interest, that no change in that ruling was required as a result of Choate's dea The Commission added a closing paragraph to clarify that this was not an ordinary renew The FCC noted that WHDH's operation, although conducted some 12 years, has been for the mo sion's concern with the "inroads made by WHDH upon the rules governing fair and orderly ad ding held thereon. 4. Subsequent Developments While the Commission's decision was on appeal to this court, the legislative pressure c aring procedure, wherein the issue of renewal would be determined prior to and to the excl , provided that the renewal issue would be determined first, in a proceeding in which new arative hearings be held. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 S. 2004, 91st Cong., 1st Sess. (1969) was sponsored by 22 Senators and 18 Representa - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Policy Statement set forth that a licensee with a record of "solid, substantial ser to provide predictability and stability of broadcast operations, yet to retain the compet The Commission expressly stated that its policy statement "is inapplicable, however, to t 430. In such case the license holder cannot obviate the [*850] comparative analysis II. THE ISSUES ON APPEAL A. General Conformance of Agency Disposition to Salient Principles of Rule of Law We have presented at some length and detail the Commission's proceedings and dispositio n appeal satisfies the basic requirements of the Rule of Law, as established by Administra emished by ex parte contacts with agency heads. n6 Our alertness was also prompted in this ution of its approach to the kind of issue presented by this proceeding. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 Jacksonville Broadcasting Corp. v. F. C. C., 121 U.S.App.D.C. 69, 348 F.2d 75, cert. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Approaching this case as we have with full awareness of and responsiveness to the court h enforcement of the requirement of reasonable procedure, with fair notice and opportunity cy's evidentiary fact findings are supported by substantial evidence, n9 and provide ratio observe the demeanor of the witnesses, but also for the reality that agency matters typica retion is secured, not crippled, by the requirements for substantial evidence, findings an th no practical limits on its discretion." Burlington Truck Lines v. United States, 371 U. ive, even as to the evidence on technical and specialized matters, for this enables the co rom or ignore the ascertainable legislative intent. n11 "The deference owed to an expert t 968). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 L. Jaffe, Judicial Control of Administrative Action 589 (1965). n8 Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); Greene v. n9 Consolidated Edison Co. of New York v. N. L. R. B., 305 U.S. 197, 59 S. Ct. 206, 83 n10 City of Chicago v. F. P. C., 128 U.S.App.D.C. 107, 115, 385 F.2d 629, 637 (1967), c n11 Los Angeles v. F. M. C., 128 U.S.App.D.C. 156, 159, 385 F.2d 678, 681 (1967). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*851] Assuming consistency with law and the legislative mandate, the agency has lati ncy has given reasoned consideration to all the material facts and issues. n12 This calls o assure that the agency's policies effectuate general standards, applied without unreason e ultimate conclusion must be based on a composite consideration of the findings as to eac - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S. Ct. 1344, 20 L. Ed. 2d 312 t. denied, 384 U.S. 941, 86 S. Ct. 1462, 16 L. Ed. 2d 540 (1966). n13 WAIT Radio v. F. C. C., 135 U.S.App.D.C. 317, 320, 418 F.2d 1153, 1156 (1969); City n14 Johnston Broadcasting Co. v. F. C. C., 85 U.S.App.D.C. 40, 46, 175 F.2d 351, 357 (1 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Its supervisory function calls on the court to intervene not merely in case of procedur , that the agency has not really taken a "hard look" at the salient problems, n15 and has y's action even though the court would on its own account have made different findings or f satisfied that the agency has taken a hard look at the issues with the use of reasons an must not be left to guess as to the agency's findings or reasons. n18 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 WAIT Radio v. F. C. C., 135 U.S.App.D.C. 317, 418 F.2d 1153 (1969); Pikes Peak Broa n16 Braniff Airways v. C. A. B., 126 U.S.App.D.C. 399, 411-414. 379 F.2d 453, 465-468 ( App.D.C. 244, 248, 418 F.2d 460, 464 (1969). n17 Colorado Interstate Gas Co. v. F. P. C., 324 U.S. 581, 595, 65 S. Ct. 829, 89 L. Ed 671, cert. denied, 395 U.S. 979, 89 S. Ct. 2134, 23 L. Ed. 2d 767 (1969). n18 Radio Station KFH Co. v. F. C. C., 101 U.S.App.D.C. 164, 247 F.2d 570 (1957). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The process thus combines judicial supervision with a salutary principle of judicial re nstrumentalities of justice." n21 The court is in a real sense part of the total administr sistence on the need for conjunction of articulated standards and reflective findings, in blic interest by requiring the agency to focus on the values served by its decision, n23 a n the process as well as the judgments of its decision-makers. