author: ROBB, Circuit Judge: PER CURIAM. •

text:
    Alan F. NECKRITZ and Lawrence B. Ordower, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Westinghouse Broadcasting Company, Inc., et al., Intervenors.
    No. 71-1392.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 23, 1973.
    Decided June 28, 1974.
    Rehearing En Banc Denied Oct. 2,1974.
    Bazelon, Chief Judge, filed statement as to why he voted to deny rehearing en banc.

      Alan F. Neckritz, pro se, Lawrence B. Ordower and Lewis J. Paper for petitioners.
    John W. Pettit, Gen. Counsel, F. C. C., with whom Joseph A. Marino, Associate Gen. Counsel, and R. Michael Senkowski, Counsel, F. C. C., were on the brief, for respondent, F. C. C.
    J. Roger Wollenberg, Washington, D. C., with whom Timothy B. Dyk, David R. Anderson and Barry 0. Chase, Washington, D. C., were on the brief for in-tervenor Columbia Broadcasting System, Inc., also argued on behalf of interve-nors National Broadcasting. Co., Inc., and American Broadcasting Co., Inc. Daniel Marcus, Washington, D. C., also entered an appearance for intervenor, Columbia Broadcasting System, Inc.
    Lee Loevinger, Washington, D. C., with whom Raymond E. Vickery, Jr., Washington, D. C., was on the brief, for intervenor, Standard Oil Co. of Cal. Alfred F. Dougherty, Washington, D. C., also entered an appearance for interven- or, Standard Oil Co. of Cal.
    Thomas E. Kauper-,‘ Asst. Atty. Gen., and Bruce B. Wilson, Deputy Asst. Atty. Gen., Dept, of Justice, were on the brief for respondent, United States. Howard E. Shapiro, Atty., Dept, of Justice, also entered an appearance for United States.
    John D. Lane and J. Carter McKaig, Washington, D. C., were on the brief for intervenor Westinghouse Broadcasting Company, Inc. Ramsey L. Woodworth, Washington, D. C., also entered an appearance for intervenor Westinghouse Broadcasting Co., Inc.
    Howard Monderer, Washington, D. C., was on the brief for intervenor National Broadcasting Co., Inc. Mathias E. Mone and Donald J. Mulvihill, Washington, D. C., also entered appearances for interve-nor, National Broadcasting Co., Inc.
    James A. McKenna, Jr., and Carl R. Ramey, Washington, D. C., were on the brief for intervenor American Broadcasting Co., Inc.
    Thomas R. Asher and Tracy A. Wes-ten, Washington, D. C., filed a brief on behalf of Council on Economic Priorities, et al., as amici curiae.
    Geoffrey Cowan, Washington, D. C., and James W. Moorman, San Francisco, Cal., filed a brief on behalf of Friends of the Earth, et al., as amici curiae.
    John E. Bryson filed a brief on behalf of Natural Resources Defense Council, et al., as amici curiae.
    Robert Chartoff, Berkeley, Cal., filed a brief on behalf of Committee for Open Media as amicus curiae.
    Before TAMM and ROBB, Circuit Judges, and DAVIES, Senior United States District Judge for the District of North Dakota.

       Sitting by designation pursuant to 28 U.S.C. § 292(d).

   ROBB, Circuit Judge:

This is a petition to review an order of the Federal Communications Commission which rejected a complaint filed by the petitioners against certain broadcasting licensees. The complaint alleged that the broadcasters had failed to fulfill their Fairness Doctrine obligations, growing out of advertisements for a particular brand of gasoline. The Commission rejected the complaint on the ground that the broadcasters had acted reasonably and in good faith in concluding that the advertisements did not raise a controversial issue of public importance. For the reasons hereinafter stated we affirm the Commission.

I.

During 1970, five California television stations (KGO-TV, KPIX, KRON-TV, KNXT, and KNBC) carried advertisements for Standard Oil of California’s Chevron gasoline with the new F-310 additive. These televised advertisements showed: (1) a large balloon attached to the exhaust pipe of a late model Chevrolet and turning black with exhaust fumes; (2) a car engulfed in a bag of black smoke; and (3) exhaust fumes ignited with a blow torch to indicate unburned gasoline going out the exhaust • — conditions which the advertisements maintained would be cured by “just six tankfuls of Chevron with F-310.” The following script explained the pictures:

. I’m Scott Carpenter. We’re attaching a clear balloon to this car to show you one of the most meaningful gasoline achievements in history. The balloon is filling with dirty exhaust emissions that go into the air and waste mileage.
Now Standard Oil of California has accomplished the development of a remarkable gasoline additive, Formula F-310, that reduces exhaust emissions from dirty engines. The same car, after just six tankfuls of Chevron with F-310; no dirty smoke, cleaner air. A major breakthrough to help solve one of today’s critical problems. And since dirty exhaust is wasted gasoline, F-310 keeps good mileage from going up in smoke. Cleaner air, better mileage — Chevron with F-310 turns dirty smoke into good, clean mileage. There isn’t a car on the road that shouldn’t be using it.

In August of 1970, the petitioners, Neckritz and Ordower, complained to each of the five stations that the Chevron advertisements were misleading and deceptive, since the F-310 additive failed to live up to the advertising claims. The complaint asserted:

These ads seem designed to induce public complacency, and suggest that Cal-Standard is doing more to halt the pollution of our environment than the other oil companies.
Chevron’s “black bag” commercials have been challenged as rigged. The California Air Resources Board in a recent study found no significant change in exhaust emissions when it fuelled its cars with F-310.
The California Air Resources Board has forwarded its study to the Federal Trade Commission . . . for further investigation and disciplinary action.
Cal-Standard, . . . used advertising which involved material deception as to the characteristics and performance of its products. “We used a very low grade. gasoline to dirty up the engine,” admits Eneas W. Kane, President of Chevron Research Co., the California plant that developed F-310.
Standard officials conceded in testimony before the Hawaii State Senate Consumer Protection Committee that their advertising campaign is misleading because it neglects to point out that F-310 does nothing to reduce dangerous invisible exhaust emissions including airborne lead, nitrogen oxide and aldehydes. [Emphasis in original.]

