Variety radio directory (1937)

FEDERAL RADIO REGULATION— Continued time it is broadcast, be announced as paid for or furnished, as the case may be, by the person paying for it. No broadcast station may rebroadcast the program or any part thereof of another broadcast station without the express authority of the originating station. There are also provisions in the Act having to do with distress signals, and unauthorized publication of communications which need not be summarized. This brings us to a consideration of the Commission's power to legislate or adjudicate on the program service of broadcast stations under the standard of public interest, convenience or necessity. There is no more interestinjg or elusive problem raised by the Act than this. We may begin with a prohibition contained in the Act which, because of its importance, will be quoted verbatim. ''Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication." Chiefly, if not entirely, as a result of this prohibition against censorship, the Commission has not legislated on the subject of the program service of broadcast stations. Save for exceptions which may readily be distinguished, its regulations contain nothing of this sort. The exceptions have to do with such matters as the required keeping of program logs (specifically authorized by the Act), periodical announcements of the call letters and location of the station, and announcements to be made in connection with broadcasting of phonograph records, electrical transcriptions and other mechanical reproductions and rebroadcasts. The Commission's self-restraint has extended to advertising as well as programs ; its regulations contain nothing by way of limitation on the amount or character of advertising. It and its predecessor commission have repeatedly held that because of the statutory prohibition against censorship, it does not have the power to make any such regulations. Paradoxically, the Commission has taken the position that it may take such matters into account in the exercise of its judicial powers, that is, in granting or denying applications under the standard of public interest, convenience or necessity. When it is remembered that the same phrase governs both its legislative and its judicial powers, its position is difficult to justify. From the point of view of the applicant (and of the public, as well), it would seem preferable that, if the Commission is to exercise such control, it do so by regulations which would at least afford a measure of certainty as to the rules with which the applicant is expected to comply. The legislative history of the prohibition against censorship seems to show that it was enacted by Congress with the distinct understanding that the Act gave the Commission no authority to censor programs in any way, either by regulations, or by Government scrutiny prior to release, or by ex post facto judgment; and that the phrase "public interest, convenience or necessity" did not carry with it any such power of censorship. In my opinion, this statement cannot be made with the same degree of confidence with regard to the Commission's power to make regulations with regard to the permissible amount or character of advertising ; it may be that it has such power (although it denies that it has), but the question need not be debated here. In any event, the Commission's position that it may regulate both program service and advertising through the ex post facto process of decisions on applications has been upheld by 291