Broadcasting Telecasting (Apr-Jun 1958)

terested parties, acceptance of loans and gifts, excessive fraternization and payment by industry of the travel expenses of some of the Commissioners and their wives. Certain conduct of some of the Commissioners in this regard indicates that they were insensitive to the requirements of their high office. In some instances, a strict interpretation of the provisions of the Federal Communications Act and the United States Criminal Code may lead to the conclusion that federal law has been violated. The decision whether such violations, if any, should be prosecuted must be left to the Dept. of Justice. In another section of the report, the subcommittee has recommended that the Communications Act be amended so as to make the provisions prohibiting ex parte contacts more stringent. This still leaves for consideration the question of how to deal with other aspects of personal conduct which have come under scrutiny in these hearings. The subcommittee feels that even the most detailed statutory provisions enacted by the Congress, or the most detailed code of ethics adopted by a commission, cannot avoid leaving areas of doubt — which must be resolved by those who are supposed to be governed by the code of ethics. Nevertheless, the subcommittee feels that there are two important advantages to be gained from a statutory requirement that the FCC adopt a code of ethics which shall be published in the Federal Register and which shall be revised periodically to keep apace with changing developments. These advantages are that (1) it will require the members of the Commission to consider carefully, and discuss with each other, what the particular provisions should be of the code of ethics, and (2) the publication of such a code in itself should have salutary effects. The subcommittee, therefore, recommends adoption of an amendment to the act requiring the Commission to adopt and to revise from time to time a code of ethics for members of the Commission and the Commission staff, as well as former members of the Commission and the Commission staff, designed to promote the observance of high ethical standards in matters related to activities of the Commission. The amendment would require publication of the code in the Federal Register. (2) Honorariums The hearing record before the subcommittee indicates that the provision in Sec. 4 (a) of the Communications Act of 1934 with regard to honorariums produced unfortunate and regrettable results which are not in the public interest. It appears that in some instances honorariums and compensation were accepted while at the same time per diem payments were collected from the Federal Government. Such a result does not appear to have been the intent of Congress when in 1952 it added by Public Law 554, 82d Congress, an exception to the prohibition of outside employment of Commissioners or staff members, so as to permit acceptance of a reasonable honorarium or compensation for the presentation or delivery of publications or papers. The original intent was to permit honorariums or compensation for the publication of technical books or the oral delivery of bona fide technical papers. However, there has grown up a practice of accepting honorariums or compensation for the delivery of goodwill speeches on the occasion of semisocial or promotional industry gatherings or the inauguration of radio and television stations or other affairs publicizing new industrial developments. This practice would appear to stretch the original intent considerably. The subcommittee recommends that the •"honorarium" provision be stricken from the Communications Act of 1934. (3) Ex parte contacts The Communications Act of 1934, as amended, contains prohibitions against ex parte contacts in cases of adjudication. Section 409 (c) (2) prohibits ex parte contacts on the part of any person who has participated in the presentation or preparation for presentation of such cases during hearings before an examiner or examiners or the Commission. The statute thus fails to reach ex parte contacts with Commissioners or the Commission staff by persons other than those who participated in the presentation or preparation for presentation of such case before the examiner or the Commission. The hearing record before the subcommittee on the ch. 10 case in Miami indicates that several ex parte contacts on behalf of two of the principal contenders for the license were made or attempted to be made both by persons who did and by persons who did not participate in the presentation or preparation for presentation of the case before the examiner. It is imperative that the Commission as well as the competing parties be protected by law from any attempt at influencing off the record the decision of the Commission. It is, therefore, the opinion of the subcommittee that section 409 (c) (2) should be amended for the following purposes: (1) To make the prohibition apply to ex parte contacts by any person, except certain Commission personnel; (2) to require that any Commissioner or staff member receiving an ex parte communication shall place such communication (or a memorandum stating the circumstances and substance of such communication if such communication was made orally) in the public record in the case; and (3) to provide that the secretary of the Commission shall transmit to each party a copy of such communication or memorandum. Any failure on the part of any Commissioner or staff member to comply with the provisions of this subsection would constitute misconduct of a character which would justify, if the seriousness of the offense warrants it, appropriate disciplinary action, dismissal, or removal. It is doubtful whether the law should be left in a state where ex parte contacts are ruled out in adjudicatory proceedings, while the implication is left that they are permissible in rulemaking proceedings even though formal hearings on the record are conducted by the Commission in such proceedings. It seems illogical, for example, to prohibit ex parte contacts in a case where an applicant seeks a television channel in a competitive proceeding but to let the law remain silent in a case of rulemaking where a television channel in a particular community may be added or deleted. However, the subcommittee is aware of the distinction which has been made traditionally between adjudicatory proceedings and rulemaking proceedings and it desires to study further through open hearings on this subject the question of whether the ban on ex parte contacts now limited to adjudicatory proceedings should be extended to rulemaking proceedings as well. (4) Removal of Commissioners The hearings held by the subcommittee thus far indicate the need for an appropriate amendment to the Communications Act of 1934 providing for the removal for cause of any member of the FCC Provisions authorizing the removal of members of independent regulatory agencies are contained in the organic acts of other such agencies. For example, the Federal Trade Commission Act, the Interstate Commerce Act, and the Civil Aeronautics Act provide that members of these agencies are removable by the President "for inefficiency, neglect of duty, or malfeasance in office." In order to guarantee the independence of independent regulatory agencies, the removal authority of the President with regard to any member of such agency should be expressed in language as clear and unambiguous as possible. Therefore, the subcommittee recommends that the Communications Act of 1934 be amended by providing that the President may remove any member of the Commission "for neglect of duty or malfeasance in office, and for no other cause." Broadcasting April 7, 1958 • Page