The association suggests that your committee consider making amendments to section 12 (c) of the pending bill so that the amended subsection through line 6 on page 16 would read:

(c) When any instrument of authorization is granted by the Commission without hearing as provided in subsection (a) hereof, such grant shall remain subject to protest as hereinafter provided for a period of thirty days. During such thirty-day period any party in interest, as defined in subsection (c) hereof, may fine a protest under oath, directed to such grant and request a hearing on said application so granted. Any protest so filed shall contain such allegations of fact as will show the protestant to be a party in interest, that his interest will be adversely affected, and shall specify with particularity the facts, matters and things [in issue] relied upon, but shall not include issues or allegations phrased generally. [Upon the filing of such protest] If the protest meets the foregoing requirements, the application (Amendments italicized; matter omitted

in black brackets.)

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The Commission could then consider the protest so as to determine whether the protest alleged the necessary facts, much the same as a court will consider a demurer or motion to strike the complaint for failure to state a cause of action.

It is further suggested that the word "effective" be inserted before the word "date" in line 20 on page 16 of the pending bill.

Section 12 (d) seems to be the same as section 309 (b) of the act. Section 13

This section provides that in applications for the transfer or sale of a radio station, the Commission shall confine itself as to the qualifications of the proposed transferee and to ascertain whether the qualifications of the proposed transferee are such as should be required of an original permittee or licensee. The criticism has been made that in some transfer proceedings the Commission has gone far afield in making extensive inquiry as to the conduct and station operations of the seller or transferor. This section ties in with lines 19 to 25 in page 13 of the pending bill, and is favored by the association. Section 13 is a substantial redraft of Section 310 (b) of the act.

The adoption of the amendment proposed by section 13 to section 310 (b) of the act would outlaw the AVCO procedure. A year or so ago the Commission had under consideration the application for the transfer of the Crosley Station WLW, at Cincinnati, Ohio, to the Aviation Corporation of America (AVCO). In its decision approving the transfer, the Commission announced the policy that thereafter the Commission would require the terms of the proposed sale to be published in a local newspaper where this station was located and in the Federal Register; that 60 days would be allowed for the filing of a competitive application on the same terms as the original contract; that the Commission would then consider the two applications and if it appeared that the first application was in the public interest, it would proceed to approve the transfer wihout a hearing, or if this conclusion could not be reached by an examination of the two applications, the competitive applications would be set for hearing. The association feels that the AVCO procedure is probably beyond the power of the Commission to adopt, and that such procedure violates the usual concept of fairness.

Section 14

This section substantially amends section 312 of the act relating to revocation of licenses. The principal change proposed to be made

to section 312 (a) of the act is to provide for a cease-and-desist-order procedure. In the present act the Commission must grant or deny a revocation of station license. It has been generally considered by the association, the industry, and probably by the Commission that the penalty of a revocation could not be justified in many revocation proceedings but that the act should contain some cease-and-desist procedure which would be more in keeping with minor violations that might be found to exist. S. 814 did not have any cease-and-desist section, but the confidential report print, section 19 (b), page 50, does contain a cease-and-desist procedure which seems to be the same as proposed in S. 1333.

The association recommends to your committee that section 14, line 3 on page 19, be amended by striking out the word "and" in line 3 and inserting in lieu thereof ", prohibitions or." The association also approves subsections (c) and (d) in section 14 of the pending bill. Section 15

This section relates to political broadcasts and the association considers this to be a matter of substance rather than procedure. Consequently, it takes no position therein.

However, subsection (f) of section 15 of the bill might be considered to be procedural. Section 315 of the act provides—

that such licensee shall have no power of censorship over the material broad-cast under the provisions of this section.

Notwithstanding this provision, we believe that lawyers generally have advised their station clients that they could examine the text of a proposed political speech to ascertain whether it may contain libel or slanderous statements for which the licensee might be liable in damages; but that such examination of the text of the proposed speech would not permit the licensee to require the speaker to change in any way his ideas or proposed statements as to public issues and matters of that sort. S. 1333 continues the prohibition of censorship by the licensee now contained in the act, but attempts to protect the licensee by providing that—

licensees shall not be liable for any libel, slander, invasion of right of privacy, or any similar liability imposed by any State, Federal, Territorial, or local law for any statement made in any broadcast under the provisions of this section, except as to statements made by the licensee or persons under his control.

