Citizens Committee v. FCC, 23515.

• Decision Date: 30 October 1970
• Docket Number: No. 23515.,23515.
• Citation: 436 F.2d 263
• Parties: The CITIZENS COMMITTEE To Preserve the present programming of the "Voice of the Arts in Atlanta on WGKA-AM and FM", Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Strauss Broadcasting Company of Atlanta, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

436 F.2d 263 (1970)

The CITIZENS COMMITTEE To Preserve the present programming of the "Voice of the Arts in Atlanta on WGKA-AM and FM", Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee Strauss Broadcasting Company of Atlanta, Intervenor.

No. 23515.

United States Court of Appeals, District of Columbia Circuit.

Argued May 15, 1970.

Decided October 30, 1970.

COPYRIGHT MATERIAL OMITTED

Mr. Henry Angel, Atlanta, Ga., for appellant.

Mr. D. Biard MacGuineas, Counsel, Federal Communications Commission, with whom Messrs. Henry Geller, General Counsel, and John H. Conlin, Associate General Counsel, and Mrs. Lenore G. Ehrig, Counsel, Federal Communications Commission, were on the brief, for appellee.

Mr. Reed Miller, Washington, D. C., with whom Mrs. Anne W. Branscomb, Washington, D. C., was on the brief, for intervenor.

Before McGOWAN, TAMM and ROBB, Circuit Judges.

McGOWAN, Circuit Judge:

This proceeding to review an order of the Federal Communications Commission was initiated by a voluntary association of citizens of Atlanta, Georgia. Their concern is with a substantial alteration in the program format incident to a change in ownership of a licensee — a concern which they requested the Commission to explore in an evidentiary hearing before giving its final approval to the transfer. The Commission denied that request, and it is the propriety of that action alone which is presently before us. For the reasons hereinafter appearing, we do not think the omission of a hearing in this instance was compatible with the applicable statutory standards.

I

On March 5, 1968, the intervenor, Strauss Broadcasting Company of Atlanta, a subsidiary of a Texas organization with radio stations in Dallas and Tucson, filed with the Commission an application for transfer of the operating rights of the Atlanta Stations WGKA-AM and WGKA-FM. The application was founded upon a proposed 100% transfer of the stock ownership of the licensee stations to Strauss from Glenkaren Associates, Inc. Under Glenkaren, the stations had for many years maintained a classical music format,¹ duplicating FM transmissions on AM during the AM daytime operating period. Strauss proposed a format comprised of a "blend of popular favorites, Broadway hits, musical standards, and light classics." With the exception of news broadcasts, there was to be no duplication of AM and FM transmissions under the changed format.

Publication of notice of the transfer application provoked a public outcry against the change in format, including adverse comment in the columns of a leading Atlanta newspaper. More than 2000 persons, by individual letters and group petitions, informally protested the change to the Commission. Subsequently, Strauss filed two amendments to its transfer application. The first, on April 22, 1968, dealt largely with the "newspaper campaign," which was alleged to be responsible for the protests addressed to the Commission. In addition, a detailed explanation of the proposed format was included. Although there was a denial of any purpose to use "rock and roll," "race," "religious," or "country and western" music, there was a reaffirmation that "what we seek to achieve is a pleasant blending of popular favorites, Broadway hits, musical standards and light classical music," and the amendment went on to say:

"We recognize, of course, that we will be changing the stations from a classical music format. No doubt there is a small (but obviously vocal) segment of the population in Atlanta interested in classical music, but * * * there has not been any general acceptance by the public or commercial advertisers of classical music. * * *" (Emphasis supplied).

A second amendment was filed June 3, 1968. It transmitted summaries of interviews with 13 prominent citizens which purported to reflect favorable views of the proposed new format. One such interview with the Sheriff of Fulton County was described in this way:

"Knew nothing about the station, had never heard it and was not aware that there was such a station in Atlanta.

"Very sports minded and listens to sports regularly and could not see where anything could be added * *

"* * * Does not like classical music and prefers old standards and easy moving popular. In his opinion a music format such as we are proposing would be well accepted."

Another community leader interviewed was the executive vice-president of an advertising agency. His views were summarized as follows:

"WGKA has an extremely good image in the market, but actually only appeals to a very small segment of people so that it is no real factor in the market from an advertising standpoint. The station has put itself in this small niche, but he believes if the programming were broadened, it would have appeal for more people."

