opinion: THE PRICE BROADCASTERS, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Times and News Publishing Company, The Monocacy Broadcasting Company, Intervenors. THE MONOCACY BROADCASTING COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Times and News Publishing Company, The Price Broadcasters, Inc., Intervenors.
  Nos. 16039, 16043.
  United States Court of Appeals District of Columbia Circuit.
  Argued May 17, 1961.
  Decided Aug. 22, 1961.
  Petition for Rehearing En Banc Denied Sept. 21, 1961.
  Mr. John B. Kenkel, Washington, D. C., with whom Mr. Arthur H. Schroeder, Washington, D. C., was on the brief, for The Price Broadcasters, Inc., appellant in No. 16039 and intervenor in No. 16043.
  Mr. John P. Southmayd, Washington, D. C., for The Monocacy Broadcasting Co., appellant in No. 16043 and interven- or in No. 16039.
  Mr. Richard M. Zwolinski, Counsel, Federal Communications Commission, with whom Messrs. Max D. Paglin, Gen. Counsel, Federal Communications Commission, Daniel R. Ohlbaum, Asst. Gen. Counsel, Federal Communications Commission, and Mrs. Ruth V. Reel, Counsel, Federal Communications Commission, were on the brief, for appellee. Mr.
  James T. Brennan, Jr., Counsel, Federal Communications Commission, also entered an appearance for appellee.
  Mr. Robert M. Booth, Jr., Washington, D. C., with whom Mr. John L. Tierney, Washington, D. C., was on the brief, for intervenor Times and News Publishing Co.
  Before DANAHER, BASTEAN and BURGER, Circuit Judges.
  DANAHER, Circuit Judge.
  The Commission consolidated for hearing three applications for construction permits for standard broadcast stations on the same frequency, 1320 kc. Price sought a construction permit for a station at Frederick, Maryland. Monocacy, already operating WFMD at Frederick, sought a permit to establish a new station to operate unlimited time at Gettysburg, 32 miles away. WGET sought to change its existing Gettysburg facilities from 1450 kc, unlimited time, to 1320 kc, 1 kw daytime and 500 w nighttime. The examiner concluded that the need for a second local station at Frederick exceeded the need either (1) for a second station at Gettysburg or (2) for improving the broadcasting facilities of WGET. He recommended an award to Price even though the two Gettysburg applicants proposed to operate from Gettysburg both day and night, whereas Price, the Frederick applicant, proposed only daytime service.
  Nevertheless, the Commission after oral argument on exceptions filed by the parties concluded that the intendment of section 307(b) of the Act, 47 U.S.C.A. § 307(b), would better be fulfilled by a grant of either of the fulltime proposals for Gettysburg. The Commission decided that it was more important that even a comparatively small number of persons in the Gettysburg service area receive a primary nighttime service and supplemental daytime service than that a larger number of persons in Frederick receive additional daytime service. We are satisfied that the record establishes an adequate basis for the Commission's conclusion that a fair, efficient and equitable distribution of radio service would be accomplished more certainly than would be the case if the grant had followed Price’s Frederick proposal for service daytime only.
  The Commission then went on to conclude that the Monocacy proposal to bring a second local service to Gettysburg, important though it might be, was of secondary significance since WGET was found to be substantially superior to Monocacy “in virtually every area of standard comparative consideration.” Factors so weighed and found in favor of WGET included past broadcast performance, awareness of the needs of the Gettysburg service area, local residence, diversification of business interests and participation in the civil affairs of Gettysburg. The Commission’s decision reflected its further determination that WGET would better serve the public interest than would Monocacy, not only because WGET was deemed markedly superior to Monocacy on the basis of past performance and like factors but because WGET with the changed facilities and expanded coverage would continue to provide the only local service to Gettysburg.
  Specific details predicating the Commission’s determination on this aspect may be perceived from certain of its conclusions which we set forth verbatim:
  “Monocacy would bring a second local service to Gettysburg. Daytime, it would serve virtually 100% of the land area of Adams County, and would serve a total interference-free area of 1,211 sq. mi. having a population of 93,676. In addition to WGET’s present operation, Gettysburg presently receives primary service daytime from Stations WBAL, Baltimore, WHVR, Hanover, and WHP, Harrisburg. The whole of Monocacy’s 0.5.mv/m area is presently served with such a signal by the foregoing stations, and within this area is presently received a minimum of six and a maximum of twelve other primary services. The 2.0 mv/m contour of Monocacy would encompass the city of Littlestown and would bring that city a fourth such primary service.
