fieldman and bringing him into Washington and then the man in Washington says, "This is not enough evidence, I need more." Then he has to send it back through channels. If you have a project attorney follow through on a case, that is an example. But, Senator Muskie, it seems to me, regardless of how much you streamline the procedure you can't get away from Governor Anderson's proposal that we simply must have more manpower. We are going to have to have it, and we have been stingy about it this last decade. I don't know whether to blame the Republican President or Democratic Congress, but between the two of them they have kept the appropriation close to an $8 million mark and they have not budged from it. Although the Procedure Act says that there shall be sufficient examiners hired to do thus and so, they can't hire any more than we give them money for. But in order to meet this situation, we are going to have to have more manpower.

The CHAIRMAN. Thank you, Senator Hruska.

Senator HRUSKA. Thank you for your courtesy and also for your tolerance.

The CHAIRMAN. Mr. Booth, come around, please. Have a seat and identify yourself for the record.

STATEMENT OF ROBERT M. BOOTH, JR., PRESIDENT, FEDERAL COMMUNICATIONS BAR ASSOCIATION

Mr. BOOTH. I am Robert M. Booth, Jr., an attorney, with offices at 1735 DeSales Street, NW., Washington 6, D.C. I appear as president of the Federal Communications Bar Association.

Mr. Chairman, I have a prepared statement which I handed to the committee staff.

The CHAIRMAN. Now, Mr. Booth, we have your statement. Would you like to have it inserted in the record in full and then comment on it and highlight your viewpoints or do you prefer to read your statement?

Mr. BOOTH. Whichever you think would be more expeditious and more useful to the committee.

The CHAIRMAN. I may say we have until 12 o'clock, which is some 28 minutes. All of that time is yours and I will leave it up to you as to how you want to use it. The reason I am saying that, the Senate will meet at 12, and I think we will want to be over there today, although we have permission to meet while the Senate is in session. Mr. BOOTH. Perhaps if I would go through the statement and enlarge upon it as I go it would be most helpful and then I would be glad to attempt to answer questions.

The CHAIRMAN. Very good.

Mr. BOOTH. My appearance in opposition to Reorganization Plan No. 2 of 1961 has been authorized by appropriate resolution approved unanimously by the executive committee of the association.

At the outset, I should like to emphasize that the Federal Communications Bar Association supports an improvement in the efficiency and procedures of the Federal Communications Commission. The association long has been concerned with undue delays in the processes of the Commission and has worked with the Congress, the Commission, and their staffs in efforts to expedite work of the Com

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mission. For example, the association has participated in a large number of congressional hearings over the past 25 years on communications and procedural proposals. When the Commission a few years ago revised part I of its rules relating to practices and procedures, the association actively assisted in the drafting of the revised rules. A year and a half ago, the association created four ad hoc committees to study the Commission's practices and procedures in the processsing of broadcast applications. I might say, Mr. Chairman, that the major delays of the Commission appear to be in the field of broadcasting.

The committees were composed of attorneys, consulting engineers, and members of the Commission's staff. To date, only a very few of the minor recommendations contained in the committee reports have been adopted by the Commission.

For more than 34 years, Congress has guided and supervised the communications facilities and services in this country, first through the Radio Act of 1927 and currently through the Communications Act of 1934 and its amendments. The Federal Communications Bar Association urges that Congress continue its guidance and supervision; however, Reorganization Plan No. 2 of 1961, for all practical purposes, would shift most of the responsibility for such guidance and supervision from Congress to the executive branch of our Government.

The association's opposition to Reorganization Plan No. 2 may be briefly summarized as follows:

1. The right to full and complete hearing would be abolished by elimination of the right of review upon request by an interested party. 2. Elimination of procedural rights including the right of review would materially increase the workload of the U.S. Court of Appeals for the District of Columbia.

I may say it is our view the proposal to eliminate the right of review would eliminate perhaps some work at one level of our Government system and shift it someplace else without adequate provision for the handling of the additional workload. This I do not believe would be a real savings.

3. The plan is so vague and indefinite that procedures which might or would be followed cannot be determined.

4. The concept of bipartisan Commission might be destroyed.

5. Most of the desired and worthwhile objectives can be achieved under present provisions of the Communications Act of 1934, as amended, and the Administrative Procedure Act.

