process would achieve, as a matter of policy, Congress should stop and take note, and the least that could be done is to subject this aspect to the full legislative process with hearings and with study.

Mr. Chairman, I do believe that we should have in formal printed form assurance in a plan of this kind that complaints could be issued only by the Commission; that bureau heads should be appointed by the Chairman, subject to confirmation of the Commission and that if certiorari is adopted as a procedure, the examiner should be appointed and confirmed by the Senate or in some other formal way. These are some of the requirements that I think would be inescapable if we follow the line of reasoning which I have been trying to delineate today. Of course, we can't amend the plan. We either have to accept it or reject it, I suppose, according to the rules, but if we reject it and make known as a Senate some of the fundamental minimum requirements which we feel should be retained in the procedures and in the delegation of powers of this Commission, I have an idea that there will be forthcoming a modified plan of reorganization with which we can live.

Now I know the argument is made, and I read again from the President's message—

The remedy is a far wider range of delegations to smaller panels of agency members or to agency employee boards and to give their decisions and those of the hearing examiners a considerable degree of finality, conserving the full agency membership for issues of true moment.

Mr. Chairman, as a lawyer I should like to pose this question: What is of greater and truer moment than the making of decisions by the passing on of their final form by the Commission? There isn't anything which more faithfully and truly and accurately determines policy than a course of decisions and if that idea is going to be dissipated in favor of this kind of delegation of powers, then I can foresee the time when we will be headed for real trouble. In the interest of avoiding substantial damage to the public interest, and I for one would not want to have any part in it, I do feel that this plan is sufficiently defective that it should be rejected with specific recommendations as to which of the fundamental procedures which are so inherent in our judicial process, we would insist upon being retained.

The CHAIRMAN. We can only do that by speeches on the floor, I guess, and there would be different views among the Members regarding that, possibly.

Senator HRUSKA. I am sure there is a division of opinion on this general subject.

The CHAIRMAN. Yes. As you pointed out, Senator, this plan must be accepted or rejected as it is. We can't modify it and we can't amend it, but I recall one plan-I have forgotten which agency it applied to I believe it was REA-we did debate it and the plan was defeated and then subsequently a new plan was sent down, as you indicated, omitting the objectionable features of the first plan.

Senator HRUSKA. I am reminded that in the Post Office Department there was a similar matter some time ago with reference to postmasters. There is the history on that plan and, as I recall, there was a resolution of disapproval approved by the committee. So, for whatever influence it may have with this honorable body, I close my

staternent.

The CHAIRMAN. Do you have any questions?

Senator MUSKIE. I would like to clarify my understanding of the plans. It is a fact, is it not, that any delegation which may be authorized by the plan, if adopted, is subject to action by the full Commission.

Senator HRUSKA. Yes; three Commissioners can adopt any delegation of powers to which reference is made in section 1(a).

Senator MUSKIE. So that the full Commission may or may not approve delegations as broad as that?

Senator HRUSKA. Exactly and, as I pointed out in the case of issuing complaints, the present Chairman says he is unalterably opposed to having anybody in the Commission do it, but the power exists in this plan. We have no assurance Mr. Dixon is going to be there forever. That may change, and there are other powers just the same which reside in that plan and can be used. They exist. If they are not going to be used, why put them in the plan?

Senator MUSKIE. May I ask one more question? What are the reasons, one of the reasons given in these plans that it would enable the Commission to handle their workloads more expeditiously and efficiently. Have you commented on that?

Senator HRUSKA. Yes, I have, and I am serving, incidentally, on the subcommittee for Improvement of Judicial Machinery, and that is one of our problems. How do you reduce this congested court load in the 12 or 13 centers of congestion?

Senator MUSKIE. I notice Commissioner Anderson suggests greater manpower as the answer.

Senator HRUSKA. Yes.

Senator MUSKIE. But do you think, whatever your criticism of the plan may be, and you have made that criticism clear, do you believe that these plans would be of assistance in cutting the workload? Senator HRUSKA. In cutting manpower?

Senator MUSKIE. No; in equipping the commissions to handle their workload.

