Variety radio directory (1939)

FEDERAL RADIO REGULATION— Continued is a matter of private concern between the City of Atlantic City and the Greater New York Broadcasting Corporation and does not require Commission consent or approval/' On June 21, 1939, the same reasoning had been applied to a proposed purchase of a station in Los Angeles, to be moved to San Diego but, since the procedure did not square with the new theory (although it had been expressly approved in previous decisions of the Commission), the "proposed decision" denied the application — to the discomfiture of the attorneys for the parties. It is interesting (but futile) to speculate how the Commission will henceforth dispose of transfers involving a change of site, frequency, power or hours of operation in the same city. C. REGULATION OF PROGRAM CONTENT STATUTORY PRESCRIPTIONS. If there is any one thing clearer than another in the Radio Act of 1927 and in the Communications Act of 1934, it is that Congress intended that the Commission should not have the power to regulate the contents of broadcast programs. Section 326 of the Communications Act, which cannot be too frequently repeated, provides in part : "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." If it be necessary to demonstrate that this language was intended to mean what it says, and that it should be construed in accordance with its intent, reference may be had to its legislative history and to the experience of the Federal Radio Commission and of the Federal Communications Commission in deviating from its mandate.* There are, it is true, certain express prohibitions in the Act. Section 326 forbids the utterance of "any obscene, indecent, or profane language by means of radio communication." Broadcasters must afford equal opportunity to legally qualified candidates for public office. The broadcasting of any lottery matter is forbidden. Announcements must be made of sponsored programs. Unauthorized rebroadcasting is prohibited. Violation of any of these provisions is made a criminal offense, punishable by heavy fine and imprisonment. A person charged with such a violation is entitled to a jury trial and to numerous other procedural guarantees and safeguards which are lacking in a proceeding on an application for renewal of license or a revocation-of-license proceeding before an administrative agency such as the Commission. Logic would seem to require that, before the Commission may take such an offense into account (if it is to do so at all), there should first be a conviction by a court of competent jurisdiction. Some doubt, however, is bred by Section 312(a) of the Act which authorizes the Commission to revoke a license "for violation of or failure to observe any of the restrictions and conditions of this Act," and, until the courts pass on the question, it remains uncertain whether the Commission itself is to determine the violation from the facts or whether it must await a conviction by a court. During the past year its * See Variety Radio Directory, I, pp. 290-293; ibid., II, 539-541; also articles by the writer Freedom of Speech and Radio Broadcasting (1935), 177 Annals of Amer. Acad. of Pol. & Soc. Sci. 179, and Comments on the Procedure of Federal Administrative1 Tribunals (1939), Geo. Wash. Law Rev., April, 1939. 939