This сase concerns the mutually exclusive applications of Julie P. Miner and Albert L. Crain for permits to construct a new radio station in St. George, Utah. The Federal Communications Commission (FCC) granted Crain’s application and denied Miner’s. We reverse.
Appellant Julie P. Miner is the licensee of standard broadcast (i. e., AM) radio station KDXU in St. George, Utah, which she and her husband have operated since 1968. They are natives of the area and have lived in St. George since 1968. St. George has a population of 7,097, and is the largest com *153 munity within Washington County, which has a population of 13,669. KDXU operates at a power of 1 kilowatt daytime and 250 watts nighttime on a frequency of 1450 kilowatts. In 1973 Miner also applied for and received a license to operate KDXUFM as a 3 kilowatt FM radio station in St. George on a frequency not then in use by any broadcaster.
On November 28, 1973 Miner filed with the FCC an application for a construction permit to improve the facilities of KDXU by moving to the frequency of 890 kilohertz and increasing power to 10 kilowatts, day and night.
On January 29,1974 Albert L. Crain filed a competing application for the construction of a new AM radio station in St. George on the frequency of 890 kilohertz specifying daytime power of 50 kilowatts and nighttime power of 10 kilowatts. Crain is a resident of Colliersville, Tennessee, and licensee of station WMSO, Colliersville, and KBSN, Crane, Texas. Crain stated that he proposed to move to Colliersville and devote himself full time to the construction and operation of the new station, but it appeared that in previous applications he had also committed himself to full-time management of WMSO and to devote “as much time as practicable” to the operation of KBSN.
The Miner and Crain applications were mutually exclusive because both Miner and Crain applied for the same frequency in the same community, and they were designated for a comparative hearing, pursuant to 47 U.S.C. §§ 309(a) & (e) (1976) and the Ash-hacker doctrine, 1 by order of the FCC dated December 13, 1974.
An evidentiary hearing was held on May 20-22, 1975, and on November 13, 1975 the Administrative Law Judge (ALJ) released his Initial Decision resolving the comparative issue of a construction permit for the frequency of 890 kilohertz in Crain’s favor. Thе AU accorded Crain a strong preference on the factor of “diversification” because, given that Miner operated the only AM and FM broadcast stations in St. George, “at the threshold, a grant of the Crain application would provide a choice of programs and service from separately owned stations for the first time; the ‘planned’ release of the presently Miner-occupied frequency, upon favorable grant, here notwithstanding.” (J.A. at 50) In response to Miner’s argument that the grant of her application would not hinder the policy of diffusing control over mass media because another applicant could operate a radio station on the vacated frequency of 1450 kilohertz, the ALJ stated:
[A]ccepting the Miner premise of the modest economic, demographic and other proportions of the St. George community, one might question the business prudence of one having an active interest in a released frequency, where the competitor for the modest advertising potential in that community enjoys higher power and audience reach. But even were the Miner thesis persuasive — which it is not — the overriding consideration, particularly as here in a small community, is the potential for a new voice or mouthpiecе of the community, diverse, perhaps even antagonistic, to what has been the custom and experience, [emphasis in original]
Id. at 51. In the ALJ’s judgment Crain was also preferred on the issue of “efficiency” or “coverage” because his “proposal would cover 28,873 more square miles than would Miner’s and serve 34,205 more people.” Id. at 49. The ALJ noted that “[although Crain’s exclusive area is at no point less than 90 miles from St. George, it includes both unserved and underserved populations.” Id.
The ALJ acknowledged that Miner was preferred on the factor of “integration”:
The evidence under the criteria of “Full-time participation in station operation by owners” is persuasive that a preference would run to Miner, as it would appear that Crain would be required to divide his time in the operations of his station KBSN, and the contested facility here .... Julie P. Minеr, as General *154 Manager/Owner, on the other hand, would be able to devote her full time to the proposed facility whether that would encompass the proposed facility and the presently owned and operated KDXUFM, a combined operation fairly commonplace and accepted, if not encouraged by the Commission.
