Hudson C. Millar, Jr., and James Jerdan Bullard, Appellants, v. Federal Communications Commission, 707 F.2d 1530 (D.C. Cir. 1983)

This matter is before the court on appeal from a decision of the Federal Communications Commission (FCC). In a memorandum opinion and order issued November 4, 1977, the FCC rendered final the prior decision of its Review Board that appellants Hudson C. Millar, Jr., and Jerdan Bullard had been guilty of "strike" conduct in connection with a 1966 application for a permit to construct a new standard broadcast station in Sumiton, Alabama. The Review Board based its decision upon a de novo review of testimony adduced at hearings held four years earlier before a hearing examiner who retired without rendering an initial decision. The Review Board concluded that appellants had instigated the formation of Sumiton Broadcasting Company, Inc., and participated in the broadcast license application of that company, with the intent to block or impede a mutually exclusive application for a station in nearby Cullman, Alabama. The latter station would have offered competition to appellants' own Cullman station, WKUL. Sumiton Broadcasting Co., 45 F.C.C.2d 933 (Rev.Bd.1974), review denied in relevant part, 66 F.C.C.2d 656 (1977). As a result, the FCC staff has deferred acting on appellants' applications for renewal and assignment of broadcast licenses for their radio stations in Florida and in Alabama.

Appellants raise a number of issues regarding the Commission's handling of this case. We affirm the Commission as to all of these, but discuss at length only two that are at the center of this case: whether the Commission's policy with regard to strike conduct was sufficiently clear when appellants acted in 1965 so that it may fairly be applied to them, and whether the agency was required to hold new hearings after the hearing examiner who heard and saw the witnesses retired.¹ 

* Mutually exclusive applications for authority to construct new radio stations broadcasting on a frequency of 1540 kHz. at Sumiton and Cullman, Alabama, were filed, respectively, by Sumiton Broadcasting Company, Inc., and Cullman Music Broadcasting Company (Cullman Music). The Cullman Music application was tendered for filing with the Commission on May 26, 1965, and was returned for technical deficiencies on November 18, 1965.

Shortly after appellant Millar was informed of the initial filing of the Cullman Music application, he approached Dan Mitchell, one of the principals of Cullman Music, to discuss the application. The overall thrust of the conversation at that meeting is not disputed. During their meeting, Millar tried to interest Mitchell in buying WKUL, Millar's station in Cullman, or in investing in another proposed broadcast venture. When Mitchell rejected these overtures, Millar mentioned the possibility of bringing an economic injury protest and the amount of time and money such a procedure would cost each of them. Although Millar and Mitchell disagreed in their testimony over whether Millar's mention of an economic injury protest constituted "a threat"--the Review Board concluded that it did--there is no dispute that Millar raised the subject.

Admittedly concerned about the competition a new station would produce, Joint Appendix (J.A.) at 223, Millar subsequently discussed with his partner, appellant Bullard, various possibilities for improving the facilities of their station, including that of applying for a better frequency. Millar then asked his Washington consulting engineer to prepare a study of available frequencies in Cullman. Millar and Bullard concluded, however, that none of the available frequencies would improve their Cullman facilities. They apparently then investigated the possibility of opening stations in Birmingham, thirty-six miles away, or Sumiton, twenty-eight miles away. They eventually decided Sumiton was too small for them, and that Birmingham already had too many stations.

During this time--before the Cullman Music application was returned in November 1965--Millar also visited several local residents who had written letters that were submitted with the Cullman application testifying, inter alia, to the projected economic growth of the area. Millar succeeded in persuading one of them to amend his views in a new letter to the Commission.

The day he learned the Cullman application had been returned, Millar spoke with his Washington communications counsel and asked whether it would be legal for appellants " [t]o use the frequency [themselves] or to give assistance to anybody else that wanted to use the frequency." J.A. at 196; accord J.A. at 201. In an affidavit, the attorney stated that he advised that, while a strike allegation might be made, none would be upheld on the basis of "the providing of assistance to a Sumiton group solely in the preparation of a 1540 kHz application." J.A. at 291.² 