A third interview, this time with a savings and loan executive, appeared to recognize some merit in WGKA but concluded on this unmistakably dissonant note:

"He stated that WGKA regularly carried a fine arts activity schedule, but that was about the extent of their community involvement. WGKA had done live direct broadcasts of symphonies and certain other programs, but always dealing with classical artists."²

On September 4, 1968, the Commission, without a hearing, granted the transfer application. The Commission recited as a fact that the necessity for the transfer was that the existing owner could not supply adequate capital for needed improvements. It also noted that opposition to the change was provoked by the newspaper comments, whereas interviews with community leaders had apparently evoked "nothing but support" for Strauss's proposals. The Commission concluded that the proposed programming was established by the surveys to be one that served the public interest, and that the "informal objections" raised no substantial question requiring a hearing. Commissioner Cox dissented without opinion.

On September 25, 1968, appellant filed a petition for reconsideration, which urged a stay of the September 4 ruling pending the holding of a hearing. Appellant challenged the significance of Strauss's surveys of 13 community leaders, questioning the representative nature of this sampling, and comparing it with the large number of protests actually received by the Commission before its approval order was entered. Perhaps the greatest stress was laid on the fact that of Atlanta's many AM and FM stations, only one (WGKA) was classical.

Strauss countered, on October 9, 1968, with an opposition to the petition, alleging lack of standing on appellant's part, but also renewing its laments about the hostility of the Atlanta newspapers and emphasizing its interviews with the 13 community leaders. In the closing pages of this document, however, Strauss said that "recognizing the expressed interest of the some 2000 persons who advocated retention of the classical music format, Strauss will, at the outset, emphasize such music on WGKA-FM, particularly during evening hours, while still providing a mix of popular favorites and Broadway hits. * * *"

In subsequent months voluminous papers were filed by both sides.³ Appellant's first amendment to its petition alleged that intervenor had misrepresented to the Commission the views expressed by the interviewees, and submitted affidavits from six of them which were said to contradict the earlier summaries. Intervenor came back with letters from, or summaries of second interviews with, the interviewees which were said to reaffirm the original summaries.

On March 4, 1969, the Commission requested Strauss to "undertake further efforts to ascertain by a more comprehensive survey" the tastes and needs of the community. In response, Strauss filed on April 30, 1969 a statistical survey of "program preferences" in Atlanta prepared by Marketing and Research Consultants of Dallas. As the Commission describes the matter in its opinion, the key question in this survey was framed in this way:

"Which of these two formats would you prefer to listen to daily?

a. A blend of Broadway Show tunes like "Mame" and "Cabaret," movie themes like "Dr. Zhivago" or "Born Free" and standards like "Moonglow" and "Stardust" plus hourly newscasts.

b. A blend of Opera Symphonic pieces like "The Emperor Concerto" or "The New World Symphony" and Ballets such as "Petrouchka" and "Swan Lake" plus news approximately every hour."

Out of 640 people asked, 73% preferred the first format, and 16% preferred the second. Four% gave no reply, and the remainder preferred neither. Appellant, on May 22, 1969, attacked in detail this submission by Strauss.

At this point, another factor entered the controversy, namely, the existence of a daytime-only 500 watt AM classical station in Decatur, Georgia, (WOMN), some 10 miles from Atlanta. Strauss asserted that this station adequately served the daytime needs of WGKA's former audience. Appellant responded that WOMN's signal reached few Atlanta listeners at an acceptable level of signal quality.

On August 25, 1969, the Commission entered a Memorandum Opinion and Order. The Commission reviewed its previous opinion and intervening events, and concluded that "the case here comes down to a choice of program formats — a choice which in the circumstances is one for the judgment of the licensee." Inter alia, the Commission accepted Strauss's surveys, and stated as a fact that WOMN served "a large portion of the City of Atlanta."⁴

In dissent, Commissioner Cox asserted that a hearing was required. He noted that the WGKA stations had been providing classical music for ten years, and had thereby afforded some measure of balance in the musical fare available to Atlanta listeners from the 20 existing aural facilities — a balance which was being destroyed, particularly for daytime listeners. He also noted that by intervenor's own surveys (which he also questioned) one-sixth of the Atlanta market, or about 100,000 people, would not be served despite the existence of multiple radio channels. He...