506 F.2d 246 | D.C. Cir. | 1973
Lead Opinion
The Federal Communications Commission, without a hearing, approved the assignment of the license of a radio station and the proposal of the new licensee to change the format of the station from classical to contemporary music. The narrow question presented by the parties is whether the Federal Communications Act required the Commission to hold a hearing. But our review must also consider the First Amendment consequences of government control of format change.
I
Radio station WEFM-FM has been operated in the Chicago area by the Zenith Radio Corporation since 1940. For the entire thirty-three year period the station has had a classical music format.
In March, 1972, Zenith entered into an agreement to sell the station to GCC Communications of Chicago, Inc. and sought FCC approval for assignment of the license. GCC proposed to change the musical format of WEFM from classical to contemporary music, later defined to be “rock music.” The goal of GCC was to appeal to what it had determined to be the primary musical interests of the young adults in the Chicago area.
In June, 1972, appellants, a group of Chicago area residents, filed a Petition to Deny with the FCC, opposing the transfer because of the proposed change in format and requesting a hearing. The FCC denied appellants’ request and granted the assignment of the license.
II
In recent years this Court and the FCC have begun to develop principles governing government control of format changes.
In this case appellants contend that substantial factual disputes exist on two issues relating to the proposed format change — the diversity of available formats and Zenith’s alleged financial losses.
As to diversity, appellants maintain that a substantial issue of fact exists as to whether the Chicago public demands and needs the continuation of classical music on WEFM as opposed to “yet another contemporary music station.”
Our previous opinions and the Commission’s actions indicate that the majority of format changes are left to the give and take of the market environment and the business judgment of the licensee.
In this case is is undisputed that the entire area served by WEFM is served by another classical music station, WFMTFM.
Appellants also contend that a substantial issue of fact exists concerning the losses Zenith alleges it sustained during its operation of WEFM. Even assuming that such an issue would require a hearing in the absence of a substantial diversity issue, we do not find that appellants have raised a substantial issue of fact here. The Commission had sufficient evidence to support its finding that WEFM had incurred substantial losses in the period after 1965, when the station was operated on a commercial basis and not as a research and development adjunct to the Zenith corporation.
Ill
The current approach of this Court and the Commission, that a hearing is required only when a format becomes unavailable, must be evaluated in light of the First Amendment. Whether the issue is the fairness doctrine,
Important First, Amendment rights are at stake when music formats are regulated. Music and other forms of cultural expression are traditionally protected under the First Amendment.
It is also true that complete reliance on the market may inhibit rather than promote the First Amendment goal of “the widest possible dissemination of information from diverse and antagonistic sources.”
These First Amendment considerations have implications for decisions as to when a hearing must be held in a format change case. On the one hand, hearings may open the door to increased
On the other hand, hearings could help develop standards under which a diversity of formats could be encouraged without undue government regulation. The “full light” of a public hearing is often the best insurance that important policies are developed for the benefit of the public, rather than the benefit of administrators and regulated industries.
IV
At present we simply do not know how to ideally resolve the conflict between diversity and freedom from regulation. Our awareness that conflicting values are at stake here is our best protection against falling into the abyss of dogmatism. We must remain open to new information and ideas. But at the present juncture and with the facts of this case, the current approach of minimizing regulation except when diversity is most seriously threatened appears to be reasonably in accord with the goals of the Federal Communications Act and the First Amendment.
Accordingly, the decisions of the Commission are
Affirmed.
. Memorandum Opinion and Order, FCC 72-1129, adopted December 13, 1972 and released December 21, 1972, 38 FCC2d 838 (1972). This order also dismissed a Complaint filed by appellants. The Complaint had requested that the FCC dedicate WEFM’s channel to a classical and related cultural music format for so long as the listening audience remained interested in such programming and a qualified person or group was willing to continue such a format.
. See Citizens Committee to Preserve the Voice of the Arts in Atlanta v. FCC, 141 U.S.App.D.C. 109, 436 F.2d 263 (1970); Hartford Communications Committee v. FCC, 151 U.S.App.D.C. 354, 467 F.2d 408 (1972); Lakewood Broadcasting Service, Inc. v. FCC, 156 U.S.App.D.C. 9, 478 F.2d 919 (1973); The Citizens Committee to Keep Progressive Rock v. FCC, 156 U.S. App.D.C. 16, 478 F.2d 926 (1973).
. The Citizens Committee to Keep Progressive Rock, at 16, 478 F.2d 926.
. Lakewood Broadcasting Service, Inc., at 12 of 156 U.S.App.D.C. at 922 of 478 F.2d.
. Appellants’ brief, at 38.
. The Citizens Committee to Keep Progressive Rock, at 16 of 156 U.S.App.D.C., 478 F.2d 926.
. U. at 16, 478 F.2d 926.
. A third classical music station, WNIB-FM, currently serves a smaller part of the Chicago area. GCC has agreed that if their license application is approved, they will relinquish the call letters WEFM to WNIB and give WNIB the WEFM classical music library as well as technical assistance designed to enable WNIB to increase its power.
. The long history of WEFM’s service does not diminish the impact of WFMT’s similar programming. The length of time that a format has been on the air is usually relevant only when that format is unique. See Citizens Committee to Keep Progressive Rock, at 24, 478 F.2d at 934, note 22:
Naturally the length of time that a specific format has been on the air is a factor to be considered in the ultimate public interest determination, for it can have a direct bearing on the degree of attachment which the public has to the unique format. (Emphasis added).
This approach to the diversity issue cannot be applied in a mechanistic fashion. Whether a format to be discontinued is unique can be a subtle question requiring that more than mere labels be examined. The fact, for example, that two stations are labelled “classical” does not automatically mean that they provide substantially similar programming. One of the stations might never play music composed in this century, while the other devotes considerable amounts of time to such music. In this case, however, it is apparent that WEFM and WFMT have substantially similar programming, both covering a broad range of classical music. Gf. Citizens Committee to Keep Progressive Rock, at 16, 478 F.2d 926, where this Court noted that “Top 40” stations cannot automatically be assumed to provide substantial amounts of “progressive rock” music.
. Zenith was not, for example, able to obtain enough advertising to fill the two and one-half minutes per hour it allotted for ads. Joint Appendix at 73.
Appellants’ contention concerning the adequacy of the notice of the application for voluntary transfer is also without merit. The Commission properly found that Zenith complied with the notice requirements of the Commission’s rules. The notice given was not constitutionally defective.
Similarly, appellants’ contention that the Commission’s ex 'parte rules had an unconstitutional impact on the public discussion of the format change is without merit in the setting of this case.
. See Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 473 F.2d 16 (1972) (Bazelon, C. J., dissenting).
. See Yale Broadcasting Company v. FCC, On Motion for Rehearing En Banc, 155 U.S.App.D.C. 390, 478 F.2d 594 (statement of Bazelon, C. J.).
. See, e. g., Jacobellis v. Ohio, 378 U.S. 184, 191, 84 S.Ct. 1676, 1680, 12 L.Ed.2d 793 (1964) (Brennan, J.) (“It follows that material dealing with sex in a manner that advocates ideas, ... or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection [of the First Amendment].”) (Emphasis added).
See, also, Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957). (“The importance of [freedom of the press] consists, besides the advancements of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government . . .”) (Emphasis added).
Zeehariah Chafee, Jr. set forth the historical argument that the First Amendment was designed to include the arts within its protection :
No doubt, the Zenger trial and the controversy over Wilkes and Junius in England did associate the struggle for freedom of speech to some extent with popular discussion of political questions, but the struggle was also related to the abolition of the censorship of books of any sort. Milton’s Areopagitica advocated freedom of much else besides political tracts. The First Amendment brackets freedom of speech with freedom of the press . . . If “speech” is limited so is “press.” Yet that is impossible in view of the address of the Continental Congress in 1774 to the people of Quebec, in which freedom of the press, in addition to its political values, is said to be important for “the advancement of truth, science, morality and arts in general.” .
Moreover, the framers would hardly have relegated science, art, drama, and poetry to the obscure shelter of the Fifth Amendment, . . . inasmuch as “due process” meant mainly proper procedure until the middle of the nineteenth century. . . . Chafee, Book Review, 62 Harv.L.Rev. 891, 896 (1947).
. See Yale Broadcasting Company v. FCC, On Motion for Rehearing En Banc, at 397 of 155 U.S.App.D.C., at 594 of 478 F.2d, note 23, and sources cited therein. See, also, Morison, Oxford History of the American People, 292, 472, 912, 913 (1965) for comments on the role of classical music in American culture.
. See, generally, Yale Broadcasting Go., On Motion for Rehearing En Banc.
. Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945).
. See Brandywine-Main Line Radio, Inc. (Bazelon, C. J., dissenting), at 319-320 of 153 U.S.App.D.C., 473 F.2d 16.
. Id.
. See, e. g., Memorandum Opinion and Order, FCC 73-329, adopted March 21, 1973 and released March 22, 1973, 40 FCC 223 (1973), additional views of Chairman Burch.
. Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584, 594 (1971).
Rehearing
ON REHEARING EN BANC
This is a statutory review proceeding involving the Federal Communications Commission. It has been thought appropriate for en banc consideration because it presents important questions with respect to the utilization of the publicly-owned airwaves in such manner as to serve the divergent interests and tastes of the largest possible number of their owners. A Citizens Committee was organized to contest the assignment of the license of radio station WEFM (FM), Chicago, Illinois, by Zenith Radio Corporation to GCC Communications of Chicago, Inc. The FCC denied the Committee’s petition to deny the application to transfer the license or, alternatively, to conduct a hearing on certain questions. 38 FCC 2d 838; 40 FCC 2d 233 (on reconsideration).
The case was originally heard and decided by a division of the court which affirmed the action of the Commission in authorizing the assignment of the license in issue without a hearing. Judge Fahy dissented from this disposition in an opinion which, after noting that (1) the statute (47 U.S.C. § 309(e)) requires hearings to resolve factual disputes which are substantial and material and (2) the Commission in approving the assignment had relied materially and substantially upon alleged financial losses suffered by the assignor, expressed agreement with the dissenting Commissioner that “the attribution of such financial losses to the assignor’s classical musical format was a question which could not be answered without further investigation,” especially since the assignee “continued to use the station to advertise its own manufactured products.”
We find that the Committee has raised substantial and material questions necessitating a hearing before final disposition of the transfer application, and that the present record is inadequate to support the Commission’s purported public interest finding.
I
Since it was first licensed to Zenith in 1940, WEFM’s format has always been one of classical music. For twenty-five years Zenith operated the station on an entirely non-commercial basis, at the same time using the station as a developmental adjunct to, and laboratory for, its FM receiver manufacturing business. As such, WEFM has had a distinguished history, being the first Chicago station to broadcast in high-fidelity (1953), the pioneer in stereophonic broadcasting (1959), the source of experiments leading to the FCC’s national standards for multiplex (stereo) operations (1961), and the first station in its area to introduce the dual polarization antenna, which radiates both horizontal and vertical signals (1966).
The increased costs that Zenith incurred with its 1966 expansion of WEFM’s studio and technical facilities caused the company for the first time “to seek advertising support” for its
In March, 1972, Zenith contracted to sell WEFM to GCC, a corporation organized for the purpose of the purchase, for $1,000,000.
Notice of the proposed assignment was broadcast over WEFM once daily for four consecutive days and published four times in one of Chicago’s four daily newspapers. The notice identified the type of application filed, the parties (assignor and assignee) thereto, the officers and directors of each, and stated that the application was available for inspection at Zenith’s offices. No mention of the proposed format change was required, and none was made. 47 C.F.K. § 1.580 (d).
In its petition filed with the FCC, the Committee related that the 7.5 million residents of the metropolitan area served by WEFM received classical music from no AM stations and, in the greater part of the service area, from only one other FM station, WFMT-FM.