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n19 Braniff Airways v. C. A. B., 126 U.S.App.D.C. 399, 379 F.2d 453 (1967); WAIT Radio n20 Niagara Mohawk Power Corp. v. F. P. C., 126 U.S.App.D.C. 376, 383 n. 24, 379 F.2d 1 n21 United States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 85 L. Ed. 1429 (1941). n22 City of Chicago v. F. P. C., 128 U.S.App.D.C. 107, 116, 122, 385 F.2d 629, 638, 644 n23 Joseph v. F. C. C., 131 U.S.App.D.C. 207, 211, 404 F.2d 207, 211 (1968). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - There was once a day when a court upheld the "sensible judgments" of a board, say of ta , partly for historic reasons. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n24 Chicago B. & Q. Ry. v. Babcock, 204 U.S. 585, 598, 27 S. Ct. 326, 329, 51 L. Ed. 63 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Generally, however, the applicable doctrine that has evolved with the enormous growth a ng is under great tension when a certificating agency is required to choose between two or o bidding, or even chance, as the most feasible guarantor of neutral and acceptable select - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n25 Some instances of a principled use of luck, with ground rules known in advance, are , 24 L. Ed. 2d 163 (1969). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Judicial vigilance to enforce the Rule of Law in the administrative process is particul st may change, n26 either with or without a change in circumstances. But an agency changi glosses over or swerves from prior precedents without discussion it may cross the line fr - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n26 City of Chicago v. F. P. C., 128 U.S.App.D.C. 107, 115, 385 F.2d 629, 637 (1967), c , 350 U.S. 1007, 76 S. Ct. 650, 100 L. Ed. 869 (1956). n27 New Castle County Airport Comm'n. v. C. A. B., 125 U.S.App.D.C. 268, 270, 371 F.2d n28 Marine Space Enclosures, Inc. v. F. M. C., 137 U.S.App.D.C. 9, 420 F.2d 577, 585 (1 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The net result of our study and reflection in this case is our conclusion that the reco areas, and to set forth with clarity grounds of reasoned decision which we think permissi It merits interjection that the shape of the agency's disposition was aided in no small applicants in regard to each of the pertinent criteria. It does not decry the significanc cision was useful although the conclusion was reversed. The Examiner's decision is part of the record, and the record must be considered as a w reflect attentive consideration to the Examiner's decision. n30 Yet in the last analysis ch result it is the agency's choice that governs. n31 Here, the Commission accepted the Ex but also its reasons for taking a different course. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n29 Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 ( n30 American Fed. of Television & Radio Artists v. N. L. R. B., 129 U.S.App.D.C. 399, 4 n31 Oil, Chemical & Atomic Workers, etc. v. N. L. R. B., 124 U.S.App.D.C. 113, 116, 362 308 (1966). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The court's conclusion as to the general scope and character of the agency's findings a B. Issues Posed by Appellant WHDH, Inc. 1. Contention that WHDH Was Entitled to Same Consideration As Renewal Licensee WHDH's central contention rests on its 4-month operating license, duly granted by the C at extent. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n32 The Examiner put it that WHDH recognized that "it would be unlikely to prevail unde - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - WHDH makes no serious contention that it could protest the grant to intervenor BBI if t it is undeniable that a strong preference would be available to BBI in view of the "integ ations for new facilities, and are not properly available in a renewal proceeding. It was renewal criteria is the core of the WHDH appeal. [*854] The application of the criteria in the 1965 Policy Statement is said to impose cense stability. There is no doubt that the Commission applied to this proceeding, although it is a rene for renewal on the basis of a sound or "favorable" record in its license operation, and t If the case were before us solely on the Decision adopted by the Commission on January on. While the "forfeiture" terminology invoked by WHDH may be more of a conclusion than a U.S. 316, 322 n.6, 324-325, 81 S. Ct. 1611, 6 L. Ed. 2d 869 (1961), there would be a quest whether administrative discretion to deny renewal expectancies, which must exist under any ed on renewal application by a newspaper affiliate, including the possibility that TV proc traordinary performance, and on the other hand court disaster, in the event of comparison, Fortunately, the present posture of this case permits us to refer to these problems as e category because of the past history of WHDH. n33 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n33 The Commission said (par. 40): In closing, we think it should be made clear that our decision herein differs in signif lar license periods of 3 years. Thus, although WHDH has operated station WHDH-TV for near en under challenge. Not until late September 1962 did WHDH receive a license to operate i on the rules governing fair and orderly adjudication * * *." Again, unlike the usual situa be accepted within a specified 2-month period. Such applications were filed, accepted, an t for renewal of broadcast license. