United States Court of Appeals District of Columbia Circuit.
OFFICE OF COMMUNICATION OF the UNITED CHURCH OF CHRIST, Aaron Henry, Robert L.
         T. Smith and United Church of Christ at Tougaloo, Appellants,
                                      v.
 FEDERAL COMMUNICATIONS COMMISSION, Appellee, Lamar Life Broadcasting Company,
                                  Intervenor.
                                  No. 19409.
 
                             Argued Dec. 3, 1965.
                            Decided March 25, 1966.

 An application was made for renewal of broadcast license. Protestors
petitioned to intervene to present evidence and arguments in opposition. The
Federal Communications Commission dismissed the petition and, without a
hearing, granted a conditional renewal of license for one-year period.  The
protestors appealed.  The Court of Appeals, Burger, Circuit Judge, held that
responsible representatives of listening public have standing as parties in
interest to contest renewal of broadcast license.  The Court further held that
the Commission must hold an evidentiary hearing to resolve public interest
issue raised by claims of broadcaster's racial discrimination, religious
discrimination, oppressive overcommercialization by advertising announcements,
and violation of fairness doctrine.

 Reversed and remanded to Commission for further proceedings.

*997 **331 Mr. Orrin G. Judd, New York City, of the bar of the Court of
Appeals of New York, pro hac vice, by special leave of court, with whom
Messrs. Earle K. Moore, New York City, of the bar of the Court of Appeals of
New York, pro hac vice, by special leave of court, and Henry F. Lerch,
Washington, D.C., and Mrs. Ann Aldrich were on the brief, for appellants.

 Mr. John H. Conlin, Associate Gen. Counsel, F.C.C., with whom Messrs. Henry
Geller, Gen. Counsel, and Howard Jay Braun, Counsel, F.C.C., were on the
brief, for appellee.

 Mr. Paul A. Porter, Washington, D.C., with whom Messrs. Reed Miller and Jamie
Hunter, Washington, D.C., were on the brief, for intervenor.

 Mr. Lawrence Speiser, Washington, D.C., filed a brief on behalf of American
Civil Liberties Union, as amicus curiae, urging reversal.

 Before BURGER, MCGOWAN and TAMM, Circuit Judges.

 BURGER, Circuit Judge:

 This is an appeal from a decision of the Federal Communications Commission
granting to the Intervenor a one-year renewal of its license to operate
television station WLBT in Jackson, Mississippi.  Appellants filed with the
Commission a timely petition to intervene to present evidence and arguments
opposing the renewal application.  The Commission dismissed Appellants'
petition and, without a hearing, took the unusual step of granting a
restricted and conditional renewal of the license.  Instead of granting the
usual three-year renewal, it limited the license to one year from June 1,
1965, and imposed what it characterizes here as 'strict conditions' on WLBT's
operations in that one-year probationary period.

 The questions presented are (a) whether Appellants, or any of them, have
standing before the Federal Communications Commission as parties in interest
under Section 309(d) of the Federal Communications Act [FN1] to contest the
renewal of a broadcast license; and (b) whether the Commission was required by
Section 309(e) [FN2] to conduct an evidentiary hearing on the claims of the
Appellants prior to acting on renewal of the license.
 
      FN1. 74 Stat. 890 (1960), 47 U.S.C. <section> 309(d) (1964).
 
      FN2. 78 Stat. 193 (1964), 47 U.S.C. <section> 309(e) (1964).

 Because the question whether representatives of the listening public have
standing to intervene in a license renewal proceeding is one of first
impression, we have given particularly close attention to the background of
these issues and to the Commission's reasons for denying standing to
Appellants.

 Background

 The complaints against Intervenor embrace charges of discrimination on racial
*998 **332 and religious grounds and of excessive commercials.  As the
Commission's order indicates, the first complaints go back to 1955 when it was
claimed that WLBT had deliberately cut off a network program about race
relations problems on which the General Counsel of the NAACP was appearing and
had flashed on the viewers' screens a 'Sorry, Cable Trouble' sign.  In 1957
another complaint was made to the Commission that WLBT had presented a program
urging the maintenance of racial segregation and had refused requests for time
to present the opposing viewpoint.  Since then numerous other complaints have
been made.

 When WLBT sought a renewal of its license in 1958, the Commission at first
deferred action because of complaints of this character but eventually granted
the usual three-year renewal because it found that, while there had been
failures to comply with the Fairness Doctrine, the failures were isolated
instances of improper behavior and did not warrant denial of WLBT's renewal
application.

 Shortly after the outbreak of prolonged civil disturbances centering in large
part around the University of Mississippi in September 1962, the Commission
again received complaints that various Mississippi radio and television
stations, including WLBT, had presented programs concerning racial integration
in which only one viewpoint was aired.  In 1963 the Commission investigated
and requested the stations to submit detailed factual reports on their
programs dealing with racial issues.  On March 3, 1964, while the Commission
was considering WLBT's responses, WLBT filed the license renewal application
presently under review.

