In pointing out that there is no such danger I referred to the fact that no one needs any license to perform Mozart, Bach or any other classical composer whose works are in the public domain, and stated that the works of modern serious composers are freely (if not gratuitously) available under ASCAP, BMI or SESAC licenses to precisely the same extent as are the works of popular composers. They are all included in a single license granting access to an entire repertory.

A question was also raised about the economic health of stations whose program formats emphasize serious music. I pointed out that there is an association of such stations-the Concert Music Broadcasters Association-and that they seem to be in fairly good economic health. I referred to the battle to return WNCN to a classical music format.

This morning's Wall Street Journal contains a story about WNCN, a copy of which is enclosed. One expert and filer of a competing application for WNCN states (in the fifth paragraph from the end of the article) that ... WNCN can be operated profitably, as classical stations in other cities are."

The one way to cut into the profit of these stations-and some of them are less healthy economically than others-would be to permit the growing number of public radio stations to perform serious music without paying any copyright fees. That's the surest way to do in today's serious music stations.

It is interesting to note that GAF's motive for buying WNCN, for a hefty price of $2.2 million, is because the company is "looking for an opportunity to do good and to do it at a profit." This is the same opportunity, we say, that underwriters of programs on public television seek—although their profit may be less direct.

I appreciate the courtesy extended by you and your Committee.
Respectfully,

Enclosure.

BERNARD KORMAN,

General Counsel.

[From the Wall Street Journal, July 11, 1975]

BACK TO BACH-CLASSICAL MUSIC LIKELY TO RETURN TO FM STATION IN NEW YORK, THANKS TO LOYAL LISTENERS' FIGHT

(By Michael J. Connor)

NEW YORK-Jess Brodnax remembers too well the morning of last Nov. 7. Radio station WNCN was solemnly broadcasting Mozart's "Requiem." "It was right at the part where they sing 'May light perpetually shine upon thee,'” listener Brodnax recalls, when Mozart was suddenly interrupted by a rock 'n' roll rendition of Chuck Berry's "Roll Over Beethoven."

The attempt at humor was Starr Broadcasting Group, Inc.'s way of telling listeners that WNCN, a classical-music institution in this city since 1957, was at that moment switching its format to progressive rock and its call letters to WQIV. While lovers of Beethoven and Bach had been expecting (and lamenting) the switch for some weeks, Mr. Brodnax says, the joke at the composers' expense "offended and outraged" many of them.

Almost eight months have passed since the station switched to rock 'n' rolland now it appears that Mr. Brodnax and other classical-music buffs in this city are going to get the last laugh. Since last year, they have waged an intensive legal battle and organized a listener protest that has, at times, resembled a holy war. Largely because of that effort, one thing appears certain: WNCN's classicalmusic format will be returning very soon.

Citizen-group challenges to broadcasters aren't unusual-more than 200 are pending before the Federal Communications Commission-but the WNCN case illustrates how a group of determined citizens, by applying sufficient pressure, can get just about what it wants in a short period of time. In recent years, similar battles involving threatened classical-music formats have also been wagedsuccessfully-by listener groups in Atlanta, Syracuse and Chicago. The key to what seems like victory in New York, says Kris Glenn, an attorney representing one listener group, is that "Starr thought we were going to go away-but we didn't."

"A Political Movement"

Indeed, what started out last year as a helter-skelter attempt to save a favorite radio format has developed into what one attorney calls "a political movement," staffed entirely by volunteers-but backed by a relatively large

and influential public. The FCC, for example, has received more than 4,000 letters from WNCN listeners (ranging from musicologists to longshoremen) and petitions bearing more than 105,000 signatures. The WNCN cause has also been championed by the governors of three states, the New Jersey state legislature, the New York City Council, more than two dozen members of Congress and a host of influential citizens. What little financing there is for the operation has come from contributions and fund-raising events, including a major concert featuring folk singer Judy Collins and various classical artists.

