Document ID: A:\TV9.TXT


          TV 9, INC., APPELLANT v. FEDERAL COMMUNICATIONS COMMISSION,
           APPELLEE; MID-FLORIDA TELEVISION CORPORATION, INTERVENOR;
            COMINT CORPORATION, APPELLANT v. FEDERAL COMMUNICATIONS
          COMMISSION, APPELLEE; TV 9, INC. and MID-FLORIDA TELEVISION
              CORPORATION, INTERVENORS; CENTRAL NINE CORPORATION,
          APPELLANT v. FEDERAL COMMUNICATIONS COMMISSION, APPELLEE; TV
          9, INC. and MID-FLORIDA TELEVISION CORPORATION, INTERVENORS;
            FLORIDA HEARTLAND TELEVISION, INC., APPELLANT v. FEDERAL
              COMMUNICATIONS COMMISSION, APPELLEE; TV 9, INC. and
                MID-FLORIDA TELEVISION CORPORATION, INTERVENORS

                     No. 72-2049, 72-2051, 72-2057, 72-2059

          UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
                                    CIRCUIT

                      495 F.2d 929; 161 U.S. App. D.C. 349



                               February 28, 1974
SUBSEQUENT HISTORY: Reported at: 495 F.2d 929 at 941.

PRIOR HISTORY:
Original Opinion of November 6, 1973, Reported at: 495 F.2d 929.

JUDGES: Fahy, Senior Circuit Judge. Bazelon, Chief Judge, Fahy, Senior Circuit Judge and R

OPINIONBY: FAHY

OPINION:   [*941]   Supplemental Opinion

   FAHY, Senior Circuit Judge:

   The Commission has suggested that the case be reheard en banc. In part the suggestion i
andings of the Commission made in its suggestion for rehearing en banc lead to this Supple

   I

   It is said that the court erroneously has held that merit should be accorded Comint due
Dr. Smith and Mr. Perkins and their participation in station affairs. n1 See the concludin

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   n1 What consideration might be given to ownership of stock alone is not before the cour

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   II

   The Commission mistakenly refers to the court's holding as directing the Commission to 
ut our opinion makes no mention of a preference in this matter. n2 In determining which ap
asing diversity of content, especially of opinion and viewpoint, the court holds only that
g applicants were not foreclosed from seeking similar or greater merit. n3

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   n2 We use "preference" to mean a decision by the Commission that the qualifications of 
 or license turns.

   "Merit" or "favorable consideration" is a recognition by the Commission that a particul
s-factor weighed along with all other relevant factors in determining which applicant is t

   n3 With respect to a preference, our opinion does not hold that a competing applicant, 
fication of opinion and viewpoint in the respects with which the court is concerned in thi
merit to Comint in the weighing process which led to the preference awarded to the competi

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   III


   The position of the Commission is that the comparative standing of an applicant due to 
 meaningful capacity." While no doubt sound as a general policy statement, this position d
xamination of any relevant and substantial factor," thus recognizing that the Act itself, 
nable interpretation of its thrust in light of the basic public interest to be served. Mr.
ith is not specified in like detail, the record demonstrates that he as well as Mr. Perkin
 impressive as to his life and work. In carrying their civic interests now into this new a
rve the public interest. We do not take issue with the reasonableness of the agency's gene
bability that Black persons having substantial identification with minority rights will be
think that such material factors residing in the evidence cannot reasonably be totally and

   The petition for rehearing of intervenor, Mid-Florida Television Corporation, is denied

   Statement of Circuit Judges MacKinnon, Robb and Tamm, as to the reasons why they would 

   With all respect to the ends which the majority has in mind, it is respectfully submitt
ace to be considered as a "merit" in the FCC's evaluation of license applications. There i

   Statement of Circuit Judge Wilkey as to the reasons why he would grant the motion for r

   With all due respect to the ends which my distinguished colleagues obviously have in mi
 is not to give rise to a "preference," but it is to be considered as a "merit" in the FCC

   Semantics aside, the reason why race is an impermissible factor is logically obvious. R
ange. Religion as a factor is also outlawed, not because it cannot be changed, but because

   I think this country and its courts long ago reached the conclusion that race could not
ellow, or red man can achieve the same "merit" point awarded the black man here. This is,