WNCN LISTENERS GUILD v. F. C. C.

Nos. 76-1692, 76-1793 and 77-1951.

610 F.2d 838 (1979)

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.

United States Court of Appeals, District of Columbia Circuit.

Decided June 29, 1979.


Attorney(s) appearing for the Case

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.

Before WRIGHT, Chief Judge, and BAZELON, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.


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:

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