dissenting:
I am in accord with the premises my colleagues use in deciding this case,1 but I find it impossible to apply them to the facts and come to the same conclusion. I agree that the court’s focus should be “solely on whether the FCC’s determination that there were no ‘substantial and material questions of fact’ flowed logically from the evidence in the record.” Majority Opinion at 972. I further agree that a full hearing would be necessary if a substantial and material question of fact were at issue in this case. But I respectfully disagree with the majority that any substantial questions of fact remain in dispute in this case that would require a full hearing to resolve. Only the ultimate determination as to the applicants’ intent to serve Salt Lake City rather than Ogden is disputed by petitioners, and that involves only “inferences to be drawn from facts already known, [or] the legal conclusions to be derived from those facts.” Anti-Defamation League v. FCC, 403 F.2d 169, 171 (1968), cert. denied, 394 U.S. 930, 89 S.Ct. 1190, 22 L.Ed.2d 459 (1969). In such cases the Commission has clear and settled authority to draw such inferences without a full hearing. Id.; National Association for Better Broadcasting v. FCC, 591 F.2d 812, 815 (D.C.Cir.1978); Alianza Federal De Mercedes v. FCC, 539 F.2d 732, 736 (D.C.Cir.1976); Columbus Broadcasting Coalition v. FCC, 505 F.2d 320, 324 (D.C.Cir.1974); Stone v. FCC, 466 F.2d 316, 323 (D.C.Cir.1972); Marsh v. FCC, 436 F.2d 132, 135-36 (D.C.Cir.1970). It is only when the underlying facts themselves are material, substantial, and in actual dispute, that a full hearing is required by the statute in question here, 47 U.S.C. § 309.
It is true, of course, that placement of the two Ogden radio stations’ antennas at a site close to Salt Lake City (Farnsworth Peak) could give rise to a legitimate question of whether those stations intend to provide local broadcast service to Salt Lake City rather than Ogden. If they, did, this would circumvent the Commission’s “table of assignment” rule and violate the FCC’s de facto reallocation and Berwick doctrines which seek to prevent a station from avoiding its obligation to serve its assigned community of license.
However, a station’s application to locate its antenna closer to a larger neighboring community need not invariably give rise to such suspicions. See Great Trails Broadcasting Corp. (WJAI-FM), 59 FCC2d 916, 918-19 (1976) (no hearing needed on de facto reallocation issue despite the fact that station’s proposal would place its antenna closer to Dayton (pop. 243,000) than to its designated community of license, Eaton (pop. 6,000)). See also Central Alabama Broadcasters, Inc. (WSLA-TV), 68 FCC2d 1339, 1340 (1978) (no hearing needed on relocation which would place antenna two miles closer to Montgomery than to Selma, the smaller city of license). This is particularly so where the station has a valid justification for wishing to place its antenna at the new location.
In this case the Commission found that placement of the Ogden stations’ antenna at Farnsworth Peak would improve their reception in Ogden, while enabling them to conform more closely to Commission rules *27which put a premium on the highest elevation and lowest power output consistent with adequate service to the area.2 The majority sidesteps this crucial finding by stating that, in its opinion, the evidence which the Commission relied upon indicating the existence of a “severe problem of multipath interference” 3 with the radio signal emanating from KDAB’s previous site near Ogden (Little Mountain) was “weak,” and that the “uniqueness” of the new site at Farnsworth Peak was “hotly disputed.” Majority Opinion at 973-974. There is, however, absolutely no evidence in the record contradicting KDAB’s field engineering statement that the multipath interference problem at the Little Mountain antenna site was a substantial one.4 The field statement found “obvious reflections ... off the top and canyon of the mountains.” After explaining the technical reasons why and how this occurred, the report concluded:
There is no doubt at all that the problem facing you is one of propagation — not antenna. After your signal leaves the antenna, it passes over Ogden, goes further east, hits the mountains, and is reflected back over Ogden. These reflections were measured as strong as minus 6 DB, which means 25% of the power was coming from the mountains! Therein lies your problem.
Field Engineering Statement, J.A. at 161 (emphasis supplied).
