Citizens Committee to Save WEFM v. F. C. C., No. 73-1057

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and ROBB; BAZELON; ROBB; Before BAZELON, Chief Judge, FAHY; ROBINSON, MacKINNON, ROBB and WILKEY; McGOWAN; Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LE
Citation165 U.S.App.D.C. 185,506 F.2d 246
Decision Date13 December 1974
Docket NumberNo. 73-1057
Parties, 165 U.S.App.D.C. 185 CITIZENS COMMITTEE TO SAVE WEFM and Citizens Committee to Save WEFM, Inc., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Appellees, GCC Communications of Chicago, Inc. Zenith Radio Corporation, Intervenors.

Page 246

506 F.2d 246
27 A.L.R.Fed. 324, 165 U.S.App.D.C. 185
CITIZENS COMMITTEE TO SAVE WEFM and Citizens Committee to
Save WEFM, Inc., Appellants,
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of
America, Appellees, GCC Communications of Chicago,
Inc. Zenith Radio Corporation, Intervenors.
No. 73-1057.
United States Court of Appeals, District of Columbia Circuit.
Argued July 26, 1973.
Decided Nov. 15, 1973, Argued En Banc June 13, 1974, On
Rehearing En Banc Oct. 4, 1974, Rehearing Denied
and Rehearing En Banc Dec. 13, 1974.

Page 248

Harry R. Booth, Chicago, Ill., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court and Thomas D. Allison, Jr., with whom Richard F. Watt, Chicago, Ill., was on the brief, for appellants.

Joseph Volpe, III, Counsel, Federal Communications Commission, with whom John W. Pettit, Gen. Counsel, and Joseph A. Marino, Associate, Gen. Counsel, Federal Communications Commission, were on the brief, for appellees. John H. Marple, Counsel, Federal Communications Commission and Howard E. Shapiro, Atty., Dept. of Justice, also entered an appearance for appellees.

Paul Dobin, Washington, D.C., with whom Ronald A. Siegel, Washington, D.C., and Philip J. Curtis, Chicago, Ill., were on the brief, for intervenor GCC Communications of Chicago, Inc.

A brief was filed on behalf of The Friends of the Chicago Public Library as amicus curiae. Kenward K. Harris, Washington, D.C., entered an appearance for The Friends of the Chicago Public Library as amicus curiae.

Page 249

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and ROBB, Circuit Judge.

BAZELON, Chief Judge:

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. 1

II

In recent years this Court and the FCC have begun to develop principles governing government control of format changes. 2 This Court has held that the public has an interest in the diversity of entertainment formats. 3 Consequently the Commission has had to consider format changes in its statutory determination that a proposed assignment of a license comports with 'the public interest, convenience, and necessity.' 4 Factual disputes surrounding the format change are material and if substantial become subject to the statutory requirement that a hearing be held. 5

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.' 6 Appellants point to the numerous letters and petitions of protest which greeted the news that WEFM was about to abandon its classical format. They note that Chicago has numerous rock stations

Page 250

already, while the demise of WEFM will leave only one classical music station with the power to reach the entire Chicago area.

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. 7 It is only when the format to be discontinued is apparently unique to the area served that a hearing on the public interest must be held. 8 In such cases the public interest in diversity may outweigh the dangers of government intrusion into the content of programming.

In this case is is undisputed that the entire area served by WEFM is served by another classical music station, WFMT-FM. 9 Thus we are unable to find a substantial issue of fact requiring a hearing on the diversity point. 10

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. 11

III

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, 12 the

Page 251

nature of 'licensee responsibility,' 13 or, as here, the standards governing format change, any government effort to regulate the content of programming must be carefully scrutinized for possible interference with free expression.

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. 14 In addition to its artistic value, music, both classical and popular, can be an important mode of political and moral expression. 15 There is even the possibility of repression when, for example, the lyrics of popular songs communicate controversial ideas. 16 Danger lurks in government regulation of what music can be put on the airwaves. Such regulation, ostensibly in the name of diversity, may open the door to withholding approval of transfers if the new format is more controversial than the one to be abandoned.

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.' 17 The broadcasting media may be subject to greater concentration of ownership and difficulty of access than the printed media. 18 Thus more government regulation of broadcasting may enhance the variety of political and cultural viewpoints to be heard. 19

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

Page 252

government regulation with the concomitant possibility of abuse. Moreover, the prospect of lengthy and costly hearings may deter new licensees from changing their format even when that change is in the public interest. 20

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. 21

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.

