Amicus Curiae Brief — FCC v. WNCN Listeners Guild

i

Question Presented

Does the Commission’s Policy Statement Unlawfully

Restrict the Right of Listeners to Be Heard on the

Public Interest Benefits of Unique Radio Formats?

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Table of Contents

Question Presented

Interest of Amici

POINT I - che Policy Statement Unlawfully

Restricts the Hearing Rights of Listeners

Under Section 309(d) of the Communications

Act

POINT II -- The Poiicy Willi Unlawfully Preclude

the Commission from Taking a “Hard Look”

at First Amendment Claims by Public

Intervenors

Conclusion.

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Table of Authorities

Cases:

Citizens Committee v F.C.C., 436 F.2d 263

Ga. Ce; Se ok ienkwe cb eek Pie eee

Cosmopolitan Broadcasting Corp., 75 F.C.C.2d

Se GR ik kcicn Bcd et oe Ged eee oes

Deregulation of Radio, Docket No. 79-219,

Gapheiner Br, Corer. ik ncciitvie elie

Medford Broadcasters, Inc., 18 F.C.C.2d 817

Office of Communication of the United Church

of Christ v. FCC, 359 F.2d 994 (D.C. Cir.

SED 6 occ dswanddaveusn onto ae ee

Office of Communication of the United Church

of Christ v. FCC, 425 F.2d 543 (D.C. Cir.

REY vain ou wxipialcaen Co ee eee

Red Lion Broadcasting Co. v. F.C.C., 395 U.S.

Be TEE 6 kb dd dooce eee

WAIT hadio v. FCC, 418 F.2d 1153 (D.C. Cir.

1969), cert. denied, 409 U.S. 1027 (1972) ....

Wri, one. 6B FA. BR CTs ockccckisk

United States Constitution and Statutes:

United States Constitution

Pun Meee ns Cucina sak

Communications Act of 1934

MT OS ee he Se kes cae

13,

20, :

. 13,

iv

Other Authorities:

Barnouw. Erk, A Tower of Babel, New York,

Oxford Univ. Press, 1966................058.

Fed. Radio Comm. Ann. Rept. (1928) ...........

Herring, E. Pendleton, “Politics and Radio

Regulation,’ Harvard Business Review,

Cal. ia, Me. 2; dameeey, 1960... 6) cc ciasee.

Kahn, Frank S., Documents of American Broad.

casting, 3d ed., Prentice-Hall .............-.

Proceedings of the Fourth National Radio

Conference and Recommendations for

Regulation of Radio (November 9-11, 1925) .

15

16

14

Nos.: 79-824, 79-825, 79-827

IN THE

Supreme Court of the United States

October Term, 1979

FEDERAL COMMUNICATIONS COMMISSION

AND UNITED STATES OF AMERICA,

Petitioners,

-V.-

WNCN LISTENERS GUILD. INC. ET AL.

Respondents.

ON WRiITs OF CERTIORARI TO THE UNITED STATES CouRT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF AMICUS CURIAE SUBMITTED ON

