author: PER CURIAM:

text:
    DOCK BUILDERS, SHORERS, HOUSE MOVERS, PILE DRIVERS AND FOUNDATION WORKERS, LOCAL UNION NO. 1456, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Vibroflotation Foundation Co., Intervenor.
    No. 73-1503.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 17, 1974.
    Decided May 31, 1974.
    Clifford S. Bart, for petitioner.
    Frederick Sagan, Atty. N.L.R.B., of the bar of the United States District Court for the District of Columbia, pro hac vice by special leave of court, with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., were on the brief, for respondent.
    Carl G. Coben, was on the brief for in-tervenor.
    Before BAZELON, Chief Judge, and LEVENTHAL and ROBB, Circuit Judges.
   PER CURIAM:

This is a petition to review a decision and order of the National Labor Relations Board in an unfair labor practice proceeding in which the Board found that the Dock Builders Union was in violation of §§ 8(b) (4) (i) and (ii)(D) of the National Labor Relations Act. The Board found that the Dock Builders was engaged in conduct prohibited by those sections with an object of forcing the Vibroflotation Foundation Company to assign disputed work to employees this union represented. The Board, in an earlier proceeding conducted pursuant to section 10 (k) of the Act, issued an affirmative award of the disputed work to the Company’s employees represented by Laborers’ International Union of North America, Local Union No. 343, AFL-CIO and Local Union No. 835, International Union of Operating Engineers, AFL-CIO and determined that employees represented by Dock Builders were not entitled to perform the disputed work.

This decision is not contested on the merits. The contention raised by the Dock Builders on this petition to review is that there was no jurisdictional dispute and that even if there had been a violation the scope of the award should have been limited.

The underlying facts are presented in some length in the decision of the Administrative Law Judge, adopted by the Board, and we do not think it necessary to restate them.

While the issues presented by petitioner are framed in alternative ways, what seems to us to be the salient contention of the Dock Builders is that the Board’s order should not be sustained because the Dock Builders were merely attempting to claim work that it had become contractually entitled to in the past, and it had only become the subject of dispute because of the company’s attempt to create conflicting claims by offering the work to another union (the Laborers), which had not claimed it but was willing to accept the employer’s assignment. The difficulty is the Board’s finding that the record contains no evidence of the contract that is the key ingredient of the Dock Builders’ contention. After the hearing held in June, 1972, in the 10 (k) proceeding, the Dock Builders presented to the Board a letter moving for a re-opening of the 10(k) record. That motion was opposed by the Company. The Board denied the motion on the ground that the union had failed to set forth facts establishing that the evidence was previously unavailable or could not have been made available at the time of the scheduled 10(k) hearing by the exercise of proper diligence. An effort was made in the 8(b)(4)(D) hearing to present testimony concerning such contract. This was excluded. The Union did not specifically alert the Administrative Law Judge or the Board that this evidence was sought to be admitted for a purpose other than the merits of the resolution of the jurisdictional dispute. We think that under the particular circumstances the Board cannot be held to have acted arbitrarily in treating this case as being made on a record that did not contain a showing of the contract. In that limited fact setting, we see no substantial basis for sustaining petitioner’s contentions that the order exceeded the Board’s authority. The petition to review will be denied. The Board’s cross-petition for enforcement of its order will be granted.

So ordered.

      . Dock Builders, Shorers, House Movers, Pile Drivers and Foundation Workers, Local Union No. 1456, United Brotherhood of Carpenters and Joiners of America, AFL-CIO.

      . This is recorded at 203 NLRB No. 64.

      . The earlier decision is reported at 199 NLRB No. 53.


source: Caselaw Access Project

author: BAZELON, Chief Judge: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America v. William H. CALLOWAY, Appellant.
    No. 73-1139.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 21, 1974.
    Decided June 19, 1974.
    Rehearing Denied Aug. 30, 1974.

      James R. Loftis, III, Washington, D. C. (appointed by this Court), for appellant.
    Douglas M. Jackson, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, John A. Terry, Asst. U. S. Atty., and Broughton M. Earnest, Asst. U. S. Atty., at the time the brief was filed, were on the brief for appellee. Earl J. Silbert, U. S. Atty., also entered an appearance for appellee.
    Before BAZELON, Chief Judge, Mc-GOWAN, Circuit Judge, and CHRISTENSEN, Senior District Judge for the District of Utah.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   BAZELON, Chief Judge:

Appellant, who was seventeen years old at the time of the alleged offenses, was tried and convicted as an adult, and received concurrent ten year sentences under the Federal Youth Corrections Act. On appeal he claims that he was denied a speedy trial by the fifteen month delay between arrest and trial, during which time he was incarcerated in the D.C. Jail. In a judgment entered February 26, 1974, 492 F.2d 669, this court reversed appellant’s convictions and ordered dismissal of the indictment “for lack of a speedy trial.” We announced that this opinion would follow.

I

Appellant was arrested on July 15, 1971. According to the police he confessed to participating in a robbery-burglary, but denied participation in any rape. Nonetheless, he was charged solely with rape. On the basis of this charge, appellant, pursuant to a recent amendment to the D.C.Code, was treated as an “adult” despite his age of seventeen years. Because he was unable to post a $10,000 bond, he was confined in the D.C. Jail.

On November 2, 1971, four months after his arrest and confinement, appellant and three co-defendants were charged in a superseding indictment with robbery, burglary, rape and assault with a deadly weapon. Shortly thereafter, counsel were appointed, and bail was reset at $5,000 despite a recommendation by the D.C. Bail Agency that appellant be released to the custody of his mother.

On November 26, 1971, appellant filed motions to suppress his confession on the ground that it was coerced by promises and threats, and to dismiss his indictment on the ground that the statute classifying him as an “adult” was a denial of due process. No action was taken on the motion to suppress for more than seven months. The motion to dismiss the indictment was denied without hearing one week after it was filed.

At a status hearing on January 17, 1972, trial was set for April 17. Appellant filed a motion for release on personal recognizance on February 9, but this motion was not acted upon. On March 29, 1972, appellant’s court appointed counsel moved to withdraw from the case on the ground that they were “unable to achieve any significant degree of communication with the defendant.” The court denied this motion without stating reasons. Counsel also moved on March 29 for a mental examination of Calloway alleging only that “[i]t has come to [our] attention that the physical and mental well-being of our client very well might be in question at this time.” (The record discloses that after conviction, at a hearing on bond pending appeal, appellate counsel, who was not trial counsel, advised the court that he had been informed by trial counsel that the March 29 motion for a mental examination “was necessitated by the fact that the defendant got ahold of some drugs while he was incarcerated [at the D.C. Jail] and in fact had a seizure and I believe there was a bench conference, not reflected in the transcript, during which this was brought to the court’s attention.” In addition, after oral argument in this court, counsel lodged a contemporaneous memorandum of trial counsel, concerning the March 29th motion for a mental examination, which reads in pertinent part:

[Trial counsel] were told that Callo-way had had a seizure, involving tightening of his mouth muscles, throat, tongue and knees. The Marshal told us that defendant claimed to have taken 10 benzadrine capsules yesterday . . . Defendant refused to see both of us. When a nurse passed, I asked her whether or not defendant was faking. She said that he was not. That she actually saw the spasm and this was the 3rd such case she had seen this week involving benzadrine at D.C. Jail.

The court granted appellant’s motion and ordered that the examination be conducted by the Office of Forensic Psychiatry rather than Saint Elizabeths Hospital for the express purpose of expediting the report and insuring its completion before “the trial date which is set for April 17, 1972.”

On April 17 two of Calloway’s co-defendants pled guilty, and the U. S. Attorney indicated that the charges against the third co-defendant would be dropped upon imposition of a sentence in another case. The court then stated that, despite its order requiring appellant’s psychiatric report to filed by that date, the report had not yet been filed. Trial was reset for June 12, 1972.

