(concurring in the result):
As a member of the original panel in this case, I voted to sustain the Commission’s action. At that time, I was *208concerned, as was the Commission to a limited extent,1 with the First Amendment implications of FCC efforts to encourage diversity of programming. However, in light of quite recent panel decisions of this Court which have required the FCC in license assignment proceedings to consider reductions in diversity of entertainment programming caused by format changes, I deemed the occasion inopportune for a thorough ventilation of the First Amendment issues raised by consideration of diversity. I, therefore, voted to affirm the Commission’s determination that diversity of programming was not seriously threatened by GCC’s proposed format change and stated that “at the present juncture and with the facts of this case, the current approach [of the FCC] of minimizing regulation except where diversity is most seriously threatened appears to be reasonably in accord with the goals of the Federal Communications Act and the First Amendment.”2 However, I voted to grant the petition for rehearing en banc and now the Court holds that the Commission has not sufficiently considered the potential injury to diversity of programming caused by GCC’s proposed format change. Pursuant to that holding the Court remands the case for further consideration of this issue and certain subsidiary factual issues. Issues of the weight to be given considerations of diversity and the types of proceedings in which it will be considered are inextricably bound up in the First Amendment values applicable to program regulation.3 I, therefore, support the remand since it will necessarily require the FCC to more fully explore the First Amendment issues in the area of programming, the same issues which were the subject of my concern in the original panel opinion.4
In light of this rehearing en banc it is particularly appropriate to expand upon the First Amendment concerns which I briefly noted in the original panel opinion. For the present at least, this Court has exclusive jurisdiction over appeals from FCC licensing decisions.5 Thus, our rulings on the scope of the Commission’s authority in licensing proceedings are particularly important to the functioning of the Federal Communications Act. In this case, the Court sustains a broad view of the Commission’s authority in the delicate area of programming with nary a syllable spoken to the First Amendment implications of its decision. I do not believe this broad view should go unchallenged.
The full breadth of the principle the Court enunciates today requires an extensive review of FCC programming policy and the First Amendment, a review which may take me beyond the specific issues presented by this case. Just as the Court views the authorization *209sustained in this case as rooted in basic principles of the Act, so I feel that the basic principles of the Act have developed with little or no consideration of the First Amendment. At oral argument of this case, when counsel expressed concern that the authority established here might constitute censorship, one of my colleagues correctly reminded him that the FCC reviews programming all the time. But my concern is that the whole gamut of FCC programming policies have developed over the last forty years, twenty-five of which I have sat in review of those policies, in a manner obdurately resistant to First Amendment values. I have in recent years grown increasingly disturbed by this situation and the accretion of my experience finally led me to a comprehensive consideration of the First Amendment and FCC programming policies.
For the convenience of the reader, I shall briefly outline the structure of this opinion. In Part I, I address the traditional schema of the First Amendment and the issue of what regulatory actions that schema enjoins upon the FCC. (Pp. 4-10) In Part II, I consider possible developments of First Amendment doctrine beyond this traditional schema in the area of telecommunications and two reasons which may support such a development. (Pp. 10-15) In Part III,.I explore present FCC programming policies and suggest the extend to which those policies are justified by the development of First Amendment doctrine discussed in Part II. (Pp. 16-30) Finally, in Part IV, I consider the present case in light of the preceding discussion. (Pp. 30-32)
I.
I shall begin with the role of antitrust analysis in telecommunications law. Although there was for a time some doubt about the proposition, it is now settled that the Commission may, indeed, must, consider diversification of ownership in the licensing of broadcast frequencies.6 There are the normal competitive justifications for such a policy since, after all, telecommunications is a business, primarily an advertising business. One may perceive values of localism and promotion of small business in that policy as well. The FCC correspondingly has developed detailed common-ownership, duopoly, chain broadcasting and local control rules (and is considering cross-ownership rules) which properly guide in substantial part its licensing decisions.7
*210However, there is more than economic justification to this policy. I had occasion almost twenty years ago to state of the diversification guides:
These guides, like the First Amendment, rest “on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public. . . . ” Diversification, according to the Commission, “protects the public from being placed in the position of having to depend upon a single or monopolistic source for its information about current affairs.” 8
For conceptual purposes, diversification of ownership represents a policy supportive of unrestricted freedom of the press, in particular the encouragement of the widest possible range of journalistic and artistic9 endeavor.
While the policy of diversification is supported by both antitrust considerations and these First Amendment considerations, one must not suppose that these two supports are complementary. A successful policy favoring competition for advertising dollars, as the Court suggests, may well result in, not creative journalism, but commercial pabulum directed toward those whose incomes are most often spent on the advertiser’s wares.10 A policy favoring quality journalism, on the other hand, may be anti-competitive since the broadcaster in pursuit of common notions of journalistic excellence may refuse to direct his programming at the optimal advertising audience. Journalism, like lawyering properly viewed, is not designed to “sell” a “product” but to apply rational intelligence to human experience.11 It is by its nature anti-competitive in the economic sense.
There is thus no inevitable confluence between diversified ownership and quality journalism. Rather the proposition I spoke of in the Clarksburg case 20 years ago rests on an irreducible principle not subject to verification: to paraphrase Learned Hand, a multitude of tongues, completely unrestricted in speech, will somehow over the long run produce a multitude of ideas expressive of the culture and interest of all the people, such that national political debate and artistic achievement will flourish.12 Our faith is *211that this system will produce more diversity of ideas than a system in which the government decides who shall speak and on what subjects. We thus would do well to remember that the concept of a multitude of tongues unrestricted in speech is the rule and the concept of a diversity of ideas is only a hoped-for goal.13 This Court has recently been warned to proceed cautiously, if at all, away from the rule in pursuit of the goal.14 I have previously indicated my agreement with that precept.15 A healthy respect for the limits of human understanding in this complex area requires no less.
So, while it may be true that the licensee’s “business judgment”, to use former Chairman Burch’s term, is not necessarily or empirically supportive of the goal of a multitude of ideas, it is part and parcel of unrestricted freedom of the press. We would be confronted with serious First Amendment issues indeed if the Commission were ever to hold that otherwise protected16 speech- — -broadcast to maximize advertising revenues — loses its First Amendment protection, while protected speech — broadcast to maximize the producer’s sense of fulfillment or to maximize diversity of ideas- — remains under First Amendment protection17
It would seem that diligent efforts to disperse ownership of the electronic media and disperse control over programming would adequately protect First Amendment interests. However, for various reasons including the lack of diligence of the FCC and the nature of the electronic communications industry, concentration of ownership remains a serious problem.18 Furthermore, the rise of network programming has largely centralized programming decisions despite some FCC efforts to encourage *212licensees to take a greater degree of responsibility for what is telecast over their facilities.19 Finally, the FCC’s inability to forestall trafficking in broadcast licenses20 has meant that diversification of ownership is at times an empty gesture resulting only in inordinate profits to private licensees and no increase in the variety of programming. In turn, the huge price paid for a license is borne by the viewer in the form of excessive commercial time and mass appeal programming, further reducing the potential of the individual licensee as an innovative and diverse speaker. The experience of the diversification guides thus suggests the concept of expanding the multitude of tongues to vindicate First Amendment values is more dream than reality. This is, of course, not an argument against further attempts to increase diversity of ownership but rather only a recognition that the traditional schema of the First Amendment may be inadequate in the field of telecommunications.