BEHALF O* THE AMERICAN SYMPHONY

ORCHESTRA, AMERICAN SYMPHONY

ORCHESTRA LEAGUE, AMERICAN INTER-

NATIONAL ARTISTS LEAGUE, APPLE HILL |

CHAMBER PLAYERS, ASSOCIATION OF

CONNECTICUT ORCHESTRAS, BOSTON

BLUEGRASS UNION, BOSTON SYMPHONY

ORCHESTRA & BERKSHIRE FESTIVAL,

THE CANTICUM NOVUM SINGERS, CARNEGIE

HALL CORPORATION, CENTRAL CITY OPERA

HOUSE ASSOCIATION, CHAMBER MUSIC

SOCIETY OF LINCOLN CENTER,

CONNECTICUT ADVOCATES FOR THE ARTS,

DALLAS CIVIC OPERA, THE DESSOFF

CHOIRS, EMERSON STRING QUARTET,

GREENWICH PHILHARMONIA ORCHESTRA,

y

HOUSTON GRAND OPERA, JAZZ COALITION,

INC., JAZZMOBILE INC., KNOXVILLE

SYMPHONY ORCHESTRA, KODALY CENTER

OF AMERICA, LINCOLN CENTER FOR THE

PERFORMING ARTS, LIVING FOLK RECORDS

AND CONCERTS, INC., LOS ANGELES

MOZART ORCHESTRA, LOS ANGELES

PHILHARMONIC ASSOCIATION &

HOLLYWOOD BOWL SUMMER FESTIVAL,

METROPOLITAN OPERA ASSOCIATION,

MUSIC ASSOCIATES OF ASPEN, INC.,

NANTUCKET MUSICAL ARTS SOCIETY,

NEW ORLEANS JAZZ CLUB OF NORTHERN

CALIFORNIA, NEW YORK CHORAL SOCIETY,

NEW YORK CITY OPERA, NEW YORK

PHILHARMONIC, OPERA COMPANY OF

BOSTON, OPERA NEW ENGLAND, ORATORIO

SOCIETY OF NEW YORK, PHILADELPHIA

ORCHESTRA, PHILADELPHIA STRING

QUARTET, ROBIN HOOD DELL CONCERTS,

INC., ROUNDER RECORDS, ST. CECELIA

CHORUS, SALT LAKE MORMON TABERNACLE

CHOIR, SAN DIEGO SYMPHONY ORCHESTRA,

SAN FRANCISCO SYMPHONY ORCHESTRA,

SANTA FE CHAMBER MUSIC FESTIVAL,

SEATTLE OPERA ASSOCIATION & PACIFIC

NORTHWEST WAGNER FESTIVAL,

SKYLIGHT COMIC OPERA LTD,

UNIVERSAL JAZZ COALITION

3

Interest of Amici

Amici are a large group of disparate musical-

arts organizations who share in common a passion

for the preservation and growth of musical forms,

which are among the most important components

of America’s cultural heritage. They range from the

most prestigious and influential classical music organi-

zations in this country and in the world (e.g., Lincoln

Center for the Performing Arts, the Metropolitan

Opera, Carnegie Hall Corporation, New York, the

Los Angeles Philharmonic, the Philadelphia Orchestra,

and the Salt Lake Mormon Tabernacle Choir) to small

groups of performers (e.g., Apple Hill Chamber Players.

Nantucket Musical Arts Society) to associations for

the promotion and preservation of peculiarly American

music (e.g., Boston Bluegrass Coalition, New Orleans

Jazz Club of Northern California).

Whether, like the Houston Grand Opera, they

reach listeners and viewers in the millions,’ or, like

the Jazzmobile, play in the streets and the parks for

largely economically disadvantaged audiences,’ they

depend on radio as a major means not only of pub-

licizing their performances, but as a way of reaching

out to people who have little or no previous contact

with, or knowledge of, music outside the commercial,

popular sphere. Radio is a major means of audience

‘During a single season, the Houston Grand Opera has audiences

of 3 million attending 358 performances. An additional 10-12 mil-

lion radio listeners hear weekly performances over a 300-station

national network

Jazzmobile. a sixteen vear old New York organization, pro-

duces free outdoor summer concerts In many New York neighbor.

hoods and conducts jazz education workshops.

d

building for diverse kinds of music,' groups of musi-

cians,' and individual careers.’ Audiences are neces-

sary to the survival of many forms and varieties of

music which might otherwise be lost or forgotten,

immeasurably impoverishing our traditions and

our lives." And audience building, for these and sim-

ilar organizations, is a two-way street. Hearing opera,

bluegrass, symphonic music or jazz on the radio not

only encourages people to attend live performances,

with all the attendant benefits to society which that pro-

vides,’ it also provides a singular and unduplicatable

source of such music for persons who, for many

For example, Chamber Music America credits classical music

stations for expanding the number of people attending chamber

music concerts and estimates that the audience for chamber music

is now some 8,000,000 people. Living Folk Records and Concerts,

Inc. believes that without the support of radio stations that play

folk music and interview performers much of this fine tradition

would be lost to the public.

‘The Greenwich Philharmonia Orchestra, for example, has

found that when people listen to music on the radio, they begin to

go to concerts, and music becomes part of their lives.

American International Artists, a classical musician manage-

ment organization, has found that without classical music stations.

classical musicians lose access to the lhsteners which musicians

in-other fields almost automatically have over the radio. The Uni-

versal Jazz Coalition has found the same to be true of jazz musicians

Audience building is also frequently a prerequisite to that

yovernment financial aid which guarantees the survival of many

musical orgamizations. The National Endowment for the Arts,

for example, trequently looks to see whether particular organi:

zations areable. through radio broadcasts to reach greater audiences

than those actually attending performances as a prerequisite of

funding grants

Musi supports the yeneral economy rather than depletes

it In New York City, the arts generate $4.5 billion a year in expen:

ditures and receipts through such peripheral business as hotels,

restaurants, shopping and other activities. New York Tomes, April |.