Subdivisional attributes of “Full-time participation in station operations by owners” are local residence, broadcast experience and participation in local civic affairs.... As to Julie P. Miner, a clear preference would extend by virtue of long residence in St. George, her greater familiarity with local needs and interests by that residence and reinforced by her and her family’s participation in local affairs, albeit heavily oriented to church-related matters.... But the prеference to be accorded Miner here — while clear — is but of minor significance, if only for the reason that too great emphasis on local residence and area familiarity might dampen the interests of newcomers either to broadcasting or to a given community.
Id. at 52-53.
The ALJ found that 27 broadcast stations place primary signals over St. George and the proposed service area, that several newsрapers, including two Salt Lake daily newspapers, are circulated there, and that St. George’s citizens receive the signals of four television stations. (Finding 102, J.A. 34)
The ALJ concluded that any preference for Miner was outweighed by the “new voice” that Crain would bring to St. George, and thus “on diversification alone, Crain must win the day.” Id. at 52. While finding “both applicants fully qualified to become licensees under the noncomparative or basic qualifying issues,” the ALJ held that “the public interest is best served by awarding the contested franchise to Crain. . .. ” Id. at 53.
Acting on exceptions filed by the parties and after
de novo
review of the record, the Commission’s Review Board upheld the determination of the ALJ and granted Crain’s application for a new standard broadcast station in a decision released on July 19, 1976.
We have also considered Miner’s argument that . . . her application should be awarded merit since its sole principal is a woman. While we agree that minority ownership of an applicant — be it black or female — may be a consideration which is relevant to a choice among applicants where it affords a broader community representation, a grant of Miner’s application does not afford such a benefit.... [W]e cannot presume that she will cease operation of KDXU if a grant is made to Crain. As a consequence, the extent of female ownership and participation in broadcasting will not be altered in St. George, whichever applicant receives a grant, and no merit can be awarded to Miner on the basis urged.
* * * * * *
Miner urges that the Initial Decision inconsistently assumed that Minеr would continue the present operation of Station KDXU in the face of a grant to Crain of a facility with greater power, but that a new applicant would not be interested in using the frequency to be vacated by KDXU if the Miner application were granted. We do not see these inconsistent assumptions in the Initial Decision, but in any event we think no significant presumptions or findings are warranted on these matters. Thus, the present fact is that Miner is operating Station KDXU, and the record furnishes no basis for a presumption or a finding of a change in *155 that circumstance. So too, the record furnishes no basis for a presumption or a finding as to the future use of the KDXU frequency if it were vacated.... We might add that if presumptions were to be indulged in, it would seem more likely that an existing operation would be conducted in the face of competition from a higher powered station than that a newcomer would attempt to institute a new service in the face of such competition.
Id. at 899-900, 901 n.25. Therefore the Review Board held that “the substantial difference between the applicants on diversification, together with Crain’s coverage advantage, is more significant than Miner’s slight preference on integration .... Crain is .. . clearly to be preferred on the comparative critеria.” Id. at 899.
By Order released on March 29, 1978 the FCC denied without opinion Miner’s application for review of the Review Board’s Decision, which consequently has the same force and effect as a decision by the Commission. See 47 U.S.C. §§ 155(d)(3) & (5) (1976). Miner thereafter petitioned for reconsideration, asserting that the FCC had not afforded her a full and fair comparative hearing and offering for the first time to accept a grant of her AM station aрplication subject to the condition that she attempted to dispose of her FM station. The Commission dismissed the petition for reconsideration by Order released on August 18, 1978 on the grounds that no new evidence “of decisional significance” was proffered and Miner’s offer to dispose of KDXU — FM came too late to improve her comparative position. This appeal by Miner, pursuant to 47 U.S.C. § 402(b)(1) (1976), followed.