II.
I have said that the Commission can and should attempt through the licensing process to ensure a multitude of tongues in order to provide the people with a multitude of ideas. This authorization is founded on values contained in the First Amendment and is thus presumed to be part of the FCC’s “public interest” standard.21 If these First Amendment values are allowed to venture beyond the strict rule of a multitude of tongues unrestricted in speech, to include protection for direct actions designed to increase diversity of ideas, the door would be opened to a more expansive view of the public interest standard. This expansive view, also founded on the First Amendment, could include an authorization to directly increase diversity of ideas and programming through means other than increases in the number of speakers. The Supreme Court in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 385, 390, 394, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969) gave a limited approval to such a view of the public interest standard.22
If Red Lion holds that First Amendment values authorize FCC actions designed to directly increase diversity of ideas, then Red Lion might in the appropriate case permit judicial intervention to require the FCC to promote diversity of ideas through means other than increases in the number of speakers. This is consonant with the structure of the Act since the FCC has no special expertise’in the First Amendment. This *213Court, in requiring the FCC to promote diversity through denial of license assignments which substantially affect over-all diversity of programming, bases its action on the statutory goal of “secur[ing] the maximum benefits of radio to all the people. . . . ” 23 Since radio is neither a public utility nor a common carrier,24 and this presumed statutory goal must be reconciled with § 326 of the Act25 and the First Amendment itself, I assume the import of this goal relates also to the First Amendment goal of a diversity of ideas.26 The question to be faced ultimately is thus whether this Court should move away from the rule of a multitude of tongues unrestricted in speech in pursuit of the goal of a true diversity of ideas.
I first digress to consider what reasons might justify this movement away from our traditional notions of the First Amendment. The most obvious reason is that there are in terms of present technology 27 limits on the FCC’s ability to increase the multitude of tongues. These limits are primarily associated with the scarcity of broadcast frequencies and the expense involved in the erection of facilities necessary to exploit that frequency. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388-390, 396-400, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). These limits are not simple products of a free economy; they are mandated by law.28 These limits are not themselves violations of the First Amendment. They were and are necessary, or so we continue to assume absent evidence to the contrary, in order to prevent total anarchy in the broadcast media.29 Since the principle that a multitude of voices will produce a multitude of ideas is at bottom premised on free entry into the media of communication, that principle must be re-examined to insure that the process of limitation of entry does not itself deny the First Amendment rights of those who might otherwise speak through the scarce media. This re-examination is made all the more necessary by the checkered history of FCC commitment to encouraging the maximum *214number of speakers and its acquiescence in anti-competitive practices and trafficking in broadcast licenses.30
One might note another area in which an unrestricted adherence to a multiplicity of voices alone may cut against constitutional values. I have previously noted the “involuntary” nature of some television and radio listening.31 To this involuntary aspect of telecommunications I have also added the observation that radio and especially television is a particularly forceful mode of communication which has by its nature some qualities of “action” or “speech plus.” In short, the immediacy and all-pervasive nature of telecommunications present a form of speech unknown to the framers of the Constitution.32
The combination of limited access and the particular nature of radio and television communications now poses the question whether in practice our complete reliance on a multitude of voices to promote First Amendment values is justified. I am beginning to have some trouble with Mr. Justice Douglas’ view that this reliance is justified.33 I hasten to note that I would not “balance” First Amendment values against other values of public order; rather I would seek only to reconcile the First Amendment within itself and within the context of other constitutional values. I do this with the full knowledge that any such reconciliation may involve inquiry into the content of speech, indeed, picking and choosing among speakers on the basis of the content of their speech. This process of choice, once begun, may well be difficult to halt short of disaster. At least the thought of future horribles ought not shut off confrontation with present failures.34 I believe that pretending there is no problem may *215be more disasterous in the long run than judicious consideration of appropriate and limited solutions. I proceed to a discussion of possible efforts to locate and address failures in the promotion of First Amendment values within the present system of telecommunication regulation. .
III.
The first project for consideration if we wish to regulate programming to achieve diversity is to establish what sort of failures of diversity will give rise to the need for regulation. Once having established that or having confronted a reasonable probability that left to their own devices the limited number of licensees will not produce a true multiplicity of ideas, there are two possible paths to explore. First, we might establish duties of inquiry on the licensee which, if exercised, will cause the collection of information potentially productive of diversity. Second, we can control, deter or punish certain failures to produce diversity. These two approaches are double-edged, in that they both define an absence of diversity and remedy that absence.
The FCC has in fact implemented the first approach by requiring licensees or applicants to survey the community they wish to serve to develop information on tastes and interests within the community. This is the so-called “ascertainment” requirement.35 The Commission has also required the licensee to take reasonable measures to insure the accuracy of information it broadcasts on controversial 36 issues of public importance so that the licensee does not present slanted or distorted public affairs programming37 or defame innocent individuals.38 These duties are *216part of the “fairness doctrine.” 39 Related to such duties is the general duty to operate a frequency as a journalistic or artistic endeavor and not as a broadcast supermarket.40 None of these duties on their face raise First Amendment issues since they do not directly regulate protected speech. Rather these duties merely establish conditions applicable to certain activities of a broadcaster prior to the formulation of protected programming 41
The FCC has also implemented to some extent the second approach discussed above and has in the process created grave First Amendment issues. First and foremost, in regard to the fairness doctrine, the Commission has not only placed duties of accuracy on the licensee but has also required the licensee to present “both sides” of controversial issues of public importance. This duty is applicable even if the broadcaster’s reasoned judgment is that the “other side” has no merit.42 Furthermore, the Commission has considered fairness doctrine complaints issue by issue and where it has found violations, it has strongly intimated that certain opposing views must be aired.43 The Commission has also required licensees to grant specific reply time to subjects of personal attack and to the opposing side of a political editorial, as well as grant equal time to candidates for public office.44 In license renewal pro*217ceedmgs, the Commission has formulated its own concept of “balanced programming”, a concept reflected in programming “guidelines” which, if followed by the licensee offer substantial protection from hearings on applications for renewal.45 And pursuant to our mandate in Citizens Committee of Atlanta v. FCC,46 the FCC has to some extent considered directly the impact on program diversity of radio format changes in assignment and renewal hearings. In that consideration the Commission has the authority to deny an assignment or renewal request because proposed programming, proposed speech if you will, reduces the diversity of programming in the service area. Finally, as discussed below, the Commission has chosen among applicants in comparative proceedings on the basis of programming proposals. Either a requirement to air that which the journalist does not wish to air,47 or a denial of a forum (a license) on the basis of the content of proposed or past speech48 would in any context other than mass communications be an uncontestable denial of freedom of the press. Are the differences between the broadcast media and the print media such as to permit this distinction?