The majority expresses concern regarding the “unverified” character of four sworn statements, each of which affirmed the existence of the multipath problem, and which together represented all the evidence in the record on the multipath interference issue. Majority Opinion at n.115; see also id. at 959-960. The majority also speculates as to whether or not the qualifications of the affiants were adequate, and whether the testing procedures and equipment were appropriate for the task. Id. at n.115. I do not think, however, that this court possesses the expertise to secondguess the Commission on so technical a matter as its finding that multipath interference existed in the signals of a FM radio station in Utah, when that finding is uncontradicted by any evidence in the record. The record in fact amply supports the Commission’s finding that a multipath problem at Little Mountain did exist, and that radio service to Ogden would be improved by moving to Farnsworth Peak.5 So long as the evidence in the record supporting the Commission’s finding is credible and undisputed, we should leave its finding about the benefits of the move to Ogden listeners alone. And given a legitimate justification for the move — to improve service in Ogden — we *28have no reason on this record to tell the Commission that it had to hold a formal hearing to search for some ulterior motive possibly lurking behind the move.
The majority opinion’s suspicion that KDAB and KZAN really intend to switch their service from Ogden to Salt Lake City also appears to underestimate their ability to broadcast effectively to Salt Lake City even from the old Little Mountain site. The majority stresses that since the Ogden stations can place “only a relatively low quality ‘primary service’ signal” (at least 60 dbu, or lmV/m) over Salt Lake City from the old Little Mountain site, but can place a “high quality ‘city grade’ signal” (at least 70 dbu, or 3.16mV/m) over Salt Lake City from the new Farnsworth Peak site, this must be strong evidence of an attempt to penetrate the Salt Lake market. Majority Opinion at 11. The majority fails to tell us, however, that the “primary service area” which would include Salt Lake City from Little Mountain is defined as that “area within which radio . . . reception is not normally subject to objectionable interference or fading.” R. Graff, Modern Dictionary of Electronics 558 (5th ed. 1977). Thus, even if appellants succeeded in forcing the Ogden stations to move back to Little Mountain, those stations would still be sending to Salt Lake City listeners reception “not normally subject to objectionable interference or fading.” Id. If Salt Lake residents could receive interference-free reception from Little Mountain, it is clearly unwarranted to assume, as the majority opinion apparently does, that moving from Little Mountain to Farnsworth Peak is necessarily evidence of intent to relocate into the Salt Lake market.
Even more significant is the fact — undisputed by the majority — that “the [table of assignments] allocation of a Class C channel to Ogden contemplated use of a maximum facility with 100 kW effective radiated power at an antenna height of 2,000 feet above average terrain. Such a facility, even if located north of Ogden, would encompass all of Salt Lake within its [city grade] contour.” D & B Broadcasting Co., Inc., supra, 67 FCC2d at 573 n.8 (emphasis supplied). See generally Majority Opinion at 964. Thus the very table of assignments which the Berwick/de facto reallocation doctrines are designed to protect assumed that Class C Ogden stations like KDAB and KZAN might provide a “high quality ‘city grade’ signal” to Salt Lake City. In light of these facts, I must agree with the Commission that “the simple fact that the KDAB proposal will provide primary city grade service to Salt Lake City is not a valid ground for objection.” 67 FCC2d at 573 n.8. Cf. Majority Opinion at 7.
In order to confirm the absence of any material factual dispute concerning the applicants’ intent which would necessitate a full hearing, I will — for illustrative purposes — turn to the five factors which, the majority opinion states, cast substantial doubt upon their motives. Of the five, only two could even conceivably involve a factual dispute, and even if they did, their resolution would not be particularly relevant to the outcome here. The remaining three concern inferences to be drawn from facts already known or the legal conclusions to be derived from those facts, and hence do not require a formal hearing to resolve. See cases cited at p. 956 supra.
