*703ON PETITIONS FOR REHEARING, RECONSIDERATION OR CLARIFICATION AND SUGGESTIONS FOR REHEARING EN BANC
Before LEVENTHAL and ROBB, Circuit Judges, and DAVIS *, Judge, United States Court of Claims. PER CURIAM:Fidelity Television, Inc. has filed a petition for reconsideration of our March 6, 1975 decision in this case. Also, the Citizens Communications Center (CCC), a nonprofit organization supporting diversity in broadcasting, has asked for leave to file as amicus curiae a petition in support of rehearing or clarification of our decision, and has submitted such a petition. We regret that CCC did not ask to participate in this case at an earlier time. As intervenor RKO has noted in its opposition to CCC’s petition, the Center’s concern is really with what the Commission, rather than the court said and did, and the arguments it now makes could have been cogently made earlier. We have, however, decided to allow the Center’s petition to be filed, to give us the opportunity to reemphasize the limited scope of the previous opinion. Having done so, we deny the petitions for rehearing and reconsideration.
Our opinion affirmed the Federal Communication Commission’s decision to renew the license of intervenor RKO General, Inc. for station KHJ — TV in Los Angeles rather than awarding the license to challenger Fidelity Television, Inc. The decision in no way approves a return to the partial comparative hearing procedure of the 1970 Policy Statement Concerning Comparative Hearings Involving Regular Renewal Applicants, 22 F.C.C.2d 424 (1970), which procedure we vacated in Citizens Communications Center v. F. C. C., 145 U.S.App.D.C. 32, 447 F.2d 1201 (1971). The Commission here held, as it must, a full comparative hearing under the 1965 Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393 (1965). The “spur to competition” of that procedure was preserved here, and in fact reaffirmed when the Commission required KHJ, upon a finding that its service had not been superior, to run the gamut of comparison with Fidelity on the traditional comparative factors of integration and diversification.
What we decided 169 U.S.App.D.C. pages ---, 515 F.2d *704page 702) is that the Commission could permissibly determine after such a full comparative hearing that (a) “Fidelity and RKO were essentially equally poor contenders — or, at the best, both were minimally acceptable applicants”, (b) though in this situation the agency might well have rejected both the existing licensee and the challenger, that position was. not put before the Commission and in those circumstances we cannot overturn its decision to follow the theory that “minimal service is to be preferred to no service at all”; (c) since a choice was to be made, between two competitors on an equal plane, it could properly light on the existing licensee; and (d) the issue of whether the license could or should have been renewed conditionally or for a period shorter-than-normal was not before us, not having been raised below or here.
As we pointed out in the opinion (169 U.S.App.D.C. pages -, -, 515 F.2d pages 702, 703), Fidelity did not show itself a superior or preferable applicant but rather “a poor challenger who offers little more and is likely in fact to provide somewhat less than the incumbent.” On this general subject the hearing examiner said: “Once it clears the easy (for it) hurdles — local ownership, radio diversification and public opinion — Fidelity does not look too good. Attached to its qualifications are no experience in the field of broadcasting, no contributions to the art, no proof through the school of experience of licensee answerability for stewardship, no proof, through the same school, of ability to stand the shock of adverse financial conditions, and no demonstrated ability to conceive and present programs of high quality [footnote omitted].” In the same connection, the examiner severely criticized the applicant’s integration proposals, which placed inexperienced stockholders, working part-time, in supervisory roles. He said: “If Fidelity is serious about its proposal, it is projecting an operation that will, at best, be signalized by confusion, and, at worst by chaos. * * * Proposals such as this are susceptible of two interpretations that should not be shrugged off. Either the proponents honestly believe that operation of a television station, unlike any other enterprise, can be effectively directed by an inexperienced group on a part-time basis, or they advance the proposal for show purposes only without intention to effectuate it. Neither inference is very palatable. The former suggests witlessness. The latter raises questions as to the advisability of entrusting stewardship to those who would attempt to fob off on a licensing agency such a tall tale.” That is the type of challenger this case concerns.
Moreover, we stated several times in the opinion that our review of the Commission looked to the manner in which, in 1973, not 1975 or any date in the future, the agency applied its then existing policy and rules to the case at hand. At that time, the Commission, by rule and by decision, consistently distinguished, in making assessments under the diversification criterion, between situations in which a multiple licensee wished to obtain a new station and those in which the organization was applying for renewal of a preexisting license. On the other hand, the Commission’s decision in this case was rendered prior to promulgation of the 1975 newspaper cross-ownership rules, Second Report and Order, Docket No. 18110, F.C.C. 75-104 ¶ 131 (Jan. 31, 1975). These rules adopt a structural rather than a functional approach to diversification even as to existing licenses under which an entity which owns a newspaper may not, in some structurally specified cases, retain a broadcast license. We made and make no decision whether, under such an approach, it would be possible to allow any entity to retain multiple licenses. We decided only that, as of 1973, the FCC applied its contemporaneous diversification policy which, as to renewal applicants, encompassed consideration of functional separation of activities, in a manner which was essentially consistent with prior law.
When the smoke clears away, we are left with the distinct impression that *705we have a “nothing” applicant, who has offered a novel construct of a Southland service philosophy; who has an integration philosophy that the examiner correctly derided as being either “witless” or insincere; who has shown lack of candor in certain aspects 1 — and who comes before the FCC rather naked, saying that even so I am better naked than the incumbent, because he lacks diversification. And what we answer is that, on the criteria at the time, the FCC was not in violation of law in applying a diversification criterion that held that RKO’s operation of stations autonomously and independently met the objectives sufficiently to withstand the competition of a “nothing” competitor.2
The petitions for rehearing and reconsideration are denied.
Statement of BAZELON, Chief Judge, as to why he voted to grant rehearing en banc:
In an earlier day, this court tended to affirm comparative licensing decisions with only the most limited inquiry into the process of decision-making. If the FCC denominated the factors operative' in its decisions with some reasonable clarity, this court would not intervene even if the decision under review was illogical in terms of Commission policy, conflicted with past decisions of the agency or otherwise was not fairly reasoned out from established standards. In recent years this court has, it appeared to me, moved away from this posture into a more demanding stance, requiring of the Commission that it adhere to the rule of law in its comparative and other discretionary decisions.1 The decision here adopts the form of this more recent approach — assuming a basically in depth inquiry into the Commission’s process of decision — but, I think, not the substance. In our earlier approach, we took the view that the comparative decision was essentially political and not bound by the rule of law; the least that could be said for this approach was that it did not attempt to justify in rational terms the helter-skelter so often present in comparative decisions. The court’s opinion in this case unfortunately may be seen as a rational justification for an essentially un-rational decision. Moreover, the central issue of the applicability of the rule of law to highly discretionary decisions is not sufficiently delineated and our choices in regard to this issue are therefore less informed to that extent.
The purpose of this statement is to discuss these matters in the course of demonstrating the manner in which the Commission has failed to follow the rule of law in this case. This project involves a consideration of the administrative policies and judicial decisions which the Commission either ignored or misapplied in its decision. The organization of the statement is as follows. First I indicate the manner in which the Commission has granted an illegal renewal expectancy to RKO General, Inc., one of the comparative participants, in contravention of our decision in Citizens Communication Cen*706ter v. FCC, 145 U.S.App.D.C. 32, 447 F.2d 1201 (1971). This entails (A) a consideration of the manner in which the past performance of a renewal applicant may be considered under the CCC decision and an argument that this consideration entitles RKO to no renewal expectancy (169 U.S.App.D.C. pages ---, 515 F.2d pages 706-710); (B) a discussion of the subliminal process the Commission used to avoid a comparative decision and to grant an illegal renewal expectancy (169 U.S.App.D.C. pages ---, 515 F.2d pages 710—713); (C) an argument that the Commission failed to follow its own precedent in its ruling on the diversification of ownership comparative factor (169 U.S.App.D.C. pages ---, 515 F.2d pages 713—717); and (D) a review of a passel of related errors which taken together strongly indicate that the Commission nullified the comparative hearing process (169 U.S.App.D.C. pages ---, 515 F.2d 713 pages 717-721). Second, I suggest that the Commission improperly denied a hearing on a specialized programming issue raised by Fidelity Television, Inc., the other comparative participant, on extremely technical grounds and in contravention of our recent decision in Citizens Committee to Save WEFM v. FCC, 165 U.S.App.D.C. -, 506 F.2d 252 (1974) (en banc). This involves (A) a consideration of the grounds upon which the programming issue was denied and a rejection thereof (169 U.S.App.D.C. pages ---, 515 F.2d pages 721—725); and (B) a review of First Amendment issues implicated by consideration of past and proposed programming in comparative hearings (169 U.S.App.D.C. pages -, -, 515 F.2d pages 725-726).
1. RKO General Was Granted an Illegal Renewal Preference
A. CCC and the Permissible Extent of Renewal Expectancies
As the court explains, RKO General, Inc., a wholly owned subsidiary of the General Tire and Rubber Company, was until 1965 the licensee of KHJ — TV, Channel 9 in Los Angeles. On August 31, 1965, RKO filed an application for renewal of its license for KHJ — TV. On October • 25, 1965, Fidelity Television, Inc., filed a mutually exclusive application for a construction permit to operate Channel 9. The two applications were set down for a comparative hearing. There then ensued four years of litigation over Fidelity’s attempts to enlarge the issues to be heard in the comparative hearing. The result of this litigation is described and criticized in Part II. On August 13, 1969, the Hearing Examiner recommended that Fidelity’s application be granted and that RKO’s application be denied. Two further years of delay ensued as the Commission pondered whether to reopen the record at the comparative hearing to take further evidence of anti-competitive violations by General Tire. Having decided against this course of action,2 the Commission then delayed decision for two further years. After prodding from this court, the Commission finally issued its decision almost another year after that.3 This decision declined to accept the Hearing Examiner’s recommendation and instead granted RKO’s renewal application and denied Fidelity’s application.4 The vote in the Commission was 3 — 2, with the deciding vote being cast by Chairman Burch who concurred in the result of the majority only and not the opinion issued.
Accepting for the moment the scope of the hearing held and the propriety of the Commission’s treatment of the standard comparative issues, the ratio decidendi of the Commission was this:5
*707From our consideration of these [applications] up to this point, we have established that each applicant is basically qualified to be a licensee, that the characteristics of the [applications] differ in certain respects, but that. none of those differences provides a basis for making a choice between the two applicants in this proceeding. Nonetheless a selection must be made, and so we shall look to other aspects of the record affecting the public interest. In this connection, we believe that recognition must be given to the rights and expectancies of an ordinary renewal applicant.
[In light of RKO’s substantial investment in the station to make the Channel viable and in light of the renewal expectancies of RKO], we believe that there is a public interest, both in the Los Angeles area and the nation at large, in insuring the predictability and stability of broadcast service. If there is no such security for applicants seeking facilities with the intention of providing good service to the public, the overall development and motivation of the industry will suffer. . . . [We] are persuaded that credit must be given in a comparative renewal proceeding, when the applicants are otherwise equal, for the value to the public in the continuation of existing service. . . . [Since] the record is clear that Fidelity has not demonstrated that it will in fact provide a better service than RKO, we’ are convinced, for the reasons set forth above, that RKO’s renewal application . . . must be preferred.
Initially, it appears that the court misapprehends this rationale for decision. The reader may wish to compare the foregoing quotation with the following representation of it in the court’s opinion: 6
On the whole it is fair to say that the Commission found that the ultimate effect of its analysis of the record was that Fidelity and RKO were essentially poor contenders — or, at the best, both were minimally acceptable applicants. . . . [We] cannot say that [the Commission] committed legal error when, in its attitude as of the times pertinent in this case, it took the view that ‘minimal service is to be preferred to no service at all.’ Compare Broadcast License Renewal Act, H.Rep.No.93-961, 93d Cong., 2d Sess. 17 (1974). There is no need here to expand on ‘renewal expectancies.’ We are not faced with a situation where a superior applicant is denied a license because to give it to him would work a ‘forfeiture’ of his opponent’s investment. We merely confirm what we intimated in [Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 854, 859 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971)]—that, when faced with a fairly and evenly balanced record, the Commission may, on the basis of the renewal applicant’s past performance, award him the license.
