*1 COMPA- BROADCASTING FOLKWAYS Inc., Appellant, NY, COM-
FEDERAL COMMUNICATIONS MISSION, Appellee, Harriman L. Crowder
F. t/a Co., Intervenor.
No. 19971. Appeals
United Court of States District of Columbia Circuit.
Argued Sept.
Decided Jan.
Tamm, Judge, dissented. Circuit *2 Before Bazelon, Chief Judge,
Fahy
Judges.
Circuit
Tamm,
FAHY,
Judge:
Circuit
years ago
trading
Crowder,
F. L.
Five
Broadcasting Co.,
Harriman
interven-
appeal
or on this
and referred
to as
Crowder, applied to the Federal Commu-
appellee,
Commission,
nications
for
new
Harriman,
standard broadcast
Folkways Broadcasting
Tennessee.
Com-
pany,
Inc., appellant,
is the
licensee
station, WHBT,
AM radio
in Harriman.
petitioned
to
Commission
application
alternatively
designate
hearing
it for a
on issues
by Folkways.
Commission,
set forth
however,
14,
January
1966,
on
without
granted
application
for
permit
construction
for the station. Two
Commissioners
dissented
and another
concurring
filed a
The latter
statement.
expressed disapproval of “Carroll” issue
adopted
previously
standards
the Com-
mission in Missouri-Illinois
Co.,
Reg.
3 Pike &
Radio
Fischer
2d
independently
but concluded
those
standards that WHBT had failed to make
prima
injury.
out a
ease of
facie
question
Folkways
Our
is whether
evidentiary hearing
entitled
presented.
of the issues it
Folkways’ right
de-
to such
deny,
pends
petition
its
support,
and data
considered with the
reply
properly
of Crowder and other data
Commission,
require-
before
met the
309(d)
forth in
ments set
Section
1934.1
Communications Act of
This sec-
spe-
requires
petition
to contain
Kenkel, Washington,
C.,
Mr. John B.
D.
petitioner’s
cific
in-
show
Schroeder,
with whom Mr. Arthur H.
party,
terests as a
raise such sub-
and to
C.,
Washington,
brief,
D.
questions
stantial and material
of fact as
appellant.
evidentiary hearing
necessitate
Ehrig, Counsel,
Mrs. Lenore G.
Federal
grant
enable
Commission to find that
Commission,
Communications
with whom
Geller,
Counsel,
Henry
Messrs.
General
Folkways,
interest.
sta-
licensee
Conlin,
John H.
Coun-
Associate General
competition
tion which would
with
sel,
Counsel,
Fishman,
and William L.
party
Crowder’s was a
This
in interest.
Commission,
Federal Communications
disputed.
is not
appellee.
were on the
brief
Bilger, Washington,
Mr.
presented
Donald E.
D.
of the issues
One
C., for
Folkways
intervenor.
is whether
made ef
amended,
309(d).
Stat.
§
As
47 U.S.C.
community
knowledge
so,
extent,
and,
of the business
forts
sufficient
agreed
served,
esti
tastes,
that Crowder’s
and desires
needs
determine
served,
anticipated
first
for the
mate of
revenues
Harriman and
area to be
together
year
operations,
com
required
the standards established
assets,
July
capital
suf
mitted
release
brought
“Report
ficienty
call
entitled
and Statement
*3
evidentiary
insist
an
Policy
En Banc Pro
the court to
Re: Commission
FCC,
Henry
hearing
gramming Inquiry.”
unn
found
In
which the Commission
ecessary.3
U.S.App.D.C. 257, 260,
F.2d
112
302
Broadcasters,
194, affirming Suburban
trafficking issue —wheth
On the
under these
30 F.C.C.
that
we held
trafficking
engaged
has
er Crowder
“simply wheth
standards the
authorizations, and wheth
of broadcast
may require
that
er
Commission
grant
present
would
er
of its
applicant
inter
demonstrate an earnest
opportunity
traf
another
for such
create
serving
community by evi
est in
a local
ficking,
public in
inconsistent
with
familiarity
dencing
particular
a
its
with
hearing
a
terest —we conclude
In
and an
needs
effort
to meet them.”
