Mr. TENZER. Would you judge or estimate

Mr. FORD. Oh, I would say in some instances perhaps as long as 200 miles.

Mr. TENZER. I would like to ask you one more question because of your great background in this field. I wish I had some of that knowl edge to be able to prepare me for this job.

Mr. FORD. I can tell you it is not near enough for what I am doing. Mr. TENZER. In these days of communications satellites, would it not be possible, as has already been suggested here, that a signal might be sent up to a satellite and be able to come down from above and reach every hill and mountain and valley in the country?

Mr. FORD. Well, sir, from recent predictions of certain very knowledgeable people this is not too far away.

Mr. TENZER. And in that case there would be no need for CATV? Mr. FORD. Well, I won't say that because we just don't know what the effects of that will be. Perhaps we don't know the size of the dish that will have to be on everybody's house or how many dishes you would have to have on an apartment house.

Mr. TENZER. Then you see the problem we are faced with, not only trying to do what those who wrote the 1909 copyright bill had to do, that is, looking into the future. They didn't have the problem of radio and television.

Mr. FORD. And I suspect, sir, if that occurs probably our industry will scream as loud as the broadcasting industry is screaming at the progress made in the art of communication.

Mr. TENZER. That has been the trend in our free enterprise system as it developed.

Mr. FORD. That is correct; trying to get the Congress to protect you from competition, and I suspect, while we are not competing and we contend vigorously we are not competing-that only the signals of the various stations are competing, and we furnish nothing but an antenna service.

Mr. TENZER. You have been very helpful to me and I thank you. Mr. KASTEN MEIER. Mr. Edwards?

Mr. EDWARDS. I have one question, Mr. Chairman.

Mr. Ford, do I presume from your testimony, therefore, that the practice described by Mr. Jennes as "CATV unlimited," which apparently is the importation of multiple television signals from distant stations into cities where local and area television stations are already reaching the viewing public, is not engaged in by your members nor do your members intend to engage in this practice?

Mr. FORD. I am not quite sure what Mr. Jennes means by "CATV unlimited." I am a little inclined to think that it is a catch phrase which is intended to be some sort of opprobrious epithet.

Mr. EDWARDS. May I redefine it?

Mr. FORD. Yes, sir.

Mr. EDWARDS. Shall we say bringing through your antenna and cable system a Yankee baseball game from New York City together with the accompanying advertising to a town in Pennsylvania.

Mr. FORD. We would engage in bringing signals from some distances away by way of microwave. The Commission has found and licensed a considerable number of those. As I mentioned, Dr. Seiden mentions 322 such microwave systems for such purpose that they found a grant was in the public interest.

Mr. EDWARDS. Thank you, Mr. Chairman.
Mr. KASTENMEIER. Mr. Poff.

Mr. POFF. Thank you, Mr. Chairman.

I assume that the two cases to which you made reference in your testimony turn essentially on a question of performance; namely, does this constitute a performance within the meaning of the act? Is this correct?

Mr. FORD. NO. The two cases I cited, I believe, referred to a tax matter in which the court was considering the effect, judicial cases. Mr. POFF. I am afraid you didn't understand my question. Mr. FORD. Oh, I am afraid I didn't.

Mr. POFF. I say, do the two cases now pending, to which reference was made, turn on the question of performance?

Mr. FORD. I am not familiar with what the pleadings in those cases

are.

Mr. POFF. I think the answer to the question is "Yes." No one suggested it, but I am sure you will find that is right.

In your testimony, you question whether the service which CATV performs is a performance. In fact, you said emphatically it is not a performance. Yet, you compared the service you render with the antenna on the top of an apartment roof.

Are you aware that the court has found that that precise arrangement constitutes a performance, even when those in the individual rooms have the opportunity to make alternative selections on their receiving sets?

Mr. FORD. I understand that the court has done this with respect to radio in which the part of the room rent was part of the price, apparently, and they did hold this to be a performance.

Mr. POFF. I have reference to the Jewell-LaSalle case and the case of SESAC v. New York Hotel Statler.

Mr. FORD. The hotel owned the receiver, the thing that was being used. They owned the tangible complete system, whereas all we do is have an antenna and then an open end. The householder has to turn on his set. He has to supply his own performance-making instrument.