 To block license renewal, Appellants filed a petition in the Commission
urging denial of WLBT's application and asking to intervene in their own
behalf and as representatives of 'all other television viewers in the State of
Mississippi.' The petition [FN3] stated that the Office of Communication of
the United Church of Christ is an instrumentality of the United Church of
Christ, a national denomination with substantial membership within WLBT's
prime service area.  It listed Appellants Henry and Smith as individual
residents of Mississippi, and asserted that both owned television sets and
that one lived within the prime service area of WLBT; both are described as
leaders in Mississippi civic and civil rights groups.  Dr. Henry is president
of the Mississippi NAACP; both have been politically active.  Each has had a
number of controversies with WLBT over allotment of time to present views in
opposition to those expressed by WLBT editorials and programs.  Appellant
United Church of Christ at Tougaloo is a congregation of the United Church of
Christ within WLBT's area.
 
      FN3. By 'petition,' we refer to both the original petition and the reply
      to WLBT's opposition to the initial petition.

 The petition claimed that WLBT failed to serve the general public because it
provided a disproportionate amount of commercials and entertainment and did
not give a fair and balanced presentation of controversial issues, especially
those concerning Negroes, who comprise almost forty-five per cent of the total
population within its prime service area; [FN4] it also claimed discrimination
against local activities of the Catholic Church.
 
      FN4. The specific complaints of discrimination were that Negro
      individuals and institutions are given very much less television
      exposure than others are given and that programs are generally
      disrespectful toward Negroes.  The allegations were particularized and
      accompanied by a detailed presentation of the results of Appellants'
      monitoring of a typical week's programming.

 Appellants claim standing before the Commission on the grounds that:

 (1) They are individuals and organizations who were denied a reasonable
opportunity to answer their critics, a violation of the Fairness Doctrine.

 (2) These individuals and organizations represent the nearly one half of
WLBT's potential listening audience who were denied an opportunity to have
their *999 **333 side of controversial issues presented, equally a violation
of the Fairness Doctrine, and who were more generally ignored and
discriminated against in WLBT's programs.

 (3)  These individuals and organizations represent the total audience, no  t
merely one part of it, and they assert the right of all listeners, regardless
of race or religion, to hear and see balanced programming on significant
public questions as required by the Fairness Doctrine [FN5] and also their
broad interest that the station be operated in the public interest in all
respects.
 
      FN5. In promulgating the Fairness Doctrine in 1949 the Commission
      emphasized the 'right of the public to be informed, rather than any
      right on the part of the Government, any broadcast licensee or any
      individual member of the public to broadcast his own particular views on
      any matter * * *.'  The Commission characterized this as 'the foundation
      stone of the American system of broadcasting.'  Editorializing by
      Broadcast Licensees, 13 F.C.C. 1246, 1249 (1949).  This policy received
      Congressional approval in the 1959 amendment of Section 315 which speaks
      in terms of 'the obligation imposed upon (licensees) under this Act to
      operate in the public interest and to afford reasonable opportunity for
      the discussion of conflicting views on issues of public importance.'  73
      Stat. 557 (1959), 47 U.S.C. 315(a) (1964).

 The Commission denied the petition to intervene on the ground that standing
is predicated upon the invasion of a legally protected interest or an injury
which is direct and substantial and that 'petitioners * * * can assert no
greater interest or claim of injury than members of the general public.'  The
Commission stated in its denial, however, that as a general practice it 'does
consider the contentions advanced in circumstances such as these, irrespective
of any questions of standing or related matters,' and argues that it did so in
this proceeding.

 Upon considering Petitioners' claims and WLBT's answers to them on this
basis, the Commission concluded that

 serious issues are presented whether the licensee's operations have fully met
the public interest standard.  Indeed, it is a close question whether to
designate for hearing these applications for renewal of license.

 Nevertheless, the Commission conducted no hearing but granted a license
renewal, asserting a belief that renewal would be in the public interest since
broadcast stations were in a position to make worthwhile contributions to the
resolution of pressing racial problems, this contribution was 'needed
immediately' in the Jackson area, and WLBT' if operated properly, [FN6] could
make such a contribution.  Indeed the renewal period was explicitly made a
test of WLBT's qualifications in this respect.
 
      FN6. '* * * we cannot stress too strongly that the licensee must operate
      in complete conformity with its representations and the conditions laid
      down.'

 We are granting a renewal of license, so that the licensee can demonstrate
and carry out its stated willingness to serve fully and fairly the needs and
interests of its entire area-- so that it can, in short, meet and resolve the
questions raised.

 The one-year renewal was on conditions which plainly put WLBT on notice that
the renewal was in the nature of a probationary grant; the conditions were
stated as follows:

 (a) 'That the licensee comply strictly with the established requirements of
the fairness doctrine.'

 (b) '* * * That the licensee observe strictly its representations to the
Commission in this (fairness) area * * *.'

 (c) 'That, in the light of the substantial questions raised by the United
Church petition, the licensee immediately have discussions with community
leaders, including those active in the civil rights movement (such as
petitioners), as to whether its programming is fully meeting the needs and
interests of its area.'

 (d) 'That the licensee immediately cease discriminatory programming
patterns.'

 (e) That 'the licensee will be required *1000 **334 to make a detailed report
as to its efforts in the above four respects * * *.'

 Appellants contend that, against the background of complaints since 1955 and
the Commission's conclusion that WLBT was in fact guilty of 'discriminatory
programming,' the Commission could not properly renew the license even for one
year without a hearing to resolve factual issues raised by their petition and
vitally important to the public.  The Commission argues, however, that it is
effect accepted Petitioners' view of the facts, took all necessary steps to
insure that the practices complained of would cease, and for this reason
granted a short-term renewal as an exercise by the Commission of what it
describes as a "political' decision, 'in the higher sense of that abused
term,' which is peculiarly entrusted to the agency.' [FN7]  The Commission
seems to have based its 'political decision' on a blend of what the Appellants
alleged, what its own investigation revealed, its hope that WLBT would
improve, and its view that the station was needed.
 