Neckritz and Ordower concluded that:

Cal-Standard by its ads raises one side of a controversial issue of public importance, and leaves tl|e public with the impression that by the development of F-310 it is doing everything that is possible and necessary to remedy the car exhaust pollution problem. Cal-Standard’s ads and claims for F-310 obfiscate [sic] the true hazards of this product, and hinder efforts aimed at educating the public about the dangers of auto pollution . . . [so] your network is obliged to present the other side of this issue.
Cal-Standard by its own ads raised the ecology issue, and made ecological claims. Ads replying to Standard’s ecological claims would be in the “public interest” and would not undermine the present broadcast system based on product commercials.

The complaint did not otherwise specify or define the “controversial issue of public importance” or the “ecology issue” which the complainants professed to find in the advertisements. Nevertheless it was claimed that the “issues raised by the Chevron F-310 commercials fall within the scope of” Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d 1082 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969), so that the presentation of “the other side” was required.

Responding to the complaints four licensees took the position that the commercials did not argue a thesis which required the presentation of contrasting viewpoints under the Fairness Doctrine. Thus, KRON-TV said the commercials did not claim that F-310 did “everything possible and necessary to remedy the exhaust pollution problem” and did “not say that F-310 solves the problem but only that it is a significant step ‘to help solve’ this problem.” The commercials, said KRON-TV, did not deny the existence of air pollution by exhaust emissions or claim that F-310 did more than reduce such emissions; the only issue therefore was as to the truth or falsity of the claim that the product F-310 was effective.

Station KPIX concluded “that the disagreement concerning the ecological advantages or shortcomings of the ‘F-310’ additives, is a facet of the issue of air and environmental pollution — a ‘controversial issue of public importance’ to which KPIX has frequently addressed itself.” The station referred to a number of broadcasts by “leaders in the anti-pollution field” which, in the judgment of the station, “fulfilled its obligation under the Fairness Doctrine to inform the public on all significant aspects of the controversy over air pollution— including the Chevron ‘F-310’ advertisement.” Also, the station noted that it had required the addition of these clarifying statements to the commercials:

Very dirty engine purposely used to provide severe test.
Only dirty engines emit black smoke.
Degree of improvement in your car depends on conditions of engine.
Not all cars emit excessive exhaust.

These qualifying statements were subsequently incorporated into the script for all stations.

Station KNXT also replied by noting that the Chevron F-310 advertisements were subject to a Federal Trade Commission investigation on charges of false and misleading advertising, and that a proposed order issued by the FTC would require corrective advertising.

Finally, all five licensees recognized that automobile pollution was a controversial issue of public importance in California, but they concluded that questions as to the efficacy of the Chevron F-310 product did not present such an issue. Each of the licensees maintained that its programming had devoted significant coverage to the many facets of the automobile pollution problem. The petitioners did not refute the licensees’ contentions that the public had been and was being fully informed on the problem. In addition, Stations KRON, KGO-TV, KNXT, and KPIX stated that they had specifically covered the dispute about the efficacy of the F-310 product in their news broadcasts and other programs.

The Commission’s Original Ruling

After reviewing the pleadings, the Commission was unable to find any basis for reversing the licensees’ determinations that the Chevron F-310 advertisements did not discuss a controversial issue of public importance, 29 F.C.C.2d 807. The Commission observed;

The Chevron F-310 announcements do not argue a position on a controversial issue of public importance, but rather advance a claim for product efficacy. It is true that this claim relates to a matter of public concern, but making such a claim for a product is not the same thing as arguing a position on a controversial issue of public importance. That the claim is alleged to be untrue or partially deceptive does not change its nature. The Chevron advertisements do not claim there is no danger in air pollution or that automobiles do not contribute to pollution but assert, instead, that use of the sponsor’s product helps to solve the problem. It would ill suit the purposes of the fairness doctrine, designed to illumine significant controversial issues, to apply it to claims of a product’s efficacy or social utility. The merits of any one gasoline, weight reducer, breakfast cereal or headache remedy —to name but a few examples . do not rise to the level of a significant public issue.

Accordingly the Commission could find nothing unreasonable in the licensees’ judgment that the advertisements did not raise Fairness Doctrine obligations.

The petitioners’ reliance on the Ban-zhaf ease in requesting counter-advertising time was rejected because “we made clear that the unique situation there involved would not be extended to other product advertising.” This was because “cigarette smoking was unique in regard to the hazard which results from normal use and also in regard to the simple issue presented — whether or not to smoke.” Furthermore, the Commission noted that in a subsequent ruling it had refused to extend its cigarette ruling to advertisements urging the purchase of large displacement automobiles and high-test gasoline. Friends of the Earth, 24 F.C.C.2d 743, 748-49 (1970). Finally, the Commission announced its plan “to initiate a proceeding of broad scope to consider every facet of our fairness doctrine and related public interest policies, including the vexing problem of access that has been on the periphery of many of our decisions in these areas.”

Pleadings Before the Commission on Remand

Petitioners sought review in this court following the Commission’s ruling. While the case was pending, we reversed the Commission in Friends of the Earth v. FCC, 146 U.S.App.D.C. 88, 449 F.2d 1164 (1971). Since the licensees and the Commission had both relied in part on the ruling reversed by the court, the Commission requested that the record be remanded for reconsideration in light of our decision in Friendo the Earth. When the court granted the motion for remand, the Commission invited the parties to comment on the effect, if any, of Friends of the Earth.

After the remand Standard Oil of California filed a Motion to Dismiss or, In the Alternative, To Make More Definite and Certain against petitioners’ complaint. Standard Oil maintained that “Complainants have never stated with any specificity or precision the controversial issue which they allege raises a Fairness Doctrine question.” Neckritz and Ordower responded by stating only that the issue had been clarified during the course of the proceedings. In their later pleadings, however, they insisted that the Fairness Doctrine issue was “a narrow one: do product commercials which claim that the use of a particular gasoline contributes to the solution of the air pollution problem trigger the fairness doctrine?”

Neckritz and Ordower argued:

The facts underlying the court’s decision in Friends of the Earth require that the Commission apply the fairness doctrine to the Chevron ads. Both that case and the instant controversy involve the same issue: does the use of a particular product pose health hazards which the ads failed to acknowledge.

