Lapas attēli
PDF
ePub

without depriving parties of their basic right to a full and complete hearing.

The association's executive, legislative, and practice and procedure committees have studied Reorganization Plan No. 2 in detail in the 3 weeks since it was forwarded to Congress. The more we study the plan, the more confused we become. We have no idea as to how the plan would operate or what rules and procedures the Commission would adopt. In effect, the plan gives the Commission a blank check without imposing ceilings or limitations.

There is no need for following the blank check procedure. The Communications Act now provides ample authority for the Commission to improve its procedures. Substantial improvement has been made in the past year and further improvements are expected momentarily. And on this I am very sincere. A great deal has been accomplished in the last year, for example, a recent action of the Commission to expedite their procedures, the delegation to the Chief Hearing Examiner of authority to pass upon certain petitions to enlarge the issues in hearing orders. That was delegated just a few weeks ago. To those of us who practice before the Commission, we are certain that that will help expedite the hearing process. That I cite as an example of one of many things which can be done, some of which were pointed out in these ad hoc committee reports I referred to at the early part of my statement.

The principal delays in the processes of the Commission have arisen from the Commission's own procedures. As previously noted, our association initiated and participated in a comprehensive study of the Commission's handling of broadcast applications and submitted reports containing specific recommendations which have not yet been adopted. The association stands ready to assist in further studies. Should the plan be adopted, improvements in the Commission's processes and procedures would depend entirely upon the rules adopted. The Commission already has ample authority to adopt the rules necessary to bring about the required improvements.

And again I submit that the Commission already has ample authority under the act and legislation as now enacted to adopt the rules necessary to bring about the required improvements.

The legislative history of the Communications Act establishes that Congress intended to establish a bipartisan board of seven Commissioners with equal responsibilities in the exercise of the Commission's functions except for the special duties of the Chairman as set forth in section 5(a). With this limited exception, no Commissioner was given a position superior to that of others in the carrying out of the Commission's work. The right of the Chairman in his sole discretion to determine the particular personnel, including Commissioners, to carry out delegated functions is one of considerable, not negligible, importance. It could be determinative of the decision of the Commission in particular cases. The right to designate personnel becomes particularly critical in view of the plan's express provision that the decision of the delegate would be final in every instance, subject only to a discretionary review by the Commission.

At present, all Commissioners have an equal voice with the Chairman in the designation of personnel to carry out the responsibilities and functions of the Commission. All should have an equal voice

in the determination of Commission policy, particularly in these days of expanding technology of communications. This equality would be lost to a very large extent under the plan.

Some of the association's members have serious doubts as to the legality of the plan. The filing of exceptions in adjudicatory proceedings is provided for by section 409 (b) of the Communications Act and by section 8(b) of the Administrative Procedure Act. Section 12 of the Administrative Procedure Act provides:

*** No subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly ***.

Reorganization Plan No. 2 does refer to section 7(a) of the Administrative Procedure Act, which provides for the conduct of hearings, but does not mention section 8(b). Question has been raised as to whether the Reorganization Act of 1949 provides for such a general and sweeping plan.

The association has not had time in the 3 short weeks since the plan was submitted to Congress to study thoroughly the question of legality. We do not say that the plan is illegal but merely point out the possibility to illustrate the need for careful study and consideration by Congress.

There is one statement in the plan which says that it does not repeal the provisions of section 7(a) of the Administrative Procedure Act concerning hearings on this.

The CHAIRMAN. But if it does not repeal, that implication would be that it does repeal somewhere else, where it conflicts; is that right? Mr. BOOTH. We think that may be the interpretation placed upon court appeals and there is a good possibility that the court would so hold.

The CHAIRMAN. I mean there is a danger there. I wouldn't say it would or wouldn't be. The argument probably would be made, since it specifically exempts or states this particular section or provision is not repealed, the application would be that it did intend, possibly, to repeal others, not specifically mentioned.

Mr. BOOTH. Yes; sir, and we are certain that would be presented to the court.

The CHAIRMAN. You could make a good argument that way as to what was intended.

