948 F.2d 599
UNITED STATES of America, Plaintiff-Appellee,v.George Vernon JOHNS and Albert William Haberkorn,Defendants-Appellants.
Nos. 89-10597, 90-10009.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted April 3, 1991.Decided Nov. 4, 1991.

Roger S. Hanson, Santa Ana, Cal., for defendants-appellants.
John K. Vincent, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before TANG, FARRIS and D.W. NELSON, Circuit Judges.
D.W. NELSON, Circuit Judge:

I. OVERVIEW

1
Appellants George Vernon Johns and Albert W. Haberkorn appeal the district court's denial of their motion to suppress evidence in connection with their prosecution for conspiracy to manufacture methamphetamine.   The district court found that although the search of appellant Johns' storage locker did violate the Constitution, no suppression was required because the officers who conducted the search relied on the validity of the warrant in good faith.   That ruling is affirmed.

2
We also uphold the district court's determination that the affidavit, redacted of any misrepresentations, contained sufficient evidence of probable cause to search.   We also affirm the district court's ruling that the government's failure to disclose the existence of an informant it used in its investigation did not undermine its ability to rely on the warrant in good faith or negate probable cause to search.   Finally, we hold that the district court did not err in excluding the appellants from an in camera hearing about that informant.II. FACTS

3
On January 13, 1985, FBI agent John White applied for a search warrant for Unit 39 of the Kernville Mini-Storage in Kernville, California.   After consulting with Assistant U.S. Attorney ("AUSA") Leighton, an AUSA of five years with three years of experience in prosecuting drug cases, White decided to apply for a "sneak and peek" warrant to gain surreptitious entry into the storage unit and photograph its contents.   Leighton advised White that he had used a "sneak and peek" warrant before and that he knew of no prohibition against such searches.   Leighton counseled White on what to state in the warrant application.   Their plan was to watch the unit where they suspected certain chemicals were stored until they gained a lead about the location of the methamphetamine lab where the chemicals were used.   The officers intended to notify the owners of the premises once an arrest was made or when they decided to conclude the surveillance.

4
White's affidavit accompanying the request for a search warrant stated that:  1) on January 10, 1985, federal agents "went to Unit 39 and detected no unusual odors emitting from the front of Unit 39," 2) Bray, a reserve deputy on the Kern County Sheriff's Office, was renting Units 10 and 11 at the Kernville Mini-Storage;  these units were directly behind Unit 39 and separated from it only by a quarter-inch thick sheet of plywood, 3) on January 12, 1985, Bray and an investigator of the Kern County Sheriff's Office, Myers, visited unit 10 and 11, and 4) the men smelled an odor "which they both associated with the illicit manufacture of methamphetamine" coming from Unit 39;  the odor was strongest at the rear of Unit 10, which was immediately adjacent to Unit 39.   The affidavit further stated that Bray "has often smelled methamphetamine itself and the odor emitting from Unit No. 39 through Units No. 10 and 11 is consistent with the smell of methamphetamine, and inconsistent with any other activity."   Based on this information, White asserted that there was probable cause to believe that Unit 39 contained chemicals utilized in the manufacture of methamphetamine.

5
In reliance upon this affidavit, a magistrate issued a search warrant for White to enter Unit 39 surreptitiously and examine its contents without taking anything.   The agents and the magistrate discussed the fact that the agents would not give notice of the search when they first entered the storage locker, nor would they give notice for an indefinite period thereafter.   The magistrate approved the warrant requiring only that they return to him an inventory of the items photographed.

6
The agents entered the unit on January 13, 1985, and photographed its contents.   Inside they found boxes of chemicals and glassware commonly used in the manufacture of methamphetamine.   After this initial search, the government placed agents near the storage unit to observe any activity.   On January 26, 1985, agents observed someone bring more boxes to the unit.   On March 2, 1985, they saw someone pick up the chemicals and take them to a lab at another building.   Government agents searched the second building on March 11, 1985, discovered a methamphetamine laboratory, and arrested the appellants.

7
On April 2, 1986, appellants moved to suppress this evidence and for an evidentiary hearing on the validity of the search warrant.   Their motion was denied.

8
On April 28, 1986, both Johns and Haberkorn entered a conditional plea of guilty to conspiracy to manufacture and distribute methamphetamine.   After denying Johns' motion to reconsider the denial of his motion for an evidentiary hearing in light of United States v. Freitas, 610 F.Supp. 1560 (N.D.Cal.1985), rev'd, 800 F.2d 1451 (9th Cir.1986), the district court sentenced Johns to ten and Haberkorn to five years in prison.

9
On July 15, 1988, we issued an opinion in United States v. Johns, 851 F.2d 1131 (9th Cir.1988), holding that appellants had made a substantial preliminary showing that a hearing to test the validity of the affidavit was warranted under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).   We also remanded to determine whether the FBI agents relied in good faith on the "sneak and peek" warrant.

10
Following the Franks hearing, the district court found that the affidavit, redacted of any false statements or misrepresentations, still supported a finding of probable cause.   The district court held the police relied on the warrant in good faith after consulting AUSA Leighton and the magistrate.   Finally, the district court ruled that it was not error to exclude appellants from an in camera hearing on the government's informant, and that the failure to disclose the informant's existence did not undermine the government's good faith or affect the existence of probable cause.

III. DISCUSSION
A. Jurisdiction and Standard of Review

11
Our jurisdiction over this appeal rests on 28 U.S.C. § 1291 (1982).   We focus here on the findings and conclusions of the district court on remand.   All purely factual findings are reviewed under the clearly erroneous standard.  United States v. McConney, 728 F.2d 1195, 1200 n. 5 (9th Cir.)  (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).   Whether the agents' reliance on the warrant was objectively reasonable is reviewed de novo.  United States v. Dozier, 844 F.2d 701, 707 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988).

B. Probable Cause

12
Appellants contend that the affidavit supporting the search warrant did not support a finding of probable cause because it contained misrepresentations and material omissions.   On appeal, the duty of a reviewing court is to ensure that the magistrate had a substantial basis for concluding that probable cause existed.  Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1982);  United States v. Grandstaff, 813 F.2d 1353, 1355 (9th Cir.), cert. denied, 484 U.S. 837, 108 S.Ct. 119, 98 L.Ed.2d 78 (1987).   In our review, we examine all circumstances set forth in the affidavit.   Gates, 462 U.S. at 238-239, 103 S.Ct. at 2332-2333.   In doubtful cases, the reviewing court should give preference to the validity of the warrant.   United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985).

13
The search warrant contained several statements regarding the odors the agents smelled while visiting storage units 10 and 11.   The affidavit states that when Deputy Myers opened the doors to his unit, both Investigator Bray and Myers detected a very strong odor "which they both associated with the illicit manufacture of methamphetamine."   Bray stated that this odor was strongest at the rear of Unit 10, which shares a wall with unit 39.   The affidavit also contained Bray's statement that the smell he detected in units 10 and 11 "is inconsistent with any activity other than the illicit manufacture of methamphetamine or the storage of chemicals used solely in the manufacture of methamphetamine."

14
During cross-examination at the Franks hearing, Leighton and Bray admitted that some of the statements in the unredacted affidavit were not true.   Leighton admitted that he knew from his training that methamphetamine itself has no odor.   Bray admitted that he was told in courses that methamphetamine manufactured under clinical conditions probably has no smell at all;  the government's chemist also stated that he knew methamphetamine has no smell.   Bray further conceded under questioning by the district court that the chemicals used in the manufacture of methamphetamine have other, legitimate purposes.   Bray stated, however, that he was familiar with the smell of methamphetamine labs, a smell generated by the use of various chemicals during the process of making the drug.

15
After the Franks hearing, the district court redacted some, but not all of the untruthful statements from the affidavit.   An examination of the affidavit shows that some offending statements remain.   Specifically, the court left in the statement that Bray "has often smelled methamphetamine itself" and that the odor coming from Unit 39 "is consistent with the smell of methamphetamine, and inconsistent with any other activity."   Since Bray and Leighton admitted that methamphetamine has no smell and that the chemicals could have been used for other activities, these statements are false and should have been redacted.

16
Without these offending statements, the affidavit contains a description of the storage locker, who owns it, and the following statements:  1) Bray and Myers detected a "very strong odor" with which Bray was familiar, 2) when Bray and Myers opened the door to Units 10 and 11 they "detected a strong odor which they both associated with the illicit manufacture of methamphetamine," and 3) that the odor was strongest at the rear of Unit No. 10, which is adjacent to Unit 39.   The government argues that this information supports a finding of probable cause because in addition to the chemicals, the methamphetamine manufacturing equipment stored in the locker--an Allen condenser, some plastic tubing and the cardboard boxes in the storage room--all released a smell associated with the manufacture of methamphetamine.   DEA chemist Davidson testified that the Allen condenser had been used before in the methamphetamine manufacturing process and emitted a strong odor.   He also testified that the plastic tubes had been used before and could emit odors, and that the cardboard boxes were saturated and odor-producing.   Moreover, Bray testified that the odor was strongest when he smelled the Allen condenser while executing the "sneak and peek" search warrant.

17
We agree with the government.   The presence of the odorous Allen condenser, the used tubes and saturated cardboard boxes sufficiently supports the affidavit's contention that the storage room emitted smells associated with the manufacture of methamphetamine.   We conclude, therefore, that the affidavit redacted of any misrepresentations provides a sufficient basis for probable cause to search.