19800 po $1. Musie is a major tourist attraction in many cities

Concert halls and musical centers have had profound impacts

on the neiwhborhoods in which they are located) For example,

property values in the Lincoln Center area have risen dramatically

since it was opened in 19620 Amicus Connecticut: Advocates for

the Arts a non profit lobbwving organization. estimates that every

dollar spent in the arts returns 25 dollars to the community

5

reasons, including age, disability or poverty, cannot

attend live performances."

In a more uplifting analogy to the way that popular

entertainment formats are “bait” to obtain audiences

for advertisers, specialized music and arts formats

provide a means for reaching a particular audience

which wants to know about coming cultural events,

concerts, hear and preview new recordings, etc.” Where

the specialty station is the only one of its kind - i.e.,

where it offers a unique format -- its disappearance

may deprive those organizations of their most effective,

if not their only means of communication with their

audiences and admirers;'’ creating a ripple effect

with public interest implications far beyond even the

loss of the format itself.

All of the amici want and need to use radio to

communicate their various but enormously significant

messages. All have ‘‘messages,” whether aesthetic

or informational, or both, of high value to listeners

and to society as a whole. None, however, are licensees

of broadcast stations - not because they eschew such

a role, but because no licenses are available where

they are located. The spectrum scarcity rationale

~See, for example. two very moving letiers, one from an elderly

retired couple, one from a recuperating patient in a mental hospital,

which were attached as Exhibits to the Comments of the WNCN

Listeners Guild in the Inquiry below. Joint Appendix in the 1).C.

Circuit, pp. 226, 227. These provided limited but eloquent testimony

to the virtually life-and-death importance that the access to good

music has for many disadvantaged Americans.

‘For example, the Boston Bluegrass Union depended upon

the country music format of Cambridge Station WCOP to reach

and build an audience for its beloved bluegrass music and the non-

profit concerts it promoted in the Boston area.

This is why a number of these cultural organizations have

been involved in struggles to save unique formats. For example,

the Association of Connecticut Orchestras supported the citizens

group to save WTIC-FM, Connecticut's only classical music station;

the Boston Bluegrass Union supported WCOP; and the New Orleans

Jazz Club of Northern California fought to save San Francisco's

Big Band radio station KMPX.

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for public interest regulation of the broadcast spectrum

is here made concrete. Many who wish to “speak”

may not, except by the sufferance of those few who,

by virtue of their licenses, would monopolize the air-

waves but for the public interest standard of the Act.

For all of these, the reasons discussed infra and

in the brief of the Respondents,'! amici urge this Court

to affirm the decision below requiring the FCC to

follow statutarily required procedures, enforce the

trusteeship concept, and regulate in the public interest,

especially where the loss of a unique format is at stake.

Descriptions of the amici follow, in alphabetical

order:

The American Symphony Orchestra, founded in

1962 by Leopold Stokowski, is the only major ensemble

in the United States which is governed by the musi-

cians themselves; it is a major musical resource which

serves a wide range of audiences in the New York

area, in part by performing free concerts in parks

and community areas.

American Symphony Orchestra League is an

organization which lobbies for and represents the

professional interests cf over 770 orchestras in the

United States.

American International Artists is a concert artist

management organization which seeks to promote

the highest quality in classical music performance

Amici here adopt by reference all arguments made in the

bnef of Respondents WNCN Listeners’ Guild, Inc., et al

7

Apple Hill Chamber Players is a_ performing

ensemble of nine permanent members who live and

work at Apple Hill Farm in Nelson, New Hampshire;

they perform 100 concerts a year throughout the United

States and encourage the participation and enjoy-

ment of amateur musicians at every skill level.

The Association of Connecticut Orchestras is

a non-profit asscciation of 22 orchestras, 8 youth

orchestras plus other performing groups and _indi-

viduals; its purpose is to encourage, promote and

mutually assist the development and needs of orchestras

throughout the state.

The Boston Bluegrass Union is devoted to the

promotion and preservation of traditional and modern

bluegrass music and presents approximately seven

concerts a year in the Boston area.

The Boston Symphony Orchestra is the second

oldest symphony orchestra in the United States. The

Berkshire Festival, the Orchestra’s summer home

in Lenox, Massachusetts, is perhaps the world’s finest

summer music festival and school. Its extensive record-

ings and its live concerts are broadcast to millions

of listeners across the country.

