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and (8) are the same, or substantially so, as proposed in section 12 of S. 814.
Subsections 6 and 7 of section 22 of the bill are proper so as to take care of appeals from cease-and-desist orders and from declaratory judgments.
Subsections (c), (d), (e), (f), and (g) of section 22 relate to preparation of the record on appeals, and so forth, and are not substantially different from existing law.
Subsection (h), on page 36 of the bill, is new and is approved by the association. The amendment proposed is to cure the situation which arose out of Pottsville Broadcasting Company v. Federal Communications Commission (98 Fed. (2d) 288), which reversed the Commission and remanded the case for reconsideration in accordance with the views expressed by the United States Court of Appeals for the District of Columbia. The Commission took the case to the United States Supreme Court on writ of certiorari (Federal Communications Commission v. Pottsville Broadcasting Company (309 U. S. 134, 84 L. Ed. 656)). That Court held that the circuit court of appeals could not require the Commission to hear and consider the application on the basis of the record as originally made instead of considering it together with rival applications subsequently made for the same facilities.
The actual outcome of this lengthy litigation was that neither Pottsville Broadcasting Co. nor any of the other applicants ever received a grant. We are advised that all of the applicants finally abandoned the applications for one reason or another.
The association feels that the amendment proposed to subsection (h), page 36 of the pending bill, would protect the dignity and responsibility of the court and rights of the litigant.
On page 12 of the statement by Senator White on the introduction of S. 1333, he said:
Subsection (1) contains provisions which are intended to confer upon the appellate court a measure of control commensurate with the dignity and responsibility of that tribunal, requiring the Commission to give effect to the judgment of the court in the absence of proceedings to review.
Subsection (j) of the bill, page 37, provides for an appeal to the United States Supreme Court as a matter of right in revocation and renewal proceedings where the Commission has revoked a license or denied a renewal thereof. Revocation and renewal are of such consequence to the licensee, as his investment may be entirely swept away, that a direct appeal to the United States Supreme Court seems warranted.
On page 13 of the statement made by Senator White, he gave cogent reasons why appeals as a matter of right to the Surpere Court of the United States should be authorized in renewal and modification proceedings. Senator White stated that since 1927 only one petition for certiorari had been granted upon request of a private litigant, whereas only one petition has been denied when filed by the Government. Section 23
The effect of this section is to clarify section 405 of the act. The act now requires petitions for rehearing to be filed within 20 days after the effective date of the order. It is proposed to change this to 30 days. Under a long line of decisions an appellant is required to exhaust his administrative remedy before taking an appeal. Frequently, it has been difficult to determine with certainty whether it is necessary
under the facts of a particular proceeding to file a petition for rehearing in order to exhaust the administrative remedy.
So as to clarify this situation, section 23 of the pending bill, beginning on line 23, provides that the filing of a petition for rehearing shall not be a condition precedent to judicial review except where the party seeking such review was not a party to the proceedings, or where the party seeking review relies on questions of fact or law upon which the Commission has been afforded no opportunity to pass.
The association approves section 23. Section 24
This section emphasizes in lines 17 to 19, that a hearing shall be “a full and fair hearing."
In section 409 (a) of the act there are certain matters which the Commission may not delegate an examiner to hear. This limitation has never served any useful purpose. Since section 24 of the pending bill requires that the person conducting the hearing, including examiners, shall file an intermediate report setting out in detail and with particularly all basic or evidentiary facts developed by the evidence, as well as conclusions of fact and of law upon each issue submitted for hearing, the association feels that the limitation which excludes a hearing by examiners in such matters should be dropped from the act. The pending bill further proposes that oral argument on any such intermediate report shall be afforded to any party to the proceeding. Section 25
This section amends the act by adding a new section to prohibit discrimination between persons based upon race, or religion, or political affiliation or kind of lawful occupation, or business association.
Because this section is a matter of substance instead of procedure, the association takes no position thereon. However, if the section were considered as a matter of procedure, the legislative committee of the association is of the opinion that it would be approved.
Mr. Chairman, I should like to take up a few of the high points of the bill at this time.
Probably Mr. Jameson has made a more accurate estimate of the membership of the association than I have, though I did make a rough estimate.
There are approximately 400 members of the association, many of them scattered in various parts of the United States, and probably 60 percent of the membership of this 400 has been brought about by the fact that frequently in taking depositions or something of that kind, a lawyer in the other part of the United States had to be a member of the association, and as a result of that, the total membership of 400 could be boiled down to, I would say, somewhere in the neighborhood of 100 active practitioners before the Commission.
Senator MAGNUSON. Why does he have to be a member of the association to take a deposition some place throughout the country, if he is a practicing lawyer?
Mr. ROBERSON. It is either in the act or in the rules, Senator. Anyway, that has to be done.
Senator MAGNUSON. Well, do you not think the association ought to find out whether it is in the act or is a rule of the Commission?
Mr. ROBERSON. It just does not occur to me at the moment which it is, except that I know it has to be. Senator MAGNUSON. Are there dues ? Mr. ROBERSON. No, sir; there are no dues.
Of the estimated 100 active members of the association, I think it would be of interest to note that about 40 or 45 of this active membership of 100 have been at some time or other members of the Law Department at the Federal Coinmunications Commission.
Senator MAGNUSON. In other words, you mean half of these people who are in active practice before the Federal Communications Commission have at one time or another worked down there at the Legal Department?
