Broadcasting Telecasting (July - Sept 1951)

Moves to Speed Thaw (Continued from page 23) mission order directing the station to show cause why its frequency should not be changed from Channel 4 to Channel 7 and requested a separate hearing as required by the Communication Act. Leading off those supporting the Commission's allocation authority, FCC General Counsel Benedict P. Cottone emphasized the Commission's decision on this issue would affect the fundamental legality of comparable authority in virtually all other communication services. Mr. Cottone argued FCC's basic authority is clearly and specifically spelled out in Sec. 303 of the Communications Act, where Congress has delegated the appropriate power to FCC, in these subsections, to: (a) Classify radio stations; (b) Prescribe the nature of the service to be rendered by each class of licensed stations and each station within any class; (c) Assign bands of frequencies to the various classes of stations, and assign frequencies for each individual station and determine the power which each station shall use and time during which it may operate; (d) Determine the location of classes of stations or individual stations; (e) Regulate the kind of apparatus to be used with respect to its external effects and the purity and sharpness of the emissions from each station and from the apparatus therein; (f) Make such regulations not inconsistent with law as it may deem necessary to prevent interference between stations and to carry out the provisions of this Act; PROVIDED HOWEVER, That changes in the frequencies, authorized power, or in the times of operation of any station, shall not be made without the consent of the station licensee unless, after a public hearing, the Commission shall determine that such changes will promote public convenience or interest or will serve public necessity, or the provisions of this Act will be more fully complied with; (g) Study new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio in the public interest; (h) Have authority to establish areas or zones to be served by any station; * * * (r) Make such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this Act, or any international radio or wire communications treaty or convention, or regulations annexed thereto, including any treaty or convention insofar as it relates to the use of radio, to which the United States is or may hereafter become a party. ;. Mr. Cottone explained the only exception was detailed by Congress in Sec. 303 (f) where a hearing SRT-TV INTENSIVE PROFESSIONAL COURSES i. TELEVISION BROADCASTING Instruction by top-ranking profetslonals under actual broadcast condition* Complete TV Station Equipment Co-Educational • Day or Evening Approved for Veterans Send for free prospettui "Carters in Television" SRI (School ol Radio Tochnlqyef TELEVISION STUDIOS America's Oldetl Broadcasting Moot 3t6We»i 57 Street, New York tt.N.Y. must be afforded an existing station whose operation would be changed. The general "cover-all" provision cited by Mr. Cottone was Sec. 4 (i) of the statute: The Commission may perform any and acts, make such rules and regulations, and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions. "We think that language is very plain," he stated. To the FCBA argument applicants would be deprived a full and fair hearing under Sec. 309 (a) of the act if FCC were to fix by rules a pre-determined allocation plan, Mr. Cottone noted this issue has been upheld in favor of FCC by the courts in comparable cases. He said the courts "have consistently sustained the authority of the Commission to adopt general rules and regulations in connection with its licensing functions." Hearing Right Issue He said under the FCBA argument, an applicant for a broadcast station in the police frequencies could demand a hearing on his application, and if denied, appeal under Sec. 309 (a). In his memorandum brief on this subject, Mr. Cottone indicated the FCBA contention respecting rights to hearing under Sec. 309 (a) would prevent the Commission "from adopting any general rules which define and declare elements of the public interest in advance of individual licensing proceedings" and "is, therefore, a contention not only unsupported by the provisions of the Communications Act but one squarely in the teeth of every judicial decision bearing upon the subject." The brief continued: It would necessarily follow from the contentions of petitioners that no rule or statement of policy which might be adopted by the Commission could foreclose an applicant from reopening the entire question in a hearing on its application. This necessarily means that the Commission has no power at all to adopt any effective general policy, by rule or otherwise, to be applied in determining whether the public interest would be served by the grant or denial of an application. Every one of the Commission's rules would be transformed into a mere advisory declaration. However, it has been consistently held that the Commission's Rules and Regulations are not merely tentative advisory pronouncements but have the force and effect of law. Mr. Cottone explained that under FCC's proposal anyone wanting a channel not listed for his city in the allocation table may petition for a change in the rule to provide such a channel if available. If the petition is denied, he explained, the party has full judicial review provided under Sec. 402 (a) of the act. The one-year limitation on filing of such petitions, he stated, is a "reasonable limitation" imposed by administrative necessity and