Broadcasting Telecasting (Oct-Dec 1963)

arguments next month, he said ("Broadcasting. Nov. 4). When all the facts are in the commission may reject a rulemaking, he said, but if it went ahead with one. that would be the proper time for Congress or the courts to review its action. Representative Rogers would have none of that. He said privately that he plans to call an executive session of the subcommittee as soon as possible and move toward reporting the bill to the full committee. ''In all fairness to the commission ... I think it's Congress's duty to act in this matter." he said. Waiting for an appeal to go through the courts could see some stations go bankrupt, he said. And stations might have a difficult time persuading the courts to overrule the FCC unless they could show the agency acted capriciously, the congressman said. Chairman Henry said the commission would not make a ruling that would be economically harmful to broadcasters. ' I believe we can come up with a clarification, possibly a rule, that 95% of our licensees could come up to right away." The licensees who came to Washington last week couldn't have disagreed with the chairman more. They said government regulation would amount to rate setting and would be impracticable and unworkable. The chairman argued that the commission has said all along that it did not believe one standard could apply to all stations, as some broadcasters said the commission intended. The commission is quite aware that exceptions and waivers may be necessary, he said. Broadcasters countered that so many exceptions would be needed that a ruling would be impossibly complicated to administer — and excessively costly, too — a point that made some of the economy-minded congressmen shudder. Representative J. Arthur Younger (RCalif.) said the agency had enough trouble trying to keep up with its present work load. To the argument that adoption of the NAB commercial codes would be a mistake. Chairman Henry said the commission has referred to the codes only as ''a realistic point of departure for our study." But it is quite obvious that even the commercial standards in these codes, worked out over many years by broadcasters themselves, are insufficient, for they are regularly exceeded by many subscribers, the FCC chairman said. "I don't see how we can continue to tell the industry and the public that overcommercialization is bad. but that we don't know what it is." Chairman Henry continued. Those opposing a rulemaking "do not quarrel with the commission's general policy on over commercialization as a matter of principle." Their objection, he said, '"is solely to the commission's proposal that its policy be made more specific and embodied in a rule." Representative James T. Broyhill (R-N.C), sponsor of a bill identical to Representative Rogers's, asked what the FCC's present standards on commercials are for license renewal. "I don't know," Chairman Henry replied. They have never been set down, but an unwritten standard has been passed down through the years and it has been continually relaxed, just as the NAB codes have relaxed. Chairman Henry said. He reported that the FCC's own analysis of station logs showed that 40% of 134 stations recently before the commission for renewal violated the NAB radio code limit of 18 minutes of commercial time in one or more hours. Of these, 64% were full time stations, 16% were daytimers. There were also examples of "highly profitable metropolitan stations which have broadcast 21 to 26 minutes of commercials in prime listening hours," the chairman said. The concern shown by the congressmen and Governor Collins about the FCC seeking to change the face of American broadcasting was amplified by Richard D. Smiley, owner of kxxl Bozeman. Mont., and president of the Montana Broadcasters Association. Mr. Smiley charged that the commission is "by design" taking over legislative duties from Congress and said some FCC officials "seem to be enamored by the idea of controlling the mass broadcast medium. When I say control, I mean absolute control." Representative Harris addressed this subject in a quiet, emotion-filled voice. "'There have been efforts made by the commission, different commissioners, I know for the last 20 years, to change things, to devise new ways to use a certain authority they have interpreted as given [to them]. . . . The Congress is not provoked to take action except under strained circumstances. But I recall that these circumstances developed and we came up with the McFarland acts . . ." which were "bitterly opposed" by commissioners because "it interferred and put some limitation on some of the actions taken by the commission." The acts "went too far." Representative Harris continued. "But that was because the Congress was provoked to take some action in view of what was being imposed on the industry itself." Similarly, he recalled, the commission tried to assume legislative authority by okaying a pay TV experiment in the 108 largest markets, but Congress resisted. He warned the commission, six of whose members were present at the congressional hearing (Commissioner Rosel H. Hyde was delivering a speech in Florida), that "in my judgment I think the commission should be exceedingly careful . . ." and should seek changes through "the regular, estab lished way. If the Congress and the general public feel that it is good policy and ought to be done . . . there are ways to get to it." The congressman also advised the commission not to give too much weight to complaints (Chairman Henry said the FCC had received about 2.500 complaints on commercials in the past year). He also said harsh rules could hurt the innocent and "I don't know if it is best to get at violators by penalizing everyone at once." Commissioner Lee Loevinger said enactment of the Rogers bill would also prevent the FCC from later requiring educational stations not to carry commercials. Chairman Henry denied charges that FCC's Max Paglin Chairman Henry Commission sticks to its planned action. BROADCASTING. November 11. 1963 43