On the basis of these and other allegations of fact, the Committee asserted that it had made out a ease to deny the proposed assignment of WEFM’s license on public interest grounds, or at least raised “substantial and material question [s] of fact,” necessitating a hearing, 47 U.S.C. § 309(d), about the public interest in the proposed format change, Zenith’s claimed losses, and GCC’s qualifications as a licensee. It also challenged the constitutional adequacy of the public notice that the assignment was pending, and that a format change was contemplated.
Zenith and GCC filed oppositions to the Committee’s petition. For its part, Zenith asserted facts intended to show the bona fides of its attempt to operate WEFM on a commercial basis and the amount of its losses, said to be almost $2 million over six years. GCC controverted the Committee’s assertion that it had already decided to abandon WEFM’s classical music format when it agreed to purchase the station, stating that “ [i] t was only after the study of [community] needs [which the FCC requires of each license applicant] was completed and it was determined that the station would program for the young adults of the Chicago area that it was determined that a classical music format would not be consistent with programming directed to this age group.” It also asserted that Chicago-area classical music broadcasting would be of overall higher quality when only WFMT and a strengthened WNIB shared that market than it could be with three stations competing for the classical music audience, but no facts were alleged to buttress either the premise that present service is poor or the likelihood that it would be improved by WEFM’s format change.
The Committee’s reply alleged that WNIB reached at most 15% of the area served by WEFM, further questioned Zenith’s claimed losses, although it alleged no specific facts to the contrary,
While the application and petition to deny were pending before the FCC, the Committee on November 20, 1972, also filed a complaint requesting that WEFM be dedicated to classical music and cultural programming so long as any licensee willing to operate it for that purpose could be found. Zenith and GCC moved that the complaint be dismissed as a pleading not provided for in the FCC rules of practice.
On December 21, 1972 the FCC issued a Memorandum Opinion denying the
The Commission’s resolution of this issue, however, depended not on the claimed losses, but rather on its view of its own role in eases where the format to be abandoned is not unique. In these circumstances, the FCC opined, competition among broadcasters will produce the optimal distribution of formats. Citizens Committee to Preserve the Voice of the Arts in Atlanta (WGKA-FM) v. FCC, 141 U.S.App.D.C. 109, 436 F.2d 263 (1970) (hereinafter Citizens Committee of Atlanta), where this court had held that abandonment of a unique format was “material” in gauging the public interest and that “substantial” factual questions therefore had to be resolved in a public hearing before the assignment application could be approved as being in the public interest, was thus distinguished. In the FCC’s view, abandonment of a non-unique format is not a matter affected with the public interest but a business judgment within the licensee’s discretion.
To hamper the licensee’s discretion in this area with the ominous threat of a hearing in a case like this would only serve to discourage licensees from choosing or experimenting with a format .... Accordingly, we find no basis to question the applicants [sic] discretion in the choice of format .... 38 FCC 2d at 846.
Finding the Committee’s factual allegations concerning the assignee’s financial structure and its parent’s losses, and community leader opposition to a format change, to have been met adequately by the applicant’s responses, the FCC held that there were presented no material and substantial questions of fact on which to require a hearing.
Commissioner Johnson in his dissenting opinion argued that Citizens Committee of Atlanta could not be confined to instances where a unique format is involved, since the assignee in that case had alleged that another classical music station did indeed serve much of Atlanta and yet this court held that a hearing
In petitioning the FCC for reconsideration, the Committee principally argued that the Commission had failed to consider the public interest in retaining WEFM as a distinctive cultural facility,
Appended to the Commission’s opinion on reconsideration was an opinion entitled “Additional Views of Chairman Burch In Which Commissioners Robert E. Lee, H. Rex Lee, Reid, Wiley, and Hook Join.” 40 FCC 2d at 230. Since Commissioners Reid and Wiley did not join in the opinion on reconsideration but only concurred in the result, these “Additional Views,” to which six of the seven FCC Commissioners adhere, take on peculiar significance. They differ from the opinion itself in being broader than the facts of the particular case, but at the same time explain the underlying analysis on which the FCC’s decision in this case was based. Indeed, they were offered because the Commissioners believed “that an explanation of the many policy considerations underlying our decision here is both appropriate and necessary.” According to the six Commissioners, the starting point for discerning the appropriate FCC policy on format choice is in striking the “balance between the preservation of a free competitive broadcast system, on the one hand, and the reasonable restriction of that freedom inherent in the public interest standard provided in the Communications Act, on the other,” quoting FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 474, 60 S.Ct. 693, 84 L.Ed. 869 (1940). Thus:
The Commission has struck this balance by requiring licensees to conduct formal surveys to ascertain the need for certain types of nonentertainment programming, while allowing licensees wide discretion in the area of entertainment programming. Thus with respect to the provision of news, public affairs, and other informational*197 services to the community, we have required that broadcasters conduct thorough surveys designed to assure ■ familiarity with community problems and then develop programming responsive to those identified needs.3 In contrast, we have generally left entertainment programming decisions to the licensee or applicant’s judgment and competitive marketplace forces. As the Commission stated in its Programming Policy Statement, 25 Fed.Reg. 7293 (1960), “[o]ur view has been that the station’s [entertainment] program format is a matter best left to the discretion of the licensee or applicants, since as a matter of public acceptance and of economic necessity he will tend to program to meet the preferences of his area and fill whatever void is left by the programming of other stations.” (Emphasis added.)
In further support of this policy, the Commissioners expressed their view of the unwisdom of “locking” a broadcaster in to a particular format, lest it have “the effect of lessening the likelihood that [‘program formats appealing to minority tastes’] will be attempted' in the first place.”
II
The Committee presses several grounds for reversal of the FCC in this court. Its principal arguments are that (1) the FCC failed to, and could not on this record, determine whether the assignment and format change would be in the public interest; (2) substantial and material questions of fact necessitate a hearing; and (3) the public' notice of the impending assignment required by the FCC is insufficient on due process criteria.
A. Analytic framework.
Under the Communications Act, 47 U.S.C. § 309(a), the Commission must determine, with respect to each license application, whether the public interest, convenience, and necessity would be served by granting the application, and, if it determines that it would be, must grant the application.
(2) If the Commission finds on the basis of the application, the pleadings filed, or other matters which it may officially notice that there are no substantial and material questions of fact and that a grant of the application would be consistent with [the public*198 interest, convenience, and necessity], it shall make the grant, deny the petition, and issue a concise statement of the reasons for denying the petition, which statement shall dispose of all substantial issues raised by the petition. If a substantial and material question of fact is presented or if the Commission for any reason is unable to find that grant of the application would be consistent with [the public interest, convenience, and necessity], it shall proceed as provided in subsection (e) of this section. (Emphasis added.)
Subsection (e) governs the procedures for setting the application down for a hearing and notifying interested parties, and, in the case of issues presented by a petition to deny, authorizes the FCC to assign the burden of going forward and the burden of proof.
It is clear from the face of the statute that there are two situations in which a hearing is required before the FCC is either empowered or obliged to grant an application. The first, and the only one with which this court has previously dealt, arises when substantial and material questions of fact are raised by the petition to deny. The second occurs when the Commission is “for any reason” unable, on the basis of the application, pleadings, and officially noticeable matters, to make the requisite finding that the public interest would be served. It would seem that this situation might obtain with respect to a particular application regardless of whether anyone has intervened to oppose the application,
In this case, the two asserted grounds for requiring a hearing are intimately related, as an examination of the prior case law reveals. It is common ground among all hands, as it was between the majority and dissenting positions on the FCC, that the need for a hearing in this case turns largely on the reach of our decision in Citizens Committee of Atlanta, supra, which is factually like the instant case to a startling degree.
The Atlanta case also involved a proposed sale and abandonment of a classical music format. Public notice of the application produced an outcry against the format change, the FCC received a large number of protestant letters, and a citizens committee arose to intervene before the FCC in opposition. The FCC approved the application without a hearing. It relied upon the applicant’s community leader survey to demonstrate informed support for the proposed change in format, determined from the applicant’s surveys that the proposed programming would be in the public interest, and “recited as a fact” that the transfer in ownership was a financial necessity. 436 F. 2d at 266.
In the proceedings on reconsideration, the Atlanta committee questioned the significance of the community leader survey and alleged that the applicant had misrepresented the views of interviewees. The applicant responded with affidavits from the community leaders vouching for the accuracy of the applicant’s summary of their views. Additionally, the applicant both proposed to air classical music for a portion of each evening in recognition of the expressed interest of the large number of protestants, and asserted that a station licensed to nearby Decatur, Georgia, “adequately served the daytime needs” of Atlantans. The FCC denied reconsideration, stating that “[T]he case here comes down to a choice of program formats — a choice which in the circumstances is one for the judgment of the licensee.” It took to be the fact that the Decatur station served “a large portion of the City of Atlanta.”
This court reversed the FCC. We held that a format change involving abandonment of a unique format, protested by a significant sector of the community, is a matter material to the public interest and thus one on which a hearing must be held if there are substantial questions of fact. Accordingly, we remanded for a hearing to determine (1) the true financial situation of the assignor, (2) the actual views of the community leaders interviewed by the assignee, and (3) the degree to which the Decatur station provided Atlantans with classical music during the daytime.
The theory underlying the court’s decision in Citizens Committee of Atlanta is that the FCC does have some responsibility, under its public interest mandate, for programming content. The Commission had forsworn any such role on the theory that, because it is not authorized to be a “national arbiter of taste,” it must rely entirely on the licensee’s discretion in matters of entertainment format. As we pointed out, however, the alternatives are not so stark. “The Commission is not dictating tastes when it seeks to discover what they presently are, and to consider what assignment of channels is feasible and fair in terms of their gratification.” 436 F.2d at 272 n. 7. In discharging its public interest obligation, the court thought it to be within the Congressional contemplation that the FCC would seek to assure that, within technical and economic constraints, as many as possible of the various formats preferred by. segments of the public would be provided.
Thus, if 16% of the populace wanted access to classical music on radio, the public interest would, pro tanto, be served by its continued availability provided that the format is not economically unviable in the particular market. If a proposed format change would introduce a new format for a larger segment of the public that is not presently being served, it could not be denied by giving disproportionate weight to the preference of the audience for classical music, but that was not the situation in Atlanta. We repeat what we said in 1970 (436 F.2d at 269):
The Commission’s point of departure seems to be that, if the programming contemplated by intervenor is shown to be favored by a significant number of the residents of Atlanta, then a determination to use that format is a judgment for the broadcaster to make, and not the Commission. Thus, so the argument proceeds, since only some 16% of the residents of Atlanta appear to prefer classical music, there can be no question that the public interest is served if the much larger number remaining are given what they say they like best.
In a democracy like ours this might, of course, make perfect sense if there were only one radio channel available to Atlanta. Its rationality becomes less plain when it is remembered that there are some 20 such channels, all owned by the people as a whole, classics lovers and rock enthusiasts alike. The “public interest, convenience, and necessity” can be served in the one case in a way that it cannot be in the other, since it is surely in the public interest, as that was conceived of by a*200 Congress representative of all the people, for all major aspects of contemporary culture to be accommodated by the commonly-owned public resources whenever that is technically and economically feasible.
The Atlanta case was applied in two decisions of this court rendered immediately after the FCC’s decision to deny reconsideration in the instant case. Citizens Committee to Keep Progressive Rock v. FCC, 156 U.S.App.D.C. 16, 478 F.2d 926 (1973), involved a proposed license assignment and format change (from “progressive rock” to “middle of the road” music) on a station that had experimented unsuccessfully with two formats and switched to yet a third during the pendency of the assignment application. We adhered to our holding in Citizens Committee of Atlanta that “the public has an interest in diversity of entertainment formats and therefore that format changes can be detrimental to the public interest. Consequently, in compliance with its statutory mandate to approve only those assignment applications which it finds to serve the public interest, convenience, and necessity, . the Commission must consider format changes and their effect upon the desired diversity.” Id. at 928-929.
