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ment made by Judge Sykes on pages 109 and 110 of the hearings on the Sanders bill by the House committee:
Nir. SYKES. I am now 65 years old. I served as a member of the Supreme Court of Mississippi for 9 years ; 12 years on these two commissions; so I have been a practicing lawyer for 35 or 40 years.
Now, you have a practical situation here with seven members on a commission and a recommendation with which I heartily concur to divide the Commission into two divisions. You cannot have the Chairman as an ex-officio member of those two divisions, because then you would have four members of either division, which might be embarrassing sometimes in case of a tie vote. I think you should have an uneven number of members on either division.
Therefore, the exigencies of the situation almost compel the Chairman be not a member of either division but the executive officer of that Commission,
Now, I cannot agree with my brethren of the bar that that should be a permanent office. Rather I believe that there should be a rotation of the chairmanship, we will say, for 1 year; a rotation of the chairmanship of each division, say, for a year. That would mean, roughly speaking, that during the term of office of the Commissioners, which is 7 years, each Commissioner would have served as Chairman of the Commission and possibly as chairman of each of the divisions. That service on both divisions should round out a Commissioner and make him familiar with the duties not only of the Commission, the executive duties of the Commission, but with the duties of each division of the Commission. In other words, I firmly believe that there should be a rotation of the chairmanship of the Commission; a rotation of the chairmanship of the two divisions; all of which should be governed by the Commission. By that I mean that the Commission should elect its own Chairman and either the Commission en banc or the divisions should elect the chairman of each division.
To have the Chairman of the Commission an ex officio member of a division, frankly, is a man-killing job. We had three divisions when we organized. We had the telephone, telegraph, and radio divisions. I tried to keep up with the work of all three divisions, as well as the work of the Commission, and it almost killed me in the time I was Chairman of the Commission. I had to give it up. I think it is too much on any man to expect him to actively keep up with the work of the divisions, if you have divisions, and I think you should have, and at the same time keep up with the duties of the Chairman.
I do not think you should have a permanent Chairman, because if you do, that gentleman would never be a member of either division, and I think, as I stated before, that there should be such a rotation as within the 7-year period of office each member of the Commission would have served on both divisions, probably as chairman of both divisions and as Chairman of the Commission.
Mr. SYKES. Yes, sir; the Chairman of the Commission or the chairman of either division should not, in my opinion, immediately succeed himself. [Italics supplied.]
The executive committee approved sections 4 and 5 as proposed in S. 1333. However, the thought was expressed by some members that it might be desirable to provide that the Chairman of the Commission "shall not be eligible for immediate reelection" to that position.
It may be of interest to state that under the constitution of the Federal Communications Bar Association, the president thereof is not eligible for immediate reelection.
In the past the association has taken the position that the chairmanship shall rotate among seven members of the Commission. However, it might well be that an inflexible rotation in the chairmanship among the members might, in some year, be undesirable. It could be that the member next in line for chairmanship, by reason of the state of his health, or by being engaged in the performance of duties outside the United States for considerable lengths of time, or for some other good reason, should not be required to act as Chairman for that year. The association feels that if your committee should see fit to amend the pending bill so as to provide that the Chairman shall not be eligible
for immediate reelection that the result will be a substantial rotation by custom.
For a somewhat extensive argument in support of the matters embraced in sections 4 and 5 of the pending bill, reference is made to the oral testimony of Herbert M. Bingham for the Communications Bar Association at page 141 et sequentes, and his written statement at pages 481 to 492 of the hearings before the Senate committee (1943) on S. 814 (White-Wheeler bill). Reference is also made to the statement of Mr. Bingham for the association (1942) made in hearings by the House committee on H. R. 5497 (the Sanders bill) at pages 16 to 108.
The association recommends that section 5, subsection (f), be amended by inserting the word "annually" after the word "shall” (line 15). This amendment would require that the chairman of each division be elected annually by the members of the division. This would be consistent with the provision of the bill that the Chairman of the Commission shall be elected annually.
In section 5, subsection (i), the word “Commissioner" in line 13 of page 8 appears to be a typographical error and should be the word “Commission." Section 6
The association takes no position as to section 6. It feels that it is the sole right of the Congress to determine what the annual report by the Commission to Congress should contain.
However, the association does feel that it would not be out of order for it to endorse specifically subsection 5 of section 6 which provides forspecific recommendations to Congress as to additional legislation which the Commission deems necessary or desirable.