I think it instructive at this point to distinguish between, on the one hand, petitions to deny49 or petitions to require compliance with specific aspects of the fairness doctrine,50 and, on the other hand, comparative licensing proceedings.51 In the former, I can perceive no rationale for anything a) approaching a requirement that the licensee air certain political views or artistic achievement or b) approaching a possible denial of a license on that basis. Such requirements would in any other context directly contravene freedom of the press and cannot be justified by the nature of telecommunications. Even assuming that scarcity of broadcast frequencies is a reality today or will continue to be a reality in the future,52 scarcity cannot justify intrusions into programming decisions in a non-comparative situation since its factual predicate — competing applications — is lacking. The general intrusive nature of telecommunications itself cannot without more justify these deprivations of freedom of the press.53
Despite the seemingly persuasive force of this argument, it must give way to the holding in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). That case upheld the personal attack and editorial reply aspects of the “fairness doctrine” as consistent with the First Amendment. How far beyond this the case car*218ries is a matter of serious doubt after the Democratic National Committee case54 and the Miami Herald case.55 In the latter case, the Supreme Court, without citing or distinguishing Red Lion, held that a right of reply to a political editorial in a newspaper was a denial of the freedom of the press. I would read Red Lion as strictly limited to the personal attack and editorial reply rules.56
The comparative licensing proceeding strikes me as a generically different situation. Here the scarcity rationale is appropriate.57 When faced with mutually exclusive applicants 58 for the same frequency the FCC is in a position where it must by the nature of the proceeding choose among speakers. It might be objected that the FCC could choose among speakers on the basis of criteria other than the content of their speech. Such a proposition ignores the realities of the choice. To allocate frequencies on the basis of allegedly “content-neutral” standards such as financial stability, past experience or diversification effect may well have profound effects on the content of speech through the establishment of a class of preferred speakers. One suspects that there is no such thing as a “content neutral” standard. Furthermore, it is difficult to perceive how the important choice among applicants can be made on the basis of these factors alone when the raison d’etre of the grant of a license is the nature of the programming.59 To attempt to make the license choice on the basis of content-neutral factors, if any exist, is analogous to choosing a relief pitcher on the basis *219of his criminal record and off-season earnings.
This Court and the FCC have consistently reviewed program proposals in ruling on mutually exclusive broadcast applications.60 While it is generally stated that the Commission will not consider differences in programming proposals unless such differences are significant and are specifically designated as a comparative issue, the reports are filled with instances, at least prior to 1965,61 in which differences in program figured significantly in the comparative process.62 Of particular relevance to the situation we confront in this case are a series of Commission decisions, including some after 1965, which accord comparative weight to program proposals designed to meet a special, unfulfilled community need.63 This consideration of program proposals is significantly distinct, or so it appears from the reported cases, from the consideration given to program proposals in uncontested initial licensing or renewal proceedings.64 To be sure, we have emphasized that the Commission cannot choose on the basis of “political, economic or social views of an applicant.” 65 However, where the Commission seeks only to encourage licensees or applicants to meet community needs which at present are not being fulfilled we have permitted and even approved such efforts as consistent with the First Amendment.66 I also note that this consideration of program content in comparative proceedings is calculated to promote economic and journalistic competition among licensees by raising the spector of potential competition.67
It would seem that authorizing this kind of limited and specific consideration of content does not threaten the licensee with censorship. It would only adduce one factor which must be considered in the difficult and sensitive task of allocat*220ing a scarce resource in a manner consistent with the First Amendment value of a diversity of ideas.68 In any event, I do not believe that this precedent can support consideration of content in a non-comparative proceeding; nor do I believe it can support any “guidelines” which insulate a licensee from a contested renewal hearing. This precedent also does not support any FCC directives requiring the licensee, de facto, to air certain material. Finally, and most important, this precedent is not self-executing. Difficult questions remain as to the specific application of the principle developed above and the manner of its enforcement, questions which must be considered in light of the delicate accommodation of First Amendment values discussed in Part II above. In particular, the extent to which the FCC doctrines, such as the Fairness Doctrine, designed to deter certain failures to produce diversity may be considered in a comparative hearing is not settled in my mind.
1 do not wish to leave the impression from this discussion that I approve the present conduct of comparative hearings either on proposed programming issues or on other issues. Indeed, my view is that the comparative hearing process in the FCC is at present seriously flawed due to a lack of standards. Furthermore, I don’t mean to argue that proposed programming should always be considered in comparative hearings. Rather, I am only stating that if we find sufficient failure in the traditional schema of the First Amendment to justify direct regulation designed to achieve greater diversity, then the proper arena for that regulation is the comparative hearing, as flawed and arbitrary as it is at present. In a perfect world we would have no cause to ever inquire into programming.
In the preceding paragraphs I have attempted a reconciliation of the existing system of telecommunication regulation and the developing schema of the First Amendment. I don’t want to leave the impression that this attempt leaves me entirely satisfied; far from that, the more I study the relation of these two areas the more uncertain and troubled I become. Particularly intractible to my mind is the relation of modern notions of “chilling effect” or “breathing space” for First Amendment freedoms and a comprehensive system of governmental licensing of speakers. Indeed, a plausible argument can be made that the entire Federal Communications Act could not survive the test of Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) 69 Not *221only has that argument never received even the beginnings of legal respectability, but it has not even led courts to strictly construe the authority delegated to the Commission or to otherwise narrow and define the limits of its power. Quite the contrary, with the exception of our opinion in Banzhaf courts have affirmed Commission authority in this delicate area in the most sweeping terms, as if it were no more limited than an ordinary exercise of the police power. As First Amendment jurisprudence developed rapidly in the last two decades', venerable FCC policies remained in a stagnant backwash, a permanent “derelict in the stream of the law.” 70
I am led to the conclusion that the notion of “chilling effect” must be substantially revised if First Amendment jurisprudence is to permit direct action to increase diversity of ideas. Instead of being an absolute bar to governmental licensing of speakers, perhaps the “chilling effect” doctrine should be the basis for intensive judicial oversight of FCC enforcement of policies designed to increase diversity.71 The possibility that licensees will be “chilled” by the very existence of a system of licensing might be put to one side hopefully in service of important efforts to directly achieve diversity.72 This conclusion is disturbing and even non-symetrical in terms of First Amendment doctrine as a whole, but I am not yet aware of any other possible reconciliation.