Senator HRUSKA. I certainly think it would make it more efficient. I shouldn't say more efficient because efficient implies merit. It would make it more expeditious. But, you see it would be at the price of sacrificing certain fundamental legal concepts which we have lived with ever since we have been a nation, and they are being frittered away fast enough without getting into the act by this wholesale method here. Expedition is good and speed is good and dispatch is good, but we should not sacrifice the quality of justice. There are vast properties and financial issues at stake and legal precedents which are made and judged by this commission.

Senator MUSKIE. In what other ways-again I came in late, so I don't know to what extent you covered this-in what other ways could you improve or equip the Commissions to deal with their work more expeditiously?

Senator HRUSKA. I think there are several.

Senator MUSKIE. We would like to have them in the record if they are not already in the record.

Senator HRUSKA. They are in the record. One of them is the Chairman's proposal on project attorneys, for example. This is a procedure where one man can follow all of the way through instead of having a

fieldman and bringing him into Washington and then the man in Washington says, "This is not enough evidence, I need more." Then he has to send it back through channels. If you have a project attorney follow through on a case, that is an example. But, Senator Muskie, it seems to me, regardless of how much you streamline the procedure you can't get away from Governor Anderson's proposal that we simply must have more manpower. We are going to have to have it, and we have been stingy about it this last decade. I don't know whether to blame the Republican President or Democratic Congress, but between the two of them they have kept the appropriation close to an $8 million mark and they have not budged from it. Although the Procedure Act says that there shall be sufficient examiners hired to do thus and so, they can't hire any more than we give them money for. But in order to meet this situation, we are going to have to have more manpower.

The CHAIRMAN. Thank you, Senator Hruska.

Senator HRUSKA. Thank you for your courtesy and also for your tolerance.

The CHAIRMAN. Mr. Booth, come around, please. Have a seat and identify yourself for the record.

STATEMENT OF ROBERT M. BOOTH, JR., PRESIDENT, FEDERAL COMMUNICATIONS BAR ASSOCIATION

Mr. BOOTH. I am Robert M. Booth, Jr., an attorney, with offices at 1735 DeSales Street, NW., Washington 6, D.C. I appear as president of the Federal Communications Bar Association.

Mr. Chairman, I have a prepared statement which I handed to the committee staff.

The CHAIRMAN. Now, Mr. Booth, we have your statement. Would you like to have it inserted in the record in full and then comment on it and highlight your viewpoints or do you prefer to read your statement?

Mr. BOOTH. Whichever you think would be more expeditious and more useful to the committee.

The CHAIRMAN. I may say we have until 12 o'clock, which is some 28 minutes. All of that time is yours and I will leave it up to you as to how you want to use it. The reason I am saying that, the Senate will meet at 12, and I think we will want to be over there today, although we have permission to meet while the Senate is in session. Mr. BOOTH. Perhaps if I would go through the statement and enlarge upon it as I go it would be most helpful and then I would be glad to attempt to answer questions.

The CHAIRMAN. Very good.

Mr. BOOTH. My appearance in opposition to Reorganization Plan No. 2 of 1961 has been authorized by appropriate resolution approved unanimously by the executive committee of the association.

At the outset, I should like to emphasize that the Federal Communications Bar Association supports an improvement in the efficiency and procedures of the Federal Communications Commission. The association long has been concerned with undue delays in the processes of the Commission and has worked with the Congress, the Commission, and their staffs in efforts to expedite work of the Com

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mission. For example, the association has participated in a large number of congressional hearings over the past 25 years on communications and procedural proposals. When the Commission a few years ago revised part I of its rules relating to practices and procedures, the association actively assisted in the drafting of the revised rules. A year and a half ago, the association created four ad hoc committees to study the Commission's practices and procedures in the processsing of broadcast applications. I might say, Mr. Chairman, that the major delays of the Commission appear to be in the field of broadcasting.

The committees were composed of attorneys, consulting engineers, and members of the Commission's staff. To date, only a very few of the minor recommendations contained in the committee reports have been adopted by the Commission.