The court does not inform us from whence comes the quote “minimal service is to be preferred to no service at all.” It surely does not come from the Commission’s opinion. The Commission referred to the value of “continuation of existing service” and not to the value of minimal service over no service at all. And indeed it had no other choice since we confront here not a petition to deny — where the value of minimal service over no service at all is certainly relevant — but rather a comparative hearing — where the issue is not the existence of service but rather who shall provide it. Why the court finds no need to “expand upon renewal expectancies” is not at all clear to me, since I read the Commission as basing its decision squarely on renewal expectancies.
The court suggests that the Commission’s decision was based on a rule that among equal applicants, the renewal applicant may be preferred on the basis of “past performance.” First, the court’s point about the non-superiority of Fidelity’s application is entirely circular since *708that issue can only be determined by making a comparative evaluation. But the Commission’s decision, as the quoted excerpt shows, did not make a comparative decision since it chose largely on the basis of “renewal expectancies.” In other words, Fidelity’s application was not “superior” simply because the Commission never decided whether it was! As is discussed in more detail on pages 169 U.S.App.D.C. pages -, -, 515 F.2d pages 710, 711, infra, use of the renewal expectancies, clearly relied upon by the Commission, completely short-circuits the comparative evaluation process. Hence, the Commission did not choose between “equal” applicants since the very notion of a comparative choice requires that one applicant be “more equal” than others. The question is why is that applicant better. To that question, the Commission’s only answer is “renewal expectancies.”
Second, the Commission did not, repeat did not, award renewal to RKO on the basis of RKO’s past performance. The previously quoted excerpt should make that point clear. If further proof is needed, the following additional quote should provide it: 7
[We] are persuaded that there are sufficient good points to offset the less favorable aspects of KHJ — TV’s performance and that, on balance, its record must be deemed to be within the bounds of average performance expected of all licensees, thus warranting neither a preference nor a demerit.
Earlier in its opinion, the court expressly affirms this holding.8 Indeed, both the Commission and the court had to labor valiantly, for what purpose I do not know, to overturn the Examiner’s finding that RKO deserves demerit for its past performance.9 The Commission’s decision is based purely on renewal expectancies, on the value of “continuation of existing service.”
The issue thus delineated is whether the Commission may use the value of “continuation of existing service”, quite apart from the quality of that existing service, as a factor in comparative renewal hearings. Initial reference to the relevant statutory provisions would indicate that this factor is legally irrelevant.10 However, early Commission practice was to grant a basically insuperable advantage to the incumbent on the basis of past performance.11 Thus, ad*709ministrative practice, confirmed by the courts, was that some consideration must be given to incumbency or renewal expectancies. The question became not whether renewal expectancies were to be recognized but what was the proper consideration of renewal expectancies.
This court provided the framework for analysis of that issue in Citizens Communications Center v. FCC, 145 U.S.App.D.C. 32, 447 F.2d 1201 (1971). There we considered a Commission policy of refusing to assess the comparative qualifications of competing applicants in renewal hearings until after the Commission had determined whether the incumbent licensee had performed “substantial service.” If the licensee had performed such service, then renewal was granted without consideration of comparative factors. If the licensee did not so perform, a full comparative hearing was held.12 We rejected this policy as inconsistent with the statutory and caselaw requirement for a full comparative hearing on the qualifications of competing applications. This holding was not purely formal: the right to a full comparative hearing involved not only the right to present a competing application but also the duty of the Commission to make a decision on the basis of a comparative examination of the competing applications.13 The CCC case thus establishes that the Commission may not use renewal expectancies of incumbent licensees to shortcircuit the comparative hearing
In particularly famous dicta, the CCC court defined the proper consideration of renewal expectancies:14
We do not dispute, of course, that incumbent licensees should be judged primarily on their records of past performance. Insubstantial past performance should preclude renewal of a license. ... At the same time, superior performance should be a plus of major significance in renewal proceedings. The court recognizes that the public itself will suffer if incumbent licensees cannot reasonably expect renewal when they have rendered superior service.
The statement reflected administrative practice (or, at least, stated administrative practice) and was quickly adopted by the Commission after the CCC decision.15 This form of “renewal expectancy” fitted easily into the doctrinal framework established in CCC. A licensee’s past performance was clearly indicative of potential as a licensee and thus must be given comparative weight against a challenger’s advantages in proposed programming, ascertainment efforts, diversification or whatever. The proper weight to be given to past performance is, of course, a matter for the Commission’s judgment.
*710It is obvious, and the Commission does not seriously deny it, that RKO is entitled to no renewal expectancy under the reasoning of CCC ostensibly adopted by the Commission. RKO barely avoided a finding of insubstantial service and received only a lukewarm finding of “average” performance which deserved neither merit nor demerit.16 RKO would not be entitled to a finding of “substantial” service under the Commission’s post-CCC suggested guidelines.17 And, as established above, the Commission did not find that RKO was entitled to renewal on the basis of past performance. Indeed, the renewal expectancy granted to RKO had nothing to do with RKO’s own performance as a licensee, but rather was premised upon a general policy of ensuring the “continuation of existing service” unless a challenger proved that it would “in fact” provide better service than the existing licensee.
We thus have seen that the renewal expectancy awarded to RKO is quite distinct from that approved in CCC and accepted by the Commission. It remains to be seen whether that renewal expectancy is inconsistent With the holding and reasoning of CCC and the Federal Communications Act.
B. The Renewal Expectancy Granted to RKO Shortcireuits the Comparative Hearing Procedure
The first thing one notices about the renewal expectancy granted to RKO and considered in this comparative hearing is that it has nothing whatsoever to do with RKO’s comparative merit as a licensee. Rather it is a general policy, existing wholly apart from RKO, which mandates that renewal will be granted unless a challenger proves that it will “in fact” provide better service than the existing licensee. Initially, we may strike the “unless” clause off the last sentence. The comparative factors in general are designed to determine which competing applicant will provide the “best practicable service.”18 And, indeed, the Commission has affirmed that the factor of diversification of ownership of communications facilities is a factor above and beyond the “best practicable service” determination.19 Thus, the comparative hearing process is designed to determine whether the challenger will, under the only predictors the Commission recognizes, “in fact” provide better service. The issue is whether the grant of a renewal expectancy such as was given to RKO itself prevents that determination. I think it does.
The whole of the Commission’s effort in its opinion prior to the passage quoted in Part A above is to establish that neither applicant has a significant advantage over the other. Making the heroic assumption that the Commission succeeded in this effort, it still must, under CCC, make a comparative choice; it must make a selection. The mandate of the Act is that the Commission must choose and it has on previous occasions managed to choose on the basis of fairly equal records.20 But it is at precisely *711this point that the Commission pulls up short and refuses to make a comparative choice, holding that when in doubt it must renew. As I have stated, the renewal expectancy granted to RKO has nothing to do with its comparative qualifications and thus use of that factor may not be justified as simply one more element in the comparative balance. So, the use of the renewal expectancy prevents the challenger from making its case that it will in fact be a better licensee by forestalling the comparative decision which will establish the challenger’s contention. This Catch-22 reasoning completely shortcircuits the comparative decision process since it avoids the “overall relative determination upon an evaluation of all factors” 21 which is the sine qua non of comparative licensing.
It is no answer to this analysis to assert that the Commission simply imposed a “burden of proof” on the challenger to prove that it is better qualified under the comparative criteria. First, the Commission has not heretofore ever informed challengers that they have a special burden of proof which exists wholly apart from the comparative criteria and, as far as one can tell from the language of the reports, has never expressly applied such a “burden of proof.” The Commission advances no reasons in its opinion for departing from its prior practice and none are apparent. Thus, the matter should at least be remanded for that purpose.22 Second, it is clear that the Commission did not truly use the renewal expectancy as a “burden of proof.” Nowhere does the Commission make a comparative judgment between the two applicants, even with a burden of proof on Fidelity. Its whole discussion goes only to prove that RKO is qualified to be a licensee and is entitled to a renewal expectancy. Indeed, the Commission expressly refuses to make a comparative judgment, saying by fiat that none of the differences in the applications provide the basis for making a choice.23 The Commission nowhere provides any reasoned comparison of these differences; it treats the advantages and disadvantages of the two applicants but makes no comparison. To be sure, the Commission asserts that none of the parties are entitled to a preference or a demerit, as if those two concepts were all or nothing issues. But it never holds that in comparison to each other, Fidelity or RKO should have some advantage or disadvantage because of, respectively, diversification or past performance. And, as will be developed in Parts C and D below, there are very significant differences between the applicants which even under the Commission’s reasoning could provide the basis for a comparative choice.24
But more important than these two points, I would hold that the renewal expectancy granted to RKO violates the *712express provisions of the Federal Communications Act relating to renewal expectancies. 47 U.S.C. § 301 (1970) states that “no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license.” Other statutory provisions, buttressed by case law, provide reinforcement for this command.25 The very concept of a three year license demands that the holder be subject to competition at the license’s term. To grant an advantage in the comparative hearing process to the incumbent licensee for reasons wholly unrelated to its performance, past and future, nullifies the competition that the three year licensing scheme was designed to preserve. A renewul expectancy based on past performance could in fact encourage competition by providing a safe haven for the diligent licensee. A renewal expectancy not based on past performance will have an opposite result since any competitive spur provided by the three year license will be substantially eliminated. And, of course, there is no precedent in the Commission or in the courts for a renewal expectancy not based on past performance. I need hardly point out that CCC specifically and expressly relied on this competitive spur argument to strike down the Commission’s previous renewal policy.26
There are substantial antitrust and First Amendment considerations which support my position. As CCC expressly recognizes, perhaps the most significant comparative qualification which is ignored by a' policy that entrenches the incumbent licensee is diversification of ownership.27 The diversification guides, the most important single factor in the comparative hearing,28 constitute the prime legal rule for dealing with the extremely concentrated VHF television market.29 The guides thus serve both antitrust concerns, in regard to the market for television advertising, and First Amendment concerns by increasing the *713number of diverse speakers.30 The diversification guides serve First Amendment concerns in another manner as well. The passle of program regulation policies presently enforced by the FCC would violate the First Amendment in any context other than telecommunications. The justification for providing a different First Amendment regime to the telecommunications field is the alleged “scarcity” of broadcast speakers, a scarcity which if the truth were known is a product of the extremely concentrated VHF television market.31 Failure to effectively deal with the concentrated VHF television market will only increase the pressure for more program control. We thus erode our First Amendment freedoms in two ways by a refusal to enforce the diversification guides.
I conclude from the foregoing discussion that the court’s decision in the present case is inconsistent with CCC both because it shortcircuits the comparative hearing process and because it eliminates the competitive spur upon which CCC relied in significant part in its holding. Moreover, I think the renewal expectancy granted to RKO violates the Federal Communications Act independently of CCC. A review of the Commission’s treatment of the diversification guides in the present case provides additional evidence that the Commission both shortcircuited the comparative hearing process and violated the Federal Communications Act with its renewal expectancy for RKO.
C. The FCC Failed to Follow Its Own Precedent In Its Ruling on Fidelity’s Diversification Advantage
The FCC has traditionally granted a significant comparative advantage to. an applicant which possesses no other media interests over an applicant which does possess other media interests. In its 1965 Policy Statement on Comparative Broadcast Hearings, the Commission had this to say about the diversification guides: 32
We believe there are two primary objectives toward which the process of comparison should be directed. They are, first, the best practicable service to the public, and, second, a maximum diffusion of control of the media of mass communications. . . . Since independence and individuality of approach are elements of rendering good program service, the primary goals of good service and diversification of control are also fully compatible.
