Variety (Sep 1939)

Wednesdajt September 27, 1939 RADIO VARIETY 27 MAZE GETS WORSE PiVE FmiOflE Lack of Consistency Maddens Washington Radio Bar- risters—5ee Whole Regu- latory System Bogged Down — Courts Slow, Confusion Terrible Can't Stand Himself Richmond, Va., Sept. 26. Ira Avery, WRVA announcer j and writer, tried to lake a doze at home, but was .disturbed by radio going heair by. Called oUt insistently to 'cut that radio off; it annoys me.' He then found out that pro- gram he objected to was himself on a transcription. HOPE UNSIGHTED Washington, Sept. 26; Mounting dissatisfaction among broadcasting's legal kinfolk with the FCC administrative procedure has come to light recently with the Law Department, the Commish and the local Court of Appeals all the sub- ject of lively grumbling. Barristers are beginning to shake their heads dejectedly, on the point of abandon- ing hope for reforms which will pro- tect the rights of their clients and smooth the way to successful com- pletion of litigation. While the bulk of the lawyers all have some peeve, there still is not uniformity among the profession on the question of what is wrong and how serious the trouble is. On the whole, however, the barristers agree that there is a bewildering state of confusion that must be tackled some- time soon. Virtually the only bit of optimism discernible among the barristers is the hope that William J. Dempsey, FCC chief counsel, and his key aides will recognize the problem and take a hand in trying to find a solution. Generally, the lawyers seem to- feel that Dempsey is sympathetic and conscientious, although here and there members of the profession are inclined to yell al>out him as an in- dividual. Chance Dldnt? The stream-lined procedure, adopt- ed last winter following execution of the examining department and put in operation during the spring, so far has not been thoroughly tested, the more conservative legal gentry point Out. Several prominent prac- titioners maintain, thpugh, that what little experience, has been observed does not offer any ground for an- ticipating salutary changes. Despite the reluctance to make a. definite appraisal of the procedure, there is pretty widespread opinion that the anticipated benefits — confidently forecast by Frank C. McNinch on a couple of occasions—have not ma- ter.-ilizcd to date. Most howling at the moment is provoked by the handliiig"df"the"me)~ tions docket When this adjunct was created, following long lobbying by the Communications Bar Associa- tion, there was considerable glee among the fraternity. Advocates of the idea thought delays would be re- duced, chances of stalling and using obstructionist tactics cut materially and uniformity in handling cases brought about. Now there are mounting complaints that the system is anything but beneficial, with liti- gants uncertain of their rights and the lawyers themselves perplexed at)out how to enforce what they think are the rights of parties. Trouble is of immediate and im- portant concern to station operators and would-be recruits to the in- dustry. For the dollars and cents cost of running an enterprise must include a liberal estimate for legal talent and the bill is bound to grow larger as the legal complexities in- crease. Furthermore, barristers are handicapped when it. comes to advis- ing clients and the way things are running at the FCC means a feeling of constant jeopardy. Ordinarily in circumstances such as these, the; profession would fall back on the Courts for aid. But the District of Columbia Court of Ap- peals appears to be on something of « sit-down strike, with some hoary cases still undecieded after many months of deliberation. Latest check of the Law Department calendar shows over 30 cases in the judiciary's hands somewhere. Of the total, 27 are before the Court of Appeals, which is the most immediate um- pire in rows between the industry and the regulators. Three are on the way to the Supreme Court, with a fourth row still in the District Court. The mo.st important issue compli- cating settlement of many matters is that of 'economic interference.' With the FCC taking the stand that existing stations cannot oppose coni- i petition merely because of fancied loss of business, the regulators so far have refused to observe the rulings of the Court of Appeals. In the face of a sharp rebuke at the hands of Justice Justin Miller, Dempsey and his legal assistants are trying to get a reversal of position and conse- quently are seeking to delay some other cases, barristers protest. The 