(dissenting):
The case before the Commission began August 7, 1967 when the Union filed a *260petition to deny the renewal of the license of Station WREO. So far as material here the ground of the petition was that the station had violated the Commission’s Fairness Doctrine. It was alleged that: After a long campaign the Union organized the retail store employees of Hill’s Department Store in Ashtabula, Ohio, and in April 1965 the Union was certified as the collective bargaining agent for the employees. After some ten months of unsuccessful bargaining the Union placed pickets in front of Hill’s store and undertook to present its case by means of newspaper and radio advertisements. Commercial time was purchased from Station WREO and from stations located in other communities where Hill’s operated stores. The radio message explained that a strike was in progress, that certain issues were unresolved and that Hill’s Department Store was being picketed. In conclusion the message urged that all union members, their families and friends observe and respect the picket line.1
According to the petition:
“When [the Union’s] commercial message was first offered to the stations in early 1966, there was no difficulty, no objection, no hesitation in using it. Then, suddenly, without warning, or without adequate explanation, all within a period of a few days, station after station in Northeast Ohio found it necessary to cut off the Union’s advertising.
“An important consideration is that at the same time, Hill’s was engaged in commercial advertising over the stations involved, broadcasting its message of bargains for the consumer.
* * * -X- * *
“One needs to be neither cynic nor seer to understand why the Union was deprived of its right to advertise to the public on an issue of such a controversial nature. The answer is as old as the history of human pressure: one may assume that Hill’s passed the ‘word’ to the Station, and that was enough.”
In its answer to the petition Station WREO denied that it had violated the Fairness Doctrine and said that the station had offered to present without charge a program on which both the Union and Hill’s Department Store could express their views.
The Union’s petition was not supported by affidavit as required by § 309(d) (1) of the Communications Act, 47 U.S.C. § 309(d) (1).2 Nevertheless the Commission, as it was empowered to do under 47 U.S.C. § 308(b), by written questions required further written statements of fact from Station WREO.3 From these statements it appeared that between February 16 and April 5, 1966, *261WREO carried approximately 322 of the Union’s announcements. The announcements were discontinued on April 5, 1966. According to the station the reason for the discontinuance was that “the continuous repetition of these partisan announcements had become an irritant to WREO’s listening audience”; that the station felt it would “have no further part in the controversy which was going on between the Union and Hill’s Department Store”.
Both the station and Hill’s flatly denied that the store or anyone on its behalf had sought to influence WREO in the matter of the cancellation of the Union’s announcements. It was conceded that commercial advertisements on behalf of Hill’s Department Store were carried by the station throughout the year 1966.
On these facts the Commission in its Memorandum Opinion concluded first that the Union’s petition to deny was defective, in that it was not supported by a statement under oath that the allegations contained therein were true to the personal knowledge of the affiant. The Commission concluded further:
“As to the fairness aspect, .the licensee has presented the Local 880’s advertisements, and after notifying Hill’s and Local 880 that it would air no more announcements on the subject of the Ashtabula strike, it issued both sides an invitation to air their respective views on the strike over its facilities free of charge. In the circumstances, there is no need to consider further issues under the fairness doctrine. Further, we hold that WREO’s refusal to accept additional ads from Local 880 after April 1966 was, for the reasons advanced by the station, within the proper limits of its discretion (Mclntire v. Wm. Penn Broadcasting Co., 151 F.2d 597, (1945)).”
Finally, the Commission found that there were no unresolved questions of fact remaining and that the grant of the WREO renewal would serve the public interest, convenience and necessity; and accordingly, the Union’s petition was denied.
On this appeal the Union in its brief concedes that, “The Union was unable to substantiate its claim that Hill’s had brought pressure on the stations, which reduces the issues here primarily to the fairness doctrine and collateral legal questions involved, including that of a hearing.” In substance the Union argues that the Commission was arbitrary and capricious in finding, without a hearing, that WREO had not violated the Fairness Doctrine.