In section 4, subsection (k), of the Communications Act, it is provided— that the Commission shall make a special report not later than February 1, 1935, recommending such amendments to this Act as it deems desirable in the public interest. Manifestly, the amendment proposed in subsection 5 of section 6 is desirable so as to require specific recommendations as to any additional legislation which the Commission may hereafter deem desirable. Sections 7, 8, and 9
The association is of the opinion that these three sections relate to matters of substance rather than procedure and takes no position as to these sections. It calls attention to the important change proposed in section 9. (b), lines 22 and 23, amending sections 307 of the act. The last clause in subsection (b) would require the Commission to consider economic factors in passing on applications for licenses and modifications. The Commission gave consideration to the economic factors prior to the decision of the United States Supreme Court in the Sanders Brothers Case (309 U. S. 470, 84 L, ed. 869). Section 10
This is one of the important sections of the bill. It proposes to delete the last three lines of section 307 (d) of the act and to insert in lieu thereof appropriate language requiring renewal applications to be considered by the Commission under the provisions of section 309 as proposed to be amended by section 12 of the bill. The proposed change is desirable. Some of the considerations required as to original applications (see last line of sec. 307 (d) of the act) can have no bearing whatsoever in considering applications for renewals.
However, section 12 of the bill proposes to amend section 309 of the act so that all applications, by whatever name called, shall hereafter be procedurally handled in the same way and as set out in section 309 as amended by section 12 of the bill.
Section 10 of the pending bill was not contained in S. 814. Section 14 of the confidential report print did propose an amendment to section 307 (d) of the act, but the proposed amendment to subsection (d) of section 307 of the act by section 10 of the pending bill is substantially different from the proposed amendment in section 14 of the confidential report print. The association approves section 10. Section 11
This section is very much the same as section 4 of S. 814. This section, as it relates to section 308 (a) of the act, does two things, (1) deletes the words "licenses, renewals of licenses and modifications of licenses" in section 308 (a) of the act and refers to these applications as "instruments of authorization." The author of S. 1333 has endeavored to make this change throughout the pending bill; (2) the amendment proposed has used in lines 9 and 10 on page 13 the identical language that appears in lines 10, 11, and 12 on page 45 of the confidential report print, the effect of which is to limit the instrument of authorization to “the period of emergency requiring it." The association favors section 11, but suggests that the word "second" should precede the word “proviso” in line 15. Otherwise, there will be a duplication of language in the amended section 308 (a).
Section 11 (b) amends section 308 of the act by adding a new subsection (d) relating to modification of a license, and a proceeding for the sale of a station by a transfer of a license or a transfer of the stock of the seller (licensee) corporation. The amendment proposed in subsection (b) is not found in S. 814, but is the same as section 16 (b), page 45 of the confidential report print.
The association approves the amendment proposed in section 11 (b). In line 16 on page 13 the reference to 312 (b) should be to section 312 (c). The association feels that the last sentence, beginning on line 19, page 13, is fair and desirable. If an application be filed for the sale of a radio station, from A to B, it is difficult to understand how an inquiry into the conduet of A, or alleged deficiencies in the operation of a station by A, would aid in determining whether B would be a proper transferee. In fact, bad conduct or inefficient operation by A makes it all the more in the public interest to have some other person than A as licensee. Section 12
This section amends section 309 of the act, relating to the procedure for the consideration of applications, (1) without hearing and (2) with hearing. There is no section is the act in which the association is more interested than section 309. The association is in full accord with section 12 in the pending bill. (See reservation hereinbelow as to no position on the economic element.)
Much of the dissatisfaction in the association as to procedure at the Federal Communications Commission arises out of the procedure for the consideration of applications. The association is of the opinion that section 309 (a) of the act is lacking as to definite details of the Commission's procedure for the consideration of applications; that this procedure has not always been the same, and at times has been arbitrary and has frequently failed to meet the true concept of a fair or full hearing.
Through the years much of the time and energy of the Law Department of the Commission has been devoted to litigation in the United States Court of Appeals for the District of Columbia, where the question involved was that the appellant claimed that he was an interested party and was adversely affected by the grant of an application, and that a hearing had been denied which would have afforded him an opportunity to participate and show how he would be adversely affected. S. 1333 in various sections has recognized the validity of this complaint and endeavors to provide that interested parties shall be given an opportunity to participate in hearings.