The report of the Office of Forensic Psychiatry is dated June 1, 1972, but so far as we can determine it was never made a part of the record below, nor is it noted on the district court’s docket sheet. We obtained a copy of the report from the Office of Forensic Psychiatry. In its entirety, it reads:

In response to your Order, this 20 year old. inmate was examined at the District of Columbia Jail on April 11, 1972, with a follow-up exam on May 2, 1972.
He was found on psychiatric evaluation to be competent to understand the proceedings against him and to assist counsel in his own defense. Furthermore, he was found to have no major mental illness which would have substantially impaired his mental processes or behavioral controls; nor did any such illness seem to exist during the period of the alleged offenses.

On June 12, the date set for trial, defense counsel advised the court that the psychiatric report, dated June 1, “has not yet been prepared.” The U. S. Attorney stated that his office had not contacted the Office of Forensic Psychiatry with respect to Calloway’s examination. The court asserted that it would “get on Forensic Psychiatry myself today and we will get something in here by the end of the week.” The U. S. Attorney then suggested that a hearing be set on appellant’s motion to suppress, which had been filed seven and one half months earlier, and stated that if Calloway prevailed the government “might not be able to go forward,” and if he lost, appellant might enter a plea.

The suppression hearing commenced on June 23; it was continued so that the government could call a rebuttal witness, then continued again for an unstated reason until July 7, 1972, at which time the motion to suppress was denied. Trial was then set for July 27, 1972.

On July 24, the government requested a continuance because one of the prosecutors assigned to the trial might be trying another case, and because several government witnesses were in New York, and therefore would be unavailable on July 27. The defense objected to the continuance since “this man has been locked up since July 15 of last year.” The court responded “Also for something other besides this, as I recall.” Counsel corrected the court, stating that appellant was confined solely because of the present charges, and asked the court to reconsider appellant’s motion for release. Although the court informed counsel that it would grant the motion if the juvenile authorities would assume custody of Calloway, it later changed its mind because:

I didn’t realize this rape was in here. We may have to do some rethinking about the bond. You had better make a written motion.

The court then granted the government’s motion for a continuance, and trial was set for October 18, 1972. No written motion for release was subsequently filed, apparently because the juvenile authorities refused custody of Calloway because of his adult charges.

On October 10, 1972, appellant’s counsel filed a motion for dismissal of his indictment for lack of a speedy trial, claiming that he was prejudiced both by his continuous incarceration, and in the preparation of his defense since he “has had difficulty in relating to counsel an exact description of where he was at the time and on the date the alleged offense occurred.” This motion was denied after hearing on October 13, 1972. On October 17, the trial date, appellant filed a pro se motion to dismiss for want of a speedy trial, which was also denied.

At trial the government showed that a brutal robbery-burglary-rape had taken place, although none of the victims could identify any assailant. The evidence against appellant consisted of his fingerprint at the scene of the crime, his confession, and the reluctant testimony of a co-defendant, who had pled guilty, that Calloway was with him when he committed the robbery, but that he, the co-defendant, “didn’t see no rape.” At the close of the government’s ease, the court granted a defense motion for judgment of acquittal on the rape counts.

Appellant testified that he could not remember where he was on the specific night in question, but said he was probably at his brother’s house since he usually spent his evenings there. He stated that the fingerprint at the scene of the crime was not his, and that his signed confession was secured by threats.

Upon conviction Calloway was returned to the D.C. Jail where he remained until January 5, 1973, when at the request of the government he was committed to the Medical Facility at Springfield, Missouri, for evaluation under the Youth Corrections Act. On the basis of the Springfield report, he was given a youth sentence despite government allocution for an adult sentence. Finally, on June 6, 1973 — seven and a half months after his conviction, and almost two years after his arrest — Callo-way was transferred to the Lorton Youth Center for “rehabilitative treatment.”

II

Calloway’s sole contention is that he was denied a speedy trial by the fifteen month delay beteween his arrest and trial. In this jurisdiction a delay of more than one year raises a speedy trial claim of prima facie merit. And in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court enumerated three factors other than the length of delay that should be considered in weighing a speedy trial claim: (a) the reasons for the delay; (b) the defendant’s assertion of his right to a speedy trial; aiN (c) the prejudice to the defendant.

A. Reasons for Delay

Appellant was arrested on July 15, 1971, but was not indicted until November 2, 1971. There is nothing in the record, nor has any reason been brought to our attention, to explain this delay. Particularly since Calloway was incarcerated during this time, the government was obliged to proceed swiftly.

The time between arraignment on November 15, 1971, and the original date set for trial — April 17, 1972 — was occupied with what is called the “deliberate pace of the system,” which included a mental examination of appellant’s co-defendant, the filing of several motions by appellant, and a busy court calendar. During this period, appellant moved for a mental examination, and in ordering the examination the court took pains to insure that the trial date would not thereby be delayed. Nevertheless, as indicated above, the delay in the examination and the filing of the report caused a trial postponement of more than three months until July 27, 1972. In these circumstances this three month delay cannot, as the government argues, be attributed to appellant simply because he moved for the examination.

Finally, since the government moved for a continuance, it must bear the responsibility for the delay from July 27, 1972, to the actual date of trial, October 17, 1972. The government attempts to justify this continuance on the ground that it needed the time to secure out-of-town witnesses. The July 27 trial date was set on July 7, and the government offers no explanation as to why it could not produce witnesses from New York City in this period. In light of the lengthy delay that had already occurred, and appellant’s continued confinement, these three months were highly significant.

B. Assertion of the Right

The government argues that Calloway’s “failure to assert his . right [to a speedy trial] until the very eve of trial weighs heavily against his claim . . . ” The government fails to acknowledge, however, that Calloway continued throughout the fifteen months to press his motion for release pending trial. Since the harm suffered by the delay was the personal prejudice to appellant resulting from confinement at the D.C. Jail, his motion for release was for all relevant purposes the functional equivalent of pressing his right to a speedy trial. In any event, the obligation is on the government to bring a defendant to trial, and when the defendant is confined pre-trial the government must assume he desires a speedy trial unless he indicates the contrary.

Indeed, in the instant case the government itself failed to comply with its obligation under Rule 46(g) of the Federal Rules of Criminal Procedure to file a bi-weekly report advising the court of the reasons for appellant’s continued incarceration. The purposes of this Rule are to require the government to share the burden of preventing unnecessary pre-trial confinement, and to keep the trial court on notice of the special need for a speedy trial since the defendant is confined. In the face of its own dereliction the government is clearly not in a position to claim that appellant should be penalized for failing to press his right.

C, Prejudice

In Barker, supra, the Court indicated that “[pjrejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect.” The Court identified three such interests, the first of which is “to prevent oppressive pretrial incarceration” because:

[t]he time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time.

The personal prejudice resulting from pre-trial incarceration was exacerbated in the present case by two factors. First, the defendant was a youth being confined in an adult jail. As Judge Wright warned in his dissent in United States v. Bland, 153 U.S.App.D.C. 254, 472 F.2d 1329, 1349-1350 (1972) — in which this court upheld the D.C. statute permitting youths aged 16 and 17 to be tried as adults solely on the basis of the charge filed by the prosecutor — “I am confident that a child is unlikely to sue-, ceed in the long, difficult process of rehabilitation when his teachers during his confinement are adult criminals.” Subsequent events have shown that this confidence was well placed. Speaking of the D.C. Jail — the institution in which Calloway was confined for almost two years — Judge Wright later wrote:

The recent prisoners’ riot' . tragically demonstrates the inhumanity as well as the danger of treating children as adults for the purposes of correction and rehabilitation. Apparently one of the causes of the prison riot was the homosexual assaults by the adult prisoners on the 16- and 17-year old children being held in the jail as “adult” prisoners.

The record in this case, too, lends heavy support to the view that confining young offenders with hardened criminals is equivalent to simply abandoning them. In Calloway’s jail records there are several entries in which he claims he was homosexually assaulted by other inmates. Moreover, Calloway (and apparently others) were able to secure enough drugs to induce a seizure. As a result he became so hostile and uncommunicative that his lawyers requested permission to withdraw from the case. Finally, when, after serving two years in the D.C. Jail, Calloway was sentenced under the Youth Corrections Act, he immediately “tr[ied] to be a leader of his peers [by] impress [ing] the other inmates with his belligerent attitude.” From the date of his arrival at the Youth Center the authorities noted that he “will probably be a problem in the future.”

