The opinion
DANAHER, Circuit Judge
(dissenting).
The intervenor sought i increase from 1 kw to 5 kw the power of its standard broadcast station WKTG which operates on a frequency of 730 kc at Thomasville, Georgia. The Commission designated the application for hearing prescribing issues calling for a determination of (1) the areas and population to be served by the proposed increase in power; (2) the interference which the proposed operation would receive from, and cause to, other stations; and (3) whether circumstances justified a waiver of the Commission’s 10 per cent rule. The appellant operating its station WBAM on adjacent channel 740 kc at Montgomery, Alabama, opposed the application. The Hearing Examiner found that a waiver of the 10 per cent provision of the Commission’s Rules was warranted.
The Commission’s Review Board considered the appellant’s exceptions, and after oral argument affirmed the Examiner’s Initial Decision. The Review Board noted that such interference as involved the appellant would occur about 130 miles southeast of Montgomery, Alabama, in an area which lies entirely in the state of Georgia. At least six, and possibly eleven stations now serve some part of that interference area. On the other hand, WKTG would be improving its facilities to the maximum permitted by the Commission’s Rules with respect to the use of its Class II frequency. Moreover, WKTG would extend its service to an additional area of some 2,800 square miles and to about 100,000 persons. Deeming the interference to WBAM to be insignificant, particularly in contrast to the advantages to the public interest which would be served by the grant of additional power, the Review Board concluded that the WKTG application should be granted. The Commission denied the appellant’s application for review of the Review Board’s Decision.
Without more, we would be bound to affirm, for the findings in the foregoing respects have not been shown to be clearly erroneous. They fully support the action taken by the Commission. I believe my colleagues would so agree.
But I think my colleagues are now saying, in effect, that the intervenor after meeting the issues as designated by the Commission, must nevertheless go farther and demonstrate that no other obstacle to waiver may exist. The point of departure between us stems from the fact that the Review Board noted in its opinion that it had gone beyond the issues as explored before the Hearing Examiner. Neither *466 WBAM nor WKTG had offered evidence as to what bearing the increase in power might have on Mexico’s priority of use of 730 kc as a Class I-A channel. Mexico’s right stemmed from an agreement between that country and the United States, with a reservation to the latter that the Commission might assign Class II daytime stations, such as WKTG, on the 730 kc frequency with a maximum power of 5 kw. 1 Although neither of the parties had considered that factor, the Board satisfied itself that the Mexican treaty created no bar to the grant of the pending application. Also, the Board examined into what effect the grant of the WKTG application might have upon future assignments of stations on other frequencies, although neither WBAM nor WKTG had offered evidence as to this possibility before the Examiner.
Obviously, inquiries into such phases come within the competence of the expert Board as it executes its duty to consider all aspects of a problem committed to it. The personnel of the Review Board must “be qualified, by reason of their training, experience, and competence, to perform * * * review functions * * 2 It is responsible solely to the Commission. “Neither the Commission nor any of its members will discuss the merits of any matter pending before the Board with the Board or any of its members.” 3 So, it was the task of the independent Board here to consider the Examiner’s findings and the record before it. It ascertained grounds upon which a waiver of section 3.28(d) of the Commission’s Rules might rest and that was sufficient. Its additional study simply demonstrated that there was no other bar to the waiver. The intervenor had amply borne its burden of proof as to the issues as designated by the Commission.
The Board merely drew upon its expertise and upon the record before it in observing; “Furthermore, as an additional factor,” that the grant would not adversely affect “future assignments of stations on the frequencies pertinent to such consideration.” The Board so stated after independent evaluation of the data, the exhibits and the Commission’s Rules with reference to the facts so readily discernible. The Board might just as well have said: “We have also considered the impact the pending grant might have upon frequencies which have been reserved for military use, 4 and find no adverse results' will follow.” In like manner the Board well may have considered yet other “factors” of which it made no mention in its decision. Not only was the Board an expert body with definite duties with respect to the record it was considering, it was bound, no matter what the parties did or said, to apply the public interest touchstone. It might even have decided unless its action were arbitrary that the application should be denied. Here, however, the Board drew its projections and calculations from the available engineering and technical data shown on the record before it.
