Broadcasting (Oct 1931-Dec 1932)

Safeguard of Overquota Areas Seen inWIBO-WPCC Reversal District Appellate Court Declares Commission Arbitrary Despite Davis Amendment A JUDICIAL interpretation of the Davis amendment to the Radio Act of 1927 that has the effect of protecting broadcasting stations in overquota states was rendered by the Mr. Yost Court of Appeals of the District of Columbia in an opinion Dec. 5 reversing the Radio Commission's deletion of WIBO and WPCC, Chicago, in favor of WJKS, Gary, Ind. The Commission's decision, reached last year, was based entirely on the Davis amendment and the quota regulations issued in purported compliance with it. The case was regarded as a test of the Commission's power to shift assignments from overquota to underquota states almost at will under the Davis omendment. By a 3-to-2 decision, the court held the Commission had been "arbitrary and capricious" in its ruling. In effect, it adopted the recommendation of Chief Examiner Yost, who had urged denial of the WJKS application but who was overruled by the Commission. In a minority opinion, handed down by Justice Groner, and concurred in by Justice Hitz, it was held that the Commission should have been sustained; that the Davis amendment actually "required" the Commission to act as it did, and that the court majority had decided the case on the facts though the Radio Act as amended restricts it to reviews on questions of law only. Dill Raps Decision DUE to this conflict within the court, the Commission and the Department of Justice may seek final adjudication through a petition for a writ of certiorari in the U. S. Supreme Court. In the Senate Dec. 7, Senator Dill, (D.) of Washington, criticized the majority opinion as one which "practically nullifies" the Davis amendment. "It is such a farfetched interpretation of ordinary language," he said, "that it does not seem possible that a court could have written such a decision; and I sincerely hope the Radio Commission will carry this case to the Supreme Court of the United States." He had both the majority and minority opinions printed in the Congressional Record. WIBO, licensed to the Nelson Bond and Mortgage Co., and WPCC, operated by the North Shore Church, share time on 560 kc, the former with 1 kw. night and 1V2 kw. day, and WPCC with 500 watts. The stations were ordered deleted after a hearing, and their facilities were assigned to WJKS, only 30 miles from Chicago. WJKS operates on 1360 kc. with 1 kw. night and IV4, kw. day, shading with WGES, Chicago. Indiana is 22 per cent underquota and Illinois is 55 per cent overquota. Although licensed in the name of the Johnson-Kennedy Radio Corp., WJKS is owned principally by Ralph Atlass, of Chicago. At the protracted hearings before Chief Examiner Yost, and in the court case, the station was represented by Mabel Walker Willebrandt, former Assistant Attorney General. Levi Cooke, Washington, represented WIBO and WPCC and procured a stay order following the Commission's adverse decision, thus permitting the Chicago stations to continue operating. Decision Significant SINCE 27 of the states are overquota in varying degrees, the court's reversal of the WIBOWPCC decision is regarded as particularly significant. Had the Commission been sustained, according to legal opinion, it would have been invested with practically unlimited authority to shift facilities from overquota to underquota states. The majority opinion was written by Justice Robb and was concurred in by Chief Justice Martin and Justice Van Orsdel, all veteran members of the court. Justices Groner and Hitz were appointed to that bench only last year. The majority held that the fact that Illinois is overquota and Indiana underquota was not sufficient grounds upon which to wipe out a station like WIBO with a total investment of $346,000 and an estimated worth of between $500,000 and $700,000, nor WPCC. The court did not go into the merits of the property rights question, which had been raised as a paramount issue, dismissing that issue with the statement that it had already held that the business of broadcasting, being a species of interstate commerce, is subject to reasonable regulation by Congress. Re Davis Amendment THE QUESTION in the case, therefore, it continued, was whether the decision of the Commission is a "reasonable exercise of regulatory power or an arbitrary and capricious assertion of power." Both stations, it said, have served public interest and therefore there was no question as to service. The majority emphasized that the Davis amendment does not call for an "exact mathematical equality" of licenses, frequencies, time on the air and station power among the states or zones, but directs the licensing authority to establish and maintain "as nearly as possible," equality among the zones and to make a "fair and equitable allocation of licenses," etc., to each of the states within each zone according to population. Declaring that an exact mathematical division may be "physically impossible," the court said that Congress evidently recognized that the