The second factor exacerbating the prejudice from incarceration in this case was Calloway’s background when he arrived at the D.C. Jail. The Supreme Court in Barker pointed to the “detrimental impact on the individual” caused by the “dead time” spent in jail. For Calloway that “dead time” was especially deadly. He was the sixth of seven children born to a rural Georgia family that moved to Washington when Callo-way was five. His social files and sentencing reports indicate that his father had a “severe drinking problem,” and therefore was “unemployed much of the time.” Moreover, the father apparently did “not show much interest in his entire family,” and the familial responsibilities fell upon Calloway’s mother who is described as “intellectually limited, and . . . suffer [ing] from a hearing problem and a bad heart.” “She appears to be overwhelmed with her responsibilities of caring for the family,” which, besides her seven children, included seven grandchildren. All sixteen people lived in a six room, $95 per month, apartment that was eventually condemned. Particularly in recent years, they were supported largely by public assistance.

Calloway himself received little schooling, and his records indicate an achievement level of mid-fourth grade and an I.Q. test score between 75 and 80. He claims his closest childhood friends were his two older brothers who were nearest in age to him; both of these youths have serious criminal records (the older one is presently serving a sentence for murder). Calloway was first arrested at age nine, and despite — or perhaps because of — the fact that he spent his young life revolving in and out of juvenile institutions he developed no useable academic or vocational skills, as tests at the Lorton and Springfield Youth Centers showed. Between ages nine and eleven he was charged with ten different offenses, most of which were in the nature of petty thefts committed so that Calloway could have money for “candy and other articles.”

The juvenile caseworkers assigned to Calloway realized from the outset that he was the “product of a socially disorganized, very deprived home situation,” and that his family “was in need of counselling for their many family problems.” Nonetheless, the records reflect that no such counselling was forthcoming.

At age eleven Calloway was placed in the Maple Glen Children’s Center where he remained for almost a year. Shortly after his release he ceased attending school and started staying out all night; as a result he was returned to the Children’s Center for another ten months and was released because “his adjustment was good.” Immediately following release two additional charges were filed against him and he was sent to the juvenile facility at Cedar Knoll where he remained for ten months. After release he was again arrested and returned to Cedar Knoll from which he absconded. He apparently became a user of heroin, committed several more offenses and was committed to the juvenile home at Oak Hill. Six months later he escaped, and within a month allegedly committed the offense that led to his arrest in this case.

Calloway’s presentenee report indicates that “he appears to have been easily led into th[is] offense by more aggressive delinquent peers.” His psychological evaluation at the Lorton Youth Center states that he "wants to be accepted by his peers and be a part of the ‘in’ crowd.” Yet, without good reason, this youth was allowed to languish for almost two years in the D.C. Jail where his companions and role models included hardened and sophisticated criminals. Of course, we cannot be certain that had Calloway been spared these two years in the D.C. Jail subsequent events would have been different. But after suffering such a devastating childhood Callo-way may have had only a bare chance of reversing the only way of life he knew. That chance was not simply prejudiced by his confinement in the D.C. Jail; it was, as subsequent events reveal, destroyed.

Nothing in the record suggests that anyone who participated in these proceedings from arrest to sentencing sought to prevent Calloway from receiving the special care he so badly needed. It would appear rather that institutional pressures — created, for example, by “the deliberate pace of the system” — resulted in indifference to Calloway’s plight. Nevertheless, numbness to the needs of people like Calloway, from whatever source, is intolerable. “The worst sin towards our fellow creatures is not to hate them but to be indifferent to them: that is the essence of humanity . ”

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.

ORDER

PER CURIAM.

On consideration of appellee’s suggestion for rehearing en banc and a majority of the Judges of the Court in regular active service not having voted in favor of such rehearing, it is

Ordered by the Court en banc that the aforesaid suggestion is denied.

Circuit Judges TAMM, ROBB and WILKEY would grant appellee’s suggestion for rehearing en banc.

Circuit Judge MacKINNON would also grant the suggestion. Circuit Judge MacKINNON is of the opinion that the panel opinion misapplies Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) and 23 D.C.Code § 1303 (h)(6) and is contrary to our opinion in Smith v. United States, 135 U.S.App.D.C. 284, 418 F.2d 1120 (1969). Also the time he was in jail pre-trial is credited on his sentence and there was no demonstrated prejudice to his defense.

      . 18 U.S.C. § 5010(c).

      . 16 D.C.Code § 2301 (3) (A) provides :
      Tire term “child” means an individual who is under 18 years of age, except that the term “child” does not include an individual who is sixteen years of age or older and— (A) charged by the United States Attorney with (i) murder, forcible rape, burglary in the first degree, robbery while armed, or assault witli intent to commit any such offense, . . .
      This court upheld the constitutionality of this statute over Judge Wright’s strenuous dissent. United States v. Bland, 153 U.S. App.D.C. 254, 472 F.2d 1329 (1972), cert. denied, 412 U.S. 909, 93 S.Ct. 2294, 36 L.Ed.2d 975 (1973). Compare Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

      . This court lias disapproved of such useless conclusory reports on numerous occasions. See, e. g., Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967); Rollerson v. United States, 119 U.S.App.D.C. 400, 343 F.2d 269 (1964).

      . The trial commenced one day ahead of schedule.

      . At first, the witness testified that Calloway did not accompany him on the night of the robbery. Then, after the court read the witness liis testimony at the time his plea was taken which stated that Calloway was with him at the time of the crime, and threatened the witness with a perjury charge, he testified that Calloway was with him.

      . Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684 (1966). See also United States v. Dunn, 148 U.S.App.D.C. 91, 459 F.2d 1115 (1972); United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108 (1971). Indeed, this court has recently viewed with disfavor delays of less than one year. See United States v. Parish, 152 U.S.App.D.C. 72, 468 F.2d 1129 (1972); United States v. Ransom, 151 U.S.App.D.C. 87, 465 F.2d 672 (1972).

      . See, e. g., United States v. Bishton, 150 U.S.App.D.C. 51, 463 F.2d 887 (1972); United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114 (1972).

      . See Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684, 688 (1966) (“The passing of such a considerable length of time, no matter who is ‘at fault,’ should act as a spur to the Government to seek prompt trial. If the Government is lax in this regard, it is appropriate to take the earlier period into account . . . ”).

      . Government Brief at 16.

      . Bee section C infra.

      . See Barker v. Wingo, 407 U.S. 514, 527, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108, 1111 (1971) (opinion of Leven-thal, J.) (“In our jurisdiction it is peculiarly appropriate to hold the Government to the obligation of arranging a speedy trial.”).

      . See Barker v. Wingo, supra, 407 U.S. at 527, 92 S.Ct. 2182.

      . Rule 46(g) provides:
      . . . The attorney for the government shall make a biweekly report to the court listing each defendant and witness who lias been held in custody pending indictment, arraignment or trial for a period in excess of ten days. ... As to each defendant so listed the attorney for the government shall make a statement of the reasons why the defendant is still held in custody.

      . The government’s brief fails to address the issue of why it neglected to comply with its obligation in this case. At oral argument the government indicated that its dereliction with respect to the requirements of Rule 46(g) extends beyond the instant case.

      . See 1966 Committee Note to Rule 46, Federal Rules of Criminal Procedure; II.R. Rep.No. 91-907, 91st Cong., 2nd Sess. (1970).

      . 407 U.S. at 532, 92 S.Ct. at 2193.

      . Id. at 532-533, 92 S.Ct. at 2193.

      . See pp. 313-315, supra.

      . United States v. Bland, 153 U.S.App.D.C. 254, 472 F.2d 1329, 1351 (1972) (Statement of Wright, J., as to why he would grant rehearing en banc).

      . This and the following quotation were taken from appellant’s file at the Lorton Youth Center.

      . The information contained in this and the following paragrapli was taken from appellant’s juvenile social file, his presenteuce report in this case, his Youth Act evaluation report done at the Federal Penitentiary at Springfield, Missouri, and liis file at the Lorton Youth Center.

      . Calloway’s section 5010(e) study was prepared at the Federal Penitentiary at Springfield, Missouri.

