result-all of which are time consuming. In addition, with seven Commissioners writing opinions, there is a possibility that they will not always have the time for the extensive research necessary to base their opinions as solidly on past precedent as the review staff now does, since that staff is comprised of experts who spend full time in this field and do nothing else.

I realize only too well that the sentiment outside the Commission is overwhelmingly in favor of having the Commissioners write their opinions and the tide may well be too strong to buck. However, it must be remembered that we are not a judicial body in the true sense of the word but are quasi-judicial, quasi-administrative, and quasi-legislative, so the rules that apply to us should be designed to fit our unique operations rather than having us conform to rules designed for general application, or for others, regardless of how they fit us. For example, the wide range of the Commission's activities makes it highly desirable to have engineers, accountants, broadcasters, communicators, and lawyers as members of the Commission instead of having only lawyers, which means that under a strict interpretation of the reorganization plan there will be nonlawyers writing legal opinions. Moreover, despite any notions to the contrary, Commissioners are extremely busy people and handle a great amount of business moneywise as well as volumewise. (I have heard it said that a Commissioner handles more business moneywise in a year than the average Federal judge handles in a lifetime.) Accordingly, for these reasons, and primarily in the interest of more production and consequently less backlog, I would prefer to see us retain the review staff. However, I believe that my fears in this regard can be overcome within the framework of the reorganization plan, i.e., a Commissioner who is assigned a particular case would avail himself of the review staff (or the same people under a different name, if desired) who would write up the case in draft form with the assistance of the Commissioner's legal assistant. Then the Commissioner would review the draft in detail, correct it as he deemed necessary, sign it, and submit it to his colleagues for approval. It is my understanding that this procedure, while not exactly in accordance with a strict interpretation of the President's reorganization plan, would not violate it. Actually, I think this procedure would not reduce our overall output materially and would strengthen our opinions and orders because it is only reasonable to assume that any Commissioner who was personally signing an opinion and order would take considerable care to insure its correctness in every respect. Moreover, I feel reasonably certain that by its own internal procedures, the Commission can adopt this type of procedure under the reorganization plan. Consequently, on this basis I am prepared to accept the abolition of the review

staff.

In sum, I personally support the President's reorganization plan for the Federal Communications Commission. I hasten to point out, however, that the views I have expressed here are my own personal views and should not be considered as being the views of the Commission.

The CHAIRMAN. Do you have any further comments you wish to make as representative of these three?

Mr. GELLER. The only comment I would like to make is that Commissioner Craven has not put in any written statement, but merely wishes to have the record show he fully supports the Chairman of the Commission in his remarks, and goes along with the statements of the Chairman, which are here and will be filed with the record. The CHAIRMAN. Who is the Chairman?

Mr. GELLER. Newton N. Minow.

The CHAIRMAN. All right. Very good. Then these two statements will be printed in the record at this point.

All right, Mr. Cahill.

Mr. CAHILL. I have four statements to be presented for the record. The first is the statement of Commissioner Hyde, the second is the statement of Commissioner Bartley, the third is the statement of Commissioner Lee, and the fourth is Commissioner Ford's statement. The CHAIRMAN. Those four statements of the Commissioners you named may be printed in the record at this point. They will be followed by memorandums concerning current review practices of the Federal Communications Commission and contemplated practices if

Reorganization Plan No. 2 becomes effective, and a memorandum relative to the effect of section 7(a) of the Administrative Procedure Act of 1946, as amended, on agency procedures, currently and if plan No. 2 becomes effective.

(The prepared statements of Commissioners Hyde, Bartley, Lee, and Ford and the other materials are as follows:)

STATEMENT OF ROSEL H. HYDE, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION RE REORGANIZATION PLAN NO. 2 OF 1961

The Federal Communications Commission which was created in 1934 is the successor to the Federal Radio Commission which was created by Congress in 1927 to perform certain regulatory and licensing functions with respect to the use of radio, and especially to exercise broad policymaking authority which The conCongress delegated to it as an independent agency of Government. siderations which persuaded Congress to establish a nonpartisan independent commission are succinctly stated in the following excerpt from the report of the Senate Committee on Interstate Commerce, May 6, 1926, 69th Congress, first session, Report No. 772:

"After the consideration of the facts given your committee at the hearings, the committee decided that the importance of radio and particularly the probable influence it will develop to be in the social, political, and economic life of the American people, and the many new and complex problems its administration presents, demand that Congress establish an entirely independent body to take charge of the regulation of radio communication in all its forms.

