Broadcasting (Oct 1931-Dec 1932)

Record Details:

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What Broadcast Applicants Should Know By ELMER W. PRATT Attorney -Examiner, Federal Radio Commission Examiner Hearings Follow Procedure of Federal Courts; Commission System, Though Detailed, is Efficient TO MANY broadcasters, and even more so to new applicants, the Radio Commission's procedure with regard to broadcast applications is just an expensive ordeal which they only partially understand. The author of this article, who has been with the Commission's legal division since its inception, attempts to clarify this system by explaining the basis for each requirement. In place of a legal maze, there evolves under his guidance an orderly, though formal and judicial, process. The information should be of distinct service to any applicant for new or modified broadcasting facilities. Elmer W. Pratt time-honored methods developed and used in courts Of law in this country for the taking of testimony and the ascertaining of facts. In general, there are two types of hearings, namely, those with relation to applications for instruments of authorization, i. e., for construction permits, licenses, and renewals, modifications and assignments of licenses; and those with respect to the revocation of licenses. Only the first type will be here considered. Hearings on applications arise in three different ways: (1) When an application is granted in whole or in part without a hearing, the grant is condi | tional and any party aggrieved or whose interests are adversely affected by such grant may obtain a hearing on such application by j filing with the Commission within l 20 days from the effective date of such grant a protest in writing directed to the action of the Com i mission making such grant. The protest must be executed and sworn to by a person having knowledge of the facts therein stated and must contain a statement of the facts which protestant expects to prove at the hearing. Upon the filing of such a protest the effective date of the grant is postponed and the application is set for hearing. The protest is taken as a pleading limiting the issues to be tried but is not considered evidence of the< facts therein stated. Re Partial Grants J (2) WHEN, without a hearing, ; an application is granted in part ! or with privileges, terms or conditions other than those requested, an applicant may secure a hearing with respect to the part of the application not granted or with respect to the privileges, terms or conditions which are different than those requested by filing with the Commission, within 20 days of the effective date of the Commission's decision, a written request for such hearing. This request must be accompanied by a statement in writing of the facts which the applicant expects to prove at the hearing. Upon receipt of such a request and statement in proper form the Commission postpones the effective date of its action and sets a time and place for hearing on the application in question and the applicant and other interested parties are notified. Within a period of ten days from the receipt of such notice the applicant must deliver or mail a copy of the statement of facts to be proved to all parties notified of the hearing and must file with the Commission an affidavit stating that this requirement has been met. The written statement of facts to be proved is taken as a pleading, and evidence offered by the applicant at the hearing is limited to proof of the allegations contained in such statement. (3) When an application is proper upon its face but the Commission is unable, without a hearing, to reach a determination that public interest, convenience and necessity will be served by the granting thereof either in whole or in part and that the granting thereof in whole or in part would not aggrieve or adversely affect the interest of any party holding an instrument of authorization from the Commission, such application is designated for hearing. A written notice is mailed to the applicant setting forth the action of the Commission together with a statement of the Commission's reasons thereof and containing a designation of a time and place for hearing as well as a list of other parties notified. The applicant, in order to avail himself of this opportunity to be heard, must file with the Commission within 20 days of the mailing of the notice a written appearance consisting of a statement of his desire to be heard together with a terse and complete statement in writing of the facts which he expects to prove and an affidavit showing that copies of such appearance and statement have been served upon or mailed to all other parties notified of the hearing. Should an applicant fail to file the required notice and statement within the time limit specified (or such extension as the Commission may grant upon a proper showing), he is defaulted, his application is denied, and the other parties are duly notified. When, however, the appearance and statement are duly and seasonably filed, the application is entered upon the hearing docket. Should the applicant fail to appear and offer evidence in support of his application on the date set for hearing, he is defaulted and the application is denied. The applicant's statement of facts is not evidence but merely a pleading, and this together with the statement of the Commission's reasons for setting the application for hearing constitute the issues to be tried. Hearing Procedure HEARINGS are held before the Commission, a commissioner or an examiner appointed by the Commission and are governed, in general, by the rules of evidence which prevail in civil proceedings in Federal courts. In hearings on applications the burden of proof is upon the applicant who must establish such facts as will warrant a determination by the Commission that public interest, convenience and necessity will be served by the granting of his application. The applicant has the opening and closing of the evidence and argument, if any. (Oral argument is permitted only before the Commission). Unsworn documents and merely cumulative evidence are not admissible. When relevant, a list of all stations, together with their operating assignments, licensed by the Commission in the broadcast band, a list of all applications pending at the date of the hearing with respect to said band and the Commission's rules and regulations hav ing to do with said band and the services permitted therein, become a part of the record in each hearing on an application for broadcasting facilities. Copies of reports of any governmental department or agency made by an employee thereof in the course of his duties, if material and relevant, are admissible in evidence. Continuances, extensions of time for filing documents or for the taking of other steps in connection with hearing are granted for reasons such as are usually considered sufficient in analogous proceedings in Federal courts. Requests for continuances, extensions of time, etc., must be in writing and must be accompanied by a written statement of the additional time required and the reasons for the request. When a hearing is held before an examiner the testimony, duly transcribed, is reported by him to the Commission together with his written report containing a recommendation as to the decision to be made in the case and a statement of the facts and grounds upon which the recommendation is based. Expert Testimony AS THE EXAMINER'S report and recommendation, as well as the decision of the Commission, are dependent upon the record made at the hearing, a knowledge as to what facts are essential to a showing that public interest, convenience and necessity will be served by the granting of an application is important to every applicant. It is impossible to lay down any definite rule or set of rules to define what may constitute a prima facie case with reference to any of the different kinds of applications which come before the Commission. The varying aspects of public interest, convenience and necessity furnish the light by which the evidence is viewed and what constitutes a proper showing in one case may be insufficient in another. The following observations, however, are suggestive of important matters which should be considered in the preparation and presentation of evidence. In a hearing on an application for a construction permit for a new station all the facts set forth in the application should be established by competent evidence. Special attention should be given the following points: applicant's legal and ethical qualifications; applicant's financial responsibility; type and scope of the service proposed to be rendered; need of the proposed station and service; availability of talent; applicant's technical resources, proposed organization and operating personnel; type and efficiency of apparatus to be installed; quota; availability of facilities interference ; commercial feasibility with reference to sponsored programs, advertising, etc., and each of these in its proper relation to each of the others. Questions of interference must (Continued on page 26) March 1, 1932 • BROADCASTING Page 9