Broadcasting (Oct 1931-Dec 1932)

Counsel Asks Writ Of Supreme Court In Shuler Appeal 7reedom of Speech, Censorship md Property Issues Up . ;£ . FREEDOM of speech on the air, censor ship of programs and property rights of stations were the issues carried to the Supreme Court of the Uouis G. Caldwell United States Dec. 8 by Louis !J. Caldwell, counsel for KGEF, i Los Angeles, which was deleted by he Federal Radio Commission last : nonth because of the broadcasts of he Rev. Robert P. Shuler. On behalf of the Trinity Metho. list Church, South, licensee of the former station, Mr. Caldwell asked or a writ of certiorari, even hough the lower courts have not . inally adjudicated the case. He >etitioned the Supreme Court to everse the order of the Court of Appeals of the District of Colum>ia, denying his request for a stay •rder, so that KGEF might return . o the air during the litigation. I] It is the first case in which the •ractical issue of freedom of ; peech on the air has been raised, although the . Commission has hosen to ignore the free speech ssue, Mr. Caldwell has made it the ■rimary basis for his appeals and or that reason has attempted the hort-cut to the Supreme Court. Jsually an appeal to the Supreme ,'ourt is not construed proper until he lower court has finally decided he issue against the appellant. In his case, however, Mr. Caldwell eels that the denial of injunctive elief by the Court of Appeals is ufficient grounds upon which to ase a petition for review. While ne procedure is unusual, it is not nprecedented. Constitution Cited HE COMMISSION'S deletion of IGEF as well as the refusal of the ppeals' court to grant a stay or,er were cited by Mr. Caldwell as ~ansgressions of the constitutional uarantees of free speech and comensation and due process of law sfore deprivation of property, e declared the investment in GEF was $43,250. Mr. Caldwell inferred that the huler case was analogous to the "innesota gag law case decided by le Supreme Court last June, in tvor of the freedom of the press, ^e contended that the Court of ppeals did not give proper effect this decision of the Supreme ourt by extending the principles iere expounded to broadcasting. In its decision the Commission larged Shuler with having incited •eligious strife and antagonism." is programs were termed "underable and obnoxious to the listeng public." In his original appeal the lower court, filed Nov. 30, r. Caldwell said this decision was "direct and unmistakable chalnge to the right of free speech" id declared that certain "implitions" in the Commission's deci Radio and Weather PERSONS who insist that radio affects the weather are all wet, in the opinions of W. J. Humphreys, chief of the meterological physics division of the Weather Bureau, and C. W. Horn, general engineer of NBC. Despite frequent denials, however, letters of complaints continue to reach radio stations and newspapers. The most exhaustive research has failed to reveal any basis for the superstition that an intense drought or excessive rains can be blamed on radio. Someone recently even appealed to the League of Nations to order all European broadcasting stations to get off the air for five or six weeks in order to end the wet weather. sion as to Shuler were misleading. The court, however, did not grant the stay order. It was the duty of the Court of Appeals, Mr. Caldwell contended, to grant the stay order because of the "undisputed showing of certain and irreparable injury to" the station." Defines License "A LICENSE to operate a broadcasting station," he stated, "is not a mere privilege subject to defeasance at the whim of the Federal Radio Commission." "A licensee has a continuing right to renewal subject only to final determination, after due notice and hearing upon issues duly defined, that further operation of the station wi}l not meet the statutory standard of public interest, convenience or necessity." Mr. Caldwell held that the adverse decision not only has silenced KGEF, but has made it impossible for any other station in the country to broadcast the utterances of Dr. Shuler without exposing itself to the penalty of losing its license. He delves into past jurisprudence on the subjects of freedom of speech and property rights. He concludes that the Shuler case is one calling for the exercise by the Supreme Court of its supervisory powers "in order that the Court of Appeals of the District of Columbia may be required to grant petitioner's petition for stay order, and that to such an end a writ of certiorari should be granted and this court should review the decision of said Court of Appeals and finally reverse it." Whether the court grants the petition is decidedly conjectural. Should it decide negatively, however, it is presumed that Shuler's rights to appeal at a later date, in the event the lower court sustains the Commission, would not be prejudiced. WWVA Is Moving AUTHORITY has been granted by the Federal Radio Commission to WWVA, Wheeling, W. Va., to change its equipment and move its transmitter eight miles northwest of Wheeling as well as to move its studios locally in Wheeling. Jurisdiction Issue of I. C. C. Rate Case Examiner Holds N.Y. Hearing To Question of Authority WITH arguments restricted to the question of jurisdiction rather than to the facts involved, the Interstate Commerce Commission for the