The life of the law in this area is thus surely not logic. I would be less concerned if I were sure it was experience; however, surveying the field after twenty-five years of work, I have serious doubts that the experience of non-regulation or the history of regulation really were the cause of all this startling, even radical, departure from our traditions. Mostly, we are today reasoning backward, developing post hoc rationalizations which both reaffirm, and hopefully limit, the intrusion on First Amendment values. My review of this area raises some very fundamental questions about our true commitment to the system of freedom of expression. The fragility of even such basic traditions as free speech is always most evident when we are asked to “extend” it to a heretofore unknown situation which is actually indistinguishable from the present context of the tradition. For example, it took us until 1967 to discover that wiretapping was a “search” 73 and even today we are told that government compelled record-keeping of transactions between banks and the citizenry is not a “search.” 74 We grip tightly to the empty form of an ideal while the substance has long ago escaped in disguise. I have more times than I wish to remember protested against this kind of mythology in the area of criminal procedure.75
Having said all this does not mean I am ready to sweep away forty years of telecommunication regulation. The egg is too thoroughly scrambled for judicial unscrambling. Ultimate redress must rest with the Congress, the institution in our society which may legitimately transform telecommunications regulation to the degree necessary to truly accommodate First Amendment values. Congress would have several options — from altering the system of licenses from private *222licensees to public common carriers to complete and retroactive enforcement of the diversification guides. We must rely on Congress’ willingness to do more than entrench the economic interests of the existing licensees. Meanwhile, we have no recourse but a ease by case attempt at reconciliation, no matter how unbalanced and illogical each particular attempt may seem. This is a process which makes skeptics of us all.
IV.
I turn now to the present case where petitioners seek to prevent Zenith from assigning its license to GCC. Because of § 310(b), a very unwise statute in my view, a license assignment is a unique proceeding since the Commission is prohibited by that section from considering other applicants for the frequency under review. It thus would seem that this license assignment is a non-comparative proceeding and, pursuant to the views expressed in Part III above, the petition to deny should be denied without a hearing since the FCC has no authorization to consider program content in a non-comparative hearing. However, our decision in Citizens Committee of Atlanta suggests, and I follow it in this case, that a license assignment is comparative in that the assignee and the assignor are compared.76 The predicate for this holding is a finding that if the license assignment is denied, Zenith will continue to operate the station and will not be permitted to cease broadcasting. The record on that point is simply non-existent. I, therefore, would require the FCC, prior to consideration of the diversity issue, to determine whether Zenith may realistically be viewed as a comparative applicant. Such a determination is, I think, relatively co-terminus with the factual issue set out in Part II, C, 1 of the Court’s opinion. If Zenith may be considered a comparative applicant, I would expect the FCC to apply its established precedent77 granting a preference to an applicant that proposes programming which meets an unfulfilled need in the community. Of course, the scope of that precedent is far from obvious and, indeed, its permissable scope in relation to First Amendment concerns is not settled. I would leave the initial determination of these questions to the FCC and reserve final judgment until it has spoken. In passing, I should note one potentially anomalous consequence of denying the application for assignment is that Zenith might itself without assignment change its format. That change would most likely go unreviewed by the FCC. However, absent convincing evidence that this will occur (a question linked in no small part to the issue of whether Zenith can be considered a comparative applicant), I would assume that Zenith will abide by its representations to the FCC concerning programming made at its most recent renewal proceeding.
If Zenith is not to be considered a comparative applicant, I believe that the FCC has no authority to inquire into the diver*223sity issue. Its sole inquiry in a non-comparative proceeding, once having disposed of non-content issues such as financial, technical, character and diversification of ownership considerations, is to determine the licensee’s good faith in ascertaining the needs of the community and presenting accurate public affairs programming.78 I should note that this good faith obligation does not to my mind require the licensee to propose any particular “balanced” format or require him to present general rather than specialized entertainment programming.79 The Court in Part II, C, 2 holds that there is a substantial question of fact as to whether GCC did make a good faith effort to ascertain community needs. While I would be less certain about the proposition as an original matter, since the ease is to be remanded on the general diversity issue, I see no reason to restrict inquiry into this issue of good faith ascertainment of community needs.
On this basis I concur in the Court’s mandate.
. See Zenith Radio Corp., 40 F.C.C.2d 223, 230 (1973) (Additional Views of Chairman Burch, in which Comm’rs R. E. Lee, H. R. Lee, Reid, Wiley & Hook join); cf. id. 38 F.C.C.2d 838, 846 (1972).
. Citizens Comm. to Save WEFM v. FCC, 165 U.S.App.D.C. 185 at 191, 506 F.2d 246 at 252 (1973), (Bazelong, C. J.).
. I do not read the Court in this case as ruling on the weight to be given considerations of diversity or on the degree of increase or decrease in diversity which requires denial of a petition for assignment of a hearing. Most importantly, I do not read the Court as foreclosing inquiry into the proper proceeding for consideration of diversity, i. e. whether diversity should be considered in both comparative and non-comparative proceedings.
. Judge Robb joined only in Part II of jny opinion for the original panel which he sets forth in his dissent herein. But that Part must be read in connection with Parts III and IV of my panel opinion which enunciated my concern that regulation resigned to achieve diversity raised certain First Amendment issues and in which Judge Robb did not join.
I also join in the Court’s implicit holding that § 309 (e) may require a hearing on mixed questions of fact and law where the law is not settled and the facts might not otherwise require a hearing. Cf. Citizens TV Protest Comm. v. FCC, 121 U.S.App.D.C. 50, 348 F.2d 56 (1965). I particularly join in the intimation in note 35 of the Court’s opinion and would state even more strongly than the Court that the FCC procedural policy in this area needs thorough reconsideration.
. 47 U.S.C. § 402(b) (1970).
. Citizens TV Protest Comm. v. FCC, 121 U.S.App.D.C. 50, 348 F.2d 56 (1965); Clarksburg Publishing Co. v. FCC, 96 U.S.App.D.C. 211, 225 F.2d 511 (1955). See United States v. Midwest Video Corp., 406 U.S. 649, 665-670, 92 S.Ct. 1860, 32 L.Ed.2d 390 (1972); National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943); United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956); Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971); Mansfield Journal Co. v. FCC, 86 U.S.App.D.C. 102, 180 F.2d 28 (1950). See also Pinellas Broadcasting Co. v. FCC, 97 U.S.App.D.C. 236, 241, 230 F.2d 204, 209, cert. denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956) (Bazelon, J. dissenting); Scripps-Howard Radio v. FCC, 89 U.S.App.D.C. 13, 189 F.2d 677, cert. denied, 342 U.S. 830, 72 S.Ct. 55, 96 L.Ed. 628 (1951).
. See 47 C.F.R. §§ 73.131-.138; .231-.240; .35; .658; .636 (1974) ; FCC Dkt. #18110; Hale v. FCC, 138 U.S.App.D.C. 125, 425 F.2d 556 (1970); Frontier Broadcasting Co. 27 F.C.C.2d 486 (1971). See also United States v. Midwest Video Corp., 406 U.S. 649, 665-670, 92 S.Ct. 1860, 1869-1871, 32 L.Ed. 2d 390 (1972); Metropolitan Television Co. v. FCC, 110 U.S.App.D.C. 133, 289 F.2d 874 (1961); Carter Mountain Transmission Corp. v. FCC, 116 U.S.App.D.C. 93, 321 F.2d 359, cert. denied, 375 U.S. 951, 84 S.Ct. 442, 11 L.Ed.2d 312 (1963); Carroll Broadcasting Co. v. FCC, 103 U.S.App.D.C. 346, 258 F.2d 440 (1958); Simmons v. FCC, 83 U.S.App.D.C. 262, 169 F.2d 670, cert. denied, 335 U.S. 846, 69 S.Ct. 67, 93 L.Ed. 396 (1948); Chicago-land TV Co., 11 F.C.C.2d 119, 136-137 (1967) (Hearing Exam.) ; Note, Toward Community Ownership of Cable Television, 83 Tale L.J. 1708 (1974). The FCC also considers ownership diversification as a factor in comparative licensing proceedings. See Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394-396 (1965) ; cases cited note 6 supra; Note, Diversification and the Public Interest: Administrative Responsibility of the FCC, 66 Vale L.J. 365 (1957).