Most format changes, we observed, do not diminish the diversity available, and “are thus left to the give and take of each market environment and the business judgment of the licensee.” In that case, however, the format proposed to be abandoned was allegedly unique and its loss would affect diversity, thereby implicating the public interest in the change. Even that would have been of no moment were it shown that the endangered format was not viable economically, but affidavits from some station employees indicated that, while the station had not yet made a profit with the recently adopted format, it was “rapidly achieving financial viability.” We clarified the “financial viability” constraint on the doctrine of the Atlanta case as follows (at p. 931):
The question is not whether the licensee is in such dire financial straits that an assignment should be granted, but whether the format is so economically unfeasible that an assignment encompassing a format change should be granted. (Emphases in original.)
Once a proposed format change engenders “public grumbling [of] significant proportions,” the causal relationship between format and finance must be established, and if that requires the resolution of substantial factual questions, as it did in that case, then a hearing must be held.
The result was different in Lakewood Broadcasting Service, Inc. v. FCC, 156 U.S.App.D.C. 9, 478 F.2d 919 (1973), decided the same day, because the FCC had properly found, in a “painstakingly thorough decision,” that no substantial factual questions existed. The assign- or’s financial losses due to the all-news format were undisputed, as was the availability of a substantial amount of news programming on other area stations. What was really being challenged, we found, was “not the authenticity or accuracy of the [community needs] surveys, composites, or economic reports, but rather the inferences which the Commission may draw therefrom.” Id. at 924. The question of the inferences and legal conclusions to be drawn from substantially undisputed facts, we held, is preeminently the province of the FCC and does not require the holding of an evidentiary hearing.
B. The public interest issues.
In its petition to deny, the Citizens Committee did not attempt to portray WEFM as significantly unique in format. Of the 61 stations serving the Chicago area, WEFM, WFMT, and WNIB, all FM stations, were identified as having a “classical music and related cultural program format,” with the qualification that “[sjome variation, however, exists in the program [sic] of the three stations.” J.A. 55. The importance of WNIB as an alternative source of classical music was discounted with the allegation that it reaches “only a small part of the audience devoted to classical music,” and the letters of protest received by the FCC were said to reveal that “the great majority of WEFM’s audience believe that only one other classical music station (WFMT) is available'.”
In its original decision, the FCC stated flatly that, unlike the situation in Atlanta, “there are two other classical music stations in Chicago.” 38 FCC 2d at 845. On reconsideration the FCC responded to the Committee’s contention that WNIB’s limited service area made it an inadequate substitute for WEFM. On the basis of an attached contour map showing the service areas of all three stations, it found that WNIB, while it does not reach anything like as great an area as WEFM, does reach “all of the city of Chicago, its city of license.”
The FCC’s assertion that abandonment of WEFM’s classical music format will not leave its service area bereft of similar programming cannot be sustained on the record before us.
We may assume that WNIB serves all of its city of license, Chicago, and, as the Commission stated, that “secondary agreements between WNIB and GCC provide for the enrichment of the programming fare offered by WNIB and substantial assistance is to be provided in increasing that station’s power.” Without further elaboration, however, it is impossible to say, and the FCC did not find, that WNIB will ultimately serve substantially the area now served by WEFM.
Insofar as WNIB fails to reach the area served by WEFM, we think it is, pro tanto, not an available substitute for WEFM. The FCC’s reliance on WNIB as a substitute clearly reflected its view that the public interest in format change cases is defined by the metes and bounds of the city of license. In Stone v. FCC, supra, we found it unnecessary to decide finally whether a licensee “has a primary obligation to serve the needs and interests of its city of license,” 466 F.2d at 327 (emphasis added), as opposed to the full service area it reaches, because the FCC had properly determined that the television licensee in that renewal ease had adequately served its city of license. But we did think it “clear that a broadcast licensee bas an obligation to meet the needs and interests of its entire area of service. . . . Suburban and other outlying areas are not cities of license, although their needs and interests must be met by television stations licensed to central cities.”
We now hold that the public interest implicated in a format change is the interest of the public in the service area, not just the city of license.
2. WFMT as an alternative source of classical music.
Insofar as WNIB is not an available alternative to listeners presently served by WEFM, WFMT is the only remaining station on which the FCC could rely in support of its thesis that WEFM’s abandonment of classical music does not come within the unique format doctrine of Citizens Committee of Atlanta. There is, however, a problem with the FCC’s bald characterization of WFMT as a classical music station in this proceeding.
A challenge to a proposed assignment of the license of WFMT came before this court in 1968. Joseph v. FCC, 131 U.S. App.D.C. 207, 404 F.2d 207. The issue posed in that case was the propriety of the Commission’s approval of the assignment, without a hearing and without an express public interest finding, from an independent broadcasting company to a corporate group that controlled several broadcast stations and newspapers. We remanded the case to the FCC for a determination of whether a grant of the assignment application would create an undue concentration of media control in contravention of the FCC’s regulations and the diversification policy on which they rested.
In this court WFMT represented itself to be, and the court referred to it as, “an award-winning fine arts station,” id. at 208, and not as a classical music station. After the hearing on remand, the proposed assignee amended its portion of the assignment application to reflect its intention, if the FCC approved, to donate a 100% interest in WFMT to the Chicago Educational Television Association.
Against this background
The substitutability of WFMT’s “fine arts” programming for WEFM’s classical music format may perhaps be capable of demonstration without the benefit of a hearing. The FCC retains a discretion commensurate with its expertise to make reasonable categorical determinations. If its exercise of that discretion requires information that can best be developed in a public hearing, see Citizens for Allegan County, Inc. v. FPC, 134 U.S.App.D.C. 229, 414 F.2d 1125, 1129 (1969), or if substantial questions concerning format similarity arise with the issue thus framed on remand, however, a hearing may well be necessary to resolve this issue. Since a hearing will be required in any event on the questions discussed in II. C, infra, we see no reason why its scope should be limited to exclude the question of WFMT’s substitutability for WEFM.
C. Questions of fact requiring a hearing.
The FCC also held that the non-format questions raised by the Committee were not material and substantial, and thus that no hearing was required to resolve them. As to two such questions, we cannot agree.
1. Zenith’s alleged losses.
Zenith claims to have incurred an operating loss of almost $2 million in the six years during which WEFM sold advertising .time, and to have suffered a net after tax loss of approximately $1 million.
The Committee did not itself base its disputation of the losses on Zenith’s financial reports because, it says, the FCC considers such reports confidential and would not have given the Committee access to them had a request been made. In these circumstances, it is fundamentally unfair for the FCC to dismiss the Committee’s challenge to Zenith’s claim of losses because the Committee “neither alleged any facts which would cast doubt on the
2. GCC’s community leader survey.
In seeking reconsideration by the Commission, the Committee asserted that GCC had deliberately misled the FCC about its intentions to change WEFM’s format. GCC represented that it approached the question of format with an open mind and then, on the basis of its community needs survey, determined to direct its programming to young adults, the group it considered most in need of service. Having made that decision, it first set out to determine how best to reach that audience and discovered that a rock music format would be the best vehicle for doing so. Thus, it did not inform community leaders interviewed at the outset of this process that it would change WEFM’s format to rock music because it had not yet then determined whether to change the format at all.
There is a fact introduced by the Committee that casts some doubt on the bona fides of GCC’s representation. The Committee, it will be recalled, inquired of and received answers from a number of the community leaders that GCC had surveyed about community needs and problems. Five of the twenty-four who answered the Committee’s inquiry stated that they had been told that there would be a format change once GCC became the licensee of WEFM, and one recalled being told specifically that the new format would be rock music.
This situation is covered by what we said in Citizens Committee of Atlanta (436 F.2d at 271) where it was urged that discrepancies of exactly this sort
demonstrate actual misrepresentation on [the applicant’s] part which disqualifies it from being a licensee. We are not disposed, at least on this record, to attribute such a purpose to [the applicant] .... Confusion, conflict, misunderstanding, obscurity — all are inherent in a process in which the statements and opinions of one individual are sought to be determined from what two adversary parties say that he said or thinks.
The truth is most likely to be refined and discovered in the crucible of an evidentiary hearing; and it is precisely a situation like the one revealed by this record which motivated Congress to stress the availability to the Commission of the hearing procedure.
A hearing is equally in order on the question of misrepresentation in this case.
Ill
This court’s role as the sole forum for appeals from FCC licensing decisions impels us to add a further comment on the Commission’s approach to the public interest in matters of format, and what it termed the “ominous threat of a hearing.” As stated in Section I, supra, the six Commissioners who voted to deny reconsideration in this case spoke di
The crux of the Commissioners’ reason for believing that entertainment “program format is a matter best left to the discretion of the licensee or applicant” is that “as a matter of public acceptance and economic necessity he will tend to program to meet the preferences of his area and fill whatever void is left by the programming of other stations.” But this analysis is not applied uniformly by the FCC, which distinguishes entertainment fare from other services, such as news and public affairs coverage, as to which the FCC “require[s] that broadcasters conduct thorough surveys designed to assure familiarity with community problems and then develop programming responsive to those needs.” In this way, the FCC has attempted to strike a balance between free competition in broadcasting “and the reasonable restriction of that freedom inherent in the public interest standard.” FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 474, 60 S.Ct. 693, 84 L.Ed. 869 (1940).
Precisely why the balance should be struck with entertainment programming in one pan and everything else in the other is not clear. The Policy Programming Statement pays a great deal of attention to First Amendment considerations in justifying the FCC’s non-interference in entertainment matters, but familiar First Amendment concepts would, if anything, indicate a lesser — not a greater — governmental role in matters affecting news, public affairs, and religious programming. We need not today, however, wade into such deep waters.
The Supreme Court has, more recently than Sanders, made it clear that “[t]he ‘public interest’ to be served under the Communications Act is . . . the interest of the listening public in ‘the larger and more effective use of radio.’ § 303(g).”
The Commission’s licensing function cannot be discharged, therefore, merely by finding that there are no technological objections to the granting of a license. If the criterion of “public interest” were limited to such matters, how could the Commission choose between two applicants for the same facilities, each of whom is financially and technically qualified to operate a station?
The avowed aim of the Communications Act of 193b was to secure the maximum benefits of radio to all the people of the United States.
National Broadcasting Co. v. United States, 319 U.S. 190, 216-217, 63 S.Ct. 997, 87 L.Ed. 1344 (1943) (emphasis added). Moreover, there is no longer any room for doubt that, if the FCC is to pursue the public interest, it may not be able at the same time to pursue a policy of free competition.
The very fact that Congress has seen fit to enter into the comprehensive regulation of communications embodied in the Federal Communications Act of 1934 contradicts the notion that national policy unqualifiedly favors competition in communications.
FCC v. RCA Communications, Inc., 346 U.S. 86, 93, 73 S.Ct. 998, 97 L.Ed. 1470 (1953).
This court does not sit to make radio policy, but to protect Congress’s “avowed
There is, in the familiar sense, no free market in radio entertainment because over-the-air broadcasters do not deal directly with their listeners. They derive their revenue from the sale of advertising time. More time may be sold, and at higher rates, by a station that has a larger or a demographically more desirable audience for advertisers. Broadcasters therefore find it to their interest to appeal, through their entertainment format, ito the particular audience that will enable them to maximize advertising revenues. If advertisers on the whole prefer to reach an audience of a certain type, e. g., young adults with their larger discretionary incomes, then broadcasters, left entirely to themselves by the FCC, would shape their programming to the tastes of that segment of the public.
This is inherently inconsistent with “securing] the maximum benefits of radio to all the people of the United States,” and not a situation that we can square with .the statute as construed by the Supreme Court. We think it axiomatic that preservation of a format would otherwise disappear, although economically and technologically viable and preferred by a significant number of listeners, is generally in the public interest.
