McGowan, Tamm and Robb, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
The CITIZENS COMMITTEE To Preserve the present programming
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN
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, *fn1 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 ...