. Clarksburg Publishing Co. v. FCC, 96 U.S. App.D.C. 211, 218, 225 F.2d 511, 518 (1955), citing Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945) and Cowles Broadcasting Co., 10 P & F Radio Reg. 1289, 1314 (1954). See also TV 9, Inc. v. FCC, 161 U.S.App.D.C. 349, 495 F.2d 929, 935-938 (1973).
. There can be little doubt at this late date that artistic or entertainment programming is within the scope of the First Amendment. See Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974 ; Jacobellis v. Ohio, 378 U.S. 184, 191, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Brennan, J.); Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Chafee, Book Review, 62 Harv.L.Rev. 891, 896 (1947). See also United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948); Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586 (1946); S. Morison, Oxford History of the American People, 292, 472, 912-913 (1965).
. See Banzhaf v. FCC, 132 U.S.App.D.C. 14, 32 n. 76, 405 F.2d 1082, 1100 n. 76 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969). Furthermore, too much diversification of ownership may result in the production of licensees who do not have sufficient capital to create high quality entertainment or public affairs programming. See also Levin, Competition, Diversity and the Television Group Ownership Rules, 70 Colum. L.Rev. 791 (1970).
. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 2839, 41 L.Ed. 2d 730 (1974).
. United States v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y.1943), aff’d, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945). See Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 353-354, 473 F.2d 16, 64-65 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973); Business Executives’ Move for Vietnam Peace v. FCC, 146 U.S.App.D.C. 181, 193-197, 450 F.2d 642, 654-658 (1971), rev’d sub nom., Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973).
.While the “market place of ideas” justification for unrestricted speech is the most consistently applied, other justifications for unrestricted speech are also persuasive. As Professor Emerson has suggested, unrestricted speech is inextricably bound up in an individual’s search for self-fulfillment and truth. See T. Emerson, The System of Freedom of Expression 6-7 (1970), applied in part, Banzhaf v. FCC, 132 U.S.App.D.C. 14, 34, 405 F.2d 1082, 1102 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969); Business Executives’ Move for Vietnam Peace v. FCC, 146 U.S.App.D.C. 181, 194, 450 F.2d 642, 655 (1971), rev’d sub nom., Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973). Furthermore, the right of unrestricted speech seems inherent in elementary notions of physical freedom, such as freedom to travel, to use contraceptives, to have abortions, to worship the god of one’s choice, to learn a foreign language, to send one’s children to private schools, to associate freely with persons of one’s choice and to hold property and engage in economic activity. See Tribe, Forward: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv.L.Rev. 1, 33-50 (1973) ; Pound, A Survey of Social Interests, 57 Harv.L.Rev. 1, 33-35 (1943). Finally both of these two alternative justifications for unrestricted speech are buttressed by reference to the common law principle that no person should be punished unless he or she has performed an act. See Robinson v. California, 370 U.S. 660, 678-679, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (Harlan, .1. concurring) ; Ex parte Burford, 7 U.S. (3 Cranch,) 448, 2 L.Ed. 495 (1806). These notions of free speech as part of basic human dignity are not fully applicable to the operations of governmental licensees in the broadcast field. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).
. Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94, 145, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973) (Stewart, J. concurring).
. Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 356, 473 F.2d 16, 67 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973) (Bazelon, C. J. dissenting).
. Of course not all speech is protected. See id., 153 U.S.App.D.C. at 354 n. 7, 473 F.2d at 65 n. 7. Particularly significant for telecommunications, advertising is not considered to be protected speech. Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973).
. See Hannegan v. Esquire, Inc., 327 U.S. 146, 157-158, 66 S.Ct. 456, 90 L.Ed. 586 (1946). Cf. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (Brennan, J. dissenting).
. See House Comm, on Interstate and Foreign Commerce, Report on Network Broadcasting, I-I.R.Rep.No.1297, 85th Cong., 2d Sess. (1958). On FCC inconsistency and evasion in enforcing the diversification guides, see Pinellas Broadcasting Co. v. FCC, 97 U.S. *212App.D.C. 236, 241, 230 F.2d 204, 209, cert. denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956) (Bazelon, J. dissenting) H. Friendly, The Federal Administrative Agencies 66-67 (1962) ; Schwartz, Comparative Television and the Chancellor’s Foot, 47 Geo. L.J. 655, 673-678, 690-694 (1959) ; see also H. Geller, A Modest Proposal to Reform the Federal Communications Commission 3-12 (Rand Corp. 1974) (describing FCC policy on development of UHF and VHF bands).
.See sources cited note 40 infra. The concept of “licensee responsibility” has been employed recently in a manner strongly suggestive of censorship. See Yale Broadcasting Co. v. FCC, 155 U.S.App.D.C. 390, 399, 478 F.2d 594, 603, cert. denied, 414 U.S. 914, 94 S.Ct. 211, 38 L.Ed.2d 152 (1973) (Statement of Bazelon, C. J.). For a definitive discussion of the problem of network domination of programming, see Federal Communications Comm’n, Network Program Procurement, H.R.Rep.No.281, 88th Cong., 1st Sess. (1963) ; Barrow, The Attainment of Balanced Program Service in Television, 52 Va. L.Rev. 633, 660-663 (1966).
. See generally Crowder v. FCC, 130 U.S. App.D.C. 198, 201-202, 399 F.2d 569, 572-573, cert. denied, 393 U.S. 962, 89 S.Ct. 400, 21 L.Ed.2d 375 (1968), aff’g, Harriman Broadcasting Co., 9 F.C.C.2d 731 (1967); 47 C.F.R. § 1.597 (1973); Moline Television Corp., 31 F.C.C.2d 263, 297-298 (1971) (Johnson, Comm’r, dissenting).
. Cf. Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586 (1946); American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90 (1902); cases cited note 8 supra.
. See also Business Executives’ Move for Vietnam Peace v. FCC, 146 U.S.App.D.C. 181, 450 F.2d 642 (1971), rev’d sub nom., Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973).
. National Broadcasting Co. v. United States, 319 U.S. 190, 217, 63 S.Ct. 997, 1010, 87 L.Ed. 1344 (1943).
. Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94, 105-114, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973).
. 47 U.S.C. § 326 (1970).
. Compare the Court’s formulation with tlie language of Red Lion Broadcasting Co. v. ECC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1807, 23 L.Ed.2d 371 (1969) : “It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.”