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - This interpretation of its action is underscored by the 1970 Policy Statement on Compar F.C.C. 1149 (1951), on which WHDH places substantial [*855] reliance. The Commission's If the applicant for renewal of license shows in a hearing with a competing applicant t e station has not otherwise been characterized by serious deficiencies, he will be preferr done so. Since the basic purpose of the act -- substantial service to the public -- is be - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n34 22 F.C.C.2d 424 (1970). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The permissibility of the general policy continued by this Statement is not in issue si The Commission's 1970 Policy Statement carries a proviso, set forth in the footnote, n3 eated as a new applicant." In such cases the applicant's record will be examined, but subj - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n35 "The policy statement is inapplicable, however, to those unusual cases, generally i e or unfavorable, is of course pertinent and should be examined, the WBAL policy, as here the 'Policy Statement on Comparative Broadcast Hearings,' 1 F.C.C.2d 393 (1965)." 22 F.C.C - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We think the distinction drawn by the Commission, in both this case and the 1970 statem s application to the case before us. We have re-examined the Commission docket which was before us in 1963, when we remanded , who was the principal officer of WHDH, had "demonstrated an attempted pattern of influen - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n36 See 29 F.C.C. 204, at 211-21: 5. However, we do conclude that Choate demonstrated an attempted pattern of influence. appear to be a full disclosure of his motives. While the Herald-Traveler had a legitimate s its contacts with the Commission would be conducted through its professional representat y Choate felt it necessary to seek a personal relationship with McConnaughey, and we concl presenting responsible interests who merited favorable consideration of their application 6. This view of Choate's motive in arranging the first luncheon is buttressed by the f y had a right to express its views to the Commission on communications legislation concern subject of the legislation was an important issue in the pending adjudicatory proceeding, felt it necessary to present such a brief to the Commission at that time, he must be pres have been in such form as would afford his opponents an opportunity to make such reply as himself, rather than the draftsman of the proposed legislation or some other experienced c enced by the brief is irrelevant to the fact that Choate attempted, in effect to influence 7. The very attempt to establish such a pattern of influence does violence to the inte rocesses, and one of the remedial measures available is its discretion in the voiding of a n this instance by exercising our discretion to void the grant to WHDH. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Thus the C ot such as to render the construction permit to WHDH either void or voidable. Justice Ste "did not make any culpable attempt to influence his vote in the Channel 5 proceedings." N ated that social relations with public officials are not taboo, for they are not required mpt on the part of Choate to present the merits of the Herald's application or its organiz The Commission took a different view. The matter is important enough that we have set efer to his application, his purpose was not to size up the Chairman as much as to let the ation of their application." The fabric of Administrative Law, stiffened with Justice Stern's own eloquence in anoth by factors not a part of the hearing record. WKAT, Inc. v. F.C.C., 111 U.S.App.D.C. 253, onduct, that issue, and the assessment of the seriousness of the misconduct, involves the orts to keep its processes free of taint. The Commission was within the range of its disc as within the range of sound discretion when it decided to take remedial measures because There is no chart that can forecast the flow and pace of sound administrative discretio often long after the crimes. Discretion is particularly broad when an agency is concerne .C. 228, 109 F.2d 665 (1939). The burden of establishing a claim of illegality is a heavy The Commission stayed within the range of sound discretion when it adopted, as successi the grant given to WHDH as the better of the original applicants to a mere 4-month operati While the precise nature of the forthcoming comparative evaluation was not spelled out If anything turned on this we would have to recognize that WHDH was not expressly infor ments of renewal. But this did not affect the range of proof which any party might tender hat the policy statement properly governed the nature and scope of evidence contemplated f ssible on the basis of program offering, integration, diversification, past performance an fullest opportunity to display their advantages. It is certainly not uncommon for a cont rged with appraisal and