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unconstitutionality. I am cautioning you against the actions of your own administrative creature.

Senator MCFARLAND. Now, have you had conferences with this administrative creature, or any members thereof, in regard to this bill? Mr. MILLER. No; we have not had time.

Senator MCFARLAND. You have not talked with them at all in connection with it?

Mr. MILLER. Not with any member of the Federal Communications Commission.

Senator MCFARLAND. Have representatives of your companies talked to them about it since it has been introduced?

I

Mr. MILLER. I could not answer for them, Senator McFarland. assume some of them may have, but I could not answer for them. Senator MCFARLAND. I assume that they would have told you. Mr. MILLER. No one has told me, so far, anything more than that I heard Mr. Denny say yesterday that there is no hurry about getting this bill through, and that we would all prefer that it would go over to the next session, so we would have full time to consider it. I join with him very heartily there.

The CHAIRMAN. Right there: Could you tell me whether anyone in your organization is responsible for a telegram, the substance of which I shall now read to you, omitting any identifying direction or sig

nature:

Please do everything possible to delay action on the White bill until NAB has time to make up a case against it.

Mr. MILLER. I did not prepare that telegram, and, insofar as I know, no one in my organization prepared that telegram.

The CHAIRMAN. Has your organization or any individual in it, so far as you know, sent out anything of similar import?

Mr. MILLER. Our organization has sent out information about the bill and has asked for suggestions from the members.

Let me give you the full case: I would have no hesitation in taking full responsibility for that telegram if it had been sent out. I think it would be entirely proper that it should be. I think it is entirely improper for Congress to proceed so fast in a determination of this kind that we do not have a chance to consider the merits of the bill.

The CHAIRMAN. I still insist that whoever is urging that time be granted so that the National Association of Broadcasters or anyone else can make up a case against a bill is going far beyond legitimate requests for opportunity to be heard.

Now, nobody has been refused an opportunity to be heard here. We are trying to limit, within what I think are reasonable limits, the consideration of this measure. Much of it, as you all know, is just a redraft, and possibly not even that, of provisions that were carried in S. 814, the Wheeler-White bill, so called.

I have not had any opportunity yet to find out who originated this message, or other messages of this sort, but I rather resent that anyone should be demanding time so that a case can be made up against a bill. I think that whoever is doing that had better register as a lobbyist up here.

Mr. MILLER. I agree that if anyone did that he should register as a lobbyist.

The CHAIRMAN. I am going to find out, if I can, about this.

Mr. MILLER. On the other hand, there certainly should be every opportunity given to the people to make a case against any legislation which is proposed.

The CHAIRMAN. I do not think any opportunity has been denied yet.

Mr. MILLER. Very well. Why should there be any objection, then, to their making a case?

The CHAIRMAN. It all depends upon what you mean by "making a case."

Mr. MILLER. I do not know the author of that language. But I have been doing my best to study this legislation, and I have had every available person in my organization studying it.

The CHAIRMAN. We have given you already 2 hours to express your

views.

Mr. MILLER. Thank you, Senator.

The CHAIRMAN. You have been interrupted, I know, but still have had 2 hours already.

you

Mr. MILLER. I frequently had the situation when I was presiding in court, where the judges stole most of the lawyer's time, and when the time was up the judge would ask him, "Counselor, how much time would you need to finish your own argument?"

And they have given him the time that he asked for. I think this is a matter of vital and tremendous importance.

The CHAIRMAN. Sometimes they give the time that a lawyer asks for, but often they do not.

Mr. MILLER. That was never true when I was presiding. The lawyer always got time to present his case.

Senator MCFARLAND. Well, to come back to another proposition here, preliminary to what I was trying to get at: I understand the Commission is opposed to this legislation, and your people are opposed to it, and I just wondered if there had been any understanding be

tween you.

Mr. MILLER. None whatever.