first time is considering the scope of its authority, if any, over the broadcast advertising rate structure. Formal hearings arising from the complaint of the StaShine Products Co., Inc., of New York City, described as a manufacturer of auto and shoe polishes, against the National Broadcasting Company and WGBB, Freeport, N. Y., were begun in New York City on Dec. 14 before an I. C. C. examiner, just as this issue of Broadcasting went to press. (I. C. C. Docket No. 24738.) The Commission first must determine whether the Interstate Commerce Act gives it authority to regulate advertising rates of stations and to evaluate broadcast properties as the basis for such rates. The defendants in their answers to the complaint contended, among other things, that they are not common carriers engaged in the transmission by wire or wireless or any other business subject to the provisions of the Interstate Commerce Act. The suggestion made by A. L. Ashby, vice president and general attorney of NBC, and Frederick H. Wood, counsel for NBC, that the Dec. 14 hearing be confined to the jurisdiction question has been approved by Ulysses Butler, chief examiner of the I. C. C. In a letter to the interested parties on Nov. 28, Mr. Butler said there appeared to be merit in the defendant's suggestion. "In the circumstances," the letter stated, "the evidence at the hearing on Dec. 14 will be limited to facts bearing upon the jurisdictional question, leaving the question of reasonableness, and otherwise lawfulness of the rates, charges, rules and regulations and practices, for further hearing after the determination of the jurisdictional question." Very little is known about the Sta-Shine Company. Although legally incorporated, there has been no showing that it has any particular standing in the auto or shoe polish fields. Ernie Adamson, of New York, is the counsel. The complaint, originally filed Sept. 19 but subsequently amended, alleged that the NBC and the Freeport station charged "exorbitant" rates for time on the air. It alleged further that the NBC had refused to furnish facilities and the I. C. C. has the authority to fix and regulate rates. NBC and the Freeport station, it was charged, had failed to file schedules of tariffs as required by the law of all "common carriers." The I. C. C. never before has formally considered whether it has jurisdiction over radio. While the commission has had occasion in the past to give cursory thought to the matter, no formal complaint, such as that of the New York company, has been filed previously. Commissioner Joseph B. Eastman has expressed a personal view that KOMO Objects OBJECTION to the report of Secretary of the Interior Wilbur's Advisory Committee on Radio, in which the statement is made that KOMO, Seattle, has shown "no feeling of responsibility for starting school programs on time," is made by the management of KOMO which offers letters from educators in charge of its educational programs and also the evidence of its station log to refute the charge. Bakery Sponsors Civic Events, Cuts Advertising INSTITUTIONAL advertising on the air without any commercial copy has proved effective for the Bricker Baking Co., of Lancaster, Pa., using WGAL, of that city. Adopting a policy of sponsoring all important civic events, the company makes only the announcement: "This program comes to you through the courtesy of the Bricker Baking Company — just another one of their services to the community." The company also sponsors a five-minute talk every morning in which persons of prominence in the community are invited to participate. the I. C. C. does not have the authority to regulate broadcasting rates in any fashion. The Sta-Shine company, on Dec. 5, filed with the I. C. C. an amended complaint in the case, in which it alleged, among other things, that the NBC not only is a corporation engaged in the transmission of intelligence for hire by wireless, but also by wire. Specifically cited were the wire lines maintained between stations of the network and the arrangements with the A. T. & T. for the use of such wires. The new allegations in the amended complaint are as follows: "Defendant has failed and refused to furnish facilities for sending complainant's messages at night, although other persons are provided with facilities denied to complainant. "Complainant alleges upon information and belief that defendant National Broadcasting Company is also engaged in the transmission of intelligence for hire by wire in interstate commerce in that _ its several wireless or radio stations located in different states are connected by wires over which the said intelligence is transmitted. "Complainant alleges upon information and belief that defendant National Broadcasting Company has entered into an arrangement with certain telephone companies for the use of the wires above mentioned and also for the establishing of a through route for the handling of the traffic in intelligence collectively called messages. "Complainant alleges that no contracts or written documents have been filed with the Interstate Commerce Commission by defendant National Broadcasting Company as required by law showing what arrangements exist between the telephone companies and defendant for having handled the said traffic, all in violation of the act." ecember 15, 1931 • BROADCASTING Page 27