Three days later, Millar and Bullard approached Wayne Sims, a former employee of Millar's at WKUL who had long expressed an interest in applying for a license for a station. The three met and discussed the possibility of Sims constructing a new station in Sumiton, Alabama. Here, again, while some elements of the conversation are in dispute, the parties agree on certain crucial points. It is clear, at least, that Millar and Bullard suggested to Sims a plan for constructing a radio station in Sumiton; that Bullard showed him the frequency study prepared for Cullman, which is twenty-eight miles from Sumiton, indicating that a number of frequencies, including 1540 kHz., were available; that Bullard also showed Sims his own "thumbnail sketch" of frequencies available in Sumiton; that Bullard said he thought the best frequency for Sumiton would be 1540 kHz.; that that frequency was selected that evening; and that Millar suggested the capital structure for the corporation that was eventually formed to prepare the application. Sims testified without contradiction that Millar offered to advance or give Sims the $500 that that capital structure called for as Sims's contribution.

The principal testimonial conflicts concerning this meeting revolve around whether Millar admitted that his purpose was to block the Cullman Music application. Sims stated in an affidavit, and later testified, that Millar admitted such a purpose, and that Millar further said that appellants' involvement should be kept secret, and that it was necessary to file the Sumiton application before the Cullman Music application could be amended and refiled. Millar and Bullard denied that they admitted an intent to block, that they told Sims to keep their conversations secret, and that they told him the application had to be filed soon. They also said that the frequency selected for Sumiton was not predetermined, but rather that Sims and Bullard mutually decided that 1540 kHz. would be "the best frequency" for that town, J.A. at 201, 249.

Within two days of this meeting, Millar called his Washington consulting engineer, Julius Cohen, to inform him that he, Cohen, would be preparing the engineering portion of a Sumiton radio station application.³  The engineer dictated a memorandum immediately after the call, as was his practice. The memorandum, dated December 1, 1965, reads as follows:

Re: WKUL

11/30/65

Millar asked that we proceed with the preparation of the application for 1540 KC in Sumiton, Alabama. Mr. Millar will not be the principal. There are a group of four or five who are filing this application. Millar asks that we proceed. We will get site information such as photos and property sketches, business and industrial areas within the community and so forth. It is desirable to get the application filed before the prior Cullman applicant refiles an application that had been returned. In any event, the Sumiton group has been considering this frequency for many months and will proceed regardless of what action the Cullman applicant may make.

J.A. at 299. This memorandum, which appears to indicate that Millar had a substantial role in the Sumiton application and that he expected the Cullman application to be refiled, was retracted in part by Cohen at the hearing. Cohen, testifying after Millar had denied crucial parts of the memorandum, said that Millar had not ordered him to proceed and that it was Cohen who had suggested that the Sumiton application be filed before the Cullman application could be refiled.

Sims proceeded to gather a group of two other investors to form the corporation and prepare the application. During this period, both Millar and Sims testified that the two had several phone conversations concerning the Sumiton application, and Sims stated that in these calls, which he said Millar initiated, Millar would "push [ ] me to find out what the hold-up was, who was dragging their feet and why we weren't moving any faster," J.A. at 21.

Eventually, Sims withdrew from the project, claiming lack of time, and was replaced by J.L. Sartain. Sartain, not having prepared an application before, expressed a need for assistance on the project. After clearing this course with Millar's Washington counsel,⁴  Bullard was hired in December 1965 to help prepare the application. Bullard testified that he did not mention his or Millar's prior involvement in the project to the three Sumiton group members because " [i]t just never came up" and because two of the group members "did not view Mr. Millar favorably." J.A. at 251. Sims also did not disclose the earlier meeting and conversations, but he testified he did so on instructions from Millar. J.A. at 161-62. The Sumiton group filed its application with the Commission on January 24, 1966. The Cullman Music application was refiled on April 14, 1966.

Because the applications were mutually exclusive, they were designated for a hearing on standard comparative issues. Based upon affidavits filed by the Cullman Music applicants describing, inter alia, the meetings with Mitchell and Sims, and Bullard's participation in the preparation of the Sumiton application, a strike issue was added against Sumiton Broadcasting. Appellants Millar and Bullard were made parties to the proceeding, since the affidavits accused them of instigating the filing of the Sumiton application and conspiring with the Sumiton principals to block the Cullman Music application. On May 26, 1969, a further technical issue was designated against the Cullman Music application. The Cullman Music applicants then largely ceased their participation in the proceedings and their application was dismissed on the last day of the hearings. Thus, the Sumiton application alone was considered.