The Canticum Novum Singers is a choral organi-

zation which performs regularly in major New York

City concert halls. Their concerts have been broadcast

many times and they are particularly aware of the

importance of radio to artist and audience.

Carnegie Hall is a presentor of concerts as well

as one of the world’s foremost platforms for concert

attractions. The 1980-81 season will celebrate Carnegie

Hall’s 90th anniversary as an outstanding cultural

institution of national and international stature.

The Central City Opera House Association is a

producer of professional opera performances in Central

City, Colorado and a prime source of live classical

music in that part of the Western United States.

8

Chamber Music America is a national member-

ship service organization founded in 1977 to advance

the interests of chamber music.

The Chamber Music Society of Lincoln Center

is the resident chamber music constituent of Lincoln

Center. It performs 75 concerts annually in New York

and around the country. Hundreds of thousands of

radio listeners hear its Sunday afternoon concerts

live over Radio Station WNCN-FM.

Connecticut Advocates for the Arts promotes

and assists non-profit art organizations in Connecticut

through coordinated public action and political edu-

cation.

The Dallas Civic Opera, which has established

a reputation as one of the leading international opera

companies, presents operatic performances to the

Dallas public.

The Dessoff Choir has played an influential role

in broadening the repertory of choral music throughout

the United States and Europe by its pioneering per-

formances of works from the Medieval, Renaissance

and Baroque periods.

The Emerson Quartet is a group of exceptionally

gifted young musicians who have performed through-

out the United States and Canada.

The Greenwich Philharmonia Orchestra is a

locally based symphony orchestra of 85 professional

musicians, drawn principally from Fairfield County,

Connecticut and from Westchester, County, N.Y. and

New York City.

The Houston Grand Opera has 11,400 annual

subscribers and during a single season has audiences

of 3 million attending 358 performances throughout

the United States and Europe. An additional 10-12

million radio listeners hear weekly performances

over a 300-station national network of commercial

and non-commercial stations.

9

Jazz Coalition Inc. is 4 membership organization

which works to stimulate a vital jazz scene through

service to musicians and the music community of

greater Boston. They produce jazz concerts and sponsor

educational programs.

Jazzmobile Inc. is a New York organization dedi-

cated to the preservation, propagation and appreciation

of jazz. They produce concerts and conduct jazz edu-

cation workshops.

The Knoxville Symphony Orchestra is classed

by the American Symphony Orchestra League as a

Metropolitan Orchestra because of its $400,000.00

budget.

The Kodaly Center of America is an organization

designed to deliver the Kodaly concept of music edu-

cation to teachers, performers and children in public

and private institutions throughout the United States.

Lincoln Center for the Performing Arts, Inc. is

New York’s, and one of the world’s, finest pertorming

arts center. Constituent organizations within Lincoln

Center include the New York Philharmonic, Metro-

politan Opera, Julliard School, Library and Museum

of the Performing Arts. New York City Ballet, New

York City Opera, Chamber Music Society of Lincoln

Center, and Film Society of Lincoln Center.

Living Folk Records and Concerts Inc. is a non-

profit organization that has produced folk music

records and promoted folk music concerts in the Boston

Cambridge area for the past ten years.

The Los Angeles Mozart Orchestra is a professiona!

chamber ensemble which was founded in 1974.

The Los Angeles Philharmonic, an orchestra

of internaticnal reputation, broadcasts its concerts

weekly to over 200 radio stations via National Public

Radio's satellite system. An October 1978 performance

was telecast live by satellite and seen by an audience

of 30 million in the United States and Europe.

10

The Metropolitan Opera, one of the world’s premier

opera companies, broadcasts its performances to over

10 million listeners on over 300 com ercial and non-

commercial radio stations in the United States. The

Public Broadcasting System telecasts four or five

“Live from the Met” programs a season.

Music Associates of Aspen, Inc. sponsors the

Aspen Music Festival and Aspen Music School, probably

the foremost summer institution for advanced musical

study in the world.

The Nantucket Musical Arts Society has for 22

years brought a rich variety of chamber groups and

soloists to Nantucket, Massachusetts every July and

August. They also run the island's only music school,

which trains students from kindergarten through

high school.

The New Orleans Jazz Club of Northern California

is dedicated to the education, preservation and _ pro-

motion of traditional jazz. They print a monthly news-

letter.

