(concurring):
I concur in Judge Tamm’s opinion for the court, but wish to highlight my understanding of the rationale for our decision.
We recognize today that the FCC may apply the Root Refining doctrine to protect the integrity of its certification procedure by depriving a party that has gained a certificate of compliance through fraud of all the benefits of that fraud. However, we hold that the Commission may not apply Root Refining in this case because its certification process has not be impaired. Since the Commission played no role in local franchising in 1966 and since the 1966 bribery played no role in the 1975 hearing for which a certificate of compliance is sought, the Commission was not the “deciding tribunal” within the meaning of Root Refining and thus lacks the power to vindicate the fraud.
Of course, the case would be otherwise if TPT had bribed the Johnstown officials in order to acquire the 1975 franchise. The Commission then would have authority to deny a certificate of compliance under its reserved powers. 47 C.F.R. § 76.31(a)(1). Or if the Commission were not to become aware of the bribery until after the certificate issued, it would then be able to apply Root Refining to vindicate the integrity of its certification process.
One point does, however, require clarification. Judge Tamm mentions the Commission’s argument that its processes had been indirectly affected because TPT benefitted in the 1975 hearing from an entrenched position directly attributable to the 1966 bribery. With respect to this argument he concludes, “we believe it would have been more properly directed to the Johnstown hearing board.” (Majority Opinion at 73 of 178 U.S.App.D.C., at 1386 of 543 F.2d.) This does not mean of course that the FCC can protect its certification procedure through the Root doctrine only if the local government is first consulted on the merits of disqualifying the defrauding party. Rather, it reflects our basic holding that the Commission’s processes were not impaired in this case.
*75As a factual matter, the Commission is probably correct that TPT’s position before the Johnstown citizenry was enhanced by its past illegality. TPT had become well known in Johnstown after having provided years of service, and it might not have been able to acquire this measure of recognition had it not bribed the local officials in 1966. However, by establishing that TPT was in a stronger position as a result of its bribery, the Commission does not automatically acquire authority to deny TPT a certificate of compliance based on the 1975 hearing. Since the 1975 hearing was not itself tainted by fraud or bribery and afforded the public due process, the certification process was not impaired and under its own rules the Commission was obligated to issue a certificate of compliance. It lacked the power to overrule Johnstown’s decision on the merits but could only, as Judge Tamm states suggest to Johnstown that applicants such as TPT ought not be successful.
The Commission has in this case attempted to avoid the impact of rules it has itself promulgated. Perhaps the Commission was unwise in delegating away the power to pass on the qualifications of cable television systems. But it has done so, and the City of Johnstown was well within its rights in determining that it preferred continued service from a repentant sinner instead of service supplied by fifty bishops or no service at all.