The Communications Act provides that no hearing on a petition to deny the renewal of a broadcast license need be held if the petition fails to contain specific allegations of fact sufficient to show that the petitioner is a party in interest and that the renewal would be prima facie inconsistent with the public interest, convenience and necessity. 47 U.S.C. § 309 (d) (1). If there are no substantial and material questions of fact and the renewal would be consistent with the public interest, convenience and necessity the petition shall be denied and the renewal granted without a hearing. 47 U.S.C. § 309(d) (2). If the Commission cannot make such a finding, however, and if a substantial and material question of fact is presented, the application for renewal shall be set for hearing on the issues raised. 47 U.S.C. § 309(e). See Southwestern Operating Company v. F. C. C., 122 U.S.App.D.C. 137, 351 F.2d 834 (1965). The question before us therefore is whether the Commission acted arbitrarily and capriciously in finding that there was no substantial and material question of fact with respect to the alleged violation of the Fairness Doctrine by Station WREO, and in finding without a hearing that a renewal of the station’s license would be consistent with the public interest, convenience and necessity.
The essential facts material to the alleged violation of the Fairness Doctrine by the station are plain. Over a period of approximately seven weeks in 1966 the station broadcast some 322 of the Union’s announcements. The announcements were then discontinued by the sta*262tion for the assigned reason that they were annoying to listeners and that the station did not choose to become involved in the labor dispute. During this same period the station broadcast commercial advertising for Hill’s Department Store, and these broadcasts were continued after the Union announcements were stopped. On these facts the Commission held as a matter of law that there had been no violation of the Fairness Doctrine by Station WREO.
The Fairness Doctrine promulgated by the Commission requires that a broadcaster give adequate coverage to public issues and that coverage must be fair in that it reflects the opposing views. Red Lion Broadcasting Co. v. F. C. C., 395 U.S. 367, 377, 89 S.Ct. 794, 23 L.Ed.2d 371 (1969). The interpretation and application of the Doctrine are primarily matters confided to the sound judgment and discretion of the Commission. Cf. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). In the administration of the Doctrine the Commission has stated that the selection and presentation of program material are the responsibility of the licensee, not the Commission; and all the Commission requires is that the licensee make a reasonable effort in good faith to give a fair and well-rounded presentation of public issues. See Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949); Letter to Oren Harris, 3 Pike & Fischer, R.R.2d 163, 167 (1963); Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance (Fairness Primer), 29 Fed.Reg. 10415, 10416 (1964). In many decisions applying these principles to specific cases the Commission has held that broadcasters have a wide area of discretion in which to exercise their journalistic judgment in complying with the Fairness Doctrine, and that review by the Commission of the actions of licensees in this area is limited to a determination of the good faith and reasonable nature of such actions. See Citizens Against Proposition 15, 3 Pike & Fischer, R.R.2d 777 (1964) ; Mid-Florida Television Corp., 4 Pike & Fischer, R.R.2d 192 (1964); Mrs. Madalyn Murray, 5 Pike & Fischer, R.R.2d 263 (1965); American Friends of Vietnam, Inc., 6 Pike & Fischer, R.R.2d 126 (1965); Miss Geri Tully, 6 Pike & Fischer, R.R.2d 123 (1965). It is established law that the scope of this court’s review in such cases is limited and that when there is a rational basis in the record for the result reached by the Commission its action should be affirmed. See Red Lion Broadcasting Co. v. F. C. C., 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956); McCarthy v. F. C. C., 129 U.S.App.D.C. 56, 390 F.2d 471 (1968); Philadelphia Television Broadcasting Co. v. F. C. C., 123 U.S.App.D.C. 298, 359 F.2d 282 (1966).
The Commission in its brief, and for the purposes of this litigation, assumes that the Fairness Doctrine applies in the circumstances of this case. Assuming that the Fairness Doctrine applies, I would hold that the Commission’s decision to renew WREO’s license has a rational basis in the record and is a reasonable application of the Doctrine. I would hold further that on the undisputed facts no hearing was necessary.