Hearings were held in December 1969 and March 1970 before FCC Hearing Examiner Thomas H. Donahue. On July 24, 1970, after all the testimony had been received, but before the closing of the record, Examiner Donahue retired and, four days later, the case was assigned to a new hearing examiner. The record was held open for the submission of exhibits and corrections to the transcripts, but no further testimony was taken. No objection was made to the substitution of hearing examiners.

On May 26, 1972, the substitute hearing examiner, the late Charles J. Frederick, issued an initial decision in which he concluded that the Sumiton Broadcasting application had been filed as a strike application through the efforts of Millar and Bullard, although without the knowledge of the Sumiton principals. He found that in any case the Sumiton application had to be denied because of the filing of a forged affidavit by one of its former principals and the failure of the applicants to report changes in stockholder and financial qualifications, as required by the Commission's rules. Sumiton Broadcasting Co., 45 F.C.C.2d 1000 (Initial Decision 1972), aff'd, 45 F.C.C.2d 933 (Rev.Bd.1974), rev'd in part & review denied in part, 66 F.C.C.2d 656 (1977).

Appellants and the Sumiton applicants sought review of the initial decision before the Commission's Review Board. The Board considered the substitute examiner's detailing of his findings and conclusions to be inadequate, and it therefore undertook a de novo review of the record in minute detail. The Board concluded that appellants were guilty of strike conduct, having instigated and assisted in the preparation of the Sumiton application for the purpose of deterring or blocking the Cullman Music application, and that the Sumiton principals were knowing participants in that conduct. The Review Board thus affirmed the examiner's decision while declining to adopt the findings supporting that decision.⁵ 

Appellants and the Sumiton applicants filed applications for review with the Commission. Appellants' application was summarily denied. Sumiton Broadcasting Co., 66 F.C.C.2d 656, 657 (1977).⁶  This appeal followed.

II

The Commission's strike policy has been derived over the years from the broad command of the Communications Act that licenses may be issued to such citizens or nationals "as the Commission finds qualified." 47 U.S.C. § 303(l) (1) (1976). The essence of the policy is expressed on the application form for broadcast licenses, which requires a representation that "this application is not filed for the purpose of impeding, obstructing, or delaying determination on any other application with which it may be in conflict." FCC Form 301, J.A. at 1. See generally Pressley v. FCC, 437 F.2d 716, 720 (D.C. Cir. 1970). This policy, intended to protect the Commission's processes from abuse and ensure that licensees adhere to certain ethical standards, has been extended not only to applicants, but to licensees who participate in or instigate the filing of applications for the purpose of blocking a competitor. See id. at 721; Asheboro Broadcasting Co., 20 F.C.C.2d 1, 3 (1969) ("Any licensee who is found to have participated in the filing of an application, one of whose purposes is the obstructing, impeding, or delaying of a grant of another application, places in jeopardy the authorization for the existing station which is the intended beneficiary of the strike application."); John C. Roach, 20 F.C.C.2d 255, 257-58 (1969) (license renewal denied, in part because of prior "complete sponsorship" of a strike application), aff'd sub nom. Gordon County Broadcasting Co. v. FCC, 446 F.2d 1335 (D.C. Cir. 1971); Capitol Broadcasting Co., 30 F.C.C. 1 (1961) (license denied where applicant's president had filed a strike application to impede a competitor).

Appellants object that the policy laid out above was insufficiently defined in 1965, when the alleged strike activity in this case took place, and therefore should not be retroactively applied to them. They cite a string of decisions that they say stand for the proposition that "the applicant's good faith intent to build [the station applied for] will absolve a licensee on charges of strike activity." Reply Brief for Appellants at 22; see id. at 20 (citing Smackover Radio, Inc., 36 F.C.C. 776 (1964), Northern Indiana Broadcasters, Inc., 45 F.C.C. 1504 (1964), and Radio Station WTIF, Inc., 1 F.C.C.2d 1543 (Initial Decision 1965)).

We think appellants' own conduct and admissions in this case belie their claim that they relied on the Sumiton group's good faith intent to build to absolve them. They admit that they knew they were barred from assisting a Sumiton applicant while the Cullman Music application was on file, regardless, apparently, of the bona fides of the applicant's intention to build the station. Sumiton Broadcasting, 45 F.C.C.2d at 953 (Bullard testified that when a conflicting application is on file, he would not touch it "with a 10 ft. pole"); see J.A. at 193-96, 201 (Millar's understanding was the same). Consistent with that belief, they did not approach Sims until immediately after the Cullman Music application was returned.