  “Daytime, WGET would serve 96% of the land area of Adams County, and would serve a total interference-free area of 1,233 sq. mi. having a population of 113,470. This would be a gain of 65,224 persons, 14,985 of whom live in the cities of Littlestown, McSherrystown and Hanover, Pennsylvania. Each of the latter two cities presently receives at least five other 2.0 mv/m signals, 50% of Hanover receiving six. Within the WGET gain area there is presently received a minimum of five 0.5 mv/m signals and a maximum of thirteen.
  ******
  “The WGET nighttime interference-free contour would encompass 29.8 sq. mi. having a population of 9,276. Within the foregoing area are 18.3 sq. mi. wherein 1,348 persons presently receive no nighttime primary service from any source. A grant of the WGET application, then, would bring a first nighttime service to all of these areas and persons. On the other side of the coin, however, such a grant would recreate white areas totaling 2.4 sq. mi. having a population of 217. The net white area gains of WGET would thus be 15.9 sq. mi. containing 1,131 persons. The Monocacy nighttime interference-free contour would encompass 23.3 sq. mi. with a population of 8,278. Of these, 7,717 would be receiving only their second nighttime primary service, and 561 would be receiving their first. In view of the considerations set forth here— the white area proposal of WGET and the white and gray area proposals of Monocacy — we believe that there is ample reason for preferring either of the Gettysburg applications to that of the lone application for Frederick.”
  The findings in the examiner’s Initial Decision, except as modified in the light of the exceptions, were adopted. Not disturbed was his appraisal that “The manner in which Station WGET has served Gettysburg and Adams County was documented in minute detail,” including its “most generous” offers of its facilities to the numerous civic, religious, educational, social and other public service organizations in Gettysburg and Adams County. He found that if WGET is the “successful applicant, its programming will be modified so as to devote more time and attention to the activities in the areas and communities which do not now receive primary service from the station.” It is our view that ample basis was shown for the Commission’s ultimate conclusion that WGET is entitled to a substantial preference over Monocacy.
  The Commission concluded that the public interest would better be served by permitting a superior existing station to expand its coverage than by making an award to a new but inferior competitor. Before we could overturn the Commission on this important aspect of the case, we would be bound to say that the Commission’s conclusion as a matter of law was arbitrary and capricious. The record simply does not justify our doing so, for exercise of the decisional process in so close a case was singularly within the Commission’s prerogative, not ours. That the frequency to be vacated by WGET as a result of the award would thereafter be available for assignment to some other applicant is an important by-product of the Commission’s final decision. In sum, the Commission’s ultimate judgment is well within the area of its allowable discretion and rests upon appropriate and adequately fortified public interest criteria.
  We have examined the record and considered carefully the arguments advanced by the competing applicants. We are satisfied that the contested conclusions of the Commission do not lack substantial support in the record as a whole.
  No error of law having been exhibited to us with respect to the Commission’s decision, our review function is at an end. The Commission’s decision is Affirmed.
  . We may take it as undisputed “that the Frederick region has been growing at a substantially faster rate than has the Gettysburg region,” as the Commission later notea. ' ■ '
  . Cf. F. C. C. v. Allentown Broadcasting Co., 1955, 349 U.S. 358, 362, 863, 76 S.Ct. 855, 99 L.Ed. 1147.
  . Cf. Kentucky Broadcasting Corp. v. Federal Communications Comm., 1949, 84 U.S.App.D.C. 383, 174 F.2d 38.
  . As the Commission was aware, not unrelated to the problem of assignments in the Frederick area were the issues raised in Richard Lewis, Jr., Inc., (Monocacy Broadcasting Co.) v. F. C. C., 1961, 110 U.S.App.D.C. 269, 292 F.2d 762.
  . Universal Camera Corp. v. National Labor Relations Bd., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.