sup
should have
held.4 The record
been
present case
states
the Commission
ports
forth
the factual
set
situation now
that,
judgment,
matter of
the man
“as a
as relevant to this issue.
survey
ner in
leaves
was made
ownership
obtained sole
Mr. Crowder
something
desired,”
which we
to be
5
operated
and
in 1950
of station WHBT
agree;
but our
the record
review of
it
1956
station until he sold
us
leaves
unconvinced that
Commis
Sep-
61,000
In
profit
dollars.
of some
sion’s clearance of
on this issue
granted
construc-
he
tember
mind
should be set aside.
of like
We are
WDEH,
permit for
Sweet-
misrepresentation,
on the
related
op-
water,
commenced
Tennessee. He
fact,
or failure to
material
disclose
February
init
and sold
1955
eration
community
regarding
survey
dollars,
profit
January
57,500
tastes,
However,
and
needs
desires.
22,000
approximately
dollars.6
though
influences,
it
record
this issue
granted
applied
also
for and was
1956 he
control,
does not
our
on the traf
decision
WLIV,
permit for station
construction
ficking issue discussed infra2
Livingston, Tennessee,
held
in which he
Appellant
fifty
interest,
per
also raised an issue
sold
cent
which he
Folkways’
qualifications.
responding
as to Crowder’s financial
in 1964.
Considering
applicant’s experience
present
trafficking
in the
area, including
experience,
represents
proceeding,
broadcast
Mr. Crowder
making
indicates that
the Commission must be satisfied
think
required survey
prom-
applicant’s ability
fixed
seven letters from
all
to meet
of an
organizations
during
operating expenses
charges
were
inent
local
citizens
including
year
operations,
“com-
solicited
Crowder’s
former
the first
manager.”
eight
expenses.
mercial
A
a matter
These
staff
organizations
right
letters
from
outside the
Act are sat-
when the criteria of the
community
protesting party.
business
filed with
were
isfied
developed
It
three
Commission.
4. One of
the bases
for Commissioner
letters,
though
the solicited
written
Bartley’s
of the
dissent
the refusal
organization,
of a local
the letterhead
hearing on this is-
to order a
organiza-
were not official views of the
sue.
signers
tion,
also
and the
of these letters
maintained
sta-
5. He had
an interest
disassociated themselves
some
possible implications
tion since 1946.
letters.
of the
pe-
figures,
brief, mistakenly
6. These
taken from
3. The Commission’s
deny,
part
contends,
think,
so,
are
on rec-
tition
based
to do
seems
dis-
are not
ords
puted by
Commission and
To
this was a matter of discretion.
grant
grant
Crowder.
not a
or not
We
matter of Commission discretion.
he
that,
forced
ill
sell
health to
it arose at all. As to
events which
begin
his interests in WHBT
WDEH:
did
are
until 1956
sufficient to
“Upon
require
evidentiary
advice
probing
doctor’s
Mr. Crowder re-
completely
hearing.
tired
participa-
from active
industry.”
tion in the radio broadcast
We also think the Carroll issue
However,
applied
when he
for Commis-
needs further consideration
Com
approval
sion
two
sales in
mission,
is,
the issue whether the
give
though
he failed to
this reason
economics
would
situation
lead
Commission asked for a fuller statement
degradation
of service
of his
reasons.
was not
until
application granted.
In Car
suggested.
that health reasons were
FCC,
roll
Co. v.
103 U.S.
Moreover,
“retiring
when
he was
App.D.C. 346,
440, relying
258 F.2d
heav
completely
broadcasting
from the radio
ily upon FCC v.
Bros. Radio Sta
Sanders
industry,”
applying
li-
was also
for a
*4
tion,
693,
309
L.Ed.