There is a reasonable basis in the record for the Commission’s conclusion that WREO dealt with the Union fairly and in good faith. The station carried the Union’s message on 322 occasions over a period of weeks, so that the public was fully advised as to the Union’s views with respect to the pending labor dispute. In addition, the station offered free time to the Union to present its views in a discussion program with representatives of the store. The offer was rejected by the Union. Finally, as the Union now concedes, investigation disclosed that there was no basis in fact for the allegation that in terminating the Union’s announcements the station acted in bad faith as a result of pressure by the department store. On such a record I can*263not say that the Commission was arbitrary or capricious in finding that there was no violation of the Fairness Doctrine.
The Commission’s decision with respect to the station’s alleged violation of the Fairness Doctrine was based upon the facts disclosed in the pleadings and developed by the Commission’s own investigation. In this situation it was not unreasonable for the Commission to conclude that no hearing was necessary; for the facts having been established, there was nothing to hear. In my judgment a “suspicion that something might have been amiss”, upon which the majority opinion relies, was not enough to call for a hearing.
The only remaining question was whether the Union alleged facts sufficient to make a prima facie showing that renewal of WREO’s license would not serve the public interest, convenience and necessity. Since the Union’s petition was based wholly on an alleged violation of the Fairness Doctrine, a violation the Commission did not find, the answer to this question was plainly no. I conclude, therefore, that renewal of WREO’s broadcasting license was not arbitrary or capricious and that the action of the Commission should be affirmed on this ground.
Although for the purposes of discussion I have accepted the Commission’s assumption that the Fairness Doctrine could be applied in this case, I think the assumption is invalid. Specifically, I cannot accept the implicit premise of the majority opinion, that when a radio station has broadcast advertisements of the goods or services of a private business which is engaged in a dispute with a labor union, the Fairness Doctrine requires the station to broadcast the union’s views on the labor dispute. In my judgment this case illustrates the fallacy of that premise.
According to the Union’s broadcast message the important unresolved issues in its dispute with the ¡¡store were “Union Security, Arbitration and Grievance Procedure, Health and Welfare, Funeral Leave, and Visitation Rights to the store”. See Note 1, above. The store’s routine advertisements of goods and wares for sale were not relevant to the issues thus formulated by the Union, that is, the advertisements were not a presentation of the store’s side of the labor controversy. Accordingly, there was no occasion to invoke the Fairness Doctrine to assure that the Union’s side would be heard.
The theory of the majority would extend to the store’s advertisements the rule applied by the Commission in the case of cigarette advertising. In the Matter of Television Station WCBS-TV, New York, New York (Applicability of Fairness Doctrine to cigarette advertising) 9 F.C.C.2d 921 (1967). As the Commission in its opinion emphasized, however, “cigarette advertising presents a unique situation”. (9 F.C.C.2d at 942, 943.) I cannot agree that the principle of that decision ought to be applied to the commercial advertising of a department store simply because the store at the moment is involved in a labor dispute.
. The full text of the Union’s message was as follows:
“ANNCR: Here is an important message from RETAIL STORE EMPLOYEES UNION LOCAL 880 — regarding the picket line now at HILL’S DEPARTMENT STORE in Youngstown. The picket line is in support of the strike at HILL’S DEPARTMENT STORE in Ashtabula. This strike now in progress at HILL’S comes after seven months of continuous negotiations, during which no agreement has been reached between the Retail Store Employees Union Local 880 — and the management of HILL’S DEPARTMENT STORE. Important issues still not resolved include Union Security, Arbitration and Grievance Procedure, Health and Welfare, Funeral Leave, and Visitation Rights to the store. These, and other issues are vital to the betterment of the store employees working conditions! Some Hill’s employees are still working because — if they all go out — the Company would try to replace them with non-union help who could be granted a vote in subsequent elections. The 2,000 area members of Retail Store Employees Union Local 880 request that all union members, their families and friends observe and respect the picket line now at HILL’S DEPARTMENT STORE!”
. Subsequently, on September 12, 1968 counsel for the Union verified the petition.
. Any falsification in the statements furnished by the station would have been subject to the penalties provided in 18 U.S.C. § 1001.