      FN7. Intervenor and the Commission depart from the record to argue that
      WLBT has fully complied with the conditions and that the Commission's
      hope that WLBT would make a valuable contribution to the problems of
      race relations is being fulfilled.  Appellants respond that WLBT has not
      adequately corrected unbalanced programming.  We do not consider these
      claims as to the alleged success of the Commission's effort to permit
      WLBT to purge itself or misconduct relevant either to the question of
      standing or to the correctness of the grant of a renewal without a
      hearing.  We confine ourselves to the record as made before the
      Commission.

 Standing of Appellants [FN8]
 
      FN8. All parties seem to consider that the same standards are applicable
      to determining standing before the Commission and standing to appeal a
      Commission order to this court.  See Philco Corp. v. FCC, 103
      U.S.App.D.C. 278, 257 F.2d 656 (1958), cert. denied, 358 U.S. 946, 79
      S.Ct. 350, 3 L.Ed.2d 352 (1959); Metropolitan Television Co. v. FCC, 95
      U.S.App.D.C. 326, 221 F.2d 879 (1955).  We have, therefore, used the
      cases dealing with standing in the two tribunals interchangeably.

 [1] The Commission's denial of standing to Appellants was based on the theory
that, absent a potential direct, substantial injury or adverse effect from the
administrative action under consideration, a petitioner has no standing before
the Commission and that the only types of effects sufficient to support
standing are economic injury and electrical interference.  It asserted its
traditional position that members of the listening public do not suffer any
injury peculiar to them and that allowing them standing would pose great
administrative burdens. [FN9]
 
      FN9. See Northern Pacific Radio Corp., 23 P & F Rad.Reg. 186 (1962);
      Gordon Broadcasting of San Francisco, Inc., 22 P & F Rad.Reg. 236
      (1962).

 Up to this time, the courts have granted standing to intervene only to those
alleging electrical interference, NBC v. FCC (KOA), 76 U.S.App.D.C. 238, 132
F.2d 545 (1942), aff'd, 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374 (1943), or
alleging some economic injury, e.g., FCC v. Sanders Bros. Radio Station, 309
U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940).  It is interesting to note,
however, that the Commission's traditionally narrow view of standing initially
led it to deny standing to the very categories it now asserts are the only
ones entitled thereto.  In Sanders the Commission argued that economic injury
was not a basis for standing, [FN10] and in KOA that electrical interference
was insufficient. This history indicates that neither administrative nor
judicial concepts of standing have been static.
 
      FN10. It argued that, since economic injury was not a ground for
      refusing a license, it could not be a basis of standing.  See generally
      Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667 (1924).

 What the Commission apparently fails to see in the present case is that the
courts have resolved questions of standing as they arose and have at no time
manifested an intent to make economic interest and electrical interference the
*1001 **335 exclusive grounds for standing.  Sanders, for instance, granted
standing to those economically injured on the theory that such persons might
well be the only ones sufficiently interested to contest a Commission action.
309 U.S. 470, 477, 60 S.Ct. 693.  In KOA we noted the anomalous result that,
if standing were restricted to those with an economic interest, educational
and non-profit radio stations, a prime source of public-interest broadcasting,
would be defaulted. Because such a rule would hardly promote the statutory
goal of public-interest broadcasting, we concluded that nonprofit stations
must be heard without a showing of economic injury and held that all broadcast
licensees could have standing by showing injury other than financial (there,
electrical interference).  Our statement that Sanders did not limit standing
to those suffering direct economic injury was not disturbed by the Supreme
Court when it affirmed KOA.  319 U.S. 239, 63 S.Ct. 1035 (1943).

 It is important to remember that the cases allowing standing to those falling
within either of the two established categories have emphasized that standing
is accorded to persons not for the protection of their private interest but
only to vindicate the public interest.

 'The Communications Act of 1934 did not create new private rights.  The
purpose of the Act was to protect the public interest in communications.  By
<section> 402(b)(2), Congress gave the right of appeal to persons 'aggrieved
or whose interests are adversely affected' by Commission action. * * * But
these private litigants have standing only as representatives of the public
interest. Federal Communications Commission v. Sanders Radio Station, 309 U.S.
470, 477, 642, 60 S.Ct. 693, 698, 84 L.Ed. 869, 1037.' Associated Industries
of New york State, Inc. v. Ickes, 134 F.2d 694, 703 (2d Cir. 1943), vacated as
moot, 320 U.S. 707, 64 S.Ct. 74, 88 L.Ed. 414 (1943), quoting Scripps-Howard
Radio, Inc. v. FCC, 316 U.S. 4, 14, 62 S.Ct. 875, 86 L.Ed. 1229 (1942).

