Opinion for the Court filed by Circuit Judge WILKEY.
WILKEY, Circuit Judge:
This case involves a license renewal proceeding for a television station. The appeal
The factual background and legal issues involved in this case were discussed at length in our earlier opinion and can be summarized briefly here. Central Florida Enterprises has challenged the FCC's decision to renew Cowles Broadcasting's license to operate on Channel 2 in Daytona Beach, Florida. In reaching a renewal/nonrenewal decision, the FCC must engage in a comparative weighing of pro-renewal considerations against anti-renewal considerations. In the case here, there were four considerations potentially cutting against Cowles: its illegal move of its main studio, the involvement of several related companies in mail fraud, its ownership of other communications media, and its relative (to Central Florida) lack of management-ownership integration. On the other hand, Cowles' past performance record was "superior," i.e., "sound, favorable and substantially above a level of mediocre service which might just minimally warrant renewal."
In its decision appealed in Central Florida I the FCC concluded that the reasons undercutting Cowles' bid for renewal did "not outweigh the substantial service Cowles rendered to the public during the last license period."
On remand the Commission has followed our directives and corrected, point by point, the inadequate investigation and analysis of the four factors cutting against Cowles' requested renewal. The Commission concluded that, indeed, three of the four merited an advantage for Central Florida, and on only one (the mail fraud issue) did it conclude that nothing needed to be added on
We are left, then, with evaluating the way in which the FCC weighed Cowles' main studio move violation and Central's superior diversification and integration, on the one hand, against Cowles' substantial record of performance on the other. This is the most difficult and important issue in this case, for the new weighing process which the FCC has adopted will presumably be employed in its renewal proceedings elsewhere. We therefore feel that it is necessary to scrutinize carefully the FCC's new approach, and discuss what we understand and expect it to entail.
For some time now the FCC has had to wrestle with the problem of how it can factor in some degree of "renewal expectancy" for a broadcaster's meritorious past record, while at the same time undertaking the required
We believe that the formulation by the FCC in its latest decision, however, is a permissible way to incorporate some renewal expectancy while still undertaking the required comparative hearing. The new policy, as we understand it, is simply this: renewal expectancy is to be a factor weighed with all the other factors, and the better the past record, the greater the renewal expectancy "weight."
If a stricter standard is desired by Congress, it must enact it. We cannot: the new standard is within the statute.
The reasons given by the Commission for factoring in some degree of renewal expectancy are rooted in a concern that failure to do so would hurt broadcast consumers.
We are relying, then, on the FCC's commitment that renewal expectancy will be factored in for the benefit of the public, not for incumbent broadcasters.
There is a danger, of course, that the FCC's new approach could still degenerate into precisely the sort of irrebuttable presumption in favor of renewal that we have warned against. But this did not happen in the case before us today, and our reading of the Commission's decision gives us hope that if the FCC applies the standard in the same way in future cases, it will not happen in them either. The standard is new, however, and much will depend on how the Commission applies it and fleshes it out. Of particular importance will be the definition and level of service it assigns to "substantial" — and whether that definition is ever found to be "opaque to judicial review,"
In this case, however, the Commission was painstaking and explicit in its balancing. The Commission discussed in quite specific terms, for instance, the items it found impressive in Cowles' past record. It stressed and listed numerous programs demonstrating Cowles' "local community orientation" and "responsive[ness] to community needs," discussed the percentage of Cowles' programming devoted to news, public affairs, and local topics, and said it was "impressed by [Cowles'] reputation in the community. Seven community leaders and three public officials testified that [Cowles] had made outstanding contributions to the local community. Moreover, the record shows no complaints ...." The Commission concluded that "Cowles' record [was] more than minimal," was in fact "`substantial,' i.e., `sound, favorable and substantially above a level of mediocre service which might just minimally warrant renewal.'"
The Commission's inquiry in this case did not end with Cowles' record, but continued with a particularized analysis of what factors weighed against Cowles' record, and how much. The FCC investigated fully the mail fraud issue.
The FCC concluded that "the risk to the public interest posed by the violation seems small when compared to the actuality of depriving Daytona Beach of Cowles' tested and acceptable performance."