Hearings before the Commission fall generally into two classes, adjudicatory and rulemaking. Adjudicatory hearings are held on applications for new stations, applications for modifications of facilities of existing stations, applications for renewal of licenses, show-cause orders and revocations. Section 409 (b) of the Communications Act now provides that following the issuance of an initial decision

*** the Commission shall permit the filing of exceptions to such initial decision by any party to the proceeding and shall, upon request, hear oral argument on such exceptions before the entry of any final decision, order, or requirement.

The reorganization plan would abolish the right to file exceptions to an initial decision, would abolish the right of oral argument before the Commission and would abolish the right of review and decision by the

Commission. In substitution of the right of an administrative appeal, section 1(b) of the plan merely would afford a party the right to petition the Commission for review which would be granted only if "a majority of the Commission, less one member thereof" agrees to accept the appeal. Not even the U.S. Court of Appeals for the District of Columbia Circuit may refuse to accept appeals from decisions of the Commission it does not care to consider.

We have had some discussion as to how these petitions for review would be submitted. Some of our members feel that the actual workload of the Commission in processing such petitions would be increased. First we would have to set forth in our petitions the basis of our request for review of the hearing examiner's decision. That request would have to be studied by someone, whether by the present staff or the review staff, whether by the legal assistants of each Commissioner, we don't know, but the work will still have to be done. Then if the review is granted, then we are right back where we started or where we are today. There will be filings of exceptions and reply exceptions and study by the staff. It seems to us that unless a plan is devised, and we don't know how it can be devised, to reduce the workload that actually this may increase the work and increase the workload of the Commission, and increase the delays of the Commission, rather than speeding up the process and reduce the work. That is what I mean when I said the plan is so vague and indefinite we just don't know what procedures will be followed.

The filing of exceptions to an initial decision is provided for by section 8(b) of the Administrative Procedure Act and section 409 (b) of the Communications Act and has proven extremely effective, particularly since the enactment of section 8(b) of the Administrative Procedure Act which requires that

The record shall show the ruling upon each such finding, conclusion, or exception presented."

I might say that that section 8(b) has been interpreted by the court and, as a result, the procedures followed are rather simple. They are well understood and have caused no difficulty in the last few years. The CHAIRMAN. That would be abolished?

Mr. BOOTH. Yes; it would be.

The CHAIRMAN. What would be the substitute for it?

Mr. BOOTH. Let me backtrack to this extent: We do not know whether or not the Reorganization Plan No. 2 would actually repeal the provisions of 8(b) of the Administrative Procedure Act. We have some members who feel that this, the reorganization plan, would repeal the provisions of 8(b) which I have just quoted. Some of us feel that it would not repeal and I touch upon that later on in my statement, not from the standpoint of taking the position that it will repeal or will not repeal, but merely that again it will produce litigation and until that litigation is concluded some 2 or 3 years hence, we just don't know where we will be. It is our position that we should not take the risk, but should spell out by legislation just what procedures are to be followed so that there will be no question when we get to court.

The importance of oral argument long has been recognized by the courts and by most, if not all, administrative agencies. The right of oral argument affords the administrator the opportunity to ask ques

tions and promotes confidence and respect in administrative decisions because the parties know that their views have been heard and carefully considered.

The Federal Communications Bar Association urges as strongly as possible the retention of at least one administrative appeal to the Commission in adjudicatory cases by submission of exceptions and the presentation of oral argument. Section 409 (b) of the Communications Act and its procedures and safeguards were adopted by Congress after extensive deliberation and should not be abolished as proposed in Reorganization Plan No. 2.

The necessity for the right of administrative appeal in rulemaking proceedings is equally important.

Section 402(b) of the Communications Act provides that appeals may be taken from decisions and orders of the Commission to the U.S. Court of Appeals for the District of Columbia Circuit in all adjudicatory hearings. The court is required to accept and consider all such appeals. Only a small percentage of adjudicatory hearings before the Commission ever reach the court. One reason is because the administrative appeal and review now provided by section 409 (b) of the Communications Act correct most errors in initial decisions.