The orders under review are set aside, and the matter is remanded for further proceedings consistent herewith.
It is so ordered.
. 47 U.S.C. § 310(b) provides as follows:
No construction permit or station license, or any rights thereunder, shall be transferred, assigned, or disposed of in any manner, voluntarily or involuntarily, directly or indirectly, or by transfer of control of any corporation holding such permit or license, to any person except upon application to the Commission and upon finding by the Commission that the public interest, convenience, and necessity will be served thereby. Any such application shall be disposed of as if the proposed transferee or assignee were making application under section 308 of this title for the permit or license in question; but in acting thereon the Commission may not consider whether the public interest, convenience, and necessity might be served by the transfer, assignment, or disposal of the permit or license to a person other than the proposed transferee or assignee. (Emphasis supplied).
. Statement of Assignor’s Purpose in Requesting Assignment of the License of WEFM, J.A. 240.
. GCO is a subsidiary of General Cinema Corporation, which controls several stations in other cities.
. As explained in GCC’s later opposition to the petition to deny, “contemporary” music is rock music. J.A. 91. According to GCC’s own account (J.A. 343), however, five of the sixty-one stations serving the Chicago area play rock, progressive rock, or jazz rock music, while another eight concentrate on “pop,” or “pop contemporary” music. Ascertainment of Community Interests, Needs and Problems 70-73, J.A. 253-56.
. Part of the area is also served by WNIB. GCC has proposed to give the classical music library acquired from WEFM, along with technical assistance and that station’s call letters, to WNIB. WNIB would then, so it is said, be able to reach a larger portion of WEFM’s service area with classical music.
. In its petition for rehearing in this court, the Committee refers to a study introduced as Exhibit 1A but not part of the administrative record, see note 12, infra, said to document “the degree to which WEFM has its own identity and audience loyalty” and makes unique contributions to diversity “significantly different from and in addition to those of WFMT.”
. Alexander Tánger, who organized GCC, purchased all 500 of its common shares at $1.00 per share. The company then got an unsecured loan of $1,250,000 from General Cinema, of which $1,000,000 was to be used to purchase WEFM. General Cinema purchased GCC’s preferred stock for $50,000.
. The Committee did allege that “WEFM is not operated by a separate corporation. Petitioners have not been apprised of, nor have they had the opportunity to examine, Zenith’s records to determine the method under which Zenith allocates expenses and revenues or includes in Zenith’s income revenues attributable to the use of Station WEFM by Zenith for advertising its products.”
. The Opinion issued for four Commissioners; a fifth joined in the result, one did not participate, and one (Johnson) dissented in a separate opinion.
. In support of this position, the FCC quoted from and relied on its then recent decision in Twin States Broadcasting, 35 FCC 2d 969 (1972), which we later reversed and remanded for a hearing under the doctrine of Citizens Committee of Atlanta. Citizens Committee to Keep Progressive Rock v. FCC, 156 U.S.App.D.C. 16, 478 F.2d 926 (1973).
. The Commission was also of the view that “no substantial question exists regarding the WEFM operational losses,” but was quick to add that the existence vel non of such a question was not critical to its decision inasmuch as financial viability was not a material consideration outside of the unique format context. 38 FCC 2d at 845 & n. 12.
The FCC rejected the Committee’s attack on the adequacy of the public notice required to be given under its rules. With respect to the Committee’s November 20 complaint requesting that station WEFM be dedicated to classical music as long as a qualified licensee could be found to operate it, the FCC relied on Section 310(b) of the Communications Act, 47 U.S.C. § 310(b), which prohibits it from considering whether the public interest might be served by assignment of a license to any person other than the proposed transferee before it, and reiterated its view that “the choice of a particular musical format is primarily a business judgment which a licensee or applicant must make in determining whether he can successfully operate the station and render service to his community of license.” 38 FCC 2d at 848. Accordingly, it held that a hearing on the complaint was not warranted.
. The Committee offered to present at a hearing a study then in progress of the value of WEFM’s programming in order to assist the FCC in weighing the public interest. See D. Bogue, The Radio Audience for Classical Music: The Case of WEFM, Chicago (Communication Laboratory, Community and Family Study Center, The University of Chicago, 1973). '
. The dispute over WNIB’s suitability as a substitute reflects a difference in premises as to the relevant service area. The FOO considered service to the city of license of primary importance, thereby mooting the relevance of the Committee’s contention that WNIB serves at most 20% of WEFM’s listener area, which has a radius from Chicago of about 100 miles. See Section II. B. 1, infra.
Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 FCC 2d 650 (1971).
. The Committee also challenges on First Amendment grounds Zenith’s refusal, sanctioned by the FCC’s interpretation of its own regulations, to grant the Committee’s request that the question of Zenith’s format change be discussed on WEFM. Our disposition of the ease makes it unnecessary to reach this point, but, as the Committee notes, it is closely related to the notice problem and could likewise be usefully reconsidered by the FCC in this or another case. See note 34, infra. Neither do we reach the Committee’s claim that the FCC failed to make a public interest finding in haee verba, as required in Joseph v. FCC, 131 U.S.App.D.C. 207, 404 F.2d 207 (1968), where the FCC acted without issuing the kind of opinion from which it could fairly be inferred that it had “taken a ‘hard look’ at the salient problems.” Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971).
. Assignment applications are subject to the same standards and treated in the same manner as initial license applications unless they do not entail a substantial change in ownership or control. 47 U.S.C. § 308, 309 (a); see id. § 309(e) (2) (B).
. The FCC’s failure to designate an unopposed application for a hearing sua sponte would not, of course, be reviewed, since there would be no party in interest to seek review.
. As Judge Tamm has said, “We suspect, not altogether facetiously, that the Commission would be more than willing to limit the precedential effect of Citizens Committee [of Atlantal to cases involving Atlanta classical music stations.” Citizens Committee to Keep Progressive Rock v. FCC, 156 U.S.App.D.C. 16, 478 F.2d 926, 930 (1973).
. Accord, Hartford Communications Committee v. FCC, 151 U.S.App.D.C. 354, 467 F.2d 408 (1972) (“format” cases distinguished on basis of FCC’s inference that a proposed change involving greater emphasis on religious programming in an expanded overall schedule that did not reduce service of other types did not constitute a format change).
. For a full explication of the substantiality criterion, see Stone v. FCC, 151 U.S.App.D.C. 145, 466 F.2d 316, 321-323 (1972).
. Mere inspection of the map indicates that either this statement or the map is not entirely accurate. See 40 FCC 2d at 228.
. The FCC’s mandate to approve applications consistent with the public interest, and only such applications, is not dependent upon the assiduousness of intervenors such as the Committee. An agency charged with regulation in the public interest cannot abdicate its responsibility, preferring for itself the role of an umpire between the regulated industry and public protestants. Office of Communication, United Church of Christ v. FCC, 138 U.S.App.D.C. 112, 425 F.2d 543 (1969) (Burger, J.) ; see Greene County Planning Bd. v. FPC, 455 F.2d 412 (2d Cir. 1972). Even in the absence of intervention, the FCC is obliged to be certain it is not dealing with a format change affected with the public interest by reason of the uniqueness of the format to be abandoned. Public silence, after adequate public notice, would provide such assurance, just as “public grumbling [of] significant proportions,” Progressive Rook, supra, raises the question.
. The Committee variously puts WNIB’s service area at 15% or “at best” 20% of that of WEFM, but it is not clear whether these percentages represent potential audience figures or geographical area, or whether they take account of anticipated improvements. GCC’s opposition to petition for reconsideration refers to an attached “engineering affidavit” (not in the Joint Appendix) indicating that WNIB serves all of the city of Chicago and 41% of the total area served by WEFM, and predicting that it could be improved to serve “an area almost comparable in size to that of WEFM.” J.A. 191. On the view that the FCC took of the matter, the horizons of which were drawn at the boundaries of the city of Chicago, these differences were not in need of resolution.
. Areas that receive a distant station under unusual or occasional circumstances or because of fortuitous physical phenomena are not contemplated by this discussion, which relates directly to the problem of metropolitan areas that encompass a major city to which stations are typically licensed.
.We note that GCC’s Ascertainment of Community Interests, Needs and Problems, which the FCC accepted as adequate, takes as the relevant “community” an area said to be coextensive with “the essential broadcast coverage area of WEFM and, hence, it is the area which WEFM serves.” J.A. 369. This area encompasses six counties in Illinois and four in Indiana. Its Community Leader Survey encompassed “the Chicago Metropolitan Area,” with the exception of cities within a 75-mile radius of Chicago that are themselves cities of license for a radio station (such as Milwaukee, Wisconsin; Kockford, Illinois; and Gary, Indiana). Its “Study of Desired Radio Programming and Desired Music in Chicago and the Chicago Metropolitan Area,” also said to be approximately coextensive with the area reached by WEFM’s signal, is based on the musical preferences of persons in six Illinois and four Indiana counties.
. GGO’s own preference survey of the “kind of music respondents like to hear” reveals that 18% preferred “rock and roll” and 18% preferred “serious music (classical).” J.A. 354. If WEFM’s format is unique, therefore, its abandonment in favor of rock music would not bring service to a larger segment of the public and would leave that part of the classical music audience beyond the reach of WNIB without any service, except as WFMT may be found to fill the void.
. The FOG describes the proposed donee as a non-profit corporation operating educational television stations in Chicago. Its membership was said to be “composed of some 38 colleges, universities, schools, libraries, etc., as members and some 53 other educational, religious, research, civic, and cultural organizations as associate members.” 21 FCC 2d at 403 (1970).
. In addition to the passage quoted in the text, the FCO stated that “[a] grant of the application as amended, will make possible the continuation of a unique and valuable fine arts program service. . . . ” Waiver of its interim policy against acting on applications filed during the pendency of its rule making on the subject of common ownership was predicated on “the overriding importance of promoting e&ueational broadcasting in the public interest.” (Emphases added.)
.In addition, we refer to Zenith’s 1970 application for renewal of its current license for WEFM. See J.A. 115. Question 8 of the application asks “how and to what extent (if any) applicant’s station contributed during the past license period to the over-all diversity of program services available in the area or communities served.” Zenith responded as follows:
There are upwards of 25 commercial FM stations in the Chicago, area. Only one major station other than WEFM offers classical music to the extent that we do. Adherence to our classical music format provides a choice for lovers of fine music. Changing our basic programming would inevitably lessen the over-all diversity of program services available in this area.
From the WNIB program guide, made a part of the record in this case, Zenith’s reference would appear to be to that station, thus indicating that Zenith itself did not consider WFMT a “classical music” station. In any event, WEFM’s representation to the FCC that its present format enhances diversity requires explanation if abandonment
. The difference is explained by the fact that Zenith had offsetting income from its other enterprises and thus was able to deduct its losses in determining taxable income, thereby reducing tax liability by approximately one half the amount of its broadcasting loss.
. Cf. Bilingual Bicultural Coalition of Mass Media, Inc. v. FCC, 160 U.S.App.D.C. 390, 393, 492 F.2d 656, 659 (1974).
. The authority granted the FCC in Section 309(d)(2) to dispose of a petition without a hearing was directed at “petitions which were of no real consequence.” H.Rep.No.1800, 86th Cong., 2d Sess. 12 (1960), U.S.Code Cong. & Admin.News, p. 3520. See Hudson Valley Broadcasting Corp. v. FCC, 116 U.S.App.D.C. 1, 320 F.2d 723, 727 (1963).
. 40 FCC 2d 230. There is no doubt that the Commission has adopted the view there expressed. It appears in the Programming Policy Statement, 25 Fed.Reg. 7293 (1960), and is quoted at length in the FCC’s brief to this court.
. See, in this regard, Judge Wilkey’s recent opinion for the court in Hawaiian Telephone Co. v. FCC, 162 U.S.App.D.C. 229, 498 F.2d 771, 776-777 (1974).