The question arises, if subsection (b) be adopted, whether or not it would be inconsistent for the licensee to examine the text of a broadcast as to libel and slander when the latter provisions of the subsection purport to give immunity for the broadcast of any such statements unless the statements are made by the licensee or persons under his control. There is also the question as to whether the immunity would extend beyond the Federal courts.

However, the association realizes the difficulty surrounding this matter and is disposed to approve subsection (f) on the idea that it is a distinct improvement of the present troublesome situation.

Section 16

This section relates to censorship. The association regards this as a matter of substance rather than procedure, and takes no position therein.

Section 17

This section proposes to add two new sections to the act relating to the discussion of public or political questions. Since this is a matter of substance and not one of procedure, the association takes no position therein.

Section 18

This section relates to the identification of source in news broadcasts. This is not a matter of procedure and the association takes no position therein.

Section 19

This section relates to limitations on chain broadcasting and station ownership. The matters involved in this section are substantive and not procedural. The association takes no position therein.

Section 20

This section proposes to amend section 326 of the act on censorship and indecent language. The section is one of substance and not procedure. It may be noted that the first sentence of section 326 of the act relating to censorship has been dropped out of the section, since censorship has been covered by section 16 of the pending bill. The second and last sentence of section 326 of the act has been retained in substantially the same language as it appears in section 326 of the act, but section 20 also provides that no person shall knowingly make or publish any false accusation or charge against any person by means of radio communication. It is assumed that the author of the bill had in mind radio broadcasting of a false accusation, which is an entirely different sort of thing from a false accusation made privately in a telephone conversation being carried on by radio telephone. This, of course, would technically be "by means of radio communication." It may be that your committee will desire to strike out the words "make or publish" in lines 6 and 7 on page 31 and insert in lieu thereof the word "broadcast."

Section 21

This section amends section 401 of the act by adding a new subsection (d) providing for declaratory judgments by the Commission. For several years the association in all hearings on bills to amend the Communications Act has urged that the act be amended so as to authorize declaratory judgments. Section 15 of S. 814 had a long and detailed declaratory-judgment procedure. When Mr. Bingham was testifying for the association on S. 814, questions from some members of the Senate committee indicated an apprehension that the Commission might be overwhelmed with petitions for declaratory judgments. This fear was apparently recognized in the confidential-report print, since it amended the section 15 of S. 814 and the section in the confidential-report print reads exactly the same as section 21 (d) of the pending bill.

The association approves section 21 and believes that it is important to have a declaratory-judgment procedure in S. 1333, even though there is a declaratory-judgment procedure in section 5 (d) of the Administrative Procedure Act. Section 19 (e) of the Administrative Procedure Act setting out the scope of review does not authorize an

appeal from a declaratory judgment, whereas S. 1333, in section 22, subsection (7), authorizes an appeal under section 401, as amended by section 21 (d) by any person who is aggrieved or adversely affected by a declaratory order. Section 10 (c) of the Administrative Procedure Act does, however, authorize a judicial review of any agency action made reviewable by statute. Consequently, the declaratory-judgment procedure should be kept in this bill.

Since the hearings on S. 814 the Administrative Procedure Act has become law, and section 5 (d) of that statute provides for declaratory orders by an agency, viz:

(d) DECLARATORY ORDERS.-The agency is authorized in its sound discretion, with like effect as in the case of other orders, to issue a declaratory order to terminate a controversy or remove uncertainty.

There has been no court decision on that section of the Administrative Procedure Act, nor are we quite certain as to the scope of the jurisdiction conferred. The association recommends that section 21 (d) of the pending bill be amended by adding after the word "controversy" in line 14, the words "or to.remove uncertainty." The suggested amendment is a part of the language used in declaratory judgment provision, section 5 (d) of the Administrative Procedure Act. The suggested amendment broadens the declaratory judgment provision of the pending bill so as to more nearly conform to the section in the Administrative Procedure Act. There may be situations when the Commission might welcome a petition by a licensee for a declaratory judgment so as to "remove uncertainty" as to some particular situation.