As in the past, we will consider both common control and less than controlling interests in other broadcast stations and other media of mass communications. The less the degree of interest in other stations or media, the less will be the significance of the factor. Other interests in the principal community proposed to be- served will normally be of most significance, followed by other interests in the remainder of the proposed service area and finally, generally in the United States. However, control of large interests elsewhere in the same state or region may well be more significant than control of a small medium of expression in the same community. The number of other mass communications outlets of the same type in the community proposed to be served will also affect to some extent the importance of this factor in the general comparative scale.
*714The diversification issue is a standard comparative issue and was duly considered by the Hearing Examiner and the Commission.
The following facts were developed. RKO was the licensee of standard, FM and broadcast television licenses in New York City (#1 viewing market in the country); Los Angeles (#2 viewing market); Boston (# 5 viewing market); Windsor, Ontario (serving # 6 Detroit market) and Memphis (#45 viewing market). RKO was the licensee of standard and FM stations in Washington-Bethesda (#9 viewing market) and San Francisco (#10 viewing market). RKO has controlling interests in a massive number of CATV franchises serving almost 100 cities and towns. Several towns are within the Grade B contour of Channel 9. RKO has other media interests, including microwave communications facilities, a chain of movie theaters, programming and advertising services and a small interest in a newspaper in Schenectady, New York. Fidelity has no other media interests. A 3% stockholder of Fidelity has a 10% interest in a CATV franchise 50 miles from Los Angeles. That is the extent of Fidelity’s media interests.33
From these facts, the FCC reached the miraculous conclusion that neither applicant was entitled to a diversification “preference.” Before indicating the absurdity of this conclusion, it is necessary to point out that this finding of no “preference” does not mean that if a comparative evaluation were made, Fidelity would have no advantage on diversification. If the FCC had in fact made a comparative determination, a diversification advantage of some kind would clearly be required. The Commission avoids this, by avoiding a comparative decision, as was noted in Part B above. As will be seen, all the Commission’s arguments against Fidelity’s “preference” or diversification advantage serve only to reduce its significance, not eliminate it entirely. The vestige is eliminated not by arguments directed to diversification policies but by avoidance of a comparative decision.
Taking a deep breath, I note the following arguments for reducing Fidelity’s diversification advantage. First, the Commission points out that there are 15 television stations, 126 radio stations and numerous newspapers within Channel 9’s signal contour. Second, the Commission finds that RKO has never sought to influence the operation of KHJ — TV to promote a uniform expression of views. Third, the. Commission will not attempt to restructure the broadcast industry in comparative hearings.34 These reasons are completely and utterly inconsistent with every reported comparative decision my office has been able to locate. Perhaps it is the unmitigated audacity of the Commission that stuns the court into accepting its sweeping repeal of the diversification guides. Whatever the reason, it is beyond cavil that the Commission’s reasoning will simply not bear analysis unless one makes the assumption that it has sub silentio repealed the guides.
First, as the 1965 Policy Statement clearly provides and as has been followed in every case decided since its promulgation,35 the existence of other media of *715the same type in the community may be weighed to some extent. However, the existence of other outlets neither cancels a diversification advantage, nor indeed renders it insubstantial. This principle has been applied in cites such as Boston, Terre Haute, and Buffalo.36 And no other conclusion would be plausible considering the express provision in the Policy Statement37 and recent cases38 that the diversification guides are directed to concentration of control in the nation and several regions, not only within a viewing market. In fact, this policy is implicit in the group ownership and chain broadcasting rules.39 Even if all this were wrong, we would still want to consider how many of those other outlets in Los Angeles are truly independent. We know that at least two are owned by RKO itself and three VHF television licensees are owned by the three major networks as flagship stations, as well as an unknown number of radio stations.
Second, none, repeat none,40 of the cases considering the diversification *716guides consider the fact that the owner has not imposed uniform expression of views in ruling on the application of the guides. To do so would run counter tc the oft stated maxim of antitrust law that one does not distinguish between “good” monopolists and “bad” monopolists in application of antitrust policy.41 Moreover, the Commission does not inform us how one defines uniform expression of views as opposed to local expression of views. To make the distinction raises very serious First Amendment questions indeed. Third, the Commission’s reference to restructuring of the broadcast industry is entirely gratuitous and conclusory since the diversification guides by their nature will cause restructuring if applied. The reference is thus no more than a bad humored attack on the existence of the guides.
The court affirms this bizarre, vertiginous reasoning by simply incanting it out loud and citing in support two of the leading cases upholding a strict application of the diversification guides. The court does not cite and shows no awareness of the multitude of Commission cases which are inconsistent with this reasoning, even though we have only recently reaffirmed the proposition that the Commission must follow its own precedent or explain why it has not42 One possible distinction of these precedents, not mentioned by the court, is that they all involve non-renewal comparative hearings. However, this distinction goes to the weight of a diversification preference in comparison with the past broadcast record of the renewal applicant and does not at all purport, in any case except this one, to affect the ascertainment of a diversification advantage in the first place. The Commission’s treatment of the diversification guides in this case truly illumines its intent in erecting the renewal expectancy mentioned in Parts A and B. Without *717any supporting reasoning to speak of, the Commission nullifies the diversification guides in comparative renewal hearings and the court, laboring valiantly, sweeps up behind it. And for what purpose we are never told.
Perhaps what underlies this extraordinary holding is the instinctive feeling that despite its substantial diversification advantage, Fidelity is not really that good an applicant. This feeling is apparently based on several comments of the Hearing Examiner to the effect that Fidelity’s lack of experience renders it suspect as a licensee.43 But it should be absolutely clear that no new voice will ever have experience; this is inherent in being new. And if it is an important communications policy to increase the number of diverse voices, speakers, in the telecommunications system, a goal frequently avowed, then we are just going to risk the mistakes of inexperience against the mistakes of a lack of diverse speakers. In any event, the issue cannot be dispositive on this appeal since the Commission did not expressly make it a ground for decision.44
D. Other Comparative Factors Misapplied By the Commission
The Commission’s mutilation of the diversification guides is, unfortunately, only indicative of its treatment of the other comparative factors. Again, as with the diversification guides, the manner in which the Commission removes Fidelity’s advantages or RKO’s disadvantages does not fully eliminate the existence of advantages and disadvantages. Rather, as I have said, that is performed by a failure to make a comparative decision.
The Commission takes its hatchet to the “integration of ownership into management” factor and here we get the stench of procedural bias. Fidelity, the Commission admits, has an obvious advantage in this factor. The Commission adduced these reasons for giving Fidelity no “preference” on the factor. First, the Commission notes that the managers of KHJ, while not owners, do have autonomous control of the station. This argument, of course, nullifies the factor and has never been considered to my knowledge in comparative evaluation of the “integration” factor.45 Even so, this argument says nothing about Fidelity’s advantage,' both through integration and through local ownership and does not even purport to weigh Fidelity’s advantage against RKO’s.
The Commission’s second argument is characterized in Fidelity’s brief as a “monstrous abuse of Fidelity’s right to due process.”46 This is, if anything, an understatement. The Commission discounts the viability of Fidelity’s integration proposal because of the unverified allegations in a Broadcast Bureau and RKO petitions to enlarge issues which *718were denied by the Commission47 Accepting these allegations, although Fidelity never had a chance to dispute them, the Commission states that they demonstrate an “unwillingness or inability to carry out its responsibilities as an applicant” and hence call into question Fidelity’s integration proposal. The allegations are that Fidelity was remiss in not informing the Commission that its stock subscription agreements were signed by agents of the owners, failing to secure prompt ratification of documents so signed and in failing to report for 17 months significant changes in the corporate structure of the company. How does the Commission leap from these allegations to the conclusion that Fidelity will not implement its integration proposal? There is no answer to this question in the Commission’s opinion. It hardly requires extended reflection to conclude that the allegations go to character but since no character issue was added to the hearing, consideration on that basis would be inappropriate.48 There is absolutely no demonstrated relation between the allegations and a possible inability to implement the integration proposal. The Commission was arbitrary in the extreme in suggesting (but never overtly stating) that there was. And, of course, even if the relation existed, it would not eliminate Fidelity’s advantage in any comparative evaluation but would only affect its weight.
The court wisely ignores this second half of the Commission’s butchering of the integration factor. Instead the court returns to the rationale of the Hearing Examiner who held that Fidelity’s integration proposal could not be implemented because the management-owners had no broadcast experience. Apparently, neither the court nor the Hearing Examiner consulted the 1965 Policy Statement which advises us this way on that issue: 49
Previous broadcast experience, while not so significant as local residence, also has some value when put to use through integration of ownership and management. . . . Since emphasis upon this element could discourage qualified newcomers to broadcasting and since experience generally confers only an initial advantage (Lack of experience, unlike a high concentration of control, is remedial . . .), it
will be deemed of minor significance. This, of course, does not dispose of contentions that an integration proposal can not be implemented but it does call into doubt all the confident assertions by the Hearing Examiner that Fidelity’s plan is a “foolish piece of business.”50 And it must be remembered that Fidelity’s proposal was only that a Mr. Simon, a 20% stockholder, would be President and General Manager, and that a 2% stockholder would be director of public service programming. The rest of the staff *719would be professional broadcasters. In any event, the court has no authority to affirm the Commission on a ground it itself did not offer. The affirmance is clearly wrong on this point.51
We next come to the Commission’s treatment of the character issue set down against RKO because of its admitted reciprocal dealings, a violation of Section 5 of the Federal Trade Commission Act and Sections 1 or 2 of the Sherman Act.52 I simply do not have the space, time or energy to describe the procedural minefield the Commission laid for Fidelity on this point and the numerous backings and fillings, shifting of ground, in the years the Commission sought to avoid consideration of this obvious comparative and non-comparative issue. Suffice it to list the admitted facts after the dust had settled. The Commission found that on the basis of an extremely myopic view of the evidence RKO’s reciprocal dealing violations were limited to mutual patronage situations. It then concluded that such reciprocal dealings were not at that time clearly illegal under the antitrust laws and thus the Commission would not charge RKO with “knowing and willful misconduct.”53 Furthermore, since many corporations have engaged in such violations, since RKO is presently under an injunction in regard to such practices and since RKO has an “unblemished” record as a broadcaster for 25 years, the Commission will not assess a comparative demerit.54 The court in affirming takes a slightly different tack. The court independently concludes, without the aid of either the Hearing Examiner or the Commission, that “most” of the reciprocal dealings were ineffective and those that were effective “have little to do with RKO.” 55 The court recognizes that reciprocal dealing was declared illegal in 1965 at a minimum and probably much earlier, thus implicitly discounting the Commission’s logic.56 On the basis of this analysis, the remark that “KHJ was only a small part of what went on” and the clearly incorrect assertion that “antitrust considerations are only one segment of the Commission’s concern with the character”, the court holds the FCC did not act arbitrarily.57
The court is clearly mistaken in its assertions about the nature of the reciprocal dealings. Both the Commission and the Hearing Examiner found completed acts of at least mutual patronage involving KHJ that resulted in significant advertising revenues to the station.58 These acts clearly violate Section 5 of the Federal Trade Commission Act and at least after 1965, violate the Sherman Act.59 The Commission is ex*720pressly commanded to enforce the antitrust laws against licensees.60 Even beyond this, use of reciprocal dealing to obtain advertising reduces the incentive to meet the needs of the public since advertising is garnered by economic power and not successful competition.61 When one considers the fact that RKO was found to have engaged in overcom-mercialization,62 the seriousness of the *721reciprocal dealings in terms of the policies of the Federal Communications Act is manifest. And if one refers back to the strained arguments of the court and Commission on the diversification point, it is clear enough that economic concentration in both media and non-media areas should count very heavily against RKO if not provide a basis for disqualification. The Commission’s failure to even weigh the issue at all in the comparative process is only one more indication that the Commission did not in fact engage in a comparative decision. And what are we to make of the court’s statement that KHJ was only a small part of RKO’s antitrust violations? This argument seems to support a conclusion opposite from that drawn by the court. The holding on this issue is truly extraordinary.
In terms of procedural unfairness to Fidelity, the preceding instances are unfortunately not exclusive. In its treatment of the programming issues suggested by Fidelity, the Commission continued to avoid a comparative evaluation through controversial procedural decisions.