Appellants must argue, therefore, that the crucial factor for them was not the applicant's intent to build, which the Commission agrees was once a determinative factor,⁷  but rather whether a competing application was in fact on file and pending with the Commission. This appears to have been the claim they sought to advance in their testimony. See J.A. at 193-96, 201; 45 F.C.C.2d at 953. They cite no case law, however, in support of making the difference between pending and returned applications the crucial distinction.

The Review Board concluded that such a rule would, inter alia, "defeat [ ] the Commission's strike policy." Id. at 940. The Board also canvassed the Commission's rules and found that returned applications are not treated like withdrawn or dismissed applications. Id. at 938-39 & n. 13 (citing 47 C.F.R. Sec. 1.1102(i) (1972) (derived from 47 C.F.R. Sec. 1.1103(d) (1964)) (returned applications may be refiled without payment of additional fee unless changes are major)). Citing appellants' own experience with an application that was filed, returned as untimely, and then refiled in 1965, 45 F.C.C.2d at 950, the Board found that appellants' claimed assumption that the Cullman Music application would not be refiled on the same frequency was a "delusive liberty," id. at 988.

We agree that the appellants' claimed reliance on the line between pending and returned applications was, if it occurred, self-delusion that was and continues to be unsupported by law or logic. As the Commission pointed out in its brief to this court, "It makes no rational difference under the strike policy whether an application is filed following the filing of another in order to impede the latter, or ... [it is filed] in anticipation of the filing of another in order to discourage any such filing and to ensure at a minimum that the other application [will] not quickly be granted." Brief for Appellee at 37. We think it clear that the crucial element was and is an intent to block another application. See, e.g., Blue Ridge Mountain Broadcasting Co., 37 F.C.C.2d 791, 796, 800-01 (Rev.Bd.1964) (an application will be denied if filed solely or in part to impede, obstruct, or delay grant of another application), review denied, FCC 65-5 (Jan. 7, 1965), aff'd sub nom. Gordon County Broadcasting Co. v. FCC, 6 Rad.Reg. 2 (P & F) 2044 (D.C. Cir. 1965) (mem.); Al-Or Broadcasting Co., 37 F.C.C. 935, 948 (Initial Decision) ("Motivation is therefore of importance and where the motive is to create a hearing situation in order to hinder a potential competitor, it is condemned."), aff'd, 37 F.C.C. 917 (Rev.Bd.1964), review denied, FCC 65-99 (Feb. 11, 1965), aff'd sub nom. Corbett v. FCC, 6 Rad.Reg.2d (P & F) 2023 (D.C. Cir. 1965) (mem.).⁸ III

The Review Board gave two reasons for refusing to remand the case for rehearing before the substitute examiner. First, the Board apparently felt that any objection to a decision by a substitute examiner should have been made at the time of substitution. The Board stated that

[a]t that time, [appellants] had a choice of seeking a new trial if they then believed, as they now assert, that demeanor findings which can be made only by the trier-of-fact who observed the witnesses, are an indispensable element of a fair and just decision. They did not do so.

45 F.C.C.2d at 933 n. 3. Second, the Board held that demeanor findings were not a legal prerequisite to a valid decision nor needed to assure a fair and just result. The Board held that

assuming arguendo that Judge Donahue in the instant case had issued the Initial Decision and had made favorable demeanor findings with respect to Millar and Bullard, ... such favorable demeanor findings could not withstand the clear and convincing facts which are detailed in our Decision here.

Id. at 936 n. 8. We affirm on both grounds.

The appellants in this case did not move to have the substitute examiner rehear any of the testimony nor object to his failure to do so until their briefs and oral argument before the Review Board, more than twenty-two months after they were notified of the substitution. As the Supreme Court has written in the context of objections to the manner of a hearing examiner's appointment, "Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice." United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S. Ct. 67, 69, 97 L. Ed. 54 (1952) (emphasis added). This rule is given particular force in the case of the FCC by section 405 of the Communications Act, which suggests that it may be a "condition precedent to judicial review" that the authority making the particular order complained of have had "opportunity to pass" on the question raised. 47 U.S.C. § 405 (1976).