The New York Choral Society is a performing

organization with 200 singing members. It presents

an annual series of concerts at Carnegie Hall.

The New York City Opera was organized in 1944

to present the highest quality opera to audiences at

the lowest possible prices. Radio station WNCN-FM

has broadcast 10 lve performances over the past

two vears, and also broadcasts an annual “Operathon”™

to attract new subscribers

The New York Philharmonic ts the oldest symphonic

organization in the United States and has played a

leading role in American musical life and development.

Weekly radio concerts of the Philharmonic are heard

on over 250 commercial and non-commercia. radio

stations in the U.S. and Canada. The Philharmonic

utilizes the facilities of Radio Station WQXR for a

vearly fund raising and subscription drive

1]

‘The Opera Company of Boston is a cultural insti-

tution in the City of Boston and one of the United States’

leading opera companies.

Opera New England, an offshoot of the Opera

Company of Boston. brings opera to thousands of

school children in four New England states. These

operas are specially staged for children.

The Oratorio Society of New York, the second

oldest musical organization in New York City, is a

chorus which has presented many American premieres

and commissioned works by distinguished companies.

The Philadelphia Orchestra, until this year under

the baton of Maestro Eugene Ormandy, is world

renowned not only for its spectacular concerts, but

for its many and varied recordings, which have been

heard over radio stations across the country and

around the world.

The Philadelphia String Quartet, which is in

residence at the University of Washington, is world

renowned and has toured extensively in Europe,

South America and the Far East.

Robin Hood Dell Concerts. Inc. is the summer

home of the Philadelphia Orchestra. On its fiftieth

anniversary in 1979, President Carter stated that

“The Dell has made invaluable contributions to the

cultural vitality of the City of Philadelphia and...

has been a model for the Nation and the world for

voluntary partnerships between private citizens

and local government.”

Rounder Records is a major independent record

company, which manufactures and distributes acoustic

and folk music records.

The St. Cecilia Chorus has approximately 160

singers and has presented the classic choral repertoire,

less familiar works of the masters, and United States

and world premieres of more than 58 contemporary

works. Many of its performances have been broadcast.

12

The Salt Lake Mormon Tabernacle Choir broad-

cast its first choir program in 1929. Today, it is the

oldest continuous radio program on national networks,

‘arried by 68 television and 355 radio stations in the

United States and Canada. It is carried by shortwave

to many parts of the world and more than 800 radio

and television stations worldwide release the program

weekly.

The San Diego Symphony is California's largest

regional orchestra; it provides Southern California

with 100 concerts a year.

The San Francisco Symphony serves a community

of approximately 450,000 with a permanent subscription

list of over 20,000._It is the only major orchestra in

Northern California. Broadcasts of its performances

‘

are played on 31 radio stations across the U.S.

The Santa Fe Chamber Music Festival presents

an ever-increasing range of chamber music to New

Mexicans and actively commissions new works. Its

concerts now take place not only in Santa Fe, but in

Seattle and New York City. The Festival’s last two

seasons have been broadcast live.

The Seattle Opera Association and Pacific North-

west Wagner Festival is the largest arts organization

in the Pacific Northwest. Each year they present a

full season of five works, with six performances each,

four in the original language and two in English

translation. Seattle Opera performances are regularly

broadcast to national audiences.

The Skylight Comic Opera presents light opera,

operetta, vintage musical comedy, modern opera and

works for the musical theatre not generally included

in the standard repertory.

The Universal Jazz Coalition assists jazz artists,

both established and emerging, with low cost public

relations and promotion and with advice on concert

production and career guidance. The Coalition produces

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concerts, seminars, workshops, conferences and

publishes a jazz catalogue, newsletter and monthly

calendar.

POINT I

The Policy Statement Unlawfully Restricts the

Hearing Rights of Listeners Under Section 309(d)

of the Communications Act

In Office of Communication of the United Church

of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966), it was

held that television viewers had standing to file a

petition to deny renewal of a television station license

under Section 309(d) of the Act and to obtain a hearing

on complaints that the station’s program service

was deficient in various respects which would preclude

the necessary finding that renewal would serve the

“public interest, convenience and necessity.” The

Commission did not seek reargument or review of

this decision and repeatedly cited it in subsequent

decisions. It has been cited at least eight times in

opinions of this Court.