II. The Commission Improperly Denied A Hearing on Fidelity’s Specialized Programming Issue
A. Fidelity’s Petition to Enlarge Issues to Consider Programming
A major factor motivating Fidelity’s application for Channel 9 was its belief that communities in Orange County and southern Los Angeles do not receive sufficient attention from television stations in Los Angeles proper. The owners of Fidelity believed Channel 9 could be programmed in such a manner as to meet what they perceived to be the unfulfilled communications needs of the “South-land.” Since programming issues will not be considered in a comparative hearing unless they are specifically set down by the Commission,63 Fidelity filed on June 27, 1966, a petition to enlarge the issues at the comparative hearing. The petition requested in the alternative that the Commission set down a § 307(b) issue in regard to the need of the South-land for an allocated television station or an issue as to Fidelity’s “service philosophy”, its desire to pay special attention to the needs of the Southland. Fidelity also requested a general programming issue on the basis of its allegations that it would devote substantially more time to news and local affairs than had RKO. This petition was accompanied by an extensive ascertainment survey of 1,200 community leaders and involving over 6,000 telephone calls and meetings with public officials and community organizations.
The Commission rejected the petition. Its finding on the § 307(b) issue is acceptable. I would also affirm its holding denying a general programming issue since Fidelity’s petition alleged no facts in regard to the need for greater local or news programming in general. The Commission has since 1965 become increasingly strict about the relation of the ascertainment survey to general differences in percentage of news and local affairs programming because of its concern that applicants were engaging in “promise” battles to obtain a license.64 As I will discuss in Part B below, there are First Amendment considerations which support this approach.
But I perceive no basis at all for the Commission’s refusal to accord Fidelity a hearing on its “service philosophy” issue. Fidelity’s “service philosophy” is merely a form of specialized programming designed to meet the alleged needs of an underserved portion of a particular service area. The Commission has granted a significant comparative preference on the basis of “service philosophy” in Central Coast Television, 35 F.C.C. 859 *722(1963), clearly the model for Fidelity’s petition, and has granted comparative preferences on the basis of specialized programming in other cases.65 This court in Citizens Committee to Save WEFM v. FCC, 165 U.S.App.D.C. 191, 506 F.2d 252 (1974) (en banc) reversed a Commission order denying a hearing into a specialized programming issue in a license assignment context and strongly indicated that the Commission could not ignore its responsibility to ensure a diversity of formats in a service area.66
The Commission’s Review Board denied Fidelity’s proposed “service philosophy” issue for these reasons. First, Fidelity has neither alleged nor shown that the Southland is more underserved than other parts of the service area. Second, Fidelity has not made “factual allegations” that it will not ignore the remainder of the service area. Third, there is no indication that the community leaders surveyed have sought and refused television time. Fourth, Fidelity has not shown a need for the programs directed to the Southland.67
The first three reasons are utterly devoid of rational content. What possible relevance is there in the fact that other areas of Los Angeles may be as under-served as the Southland? Such an argument defeats every specialized programming issue. The argument is implicitly rejected by WEFM. A similar point may be made about the third reason. Does the Commission seriously expect proponents of specialized programming to prove that their listeners have unsuccessfully sought other broadcasters to carry the specialized programming? And how can the Commission hold Fidelity to the actions of community leaders when those leaders expressly state that there are local needs not being served by present communications outlets?
But the second “reason” deserves more scrutiny. Fidelity expressly states in its petition that if the § 307(b) issue is denied, it will serve the entire service area with particular attention to the needs of the Southland.68 The Commission says this assertion is not backed by “factual allegations.” What factual allegations does the Commission want? Even if some answer to this riddle would appear, and none does, at the very least the Commission should have requested further data (what data would be relevant, I do not know) or provided Fidelity with an opportunity to amend their petition after being informed of what facts the Commission thought were relevant. It must be remembered that Fidelity’s petition seeks to merely obtain a hearing and that it offers proposed programming with the express allegation that the proposed programming will serve the entire service area. What more could the Commission want before ordering a hearing?
The court attempts to affirm this second reason by altering the Commission’s rationale. Where the Commission had complained of a lack of factual allegations to support the contention that the entire service area would be covered, the court states that the Commission’s decision is controlled by Petersburg Television Corp., 19 F.C.C. 451, 464—65 (1954). The court, noting a fact not mentioned by the Commission, states that Fidelity’s list of interviewees contained only three interviews in Los Angeles proper; thus Fidelity “could ... be found to have ignored the actual city of license in its planning” as was found in Peters-burg. It is certainly true that the Commission does cite Petersburg for its hold*723ing — that a comparative demerit is awarded against an applicant who ignores a portion of its service area in formulating proposed programming — but it is equally clear that the Commission did not and could not have relied on that case to support its holding sub judice for the simple reason that the decision in Petersburg came after a complete hearing into the programming issue. The Commission in Petersburg found on the basis of one applicant’s ascertainment survey, testimony and other evidence that the applicant ignored a portion of the service area in formulating its proposed programming. In this case, Fidelity’s ascertainment survey was never introduced into evidence because no hearing was ever held. Fidelity was given no opportunity to contradict the court’s factual finding about its intentions. Indeed, the court’s citation of evidence ignores the fact that Fidelity also placed many thousands of telephone calls and sent many letters other than the interviews cited in its petition.69 We do not know to whom those queries were directed because no hearing was ever held. The Commission, of course, avoided this issue by not, repeat not, referring to any inadequacies in Fidelity’s ascertainment survey and instead simply stating that Fidelity had not made any factual allegations that it would in fact service the entire area. And, as I have argued, that holding may not be sustained. The court’s finding of fact, couched in terms of what “could have been found”, is clearly erroneous.
I conclude that these first three reasons are largely make weight. The fourth reason is the more serious since it incorporates the Commission’s policy of correlating ascertainment efforts with proposed programming in order to put down a programming issue. Apparently, the FCC’s position was that the data stated in Fidelity’s petition did not support its specialized programming proposal since the ascertainment survey did not identify any community problems or needs to which that programming would relate. The most cursory reading of Fidelity’s petition indicates that it has offered substantial proof that little if any television programming in Los Angeles is directed to the local interests of the Southland. I do not understand the Commission to dispute this. Rather, the argument is that the ascertainment survey has no evidence on what those local interests are and why they require a telecommunications outlet. This requirement, as noted previously, originated in Commission attempts to control “promise” battles among applicants in regard to percentages of local affairs and news programming. Its rationale is seemingly not applicable in a “service philosophy” specialized programming issue since the *724Commission would surely presume that a local community has some telecommunications needs.70 The whole allocations policy of the FCC, based on the perhaps mythical concept of “local service”, is premised on that view; The only issue then is whether the area to which the “service philosophy” is directed is in fact a distinct local community. After WEFM at least, I think the evidence in the ascertainment survey on the local interests of the Southland is sufficient to raise a substantial issue of fact on that question.71 A review of Commission precedent in general on specialized programming hearings supports this conclusion.72
The court does not consider this issue of the ■ relation of Fidelity’s ascertainment survey to its specialized programming proposal, apparently content to rest its affirmance on the deficiencies it “finds” in Fidelity’s survey even though that survey was not introduced in evidence and no hearing was held on it. The court does attempt to affirm a related Commission decision to deny Fidelity an opportunity to amend its petition after the Commission reformulated its pleading standards • for proposed programming issues in Chapman Radio & Television Co., 7 F.C.C.2d 213 (1967). The court advises us that since it has “found” Fidelity’s ascertainment survey inadequate, Fidelity could gain nothing from revising its petition in light of Chapman since its original survey was thus inadequate.73 The Commission did not take this approach, of course, because the ascertainment survey was not in the record. Rather it refused to permit Fidelity to revise its petition because it interpreted Fidelity’s petition for reconsideration as declaiming any desire to amend the original petition and as nothing more than a restatement of its substantive argument that an issue should have been set down.74 This conclusion, however, is no less extraordinary than the court’s since why else would Fidelity seek relief after Chapman if it did not at least think it could amend its petition to *725conform with Chapman and since Fidelity could not have complied with Chapman as that decision was not issued until after Fidelity’s original petition was denied. So, the Commission changes the law on allegations of ascertainment and denies Fidelity a chance to comply because it assumes that Fidelity is not really able to comply. This reasoning does little to command our respect. I conclude that at the very least Fidelity should have been given an opportunity to revise its petition in light of Chapman.
B. First Amendment Implications of Consideration of Program Content
Consideration of Fidelity’s proposed specialized programming issue and also of RKO’s past performance in programming Channel 9 in making a comparative decision raises significant First Amendment problems. I have discussed those problems at length previously75 and intend here to only outline the tentative conclusions I have reached. The FCC may in a comparative hearing consider whether a particular programming proposal will meet an unfulfilled community need and hence increase the overall diversity of programming in the viewing market. I take this to be a rather limited examination of program content and one which is consistent with Fidelity’s specialized programming proposal. As I indicated previously, I am not comfortable with this conclusion but perceive no other possible result considering the present system of broadcast regulation.76
Far more difficult problems are encountered when one turns to the Commission’s scrutiny of RKO’s past programming. In this case, RKO was awarded neither a preference, or renewal expectancy nor a demerit because of its past programming. Fidelity vigorously challenges this conclusion, arguing that the evidence indicates that RKO should have been given a substantial demerit for past programming. This evidence tends to prove that RKO programmed very little news or local affairs, engaged in excessive commercialization and largely utilized old movies dealing with crime and violence.77 I have no difficulty with a consideration of excessive commercialization in the decision whether to grant a renewal expectancy or a demerit.78 As for the remainder of RKO’s past programming, I am constrained to hold that the Commission may award a preference or demerit on the basis of a significant amount of actual journalism by the licensee without regard to the content of that journalism. I think this holding may be premised on those decisions erecting a Fairness obligation to report on controversial issues of public importance.79 I am not pres*726ently informed, however, of any justification for review of the content of entertainment programming. Absent further explanation from the Commission, I would not think it proper to award a preference or a demerit on that basis. Since the Commission’s decision is unclear on this point, I would remand for further consideration.80 On the remand, the Commission could, of course, consider the extent to which RKO’s entertainment programming meets unfulfilled community needs and hence contributes to overall diversity in making a comparative evaluation. Any renewal expectancies would of necessity be generated by this process of comparison. I realize this is an imperfect approach to the problem of permissible renewal expectancies; perhaps much more inclusive consideration of. program content is required in order to securely grant a significant renewal expectancy. I simply do not know of any other approach. The Commission presently has the matter under advisement in a rulemaking proceeding.81 Perhaps it will provide us with some guidance in this difficult area. For the time being, I think this case should be remanded on the programming issue.
III. Conclusion
Former Commissioner Johnson, dissenting, stated that the “decision, granting RKO’s renewal application for KHJ— TV in Los Angeles, may very well be the worst decision of this Commission during my term of seven years and five months.” 82 Despite the intense competition for this honor, I am constrained to agree. The decision is so bad not because the Commission’s substantive holding is wrong — although I have little doubt that it is — but because the fiercely technical and mechanical treatment of Fidelity’s meritorious claims and the pervasive result-oriented reasoning completely strip off any veneer of rationality attaching to the comparative licensing decision. There is only one operative part of the Commission’s decision. I quote it in full: “IT IS ORDERED: (d) That the application of RKO General, Inc. for renewal of license ... IS DEEMED TO BE GRANTED . . .”83 The rest of the opinion is superfluous. It is wholly appropriate that the deciding vote was east by Chairman Burch who simply concurred in the result. It would be easy to be alarmist about this decision, but I suppose that would be unwarranted.. The same ability to bulldoze through administrative precedent that marks this case for unwanted distinction will be, I am sure, turned against the case itself. Perhaps it is this capacity for forgetfulness that enables the Commission to motor right along while I remain baffled and amazed at the turn of events in these comparative cases. T suppose I am naive to expect anything different.
