This is аn appeal pursuant to 47 U.S. C. § 402(b)(6) (1970) challenging an order 1 of the Federal Communications Commission (hereafter “the Commission”) granting license renewal for stations WBNS-AM, FM, and TV, Columbus, Ohio. 2 The basic issue raised is whether the Commission could reasonably find that appellant had not raised substantial and material issues of fact sufficient to demonstrate prima facie that license renewal would contravene the public intei’est. We hold that the Commission could so find and, accordingly, affirm the Commission’s order granting the license renewal application and dismissing appellant’s Petition to Deny renewal.
I. BACKGROUND
Appellant Columbus Bi’oadcasting Coalition (hеx’eafter “the Coalition”) is composed of individuals residing in the Columbus stations’ broadcast area. The Coalition seeks, inter alia, to advance the interests of black residents of Columbus. The Coalition here challenges the granting of three separate license renewal applications, 3 timely filed by licensees on July 1, 1970. On August 31, 1970, the Coalition, pursuant to Commission rules, 47 C.F.R. § 1.580(i) (1970), filed a petition to deny the license renewal applications. The Coalition sought a hearing to examine licensees’ ascertainment efforts, alleged monopolistic practices, employment practices, and programming performance. 4 After several extensions of time were granted to both sides and numerous oppositions and replies thereto had been filed, 5 the Commission agreed to consider the matter upon all submitted papers. 6
On January 3, 1973, the Commission issued its Decision and Order, granting the license renewal applications and denying appellant’s petition to deny the renewal. The Commission concluded, after a full consideration of all the pleadings, that the Coalition had raised no substantial or material issues of fact which established a prima facie case for denial, and thus no evidentiary hearing was required. Additionally, the Commission found that the grant of these renewal applications would serve the public interest, convenience and necessity. 7
The Coalition now brings this appeal, asserting that it raised substantial and material issues of fact requiring a heax--ing, and the Commission erred in not granting such a hearing. In particular, appellant submits that substantial and material issues of fact exist as to the following matters:
(a) that renewal of the licenses would lead to excessive concentration in control of “mass media” in Columbus ;
*323 (b) that renewal of the FM license does not serve the public interest in that
1) WBNS-FM’s past programming performance varied from its prior promised programming;
2) WBNS-FM’s past programming did not meet the needs of the black community;
3) WBNS-FM’s proposals for future programming are unsatisfactory;
(c) that the licensees discriminated in employment.
Additionally, appellant argues that the Commission failed to give its allegations a “hard look.” 8
II. THE STANDARD OP] REVIEW
Before discussing each of appellant’s alleged errors, we must focus on section 309(d) of the Communications Act of 1934, 9 which governs Commission conduct in the area of broadcast license applications. In a thorough opinion which analyzed section 309(d), we said recently:
The legislative history accompanying the 1960 amendment of Section 309(d) indicatеs Congress’ intent that petitions to deny filed under the amended Section 309(d) should make
a substantially stronger showing of greater probative value than is now necessary in the case of a post grant [of initial license] protest. The allegation of ultimate, conclu-sionary facts or more general allegations on information and belief, supported by general affidavits, as is now possible with protests, are not sufficient.
In the event, then, that a petition to deny does not make substantial and specific allegations of fact which, if true, would indicate that a grant of the application would be prima facie inconsistent with the public interest, the petition may be denied without hearing on the basis of a concise statement of the Commission’s reasons *324 for denial. While this court in West Michigan Telecasters, Inc. v. FCC [130 U.S.App.D.C. 39 ,396 F.2d 688 ] remanded a decision of the Commission in order that the FCC might either state with particularity the reasons for its grant of a broadcast application or hold a hearing, we recognized :
Admittedly, the scope of our review is quite narrow; we defer to the expertise and experience of the Commission within its field of specialty and would reverse only where the Commission’s position is arbitrary, capricious or unreasonаble . . . [a]nd it is clear that the decision of when hearings are necessary or desirable to clarify issues is one which lies in the first instance with the Commission.
