(dissenting).
I respectfully dissent, although I agree with the general principles enunciated in the main opinion. It is the application of some of them here, to the exclusion of the others, to which I take exception.
It seems to me that the main opinion lifts out of context small parts of the record in a sort of ad hoc justification for ignoring the overall tenor of the Commission’s conclusion, arrived at unanimously and after a lengthy four-day hearing. For example, it points to two or three findings of the Commission that recognize that there may be a temporary overcrowding of channels leading to transmission congestion, which necessarily does not point up immediacy of additional competitive facili*15ties. Other parts of the Commission’s conclusions appear to me to say that, conceding present congestion because of not insurmountable difficulties, that aren’t too onerous, the evidence indicates that in this comparatively new service to the public, existing franchised operators have indicated.that they can and will rectify such deficiencies and hence should be given a _ reasonable opportunity to do so and thus p'fo-1 tect their risk capital and future business, n • — or else. In other words, I consider that the Commission has visualized the overall-situation, is tossing out a warning signal to any existing utility to protect its franchise or lose its brass ring at the next go around on the ever revolving public utilities carousel.
This is simply the exercise of good judgment in my opinion, to perpetuate the heart beat and guts of the public utility concept of protecting risk capital expenditure until the privilege of noncompetitive operation clearly is shown to have been abused.
I think this philosophy is echoed in the finding of the Commission, based on what I think was believable evidence calling for affirmance under existing rules, when the Commission stated that “The protestant . has constantly, earnestly and energetically sought to and has substantially 1 upgraded and expanded its service to the public since its certification . . .,” and that when congestion was urged it applied to FCC for more channels, the granting of which would “greatly relieve the present congestion and broaden the service,” and therefore “That to grant the application herein would be clearly against the public interest.”
I consider the quotation from Commissioner Hacking’s obvious ipse dixit dictum about the chicken or the egg routine hardly to be dispositive here, even if someone had put it in the Congressional Record. It was no part of the findings and no part of the order.
The record here is full of testimony adduced even by the petitioner itself, indicating little more than grumbling about congestion, with overtones of general satisfaction with existing services.
I think the suggestion in the main opinion that the petitioner is between a rock and a hard spot is not quite realistic, because the existing operator has made application for permission to expand its services, which, if granted, would extricate petitioner from the vise that is not really painful but simply a barrier to its own exploitation of the profit motive.
I would affirm the Commission’s order under the statute and the evidence, — some of which is the subject of controversion, — ■ and under the previous decisions of this *16court, and in the light of rules for review confirming the Commission if its order is supported by competent evidence which cannot be said to reflect caprice or wholly unsupportive of the Commission’s order.
. Meaning, I take it “You’d better do more.”