U.S.
60
84
S.Ct.
Livingston station, repre-
cense for the
held
we
that while economic
senting
fifty per
that he
towas
be a
cent
existing
ground
to an
a
station
not
for
is
partner
general manager
and the
of the
denying
application,
a new
basic
the
station.7
requires
charter of the
to
Commission
it
public
imposes
act in the
interest. This
accept
cannot
Com
The court
the
duty
Commission
to determine
the
a
inconsistency
mission’s
of no
conclusion
the
whether
economic effect
another
representations
in these
the
damage
licensee in an area
be to
would
trafficking
before the Commission. The
destroy
incompati
service to an extent
affecting
vitally
is
a sensitive one
public interest,
depend
ble
ing upon
the
this
public
represented by
the
Act
interest
the
problem
the facts. The
arises
Li
administered
the Commission.
protestant, or,
case,
when a
as in this
one
granted
public
censes cannot
in
be
in the
petitions
application
who
that an
be de
terest
to
who seek
those
them for sale
nied,
prove
offers to
reasons
that
the
may
rather
than
a
service. There
be
suggested
grant
thus
the
would be detri
reconciling
rep
basis for
the inconsistent
public
sup
mental to
interest and
the
prevents
resentations in a manner which
ports
position
showing
this
a
that is
disqualification
Crowder,
sub
but the
enough
genuine
substantial
to
create
ject
hearing.
needed examination at a live
factual
issue. Carroll was decided in
There is substance to the
of Com
dissent
Congress
1958.
amended the statute in
Bartley, expressing
missioner
view
his
1960.9 Thereafter
considered
petition
that WHBT’s
to
raised
problem
Operating
in
anew Southwestern
question
trafficking, requir
serious
ing
to FCC,
U.S.App.D.C. 137,
Co. v.
122
138
evidentiary hearing
to
resolve
n.2,
n.2,
351 F.2d
835
decided
response
matter.8
re
fails to
1965, stating
legislation,
that
new
Crowder,
solve it.
fact that
as the
The'
states, operated
deny,
petition
station
to
created the device
selling
WHBT from
to
1956 before
advance of hear
which must be filed
ing
it
question;
and,
does not
indeed,
answer the
it clear that
made
question
trafficking
petition
is
not whether
need
if
be held
prior
intent
specific
but
arose
to “contain
failed
supplemental
7. In his
statement
on an “as-needed basis.”
to be an advisor
present proceeding
present application
Crowder stated
also
In.the
partner
manager”;
“general
because his
the WLIV sta-
will
he
be a
claims
inexperienced
urged
personal
tion was
he
consented
it
his
but this time
expertise
supervisory position
“gen-
participation
hold a
termed
and
the venture
manager.”
granting
eral
He now states that
considered
are factors
be
wholly descriptive,”
application.
title was “not
for he
capacity
during
was to
in this
serve
4, supra.
8.
note
See
stages
preparatory
application.
of the
broadcasting
889, amending
Once the
station was
§
Stat.
U.S.C.
Judge
ergy.
Bazelon’s dissent
peti-
See Chief
that the
of fact sufficient
show
delay
factor loses
in Southwestern.
party
is a
in interest and
tioner
good
significance
pres-
deal in
grant
application
be
would
light
long
unex-
ent case in
prima
pub-
facie
with [the
inconsistent
plained delay
proceedings
unrelat-
interest,
and neces-
lic
convenience
* *
hearing.11
309(d)
ed
desire for a
sity]
U.S.C.
§
specificity,
toAs
adverse economic
(1).
If
are no
“there
substantial
*
* *
impact
an exist-
questions
new
material
of fact
ing
degree
im-
one
grant
pact
detrimental,
public
all,
interest]
consistent with [the
”
*
**
subject
interest, are
exact calcula-
petition
not
shall
denied
hearing.
grant
of these
the licensee. Assessment
and the
made without
* *
ordinarily
judg-
effects is
an informed
309(d)
(2).