Stone v. FCC,
III. APPELLANT’S SPECIFIC OBJECTIONS
A. Concentration of Control
We now turn to the Coalition’s specific allegations of error. The Coalition asserts that the Commission improperly refused to consider allegations of undue concentration of control of mass media in the Columbus area. Appellant points out that the licensees’ principals own not. only the three WBNS stations, but also the Dispatch Publishing Co., publishers of two daily newspapers and a Sunday newspaper in Columbus. The Commission has elected to deal with the problem of concentration of media control via rulemaking. In First Report and Order, Multiрle Ownership of Standard, FM and TV Broadcast Stations,
13
The Coalition now submits that the Commission has abused its discretion because it has not been diligent in concluding the proposed rulemaking for over 4 years, and thus should no longer be allowed to refuse to consider concentration of control questions. In thе alternative, the Coalition submits that they have pled facts sufficient to show specific abuses by licensees, thus entitling them, under Stone and Hale, to a hearing despite the pendency of the proposed rule-making.
While four years might be characterized as an excessive period for a rulemaking, we realize that concentration of control is an extremely complex question. The Coalition does not allege bad faith or purposefully dilatory proceedings by the Commission. If we are to encourage the Commission to proceed by rulemaking for basic policy changes, 15 we must necessarily be pаtient. We are not, at this time, prepared to say that the Commission has acted improperly by not terminating the rulemaking proceeding and announcing its new rules before now. We, of course, encourage the Commission to act expeditiously in this rulemaking, and reserve the question of at what point a continuing failure to act could be the basis for a different conclusion. It is enough that for now we see no abuse. Further, the harshness of the general refusal to review concentration questions in licensing proceedings is mitigated to an extent by the exception, recognized in both Hale and Stone, that a hearing will be required if specific abuse of multiple ownership can be alleged.
With respect to the Coalition’s allegations of specific anticompetitive practices by the licensees, we think that the Commission was correct in deciding that appellant failed to raise substantial questions of abuse by the licensees’ principals. The Coalition alleged that the Dispatch favored WBNS in its television listings. Further, it was alleged that the Dispatch had caused a competing TV channel’s advertisements to be deleted in retribution for the competing channel’s broadcast of a program critical of the Dispatch. Licensees in rebuttal submitted an аffidavit of the executive editor of the Dispatch stating that the change in advertising format was made solely for journalistic reasons, and that his decision to change was made several weeks prior to the program critical of the Dispatch. We believe that the Commission acted properly when it ruled that the Coalition’s allegations, without specific factual support were not sufficient to require a hearing.
The other major issue relating to abuse of media control by licensees concerns WBNS-TV's reaction to a program broadcast over WBNS in 1967 during which the Housing Director of the Urban League purportedly сriticized licensees’ principals for attempting to block the formation of a new minority owned bank. The Coalition alleged that, after broadcast, licensees attempted to force the Urban League to pay for the program, although it was normally carried on a sustaining basis. Further, the Coalition alleged that licensees forced the resignation of the Housing Director. Licensees submitted a statement from the Urban League that payment was never demanded. The Executive Director of the Urban League stated positively that the resignation of the Housing Director was not caused by any aсtion on the part of the licensees. We again agree with the Commission that the Coa *326 lition failed to submit specific facts which demonstrated an abuse by the licensees’ principals of their joint ownership of the Dispatch and the various broadcast facilities.
B. Programming
Next, the Coalition urges that the Commission erred by not granting a hearing on substantial and material issues concerning whether the grant of the renewal application would be prima facie inconsistent with the public interest. These issues center around WBNS-FM, and concern its programming, past and proposed.
As we have held in prior cases, a renewal applicant must literally “run on his record” in demonstrating that his past programming performance has been responsive to the needs of his broadcast area. Office of Communication of United Church of Christ v. FCC,
As to programming, the Coalition asserts, first, that sufficient evidence was produced to require a hearing on whether' WBNS-FM’s past programming performance varied substantially from its prior representations before the Commission.