Section 22

Section 22 relates to what is ordinarily referred to as the appellate sections of the Communications Act embodied in section 402 thereof.

The appellate sections of the Communications Act have been the subject of a large part of the litigation with the Commission in the United States Court of Appeals for the District of Columbia. Through the years the association has probably been more concerned with efforts to secure a clarification of the appellate sections than almost any other part of the Communications Act. The association has given consideration to the fact that the Administrative Procedure Act contains in section 10 thereof provisions for judicial review. The association has in mind that the provisions of judicial review in the Administrative Procedure Act are stated in general terms since they are applicable to all agencies. There have been no court decisions. interpreting the judicial review provisions of that act. Consequently, the association is of the opinion that section 22 of the pending bill, which modifies section 402 of the Communications Act, should be adopted. There are two good reasons for this: (1) The provisions in section 22 of the pending bill relate specifically to communications, and we have the benefit of the interpretations of these provisions by many court decisions; and (2) there will be no conflict between the judicial review provisions of the Administrative Procedure Act and the proposed amendments to section 402 of the Communications Act. Section 12 of the Administrative Procedure Act specifically provides:

Nothing in this Act shall be held to diminish the constitutional rights of any person or to limit or repeal additional requirements imposed by statute or otherwise recognized by law.

Consequently, the amendments to the appellate section of the Communications Act in the pending bill would be deemed to be supplementary to the judicial-review provisions of the Administrative Procedure Act. If assumption be made that the Administrative Procedure Act fully and adequately takes care of the appellate situations of the Communications Act, then it would seem to follow that existing section 402 of the Communications Act should be repealed outright, and this seems to the association to be too important a matter to take chances on in the absence of clear judicial interpretation. The legislative history of the Administrative Procedure Act clearly indicates that Congress felt that the statutes as to various agencies would be amended to take care of situations that could not be covered in an over-all Administrative Procedure Act.

It should be noted that the amendment to section 402 (a) of the Communications Act is amended so as to transfer from a three-judge district court to the United States Court of Appeals for the District of Columbia some orders of the Commission which, under section 402 (a) of the Communications Act, were in the sole jurisdiction of the three-judge district court under the Urgent Deficiencies Act, but shall be considered by the United States Court of Appeals for the District of Columbia.

The effect of the language in parethenses in lines 4 and 5, page 32, of the pending bill will be to extend to the United States Court of Appeals for the District of Columbia appellate jurisdiction over certain types of orders as to which a three-judge district court has sole jurisdiction at the present time.

The association feels that this proposed change as to jurisdiction should be generally favored. At best, the three-judge district court procedure is inconvenient to the judges and may be unduly expensive to the Commission and private litigants. Furthermore-and this is important the United States Court of Appeals for the District of Columbia has established a body of law on communications. In the very nature of things, the three-judge district court procedure cannot do that.

Section 22 (b) spells out in complete detail the types of cases which may be appealed to in the United States Court of Appeals for the District of Columbia from the decisions and orders of the Commission. Section 402 of the act as it now stands is in general language of a few lines and lacks clear information in specifiying the types of decisions and orders as to which an appeal may be taken.

In order to obtain a review of the action of the Commission, it is necessary to initiate litigation in a three-judge district court in the district where the complaining party or parties reside. Undoubtedly, it is in the public interest that an appeal from a denial of a transfer application should be heard in the United States Court of Appeals for the District of Columbia. The record has already been made in the hearing by the Commission. It would seem to be a needless expense and a waste of time and effort to start all over in a three-judge district court and have to make the record there.

The paramount advantage of the amendment proposed by section 22, subsection (d), of the pending bill, to section 402 of the act, is that it clarifies the types of decisions and orders of the Commission as to which appeals may be had. Subsections (1), (2), (3), (4), (5),