Broadcasting Telecasting (Jan - Mar 1951)

r ERSON R BOTH RCA and Emerson Radio & Phonograph Corp. last week told the U. S. Supreme Court that the Chicago Federal District Court has not afforded "judicial review" in dismissing the suit against FCC's color decision. Likewise, Emerson and RCA — the latter with its two subsidiaries, NBC and RCA Victor Distributing Corp. — charged that the Administrative Procedure Act had been disregarded by the FCC in "refusal" to consider certain "relevant" matter in the color proceedings. These contentions were set forth in appellants' reply to an earlier motion of the FCC, CBS and the Justice Dept. directed to the Supreme Court and asking that the Chicago court's judgment be affirmed [Broadcasting • Telecasting, Feb. 12]. In addition, the joint motion had sought to have dissolved the temporary restraining order against commercial use of color, which had been issued by the lower court. Contents of RCA Reply In its argument last week, RCA held: 0 Transmission standards for TV which "cannot be received on any of the 12 million receivers in the hands of the public are contrary to public interest." ® The Commission record is "admittedly inadequate" and it has "violated its duty to inform itself" and to take account of determinative facts. 0 Prohibition of broadcasting of compatible system in competition with incompatible is "contrary" to law. 0 "Errors" were made in the District Court. ® No administrative agency should rely on "an interested staff member" (E. W. Chapin, chief, FCC Laboratory Division). RCA interpreted the incompatibility of the CBS color system as meaning that present set owners would have to spend $50 or more to restore program service, and even then the CBS system would afford a "degraded" black-andwhite picture with half the detail of present pictures. "Incompatibility is a basic defect" in a color system," declared RCA, "and the cost of achieving compatibility should be borne by the developer of a color system" and not be "passed on to the public." RCA charged the Commission last fall adopted the CBS system without "receiving such further information as to the CBS system, refusing to consider further information with respect to the RCA system, and without according opportunity for further development." RCA stated: The significant point here is that the Commisson recognized in its First Report that the record of the hearings before it was inadequate to enable it to discharge its duties. The Commission nevertheless failed to inform itself as to ■ matters it recognized it should. Whether the Commission can base a decision upon a record which its own Report has stated is inadequate clearly presents a novel and substantial question for this Court to decide. RCA cited the dissent of Judge Walter LaBuy of the District Court wherein he stated ". . . it is difficult to understand why the Commission refused to hear additional evidence and chose instead a course of action, using its own words, based 'on speculation and hope rather than on demonstrations'." Procedural Violation Mentioned Question of violation of the Administrative Procedure Act was raised in the RCA brief, which referred to "refusal" of the FCC to consider the RCA Progress Report and the report of the Condon Committee "even though these were submitted in the RCA comments . . . requested by the Commission." Sec. 4 (b) of the act provides, in part: After notice required by this section, the agency shall afford interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity to present the same orally in any manner; and, after consideration of all relevant matter presented, the agency shall incor On Color Motion porate in any rules adopted a concise general statement of their basis and purpose. As a result of the color decision, declared RCA, the present system of black-and-white must face competition with CBS black-and-white, but that CBS is "immunized" from competition with compatible color. "There is no finding by the Commission, contested or otherwise, that the commercial broadcasting of the RCA compatible television system should not be authorized together with the incompatible system." RCA pointed out "so far as appears . . . the Commission did not even consider there was any middle ground." Withheld Judgment Referring to "errors" of the District Court, the appellant's reply said "the express language of the District Court showed it intended to leave the decision of this case on the merits to this [Supreme] Court." RCA pointed out that certain evidence, given to the Commission but disregarded by that agency, was further Submitted to the District Court for decision without any results. Of this, RCA said: "Surely the District Court was in error in concluding that it could not consider such evidence for the purpose of determining whether such evidence should have been considered by the Commission." In its reply last Monday, Emerson declared the order may "irrevocably congeal the character of television for generations to come" in that a system established cannot readily be changed. Accordingly, the appellant urged the