Senator MCFARLAND. And when the companies get together with the Commission, sometimes I begin to feel that maybe this legislation might be pretty good legislation. It is either very bad or very good. Mr. MILLER. I would be very happy to have you gentlemen put me under oath if you desire, so that I can swear that there has been no collaboration between me and any members of the Commission. The Commission's objections are on entirely different grounds than ours. I listened to Mr. Denny yesterday morning. We are all objecting, but we are all objecting on different grounds. The one thing on which we agree, if there is any agreement, is that we ought to study this thing further.

Senator MCFARLAND. I will say this: From what little I know about this subject, I do not think anyone could write legislation that would please everyone. And I do not think you could write legislation that would please yourself, actually.

Mr. MILLER. I have participated in studies in connection with a great deal of legislation, and I would be very glad to respond to any request to help in writing this legislation.

Senator MCFARLAND. I would not want to sponsor legislation that was prepared by the companies. But what I really had in mind was that I do not know that I could write legislation that would please my

self. I really was not thinking about you. I can pick flaws in things that other people do better than I can write bills or contracts.

Mr. MILLER. That is a problem which every lawyer knows, Senator. All of you know it.

The CHAIRMAN. Now, may we proceed with the testimony?

Mr. MILLER. Another favorite argument for abridging the freedom of speech by means of radio is that there is a limited number of frequencies available for this purpose. When this doctrine was first asserted, there may have been some facts to support the scarcity idea; but the facts no longer justify such an argument. There are, today, far more frequencies available than we had any idea of when we first began to regulate radio broadcasting in interstate commerce.

There is plenty of opportunity for confusion, but so far as the actual number is concerned, there are plenty to take care of legitimate requests at the present time, I am satisfied. At the present time, it is common knowledge that in most communities there are more radio stations operating, or licensed to operate, than there are newspapers. The competitive system has taken care of the thing so far as scarcity is concerned.

Senator JOHNSON. I notice, Mr. Miller, that in speaking of limitations, you say nothing about the limitation in hours. There are very definite limitations to the number of hours of broadcasting. There are only 24 hours in the day.

Mr. MILLER. That is very true. That is a limitation, of course. But that is not peculiar to broadcasting. That is peculiar to all human life.

Senator JOHNSON. But that is especially peculiar to broadcasting. Mr. MILLER. What is the peculiarity to it? We all have 24 hours of life.

Senator JOHNSON. If you go down to get some time on a radio station, you will find out whether there is anything to it or not.

Mr. MILLER. You mean the possibility that a speaker has of getting time?

Senator JOHNSON. I mean the possibility of getting time for an advertiser or a speaker, or anyone else. The difficulty comes because there is a limitation of hours.

Mr. MILLER. You can say the same thing about the limitation of space in a newspaper.

Senator JOHNSON. Well, we are talking about radio now.

Mr. MILLER. We are talking about radio, and I am insisting that radio presents a direct analogy to the press; and wherever you make the point, I attempt to reestablish the analogy.

Senator JOHNSON. That is as farfetched as comparing an elephant to a flea.

Mr. MILLER. They are both in the animal kingdom.

Senator JOHNSON. Yes, they are both on this earth; and that is about the only comparison.

Mr. MILLER. There are much closer resemblances between radio broadcasting and the press, however. They both come within the first amendment.

Senator MCFARLAND. I am afraid, Judge, that you have a court here that is at least partially composed of members to whom you are going to have a very difficult time in making your points, when you attempt to make a comparison with the press.

Mr. MILLEI. I accepted that challenge before I came in, Senator. I insist they are both in the first amendment, and they are both subject to the same controls, and they are both subject to the same protections. And I intend to fight it out on that line if it takes all the rest of my life.

Senator MCFARLAND. It will probably take the rest of your life to convince me that there are not a lot of big differences between the press and the radio.

Mr. MILLER. I concede differences.

Senator MCFARLAND. I might not last long enough for you to be able to do that, either.

Mr. MILLER. Let us cut the problem down. Let us admit there are differences and then start from that point and say there are no differences which are sufficient to justify different treatment under the first amendment.

Senator MCFARLAND. But, frankly, I do not think that you have made one point thus far since you have been here by these comparisons. Mr. MILLER. The comparison between the press and the radio? Senator MCFARLAND. Yes.