For more than 34 years, Congress has guided and supervised the communications facilities and services in this country, first through the Radio Act of 1927 and currently through the Communications Act of 1934 and its amendments. The Federal Communications Bar Association urges that Congress continue its guidance and supervision; however, Reorganization Plan No. 2 of 1961, for all practical purposes, would shift most of the responsibility for such guidance and supervision from Congress to the executive branch of our Government.

The association's opposition to Reorganization Plan No. 2 may be briefly summarized as follows:

1. The right to full and complete hearing would be abolished by elimination of the right of review upon request by an interested party. 2. Elimination of procedural rights including the right of review would materially increase the workload of the U.S. Court of Appeals for the District of Columbia.

I may say it is our view the proposal to eliminate the right of review would eliminate perhaps some work at one level of our Government system and shift it someplace else without adequate provision for the handling of the additional workload. This I do not believe would be a real savings.

3. The plan is so vague and indefinite that procedures which might or would be followed cannot be determined.

4. The concept of bipartisan Commission might be destroyed.

5. Most of the desired and worthwhile objectives can be achieved under present provisions of the Communications Act of 1934, as amended, and the Administrative Procedure Act.

Hearings before the Commission fall generally into two classes, adjudicatory and rulemaking. Adjudicatory hearings are held on applications for new stations, applications for modifications of facilities of existing stations, applications for renewal of licenses, show-cause orders and revocations. Section 409 (b) of the Communications Act now provides that following the issuance of an initial decision—

*** the Commission shall permit the filing of exceptions to such initial decision by any party to the proceeding and shall, upon request, hear oral argument on such exceptions before the entry of any final decision, order, or requirement.

The reorganization plan would abolish the right to file exceptions to an initial decision, would abolish the right of oral argument before the Commission and would abolish the right of review and decision by the

Commission. In substitution of the right of an administrative appeal, section 1(b) of the plan merely would afford a party the right to petition the Commission for review which would be granted only if "a majority of the Commission, less one member thereof" agrees to accept the appeal. Not even the U.S. Court of Appeals for the District of Columbia Circuit may refuse to accept appeals from decisions of the Commission it does not care to consider.

We have had some discussion as to how these petitions for review would be submitted. Some of our members feel that the actual workload of the Commission in processing such petitions would be increased. First we would have to set forth in our petitions the basis of our request for review of the hearing examiner's decision. That request would have to be studied by someone, whether by the present staff or the review staff, whether by the legal assistants of each Commissioner, we don't know, but the work will still have to be done. Then if the review is granted, then we are right back where we started or where we are today. There will be filings of exceptions and reply exceptions and study by the staff. It seems to us that unless a plan is devised, and we don't know how it can be devised, to reduce the workload that actually this may increase the work and increase the workload of the Commission, and increase the delays of the Commission, rather than speeding up the process and reduce the work. That is what I mean when I said the plan is so vague and indefinite we just don't know what procedures will be followed.

The filing of exceptions to an initial decision is provided for by section 8(b) of the Administrative Procedure Act and section 409 (b) of the Communications Act and has proven extremely effective, particularly since the enactment of section 8(b) of the Administrative Procedure Act which requires that

The record shall show the ruling upon each such finding, conclusion, or exception presented."

I might say that that section 8(b) has been interpreted by the court and, as a result, the procedures followed are rather simple. They are well understood and have caused no difficulty in the last few years. The CHAIRMAN. That would be abolished?

Mr. BOOTH. Yes; it would be.

The CHAIRMAN. What would be the substitute for it?

Mr. BOOTH. Let me backtrack to this extent: We do not know whether or not the Reorganization Plan No. 2 would actually repeal the provisions of 8(b) of the Administrative Procedure Act. We have some members who feel that this, the reorganization plan, would repeal the provisions of 8(b) which I have just quoted. Some of us feel that it would not repeal and I touch upon that later on in my statement, not from the standpoint of taking the position that it will repeal or will not repeal, but merely that again it will produce litigation and until that litigation is concluded some 2 or 3 years hence, we just don't know where we will be. It is our position that we should not take the risk, but should spell out by legislation just what procedures are to be followed so that there will be no question when we get to court.

The importance of oral argument long has been recognized by the courts and by most, if not all, administrative agencies. The right of oral argument affords the administrator the opportunity to ask ques