Having listed the relevant factors and assigned them weights, the Commission concluded that Cowles' license should be renewed. We note, however, that despite the finding that Cowles' performance was "`substantial,' i.e., `sound, favorable and substantially above a level of mediocre service,'"
We have, however, an important caveat. In the Commission's weighing of factors the scale mid-mark must be neither the factors themselves, nor the interests of the broadcasting industry, nor some other secondary and artificial construct, but rather the intent of Congress, which is to say the interests of the listening public. All other doctrine is merely a means to this end, and it should not become more. If in a given case, for instance, the factual situation is such that the denial of a license renewal would not undermine renewal expectancy in a way harmful to the public interest, then renewal expectancy should not be invoked.
Finally, we must note that we are still troubled by the fact that the record remains that an incumbent television licensee has never been denied renewal in a comparative challenge.
We hope that the standard now embraced by the FCC will result in the protection of the public, not just incumbent licensees. And in today's case we believe the FCC's application of the new standard was not inconsistent with the Commission's mandate. Accordingly the Commission's decision is
We note that there is some confusion between the Commission's pleadings and the Commission's decision as to whether the main studio move violation was weighed against the renewal expectancy, or diminished the renewal expectancy to begin with. Compare, e.g., Brief for the FCC at 8, 14-15, 27 with 86 F.C.C.2d at 1012-13, 1015-18. An analysis of this hypertechnical issue would be relevant only were we to concede that it matters when the various factors are weighed, but this sort of timing should not, must not, be critical. See also note 31 infra. The merit or lack of merit in the incumbent's record — and the degree of renewal expectancy to which he is thereby entitled — and all the other factors are all to be weighed, all at once, all with an eye toward the public interest. Nothing is removed from the scales until the balance is struck. Again, we are convinced the Commission acted properly in this case. See, e.g., 86 F.C.C.2d at 1015-18.
86 F.C.C.2d at 1002 (emphasis added). The Commission also found that there was no basis to conclude that the principal common officers of Cowles and the implicated subsidiaries participated in or encouraged any misconduct, and that the mail fraud inquiry had not been curtailed in any significant way, id. at 998-1004 — two other reservations we had in Central Florida I, 598 F.2d at 52. We think the Commission's findings here are adequately supported.
The FCC argues that diversification and integration should not be given "heavy weight in the comparative renewal context" since "[c]hallengers could easily structure their proposals to be superior to the incumbent's," resulting in possible "substantial restructuring of the industry with possible disruptions of service" and a loss of "incentive to provide quality programming." 86 F.C.C.2d at 1016.
Here we have a caveat. We do not read the Commission's new policy as ignoring integration and diversification considerations in comparative renewal hearings. In its brief at page 6 the Commission states that "an incumbent's meritorious record should outweigh in the comparative renewal context a challenging applicant's advantages under the structural factors of integration and diversification." Ceteris paribus, this may be so — depending in part, of course, on how "meritorious" is defined. But where there are weights on the scales other than a meritorious record on the one hand, and integration and diversification on the other, the Commission must afford the latter two some weight, since while they alone may not outweigh a meritorious record they may tip the balance if weighed with something else. See Citizens, 447 F.2d at 1208-09 n.23.
That, of course, is precisely the situation here, since the main studio move violation must also be balanced against the meritorious record. The Commission may not weigh the antirenewal factors separately against the incumbent's record, eliminating them as it goes along. It must weigh them all simultaneously. See note 16 supra. We are convinced, however, despite some ambiguous passages like the one just quoted in the preceding paragraph, that the Commission has followed the correct procedure here. See, e.g., 86 F.C.C.2d at 1018. Thus the Commission's conclusion that diversification and integration are to be given "lesser weight" than renewal expectancy does not mean that they were or will be given no weight. The relative weight to be given these factors will vary, depending on how much or how little diversification or integration is at stake. Here, as stated in the text, the Commission did consider the degree of Central's integration advantage ("slight") and diversification advantage ("clear"). 86 F.C.C.2d at 1009-10.