16
This can, of course, be grounds for denial of a renewal application. FCC v. WOKO, Inc.,
The Coalition admits that it did not raise the “promise versus performance” question in those terms before the Commission (Appellant’s Br. at 20). A thorough reading of the record and Commission opinion indicates that the Commission did not consider the issue as being before it. The Commission stated clearly: “In the absence of substantial variations, no questions of promise versus performance will arise. There is no such question in this proceeding.”
With regard to WBNS-FM’s past performance, appellant asserts, second, that past programming did not meet the needs and interest of the substantial black population in its broadcast area. Appellant here submits that a hearing should have been held concerning either of two specific criticisms of licensees’ past FM perfоrmance. We shall denominate them, for purposes of brevity, as public affairs and black music format.
As to public affairs, the Commission found on record evidence that while WBNS-FM relied primarily upon news and public service announcements to meet community needs, it did rebroadcast public affairs programs which originated on the AM station. These rebroadcasts occurred at different times than the AM broadcasts, thus increasing audience size. The Commission found that 1.67% of the FM station's time was devoted to public affairs programming. The evidence presented by licensees, summarized above, was entirely unrebutted by аppellant who simply asserted its subjective characterization of licensees’ performance as unsatisfactory. Programming is a matter left largely in the discretion of the licensee and can never be measured by a simple percentage test. Stone v. FCC,
supra
at 328. Furthermore, public affairs broadcasts cannot be broken down into “black points of view” versus “other points of view.”
See, e.g.,
Evening Star Broadcasting Co.,
In assessing the validity of appellant's asserted error in the area of black music format, the result is the same. Appellant alleges only that it conducted an informal survey which disclosed that some of those surveyed felt more black performers ought to be played on the FM station. It is undisputed that the station’s actual broadcast was not monitored nor was the survey ever submitted to the Commission. Licensees submitted a chart to the Commission which demonstrated that black artists were not excluded from the station’s format. The Commission found, and we agree, that on the evidence submitted appellant did not sustain its allegаtion of discrimination against black performers. 18 Further, we point out, as did the Commission, 19 that normally ascertainment and programming are evaluated on the basis of community affairs programming, not music format. This is the case because each broadcast area will presumably have several radio stations, each of which will have its own specialized entertainment format. Of necessity, each station’s format will not suit the taste of every individual or group. Hence, problems shared by the community provide the current standard by which to review past performance. Cf. Stone v. FCC, supra at 328 n. 44.
Appellant next asserts that a hearing should have been held on the issue of whether WBNS-FM’s proposed future programming will serve the public interest. WBNS-FM proposed to devote the following minimum amount of time to non-entertainment programming categories: 6.0% news; 1.5% public affairs ; 2.0% all other. Appellant alleges that since the 1967 proposed figures were 7.5% news; 2.5% public affairs *328 and 0% all other, the reduction in proposed news and public affairs programming, without more, constituted a prima facie case for denial of renewal. The Commission disagreed, stating that “the mere citation of what is deemed to be an insufficient amount of programming in these categories, without any evidence to suppоrt the assertion that such performance will fail to serve the public interest, is insufficient to raise a substantial and material question of fact as to whether a station will serve the public interest.” 38 F.C.C. 2d at 743.
We believe the Commission was correct. As we said in the context of an assignment application in Hartford Communications Committee v. FCC,
The program schedule, time or percentage of a licensee need not be identical with those of the previous licensee. The test for dimunition of service is not mathematical equality, but the public interest.
C. Employment Discrimination
Equal employment opportunity in the broadcast industry has been a source of concern for the Commission 20 and this court 21 in recent years. In the proceeding before the Commission, appellant contended that licensees did not employ black persons in significant numbers when measured against the black population in the broadcast area. Appellant contended further that black employees actually hired were placed in low visibility, nonpolicy making positions which had little future potential. In support of this assertion, appellant mentioned the case of Mr. Roosevelt Carter who, it was alleged, left his job at the TV station because he had no hope of future advancement and because a white man with less experience was hired to fill a position superior to that held by Mr. Carter.
Licensees submitted evidence as to the actual numbers of black employees contending that the figures were in keeping with the black population generally. Further, licensees submitted evidence concerning their minority recruitment and training program which they call the “Broadcast Skills Bank.” Finally, licensees disputed appellant’s account of the facts surrounding Mr. Carter’s departure from their employ.