All the time, emotions have run high.

"For sheer beauty and selection of classical music-and the fact that it was 24-hour-a-day classical music-WNCN was incomparable," says Eve Klein, a retired secretary from the Bronx who has garnered several thousand signatures on petitions to the FCC. Mrs. Klein, a frequent attender of cultural events, says she buttonholed people in theater and concert-hall lobbies and "even used to go to the ladies' room and get the ladies waiting in line to sign." One less-confident man, distraught at the loss of WNCN, broke into tears at a street demonstration, started drinking, and had to be helped home.

But the efforts have apparently paid off, putting the listeners in control of a complicated situation involving negotiations among five teams of lawyers in two cities. Starr Broadcasting, aching from legal and other expenses, announced last month that it wants to sell WQIV to GAF Corp., a diversified manufacturer of chemicals and other products, for $2.2 million. GAF wants to buy the station and return it to classical music, a spokesman says, because the company is "looking for an opportunity to do good and, do it at a profit."

Starr, on the other hand, is reluctantly selling the station. The decision came after Starr's position had worsened in May when an organization called Concert Radio and allied with the two listener groups in a "competing application" with the Fox. The organization asked that it be allowed to run the station rather than Starr-a move that complicated Starr's position.tk

So Starr decided to give up. The listed groups "filed so much and raised so many questions that it became too time-consuming and too costly for the company to push this to its resolution," says an unhappy Michael Starr, executive vice president of the company. "We were never less than optimistic about winning, but we simply can't afford the time and energy anymore."

There is a problem, however, to the sale to GAF. It can't be completed until there is a withdrawal of challenges by two listening groups and Concert Radio. And the groups say they won't withdraw unless they do certain things. Thus far, it's understood, their demands include a guaranteed return to the continuation of classical music, a listening voice in the station's future management, reimbursement of legal expenses and the Concert Radio-an option to buy the station if GAF ever wants to sell it or change the format from classical music. The primary purpose of the listener demands, says Charles Firestone, an attorney with the Washington-based Citizens Communication Center, is "to make sure the same thing doesn't happen again."

Livid Listeners

Despite this sticking point, lawyers who have been negotiating for weeks are said to be on the verge of an agreement that will, one way or another, bring WNCN's format back to New York. (In fact, there are rumors that the station, which has had trouble making money because of its uncertain status, will return to the classical format even before the sale to GAF is completed.) Although the sale could still fall through for a variety of reasons, one negotiator says, "The biggest problem now is having all of us stay civil until this thing is over."

Civility hasn't been the dominant virtue in the WNCN case since it started last August. That was when Starr announced that the station would switch to popular music after 17 years with a classical format. Starr, which bought the FM stations in 1972 for $3 million, had originally told the FCC that it intended to retain classical music. But after a two-year attempt, the company said, it was clear that competition from other local stations playing some classical music made ever-increasing losses likely. (The main competition came from the New York Times Co.'s WQXR-AM and FM, which play mostly classical music.) Listeners were outraged. Even Starr's chairman, conservative commentator William F. Buckley, himself a WNCN listener, declared that he had "no intention of listening to it under the new format." Mr. Buckley personally championed a unique campaign to "Save WNCN." The plan was to raise $500,000 from the public and donate it to a local noncommercial radio station together with

WNCN's classical-record library. The theory was that the noncommercial station, working with the $500,000 subsidy, would re-create WNCN's format while Starr's WQIV played the Rolling Stones.

The $500,000 was pledged within 10 days. But when it became clear that no noncommercial station could or would take over WNCN's format, listener rela tions with Starr and Mr. Buckley soured to the point of animosity. For instance, Alan Rich, music critic for New York Magazine, claimed that Starr had lied to the public and the FCC. He charged that Mr. Buckley's "Save WNCN" campaign was a public-relations ploy and a "tawdry insult to the intelligence."