C. Admissibility of the Evidence

18
Appellants allege that by failing to notify them of the search of the storage locker, the government violated Fed.R.Crim.P. 41(d).   We conclude that although appellants correctly identify a violation that would ordinarily warrant suppression, the evidence is admissible in this instance because the officers relied in good faith upon a warrant.

1. Violation of Rule 41(d)

19
We review de novo the question of whether a violation of Rule 41(d) requires suppression.  United States v. Freitas, 856 F.2d 1425, 1428 (9th Cir.1988) (Freitas II ).

20
Rule 41(d) requires that "[t]he officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for property taken or shall leave the copy and receipt at the place from which the property was taken."   A warrant which does not provide for notice of the search fails to comply with Rule 41(d).  United States v. Freitas, 800 F.2d 1451, 1455-56 (9th Cir.1986) (Freitas I).1

21
In this case, a magistrate approved the deletion of the notice provisions in the warrant which the agents executed on January 13, 1985.   Thereafter, little activity occurred until March 2, 1985, when someone took the boxes of chemicals stored in the locker to a suspected laboratory in another building.   On March 11, 1985, 57 days after the original warrant was executed, agents searched the second building, found a methamphetamine lab, and arrested several suspects.   The government did not serve appellants notice of the "sneak and peek" search until they were arrested.   This conduct is a clear violation of Rule 41(d).

22
Once a violation of Rule 41(d) is identified, the next inquiry is whether the violation is "fundamental" or "non-fundamental."   This inquiry is necessary to determine whether the evidence produced by the search must be suppressed.   Fundamental violations, ones which are unconstitutional under traditional Fourth Amendment standards, require automatic suppression of the evidence produced.  United States v. Luk, 859 F.2d 667, 671 (9th Cir.1988).   Non-fundamental violations--violations which do not arise to constitutional error--on the other hand, require suppression only where:  1) there was "prejudice" in the sense that the search might not have occurred or would not have been so abrasive if the rule had been followed or 2) there is evidence of intentional and deliberate disregard of a provision of the rule.  Id. (quoting United States v. Vasser, 648 F.2d 507, 510 (9th Cir.1980), cert. denied, 450 U.S. 928, 101 S.Ct. 1385, 67 L.Ed.2d 360 (1981));  see also United States v. Radlick, 581 F.2d 225, 228 (9th Cir.1978) (quoting United States v. Burke, 517 F.2d 377, 386-87 (2d Cir.1975)).   In this case, we find that the agents have committed a nonfundamental violation falling under the first prong.   Suppression ordinarily would be required because the appellants have suffered "prejudice" in that the "search might not have occurred or would not have been so abrasive" if the agents have followed Rule 41(d).2

23
At the Franks hearing, the district court heard testimony indicating that Leighton and Bray intended to delay indefinitely notifying the appellants of the search.   For example, Leighton testified that the government intended to notify appellants of the search only if and when "the investigation went nowhere" or appellants were arrested.   FBI agent White testified that they planned not to notify appellants for "an indeterminate period of time."   White said their objective was to "locate them at their lab ... however long that took ... provided, of course, we could justify or warrant our surveillance activities."   White testified that he and Leighton did not discuss a termination date in the event that no activity was observed at the storage units.

24
Clearly, the agents and the AUSA intended to delay notification for the duration of the investigation.   They undertook surveillance of the storage units in the hopes of gaining a lead to the methamphetamine lab.   The district court found that "[d]epending upon developments, [the investigation] could last indefinitely."   We conclude from the government's testimony that the search might not have occurred if they had been forced to give notice within seven days.   Appellants therefore suffered "prejudice" from the Rule 41(d) violation.   For this reason, the violation would ordinarily require suppression of the evidence.3

25
2. Good Faith Exception to the Exclusionary Rule

26
On remand, the district court also concluded that because an AUSA and a magistrate approved the "sneak and peek" warrant, even though it failed to meet the notification requirements, the evidence would not be suppressed because the search fell within the good faith exception to the exclusionary rule enunciated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).   We believe that we are constrained by Supreme Court and circuit precedent to uphold the district court's determination that this search does indeed fall within that exception.

27
In Leon, the Supreme Court listed four circumstances in which the good faith exception will not apply:  1) when the magistrate was misled by information in the affidavit the affiant knew or should have known was false, 2) when the magistrate has wholly abandoned her judicial role, 3) when the affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, and 4) when the warrant is so facially deficient--i.e., in failing to particularize the place to be searched or the things to be seized--that the executing officers cannot reasonably presume it to be valid.  Id. at 923, 104 S.Ct. at 3421.   Additionally, the Court has indicated that the good faith exception does not apply to cases where the magistrate had no business issuing the warrant.  Massachusetts v. Sheppard, 468 U.S. 981, 990, n. 7, 104 S.Ct. 3424, 3429, n. 7, 82 L.Ed.2d 737 (1984) (quoting Illinois v. Gates, 462 U.S. 213, 264, 103 S.Ct. 2317, 2346, 76 L.Ed.2d 527 (1983) (White, J., concurring in judgment)).

28
None of the Leon categories applies to this case.   There was no use of materially misleading information in the affidavit.   We find no evidence that the magistrate wholly abandoned her judicial role.   As discussed above, we find that there was probable cause to search, even with the improper statements redacted from the affidavit.   And as we have held before, failure to provide for notice does not necessarily render a warrant facially deficient.   See discussion below.

29
This case resembles the situation we considered in Freitas II.   In Freitas II, we held that the prosecutor's and the magistrate's approval of the illegal provisions of the warrant were sufficient to establish objectively reasonable behavior on the part of the officers conducting the search.  856 F.2d at 1431.   We likened that situation to the facts before the Supreme Court in Sheppard.   There, too, an officer prepared an affidavit which a district attorney reviewed and approved.   He then presented it to a judge who decided that probable cause existed and issued a warrant.   The judge made a clerical error in failing to delete the words "controlled substance" from the search warrant.   The Court held that it was the judge, not the police officers, who made the critical mistake.  468 U.S. at 990, 104 S.Ct. at 3428.   The Court reasoned that the police conduct was objectively reasonable in that the police "took every step that could reasonably be expected of them."   Id. at 989, 104 S.Ct. at 3428.   The Supreme Court explained:

30
An error of constitutional dimensions may have been committed with respect to the issuance of the warrant, but it was the judge, not the police officers, who made the critical mistake.  "[T]he exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of magistrates and judges."  Illinois v. Gates, 464  U.S. 213, 263 [103 S.Ct. 2317, 2346, 76 L.Ed.2d 527] (1983) (White, J., concurring in judgment).

31
Id. at 990, 104 S.Ct. at 3429 (parallel citations omitted).   We therefore concluded in Freitas II:

32
Like the police detective in Sheppard, the agents involved in the instant case consulted and secured the approval of a government attorney.   They then fully informed the magistrate of the contents of the warrant, including the controversial deletion of the notice provisions, and obtained his approval as well.   These acts were sufficient to establish objectively reasonable behavior under Sheppard.

33
856 F.2d at 1431.   Under Sheppard, after consulting both a government attorney and a neutral detached magistrate, we held that "the agents were not required to disbelieve these experts."  Id. at 1432.   This precedent constrains us to hold that the good faith exception as developed in Leon permits the evidence generated from the search in this case to be introduced at trial.4

34
Finally, we cannot say that the failure to provide for notice is a deficiency so fundamental that the magistrate should never have issued the warrant.   At the time the warrant was executed, the rule that notice of searches should be given within seven days, absent a strong showing of necessity, had not yet been announced.   See Freitas I, 800 F.2d at 1456.   Although Rule 41(d) would seem to imply a reasonable time period, we cannot say that before Freitas I it was clear that a magistrate had no business issuing a warrant which failed to provide for notice within seven days.   However, magistrates and other law enforcement officials are charged with the knowledge that warrants issued after Freitas I should not issue without a provision for seven-day notice absent a strong showing of necessity.   We wish to make it clear that deliberate disregard of this rule will indicate to reviewing courts that the warrant should never have been issued, and will render inapplicable the good faith exception.   In this instance, however, we affirm the district court's determination that the evidence was admissible under the good faith exception to the exclusionary rule.

D. The Informant

35
In United States v. Johns, 851 F.2d 1131, 1135 (9th Cir.1988), this court remanded this case to the district court to determine whether the good faith exception would excuse the Fourth Amendment and Rule 41(d) violations.   In particular, we were concerned with the alleged failure of the government to disclose to the magistrate that an informant allegedly provided much of the information contained in the affidavit submitted with the warrant application.   On remand, the government indicated that disclosing the informant's identity would jeopardize the informant's safety and compromise ongoing investigations.   The district court conducted an in camera hearing which confirmed the government's position on the informant's safety.   At the hearing, the informant advised the court that in the company of investigating officers, he visited storage unit 39 in November or December of 1985.   He stated that the odor associated with the manufacture of methamphetamine was readily discernable.

