Broadcasting Telecasting (Oct-Dec 1957)

GOVERNMENT continued FIVE FCC MEMBERS LIST SUBJECTS THEY'D LIKE MOULDER TO COVER • All hope Congress will clarify intent on Communications Act • Hyde, Ford withhold opinions; other commissioners speak up Although members of the FCC wear furrowed brows when they talk about the Moulder committee investigation (scheduled to get underway in January), the creases in their foreheads are not there solely because of dread anticipation. Most commissioners have views on what the committee can accomplish in squaring their activities with the facts of regulatory life. All of them have been giving much thought to these subjects (therefore the furrows), and they hope that out of the forthcoming inquiry may come some beneficial results. To determine what the commissioners would prefer to have the Moulder committee look into, Broadcasting interviewed all the commissioners. Each had certain ideas, although some were more extensive in their outlines than others. New Comr. Frederick W. Ford excused himself from expressing any opinion at this time. Comr. Rosel H. Hyde agreed he had a number of things on his mind but felt that he should not discuss them all at present. Basic attitude of the five commissioners is the hope that Congress will clarify the intent of the Communications Act and its amendments so that the FCC knows exactly what is meant. For example, it is no secret that there are a number of commissioners who believe that the no censorship provision of the Communications Act (Sec. 326) means that the Commission should have nothing at all to do about programming. But, there are others who feel, just as strongly, that the public interest, convenience and necessity clause of the Act (Sec. 307[a]) impels the Commission to look at programming. It is this sort of conflict in interpretation that virtually all commissioners agree should be clarified by an expression of Congressional intent. Here is a composite of the views of the five commissioners: • Protest rule (Sec. 309[a]). All the commissioners favor another Congressional look at this 1952 amendment to the Act. This section permits interested parties to file protests against grants made without a hearing. In too many instances, they feel, this provision has been abused. The law should be changed, it is felt, to give the Commission more discretion in establishing standing to protest and also the issues to be heard. It is felt that court interpretations have incorrectly opened the door for these abuses. • Economics. Congress should tell the FCC once and for all whether or not the competitive impact of a new station on an existing station should play a part in FCC deliberations. Only last March the Commission ruled that it had no power to take economic injury into account. Two commissioners, however, voted against this view. Page 88 • October 21, 1957 They were Comrs. Hyde and Robert T. Bartley. • Separation of functions. Virtually every commissioner couples this section of the Communications Act, also a 1952 amendment, with the word "ridiculous." The strict construction of this clause is an untenable position for the commissioners, it is felt. They cannot, some note, even ask their own general counsel for legal advice in an adversary proceeding. Several point out they may not even talk to examiners about legal or procedural problems in an attempt to speed up proceedings. One commissioner referred to the "exalted" position of examiners; another made the point that examiners can almost "make" a case for one applicant or another by the way they rule on procedural points and evidence. • Multiple ownership. Without specifying what they think should be the answer, four commissioners feel that some expression from Congress on what constitutes monopoly would be helpful. In some views, this is part of the larger, economic picture. It is coupled with the antitrust question by many of the commissioners and with the diversification issue by others. • Procedures. Here three commissioners feel that some of the requirements of due process tend to add red tape and delay the expeditious handling of applications. One commissioner expresses the thought that "too much due process" is the reason for the Commission's slow-moving activity, particularly in comparative cases. • Station sales. As of now the Commission has no alternative but to approve an application for the sale of a station if the buyer meets statutory qualifications. Three commissioners feel, however, that there ought to be some criteria on which to judge whether or not the transfers are in the public interest. There should be some way by which the FCC can control who the new owners are, one commissioner states. Another thinks there should be no limitation on the right to sell, but some sort of hearing might be required to insure some measure of local identity. • Spectrum jurisdiction. Two commissioners feel strongly that Congress should give primary concern to the question of the spectrum. Under the Communications Act, the President allocates the radio spectrum between government and non-government use. The FCC administers only that portion of the spectrum assigned to private use. While none expresses opposition to the idea of the President having supreme authority, it is considered an unworkable conflict that there is no single agency, or head, which exercises overall control. • Common carrier. Two commissioners are exceedingly articulate on the question of the Commission's policies regarding the use of common carrier facilities as against the mounting demands by private users to build and operate their own microwave systems. These are the major facets of the Commission's thinking about what Congress can do to clarify and interpret — and, if need be, change the Communications Act through legislation. Some of the commissioners are explicit and articulate. Chairman John C. Doerfer thinks there are two primary questions which have to be settled by Congress. The first is the question of administrative finality. The other is program review. The chairman called attention to the number of tv cases which have been made final by the Commission only to be reopened either by virtue of the provisions permitting petitions for reconsideration or by court order. It is the chairman's view that only if new evidence is noted or some significant oversight in the order or in the procedure is found should a final order be reconsidered. No court should be allowed to force the FCC to take into account a stockholder death or a stock transfer, after the final Commission action, Mr. Doerfer declared. The "no censorship" provisions of the Communications Act are hard to reconcile with the Commission's practice requiring a program review at renewal time, Mr. Doerfer feels. Stations should be required to maintain a log, Mr. Doerfer said, so that there is some record if a complaint is made or if a new application is made for the same facility — in the latter the program performance of an existing station might be weighed against the program proposals of the applicant, he points out. This is tied up, in the chairman's mind, with the license renewal terms. He still feels — as he has publicly stated — that licenses should be for an indeterminate term. Thus, he reasons, the program fare of an existing station would be of no consideration except when an application is made for the facility or if the Commission finds that a review of the station's stewardship is required. Close to Mr. Doerfer's heart is his vigorous belief that economics should play no part in the FCC's considerations. The Act, he points out, specifically states that broadcasting is not a common carrier service; therefore, he feels it is strictly private enterprise. He agrees, however, that there have been calls for economic protection. In fact, the courts have injected economics by making this one of the standards on which anyone — "newspaper or housewife," Mr. Doerfer holds — can file a protest and be assured of a hearing which serves no purpose but to delay a broadcast service to the public. In this sense, Mr. Doerfer is also eager to have Sec. 309(c) repealed or at least revised. Mr. Doerfer has an explicit program for straightening out the spectrum utilization problem. This is to have one authority (an agency like the Atomic Energy Commission) which would provide for both government and private use of the crowded spectrum. The President should still have the final power, Mr. Doerfer feels, but the present divided authority is not an efficient Broadcasting