They claimed also that the Chevron F-310 advertisements directly raised and discussed the controversial issue of air pollution:

Gasoline emissions from automobiles are a prime source of air pollution, which is a problem of public importance in California. Chevron F-310 commercials practically shout that they are dealing with this controversial issue of public importance.

However, petitioners insisted that they were not contending that the Fairness Doctrine applied to all gasoline commercials. Instead, they asserted only that “the fairness doctrine applies when an advertisement explicitly claims that a product helps solve a' pressing community problem or when the advertisement ignores the adverse consequences which the use of that product has for a pressing community problem.” They repeated their demand for “counter advertising.”

The Commission Ruling on Remand

In its ruling, 37 F.C.C.2d 528, the Commission first noted that “[o]rigi-nally, our application of the Fairness Doctrine to product advertising was intended to be limited to a single product” —cigarettes. Cigarettes were thought to involve a unique problem “since smoking them is a habit ‘which can fade away’ without impact upon other aspects of life, and which official voices have urged the public to avoid or abandon.” However, said the Commission, in the Friends of the Earth case the court could not “plausibly differentiate” cigarette advertisements from commercials promoting large-engine cars and high-test gasoline. “The Court found ‘undisputed evidence’ that these products, like cigarettes, significantly enlarged and aggravated existing public health hazards.” Furthermore, public officials had encouraged the public not to use such products.

Since there was “no evidence which would indicate that the Chevron additive F-310 in any way enlarges or aggravates hazards to the public health,” the Commission found the present case distinguishable from Friends of the Earth:

Chevron with F-310 is not alleged to be more dangerous than any competing product. Petitioners do not urge the public to abandon the use of gasoline, or even to avoid using Chevron with F-310. It is clear, therefore, that the broadcast of contrasting views in the present case would not provide a health service similar to exhortations to stop smoking, or to drive cars with reduced horsepower and use gasolines with a low-octane rating.

In fact, the Commission pointed out, Chevron had “amassed considerable evidence to support the proposition that its product will . . . contribute to a reduction of the air pollution problem.” Under such circumstances the Commission could not say with certainty that broadcast of a contrasting view would provide a valuable public health service.

Aside from the public health factors underlying the Friends of the Earth decision, the Commission remained convinced that traditional Fairness Doctrine principles did not require the broadcasting of contrasting views with respect to Chevron F-310. The Commission could find nothing unreasonable in the licensees’ conclusions that these advertisements “did not argue a position on a controversial issue of public importance, but merely advanced a claim for product efficacy.” As the Commission emphasized, the critical consideration was that:

. the licensee, in applying the fairness doctrine, is called upon to make reasonable judgments in good faith on the facts of each situation — ■ as to whether a controversial issue of public importance is involved . . . ., In passing on any complaint in this area, the Commission’s role is not to substitute its judgment for that of the licensee . . . but rather to determine whether the licensee can be said to have acted reasonably and in good faith.

Here the Commission was unable to find that the licensees had acted unreasonably or in bad faith in determining that the Chevron F-310 ads did not constitute a discussion of a controversial issue of public importance.

With respect to the demand for counter advertising the Commission pointed to its review of the Fairness Doctrine, then going on:

This study includes a detailed analysis of the merits of various “counter advertising” proposals, including suggestions similar to those advanced by the Petitioners in this case. At the end of this study, we hope to be in a position to balance more intelligently likely gains to public enlightenment against the threats these gains may present to the economic base and sound administration of the commercial broadcasting system. In the meantime, we are convinced that our present policy is the one best designed to further “ . . . the larger and more effective use of radio in the public interest.” [Quoting 47 U.S.C. § 303(g).]

II.

As we have said, the petitioners in the administrative proceedings did not clearly articulate the controversial issue of public importance that they wished to discuss. In their brief in this court they have undertaken to remedy this deficiency. Thus they say:

. the ads totally ignore the evidence that use of most gasolines, Chevron F-310 included, actually contributes to the air pollution problem. Accordingly, the Commission’s decision that ads for Chevron F-310 do not raise a controversial issue of pub-lie importance will leave the California public uninformed about the other side of this critical debate. (Br. 29.) The ads ignore totally the fact that Chevron F-310 is a leaded gasoline, the very kind that was subject to the fairness doctrine complaint in Friends of the Earth; and the ads also ignore totally the fact that, even if the gasoline does have some benefit in reducing automotive pollutants, use of this gasoline will still contribute to the air pollution problem. (Br. 37.) [Emphasis in original.]
To begin with, the same undisputed evidence referred to in Friends of the Earth v. F.C.C. applies to Chevron F-310 gasoline since this gasoline, like the gasoline referred to in Friends of the Earth v. F.C.C. is a leaded gasoline. (Br. 40.)
First, the issue explicitly raised by the ads is whether use of Chevron F-310, or any leaded gasoline which aggravates the air pollution problem, can contribute significantly to the solution of California’s air pollution problem. (Br. 46.)
Failing to apply the fairness doctrine to the Chevron ads, the F.C.C. is depriving the California public of information relating to an important public question: whether use of Chevron F-310, or any leaded gasoline, can contribute significantly to the solution of California’s air pollution problem. (Br. 52.)

Briefly stated, the petitioners’ argument in their brief is that advertisements for a leaded gasoline raise a controversial issue of public importance. This is a theme sounded for the first time on appeal, for in the administrative proceedings the petitioners did not base their complaint upon the presence of lead in Chevron gasoline with F-310. Consideration of this new argument is therefore precluded by section 405 of the Communications Act, 47 U.S.C. § 405. Neckritz v. FCC, 446 F.2d 501 (9th Cir. 1971).

Although the petitioners’ attempts to discover or create a controversial issue of public importance either come too late or fall short of clarity we shall discuss their contentions in the light of the principles of the Fairness Doctrine and the decisions of this court in the Ban-zhaf and Friends of the Earth cases.

The principles of the Fairness Doctrine have been expounded by the Commission and courts in many cases and we heed not review them here. See Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Democratic National Committee v. FCC, 148 U.S.App.D.C. 383, 460 F.2d 891, cert. denied, 409 U.S. 843, 93 S.Ct. 42, 34 L.Ed.2d 82 (1972); Healey v. FCC, 148 U.S.App.D.C. 409, 460 F.2d 917 (1972); Green v. FCC, 144 U.S.App.D.C. 353, 447 F.2d 323 (1971). It is enough to say that under the doctrine wide discretion is available to a licensee; to establish a violation of the doctrine a complainant must demonstrate that the licensees’ exercise of judgment was unreasonable, arbitrary or in bad faith.

