Broadcasting Telecasting (Apr-Jun 1958)

GOVERNMENT continued Harris won't take 'no' for an answer Rep. Orcn Harris (D-Ark.), chairman of the House Legislative Oversight Subcommittee, last week denied a request by WHDH-TV-floi/0/7 Herald-Traveler to quash a subcommittee subpoena for the newspaper-station records — in no uncertain terms. The request came in a strongly-worded letter from attorney William Dempsey of WHDH-TV, owned by the Herald-Traveler. Mr. Dempsey maintained that a subcommittee investigator, Francis X. McLaughlin, had acted improperly and that the subcommittee's request was irrelevant and unconstitutional under the Fourth Amendment. Mr. Harris' immediate reply last Monday, during hearings on the ch. 2 Springfield, 111., grant to WMAY-TV: "The committee has no intention of withdrawing any subpoena at all. . . . The committee will not tolerate any undue and unnecessary and such arbitrary moves designed to prevent the committee from obtaining information that it is justified in receiving." He said that several other subpoenas have been issued in connection with an investigation of the grant of ch. 5 to WHDH-TV and "there seemed to be some reluctance on the part of those who have the information to permit the staff to obtain it." Following Mr. Dempsey's Monday letter to Rep. Harris and the congressman's subsequent statement, a meeting was held Tuesday between WHDH-TV counsel and the subcommittee. Rep. Harris again rejected a WHDH-TV request that the subpoena be dismissed. It was served May 20 and called for compliance by May 26. Specifically, the subpoena seeks all information about telephone calls and trips made by Herald-Traveler personnel to Washington and several other points since January 1955. The hotly-contested grant, currently the subject of a court appeal, long had been rumored as one the subcommittee would look into in its investigation of the FCC. Last week's flare-up was the first public confirmation that such an inquiry is underway. In his letter to Rep. Harris, Mr. Dempsey stated: "As you are well aware, your committee's activities have been plagued and persons victimized by smears in slanted news stories and columns based on leaks from members of your staff. To turn over files and records which have no relevance to the committee's function to your staff under these conditions would be as foolish as it would be craven." Mr. Dempsey specifically took exception to the following alleged actions by Mr. McLaughlin, who was accompanied to Boston by staff investigator Joseph P. O'Hara Jr.: He did not tell WHDH-TV the subcommittee's purpose in seeking admittance to its records and those of the Herald-Traveler. He said the subcommittee was interested only in the company's stock transfer records and left instructions with the telephone company that WHDH-TVHerald-Traveler was to be denied access to long distance toll slips. He sought to interview WHDH-TV President Robert Choate, who also is the Herald-Traveler publisher, and refused to submit in advance a list of proposed questions. Mr. Dempsey said it is "difficult to concerning the adjudicatory hearing for ch. 2 . . ." in previous testimony. He expressed "amazement" that it had not been pointed out to the subcommittee that the grant was made to WMAY by a 5-1 vote, with Comr. John C. Doerfer being the dissenter. He said the hearing examiner, Millard French, was trying his first tv case and "had no background whatsoever in the field of communications." The examiner's decision failed to cover all the facts, Mr. Sherman said, while the Commission's decision did, making "inevitable a grant to us." He strongly denied WMA^-TV "had changed its position overnight" on deintermixture, contending it had fought to the end to retain ch. 2. Mr. Lishman took sharp issue with this point and questioned the witness at length on various pleadings filed by WMAY-TV with the FCC and courts. Mr. Lishman entered into the record a January 1958 letter from Springfield Mayor Nelson Howarth to Mr. Keller expressing concern over WMAY-TV's alleged lack of effort to retain ch. 2. A condition placed on WMAY-TV's receiving a grant for ch. 36 was that it not Page 66 • June 2, 1958 fight for retention of ch. 2 in the courts, Mr. Sherman contended. He said for this reason, and on advice of counsel, WMAYTV did not appeal to the courts the FCC's shift of ch. 2. Mr. Sherman told of attempts to consummate a merger with the Sangamon interests even after WMAY-TV had secured the grant. He denied this was a move to cause Sangamon to relinquish its legal rights to continue its appeal of the grant. WMAY-TV has not abandoned plans to go on the air, Mr. Sherman maintained, and has been actively seeking a network affiliation. He said that if WMAY-TV was to be stuck with a uhf channel, it preferred ch. 36 because used equipment for that channel could be purchased from General Electric. Under questioning by Rep. John Moss (D-Calif.), Mr. Sherman admitted the equipment in question was formerly used by KTVI when that station operated on ch. 36. The witness further stated that Messrs. Peltason and Tenenbaum visited him in Springfield in the spring of 1956 and the KTVI owners told him ch. 2 would be shifted to St. Louis. reconcile" Mr. McLaughlin's action regarding the telephone calls "with any proper, or indeed with any honest, investigatory purpose." He said it is obvious the telephone calls deal with "matters completely unrelated" to the subcommittee's stated purpose. "The legal question involved," Mr. Dempsey stated, "is whether the Fourth Amendment to the U. S. Constitution which safeguards the private affairs of citizens from prying by the government applies as a limitation on the investigatory powers of congressional committees." The WHDH-TV attorney then cited several Supreme Court decisions which he said "demonstrate your subpoena to be completely invalid." In a memorandum prepared for Rep. Harris, investigators McLaughlin and O'Hara emphatically denied the charges made by Mr. Dempsey. The Choate questions were not put in writing, they stated, on the instructions of the subcommittee chairman and chief counsel. Also under instructions of the chief counsel the subcommittee denied WHDH-TV use of the toll slips, which also had been subpoenaed, until it had answered the original subpoena. Messrs. McLaughlin and O'Hara maintained that they advised Mr. Choate and other WHDH-TV principals that the subcommittee was making a full investigation of the ch. 5 grant and denied Mr. McLaughlin stated that only stock transfers were of interest. In denying to dismiss the subpoena or accede to writing out questions in advance, Rep. Harris stated the subcommittee could not be told how to conduct its inquiry. Mr. Sherman said that he, in the company of Richard Cohen, had met with Mr. Hodge on three occasions. He denied, however, that any WMAY-TV stockholder ever asked Mr. Hodge to intercede and that he personally had no knowledge of any steps taken by Mr. Hodge. When asked whose idea it was to bring Mr. Hall into the case, Mr. Sherman replied he did not know the prominent Republican was "in on it." Mr. Cohen testified that he asked Mr. Hodge for "advice" on what WMAY-TV could do to counteract the "strong political position" of Sangamon. He denied, however, that he asked Mr. Hodge to intervene in any way personally or to talk to members of Congress or the FCC. Mr. Hodge, according to Mr. Angland, stated that Richard Cohen asked him to contact the Illinois congressional delegation. Mr. Cohen testified Mr. Hodge never told him what, if anything, he had done on behalf of WMAY-TV's application. He said Mr. Hodge only stated: "I'm your bookkeeper. I'm working for you." Rep. Moss told the witness he was a "very naive young man" to think that, when Mr. Hodge asked for all the details relating to the case, the Broadcasting