The first factor concerns the particular ratio of signal strengths expected in Salt Lake City and Ogden, which the majority states “cannot be found in the record.” Majority Opinion at 978, see also id. at 973. The majority speculates, however, that “physical proximity alone . . . suggests that the signal over Salt Lake will be considerably stronger than that in Ogden.” Id. at 973. Even if this is true, I question the relevance of .that fact where, as here, it is acknowledged that the required city-grade signal will continue to be provided the city of license, Ogden. None of the petitioners here suggested that ascertaining this particular ratio was necessary or even helpful in developing a record for this case. Cf. Santa Fe Television, Inc., 18 FCC2d 741, 742 (1969) (listing of comparative signal strengths of a television broadcaster in allegations made by petitioner who wished a *29hearing on a de facto reallocation issue). And the Commission has never before held that determining the signal ratio was important enough to require a full hearing. On the contrary, the Commission’s focus is usually on whether the proposal would continue to provide city-grade service to the original community, or whether a loss area would be created. Great Trails Broadcasting Corp. (WJAI-FM), 59 FCC2d 916, 919 (1976).6 Therefore the Commission stated in this case, “the fact that the proposed change will give KDAB a stronger signal in Salt Lake City violates no Commission Rule, so long as Ogden receives the requisite [city-grade] service.” D & B Broadcasting Co., Inc. (KDAB), supra, 67 FCC2d at 572. In short, acknowledging that Salt Lake City will receive a somewhat stronger city-grade signal than Ogden, it is dubious at best that knowing the particular ratio of the two signals will help in determining which audience the broadcasters intend to woo.
But even if the difference in city-grade signals was a material factor in this regard, I think it unlikely that determining the ratio of signal strengths would invariably require a full evidentiary hearing. The Commission surely has other means to obtain that data if it needs it, and “[i]f more information is required, the method by which it is to be gathered ‘is, of course, a matter for the Commission.’ ” Bilingual Bicultural Coalition v. FCC, 595 F.2d 621, 630 (D.C.Cir.1978) (en banc). See generally United States v. FCC, No. 77-1249, slip op. at 39 n. 87, 40 (D.C.Cir., Mar. 7, 1980) (en banc) (“The substantiality and materiality of purported issues of fact, and the need for further information, are issues to be evaluated in the first instance by the Commission in the light of its public interest responsibility. This courts oversight role is quite limited.” “The sad truth about . . . evidentiary inquiries is that they take time; and time often works to the advantage of one party over another... . For that reason this court has held [that the] ‘decision of whether or not hearings are necessary or desirable is a matter in which the Commission’s discretion and expertise is paramount.’ ”).
The only other factor in the majority’s calculus susceptible to any factual controversy relates to the predicted “loss area” resulting from the move to Farnsworth Peak. See Majority Opinion at 20, 24. The majority expresses concern about two types of loss: loss of city-grade service to a portion of Ogden; and loss of primary service to some 10,000 people in Box Elder County, north of Ogden. As to the former, we have only an allegation, submitted so late in the proceeding as to be in violation of the Commission’s procedural rules,7 that .4 square mile of Ogden would receive a 69 dbu signal instead of the 70 dbu required for city-grade service. See D & B Broadcasting Co., Inc. (KDAB), supra, 69 FCC2d at 1121. The Commission, nonetheless, did address the issue and concluded that “the alleged shortfall is . . . de minim-is." Id. I agree; but more important, I fail to see how a hearing would change that conclusion which, we must assume, is based on the Commission’s expert judgment.
As to the alleged loss of primary service to some 10,000 residents in Box Elder County, no dispute exists here either over the fact of the loss, or its size and location. The Commission’s finding that two stations, KQPD-FM and KSL-FM, “provide service to a substantial part of the [predicted] loss *30area” is not contested. D & B Broadcasting Co., Inc. (KDAB), supra, 67 FCC2d at 573 n.10; Majority Opinion at n.lll. The only possible factual controversy I can find surrounds the Commission’s finding that the entire loss area is within the predicted contours of both a third and a fourth station, KBLW-FM and KVWJ-FM. The Salt Lake City stations argued, without supporting affidavits, that the Wasatch Mountains may block the signal of these two stations and therefore they “may not provide” service to the entire loss area. However, the possibility of less than total coverage of the predicted loss area by the third and fourth stations does not loom large enough in this proceeding to require a hearing as to the precise coverage of these stations, particularly in light of the uncontested fact that at least two stations do provide service to a substantial part of the predicted loss area. “Contrary allegations and affidavits which create some possibly unresolved factual issue do not invariably necessitate an evidentiary hearing. ...” Broadcast Enterprises, Inc. v. FCC, 390 F.2d 483, 485 (D.C.Cir.1968).