We think the record supports the Commission’s conclusion that the licensees exercised a reasonable judgment in rejecting the petitioners’ complaint. As originally formulated the complaint failed to specify the ecological issue or issues which the petitioners found in the gasoline advertisements. In this situation the licensees could reasonably believe that the issue the petitioners wished to discuss was whether Chevron F-310 did what the advertisements claimed it would do. From this premise it was not unreasonable to conclude that the commercials did not raise a controversial issue of public importance, but rather made claims of a factual nature which the petitioners contended were false. In other words, the narrow question of the efficacy of F-310 was not a controversial issue of public importance.

The charge that the advertised claims for F-310 were false was not a matter properly to be tried on television by advertisement and counter-advertisement. Rather, as the licensees observed, it was a proper subject for a Federal Trade Commission investigation. That investigation did take place. In the Matter of Standard Oil Co. of Calif., et al., Federal Trade Commission, Docket No. 8827. On April 25, 1973 the Administrative Law Judge in that proceeding found that the evidence sustained the advertising claims and dismissed the charges that the advertising was false. We note further that the petitioners in their brief state that they “are not asking this court to review the FCC decision to deny relief with respect to the deceptive advertising issue.” (Br. 27, n.1.)

Even if the petitioners’ argument based upon the presence of lead in Chevron gasoline with F-310 were properly before us it would be unpersuasive. In the first place, the record discloses without dispute that Chevron marketed unleaded gasoline with F-310 before the petitioners’ complaint was filed. Moreover the Chevron advertisements did not proclaim the virtues of leaded gasoline.

This case is not controlled by Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d 1082 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969), and Friends of the Earth v. FCC, 146 U.S. App.D.C. 88, 449 F.2d 1164 (1971). In the Banzhaf case advertisements represented that smoking was socially desirable, although evidence indicated that it was dangerous to health. In the Friends of the Earth case the burden of the advertising was that high-test gasolines and large engines were “clean, socially responsible and automotively necessary”, although such engines and gasolines contributed significantly to air pollution. In each case there was an opposing point of view: that smokers should stop smoking or that consumers should purchase low-test gasolines and small engines. In the case at bar however the commercials made no attempt to glorify conduct or products which endangered public health or contributed to pollution. As we noted in the Friends of the Earth decision the F-310 commercials “far from suggesting that automobile emissions do not contribute significantly to the dangers of air pollution, urged that the gasoline being advertised was designed to reduce those dangers.” 146 U.S.App.D.C. at 93, 449 F.2d at 1169.

In summary, we agree with the Commission’s analysis and disposition of the petitioners’ complaint.

Affirmed.

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

ORDER

PER CURIAM. •

On consideration of petitioners’ suggestion for rehearing en banc, it is

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

Statement of Chief Judge BAZELON as to why he voted to deny rehearing en banc.

Upon consideration of petitioners’ suggestion for rehearing en banc, and the respondent’s response thereto ordered by the Court, I am convinced that the case does not merit rehearing en banc for two related reasons, First, and most important, the response reveals that since the decision by the panel in this case the FCC has issued a new statement of policy concerning the Fairness Doctrine and advertising, 39 Fed. Reg. 26372 (July 12, 1974), and that review of such statement is currently being sought in this Court in No. 74-1700. I believe that review is the proper vehicle to consider in the first instance the serious issues raised in petitioners’ suggestion for rehearing en banc. Second, the advertising messages which are the subject of this litigation have been terminated. Brief for the FCC at 12 n.4, Neckritz v. FCC, No. 71-1392 (D.C. Cir. June 28, 1974). The extraordinary process of rehearing en banc is thus not appropriate in this case.

      . See Fairness Doctrine Inquiry in Docket 19260, 30 F.C.C.2d 26 (1971). The matter is still pending before the Commission.

      . Apparently because KRON had not intervened before this court it was not served with a copy of the Commission’s letter of inquiry.

      . Petitioners also urged that the importance of the controversy over Chevron F-310 was further suggested “by the fact that the licensees and Standard Oil of California have devoted considerable attention to petitioners’ comxdaint. The licensees have taken note of the controversy on news programs, including the prestigious and widely viewed ‘CBS Evening News with Walter Cronkite.’ ” In addition, “Standard Oil discontinued the contested ads and now airs ads which do not explicitly exploit community concern about the problem of air pollution.” [Emphasis in original.] The disputed commercials went off the air in the fall of 1971.

      . The matter is pending on appeal before the Federal Trade Commission.


source: Caselaw Access Project

author: LEVENTHAL, Circuit Judge:

license: Public Domain

text:
    Vernon Walker HUFFMAN, Appellant, v. UNITED STATES of America, Appellee. Dennis Eugene PRYBA, Appellant, v. UNITED STATES of America, Appellee.
    Nos. 23-781 and 23-782.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 8, 1971.
    Decided June 28, 1974.

      Before BAZELON, Chief Judge, and LEYENTHAL and MacKINNON, Circuit Judges.
   LEVENTHAL, Circuit Judge:

This case has been the subject of two previous opinions by this court. The original affirmance was followed by a supplemental opinion granting a petition for rehearing to provide an opportunity for reconsideration in light of pending Supreme Court decisions in a group of obscenity cases. Those decisions have issued, and supplementary legal memo-randa have been filed by the parties. We now reverse and remand.

I.

Appellants were convicted on several counts of violating the local indecent publications statute, 22 D.C.Code § 2001 (1970), by possessing obscene material, with the intent to disseminate it. The material consisted of several “magazines” made up of collections of photographs of two nude or near-nude females shown undressing, caressing, fondling and embracing each other. The photographs were accompanied by brief written material, including a trilingual statement purportedly addressed to “serious students of art.”

Having ascertained that the jury was properly instructed under the standards of Roth v. United States and Memoirs v. Massachusetts, and having made our own independent determination that these determinations were not contrary to the First Amendment, we upheld the convictions of both appellants.