. I have recently noted that technological changes, particularly the emerging cable television technology, may eliminate these limits on the FCC’s ability to increase the number of licensees serving a particular market. Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 364-365, 473 F.2d 16, 75-76 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973) (Bazelon, C. J. dissenting). See also Robinson, The FCC and the First Amendment, 52 Minn.L. Rev. 67, 157-161 (1967) ; note 29 infra.
. The FCC is required by law to allocate scarce frequencies by a licensing process. 47 U.S.C. §§ 301-310 (1970). The financial requirements have been established by the Commission in the exercise of its discretion pursuant to the licensing power. See Ultravision Broadcasting Co., 1 F.C.C.2d 544 (1965); Chicagoland TV Co., 11 F.C.C.2d 96 (Rev. Bd.1967).
.National Broadcasting Co. v. United States, 319 U.S. 190, 210-213, 63 S.Ct. 997, 87 L.Ed. 1344 (1946). Of course, Congress could have chosen a different scheme to rectify this anarchy which would have permitted the FCC to increase the number of speakers ad infinitum. If Congress had chosen to make the licensee a common carrier, then there would be no scarcity since the only scarcity in broadcasting is in the freguenoies; there is almost no scarcity of broadcast time. Thus, by permitting access to the broadcasting facilities by anyone who can pay the charge, Congress could have avoided most if not all of the treacherous problems courts must face in reconciling the First Amendment and the present system of telecommunication regulation. I note with some interest that the Commission has under consideration proposals to make cable television at least partially into a common carrier. See 47 C.F.R. § 76.251 (1973).
. gee notes 18-20 supra.
. Banzhaf v. FCC, 132 U.S.App.D.C. 14, 32-33, 405 F.2d 1082, 1100-1101 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969), cited in Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94, 128, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973).
. See Brandywine-Main Dine Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 368 n. 65, 473 F.2d 16, 79 n. 65 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973); Banzhaf v. FCC, 132 U.S.App.D.C. 14, 33 n. 77, 405 F.2d 1082, 1101 n. 77 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969); Bed Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386-387 & n. 15, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), citing Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949).
The particular nature of telecommunications largely presents a conflict between privacy interests and free speech. See Poliak v. Public Utilities Comm’n, 89 U.S.App.D.C. 94, 191 F.2d 450 (1951), rev’d, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952). However, the conflict betwen privacy and the First Amendment is not limited to telecommunications. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 3008-3010, 41 L.Ed.2d 789 (1974); Hunter v. Washington Post, Civil No. 8865-73 (D.C.Super. July 12, 1974) (newspaper cannot print the name of rape victims) ; Note, Privacy in the First Amendment, 82 Yale L.J. 1462 (1973).
I do not believe that the pervasive, intrusive nature of telecommunications offers the FGC carte blanche for regulation. See Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. at 368, 473 F.2d at 79 (Bazelon, C. J. dissenting); Robinson, supra note 27 at 154-56. Rather each regulatory action must be measured against the nature of telecommunications to ensure that the action in the particular case is justified by that nature.
. See Columbia Broadcasting Systems, Inc. v. Democratic National Comm., 412 U.S. 94, 148, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973) (Douglas J. concurring).
. Another area in which the specter of failures in the traditional First Amendment structure has caused some movement away from the strict rule of a multitude of tongues unrestricted in speech to some direct actions designed to promote diversity of ideas is that of money and the electoral process. See generally Local 562, Pipefitters v. United States, 407 U.S. 385, 92 S.Ct. 2247, 33 L.Ed. 2d 11 (1972); United States v. International Union, Auto Workers, 352 U.S. 567, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957). Cf. United States Civil Service Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). Perhaps, Red Lion’s narrow holding can be explained as an extension of these cases. Compare note 56 infra. I have recently struggled with the difficult constitutional problems in this area, see American Civil Liberties Union v. Jennings, 366 F.Supp. 1051 (D.D.C.1973), prob. juris. *215noted sub nom., Staats v. American Civil Liberties Union, 417 U.S. 944, 94 S.Ct. 3066, 41 L.Ed.2d 664 (1974), and have noted the recent guilty pleas entered by individuals and corporations for conduct which on its face at least seems within First Amendment protection. In this area too courts are forced to reconcile traditional notions of the First Amendment with modern notions of equal access. I am reminded of John Randolph’s famous assertion: “I love liberty: I despise equality.” That statement surely is no longer representative of our constitutional order.
. See Primer on Ascertainment of Community Problems by Broadcast Applicants, 36 Fed. Reg. 4092 (F.C.C.1971); Suburban Broadcasters, 30 F.C.C. 1021 (1961), aff’d sub nom., Henry v. FCC, 112 U.S.App.D.C. 247, 302 F.2d 191, cert. denied, 371 U.S. 821, 83 S.Ct. 37, 9 L.Ed.2d 60 (1962) (Bazelon, C. J.). This requirement can be administered in a manner which suggests actual programming control, see Lee Roy McCourry, 2 P & F Radio Reg.2d 895 (1964), discussed Robinson, supra note 27, at 115, 123-124, but on its face, the requirement seeks only to force the licensee to base his or her decisions on a complete and accurate record.
.The meaning of this term is a subject of intense debate, compare Neckritz v. FCC, 163 U.S.App.D.C. 409, 502 F.2d 411 (1974) with Friends of the Earth v. FCC, 146 U.S.App.D.C. 88, 449 F.2d 1164 (1971), but it apparently does not include entertainment programming. See Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 40 F.C.C. 598, 600-604 (1964). Of course, some entertainment programming may specifically raise political issues, which are “controversial”, but normally the choice between classical’ music and rock music would not be a “controversial issue.” Cf. George D. Corey, 25 P & F Radio Reg.2d 437 (1972); Children Before Dogs, 25 P & F Radio Reg.2d 411 (1972). I have serious doubts about the validity and rationality of current definitions of “controversiality” and do not in this opinion mean to approve those definitions.
. See Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1254-1255 (1949); Columbia Broadcasting System, Inc., 20 F.C.C.2d 143 (1969); Columbia Broadcasting System, Inc., 30 F.C.C.2d 150 (1971). See generally Note, The First Amendment and Regulation of Television News, 72 Colum.L.Rev. 746 (1972).
. See Trinity Methodist Church, South v. Federal Radio Comm’n, 61 U.S.App.D.C. 311, 62 F.2d 850, cert. denied, 288 U.S. 599, 53 S.Ct. 317, 77 L.Ed. 975 (1932). Cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). See also Palmetto Broadcasting Co., 23 P & F Radio Reg. 483 (1961), aff’d sub nom. on other grounds, Robinson v. FCC, 118 U.S.App.D.C. 144, 334 F.2d 534, cert. denied, 379 U.S. 843, 85 S.Ct. 84, 13 L.Ed.2d 49 (1964) (reasonable care in ascertaining the nature of the *216programming actually transmitted by agents of the liceñsee).
. See generally Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 473 F.2d 16 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973); Applicability of the Fairness Doctrine in the Handling of Controverial Issues of Public Importance, 40 F.C.C. 598 (1964).