Volunteer staffers who had been helping Mr. Buckley changed their loyalties and began aiding the two listener groups-the WNCN Listeners' Guild and Classical Radio for Connecticut.

The legal front

On the legal front, meanwhile, things were getting complicated. Lawyers such as Kris Glenn and Charles Firestone had begun filing hundreds of pages of motions and pleadings with the FCC and the courts. Their basic aim, however, was simple that Starr's license either be revoked or not be renewed. Their case was bolstered by an October ruling by a federal appeals court in a Chicago case; WEFM in that city had attempted to switch to pop music from classical.

The court ruled that when a "unique" format is involved, the FCC must consider the "public interest" in determining whether a license can be transferred or renewed. The ruling, which places the FCC in a position of evaluating programming, may be appealed to the Supreme Court.

The listener-group petitions, however, also contain a barrage of serious allegations about Starr and the company's top executives. For example, it was charged that Starr bought WNCN with the intention of turning it into a rock station. It was further alleged that Starr thus intentionally let WNCN "run down" into a severe money-losing situation to justify the switch to a more profitable rock format. And it was charged that Mr. Buckley's "Save WNCN" campaign was an attempt to "willfully mislead" the listeners and draw their energies away from other efforts to save the station.

Then in May came the "competing application" from Concert Radio. Headed by wealthy Chicagoan Charles Benton, the company was formed to compete for WNCN's license and is allied with the two listener groups. (For instance, Mr. Brodnax, the listener who objected to the playing of "Roll Over Beethoven," is a director of Concert Radio.) Mr. Benton says WNCN can be operated profitably, as classical stations in other cities are. But he says a major goal of the company is simply restoring the WNCN classical format to New York City.

The filing of the competitive application was an important strategic development in the legal maneuverings, most observers agree. The FCC could have scheduled a hearing to consider the merits of Concert Radio's application and of Starr's defense. (This is still possible but because of the pending sale now seems unlikely.) A negative finding about Starr's "character" by the FCC would have forced Starr to surrender its New York license without any compensation and also could have jeopardized Starr's hold on another 10 radio and television licenses.

A hearing, moreover, takes several months and a lot of money. Starr's legal expenses, which have already exceeded $100,000, could easily have risen to $500,000 had a hearing been held.

Starr says it would have won out in a hearing, but it nonetheless is giving up. It denies all listener allegations. Peter Starr, president of the company, says: "There's no question that we tried to make money with WNCN, and there's no question that we were losing money. This case raises questions about the future of radio. Is it going to be allowed to change with American life-styles? Or will people be able to insist that stations remain in a particular format?"

Whatever the answers may be to those questions. Starr's WQIV now is a lameduck station. It is expensive to operate and, because of its status, it has trouble selling advertising. Meanwhile, GAF Corp. and Starr are trying to wrap up agreements with the various parties, all of which must be approved by the FCC. One irony is that now the FCC may never consider the allegations made by the listeners against Starr. And another, noted by the WNCN Listeners' Guild, is that WNCN, with the aid of all the publicity surrounding its demise, may now be able to attract enough listeners and advertisers to make its resurrection profitable. Mr. KASTEN MEIER. I understand. I think music is somewhat different. I was going to ask Mr. Karp, one of my problems is to see how

public television as the giant you describe and increasingly affecting all the transmitting of commercial television, how, for nondramatic literary works, what use it puts those dramatic works to.

If you make the argument-and there are two arguments-one can make the arguments that the author ought to have the right to control whether or not his work is used and that is a reasonable assumption on the part of the artist. Apart from that, there is also a question of whether he is damaged by the use of his works.

How could an author be damaged?

Mr. KARP. Well, we

Mr. KASTENMEIER. Some of the programs you mentioned, Buckley's "Firing Line" and one or two others don't really appear to involve copyrighted material. "Book Beat" might.