Mr. POFF. I don't want to quibble with you about it, but do you say that because the hotel owned the receiving set as well as the antenna, this made a distinction in applying the definition of performance?

Mr. FORD. This is at least one distinction. There are probably others. I haven't really gone into this Jewell case. I am speaking more of what it ought to be rather than what it has been in the past because I am not an expert on copyright.

Mr. POFF. Theoretically, the court will make that decision for us in the other two cases.

Mr. FORD. We think so.

Mr. POFF. At least twice in the course of your testimony you referred to the fact that some CATV systems, at least, have the power to originate.

Mr. FORD. Yes, sir. That is correct.

Mr. POFF. Would you mind expanding on that a little?

Mr. FORD. They take one of the channels that is not used in the traditional CATV sense; that is, it isn't in the system. It is a part of the system, but does not carry television signals. They may put on that

52-380-66-pt. 2-40

a weather scanner. They may put on that time, at least one or two that I know about-I think William Allen White in Emporia, Kans., reserves one of the channels in his CATV system for people of some note that come to town and he takes them over and they sit down and they talk. They have a little local television. He originates that program, and it is carried on his CATV system to his subscribers.

Mr. PoFF. He has a cameraman there?

Mr. FORD. Yes. He has a little camera and puts it right on his system on one channel.

Mr. POFF. He has the facility to feed it into the system?
Mr. FORD. Yes, sir.

Mr. PoFF. Really, then, he is a miniature local broadcasting station. Mr. FORD. No, sir. I can't agree with that because "broadcasting" has a very technical sense, but he originates programs and does deliver them to his subscribers.

Mr. POFF. Do those who engage in this practice sell advertising in connection with those programs?

Mr. FORD. I have heard it charged that some do, but I have never seen it documented.

Mr. POFF. If they do, would they be subject to license?

Mr. FORD. Except that here there is no copyright involved. He just has people and they come in.

Mr. POFF. I have reference to an FCC license.

Mr. FORD. Oh; no, sir. No. An originating program would not require a license of a CATV system at the present time since it is not a broadcast station.

Mr. POFF. Do you think the chances are that the capacity to originate programs by CATV systems will increase in the foreseeable future?

Mr. FORD. It may or may not. It is pretty hard to foresee what is going to happen in this industry. If it does, the industry is entirely agreeable to being subject to exactly the same conditions that a broadcaster is subject to the political advertising, political broadcasts, fairness doctrine questions, announcements of sponsorship; all these other various technical things that must be done by a broadcaster; station identification; all this sort of thing.

We believe that if we originate programs that we should be subject to the same thing and have no objection to it and, as a matter of fact, have offered to agree to that with the National Association of Broad

casters.

Mr. KASTEN MEIER. Will the gentleman yield?

Mr. PoFF. Yes.

Mr. KASTEN MEIER. To that extent, this would not differ in any way from the traditional pay-TV concept. To the extent that they are paid a monthly fee and they originate programs, it resembles pay-TV arrangements; does it not?

Mr. FORD. Use of cable would be the same and the fact that they charge a monthly fee instead of a per program. Pay television, as I envision it, and I think it is commonly understood in the industry, is a program-by-program charge; so that if you watch, you pay. If you don't watch, you don't pay.

Mr. KASTEN MEIER. That depends on the system you are describing? Mr. FORD. That is right.

Bartlesville, I think, was a monthly charge for all originated pro

grams.

Mr. KASTENMEIER. But pay TV has to be licensed, does it not, by the FCC?

Mr. FORD. No, sir. The Commission did not issue a license in the STV operation in Los Angeles.

Mr. POFF. Mr. Chairman, I think that is all.

Mr. KASTENMEIER. Counsel?

Mr. FUCHS. Mr. Ford, do translators, to any extent, seek copyright clearance today?

Mr. FORD. Not that I know of. They may, but if they do, I haven't heard of it.

What they do seek is consent of the originating station under 325 (a), and normally a translator's coverage area is so small that in all probability if the copyright owner knows about it he hasn't bothered with it.