"The exercise of this power is fraught with such great possibilities that it should not be entrusted to any one man nor to any administrative department of the Government. This regulatory power should be as free from political influence or arbitrary control as possible."

These considerations are valid today. What has happened since 1926 gives them even greater significance. Television is just one of the new services developed since 1926, and its potential is still not by any means fully appreciated. We are on the threshold of the development of space communication techniques which are expected to give worldwide dimensions to matters previously thought of in terms of national or continental interest. During the existence of the Federal Radio Commission and the Federal Communications Commission, there have been many Commissioners appointed with varied educational and experience qualifications who have contributed to the functioning of the agency. Some of them have been interested in one form of communications more than another. All, in my judgment, have contributed through exchange of viewpoints and development of particular interests to a balancing of relevant factors in the development of communications policy.

I believe that this approach to regulation and to development of communications policy adopted by Congress in 1927 and reaffirmed by Congress in 1934 would be overruled if Reorganization Plan No. 2 of 1961 is permitted to become operative. I believe that implementation of the plan would in effect shift the regulation of interstate and foreign communications and the development of policy from an independent commission type of agency to a single administrator under the aegis of an executive-overseer, although still maintaining the form of an independent commission.

The stated purpose of plan No. 2 is to provide greater flexibility in the handling of business before the Commission, permitting its disposition at different levels so as better to promote its efficient disposition. This is not a new concept. The Commission is now authorized by section 5(d) of the Communications Act to delegate matters not involving hearings to an individual Commissioner, to Commissioners, or to bodies composed of one or more employees. Extensive use has been made of this power to delegate. The great bulk of the Commission's examining, regulating, and licensing functions are now performed under delegations from the Commission. During the month of April just past, more than 32,000 authorizations were issued under delegated power by the Safety and Special Radio Services Bureau. Other bureaus are likewise authorized to dispose of a tremendous load of casework not involving hearings.

The reorganization plan would add matters involving hearings to those which may be delegated for final disposition. At the same time, and I think very significantly, it places the delegations previously made by the Commission as such and those now proposed to be made within the control of the Chairman. In

providing for the delegation of hearing work for final disposition, the plan also undertakes to abolish the legal right of oral argument before the Commission provided for in section 309 (b) of the Communications Act.

Under Reorganization Plan No. 2, section 1, authority to delegate is treated in terms of a grant to the Commission. But this grant must, of course, be considered in connection with section 2, which provides for the transfer from the Commission to the Chairman of the Commission the functions of the Commission with respect to the assignment of Commission personnel, including Commissioners, to perform such functions as may have been delegated by the Commission to Commission personnel, including Commissioners, pursuant to section 1 of this reorganization plan.

Section 2 would authorize the Chairman without consultation with other members to choose and assign personnel as he might see fit to process the matters which have been delegated. The great bulk of the Commission's workload having been placed under delegations, the Chairman would be in position to control the disposition of the same. The only choice left to other Commissioners would be to cancel the delegations, an impossible choice because it would mean halting application processing which, in turn, could have unfortunate results, particularly in the safety services.

Insofar as new delegations are concerned, the individual Commissioners could be placed in the position of either accepting the Chairman's assignment of personnel, or refusing to agree to delegations. This means acquiesce in the wishes of the Chairman, or vote to deprive the agency of any advantages that might be in the proposed delegation.

I would respectfully suggest that rather than accept Reorganization Plan No. 2, that Congress give consideration to legislation granting the Commission greater flexibility in the management of its hearing work. I am certain this could be accomplished without bringing about the profound changes in the organization and the relationship of the Commission to Congress inherent in the reorganization plan.