If WBAM had claimed that the agency action had rested upon official notice of facts not appearing of record, the appellant on timely request would have been entitled to an opportunity to show 5 that the result was lacking in appropriate support. No such request was made.
*467 Undoubtedly the reason appellant submitted no such request was that the Board composed of experts said
“in view of the particular frequencies involved here, the nature of the evidence already in the record, i. e., applicant’s Exhibit 1, Figure 8, and the provisions of the Commission’s Rules in regard to classifications and assignments of the adjacent channel frequencies here pertinent, an evaluation of the impact can be readily made.”
Of course, I agree with my colleagues that WKTG had the burden of establishing that a waiver of the 10 per cent rule was as appropriate in the use of 5 kw power as had already been found in its use of 1 kw power. The difference in interference, as it turned out, was negligible. WKTG had already fully sustained its waiver burden as the Examiner found and as the Board agreed. That could and should have ended this case so far as there had been an issue simply as between WKTG and WBAM.
At the risk of certain redundancy, let me reemphasize the Board’s explanation that it took upon itself the consideration of other factors. The Board knew very well that it is the Commission’s duty not only to supervise radio traffic but to determine the composition of that traffic, 6 even to an ascertainment of whether or not the requested action was technically feasible. In behalf of the Commission the Board initiated its own public interest inquiry. It acted in light of the engineering data and the exhibit already of record as correlated with the Commission’s Rules. The Board in light of its own analysis could discern that the proposed increase in power would be without adverse effect on the use of the frequency elsewhere. Such was the basis upon which it applied its expertise, quite equal to measurement of the effect of the waiver upon other frequencies, 700 kc, 710 kc, 720 kc, 750 kc and 760 kc. Four of those frequencies simply were not available for use in the affected area under the Rules, the Board stated. Should WKTG have to prove that? If the Board had stated only that the Mexican treaty created no barrier to a waiver, surely my colleagues would with equal logic insist that WKTG must now prove out that result as well. I hope my position is clear: the result as seen by the Board was just as obvious as that north latitude 88° 53' 51" and west longitude 77° O' 33" spells “Washington, D. C.” to an airlines pilot or the C.A.B.
My colleagues are saying, in effect, that this applicant for a waiver on clear channel frequency 730 kc must show that use of that frequency will not cause nonwaiverable difficulty to someone else, somewhere else, at some future time. I do not agree. 7
I submit that the Board’s action and the Commission’s orders were clearly right. This case should not be remanded to an overburdened Commission. I would affirm.
. Interestingly enough, appellant makes no challenge to the Board’s finding that the 730 kc frequency was thus available although the Board’s conclusion is clearly based upon its expertise as related to the record here.
. 47 U.S.C. § 155 (d) (8) (Supp. V, 1964).
. 47 C.F.R. § 0.361 (e) (1964); and see 47 C.F.R. § 0.365 (1964) as to the Board’s authority.
. Cf. Bendix Aviation Corp., Bendix Radio Div. v. F. C. C., 106 U.S.App.D.C. 304 , 272 F.2d 533 (1959), cert. denied Aeronautical Radio, Inc. v. United States, 361 U.S. 965 , 80 S.Ct. 593 , 4 L.Ed.2d 545 (1960).
. See 5 U.S.C. § 1006 (d) (1958).
. Interstate Broadcasting Company v. F. C. C., 105 U.S.App.D.C. 224 , 265 F.2d 598 (1959).
. Even if Deep South had never participated in this ease, it would have been the Commission’s duty to ascertain the public interest in light of the data before it. 'See 47 U.S.C. §§ 308 , 309 (Supp. V, 1964).