Section 405 appears to establish that the appropriate time for objection to a failure to rehear was while the matter was at the hearing examiner stage. In any case, we may assume, absent evidence to the contrary, that the Review Board accurately stated Commission practice when it suggested that the proper time for objection to the failure to hear new testimony was at the time of substitution. See 45 F.C.C.2d at 933 n. 3. Clearly, appellants did not comply with this practice.

Other courts have held that the lack of a timely motion to have a substitute hearing examiner rehear testimony will be construed as a waiver of the objection. See, e.g., Pigrenet v. Boland Marine & Manufacturing Co., 656 F.2d 1091, 1095 (5th Cir. 1981) (en banc) ("We have previously held that a party, in order to preserve the issue for appeal, must object at the fact-finding level to a substituted fact-finder's failure to conduct a new evidentiary hearing."); Braswell Motor Freight Lines, Inc. v. United States, 271 F. Supp. 906, 908-911 (W.D. Tex. 1967) (three-judge district court) (objection to change of examiners midway through hearings was untimely where not made until ten months after substitution, once examiner had filed his report); see also Anaya v. Romero, 627 F.2d 226, 228 (10th Cir. 1980) (per curiam) (failure to object to change in magistrates until appeal constituted waiver; "the issue was an obvious one for appellant to raise if he thought it worthwhile") (footnote omitted), cert. denied, 450 U.S. 926, 101 S. Ct. 1380, 67 L. Ed. 2d 356 (1981). As this court has said in a related context, "It will not do for a claimant to suppress his misgivings while waiting anxiously to see whether the decision goes in his favor. A contrary rule would only countenance and encourage unacceptable inefficiency in the administrative process." Marcus v. Director, Office of Workers' Compensation Programs, U.S. Department of Labor, 548 F.2d 1044, 1051 (D.C. Cir. 1976) (objection to bias of administrative law judge was untimely when first made to Review Board).⁹ 

Thus, we think appellants' failure to raise before the substitute examiner the question of rehearing testimony constituted a waiver. Nevertheless, we do not think the Review Board's opinion is crystal clear that the Board in fact relied on this point in its refusal to order rehearing. See Sumiton Broadcasting, 45 F.C.C.2d at 933 n. 3 (quoted supra p. 1537). Therefore, we go on to consider the validity of the Board's clear holding that demeanor findings could not affect their result. See generally SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 1577, 91 L. Ed. 1995 (1947) (agency action must be judged solely on the grounds invoked by the agency).

The starting point in deciding whether it was permissible for the Review Board in this case to decide the matter without the benefit of demeanor findings is the Administrative Procedure Act, which provides that " [t]he employee who presides at the reception of evidence ... shall make the recommended decision or initial decision ..., unless he becomes unavailable to the agency." 5 U.S.C. § 554(d) (1976). Arguably contrary to the implication of these words, this section has been widely interpreted to allow the agency, once the examiner who presided at the hearings becomes unavailable, to dispense with a rehearing of testimony before the new examiner only when demeanor evidence is unnecessary or of little consequence in deciding the case. See, e.g., Appalachian Power Co. v. FPC, 328 F.2d 237, 240 (4th Cir.) (rehearing needed where demeanor is "an important factor"), cert. denied, 379 U.S. 829, 85 S. Ct. 59, 13 L. Ed. 2d 38 (1964); Gamble-Skogmo, Inc. v. FTC, 211 F.2d 106, 115 (8th Cir. 1954) (rehearing not required when credibility evaluation based on hearing and seeing witnesses testify is "unnecessary" or not "of material assistance"); Van Teslaar v. Bender, 365 F. Supp. 1007, 1012 (D. Md. 1973) (rehearing needed where "demeanor and conduct of the witnesses might be important"); Brooklyn Eastern District Terminal v. United States, 302 F. Supp. 1095, 1105 (E.D.N.Y. 1969) (three-judge district court) (rehearing unnecessary where demeanor "is of little or no consequence"); 2 K. Davis, Administrative Law Treatise Sec. 11.18, at 113 (1958) (key consideration is to prevent demeanor, "whenever it may be a substantial element," from getting lost).