Commission should "solicit the careful review of its judgment in order to afford . . . maximum degree of assurance that its decision is free of detectable error." Emerson contended that the FCC showed "stout resistance" to re-examination of its ruling by "refusal" to consent to a stay of the color order "while the court deliberated on its issues." The Em erson reply declared Congressional policy, "as reflected in the Admin istfative Procedure Act and debau which lead to its enactment," is de signed to put a "tight curb" upoi "claims to administrative omnit cience" rather than give those claims "the free rein" sought bj the FCC. The District Court action in restraining enforcement of the coloi order pending a decision, and continuance of the temporary restrain! pending appeal to the Supreme Court was cited by Emerson as! recognition of "the substantia] character of the appellants' challenges." However, the Emerson reply pointed out that the District Court had not afforded "judicial review" of the case and with "forthright policy of indecision" had failed to resolve substantial questions. The appellant said: But the District Court, although it observed the rituals of judgment, withheld the substance of the decisive safeguard against administrative excess — the safeguard guaranteed by statute and by the quoted language of this court — "judicial review." The District Court was in a sense overwhelmed by its discovery that the widespread legal and public importance of the issues raised by appellants rendered this a "controversy which badly needs the finality of decision which can be made only by the Supreme Court." For the District Court, believing on heretofore good authority that "any decision we make is appealable to [the Supreme Court] as a matter of right," sloughed off its robes of office to view in tranquility what it chose to regard as "little more than a practice session where the parties prepare and test their ammunition for the big battle ahead." Resolute to unravel the last faded remnant of its authority, the District Court completed its own abdication and its careful frustration of the statutory scheme by shifting to this Court the District Court's primary and prescribed responsibility for the judicial review of administrative action. With notable candor, the District Court announced that "in studying the case, we have been unable to free our minds of the question as to why we should devote the time and energy which the importance of the case merits, realizing as we must that the controversy can only be finally terminated by a decision of the Supreme Court. Emerson Questions Questions which Emerson claimed the District Court failed to resolve were: (1) Whether substantial evidence supported the FCC adoption of CBS color standards; (2) Whether, assuming arguendo that the FCC had a substantial evidentiary basis for adopting CBS color, the FCC (Continued on page 62) TV Censorship: One Down, More to Go REFUSAL of the Supreme Court to review a decision of the U. S. District Court of Pennsylvania, which held that states are not empowered to censor television films, confirms the well-established principle that television, like radio, is interstate commerce, subject only to federal regulation. And it preserves the sanctity of the First Amendment guaranteeing the fundamental freedoms. The high court's stand should make the Pennsylvania State Board of Censors shut up. It seems not to have had similar effect elsewhere, however. In St. Louis, James J. Carroll, notorious betting commissioner, refused to testify before the Senate Crime Investigating Committee while sessions were being televised. Some law Page 54 • March 5, 1951 is bound to be written on this subject unless the committee decides to let the matter drop and let Mr. Carroll have his impudent way. In Boston, which bans books faster than new ones can be published, the Most Rev. Richard J. Cushing, Roman Catholic Archbishop, was quoted in a newspaper as criticizing "suggestive" television shows and saying that TV "is destined for censorship." In Washington, "Rep. Thomas J. Lane (D., Mass.), alert to the wishes of his esteemed constituent, made a 10-minute speech on the floor of the House attacking immoral television programs and insisting that the FCC establish a board of censors to review TV shows. The congressman added that if the FCC did not respond to his suggestion, he . . AN EDITORIAL would introduce a bill to set up a TV censors board. All these matters are probably going to be discussed when the FCC gets around to its hearings on the subject of television programs, the hearings which probably will start as innocently as procedures that led up to the radio Blue Book. The point for broadcasters to keep in mind is that they must begin now to prepare their defenses. They must provide organized resistance against the kind of censorship that the arrogant betting commissioner of St. Louis indulged in and the kind proposed by the archbishop and the congressman. To give in to either form would be to forsake a basic right of freedom of the air. Telecasting • BROADCASTING T]T