Mr. MILLER. Well, I will go on. I hope still to make it.
Senator MCFARLAND. I will still give you the opportunity.
Mr. MILLER. To return to my statement:

Indeed, it has been suggested that the number of licenses being issued is so great that it may result in the bankruptcy of many licensees. Again, there is nothing in the first amendment which says that it is proper to abridge freedom of speech because of scarcity, whether it be a scarcity of public halls, of soap boxes, or churches, or printing presses, or newsprint-or radio broadcasting. That is our test, after all the language of the first amendment.

As a matter of fact, we are warned by our conservationists that the supply of timber is being rapidly exhausted and the present shortage of newsprint is probably merely the beginning of a more or less constant condition of shortage. Although there is a limit, as yet undetermined, of a number of these frequencies, yet we are told, also, that only God can make a tree-and man has been destroying the trees faster than God is making them. If the argument which is made to justify abridgment of freedom of speech is applied to the press, some of these days we may have a Government agency authorized to make allotments. of newsprint.

Obviously, the amount of regulation which should be used in such a case, should be the minimum; but it is entirely conceivable that if a Government agency were established for this purpose, it would immediately begin to assume the necessity of great staffs of personnel and elaborate procedures for determining the persons to whom allotments of newsprint should be made. Would be proper, under such circumstances, for a body to impose the sort of abridgements upon freedom of the press that are now imposed upon radio broadcasting? The question would seem to answer itself.

Congress would do well to consider the possible implications of the precedent which is being set in connection with the regulation, in interstate commerce, of radio broadcasting, in connection with other media. There are people who say that the analogy is good, and that Congress should regulate the press. There are very substantial arguments

being made in its favor, and some of these days somebody is going to propose such an organization. The idea of scarcity is a plausible one, but certainly, it provides not the slightest justification in fact or in law for an abridgment of freedom of speech as guaranteed by our Constitution.

Now, we come to monopoly, on page 28 of the statement.

Senator JOHNSON. Before you go to that point, I would like to make one observation. You have been talking about the abridgment of freedom of speech. I am concerned about the violations of freedom of speech which the radio broadcasting agencies practice. I think that instead of somebody else abridging freedom of speech, they are the guilty parties.

Mr. MILLER. All right, Senator. Let us assume that premise. When you do, you are not talking about the provisions of the first amendment. The abridgment of freedom of speech which was contemplated in the first amendment is abridgment by Government upon private individuals or private organizations. If there is abridgment of freedom of speech by the private individual, that is an entirely different question. That has always been a problem.

Senator JOHNSON. Then you admit that there is such an abridgment. Mr. MILLER. Oh, definitely, so far as the abridgment by other people over the press is concerned; that has always been true. In the early days of the newspaper there were comparatively few newspapers. It took a very wealthy man to produce one.

Senator JOHNSON. Let us talk about radio, rather than newspapers. Now, do radio stations abridge the freedom of speech, or do they not? Mr. MILLER. Not in the sense of the first amendment.

Senator JOHNSON. Well, I do not know what you mean by that answer. I want to know if there is freedom of speech on the radio. Mr. MILLER. Well, that is a very large question. You are asking me to use a legal term?

Senator JOHNSON. I would like to have just a yes or no answer. Mr. MILLER. I say no; because of the very reasons I have been talking about; because there has been Government interference with freedom of speech. But that is not what you are talking about.

Senator JOHNSON. No, that is not what I am talking about. I am talking about the abridgment of freedom of speech and I am saying that broadcasters practice abridgment of freedom of speech. I say they are guilty of that.

Mr. MILLER. In a sense they do, but they cannot practice that in the sense used in the first amendment, because no individual not representing Government could possibly practice abridgment of that kind.

Senator JOHNSON. Let us use the word "limit" then.

Mr. MILLER. There is no doubt that they do limit freedom of radio speech. And that has always been true in the case of every medium of speech.

Senator JOHNSON. Because that is true, and because it is particularly true of radio stations, Congress has a particular responsibility as to the interests of the public, and it must bring about a specific remedy.

Mr. MILLER. All right. To the extent that Congress can do that under any of its granted powers, its delegated powers, I agree with

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