36
In United States v. Fixen, 780 F.2d 1434, 1439 (9th Cir.1986), this court encouraged the use of an in camera hearing where the government opposed disclosure of the informant's identity for safety reasons.   The procedure provides a balance between the competing interests of the government and the accused in a situation where the " 'question is whether a law enforcement officer has lied.' "  Id. (quoting United States v. Moore, 522 F.2d 1068, 1073 (9th Cir.1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 775, 46 L.Ed.2d 637 (1976)).   The judge's inquiries will both protect the secrecy of the government's investigations and will perhaps save the defendant from potentially serious police misconduct.  Id. at 1439-40.

37
Appellants complain of their exclusion from the hearing.   They contend that their exclusion rendered the hearing insufficient under Franks and that they should have been permitted to cross-examine the witness.   We disagree.   We find that the government made an adequate showing of necessity under Fixen to support the use of an in camera hearing.   Appellants' argument that error was committed by excluding them fails.

38
Appellants also contend that because the government lied regarding the existence of an informant, its deception undermines its good faith reliance on the search warrant.   The district court found that the government did lie about the informant's existence;  the government disputes that conclusion.   However, as we have already determined that probable cause existed based on the redacted affidavit, the government's truthfulness is irrelevant because it does not alter either the good faith reliance of the officers or the existence of probable cause.

39
The government need not include all of the information in its possession to obtain a search warrant.   An affidavit need only show facts adequate to support a finding of probable cause.  United States v. Ellison, 793 F.2d 942, 947 (8th Cir.), cert. denied, 479 U.S. 937, 107 S.Ct. 415, 93 L.Ed.2d 366 (1986).   The omission of facts rises to the level of misrepresentation only if the omitted facts "cast doubt on the existence of probable cause."  Id. (quoting United States v. Dennis, 625 F.2d 782, 791 (8th Cir.1980)).

40
As the district court pointed out, the omitted information does not detract from probable cause, but adds to it.   If the informant were proved reliable, his statements would lend further support to a probable cause finding.   The omission of information that might have strengthened a finding of probable cause does not justify a Franks hearing.  United States v. Wulferdinger, 782 F.2d 1473, 1477 (9th Cir.1986).   The district court correctly concluded that the government did not undermine its good faith reliance on the warrant or lessen probable cause by choosing not to disclose the informant's existence and the information he provided.

IV. CONCLUSION

41
By failing to give notice of the search, the government committed a "nonfundamental" violation of Fed.R.Crim.P. 41(d).   Because the violation caused the appellants prejudice, we would ordinarily require suppression of the evidence.   However, we find that the search falls within the good faith exception to the exclusionary rule.   The district court's decision to admit the evidence is AFFIRMED.   The district court's exclusion of appellants from the in camera hearing concerning the informant and its finding that the government's failure to disclose the informant's existence did not undermine the finding of probable cause is also AFFIRMED.

1
 Although no property was "removed" from the storage locker, photographic images were "seized" and information was gathered about its contents.   We have already held that the seizure of intangible property falls within the ambit of Rule 41(d).   See Freitas I, 800 F.2d at 1455

2
 Having so found, we need not decide whether a clear constitutional violation has occurred

3
 Appellants also allege a nonfundamental Rule 41(d) violation on the ground that the surreptious search somehow affected the completion of their crime.  Freitas II, 856 F.2d at 1433.   They argue that had they known of the government surveillance, they would not have continued to buy chemicals and transport them to and from the storage units.   Having already found a violation of Rule 41(d) potentially warranting suppression, we do not resolve this issue

4
 Appellants also argue that the "sneak and peek" search violated the Fourth Amendment independent of the Rule 41(d) violation.   They argue that the Fourth Amendment requires that officers provide notice of searches within a reasonable, but short, time after the surreptitious entry.   See Freitas I, 800 F.2d at 1456.   Appellants are correct.   However, as in Freitas II, the agents' consultation with the government attorney and the magistrate's approval of the warrant in this case provides a sufficient basis from which the agents could objectively conclude that the search was justifiable.  Freitas II, 856 F.2d at 1431.   As a result, the Fourth Amendment violation in this instance, like the Rule 41(d) violation, does not require the suppression of the evidence because the agents relied upon the warrant in good faith


760 F.2d 1003
56 A.F.T.R.2d 85-5042, 85-1 USTC  P 9401
Lloyd R. OLSON, Plaintiff/Appellant,v.UNITED STATES of America, Defendant/Appellee.
No. 84-4030.
United States Court of Appeals,Ninth Circuit.
Submitted April 25, 1985*.Decided May 16, 1985.

Lloyd R. Olson, in pro. per.
Gary R. Allen, Martha Brissette, Washington, D.C., for defendant/appellee.
Appeal from the United States District Court for the District of Alaska.
Before KILKENNY, FERGUSON and WIGGINS, Circuit Judges.
PER CURIAM:

1
Lloyd R. Olson filed an unsigned Form 1040 (individual income tax return) for 1982 on which he listed his wages as zero and cautioned that it was not a return.  Attached to the Form 1040 was a W-2 form showing that Olson had been paid $53,417.69 in wages in 1982 (which Olson had marked "Incorrect"), a Schedule C profit or loss statement in which Olson offset the wages he received by a greater amount of "cost of labor" and other deductions purportedly incurred in earning his wages, and a letter stating that he had studied the tax laws and determined that he owed no taxes because he had not obtained any privilege from a governmental agency in 1982.  He asserted that he filed the Form 1040 only to obtain a refund and not with the intent to file a return.

2
The Internal Revenue Service ("INS") attempted to have Olson sign the Form 1040 and complete a proper return.  Olson refused.  The IRS then assessed a $500 civil penalty against Olson pursuant to section 6702 of Title 26 of the United States Code.  Olson paid fifteen percent of the assessment ($75) and demanded abatement of the penalty, but the IRS disallowed his refund claim.

3
Olson then filed a complaint for a refund in the district court.  The government moved for judgment on the pleadings and the district court dismissed the action with prejudice.  Olson appeals to this court.

4
Section 6702 authorizes the imposition of a $500 civil penalty on any individual who, from a frivolous position or a desire (which appears on the face of the purported return) to delay or impede the administration of the tax laws, files what purports to be a tax return which either does not contain sufficient information to judge the substantial correctness of the self-assessment or contains information that indicates on its face that the self-assessment is substantially incorrect.  Olson contends that he did not file "what purports to be a [tax] return" and that his filing was not frivolous.  These arguments are without merit.

5
Although Olson wrote the words "not a return" on the Form 1040 he filed, he acknowledges that he filed the form to obtain a refund of the taxes withheld from his wages in 1982.  Because a taxpayer may not obtain a refund without first filing a return, 26 C.F.R. Sec. 301.6402-3(a)(1), the form filed by Olson should be construed to be a "purported" return.   Davis v. United States, 742 F.2d 171, 173 (5th Cir.1984);  Holker v. United States, 737 F.2d 751, 752 (8th Cir.1984).

6
The form also contained information that on its face showed that Olson's self-assessment was substantially incorrect.  Olson listed his wages, salaries, and tips as zero, yet his W-2 form indicated that he had received in excess of $50,000 in wages.  He made no attempt to explain this discrepancy beyond writing the word "incorrect" on the W-2 form.  Thus, the IRS also could not judge the substantial correctness of the return.

7
Further, Olson's attempts to escape tax by deducting his wages as "cost of labor" and by claiming that he had obtained no privilege from a governmental agency illustrate the frivolous nature of his position.  This court has repeatedly rejected the argument that wages are not income as frivolous, see, e.g., Gattuso v. Pecorella, 733 F.2d 709, 710 (9th Cir.1984);  United States v. Romero, 640 F.2d 1014, 1016 (9th Cir.1981), and has also rejected the idea that a person is liable for tax only if he benefits from a governmental privilege.   See United States v. Buras, 633 F.2d 1356, 1361 (9th Cir.1980).  Therefore, the district court properly found that Olson was liable under section 6702 for filing a frivolous tax return.   See Davis v. United States, 742 F.2d 171 (5th Cir.1984);  Holker v. United States, 737 F.2d 751 (8th Cir.1984).

8
The remaining issues are easily resolved and likewise meritless.  The IRS clearly had jurisdiction to assess the penalty against Olson, see U.S. Const. art. I, Sec. 8;  26 U.S.C. Sec. 6201.  The district court properly denied Olson a jury trial because there were no material facts in dispute but only issues of law.   See Ex parte Peterson, 253 U.S. 300, 310, 40 S.Ct. 543, 546, 64 L.Ed. 919 (1920);  Davis v. United States, 742 F.2d at 173;  Holker v. United States, 737 F.2d at 752.

9
The judgment of the district court is therefore affirmed.  Because Olson has raised totally meritless arguments, we characterize this appeal as frivolous.  It is within our discretion to impose double costs and attorney fees for such frivolous appeals.  Fed.R.App.P. 38;  Hatch v. Reliance Insurance Co., 758 F.2d 409, 416 (9th Cir.1985);  Davis v. United States, 742 F.2d at 173.  We therefore impose attorney fees in the sum of $1,000 and double costs on Olson.

10
AFFIRMED.

*
 This panel unanimously agrees that this case is appropriate for submission without oral argument


      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                        NO. 03-14-00148-CV

                                 Mehmet Turan Erkan, Appellant

                                                   v.

