"extention of (the Atlanta ) holding beyond the limited confines of the facts and circumstances therein would be most unwise"
How later courts described this case
- "extention of (the Atlanta ) holding beyond the limited confines of the facts and circumstances therein would be most unwise"
- over 1,000 protest letters to the Commission
Written by the judges who cited it.
The opinion
MacKINNON, Circuit Judge,
(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 *225 ical” music to sustain jurisdiction to interfere. Generally my view of the facts and the law is expressed in Judge Robb’s dissent with which I concur.
Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MaeKINNON, ROBB and WILKEY, Circuit Judges.
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.