'economic interference' matter is more vital than ever under the revised administrative technique. Under the new rules there no longer is any such thing as a 'respondent' in a routine proceeding. Formerly, the Commish made a party to every case all existing license-holders and other applicants for facilities whose fate might be affected by filing of any request. It was an automatic incident in the prosecution of appli- cations. The speeded-up procedure merely allows 'interveners' to take part, and the right to intervene de- pends on how the Commish feels. Rotation N. S. G. Here's the rub and the reason for a lot of charnping at the bit in many tar-flung, villages jjid towns.. The motions to intervene are heard by a Commissiooei:—different one presid- ing each month, which is possibly a large part of the trouble—who is not bound by precedent. One month, requests to intervene may be granted liberally, but it would be a different story a month or two later. An immediate sideline of this worry is the way some of the Com- missioners have refused to fret about such a thing as consistency. It is an exceedingly rare jewel among the FCC, the legal crowd verdicts. There have been such spectacles as grant- ing a motion to intervene and then denying a request that the issues of the case be broadened to include the particular point the intervener wants to make. Rulings which particularly infuriate a good many barristers are denials-of-the right-to-inte£vene,-with the explanation that the Commish ■attorneys and engineers will safe- guard the interests of the would-be intervenor and take care of all angles in nursing the public interest. I Slight encouragement was reflected I last week after the Law Department revealed similar concern atKiut the monkey wrenches in the works. Under direct orders from the Chief Counsel, hearing on motions was at- tended by one of the most intimate coterie, William Koplowitz, who kept an eye on the proceedings with the view to building up a body of prece- dents. Complaints registered at over-the-highbalLs sessions finally ' reached the front office. Dempsey I was pictured as equally anxious to set up a consistent policy, cutting down both confusion in the frater- nity and giving the FCC legal staff a I definite idea of how to handle mat- I ters. It is just as tough on the Com- ! mish lawyers as on the outsiders when the members sitting over mo- tions rule in contradicting ways. Kqplpwitz is expected to keep a log and in the future, whenever a com- parable proposition comes up, to ad- 1 vise the sitting Commissioner what I has been done in the past. This may I save money for the broadcasters. I Way things have been going, some I lawyers bleat sorrowfully they can- not tell whether they are parties to I a case or not until the hearing takes ! place. There is that much indecision ' at the motions sessions, and the I granting of intervention pleas with- out widening the issues rnakes every- thing so much worse. All this legal hand-standing might be ended by the Court of Appeals, which has slapped the FCC down on many occasions in the past year. No matter who wins, almost every opinion is. helpful in that it provides a yardstick of sorts and has the effect of circumscribing the regulators' power. But if the man wielding the gavel at the motions docket is too sympathetic to parties wanting to broaden the scope of hearings, get more time to prepare, intervene in defense of some mythical right or nightmarish alarm, and take endless of depositions, the dilatory tactics which the Commish sought to wipe out will be more effective than ever. In. defense of the Commish, rules of the Courts and the recently- modified procedural system should be kept in mind. There is no dispo- sition to stall on appealed decisions, friends of the genei-al counsel con- tend, and the lawyers never have registered any organized protest about the mechanical troubles. The Communication law and Court rules allow 30 days in which to send up the record in an appealed case. This means the original of every document must be forwarded to the judges—for use in case they want to make a detailed inspection, which most barristers agree seldom hap- pens. The documents not only are numerous but are very valuable, and a duplicate would be needed, in many instances. Clerical burden obviously cannot be disregarded. Therefore. Deinpsey and his crew have followed the practice ot. not sending up the papers in cases where they feel there is some justification for a motion to dismiss. Because if the