Courts and commentators have identified several kinds of cases in which demeanor evidence is not necessary or is of little consequence. For example, credibility of witnesses may be of utterly no significance, as when a case turns on a question of public records or stipulated facts. See id. (stipulated facts); W. Gellhorn & C. Byse, Administrative Law 1056 (4th ed. 1960) (record questions). In other cases, credibility may play a role, but demeanor may not, as when the crucial evidence is presented through documents, such as affidavits, depositions, or extrajudicial writings, see 2 K. Davis, supra, Sec. 11.18, at 113 (documentary evidence); Note, Replacing Finders of Fact--Judge, Juror, Administrative Hearing Officer, 68 Colum. L. Rev. 1317, 1328 (1968) (affidavits, depositions), or when the conflicting testimony is that of experts, see New England Coalition on Nuclear Pollution v. United States NRC, 582 F.2d 87, 100 (1st Cir. 1978) (credibility of experts is "a function of logical analysis, credentials, data base, and other factors readily discernible to one who reads the record," not of demeanor); Note, supra, at 1328 & n. 52 (reliance on expert's demeanor to determine credibility is "dangerous").

Finally, even in cases turning on resolution of conflicting, nonexpert testimony, courts have said that a witness's testimony may be, under the circumstances of the case, so incredible, or contrary evidence may be so overwhelming, that demeanor could not convince a reasonable factfinder that the witness was telling the truth. See Gamble-Skogmo, 211 F.2d at 115 (if testimony is "inherently incredible," demeanor is irrelevant); St. Louis Southwestern Railway v. Henwood, 157 F.2d 337, 342 (8th Cir. 1946) (conflicts between testimony and documents "speak from their face" and demeanor is of little use), cert. denied, 330 U.S. 836, 67 S. Ct. 965, 91 L. Ed. 1282 (1947); Note, supra, at 1329 (decision can be made on written record alone where testimony of one party is "so intrinsically incredible, so unlikely in view of documentary evidence or undisputed testimony in the case, or so tenuous compared to contrary evidence that no matter how convincing the demeanor of the witness who presents it, he will be disbelieved") (footnotes omitted); id. at 1343-44.¹⁰  In these cases, too, there should be no hesitation in allowing decision on the written record alone.¹¹ 

The Review Board here concluded that the case at bar fell into this last category. It held that "assuming arguendo that Judge Donahue in the instant case had issued the Initial Decision and had made favorable demeanor findings with respect to Millar and Bullard, ... such favorable findings could not withstand the clear and convincing facts which are detailed in our Decision here." Sumiton Broadcasting, 45 F.C.C.2d at 936 n. 8. Its method was thus precisely that envisioned by the authorities cited above: it hypothesized a set of demeanor findings consistently contrary to the result it reached and asked whether those findings would change its result. We can review this result just as we review any other case: we ask, does the evidence, including the hypothetical demeanor findings, support the result? In the case of an agency, the amount of evidence required to support the result is "substantial evidence." See 5 U.S.C. § 706(2) (E) (1976). See generally 4 K. Davis, supra, Secs. 29.01, 29.02.¹² 

This is a deferential standard of review, narrower than our review of a judge's findings under the clearly erroneous standard. Id. Sec. 29.02, at 121-24. As Professor Davis has written, "the main inquiry is whether on the record [including, in this case, the hypothetical demeanor evidence] the agency could reasonably make the finding." Id. Sec. 29.01, at 118; see also Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 216, 83 L. Ed. 126 (1938) ("Substantial evidence .... means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."). The question we must answer thus is essentially whether the agency's conclusion that demeanor could not affect its result is reasonable on the record as a whole, including the hypothetical demeanor findings. It should be recalled that our review might well permit the agency to reach either of two contradictory results. See, e.g., American Federation of Television & Radio Artists v. NLRB, 395 F.2d 622, 628 (D.C. Cir. 1968).

Our review of the facts under this standard constrains us to uphold the Commission in this case. While certain of the Board's collateral findings might be subject to attack, its ultimate conclusion that Millar and Bullard instigated and assisted the Sumiton application with intent to block, delay, or impede the Cullman Music application is amply supported.

The uncontroverted evidence shows that appellants were deeply concerned about the competitive threat a new station would pose: as soon as he heard about the Cullman Music application, Millar visited Mitchell and mentioned the cost and delay an economic injury protest would incur; he paid calls on several supporters of the application and urged them to withdraw their support; he and Bullard searched for stations elsewhere that would shore up their threatened business.