47 U.S.C.
[But]
§
having
quality
prophecy.
ment
some
if “a substantial
material
might
knowledge of
At times
presented
there
be a
of fact is
or the Commission
specific
financial
loss and
detri-
unable to make the
reason is
consequence
programming,
[public
finding,”
mental
but
applica-
interest]
hearing may
nearing
we think a
is-
Carroll
tion shall be
on the
set for
pre-knowledge
limited to a case in which
raised.
sues
exact economics of the situation
pointed
We
out
Southwestern
necessarily
Requiring
available.
such
temptation
existing
“the
to an
licensee
*5
precision
would eliminate
doctrine
the
postpone
long
the advent
practical
hear-
matter.
If the Carroll
by
competition
special
of
care
warrants
ing
continue,
adjustment
is to
then some
scrutiny
the
Commission in
re
the
required.
allega-
specificity
is
The
hearing
quests for
in Carroll circum
309(d)
tions
to in
must
referred
Section
stances.” But
held that
we nevertheless
require
not be construed to
such exact-
papers
the
with the Commission
filed
practically impossible.
ness as is
and
that case
materi
“raised substantial
al
issues
fact which should have been
placed
Folkways and intervenor
exposed
give-and-take
of an evi
the
good
deal
before
the
dentiary hearing.”
supra
Southwestern,
subject
economic data
at
which would have to be abandoned. Ex-
I
position
hearing
the matter
majority opinion
concludes
simply
should not be denied
because a
held a hear-
have
Commission should
petitioner
specified
pro-
has not
the exact
trafficking
ing
Traffick-
issue.
on the
gram
alleged
loss would
cause
context, de-
ing,
of art
in this
term
So, too,
abandoned.
as to
loss
acquisition
notes,
essentially,
judg-
advertisers.
Here
reasonable
rather
than
for
licenses
resale
broadcast
ment
reached,
the licensee must be
operation.
practice of traffick-
supported
in its
reasonableness
regarded by
consistently
ing
been
has
strong showing,
only
but it need be
such
contrary
pub-
being
judgment,
not an exact
of facts—
detail
of Part
amendment
lic interest.
See
example,
knowledge
necessarily
Rules,
Pike
the Commission’s
specific
advertising shifts.
determining
Fischer R.R. 1503.
The court does not
relish the
exist,
trafficking
conditions
devising
task of
different
standards from
timing,
intention,
Commission considers
adopted by
those
the Commission. Un
Broadcasting Corp.
price (Atlantic Coast
due interference
the court
is itself
Fischer, R.R.
Charleston),
22 Pike
contrary
public interest,
but we
history
applicant’s
entire
1045 and the
suggest
respectfully
the Commission
acquisition
and resale.
radio
license
ground
seek
which the CarroU
(Franklin Broadcasting Co.,
22 Pike
can
doctrine
stand which will avoid un
necessary
880).
consuming hearings
and time
Fischer R.R.
but which at the same time will not make
applicant-inter-
Crowder,
L.
F.
right
to a
practically un
part
had a
proceedings,
venor
in these
attainable. We
decide
the rea
WHBT
ownership in Radio Station
given by
sons
the Commission for the re
owner
sole
early
and became
as 1946
jection of
the CarroU
are not sat
the station
He
sold
that station
isfactory.
having
in whole
it
owned
after
By reason of the data before the Com-
years.
part
for ten
alleged
mission on the
threat of a rate
WDEH
of Radio Station
the sole owner
war, and
possibility
of unfair
Prior
years
from 1954
for two
*7
competition,
ruinous
think
an evi-
only other
application, his
present
to his
dentiary
CarroU
required.
broadcasting operation was
interest
in
respects
the CarroU
should
issue
ownership
fifty
of WLIV
per cent
consistently
reconsidered
with the
then,
follows,
over
to 1964.
