(concurring) :
I agree to affirmance but for different reasons.
My brethren read paragraph 36 of the Commission's Fourth Report and Order as merely reflecting our decision in Transcontinent Television Corp. v. F.C.C.,1 that a licensed petitioner is entitled to a modification hearing only if its license has not been renewed since the promulgation of the Commission’s new regulations. I do not read paragraph 36 so narrowly, nor do I think the Commission did, though I agree the orders are not models of clarity.
The majority refer to footnote 52 of the Commission’s Third Further Notice in ascertaining the meaning and purpose of paragraph 36. In this footnote the. Commission undertook to allow power increases to Class A stations over objection only after “the termination of the current license period for the interfered-with station.” But in paragraph 36 of the Fourth Order the Commission stated:
In the Third Further Notice we tentatively discussed the rights of FM licensees to object to applications for increased facilities * * *. (See footnote 5 * * *.) On reflection, we have decided not to attempt to resolve the rights of such objectors at this time. They instead will be resolved if presented in a specific case.
Thus it seems that “on reflection” footnote 5 was put aside.
Furthermore, the order under review states:
In paragraph 36 of the Fourth Report and Order we reserved judgment on the right of an existing licensee to object to such interference. An existing station takes renewal of its license subject to the rules then in effect, and were it not for the statement in paragraph 36, licensees would not be heard to complain of interference against which they no longer were protected since with the change in the rules such interference no longer constituted a modification of license.
The Commission postponed the grant until renewal, and said:
At that time, Pacific’s right to demand a hearing because the application *1023works a modification of its license will no longer exist. But, as indicated by paragraph 86 of the Fourth Report and Order, it was not the Commission’s intention to foreclose inquiry into the impact of 1 mv/m interference upon renewal of the interfered-with station’s license. [Emphasis added.]
For me all of the foregoing adds up to the following. The Commission, by holding extensive hearings on the desirability of the proposed rule allowing all short-spaced stations a power increase when requested and then delaying the grant of such increase until the renewal of an objector’s license, could and did avoid the necessity of granting a license-modification hearing. It nevertheless expressed a willingness to examine particular claims of undue interference. It is conceivable that there may be cases where this interference will be significant, as where a number of short-spaced Class A stations, if granted power increases, would cause substantial injury to a larger station in the area.
The Commission’s willingness to examine such questions reflects a sensitive regard for the public interest and will not greatly add to the Commission’s burden. It recognized “that only in relatively few cases would interference be caused within an existing station’s 1 mv/m contour. Having already heard general objections to its rule, however, the Commission here had a broad discretion to determine whether any further hearings were required on the exemption claim.3
Petitioner sought an evidentiary hearing to prove that it would suffer greater interference than the Commission’s normal theoretical calculations would suggest, by establishing that spot tests showed petitioner’s signal was weaker than its rating and that the atypical terrain in the area had distorted the figures on which KTIM’s antenna height was based. The Commission rejected this proffer, holding:
Even if Pacific had stated when, where and by whom the spot measurements had been made, such measurements are not considered to be an acceptable substitute for theoretical computations based on the prediction method specified in the Commission’s Rules.
The Commission also found that the regulations concerning KTIM’s antenna height, and therefore the reach of its signal, made no provision for considering the type of information petitioner offered to present. I cannot say that a hearing is reasonably required in these circumstances.
. 113 US.App.D.C. 384, 308 F.2d 339 (1962).
. The complete text of this footnote can be found on p. 1019 of the majority opinion.
. “As the Commission has promulgated its Rules after extensive administrative hearings, it is necessary for the accompanying papers to set forth reasons, sufficient if true, to justify a change or waiver of the Rules. We do not think Congress intended the Commission to waste time on applications that do not state a valid basis for a hearing.” United States v. Storer Broadcasting Co., 351 U.S. 192, 205, 76 S.Ct. 763, 771,100 L.Ed. 1081 (1956).