WNCN Listeners Guild v. F. C. C.

Decision Date29 June 1979
Docket NumberNos. 76-1692,76-1793 and 77-1951,s. 76-1692
Citation197 U.S.App.D.C. 319,610 F.2d 838
Parties, 5 Media L. Rep. 1449 WNCN LISTENERS GUILD and Citizens Communications Center, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Broadcasting Companies, Inc., National Association of Broadcasters, Intervenors. CLASSICAL RADIO FOR CONNECTICUT, INC., and Committee for Community Access, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, National Association of Broadcasters, Cornhusker Television Corp., et al., Intervenors. The OFFICE OF COMMUNICATION OF the UNITED CHURCH OF CHRIST, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Metromedia, Inc., National Radio Broadcasters Association, National Broadcasting Company, Inc., CBS, Inc., Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

Petitions for Review of Orders of the Federal Communications commission.

Kristin Booth Glen, New York City, was on the brief for petitioners WNCN Listeners Guild and Citizens Communications Center in case 76-1692.

David M. Rice, Greenwich, Conn., was on the brief for petitioners Classical Radio for Conn., Inc., and Committee for Community Access in case 76-1793.

Wilhelmina Reuben Cooke, Washington, D. C., with whom Edward J. Kuhlmann, Washington, D. C., was on the brief for petitioners Office of Communication of the United Church of Christ, et al., in case 77-1951.

David J. Saylor, Deputy General Counsel, Federal Communications Commission, Washington, D. C., argued for respondents F.C.C. and the U. S.; Daniel M. Armstrong, Associate Gen. Counsel, C. Grey Pash, Jr., Counsel for F.C.C., John H. Shenefield, Asst. Atty. Gen., Robert B. Nicholson and Andrea Limmer, Attys. for Dept. of Justice, Washington, D. C., were on the brief.

M. Jason Zelin and Charles M. Firestone were on the brief for amici curiae Classical Music Supporters, Inc., Committee for Open Media, Consumer Federation of America, Friends of WONO, Inc., and Louisiana Center for the Public Interest in support of the petitioners and urging reversal of the order of the Federal Communications Commission.

Timothy B. Dyk and William R. Richardson, Jr., Washington, D. C., were on the brief for intervenor CBS, Inc.

Carl R. Ramey with whom James A. McKenna, Jr., Thomas N. Frohock and Gaylene J. McCartney, Washington, D. C., were on the brief for intervenor American Broadcasting Co., Inc.

J. Laurent Scharff, Washington, D. C., with whom James J. Freeman, Erwin G. Krasnow and Jack N. Goodman, Washington, D. C., were on the brief for intervenor National Ass'n of Broadcasters.

B. Dwight Perry and Richard D. Marks, Washington, D. C., were on the brief for intervenors Cornhusker Television Corp., Covenant Broadcasting Corp., Covenant Broadcasting Corp. of Louisiana, Inc., Covenant Radio of Oklahoma, Inc., Fetzer Broadcasting Co., Fetzer Television Corp., KOOL Radio-Television, Inc., KTOK Radio, Inc., McClatchy Newspapers, Medallion Broadcasters, Inc., Newhouse Broadcasting Corp., Palmer Broadcasting Co., Plough Broadcasting Co., Inc., Radiohio, Inc., Rusk Corp., WBNS-TV, Inc.

Thomas Schattenfield and Harry F. Cole, Washington, D. C., were on the brief for intervenor National Radio Broadcasters Ass'n, in case 77-1951.

Thomas J. Dougherty and Preston R. Padden, Washington, D. C., were on the brief for intervenor Metromedia, Inc.

Frank W. Lloyd, III, Washington, D. C., also entered an appearance for the petitioners WNCN Listeners Guild and Citizens Communications Center in case 76-1692.

Lloyd John Osborn and Robert Lewis Thompson, Washington, D. C., also entered appearances for the Dept. of Justice in case 76-1692.

Werner K. Hartenberger, Washington, D. C., also entered an appearance for the F.C.C. in case 76-1793.

Floyd Abrams, New York City, also entered an appearance for intervenor National Broadcasting Co. in case 77-1951.

J. Roger Wollenberg, Stephen A. Weiswasser and Neal M. Goldberg, Washington, D. C., also entered an appearance for intervenor CBS, Inc., in case 77-1951.