Nothing in the opinion or in the Act itself sug-

gests that the Commission may, for reasons of admin-

istrative convenience or otherwise, narrow or curtail

the right of responsible public groups to question

the quality of a station's service or its responsiveness

to local needs in a renewal proceeding or any other

licensing proceeding requiring a public interest find.

ing. Thus, the narrow question in this case is whether

the Commission can properly determine as a result

of a general and abstract inquiry that in no conceivable

case can any public group ever succeed in demon.

strating that a change in radio program formats is

contrary to the public interest.

14

More precisely, because the ultimate burden of

proof is on the licensee (See Office of Communication

of the United Church of Christ v. FCC, 425 F.2d 543

(D.C. Cir. 1969) ), the question is whether all radio

program formats are conclusively presumed to be in

the public interest without regard to public reaction. '-

No party contends or has ever contended that the

Commission should undertake the comprehensive

regulation of all radio program formats.

The public interest standard as enacted in 1927

and reenacted in 1934 included as its primary element

the provision of a program service which is responsive

to a broad spectrum of public tastes, needs and inter-

ests. The legislative history indicates that commer-

cial incentives could not be relied upon to provide

this kind of service. See, e.g., the statement of Secre-

tary of Commerce Herbert Hoover that “no one can

raise a cry of deprivation of free speech if he is com-

pelled to prove that there is something more than

naked commercial selfishness in his purpose.” |

The Federal Radio Commission was formed in

March 1927 and immediately began a comprehensive

reassignment of the broadcast spectrum giving prefer-

ential treatment to stations engaged in general public

service and assigning less desirable channels and

hours to stations operated by educational institutions,

churches, unions and other so-called “propaganda”

stations. During this period “Connecticut State College

‘Some formats, eg. religious, are not even tested by the

need to sell time to advertisers.

Proceedings of the Fourth National Radio Conference and

Recommendations for Regulation of Radw. Conference called

by Herbert Hoover, November 9-1]. 1925, Washington, 1) C..G P.O.,

1926. p |

15

was shifted nine times, another educational station

was shifted nine times, two others seven times and

four others six times.””!

At the hearings preceding the 1934 Act, the National

Association of Broadcasters advised the House Com-

mittee that it was the “manifest duty” of the Radio

Commission to examine a licensee’s program service

in renewal proceedings, and that the provision of

programs “concerned with human betterment” was

the “principal test” applied by the Commission in

making assignments in the previous seven years.’*

The policy of assuring service to all tastes was

explained by the Radio Commission in the Great

Lakes Statement:

“The entire listening public within the service

area of a station, or a group of stations in one

community, is entitled to service from that

station or stations. If, therefore, all the pro-

grams transmitted are intended for, and inter-

esting or valuable to, only a small portion of

that public, the rest of the listeners are being

discriminated against. This does not mean

that every individual is entitled to his exact

preference in program items. It does mean.

in the opinion of the Commission, that the

tastes, needs and desires of all substantial

groups among the listening public should be

met, in some fair proportion, by a well-rounded

program, in which entertainment, consisting

of music of both classical and lighter grades,

religion, education and instruction, important

public events, discussions of public questions,

‘Herring, E. Pendleton, “Politics and Radio Regulation,”

Harvard Business Review, Col. 13, No. 2, January 1935, pp. 167-

174, 172, Barnouw, Erik, A Tower in Babel, New York. Oxford

Univ. Press, 1966, p. 260.

Hearings on HR 8301, 73rd Cong., p. 117.

16

weather, market reports and news and matters

of interest to all members of the family find

a place.”'®

A number of the most profitable radio stations

in the nation are operating on radio frequencies

obtained during the 1928-1934 period by promises

to provide program service responsive to a wide spectrum

of public needs. As the Commission stated in the

Blue Book,

“It has long been an established policy of broad-

casters themselves and of the Commission

that the American system of broadcasting

must serve significant minorities among our

population, and the less dominant needs and

tastes which most listeners have from time

to time.”

Dr. Frank Stantion of CBS was quoted as testi-

fying:

“It is known that the New York Philharmonic

Symphony Orchestra, the Columbia Work Shop,

Invitation to Learning, Columbia Broadcasting

Symphony and many other ambitious classical

programs never reach the largest audience,

but Columbia. nonetheless, puts them on year

after year for minorities which are growing

steadily.” |

While it is true that the Commission did not order

broadcasters to adopt particular formats, the Com-

mission did in 1927-34, and does today, regularly

designate meritorious programming issues in renewal

proceedings at the request of broadcast applicants. ~

2 Fed Radio Comm Ann Rept at 16611928) quoted in Kahn,

Frank SS. Documents of American Broadcasting, dd ed at 152

Prentice Hall, Englewood Cliffs. NJ

Id at 164

“Wedford Broadcasters Ince Is FCC 2d S17, SIS (1969).