But I remain curious as to why the court labors so valiantly to affirm this *727“foolish piece of business.” The irrationality of the comparative hearing process has certainly been publicized enough by quite moderate observers.84 Perhaps the court is of the opinion that this is not the “right case” to correct the irrationality of the comparative hearing process. The court’s “clarification” of its original opinion suggests as much by repeated references to what it obviously has concluded are Fidelity’s weaknesses as a licensee. The central weaknesses that the court perceives are that doubts have been raised as to Fidelity’s candor and that its “service philosophy” is really an “artificial construct.” I never would have believed the court would be so unfair to a litigant before it. Both of these points were not in issue before the FCC since the Commission expressly refused to put down an issue as to each. With absolutely no record on the candor of Fidelity or the bona fides of its specialized programming proposal, the court leaps to extraordinary conclusions. The “service philosophy” issue was patterned directly on a prior Commission decision. We may disagree on whether it fits the pattern, although there never was a hearing to find out, but to name it an “artificial construct” requires more righteousness and certitude than I can summon. The candor issue pertains to Fidelity’s alleged failure to inform the Commission that some of its stock subscription agreements were signed by agents of the subscriber; and Fidelity’s alleged failure to inform the Commission of certain changes made in its corporate structure. We have nothing, absolutely nothing, in this record to indicate that either existed or that they were more than technical or clerical errors. The fact that the Commission refused to set down an issue on the point certainly tells us something about the substantiality of the court’s new found candor issue.
The court also points to the Hearing Examiner’s colorful language describing Fidelity’s lack of experience in broadcasting. No financial issue was put down against Fidelity. As I indicated previously, if lack of experience is a disqualification — and the Commission certainly did not, repeat did not, suggest that it was even a demerit — we might as well do away with the diversification guides. Let the networks own all the licenses; they have proven experience. The Hearing Examiner’s penchant for hyperbole on the integration factor obscures the modesty of Fidelity’s proposal and the express statement in the 1965 Policy Statement that past experience is not all that significant in weighing the integration factor. And, of course, the Commission took a completely different tack than did the Hearing Examiner in arguing that the integration proposal of Fidelity could not be implemented. The Hearing Examiner’s rhetoric has absolutely no decisional significance. And all the court’s enthusiasm for the Hearing Examiner obscures the fact that the Examiner recommended that the license be granted to Fidelity.
The court’s characterization of Fidelity as a “nothing” applicant constitutes apparently a flailing effort to avoid what is clearly a dangerous precedent in comparative hearings. The ironic truth is that the court need not clutch at such straws since we can be sure the Commission will manage to erect some ethereal distinction of this case that will prevent it from becoming a precedent in non-renewal comparative cases. But the court’s characterization of Fidelity as a “nothing” applicant raises the question in my mind as to what the court would desire from a “something” applicant. Here Fidelity has an important diversification advantage which it seeks to translate into a specialized programming proposal; it seeks to modestly integrate ownership into management and is locally owned. It appears to me that this is exactly the kind of application which we should find to be “something” indeed, a truly new voice in the highly concentrat*728ed telecommunications industry. Apparently the court requires experience in order for the applicant to be “something” but as I have said again and again in this statement and elsewhere, primary emphasis on past experience will forestall new entrants into the broadcasting field. And as we have said before, prior broadcast experience unlike concentration of control is remedial.85 Perhaps the importance of Fidelity’s application would be more apparent to the court if Fidelity had included members of minority groups among its stockholders.86 The court seems antagonistic to Fidelity because its proposals promise much, as if the very making of a promise is suspect, a mere ploy to swipe an incumbent’s license. But Fidelity has no alternative but to promise since it is a newcomer. Once more the court seems to place an excessive premium on past broadcast experience.
Perhaps what makes the court’s opinion so difficult for me is the realization that this debate between diversification and past experience is a repetition of a battle I thought had been fought and won long ago. In 1958, seventeen years past, I criticized the Commission thus: 87
I think that by . attributing to these by-products of concentration [e. g. past experience] a greater degree of importance than it attributes to the traditional, and antipodal, preference for decentralization of ownership of the mass media of communication, the Commission has effectively nullified the diversification and anti-monopoly policy long since recognized as ‘one of the basic underlying considerations in the enactment of the Communications Act.’
There may be cases in which the Commission can properly find that experience resulting from an applicant’s ownership of communications facilities offsets a competing applicant’s freedom from ownership of other communication interests. But ‘Commission expertise alone cannot support so pivotal (a divergence)’ from basic communications philosophy. A convincing explanation is required.
I do not think either the court or the Commission offers such an explanation. Rather we are regaled with all the advantages of experience and all the advantages of diversification are quietly but securely swept under the rug.
As with the last battle, this repetition of it will be won or lost by future appointments to the Federal Communications Commission and whether those appointments arrive, like those in the early 1960’s, with a desire to reduce the concentration of control of the telecommunications industry. But what do we say to the owners of Fidelity in the meantime?
This question is not merely personal. Reliance on judicial techniques of reasoned judgment lends to the comparative decision process an expectation of rationality and predictability. Perhaps naively, the owners of Fidelity relied on that expectation and spent a good deal of money in the process of that reliance. Fidelity, too, is entitled to its “challenge expectancies” of a fair and rational comparative process. I simply cannot believe that serious students of communications policy would conclude that expectation has been fulfilled in this case.
This injustice leads me to further question whether we ought not give up the pretense that the comparative evalu*729ation is a rational process but is instead a “legislative” type decision which may be made on the basis of any reasons or no reasons, perceived dimly or not at all by the decision-maker.88 If we fail to take this approach and yet continue to affirm cases such as the one sub judice, we will only be leaning together the shards of a rotten building through the legitimation of appellate review. If we adopt an approach more compatible with the Commission’s present posture and give up the illusion of serious appellate review, we will at least be aware of the choices we face in this difficult area of policy, implicating both the values of protection of small business and free enterprise in a competitive system.89 And we will thereby displace any expectations of rationality possibly held by challengers and renewal applicants alike. Any other approach may give us the illusion that all is well, that the choices may be handled within the present rational structure, when in fact we know, from this case at least, that no such rational structure exists.
. In para. 33, the Commission stated that there was a “repeated failure to make timely and necessary reports of new developments affecting a proposal.” It noted that “this practice continued even after its attention was directed to the need to keep its house in order.” It concluded “we believe that the record here gives little promise that Fidelity will effectively implement its paper integration promises . . . .” (JA 19-20).
. Even as of 1973, this was not a ruling that excluded all newcomers. Even a newcomer to TV can make a presentation built on the experience of at least one or two key stockholders identified with management, on a reasonably bona fide and practicable approach, the kind presented by at least one applicant in the much-discussed WHDH case, see Greater Boston TV Corp. v. FCC, infra, 143 U.S.App.D.C. at 405, 444 F.2d at 863.
. See Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 850-52 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971); WAIT Radio, Inc. v. FCC, 135 U.S.App.D.C. 317, 418 F.2d 1153 (1969), on subsequent appeal, 148 U.S.App.D.C. 179, 459 F.2d 1203 (1972); Star Television, Inc. v. FCC, 135 U.S.App.D.C. 71, 416 F.2d 1086, 1089, cert. denied, 396 U.S. 888, 90 S.Ct. 171, 24 L.Ed.2d 163 (1969) (Leventhal, J., dissenting). Compare note 87 infra.
. See RKO General, Inc., 31 F.C.C.2d 70 (1971).
. The history of the extraordinary delay in this case is discussed in Fidelity Television, Inc. v. FCC, 163 U.S.App.D.C. 441, 502 F.2d 443 (1974).
. RKO General, Inc., 44 F.C.C.2d 123 (1973).
. Id. at 136-37 (emphasis added).
. 169 U.S.App.D.C. pages -, -, 515 F.2d pages 702 (emphasis added).
. RKO General, Inc., 44 F.C.C.2d 123, 133 (1973). Presumably, if the Commission had in fact made a comparative decision, RKO’s past record would be entitled to some weight in comparison with Fidelity’s advantages.
. 169 U.S.App.D.C. pages -, -, 515 F.2d pages 699, 700. At - U.S.App.D.C. at page -, 515 F.2d at 700, the court makes the rather opaque statement that RKO’s past performance as a licensee in the areas of integration, diversification and local ownership as well as past programming performance are to be considered as part of the renewal applicant’s past performance. This statement is confusing. Of course, the renewal applicant’s proposal, as well as a new applicant’s proposal, will be scrutinized and compared on the above-mentioned factors. But such factors have no significance in regard to a renewal expectancy engendered by past performance. And, of course, RKO’s “past performance” on those factors is dreary indeed.
. See RKO General, Inc., 44 F.C.C.2d 123, 130-33 (1973); 169 U.S.App.D.C. pages -, -, 515 F.2d pages 699-700.
. See 47 U.S.C. §§ 301; 304; 307(d); 309(h)(1) (1970), quoted and discussed Citizens Communications Center v. FCC, 145 U.S.App.D.C. 32, 447 F.2d 1201, 1209 n.23 (1971).
. Hyde, FCC Policy and Procedures Relating to Hearings On Broadcast Applications in Which a New Applicant Seeks to Displace A Licensee Seeking Renewal, 1975 Duke L.J. 253, 256-61. See also Citizens Communications Center v. FCC, 145 U.S.App.D.C. 32, 447 F.2d 1201, 1207-08 (1971); Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 854-858 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971); WOKO, Inc. v. FCC, 80 U.S.App.D.C. 333, 153 F.2d 623, 629-30, rev’d on other grounds, 329 U.S. 223, 67 S.Ct. 213, 91 L.Ed. 204 (1946). Compare these statements with FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 475, 60 S.Ct. 693, 84 L.Ed. 869 (1940); Crowder v. FCC, 130 U.S.App.D.C. 198, 399 F.2d 569, 571, cert. denied, 393 U.S. 962, 89 S.Ct. 400, 21 L.Ed.2d 375 (1968); Transcontinental Television Corp. v. FCC, 113 U.S.App.D.C. 384, 308 F.2d 339, 341-42 (1962); American Broadcasting Co. v. FCC, 89 U.S.App.D.C. *709298, 191 F.2d 492, 496-97 (1951), quoting Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 331-32, 66 S.Ct. 148, 90 L.Ed. 108 (1945); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 137-38, 60 S.Ct. 437, 84 L.Ed. 656 (1940); L. B. Wilson, Inc. v. FCC, 83 U.S.App.D.C. 176, 170 F.2d 793, 798 & n.5 (1949).
. Policy Statement Concerning Comparative Hearings Involving Regular Renewal Applicants, 22 F.C.C.2d 424, recon. denied, 24 F.C.C.2d 383 (1970).
. Citizens Communications Center v. FCC, 145 U.S.App.D.C. 32, 447 F.2d 1201, 1212 (1971), citing Johnston Broadcasting Co. v. FCC, 85 U.S.App.D.C. 40, 175 F.2d 351, 356-57 (1949).
. 447 F.2d at 1213 & n.35.
. See Formulation of Policies Relating to the Broadcast Renewal Applicant, 31 F.C.C.2d 443, 444 & n.1 (1971), mandamus denied, Citizens Communications Center v, FCC, 149 U.S.App.D.C. 419, 463 F.2d 822 (1972) referencing Formulation of Policies Relating to the Broadcast Renewal Applicant, 27 F.C.C.2d 580, 582 (1971) and Policy Statement Involving Regular Renewal Applicants, 22 F.C.C.2d 424, 425 & n.1 (1970). See also A. H. Belo Broadcasting Corp., 40 F.C.C.2d 1131 (1973), on further proceedings, 47 F.C.C.2d 540 (1974); Moline Television Corp., 31 F.C.C.2d 263 (1971).
This kind of renewal expectancy is supported by the various statements of this court on the issue. See, e. g., Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 854, 859 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971); Office of Communications of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994, 1007 (1966).
. See p. 6 & nn. 7-9, 169 U.S.App.D.C. page - & nn. 7-9, 515 F.2d pages 690-692 & nn. 7-9. supra.