      . 23 D.C.Code § 1303(h)(6) provides:
      The [Bail] agency shall' — -
      prepare, in cooperation with the United States marshal for the District of Columbia and the United States attorney for the District of Columbia, such pretrial detention reports as are required by Rule 46(h) of the Federal Rules of Criminal Procedure;

      . Calloway was eventually released pending resolution of this appeal to the third party custody of Bon-A-Bond, a community-based rehabilitation program staffed by former inmates. ITis records indicate that he progressed well during his first three months: “Mr. Calloway becomes more and more involved as the days go by. His attitude and behavior continues [sic] to improve.” In late January, however, as his appeal drew near, he stayed away an extra day on a weekend pass, and when he returned he was reported for “rais[ing] hell” in the dining room. As a result Bon-A-Bond informed him that they would no longer accept custody and he would be returned to prison. He called his attorney, and said he would flee rather than return to prison. Despite counsel’s pleadings, he fled. Recently, the Clerk of this court was notified that Calloway is presently incarcerated in a Georgia jail— near wdiere he was born — charged with burglary.

      . George Bernard Shaw, Devil’s Disciple, Act II (1901).


author: TAMM, Circuit Judge: PER CURIAM.

text:
    COLUMBUS BROADCASTING COALITION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WBNS TV, Inc., RadiOhio, Inc., Intervenors.
    No. 73-1074.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 5, 1974.
    Decided June 28, 1974.
    Rehearing Denied Nov. 22, 1974.

      Charles M. Firestone, Washington, D. C., with whom Albert H. Kramer and Frank W. Lloyd, III, Washington, D. C., were on the brief, for appellant.

      Philip V. Permut, Counsel, Federal Communications Commission, with whom John W. Pettit, Gen. Counsel, and Joseph A. Marino, Associate Gen. Counsel, Federal Communications Commission, were on the brief, for appellee. R. Michael Senkowski, Counsel, Federal Communications Commission, also entered an appearance for appellee.
    Daniel W. Toohey, Washington, D. C., with whom Thomas H. Wall and Richard D. Marks, Washington, D. C., were on the brief, for intervenors.
    Before TAMM, LEVENTHAL and ROBINSON, Circuit Judges.
   TAMM, Circuit Judge:

This is an appeal pursuant to 47 U.S. C. § 402(b)(6) (1970) challenging an order of the Federal Communications Commission (hereafter “the Commission”) granting license renewal for stations WBNS-AM, FM, and TV, Columbus, Ohio. The basic issue raised is whether the Commission could reasonably find that appellant had not raised substantial and material issues of fact sufficient to demonstrate prima facie that license renewal would contravene the public intei’est. We hold that the Commission could so find and, accordingly, affirm the Commission’s order granting the license renewal application and dismissing appellant’s Petition to Deny renewal.

I. BACKGROUND

Appellant Columbus Bi’oadcasting Coalition (hex’eafter “the Coalition”) is composed of individuals residing in the Columbus stations’ broadcast area. The Coalition seeks, inter alia, to advance the interests of black residents of Columbus. The Coalition here challenges the granting of three separate license renewal applications, timely filed by licensees on July 1, 1970. On August 31, 1970, the Coalition, pursuant to Commission rules, 47 C.F.R. § 1.580(i) (1970), filed a petition to deny the license renewal applications. The Coalition sought a hearing to examine licensees’ ascertainment efforts, alleged monopolistic practices, employment practices, and programming performance. After several extensions of time were granted to both sides and numerous oppositions and replies thereto had been filed, the Commission agreed to consider the matter upon all submitted papers.

On January 3, 1973, the Commission issued its Decision and Order, granting the license renewal applications and denying appellant’s petition to deny the renewal. The Commission concluded, after a full consideration of all the pleadings, that the Coalition had raised no substantial or material issues of fact which established a prima facie case for denial, and thus no evidentiary hearing was required. Additionally, the Commission found that the grant of these renewal applications would serve the public interest, convenience and necessity.

The Coalition now brings this appeal, asserting that it raised substantial and material issues of fact requiring a heax--ing, and the Commission erred in not granting such a hearing. In particular, appellant submits that substantial and material issues of fact exist as to the following matters:

(a) that renewal of the licenses would lead to excessive concentration in control of “mass media” in Columbus ;
(b) that renewal of the FM license does not serve the public interest in that
1) WBNS-FM’s past programming performance varied from its prior promised programming;
2) WBNS-FM’s past programming did not meet the needs of the black community;
3) WBNS-FM’s proposals for future programming are unsatisfactory;
(c) that the licensees discriminated in employment.

Additionally, appellant argues that the Commission failed to give its allegations a “hard look.”

II. THE STANDARD OP] REVIEW

Before discussing each of appellant’s alleged errors, we must focus on section 309(d) of the Communications Act of 1934, which governs Commission conduct in the area of broadcast license applications. In a thorough opinion which analyzed section 309(d), we said recently:

The legislative history accompanying the 1960 amendment of Section 309(d) indicates Congress’ intent that petitions to deny filed under the amended Section 309(d) should make
a substantially stronger showing of greater probative value than is now necessary in the case of a post grant [of initial license] protest. The allegation of ultimate, conclu-sionary facts or more general allegations on information and belief, supported by general affidavits, as is now possible with protests, are not sufficient.
In the event, then, that a petition to deny does not make substantial and specific allegations of fact which, if true, would indicate that a grant of the application would be prima facie inconsistent with the public interest, the petition may be denied without hearing on the basis of a concise statement of the Commission’s reasons for denial. While this court in West Michigan Telecasters, Inc. v. FCC [130 U.S.App.D.C. 39, 396 F.2d 688] remanded a decision of the Commission in order that the FCC might either state with particularity the reasons for its grant of a broadcast application or hold a hearing, we recognized :
Admittedly, the scope of our review is quite narrow; we defer to the expertise and experience of the Commission within its field of specialty and would reverse only where the Commission’s position is arbitrary, capricious or unreasonable . . . [a]nd it is clear that the decision of when hearings are necessary or desirable to clarify issues is one which lies in the first instance with the Commission.

Stone v. FCC, 151 U.S.App.D.C. 145, 151, 466 F.2d 316, 322 (1972) (footnotes omitted). We also reiterate our words in Stone, that a hearing is not required to resolve undisputed facts. Further, if the question is not of facts but of “inferences to be drawn from facts already known and the legal conclusions to be derived from these facts;” no hearing is required. To summarize, the decision of whether or not hearings are necessary or desirable is a matter in which the Commission’s discretion and expertise is paramount. We must examine the Commission’s statement of reasons for denial, and if the Commission’s action was not arbitrary, capricious or unreasonable, we must affirm.

III. APPELLANT’S SPECIFIC OBJECTIONS

A. Concentration of Control

We now turn to the Coalition’s specific allegations of error. The Coalition asserts that the Commission improperly refused to consider allegations of undue concentration of control of mass media in the Columbus area. Appellant points out that the licensees’ principals own not. only the three WBNS stations, but also the Dispatch Publishing Co., publishers of two daily newspapers and a Sunday newspaper in Columbus. The Commission has elected to deal with the problem of concentration of media control via rulemaking. In First Report and Order, Multiple Ownership of Standard, FM and TV Broadcast Stations, 22 F.C.C.2d 306 (1970), the Commission held that ownership of more than one unlimited time broadcast facility in a single market was contrary to the public interest. Rules were promulgated to prohibit common ownership or control of both a television station and a radio station or both an AM and a FM station. In order to prevent potentially disruptive divestitures under the new rules, the Commission “grandfathered” all existing multiple license holders. First Report and Order, supra, 22 F.C.C. 2d at 323. At the same time, the Commission initiated a further rulemaking to examine questions of divestiture by present multiple licensees and whether ownership of broadcast facilities by newspapers should be prohibited. Further Notice of Proposed Rule Making, Multiple Ownership of Standard, FM and TV Broadcast Stations, 22 F.C.C.2d 339 (1970). During the pendency of this rulemaking the Commission has refused to consider questions of concentration of control unless specific abuses are shown. This court has approved the policy. Stone v. FCC, supra at 331; Hale v. FCC, 138 U.S.App.D.C. 125, 129, 425 F.2d 556, 560 (1970).