Hon. JOHN L. MCCLELLAN,

FEDERAL COMMUNICATIONS COMMISSION,
Washington, D.C., May 4, 1961.

Chairman, Committee on Government Operations,
U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: Responsive to your letter of May 3 with respect to Reorganization Plan No. 2 transmitted by the President on April 27, 1961, it is my opinion that the plan should be rejected.

The Constitution places the regulation of commerce in the Congress. Section 2 of the proposed plan could be employed, I believe, to shift the regulation of interstate and foreign communications from an independent commission to the executive branch of our Government. Whether this power would be exercised is not the question.

The proposed plan raises in my mind the basic question whether we are to have communications regulated by a bipartisan independent commission or by an administrator. I have grave doubt that the bipartisan nature of the Commission can be effectively preserved by the mere opportunity for a majority less one to require review of a delegated action. I perceive the possibility would be created for reducing the function of the six other Commissioners to almost that of scribes.

This is not to say that the Communications Act of 1934, as amended, does not need the attention of Congress. Required procedures are such that much of our time is spent in spinning our wheels in "undue process.' Some of the objectives of the plan are most desirable. I believe, however, the objectives should be accomplished through direct legislative amendment.

Sincerely yours,

ROBERT T. BARTLEY, Commissioner.

STATEMENT OF ROBERT E. LEE, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION, ON REORGANIZATION PLAN No. 2 OF 1961

I am opposed to Reorganization Plan No. 2 of 1961. Although I agree with some of the fundamental objectives of the plan, I feel that these objectives can be attained better through amendment of the Communications Act following

legislative hearings. In this connection, I have reference to the area that would give the Commission a greater amount of latitude in handling its internal administrative procedures.

I am afraid that section 1 of the plan now before you would leave us in a never-never-land insofar as our hearing procedures are concerned. This is not to say that I am unwilling to delegate functions because I have acquiesced in such delegations in the past and I am willing to delegate more functions in the future. I am uncertain, however, just what effect section 1 of the plan will have on the existing provisions of section 409 of the Communications Act of 1934, as amended.

My primary concern arises out of section 2 of the reorganization plan. This, it seems to me, strikes at the basic philosophy underlying the structure of the Communications Act. As you know, this section withdraws from the Commission the functioning of assigning personnel and makes an absolute grant of this function to the Chairman. There are no exceptions to this grant of authority. The Chairman's word would be absolute to the point that we would have authority to assign all Commission personnel, including Commissioners and the personal staff of the several Commissioners.

In my study of the proposal before you, I reviewed the hearings on Reorganization Plan No. 11 of 1950. The latter plan bears some similarity to Reorganization Plan No. 2 of 1961, although it did not seem to go as far as the current reorganization plan appears to do.

In reviewing the 1950 hearing record, I was particularly impressed with the testimony of former Senator Edwin C. Johnson, of Colorado, in opposition to the plan. His testimony is set forth in the transcript of "Hearings before the Committee on Expenditures in the Executive Department, U.S. Senate, 81st Congress, Second Session, on Senate Resolutions 253, 254, 255 and 256,” which were held on April 24, 25, and 26, 1950. I feel that the following quotation from his testimony (transcript p. 16) is a propos:

"It is the long-established congressional policy that regulatory agencies must be independent and directly responsible to Congress.

"The necessity of maintaining the independency of regulatory bodies was discussed during the Senate debate in 1938 on the Government departments reorganization bill, a legislative culmination of a professional study of Government and how to reorganize it. In that debate former Senator Champ Clark, of Missouri, one of the Senate's greatest students of parliamentary history, now one of our really great judges on the Federal bench, pointed out that the 'principal functions of such commissions as the Interstate Commerce Commission, the Federal Trade Commission, and the Communications Commission are as agencies of the legislative branch of the Government and as extensions of the legislative power' and that 'the important function which has been conferred on such commissions is the ascertainment of particular facts in order to carry out a policy of Congress enunciated in a statute' and 'they are legislative rather than executive or administrative in character.'

"Many of these statements are direct quotes of Mr. Clark.