We voluntarily stayed the issuance of our mandate to await guidance on the “intractable obscenity problem.” We now review our decision in light of the principles enunciated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), and Roaden v. Kentucky, 413 U.S. 496, 93 S. Ct. 2796, 37 L.Ed.2d 757 (1973).

II.

The Supreme Court decisions, particularly Heller, fully support our prior ruling upholding the use of ex parte hearings to grant warrants authorizing seizure of limited amounts of alleged obscene materials.

As to the legal definition of obscenity and its application, we face a different situation. Our earlier opinion explicitly adopted the standard of Roth and Memoirs. At that time we rejected appellants’ contention that to sustain a conviction under an obscenity statute, the material must be found to be either “hard-core” pornography or be sold in an objectionable manner, i. e., sold to juveniles or pandered in an offensive manner.

The Supreme Court has recently undertaken “to formulate standards more. concrete than those in the past.” Miller v. California, supra, 413 U.S. at 20, 93 S.Ct. at 2612. The new guidelines differ from the Roth-Memoirs test in several respects. First, the Roth test is retained insofar as the trier of fact must determine whether “ ‘the average person, applying contemporary community standards, would find that work, taken as a whole, appeals to the prurient interest (citations omitted).” Miller v. California, supra, at 24, 93 S.Ct. at 2615. Second, the trier of fact is to determine “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.” Id. (Emphasis added.) Third, the trier of fact must determine “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Id. Although these standards generally resemble the earlier test, the new guidelines also represent a break from Roth and Memoirs.

The Miller opinion confirmed the state’s ability to obtain obscenity prosecution, even in the absence of pandering or orientation to juveniles, but it confined that ability when, as, and if, limited to instances of “hard-core” sexual conduct. The Court said:

Under the holdings announced today, no one will be spbject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core’’ sexual conduct specifically defined by the regulating state law, as written or construed.

Miller v. California, supra, at 27, 93 S.Ct. at 2616. (Emphasis added.)

To give concrete meaning to its new definition of obscenity the Court gave examples of areas of permissible regulation:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Miller v. California, supra, at p. 25, 93 S.Ct. at 2615. While these examples are not an “exhaustive catalog” of what is patently offensive, they “fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination” and other material must be “sufficiently similar to such material to justify similar treatment.” Jenkins v. Georgia, 418 U.S. 153, at 160-161, 94 S.Ct. 2750, at 2755, 41 L.Ed.2d 640 (1974).

This aspect of Miller confined the constitutional reach of obscenity statutes, although in other respects Miller expanded the state’s regulatory area.

The constitutional requirement that the state obscenity laws “specifically define” the “hard core sexual conduct” that may not be depicted does not necessitate specificity in the text of the statute if it is provided by authoritative judicial interpretation. In the various eases remanded by the Supreme Court to the state courts for further consideration in the light of Miller there has been a divergence of approach. Two decisions upheld convictions under state laws which could be considered vague in language because prior authoritative judicial interpretation had brought them within the degree of specificity required by the Supreme Court in Miller. Rhodes v. State, 283 So.2d 351 (S.Ct. Fla.1973); State v. J-R Distributors, 82 Wash.2d 584, 512 P.2d 1049 (1973). A third state case, however, on remand from the Supreme Court, overturned a conviction under the Indiana obscenity statute, finding that the statute was unconstitutionally vague in its failure to specify the sexual conduct, the depiction of which constituted obscenity. Stroud v. State, 300 N.E.2d 100 (S.Ct.Ind.1973).

A question arises whether the statutory provision involved in the conviction before us, 22 D.C.Code § 2001, could be constitutionally salvaged by the court without “concrete legislative efforts” (see Miller, 413 U.S. at 25, 93 S.Ct. 2607). If this were the only issue provided by the record, it might be appropriate to remand this case to the District of Columbia Court of Appeals, which is now the tribunal to render authoritative interpretations of the D.C. Code, for further consideration.

Whatever the possibility that the D. C. Court of Appeals might, by specific limitations wrought through a doctrine of construction, or re-construction, salvage the constitutionality of 11 D.C. Code § 2001, for prospective application, appellants’ convictions cannot be sustained on this record.

Under the 1973 Miller opinion the trier of fact must determine whether the work as a whole “depicts or describes, in a patently offensive way, sexual conduct [as] specifically defined . . . What is required under this opinion, and what is lacking from the charge in the case at bar, is an instruction to the jury to use a standard focusing on the depiction of specifically defined sexual conduct. Rather, the “patently offensive” test to be applied to the evidence was stated by the judge in general and subjective terms, fairly reflected in this passage from the instructions to the jury:

You must decide whether the predominant appeal of the publications is to the prurient interest, a- shameful or morbid interest in sex, and if they go substantially beyond customary limits of candor in description of such matters.

In our opinion granting the petition for rehearing, we specifically stated that although the materials were obscene under the Roth-Memoirs test, they were not “hard-core” pornography.

We have grave doubt whether these “Lesbian” pictures are violative of the narrow and specific prohibitions that now mark the limit of constitutionality. The materials are described in our earlier opinion, and reiteration is not necessary. It suffices to say that the materials do not show “ultimate sexual acts, normal or perverted, actual or simulated.” (See Miller, supra, 418 U.S. at 25, 93 S.Ct. at 2615). There is no vaginal, anal or oral penetration. Our earlier opinion stressed that “imminent” Lesbian activity might suffice to show material “patently offensive because it goes substantially beyond customary limits of candor.” (152 U.S.App.D.C. at 245, 254, 470 F.2d 393, 402) But Miller requires “hard core sexual conduct” — exemplified by “ultimate sexual acts” or the kind of conduct covered by a “lewd exhibition of the genitals.” This requirement was reiterated in Jenkins v. Georgia, supra, where the Supreme Court said: “Appellant’s showing of the film ‘Carnal Knowledge’ is simply not the ‘public portrayal of hard core sexual conduct for its own sake, and for ensuing commercial gain' which we said was punishable in Miller.”