 On the other hand, some Congressional reports have expressed apprehensions,
possibly representing the views of both administrative agencies and
broadcasters, that standing should not be accorded lightly so as to make
possible intervention into proceedings 'by a host of parties who have no
legitimate interest but solely with the purpose of delaying license grants
which properly should be made.' [FN11]  But the recurring theme in the
legislative reports is not so much fear of a plethora of parties in interest
as apprehension that standing might be abused by persons with no legitimate
interest in the proceedings but with a desire only to delay the granting of a
license for some private selfish reason. [FN12]  The Congressional Committee
which voiced the apprehension of a 'host of parties' seemingly was willing to
allow standing to anyone who could show economic injury or electrical
interference.  Yet these criteria are no guarantee of the legitimacy of the
claim sought to be advanced, for, as another Congressional Committee later
lamented, 'In many of these cases the protests are based on grounds which have
little or no relationship to the public interest.' [FN13]
 
      FN11. S.Rep.No. 44, 82d Cong., 1st Sess. 8 (1951).
 
      FN12. See, e.g., ibid.; S.Rep.No. 1231, 84th Cong., 1st Sess, 1-3
      (1955); H.R.Rep.No. 1051, 84th Cong., 1st Sess. 2-3 (1955); H.R.Rep.No.
      1800, 86th Cong., 2d Sess. 9-10, U.S.Code Cong. & Admin.News 1960, p.
      3516 (1960).
 
      FN13. H.R.Rep.No. 1051, 84th Cong., 1st Sess. 3 (1955).

 We see no reason to believe, therefore, that Congress through its committees
had any thought that electrical interference and economic injury were to be
the exclusive grounds for standing or that it intended to limit participation
of the listening public to writing letters to the Complaints Division of the
Commission. Instead, the Congressional reports *1002 **336 seem to recognize
that the issue of standing was to be left to the courts. [FN14]
 
      FN14. Perhaps the mention in these reports of economic and electrical
      injury arose out of preoccupation with problems surrounding initial
      licensing procedures, as distinguished from those involved in renewal
      proceedings. See p. 1004, infra.

 [2] The Commission's rigid adherence to a requirement of direct economic
injury in the commercial sense operates to give standing to an electronics
manufacturer who competes with the owner of a radio-television station only in
the sale of appliances, [FN15] while it denies standing to spokesmen for the
listeners, who are most directly concerned with and intimately affected by the
performance of a licensee.  Since the concept of standing is a practical and
functional one designed to insure that only those with a genuine and
legitimate interest can participate in a proceeding, we can see no reason to
exclude those with such an obvious and acute concern as the listening
audience.  This much seems essential to insure that the holders of
broadcasting licenses be responsive to the needs of the audience, without
which the broadcaster could not exist.
 
      FN15. Philco Corp. v. FCC, 103 U.S.App.D.C. 278, 257 F.2d 656 (1958),
      cert. denied, 358 U.S. 946, 79 S.Ct. 350, 3 L.Ed.2d 35 (1959).

 There is nothing unusual or novel in granting the consuming public standing
to challenge administrative actions.  In Associated Industries of New York
State, Inc. v. Ickes, 134 F.2d 694 (2d Cir.1943), vacated as moot, 320 U.S.
707, 64 S.Ct. 74, 88 L.Ed. 414 (1943), coal consumers were found to have
standing to review a minimum price order.  In United States v. Public
Utilities Commission, 80 U.S.App.D.C. 227, 151 F.2d 609 (1945), we held that a
consumer of electricity was affected by the rates charged and could appeal an
order setting them.  Similarly in Bebchick v. Public Utilities Commission, 109
U.S.App.D.C. 298, 287 F.2d 337 (1961), we had no difficulty in concluding that
a public transit rider had standing to appeal a rate increase.  A direct
economic injury, even if small as to each user, is involved in the rate cases,
but standing has also been granted to a passenger to contest the legality of
Interstate Commerce Commission rules allowing racial segregation in railroad
dining cars.  Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed.
1302 (1950). Moreover, in Reade v. Ewing, 205 F.2d 630 (2d Cir. 1953), a
consumer of oleomargarine was held to have standing to challenge orders
affecting the ingredients thereof. [FN16]
 
      FN16. In the most recent case on the subject, the Second Circuit,
      relying on cases under the Federal Communications Act, held that
      non-profit conservation associations have standing to protect the
      aesthetic, conservational, and recreational aspects of power
      development.  Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608
      (2d Cir. 1965).

 These 'consumer' cases were not decided under the Federal Communications Act,
but all of them have in common with the case under review the interpretation
of language granting standing to persons 'affected' of 'aggrieved'.  The
Commission fails to suggest how we are to distinguish these cases from those
involving standing of broadcast 'consumers' to oppose license renewals in the
Federal Communications Commission.  The total number of potential individual
suitors who are consumers of oleomargarine or public transit passengers would
seem to be greater than the number of responsible representatives of the
listening public who are potential intervenors in a proceeding affecting a
single broadcast reception area.  Furthermore, assuming we look only to the
commercial economic aspects and ignore vital public interest, we cannot
believe that the economic stake of the consumers of electricity of public
transit riders is more significant than that of listeners who collectively
have a huge aggregate investment in receiving equipment. [FN17]
 
      FN17. According to Robert Sarnoff of NBC the total investment in
      television by American viewers is 40 billion dollars, a figure perhaps
      twenty times as large as the total investment of broadcasters.  FCC,
      Television Network Program Procurement, H.R.Rep.No. 281, 88th Cong., 1st
      Sess. 57 (1963). Forty billion dollars would seem to afford at least one
      substantial brick in a foundation for standing.