. Compare Formulation of Policies Relating to the Broadcast Renewal Applicant, 27 F.C.C.2d 580, 582 (1971) with RKO General, Inc., 44 F.C.C.2d 149, 161, 173-77 (1969) (Hearing Exam.) (discusses in detail RKO’s programming in the various categories of programming identified in Network Programming Inquiry, 25 Fed.Reg. 7291 (1960)). The court, 169 U.S.App.D.C. at page - n.36, 515 F.2d page 699 n.36, makes the assertion that the Hearing Examiner “expressed the belief” that RKO would have met standards of “substantial service” if they had existed. However, reference to the Examiners opinion, 44 F.C.C.2d at 228, reveals that this was no more than an expression of confidence that RKO would have upgraded its station to meet the established standards, if such standards had existed, and is not any suggestion, much less a holding, that RKO engaged in substantial service within the intendment of the 1971 proposed guidelines.
. See Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394, 395-98 (1965).
. See Terre Haute Broadcasting Corp., 25 F.C.C.2d 348, 353-55 (1970).
. See, e. g., Star Television, Inc. v. FCC, 135 U.S.App.D.C. 71, 416 F.2d 1086, cert. denied, 396 U.S. 888, 90 S.Ct. 171, 24 L.Ed.2d 163 (1969) aff’g Flower City Television Corp., 9 F.C.C.2d 249, recon. denied, 10 F.C.C.2d 718 *711(1967); Community Broadcasting Corp. v. FCC, 124 U.S.App.D.C. 230, 363 F.2d 717 (1966); Tennessee Television, Inc. v. FCC, 104 U.S.App.D.C. 316, 262 F.2d 28 (1958); Pinellas Broadcasting Co. v. FCC, 97 U.S.App.D.C. 236, 230 F.2d 204, cert. denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956); W. S. Butterfield Theatres, Inc. v. FCC, 99 U.S.App.D.C. 71, 237 F.2d 552 (1956).
. Johnston Broadcasting Co. v. FCC, 85 U.S.App.D.C. 40, 175 F.2d 351, 357 (1949).
. See Garrett v. FCC, 168 U.S.App.D.C. 266, 513 F.2d 1056 (1975); Columbia Broadcasting System, Inc. v. FCC, 147, U.S.App.D.C. 175, 454 F.2d 1018, 1026 (1971); see also Local 814, Teamsters v. NLRB, 167 U.S.App.D.C. 387, 512 F.2d 564, 571-72 & n.15 (1975) (Bazelon, C. J. concurring in part, dissenting in part) and authorities cited.
. RKO General, Inc., 44 F.C.C.2d 123, 137 (1973).
. This point might, at first glance, appear too attenuated. If the reader has this reaction, I would suggest a comparison between the cases cited in note 20 supra and the discussion in Parts C and D infra in regard to their treatment of relative “preferences” and “demerits.” Reference may also be made to Mid-Florida Television Corp., 33 F.C.C.2d 1, 9-10, 21, review denied, 37 F.C.C.2d 559 (1972), rev’d on other grounds, TV 9, Inc. v. FCC, 161 U.S.App.D.C. 349, 495 F.2d 929 (1973), cert. denied, 419 U.S. 986, 95 S.Ct. 245, 42 L.Ed.2d 194 (1974). The Commission clearly could have made a comparative decision but simply did not.
. See authorities cited notes 10-11 supra,
. 447 F.2d at 1214.
. Id. at 1213 n.36.
. Terre Haute Broadcasting Co., 25 F.C.C.2d 348, 353-55 (1970); Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394 (1965). See WHDH, Inc., 16 F.C.C.2d 1, 12-13, on recon., 17 F.C.C.2d 856 (1969), aff’d, Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 859-60 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971); Lorain Community Broadcasting Co., 13 F.C.C.2d 106, 114, recon. denied, 14 F.C.C.2d 604, rehearing denied, 15 F.C.C.2d 388 (1968), review denied, 18 F.C.C.2d 686 (1969), aff’d, Allied Broadcasting, Inc. v. FCC, 140 U.S.App.D.C. 264, 435 F.2d 68, 69 (1970); Ultravision Broadcasting Corp., 11 F.C.C.2d 394, 410-11 (1968), aff’d, WEBR, Inc. v. FCC, 136 U.S.App.D.C. 316, 420 F.2d 158 (1969). See generally TV 9, Inc. v. FCC, 161 U.S.App.D.C. 349, 495 F.2d 929, 938 (1973), cert. denied, 419 U.S. 986, 95 S.Ct. 245, 42 L.Ed.2d 194 (1974).
. See Hale v. FCC, 138 U.S.App.D.C. 125, 425 F.2d 556, 562 & n.2 (1970) (Tamm, J. concurring); Bennett, Media Concentration and the FCC: Focusing with a Section Seven Lens, 66 Nw.U.L.Rev. 159, 181-86 (1971). See also R. Noll, M. Peck & J. McGowan, Economic Aspects of Television Regulation 15-16, 104-06 (1973); House Comm. on Interstate and Foreign Commerce, Report on Network Broadcasting, H.R.Rep. No. 1297, 85th Cong., 2d Sess. 559-75 (1958); Barnett, Cable Television and Media Concentration, Part I, 22 Stan.L.Rev. 221 (1970). Failure to grant significant weight to a diversification advantage in a comparative renewal hearing would tend to entrench this present pattern of concentration of control by eliminating the prospect of potential competition on the edge of the market. Elimination of this “edge effect” has been one factor that has weighed heavily in more recent anti-trust case law. See United States v. Marine Bancorporation, Inc., 418 U.S. 602, 623-41, 94 S.Ct. 2856, 41 L.Ed.2d 978 (1974); United States v. Falstaff Brewing Corp., 410 U.S. 526, 532-37, 93 S.Ct. 1096, 35 L.Ed.2d 475 (1973) and sources cited. If one inspects the Los Angeles viewing and advertising market for VHF and daily newspapers (on this definition of the relevant market, see Multiple Ownership of Standard, FM and Broadcast Television Stations, 50 F.C.C.2d 1046, 1056, 1077, 1083 (1975)), one finds seven VHF television stations and two daily newspapers, a total of nine competitors. Elimination of the threat of potential competition from a market structured in this manner would surely fall within the rule of the cases cited previously on “edge effect,” although the elimination of potential competition does not occur in a merger context.
. See Citizens Comm. to Save WEFM v. FCC, 166 U.S.App.D.C. 191, 209-211, 506 F.2d 252, 270-72 (1974) (Bazelon, C. J., concurring in the result); TV 9, Inc. v. FCC, 161 U.S.App.D.C. 349, 495 F.2d 929, 937-38 (1973), cert. denied, 419 U.S. 986, 95 S.Ct. 245, 42 L.Ed.2d 194 (1974); Multiple Ownership of Standard, FM and Television Broadcast Stations, 50 F.C.C.2d 1046, 1048 (1975) and id. at 1116, 1119 (Robinson, Comm’r, concurring in part, dissenting in part), citing Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945).
. See Bazelon, FCC Regulation of the Telecommunications Press, 1975 Duke L.J. 213, for a complete discussion of this point.
. Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394-95 (1965).
. The FCC asserts that another stockholder of Fidelity of an unstated interest has a 26% interest in a corporation publishing “newspapers” in the Los Angeles suburbs. RKO General, Inc., 44 F.C.C.2d 123, 133 (1973). The court properly holds that the Commission committed error in considering this “fact” since Fidelity was denied a hearing on its assertion that these “newspapers” were simple advertising “throwaways.” 169 U.S.App.D.C. page - n.42, 515 F.2d page 701 n. 42.
. RKO General, Inc., 44 F.C.C.2d 123, 133-34 (1973).
. See Terre Haute Broadcasting Corp., 25 F.C.C.2d 348, 349, 350-51 (1970); WHDH, Inc., 16 F.C.C.2d 1, 12-13, recon. denied, 17 F.C.C.2d 856 (1969), aff’d, Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 859-60 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971); Ultravision Broadcasting Corp., 11 F.C.C.2d 394, 410-11 & n.29 (1968), aff’d, WEBR, Inc. v. FCC, 136 U.S.App.D.C. 316, 420 F.2d 158 (1969). While ultimately not awarding the license to the applicant with the diversification advantage, the Commission affirmed the prop*715osition that other media outlets only discount the diversification preference and do not at all eliminate it in Mid-Florida Television Corp., 33 F.C.C.2d 1, 9-10, recon. denied, 37 F.C.C.2d 559 (1972), rev’d on this ground in part for failure to give complete consideration to diversification, TV 9, Inc. v. FCC, 161 U.S.App.D.C. 349, 495 F.2d 929 (1973), cert. denied, 419 U.S. 986, 95 S.Ct. 245, 42 L.Ed.2d 194 (1974), citing Flower City Television Corp., 9 F.C.C.2d 249, 254, recon. denied, 10 F.C.C.2d 718 (1967), aff'd, Star Television, Inc. v. FCC, 135 U.S. App.D.C. 71, 416 F.2d 1086, cert. denied, 396 U.S. 888, 90 S.Ct. 171, 24 L.Ed.2d 163 (1969). See also Brandywine-Main Line Radio, Inc. v. F. C. C., 153 U.S.App.D.C. 305, 473 F.2d 16, 28 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973) (only inquiry under Fairness Doctrine is balance within a licensee’s own programming and not in the viewing market as a whole).
. See cases cited note 35 supra.
. Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394-95 (1965).
. Billy T. Pirtle, 43 F.C.C.2d 670, 671 (1973), citing Snake River Valley Television, Inc., 26 F.C.C.2d 380 (1970). See Alvin L. Korngold, 45 F.C.C.2d 1, 4-5 (1974); The News-Sun Broadcasting Co., 24 F.C.C.2d 770, 775—76 (1970); East St. Louis Broadcasting Co., 19 F.C.C.2d 289, 292-93 (1969). See also McKenney v. FCC, 116 U.S.App.D.C. 412, 324 F.2d 444 (1963); McClatchy Broadcasting Co. v. FCC, 99 U.S.App.D.C. 195, 239 F.2d 15 (1956), cert. denied, 353 U.S. 918, 77 S.Ct. 662, 1 L.Ed.2d 665 (1957) (in these cases the court affirmed Commission actions awarding a comparative demerit against an applicant with media ties outside of the service area.) See generally Clarksburg Publishing Co. v. FCC, 96 U.S.App.D.C. 211, 225 F.2d 511, 518 (1955).
. See Multiple Ownership of Standard, FM and Television Broadcast Stations, 50 F.C.C.2d 1046, 1049 (1975); Multiple Ownership of Standard, FM and Television Broadcast Stations, 22 F.C.C.2d 306 (1970), on recon., 28 F.C.C.2d 662 (1971); Multiple Ownership of Standard, FM and Television Broadcast Stations, 18 F.C.C. 288 (1953), mod. Storer Broadcasting Co. v. United States, 95 U.S.App.D.C. 97, 220 F.2d 204 (1955), reinstated, 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081, affirmed on remand, 99 U.S.App.D.C. 369, 240 F.2d 55 (1956). See also National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943); Iacopi v. FCC, 451 F.2d 1142 (9th Cir. 1971); Mount Mansfield Television, Inc. v. FCC, 442 F.2d 470 (2d Cir. 1971).
Even when one considers intra-viewing market concentration, RKO would under established precedent be entitled to a substantial diversification demerit. RKO,. as stated in the text, owns an AM and an FM station in Los Angeles as well as certain cable franchises within Channel 9’s Grade B contour. See, e. g., Industrial Business Corp., 47 F.C.C.2d 891, 892, 897 (1974); Lorain Community Broadcasting Co., 13 F.C.C.2d 106, 114, recon. denied, 14 F.C.C.2d 604, rehearing denied, 15 F.C.C.2d 388 (1968), review denied, 18 F.C.C.2d 686 (1969), aff'd, Allied Broadcasting, Inc. v. FCC, 140 U.S.App.D.C. 264, 435 F.2d 68, 69 (1970). See also Scripps-Howard Radio, Inc. v. FCC, 89 U.S.App.D.C. 13, 189 F.2d 677, cert. denied, 342 U.S. 830, 72 S.Ct. 55, 96 L.Ed. 628 (1951).