The appellants protested throughout that they could not validly be convicted on the vague standards used by the prosecutor and the trial judge. Although their particular remedy was not accepted by the Supreme Court, that Court did acknowledge the need for specific confinement of the obscenity statutes to arrive at valid contours. Since the judgment in appellants’ case has not become final “any constitutional principle enunciated in Miller which would serve to benefit [appellants] must be applied in their case.” Hamling v. United States, 418 U.S. 87, at 102, 94 S.Ct. 2887, at 2900, 41 L.Ed.2d 590 (1974).

In the context of this case, featured by doubt as to whether the materials violate the specific Miller standards, elementary constitutional considerations preclude affirmance of a conviction where the jury was not instructed that it was its task, as surrogate for the community, to determine whether there was depiction of “sexual conduct” to a point of patent offensiveness.

The case is reversed and remanded for further proceedings not inconsistent with this opinion.

So ordered.

      . Both opinions are printed at Huffman v. United States, 152 U.S.App.D.C. 238, 470 F.2d 386 (1971).

      . Our opinion referred specifically to Alexander v. Virginia, in which the Supreme Court had requested the parties to brief the following question:
      Whether the display of any sexually oriented pictorial magazines for commercial sale, when surrounded by notice to the public of their nature and by reasonable protection against exposure of the magazines to juveniles is constitutionally permissible?
      The Supreme Court vacated the judgment of the Supreme Court of Virginia and remanded the case for further proceedings consistent with' the decisions in the most recent obscenity cases. Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973).

      . “(a) (1) It shall be unlawful in the District of Columbia for a person knowingly — ■
      (A) to sell, deliver, distribute, or provide, or offer or agree to sell, deliver, distribute, or provide any obscene, indecent, or filthy writing, picture, sound recording, or other article or representation ; * !!: * * :|:
      (E) to create, buy, procure, or possess any matter described in the preceding sub-paragraphs of this paragraph with intent to disseminate such matter in violation of this subsection; * * *
      (2) (B) For purposes of paragraph (1) of this subsection, the term ‘knowingly’ means having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of, the character and content of any article, thing, device, performance, or representation described in paragraph (1) of this subsection which is reasonably susceptible of examination.”

      . 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

      . 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).

      . See Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676, 12 L.Ed.2d 793 (1964).

      . Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968) (Harlan, X, dissenting).

      . See, e. g., Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966).

      . Thus, the Court explicitly rejected the Memoirs requirement that tire prosecution demonstrate that the materials in question were “utterly without redeeming social value.” See Miller v. California, 413 U.S. 15, 24-25, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). For a discussion of other aspects of the recent decisions, see H. Leventhal, The 1973 Round of Obscenity-Pornography Decisions, 59 A.B.A.J. 1261 (1973).

      . There is a question of the “judicial role” in such a salvaging. The state courts, which have received remands from the Supreme Court, are not subject to constraints under the Federal Constitution to the same extent as pertain to federal courts, as is illustrated by tlieir use in some states for advisory opinions. There are no pertinent rulings as to the latitude available to the District of Columbia Court of Appeals — a unique court that is organized under a law enacted pursuant to Article I of the Constitution, yet not devoid of characteristics of Article III, see Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973).

      . Cooper v. Goodwin, 155 U.S.App.D.C. 449, 454, 478 F.2d 653, 658 (1973) (Leventhal, J., concurring); M.A.P. v. Ryan, 285 A.2d 310 (D.C.App.1971).

      . This is the essence of the entire instruction as may be discerned from, the other pertinent paragraphs (JA 116-118) :
      The word “obscene” as used here signifies that form of immorality which relates to sexual impurity and which lias a tendency to arouse lustful thoughts. The publications which have been admitted into evidence must be found by you to be calculated to corrupt and deprave the minds and morals of those who view their contents. The matter must tend to arouse sexual impurities and lead to sexual impure thoughts. * * * í- *

      That is to say to find the publications or any of them obscene, you must conclude:
      (1) That the dominant theme of the publication taken as a whole appeals to a prurient interest in sex, and
      (2) That the publication is patently offensive because it goes substantially beyond customary limits of candor in tlie description of representation of sexual matters and
      (3) That the publication is utterly without redeeming social value. * * * * *
      You must decide whether the predominant appeal of the publications is to the prurient interest, a shameful or morbid interest in sex, and if they go substantially beyond customary limits of candor in description of such matters.

      . 152 U.S.App.D.C. at 258, 470 F.2d at 406.

      . In view of the procedural stance of this case, we are not called upon to decide on the merits whether the photographs before us would be subject to condemnation as a lewd exhibition of the genitals, in a trial where the jury was properly instructed under the Miller standards.


author: FAHY, Senior Circuit Judge:

text:
    BPI and James T. Nodland, Petitioners, v. The ATOMIC ENERGY COMMISSION and the United States of America, Respondents, Northern States Power Company, Intervenor.
    No. 73-1689.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 22, 1974.
    Decided July 11, 1974.

      Robert J. Vollen, Chicago, 111., for petitioners.
    Jerome Nelson, Sol., A. E. C., Washington, D. C., with whom Wallace H. Johnson, Asst. Atty. Gen., Marcus A. Rowden, Gen. Counsel, Guy H. Cunningham, III, Atty., A. E. C., Edmund B. Clark and Larry G. Gutterridge, Attys., Dept, of Justice, were on the brief, for respondents.
    Gerald Charnoff, Jay E. Silberg and William Bradford Reynolds, Washington, D. C., were on the brief, for intervenor.
    Before FAHY, Senior Circuit Judge, and TAMM and WILKEY, Circuit Judges.
   FAHY, Senior Circuit Judge:

Petitioners, Business and Professional People for the Public Interest (BPI), and James T. Nodland, seek review of an order of the Atomic Energy Commission denying their petition to intervene in a proceeding before the Commission. The proceeding grew out of the application of Northern States Power Company for a Facility Operating License for its Prairie Island Nuclear Generating Plant, located in Minnesota. Pursuant to the Atomic Energy Act of 1954, as amended (42 U.S.C. §§ 2011 et seq.), facility construction permits had been issued by the Commission to Northern States in June, 1968. Unit 1 of the facility has been constructed and is ready for commercial operation, and Unit 2 is expected to be ready for such operation this year.

I

The presently involved license proceeding commenced with the Commission’s publication of October 11, 1972, giving notice that,

any person whose interest may be affected by this proceeding may file a petition for leave to intervene with respect to the issuance of the facility operating licenses.