 *1003 **337 [3] The argument that a broadcaster is not a public utility is
beside the point.  True it is not a public utility in the same sense as
strictly regulated common carriers or purveyors of power, but neither is it a
purely private enterprise like a newspaper or an automobile agency.  A
broadcaster has much in common with a newspaper publisher, but he is not in
the same category in terms of public obligations imposed by law.  A
broadcaster seeks and is granted the free and exclusive use of a limited and
valuable part of the public domain; when he accepts that franchise it is
burdened by enforceable public obligations.  A newspaper can be operated at
the whim or caprice of its owners; a broadcast station cannot.  After nearly
five decades of operation the broadcast industry does not seem to have grasped
the simple fact that a broadcast license is a public trust subject to
termination for breach of duty.

 [4] Nor does the fact that the Commission itself is directed by Congress to
protect the public interest constitute adequate reason to preclude the
listening public from assisting in that task.  Cf. UAW v. Scofield, 382 U.S.
205, 86 S.Ct. 335, 15 L.Ed.2d 304 (1965).  The Commission of course represents
and indeed is the prime arbiter of the public interest, but its duties and
jurisdiction are vast, and it acknowledges that it cannot begin to monitor or
oversee the performance of every one of thousands of licensees.  Moreover, the
Commission has always viewed its regulatory duties as guided if not limited by
our national tradition that public response is the most reliable test of ideas
and performance in broadcasting as in most areas of life.  The Commission view
is that we have traditionally depended on this public reaction rather than on
some form of governmental supervision or 'censorship' mechanisms.

 It is the public in individual communities throughout the length and breadth
of our country who must bear final responsibility for the quality and adequacy
of television service-- whether it be originated by local stations or by
national networks.  Under our system, the interests of the public are
dominant.  The commercial needs of licensed broadcasters and advertisers must
be integrated into those of the public.  Hence, individual citizens and the
communities they compose owe a duty to themselves and their peers to take an
active interest in the scope and quality of the television service which
stations and networks provide and which, undoubtedly, has a vast impact on
their lives and the lives of their children.  Nor need the public feel that in
taking a hand in broadcasting they are unduly interfering in the private
business affairs of others.  On the contrary, their interest in television
programming is direct and their responsibilities important.  They are the
owners of the channels of television-- indeed, of all broadcasting.  FCC,
Television Network Program Procurement, H.R.Rep. No. 281, 88th Cong., 1st
Sess. 20 (1963).

 Taking advantage of this 'active interest in the * * * quality' of
broadcasting rather than depending on governmental initiative is also
desirable in that it tends to cast governmental power, at least in the first
instance, in the more detached role of arbiter rather than accuser.

 The theory that the Commission can always effectively represent the listener
interests in a renewal proceeding without the aid and participation of
legitimate listener representatives fulfilling the role of private attorneys
general is one of those assumptions we collectively try to work with so long
as they are reasonably adequate.  When it becomes clear, as it does to us now,
that it is no longer a valid assumption which stands *1004 **338 up under the
realities of actual experience, neither we nor the Commission can continue to
rely on it.  The gradual expansion and evolution of concepts of standing in
administrative law attests that experience rather than logic or fixed rules
has been accepted as the guide.

 The Commission's attitude in this case is ambivalent in the precise sense of
that term.  While attracted by the potential contribution of widespread public
interest and participation in improving the quality of broadcasting, the
Commission rejects effective public participation by invoking the
oft-expressed fear that a 'host of parties' will descend upon it and render
its dockets 'clogged' and 'unworkable.'  The Commission resolves this
ambivalence for itself by contending that in this renewal proceeding the
viewpoint of the public was adequately represented since it fully considered
the claims presented by Appellants even though denying them standing.  It also
points to the general procedures for public participation that are already
available, such as the filing of complaints with the Commission, [FN18] the
practice of having local hearings, [FN19] and the ability of people who are
not parties in interest to appear at hearings as witnesses. [FN20]  In light
of the Commission's procedure in this case and its stated willingness to hear
witnesses having complaints, it is difficult to see how a grant of formal
standing would pose undue or insoluble problems for the Commission.
 
      FN18. 47 C.F.R. 1.587 (1965).
 
      FN19. 74 Stat. 892 (1960), 47 U.S.C. <section> 311 (1964).
 
      FN20. 47 C.F.R. <section> 1.225 (1965).

 [5] We cannot believe that the Congressional mandate of public participation
which the Commission says it seeks to fulfill [FN21] was meant to be limited
to writing letters to the Commission, to inspection of records, to the
Commission's grace in considering listener claims, or to mere
non-participating appearance at hearings.  We cannot fail to note that the
long history of complaints against WLBT beginning in 1955 had left the
Commission virtually unmoved in the subsequent renewal proceedings, and it
seems not unlikely that the 1964 renewal application might well have been
routinely granted except for the determined and sustained efforts of
Appellants at no small expense to themselves. [FN22]  Such beneficial
contribution as these Appellants, or some of them, can make must not be left
to the grace of the Commission.
 
      FN21. See 30 Fed.Reg. 4543 (1965).
 
      FN22. We recognize, of course, the existence of strong tides of public
      opinion and other forces at work outside the listening area of the
      Licensee which may not have been without some effect on the Commission.