. It cannot be otherwise when it is remembered that the radio channels are priceless properties in limited supply, owned by all of the people but for the use of which the licensees pay nothing. If the marketplace alone is to .determine programming format, then different tastes among the totality of the owners may go ungratified. Congress, having made the essential decision to license at no charge for private operation as distinct from putting the channels up for bids, can hardly . be thought to have had so limited a concept of the aims of regulation. In any event, the language of the Act, by its terms and as read by the Supreme Court, is to the contrary.
. Our disposition of this case makes it unnecessary presently to measure the adequacy of the FCC’s minimum notice requirement, which need not alert the public directly to the fact that a proposed license assignment encompasses a format change, against the constitutional rule that, “within the limits of practicability,” due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Trust Co., 339 Ü.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). We have had previous occasion to note that “the question as to the adequacy of the notice does not evoke the principle of judicial deference to administrative expertise,” Ridge Radio Corp. v. FCC, 110 U.S.App.D.C. 277, 292 F.2d 770, 773 (1961), but we will give the question full attention only in a case where constitutional considerations cannot be avoided. The FCC’s present notice requirement may in any event be so related to its expressed reluctance to consider matters of format, much less raise the “ominous threat of a hearing,” that reexamination by the agency in light of this opinion’s explication of the public interest standard will make such consideration unnecessary in the future as well.
Concurrence Opinion
(concurring in the result):
As a member of the original panel in this case, I voted to sustain the Commission’s action. At that time, I was
In light of this rehearing en banc it is particularly appropriate to expand upon the First Amendment concerns which I briefly noted in the original panel opinion. For the present at least, this Court has exclusive jurisdiction over appeals from FCC licensing decisions.
The full breadth of the principle the Court enunciates today requires an extensive review of FCC programming policy and the First Amendment, a review which may take me beyond the specific issues presented by this case. Just as the Court views the authorization
For the convenience of the reader, I shall briefly outline the structure of this opinion. In Part I, I address the traditional schema of the First Amendment and the issue of what regulatory actions that schema enjoins upon the FCC. (Pp. 4-10) In Part II, I consider possible developments of First Amendment doctrine beyond this traditional schema in the area of telecommunications and two reasons which may support such a development. (Pp. 10-15) In Part III,.I explore present FCC programming policies and suggest the extend to which those policies are justified by the development of First Amendment doctrine discussed in Part II. (Pp. 16-30) Finally, in Part IV, I consider the present case in light of the preceding discussion. (Pp. 30-32)
I.
I shall begin with the role of antitrust analysis in telecommunications law. Although there was for a time some doubt about the proposition, it is now settled that the Commission may, indeed, must, consider diversification of ownership in the licensing of broadcast frequencies.
These guides, like the First Amendment, rest “on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public. . . . ” Diversification, according to the Commission, “protects the public from being placed in the position of having to depend upon a single or monopolistic source for its information about current affairs.”8
For conceptual purposes, diversification of ownership represents a policy supportive of unrestricted freedom of the press, in particular the encouragement of the widest possible range of journalistic and artistic
While the policy of diversification is supported by both antitrust considerations and these First Amendment considerations, one must not suppose that these two supports are complementary. A successful policy favoring competition for advertising dollars, as the Court suggests, may well result in, not creative journalism, but commercial pabulum directed toward those whose incomes are most often spent on the advertiser’s wares.
There is thus no inevitable confluence between diversified ownership and quality journalism. Rather the proposition I spoke of in the Clarksburg case 20 years ago rests on an irreducible principle not subject to verification: to paraphrase Learned Hand, a multitude of tongues, completely unrestricted in speech, will somehow over the long run produce a multitude of ideas expressive of the culture and interest of all the people, such that national political debate and artistic achievement will flourish.
So, while it may be true that the licensee’s “business judgment”, to use former Chairman Burch’s term, is not necessarily or empirically supportive of the goal of a multitude of ideas, it is part and parcel of unrestricted freedom of the press. We would be confronted with serious First Amendment issues indeed if the Commission were ever to hold that otherwise protected
It would seem that diligent efforts to disperse ownership of the electronic media and disperse control over programming would adequately protect First Amendment interests. However, for various reasons including the lack of diligence of the FCC and the nature of the electronic communications industry, concentration of ownership remains a serious problem.
II.
I have said that the Commission can and should attempt through the licensing process to ensure a multitude of tongues in order to provide the people with a multitude of ideas. This authorization is founded on values contained in the First Amendment and is thus presumed to be part of the FCC’s “public interest” standard.
If Red Lion holds that First Amendment values authorize FCC actions designed to directly increase diversity of ideas, then Red Lion might in the appropriate case permit judicial intervention to require the FCC to promote diversity of ideas through means other than increases in the number of speakers. This is consonant with the structure of the Act since the FCC has no special expertise’in the First Amendment. This
I first digress to consider what reasons might justify this movement away from our traditional notions of the First Amendment. The most obvious reason is that there are in terms of present technology
One might note another area in which an unrestricted adherence to a multiplicity of voices alone may cut against constitutional values. I have previously noted the “involuntary” nature of some television and radio listening.
The combination of limited access and the particular nature of radio and television communications now poses the question whether in practice our complete reliance on a multitude of voices to promote First Amendment values is justified. I am beginning to have some trouble with Mr. Justice Douglas’ view that this reliance is justified.
III.
The first project for consideration if we wish to regulate programming to achieve diversity is to establish what sort of failures of diversity will give rise to the need for regulation. Once having established that or having confronted a reasonable probability that left to their own devices the limited number of licensees will not produce a true multiplicity of ideas, there are two possible paths to explore. First, we might establish duties of inquiry on the licensee which, if exercised, will cause the collection of information potentially productive of diversity. Second, we can control, deter or punish certain failures to produce diversity. These two approaches are double-edged, in that they both define an absence of diversity and remedy that absence.
The FCC has in fact implemented the first approach by requiring licensees or applicants to survey the community they wish to serve to develop information on tastes and interests within the community. This is the so-called “ascertainment” requirement.
The FCC has also implemented to some extent the second approach discussed above and has in the process created grave First Amendment issues. First and foremost, in regard to the fairness doctrine, the Commission has not only placed duties of accuracy on the licensee but has also required the licensee to present “both sides” of controversial issues of public importance. This duty is applicable even if the broadcaster’s reasoned judgment is that the “other side” has no merit.
I think it instructive at this point to distinguish between, on the one hand, petitions to deny
Despite the seemingly persuasive force of this argument, it must give way to the holding in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). That case upheld the personal attack and editorial reply aspects of the “fairness doctrine” as consistent with the First Amendment. How far beyond this the case car
The comparative licensing proceeding strikes me as a generically different situation. Here the scarcity rationale is appropriate.
This Court and the FCC have consistently reviewed program proposals in ruling on mutually exclusive broadcast applications.
It would seem that authorizing this kind of limited and specific consideration of content does not threaten the licensee with censorship. It would only adduce one factor which must be considered in the difficult and sensitive task of allocat
1 do not wish to leave the impression from this discussion that I approve the present conduct of comparative hearings either on proposed programming issues or on other issues. Indeed, my view is that the comparative hearing process in the FCC is at present seriously flawed due to a lack of standards. Furthermore, I don’t mean to argue that proposed programming should always be considered in comparative hearings. Rather, I am only stating that if we find sufficient failure in the traditional schema of the First Amendment to justify direct regulation designed to achieve greater diversity, then the proper arena for that regulation is the comparative hearing, as flawed and arbitrary as it is at present. In a perfect world we would have no cause to ever inquire into programming.
In the preceding paragraphs I have attempted a reconciliation of the existing system of telecommunication regulation and the developing schema of the First Amendment. I don’t want to leave the impression that this attempt leaves me entirely satisfied; far from that, the more I study the relation of these two areas the more uncertain and troubled I become. Particularly intractible to my mind is the relation of modern notions of “chilling effect” or “breathing space” for First Amendment freedoms and a comprehensive system of governmental licensing of speakers. Indeed, a plausible argument can be made that the entire Federal Communications Act could not survive the test of Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969)
I am led to the conclusion that the notion of “chilling effect” must be substantially revised if First Amendment jurisprudence is to permit direct action to increase diversity of ideas. Instead of being an absolute bar to governmental licensing of speakers, perhaps the “chilling effect” doctrine should be the basis for intensive judicial oversight of FCC enforcement of policies designed to increase diversity.
The life of the law in this area is thus surely not logic. I would be less concerned if I were sure it was experience; however, surveying the field after twenty-five years of work, I have serious doubts that the experience of non-regulation or the history of regulation really were the cause of all this startling, even radical, departure from our traditions. Mostly, we are today reasoning backward, developing post hoc rationalizations which both reaffirm, and hopefully limit, the intrusion on First Amendment values. My review of this area raises some very fundamental questions about our true commitment to the system of freedom of expression. The fragility of even such basic traditions as free speech is always most evident when we are asked to “extend” it to a heretofore unknown situation which is actually indistinguishable from the present context of the tradition. For example, it took us until 1967 to discover that wiretapping was a “search”
Having said all this does not mean I am ready to sweep away forty years of telecommunication regulation. The egg is too thoroughly scrambled for judicial unscrambling. Ultimate redress must rest with the Congress, the institution in our society which may legitimately transform telecommunications regulation to the degree necessary to truly accommodate First Amendment values. Congress would have several options — from altering the system of licenses from private
IV.
I turn now to the present case where petitioners seek to prevent Zenith from assigning its license to GCC. Because of § 310(b), a very unwise statute in my view, a license assignment is a unique proceeding since the Commission is prohibited by that section from considering other applicants for the frequency under review. It thus would seem that this license assignment is a non-comparative proceeding and, pursuant to the views expressed in Part III above, the petition to deny should be denied without a hearing since the FCC has no authorization to consider program content in a non-comparative hearing. However, our decision in Citizens Committee of Atlanta suggests, and I follow it in this case, that a license assignment is comparative in that the assignee and the assignor are compared.
If Zenith is not to be considered a comparative applicant, I believe that the FCC has no authority to inquire into the diver
On this basis I concur in the Court’s mandate.
. See Zenith Radio Corp., 40 F.C.C.2d 223, 230 (1973) (Additional Views of Chairman Burch, in which Comm’rs R. E. Lee, H. R. Lee, Reid, Wiley & Hook join); cf. id. 38 F.C.C.2d 838, 846 (1972).
. Citizens Comm. to Save WEFM v. FCC, 165 U.S.App.D.C. 185 at 191, 506 F.2d 246 at 252 (1973), (Bazelong, C. J.).
. I do not read the Court in this case as ruling on the weight to be given considerations of diversity or on the degree of increase or decrease in diversity which requires denial of a petition for assignment of a hearing. Most importantly, I do not read the Court as foreclosing inquiry into the proper proceeding for consideration of diversity, i. e. whether diversity should be considered in both comparative and non-comparative proceedings.
. Judge Robb joined only in Part II of jny opinion for the original panel which he sets forth in his dissent herein. But that Part must be read in connection with Parts III and IV of my panel opinion which enunciated my concern that regulation resigned to achieve diversity raised certain First Amendment issues and in which Judge Robb did not join.
I also join in the Court’s implicit holding that § 309 (e) may require a hearing on mixed questions of fact and law where the law is not settled and the facts might not otherwise require a hearing. Cf. Citizens TV Protest Comm. v. FCC, 121 U.S.App.D.C. 50, 348 F.2d 56 (1965). I particularly join in the intimation in note 35 of the Court’s opinion and would state even more strongly than the Court that the FCC procedural policy in this area needs thorough reconsideration.
. 47 U.S.C. § 402(b) (1970).