                                  Habibe Nalan Erkan, Appellee

     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
     NO. D-1-FM-12-002773, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

                             MEMORANDUM OPINION

                Mehmet Turan Erkan sued his wife Habibe Nalan Erkan for divorce in 2012.1 The

Erkans had two children, a girl who at the time of trial was eight years old and a boy who was six

years old. Following a bench trial at which both parties proceeded pro se, the trial court signed

a final decree of divorce.2 The decree granted the divorce and stated, “The parties are ordered to

follow the standard possession and access order, except that Mehmet Turan Erkan must obtain and

maintain a home with a bedroom for each child before the children may visit overnight.” The decree

also awarded Habibe any interest that Mehmet had in two properties located in Turkey. Mehmet

       1
          Because the parties share a last name, we will refer to them by their first names for the sake
of clarity.
       2
          Specifically, the trial court signed the final decree of divorce in December 2013 and later
signed an amended final decree of divorce in March 2014. The decrees do not differ from one
another in any way that is of consequence for this appeal, and all further references to the decree in
this opinion are to the amended decree.
now appeals from the trial court’s decree, contending in three issues that the trial court abused its

discretion by conditioning the children’s overnight visits on his maintaining separate bedrooms for

the children, that the trial court abused its discretion when it admitted certain emails relating to the

Turkish properties, and that the trial court lacked jurisdiction to award the Turkish properties to

Habibe.3 We will modify the decree to delete the conditioning of the children’s overnight visits on

Mehmet maintaining separate bedrooms for the children and will affirm the decree as modified.

                                      STANDARD OF REVIEW

                 We review the trial court’s decisions concerning division of the marital estate and

child custody, possession, and visitation for an abuse of discretion. Iliff v. Iliff, 339 S.W.3d 126, 133

(Tex. App.—Austin 2009), aff’d, 339 S.W.3d 74 (Tex. 2011). “Under an abuse of discretion standard,

legal and factual sufficiency challenges to the evidence are not independent grounds of error, but

are relevant factors in assessing whether the trial court abused its discretion.” Id. at 134. We thus

engage in a two-pronged inquiry, first applying a traditional sufficiency review to determine whether

the trial court had sufficient information, and then determining whether the trial court erred in its

application of discretion. See id.

        3
            Habibe has not filed a brief in this case.

                                                    2
                                           DISCUSSION

Overnight possession

               In his first issue, Mehmet contends that the trial court abused its discretion by

deviating from a standard possession order and ordering that Mehmet’s children could stay with

him overnight only if he provided a separate room for each child.

               The best interest of the child is the “primary consideration” in determinations of

possession of and access to the child. See Tex. Fam. Code § 153.002. In addition, it is the public

policy of this State to “assure that children will have frequent and continuing contact with parents

who have shown the ability to act in the best interest of the child” and to “encourage parents to share

in the rights and duties of raising their child after the parents have separated or dissolved their

marriage.” Id. § 153.001(a)(1), (3). There is a rebuttable presumption that the standard possession

order provided by the Texas Family Code “provides reasonable minimum possession of a child for

a parent named as a possessory conservator or joint managing conservator” and “is in the best

interest of the child.” Id. § 153.252. The trial court may deviate from the standard possession order

“if the work schedule or other special circumstances of the managing conservator, the possessory

conservator, or the child, or the year-round school schedule of the child, make the standard order

unworkable or inappropriate,” but if the court does so, it “shall render an order that grants periods

of possession of the child as similar as possible to those provided by the standard possession order.”

Id. § 153.253. When deviating from the standard possession order, the trial court “shall be guided

by the guidelines established by the standard possession order and may consider: (1) the age,

developmental status, circumstances, needs, and best interest of the child; (2) the circumstances of

                                                  3
the managing conservator and of the parent named as a possessory conservator; and (3) any other

relevant factor.” Id. § 153.256.

               Here, no findings of fact or conclusions of law by the trial court appear in the record,

and we may not consider oral comments made by the court at a bench trial to constitute findings

of fact or conclusions of law. See In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984) (per curiam).

Therefore, we infer that the trial court made all the necessary findings to support its order and we

consider only the evidence most favorable to the trial court’s order and uphold that order on any

legal theory that the evidence supports. See In re T.J.S., 71 S.W.3d 452, 459 (Tex. App.—Waco

2002, pet. denied).

               Mehmet testified that he was living with a roommate in a two-bedroom apartment.

Mehmet explained to the trial court that if the children were to visit him overnight, he would sleep

in the living room and allow the two children to share a bedroom. Mehmet further testified that he

was planning to rent his own two-bedroom apartment soon and allow each child to sleep in a room

while he slept in the living room. He also testified that he usually worked until 11 p.m. but that he

intended to get another job with better hours.

               Habibe testified that she was concerned about the children staying overnight with

Mehmet because Mehmet had pornography in his apartment that the children might access. She

also testified that Mehmet “doesn’t have a regular time when he goes to sleep,” that the children

“feel uneasy” and “don’t feel good” after they return from staying with Mehmet, and that the

Erkans’ son told her that he does not brush his teeth when staying with Mehmet.

               Based on the record before us, we conclude that there is insufficient evidence to

support the trial court’s decision to condition Mehmet’s overnight visits with his children on

                                                  4
his maintaining a separate room for each child. There is no evidence in the record suggesting that

it would be harmful for the children to share a room at their ages. Nor is there any evidence

explaining how the children having their own rooms would address the problems of pornography,

poor hygiene, or erratic schedules alleged by Habibe. In the absence of a reasonable explanation

supported by evidence, the trial court abused its discretion by deviating from the standard possession

order and placing a restriction on Mehmet’s access to his children that was not placed upon Habibe.

                  Accordingly, we sustain Mehmet’s first issue and will delete the portion of the

trial court’s decree conditioning Mehmet’s overnight visits on his maintaining a separate room

for each child.

Turkish properties

                  In his second issue, Mehmet contends that the trial court abused its discretion by

admitting into evidence emails allegedly received by Habibe that assert that Mehmet owned

several properties in Turkey. It was on the basis of these emails that the trial court awarded two of

the properties to Habibe.

                  When Habibe offered several documents, including the emails, Mehmet stated,

“The documents that my wife provided are not real.” On appeal, Mehmet asks us to construe this

statement as a hearsay objection. Even considering that Mehmet was proceeding without an attorney,

we cannot construe his statement as an objection to hearsay. See In re N.E.B., 251 S.W.3d 211,

211–12 (Tex. App.—Dallas 2008, no pet.) (“We construe liberally pro se pleadings and briefs;

however, we hold pro se litigants to the same standards as licensed attorneys and require them

to comply with applicable laws and rules of procedure.”) (citing Mansfied State Bank v. Cohn,

                                                  5
573 S.W.2d 181, 184–85 (Tex. 1978)). It is clear that Mehmet was alleging that the documents were

not genuine, not objecting to hearsay. The trial court responded to Mehmet’s objection by stating,

“Okay. So that’s claiming they’re not authentic.” Moreover, when the trial court asked him, “So

do you think that somebody made up this document or that there’s an explanation for it?”, Mehmet

responded, “Just the last [document] is correct and the other ones are made up.”

               Mehmet did not object to the emails from Turkey on the ground that they were

hearsay, and he has therefore waived that objection. See Smith v. East, 411 S.W.3d 519, 530 (Tex.

App.—Austin 2013, pet. denied) (“Complaints and arguments on appeal must correspond with

the complaint made at the trial court level.”); A.G.E., Inc. v. Buford, 105 S.W.3d 667, 678 (Tex.

App.—Austin 2003, pet. denied) (“Where the objection at trial is not the same as the complaint

presented on appeal, the complaint is not preserved for appellate review.”). Accordingly, we overrule

Mehmet’s second issue.

               In his third issue, Mehmet contends that the trial court “lacked jurisdiction to

convey property located outside of Texas to [Habibe].” Whether the trial court lacked subject-matter

jurisdiction to award the Turkish properties to Habibe is a question of law we review de novo. See

Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (“Whether a court

has subject matter jurisdiction is a question of law.”).

               “Texas courts may not adjudicate title to realty in another state or country; they do

not have subject matter jurisdiction over property outside the state.” Trutec Oil & Gas, Inc. v.

Western Atlas Int’l, Inc., 194 S.W.3d 580, 583 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

“Texas courts may, however, compel a party over whom it has jurisdiction to execute a conveyance

                                                  6
of a real property interest situated in another state.” Kelly Oil Co., Inc. v. Svetlik, 975 S.W.2d 762,

764 (Tex. App.—Corpus Christi 1998, pet. denied); see Miller v. Miller, 715 S.W.2d 786, 788 (Tex.

App.—Austin 1986, writ ref’d n.r.e.) (Texas courts lack jurisdiction to adjudicate title to land in

another state but have power to compel party to execute conveyance of real property situated in

another state). The key jurisdictional question is “whether the cause before the Court involves a

naked question of title.” Kelly Oil, 975 S.W.2d at 764 (quotation marks omitted).