Should the plan be adopted and an administrative review denied, the parties to an adjudicatory hearing would have no alternative but to appeal to the court for the correction of errors in an initial decision. The end result would be to shift the workload from the Commission to the court.

The CHAIRMAN. Does the Court hear them de novo?

Mr. BOOTH. No, the court would not hear them de novo, but there are decisions of the leading cases, Saginaw Broadcasting CompanyThe CHAIRMAN. The Commission can hear de novo?

Mr. BOOTH. The Commission can hear de novo, but the court cannot. It can only pass on errors of the Commission.

The CHAIRMAN. Then any applicant or litigant, if this goes into effect, having in mind the procedure that he would have to follow, would probably be more thorough in establishing its case to begin with?

Mr. Bоотн. I hardly think so, sir, because

The CHAIRMAN. Well, I assume he would start out and say, "Now I am so convinced about this if I don't get it, the kind of order I want from the hearing examiner, I certainly want to go on up to the court with it, and I certainly want to make as good a record as possible go to the court."

to

Mr. BOOTH. I am certain that is true, and I am certain in all of our hearings now

The CHAIRMAN. You are pointing out here now the probability of increasing the workload of the court because there is no intermediate source to which to appeal and thus you just are simply eliminating the tribunal now, the authority that gives a final decision or review and corrects mistakes, you are eliminating that and casting the burden to correct those mistakes on the court.

Mr. BOOTH. That is correct. That is our position.

The CHAIRMAN. So if I were representing a client and anticipated that I would have to go to the court where it couldn't be heard de novo, I would certainly spend more time with the examiner in making my case and making my record there.

Mr. BOOTH. I am quite certain that would be the effect and again it might have the effect of prolonging the hearing. On the other hand, it may eliminate to some extent the work to the Commission if it is presented this way.

The CHAIRMAN. I think it would eliminate some work of the Commission, but you or someone else said-maybe it was Senator Hruskayou are shifting work from one agency to another, from one place to another. In other words, are you eliminating or undertaking to eliminate here something that is vital and essential and something that will have to be done whether it is done by the Commission or by the court?

Mr. BOOTH. The answer is "Yes"; you are attempting to eliminate. The CHAIRMAN. That is your view?

Mr. BOOTH. Yes; that is my view.

The CHAIRMAN. Very well; all right, proceed.

Mr. BOOTH. The elimination of the right of at least one review by the Commission of initial decisions and rulemaking orders will not materially reduce the workload of the Commission or materially expedite the final disposition of cases. Only a relatively small percentage of a Commissioner's time is devoted to such matters.

In the testimony before the Communication Subcommittee of the Senate Commerce Committee-I believe that it was Commissioner Hyde, who explained that the Commissioners devote an average of about 5 hours a month to hearing oral argument on adjudicatory cases, and explained that that was not the cause of the workload of the Commission; that is, namely, the time that the Commissioners devote to these particular cases we are discussing.

At the present time in adjudicatory cases, the Commissioners receive a report from the review staff summarizing the facts and exceptions to the initial decision, hear oral argument which is limited to 20 minutes per party, and then vote to instruct the review staff to prepare the final decision. Oral argument seldom is held in rulemaking cases.

The latest annual report of the Office of Administrative Procedure, on page 40, shows the Federal Communications Commission was not overburdened during the 1959 fiscal year by the right of litigants to obtain review of initial decisions in adjudicatory proceedings. Fiscal year 1960 has not yet ended, so no later report is available. In fiscal year 1959, the report shows that 197 hearing cases were terminated. In 32, the Commission entered decisions on the merits after initial decisions had been released. That is only slightly more than one every 2 weeks. In 47 cases, the initial decisions became final without appeal and review. In 82 instances, there were defaults, consents, withdrawals, settlements, or other forms of termination agreements. There was some other form of final disposition in 36 cases.

In fiscal year 1958, on the other hand, a much larger percentage of initial decisions in adjudicatory cases were reviewed by the Commission. Out of 111 such cases disposed of during the year, 81 were decided by the Commission after review of the initial decision. In seven instances, initial decisions of examiners became final without review, and 23 cases were disposed of by defaults, consents, withdrawals, settlements or other forms of agreement. These figures demonstrate that the Commission has been able to improve its efficiency in handling adjudicatory matters without taking shortcuts and