The Coalition now submits that the Commission has abused its discretion because it has not been diligent in concluding the proposed rulemaking for over 4 years, and thus should no longer be allowed to refuse to consider concentration of control questions. In the alternative, the Coalition submits that they have pled facts sufficient to show specific abuses by licensees, thus entitling them, under Stone and Hale, to a hearing despite the pendency of the proposed rule-making.

While four years might be characterized as an excessive period for a rulemaking, we realize that concentration of control is an extremely complex question. The Coalition does not allege bad faith or purposefully dilatory proceedings by the Commission. If we are to encourage the Commission to proceed by rulemaking for basic policy changes, we must necessarily be patient. We are not, at this time, prepared to say that the Commission has acted improperly by not terminating the rulemaking proceeding and announcing its new rules before now. We, of course, encourage the Commission to act expeditiously in this rulemaking, and reserve the question of at what point a continuing failure to act could be the basis for a different conclusion. It is enough that for now we see no abuse. Further, the harshness of the general refusal to review concentration questions in licensing proceedings is mitigated to an extent by the exception, recognized in both Hale and Stone, that a hearing will be required if specific abuse of multiple ownership can be alleged.

With respect to the Coalition’s allegations of specific anticompetitive practices by the licensees, we think that the Commission was correct in deciding that appellant failed to raise substantial questions of abuse by the licensees’ principals. The Coalition alleged that the Dispatch favored WBNS in its television listings. Further, it was alleged that the Dispatch had caused a competing TV channel’s advertisements to be deleted in retribution for the competing channel’s broadcast of a program critical of the Dispatch. Licensees in rebuttal submitted an affidavit of the executive editor of the Dispatch stating that the change in advertising format was made solely for journalistic reasons, and that his decision to change was made several weeks prior to the program critical of the Dispatch. We believe that the Commission acted properly when it ruled that the Coalition’s allegations, without specific factual support were not sufficient to require a hearing.

The other major issue relating to abuse of media control by licensees concerns WBNS-TV's reaction to a program broadcast over WBNS in 1967 during which the Housing Director of the Urban League purportedly criticized licensees’ principals for attempting to block the formation of a new minority owned bank. The Coalition alleged that, after broadcast, licensees attempted to force the Urban League to pay for the program, although it was normally carried on a sustaining basis. Further, the Coalition alleged that licensees forced the resignation of the Housing Director. Licensees submitted a statement from the Urban League that payment was never demanded. The Executive Director of the Urban League stated positively that the resignation of the Housing Director was not caused by any action on the part of the licensees. We again agree with the Commission that the Coalition failed to submit specific facts which demonstrated an abuse by the licensees’ principals of their joint ownership of the Dispatch and the various broadcast facilities.

B. Programming

Next, the Coalition urges that the Commission erred by not granting a hearing on substantial and material issues concerning whether the grant of the renewal application would be prima facie inconsistent with the public interest. These issues center around WBNS-FM, and concern its programming, past and proposed.

As we have held in prior cases, a renewal applicant must literally “run on his record” in demonstrating that his past programming performance has been responsive to the needs of his broadcast area. Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 341, 359 F.2d 994, 1007 (1966). However, there remains tension between allowing private broadcasting to develop with wide journalistic freedom, on the one hand, and the restriction on this freedom which inheres in the broadcaster’s statutory duty to serve the public interest, on the other. See Columbia Broadcasting System, Inc. v. Democratic Nat’l Committee, 412 U.S. 94, 110, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973); Stone v. FCC, 151 U.S.App.D.C. 145, 157-158, 466 F.2d 316, 328-329 (1972). The licensee is accorded considerable discretion in programming choice, so long as it meets the needs of the community. Columbia Broadcasting System, supra. Petitioners to deny, such as the Coalition, must plead facts with specificity which will show that an existing licensee’s programming has not met the needs of the community. Stone, supra at 329.

As to programming, the Coalition asserts, first, that sufficient evidence was produced to require a hearing on whether' WBNS-FM’s past programming performance varied substantially from its prior representations before the Commission. This can, of course, be grounds for denial of a renewal application. FCC v. WOKO, Inc., 329 U.S. 223, 227, 67 S.Ct. 213, 91 L.Ed. 204 (1946); Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 473 F.2d 16 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973).

The Coalition admits that it did not raise the “promise versus performance” question in those terms before the Commission (Appellant’s Br. at 20). A thorough reading of the record and Commission opinion indicates that the Commission did not consider the issue as being before it. The Commission stated clearly: “In the absence of substantial variations, no questions of promise versus performance will arise. There is no such question in this proceeding.” 38 F.C.C.2d at 743. The Communications Act is clear that “a petition for rehearing shall not be a condition precedent to judicial review . . . except where the party seeking such review . (2) relies on questions of fact or law upon which the Commission has been offered no opportunity to pass.” 47 U.S.C. § 405 (1970). In construing section 405, this court has understood the phrase “opportunity to pass” as meaning that those who would seek judicial review must present the issue to the Commission for its consideration. Hansen v. FCC, 134 U.S.App.D.C. 100, 102, 413 F.2d 374, 376 (1969); accord Neckritz v. FCC, 446 F.2d 501 (9th Cir. 1971). Since the issue of promise versus performance was never presented to the Commission for decision, we are precluded from review.

With regard to WBNS-FM’s past performance, appellant asserts, second, that past programming did not meet the needs and interest of the substantial black population in its broadcast area. Appellant here submits that a hearing should have been held concerning either of two specific criticisms of licensees’ past FM performance. We shall denominate them, for purposes of brevity, as public affairs and black music format.

As to public affairs, the Commission found on record evidence that while WBNS-FM relied primarily upon news and public service announcements to meet community needs, it did rebroadcast public affairs programs which originated on the AM station. These rebroadcasts occurred at different times than the AM broadcasts, thus increasing audience size. The Commission found that 1.67% of the FM station's time was devoted to public affairs programming. The evidence presented by licensees, summarized above, was entirely unrebutted by appellant who simply asserted its subjective characterization of licensees’ performance as unsatisfactory. Programming is a matter left largely in the discretion of the licensee and can never be measured by a simple percentage test. Stone v. FCC, supra at 328. Furthermore, public affairs broadcasts cannot be broken down into “black points of view” versus “other points of view.” See, e.g., Evening Star Broadcasting Co., 27 F.C.C.2d 316, 322 (1971), aff’d sub nom., Stone v. FCC, supra. We therefore find that the Commission was correct in its judgment that the past programming of WBNS-FM was adequate and reasonable, and that appellant’s allegations did not raise factual issues sufficient to warrant a hearing.

In assessing the validity of appellant's asserted error in the area of black music format, the result is the same. Appellant alleges only that it conducted an informal survey which disclosed that some of those surveyed felt more black performers ought to be played on the FM station. It is undisputed that the station’s actual broadcast was not monitored nor was the survey ever submitted to the Commission. Licensees submitted a chart to the Commission which demonstrated that black artists were not excluded from the station’s format. The Commission found, and we agree, that on the evidence submitted appellant did not sustain its allegation of discrimination against black performers. Further, we point out, as did the Commission, that normally ascertainment and programming are evaluated on the basis of community affairs programming, not music format. This is the case because each broadcast area will presumably have several radio stations, each of which will have its own specialized entertainment format. Of necessity, each station’s format will not suit the taste of every individual or group. Hence, problems shared by the community provide the current standard by which to review past performance. Cf. Stone v. FCC, supra at 328 n. 44.

Appellant next asserts that a hearing should have been held on the issue of whether WBNS-FM’s proposed future programming will serve the public interest. WBNS-FM proposed to devote the following minimum amount of time to non-entertainment programming categories: 6.0% news; 1.5% public affairs ; 2.0% all other. Appellant alleges that since the 1967 proposed figures were 7.5% news; 2.5% public affairs and 0% all other, the reduction in proposed news and public affairs programming, without more, constituted a prima facie case for denial of renewal. The Commission disagreed, stating that “the mere citation of what is deemed to be an insufficient amount of programming in these categories, without any evidence to support the assertion that such performance will fail to serve the public interest, is insufficient to raise a substantial and material question of fact as to whether a station will serve the public interest.” 38 F.C.C. 2d at 743.

