(dissenting):
As a member of the original panel in this case I concurred in the views cogently expressed by Chief Judge Bazelon in Part II of his opinion for the panel. I adhere to those views. Since Chief Judge Bazelon’s opinion has been vacated I here reproduce Part II, after renumbering the footnotes.
In recent years this Court and the FCC have begun to develop principles governing government control of format changes.1 This Court has held that the public has an interest in the diversity of entertainment formats.2 Consequently the Commission has had to consider format changes in its statutory determination that a proposed assignment of a license comports with “the public interest, convenience, and necessity.”3 Factual disputes surrounding the format change are material and if substantial become subject to the statutory requirement that a hearing be held.4
In this case appellants contend that substantial factual disputes exist on two issues relating to the proposed format change — the diversity of available formats and Zenith’s alleged financial losses.
As to diversity, appellants maintain that a substantial issue of fact exists as to whether the Chicago public demands and needs the continuation of classical music on WEFM as opposed to “yet another contemporary music station.” 5 Appellants point to the numerous letters and petitions of protest which greeted the news that WEFM was about to abandon its classical format. They note that Chicago has nu*224merous rock stations already, while the demise of WEFM will leave only one classical music station with the power to reach the entire Chicago area.
Our previous opinions and the Commission’s actions indicate that the majority of format changes are left to the give and take of the market environment and the 'business judgment of the licensee.6 It is only when the format to be discontinued is apparently unique to the area served that a hearing on the public interest must be held.7 In such cases the public interest in diversity may outweigh the dangers of government intrusion into the content of programming.
In this case it is undisputed that the entire area served by WEFM is served by another classical music station, WFMT-FM.8 Thus we are unable to find a substantial issue of fact requiring a hearing on the diversity point.9
Appellants also contend that a substantial issue of fact exists concerning the losses Zenith alleges it sustained during its operation of WEFM. Even assuming that such an issue would require a hearing in the absence of a substantial diversity issue, we do not find that appellants have raised a substantial issue of fact here. The Commission had sufficient evidence to support its finding that WEFM had incurred substantial losses in the period after 1965, when the station was operated on a commercial basis and not as a research and development adjunct to the Zenith corporation.10
. See Citizens Committee to Preserve the Voice of the Arts in Atlanta v. FCC, 141 U.S.App.D.C. 109, 436 F.2d 263 (1970); Hartford Communications Committee v. FCC, 151 U.S.App.D.C. 354, 467 F.2d 408 (1972); Lakewood Broadcasting Service, Inc. v. FCC, 156 U.S.App.D.C. 9, 478 F.2d 919 (1973); Citizens Committee to Keep Progressive Rock v. FCC, 156 U.S.App.D.C. 16, 478 F.2d 926 (1973).
. Citizens Committee to Keep Progressive Rock, 478 F.2d at 929.
. Lakewood Broadcasting Service, Inc., 478 F.2d at 922.
. Id.
. Appellants’ brief, at 38.
. Citizens Committee to Keep Progressive Book, 478 F.2d at 929.
. Id. at 929.
. A third classical music station, WNIB-FM, currently serves a smaller part of the Chicago area. GCG has agreed that if their license application is approved, they will relinquish the call letters WEFM to WNIB and give WNIB the WEFM classical music library as well as technical assistance designed to enable WNIB to increase its power.
. The long history of WEFM’s service does not diminish the impact of WFMT’s similar programming. The length of time that a format has been on the air is usually relevant only when that format is unique. See Citizens Committee to Keep Progressive Book, at 933 note 22:
Naturally the length of time that a specific format has been on the air is a factor to be considered in the ultimate public interest determination, for it can have a direct bearing on the degree of attachment which the public has to the unique format. (Emphasis added).
This approach to the diversity issue cannot be applied in a mechanistic fashion. Whether a format to be discontinued is unique can be a subtle question requiring that more than mere labels be examined. The fact, for example, that two stations are labelled “classical” does not automatically mean that they provide substantially similar programming. One of the stations might never play music composed in this century, while the other devotes considerable amounts of time to such music. In this case, however, it is apparent that WEFM and WFMT have substantially similar programming, both covering a broad range of classical music. Cf. Citizens Committee to Keep Progressive Book, at 932, where this Court noted that “Top 40” stations cannot automatically be assumed to provide substantial amounts of “progressive rock” music.
.Zenith was not, for example, able to obtain enough advertising to fill the two and one-half minutes per hour it allotted for ads. Joint Appendix at 73.
Appellants’ contention concerning the adequacy of the notice of the application for voluntary transfer is also without merit. The Commission properly found that Zenith complied with the notice requirements of the Commission’s rules. The notice given was not constitutionally defective.
Similarly, appellants’ contention that the Commission’s e® parte rules had an unconstitutional impact on the public discussion of the format change is without merit in the setting of this case.