. Citizens TV Protest Comm. v. FCC, 121 U.S.App.D.C. 50, 348 F.2d 56 (1965); Clarksburg Publishing Co. v. FCC, 96 U.S.App.D.C. 211, 225 F.2d 511 (1955). See United States v. Midwest Video Corp., 406 U.S. 649, 665-670, 92 S.Ct. 1860, 32 L.Ed.2d 390 (1972); National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943); United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956); Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971); Mansfield Journal Co. v. FCC, 86 U.S.App.D.C. 102, 180 F.2d 28 (1950). See also Pinellas Broadcasting Co. v. FCC, 97 U.S.App.D.C. 236, 241, 230 F.2d 204, 209, cert. denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956) (Bazelon, J. dissenting); Scripps-Howard Radio v. FCC, 89 U.S.App.D.C. 13, 189 F.2d 677, cert. denied, 342 U.S. 830, 72 S.Ct. 55, 96 L.Ed. 628 (1951).
. See 47 C.F.R. §§ 73.131-.138; .231-.240; .35; .658; .636 (1974) ; FCC Dkt. #18110; Hale v. FCC, 138 U.S.App.D.C. 125, 425 F.2d 556 (1970); Frontier Broadcasting Co. 27 F.C.C.2d 486 (1971). See also United States v. Midwest Video Corp., 406 U.S. 649, 665-670, 92 S.Ct. 1860, 1869-1871, 32 L.Ed. 2d 390 (1972); Metropolitan Television Co. v. FCC, 110 U.S.App.D.C. 133, 289 F.2d 874 (1961); Carter Mountain Transmission Corp. v. FCC, 116 U.S.App.D.C. 93, 321 F.2d 359, cert. denied, 375 U.S. 951, 84 S.Ct. 442, 11 L.Ed.2d 312 (1963); Carroll Broadcasting Co. v. FCC, 103 U.S.App.D.C. 346, 258 F.2d 440 (1958); Simmons v. FCC, 83 U.S.App.D.C. 262, 169 F.2d 670, cert. denied, 335 U.S. 846, 69 S.Ct. 67, 93 L.Ed. 396 (1948); Chicago-land TV Co., 11 F.C.C.2d 119, 136-137 (1967) (Hearing Exam.) ; Note, Toward Community Ownership of Cable Television, 83 Tale L.J. 1708 (1974). The FCC also considers ownership diversification as a factor in comparative licensing proceedings. See Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394-396 (1965) ; cases cited note 6 supra; Note, Diversification and the Public Interest: Administrative Responsibility of the FCC, 66 Vale L.J. 365 (1957).
. Clarksburg Publishing Co. v. FCC, 96 U.S. App.D.C. 211, 218, 225 F.2d 511, 518 (1955), citing Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945) and Cowles Broadcasting Co., 10 P & F Radio Reg. 1289, 1314 (1954). See also TV 9, Inc. v. FCC, 161 U.S.App.D.C. 349, 495 F.2d 929, 935-938 (1973).
. There can be little doubt at this late date that artistic or entertainment programming is within the scope of the First Amendment. See Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974 ; Jacobellis v. Ohio, 378 U.S. 184, 191, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Brennan, J.); Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Chafee, Book Review, 62 Harv.L.Rev. 891, 896 (1947). See also United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948); Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586 (1946); S. Morison, Oxford History of the American People, 292, 472, 912-913 (1965).
. See Banzhaf v. FCC, 132 U.S.App.D.C. 14, 32 n. 76, 405 F.2d 1082, 1100 n. 76 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969). Furthermore, too much diversification of ownership may result in the production of licensees who do not have sufficient capital to create high quality entertainment or public affairs programming. See also Levin, Competition, Diversity and the Television Group Ownership Rules, 70 Colum. L.Rev. 791 (1970).
. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 2839, 41 L.Ed. 2d 730 (1974).
. United States v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y.1943), aff’d, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945). See Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 353-354, 473 F.2d 16, 64-65 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973); Business Executives’ Move for Vietnam Peace v. FCC, 146 U.S.App.D.C. 181, 193-197, 450 F.2d 642, 654-658 (1971), rev’d sub nom., Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973).
.While the “market place of ideas” justification for unrestricted speech is the most consistently applied, other justifications for unrestricted speech are also persuasive. As Professor Emerson has suggested, unrestricted speech is inextricably bound up in an individual’s search for self-fulfillment and truth. See T. Emerson, The System of Freedom of Expression 6-7 (1970), applied in part, Banzhaf v. FCC, 132 U.S.App.D.C. 14, 34, 405 F.2d 1082, 1102 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969); Business Executives’ Move for Vietnam Peace v. FCC, 146 U.S.App.D.C. 181, 194, 450 F.2d 642, 655 (1971), rev’d sub nom., Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973). Furthermore, the right of unrestricted speech seems inherent in elementary notions of physical freedom, such as freedom to travel, to use contraceptives, to have abortions, to worship the god of one’s choice, to learn a foreign language, to send one’s children to private schools, to associate freely with persons of one’s choice and to hold property and engage in economic activity. See Tribe, Forward: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv.L.Rev. 1, 33-50 (1973) ; Pound, A Survey of Social Interests, 57 Harv.L.Rev. 1, 33-35 (1943). Finally both of these two alternative justifications for unrestricted speech are buttressed by reference to the common law principle that no person should be punished unless he or she has performed an act. See Robinson v. California, 370 U.S. 660, 678-679, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (Harlan, .1. concurring) ; Ex parte Burford, 7 U.S. (3 Cranch,) 448, 2 L.Ed. 495 (1806). These notions of free speech as part of basic human dignity are not fully applicable to the operations of governmental licensees in the broadcast field. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).
. Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94, 145, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973) (Stewart, J. concurring).
. Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 356, 473 F.2d 16, 67 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973) (Bazelon, C. J. dissenting).
. Of course not all speech is protected. See id., 153 U.S.App.D.C. at 354 n. 7, 473 F.2d at 65 n. 7. Particularly significant for telecommunications, advertising is not considered to be protected speech. Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973).
. See Hannegan v. Esquire, Inc., 327 U.S. 146, 157-158, 66 S.Ct. 456, 90 L.Ed. 586 (1946). Cf. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (Brennan, J. dissenting).
. See House Comm, on Interstate and Foreign Commerce, Report on Network Broadcasting, I-I.R.Rep.No.1297, 85th Cong., 2d Sess. (1958). On FCC inconsistency and evasion in enforcing the diversification guides, see Pinellas Broadcasting Co. v. FCC, 97 U.S.
.See sources cited note 40 infra. The concept of “licensee responsibility” has been employed recently in a manner strongly suggestive of censorship. See Yale Broadcasting Co. v. FCC, 155 U.S.App.D.C. 390, 399, 478 F.2d 594, 603, cert. denied, 414 U.S. 914, 94 S.Ct. 211, 38 L.Ed.2d 152 (1973) (Statement of Bazelon, C. J.). For a definitive discussion of the problem of network domination of programming, see Federal Communications Comm’n, Network Program Procurement, H.R.Rep.No.281, 88th Cong., 1st Sess. (1963) ; Barrow, The Attainment of Balanced Program Service in Television, 52 Va. L.Rev. 633, 660-663 (1966).
. See generally Crowder v. FCC, 130 U.S. App.D.C. 198, 201-202, 399 F.2d 569, 572-573, cert. denied, 393 U.S. 962, 89 S.Ct. 400, 21 L.Ed.2d 375 (1968), aff’g, Harriman Broadcasting Co., 9 F.C.C.2d 731 (1967); 47 C.F.R. § 1.597 (1973); Moline Television Corp., 31 F.C.C.2d 263, 297-298 (1971) (Johnson, Comm’r, dissenting).
. Cf. Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586 (1946); American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90 (1902); cases cited note 8 supra.
. See also Business Executives’ Move for Vietnam Peace v. FCC, 146 U.S.App.D.C. 181, 450 F.2d 642 (1971), rev’d sub nom., Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973).
. National Broadcasting Co. v. United States, 319 U.S. 190, 217, 63 S.Ct. 997, 1010, 87 L.Ed. 1344 (1943).
. Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94, 105-114, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973).
. 47 U.S.C. § 326 (1970).
. Compare the Court’s formulation with tlie language of Red Lion Broadcasting Co. v. ECC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1807, 23 L.Ed.2d 371 (1969) : “It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.”
. I have recently noted that technological changes, particularly the emerging cable television technology, may eliminate these limits on the FCC’s ability to increase the number of licensees serving a particular market. Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 364-365, 473 F.2d 16, 75-76 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973) (Bazelon, C. J. dissenting). See also Robinson, The FCC and the First Amendment, 52 Minn.L. Rev. 67, 157-161 (1967) ; note 29 infra.
. The FCC is required by law to allocate scarce frequencies by a licensing process. 47 U.S.C. §§ 301-310 (1970). The financial requirements have been established by the Commission in the exercise of its discretion pursuant to the licensing power. See Ultravision Broadcasting Co., 1 F.C.C.2d 544 (1965); Chicagoland TV Co., 11 F.C.C.2d 96 (Rev. Bd.1967).
.National Broadcasting Co. v. United States, 319 U.S. 190, 210-213, 63 S.Ct. 997, 87 L.Ed. 1344 (1946). Of course, Congress could have chosen a different scheme to rectify this anarchy which would have permitted the FCC to increase the number of speakers ad infinitum. If Congress had chosen to make the licensee a common carrier, then there would be no scarcity since the only scarcity in broadcasting is in the freguenoies; there is almost no scarcity of broadcast time. Thus, by permitting access to the broadcasting facilities by anyone who can pay the charge, Congress could have avoided most if not all of the treacherous problems courts must face in reconciling the First Amendment and the present system of telecommunication regulation. I note with some interest that the Commission has under consideration proposals to make cable television at least partially into a common carrier. See 47 C.F.R. § 76.251 (1973).
. gee notes 18-20 supra.
. Banzhaf v. FCC, 132 U.S.App.D.C. 14, 32-33, 405 F.2d 1082, 1100-1101 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969), cited in Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94, 128, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973).
. See Brandywine-Main Dine Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 368 n. 65, 473 F.2d 16, 79 n. 65 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973); Banzhaf v. FCC, 132 U.S.App.D.C. 14, 33 n. 77, 405 F.2d 1082, 1101 n. 77 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969); Bed Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386-387 & n. 15, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), citing Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949).
The particular nature of telecommunications largely presents a conflict between privacy interests and free speech. See Poliak v. Public Utilities Comm’n, 89 U.S.App.D.C. 94, 191 F.2d 450 (1951), rev’d, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952). However, the conflict betwen privacy and the First Amendment is not limited to telecommunications. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 3008-3010, 41 L.Ed.2d 789 (1974); Hunter v. Washington Post, Civil No. 8865-73 (D.C.Super. July 12, 1974) (newspaper cannot print the name of rape victims) ; Note, Privacy in the First Amendment, 82 Yale L.J. 1462 (1973).
I do not believe that the pervasive, intrusive nature of telecommunications offers the FGC carte blanche for regulation. See Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. at 368, 473 F.2d at 79 (Bazelon, C. J. dissenting); Robinson, supra note 27 at 154-56. Rather each regulatory action must be measured against the nature of telecommunications to ensure that the action in the particular case is justified by that nature.
. See Columbia Broadcasting Systems, Inc. v. Democratic National Comm., 412 U.S. 94, 148, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973) (Douglas J. concurring).
. Another area in which the specter of failures in the traditional First Amendment structure has caused some movement away from the strict rule of a multitude of tongues unrestricted in speech to some direct actions designed to promote diversity of ideas is that of money and the electoral process. See generally Local 562, Pipefitters v. United States, 407 U.S. 385, 92 S.Ct. 2247, 33 L.Ed. 2d 11 (1972); United States v. International Union, Auto Workers, 352 U.S. 567, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957). Cf. United States Civil Service Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). Perhaps, Red Lion’s narrow holding can be explained as an extension of these cases. Compare note 56 infra. I have recently struggled with the difficult constitutional problems in this area, see American Civil Liberties Union v. Jennings, 366 F.Supp. 1051 (D.D.C.1973), prob. juris.