ROBB, Circuit Judge, concurs in Parts I and II and in the result.

ON REHEARING EN BANC

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL,

Page 253

ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.

McGOWAN, Circuit Judge:

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 FCC2d 838; 40 FCC2d 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....

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20 practice notes
  • Illinois Citizens Committee for Broadcasting v. F. C. C., No. 73-1652
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 21, 1975
    ...(D.C.Cir. 1974) (intervenors Accuracy in Media, Inc.; United Church of Christ); Citizens Comm. to Save WEFM v. FCC, 165 U.S.App.D.C. --, 506 F.2d 246 (1974); Columbus Broadcasting Coalition v. FCC, 164 U.S.App.D.C. --, 505 F.2d 320 (1974); Stone v. FCC, 151 U.S.App.D.C. 145, 466 F.2d 316 (1......
  • Writers Guild of America, West, Inc. v. FCC, No. CV 75-3641-F
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • November 4, 1976
    ...of Independent Television Producers & Distributors v. FCC, supra, 516 F.2d at 630-38; Citizens Committee to Save WEFM v. FCC, 165 U.S.App.D.C. 185, 506 F.2d 246, 268 (1974) (on rehearing en banc); Brandywine-Main Line Radio, Inc. v. FCC, supra, 473 F.2d at 57-58; Mt. Mansfield Television, I......
  • City of Rochester v. Bond, No. 78-1352
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 25, 1979
    ...F.2d 113, 115 (N.D.Ill.1928). 38 See, e.g., Rippe v. FCC, 528 F.2d 771, 772 (6th Cir. 1976); Citizens Committee to Save WEFM v. FCC, 165 U.S.App.D.C. 185, 208, 506 F.2d 246, 269 (1974); Valley Vision, Inc. v. FCC, 399 F.2d 511, 514 (9th Cir. 1968); Cook v. United States, 394 F.2d 84, 86 (7t......
  • U.S. v. F.C.C., Nos. 77-1249 and 77-1252
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 7, 1980
    ...the Commission may lack sufficient information Page 89 on which to make an informed judgment. See Citizens Committee to Save WEFM v. FCC, 506 F.2d 246, 259 (D.C.Cir.1973) (en Section 309(d) describes the burden on an opponent of a license in submitting a petition to deny : The petition shal......
  • Request a trial to view additional results
20 cases
  • Illinois Citizens Committee for Broadcasting v. F. C. C., No. 73-1652
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 21, 1975
    ...(D.C.Cir. 1974) (intervenors Accuracy in Media, Inc.; United Church of Christ); Citizens Comm. to Save WEFM v. FCC, 165 U.S.App.D.C. --, 506 F.2d 246 (1974); Columbus Broadcasting Coalition v. FCC, 164 U.S.App.D.C. --, 505 F.2d 320 (1974); Stone v. FCC, 151 U.S.App.D.C. 145, 466 F.2d 316 (1......
  • Writers Guild of America, West, Inc. v. FCC, No. CV 75-3641-F
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • November 4, 1976
    ...of Independent Television Producers & Distributors v. FCC, supra, 516 F.2d at 630-38; Citizens Committee to Save WEFM v. FCC, 165 U.S.App.D.C. 185, 506 F.2d 246, 268 (1974) (on rehearing en banc); Brandywine-Main Line Radio, Inc. v. FCC, supra, 473 F.2d at 57-58; Mt. Mansfield Television, I......
  • City of Rochester v. Bond, No. 78-1352
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 25, 1979
    ...F.2d 113, 115 (N.D.Ill.1928). 38 See, e.g., Rippe v. FCC, 528 F.2d 771, 772 (6th Cir. 1976); Citizens Committee to Save WEFM v. FCC, 165 U.S.App.D.C. 185, 208, 506 F.2d 246, 269 (1974); Valley Vision, Inc. v. FCC, 399 F.2d 511, 514 (9th Cir. 1968); Cook v. United States, 394 F.2d 84, 86 (7t......
  • U.S. v. F.C.C., Nos. 77-1249 and 77-1252
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 7, 1980
    ...the Commission may lack sufficient information Page 89 on which to make an informed judgment. See Citizens Committee to Save WEFM v. FCC, 506 F.2d 246, 259 (D.C.Cir.1973) (en Section 309(d) describes the burden on an opponent of a license in submitting a petition to deny : The petition shal......
  • Request a trial to view additional results

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