               Here, the trial court ordered Mehmet to convey any interest he may have in the two

Turkish properties to Habibe as part of the final decree of divorce. Texas courts have jurisdiction

to order a party to convey real estate located outside of Texas as part of a divorce decree. See

Okoh-Brown v. Brown, No. 01-13-00096-CV, 2014 WL 298595, at *1 (Tex. App.—Houston [1st

Dist.] Jan. 28, 2014, no pet.) (mem. op.) (“As part of a divorce decree, [a] trial court may require

parties over whom it has in personam jurisdiction to execute a conveyance of real estate located in

another state.”) (quotation marks omitted) (collecting cases); see also Dankowski v. Dankowski,

922 S.W.2d 298, 303 (Tex. App.—Fort Worth 1996, writ denied) (holding trial court had jurisdiction

to order party to convey Florida property as part of community-property division). We conclude that

the trial court had jurisdiction to order Mehmet to convey his interest in the Turkish properties to

Habibe, and we therefore overrule his third issue.4

       4
         Although we do not address whether Mehmet waived any objections he may have had to
the award of the Turkish properties to Habibe, we note that when the trial court explained its ruling,
Mehmet acquiesced, stating, “They do not exist, I don’t mind.”

                                                  7
                                        CONCLUSION

               Having sustained Mehmet’s first issue but having overruled his second and third

issues, we modify the amended final decree of divorce to delete the requirement “that Mehmet Turan

Erkan must obtain and maintain a home with a bedroom for each child before the children may visit

overnight” and affirm the decree as modified. See Tex. R. App. P. 43.2(b).

                                             __________________________________________

                                             Scott K. Field, Justice

Before Justices Puryear, Pemberton, and Field

Modified and, as Modified, Affirmed

Filed: December 8, 2015

                                                8


TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-04-00577-CR

Tommy Johns, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. 3031399, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

M E M O R A N D U M   O P I N I O N

A jury found appellant Tommy Johns guilty of aggravated sexual assault.  See Tex.
Pen. Code Ann. § 22.021 (West Supp. 2004-05).  The district court assessed punishment, enhanced
by a previous felony conviction, at imprisonment for forty years.
Appellant’s court-appointed attorney filed a brief concluding that the appeal is
frivolous and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738
(1967), by presenting a professional evaluation of the record demonstrating why there are no
arguable grounds to be advanced.  See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573
S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974);
Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex.
Crim. App. 1969).  Appellant received a copy of counsel’s brief and was advised of his right to
examine the appellate record and to file a pro se brief.  No pro se brief has been filed.
We have reviewed the record and counsel’s brief and agree that the appeal is frivolous
and without merit.  We find nothing in the record that might arguably support the appeal.  Counsel’s
motion to withdraw is granted.
The judgment of conviction is affirmed.

                                                __________________________________________
                                                Bob Pemberton, Justice
Before Chief Justice Law, Justices B. A. Smith and Pemberton
Affirmed
Filed:   June 16, 2005
Do Not Publish


787 F.2d 645
252 U.S.App.D.C. 89
BEAUFORT COUNTY BROADCASTING COMPANY, Appellant,v.FEDERAL COMMUNICATIONS COMMISSION, Appellee,Barnacle Broadcasting Ltd., Intervenor.Appeal from an Order of the Federal Communications Commission.BEAUFORT COUNTY BROADCASTING COMPANY, Petitioner,v.FEDERAL COMMUNICATIONS COMMISSION and United States ofAmerica, Respondents,Barnacle Broadcasting Ltd., Denton Channel Two Foundation,Inc., Wafar Communications, Inc., PublicCommunications Foundation For NorthTexas, Intervenors.
Nos. 84-1265, 84-1384.
United States Court of Appeals, District of Columbia Circuit.
Argued May 28, 1985.Decided April 11, 1986.

Petition for Review of an Order of the Federal Communications commission.
Lawrence J. Bernard, Jr., Washington, D.C., for appellant in No. 84-1265 and petitioner in No. 84-1384.
C. Grey Pash, Jr., Counsel, F.C.C., with whom Jack D. Smith, Gen. Counsel and Daniel M. Armstrong, Associate Gen. Counsel, Washington, D.C., were on brief, for appellee in No. 84-1265 and respondents in No. 84-1384.  Bruce E. Fein, Washington, D.C., entered an appearance for F.C.C. in Nos. 84-1265 and 84-1384.  Edward T. Hand and Robert B. Nicholson, Attys., Dept. of Justice, Washington, D.C., entered appearances for appellee, Department of Justice, in No. 84-1384.
Frank J. Martin, Jr., Washington, D.C., for intervenor Barnacle Broadcasting, Ltd. in Nos. 84-1265 and 84-1384.
James J. Freeman and Jack N. Goodman, Washington, D.C., were on brief, for intervenor Public Communication Foundation for North Texas in No. 84-1384.
Joseph F. Hennessey, Washington, D.C., entered an appearance for intervenor Denton Channel Two Foundation, Inc. in No. 84-1384.
William M. Barnard and James J. Freeman, Washington, D.C., entered appearances for intervenor Wafar Communications, Inc. in No. 84-1384.
Before GINSBURG and BORK, Circuit Judges, and GREENE,* United States District Judge.
Opinion for the Court filed by Circuit Judge BORK.
BORK, Circuit Judge:

1
Petitioner Beaufort County Broadcasting Company challenges a decision of the Federal Communications Commission denying it permission to construct a new FM broadcast station in Beaufort, South Carolina.  The Commission granted the mutually exclusive application of Barnacle Broadcasting Company, Ltd.  ("Barnacle") to provide first transmission service to Port Royal, South Carolina.  Beaufort and Port Royal are adjacent communities, the former having a population of approximately 8600 people and three other local stations, the latter 3000 residents and no other stations.  The FCC granted a determinative licensing preference to the Port Royal applicant in order to fulfill the mandate of the Communications Act of 1934 ("the Act") "to provide a fair, efficient, and equitable distribution of radio service" throughout the nation.  See 47 U.S.C. Sec. 307(b) (1982).

2
Petitioner claims that the Commission acted arbitrarily in refusing to grant an evidentiary hearing on whether Barnacle would provide genuine first transmission service to Port Royal, or, failing that, to allow Beaufort County to amend its application to disignate the preferred community as its proposed community of license.  Beaufort County Broadcasting also asserts that the Commission erred in granting a determinative section 307(b) preference to Barnacle insofar as both applicants proposed to provide high-power regional service that included the two adjacent proposed communities of license.  We affirm the FCC's decision.

I.

3
On September 18, 1979, Beaufort County Broadcasting applied for Channel 285A, a Class A low-power broadcasting license assigned within the FM Table of Assignments to Beaufort, South Carolina.1   Barnacle, on May 19, 1980, made similar application, though it designated Port Royal as its proposed community of license pursuant to a now-defunct Commission rule allowing an applicant to locate a Class A FM station within ten miles and a higher power Class B or C FM station within fifteen miles of a community listed within the Table of Assignments.  See former 47 C.F.R. Sec. 73.203(b) (1982), deleted in The Suburban Community Policy, the Berwick Doctrine and the De Facto Reallocation Policy, 93 F.C.C.2d 436 (1983) ("Suburban Community Policy/Berwick Reconsidered").  On February 11, 1981, after a separate rulemaking, the FCC amended its Table of Assignments and substituted Channel 259, a higher power Class C FM station, for the Class A station that had previously been assigned to the city of Beaufort, and allowed Beaufort County Broadcasting and Barnacle to amend their applications to reflect this change.  See Amendment of Section 73.202(b), Table of Assignments, FM Broadcast Stations (Beaufort and Ridgeland, South Carolina ), 57 Rad.Reg.2d (P & F) 1559 (1981).  The FCC, according to its practice at that time, conducted a hearing to determine which of the two mutually exclusive applicants' proposed communities had the greater need for a station.  See Beaufort County Broadcasting Co., 94 F.C.C.2d 572, 573 (Rev.Bd.1983).

4
On September 29, 1981, Beaufort County Broadcasting moved to add a so-called Berwick issue to the hearing, alleging that Barnacle did not realistically propose to serve Port Royal and should not, therefore, receive a dispositive section 307(b) preference for providing first transmission service to that community.  See Joint Appendix ("J.A.") at 142;  see also Berwick Broadcasting Corp., 20 F.C.C.2d 393 (1969), modifying 12 F.C.C.2d 8 (Rev.Bd.1968), on remand, P.A.L. Broadcasters, Inc., 40 F.C.C.2d 546 (Rev.Bd.1973) (holding that if one applicant raised a prima facie case that a mutually exclusive applicant did not realistically propose to serve the preferred community specified in the latter's application, the latter bore the burden of showing that the proposed community has distinct and unmet needs that the proposed station would serve), overruled, Suburban Community Policy/Berwick Reconsidered, 93 F.C.C.2d 436, 449 (1983).  Beaufort County Broadcasting relied in its motion upon three facts:  (1) that Barnacle had originally planned to designate Beaufort as its proposed city of license and had fully prepared an application with that in mind;  (2) that after Barnacle's last minute change of proposed community, it nonetheless submitted the identical programming proposal that it had prepared for Beaufort;  and (3) that Beaufort and Port Royal enjoyed a close relationship that raised doubt as to the legitimacy of a section 307(b) distinction between the two.  See J.A. at 144, 153-54.

5
The Administrative Law Judge ("ALJ") refused to add a Berwick issue to the proceeding.  Relying on Bie Broadcasting Co., 81 F.C.C.2d 1 (Rev.Bd.1980), which held that an applicant had to make "a stringent threshold showing" and "raise a substantial question" whether the "applicant [would] not realistically serve his community," id. at 9, the ALJ found Beaufort County Broadcasting's assertions as to Barnacle's true intention in designating Port Royal to be too "speculative" to warrant the addition of a Berwick issue.  J.A. at 284.