Moreover, the record is clear that Millar and Bullard went to extraordinary lengths to instigate the Sumiton application: they approached Sims with a virtually complete plan for the station, including a capital structure for the proposed corporate owner; Bullard suggested the only frequency that would block the Cullman application and the parties immediately settled on that frequency; Millar may have offered to supply part of the initial capital required; Millar called his own engineer and told him to start on the application; Millar was kept, or kept himself, informed about the progress of the application.

The crucial nexus between these two inferences--motive and action--is supplied by the timing (three days after the return of the Cullman application), the lack of a plausible alternative motive (the appellants said they were merely doing Sims a favor), and, in small part, by the fact that their participation was kept a secret. Moreover, the witnesses who testified to more direct admissions of intent--Cohen in his memorandum, and, to some extent, Sims--do not appear to have had the motive for lying that appellants clearly had.¹³  We find that no matter how persuasive demeanor findings in favor of Millar and Bullard might be, the Board's finding on the intent to block would be fully supported by substantial evidence.

The Board also made findings on whether this intent might be mitigated by a good faith belief in the legality of their conduct. The Board found that appellants did not follow their attorney's advice, which it found was limited to assistance to, not instigation of, a 1540 kHz. application, and that in any case, the appellants knew that their conduct was prohibited. Sumiton Broadcasting, 45 F.C.C.2d at 966, 988. It is the latter of those two alternative holdings that we affirm.¹⁴ 

The primary evidence on this point is that the participation of Millar and Bullard was kept secret from the members of the Sumiton group, even during Bullard's later assistance in the preparation of the application, during which he worked closely with Sartain for eight ten-hour days. The Commission found that this earlier participation was not revealed, 66 F.C.C.2d at 659, 664, and neither party here disputes that finding.¹⁵  This fact alone argues strongly in favor of a finding of bad faith.

The only dispute is over whether the reason for this secrecy was that " [i]t just never came up" or that Bullard kept it from the group because some of its members "did not view Mr. Millar favorably," as Bullard testified, J.A. at 251, or that it was necessary to keep the involvement secret because it would reveal the illegal intent to block, as Sims testified, J.A. at 161-62. Appellants have cited no testimony from the Sumiton group members corroborating Bullard's statement that they disliked Millar, or why. There is also no suggestion that Sims was aware of this dislike when he did not divulge appellants' involvement to his future partners. Moreover, since there is substantial evidence that appellants, or at least Millar, expected the Cullman Music application to be refiled,¹⁶  their claim of good faith belief in legality is based on what we have found to be the utterly illogical conclusion that as long as there was no competing application actually on file, preparation of an application that would block Cullman Music's would be legal, regardless of intent. In addition, appellants cannot deny that they knew their projected course was of at least questionable legality, because their attorney made clear that he advised them that a strike allegation might be made against them for it. J.A. at 290. Finally, they have not succeeded in casting any serious doubt on the general credibility of Sims, while Bullard's self-interest is obvious.

The totality of these circumstances tips the scale substantially in favor of Sim's version of events. We think that, given the discretion inherent in the substantial evidence standard, even the addition of contrary demeanor findings would not so shift the balance that we would reverse a Board finding of bad faith.¹⁷ IV

While we agree with appellants that the delays in this case have approached unconscionability, we do not think they are so outrageous, or so clearly the Commission's fault, that action by this court in this particular case is warranted.¹⁸  We do note, however, that the delays have tended to moot the appellants' request for a new hearing in order to take account of demeanor evidence, which they say is necessary to resolve crucial credibility conflicts. Demeanor can only make a difference when a witness testifies from actual memory. Were we to order a remand in this case, it is hard to imagine that a new hearing would provide much live testimony from actual memory. Instead, the hearing would probably consist of reaffirmations of prior testimony, and vague and unreliable claims of actual recollection. Thus, as a practical matter, the delays in this case have tended to leave us with the somewhat uncomfortable choice of dismissing the complaint on the grounds of a denial of some uncertain right to speedy procedures, or making do with what we have. In the circumstances of this case, in which the evidence of strike conduct is compelling, we have perceived the latter to be the course of substantial justice.

For the foregoing reasons, the order appealed from is affirmed.

It is so ordered.