The Commission required that the petition conform with the provisions of its procedural rule, 10 C.F.R. § 2.714(a), which, in pertinent part, read as follows when the petition was filed in this case:

(a) Any person whose interest may be affected by a proceeding and who desires to participate as a party shall file a written petition under oath or affirmation for leave to intervene. Any such petition shall be accompanied by a supporting affidavit identifying the specific aspect or aspects of the subject matter of the proceeding as to which he wishes to intervene and setting forth with particularity both the facts pertaining to his interest and the basis for his contentions with regard to each aspect on which he desires to intervene. .

The petition, filed November 10, 1972, represents that it is on behalf of BPI-, Nodland individually, the Citizens of Minneapolis-St. Paul and Northfield, Minnesota, and the public generally. It asserts that the specifically named members of BPI and Nodland reside in the zone that would be gravely contaminated by a major accident at the nuclear power plant. The right to intervene is claimed under the following terms of section 189(a) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2239(a):

In any proceeding under this chapter, for the granting ... of any license . . . the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.

An Atomic Safety and Licensing Board of the Commission denied the petition, stating that it failed in important respects to comply with 10 C.F.R. § 2.-714(a), supra,

in that it does not identify any contentions, or the basis therefor, related to the facility . . . and it is not accompanied by the required supporting affidavits.

Leave was granted, however, to petitioners to file within 10 days,

supporting affidavits identifying the specific aspect or aspects of the subject matter of the proceeding as to which intervention is desired and setting forth with particularity the basis for their contentions with regard to each aspect on which intervention is desired, as required by Section 2.714.

On appeal to the Atomic Energy Safety and Licensing Appeal Board the denial was affirmed. The Board held, however, that petitioners did set forth a sufficient foundation to bring them within the category of persons “whose interest may be affected” by grant of the operating license. The Board also discussed the absence of verification of this interest by affidavits. It deemed it unnecessary to consider remanding to enable this defect to be cured, for it held the petition in any event inadequate under 10 C.F.R. § 2.714(a) for failure to identify the specific aspect or aspects of the subject matter of the proceeding as to which intervention was sought and to set forth with particularity the basis of petitioners’ contentions with regard thereto.

Thereafter the Commission, sua sponte, issued a memorandum agreeing with the Appeals Board. It held that the requirements of 10 C.F.R. § 2.714(a) were valid, notwithstanding the provisions of section 189(a) of the Act. The Commission relied upon its broad rule-making authority conferred by section 161 (p) of the Act, (42 U.S.C. § 2201(p)), authorizing the Commission to,

make, promulgate, issue, rescind, and amend such rules and regulations as may be necessary to carry out the purposes of this chapter.

Petitioners’ appeal is from this final decision of the Commission. We affirm.

II

In this court petitioners state that the Appeals Board, whose position was upheld by the Commission, correctly recognized that the principal issue is whether,

the Commission exceeded its statutory authority in requiring in Section 2.-714(a) that [petitioners] both identify the specific aspect or aspects of the subject matter of the proceedings as to which intervention is sought and set forth with particularity the basis for their contentions with regard thereto.

Relying upon the terms of section 189(a) of the Act, petitioners contend that the requirements of 10 C.F.R. § 2.-714(a) of more than a showing of interest which may be affected are illegal. Our decision in Easton Utilities Commission v. AEC, 137 U.S.App.D.C. 359, 424 F.2d 847 (1970) (en banc), illustrates that this reading of section’ 189(a) gives way to some degree to the rule-making authority of the Commission. There we said that “nothing whatsoever in the record ... in any way challenges the reasonableness, the necessity for, or the propriety of [10 C.F.R. § 2.714].” Id. at 851. The question decided, however, was limited to the validity of that portion of 10 C.F.R. § 2.714 which governs the time within which a petition to intervene should be filed. Accordingly, we do not rely heavily upon Easton in the present case. Of greater significance is Cities of Statesville v. AEC, 142 U.S.App.D.C. 272, 441 F.2d 962 (1969) (en banc), where intervention was denied on the ground in part that the Commission failed to see “how [petitioner] was prejudiced in any way” by such denial, since identical jurisdictional contentions had been asserted by others. This court agreed. We wrote:

This court has held that when a petitioner can show that it possesses a substantial interest in the outcome of the proceedings it has a right to intervene. However, an agency “should be accorded broad discretion in establishing and applying rules for * * * public participation, including * * * how many are reasonably required to give the [agency] the assistance it needs in vindicating the public interest.” Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 339-340, 359 F.2d 994, 1005-1006 (1966).

441 F.2d at 977. This decision, more clearly than Easton, supports Commission authority to depart from petitioners’ reading of the language of section 189(a) of the Act. Easton and Cities of Statesville demonstrate that this court has not deemed section 189(a) to be the last word on the subject of intervention. Other factors are indeed relevant to Commission control of proceedings necessary to carry out the purposes of the Act.

Ill

We turn also to the legislative history of the Act for possible help. During its consideration by the Senate, Senator Hickenlooper, when proposing an amendment which eventuated in section 189(a) as it now reads, stated,

The purpose of this revision is to specify clearly the circumstances in which hearings are to be held.

100 Cohg.Rec. 10,686 (1954). During the further progress of the floor discussion, however, Senator Humphrey, apparently unaware of the Hickenlooper amendment, offered an amendment which read in part as follows:

In any proceeding before it, the Commission, in accordance with such rules and regulations as it may prescribe, may admit as a party any interested State, State commission, municipality, public or co-operative electric system, or any competitor of a party to such proceeding, or any other person whose participation may be in the public interest.

100 Cong.Rec. 11,391 (1954). On the same day Senator Humphrey withdrew his amendment. In doing so he referred to Senator Hickenlooper’s amendment as follows:

. the part I have stricken appears to be already covered in the amendment, that was previously adopted and in the body of the bill under the chapter known as “Judicial Review and Administrative Procedure.”

100 Cong.Rec. 11,404 (1954). Arguably Senator Humphrey was of the view that section 189(a), as enacted after the Hickenlooper amendment, did not prevent the Commission from exercising authority to adopt regulations governing the intervention of interested parties in any Commission proceeding.