Viduest Raduo Telertstan Inc ts FOC 2d DOLL, 10104 1969

17

Many incumbent licensees have relied on the superi-

ority of their program service to defeat competing

applicants.'’ The Commission appears to have iittle

difficulty deciding in these cases questions which

the Policy Statement argues are hopelessly complex.

For example, it recently decided that the foreign lan-

guage programming of Station WHBI-FM in Newark

was not “unique” and therefore did not aid the licensee

in a meritorious programming issue.*"

Until recently, the Commission has never indi-

cated that it doubted its responsibility to assure that

radio formats contributed to overall diversity of

service. Thus, until recently, the Statement of AM

or FM Program Service, included in the Commission's

license renewal application form,*' contained these

questions:

“17. Describe the applicant's proposed _ pro-

gramming format(s), e.g., country and western

music, talk, folk music, classical music, foreign

language, jazz, standard pops, etc., and the

approximate percentage of time per week to

be devoted to such formatis).

1s. State how and to what extent (if any) appli-

cant proposes to contribute to the overall diver-

sity of program services available in the area

or communities to be served.”

The answers to these questions were treated as

binding representations for the term of the license.

A licensee who proposed te change format in mid-

term was required to advise the Commission and

justify the change in terms of overall diversity of

service. It is true, of course, that these changes pre-

See eg. WPIX, Inc. 68 FLCC 2d 381 (1975)

Cosmopolitan Broadcasting Corp., 75 F.C.C.2d 423. 425 (1980)

FCC Form 30.5. Section [Via)

18

cipitated little, if any, Commission action, but that

is understandable. The Commission has virtually

no field staff other than technicians. The Broadcast

Bureau in Washington cannot be expected to investi-

gate and judge the responsiveness of program service

to local needs without the aid of concerned parties.

Thus it was not until the United Church case that

such issues were taken up in the context of license

renewal and transfer proceedings. When the unique

format issue arose in Atlanta,-* it was not new. It

had been routineiy designated in hearings upon appli-

cation of license applicants. The element that was

new Was designation at the request of public groups

and, perhaps, the fear that the Commission's processes

would be overborne by a horde of disgruntled devotees

of one or another format.

We are brought back to the Court's wise words

in United Church:

“The fears of regulatory agencies that their

processes will be inundated by expansion of

standing criteria are rarely borne out.” (359 F.2d

at L006.)

Sensitive to the Commission’s fear, the Circuit

Court has itself erected more severe barriers to public

participation in format cases than in others. Thus,

it is not enough that an individual or a responsible

group be concerned. There must be “significant public

grumbling.” In the decided cases this has often involved

resolutions and statements of legislative bodies and

important public officials and wide participation of

public groups. Thus the Court has given full weight to

_our national tradition that public response

is the most reliable test of ideas and performance

in broadcasting asin most areas of life[and to] the

(Commission view ... that we have traditionally

Citreens Committee to FOC, 436 F 2d 263.D0C) Cir, 1970)

19

depended on this public reaction rather than

on some form of governmental supervision or

‘censorship’ mechanism.” (/d. at 1003.)

The Commission, on the other hand. would desig-

nate meritorious programming § issues only at the

instance of licensees and usually as a shield against

license challenges.’' In the light of the Commission's

repeated consideration of meritorious program service

during the 1928-1934 period, Congress must have

intended that to be embraced within the public interest

standard. It could not have contemplated that mer.

itorlous programming be included in the public interest

standard at the sole option of the licensee. Any such

interpretation would deprive listeners of their rights

as parties in interest under Section 309(d).

In Deregulation of Radw, Docket No. 79-219. Notice of Inquiry

and Proposed Rulemaking, released September 27, 1979. the Com

mission has proposed that consideration of programming be barred

In renewal proceedings, except as follows

“Under an alternative proposal arising with respect to com

parative renewal proceedings, an incumbent licensee might

be allowed to voluntarily ask for Commission consideration

of its nonentertainment programming or of its entertain

ment programming as a basis for finding that the licensee's

past service is sufficiently mentorious to overcome a chal

lenger’s advantages on other grounds. In considering this

alternative proposal, we again want to emphasize that our

fundamental goal is service to the public. The courts have

recognized that both nonentertainment programming

and entertainment programming’ can meet public needs

"E.G. Office of Communication of United Church

of Christ v. FOC, 359 F.2d at 994.