 Public participation is especially important in a renewal proceeding, since
the public will have been exposed for at least three years to the licensee's
performance, as cannot be the case when the Commission considers an initial
grant, unless the applicant has a prior record as a licensee.  In a renewal
proceeding, furthermore, public spokesmen, such as Appellants here, may be the
only objectors.  In a community served by only one outlet, the public interest
focus is perhaps sharper and the need for airing complaints often greater than
where, for example, several channels exist. Yet if there is only one outlet,
there are no rivals at hand to assert the public interest, and reliance on
opposing applicants to challenge the existing licensee for the channel would
be fortuitous at best.  Even when there are multiple competing stations in a
locality, various factors may operate to inhibit the other broadcasters from
opposing a renewal application.  An imperfect rival may be thought a desirable
rival, or there may be a 'gentleman's agreement' of deference to a fellow
broacaster in the hope he will reciprocate on a propitious occasion.

 Thus we are brought around by analogy to the Supreme Court's reasoning in
Sanders; unless the listeners-- the broadcast consumers-- can be heard, there
may *1005 **339 be no one to bring programming deficiencies or offensive
overcommercialization to the attention of the Commission in an effective
manner.  By process of elimination those 'consumers' willing to shoulder the
burdensome and costly processes of intervention in a Commission proceeding are
likely to be the only ones 'having a sufficient interest' to challenge a
renewal application.  The late Edmond Cahn addressed himself to this problem
in its broadest aspects when he said, 'Some consumers need bread; others need
Shakespeare; others need their rightful place in the national society-- what
they all need is processors of law who will consider the people's needs more
significant than administrative convenience.'  Law in the Consumer
Perspective, 112 U.Pa.L.Rev. 1, 13 (1963).

 Unless the Commission is to be given staff and resources to perform the
enormously complex and prohibitively expensive task of maintaining constant
surveillance over every licensee, some mechanism must be developed so that the
legitimate interests of listeners can be made a part of the record which the
Commission evaluates.  An initial applicant frequently floods the Commission
with testimonials from a host of representative community groups as to the
relative merit of their champion, and the Commission places considerable
reliance on these vouchers; on a renewal application the 'campaign pledges' of
applicants must be open to comparison with 'performance in office' aided by a
limited number of responsible representatives of the listening public when
such representatives seek participation.

 [6] We recognize the risks alluded to by Judge Madden in his cogent dissent
in Philco; [FN23] regulatory agencies, the Federal Communications Commission
in particular, would ill serve the public interest if the courts imposed such
heavy burdens on them as to overtax their capacities.  The competing
consideration is that experience demonstrates consumers are generally among
the best vindicators of the public interest.  In order to safeguard the public
interest in broadcasting, therefore, we hold that some 'audience
participation' must be allowed in license renewal proceedings.  We recognize
this will create problems for the Commission but it does not necessarily
follow that 'hosts' of protestors must be granted standing to challenge a
renewal application or that the Commission need allow the administrative
processes to be obstructed or overwhelmed by captious or purely obstructive
protests.  The Commission can avoid such results by developing appropriate
regulations by statutory rulemaking. Although it denied Appellants standing,
it employed ad hoc criteria in determining that these Appellants were
responsible spokesmen for representative groups having significant roots in
the listening community. These criteria can afford a basis for developing
formalized standards to regulate and limit public intervention to spokesmen
who can be helpful.  A petition for such intervention must 'contain specific
allegations of fact sufficient to show that the petitioner is a party in
interest and that a grant of the application would be prima facie
inconsistent' with the public interest. 74 Stat. 891 (1960), 47 U.S.C.
309(d)(1) (1964).
 
      FN23. 103 U.S.App.D.C. at 281, 257 F.2d at 659 (1958), cert. denied, 358
      U.S. 946, 79 S.Ct. 350, 3 L.Ed.2d 352 (1959).

 The responsible and representative groups eligible to intervene cannot here
be enumerated or categorized specifically; such community organizations as
civic associations, professional societies, unions, churches, and educational
institutions or associations might well be helpful to the Commission.  These
groups are found in every community; they usually concern themselves with a
wide range of community problems and tend to be representatives of broad as
distinguished from narrow interests, public as distinguished from private or
commercial interests.

 [7][8][9] The Commission should be accorded broad discretion in establishing
and applying rules for such public participation,*1006 **340 including rules
for determining which community representatives are to be allowed to
participate and how many are reasonably required to give the Commission the
assistance it needs in vindicating the public interest.  [FN24]  The
usefulness of any particular petitioner for intervention must be judged in
relation to other petitioners and the nature of the claims it asserts as basis
for standing.  Moreover it is no novelty in the administrative process to
require consolidation of petitions and briefs to avoid multiplicity of parties
and duplication of effort.
 
      FN24. Professor Jaffe concedes there are strong reasons to reject public
      or listener standing but he believes 'it does have much to commend it'
      in certain areas if put in terms of 'jurisdiction subject to judicial
      discretion to be exercised with due regard for the character of the
      interests and the issues involved in each case.'  Jaffe, Standing to
      Secure Judicial Review: Private Actions, 75 HARV.L.REV. 255, 282 (1961).
      'There are many persons * * * who feel that neither the industry nor the
      FCC can be trusted to protect the listener interest.  If this is so, the
      public action is appropriate.  But a frank recognition that the action
      is a public action and not a private remedy would allow us to introduce
      the notion of discretion at both the administrative and judicial
      levels.' Id. at 284.