licensing authority might not be able to establish and maintain such an exact distribution. The opinion stated: "We have repeatedly held that Brink of Waterfall HERE'S HOW Urban Johnson, sound effects chief of CBS, simulates those eerie noises in the Fu Manchu mystery stories. With this apparatus, sounds are made of rain falling, wind moaning, footsteps crunching in gravel, an airplane roaring and pistol shots ringing out. The scene in this case was the brink of a waterfall. The tub at which Helen Earle, Johnson's assistant, is sitting, is the waterfall, the rattans on the motor furnish the wind, the drain-pipe (right) is the plane. The tin can held by Miss Earle pours sand on cellophane to "make rain." Johnson slaps leather with a stick and crunches shoes in a can of breakfast food — making "shots and footsteps." it would not be consistent with the legislative policy to equalize the comparative broadcasting facilities of the various states or zones by unnecessarily injuring stations already established which are rendering valuable services to their natural areas * * * ." The Dissenting View IN HIS DISSENTING opinion, Justice Groner referred to the Shuler case and pointed out that the court held the right to operate a station is "permissive only" and within the regulatory power of Congress. He held further that the Davis amendment is based on the equality of privilege among the several states and is neither arbitrary nor capricious. "The opinion of this court," said Justice Groner, "entirely ignores the findings of the Commission but relies on those of the examiner, which the Commission expressly overruled. In so doing I think the court is substituting its own conclusions for those of the Commission, and I had assumed that in view of the change in the statute * * * this might not be done — especially since it is not claimed that there was any irregularity in the proceedings or error in the application of the rules of law." Declaring he felt the Davis amendment "requires" the Commission to grant applications from underquota states, if they serve public interest, Justice Groner said he was not unmindful of the fact that the effect of this is to impose upon the Commission great responsibility and wide powers affecting large investments in property. In no other way, he asserted, can the equalization which Congress has ordered be accomplished. He con Post Office Alters Fan Letter Ruling Mail Forwarded from Station To Net Not First Class FAN MAIL received by networkaffiliated stations may be forwarded to network headquarters, unopened, by express or other similar method without payment of additional first class postage, the Post Office Department has ruled in revising regulations governing the handling of such mail. The ruling is limited to forwarding of fan letters from stations to network headquarters and does not apply to forwarding from network headquarters to the program sponsor, in which instance the department holds the fan mail must carry additional first class postage. Nearly two years ago the department ruled that fan mail constituted "letters" within the meaning of the postal laws and therefore could be forwarded only upon payment of the first class rate. In April, 1931, NAB requested reconsideration of the ruling to permit the forwarding of mail by express, contending that such communications were not "letters" within the meaning of the law since the messages were addressed to the program sponsor rather than to the station. In his new ruling, Second Assistant Postmaster General Glover stated : "You ask whether letters received by a broadcasting station for program sponsors, and which are not opened by the station but are merely assembled and counted for notation on the station's records, may be transmitted unopened by express or other similar method to the headquarters of the network with which the station is affiliated. "In reply, you are advised that these communications may be forwarded outside the mails without the payment of postage from the broadcasting stations to the headquarters of the network, provided they are not opened upon receipt at the stations, as under these conditions they do not have the character of 'letters' within the purview of the private express statutes." NBC Appoints Black FRANK BLACK, conductor and composer, has been appointed program director of NBC, succeeding Erno Rapee, who goes to Radio City in a similar capacity. Widely experienced in the musical and radio fields, Mr. Black is responsible for many of the innovations now familiar to radio listeners, including the notable direction of the Revellers. eluded that since Illinois is overquota and Indiana underquota, the transfer of the facilities from one state to the other would "supply an existing need to the people in Indiana without corresponding loss to the people of Illinois and would carry out the Congressional will." A NEW broadcasting station has been authorized at Manizales, Colombia, to be operated by Roberto Baena V, with power of 200 watts on 42 meters. Its call is HJ4ABB. Page 14 BROADCASTING • December 15, 1932