These are appeals from a decision and order of the Federal Communications Commission, in which the Commission awarded a construction permit for a television broadcast station on Channel 13 at Rochester, New York. There are eight appellants in as many appeals, consolidated. The appeals are from a Decision1 and a Memorandum Opinion and Order2 in which reconsideration was denied.
The case was enormously complicated and tedious. The channel was newly al
Appellants say the Commission failed to resolve all the issues raised by them, violated its policy statement in a number of respects, failed to give weight to certain derelictions or shortages of the successful grantee, ignored uncontradicted evidence, acted arbitrarily, did not apply the comparative criteria to all applicants — a total of sixteen points. They argue, inter alia, that, when the application of the initially successful grantee was withdrawn, the entire initial decision became meaningless and so the parties have been deprived of their right to have an examiner “pass upon their proposed findings and conclusions addressed to the factual situation as it actually exists.” The last-stated contention is obviously untenable. Basic facts do not derive their characteristics from the conclusion one may draw from them. If the conclusion be changed, the underlying facts are not thereby changed. Even if the conclusion be withdrawn the facts remain facts, and if they were correctly found the findings remain unchanged. In addition to this consideration on the point made by appellants, we note there was a reargument of the ease after the withdrawal of the initially successful applicants.
We think we need not discuss any of the other contentions, with one exception. The noteworthy phase of the dispute concerns principally the procedural requirements in a decision in a comparative case. The Commission had developed guidelines, which it called “criteria” and which it used for comparative measurement purposes. In the course of usage these criteria acquired names. Thus, some of them are Area Familiarity, Integration of Ownership and Management, Broadcast Experience, Diversification of Control of Mass Media, etc. In the midst of the present proceeding the Commission published a “policy statement”, in which, with vigorous internal discussion and difference of opinion but with considerable flexibility in the result, it discussed some criteria at length, others summarily, and described the policies it intended to follow in making comparative decisions.3
The reasoning of the Commission in the matter at bar may be a bit circuitous, but it is clear and amply supported by findings of fact and by the evidence. We pointed out in Johnston Broadcasting Co. v. FCC 4 the decisional process to be followed in disputes of fact. We said there should first be findings of basic facts, based directly on evidence; then there should be findings of ultimate facts, which are drawn from the basic facts; and then a conclusion should be given, based on the ultimate facts. In this concept of the process the basic facts should be drawn, at least initially, by the examiner, if there be one, since it is he who sees and hears the witnesses. In that opinion we said:
“(5) Findings must be made in respect to every difference, except those which are frivolous or wholly unsubstantial, between the applicants indicated by the evidence and advanced by one of the parties as effective. (6) The final conclusion must be upon a composite consideration of the findings as to the several differences, pro and con each applicant.” 5
The Commission stated, clearly and emphatically, that it preferred Flower over all other applicants on the basis of broadcast experience. When a finding of preference “over all other applicants” is thus made, it is unnecessary to name separately each other applicant. In the case at bar a reading of the findings respecting the broadcasting experience of the several people scheduled to be in the management of each of the applicants shows clearly the reason for the preference of Flower on the point. The Commission, with all the facts before it in detailed findings, exercised a judgment which it was empowered to make. The basis for the choice is clear in the basic findings.
For the reasons which it stated, the Commission gave each of the other applicants otherwise associated with the media of mass communication a substantial preference over Federal on that criterion (Diversification of Control of Media of Mass Communication). In respect to Participation in Station Operation by Owners (Integration of Ownership and Management), Federal was substantially preferred over the other applicants, and among the other applicants Flower was ranked highest on this point. The Commission found no preference in respect to Proposed Program Service. In respect to the criterion Past Broadcast Service (the operation of broadcast stations in which the present applicants’ principals held an ownership interest), three applicants presented evidence. The Commission gave a preference to one (Community) on this point and denied any to the other two. The Commission awarded a demerit to one applicant on account of a character deficiency of one of its officers. Upon the basis of the preferences thus awarded, and the demerit, the Commission had remaining for final comparison three applicants — Federal, Flower and Community. It preferred Flower to Federal because of the latter’s existing radio stations. It preferred Flower to Community because of Flower’s superiority in participation in station operation (i. e., integration of ownership and management.) It found this superiority not because the owners of Flower planned a greater amount of participation in its management but because they were much more and better experienced than were the owner-managers of Community. A reading of the detailed findings concerning the experience of each of the people involved shows clearly the grounds upon which the Commission made this finding.'7 We must keep in mind that we are not choosing a grantee. Our function has been described many times: We must understand the processes pursued by the Commission and test the validity of both the process and the conclusion.
We find no fault necessitating reversal.
Affirmed.
1.
Flower City Television Corp. et al., 9 F.C.C.2d 249 (1967).
2.
10 F.C.C.2d 718 (1967).
3.
Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393 (1965).
4.
85 U.S.App.D.C. 40, 175 F.2d 351 (1949).
5.
Id. at 46, 175 F.2d at 357.
6.
Such a task would be burdensome to the point of the ridiculous in some cases, as in the present one. To compare each of eight applicants with each other applicant in respect to each of eight criteria would require 224 comparisons, according to our combinatorial analysis.
7.
The findings as to the personnel of Flower involved in this problem will be found in the Flower City Television decision, supra note 1, at 269, those of Community at 295, and those of Citizens at 322.