 The fears of regulatory agencies that their processes will be inundated by
expansion of standing criteria are rarely borne out. Always a restraining
factor is the expense of participation in the administrative process, an
economic reality which will operate to limit the number of those who will seek
participation; legal and related expenses of administrative proceedings are
such that even those with large economic interests find the costs burdensome.
Moreover, the listening public seeking intervention in a license renewal
proceeding cannot attract lawyers to represent their cause by the prospect of
lucrative contingent fees, as can be done, for example, in rate cases.

 We are aware that there may be efforts to exploit the enlargement of
intervention, including spurious petitions from private interests not
concerned with the quality of broadcast programming, since such private
interests may sometimes cloak themselves with a semblance of public interest
advocates.  But this problem, as we have noted, can be dealt with by the
Commission under its inherent powers and by rulemaking.

 [10][11] In line with this analysis, we do not now hold that all of the
Appellants have standing to challenge WLBT's renewal.  We do not reach that
question.  As to these Appellants we limit ourselves to holding that the
Cimmission must allow standing to one or more of them as responsible
representatives to assert and prove the claims they have urged in their
petition.

 It is difficult to anticipate the range of claims which may be raised or
sought to be raised by future petitioners asserting representation of the
public interest.  It is neither possible nor desirable for us to try to chart
the precise scope or patterns for the future.  The need sought to be met is to
provide a means for reflection of listener appraisal of a licensee's
performance as the performance meets or fails to meet the licensee's statutory
obligation to operate the facility in the public interest.  The matter now
before us is one in which the alleged conduct adverse to the public interest
rests primarily on claims of racial discrimination, some elements of religious
discrimination, oppressive overcommercialization by advertising announcements,
and violation of the Fairness Doctrine.  Future cases may involve other areas
of conduct and programming adverse to the public interest; at this point we
can only emphasize that intervention on behalf of the public is not allowed to
press private interests but only to vindicate the broad public interest
relating to a licensee's performance of the public trust inherent in every
license.

 Hearing

 [12] We hold further that in the circumstances shown by this record an
evidentiary hearing was required in order *1007 **341 to resolve the public
interest issue.  Under Section 309(e) the Commission must set a renewal
application for hearing where 'a substantial and material question of fact is
presented or the Commission for any reason is unable to make the finding' that
the public interest, convenience, and necessity will be served by the license
renewal.

 The Commission argues in this Court that it accepted all Appellants'
allegations of WLBT's misconduct and that for this reason no hearing was
necessary. [FN25]  Yet the Commission recognized that WLBT's past behavior, as
described by Appellants, would preclude the statutory finding of public
interest necessary for license renewal; [FN26] hence its grant of the one-year
license on the policy ground that there was an urgent need at the time for a
properly run station in Jackson must have been predicated on a belief that the
need was so great as to warrant the risk that WLBT might continue its improper
conduct.
 
      FN25. The Commission also argues that Appellants do not have standing in
      this Court as persons aggrieved or adversely affected under 66 Stat. 718
      (1952), as amended, 47 U.S.C. <section> 402(b) (1964), because all their
      allegations were accepted as true. However, denial of the relief they
      sought rendered them persons aggrieved.
 
      FN26. In the 1959 renewal proceedings the Commission conceded that
      WLBT's misconduct then shown would preclude a grant except that there
      were only 'isolated instances.'

 [13][14] We agree that a history of programming misconduct of the kind
alleged would preclude, as a matter of law, the required finding that renewal
of the license would serve the public interest.  It is important to bear in
mind, moreover, that although in granting an initial license the Commission
must of necessity engage in some degree of forecasting future performance, in
a renewal proceeding past performance is its best criterion.  When past
performance is in conflict with the public interest, a very heavy burden rests
on the renewal applicant to show how a renewal can be reconciled with the
public interest.  Like public officials charged with a public trust, a renewal
applicant, as we noted in our discussion of standing, must literally 'run on
his record.'

 The Commission in effect sought to justify its grant of the one-year license,
in the face of accepted facts irreconcilable with a public interest finding,
on the ground that as a matter of policy the immediate need warranted the
risks involved, and that the 'strict conditions' it imposed on the grant would
improve future operations.  However the conditions which the Commission made
explicit in the one-year license are implicit in every grant.  The
Commission's opinion reveals how it labored to justify the result it thought
was dictated by the urgency of the situation. [FN27]  The majority *1008 **342
considered the question of setting the application for hearing a 'close' one;
Chairman Henry and Commissioner Cox would have granted a hearing to Appellants
as a matter of right.
 
      FN27. '24.  The discussion in B and C, above, establishes that serious
      issues are presented whether the licensee's operations have fully met
      the public interest standard.  Indeed, it is a close question whether to
      designate for hearing these applications for renewal of license.  In
      making its judgment, the Commission has taken into account that this
      particular area is entering a critical period in race relations, and
      that the broadcast stations, such as here involved, can make a most
      worthwhile contribution to the resolution of problems arising in this
      respect.  That contribution is needed now-- and should not be put off
      for the future.  We believe that the licensee, operating in strict
      accordance with the representations made and other conditions specified
      herein, can make that needed contribution, and thus that its renewal
      would be in the public interest.
      25.  But we cannot stress too strongly that the licensee must operate in
      complete conformity with its representations and the conditions laid
      down. In the last two renewal periods, questions have been raised
      whether the licensee has complied with the requirements of the fairness
      doctrine; in the last renewal period, substantial public interest
      questions have been raised by the petition filed by most responsible
      community leaders.  We are granting a renewal of license, so that the
      licensee can demonstrate and carry out its stated willingness to serve
      fully and fairly the needs and interests of its entire area-- so that it
      can, in short, meet and resolve the questions raised.  Further, in line
      with the basic policy determination set out in par. 24, the licensee's
      efforts in this respect must be made now, and continue throughout the
      license period.'