judgment. There being no impediment in the content or shape of the record due to lack of fair not ll applicants, without any special advantage to WHDH by virtue of its operation under lawf been given temporary authority, either without a hearing at all because of [*858] emer - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n37 Algonquin Gas Transmission Co. v. F.P.C., 201 F.2d 334, 338 (1st Cir. 1953); Pennsy - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The complaint of WHDH must be appraised in the light of the courses available to the Co ccount to such extent as would in effect impose an absolute disqualification; this it did WHDH in effect suggests the other extreme -- a brushing aside of the entire matter on t no reason for deterrence could apply to the unimplicated officers presently managing the iety if all that is involved is a calculated risk as to his own position (which would be e nd associates who had invested in the enterprise. In between these extremes are possibilities like a comparative hearing with a demerit a till make a grant to WHDH, a customary 3-year grant was not in the public interest. The Commission's action in exposing WHDH to another public hearing with new applicants, this court's remand, to take account of Choate's death, the Commission set a course that wherein a demerit would be inserted into the comparison with new applicants, preferable bo renewal applicant. In the ordinary case such expectancies are provided in order to promo position does not fairly characterize the situation of a licensee which, by virtue of its e Hearing Examiner and the Commission (as refined on reconsideration), and we think it wit - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n38 When an applicant is required to bear a demerit assigned for non-comparative reason uctive. As to the final comparative hearing the blend of deterrence and public interest i - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The determination that in certain cases a renewal application must be conducted on the mmission may be more to blame than the licensee for the state of affairs precipitating tha t may be fairly invoked without undercutting whatever expectancies may attach in general t - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n39 Cf. Office of Communication of United Church of Christ v. F.C.C., 138 U.S.App.D.C. o deny FCC petition for rehearing en banc. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Commission's action in pitting WHDH against its rivals for fresh comparative consid some other kind of temporary operating authority reflected practical, procedural consider may have thought the 4-month license would be preferable as serving to finalize the proce onventional applicant for renewal, and that is the core of its position in this court. The Commission did not try, as WHDH suggests, to erase the operating record and experie to be able to invoke a past record as a reason for rejecting the promise of better public se. The Examiner was not as impressed as the Commission by the reliability of criteria as -lead" from actual operation, although he disclaimed any right of WHDH to a privileged pos n, without undue advantage acquired from the physical fact of operation under a temporary We think the course adopted by the Commission cannot be considered as arbitrary or unre volution of the law of remedies some things are bound to happen for the 'first time.'" Int or unique fact situations. On the unique facts presented, WHDH was neither a new applicant ully available to the Commission on these facts, that body soundly formulated an intermedi 2. Other Issues The other issues raised by WHDH do not require reversal. It was rated inferior to its a. Diversification of Controls of Media of Mass Communications The Commission assigned a preference to Diversification of Control of the Media of Mass ons. n40 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n40 McClatchy Broadcasting Co. v. F.C.C., 99 U.S.App.D.C. 195, 239 F.2d 15 (1956), cert S. Ct. 55, 96 L. Ed. 628 (1951). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The need for diversity, and the danger of concentration, is not as great in Boston [* tive hearing, to prefer WHDH to its then rival. That the diversity criterion was prominent HDH was confronted with more effective competitors then previously. It is ironical rather We take note, as WHDH requests, of the Red Lion decision, which approves the FCC's poli .C.C., 395 U.S. 367, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1969). We do not agree that Red Lio ng that the importance of avoiding concentration of control in communication is such an im .D.C. 298, 359 F.2d 282 (1966). The Commission need not be confined to the technique of exercising regulatory surveilla to certify as licensees those who would speak out with fresh voice, would most naturally i Further, as the Commission pointed out, its concept of the public interest contemplated each topic. There is a public interest in diversity in policy areas lit by the lantern o WHDH complained it was wrongfully penalized for failure to editorialize. And it can re r underlines the inherent difficulty confronting the affiliate of a newspaper, at least on Some aspects of the Commission's discussion