Mr. BOOTH. I think as a lawyer I could make a pretty good argument. I don't know whether the court would buy it.

The CHAIRMAN. I don't know either. The problem is it is not easy to legislate in areas that are as complicated as this, but Congress has the duty, I think, in legislation, to try to make its intent known either by the express provisions of the law or certainly by history accompanying its actions and the courts ought to respect that intent where such intent is made known. We are not certain how this will be interpreted. That is what you are pleading now; we don't know what it means, we can't tell, it is vague, it is uncertain. It isn't possible, of course, for us to reach perfection in legislation, but in consideration of it in the process of legislating, it is the duty imposed upon us, as I see it, to try to make clear our intent.

Mr. BOOTH. There is some question in my mind and in the mind of some of our members, and again we have not studied it in detail because

of the time available, but there is some question in my mind as to whether or not the transcript and record of hearings such as this would be considered as legislative history in the sense that hearings on specific pieces of legislation are considered as legislative history because you may not have any action taken by Congress and therefore by not acting can you say that Congress, the Senate or the House, has adopted the recommendations of the committees or the views as expanded in the testimony before the committees and in the committee reports and again we just don't know.

The CHAIRMAN. That, of course, is the problem encountered by legislative reorganization plans procedurewise.

It is not a very good idea. The reorganization plan procedure is not a very good idea in the first place. The Government apparently became so big, so complicated in administrative workload of Government that it reached the point where there was need to expedite the work of different agencies and I remember the first reorganization bill that was presented. I made the tail of the political machine then. I opposed it back in about 1936 or 1937. I don't remember whether I was in the House, but in my vigor in support of what I thought was the Constitution-I condemned some aspects of the plan very critically and that didn't ingratiate me into the favor of members of the powers that existed. I am perfectly willing to support reorganization plans under the present Reorganization Act, where one House of Congress, by a majority of votes, can veto a plan. I have never gone along with anything less than that. I do feel that to legislate in this fashion, at least by acquiesence, both Houses should consent. It is not a good way to legislate, but it becomes almost a necessity in the growth of Government and workload of the executive branch of the Congress, so you need to proceed with some caution and I am very sympathetic with the plan and I would rather find reasons to support it than oppose it. At the same time, quite frequently these things are thought out far ahead, more so than by us, and when they come to us we ought to give them the scrutiny that is expected of the legislative body in enacting laws and that is what we are trying to do. I have no prejudice against any of these and I may support some of them.

Mr. BOOTH. I think that is true, also, of course, of our association, Mr. Chairman. We are not critical of that basic objective of the act. We agree that since there is provision for review by Congress and disapproval by either the House or Senate that the safeguards are provided.

The CHAIRMAN. I can see no reason why you, representing the group you do, should not want just that which is most fair and equitable because if a procedure is adopted here or a power delegated that can be abused, it may abuse one of your clients, as well as another, or favor one as well as another and that isn't what you seek; you seek uniformity of equity and justice in administration of the law.

Mr. BOOTH. We are concerned far more than just our client's welfare, Mr. Chairman. Of course radio and television broadcasting is a very, very important part of our lives and our Nation and our growth, just as the freedom of the press and newspapers, and we feel that any legislation, any provisions, any procedures which may either

directly or indirectly have an effect of modifying the job which the radio and television stations can do or the controls which might be placed over them should be very, very carefully considered by Congress when considering specific legislation, rather than what I have termed "blank check" procedures such as are proposed here.

The CHAIRMAN. All right, you may proceed.

As previously noted, the plan provides for divisions or boards of commissioners. The plan also would abolish the review staff provided for by section 5(c) of the Communications Act, and would assign the staff's functions to the Commissioners. There may be considerable merit to each of these proposals. The association recommends that any such changes be considered in the form of proposals to amend the Communications Act. The work of Congress should not be set aside without more careful and thorough consideration by Congress after appropriate hearings.

There has been some legislation introduced recently by Chairman Harris and the Federal Communications Commission working on legislation to submit, also at the request

The CHAIRMAN. They oppose them for different reasons.