 The Commission's 'policy' decision is not a reflection of some long standing
or accepted proposition but represents an ad hoc determination in the context
of Jackson's contemporary problem. Granted the basis for a Commission 'policy'
recognizing the value of properly run broadcast facilities to the resolution
of community problems, if indeed this truism rises to the level of a policy,
it is a determination valid in the abstract but calling for explanation in its
application.

 [15] Assuming arguendo that the Commission's acceptance of Appellants'
allegations would satisfy one ground for dispensing with a hearing, i.e.,
absence of a question of fact, Section 309(e) also commands that in order to
avoid a hearing the Commission must make an affirmative finding that renewal
will serve the public interest.  Yet the only finding on this crucial factor
is a qualified statement that the public interest would be served, provided
WLBT thereafter complied strictly with the specified conditions.  Not
surprisingly, having asserted that it accepted Petitioners' allegations, the
Commission thus considered itself unable to make a categorical determination
that on WLBT's record of performance it was an appropriate entity to receive
the license.  It found only that if WLBT changed its ways, something which the
Commission did not and, of course, could not guarantee, the licensing would be
proper.  The statutory public interest finding cannot be inferred from a
statement of the obvious truth that a properly operated station will serve the
public interest.

 We view as particularly significant the Commission's summary:

 We are granting a renewal of license, so that the licensee can demonstrate
and carry out its stated willingness to serve fully and fairly the needs and
interests of its entire area-- so that it can, in short, meet and resolve the
questions raised.

 The only 'stated willingness to serve fully and fairly' which we can glean
from the record is WLBT's protestation that it had always fully performed its
public obligations.  As we read it the Commission's statement is a strained
and strange substitute for a public interest finding.

 [16] We recognize that the Commission was confronted with a difficult problem
and difficult choices, but it would perhaps not go too far to say it elected
to post the Wolf to guard the Sheep in the hope that the Wolf would mend his
ways because some protection was needed at once and none but the Wolf was
handy.  This is not a case, however, where the Wolf had either promised or
demonstrated any capacity and willingness to change, for WLBT had stoutly
denied Appellants' charges of programming misconduct and violations. [FN28] In
these circumstances a pious hope on the Commission's part for better things
from WLBT is not a substitute for evidence and findings.  Cf. Interstate
Broadcasting Co. v. FCC,  116 U.S.App.D.C. 327, 323 F.2d 797 (1963).
 
      FN28. The Commission should have discretion to experiment and even to
      take calculated risks on renewals where a licensee confesses the error
      of its ways; this is not such a case.

 Even if the embodiment of the Commission's hope be conceded arguendo to be a
finding, there was not sufficient evidence in the record to justify a 'policy
determination' that the need for a properly run station in Jackson was so
pressing as to justify the risk that WLBT might well continue with an
inadequate performance.  The issues which should have been considered could be
resolved only in an evidentiary hearing in which all aspects of its
qualifications and performance could be explored.

 *1009 **343 It is open to question whether the public interest would not be
as well, if not better served with one TV outlet acutely conscious that
adherence to the Fairness Doctrine is a sine qua non of every licensee.  Even
putting aside the salutary warning effect of a license denial, there are other
reasons why one station in Jackson might be better than two for an interim
period.  For instance, in a letter to the Commission, Appellant Smith alleged
that the other television station in Jackson had agreed to sell him time only
if WLBT did so.  [FN29]  It is arguable that the pressures on the other
station might be reduced if WLBT were in other hands-- or off the air.  The
need which the Commission thought urgent might well be satisfied by refusing
to renew the license of WLBT and opening the channel to new applicants under
the special temporary authorization procedures available to the Commission on
the theory that another, and better suited, operator could be found to
broadcast on the channel with brief, if any, interruption of service.  The
Commission's opinion reflects no consideration of these or other alternatives.
 
      FN29. Letter to Commission from Rev. Robert L. T. Smith, received Jan.
      17, 1962, Record, p. 1.

 [17] We hold that the grant of a renewal of WBLT's license for one year was
erroneous.  The Commission is directed to conduct hearings on WLBT's renewal
application, allowing public intervention pursuant to this holding. Since the
Commission has already decided that Appellants are responsible representatives
of the listening public of the Jackson area, we see no obstacle to a prompt
determination granting standing to Appellants or some of them.  Whether WLBT
should be able to benefit from a showing of good performance, if such is the
case, since June 1965 we do not undertake to decide.  The Commission has had
no occasion to pass on this issue and we therefore refrain from doing so.
[FN30]
 
      FN30. In light of our holding, the special form of license granted here
      is not unlike a special temporary authorization.  Under the Commission's
      position in Community Broadcasting Co., Inc. v. FCC, 107, U.S.App.D.C.
      95, 274 F.2d 753 (1960), it may be that the Commission will conclude
      that good performance under this conditional or probationary license
      should not weigh in favor of WLBT.

 The record is remanded to the Commission for further proceedings consistent
with this opinion; jurisdiction is retained in this court.

 Reversed and remanded.