E.G. Cosmopolttan Broadcasting Corp. FCC. 581

F 2d 917, 981 DC) Cir 1978)"

20

POINT II

The Policy Will Unlawfully Preclude the Com-

mission from Taking a “Hard Look” at First

Amendment Claims by Public Intervenors

This Court has noted that:

“It is the right of the viewers and listeners,

not the right of the broadcasters, which is

paramount.’’*#

The Court has also made clear that the listener’s

First Amendment rights are not limited to public

questions or even to speech but include significant

cultural expression:

“It is the right of the public to receive suitable

access to social, political, esthetic, moral and

other ideas and experiences which 1s crucial

here. That mght may not constitutionally be

abridged either by Congress or by the FCC.”

(Id.)

Moreover, the decision holds that this balance

can be compelled even when no one will pay for the

time.

Thus format petitions by public groups present

clear First Amendment claims. They involve directly

the ultimate First Amendment objective of culturally

diverse service. Public parties seeking to present

these claims are the persons whose rights to cultural

diversity are in jeopardy.

The conditions which public intervenors must

meet to establish materiality under Section 309(d)

of the Act as interpreted by the Court of Appeals (.e.

proof of uniqueness, public demand and commercial

Red Lion Broadcasting Cot FOC. 395 US. 367, 49061964)

21

viability) are restrictive, and few cases are likely to

arise, much less go to hearing.2°

To obtain a hearing, public intervenors would

be compelled to show that the prediction upon which

the Commission's new policy is based (i.e., that com-

mercial incentives will usually serve all significant

minority tastes) has failed in practice. Thus the inter.

pretation of 309(d) adopted by the Court of Appeals

can be viewed as simply a specialized application

of the hard look doctrine outlined in WAIT Radio v.

FCC, 418 F.2d 1153 (D.C. Cir. 1969), cert. denied, 409

U.S. 1027 (1972).

In that case, a daytime station in Chicago sought

a waiver of the FCC’s clear channel rule which pro-

hibited it from operating at night. It alleged that

its programming of “good” music and forum discussions

on matters of public interest was a unique AM service

and that its night time signal would be directionalized

and would not interfere with the clear channel signals

in the sparsely populated “white” areas which the

clear channel stations were intended to serve. The

Commission rejected the request for waiver on the

sole ground that its rule would be violated. The Court

conceded that, “An applicant for waiver faces a high

hurdle even at the starting gate.’ But it noted that

“the agency's discretion to proceed in difficult areas

through general rules is intimately linked to the

existence of a safety valve procedure for consideration

of an application for exemption based on _ special

circumstances.” The Court did not think it necessary

to consider to what extent the overbreadth principle

of First Amendment cases enlarged the Commission's

We know of only one hearing in a format case resulting from

a pubhe petition to deny, and none which went to a final decision

by the Commission. Osten the controversy over loss of a valued

format produces such an outpouring of loyalty and advertiser

interest that the licensee readily agrees to maintain the format

on at least a part-time basis or another licensee agrees to serve

that program taste.

22

duty to consider waivers, but it held that “the mani-

fest importance of the subject matter’ required a

“hard look.” WAJT has since been followed by the

Commission and has been cited in more than 50

decisions.

Unless the Commission’s new policy is more

absolute than a formal rule, the very grounds which

required a hearing in WAIT would require a hearing

in format cases, i.e. the prima facie showing that

a unique and culturally valuable service was at stake

and that the presumptions upon which the general

rule is based had failed in practice. Under the Policy

Statement the persons whose First Amendment rights

are “paramount”, i.e., the listeners who wish to pre-

serve unique, diverse and culturally valuable pro-

gram services, would be the only parties who could

not be heard.

CONCLUSION

The judgment below should be affirmed.

Respectfully submitted,

ANDREW JAY SCHWARTZMAN

Media Access Project

1609 Connecticut Avenue, N.W.

Washington, D.C. 20009

(202) 232-4300

Counsel for Amici American Symphony

Orchestra, et al.

‘Upon remand the Commission considered the application

on its merits and found sufficient dangers to the pubiic interest

in the proposed waiver to justify dental. The Court affirmed

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