The three additional factors which are cited as suggesting the need for a hearing do not, on their face, involve any disputed factual questions. The first relates to the population ratio of Ogden to Salt Lake City.8 The second concerns the ratio of distances between the transmitter and Ogden, and the transmitter and Salt Lake City.9 The third is whether the new site at Farnsworth Peak is already in use by stations assigned to Salt Lake City.10 All three of these “factors” involve facts that have already been ascertained and are undisputed. The only issue over which dispute exists is the inference to be drawn from these facts; therefore a hearing on them is not necessary. See p. 956 supra.
Finally, the majority asserts, almost in passing and without any elaboration, that a “substantial [question] of fact remain[s] to be answered . .. [:] whether the programming of these stations will adequately serve Ogden’s needs if the stations are allowed to use Farnsworth Peak.” Majority Opinion at 977-978. I am frankly at a loss to discern how or why the majority finds this to be a substantial and unanswered question on this record. It is uncontested that the stations’ broadcast studios will remain in Ogden and that there will be no sharing of programming with Salt Lake stations. Most important, there is no evidence that the stations do not intend to provide programming directed specifically to the needs of Ogden.11 These factors are highly significant in determining whether a Berwick/de facto reallocation issue really exists,12 and *31each of them clearly weighs in favor of the conclusion that from Farnsworth Peak these stations will continue to direct their programming efforts to Ogden rather than Salt Lake City. The Commission so found,13 and I see no evidence inconsistent with that finding.
CONCLUSION
I cannot agree that the Commission acted arbitrarily or capriciously in denying a hearing in this case. There were, in my opinion, no material, substantial questions of fact left unanswered that required a hearing to resolve. In this case the basic issue of the applicants’ intent to continue to serve the Ogden community as their primary audience was clearly one which could be decided upon inferences drawn from known facts. Some might disagree with the Commission’s decision, but that is an altogether separate issue from holding that it was required to hold a hearing before drawing those inferences. For my own part, I believe that on this record the Commission acted entirely reasonably in finding that the change in antenna location was an effort to improve coverage to the stations’ primary Ogden market, not an attempt to corner a new Salt Lake City market in defiance of the Commission’s Berwick/de facto reallocation policy. The Commission did not need to hold a hearing to so decide. I therefore respectfully dissent.*
. In particular, I fully concur with the court’s declaration that
it is the Commission — not this court — to whom Congress gave the authority to determine in the first instance whether issuance of construction permits and licenses meets the various requirements set down by statute, FCC regulations, and precedent; and it is the Commission — not this court — to whom it gave the authority in the first instance to decide whether it will make that determination only after a full hearing. Majority Opinion at 18. I also agree with the court that its “factor” analysis should not be read as foreclosing any future decisions by the Commission concerning when full hearings are appropriate, even including decisions which reject the “factor” analysis outright, so long as those decisions are “accompanied by a reasonable explanation in harmony with the Commission’s statutory obligations to hold hearings whenever a ‘substantial and material’ question of fact remains in dispute.” Id. at 972.
. D & B Broadcasting Co., Inc. (KDAB), 67 FCC2d 570, 573 (1978) (“The unusual terrain of northern Utah, which makes the [Farnsworth Peak] site particularly advantageous, is a key element in our decision.... ”); D & B Broadcasting Co., Inc. (KDAB), 69 FCC2d 1116, 1121 n.14 (1978); see Sworn Affidavit of Robert L. Chamberlin, Chief Engineer, Statement of Power Savings, Joint Appendix (hereinafter J.A.) at 309 (estimated savings of over 40% when compared to the old Little Mountain site); 47 C.F.R. § 73.315(b) (1979) (“In providing the best degree of service to an area, it is usually preferable to use a high antenna rather than a lower antenna with increased transmitter power.”)
. D & B Broadcasting Co., Inc. (KDAB), supra, 67 FCC2d at 571-72.
. In fact the field statement was supported by a number of affidavits, including those from a chief engineer and two licensed radio-telephone operators. See J.A. at 305-08. See also Affidavit of Steve Lawson, Executive Vice President, Ogden Area Chamber of Commerce, J.A. at 315-16 (“Salt Lake signals ... provide much more consistent coverage [in Ogden].... The fact is that KDAB must operate from the Oquirrhs [f. e., Farnsworth Peak] to compete in its own market. . .. KDAB [presently] has the poorest signal in our community....”) (emphasis supplied).
