NAB reports (Jan-Dec 1941)

The instant petition, filed July IS, 1941 — eight days before the date set for the hearing — requests the Commission to vacate its Orders No. 79 and 79-A on the ground that the Commission lacks authority to conduct proceedings of the type contemplated by the Order. Our jurisdiction to issue Order No. 79 and Order No. 79-A was carefully considered prior to the promulgation of those orders. It seems inconceivable to us that an argument could be seriously ad¬ vanced against the inherent power of any administrative agency, endowed by statute with power to hold hearings, issue subpoenas, etc., to conduct general hearings of the type involved here. One of the principal reasons for the establishment of administrative agen¬ cies is the expertness which such agencies are expected to develop in the administration of difficult and complicated matters. If problems involved in the regulation of an agency are complex enough to induce Congress to establish an administrative agency to administer them, it would seem unlikely that Congress would limit its useful¬ ness by denying to it the power to hold general hearings for the purpose of acquainting itself with the problems of the industry and the best solution therefor. Such an intention is not to be imputed to Congress unless the statute creating the agency ex¬ plicitly so provides. But our jurisdiction does not rest alone on this inherent power of administrative agencies. The Communications Act explicitly confers on us the power to conduct such proceedings as that involved in Orders 79 and 79-A. Section 403 of the Act provides: “The Commission shall have full authority and power at any time to institute an inquiry, on its own motion, in any case and as to any matter or thing concerning which com¬ plaint is authorized to be made, to or before the Commission by any provision of this Act, or concerning which any question may arise under any of the provisions of this Act, or relating to the enforcement of any of the provisions of this Act.” (Italics supplied.) In the administration of Section 309 of the Act, authorizing the Commission to grant or deny applications for station licenses, the question whether the public interest, convenience, and necessity is served by the granting of a license to new'spaper interests has arisen from time to time. (e.g. Port Huron Broadcasting Co., S F.C.C. 177; Dorrance D. Roderick, 3 F.C.C. 616, 5 F,C.C. 563; The South Bend Tribune, 6 F.C.C. 783; Barnes & Weiland et al. F.C.C. (Decided April IS, 1940.)) With the recent advent of frequency modulation (FM) broad¬ casting, this question has taken on an increased importance. Out of 116 applications for FM licenses 45, filed by newspaper interests, confront the Commission with the necessity of deter¬ mining whether or not the granting of FM licenses to such interests will serve the public interest, convenience or necessity. The Com¬ mission’s duty to act upon these applications for licenses carries with it the duty to determine the qualifications of the applicants. Under Section 309 each of these applications would have to be set for hearing if the Commission could not determine from the examination thereof that public interest, convenience or necessity would be served by a grant. To deny the Commission the power to institute a general inquiry into the same matter under Section 403, as urged by petitioner, would deprive Section 403 of all meaning, and would lead to the unreasonable result that we are empowered to hold scores of particular hearings in order to arrive at a determination of policy but are not empowered to hold one general inquiry for the same purpose. The power conferred by Section 403, and the further power conferred by Section 4(j) to conduct proceedings “in such manner as will best conduce to the proper dispatch of business and to the ends of justice” were hardly intended to impose such a procedural straitjacket on the Commission. The Commission’s authority under Section 403 to institute the proceedings covered by Orders 79 and 79-.\ is not, moreover, limited to matters arising under Section 309. .