In a recent address by Justice Prettyman of the United States Court of Appeals for the District of Columbia (Journal of the Bar Association of the District of Columbia, June 1947, p. 258) he said:
But the public will have no part of arbitrary administrative action as it sees it. Its dealing in such instances is ruthless and oftentimes tragic.
And to comply with the requirements is such a simple matter. Over and over again we hear arguments and protestations about why a hearing was not granted.
In 25 years of administrative law, inside and outside the Government, I assure you that I have never heard a good reason for not having a hearing in a dispute, and I have never known an instance in which any time was saved by not giving a hearing.
Section 309 (a) of the act, relating to the all-important matter of procedure for the consideration of applications, consists of only nine Îines. The first sentence relates to applications which may be granted without a license, and the second and last sentence realtes to applications which, after examination, are designated for hearing.
The procedure for handling of applications which must be designated for hearing is covered in the most general terms. The proposal in section 12 of the pending bill seeks to set out in detail the procedure which the Commission should follow in the designation of applications for hearing. It should be pointed out that lines 22 and 23 of section 12 require the Commission to give consideration in the application to the claim of an existing station that it will be adversely affected economically by the grant of a pending application for a construction permit." The association feels that the economic factor is actually a matter of substance rather than procedure and, therefore, takes no position on the economic factor. It believes that this is a matter of substantive policy which the Congress should now decide.
Prior to the decision of Federal Communications Commission v. Sanders Brothers Radio Station (309 U. S. 470, 84 L. ed. 869 (1940)), the Commission had considered in its decisions alleged economic adverse effects on an existing station by a proposed new station. The Sanders Bros. case held that economic injury to an existing rival radio station is not, in and of itself and apart from considerations of public convenience, a separate and independent element that the
Commission must weigh and consider and as to which it must make findings in passing upon the application under section 307 (a) of the Communications Act.
The required procedure for applications designated for hearing which is contained in 41/2 lines of section 309 (a) of the act is to be contrasted with 33 lines on the same subject in section 12 of the pending bill. S. 814, section 5 (b) proposed a similar amendment to section 309 (a) of the act, but was lacking somewhat in specifying procedural details. However, after the hearings on S. 814 the sponsors evidently recognized the inadequacy of the proposed amendment in S. 814, and in the confidential-report print the proposed amendment to section 309 (a) was redrafted and is not substantially different from the section 12' (b) of the pending bill, except that Š. 1333 requires an alleged economic element must be considered by the Commission in passing upon applications designated for hearing.
During the testimony of Mr. Bingham for the association in the hearings on S. 814, Senator White at page 146 called attention to the decision in the Sanders case supra. This same matter was discussed in the written statement of Mr. Bingham at pages 484 and 485 of the hearings on S. 814.
In that statement Mr. Bingham pointed out that section 5 of the Sanders bill (H. R. 5497) was substantially the same as section 5 of S. 814. In the hearings on the Sanders bill, Mr. Bingham discussed the amendments proposed therein to section 309 at pages 33–39.
The amendment proposed by section 12 (c) relates to protests by any person adversely affected or aggrieved by a grant of an application without hearing. The association has heretofore testified in hearings as to the importance of a protest rule which would afford persons claiming to be adversely affected or aggrieved by a grant of an application, an opportunity to be heard before a grant was made for a new proposed station." Section 5 (c) of S. 814 contained a provision for protests by an aggrieved person to the grant of an application for a new station without a hearing. The confidentialreport print on S. 814 at pages 47 and 48 contains some minor changes in the protest rule as proposed in S. 814, section 5 (c). The principal difference between the protest rule as proposed by section 12 (c) of the pending bill from the protest rule proposed in S. 814 and in the confidential-report print on page 48, is that the pending bill in lines 14 to 16 on page 16 properly imposes the burden of proceeding with the introduction of evidence and the burden of proof upon the protestant. The pending bill, beginning in line 16 on page 16, also requires that a hearing arising from a protest shall be expedited by the Commission.
The Commission by rule 1.390, effective September 11, 1946, relating to petitions for reconsideration or for rehearing, has actually recognized the necessity for what amounts to a protest rule—though rule 1.390 gives the Commission the right to decide the question on the facts alleged. Whereas, the protest procedure proposed in the pending bill limits the Commission to a consideration as to whether the petition contains allegations which meet the requirements of the proposed protest procedure.