6
On December 21, 1981, Beaufort County Broadcasting made a second motion for the addition of a Berwick issue, based on evidence that the designation of Port Royal as the proposed community had been made on the advice of an attorney, following his analysis of section 307(b), and that his recommendation had been immediately accepted by Barnacle's management without any investigation into Port Royal itself.  See J.A. at 288-89.  The ALJ again rejected the petitioner's motion, noting that, in addition to the reasons stated in his earlier ruling on this question, the mere fact that Barnacle might have acted out of a desire to obtain a section 307(b) preference would not provide a basis for the addition of a Berwick issue.  See J.A. at 303.

7
Some five months after the disposition of the second Berwick motion, in December, 1982, the ALJ granted Barnacle the disputed license for a Class C FM station.  See Beaufort County Broadcasting Co., 94 F.C.C.2d 578 (ALJ 1982).  The ALJ noted that Beaufort and Port Royal have "identical primary aural broadcast services," and thus neither has a "greater reception service need" to weigh in the section 307(b) calculus.  Id. at 616.  As for transmission needs, however, the ALJ found that Port Royal's need for a first transmission service outweighed Beaufort's need for a fourth, and that Port Royal, therefore, constituted a "preferred" community for section 307(b) purposes.  Id. at 617.  The ALJ also rejected an argument that the broad coverage of the proposed station should negate any section 307(b) advantage enjoyed by Port Royal over adjoining communities within the range of the signal.  Id.  Finding the section 307(b) issue to be "dispositive," therefore, the ALJ awarded the contested Class C FM license to Barnacle.  Id. at 617-18.

8
Beaufort County Broadcasting sought review of the ALJ's decision before the Review Board of the FCC, asking, among other things, for review of the ALJ's refusal to add Berwick issues to the proceedings.  See J.A. at 409-18.  In the interval between the ALJ's decision and the Review Board's decision, the Commission adopted Suburban Community Policy/Berwick Reconsidered, 93 F.C.C.2d 436 (1983).  The Commission there concluded that the Berwick doctrine and related section 307(b) mechanisms imposed procedural costs that disfavored small community applicants relative to urban rivals with superior financial resources, thus frustrating section 307(b)'s goal of broad dispersion of transmission facilities.    Id. at 451.  The Commission concluded, moreover, that these costly procedures were unnecessary because the FCC could simply refuse to renew a license for an applicant who failed to provide genuine transmission service to the preferred locale in order to serve a broader market.  Id.  The Commission in that docket, therefore, eliminated the Berwick doctrine and related procedures beginning with all proceedings currently pending before the FCC.    Id. at 457.

9
Because of this policy change, Beaufort County Broadcasting filed a petition for leave to amend its application to designate Port Royal as its proposed community of license.  See J.A. at 468-81.  Beaufort County Broadcasting argued that the Commission should, in adherence to its longstanding policy, treat the "adoption of new policies affecting the rights of applicants in pending hearing cases ... as an equitable reason for permitting applicants to amend their applications without further examination."    Id. at 473.  Because the elimination of Berwick foreclosed its ability to challenge the bona fides of Barnacle's proposal to provide first transmission service to Port Royal, Beaufort County Broadcasting contended, this change in policy produced the necessary "substantial impact on Beaufort County Broadcasting's rights."    Id. at 472.

10
The Review Board of the FCC rejected petitioner's objections to the ALJ's refusal to add a Berwick issue and also denied petitioner's motion for leave to amend its application.  See Beaufort County Broadcasting Co., 94 F.C.C.2d 572 (Rev.Bd.1983).  The Review Board noted that Beaufort County Broadcasting had conceded that its challenge to the ALJ's failure to add a Berwick issue had become moot because of the Suburban Community Policy/Berwick Reconsidered decision.    Id. at 574.  The Board nevertheless went on to consider the AlJ's refusal to add a Berwick question for hearing, recognizing the interdependence of that issue and the issue of the desired amendment of Beaufort County Broadcasting's application.    Id. at 575.  Holding that the motion to add a Berwick issue had twice properly been rejected, the Board concluded that elimination of the Berwick doctrine did not have "substantial impact" on Beaufort County Broadcasting's rights and that amendment of the application was thus inappropriate.  See id.

11
Petitioner also contended that a proposal for a high-power regional station that would serve two adjacent proposed communities of license should not lead to the grant of a section 307(b) preference to one of those communities.  This argument proceeded from Huntington Broadcasting Co. v. FCC, 192 F.2d 33 (D.C.Cir.1951), which held that where a suburban applicant proposes a high-powered frequency covering a central city, that applicant should have no determinative section 307(b) advantage over other applicants in the urban area.  See id.  Huntington's premise is that where integrally related communities constitute a single metropolitan transmission service area, individual communities' needs should be presumed satisfied by the aggregate of stations in that area.    See Huntington Broadcasting Co., 14 F.C.C. 563, 584 (1950).  The contest between Beaufort County Broadcasting and Barnacle, however, did not involve a central city and a suburb.  The Review Board refused to apply the Huntington doctrine to competing small communities "without substantial evidence ... that Port Royal's need for a first local transmission facility is being met by stations located in other communities."    94 F.C.C.2d at 576.  The Review Board thus upheld the ALJ's grant of a determinative section 307(b) preference and license to Barnacle.  Petitioner then unsuccessfully sought both reconsideration before the Review Board, see J.A. at 518, and review before the full Commission.  See id. at 531.  Petitioner renews before us substantially the arguments made before the Commission.

II.

12
Beaufort County Broadcasting's appeal presents two issues traceable to the Commission's Berwick doctrine.2   First, petitioner argues that, prior to the abolition of Berwick, it had earned the right to an evidentiary hearing because "substantial questions had been raised concerning the intent of Barnacle to provide a local service to Port Royal, rather than a regional service to ... the surrounding areas," Brief for Beaufort County Broadcasting (No. 84-1265) at 56, and that the FCC's retroactive elimination of Berwick arbitrarily deprived it of that right.  The second, closely related, Berwick argument is that the FCC erred in refusing to allow Beaufort County Broadcasting to amend its application to designate Port Royal as its proposed community of license because the elimination of Berwick issues in pending proceedings under Suburban Community Policy/Berwick Reconsidered had a substantial and prejudicial impact on its application.  See Brief for Beaufort County Broadcasting (No. 84-1265) at 61-63.  We dispose of both claims on the grounds that the ALJ correctly held, and the Review Board affirmed, that Beaufort County Broadcasting was never entitled to a Berwick issue.

13
Berwick stated that if "significant allegations" were raised indicating "a substantial doubt ... as to whether or not the proposal would provide a realistic transmission service for its specified station location," then the Commission was to conduct an evidentiary hearing in which the applicant seeking the section 307(b) preference had to prove that it would realistically serve its proposed locale.  See 20 F.C.C.2d at 396.  If the applicant failed its burden of proof, it would lose any claimed preference.  A crucial aspect of the Berwick doctrine, an aspect ignored by petitioner in this appeal, is that the addition of a Berwick issue to a proceeding was far from automatic.  If the ALJ did not err in finding that Beaufort County Broadcasting failed to make that "stringent threshold showing" in its two motions to add a Berwick issue prior to that doctrine's abolition, then Beaufort County Broadcasting had no hearing right to be violated by the FCC's retroactive elimination of the Berwick doctrine.  Moreover, if the ALJ's disposition of Beaufort County Broadcasting's motions was well-founded, the elimination of the Berwick doctrine could have had no substantial impact on Beaufort County Broadcasting's application and would not justify the amendment of that application to designate Port Royal as its proposed community of license.  Thus we must turn to the issue whether the ALJ properly denied Beaufort County Broadcasting's motions.3

14
We find no error in the ALJ's denial of petitioner's motions.  As noted above, see supra p. 647, Beaufort County Broadcasting bore the burden of making a "stringent threshold showing" that Barnacle would not "realistically serve" Port Royal and of raising "a substantial question" as to this matter.    See Bie Broadcasting, 81 F.C.C.2d at 9.  Beaufort County Broadcasting offered no evidence to show that Barnacle's programming would not meet the needs of Port Royal, and it offered only the unsupported affidavit of a Beaufort resident in support of the claim that Port Royal is not a viable, independent community.  See J.A. at 182.  The ALJ rejected as speculative Beaufort County Broadcasting's allegations that Barnacle really intended to serve Beaufort and found that Beaufort County Broadcasting had not "established that Port Royal is not an independent community or that it is totally dependent on and is a suburb of Beaufort."    Id. at 285.  The record supports those findings.