Opinion for the court, concurred in by Chief Judge J. SKELLY WRIGHT, and Circuit Judges LEVENTHAL, SPOTTSWOOD W. ROBINSON, III, ROBB and WILKEY, filed by Circuit Judge McGOWAN.

Concurring opinions filed by Circuit Judges BAZELON and LEVENTHAL.

Dissenting opinion filed by Circuit Judge TAMM. Circuit Judge MacKINNON joins in Circuit Judge TAMM's dissenting opinion.

McGOWAN, Circuit Judge:

In cases culminating with Citizens Committee to Save WEFM v. FCC, 165 U.S.App.D.C. 185, 506 F.2d 246 (1974) (En banc ), this court, always in the context of the Federal Communications Commission's statutory responsibility to pass upon voluntary assignments of radio licenses, construed that responsibility as comprehending the issue of whether the proposed abandonment of a distinctive programing format was in the public interest. In particular, we said that, where a significant sector of the listening community, in opposition to the assignment, protests the loss of such a format by substantial factual allegations that it is both unique and financially viable, the statute requires that the Commission hold a hearing.

Thereafter the Commission, after notice and comment proceedings, issued a "policy statement" disagreeing with WEFM, arguing that the public interest in diversity of entertainment formats is best served by unregulated competition among licensees, and urging this court to repudiate the approach it has taken. Memorandum Opinion and Order, 60 F.C.C.2d 858 (1976) (Policy Statement ); 66 F.C.C.2d 78 (1977) (Denial of Reconsideration ). Citizens groups interested in fostering and preserving distinctive entertainment formats petitioned this court for review. * We set the case for hearing En banc because no panel of the court could overrule our En banc holding in WEFM as the Commission requested. 1 Unpersuaded that our reading of the Act is wrong, we decline the Commission's invitation to announce our abandonment of it.


The basic premise of our format cases 2 is that the Communications Act's "public interest, convenience, and necessity" 3 standard includes a concern for diverse entertainment programing. Congress set aside the radio spectrum as a public resource and acted to secure its benefits, not only to those in the cultural mainstream, but to "All the people" 4 of our richly pluralistic society. It "is surely in the public interest," therefore, "as that was conceived of by a 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." Citizens Committee to Preserve the Voice of Arts in Atlanta v. FCC, 141 U.S.App.D.C. 109, 115, 436 F.2d 263, 269 (1970).

Congress delegated to the Commission the task of ensuring that the license grants are used in the public interest. In particular, the Commission must sometimes consider the loss of diversity (together with other factors bearing on the public interest) when deciding assignment applications involving abandonment of existing formats. It must take a "hard look" at the salient problems, including loss of diversity, when making this public interest determination. Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), Cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971).

The Commission need not consider the public interest implications of format abandonment, however, when there are compelling indications that the loss in diversity is not serious or that the assignment is otherwise clearly in the public interest. For example, if notice of the change does not precipitate an outpouring of protest, 5 the Commission may properly assume that the proposed format is acceptable. 6 Similarly, even if a committed and vocal minority engages in significant public grumbling, no public interest issue is raised if their preferred format is the choice of a population segment too small to be accommodated by the available frequencies. 7 Finally, no public interest issue arises if there is an adequate substitute for the endangered format within the service area. 8 In these situations the evidence is strong that the assignment will not result in a troublesome diminution of format diversity. Further, if the format itself is shown to be economically unfeasible in the particular market I. e., if even an efficiently managed station would have no realistic prospect of economic viability then abandonment of the existing format does not contravene the public interest and the Commission need not pursue by hearing the alleged loss of diversity. 9

If the record presents substantial questions of fact material to the public interest, including the public interest in diversity, the Commission must hold an evidentiary hearing. 10 However, no hearing is required when the record presents no substantial questions of material fact. If the only issues of substance are the inferences and legal conclusions to be drawn from known facts, the Commission is free to make the public interest determination and decide the application before it. 11 Even when the record otherwise presents substantial fact issues, a hearing is unnecessary if undisputed facts establish any one of those situations discussed above in which no public interest issue arises. Thus, a hearing will rarely be needed to determine that (1) there has been no out pouring of public protest to the format change, (2) the endangered format's devotees are too few to be accommodated by the available frequencies, (3) there is an adequate substitute in the service area, 12 or (4) the format itself is financially unviable. 13


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