. See Primer on Ascertainment of Community Problems by Broadcast Applicants, 36 Fed. Reg. 4092 (F.C.C.1971); Suburban Broadcasters, 30 F.C.C. 1021 (1961), aff’d sub nom., Henry v. FCC, 112 U.S.App.D.C. 247, 302 F.2d 191, cert. denied, 371 U.S. 821, 83 S.Ct. 37, 9 L.Ed.2d 60 (1962) (Bazelon, C. J.). This requirement can be administered in a manner which suggests actual programming control, see Lee Roy McCourry, 2 P & F Radio Reg.2d 895 (1964), discussed Robinson, supra note 27, at 115, 123-124, but on its face, the requirement seeks only to force the licensee to base his or her decisions on a complete and accurate record.
.The meaning of this term is a subject of intense debate, compare Neckritz v. FCC, 163 U.S.App.D.C. 409, 502 F.2d 411 (1974) with Friends of the Earth v. FCC, 146 U.S.App.D.C. 88, 449 F.2d 1164 (1971), but it apparently does not include entertainment programming. See Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 40 F.C.C. 598, 600-604 (1964). Of course, some entertainment programming may specifically raise political issues, which are “controversial”, but normally the choice between classical’ music and rock music would not be a “controversial issue.” Cf. George D. Corey, 25 P & F Radio Reg.2d 437 (1972); Children Before Dogs, 25 P & F Radio Reg.2d 411 (1972). I have serious doubts about the validity and rationality of current definitions of “controversiality” and do not in this opinion mean to approve those definitions.
. See Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1254-1255 (1949); Columbia Broadcasting System, Inc., 20 F.C.C.2d 143 (1969); Columbia Broadcasting System, Inc., 30 F.C.C.2d 150 (1971). See generally Note, The First Amendment and Regulation of Television News, 72 Colum.L.Rev. 746 (1972).
. See Trinity Methodist Church, South v. Federal Radio Comm’n, 61 U.S.App.D.C. 311, 62 F.2d 850, cert. denied, 288 U.S. 599, 53 S.Ct. 317, 77 L.Ed. 975 (1932). Cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). See also Palmetto Broadcasting Co., 23 P & F Radio Reg. 483 (1961), aff’d sub nom. on other grounds, Robinson v. FCC, 118 U.S.App.D.C. 144, 334 F.2d 534, cert. denied, 379 U.S. 843, 85 S.Ct. 84, 13 L.Ed.2d 49 (1964) (reasonable care in ascertaining the nature of the
. See generally Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 473 F.2d 16 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973); Applicability of the Fairness Doctrine in the Handling of Controverial Issues of Public Importance, 40 F.C.C. 598 (1964).
. See KFKB Broadcasting Ass’n v. Federal Radio Comm’n, 60 U.S.App.D.C. 79, 47 F.2d 670 (1931). Cf. Banzhaf v. FCC, 132 U.S. App.D.C. 14, 405 F.2d 1082 (1968), cert denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969); Gordon Broadcasting Co., 24 P & F Radio Reg. 315 (1962); Commercial Practises of Broadcast Licensees, 1 P & F Radio Reg.2d 1606 (1964) (FCC actions to prevent over-commercialization of broadcast frequencies). This sort of regulation would seemingly be justified by Pittsburg Press Co. v. Human Relations Comm’n, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) and cases cited therein. See also Objectionable Loudness of Commercials, 5 P & F Radio Reg.2d 1621 (1965) ; sources cited note 32 supra.
Another aspect of this duty is the licensee’s duty not to delegate its control over programming to the networks, a duty reflected in the Prime Time Access Rule, 47 C.F.R. § 73.658 (1974), the prohibition on chain broadcasting, National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed.2d 1344 (1943), the prohibition on network representation of affiliated stations in the sale of non-network advertising time, Metropolitan Television v. FCC, 110 U.S.App.D.C. 133, 289 F.2d 874 (1961) and the requirement of local origination of CATV programming, United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390 (1972). See Simmons v. FCC, 83 U.S.App.D.C. 262, 169 F.2d 670, cert. denied, 335 U.S. 846, 69 S.Ct. 67, 93 L.Ed. 396 (1948); Churchill Tabernacle v. FCC, 81 U.S.App.D.C. 411, 160 F.2d 244 (1947); Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1248 (1949).
. Cf. Associated Press v. NLRB, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953 (1937); Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 80 L.Ed. 660 (1936); Buckley v. American Fed’n of Television & Radio Artists, 496 F.2d 305 (2d Cir. 1974).
. See Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249-50 (1949). Of course, the licensee’s judgment as to whether a particular program is controversial and thus whether he must present more than one “side” is reviewable by the FCC only under a standard of reasonableness. See National Broadcasting Co. v. FCC, No. 73-2256 (D.C.Cir. Sept. 27, 1974). However, the problem of ascertaining what are the various “sides” to a particular issue and the problem of being forced to air that “side” remain an inhibiting element.
. See H. Geller, The Fairness Doctrine in Broadcasting 19-20 (Rand Corp. 1973), discussing Letter to the Honorable Oren Harris, 40 F.C.C. 582 (1963); Tri-State Broadcasting Co., 40 F.C.C. 508 (1962). For recent examples, see National Broadcasting Co., 16 F.C.C.2d 956 (1969); Scalia, Don’t Go Near the Water, 25 Fed.Com.B.J. 111 (1972).
. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 373-375, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). The “equal time” requirement is specifically mandated by 47 U.S.C. § 315 (1970). ,
. See Citizens Communication Center v. FCC, 145 U.S.App.D.C. 32, 44, 447 F.2d 1201, 1213 (1971), clarified, 149 U.S.App.D.C. 419, 463 F.2d 822 (1972); Policy Statement Concerning Comparative Hearings Involving Regular Renewal Applicants, 22 F.C.C.2d 424 (1970); Goldberg, A Proposal to Deregulate Broadcast Programming, 42 Geo.Wash.L.Rev. 73, 83-84 (1973). See also Network Programming Inquiry, 25 Fed.Reg. 7291 (F.C.C. 1960), incorporated, Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 397 (1965); Note, Regulation of Program Content by the FCC, 77 Harv.L.Rev. 701, 704-06 (1964).
. 141 U.S.App.D.C. 109, 436 F.2d 263 (1970).
. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974).
. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).
. See 47 U.S.C. § 309(d)(1) (1970); 47 C.F.R. § 1.580(1) (1973).
. See Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 40 F.C.C. 598, 600 (1964).
. See 47 C.F.R. § 1.591(a)(1) (1973); Citizens Communication Center v. FCC, 145 U.S.App.D.C. 32, 447 F.2d 1201 (1971); Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393 (1965).
. See note 27 supra.
. The duties discussed in notes 35-41 would, however, be applicable.
. Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94. 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973).
. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974).
. See Brandywine-Main Dine Radio, Inc. v. PCC, 153 U.S.App.D.C. 305, 359-560, 473 F.2d 16, 70-71 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973). This limitation may be justified by the fact that a personal attack may involve quasi-libelous speech and thus a right to reply can be seen as a permissable remedy for such unprotected speech. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 2840, 41 L.Ed.2d 730 (1974) (Brennan, J., concurring). The editorial reply rules might be justified by a desire to protect the electoral processes from control by dominant groups. See note 34 supra; 47 U.S.C. § 315 (1970). Both may be justified as narrowly defined instances of intervention to protect compelling governmental interests. Cf. Banzhaf v. FCC, 132 U.S.App.D.C. 14, 28-31, 405 F.2d 1082, 1096-99 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969). Compare Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969).
. I digress to note that there may be no justification for the assumption of scarcity inherent in the concept of comparative licensing. I have suggested before and continue to suggest that the FCC, Congress and the courts reconsider this assumption. See Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 364-365, 473 F.2d 16, 75-76 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973). Since there has been no reconsideration of the assumption of scarcity, I am forced for the time being to rule on the basis of that assumption. But the least we should require is that scarcity be proven in the particular case before erecting .duties around that concept. See id.
I note that the FCC in its recent statement on the Fairness Doctrine and Public Interest Standards, 39 Fed.Reg. 26372, 26374 (1974), responds to my suggestion in Brandywine to reconsider the assumption of scarcity. However, that reconsideration consists of no more than a recital of the information presented in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 396-400, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). I would require a much broader inquiry than this before resting comfortably with the assumption of scarcity.
. There is a distinction between normal comparative proceedings among various applicants in the same location for the same frequency and a § 307 (b) hearing on mutually inconsistent applications for licenses in different cities on different frequencies. However, in both circumstances choice of programming is relevant.
. W. S. Butterfield Theatres, Inc. v. FCC, 99 U.S.App.D.C. 71, 77, 237 F.2d 552, 558 (1956); Johnston Broadcasting Co. v. FCC, 85 U.S.App.D.C. 40, 48, 175 F.2d 351, 359 (1949); Bay State Beacon, Inc. v. FCC, 84 U.S.App.D.C. 216, 217, 171 F.2d 826, 827 (1948); Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 397 (1965).
. See cases cited Jorgensen, Schwartz & Woods, Programming Diversity in Proposals for New Broadcast Licenses, 32 Geo.Wash.L. Rev. 769, 796-98 nn. Ill, 113-14 (1964); Irion, FCC Criteria for Evaluating Competing Applicants, 43 Minn.L.Rev. 479, 489-96 (1959) ; Note, supra note 45 at 702. See also Buckley-Jaeger Broadcasting Corp. v. FCC, 130 U.S.App.D.C. 90, 397 F.2d 651 (1968).
. See Moline Television Corp., 31 F.C.C.2d 263, 272-73 (1971), discussing Policy Statement on Comparative Broadcast Hearings, F.C.C.2d 393, 397 (1965). The statements in Moline to the effect that the FCC will no longer consider proposed programming specifically exempt consideration of programming proposals designed to meet unfulfilled community needs. 31 F.C.C.2d at 272; see note 63 infra.
. See, e. g., Central Coast Television, 1 P & F Radio Reg.2d 237 (1963); Jefferson Standard Broadcasting Co., 24 P & F Radio Reg., 319 (1963); Rockland Broadcasting Co., 23 P & F Radio Reg. 789 (1962); Plainview Radio, 18 P & F Radio Reg. 671 (1959).
. See Rollins Broadcasting, Inc., 20 P & F Radio Reg. 976 (1960), mod. 20 P & F Radio Reg. 978 (1961); Herbert Muschel, 33 F.C.C. 48 (1961); La Fiesta Broadcasting Co., 6 F.C.C.2d 65 (Rev.Bd.1966); Great Lakes Television, Inc., 25 F.C.C. 470 (1958); NTA Television Broadcasting Corp., 22 P & F Radio Reg. 273, 294 n. 20 (1961); Broad-man Broadcasting Co., 10 F.C.C.2d 422 (Rev. Bd. 1967) ; Mel-Lin, Inc., 17 F.C.C.2d 705, 712 (Rev.Bd.1969) ; Progress Broadcasting Corp., 24 P & F Radio Reg. 229 (Rev.Bd. 1962) ; Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 397 n. 9 (1965).
. Compare Network Programming Inquiry, 25 Fed.Reg. 7291, 7295 (F.C.C.1960) with Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 397 (1965). While there is general commentary in the literature to the effect that the FCC does not in its review of programming perceptibly distintinguish between comparative and non-comparative proceedings, I was unable to find one non-comparative case in which the FCC gave significant consideration to a proposal for specialized programming. The cases cited note 63 sttpra involving comparative hearings, on the other hand, to demonstrate significant consideration of specialized programming proposals.
. Johnston Broadcasting Co. v. FCC, 85 U.S.App.D.C. 40, 48, 175 F.2d 351, 359 (1949).