Mr. KARP. I didn't mention those as examples of programs that use literary materials. I mentioned them as examples of public broadcasting programs as distinguished from the instructional. Anybody who watches prime time evening public television would wonder what these people are doing here claiming that they are in this dire need for literary materials. I mentioned them as examples of public broadcastThey claim that some of the local programing requires it. Our point is that where it is required, licenses can be granted easily and licenses are granted, for example, by the authors of children's books.

One of the principal creators of the material that is used on various types of programs, some instructional and some noninstructional where the book is read at considerable length. I have here, for example, the 1974-75 educational television guide from New Jersey, one State. They have a bunch of bigger ones. I only brought the small one. There are dozens of programs listed which start with a description, for example, the first is a children's book published by Norton Publishing Co. and then the books are read in this program.

There are various types of uses that can be made. How the author can be hurt if it is used without his consent? First of all there are occasions where even the reading of an entire work may interfere with the licensing to a broadcaster or a motion picture company who may not like the idea of unlimited-and that must be stressed-to make recordings and use them forever. That can be very damaging to those commercial users. Another way it can hurt is if the author has an opportunity to sell a recording right on his book or a tape and more books are being put on commercial records and tapes.

If that kind of a book could be taken under a compulsory license, turned into a recording, which is what they are really in the business of doing and then broadcast and rebroadcast, he would lose that commercial right. Then there is also the fact that on certain types of books, the readings of the book at any length can hurt sales of the book itself.

you are

If you read a short mystery novel to a radio audience and reading them right down through including the solution, who is going to go out and buy the book? The other aspect of the hurt question is that there are times when the author of a particular type of book feels that the reading of it by a particular producer, in a particular manner, could be damaging to the work itself.

There are even certain types of literary works that don't really go well when they are read vocally. A lot of people are under the as

sumption that you can take any book and you can read it and that it sounds just as good read as written.

That is not so. That is why when a book is sold for radio or television, it has to be adapted. But on top of all that, compulsory licensing system does the other terrible economic damage of constituting a tribunal's determination of mass rates which are definitely going to reach the lowest common denominator and tells the author we have taken your property, shouldered the cost which we are going to have to pay for, and now we are going to distribute it and that cost is going to come out of your royalties, too.

Mr. KASTEN MEIER. I can understand why an author might be entitled to control of his materials and why he might want some additional compensation. I guess I am persuaded that the broadcasting of a part or a whole would likely damage, commercially damage the author by public or educational broadcasting. But that is a different question.

Mr. PATTISON. What about the compensation after the performance has already appeared?

Mr. KORMAN. What happens in this industry is that people get certain standard amounts as the amounts that are paid as fees. For example, in network television, commercial network television, it is understood, although there is no piece of paper on this-there used to be until 1966, but not since then-it is understood that the networks have a right to synchronize music in connection with their programs for use in a single television network show.

If they want to do a rerun, the publisher will ask for and receive $25 or $50. The particular publisher has established what he wants and everybody knows what it is. They know they can do it and what it will cost.

Mr. PATTISON. As a practical matter, it does work.

Mr. FEIST. If I might add just two points, these relationships are continuing relationships. They rarely would be one isolated license to one producer. These are business relationships which go along for a period of years. Like all business relationships, there are accommodations and goodwill.

Mr. PATTISON. The problem of classical music, you mentioned an organization that the ASCAP, BMI, SESAC

Mr. KORMAN. No. The Concert Music Broadcasters Association is a group of radio stations that specialize in what you refer to as classical music. There is no question about playing that. You don't need anyone's permission to perform it.

Mr. PATTISON. What about recording it?

Mr. KORMAN. Even for recordings.

Mr. PATTISON. If I record it and you want to use the record.

Mr. KORMAN. If a public broadcasting radio station or anybody wants to perform the RCA or Columbia recording of Mozart by the Philadelphia Orchestra, they buy the record and they play it over the station. They don't pay anybody any more than the price of the record. If their listening audience gives them the record, they don't even have to pay for the record.