Mr. ROBERSON. That is right. There are between 40 and 45 of these active members who live and practice in Washington, and, roughly estimated, 10 or 15 lawyers live in other parts of the United States, who are also active members of the association.
I should say that I appear here as chairman of the legislative committee of the Federal Communication Commission Bar Association, composed of Mr. Louis Caldwell, Mr. Horace Lohnes, Mr. Frank Quigley, and myself.
Due to the time involved, there was a joint meeting of the executive committee of the association, and the legislative committee, at which the bill was gone over section by section. We spent all of the afternoon on it, and this statement has been prepared by the legislative committee as a result of the conferences had with the executive committee of the association.
The Federal Communications Commission Bar Association has always taken the position that it should confine its interest in legislation to procedural matters, and we have included throughout the years, as a part of the procedural matters, the organization of the Commission.
In my discussion of the proposed bill, I will not go into the substantive provisions of the proposed legislation.
The first provision of the bill that I want to discuss and which the bar association approves takes the position that the chairman of the Commission should be selected by the whole Commission.
As you know, the act now provides that the chairman of the Commission shall be designated by the President. That practice does not obtain except in two or three commissions, as I understand it.
Through the years, our association has always thought that it would be best for the Chairman of the Commission to be elected by the Commission itself. That position has been taken because there have been so many of the members of our association who have theretofore been attorneys at the Commission that we recognized that it was a perfectly natural thing, if you had a permanent Chairman of the Commission and no rotation in the chairmanship at all, for the members of the Federal Communications Commission, particularly the Legal Department, rather to discount the importance of the other six members of the Commission.
We feel that it is better for the Communications Act to provide that the Chairman of the Commission shall be selected by the members of the Commission. Thereby you would inevitably have some rotation in that office. There are some other reasons that could be advanced which I will not go into, but we think that is the proper situation.
As I understood Chairman Denny's statement this morning, he does not object to the provision that the Chairman of the Commission shall be selected by the Commission.
Senator MAGNUSON. Where does the bill provide for rotation?
Senator MAGNUSON. Where in the bill does it provide for the rotation of the chairmanship, if he is elected by the Commission ?
Mr. ROBERSON. Our committee has recommended that it would be in the public interest if the bill were amended so as to provide that the Chairman of the Commission shall not immediately succeed himself.
The CHAIRMAN. Shall not what?
Mr. ROBERSON. Shall not immediately succeed himself as chairman. I think that is much better than the inflexible rotation, for the reason that there might be situations, if you have an inflexible rotation, where the person next in line might be in Cairo or some foreign conference on communications, and might be out of the country for several months. Or his health might be such that he could not carry on the duties of the chairmanship, which are tremendous.
And we have felt that it would be better to provide that the Chairman of the Commission shall be selected by the Commission, but that he shall not immediately succeed himself.
Senator Magnuson. Your point is that you agree with the provision of the bill that he not be appointed by the President?
Mr. ROBERSON. That is right.
Senator MAGNUSON. But that if he is appointed by the Commission, also there should be added to the bill the provision that he shall not succeed himself.
Mr. ROBERSON. That is right.
Senator MAGNUSON. And those are the provisions of the former White-Wheeler bill.
Mr. ROBERSON. I am not too clear whether the old bill provided for an inflexible rotation, or whether it just provided that the Chairman shall not immediately succeed himself.
Senator Magnuson. The present bill makes no provision for rotation ?
Mr. ROBERSON. That is right.
Senator MAGNUSON. And it would mean that once the man is elected Chairman of the Commission by the Commission, he could stay there as long as the Commission would want him to.
Mr. ROBERSON. That is right.
Senator CAPEHART. Of course, if he could not immediately succeed himself, you would automatically have rotation, would you not?
Mr. RÓBERSON. I think so. The custom would arise inevitably. I have in mind the Federal Trade Commission in that regard.
Senator MAGNUSON. You would amend the bill that is under consideration; is that correct?
Mr. ROBERSON. That is right; by adding that the Chairman of the Commission shall not immediately succeed himself. Now, Mr. Chairman and gentlemen of the committee, our association also favors dividing the Commission into divisions.
In support of that proposition, I want to ask the indulgence of the committee to read what Judge Sykes, who I am sure was known to all of you, testified on this very subject in the House some years ago when he was a member of the legislative committee of the Federal Communications Commission Bar Association, after he had retired from the Federal Communications Commission, of course.
You will remember that Judge Sykes was a member of the old Radio Commission. He was the first Chairman of the Federal Communications Commission. He later resigned as Chairman of the Federal Communications Commission and then served as Chairman of the Broadcast Division.
I have known Judges Sykes intimately through 40 years, and after he retired he came into our law firm. It would save time, I think, if I would be permitted to read to you what Judge Sykes said about the chairmanship of the Commission, and the fact that he thought it would operate better if you had two divisions rather than just one, as we call it, whole Commission.
On pages 109 and 110, of the hearings on the Sanders bill, H. R. 5497, in the House in 1942, Judge Sykes said:
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 34 or 40 years.
Now, he was a member of the legislative committee of the Federal Communications Commission Bar Association, testifying for the association, when he made this statement.
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 viote. I think you should have an uneven number of members on either division. And the present bill so provides.
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. The present bill does not so intend, I am sure.
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 would 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 mankilling job. We had three divisions when we organizedin 1934, that would be. 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.