Broadcasting (July - Dec 1939)

matter of argument that no power of censorship or abridgement of freedom of speech existed in the Commission because no express grant to that affect was contained in the law, but insisted that the law should contain an express declaration of the denial of such power to the Commission. It is to my mind an argument without warrant, therefore, to say that because Congress has conferred upon the Commission the many powers it has, some of which I have enumerated, and especially because Congress has conferred upon the Commission the power to classify stations, that it is within the power of this Commission in making such classification to exercise a form of censorship by determining the character of program that shall be broadcast. To say that in designating frequencies for use for police purposes, for instance, this Commission at the same time can designate the character of police information that shall be given or withheld; or that in assigning frequencies to the domestic broadcast field or for foreign broadcasting it can indicate the character of program that shall be broadcast. Any such extreme construction of the power conferred by the provision authorizing the Commission to classify stations makes entirely nugatory and void the very plain, unmistakable language of Section 326 of the Act. But even assuming that Congress could, in connection with the classification of uses to which frequencies shall be put, give to the Commission the power to lay down a rule governing program content, it is perfectly manifest that Congress has done no such thing and has not left uncertain the fact that it has done no such thing. Judicial Powers It is not possible for anyone — ■ and indeed it would be most unwise— to undertake to enumerate facts regarding the operation of a station which would warrant the Commission acting in a judicial capacity in refusing a license or in preferring one applicant as against another. The Commission is entitled to have and does have a judgment as to how far the operation of a station, as compared to other stations, justified its determination as to whether such operation is in the public interest, convenience or necessity. But mark you, this right of judgment arises out of the fact [ that under the present state of the art only a limited number of licenses can be granted and therefore there must follow, by some agency of the Government, a determination not as a matter of favor but as a matter of public interest, as to who shall be given a license. It is conceivable that the time is near at hand when the progress in the art will be such as to create an unlimited number of channels in the ether that can be used for broadcasting, and when that day arrives the power of the Commission to determine on a comparative basis the rights of applicants to licenses unquestionably will be curtailed. Until such time, the exercise of its right to determine what constitutes public interest should never LARGEST TUBES of their kind ever built in this country, two of these new type 100 kw. giants, in which the filament can be replaced, have been installed in the new 100 kw. international shortwave transmitter of the General Electric Co. at Schenectady, W2XAF, scheduled to go into operation Aug. 1. GE engineers E. D. McArthur, H. E. Rowe and L. E. Record designed the tube, which are expected to produce an effective directional power output of more than 600 kw. but are not expected to replace the 100 kw. tubes in standard or longwave broadcast transmitters. In photo above is the demountable pliotron, as it is called, with man holding the filament assembly. be expanded into any exertion of power by which mere opinion of the Commission is made the test as to what in its judgment is in the public interest. The Commission in my judgment never is warranted, because of a classification as to service to be rendered by a station, in entering into the domain of censorship. The power of this Commission is very great. The fact that licenses until but recently were limited to a six month period are now limited to a period of a year, of itself gives to the Commission control over the individual licenses, which makes it doubly essential that control shall not take the form of indirect censorship, let alone of direct. Wisdom of the Rule Who shall define culture ? Certainly I should not be so bold as to take upon myself any such obligation. But this I am free to say: That no broadcast program, whether intended for domestic or foreign listeners, can ever be considered as reflecting the culture of the American people when it bears the stigma of governmental censorship and lacks the American characteristic of complete freedom of expression. The fact that the foreign listener knows that the international broadcast he hears from America does convey the free, untrammeled, uncensored judgment of those broadcasting, is one reason for the popularity of the broadcasts. If the Federal Government is to undertake to stand sponsor for international broadcasts, in that it makes a positive requirement that such broadcasts shall reflect the culture of America and shall be such as to Dromote international your Honors, as the governmental agency underwriting the harmlessness of programs broadcast on international waves, should prove faulty, the Federal Government must accept the responsibility for the broadcasts and take disciplinary action to punish the offense and to prevent its recurrence. In summary and in conclusion, may I say that it is my position that the Bill of Rights is an express limitation upon every power conferred upon our Federal Government by the Constitution of the United States. That Congress, recognizing the limitation in the First Amendment upon freedom of speech, has most emphatically and explicitly declared that this Commission should exercise no form of censorship. That all of the powers conferred upon the Commission regarding classification and other matters are by the express terms of Section 326 of the Radio Act made subject to that clause. That Rule 42.03(a) is censorship none the less because of the benevolent intent of the Commission in adopting it. We lose sight entirely of the fundamental issue here involved if we accept a disclaimer as to an intent to disagreeably or restrictively enforce a regulation as warranting its enactment. We were told during the hearing that the industry should have no concern over the regulation adopted or some substitute for it, because its enforcement would be by reasonable men and without an in' tent to interpret it oppressively. This is the old, old plea for power sought to be justified by a disclaimer of intent to abuse the power. But I submit as a matter of law that a regulation adopted speaks in its own language and once adopted it becomes the duty and not the option of those charged with enforcement to see to its enforcement. It should be a sufficient answer in the realm of practical matters that if the regulation is not to be interpreted as censorship in any way and is not to be enforced, there is no need for it. HARTFORD^CONN 13+13=52 iVIany of our iiational and local advertisers originally contracted for just 13 weeks. After they saw the direct results— they renewed for another 13 weeks and another. Now the contracts are for 52 consecutive weeks because they get continuous results. BASIC STATION OF COLUMBIA BROADCASTING SYSTEM National Representatives PAUL H. RAYMER COMPANY BECAUSE four-fifths of Nebraska's population lives on farms and in small towns. And for 14 years KMMJ has kept itself a farm station — giving these loyal, friendly people the programs THEY like and want, and only those advertising messages they can believe in and use to their honest satisfaction. Result is that KMMJ is Nebraska's No. 1 farm station — and 80% of Nebraska is rural! Now, KMMJ's new antenna and transmitter means even greater results for you . . . dollars and cents results you can recognize. Nebraska's farm income, 1st quarter 1939, gained 30% over same period last year. Among all states Nebraska ranks third in percent of income gain. Tap this rich, eager market through KMMJ. Wire or write for costs and availabilities. • RANDALL RYAN, General Manager HOWARD W. WILSON CO. Representative Grand Island is Nebraska's third city; outstanding dairy and poultry center; world's second largest horse and mule market; major livestock auction center; three road railroad center; nearly 3 million dollar annual payroll. The Dominant Selling Force to Four-Fifths of Nebraska tainimai GRAND ISLAND^ NEBRASKA BROADCASTING • Broadcast Advertising August 1, 1939 • Page 57