We believe the Commission was correct. As we said in the context of an assignment application in Hartford Communications Committee v. FCC, 151 U.S.App.D.C. 354, 467 F.2d 408 (1972):

The program schedule, time or percentage of a licensee need not be identical with those of the previous licensee. The test for dimunition of service is not mathematical equality, but the public interest.

467 F.2d at 414 (emphasis added). We find the reasoning applicable here. Because the test is public interest, an assertion that proposed percentages differ from those proposed in the last licensing proceeding does not raise substantial factual questions. This is in line with established Commission policy. See, e.g., Mahoning Valley Broadcasting Corp., 39 F.C.C. 2d 52, 61 (1972). Licensees here represented to the Commission that they intended to program in the future as they did in the previous license period (J.A. at 142) and appellant offers no reason to disbelieve these representations. Clearly, a hearing was not required on this issue.

C. Employment Discrimination

Equal employment opportunity in the broadcast industry has been a source of concern for the Commission and this court in recent years. In the proceeding before the Commission, appellant contended that licensees did not employ black persons in significant numbers when measured against the black population in the broadcast area. Appellant contended further that black employees actually hired were placed in low visibility, nonpolicy making positions which had little future potential. In support of this assertion, appellant mentioned the case of Mr. Roosevelt Carter who, it was alleged, left his job at the TV station because he had no hope of future advancement and because a white man with less experience was hired to fill a position superior to that held by Mr. Carter.

Licensees submitted evidence as to the actual numbers of black employees contending that the figures were in keeping with the black population generally. Further, licensees submitted evidence concerning their minority recruitment and training program which they call the “Broadcast Skills Bank.” Finally, licensees disputed appellant’s account of the facts surrounding Mr. Carter’s departure from their employ.

The Commission initially noted that in order to challenge a licensee’s action with regard to equal employment opportunity “a petitioner must demonstrate with some degree of specificity that the licensee’s employment policies and practices contain barriers to equal employment opportunity or that the licensee has in fact discriminated against applicants and employees because of race, col- or, religion, national origin or sex.” 38 F.C.C. 2d at 745-46. See Time-Life Broadcast, Inc., 33 F.C.C.2d 1050 (1972). The circumstances of this case do not require us to assess the legal correctness of the phrase “some degree of specificity” because we are satisfied that appellant’s allegations did not require the Commission to hold a hearing.

Turning first to the statistical data which appellant contends supports its claim, we note that it is Commission policy that fully proportional employment is not required by the Commission’s rules. See Non Discrimination in Employment Practices of Broadcast Licensees, 23 F.C.C. 2d 430 (1970). The facts as found by the Commission are as follows. The 1970 Census reveals that 11.6% of the Columbus Standard Metropolitan Statistical area is black. 38 F.C.C.2d at 746. The employment figures reveal that at the time the pleadings were filed, the licensees’ three stations employed 15 blacks in other than custodial positions, 8.3% of the total work force. Id. In 1971, the stations employed 18 blacks with a work force of 188, or 9.5%. During 1972, 17 blacks were employed out of a work force of 170, or 10%

The Commission noted that “while an extremely low rate of minority hiring may raise questions” requiring a hearing, 38 F.C.C. 2d at 746, here “the composition of the WBNS stations’ minority staff falls within a range of reasonableness when compared to the percentage of minorities in the stations’ service areas.” Id. The finding appears amply supported in the record and reasonable. In fact, in its brief to this court, appellant agrees, saying “the licensee’s total percentage of black employees is significant in terms of the black population of the licensee’s service area.” Appellant’s Br. at 62.

Appellant, while choosing not to dispute the finding of the Commission as to the statistical evidence, now relies upon two principal arguments to show either a pattern or policy of unequal treatment or an individual instance of discrimination. First, appellant contends that there exists an erratic employment pattern which, without more, would require a hearing. While it is true that the number of black employees declined by one (18 to 17) between 1971 and 1972, the number of employees also declined (188 to 170). Appellant alleges that licensees have no active commitment to minority recruiting, hiring blacks solely to produce statistics which would please the Commission in this renewal proceeding. On this point appellant has offered no proof and apparently did not raise this argument with the Commission.

The evidence produced by the licensees concerning minority hiring, on the other hand, was impressive. The Broadcast Skills Bank is an organization formed by licensees and other Columbus area broadcasters to recruit, train and place workers in the broadcast industry. The head of the Skills Bank stated in an affidavit that the directors of the program were meeting regularly, establishing a training program, and screening 15 to 20 applicants per week. He indicated that the program was directly responsible for “literally doubling the employment of black people” in the Columbus broadcast industry. The Commission concluded, and we agree, that the uneon-tested evidence showed that licensees had an active minority recruiting program which had l’esulted in blacks accounting for 20% of all licensees’ new hires during the past license term. 38 F.C.C.2d at 746-47. Taken as a whole we think that appellant’s argument of an erratic hiring policy is more than met by the strong evidence of a very positive, result producing, minority recruitment program.

Next, appellant points to Mr. Carter’s voluntary termination as a specific instance of employment discrimination. The facts alleged by appellant were that Mr. Carter left his job because a white man was hired to fill a job to which Mr. Carter aspired. To support the claim that Mr. Carter left because of unfair treatment it was contended that Mr. Carter took a lesser paying job outside the broadcast industry. These allegations were supported only by a letter by Mr. Carter addressed “to whom it may concern.” J.A. vol. I at 91. Licensees submitted affidavits that stated that Mr. Carter left for reasons other than race. J.A. vol. I at 232, 236-38, 265-66. Licensees also submitted a letter from Mr. Carter’s subsequent employer stating that his pay in his later job was $9,226.89 per annum, a figure more than $2,000.00 higher than he received at WBNS-TV. J.A. vol. I at 264. Finally, licensees submitted a letter which they received from Mr. Carter when he left their employ which praised the station for being “color blind” and concluded with an apparently sincere thank you. J.A. vol. I at 267.

On the basis of this evidence the Commission could have reasonably found explicitly that there was no racial discrimination whatsoever involved in the Carter incident. If the two unsworn, contradictory letters from Mr. Carter are viewed as raising a disputed question of fact, that question would be only as to Mr. Carter’s state of mind, his perception of discrimination. As we have held, contradictory allegations “which create some possibly unresolved factual issue do not invariably necessitate an ev-identiary hearing.” Broadcast Enterprises, Inc. v. FCC, 129 U.S.App.D.C. 68, 70, 390 F.2d 483, 485 (1968). This is especially true where, as here, the factual issue created, even when considered in the light most favorable to appellant, i.e,, that Mr. Carter felt he had been denied equal opportunity, is amply rebutted by contradictory evidence. See Stone v. FCC, supra, at 323 n. 18 and accompanying text. We are satisfied that the Commission did not commit error in holding that appellant’s allegations did not require an evidentiary hearing on the issue of racial discrimnation in employment, either as concerns policy or as concerns Mr. Carter’s particular situation.

D. Failure to Give a “Hard Look”

Finally, appellant alleges that the Commission failed to give their case a “hard look.” See e.g., Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). We understand this allegation to be nothing more than a recapitulation of the same asserted Commission errors which we have treated at length above. Since we find that appellant did not produce specific facts which would raise material and substantial issues of fact sufficient to make a prima facie showing that license renewal would contravene the public interest, the Commission acted reasonably in granting the license renewals without hearing. The order of the Commission is, therefore,

Affirmed.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.

ORDER

PER CURIAM.

Appellant’s suggestion of in banc consideration having been transmitted to the full Court and no Judge thereof having called for a vote with respect thereto, it is

Ordered by the Court en banc that appellant’s aforesaid suggestion of in banc consideration is denied.

Statement of Chief Judge BAZELON, concurred in by Circuit Judges J. SKELLY WRIGHT, McGOWAN, TAMM and WILKEY.