. See KFKB Broadcasting Ass’n v. Federal Radio Comm’n, 60 U.S.App.D.C. 79, 47 F.2d 670 (1931). Cf. Banzhaf v. FCC, 132 U.S. App.D.C. 14, 405 F.2d 1082 (1968), cert denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969); Gordon Broadcasting Co., 24 P & F Radio Reg. 315 (1962); Commercial Practises of Broadcast Licensees, 1 P & F Radio Reg.2d 1606 (1964) (FCC actions to prevent over-commercialization of broadcast frequencies). This sort of regulation would seemingly be justified by Pittsburg Press Co. v. Human Relations Comm’n, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) and cases cited therein. See also Objectionable Loudness of Commercials, 5 P & F Radio Reg.2d 1621 (1965) ; sources cited note 32 supra.
Another aspect of this duty is the licensee’s duty not to delegate its control over programming to the networks, a duty reflected in the Prime Time Access Rule, 47 C.F.R. § 73.658 (1974), the prohibition on chain broadcasting, National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed.2d 1344 (1943), the prohibition on network representation of affiliated stations in the sale of non-network advertising time, Metropolitan Television v. FCC, 110 U.S.App.D.C. 133, 289 F.2d 874 (1961) and the requirement of local origination of CATV programming, United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390 (1972). See Simmons v. FCC, 83 U.S.App.D.C. 262, 169 F.2d 670, cert. denied, 335 U.S. 846, 69 S.Ct. 67, 93 L.Ed. 396 (1948); Churchill Tabernacle v. FCC, 81 U.S.App.D.C. 411, 160 F.2d 244 (1947); Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1248 (1949).
. Cf. Associated Press v. NLRB, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953 (1937); Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 80 L.Ed. 660 (1936); Buckley v. American Fed’n of Television & Radio Artists, 496 F.2d 305 (2d Cir. 1974).
. See Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249-50 (1949). Of course, the licensee’s judgment as to whether a particular program is controversial and thus whether he must present more than one “side” is reviewable by the FCC only under a standard of reasonableness. See National Broadcasting Co. v. FCC, No. 73-2256 (D.C.Cir. Sept. 27, 1974). However, the problem of ascertaining what are the various “sides” to a particular issue and the problem of being forced to air that “side” remain an inhibiting element.
. See H. Geller, The Fairness Doctrine in Broadcasting 19-20 (Rand Corp. 1973), discussing Letter to the Honorable Oren Harris, 40 F.C.C. 582 (1963); Tri-State Broadcasting Co., 40 F.C.C. 508 (1962). For recent examples, see National Broadcasting Co., 16 F.C.C.2d 956 (1969); Scalia, Don’t Go Near the Water, 25 Fed.Com.B.J. 111 (1972).
. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 373-375, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). The “equal time” requirement is specifically mandated by 47 U.S.C. § 315 (1970). ,
. See Citizens Communication Center v. FCC, 145 U.S.App.D.C. 32, 44, 447 F.2d 1201, 1213 (1971), clarified, 149 U.S.App.D.C. 419, 463 F.2d 822 (1972); Policy Statement Concerning Comparative Hearings Involving Regular Renewal Applicants, 22 F.C.C.2d 424 (1970); Goldberg, A Proposal to Deregulate Broadcast Programming, 42 Geo.Wash.L.Rev. 73, 83-84 (1973). See also Network Programming Inquiry, 25 Fed.Reg. 7291 (F.C.C. 1960), incorporated, Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 397 (1965); Note, Regulation of Program Content by the FCC, 77 Harv.L.Rev. 701, 704-06 (1964).
. 141 U.S.App.D.C. 109, 436 F.2d 263 (1970).
. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974).
. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).
. See 47 U.S.C. § 309(d)(1) (1970); 47 C.F.R. § 1.580(1) (1973).
. See Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 40 F.C.C. 598, 600 (1964).
. See 47 C.F.R. § 1.591(a)(1) (1973); Citizens Communication Center v. FCC, 145 U.S.App.D.C. 32, 447 F.2d 1201 (1971); Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393 (1965).
. See note 27 supra.
. The duties discussed in notes 35-41 would, however, be applicable.
. Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94. 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973).
. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974).
. See Brandywine-Main Dine Radio, Inc. v. PCC, 153 U.S.App.D.C. 305, 359-560, 473 F.2d 16, 70-71 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973). This limitation may be justified by the fact that a personal attack may involve quasi-libelous speech and thus a right to reply can be seen as a permissable remedy for such unprotected speech. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 2840, 41 L.Ed.2d 730 (1974) (Brennan, J., concurring). The editorial reply rules might be justified by a desire to protect the electoral processes from control by dominant groups. See note 34 supra; 47 U.S.C. § 315 (1970). Both may be justified as narrowly defined instances of intervention to protect compelling governmental interests. Cf. Banzhaf v. FCC, 132 U.S.App.D.C. 14, 28-31, 405 F.2d 1082, 1096-99 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969). Compare Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969).
. I digress to note that there may be no justification for the assumption of scarcity inherent in the concept of comparative licensing. I have suggested before and continue to suggest that the FCC, Congress and the courts reconsider this assumption. See Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 364-365, 473 F.2d 16, 75-76 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973). Since there has been no reconsideration of the assumption of scarcity, I am forced for the time being to rule on the basis of that assumption. But the least we should require is that scarcity be proven in the particular case before erecting .duties around that concept. See id.
I note that the FCC in its recent statement on the Fairness Doctrine and Public Interest Standards, 39 Fed.Reg. 26372, 26374 (1974), responds to my suggestion in Brandywine to reconsider the assumption of scarcity. However, that reconsideration consists of no more than a recital of the information presented in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 396-400, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). I would require a much broader inquiry than this before resting comfortably with the assumption of scarcity.
. There is a distinction between normal comparative proceedings among various applicants in the same location for the same frequency and a § 307 (b) hearing on mutually inconsistent applications for licenses in different cities on different frequencies. However, in both circumstances choice of programming is relevant.
. W. S. Butterfield Theatres, Inc. v. FCC, 99 U.S.App.D.C. 71, 77, 237 F.2d 552, 558 (1956); Johnston Broadcasting Co. v. FCC, 85 U.S.App.D.C. 40, 48, 175 F.2d 351, 359 (1949); Bay State Beacon, Inc. v. FCC, 84 U.S.App.D.C. 216, 217, 171 F.2d 826, 827 (1948); Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 397 (1965).
. See cases cited Jorgensen, Schwartz & Woods, Programming Diversity in Proposals for New Broadcast Licenses, 32 Geo.Wash.L. Rev. 769, 796-98 nn. Ill, 113-14 (1964); Irion, FCC Criteria for Evaluating Competing Applicants, 43 Minn.L.Rev. 479, 489-96 (1959) ; Note, supra note 45 at 702. See also Buckley-Jaeger Broadcasting Corp. v. FCC, 130 U.S.App.D.C. 90, 397 F.2d 651 (1968).