expressed
views above
and a further evi-
has
eighteen-year
period, Crowder
this
dentiary hearing
petitioner
afforded
radio
three
in
proprietary interest
had
upon such reconsideration as we indicate
years, one for
for 10
one
stations:
the Commission is
unable
resolve the
years. There is
years
for 2
and one
present
matter on the
Moreover,
record.
ac-
that Crowder
in
evidence
the
previously
stated,
evidentiary
hear-
for the
any
stations
quired
of these
one
ing on
trafficking
the
required.
issue is
& n
selling
profit;
nor
purpose
it at
The case is reversed and
any party
remanded
by
any
contention
there
proceedings
further
any
price
not inconsistent
resale
proceedings
opinion.
with this
exorbitant
stations
of Crowder’s
fair
current
the then
at variance with
Judge
TAMM,
(dissenting):
Circuit
holdings.
con-
market value
respectfully
I
Com-
sistency
of the
dissent
from those con-
of the
trafficking
my
clusions of
upon
they
cases
policies
brethren
in
mission’s
sion,
applying
case
in
in the current
in
factual situation
license for
by
operation
Commission action in
illustrated
of a radio station in Liv-
Television, Inc.,
ingston, Tennessee,
Versluis Radio and
that he would
abe
Radio,
1123;
fifty per
general
partner
Pike and
R.R.
Good
Fischer
cent
and
man-
1036;
ager
Inc.,
inconsistency
and Fischer R.R.
Pike
of the station. The
Broadcasters,
allegedly
serving
general
Laramie
20 Pike
relates to
his
agree
manager
Although I
R.R. 423.
Fischer
new radio station in Liv-
trafficking
ingston
majority
disposing
issue
interests
while
his
affecting
vitally
“is
sensitive one
in Harriman and
stations
Sweetwater
nevertheless,
public interest,” I,
upon
cannot
reason of ill health. Called
case,
Commission,
facts in
viewed
conclude
this
as a result of
light
rulings,
challenge,
enlarge upon
question,
in the
of Commission
this
trafficking
requiring
Crowder
informa-
issue
submitted additional
suggested by
substance,
is even
the record.
tion to
Commission.
replied
Crowder
to the Commission that
“general manager”
the term
II
“wholly descriptive”
very
of the
limited
express
in their
My
concern
brethren
activity
actually contemplated
he
trafficking
rel-
of the
consideration
performed.
explained
Crowder
that be-
representa-
“inconsistent
to the
ative
brother-in-law,
cause his
desired
reasons
as to the
tions” made
Crowder
go
broadcasting business, he,
into the
sale,
interests
of his
for his
Crowder, agreed
supervisory
in “a
act
they
WDEH
WHBT and
Stations
capacity
preparatory stages
accept the Commis-
therefore decline
application, and until the station went on
already
have
sion’s conclusion. As I
air,
point
and after that
he
time
out,
ownership
in-
pointed
Crowder’s
would act
advisor
an as-
spanned a
radio stations
terests in three
needed basis.”
his
Crowder affirmed
years.
nearly twenty
Each
period of
fifty per
station,
ownership
cent
relating
purchase or
transaction
recounted that he recommended and
approved
been
had
sale
those interests
attorneys
engineers, purchased
hired
including
Commission,
equipment, “and the like.” Crowder stat-
appellant’s present
that,
ed
station. When
to the Commission
in-
sale
after his
began
itial activities when the station
appellant
question, the Com-
raised this
broadcasting,
he was not active in
supple-
mission
called
Crowder
capacity other than as an advisor to his
pleading
respect, and
ment his
accept-
brother-in-law. The Commission
Upon
supplemented
did
so.
explanations
they
ed these
and found that
alleged
record, the
found the
were not inconsistent with
informa-
apparent
than
inconsistencies
“more
tion furnished the Commission in 1956.