.Ironically, before the move to Farnsworth Peak, Salt Lake City’s FM stations were providing better reception to Ogden than KDAB, the Ogden station, was providing to its own city of license! While the Salt Lake City stations in this litigation now challenge KDAB’s ability to be heard clearly in their hometown, they are quite content to be heard more clearly than the Ogden station in the latter’s hometown. See D & B Broadcasting Co., Inc. (KDAB), 67 FCC2d, supra, at 572. Competing over the other fellow’s home turf is always more fun.
. See also Hall Broadcasting Co., Inc. (WIYDFM), 44 RR2d 637, 640-41 (1978) (continuation of city-grade service to original community, and minimal loss area, are key factors in denying hearing on Berwick/de facto reallocation issues) (Commission finds that “[t]he crucial fact here is that operating as proposed [applicant] will continue to provide Palatka [the community of license] with the requisite [city-grade] service, and not that a portion of Jacksonville [a nearby larger city] will receive such service. Nor is it dispositive that a part of Jacksonville may receive a signal of greater intensity than Palatka." [Emphasis supplied]); Central Alabama Broadcasters, Inc. (WSLATV), 68 FCC2d 1339, 1340 (1978) (“De facto reallocation requires that there be an element of removal of the channel from one city and an effective use in another city; there can be no reallocation if either element is missing.”).
. See Majority Opinion at n.40.
. See id. at 972^
. See id. at 973.
. See id. at 973. '
. See D & B Broadcasting Co., Inc. (KDAB), supra, 67 FCC2d at 572; cf. Affidavit of Steve Lawson, Executive Vice President, Ogden Area Chamber of Commerce, J.A. at 315-16 (“KDAB ... serves community interests better than any of the other Ogden stations.”).
. See, e. g., Rhode Island Television Corp. v. FCC, 320 F.2d 762, 766 (D.C.Cir. 1963), quoting with approval the FCC’s decision in favor of television station’s request to move its antenna closer to Providence, a nearby city larger than New Bedford, the city of license:
“The mere fact that as a result of the proposed modification WTEV will improve its signal to the Providence area from Grade B to Grade A does not warrant [the conclusion that there has been a channel reassignment]. In fact WTEV will continue to be a New Bedford station, will maintain its main studio in New Bedford*, will place a principal city signal over that community and will be primarily responsible for providing for the needs of that community under the Rules. Accordingly, grant of the proposal will not change the channel assignment.. ..
“ * The permittee does not propose to establish studio facilities in Providence.”
See also Community Telecasting Co. v. FCC, 255 F.2d 891, 893 (D.C.Cir. 1958) (“The Commission has frequently ruled that a station is identified by the place where its studios are kept, not the location of its transmitter or antenna.”); General Media Television, Inc., 27 FCC2d 861, 863 (1971) (“A de facto reallocation issue does not arise merely because a licensee proposes an extension of a station’s service area, and in some circumstances, the retention of the station’s main studio in its community of license may itself constitute sufficient contact with the community.... ”).
The location of the studio is frequently mentioned along with evidence on local program*31ming to determine whether a Berwick/de facto reallocation issue really exists. See, e. g., Garlund, Gareth & Anna W. (KIQO), 68 FCC2d 1382, 1384 (1978); General Media Television, Inc., 27 FCC2d 861, 863 (1971); Streets Electronics, Inc. (KGEO-TV), 20 FCC 1121, 1169 (1956). The importance of the local programming factor cannot be ignored, since it goes to the heart of the statutory policy governing the distribution of radio licenses. See En Banc Programming Inquiry, 44 FCC 2303, 2311 (1960):
It is generally recognized that programming is of the essence of radio service. Section 307(b) of the Communications Act requires the Commission to “make such distribution of licenses . .. among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each of the same.” Under this section the Commission has consistently licensed stations with the end objective of either providing new or additional programming service to a community, area or state, or of providing a new or additional “outlet” for broadcasting from a community, area, or state.... [Appropriate attention to local live programming is required.
(emphasis in original).
. D & B Broadcasting Co., Inc. (KDAB), supra, 67 FCC2d at 572.
After this dissenting opinion was filed, the majority opinion was revised so that it no longer requires a full evidentiary hearing on remand. Despite this revision, of which I approve, the gist of the dissent still seems relevant to any proceedings on remand.