\n inquiry may be authorized as to “any matter” concerning which “any ques¬ tion” may arise under “any of the provisions of this Act.” Thus the issues to be examined pursuant to Order No. 79 may be broad enough to include subjects concerning which the Com¬ mission may wish to consider recommending additional legisla¬ tion in its annual report to Congress, as directed by Section 4(k) of the Act. Even if the questions arising under Order No. 79 and 79-A were not clearly matters arising under Section 309, the Commission could conduct such a general inquiry preliminary to determining whether to make recommendations to Congress for additional legislation. The instant petition appears to be less concerned with Order No. 79 and Order No. 79-A than with some possible regulations, the precise nature of which petitioner does not state, which it fears the Commission may promulgate at some future date. It would certainly not be conducive to the proper dispatch of busi¬ ness to permit petitioner at this time to argue the validity of purely suppositious regulations which may or may not be pro¬ mulgated after the hearings are closed. If at the close of the hearings we do determine that the public interest makes regula¬ tions necessary or advisable, our procedure allows ample oppor¬ tunity to argue the validity or invalidity of such regulations at that time. It Is Ordered, this 23rd day of July, 1941, that the petition filed by American Newspaper Publishers Association to vacate Commission Order No. 79 and 79-A Be, and It Is, Hereby Denied. Federal Communications Commission. In opening the hearings, Mr. Fly said he “should like to comment briefly on two or three matters.” He said: “The general question of joint control over newspapers and broadcasting stations has been a topic of interest, both in Congress and elsewhere, for a long time. When the Radio Act of 1927 was being debated, for example, Senator Dill, the Senate sponsor of the bill, pointed out the need for deciding such questions as whether one newspaper in a city should have a radio station when other newspapers do not, and urged that such questions indicated the need for a federal commission to regulate broadcasting. (67 Cong. Rec. 12353, June 30, 1926.) There was discussion of newspaper ownership of broadcasting stations before the Senate Committee on Interstate Commerce in January, 1930, at which time Senators Wheeler, Dill, and Brookhart indicated an awareness of the problem. (Hearings before the Senate Committee on Interstate Commerce on S. 6, 71st Cong., 2nd sess., pp. 1643, 1718, 1744, 2077,) Senator Neeley expressed opinions on the subject in Jan¬ uary, 1935, during the Hearings on the Confirmation of the Mem¬ bers of the Federal Communications Commission (74th Cong. 1st sess., p. 195). Representative Monaghan expressed outspoken opposition to newspaper ownership of broadcasting stations in August, 1935i. (79 Cong. Rec. 14310-14316.) On January 28, 1937, Representative Wearin introduced H.R. 3892, entitled ‘A Bill to amend the Communications Act of 1934 by adding thereto pro¬ visions designed to prohibit unified and monopolistic control of broadcasting facilities and printed publications, and for other purposes,’ “On March 15, 1937, Senator White commented at some length on newspaper ownership of radio stations, in the course of which he suggested that the Commission ought to formulate views on the subject. He said in part: ‘If the Commission senses the situation, and if it has views as to what our policy should be, it has skill¬ fully concealed the fact from Congress.’ (81 Cong. Rec. 23342335.) “The importance which has thus been continuously attached to the problem and the further fact that the Commission is now faced with a group of newspaper applications for FM facilities, have caused us to conclude that a general inquiry is advisable. Out of 99 applicants for FM licenses as of June 30th, 43 are newspaper interests. These newspaper applications raise the common question of the extent to which and the circumstances in which grants to newspapers will serve the public interest. We could, of course, have considered the question separately as to each of the 43 appli¬ cants. The proper dispatch of business, however, as well as the need to achieve that degree of uniformity, consistency, and informed judgment properly expected of administrative bodies, clearly indi¬ cate the advisability of these general hearings. “I would like particularly to emphasize that the purpose of these hearings is to inform the Commission. No conclusions or opinions have been formulated by the Commission. The facts and cir¬ cumstances vyhich will be developed in these hearings may lead us to the conclusion that no rules or policies whatsoever need to be developed. Or they may lead us to the conclusion that recom¬ mendations to Congress should be made, and the problem handled by way of legislation. Or we may conclude that certain policies or regulations can and should be developed within the jurisdiction already committed to us by Congress. “The Commission believes that discussion of its jurisdiction under existing law to take action with respect to joint control of newspapers and radio stations would be premature at this time. The jurisdictional question itself must be determined partly in the light of the facts and circumstances which the hearings develop, and argument should be based on concrete rather than supposi July 25, 1941 — 625