The Commission initially noted that in order to challenge a licеnsee’s action with regard to equal employment opportunity “a petitioner must demonstrate with some degree of specificity that the licensee’s employment policies and practices contain barriers to equal employment opportunity or that the licensee has in fact discriminated against applicants and employees because of race, col- or, religion, national origin or sex.” 38 F.C.C. 2d at 745-46.
See
Time-Life Broadcast, Inc.,
Turning first to the statistical data which appellant contends supports its claim, we note that it is Commission policy that fully proportional employment is not required by the Commission’s rules.
See
Non Discrimination in Employment Practices of Broadcast Licensees, 23 F.C.C. 2d 430 (1970). The facts as found by the Commission are as follows. The 1970 Census reveals that 11.6% of the Columbus Standard Metropolitan Statistical area is black.
The Commission noted that “while an extremely low rate of minority hiring may raise questions” requiring a hearing, 38 F.C.C. 2d at 746, here “the composition of the WBNS stations’ minority staff falls within a range of reasonableness when compared to the percentage of minorities in the stations’ service areas.” Id. The finding appears amply supported in the record and reasonable. In fact, in its brief to this court, appellant agrees, saying “the licensee’s total рercentage of black employees is significant in terms of the black population of the licensee’s service area.” Appellant’s Br. at 62.
Appellant, while choosing not to dispute the finding of the Commission as to the statistical evidence, now relies upon two principal arguments to show either a pattern or policy of unequal treatment or an individual instance of discrimination. First, appellant contends that there exists an erratic employment pattern which, without more, would require a hearing. While it is true that the number of black employees declined by one (18 to 17) between 1971 and 1972, the number of employees also declined (188 to 170). Appellant alleges that licensees have no active commitment to minority recruiting, hiring blacks solely to produce statistics which would please the Commission in this renewal proceeding. On this point appellant has offered no proof and apparently did not raise this argument with the Commission.
The evidence produced by the licensees concerning minority hiring, on the other hand, was impressive. The Broadcast Skills Bank is an organization formed by licensees and other Columbus area broadcasters to recruit, train and place workers in the broadcаst industry. The head of the Skills Bank stated in an affidavit that the directors of the program were meeting regularly, establishing a training program, and screening 15 to 20 applicants per week. He indicated that the program was directly responsible for “literally doubling the employment of black people” in the Columbus broadcast industry.
23
The Commission concluded, and we agree, that the uneon-tested evidence showed that licensees had an active minority recruiting program which had l’esulted in blacks accounting for 20% of all licensees’ new hires during the past license term.
Next, appellant points to Mr. Carter’s voluntary termination as a specific instance of employment discrimination. The facts alleged by appellant were that Mr. Carter left his job because a white man was hired to fill a *330 job to which Mr. Carter aspired. To support the claim that Mr. Carter left because of unfair treatment it was contended that Mr. Carter took a lesser paying job outside the broadcast industry. These allegations were supported only by a letter by Mr. Carter addressed “to whom it may concern.” J.A. vol. I at 91. Licensees submitted affidavits that stated that Mr. Carter left for reasons other than race. J.A. vol. I at 232, 236-38, 265-66. Licensees also submitted a letter from Mr. Carter’s subsequent employer stating that his pay in his later job was $9,226.89 per annum, a figure more than $2,000.00 higher than he received at WBNS-TV. J.A. vol. I at 264. Finally, licensees submitted a letter which they received from Mr. Carter when he left their employ which praised the station for being “color blind” and concluded with an apparently sincere thank you. J.A. vol. I at 267.
On the basis of this evidence the Commission could have reasonably found explicitly that there was no raсial discrimination whatsoever involved in the Carter incident. If the two unsworn, contradictory letters from Mr. Carter are viewed as raising a disputed question of fact, that question would be only as to Mr. Carter’s state of mind, his perception of discrimination. As we have held, contradictory allegations “which create some possibly unresolved factual issue do not invariably necessitate an ev-identiary hearing.” Broadcast Enterprises, Inc. v. FCC,
D. Failure to Give a “Hard Look”
Finally, appellant alleges that the Commission failed to give their case a “hard look.”