Perhaps of more importance in arriving at the legislative intention is information supplied by the Commission to the congressional Joint Committee on Atomic Energy after the original text of 10 C.F.R. § 2.714, without the supporting affidavit requirement, was adopted in 1962. See 27 Fed.Reg. 377, 384 (1962). The Joint Committee is composed of members of both Senate and House of Representatives.

The report of the Second Regulatory Review Panel, appointed by the Commission in 1965 to study and recommend improved procedures for the handling of nuclear reactor licensing cases, was of the opinion that the Commission’s rules should be amended

to make it clear that the statement of contentions required of petitioners for leave to intervene must be reasonably specific. * * -X- * * -X
While the term “contentions” is not defined in the Commission’s Rules of Practice, . . . the statement of contentions is analogous to good, pleadings in civil cases, i. e., the allegations must be reasonably specific.
The requirement of reasonable specificity should be strictly enforced to avoid nuisance interventions.

Licensing and Regulation of Nuclear Reactors, Hearings before the Joint Committee on Atomic Energy, 90th Cong. 1st Sess., pt. 1, at 471 (1967). As a result of these recommendations the Commission amended 10 C.F.R. § 2.714(a) to require that a petitioner’s contentions be set forth in “reasonably specific detail.” See 33 Fed.Reg. 8588 (1968).

In 1971 Commissioner James T. Ra-mey stated during testimony before a subcommittee of the Joint Committee, considering new atomic energy legislation, that the Commission’s “rules of practice already provide that a petition to intervene must set forth the petitioner’s contentions in reasonably specific detail.” AEC Licensing Procedure and Related Legislation, Hearings before the Subeom. on Legis. of the Joint Comm. on Atomic Energy, 92d Cong., 1st Sess., pt. 1 at 49 (1971).

Again in 1973 while reviewing the Commission’s reorganized regulatory program, Commissioner William O. Doub informed the Joint Committee that, “[t]he individual [who wishes to intervene] has to state his specific contentions, what he is concerned about, why he wants to appear in the proceeding as a party.” AEC Authorizing Legislation Fiscal Year 1974, Hearings before the Joint Comm. on Atomic Energy, 93d Cong., 1st Sess., pt. 2 at 780 (1973).

We think these statements support the view that the requirement of specification-of contentions contained in 10 C.F.R. § 2.714(a) of the Commission’s regulations is not inconsistent with the intention of Congress gathered from section 189(a), when read with the authority of the Commission with respect to regulations granted by section 161 (p) of the Act.

IY

Section 189(a) does not in literal terms state that any person whose interest is affected may intervene; it states that such a party shall be granted a hearing upon request and the Commission shall admit any such person as a party to the proceeding. The statute does not confer the automatic right of intervention upon anyone. Under its procedural regulations it is not unreasonable for the Commission to require that the prospective intervenor first specify the basis for his request for a hearing. Senator Hickenlooper’s description of the purpose of his amendment, to which we have referred, is not inconsistent with such a requirement. Petitioners themselves quite appropriately disclaim contending that “an intervenor need never assert the issues he believes should be resolved by the Commission, or that there should be a hearing without notice of what the issues will be.” They contend rather that the interested person need not articulate the issues until after having been admitted as a party to the proceeding, with consequent access to discovery. Section 189(a) does not seem to the court so to provide. The court considers it amenable to a construction which, when considered with section 161 (p) of the Act and the nature of intervention, permits the Commission to require the party to inform it of the issues on which he wishes to be heard, or, as held by the Commission, the contentions to be advanced and the basis therefor. Section 189(a) does not necessarily preclude a regulation that the application therefor give content to the subject matter of the hearing sought.

V

Section 2.714(a) of 10 Q,F.R. also provides that a supporting affidavit accompany the petition. To require the person “whose interest may be affected” to support the factual basis for such interest with an affidavit is clearly reasonable. A problem might arise, however, with the requirement of a supporting affidavit “identifying the specific aspect or aspects” as to which intervention is sought and “the basis for [the party’s] contentions with regard to each aspect. . . . ” These may be matters of a contentious or argumentative character which are not ordinarily required to be under oath in legal proceedings. The problem thus referred to need not now be resolved, however, for it does not affect our judgment that intervention was properly denied to petitioners. The actual basis for the denial was failure on their part to comply with those substantive provisions of 10 C.F.R. § 2.714(a), which call for identification of the specific aspect or aspects of the subject matter of the proceeding as to which intervention is sought and the particularization of the basis for the contentions with regard thereto.

In conclusion, it seems clear that the congressional classification of parties “whose interest may be affected” is not narrowly interpreted by the Commission. Those who, like petitioners, come within this interpretation are in the class entitled to seek a hearing and to become a party to the proceeding. The Commission’s regulations, however, prescribe that they must be specific as to the focus of the desired hearing. In this manner the Commission narrows those within the larger class to those entitled to participate as intervenors, and thus to assist the Commission in the resolution of the issues to be decided. In doing so we do not think the agency transgresses its legislative charter.

Affirmed.

      . Tlie Board stated:
      Without attempting to lay down any inflexible standard, we deem distances of 30 to 40 miles from this reactor site as not being so great as to require the conclusion that residents of Minneapolis and North-field are geographically outside the zone of interests protected by the Atomic Energy Act. Cf. Association of Data Processing Service Organization v. Camp, 397 U. S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Moreover, applicant’s argument overlooks the allegations that the BPI members and Mr. Nodland use the area in close proximity to the facility for a variety of recreational and other purposes.

      . We do not, as more fully to be explained in Part Y, infra, pass upon the validity in all respects of the requirement of a supporting affidavit.

      . In Siegel v. AEC, 130 U.S.App.D.C. 307, 400 F.2d 778, 783 (1968), we noted the unique degree “to which broad responsibility is reposed in the [Commission], free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives.” Moreover, “ [congressional con-soiousness of this uniqueness is attested by the unusual device of instituting the Joint Committee on Atomic Energy to keep Congress in constant touch with what was happening in this unfolding area of industrial applications of atomic energy.” Id.

      . It was not until August, 1972, that the requirement of a supporting affidavit was added to 10 C.F.R. § 2.714(a). See 37 Fed. Reg. 15132 (1972).