In
Fidelity Television, Inc. v. FCC,
[O]ur function is, as has often been repeated, a limited one. It is necessary only that we satisfy ourselves that the agency acted within the bounds of its statutory and constitutional authority, that it has followed its own procedural rules and regulations, that its findings of fact are reasonably articulated and based on substantial evidence in the record as a whole, that its conclusions do not deviate greatly from past pronouncements without sufficient explanation, and that in general it has engaged in reasoned decision-making. ... [I]t is not our judicial job to direct the Commission on how to run the comparative hearing process, beyond assuring that the administrative process respects the rights of the public and of competitors assured under the Communications Act and the Ashbacker doctrine, and that it produces rational decisions based on factors generally known in advance, [footnotes omitted]
See also Greater Boston Television Corp. v. FCC,
In
Valdosta Broadcasting Co.,
The Valdosta Broadcasting Co.’s application proposes the construction and operation of a new broadcast station which would provide new and additional service to the city of Valdosta as well as serve *156 the rural areas proposed to be served by WGOV [which proposes a change of its facilities from a local class IV station to a regional or class III station]. Taken alone, the consideration of the establishment of an additional and competitive broadcast service would be persuasive of a grant to the Valdosta Broadcasting Co. However, we cannot accept this factor as controlling. Otherwise, an existing station seeking to improve its coverage by a change in frequency and increase in power would always be barred by a qualified applicant proposing to construct а new station on the operating assignment requested by the existing station.
Accord, The Monocacy Broadcasting Co.,
In
Policy Statement on Comparative Broadcast Hearings,
Appellant Miner argues that she “was the superior applicant, due in large part to her long familiarity with the St. George area and demonstrated total commitment and dedication to the operations of KDXU and [KDXU-FM]” and that she was denied a full and fair comparative hearing because the Commission penalized her for being the incumbent licensee of KDXU and arbitrarily and capriciоusly assigned her to that inferior facility for which she did not apply. (Br. for Appellant at 16-18) Miner contends that in denying her application, the FCC, without supporting evidence, “necessarily made the finding that she would and could continue to operate on [a] frequency [of 1450 kilohertz] in the small community of St. George in the face of competition with fifty times as much power.” Id. at 28.
In its Proposed Findings in this case, the Commission’s Broadcast Bureau statеd that:
Local transmission service to St. George is presently provided by Station KDXU and KDXU-FM, both licensed to Miner. However, although Crain would add a local outlet and Miner would not, this is offset by the fact that KDXU’s existing frequency would become available to a qualified applicant. [Footnote omitted]
(J.A. at 125 — 26) Citing the
Valdosta
doctrine, the Broadcast Bureau noted that “[t]he fact that a grant to Crain would provide -St. George with a second local transmission service should not be construed as meriting a comparative advantage in light of past Commission policy.”
Id.
at 125 n.1. However the ALJ stated that the
Valdosta
and
Monocacy
cases “are in the vintage years of 1946 and 1960 while the controlling Commission policy is
Policy Statement on Comparative Broadcast Hearings,
In the first place, Valdosta does not mandate a grant to the existing station in this situation, but rather holds that a *157 grant to the newcomer is not necessarily mandated whenever there will be added competition, and that there should be a full consideration of the comparative merits.... This would necessarily be so, because the bare consideration of an existing station’s desire to improve its facilities would be empty of any public interest content in the absence of other considerations indicating some public benefit in that grant as opposed to a grant to а competing applicant. Furthermore, the Commission’s subsequent enunciation of its. views in the 1965 Policy Statement on Comparative Broadcast Hearings leaves no room for doubt that current Commission policy on the various comparative factors is different in emphasis. Thus, while Valdosta and its progeny are devoid of any substantial consideration of the public interest significance of diversifying control of broadcast interests, the 1965 Policy Statement and subsequent cases give this factor a strong independent signifiсance . . .
Taking due account of the Valdosta approach within the bounds of the Commission’s current policy, we conclude that Crain’s preferences, diminished slightly as they are by the preferences awarded to Miner, remain determinative.
Therefore, as is evidenced by the Broadcast Bureau’s Proposed Findings, this case, as well as
Community Broadcasting Co., Inc.,
More fundamentally however the Commission erred in this case when it engaged in assumptions instead of making findings of fact that are “reasonably articulated and based on substantial evidence in the record as a whole.”
Fidelity Television, Inc. v. FCC, supra,
If, as the 1965 Policy Statement directs, “diversification of control of the media of mass communications” is “a factor of primary importance” in comparative broadcast hearings (
The key to the ALJ’s Initial Decision and the Review Board’s Decision is their assertion that Crain will bring a “new voice” to St. George and “will provide the only competition to a two station local monopoly.” J.A. at 51;
For the foregoing reasons the Commission’s decisions in
Julie P. Miner,
So ordered.
Notes
. See
Ashbacker Radio Corp. v. FCC,