court isn't going to ponder the case on the basis of the notice of appeal and support- ing brief, there is no reason for put- ting litigants to a considerable ex- pense (sometimes well over $1,000) to print the. past proceiedings. This .inspiration broke when the WLW (Cincinnati) case was up. with many pounds of testimony, exhibits, and argument involved. Also, it was pointed out. Chief Justice D. Law- rence, .Grpjv^r _anarled about the waste involved in printing papers which never were riffled by the judges. The newest set of rule.';, adopted quietly during the summer .and still unpublished (although a master copy The Millenium Philadelphia, Sept. 26. Meet the ideal sponsor—the Koppers Coke. Since Sept. 1, when Hit- ler's minions marched Into Po- land, this firm has requested that its news broadcasts over WDAS be aired sans commercials. 'It doesn't seem right,' said ah official of the company, 'to break into news that's shaking tha world with a blurb about our product I' Marvels Interpret' Esso Sponsored News Just Ahead, On WBT, N. C. Charlotte, N. C, Sept. 26. With the time change here on Sun- day (24) WBT instituted what it be- lieves to be a new departure In. news program handling when it aired its commentator, William Winter, on a news analysis program for Marvel cigarettes in a tie-in with the regu- lar. Esso news aircast. Commentator Winter, will follow the five-minute Esso programs nightly at 10:30 o'clock with a 10-minute analysis for Marvels on the news just aired. This is believed to be the first pro- gram where a commentator, follows a regular news program with an analysis and the first time any other sponsor has tied in with Esso on newscasting. The program was set at 10:30 to get the jump on stations who air news, at 11 o'clock. U.P. news serv- ice is out by 10:30, thus affording 10:30 aircasts same news as that used on 11 o'clock programs. DepL Stores Set Pinocchio'; WiD Serve As Test Bloom ingdale's, N. Y. , and Lit Bros., Philadelphia, are employing a transcription series of the kid classic 'Pinocchio' for the pre-Christmas ballyhoo. Window displays, audi- torium and toy department tie-ups are in line. The main idea, it ap- pear.*;, is not to sell any particular product, but to create traffic into the stores. Similar deals are pending in Cleveland, Hartford, Youngstown, Richmond and Washington. Department stores are high among' radio's 'missing clients' as a rule and there will be considerable watching and checking on this experiment. Bloomingdale's has done some spot blurbing, but never before sponsored an entertainment. 'Pinocchio' series was cut in Holly- wood by Edward Sloman, former film director. The second Walt Dis- ney cartoon feature, 'Pinocchio,' Is due for release around Xmas time. FOOTBAU NAY NOT BE SPONSORED BY BEER is available for inspection at FCC offices), went into effect Sept.- 1. In making changes in last winter's manual, the FCC consulted fre- quently with the lawyers, who have not made any organized request for more copy-reading. The latest over- hauling took into account various suggestions from Frank Roberson, Bar Association bead, and the rules committee. Follow-Up Comment .Continued from page 2C_ gram swelling beyond the confines of 'neutrality,' there were confer- ences between the program auspices and NBC. The net edited result was iimocence itself. The war songs never developed greater pertinence to the Allies' past or present struggle with Germany than the offhand play- ing of 'Tlie Stars and Stripes For- ever.' Unless 'Hot Time in the Old Town Tonight,' relic of Cut>an-days,- nught be considered as stirring up the Spaniards, the only 'pointed* item in the hour was Uncle Ezra (Pat Barrett) cracking about every- body favoring a widening of the At- lantic Ocean. For the most part the program was good rural Americana; lively, un- pretentious and sure of its aim. The Maple City Four did 'Old Man Mc- Donald' in literally breathless tempo. The Hoosier Hot Shots made the hayloft echo and the Vass Family rendered with authentic artistry a song-story of one mountain love with a happy ending. A boy singer and a gal singer, Bobby Hastings and Lucille Long, had solo sessions and Joe Parsons leaned forward for the deep notes and made the mike quiver with his basso. It was a sure-footed low D ri.ght on the schnozzola. Alec Templeton, who will be sponsored hereafter on his own Alka- Seltzer program, was previewed. His gem for the occasion was a spoof on Walter Damrosch, explain- ing to the children, line by line, the significance of- 'The Three, Little Fishies.