(concurring).
I agree with the holding of the foregoing opinion that the Commission’s refusal to renew the license of the Kings-tree station should be affirmed because it found under issue No. 1 that Robinson made misrepresentations and false statements, but I think the opinion does not go far enough.
The Kingstree radio station was established in 1949 with the appellant and Marion L. New as equal partners. During the succeeding seven years, New received complaints about Charlie Walker’s programs which he said he passed on to Robinson. Finally, in 1956 New discharged Walker because of his broadcasts, but Robinson promptly reinstated him. Because of this, New severed his connection with the station. This is convincing evidence, not mentioned in the majority opinion, that Robinson deliberately falsified when he said he knew nothing of the contents of Walker’s programs, and furnishes strong additional support for the Commission’s conclusion under issue No. 1.
Samples of his broadcasts are in the record. They constitute, I think, plain violations of the statute which denounces as criminal the uttering of obscene, indecent or profane language by means of *537radio communication.1 (I understand that in December, 1963, a federal district court found Charlie Walker guilty of violating this statute in his broadcasts ■over Robinson’s radio station.) It is almost incredible that a licensee would permit such vulgar and indecent programs to emanate from his station, but the fact that Robinson knowingly did so is, I think, amply demonstrated in the record. Whether or not this fact justifies charging Robinson personally with violating § 1464, it demonstrates at the very least the soundness of the Commission’s conclusion under issue No. 2 that he did not exercise adequate control or supervision of programming material broadcast over his station.
Robinson’s guilt under issue No. 3, as found by the Commission, seems to me to be apparent from the record, and it goes without saying that the Commission was correct in finding, under issue No. 4, that the station’s Charlie Walker programs did not meet the needs of the areas and populations served by the station. No area or population needs a radio program which violates the criminal statute to which I have referred.
These fully justified conclusions of the Commission under issues Nos. 2, 3 and 4 should have been examined and upheld by the majority, and assigned as additional reasons for affirming the Commission’s action in refusing to renew Robinson’s license. In my view, the industry and the public are entitled to know the full story, so it will be generally understood that such conduct will not be tolerated.
Perhaps the majority refrained from discussing the other issues because of a desire to avoid approving any Commission action which might be called program censorship. I do not think that denying renewal of a license because of the station’s broadcast of obscene, indecent or profane language — a serious criminal offense — can properly be called program censorship.2 But, if it can be so denominated, then I think censorship to that extent is not only permissible but required in the public interest. Freedom of speech does not legalize using the public airways to peddle filth.
On Petition for Rehearing En Banc
Before Bazelon, Chief Judge, and Wilbur K. Miller, Fahy, Washington, Danaher, Bastian, Burger, Wright and McGowan, Circuit Judges, in Chambers.
ORDER
. Section 1464 of Title 18 is as follows: “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both. June 25, 1948, c. 645, 62 Stat. 769.”
. In KFKB Broadcasting Ass’n v. Federal Radio Commission, 60 App.D.C. 79, 47 F.2d 670 (1931), we said:
“Appellant contends that the attitude of tíre commission amounts to a censorship of the station contrary to the provisions of section 29 of tbe Radio Act of 1927 (47 USCA § 109). This contention is without merit. There has been no attempt on the part of the commission to subject any part of appellant’s broadcasting matter to scrutiny prior to its release. In considering the question whether the public interest, convenience, or necessity will be served by a renewal of appellant’s license, the commission has merely exercised its undoubted right to take note of appellant’s past conduct, which is not censorship.”