. See Moline Television Corp., 31 F.C.C.2d 263, 272-73 (1971), discussing Policy Statement on Comparative Broadcast Hearings, F.C.C.2d 393, 397 (1965). The statements in Moline to the effect that the FCC will no longer consider proposed programming specifically exempt consideration of programming proposals designed to meet unfulfilled community needs. 31 F.C.C.2d at 272; see note 63 infra.
. See, e. g., Central Coast Television, 1 P & F Radio Reg.2d 237 (1963); Jefferson Standard Broadcasting Co., 24 P & F Radio Reg., 319 (1963); Rockland Broadcasting Co., 23 P & F Radio Reg. 789 (1962); Plainview Radio, 18 P & F Radio Reg. 671 (1959).
. See Rollins Broadcasting, Inc., 20 P & F Radio Reg. 976 (1960), mod. 20 P & F Radio Reg. 978 (1961); Herbert Muschel, 33 F.C.C. 48 (1961); La Fiesta Broadcasting Co., 6 F.C.C.2d 65 (Rev.Bd.1966); Great Lakes Television, Inc., 25 F.C.C. 470 (1958); NTA Television Broadcasting Corp., 22 P & F Radio Reg. 273, 294 n. 20 (1961); Broad-man Broadcasting Co., 10 F.C.C.2d 422 (Rev. Bd. 1967) ; Mel-Lin, Inc., 17 F.C.C.2d 705, 712 (Rev.Bd.1969) ; Progress Broadcasting Corp., 24 P & F Radio Reg. 229 (Rev.Bd. 1962) ; Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 397 n. 9 (1965).
. Compare Network Programming Inquiry, 25 Fed.Reg. 7291, 7295 (F.C.C.1960) with Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 397 (1965). While there is general commentary in the literature to the effect that the FCC does not in its review of programming perceptibly distintinguish between comparative and non-comparative proceedings, I was unable to find one non-comparative case in which the FCC gave significant consideration to a proposal for specialized programming. The cases cited note 63 sttpra involving comparative hearings, on the other hand, to demonstrate significant consideration of specialized programming proposals.
. Johnston Broadcasting Co. v. FCC, 85 U.S.App.D.C. 40, 48, 175 F.2d 351, 359 (1949).
. Cf. cases cited note 59 supra. See also Buckley-Jaeger Broadcasting Corp. v. FCC, 130 U.S.App.D.C. 90, 397 F.2d 651 (1968), aff’g 2 F.C.C.2d 833 (1966).
. Cf. FTC v. Proctor & Gamble Co., 386 U.S. 568, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967). Compare Citizens Communication Center v. FCC, 145 U.S.App.D.C. 32, 447 F.2d 1201 (1971).
. Cf. Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 271, 285, 53 S.Ct. 627, 77 L.Ed. 1166 (1933); p. 13 sufra.
. “It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official— is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.”
394 U.S. at 151, 89 S.Ct. at 939, citing Staub v. Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958). See NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); American Civil Liberties Union v. Jennings, 366 F.Supp. 1041 (D.D.C.1973), prob. juris, noted sub nom., Staats v. American Civil Liberties Union, 417 U.S. 944, 94 S.Ct. 3066, 41 L.Ed.2d 664 (1974); Note, Chilling Effect in Constitutional Law, 69 Colum.L.Rev. 808 (1969). There is some evidence that broadcasters may want this “chilling effect” in order to reaffirm their own predelictions for self-censorship. This is not an argument for permitting the government’s “chilling effect"; indeed, this argument is another persuasive reason for eliminating the government imposed “chill.” See generally Yale Broadcasting Co. v. FCC, 155 U.S.App.D.C. 390, 399, 478 F.2d 594, 603, cert. denied, 414 U.S. 914, 94 S.Ct. 211, 38 L.Ed.2d 152 (1973) (Statement of Bazelon, C. J.).
The most potent source of a “chill” lies in FCC actions which might if properly executed be consistent with the First Amendment but which are in fact executed in a manner strongly suggestive of censorship. See id.; note 35 sufra. Another source of “chill” is the threat of a hearing on a particular action of the licensee. This “chill” is less visible in comparative proceedings since normally a *221hearing must be held in all such proceedings. See Citizens Communication Center v. FCC, 145 U.S.App.D.C. 32, 447 F.2d 1201 (1971); Robinson, supra, note 27, at 117.
. North Dakota State Bd. of Pharmacy v. Snyder’s Drug Stores, 414 U.S. 156, 167, 94 S.Ct. 407, 414, 38 L.Ed.2d 379 (1973).
. I saw the need for such an over-sight in Yale Broadcasting Co. v. FCC, 155 U.S.App.D.C. 390, 399, 478 F.2d 594, 603, cert. denied, 414 U.S. 914, 94 S.Ct. 211, 38 L.Ed.2d 152 (1973) (Statement of Bazelon, C. J.). . Compare notes 38, 40 supra.
. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 393, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).
. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
. See California Bankers’ Ass’n v. Schultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974).
. See, e. g., Bazelon, The Defective Assistance of Counsel, 42 U.Cinc.L.Rev. 1 (1973).
. See Joseph v. FCC, 131 U.S.App.D.C. 207, 404 F.2d 207 (1968); Witchita-Hutchinson Co., 19 F.C.C.2d 433 (1969), explained Alianza Federal de Pueblos Libres’, 31 F.C.C. 2d 557, 559 (1971); Time-Life Broadcast, Inc., 33 F.C.C.2d 1099, 1114-25 (1972) (in context of “Top 50” policy). Such a view of the Commission’s responsibilities in license assignment proceedings is consistent with the language and intent of 47 U.S.C. § 310(b) (1970). That section requires the FCC to determine whether the assignment is in the public interest, thus by implication authorizing a comparison between existing service and proposed service. The proviso which prevents the FCC from considering other applicants refers only to other proposed assignees and not to the assignor. If a license assignment is considered a comparative proceeding, it would not necessarily follow that a hearing need be held in every case under the Ashbaeker doctrine. See generally Citizens Communication Center v. FCC, 145 U.S.App.D.C. 32, 447 F.2d 1201 (1971). Since the assignor, who is to be compared in the assignment proceeding, initiates that proceeding and since by the nature of the proceeding the assignor would have all relevant procedural rights in a potential comparison of it and the assignee, the considerations of fairness which underlie the Ashbaoker doctrine would seemingly not be applicable.
. See note 63 supra.
. See pp. 16-18 supra.
. See Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 352, 473 F.2d 16, 63 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973) (Bazelon, C. J. dissenting). I take this opportunity to note that one of the chief vices, in my view, of the FCC decision in Brandywine was its failure to consider whether the Philadelphia area, served by sixty-odd stations, was diversified enough to permit sj)eeialized opinion programming, a type of programming the FCC apparently does not permit. It is not yet apparent to me why the FCC should permit specialized entertainment programming, and forbid specialized opinion programming. See also note 36 supra; Note, supra note 45, at 706. In this connection I note with much interest Senator Ervin’s proposal to restrict application of the Fairness Doctrine to broadcast areas receiving four or fewer broadcast signals. See 119 Cong.Rec. S20358-62 (Nov. 14, 1973).