. The court makes a rather extraordinary cite to McClatchy Broadcasting Co., 19 F.C.C. 343, 380-81 (1954), aff’d McClatchy Broadcasting Co. v. FCC, 99 U.S.App.D.C. 195, 239 F.2d 15 (1956), cert. denied, 353 U.S. 918, 77 S.Ct. 662, 1 L.Ed.2d 665 (1957) in which the Hearing Examiner relied on the so-called “autonomy” argument to reduce a diversification preference (although not to eliminate it). But the Commission refused to accept that reasoning, reversed the Hearing Examiner’s recommendation and awarded to the applicant with the diversification advantage. This court affirmed. Of course, the court is correct that the Commission “considered” whether the licensee had met the goals of diversification by autonomous operation, 169 U.S.App.D.C. page -, 515 F.2d page 701, but fails to inform the reader that the Commission rejected the *716argument. In the cases cited in notes 28, 35, 38-39 supra, there is no evidence of Commission consideration of autonomy in ruling on the weight of a diversification preference. The reasoning of those cases implicitly rejects such a contention. As the amicus Citizens Communications Center argues, the autonomy rationale would seemingly nullify the multiple or group ownership provisions, as well as the duopoly rules, since the licensee could argue that it has met the “goals” of the rules by “autonomous” operation. And, as may be evident, the Commission in its decision did not rely on “autonomous” operation so much as the fact that there was no evidence that the control of ownership was exercised to promote a uniform expression of views.
Turning to the Commission’s true rationale, it is clear that ad hoc inquiry into whether diversification demerits translate into a failure of diversity would require a prescience of what is “uniform” expression of views, a skill the Commission is not required to achieve and which has shown no success in achieving. Cf. Multiple Ownership of Standard, FM and Television Broadcast Stations, 50 F.C.C.2d 1046, 1119-21 (1975) (Robinson, Comm’r, concurring). The Commission has followed this approach to a very limited and unsuccessful extent in petitions to deny in cross-ownership situations. E. g. Columbus Broadcasting Coalition v. FCC, 164 U.S.App.D.C. 213, 217-218, 505 F.2d 320, 324-25 (1974); Stone v. FCC, 151 U.S.App.D.C. 145, 466 F.2d 316, 331 (1972); Hale v. FCC, 138 U.S.App.D.C. 125, 425 F.2d 556, 560 (1970). The Commission promoted this approach only as a temporary measure while it examined proposed rules and this court expressly affirmed it on that basis. The adoption of the rules on cross-ownership represent a rejection of the ad hoc approach and the expression of a general sentiment that the dangers to diversity because of the power gained through concentration is sufficient to prohibit the concentration. Multiple Ownership of Standard, FM and Television Broadcast Stations, 50 F.C.C.2d 1046, 1054 (1975). These rules represent the limit of cross or common ownership as a disqualification factor; they are to be extended in comparative hearings through the diversification guides. Id. at 1055, 1087-88 (since cross-ownership rules are prospective, in large part, major consideration of diversification in comparative hearings will occur in renewal proceedings).
. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 213-14, 221-22, 60 S.Ct. 811, 84 L.Ed. 1129 (1940), citing United States v. Trenton Potteries Co., 273 U.S. 392, 397—98, 47 S.Ct. 377, 71 L.Ed, 700 (1927). The policies stated in these two cases, that there is no feasible or efficient manner of administration of monopoly power to ensure against abuses, are applicable to the Commission’s logic.
. See sources cited note 22 supra.
. See RKO General, Inc., 44 F.C.C.2d 123, 226-27 (1969) (Hearing Exam.). See 169 U.S. App.D.C. pages ---, 515 F.2d pages 726-729, infra and sources cited.
. See SEC v. Chenery Corp., 318 U.S. 80, 92, 63 S.Ct. 454, 87 L.Ed. 626 (1943); cf. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962).
. See, e. g., Terre Haute Broadcasting Corp., 25 F.C.C.2d 348 (1970); The News-Sun Broadcasting Co., 24 F.C.C.2d 770, 777-78 (1970); WHDH, Inc., 16 F.C.C.2d 1, 13-14, on recon., 17 F.C.C.2d 856 (1969), aff'd, Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 862-63 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971); Ultravision Broadcasting Corp., 11 F.C.C.2d 394, 408-09 (1968), aff'd, WEBR, Inc. v. FCC, 136 U.S.App.D.C. 316, 420 F.2d 158 (1969); Flower City Television Corp., 9 F.C.C.2d 249, recon. denied, 10 F.C.C.2d 718 (1967), aff'd, Star Television, Inc. v. FCC, 135 U.S.App.D.C. 71, 416 F.2d 1086, cert. denied, 396 U.S. 888, 90 S.Ct. 171, 24 L.Ed.2d 163 (1969). The Commission’s argument nullifies the factor because, of course, there will always be integration of management employees into management; this is a truism. The factor seeks to integrate owners into management. Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 395-96 (1965).
. Brief for Fidelity Television, Inc., at 123.
. RKO General, Inc., 22 F.C.C.2d 737 (1970). See RKO General, Inc., 44 F.C.C.2d 123, 135 (1973).
. See Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 399 (1965).
Fidelity’s explanation of these events is recited in the Commission’s opinion denying the requested character issue, RKO General, Inc., 22 F.C.C.2d 737 (1970). It appears that one member of Fidelity’s board of directors did not authorize a signature on a stock subscription but did in fact believe himself committed to a $5,000 investment in the company. The individual did in fact function as a member of the board according to the Commission, although it never held a hearing on any of these issues. The other issues relating to changes in Fidelity’s corporate structure were reported late but well before the Commission’s decision. The facts as to the changes may be gleaned only from the pleadings of the parties, which differ substantially. The Commission never resolved the conflicts in the pleading or even commented on them until its apparent acceptance of RKO’s version in RKO General, Inc., 44 F.C.C.2d 123, 135 (1973). The additional reference in the Commission’s opinion to the late reporting of an alleged “newspaper” interest is completely inappropriate and was so recognized by the court. 169 U.S.App.D.C. page --, 515 F.2d page 701 n.42; note 33 supra.
. Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 396 & n.8 (1965), citing Sunbeam Television Corp. v. FCC, 100 U.S.App.D.C. 82, 243 F.2d 26, 29 & n.6 (1957).
. RKO General, Inc., 44 F.C.C.2d 149, 227 (1969) (Hearing Exam.).
. See sources cited note 44 supra.
. 15 U.S.C. §§ 1, 2, 45 (1970); see discussion in note 59 infra.
. RKO General, Inc., 44 F.C.C.2d 123, 130 (1973).
. Id. The Commission’s reference to RKO’s “unblemished” record is somewhat baffling since it had just finished concluding that RKO had engaged in illegal acts, had only an average past record (at best) and was the member of a sizeable communications conglomerate. What does the Commission think is a “blemished” record?
. 169 U.S.App.D.C. page -, 515 F.2d page 698.
. Id. 169 U.S.App.D.C. pages -, -, 515 F.2d pages 697, 698.
. Id. 169 U.S.App.D.C. pages -, -, 515 F.2d page 698.
. In particular, the record establishes that General Tire, RKO’s parent company, engaged in successful mutual patronage reciprocity with Pepsi-Cola, Olin Mathieson, Alcoa, American Airlines and Hertz that resulted in significant (respectively, $36,500, $12,350, $8,069, $9,650 to $14,500, $15,210 to $90,025) increases in KHJ advertising revenues. See RKO General, Inc., 44 F.C.C.2d 149, 202-04, 210-11, 212-15 (1969), summarized, 44 F.C.C.2d 123, 143 (1973) (Lee, Comm’r, dissenting). The Commission itself stated: “Thus, the question here is not whether reciprocal dealing was practiced with respect to KHJ-TV, but whether this conduct should reflect adversely upon the operation of the station.” Id. at 129.
. See FTC v. Consolidated Foods Corp., 380 U.S. 592, 594-95, 85 S.Ct. 1220, 14 L.Ed.2d 95 (1965); Allis-Chalmers Mfg. Co. v. White Consol. Industries, Inc., 414 F.2d 506, 518-19 (3d Cir. 1969); California Packing Corp., 25 F.T.C. 379 (1937). In Consolidated Foods, the Supreme Court found a merger violated Section 7 of the Clayton Act because of the possibility of reciprocal dealing. If the possibility of recip*720rocal dealing is sufficient to set aside a merger, it must certainly follow that actual engagement in reciprocal dealing would violate some provisions of the anti-trust laws. Lower courts since Consolidated Foods have concluded that Sections 1 and 2 of the Sherman Act are offended by reciprocal dealing. See W. L. Gore & Assoc. v. Carlisle Corp., 381 F.Supp. 680, 703 (D.Del.1974); United States v. General Dynamics Corp., 258 F.Supp. 36, 57-59 (S.D.N.Y.1966). This seems a fairly uncontroversial extension of the cases outlawing tying arrangements (reciprocity being simply a form of tying). See Fortner v. United States Steel Corp., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2.d 495 (1969); Northern Pacific R.R. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958); International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947). Indeed, the Supreme Court in Consolidated Foods, in declaring reciprocity an unlawful consequence of a merger, specifically relied on the reasoning of the tie-in cases. 380 U.S. at 594, 85 S.Ct. 1220. And even if it does not violate the Sherman Act, reciprocity clearly violates Section 5 of the Federal Trade Commission Act. Since mistake of law is not a defense to civil or criminal charges, see United States v. Barker, 168 U.S.App.D.C. -, 514 F.2d 208 (1975) (Bazelon, C. J., concurring), in most circumstances, it requires some fairly extraordinary leaps of faith to excuse RKO’s clear violations of the antitrust laws. And it must be remembered that we are discussing not disqualification, where “knowing” misconduct is particularly relevant (although mistakes of law are not generally part of the “knowing” requirement), but only comparative evaluation.
The Commission’s off-the-cuff assertion in RKO General, Inc., 44 F.C.C.2d 123, 130 n.21 (1973) that an insufficient amount of commerce was affected to bring to bear the sanction of the anti-trust laws is clearly erroneous for two reasons. First, the commerce requirement is a jurisdictional requirement for federal courts tied to policies of federalism and says nothing about the validity of the trade practices involved. Thus, since the FCC has established jurisdiction over individual licensees, the jurisdictional requirement is not relevant and hence the Commission must look only to the substantive validity of the trade practices involved. Second, the FCC gives no reasoned basis for its conclusion, cites no evidence and in no way correlates the evidence with established guidelines in the area. See Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 850-52 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971).
The one ambiguity in this record relating to RKO’s violation of the anti-trust laws concerns the degree of market power necessary to make reciprocity illegal. There is some confusion in the cases, particularly when one refers to the tie-in cases, on whether some kind of market leverage must be shown to make reciprocity illegal. Cf. Turner, Conglomerate Mergers and § 7 of the Clayton Act, 78 Harv.L.Rev. 1313, 1386-93 (1965). This issue, while serious from my examination of the facts in this case, was not considered by the Commission. Since the case should be remanded under my view I think the Commission should explore the matter further with the aid of the Justice Department.
. See National Broadcasting Co. v. United States, 319 U.S. 190, 222-24, 63 S.Ct. 997, 87 L.Ed. 1344 (1943); Philco Corp. v. FCC, 110 U.S.App.D.C. 387, 293 F.2d 864 (1961); Allentown Broadcasting Corp. v. FCC, 94 U.S.App.D.C. 353, 222 F.2d 781, 787, rev’d on other grounds, 349 U.S. 358, 75 S.Ct. 855, 99 L.Ed. 1147 (1955); Mansfield Journal Co. v. FCC, 86 U.S.App.D.C. 102, 180 F.2d 28 (1950).
. See RKO General, Inc., 44 F.C.C.2d 123, 143-44 (1973) (Lee, Comm’r, dissenting), citing FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656 (1940).