I would vote to deny rehearing en banc on the basis of Judge Tamm’s concurring opinion in Hale v. FCC, 138 U.S.App.D.C. 125, 425 F.2d 556, 560 (1970). However, like Judge Tamm, I expect the Commission to issue its cross-ownership policy within the year; if it does not, I am presently of the view that this Court must eventually rule on its de facto policy followed in Hale and this case.

      . RadiOhio, Inc., 38 F.C.C.2d 721 (1973).

      . The stations are all owned and licensed by RadiOhio, Inc. and WBNS-TV, Inc., Columbus, Ohio, intervenors below and intervenor-appellees here (hereafter “licensees”).

      . One each for the AM station, the FM station, and the TV station.

      . We do not elaborate on the Coalition’s original Petition to Deny because appellant now alleges error in the denial of a hearing on certain discrete allegations. These will be fully discussed infra.

      . See 38 F.C.C.2d at 723.

      . This may have been a technical violation of the Commission’s pleading rules. See 38 F.C.C.2d at 723. The Commission found that consideration of all the pleadings would prejudice neither side. Id. Neither party contests this ruling on appeal.

      . 38 F.C.C.2d at 749.

      . See Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971).

      . 47 U.S.O. § 309(d), as amended 1960, provides :
      § 309. Application for license.
      (d) Petition to deny application; time; contents ; reply ; findings.
      (1) Any party in interest may file with the Commission a petition to deny any application (whether as originally filed or as amended) to which subsection (b) of this section applies at any time prior to the day of Commission grant thereof without hearing or the day of formal designation thereof for hearing; except that with respect to any classification of applications, the Commission from time to time by rule may specify a shorter period (no less than thirty days following the issuance of public notice by the Commission of the acceptance for filing of such application or of any substantial amendment thereof), which shorter period shall be reasonably related to the time when the applications would normally be reached for processing. The petitioner shall serve a copy of such petition on the applicant. The petition shall contain specific allegations of fact sufficient to show that the i)etitioner is a party in interest and that a grant of the abdication would be prima facie inconsistent with [the public interest]. Such allegations of fact shall, except for those of which official notice may be taken, be supported by affidavit of a person or persons with personal knowledge thereof. The applicant shall be given the opportunity to file a rei)ly in which allegations of fact or denials thereof shall similarly be supported by affidavit.
      (2) If the Commission finds on the basis of the application, the (Headings filed, or other matters which it may officially notice that there are no substantial and material questions of fact and that a grant of the application would be consistent with [the public interest], it shall make the grant, deny the petition, and issue a concise statement of the reasons for denying the petition, which statement shall dispose of all substantial issues raised by the petition. If a substantial and material question of fact is presented or if the Commission for any reason is unable to find that grant of the application would be consistent with subsection (a) of this section, it shall proceed as provided in subsection (e) of this section.

      . Stone v. FCC, 151 U.S.App.D.C. 145, 152, 466 F.2d 316, 323 (1972); accord Marsh v. FCC, 140 U.S.App.D.C. 384, 387-388, 436 F.2d 132, 135-136 (1970).

      . Anti-Defamation League of B’nai B’rith Pac. S.W.R.O. v. FCC, 131 U.S.App.D.C. 146, 148, 403 F.2d 169, 171 (1968), cert. denied, 394 U.S. 930, 89 S.Ct. 1190, 22 L.Ed.2d 459 (1969), cited with approval, Stone v. FCC, supra n. 10 at 323.

      . Stone v. FCC, supra n. 10 at 322, quoting West Michigan Telecasters, Inc. v. FCC, 130 U.S.App.D.C. 39, 41, 396 F.2d 688, 691 (1968); see also Southwestern Operating Co. v. FCC, 122 U.S.App.D.C. 137, 138, 351 F.2d 834, 835 (1965).

      . Commonly called the “one to a market proceedings.”

      . See 22 F.C.C.2d at 307; 47 C.F.R. §§ 73.-35, 73.240 and 73.636 (1971). These rules had later amendments not i>ertinent here. See Multiple Ownership of Standard, FM and TV Broadcast Stations, 28 F.C.C.2d 662 (1971).

      . Stone v. FCC, supra n. 10 at 331; Hale v. FCC, 138 U.S.App.D.C. 125, 129, 425 F.2d 556, 560 (1970).

      . The representations are contained in their 1967 license renewal application.

      . Appellant, while admitting that it did not raise the issue with the Commission (Appellant Br. at 20), contends that the test is not whether an issue was raised by the individual seeking review, but “whether the Commission had in fact had the opportunity to pass upon the particular question of law or fact.” (Id.) The cases cited in the text do not support this proposition. Appellant relies upon a Sixtli Circuit decision, Buckeye Ca-blevision, Inc. v. United States, 438 F.2d 948 (6th Cir. 1971). A close reading of that case, however, discloses that the rationale for not applying section 405 as a bar to review was clearly articulated. “The Commission has had an opportunity to consider the identical issues in this case but which were

        raised by other parties . . . and it was not necessary for Buckeye to raise them again before the Commission.” 438 F.2d at 951. Thus Buckeye Gablevision does not stand for appellant’s proposition that reviewable issues need not be raised.

      . 38 F.C.C.2d at 741.

      . Id.

      . See Nondiscrimination Employment Practices of Broadcast Licensees, 13 F.C.C.2d 766 (1968); Nondiscrimination Employment Practices of Broadcast Licensees, 18 F.C.C. 2d 240 (1969) ; Nondiscrimination Employment Practices of Broadcast Licensees, 23 F.C.C.2d 430 (1970).

      . E.g., Stone v. FCC, supra, n. 10; Billingual Bicultural Coalition of Mass Med. Inc. v. FCC, 160 U.S.App.D.C. 390, 492 F.2d 656 (1974).

      . 38 F.C.C.2d at 746. The sources of these figures were the 1971 and 1972 statistical xxrofile reports (FOO Form 395) submitted annually by all broadcast licensees.

      . Affidavit of Mr. Charles White, J.A. Vol. I at 199-205.


text:
    Joseph J. SAUNDERS et al., Appellants, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY. Timothy D. SMITH et al., Appellants, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.
    Nos. 73-1798, 73-1799.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 1, 1973.
    Filed July 29, 1974.
    As Amended July 29, 1974.
    Joseph J. Saunders and William J. Howard, Washington, D. C., were on the pleadings for appellants.
    Peter J. Ciano, Washington, D. C., was on the pleadings for appellee.
    Before FAHY, Senior Circuit Judge, and ROBINSON and WILKEY, Circuit Judges.
   PER CURIAM:

Appellants have moved for leave to file in these consolidated cases a bill of costs pursuant to Rule 39 of the Federal Rules of Appellate Procedure. The bill of costs lists expenditures for docket fees and the printing of briefs, and appellants’ share of the expense of printing of a joint appendix. Appellee, the Washington Metropolitan Area Transit Authority (WMATA), opposes the motion on two grounds.

First, WMATA contends that appellants waived their right to recover as costs any part of the charge for printing the joint appendix by joining in a stipulation which called for the parties to share that charge. WMATA also calls attention to the fact that Rule 39 imposes a time limit of fourteen days from the entry of judgment on appeal for the filing of a bill of costs, and that appellants failed to meet that deadline. Finding neither premise persuasive, we grant appellants’ motion.

I

A brief summary of relevant developments on these appeals will serve to elucidate our discussion of the problem of costs. Appellants sought in this court an injunction pending resolution of the appeals on the merits. WMATA urged us to consider and rule on the merits on the basis of the papers filed in connection with the motion for injunctive relief, a procedure to which appellants were amenable. We granted an injunction but declined, pending oral argument, to rule on the merits of the appeals. We left to the parties the decision as to whether additional briefs or record material would be submitted.

Appellants adopted, as their opening bi'ief, their memorandum in support of the application for the injunction. WMATA, however, was inclined toward a different course. It initiated correspondence with counsel for appellants and proposed a briefing schedule to accommodate the contingency that it would decide to file a new brief. Later, new counsel entering the case for WMATA contacted appellants with respect to the filing of a joint appendix. By oral agreement, subsequently confirmed in a written stipulation, the parties decided that the arrangements for printing the appendix would be made by WMATA, and that appellants would contribute their proportionate part of the printing expense. In due course, the appeals were argued and decided; and by a judgment accompanied by a memorandum, we sustained appellants and remanded the cases for further proceedings.