. Cf. cases cited note 59 supra. See also Buckley-Jaeger Broadcasting Corp. v. FCC, 130 U.S.App.D.C. 90, 397 F.2d 651 (1968), aff’g 2 F.C.C.2d 833 (1966).
. Cf. FTC v. Proctor & Gamble Co., 386 U.S. 568, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967). Compare Citizens Communication Center v. FCC, 145 U.S.App.D.C. 32, 447 F.2d 1201 (1971).
. Cf. Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 271, 285, 53 S.Ct. 627, 77 L.Ed. 1166 (1933); p. 13 sufra.
. “It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official— is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.”
394 U.S. at 151, 89 S.Ct. at 939, citing Staub v. Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958). See NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); American Civil Liberties Union v. Jennings, 366 F.Supp. 1041 (D.D.C.1973), prob. juris, noted sub nom., Staats v. American Civil Liberties Union, 417 U.S. 944, 94 S.Ct. 3066, 41 L.Ed.2d 664 (1974); Note, Chilling Effect in Constitutional Law, 69 Colum.L.Rev. 808 (1969). There is some evidence that broadcasters may want this “chilling effect” in order to reaffirm their own predelictions for self-censorship. This is not an argument for permitting the government’s “chilling effect"; indeed, this argument is another persuasive reason for eliminating the government imposed “chill.” See generally Yale Broadcasting Co. v. FCC, 155 U.S.App.D.C. 390, 399, 478 F.2d 594, 603, cert. denied, 414 U.S. 914, 94 S.Ct. 211, 38 L.Ed.2d 152 (1973) (Statement of Bazelon, C. J.).
The most potent source of a “chill” lies in FCC actions which might if properly executed be consistent with the First Amendment but which are in fact executed in a manner strongly suggestive of censorship. See id.; note 35 sufra. Another source of “chill” is the threat of a hearing on a particular action of the licensee. This “chill” is less visible in comparative proceedings since normally a
. North Dakota State Bd. of Pharmacy v. Snyder’s Drug Stores, 414 U.S. 156, 167, 94 S.Ct. 407, 414, 38 L.Ed.2d 379 (1973).
. I saw the need for such an over-sight in Yale Broadcasting Co. v. FCC, 155 U.S.App.D.C. 390, 399, 478 F.2d 594, 603, cert. denied, 414 U.S. 914, 94 S.Ct. 211, 38 L.Ed.2d 152 (1973) (Statement of Bazelon, C. J.). . Compare notes 38, 40 supra.
. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 393, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).
. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
. See California Bankers’ Ass’n v. Schultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974).
. See, e. g., Bazelon, The Defective Assistance of Counsel, 42 U.Cinc.L.Rev. 1 (1973).
. See Joseph v. FCC, 131 U.S.App.D.C. 207, 404 F.2d 207 (1968); Witchita-Hutchinson Co., 19 F.C.C.2d 433 (1969), explained Alianza Federal de Pueblos Libres’, 31 F.C.C. 2d 557, 559 (1971); Time-Life Broadcast, Inc., 33 F.C.C.2d 1099, 1114-25 (1972) (in context of “Top 50” policy). Such a view of the Commission’s responsibilities in license assignment proceedings is consistent with the language and intent of 47 U.S.C. § 310(b) (1970). That section requires the FCC to determine whether the assignment is in the public interest, thus by implication authorizing a comparison between existing service and proposed service. The proviso which prevents the FCC from considering other applicants refers only to other proposed assignees and not to the assignor. If a license assignment is considered a comparative proceeding, it would not necessarily follow that a hearing need be held in every case under the Ashbaeker doctrine. See generally Citizens Communication Center v. FCC, 145 U.S.App.D.C. 32, 447 F.2d 1201 (1971). Since the assignor, who is to be compared in the assignment proceeding, initiates that proceeding and since by the nature of the proceeding the assignor would have all relevant procedural rights in a potential comparison of it and the assignee, the considerations of fairness which underlie the Ashbaoker doctrine would seemingly not be applicable.
. See note 63 supra.
. See pp. 16-18 supra.
. See Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 352, 473 F.2d 16, 63 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973) (Bazelon, C. J. dissenting). I take this opportunity to note that one of the chief vices, in my view, of the FCC decision in Brandywine was its failure to consider whether the Philadelphia area, served by sixty-odd stations, was diversified enough to permit sj)eeialized opinion programming, a type of programming the FCC apparently does not permit. It is not yet apparent to me why the FCC should permit specialized entertainment programming, and forbid specialized opinion programming. See also note 36 supra; Note, supra note 45, at 706. In this connection I note with much interest Senator Ervin’s proposal to restrict application of the Fairness Doctrine to broadcast areas receiving four or fewer broadcast signals. See 119 Cong.Rec. S20358-62 (Nov. 14, 1973).
Dissenting Opinion
(dissenting):
As a member of the original panel in this case I concurred in the views cogently expressed by Chief Judge Bazelon in Part II of his opinion for the panel. I adhere to those views. Since Chief Judge Bazelon’s opinion has been vacated I here reproduce Part II, after renumbering the footnotes.
In recent years this Court and the FCC have begun to develop principles governing government control of format changes.
In this case appellants contend that substantial factual disputes exist on two issues relating to the proposed format change — the diversity of available formats and Zenith’s alleged financial losses.
As to diversity, appellants maintain that a substantial issue of fact exists as to whether the Chicago public demands and needs the continuation of classical music on WEFM as opposed to “yet another contemporary music station.”
Our previous opinions and the Commission’s actions indicate that the majority of format changes are left to the give and take of the market environment and the 'business judgment of the licensee.
In this case it is undisputed that the entire area served by WEFM is served by another classical music station, WFMT-FM.
Appellants also contend that a substantial issue of fact exists concerning the losses Zenith alleges it sustained during its operation of WEFM. Even assuming that such an issue would require a hearing in the absence of a substantial diversity issue, we do not find that appellants have raised a substantial issue of fact here. The Commission had sufficient evidence to support its finding that WEFM had incurred substantial losses in the period after 1965, when the station was operated on a commercial basis and not as a research and development adjunct to the Zenith corporation.
. See Citizens Committee to Preserve the Voice of the Arts in Atlanta v. FCC, 141 U.S.App.D.C. 109, 436 F.2d 263 (1970); Hartford Communications Committee v. FCC, 151 U.S.App.D.C. 354, 467 F.2d 408 (1972); Lakewood Broadcasting Service, Inc. v. FCC, 156 U.S.App.D.C. 9, 478 F.2d 919 (1973); Citizens Committee to Keep Progressive Rock v. FCC, 156 U.S.App.D.C. 16, 478 F.2d 926 (1973).
. Citizens Committee to Keep Progressive Rock, 478 F.2d at 929.
. Lakewood Broadcasting Service, Inc., 478 F.2d at 922.
. Id.
. Appellants’ brief, at 38.
. Citizens Committee to Keep Progressive Book, 478 F.2d at 929.
. Id. at 929.
. A third classical music station, WNIB-FM, currently serves a smaller part of the Chicago area. GCG has agreed that if their license application is approved, they will relinquish the call letters WEFM to WNIB and give WNIB the WEFM classical music library as well as technical assistance designed to enable WNIB to increase its power.
. The long history of WEFM’s service does not diminish the impact of WFMT’s similar programming. The length of time that a format has been on the air is usually relevant only when that format is unique. See Citizens Committee to Keep Progressive Book, at 933 note 22:
Naturally the length of time that a specific format has been on the air is a factor to be considered in the ultimate public interest determination, for it can have a direct bearing on the degree of attachment which the public has to the unique format. (Emphasis added).
This approach to the diversity issue cannot be applied in a mechanistic fashion. Whether a format to be discontinued is unique can be a subtle question requiring that more than mere labels be examined. The fact, for example, that two stations are labelled “classical” does not automatically mean that they provide substantially similar programming. One of the stations might never play music composed in this century, while the other devotes considerable amounts of time to such music. In this case, however, it is apparent that WEFM and WFMT have substantially similar programming, both covering a broad range of classical music. Cf. Citizens Committee to Keep Progressive Book, at 932, where this Court noted that “Top 40” stations cannot automatically be assumed to provide substantial amounts of “progressive rock” music.
.Zenith was not, for example, able to obtain enough advertising to fill the two and one-half minutes per hour it allotted for ads. Joint Appendix at 73.
Appellants’ contention concerning the adequacy of the notice of the application for voluntary transfer is also without merit. The Commission properly found that Zenith complied with the notice requirements of the Commission’s rules. The notice given was not constitutionally defective.
Similarly, appellants’ contention that the Commission’s e® parte rules had an unconstitutional impact on the public discussion of the format change is without merit in the setting of this case.
Dissenting Opinion
(dissenting) :
The majority opinion indicates that we are beginning to open the door wider for intrusion of the courts and the Government into the content of radio broadcasts. To my mind such governmental interference should be held to a minimum and the power should not be exercised except upon the clearest grounds. I fail to see that such grounds exist when we are forced to draw a distinction based on differences in “class
ORDER
The Clerk is directed to file the lodged petition of intervenor GCC Communications of Chicago, Inc., for rehearing, and on consideration thereof, it is
Ordered by the Court en banc that the aforesaid petition for rehearing is denied.
Statement of .BAZELON, Chief Judge, as to why he voted to deny rehearing:
Intervenor GCC Corporation asks the Court to reconsider Part II. C. 2 of its opinion which holds that on the present record there is a substantial question of fact whether GCC deliberately misled community leaders about its programming plans in its ascertainment survey. As I stated in my concurring opinion, I have some doubts about this holding but perceived no reason why further inquiry into this issue should be foreclosed since the case is to be remanded in any event. GCC in its petition for rehearing presents us with data which indicates that certain information upon which the Court relied in Part II. C. 2 may not be sufficiently valid to support a holding that a substantial question of fact exists on the ascertainment survey. This data should be presented to the FCC on remand of the case. Remand is dictated, as I have stated, on grounds independent of the ascertainment survey, and thus no purpose would be served by ■ this Court taking the extraordinary step of considering evidence not in the administrative record. GCC suggests in its petition that the FCC is foreclosed by the Court’s opinion from denying a hearing on the ascertainment survey issue after consideration of this new data. I do not so read the Court’s opinion. If GCC puts its new data in affidavit form, it might properly persuade the Commission that no further evidentiary inquiry is needed. Nothing in Part II. C. 2 prevents the Commission from agreeing.
Dissenting Opinion
(dissenting).
The question now is limited to whether the assignment should have been approved without a hearing. A hearing is required to resolve factual disputes which are substantial and material. 47 U.S.C. § 309(e). There is no doubt that this provision applies when the Commission is to decide whether a format change such as here proposed would go into effect upon Commission approval of the assignment of the broadcasting license, a decision to be made under the standard of the public interest, convenience, and necessity. See, e. g., Lakewood Broadcasting Service v. F.C.C., 156 U.S.App.D.C. 9, 478 F.2d 919 (1973).
In approving the application for the assignment the Commission relied materially and substantially upon alleged financial losses suffered by Zenith, the assignor. I agree with Commissioner Johnson in his dissenting opinion that the attribution of such losses to Zenith’s classical music format is a question which could not be answered without further investigation. The claim of losses was put in factual dispute by the Committee opposing the assignment, since Zenith continued to use the station to advertise its own manufactured products.
Since the court now affirms, I do not attempt an analysis of the further contention of the Committee that a hearing was required under the reasoning of this court’s decision in the Atlanta case of Citizens Committee v. F.C.C., 141 U.S.App.D.C. 109, 436 F.2d 263 (1970), where the proposed abandonment of a classical music format was also involved. I add, however, that the limitation upon issues which require a hearing contained in the Keep Progressive Rock case
. The Citizens Committee to Keep Progressive Rock v. F. C. C., 156 U.S.App.D.C. 16, 478 F.2d 926 (1973).