Mr. FUCHS. They don't seek copyright clearance, as such?
Mr. FORD. Not that I know of.

Mr. FUCHS. Thank you.

Mr. KASTENMEIER. I want to thank you, Mr. Ford, for your testi

mony.

You have a number of other witnesses who want to testify briefly? Mr. FORD. Yes, sir.

Mr. KASTENMEIER. And will you introduce them as they testify? Mr. FORD. Yes, sir.

Mr. Don Corbitt.

Mr. KASTEN MEIER. Welcome to the committee, Mr. Corbitt.
You may proceed, sir.

STATEMENT OF DON CORBITT, ARIZONA TELEVISION ASSOCIATION,
PHOENIX, ARIZ.

Mr. CORBITT. Thank you. Mr. Chairman, members of the subcommittee, my name is Don Corbitt. I am a partner in the law firm of Snell & Wilmer in Phoenix, Ariz. I am making this statement on behalf of the Arizona Community Television Association, which I represent. I am familiar with the facts of community antenna system operation both by virtue of my representation of the association and because of extensive work which I have done for another client who is active in all phases of the community antenna industry, including ownership and operation of community antennas in various parts of the United States, the manufacture of equipment for community antenna systems and the installation and construction of community antenna systems. He is also a television broadcaster owning one of the two television stations in Yuma, Ariz., where he also owns and operates a community antenna system.

I have reviewed H.R. 4347 on his behalf and for the association. I do not propose to repeat what Mr. Ford, the president of the National Community Television Association, has said about the bill. However, I do wish to expand on one matter to which he referred but which time did not permit him to develop in detail.

I find the concept of applying copyright protection against CATV reception to be illogical, and I submit completely unworkable. I will

try briefly to give my reasons, but I must say at the outset that I feel that the basic reason for this is that by the very nature of the services which CATV renders there can be no workable scheme for the application of the copyright concept to CATV.

Others have emphasized that CATV is an antenna service. This is true, and I will not elaborate on this. I assume that the supporters of H.R. 4347, as applied to community antenna systems, will not contend that the installer of a private home rooftop antenna should be subject to copyright clearance. I assume also that if the man installs a small amplifier on that rooftop antenna to strengthen the signal that he is still not subject to copyright clearance; but I do not know at what point the copyright proprietors supporting this legislation will permit an antenna to be supplied, purchased, or rented for public use by a member of the public and not require the supplier, purchaser, or rentor to obtain copyright clearance.

Can two homeowners share a small antenna with one amplifier? Can 100 or 500 or 5,000 share one as a cooperative? It is not clear from H.R. 4347 whether cooperatives are exempt from the provisions of the act. However, it may be argued that since there is no direct or indirect payment or commercial advantage the act may not cover cooperatives.

If cooperatives are exempt, could the effects of H.R. 4347 be defeated if each community antenna subscriber bought one share in the system and acquired total ownership thereof, one share each to each subscriber, and then retained the former owner under a management service contract to maintain the service for the conduct of the antenna service, then be exempt from paying copyright royalties under H.R. 4347? This simply raises the question as to whether coverage under the act should be determined on the basis of private or cooperative ownership.

In other words, can the public use a master antenna system of any size, so long as there is no commercial advantage to the owners of the antenna system, and not be subject to copyright restrictions? I submit that the method of ownership, or profit motive to the owner under such circumstances, as a distinguishing factor would not be acceptable to the copyright owner.

You have heard it said that a community antenna is analogous to an apartment house master antenna system. This is true. The equipment functionally and technically is similar. H.R. 4347 seems to make apartment house systems liable, and without regard to where they are located. An apartment house system in Phoenix, Ariz., under this bill, seems to be covered even when it receives only the same Phoenix channels as are available on rooftop antennas.

Where is the logic in this? My client owns and operates a community antenna system in the city of Phoenix receiving Phoenix stations. He is covered by this proposed legislation.

Suppose the copyright proprietors, as one did at one time, say that they would probably apply a so-called "rule of reason" to apartment house systems. If this rule of reason means exempting the apartment house systems, should not my client who rents an antenna service to individual homeowners in Phoenix also be exempted in the same city as an exempt apartment house with respect to the same stations?