"Senator Barkley, the then majority leader and now our distinguished Vice President, stated during the debate that he 'would not approve any measure which provided for a one-man Interstate Commerce Commission, or a one-man Communications Commission, or a one-man Federal Trade Commission, or a one-man Power Commission, because those Commissions are agencies set up by Congress in the performance of the duty of Congress to regulate commerce among the States.'

"Senator Barkley, now our Vice President, said:

"They are quasi-judicial and quasi-legislative. They are quite different from a commission which is created merely to aid the President in determining how he shall perform his executive duty of appointing people to office, in the way of testing their qualifications (for instance, the Civil Service Commission). One is an executive function, the others are legislative and judicial, and the only reason why the Interstate Commerce Commission was set up, and why the Federal Trade Commission, and the Power Commission, and the Communications Commission, were set up under the authority to regulate commerce among the States and with foreign governments, was the knowledge that Congress itself could not do that.

"But plan No. 7 does just exactly what Vice President Barkley said he would never approve. It makes the ICC a one-man agency, just as plans Nos. 8, 9, and 11 make one-man agencies of the Trade, Power, and Communications Commissions."

I am certain that Senator Johnson would view the reorganization plan before you as being equally repugnant.

At this point I would like to digress for a moment to make it abundantly clear that I have no concern that the current Chairman would in any way abuse any delegated power, whether that power was delegated to him by the Commission or by the law. On the contrary, the Chairman has indicated a very understanding desire to work as a team with the full Commission. Laws, however, are not made for men but for the public interest and, in my opinion, the approval of section 2 of Reorganization Plan No. 2 of 1961 would open this door to wide abuse on the part of an ambitious or an unscrupulous chairman. A concrete example or two will demonstrate my concern.

The Chairman could assign me to duties away from the Commission's offices for an extended period and thereby affect the result of a decision on an important policy question.

He could assign members of my personal staff to duties which would deprive me of their services during periods when they would be required to assist me in analyzing highly technical engineering and legal matters.

He could assign me to a special project, such as for example the subscription television case, that would take all of my time to the detriment of my other work.

In

Through the assignment of staff personnel to special projects, he could achieve a predetermined result insofar as a staff recommendation is concerned. this connection, the psychological effect on the staff of making one Commissioner so much more powerful than the others cannot be ignored. The staff will be quick to recognize who is supreme and will react accordingly. They would be less than human if they did not.

These are the practical difficulties I have with Reorganization Plan No. 2 of 1961.

I appreciate the opportunity to express my opinion on this matter and should you require anything further I would be most happy to oblige.

STATEMENT OF FREDERICK W. FORD, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION, ON REORGANIZATION PLAN No. 2 OF 1961

I. INTRODUCTION

My name is Frederick W. Ford. I have been a member of the Commission since 1957 and served as its chairman for almost a year. I also served on the staff of the Commission in the Opinion Writing Section, now called the Review Section, and later as Chief of its Hearing Division from early 1947 until late 1953. I appear here today to present my personal views on Reorganization Plan No. 2 of 1961, providing for reorganization in the Federal Communications Commission.

I am in agreement with the President's stated objectives in submitting Plan No. 2 to provide, “* * * for greater flexibility in the handling of the business before the Commission, permitting its disposition at different levels so as better to promote its efficient dispatch." and of relieving "*** 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."

I am also in agreement with the House Committee on Government Operations in its Report No. 195, 87th Congress, 1st session, recommending extension of the Reorganization Act of 1949 when it stated at page 2 that, "Criticisms have been made and the committee has been concerned with the tendency of the Executive to draft reorganization plans in general terms so that the full scope of the reorganization is not always readily apparent from the contents of the plans as presented." This statement is particularly true of the plan now before you. It will be necessary, therefore, for me to analyze in some detail the provisions of plan No. 2 in an effort to assist the committee in reaching a conclusion on its merits.

In order to understand the effect of this plan, it is desirable to review the present statutory authority of the Commission and its Chairman, and compare that authority with the delegations contained in the plan and the power given to the Chairman. This will also aid in understanding the functions which are abolished. In this way I hope to be of the greatest assistance to the committee.