(dissenting).
The case, in all its ramifications, demonstrates the bankruptcy of the F.C.C.’s program for assigning VHF and UHF television channels pursuant to Section 307 (b)1 of the Communications Act of 1934. It also shows what an administrative mess can result when improper influence is brought to bear on the in*388dividual members of the Commission in connection with making these assignments.2
Section 307(b) requires that the Commission grant television channels, both UHF and VHF, “among the several States and communities [so] as to provide a fair, efficient, and equitable distribution of [television] service to each of the same.” 47 U.S.C. § 307(b). This language of § 307(b) means what it says. F. C. C. v. Allentown Broadcasting Co., 349 U.S. 358, 75 S.Ct. 855, 99 L.Ed. 1147 (1955).
In its Sixth Report and Order on Television Allocations, 1 Pike & Fischer R. R. 91:601 (1952), the Commission attempted to comply with this congressional mandate by adopting a table for distribution of VHF and UHF frequencies on an intermixture3 basis, recognizing that it should disperse both VHF and UHF channels widely among states and communities and that, while more VHF channels should be assigned to the metropolitan centers, “[a]t the same time— and this is a basic element in the Commission’s assignment plan — the Commission did not believe that large cities should receive an undue share of the relatively scarce VHF channels.” Id. at 91:621. In the table of distribution which accompanied this Sixth Report and Order, Channel 2 was assigned to Springfield, Illinois. In the present rule-making proceedings, the Commission has ordered Channel 2 moved from Springfield to St. Louis, leaving Springfield, the capital city of our fourth largest state, without a VHF channel and giving St. Louis a total of five.
The reason for the Commission’s action is difficult to understand. Initially this rule-making proceeding was undertaken when the Commission was pursuing a deintermixture 4 policy which it had adopted as an interim measure while studying the advisability of abandoning the VHF band altogether and assigning only UHF channels. It was while the Commission was pursuing this policy that this court approved the Commission’s action transferring Channel 2 from Springfield to St. Louis, only to have that approval vacated by the Supreme Court because of ex parte contacts with the Commissioners by the president of Signal Hill during the proceedings which may have influenced the Commission in ordering the change. Sangamon Valley Television Corp. v. U. S., 358 U.S. 49, 79 S.Ct. 94, 3 L.Ed.2d 47 (1958).
The Commission’s repeated effort to make this change was again voided, the second time by this court, which required the Commission to start anew and make a new record. Sangamon Valley Television Corp. v. United States, 111 U.S. App.D.C. 113, 294 F.2d 742 (1961). It is on this new record that the matter is now before us. The Commission has again ordered the removal of Channel 2 from Springfield to St. Louis. It has also decided to award Channel 2 to Signal Hill in that city.
Since the last remand, the Commission has changed its policy. It has abandoned deintermixture and re-embraced inter-mixture. It has sponsored legislation5 requiring manufacturers to include a UHF band on all television receivers. In *389so doing, it advised the Congress that the proposed solution to the UHF — VHF problem involving use of only the UHF band was now rejected. The Commission also made it clear to the Congress “that it does not view deintermixture as a general or long-range solution for the television allocations problem. Quite to the contrary, the Commission has emphasized that an intermixed system utilizing both UHF and VHF channels is needed to achieve [their] long-range goal of an .effective national television system and that the all-channel receiver legislation is the key to that long-range goal.” 5. Rep. No. 1526, 87th Cong., 2d Sess., to accompany H.R.Rep. No. 8031, 87th Cong., 2d Sess., reprinted in 1 U.S.Code Cong. & Adm. News, 87th Cong., 2d Sess., p. 1877 (1962). Thus it appears that instead of deintermixture or a 70-channel UHF-only television system, the Commission has now decided upon an intermixture policy using an all-channel receiver as its solution to the UHF— VHF problem.6
Pursuant to the new policy, a moratorium has been ordered on all deintermixture proceedings pending before the Commission, with the exception of three or four, including Channel 2 in Springfield. These three or four deintermixture proceedings would continue, however, with the F.C.C. giving “weight to the congressional policies set forth in this report, and specifically, to any loss of service to the public which would result in the abandonment of VHF channels allocated to the particular communities involved in these cases.” Id. at p. 1878. This same Committee Report went on to state: “We emphasize that the aim of this measure is an intermixed television system using both 12 VHF and 70 UHF channels.” Id. at p. 1879.
Thus it appears that if this transfer of Channel 2 from Springfield to St. Louis is affirmed, in spite of the fact that the aim of Congress and the Commission’s present policy is not deintermixture but intermixture, Springfield will be one of the three or four deintermixed communities in the country. It appears to me, therefore, that the transfer of Channel 2 would be an obvious violation of the congressional policy stated in § 307 (b). Moreover, the Commission’s action, in addition to violating § 307(b), is arbitrary and capricious in that it discriminates against the three or four communities in the country marked for deintermixture. In reaching these conclusions, in view of the background of this case, the expertise of the Commission has not been a compelling consideration.
I respectfully dissent.
. 49 Stat. 1475, 47 U.S.C. § 307(b).
. For other F.C.C. messes, see WORZ, Inc. v. F. C. C., 106 U.S.App.D.C. 14, 268 F.2d 889 (1959), leave to file petition for writ of mandamus denied, Wortz, Inc., v. Prettyman, 361 U.S. 805, 80 S.Ct. 104, 4 L.Ed.2d 56 (1959) ; Massachusetts Bay Telecasters v. F. C. C., 104 U.S.App.D.C. 226, 261 F.2d 55 (1958), cert. denied, sub nom. WHDH, Inc. v. Federal Communications Commission, 366 U.S. 918, 81 S.Ct. 1094, 6 L.Ed.2d 241 (1961) ; WKAT v. Federal Communications Commission, 103 U.S.App.D.C. 324, 258 F.2d 418 (1958).
. Intermixture means assigning both VHF and UHF channels to the same area.
. Deintermixture involves limiting areas to either VHF or UHF channels.
. Act of July 10, 1962, Public Law 87-529, 76 Stat. 150.
. The Commission’s brief, at pp. 12-13, reads:
“The Commission also proposed to Congress the adoption of so-called all-channel receiver legislation, to give the Commission authority to require that all television receivers shipped in interstate commerce be capable of receiving UHF as well as VHF channels. This legislation was enacted (Public Law 87-529, July 10, 1962). When the bill was being considered, the Commission, in response to Congressional inquiry, expressed its judgment that, during the period of time needed to indicate whether the all-channel receiver would in fact achieve the Commission’s goal of a satisfactory intermixed system, it would be inappropriate to proceed with the eight new selective deintermixture proceedings initiated on July 27, 1961. However, the Commission expressly excluded from the proposed ‘moratorium’ four deintermixture proceedings which were then pending, including the Springfield Channel 2 situation, and this exclusion was accepted by Congress.’' (Emphasis supplied.)