are more bothersome. Thus the Commission d rime Commission. The Examiner disclaimed "competence to assess any blame because the Hera 2d at 92. This observation is not without merit, and we do not see why the Commission shou for even assuming error its impact in overall context was minimal rather than substantial. b. Transfer of De Facto Control The Commission imposed a comparative demerit against WHDH for failure to report changes ansfer of actual control and management of corporate affairs. The Examiner reached the sa The problem is not without difficulty. On the one hand there is need to report transfe 5), cert. denied, 383 U.S. 967, 86 S. Ct. 1272, 16 L. Ed. 2d 308 (1966). As there noted, t n view of the fact that there was no misrepresentation or concealment by WHDH, but only as e instances, represent an improvident use of administrative discretion, in the absence of The difficulty of the issue is sharpened by prickly questions of notice and reasonablen Taking into account the status of WHDH as in effect an applicant for a new license, and h C. Issues Raised by Charles River 1. The Voting Question Charles River presents a subtle, technical contention which is deftly stated but proves staining completely, and Commissioner Robert Lee who voted for WHDH, abstaining from a cho The short answer is that four out of seven Commissioners constitutes a quorum; that the votes three Commissioners cast their vote in favor of an award to BBI. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n41 WIBC, Inc. v. F.C.C., 104 U.S.App.D.C. 126, 259 F.2d 941, cert. denied, 358 U.S. 92 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Even assuming that Commissioner Johnson voted for BBI solely in order to avoid an impas n involves the choice of the feasible, and the selection of the least undesirable alternat a legally effective mandate for the court. n42 We also note that when this point was raise BI. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n42 See pp.D.C. 29, 420 F.2d 597 (1969). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 2. Comparative Consideration In terms of comparative consideration the choice between Charles River and BBI is close n station operation by owners. Charles River's appeal is based on the fact that BBI's is The Commission's conclusion is not necessarily undercut, as Charles River contends, by reating this as a venial sin and not a character defect that in effect vitiated the applic t a standoff under the criterion of proposed program service, as in essence resting on pro h a superior devotion to public service. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n43 This was assigned on the ground that the ownership of Charles River by a charitable unlike BBI's default since "it is a relatively minor disentitlement, in view of the vast n harles River, in the absence of guidance from the Internal Revenue Service, or considerati Since this is an area that turns in substantial measure on guidelines and regulations o is an "independent" agency in its decision-making does not mean that it may not properly Indeed we see no reason why the Commission and Treasury could not have organized a conf t unwittingly or unnecessarily result in an impairment of public interest under the Commun A Task Force of the first Hoover Commission recommended that the chairmen of the indepe that this would facilitate legitimate channels of communication concerning interrelated p ecutive Branch of the Government, at 31-32 (1949). This recommendation (though not endorsed by the Hoover Commission) was followed in reor the Chairman for a majority of the independent regulatory commissions. Taking into account our "collaborative" or "partnership" kind of supervision of the age s would be of minor consequence compared to the strong preference awarded BBI on the integ - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - That in effect meant that the principal difference between Charles River and BBI was a agement by owners." To some extent this difference in presentation may reflect a differenc f the "exuberance" of BBI, he also pointed out that there was nothing wrong with an applic that both applicants suffered from the "endemic" taint of comparative applicants -- exagg says it is merely being realistic, proposing a "meaningful" rather than spurious integrati The Commission considered that the ultimate facts favored BBI on the integration factor rhaps out of "reticence" it had not made as "meaningful" a presentation as it had undoubte pressly declined to discard its proposal, 16 F.C.C.2d at 245, para. 759. There was no find ef in terms of practicability and likelihood of fulfillment. The Commission indicated its ported by substantial evidence in the record. "It is the Commission, not the courts, whic , 136 U.S.App.D.C. 316, 420 F.2d 158 (1969). We see no reason to disturb its judgment. Affirmed. n44 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n44 Greater Boston (II), successor in interest to Greater Boston (I) (one of the compet rest. The Hearing Examiner endorsed the rebuttal in BBI's brief of the Greater Boston (II 258. We see no ground for holding that this appellant had a right to confine the Commission - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -