oral argument was heard last year, illustrates the benefits the Commission would derive from its new-found flexibility under the plan." [Italic supplied.] As indicated in the enclosed letter to Senator Pastore, the establishment of such an intermediate review procedure would contravene the primary purpose of the reorganization plans, namely, expedition of the administrative process, by merely substituting review by an employee board for review by the full Commission. Instead of eliminating review entirely in cases not worthy of agency review, the possibility exists that the agency might desire to review the action of the intermediate employee review board thereby lengthening the already undue process and causing unnecessary additional expense to private litigants as well as the Government. We can well appreciate that agency members desiring to conserve their time for the more important policy matters may find it convenient to delegate final decisionmaking to such an employee board. However, as indicated, the evil of delay may thereby be compounded rather than alleviated. Moreover, the private litigant will be receiving a review not by the Commission appointed by the President for this purpose but a subordinate board which has not heard the evidence or examined the witnesses or been subject to the exhaustive qualification process as has the hearing examiner. The evil of the institutional decision which was consigned to limbo by the abolition of the review staff (Reorganization Plan No. 2, sec. 3) will be reinstated under the guise of an employee review board. Also, as indicated in the enclosed letter, it is our belief that the employee review board was only intended to be utilized in cases where no hearing is required by statute or the Administrative Procedure Act, e.g., an airline application for exemption authority, an application for a standard broadcast license which is uncontested. The conference respectfully submits this matter for your careful consideration with the hope that it will be clarified at the forthcoming hearings on the substitute legislation for Reorganization Plan No. 2. If your honorable committee so desires, the conference will be available to give testimony on this subject. Respectfully submitted. Senator ROBERT S. KERR, Senate Office Building, Washington, D.C. HENRY S. SAHM, President. OKLAHOMA TELEVISION CORP., Oklahoma City, Okla., May 18, 1961. DEAR SENATOR: Reorganization Plan No. 2, submitted to the Congress on April 27 by the President, reorganizes the Federal Communications Commission, and becomes effective June 26 unless rejected by a record vote of either the Senate or House. A similar plan (Reorganization Plan No. 11) was submitted to the Congress in 1950. Extensive hearings were held on the plan on April 24, 25, and 26, 1950, by the Senate Committee on Expenditures in the Executive Departments. The Senate adopted a resolution disapproving Reorganization Plan No. 11, which action prevented the plan from becoming effective. Reorganization Plan No. 2 should be defeated because (1) The concept of a bipartisan Commission of seven Commissioners, with not more than four from the same political party, with equal duties and responsibilities is destroyed. The Chairman, who is appointed by the President, is given the exclusive authority to determine and assign the Commission personnel, including a division of the Commission, an individual Commissioner, a hearing examiner or an employee or employee board, to carry out the function delegated by the Commission under section 1 of the plan. The Commission thereby becomes to the public a one-man agency instead of a seven-member bipartisan Commission. (2) The other six Commissioners thus become secondary to the Chair man. (3) Plan No. 2 expressly abolishes the right to file exceptions or to make an oral argument given in section 409 (b) of the Communications Act. 70910-61-7 (4) The plan makes many basic changes in the application of other sections of the act, which cannot be actually determined at this time. (5) The Communications Act expressly gives the right of one administrative review of decisions by hearing examiners or other designated hearing officers. This right of one administrative review becomes discretionary, and thereafter depends upon the Commission exercising its initiative to review a decision, or upon three Commissioners voting for a review. Unless one of these two discretionary steps is taken, there is no review of an initial decision by a hearing officer. (6) The making of substantial changes in the Communications Act by Executive order is unwise and unnecessary legislation. The foregoing is not intended as an exhaustive examination of plan No. 2, but we hope it will be sufficient to apprise you of the importance of the proposal. Sincerely yours, Hon. JOHN SPARKMAN, U.S. Senate, Washington, D.C. EDGAR T. BELL. WOZK, OZARK BROADCASTING CORP., DEAR JOHN: As you know, we operate through a local corporation, radio station WOZK in Ozark, Ala. Having studied Reorganization Plan No. 2 covering the Federal Communications Commission, we feel that it is very important to the entire broadcasting industry that this plan be vetoed by Congress. We would appreciate anything you can do to see that Congress does veto this plan before it become law on June 27. As you know, your work in the Senate on behalf of this section is greatly appreciated by the people in this area, and we try to keep them informed by carrying your weekly radio program, your news releases, and news from the Associated Press. Thank you for any assistance you may be able to give on this matter. Hon. JOHN J. SPARKMAN, U.S. Senate, Washington, D.C. Douglas, DOUGLAS BROWN, President. WULA, Eufaula, Ala., May 17, 1961. DEAR SENATOR SPARKMAN: We know you are familiar with the President's Reorganization Plan No. 2 covering the Federal Communications Commission. This plan would give the FCC Chairman absolute control over the seven-man Commission. We sincerely hope that you will do everything in your power to veto this plan. Not only are we opposed to such a concentration of authority in the hands of the Chairman of the FCC, but the broad plan of regimentation of programing that appears to be taking place, we feel, is unconstitutional and a detriment to broadcasting as we know it today. We understand this measure will become a law 60 days from its date of delivery on April 27, and we will certainly appreciate anything you could do to obtain a veto prior to that time. Sincerely, MARTIN J. DARITY, Station Manager. KVOO, Tulsa, Okla., May 20, 1961. Hon. ROBERT S. KERR, Senate Office Building, Washington, D.C. We sincerely hope that you will join us in opposing this type of legislature. Regrettably, television has been under fire and still is for that matter. We are being accused of many things that we never claimed in the beginning. We fully realize that we are far from perfect-but who isn't? It is not my purpose to whitewash the industry but we, as an individual station, are constantly making every effort to improve ourselves. Should you need any further information from us, please do not hesitate to drop me a line. Your keenest consideration will be enormously appreciated in this matter. Respectfully, JOHN DEVINE, General Manager. Subject: Reorganization Plan No. 2 of 1961, providing for reorganization in the Federal Communications Commission, referred to the House Committee on Government Operations (April 27, 1961, 87th Cong., 1st Sess. H.R. Document No. 147). Prepared by: Dow, Lohnes and Albertson. Date: May 16, 1961. Reorganization Plan No. 2 of 1961 was prepared by the President of the United States and transmitted to the Senate and House of Representatives on April 27, 1961, pursuant to the provisions of the Reorganization Act of 1949, as amended. Although the reorganization plan, as expressed in the President's Message of April 27, 1961, has a laudable objective, the proposal is defective for the following reasons: 1. The provisions of section 1 granting to the Commission the authority to delegate any of its functions to a division of the Commission, an individual commissioner, a hearing examiner or an employee or employee board, are too broad. Since all Commission duties and functions may be delegated, subject only to discretionary review, radical changes in the administration of the Communications Act could take place in such a way as to abolish the effectiveness of the concept of a 7-man Commission as presently constituted. In the administration of the Act, the Commission would have the power to put important policy matters and even adjudicatory matters, such as renewals, in the hands of delegated personnel. Further, the proposal is completely unclear as to the procedures that would govern Commission proceedings and sheds no light upon the type of changes that would be adopted by the present or future chairmen of the Commission, to supplant the present system of full Commission participation in adjudicatory and policymaking matters. 2. Section 1 also abolishes the right to file exceptions to decisions of hearing examiners in contested cases, such as renewal, revocation, and comparative broadcast cases, and denies the right to present oral argument in support of or in opposition to such exceptions. With review discretionary only, it denies the right of review by even a single commissioner or a board of commissioners. This proposal destroys valuable rights and places too much power in the hands of the person who decides the case initially. The denial of a right to an appeal to the Commission could mean that in an important case, such as a revocation proceeding, a cease-and-desist order, and a forfeiture order, no automatic appeal would lie from an adverse decision by the presiding officer. Oral argument is a time-honored step to an informed decision and an appeal from an initial decision by a presiding officer to the Commission itself is an important part of administrative due process. These rights, guaranteed by the Communications Act, should not be abrogated by adoption of the President's proposal. 3. Section 2 grants to the Chairman the exclusive right to determine which Commission personnel shall carry out the functions delegated by the Commission under section 1. This right is so all-embracing as to alter the hitherto accepted concepts of a 7-man Commission and again places too much authority in the hands of the Chairman. Conclusion The underlying purpose of Reorganization Plan No. 2-the elimination of excessive delays and the reduction in Commission workload-are commendable objectives, but such improvements must be consistent with sound principles of administrative fair play. The delegation of unbridled authority to the Chairman and others and the abolition of the right to oral argument and to review by the Commission of important adjudicatory and policy matters substitutes efficiency for fairness. EXCERPT FROM EDITORIAL IN BROADCASTING MAGAZINE, ISSUE OF MAY 15, 1961 (P. 32) There is one immediate job that needs to be done with or without the support of the NAB. That is congressional veto of the President's reorganization plan that would give the FCC chairman absolute control over the 7-man FCC. So far, Governor Collins has not seen fit to oppose this mischievous legislation. After the Minow demonstration last week it should be clear what might happen with 1-man control. The chairman would be