15
The only question, therefore, is whether the ALJ was required to order a hearing on the Berwick issue solely on the basis of Beaufort County Broadcasting's claim that Barnacle's proposal for a high-powered, Class C FM station providing reception to some 600,000 people "is wholly inconsistent with Barnacle's expressed intention to serve as a first transmission facility for a town of approximately 3,000 people."    Motion for Addition of a Berwick Issue, J.A. at 154.  We hold that the ALJ was not required to add a Berwick issue on this basis.  Prior to Suburban Community Policy/Berwick Reconsidered, in the AM context, if a high-powered station's signal would penetrate the geographic boundaries of a community over 50,000 persons and at least twice as populous as the community of license, then a rebuttable presumption arose that the applicant intended to serve the larger community.  See Policy Statement on Section 307(b) Considerations for Standard Broadcast Facilities Involving Suburban Communities, 2 F.C.C.2d 190, 192-93 (1965), overruled, Suburban Community Policy/Berwick Reconsidered, 93 F.C.C.2d at 446-53.  But such a presumption never was applied in the FM context.    See WHW Enterprises, Inc. v. FCC, 753 F.2d 1132, 1136 (D.C.Cir.1985).  We may reasonably infer from the Commission's use of such a presumption in the AM context that, if it had desired to apply such a presumption in FM licensing, it would have done so explicitly.4   Thus because Beaufort County Broadcasting did not meet the heavy initial burden imposed by Bie Broadcasting upon FM applicants seeking the addition of a Berwick issue, the ALJ's denial of Beaufort County Broadcasting's motions was proper.  See 81 F.C.C.2d at 9;  see also United States v. FCC, 652 F.2d 72, 91 n. 87 (D.C.Cir.1980) (en banc) (asserting that the court has only a "quite limited" role in reviewing an FCC determination that a hearing is not warranted).

16
Since Beaufort County Broadcasting never made the showing that would have entitled it to a hearing on the Berwick issue, it was not affected by the Commission's retroactive abolition of the Berwick doctrine.  This lack of prejudice also undermines the rationale petitioner advanced in seeking to amend its application to make Port Royal its proposed community of license.  We therefore affirm the Review Board's refusal, for lack of good cause, to permit Beaufort County Broadcasting to amend.

III.

17
Beaufort County Broadcasting asserts that the Commission erred in holding that Beaufort and Port Royal did not constitute a single "community" for section 307(b) purposes.  See Brief for Beaufort County Broadcasting (No. 84-1265) at 36.  If the FCC had ruled the other way, Barnacle would not have obtained the determinative section 307(b) preference that it gained by proposing "first transmission service" to the "community" of Port Royal.5   See FCC v. Allentown Broadcasting Co., 349 U.S. 358, 359-62, 75 S.Ct. 855, 856-58, 99 L.Ed. 1147 (1955) (recognizing as "crucial" for section 307(b) purposes "local needs for a community radio mouthpiece" and the general need "to secure local means of expression").  According to Beaufort County Broadcasting, the Commission should have applied the Huntington doctrine to this case.    See Huntington Broadcasting Co. v. FCC, 192 F.2d 33 (D.C.Cir.1951).  The Huntington doctrine, in "exceptional" circumstances, has justified the Commission's setting aside a "determinative" section 307(b) issue, such as the first transmission preference, by treating politically separate entities as one.    See Miners Broadcasting Service, Inc. v. FCC, 349 F.2d 199, 200-01 (D.C.Cir.1965).  While this policy arose in the context of treating a suburb as part of a larger metropolitan "community" when the suburban applicant proposed high-power regional service inclusive of the central city, see Huntington, 192 F.2d at 34, petitioner urges that the Huntington exception to section 307(b) must apply as a matter of law in other contexts.  Specifically, Beaufort County Broadcasting contends that the Commission must apply Huntington with respect to the small, contiguous non-suburban communities involved in this appeal because "the [competing] applicants wil [sic] provide primary service to each other's communities as well as high powered regional service to essentially the same large areas and populations."    Brief for Beaufort County Broadcasting (No. 84-1265) at 39.  We disagree.

18
Petitioner's argument characterizes the Huntington exception to section 307(b) as one triggered by the scope of geographical coverage of the applicants' proposed signals.  Indeed, this does constitute a crucial element of the doctrine.    See Miners Broadcasting Service, Inc. v. FCC, 349 F.2d at 201.  If competing applicants propose substantially the same high-powered service to a broad area, the Commission cannot rationally distinguish among the applicants on the basis of differences in the reception services they propose;  no such differences exist.  But reception does not constitute the entirety of the section 307(b) mandate to provide a "fair, efficient, and equitable distribution" of radio service to the nation.  The Commission also must consider the availability of transmission service to provide communities with adequate outlets for local self-expression.    See Allentown, 349 U.S. at 362, 75 S.Ct. at 858.  It is the Huntington doctrine's concern for the needs of "local self-expression," see Huntington Broadcasting Co., 14 F.C.C. 563, 584 (1950), that Beaufort County Broadcasting has overlooked in focusing exclusively on the scope of signal coverage.

19
With respect to local transmission service, the Huntington doctrine has recognized that, the first transmission service preference notwithstanding, an ostensibly independent and distinct community lacking radio transmission service of local origin might nonetheless have at its disposal adequate broadcast facilities for local self-expression.  The Commission has acknowledged, with the approval of this court, that such a situation would obtain if the local community in question constituted "an integral part of [a] vast metropolitan district" containing a multitude of radio services that catered to the needs of the region as a whole, including the needs of those politically distinct communities that did not yet have a first transmission service.    See Huntington, 192 F.2d at 34;  Armin H. Wittenberg, 30 F.C.C. 417, 419 (1961).  Thus, when a license applicant has designated as its proposed community of license a suburban community integrally a part of a larger metropolitan area, and that applicant has sought a license authorizing enough power to cover the wider area, Huntington has required the FCC to disregard "the corporate limits of the ... city named in the applications" and to treat the proposed community as encompassing the entire metropolitan area.  See Broadcasters, Inc., 16 Rad.Reg.  (P & F) 295, 301 (1957).  No single community within the integrated metropolitan area could receive a section 307(b) preference under the Allentown rationale when Huntington has applied.

20
For a long time after the adoption of Huntington, the scope of the doctrine remained "somewhat obscure" largely because it was unclear under what specific circumstances the Commission would presume the satisfaction of local transmission needs for an otherwise preferred, unserved community.  The reception service aspect of the doctrine was relatively uncontroversial;  the Commission had only to look at the "power, class of station, and frequency" involved in the proposed license.    See Miners Broadcasting, 349 F.2d at 202 n. 6.  The transmission service issue, however, proved more troublesome.  In 1965, this court was able to discern only "some indication" of the factors relied upon by the Commission in this regard:  "the distance of the suburb from the central city";  "the size of the suburb, its economic vitality, and its independence from the central city";  and the relevant market for "advertising revenues."6   349 F.2d at 202 n. 6.  Yet while the precise circumstances in which the Commission would presume satisfaction of local transmission needs remained obscure, the essence of the Commission's approach was clear.  With respect to the transmission service aspect of the Huntington doctrine, the Commission relied on the integral geographical, socio-political, and economic relationship typically enjoyed by a suburb with the surrounding urbanized area as a substitute for an affirmative showing that the stations in other, nearby communities provided adequately for the programming needs of the otherwise unserved suburb.  In its appeal here, Beaufort County Broadcasting asks us to compel the Commission to accept the fact of closely related, contiguous non-metropolitan communities as a substitute for such an affirmative showing.

21
Nowhere does petitioner claim to have made, or even attempted to make, an affirmative factual showing that the radio stations in surrounding communities provide programming service that meets Port Royal's need for local self-expression.  Instead, Beaufort County Broadcasting suggests that it does not need to make such a showing because "neither the Commission nor this Court has ever restricted the Huntington policy to dominant city-suburb factual situations."    See Brief for Beaufort County Broadcasting (No. 84-1265) at 46.  This argument is inapposite.  The Commission did not attempt to restrict the Huntington policy as petitioner contends.  Indeed, the Review Board decision now before us concedes that the single community policy of the Huntington doctrine might have applied in the instant case, but only upon a showing Beaufort County Broadcasting did not attempt.  In contrast with the suburban context, in which the Commission is willing to presume the satisfaction of a suburban community's transmission needs because of the relationship of the suburb to the urbanized area, the Board in dealing with the present non-metropolitan context indicated that "without substantial evidence [the FCC] cannot presume that Port Royal's need for a first transmission service is being met by stations located in other communities."    94 F.C.C.2d at 576.  We turn, therefore, to the question whether the Commission has acted rationally in applying a more stringent Huntington doctrine threshold when dealing with a non-metropolitan, rather than a central city-suburban, context.

22
Underlying the Commission's original decision to adopt the Huntington policy exception was an assumption that the overlapping transmission needs of the central city and contiguous suburban communities, along with the multiplicity of available radio outlets in the typical metropolitan area, would lead in the aggregate to the satisfaction of a given community's needs for local self-expression.  The Commission in Huntington expressly stated, "We ... believe that the programs of a station located in [one] of the contiguous communities [in the metropolitan area], if geared to the needs of the people of the city of its location, would also be geared to serve the needs of the people in the adjacent communit[ies]."  14 F.C.C. at 584.  Petitioner accepts this underlying assumption as entirely rational and in accord with longstanding precedent in this circuit.    See, e.g., Huntington, 192 F.2d at 33-35.  Petitioner's demand that the Commission apply Huntington to a non-metropolitan context, without any factual showing as to the satisfaction of Port Royal's transmission needs by stations in other communities suggests, however, that petitioner believes it irrational not to presume the satisfaction of local transmission needs in this case.  We cannot agree.

