(concurring) .
I think the language used by the Supreme Court in United States v. Storer Broadcasting Co., 351 U.S. 192 at 205, 76 S.Ct. 763 at 771, 100 L.Ed. 1081 (1956), and National Broadcasting Co. V. United States, 319 U.S. 190 at 225, 63 S.Ct. 997 at 1013, 87 L.Ed. 1344 (1943), compels the result reached, as expressed in the following passage in-Judge Edgerton’s opinion:
“We remand the cases so that the Commission may decide whether WQXR alleges ‘reasons, sufficient if true, to justify a change or waiver’ of the Commission’s legislative presumption in favor of a new adjacent channel service as against an existing service beyond the 0.5 mv/m contour. Allegations of injury to WQXR’s listeners must be considered as bearing on the question of the public interest or lack of it in granting the applications of Patch-ogue and Grossco. If the Commission concludes that WQXR’s specific factual allegations, construed in the light of the affidavits, testimony, and exhibits, if true, are sufficient to preclude grant of either application, it must offer WQXR an opportunity to prove the allegations.”
If the Commission grants a hearing, the ensuing delay will no doubt be substantial, and the expenses probably such as to be a heavy burden to Patchogue and Grossco, which evidently lack the *803financial resources of WQXR. Commission decides .against WQXR, without a hearing, a further appeal to this court by WQXR would seem probable. If the
As a practical matter, then, under our ruling, an established and powerful station can delay the grant of new applications for apparently available frequencies by setting up a barrage of allegations as to why the established station should be protected at distant points well beyond its normally protected contour, because of the “unique service” it renders. Allegations of this sort are not hard to make — as witness the advertising pages of any newspaper or magazine. The delays which can thus be produced by a large and well-financed station can readily be imagined. Patch-ogue’s application was filed in 1957, Grossco’s in 1959. The end is not yet in sight. The record of the proceedings in both cases, as filed in this court, totals 473 printed pages — largely the result of action taken by appellant Interstate (WQXR). Other cases involving related or similar appeals by Interstate have previously come to this court.1 Granting Interstate’s right to protect itself, its advertising revenues, and its listeners, in every legitimate way, and assuming that its assertions of superior programming are made in complete good faith, one must admit, I think, that the Commission’s intention that new service to the public should be favored — an intention which is certainly reasonable — has thus far been effectively thwarted in this case.
The history of the problem is instructive. Prior to 1957, the Commission’s rules (at Section 3.182(c) of the then text) provided that a station rendering service beyond its normally protected contour could obtain protection against new applications, on a case-by-case basis, where its general program service was unlike any being supplied or to be supplied by any other station in the area. In 1957, the Commission held rule-making proceedings on the subject, in which our appellant Interstate participated, and ultimately decided to delete the rule just described. The Commission said:
“The ‘unique service’ rule has served little or no useful purpose since its adoption. Its provisions are too vague and indefinite to be of any assistance in the filing and processing of applications for new and improved standard broadcast facilities and have prompted much uncertainty as to the protection to be afforded to and by standard broadcast stations. Nor would making the rule more specific resolve the difficulty since we are not aware of any satisfactory criteria for determining what constitutes the ‘same general program service’. We are concerned, furthermore, by the fact that the rule may discourage applicants and prospective applicants for new and improved AM facilities by threatening expensive, time consuming hearings and may tend to persuade applicants to alter their proposals to protect established stations despite the fact that the watered-down proposals may render less service. For these reasons we believe that the ‘unique service’ rule is an unsatisfactory allocation tool and should be dispensed with. We believe that this amendment will encourage the establishment of more uniform, fixed allocation rules, thereby fostering a more effective and efficient AM broadcast service throughout the country.” 16 Pike & Fischer R.R. 1501 at 1504 (1957).
Our decision today may in fact revive in large part the old rule just described, which the Commission for good and valid reasons discarded. Although our decision is compelled by the rulings of the Supreme Court in Storer and Na*804tional Broadcasting, those rulings also show, in my view, that on remand the Commission can and should take into account the reasons which led it to abandon the former rule.
. Interstate Broadcasting Co., Inc. v. Federal Communications Commission, 109 U.S.App.D.C. 190, 285 F.2d 270 (1960); Interstate Broadcasting Co., Inc. v. United States, 109 U.S.App.D.C. 255, 286 F.2d 539 (1960); Interstate Broadcasting Co., Inc. v. United States, 109 U.S.App.D.C. 260, 286 F.2d 544 (1960).