* Ifwas delicious. Without changing his act one gag since he originated it back in 1918, that doughljoy monologist with the high-pitched whine was a logical booking in salute to the American Legion. The studio audience laughed loudly not in surprise but In affec- tionate memory for the jokes. For the benefit of this year's graduating Class, the person's name is Johnny Burke. Nobody remembers what he did before he memorized the jokes about the draft, the seasick soldiers and the cooties and made them his life's work. Colombia Workshop went slightly less pretentious for its last Thurs- day's (21) installment, offering an amusing batch of whimsy that Ar- thur Kober, specialist in Bronxese, had delivered per assignment. Ko- ber's tale, 'Now It's Summer,' made -a- sharply etched character study of a pedagog who suddenly discovers that he has missed the brighter shades of life and developed into a stodgy, irritable recluse. Kober pitched his most tasty bits of dialog in the scenes which take place on a park bench where the instructor of physics becomes ac- quainted with a young dame whose philosophy and salty Bronx patois do much to produce a sharp change in the man's personality. Carl Svenson proved aces-up in the pedagog role and Ann Shepard as the dame on the bench disclosed plenty of talent. Another smart piece of acting was turned in by Jimmy Donnelly as the class day- dreamer whose one and only thoii.iiht was to get out there in the park and take a smack at a baseball. St. Louis, Sept 26. Illinois, Missouri, St. Louis and Washington Universities have banned beer, liquor and ciggie sponsors of football broadcasts. At Missouri the faculty chooses the stations that may broadcast and then slaps on a fee of $100 per game. The privilege at St. Louis and Washington, both here, is cutlo although the schools reserve the ri.ght to select the stations. At Illinois the tap is $50 for sustaining programs aiid time and one-half for commercially sponsored programs which brings it up to approxiinately $300 per hour for the larger stations. WEW, owned and operated by St. Louis U, will broadcast a dozen games, 10 of which will be played by Washington ; and the others by St. L. U. In addition to broadcasting Missouri, Washington and St. Ix>uis games KXOK will air two games played at Urbana. KWK will broad- cast three games at Columbia in ad- dition to local games and those at Evanston, III., Tulsa. Okla., and Des Moines, la. WIL will cover all home games of St. Louis and Washingtoa and probably will go out of town to cover these two schools. KMOX and KSD' are arranging their gridiron skcd and all of the stations are seek- ing sponsors for these broadcasts. Blondeirs Waxed 'Lady To Rosenbloom's 'Mu£:g* Hollywood, Sept. 28. Disc.'; of the Joan Blondell-Maxie Kosenbloom half hour comedy turn, 'The Lady and the Mugg,' have been shipped east for agency inspec- tion. Freddie Berrens orchestra is in the music spot. Ted Sherdeman produced the audi- tion at NBC for Jack Pomeroy. Ar- thur Jones and Charles Marion scripted the sample. Tommy Dorsey's Raleigh - Kooi program dropped off last Wednesday (20), after three years, with a well balanced all-request program includ- ing some of the band's best arrange- ments, past and present. Band it- self came over swell, reflecting more than its usual amount of punch and enthusiasm because of the excellence of the numbers selected. Standout was Dean KIncaid's scoring of Victor Herbert's 'March of the Toys.' with Sy Oliver's arrange- ment of 'Truckin,' one of the 'Marie' cycle with vocal background by the band, following close. Jack Leonard slipped in clicks on 'You Taught Me to Love Again' and 'Old Folks' and Edythe Wright did 'You're a Sweet- heart' and 'All Those in Favor Say Aye.* Dorsey's trombone breaks in 'Toys' and 'Once In a While" were somp*n. j Myron Fox's Title Salt Lake City, Sept. 26. Myron Fox is now program direc- ! tor of KDYL, of which S. S. Fox, his father, is president and general I manager. It's the local NBC affili- I ate. Son replaces Ted Kimball, re- . signed, to join staff of KSL. New to KDYL mike duties are ; Carl Christopher, of San Franci.sco, i and Emerson Smith from Los An- j gcle.>;. I Al Priddy has also resigned from . KDYL. RogtT White's Sideline Roger White, radio producer. Is going into the agency biz as a side- line, representing performers and authors. Kermit K. Schafer s han- dling that end. Tec' Cott. production director, and Thornton Steele, musical director,' joined White this week. i \ ■I [