enabled to pick his own divisions or panels of commissioners for particular assignments and in that manner virtually guarantee the results he wants in any given circumstance. Mr. Minow himself, unwittingly, helped the cause of those who oppose the FCC Packing Plan. Throughout his rather remarkable address he eschewed the collective "we." It was first person singular throughout-what "I" rather than what the FCC would do. Fortuitously, many members of Congress were quickly made aware of the Minow ultimatums. They were the guests of constituent broadcasters at the NAB reception held only a few hours following the chairman's address. And most of them were indignant. Broadcasters interested in the preservation of what freedoms remain and in their own future well-being must move now to parry the first threat of the New Frontier. They should urge their congressional delegations-irrespective of party affiliations-to veto Reorganization Plan No. 2 covering the FCC. This measure becomes law 60 days from its date of delivery on April 27 unless vetoed by the Congress before then. There are members of both Senate and House who would willingly lead a veto movement. But they must know they will have adequate support. That support can be demonstrated if broadcasters will promptly let their elected legislators know. There isn't much time left. Hon. STUART SYMINGTON, Senate Office Building, Washington, D.C. KMOS-TV, Sedalia, Mo., May 16, 1961. DEAR SENATOR SYMINGTON: I respectfully ask that you veto President Kennedy's Reorganization Plan No. 2 covering the Federal Communications Commission. We in the broadcasting industry call it The FCC Packing Plan. Last week in Washington FCC Chairman Minow made public an alarming personal disregard for the first amendment of our constitution and the anticensorship provision of the Communications Act. Chairman Minow's views are radical, tryannical, and illogical to a great degree. To concentrate all FCC power into the hands of this one, or any one man would be a great disservice to the freedom and methods of legal regulation that are the very heart of the American system. No matter where you look you will find that our country has found it wise to divide such regulation power into a number of people of various background. Our jury system, Supreme Court system, and entire system of Government is designed to provide checks and balances against the dictates, good or bad, of one man's thinking. Of course, your present job is to prevent the concentration of power and to provide different thinking and views in the Government of the United States. In his speech before the National Association of Broadcasters, Chairman Minow used 105 capital "I's" in obvious disregard to the six members of his commission who certainly have more experience in the job, and whose very presence are testimony to the straight thinking principle that "two heads are better than one." Chairman Minow's speech was also carefully designed to make headline news and pander to the competitive press. Even at that, I know of one competitive press, The Wall Street Journal, that did not agree with Minow's thinking. Certainly there is room for improvement in television programing, but it is extremely dangerous for one or two people in Government to control broadcasting or any other such important phase of American life. I would appreciate knowing what action you intend to take toward Reorganization Plan No. 2 covering the FCC and the other regulatory services. If you do not yet see the desirability in vetoing this socialistic step, I would like the opportunity to go into greater detail with you on the many other implications that will most surely lead you to make an immediate veto of this dictorial plan. Yours very truly, Hon. JOHN L. MCCLELLAN, JOHN GARNER. CROSSETT, ARK., May 19, 1961. U.S. Senate, Senate Building, Washington, D.C.: The Arkansas Broadcasters Association, representing both AM and TV stations, urge you to veto FCC Reorganization Plan No. 2. Regards. JULIAN F. HAAS, President, Arkansas Broadcasters Association, Radio Station KAGH. TELEVISION STATION WSFA-TV, Montgomery, Ala., May 23, 1961. Hon. JOHN SPARKMAN, U.S. Senate, New Senate Office Building, DEAR JOHN: It's not often that I have found it necessary to call upon you to give careful and fair consideration to matters that affect my industry. We are now faced, however, with the possibiliity of an act affecting the FCC which most all legitimate broadcasters feel is most distasteful. Reorganization Plan No. 2, submitted by the President with his transmittal message of April 27, 1961, automatically becomes effective on June 26, unless rejected by either the Senate or the House. The expressed purpose of Reorganization Plan No. 2-the elimination of excessive delay and reduction in Commission workload-are commendable objectives; but under the plan they do not appear to be consistent with sound principles of administrative fairplay. Under the proposed plan, section No. 2 grants to the Chairman the exclusive right to determine which Commission personnel shall carry out the functions delegated by the Commission under section 1. This right is so all-embracing as to alter the hitherto accepted concepts of a seven-man Commission and again places too much authority in the hands of the Chairman. The delegation of unbridled authority to the Chairman and others and the abolition of the right to oral argument and to the review by the Commission of important adjudicatory and policy matters substitutes efficiency for fairness. I respectfully urge that you give careful thought to this measure and I sincerely urge your veto of this plan. Best personal regards, CARTER HARDWICK, Managing Director. |