Although Crowder,
real.”
stat-
specific allegation
Absent some
of fac-
inter-
ed as his reason for the sale of his
inaccuracy
matters,
tual
in these
est
Stations WHBL and WDEH
Commission’s action seems to
to be
me
quit
“wanted
the broadcast busi-
completely reasonable,
within the orbit
Sweetwater,”
ness in Harriman and
authority,
lacking any
*8
its
semblance
Commission found
in
that his statement
requiring
justifying
of a situation
proceedings
the current
and ill health
hearing. Appraised realistically, I think
reason
not
for these
sales
the entire record of
“inconsist-
these
charge
so
of
inconsistent as to warrant a
encies” is a mountainous molehill of triv-
contrary
misrepresentation.
me,
To
iality successfully injected
pro-
into the
capricious.
conclusion would be
ceedings solely
purpose
for the
effec-
of
tuating delay
alleged inconsistency
Commission’s and
relates
disposition
to Crowder’s statement
to
Commis-
court’s
of the case.
competition
applicant,
from
III
recognition
public.
serve
It
their
majority
record
finds
principles
of
concluded in
these
that we
issue,”1
est,
id
“Carroll
Carroll, supra,
that:
situation
the economics of the
granting
of
affected
existing
so
“economic
to an
sta-
deg-
applicant
a license to
as to lead to a
tion, while not in and of itself a mat-
public,
radation
of
to the
service
moment,
important
ter
becomes
for
remands this issue to the Commission
spells
when on the
it
diminution
facts
I
is
“further
consideration.”
think it
or destruction
service.”
258 F.2d
well
recall
of life
the economic facts
(Emphasis
supplied.)
at 443.
application for a
when an
exist
Recognizing,
however,
potential
competition
new radio station threatens
weapon
delay
presented
for
that Carroll
existing
to the revenue of an
station.
existing
by compe-
stations threatened
Operating
We observed in Southwestern
potential
license,
tition from a
new
Comm’n,
Co. v. Federal Communications
cautioned:
835,
U.S.App.D.C. 137,
834,
351 F.2d
(1965),
opinion
temptation
n.2
“This
that
to be construed or
“the
applied
existing
postpone
long as
licensee to
as a
mandate
the Commis-
competition
sion to hear
the advent of
war-
and decide the economic
special
every
grant.
rants
care
effects of
the Commission
new license
meaning.
scrutiny
that,
requests
has no such
for
We hold
fear,
existing
is,
when an
Carroll
There
I
offers
circumstances.”
licensee
prove
tendency
that
to extend the doctrine of the
the economic
effect
beyond
expressed
Carroll
far
another
station
case
would be detrimental
teaching. Recalling
interest,
was bot-
Carroll
Supreme
opinion
opportunity
pres-
should
tomed
afford an
Court’s
for
* *
proof
entation
of such
Federal
Comm’n
Ibid.
Communications
(Emphasis
Station,
supplied.)
Sanders Bros. Radio
U.S.