Mr. BOOTH. Yes, we have a different approach to it, sir. There is no doubt but that the Commission's procedures can be improved so

as to

relieve the Commissioners from the necessity of dealing with many matters of lesser importance and thus conserve their time for the consideration of major matters of policy and planning—

which is the objective stated by President Kennedy. The Federal Communications Bar Association most firmly believes the stated objective can and should be achieved within the framework of the Communications Act and the Administrative Procedure Act. The association stands ready, willing, and able to assist the President, the Congress, and the Commission in achieving the objectives of Reorganization Plan No. 2 by appropriate legislation.

The association appreciates the opportunity to appear before this committee and stands ready to assist in any way possible.

The CHAIRMAN. Thank you, Mr. Booth.

Senator Muskie, any questions or comments?

Senator MUSKIE. No questions.

The CHAIRMAN. Thank you very much for your presentation. I think you have raised some thoughts and points which we shall surely consider.

We have one witness scheduled to be heard this afternoon and we have arranged to held this hearing in the Office of the Secretary of the Senate, right off the floor, at 2 o'clock. We will be having the hearing there. So you will let the witnesses know.

Thank you very much.

The committee stands in recess until 2 o'clock.

(Whereupon, at 12 noon, the committee recessed until 2 p.m. the same day.)

AFTERNOON SESSION

The CHAIRMAN. The committee will come to order.

Mr. Boyd, will you identify yourself for the record, please, sir?

Mr. BOYD. Yes, Mr. Chairman, I am Alan Boyd, Chairman of the Civil Aeronautics Board. I am accompanied today by Mr. John Warner, General Counsel of the Civil Aeronautics Board.

The CHAIRMAN. John Warner?

Mr. BOYD. Yes, sir.

The CHAIRMAN. All right.

Mr. BOYD. And Mr. Ross Newman, Associate General Counsel of the Civil Aeronautics Board.

The CHAIRMAN. Very good. All right, do you have a prepared statement, Mr. Chairman

Mr. BOYD. Yes, sir.

The CHAIRMAN. Would you wish to submit it for the record and let it be printed in the record in full at this point and highlight it, or do you prefer to read it?

Mr. BOYD. I would prefer to read it, if it is all right with you, sir. It is a rather short statement.

The CHAIRMAN. Very well. You may proceed with your statement.

STATEMENT OF ALAN S. BOYD, CHAIRMAN, CIVIL AERONAUTICS BOARD, ACCOMPANIED BY JOHN WARNER, GENERAL COUNSEL, AND ROSS NEWMAN, ASSOCIATE GENERAL COUNSEL, CIVIL AERONAUTICS BOARD

Mr. BOYD. We appreciate very much being able to appear and testify in support of Reorganization Plan No. 3.

Section 1 of Reorganization Plan No. 3, would authorize the Board to delegate any of its functions to a division of the Board, an individual Board member, a hearing examiner, or an employee or employee board. Such delegation would be subject to a discretionary right of review by the Board upon its own initiative or upon the petition of any party or intervener within such time and in such manner as the Board by rule shall prescribe. The vote of a majority of the Board less one member would be sufficient to bring any such action before the Board for review.

The CHAIRMAN. How many members are on the Board?
Mr. BOYD. Five members, sir.

The CHAIRMAN. That would be two members.

Mr. BOYD. Nothing in the plan shall be deemed to supersede the provisions of section 7(a) of the Administrative Procedure Act.

Section 2 would transfer from the Board to the Chairman the functions of the Board with respect to the assignment of Board personnel, including Board members, to perform such functions as may have been delegated by the Board to Board personnel, including Board members, pursuant to section 1 of the plan.

During the past several years, one of the most serious problems confronting the Board has been the delay in our administrative proOn numerous occasions, we have testified before committees of Congress on this subject, stating that ways and means must be found to expedite the handling of the Board's workload.

cess.

As this committee is aware, the increased workload thrust upon the Board by the rapid growth of the air transportation industry has been very substantial. In this connection, I would like to point out that during the past 20 years, air transportation has progressed from

« iepriekšējāTurpināt »