II

WMATA contends that the stipulation respecting a sharing of the expense of printing the joint appendix permanently disabled appellants from claiming any part of that expense as a taxable cost. Appellants, on the other hand, argue that the stipulation merely recognized their initial responsibility to at least share in the payment of the printer’s bill when presented, and did not affect, or even purport to address, any right to costs in that regard which would accrue in the event that they prevailed on the appeal. We conclude that the stipulation does not bar appellants from pursuing a recovery of costs to which they would normally have become entitled in that connection.

Rule 39(a) specifies that “if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered” by the court. Our disposition of appellants’ appeals, though in form a remand for further proceedings, was a reversal in every sense of the word. Consequently, appellants, as the prevailing parties, became entitled to an award of costs as a matter of course, save only to the extent that the court might direct otherwise. The stipulation aside, we perceive no basis upon which a discretion could be soundly exercised to deny appellants any item of costs normally allowable. We turn, then, to the stipulation to determine whether it makes for a difference in these cases.

It will be retailed that the stipulation followed on the heels of WMATA’s decision to submit a brief additional to its filed memorandum in opposition to an injunction pending appeal. The stipulation, prompted by WMATA’s desire for an accompanying joint appendix, simply provided that the parties “will pay their proportionate share of the printer’s bill for printing the joint appendix based upon the number of pages designated by each.” This provision, WMATA states, was an irrevocable commitment by appellants to absorb their share irrespective of the outcome of the appeals. In the context in which the stipulation came about, we cannot accept that inter-' pretation.

By the stipulation, the parties devised a plan and a timetable by which additional briefs and a printed joint appendix would be presented to the court. Since both sides designated materials for inclusion in the appendix, the immediate concern was the printer’s bill therefor. The stipulated arrangement was a sharing of the bill in proportion to the number of pages respectively designated, and through that arrangement it was contemplated that the printer would be promptly paid. That the parties agreed to that much is very clear, but we cannot say that appellants agreed to more.

Beyond the exigencies of paying the printer was the question of where the financial burden of the joint appendix would finally come to rest. It is not at all unusual for litigants to share a printing expense in the first instance, with an award of costs on that account to abide the judgment. Indeed, the Appellate Rules recognize and utilize the practice. And while the stipulation certainly bound the parties to an initial sharing, we see nothing in it which we could accept as applicable to the matter of ultimate financial responsibility.

Absent a contrary direction by this court, appellants were entitled, we have said, to their costs as a matter of course. Within limits defined by public policy, the parties were free to contract in regard to taxable costs. But where, as here, it is asserted that the parties have altered the course of cost-allocation which Rule 39(a) prescribes, the agreement relied on should have that effect plainly and convincingly. Parties who seek an ultimate adjustment of taxable costs different from the scheme of Rule 39(a) should formulate their agreements explicitly; close attention to the matter will avoid the ambiguity, and the resulting controversy which we have encountered in this case. In sum, we cannot, on the basis of a stipulation of dubious import, deprive a litigant of an entitlement which Rule 39(a) confers upon him. Only when the litigant has unequivocally waived the entitlement are we justified in excluding it from his bill of costs. We cannot say that there was such a waiver here.

Ill

We are likewise unable to accept WMATA’s contention that a recovery of costs in these cases is foreclosed by appellants’ failure to file their bill therefor within the 14-day period specified by Rule 39(c). To be sure, claims for costs should be submitted promptly after rendition of judgment on appeal; the 14-day limit subserves that policy, and should be scrupulously observed. Yet it is evident that the circumstances of particular situations may satisfactorily ex-plain tardiness, and may call for an allowance of costs nonetheless. The court in its discretion may accommodate such a situation, for it is empowered for good cause shown to enlarge the period within which the bill of costs may be filed. We think it clear that the period should be enlarged in these cases.

As we have stated, the parties agreed to divide proportionately the printer’s charge for producing the joint appendix. Appellants represent that they stood ready to pay any bill for their share that WMATA might have tendered before we ruled on the appeals and, as the winning parties, would have included the payment in their bill of costs. But the printer’s invoice covering the joint appendix was sent to WMATA and, for reasons not disclosed to us, WMATA did not submit a bill to appellants for more than five months after our decision on appeal was announced.

In these circumstances, we think WMATA is hardly in position to invoke the 14-day time limit. The largest single item in appellant’s bill of costs is their portion of the charge for printing the joint appendix. Appellants could not prepare a complete bill of costs without knowing just what their part of the printing expense was. Appellants could reasonably assume, from the fact that WMATA long saw fit to retain that information, that WMATA was unconcerned with time considerations. In a word, we do not consider appellants imprudent in awaiting a copy of the printer's invoice before filing their bill of costs. To have done otherwise would have resulted in a piecemeal presentation of costs, and thereby imposed an unnecessary burden on the parties and the court.

Motion granted.

      . Eed.R.App.P. 39 in relevant part provides:
      (a) To Whom Allowed. Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered ; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; if a judgment is affirmed or reversed in part, or vacated, costs shall be allowed only as ordered by the court. . . .
      (c) Costs of Briefs, Appendices, and Copies of Records. The cost of printing or otherwise producing necessary copies of briefs, appendices, or copies of records authorized by Rule 30(f) shall be taxable in the court of appeals at rates not higher than those generally charged for such work in the area where the clerk’s office is located. A party who desires such cost to be taxed shall state them in an itemized and verified bill of costs which he shall file with the clerk, with proof of service, within 14 days after the entry of judgment.
      (d) Clerk to Insert Costs in Mandate. The Clerk shall prepare and certify an itemized statement of costs taxed in the court of appeals for insertion in the mandate. If the mandate has been issued before final determination of costs, the statement, or any amendment thereof, may be added to the mandate at any time upon request of the clerk of the court of appeals. . . .

      . Saunders v. Washington Metropolitan Area Transit Authority, No. 73-1798 (D.C.Cir. Aug. 10, 1973).

      . Id.

      . With minor changes, the memorandum was printed as appellants’ opening brief. Appellants also filed a printed reply brief.

      . Ultimately it did file a new brief, in printed form.

      . See Part II, infra,

      . This was done because WMATA designated the larger portion of the joint appendix, and some materials were to be designated as the brief was being prepared. See note 14, infra.

      . WMATA did not demand appellants’ contribution until after judgment on appeal was rendered, and appellants, who by then had prevailed, never made the contribution. See Part III, infra. Allowance of this item as a taxable cost means simply that appellants will use it to offset WMATA’s demand.

      . Saunders v. Washington Metropolitan Area Transit Authority, 159 U.S.App.D.C. 55, 486 F.2d 1315 (1973).

      . See note 14, infra.

      . Seo note 1, supra.

      . See Saunders v. Washington Metropolitan Area Transit Authority, supra note 9.

      . Statutory authority for taxable costs allocated by Fed.R.App.P. 39 is derived from 28 U.S.C. § 1920 (1970). See Advisory Committee Note to Fed.R.App.P. 39(a). The statement in text is abundantly supported by decisions under § 1920. See, e. g., Shima v. Brown, 78 U.S.App.D.C. 268, 140 F.2d 337 (1943); Chemical Bank & Trust Co. v. Prudence-Bonds Corp., 207 F.2d 67, 77-78 (2d Cir. 1953); McKnight v. Akins, 192 F.2d 674, 676 (6th Cir. 1951) ; Chicago Sugar Co. v. American Sugar Ref. Co., 176 F.2d 1, 11 (7th Cir. 1949).

      . “Unless the parties otherwise agree, the cost of producing the appendix shall initially be paid by the appellant, hut if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for the determination of the issues presented he may so advise the appellee and the appel-lee shall advance the cost of including such parts. The cost of producing the appendix shall be taxed as costs in the case, but if either party shall cause matters to be included in the appendix unnecessarily the court may impose the cost of producing such parts on the party.” Fed.R.App.P. 30(b).

      . See note 13, supra, and accompanying text.

      . See note 1, supra.

      . Fed.R.App.P. 26(b).

      . See note 8, supra.