which has been upheld in comparable circumstances by the courts in such decisions as the Ashbacker case. Noting FCBA's chief objection to FCC's plan lies with Sec. 307 (b) of the act, Mr. Cottone argued there is nothing in this section which prohibits the rules proposed. There would have to be "pretty Page 68 July 2, 1951 DUMONT REQUEST Wants Early FCC Hearing REQUEST for an appearance in open hearing at the earliest possible moment was made Thursday to the FCC by Allen B. DuMont Labs, which is advocating a plan of TV channel allocations widely variant from that proposed by the FCC. Hearings on video allocations are scheduled to begin July 23 in Washington. The DuMont request was contained in a telegram sent to T. J. Slowie, FCC secretary, by William A. Roberts, DuMont counsel, reading: Regarding proposed hearing under Section 13 (A) of third notice of proposed rule making, Docket No. 8736 et al., DuMont advises that it desires to appear for the purpose of giving evidence regarding the Commission's proposals in Appendices C and D and in support of its comments filed thereon, in open hearing at such time and place as the Commission may designate. Inasmuch as DuMont's presentation and proposals related to the allocation plan for the entire United States and adjacent foreign territory we request that if practicable we be assigned for appearance at the earliest possible date in the proposed hearing. It is our understanding that the Commission's amended notice now assigns this hearing for July [23], 1951. We do not consider that our evidence could be presented otherwise than in open hearing. explicit language" in Sec. 307 (b), he said, to defeat the specific authority granted in Sec. 303 cited above. Sec. 307 (b) provides: In considering applications for licenses, and modifications and renewals thereof, when and insofar as there is demand for the same, the Commission shall make such distribution of licenses, frequencies, hours of operation, and of power among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each of the same. Mr. Cottone charged he could "advance more arguments" why rule-making will provide a more equitable allocation than not. Small cities would never get a chance to have a TV outlet if channels were not allocated, he pointed out, because big city money and knowhow would beat them to the draw. His brief on this point explained FCBA is correct that a specific assignment cannot be made without a proper application being filed for such an assignment, "but it is completely without foundation to state that Sec. 307 (b) prohibits the exercise of such rule making authority pursuant to Sees. 303 (d) and (f) of the Act, and requires the location of stations in any service to be determined solely on a caseto-case basis upon the consideration of individual applications." Mr. Cottone argued the legislative history of the statute supports FCC's position fully, and noted his brief contained considerable detail on this subject. FCC authority to reserve channels for noncommercial educational stations "is the same" as FCC's authority to specify special types of T e I e c s stations contained in Sec. 303, f contended. Respecting the controversy cj Sec. 307 (c) of the act as it rehi to educational reservation, Mr. ( 1 tone held there is nothing in le; I lative history indicating FCC dj| not have authority to reserve allocate educational facilities, said through Sec. 307 (c) Cong? only wanted to determine whet it should by statute either dii FCC to fix educational reservat or make such reservation itself. JCET Support Brig. Gen. Telford Taylor, behalf of the Joint Committee I Educational Television, also argi in detail that Sec. 307 (c) did I withdraw from the Commiss any power to make reservatic for education. He affirmed 1 Cottone's view that the section oi asked FCC's advice on whether make such reservation by statu He also held the legislative h tory upholds this view. As directed by Sec. 307 (c), Fi in 1935 told Congress in a spec report that no such statute yi needed at the time. Gen. Taylor's memorandum br: gave further details on the legisl tive history of Sec. 307 (c) answered the opposition of WKM Dearborn, Mich., on these issu*! He charged WKMH was "obligi to mis-describe" that statute in i petition in order to make its poir Gen. Taylor emphasized that t' educational reservation and fix* allocation issues are one and tl same, holding the terms "reserv tion" and "allocation" are inte changeable as in other services. Gen. Taylor contended the bas question is whether FCC will ket on exercising the same authoril' it has been exercising since 1927 Symour Krieger, JCET associal ! counsel, detailed how the issue ( ' allocation legality would affect tl" entire communication regulator field and noted fixed facilities fo education were first established b,rule, without opposition, as earln as 1938. Henry G. Fischer, arguing fo; the Board of Regents of the U. o„ New York State, which has pre! posed a state-wide educational T1 network, supported fully FCC position on allocation and reserva tion. He offered a detailed brie in support of this view, pointin; out no new questions were bein; considered which had not alread; been settled through 15 years o FCC administration and sustained in court. Richard S. Salant, appearing fo CBS, held FCC has full lega authority for its proposals. Hi! contended there is no legal differ ence between allocation^ and reser vation. Although there are some fea WANTED TV ANNOUNCER Send disc, photo, qualifications to WAAM, Baltimore 11, Md. sting • BROADCASTING