23
The Huntington doctrine's policy of treating politically separate entities as a single entity is an "exceptional" one, and the FCC bears the burden of justifying and providing "adequate reasons" for any extension of the Huntington policy.    See Miners Broadcasting, 349 F.2d at 200, 201.  As a reviewing court, therefore, we are especially loath to order the FCC to extend the policy to other contexts absent a convincing demonstration that such an extension is necessary to satisfy the minimum requirements of rationality.  Petitioner has offered no evidence that transmission service conditions in closely related, contiguous non-metropolitan communities compel or even support a general assumption that any such community lacking transmission service of local origin would nonetheless have its needs satisfied by outlets in the contiguous community or communities.  Nor does petitioner direct us to any precedent squarely holding that the Commission must apply the presumption of satisfaction of local transmission needs other than in the central city-suburb context,7 and we can think of no good reason to create such a precedent now.  The Commission is free to require an affirmative factual showing that a community's local transmission needs are being met by stations in surrounding communities before applying the Huntington exception to section 307(b) outside the central city-suburb context.

24
Finally, we must acknowledge that this required factual showing, which is plainly different from the prima facie showing required under Berwick, see Bie Broadcasting, 81 F.C.C.2d at 9, was not enunciated by the Commission prior to the Review Board opinion rejecting Beaufort County Broadcasting's application.  Petitioner, therefore, had no notice that such a showing was necessary to defeat the dispositive preference of the competing applicant.  Petitioner, however, did not argue lack of notice when it sought Review Board reconsideration and full Commission review.  Even in this court, Beaufort County Broadcasting has simply contended that the Commission had to apply the Huntington exception as a matter of law.  We can, therefore, affirm the Commission on the Huntington doctrine issue.

The order of the Commission is

25
Affirmed.

*
 Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. Sec. 292(a)

1
 The FCC has dealt with its Sec. 307(b) mandate to provide a "fair, efficient, and equitable distribution" of radio service in part by establishing within its rules a distribution of FM radio channels to specified communities throughout the nation.  See Revision of FM Broadcast Rules, 40 F.C.C. 747 (1963).  The FM Radio Table of Assignments appears at 47 C.F.R. Sec. 73.202 (1985)

2
 Beaufort County Broadcasting raises another issue on appeal.  Petitioner argues that the FCC acted arbitrarily in eliminating Berwick before determining what procedures to put in its place.  Specifically, petitioner refers to the pending Metropolitan Areas rulemaking, see Notice of Proposed Rulemaking, 48 Fed.Reg. 19,428 (1983), described by the Commission as the "logical next step" after Suburban Community Policy/Berwick Reconsidered.  See id. at 19,430.  In its Notice, the FCC proposes that the concept of "community" be redefined so that "proposals to serve specific localities within a general metropolitan area should be considered metropolitan area proposals" where the applicant proposes a regional channel.  See id.    Beaufort County Broadcasting argues that the adoption of such a proposal might have dictated a different result in Beaufort County, and that it was thus irrational for the Commission to eliminate the Berwick doctrine issue from a pending proceeding like Beaufort County when it was about to consider the merits of this new policy.  See Brief for Beaufort County Broadcasting (No. 84-1384) at 28 (citing ITT World Communications, Inc. v. FCC, 725 F.2d 732, 754 (D.C.Cir.1984)).  The short answer is petitioner was not prejudiced by the abandonment of Berwick because it had already been held, and we think correctly, that petitioner was not entitled to raise a Berwick issue in any event.  Petitioner's objection comes down to the claim that it was entitled to the benefit of a policy not yet adopted.  That contention is frivolous

3
 Beaufort County Broadcasting suggests that the Review Board never reviewed the ALJ's rulings denying Beaufort County Broadcasting's motions to add a Berwick issue.  See Brief for Beaufort County Broadcasting (No. 84-1265) at 56.  Apparently, petitioner concludes this because the Review Board decision asserted the "at oral argument the Beaufort applicant acknowledged that [its exception to the ALJ's denial of its motions to add a Berwick issue] had become moot because of [the] recent Commission policy decision which retroactively deleted the Berwick issue from all hearings."    94 F.C.C.2d at 574.  That statement by the Board, however, went to the issue of remediability--whether, if the ALJ had erred in denying the motions to add a Berwick issue, Beaufort County should receive a hearing on that issue.  Indeed, the Review Board decision which is now before us explicitly stated that "the Commission's abolition of the Berwick doctrine did not have a substantial impact on the Beaufort applicant because, prior to that time, it had twice failed to make the factual showing requiring a trial of that issue."    94 F.C.C.2d at 575.  This demonstrates plainly that the Board relied on and affirmed the ALJ's denial of Beaufort County Broadcasting's motions to add a Berwick issue to the comparative hearing.  Hence, without running afoul of the Chenery principle, see SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943) ("The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based."), we may consider whether the ALJ's denial of Beaufort County Broadcasting's motions was correct

4
 Petitioner has not raised and we have no occasion to address the question whether the FCC acted rationally in implementing different policies to govern the identical questions for AM and FM licensing

5
 Beaufort County Broadcasting sought to provide Beaufort with its fourth such service

6
 The Miners Broadcasting court criticized the uncertain scope of application of the Huntington doctrine as it had evolved and called for the "establish[ment]" of clearer "[s]tandards governing the scope of ... Huntington."    349 F.2d at 201 n. 6.  In the context of FM radio licensing, the FCC responded by adopting the Berwick doctrine, holding that "[w]here significant allegations ... indicat[ed] ... a substantial doubt ... as to whether ... the propos[ed] [license] would provide a realistic local transmission service for [the] specified station location," the applicant had to establish in an evidentiary hearing that the proposed community had unique unmet needs that the proposed station would realistically serve.  See Berwick, 20 F.C.C.2d at 396.  Berwick was the means by which the FCC implemented the principles of Huntington in the FM radio context for 14 years until the 1983 abolition of the Berwick doctrine in the Suburban Community Policy/Berwick Reconsidered rulemaking
The Huntington doctrine, however, did not die with Berwick.    After the issuance of a decision in the pending Metropolitan Areas docket, see supra note 2, the Commission will take Huntington doctrine issues into account in its designation of communities for the FM Table of Assignments.  See Debra D. Carrigan, 100 F.C.C.2d 721, 730 (Rev.Bd.1985).  Until then, the Commission has indicated that it will apply the Huntington policy by way of the factors that the Commission had used prior to the adoption of Berwick.  See 100 F.C.C.2d at 731.
It seems unlikely that Beaufort County Broadcasting could compel the Commission to apply the revived version of Huntington to this case.  Because Huntington had been subsumed within the Berwick doctrine at the time the ALJ made his determinations that Beaufort County Broadcasting was not entitled to the addition of a Berwick issue, any attempt at this stage by Beaufort County Broadcasting to have the Commission treat Port Royal and Beaufort as part of a single community under the Huntington doctrine would give Beaufort County Broadcasting an undeserved third attempt to raise a Berwick issue.

7
 Petitioner places substantial emphasis upon Michigan Broadcasting Co., 20 Rad.Reg.  (P & F) 249 (1960).  This case, however, fails to support Beaufort County Broadcasting's sweeping contentions about the applicability of Huntington outside the metropolitan context.  Michigan Broadcasting, to be sure, involved applicants in two small cities outside a metropolitan context, and the case described Huntington in sweeping terms.  See 20 Rad.Reg.  (P & F) at 253.  The Commission in Michigan Broadcasting merely decided that a Huntington issue be added to the licensing proceeding for determination, but made no actual determination whether the two competing communities should be treated as a single community on the merits.  Beaufort County Broadcasting does not argue that the Commission refused to consider the Huntington issue;  rather they insist that, as a matter of law, the Commission must determine that Beaufort County and Port Royal are considered a single community under Huntington.  Michigan Broadcasting does not support that proposition
To support its claim, Beaufort County Broadcasting also cites Pillar of Fire, 90 F.C.C.2d 1022 (1982), in which the FCC refused to designate a Sec. 307(b) hearing in the context of competing small town applicants.  When the Commission refuses to grant a Sec. 307(b) hearing, that may tend to suggest, though it need not, that the rival communities should be treated as one.  While on its face, therefore, Pillar of Fire lends some support to the assertion that Beaufort and Port Royal should be treated as a single community, it does not constitute precedent for the proposition that the Commission must treat them as one community.  The Commission has some discretion to determine whether the public interest requires that a Sec. 307(b) issue be designated, see Radio Greenbrier, Inc., 80 F.C.C.2d 107, 116 (1980), and the mere exercise of that discretion, without more, cannot support Beaufort County Broadcasting's sweeping assertion that the Commission must apply the Huntington doctrine here.    See Miners Broadcasting Service, Inc. v. FCC, 349 F.2d 199, 200, 201 (D.C.Cir.1965) (requiring an explicit statement and "adequate reasons" before extending the "exceptional policy" of Huntington ).  In Pillar of Fire, a renewal proceeding was at issue, and the existing expectations and proven record of the license, considerations not present in an initial licensing such as the one before us, may have counseled the FCC to exercise its discretion to deemphasize Sec. 307(b) considerations in order to serve the public interest.  But, and this is the essential point, we cannot really tell why the Commission acted as it did in Pillar of Fire.  Pillar of Fire was a hearing designation order, and broad "legal and policy issues ... cannot be explored in [that] limited context."    See Belo Broadcasting Corp., 47 F.C.C.2d 540, 544 (1974).  We cannot, therefore, rely on such a precedent for the strong action we are asked to take.