Broadcasting Telecasting (Jan-Mar 1960)

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BROADCASTING THE BUSINESSWEEKLY OF TELEVISION AND RADIO February 1, 1960 Vol. 58 No. 5 BRAVE CRY FOR FREEDOM— ALMOST Says NAB: the constitution keeps FCC out of programming, but not quite as far out as the NAB used to think it did The NAB's 12-year "keep out of programming" concept to limit the FCC's authority was softened last week. In retreating from its traditional position, enunciated in 1947 by then President Justin Miller, the NAB offered a new philosophy — the test of public responsibility. This doctrine was unveiled Jan. 26 at the Commission's continuing hearing into its own regulatory power. It immediately ran into conflict as President Harold E. Fellows and Whitney North Seymour, NAB's two witnesses, discussed the doctrine's significance during the Commission cross-examination (see excerpts from cross-examination of Mr. Fellows, page 34). Surprised Commissioners tried to find out if the idea means industry agreement with the theory the FCC has a right to enforce program standards. It does not, judging by a study of the verbal fireworks that developed during cross-examination. Analysis of the question-answer exchanges, however, shows that the Miller doctrine no longer stands as the association's philosophy of FCC regulatory powers. Chief Difference • The principal difference in NAB's position is this: NAB now says the FCC can take some cognizance of the licensee's evaluation of his community needs and whether he has lived up to his promises. A new concept of license renewal procedure was offered by the association. This consists of a basic memorandum or narrative filing at renewal time instead of the present statistical form containing program percentage tables. Mr. Fellows said these tables are construed by many licensees as a "whip" requiring them to follow program category policies. Mr. Seymour, a noted constitutional lawyer and member of the New York law firm of Simpson, Thacher & Bartlett, represented NAB as special counsel on constitutional powers of the FCC. He submitted formal testimony dealing with the limitations placed on FCC regulatory powers by the First Amendment and Sec. 326 of the Communications Act. In extensive cross-examination he didn't budge from his basic position that the FCC cannot censor broadcasting and must stay out of programming unless a licensee shows bad faith gravely reflecting on his character. He insisted the FCC can't take away a station's license "because of some belief the station is not serving community needs." Legal Precedent • The formal testimony by Mr. Seymour, who is president-elect of the American Bar Assn. and chairman of the ABA's Bar Media Committee looking into the right of HOW MAJOR BROADCASTERS WANT TO BE REGULATED The FCC saw itself through the eyes of major broadcasting units last week as its sweeping inquiry into its own powers neared completion. In four days of gamut-ranging testimony dealing with its regulatory authority the Commission: • Watched the NAB back up from its once firm stand against any Commission dabbling in station and network progamming (see story above). • Heard NBC advocate an FCC "standard of reasonableness" in program control (see story page 42). • And CBS oppose enlargement of federal regulation, announce new advertiser ground rules and favor greater opportunity for public participation in programming (page 43). • Received views of Westinghouse Broadcasting Co. and other witnesses on public service and regulation (page 46). • Caught a Broadcast Music Inc. charge that American Guild of Authors & Composers was talking through ASCAP's teeth when it claimed BMI was corrupting the nation with broadcaster-owned music (page 50). Today (Feb. 1) the Commission is to hear Leonard H. Goldenson, president of American BroadcastingParamount Theatres, state the ABC network's position. NAB's Fellows NAB's Seymour NBC's Sarnoff CBS' Stanton WBC's McGannon BROADCASTING, February 1, 1960 31