See e.g.,
Greater Boston Television Corp. v. FCC,
Affirmed.
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.
ORDER
Appellant’s suggestion of in banc consideration having been transmitted to the full Court and no Judge thereof having called for a vote with respect thereto, it is
Ordered by the Court en banc that appellant’s aforesaid suggestion of in banc consideration is denied.
Statement of Chief Judge BAZELON, concurred in by Circuit Judges J. SKELLY WRIGHT, McGOWAN, TAMM and WILKEY.
I would vote to deny rehearing en banc on the basis of Judge Tamm’s concurring opinion in Hale v. FCC,
Notes
. RadiOhio, Inc.,
. The stations are all owned and licensed by RadiOhio, Inc. and WBNS-TV, Inc., Columbus, Ohio, intervenors below and intervenor-appellees here (hereafter “licensees”).
. One each for the AM station, the FM station, and the TV station.
. We do not elaborate on the Coalition’s original Petition to Deny because appellant now alleges error in the denial of a hearing on certain discrete allegations. These will be fully discussed infra.
.
See
. This may have been a technical violation of the Commission’s pleading rules.
See
.
. See Greater Boston Television Corp. v. FCC,
. 47 U.S.O. § 309(d), as amended 1960, provides :
§ 309. Application for license.
(d) Petition to deny application; time; contents ; reply ; findings.
(1) Any party in interest may file with the Commission a petition to deny any application (whether as originally filed or as amended) to which subsection (b) of this section applies at any time prior to the day of Commission grant thereof without hearing or the day of formal designation thereof for hearing; except that with respect to any classification of applications, the Commission from time to timе by rule may specify a shorter period (no less than thirty days following the issuance of public notice by the Commission of the acceptance for filing of such application or of any substantial amendment thereof), which shorter period shall be reasonably related to the time when the applications would normally be reached for processing. The petitioner shall serve a copy of such petition on the applicant. The petition shall contain specific allegations of fact sufficient to show that the i)etitioner is a party in interest and that a grant of the abdication wоuld be prima facie inconsistent with [the public interest]. Such allegations of fact shall, except for those of which official notice may be taken, be supported by affidavit of a person or persons with personal knowledge thereof. The applicant shall be given the opportunity to file a rei)ly in which allegations of fact or denials thereof shall similarly be supported by affidavit.
(2) If the Commission finds on the basis of the application, the (Headings filed, or other matters which it may officially notice that there are no substantial and material questions of fact and that a grant of the appliсation would be consistent with [the public interest], it shall make the grant, deny the petition, and issue a concise statement of the reasons for denying the petition, which statement shall dispose of all substantial issues raised by the petition. If a substantial and material question of fact is presented or if the Commission for any reason is unable to find that grant of the application would be consistent with subsection (a) of this section, it shall proceed as provided in subsection (e) of this section.
. Stone v. FCC,
. Anti-Defamation League of B’nai B’rith Pac. S.W.R.O. v. FCC,
. Stone v. FCC,
supra
n. 10 at 322,
quoting W
est Michigan Telecasters, Inc. v. FCC,
. Commonly called the “one to a market proceedings.”
.
See
. Stone v. FCC,
supra
n. 10 at 331; Hale v. FCC,
. The representations are contained in their 1967 license renewal application.
. Appellant, while admitting that it did not raise the issue with the Commission (Appellant Br. at 20), contends that the test is not whether an issue was raised by the individual seeking review, but “whether the Commission had in fact had the opportunity to pass upon the particular question of law or fact.”
(Id.)
The cases cited in the text do not support this proposition. Appellant relies upon a Sixtli Circuit decision, Buckeye Ca-blevision, Inc. v. United States,
.
. Id.
.
See
Nondiscrimination Employment Practices of Broadcast Licensees,
.
E.g.,
Stone v. FCC,
supra,
n. 10; Billingual Bicultural Coalition of Mass Med. Inc. v. FCC,
.
. Affidavit of Mr. Charles White, J.A. Vol. I at 199-205.