. See RKO General, Inc., 44 F.C.C.2d 149, 172-73, 220 (1969) (Hearing Exam.). These statements of fact are not varied by the Commission’s decision which only notes that RKO did not violate the NAB Code on advertising time. RKO General, Inc., 44 F.C.C.2d 123, 133 (1973). This statement is not supported by any reasons or evidence, both of which are necessary in light of the fact that RKO does not subscribe to the NAB Code and Fidelity’s Exhibits 50-51, summarized in its brief at 88-89, purport to offer proof that RKO consistently violated the NAB Code provisions. RKO and the Commission respond in their briefs by essentially arguing that there are no standards by which to judge whether a licensee has engaged in overcommercialization. They are correct that the Commission has relied on a case-by-case inquiry, Commercial Practices of Broadcast Licensees, 36 F.C.C. 45 (1964), but this does not mean there are no standards at all. RKO seems to challenge the accuracy of Fidelity’s information on commercialization in excess of the NAB Code (although the relevance of the Code is not explained); the Com*721mission should forthrightly reconcile the disputes in the evidence and not rely on a mere conclusory statement, particularly in light of the fact that RKO does seem to admit to some commercialization in excess of the Code. See Brief for Intervenor RKO General, Inc. at 45.
. Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 397-98 (1965).
. Id. See Moline Television Corp., 31 F.C.C.2d 263, 272-73 (1971).
. See Citizens Comm. to Save WEFM v. FCC, 165 U.S.App.D.C. 191, 219, 506 F.2d 252, 280 & n.63 (1974) (Bazelon, C. J., concurring in the result) and authorities cited; authorities cited note 72 infra.
. See 506 F.2d at 258-62, 265-66 & n.31 and authorities cited. See also Local 880, Retail Store Employees v. FCC, 141 U.S.App.D.C. 94, 436 F.2d 248 (1970).
. See RKO General, Inc., 5 F.C.C.2d 517, 519-20 (1966), special relief denied, 8 F.C.C.2d 880, clarif. denied, 10 F.C.C.2d 115 (1967).
. Petition to Enlarge Issues of Fidelity Television, Inc. at 11, Joint App. at 205, citing Petersburg Television Corp., 19 F.C.C. 451 (1954), aff’d Southside Virginia Telecasting Corp. v. FCC, 97 U.S.App.D.C. 130, 228 F.2d 644, cert. denied, 350 U.S. 1001, 76 S.Ct. 546, 100 L.Ed. 865 (1956).
. This was mentioned by the Hearing Examiner. See RKO General, Inc., 44 F.C.C.2d 149, 194, 224 (1969) (Hearing Exam.). See also id. at 195-199 (testimony supporting the specialized programming issue summarized). This fact is particularly crucial since Fidelity’s petition was drawn with explicit reference to the Petersburg decision and sought to avoid the conclusion that it, Fidelity, like the unsuccessful applicant in Petersburg, meant to ignore part of the service area. See note 68 supra.
The court mistakenly informs us, 169 U.S.App.D.C. at page - n.14, 515 F.2d at page 695 n.14, that the Hearing Examiner would have found against Fidelity on the service philosophy issue. This statement is remarkable for several reasons, the first of which being that the Hearing Examiner could not find against Fidelity on an issue which had never been heard and upon which no record had been developed. A second problem with the court’s assertion is that it misstates the Hearing Examiner’s remark, which was that Fidelity’s proposal might result in a further contribution to Los Angeles proper becoming “the hole in the doughnut of the surrounding communities.” RKO General, Inc., 44 F.C.C.2d 149, 226 (1969) (Hearing Exam.). This remark is not a holding against Fidelity (and if it were, it might well be subject to challenge since no evidence is adduced in support of it and, of course, no hearing was held on the issue), but rather is one argument that counts against the specialized programming issue if in fact the specialized issue were to be used in the comparative hearing. It is noteworthy that this argument of the Hearing Examiner is directly inconsistent with the argument by the Commission that there is no evidence of any special local needs of the Southland to justify even hearing a specialized programming issue. RKO General, Inc., 5 F.C.C.2d 517, 519-20 (1966).
. In fact, the Commission later assigned a UHF channel to Anaheim expressly to meet the local needs of the Southland. Table of Assignments, 8 F.C.C.2d 736 (1967). The Brief for the Federal Communications Comm’n at 19 & n.8 states that Fidelity should not-be permitted to have a service philosophy issue until it had petitioned for rulemaking to modify the table of assignments. But any failure in that regard was surely cured by the Commission’s own actions in granting an assignment to Anaheim. Moreover, the Commission in ruling on Fidelity’s petition did not state that Fidelity had chosen the wrong procedure to obtain a service philosophy issue and that it should have sought rulemaking. Rather, the petition was dismissed because Fidelity had not alleged sufficient facts that there was separate local needs of the Southland distinct from the remainder of the Los Angeles service area. RKO General, Inc., 5 F.C.C.2d 517, 519-20 (1966).
. See the evidence adduced and apparently accepted by the Hearing Examiner, summarized RKO General, Inc., 44 F.C.C.2d 149, 194-99 (1969).
. Compare the analysis of Jimmie H. Howell, 46 F.C.C.2d 1150, 1153-54 (1973); Jay Sadow, 26 F.C.C.2d 940, 957-61 (1970); Harvit Broadcasting Corp., 18 F.C.C.2d 508 (1969); Jaco, Inc., 18 F.C.C.2d 219 (1969); Christian Broadcasting Ass’n, 16 F.C.C.2d 594 (1969); Salter Broadcasting Co., 8 F.C.C.2d 1036 (1967); Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 397 n.9 (1965); cf. La Fiesta Broadcasting Co., 6 F.C.C.2d 65, 67-74 (1966) with the following general service cases, Community Broadcasters, Inc., 33 F.C.C.2d 714, 719, 720 (1972); WSOQ, Inc., 20 F.C.C.2d 874, 875-76 (1969); City of Camden, 18 F.C.C.2d 412 (1969); Regal Broadcasting Corp., 14 F.C.C.2d 845, 847 (1968). See also Citizens Comm. to Save WEFM v. FCC, 165 U.S.App.D.C. 191, 219, 506 F.2d 252, 280 & n.63 (1974) (Bazelon, C. J., concurring in the result) and authorities cited.
. 169 U.S.App.D.C. at page - n.16, 515 F.2d at page 696 n.16. The court may at this point be only referring to the general programming issue proposed by Fidelity.
. RKO General, Inc., 8 F.C.C.2d 880 (1967), clarif. denied, 10 F.C.C.2d 115, 117 (1967). It was in this last decision by the Review Board denying clarification of the Commission’s action that the inadequacy of Fidelity’s ascertainment issue was first raised. In mentioning this alleged inadequacy (after all the ascertainment survey was never in the record), the Review Board refers to previous “findings” of inadequacy. The Review Board provides no citation to such previous “findings” and there are none in its previous decision on the specialized programming issue. See RKO General, Inc., 5 F.C.C.2d 517, 519-20 (1966).
. See Citizens Comm. to Save WEFM v. FCC, 165 U.S.App.D.C. 191, 207, 506 F.2d 252, 268 (1974) (Bazelon, C. J., concurring in the result).
. Id. at 281-83. See generally Bazelon, supra note 31.
. See RKO General, Inc., 44 F.C.C.2d 149, 161-88 (1969) (Hearing Exam.) which collects most of the evidence Fidelity thinks is relevant to a determination on RKO’s past performance. On the commercialization issue, see note 62 supra.
. See Citizens Comm. to Save WEFM v. FCC, 165 U.S.App.D.C. 191, 216, 506 F.2d 252, 277 & n.40 (1974) (Bazelon, C. J., concurring in the result); Bazelon, supra note 31, at 229-34. It is not clear what the Commission found on commercialization but it does appear that the Commission did not award a comparative demerit or in any manner weigh overcommer-cialization against RKO.
. See Public Communications, Inc., 32 P & F Radio Reg.2d 319 (1974); Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249-51 (1949). Cf. Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 860 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971) (on the “editorializing” part of the journalistic function).
Of course, in enforcing such a standard of significant amounts of journalism the Commission should require strict requirements of pleading to ensure that percentage differences in programming among applicants truly relate to community needs. These pleading requirements will protect applicants from the chilling effect of amorphous and unsubstantiated challenges and the costs incident to defense thereof. See National Broadcasting Co. v. FCC, 170 U.S.App.D.C. -, at -, 516 F.2d 1101 at 1156 (1975) (Bazelon, C. J., dissenting from the order *726vacating the previous order granting rehearing en banc). The Commission at present recognizes such pleading requirements. See Chapman Radio & Television Co., 7 F.C.C.2d 213 (1967); 169 U.S.App.D.C. - & n.64, 515 F.2d 721 & n.64 supra.
. See Citizens Comm. to Keep Progressive Rock v. FCC, 156 U.S.App.D.C. 16, 478 F.2d 926, 929 (1973); Network Programming Inquiry, 20 P & F Radio Reg. 1901, 1907 (1960). The Hearing Examiner clearly weighed the alleged lack of “quality” in RKO’s programming, RKO General, Inc., 44 F.C.C.2d 149, 162-69, 177-88 (1969), but the Commission stated that it would not consider “quality” even though it also concluded that RKO’s past performance was merely “average” (a conclusion which seems to indicate some quality judgment), 44 F.C.C.2d at 132-33.
. Formulation of Policies Relating to the Broadcast Renewal Applicant, 27 F.C.C.2d 580 (1971), amended, 31 F.C.C.2d 443 (1971), mandamus denied, Citizens Communication Center v. FCC, 149 U.S.App.D.C. 419, 463 F.2d 822 (1972).
. RKO General, Inc., 44 F.C.C.2d 123, 140 (1973) (Johnson, Comm’r, dissenting).
. Id. at 138. But the Commission even vacillated on this issue, later arguing that its decision was not a final order. Fidelity Television, Inc. v. FCC, 163 U.S.App.D.C. 441, 502 F.2d 443 (1974).
. See Geller, A Modest Proposal for Modest Reform of the Federal Communications Commission, 63 Geo.L.J. 705, 715-18 (1975) and leading authorities cited which include Professor Jaffe, Judge Friendly, Professor Jones and a member of the panel that decided this case.
. Sunbeam Television Corp. v. FCC, 100 U.S.App.D.C. 82, 243 F.2d 26, 29 n.6 (1957).
. Compare Garrett v. FCC, 168 U.S.App.D.C. 266, 513 F.2d 1056 (1975); TV 9, Inc. v. FCC, 161 U.S.App.D.C. 349, 495 F.2d 929 (1973), cert. denied, 419 U.S. 986, 95 S.Ct. 245, 42 L.Ed.2d 194 (1974).
. Tennessee Television, Inc. v. FCC, 104 U.S.App.D.C. 316, 262 F.2d 28, 32-33 (1958) (Bazelon, J. dissenting). See also Pinellas Broadcasting Co. v. FCC, 97 U.S.App.D.C. 236, 230 F.2d 204, cert. denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956). The arguments in my dissents in these two cases were seemingly adopted .by the Commission in its Policy Statement on Comparative Broadcast Hearings, 5 F.C.C.2d 393, 394-95 (1965); see Terre Haute Broadcasting Corp., 25 F.C.C.2d 348, 353-55 (1970); sources cited notes 35, 38 supra.
. Pinellas Broadcasting Co. v. FCC, 97 U.S.App.D.C. 236, 230 F.2d 204, 206, cert. denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956) (Prettyman, J.):
The decisive factors in comparable [sic] selections may well vary . . . And it is also true that the Commission’s view of what is best in the public interest may change from time to time. Commissions themselves change, underlying philosophies differ, and experience often dictates changes. . '. . All such matters are for the Congress and the executive and their agencies. They are political, in the high sense of that abused term. They are not for the judiciary.
. Compare Carroll Broadcasting Co. v. FCC, 103 U.S.App.D.C. 346, 258 F.2d 440 (1958) with 169 U.S.App.D.C. pages ---, 515 F.2d pages 711-717, supra.