(1940),
60 S.Ct.
309 advertising belief, charging allegations station from lower information Supreme general competitor’s. supported by is The affidavits as rates than recognized Sanders, supra, “that possible protests not Court in is suf- now broadcasting Cong., one of free 1st the field ficient.” S.R. 86th S.Ct., competition.” U.S., at 60 Sess. at 697. Capitol Federal Co. v. blurred; U.S.App. then, Comm’n, 116 picture, Communications becomes The (1963), we held F.2d 402 obscured; D.C. contam- the record the required in the ab majority fear, of the inated; and, I the sence of substantial factual filing deceived, by the coun- panel the which, true, prima facie establish a if majority affidavits described ter application. the case for denial the gossip question- opinion. Back fence Operating Case, supra, we Southwestern admissability of law a court able stated that: lofty of “evidence” level the elevated to form. “Congress by presentation affidavit in the FCC intended vest employ- departed other’s the affiant large One time-con- discretion to avoid filing inter- subsequent the ment suming hearings in field this whenever application and entered * * venor’s license F.2d, *.” 351 at 835. appellant. The coun- employment of My conclusion the record on the affiliation affiant had some business ter by succinctly expressed Carroll issue is intervenor-ap- Crowder, the L. with F. our observation in Radio-Tele KGMO apparently plicant, to serve—at vision, Inc. v. Federal Communications staff of Crow- rumor—on the least Commission, U.S.App.D.C. 1, F. granted. license were station if der’s (1964), 2d a somewhat each cross-label label and affiants The record, similar “it is within liars, unequivocal a conclusion authority require more Commission’s any- capricious arbitrary neither nor gave.” appellant information than grasp of the obvious. a minimal one with majority opinion Recognizing impossibility, as well The holds that undesirability, attempting satisfactorily eval- Commission to appear- “has not met” credibility testimony contention that “Crowder’s uate the engage presented conflicting affidavits, ing factual threat to in rate war” hearing. here, however, two question requiring disclosed a factual situation Applicant obviously persons motivated filed with the Commission —each gain willing listing at- proposed personal rate card the rates reasons — charged making advertising of oral state- new test or anyone but presence of radio station if license out of the were issued. ments is, substantially resulting proposed The The situation rates themselves. were charged which, being consequently, lower than for sim- one those affidavits, Folkways. by appellant The ilar time issue is created proposed rates, however, required, in order identical were Commission appellant, find with the which Crowder had to decide in favor rates alleged by charged successfully operat- Willis when had conversations he Livingston, despite true, the vehement ed Radio Tennessee, Station WLIV fact Scarbrough. comparable and were those denials of charged further, he, find, fact Crowder, that the had when would have appellant successfully operated employment Radio Station Willis’ filing application WHBT, station, appellant’s present after throughout Harriman, (apparently) cur- point, To entire Tennessee. charge certainly proceedings affect the cred- supports did not no rent testimony. ibility regula- members rate war. his There is statute find prohibits have to tion cited a radio of the Commission would to us which *11 judges fact, credibility BROWN, Jr., that the Appellant, Rhozier T. Willis, affiant, one was not affected v. employment the termination of his America, UNITED STATES Scarbrough, conversely re- but that this Appellee. reliability lationship influenced the IRBY, Appellant, Scarbrough’s testimony. John D. v. course, inconceivable, It is that this America, UNITED STATES of permit court would the determination Appellee. by the contested of material fact issues administrative Commission—or JONES, Appellant, L. Robert solely agency —without conflicting affidavits.2 basis America, UNITED STATES of however, Appellee. believe, I do not form affidavit utilization of the Nos. mere 19890-19892. per conflicting se present statements Appeals United States Court of automatically is- a controverted creates District of Columbia Circuit. my view, the sue material fact. Argued 28, Sept. 1966. did, should, as the court 30, Decided Dec. 1966. analysis of the affidavits amake careful light of their them evaluate Rehearing Petition for En Banc effect contents and the testimony 13, Denied Feb. 1967. ques- upon the of the affiants Certiorari Denied June 1967. If the Commission. tion to be decided See 87 S.Ct. present factual statements the affidavits reason- evidence and relevant of material ably they knowledge, affiants’ within the
obviously the affiants demand that
exposed examination test to the Com- insure
cross-examination to reliability facts ex-
mission the pressed. however, hand, I On the unwilling completely hold con- am by any
flicting affidavits, reason- name appraisal result in a can
able
calling when contest between the affiants in oral hear-
confronted each other
ing, of substance meet the standard may require as
which the Commission
constituting “specific of fact” meaning U.S.C., within the Sec. Edgerton, Judge, Senior Circuit dis- (1). 309(d) sented. dissenting, I the Com- conclude legally properly, acted mission finding it, without the record before grant to intervenor- that the applicant permit to construct new public in- station would radio serve necessity.
terest,
convenience
Washington
(1950);
Bonnett,
Compare
U.S.App.D.C.
Terminal
Minor v.
Vale v.
U.S.App.D.C.
(1951).
Co.,
F.2d 10